APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1105-04T5
STATE OF NEW JERSEY,
April 6, 2006
APPELLATE DIVISION
Plaintiff-Respondent,
v.
AHMED ELKWISNI,
Defendant-Appellant.
______________________________
April 6, 2006
Argued November 30, 2005 – Decided
Before Judges Wecker, Fuentes and Graves.
On appeal from Superior Court of New
Jersey, Law Division, Bergen County,
Indictment No. S-1280-03.
Jeffrey J. Garrigan argued the cause for
appellant (Cammarata, Nulty & Garrigan,
attorneys; Thomas J. Cammarata, on the brief).
John J. Scaliti, Assistant Prosecutor,
argued the cause for respondent (John L.
Molinelli, Bergen County Prosecutor, attorney;
Mr. Scaliti, of counsel and on the brief).
The opinion of the court was delivered by
FUENTES, J.A.D.
Defendant Ahmed Elkwisni was convicted after a jury trial of second-degree robbery, in
violation of N.J.S.A. 2C:15-1; and third-degree possession of a weapon without a permit,
in violation of N.J.S.A. 2C:39-5b. He was acquitted of kidnapping, armed robbery, aggravated
assault, terroristic threats, and second-degree possession of a handgun for an unlawful purpose.
The trial court sentenced defendant to an aggregate term of four years,
See footnote 1
subject
to an eighty-five percent parole ineligibility period under the No Early Release Act
(NERA). N.J.S.A. 2C:43-7.2.
See footnote 2
The court also imposed the mandatory fines and penalties.
Defendant now appeals raising the following arguments:
POINT ONE
THE TRIAL COURT IMPROPERLY PERMITTED THE STATE TO INTRODUCE A STATEMENT BY THE
DEFENDANT ELKWISNI REGARDING THE LOCATION OF THE GUN USED IN THE ROBBERY SINCE
THE STATEMENT WAS MADE WHILE HE WAS IN CUSTODY AND WITHOUT A VOLUNTARY,
KNOWING AND INTELLIGENT WAIVER OF HIS FIFTH AMENDMENT RIGHTS TO REMAIN SILENT AND
TO HAVE COUNSEL PRESENT AFTER ADEQUATE ADVICE.
POINT TWO
THE PROSECUTOR'S REPEATED CROSS-EXAMINATION AND COMMENTS IN SUMMATION ON DEFENDANT'S SILENCE AT THE
TIME OF HIS ARREST INFRINGED ON THE DEFENDANT'S PRIVILEGE AGAINST SELF-INCRIMINATION UNDER THE
FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY STATE LAW.
POINT THREE
THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL,
OR IN THE ALTERNATIVE TO ORDER A NEW TRIAL AS THE VERDICT WAS
AGAINST THE WEIGHT OF THE EVIDENCE.
We agree with defendant's argument as to Point One. We are satisfied that
the record developed before the trial court at a N.J.R.E. 104 hearing was
insufficient, as a matter of law, to determine, beyond a reasonable doubt, that
defendant voluntarily and knowingly waived his constitutional rights under Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed.2d 694 (1966). See
also State v. Adams,
127 N.J. 438, 447 (1992). We are equally satisfied,
however, that the appropriate remedy to correct this error is not reversal of
defendant's conviction, but to remand this discrete issue to the trial court to
conduct a new hearing on voluntariness.
We discern no legal basis to reverse defendant's conviction based on the arguments
raised in Points Two and Three. The argument raised in Point Three lacks
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). In the
interest of clarity, we will nevertheless examine the argument raised in Point Two,
in order to delineate the proper boundaries of cross-examination by the State when
a defendant testifies regarding statements he made to the police after his arrest.
Here, defendant offered these statements in support of his affirmative defense of duress.
As the facts here illustrate, the line of demarcation between legitimate impeachment of
a defendant's credibility through the use of prior inconsistent statements, and improper inquiry
or comment on defendant's constitutional right to remain silent, is not always clear.
This question was only obliquely noted by the Supreme Court in State v.
Muhammad,
182 N.J. 551, 566 n.3 (2005), and was not directly raised in
State v. Black,
380 N.J. Super. 581 (App. Div. 2005), our most recent
post-Muhammad opinion.
This case gives us the opportunity to address the issue directly, and, in
the process, provide guidance to the trial courts on how to: (1) safeguard
a defendant's constitutional right to remain silent, by setting strict limits on the
scope of the State's cross-examination; and (2) craft jury instructions that will enable
jurors to distinguish between legitimate evidence that may affect a defendant's credibility, and
an unconstitutional inference of culpability based on a defendant's post-arrest silence.
We will consider all of defendant's arguments on appeal in the context
of the following facts, which we summarize here based on the evidence presented
at trial.
The Facts
On March 24, 2003, at approximately 8:30 p.m., Ibrahim Samha and defendant entered a convenience store in Fairfield owned and operated by Jamal Darwish. The two men approached Darwish while he was sitting behind the cash register and Samha pointed a handgun at Darwish's head and demanded money. Samha was wearing blue transparent gloves. Samha then pulled the storekeeper from behind the counter, and struck him in the face and head several times with the handgun. According to Darwish, while he was on the floor, defendant kicked him repeatedly in the stomach. Both men then dragged the victim to an aisle, in an apparent attempt to shield him from the view of any passerby. Samha kneeled on Darwish's neck, maintaining the gun pointed at his head.
According to Darwish, defendant obtained the keys to the store and, after some initial difficulty, was able to lock the entrance doors. Darwish was then tied up with duct tape, while Samha continued to kneel on him, demanding money and making repeated threats to kill him. Darwish finally capitulated to the assailants' demands, and gave defendant directions on how to open the register. Dissatisfied with the amount of money in the register, defendant allegedly told Samha to "finish [Darwish] off."
