                                NOT FOR PUBLICATION WITHOUT THE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-4039-18T2

STATE OF NEW JERSEY,

          Plaintiff-Appellant,

v.

MICHAEL D. WHITE,

     Defendant-Respondent.
____________________________

                    Submitted August 13, 2019 – Decided August 30, 2019

                    Before Judges Sumners and Moynihan.

                    On appeal from an interlocutory order of the Superior
                    Court of New Jersey, Law Division, Gloucester
                    County, Indictment No. 18-01-0079.

                    Charles A. Fiore, Gloucester County Prosecutor,
                    attorney for appellant (Elizabeth Katherine Tornese,
                    Assistant Prosecutor, on the brief).

                    Joseph E. Krakora, Public Defender, attorney for
                    respondent (Ronald Craig Appleby, Assistant Deputy
                    Public Defender, on the brief).

PER CURIAM
      By leave granted, the State appeals from the motion judge's order granting

defendant Michael D. White's motion to suppress two statements he gave to

detectives to which he presented himself after learning he was suspected of

involvement in a shooting in the apartment complex in which he lived; and from

the denial of its subsequent motion for reconsideration. It argues:

            POINT I

            THE SUPPRESSION ORDER AND DENIAL OF
            RECONSIDERATION MUST BE REVERSED AS
            THE TOTALITY OF THE CIRCUMSTANCES
            DEMONSTRATE THAT DEFENDANT KNEW WHY
            HE WAS SPEAKING WITH DETECTIVES AND
            VOLUNTARILY WAIVED HIS MIRANDA RIGHTS
            TWICE.

            POINT II

            THE TRIAL COURT ERRONEOUSLY APPLIED
            THE FIVE-FACTOR TEST SET FORTH IN STATE
            V. O'NEILL WHEN THE FACTS DICTATE THE USE
            OF THE TRADITIONAL TOTALITY OF THE
            CIRCUMSTANCES ANALYSIS.

Unpersuaded by these arguments, we affirm.

      When reviewing a judge's ruling on a motion to suppress, we defer to those

factual findings that are supported by sufficient record evidence but disregard

findings that are clearly mistaken. State v. Hubbard, 222 N.J. 249, 262 (2015).

We, however, review the judge's legal conclusions de novo. Id. at 263.


                                                                         A-4039-18T2
                                       2
       From the motion judge's supported findings, we glean defendant was

arrested when he reported to the Glassboro police department approximately

twenty-four hours after a complaint-warrant, see Rule 3:2-1; Rule 3:2-3, was

filed on October 28, 2017, by a Glassboro police detective charging defendant

with crimes related to the shooting death of Michael Fleming, including first-

degree murder.1 Police investigation following discovery of the victim on

October 28 revealed the victim's girlfriend, who knew defendant for "at least

seven years" prior to the shooting, identified defendant as the person who shot

and killed Fleming.

       There is no evidence defendant was processed on the complaint-warrant

or advised of the charges by the arresting officers. A little more than an hour

after defendant arrived at the police department, the Glassboro detective and a

Gloucester County Prosecutor's Office detective administered Miranda2

warnings and took a statement from defendant.       Neither detective advised




1
  The complaint-warrant is not part of the appellate record so we do not know
the exact charges set forth therein except as set forth in the motion judge's
opinion.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                                                       A-4039-18T2
                                       3
defendant of the charges against him. That failure necessitates the suppression

of the statement defendant gave to them.

      In State v. Vincenty, our Supreme Court restated its holding in State v.

A.G.D., 178 N.J. 56, 68 (2003), that "[t]he 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." 237 N.J. 122, 125 (2019) (alteration in original) (quoting

A.G.D., 178 N.J. at 68). The detectives who questioned Vincenty advised him:

he had been identified from a video recording, photograph and DNA evidence

as one of the assailants in an armed attempted robbery and attempted murder of

a victim;3 the judge had already charged him after police showed the judge

evidence; the charges included gun charges. Id. at 126-28. Detectives also

showed Vincenty "a list of the charges and explained to him that he had been

charged with attempted homicide, robbery, and conspiracy to commit robbery."

