                                NOT FOR PUBLICATION WITHOUT THE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-0411-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN R. QUACKENBUSH,
a/k/a JOHN A. QUACKENBUSH,

     Defendant-Appellant.
______________________________

                    Argued February 14, 2019 – Decided July 29, 2019

                    Before Judges Simonelli, O'Connor and Whipple.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 13-08-0676.

                    James K. Smith, Jr., Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; James K. Smith, Jr., of
                    counsel and on the briefs).

                    Milton Samuel Leibowitz, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Michael A. Monahan, Acting Union
                    County Prosecutor, attorney; Milton Samuel Leibowitz,
                    of counsel and on the brief).
PER CURIAM

      Following a jury trial, defendant John R. Quackenbush was convicted of

first-degree murder of his mother, N.J.S.A. 2C:11-3(a)(1) and (2); third-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree

theft by unlawful taking, N.J.S.A. 2C:20-3. The trial court imposed a forty-year

term of imprisonment with an eighty-five percent period of parole ineligibility

pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

      On appeal, defendant raises the following contentions:

      POINT I

            HAVING DETERMINED THAT A DETECTIVE'S
            [ASSURANCE] THAT DEFENDANT COULD
            "ABSOLUTELY" SPEAK OFF THE RECORD
            PREVENTED HIM FROM KNOWINGLY AND
            INTELLIGENTLY WAIVING HIS RIGHTS, THE
            JUDGE ALSO SHOULD HAVE SUPPRESSED A
            BRIEF ORAL STATEMENT MADE ONLY
            MINUTES AFTER THAT MISREPRESENTATION.

            A.    The Defendant's Statements.

            B.    The Judge's Findings.

            C.    The Defendant's Oral Statement Was Not The
                  Product Of A Knowing And Intelligent Waiver
                  Of His Rights.



                                                                        A-0411-16T2
                                       2
      POINT II

            THE DEFENDANT WAS DENIED A FAIR TRIAL
            BY THE COURT'S REFUSAL TO PROPERLY
            REDACT HIS TAPED STATEMENT TO EXCLUDE
            THE DETECTIVES' REPEATED ASSERTIONS
            THAT HE WAS LYING AND THAT HIS VERSION
            OF THE EVENTS WAS "BULLSHIT."

            A.    The Refusal To Fully Redact Defendant's
                  Statement.

            B.    The Detectives' Opinion That Defendant Was
                  Lying Was Clearly Inadmissible, And Should
                  Have Been Redacted.

We reject these contentions and affirm.

                                      I.

      Defendant lived with his mother, Gail Vandewalle. Vandewalle worked

at an Ethan Allen furniture store, where she was known for rarely missing work,

often arriving early and staying late. On February 20, 2013, Vandewalle did not

arrive at work as scheduled and did not call the store to advise she would be

absent. The store manager, Jacqueline Braithwaite West, called Vandewalle,

but Vandewalle did not answer. Later that day, defendant called the store and

told West "[h]is mom is well, she's a wonderful person. She's a strong person.

That's my mom. I love her. She's a great woman." In addition to missing work,

Vandewalle missed a dinner she had tentatively planned with Lisa Piedade.


                                                                       A-0411-16T2
                                      3
Piedade had called Vandewalle earlier in the day to confirm their plans, but

Vandewalle did not answer her cellphone and did not return Piedade's call.

      Vandewalle was not scheduled to work again until February 23, 2013, but

she often went to the store on her days off. She did not go to the store on

February 21 and 22, did not report to work on February 23, and did not call the

store to advise she would be absent. At 10:39 a.m., on February 23, defendant

called the store and told the receptionist that Vandewalle's cellphone was broken

"and a neighbor was taking her to get a new one and then she was going to Bank

of America." Defendant also told the receptionist that Vandewalle would arrive

at work after leaving Bank of America, but Vandewalle never arrived.

      By February 24, 2013, Vandewalle's co-workers had become anxious

about her whereabouts. One of Vandewalle's co-workers and friend, Manish

Mistry, sent an email to defendant's brother, Joseph Quackenbush (Joseph),

expressing concern about Vandewalle. Joseph responded and told Mistry he had

spoken to defendant, who told him their mother was "okay" and was getting a

new cellphone. Mistry also called defendant, but defendant did not respond.

Mistry then sent defendant a text message asking him to respond, adding, "your

mom hasn't been to work in a couple of days. People are worried."




                                                                         A-0411-16T2
                                       4
      That same day, West called defendant's other brother, James Quackenbush

(James), and the Plainfield Police Department (PDP) to express her concern

about Vandewalle. At approximately 1:25 p.m., Police Officer Andre Crawford

was dispatched to Vandewalle's home to try to locate her. Crawford knocked

on the door when he arrived, but no one answered. He then walked around the

house and entered through the rear door. Upon entering the house, Crawford

noticed that the living room was "really dark," there was garbage in the house,

and the house smelled like garbage. Crawford did not look behind the couch

and did not notice anything suspicious, so he closed the back door and left .

      At 2:01 p.m., after defendant spoke to Joseph, defendant sent him a text

message saying he was about to take his lunch break and would be calling

Mistry. Defendant also sent James a text message asking James to call him, but

he did not answer when James called. Later that afternoon, at 3:58, defendant

called Joseph and told him he was going home to check on their mother.

