STATE OF NEW JERSEY VS. LAURIE WINT (12-09-2523, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-2182-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAURIE WINT a/k/a LAURIE A.

WINT, JR., LAURIE

AINSWORTH WINT, LANCE,

Defendant-Appellant.

_________________________________

Argued May 30, 2017 – Decided June 20, 2017

Before Judges Sabatino, Nugent and Geiger.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment No.

12-09-2523.

Marcia Blum, Assistant Deputy Public Defender,

argued the cause for appellant (Joseph E.

Krakora, Public Defender, attorney; Ms. Blum,

of counsel and on the brief).

Sarah Lichter, Deputy Attorney General, argued

the cause for respondent (Christopher S.

Porrino, Attorney General, attorney; Sara M.

Quigley, Deputy Attorney General, of counsel

and on the brief).

PER CURIAM

Following a 2014 jury trial, defendant Laurie Wint 1 was

convicted of second-degree passion/provocation manslaughter,

N.J.S.A. 2C:11-4(b)(2) as a lesser-included offense of murder

(count one); second-degree possession of a firearm for an unlawful

purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b) (count three);

fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count four);

and a second-degree "certain persons" weapons offense, N.J.S.A.

2C:39-7(b) (count five). After appropriate mergers, the trial

court sentenced defendant to a fourteen-year custodial term on

count one, subject to an eighty-five percent parole ineligibility

period pursuant to N.J.S.A. 2C:43-7.2, a four-year concurrent flat

sentence on count four, and an eight-year consecutive term on

count five, subject to a five-year parole disqualifier. These

sentences were all made consecutive to a sentence that defendant

was serving on a Pennsylvania conviction.

A key aspect of the State's proofs at trial was defendant's

admission, made during the course of a custodial interrogation by

detectives in Pennsylvania who were investigating a different

homicide in that state, that he had "murdered" a victim in New

1

In certain portions of the record, defendant is referred to as

"Lance."

2 A-2182-14T3

Jersey in June 2011. The interview in Pennsylvania took place

about six months after defendant had been met successively in New

Jersey by Camden and then by Pennsylvania detectives, and after

he had invoked each time his rights to counsel and to remain

silent. The trial court denied defendant's motion to suppress his

incriminating statement to the Pennsylvania investigators after

conducting a pretrial hearing on the issue.

Defendant's principal argument on appeal is that the trial

court erred in its suppression ruling by misapplying the principles

of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed.

2d 378 (1981), and other case law that substantially restricts the

re-interrogation of suspects who have invoked their privilege

against self-incrimination and their rights to have counsel

present. Defendant further argues that the prosecutor made unduly

prejudicial comments during summation. Lastly, he contends that

the trial court should have granted his motion for a mistrial when

it excused two jurors and replaced them with alternates.

For the reasons that follow, we remand the suppression issue

for reconsideration and a taint/attenuation hearing. As we

explain, the remand proceeding shall focus upon what we have

determined to be the impropriety of the Pennsylvania detectives'

first attempted interview of defendant in New Jersey, and whether

that interview tainted their interview of defendant in

3 A-2182-14T3

Pennsylvania six months later. We reject defendant's remaining

arguments concerning the summation and the replacement of jurors.

I.

The trial arose out of the fatal shooting of the victim,

Kevin Miller, in a park in Camden on June 8, 2011. The State's

theory was that defendant, who had previously dated Miller's

girlfriend, had purposefully killed Miller after the two of them

had an argument. Conversely, defendant claimed that he had fired

the gun in self-defense after being accosted in the park by Miller

and several other individuals, at least two of whom had gang

affiliations.

The State presented no eyewitnesses at trial who actually

observed the shooting. However, it did present testimony from a

resident next to the park who heard the sound of a gunshot while

he was outside of his home watering plants. According to that

resident, when he heard the shot, he looked up and saw two men

running in the same direction. One man appeared to be chasing the

other man. The resident saw the man who was being chased collapse.

Other young men ran up to the collapsed man, who told them that

he had been shot. The injured man was then placed in a pickup

truck and driven away. The resident did not get a "clear view"

of the man who had been chasing the shooting victim.

4 A-2182-14T3

The State also presented testimony from defendant's former

girlfriend. She testified that on the day in question, which

happened to be her birthday, she had gone to Philadelphia with

defendant and two other friends to smoke marijuana. When she

returned to Camden later in the day, she learned that Miller, her

then-current boyfriend, had been angry with her. She tried to

call Miller, but he did not answer. According to testimony from

the girlfriend's mother, Miller had stopped by her house that

afternoon to show her a ring he bought her as a birthday gift.

When Miller learned she was not home, he immediately left.

A woman who was defendant's current girlfriend at the time

of the shooting testified that she had encountered Miller that

same day. He asked her, "Where's your boyfriend? I heard he was

with my girlfriend." When Miller left her, she sent a text message

to defendant that warned him he was "chillin' with the enemy."

The prosecution also called to the stand Clifton Bailey, a

friend of Miller who had been with him on the day of the shooting.

Bailey testified that Miller had picked him up at about 6:00 p.m.

that day. Miller drove them to his girlfriend's house. Upon

discovering she was not home, they drove around the neighborhood

for a while looking for her. At that point, Bailey received a

call from his girlfriend, who informed him that Miller's girlfriend

had been in Philadelphia that day with defendant and other people.

5 A-2182-14T3

According to Bailey, this revelation angered Miller. Bailey and

Miller went to the park to "talk to one of our boys." Bailey

denied that Miller was armed at the time.

As described by Bailey, he and Miller started going into the

park, with Miller walking ahead of him. He saw Miller "tussling

with somebody,"2 and then heard a gunshot. Bailey then saw Miller

running inside the park, with another unidentified person running

nearby. Bailey saw Miller fall. Recognizing Miller was wounded,

Bailey drove him to the hospital.

