                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                          SUPERIOR COURT OF NEW JERSEY
                                                          APPELLATE DIVISION
                                                          DOCKET NO. A-4925-15T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

FELIX N. GRAVES-DARDON,

     Defendant-Appellant.
____________________________

                    Argued November 28, 2018 – Decided August 30, 2019

                    Before Judges Nugent and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Somerset County, Indictment No. 12-09-
                    0677.

                    Alyssa A. Aiello, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Alyssa A. Aiello, of counsel
                    and on the brief).

                    Jennifer E. Kmieciak, Deputy Attorney General, argued
                    the cause for respondent (Gurbir S. Grewal, Attorney
                    General, attorney; Jennifer E. Kmieciak, of counsel and
                    on the brief).
PER CURIAM

      Defendant, Felix N. Graves-Darden, was indicted for the first-degree

purposeful or knowing murder of Yadira Blaimayer, N.J.S.A. 2C:11-3(a)(1) or

-3(a)(2), and third-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(d). After a jury convicted defendant of both offenses, the trial

court sentenced him to life imprisonment subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2, on the murder conviction and merged the weapons

conviction.

      Defendant appeals and argues the following points:

              POINT I

                  THE TRIAL COURT ERRED IN DENYING
                  SUPPRESSION    OF     DEFENDANT'S
                  STATEMENT, BECAUSE THE STATE
                  FAILED   TO  PROVE    BEYOND   A
                  REASONABLE       DOUBT      THAT
                  DEFENDANT'S WAIVER OF RIGHTS WAS
                  KNOWING,     INTELLIGENT     AND
                  VOLUNTARY.

                        A.     Introductory Remarks Made By The
                               Detective Were Misleading And
                               Operated To Neutralize The Miranda
                               Warnings That Were Read To
                               Defendant Immediately Thereafter.

                        B.     Defendant's Waiver Of His Miranda
                               Rights Was Rendered Invalid By The
                               Improper Manner In Which The

                                                                         A-4925-15T1
                                       2
                 Detective Responded to Defendant's
                 Questions Regarding His Right To
                 Counsel And Status As A Suspect.

                 i.    Defendant's Waiver Of Rights
                       Was Not Knowing And
                       Intelligent  Because    The
                       Detective Provided Him With
                       An Incorrect Explanation Of
                       The Right To Counsel.

                 ii.   Under The Totality Of The
                       Circumstances,          The
                       Detective's       Misleading
                       Response To Defendant's
                       Question    Regarding   The
                       Nature of The Investigation
                       And His Status As A Suspect
                       Rendered Invalid Defendant's
                       Subsequent Waiver.

            C.   Conclusion.

POINT II

     THE JUDGE'S REFUSAL TO CHARGE THE
     JURY ON SELF-DEFENSE REQUIRES
     REVERSAL,    BECAUSE   DEFENDANT'S
     STATEMENT PROVIDED A RATIONAL
     BASIS FOR SUCH A CHARGE.

POINT III

     THE JUDGE'S REFUSAL TO CHARGE THE
     JURY    ON     PASSION/PROVOCATION
     MANSLAUGHTER DEPRIVED DEFENDANT
     OF A FAIR TRIAL AND DUE PROCESS OF


                                                      A-4925-15T1
                         3
                  LAW, AND REQUIRES REVERSAL OF HIS
                  MURDER CONVICTION.

             POINT IV

                  THE MATTER MUST BE REMANDED FOR
                  RESENTENCING       BECAUSE     THE
                  SENTENCING JUDGE, IN IMPOSING THE
                  MAXIMUM SENTENCE OF LIFE IN PRISON
                  ON A DEFENDANT WHO HAD NEVER BEEN
                  ARRESTED     BEFORE    INCORRECTLY
                  FOUND AGGRAVATING FACTOR (2), AND
                  DID    NOT    PROPERLY    CONSIDER
                  DEFENDANT'S INTOXICATION AT THE
                  TIME OF THE OFFENSE.

      Because the trial court denied defendant's request to instruct the jury on

self-defense and passion-provocation manslaughter, and because there was

evidence in the record to support those charges, we reverse and remand for a

new trial.

                                       I.

      The State presented the following evidence at trial. Defendant lived in

the rear first-floor bedroom he subleased from the family who leased the first

floor of a house on Prospect Place in North Plainfield. The family slept in the

front bedroom. The owner and his family lived on the second floor.

      On August 11, 2012, between 11:00 and 11:30 p.m., the family that lived

on the first floor returned home to find defendant in the kitchen, naked and


                                                                        A-4925-15T1
                                       4
intoxicated, mopping up blood. After the mother saw bloodstains on the kitchen

curtains and floor, on defendant's clothes, and in the bathroom, and a woman's

sandal and lip-gloss on the bed in defendant's bedroom, another family member

telephoned her brother-in-law, who came to the house with his son. The brother-

in-law called the police and the son interpreted for them, as defendant and the

other residents spoke only Spanish.

         North Plainfield Police Officers Richard Dow and Joseph Mazza arrived

separately shortly before 12:30 a.m. After speaking with the brother-in-law and

his son and seeing the "large amount of blood throughout the kitchen[,]" the

officers, accompanied by the son, went to the basement. The officers observed

blood on the steps leading to the basement, and "a lot of bed sheets, pillows

covered in blood at the base of the stairs[.]" They found defendant, asleep and

naked, under a blanket or comforter, on the floor in front of the washer and

dryer.

