STATE v. ANTHONY SIMS, JR.

• Court: New Jersey Superior Court Appellate Division
• Decided: February 4, 2021
• Docket: A-2641-17T1
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2641-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. February 4, 2021

APPELLATE DIVISION ANTHONY SIMS, JR.,

Defendant-Appellant. _______________________

Submitted October 19, 2020 – Decided January 4, 2021 Recalled February 4, 2021.1 Resubmitted February 4, 2021 – Decided February 4, 2021

Before Judges Rothstadt, Mayer and Susswein (Judge Susswein concurring in part and dissenting in part).

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-08- 1335.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the briefs).

1 Today, we simultaneously granted the State's motion to correct the record and to reconsider. In the motions, both parties agreed there was an error in the transcription of the video statement defendant gave to the police as to what the officers advised defendant prior to his interrogation about the charges against him when he was arrested. This opinion and the opinion concurring in part and dissenting in part are based upon the corrected record. Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Maura K. Tully, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

This appeal requires us to determine as a matter of first impression

whether the Supreme Court's holdings in State v. A.G.D., 178 N.J. 56 (2003), and

State v. Vincenty, 237 N.J. 122 (2019), requiring that police inform a defendant

subject to custodial interrogation of specific charges filed against him before he

can waive his Miranda2 rights, also apply to an interrogee who was arrested and

questioned prior to any charges being filed, where the arrest was based upon

information developed through an earlier police investigation. As explained in

our opinion today, we hold that the same requirement applies because without

being correctly informed of the crime for which he was arrested, a defendant

cannot knowingly and intelligently waive his right against self-incrimination.

Defendant Anthony Sims, Jr. appeals from his conviction by jury of

having committed attempted murder and violating weapons offenses, and from

his aggregate fifty-year sentence. On appeal, he argues the following points:

2 Miranda v. Arizona, 384 U.S. 436 (1966). A-2641-17T2 2 POINT I

BECAUSE AN ARRESTEE CANNOT KNOWINGLY WAIVE HIS MIRANDA RIGHTS IF THE AUTHORITIES DO NOT EXPLAIN WHY HE IS BEING ARRESTED; IT WAS ERRONEOUS FOR THE TRIAL COURT TO ADMIT [DEFENDANT'S] STATEMENT AT TRIAL.

POINT II

ALL EVIDENCE OBTAINED FROM THE UNCONSTITUTIONAL QUESTIONING OF [DEFENDANT] MUST BE EXCLUDED AS THE FRUIT OF THE POISONOUS TREE.

POINT III

[DEFENDANT'S] SIXTH AMENDMENT RIGHT TO CONFRONT HIS ACCUSER WAS VIOLATED BY THE TRIAL COURT'S RULING THAT PERMITTED THE STATE TO ADMIT THE VICTIM'S TESTIMONY AT THE WADE HEARING AS SUBSTANTIVE EVIDENCE OF [DEFENDANT'S] GUILT.

POINT IV

BECAUSE THE ADMISSION OF A PRIOR INCONSISTENT STATEMENT DUE TO FEIGNED MEMORY IS ONLY ADMISSIBLE IF THE WITNESS FEIGNS A LOSS OF MEMORY IN FRONT OF THE JURY; IT WAS ERRONEOUS FOR THE TRIAL COURT TO ADMIT THE VICTIM'S WADE HEARING TESTIMONY AT TRIAL, WHICH INCLUDED HIS PRIOR STATEMENT TO THE POLICE.

A-2641-17T2 3 POINT V

THE PROSECUTOR COMMITTED MISCONDUCT AT THE END OF HER SUMMATION BY STATING THAT "YOU CAN HOLD [DEFENDANT] ACCOUNTABLE FOR TAKING THAT COMMUNITY, THAT NEIGHBORHOOD, AND TURNING IT INTO HIS OWN PERSONAL CRIME SCENE (BY RENDERING A GUILTY VERDICT)." (NOT RAISED BELOW).

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Having considered defendant's contentions in light of the record and the

applicable principles of law, we reverse the denial of his motion to suppress his

statement because defendant was not properly advised of the status of the

charges against him prior to his interrogation. We also conclude that the trial

court erred by admitting the victim's statement to police through hearsay

testimony as defendant was deprived of a meaningful opportunity to challenge

the victim's statement at a pretrial hearing or before the jury.

I.

The facts pertinent to this appeal as derived from the trial record are

summarized as follows. On April 9, 2014, a man was struck by twelve bullets

while sitting in his car in his grandmother's driveway at her home in Red Bank.

A-2641-17T2 4 The victim's grandmother heard the shots followed by her grandson calling for

her to help.

The grandmother ran outside and found the victim partially hanging out

of the passenger side of his vehicle and bleeding profusely. She asked him,

"Who did this to you?" He answered, "Sims." She asked, "Who is Sims?" He

answered, "BJ's brother." She knew BJ by his name, R.P., as he and her

grandson had been childhood friends and had spent many nights at her house .3

Red Bank Police Department (RBPD) Patrolman Benjamin Springer

responded to the scene and provided emergency medical assistance to the victim,

who was conscious but appeared to be going into shock. Lieutenant Robert

Clayton of the RBPD arrived soon after and asked the victim, who the officer

had known for fifteen years, to tell him who had shot him. The victim put his

face down toward the ground, said he did not know, and did not answer further

even though his grandmother encouraged him to respond. His grandmother then

told Clayton that the victim had said it was one of BJ's brothers.4

3 Defendant's brother R.P. ("BJ") was dead at the time of defendant's trial and the victim here was charged with his murder. The trial court prevented the jury from learning about that fact at defendant's trial. 4 Clayton knew defendant had an older brother named R.P. and a younger brother named C.S. Clayton had not seen C.S. in about three years, but he believed C.S. and defendant "look[ed] alike." A-2641-17T2 5 Emergency medical personnel soon arrived and transported the victim to

the hospital where he was treated for his life-threatening wounds. After

undergoing several surgeries and spending a number of days in the intensive

care unit, the victim was released from the hospital on April 30, 2014.

Prior to the victim leaving the hospital, RBPD Detective Robert

Campanella and Monmouth County Prosecutor's Detective Brian Weisbrot

interviewed him for almost three hours on April 13. According to Weisbrot, the

victim was "scared" but agreed to give a statement. He required pain medication

throughout the interview. Nevertheless, during the interview the victim was

"cooperative," "alert, oriented, and in control" and eventually identified a photo

of defendant and signed the back, confirming it was defendant who had shot

him. The victim also signed a copy of his statement that had been typed up

while he spoke to the detectives.

In his April 13 statement, the victim recalled sitting in his blue Chevy

Camaro in his grandmother's driveway talking on the phone to his friend E.R.

when he noticed a man to his left crouched down holding a "black semi-

automatic" and pointing it at him. The gunman fired "three or four" bullets

through the driver's window. The victim remembered telling E.R. as it was

happening to call the police.

A-2641-17T2 6 The victim also said "[t]he minute I looked at [the gunman] I knew what

it was and I knew who it was, [defendant,] Anthony Sims, Jr." The victim said

he had "always known [defendant] through [defendant's] brother BJ ." He

described defendant as a "[b]lack guy" with a "medium" build who stood "about

5-8 or 5-9." "He was wearing a dark sweatshirt with his hoodie up. The hood

was pulled tight but [the victim] could immediately recognize him." When

asked if he knew why defendant had shot him, the victim answered: "Yeah, me

and BJ had a falling out, and me and BJ were supposed to fight. BJ and

[defendant] are brothers." The victim then identified the photo of defendant. He

also said that defendant had a girlfriend named A.M.

