SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5678-17

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERRY THOMAS,

Defendant-Appellant.

________________________

Argued March 1, 2021 – Decided May 24, 2021

Before Judges Rothstadt and Mayer.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 17-05-0491.

Margaret McLane, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Margaret McLane, of 

counsel and on the briefs).

Mark Niedziela, Assistant Prosecutor, argued the cause 

for respondent (Camelia M. Valdes, Passaic County 

Prosecutor, attorney; Mark Niedziela, of counsel and on 

the brief).

Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE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.
2

A-5678-17

PER CURIAM

After the trial judge denied defendant Gerry Thomas's motion to suppress 

his second custodial statement to police, a jury found defendant guilty of two 

counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); one count of 

second-degree arson, N.J.S.A. 2C:17-1(a)(1) and (a)(2); and, one count of firstdegree attempted robbery, N.J.S.A. 2C:5-1(a)(3), N.J.S.A. 2C:15-1(a)(1). The 

convictions arose from defendant's alleged participation in a robbery that 

resulted in the murder of two victims and the destruction of their remains 

through the torching of the car in which they were killed. After his convictions, 

the trial judge sentenced defendant to an aggregate term of eighty years subject

to a period of parole ineligibility under the No Early Release Act, N.J.S.A. 

2C:43-7.2.

Defendant appeals from his conviction and sentence and argues the 

following points:

POINT I

DEFENDANT'S SECOND STATEMENT WAS 

TAKEN IN VIOLATION OF HIS RIGHT AGAINST 

SELF-INCRIMINATION, WAS INVOLUNTARY, 

AND WAS UNRELIABLE. THE TRIAL COURT 

ERRED IN DENYING THE MOTION TO SUPPRESS 

HIS STATEMENT.
3

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POINT II

THE MOTION FOR A JUDGMENT OF ACQUITTAL 

ON ATTEMPTED ROBBERY SHOULD HAVE 

BEEN GRANTED BECAUSE THE STATE FAILED 

TO PRESENT ANY EVIDENCE THAT 

DEFENDANT INTENDED HIS CO-DEFENDANT 

TO COMMIT A ROBBERY OR THAT THE CODEFENDANT ACTUALLY COMMITTED AN 

ATTEMPTED ROBBERY.

POINT III

THE JURY INSTRUCTIONS INCORRECTLY 

FAILED TO SPECIFY THAT THE JURY HAD TO 

UNANIMOUSLY AGREE ON THE VICTIM OF THE 

ATTEMPTED ROBBERY. THE ATTEMPTED 

ROBBERY AND FELONY MURDER CHARGES 

MUST BE REVERSED. (NOT RAISED BELOW).

POINT IV

THE FAILURE TO INSTRUCT THE JURY ON AN 

ELEMENT OF FELONY MURDER AND TO 

TAILOR THE FELONY MURDER INSTRUCTIONS 

TO THE UNUSUAL FACTS OF THIS CASE 

REQUIRES REVERSAL OF THE FELONY 

MURDER CONVICTIONS. (NOT RAISED 

BELOW).

POINT V

DEFENDANT'S CONVICTIONS MUST BE 

REVERSED BECAUSE THE JURY HAD 

UNRESTRICTED ACCESS TO THE COMPILATION

OF SURVEILLANCE VIDEOS IN THE JURY 

ROOM. (NOT RAISED BELOW).
4

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POINT VI

THE DEFENDANT'S AGGREGATE SENTENCE OF 

EIGHTY YEARS WITH AN 85% PAROLE 

DISQUALIFIER IS MANIFESTLY EXCESSIVE 

AND DISPARATE WITH THE CONCURRENT 

EIGHTEEN-YEAR SENTENCE IMPOSED ON THE 

CO-DEFENDANT.

POINT [VII]

1

[DEFENDANT'S] SIXTH AMENDMENT RIGHT 

UNDER THE UNITED STATES CONSTITUTION 

AND ARTICLE I PAR. 10 OF THE NEW JERSEY 

STATE CONSTITUTION WAS VIOLATED 

BECAUSE TRIAL COUNSEL RENDERED 

INEFFECTIVE [ASSISTANCE] OF COUNSEL FOR 

HIS DUAL REPRESENTATION SERVING AS THE 

VICTIM'S FAMILY [ATTORNEY] AS WELL AS 

THE DEFENDANT['S ATTORNEY]. (NOT RAISED 

BELOW).