While the robbery was in progress, a customer, subsequently identified as Alan Pollock, tried to enter the store, only to discover the door was locked. Pollock testified that he saw defendant walk to the cash register and attempt to open it. Pollock also observed defendant wave his arms at him, as if to indicate that the store was closed. Although Pollock initially left, he quickly returned and observed Samha standing behind the counter ripping phone cards off the wall. The police arrived shortly thereafter.
Upon their arrival, the police observed Darwish inside the store, lying on the floor, with his hands tied with duct tape. He was also bleeding from the head. Darwish testified that as the police attempted to break down the locked door, defendant told Samha to cut the duct tape from Darwish's hands. It was also around this time that defendant took possession of the gun, and hid it. According to defendant, he did this to avoid the potential for a violent confrontation with the police.
Prior to the police forcibly entering the store, Darwish testified that one of the defendants gave him the store key. All three men then walked, single file, toward the front of the store, with Darwish in the front, Samha behind him, and defendant in the rear. Darwish opened the door, and the police immediately rushed in and ordered the two defendants to the ground.
The Miranda Issue
During the trial, at the completion of the victim's testimony, the trial court excused the jury, and conducted a N.J.R.E. 104 hearing to determine the admissibility of an oral statement allegedly made by defendant after he was in police custody. See footnote 3 Richard Uram was the first Garfield police officer to interact with defendant. Uram handcuffed defendant while he was on the ground, and placed him in the back of a police car. According to Uram, he read defendant his Miranda rights. At the time of defendant's arrest, Uram's main concern was the recovery of the handgun used in the robbery. Uram gave the following account of what transpired after he placed the handcuffed-defendant in his police car:
I began talking to [Elkwisni]. Well, first, after I arrested him, I -- I read him his rights. I remind him again of his rights inside the car and I asked him -- I said, you know, believe there's a gun involved, this is a store, kids go in the store, if you hid it in the store, tell us where it is. I mean, God forbid a kid goes in there and grabs this gun and he ends up thinking it's a toy, he shoots somebody and he kills him. You know, we have to put the public safety --
Q. And you said that you reminded him of his rights in the car. Where was the first place that you advised him of his rights?
A. Once he was cuffed.
Q. All right. And was that a verbal or written form?
A. Verbal.
Q. And then you said you reminded him of his rights again in the
car. What car are you referring to?
A. My police unit at the time.
Q. Okay. So the only two people in the car when you were reminding him of his rights in the car was you and the defendant Ahmed Elkwisni?
A. He was in the car, I was standing alongside the car speaking with
him with the door open.
Q. Okay. You're standing alongside. Okay.
A. Yes. He was in the back.
Q. Now when you're having this conversation with him, I take it you're speaking
in English?
A. Yes.
Q. And what about him? What is he speaking to you and after you
advised him of his Miranda rights did he say anything to you.
A. He was -- he was speaking. When he spoke to me, he speak
[sic] English. At first he declined that there -- he didn't know anything
about a gun. As he's telling me this, he's looking around. He just
appeared very nervous. He just kept looking right to left, right to left,
looking -- looking around and he just -- he kept denying it, denying
it, denying it. Then eventually he told me -- he goes, "It's behind
the Huggies."
Q. And nobody else was around other than -- the other defendant was not
there at the time, correct?
A. The other defendant had -- had no contact whatsoever where I was.
Q. Now at a later point in time at headquarters, was there a written form given to the defendant with regards to his Miranda rights, Ahmed Elkwisni? Were you involved in that at all?
A. Not by me.
Q. That was another police officer?
A. I -- if -- if someone else gave it to him, I don't
know. Maybe a detective did.
[Emphasis added.]
Uram gave the following additional facts during defense counsel's cross-examination:
Q. Okay. And what is this document?
A. Advising somebody of their Miranda rights.
Q. Okay. And what time is that document executed?
A. It says 11:30 p.m.
Q. Okay. You had arrested him much earlier in the evening, hadn't you?
A. Yes.
Q. In the incident report that you filled out --
A. Yes.
Q. -- you never indicated that you read him his Miranda rights, did you?
A. I don't believe I put it in the report.
Q. Customarily it would be included in there, wouldn't it?
A. I usually don't put it in there, only on DWI cases.
Q. Well, aren't you required to by statute?
A. To put it in the report?
Q. Correct.
A. Not to my knowledge.
Q. You also [in your report] used the words "with the safety of the public in mind"?
A. Correct.
Q. Do you normally qualify the reason that you're asking a suspect a question?
A. Can you repeat that?
Q. Do you normally qualify, indicate the reasoning for asking a suspect a particular
question in your reports? You say the reason that you're asking the question.
A. I just put it down. I mean, I don't understand what you're trying
to say.
Q. Okay. So when you normally fill these out, okay, in other cases other than this one, do you normally, customarily, in your regular course of filling these out state in your reports the reason that you're asking a suspect a particular question?
A. I just -- if -- if, I mean, sometimes you have to do things in order, like probable-cause order, you know?
Q. So you were trying to establish some reason or justification for asking
him the question?
A. What was the -- what was the line again?
Q. Well, the line was, "This officer, with the safety of the public
in mind, asked."
A. Right. Well, because that was my -- I wanted to make sure whoever
read it understood that's why I was asking him that question.
Q. Your testimony now is that you can remember an arrest a lot of arrests ago, maybe seventy-five arrests ago, we'll say, today even though there's no record of it of what you did that day?
A. When I place somebody in custody, I read them their rights.
Q. Is that something that you normally do?
A. That's how we're trained.
Q. So you're testifying from what you normally do. You don't necessarily know that
you did it that day?
A. I know I did it that day because I do it every time
I make an arrest.
