SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2182-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAURIE WINT a/k/a LAURIE A.

WINT, JR., LAURIE

AINSWORTH WINT, LANCE,

Defendant-Appellant.

_________________________________

Argued May 30, 2017 – Decided June 20, 2017

Before Judges Sabatino, Nugent and Geiger.

On appeal from Superior Court of New Jersey, 

Law Division, Camden County, Indictment No. 

12-09-2523.

Marcia Blum, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. 

Krakora, Public Defender, attorney; Ms. Blum, 

of counsel and on the brief).

Sarah Lichter, Deputy Attorney General, argued 

the cause for respondent (Christopher S. 

Porrino, Attorney General, attorney; Sara M. 

Quigley, Deputy Attorney General, of counsel 

and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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-2182-14T3

Following a 2014 jury trial, defendant Laurie Wint 1 was 

convicted of second-degree passion/provocation manslaughter, 

N.J.S.A. 2C:11-4(b)(2) as a lesser-included offense of murder 

(count one); second-degree possession of a firearm for an unlawful 

purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful 

possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); 

fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count four); 

and a second-degree "certain persons" weapons offense, N.J.S.A.

2C:39-7(b) (count five). After appropriate mergers, the trial 

court sentenced defendant to a fourteen-year custodial term on 

count one, subject to an eighty-five percent parole ineligibility 

period pursuant to N.J.S.A. 2C:43-7.2, a four-year concurrent flat 

sentence on count four, and an eight-year consecutive term on 

count five, subject to a five-year parole disqualifier. These 

sentences were all made consecutive to a sentence that defendant 

was serving on a Pennsylvania conviction. 

A key aspect of the State's proofs at trial was defendant's 

admission, made during the course of a custodial interrogation by 

detectives in Pennsylvania who were investigating a different 

homicide in that state, that he had "murdered" a victim in New 

 

1 In certain portions of the record, defendant is referred to as 

"Lance."
3 A-2182-14T3

Jersey in June 2011. The interview in Pennsylvania took place 

about six months after defendant had been met successively in New 

Jersey by Camden and then by Pennsylvania detectives, and after 

he had invoked each time his rights to counsel and to remain 

silent. The trial court denied defendant's motion to suppress his 

incriminating statement to the Pennsylvania investigators after 

conducting a pretrial hearing on the issue.

Defendant's principal argument on appeal is that the trial 

court erred in its suppression ruling by misapplying the principles 

of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed.

2d 378 (1981), and other case law that substantially restricts the 

re-interrogation of suspects who have invoked their privilege 

against self-incrimination and their rights to have counsel 

present. Defendant further argues that the prosecutor made unduly 

prejudicial comments during summation. Lastly, he contends that 

the trial court should have granted his motion for a mistrial when 

it excused two jurors and replaced them with alternates.

For the reasons that follow, we remand the suppression issue 

for reconsideration and a taint/attenuation hearing. As we 

explain, the remand proceeding shall focus upon what we have 

determined to be the impropriety of the Pennsylvania detectives' 

first attempted interview of defendant in New Jersey, and whether 

that interview tainted their interview of defendant in 
4 A-2182-14T3

Pennsylvania six months later. We reject defendant's remaining 

arguments concerning the summation and the replacement of jurors.

I.

The trial arose out of the fatal shooting of the victim, 

Kevin Miller, in a park in Camden on June 8, 2011. The State's 

theory was that defendant, who had previously dated Miller's 

girlfriend, had purposefully killed Miller after the two of them 

had an argument. Conversely, defendant claimed that he had fired 

the gun in self-defense after being accosted in the park by Miller 

and several other individuals, at least two of whom had gang 

affiliations.

The State presented no eyewitnesses at trial who actually 

observed the shooting. However, it did present testimony from a 

resident next to the park who heard the sound of a gunshot while 

he was outside of his home watering plants. According to that 

resident, when he heard the shot, he looked up and saw two men 

running in the same direction. One man appeared to be chasing the 

other man. The resident saw the man who was being chased collapse. 

Other young men ran up to the collapsed man, who told them that 

he had been shot. The injured man was then placed in a pickup 

truck and driven away. The resident did not get a "clear view" 

of the man who had been chasing the shooting victim.
5 A-2182-14T3

The State also presented testimony from defendant's former 

girlfriend. She testified that on the day in question, which 

happened to be her birthday, she had gone to Philadelphia with 

defendant and two other friends to smoke marijuana. When she 

returned to Camden later in the day, she learned that Miller, her 

then-current boyfriend, had been angry with her. She tried to 

call Miller, but he did not answer. According to testimony from 

the girlfriend's mother, Miller had stopped by her house that 

afternoon to show her a ring he bought her as a birthday gift. 

When Miller learned she was not home, he immediately left.

A woman who was defendant's current girlfriend at the time 

of the shooting testified that she had encountered Miller that 

same day. He asked her, "Where's your boyfriend? I heard he was 

with my girlfriend." When Miller left her, she sent a text message 

to defendant that warned him he was "chillin' with the enemy." 

The prosecution also called to the stand Clifton Bailey, a 

friend of Miller who had been with him on the day of the shooting. 

Bailey testified that Miller had picked him up at about 6:00 p.m. 

that day. Miller drove them to his girlfriend's house. Upon 

discovering she was not home, they drove around the neighborhood 

for a while looking for her. At that point, Bailey received a 

call from his girlfriend, who informed him that Miller's girlfriend 

had been in Philadelphia that day with defendant and other people. 
6 A-2182-14T3

According to Bailey, this revelation angered Miller. Bailey and 

Miller went to the park to "talk to one of our boys." Bailey 

denied that Miller was armed at the time.

As described by Bailey, he and Miller started going into the 

park, with Miller walking ahead of him. He saw Miller "tussling 

with somebody,"2 and then heard a gunshot. Bailey then saw Miller 

running inside the park, with another unidentified person running 

nearby. Bailey saw Miller fall. Recognizing Miller was wounded, 

Bailey drove him to the hospital.

Miller died thereafter. The undisputed cause of death, as 

confirmed by the medical examiner, was a gunshot wound to the left 

side of his chest.

