                                                      SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                   State v. James P. Kucinski (A-58-15) (076798)

Argued October 26, 2016 -- Decided January 30, 2017

Solomon, J., writing for a unanimous Court.

           In this appeal, the Court considers whether cross-examination regarding facts to which defendant testified
at trial, but omitted in his statement to police, was proper.

          Defendant was arrested and taken to police headquarters for questioning about the bludgeoning death of his
brother, John. Defendant was advised of his Miranda rights and he requested an attorney. The officers stopped the
interrogation and met with their supervisor. After approximately eighty minutes they returned to the interview room
and advised defendant that he was going to be charged with murder. Defendant then asked if he could speak with
the officers, stating “I’m gonna tell you the truth.” He was re-read his Miranda rights, which he waived.

          Defendant explained that a few weeks earlier a fight had occurred between him and his brother. When the
officers attempted to redirect the discussion to “how it started today” -- the day of John’s death -- defendant
responded, “Ah, well let’s not talk about that part.” He then shifted the dialogue to other topics. In response to
inquiries about how John injured defendant, he stated, “Like I said, we’ll forget about that part.” Defendant
responded to a series of questions about events leading up to the fight and the injuries he sustained. As the
interrogation went on, defendant continued to turn to other topics and to evade answering questions directly.
Several times throughout the interrogation defendant answered questions with “I don’t know.” When asked how
defendant felt about John’s death, he said he would “rather [] just see a lawyer,” and the interrogation ended.

          Before trial, defendant moved to suppress his statement to police and argued that the officers did not honor
his invocation of the right to counsel. The court denied defendant’s suppression motion, and the case proceeded to
trial. At trial, the prosecutor asked one of the officers if defendant spoke in detail about the events on the day John
died and if defendant was given an opportunity to “explain what happened that day.” When defense counsel
objected, the trial judge sustained the objection but held that if defendant testified, the prosecutor would be
permitted to cross-examine him on inconsistencies between his trial testimony and statements to police.

          Defendant elected to testify at trial and claimed to have acted in self-defense. On cross-examination, over
defense counsel’s objection, the prosecutor was permitted to question defendant about details defendant had testified
to in his direct examination that contradicted what he said in his post-arrest statement to police. The prosecutor
focused on details that defendant testified to but failed to mention to police during his interrogation. After further
questioning by the prosecutor, defense counsel moved for a mistrial. The trial court denied the motion but instructed
the jury that defendant’s right to remain silent should be limited to assessing defendant’s credibility and may not be
used to make the determination of guilt. Defense counsel did not object.

          When the trial resumed, defense counsel informed the court that the limiting instruction advised the jury
that defendant’s silence could be used for impeachment purposes. Counsel requested a clarifying instruction to fix
this error, which the trial court issued. This instruction was repeated, without objection, during the final jury charge.
The jury found defendant guilty of passion/provocation manslaughter, as well as third-degree possession of a
weapon for an unlawful purpose.

          The Appellate Division reversed defendant’s conviction and remanded for a new trial, determining that the
prosecutor’s questions on cross-examination were improper. The panel found that defendant invoked his right to
remain silent by telling the police that he did not want to talk about certain subjects and answer certain questions.
The panel reasoned that, accordingly, the statements could not be used for any purpose, including impeachment.
Further, the Appellate Division found the trial court’s instructions to the jury were fatally flawed.

                                                           1
         The Court granted the State’s petition for certification. 224 N.J. 282 (2016).

HELD: Defendant waived his right to remain silent and therefore the State permissibly questioned defendant on cross-
examination about the inconsistencies between his post-arrest statement to police and his statement on direct-
examination at trial.

1. The United States Supreme Court first considered whether a defendant’s pretrial silence could be used to impeach
his credibility on cross-examination at trial in United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99
(1975). A year later, this Court considered a similar question in State v. Deatore, 70 N.J. 100, 108-09 (1976), and held
that a defendant who remains silent “at or near the time of his arrest” cannot be cross-examined about that silence if he
subsequently testifies to an exculpatory version of events at trial. In State v. Lyle, 73 N.J. 403 (1977), this Court again
incorporated U.S. Supreme Court authority and concluded that “the State’s use of a defendant’s post-arrest silence for
purposes of impeaching his exculpatory defense violates due process” and is “improper irrespective of whether
[Miranda] warnings are given.” Id. at 409-10 (citation omitted). The Court applied the general principles of Lyle and
Deatore in State v. Muhammad, 182 N.J. 551, 568 (2005), where the Court explained that “by speaking with the police,
a suspect does not waive his right to invoke the privilege and remain silent at some later point.” (pp. 20-23)

2. With respect to cross-examination of a defendant on factual inconsistencies between his testimony at trial and his
pretrial statement, the Court has held that “it is not an infringement of a defendant’s right to remain silent for the State
to point out differences in the defendant’s testimony at trial and his or her statements that were freely given.” State v.
Tucker, 190 N.J. 183, 189 (2007). (pp. 24-26)

3. When a defendant invokes his or her right to remain silent, the interrogation must cease, at least until some time has
lapsed and the defendant is reread his Miranda rights. That being said, even if a defendant is successful in invoking his
or her right to remain silent about a particular subject, this right is waived if the defendant discusses, of his or her own
volition, that very topic just moments later. (p. 27)