Q. So you only know you did it that day because you customarily do
it?
A. Because I always do it.
Uram was the only witness to testify at the N.J.R.E. 104 hearing. In
fact, his testimony was the only evidence presented by the State in support
of admitting the statements made by defendant shortly after he was arrested.
At the close of the testimony, defense counsel made the following argument in
support of his application to exclude defendant's statement:
I think he clearly testified that he doesn't have any independent record of
having read his Miranda rights to this witness that day. His testimony was
that he normally does it, but that he doesn't have any independent recollection
as to this particular arrest.
Clearly, there's nothing in his statement to support a claim that he did
read him his Miranda rights. The Miranda form itself is not executed until
11:30 p.m. that evening. He indicates in his statement a reason or some
justification for having questioned him, which seems a little unusual. I think, Your
Honor, the statement should be excluded.
Relying exclusively on Uram's testimony, the trial court made the following findings:
[In determining the adequacy of] Miranda warnings, basically the Court is instructed to
go to the totality of the circumstances. This particular case the testimony is
that [Uram] responded to an armed robbery arrest . . . . and
at the time he arrested [defendant], that he had read him his rights
and reminded him of those in the car; that he had cuffed him;
that initially Mr. Elkwisni said he knew nothing about the gun, but then
the officer had said something to him about safety of children. And as
a result of that, he said they were behind the Huggies.
Based upon the totality of the circumstances, it appears the Miranda warnings were
read to him; that the defendant understood them based upon the officer's question.
There didn't seem to be any trickery. I guess we're touching upon the
Christian burial a little bit as to the safety of children, but it
was voluntarily made. I will allow it.
A
Waiver of Miranda Rights
We start our analysis of this issue by reaffirming certain basic principles of constitutional law. See footnote 4 In determining the adequacy of Miranda warnings given by the police as a prerequisite to finding that defendant knowingly, voluntarily and intelligently waived the rights contained therein, a court's function is not simply to ascertain whether the police meticulously performed some mechanical exercise. A court must carefully review the substance of what was communicated by the police to a defendant, in order to determine whether the alleged waiver was the product of an informed, intelligent and voluntary decision. As Justice Clifford wrote more than thirty years ago:
In resolving the adequacy of the language of a Miranda warning a court should give precedence to substance over form. The decision does not require that any specific language be used to inform an accused of his rights. . . . The "words of Miranda do not constitute a ritualistic formula which must be repeated without variation in order to be effective. Words which convey the substance of the warning along with the required information are sufficient."
[State v. Melvin,
65 N.J. 1, 13-14 (1974) (citations omitted) (emphasis added).]
See also State v. Dixon,
125 N.J. 223, 242 (1991); State v. Messino,
378 N.J. Super. 559, 577 (App. Div.), certif. denied,
185 N.J. 297 (2005).
The dissent concludes that the trial court was "entitled to credit the officer's
unrefuted testimony that he followed his usual procedure of giving the required warnings
to every arrestee." Adoption of the dissent's analysis would render a Miranda hearing
perfunctory, devoid of both substance and meaning.
Miranda warnings are given with the purpose "to neutralize the pressure inherent in
custodial interrogation." State v. Smith,
374 N.J. Super. 425, 433 (App. Div. 2005).
Prior to questioning defendant, Officer Uram was required to warn him (1) of
the right to remain silent; (2) that any statement he made could be
used against him; (3) he had a right to an attorney; (4) if
he could not afford an attorney, one would be provided; and (5) he
had the right to stop answering questions at any time. Duckworth v. Egan,
492 U.S. 195, 198,
109 S. Ct. 2875, 2877;
106 L. Ed.2d 166, 174 (1989); Miranda v. Arizona, supra, 384 U.S. at 44, 86 S.
Ct. at 1612, 16 L. Ed.
2d at 706-07; State v. Knight,
183 N.J. 449, 462 (2005); State v. Godfrey,
131 N.J. Super. 168, 173 (App.
Div. 1974), aff'd,
67 N.J. 267 (1975).
We review a trial court's findings as to the admissibility of a defendant's
confession under the "sufficient credible evidence" standard. Knight, supra, 183 N.J. at 468.
We will only reverse these findings if they are not supported by substantial
credible evidence. State v. Johnson,
116 N.J. 99, 102 (1989). Under this standard
of review, it is "improper for the Appellate Division to engage in an
independent assessment of the evidence as if it were the court of first
instance." State v. Locurto,
157 N.J. 463, 471 (1999). We are "not permitted
to 'weigh the evidence, assess the credibility of witnesses, or make conclusions about
the evidence.'" Id. at 472 (quoting State v. Barone,
147 N.J. 599, 615
(1997)). Our review is restricted to assessing "'whether the findings made [by the
trial court] could reasonably have been reached on sufficient credible evidence present in
the record.'" Ibid.
Mindful of this standard, we nevertheless conclude, as a matter of law, that
the evidence presented to the trial court was insufficient from which to conclude
that defendant made a knowing, informed, and voluntary waiver of his rights under
Miranda. Here, we are unable to discern from the phrases "I read him
his rights," or "I advised him of his rights," what information Uram conveyed
to the handcuffed defendant when Uram began to question him in the back
of the police car. Without more, there is no factual or legal basis
to sustain the trial court's conclusion that "[b]ased upon the totality of the
circumstances, it appears the Miranda warnings were read to [defendant]" and that "defendant
understood them based upon the officer's question."
It is self-evident that there can be no knowing, intelligent, and voluntary waiver
of the rights under Miranda, when the record does not reflect that a
fair and accurate recitation of those rights was in fact given by the
police to the defendant. Cf. State v. DiFrisco,
174 N.J. 195, 235-36 (2002),
cert. denied,
537 U.S. 1220,
123 S. Ct. 1323,
154 L. Ed.2d 1076 (2003). Without competent evidence from which to find, beyond a reasonable doubt,
that defendant waived his rights under Miranda, State v. Adams,
127 N.J. 438,
447 (1992), the trial court's legal conclusion cannot be sustained.