The next day, Weisbrot and Campanella arrested defendant. According to

Campanella, he and Weisbrot "advised [defendant that] he was being placed under

arrest." The officers "secured him in handcuffs, patted him down, and told him [he]

would be transport[ed]" to an Asbury Park satellite office. They did not advise

defendant why they were arresting him or about any charges filed against him.

Defendant asked why he was under arrest, and Campanella told him they

"would get into the details" when they got to the Asbury Park office. According to

the detective, "at this point in time," "[n]o specific charges" had been filed against

defendant, but he had been placed under arrest. No further discussions occurred

A-2641-17T2 7 during the drive to the office. When they arrived at the satellite office, defendant

was placed in an interview room with a video recording device. Using a Miranda

form, the officers advised defendant of his rights, and he initialed each page and

signed the form agreeing to waive them. According to Campanella, when defendant

was arrested and asked to waive his rights, the officers did not tell him that he was

arrested for attempted murder.

As defendant was going through the form, Weisbrot told defendant he was

"under arrest. I'm sure you have a ton of questions. I'll be happy to get into all that,

okay, in just a few minutes. Let's just finish this form. Okay?" After the form was

completed, there were no additional conversations during the interrogation about the

potential charges against him. Defendant proceeded to answer the detectives'

questions.

In his statement, defendant told the officers that he lived in Long Branch

with his mother and that he had a five-year-old daughter with A.M., who lived

in Neptune. He did not drive, so his mother and A.M. gave him rides. A.M.

drove a blue Ford Explorer. He also confirmed that he had two brothers, R.P.

who was known as BJ, and C.S.

Defendant denied having any "type of issue" with anyone from Red Bank.

He denied knowing anything about "an incident" in Red Bank, but then said that

A-2641-17T2 8 he had read a newspaper article regarding the recent shooting of the victim.

Defendant denied knowing the victim and anyone in his family, but then he

admitted that he knew him by his first name but had not known his last name.

He described the victim as a "tall guy" with a complexion similar to his own.

Without identifying the victim's brother, Weisbrot asked: "What about [the

victim's] brother?" and defendant answered: "I don't really see him. He's not

really around." Defendant denied having any kind of relationship with the

victim or his brother but said he knew them "from being in the projects ."

When asked if defendant's brother C.S. was "involved with them,"

defendant answered that his brother "never really came outside too much to be

involved in the activities that I was involved in." Defendant denied knowing

anything about an issue that anyone in his family may have had with the victim

and specifically denied knowing that BJ and the victim had a falling out. He

said BJ would have shared that type of information with him.

After some time, Weisbrot and Campanella told defendant that they knew

he had been in Red Bank at the time of the shooting because he was recorded on

camera. Defendant continued to deny that he was there or that he knew anything

about the shooting.

A-2641-17T2 9 Eventually, defendant asked to make a phone call using his cellular phone,

which the officers allowed him to do. After the call, the police seized

defendant's phone.

Thereafter, the police conducted a further investigation of the shooting.

The officers reviewed surveillance video from the area that depicted the entire

event. They also interviewed several witnesses, who placed defendant at the

scene of the shooting or were able to describe the person they saw at the scene

at or about the time of the shooting. Police also confirmed that A.M. owned a

2005 dark blue Ford Explorer with no front license plate, which was similar to

the vehicle the videos depicted the shooter entering after he fled the scene. They

attempted to speak with her numerous times, but she was "completely

uncooperative." Also, using defendant's cell phone and phone records, they

were able to confirm that he was in Red Bank at or about the time of the

shooting.

A grand jury later returned an indictment charging defendant with the

attempted murder of the victim with a firearm, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-

3, N.J.S.A. 2C:43-6(c) (count one); the unlawful possession of a weapon by a

person having been previously convicted of attempted manslaughter, N.J.S.A.

2C:39-5(b) and N.J.S.A. 2C:39-5(f) (count two); the possession of a weapon for

A-2641-17T2 10 an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and committing the

offense of certain persons not to have a weapon, N.J.S.A. 2C:39-7(b)(1) (count

four).

Before trial, defendant filed several motions, including one under Miranda

to suppress his custodial statement to police and another under

Wade/Henderson5 to bar admission of the victim's out-of-court identification of

defendant that he made while hospitalized. After conducting a hearing, at which

the victim testified that he could not recall making a statement or identifying

defendant to police, on June 23, 2016, the court denied defendant's motion to

suppress the victim's out-of-court identification.

As to defendant's statement to police, defense counsel argued that suppression

of defendant's statement was warranted because: (1) the officers failed to determine

whether defendant had an attorney, even though they knew that he was on parole;

and (2) over a two-and-one-half-hour period of questioning, they used deceptive

tactics regarding the facts and the basis for his arrest. Counsel did not specifically

argue, as defendant does on appeal, that suppression was warranted because the

5 United States v. Wade, 388 U.S. 218 (1976); State v. Henderson, 208 N.J. 208 (2011). A-2641-17T2 11 officers did not notify defendant of the potential charges against him that served as

the bases for his arrest.

On January 30, 2017, after conducting a hearing, the trial court denied the

motion. It found that defendant had knowingly and intelligently waived his

Miranda rights and defendant had provided no evidence that the officers' "conduct

was overbearing," that their questioning was "threatening," or that defendant had

asked them to stop questioning him and they refused.

On June 6, 2017, just before trial began, the State notified the court that

the victim would likely invoke the Fifth Amendment privilege against self-

incrimination and refuse to testify. At that time, the victim was incarcerated and

awaiting trial for the murder of defendant's brother, R.P. The court ruled that if

the victim refused to testify, it would admit as evidence the victim's hearing

testimony under Rule 804(b)(1)(A) (prior testimony of an unavailable witness).

During the trial, outside the presence of the jury, the victim asserted his

Fifth Amendment rights and refused to testify. The trial court declared the

victim to be unavailable and allowed Weisbrot to testify about the victim's

statement to police while he was hospitalized. The prosecutor also played the

video recording of defendant's statement to the detectives for the jury.

Defendant did not testify. During its deliberations, the jury requested a read

A-2641-17T2 12 back of Weisbrot's testimony about the statement the victim gave while

hospitalized.

Soon after the read back, on July 11, 2017, the jury returned a guilty

verdict on counts one through three. Later, on July 24, 2017, the court granted

the State's motion to dismiss count four of the indictment (the certain persons

offense). Defendant filed a motion for a new trial, claiming that the victim's

out-of-court identification testimony violated defendant's right to confront

witnesses and resulted in manifest injustice. On August 18, 2017, the court

denied the motion and imposed its sentence. This appeal followed.

II.

We turn first to defendant's contentions in Points I and II of his brief that

under the Supreme Court's holdings in State v. A.G.D. and State v. Vincenty, the

trial court erred in denying his motion to suppress his statement because the officers

failed to advise him that he was arrested for attempted murder. He contends this

omission rendered his waiver unknowing and unintelligent, and any evidence

obtained from his statement inadmissible as "fruit of the poisonous tree." It is

undisputed that these arguments were not raised before the trial court.

Because defendant did not raise this argument before the trial court, we review

his challenge under the plain error standard. R. 2:10-2; State v. Funderburg, 225

A-2641-17T2 13 N.J. 66, 79 (2016). Generally, we decline to consider questions not properly

presented to the trial court. State v. Witt, 223 N.J. 409, 419 (2015). "For sound

jurisprudential reasons, with few exceptions, 'our appellate courts will decline

to consider questions or issues not properly presented to the trial court when an

opportunity for such a presentation is available.'" Ibid. (quoting State v.

