NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4309-13T2
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, February 29, 2016
v. APPELLATE DIVISION
STEPHON G. WRIGHT,
Defendant-Appellant. _____________________________
Submitted December 7, 2015 – Decided February 29, 2016
Before Judges Sabatino, Accurso and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-11-2039.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Rookmin Cecilia Beepat, Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
Following the denial of defendant Stephon G. Wright's
motions to exclude the testimony of the victim identifying Wright as the man who robbed him at gunpoint and to suppress
statements Wright made to the police, he entered a conditional
guilty plea pursuant to a negotiated agreement to first-degree
armed robbery, N.J.S.A. 2C:15-1; and was sentenced to eight
years in state prison subject to the periods of parole
ineligibility and supervision required by the No Early Release
Act, N.J.S.A. 2C:43-7.2. He appeals pursuant to Rule 3:9-3(f),
contending the court erred in denying his motions and, in the
alternative, that his sentence is excessive. He frames the
issues as follows:
POINT I
THE COURT BELOW COMMITTED REVERSIBLE ERROR IN DENYING THE MOTION TO SUPPRESS THE IDENTIFICATION, AS [THE VICTIM'S] OUT-OF- COURT IDENTIFICATION PRESENTED A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION, AND THE IDENTIFICATION PROCEDURE WAS NOT PROPERLY RECORDED. (Partially Raised Below).
POINT II
MR. WRIGHT WAS NOT APPRISED OF HIS MIRANDA RIGHTS PRIOR TO BEING SUBJECTED TO A CUSTODIAL INTERROGATION, AND THEREFORE, THE COURT BELOW ERRONEOUSLY DENIED HIS MIRANDA MOTION.
POINT III
THE MATTER SHOULD BE REMANDED FOR RESENTENCING.
A. The Sentencing Judge Engaged in Double Counting.
2 A-4309-13T2 B. The Sentencing Court Erred in Finding Aggravating Factors Three, Six, and Nine.
We find no error in the court's decision to admit the
identification evidence under the test established in State v.
Henderson, 208 N.J. 208 (2011), and thus reject defendant's
arguments on that point. We also reject Wright's arguments
regarding his sentence. We agree, however, that his statements
to the police were the product of the equivalent of custodial
interrogation without required Miranda1 warnings and should have
been suppressed. Accordingly, we reverse the court's decision
to admit the statements and remand for further proceedings.
The Pre-trial Hearing
Walking home from the Journal Square PATH station in Jersey
City at about three a.m. in the middle of the summer, three
brothers were accosted by a man on a bicycle. The man pointed a
silver gun at them and demanded they give him what they had in
their pockets. The brothers handed over an iPhone and about
fifteen dollars. After the man rode off, the young men hurried
toward their uncle's house and used a cell phone they had not
relinquished to call the police.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 A-4309-13T2 In addition to providing the police a description of their
assailant, the young men used an "app" to track the stolen phone
to the area of Grand and Prescott Streets. Jersey City police
officers Andrek and Harrison were dispatched to that location to
search for an armed black male, approximately 5'6" or 5'7",
wearing a white t-shirt and grey sweats and riding a blue bike.
They shortly came across an open garage with three or four
people lounging inside. A blue bike rested on the ground
nearby.
The officers drew their weapons and entered the garage.
Although none of the occupants claimed ownership of the bike,
the officers noticed one man, later identified as defendant, who
appeared nervous and matched the description of the robber. The
officers separated him from the group to speak to him outside
the garage. Officer Andrek testified at the hearing that the
officers immediately informed defendant he was being detained
because he fit the description of the perpetrator of an armed
robbery that had just taken place near Journal Square. He also
radioed the precinct they had a suspect.
Three other officers arrived as backup within a minute or
so. Officer Andrek detained defendant outside the garage, while
Officer Harrison joined the three newly arrived officers in a
search of the area. Shortly thereafter, Andrek was advised by
4 A-4309-13T2 radio that Detective Frascino was en route to the garage with
one of the victims to see whether he could identify defendant.
Andrek testified he relayed that information to defendant.
