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Full Opinion
NOT FOR PUBLICATION WITHOUT THE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-1013-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL T. WEATHERSBEE,
a/k/a MICHAEL T.
WEATHERBEE,
Defendant-Appellant.
___________________________
Argued October 21, 2024 – Decided March 6, 2025
Before Judges Gummer, Berdote Byrne, and Jacobs.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 18-12-1104.
Austin J. Howard, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer Nicole Sellitti,
Public Defender, attorney; Austin J. Howard, of
counsel and on the briefs).
Patrick F. Galdieri, II, Assistant Prosecutor, argued the
cause for the respondent (Esther Suarez, Hudson
County Prosecutor, attorney; Patrick F. Galdieri, II, of
counsel and on the brief).
PER CURIAM
Defendant Michael Weathersbee appeals convictions for murder and
related weapons offenses. Defendant contends he was denied a fair trial because
the trial court improperly admitted into evidence a recording of a police
interrogation of defendant in violation of his right against self-incrimination and
due-process rights. In addition to challenging the admission of the statement in
its entirety, defendant faults the court for failing to require redaction of certain
portions of the statement. Those portions included detectives opining about
defendant's guilt, credibility, motive, opportunity, and premeditation.
Defendant further contends the trial court improperly allowed the State to
comment on the invocation of his right to silence and precluded him from cross-
examining a witness about identification testimony. Because the court erred in
admitting the recording of defendant's statement and in detailing the predicate
offenses on which a certain-person charge was based, and due to the cumulative
errors by the court, we vacate the judgment of conviction and remand for
proceedings consistent with this opinion.
I.
Just after 2:00 a.m. on September 23, 2018, the Jersey City Police
Department received a report of a shooting in the vicinity of New Street.
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2
Arriving on the scene, police observed a man seated in the driver's seat of a car.
It was apparent he had suffered gunshot wounds to the head and torso. The man,
later identified as Laquan Clark, was brought to the Jersey City Medical Center
and pronounced deceased.
Earlier that evening, Clark had been at "Brenda's Place," a bar close to
where he was later found shot. As part of their investigation, police gathered
video footage from businesses, residences, and CCTV cameras in the
surrounding area. That footage shows Clark arriving at the bar at approximately
12:10 a.m., and later walking in and out of the bar several times. After the bar
closed at 2:00 a.m., Clark walked a short distance to his car parked on New
Street. The shooting was not captured on video, but the reaction of other patrons
who had congregated just outside the bar as the shooting took place is visible.
The video shows the presumed perpetrator soon after the shooting running down
New Street, away from Clark's car.
Police investigation linked the video footage of the man running from the
scene to a Jeep Cherokee seen circling the area, then speeding away. Further
investigation found the Jeep was registered to Michael Weathersbee, Sr.,
defendant's father. Defendant's father informed detectives defendant had
exclusive use of the vehicle during the time in question.
A-1013-22
3
The Interrogation
Based on this information, several members of the Hudson County
Prosecutor's Office (HCPO) traveled to defendant's workplace and transported
him in a police car to the HCPO Homicide Unit. Once there, detectives took
possession of defendant's cell phone and escorted him to a 10 x 10-foot interview
room. Defendant was seated with his back against a wall, while Detectives
Lamar Nelson and Kenneth Green sat between defendant and the room's only
door. Defendant remained in the room for over seven hours. Within that period,
the detectives questioned defendant for approximately two and a half hours.
After collecting biographical information and before administering
Miranda rights, detectives told defendant, "[j]ust like . . . anybody else that
come[s] down here, we gotta read you your rights and things like that." Miranda
v. Arizona, 384 U.S. 436, 444 (1966). When asked if he wished to answer
questions, defendant responded, "Mm, cool." Detectives handed defendant a
printed copy of the Miranda rights. While reading aloud, defendant paused at
the word "coercion." Detective Nelson explained that defendant was not
"forced" or "pressured" to speak with them. Defendant then signed the Miranda
waiver form.
Detectives informed defendant they "just had a couple of questions . . .
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4
and see if you can kinda help us out, see what's going on here." Defendant
responded "[n]ot a problem." Asked about the decedent, defendant stated, "I
don't know him personally, but yes, I know of him." As the questioning
proceeded, defendant confirmed he had lived on the same block as Clark in 2014
but that he had "no personal issues with him."
The detectives pressed, noting that on September 5, 2018, Clark had
uploaded to Facebook a copy of a cooperation agreement with the HCPO signed
by defendant. In the Facebook post, Clark accused defendant of being a "rat."
Defendant claimed not to have taken Clark's post "personally" because "[t]his is
what's going on with everybody" and the "rumors [were] already out."
Defendant further noted Clark had confronted him about the cooperation
agreement two years earlier, in 2016.
Detectives challenged defendant, stating "there's no way you do not take
it personal. You have to take it personal at this point 'cause now he's putting
your life in jeopardy." Ultimately, defendant said "I agree. I agree. I agree. It
does take it to another level." He elaborated:
DEFENDANT: My, my mindset was already different.
