RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2878-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
L.H.,
Defendant-Appellant.
_____________________________
Submitted April 4, 2017 – Decided August 2, 2017
Before Judges Fisher and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 12-05-1445.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alicia J. Hubbard, Assistant
Deputy Public Defender, of counsel and on the
brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Kayla
Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant L.H. appeals his conviction and sentence following
a guilty plea. More particularly, he appeals the court's denial
of his motions to suppress his statement to the police and to
suppress an out-of-court identification. We reverse in part and
vacate in part.
I.
During the summer of 2011, two women were sexually assaulted,
and another woman was the victim of an attempted sexual assault.
Defendant was taken into custody, interrogated about the assaults,
and provided a statement to police. In addition, one of the victims
made an out-of-court identification of defendant in a photo array
presented by the police.
A grand jury indicted defendant for two counts of first-
degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (counts one and six);
four counts of first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a)(3) (counts two, three, seven, and eight); three counts
of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1)
(counts four, nine, and twelve); two counts of third-degree
terroristic threats, N.J.S.A. 2C:12-3(a) (counts five and ten),
and first-degree attempted aggravated sexual assault, N.J.S.A.
2C:5-1 and 2C:14-2(a)(3) (count eleven). Following the indictment,
defendant moved to suppress the statements he made during the
2 A-2878-14T3
custodial interrogation and separately to suppress the victim's
out-of-court identification. The court denied defendant's motions.
Defendant subsequently pled guilty to two counts of first-
degree kidnapping, two counts of first-degree aggravated sexual
assault, and one count of first-degree attempted aggravated sexual
assault. He was sentenced to an aggregate twenty-year custodial
sentence subject to the requirements of the No Early Release Act,
N.J.S.A. 2C:43-7.2, parole supervision for life pursuant to
N.J.S.A. 2C:43-6.4, and Megan's Law, N.J.S.A. 2C:7-2. This appeal
followed.
On appeal, defendant makes the following arguments:
POINT I
BECAUSE THE POLICE OBTAINED A CONFESSION ONLY
AFTER LYING TO [DEFENDANT] BY SPECIFICALLY
PROMISING THAT ANY CONVICTION PREMISED UPON
THE CONFESSION WOULD NOT RESULT IN
INCARCERATION, THE STATEMENT MUST BE
SUPPRESSED.
POINT II
THE MOTION TO SUPPRESS THE OUT-OF-COURT
IDENTIFICATION SHOULD HAVE BEEN GRANTED
BECAUSE THE STATE'S FAILURE TO RECORD THE
NECESSARY DETAILS OF THE PHOTOGRAPHIC
IDENTIFICATION PROCEDURE WAS CONTRARY TO STATE
V. DELAGADO AND R. 3:11.
II.
Defendant first argues the court erred by denying his motion
to suppress his statement to police. He claims his statement was
3 A-2878-14T3
not given voluntarily because the police misled him during the
interrogation by advising him that he would receive counseling,
and would not be jailed, if he spoke with them. We agree.
When reviewing a trial court's denial of a motion to suppress
a defendant's statement, we must "engage in a 'searching and
critical' review of the record." State v. Maltese, 222 N.J. 525,
543 (2015) (quoting State v. Hreha, 217 N.J. 368, 381-82 (2014)),
cert. denied, ___ U.S. ___, 136 S. Ct. 1187, 194 L. Ed. 2d 241
(2016). We defer to the trial court's findings supported by
sufficient credible evidence in the record, particularly when they
are grounded in the judge's feel of the case and ability to assess
the witnesses' demeanor and credibility. State v. Robinson, 200
N.J. 1, 15 (2009); State v. Elders, 192 N.J. 224, 243-44 (2007).
This standard of review applies even where the motion court's
"factfindings [are] based on video or documentary evidence," such
as recordings of custodial interrogations by the police. State v.
S.S., __ N.J. __, __ (2017) (slip op. at 18, 24-25).
We will not reverse a motion court's findings of fact based
on its review of a recording of a custodial interrogation unless
the findings are clearly erroneous or mistaken. Id. at 16-17. We
review issues of law de novo. Id. at 25; State v. Shaw, 213 N.J.
398, 411 (2012).
4 A-2878-14T3
At a hearing challenging the admission of statements made
during a custodial interrogation, the "state must prove beyond a
reasonable doubt that a defendant's confession was voluntary and
was not made because the defendant's will was overborne." State
v. Knight, 183 N.J. 449, 462 (2005). The State must also prove
"the defendant was advised of his rights and knowingly, voluntarily
and intelligently waived them." State v. W.B., 205 N.J. 588, 602
n.3 (2011).