         The officers woke defendant and asked if he was hurt. They noticed he

had some minor facial injuries but nothing substantial. Defendant told the

officers he had been drinking at the house and later downtown. His brother had

asked to borrow the keys to the house so he could bring his girlfriend back.

Defendant claimed his brother had been in a fight at a bar called Pueblo Viejo,


                                                                       A-4925-15T1
                                        5
the blood had come from his brother, and his brother might be in his room.

      Officer Mazza went upstairs to investigate. No one was in defendants'

bedroom, but the officer observed large pools of blood on the floor, couch, and

clothing on the couch. He also saw a woman's purse on the bed. Officer Dow

brought defendant upstairs, where the officers asked him what happened and

where his brother was.         At that point, defendant became belligerent and

incoherent.

      Officer Mazza went outside to the backyard. He noticed the porch railing

was broken and appeared to have blood on it. In an alleyway between the house

and a neighboring house, he found a woman lying in the grass, unconscious.

Her pants were pulled down, her bra was pulled up, she had lacerations on her

neck and right arm, and she was covered in blood. Detectives and crime scene

investigators were notified.

      Meanwhile, Officer Charles Halsted had arrived. Testifying at trial, the

officer described defendant's appearance:

              He had on a dirty white T-shirt, jeans, no shoes on.

               . . . [H]e had what appeared to be dry blood on his feet
              and hands and he had scratches on his face, neck.

                    ....



                                                                          A-4925-15T1
                                         6
                     [H]is eyes were red, bloodshot. When I got near
               him I could smell the odor of an alcoholic beverage.

      Officer Halsted transported defendant to headquarters at approximately

1:00 a.m. Defendant was not handcuffed, but he needed assistance walking to

the car because he was unstable on his feet. Once at headquarters, unprompted,

defendant said he had been at two bars earlier and had too many beers and had

later been robbed on Front Street in Plainfield. He did not report the robbery to

police. Defendant was placed in a holding room where he slept for more than

three hours.

      North Plainfield Detective Eugene Segeda woke defendant and asked if

he would be willing to speak with police. Defendant was tired and disoriented,

but that lasted "[j]ust a couple of moments."       Defendant declined medical

attention and "seemed like he [had] sobered up." Officer Halsted and Detective

Segeda escorted defendant to an interview room; defendant did not need

assistance walking.

      Detective Segeda and Detective Sergeant Werner Rodas of the Somerset

County Prosecutor's Office interviewed defendant. Sergeant Rodas was the lead

interviewer, as he spoke fluent Spanish.          The interview, which lasted

approximately three hours, was videotaped and later transcribed into English.

Jurors were given transcripts to follow while the tape played at trial.

                                                                          A-4925-15T1
                                        7
       Before questioning defendant about what happened at the house, the

officers introduced themselves and read defendant his Miranda1 rights. During

the introduction, and before informing defendant of his Miranda rights, the

following exchange occurred between Sergeant Rodas and defendant:

             SR: Felix, how are you?

             FG: There.

             SR: There what?

                   ....

             SR: Are you sleepy?

             FG: Sleepy and anguish.

             SR: Ok. Um, I'm Sergeant Rodas. I work for the
             Prosecutor, County of Somerset. This is Detective
             Segeda, he works here in North Plainfield. [W]e need
             to talk with you in reference to an investigation we're
             conducting – at your house, . . . , you live at
             . . . Prospect Place, right?

             FG: Yes, Prospect.

             SR: Ok? And I said, we want to talk with you and we
             want to see your, your part of the story that, that, that
             happened tonight. But before I talk with you, I need to
             offer you your rights or advise you of your rights, Ok?
             But, uh, everyone has their story, their part they have
             to talk about, Ok? Um, can you read Spanish?


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-4925-15T1
                                        8
             FG: Yes.

     Following a discussion about defendant's home country, the Sergeant

continued:

             SR: . . . Ok. Can you read Spanish? Ok. So, what we're
             going to do is, I'm going to read it and you follow along
             with me – If you don't understand for any reason, tell
             me and I'll explain it to you. Ok? This form is called
             the "Miranda Advisement," and this is from Somerset
             County, the Somerset County Prosecutor's Office, Ok?
             These are your rights and I'm going to read you your
             rights. I'm going to try to do it slowly so you
             understand, Ok? Rights. The first right is that you have
             the right to remain silent.

             Do you understand that right? If you understand, what
             I need you to do, uh, put your initials over here and
             mark "yes" here. Ok?

             FG: The, the "G?"

             SR: What are your initials?

             FG: "FG."

             SR: "FG?"

             FG: Uh-huh.

             SR: Yes, that. Ok. Second: Everything you say can be
             used against you in a court of law. Do you understand
             this?

             FG: Yes.



                                                                         A-4925-15T1
                                        9
SR: Ok. The same here, please. You have the right to
speak with an attorney at any time and to have him at
your disposal before, during, or after questioning. Do
you understand that right?

FG: Yes.

SR: Ok. Here, the same here, please. Ok. In case you
can hire an attorney . . . that you cannot hire an attorney,
but you want one, one will be appointed to you at no
cost before any questioning. Do you understand this
right?

FG: But how . . . I mean, what do you mean?

SR: That is if you would want an attorney, if you would
like to hire one, it could be that, uh, if you make an
application, it is possible that you obtain one for free
also, if you want.

FG: Ok. But, but what am I being accused of?

SR: Well, uh, I, I want to talk with you about
everything. No one is accusing you, I'm not accusing
you of anything. We're investigating the case. The
thing is that that before asking you questions, I have to
inform you of your rights. That's why I always want to
offer you this first before asking you any questions
because, uh, these are the rights you have. Ok? Do you
understand the right?