We conclude that the trial judge erred by denying defendant's motion to 

suppress his second statement to the police because during their second 

interrogation of defendant they repeatedly implied that he could avoid being 

charged with the subject murders if he responded to their questions. For that 

reason, we reverse the motion's denial, vacate defendant's convictions, and 

remand for a new trial.

1

 For clarity, we renumbered this last point, which defendant raised in a pro se 

supplemental brief.
5

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I.

In response to defendant's motion, the trial judge held a Miranda2 hearing 

over three days at which two of the Paterson Police Department detectives who 

took his statements, Richard Martinez and Steven Leishman, testified about the 

interviews. Detective Sabrina McKoy with the Passaic County Prosecutor's 

Office also testified as to a letter her office received from defendant while he

was in jail awaiting trial. The facts developed at that hearing are summarized 

as follows.

The Paterson Police Department became interested in defendant's codefendant, Clarence Williams, on March 10, 2017, after an individual reported 

that he had been the victim in an unrelated robbery. Police identified Williams 

as a suspect for that robbery, and sometime between March 10 and March 17, 

2017, they charged Williams with robbery and weapons offenses and issued a 

warrant for his arrest.

On March 17, 2017, two bodies were discovered inside a burned parked 

car in Paterson. Phone records disclosed that Williams had exchanged multiple 

phone calls with one of the victims just prior to the time of the homicides. As a 

2

 Miranda v. Arizona, 384 U.S. 436 (1966).
6

A-5678-17

result, Williams became a suspect in the murders. Using information from the 

cell phone, law enforcement was able to locate Williams. 

On March 20, 2017, police officers executed the warrant for Williams by 

forcibly entering his house. When they entered the home, Williams was in the 

living room and defendant was in a bedroom. Officers handcuffed both men and 

drove them to the detective bureau in separate police cars.

Upon arrival at the bureau, defendant and Williams were placed in 

separate interrogation rooms; Martinez and Detective Bermudez first 

interviewed defendant, and Sergeant Abdelmonin Hamdeh and Leishman 

interviewed Williams. After defendant was placed inside the interview room, 

its door was closed and defendant remained seated and unrestrained. 

Martinez read defendant his Miranda rights and defendant verbally

indicated he understood them. Defendant also signed the form acknowledging 

he understood his rights, and that he wanted to waive them by speaking to the 

police. Martinez believed defendant understood the situation and he observed 

that defendant was coherent, answered questions appropriately, and did not 

appear intoxicated.

Defendant was then read the waiver portion of the Miranda form and asked 

by Martinez "Do you want to talk about the incident?" Defendant responded by 
7

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asking "What incident" and was told by Martinez it involved "a boy['s] . . .

dispute with somebody outside their house." 

Later in the interrogation, Bermudez stated that the detectives had 

"something else [they] want[ed] to talk about, but you understand these rights, 

right? The second portion, too, that nobody's made threats or anything about 

any threats or used any force against you?" With that, the following exchange 

occurred:

[DEFENDANT]: So, waive my right to mean 

what? 

DETECTIVE MARTINEZ: We've got to talk 

about something. Another incident that happened. 

[DEFENDANT]: All right.

DETECTIVE MARTINEZ: Well, you want to 

talk? You want to talk? I mean, sign or (indiscernible). 

[DEFENDANT]: What did that—

what did it mean, though? 

DETECTIVE MARTINEZ: That you're agreeing 

to talk and nobody has used force or pressure against 

you. 

[DEFENDANT]: Yeah.
8

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The detective began to question defendant and eventually addressed the 

subject incident. Defendant indicated that he did not know what the detective 

was talking about and denied being in the location that the detectives described. 

Later in the interview, Hamdeh joined the session and told defendant that 

Williams implicated defendant in the crime, which Hamdeh described as two 

robberies. Martinez knew that information to be false, but they confronted him 

with that as part of their "tactics used during interrogations." Defendant 

continued to deny any involvement. 

After the interrogation, defendant was permitted to leave the detective 

bureau and no charges were filed against him at that time. However, the officers 

retained defendant's cell phone.

