SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. Michael Tucker (A-6-2006)

[NOTE: This is a companion case to State v. Brown and State v. Elkwisni , also decided today.]

Argued November 14, 2006 – Decided April 17, 2007

WALLACE, J., writing for a unanimous Court.
    In this appeal the Court considers whether the prosecutor’s comments on Michael Tucker’s failure to include certain information in his initial statements to police violated Tucker’s right to remain silent.
    On June 11, 2000, Michael Tucker called 9-1-1 and reported he had returned home to discover his mother’s dead body. Piscataway police responded and found the lifeless body of Mary Tucker. Police inspected the house and found no evidence of a struggle or forced entry.
    Police questioned both Tucker and his girlfriend, Tracy Stepney, who also was present. Tucker stated that he last saw his mother on Friday, June 9. He claimed he drove her to the grocery store and then left to spend the weekend with Stepney in Plainfield. On Saturday, he and Stepney went to New York City for the day. On Sunday afternoon, they returned to his mother’s home and found her lifeless body. Tucker claimed he found the back door unlocked. Stepney gave a similar statement.
    Police escorted Tucker to headquarters where they administered Miranda warnings. At some point, Tucker was arrested on unrelated outstanding warrants. Tucker reiterated that he last saw his mother on Friday following their trip to the grocery store. He did not mention that he had taken his mother to the bank.
    Meanwhile, the police investigation revealed the victim’s purse in a bedroom closet containing $747 in cash and a checkbook with the last entry made out to cash in the amount of $3,000. Police learned that the victim cashed a check at the United National Bank in Plainfield on Friday, June 9, and received thirty $100 bills.
    In a second interview at police headquarters, Tucker acknowledged that he had taken his mother to the bank, but claimed he waited for her in the car. Tucker claimed that the $520 in his pocket, which included five $100 bills, was money he earned repairing cars.
    Police later obtained a bank surveillance tape that showed the victim entering the bank on Friday, June 9. The tape also revealed that Tucker was present in the bank and stood behind his mother as she spoke to the bank teller. Tucker wore denim shorts that police later discovered in Stepney’s apartment. Blood tests conducted on stains found on the shorts revealed that some of the blood was the victim’s, some was defendant’s, and some was of an unknown third person.
    Police charged Tucker with purposeful or knowing murder, felony murder, armed robbery, and possession of a weapon. At trial, the State offered Tucker’s several statements and presented evidence that the last message on the victim’s telephone answering machine was from a person seeking to collect a hospital debt owed by Tucker in the amount of $1,594. The prosecutor emphasized that in his first two statements, Tucker made no mention of having taken his mother to the bank. Tucker did not testify or present any witnesses. The jury was unable to reach a verdict on the charge of purposeful or knowing murder, but found Tucker guilty of the remaining charges. Tucker was sentenced to a life term with thirty years of parole ineligibility.
    Tucker appealed. In an unpublished, per curiam opinion, the Appellate Division reversed and remanded for a new trial. The panel ruled that it was error for the trial court to admit evidence that Tucker owed a debt to the hospital, but declined to decide whether a new trial should be ordered based on that error alone. The panel also concluded that it was reversible error for the prosecutor to comment that Tucker did not tell the police in his first statements that he took his mother to the bank. The Supreme Court granted the State’s petition for certification.
HELD: The prosecutor’s comments about inconsistencies in Tucker’s statements did not constitute an unconstitutional comment on silence.