Based on the record developed at the N.J.R.E. 104(c) hearing, the police did
not use any improper interrogation techniques to extract an inculpatory statement from defendant.
In fact, defendant's attack on the admissibility of the statement is based entirely
on a "sufficiency of the evidence" standard, not on the methods used by
the police to question defendant. Stated differently, the record here lacks an adequate
evidential foundation from which to conclude that defendant, who was in custody, was
given the required information under Miranda; that he understood the information; and that
he voluntarily decided to speak to the police about the location of the
gun, without first consulting with an attorney. We consider this situation to be
the functional equivalent of the total absence of a hearing, requiring a remand
to the trial court to conduct a new hearing on voluntariness. State v.
Kelly,
61 N.J. 283, 294-95 (1972); State v. Marczak,
344 N.J. Super. 388,
398 (App. Div. 2001), certif. denied,
171 N.J. 44 (2002). On remand, if
the State fails:
[T]o establish voluntariness beyond reasonable doubt, the defendant will be entitled to a
new trial at which the statements will be excluded. If, however, the State
does establish beyond reasonable doubt that the statements were voluntary, and the trial
judge so determines, then the defendant's conviction may stand.
[Kelly, supra, 61 N.J. at 294 (citations omitted).]
We are thus satisfied that the remedy here is to remand the matter
for a new hearing to determine voluntariness.
Public Safety Exception
The State argues in the alternative that even if the record does not support the conclusion that defendant waived his Miranda rights, his statements about the whereabouts of the handgun were nevertheless admissible pursuant to the exigency or public safety exception to Miranda. We disagree.
The public safety exception to the requirement that a person subjected to custodial interrogation by police be given Miranda warnings was first articulated in New York v. Quarles, 467 U.S. 649, 655-56, 104 S. Ct. 2626, 2631, 81 L. Ed.2d 550, 557 (1984). In Quarles, the police were investigating a sexual assault committed with a handgun. The investigating officer spotted the suspect approaching a supermarket checkout counter. The suspect was apprehended inside the store carrying an empty gun holster. Immediately after handcuffing the suspect, and prior to reading him his Miranda rights, one of the officers asked him about the whereabouts of the gun. The suspect "nodded in the direction of some empty cartons and responded, 'the gun is over there.'" Quarles, supra, 467 U.S. at 652, 104 S. Ct. at 2629, 81 L. Ed. 2d at 554.
In creating an exigency exception, the majority of the Court in Quarles emphasized that "in the very act of apprehending a suspect, [the police] were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket." Quarles, supra, 467 U.S. at 657, 104 S. Ct. at 2632, 81 L. Ed. 2d at 557-58.
The Court thus reasoned that "concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda." Quarles, supra, 467 U.S. at 653, 104 S. Ct. at 2630, 81 L. Ed. 2d at 555.
In State v. Stephenson, 350 N.J. Super. 517 (App. Div. 2002), we declined to invoke the exigency exception, and emphasized the need to narrowly construe its application. Id. at 524-25. The facts in Stephenson illustrate this point. The police received information that the defendant had threatened to shoot a person with whom he had allegedly argued earlier. The police proceeded to the defendant's motel, handcuffed him, and demanded to know the location of the gun. Contrasting the facts in Stephenson to the Quarles case, we noted that the circumstances of the threat were not immediate, and the gun was not believed to be concealed in a public area, with unrestricted access to it by third parties.
The Stephenson court established that the Quarles exigency exception applies only where the circumstances indicate "(1) there [is] an objectively reasonable need to protect the police or the public; (2) from an immediate danger; (3) associated with a weapon; and that (4) the questions asked were related to that danger and reasonably necessary to secure public safety." Stephenson, supra, 350 N.J. Super. at 525.
Here, defendant and his cohort were apprehended by the police, without any opportunity to conceal the weapon used in the robbery, in any other location but inside the store. The store was surrounded by law enforcement personnel, and the entire area was secured as a crime scene after defendant's arrest. The record is silent as to what efforts, if any, the police undertook to locate the weapon without defendant's assistance. One thing is clear, however; there was no immediate threat to public safety triggering the application of the Quarles exception.
Uram's questions about the gun began after defendant had been handcuffed and placed in the police car. There is no evidence to support the State's claim that the police's interrogation was the product of a spontaneous concern for the safety of the public. According to Uram, he read defendant his Miranda rights on at least two separate occasions. Once immediately after arresting defendant and escorting him to the police car, and again after Uram learned that the gun used in the robbery had not been located. In this context, the "public safety" issue arose as an interrogation tactic, not as an impromptu attempt to address an obvious and immediate public danger. Applying the Quarles exception to these facts subverts the constitutional protections embodied in Miranda, and opens the door to the pretextual invocation of "public safety" whenever the police are not immediately able to recover weapons used in the commission of a crime.
Post-Arrest Conduct
We will now address a question left partially unanswered by the Supreme Court in Muhammad. Namely, what are the limits of prosecutorial inquiry as to defendant's post-arrest silence, when defendant testifies at trial as to the substance of exculpatory statements he allegedly made at or near the time of his arrest. This issue pits defendant's constitutional right to remain silent against the State's right to challenge the credibility of defendant's affirmative defense of duress. Stated differently, are the concerns raised by the Supreme Court in Muhammad minimized or rendered irrelevant once a defendant affirmatively testifies about what he told the police at or near the time of his arrest?
