STATE OF NEW JERSEY VS. TERREL MANN(08-09-0837, 11-04-0359 AND 12-03-0271, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4091-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERREL MANN a/k/a TERRELL
MANN and TYRELL MANN,

Defendant-Appellant.
________________________________

Argued May 8, 2017 – Decided May 26, 2017

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment Nos.
08-09-0837, 11-04-0359 and 12-03-0271.

Margaret McLane, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Ms. McLane, of counsel and on the briefs).

Timothy F. Trainor, Assistant Prosecutor,
argued the cause for respondent (Angelo J.
Onofri, Mercer County Prosecutor, attorney;
Mr. Trainor, of counsel and on the brief).

PER CURIAM

Defendant Terrel Mann, who pled guilty to second-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), appeals the
trial court's denial of his motion to suppress incriminating

statements he provided to police after witnessing the fatal

shooting of his brother by third parties. We affirm.

I.

The record from the trial court's suppression hearing

presents the following salient chronology of events.

A.

On June 16, 2011, defendant's brother was shot in the neck

by an unidentified group of assailants in the backyard of a

residence in Trenton. Defendant was present at the scene and saw

his brother fall to the ground after the gunshots hit him.

Defendant removed his shirt to apply pressure to his brother's

gunshot wound, and dragged his brother to the front of the

residence. The brother ultimately died from the gunshot wounds.

Several Trenton police officers arrived at the scene at about

1:30 p.m. The first to arrive was Officer Tara Dzurkoc. According

to Officer Dzurkoc's testimony at the suppression hearing, when

she arrived, she saw "a black male laying on the ground face up

and a woman . . . holding a bloody white t-shirt to his neck."

The victim was in front of a home on that street, "on the sidewalk

area[.]" Dzurkoc recalled that there were "a ton of people"

gathered around the scene.

2 A-4091-14T3
 Dzurkoc testified that, while waiting for an ambulance, she

noticed defendant in the crowd. Defendant "stood out" to her

because "he had no shirt on, he had gray shorts on, and he was

covered in blood."

Dzurkoc further testified that defendant, who was "very

upset," said, "I saw who did it, and they're going to get it."

She observed that defendant was "pacing in the street" and

"cursing." Dzurkoc testified that she "attempted" to calm him

down, but defendant was "just kind of blowing [her] off[.]"

Defendant did not ask for medical treatment, nor did anyone meet

with him "to determine if he was in shock[.]"

According to Dzurkoc, she asked defendant to "stay to the

side" so she could "keep an eye on him because a detective would

want to talk to him." Dzurkoc did not stay with defendant. Nor

was defendant put in handcuffs or placed under arrest.

Dzurkoc testified that, at that point, she "felt bad for him

and he was just a witness." She "didn't tell him to stay

specifically or to leave." According to Dzurkoc, defendant could

have left "if he wanted to[,]" and he was "detained by him just

standing where I knew he was until a detective came."

Once another detective arrived, that detective spoke to

defendant and transported him to the police station in a police

vehicle. Defendant sat without handcuffs in the backseat of the

3 A-4091-14T3
vehicle with his girlfriend, Deanna Mott, whom he wanted to come

with him to the station. Dzurkoc testified that such a situation

is "[d]efinitely not" how police customarily transport someone

"under arrest or in custody[.]" In such instances, the suspect

normally would be handcuffed and searched.

Another Trenton Police Officer, Yusaf Addar, testified that,

when he arrived at the scene, a detective called him over and told

him that there was "a witness that needed to be transported to

[police] headquarters." Addar recalled that defendant and his

girlfriend were already in the police vehicle, so Addar drove them

to the station. According to Addar, both defendant and his

girlfriend were "a little agitated" because "they wanted to know

what was going on with the victim at the time." Defendant was

not, however, "yelling or screaming or acting out like he was

being violent."

Addar testified that defendant did not ask at any time to get

out of the car, nor was he handcuffed. Mott also had her cellphone

with her while in the vehicle. According to Addar, the trip from

the scene to the station took "[m]aybe two minutes if that."

When they arrived at the station, Addar took defendant and

Mott "through the back entrance where police officers enter" and

into what is known as the robbery section of the station, an area

where police only bring "witnesses or suspects." Addar waited

4 A-4091-14T3
with them for ten or twenty minutes, because "the area they were

in they're really not supposed to be back there by themselves

unless they're in the company of a detective or an officer." Addar

testified that while they waited, Mott used her cell phone "a

lot."