1. The State argues that when a suspect waives his privilege to remain silent and speaks to the police, disclosing new information in several statements, the gaps in those statements are not protected silence. The State also urges that when a suspect is given his Miranda rights and elects to give multiple statements, it is not commenting on silence for the State to point out inconsistencies in the statements. In contrast, Tucker argues that the prosecutor’s use of any differences in his statements violated his right against self-incrimination as this Court held in State v. Muhammad, 182 N.J. 551 (2005), because the prosecutor was commenting on silence “while in custody, during interrogation, or at or near the time of his arrest.” He contends that under established law, facts omitted from a statement are the same as the exercise of the right to remain silent, and therefore, the omissions are not admissible for any purpose. (pp. 6-7)
2. The United States Supreme Court addressed an analogous issue in Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65 L. Ed.2d 222 (1980). There, the defendant’s testimony at trial differed from his earlier statement. The Court held that the prohibition against the use of defendant’s silence after Miranda warnings are given “does not apply to cross-examination that merely inquires into prior inconsistent statements.” The Court is in agreement with the reasoning in Anderson. When a defendant agrees to give a statement, he or she has not remained silent, but has spoken. Although the present case does not involve inconsistencies between a statement and Tucker’s testimony at trial, it does involve inconsistencies in several statements that were freely given and admitted into evidence. The Court finds no meaningful distinction between the two situations that would justify a different result. In both instances, a defendant has waived the right to remain silent and freely spoken. (pp. 7-9)
3. Balancing the right to remain silent against the State’s right to fairly impeach different statements is a delicate task. In Muhammad, the Court struck the balance in favor of the defendant and concluded that “a suspect who begins to speak to the police while in custody, during interrogation, or at or near the time of arrest does not waive his right against self-incrimination when he falls silent.” Here, Tucker did not remain silent, but freely related different stories to the police. Under these circumstances, the Court strikes the balance in favor of the State. (pp. 9-10)
4. The use of such evidence is limited to issues of credibility and not substantive evidence on the issue of guilt. In the present case, no limiting instruction was given and the jury could have used the evidence substantively to find Tucker guilty. Because Tucker did not object to the trial court’s failure to give a limiting instruction, the plain error standard applies. Even with the comments of the prosecutor and the testimony of the police officers concerning the discrepancies in Tucker’s statements, the evidence of the bank surveillance tape that depicted Tucker standing behind his mother in the bank clearly contradicted his statement that he was not in the bank. Whether or not the prosecutor commented on Tucker’s omissions, the surveillance tape presented strong evidence that impeached portions of Tucker’s statements. Thus the credibility of Tucker’s statements was clearly at issue. Under those circumstances, the Court is convinced that the failure to give a limiting instruction could not have caused the jury to reach a result it would not have otherwise reached. (p. 11)
5. The Appellate Division also found error in the admission of the evidence that Tucker owed a debt, reasoning that the jury could have drawn an impermissible inference that Tucker’s lack of money and lack of employment led him to commit the crime in question. Because the panel did not determine whether that error, standing alone, would warrant a new trial, the Court must remand for the Appellate Division to determine whether the admission of this evidence requires a new trial. (p. 12)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate Division for further proceedings consistent with this opinion.
     CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS join in JUSTICE WALLACE’s opinion.