FG: Yes.

SR: Ok. Your decision to waive these rights and answer
the questions will not be final. You will have the right
to stop answering questions and speak with an attorney
at any time during the questioning. Do you understand
this right?

                                                               A-4925-15T1
                           10
            FG: Yes.

            SR: Ok. The same here, please. Ok, this part, bottom
            part is called the waiver. Here it says that "I
            acknowledge having been informed about my rights
            that have been indicated before. I understand said
            rights and I agree to speak with the police." Can you,
            uh, talk with me? Sign there and write your name over
            here.

            DS: I've got 4:51 a.m.

            SR: Ok. Thanks. Sign there. Ok, sir, Felix, um, you
            live at . . . Prospect Place, right? Who do you live with
            there?

As recorded on video, Sergeant Rodas read defendant his Miranda rights from

the "Miranda Advisement" form, which defendant initialed and signed.

      According to defendant's recorded interview, he arrived home around 2:00

p.m. and helped the dwelling's owner and "two other guys" with some work.

While working, the men drank beer. Between 7:00 and 7:30 p.m., defendant left

to go to a bar called Pueblo Viejo. On his way, he ran into a man known as

"Chino," with whom he had problems in the past, who was with two other men.

Two of the men hit defendant, he swung back, and the three men ran away.

      After the altercation, on his way home, defendant ran into a friend. The

two went to a bar behind the police station, where defendant saw his brother.

After leaving the bar, defendant had his friend drop him off at a store to buy


                                                                        A-4925-15T1
                                      11
cigarettes. There, he saw the three men from before. Defendant said when he

was almost home someone grabbed him and he "felt the lights go out."

      Continuing his statement, defendant claimed the next thing he

remembered was the police waking him in the basement while he was naked and

wrapped in a sheet. He said he had "maybe more than twenty beers" that night,

and the blood on his body came from the fight with the men on the street.

      Sergeant Rodas asked defendant whether he met a girl that evening, and

defendant said he was with two girls who both worked at the bar, but they stayed

at the bar when he left. Defendant repeatedly asserted he did not remember

anything after getting home and did not remember cleaning up blood.

      As the interview continued, defendant said he remembered getting a call

from a woman whose name he did not know, who said she would "come by."

He could not remember anything after that.

      Defendant asked the officers if they had found any money, because he

remembered having five hundred dollars in his pants pocket. Sergeant Rodas

asked if the woman tried to steal his money, and defendant replied "Maybe. . . .

That's why I'm . . . asking you, because I had five hundred dollars." When

Sergeant Rodas suggested he may have been provoked, defendant said "Yes, but

not so, not so that I would do something evil to her." Defendant suggested a


                                                                        A-4925-15T1
                                      12
mistake may have occurred and something provoked him, but he did not

understand it and could not remember.

      Defendant explained he remembered going to the bathroom to bathe and

leaving his five hundred dollars on the dresser. When he came out, there was a

woman there, but he could not remember what she looked like or was wearing.

His five hundred dollars was no longer on the dresser, and the woman asked him

to pay her, but he said "[h]ow am I going to pay you?" The woman said she was

leaving because he was not going to pay her, and he thought she had taken his

money so he asked, "why are you stealing it from me?" She replied she was

leaving. Defendant denied getting angry at this point, but said he coul d not

remember anything else.

      Defendant later remembered the woman thought he was going to hurt her,

and there was a knife in the kitchen that the woman took. He claimed the woman

"attacked [him] with the knife" and scratched him with her nails. He recalled

they scuffled in the kitchen, and the fight spilled over into the bedroom, where

the woman tripped on the bed, slipped backwards while they were both holding

the knife, and was stabbed in the neck. This is the exchange between defendant

and the Sergeant:

            D:    Ughh! . . . [Exhales] Uh, there was a knife in the
            kitchen.

                                                                        A-4925-15T1
                                      13
SR:   Uh-hum.

D:    Yes, she thought that, that I was going to . . . that
I was going to hurt her.

SR:   Uh-hum.

D:    And she took the knife, and, because – when I
asked her why, why, why was she leaving? Because,
my money. And, no, that there was not going to be
anything in exchange, that she had to give me my
money back, I told her that.

SR:   Uh-hum.

D:    Yes, she took it.

SR:   The knife?

D:    Yes.

SR:   What happened after that?

D:    She took the knife.

SR:   What happened after she took the knife?

D:    Yes, she took the knife… [Sighs] she took the
knife and, and, and she attacked me with the knife.

SR:   And then what happened?

D:    [Sighs] At the end… [Sighs]

SR:   Then what happened?

D:    She got all over me with the knife and – and –


                                                              A-4925-15T1
                            14
when she got all over me, that was when, when she did
this to me. Yes, she did this to me like that and, and
she stuck her nails in me here.

SR:   Uh-hum.

D:    Yes, she stuck her nails in me.

SR:   Then what happened?

D:    Then we scuffled.

SR:   And what?

D:    We scuffled.

SR:   What is that?

D:    I mean…we fought/wrestled.

SR:   Oh, fight/wrestle, Ok. [2:26:52]

D:    Yes, because – uh – she got all over me with the
knife and, and, and I moved to the side, and then she
was following me. And then it was when, when we
went back to the bedroom.

SR:   Uh-hum.

D:    And she with the knife.

      ....

D:   [S]he took the knife and got all over me. Ughh!
[Exhales] Oh, how come [?----]!

SR: And you fou-/wrest-, and you guys started
fighting/wrestling, right?