Addar later collected and photographed defendant's clothing,

which he did by bringing defendant into an interview room "for

privacy[,]" although the door remained open. Addar collected

defendant's pants and sneakers, and gave him a "paper suit" to

wear. Defendant was "really calm and really cooperative throughout

the whole process[,]" and according to Addar, was treated "like a

witness" during their interactions.

James Francis, a Trenton Detective Sergeant, also testified

on behalf of the State. Francis had previously worked in the

homicide unit, and he responded to the shooting scene. Detective

Edgar Rios was assigned to work on the investigation with Francis.1

While searching the area, Francis located the "primary crime

scene[,]" at which he found the victim's clothes and "numerous

shell casings[.]"

According to Francis, after searching the crime scene, he

returned to the station to interview witnesses. He first

1
Rios was injured while on duty in 2013, and did not testify at
the hearing.

5 A-4091-14T3
interviewed Mott at Rios's desk, located "in the rear of the

homicide office, right at the window." While Francis interviewed

Mott, defendant was left in the "waiting area" with no "police

guard."

Francis testified that the conversation with Mott was "very

low key[,]" as he and Rios "tried to ascertain any information

that she had regarding the incident." The interview took about

an hour. Mott did not give a formal statement at the time, because

she had to leave due to "childcare issues[.]" She returned another

day and gave a formal statement.

Francis recounted that he and Rios drove Mott home after her

interview, prior to interviewing defendant. After taking Mott

home, Francis and Rios "reexamined the crime scene[,]" which was

"two or three row homes away" from Mott's home. That took "[u]nder

half an hour." According to Francis, they were gone for no more

than one hour, because the crime scene was located approximately

five minutes by car from the police station.

Upon returning to the station, Francis and Rios interviewed

defendant at the same location they had questioned Mott. Francis

testified that, generally, if a person is considered a suspect or

in custody, he or she is interviewed in "one of three video

6 A-4091-14T3
interview rooms." Francis did not read defendant his Miranda2

rights prior to that interview, because the police "don't Mirandize

witnesses." At that time, Francis and Rios did not have "any

idea" that defendant was potentially more than a witness.

Francis explained that it was "normal" for detectives to take

evidence from witnesses, such as defendant's clothing in this

case. Francis gave defendant "a light jacket that was hanging up

in the homicide conference room" to wear over the paper suit,

because "[t]he air conditioner was on, [and] it was pretty cold."

According to Francis, defendant told them during the

interview that, prior to the shooting, he ran into a person with

whom he had gotten into a fight earlier in the week. When they

ran into one another, they got into another fight, which Mott

eventually broke up. Francis further testified that defendant

stated that, as he and his group started walking away, the other

group "started running towards them" so he and Mott went inside

her house. Defendant then called his brother, who came to the

area with his cousin. The three men then "went walking around

looking for the guys" that defendant had been fighting earlier.

They did not find the group, and as they were walking back towards

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

7 A-4091-14T3
Mott's house, defendant heard "multiple gunshots coming from the

alleyway" where his brother was walking.

Francis testified that defendant stated he then ran down the

alley and saw his brother "on the ground firing at a group of men"

in the alley. Defendant then "grabbed the gun and started firing

at the same boys." Defendant could see that his brother was shot

in the neck at the time.

As recounted by Francis, defendant then told the detectives

that, once the other group ran away, defendant "drag[ged]" his

brother out of the alley to the front of the house. Francis did

not believe defendant's account, because "it just didn't make

sense that his brother could still be returning fire with

conceivably a life-threatening injury to his neck where blood was

gushing out." Francis also did not believe that defendant "called

his brother out to basically help him with a fight and then he

lets him walk down an alleyway . . . by himself without backing

him up or assisting him in any way."

Francis told defendant that his "story" was "not really adding

up to the physical evidence[.]" According to Francis, defendant

then "displayed like a little bit of defeat[,] maybe with his

shoulder slouching and said okay I was – I was firing the gun."

At that point, and after consulting with an assistant prosecutor,

Francis read defendant his Miranda rights before asking any

8 A-4091-14T3
additional questions. Francis testified that defendant did not

make "any indication" that he wanted a lawyer or wanted to stop

the conversation.