Id. at 128. The Court disagreed with our ruling that the record showed Vincenty

was advised of the charges against him and, instead, determined the failure to




3
  Vincenty "acknowledged that he looked like one of the assailants." Vincenty,
237 N.J. at 136.
                                                                       A-4039-18T2
                                      4
advise Vincenty of those charges "deprived [him] of the ability to knowingly

and intelligently waive his right against self-incrimination." Id. at 126.

      No doubt mindful of its holding in State v. Nyhammer, 197 N.J. 383, 404

(2009) – that "[t]he issuance of a criminal complaint and arrest warrant by a

judge is an objectively verifiable and distinctive step, a bright line, when the

forces of the state stand arrayed against the individual" – the Court reiterated

the basis for suppression as enunciated in A.G.D.:

            This Court held that the defendant's confession should
            have been suppressed, A.G.D., 178 N.J. at 69, because
            the "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," id. at 68. If suspects are not informed that a
            criminal complaint or arrest warrant has been filed
            against them, they necessarily lack "critically important
            information" and thus "the State cannot sustain its
            burden" of proving a suspect has knowingly and
            intelligently waived the right against self-
            incrimination. Ibid. Because the detectives failed to
            inform the defendant that an arrest warrant had been
            issued, the defendant in A.G.D. was simply unable to
            execute a knowing and intelligent waiver of his right
            against self-incrimination. Ibid.

            [Vincenty, 237 N.J. at 133-34 (emphasis added).]

       The Vincenty Court explicated that charged defendants may waive their

right against self-incrimination, but,


                                                                             A-4039-18T2
                                         5
            [a]s that chain of events demonstrates, Vincenty's
            ability to knowingly and intelligently decide whether to
            waive his right against self-incrimination was
            fundamentally altered when he was informed of the
            criminal charges filed against him. Rather than inform
            Vincenty fully of the charges at the outset, the
            detectives told him at various points during the
            interrogation that some type of charges were filed
            against him. It was not until late in the interrogation --
            well after the detectives read Vincenty his rights and
            asked him to waive his right against self-incrimination
            -- that the detectives detailed the actual charges
            Vincenty was facing. At the point when the detectives
            asked Vincenty to waive his right against self-
            incrimination, they failed to inform him of the specific
            criminal charges filed against him. Withholding that
            "critically important information" deprived Vincenty of
            the ability to knowingly and voluntarily waive the right
            against self-incrimination.

            [Id. at 135 (emphasis added).]

The Court's holding makes clear, as the motion judge perceived, the failure of

police to advise a defendant of the specific charges set forth in the filed

complaint-warrant leaves the State without ability to prove that the defendant

knowingly and intelligently waived his or her right against self-incrimination.

See ibid.

      In State v. Henderson, 397 N.J. Super. 398 (App. Div. 2008), aff'd as

modified, 208 N.J. 208 (2011), police advised a defendant they had an warrant

for his arrest and were taking him to the homicide unit; the defendant responded


                                                                         A-4039-18T2
                                        6
he knew "what it's all about." Id. at 404. We "decline[d] the invitation to hold

that the principles announced in A.G.D. extend to also informing an accused of

the basis for the arrest warrant, particularly . . . when defendant well-understood

why he was arrested." Ibid. The Vincenty Court did not so decline and required

that police advise a defendant of the details of a defendant's particular charges .

See Vincenty, 237 N.J. at 134.

      It was not enough, as the State contends, that defendant knew he was a

suspect in Fleming's shooting when he walked into the police department. As

the motion judge found, the State failed to present clear evidence that defendant

knew from the accusations he heard prior to going to the police department that

the victim of the shooting was dead. Even if he did know, police were still

obligated to explicitly advise him of the charges lodged in the complaint-

warrant. Like the "defendant in A.G.D.[,] [defendant] was purposely kept in the

dark by his interlocutors of this indispensable information." Nyhammer, 197

N.J. at 404-05. The State's failure to offer evidence that defendant was fully

informed of those charges leaves it unable to prove beyond a reasonable doubt

that defendant waived his right against self-incrimination, necessitating

suppression of the statement he gave to the Glassboro and Gloucester County

Prosecutor's Office detectives.


