State of New Jersey v. Charles Puryear

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2433-14T31
A-2434-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent/ APPROVED FOR PUBLICATION
Cross-Appellant,
June 24, 2015
v.
APPELLATE DIVISION
CHARLES PURYEAR,

Defendant-Appellant/
Cross-Respondent.
___________________________________________

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MARKUS BROWN,

Defendant-Respondent.
___________________________________________

Argued May 11, 2015 – Decided June 24, 2015

Before Judges Sabatino, Leone, and Gilson.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment Nos. 12-02-00556, 12-02-00557,
and 12-02-00558.

1
These appeals originally calendared back-to-back are
consolidated for purposes of this opinion only.
 James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for appellant/
cross-respondent Charles Puryear (Joseph E.
Krakora, Public Defender, attorney; Mr.
Smith, of counsel and on the brief).

Andrew R. Burroughs, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent/cross-appellant
(A-2433-14)/appellant (A-2434-14) State of
New Jersey (Carolyn A. Murray, Acting Essex
County Prosecutor, attorney; Mr. Burroughs,
of counsel and on the brief).

Deborah C. Collins, Assistant Deputy Public
Defender, argued the cause for respondent
Markus Brown (Joseph E. Krakora, Public
Defender, attorney; Michele A. Adubato,
Designated Counsel, on the brief).

The opinion of the court was delivered by

GILSON, J.S.C. (temporarily assigned).

These related interlocutory appeals raise questions

concerning the admissibility of custodial statements given by

co-defendants to law enforcement. Defendant Charles Puryear

(Puryear) and defendant Markus Brown (Brown) were charged with

crimes related to a fatal shooting that took place on November

26, 2011, in Newark, and an armed robbery that took place

several days later in a motel in Sussex County. Each defendant

gave two custodial statements to law enforcement on December 5,

2011. After a hearing, the trial court in Essex County

ultimately suppressed the first statement given by Puryear,

which concerned the robbery in Sussex County, and admitted

2 A-2433-14T3
Puryear's second statement, which concerned the Essex County

shooting. The trial court admitted Brown's first statement,

which concerned the Sussex County robbery, and ultimately

suppressed his second statement, which concerned the shooting in

Essex County.

On these interlocutory appeals, Puryear argues that his

second statement also should have been suppressed, and the State

argues that the trial court erred in suppressing Puryear's first

statement and Brown's second statement. Given the related facts

and procedural history, we issue this consolidated opinion

addressing all of the interlocutory appeals.

Having conducted a thorough review of the record in each

case, and having considered all of the arguments, we affirm the

well-reasoned decision by Judge Michael L. Ravin, and his

companion order, issued on December 17, 2014, which suppressed

one of the statements given by each defendant, but admitted the

other statements.

I.

The State alleges that on November 25, 2011, at

approximately 10:00 p.m., Puryear and Brown approached a group

of people on a street in Newark, New Jersey. Puryear pointed a

.22 caliber handgun at the group, and shouted, "Don't move."

The group of people attempted to run away, and Puryear fired

3 A-2433-14T3
nine shots, hitting and killing one person. Later, nine .22

caliber shell casings were recovered at the scene.

Concerning the Sussex County incident, the State alleges

that on December 4, 2011, Puryear and Brown committed an armed

robbery at the Rolling Hills Motel in Sussex County. A gunshot

was fired during that robbery, and the State Police were

notified. When State troopers arrived, they encountered Brown,

who fled. Following a search, Puryear and Brown were eventually

apprehended in the early morning hours of December 5, 2011, near

the motel.

When defendants were apprehended, they were both arrested

and advised of their Miranda rights.2 Thereafter, defendants

were taken to the State Police barracks. While at the State

Police barracks, each defendant was separately interviewed twice

by law enforcement officers. Puryear was first interviewed by a

State Police detective and a State trooper. That interview

began shortly after 5:00 a.m. on December 5, 2011, and primarily

focused on the alleged robbery at the motel in Sussex County. A

number of hours later, beginning at approximately 5:44 p.m. on

December 5, 2011, Puryear was interviewed by two Essex County

2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

4 A-2433-14T3
detectives. That interview primarily focused on the alleged

shooting in Newark.