4. In the present case, defendant waived his right to remain silent. Defendant was cognizant of his Miranda rights and
clearly and unambiguously invoked his right to counsel when police originally administered Miranda warnings.
However, after first invoking his right to counsel, it was defendant who asked to speak with officers so that he could
“tell [them] the truth.” After acknowledging that he had fought with his brother, defendant avoided questions by saying
“[a]h, let’s not talk about that part,” “we’ll forget about that part,” “it doesn’t matter,” and “I don’t remember.”
Considered in context, defendant’s refusal to answer certain questions was not an attempt to end the dialogue, but rather
was “part of an ongoing stream of speech,” which included information about the altercation and defendant’s family
disputes. Most importantly, defendant voluntarily provided details about the altercation that led to John’s death—the
very subject about which he previously said, “let’s not talk about that part.” In other words, defendant told
investigators about his recollection of the altercation with John—he thus spoke on that subject. (pp. 27-29)

5. Because defendant waived his right to remain silent, cross-examination regarding facts to which he testified at trial,
but omitted in his statement to police, was proper. During interrogation, defendant claimed his injuries were caused by
John biting him. Defendant’s story changed during his testimony when he claimed John stabbed him with a
screwdriver and he was forced to defend himself. Therefore, the State’s cross-examination sought to highlight the
inconsistency between defendant’s statement to police during interrogation and his testimony on direct examination.
This inconsistency is a permissible area for cross-examination. (pp. 29-30)

6. Because defendant did not invoke his right to remain silent, any error in the trial court’s instruction to the jury, to
which defendant did not object, was harmless. (pp. 30-31)

         The judgment of the Appellate Division is REVERSED and defendant’s conviction is REINSTATED.

       CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion.




                                                            2
                                       SUPREME COURT OF NEW JERSEY
                                         A-58 September Term 2015
                                                  076798

STATE OF NEW JERSEY,

     Plaintiff-Appellant,

          v.

JAMES P. KUCINSKI,

     Defendant-Respondent.


          Argued October 26, 2016 – Decided January 30, 2017

          On certification to the Superior Court,
          Appellate Division.

          Nancy A. Hulett, Assistant Prosecutor,
          argued the cause for appellant (Andrew C.
          Carey, Middlesex County Prosecutor,
          attorney).

          Rochelle M.A. Watson, Assistant Deputy
          Public Defender, argued the cause for
          respondent (Joseph E. Krakora, Public
          Defender, attorney).

          Sarah E. Ross, Deputy Attorney General,
          argued the cause for amicus curiae Attorney
          General of New Jersey (Christopher S.
          Porrino, Attorney General, attorney).

     JUSTICE SOLOMON delivered the opinion of the Court.

     We are called upon to determine whether a defendant invoked

his right to remain silent after originally waiving his Miranda1

rights.   If so, we must also decide whether the State wrongly


1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
                                1
cross-examined defendant by highlighting missing details in his

post-arrest statement and whether the trial court’s curative

instructions were flawed and warrant reversal of defendant’s

conviction.

    Defendant was brought to the police station for questioning

about the bludgeoning death of his brother, John.    After

receiving Miranda warnings, defendant refused to speak with

police officers and was left alone for approximately eighty

minutes.   When the officers returned and told defendant that he

was going to be charged with John’s murder, defendant asked to

speak to the officers.   He was re-read the Miranda warnings and

waived his Miranda rights.   Questioning ensued.

    During defendant’s interrogation, he refused to answer

certain questions about his altercation with John.     Instead, he

pivoted the conversation to other topics.    Eventually, however,

defendant discussed details about the confrontation with, and

death of, his brother.   When asked how defendant felt about

John’s death, he said he would “rather [] just see a lawyer,”

and the interrogation ended.

    Defendant was indicted for John’s murder and unsuccessfully

moved to suppress his statement to police.   The matter proceeded

to trial, and defendant testified on his own behalf.     Over

defense counsel’s objection, the prosecutor was permitted to

cross-examine defendant about details of the incident he

                                2
testified to in his direct examination but omitted from his

post-arrest statement to police.

    The jury convicted defendant of passion/provocation

manslaughter, N.J.S.A. 2C:11-4(b)(2), and third-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(d).   The Appellate Division reversed defendant’s conviction

and remanded for a new trial.     The panel found that the

prosecutor’s cross-examination of defendant was improper and

violated defendant’s right against self-incrimination.       Further,

the panel held that the instructions given to the jury were

fatally flawed.    We granted the State’s petition for

certification.

    We hold that defendant waived his right to remain silent by

voluntarily discussing details of his altercation with John,

just moments after telling the officers that he did not wish to

comment on that particular subject.     Because defendant did not

assert his right to silence, the State permissibly questioned

defendant on cross-examination about the inconsistencies between

his statement during interrogation and his statement on direct-

examination.     In light of this holding, we find any error in the

trial court’s instructions to be harmless.     Therefore, we

reverse the judgment of the Appellate Division and reinstate

defendant’s conviction.

                                  I.

                                   3
                                  A.

    The pertinent facts of record follow.        Defendant’s brother,

John, lived in Edison with their eighty-one-year-old mother,

Anna, and served as her caretaker.      Defendant lived with his

long-term girlfriend about a quarter mile away.      Defendant and

John had a strained relationship with a history of violent,

physical altercations.     According to their oldest brother,

Steven, defendant’s drinking was the root of most of their

conflicts.   As a result, a family friend, Ralph Hopping, acted

as a liaison between John and defendant and was defendant’s only

source of information about his mother’s deteriorating health.