The determination of whether the State has satisfied its
burden of proving beyond a reasonable doubt a defendant's statement
was voluntary requires "a court to assess 'the totality of the
circumstances, including both the characteristics of the defendant
and the nature of the interrogation.'" Hreha, supra, 217 N.J. at
383 (quoting State v. Galloway, 133 N.J. 631, 654 (1993)). We must
determine "whether, under the totality of the circumstances, the
confession is 'the product of an essentially free and unconstrained
choice by its maker' or whether 'his will has been overborne and
his capacity for self-determination critically impaired.'" State
v. Pillar, 359 N.J. Super. 249, 271 (App. Div.) (quoting
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041,
2046-47, 36 L. Ed. 2d 854, 862 (1973)), certif. denied, 177 N.J.
572 (2003). The "factors relevant to that analysis include 'the
suspect's age, education and intelligence, advice concerning
5 A-2878-14T3
constitutional rights, length of detention, whether the
questioning was repeated and prolonged in nature, and whether
physical punishment and mental exhaustion were involved.'" Hreha,
supra, 217 N.J. at 383 (quoting Galloway, supra, 133 N.J. at 654).
The court should also consider defendant's prior encounters with
law enforcement and the period of time that elapsed between the
administration of Miranda warnings and defendant's confession.
Ibid.
During a custodial interrogation, an officer may use
"psychological coercion including trickery and deceit," without
violating a defendant's right against self-incrimination. State
v. Patton, 362 N.J. Super. 16, 29-31 (App. Div.), certif. denied,
178 N.J. 35 (2003)). "[M]isrepresentations by police officers to
the subject of an interrogation are relevant in analyzing the
totality of the circumstances," but "misrepresentations alone are
usually insufficient to justify a determination of involuntariness
or lack of knowledge." State v. Cooper, 151 N.J. 326, 355 (1997)
certif. denied, 528 U.S. 1084, 1205 S. Ct. 809, 145 L. Ed. 2d 681
(2000); accord Pillar, supra, 359 N.J. Super. at 269. "Moreover,
a misrepresentation by police does not render a confession or
waiver involuntary unless the misrepresentation actually induced
the confession." Pillar, supra, 359 N.J. Super. at 269 (quoting
Cooper, supra, 151 N.J. at 355).
6 A-2878-14T3
Likewise, an officer's promise of leniency is a factor in the
totality of circumstances analysis. Hreha, supra, 217 N.J. at 383.
However, "certain promises, if not kept, are so attractive that
they render a resulting confession involuntary." Pillar, supra,
359 N.J. Super. at 273 (quoting Streetman v. Lynaugh, 812 F.2d
950, 957 (5th Cir.), reh'g denied, 818 F.2d 865 (5th Cir. 1987)).
For example, "a promise of immunity in the form of an assurance
by police that a statement would not be used against an accused,
or would be considered confidential" renders a statement
involuntary. Id. at 269.
A court should consider the circumstances surrounding a
promise, including "the nature of the promise, the context in
which the promise was made, the characteristics of the individual
defendant, whether the defendant was informed of his rights, and
whether counsel was present." Hreha, supra, 217 N.J. at 383-84
(quoting Pillar, supra, 359 N.J. Super. at 271). "Those
considerations should be assessed qualitatively, not
quantitatively, and the presence of even one of those factors may
permit the conclusion that a confession was involuntary." Id. at
384. Whether a statement by a law enforcement officer constitutes
a promise must be viewed from the defendant's perspective. State
v. Fletcher, 380 N.J. Super. 80, 92 (App. Div. 2005).
7 A-2878-14T3
Defendant argues that his statements were not voluntary
because the police misled him by suggesting that if he spoke about
what occurred he would get counseling. Defendant also asserts the
police misled him by making "false promises of no jail time" if
he spoke to them. Defendant contends that as a result of the
officer's tactics, his will was overborne and his confession was
not voluntary. The record supports his arguments.
Throughout the interrogation the officers told defendant he
needed counseling to address issues he had with women and to
prevent the commission of future acts of sexual assault. They
consistently advised him that speaking with them would help
determine the counseling he needed and facilitate his receipt of
counseling. As correctly determined by the trial court, the
officer's statements about counseling alone did not render
defendant's confession involuntary under the totality of the
circumstances. See, e.g., State v. Miller, 76 N.J. 392, 398, 404
(1978) (finding officer's promise to "do all he could to help
defendant" if defendant spoke about the crimes "did not contribute
to an 'overbearing of his will'" under the totality of the
circumstances); Miller v. Fenton, 796 F.2d 598, 610, 612 (3d Cir.