Robinson, 200 N.J. 1, 20 (2009)). Yet, "our appellate courts retain the inherent

authority to 'notice plain error not brought to the attention of the trial court[,]'

provided it is 'in the interests of justice' to do so." Robinson, 200 N.J. at 20

(alteration in original). We are satisfied it is in the interests of justice to address

defendant's arguments, and therefore we review the trial court's decision for

plain error.

"Plain error is [an] 'error possessing a clear capacity to bring about an

unjust result and which substantially prejudiced the defendant's fundamental

right to have the jury fairly evaluate the merits of his defense.'" State v.

Timmendequas, 161 N.J. 515, 576–77 (1999) (quoting State v. Irving, 114 N.J.

427, 444 (1989)). A reversal based on plain error requires us first to find an

error capable of producing an unjust result and second that the likelihood the

error caused an unjust result is "sufficient to raise a reasonable doubt as to

whether the error led the jury to a result it otherwise might not have reached."

A-2641-17T2 14 State v. Williams, 168 N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J.

325, 336 (1971)). We will, therefore, disregard the error "unless it is of such a

nature as to have been clearly capable of producing an unjust result." Funderburg,

225 N.J. at 79 (quoting R. 2:10-2) (citing State v. Robinson, 165 N.J. 32, 47 (2000)).

"The mere possibility of an unjust result is not enough" to warrant relief. Ibid. (citing

State v. Jordan, 147 N.J. 409, 422 (1997)).

When we review a trial court's decision on a motion to suppress a

statement, we generally defer to the factual findings of the motion court when

they are supported by credible evidence in the record. State v. Tillery, 238 N.J.

293, 314 (2019); Vincenty, 237 N.J. at 131–32. Deference to a trial court's

factual findings is appropriate "because the trial court has the 'opportunity to

hear and see the witnesses and to have the feel of the case, which a reviewing

court cannot enjoy.'" State v. S.S., 229 N.J. 360, 374 (2017) (quoting State v.

Elders, 192 N.J. 224, 244 (2007)). Deference is required even if the trial court's

factual findings "are based solely on its review of a video recording." Id. at 386.

However, we review de novo the trial court's legal conclusions that flow from

established facts. Tillery, 238 N.J. at 314.

"The right against self-incrimination is guaranteed by the Fifth

Amendment to the United States Constitution and this state's common law, now

A-2641-17T2 15 embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503."

S.S., 229 N.J. at 381–82 (quoting State v. Nyhammer, 197 N.J. 383, 399 (2009)).

In determining whether a defendant's incriminating statement is inadmissible,

"the prosecution [must] 'prove beyond a reasonable doubt that the suspect's

waiver [of rights] was knowing, intelligent, and voluntary.'" State v. A.M., 237

N.J. 384, 397 (2019) (quoting State v. Presha, 163 N.J. 304, 313 (2000)). See

also Miranda, 384 U.S. at 444 (explaining a suspect may waive rights so long as

waiver is made knowingly, intelligently, and voluntarily).

A court evaluates whether the State has satisfied its burden by considering

the "totality of the circumstances." A.M., 237 N.J. at 398 (citing Presha, 163

N.J. at 313). Under the totality of the circumstances analysis, a court considers

factors such as the defendant's "age, education and intelligence, advice as to

constitutional rights, length of detention, whether the questioning was repeated

and prolonged in nature and whether physical punishment or mental exhaustion

was involved." Ibid. (quoting State v. Miller, 76 N.J. 392, 402 (1978)).

In order to make a knowing and intelligent waiver of the right to remain silent,

a defendant must have been advised of the nature of the charges being brought

against him. Vincenty, 237 N.J. at 132–34; A.G.D., 178 N.J. at 68. In A.G.D.,

the Court held that a defendant's waiver of Miranda rights is invalid when the police

A-2641-17T2 16 fail to inform the defendant that a criminal complaint has been filed, or arrest warrant

has been issued, against him or her. 178 N.J. at 58–59. There, the Court explained:

a criminal complaint and arrest warrant signify that a veil of suspicion is about to be draped on the person, heightening his risk of criminal liability. Without advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden to the Court's satisfaction that the suspect has exercised an informed waiver of rights, regardless of other factors that might support his confession's admission.

[Id. at 68 (emphasis added).]

In Vincenty, the Court reiterated its adherence to A.G.D. and held that

interrogating officers must not only inform a suspect that an arrest warrant or

complaint has been issued or filed but must also notify the suspect of the

charges. 237 N.J. at 126. In its opinion, the Court explained that to ensure a

defendant makes a knowing and intelligent waiver of the right against self-

incrimination, A.G.D. requires

law enforcement officials to make a simple declaratory statement at the outset of an interrogation that informs a defendant of the essence of the charges filed against him. That information should not be woven into accusatory questions posed during the interview. The State may choose to notify defendants immediately before or after administering Miranda warnings, so long as defendants are aware of the charges pending against them before they are asked to waive the right to self- incrimination.

A-2641-17T2 17 [Id. at 134.]

The Court also noted that an interrogating officer's failure to properly advise

a defendant of the charges being pursued against him will not be considered harmless

error where "[s]ome of [his] statements could be fairly characterized as

inculpatory." Id. at 136.

However, in State v. Nyhammer, where the subject of an interrogation was

only a suspect who agreed to go to the police station to discuss an investigation into

a third party's conduct, and no charges had been filed against him prior to giving his

statement, 396 N.J. Super. 72, 79 (App. Div. 2007), rev'd 197 N.J. 383 (2009), there

was no need to advise the subject about the charges that he was believed to have

committed. Nyhammer, 197 N.J. at 388. As the Court found, police advised the

defendant of his Miranda rights an hour before questioning began, he "knew that he

was a suspect as soon as the police asked him the first question about his involvement

in the sexual abuse of the child-victim," and, "despite having been given his Miranda

warnings, he knowingly and voluntarily chose to speak." Ibid.

The Nyhammer Court also explained that "[o]nly in the most limited

circumstances have we applied a per se rule to decide whether a defendant

knowingly and voluntarily waived Miranda rights." 197 N.J. at 403. One of

those circumstances occurred in A.G.D. Id. at 404. The Court explained in

A-2641-17T2 18 A.G.D. that it held "a Miranda waiver per se invalid when the police who were

questioning the defendant withheld from him the fact that they had in hand a

criminal complaint and warrant for his arrest." Ibid. (citing A.G.D., 178 N.J. at

68).

Distinguishing between a mere suspect and a suspect that had been charged

on an arrest warrant, the Court also explained, "[t]he issuance of a criminal

complaint and arrest warrant by a judge is an objectively verifiable and distinctive

step, a bright line, when the forces of the state stand arrayed against the individual."

Ibid. As the Court highlighted, "[t]he defendant in A.G.D. was purposely kept in the

dark by his interlocutors of this indispensable information." Id. at 404–05. Thus,

A.G.D. created a bright-line rule requiring law enforcement to advise a person prior

to waiver that he or she has been charged with a crime by complaint or warrant,

unless the suspect otherwise knows that fact. Ibid.

As to an individual who is merely a suspect, the Court stated the following in

distinguishing Nyhammer from A.G.D.:

Unlike the issuance of a criminal complaint or arrest warrant, suspect status is not an objectively verifiable and discrete fact, but rather an elusive concept that will vary depending on subjective considerations of different police officers. A suspect to one police officer may be a person of interest to another officer. Moreover, we emphasized that "[o]ur holding [in A.G.D.] is not to be construed as altering existing case

A-2641-17T2 19 law . . . other than imposing the basic requirement to inform an interrogatee that a criminal complaint or arrest warrant has been filed or issued."