Another prosecution witness, a close friend of defendant, 

testified that he saw defendant three or four days after the 

shooting. According to that witness, defendant revealed that 

Miller and Bailey, along with others, had tried to "jump" him in 

the park, and that Miller had punched him in the face. Defendant 

admitted to the friend that he became scared and thought "somebody 

was reaching like they [were] going to pull out a gun or 

 

2 Bailey had told police during an interview before trial that the 

person who had been "tussling" with Miller was defendant. However, 

after conducting a hearing pursuant to State v. Gross, 121 N.J.

1, 17 (1990), the trial court excluded that prior statement by 

Bailey as being insufficiently reliable to present to the jury.
7 A-2182-14T3

something." Defendant told his friend he then pulled out his gun 

and "just shot[.]"

Defendant was arrested by Camden County police officers over 

a month later, on July 31, 2011. The police located defendant 

after receiving a phone call reporting the whereabouts of a 

fugitive who was wanted for homicide. Defendant tried to run out 

of the house in which he was hiding once he saw that police 

officers were coming for him. 

Two days before defendant was arrested in New Jersey, he and 

another person were charged in Pennsylvania with the unrelated 

murder of a different victim occurring in that state. On the day 

of defendant's arrest, two detectives from Pennsylvania were 

waiting for him in the Camden County Prosecutor's Office to 

question him about the Pennsylvania charges. The Pennsylvania 

detectives monitored defendant from an adjacent room as he was 

first questioned there by Camden police. 

The Camden police issued Miranda3 warnings to defendant, but 

he declined to waive his privilege against self-incrimination and 

he also invoked his right to have counsel present. The Camden 

police consequently suspended their questioning. They told 

 

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694 (1966).
8 A-2182-14T3

defendant that a "couple more people [would] just stop in for you. 

Okay?" Defendant did not respond.

Immediately afterwards, the two Pennsylvania detectives came 

into the interrogation room and attempted to interview defendant, 

after giving him Miranda warnings. Defendant declined to speak 

substantively with those detectives. However, he expressed at 

that time a willingness to speak with them with counsel present 

about the Pennsylvania homicide, but at a later time in 

Pennsylvania.4 Shortly thereafter, the Pennsylvania detectives 

encountered defendant in the hallway, and he reiterated his 

willingness to speak with them on a future occasion in 

Pennsylvania.

Several months later, Pennsylvania detectives met defendant 

in the Camden County jail to obtain from him a DNA sample. 

According to the detectives' testimony, they did not question him 

at that meeting. However, they did advise him that they were 

processing paperwork to bring him to Pennsylvania for questioning, 

to which defendant responded, "Yeah, I'll talk to you when I get 

back to Bucks [County]." 

 

4 The details of this questioning, which were developed in a 

pretrial suppression hearing, are discussed in more detail in Part 

II(A), infra.
9 A-2182-14T3

Six months after his initial questioning in Camden, defendant 

was brought from the Camden jail to a police station in Warminster, 

Pennsylvania to speak with the Pennsylvania detectives. No counsel 

for defendant was present. The Pennsylvania detectives readministered Miranda warnings to defendant. He then waived his 

rights, and proceeded to speak with the detectives.

During the course of questioning defendant, Detective Martin 

McDonough of the Bucks County District Attorney's Office asked him 

why he had come to Warminster. Defendant responded, "[T]here were 

warrants for us. In June 2011 I committed a murder in Camden. 

About three weeks after the murder I saw my picture on TV."

At trial, the State called Detective McDonough to relate 

defendant's incriminating statement admitting that he had 

committed a murder in Camden. That critical evidence was presented 

to the jury, in accordance with the trial court's denial of 

defendant's pretrial suppression motion.

Defendant was the only witness to testify at trial on his 

behalf. He asserted that Miller and Bailey were members of the 

Bloods gang, but claimed that he himself was not a member of any 

gang. He described both Miller and Bailey as "violent[,]" 

asserting that they "always start[ed] trouble in the 

neighborhood."
10 A-2182-14T3

Defendant told the jury that on June 8, 2011 he was walking 

through the park on his way home, after returning from the trip 

to Philadelphia. Defendant testified that, while walking, he saw 

a white Crown Victoria containing Bailey, Miller, and two other

men. According to defendant, the car "stopped in the middle of 

the street" and all four men got out. Miller then allegedly said, 

"Yo, Lance, come here, come here," but defendant asserted that he 

kept walking.

According to defendant, he then heard Miller "running across 

the street[,]" and when defendant looked back, "all three of them 

started punching" him. Defendant claimed that he then saw Bailey 

"pull out the gun[,]" at which point the men "start[ed] backing 

up and pulling out another gun[.]" In response, defendant "reached 

for [his] gun and shot it[,]" because he was "scared that [he] was 

going to die." 

Defendant admitted that he did not have a permit for the .25 

caliber gun he used. He insisted that he carried a gun, despite 

the lack of a permit, because he lived "in a violent neighborhood" 

and needed to "save" himself. Defendant testified that, when he 

shot the gun, he "just pulled the trigger." According to 

defendant, he did not know that the bullet had hit anyone. 

Defendant asserted that, as he ran from the scene, he threw the 

gun away.
11 A-2182-14T3

Defendant further testified that he left Camden about three 

weeks later and went to Warminster, because "I saw myself on TV 

and they said I was wanted for murder." He claimed that he did 

not know that New Jersey had a self-defense law, so he "just took 

off." Defendant also testified that the Bloods gang members were 

"looking" for him and "were trying to shoot" him.

According to defendant, he told Detective McDonough during 

the interview in Warminster that he "did a shooting in Camden." 

McDonough allegedly then asked if someone had died, and when 

defendant responded that they had, McDonough told him, "that's a 

murder."

II.