SUPREME COURT OF NEW JERSEY
A- 6 September Term 2006


STATE OF NEW JERSEY,

    Plaintiff-Appellant,

        v.

MICHAEL TUCKER,

    Defendant-Respondent.

Argued November 14, 2006 – Decided April 17, 2007

On certification to the Superior Court, Appellate Division.

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for appellant (Bruce J. Kaplan, Middlesex County Prosecutor, attorney).

Alison S. Perrone, Designated Counsel, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).

    JUSTICE WALLACE, JR., delivered the opinion of the Court.

    Following the tragic death of his mother, defendant gave several statements to the police. In his initial statement, defendant did not include relevant information that he revealed in subsequent statements or that the police later discovered. At trial, defendant’s several statements were admitted into evidence, and the prosecutor was allowed to comment on the discrepancies in those statements. On appeal, the Appellate Division reversed, concluding that those comments were prohibited uses of defendant’s right to remain silent. We disagree. We hold that the prosecutor’s comments on the differences in defendant’s post-Miranda See footnote 1 statements are not violations of the proscription against the use of defendant’s silence “‘at or near’ the time of arrest, during official interrogation, or while in police custody.” State v. Muhammad, 182 N.J. 551, 569 (2005) (citations omitted).

I.
    On June 11, 2000, defendant, Michael Tucker, called 9-1-1 and reported that he had returned home to discover his mother’s dead body. The Piscataway police responded to the home and found the lifeless body of Mary Tucker. Patrolman James Richards inspected the house and found no evidence of a struggle or forced entry.
    Richards questioned both defendant and his girlfriend, Tracy Stepney, who also was present. Defendant stated that he last saw his mother two days earlier on Friday, June 9, 2000. Defendant drove his mother home from the grocery store and then left to spend the weekend with Stepney in Plainfield. On Saturday, he and Stepney went to New York City for the day. On Sunday afternoon, they returned to his mother’s home and found her lifeless body. Defendant claimed he also found the back door unlocked. In a separate interview, Stepney provided a similar account, also mentioning that the back door was unlocked.
    The police transported defendant to police headquarters where they administered Miranda warnings. At some point, the police arrested defendant on unrelated outstanding warrants. The record does not reveal whether he was arrested before or after he was given Miranda warnings and agreed to speak to the police. However, he reiterated that he last saw his mother on Friday following their trip to the grocery store. Defendant did not mention that he had taken his mother to the bank in either of his statements.
    Meanwhile, the police investigation revealed the victim’s purse in a bedroom closet containing $747 in cash and a checkbook with the last entry made out to cash in the amount of $3000. The police learned that the victim cashed a check at the United National Bank in Plainfield on Friday, June 9, and that she received thirty $100 bills.
    In a second interview of defendant at police headquarters, the police again informed defendant of his Miranda rights and interviewed him. On that occasion, defendant acknowledged that he had taken his mother to the bank, but claimed that he waited for her in the car. Defendant explained that the $520 in his pocket was money he earned repairing cars. He displayed five $100 bills and one $20 bill.
    The police later obtained a bank surveillance tape that showed the victim entering the bank at approximately 9:25 a.m. on June 9, 2000. The tape also revealed that defendant was present and stood behind his mother as she spoke to the bank teller. He wore denim shorts that the police later discovered in Stepney’s apartment. Blood tests conducted on stains found on the shorts revealed that some of the blood was the victim’s, some was defendant’s, and some was of an unknown third person.
On November 29, 2000, the police charged defendant with purposeful or knowing murder, felony murder, armed robbery, and possession of a weapon with the purpose to use it unlawfully against another person. At trial, the State offered into evidence defendant’s several statements and presented evidence that the last message on the victim’s telephone answering machine was from a person seeking to collect a hospital debt owed by defendant in the amount of $1594.
Specifically, in respect of the issues in this appeal, the State emphasized the following in its opening statement:
You’re going [to] hear testimony in this courtroom regarding some things that Michael Tucker said to law enforcement. See, when he spoke to them he said that he took his mother to the Pathmark, and that is true, but he didn’t tell anybody that he went to the bank in the beginning. It wasn’t until law enforcement found out that he went to the bank that he started telling stories and telling people that he did in fact go to the bank. But there will be more testimony regarding his story about going to the bank. Pay close attention to that and I will revisit that issue in my closing argument.