[Id. at 405 (alterations in original) (emphasis added) (quoting A.G.D., 178 N.J. at 68–69).]

Our Supreme Court has said that A.G.D., along with State v. Reed, 133 N.J.

237, 269 (1993) (requiring police to notify a person that an attorney is available for

advice), confirmed that "police officers conducting a custodial interrogation cannot

withhold essential information necessary for the exercise of the privilege." State v.

O'Neill, 193 N.J. 148, 179 (2007). With respect to A.G.D., the O'Neill Court

reiterated that the police must disclose to the suspect prior to any questioning that a

complaint or warrant has been filed or issued. Id. at 179–80. Failure to do so denies

the person of "information indispensable to a knowing and intelligent waiver."

Id. at 179 (quoting A.G.D., 178 N.J. at 68).

In State v. Henderson, we rejected the defendant's argument that, under

A.G.D., his waiver was not made knowingly "because he was not specifically

informed that a warrant for his arrest for the murder of [the victim] had been

issued." 397 N.J. Super. 398, 403 (App. Div. 2008), aff'd as modified 208 N.J.

208 (2011). We rejected this argument because "the police advised defendant

that they had a warrant for his arrest and told him that he was being taken to the

homicide unit." Id. at 404. In that case, "although the police did not tell

A-2641-17T2 20 defendant that he had been arrested for . . . murder . . . defendant responded that

he knew 'what it's all about.'" Ibid. Under those circumstances, we explained

that "[w]e decline the invitation to hold that the principles announced in A.G.D.

extend to also informing an accused of the basis for the arrest warrant,

particularly, as here, when defendant well-understood why he was arrested."

Ibid.

The Henderson court found the statement was admissible under A.G.D.

because the police had notified the defendant that a warrant for his arrest had

been issued. Ibid. We rejected Henderson's argument that the police must also

notify the suspect of the specific crime charged, but we did not conclude that

police have no duty to inform the suspect that the complaint or warrant has been

filed or issued charging the defendant with a crime. Ibid. Moreover, following

Henderson, the Vincenty Court clarified that A.G.D. required police to notify

the suspect of the basis for the warrant or complaint at the outset of an

interrogation. Vincenty, 237 N.J. at 134–35.

Here, it is undisputed that defendant was not merely a suspect at the time of

his questioning, as he had been placed under arrest. Moreover, in response to

defendant's inquiry as to whether he was arrested, the interrogating officers not

telling defendant the charges for which he was arrested did not satisfy the

A-2641-17T2 21 requirements of A.G.D. and Vincenty because, under those cases, a defendant must

be advised of the "actual" and "specific" charges he is facing. Id. at 135.

Defendant's arrest, more so than a filed complaint, "signif[ied] that a veil of

suspicion [was] draped on [defendant], heightening his risk of criminal liability"

for a crime much more serious than an assault. A.G.D., 178 N.J. at 68. Because

defendant did not know that he was under arrest for attempted murder when he

waived his rights, the waiver was not made knowingly and intelligently. Vincenty,

237 N.J. at 132–34; A.G.D., 178 N.J. at 68. For that reason, we reject the State's

contention that it did not matter what defendant was told at the time he was arrested

and questioned because defendant was only a suspect and there were no charges filed

against him. Once arrested, defendant was entitled to be informed of the charge for

which he was being placed under arrest before deciding whether to waive his right

against self-incrimination.

It makes no difference whether the charge is an indictable offense stated in

a civilian's or law enforcement officer's filed complaint warrant, attesting to

facts that establish probable cause to believe the defendant committed the

alleged crime, R. 3:2-1(a); R. 3:3-1(a), or if the defendant is arrested without a

warrant based on the officer's probable cause to believe the defendant committed

the crime. State v. Brown, 205 N.J. 133, 144 (2011). In the former case, a

A-2641-17T2 22 judicial officer reviews the complaint-warrant and issues an arrest warrant if

probable cause is established. R. 3:3-1(a). In the latter case, the officer

determines probable cause based on the facts. 6 Brown, 205 N.J. at 144. In either

case, a responsible individual determines what charges would warrant an arrest.

Regardless of the process, the analysis for whether a defendant knowingly

and intelligently waived the right against self-incrimination is the same. As

A.G.D. and Vincenty make clear, a defendant cannot knowingly and

intelligently decide to waive the right against self-incrimination unless he or she

understands the charges that he or she faces. Vincenty, 237 N.J. at 132–34;

A.G.D., 178 N.J. at 68.

Here, because defendant was under arrest, he faced the same risk of self-

incrimination as the defendants in A.G.D. and Vincenty. To find that he was not

6 To be clear, in this case we are only addressing where an officer's probable cause to arrest is developed through an investigation, not when an arrest is made spontaneously when responding to a crime scene or after witnessing a crime being committed. The difference is akin to the Court's treatment of the automobile exception to the warrant requirement described in Witt, where the Court stated, "Going forward, searches on the roadway based on probable cause arising from unforeseeable and spontaneous circumstances are permissible. However, when vehicles are towed and impounded, absent some exigency, a warrant must be secured." 223 N.J. at 450. Our holding today does not address custodial interrogation that occurs after an "unforeseeable and spontaneous" arrest because those facts are not in this case. A-2641-17T2 23 entitled to the same information as those defendants simply because he was

arrested without a warrant would contravene both of the Court's holdings.7

Moreover, contrary to the State's other contention on appeal, the trial court's

error in not suppressing defendant's statement in this matter was not harmless.

During the interview, defendant admitted that A.M. was his daughter's mother,

that he spent a significant amount of time with her, and that she gave him rides.

He described her vehicle, which matched the surveillance recording and

description provided by other witnesses, and while he denied being in Red Bank

at the time of the shooting, his phone records, which police obtained after seizing

his phone during the interview, contradicted defendant's assertion. All of this

evidence obtained through the interrogation "could be fairly characterized as

inculpatory." Vincenty, 237 N.J. at 136.

7 We do not share our concurring colleague's concern that our holding will create logistical problems for law enforcement. Our opinion is not intended to suggest that the charge upon which an officer believes he or she has probable cause to arrest must be the specific charge with which a defendant is ultimately charged. Rather, our holding is limited to requiring that the interrogating officer inform the arrested interrogee of the charge that, at the time of arrest, the officer had probable cause to believe defendant committed. We recognize that the charge may morph into a different degree crime or even a totally different offense as a post-interrogation investigation develops. We still conclude the law requires an officer be transparent and truthful about why a defendant was arrested before a request is made for a waiver of his or her Miranda rights. A-2641-17T2 24 Under these circumstances, we are constrained to vacate defendant's

conviction and remand for a new trial. We recognize that the trial court did not have

an opportunity to consider the issue that we determined warrants a new trial in this

case. For that reason, we leave it to the trial court to consider the parties' further

arguments and determine pretrial what evidence, in addition to defendant's statement

to police, should also be suppressed as "fruit of the poisonous tree" derived from the

illegal interrogation, or admitted into evidence despite the taint. See, e.g., State v.

Maltese, 222 N.J. 525, 551–52 (2015) (remanding for the trial court to determine

whether evidence "discovered directly" from the defendant's illegally obtained

confession should be suppressed pursuant to the exclusionary rule); State v. Johnson,

120 N.J. 263, 291 (1990) (addressing the inevitable discovery doctrine).

III.

