RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5706-14T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
S.S.,
Defendant-Respondent.
Argued December 9, 2015 – Decided March 14, 2016
Before Judges Alvarez and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 09-12-2040.
John R. Mulkeen, Assistant Prosecutor,
argued the cause for appellant (Esther
Suarez, Hudson County Prosecutor, attorney;
Mr. Mulkeen, on the brief).
Joseph J. Russo, Deputy Public Defender,
argued the cause for respondent (Joseph E.
Krakora, Public Defender, attorney; Mr.
Russo, of counsel and on the brief).
PER CURIAM
By leave granted, the State appeals a June 25, 2015 Law
Division order suppressing recorded inculpatory statements. We
now reverse.
Defendant's prior conviction on a charge of first-degree
aggravated assault, N.J.S.A. 2C:14-2(a), and second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a),1 was
previously reversed on appeal. State v. S.S., No. A-2007-11
(App. Div. Aug. 4, 2014). The admission of defendant's
videotaped confession was not challenged prior to the earlier
trial or during that first appeal process.
Defendant's charges arose from his daughter's statements to
a babysitter that her father placed his penis in her mouth. At
the time of the events, she was four years old.
Hudson County Prosecutor's Special Victims Unit (SVU)
Sergeant Kenneth Kolich and Detective Polly Hans video recorded
defendant's statements. Defendant's interview was initially
conducted by Hans alone. After being read his Miranda2 rights,
he signed a standard waiver form. Approximately forty-eight
minutes into the interrogation, Hans was joined by Kolich.
To that point, Hans had primarily obtained background
information, and had just begun asking defendant questions
regarding the alleged assault. Defendant repeatedly denied that
he had done anything wrong or anything similar to his daughter's
description of the event. He also denied having any idea why
1 Prior to trial, the State dismissed the charge of second-degree
sexual assault by contact, N.J.S.A. 2C:14-2(b), and fourth-
degree child abuse, N.J.S.A. 9:6-1 and 9:6-3. The State
simultaneously amended the endangering count to conform to the
remaining alleged acts of aggravated sexual assault.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
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his daughter would have made up the story. The denials were
accompanied by lengthy silences in response to the officers'
questioning. At one point, defendant asked to use the bathroom.
Kolich responded by asking defendant to hold on for a "couple of
minutes."
At another point, defendant's cell phone rang. Kolich took
it from him before he could answer. Kolich turned, once he had
the cell phone, and placed it behind him on a table to
physically prevent defendant from reaching it.
Kolich asked a question implying that defendant was
fighting his guilt, "It's your daughter. Look what you and your
wife are doing to her. Is that how you want her to remember
you? [Defendant], there's something inside you [sic] want to
say, and you're fighting it. You're fighting it." Defendant
responded, "No, that's all I got to say. That's it." The
interrogation continued. Later, Kolich again asked defendant,
"Why, with all the people in the world, would your daughter pick
on you and say you did this if it wasn't true?" Defendant
responded "I don't know. That's all I can say."
Soon thereafter, Kolich explained that he had other people
that he needed to speak with and that defendant could either
wait in a holding cell or wait with another detective.
After a break in the video, the interrogation resumed after
a forty-nine minute interval. Hans recommenced interrogation,
3 A-5706-14T3
Okay. As you know, everything still stands.
You're still under oath. You know, you're
aware, you know, of your rights. Even
though you left the room, we're still, you
know continuing from where we left off.
Before I start talking, is there anything –
you know, we left you. We told you to think
about things. Is there anything that you
thought about? Anything you want to tell us?
To which, defendant responded, "No." Immediately thereafter,
Kolich said, "Let's talk about Saturday afternoon." Moments
later, defendant asked if Hans could leave the room so he could
speak to Kolich alone. Defendant then spontaneously said that
he had placed his penis in his then four-year-old daughter's
mouth for approximately five seconds.
Prior to trial, defendant filed a motion to suppress his
videotaped confession, alleging that his inculpatory statements
were obtained after he invoked his right to remain silent.
After the hearing and oral argument by counsel, the judge
rendered her decision from the bench. She said that it was
based on "only the factual circumstances that took place within
the interview . . . ." The judge then continued:
[A]pproximately [forty] minutes into the
interview the sergeant entered the room and
began to ask the defendant substantive
questions related to the alleged crime
itself.