My mind - I was already…
DETECTIVE NELSON: Yeah, it was, it was . . .
DEFENDANT: . . . on my toes.
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DETECTIVE NELSON: Right. You were on your
toes, right? You, you was, you was on your toes. But
September 5th, motherfucker, you was on your pinky
toe. You was at another level. Trust what I'm telling
you. I know that. You can't deny that. This changes
the game. All that talk and rumors, yah, ba, ba, ba, ba.
But when motherfuckers see pictures of, of, of reports
and all - come on. It's through the roof because not only
does it affect you, it affects your kids . . . .
Having addressed motive, detectives shifted their focus to defendant's
whereabouts on the night of the murder. Defendant gave conflicting accounts,
ultimately acknowledging he had not been "exactly truthful with [the
detectives]." Approximately two hours into the interrogation, detectives made
a series of statements to defendant, directly accusing him of the homicide.
DETECTIVE GREEN: You tried to play God last
week.
DEFENDANT: No, I didn't.
DETECTIVE GREEN: You went in there and you, you
said, I'm God tonight. And you shot that man in his car.
No other way around this, man. You gotta tell your
story before it's just too late.
UNIDENTIFIED DETECTIVE: What's up?
DEFENDANT: Can I go home to my kids?
UNIDENTIFIED DETECTIVE: I didn't hear what you
said, bru.
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DEFENDANT: Said, can I go home to my kids? What's
going on?
UNIDENTIFIED DETECTIVE: You may not be going
home. You understand? You may not be going home.
They been here for three hours trying to get you to help
yourself and you don't wanna help yourself. So you
may not be going home. You understand? Bruh, Mike,
you understand?
DEFENDANT: I understand what you saying.
UNIDENTIFIED DETECTIVE: Okay. But it's not
working. They giving you a lot, right? And you ain't
giving them nothing back. They trying to help you but
you ain't willing to help yourself. So you putting me
on the spot now. I gotta make a decision. And you
know I change lives, right? I change lives.
DEFENDANT: I don't, I don't know you, so.
UNIDENTIFIED DETECTIVE: Nope. Well, you don't
have to know me. But believe it or not, I will change
your life. Don't sit here and waste people time. They
trying to help you. So help yourself. No?
[Emphasis added.]
Defendant pressed his request to go home.
DEFENDANT: (Unintelligible) go home?
UNIDENTIFIED DETECTIVE: You asking me?
DEFENDANT: Yeah.
UNIDENTIFIED DETECTIVE: Nah. You ain't give
me a reason for you to go home. I haven't heard one
A-1013-22
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thing. I heard a bunch of lies earlier. That's not enough
for you to go home. Give me a reason. Give me a
reason for me to stay here another hour. Give me a
reason. Stop being selfish.
Defendant did not confess.
UNIDENTIFIEED DETECTIVE: What's the deal,
man? Mike, listen. You, you been here couple of times.
You listening?
DEFENDANT: Yeah, I'm listening, but I don't, I don't
got nothing else to say, man. Just get in contact with
Ashley so I can get outta here. Fuck.
Notwithstanding this and other requests to end the interrogation, the
detectives did not stop. Approximately seventy-five minutes following
defendant's request to "get in contact with Ashley" so he could "get outta here,"
detectives provided defendant with water and coffee and told him to "knock if
[he] need[ed] anything." Defendant was confined to the room for twenty -three
minutes as they prepared a complaint for murder and weapons offenses.
Eyewitness Statement
On the day of defendant's interrogation, detectives interviewed Eva Reid,
a witness who had been sitting on her porch across from Brenda's bar on the
night of the shooting. Reid told detectives she saw a tall, slender man with dark
clothing run toward Clark's car, fire four shots, and then run away. Reid said
her vision "was blurry, because [she] was drinking and smoking." The following
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exchange then occurred:
DETECTIVE NELSON: So you could see his hair? He
or she.
REID: No. But I know that it wasn't no dreads or
nothing. It was no dreads, no hair. It was like, like
wavy like.
DETECTIVE NELSON: But can you confirm that,
though?
REID: No. But I . . .
DETECTIVE NELSON: You can't confirm that?
REID: No. But I know that it wasn't no dreads. I know
that he didn't have no hair.
DETECTIVE NELSON: Can you confirm that? You
just told me that it was blurry. So the only thing . . .
REID: Yeah.
DETECTIVE NELSON: . . . you can confirm right
now, you said was . . .
REID: Is dark clothes.
DETECTIVE NELSON: . . . is dark clothes. You're
positive about dark clothes.
REID: Yes. I'm positive about that.
DETECTIVE REID: But pertaining to hair and any
other thing, can you truly say . . .
A-1013-22
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REID: I know he was tall.
[Emphases added.]
Reid's statement as to the shooter not having dreads, or dreadlocks, was
significant, as defendant wore dreadlocks on the day of the homicide and the
date of arrest.