1986) (finding under the same facts, the officer's promise of help
to defendant in obtaining treatment did not constitute a direct
8 A-2878-14T3
promise of leniency in the criminal proceedings and did not
overbear defendant's will).
The officers, however, did not limit their efforts to convince
defendant to speak with them to their statements about counseling.
The officers also promised defendant that if he spoke to them, he
would not go to jail. During an exchange with the officers
defendant said he was tired, and one of the officers asked if
defendant wanted something to eat or drink. In response, defendant
asked "Am I going to jail tonight? Is this going to be my last
meal or something like that?" The officer replied, "No, no, not
at all."
Defendant responded to the officer's statement that he would
not go to jail that evening, stating "That's what everybody says."
He then explained that "the last time something happened" and he
"told [the police] the truth," it "quickly happened," indicating
that he was immediately jailed. The officers understood the
statement as such. In response, one of the officers said "that's
not gonna happen - it's not gonna go down like that," thus assuring
defendant that unlike in his prior case where he told the truth
and was jailed, that would not happen here.
The other officer reinforced the false impression, stating
"I tell everybody who I interview in this room the same thing. .
. . I'm gonna lock you up, I'm gonna tell you I'm gonna lock you
9 A-2878-14T3
up." But the officer never contradicted the first officer's
statement that defendant would not be jailed if he confessed, and
during the interrogation did not tell defendant he would be "locked
up" until after defendant confessed to his involvement in the
sexual assaults.
Defendant also expressed hesitancy in responding to the
questions, stating he felt like he was "shooting [himself] in the
foot," and repeating that he would like counseling. The officers
agreed defendant needed counseling, and explained they needed to
obtain his statement about what occurred to "find out exactly
where [defendant was] as far as getting the help [he] need[ed]."
Defendant then asked, "The help I need is not sending me to jail
is it?" Again reinforcing that defendant would receive counseling
and not go to jail if he confessed, the officer responded, "Not
at all. Nobody gets rehabilitated in jail."
The officers' statements that information supplied by
defendant was required only to provide him with counseling, and
would not result in him being jailed, made a false promise. On
three separate occasions and in three different ways, the officers
assured defendant that if he spoke with them, he would not be put
in jail.
In State v. Puryear, 441 N.J. Super. 280, 288 (App. Div.
2015), we affirmed the trial court's suppression of a statement
10 A-2878-14T3
where a detective told the defendant, "[t]he 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." The detective then read the defendant his Miranda1
rights and the defendant agreed to speak with the officers. Id.
at 289. We found the officer's instruction "contradicted a key
Miranda warning" and "was not a permissible interrogation
technique" because the fact that the State sought to admit the
defendant's statement showed that the defendant "could hurt
himself by giving the statement." Id. at 298.
Here, the officers' representations that defendant would not
be jailed similarly misled defendant by suggesting that a
confession would only help him to obtain counseling, and would not
result in his incarceration. The representations were in direct
contravention of the same key Miranda warning at issue in Puryear:
that anything defendant said could be used against him. Id. at
298; see also Pillar, supra, 359 N.J. Super. at 268 ("A police
officer cannot directly contradict, out of one side of his mouth,
the Miranda warnings just given out of the other.").
In Fenton, supra, 796 F.2d at 610, the court noted that where
implicit or explicit promises of psychiatric help suggest a
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
11 A-2878-14T3
defendant will be treated rather than prosecuted, and thereby
trick the defendant into confessing, the confession may be
involuntary. Id. at 608. The court determined the officers'
promises of help in that case did not render the defendant's
confession involuntary because there was "no direct promise of []
leniency" and that "the only outright promise [] made was to get
[the defendant] help with his psychological problem." Id. at 610.
In contrast, here the officers' statements went well beyond
promises about counseling. The officers directly assured defendant
that if he spoke with them, he would not be jailed.
The record also shows that defendant was induced to confess
by the officers' promises. See Pillar, supra, 359 N.J. Super. at
269 ("a misrepresentation by police does not render a confession
or waiver involuntary unless the misrepresentation actually
induced the confession"); cf. Fenton, supra, 796 F.2d at 612
(finding the defendant made a statement based on a desire to come
clean rather than on a promise of leniency or psychiatric help).
The officers relied on defendant's desire for counseling as the
sole enticement for defendant to speak with them, and stated they
needed defendant's statement in order to assess his need for
"help." However, it was not until the officers assured defendant
that his statements would not result in incarceration, and that
12 A-2878-14T3
the "help" they discussed did not include jail, that defendant
admitted his involvement in the offenses.