As with most things in life, the answer to this question cannot be stated through a simple "yes" or "no." Once a defendant testifies about statements he made to the police at or near the time of his arrest, the State must be permitted to cross-examine him regarding whether or not these alleged statements were actually made. Cross-examination of the defendant however, must be carefully circumscribed. The prosecutor may not wander into areas not covered by a defendant's direct testimony, to suggest, even implicitly, that a defendant had an affirmative duty to come forward with exculpatory evidence. The State is not permitted to use omitted details or other indicia of the right to remain silent, to shift the burden of proof to the defendant. See State v. Galiyano, 178 N.J. Super. 393, 397 (App. Div.), certif. denied, 87 N.J. 424 (1981).
The trial court must also craft jury instructions that will enable jurors to distinguish between legitimate evidence that may affect a defendant's credibility, (internal inconsistencies in the testimony and rebuttal evidence), and drawing a constitutionally impermissible inference of culpability from a defendant's post-arrest silence.
Here, defendant asserted the affirmative defense of duress. He testified that he was never part of any plans to carry out the robbery, and only entered the store to purchase a soft drink and get something to eat. During his direct examination, he gave the following description of the events that transpired once inside the store:
Q. What did you observe when you walked in the store?
A. When I walked into the store, I saw [the co-defendant]. He was standing
at the -- at the register, and he was talking to the cashier.
Q. Okay. And what did you do?
A. I walked down the aisle to the refrigerators to get like an orange
drink or something.
Q. Okay. And what happened next?
A. Well, when I was at the refrigerator, I could hear like yelling in
the front. It was like loud yelling, and there was like stuff falling.
I could hear like stuff falling. So I turned around to see what
was going on but the shelves were pretty high, so I had to
walk back to the front of the store to see what was going
on.
Q. And what did you observe when you got to the front of the
store?
A. When I got to the front of the store, [the co-defendant], he was
fighting with the store guy. There were like -- they were grabbing each
other and they were both fighting over a gun, so I was shocked.
I was just standing there, and the [co]-defendant had blue gloves on and,
in a matter of seconds, the –
THE COURT: You mean [the co-defendant] had blue gloves on.
PROSECUTOR: Objection, Your Honor.
A. Sorry about that. The -- [co-defendant], he had blue gloves and, in a
matter of seconds, the store guy was on the floor, and now the
gun was being pointed at me.
Q. The gun was being pointed at you?
A. Yeah.
Q. And what did you do?
A. I couldn't do anything; he was standing right in front of me.
Q. So what happened next?
A. He started yelling at me to like come here. He kept yelling come
here. And I was shocked. This guy had blue gloves on; he had
the gun; I didn't know what was going on; and the other guy,
he was just laying on the floor. So [the co-defendant], he comes up
to me, he grabs me by my shirt, and starts pulling me to
the back of the store.
Q. What happened after that?
A. When I got to the back of the store, like he was standing
behind me, he kept like pushing me to the back of the store,
but the store guy, he was like laying on the floor, and like
I couldn't walk over him, so he kept like pushing me up against
the aisles and stuff were falling off the aisles.
Q. And Mr. Darwish was on the ground?
A. Yeah.
Q. Okay. What happened once he got you to the back of the store?
A. When I was in the back of the store, he told me not
to move. He told me just stay there, and he started yelling at
the store owner.
Q. What was he yelling to him?
A. He was yelling to him I want my money, and then he kept
yelling to him give him the keys to the store.
Q. Okay. And did Mr. Darwish give him the keys?
A. Yeah. He took it out of his pocket.
Q. And what happened then?
A. Then [the co-defendant] like -- he came up to me again, he started
grabbing me, and he walked me towards the front door and told me
to lock the door. I dropped the keys. I didn't want to --
I was scared, I didn't want to lock the door. I didn't lock
myself in there, too, so --
Q. Why were you afraid?
A. Because he had a gun to the -- like he was grabbing the
back of me, and he had the [gun] in his other hand.
Q. Okay.
A. So --
Q. What did you do with the keys?
A. I dropped the keys, then like he pushed me down to pick them
up, and I picked up the keys and I gave them back to
him. And then he handed me back the keys and he said go
lock the door. I got to the front, I put the key in
the door, I didn't lock it, but he was still standing behind me
just like persistent for me to lock the door. He kept yelling at
me, so I locked the door and I took the keys and I
put it on the counter.
Q. Okay. And what happened after that?
A. Then he grabbed me to the back of the store, and he told
me just stand there. And he walked to the front; he started grabbing
stuff off the shelves.
Q. Okay. And where was Mr. Darwish during that time?
A. He was on the floor.
Q. Okay. And was he tied up or anything?
A. No. He was just told not to move.
Q. And what were you doing?
A. I was just standing in the back.
Q. Okay. And [the co-defendant], what was he doing at that point?
A. I don't know. He went to the front of the store. I couldn't
see him because of the shelves again. He just kept yelling, he was
yelling at the store owner.
Immediately after he was arrested, defendant testified that his first concern was to
avoid being placed in the same police car as the co-defendant. Once he
was certain that he would not be exposed to any further intimidation or
possible retaliation by co-defendant, defendant testified that he attempted to inform Officer Uram
about the coercion and intimidation he experienced in the store. The following excerpt
from his direct testimony illustrates the point:
After I saw the officer take [co-defendant] to the other car . .
. because I told [the police officer] -- I said, don't bring him
over here. And he said, all right. He's going to send him over
to another car. When they sent [co-defendant] to the other car, I told
[the officer] what happened inside the store.
[Emphasis added.]
It is clear to us that defendant used this testimony as a critical
part of his duress defense. These post-arrest statements, allegedly made at the scene,
without the opportunity to reflect or consult with counsel, are intended to bolster
defendant's credibility, by rebutting any implication of recent fabrication. Under these circumstances, the
State must be given a fair and reasonable opportunity to cross-examine defendant as
to what details he allegedly gave to the police.