In the meantime, Leishman interrogated Williams. After that 

interrogation, Leishman also reviewed surveillance videos that had been 

obtained during the homicide investigation and identified defendant as "a person 

of interest" from those videos. One surveillance video was from a Walgreens 

near the crime scene. The police were interested in that Walgreens because a 

witness found a receipt near the crime scene that showed lighter fluid had been 

purchased from that store. The video depicted a very tall man who Leishman

believed was defendant based on his height. As Martinez explained, the 
9

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detectives could not identify the faces of the individuals, but the difference in 

their "physical stature" was significant. 

Defendant returned to police headquarters later the same day to retrieve 

his cell phone. When he did, the detectives detained him and Leishman and 

Hamdeh conducted a second interview, which started at about 8:50 p.m. and 

lasted about two hours. During the interview, defendant was again not 

handcuffed and had not yet been charged with any offenses. 

Defendant was read his Miranda rights a second time. He again signed 

the Miranda waiver, but did not verbally respond to the detective's oral request

for confirmation that he knew his rights and wanted to speak without an attorney. 

At the start of the second interrogation, the following exchange between 

the detectives3and defendant occurred:

[SERGEANT HAMDEH]: My name is Sergeant 

Hamdeh and this is Detective Leishman, I don't know 

if you remember from earlier.

[DETECTIVE LEISHMAN]: So you were here 

earlier and (unintelligible) went through this whole 

formality we're just going to do it one more time alright, 

so today is March 20th at 8:52 p.m. Before we ask you 

any questions you must understand your rights. You 

have the right to remain silent anything you say can be 

3

 The transcripts provided do not reflect which detective is speaking at which 

time. The following is based on the transcripts provided, as supplemented by 

our review of the taped interrogation. 
10 A-5678-17

used against you in a court of law. You have the right 

to talk to a lawyer for advice before we ask you any 

questions. Also you have the right to have a lawyer 

with you during any questioning. If you cannot pay for 

the services of a lawyer, a lawyer will be appointed to 

represent you without cost before any interrogation. If 

you decide to answer questions now without a lawyer 

present you will still have the right to stop answering 

questions at any time you also have the right to stop 

answering at any time until you talk to a lawyer, you 

understand that?

[DEFENDANT]: (Unintelligible) . . . all over 

again.

[DETECTIVE LEISHMAN]: Listen we just 

have to go through this before we talk to you.

[SERGEANT HAMDEH]: You're not in trouble. 

You walked out earlier right?

[(Emphasis added).]

As Hamdeh was telling defendant that he was not in trouble, Leishman

slid the Miranda rights waiver form over to defendant. Defendant then signed 

the waiver form. After defendant signed the form, Leishman asked him to 

confirm that he knew what it meant:

[DETECTIVE LEISHMAN]: You know what 

this says right? You signed it already, but the waiver 

of rights. I have read or been read my rights and I 

understand what my rights are. I am willing to make a 

statement and answer questions. I do not want a lawyer 

at this time. I understand and know what I'm doing. No 

promises or threats have been made to me and nobody 
11 A-5678-17

has used pressure or force of any kind against me. 

Right, you agree you already signed it so you [sic] 

gonna talk to us again?

Defendant did not respond, as he just sat with his chin resting on his hands 

on the table. Hamdeh then immediately asked defendant, "What's your last name 

brother," and defendant responded "Thomas." 

During the ensuing interrogation, the detectives told defendant that they 

had video of him entering a Walgreens at 1:30 a.m. wearing a black trench coat 

similar to a coat they recovered from Williams' house where defendant had been 

staying. Defendant acknowledged that he had always shopped at Walgreens and 

had been there that week but initially denied being there at that time or owning 

a trench coat.

They also told defendant that his height and "distinctive walk" made it 

clear to them that it was defendant in the video, and that a video of the crime 

scene showed him walking up to the car and lighting it on fire. In response to 

defendant denying any involvement, the following exchange occurred, during 

which Hamdeh raised his voice:

[SERGEANT HAMDEH]: I GOT VIDEO MAN, 

I GOT VIDEO, you're not telling me the God's honest 

truth.

[DEFENDANT]: Sir I wasn't . . .
12 A-5678-17

[SERGEANT HAMDEH]: You're not telling me 

the God's honest truth, you're lying to me.

[DEFENDANT]: Sir I don't even own a black 

trench coat sir.

[SERGEANT HAMDEH]: I got, I got video. I 

got video. 

. . . .

[DETECTIVE LEISHMAN]: He doesn't 

understand that I pretty much got that video. We 

watched that video and if you were walking next to me 

people are gonna go "goddam that guy is tall."