    The day before John’s death, defendant called Hopping

because he was angry that he could not speak directly to his

mother and wanted an update on her condition.       He told Hopping,

“You better get your suit ready.       I have two brothers that

belong in the cemetery.”

    The next day, according to defendant’s girlfriend, John

spoke to defendant over the phone and threatened to kill

defendant if he came to the house to see their mother.       After

the telephone conversation ended, defendant told his girlfriend

that he was going to see his mother and left the house.

Defendant returned home thirty minutes later with blood on his




                                   4
arms, face, neck, and clothing.   When his girlfriend asked about

the blood, defendant told her, “I just did John.”

    Meanwhile, one of Anna’s neighbors arrived home and saw

John lying in the driveway.   Police arrived shortly thereafter

and observed John lying face-down in the driveway, with blood

splatter, a leaf blower, and pieces of brick near his body.

John was pronounced dead at the scene by emergency medical

personnel.

    Later that day, officers located defendant sitting inside

his vehicle in a restaurant parking lot near his home.    As the

officers approached, they observed abrasions on defendant’s

hands and head and blood “spots” on his shirt.   The officers

ordered defendant out of his vehicle and noticed blood on his

boots as well.

    Defendant was arrested and taken to police headquarters,

where he was met by Investigator George Trillhaase and Detective

Tom Duffy for questioning.    Defendant was advised of his Miranda

rights and he requested an attorney.    Investigator Trillhaase

and Detective Duffy stopped the interrogation and met with their

supervisor.   The decision was made to charge defendant with

John’s murder.

    After approximately eighty minutes, Investigator Trillhaase

and Detective Duffy re-entered the interview room and advised

defendant that he was going to be charged with murder.

                                  5
Defendant then asked if he could speak with the investigators,

stating “I’m gonna tell you the truth.”    Defendant was re-read

his Miranda rights, which he waived both orally and in writing.

    Defendant began the conversation by explaining that a few

weeks earlier a fight had occurred involving him, John, and

Steven during a visit to the hospital where their mother was

being treated at the time.    When the interrogators attempted to

redirect the discussion to “how it started today” -- the day of

John’s death -- defendant responded, “Ah, well let’s not talk

about that part.”   He then shifted the dialogue to weapons he

believed John kept at Anna’s house.    In response to inquiries

about how John injured defendant, he stated, “Like I said, we’ll

forget about that part.    He’s not a good person[,] believe me.”

Defendant then, once again, turned to the weapons in Anna’s

house:

         [Inv. Trillhaase]: Tell us why, tell us why
         you’re concerned about the loaded guns [at
         Anna’s house].

         [Defendant]: Because he keeps telling me he’s
         gonna kill me.

         [Inv. Trillhaase]:    Ok.

         [Defendant]:     He’s gonna kill me.

         [Inv. Trillhaase]: What happened today about
         the loaded gun or did that come in play at
         all?

         [Defendant]:     That came in play a long time
         ago.

                                  6
          . . . .

          [Q]2: I believe he asked you if there was [a]
          gun involved today?

          [Defendant]:   Yes.

          [Q]:   How was a gun involved today?

          [Defendant]:   That’s, well he keeps . . .

          [Q]:   Did he threaten you with a gun?

          [Defendant]: . . . telling me.         He keeps
          telling me he’s gonna kill me.

          [Q]:   Ok, did he tell you that today?

          [Defendant]:   Yes, he did.

     Defendant then responded to a series of questions about

events leading up to the fight and the injuries he sustained:

          [Q]:   Can you tell us how you got injured?

          [Defendant]: Who knows? Him biting me. He
          was biting me. Yeah we had a confrontation
          but he was biting me. See?

          [Det. Duffy]: I see, you got there, you got
          cuts on your hand. You got cut on your arm
          . . .

          [Defendant]:   Yeah, well . . .

          [Det. Duffy]: . . . hand’s all swollen.

          [Defendant]: . . . biting me here.       He’s a
          c**t.




2 “[Q]” indicates a question from one of the two interrogators
where the transcript does not specify whether Investigator
Trillhaase or Detective Duffy is the one asking the question.
                                 7
         [Q]: Was anything used, other than your hands
         and your fists?

         [Defendant]:    No, no.

    As the interrogation went on, defendant continued to turn

to other topics and to evade answering questions directly.

         [Det. Duffy]: You said you kicked him on the
         way down or whatever, what, what, what other
         types of blows were thrown? I mean, we see
         obvious injuries, we’re trying to ask and
         trying to find out how did this occur?

         [Defendant]:    I defended myself.

         [Det. Duffy]:    That’s what we’ve been asking
         you.

         [Defendant]:    Ok.

         [Det. Duffy]:   What did he, what did he do
         that you had to defend yourself?

         [Defendant]:    It don’t it don’t matter.

         [Det. Duffy]:    It does matter.

         [Defendant]:   It doesn’t matter.        Hey, I’m
         sorry he’s gone.

    Several times throughout the interrogation defendant answered

questions with “I don’t know.”     For example:

         [Det. Duffy]:    We do believe you.    Already
         told you that.    That’s not even a question
         that I don’t, I understand that he threatened
         you before, you said he threatened you today,
         what happened today?     We know you had a
         confrontation, he bit you, you have wounds on,
         on your hands, you said you kicked him in the
         head, we know that. But there’s the questions
         of cutting, a question of a knife.

         [Defendant]:    No knife.

                                   8
           [Det. Duffy]: What about the brick? The brick
           could have cut him?