Francis and Rios then took defendant to an interview room,

and began recording the interview. Defendant was not handcuffed

at that point.

According to the transcript of that interview, Rios read

defendant his Miranda rights, and then had defendant read them

back before signing. At one point, Rios defined the term

"coercion" for defendant, and then ensured that defendant

understood its meaning by having defendant explain it back to the

detectives.

After waiving his Miranda rights, defendant relayed to the

detectives how the incident began with a fight between him and a

member of the other group. Defendant stated in that interview

that he called his brother for help, who showed up thereafter.

According to defendant, his brother gave him a gun to "hold" prior

to confronting the other group. Defendant then explained to the

detectives how the altercation between the two groups ended with

gunshots.

B.

Mott, defendant's girlfriend, testified on his behalf at the

suppression hearing. As she described it, once the police arrived,

9 A-4091-14T3
they put defendant in the police vehicle. Mott went over to the

vehicle to "try[] to calm him down and figure out why he was being

put in the police car." According to Mott, the police asked her

to get in the car with defendant to "calm him down[.]"

Mott testified that one police officer then told another to

"take [them] down to the police station." Mott further testified

that defendant said "he didn't want to go, but the cop said to him

that they probably just want to talk to him when he get[s] down

there." Mott asserted on cross-examination that she did not have

her phone with her when they went to the station.

According to Mott, the police took defendant into a different

room when they arrived at the station. Mott testified that, from

where she was sitting, she could hear the police "yelling at

[defendant] telling him that his story was bull[.]" Mott also

testified that defendant "tried to talk to [her] through the door

and the cops removed [her] from right there" because she "couldn't

talk to him[.]" Defendant allegedly "asked to leave to go" to the

hospital as well. Mott further asserted on cross-examination that

the police "told [defendant] that he couldn't leave until the gun

appeared."

Mott testified that Officer Rios later came to her and told

her she "was lying to him about who had the gun." According to

Mott, however, she had not previously spoken to the police, so she

10 A-4091-14T3
was "confused" by that assertion. Mott further testified that she

did not leave the station that day until "almost ten o'clock that

night."

Lastly, defendant testified on his own behalf at the hearing.

He asserted that he could not remember his initial conversation

with the police at the scene of the shooting, because he was

"stressed out and in shock[.]" According to defendant, he was "in

the stage of blacking out" when an officer told him "to get in the

car until you calm down." Defendant allegedly told them "no, I

don't want to get in the car[,]" at which point the officers "put

[him] in the car and from there [he] was still crying, yelling."

Defendant testified that, once he was taken to the station,

he did not feel free to leave. However, he acknowledged that he

did not ask to leave.

Defendant further testified that, while being questioned, the

officers told him that his story was "bullshit." He claimed that

he felt "threatened" at that point, because the officers allegedly

told him that if he did not tell them the "right story" about what

happened, they would charge him with his brother's murder, should

he die from his injuries. According to defendant, he told the

police at that point that he had "told [his brother] to pass [him]

the gun and [he] gave it to somebody and they took it and ran off

with it."

11 A-4091-14T3
 Defendant claimed that he was promised during his second

interview with the officers that, if he gave them the gun, "they

were going to let [him] go." According to defendant, he only gave

the videotaped statement because he believed that "if [he] just

gave them that statement, that would get [him] out of the police

station quicker."

Defendant also testified that he did not understand the

Miranda form that he signed, and he only signed it because he was

"tired" and "exhausted." He further asserted that he asked for a

lawyer "[a]t one point in time[,]" but could not remember when.

Defendant's grandmother allegedly came down to the station at some

point, although it is unclear if she arrived before or after

defendant was given Miranda warnings, but the police allegedly

"wouldn't let her up" to see him.

Defendant admitted on cross-examination that he had

previously been arrested "several" times, and had been Mirandized

on more than two prior occasions. One of those occasions occurred

in December 2009, and a copy of the Miranda form used in that

matter was admitted into evidence at this hearing. Defendant

testified that, although the signature on that form from 2009 was

his, he did not remember signing it.

