Full Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4063-18 STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, April 18, 2022 v. APPELLATE DIVISION STEVE COTTO, a/k/a STEVEN SOSA, Defendant-Appellant. ________________________ Argued January 26, 2022 – Decided April 18, 2022 Before Judges Hoffman, Geiger and Susswein. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 16-12- 3213. Marc M. Yenicag, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Marc M. Yenicag, on the briefs). Caitlinn Raimo, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Caitlinn Raimo, of counsel and on the brief). The opinion of the court was delivered by SUSSWEIN, J.A.D. Defendant appeals from his jury trial conviction for aggravated arson. He contends the trial court erred in denying his motion to suppress statements he made during a custodial interrogation because the interrogating officers did not inform him that he would be charged with aggravated arson when they administered the Miranda1 warnings. He also contends the court committed errors during the trial that individually and collectively require us to vacate his conviction and remand for a new trial. After carefully reviewing the record in view of the applicable principles of law, we affirm. I. We discern the following facts from the trial record. At approximately 4:30 a.m., on July 17, 2016, Irvington Police Officer Rhoniel Edwards responded to a fire at a nightclub on Clinton Avenue in Irvington. The building housing the nightclub is comprised of three stories with private residences on the second and third floors. Police found pieces of burnt cloth, pieces of a broken glass bottle, and a plastic fuel canister on the sidewalk in front of the nightclub. Officer Edwards testified that when he arrived on the scene, the awning of the first-floor business was on fire. As he waited for the fire department to 1 Miranda v. Arizona, 384 U.S. 436 (1966). A-4063-18 2 arrive, the fire "became more aggressive" and "started making its way to the second floor." Edwards used the fire extinguisher in his police car to put out the fire. After the fire department arrived, Edwards canvassed the neighborhood to locate any surveillance cameras and any possible witnesses or suspects. He did not find any witnesses or suspects, but located four security cameras from businesses nearby, as well as a security camera at the building that housed the nightclub. Essex County Prosecutor's Office (ECPO) Detectives Joseph Davis and Lance Nero responded at approximately 7:40 a.m. Davis observed soot damage on the front door and window, and fire damage to a wooden sign for the nightclub on the front of the building. Davis testified that he smelled gasoline, and also observed and photographed a "burnt spot on the sidewalk in front" of the nightclub. The manager of the nightclub, Frandsen Clervoyant, arrived and played video surveillance recordings for the detectives. The exterior camera recording showed an individual starting the fire. Davis also reviewed surveillance footage from inside the nightclub that had been recorded while it was still open for business the night before. Davis determined that an A-4063-18 3 individual shown in the interior video recording appeared to be the same person who was shown setting the fire in the exterior-view recording. Based on the video recordings, Davis issued a "be on the lookout" (BOLO) alert for an "adult male approximately [forty] to [fifty] years of age, . . . thin to medium build, wearing a tee shirt, [and] what appeared to be dark pants, possibly jeans, and sneakers." The alert also included a description of a vehicle, specifically, "a dark colored older model four door sedan with a different colored hood." Clervoyant testified at trial that he closed the club a little later than normal on the night of the fire, around 2:00 or 2:05 a.m., because a man who he recognized from the neighborhood had come in and bought two or three drinks. Clervoyant did not know the man's name. Although Clervoyant testified that he would be able to recognize that individual, he answered "[n]o" when asked if that person was in the courtroom. During the investigation and again at trial, the State showed Clervoyant a series of photographs taken from security cameras both inside and o utside the nightclub to help identify the man in the surveillance video seen setting the fire. The first was a photograph that depicted the man who Clervoyant identified as the final customer who was in the club and who Clervoyant knew was from the neighborhood. The prosecutor also showed him a screenshot A-4063-18 4 photograph taken inside the nightclub that depicted a woman and two men near a pool table. Clervoyant