Miller died thereafter. The undisputed cause of death, as

confirmed by the medical examiner, was a gunshot wound to the left

side of his chest.

Another prosecution witness, a close friend of defendant,

testified that he saw defendant three or four days after the

shooting. According to that witness, defendant revealed that

Miller and Bailey, along with others, had tried to "jump" him in

the park, and that Miller had punched him in the face. Defendant

admitted to the friend that he became scared and thought "somebody

was reaching like they [were] going to pull out a gun or

2

Bailey had told police during an interview before trial that the

person who had been "tussling" with Miller was defendant. However,

after conducting a hearing pursuant to State v. Gross, 121 N.J.

1, 17 (1990), the trial court excluded that prior statement by

Bailey as being insufficiently reliable to present to the jury.

6 A-2182-14T3

something." Defendant told his friend he then pulled out his gun

and "just shot[.]"

Defendant was arrested by Camden County police officers over

a month later, on July 31, 2011. The police located defendant

after receiving a phone call reporting the whereabouts of a

fugitive who was wanted for homicide. Defendant tried to run out

of the house in which he was hiding once he saw that police

officers were coming for him.

Two days before defendant was arrested in New Jersey, he and

another person were charged in Pennsylvania with the unrelated

murder of a different victim occurring in that state. On the day

of defendant's arrest, two detectives from Pennsylvania were

waiting for him in the Camden County Prosecutor's Office to

question him about the Pennsylvania charges. The Pennsylvania

detectives monitored defendant from an adjacent room as he was

first questioned there by Camden police.

The Camden police issued Miranda3 warnings to defendant, but

he declined to waive his privilege against self-incrimination and

he also invoked his right to have counsel present. The Camden

police consequently suspended their questioning. They told

3

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

694 (1966).

7 A-2182-14T3

defendant that a "couple more people [would] just stop in for you.

Okay?" Defendant did not respond.

Immediately afterwards, the two Pennsylvania detectives came

into the interrogation room and attempted to interview defendant,

after giving him Miranda warnings. Defendant declined to speak

substantively with those detectives. However, he expressed at

that time a willingness to speak with them with counsel present

about the Pennsylvania homicide, but at a later time in

Pennsylvania.4 Shortly thereafter, the Pennsylvania detectives

encountered defendant in the hallway, and he reiterated his

willingness to speak with them on a future occasion in

Pennsylvania.

Several months later, Pennsylvania detectives met defendant

in the Camden County jail to obtain from him a DNA sample.

According to the detectives' testimony, they did not question him

at that meeting. However, they did advise him that they were

processing paperwork to bring him to Pennsylvania for questioning,

to which defendant responded, "Yeah, I'll talk to you when I get

back to Bucks [County]."

4

The details of this questioning, which were developed in a

pretrial suppression hearing, are discussed in more detail in Part

II(A), infra.

8 A-2182-14T3

Six months after his initial questioning in Camden, defendant

was brought from the Camden jail to a police station in Warminster,

Pennsylvania to speak with the Pennsylvania detectives. No counsel

for defendant was present. The Pennsylvania detectives re-

administered Miranda warnings to defendant. He then waived his

rights, and proceeded to speak with the detectives.

During the course of questioning defendant, Detective Martin

McDonough of the Bucks County District Attorney's Office asked him

why he had come to Warminster. Defendant responded, "[T]here were

warrants for us. In June 2011 I committed a murder in Camden.

About three weeks after the murder I saw my picture on TV."

At trial, the State called Detective McDonough to relate

defendant's incriminating statement admitting that he had

committed a murder in Camden. That critical evidence was presented

to the jury, in accordance with the trial court's denial of

defendant's pretrial suppression motion.

Defendant was the only witness to testify at trial on his

behalf. He asserted that Miller and Bailey were members of the

Bloods gang, but claimed that he himself was not a member of any

gang. He described both Miller and Bailey as "violent[,]"

asserting that they "always start[ed] trouble in the

neighborhood."

9 A-2182-14T3

Defendant told the jury that on June 8, 2011 he was walking

through the park on his way home, after returning from the trip

to Philadelphia. Defendant testified that, while walking, he saw

a white Crown Victoria containing Bailey, Miller, and two other

men. According to defendant, the car "stopped in the middle of

the street" and all four men got out. Miller then allegedly said,

"Yo, Lance, come here, come here," but defendant asserted that he

kept walking.

According to defendant, he then heard Miller "running across

the street[,]" and when defendant looked back, "all three of them

started punching" him. Defendant claimed that he then saw Bailey

"pull out the gun[,]" at which point the men "start[ed] backing

up and pulling out another gun[.]" In response, defendant "reached

for [his] gun and shot it[,]" because he was "scared that [he] was

going to die."

Defendant admitted that he did not have a permit for the .25

caliber gun he used. He insisted that he carried a gun, despite

the lack of a permit, because he lived "in a violent neighborhood"

and needed to "save" himself. Defendant testified that, when he

shot the gun, he "just pulled the trigger." According to

defendant, he did not know that the bullet had hit anyone.

Defendant asserted that, as he ran from the scene, he threw the

gun away.

10 A-2182-14T3

Defendant further testified that he left Camden about three

weeks later and went to Warminster, because "I saw myself on TV

and they said I was wanted for murder." He claimed that he did

not know that New Jersey had a self-defense law, so he "just took

off." Defendant also testified that the Bloods gang members were

"looking" for him and "were trying to shoot" him.

According to defendant, he told Detective McDonough during

the interview in Warminster that he "did a shooting in Camden."

McDonough allegedly then asked if someone had died, and when

defendant responded that they had, McDonough told him, "that's a

murder."

II.

