Police Are Trained to Draw Out Confessions in Suspects, Always Ask for A Lawyer Upon Questioning
Appellate Docket No.: A-1339-18
Decided July 16, 2021
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
In a recent unpublished opinion, the Appellate Division of New Jersey reviewed whether a robbery conviction was proper after defendant confessed after a four hour break in questioning and the defendant’s recorded phone calls from the jail were admitted into evidence.
In State v. Malone, defendant and three codefendants executed a planned robbery, resulting in a victim being shot and killed. Defendant was arrested with two of his codefendants after McMorrow stopped a 2004 Jeep, Freedom Edition, with distinctive chrome roof-racks and running boards, that looked similar to a vehicle seen on surveillance footage near the crime scene.
McMorrow placed defendant in a BCPO interview room at 1:51 p.m., activated a recording device and then left the interview room to bring defendant water he had requested.
McMorrow returned at about 2:11 p.m. with Kahn and a water bottle for defendant. Although McMorrow testified the Miranda rights form which he read to defendant could not be located at the time of the hearing, the judge “observe[d on the videotape] defendant reading, initialing and signing the writing purporting to be the . . . form situated on the desk in the interview room.”
At 2:20 p.m., general questions followed until about 3:04 p.m. when McMorrow informed defendant about the homicide investigation; defendant denied any involvement in the crime. Defendant requested a bathroom break at approximately 3:07 p.m. Breaks in questioning occurred at about 3:39 p.m., during which defendant was left alone in the room for approximately five minutes, and at 3:58 p.m., during which defendant used the restroom. Following the last break, defendant remained alone in the interview room until 5:12 p.m., when McMorrow returned to the interview room and informed defendant he was going to be taken to the Bergen County Sheriff’s Department in Hackensack for the execution of a search warrant for buccal swab samples, fingerprints and photographs.
On the return trip to the BCPO, McMorrow picked up fast food at a drive-through window and returned defendant to the BCPO interview room at 8:20 p.m. McMorrow activated the video-recording device; the two ate their meals. McMorrow testified he did not discuss the case with defendant to, from or at the Sheriff’s Office, but began to discuss it toward the end of their meal.
At 8:42 p.m., defendant admitted participating in the robbery but denied possessing a weapon or recollecting a shooting. The detectives left defendant alone in the interview room at 9:03 p.m., returning forty-five minutes later to resume questioning, during which defendant acknowledged “someone . . . provided the information that a card game was occurring where $10,000 would be available to be stolen” and that “he had a black handgun with him when he entered the apartment building, although he did not shoot the victim.”
Defendant admitted striking Erick with a pistol to render him compliant during the robbery.
Defendant made a motion to suppress the statement, arguing that the gap in time between defendant being read his Miranda rights and the confession was too great, and defendant did not knowingly and voluntarily waive his rights. The trial court disagreed, finding defendant’s demeanor and the totality of the circumstances suggest defendant was calm and not nervous or jittery, which would have demonstrated a possible forced confession.
Recordings were admitted over defendant’s objection of his recorded phone calls made from the jail, providing details of the robbery. The trial court found that despite the subpoena of the phone calls not being available, these recordings could still be used. Defendant also claimed hearsay, but the court admitted it over objection on those grounds as well.
Defendant was convicted by jury of second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2(b)(2) (count one); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count two); second-degree burglary, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:18-2 (count three); first-degree robbery, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1 (counts four, five, six, seven, eight, and ten); first-degree murder, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:11-3(a)(1), (2) (count eleven); first-degree felony murder (burglary), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:11-3(a)(3) (count twelve); first-degree felony murder (robbery), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:11-3(a)(3) (count thirteen); second-degree possession of a weapon for an unlawful purpose (handgun), N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(a) (count seventeen); second-degree unlawful possession of a weapon (handgun without the requisite permit, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-5(b) (count eighteen); and third-degree hindering apprehension, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:29- 3(b)(1) (count twenty-two).
Defendant appealed, and the Appellate Division affirmed the trial court’s evidentiary rulings with regard of the confession, and telephone recordings, for the same reasons provided by the court.
This case is important to understand that police are trained to draw out confessions in suspects. Hours had passed since defendant was read his Miranda rights, he was given water, several breaks, and the officer even purchased him fast food and his confession was made after they ate food without the officer even asking, all in order to make defendant feel comfortable. Never give the opportunity to make a confession. Always ask for a lawyer upon questioning.
What’s more, the defendant’s phone calls from the jail were used against him. Remember, the calls from the jail are always recorded and always monitored. Any statement can and will be used against an accused. Do not discuss any details of the matter and hire an attorney right away.
If you or someone you know have been charged with any indictable offense or disorderly persons involving a search and/or questioning of police, contact the experienced attorney at Hark & Hark to ensure you are adequately defended, otherwise you could have negative impacts on your case like the defendant above.
At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.
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