               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2568-17T4

STATE OF NEW JERSEY,
                                      APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                             February 19, 2020

v.                                        APPELLATE DIVISION


JOHN G. HAGER, a/k/a
JOHN G. HAGER, JR.,
and JACK,

     Defendant-Appellant.
_________________________

           Submitted December 11, 2019 – Decided February 19, 2020

           Before Judges Koblitz, Whipple and Gooden Brown.

           On appeal from the Superior Court of New Jersey,
           Law Division, Gloucester County, Indictment No. 14-
           07-0678.

           Joseph E. Krakora, Public Defender, attorney for
           appellant (Michael Timothy Denny, Assistant Deputy
           Public Defender, of counsel and on the briefs).

           Charles A. Fiore, Gloucester County Prosecutor,
           attorney for respondent (Staci L. Scheetz, Senior
           Assistant Prosecutor, on the brief).

     The opinion of the court was delivered by

GOODEN BROWN, J.A.D.
       In this case, we consider whether the omission of one of the Miranda1

warnings during custodial interrogation adequately conveys the substance of

the warnings. Defendant was charged in a three-count indictment with third-

degree terroristic threats, N.J.S.A. 2C:12-3(a); fourth-degree resisting arrest,

N.J.S.A. 2C:29-2(a)(2); and second-degree certain persons not to have

weapons, N.J.S.A. 2C:39-7(b). The charges stemmed from an altercation at

defendant's home, as a result of which responding officers placed defendant

under arrest.      During the ensuing custodial interrogation, in which it is

undisputed defendant was administered incomplete Miranda warnings,

defendant disclosed the location of a BB gun in his home, leading to the

issuance of a search warrant and the seizure of the gun.

       Following a bifurcated jury trial in which defendant's statement was

admitted, defendant was convicted of a lesser-included disorderly persons

offense of resisting arrest, N.J.S.A. 2C:29-2(a)(1), and acquitted of terroristic

threats. Prior to the second trial on the certain persons charge, defendant

entered a negotiated guilty plea to an amended charge of third-degree unlawful

possession of a BB gun, N.J.S.A. 2C:39-5(b)(2). He was sentenced to an

aggregate five-year probationary term, conditioned upon serving 100 days in

the county jail.

1
    Miranda v. Arizona, 384 U.S. 436 (1966).


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      On appeal, defendant raises the following single point for our

consideration:

            POINT I

            THE      [MIRANDA]     WARNING      WAS
            FUNDAMENTALLY FLAWED BECAUSE IT DID
            NOT INFORM THE DEFENDANT THAT HE HAD
            A RIGHT TO HAVE COUNSEL PROVIDED FOR
            HIM IF HE COULD NOT AFFORD IT, VIOLATING
            HIS RIGHTS TO DUE PROCESS AND A FAIR
            TRIAL, AND REQUIRING SUPPRESSION OF HIS
            STATEMENT AND THE PHYSICAL EVIDENCE
            FOUND AS A RESULT.

      We accept the trial judge's factual findings following the Miranda

hearing, as they are supported by sufficient, credible evidence in the record.

See State v. Gandhi, 201 N.J. 161, 200 (2010) (quoting State v. Elders, 192

N.J. 224, 243 (2007)).        However, reviewing de novo the judge's legal

conclusions that flow from those facts, see State v. Mann, 203 N.J. 328, 337

(2010), we conclude the statements defendant made during custodial

interrogation should have been excluded at trial. Thus, we reverse defendant's

convictions and remand for a new trial.       Nevertheless, we are satisfied

suppression of the physical evidence seized as a result of defendant's

statements is not required.