           [Defendant]:   I don’t know.    Honestly.

           [Det. Duffy]:    What do you mean, you don’t
           know, you don’t know? You don’t know. What
           was up with the brick? Did he attack you with
           the brick? That’s what I’m asking.

           [Defendant]:   I really can’t talk about stuff
           like that.

    Near the end of questioning, the topic turned to

defendant’s feelings about his brother’s death.        He was asked to

“just walk through it” and “do your brother right.”       Defendant

responded, “I’d rather uh just see a lawyer.      That’s all.    Ok,

thanks.”   The interview concluded with defendant saying, “Put me

down as a murderer.   I’m gonna go down.”

    Defendant was charged with first-degree murder, N.J.S.A.

2C:11-3(a)(1) or (2), and third-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(d).

                                  B.

    Before trial, defendant moved to suppress his statement to

police and argued that the officers did not honor his invocation

of the right to counsel.    At the suppression hearing, the motion

court received testimony from Investigator Trillhaase and viewed

the videotape of defendant’s interview with Investigator

Trillhaase and Detective Duffy.       The court denied defendant’s

suppression motion, and the case proceeded to trial.

                                  9
    During opening statements, the prosecutor explained to the

jury:

          [Defendant] says that he had to defend
          himself, but when pressed he doesn’t give
          details. He avoids them. He doesn’t explain.
          The detectives are asking him, you’ll see
          detectives are asking him to explain what
          happened that day, what happened on April 30?
          And he never says --

Defense counsel moved for a mistrial, contending that the State

improperly commented on defendant’s right to remain silent.      The

trial court denied the motion.

    During Investigator Trillhaase’s testimony at trial, the

prosecutor asked him if defendant spoke in detail about the

events on the day John died and if defendant was given an

opportunity to “explain what happened that day.”   At sidebar,

defense counsel objected, claiming that the State was, once

again, impermissibly commenting on defendant’s right to remain

silent.   The trial judge sustained the objection but held that

if defendant testified, the prosecutor would be permitted to

cross-examine him on inconsistencies between his trial testimony

and statements to police.

    Defendant elected to testify on his own behalf at trial and

claimed to have acted in self-defense.   Defendant stated that he

and John had a volatile relationship because defendant was not

kept informed about their mother’s health.   Defendant confirmed

that he went to his mother’s house on the day of John’s death.

                                 10
He said that he intended to visit their mother because she had

just come home from a rehabilitation center.   Defendant

testified that he did not expect John to be at home, but when

defendant arrived, John was in the driveway fixing a leaf

blower.   According to defendant, John asked where he was going,

and defendant replied that he was going to see their mother.

Defendant testified that John said, “No you’re not,” then pushed

and hit defendant.   By defendant’s account, John bit defendant

during their altercation and stabbed him with a screwdriver in

his left arm.   They then both grabbed bricks from a pile and

swung them at each other.

    Following defendant’s direct testimony, the trial judge

discussed with counsel the proper limits of cross-examination.

The prosecutor argued that once a person waives his or her

Miranda rights, any post-Miranda silence is subject to cross-

examination or comment.   The judge allowed the prosecutor to

“use anything that [defendant] said [on direct] against him if

[it] contradicts what he said in his statement” to police.      The

judge also instructed that “almost everything that [defendant]

said as to what happened on that date is attackable” but that

non-responsive answers to the police could not be raised.

Although defendant’s pretrial motion to suppress his statement

to police had been denied, defense counsel responded that the

“entire statement was essentially a very long invocation of the

                                11
right to remain silent” and that the State’s proposed line of

questioning was an “inferential comment on [defendant’s] right

to remain silent.”

     During defendant’s cross-examination, the prosecutor

focused on details that defendant testified to on direct

examination but failed to mention to police during his post-

arrest interrogation.3

          [STATE:]    Let me get this straight, sir.
          You’re   now   saying  that some  kind  of
          screwdriver was involved?

          [DEFENDANT:]   Yes.

          [STATE:] Okay. Ever mention a screwdriver at
          all in the statement that we saw yesterday?

          [DEFENDANT:]   No, I did not.

          [STATE:]   Ever?

          [DEFENDANT:]   No.

          [STATE:]   No.   Did the Detectives ask you
          multiple times if any weapons were used?

          . . . .

          [DEFENDANT:]   I didn’t want to answer any
          questions that had to do with that. What my
          brother did to me, what I did to him, I didn’t
          want to talk about that.




3  In the interest of brevity, we do not include every portion of
defendant’s cross-examination relevant to the issue in this
appeal. Instead, the excerpts provided are representative of
the dialogue between defendant and the prosecutor.
                                12
    Despite an objection by defense counsel, the State

continued to question defendant about missing details in his

post-arrest statement.

         [STATE:] Did you tell the Detectives that you
         got stabbed with a screwdriver into your
         muscle?

         [DEFENDANT:] No. I didn’t want to talk about
         that. They asked me about it. I didn’t want
         to talk about it.

         [STATE:]   So you defended yourself against
         this attack from John by a screwdriver and you
         don’t want to tell the cops that?

         . . . .

         [STATE:]   You’re saying today, three-and-a-
         half years later, you don’t want to tell the
         cops that you got stabbed by a screwdriver by
         John?

         [DEFENDANT:] I didn’t want to talk about it.
         They asked me [what] other wounds I had on me
         and I just didn’t want to talk about it.

         . . . .

         [STATE:]    When they asked you, “Were any
         weapons used other than your hands and fists,”
         you said what?