      At approximately 5:00 p.m., after speaking to West and attempting to call

both defendant and Vandewalle without success, James called the PDP and

asked them to check on his mother's house. Officer Jihad Carter arrived at the

house at approximately 6:02 p.m. with two other officers, who announced their

presence and entered through the rear door. Carter noticed that the house was


                                                                          A-0411-16T2
                                        5
filled with trash, garbage and debris and there was an odor. He went into the

living room, which he noted was "very dark," and looked behind the couch,

where he found some pillows and blankets. Carter moved one of the blankets

and saw a woman's high heel shoe under it. He tried to move the shoe, causing

the whole pile to move. Carter then moved to the other side of the couch and

began moving the pillows. Upon moving the pillows, he saw a body, which was

later identified as Vandewalle.

      At approximately 6:30 p.m., Detective Edward Suter arrived at the house

to photograph the scene and look for evidence. 1 He found a pair of black boots

in defendant's room, which appeared to have "very small suspected blood stains"

on them. The boots were later tested by a forensic scientist for the Union County

Prosecutor's Office (UCPO), who testified that two spots on the right boot tested

positive for blood, while all the spots on the left boot tested negative. A DNA



1
    Suter testified about the photographs he took, noting that blood in
Vandewalle's head wound was dried and coagulated; a throw rug in the living
room covered a large saturation stain of blood on an area rug, which had soaked
through onto the wooden floor; and there was a "suspected blood trail" from the
saturation stain to the area behind the couch where Vandewalle's body was
found. There also was blood spatter on the base of the stairway and bannister
and in the second floor bathroom, but there was no blood on the steps leading
upstairs or in the basement, kitchen or dining room.



                                                                         A-0411-16T2
                                       6
analysis confirmed the blood spots on the right boot matched Vandewalle's

DNA.

       Later that evening, the police went to a motel where defendant was staying

with his girlfriend. 2 Although defendant was a person of interest in his mother's

murder, the police arrested him for an outstanding warrant on a motor vehicle

offense. The police found Vandewalle's cellphone and car keys in the motel

room. In addition, defendant had used his mother's bankcard to make purchases

in the days prior to his arrest.

       At the police station, defendant was taken to the Detective Bureau and

placed in Interview Room One, where he was left alone for approximately thirty-

five to forty minutes. Defendant was then placed in Interview Room Two for a

videotaped interrogation with Detective Thomas Robertson from the PDP and

Detective Johnny Ho from the UCPO. Defendant received and waived his

Miranda3 rights.     During the interrogation, the detectives asked defendant

questions about his mother and advised defendant that they had already spoken

to his brothers, Vandewalle's friends and co-workers, and defendant's girlfriend,


2
   During the time Vandewalle was missing, defendant made it appear to his
girlfriend that his mother was alive.
3
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                                                          A-0411-16T2
                                        7
and knew defendant was lying to them and his version of events was "bullshit."

Robertson also advised defendant, "This is your only opportunity, okay. . . . This

is the only time you're gonna get to tell your side of the story."

      Defendant denied murdering his mother and said he did not want to talk

any further without an attorney. The detectives stopped the interrogation and,

as they got up to exit the room, defendant asked if he could talk to them off the

record. Robertson replied, "Yeah, absolutely. Absolutely. But you're only

going to have one opportunity to speak to us." The detectives then exited the

interview room and placed defendant back into Interview Room One. They

spoke to Assistant Prosecutor Scott Peterson and Sergeant Harvey Barnwell of

the UCPO for several minutes outside Interview Room One. Barnwell told

Robertson they could not have an off the record discussion with defendant.

Robertson then asked if they could take defendant downstairs to the booking

area to be processed.

      Robertson reentered Interview Room One and escorted defendant out to

take him downstairs to the booking area. Robertson and defendant did not speak

to each other as they walked to the stairwell. When they reached the stairwell,

defendant asked Robertson if he could speak to him, but Robertson replied that

defendant "had that chance." Defendant's face turned "beet red," he covered his


                                                                          A-0411-16T2
                                         8
face, began to cry and said "I did it" (the "I did it" statement). Robertson

returned defendant to Interview Room One and discussed what happened with

Peterson and Barnwell. Defendant was ultimately charged with his mother's

murder.

      Sometime after defendant's arrest, James, Piedade and Anna Harris went

to Vandewalle's house to begin cleaning it out. While going through a closet

near the living room, Piedade found a dumbbell, which appeared to have blood

and hair on it, and noticed "a little puddle of blood" on the shelf next to the

dumbbell. The weights on one end of the dumbbell had been removed and the

handle was wrapped in black electrical or duct tape. James, Piedade and Harris

did not touch the dumbbell and immediately called the UCPO, which sent a

Crime Scene officer to photograph and recover the item. The dumbbell was

found to have blood on it that matched Vandewalle's DNA.

      Dr. Beverly Leffers, a forensic pathologist from the Union County

Medical Examiner's Office, performed an autopsy on Vandewalle.         Leffers

testified that Vandewalle had between six and eight separate lacerations on the

back of her head, a fractured skull with displacement of some fragments of the

bone inwards, and some areas of hemorrhage within the membranes that

surround the brain. Leffers opined that Vandewalle's injuries were consistent


                                                                       A-0411-16T2
                                      9
with a number of blows to the back of her head, and the cause of death was blunt

impact injuries to the head.      She testified that the dumbbell found in

Vandewalle's home is a heavy blunt object that could have been used to make

the injuries Vandewalle sustained.