identified the woman as a dancer at the nightclub. Clervoyant identified one of the men as a custodian at the nightclub. Clervoyant did not know the other man in the photograph. A third screenshot photograph showed the dancer and the unidentified man from the second photograph standing outside of the club. Detective Davis testified that he knew which direction the car described in the BOLO was travelling based on surveillance video recordings obtained from the surrounding businesses. Because Clervoyant had reported that the unidentified man was from the neighborhood, the detectives examined open - source tax records pertaining to properties located approximately within a block of the nightclub. The detectives obtained the names of the people associated with those properties and then obtained photographs of those people from the Division of Motor Vehicles (DMV) database to determine whether any of them matched the description of the person who started the fire. Davis, Nero, and ECPO Sergeant Christopher Smith also canvassed the area surrounding the nightclub to look for the car in the video. They obser ved a car parked in a driveway on Howard Street that fit the description of the car in the BOLO. They were able to view the license plate number from the street and ran it through the DMV computer system. Davis testified that they also A-4063-18 5 examined the property records for the address where the car was parked and determined that defendant lived there. Upon determining defendant's identity, they checked whether he had any outstanding arrest warrants. They discovered that he had open traffic warrants. 2 On August 5, 2016, Davis, Nero, Smith, and other law enforcement officers executed the open traffic warrants and arrested defendant at his workplace in Paterson. Defendant was handcuffed and transported to the ECPO Major Crimes Bureau headquarters for questioning.3 The ensuing stationhouse interrogation was electronically recorded pursuant to Rule 3:17. In December 2016, an Essex County Grand Jury returned a one-count indictment charging defendant with second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(2). Defendant moved to suppress statements he made during the August 5 stationhouse interrogation. On November 6, 2017, the trial court convened a suppression hearing at which the State presented testimony from the lead detective who conducted the interrogation. On December 1, 2017, the court 2 The record does not indicate why the traffic warrants had been issued. It is not disputed that they were valid arrest warrants and that defendant was lawfully taken into custody. 3 We describe the interrogation in detail in our consideration of defendant's Miranda-related arguments in section II of this opinion. A-4063-18 6 issued an oral opinion, concluding that defendant had knowingly, voluntarily, and intelligently waived his Miranda rights. The judge thereupon denied defendant's motion to suppress. A jury trial was held on January 23, 24, 29, and 30, 2019. On February 1, 2019, the jury found defendant guilty of aggravated arson. On April 12, 2019, the trial judge sentenced defendant to a term of seven years imprisonment. This appeal followed. Defendant raises the following contentions for our consideration: POINT I THE TRIAL COURT ERRED WHEN IT FOUND THAT MR. COTTO KNOWINGLY AND VOLUNTARILY WAIVED HIS MIRANDA RIGHTS BECAUSE THE INVESTIGATING OFFICERS DID NOT, BUT WERE OBLIGATED TO, INFORM MR. COTTO OF THE POTENTIAL CHARGES FOR ARSON AGAINST HIM PRIOR TO ANY REQUEST THAT HE WAIVE HIS MIRANDA RIGHTS. (Partially Raised). POINT II THE TRIAL COURT ERRED IN PERMITTING, OVER DEFENSE COUNSEL'S OBJECTION, DET. DAVIS TO TESTIFY AS AN EXPERT. DET. DAVIS' EXPERT TESTIMONY WAS UNESSENTIAL TO THE STATE'S CASE AND SERVED ONLY TO ENHANCE DAVIS' CREDIBILITY AS THE STATE'S CHIEF INVESTIGATOR AND PRIMARY FACT WITNESS. ANY PROBATIVE VALUE OF DAVIS' EXPERT A-4063-18 7 TESTIMONY CLEARLY WAS OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE. POINT III THE TRIAL COURT ERRED IN NOT EXCISING FROM DEFENDANT'S RECORDED STATEMENT NUMEROUS PREJUDICIAL COMMENTS BY THE INVESTIGATING OFFICERS EXPRESSING LAY OPINION TESTIMONY THAT DEFENDANT WAS THE INDIVIDUAL DEPICTED ON VIDEOS SETTING FIRE TO THE CLUB. (Not Raised Below). POINT IV THE JURY CHARGE WAS FUNDAMENTALLY FLAWED. IN CHARGING THE JURY, THE TRIAL COURT FAILED TO ALERT THE JURY TO EVIDENCE IN THE RECORD STRONGLY SUGGESTING THAT DEFENDANT'S INTENT WAS MERELY TO BURN THE SIGN ON THE BUILDING'S FRONT FAÇADE, NOT TO "DESTROY THE BUILDING," AN ESSENTIAL ELEMENT OF AGGRAVATED ARSON, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL. (Not Raised Below). II. A. We first address defendant's contention