         . . . .

         [DEFENDANT:] I didn’t want to talk about it.
         I didn’t want to talk about what went on there,
         what he did and what I did.

         [STATE:] After being charged with murder, you
         didn’t want to talk about it?




                               13
    At sidebar, the court instructed the prosecutor to avoid

questions about the information defendant did not disclose to

police.   The prosecutor then continued as follows:

          [STATE:] So back on April 30th, you tell the
          police “We just had an argument.” Right?

          [DEFENDANT:]   Uh-huh.

          [STATE:] Today you give all kinds of details
          . . . [a]bout what happened in the driveway.

          [DEFENDANT:]   Once again, I didn’t want to
          talk about it.

          [STATE:] After they charged you with murder,
          you didn’t want to talk about it?

          [DEFENDANT:]   I didn’t want to talk about it.

          . . . .

          [STATE:]    [During the interrogation] the
          Detectives asked you what happened when you
          got there, and you say, “I don’t know.” Right?

          [DEFENDANT:]   Yes.

          [STATE:] Today you give us all kinds of detail
          of what happened when you got there. Right?

          [DEFENDANT:] I said I don’t know.       This way
          I wouldn’t have to talk about it.

    After further questioning by the prosecutor, defense

counsel moved for a mistrial.      The trial court denied the motion

but gave the following instruction to the jury:

               A Defendant has a right to remain silent,
          and no inference of guilt should be drawn from
          his exercise of that right.      It should be
          limited    to   assessing   the    Defendant’s
          credibility and that invoking his right to

                                   14
         remain silent may not be used in determining
         whether he is guilty or not guilty.

              So if he said something which was
         contradictory in one statement as opposed to
         the other, that determines -- you can use that
         relative to determine [sic] his credibility.
         But the fact that he exercises his right to
         remain silent relative to some questions, you
         can’t make the determination of his guilt or
         innocence based on that. Okay?

Defense counsel did not object.

    When the trial resumed five days later, defense counsel

informed the court that the instructions previously given to the

jury advised that defendant’s silence could be used for

impeachment purposes.   To fix this error, defense counsel

requested a limiting instruction.      The trial court issued a

clarifying instruction, stating that “a defendant has a right to

remain silent and no inference of guilt should be drawn from his

exercise of that right.”   This instruction was repeated, without

objection, during the final jury charge.

    The jury found defendant guilty of the lesser-included

offense of passion/provocation manslaughter, N.J.S.A. 2C:11-

4(b)(2), as well as third-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(d).     The court merged the

convictions and imposed a nine-year term of imprisonment subject

to an eighty-five percent period of parole ineligibility

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

well as appropriate fines and fees.

                                  15
    Defendant appealed, arguing that the prosecutor improperly

cross-examined defendant on his failure to provide details of

his self-defense claim during his post-arrest statement to

police.   The Appellate Division reversed defendant’s conviction

and remanded for a new trial, determining that the prosecutor’s

questions on cross-examination were improper and violated

defendant’s right against self-incrimination.   The panel found

that defendant invoked his right to remain silent by telling the

police that he did not want to talk about certain subjects and

answer certain questions.   It reasoned that, accordingly, the

statements could not be used for any purpose, including

impeachment.   Further, the Appellate Division found the trial

court’s instructions to the jury were fatally flawed because,

“[i]n both instructions, the judge failed to advise the jurors

that no inference of defendant’s guilt or credibility should be

drawn from the exercise of his right to remain silent.”

    This Court granted the State’s petition for certification.

State v. Kucinski, 224 N.J. 282 (2016).   We also granted amicus

curiae status to the Attorney General of New Jersey.

                                II.

    The State contends that although it may not comment on a

defendant’s silence at or near the time of arrest, defendant

here did not invoke his right to remain silent because he

voluntarily waived his Miranda rights, both orally and in

                                16
writing, and proceeded to speak to the detectives.   Relying on

this Court’s decision in State v. Tucker, 190 N.J. 183 (2007),

and holdings of the United States Supreme Court, the State

claims that “[t]he outline of the relevant precedent shows that

a defendant who speaks freely after waiving his Miranda rights

can be cross-examined if he testifies at trial inconsistently

with his prior statement.”   Because defendant here was not

silent, and because he signed a waiver of his right to remain

silent, the State argues that defendant was “no longer cloaked

with the protections afforded under Miranda.”    Therefore, “[t]he

detailed story defendant provided from the stand at trial was

subject to attack on the ground that when defendant spoke to

police a few hours after the murder, he had said hardly any of

it.”

       Like the State, the Attorney General contends that “[t]his

case is not about silence” but is about defendant’s refusal to

speak about certain subjects while freely speaking about others

after he was read his Miranda rights and waived them.   According

to the Attorney General, defendant’s decision to select the

degree of detail with which he would answer questions was not an

assertion of the right to remain silent, and by offering more

detail on the stand than during the interrogation, defendant

presented two different versions of the event.



                                 17
    The Attorney General argues that, by telling the officer “I

don’t know” or “I don’t want to talk about that” in response to

precise questions, defendant gave a statement that was “vastly

different” from his testimony on the stand, in which he provided

very specific details about the events that took place leading

up to John’s death.   If prosecutors are not permitted to

question a defendant about omissions and inconsistencies between

a post-Miranda statement and in-court testimony, the Attorney

General asserts, “a defendant has the opportunity to manipulate

his or her trial testimony with recently fabricated details

based on gaps in his or her previous statements.”   The Attorney

General also maintains that any limiting instruction issued to

the jury about defendant’s post-arrest statement was

unnecessary.