                                                         A-4925-15T1
                          15
D:     Yes.

SR:    For the knife?

D:     Yes, because she, she, she – she wanted to stick
it into me.

SR: Ok. And did you fight with her and took the knife
from her?

D:     No.

SR:    What happened with the knife, then?

D:     [Sighs] We did scuffle.

SR:    Uh-hum. [2:28:32]

D:     Yes. She, she tripped on the bed.

SR:    Uh-hum.

D:     And she hit the dresser.

SR:    How come she hit it?

D:     Uh, when, when we were scuffling –

SR:    Uh-huh.

D:      . . . she . . . in the, when I was in the bed – because
she was walking backwards and she went like this. She
hit it like this and she fell on top of the dresser.

SR:    Uh-hum.

D:     And we were both holding the knife like this.


                                                                  A-4925-15T1
                             16
SR:   Uh-hum. [2:29:05]

D:    Oh, God. Ughh! [Sighs] Oh…blessed God.

SR:   What happened?

D:    Yes, I remember now.

SR:   What happened?

D:    That was when it went in her here.

SR:   It went in her neck? How?

D:    When I, I – uh, when she, she slipped and she
went backwards –

SR:   Uh-hum.

D:    Oh! We both had the knife like this.

SR:   Uh-hum. [2:29:36]

D:   Because I held her hand so she would stop.
Because if I had not held her hand, she would have, she
would have stuck it in me.

SR:   Uh-hum.

D:    And without my saying anything to her. I was
only asking her for my five hundred dollars. . . .

SR:   Uh-hum.

D:    Yes, then when she slipped, we were both
holding the knife, and that's when she got stabbed here.



                                                           A-4925-15T1
                          17
      Defendant ended the interview by stating, "Don't ask me for anything else,

please."

      After the interview ended, officers transported defendant to the hospital

to collect evidence and document his injuries.         Dr. Patricia Cataruozolo

examined defendant and took photographs of his body, collected possible blood

samples, and collected defendant's DNA using a buccal swab. Dr. Cataruozolo

noted defendant sustained a swollen and lacerated bottom lip, two scratches on

his left cheek, lacerations above his left eyebrow, scratches on his right cheek

bone and nose, lacerations on his forehead, an abrasion on his upper right arm,

scratches on his chest, a large scratch across his abdomen, scratches to his pubis

and thighs, and an abrasion and scratches on his left shin.

      The crime scene revealed a large number of bloodstained areas.

Beginning in the basement, the crime scene technicians documented "footwear

impressions and footprints in blood," as well as "bloody clothing, bloody

bedding, a lock of hair, blood on the floor near a washing machine, and blood

on the washing machine as well." However, the amount of blood was not

consistent with the woman's injuries, and therefore the basement was determined

not to be the location of the altercation.




                                                                          A-4925-15T1
                                        18
      Upstairs in the kitchen, investigators discovered blood on the floor, the

curtains, the door leading to the backyard, the counter, the microwave, the clock,

and the rear wall. In the bathroom, investigators found blood on the door, the

floor, and in the sink, and a pair of green pants on the floor with blood spatter

on them. In the pants, police later found a broken steak knife, a cellphone, and

a passport with defendant's name on it.

      Investigators concluded the back bedroom was where the altercation

occurred, based on the amount of blood and signs of struggle. In the bedroom,

they found bloodstains on the door, the floor, the bedding, and the couch. They

found a bloody footprint that matched defendant's right footprint, a pair of blue

shorts with a cellphone in the pocket, a woman's purse on the bed, and another

cellphone between the bed and the wall. Inside the purse, investigators found a

prescription pill bottle with the name of the victim, Yadira Blaimayer. The cell

phone found between the bed and the wall was identified as belonging to the

victim.

      Many of the blood samples collected were tested for DNA. The victim's

DNA matched swabbings from the green pants, the curtain panel, and the quilt.

Neither defendant nor the victim could be excluded as partial contributors to

mixed DNA profiles identified in a swabbing taken from the inside waistband


                                                                          A-4925-15T1
                                       19
of the green pants. A mixed DNA profile found on the knife blade matched

defendant as the major profile and the victim as the minor profile. The blood

on defendant's feet contained a mixed DNA profile with the victim as the major

contributor and defendant as the minor contributor. Clippings of the victim's

fingernails could not include or exclude defendant as a partial contributor to at

least two male contributors found.

      Dr. Abraham Philip, who performed the autopsy, testified the cause of the

victim's death was "multiple sharp and blunt force injuries to the body, and the

manner of death was homicide." The doctor noted the victim was five feet two

inches tall and weighed around 148 pounds.             She sustained petechial

hemorrhages within the eyelids from lack of oxygen, due to attempted

strangulation; bruising on her forehead with bleeding into the subcutaneous

layers of the skin, which indicated blunt force trauma; some cutting wounds on

the left side of her face; a T-shaped wound on the left side of her jaw line; and

a "big gaping wound across the front of the neck[.]" This last wound cut through

the jugular vein and was the fatal wound.

      The victim also had scratches on the right side of her neck consistent with

fingernail marks, bruising and scratching on the neck that suggested attempted

strangulation, a seven-inch wound on her abdomen, injuries around her left


                                                                         A-4925-15T1
                                      20
breast, and a long wound on her upper right arm from her shoulder joint almost

to the lower third of the upper arm, which was consistent with being cut by a

serrated knife. The victim had defensive wounds on her forearm, one of her

hands, one of her wrists, and some of her fingers.