In his brief on appeal, defendant presents the following

arguments:

POINT I

THE PURPORTED CONFESSION, ELICITED DURING AN

INTERROGATION CONDUCTED AFTER WINT HAD

ASSERTED HIS RIGHT TO COUNSEL AT TWO PREVIOUS

INTERROGATIONS, SHOULD HAVE BEEN SUPPRESSED

UNDER THE EDWARDS RULE BECAUSE: WINT DID NOT

INITIATE COMMUNICATION WITH THE POLICE AFTER

HE FIRST ASSERTED HIS RIGHT TO COUNSEL; THERE

WAS NO BREAK IN CUSTODY BETWEEN HIS TWO PRIOR

ASSERTIONS OF THE RIGHT TO COUNSEL AND THE

THIRD INTERROGATION; AND HE WAS NOT PROVIDED

WITH COUNSEL AT THE THIRD INTERROGATION.

A. The Edwards rule.

11 A-2182-14T3

B. The purported statement should have

been suppressed because Wint invoked his

right to counsel when he was questioned

by the Camden police, invoked it again a

few minutes later when he was questioned

by the Pennsylvania police, and the

statement was obtained during a third

interrogation in which he was not

provided with counsel.

C. The motion court made incorrect

factual and legal findings.

D. There was no break in Wint's custody.

E. Wint did not waive his request for

counsel with respect to the Camden

offense.

F. Conclusion.

POINT II

THE TRIAL COURT ERRED IN FAILING TO CORRECT

THE PROSECUTOR'S IMPROPER ARGUMENT THAT WINT'S

FAILURE TO REPORT HIS SELF-DEFENSE CLAIM TO

THE POLICE BEFORE HE WAS ARRESTED WAS PROOF

OF HIS GUILT. (Not Raised Below)

POINT III

THE TRIAL COURT ERRED IN REFUSING TO GRANT A

MISTRIAL AFTER A JUROR INFORMED THE PANEL THAT

SHE KNEW A MEMBER OF THE VICTIM'S FAMILY WHO

ATTENDED THE LAST DAY OF TRIAL AND THAT SHE

WAS AFRAID THAT HE WOULD RETALIATE IF WINT WAS

NOT CONVICTED.

A.

We first address defendant's main argument that the trial

court should have granted his motion to suppress the incriminating

statement he made to the Pennsylvania detectives when they

12 A-2182-14T3

questioned him in Warminster six months after his initial

respective interrogations by the New Jersey and Pennsylvania

officers in Camden. In considering defendant's contentions on

this issue, we apply well-established principles of appellate

review.

In general, appellate courts review a trial court's factual

findings from a suppression hearing under "a deferential

standard." State v. Stas, 212 N.J. 37, 48 (2012). Our role with

respect to the review of factual findings is to consider "whether

the findings made could reasonably have been reached on sufficient

credible evidence present in the record." State v. Johnson, 42

N.J. 146, 162 (1964); see also State v. Elders, 192 N.J. 224, 243-

44 (2007) (internal citations omitted). We must bear in mind the

trial court's "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 appellate

review is plenary. Ibid. For mixed questions of law and fact,

we give deference only to the "supported factual findings" of the

trial court, "but review de novo the lower court's application of

any legal rules to such factual findings." State v. Harris, 181

13 A-2182-14T3

N.J. 391, 416 (2004) (citing State v. Marshall, 148 N.J. 89, 185

(1997)).

1.

The key substantive principles of law that guide us on the

re-interrogation and suppression issues here were set forth by the

United States Supreme Court in Edwards v. Arizona, supra, 451 U.S.

at 477, 101 S. Ct. at 1880, 68 L. Ed. 2d at 378, and thereafter

clarified by the Court and our own state court in later decisions.

Most notably for our purposes here, those post-Edwards decisions

include Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 175 L.

Ed. 2d 1045 (2010).

In Edwards, the defendant, who had been charged with robbery,

burglary, and murder, initially invoked his right to counsel,

asking for an attorney to counsel him prior to entering into any

negotiated plea. Id. at 479, 101 S. Ct. at 1882, 68 L. Ed. 2d at

382. The following morning, the detectives who had previously

questioned defendant visited the jail and asked to talk with him.

Ibid. The defendant was told by a guard at the jail that "he had

to talk" to the detectives. Id. at 479, 101 S. Ct. at 1882, 68

L. Ed. 2d at 383. After being read Miranda warnings, the defendant

waived his rights and provided statements implicating himself in

the crime. Ibid.

14 A-2182-14T3

In reversing the Arizona Supreme Court's finding that the

statements were admissible, the United States Supreme Court held

in Edwards that

when an accused has invoked his right to have

counsel present during custodial

interrogation, a valid waiver of that right

cannot be established by showing only that he

responded to further police-initiated

custodial interrogation even if he has been

advised of his rights. . . . an accused, such

as Edwards, having expressed his desire to

deal with the police only through counsel, is

not subject to further interrogation by the

authorities until counsel has been made

available to him, unless the accused himself

initiates further communication, exchanges,

or conversations with the police.

[Id. at 484-85, 101 S. Ct. at 1884-85, 68 L.

Ed. 2d at 386 (emphasis added).]

The Court further noted that, "[h]ad Edwards initiated the meeting

[at the jail at which he gave the statements], nothing in the

Fifth and Fourteenth Amendments would prohibit the police from

merely listening to his voluntary, volunteered statements and

using them against him at the trial." Id. at 485, 101 S. Ct. at

1885, 68 L. Ed. 2d at 387.

An important aspect of such an inquiry, therefore, is whether

the defendant re-initiated contact with the police. Id. at 487,

101 S. Ct. at 1886, 68 L. Ed. 2d at 388. To determine whether a

defendant re-initiated such a conversation with the police after

invoking his right to counsel, a court must look at whether the

15 A-2182-14T3

suspect "evince[d] a willingness and a desire for a generalized

discussion about the investigation[.]" State v. Fuller, 118 N.J.

75, 82 (1990) (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045-

46, 103 S. Ct. 2830, 2834-35, 77 L. Ed. 2d 405, 412 (1983)).