Brown was first interviewed on December 5, 2011, beginning

at approximately 7:00 a.m., by the same State Police detective

and State trooper who had interviewed Puryear. Several hours

later, beginning at approximately 3:59 p.m. on December 5, 2011,

Brown was interviewed by the same two Essex County detectives

who would later interview Puryear.

At the beginning of all four interviews, the officers

advised each defendant of his Miranda rights and each defendant

signed Miranda waiver forms. The interviews were audio and

video recorded. During each interview, Puryear and Brown made a

number of incriminating statements.

II.

Puryear and Brown were both indicted and charged with a

number of crimes in Essex and Sussex Counties. In Essex County,

they were charged under three different indictments. The

charges against Puryear in Essex County included first-degree

murder, first-degree robbery, and weapons-related offenses. The

charges against Brown in Essex County included first-degree

felony murder, first-degree robbery, and weapons-related

offenses. The charges in Sussex County against both defendants

5 A-2433-14T3
included first-degree robbery, second-degree burglary,

aggravated assault, and weapons-related offenses.

In Essex County, defendants moved to suppress their

statements, and the State moved to admit all four statements.

The State also moved to use portions of those statements that

did not directly relate to the charges in Essex County under

N.J.R.E. 404(b).

The trial court conducted a three-day hearing. During that

hearing, all four law enforcement officers who participated in

the four interviews of defendants testified. The State also

introduced and played at the hearing the audio and video

recordings of each of the four statements. Transcripts of those

statements were also provided to the trial court. The State

also introduced into evidence copies of the Miranda waiver forms

signed by each defendant. Defendants elected not to testify at

the hearing and did not call any witnesses.

III.

The trial court twice addressed the motions to suppress and

admit the statements. Initially, the trial court issued a

written opinion and order, dated September 8, 2014, and ruled

that all four statements were admissible. The court reserved on

the Rule 404(b) portion of the motion, which concerned whether

the portions of the statements that did not directly relate to

6 A-2433-14T3
the Essex County charges could be used as evidence of motive or

intent. The court stated that it would address at trial

limitations and possible redactions under Rule 404(b).

Defendants then moved for reconsideration. On December 17,

2014, the court granted partial reconsideration and issued a

written decision and order. The trial court found that each of

the defendants' Miranda rights had been violated in connection

with one of the statements given by each defendant. The court

also found that the other statement given by each defendant was

admissible.

With regard to Puryear, the trial court ruled that his

first statement was inadmissible. The trial court focused on a

statement made by a State Police detective when Puryear first

came into the interview room. Specifically, the detective told

Puryear that he could not hurt himself by giving the statement,

but he could only help himself:

DET. PAULIS: The only thing you can possibly
do here is help yourself out. You cannot
get yourself in any more trouble than you're
already in. You can only help yourself out
here.

So you've been helping yourself out with
Trooper Donnelly. I just want to hear what
you have to say as far as the explanation as
to what happened tonight, all right.

7 A-2433-14T3
 After making that statement, the detective then read

Puryear his Miranda rights, and Puryear agreed to speak with the

officers.

The trial court reasoned that the statement by the

detective was incorrect and misleading. The court went on to

reason that the statement by the detective "neutraliz[ed]" the

Miranda warning that Puryear was given immediately after the

detective's statement. The court then found that because of the

detective's incorrect statement, the State had failed to show

that Puryear made a knowing waiver of his Miranda rights.

Turning to Puryear's second statement, given to Essex

County detectives, the trial court ruled that statement was

admissible. The court found that Puryear was correctly advised

of his Miranda rights and that Puryear knowingly, voluntarily

and intelligently waived those rights.

The trial court also considered, but rejected, a number of

other arguments put forth by Puryear. In that regard, the trial

court found that when Puryear asked to speak to the mother of

his child, he was not invoking his right to silence or counsel.

The court also rejected Puryear's contention that his failure to

respond immediately when the detective asked if Puryear wished

to speak was not an invocation of his right to silence. In that

regard, Puryear was twice asked if he wished to speak and he

8 A-2433-14T3
delayed responding for approximately four seconds and seven

seconds. When Puryear did not immediately respond, the

detective reminded Puryear that he had the right not to speak.