12 A-4091-14T3
 C.

Apart from these fact witnesses, defendant and the State each

presented competing expert testimony concerning the voluntariness

of defendant's statements when he was interviewed at the police

station. Defendant's expert, Dr. Kenneth Weiss, a forensic

psychiatrist, noted that defendant's measured IQ scores are

indicative of "borderline intellectual functioning[,]" although

perhaps not severe enough to support a diagnosis of "intellectual

disability." Dr. Weiss observed that, during his interview with

defendant he "did not express himself clearly at all times[.]" He

also displayed "difficulty understanding" some of Dr. Weiss's

questions, although he did ask for clarification when that

occurred. Having reviewed the videotape of defendant's recorded

police interview, Dr. Weiss concluded that defendant "lacked

cognitive ability" at that time, and "would not fully understand"

what his rights were or how to exercise them. Dr. Weiss thus

opined that defendant's waiver of his self-incrimination privilege

was neither knowing nor intelligent.

By contrast, the State's forensic psychiatrist, Dr. Charles

Martinson, had more favorable impressions of defendant's cognitive

abilities. Dr. Martinson classified defendant as "probably

somewhat below average in terms of overall intellectual

functioning." Having likewise reviewed the interview videotape,

13 A-4091-14T3
Dr. Martinson noted that defendant presented himself in a "calm

and composed fashion," and did not appear so "emotionally

overwrought" as to be unable to knowingly and intelligently waive

his rights. Dr. Martinson found it significant that defendant had

prior criminal encounters, including at least one prior experience

being Mirandized by police. That prior experience, in which

defendant had likewise been questioned after waiving his rights,

bolstered the State's expert's conclusion that defendant's waiver

in the present case was knowing and intelligent.

As additional proof on the voluntariness question, the State

lastly presented testimony from a Pennsylvania police officer who

had Mirandized defendant in one of his prior cases. The officer

testified that, when he read defendant his Miranda rights,

defendant seemed to understand, was paying attention, and was not

upset. According to that officer, defendant was handcuffed during

that particular waiver discussion and the subsequent interview.

D.

The trial judge, Hon. Andrew J. Smithson, issued a detailed

oral decision on the motion to suppress on September 29, 2014. In

the course of his ruling, Judge Smithson made several important

credibility assessments. He found Mott's testimony "not

convincing" and "not of any consequence." The judge specifically

found that defendant's testimony was not credible, as his conduct

14 A-4091-14T3
showed he was "capable of thinking and acting." The judge noted

that, although defendant claimed he blacked out, he was still able

to convince the police to allow Mott to accompany him to the

station. The judge also noted that Mott was allowed to ride with

defendant in the vehicle, which would be "very unusual if one were

considered to be a suspect."

Based on the overall circumstances, Judge Smithson found that

defendant was "a critical witness to what was going on, and he was

treated that way." The judge noted that it was "not surprising"

that "defendant would understand that the police wanted to talk

to him, and there would be inconveniences involved[,]" because

defendant was at the scene and likely had information about the

shooting. As Officer Dzurkoc had testified, defendant told the

police that he knew who shot his brother, so "[o]f course the

police are going to talk to him[.]"

Judge Smithson concluded that defendant was not coerced by

the police in any way. He did note that the police "may have

allowed [defendant] to . . . harbor the belief that production of

the handgun would be his key out of police headquarters." The

judge found it significant that defendant had been Mirandized

previously, "where he made understandable choices." On the whole,

the judge found defendant's suppression testimony "utterly

unconvincing[.]"

15 A-4091-14T3
 The judge also evaluated the opinions of the parties'

competing experts, finding the testimony of Dr. Martinson to be

more persuasive. The judge stated that he "could not disagree

more" with Dr. Weiss's overall conclusion that defendant did not

waive his rights knowingly and intelligently. The judge instead

favored Dr. Martinson's contrary findings.

In sum, the trial judge determined that defendant had the

status of a witness, not a suspect, when he was first questioned

by the police and was not at that point subjected to custodial

interrogation. The judge further concluded that defendant's

subsequent waiver of his rights, after being given Miranda

warnings, was knowing, intelligent, and voluntary. Consequently,

the suppression motion was denied.

E.

Following the court's ruling, defendant entered into a

negotiated plea of guilty to second-degree unlawful possession of

a weapon. As part of the plea agreement, the State dismissed the

other count of the indictment, and agreed to recommend a five-year

sentence, with a one-year parole ineligibility period, contingent

on a Graves Act waiver. The Presiding Criminal Judge of the

vicinage subsequently granted that waiver.