During the following later exchange, for the first time, the detectives 

advised defendant that two people were killed during the incident:

[DETECTIVE LEISHMAN]: I got news for you, 

you're caught up in a lot of nonsense because there's a 

few of you. And you know what happen when a bunch 

of guys do something together, somebody talks. And 

they put it on another person. Listen, you can sit here 

and lie. I'm not going through that. . . . I got videos 

right here that says you're lying.

[DEFENDANT]: I'm not denying I was in 

Walgreens but I didn't have nothing to do with 

nothing. . . . I don't even know what happened.

[DETECTIVE LEISHMAN]: Two people got 

killed. . . . Why did we have to tell you that? You really 

think we don't know you were there?

[DEFENDANT]: I wasn't there sir.
13 A-5678-17

[DETECTIVE LEISHMAN]: You're there on the 

videos.

[DEFENDANT]: In Walgreens? Sir they got 

killed in Walgreens?

[DETECTIVE LEISHMAN]: Let's not play 

stupid here. We know they were in a car. It's been all 

over the news for the last three days. You're on video 

walking right up to that car. . . . The car where two 

people got killed in.

[DEFENDANT]: Nah.

[DETECTIVE LEISHMAN]: And lit it on fire.

[DEFENDANT]: Impossible.

The detectives also advised defendant that Williams implicated him, and 

told defendant he needed to "get out in front of this."

[DETECTIVE LEISHMAN]: I can honestly tell 

you this you gotta get out in front of this because this is 

big. [Williams] did a lot of talking today. We just left 

here at 8 o'clock and now we're back again cause you 

showed up. We were actually gonna come back and get 

you tomorrow cause we needed to talk to you. But 

since you showed up but . . . 

[DEFENDANT]: Cause I know I didn't do 

anything wrong sir.

[DETECTIVE LEISHMAN]: That's not what 

[Williams] said.

[DEFENDANT]: Well he lying [sic] to ya. He 

probably want [sic] sir come on sir. If [Williams] did 
14 A-5678-17

that, if he said I did something wrong, you guys 

wouldn't even released me earlier.

[DETECTIVE LEISHMAN]: When [Williams] 

told us all the stuff that happened we went and looked 

at all the videos that we've been pulling from the past 

three four days and sure enough we're able to 

corroborate a lot of stuff he told us and then boom here's 

a guy towering over everybody walking, wearing the 

clothes that we recovered from your apartment.

During the interrogation, the detectives also made statements to defendant 

about the possibility of him being charged with the murders and robberies, even 

though they knew he played a "minimal role." While making these statements, 

they again told defendant he had to "get ahead" of the situation. Those 

statements included the following:

[DETECTIVE LEISHMAN]: You're gonna end 

up wearing all these charges when you might of just had 

a minimal role in this whole thing.

[DEFENDANT]: Minimal role in what though 

sir? I don't even know what's going on. I wouldn't even 

be here sir. I'm too smarter [sic] than that. I wouldn't 

even be here sir.

[DETECTIVE LEISHMAN]: Why do you think 

you're sitting here talking to us about this? Do you 

think we just picked you out? All day we been [sic] 

here watching video after you left and we said holy shit 

he was just here.

[SERGEANT HAMDEH]: Yeah we were 

kicking ourself [sic] in the ass because we let you go.
15 A-5678-17

A short time later, as defendant continued to deny any involvement, the 

detectives warned defendant again:

[DETECTIVE LEISHMAN]: But this is your 

opportunity to get in front of it because you may not 

have pulled the trigger but you can go to jail just as long 

as the guy who did. 

[SERGEANT HAMDEH]: How about this, how 

about this, I know you didn't pull the trigger. Listen, 

listen to me, I know you didn't pull the trigger. . . . 

Hear me out. . . . I know you didn't pull the trigger 

because I got video. You understand that? I know that. 

I know you didn't do that. But I know you were there.

[DEFENDANT]: Sir I wasn't there.

[SERGEANT HAMDEH]: Hear me out. I know 

you were there. I know you were there.

[DEFENDANT]: I need to see those videos 

cause I was never on no 14th Ave. 

[SERGEANT HAMDEH]: When you put all the 

pieces together . . . you're gonna be screwed if you 

don't fucking get ahead of this.

[(Emphasis added).]