                                       II.

      Defendant moved to suppress the "I did it" statement. The motion judge

found the statement admissible because when defendant made it, the custodial

interrogation had ended and defendant voluntarily reinitiated the conversation.

The judge explained:

                    They are walking. They're gone. They have left.
            Now, the defendant is going to be booked, and
            processed, and fingerprinted. Everything that takes
            place in a [b]ooking [a]rea, whether or not [defendant]
            knew what was going to happen at [b]ooking doesn’t
            matter. He re-initiated the conversation. Robertson
            really says, you know what? You had your chance. As
            if to say, you know what? It's too late. Not that he used
            those words.

                  And that's why I find . . . that [defendant] is,
            basically, blurting out, I did it, is admissible.

      On appeal, defendant argues that although he reinitiated the conversation,

the judge was also required to determine whether the "I did it" statement was

the product of a knowing and intelligent waiver of defendant's Miranda rights.

Defendant further argues the "I did it" statement was not made knowingly or

                                                                        A-0411-16T2
                                      10
intelligently because the detectives misled him to believe he could help himself

by giving a statement and could speak "off the record with impunity."

      Our review of a trial court's decision on a motion to suppress is limited.

State v. Robinson, 200 N.J. 1, 15 (2009). As our Supreme Court has held:

            Appellate review of a motion judge's factual findings in
            a suppression hearing is highly deferential. We are
            obliged to uphold the motion judge's factual findings so
            long as sufficient credible evidence in the record
            supports those findings. Those factual findings are
            entitled to deference because the motion judge, unlike
            an appellate court, has the "opportunity to hear and see
            the witnesses and to have the 'feel' of the case, which a
            reviewing court cannot enjoy."

            [State v. Gonzales, 227 N.J. 77, 101 (2016) (citations
            omitted) (quoting State v. Johnson, 42 N.J. 146, 161
            (1964)).]

We will "reverse only when the trial court's determination is 'so clearly mistaken

that the interests of justice demand intervention and correction. '"     State v.

Gamble, 218 N.J. 412, 425 (2014) (quoting State v. Elders, 192 N.J. 224, 244

(2007)). However, we owe no deference to the trial court's legal conclusions or

interpretations of the legal consequences flowing from established facts, and

review questions of law de novo. State v. Watts, 223 N.J. 503, 516 (2015).

Applying the above standards, we discern no reason to reverse.




                                                                          A-0411-16T2
                                       11
      It is elementary that a confession obtained during a custodial interrogation

may not be admissible unless law enforcement first informed the defendant of

his or her constitutional rights. State v. Hreha, 217 N.J. 368, 382 (2014). Once

a defendant has been advised of his Miranda rights, he may waive those rights

and confess; however, "that waiver must be 'voluntary, knowing, and

intelligent.'" Ibid. (quoting Miranda, 384 U.S. at 444). If a defendant invokes

his constitutional rights, the request "must be 'scrupulously honored.'" State v.

Chew, 150 N.J. 30, 61 (1997) (quoting Michigan v. Mosley, 423 U.S. 96, 103

(1975)).

      Once the defendant invokes his rights, the interrogation must cease and

"[o]nly if the suspect [then] makes clear that he is not invoking his Miranda

rights should substantive questioning be resumed." State v. Bohuk, 269 N.J.

Super. 581, 592-93 (App. Div. 1994) (second alteration in original) (quoting

State v. Wright, 97 N.J. 113, 120 n.4 (1984)). An "interrogation can resume

only if the police administer a fresh set of Miranda warnings." State v. Harvey,

151 N.J. 117, 221 (1997). "That rule, however, does not apply if the defendant

initiates a dialogue about the crime." Id. at 222. If the defendant initiates further

conversation "after invoking his right to remain silent, the resumption of police

questioning will not constitute a failure to scrupulously honor that right." State


                                                                             A-0411-16T2
                                        12
v. Mallon, 288 N.J. Super. 139, 147 (App. Div. 1996). However, the State

nevertheless "bears a 'heavy burden' of demonstrating that the waiver was

knowing, intelligent, and voluntary." Chew, 150 N.J. at 61 (quoting State v.

Hartley, 103 N.J. 252, 260 (1986)).

      Although the State bears the burden of establishing that a defendant's

waiver of his constitutional rights was knowing, intelligent and voluntary,

"Miranda's protection extends only to acts of police officers 'reasonably

calculated to elicit an incriminating response.'" Bohuk, 269 N.J. Super. at 594

(quoting State v. Lozada, 257 N.J. Super. 260, 268 (App. Div. 1992)). "To fall

afoul of that rule, the defendant's statement must have been the product of police

questioning or its functional equivalent."       Ibid.   Moreover, "the special

procedural safeguards outlined in Miranda are required not where a suspect is

simply taken into custody, but rather where [he] [is] in custody [and] is subjected

to interrogation." Ibid. (alterations in original) (quoting Rhode Island v. Innis,

446 U.S. 291, 300 (1980)). Thus, in order to determine whether the judge in

this case was required to consider whether the "I did it" statement was a

knowing, intelligent, and voluntary waiver of the defendant's rights, we must

first determine whether defendant's statement was the product of an

interrogation.


