Date: 08-18-2015

Case Style: State of New Jersey v. Michael A. Maltese

Case Number: A-96-13

Judge: Lee A. Solomon

Court: SUPREME COURT OF NEW JERSEY

Plaintiff's Attorney: Jane C. Schuster

Defendant's Attorney: Elizabeth C. Jarit

Description: In this appeal, we must determine whether defendant’s
repeated requests to speak with a family member during
interrogation was sufficient to invoke the right to remain
silent and, if so, whether defendant’s subsequent statements and
2
physical evidence recovered as a result of those statements
should be suppressed.
We conclude that defendant, Michael Maltese, asserted his
Fifth Amendment right to remain silent before any admissions
were made. Because defendant’s surreptitiously recorded
statement to his uncle occurred after officers violated
defendant’s right to remain silent that statement is
inadmissible. We further conclude that defendant’s following
statement to law enforcement officers was the fruit of the
unconstitutionally obtained statement to defendant’s uncle, and
must also be suppressed. The State will be allowed to use
defendant’s statements on cross-examination for impeachment if
defendant chooses to testify at trial.
Therefore, we reverse defendant’s convictions for second
degree passion/provocation manslaughter of his father, Michael
Maltese, N.J.S.A. 2C:11-4(b)(1)-(2); and first-degree murder of
his mother, Kathleen Maltese, N.J.S.A. 2C:11-3(a)(1)-(2). On
remand, the trial court shall conduct a hearing to determine
whether the evidence obtained as a result of defendant’s
statements -- the whereabouts of the victims’ remains -- is
admissible under the inevitable-discovery exception to the
exclusionary rule.
However, we affirm defendant’s convictions for second
degree disturbing, moving or concealing human remains, N.J.S.A.
3
2C:22-1(a)(1); fourth-degree tampering with evidence, N.J.S.A.
2C:28-6(1); third-degree hindering apprehension or prosecution,
N.J.S.A. 2C:29-3(b)(1); third-degree theft by unlawful taking,
N.J.S.A. 2C:20-3; third-degree fraudulent use of a credit card,
N.J.S.A. 2C:21-6(h); and fourth-degree false swearing, N.J.S.A.
2C:28-2(a); because those convictions are supported by evidence
independent of the suppressed statements.
I.
A.
The record before us reveals the following. On October 11,
2008, a relative attempted to contact defendant’s mother, but
was unable to do so. That relative notified defendant’s sister,
Leela Parent, who unsuccessfully attempted to contact her
parents. Subsequently, Parent called defendant, other family
members, hospitals, and police stations in an attempt to locate
her parents.
On October 17, 2008, defendant and another sister, Ricky
Lee Fodor, reported their parents missing to the South Brunswick
Police Department. Also, Parent told police that unauthorized
charges had been made to a joint bank account she held with her
mother. The police investigation revealed that the account’s
bank card had been used to make cash withdrawals and numerous
charges between October 10, 2008, and October 13, 2008.
4
Thereafter, police obtained video footage from the bank that
showed defendant using the bank card to make a withdrawal.
On October 18, 2008, Detective James Ryan of the North
Brunswick Police Department and Investigator James Mullin of the
Middlesex County Prosecutor’s Office went to the Maltese
residence, where, in addition to defendant’s parents, defendant
resided with his girlfriend, Nicole Taylor. Detective Ryan
walked through the home, and searched the automobile owned by
defendant’s father.1 Detective Ryan discovered shovels in the
trunk of the car, and had the vehicle impounded for further
investigation.
On the same day, defendant, Taylor and Fodor agreed to go
to the police station for questioning. At the police station,
defendant was read his Miranda rights, and agreed to provide a
statement, which was videotaped. Although defendant initially
maintained that he last saw his parents when he dropped them off
in New Hope, Pennsylvania on October 10, 2008, he stated later
that his parents had disappeared and admitted to using his
mother’s bank card without her permission.2 The police arrested
defendant for obstruction of justice and false swearing, but
released him later that day. The next day, Parent provided to
1 This search is not challenged in this appeal. 2 The statements given by defendant to police on October 18 are not at issue here.
5
police receipts she found in her parents’ home for the
transactions that were charged using the bank card for the joint
account she held with her mother.
On October 24, 2008, defendant agreed to go to the police
station a second time, and to submit to a polygraph test.
Before administering the polygraph examination, Sergeant Paul
Vallas of the New Jersey State Police engaged defendant in
conversation, asked preliminary questions in preparation for the
test, and read defendant his Miranda rights. During the
polygraph examination, defendant denied knowing his parents’
whereabouts.
After “scoring” the polygraph test, Sergeant Vallas told
defendant that, “no doubt . . . you know exactly where your
mother and father are right now.” Sergeant Vallas then told
defendant that members of his family were at the station and
needed to know “exactly where the bodies are.” The following
exchange ensued.