Before the victim arrived, however, one of the other
officers found a gun in an alleyway two houses away from where
Officer Andrek was holding defendant. Andrek testified that
when he was informed a gun had been recovered, he relayed that
information to defendant as well. That testimony led to the
following exchange:
Prosecutor: What, if anything, was Mr. Wright[']s reaction, expression, however you want to word it, when you informed him of these two things?
Officer Andrek: His expression was so — he was caught. He put his head down and sighed, and then he said fuck you, I got the cell phone, it's over there. And he motioned his head towards the direction of the gun.
The prosecutor followed up with this question.
Prosecutor: And, again, this wasn't based on questioning by you or [Officer] Harrison, this was Mr. Wright saying this only after you informed [him] the victim was on the way, and the handgun was recovered?
Officer Andrek: Correct.
Although the officer conceded on cross-examination that it would
have been "prudent" to have advised defendant of his rights when
the officer began "relaying information to [defendant] about the
5 A-4309-13T2 sequence of the investigation," defendant was only administered
his Miranda rights after he admitted possessing the cell phone.
Following Wright's admission, officers quickly recovered
the phone in an alley near where the gun was found and radioed
the information to the other units involved in the
investigation. The victim heard that radio transmission while
seated in the back seat of Detective Frascino's car on the way
to the showup. The victim testified he also heard over the
radio the police had recovered the gun as well. He claimed that
not only had he heard other officers had recovered his cell
phone before they arrived at the place the police were holding
defendant, but that Detective Frascino told him that as well.2
The victim testified that when they arrived at the showup,
he remained in the car while some officers stood nearby with a
man in handcuffs whom they said was "the guy we found with the
phone" and asked, "is this the guy who robbed you[?]" He
testified he was "positive" that defendant was "the right guy"
and that the entire incident, from robbery to identification,
took place in less than an hour. In response to the judge's
2 The witness gave different answers to similar questions posed by the prosecutor and defendant's counsel, leading the judge to comment at one point that "he's saying yes to any question he's being asked if you ask me." Having read the entire transcript of this hearing, we can confidently say that none of those testifying was a model witness, as all had difficulty either recalling or relating basic information.
6 A-4309-13T2 question of whether "the fact that you heard about the phone
being recovered have any impact on your identification at all,"
the victim said, "No it didn't."
Detective Frascino testified that he explained the
identification procedure to the victim,3 but denied telling him
the suspect had been found with the phone at the time of the
showup. Instead the detective maintained the information that
the phone had been located "came over the air, and [the victim]
was excited in the car and said they found my phone, and I only
stated that that's what they said over the air." The detective
also testified defendant was in handcuffs when they arrived for
the showup, but that he had the cuffs removed before walking
defendant to the car for the victim's identification. He did
allow, however, that it was possible the victim saw defendant in
handcuffs when they first pulled up.
3 The detective claimed he explained to the victim:
that we were [en] route to a location where there would be a subject that we want him to — that I would like him to take a look at. And when we get there, when you look at him you tell me if there's anything about him that he can tell me regarding that subject.
The detective made no mention of having warned the victim that the suspect might not have been the perpetrator and that the victim should not feel compelled to make an identification, as is required by the Attorney General Eyewitness ID Guidelines and Henderson. See Henderson, supra, 208 N.J. at 261, 276-78.
7 A-4309-13T2 Trial Court Opinion
The judge issued a written opinion denying the Wade4 motion.
After summarizing the testimony of the witnesses and reviewing
the Supreme Court's discussion of system and estimator variables5
in Henderson, the judge found that without doubt the showup was
impermissibly suggestive. He wrote:
After extensive questioning by the attorneys and the Judge, the victim stated that he was told "they have the person who has the phone." The victim specifically stated that the Officers told him this prior to showing him the suspect. The "suspect" was brought to the police car in handcuffs and positively identified as the perpetrator. There was only one individual that was brought to the unmarked vehicle for identification. These factors conveyed to [the victim] that the police believed they had the robber.
Notwithstanding the impermissible suggestiveness of the
showup, the judge concluded the victim's identification of
defendant as the man who robbed him and his brothers was
4 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). 5 "System variables" are factors relating to the identification that are within the State's control and include such things as lineup or showup construction, blind administration, pre- identification instructions, avoiding feedback and recording confidence. "Estimator variables" are factors over which the State has no control as they relate to the witness, the perpetrator, or the event itself and include such things as distance and lighting, duration, weapon focus, race bias and stress. Henderson, supra, 208 N.J. at 248-67.