    Defendant asserts that “[a] reasonable interpretation of

the Miranda warnings is that one has the right to say nothing at

all, and should the right to speak be exercised, it does not

carry with it the affirmative obligation to come forth with the

complete and precise exculpatory version one intends to later

rely on.”   Therefore, defendant’s waiver did not “impose some

affirmative obligation on him to speak, much less to speak on

all matters of interest to the State and, therefore, he cannot

be impugned for his failure to do so.”   Defendant argues that

the right to remain silent is rendered “illusory” if the State

                                18
is permitted to cross-examine a defendant who first waives his

Miranda rights and then later invokes his right to remain silent

by refusing to respond to certain questions.   Finally, defendant

claims that he was permitted to, and did, invoke his right to

remain silent as to particular questions.

                               III.

    We begin by noting that the Fifth Amendment of the United

States Constitution guarantees that “[n]o person . . . shall be

compelled in any criminal case to be a witness against himself.”

U.S. Const. amend. V.   The federal protection against compelled

self-incrimination must be “scrupulously honored.”   Michigan v.

Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 326, 46 L. Ed. 2d

313, 321 (1975) (quoting Miranda, supra, 384 U.S. at 479, 86 S.

Ct. at 1630, 16 L. Ed. 2d at 726); see also State v. Kennedy, 97

N.J. 278, 288 (1984).

    Although New Jersey’s privilege against self-incrimination

is not enshrined in our State Constitution, “the privilege

itself is firmly established as part of the common law of New

Jersey and has been incorporated into our Rules of Evidence.”

State v. Hartley, 103 N.J. 252, 260 (1986) (quoting In re

Martin, 90 N.J. 295, 331 (1982)); N.J.R.E. 501, 502, 503.

Furthermore, “[o]ur state-law privilege against self-

incrimination offers broader protection than its federal



                                19
counterpart under the Fifth Amendment.”    State v. Muhammad, 182

N.J. 551, 568 (2005).

                                 A.

    The United States Supreme Court first considered whether a

defendant’s pretrial silence could be used to impeach his

credibility on cross-examination at trial in United States v.

Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975).

There, the defendant was placed under arrest, given Miranda

warnings, and remained silent.   Id. at 174, 95 S. Ct. at 2135,

45 L. Ed. 2d at 103.    During his testimony at trial, however,

the defendant provided a detailed alibi for his whereabouts

during the commission of the crime at issue.    Ibid.   Relying on

evidentiary rather than constitutional grounds, the Court found

that the risk of unfair prejudice by admitting it into evidence

outweighed the probative value of the defendant’s pretrial

silence, id. at 180, 95 S. Ct. at 2138, 45 L. Ed. 2d at 107, and

that “his failure to offer an explanation during . . . custodial

interrogation can as easily be taken to indicate reliance on the

right to remain silent as to support an inference that the

explanatory testimony was a later fabrication,” id. at 177, 95

S. Ct. at 2137, 45 L. Ed. 2d at 105.

    A year later, this Court considered a similar question in

State v. Deatore and held that, “whether or not the defendant

received his Miranda warnings,” 70 N.J. 100, 117 n.10 (1976), a

                                 20
defendant who remains silent “at or near the time of his arrest”

cannot be cross-examined about that silence if he subsequently

testifies to an exculpatory version of events at trial, id. at

108-09.

       The United States Supreme Court reached a similar

conclusion, this time on constitutional grounds, in Doyle v.

Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).         The

Court concluded that “it would be fundamentally unfair and a

deprivation of due process to allow the arrested person’s

silence to be used to impeach an explanation subsequently

offered at trial.”       Id. at 618, 96 S. Ct. at 2245, 49 L. Ed. 2d

at 98.

       We incorporated Doyle’s reasoning into our decision in

State v. Lyle, 73 N.J. 403 (1977).       In Lyle, supra, the victim

was shot after he entered the defendant’s store.       73 N.J. at

405.     When investigating officers arrived at the scene asking

for “Henry,” the defendant responded, “Yes, I’m Henry.      I shot

him.”    Id. at 406.    The officers then administered Miranda

warnings, after which the defendant made no response.       Ibid.     At

trial, the defendant testified that he acted in self-defense,

stating that the victim tried to attack him with a screwdriver.

Id. at 405, 408.       The prosecutor pointed out, in his cross-

examination of the defendant and in summation, that the

defendant failed to mention a screwdriver to officers who first

                                    21
responded to the scene.      Id. at 408-09.   Highlighting Doyle and

Deatore, we made clear that “the State’s use of a defendant’s

post-arrest silence for purposes of impeaching his exculpatory

defense violates due process” and is “improper irrespective of

whether [Miranda] warnings are given.”        Id. at 409-10 (citing

Deatore, supra, 70 N.J. at 117 n.10).

    This Court applied the general principles of Lyle and

Deatore in our decision in Muhammad.      In that case, a woman was

walking home from her cousin’s house through an area in Paterson

known for prostitution.      Muhammad, supra, 182 N.J. at 559. As

she walked, the defendant approached the woman in a vehicle,

identified himself as a Paterson police officer, stated that she

was under arrest for prostitution, and ordered her into the back

seat of his car.   Ibid.     At the time of the offense, the

defendant was a fifteen-year veteran of the City of Passaic

police force but had been terminated from that job a month

earlier.   Id. at 559 n.1.    The defendant drove the victim to a

dark, dead-end street and sexually assaulted her.       Id. at 559.