The Edwards rule has since been applied "to any subsequent

interrogation, whether it pertained to the crime that prompted the

initial interrogation or to a different crime." State v. Wessells,

209 N.J. 395, 403 (2012) (emphasis added) (citing Arizona v.

Roberson, 486 U.S. 675, 683-84, 108 S. Ct. 2093, 2098-99, 100 L.

Ed. 2d 704, 714-15 (1988)). The Edwards restriction is "designed

to prevent police from badgering a defendant into waiving his

previously asserted Miranda rights[.]" McNeil v. Wisconsin, 501

U.S. 171, 177, 111 S. Ct. 2204, 2208, 115 L. Ed. 2d 158, 168 (1991)

(quoting Michigan v. Harvey, 494 U.S. 344, 350, 110 S. Ct. 1176,

1180, 108 L. Ed. 2d 293, 302 (1990)).

Another key facet of the Edwards rule concerns the time

interval between when a suspect is initially questioned and later

interrogated, and, in particular, whether he or she has had what

the Court has regarded as a "break in custody." This concept was

illuminated by the United States Supreme Court in Shatzer, supra.

In Shatzer, the defendant was incarcerated on an unrelated

crime prior to the interrogation concerning the crime at issue in

that case. Supra, 559 U.S. at 100-01, 130 S. Ct. at 1217, 175 L.

16 A-2182-14T3

Ed. 2d at 1050. The defendant was questioned in 2003 about the

crime at issue, and invoked his right to counsel. Id. at 101, 130

S. Ct. at 1217, 175 L. Ed. 2d at 1051. The defendant was then

returned to "the general prison population" without further

questioning. Ibid. The defendant was again interrogated about

that same crime three years later in 2006, after waiving his

Miranda rights. Id. at 101, 130 S. Ct. at 1218, 175 L. Ed. 2d at

1051.

In holding that the defendant's 2006 statement was

admissible, the Court explained in Shatzer that the rationale

underlying Edwards was that

subsequent requests for interrogation pose a

significantly greater risk of coercion. That

increased risk results not only from the

police's persistence in trying to get the

suspect to talk, but also from the continued

pressure that begins when the individual is

taken into custody as a suspect and sought to

be interrogated[.]

[Id. at 104-05, 130 S. Ct. at 1220, 175 L. Ed.

2d at 1053 (emphasis added).]

The Court further reasoned in Shatzer that, when a suspect is not

released from pretrial custody prior to a subsequent

interrogation, that suspect has not "regained a sense of control

or normalcy after they were initially taken into custody for the

crime under investigation." Id. at 107, 130 S. Ct. at 1221, 175

L. Ed. 2d at 1055.

17 A-2182-14T3

The Court thus announced in Shatzer a "break in custody"

exception to the Edwards rule. It instructed that when "a suspect

has been released from his pretrial custody and has returned to

his normal life for some time before the later attempted

interrogation, there is little reason to think that his change of

heart regarding interrogation without counsel has been coerced."

Ibid. Consequently, the Edwards prohibition on a re-interrogation

initiated by police rather than by a defendant did not extend to

circumstances in which there had been a sufficient "break in

custody[.]" Id. at 109-10, 130 S. Ct. at 1222, 175 L. Ed. 2d at

1056. As a bright-line rule, the Court stated that a fourteen-

day interval between the initial questioning of a defendant in

confinement and a resumed interrogation of such a person would

suffice to protect the defendant's constitutional rights. Id. at

110-12, 130 S. Ct. at 1223, 175 L. Ed. 2d at 1057.

Significantly, the Court in Shatzer emphasized the "vast

differences" between "Miranda custody" of a pretrial detainee and

the "incarceration [of a defendant] pursuant to conviction." Id.

at 114, 130 S. Ct. at 1225, 175 L. Ed. 2d at 1059. The Court

recognized that "lawful imprisonment imposed upon [a defendant's]

conviction of a crime does not create the coercive pressures

identified in Miranda." Id. at 113, 130 S. Ct. at 1224, 175 L.

Ed. 2d at 1058. That is because "[i]nterrogated suspects who have

18 A-2182-14T3

previously been convicted of crime live in prison." Ibid. When

released back to the general prison population, "they return to

their accustomed surroundings and daily routine" and "regain the

degree of control they had over their lives prior to the

interrogation." Ibid.

Unlike pretrial detainees, sentenced prisoners are "not

isolated with their accusers." Ibid. Moreover, their continued

confinement is "relatively disconnected from their prior

unwillingness to cooperate in an investigation." Id. at 113, 130

S. Ct. at 1224-25, 175 L. Ed. 2d at 1058. Their former

interrogators have no power to increase or decrease the length of

their criminal sentences. Id. at 113, 130 S. Ct. at 1225, 175 L.

Ed. 2d at 1058-59. By contrast, a pretrial detainee who has yet

to be convicted and sentenced can be subject to significant

coercive pressure from a law enforcement investigator. Ibid.

Our State Supreme Court in Wessells, supra, 209 N.J. at 413,

applied the fourteen-day bright-line rule adopted in Shatzer to a

situation in which the police had re-interviewed a suspect, who

had previously invoked his right to counsel, only nine days after

he had been released from custody. The Court ruled that because

the full fourteen-day break in custody prescribed by Shatzer had

not yet elapsed, "the coercive taint at the initial interrogation

had not dissipated and that [defendant's] statements . . . were

19 A-2182-14T3

therefore not voluntary." Ibid. The Justices also determined

that the principles of Shatzer were mandatory, and did not amount

to mere legal presumptions. Id. at 409-11.

2.