                                                                           A-0411-16T2
                                       13
      "[T]he term 'interrogation' under Miranda refers to express questioning

and any words or actions by the police that they 'should know are reasonably

likely to elicit an incriminating response from the suspect.'" Ibid. (quoting

Rhode Island, 446 U.S. at 301). "As conceptualized in Miranda, interrogation

'must reflect a measure of compulsion above and beyond that inherent in custody

itself.'" Ibid. (quoting Rhode Island, 446 U.S. at 300). Thus, a "statement that

is voluntarily blurted out by an accused in custody where the police have not

subjected him to an interrogative technique" is deemed voluntary and is

admissible without Miranda warnings. State v. Ward, 240 N.J. Super. 412, 419

(App. Div. 1990).

      Here, the judge found the "I did it" statement admissible because it

occurred after the interrogation had ended and defendant reinitiated the

conversation. Thus, the judge found the statement was "a voluntary re-initiation

blurt out" and was therefore admissible. This determination was reasonable, as

illustrated in State v. Beckler, 366 N.J. Super. 16 (App. Div. 2004), and

demonstrated by the facts leading up the statement.

      In Beckler, the police arrested the defendant and transported him to the

police station, where he was advised of and waived his Miranda rights. 366 N.J.

Super. at 22. During the interrogation, the officers stopped the questioning and


                                                                        A-0411-16T2
                                      14
one of them took the defendant to another part of the police station to process

the arrest. Id. at 23. According to the officer, "as they walked along, defendant

'just started talking' spontaneously to him" and made several incriminating

statements. Ibid. We found the statements made while the defendant was being

transported to the booking area admissible because "there was substantial

credible evidence establishing that the post-cessation statements, although made

while defendant was in custody, were unsolicited, spontaneous, and not made in

response to 'questioning or its functional equivalent.'" Id. at 25 (quoting Ward,

240 N.J. Super. at 418). Thus, we rejected the defendant's claim that the

statements were not voluntarily, knowingly, and intelligently made, on the basis

that the statements were not made in the context of an interrogation and therefore

did not violate Miranda. Id. at 26.

      Here, defendant had initially waived his Miranda rights, but subsequently

invoked them. The detectives stopped the interrogation, placed defendant in a

different interview room and, after a several minutes, Robertson returned to the

room and began escorting defendant to the booking area for processing. During

the transport, without any prompting by Robertson's words or actions, defendant

reinitiated the conversation by asking Robertson if he could speak with him, to

which Robertson replied that defendant "had that chance," thereby indicating


                                                                          A-0411-16T2
                                       15
Robertson would not engage in further discussion with defendant. Defendant's

face then turned "beet red," and he covered his face, began to cry, and blurted

out "I did it." Thus, as in Beckler, the "I did it" statement was "unsolicited,

spontaneous, and not made in response to 'questioning or its functional

equivalent.'" Id. at 25 (quoting Ward, 240 N.J. Super. at 418). "Voluntary

statements—those not elicited through interrogation—made by a suspect while

in custody are admissible at trial." Bohuk, 269 N.J. Super. at 594. Because the

"I did it" statement was not elicited through interrogation, the Miranda

safeguards did not apply and the judge was not required to determine whether

the statement was the result of a knowing, intelligent, and voluntary waiver of

those rights.4 See ibid. ("the special procedural safeguards outlined in Miranda"

are only required when a suspect is in custody and is subjected to interrogation).

      Although the "I did it" statement was not made during an interrogation

and therefore is not subject to Miranda protections, the admissibility of the

statement should nevertheless "be evaluated under a voluntariness standard



4
   Although defendant cites to a number of cases that address the requirement
that a waiver of Miranda rights be "knowing, intelligent, and voluntary," such
an inquiry arises only where the defendant was subject to interrogation and those
rights have been implicated. See State v. Fuller, 118 N.J. 75, 87 (1990). Here,
since the "I did it" statement was not made during an interrogation, such an
inquiry is unnecessary.
                                                                          A-0411-16T2
                                       16
judged by the totality of the circumstances." See State v. Pillar, 359 N.J. Super.

249, 267 (App. Div. 2003). In determining the voluntariness of a statement,

courts look to the totality of the surrounding circumstances and consider various

relevant factors, including "the suspect's age, education and intelligence, advice

concerning constitutional rights, length of detention, whether the questioning

was repeated and prolonged in nature, and whether physical punishment and

mental exhaustion were involved." State v. Galloway, 133 N.J. 631, 654 (1993).

      Defendant argues the "I did it" statement was not knowing or voluntary

because the detectives misled him into believing he could help himself by giving

a statement. In support of this argument, defendant relies on State ex rel. A.S.,

203 N.J. 131 (2010) and State v. Puryear, 441 N.J. Super. 280 (App. Div. 2015).

However, both of these cases are distinguishable from this case. In A.S., our

Supreme Court found that a detective's statement to the defendant advising that

answering his questions would benefit rendered her resulting statement

inadmissible because the detective's representation contradicted the Miranda

warning "that anything she said in the interview could be used against her in a

court of law." 203 N.J. at 151.

      Similarly, in Puryear, the interrogating officer told defendant "[t]he only

thing you can possibly do here is help yourself out. You cannot get yourself in


                                                                          A-0411-16T2
                                       17
any more trouble than you're already in. You can only help yourself out here."

