# State v. Muhammad

> Supreme Court of New Jersey · March 15, 2005 · 182 N.J. 551

URL: https://www.frixlaw.com/law-library/cases/9762218

## Case

- **Full name:** State of New Jersey, Plaintiff-Appellant, v. Naseem Abdul Muhammad, Defendant-Respondent
- **Court:** Supreme Court of New Jersey
- **Decided:** March 15, 2005
- **Citations:** 182 N.J. 551; 868 A.2d 302; 2005 N.J. LEXIS 188
- **Precedential status:** Published
- **Opinion:** Concurrence by Rivera
- **Judges:** Albin, Rivera-Soto
- **Cited by:** 94 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9762218

## How later opinions describe it (automated extraction)

- explaining the courts have "long recognized that '[a] jury A-0661-24 17 is not bound to believe the testimony of any witness, in whole or in part '" in order to reach its decision (alteration in original) (quoting State v. Bentley Bootery, Inc., 128 N.J.L. 555, 561 (1942), aff…
- holding that a prosecutor may not use at trial a defendant's silence when that silence arises "at or near" the time of arrest, during official interrogation, or while in police custody
- explaining that a jury should not be able to infer guilt from a suspect's silence because courts "cannot know whether a suspect is acquiescing to the truth of an accusation or merely asserting his privilege"
- stating that evidence of a defendant's silence "'at or near' the time of arrest, during official interrogation, or while in police custody" is inadmissible
- stating that "[i]n reviewing a jury finding, we do not attempt to reconcile the counts on which the jury returned a verdict of guilty and not guilty"