DEFENDANT: I feel at this point I have to talk to my uncle. I need to talk to my uncle.
. . . .
VALLAS: What exactly do you want to talk to your uncle about?
DEFENDANT: I don’t know where to go, what to do from here.
VALLAS: Okay. I hear what you’re saying.
6
. . . .
VALLAS: Okay, and, obviously, you know and I know they’ve been on your back knowing what the results were going to be, okay? So, . . . before you go sit out there and talk to your parent -– your uncle, let’s get this clarified, as you’re sitting here –-
DEFENDANT: I’d like to talk to my uncle first.
VALLAS: As you’re sitting here, as you’re sitting here with your feet flat on the ground . . . [y]ou’re thinking to yourself, I want to tell them. No doubt about it. And when you think to yourself and you realize it’s the right thing to do, just go ahead and say it. So why don’t we just clear the air now. Let’s just clear the air now.
DEFENDANT: I’d like to talk to my uncle first.
Sergeant Vallas replied that, while he could “understand”
why defendant wanted to speak to his uncle, “what we gotta do
right now is clarify this” because defendant owed the family an
explanation as to what happened. Sergeant Vallas further
explained that “just throwing it out to them raw isn’t going to
be a good thing, . . . you need a buffer.” Defendant again
asked to speak with his uncle first, and the exchange continued.
VALLAS: I understand what you’re saying.
DEFENDANT: I don’t think you do.
VALLAS: No, I do. No, I do understand what you’re saying, I do.
DEFENDANT: I want his opinion.
VALLAS: His opinion as far as what?
7
DEFENDANT: As far as what I do. You’re saying I failed [the polygraph].
. . . .
VALLAS: That’s no longer an issue. . . . Now it’s just a question of you pointing out where they are. . . . Your uncle is going to say to you tell them the truth, tell them where the bodies are at, that’s what your uncle is going to tell you. DEFENDANT: I’d like to talk to my uncle.
VALLAS: I understand what you’re saying to me.
DEFENDANT: Or if you’re not going to let me do that –-3
VALLAS: No, no, no, no, listen, listen, listen. Understand something, what I’ve made perfectly clear –-
DEFENDANT: Um-hum.
VALLAS: -- when we first walked in here, is that you’re free to leave here at any time, but you gotta understand something here, though, alright? What we got here is . . . a very serious situation. Would you agree with me?
DEFENDANT: Yeah.
. . . .
VALLAS: I understand what you’re saying, but the point being here is this is the opportunity for you to sit down here and tell me what the truth is. Do you see what I’m saying? This is your opportunity --
DEFENDANT: And I might just do that.
3 The record is unclear as to what defendant was about to say before being interrupted by Sergeant Vallas.
8
VALLAS: Okay, well, listen --
DEFENDANT: But I’d like to talk to my uncle first.
Sergeant Vallas then advised defendant that it was not in
defendant’s “best interest” to speak to his uncle because they
could not be sure of his uncle’s reaction. He further urged
defendant to tell the truth to give his sisters “the opportunity
to have closure” or for “nothing else, for your mother, okay?”
Defendant again insisted on speaking with his uncle.
DEFENDANT: I do, I gotta talk to him.
VALLAS: I know you gotta talk to your uncle, and you’re gonna have a chance to talk to your uncle, no doubt about it.
DEFENDANT: What it comes down to, as far as it goes, I can’t say anything to anybody before [I] talk to him, you know what I mean? If it’s going the way that it’s looking like it’s going, I’m telling him first.
Still, Sergeant Vallas did not end the interrogation.
Defendant explained that he considered his uncle “even better
than a freaking attorney.” When Sergeant Vallas asked why
defendant would not speak with him, defendant replied, “I met
you today,” and the questioning continued.
VALLAS: Okay. So what you’re saying to me is that there’s no doubt it happened, it’s a question of whether or not you’re going to take us to the location or not, is that what it is?
DEFENDANT: No, I’m saying that before anything else happens I want to talk to my uncle.
9
VALLAS: Okay. And then what?
DEFENDANT: And then we’ll go from there.
. . . .
VALLAS: So when your uncle walks in here and he says take us to where the bodies are, are you taking us to the bodies?
DEFENDANT: If he said that? Um, I don’t know what to say, you know, I don’t know what to say, but I’d like to talk to him.
Nevertheless, Sergeant Vallas continued to query defendant,
who again asserted that he would not speak with Sergeant Vallas
before he spoke with his uncle. Sergeant Vallas finally agreed,
then left the room to call a prosecutor to “make sure” that the
camera could be left on while defendant’s uncle was in the
interview room with defendant. The prosecutor advised that as
long as defendant’s uncle knew that the camera was on, the
officers could record the conversation. Sergeant Vallas told
defendant’s uncle that defendant had failed the polygraph test,
that he knew where his parents were, and that although defendant
requested that the camera be turned off, the camera would
actually be left on. Defendant’s uncle agreed to help with the
investigation.