The State is also entitled to present rebuttal testimony from the officer allegedly
involved in these conversations. Such rebuttal evidence may, if necessary to contradict defendant's
testimony, include not only what the officer remembers defendant saying, but also what
he remembers him not saying. This conclusion does not contravene Muhammad. This kind
of rebuttal testimony, (what the witness remembers defendant not saying), is proper, so
as long it is restricted to refuting defendant's trial testimony. That is, if
defendant testifies that he told the police officer: "the car was red," the
officer, in rebuttal, may testify that defendant made no such statement.
On the other hand, if defendant does not testify that he made a
statement about the color of the car, the State cannot use that omission
as a means of attacking defendant's credibility, by having the rebuttal witness testify
that no such statement was made to him. Rebuttal testimony impinges upon a
defendant's constitutional right to remain silent when it suggests that the mere absence
of a statement at the time of arrest is a basis to doubt
the veracity of defendant's trial testimony.
The circumstances in this case are critically different than the facts the Supreme
Court confronted in State v. Muhammad. In Muhammad, defendant, who had identified himself
as a Paterson police officer, used this authority to lure the victim into
his car. He then drove the victim to a secluded area where he
sexually assaulted her. Muhammad, supra, 182 N.J. at 559. After the assault, defendant
took the victim to the Paterson police headquarters. Once there, defendant identified himself
as a police officer to the desk sergeant, and claimed that he had
"brought [the victim] in" because she had been harassing his brother and sister.
The victim immediately denied these allegations, accused defendant of sexually assaulting her, and
produced the condom defendant had allegedly used during the assault as proof of
her claims. Id. at 560-61.
At the trial, during opening and closing remarks, defense counsel argued to the
jury that the victim was a prostitute, and the sexual encounter was consensual.
Defendant did not testify. Id. at 562. As part of the State's case-in-chief,
the prosecutor called the desk sergeant, who testified not only about the statements
defendant made to him, but also about the lack of any mention by
defendant that he had engaged in consensual sex with the victim. Specifically, the
prosecutor focused his questions to highlight defendant's failure to characterize the victim as
a prostitute. Id. at 562-63. The prosecutor emphasized this latter point during his
closing argument to the jury.
Writing for the majority of the Court, Justin Albin concluded that the prosecutor's
repeated references to defendant's failure to mention any facts that supported his ultimate
defense strategy, "'at or near' the time of his arrest," constituted an unconstitutional
infringement upon defendant's privilege against self-incrimination. Id. at 573-74.
We cannot accept the State's depiction of the prosecutor's remarks as merely highlighting
the inconsistency between defendant's statement at police headquarters and the defense advanced by
his attorney. In assailing defendant's consent defense, the prosecutor's leitmotif was defendant's silence
at police headquarters. The prosecutor was entitled to let the jury know that
defendant's claim to the police that he picked [the victim] up for harassment
stood in stark contrast to his attorney's trial argument of a consensual sexual encounter.
However, the prosecutor went far beyond pointing out that significant inconsistency; instead the
prosecutor called for the jury to reject the consent defense because defendant remained
silent when he had the opportunity to present it to the police. Here,
the prosecutor's thrust was that both before and after [the victim] accused him
of rape, defendant did not give to the police the exculpatory account that
his counsel provided to the jury. In other words, the prosecutor impaled defendant
on his silence, intimating that an innocent man would not have stopped speaking
to the police officers, but would have revealed to them the defense offered
as truth at trial. We conclude that the prosecutor elicited testimony and commented
on defendant's silence at police headquarters to impugn his defense at trial.
[Id. at 566-67 (emphasis added) (footnote omitted).]
The Court, however, acknowledged that a defendant's statements or inconsistencies, "'at or near'
the time of his arrest," are, nevertheless, proper areas of prosecutorial inquiry. Id.
at 566 n. 3.
Here, although some of the prosecutor's questions came dangerously close to crossing the
line of demarcation between proper impeachment of defendant's credibility, and unconstitutional comments on
his right to remain silent, the thrust of the interrogation stayed within the
boundaries of proper cross-examination. The following exchange between the prosecutor and defendant illustrates
this point:
Q. In fact, Officer Uram, after he advised you of your rights, you didn't
say anything else to him --
A. I did. I was trying to talk to him.
Q. -- about what happened in the store? Isn't that correct?
A. I did. I tried to talk to him, but he wouldn't listen to
me.
Q. You're saying that Officer Uram, after he was trying to get you to
talk about where this gun was, that he just didn't want to hear
anything else from you? Is that what your testimony is?
A. Yes.
Q. Isn't it true that on March 24th, 2003, you said that you --
a gun was pointed at you by [co-defendant], correct?
A. Yes.
Q. Has that ever happened to you before?
A. No.
Q. A gun being pointed at you?
A. No.
Q. Was this the first time on March 24th, 2003?
A. Yes.
Q. But you never decided to tell Officer Uram on March 24th, 2003 about
that, correct?
A. I did tell him.
* * * *
Q. Isn't it true that you, at first, did not want to tell Officer Uram anything about a gun?
A. Yes, I thought they were going to bring [co-defendant] with me. I thought
they were going to put us together.
Q. But the fact that a gun was pointed at you, you didn't think
that that was important to tell the police officer while you were in
his custody, in the back of his car, alone?
[Although the trial court overruled defense counsel's timely objection, the prosecutor did not
secure an answer to this question from defendant .]
Q. So when the Police Officer Uram had you in his custody, again, you did not tell him anything about the fact that a gun had just been pointed to your head?