      Following the Miranda hearing, the judge issued a May 17, 2017 written

decision denying defendant's motion to suppress his statements and the



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evidence seized as a result. The judge summarized his factual findings as

follows:

                 On February 23, 2014, patrols from the Logan
           Township Police Department were dispatched to . . .
           Main Street in Bridgeport . . . regarding an altercation
           involving [an] alleged terroristic threat. Upon arrival,
           the patrol officers spoke with the caller, [D.W.]
           [D.W.] was [d]efendant's tenant and [d]efendant's
           apartment was located above [D.W.'s] residence.
           [D.W.] informed the officer that while she was out,
           [d]efendant threatened to shoot her son, [Z.W.], if the
           trashcans were moved again. [Z.W.] informed the
           officers that [d]efendant knocked on his bedroom
           window and said, "move them again and I'll shoot you
           mother fucker." [Z.W.] claimed that he moved the
           trashcans in order for his mother to be able to park her
           vehicle.

                  Based on previous reports, the patrol officers
           were aware that [d]efendant had a BB gun. Speaking
           through a window, the officers told [d]efendant that he
           needed to come to the door and talk with them because
           he was being charged with terroristic threats.
           Defendant refused to come to the door and informed
           patrols he was threatening his brother, not [Z.W.]
           Defendant was then advised that he was under arrest
           several times and instructed to open up or the officers
           would have to kick down the front door. [Sgt.] Flatley
           kicked in the first level door, and gave more warnings
           at the top of the stairs. Defendant still refused to open
           the door, so the officers then kicked in the door to the
           second floor apartment. Defendant ran into the
           bedroom, but came out after a few verbal commands.
           Defendant was placed under arrest following a short
           struggle, removed from the residence, and brought
           down to the police vehicle.




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                                      4
     Based on his review of the arrest recorded on Flatley's police vehicle

mobile video recorder (MVR), the judge found:

                  Sgt. Flatley then began to read [d]efendant his
           rights pursuant to Miranda; however, [d]efendant
           continuously interrupted the officer. Following the
           Miranda warnings, [d]efendant voluntarily answered
           questions relating to various items that were located in
           his apartment, particularly the location of the BB gun.
           Defendant told the officers that he had a BB gun and a
           flare gun in a box located in the bedroom next to the
           kitchen. Additionally, [d]efendant acknowledged that
           although he possessed these items, he believed he was
           allowed to, despite being a convicted felon.
           Defendant was then transported to police
           headquarters.

                  Once at headquarters, unbeknownst to
           [d]efendant, an officer immediately turned on the
           recording device, where [d]efendant was handcuffed
           in his seat. Sgt. Flatley advised [Ofc.] Hopkins that
           [d]efendant had been previously advised of his
           Miranda rights, and that he acknowledged and waived
           his right to remain silent and to have counsel present
           during questioning. The State has confirmed that no
           Miranda card exists.         Ofc. Hopkins spoke with
           [d]efendant in the booking area to gain information for
           the generation of a search warrant. Ofc. Hopkins
           asked [d]efendant for a specific location of the
           firearms in the residence and [d]efendant again stated
           that the firearms were located in a brown box in the
           bedroom next to the kitchen. Defendant further stated
           that the key to the box was located on top of the
           refrigerator in the kitchen.

                 The police subsequently sought a warrant to
           search [d]efendant's house. . . . [A] search warrant
           was issued, and . . . several items, including the BB
           gun and flare gun were found in the brown box.

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                                      5
      Preliminarily, the judge determined that the statements made after

defendant was arrested, removed from his apartment, and brought to the police

vehicle, were the product of a custodial interrogation for which Miranda

warnings were required as a precondition to admissibility. Thus, the judge

correctly posited that "the issue [was] whether the substance of the Miranda

rights" conveyed to defendant "adequately informed [him] of his constitutional

rights."

      Relevant to that inquiry, the judge acknowledged that

            when the officer was trying to administer the
            warnings, [d]efendant was very loud and
            argumentative, and continuously interrupted the
            officer. The officer stated to [d]efendant,

                  . . . [Y]ou have the right to remain silent
                  . . . Anything you say can and will be
                  used against you in a court of law . . .
                  You have the right to speak to an attorney
                  and have one present with you before
                  you're questioned. Okay? Once you've
                  answered questions, you have the right to
                  stop answering questions [2] . . . You have
                  the right to stop answering questions at
                  any point in time.


