                          RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-5706-14T3

STATE OF NEW JERSEY,

     Plaintiff-Appellant,

v.

S.S.,

     Defendant-Respondent.


         Argued December 9, 2015 – Decided March 14, 2016

         Before Judges Alvarez and Manahan.

         On appeal from the Superior Court of New
         Jersey,   Law   Division,  Hudson County,
         Indictment No. 09-12-2040.

         John   R.  Mulkeen,   Assistant Prosecutor,
         argued the cause for appellant (Esther
         Suarez, Hudson County Prosecutor, attorney;
         Mr. Mulkeen, on the brief).

         Joseph J. Russo, Deputy Public Defender,
         argued the cause for respondent (Joseph E.
         Krakora, Public Defender, attorney;    Mr.
         Russo, of counsel and on the brief).

PER CURIAM

     By leave granted, the State appeals a June 25, 2015 Law

Division order suppressing recorded inculpatory statements.        We

now reverse.

     Defendant's prior conviction on a charge of first-degree

aggravated     assault,   N.J.S.A.   2C:14-2(a),   and   second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a),1 was

previously reversed on appeal.                     State v. S.S., No. A-2007-11

(App.    Div.    Aug.     4,     2014).           The    admission     of   defendant's

videotaped confession was not challenged prior to the earlier

trial or during that first appeal process.

    Defendant's charges arose from his daughter's statements to

a babysitter that her father placed his penis in her mouth.                            At

the time of the events, she was four years old.

    Hudson       County        Prosecutor's        Special       Victims    Unit   (SVU)

Sergeant Kenneth Kolich and Detective Polly Hans video recorded

defendant's     statements.            Defendant's         interview    was    initially

conducted by Hans alone.               After being read his Miranda2 rights,

he signed a standard waiver form.                         Approximately forty-eight

minutes into the interrogation, Hans was joined by Kolich.

    To    that    point,        Hans    had       primarily      obtained     background

information,     and    had      just     begun         asking   defendant     questions

regarding the alleged assault.                Defendant repeatedly denied that

he had done anything wrong or anything similar to his daughter's

description of the event.               He also denied having any idea why

1 Prior to trial, the State dismissed the charge of second-degree
sexual assault by contact, N.J.S.A. 2C:14-2(b), and fourth-
degree child abuse, N.J.S.A. 9:6-1 and 9:6-3.          The State
simultaneously amended the endangering count to conform to the
remaining alleged acts of aggravated sexual assault.

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



                                              2                                 A-5706-14T3
his daughter would have made up the story.                      The denials were

accompanied by lengthy silences in response to the officers'

questioning.     At one point, defendant asked to use the bathroom.

Kolich responded by asking defendant to hold on for a "couple of

minutes."

       At another point, defendant's cell phone rang.                 Kolich took

it from him before he could answer.               Kolich turned, once he had

the    cell   phone,    and   placed     it    behind     him    on   a   table    to

physically prevent defendant from reaching it.

       Kolich   asked    a    question        implying    that     defendant      was

fighting his guilt, "It's your daughter.                 Look what you and your

wife are doing to her.          Is that how you want her to remember

you?    [Defendant], there's something inside you [sic] want to

say, and you're fighting it.             You're fighting it."             Defendant

responded, "No, that's all I got to say.                        That's it."       The

interrogation continued.         Later, Kolich again asked defendant,

"Why, with all the people in the world, would your daughter pick

on you and say you did this if it wasn't true?"                           Defendant

responded "I don't know.        That's all I can say."

       Soon thereafter, Kolich explained that he had other people

that he needed to speak with and that defendant could either

wait in a holding cell or wait with another detective.

       After a break in the video, the interrogation resumed after

a forty-nine minute interval.          Hans recommenced interrogation,



                                         3                                 A-5706-14T3
               Okay. As you know, everything still stands.
               You're still under oath.    You know, you're
               aware, you know, of your rights.        Even
               though you left the room, we're still, you
               know continuing from where we left off.

               Before I start talking, is there anything –
               you know, we left you. We told you to think
               about things.    Is there anything that you
               thought about? Anything you want to tell us?

To which, defendant responded, "No."                  Immediately thereafter,

Kolich said, "Let's talk about Saturday afternoon."                         Moments

later, defendant asked if Hans could leave the room so he could

speak to Kolich alone.             Defendant then spontaneously said that

he had placed his penis in his then four-year-old daughter's

mouth for approximately five seconds.

       Prior to trial, defendant filed a motion to suppress his

videotaped confession, alleging that his inculpatory statements

were    obtained    after    he     invoked   his    right    to   remain   silent.

After    the    hearing     and    oral   argument    by     counsel,   the    judge

rendered her decision from the bench.                   She said that it was

based on "only the factual circumstances that took place within

the interview . . . ."            The judge then continued:

               [A]pproximately [forty] minutes into the
               interview the sergeant entered the room and
               began to ask the defendant substantive
               questions related to the alleged crime
               itself.