441 N.J. Super. at 288. We found the defendant's ensuing statement inadmissible

because the detective's representation had neutralized the Miranda warning and

the defendant therefore did not knowingly, intelligently, and voluntarily waive

his Miranda rights. Id. at 298-99.

      Both A.S. and Puryear held the defendants' statements inadmissible

because the interrogating officers had contradicted the Miranda warnings and

misled the defendants into believing their statements would help them and would

not be used against them. Ibid.; A.S., 203 N.J. at 151. Defendant alleges the

same principle applies here because during his videotaped interrogation,

Robertson told defendant, "this is the only time you will have the opportunity to

help yourself and talk to me."        However, our review of the videotaped

interrogation confirms the detectives did not, at any time, indicate that defendant

could help himself if he provided them with a statement. 5 Rather, Robertson

merely told defendant, "[t]his is the only time you're gonna get to tell your side

of the story" and "this is the opportunity that we're providing you right now to



5
  The language defendant relies on and emphasizes in his brief was a statement
Robertson made on cross-examination during the hearing on defendant's motion
to suppress and did not reflect what Robertson actually said during the
videotaped interrogation.
                                                                           A-0411-16T2
                                       18
tell us your side of the story." These statements are not analogous to those made

by the detectives in A.S. and Puryear, and they did not contradict defendant's

Miranda warnings.

      Defendant also argues the "I did it" statement was not knowing or

voluntary because Robertson misled him by telling him he could speak off the

record. The State concedes this was improper, but counters that Robertson's

statement had no bearing on the "I did it" statement because the statement was

made in the hallway after defendant knew the interrogation was over.

      In support of his argument, defendant relies on Pillar and State v. Fletcher,

380 N.J. Super. 80 (App. Div. 2005). In Pillar, the defendant asked to speak to

the interrogating officers "off-the-record" after being advised of and asserting

his Miranda rights. 359 N.J. Super. at 262. The detectives agreed to listen to

an off the record statement, and the defendant immediately admitted to the crime

charged. Ibid. We found the defendant's statement was inadmissible, explaining

that "[a]n acquiescence to hear an 'off-the-record' statement from a suspect,

which the officer ought to know cannot be 'off-the-record,' totally undermines

and eviscerates the Miranda warnings, at least with respect to a statement made

. . . in immediate and direct response to the misleading assurance." Id. at 268.

We therefore held the detective's agreement to speak off the record rendered the


                                                                           A-0411-16T2
                                       19
resulting statement inadmissible because "such a misrepresentation directly

contradicts and . . . neutralizes the entire purpose of the Miranda warnings[,]"

and "may . . . render the statement involuntary." Id. at 265.

      However, we also noted that "a misrepresentation by police does not

render a confession or waiver involuntary unless the misrepresentation actually

induced the confession." Id. at 269 (emphasis added) (quoting State v. Cooper,

151 N.J. 326, 355 (1997)).      Thus, although the defendant's statement was

inadmissible because it was made "in direct and immediate response to [the

detective's] knowingly incorrect representation that he could speak 'off-the-

record[,]'" we also noted: "[w]e do not hold that an off-the-record assurance

continues indefinitely to render a statement made in response thereto

involuntary. A statement made at a substantially later point in time might well

be found voluntary notwithstanding the earlier false assurance." Id. at 275.

      In Fletcher, the defendant indicated to the interrogating officer that he was

willing to talk to him, "but only if it was strictly 'off-the-record.'" 380 N.J.

Super. at 88. The detective then promised the defendant that if he gave a

statement "it will help you. It is good for you to cooperate," and "he repeated

that what defendant said would be 'off-the-record.'" Ibid. We found the officer's

offer to speak to defendant off the record "directly contradicted" the Miranda


                                                                           A-0411-16T2
                                       20
warnings and induced the defendant's statement, rendering the statement

inadmissible. Id. at 93.

      In this case, it is undisputed that after defendant invoked his Miranda

rights he asked the detectives if he could speak to them off the record and

Robertson responded "Yeah, absolutely. Absolutely. But you're only going to

have one opportunity to speak with us." Although this statement was improper,

the record does not establish that Robertson's response induced defendant to

make the "I did it" statement. Unlike in Pillar and Fletcher, the "I did it"

statement did not immediately follow Robertson's statement that defendant

could speak off the record.

      Furthermore, there is no indication that the "I did it" statement was made

"in specific and immediate response to the officer's assurance that defendant

could speak off-the-record." See Pillar, 359 N.J. Super. at 272. On the contrary,

the judge found that although Robertson's statement was improper, "[defendant],

from the totality of the circumstances, had to know [the interrogation] was over."

The judge explained:

                  I understand Robertson said we can have an off-
            the-record discussion but there was not discussion at
            that point. There was no conversation in any of the
            interview rooms after Robertson mistakenly tells
            [defendant] they could have an off-the-record
            discussion, and it was a mistake for Robertson to say so

                                                                          A-0411-16T2
                                       21
            . . . but there's just no reasonable conclusion that
            [defendant] could have reached that that constituted an
            okay, acceptable off-the-record discussion when the
            two are not even sitting together.