We reach a similar conclusion as to defendant's argument in points III and

IV of his brief in which he contends the trial court erred by relying upon Rule

804(b)(1)(A) to admit the victim's statement to police through a reading of his

testimony from the Wade/Henderson hearing. At the hearing, the victim

testified that he could not recall ever making the statement to police. He later

refused to testify at trial. In light of his refusal to testify, the trial court declared

the victim unavailable and allowed the State to introduce his statement from the

A-2641-17T2 25 hospital through Detective Weisbrot reading a transcript of the victim's prior

testimony from the Wade/Henderson hearing.

Under these circumstances, we conclude it was harmful error to admit the

hearsay statement, because defendant did not have an opportunity to cross-

examine the victim on his testimonial statement that the trial court allowed the

officer to recite for the jury. For that reason, the victim's statement to police

while hospitalized cannot be reintroduced at defendant's new trial unless the

victim testifies.

A.

At the pretrial hearing, the victim stated that he did not recall the shooting

or the statement he gave to police. Defendant cross-examined the victim at the

pretrial hearing about the identification procedures used by the police when

speaking with him at the hospital but could not substantively cross-examine him

as to the statement the victim gave to police because he could not recall giving

the statement. Moreover, even if he did recall giving the statement at the

hospital, any questions unrelated to the victim's identification of defendant

would have been outside the scope of permissible cross-examination under Rule

611.

A-2641-17T2 26 The trial court found that the victim had feigned memory loss at the

Wade/Henderson hearing and determined that his statement to the detectives

while hospitalized could be admitted under Rule 803(a)(1) as a prior inconsistent

statement if the victim testified he could not remember the shooting at trial. The

court also recognized that whether the victim had in fact feigned memory loss

was a matter for the jury to resolve.

Before the start of trial, the prosecutor notified the court that the victim

was not cooperating and would likely invoke the Fifth Amendment and refuse

to testify. The court said that if this occurred, it would find the victim

"unavailable" under Rule 804(a)(1) and would admit his pretrial hearing

testimony pursuant to Rule 804(b)(1)(A). Defendant argued that this would

result in a Confrontation Clause violation, but the court rejected the argument

finding Rule 804(b)(1)(A) directly applicable.

During trial, but outside the presence of the jury, the court questioned the

victim on whether he would testify. The victim invoked his Fifth Amendment

privilege against self-incrimination based on the charges he faced for the murder

of R.P. The State offered him immunity, and the court ordered him to testify,

but he still refused. The State claimed that because he was already in custody

and facing charges for murder, they saw no point in pursuing a contempt charge.

A-2641-17T2 27 Instead, it requested that the court declare the victim unavailable and allow the

State to present his Wade/Henderson testimony through Weisbrot. Relying on

Rule 804(b)(1)(A), the court granted that request.

At the start of Weisbrot's second day of testimony, the court instructed the

jury that the victim was alive but unavailable as a witness and that it should not

draw any negative inference from his unavailability. The State then presented

the victim's Wade/Henderson hearing testimony by way of the prosecutor

reading the questions put to the victim and Weisbrot reading the victim's

answers. That hearing testimony contained the victim's statement to the police

that he gave at the hospital.

Specifically, Weisbrot read from the transcript of the victim's testimony

from the Wade/Henderson hearing at which the questions asked of the victim in

the hospital, as well as his answers to those questions, were read to the victim

from the statement he gave to the police. Weisbrot also read each response the

victim gave to the questions at the hearing about whether he recalled giving the

recorded answers to the police's questions in the hospital. Weisbrot's reading of

the victim's testimony included the victim's statements on cross-examination

during which defense counsel asked questions about his inability to recall being

interviewed by the detectives in the hospital and the procedure by which they

A-2641-17T2 28 had the victim identify a photograph of defendant. In addition, the cross-

examination also addressed the victim's criminal history. Through that process,

the State was able to introduce into evidence at trial the victim's entire statement

to police.

B.

We review an evidentiary hearsay ruling under the abuse of discretion

standard but afford no deference to questions of law, such as those interpreting

constitutional rights. State v. McInerney, 450 N.J. Super. 509, 512 (App. Div.

2017).

The Sixth Amendment to the United States Constitution and Article I,

Paragraph 10 of the New Jersey Constitution afford an accused in a criminal

case the right "to be confronted with the witnesses against him." U.S. Const.

amend. VI; N.J. Const. art. I, ¶ 10. These "provisions express a clear preference

for the taking of testimony subject to cross-examination." State v. Cabbell, 207

N.J. 311, 328 (2011).

"One of the essential purposes of cross-examination is to test the reliability of testimony given on direct- examination." State v. Feaster, 184 N.J. 235, 248 (2005) (citations omitted). Indeed, "[w]hen a witness's direct testimony concerns a matter at the heart of a defendant's case, the court should strike that testimony if the witness" is unavailable for cross-examination

A-2641-17T2 29 before the same factfinder. See ibid. (citations omitted).

[Id. at 328–29 (alteration in original).]

"The central concern of the Confrontation Clause is to ensure the

reliability of the evidence against a criminal defendant by subjecting it to

rigorous testing in the context of an adversary proceeding before the trier of

fact." Maryland v. Craig, 497 U.S. 836, 845 (1990). "In Craig, the United States

Supreme Court outlined four key elements of a defendant's right of

confrontation: physical presence; the oath; cross-examination; and observation

of demeanor by the trier of fact." State v. Castagna, 187 N.J. 293, 309 (2006).

While the Confrontation Clause expresses a preference for in-court

testimony, it does not preclude all forms of hearsay. State ex rel. J.A., 195 N.J.

324, 342 (2008). "Hearsay is 'a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted.'" State v. Branch, 182 N.J. 338, 357 (2005) (quoting Rule

801(c)). "Hearsay is not admissible except as provided by [the Rules of

Evidence] or by other law." N.J.R.E. 802.

The Confrontation Clause prohibits the use of out-of-court testimonial

statements when the defendant did not have the opportunity to cross -examine

the witness on the statement. J.A., 195 N.J. at 342, 351 (discussing Crawford v.

A-2641-17T2 30 Washington, 541 U.S. 36, 51–52 (2004)). Police statements obtained in

furtherance of a criminal investigation are testimonial for purposes of the

Confrontation Clause. Id. at 345 (discussing Davis v. Washington, 547 U.S.

813, 822 (2006)).

"The government bears the burden of proving the constitutional

admissibility of a statement in response to a Confrontation Clause challenge."

State v. Basil, 202 N.J. 570, 596 (2010). Where admission of evidence under a

hearsay rule exception results in a Confrontation Clause violation, the evidence

must be excluded. See Branch, 182 N.J. at 369–70 ("Crawford . . . is a reminder

that even firmly established exceptions to the hearsay rule must bow to the right

of confrontation.").

"As Crawford explains, the Confrontation Clause of the United States

Constitution bars the 'admission of testimonial statements of a witness who did

not appear at trial unless he was unavailable to testify, and the defendant had

had a prior opportunity for cross-examination.'" State v. Slaughter, 219 N.J.

104, 116–17 (2014) (quoting Crawford, 541 U.S. at 53–54). Where an out-of-

court statement is testimonial for purposes of the Confrontation Clause, the

statement may be admissible in evidence "so long as the [witness] is present at

trial to defend or explain it." Cabbell, 207 N.J. at 329 (alteration in original)

A-2641-17T2 31 (quoting Crawford, 541 U.S. at 59 n.9). The Court underscored: "One of the

key objectives of the Confrontation Clause is to give the 'jury' the opportunity

'to observe the witness's demeanor,'" as it is the jury who decides the defendant's

fate. Id. at 330 (quoting United States v. Owens, 484 U.S. 554, 560 (1988)).