While defendant was still in custody, detectives brought back Reid for a
second interview. They showed her footage from the time of the shooting
captured by a camera located near the crime scene on New Street.
DETECTIVE NELSON: Can you, just based on just
this description right here, the description earlier was
dark clothing.
REID: Right.
DETECTIVE NELSON: Tall male.
REID: Right.
DETECTIVE NESON: Is this what you saw leaving
the area?
REID: Mm. Not that dark clothing, I mean, this - not
this clothing right here.
....
DETECTIVE NELSON: So I'mma [sic] show you
another video. You know what? I'm gonna go up a little
bit further. Right now it's showing 42:30, which is
A-1013-22
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actually hour and 30 minutes 25 slow. You see him
running.
REID: Mm-hmm, mm-hmm. But he don't have that
same hoodie on, though.
Detective Nelson showed Reid another video from a different angle in
which the same individual, who detectives believed to be defendant, was
present. Once more, Reid qualified her identification. Defense counsel's
attempt to exploit inconsistencies in Reid's description of the suspect's hair and
incongruent video footage was later disallowed by the trial court.
Indictment
In December 2018, a Hudson County grand jury billed an indictment
against defendant, charging him with first-degree murder, N.J.S.A. 2C:11-
3(a)(1) to (2); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a)(1); second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b)(1); and second-degree certain person not to have weapons
or ammunition, N.J.S.A. 2C:39-7(b)(1).
Miranda Hearing and Wade Application
Defendant moved to suppress the statement he had made to detectives.
The motion court held a Miranda hearing in June 2019. The State did not contest
that defendant was in custody while questioned at the Homicide Unit. Detective
A-1013-22
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Nelson was the sole witness to testify. He was asked whether defendant was a
target when brought to the Homicide Unit:
DETECTIVE NELSON: Target? I would — I just
know he was a person of interest. I wouldn't say target.
DEFENSE COUNSEL: He was —
DETECTIVE NELSON: I was still unsure.
DEFENSE COUNSEL: — a person of interest as a
shooter in an open homicide investigation, right?
DETECTIVE NELSON: Yes.
In a written order dated July 12, 2019, the motion court denied defendant's
motion to exclude his statement. The motion court did not articulate a finding
about whether defendant had gone voluntarily to the station, nor did the court
make findings about Detective Nelson’s general credibility. The court found
that defendant was in custody only when the detectives told him "[y]ou ain't give
me reason for you to go home" more than halfway into the interview. The court
was satisfied that the State had established beyond a reasonable doubt "that the
suspect's waiver was knowing, intelligent[], and voluntary in light of all the
circumstances." In particular, the motion court found that defendant's reply of
"Mm, cool" signified he was willing to talk to the police, and his later response
"Not a problem" resolved any possible ambiguities concerning his initial
A-1013-22
12
utterance. The motion court further found that the implied threat that defendant
would be retaliated against as a result of the murder did not rise "to the level of
very substantial psychological pressure that would be necessary to overbear
[d]efendant's will and render his subsequent statement involuntary." In this
context, the motion court observed that the police had not threatened defendant.
They were instead "promis[ing] that [d]efendant would be safer if he cooperated
. . . ."
In assessing "the totality of the circumstances surrounding the elicitation
of [d]efendant's statement to police," the motion court noted that "[d]efendant
had previous experience talking to police as a witness." The motion court found
that "[i]t does not appear that the interview was conducted in conditions that
would overbear his will, as he was provided with water and breaks. Under these
circumstances, the vast majority of the interview suggests that this statement
was elicited voluntarily." In exception to these findings, the motion court found:
towards the end of the interview, [d]efendant asked the
detectives, "Can I go home to my kids?" However,
instead of clarifying if [d]efendant is seeking to assert
his right to remain silent, the detectives proceed to tell
him he may not be going home tonight, and that he
should stop being selfish and what was best for his
children by cooperating with the police.
As noted above, at this point, one of the detectives replied, "Nah. You
A-1013-22
13
ain't give me reason for you to go home." Regarding this exchange, the court
found that:
defendant was in custody, and clearly subject to
interrogation, so his Miranda rights were implicated. In
context, this appears to have been in response to one of
the detectives telling [d]efendant, "I wanna go home,
man. And I know you wanna go home, too. Let's go."
Therefore, this does not appear to be an attempt to
terminate questioning so much as an inquiry in response
to the detective's previous statement. Defendant
continues to respon[d] to the detectives' questioning,
albeit curtly, but the [c]ourt cannot conclude that this
amounted to an unambiguous or ambiguous attempt to
cut of[f] questioning.
Consequently, defendant's recorded statement, without any redaction, was
admitted in evidence and heard by the jury.
In addition to its Miranda ruling, the motion court granted defendant's
application for a Wade/Henderson hearing with respect to Reid's identification.
United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 308
(2011). However, a full hearing was not conducted as Reid was never called to
testify at trial.