      Police obtained the records of the cellphones found at the scene but found

no calls between defendant and the victim that night. However, the victim had

contacted a man who lived in North Plainfield. He told police she was at his

home between 8:00 and 10:00 p.m. on August 11, 2012, but he did not see her

again after she left. The man testified he did not know how she got to his house

that night, and he denied driving her anywhere.

      Two of defendant's brothers were called to testify by the State. The first

testified he spoke with defendant by phone during the evening of August 11,

2012, and had plans to meet with him the next day. After speaking with

defendant, he did not leave the house. He did not have any fights and he was

never in defendant's bedroom. Defendant's other brother testified he had no

contact with defendant from August 10 through August 12, 2012.

      Defendant did not testify but presented five witnesses in his defense: his

sister, a brother, a detective, a neighbor, and an expert. His sister went to his

apartment the day after the homicide. She found no money in defendant's


                                                                         A-4925-15T1
                                      21
bedroom. His brother – who had testified in the State's case – and Detective

Segeda watched a surveillance videotape from the Tequila Club and identified a

man who entered the bar with defendant. The man who entered the bar with

defendant was not the person defendant had mentioned in his interview with

police.

      The neighbor testified on the evening of August 11, 2012, he left his home,

"probably" between 11:00 and 11:30 p.m., and saw "two to three people, two

probably," drinking in the back of the house where defendant lived. The two

men were drinking and talking. He did not see a woman. He could not identify

either man, as he only glanced at them. Less than an hour later, when he

returned, the police had already arrived.

      Dr. Martin Weinapple, a forensic psychiatrist, testified defendant was in

a "dissociative state" at the time of the killing due to acute alcohol intoxication.

Based on defendant's level of intoxication, Dr. Weinapple opined defendant

"lacked the cognitive ability to formulate any intent. . . . [H]e didn't act

knowingly and purposely because of a cognitive impairment secondary to

alcohol intoxication."

      In rebuttal, the State presented the testimony of Dr. Howard Gilman, a

forensic psychiatrist. Dr. Gilman agreed defendant was intoxicated at the time


                                                                            A-4925-15T1
                                        22
of the crime, but disagreed it resulted in a "dissociative state." Dr. Gilman

opined defendant's intoxication "did not impair his ability to act with purpose or

knowledge at the time" of the crime.

      During the charge conference, defense counsel requested the jury be

charged on self-defense and passion/provocation manslaughter, requests the

court denied. The judge noted defendant had not notified the State of his

intention to assert a claim of self-defense, and the State had already rested.

      The court charged the jury on intoxication as a defense to knowing or

purposeful murder, and on aggravated manslaughter and reckless manslaughter

as lesser-included offenses. On the second day of deliberations, the jury sent a

note asking the court to "clarify the difference" between murder and aggravated

manslaughter, so the judge reread the elements of each offense. The jury

returned its verdict during the third day of deliberations.

                                        II.

                                        A.

      Defendant first argues that contrary to the trial court's decision, the State

did not prove beyond a reasonable doubt that the waiver of his Miranda rights

was knowing, intelligent, and voluntary. He contends Sergeant Rodas made a

series of inappropriate remarks that rendered the Miranda warnings ineffective.


                                                                           A-4925-15T1
                                       23
      Defendant argues the first inappropriate remark occurred when, during his

introductory remarks, Sergeant Rodas said, "we want to see your – your part of

the story that happened tonight. But before I talk with you I need to offer your

rights or advise you of your rights, [o]kay? But, uh, everyone has their story,

their part they have to talk about[.]"       Defendant contends Sergeant Rodas

undermined the Miranda warnings and suggested they were a mere informality

in two ways: first, by telling defendant they wanted his part of the story; second,

by saying immediately after telling defendant he would be read his rights that

"everyone has their story [and] their part they have to talk about."

      Next, according to defendant, Sergeant Rodas exacerbated his initial

impropriety by giving misleading responses when defendant asked about his

right to counsel and his status as a suspect. After Sergeant Rodas advised

defendant of his right to counsel, and that counsel would be appointed if

defendant could not afford an attorney, defendant asked, "But how . . . I mean

what do you mean?" Sergeant Rodas responded that if defendant wanted an

attorney and wanted to hire one, "it could be that[.]" The detective continued,

"if you make an application it is possible that you obtain one for free also, if you

want."




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                                        24
      When defendant asked what he was being accused of, Sergeant Rodas

responded,

             . . . I want to talk with you about everything. No one is
             accusing you. I am not accusing you of anything. We
             are investigating the case. The thing is that . . . before
             asking you questions, I have to inform you of your
             rights. That's why I always want to offer you this first
             before asking you any questions because, uh, these are
             the rights you have. Ok? Do you understand the right?

Defendant responded that he understood.

      Defendant argues that it was obvious from his question about counsel that

he did not have a full understanding of his right to an attorney. Defendant also

argues that he was deprived "of information indispensable to a knowing and

intelligent waiver when, in response to [his] question [about] . . . what [he was]

being accused of . . . , the detective failed to inform [him] of the nature of the

investigation or that defendant was the chief suspect."

      Defendant asserts that under the totality of the circumstances, the State

failed to prove beyond a reasonable doubt that he voluntarily, knowingly, and

intelligently waived his Miranda rights.

      The State responds that the trial court's determination the State proved

beyond a reasonable doubt defendant's waiver of his Miranda rights was

knowing, intelligent, and voluntary was amply supported by the record. The


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                                        25
State insists nothing the detective said was inconsistent with the Miranda

warnings. The State also points out that defendant eventually decided to invoke

his right to remain silent, thus evidencing his understanding of his rights.