A. I did. I tried to tell him, he wouldn't listen to me.
As this excerpt from the State's cross-examination reveals, defendant repeatedly asserted that he
attempted to tell the arresting officer what had occurred inside the store, as
evidencing his lack of volition to commit any criminal act. Unlike what occurred
in Muhammad, what makes this line of inquiry proper, is that defendant affirmatively
testified at trial that he had mentioned the details of his duress defense
to the arresting officer.
Through its cross-examination, the State was not casting a shadow of culpability based
on defendant's post-arrest silence at the scene. Under these circumstances, the prosecutor was
properly attacking defendant's credibility by suggesting to the jury that his trial testimony
was inconsistent with the events described by the arresting officer.
We hold, however, that at this juncture in the trial, and as part
of its overall charge on the law, the trial court should have reminded
the jury, using clear and emphatic language, that (1) defendant had the right
to remain silent; and (2) no inference of culpability should be drawn from
his exercise of that right. Absent such instructions, a jury may improperly conclude
that defendant had a duty to come forward with information supporting his duress-defense,
at or near the time of his arrest, and that his failure to
do so should be considered against him in weighing his overall credibility. This
would be precisely the type of unconstitutional inference the Supreme Court found improper
in Muhammad.
Because defendant did not request such a charge here, we must review any
alleged error in this respect under the plain error standard of review. R.
2:10-2. "Under that standard, we disregard an error unless it is 'clearly capable
of producing an unjust result.'" State v. Daniels,
181 N.J. 80, 95 (2004)
(quoting R. 2:10-2). Given the substantial evidence presented, we cannot conclude that the
absence of such an instruction constitutes plain error.
Conclusion
Defendant's conviction is affirmed. The matter is remanded for the trial court to conduct a new hearing with respect to the admissibility of defendant's statements to the police.
______________________________
WECKER, J.A.D., dissenting.
I respectfully dissent because I disagree with my colleagues with respect to both
of the significant issues raised by this appeal. First, I conclude that reversal
is compelled by State v. Muhammad,
182 N.J. 551, 565-66 (2005), State v.
Lyle,
73 N.J. 403, 406 n.1, 407 n.4, 408 n.5, 410 (1977), and
State v. Deatore,
70 N.J. 100, 107, 115-16 (1976). Second, apart from the
fact that the violation of defendant's right against self-incrimination compels a new trial,
I would not find error in the admission of defendant's statement to the
police, and therefore no reason to remand for a hearing on the adequacy
of the Miranda warnings he received.
See footnote 5
In my view, the prosecutor violated defendant's right against self-incrimination when she cross-examined him respecting his alleged failure to give the arresting officer the exculpatory explanation he offered to the jury in support of his duress defense — that co-defendant Samha forced him at gunpoint to participate in the robbery. See Muhammad, supra, 182 N.J. at 565-66 ("Making reference at trial to what a defendant did not say to the police is commenting on his silence.") (citing Lyle, supra, 73 N.J. at 406 n.1, 407 n.4, 408 n.5, 410, and Deatore, supra, 70 N.J. at 107, 115-16). Neither federal law under the due process clause of the Fifth Amendment, nor New Jersey common law, permits a defendant's post-arrest silence to be used to impeach that defendant's testimony at trial. Muhammad, supra, 182 N.J. at 568 (citing Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245, 49 L. Ed.2d 91, 98 (1976) See footnote 6 ); see also Deatore, supra, 70 N.J. at 108-09, 113.
Here, the arresting officer, Officer Uram, testified in the State's case-in-chief about his initial questions to defendant:
Q Officer Uram, you said that you were at the car, you advised him of his rights again, and based on the information that you received, you had a conversation with Mr. Elkwisni with the public safety in mind.
A I asked him whether, you know, he hid the gun in the
store or anything to that nature and first he denied, no, no, no,
but he was looking around. He kept looking right to left and appeared
very nervous. I just kept talking to him, kept talking to him, and
eventually he said — eventually he goes, "it's behind the Huggies." And I said,
"where's that?" And he said "the back aisle."
Notably, according to Officer Uram, what defendant initially denied was "whether . .
. he hid the gun in the store or anything to that nature
. . . ."
See footnote 7
The prosecutor then misstated the officer's prior answer:
Q So when he first told you that there was no gun, what
was — how long did it take for him to actually say that there
was a gun? Like how long was this conversation is what I'm getting
at?
A I believe it was only a few minutes. I honestly don't recall
how long it was.
The offending cross-examination of defendant began with the prosecutor's question about defendant's "silence"
immediately before his arrest:
Q Isn't it true that you did not — when the police arrived, did
you run to the — to the front door and say, thank God you're
here, I'm a prisoner in this store?
DEFENDANT'S COUNSEL: Objection, Your Honor.
THE COURT: It's cross-examination. I'll allow it.
DEFENDANT'S COUNSEL: No, Your Honor, there's no testimony to that. That's just —
THE COURT: I'll allow it. Overruled.
BY PROSECUTOR:
Q Isn't it true you didn't go to the front door?
A I couldn't, [Samha] was standing right in front of me.
The prosecutor's questions continued regarding defendant's post-arrest silence:
Q Isn't it true that when you were arrested and handcuffed, you were
placed inside of a police vehicle in the back of the police vehicle,
correct?
A Yes.
Q And Officer Uram advised you of your Miranda rights and he asked
you about the gun, correct?
A No.
Q And isn't it true that you weren't cooperative on March 24th, 2003?
DEFENDANT'S COUNSEL: Objection, Your Honor.
A Yes, I was.
THE COURT: Once again, overruled. I'll allow it as cross-examination.
PROSECUTOR:
Q Isn't it true that when Officer Uram asked you, there was a
gun involved, where is the gun; isn't it true that your response was,
no, there was no gun?
A No.