Thereafter, the woman insisted that she be driven to the local

jail, and, upon their arrival at Paterson police headquarters,

the defendant told the sergeant on duty that the victim was

brought in because she had harassed the defendant’s siblings.

Id. at 560.   The victim interrupted, accused the defendant of

lying, told the sergeant she had been raped, and produced the

                                   22
condom the defendant used as proof.    Ibid.   The defendant became

visibly nervous and asked if he could go home.    Id. at 561.       He

was detained at the police station, however, and eventually

placed under arrest.   Ibid.

      At trial, defense counsel asserted that the victim was a

prostitute and the sex was consensual.    Id. at 562.    In opening

and closing arguments and during questioning of witnesses, the

prosecutor “repeatedly referenced [the] defendant’s failure to

make any mention at police headquarters of a consensual

encounter with [the victim] or that she was a prostitute.”

Ibid.

      We held in Muhammad that the State’s questioning violated

the defendant’s right against self-incrimination.      Id. at 573-

74.   Explaining that it was of no consequence that the defendant

initially presented the story of harassment to officers before

falling silent, we said, “A suspect who begins to speak to the

police while in custody, during interrogation, or ‘at or near’

the time of his arrest does not waive his right against self-

incrimination when he falls silent.”     Id. at 568.    “In other

words, by speaking with the police, a suspect does not waive his

right to invoke the privilege and remain silent at some later

point.”   Ibid.

                                B.



                                23
    Also germane to the issue before this Court is whether a

defendant may be cross-examined on factual inconsistencies

between his testimony at trial and his pretrial statement.      Both

federal and New Jersey jurisprudence establish guidelines for

cross-examination of a defendant on such inconsistencies.      In

Anderson v. Charles, the United States Supreme Court found that

the holding in Doyle -- that a prosecutor cannot cross-examine a

defendant on his post-arrest silence after being given Miranda

warnings -- “does not apply to cross-examination that merely

inquires into prior inconsistent statements . . . because a

defendant who voluntarily speaks after receiving Miranda

warnings has not been induced to remain silent.”    447 U.S. 404,

408, 100 S. Ct. 2180, 2182, 65 L. Ed. 2d 222, 226 (1980).

Importantly, the Court went on to explain that, while “two

inconsistent descriptions of events may be said to involve

‘silence’ insofar as [one] omits facts included in the other

version[,] . . . Doyle does not require any such formalistic

understanding of ‘silence,’ and we find no reason to adopt such

a view in this case.”   Id. at 409, 100 S. Ct. at 2182, 65 L. Ed.

2d at 227.

    Following Anderson, this Court decided Tucker.    There, the

defendant, Tucker, called 9-1-1 and reported that he had

returned home to discover his mother’s dead body.   Tucker,

supra, 190 N.J. at 185.   Upon questioning by the responding

                                24
officer, Tucker stated that he last saw his mother two days

earlier when he drove her home from the grocery store, before

leaving to spend the weekend with his girlfriend.        Ibid.   The

police then transported Tucker to police headquarters and

administered Miranda warnings.     Ibid.      Around that time, Tucker

reiterated the story about how he last saw his mother when he

brought her home from the grocery store.        Id. at 186.

       Subsequent investigation revealed that Tucker’s mother made

a check out to cash in the amount of $3000, and that she cashed

a check at the local bank on the day that Tucker claimed to have

brought her to the grocery store.     Ibid.     In a second interview

with the police, Tucker was again read his Miranda rights.

Ibid.   Tucker then admitted that he took his mother to the bank,

but stated that he waited for her in the car.        Ibid.

Surveillance tapes from the bank revealed that Tucker went

inside the bank with his mother.      Ibid.

       At trial, the State called attention to those

inconsistencies during its direct examination of officers who

questioned Tucker, and in its opening and closing statements.

Id. at 187.   Tucker argued that “under established law, facts

omitted from a statement are the same as the exercise of the

right to remain silent, and therefore, the omissions are not

admissible for any purpose.”    Id. at 188.      We disagreed.   Id. at

189.

                                 25
    We determined that the prosecutor’s use of inconsistencies

between a pretrial statement and the defendant’s testimony --

the situation in Anderson -- is comparable to highlighting

inconsistencies in several statements given prior to trial --

the situation in Tucker -- because there is “no meaningful

distinction between the two situations that would justify a

different result.”    Id. at 189-90.   We also distinguished Tucker

from Muhammad, in that the defendant in Tucker did not remain

silent but freely related different stories to the police.     Id.

at 190.   Thus, we held that “it is not an infringement of a

defendant’s right to remain silent for the State to point out

differences in the defendant’s testimony at trial and his or her

statements that were freely given.”    Id. at 189.

                                 IV.

                                 A.

    We must now apply state and federal precedent to the issue

before the Court:    whether defendant invoked his right to remain

silent by refusing to answer certain questions posed by police;

and, if so, whether the prosecutor improperly commented on

defendant’s silence by cross-examining him about details to

which he testified on direct examination but omitted from his

account given to police.

    This Court has a strong tradition of protecting the right

to remain silent.    See, e.g., Deatore, supra, 70 N.J. at 115-17.