2
   The judge pointed out that there was "a discrepancy" between the MVR
transcript and the MVR audio, both of which the judge reviewed. According
to the judge, the audio "clearly indicate[d] that Sgt. Flatley advised [d]efendant
that once he started answering questions, he had the right to stop answering
questions at any time."


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                                        6
                    However, the officer was interrupted by
            [d]efendant before he could advise [d]efendant that
            . . . if he could not afford an attorney, one would be
            provided to him. Afterwards, [d]efendant continued to
            be very loud and argumentative, and the officer did
            not have the opportunity to complete the warnings.

      Nonetheless, the judge concluded that "the warnings used adequately

informed [d]efendant of his constitutional rights," and "any statements made

[were] admissible." Moreover, the judge reasoned that "[e]ven if [d]efendant

had not been properly advised of his Miranda rights," the statements made at

the police station four hours later were "nevertheless admissible because they

were part of the routine booking procedure and [d]efendant volunteered the

information without being asked."

      Next, the judge considered the totality of the circumstances and

concluded "[d]efendant knowingly, intelligently, and voluntarily waived his

rights." The judge explained:

            Defendant was [fifty-nine] at the time of the arrest.
            While [d]efendant has not had an indictable conviction
            since his 1993 convictions for arson and contempt, the
            police were familiar with this [d]efendant based on
            previous reports, as they were aware he might have a
            BB gun in his apartment. Defendant made statements
            immediately after being administered the Miranda
            warnings, and again four hours later. Neither of the
            lapses of time are viewed as significant. Although
            there is a four-hour gap between [d]efendant being
            advised of his Miranda rights and further statements
            given to Ofc. Hopkins, there is no requirement for the
            warnings to be repeated, as there was no intervening

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                                      7
            event between the arrest and the police department.
            The statements made by [d]efendant were given in one
            continuing event through the evening and there was
            nothing which would dilute the efficacy of the original
            warning.

                  Lastly, the circumstances surrounding the
            statements do not involve physical abuse . . . . The
            videos reflect that the statements made by [d]efendant
            were a deliberate choice rather than one made from
            coercion, deception, or intimidation, and were made
            with the full awareness of what he was saying. . . .
            There is no indication that [d]efendant could not
            understand English, but rather, [d]efendant was able to
            understand questions and talk with the officers.
            Further, there is no indication that [d]efendant's
            diabetes had any effect whatsoever on [d]efendant's
            cognition or his ability to provide a valid statement or
            waiver. Finally, the fact that [d]efendant chose to
            speak after being advised of his Miranda rights is
            highly probative in determining that the statements
            given by the defendant were knowing, intelligent, and
            voluntary.

Accordingly, the judge concluded "[d]efendant validly waived his Miranda

rights, and any statements made [were] admissible."

      On appeal, defendant argues the judge's conclusion that the Miranda

warnings used adequately informed him of his constitutional rights "was error

as was the conclusion that [defendant] knowingly and voluntarily waived his

rights." Defendant asserts "his statement, and the BB gun found as a result of

this unwarned interrogation must be suppressed."




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                                       8
      "One of the most fundamental rights protected by both the Federal

Constitution and state law is the right against self-incrimination." State v.

O'Neill, 193 N.J. 148, 167 (2007). See U.S. Const. amend. V ("No person . . .

shall be compelled in any criminal case to be a witness against himself . . . .");

N.J.S.A. 2A:84A-19 ("[E]very natural person has a right to refuse to disclose

in an action or to a police officer or other official any matter that will

incriminate him . . . ."); N.J.R.E. 503 (same).       In Miranda, "[t]he Court

resolved to put in place safeguards to protect the privilege and counteract the

'inherently compelling pressures which work to undermine the individual's will

to resist and to compel [an individual subject to custodial interrogation] to

speak where he would not otherwise do so freely.'" O'Neill, 193 N.J. at 167

(second alteration in original) (quoting Miranda, 384 U.S. at 467).