In his brief on appeal, defendant presents the following 

arguments:

POINT I

THE PURPORTED CONFESSION, ELICITED DURING AN 

INTERROGATION CONDUCTED AFTER WINT HAD 

ASSERTED HIS RIGHT TO COUNSEL AT TWO PREVIOUS 

INTERROGATIONS, SHOULD HAVE BEEN SUPPRESSED 

UNDER THE EDWARDS RULE BECAUSE: WINT DID NOT 

INITIATE COMMUNICATION WITH THE POLICE AFTER 

HE FIRST ASSERTED HIS RIGHT TO COUNSEL; THERE 

WAS NO BREAK IN CUSTODY BETWEEN HIS TWO PRIOR 

ASSERTIONS OF THE RIGHT TO COUNSEL AND THE 

THIRD INTERROGATION; AND HE WAS NOT PROVIDED 

WITH COUNSEL AT THE THIRD INTERROGATION.

A. The Edwards rule.
12 A-2182-14T3

B. The purported statement should have 

been suppressed because Wint invoked his 

right to counsel when he was questioned 

by the Camden police, invoked it again a 

few minutes later when he was questioned 

by the Pennsylvania police, and the 

statement was obtained during a third 

interrogation in which he was not 

provided with counsel.

C. The motion court made incorrect 

factual and legal findings.

D. There was no break in Wint's custody.

E. Wint did not waive his request for 

counsel with respect to the Camden 

offense.

F. Conclusion.

POINT II

THE TRIAL COURT ERRED IN FAILING TO CORRECT 

THE PROSECUTOR'S IMPROPER ARGUMENT THAT WINT'S 

FAILURE TO REPORT HIS SELF-DEFENSE CLAIM TO 

THE POLICE BEFORE HE WAS ARRESTED WAS PROOF 

OF HIS GUILT. (Not Raised Below)

POINT III

THE TRIAL COURT ERRED IN REFUSING TO GRANT A 

MISTRIAL AFTER A JUROR INFORMED THE PANEL THAT 

SHE KNEW A MEMBER OF THE VICTIM'S FAMILY WHO 

ATTENDED THE LAST DAY OF TRIAL AND THAT SHE 

WAS AFRAID THAT HE WOULD RETALIATE IF WINT WAS 

NOT CONVICTED.

A.

We first address defendant's main argument that the trial 

court should have granted his motion to suppress the incriminating 

statement he made to the Pennsylvania detectives when they 
13 A-2182-14T3

questioned him in Warminster six months after his initial 

respective interrogations by the New Jersey and Pennsylvania 

officers in Camden. In considering defendant's contentions on 

this issue, we apply well-established principles of appellate 

review. 

In general, appellate courts review a trial court's factual 

findings from a suppression hearing under "a deferential 

standard." State v. Stas, 212 N.J. 37, 48 (2012). Our role with 

respect to the review of factual findings is to consider "whether 

the findings made could reasonably have been reached on sufficient 

credible evidence present in the record." State v. Johnson, 42 

N.J. 146, 162 (1964); see also State v. Elders, 192 N.J. 224, 243-

44 (2007) (internal citations omitted). We must bear in mind the 

trial court's "opportunity to hear and see the witnesses and to 

have the 'feel' of the case, which a reviewing court cannot enjoy."

Johnson, supra, 42 N.J. at 161; see also Stas, supra, 212 N.J. at 

49. 

By comparison, "with respect to legal determinations or 

conclusions reached on the basis of the facts," our appellate 

review is plenary. Ibid. For mixed questions of law and fact, 

we give deference only to the "supported factual findings" of the 

trial court, "but review de novo the lower court's application of 

any legal rules to such factual findings." State v. Harris, 181 
14 A-2182-14T3

N.J. 391, 416 (2004) (citing State v. Marshall, 148 N.J. 89, 185 

(1997)).

1.

The key substantive principles of law that guide us on the 

re-interrogation and suppression issues here were set forth by the 

United States Supreme Court in Edwards v. Arizona, supra, 451 U.S.

at 477, 101 S. Ct. at 1880, 68 L. Ed. 2d at 378, and thereafter 

clarified by the Court and our own state court in later decisions. 

Most notably for our purposes here, those post-Edwards decisions 

include Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct. 1213, 175 L. 

Ed. 2d 1045 (2010).

In Edwards, the defendant, who had been charged with robbery, 

burglary, and murder, initially invoked his right to counsel, 

asking for an attorney to counsel him prior to entering into any 

negotiated plea. Id. at 479, 101 S. Ct. at 1882, 68 L. Ed. 2d at 

382. The following morning, the detectives who had previously 

questioned defendant visited the jail and asked to talk with him.

Ibid. The defendant was told by a guard at the jail that "he had 

to talk" to the detectives. Id. at 479, 101 S. Ct. at 1882, 68 

L. Ed. 2d at 383. After being read Miranda warnings, the defendant 

waived his rights and provided statements implicating himself in 

the crime. Ibid.
15 A-2182-14T3

In reversing the Arizona Supreme Court's finding that the 

statements were admissible, the United States Supreme Court held 

in Edwards that

when an accused has invoked his right to have 

counsel present during custodial 

interrogation, a valid waiver of that right 

cannot be established by showing only that he 

responded to further police-initiated 

custodial interrogation even if he has been 

advised of his rights. . . . an accused, such 

as Edwards, having expressed his desire to 

deal with the police only through counsel, is 

not subject to further interrogation by the 

authorities until counsel has been made 

available to him, unless the accused himself 

initiates further communication, exchanges, 

or conversations with the police.

[Id. at 484-85, 101 S. Ct. at 1884-85, 68 L. 

Ed. 2d at 386 (emphasis added).]

The Court further noted that, "[h]ad Edwards initiated the meeting 

[at the jail at which he gave the statements], nothing in the 

Fifth and Fourteenth Amendments would prohibit the police from 

merely listening to his voluntary, volunteered statements and 

using them against him at the trial." Id. at 485, 101 S. Ct. at 

1885, 68 L. Ed. 2d at 387. 

An important aspect of such an inquiry, therefore, is whether 

the defendant re-initiated contact with the police. Id. at 487, 

101 S. Ct. at 1886, 68 L. Ed. 2d at 388. To determine whether a 

defendant re-initiated such a conversation with the police after 

invoking his right to counsel, a court must look at whether the 
16 A-2182-14T3

suspect "evince[d] a willingness and a desire for a generalized 

discussion about the investigation[.]" State v. Fuller, 118 N.J.