Defendant invokes the tenets of Edwards and Shatzer in

contending that the trial court here committed reversible error

in admitting into evidence his custodial statement he made to the

Pennsylvania investigators in Warminster. First, he argues that

the Pennsylvania detectives should not have been allowed to

interrogate him in Camden without counsel, immediately after he

had invoked his self-incrimination privilege and his right to an

attorney when speaking with the Camden officers. Second, he

maintains that he did not unilaterally "re-initiate" the lines of

communication with the Pennsylvania detectives and that the trial

court's contrary finding is not supported by a fair reading of the

record. Third, he contends that the court misapplied the law in

concluding that a sufficient "break in custody" occurred between

the two interrogations in New Jersey and the later interrogation

in Pennsylvania because he was continuously a pretrial detainee

during that entire time frame.

20 A-2182-14T3

Taking these sub-points in order, we first focus upon the

attempted interview by the Pennsylvania detectives that occurred

at the Camden City Police Station on July 31, 2011, immediately

after the Camden police had issued Miranda warnings to him and he

invoked, in response, his right to counsel. Because of the pivotal

importance of this first conversation defendant had with the

Pennsylvania detectives, we present the transcribed version5 in

its entirety here.

DETECTIVE MCDONOUGH ("MM"): How ya doin? Do,

do you go by Lance or Laurie or . . .

DEFENDANT ("D"): Yeah, Lance.

MM: Lance? I'm Marty McDonough. This is

John Bernardin.

DETECTIVE BERNARDIN ("JB"): John Bernardin.

D: How ya doin?

MM: We're, we're detectives form

Pennsylvania.

D: Okay.

MM: I work for the Prosecutor's Office in

Pennsylvania. John works for the police

department in Warminster. Um, I understand

that Camden asked you if you wanted to talk

about their case.

D: Mm, hmm.

5

We have also viewed the video recording of the interview, which

was played for the trial court during the suppression hearing.

21 A-2182-14T3

MM: Um, we're from Bucks County. There's

always two sides to a story. And what we'd

like to do is talk to you about our case.

D: Okay.

MM: Um, I'd like to know if you're willin to

do that. There's always, like I said, there's

always two sides to a story.

D: Mm, hmm. Um, you give, you give me a

cigarette, I'll tell you the whole thing about

yours because I didn't even know, I don't know

the guy.

MM: Okay.

D: I really don't know who hired. . .

MM: Okay. But let, I have to go through

this. The same thing that Camden did?

D: Yeah.

MM: I have to go through it [i.e., the

issuance of Miranda warnings] again with you

because it's two separate cases.

D: (inaudible)

MM: I mean you said you don't wanna talk to

them. . .

D: Because. . .

MM: And I just have to make sure. . .

D: They're harassin me.

MM: What's that?

D: Harassin me. Like cops are like tellin

the stuff here, like threatening me and stuff.

MM: Okay.

22 A-2182-14T3

D: So I don't really wanna talk to. . .

MM: Okay.

D: Anybody (inaudible)

MM: But you're willing to talk to us though?

D: Yeah. Cause you guys not from. . .

MM: No. We're from Pennsylvania. Obviously,

you know you're under arrest. Right?

D: Yeah I am.

MM: We have the duty to explain to you and

warn you of the following legal rights. What

I'd like to do is I'm gonna read you each of

these and there's a letter next to them. . .

D: Uh, huh.

MM: As long as you understand what I explain

to you just put your initials next to each

letter.

D: Mm, hmm.

MM: Okay? You have the right to [re]main,

remain silent and you do not have to say

anything at all. You understand that?

D: Mm, hmm.

MM: Put your initials next to A. Anything

you say can and will be used against you in a

court of law. Understand that? You have the

right to talk to a lawyer of your own choice

before we ask any questions and also to have

a lawyer with you while we ask the questions

if you, if you so desire. Do you understand

that?

23 A-2182-14T3

If you cannot afford to hire a lawyer and

you want one, we will see that a lawyer's

provided to you free of charge before we ask

you any questions. You understand that?

If you're willin to answer our questions,

you have the right to stop answering such

questions at any time you wish. You

understand that?

D: Mm. hmm.

MM: Do you understand all the things that

have been explained to you?

D: Mm, hmm.

MM: And what I asked you that question, your

answer was. . .

D: What question? Do I understand?

MM: Do you understand all the things that

have been explained to you?

D: Yes.

MM: Okay. Do me a favor? Write the word yes

there, then put your initials here? Okay, the

last question do you wish to speak to us

without a lawyer being present.

D: I want him to sit here while we talk.

[Brief interruption when a Camden detective

temporarily enters to drop off or retrieve a

briefcase.]

MM: I didn't hear. Do you wish to speak to

us without a lawyer being present?

D: I want him to sit here while we ta[lk].

MM: You want a lawyer here with us?

24 A-2182-14T3

D: Yeah.

MM: Okay. So, that, that won't happen today

because we don't have a lawyer here with you.

But if you want one, that, that, that's fine.

D: Yeah.

MM: You're welcome to do that but, um, if you

wanted to talk to us today then, then your

answer here would be no?

D: No. I would. . .

MM: Or do you want to talk to us today?

D: I wanna talk to y'all but I want a lawyer

here present cause I don't, don't. . .

MM: I got ya. I got ya. That, that, that's,

if that's your answer, that's you[r] answer.

D: Yeah. So. . .

MM: So, you do not want to talk to us right

now.

D: Without a lawyer?

MM: Correct. So you write no there [on the

form]. And put your initials there. And do

me a favor, sign the, sign this across here?

D: Across that way?

MM: Yep. And just down here put the date and

the time. The time is, uh. . .

D: 7[:]30

MM: Yeah.

JB: 9:30.

D: 9:30?

25 A-2182-14T3

MM: Mm, hmm. Okay, So I guess we're done

for today then.

D: Sorry.

MM: You have any question. . . You don't

have to apologize. You, you can do what you

want. You have any questions for us? Okay.

[(Emphasis added).]