                                        B.

      The five officers who testified at the suppression hearing – Mazza, Dow,

Halstead, Segeda, and Rodas – testified to substantially the same facts that they

recounted at trial, as previously summarized. In addition, the State presented

the video of defendant's confession, which the court reviewed, and documentary

evidence, including the waiver of rights form. Defendant offered no evidence

at the suppression hearing. Based on the State's evidence, the court concluded

defendant knowingly, intelligently, and voluntarily waived his Miranda rights.

      The court first determined that even if defendant was intoxicated upon

arriving at police headquarters, he slept for three hours, and he did not appear

to be intoxicated when he was interviewed. To the contrary, his demeanor, his

manner of walking, his interaction with the detectives who interviewed him, his

steady hand when initialing documents, and his apparent alertness all suggested

he comprehended and responded appropriately to the officers' questions.

Defendant does not challenge these findings on appeal.




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                                       26
      The court next determined that Sergeant Rodas adequately answered

defendant's question about how obtaining counsel happens.             Addressing

defendant's argument the detectives misinformed him about whether he was

being accused of anything, the court noted that sometimes police lie to

defendants during their investigation. Based on the court's review of the video

and transcript of the interview, however, the court found the Sergeant conveyed

to defendant his right to remain silent and his other Miranda rights; and

defendant understood them.       Under the totality of the circumstances, the

detective's statement that no one was accusing defendant did not "rise to the

level . . . to grant the defense application to suppress the statement[.]" Rather,

the totality of circumstances demonstrated defendant voluntarily, intelligently,

and knowingly waived his Miranda rights and participated in the interview.

      We now review the trial court's determinations.

                                       C.

      The Fifth Amendment to the United States Constitution guarantees that

"[n]o person . . . shall be compelled in any criminal case to be a witness against

himself[.]" U.S. Const. amend. V. The Fifth Amendment right against self-

incrimination has been made applicable to the states through the Due Process

Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 8 (1964).


                                                                          A-4925-15T1
                                       27
The right against self-incrimination is also guaranteed by N.J.S.A. 2A:84A-19,

which provides "every natural person has a right to refuse to disclose in an action

or to a police officer or other official any manner that will incriminate him or

expose him to a penalty or forfeiture of his estate[.]" Accord, N.J.R.E. 503

(same as N.J.S.A. 2A:84A-19).

      Miranda warnings safeguard "a suspect's right against self-incrimination

from the psychological pressure inherent in a police-dominated atmosphere that

might compel a person 'to speak where he would not otherwise do so freely.'"

State v. L.H., ____ N.J. ____, ____ (2019) (slip op. at 24) (quoting Miranda,

384 U.S. at 467). Federal Law requires that the government prove a suspect has

waived his or her Miranda rights "by a preponderance of the evidence." Id. (slip

op. at 24 n. 9) (quoting Colorado v. Connelly, 479 U.S. 157, 168 (1986)).

      In contrast, in New Jersey "the State bears the burden of proving beyond

a reasonable doubt that a defendant's waiver of his rights was made knowingly,

intelligently, and voluntarily." Ibid. (citing State v. Nyhammer, 197 N.J. 383,

400-01 (2009)). In addition, due process "requires that the State 'prove beyond

a reasonable doubt that a defendant's confession was voluntary and was not

made because the defendant's will was overborne.'" Ibid. (quoting State v.

Knight, 183 N.J. 449, 462 (2005)).


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                                       28
      Our Supreme Court has recently reiterated that an interrogating police

officer may use certain techniques to overcome a suspect's natural reluctance to

incriminate himself in a crime. Id. (slip op. at 26). Thus, an officer may appeal

to a suspect's sense of decency. Ibid. In addition, "[o]ur jurisprudence gives

officers leeway to tell some lies during an interrogation." Ibid. (citing State v.

Galloway, 133 N.J. 631, 655 (1993)).

      On the other hand, certain techniques are prohibited. A police officer may

not say or imply that a suspect's statements will not be used against him, because

"[a] police officer cannot directly contradict, out of one side of his mouth, the

Miranda warnings just given out of the other." Id. (slip op. at 27) (quoting State

in the Interest of A.S., 203 N.J. 131, 151 (2010)). Nor may an interrogating

officer tell a defendant he cannot "hurt himself and could only help himself by

providing a statement[.]" Ibid. (quoting State v. Puryear, 441 N.J. Super. 280,

298 (App. Div. 2015)). Also prohibited are "false promises of leniency that,

under the totality of the circumstances, have the capacity to overbear a suspect's

will." Id. (slip op. at 24) (citing State v. Hreha, 217 N.J. 368, 383 (2014)).

      A trial court's consideration of whether a suspect voluntarily, intelligently,

and knowingly waived his Miranda rights and participated in a custodial

interrogation should include an assessment of "the suspect's age, education and


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                                       29
intelligence, advice concerning constitutional rights, length of detention,

whether the questioning was reported and prolonged in nature, and whether

physical punishment and mental exhaustion were involved." Galloway, 133 N.J.

at 654 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). The court

"should look to whether defendant has had previous encounters with law

enforcement and the period of time between when Miranda rights were

administered and when defendant confessed." Hreha, 217 N.J. at 383 (citing

State v. Timmendequas, 161 N.J. 515, 614 (1999)).

      Our review of a trial court's grant or denial of a motion to suppress a

defendant's statement is deferential. State v. Vincenty, 237 N.J. 122, 131-32

(2019). If a trial court's findings are supported by sufficient, credible evidence

present in the record, our task is complete and we should not disturb the result.