At trial, the State introduced defendant's full recorded statement to the
police. While Reid was not called to testify, the jury heard Detective Nelson
refer to her in the abstract, stating to defendant, "You might have almost snuck
away with this one. But that good ol' witness right there on New Street. How
A-1013-22
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do you explain that?" On cross-examination of Nelson, defense counsel
attempted to elicit Reid's identification of the perpetrator as a man with "no
dreads." The State objected on hearsay grounds. Defense counsel explained he
was not offering Reid's statements to "prove that the shooter in fact didn't have
dreadlocks" but rather to demonstrate that Nelson was "put on notice, and he
[failed to] investigate anybody without dreadlocks." Ultimately, the trial court
sustained the State's objection. Neither was defense counsel permitted to
demonstrate how detectives attempted to rehabilitate Reid's description to
conform to her later positive identification.
In its closing argument, the State commented on defendant's silence at
various times during the interrogation, telling the jury that defendant "doesn’t
respond [to the detective's questions] because he knows the evidence is there.
He knows that you can see it with your own eyes."
After testimony and closing arguments, the trial court administered the
jury charge. Upon return of guilty verdicts on murder and weapons counts, the
court prepared the jury to deliberate on the certain-persons charge, instructing
the jury that defendant was guilty if: (1) "there was a weapon"; and (2) he
knowingly possessed "the weapon." Defendant stipulated to his two predicate
convictions for possession with intent to distribute within a 1,000 feet of school
A-1013-22
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property in violation of N.J.S.A. 2C:35-7(1). Notwithstanding this stipulation,
the court read aloud the charges for which defendant had been previously
convicted with specificity, rather than generically. In its closing remarks, the
State repeated the specified charges forming the basis of defendant's predicate
convictions.
Defendant was convicted on all four counts of the indictment. The trial
court sentenced defendant to an aggregate term of thirty-five years'
imprisonment, all to be served without eligibility for parole. Specifically, the
court merged the convictions for murder and possession of a weapon for
unlawful purpose. The court sentenced defendant to a thirty-year term for
murder concurrent to a ten-year term for the conviction for unlawful possession
of a weapon. The court also imposed a consecutive five-year term without
parole for the certain-persons conviction. The court denied the State's
application to impose an extended term sentence.
II.
Defendant advances five arguments on appeal.
POINT I
THE ADMISSION OF DEFENDANT'S POLICE
STATEMENT VIOLATED HIS RIGHTS AGAINST
SELF-INCRIMINATION AND TO DUE PROCESS.
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A. Defendant's Statement and Motion Court's
Decision
1. Defendant's Statement
2. Motion Court's Decision
B. Defendant Was in Custody Throughout the
Stationhouse Interrogation.
C. The Detectives Repeatedly Ignored
Defendant's Invocations of His Right to Silence.
D. Defendant's Miranda Waiver and Statement as
a Whole Were Not Voluntary.
E. The Erroneous Admission of Defendant's
Statement Was Not Harmless.
POINT II
THE TRIAL COURT DENIED DEFENDANT A FAIR
TRIAL BY FAILING TO REDACT OR CORRECT
SEVERAL INADMISSIBLE PORTIONS OF HIS
POLICE STATEMENT. (Partially Raised Below)
A. The Detectives' False Claims that a
NonTestifying Eyewitness "Picked" Defendant — and
the Trial Court’s Refusal to Permit Him to Impeach that
Identification — Violated His Confrontation Rights.
B. Permitting the Jury to Hear Defendant's
Multiple Invocations of His Right to Silence — and the
Prosecutor's Comments on His Silence — Denied Him
a Fair Trial.
C. The Detectives' Improper Lay Opinions — on
Defendant's Guilt, Credibility, Motive, Opportunity,
A-1013-22
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and Premeditation — Usurped the Jury's Exclusive
Role to Decide the Ultimate Issue.
POINT III
DEFENDANT'S CERTAIN-PERSONS
CONVICTION MUST BE REVERSED DUE TO
ERRONEOUS JURY INSTRUCTIONS AND
IMPROPER ARGUMENT. (Not Raised Below)
A. The Trial Court's Erroneous Jury Instructions
on Two Elements of the Certain-Persons Offense
Require Reversal.
B. The Trial Court's and Prosecutor's Disclosure
of the Nature of Defendant's Predicate Convictions
Denied Him a Fair Trial on the Certain-Persons Count.
POINT IV
THE CUMULATIVE EFFECT OF THE NUMEROUS
TRIAL ERRORS REQUIRES REVERSAL. (Not
Raised Below)
POINT V
DEFENDANT’S CONSECUTIVE SENTENCES
VIOLATE YARBOUGH AND REQUIRE A
RESENTENCING.
Defendant's Statement to Police
"[W]ith respect to legal determinations or conclusions reached on the
basis of the facts," our review is plenary. State v. Stas, 212 N.J. 37, 49 (2012)
(citing State v. Handy, 206 N.J. 39, 45 (2011)). By comparison, the trial court's
A-1013-22
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factual findings from the suppression hearing on defendant's self-incrimination
claims are reviewed under a deferential standard. See State v. Tillery, 238 N.J.