Under Rule 804(a)(1), a declarant is "unavailable" if the declarant "is

exempted by ruling of the court on the ground of privilege from testifying

concerning the subject matter of the statement." N.J.R.E. 804(a)(1). Rule

804(b)(1)(A) provides an exception to the hearsay rule where the witness is

unavailable and gave testimony "at a prior trial of the same or a different matter,

or in a hearing or deposition taken in compliance with law in the same or another

proceeding" and that testimony is "offered against a party who had an

opportunity and similar motive in the prior trial, hearing or deposition to develop

the testimony by examination or cross-examination." N.J.R.E. 804(b)(1)(A).

The bar against permitting hearsay when there has been no opportunity to

cross-examine has been applied by our courts when witnesses are deemed

"unavailable" because they refuse to testify. For example, in State v. Williams,

the State called as a witness Kevin Madison, who had been charged in a separate

indictment with the same crimes as Williams. 182 N.J. Super. 427, 430–32

(App. Div. 1982). Madison had given police a statement describing his and

A-2641-17T2 32 Williams's involvement in the crimes. Id. at 430. At the time of Williams's trial,

Madison had already been convicted and his case was pending appeal. Ibid.

At a pretrial hearing, Madison invoked the Fifth Amendment and refused

to testify at Williams's trial, which prompted the State to grant him immunity.

Id. at 430–31. However, Madison continued to assert the Fifth Amendment and

refused to answer any questions. Id. at 431.

The State sought to admit Madison's statement to police as a prior

inconsistent statement. Ibid. The trial court denied that request, finding the

statement hearsay that did not fall within any exception. Ibid. Madison had

offered no testimony; thus, his police statement was not a statement inconsistent

with trial testimony. Ibid. Moreover, admission of Madison's police statement

would deny Williams the constitutional right to cross-examine Madison before

the jury. Ibid.

On appeal, we stated the following:

The statement was not subject to cross-examination when given by Madison. Moreover, defendant will not have an opportunity to cross-examine Madison at trial about the statement because Madison has refused, albeit without legal justification, to answer any questions put to him. Thus, the Confrontation Clause bars the admission of Madison's statement into evidence at defendant's trial.

[Id. at 438.]

A-2641-17T2 33 In Cabbell, two defendants were charged in the shooting death of a man

who was riding in a car that had collided with the defendants' vehicle. 207 N.J.

at 317–19. After the shooting, eyewitness Karine Martin described the accident

and shooting to police and identified the defendants as the shooters. Id. at 322.

At trial, the prosecutor called Martin as a witness. Id. at 319. While on

the witness stand, she repeatedly said that she did not wish to testify. Ibid. The

prosecutor persisted and got her to admit that she was currently in custody for a

drug offense and that she had given a truthful statement to police. Ibid. The

court then interrupted trial to hold a Rule 104 hearing outside the prese nce of

the jury to determine whether her police statement was reliable and admissible.

At the hearing, Martin refused to answer questions until the court

informed her of the contempt and jail consequences. Id. at 320. Then, she

answered by claiming a lack of memory. Ibid. She admitted, however, that she

was on the road of the shooting when the shooting occurred and that her

statement to police was truthful. Ibid. On direct examination, Martin claimed

that she was under the influence of crack cocaine at the time of the shooting and

when she spoke with police, but on cross-examination she stated that she did not

remember whether she had been under the influence at the time of the shooting

A-2641-17T2 34 or subsequent questioning. Ibid. The court determined that Martin's statement

to police would be admissible under Rule 803(c)(5) as a past recollection

recorded and that she would not be called to testify any further before the jury.

Id. at 321 (citing N.J.R.E. 803(c)(5)).

In finding that admission of Martin's statement to police violated Cabbell's

right to confront her, the Court explained:

The Confrontation Clause prohibits the use of a witness's out-of-court testimonial hearsay statement as a substitute for in-court testimony when a defendant has never been given the opportunity to cross-examine the witness. . . . For [C]onfrontation-[C]lause purposes, testimonial statements are those in which witnesses bear testimony against the accused . . . and include certain statements that are the product of police interrogation . . . . More precisely, a statement made to the police is testimonial when it is given in circumstances objectively indicat[ing] that . . . the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

[Id. at 329 (third alteration in original) (citations and internal quotation marks omitted).]

In Nyhammer, the Supreme Court approved the admission of a child's

videotaped interview in a sexual assault case. 197 N.J. at 389. In approving the

tape's admission even though it "constitute[ed] testimonial hearsay for Sixth

Amendment purposes," id. at 412, the Court determined that the defendant had

A-2641-17T2 35 not been deprived of his rights under the Confrontation Clause as defense

counsel had the opportunity to cross-examine the child at trial but chose not to

do so based upon a tactical decision. Id. at 412–14. Here, however, as in

Cabbell, the witness, who was the victim, was never presented for cross-

examination before the jury. See Cabbell, 207 N.J. at 333.

Here, the State concedes on appeal that the victim's signed statement could

not have been admitted at trial as a prior inconsistent statement. But it argues

that his testimony was admissible under Rule 804, because the victim was

unavailable at trial, and defendant had an opportunity to cross-examine the victim at

the Wade/Henderson hearing. Thus, the State contends the victim's statement was

admissible under Rule 804 through the prosecutor and Weisbrot's reading of the

victim's testimony from the Wade/Henderson hearing. We disagree.

We reject the trial court's reliance on Rule 804(b)(1)(A), because

defendant did not have "an opportunity and similar motive in the prior . . .

hearing . . . to develop the testimony by . . . cross-examination." N.J.R.E.

804(b)(1)(A). Due to the victim's claimed lack of memory, defendant did not

have an "opportunity" to develop the victim's testimony by cross-examination.

See State v. Coder, 198 N.J. 451, 467 (2009) (finding witness "unavailable" at

a Rule 104 hearing pursuant to Rule 804(a)(3) where witness claimed lack of

A-2641-17T2 36 memory). Moreover, the purpose of the hearing was limited to the victim's out-

of-court identification of defendant. Defendant's purpose in developing the

victim's testimony at trial would have been to attack the victim's credibility in

the eyes of the factfinder, specifically the veracity of his identification of

defendant as the shooter. Defendant did not have the opportunity to do that at

the hearing because the victim denied any recollection of the shooting and the

police statement. Therefore, admission of the victim's statement under Rule

804(b)(1)(A) was in error.

Independent of this Rule 804 issue, the admission of the victim's statement

also ran afoul of defendant's rights under the Confrontation Clause. Defendant

did not have the opportunity to cross-examine the victim about his statement to

police—either at the pretrial hearing or in front of the jury—which had been

admitted because the victim was unavailable by virtue of his feigned memory

loss at the hearing and refusal to testify at trial. In so concluding, we find

defendant was deprived of both the opportunity to cross-examine the victim and

the opportunity to have the trier of fact observe the victim's demeanor on cross-

examination. Castagna, 187 N.J. at 309.

To begin with, defendant "did not have 'a prior opportunity to cross-

examine' in any real sense," Cabbell, 207 N.J. at 332, at the pretrial hearing

A-2641-17T2 37 because the victim denied any memory of the shooting or of giving his statement

identifying defendant. Cf. Coder, 198 N.J. at 466–67. Without any memory as

to the statement, there was nothing to cross-examine the victim about at the Rule

104 hearing, and therefore defendant never had a meaningful opportunity to

cross-examine the victim.