Thus, the judge determined that defendant could not have reasonably believed

the "I did it" statement would not be used against him and Robertson's statement

did not strip defendant of his "capacity for self-determination." See id. at 272-

73. As we stated in Pillar:

            Although police misrepresentations are relevant in
            analyzing the totality of the circumstances surrounding
            a claim that a confession was involuntary, such
            "misrepresentations alone are usually insufficient to
            justify a determination of involuntariness or lack of
            knowledge." "Moreover, a misrepresentation by police
            does not render a confession . . . involuntary unless the
            misrepresentation actually induced the confession."

            [Id. at 269 (citations omitted) (quoting State v. Cooper,
            151 N.J. 326, 355 (1997)).]

      There is no indication that Robertson's misrepresentation that defendant

could speak with him off the record induced the "I did it" statement. At the time

defendant made it, he was being transported to another area of the police

department, was no longer in the interrogation room, and there had been no

conversation between him and Robertson. Several minutes had passed between

Robertson's statement and the "I did it" statement and, when asked if he could

speak with Robertson before he made the statement, Robertson told him "he had

                                                                         A-0411-16T2
                                      22
his chance," indicating defendant could not speak to him further.          For the

foregoing reasons, we are satisfied the judge did not err in finding the "I did it"

statement was voluntary and admissible.

      Even if the judge erred, the error was harmless because the case was not

contingent upon the "I did it" statement and there was overwhelming

circumstantial evidence of defendant's guilt presented throughout the course of

the trial.   Testimony revealed that defendant had lied to his brothers, his

girlfriend, and Vandewalle's co-workers and friends about Vandewalle's

whereabouts during the week she was missing. Defendant's girlfriend testified

that although she had been at Vandewalle's home every night from February 18,

2013 through February 24, 2013, she did not see Vandewalle and did not hear

her moving around the house during that time period. Defendant's girlfriend

found this unusual because she always heard Vandewalle as she moved about

the house. She also testified she could hear Vandewalle's radio playing in her

room at night and defendant would knock on Vandewalle's door and appear to

speak to her; however, she could not hear Vandewalle's responses, which she

often heard in the past when defendant would speak to his mother through her

bedroom door.




                                                                           A-0411-16T2
                                       23
      Evidence was also presented at trial that throughout the week in question,

defendant used his mother's bankcard to pay for various expenses and drove her

car several times. Moreover, when defendant was arrested, he was found in

possession of Vandewalle's cellphone and car keys. Finally, an analysis of a

pair of defendant's boots revealed drops of Vandewalle's blood. This evidence,

which was presented at trial, surely could have led a jury to convict defendant

even without admission of the "I did it" statement. Thus, any error in f ailing to

exclude the "I did it" statement was harmless and does not warrant reversal.

                                       III.

      Defendant argues he was denied a fair trial because of the judge's refusal

to redact his videotaped interrogation to exclude the detectives' comments that

defendant was lying and his answers were "bullshit." Defendant posits the judge

should have redacted those statements because they would have been

inadmissible if made by the detectives while testifying at trial and did not

become admissible just because they were made in the course of an

interrogation.

      "[I]n reviewing a trial court's evidential ruling, an appellate court is

limited to examining the decision for abuse of discretion." State v. Kuropchak,

221 N.J. 368, 385 (2015) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)).


                                                                          A-0411-16T2
                                       24
Under that standard, "[c]onsiderable latitude is afforded a trial court in

determining whether to admit evidence," and "an appellate court should not

substitute its own judgment for that of the trial court, unless 'the trial court's

ruling "was so wide of the mark that a manifest denial of justice resulted."'" Id.

at 385-86 (alteration in original) (quoting State v. Feaster, 156 N.J. 1, 82 (1998);

State v. Marrero, 148 N.J. 469, 484 (1997)). We discern no abuse of discretion

here.

        Interrogation techniques used by an officer "to dissipate [a suspect's]

reluctance and persuade the person to talk are proper as long as the will of the

suspect is not overborne." State v. Miller, 76 N.J. 392, 403 (1978); see also

Galloway, 133 N.J. at 655 ("The fact that the police lie to a suspect does not, by

itself, render a confession involuntary."). Thus, "New Jersey courts . . . have

permitted the use of trickery in interrogations." 6 State v. Patton, 362 N.J. Super.

16, 31 (App. Div. 2003). However, the issue is not whether the detectives'

interrogation techniques were proper, but whether those portions of the




6
  Defendant concedes the police are allowed to misrepresent facts and express
their opinion that the suspect is not telling the truth in order to induce the suspect
to incriminate himself during an interrogation.


                                                                              A-0411-16T2
                                         25
interrogation during which they accuse defendant of lying should have been

redacted.

      The judge redacted a number of statements made during the interrogation,

including references to defendant being unemployed, being a financial burden

on his mother, and not having a driver's license, as well as any references to the

defendant's outstanding warrant.      The judge also redacted portions of the

interrogation where the detectives accused defendant of lying to his mother or

stated that others told them he was "a liar." The judge did not redact the

detectives' statements that accused defendant of lying, including when they

responded to defendant by saying, "you're lying," "all the lies," and "it's such

bullshit." With regard to the last comment, the judge explained:

            I'm going to leave it in because it's in context with the
            interrogation and that's what it is. It's not as if the jury
            is going to say okay, Detective Ho thought it was a lie
            so we will, too. It's the back and forth between the
            parties. I'm going to allow it in. "All the lies" is
            repeated on that same page by the detective to which
            [defendant] basically says no, I'm not lying – and . . . I
            think it's fair and reasonable to leave it in. It adds
            context to the interrogation, to the transcript and the
            interview[.]