                                 26
When a defendant invokes his or her right to remain silent, the

interrogation must cease, at least until some time has lapsed

and the defendant is reread his Miranda rights.   Hartley, supra,

103 N.J. at 266-67; see also Mosley, supra, 423 U.S. at 104-105,

96 S. Ct. at 327, 46 L. Ed. 2d at 322.   That being said, even if

a defendant is successful in invoking his or her right to remain

silent about a particular subject, this right is waived if the

defendant discusses, of his or her own volition, that very topic

just moments later.   Miranda, supra, 384 U.S. at 478, 86 S. Ct.

at 1630, 16 L. Ed. 2d at 726 (“Any statement given freely and

voluntarily without any compelling influences is, of course,

admissible in evidence.”); see also Bradley v. Meachum, 918 F.2d

338, 343 (2d Cir. 1990) (“[The defendant] cannot be said to have

invoked his fifth amendment right regarding his willingness to

discuss his involvement in the crime because, in the same

breath, he denied any involvement.”), cert. denied, 501 U.S.

1221, 111 S. Ct. 2835, 115 L. Ed. 2d 1004 (1991); United States

v. Lorenzo, 570 F.2d 294, 298 (9th Cir. 1978) (“[I]n light of

the willingness with which [the defendant] began to talk to the

officers - and continued to do so after his failure to respond

to a single question - he cannot be said to have invoked his

right to remain silent.”).

    First, we hold that defendant waived his right to remain

silent.   Defendant was cognizant of his Miranda rights and

                                27
clearly and unambiguously invoked his right to counsel when

police originally administered Miranda warnings and again at the

end of the interview.   However, after first invoking his right

to counsel, it was defendant who asked to speak with officers so

that he could “tell [them] the truth.”

    After acknowledging that he had fought with his brother,

defendant avoided questions by saying “[a]h, let’s not talk

about that part,” “we’ll forget about that part,” “it doesn’t

matter,” and “I don’t remember.”     By making those remarks at

specific moments during the interrogation, defendant exhibited

hesitation to provide police with some details about John’s

death.   Nevertheless, considered in context, defendant’s refusal

to answer certain questions was not an attempt to end the

dialogue, but rather was “part of an ongoing stream of speech,”

which included information about the altercation and defendant’s

family disputes.   Meachum, supra, 918 F.2d at 342.

    Defendant discussed his conflicts with his brothers, his

concern that they would kill him, and the guns in Anna’s house.

Most importantly, defendant voluntarily provided details about

the altercation that led to John’s death -- the very subject

about which he previously said, “let’s not talk about that

part.”   For example, defendant explained that John threatened to

kill him when he got to Anna’s house, that they “had a

confrontation,” and that his injuries resulted from John’s

                                28
biting him.   In other words, defendant told investigators about

his recollection of the altercation with John -- he thus spoke

on that subject.

    Because we find that defendant waived his right to remain

silent, cross-examination regarding facts to which he testified

at trial, but omitted in his statement to police, was proper.

See United States v. Fambro, 526 F.3d 836, 842 (5th Cir.) (“A

defendant cannot have it both ways.   If he talks, what he says

or omits is to be judged on its merits or[] demerits, and not on

some artificial standard that only the part that helps him can

be later referred to.” (quoting United States v. Goldman, 563

F.2d 501, 503 (1st Cir. 1977), cert. denied, 434 U.S. 1067, 98

S. Ct. 1245, 55 L. Ed. 2d 768 (1978))), cert. denied, 555 U.S.

1050, 129 S. Ct. 625, 172 L. Ed. 2d 617 (2008); United States v.

Donnat, 311 F.3d 99, 104-05 (1st Cir. 2002) (“Where the

defendant elects to speak to the police and gives statements

that he later contradicts at trial, a prosecutor’s inquiry into

the defendant’s failure to give the exculpatory account before

trial does not draw a negative inference from defendant’s

decision to remain silent but rather from his prior inconsistent

statement.” (emphasis added)); Agnellino v. New Jersey, 493 F.2d

714, 730 (3d Cir. 1974) (Weis, J., concurring) (“A defendant who

chooses to answer questions with half truths cannot claim

constitutional protection to remain silent as to the other half.

                                29
A complete answer to a question may be as inconsistent with a

partial reply as one completely different in detail.” (emphasis

added)).   If a defendant elects to speak to the police and

offers an account of what happened, then he has not remained

silent -- he has spoken.     Tucker, supra, 190 N.J. at 189 (“[I]t

is not an infringement of a defendant’s right to remain silent

for the State to point out differences in the defendant’s

testimony at trial and his or her statements that were freely

given.” (emphasis added)); see Agnellino, supra, 493 F.2d at 730

(Weis, J., concurring).

    During interrogation, defendant claimed his injuries were

caused by John biting him.    Interrogators followed up by asking

if “anything [was] used, other than [his] hands and [] fists,”

to which defendant responded, “No. no.”    Defendant’s story

changed during his direct examination when he claimed John

stabbed him in the arm with a screwdriver and he was forced to

defend himself.   Therefore, the State’s cross-examination sought

to highlight the inconsistency between defendant’s statement to

police during interrogation and his testimony on direct

examination at trial.    This inconsistency is a permissible area

for cross-examination.

    Finally, as a result of our conclusion that defendant did

not invoke his right to remain silent, we find that any error in



                                  30
the trial court’s instruction to the jury, to which defendant

did not object, was harmless.   R. 2:10-2.

                                V.

    For the reasons set forth above, the judgment of the

Appellate Division is reversed, and defendant’s conviction is

reinstated.


     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s
opinion.




                                31