DEFENDANT'S COUNSEL: Objection, Your Honor.
THE COURT: Overruled. I will allow it. The jury will make the determination
based upon the total testimony of both witnesses.
PROSECUTOR:
Q Isn't it true that Officer Uram then told you about the fact
that the Bob's Market, that many children enter the Bob's Market and they
could get hurt with this gun?
DEFENDANT'S COUNSEL: Objection, Your Honor. Now she's recounting and actually saying —
THE COURT: Sustain the objection. He happened to be in court the whole
time,[
See footnote 8
] but I will sustain the objection.
PROSECUTOR:
Q Isn't it true that your first response to Officer Uram was that
you didn't know where the gun was, and you had — and there was
no gun involved?
A No.
Q It was only after Officer Uram asked you some more questions that
you finally said where the gun was.
A I told him where it was.
Q And didn't you tell him that it was behind the Huggies in
the last aisle?
A Yes.
Q Now you stated that throughout the entire time, the gun was being
handled by Ibrahim Samha, correct?
A Yes.
Q But, yet, you knew where that gun had been hidden, and you
told Officer Uram, correct?
A Yes.
Q And you testified that, in fact, you were separated and placed in
two different police vehicles, correct?
A Yes.
Q In fact, Officer Uram, after he advised you of your rights, you
didn't say anything else to him —
A I did. I was trying to talk to him.
Q — about what happened in the store? Isn't that correct?
A I did. I tried to talk to him, but he wouldn't listen
to me.
Q You're saying that Officer Uram, after he was trying to get you
to talk about where this gun was, that he just didn't want to
hear anything else from you? Is that what your testimony is?
A Yes.
Q Isn't it true that on March 24th, 2003, you said that you
— a gun was pointed at you by Ibrahim Samha, correct?
A Yes.
Q Would you consider that significant?
DEFENDANT'S COUNSEL: Objection, Your Honor.
THE COURT: I don't know if I understand.
PROSECUTOR:
Q Something like [that] happening to you?
THE COURT: Sustain the objection.
A I never been involved —
THE COURT: Sustained. You don't have to answer the question. Sustain the objection.
PROSECUTOR:
Q Has that ever happened to you before?
A No.
Q A gun being pointed at you?
A No.
Q Was this the first time on March 24th, 2003?
A Yes.
Q But you never decided to tell Officer Uram on March 24th, 2003
about that, correct?
A I did tell him.
DEFENDANT'S COUNSEL: Objection, Your Honor. He testified that he did —
THE COURT: Sustain the objection.
PROSECUTOR:
Q Well, isn't it true that, at first, you didn't want to tell
Officer Uram where that gun was?
DEFENDANT'S COUNSEL: Objection, Your Honor. He testified already, now it's just —
A I wasn't paying attention to what he was saying.
THE COURT: Overruled. I'll allow that question.
PROSECUTOR:
Q Isn't it true that you, at first, did not want to tell
Officer Uram anything about a gun?
A Yes, I thought they were going to bring him with me. I
thought they were going to put us together.
Q But the fact that a gun was pointed at you, you didn't
think that that was important to tell the police officer while you were
in his custody, in the back of his car, alone?
DEFENDANT'S COUNSEL: Objection, Your Honor. She's asking —
THE COURT: Overruled. I'll allow it. As part of cross-examination, you're allowed a
little bit more leeway.
DEFENDANT'S COUNSEL: Your Honor, the objection is to opinion. She's asking whether he
feels it was important.
THE COURT: No. I'll allow it. Overruled.
DEFENDANT'S COUNSEL: Okay.
After additional questions that established that after defendant's arrest he was physically separated
from Samha, the prosecutor returned to the interrupted questioning:
Q Okay. So, according to you, Ibrahim Samha has now pointed the gun
at Mr. Darwish and you.
A Yes.
Q So was that traumatic for you, the fact that a gun, for
the first time, was being pointed to the back of your head?
A Yes.
DEFENDANT'S COUNSEL: Objection, Your Honor. She's asking for opinion testimony again.
THE COURT: I'll allow it as to it's part of his defense. Overruled.
PROSECUTOR:
Q Was that traumatic for you?
A Of course. I was afraid of him.
Q So when the Police Officer Uram had you in his custody, again,
you did not tell him anything about the fact that a gun had
just been pointed to your head?
A I did. I tried to tell him, he wouldn't listen to me.
The circumstances in Lyle were remarkably similar to those we address here, and
the Court found that it was compelled by Doyle and Deatore to reverse
the defendant's conviction for first-degree murder. Lyle, supra, 73 N.J. at 405. Confronted
at the scene, Lyle immediately admitted that he shot the victim, but later
claimed the shooting was in self-defense and so testified at trial. The prosecutor
elicited direct testimony from the investigating officer that defendant immediately said "I shot
him," but said nothing about the victim having been the aggressor. Id. at
406. The prosecutor cross-examined the defendant about his post-arrest omission, that is, his
failure to tell the investigating officer that he shot the victim in self-defense.
Id. at 408 and n.5. Finally, the prosecutor argued in summation that the
earlier omission suggested that defendant was now lying. Id. at 409. Just like
defendant here, Lyle insisted, in answer to the prosecutor's questions, that on the
way to the police station, he did tell a detective that the victim
had attacked him. 73 N.J. at 408 n. 5. Defense counsel did not
object to the cross-examination or summation; the Court found plain error and reversed.
Id. at 409-10.
Noting that the record was in conflict as to whether Lyle knew or
understood his Miranda rights when he was arrested, the Court in Lyle also
noted that under Deatore,
as a matter of State law the use of a defendant's silence is
improper irrespective of whether such warnings are given. Hence, in the case before
us it was manifestly improper to use defendant's silence to attack his self-defense
theory as a fabrication.