            To ensure that an individual would have a meaningful
            opportunity to exercise the privilege, the Court
            decreed that an individual who is "subjected to police
            interrogation while in custody at the station or
            otherwise deprived of his freedom of action in any
            significant way," "must be adequately and effectively
            apprised of his rights." To that end, the Court
            mandated that "unless other fully effective means are
            adopted to notify the person of his right of silence,"
            the following warnings must be given to a person in
            police custody before interrogation begins:

                  He must be warned prior to any
                  questioning that he has the right to remain
                  silent, that anything he says can be used
                  against him in a court of law, that he has

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                                        9
                  the right to the presence of an attorney,
                  and that if he cannot afford an attorney
                  one will be appointed for him prior to any
                  questioning if he so desires. Opportunity
                  to exercise these rights must be afforded
                  to him throughout the interrogation.

            The Court held that after the individual is advised of
            his rights and given an opportunity to exercise them,
            he then "may knowingly and intelligently waive
            [them] and agree to answer questions or make a
            statement." Unless the prosecution demonstrates that
            the individual was informed of his rights and
            knowingly, voluntarily, and intelligently waived them,
            "no evidence obtained as a result of interrogation can
            be used against him."

            [Id. at 168 (alteration in original) (quoting Miranda,
            384 U.S. at 467-77, 479) (citations omitted).]

      Our Supreme Court has consistently "stressed, as a matter of state law ,"

that principles of Miranda inform our privilege against self-incrimination.

State v. Reed, 133 N.J. 237, 258-59 (1993). See, e.g., State v. Nyhammer, 197

N.J. 383, 400-01 (2009). While the Court "does not require that any specific

language be used to inform an accused of his rights," "[w]ords which convey

the substance of the warning along with the required information" are required.

State v. Melvin, 65 N.J. 1, 14 (1974).

      In United States v. Patane, 542 U.S. 630 (2004), the United States

Supreme Court acknowledged that statements generated from questioning

conducted following partial Miranda warnings are inadmissible at trial,



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                                         10
notwithstanding the fact that the defendant interrupted the completion of the

warnings.   Id. at 635 n.1.    Because the violation occurs "only upon the

admission of unwarned statements into evidence at trial," "'[t]he exclusion of

unwarned statements . . . is a complete and sufficient remedy' for any

perceived Miranda violation." Id. at 641-42 (alterations in original) (quoting

Chavez v. Martinez, 538 U.S. 760, 790 (2003)).

      Here, it is undisputed that defendant was never informed of all the

Miranda rights, was never advised of his right to appointed counsel if he could

not afford to hire an attorney, and never acknowledged waiving his rights

orally or in writing. Nonetheless, the judge determined the substance of the

Miranda warnings was conveyed, and defendant knowingly, intelligently, and

voluntarily waived his rights. We disagree that the omission of a critical right

can be construed as "convey[ing] the substance of the [Miranda] warning[s]

along with the required information." Melvin, 65 N.J. at 14 (quoting United

States v. Vanterpool, 394 F.2d 697, 698-99 (2d Cir. 1968)). While neither a

"talismanic incantation," "a verbatim recital of the words of the Miranda

opinion" nor a "precise formulation of the warnings" has ever been "required

to satisfy [Miranda's] strictures," California v. Prysock, 453 U.S. 355, 359-60

(1981), omission of a right has never been countenanced in our courts. Thus,




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                                      11
we conclude that in the circumstances of this case, the requirements of

Miranda were not met and both statements should have been excluded.

      Likewise, we disagree with the judge's alternate determination that the

statement made at the police station was volunteered and thereby admissible.

While "Miranda has no application to statements that are 'volunteered,'" State

v. Brabham, 413 N.J. Super. 196, 210 (App. Div. 2010) (quoting Miranda, 384

U.S. at 478), "[i]nterrogation triggering the State's obligation to deliver

Miranda warnings requires 'words or actions on the part of the police that they

should have known were reasonably likely to elicit an incriminating

response.'" Id. at 210-11 (quoting Rhode Island v. Innis, 446 U.S. 291, 303

(1980)). Here, the undisputed evidence shows defendant was asked pointed

questions reasonably likely to evoke an incriminating response, namely, the

location of the BB gun.