293, 314 (2019); State v. Hubbard, 222 N.J. 249, 262-65 (2015). Due to the
judge's "expertise in fulfilling the role of factfinder," this deference extends to
the judge's determinations when based on live, as well as video or documentary
evidence. State v. S.S., 229 N.J. 360, 364-65 (2017). We will not reject the trial
court's factual findings merely because we "disagree[] with the inferences drawn
and the evidence accepted by the trial [judge] or because [we] would have
reached a different conclusion." Id. at 374. Only if the judge's factual findings
are "so clearly mistaken that the interests of justice demand intervention and
correction" will we discard those factual findings. State v. Gamble, 218 N.J.
412, 425 (2014) (citation omitted).
When the judge's factual findings are "not supported by sufficient credible
evidence in the record," the reviewing court's deference ends. S.S., 229 N.J. at
381. Then, the court's interpretation of the law and "the consequences that flow
from established facts are not entitled to any special deference." Gamble, 218
N.J. at 425. Thus, "[w]hen faced with a [challenge to a] trial [judge]'s admission
of police-obtained statements, [we] engage in a 'searching and critical' review
of the record to ensure protection of a defendant's constitutional rights." State
A-1013-22
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v. Hreha, 217 N.J. 368, 381-82 (2014) (quoting State v. Pickles, 46 N.J. 542,
577 (1966)). "Subject to that caveat, [we] generally will defer to a trial court's
factual findings concerning the voluntariness of a confession that are based on
sufficient credible evidence in the record." State v. L.H., 239 N.J. 22, 47 (2019).
Defendant urges us to rule defendant's entire statement inadmissible. He
argues that in their interrogation, detectives contradicted the Miranda warnings,
affirmatively misled defendant about his suspect status, threatened his life, and
exploited his children.
[They] promised leniency, falsely urged [defendant] to
"help" himself, and fabricated eyewitness evidence.
They swore and shouted at him; called him a
"motherf***er"; and physically intimidated him by
pointing at him, leaning toward him, and slapping the
table. And they repeatedly ignored his invocations of
his right to silence and twice conditioned his freedom
on him cooperating. As a result of those
psychologically coercive tactics, [defendant's] Miranda
wavier and statement as a whole were involuntary and
should have been suppressed in full.
Having undertaken a "searching and critical" review of the record, we
cannot defer to the motion court's findings of fact or conclusions of law. Hreha,
217 N.J. at 381-82. We acknowledge in undertaking its analysis, the motion
court engaged in a thoughtful assessment of pertinent case law, beginning with
Miranda and its progeny. However, the motion court's premise in applying that
A-1013-22
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case law rested on a finding that defendant was not in custody until the last
minutes of the interrogation, a position that neither the State nor the defense
adopted at the Miranda hearing. That oversight irredeemably taints the motion
court's findings.
Here, the record establishes that defendant was in custody from the
inception of his confinement to a small interview room from which he did not
depart, apart from bathroom breaks upon request, over a seven -hour period.
Throughout questioning, detectives were seated by the single door to the
interview room. Although Detective Nelson characterized defendant as a
"person of interest," defendant was clearly more than that; he was a suspect.
During defendant's interrogation, detectives were at the ready with information
to challenge defendant's responses, leading to contradiction, equivocation, and
invocations of silence by defendant.
Detectives began the interrogation with a falsehood, telling defendant that
"Just like, you know, anybody else that come down here, we gotta read you your
rights and things like that." In the course of this very investigation, this
statement proved false, as for instance, Reid was not Mirandized. However, this
misrepresentation by itself does not render defendant's subsequent statements
less than voluntary. Although officers "should scrupulously avoid making
A-1013-22
21
comments that minimize the significance of the suspect's signature on that card
or form," Tillery, 238 N.J. at 319, the detective's first comment, that the Miranda
warnings were equivalent to a formality for all, could be overlooked as an
offhand remark that simply preceded the warnings that defendant said he
understood and waived. See State v. O.D.A.-C., 250 N.J. 408, 422 (2022)
(explaining that courts consider the totality of circumstances to decide whether
the State met its burden in proving validity of a waiver); State v. Cooper, 151
N.J. 326, 355 (1997) ("[M]isrepresentations alone are usually insufficient to
justify a determination of involuntariness or lack of knowledge.").
It is the combination of the detectives' repetitive, misleading statements
and actions that lead us to hold defendant's statement should not have been
admitted as evidence. For example, our review of the video record confirms that
in the course of interrogation, various detectives slammed the table, raised their
voices, and cursed at defendant.