16 A-4091-14T3
 On February 20, 2015, Judge Smithson sentenced defendant to

the five-year term with a one-year parole disqualifier, consistent

with the plea agreement. This appeal followed.

II.

On appeal, defendant raises the following arguments for our

consideration:

POINT I

BECAUSE TERRELL'S STATEMENTS WERE MADE DURING
CUSTODIAL INTERROGATION AND WITHOUT A VALID
WAIVER OF HIS RIGHT AGAINST SELF-INCRIMINATION
THEY MUST BE SUPPRESSED.

A. Pre-Miranda Statements.

B. Post-Miranda Statements.

REPLY POINT I

TERRELL WAS IN CUSTODY BECAUSE THE POLICE TOOK
HIS CLOTHES AND HIS SHOES. HIS SUBSEQUENT
STATEMENTS WERE MADE WITHOUT A VALID WAIVER
OF HIS RIGHT AGAINST SELF-INCRIMINATION AND
MUST BE SUPPRESSED.

Having fully considered these arguments in light of the

record, the trial court's credibility findings, and the applicable

law, we affirm the denial of defendant's suppression motion. We

do so substantially for the thoughtful reasons expressed in Judge

Smithson's detailed oral opinion. We amplify his decision with

several comments.

17 A-4091-14T3
 We must review a trial court's factual findings at the

suppression hearing on defendant's self-incrimination claims under

"a deferential standard." State v. Stas, 212 N.J. 37, 48 (2012).

Our appellate function, on such matters, is simply to consider

"whether the findings made could reasonably have been reached on

sufficient credible evidence present in the record." State v.

Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42

N.J. 146, 162 (1964)). We owe "deference to those findings of the

trial judge which are substantially influenced by his opportunity

to hear and see the witnesses and to have the 'feel' of the case,

which a reviewing court cannot enjoy." Johnson, supra, 42 N.J.

at 161; see also Stas, supra, 212 N.J. at 49. By comparison,

"with respect to legal determinations or conclusions reached on

the basis of the facts[,]" our review is plenary. Ibid. (citing

State v. Handy, 206 N.J. 39, 45 (2011)).

Applying those standards of review here, we are satisfied

that the trial court's credibility and other factual findings from

the suppression hearing are well-founded and should not be

disturbed. In particular, we uphold the court's forcefully-

expressed determination that defendant, his girlfriend, and his

psychiatric expert were less convincing than the State's

witnesses. That determination is buttressed by the videotape of

the post-Miranda interview of defendant, in which defendant

18 A-4091-14T3
appears to respond voluntarily and lucidly to the officers' queries

with no manifest indications of coercion.

We reject the State's argument that the officers' initial

questioning of defendant at the police station before the Miranda

warnings were given should be treated as a custodial interrogation

requiring Miranda warnings. Viewing the "totality of

circumstances[,]" see State v. Presha, 163 N.J. 304, 313 (2000),

we agree with the trial court's assessment that defendant had the

status of a witness, rather than a criminal suspect, when he was

initially interviewed by the police.

As a general proposition, police officers do not necessarily

place someone in custody simply by asking that person to accompany

them to a police station. See, e.g., State v. Marshall, 148 N.J.

89, 225-26, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.

2d 88 (1997); State v. Purnell, 310 N.J. Super. 407, 421-22 (App.

Div. 1998) (determining that the defendant was not in custody

after police took him to a police station), rev'd on other grounds,

161 N.J. 44 (1999). Similarly, "[i]f the questioning is simply

part of an investigation and is not targeted at the individual

because she or he is a suspect, the rights provided by Miranda are

not implicated." State v. Timmendequas, 161 N.J. 515, 614-15

(1999) (citing State v. Pierson, 223 N.J. Super. 62, 67 (App. Div.

1998)).

19 A-4091-14T3
 Defendant likens the circumstances in this case to those in

State v. Hubbard, 222 N.J. 249 (2015), and State v. Messino, 378

N.J. Super. 559 (App. Div.), certif. denied, 185 N.J. 297 (2005).