8 A-4309-13T2 nevertheless sufficiently reliable to permit its admission. The
judge noted that the two men stood only three feet apart during
their encounter and exchanged words, giving the victim a good
look at the robber. He also noted the victim's identification
was "highly accurate as to the race, height, facial hair,[6] and
clothing," and was made within an hour of the robbery.
The judge acknowledged other estimator variables that could
affect the reliability of the identification, including the
presence of a gun, which he found "could have distracted the
victim's focus on the perpetrator's face." Having considered
both the suggestiveness of the showup and the estimator
variables, the judge concluded based on the witnesses' testimony
"that the victim made the identification from his own
independent recollection" and that it "was not tainted in any
significant way by the suggestive identification procedure."
The judge also denied defendant's motion to exclude his
statements to the police, but did so in an oral opinion. He
concluded custody was not in issue as "defendant was actually
detained [outside the garage] and, therefore, legally and
6 The victim testified the robber sported a goatee. He also noted the man had short hair. There was no mention of a hat or anything else that might have impeded the victim's view of the robber's face and hair. See Henderson, supra, 208 N.J. at 266 (noting the special master's finding that "[d]isguises (e.g., hats, sunglasses, masks) are confounding to witnesses and reduce the accuracy of identifications").
9 A-4309-13T2 technically in custody." The judge accordingly concluded that
the officers would have been obligated to have administered
Miranda warnings to defendant "if he was to be interrogated."
The judge determined, however, that defendant was not
interrogated.
I don't believe that the action of the police in advising him what was going on would have caused them to reasonably expect to elicit from him an incriminating response as to where the phone was. I just don't find it to be a functional equivalent of interrogation as per the Ward[7] case . . . .
[The officers] . . . did nothing to elicit the response from [defendant] indicating where the phone was. That's something he blurted out based upon all the circumstances of what's going on and, frankly, it's probably something common that happens in human nature, you just — you know, it is what it is.
So I don't find that his constitutional rights were violated by virtue of the fact he was not Mirandized, as in fact . . . the police comment did not constitute an interrogation or the functional equivalent of an interrogation. Nothing was done to elicit a response by the police.
Accordingly, the judge denied defendant's motion.
Standard of Review
Our standard of review on a motion to bar an out-of-court-
identification (or a statement made without benefit of Miranda
7 State v. Ward, 240 N.J. Super. 412 (App. Div. 1990).
10 A-4309-13T2 warnings) is no different from our review of a trial court's
findings in any non-jury case. See State v. Johnson, 42 N.J.
146, 161 (1964). "The aim of the review at the outset is . . .
to determine whether the findings made could reasonably have
been reached on sufficient credible evidence present in the
record." Id. at 162. As with our review of the fact finding on
other pre-trial motions in a criminal case, the "trial court's
findings at the hearing on the admissibility of identification
evidence are 'entitled to very considerable weight.'" State v.
Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61
N.J. 434, 451 (1972)); see also State v. Locurto, 157 N.J. 463,
470-71 (1999).
Our Supreme Court has long held that "[a]n appellate court
'should give deference to those findings of the trial judge
which are substantially influenced by his opportunity to hear
and see the witnesses . . . .'" State v. Elders, 192 N.J. 224,
244 (2007) (quoting Johnson, supra, 42 N.J. at 161). That
deference is grounded in the understanding that our "reading of
a cold record is a pale substitute for a trial judge's
assessment of the credibility of a witness he has observed
firsthand." State v. Nash, 212 N.J. 518, 540 (2013). Appellate
review of the trial court's application of the law to the facts,
however, is plenary. State v. Coles, 218 N.J. 322, 342 (2014);
11 A-4309-13T2 see also State v. Jones, ___ N.J. ___, ___ (2016) (slip op. at
19-20).
Identification Issue
We turn first to defendant's contention that the trial
court erred in admitting the victim's out-of-court
identification. There is no dispute that under the Henderson
framework, which applied in this case, the inherent
suggestibility of a showup entitled defendant to a Wade hearing.