Critically, detectives told defendant to "help [him]self" by answering their
questions. Detectives claimed, "I wanna help you. We all wanna help you." In
"trying to help [him]," detectives said they would treat defendant more leniently,
unlike "other people," meaning suspects. In State v. ex rel. A.S., our Supreme
Court held that "the interrogating officer violated a juvenile defendant's rights
A-1013-22
22
by telling her that answering questions 'would actually benefit her'—an assertion
at direct odds with the Miranda warning 'that anything she said in the interview
could be used against her in a court of law.'" 203 N.J. 131, 151 (2010).
Similarly, in State v. Puryear, the interrogating officer told the defendant "[t]he
only thing you can possibly do here is help yourself out. You cannot get yourself
in any more trouble than you're already in. You can only help yourself out here."
441 N.J. Super. 280, 288 (App. Div. 2015). We found the defendant's ensuing
statement inadmissible because the detective's representation had neutralized the
Miranda warning and the defendant therefore had not knowingly, intelligently,
and voluntarily waive his Miranda rights. Id. at 298-99.
It is well settled that "[a] police officer cannot directly contradict, out of
one side of his mouth, the Miranda warnings just given out of the other." Id. at
296-97 (quoting State v. Pillar, 359 N.J. Super. 249, 268 (App. Div. 2003)). For
example, "telling a defendant 'it would be worse' if he did not answer questions
contradicted the Miranda safeguards." Id. at 297. The courts in A.S. and
Puryear both held the defendants' statements inadmissible because the
interrogating officers had contradicted the Miranda warnings by misleading
defendants into believing their statements would help them and would not be
used against them. See id. at 298-99; A.S., 203 N.J. at 151 (holding that the
A-1013-22
23
detective telling the defendant that answering his questions would show that the
defendant was a "good person" contradicted the Miranda warnings).
However, in Pillar, where a defendant admitted to a crime based on the
interrogating officer's assurance that their conversation was off the record, we
observed that "a misrepresentation by police does not render a confession or
waiver involuntary unless the misrepresentation actually induced the
confession." 359 N.J. Super. at 269 (quoting Cooper, 151 N.J. at 355). "A court
may conclude that a defendant's confession was involuntary if interrogating
officers extended a promise so enticing as to induce that confession." L.H., 239
N.J. at 45 (quoting Hreha, 217 N.J. at 383). "[W]here a promise is likely to
'strip[] defendant of his "capacity for self-determination"' and actually induce
the incriminating statement, it is not voluntary." State v. Fletcher, 380 N.J.
Super. 80, 89 (App. Div. 2005) (quoting Pillar, 359 N.J. Super. at 272-73). As
Justice Albin explained in L.H., while certain lies told by interrogating officers
are tolerated, inducements to speak to law enforcement that include express or
implied assurances of leniency cannot be tolerated. Specifically, he stated:
Because a suspect will have a natural reluctance to
furnish details implicating himself in a crime, an
interrogating officer may attempt to dissipate this
reluctance and persuade the suspect to talk. One
permissible way is by appealing to the suspect's sense
of decency and urging him to tell the truth for his own
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24
sake. Our jurisprudence even gives officers leeway to
tell some lies during an interrogation.
Certain lies, however, may have the capacity to
overbear a suspect's will and to render a confession
involuntary. Thus, a police officer cannot directly or
by implication tell a suspect that his statements will not
be used against him because to do so is in clear
contravention of the Miranda warnings.
....
Other impermissible lies are false promises of leniency
that, under the totality of circumstances, have the
capacity to overbear a suspect's will. A free and
voluntary confession is not one extracted by threats or
violence, nor obtained by any direct or implied
promises, however slight, nor by the exertion of any
improper influence.
....
Under the totality-of-the-circumstances test, a promise
of leniency is one factor to be considered in
determining voluntariness. Courts have recognized that
the danger posed by promises of leniency is that such
promises in some cases may have the capacity to
overbear a suspect's will and produce unreliable— even
false—confessions. Some courts also take into account
an interrogator's minimization of the offense when
questioning the suspect as one factor in determining the
voluntariness of a confession.
[239 N.J. at 43-46 (citations and internal quotation
marks omitted).]
A-1013-22
25
Applying these controlling principles to defendant's contentions on
appeal, we conclude that the court erred by admitting into evidence defendant's
statement to police. The statement was obtained after the interrogating
detectives repeatedly told defendant that he could help himself by admitting his
role in the murder. These statements effectively "contradicted the Miranda
warnings provided to [defendant]: that anything [he] said in the interview could
be used against [him] in a court of law." A.S., 203 N.J. at 150.
Although defendant ultimately maintained his innocence, the detectives'
representations that defendant could help himself by talking to them combined
with prejudicial accusations of guilt, led to defendant both conceding
incriminating details and invoking silence—the latter also impermissibly shown
to the jury and referenced by the State in its closing argument. Ibid.; L.H., 239
N.J. at 43-46. Under these circumstances, the statement should not have been
admitted in evidence because the actions and statements of the detectives
rendered meaningless defendant's initial waiver of his Miranda rights.