We find neither of those cases factually on point here. We

acknowledge that in both Hubbard, supra, 222 N.J. at 271, and

Messino, supra, 378 N.J. Super. at 573, as in this case, the

defendant was brought to a police station after a victim was killed

or severely harmed. However, in Hubbard, the detective's questions

"roamed far from merely obtaining information that might assist

[in] the [victim's] treatment." Hubbard, supra, 222 N.J. at 271.

Moreover, the substance and nature of the interview in Hubbard

were suggestive of a custodial interrogation. Id. at 272.

By contrast, there is ample support in the record for the

trial court's finding that the nature and tenor of the officers'

initial interview of defendant was consistent with treating him

as a witness to his brother's shooting, rather than a targeted

suspect. Defendant declared at the shooting scene that he knew

who was responsible for the shots. He voluntarily came with

officers to the police station, accompanied in the same squad car

by his girlfriend, who was also a potential eyewitness. He was

not handcuffed at any time. He was not placed in an interrogation

room at the station.

20 A-4091-14T3
 The substance of the initial interview, fairly construed, was

focused upon obtaining relevant information from defendant, who

was a first-hand eyewitness and therefore a person who could assist

in gathering the pertinent facts. When defendant revealed for the

first time that he had held a gun and fired shots from it at the

scene after his brother was harmed, the police appropriately

terminated the session, issued Miranda warnings, and moved

defendant into an interrogation room.

Likewise, there are significant differences here from the

circumstances in Messino, in which a defendant made incriminating

statements at a police station after his girlfriend's child had

died of apparent blunt force trauma. We concluded in Messino that

the questioning in that case amounted to a custodial interrogation.

Supra, 378 N.J. Super. at 576-77. As a key part of our analysis,

we focused on the fact that the police station was eighteen to

twenty miles from the defendant's home, and that there was "no

practical way for [him] to leave the building[.]" Id. at 576.

Here, by comparison, the station was located only a few minutes

by car from defendant's girlfriend's house. There were several

people at his girlfriend's house earlier that day who might have

been able to assist him. Moreover, according to defendant's

version of the events, his grandmother had come down to the station

to see him.

21 A-4091-14T3
 Defendant stresses that he was wearing a paper suit and that

his bloody clothes and shoes had been taken away from him. Even

so, the police acted reasonably in taking those items of apparel

from defendant, for reasons of both hygiene and evidence

preservation. Conceivably, defendant's girlfriend, mother, or

some other third party could have brought him clothing and shoes.

There is no indication that if defendant made such a request, the

police would have denied it.

Defendant also emphasizes the delay of him waiting

approximately four hours at the station before his interview was

started. The testifying police officers provided a reasonable

explanation for that delay, having decided to interview

defendant's girlfriend first and take her home before turning to

defendant. The police were also involved in ongoing investigatory

activities at the scene of the shooting.

Although the four-hour delay was relatively long, there is

no indication that defendant ever expressed impatience or a desire

to leave while he was waiting. As the trial court found, defendant

presumably had some incentive to remain and show the police that

he could be of assistance to them, by locating the gun that had

been used to shoot his brother. The fact that the officers

expressed disbelief or skepticism in reaction to defendant's

initial account of the events did not convert the situation to a

22 A-4091-14T3
custodial interrogation. As the judge found, defendant's version

of what had occurred at the scene was not credible, and the

officers reasonably had the same reaction.

In sum, we agree with the trial court that defendant was not

the subject of a custodial interrogation until the point when that

interview was halted and Miranda warnings were given.

We likewise concur with the judge's well-established findings

that the post-Miranda questioning was not coercive, and that

defendant voluntarily and intelligently waived his rights before

the questioning was conducted. Although defendant may have some

cognitive limitations, the trial court had a reasonable basis to

agree with Dr. Martinson's expert opinion that defendant was

sufficiently knowledgeable to understand his rights and waive

them. Moreover, the video recording buttresses the judge's

determination of a lack of coercion during the session.3

Affirmed.

3
For sake of completeness, we do note our agreement with defendant
that, if we had found the pre-Miranda questioning to comprise a
custodial interrogation, the contents of the post-Miranda
questioning would likewise require suppression. See State v.
O'Neill, 193 N.J. 148, 180-87 (2007) (enumerating various factors
for such an assessment, including, notably here, the proximity in
time between the pre-warning and post-warning statements and the
failure of officers to inform a defendant that his pre-warning
statements cannot be used against him).

23 A-4091-14T3