See Henderson, supra, 208 N.J. at 261 ("showups, while sometimes
necessary, are inherently suggestive"). With "actual proof of
suggestiveness" supplied by the showup, augmented by the
victim's credible testimony that the officers told him before he
viewed the suspect that they had the person who had his phone,
the court was required to consider both system variables and
estimator variables in evaluating the overall reliability of the
identification in determining its admissibility. See id. at
291.
The court identified several system variables that could
have affected the reliability of this identification. Beyond
the inherent suggestibility of the showup itself, the court
noted the victim heard the police radio transmissions that
officers had recovered his cell phone and found a gun minutes
before he was asked to identify the suspect. The victim
12 A-4309-13T2 testified that the detective told him the police "have the
person who has the phone" and that the suspect was walked toward
the car in handcuffs.
Exploring the estimator variables at the hearing as
Henderson requires, see id. at 293, the court noted that the
presence of a gun certainly "could have distracted the victim's
focus on the perpetrator's face."8 It found other estimator
variables, however, that could positively affect the reliability
of the identification, including that the victim stood within
three feet of the perpetrator and that the two exchanged words,
which allowed the victim to get a good look at his assailant.
The court further noted that the identification was made shortly
after the encounter, within an hour according to both the police
and the victim. The court emphasized that the victim was able
to provide police with a "highly accurate" description of the
8 The judge included among estimator variables two we believe are more appropriately characterized as system variables, the victim's overhearing of the radio transmissions and the suspect's presence in handcuffs. He also included in his discussion of the variables the victim's lack of motivation to lie. Motivation to lie goes to a witness's credibility, not to the reliability of an identification. See Raheem v. Kelly, 257 F.3d 122, 140 (2d Cir. 2001), cert. denied, 534 U.S. 1118, 122 S. Ct. 930, 151 L. Ed. 2d 892 (2002) ("Reliability, in the identification context, means essentially that the witness's recollection was 'undistorted.'"). The question for the court was whether the victim's identification of defendant was distorted by system or estimator variables leading to a substantial likelihood of misidentification.
13 A-4309-13T2 perpetrator's race, height, clothing and facial hair, as well as
the color and type of bicycle he was riding.9
Weighing the system and estimator variables present in this
record led the court to find that although "the identification
procedure was impermissibly suggestive," it could not conclude
that defendant had proved a "very substantial likelihood of an
irreparable misidentification" as was his burden. Id. at 289
("[I]f after weighing the evidence presented a court finds from
the totality of the circumstances that defendant has
demonstrated a very substantial likelihood of irreparable
9 There is evidence of other estimator variables in the record not mentioned in the court's findings that could further support admission of the identification in this case. The victim and defendant were both young men of approximately the same age. See Henderson, supra, 208 N.J. at 265 (discussing effect of age on reliability of an identification). They may also have been of the same race, as no argument was raised as to cross-racial recognition affecting the reliability of the identification. Id. at 267. We do not rely upon either "fact," we merely note them as estimator variables that should be identified and analyzed under the Henderson framework. Similarly, the court made no mention of Detective Frascino's failure to have warned the victim that the suspect might not have been the perpetrator, and that the victim should not feel compelled to make an identification, as is required by the Attorney General Eyewitness ID Guidelines. See supra, note 3. Although the Court in Henderson rejected the notion that violation of the Attorney General Guidelines would require per se exclusion of the resulting eyewitness identification, pre- identification instructions are a critical system variable that must be weighed on a Wade motion under the revised Henderson framework. See Henderson, supra, 208 N.J. at 250, 261, 290, 292-93.
14 A-4309-13T2 misidentification, the court should suppress the identification
evidence."). Defendant contends that we should reverse because
the court "improperly balanced the system and estimator
variables adduced during the Wade hearing." We reject that
argument.