75, 82 (1990) (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045-

46, 103 S. Ct. 2830, 2834-35, 77 L. Ed. 2d 405, 412 (1983)).

The Edwards rule has since been applied "to any subsequent 

interrogation, whether it pertained to the crime that prompted the 

initial interrogation or to a different crime." State v. Wessells, 

209 N.J. 395, 403 (2012) (emphasis added) (citing Arizona v. 

Roberson, 486 U.S. 675, 683-84, 108 S. Ct. 2093, 2098-99, 100 L. 

Ed. 2d 704, 714-15 (1988)). The Edwards restriction is "designed 

to prevent police from badgering a defendant into waiving his 

previously asserted Miranda rights[.]" McNeil v. Wisconsin, 501 

U.S. 171, 177, 111 S. Ct. 2204, 2208, 115 L. Ed. 2d 158, 168 (1991) 

(quoting Michigan v. Harvey, 494 U.S. 344, 350, 110 S. Ct. 1176, 

1180, 108 L. Ed. 2d 293, 302 (1990)).

Another key facet of the Edwards rule concerns the time 

interval between when a suspect is initially questioned and later 

interrogated, and, in particular, whether he or she has had what 

the Court has regarded as a "break in custody." This concept was 

illuminated by the United States Supreme Court in Shatzer, supra.

In Shatzer, the defendant was incarcerated on an unrelated 

crime prior to the interrogation concerning the crime at issue in 

that case. Supra, 559 U.S. at 100-01, 130 S. Ct. at 1217, 175 L. 
17 A-2182-14T3

Ed. 2d at 1050. The defendant was questioned in 2003 about the 

crime at issue, and invoked his right to counsel. Id. at 101, 130 

S. Ct. at 1217, 175 L. Ed. 2d at 1051. The defendant was then 

returned to "the general prison population" without further 

questioning. Ibid. The defendant was again interrogated about 

that same crime three years later in 2006, after waiving his 

Miranda rights. Id. at 101, 130 S. Ct. at 1218, 175 L. Ed. 2d at 

1051.

In holding that the defendant's 2006 statement was 

admissible, the Court explained in Shatzer that the rationale 

underlying Edwards was that

subsequent requests for interrogation pose a 

significantly greater risk of coercion. That 

increased risk results not only from the 

police's persistence in trying to get the 

suspect to talk, but also from the continued 

pressure that begins when the individual is 

taken into custody as a suspect and sought to 

be interrogated[.]

[Id. at 104-05, 130 S. Ct. at 1220, 175 L. Ed.

2d at 1053 (emphasis added).]

The Court further reasoned in Shatzer that, when a suspect is not 

released from pretrial custody prior to a subsequent 

interrogation, that suspect has not "regained a sense of control 

or normalcy after they were initially taken into custody for the 

crime under investigation." Id. at 107, 130 S. Ct. at 1221, 175 

L. Ed. 2d at 1055.
18 A-2182-14T3

The Court thus announced in Shatzer a "break in custody"

exception to the Edwards rule. It instructed that when "a suspect 

has been released from his pretrial custody and has returned to 

his normal life for some time before the later attempted 

interrogation, there is little reason to think that his change of 

heart regarding interrogation without counsel has been coerced."

Ibid. Consequently, the Edwards prohibition on a re-interrogation 

initiated by police rather than by a defendant did not extend to 

circumstances in which there had been a sufficient "break in 

custody[.]" Id. at 109-10, 130 S. Ct. at 1222, 175 L. Ed. 2d at 

1056. As a bright-line rule, the Court stated that a fourteenday interval between the initial questioning of a defendant in 

confinement and a resumed interrogation of such a person would 

suffice to protect the defendant's constitutional rights. Id. at 

110-12, 130 S. Ct. at 1223, 175 L. Ed. 2d at 1057.

Significantly, the Court in Shatzer emphasized the "vast 

differences" between "Miranda custody" of a pretrial detainee and 

the "incarceration [of a defendant] pursuant to conviction." Id.

at 114, 130 S. Ct. at 1225, 175 L. Ed. 2d at 1059. The Court 

recognized that "lawful imprisonment imposed upon [a defendant's] 

conviction of a crime does not create the coercive pressures 

identified in Miranda." Id. at 113, 130 S. Ct. at 1224, 175 L. 

Ed. 2d at 1058. That is because "[i]nterrogated suspects who have 
19 A-2182-14T3

previously been convicted of crime live in prison." Ibid. When 

released back to the general prison population, "they return to 

their accustomed surroundings and daily routine" and "regain the 

degree of control they had over their lives prior to the 

interrogation." Ibid.

Unlike pretrial detainees, sentenced prisoners are "not 

isolated with their accusers." Ibid. Moreover, their continued 

confinement is "relatively disconnected from their prior 

unwillingness to cooperate in an investigation." Id. at 113, 130 

S. Ct. at 1224-25, 175 L. Ed. 2d at 1058. Their former 

interrogators have no power to increase or decrease the length of 

their criminal sentences. Id. at 113, 130 S. Ct. at 1225, 175 L. 

Ed. 2d at 1058-59. By contrast, a pretrial detainee who has yet 

to be convicted and sentenced can be subject to significant 

coercive pressure from a law enforcement investigator. Ibid.

Our State Supreme Court in Wessells, supra, 209 N.J. at 413, 

applied the fourteen-day bright-line rule adopted in Shatzer to a 

situation in which the police had re-interviewed a suspect, who 

had previously invoked his right to counsel, only nine days after 

he had been released from custody. The Court ruled that because 

the full fourteen-day break in custody prescribed by Shatzer had 

not yet elapsed, "the coercive taint at the initial interrogation 

had not dissipated and that [defendant's] statements . . . were 
20 A-2182-14T3

therefore not voluntary." Ibid. The Justices also determined 

that the principles of Shatzer were mandatory, and did not amount 

to mere legal presumptions. Id. at 409-11.

2.