Later, the prosecutor elicited testimony from Patrolman Richards, Detective Mostowski, and Investigator Janowiak that when defendant was initially questioned at the scene and again at the police station, he said nothing about taking his mother to the bank. During summation, the prosecutor stressed that defendant failed to mention the bank in his first two statements.
Defendant did not testify or present any witnesses. The jury was unable to reach a verdict on the murder charge, but found defendant guilty of the remaining charges. The trial court merged the convictions into the felony murder charge, and sentenced defendant to a life term with thirty years of parole ineligibility.
Defendant appealed. In an unpublished, per curiam opinion, the Appellate Division reversed and remanded for a new trial. The panel ruled that it was error for the trial court to admit evidence that defendant owed a debt to the hospital, but declined to decide whether a new trial should be ordered based on that error alone. The panel also concluded that it was reversible error for the prosecutor to comment that defendant did not tell the police in his first statement that he took his mother to the bank, and in his second statement that he entered the bank with his mother. The panel reasoned that the prosecutor’s comments violated our recent decision in Muhammad, supra, in which we held that the State may not comment on a defendant’s silence “while in custody, under interrogation, or ‘at or near’ the time of his arrest.” 182 N.J. at 558. We granted the State’s petition for certification. 187 N.J. 81 (2006).
II.
    The State argues that when a suspect waives his privilege to remain silent and speaks to the police, disclosing new information in several statements, the gaps in those statements are not protected silence. The State contends that because defendant chose not to be silent, our recent decision in Muhammad does not control this case. Furthermore, the State urges that when a suspect is given his Miranda rights and elects to give multiple statements, it is not commenting on silence for the State to point out inconsistencies in the statements. The State also cites State v. Boretsky, 186 N.J. 271 (2006), contending that the interview of defendant after police responded to defendant’s 9-1-1 call was outside the scope of defendant’s constitutional protections.
    In contrast, defendant urges that the prosecutor’s use of any differences in his statements violated his state constitutional right against self-incrimination as this Court held in Muhammad, supra, because the prosecutor was commenting on his silence “while in custody, during interrogation, or ‘at or near’ the time of his arrest.” 182 N.J. at 568. He contends that under established law, facts omitted from a statement are the same as the exercise of the right to remain silent, and therefore, the omissions are not admissible for any purpose. Further, defendant observes that Boretsky does not apply here because the police arrived at the scene to investigate the circumstances surrounding the death, not to provide emergency medical assistance, which was the foundation of Boretsky.
III.
    Preliminarily, we note that we agree with defendant that this case does not call for the application of the principles articulated in Boretsky. In that case, we held that in an emergency situation, it is not a violation of Miranda to ask questions “to obtain information about the victim to help in the assessment of her condition,” without first giving the defendant Miranda warnings. Boretsky, supra, 186 N.J. at 282. In the present case, the police were confronted with a tragic non-emergent situation, that is, the need to investigate a murder. Under these circumstances, the exception for emergency medical assistance does not apply.
Defendant contends it was a violation of his right to remain silent for the prosecutor to comment on the differences in his statements. The United States Supreme Court addressed an analogous issue in Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65 L. Ed.2d 222 (1980). There, the defendant’s testimony at trial differed from his earlier statement. Id. at 405-06, 100 S. Ct. at 2180-81, 65 L. Ed. 2d at 224-25. The Court held that the prohibition against the use of defendant’s silence after Miranda warnings are given “does not apply to cross-examination that merely inquires into prior inconsistent statements.” Id. at 408, 100 S. Ct. at 2182, 65 L. Ed. 2d at 226. The Court reasoned that such cross-examination “makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.” Ibid. The Court recognized that, although “two inconsistent descriptions of events may be said to involve ‘silence’ insofar as it omits facts included in the other version,” it was not prepared to adopt such a “formalistic understanding of ‘silence.’” Id. at 409, 100 S. Ct. at 2182, 65 L. Ed. 2d at 227.
