NOT FOR PUBLICATION WITHOUT THE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
January 4, 2021
v. APPELLATE DIVISION
ANTHONY SIMS, JR.,
Defendant-Appellant.
_______________________
Submitted October 19, 2020 – Decided January 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).
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.
1
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 Miranda1 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:
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.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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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.
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
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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.
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,
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"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 .2
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.3
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.
2
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.
3
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."
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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.
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
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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 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
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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 for assault. 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
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.
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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.
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.
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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 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).
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Before trial, defendant filed several motions, including one under Miranda
to suppress his custodial statement to police and another under
Wade/Henderson4 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 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
4
United States v. Wade, 388 U.S. 218 (1976); State v. Henderson, 208 N.J. 208
(2011).
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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
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
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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 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
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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."
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
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14
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
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
A-2641-17T2
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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 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,
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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.
[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
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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.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
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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
law . . . other than imposing the basic requirement to
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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
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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, not only did
the interrogating officers not tell defendant the charges for which he was
arrested, but they admitted to intentionally misleading defendant by advising
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him he was arrested for assault—a much lesser offense than attempted murder.
That untruthful information did not satisfy the 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
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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
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. 5 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.
5
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
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 entitled to the same information as those defendants simply because he was
arrested without a warrant would contravene both of the Court's holdings.6
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
6
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
assertion. All of this evidence obtained through the interrogation "could be
fairly characterized as inculpatory." Vincenty, 237 N.J. at 136.
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
A-2641-17T2
25
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
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
A-2641-17T2
26
would have been outside the scope of permissible cross-examination under Rule
611.
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,
A-2641-17T2
27
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.
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
A-2641-17T2
28
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
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
A-2641-17T2
29
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
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.
A-2641-17T2
30
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.
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-
A-2641-17T2
31
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)
(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,
A-2641-17T2
32
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
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
A-2641-17T2
33
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.]
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 presence of
the jury to determine whether her police statement was reliable and admissible.
Ibid.
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
A-2641-17T2
34
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
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).]
A-2641-17T2
35
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
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 . . .
A-2641-17T2
36
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
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
A-2641-17T2
37
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
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
A-2641-17T2
38
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.
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.
I concur with my colleagues that the statement taken from defendant in
this case must be suppressed. I write separately to explain why I believe the per
se rule contemplated in section II of the majority opinion, which would require
police in some cases to advise a custodial interrogee of charges not yet filed, has
the potential to introduce uncertainty to the administration of Miranda7
warnings.
Applying existing legal principles, the custodial interrogation in this case
was conducted unlawfully. The police department and the prosecutor's office
jointly investigated a shooting incident in which the victim was seriously
injured. The prosecutor's office, which bears ultimate responsibility for making
law enforcement charging decisions, participated in—if not oversaw—the
investigation, as shown by the active role played by a prosecutor's detective.
Detectives conducted a three-hour hospital-bed interview of the victim, which
provided ample probable cause to believe defendant had committed attempted
murder. The ensuing warrantless arrest was planned, and the detectives who
made the arrest and conducted the custodial interrogation declined initially to
7
Miranda v. Arizona, 384 U.S. 436 (1966).
answer defendant's direct question as to why he was arrested, ostensibly to
obtain his waiver of Miranda rights before he realized that he would be facing a
charge of attempted murder. As the majority opinion notes, the interrogating
officers admitted they intentionally misled defendant by advising him he was
arrested for assault, which is a far less serious offense than attempted murder.
State v. Sims, __ N.J. Super. __, __ (App. Div. 2020) (slip op. at 21).
Considering the totality of these circumstances, I concur with the majority
that the detectives' interrogation stratagem prevented defendant from making an
informed decision whether to waive his Miranda rights. There should be no
judicial tolerance for interrogation tactics that affirmatively mislead an arrestee
as to his legal status. However, I urge caution in creating a new per se Miranda
rule that requires police to advise custodial interrogees of the offense(s) for
which they were arrested when a complaint-warrant or arrest warrant has not
been issued.
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).
A-2641-17T2
2
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 would change current law and longstanding police
interrogation practices. Until now, police have not been required to inform a
custodial interrogee as to the offense(s) for which he was arrested unles s 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
A-2641-17T2
3
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 (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
A-2641-17T2
4
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, 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
A-2641-17T2
5
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. 8
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 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.
8
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
6
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), conspiracy, N.J.S.A.
2C:5-2, or even—in rare cases—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
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arrestee's culpable mental state to decide at the outset of the interro gation
whether the defendant committed the specific-intent crime of attempted murder. 9
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 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
9
There is no such ambiguity in this case given the execution-style nature of the
shooting and the life-threatening injuries that were suffered. Furthermore, the
arresting detectives had already determined the retaliatory motivation for the
shooting.
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detention hearing. 10 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 untested ground, 11 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
10
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).
11
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 embrace
the new rule announced today.
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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
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 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
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10
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. 12 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 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
12
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.
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405 (explaining that police are not required to inform persons of their "suspect
status" because "suspect 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-
fold13 warnings/advisements are essentially scripted. They are not tailored based
on subjective determinations made by interrogating officers. For the foregoing
reasons, the majority's extension of the A.G.D./Vincenty rule might introduce
13
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)
"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).]
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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 knows
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 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.
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