      The judge attributed the officer's omission of the critical warning to

defendant's continuous interruptions, essentially inferring some type of waiver

on defendant's part. "There is some authority for the proposition that a suspect

may waive Miranda warnings by interrupting their delivery." Id. at 209 n.3.

See State v. Perez, 157 N.W.2d 162, 164 (Neb. 1968); State v. Walden, 336

N.W.2d 629, 632 (N.D. 1983); State v. Thomas, 553 P.2d 1357, 1363 (Wash.

Ct. App. 1976); Johnson v. State, 772 S.W.2d 322, 324 (Ark. 1989); People v.



                                                                        A-2568-17T4
                                      12
Nitschmann, 41 Cal. Rptr. 2d 325, 327-28 (Ct. App. 1995). "Other courts have

held that the warnings cannot be waived." Brabham, 413 N.J. Super. at 209

n.3. See State v. Verdugo, 164 P.3d 966, 970-72 (N.M. Ct. App. 2007); State

v. DeWeese, 582 S.E.2d 786, 797 (W. Va. 2003); see generally 2 Wayne R.

LaFave et al., Crim. Proc. § 6.8(a) at 799 (3d ed. 2007) (discussing the issue of

waiver by conduct).

      We believe the better approach is the one endorsed in Patane, 542 U.S.

at 635, 635 n.1 (noting the government's concession that a defendant's

interruption does not relieve the government of its obligation to deliver

Miranda warnings), and, of course, Miranda, 384 U.S. at 479 (holding that

"unless and until such warnings and waiver are demonstrated by the

prosecution at trial, no evidence obtained as a result of interrogation can be

used"). Our conclusion "leaves us to consider whether the admission of the

statements defendant made . . . was harmless error," Brabham, 413 N.J. Super.

at 211, requiring reversal if the error "is of such a nature as to have been

clearly capable of producing an unjust result." R. 2:10-2. To be sure, "before

a federal constitutional error can be held harmless, the court must be able to

declare a belief that it was harmless beyond a reasonable doubt."        State v.

Castagna, 187 N.J. 293, 312 (2006) (quoting Chapman v. California, 386 U.S.

18, 24 (1967)).



                                                                        A-2568-17T4
                                       13
      At the jury trial, evidence of defendant's guilt was not overwhelming as

evidenced by the fact that he was acquitted of the most serious charge and

convicted of a lesser included disorderly persons offense. "While we have no

doubt that the admissible evidence is adequate to permit a conviction, it is not

sufficiently overwhelming to eliminate all reasonable doubt about whether the

verdict would have been different if the statements were excluded,"

particularly since "[t]he statements at issue provided additional and persuasive

evidence of guilt." Brabham, 413 N.J. Super. at 211-12. Accordingly, we

conclude that defendant's conviction for the disorderly persons resisting arrest

offense must be reversed and the case remanded for a new trial.

      As to defendant's conviction for unlawful possession of the BB gun, we

accept defendant's representation that the judge's incorrect Miranda ruling led

directly to him later entering a negotiated guilty plea. Accordingly, we vacate

the guilty plea, and remand for further proceedings.       However, we reject

defendant's contention that suppression of the BB gun is mandated as a remedy

for the Miranda violation. As the Court held in Patane,

            the Miranda rule is a prophylactic employed to protect
            against violations of the Self-Incrimination Clause.
            The Self-Incrimination Clause, however, is not
            implicated by the admission into evidence of the
            physical fruit of a voluntary statement. Accordingly,
            there is no justification for extending the Miranda rule
            to this context. And just as the Self-Incrimination
            Clause primarily focuses on the criminal trial, so too

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                                      14
            does the Miranda rule. The Miranda rule is not a code
            of police conduct, and police do not violate the
            Constitution (or even the Miranda rule, for that
            matter) by mere failures to warn. For this reason, the
            exclusionary rule . . . does not apply.

            [Id. at 636-37.]

      Reversed and remanded for further proceedings in conformity with this

decision. We do not retain jurisdiction.




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