Moreover, by allowing the statement to be admitted through Weisbrot's

testimony, defendant was deprived of the jury being able to assess the victim's

demeanor. Contrary to the trial court's acknowledgment that the jury was to

determine if the victim's memory loss was feigned, the jury was never given that

opportunity. Craig, 497 U.S. at 845 ("[T]he right guaranteed by the

Confrontation Clause . . . permits the jury that is to decide the defendant's fate

to observe the demeanor of the witness in making his statement, thus aiding the

jury in assessing his credibility."). "[C]ross-examination would have allowed

counsel not only to explore [the victim's] state of mind at the time but also to

probe for bias. Of great import as well, the jury was deprived of a chance to

assess [the victim's] demeanor and credibility." Slaughter, 219 N.J. at 121.

Because defendant never had the opportunity to cross-examine the victim before

the factfinder that was to decide his fate, admission of the victim's statement

violated his confrontation rights.

A-2641-17T2 38 In sum, admission of the victim's hearing testimony, which contained his

police statement verbatim, violated defendant's right to cross-examine the victim

before the jury and should not be admitted again at defendant's new trial.

IV.

Because we have remanded this matter for a new trial, we need not address

defendant's remaining arguments relating to the prosecutor's comment during

summation or the excessiveness of his sentence.

Reversed and remanded for a new trial. We do not retain jurisdiction.

A-2641-17T2 39 SUSSWEIN, J.A.D., concurring in part and dissenting in part.

In section II of the majority opinion, my colleagues announce a new rule that

when police make an arrest following an investigation, they must at the outset of a

custodial interrogation advise the interrogee of the offense(s) for which he or she

was arrested regardless whether a complaint-warrant or arrest warrant has been

issued. I respectfully dissent from this portion of the majority opinion because I

believe this new rule has the potential to introduce uncertainty to the administration

of Miranda1 warnings.

The majority opinion builds upon the foundation laid by our Supreme Court's

recent decision in State v. Vincenty, 237 N.J. 122 (2019). The Court in that case

ruled that law enforcement officers must "make a simple declaratory statement at

the outset of [a custodial] interrogation that informs [the arrestee] of the essence of

the charges filed against him." Id. at 134 (emphasis added). The majority today

extends the notification rule announced in Vincenty, holding that it can apply even

when charges have not been filed against the interrogee and no arrest warrant has

been issued.

In doing so, the majority opinion acknowledges that it is resolving a question

of first impression. Sims, __ N.J. Super. at __ (slip op. at 2). The per se rule

announced today will change current law and longstanding police interrogation

1 Miranda v. Arizona, 384 U.S. 436 (1966). practices. Until now, police have not been required to inform a custodial interrogee

as to the offense(s) for which he was arrested unless a complaint-warrant or arrest

warrant had been issued. To fully appreciate how the majority opinion alters current

law, it is helpful to retrace the incremental steps leading to today's decision.

In State v. A.G.D., our Supreme Court expanded the list of familiar Miranda

warnings, holding that a waiver of Miranda rights is invalid when police fail to

inform the defendant that a criminal complaint has been filed or an arrest warrant

has been issued. 178 N.J. 56, 58–59 (2003). In establishing this bright-line rule,

the Court explicitly recognized the critical significance of formal charging,

explaining that

a criminal complaint and arrest warrant signify that a veil of suspicion is about to be draped on the person, heightening his risk of criminal liability. Without advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden to the Court's satisfaction that the suspect has exercised an informed waiver of rights, regardless of other factors that might support his confession's admission.

[Id. at 68.]

In State v. Nyhammer, the Court further acknowledged the significance of

formal charging, explaining, "[t]he issuance of a criminal complaint and arrest

warrant by a judge is an objectively verifiable and distinctive step, a bright line,

when the forces of the state stand arrayed against the individual." 197 N.J. 383, 404

A-2641-17T2 2 (2009). The Supreme Court in Nyhammer took pains to explain the limited scope

of its earlier ruling in A.G.D.:

Moreover, we emphasized that "[o]ur holding [in A.G.D.] is not to be construed as altering existing case law . . . other than imposing the basic requirement to inform an interrogatee that a criminal complaint or arrest warrant has been filed or issued."

[Id. at 405 (alterations in original) (emphasis added) (quoting A.G.D., 178 N.J. at 68–69).]

In Vincenty, the Court expounded upon A.G.D., explicitly requiring police to

not only advise the arrestee of the fact that a criminal complaint or arrest warrant has

been issued but also to provide a "simple declaratory statement" as to the charges

filed against him. 237 N.J. at 134. Under the A.G.D./Vincenty rule, police

interrogators know with objective certainty not only when this notification

requirement is triggered—a complaint-warrant or arrest warrant has been

issued—but also know with objective certainty what they are required to

disclose, namely, the offense(s) that are specified in the complaint-warrant.

We should be careful not to transform this simple prophylactic rule into

an unnecessarily complex one. The Supreme Court's repeated references in

A.G.D., Nyhammer, and Vincenty to charges that have been filed and warrants that

have been issued are not superfluous dicta. Rather, in my view, the "objectively

verifiable" nature of judge-issued complaint-warrants and arrest warrants,

A-2641-17T2 3 Nyhammer, 197 N.J. at 404, is an important consideration that supports the rationale

for the Supreme Court's holdings in A.G.D and Vincenty.

The underlying premise is that arrestees should be advised of their "true

status" before being asked to waive Miranda rights. A.G.D., 178 N.J. at 68. When

a complaint-warrant or arrest warrant is issued by a judge, there is no ambiguity as

to the essential nature and gradation of the charge(s) the defendant is facing because

the specific offense(s) for which a judge found probable cause are set forth in the

charging document. See R. 3:2-1(a)(1) ("The complaint shall be a written statement

of the essential facts constituting the offense charged . . . ."). The specificity of a

complaint-warrant thus makes it possible for police to provide a "simple declaratory

statement" to inform an interrogee accurately and definitively as to the nature and

seriousness of the charges that have been filed as of the time of a custodial

interrogation.2

The assessment of an arrestee's "true status" can become more complicated

when charges have not been approved by a judge. To be sure, arresting officers must

have probable cause to believe an offense has been or is being committed before

2 The arrestee's "true status" refers to the status at the time of the custodial interrogation. See A.G.D., 178 N.J. at 68. Obviously, initial charges set forth in a complaint-warrant can be amended. A grand jury, for example, may add to or delete charges that were initially filed by complaint-warrant. A-2641-17T2 4 making an arrest, or else the arrest is unlawful. It is possible, however, for an

officer to have a lawful basis for an arrest but insufficient information, pending

further investigation, to determine which exact offense(s) have been committed.

Even when probable cause was developed in the course of an investigation, as

contemplated in the majority opinion, there still may be reasonable disagreement as

to what specific offenses were committed and thus which ones should be included

in an application for a complaint-warrant. The number and gradation of offenses

has a significant impact on a defendant's sentencing exposure, and thus directly

impacts his "true status" within the meaning of A.G.D.

Consider, by way of example, that when a defendant is arrested for unlawful

possession of controlled dangerous substances, police at the outset of an

interrogation may not have sufficient information to determine whether the

defendant committed the offense of simple possession, N.J.S.A. 2C:35-10, or the

more serious offense of possession with intent to distribute, N.J.S.A. 2C:35-5(a).

Even in the case of a planned arrest pursuant to an investigation of drug trafficking,

detectives conducting a custodial interrogation may not be in a position to know

whether the defendant committed a first, second, or third-degree drug

distribution/possession with intent crime, which depends on the aggregate amount

of drugs involved, N.J.S.A. 2C:35-5(c). Nor may they be able to determine whether

A-2641-17T2 5 the defendant committed conspiracy, N.J.S.A. 2C:5-2, or even—in rare cases—the

crime of leading a narcotics trafficking network, N.J.S.A. 2C:35-3.