The defendant repeatedly denied the
allegations, shook his head and made
statements to the effect of denying the
allegations until he began to make
4 A-5706-14T3
inculpatory statements toward the end of the
interrogation. At approximately one hour
into the interview the sergeant asked
[defendant], there's something inside you,
you want to say and you're fighting it, to
which the defendant responded, no. That's
all I got to say. That's it. . . .
The sergeant proceeds to continue to
ask the defendant questions. The defendant
attempts to remain silent. The interview
then paused for [forty-nine] minutes and
when the interview resumed the defendant
once again answered no when asked if there
was anything that you want to tell us. The
defendant was not re-Mirandized.
. . . .
[T]he defendant clearly indicated his
intention to end the interrogation when he
stated, no, that's all I got to say. That's
it. The defendant's intention[s] were made
more obvious in his subsequent decision to
remain silent to the sergeant's questioning.
Furthermore, the defendant indicated his
unwillingness to resume the interrogation
after the [forty-nine]-minute break when he
answered no to the sergeant's question as to
whether there was anything that you want to
tell us.
Even if it were merely ambiguous to the
interrogators what the defendant's
intentions were, the onus was on the
detectives to clarify those
intentions. . . .
The defendant's right to cut off
questioning was not respected here. . . .
. . . .
[A]ny statement made after the
defendant stated, no, that's all I got to
say, is to be suppressed because the
5 A-5706-14T3
subsequent interrogation violates the
defendant's constitutional right to silence.
[I]t is the statement of that's all I
have to say that constitutes a clear
invocation of his rights. The [c]ourt finds
that the defendant's previous headshaking
and responses prior to the statement were
not . . . attempts to invoke his right to
remain silent but rather answers and non-
verbal responses or reactions to the
questions asked.
. . . .
[T]he defendant's motion is
granted . . . .
On appeal, the State raises the following point of error:
POINT I
THE TRIAL COURT ERRED IN CONCLUDING THAT
DEFENDANT INVOKED HIS RIGHT TO REMAIN
SILENT.
a.) The Appellate Division Can Perform a De
Novo Review of Whether the Defendant
Invoked His Right to Remain Silent.
We review orders granting motions to suppress evidence
accepting the trial court's findings of fact that are supported
by sufficient credible evidence in the record. State v. Gamble,
218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224,
243 (2007)). In the usual case, we accept those findings
because they "are substantially influenced by [an] opportunity
to hear and see the witnesses and to have the 'feel' of the
case, which a reviewing court cannot enjoy." Id. at 424-25
(alteration in original) (quoting State v. Johnson, 42 N.J. 146,
161 (1964)). We disturb a trial court's findings of fact only
6 A-5706-14T3
when "so clearly mistaken 'that the interests of justice demand
intervention and correction.'" Elders, supra, 192 N.J. at 244
(quoting Johnson, supra, 42 N.J. at 162). Our review of a trial
court's legal conclusions is plenary. State v. Handy, 412 N.J.
Super. 492, 498 (App. Div. 2010), aff’d, 206 N.J. 39 (2011)
(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
However, when "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).
In determining whether the State has met its burden to
establish a knowing, intelligent, and voluntary waiver, we look
to "the totality of the circumstances, including both the
characteristics of the defendant and the nature of the
interrogation." State v. Faucett, 439 N.J. Super. 241, 257
(App. Div.), certif. denied, 221 N.J. 492 (2015). It is well-
established that once a suspect indicates "he wishes to remain
silent, the interrogation must cease." Miranda, supra, 384 U.S.
at 473-74, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723. When
confronted with more ambiguous indications, officers are
expected to make further "inquir[ies] in order to clarify the
suspect's intent." Diaz-Bridges, supra, 208 N.J. at 569. In
7 A-5706-14T3
these cases, the fact-sensitive inquiry regarding the totality
of the circumstances is of particular importance. Id. at 565.
In State v. Johnson, the Supreme Court indicated that a
defendant who has "'nothing else to say,' or who '[does] not
want to talk about [the crime]'" has invoked the right to remain
silent. 120 N.J. 263, 281 (1990) (citation omitted) (alterations
in original). Furthermore, silence itself may be sufficient to
invoke the right. Id. at 281-82. Statements conveying an
unwillingness to respond to any questions also may be sufficient
to invoke the right to remain silent. Id. at 285. Once the
right has been invoked, it must be scrupulously honored. Ibid.
"Where the invocation of the right to remain silent is followed
by no interruption in questioning, and where the interrogation
continues as if nothing had happened, the right is not
scrupulously honored." Id. at 282.