Thereafter, Puryear stated that he wished to speak to the

officers. The court also found that Puryear had not been

effectively ordered to sign the Miranda form. Finally, the

court found that Puryear had been properly informed that there

was a warrant out for his arrest.

Concerning the statements given by Brown, the trial court

ruled that Brown's first statement was admissible, but his

second statement was not admissible. The first statement, which

was given to a State Police detective and trooper, concerned the

Sussex County robbery. The court found that the officers

properly advised Brown of his Miranda rights and that Brown

knowingly, voluntarily and intelligently waived those rights and

agreed to speak with the officers. The court noted, however,

that it was reserving "on whether this statement, which concerns

that Sussex County robbery, is admissible [in the Essex County

matters] under N.J.R.E. 404(b)."

As to Brown's second statement, the trial court found that

Brown had not knowingly and intelligently waived his Miranda

rights. Specifically, the court focused on an explanation

provided by an Essex County detective when Brown asked for

9 A-2433-14T3
clarification of what it meant that his statements could be used

against him in a court of law. In response, the detective told

Brown that it meant that if Brown lied, his statement could be

used against him. In that regard, the second recorded interview

of Brown had the following exchange:

DET. MCENROE: Okay. "Anything you say can
be used against you in a court of law." You
understand number - - number (2)?

MR. BROWN: "Anything you say can be used
against you in a court of law." So that
means I may have to stand up in their court
and say this again.

DET. GONZALEZ: Well, what that's saying is
anything you say can be used against you, -
-

MR. BROWN: (Indiscernible.)

DET. GONZALEZ: - - meaning if you lie, it
can be used against you.

MR. BROWN: (Indiscernible.) Okay.

The court reasoned that the detective's explanation was an

incorrect and misleading explanation of one of the Miranda

warnings. The court then found that the State had not shown

beyond a reasonable doubt that Brown understood all of his

Miranda rights and he had not knowingly waived his rights.

IV.

We granted the State leave to appeal the suppression of

Brown's second statement. We also granted Puryear and the State

10 A-2433-14T3
leave to appeal the rulings concerning Puryear's statements. On

appeal, Puryear makes two arguments:

POINT I

BECAUSE THE AUTHORITIES NEVER WITHDREW OR
CORRECTED THE ADVICE GIVEN TO DEFENDANT THAT
"YOU CAN ONLY HELP YOURSELF OUT" BY GIVING A
STATEMENT, HIS SECOND STATEMENT, MADE ONLY
HOURS LATER, ALSO HAD TO BE SUPPRESSED AS
NOT KNOWING OR INTELLIGENT.

POINT II

THE STATE FAILED TO SCRUPULOUSLY HONOR
DEFENDANT'S CLEAR INDICATION THAT HE DID NOT
WISH TO MAKE A STATEMENT UNTIL AFTER HE HAD
SPOKEN TO HIS BABY'S MOTHER, THUS VIOLATING
HIS RIGHTS UNDER THE FIFTH AMENDMENT AND OUR
STATE CONSTITUTION.

The State argues that the trial court was correct in

initially ruling that both statements by Puryear were admissible

and it erroneously granted Puryear's motion for reconsideration.

With regard to Brown, the State argues that the trial court

erred in suppressing Brown's second statement.

V.

The Fifth Amendment of the United States Constitution

guarantees all persons with the privilege against self-

incrimination. This privilege applies to the states through the

Fourteenth Amendment. Moreover, in New Jersey, there is a

common law privilege against self-incrimination, which has been

11 A-2433-14T3
codified in statutes and rules of evidence. N.J.S.A. 2A:84A-19;

N.J.R.E. 503; State v. Reed, 133 N.J. 237, 250 (1993).

Accordingly, it has long been established that when a person is

taken into custody or otherwise deprived of his or her freedom

that person is entitled to certain warnings before he or she can

be questioned. Miranda, supra, 384 U.S. at 478-79, 86 S. Ct. at

1630, 16 L. Ed. 2d at 726.