The trial court6 made no specific findings as to whether this

first session the Pennsylvania detectives had with defendant in

New Jersey was permissible under Edwards and the controlling case

law. Of course, we give due deference to the trial court,

including its determination that the detectives who testified at

the suppression hearing were credible. Nonetheless, we conclude

as a matter of law that the Pennsylvania detectives' first attempt

to question defendant, only a few minutes after they witnessed him

invoking his right to counsel to the Camden detectives, violated

his constitutional rights.

As the United States Supreme Court made very clear in Edwards,

"an accused . . . , having expressed his desire to deal with the

police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further

6

The pretrial suppression ruling was made by a different judge

than the one who eventually tried the case.

26 A-2182-14T3

communication, exchanges, or conversations with the police."

Edwards, supra, 451 U.S. at 484-85, 101 S. Ct. at 1885, 68 L. Ed.

2d at 386.

Here, defendant indisputably and unambiguously expressed to

the Camden detectives during their attempted interview with him

that he did not want to answer questions without having counsel

present. Despite that clear invocation of his rights, the Camden

authorities allowed the Pennsylvania detectives into the interview

room moments later, without telling defendant that he was not

obligated to speak with them. Clearly, defendant himself did not

"initiate" the back-to-back interview, and the trial court made

no such finding. Further, it is undisputed that no attorney was

summoned to be present with defendant when the Pennsylvania

detectives attempted to question him.

For purposes of this first phase of our constitutional

analysis, it is irrelevant that the Pennsylvania detectives had

come to New Jersey from a different jurisdiction and wanted to

speak with him about a different homicide committed in that state.

See, e.g., Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486,

112 L. Ed. 2d 489 (1990) (holding it unconstitutional for a county

deputy sheriff to interrogate a suspect about a homicide only two

days after he had been interviewed at the local jail by FBI agents

about other matters and had then invoked his right to have counsel

27 A-2182-14T3

present, where the suspect had consulted with an attorney but had

not initiated the subsequent conversation with the deputy

sheriff). See also State v. Hartley, 103 N.J. 252 (1986) (likewise

holding that the court must exclude incriminating statements a

suspect made to State law enforcement officials after he had been

improperly questioned by federal agents who had not administered

Miranda warnings to him). As the Court noted in Hartley, despite

the fact that the New Jersey officials themselves had issued

Miranda warnings to defendant during the second interview, their

questioning "on the heels of" the improper earlier interview by

the federal agents was "unavoidably tainted." Id. at 284.

We recognize that the video and transcript show that the

Pennsylvania detectives approached defendant in a polite and non-

threatening manner, and that they did not try to coerce him

unfairly into making any incriminating statements. We further

recognize that the Pennsylvania detectives confined their

discussion to the crime in Pennsylvania, and that they immediately

respected defendant's wishes once he made it clear that, although

he was willing to talk with them about the Pennsylvania matter,

he did not want to speak to them about it at that time without a

lawyer present. Even so, the Pennsylvania detectives had no right

to initiate any interrogation of defendant, only minutes after he

28 A-2182-14T3

had invoked his right to counsel in the same interrogation room

to the Camden detectives.

For these compelling reasons, we hold, as a matter of law,

that it was improper for the Pennsylvania detectives to attempt

to interrogate defendant in Camden "on the heels" of his invocation

of his rights to the Camden investigators, just as a similar

sequence of questioning was invalidated in Hartley. Ibid.

With this key legal infirmity in mind, we turn to consider

whether later events nonetheless render the statements that

defendant made to the Pennsylvania detectives six months

afterwards admissible. In ruling those later statements were

admissible, the trial judge largely focused upon two factors: (1)

a finding that defendant, rather than the Pennsylvania detectives,

initiated the arrangements to interview him in Pennsylvania, and

(2) a finding that there was a sufficient "break in custody"

between the two consecutive interviews in Camden and the later

interview in Warminster.

With all due respect to the trial court's fact-finding role,

it is apparent that the record nonetheless reflects that the

Pennsylvania detectives, rather than defendant, were the primary,

if not sole, initiators of the Warminster interrogation. As

recounted by Detective McDonough at the suppression hearing, "as

we were leaving [Camden] we explained to [defendant] that we were

29 A-2182-14T3

trying to file paperwork to bring him back to Bucks and that we

would talk to him when he got back to Bucks. And he acknowledged,

yeah, I'll talk to you when I get back to Bucks." This description

by the detective supports defendant's contention that his

expressed willingness to resume talking with the Pennsylvania

detectives – after invoking to them his right to counsel – was

not, as the trial court found, "unsolicited." Instead, defendant's

response in the hallway at the Camden police station mimicked the

language contained in the remark the detectives first made to him.

Although defendant had expressed earlier in the interrogation

room a desire to speak in Pennsylvania with the Pennsylvania

detectives about the homicide case pending in that state, there

is no proof that he re-initiated a discussion with the Pennsylvania

detectives after telling them he wanted a lawyer. Instead, the

impetus to initiate a discussion after defendant invoked his

constitutional rights came from the Pennsylvania detectives.

Given the chronology shown by the record, the trial court's

mistaken finding on this discrete point must be set aside. 7 See,

e.g., State v. Hreha, 217 N.J. 368, 385 (2014) (reversing trial

7

To be fair to the trial court, the hallway conversation in Camden

was not recorded or transcribed. Nonetheless, there is no proof

that defendant spoke first to the officers, or that he raised the

topic of a subsequent interview without police prompting.

30 A-2182-14T3

court findings from a suppression hearing where the record lacked

sufficient credible evidence to support them).

Viewing, as we must, the record as a whole, we conclude that

defendant did not "initiate" his second interrogation by the

Pennsylvania detectives. Accord Edwards, supra, 451 U.S. at 484-

85, 101 S. Ct. at 1885, 68 L. Ed. 2d at 386. At the very least,

there is no evidence in this record that defendant ever told the

Pennsylvania detectives before he was taken by them to Warminster

that he was willing to answer their queries without having a lawyer

at his side.