                                                                           A-4039-18T2
                                        7
      The motion judge also suppressed the statement defendant gave to a New

Jersey State Police detective which commenced about two-and-one-quarter

hours after the first statement ended. That detective had been called in to

administer a polygraph examination to defendant. After it was determined the

polygraph could not be administered because defendant had self-inflicted cuts

on his arms, defendant and the detective, according to the motion judge,

"continued to talk about the shooting [and] [e]ventually[] [defendant] confessed

that he shot and killed . . . Fleming."      Notably, at the start of the second

statement, defendant was re-Mirandized and advised by the Glassboro detective

"of the charges in the compliant[-]warrant, most specifically the murder."

      The State argues the motion judge erred by applying the five-factor test

set forth in State v. O'Neill, 193 N.J. 148, 180-81 (2007), instead of the totality-

of-the-circumstances test set forth in Nyhammer, 193 N.J. at               404, in

determining that the "spill over" from defendant's first statement required

suppression of the statement to the State police detective. We are unconvinced.

      The Nyhammer Court recounted:

            In O'Neill, we applied the totality-of-the-circumstances
            approach     to   the     "'question-first,    warn-later'
            interrogation procedure," in which the police first
            question a suspect in custody without the benefit of
            Miranda warnings and, after eliciting incriminating
            statements, then issue Miranda warnings and resume

                                                                            A-4039-18T2
                                         8
      questioning for the purpose of eliciting incriminating
      statements admissible at trial. 193 N.J. at 154-55. We
      held "that when Miranda warnings are given after a
      custodial interrogation has already produced
      incriminating statements, the admissibility of post-
      warning statements will turn on whether the warnings
      functioned effectively in providing the defendant the
      ability to exercise his state law privilege against self-
      incrimination."     Id. at 180-81.      In O'Neill, we
      specifically eschewed a bright-line rule and instead
      followed a traditional multi-prong test requiring a
      consideration of all relevant factors. Id. at 181.

      [Nyhammer, 197 N.J. at 404 (second emphasis added).]

In O'Neill, the Court held, as a matter of State law,

      when Miranda warnings are given after a custodial
      interrogation has already produced incriminating
      statements, the admissibility of post-warning
      statements will turn on whether the warnings
      functioned effectively in providing the defendant the
      ability to exercise his state law privilege against self-
      incrimination. In making that determination, courts
      should consider all relevant factors, including: (1) the
      extent of questioning and the nature of any admissions
      made by defendant before being informed of his
      Miranda rights; (2) the proximity in time and place
      between the pre- and post-warning questioning; (3)
      whether the same law enforcement officers conducted
      both the unwarned and warned interrogations; (4)
      whether the officers informed defendant that his pre-
      warning statements could not be used against him; and
      (5) the degree to which the post-warning questioning is
      a continuation of the pre-warning questioning. The
      factual circumstances in each case will determine the
      appropriate weight to be accorded to any factor or
      group of factors.

                                                                  A-4039-18T2
                                  9
            [O'Neill, 193 N.J. at 181-82.]

      The Court recognized Miranda's five required warnings "ensure that an

individual would have a meaningful opportunity to exercise his right against

self-incrimination," and that the burden is on the State "to demonstrate not only

that the individual was informed of his rights, but also that he has knowingly,

voluntarily, and intelligently waived those rights, before any evidence acquired

through the 'interrogation can be used against him.'" Nyhammer, 197 N.J. at

400-01 (quoting Miranda, 384 U.S. at 467). "The essential purpose of Miranda

is to empower a person—subject to custodial interrogation within a police-

dominated atmosphere—with knowledge of his basic constitutional rights so

that he can exercise, according to his free will, the right against self-

incrimination or waive that right and answer questions." Id. at 406.

      Similarly, the requirement that a charged defendant be apprised of the

charges in the complaint-warrant – what Judge Arnold described as a sixth

Miranda warning added by our Supreme Court in A.G.D.4 – provides

information, without which accused defendants "cannot knowingly and

intelligently determine whether to waive their right against self-incrimination



4
  32 N.J. Practice, Criminal Practice and Procedure, §17.4, at 250-51 (Leonard
N. Arnold) (2018 ed.).
                                                                         A-4039-18T2
                                      10
. . . ." Vincenty, 237 N.J. at 134. Thus, we perceive no reason why the O'Neill

analysis should not be followed here.