Before any questioning, the defendant must be advised that

she or he has the right to remain silent, that anything she or

he says can be used against her or him in a court of law, that

she or he has the right to have an attorney present during

questioning, and that if she or he cannot afford an attorney one

will be appointed for her or him before any questioning if she

or he so desires. Id. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d

at 726. These warnings are commonly referred to as "Miranda

warnings."

After receiving Miranda warnings, a suspect may knowingly

and intelligently waive these rights and agree to answer

questions or make a statement. Ibid. The State, however, must

establish beyond a reasonable doubt that a waiver of the Miranda

rights was intelligent, voluntary and knowing. State v.

Nyhammer, 197 N.J. 383, 400-01, cert. denied, 558 U.S. 831, 130

12 A-2433-14T3
S. Ct. 65, 175 L. Ed. 2d 48 (2009); State v. Presha, 163 N.J.

304, 313 (2000); State v. Galloway, 133 N.J. 631, 654 (1993).

In determining whether a statement is voluntary, courts

consider the totality of the circumstances, including the

characteristics of the accused and the details of the questions.

State v. Knight, 183 N.J. 449, 462 (2005) (citing Galloway,

supra, 133 N.J. at 654). "Relevant factors include the

defendant's age, education, intelligence, advice concerning his

[or her] constitutional rights, [the] length of detention, and

the nature of the questioning." State v. Bey, 112 N.J. 123, 135

(1988) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93

S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973)).

If a suspect invokes his or her right to silence or legal

counsel, law enforcement must "scrupulously honor" that

assertion, and all questioning must cease. See Michigan v.

Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 326, 46 L. Ed. 2d

313, 321 (1975); see also Edwards v. Arizona, 451 U.S. 477, 484-

85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386 (1981)

(applying the same standard); State v. Alston, 204 N.J. 614, 624

(2011) (same).

When reviewing a trial court's decision on a motion to

suppress statements, appellate courts generally defer to the

fact-findings of the trial court when they are supported by

13 A-2433-14T3
sufficient credible evidence in the record. See Nyhammer,

supra, 197 N.J. at 409 (citing State v. Elders, 192 N.J. 224,

243-44 (2007)); see also State v. W.B., 205 N.J. 588, 603 n.4

(2011) ("As the finding of compliance with Miranda and

voluntariness turned on factual and credibility determinations,

we need only find sufficient credible evidence in the record to

sustain the trial judge's findings and conclusions." (citing

Elders, supra, 192 N.J. at 242-44)). Moreover, we defer to a

trial court judge's findings "'which are substantially

influenced by [the judge's] opportunity to hear and see the

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

court cannot enjoy.'" State v. Davila, 203 N.J. 97, 109-10

(2010) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)

(internal quotation marks omitted)). When a defendant's

statement is videotaped, however, and "the trial court's factual

findings are based only on its viewing of a recorded

interrogation that is equally available to the appellate court

. . . deference to the trial court's interpretation is not

required." State v. Diaz-Bridges, 208 N.J. 544, 566 (2012). We

review de novo the trial court's legal conclusions that flow

from established facts. See State v. Mann, 203 N.J. 328, 337

(2010).

14 A-2433-14T3
 VI.

A.

We first address the trial court's decision to grant

reconsideration. The State argues that the trial court erred in

changing its decision on a motion for reconsideration. We

reject that argument. The court has the discretion and right to

reconsider an interlocutory ruling at any time before the entry

of final judgment in "'the sound discretion of the [] court to

be exercised in the interests of justice.'" See State v.

Timmendequas, 161 N.J. 515, 554 (1999) (quoting Pressler,

Current N.J. Court Rules, comment 3 on R. 1:7-4 (1995), and

noting that there is not an explicit rule for motions for

reconsideration in criminal matters, but holding that such

motions are permitted in criminal matters), cert. denied, 534

U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). See also

State v. Campbell, 436 N.J. Super. 264, 273 (App. Div. 2014)

(explaining that "the court can even reconsider its previous

decision to admit the evidence, if subsequent developments

support such reconsideration" (citing Cummings v. Bahr, 295 N.J.

Super. 374, 384-88 (App. Div. 1996))).