Defendant invokes the tenets of Edwards and Shatzer in 

contending that the trial court here committed reversible error 

in admitting into evidence his custodial statement he made to the 

Pennsylvania investigators in Warminster. First, he argues that 

the Pennsylvania detectives should not have been allowed to 

interrogate him in Camden without counsel, immediately after he 

had invoked his self-incrimination privilege and his right to an 

attorney when speaking with the Camden officers. Second, he 

maintains that he did not unilaterally "re-initiate" the lines of 

communication with the Pennsylvania detectives and that the trial 

court's contrary finding is not supported by a fair reading of the 

record. Third, he contends that the court misapplied the law in 

concluding that a sufficient "break in custody" occurred between 

the two interrogations in New Jersey and the later interrogation 

in Pennsylvania because he was continuously a pretrial detainee 

during that entire time frame.
21 A-2182-14T3

Taking these sub-points in order, we first focus upon the 

attempted interview by the Pennsylvania detectives that occurred 

at the Camden City Police Station on July 31, 2011, immediately 

after the Camden police had issued Miranda warnings to him and he 

invoked, in response, his right to counsel. Because of the pivotal 

importance of this first conversation defendant had with the 

Pennsylvania detectives, we present the transcribed version5 in 

its entirety here.

DETECTIVE MCDONOUGH ("MM"): How ya doin? Do, 

do you go by Lance or Laurie or . . .

DEFENDANT ("D"): Yeah, Lance.

MM: Lance? I'm Marty McDonough. This is 

John Bernardin.

DETECTIVE BERNARDIN ("JB"): John Bernardin.

D: How ya doin?

MM: We're, we're detectives form 

Pennsylvania.

D: Okay.

MM: I work for the Prosecutor's Office in 

Pennsylvania. John works for the police 

department in Warminster. Um, I understand 

that Camden asked you if you wanted to talk 

about their case.

D: Mm, hmm.

 

5 We have also viewed the video recording of the interview, which 

was played for the trial court during the suppression hearing.
22 A-2182-14T3

MM: Um, we're from Bucks County. There's 

always two sides to a story. And what we'd 

like to do is talk to you about our case.

D: Okay.

MM: Um, I'd like to know if you're willin to 

do that. There's always, like I said, there's 

always two sides to a story.

D: Mm, hmm. Um, you give, you give me a 

cigarette, I'll tell you the whole thing about 

yours because I didn't even know, I don't know 

the guy.

MM: Okay.

D: I really don't know who hired. . .

MM: Okay. But let, I have to go through 

this. The same thing that Camden did?

D: Yeah.

MM: I have to go through it [i.e., the 

issuance of Miranda warnings] again with you 

because it's two separate cases.

D: (inaudible)

MM: I mean you said you don't wanna talk to 

them. . .

D: Because. . .

MM: And I just have to make sure. . .

D: They're harassin me.

MM: What's that?

D: Harassin me. Like cops are like tellin 

the stuff here, like threatening me and stuff.

MM: Okay.
23 A-2182-14T3

D: So I don't really wanna talk to. . .

MM: Okay.

D: Anybody (inaudible)

MM: But you're willing to talk to us though?

D: Yeah. Cause you guys not from. . . 

MM: No. We're from Pennsylvania. Obviously, 

you know you're under arrest. Right?

D: Yeah I am.

MM: We have the duty to explain to you and 

warn you of the following legal rights. What 

I'd like to do is I'm gonna read you each of 

these and there's a letter next to them. . .

D: Uh, huh.

MM: As long as you understand what I explain 

to you just put your initials next to each 

letter.

D: Mm, hmm.

MM: Okay? You have the right to [re]main, 

remain silent and you do not have to say 

anything at all. You understand that?

D: Mm, hmm.

MM: Put your initials next to A. Anything 

you say can and will be used against you in a 

court of law. Understand that? You have the 

right to talk to a lawyer of your own choice 

before we ask any questions and also to have 

a lawyer with you while we ask the questions 

if you, if you so desire. Do you understand 

that?
24 A-2182-14T3

If you cannot afford to hire a lawyer and 

you want one, we will see that a lawyer's

provided to you free of charge before we ask 

you any questions. You understand that?

If you're willin to answer our questions, 

you have the right to stop answering such 

questions at any time you wish. You 

understand that?

D: Mm. hmm.

MM: Do you understand all the things that 

have been explained to you?

D: Mm, hmm.

MM: And what I asked you that question, your 

answer was. . .

D: What question? Do I understand?

MM: Do you understand all the things that 

have been explained to you?

D: Yes.

MM: Okay. Do me a favor? Write the word yes 

there, then put your initials here? Okay, the 

last question do you wish to speak to us 

without a lawyer being present.

D: I want him to sit here while we talk.

[Brief interruption when a Camden detective 

temporarily enters to drop off or retrieve a 

briefcase.]

MM: I didn't hear. Do you wish to speak to 

us without a lawyer being present?

D: I want him to sit here while we ta[lk].

MM: You want a lawyer here with us?
25 A-2182-14T3

D: Yeah.

MM: Okay. So, that, that won't happen today 

because we don't have a lawyer here with you. 

But if you want one, that, that, that's fine.

D: Yeah.

MM: You're welcome to do that but, um, if you 

wanted to talk to us today then, then your 

answer here would be no?

D: No. I would. . .

MM: Or do you want to talk to us today?

D: I wanna talk to y'all but I want a lawyer 

here present cause I don't, don't. . .

MM: I got ya. I got ya. That, that, that's, 

if that's your answer, that's you[r] answer.

D: Yeah. So. . .

MM: So, you do not want to talk to us right 

now.

D: Without a lawyer?

MM: Correct. So you write no there [on the 

form]. And put your initials there. And do 

me a favor, sign the, sign this across here?

D: Across that way?

MM: Yep. And just down here put the date and 

the time. The time is, uh. . .

D: 7[:]30

MM: Yeah.

JB: 9:30.

D: 9:30?
26 A-2182-14T3

MM: Mm, hmm. Okay, So I guess we're done 

for today then.

D: Sorry.

MM: You have any question. . . You don't 

have to apologize. You, you can do what you 

want. You have any questions for us? Okay.

[(Emphasis added).] 