Sergeant Vallas returned to the interview room, and told
defendant that he would shut off the camera. Sergeant Vallas
also stated that defendant’s uncle was aware of “the results of
10
the polygraph exam,” and knew defendant was responsible for his
parents’ disappearance. Defendant asked if his conversation
would be “protected under lawyer, lawyer-client privilege? . .
. . You know what I mean? You’re not allowed to listen to
somebody consult with their lawyer kind of thing?” Sergeant
Vallas replied that defendant’s uncle was “not an attorney,” but
nonetheless the camera would be turned off.
Investigator Mullin watched and listened to defendant’s
conversation with his uncle from the observation room.
Defendant admitted to his uncle that he knew where his parents’
bodies were buried and that “only one other” person was
involved. Investigator Mullin then heard defendant and his
uncle mention going someplace else to talk, and called the
prosecutor again to ask whether defendant and his uncle should
be left alone to speak in private. The prosecutor told
Investigator Mullin not to let defendant and his uncle go
outside to smoke a cigarette and to “make sure” that they spoke
in the room. Nevertheless, defendant was permitted to step
outside with his uncle to smoke a cigarette with Detective Ryan
nearby.
After reentering the interview room and receiving Miranda
warnings for a second time, defendant admitted to Detective Ryan
and Investigator Mullin that he and his father had a fight on
October 8, 2008, and that he had strangled his parents and
11
buried them in the woods behind Friendship Park. Initially,
defendant denied that Taylor was involved, but later admitted
that she had helped dispose of his parents’ bodies. The police
discovered the bodies buried in a shallow grave in Friendship
Park.
B.
A grand jury returned an indictment charging defendant with
the following: two counts of first-degree murder, N.J.S.A.
2C:11-3(a)(1) and (2); third-degree hindering apprehension or
prosecution, N.J.S.A. 2C:29-3(b)(1); third-degree theft by
unlawful taking, N.J.S.A. 2C:20-3; third-degree fraudulent use
of a credit card, N.J.S.A. 2C:21-6(h); third-degree attempted
theft, N.J.S.A. 2C:5-1 and 2C:20-3; and fourth-degree tampering
with physical evidence, N.J.S.A. 2C:28-6(1). One count of
first-degree murder was subsequently amended to charge
passion/provocation manslaughter of defendant’s father, N.J.S.A.
2C:11-4(b)(1)-(2). Co-defendant Taylor was charged in the same
indictment. The grand jury returned a separate indictment
charging defendant with second-degree unlawfully disturbing,
moving or concealing human remains, N.J.S.A. 2C:22-1(a)(1), and
third-degree failing to dispose of human remains in a manner
required by law, N.J.S.A. 2C:22-1(b).
Defendant filed a motion to suppress both his statement to
his uncle and his statement to Detective Ryan and Investigator
12
Mullin, as well as the evidence collected as a result of those
statements. The trial court, after hearing testimony from
Sergeant Vallas, Detective Ryan, and Investigator Mullin and
reviewing a recording of defendant’s statements, suppressed
defendant’s statement to his uncle, but did not exclude
defendant’s statement to police. The court determined that
defendant, by asking to speak to a close relative, effectively
asserted his right to remain silent, and that defendant’s
statement to his uncle was not freely and voluntarily made
because the police misrepresented that the camera would remain
off while defendant spoke to his uncle.
However, in finding defendant’s statement to police
admissible, the trial court determined that the police
scrupulously honored defendant’s initial request to remain
silent. The court noted that the officers administered Miranda
warnings a second time, and permitted defendant to take “a break
to speak to his uncle,” and smoke a cigarette. Further,
defendant “was questioned by different officers, and expressed a
willingness to provide a statement.”
[D]efendant appeared calm, relaxed, and eager to tell his story . . . . [T]hroughout the entire questioning of the defendant there were no threats, bribes, or other inducement that would coerce defendant to confess or lead the [c]ourt to question the reliability of the defendant’s statements.
13
Thus, the court concluded that, with respect to the statement to
Detective Ryan and Investigator Mullin, defendant voluntarily
waived his right to remain silent. The court did not consider
whether the prior statement to defendant’s uncle impacted the
admissibility of the statement to police.
At trial, the prosecution played for the jury defendant’s
statement to Investigator Mullin and Detective Ryan.
Additionally, Taylor testified that she restrained defendant’s
mother until defendant finished strangling his father, at which
point defendant strangled his mother. Taylor explained that,
after both parents were dead, defendant and Taylor removed the
clothing from the bodies, placed them into a bathtub filled with
bleach, rolled the bodies into garbage bags, placed them into
the trunk of defendant’s father’s car, and drove the car to
Friendship Park. Once they arrived, defendant and Taylor dug a
shallow grave and buried the bodies. Taylor also testified
about some of the purchases she witnessed defendant make on the
bank card following the murders.