Reconsideration is not to be granted lightly and the

grounds for reconsideration are generally limited. The proper

object of reconsideration is to correct a court's error or

15 A-2433-14T3
oversight. Palombi v. Palombi, 414 N.J. Super. 274, 288 (App.

Div. 2010). As we have explained, a motion for reconsideration

is

not appropriate merely because a litigant is
dissatisfied with a decision of the court or
wishes to reargue a motion, but "should be
utilized only for those cases which fall
into that narrow corridor in which either 1)
the [c]ourt has expressed its decision based
upon a palpably incorrect or irrational
basis, or 2) it is obvious that the [c]ourt
either did not consider, or failed to
appreciate the significance of probative,
competent evidence."

[Ibid. (quoting D'Atria v. D'Atria, 242 N.J.
Super. 392, 401 (Ch. Div. 1990)).]

See also R. 1:7-4(b) (governing reconsideration of final orders

or judgments); Cummings, supra, 295 N.J. Super. at 384

(explaining the grounds appropriate for reconsidering a final

judgment).

Here, the trial court candidly found that it had failed to

appreciate the significance of the explanation given by the

detective to Brown during his second interview concerning his

second Miranda warning; that second warning being that his

statements could be used against him in a court of law. The

trial court also found that it failed to appreciate the

significance of the introductory statement made by the State

Police detective to Puryear in his first interview advising

Puryear that he could not hurt himself by answering the

16 A-2433-14T3
detective's questions. Given the facts of these interviews, we

find no abuse of discretion and no error by the trial court in

its decision to grant reconsideration.

Indeed, it is entirely appropriate for a judge to

reconsider a prior ruling given the right set of circumstances.

Judges are not infallible. Judges who are willing to admit that

they overlooked competent evidence, or failed to appreciate such

evidence, should be commended because they are doing just what

good judges do in the very limited circumstances where

reconsideration is appropriate. Obviously, that is why there

are rules for reconsideration. See R. 1:7-4(b); R. 4:42-2; R.

4:49-2.

We also will address the court's ultimate substantive

decisions concerning the suppression or admission of each of the

statements given by defendants. Our grant of interlocutory

appeal included appeals from all aspects of the order on

reconsideration.

B.

We turn to the rulings on Brown's second statement. As

already noted, the trial court admitted Brown's first statement,

which principally concerned the Sussex County robbery. Brown

has pled guilty to the charges in Sussex County, and he has not

appealed the decision to admit his first statement. As

17 A-2433-14T3
previously pointed out, when the case is tried in Essex County

the trial judge will address whether and how much of the first

statement can be used under Rule 404(b).

The State appeals the decision to suppress Brown's second

statement, which was given to Essex County detectives and which

concerned the murder in Essex County. Specifically, the State

argues that when Brown's second interview is reviewed in full

context, Brown's inquiry about his second Miranda right - - that

his statements could be used in court - - was really a concern

that Brown did not want to testify in court.3 In other words,

the State argues Brown understood and knowingly waived all his

Miranda rights, including Miranda Right No. 2, but he made it

clear that he did not intend to testify at trial.

The State also argues that Brown had a prior criminal

record and, therefore, he already understood his Miranda rights

because of his prior interactions with the criminal justice

system. See Knight, supra, 183 N.J. at 463 (explaining that it

is relevant to consider a defendant's "previous encounters with

law enforcement" in determining the voluntariness of a

defendant's waiver of his Miranda rights). In addition, the

3
The trial court and the parties have referred to Miranda Right
No. 2. Though it might be more accurate to describe that as a
warning (that is, the statements can be used in court), for
consistency, we will also refer to it as Miranda Right No. 2.

18 A-2433-14T3
State argues that the trial court erred in relying on this

court's decision in State v. Pillar, 359 N.J. Super. 249, 268

(App. Div.), certif. denied, 177 N.J. 572 (2003).

In Pillar, the defendant's conviction was reversed "due to

the improper admission of a highly incriminating statement made

by [the] defendant to police at the time of his arrest." Id. at

257. The defendant in Pillar was charged with sexually abusing

a child. When questioned by law enforcement, the defendant

invoked his right to have an attorney before providing a

statement. Id. at 262. The defendant then stated that he

wanted to "say something 'off-the-record.'" Ibid. After the

detectives who were interviewing the defendant in Pillar agreed

to listen, the defendant confessed to fondling the minor victim.