The trial court6 made no specific findings as to whether this 

first session the Pennsylvania detectives had with defendant in 

New Jersey was permissible under Edwards and the controlling case 

law. Of course, we give due deference to the trial court, 

including its determination that the detectives who testified at 

the suppression hearing were credible. Nonetheless, we conclude 

as a matter of law that the Pennsylvania detectives' first attempt 

to question defendant, only a few minutes after they witnessed him 

invoking his right to counsel to the Camden detectives, violated 

his constitutional rights.

As the United States Supreme Court made very clear in Edwards, 

"an accused . . . , having expressed his desire to deal with the 

police only through counsel, is not subject to further 

interrogation by the authorities until counsel has been made 

available to him, unless the accused himself initiates further 

 

6 The pretrial suppression ruling was made by a different judge 

than the one who eventually tried the case.
27 A-2182-14T3

communication, exchanges, or conversations with the police." 

Edwards, supra, 451 U.S. at 484-85, 101 S. Ct. at 1885, 68 L. Ed.

2d at 386. 

Here, defendant indisputably and unambiguously expressed to 

the Camden detectives during their attempted interview with him 

that he did not want to answer questions without having counsel 

present. Despite that clear invocation of his rights, the Camden 

authorities allowed the Pennsylvania detectives into the interview 

room moments later, without telling defendant that he was not 

obligated to speak with them. Clearly, defendant himself did not 

"initiate" the back-to-back interview, and the trial court made 

no such finding. Further, it is undisputed that no attorney was 

summoned to be present with defendant when the Pennsylvania 

detectives attempted to question him.

For purposes of this first phase of our constitutional 

analysis, it is irrelevant that the Pennsylvania detectives had 

come to New Jersey from a different jurisdiction and wanted to 

speak with him about a different homicide committed in that state. 

See, e.g., Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 

112 L. Ed. 2d 489 (1990) (holding it unconstitutional for a county 

deputy sheriff to interrogate a suspect about a homicide only two 

days after he had been interviewed at the local jail by FBI agents 

about other matters and had then invoked his right to have counsel 
28 A-2182-14T3

present, where the suspect had consulted with an attorney but had 

not initiated the subsequent conversation with the deputy 

sheriff). See also State v. Hartley, 103 N.J. 252 (1986) (likewise 

holding that the court must exclude incriminating statements a 

suspect made to State law enforcement officials after he had been 

improperly questioned by federal agents who had not administered 

Miranda warnings to him). As the Court noted in Hartley, despite 

the fact that the New Jersey officials themselves had issued 

Miranda warnings to defendant during the second interview, their 

questioning "on the heels of" the improper earlier interview by 

the federal agents was "unavoidably tainted." Id. at 284.

We recognize that the video and transcript show that the 

Pennsylvania detectives approached defendant in a polite and nonthreatening manner, and that they did not try to coerce him 

unfairly into making any incriminating statements. We further 

recognize that the Pennsylvania detectives confined their 

discussion to the crime in Pennsylvania, and that they immediately 

respected defendant's wishes once he made it clear that, although 

he was willing to talk with them about the Pennsylvania matter, 

he did not want to speak to them about it at that time without a 

lawyer present. Even so, the Pennsylvania detectives had no right 

to initiate any interrogation of defendant, only minutes after he 
29 A-2182-14T3

had invoked his right to counsel in the same interrogation room 

to the Camden detectives.

For these compelling reasons, we hold, as a matter of law, 

that it was improper for the Pennsylvania detectives to attempt 

to interrogate defendant in Camden "on the heels" of his invocation 

of his rights to the Camden investigators, just as a similar 

sequence of questioning was invalidated in Hartley. Ibid.

With this key legal infirmity in mind, we turn to consider 

whether later events nonetheless render the statements that 

defendant made to the Pennsylvania detectives six months 

afterwards admissible. In ruling those later statements were 

admissible, the trial judge largely focused upon two factors: (1) 

a finding that defendant, rather than the Pennsylvania detectives, 

initiated the arrangements to interview him in Pennsylvania, and 

(2) a finding that there was a sufficient "break in custody" 

between the two consecutive interviews in Camden and the later 

interview in Warminster.

With all due respect to the trial court's fact-finding role, 

it is apparent that the record nonetheless reflects that the 

Pennsylvania detectives, rather than defendant, were the primary, 

if not sole, initiators of the Warminster interrogation. As 

recounted by Detective McDonough at the suppression hearing, "as 

we were leaving [Camden] we explained to [defendant] that we were 
30 A-2182-14T3

trying to file paperwork to bring him back to Bucks and that we 

would talk to him when he got back to Bucks. And he acknowledged, 

yeah, I'll talk to you when I get back to Bucks." This description 

by the detective supports defendant's contention that his 

expressed willingness to resume talking with the Pennsylvania 

detectives – after invoking to them his right to counsel – was 

not, as the trial court found, "unsolicited." Instead, defendant's 

response in the hallway at the Camden police station mimicked the 

language contained in the remark the detectives first made to him.

Although defendant had expressed earlier in the interrogation 

room a desire to speak in Pennsylvania with the Pennsylvania 

detectives about the homicide case pending in that state, there 

is no proof that he re-initiated a discussion with the Pennsylvania 

detectives after telling them he wanted a lawyer. Instead, the 

impetus to initiate a discussion after defendant invoked his 

constitutional rights came from the Pennsylvania detectives. 

Given the chronology shown by the record, the trial court's 

mistaken finding on this discrete point must be set aside.7 See, 

e.g., State v. Hreha, 217 N.J. 368, 385 (2014) (reversing trial 

 

7 To be fair to the trial court, the hallway conversation in Camden 

was not recorded or transcribed. Nonetheless, there is no proof 

that defendant spoke first to the officers, or that he raised the 

topic of a subsequent interview without police prompting.
31 A-2182-14T3

court findings from a suppression hearing where the record lacked 

sufficient credible evidence to support them).

Viewing, as we must, the record as a whole, we conclude that 

defendant did not "initiate" his second interrogation by the 

Pennsylvania detectives. Accord Edwards, supra, 451 U.S. at 484-

85, 101 S. Ct. at 1885, 68 L. Ed. 2d at 386. At the very least, 

there is no evidence in this record that defendant ever told the 

Pennsylvania detectives before he was taken by them to Warminster 

that he was willing to answer their queries without having a lawyer 

at his side.