And there are other problems with the interrogation, which, had we not
found as we do that the statement in its entirety should not have been admitted,
would have required numerous redactions of its recording.
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26
Well-established jurisprudence bars the admission into evidence of police
officers' opinions as to a defendant's "truthfulness [or] guilt." State v. C.W.H.,
465 N.J. Super. 574, 593-94 (App. Div. 2021) (citing State v. Tung, 460 N.J.
Super. 75, 101 (App. Div. 2019)). Such opinions by detectives are "particularly
prejudicial because [a] jury may be inclined to accord special respect to such a
witness" and give such testimony "almost determinative significance." Id. at
593 (citation omitted). Where police opinions are admitted via a recorded
interview, "[a]t a minimum" courts should instruct that the opinions "should not
be deemed testimony and may be considered only in the context of
understanding how the interrogation was conducted and how defendant
responded." State v. Cotto, 471 N.J. Super. 489, 540 (App. Div. 2022). The
record shows continuous accusations by interrogating detectives as to their
belief in defendant's guilt and his need to confess – all of which were played for
the jury. No curative limiting instruction was administered by the trial court.
Because we hold defendant's statement inadmissible in its entirety for
combined reasons, we have not specifically determined when defendant
definitively invoked his right to silence. Irrespective of our broader holding, the
recording of the interrogation contained extended pauses during defendant's
interrogation, lasting between thirty and ninety seconds, followed by detectives
A-1013-22
27
commenting on defendant's silence and urging him to say something. Even if
not permanent, those extended periods of silence during the interrogation should
have been redacted. Redaction is necessary because otherwise the jury may
draw "impermissible inferences" about the defendant’s guilt "that could
undermine a defendant's fundamental right to a fair trial." State v. Feaster, 156
N.J. 1, 76 (1998).
For all of those reasons, we are convinced the admission of the recording
of the police interrogation of defendant violated defendant's right against self -
incrimination and his due-process rights. Accordingly, we vacate the judgment
of conviction in its entirety.
In the interest of completeness, we address defendant's remaining
arguments to determine whether additional grounds for vacatur of the
convictions exist.
Certain-Persons Charge
Defendant argues and the State concedes the trial court erroneously
instructed the jury that defendant must be convicted if (1) "there was a weapon"
and (2) he knowingly possessed "the weapon." As correctly observed, the
certain-persons offense, N.J.S.A. 2C:39-7(b)(1), specifically proscribes
possession of a "firearm" for certain-persons. However, in conceding this point,
A-1013-22
28
the State maintains that defendant's failure to object to the charge at trial permits
an inference that the error was not prejudicial.
In reviewing jury instructions, our jurisprudence recognizes that
"[a]ppropriate and proper charges are essential for a fair trial.'" State v.
Reddish, 181 N.J. 553, 613 (2004) (quoting State v. Green, 86 N.J. 281, 287
(1981)). In determining whether a charge was proper, "portions of a charge
alleged to be erroneous cannot be dealt with in isolation but the charge should
be examined as a whole to determine its overall effect." State v. Wilbely, 63
N.J. 420, 422 (1973) (citing State v. Council, 49 N.J. 341 (1967)). Further, when
reviewing a jury instruction for plain error, "failure to object points up the fact
that experienced counsel did not consider that the use of the words detracted
from the clear meaning which the charge as a whole conveyed." Ibid.
Here, the trial court read the instruction for the certain-persons charge
using the terms weapon and firearm interchangeably as follows:
Count 4 charges the defendant with possession of a
firearm by a previously convicted person. You must
disregard completely your prior verdict and consider
anew the evidence previously admitted on possession
of a weapon.
....
In order for you to find the defendant guilty [of the
certain-persons offense], the State must prove each of
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29
the following elements beyond a reasonable doubt.
Number one, that there was a weapon. Number two,
that the defendant purchased, owned, possessed or
controlled the weapon on September 23rd, 2018.
....
So, a person who possesses a firearm must know or be
aware that he possesses it, and he must know what it is
that he possesses or controls, that it is a firearm.
....
A person may possess a firearm even though it was not
physically on his person at the time of arrest.
[(Emphases added).]
We consider the charge as a whole in relation to the wording of the certain-
persons offense as charged in the indictment, which reads:
MICHAEL T. WEATHERSBEE JR., having been
convicted of the crime of Possession with Intent of a
Controlled Dangerous Substance while within 1000
feet of a School, did purchase, own, possess or control
a handgun, contrary to the provisions of N.J.S.A.
2C:39-7(b)(l).
[(Emphasis added).]
From this, it is clear that to the jury the term "weapon" referred to
"firearm." In addition, the definition of a weapon entails a firearm: "'[w]eapon'
means 'anything readily capable of lethal use or of inflicting serious bodily
injury.'" N.J.S.A. 2C:39-1(r). Defendant's failure to raise this issue to the trial
A-1013-22
30
court further evidences that the use of the term weapon did not "detract[] from
the clear meaning which the charge as a whole conveyed." See Wilbely, 63 N.J.
at 422. Accordingly, we conclude that the trial court's use of the term "weapon"
in its certain-persons jury instructions do not require reversal of the certain -
persons offense under the plain error standard.