This court held "that the statement, made immediately following

administration of Miranda warnings and after an assurance from

an officer that [the] defendant could make a statement 'off-the-

record,' was not only obtained in violation of Miranda but was

involuntary." Id. at 257.

The trial court correctly found that the detective's

explanation of the Miranda Right No. 2 was incorrect. While the

trial court acknowledged that Brown's request for clarification

may have stemmed from a concern about testifying at trial, the

court found that did not change that Brown was given an

19 A-2433-14T3
incorrect explanation of his Miranda Right No. 2. It is the

"responsibility of law-enforcement authorities to inform

defendants of their rights [] with the proper administration of

Miranda warnings." State v. Adams, 127 N.J. 438, 448 (1992)

(citing State v. McKnight, 52 N.J. 35, 47 (1968)). "A police

officer cannot directly contradict, out of one side of his

mouth, the Miranda warnings just given out of the other."

Pillar, supra, 359 N.J. Super. at 268. See also United States

v. Ramirez, 991 F. Supp. 2d 1258, 1269-70 (S.D. Fla. 2014)

(telling a defendant if he or she did not answer questions "it

would be worse" contradicted the Miranda safeguards).

The trial court also correctly found that the detective's

incorrect explanation of Brown's Miranda rights was not cured by

Brown's prior contact with the criminal justice system. Here,

the State showed only that Brown had been arrested in 2005 and

pled guilty in 2008, but did not offer proof that such prior

experience enabled him to understand his Miranda rights despite

the detective's incorrect explanation of his Miranda Right No.

2. Absent a more specific showing by the State, the trial court

did not err in making such a finding.

The focus of a Miranda analysis should be on whether the

defendant had a clear understanding and comprehension of his or

her Miranda rights based on the totality of the circumstances.

20 A-2433-14T3
Nyhammer, supra, 197 N.J. at 402. Moreover, as already pointed

out, the burden is on the State to prove beyond a reasonable

doubt that a defendant's waiver is knowing, voluntary, and

intelligent. The trial court here found that the State had not

shown beyond a reasonable doubt that Brown understood the nature

of his Miranda Right No. 2 and the consequences of waiving that

right. We defer to such "factual findings made by the trial

court[.]" Id. at 409.

Given the totality of the circumstances in this case, the

trial court's findings that the State failed to prove that Brown

completely understood all of his Miranda rights are adequately

supported by credible evidence in the record. Moreover, our

independent review of the video of Brown's second interview does

not lead us to a different conclusion. Consequently, the trial

court's decision to suppress Brown's second statement is

affirmed.

C.

We now review the rulings on Puryear's statements. The

State argues that we should reverse the trial court's ruling on

reconsideration, which held that Puryear's first statement

concerning the Sussex County robbery was inadmissible. Puryear

argues that the trial court correctly suppressed his first

statement, but erred in not suppressing his second statement

21 A-2433-14T3
concerning the Essex County murder. We find neither of these

arguments persuasive.

1.

On appeal, the State argues that "there is no credible

evidence that [Puryear] did not understand his Miranda rights."

The trial court, however, ultimately found otherwise. The court

focused on the instruction given by the State Police detective

that Puryear could not hurt himself and could only help himself

by providing a statement. The court found that instruction was

incorrect and directly contradicted the Miranda warning that

anything the suspect says can be used against him in a court of

law. The court then found that the detective's incorrect

explanation of the consequences of giving a statement was not

cured by Puryear's prior contact with the criminal justice

system. Thus, the court found that the State had not carried

its burden of proving that Puryear knowingly waived his Miranda

rights.

The factual findings by the trial court are supported by

sufficient credible evidence in the record. The State contends

that "while awkwardly phrased," the detective's instruction

simply informed defendant that the evidence against him was

overwhelming. That characterization of the instruction does not

change the fact that the instruction contradicted a key Miranda

22 A-2433-14T3
warning. Moreover, the instruction by the detective was not a

permissible interrogation technique. See Pillar, supra, 359

N.J. Super. at 268; cf. State v. Patton, 362 N.J. Super. 16, 31,

46 (App. Div.), certif. denied, 178 N.J. 35 (2003) (explaining

that New Jersey courts allow some "trickery" in interrogation

techniques, but do not allow fabrications of evidence). That

the State seeks to admit Puryear's statement against him shows

that Puryear could hurt himself by giving the statement.