Defendant testified on his own behalf. He claimed to have
killed his father in self-defense, and that Taylor, not he,
killed his mother.
The jury found defendant guilty of second-degree
passion/provocation manslaughter of his father; first-degree
murder of his mother; third-degree hindering prosecution; third
14
degree theft; third-degree fraudulent use of a credit card;
fourth-degree tampering with evidence; fourth-degree false
swearing; and second-degree disturbing, moving or concealing
human remains. Defendant received an aggregate sentence of
sixty-four years in prison, with an 85% period of parole
ineligibility pursuant to the No Early Release Act, N.J.S.A.
2C:43-7.2.
Defendant appealed, arguing that his statement to
Investigator Mullin and Detective Ryan should also have been
suppressed. Defendant argued the statement to his uncle was
involuntary, the subsequent statement to police was tainted by
the first involuntary statement to defendant’s uncle, and the
evidence recovered as a result of the statements should also
have been suppressed.
The Appellate Division concluded that defendant initially
invoked his right to remain silent by requesting to speak to his
uncle, the police improperly recorded that conversation and, as
such, the trial court properly suppressed the recorded
conversation with defendant’s uncle. The Appellate Division
concluded, as did the trial court, that defendant’s statement to
police “was obtained voluntarily after the police re
administered defendant’s Miranda rights.”
We granted certification on the issue of whether
defendant’s statement to police was tainted by the improperly
15
obtained statement to defendant’s uncle, and therefore should
have been suppressed as the fruit of the poisonous tree. State
v. Maltese, 217 N.J. 623 (2014).
II.
A.
Relying on the trial court’s finding that the police
violated defendant’s right to remain silent by continuing to
question him after he asked to speak with his uncle, defendant
argues that his statement to police “should have been suppressed
as part and parcel of prior unconstitutional interrogation
procedures or, alternatively, as the fruit of the poisonous
tree.” Defendant claims that the entire event constituted a
single interrogation, which became constitutionally defective
when Sergeant Vallas continued to interrogate defendant for ten
minutes after he first invoked his right to remain silent. In
support of that argument, defendant asserts that: he was never
free from police observation; he made his inculpatory statement
to police less than seven minutes after he spoke with his uncle;
Investigator Mullin was involved in orchestrating the State’s
recording of defendant’s conversation with his uncle in the
interview room; and Detective Ryan interviewed defendant
previously, coordinated the polygraph test, and led defendant
into the interview room. Moreover, defendant argues, that the
officers themselves believed the event was one continuous
16
interview, as is apparent from Investigator Mullin’s testimony
that defendant’s uncle “was happy to continue the investigation”
and by the fact that the officers used information learned from
defendant’s statement to his uncle during the second half of the
interrogation.
Defendant argues that the officers’ repetition of Miranda
warnings does not constitute an intervening event between his
admissions to his uncle and his statement to police because the
investigating officers failed to explain that defendant’s prior
admissions to his uncle could be used against him.
Additionally, defendant asserts that his will to resist
providing the statement to police was overcome by the
interviewing officers’ use of the information he told his uncle.
Defendant next asserts that the physical evidence uncovered
as a result of the involuntary statement to police -- the bodies
of defendant’s parents -- should have been suppressed as fruit
of the unlawful statements. Defendant notes that “the location
where the victims were buried was nondescript, with no markings
that would have alerted them to the burial location,” and that
there was no evidence that the officers could have discovered
the physical evidence without defendant’s statement to police.
Finally, defendant argues that his statement to police was
crucial to the State’s case against him -- it was used both as
substantive evidence and for impeachment -- and as such, the
17
admission was not harmless error, and a reversal of his
convictions and remand for a new trial is warranted.
B.
The State contends that defendant’s request to speak to his
uncle does not qualify as an invocation of the right to remain
silent. Further, the State argues that the officers’
misrepresentation that the camera would be off during
defendant’s conversation with his uncle did not render
defendant’s statement to police involuntary because defendant
did not rely on that misrepresentation. The State notes that
defendant asserted that he did not “trust” that the camera was
off, and Sergeant Vallas explained to defendant that the
conversation was not protected by attorney-client privilege.
The State also argues that, even if defendant had invoked
his right to remain silent, that right was scrupulously honored
before defendant confessed to police. The State notes that
Sergeant Vallas allowed defendant to speak with his uncle before
the interrogation resumed, allowed defendant to leave the
interrogation room for a cigarette break, and administered fresh
Miranda warnings.
Next, in reliance on Taylor’s testimony and the physical
evidence in support of defendant’s conviction, the State asserts
that admission of defendant’s statement to the police was, at
most, harmless error. The State contends that police would have
18
inevitably discovered the physical evidence because the manner
of burial and location of the victims’ remains was susceptible
to discovery, and Taylor knew the location of the bodies.