Moving on to defendant's final sub-point regarding the "break 

in custody" factor set forth in Shatzer, we encounter additional 

difficulties. Apparently, neither of the trial attorneys 

expressly argued to the pretrial judge that, as we noted in Part 

II(A)(1), supra, the Supreme Court in Shatzer recognized an 

important doctrinal distinction between the interrogation of 

persons who are confined due to past convictions, as opposed to 

persons who are pretrial detainees. See Shatzer, supra, 559 U.S.

at 104-05, 130 S. Ct. at 122-210, 175 L. Ed. 2d at 1053. 

It is undisputed that defendant was still a pretrial detainee 

being held in New Jersey at the time he was extradited and brought 

over to Pennsylvania for questioning on January 18, 2012. The 

record does not divulge whether he had been assigned an attorney 
32 A-2182-14T3

by that point in New Jersey to represent him. He had not yet been 

indicted in New Jersey. The terms of his detention and whether 

he had been unable to post bail are not clear. Nor does the 

present record divulge what defendant's "normal" routine was in 

New Jersey during that period of his pre-trial confinement. Such 

details were important to the Supreme Court in its "break in 

custody" analysis in Shatzer. See id. at 114, 130 S. Ct. at 1225, 

175 L. Ed. 2d at 1059 (underscoring the defendant's ability as a 

prisoner to have regular exercise and recreation, visit the 

library, receive training and education, send and receive mail, 

and receive visits twice weekly). None of that information 

unfortunately is contained in the present record.

Moreover, it is not entirely clear if the Pennsylvania 

authorities' ability to place coercive pressures on defendant was 

sufficient here to negate a "break in custody." Id. at 113, 130 

S. Ct. at 1225, 175 L. Ed. 2d at 1059. To be sure, the pending 

homicide charges in Pennsylvania against defendant and another codefendant likely added to the degree of leverage over defendant 

while he was confined in the Camden County jail. On the other 

hand, his principal captors at that time were New Jersey officials, 

upon whom defendant was presumably dependent with respect to the 

day-to-day conditions of his confinement.
33 A-2182-14T3

In sum, the present record is incomplete and inconclusive to 

enable the Shatzer "break-in-custody" analysis to be resolved 

definitively. Consequently, we are not in an optimal position to 

either affirm or reverse the trial court's finding on that 

important sub-point. For the reasons noted, infra, an amplified 

break-in-custody analysis is best conducted by the trial court on 

remand, along with the taint/attenuation issue that we shall now 

discuss.

3.

The gap in time between defendant's first and second interview 

by the Pennsylvania detectives bears not only on the aforesaid 

break-in-custody question, but also implicates issues of taint and 

attenuation. More specifically, given our conclusions that (1) 

the Pennsylvania detectives' session with defendant in Camden was 

improper and (2) defendant did not re-initiate a conversation with 

them, does the impropriety of that session necessarily taint the 

detectives' interview in Warminster that followed six months 

later?

The United States Supreme Court has identified several 

factors for evaluating whether improper police questioning at an 

initial session will taint an interrogation conducted at a later 

time. These factors include the time between the interviews, 

whether the interview location changed, whether the defendant 
34 A-2182-14T3

received adequate Miranda warnings, whether he initiated the 

second interrogation, the effect on the second session of any 

admissions made at the first session, and the "purpose and 

flagrancy of [the] police misconduct." Brown v. Illinois, 422 

U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416, 427 

(1975); see also State v. Maltese, 222 N.J. 525, 548 (2015) 

(applying these factors); State v. Hartley, supra, 103 N.J. at 283 

(same). Depending upon how these factors align, a court determines 

whether a defendant's incriminating statement to police officials 

comprises the "fruit" of an illegal previous interrogation. See 

Maltese, supra, 222 N.J. at 549 (concluding that a defendant's 

incriminating statement to police was the fruit of an earlier 

unconstitutionally-obtained statement that he made to his uncle, 

which police had surreptitiously and illegally recorded).

The record on appeal in this case is inadequate to weigh and 

assess these taint factors. One might infer that the Pennsylvania 

detectives established a rapport with him during their illegal 

first session with him in Camden, and that the rapport facilitated 

their success in inducing him six months later in Warminster to 

waive his rights and speak to them there without the protection 

of counsel. On the other hand, even assuming the Pennsylvania 

detectives should not have met with defendant in Camden after he 

had invoked his rights, their session with him in Camden in which 
35 A-2182-14T3

he made no inculpatory admissions arguably could be viewed as 

innocuous and not reasonably something that tainted their future 

interactions with him. The trial court made no express rulings 

on these important questions of taint – understandably because it 

had not determined, as we do here, that the Pennsylvania 

detectives' attempted interview of defendant in Camden was 

improper.

The causal relationship between the series of events, or the 

lack thereof, is not obvious from the record. We cannot tell if, 

hypothetically, the Pennsylvania detectives had never met with 

defendant several times in Camden (first in the interrogation room 

in July 2011, thereafter in the hallway that day, and months later 

when they came to collect his DNA sample), whether he would have 

been amenable to waiving his rights and speaking with them in 

Warminster.

To be sure, as the pretrial judge aptly recognized, defendant 

appeared quite eager to discuss the Pennsylvania homicide with the 

Pennsylvania detectives in Camden, but not at that particular time 

and place. But we cannot readily determine from this record 

whether that seemingly eager attitude was affected by defendant's 

perception that he had been mistreated by the New Jersey 

authorities. Nor can we discern conclusively whether the 

Pennsylvania detectives, who stressed to defendant that they came 
36 A-2182-14T3

from a different state, unfairly capitalized on the improper 

opportunity to speak with him immediately after he had aborted his 

interview with the New Jersey detectives.

Defendant did not testify at the suppression hearing. The 

questions posed to the testifying officers at the hearing did not 

delve thoroughly into these critical subjects of cause, effect, 

and possible taint.

In making these observations, we do not subscribe to the 

extreme view that defendant's invocation of his Fifth Amendment 

rights in July 2011 during the interviews in Camden indefinitely 

and inexorably barred all law enforcement agents from any 

jurisdiction from attempting to interview him about the crimes 

during his lengthy period of pretrial detention. Long ago in 

Michigan v. Mosley, 423 U.S. 96, 102, 96 S. Ct. 321, 326, 46 L. 