                    The defendant repeatedly denied the
               allegations,  shook his   head and   made
               statements to the effect of denying the
               allegations  until  he   began  to   make



                                          4                                 A-5706-14T3
inculpatory statements toward the end of the
interrogation.   At approximately one hour
into   the  interview  the   sergeant  asked
[defendant], there's something inside you,
you want to say and you're fighting it, to
which the defendant responded, no.    That's
all I got to say. That's it. . . .

     The sergeant proceeds to continue to
ask the defendant questions.    The defendant
attempts to remain silent.     The interview
then paused for [forty-nine] minutes and
when the interview resumed the defendant
once again answered no when asked if there
was anything that you want to tell us. The
defendant was not re-Mirandized.

     . . . .

     [T]he defendant clearly indicated his
intention to end the interrogation when he
stated, no, that's all I got to say. That's
it.   The defendant's intention[s] were made
more obvious in his subsequent decision to
remain silent to the sergeant's questioning.
Furthermore, the defendant indicated his
unwillingness to resume the interrogation
after the [forty-nine]-minute break when he
answered no to the sergeant's question as to
whether there was anything that you want to
tell us.

     Even if it were merely ambiguous to the
interrogators     what    the    defendant's
intentions were, the onus was on the
detectives       to      clarify       those
intentions. . . .

     The   defendant's  right   to  cut   off
questioning was not respected here. . . .

     . . . .

     [A]ny   statement  made   after  the
defendant stated, no, that's all I got to
say, is to be suppressed      because the




                      5                         A-5706-14T3
            subsequent    interrogation   violates    the
            defendant's constitutional right to silence.

                 [I]t is the statement of that's all I
            have to say that constitutes a clear
            invocation of his rights. The [c]ourt finds
            that the defendant's previous headshaking
            and responses prior to the statement were
            not . . . attempts to invoke his right to
            remain silent but rather answers and non-
            verbal   responses  or   reactions to   the
            questions asked.

                    . . . .

                 [T]he      defendant's               motion       is
            granted . . . .

      On appeal, the State raises the following point of error:

            POINT I
            THE TRIAL COURT ERRED IN CONCLUDING THAT
            DEFENDANT   INVOKED  HIS   RIGHT  TO   REMAIN
            SILENT.
            a.) The Appellate Division Can Perform a De
                 Novo Review of Whether the Defendant
                 Invoked His Right to Remain Silent.

      We   review    orders     granting    motions    to   suppress    evidence

accepting the trial court's findings of fact that are supported

by sufficient credible evidence in the record.                 State v. Gamble,

218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224,

243   (2007)).       In   the   usual   case,   we    accept    those   findings

because they "are substantially influenced by [an] opportunity

to hear and see the witnesses and to have the 'feel' of the

case, which a reviewing court cannot enjoy."                    Id. at 424-25

(alteration in original) (quoting State v. Johnson, 42 N.J. 146,

161 (1964)).     We disturb a trial court's findings of fact only



                                        6                               A-5706-14T3
when "so clearly mistaken 'that the interests of justice demand

intervention and correction.'"               Elders, supra, 192 N.J. at 244

(quoting Johnson, supra, 42 N.J. at 162).               Our review of a trial

court's legal conclusions is plenary.               State v. Handy, 412 N.J.

Super. 492, 498 (App. Div. 2010), aff’d, 206 N.J. 39 (2011)

(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

      However, when "the trial court's factual findings are based

only on its viewing of a recorded interrogation that is equally

available to the appellate court . . . deference to the trial

court's interpretation is not required."                State v. Diaz-Bridges,

208 N.J. 544, 566 (2012).

      In determining whether the State has met its burden to

establish a knowing, intelligent, and voluntary waiver, we look

to   "the   totality      of   the    circumstances,      including      both   the

characteristics      of    the       defendant    and    the    nature    of    the

interrogation."        State v. Faucett, 439            N.J. Super.      241, 257

(App. Div.), certif. denied, 221 N.J. 492 (2015).                   It is well-

established that once a suspect indicates "he wishes to remain

silent, the interrogation must cease."              Miranda, supra, 384 U.S.

at 473-74, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723.                           When

confronted    with     more      ambiguous       indications,     officers      are

expected to make further "inquir[ies] in order to clarify the

suspect's intent."         Diaz-Bridges, supra, 208 N.J. at 569.                 In



                                         7                                A-5706-14T3
these cases, the fact-sensitive inquiry regarding the totality

of the circumstances is of particular importance.                           Id. at 565.

    In State v. Johnson, the Supreme Court indicated that a

defendant who has "'nothing else to say,' or who '[does] not

want to talk about [the crime]'" has invoked the right to remain

silent.    120 N.J. 263, 281 (1990) (citation omitted) (alterations

in original).          Furthermore, silence itself may be sufficient to

invoke    the     right.        Id.   at    281-82.        Statements         conveying    an

unwillingness to respond to any questions also may be sufficient

to invoke the right to remain silent.                          Id. at 285.        Once the

right has been invoked, it must be scrupulously honored.                                Ibid.