Additionally, the State asserts that this Court’s grant of
certification was sufficient to permit the State to challenge
the underlying reasons for the decision below. The State argues
that defendant was not in custody when he asked to speak to his
uncle and, therefore, the protections of Miranda do not apply.4
III.
We begin our analysis by considering our scope of review.
“When faced with a trial court’s admission of police-obtained
statements, an appellate court should engage in a ‘searching and
critical’ review of the record to ensure protection of a
defendant’s constitutional rights.” State v. Hreha, 217 N.J.
368, 381-82 (2014) (quoting State v. Pickles, 46 N.J. 542, 577
(1966)). We do not independently assess evidence as if we are
the trial court. Id. at 382. Rather, “an appellate court
4 This argument was raised for the first time in the State’s reply to defendant’s petition for certification, and was not the subject of a cross-petition. It was not raised before the trial court, and therefore the trial court made no factual findings as to this argument. We acknowledge that in deciding the issues presented, this Court has the discretion to address matters not raised in a petition for certification. Pfenninger v. Hunterdon Cent. Reg’l High Sch., 167 N.J. 230, 235 n.1 (2001). However, in light of the foregoing, we decline to exercise that discretion here.
19
should typically defer to the trial court’s credibility and
factual findings” because such findings are “often
‘substantially influenced by [its] opportunity to hear and see
the witnesses and to have the “feel” of the case.’” Ibid.
(alteration in original) (quoting State v. Johnson, 42 N.J. 146,
161 (1964)).
To warrant reversal, defendant must show not only that
admission of his statement was error, but that it was error “of
such a nature to have been clearly capable of producing an
unjust result.” R. 2:10-2. In cases in which admitted evidence
implicates a constitutional right, the reviewing court must
determine whether the alleged error was “‘harmless beyond a
reasonable doubt.’” State v. Weaver, 219 N.J. 131, 154 (2014)
(quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824,
828, 17 L. Ed. 2d 705, 710-11 (1967)); see State v. Sanchez, 129
N.J. 261, 278-79 (1992) (holding admission of confession was
harmful error because it was “uncertain whether the error may
have contributed to defendant’s conviction”).
IV.
A.
With an understanding of our scope of review, we turn to
the question of whether during questioning defendant asserted
his Fifth Amendment right to remain silent. Although the New
Jersey Constitution contains no reference to the privilege
20
against self-incrimination, we have repeatedly held “that it is
a right ‘so venerated and deeply rooted in this state’s common
law that it has been deemed unnecessary to include the privilege
in our State Constitution.’” State v. Diaz-Bridges, 208 N.J.
544, 563 (2012) (quoting State v. O’Neill, 193 N.J. 148, 176
(2007)). Indeed, our decisions have been more solicitous of
this privilege than decisions under the federal constitution
alone. Id. at 563-64.
The privilege includes “‘the right of a person to remain
silent unless he chooses to speak in the unfettered exercise of
his own free will, and to suffer no penalty . . . for []
silence.’” State v. Camacho, 218 N.J. 533, 543 (2014) (quoting
State v. P.Z., 152 N.J. 86, 100-02 (1997)). Efforts by a law
enforcement officer to persuade a suspect to talk “are proper as
long as the will of the suspect is not overborne.” State v.
Miller, 76 N.J. 392, 403 (1978). The inquiry turns on “whether
an investigator’s ‘statements were so manipulative or coercive
that they deprived [defendant] of his ability to make an
unconstrained, autonomous decision to confess.’” State v.
DiFrisco, 118 N.J. 253, 257 (1990) (alteration in original)
(police officer’s encouragement of trust did not render
confession involuntary) (quoting Miller v. Fenton, 796 F.2d 598,
605 (3d Cir.), cert. denied, 479 U.S. 989, 107 S. Ct. 585, 93 L.
Ed. 2d 587 (1986)).
21
In the context of custodial interrogation, once a defendant
clearly and unambiguously invokes his right to remain silent,
interrogation must cease. Diaz-Bridges, supra, 208 N.J. at 564
(citing State v. Johnson, 120 N.J. 263, 281 (1990)). Because a
police officer must “scrupulously honor[]” that right, even when
the suspect’s invocation is “ambiguous,” officers are “required
to stop the interrogation completely, or to ask only questions
narrowly directed to determining whether defendant [is] willing
to continue.” Johnson, supra, 120 N.J. at 284; see also State
ex rel. A.S., 409 N.J. Super. 99, 116-17 (App. Div. 2009)
(finding juvenile’s “statement that she did not know whether she
wished to speak to [an officer], her evident reluctance
thereafter to speak, and the long silences . . . suggest[ed] at
least an equivocal invocation of the right to silence,
warranting further inquiry by [the officer]”), rev’d on other
grounds, 203 N.J. 131 (2010).