If considered exclusively from the written statement, at a
minimum, defendant's words, in accordance with Johnson,
warranted exploration by the officers. See also Diaz-Bridges,
supra, 208 N.J. at 569. That defendant was denied the
opportunity to use the restroom for a few minutes after his
request also reads as coercive, in violation of the principles
embodied in Miranda and its progeny to the effect that
statements should be admitted only if voluntary. See Miranda,
supra, 384 U.S. at 462, 86 S. Ct. at 1621, 16 L. Ed. 2d at 717
8 A-5706-14T3
("But a confession obtained by compulsion must be excluded
whatever may have been the character of the compulsion
. . . .").
But defendant's words and silences, when witnessed on the
videotape, did not require exploration by the officers, or that
the questioning stop. Respectfully, we disagree with the trial
judge's interpretation of defendant's responses.
The interview was conducted while defendant was seated in
an upholstered chair, directly facing Hans, seated in a similar
chair some three or four feet away. When Kolich entered the
room, he seated himself on defendant's left side, close by in a
wooden chair he turned towards defendant and away from a table.
He was closer to defendant than Hans.
Defendant, who appeared composed, spoke in quiet tones.
His demeanor, until he confessed, was tense but calm. It was
not until the point on the tape when he confessed that he showed
emotion or wept.
When defendant said "that's all I got to say[,]" "that's
all I can say[,]" and the word "no[,]" it was in the context
that he had no explanation for his daughter's detailed false
claim against him. It was not an equivocal request that the
interrogation cease. In the most literal sense, defendant was
denying that he had anything more to say about his daughter's
accusation, not that he wanted to stop talking to the officers.
9 A-5706-14T3
During the interrogation, both Hans and Kolich repeatedly
asked defendant if he and his wife had his daughter's best
interests at heart, if he understood that she could be harmed if
labeled a liar, and if he had any explanation for her statement.
Their strategy was to repeatedly ask defendant if he could think
of a reason this false accusation was made.
The first alleged invocation occurred when defendant said
"No, that's all I got to say. That's it." That response came
after Hans and Kolich said the following:
Detective Hans: No, she didn't do
nothing wrong.
Sergeant Kolich: You're absolutely right.
She didn't do anything wrong.
Detective Hans: But –
Sergeant Kolich: She told us the truth
Detective Hans: But she's going to feel
that way if she's being told that the truth
is something she has to now keep a secret.
Sergeant Kolich: It's your daughter.
Look what you and your wife are doing to
her. Is that how you want her to remember
you? [Defendant], there's something inside
you you want to say, and you're
fighting it. You're fighting it[.]
It is clear from defendant's level unchanged tone when he
responded that he meant he had no explanation for his daughter's
conduct. He had said what he was going to say about the
subject.
10 A-5706-14T3
The next alleged invocation occurred as follows:
Sergeant Kolich: We're just looking for
the truth here, [defendant]. Why, with all
the people in the world, would your daughter
pick on you and say you did this if it
wasn't true?
[Defendant]: I don't know. That's
all I can say.
When those words are heard on the videotape, it appears to us
from defendant's even tone of voice that he means that he is at
a loss for words to explain the reason his daughter would have
accused him. It simply does not, in context or in tone, sound
like an invocation of the right to silence.
Finally, the third alleged invocation occurred as follows:
Detective Hans: Okay. As you know,
everything still stands. You're still under
oath. You know, you're aware, you know, of
your rights. Even though you left the room,
we're still, you know, continuing from where
we left off. Before I start talking, is
there anything – you know, we left you. We
told you to think about things. Is there
anything that you thought about? Anything
you want to tell us?
[Defendant]: No.
Again, from defendant's tone and in the context of the flow
of the conversation, it seems clear that defendant was only
denying culpability, not that he was expressing the desire to
stop the questioning.
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Clearly, the State bears the burden of proving: "beyond a
reasonable doubt that the suspect's waiver was knowing,
intelligent, and voluntary in light of all the circumstances."
State v. Patton, 362 N.J. Super. 16, 42 (App. Div.) (quoting
State v. Presha, 163 N.J. 304, 313 (2000)), certif. denied, 178
N.J. 35 (2003). From our independent review of the video, we
are satisfied that the State has borne its burden of proving
beyond a reasonable doubt that defendant's initial waiver was
never revoked.
Reversed.
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