Ed. 2d 313, 321 (1975), the United States Supreme Court cautioned 

that "a blanket prohibition against the taking of voluntary 

statements or a permanent immunity from further interrogation, 

regardless of the circumstances, would transform the Miranda

safeguards into wholly irrational obstacles to legitimate police 

investigative activity, and deprive suspects of any opportunity 

to make informed and intelligent assessments of their interests."8 

 

8 We are mindful that the Court's subsequent decisions after Mosley

refined these concepts, resulting, for example, in the "fourteen-
37 A-2182-14T3

Hence, a careful, case-specific analysis is necessary to determine 

if the interviews in Camden nullified the interview conducted six 

months later in Warminster, at which time defendant was duly reissued Miranda warnings and at which time he agreed to talk to the 

Pennsylvania detectives without counsel present.

As the New Jersey Supreme Court noted in Hartley, supra, 103 

N.J. at 283, issues of taint stemming from an initial improper 

interrogation "are ordinarily viewed as questions of fact to be 

determined by a trial court after a hearing." Furthermore, 

"ordinarily a remand for the purpose of conducting such a hearing 

and making findings of fact and conclusions of law would be in 

order." Id. at 283-84. On the facts in Hartley, the Court 

concluded that a remand was not needed, because the circumstances 

of the back-to-back interviews at issue there could not "generate 

a conclusion of sufficient attenuation between the first and second 

interviews to dissipate the taint." Id. at 284. 

In the present case, we find that the remand "ordinarily" 

prescribed by Hartley would be beneficial. As we have already 

noted, the trial court did not address questions of taint and 

attenuation that have now emerged on appeal as pivotal issues. We 

 

day rule" for break-in-custody analysis set forth in Shatzer. 

Nevertheless, the Court's general observation that we have quoted 

from Mosley remains instructive.
38 A-2182-14T3

will not presume that what occurred six months earlier in Camden 

necessarily invalidated the Pennsylvania detectives' interview in 

Warminster six months later. Instead, the questions of taint and 

attenuation must be explored in depth on remand at a supplemental 

hearing, at which both the State and defendant may present 

additional testimony germane to those matters. In a related vein, 

for the reasons we have already noted, the trial court must also 

address on remand the factual information bearing upon the "break 

in custody" analysis set forth in Shatzer.

At the conclusion of the remand proceeding, the trial court9

shall issue detailed findings of fact and conclusions of law as 

to these matters. The court shall specifically reconsider, in 

light of that analysis and the guidance of this opinion, whether 

defendant's incriminating statement he made in the Warminster 

interview should be admitted or suppressed. If the court finds 

the former, then his conviction shall remain in place. If the 

court finds the latter, defendant's conviction must be vacated and 

a new trial shall proceed, at which the statement will be excluded. 

Either party may pursue appellate review of the remand 

 

9 We recognize that the pretrial judge who presided over the 2013 

suppression hearing is no longer serving in the trial court, so a 

different judge will need to discharge this responsibility, 

perhaps the judge who presided over the 2014 trial.
39 A-2182-14T3

determination in a timely fashion, in accordance with the Rules 

of Court.

In sum, this matter is remanded for reconsideration of the 

suppression issues and for a hearing on taint/attenuation. Pending 

the completion of the remand process, the judgment of conviction 

shall remain in force.

B.

Although we need not reach the two remaining points raised 

on appeal by defendant, we address them very briefly for sake of 

completeness. Neither of them have any merit.

First, we find no basis to set aside defendant's conviction 

because of his claim that the prosecutor made unduly prejudicial 

remarks during summation. In particular, defendant complains, for 

the first time on appeal, that the prosecutor unfairly argued to 

the jury that he should have waited for the police at the scene 

of the shooting if indeed his conduct was innocuous. We discern 

no impropriety in this line of argument, which was a fair attempt 

to impeach and negate defendant's trial testimony asserting selfdefense. See State v. Brown, 190 N.J. 144, 159 (2007) (noting 

that a defendant's pre-arrest silence or conduct is admissible 

"for the limited purpose of impeaching [that] defendant's 

credibility"); State v. Brown, 118 N.J. 595, 613 (1990) (further 

noting that "evidence of pre-arrest silence, particularly in the 
40 A-2182-14T3

absence of official interrogation, does not violate any right of 

the defendant involving self-incrimination"). Moreover, the trial 

court in this case issued an appropriate limiting instruction on 

the point after the State cross-examined defendant about his prearrest conduct. Defendant identifies no deficiency in that 

instruction, and nor did his trial attorney.

Second, we are unpersuaded by defendant's claim that the 

trial court should have granted his counsel's motion for a mistrial 

after two jurors were dismissed and replaced by alternates during 

the deliberations. One of the two jurors had recognized a member 

of the victim's family in the audience, and she thereafter 

mentioned that observation to the other jurors. One of those 

other jurors expressed misgivings to the court about continuing 

to serve.

We are satisfied from the circumstances presented that the 

trial court acted appropriately to ameliorate any potential 

prejudice arising from these events and that it safeguarded 

defendant's right to a fair trial and a fair jury. The court 

performed a voir dire of all of the remaining jurors individually. 

Other than the two jurors who were excused, none of them expressed 

qualms about continuing with the deliberations. Nor is there any 

evidence that the jurors were exposed to extraneous evidence. The 

court's inquiries sufficed to assure that the deliberating jurors 
41 A-2182-14T3

would be unaffected by the events that led to the removal of their 

two colleagues. See State v. Jenkins, 182 N.J. 112, 124 (2004) 

(discussing the applicable standards for juror substitution). 

Defendant has not demonstrated that the trial court abused its 

discretion in its handling of these juror issues; State v. Musa, 

222 N.J. 554, 565 (2015) (requiring such a demonstration).

All other arguments presented by defendant lack sufficient 

merit to warrant discussion. R. 2:11-3(e)(2).

III.

Affirmed in part, and remanded in part for reconsideration 

and further hearing on the suppression issues. We do not retain 

jurisdiction.