Whether a suspect has invoked his right to remain silent
requires analysis of the totality of the circumstances,
including consideration of the suspect’s words and conduct.
Diaz-Bridges, supra, 208 N.J. at 568-69. The defendant’s
statement is evaluated in the full context in which the
statement is made, including whether the suspect wished to speak
to another person in order to seek advice or as a condition
before speaking with police. See State v. Martini, 131 N.J.
22
176, 231-33 (1993). Of particular relevance to this matter,
this Court in State v. Harvey, 121 N.J. 407 (1990), addressed a
situation where a defendant requested to speak to someone other
than an attorney. In Harvey, we held that the defendant’s
statement that “he would tell [the officers] about the murder”
after he spoke with his father was sufficient to invoke his
right to remain silent, and therefore required the interrogation
to cease. Id. at 417, 420.
The facts presented here clearly indicate that defendant
invoked his right to remain silent. Defendant voluntarily went
to the police station and initially appeared willing to answer
Sergeant Vallas’s questions. However, once Sergeant Vallas
informed defendant that he had failed the polygraph test and
demanded that defendant tell him where his parents were,
defendant repeatedly stated that he wanted to speak with his
uncle, whom he considered “better than a freaking attorney,”
before answering any further questions.
As in Harvey, defendant here indicated that he wanted to
speak with a family member to obtain advice before proceeding
with questioning. Unlike Diaz-Bridges, supra, 208 N.J. at 548
49, where the defendant failed to indicate that he wanted
questioning to stop, defendant here unequivocally asserted more
than ten times that he wanted to speak to his uncle before
answering any further questions. Additionally, unlike State v.
23
Brooks, 309 N.J. Super. 43, 52-57 (App. Div. 1998), defendant
specifically stated that he wanted to consult with his uncle
about “what to do.”
Considering all the circumstances, we conclude that
defendant affirmatively asserted his right to remain silent when
confronted with the results of the polygraph. Once his Fifth
Amendment right was asserted, the interrogation nonetheless
continued when police engaged defendant’s uncle to assist them
in the investigation; the information learned from recording
defendant’s conversation with his uncle followed Sergeant
Vallas’s misrepresentation that “as soon as I open this door,
the recording is going to be going off.” The trial court found
that defendant confessed as a direct result of the false promise
that the recording device would be off. Under those
circumstances, defendant’s Miranda rights were not scrupulously
honored. Therefore, defendant’s statement made to his uncle was
obtained in violation of defendant’s Fifth Amendment right to
remain silent and was properly suppressed by the trial court.
B.
Having determined that defendant’s statement to his uncle
was obtained in violation of defendant’s assertion of his right
to remain silent and was properly suppressed by the trial court,
we must now resolve whether defendant’s statement to Detective
Ryan and Investigator Mullin also should be suppressed.
24
The United States Supreme Court concluded that “the
admissibility of statements obtained after the person in custody
has decided to remain silent depends under Miranda on whether
his ‘right to cut off questioning’ was ‘scrupulously honored.’”
Michigan v. Mosley, 423 U.S. 96, 104, 96 S. Ct. 321, 326, 46 L.
Ed. 2d 313, 321 (1975). In determining that the defendant’s
right to silence was scrupulously honored, the Court in Mosley
focused on four factors: (1) two hours passed after the
defendant first asserted his right to remain silent; (2) the
defendant received fresh Miranda warnings before the
interrogation resumed; (3) the defendant was questioned by a
different police officer; and (4) the defendant was questioned
about a different crime. Id. at 106, 96 S. Ct. at 327, 46 L.
Ed. 2d at 322; see Oregon v. Elstad, 470 U.S. 298, 310, 105 S.
Ct. 1285, 1293, 84 L. Ed. 2d 222, 232-33 (1985) (explaining that
where statement is coerced, “the time that passes between
confessions, the change in place of interrogations, and the
change in identity of the interrogators all bear on whether that
coercion has carried over into the second confession”); see also
State v. Hartley, 103 N.J. 252, 266-67 (1986) (discussing Mosely
factors and requiring fresh Miranda warnings before resuming
questioning). In this case, the break in questioning was less
than seven minutes, defendant was always in the presence of an
25
officer, and the officers that took defendant’s statement were
known by defendant to be conducting the investigation.
Additionally, after defendant confessed to his uncle,
Investigator Mullin and Detective Ryan made it clear that they
knew defendant “let the cat out of the bag,”5 and therefore, “no
matter what the inducement,” he was not “free of the
psychological and practical disadvantages of having confessed.
He can never get the cat back in the bag.” O’Neill, supra, 193
N.J. at 171 n.13 (quoting United States v. Bayer, 331 U.S. 532,
540-41, 67 S. Ct. 1394, 1398, 91 L. Ed. 1654, 1660 (1947)).