Although the Henderson Court noted the enhanced framework
it established for admission of identification testimony "may
provide a greater role [for appellate review] in certain cases,"
id. at 295, we do not conclude the Court intended by that
observation to endorse a standard that would allow us to set
aside findings that have adequate support in the record, as
these do.10 To be sure, the Court in Henderson continued to
endorse its conclusion in State v. Herrera, 187 N.J. 493, 504
(2006), that showups are inherently suggestive. Henderson,
supra, 208 N.J. at 261; see also Jones, supra, ___ N.J. at ___
(slip op. at 22). It did not, however, limit their
10 We do not draw any different conclusion from the Court's de novo review of "whether constitutional due process requirements should have compelled the exclusion of an out-of-court identification from defendant's criminal trial" in Jones. Jones, supra, ___ N.J. at ___ (slip op. at 19). The Court in Jones was addressing errors in the legal analysis of the identification testimony adduced at trial. Specifically, the error of considering extrinsic evidence of guilt when analyzing the independent reliability of an inherently suggestive identification procedure. Id. at 9-10. Appellate review of the application of the law to the facts is always plenary. See Coles, supra, 218 N.J. at 342.
15 A-4309-13T2 admissibility, instead noting the special master's finding that
"'the risk of misidentification is not heightened if a showup is
conducted immediately after the witnessed event, ideally within
two hours' because 'the benefits of a fresh memory seem to
balance the risks of undue suggestion.'" Henderson, supra, 208
N.J. at 259 (quoting Report of the Special Master at 29,
Henderson, supra, 208 N.J. 208 (No. A-8-08)); see also Jones,
supra, ___ N.J. at ___ (slip op. at 22) (noting "[o]ur law has
permitted 'on or near-the-scene identifications because they are
likely to be accurate, taking place . . . before memory has
faded and because they facilitate and enhance fast and effective
police action and they tend to avoid or minimize inconvenience
and embarrassment to the innocent.'") (quoting Herrera, supra,
187 N.J. at 504).
We recognize, of course, that the inherent suggestibility
of a showup was compounded in this instance by several system
variables, most notably the witness hearing the radio
transmissions and the detective's failure to try to neutralize
the harm by declining to confirm the information and warning the
witness that the suspect may not be the perpetrator and that he
should not feel compelled to make an identification, and instead
telling him they had "the person who has the phone." We also
acknowledge that neither counsel nor the court was accustomed to
16 A-4309-13T2 working within the Henderson framework. The failure of the
court to discuss the detective's neglect to warn the witness
that the suspect might not be the perpetrator and he should not
feel compelled to make an identification is particularly
concerning in light of the other system failures in this
showup.11
The central point of Henderson is the recognition that
suggestive identification procedures can skew a witness's report
of his opportunity to view the crime, his degree of attention,
and, most importantly perhaps, his level of certainty at the
time of the identification. 208 N.J. at 286. Thus it is
critical that the court identify particular police procedures —
the system variables – and consider whether and to what extent
any may have distorted the witness's perception at the time of
the identification and the witness's certainty as to the
identification thereafter. The court is to weigh those system
variables along with any applicable estimator variables, some of
which are also capable of altering memory and thus tainting an
identification, in determining, based on the totality of the
11 We acknowledge, however, that the court's finding that the showup was impermissibly suggestive because the police communicated to the victim "that the police believed they had the robber" would certainly encompass the failure to provide the instruction required by the Attorney General Guidelines and Henderson.
17 A-4309-13T2 circumstances, whether defendant has carried his burden to
demonstrate "a very substantial likelihood of irreparable
misidentification." Id. at 289.
Here, the trial court, after listening to the testimony and
weighing the factors, concluded defendant had not demonstrated
that very substantial likelihood and that it would be for the
jury to decide whether the victim credibly identified defendant,
guided by enhanced instructions on eyewitness testimony from the
trial judge.12 See Model Jury Charge (Criminal), "Identification:
Out-of-Court Identification Only" (2012); State v. Lazo, 209
N.J. 9, 24 (2012). The court based its ruling on the victim's
ability to see the robber and provide a "highly accurate"
description of him less than an hour before he was called on to
make his identification. Although finding the police
impermissibly signaled the victim in a variety of ways that "the
police believed they had the robber," the court concluded the
12 Underscoring the importance of jurors understanding the complicated issues underlying the reliability of eyewitness identification evidence the Court identified in Henderson, it directed the Criminal Practice Committee and the Committee on Model Criminal Jury Charges to develop an enhanced jury charge on eyewitness identification for the Court's review prior to its implementation. Henderson, supra, 208 N.J. at 296-99. The resulting three new charges became effective September 2012. See Model Jury Charge (Criminal), "Identification: In Court and Out-of-Court Identifications" (2012); Model Jury Charge (Criminal), "Identification: In Court Identification Only" (2012); Model Jury Charge (Criminal), "Identification: Out-of- Court Identification Only" (2012).