            [(Emphasis added).]




                                                                           A-0411-16T2
                                       26
As for the other comments, the judge reiterated "I think it puts the back and

forth, the confrontation, the conversation, if you will, between the detective and

[defendant] in context." The judge further noted:

            there's evidence in the case from which a jury could
            decide the defendant was lying to multiple people. . . .
            So that should stay in. It's part of the interrogation, the
            confrontation between the parties. And the jurors are
            going to be told – they've already been told. In fact, I
            gave the instructions about credibility in the
            preliminary instructions with the questionnaire. Then
            they had them again after they're sworn. They'll have
            them again. If I made anything clear, they're the judges
            of the facts.

      Although the judge agreed the detectives would not be permitted to make

these statements or accusations if they were testifying at trial, she disagreed that

the same rule applied to statements in an interrogation, finding:

            The law says that detectives actually can lie to a
            defendant . . . . And we know being in this business for
            a while that detectives – when a defendant says hey, I
            didn't do it, they often say you're lying and words to
            that effect. I'm not saying that’s an opinion and it's so
            different. Interrogation is so different from what a
            witness can say in front of the jury. I think, again, the
            jury charge makes that clear. Certainly if you want me
            to add anything to the jury charge, I'll certainly consider
            anything you have to suggest.

It is clear from the judge's findings and explanation that she based her

determinations on an understanding that the detectives' comments were


                                                                            A-0411-16T2
                                        27
admissible as long as they provided context for the interrogation and were not

overly prejudicial. This view has been adopted by a number of jurisdictions,

which have noted that such comments are presented to describe the interrogation

and allow the jury to view the defendants' answers within the appropriate context

of the interrogation.

      For example, in State v. Boggs, 185 P.3d 111, 121 (Ariz. 2008), the

Supreme Court of Arizona found that a detective's repeated statements to the

defendant accusing him of lying during an interrogation were admissible

because the accusations "were part of an interrogation technique and were not

made for the purpose of giving opinion testimony at trial."             The court

nevertheless noted that "if [the defendant] had requested a limiting instruction,

one would have been appropriate[.]" Ibid.

      A North Carolina appellate court took a similar approach by rejecting the

defendant's claim that the trial court should have redacted portions of a transcript

in which a detective accused defendant of lying and giving an account of events

that was "bullshit." State v. Castaneda, 715 S.E.2d 290, 294 (N.C. Ct. App.

2011). The court found that because the detective's statements "were part of an

interrogation technique . . . and were not made for the purpose of expressing an




                                                                            A-0411-16T2
                                        28
opinion as to defendant's credibility or veracity at trial, the trial court properly

admitted the evidence." Id. at 295.

      These views have been echoed by a number of other courts, which found

such statements admissible and distinguished comments made during an

interrogation from testimony given at trial. See Butler v. State, 738 S.E.2d 74,

81 (Ga. 2013) (alteration in original) (quoting Roberts v. State, 723 S.E.2d 73,

75 (Ga. Ct. App. 2012)) (comments made by law enforcement during an

interrogation "and designed to elicit a response from a suspect do not amount to

opinion testimony, even when [testimony reflecting] the comments is admitted

at trial")7; Allen v. Commonwealth, 286 S.W.3d 221, 226 (Ky. 2009)

("[A]lthough it is generally improper for one witness to accuse another witness

of lying, it is not . . . inherently improper for a police officer questioning a

suspect . . . about holes or potential falsehoods in that suspect's theory of events

in an effort to get the suspect to tell the complete truth."); State v. O'Brien, 857

S.W.2d 212, 221 (Mo. 1993) (detective's testimony that accused defendant of

lying during the interrogation was admissible because the officer "was not



7
   Although Georgia courts recognize that a witness may not give opinion
testimony about the defendant's credibility at trial, they have found that an
interrogating officer is not offering opinion testimony during the course of the
interrogation. Dubose v. State, 755 S.E.2d 174, 183 (Ga. 2014).
                                                                            A-0411-16T2
                                        29
telling the jury that, in his opinion, the defendant is a liar. Rather, the witness

was describing the give-and-take of his interrogation"); Dubria v. Smith, 224

F.3d 995, 1001-02 (9th Cir. 2000) (detective's statements were admissible

because they "were questions in a pre-trial interview that gave context to

Dubria's answers"); State v. Demery, 30 P.3d 1278, 1284 (Wash. 2001) (officer's

statement made during a taped interview "merely provided the necessary context

that enabled the jury to assess the reasonableness of the defendant's responses").

      Many jurisdictions have taken a contrary approach, finding that a jury

should be prohibited from hearing such statements, even if the statements are

made in light of an effective and permissible police interrogation tactic. See

State v. Elnicki, 105 P.3d 1222, 1229 (Kan. 2005) (detective's comments that

defendant was lying and was "bullshitting" him were prohibited "even if the

statements are recommended and effective police interrogation tactics"); Wilkes

v. State, 917 N.E.2d 675, 686 (Ind. 2009) (a statement made by a detective

during an interrogation that implicitly or explicitly conveyed his opinion

concerning the defendant's guilt should have been excluded); Commonwealth v.