Later, the detectives again warned defendant about getting "in front" of 

the charges: 

[DETECTIVE LEISHMAN]: The story you're 

gonna go with right now, how do you think that's gonna 

appear in court with a jury?
16 A-5678-17

[DEFENDANT]: Let the jury decide.

[DETECTIVE LEISHMAN]: If you do that 

buddy you're never gonna see the light of day, two 

bodies.

[DEFENDANT]: I don't got nothing to do with 

no two bodies sir.

[DETECTIVE LEISHMAN]: We're not saying 

you're the one that did it, but we know you were there 

with the people that did it [sic] we know you went there 

with the people that did it. We know your phone is 

calling the guy that did it.

[SERGEANT HAMDEH]: Unfortunately . . . 

you might as well been the person that did it. Okay if 

that's the case unless you get in front of this and help 

yourself, you might as well been the person that shot 

the bullet. No, no, hear me out. You might as well been 

the person who did it unless you get in front of this. 

Cause if you don't get in front of this you're just as 

guilty. You understand?

[DEFENDANT]: Can I just see the videos?

[SERGEANT HAMDEH]: No, no listen you're 

just as guilty and believe me believe me phone records 

don't lie. No, no, hear me out phone records don't lie.

[(Emphasis added).]

Hamdeh also told him that he was implicated in the crimes because of his 

presence on the videos, but that he could "minimize [his] damage." Leishman 

also told defendant that "[t]he problem here is you're on video. You're with 
17 A-5678-17

them . . . whether or not you pulled the trigger doesn't mean anything because 

everybody is going to get charged with that. Whoever wants to cooperate?" and 

"we're gonna walk outta this room and you're gonna get hit with both of them." 

(Emphasis added). 

Although, as noted, defendant initially denied being with Williams that 

night and said that he did not know what happened because he was not there,

after the detectives reiterated they had video of him at the scene and that 

Williams implicated him, he eventually stated that "I wasn't there when nobody 

shot nobody, nobody, burned nobody. I wasn't present sir." When the detectives 

responded by stating "You were present at the Walgreens when the igniter fluid 

was bought to go back there and torch the car," defendant admitted that he had 

been in a minivan driven by Williams and there were one or two other men in 

the vehicle, but he was only there before and after the homicides took place. 

Defendant ultimately admitted that he had been at the Walgreens but 

denied that he purchased lighter fluid or had anything to do with setting a fire 

or otherwise being involved with a crime. When the detectives asked him if he 

knew the names of the people who were there, defendant said he only knew 

Williams, and repeated that he did not know who pulled the trigger because he 

was not there when anyone was shot.
18 A-5678-17

Significantly, the detectives again told defendant if he "wanted to help 

[himself] out" he would need to "start from the beginning," and tell them the 

names of people that were present in the van. They also told him that "[saying] 

I don't know, I don’t know, that's not helping you." Defendant only reiterated 

that when he got in the van there were three other people and that one was 

Williams, but he did not know the others. However, he eventually told the 

detectives that one of the other men in the van was someone known as 

"Masterborn." 

Defendant also told the detectives he kept calling Williams that night 

because he wanted to buy marijuana from him. He claimed that Williams told 

him where he was, and defendant realized he was nearby, which was when and 

why defendant got into the van.

Defendant claimed he later asked Williams to let him out of the van 

because defendant was concerned that Williams and the others were planning on 

"bust[ing] a custy,"4and he did not want to be involved in light of his own prior 

criminal history. According to defendant, he was eventually dropped off and 

then went to the Walgreens. He then explained that outside of Walgreens, he 

4

 At trial, Leishman explained that this term meant "they were going to rob a 

customer." 
19 A-5678-17

gave a dollar to a boy whom the detective stated bought the lighter fluid.

Defendant then again maintained he was not involved in the commission of any 

crime. When defendant repeatedly stated that none of the vehicle's occupants 

told him anything about a shooting, the detective responded by telling defendant 

he was not "helping [him]self." 

The detectives also told defendant that another video showed him wiping 

prints off the white car, and defendant denied doing so.

5

 When the detectives

again asked for the identities of the other men with Williams that night, 

defendant expressed that they were not known to him. The detective told 

defendant that by not identifying the others, defendant was "not giving [them] 

the information [they] need for [defendant] to help [him]self out," and that 

"[t]here's only one thing right now that's gonna help you with anything and that's 

telling us who the other guys were." 