Likewise, when an arrest is made for assault, the interrogating officer may

lack sufficient medical information to determine whether the victim suffered bodily

injury, significant bodily injury, or serious bodily injury, N.J.S.A. 2C:11-1(a), (d),

(b), which can determine whether the arrestee committed simple assault or the far

more serious crime of aggravated assault. In the same vein, an interrogating officer

may not have sufficient information concerning the arrestee's culpable mental state

to decide at the outset of the interrogation whether the defendant committed the

specific-intent crime of attempted murder, which is a far more serious crime than

aggravated assault.3

I list only a few examples of the myriad situations where an arrest and ensuing

custodial interrogation may be initiated before police have sufficient information to

determine the seriousness and statutory gradation of the suspected offense conduct.

In these situations, extending the bright-line rule established in Vincenty could put

the proverbial cart before the horse by requiring a police officer to advise the

3 There is no such ambiguity in this case given the execution-style nature of the shooting and the life-threatening injuries that were inflicted. Furthermore, the arresting detectives had already determined the retaliatory motivation for the shooting. A-2641-17T2 6 custodial interrogee as to the specific charges he is facing before an informed

charging decision can be made. When that happens, the officer may not be able to

accurately advise the arrestee as to his "true status" within the meaning of the

A.G.D./Vincenty rule because that status may be in flux.

It bears noting, moreover, that the officer who conducts the custodial

interrogation may not be the law enforcement official who decides which offense(s)

will be included in the ensuing complaint-warrant application that must be made

before the arrestee is released or is held pending a pretrial detention hearing.4 The

complaint review and approval process prescribed in the Attorney General's CJRA

Directive may reduce or expand the number of charges contemplated by the

interrogating officer, or may upgrade or downgrade those charges.

Consequently, requiring an interrogating officer to advise an arrestee as to

specific charges that have not yet been approved may, in some cases, misinform the

arrestee as to his predicament. Moreover, because we are treading on new and

4 To ensure the uniform implementation of the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, in October 2016, the Attorney General issued a directive to law enforcement that generally provides that applications for complaint-warrants involving indictable crimes must be reviewed and approved by an assistant prosecutor or deputy attorney general before being submitted to a judge. See Attorney General, Law Enforcement Directive No. 2016-1, §§ 3.1 to 3.6 (CJRA Directive). A-2641-17T2 7 untested ground, 5 our opinion today can offer no guidance on how a reviewing

court should address variance between the unfiled charges now required to be

announced to the interrogee and the charges set forth in a complaint-warrant

issued shortly after the custodial interrogation. Such variance might inject new

fact-sensitive issues to be litigated at suppression hearings when defendants

challenge the accuracy of the charge-related information that police disclosed

during the Miranda waiver colloquy pursuant to the new rule announced today.

A per se rule requiring notification of charges not yet filed may create

additional uncertainties when, for example, a defendant is arrested for one criminal

incident but also is suspected of committing other uncharged crimes. Consider a

situation where a burglar is caught red-handed in a home and also is suspected of

committing a rash of other residential burglaries for which the proofs are less

compelling. It is not clear under the rule announced today whether an interrogating

detective must tell the arrestee he is suspected of—and likely to be charged with—

committing those other burglaries. New questions will arise under this new

paradigm. For example, must the interrogating officer decide whether, in view of

5 As previously noted, the majority opinion addresses an issue of first impression under New Jersey law. Neither the briefs submitted by the parties nor the majority opinion cite to federal or other state precedents that require the advisement mandated by the new rule announced today. A-2641-17T2 8 the latest episode, there is now probable cause to believe that the defendant

committed some or all of those other burglaries? If probable cause for those other

criminal events has, in the officer's opinion, ripened as a result of the suspect's latest

offense, must the officer so advise the arrestee before conducting the custodial

interrogation?

The A.G.D./Vincenty rule, as it presently stands, avoids the need to answer

such subjective questions by relying on what the Supreme Court in Nyhammer

described as an "objectively verifiable and discrete fact," that is, the issuance of a

complaint-warrant or arrest warrant. 197 N.J. at 405. I believe that as a general

proposition, any per se rule that expands the list of Miranda warnings/advisements

should be unambiguous, relying on objectively verifiable and discrete facts so that

police know precisely what they are required to disclose to the interrogee.6 Indeed,

the whole point of a "bright line" rule is to draw clear, unambiguous lines of

demarcation. Under the new rule we announce today, the declaratory statement

6 Our Supreme Court also expanded the list of Miranda advisements in State v. Reed, 133 N.J. 237 (1993). The Court held that, "[w]hen, to the knowledge of the police, . . . an attorney is present or available, and the attorney has communicated a desire to confer with the suspect, the police must make that information known to the suspect before custodial interrogation can proceed or continue." Id. at 261–62. The fact that an attorney is present at the police station or is available and has asked to confer with an arrestee is an objectively verifiable and discrete circumstance that can be relayed accurately to the arrestee through a simple declaratory statement. A-2641-17T2 9 that police will be required to make at the outset of a custodial interrogation may

not be as simple as the one contemplated in Vincenty. 237 N.J. at 134. Rather,

the determination of a defendant's "true status," that is, a determination as to

what charges he is facing, may well be, to borrow phraseology from Nyhammer,

a more "elusive concept that will vary depending on subjective considerations

of different police officers." 197 N.J. at 405 (explaining that police are not

required to inform persons of their "suspect status" because "sus pect status is

not an objectively verifiable and discrete fact."). It bears noting in this regard

that the provisions in the Attorney General's CJRA Directive that require

prosecutorial review and oversight of the complaint-warrant application process

presuppose that law enforcement officials can disagree as to the appropriate

charges.

One of the hallmarks of Miranda and its progeny is that the familiar five-fold7

warnings/advisements are essentially scripted. They are not tailored based on

7 As explained in State v. Tillery:

In Miranda, the United States Supreme Court held that before law enforcement subjects a suspect to custodial interrogation, the suspect must be advised: (1) "that he has the right to remain silent"; (2) "that anything he says can be used against him in a court of law"; (3) "that he has the right to the presence of an attorney"; and (4)

A-2641-17T2 10 subjective determinations made by interrogating officers. For the foregoing

reasons, the majority's extension of the A.G.D./Vincenty rule might introduce

subjectivity, ambiguity, and uncertainty as to what police are required to tell

arrestees before conducting custodial interrogations.

Finally, I would note that it is not clear that the Court in Vincenty intended

to lay the groundwork for the significant change to our custodial interrogation

jurisprudence that will result from today's opinion. Our Supreme Court kn ows

best whether and to what extent formal charging was essential to its holdings in

A.G.D. and Vincenty. Those cases amply demonstrate our Supreme Court's

willingness to adopt new rules, practices, and procedures to safeguard the

constitutional rights of persons who are subjected to custodial interrogation. See

also R. 3:17 (generally requiring electronic recordation of stationhouse

interrogations). Without question, a custodial interrogee is better able to make

an informed decision whether to waive Miranda rights when he is alerted to the

offense(s) for which he was arrested. The challenge is how best to effectuate

"that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda imposes a fifth requirement: "that a person must be told that he can exercise his rights at any time during the interrogation."

[238 N.J. 293, 315 (2019) (internal citations omitted).] A-2641-17T2 11 that basic principle. Given the important ramifications of such a significant

change to the Miranda rule, I would leave it to our Supreme Court to consider

the costs and benefits and decide whether to dispense with the explicit

prerequisite in Vincenty that formal charges have been filed.

A-2641-17T2 12