18 A-4309-13T2 circumstances made misidentification unlikely. Mindful that we
are reviewing a cold record and that the trial court's factual
findings are "entitled to very considerable weight," Adams,
supra, 194 N.J. at 203, we find no basis to disturb those
findings and affirm the trial court's denial of the motion to
suppress the identification made by the victim.13 See Elders,
supra, 192 N.J. at 244.
Delgado Claim
Defendant also contends, in an argument not raised to the
trial court, that the out-of-court identification should not
have been admitted under State v. Delgado, 188 N.J. 48, 63
(2006), which conditions admissibility on adequate documentation
of the identification procedure. See also R. 3:11.
Specifically, defendant argues that "[t]he absence of even a
single report regarding 'the dialogue between the witness and
the interlocutor,' . . . renders [the victim's] out-of-court
identification inherently suspect and per se inadmissible."
13 Nor do we conclude that police missteps in cuing the witness that they believed defendant was the perpetrator rose to the level of a due process violation. See Jones, supra, ___ N.J. at ___ (slip op. at 36-37) (holding that making suspect wear a distinctive plaid jacket he was not wearing when apprehended "rendered the showup and the identification evidence that it generated a violation of defendant's due process rights, requiring a new trial").
19 A-4309-13T2 A review of the transcripts makes clear that at least three
reports were created by the police regarding the investigation
of this crime. Although extensive use of these reports was made
at the hearing and they were identified in the record, they were
not admitted in evidence and are not included in the record on
appeal. Accordingly, we are unable to assess defendant's
argument that the police failed to adequately document the
identification procedure in violation of Delgado.
Because this issue was not raised to the trial court,14 it
is defendant's burden to demonstrate that the police failed to
create an adequate record of the showup in those reports and
that such failure was clearly capable of producing an unjust
result. See R. 2:10-2; Delgado, supra, 188 N.J. at 64; State v.
Macon, 57 N.J. 325, 337 (1971). As defendant has not included
14 We also question whether this issue was properly reserved for review. Although plaintiff conditioned his plea on his ability to appeal his "Wade [and] Miranda" motions, he did not make the Delgado claim part of his Wade motion. It is difficult to conceptualize a defendant conditioning his guilty plea on his ability to appeal a claim he did not make, let alone grant appellate relief to a defendant in such circumstances. Cf. State v. Szemple, 332 N.J. Super. 322, 328-29 (App. Div.) (noting we do not ordinarily review a defendant's claims following a guilty plea beyond those contentions specifically preserved for appeal), certif. denied, 165 N.J. 604 (2000). Cf. R. 3:5-7(d) (preserving, by contrast, an automatic right to appellate review of orders denying motions to suppress physical evidence). Our disposition of the claim makes further consideration of this issue, which was not addressed by the parties, unnecessary.
20 A-4309-13T2 the reports referenced in the record, thereby precluding us from
assessing the merits of the claim, we reject his argument.
Miranda Issue
We turn now to defendant's argument that his statements to
the police should have been suppressed. It is beyond well
settled that "every natural person has a right to refuse to
disclose . . . to a police officer . . . any matter that will
incriminate him or expose him to a penalty . . . ." N.J.S.A.
2A:84A-19; N.J.R.E. 503. "New Jersey's privilege against self-
incrimination is so venerated and deeply rooted in this state's
common law that it has been deemed unnecessary to include the
privilege in our State Constitution." State v. O'Neill, 193
N.J. 148, 176 (2007). The Court has treated "our state
privilege as though it were of constitutional magnitude, finding
that it offers broader protection than its Fifth Amendment
federal counterpart." Id. at 176-77. Miranda warnings
safeguard our state law privilege as they do the Fifth
Amendment. Id. at 185.