Defendant responded that even if he knew their names, the detectives were 

not letting him go because they suspected he wiped the prints from the car. In 

response, Hamdeh told him to think about going to trial and how things would 

5

 This video did not clearly depict the faces of the individuals shown in the 

footage so the detectives again relied on defendant's height. 
20 A-5678-17

"play out" if he cooperated, rather than what would happen if he continued 

denying his involvement. 

After stepping out of the room, the detectives returned and Hamdeh told 

defendant that the interview was "about over, unless you want to give us 

anything else that could help you." Defendant asked what he could do in order 

to walk out of there and Hamdeh told him that was "not happening," but "if you 

want to help yourself in the future you could tell us something." Defendant then 

asked, "Can you please just give me a chance to talk, please sir," and whether 

there was "nothing I could say, there's nothing I could do to get me outta here 

right now?" The detective responded, "Nah, not gonna lie to you cause I haven't 

lied to you these past two hours I haven't lied to you." 

In the trial judge's ensuing written decision finding the statement 

admissible, he found that defendant's "'freedom of action' was sufficiently 

deprived to show that he was in custody," even though he was "not under formal 

arrest or in physical restraints." He also found that although Hamdeh6"certainly 

did not seek to highlight the significance of the second round of questioning," 

the detective's characterization of executing the Miranda rights as a "'formality' 

6

 Both defendant and the trial judge attributed the "formality" comment to 

Hamdeh, although from the video it appears that Leishman said it. For reasons 

explained below, it is of no moment who made the comment. 
21 A-5678-17

was not tantamount to a deprivation of a knowing conveyance of Miranda

warnings." Citing defendant's prior record of eight arrests, "one indictable 

conviction, three disorderly persons and one municipal ordinance conviction," 

the judge concluded that defendant was "familiar with the justice system." The 

judge acknowledged that, even though it is not known whether defendant was 

advised of his rights during the prior arrests, "his rights were undoubtedly 

discussed during prior court proceedings associated with those arrests." 

The judge also found that the questioning of defendant in this matter was 

"not prolonged in view of underlying events." Additionally, although the police 

"raised their voices at times during the second interrogation," the judge "did not 

observe anything approaching physical or mental exhaustion on [defendant's] 

part or any other behavior to suggest that his will was overborne." He found 

that the police "raised their voices out of frustration out of apparent 

contradiction or omission by" defendant, and that "the heated discussion that 

followed was of an emotionally charged nature indicative of the seriousness of 

the matter under discussion." The judge did not find that defendant appeared 

intimidated and he still "insisted on conveying his own version of events" while 

"in the face of heightened emotions." Consequently, the judge found beyond a 

reasonable doubt that defendant knowingly, intelligently, and voluntarily 
22 A-5678-17

waived his Miranda rights prior to making the statement. The judge also found 

that defendant's letter to the prosecutor was admissible. 

II.

A.

Our review of a trial judge's findings at an evidentiary hearing or trial is 

deferential. See State v. Tillery, 238 N.J. 293, 314 (2019); State v. Hubbard, 

222 N.J. 249, 262-65 (2015). Nevertheless, "[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 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). This deference extends to a judge's 

determinations based not only on live testimony but also when based on the 

review of video or documentary evidence because of the judge's "expertise in 

fulfilling the role of factfinder." State v. S.S., 229 N.J. 360, 364-65, 379-80

(2017).
23 A-5678-17

We will not reject the trial judge'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). 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 361. Then, the trial judge'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.

B.

With these guiding principles in mind, we turn to defendant's contentions

on appeal that he did not knowingly and voluntarily waive his rights because the 

detective "hastily recited the rights," presented them as a formality, and 

minimized the importance of the warnings by telling him he was not in trouble 

and pointing out that he had been able to leave the police station earlier that day.

He additionally contends that the detectives' conduct "induced" him into waiving 

his rights and that they deprived him of important information "relating to the 

nature of the allegations against him," since the detectives had watched the 
24 A-5678-17

surveillance videos and believed defendant was involved in a crime but told him 

he was not in trouble.

Defendant further argues that he did not voluntarily give his statement 

because the police coerced him. He asserts that the detectives repeatedly yelled 

at him that they had video proof he was involved in the murders, that they 

misrepresented the videos because it was impossible to identify "anyone from 

the surveillance videos," and that the detectives lied that Williams told the 

detectives that defendant was involved in the murders. Based on those 

representations, defendant claims that the detectives "contradicted the Miranda 

warnings" by telling him that he had to confess "his full involvement in these 

offenses" in order to avoid facing murder charges.