State v. Johnson, 42 N.J. 146, 162 (1964). In contrast, we review de novo a trial

court's legal conclusions. State v. Hubbard, 222 N.J. 249, 263 (2015).

      Applying the foregoing principles to the facts in this case, we conclude

the trial court's decision should be affirmed.         The trial court's factual

determinations concerning defendant's alertness, demeanor, steady hand,

interaction with the detectives, and comprehension of his Miranda rights are

amply supported by competent evidence in the record.


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                                       30
      Sergeant Rodas' explanation to defendant about his right to an attorney,

after defendant asked how an attorney would be obtained, perhaps could have

been more detailed, but was nonetheless adequate. Contrary to defendant's

argument, the record amply supports defendant's understanding of his right to

counsel.

      The detective's statement that defendant was not accused of anything,

though technically accurate, was nonetheless misleading. The misleading nature

of the statement, however, did not render defendant's statement involuntary.

      A "government's failure to inform a suspect that a criminal complaint or

arrest warrant has been filed or issued deprives that person of information

indispensable to a knowing and intelligent waiver of rights." State v. A.G.D.,

178 N.J. 56, 68 (2003). In so explaining, the Court noted "a criminal complaint

and arrest warrant signify that a veil of suspicion is about to be draped on the

person, heightening his risk of criminal liability." Ibid. For that reason, the

court held the State cannot prove beyond a reasonable doubt a defendant had

knowingly, intelligently, and voluntarily waived his Miranda rights "[w]ithout

advising the suspect of his true status when he does not otherwise know it." Ibid.

      Here, it is arguable that a criminal complaint or arrest warrant could have

draped no greater veil of suspicion on defendant and could have indicated no


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                                       31
greater risk of criminal liability than existed as a result of the collective police

investigation at the crime scene. That said, defendant has cited no authority that

extends the holding in A.G.D. to the pre-complaint or pre-warrant stage of an

investigation. Hence we do not find the Sergeant's misleading statement fatal

to the State's use of defendant's statement at trial.

      Sergeant Rodas' preliminary statement to defendant – "everyone has their

story, their part they have to talk about" – was couched in mandatory terms,

contrary to the Miranda warnings, and contrary to a suspect's right to remain

silent. Although the issue is one on which reasonable minds might differ, our

standard of review requires us to defer to the trial court's fact finding. Adhering

to our standard of review, we cannot conclude the trial court's determination –

the Sergeant's remarks did not render defendant's waiver of his Miranda rights

involuntary, unknowing, or unintelligent – was "clearly mistaken." State v. S.S.,

229 N.J. 360, 374 (2017) (quoting State v. Elders, 192 N.J. 224, 250 (2007)).

Accordingly, we affirm the trial court's decision denying defendant's motion to

suppress his statement to police.




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                                        32
                                      III.

      Next, defendant argues the trial court committed reversible error when it

refused to charge the jury on self-defense and passion-provocation

manslaughter. We agree.

                                       A.

      During the charge conference, as the court and the parties discussed the

offense of possession of a weapon for an unlawful purpose, defense counsel

commented defendant possessed the knife "for the purpose of self[-]defense."

The court responded:

            That then implicates the requirement that the State
            disprove self[-]defense beyond a reasonable doubt.
            There's no self[-]defense in this case. Even . . .
            exercising my independent obligation to search the
            record, even without a request, I see absolutely nothing
            beyond raw speculation that the defendant was faced
            with deadly force . . . the nature of which justified his
            use of deadly force to protect himself.

      In response, defense counsel pointed out that in his statement to police,

defendant said the victim had "gone for a knife" and was going to "stick it in

[him], and . . . she fell on it." The court questioned the impact a self-defense

charge would have on the defense that defendant did not act knowingly or

purposefully because of the degree of his intoxication.



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                                      33
      During further discussion, the court commented defendant's failure to file

a notice that he would be asserting self-defense, as required by Rule 3:12, "I

think is dispositive of the issue." The court added, "I think that to charge the

jury on self[-]defense under the evidential record before it will simply inflame

the jury. I can't imagine the jury looking at the photographs of [the victim] and

consider the defense of self[-]defense in that context and not be outraged by it."

The court also questioned how it could "now impose upon the State an obligation

to disprove self[-]defense beyond a reasonable doubt when the State had no

pretrial notice of it and [had] rested."

      The court added:

             [T]here is insufficient evidence before this [c]ourt to
             establish a rational basis for charging the jury with
             self[-]defense in this case. . . . Defendant's use of force,
             as articulated by counsel, constituted an exercise of the
             application of deadly force in face of evidence which
             shows that the force being used toward the defendant
             put him in de minimis danger of serious bodily injury
             or death.

                    Further, a reasonable review of the evidence is,
             as [the prosecutor] has characterized it, indicia of self-
             defense by a person literally fighting for her life.

                   Justification by self-defense further is
             unavailable if some lesser[-]degree of force could have
             been used to respond to an attack. So let's assume that
             [the victim] suffered a level of aggravation over not
             being paid for her prospective services that created in

                                                                            A-4925-15T1
                                           34
             her the initiative to attack [defendant]. The evidence of
             that attack is, as I have characterized it, injuries that you
             would get from aggravating a cat. They are not injuries
             which would establish, on any rational basis, the
             justification for the use of deadly force in response.

      Because defendant had not provided notice he intended to assert self-

defense, because the court saw no basis in the record for it, and because the court

believed a charge on self-defense would inflame the jury and deprive defendant

of a fair trial, the court refused to instruct the jury on self-defense.