The United States Supreme Court has made clear that Miranda
warnings are required "whenever a person in custody is subjected
to either express questioning or its functional equivalent."
Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682,
1689, 64 L. Ed. 2d 297, 308 (1980). Our Supreme Court
21 A-4309-13T2 acknowledged the "functional equivalent" of interrogation rule
of Innis in State v. Bey, 112 N.J. 45, 68 n.13 (1988) (holding
"[t]he initiation of a general discussion about the victim
clearly satisfies" the Innis standard); see also State v.
Hubbard, 222 N.J. 249, 267 (2015). As the State has conceded
that defendant was in custody when he made the incriminating
statement about the cell phone, the only issue presented to the
trial court, and the one we review, is whether Officer Andrek's
statements to defendant informing him, first, that the victim
was coming over to identify him, and then, that other officers
had found a gun nearby was the "functional equivalent" of an
interrogation.
The Supreme Court in Innis, explained that "the term
'interrogation' under Miranda refers not only to express
questioning, but also to any words or actions on the part of the
police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response [whether inculpatory or
exculpatory] from the suspect." 446 U.S. at 301, 100 S. Ct. at
1689-90, 64 L. Ed. 2d at 308 (footnotes omitted). The Court
explained its reasoning thus:
The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that
22 A-4309-13T2 the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.
[Id. at 301-02, 100 S. Ct. at 1690, 64 L. Ed. 2d at 308 (footnotes omitted).]
We applied the Innis rule in State v. Ward, 240 N.J. Super.
412 (App. Div. 1990). Ward involved a robbery of a mini-mart in
Newark by three males, one of them a juvenile. Two of the
robbers, Kevin Miller and the juvenile, S.S., fled in a car and
were quickly apprehended by police. Miller implicated Ward, who
was then identified by one of the victims in a photo array. The
following week, a detective investigating the robbery learned
that Ward was in custody on an unrelated charge. The detective
went to Ward's cell with photographs of Miller and S.S. The
detective showed Ward the pictures and, without giving him
Miranda warnings, told him he was going to be charged with the
robbery of the mini-mart, and that Miller and S.S. had already
been arrested. Ward looked at the pictures and told the
23 A-4309-13T2 detective, "I don't know Kevin Miller and [S.S.]." Id. at 416.
The detective had not mentioned either name to Ward. The
detective immediately read Ward his Miranda rights. Ibid. Ward
refused to sign the waiver card and insisted he knew nothing
about any robbery. Ibid.
We determined that the detective's confrontation with Ward
had been the functional equivalent of an interrogation, and that
Ward's response "was not simply a spontaneous outburst elicited
casually or innocently without the State's purposeful enticement
or encouragement." Id. at 417. "[M]indful that 'the modern
practice of in-custody interrogation is psychologically rather
than physically oriented,'" ibid. (quoting Miranda, supra, 384
U.S. at 448, 86 S. Ct. at 1614, 16 L. Ed. 2d at 708), Judge King
wrote that
the Detective's undertaking . . . was designed to elicit a response, both helpful to the investigation and incriminatory of his suspect. . . . Defendant should have been given the Miranda warnings before, not after, the Detective started the process so clearly designed to entangle the defendant in the criminal event.
[Id. at 418.]
We concluded that a scrupulous respect of Ward's rights would
have required Miranda warnings before the detective confronted
Ward in his cell, told him of the robbery and of the formal
24 A-4309-13T2 charge against him, and then showed him the pictures. Id. at
419. We come to a similar conclusion here.
Officer Andrek testified he provided defendant information
at three different times while defendant was in custody outside
the garage before providing him Miranda warnings. Upon
escorting defendant out of the garage, Andrek advised defendant
he was being detained because he fit the description of the
perpetrator of an armed robbery that had just taken place near
Journal Square. Several minutes later, Andrek advised defendant
that one of the victims was being brought over to see if the
victim could identify him. Some minutes after that, Andrek
advised defendant that officers searching the area had located a
gun a few doors down from where they stood.