## Opinion text

Justice RIVERA-SOTO
concurring in the result.
To the extent the majority holds that “a suspect’s silence while in custody, under interrogation, or ‘at or near’ the time of his arrest cannot be used against him in a criminal trial,” ante, 182 N.J. at 558, 868 A.2d at 305, I concur. However, I cannot concur with the majority’s application of that holding because, in my view, the majority falls prey to the same overbroad analysis that ultimately dooms the prosecutor’s efforts in this case.
The prosecution, through both testimony and argument, referenced the statements and conduct of defendant Naseem Abdul Muhammad during his stay at the Paterson Police Headquarters and repeatedly questioned whether defendant made any reference then to the defense he later advanced at trial. Significantly, defendant’s statements at police headquarters fell within two discrete categories: those statements defendant made to the desk sergeant, Sergeant DeLuccia, when defendant entered police headquarters and accused the victim, M.M., of harassing defendant’s brother and sister, and those statements — or, more accurately, defendant’s silence — after he was restrained in the captain’s office and was interrogated by Officer DeLucca. The majority condemns both statements as impermissible comments on defendant’s silence “ ‘at or near’ the time of his arrest.” There is, however, a fundamental difference between defendant’s statement to Sergeant DeLuccia and defendant’s post-custody silence in response to Officer DeLucca’s questions. That difference is glossed over by the majority; yet it is a distinction that bears both *580 acknowledgment and recognition in this context. Therefore, although I ultimately concur in the result reached by the majority, I write separately to highlight that difference.
I.
The relevant facts of this case are succinctly stated by the majority and need not be repeated here. However, it is instructive to note that, after defendant arrived voluntarily at the Paterson Police Headquarters in the company of M.M. and accused M.M. of harassing defendant’s brother and sister, M.M. broke down and, crying, accused defendant of sexual assault and produced physical evidence corroborating her version of events. Defendant, who to that point had been quite talkative, told Sergeant DeLuceia that defendant was married and just wanted to go home. Confronted as he was with two disparate versions, Sergeant DeLuceia told defendant that he was not free to leave and instructed another police officer to place defendant in the captain’s office. While in the captain’s office, defendant did not answer any questions posed to him by Officer DeLucca. Some time later, defendant was formally arrested and charged with a series of sexual offenses.
At trial, defendant was confronted with positive proof that he had engaged in an act of sexual intercourse with M.M. As his defense, defendant admitted that he had engaged in sexual intercourse with M.M., but claimed it was consensual, a claim defendant never made while at police headquarters. 1 To rebut this defense, the prosecution elicited testimony from both Sergeant DeLuceia and Officer DeLucca to the effect that defendant made no such claim while at police headquarters. The prosecution attacked this defense as nothing more than a recent fabrication by defendant, highlighting both in testimony and argument that, while defendant was at police headquarters, defendant made no reference to the facts that he claimed as a defense at trial.
*581 II.
A.
Ultimately, the vice inherent in the approach taken by the prosecution was its breadth. As noted, there were two distinct issues related to defendant’s stationhouse behavior: defendant’s statement to Sergeant DeLuceia, and defendant’s post-custody silence in response to Officer DeLucca’s questions. I agree with the majority to the extent that, in its questions of Officer DeLucea as well as in its references to defendant’s post-custody silence in response to Officer DeLucca’s inquiries, the prosecution went too far and improperly commented on defendant’s silence “at or near” the time of his arrest. I must part company, however, with the majority inasmuch as the statements defendant made or did not make to Sergeant DeLuceia — and the prosecution’s references in argument to what defendant did or did not say to Sergeant DeLuceia — were proper as they do not implicate the prohibition against references to a defendant’s silence “at or near” the time of his arrest as set forth in State v. Deatore, 70 N.J. 100, 358 A.2d 163 (1976).
B.
As a matter of federal constitutional law, Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976), prohibits any reference to a defendant’s post-arrest and post-Miranda 2 warnings silence. The rule of Doyle v. Ohio was not foreign to our law. Eleven years before Doyle v. Ohio, that prohibition was engrained in New Jersey’s jurisprudence. State v. Ripa, 45 N.J. 199, 204 , 212 A.2d 22 (1965) (“[WJhen a defendant expressly refuses to answer, no inference can be drawn against him under the doctrine of acquiescence by silence or any other concept.”). More to the point, two months before Doyle v. Ohio was decided, we “settled” the question whether, as a matter of New Jersey law, a defendant *582 can be cross-examined on the basis of his failure to provide his exculpatory version in the more expansive context of “at or near” the time of his arrest by concluding that
we are of the view that such questioning is improper. We reach that conclusion as a matter of state law and policy, as to which we may impose standards more strict than required by the federal Constitution, which standards will control regardless of the final outcome of the question in the federal sphere.
The reasons for the stated conclusion rest in two categories. The first derives from the privilege against self-incrimination which is enshrined in the common law; the second from basic principles of evidence law.
[State v. Deatore, supra, 70 N.J. at 112-13 , 358 A.2d 163 (citations and footnotes omitted).]
As the majority aptly points out, the principles of State v. Deatore have been consistently reaffirmed. State v. Lyle, 73 N.J. 403 , 375 A.2d 629 (1977); State v. Brown, 118 N.J. 595 , 573 A.2d 886 (1990).
The majority, however, ignores a distinction underscored in Deatore, Lyle and Brown : the prohibition against comment concerning a defendant’s silence at or near the time of his arrest is limited to comments on the defendant’s silence, and simply is not applicable when the defendant in fact has made a statement. State v. Deatore, supra, 70 N.J. at 108 , 358 A.2d 163 (distinguishing its application from “a situation where a defendant did make a statement at or near arrest, which is inconsistent with his trial testimony, or where conduct (as distinct from silence) at the time of the crime or thereafter is inconsistent with the story told at trial.”); State v. Lyle, supra, 73 N.J. at 421 , 375 A.2d 629 (Conford, P.J.AD, Temporarily Assigned, dissenting) (“Our unanimous holding in State v. Deatore, supra, forbidding comment by the State on defendant’s silence was expressly confined to silence, the opinion noting that the ruling was not applicable when the defendant made a statement.”); State v. Brown, supra, 118 N.J. at 613 , 573 A.2d 886 (“[Ejvidence of pre-arrest silence, particularly in the absence of official interrogation, does not violate any right of the defendant involving self-incrimination” and “pre-arrest silence may be admitted for impeachment purposes provided no governmental compulsion is involved.”). Indeed, not only does State v. Deatore expressly exempt a defendant’s statements from its reach, *583 State v. Deatore tells us that “cross-examination or rebuttal testimony with respect to prior statements inconsistent with the exculpatory story told at trial” are proper. State v. Deatore, supra, 70 N.J. at 119 , 358 A.2d 163 (citation omitted).
A distillation of Ripa, Deatore, Lyle and Brown produces a straightforward and logical matrix: (1) a defendant may be impeached with his statements, be they either pre- or post-arrest; (2) a defendant may be impeached by his pre-arrest silence if there is no governmental compulsion involved; (3) a defendant may not be impeached with his silence “at or near” the time of his arrest whether or not governmental compulsion is involved; and (4) a defendant may never be impeached with his post-arrest silence.
III.
The application of this construct to this case leads to a conclusion different from that reached by the majority regarding Sergeant DeLuccia’s testimony concerning the statements defendant made to Sergeant DeLuecia when defendant entered police headquarters and accused the victim, M.M., of harassing defendant’s brother and sister. Because these were defendant’s statements, and not silence, they are, by definition, outside the ambit of the State v. Deatore prohibition against comments concerning defendant’s silence “at or near” the time of his arrest. Therefore, in my view, the prosecution properly elicited Sergeant DeLuccia’s testimony concerning what defendant did or did not say, and was similarly entitled to comment on that testimony when addressing the jury in summation.
The opposite result obtains with respect to Officer DeLucea’s testimony, and the prosecutor’s argument based thereon, concerning defendant’s silence after he was escorted to the captain’s office and interrogated by Officer DeLucca. At that point — until the time defendant was arrested and Miranda warnings administered — defendant was under a custodial interrogation and governmental compulsion and, hence, his silence could not be used *584 against Mm. State v. Brown, supra, 118 N.J. at 613 , 573 A.2d 886 . Of course, once defendant was arrested and the required Miranda warMngs were admimstered, no testimony or comment concerning defendant’s post-arrest silence were permissible.
I, therefore, concur in the result obtained by the majority on this issue solely because the testimony of Officer DeLucca and the prosecutor’s comments based on that testimony constituted improper testimony and comments based on defendant’s silence “at or near” the time of Ms arrest. However, to the extent the majority’s opinion can be read as barring the prosecution at a retrial from eliciting the same testimony earlier elicited from Sergeant DeLuccia and fairly commenting thereon in summation, such a reading is clearly overbroad and should be rejected.
IV.
I also concur in the majority’s separate conclusions that the trial court had a rational basis to instruct the jury on the charged offense of aggravated criminal sexual contact and the lesserineluded offense of sexual contact; that any seeming inconsistency between the verdict acquitting him of the sexual assault charges and convicting him of sexual contact did not warrant dismissal; and that the Appellate Division’s entry of a judgment of acquittal on the sexual contact charge should be vacated and the case remanded for a new trial on the charge of criminal sexual contact.
For affirmance in part/reversal in part/remandment — Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO — 7.
Opposed — None.
This defense was advanced by defendant's counsel, as defendant did not testify at trial.
Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9762218. Public record. Not legal advice.