Moving on to defendant's final sub-point regarding the "break

in custody" factor set forth in Shatzer, we encounter additional

difficulties. Apparently, neither of the trial attorneys

expressly argued to the pretrial judge that, as we noted in Part

II(A)(1), supra, the Supreme Court in Shatzer recognized an

important doctrinal distinction between the interrogation of

persons who are confined due to past convictions, as opposed to

persons who are pretrial detainees. See Shatzer, supra, 559 U.S.

at 104-05, 130 S. Ct. at 122-210, 175 L. Ed. 2d at 1053.

It is undisputed that defendant was still a pretrial detainee

being held in New Jersey at the time he was extradited and brought

over to Pennsylvania for questioning on January 18, 2012. The

record does not divulge whether he had been assigned an attorney

31 A-2182-14T3

by that point in New Jersey to represent him. He had not yet been

indicted in New Jersey. The terms of his detention and whether

he had been unable to post bail are not clear. Nor does the

present record divulge what defendant's "normal" routine was in

New Jersey during that period of his pre-trial confinement. Such

details were important to the Supreme Court in its "break in

custody" analysis in Shatzer. See id. at 114, 130 S. Ct. at 1225,

175 L. Ed. 2d at 1059 (underscoring the defendant's ability as a

prisoner to have regular exercise and recreation, visit the

library, receive training and education, send and receive mail,

and receive visits twice weekly). None of that information

unfortunately is contained in the present record.

Moreover, it is not entirely clear if the Pennsylvania

authorities' ability to place coercive pressures on defendant was

sufficient here to negate a "break in custody." Id. at 113, 130

S. Ct. at 1225, 175 L. Ed. 2d at 1059. To be sure, the pending

homicide charges in Pennsylvania against defendant and another co-

defendant likely added to the degree of leverage over defendant

while he was confined in the Camden County jail. On the other

hand, his principal captors at that time were New Jersey officials,

upon whom defendant was presumably dependent with respect to the

day-to-day conditions of his confinement.

32 A-2182-14T3

In sum, the present record is incomplete and inconclusive to

enable the Shatzer "break-in-custody" analysis to be resolved

definitively. Consequently, we are not in an optimal position to

either affirm or reverse the trial court's finding on that

important sub-point. For the reasons noted, infra, an amplified

break-in-custody analysis is best conducted by the trial court on

remand, along with the taint/attenuation issue that we shall now

discuss.

3.

The gap in time between defendant's first and second interview

by the Pennsylvania detectives bears not only on the aforesaid

break-in-custody question, but also implicates issues of taint and

attenuation. More specifically, given our conclusions that (1)

the Pennsylvania detectives' session with defendant in Camden was

improper and (2) defendant did not re-initiate a conversation with

them, does the impropriety of that session necessarily taint the

detectives' interview in Warminster that followed six months

later?

The United States Supreme Court has identified several

factors for evaluating whether improper police questioning at an

initial session will taint an interrogation conducted at a later

time. These factors include the time between the interviews,

whether the interview location changed, whether the defendant

33 A-2182-14T3

received adequate Miranda warnings, whether he initiated the

second interrogation, the effect on the second session of any

admissions made at the first session, and the "purpose and

flagrancy of [the] police misconduct." Brown v. Illinois, 422

U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416, 427

(1975); see also State v. Maltese, 222 N.J. 525, 548 (2015)

(applying these factors); State v. Hartley, supra, 103 N.J. at 283

(same). Depending upon how these factors align, a court determines

whether a defendant's incriminating statement to police officials

comprises the "fruit" of an illegal previous interrogation. See

Maltese, supra, 222 N.J. at 549 (concluding that a defendant's

incriminating statement to police was the fruit of an earlier

unconstitutionally-obtained statement that he made to his uncle,

which police had surreptitiously and illegally recorded).

The record on appeal in this case is inadequate to weigh and

assess these taint factors. One might infer that the Pennsylvania

detectives established a rapport with him during their illegal

first session with him in Camden, and that the rapport facilitated

their success in inducing him six months later in Warminster to

waive his rights and speak to them there without the protection

of counsel. On the other hand, even assuming the Pennsylvania

detectives should not have met with defendant in Camden after he

had invoked his rights, their session with him in Camden in which

34 A-2182-14T3

he made no inculpatory admissions arguably could be viewed as

innocuous and not reasonably something that tainted their future

interactions with him. The trial court made no express rulings

on these important questions of taint – understandably because it

had not determined, as we do here, that the Pennsylvania

detectives' attempted interview of defendant in Camden was

improper.

The causal relationship between the series of events, or the

lack thereof, is not obvious from the record. We cannot tell if,

hypothetically, the Pennsylvania detectives had never met with

defendant several times in Camden (first in the interrogation room

in July 2011, thereafter in the hallway that day, and months later

when they came to collect his DNA sample), whether he would have

been amenable to waiving his rights and speaking with them in

Warminster.

To be sure, as the pretrial judge aptly recognized, defendant

appeared quite eager to discuss the Pennsylvania homicide with the

Pennsylvania detectives in Camden, but not at that particular time

and place. But we cannot readily determine from this record

whether that seemingly eager attitude was affected by defendant's

perception that he had been mistreated by the New Jersey

authorities. Nor can we discern conclusively whether the

Pennsylvania detectives, who stressed to defendant that they came

35 A-2182-14T3

from a different state, unfairly capitalized on the improper

opportunity to speak with him immediately after he had aborted his

interview with the New Jersey detectives.

Defendant did not testify at the suppression hearing. The

questions posed to the testifying officers at the hearing did not

delve thoroughly into these critical subjects of cause, effect,

and possible taint.

In making these observations, we do not subscribe to the

extreme view that defendant's invocation of his Fifth Amendment

rights in July 2011 during the interviews in Camden indefinitely

and inexorably barred all law enforcement agents from any

jurisdiction from attempting to interview him about the crimes

during his lengthy period of pretrial detention. Long ago in

Michigan v. Mosley, 423 U.S. 96, 102, 96 S. Ct. 321, 326, 46 L.