"Where the invocation of the right to remain silent is followed

by no interruption in questioning, and where the interrogation

continues        as   if   nothing         had       happened,    the    right     is     not

scrupulously honored."            Id. at 282.

    If considered exclusively from the written statement, at a

minimum,     defendant's          words,         in     accordance       with     Johnson,

warranted exploration by the officers.                         See also Diaz-Bridges,

supra,     208    N.J.     at    569.        That       defendant       was    denied     the

opportunity to use the restroom for a few minutes after his

request also reads as coercive, in violation of the principles

embodied     in       Miranda    and       its       progeny     to   the     effect    that

statements should be admitted only if voluntary.                              See Miranda,

supra, 384 U.S. at 462, 86 S. Ct. at 1621, 16 L. Ed. 2d at 717



                                                 8                                 A-5706-14T3
("But   a   confession    obtained   by     compulsion     must    be   excluded

whatever     may   have   been   the       character   of    the    compulsion

. . . .").

    But defendant's words and silences, when witnessed on the

videotape, did not require exploration by the officers, or that

the questioning stop.       Respectfully, we disagree with the trial

judge's interpretation of defendant's responses.

    The interview was conducted while defendant was seated in

an upholstered chair, directly facing Hans, seated in a similar

chair some three or four feet away.              When Kolich entered the

room, he seated himself on defendant's left side, close by in a

wooden chair he turned towards defendant and away from a table.

He was closer to defendant than Hans.

    Defendant,     who    appeared   composed,     spoke    in    quiet     tones.

His demeanor, until he confessed, was tense but calm.                      It was

not until the point on the tape when he confessed that he showed

emotion or wept.

    When defendant said "that's all I got to say[,]" "that's

all I can say[,]" and the word "no[,]" it was in the context

that he had no explanation for his daughter's detailed false

claim against him.        It was not an equivocal request that the

interrogation cease.       In the most literal sense, defendant was

denying that he had anything more to say about his daughter's

accusation, not that he wanted to stop talking to the officers.



                                       9                                  A-5706-14T3
      During the interrogation, both Hans and Kolich repeatedly

asked     defendant   if    he    and   his    wife     had    his    daughter's      best

interests at heart, if he understood that she could be harmed if

labeled a liar, and if he had any explanation for her statement.

Their strategy was to repeatedly ask defendant if he could think

of a reason this false accusation was made.

      The first alleged invocation occurred when defendant said

"No, that's all I got to say.                 That's it."        That response came

after Hans and Kolich said the following:

             Detective Hans:             No,      she         didn't     do
             nothing wrong.

             Sergeant Kolich:    You're absolutely right.
             She didn't do anything wrong.

             Detective Hans:             But –

             Sergeant Kolich:            She told us the truth

             Detective Hans:     But she's going to feel
             that way if she's being told that the truth
             is something she has to now keep a secret.

             Sergeant Kolich:    It's    your   daughter.
             Look what you and your wife are doing to
             her.   Is that how you want her to remember
             you?   [Defendant], there's something inside
             you you <sic> want to say, and you're
             fighting it. You're fighting it[.]

It   is    clear   from    defendant's         level    unchanged      tone    when    he

responded that he meant he had no explanation for his daughter's

conduct.      He   had     said   what    he     was    going    to    say    about   the

subject.




                                          10                                    A-5706-14T3
    The next alleged invocation occurred as follows:

         Sergeant Kolich:   We're just looking for
         the truth here, [defendant].   Why, with all
         the people in the world, would your daughter
         pick on you and say you did this if it
         wasn't true?

         [Defendant]:         I    don't     know.   That's
         all I can say.

When those words are heard on the videotape, it appears to us

from defendant's even tone of voice that he means that he is at

a loss for words to explain the reason his daughter would have

accused him.   It simply does not, in context or in tone, sound

like an invocation of the right to silence.



    Finally, the third alleged invocation occurred as follows:

         Detective Hans:     Okay.    As you know,
         everything still stands. You're still under
         oath. You know, you're aware, you know, of
         your rights. Even though you left the room,
         we're still, you know, continuing from where
         we left off.    Before I start talking, is
         there anything – you know, we left you. We
         told you to think about things.     Is there
         anything that you thought about?     Anything
         you want to tell us?

         [Defendant]:                  No.

    Again, from defendant's tone and in the context of the flow

of the conversation, it seems clear that defendant            was only

denying culpability, not that he was expressing the desire to

stop the questioning.




                                  11                           A-5706-14T3
    Clearly, the State bears the burden of proving:           "beyond a

reasonable   doubt    that   the   suspect's   waiver   was    knowing,

intelligent, and voluntary in light of all the circumstances."

State v. Patton, 362 N.J. Super. 16, 42 (App. Div.) (quoting

State v. Presha, 163 N.J. 304, 313 (2000)), certif. denied, 178

N.J. 35 (2003).      From our independent review of the video, we

are satisfied that the State has borne its burden of proving

beyond a reasonable doubt that defendant's initial waiver was

never revoked.

    Reversed.




                                   12                          A-5706-14T3