We conclude that although, as the trial judge found, the detectives 

properly administered Miranda warnings, which defendant understood and 

acknowledged,

7

the combination of the detectives' repetitive misleading 

7

 While, as defendant argues, it is true officers "should scrupulously avoid 

making 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 just "a formality," can be overlooked as an offhand 

remark that simply preceded the warnings defendant said he understood and 

waived. It is the rest of the statements the officers made that we view as 

impermissible. See State v. O.D.A.-C., No. A-2932-18, (App. Div. Feb. 8, 2021)

(slip op. at 13) (explaining that the detective's characterization of Miranda
25 A-5678-17

statements telling defendant that talking to them would, in contravention of the

Miranda warnings, help defendant, the detectives improperly induced defendant 

to give incriminating information in contravention of his Fifth Amendment 

rights. As such, we conclude that his statement should not have been admitted 

as evidence. 

"The right against self-incrimination . . . guaranteed by the Fifth 

Amendment to the United States Constitution and this state's common law, [is] 

now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503." 

S.S., 229 N.J. at 381-82. The importance of that right cannot be overstated. As 

Justice Albin stated in L.H., "[n]o piece of evidence may have greater sway over 

a jury than a defendant's confession. For that reason, it is of critical importance 

that law enforcement officers use interrogation techniques that will elicit 

confessions by lawful means." 239 N.J. at 27.

A defendant may waive his Fifth Amendment rights so long as the waiver 

is made knowingly, intelligently, and voluntarily. State v. Sims, 466 N.J. Super. 

346, 363 (App. Div. 2021) (citing Miranda, 384 U.S. at 444), certif. granted, __ 

warnings as a formality was not by itself a problem but all of his statements had 

to be viewed in context); 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."). 
26 A-5678-17

N.J. __ (2021)(slip op. at 1). Before a defendant's custodial statement may be 

admissible, the State must "'prove beyond a reasonable doubt that the suspect's 

waiver [of rights] was knowing, intelligent, and voluntary.'" Ibid. (alteration in 

original) (quoting State v. A.M., 237 N.J. 384, 397 (2019)). 

When determining whether "the State has satisfied its burden," a court 

must consider the "totality of the circumstances," which includes "factors such 

as the defendant's age, education and intelligence, advice as to constitutional 

rights, length of detention, whether the questioning was repeated and prolonged 

in nature and whether physical punishment or mental exhaustion was involved." 

Ibid. (quoting A.M., 237 N.J. at 397). Additionally, a court may consider the 

defendant's "previous encounters with law enforcement," State v. Knight, 183 

N.J. 449, 463 (2005) (citing State v. Presha, 163 N.J. 304, 313 (2000)), and the 

"period of time between 'administration of the [Miranda] warnings and the 

volunteered statement.'" Ibid. (alteration in original) (quoting State v. 

Timmendequas, 151 N.J. 515, 614 (1999)). The evidence must establish that the 

statement was given voluntarily and "not . . . because the defendant's will was 

overborne." L.H., 239 N.J.at 42 (quoting Knight, 183 N.J. at 462). 

Our Court has explained that "[t]o eliminate questions about a suspect's 

understanding, the entire Miranda form should be read aloud to a suspect being 
27 A-5678-17

interrogated, or the suspect should be asked to read the entire form aloud," and 

to the extent that is not done, "the suspect should be asked about his or her 

literacy and educational background." A.M., 237 N.J. at 400. In determining 

whether a waiver has occurred, "[t]he criterion is not solely the language 

employed but a combination of that articulation and the surrounding facts and 

circumstances." State v. Kremens, 52 N.J. 303, 311 (1968). The focus of a 

Miranda analysis should be on whether the defendant had a clear understanding 

and comprehension of his or her Miranda rights based on the totality of the 

circumstances. State v. Puryear, 441 N.J. Super. 280, 297 (App. Div. 2015)

(citing State v. Nyhammer, 197 N.J. 383, 402 (2009)). 