Kitchen, 730 A.2d 513, 521 (Pa. 1999) (an officer's statements to defendant

accusing him of lying "were akin to a prosecutor offering his or her opinion of




                                                                           A-0411-16T2
                                       30
the truth or falsity of the evidence presented by a criminal defendant, and such

opinions are inadmissible at trial").

         Although the treatment of this issue by other jurisdictions is mixed, it is

clear that the differing views are rooted in a determination of whether an

officer's statements made during an interrogation should be regarded as opinion

testimony. Defendant argues the detectives' statements constituted opinions

about the defendant's guilt, whereas the State argues the comments were offered

for their effect on defendant and not for their truthfulness, and they were not

made for the purpose of expressing an opinion as to defendant's credibility at

trial.

         Although there are no published New Jersey cases to guide our analysis,

we addressed a similar issue in State v. Graham, No. A-1111-10 (App. Div. May

16, 2013).8      In Graham, the defendant argued that the trial court erred in

admitting portions of the defendant's interview in which the interrogating

officers accused him of lying. Id. at 26. In evaluating the defendant's claim, we

acknowledged that police officers may not give testimony suggesting that others



8
   Although an unpublished opinion does not constitute precedent or bind the
court, the facts and analysis in this case shed light on the issues before us. See
Trinity Cemetery Ass'n, Inc. v. Twp. of Wall, 170 N.J. 39, 48 (2001); R. 1:36-
3.
                                                                            A-0411-16T2
                                         31
have implicated the defendant in a crime and may not state their opinion

regarding the veracity of defendant's statements or his guilt. Id. at 27. However,

we noted that statements made by officers interrogating a defendant are

admissible "for the limited purposes of providing context for the defendant's

responses relevant to the voluntariness of defendant's statement." Id. at 28.

Thus, we held:

            Where a defendant raises a valid objection based on
            inclusion of otherwise inadmissible evidence in the
            video recording of an interrogation, the court should
            consider whether redaction is necessary or a limiting
            instruction directing the jury on permissible and
            impermissible uses of the testimony will suffice to
            prevent misuse of the evidence.

            [Id. at 27.]

We applied these standards and found the detectives' statements were

admissible, provided the judge gives the jury a proper limiting instruction,

directing the jurors on how they may or may not use the evidence presented.

Ibid. There, the judge had given a detailed limiting instruction regarding the

use of interrogation tactics and instructing the jury that they should not use the

statements made by the detectives in light of those tactics "for the truth of the

matter asserted." Id. at 29.




                                                                          A-0411-16T2
                                       32
      In light of the similar views of other jurisdictions, and our own

conclusions in Graham, we conclude the judge did not err in failing to redact the

detectives' comments. As reflected above, the judge's view mirrored, to an

extent, the view adopted by the courts of Arizona, North Carolina, Georgia,

Kentucky, Missouri, and others, finding the detectives' comments during the

interrogation were not akin to a detective's testimony at trial. Although the judge

acknowledged the comments would not have been admissible if presented as

trial testimony, the judge distinguished such testimony from statements during

a videotaped interrogation, which detectives are permitted to make and which

"add context to the interrogation." In light of the fact several other jurisdictions

have adopted a similar analysis of the issue, we are satisfied the judge's findings

did not constitute an abuse of discretion.

      Further, at the conclusion of trial, the judge gave the jury extensive

instructions regarding the function of the court and the role of the jury. The

judge advised the jury it was the judge of the facts and it had the responsibility

"to determine the credibility of the various witnesses as well as the weight to be

attached to their testimony."      The judge added and later re-emphasized

throughout the jury charge, "You [the jury] and you alone are the sole and




                                                                            A-0411-16T2
                                        33
exclusive judges of the evidence, of the credibility of the witnesses and the

weight to be attached to the testimony of each witness."

      The judge instructed the jury that, although it had heard a number of oral

statements allegedly made by defendant, it was the jury's role to determine

whether or not the statements were made and whether they were credible. As to

the jury's determination of credibility, the judge noted "[i]n considering whether

or not the statements are credible, you should take into consideration the

circumstances and facts as to how the statements were made, as well as all other

evidence in this case relating to this issue." As to the defendant's videotaped

interrogation, the judge instructed the jury that:

              It's for you, the jury, to decide the credibility of the
              evidence presented. . . . It's your function to determine
              whether or not the statement was actually made by the
              defendant and, if made, whether the statement or any
              portion of it is credible. You may consider all of the
              circumstances surrounding the statement in making that
              determination with the following caution.

The judge also clarified that "the State's burden of proof never shifts to the

defendant."

      The judge made it exceedingly clear that the jury was responsible for

determining the credibility of any witnesses and that the State bore the burden

of proof. The potential prejudice to defendant resulting from the detectives'


                                                                          A-0411-16T2
                                        34
comments during the interrogation was significantly reduced if not eliminated

by the judge's instructions. Furthermore, there is nothing in the record that

suggests the jury relied on the detectives' comments or that the redaction of same

would have changed the outcome of the trial. It is important to note that the

videotaped interrogation was played to the jury on the last day of testimony,

after defendant's brothers and girlfriend, and Vandewalle's friends and co-

workers, had already testified about the lies defendant told them.

      Affirmed.




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                                       35