Under those circumstances, “a later confession always may be
looked upon as fruit of the first.” Ibid.
In determining whether this taint is attenuated, the Court
considers the following factors: “the time between confessions,
any intervening circumstances, whether there was a change in
place, whether defendant received an adequate warning of his
rights, whether the defendant initiated the second confession,
the effect of his having previously made a confession, and the
‘purpose and flagrancy of police misconduct.’” Hartley, supra,
103 N.J. at 283 (quoting Brown v. Illinois, 422 U.S. 590, 603
04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416, 427 (1975)); see,
5 Detective Ryan stated, “Jim [Mullin] is totally up to speed and everything, but I just want to go over -- your mom and dad are deceased, correct?”
26
e.g., Harvey, supra, 121 N.J. at 417-18 (holding second
confession sufficiently independent such that taint of illegal
conduct dissipated where statement was given two days after
alleged violation, defendant was not subjected to prolonged
detention, and intervening circumstances separated alleged
violation from confession).
In Hartley, supra, federal agents, without giving Miranda
warnings, interrogated the defendant about ten minutes after
state police officers met with the defendant, and he asserted
the right to remain silent. 103 N.J. at 258-59. This Court
held that, “whether seen as produced by the same interrogation
process as the first or, even though separate, as tainted by the
first,” the second confession was inadmissible. Id. at 284.
The Court noted the interrogations occurred “in the same room,”
the federal agents who conducted the second interview were
involved in the investigation with state officers who conducted
the first, and the second interview occurred close “on the
heels” of the first interrogation. Id. at 279-80. Thus, we
concluded that the two interrogations “comprise[d] a single
continuing event.” Id. at 279; cf. State v. Chew, 150 N.J. 30,
67-68 (1997) (holding five hours and twenty minutes between two
statements sufficient “so that they were not part of the same .
. . interrogation.”)
27
During his recorded meeting with his uncle, defendant
confessed to the murders of his parents. Approximately seven
minutes later, officers initiated another interview of
defendant, administered Miranda warnings a second time, and
immediately gave a clear indication that they knew defendant
confessed to his uncle that he killed his parents. All of the
questioning was conducted in the same interview room; the
statement to police was obtained by officers who defendant knew
were involved in the investigation; and all of the questioning
and discussion concerned the same crimes. We determine that,
under these facts, the statement to police was the “fruit” of
the unconstitutionally obtained statement to defendant’s uncle.
Once defendant “let the cat out of the bag by confessing, no
matter what the inducement, he [was] never thereafter free of
the psychological and practical disadvantages of having
confessed. He [could] never get the cat back in the bag.”
O’Neill, supra, 193 N.J. at 171 n.13 (citing Bayer, supra, 331
U.S. at 540-41, 67 S. Ct. at 1398, 91 L. Ed. at 1660). Under
the facts of this case, not even the second reading of Miranda
warnings removed the taint of the first constitutional
violation.
V.
Having preliminarily excluded defendant’s statements, we
must now determine whether the admission of defendant’s
28
statement to police at trial amounted to harmless error beyond a
reasonable doubt.
The theft, fraudulent use of the bank card, hindering, and
false swearing convictions were independently substantiated. In
fact, those convictions were not dependent in any way on the
statement made by defendant to police. The State offered, and
the trial court admitted into evidence, the receipts, videotaped
recordings of defendant using the bank card, and bank records
from the account to substantiate those charges. The hindering
prosecution conviction was for giving false information
regarding the whereabouts of defendant’s parents and when they
were last seen alive, as evidenced by the October 18, 2008,
statement to police, which occurred before defendant made the
statements at issue here.
Likewise, the tampering with physical evidence and
concealment convictions were independently substantiated by
Taylor’s testimony at trial. Taylor testified about the manner
in which she and defendant put the bodies in the tub, and then
transported the bodies to the park and buried them.
By contrast, defendant’s statement to police was
particularly relevant to defendant’s passion/provocation
manslaughter and murder convictions. Based on the
passion/provocation manslaughter conviction, the jury credited
defendant’s statement to police supported by Taylor’s trial
29
testimony, which was contrary to defendant’s testimony at trial
that he acted in self-defense. We acknowledge that defendant’s
murder conviction is supported by Taylor’s trial testimony, and
the medical examiner’s trial testimony that the manner of death
and injuries to the two victims was similar. However, the State
used defendant’s statement to police to contradict his testimony
that Taylor was responsible for the death of defendant’s mother,
and was successful in obtaining a conviction against defendant
for his mother’s murder.
Because the passion/provocation manslaughter and first
degree murder convictions were substantially dependent upon
defendant’s statement to police, we cannot conclude that
admission of the statement at trial was harmless beyond a
reasonable doubt. As such, defendant’s passion/provocation
manslaughter and first-degree murder convictions must be
reversed and the matter must be remanded for retrial.