We are not persuaded by the contention that because defendant
had a prior encounter with law enforcement, he therefore knew that
the statements he made could result in his incarceration. While
prior encounters with law enforcement are a factor in determining
the voluntariness of a waiver of Miranda rights, Hreha, supra, 217
N.J. at 383, here the officers advised defendant to ignore his
prior encounter with law enforcement by assuring him that situation
was "different." As noted, following the officers' initial
assurance defendant would not go to jail, defendant explained that
in a prior encounter with the police, he was quickly jailed after
providing a statement. In response, the officers assured defendant
"that's not gonna happen – it's not gonna go down like that."
Thus, the officers told defendant to disregard his prior encounter
with law enforcement.
We are therefore constrained to conclude that the court erred
by denying the motion to suppress defendant's statement. The court
engaged in a detailed analysis of the circumstances but overlooked
that the officers' false promise of no incarceration directly
negated the Miranda warnings and induced defendant to confess.
Like the officers' promise in Pillar, the assurances defendant
would not go to jail presented an overwhelming enticement to admit
13 A-2878-14T3
criminal activity without fear of incarceration, and "clearly had
the likelihood of stripping defendant of his 'capacity for self-
determination,'" Pillar, supra, 359 N.J. Super. at 272-73.
(quoting Schneckloth, supra, 412 U.S. at 225-26, 93 S. Ct. at
2046-47, 36 L. Ed. 2d at 862). It thereby requires the conclusion
that the State failed to establish defendant's statement was
voluntary beyond a reasonable doubt. See id. at 273.
III.
Defendant also contends the court erred by denying his motion
to suppress the out-of-court identification made by one of the
victims. Defendant argues the out-of-court identification, which
occurred during the fifteenth showing of various photo arrays to
the victim, should have been suppressed because the State failed
to comply with the recording requirements for out-of-court
identification procedures under Rule 3:112 and the principles
established in State v. Delgado, 188 N.J. 48 (2006).
In its denial of defendant's motion to suppress the out-of-
court identification, the court stated that determining the
2
We do not address defendant's contention the court should have
suppressed the out-of-court identification based on a failure to
comply with Rule 3:11 because the Rule was not in effect in 2011
when the identification procedures took place. Rule 3:11 did not
take effect until September 4, 2012.
14 A-2878-14T3
admissibility of an out-of-court identification required analysis
under a two-part test. Citing State v. Madison, 109 N.J. 223
(1988),3 the court found defendant must first demonstrate that the
identification procedure was impermissibly suggestive and then the
court will then consider the reliability of the identification.
The court noted that the second prong of the test required a
determination of whether the impermissible suggestiveness would
lead to a very substantial likelihood of irreparable
misidentification.
Applying the Madison standard,4 the court found that "the
composition of the [photo] arrays and manner in which they were
displayed [to the victim here] is not disputed." The court based
its findings on its review of the photo arrays and "information
packets" that "were completed and preserved along with the
photographs shown to the witness at the time [she] made her
identification as well as the prior times when she was shown the
photo arrays." Based on the court's review of the photographs and
3
In Madison, id. at 232, our Supreme Court adopted the standard
established by the United States Supreme Court in Manson v.
Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).
4
The out-of-court identification at issue here occurred prior to
our Supreme Court's decision in State v. Henderson, 208 N.J. 208
(2011), which established a new framework for determining the
admissibility of such identifications. The Court held that its
decision applied prospectively. Id. at 302.
15 A-2878-14T3
packets, it found that during each of the fifteen identification
procedures, the victim was sequentially shown the photographs in
the arrays by a detective not involved in the investigation, and
that the photographs were of individuals having similar physical
features. The court also found each information packet noted the
victim's demeanor when reviewing the photo arrays.
The court held that defendant failed to make any showing of
impermissible suggestiveness, and therefore was not entitled to a
Wade5 hearing on his suppression motion. The court, however, did
not consider whether the alleged failure to make a record of the
photo array identification procedures in accordance with Delgado
necessitated a hearing on defendant's motion.
In 2001, the New Jersey Attorney General's Office issued
guidelines "to ensure that identification procedures in this state
minimize the chance of misidentification of a suspect." Delgado,
supra, 188 N.J. at 61 (quoting Attorney General Guidelines for
Preparing and Conducting Photo and Live Lineup Identification
Procedures 1 (Apr. 18, 2001)). The guidelines directed an
administrator to:
1. Record both identification and non-
identification results in writing, including
the witness' own words regarding how sure he
or she is.