Ed. 2d 313, 321 (1975), the United States Supreme Court cautioned

that "a blanket prohibition against the taking of voluntary

statements or a permanent immunity from further interrogation,

regardless of the circumstances, would transform the Miranda

safeguards into wholly irrational obstacles to legitimate police

investigative activity, and deprive suspects of any opportunity

to make informed and intelligent assessments of their interests." 8

8

We are mindful that the Court's subsequent decisions after Mosley

refined these concepts, resulting, for example, in the "fourteen-

36 A-2182-14T3

Hence, a careful, case-specific analysis is necessary to determine

if the interviews in Camden nullified the interview conducted six

months later in Warminster, at which time defendant was duly re-

issued Miranda warnings and at which time he agreed to talk to the

Pennsylvania detectives without counsel present.

As the New Jersey Supreme Court noted in Hartley, supra, 103

N.J. at 283, issues of taint stemming from an initial improper

interrogation "are ordinarily viewed as questions of fact to be

determined by a trial court after a hearing." Furthermore,

"ordinarily a remand for the purpose of conducting such a hearing

and making findings of fact and conclusions of law would be in

order." Id. at 283-84. On the facts in Hartley, the Court

concluded that a remand was not needed, because the circumstances

of the back-to-back interviews at issue there could not "generate

a conclusion of sufficient attenuation between the first and second

interviews to dissipate the taint." Id. at 284.

In the present case, we find that the remand "ordinarily"

prescribed by Hartley would be beneficial. As we have already

noted, the trial court did not address questions of taint and

attenuation that have now emerged on appeal as pivotal issues. We

day rule" for break-in-custody analysis set forth in Shatzer.

Nevertheless, the Court's general observation that we have quoted

from Mosley remains instructive.

37 A-2182-14T3

will not presume that what occurred six months earlier in Camden

necessarily invalidated the Pennsylvania detectives' interview in

Warminster six months later. Instead, the questions of taint and

attenuation must be explored in depth on remand at a supplemental

hearing, at which both the State and defendant may present

additional testimony germane to those matters. In a related vein,

for the reasons we have already noted, the trial court must also

address on remand the factual information bearing upon the "break

in custody" analysis set forth in Shatzer.

At the conclusion of the remand proceeding, the trial court9

shall issue detailed findings of fact and conclusions of law as

to these matters. The court shall specifically reconsider, in

light of that analysis and the guidance of this opinion, whether

defendant's incriminating statement he made in the Warminster

interview should be admitted or suppressed. If the court finds

the former, then his conviction shall remain in place. If the

court finds the latter, defendant's conviction must be vacated and

a new trial shall proceed, at which the statement will be excluded.

Either party may pursue appellate review of the remand

9

We recognize that the pretrial judge who presided over the 2013

suppression hearing is no longer serving in the trial court, so a

different judge will need to discharge this responsibility,

perhaps the judge who presided over the 2014 trial.

38 A-2182-14T3

determination in a timely fashion, in accordance with the Rules

of Court.

In sum, this matter is remanded for reconsideration of the

suppression issues and for a hearing on taint/attenuation. Pending

the completion of the remand process, the judgment of conviction

shall remain in force.

B.

Although we need not reach the two remaining points raised

on appeal by defendant, we address them very briefly for sake of

completeness. Neither of them have any merit.

First, we find no basis to set aside defendant's conviction

because of his claim that the prosecutor made unduly prejudicial

remarks during summation. In particular, defendant complains, for

the first time on appeal, that the prosecutor unfairly argued to

the jury that he should have waited for the police at the scene

of the shooting if indeed his conduct was innocuous. We discern

no impropriety in this line of argument, which was a fair attempt

to impeach and negate defendant's trial testimony asserting self-

defense. See State v. Brown, 190 N.J. 144, 159 (2007) (noting

that a defendant's pre-arrest silence or conduct is admissible

"for the limited purpose of impeaching [that] defendant's

credibility"); State v. Brown, 118 N.J. 595, 613 (1990) (further

noting that "evidence of pre-arrest silence, particularly in the

39 A-2182-14T3

absence of official interrogation, does not violate any right of

the defendant involving self-incrimination"). Moreover, the trial

court in this case issued an appropriate limiting instruction on

the point after the State cross-examined defendant about his pre-

arrest conduct. Defendant identifies no deficiency in that

instruction, and nor did his trial attorney.

Second, we are unpersuaded by defendant's claim that the

trial court should have granted his counsel's motion for a mistrial

after two jurors were dismissed and replaced by alternates during

the deliberations. One of the two jurors had recognized a member

of the victim's family in the audience, and she thereafter

mentioned that observation to the other jurors. One of those

other jurors expressed misgivings to the court about continuing

to serve.

We are satisfied from the circumstances presented that the

trial court acted appropriately to ameliorate any potential

prejudice arising from these events and that it safeguarded

defendant's right to a fair trial and a fair jury. The court

performed a voir dire of all of the remaining jurors individually.

Other than the two jurors who were excused, none of them expressed

qualms about continuing with the deliberations. Nor is there any

evidence that the jurors were exposed to extraneous evidence. The

court's inquiries sufficed to assure that the deliberating jurors

40 A-2182-14T3

would be unaffected by the events that led to the removal of their

two colleagues. See State v. Jenkins, 182 N.J. 112, 124 (2004)

(discussing the applicable standards for juror substitution).

Defendant has not demonstrated that the trial court abused its

discretion in its handling of these juror issues; State v. Musa,

222 N.J. 554, 565 (2015) (requiring such a demonstration).

All other arguments presented by defendant lack sufficient

merit to warrant discussion. R. 2:11-3(e)(2).

III.

Affirmed in part, and remanded in part for reconsideration

and further hearing on the suppression issues. We do not retain

jurisdiction.

41 A-2182-14T3