      We discern no difference between the scenario in O'Neill where police

failed to initially administer Miranda warnings and this case where they failed

to initially advise defendant of his charges. The O'Neill Court determined the

"principle established in . . . A.G.D.—that police officers conducting a custodial

interrogation cannot withhold essential information necessary for the exercise

of the privilege—is equally applicable here" where detectives, prior to

administering Miranda warnings, questioned the defendant and "extract[ed]

damning admissions." O'Neill, 193 N.J. at 179.

            The two-step, "question-first, warn-later" interrogation
            [utilized by the detectives in O'Neill] is a technique
            devised to undermine both the efficacy of Miranda and
            our state law privilege. As in . . . A.G.D., we must set
            clear standards that will discourage law enforcement
            agencies from engaging in conduct that will deny a
            defendant subject to a custodial interrogation a true
            opportunity to assert his right against self-
            incrimination.

            [Id. at 180.]

      The failure to inform defendant of the charges against him was the type

of "end-run[] around Miranda" decried by the O'Neill Court, O'Neill, 193 N.J.

at 184-85; as such, it is the equivalent of a failure to advise defendant of his


                                                                          A-4039-18T2
                                        11
Miranda rights. Unlike State v. Yohnnson, 204 N.J. 43, 61 (2010), relied upon

by the State, where the investigators had no reason to believe that the arresting

officers did not Mirandize the defendant, the Glassboro detective prepared the

complaint-warrant and, as the motion judge found, the State presented no

evidence that defendant was advised of the charges after he presented at the

police department and before that Glassboro detective first contacted him.

      We fully agree with the motion judge's relation of his findings to the five

O'Neill factors. Much like the defendant in O'Neill who "had delivered to the

detectives a motive, opportunity, and personal involvement in a crime that the

detectives were able to exploit in further questioning defendant," id. at 182,

defendant, in his initial statement provided detectives with inculpatory

information, including, as the motion judge found,

            knowing the victim, being present in the . . . apartment
            complex on the evening of the murder, engaging in
            prior drug transactions with the victim, having a prior
            dispute with the victim over a motor vehicle [which
            dispute also involved the mother of the victim's
            girlfriend who identified defendant as the shooter], and
            believing that someone from the apartment complex
            who knew of his drug distribution habits set him up for
            the home[-]invasion robbery which took place in his
            apartment and in front of the females and children that
            resided with him




                                                                         A-4039-18T2
                                      12
after defendant stopped buying marijuana from a supplier to whom he had been

introduced by the victim.

      The judge also found the State Police detective questioned defendant

about two-and-one-half hours after the first statement was taken by the

Glassboro and Prosecutor's Office detectives "under basically the same

circumstances and environment": under arrest in the same police station, in the

same or similar room. Although the judge acknowledged different detectives

conducted the two interviews, the Glassboro detective "introduced the second

session by advising [d]efendant of the charges against him." The judge also

noted the subject matter of both interviews "was identical" save for the

discussion about the polygraph and that the State Police detective was briefed

by the other two detectives "and the briefing would most definitely have

included the statements made by [d]efendant during the first session." The judge

further found there was no evidence defendant was informed that any statement

he made during the first interview could not be used against him; defendant,

therefore, "proceeded with the second interrogation session with the knowledge"

that the inculpatory statements he made during the first session could be used

against him. Lastly, the judge found, notwithstanding the break between the

first and second statements, the second statement "was a continuation of the


                                                                        A-4039-18T2
                                      13
earlier interrogation" with the subject matter, environment and defendant's

custodial status remaining the same.

      Under the tenets announced in O'Neill, we see no error in the judge's

determinations.5

      Affirmed.




5
   Although we determine the O'Neill factors should be used in analyzing the
admissibility of defendant's second statement, we note the motion judge also
concluded that although most of the traditional totality of the circumstances
factors – defendant's personal characteristics and prior experience with the
criminal justice system, police techniques and the length of the statements –
supported a finding of voluntariness, the second statement's inextricable link to
the first mandated suppression of the latter statement.


                                                                         A-4039-18T2
                                       14