The trial judge concluded on the basis of that testimony
that Officer Andrek "did nothing to elicit the response from
[defendant] indicating where the phone was." Instead the judge
found it was "something [defendant] blurted out based upon all
the circumstances of what's going on and, frankly, it's probably
something common that happens in human nature, you just — you
know, it is what it is."
We agree that it is not surprising that defendant "blurted
out" an expletive and acknowledged he had the cell phone "based
upon all the circumstances" transpiring. Defendant knew police
25 A-4309-13T2 suspected him of the armed robbery. Upon being provided with
the additional information that a detective was bringing over
one of the victims to identify him, and that other officers had
found the gun nearby, defendant, as Officer Andrek testified,
knew "he was caught." The common human experience we understand
the judge was referring to is one of the tightening of a noose.
The officer offered no explanation for supplying defendant with
these updates on the investigation, which clearly were not
inadvertent, see State v. Bohuk, 269 N.J. Super. 581, 594-95
(App. Div.), certif. denied, 136 N.J. 29, cert. denied, 513 U.S.
865, 115 S. Ct. 183, 130 L. Ed. 2d 117 (1994), and appear
designed to elicit a response. See Ward, supra, 240 N.J. Super.
at 418. It is precisely because defendant's response is so
readily understandable that we find the officer should surely
have known that his meting out of the information in the way he
did was reasonably likely to evoke an incriminating response,
and thus that it amounted to an interrogation.
To be clear, like the trial judge, we see no objection to
the officers' initial statements to defendant about why he was
being detained. If defendant had at that point blurted out that
he had the cell phone, we would not hold the officers
accountable for such an unforeseeable result. See Innis, supra,
446 U.S. at 301-02, 100 S. Ct. at 1689-90, 64 L. Ed. 2d at 308;
26 A-4309-13T2 see also State v. Melendez, 423 N.J. Super. 1, 30 (App. Div.
2011), certif. denied, 210 N.J. 28 (2012); State v. Lozada, 257
N.J. Super. 260, 268-69 (App. Div.), certif. denied, 130 N.J.
595 (1992); State v. Mallozzi, 246 N.J. Super. 509, 516 (App.
Div. 1991).
Here, however, Officer Andrek continued well beyond his
initial communication informing defendant of the reasons for his
detention. The officer's actions in continuing to engage
defendant by providing him updates on the progress of the
investigation were unnecessary, and the officer should have
known they would be likely to elicit an incriminating response,
either exculpatory or inculpatory. See Innis, supra, 446 U.S.
at 301 n.5, 100 S. Ct. at 1689 n.5, 64 L. Ed. 2d at 308 n.5.
They should not have been undertaken prior to providing
defendant with Miranda warnings. Accordingly, we reverse the
decision to admit defendant's statements to the police and
remand for further proceedings consistent with this opinion.
Defendant's Sentence
Because our decision does not mandate the reversal of
defendant's conviction, but only allows him the opportunity to
withdraw his guilty plea, R. 3:9-3(f); State v. Cummings, 184
N.J. 84, 100 (2005), we address, and reject, his arguments
regarding his sentence.
27 A-4309-13T2 Our review of a trial court's sentencing determination is
both limited and deferential. State v. Fuentes, 217 N.J. 57, 70
(2014). That is particularly true where defendant has bargained
for the sentence imposed pursuant to a plea agreement. Id. at
70-71. Having reviewed the sentencing transcript, we are
convinced that defendant's arguments that the judge double-
counted the use of a gun in the commission of the armed robbery
and erred in finding aggravating factors three, six, and nine
are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We are satisfied the judge's
findings and balancing of the aggravating and mitigating factors
are supported by adequate evidence in the record, and the
sentence is neither inconsistent with sentencing provisions of
the Code of Criminal Justice nor shocking to the judicial
conscience. See Fuentes, supra, 217 N.J. at 70; State v.
Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J.
165, 180-81 (2009).
Conclusion
The decision to admit the identification evidence is
affirmed. The decision to admit defendant's statements to the
police is reversed and the matter is remanded to the trial
court, where defendant may elect either to withdraw his plea and
proceed to trial with his statements to the police excluded, or
28 A-4309-13T2 to accept his earlier conviction and sentence. We do not retain
jurisdiction.
Affirmed in part; reversed in part and remanded.
29 A-4309-13T2