5
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
16 A-2878-14T3
2. Ensure that the results are signed and
dated by the witness.
3. Ensure that no materials indicating
previous identification results are visible to
the witness.
4. Ensure that the witness does not write on
or mark any materials that will be used in
other identification procedures.
[Ibid. (citing Attorney General Guidelines at
7).]
In Delgado, supra, 188 N.J. at 63, the Court exercised its
supervisory powers under Article VI, Section 2, Paragraph 3 of
the New Jersey Constitution and "require[d] that, as a condition
of the admissibility of an out-of-court identification, law
enforcement officers make a written record detailing the out-of-
court identification procedure, including the place where the
procedure was conducted, the dialogue between the witness and the
interlocutor, and the results." The Court stated, "[w]hen
feasible, a verbatim account of any exchange between the law
enforcement officer and witness should be reduced to writing," and
"[w]hen not feasible, a detailed summary of the identification
should be prepared." Ibid.
In State v. Smith, 436 N.J. Super. 556, 574 (App. Div. 2014),
we determined the officers failed to comply with Delgado where
their report about a show-up procedure mentioned only that an
17 A-2878-14T3
officer brought a victim to a suspect "to see if she could make a
positive [identification] on this possible suspect. . . . [and]
[the victim] related right away that he was the one who robbed
her." Id. at 568. We found "[t]he limited comments recorded by
police include [the victim's] identification, but omit what she
was told, her response, or a statement of the specific procedures
employed to effectuate the show-up." Ibid. We concluded that the
identification was not reliable under the Madison standard,
because the victim's account of the identification at the hearing,
and the show-up procedure itself, indicated suggestiveness. Id.
at 573.
Defendant contends the information packets concerning the
fifteen identification procedures do not include the dialogue
between the victim and police as required by Delgado. Although the
court's findings were based on the information packets, they were
not marked in evidence and are not part of the record on appeal.
The court's factual findings, however, suggest that the packets
did not include a verbatim account of the discussions between the
officer and the victim, any showing that a verbatim account was
not feasible, or if not feasible, a detailed account of the
identification. See Delgado, supra, 188 N.J. at 63. Thus, it
appears that as defendant contends, the police may not have
complied with Delgado's requirements. Indeed, the court did not
18 A-2878-14T3
make any findings that the information packets satisfied the
requirements in Delgado.
We are convinced the court erred by denying defendant's
request for a hearing without first considering and making findings
concerning law enforcement's compliance with Delgado's
requirements, including whether compliance was feasible. Ibid.
Compliance with the recordation requirements is an issue separate
from whether defendant made a showing of suggestiveness under the
Madison standard. The recording requirement "protects a
defendant's rights allowing examination of whether the procedure
was impermissibly suggestive." Smith, supra, 436 N.J. Super. at
569. The Delgado requirements were intended to permit a defendant
to obtain evidence of suggestiveness. Thus, it would be illogical
to conclude that a defendant's failure to show suggestiveness
precludes a hearing on whether the Delgado requirements were met.
We therefore vacate the court's denial of defendant's motion
to suppress the out-of-court identification. We remand for the
court to determine whether the police complied with Delgado's
requirements, including whether it was feasible for the police to
have done so. Any fact issues concerning compliance shall be
resolved at an evidentiary hearing. If it is determined there was
a lack of compliance, the court shall conduct such hearings it
deems necessary to determine the admissibility of the out-of-court
19 A-2878-14T3
identification. See, e.g., id. at 568-73 (finding the evidence
presented at an evidentiary hearing showed the identification was
unreliable where the police recordation of an identification
procedure was deficient under Delgado).
We add that a failure to properly record the identification
procedures as required under Delgado does not necessarily require
the court to suppress the identification. See Delgado, supra, 188
N.J. at 64-65 (rejecting defendant's claim that the failure to
make a detailed record of the out-of-court identification
procedures denied him a fair trial because the defendant learned
the details of every identification and nonidentification through
police reports, a Wade hearing, and the witness's testimony at
trial); State v. Joseph, 426 N.J. Super. 204, 223-24 (App. Div.
2012) (stating that the failure to retain photos from an array
"does not automatically result in the suppression of an out-of-
court identification," but rather, "if not explained, should be
weighed in deciding upon the probative value of the
identification") (quoting State v. Janowski, 375 N.J. Super. 1, 9
(App. Div. 2005)).
Reversed in part, vacated in part. Remanded for further
proceedings in accordance with this opinion. We do not retain
jurisdiction.
20 A-2878-14T3