      The New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9,

provides, "[t]he court shall not charge the jury with respect to an included

offense unless there is a rational basis for a verdict convicting the defendant of

the included offense." N.J.S.A. 2C:1-8(e). The statute has been interpreted to

require a rational basis in the evidence not only "for a jury to convict the

defendant of the included offense but . . . also . . . for a jury to acquit the

defendant of the charged offense before the court may instruct the jury on an

uncharged offense." State v. Brent, 137 N.J. 107, 113-14 (1994) (emphasis in

original) (citation omitted).

      "The rational-basis test sets a low threshold." State v. Carrero, 229 N.J.

118, 128 (2017) (citing State v. Crisantos, 102 N.J. 265, 278 (1986)). "As long

as a self-defense charge is requested and supported by some evidence in the


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                                         35
record, it must be given." State v. Rodriguez, 195 N.J. 165, 174 (2008). Thus,

"if 'any evidence raising the issue of self-defense is admitted in either the State's

or the defendant's case, then the jury must be instructed that the State is required

to prove beyond a reasonable doubt that the self-defense claim does not accord

with the facts.'" State v. O'Carroll, 385 N.J. Super. 211, 236 (App. Div. 2006)

(quoting State v. Burks, 280 N.J. Super. 595, 604 (App. Div. 1986)).

      Significantly, "[i]n deciding whether the rational-basis test has been

satisfied, the trial court must view the evidence in the light most favorable to

the defendant." Carrero, 229 N.J. at 128 (citing State v. Mauricio, 117 N.J. 402,

412 (1990)). Equally significant, "[a] defendant is entitled to a lesser -included

offense instruction rationally supported by the evidence, even if the instruction

is inconsistent with the defense theory." Ibid. (citing State v. Brent, 137 N.J.

107, 118 (1994)).

      Here, as part of its case, the State played the entire video recording of

defendant's statement. In that statement, defendant said that when he told the

victim she could not leave with his money, the victim took a knife and attacked

him with it. According to defendant's statement, the victim "got all over me

with the knife[.]" The defendant said in his statement that he and the victim

fought and wrestled, and when he moved to the side, she followed him. When


                                                                             A-4925-15T1
                                        36
specifically asked, he said he never took the knife from her. Rather, as the

altercation moved into the bedroom, and he was still struggling to keep her from

stabbing him, she tripped on the bed, fell on the dresser while they were both

holding the knife, and "[t]hat was when it went in her [neck]."

       The trial court declined to charge on self-defense because defendant had

not timely notified the State. If the State had evidence to disprove self-defense

that it did not present due to the lack of notice, it could have requested

permission to reopen its case and present the evidence. Regardless, the State's

own case included "evidence in the record" that supported a self-defense charge.

Rodriguez, 195 N.J. at 174.

       The State contends the force defendant used against the victim "was

grossly disproportionate to the alleged force used by [the victim], which resulted

in only relatively minor injuries for which defendant declined any medical

attention." The State overlooks, as did the court, defendant's version of events

that he sustained the injuries in an attempt to prevent the victim from stabbing

him.

       In short, defendant requested the self-defense charge and it was supported

by evidence in the record. Rodriguez, 195 N.J. at 174; O'Carroll, 385 N.J. Super.




                                                                          A-4925-15T1
                                       37
at 236. The trial court should have granted defendant's request for a jury

instruction on self-defense.

                                       B.

      We reach the same result concerning defendant's request, and the court's

denial, of a jury instruction on passion-provocation manslaughter.

                   Passion/provocation manslaughter has four
            essential elements: [1] the provocation must be
            adequate; [2] the defendant must not have had time to
            cool off between the provocation and the slaying; [3]
            the provocation must have actually impassioned the
            defendant; and [4] the defendant must not have actually
            cooled off before the slaying. The first two elements
            are assessed objectively, while the third and fourth are
            more subjective because they relate to the defendant's
            actual response. To warrant the passion/provocation
            jury charge, the evidence must rationally support only
            the first two elements; the subjective elements should
            usually be left to the jury to determine.

            [Carrero, 229 N.J. at 129 (citations omitted).]

      Although words alone cannot satisfy the first element, the presence of a

gun or knife can, and "[b]attery is also considered adequate provocation 'almost

as a matter of law.'" Ibid. (citing Mauricio, 117 N.J. at 414).

      Viewing the evidence in the light most favorable to defendant, a factfinder

could determine that the victim grabbed the knife and attempted to stab him.

That conduct and the ensuing struggle, if believed, rose to the level of adequate


                                                                         A-4925-15T1
                                       38
provocation. Id. at 130. According to defendant's statement, there was not a

cooling off period. The trial court thus should have granted defendant's request

to charge passion-provocation manslaughter.

                                         C.

      It is beyond dispute that "[a]ppropriate and proper charges to a jury are

essential for a fair trial." Carrero, 229 N.J. at 127 (quoting State v. Daniels, 224,

N.J. 168, 180 (2016)). Moreover, the Supreme Court has "repeatedly held that

'erroneous instructions on material points are presumed to be reversible error.'"

Ibid. (quoting State v. Nelson, 173 N.J. 417, 446 (2002)). Here, the trial court's

refusal to grant defendant's request to charge self-defense and passion/

provocation manslaughter, despite evidence in the State's case raising those

issues, constituted reversible error. Accordingly, we reverse and remand for a

new trial.

      In view of our decision, we need not address defendant's argument that

his sentence is excessive.

      Reversed and remanded for a new trial. We do not retain jurisdiction.




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                                        39