    We are in accord with the reasoning in Anderson. A defendant’s right to remain silent is not violated when the State cross-examines a defendant on the differences between a post-Miranda statement and testimony at trial. When a defendant agrees to give a statement, he or she has not remained silent, but has spoken. Thus, we conclude that it is not an infringement of a defendant’s right to remain silent for the State to point out differences in the defendant’s testimony at trial and his or her statements that were freely given. See State v. Cabral, 881 A.2d 247, 254-55 (Conn.), cert. denied, ____ U.S. ____, 126 S. Ct. 773, 163 L. Ed.2d 600 (2005); MacDonald v. State, 816 A.2d 750, 753-54 (Del. 2003); Lopez v. United States, 801 A.2d 39, 47 n.16 (D.C. 2002); Trice v. State, 766 N.E.2d 1180, 1183-84 (Ind. 2002).
Although the present case does not involve inconsistencies between a statement and defendant’s testimony at trial, it does involve inconsistencies in several statements that were freely given and admitted into evidence. We find no meaningful distinction between the two situations that would justify a different result. In both instances, a defendant has waived the right to remain silent and freely spoken.
Balancing the right to remain silent against the State’s right to fairly impeach different statements is a delicate task. In Muhammad, supra, we struck the balance in favor of the defendant and concluded that “[a] suspect who begins to speak to the police while in custody, during interrogation, or ‘at or near’ the time of his arrest does not waive his right against self-incrimination when he falls silent – the words he could have spoken cannot be used against him.” 182 N.J. at 568 (citations omitted). Here, however, defendant did not remain silent, as he had a right to do. Defendant’s several statements were admitted into evidence and there is no claim that it was error to do so. Defendant was not obligated to give the subsequent statements that either omitted key aspects of where he had taken his mother or contained assertions that were contradicted by other evidence. The fact is, defendant did not remain silent, but freely related different stories to the police. Under these circumstances, we strike the balance in favor of the State. We conclude that the State’s pointing out of inconsistencies in defendant’s statements and other evidence at trial did not constitute an unconstitutional comment on silence.
We hold that whether the asserted inconsistencies by a defendant are between two or more statements or between a statement and testimony at trial, the State may seek to impeach the validity of those statements. In both instances, the defendant has not remained silent and therefore, any inconsistency may be challenged.
IV.
We have consistently limited the use of such evidence to issues of credibility and not substantive evidence on the issue of defendant’s guilt or innocence. State v. Brown, ____ N.J. _____, ____ (2007) (slip op. at 18). In the present case, no limiting instruction was given and the jury could have used the evidence substantively to find defendant guilty. Because defendant did not object to the trial court’s failure to give a limiting instruction, we address the issue under the plain error standard. R. 2:10-2.
    Even without the comments of the prosecutor and the testimony of the police officers concerning the discrepancies in defendant’s statements, the evidence of the bank surveillance tape that depicted defendant standing behind his mother inside the bank clearly contradicted defendant’s statement that he was not in the bank. Whether or not the prosecutor commented on defendant’s omissions, the surveillance tape presented strong evidence that impeached portions of defendant’s statements. Thus, the credibility of defendant’s statements was clearly at issue. Under those circumstances, we are convinced that the failure to give a limiting instruction could not have caused the jury to reach a result it would not have otherwise reached. R. 2:10-2.
V.
    The Appellate Division panel also found error in the admission of the evidence that defendant owed a debt and reasoned that “the unemployment testimony naturally buttressed the debt testimony in such a way that the jury could easily draw the impermissible inference that defendant’s lack of money and lack of employment led him to commit the crime in question.” However, the panel did not determine whether that error, standing alone, would warrant a new trial. Consequently, we remand to the Appellate Division to determine whether the improper admission of the debt evidence by itself requires a new trial.
VI.
    The judgment of the Appellate Division is reversed. We remand to the Appellate Division for further proceedings consistent with this opinion.
    CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO, and HOENS join in JUSTICE WALLACE’s opinion.

    SUPREME COURT OF NEW JERSEY

NO.     A-6    SEPTEMBER TERM 2006

ON CERTIFICATION TO Appellate Division, Superior Court    

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

        v.

MICHAEL TUCKER,

    Defendant-Respondent.

DECIDED April 17, 2007
    Chief Justice Zazzali    PRESIDING
OPINION BY Justice Wallace, Jr.    
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY     

CHECKLIST  

REVERSE AND REMAND       CHIEF JUSTICE ZAZZALI   X       JUSTICE LONG   X       JUSTICE LaVECCHIA   X       JUSTICE ALBIN   X       JUSTICE WALLACE   X       JUSTICE RIVERA-SOTO   X       JUSTICE HOENS   X       TOTALS   7      

Footnote: 1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).