Although we have concluded that defendant’s
unconstitutionally obtained statements must be excluded, on
retrial, those statements may be used for impeachment purposes.
In reaching this conclusion, we rely upon our holding in State
v. Burris, 145 N.J. 509 (1996), in which the defendant was
charged and convicted of, among other things, murdering her
mother. Id. at 517. After giving a statement to police denying
responsibility for her mother’s death, the defendant asked for a
30
lawyer, and despite refusing to answer any more questions,
police continued the interrogation and obtained two more
statements connecting the defendant to the homicide. Id. at
516. This Court excluded the evidence in the State’s case-in
chief, but permitted its use to cross-examine the defendant if
she chose to testify. Id. at 532-33, 538. After considering
the totality of the circumstances, we allowed the statements to
be used for impeachment, stating that “[t]he impeachment
exception is strictly limited to situations in which the
suppressed statement is trustworthy and reliable in that it was
given freely and voluntarily without compelling influences.”
Id. at 525.
Here, defendant was twenty years old and had a high school
diploma. The interrogation lasted approximately seven hours,
and defendant was twice advised of his constitutional rights.
Defendant was not subjected to physical punishment and, although
he acknowledged he was tired, did not appear to be in physical
distress as a result of the length or manner of the
interrogation. Under these circumstances, as in Burris, we
conclude that defendant’s statements may be used by the State to
impeach defendant if he chooses to testify at retrial.
VI.
On remand, a determination must be made whether the
physical evidence discovered directly because of defendant’s
31
statements -- the victims’ remains -- should also be suppressed
pursuant to the exclusionary rule.
If the State can show that “the information ultimately or
inevitably would have been discovered by lawful means . . . the
deterrence rationale [of the exclusionary rule] has so little
basis that the evidence should be received.” Nix v. Williams,
467 U.S. 431, 444, 104 S. Ct. 2501, 2509, 81 L. Ed. 2d 377, 387
88 (1984). Under the “inevitable discovery” doctrine, the State
must “show by clear and convincing evidence” the following:
(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.
[Johnson, supra, 120 N.J. at 289 (citing State v. Sugar, 100 N.J. 214, 238 (1984)(Sugar II).]
However, under this standard, “the State need not
demonstrate the exact circumstances of the evidence’s discovery
. . . . It need only present facts sufficient to persuade the
court, by a clear and convincing standard, that the [evidence]
would be discovered.” State v. Sugar, 108 N.J. 151, 158 (1987).
The State, in its supplemental brief, asserts that the
officers would have inevitably discovered the bodies because
32
they were buried in a shallow grave and because Taylor also knew
the location of the burial site. The State has not provided any
evidence that the bodies would have been discovered because of
the way they were buried, or that Taylor would have led them to
the remains. As the record now exists, the State has not met
its burden to establish by clear and convincing evidence that
normal police procedures would inevitably have led to discovery
of the bodies. Cf. id. at 157-58, 161 (concluding body buried
in defendant’s backyard would have been inevitably discovered
because body was buried in shallow grave and would have given
off detectable odor, defendant contracted to sell home and
purchasers, who owned a dog, testified that they would have done
work in that portion of yard, and it would have been obvious to
anyone observing the site that something was abnormal); Johnson,
supra, 120 N.J. at 290 (concluding evidence inside home would
have been inevitably discovered where police testified they were
preparing search warrant for premises); State v. Finesmith, 406
N.J. Super. 510, 523 (App. Div. 2009) (concluding laptop
admissible where police detective testified to specific steps he
would have taken to uncover evidence).
The record reveals that the victims’ bodies were discovered
solely as a result of defendant’s statements made in violation
of his Fifth Amendment right to remain silent. It is possible
that Taylor’s testimony will establish that she would have led
33
police to the victims’ bodies because she had knowledge of their
location, or that the way the bodies were buried might have led
to their discovery. However, that evidence is not present in
the record before us, and the State had no reason to press the
issue in light of the trial court’s decision to admit
defendant’s statement to Detective Ryan and Investigator Mullin.
As such, we remand for a hearing to determine whether the bodies
would have been discovered inevitably. See Sugar II, supra, 100
N.J. at 240 (remanding for factual determination for whether
evidence would have been inevitably discovered).

Outcome: For the reasons set forth above, we affirm defendant’s
convictions for second-degree disturbing, moving or concealing
human remains, fourth-degree tampering with evidence, third
degree hindering apprehension or prosecution, third-degree
theft, third-degree fraudulent use of a credit card, and fourth
degree false swearing, and reverse and remand for retrial the
charges of passion/provocation manslaughter and first-degree
murder. On remand, the trial court shall conduct a pretrial
hearing to determine whether the physical evidence obtained as a
result of defendant’s suppressed statements is admissible under
the inevitable discovery exception to the exclusionary rule.

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