"Where the prosecution shows that a Miranda warning was given and that 

it was understood by the accused, an accused's uncoerced statement establishes 

an implied waiver of the right to remain silent." Tillery, 238 N.J. at 316 (quoting

Berghuis v. Thompkins, 560 U.S. 370, 384 (2010)). However, a defendant

signing a waiver of his rights, which were read to him prior to being questioned, 

cannot be accepted as evidence of a waiver where the interrogating officer 

"minimize[s] the significance of the suspect's signature on that card or form." 

Id. at 319 (concluding that a defendant's signature to a waiver form that only 
28 A-5678-17

acknowledged his rights were read to him did not establish a waiver of his 

rights). 

For example,"[i]n [State ex rel. A.S.], the interrogating officer violated a 

juvenile defendant's rights 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.'"

L.H., 239 N.J. at 44 (quoting State ex rel. A.S., 203 N.J. 131, 151 (2010)). 

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

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

more trouble than you're already in. You can only help yourself out here." 441 

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

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

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

his Miranda rights. Id. at 298-99. 

As we observed in that case, "[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 (first quoting State v. Pillar, 359 N.J. Super. 249, 268 (App. Div. 

2003); then citing United States v. Ramirez, 991 F. Supp. 2d 1258, 1269-70 
29 A-5678-17

(S.D. Fla. 2014) (telling a defendant if he or she did not answer questions "it 

would be worse" contradicted the Miranda safeguards)). 

The courts in A.S. and Puryear both held the defendants' statements 

inadmissible because the interrogating officers had contradicted the Miranda

warnings by misleading the defendants into believing their statements would 

help them and would not be used against them. Id. at 298-99; A.S., 203 N.J. at 

151 (holding that the 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 State v. Cooper, 151 N.J. 326, 355 

(1997)).

"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"'
30 A-5678-17

and actually induce the incriminating statement, it is not voluntary." Ibid.

(quoting State v. Fletcher, 380 N.J. Super. 80, 89 (App. Div. 2005)).

As Justice Albin also 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 the following:

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 

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. . . . 

. . . . 
31 A-5678-17

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.

[L.H., 239 N.J. at 43-46 (internal quotation marks, 

alterations, and citations omitted).] 

Applying these controlling principles to defendant's contentions on 

appeal, we conclude that the trial judge erred by denying defendant's motion to 

suppress his second statement to police. The statement was obtained after the 

interrogating detectives repeatedly and persistently told defendant that the only 

way he could help himself was by admitting his role in the subject robberies and 

murders. 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 maintained that he had nothing to do with the crimes 

despite the officers' representations, because of the officers' assurances that he 

could help himself by talking to them, defendant placed himself with his 

codefendant in the vehicle, neighborhood, and store the police had connected to 
32 A-5678-17

the crimes. Under these circumstances, the statement should not have been 

admitted.

While the trial judge engaged in a detailed analysis of the circumstances, 

he overlooked the detectives' false promises to defendant. While on one hand, 

they told defendant he was not in trouble, on the other they falsely told defendant

that he could help himself if he gave a statement, which directly negated the 

Miranda warnings and induced defendant to supply incriminating information. 

This information included verification that he was at Walgreens and in the van 

with Williams and others on the night in question. As we have explained, a 

detective cannot in one breath provide Miranda warnings to a suspect, including 

the vitally significant fact that anything the suspect says can and will be used 

against him in a court of law, and in the next, make repeated assurances that 

speaking with the police will ultimately help that suspect in the same court of 

law. Puryear, 441 N.J. Super. at 296-97. 

The assurances from the detectives that defendant could help himself by 

talking presented an overwhelming enticement to supply incriminating 

information, with the hope, as defendant stated, he would be released. As such, 

the detectives' assurances "clearly had the likelihood of stripping defendant of

his 'capacity for self-determination.'" Pillar, 359 N.J. Super. at 272-73 (quoting 
33 A-5678-17

Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973)). These circumstances

thereby require the conclusion that the State failed to establish defendant's 

statement was voluntary beyond a reasonable doubt. See id. at 273.

Because our determination that defendant's statement to police was 

inadmissible requires us to vacate his convictions and remand for a new trial, 

we need not address defendant's remaining contentions about the trial judge's 

instructions to the jury, his denial of the motion to acquit, defendant's allegation 

of ineffective assistance of counsel, or defendant's sentence.

The denial of defendant's suppression motion is reversed, his judgment of 

conviction is vacated, and the matter is remanded for a new trial.

Reversed and remanded for further proceedings consistent with our 

opinion. We do not retain jurisdiction.