The State also points out that in its initial decision

admitting Puryear's first statement, the trial court relied upon

State v. Miller, 76 N.J. 392 (1978), but on reconsideration it

did not explain how Miller was distinguishable. In Miller, the

Supreme Court held that it was not a violation of Miranda for a

police officer to "[a]ppeal[] to a person's sense of decency and

urg[e] him to tell the truth for his own sake." Miller, supra,

76 N.J. at 405. The Court went on to recognize, however, that

depending on the context, such techniques can move into a

"shadowy area." Id. at 403-04. Consequently, Miller is

distinguishable on the specific facts of this case.

Indeed, the Supreme Court has clarified the fact-sensitive

basis of motions to suppress because in another case, the Court

upheld the suppression of a statement because the defendant was

advised that by answering questions she "would actually benefit"

23 A-2433-14T3
herself. State ex rel. A.S., 203 N.J. 131, 151 (2010). In

A.S., the Court held that advice "contradicted the Miranda

warning provided to [the defendant]: that anything she said in

the interview could be used against her in a court of law."

Ibid. (citing Pillar, supra, 359 N.J. Super. at 268).

In short, it is well-established that the question of

whether Miranda rights are knowingly, intelligently and

voluntarily waived is a fact-specific analysis. Based on the

specific facts found by the trial court, we find no error in the

court's decision to suppress Puryear's first statement.

2.

We also find no error in the trial court's decision to

admit Puryear's second statement. The second statement was

given several hours after the first statement and primarily

focused on a different crime. Importantly, the second statement

was given to different law enforcement officers, who gave

Puryear fresh Miranda warnings and had Puryear execute a

separate written Miranda waiver form. Thus, the trial court

found that that second statement was given after Puryear

knowingly, voluntarily and intelligently waived his Miranda

rights.

Puryear argues that the second statement was contaminated

by the incorrect instruction given during the first statement.

24 A-2433-14T3
Puryear goes on to assert that his situation is analogous to an

impermissible "question first and warn later" technique. See

Missouri v. Seibert, 542 U.S. 600, 611-12, 124 S. Ct. 2601,

2610, 159 L. Ed. 2d 643, 655 (2004). In Seibert, the police

interrogators adopted an official policy of inducing confessions

prior to providing Miranda warnings and then eliciting the same

confession to the same crime. The United States Supreme Court

stated that such a procedure "render[ed] Miranda warnings

ineffective." Id. at 611, 124 S. Ct. at 2610, 159 L. Ed. 2d at

654. The facts in Seibert are clearly distinguishable.

Moreover, the trial court here found that there was a clear

break between the two separate interviews and that fresh Miranda

warnings cured any problem with the instruction given at the

beginning of the first interview. Again, those fact-findings

are supported by substantial credible evidence in the record.

Puryear also argues that because he repeatedly asked to

speak with the mother of his child, he was effectively

expressing a desire to remain silent. Puryear, however, told

the detectives that he wanted to tell the mother of his child

that she should move on without him. The trial court reviewed

the video of the interview and found that the request by Puryear

to speak with the mother of his child was not an invocation of

his right to remain silent. Our independent review of the

25 A-2433-14T3
recorded interview supports that same finding. In short,

Puryear's request to speak with the mother of his child was not

an invocation of his right to remain silent. See Diaz-Bridges,

supra, 208 N.J. at 567 (holding that "requests by an adult to

speak with someone other than an attorney . . . do not imply or

suggest that the individual desires to remain silent" (citing

State v. Martini, 131 N.J. 176, 228-32 (1993))).

VII.

In summary, we find no reversible error in the trial

court's decision to suppress Brown's second statement and

suppress Puryear's first statement. We also find no reversible

error in the trial court's decision to admit Puryear's second

statement.

Affirmed.

26 A-2433-14T3