Defendant also argues for the first time on appeal that the trial court's
disclosure of the nature of defendant's predicate convictions to the jury, as
highlighted by the State in its closing, denied him a fair trial. The State contends
that defendant's failure to object permits an inference that the error was not
unduly prejudicial. R. 2:10-2.
Defendant stipulated to his two prior convictions for possession of a
controlled dangerous substance with intent to distribute within 1,000 feet of a
school, N.J.S.A. 2C:35-7, constituting predicate offenses under the certain-
persons statute, N.J.S.A. 2C:39-7(b)(1). Despite the stipulation, the trial court
specifically referenced the offenses and dates of defendant's convictions in its
final instructions. Compounding that error, the State highlighted defendant's
convictions with particularity in summation.
Regarding this issue, the Bailey Court held:
If a defendant chooses to stipulate, evidence of the
predicate offense is extremely limited: "[t]he most the
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31
jury needs to know is that the conviction admitted by
the defendant falls within the class of crimes that . . .
bar a convict from possessing a gun[.]" Old Chief v.
United States, 519 U.S. 172, 191–92 (1997). A
defendant who stipulates can therefore prevent the State
from presenting evidence of the name and nature of the
offense. Provided that the stipulation is a knowing and
voluntary waiver of rights, placed on the record in
defendant's presence, the prosecution is limited to
announcing to the jury that the defendant has
committed an offense that satisfies the statutory
predicate-offense element.
[State v. Bailey, 231 N.J. 474, 488 (2018) (citations
reformatted).]
The jury heard not only "that the conviction admitted by defendant falls
within the class of crimes" but needlessly learned the specific nature of the
crimes and the dates of the offenses in direct contravention of established case
law. See ibid. Thus, the trial court's and the State's specific references to
defendant's prior convictions constituted plain error, clearly capable of
producing an unjust result. The references to the predicate acts constitute an
independent basis to vacate the certain-persons conviction.
The State's Comments on Defendant's Silence
The State commented on defendant's extended silences during the
interrogation without a curative charge from the trial court. During summation,
the State said:
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32
You saw the defendant's statement, two-and-a-half
hours. He's asked directly by the detectives, "Did you
run because you heard gunshots?" He doesn't even
respond. He doesn't respond, because he knows the
evidence is there. He knows that you can see it with
your own eyes. He doesn't want to admit that this is
him. Don't worry about it; the evidence does that for
us.
It is well-established that "[o]ur state law privilege does not allow a
prosecutor to use at trial a defendant's silence when that silence arises 'at or near'
the time of arrest, during office interrogation, or while in police custody." State
v. Muhammad, 182 N.J. 551, 569 (2005). Defendant's extended periods of
silence during the interrogation and the detective's comments about them should
have been redacted. The State's comments on defendant's silence during its
summation compounded that error. Permitting the State in this instance to
comment as it did was unduly prejudicial and constituted plain error. R. 2:10-
2.
Limitation of Cross-Examination
As mentioned, through Detective Nelson's questioning during
interrogation, the jury heard of Reid's purported identification of defendant as
the perpetrator: "But that good ol' witness right there on New Street. How do
you explain that?" The jury heard a total of seven references by detectives
A-1013-22
33
during the interrogation in which Reid, directly or by inference, incriminated
defendant.
As defendant observes on appeal, "both the Confrontation Clause and the
hearsay rule are violated when, at trial, a police officer conveys, directly or by
inference, information from a non-testifying declarant to incriminate the
defendant in the crime charged." State v. Branch, 182 N.J. 338, 350-51 (2005)
("[A] police officer may not imply to the jury that he possesses superior
knowledge, outside the record, that incriminates the defendant."). Because " [a]
defendant exercises his right of confrontation through cross-examination,"
disallowing cross-examination on this point was another error that deprived
defendant of a fair trial. Id. at 348.
*
In sum, the court erred in admitting defendant's statement in evidence,
improperly curtailing defense counsel's cross-examination of Detective Nelson,
permitting the State to refer to defendant's silence, and improperly charging the
jury as to the certain-persons offense by referencing the predicate acts. As we
have held, some of these errors individually require vacatur of the convictions.
Collectively, they require it. See State v. Weaver, 219 N.J. 131, 161 (2014)
(applying the cumulative-error doctrine where the impact of multiple errors is
A-1013-22
34
not harmless). Therefore, we vacate the judgment of conviction and remand the
case for a new trial. Because we vacate the convictions, we do not address
defendant's argument regarding the sentence.
Vacated and remanded for further proceedings consistent with our
opinion. We do not retain jurisdiction.
A-1013-22
35
Case Information
- Court
- N.J. Super. Ct. App. Div.
- Decision Date
- March 6, 2025
- Status
- Precedential