that the statements he made during the August 5, 2017 custodial interrogation should have been suppressed. We begin by summarizing the facts pertinent to this appeal that were elicited at the suppression hearing. A-4063-18 8 The State presented Detective Davis as its only witness at the hearing. Davis explained that he and Detective Nero conducted the interrogation, which began at approximately 9:05 a.m. and concluded at approximately 10:52 a.m. Defendant had been arrested on the authority of the outstanding traffic warrants. Davis acknowledged, however, that defendant was a suspect in the nightclub arson and that the purpose for questioning him was to investigate that crime. Prior to the start of the interrogation, defendant was secured and checked for weapons. Davis testified that defendant was "relatively calm" but "became a little more agitated" when the detectives started to speak with him about the nightclub fire. Davis also testified that defendant did not appear intoxicated, did not appear exhausted, did not explicitly ask to stop the questioning. Nor did defendant ask for an attorney. According to the transcript of the electronically-recorded interrogation, Davis told defendant that he was "under arrest for the traffic summonses." Davis proceeded to read defendant his Miranda rights. After defendant verbally waived his rights and signed the waiver form, Davis asked defendant if he knew why he was there. Defendant answered, "[t]he warrants." One of the detectives responded, "traffic warrants out of . . . Irvington," and that, "[y]ou're under arrest for those warrants." A-4063-18 9 Immediately after that initial exchange, Nero told defendant, "Detective Davis wants to talk to you about something else." Davis then asked defen dant if he was familiar with the nightclub. After telling the detectives that he occasionally patronized the nightclub and was "friendly" with the owners, a detective started to ask defendant about "the last time [he was] there." Defendant interrupted the question and said, "I heard what happened." The detective asked what defendant had heard, and defendant asked, "[a]re you questioning me about that?" The detective asked again what had happened, and defendant answered, "they said some Mexican dude threw . . . some gasoline on (indiscernible)." Defendant told detectives that the last time he had been at the nightclub was the month before, in July. They asked defendant for details about his last visit there. Defendant told the detectives that he had left the nightclub with a female employee to go to a motel. The following exchange occurred between defendant and one of the detectives: DEFENDANT: Maybe the girls took his money. Maybe he came back, he threw a little f[**]king gasoline on the f[**]king thing. Everybody says, Hey man, they must have did something. They say, Yeah, but oh, did you see what they did to the sign? I said, Yeah. But yous [sic] be robbing people up in there. I said, Yous [sic] be robbing people. A-4063-18 10 DETECTIVE: What do you mean robbing? Like— like beating them for drinks or robbing them— DEFENDANT: They . . . take their money. .... DEFENDANT: They steal from them. DETECTIVE: Who, the chicks or the—or— DEFENDANT: Yeah, the chicks. Defendant continued to tell the detectives how he did not like how the nightclub treated some customers and how it "robs" its customers: DEFENDANT: Some of them they—after they spend all their money, sometimes the girls, when they don't want a—a lap dance or stuff like that, they get the kid thrown out. Sometimes they get the guy thrown out for nothing, man,— DETECTIVE: Right. DEFENDANT: —after he spends 2 or 300 f[**]king dollars. They get him thrown out for nothing. Come on. You . . . you know that's not good karma, man. You know, you can't be doing them things. And then that's why things like that happen. You know. Lucky . . . whoever it was. All right? It had to be something that they did. And there's no question about it. A-4063-18 11 DETECTIVE: Something that the bar did? That's—that's why— DEFENDANT: The girls or . . . something in it. You know. The gir [sic]—not—not the bouncers and stuff 'cause . . . maybe they're rough, whatever, maybe, whatever. You know. But the things that they do, you know, there's always going to be backlash, and the f[**]king guy that f[**]king come in there with a f[**]king pistol. Defendant also told the detectives that he saw a dancer ask a customer if he wanted a lap dance, and the customer declined. The dancer went over to a bouncer and the bouncer made the customer pay and then kicked him out. Defendant speculated that the dancer told the bouncer that the customer had received a lap dance but did not pay. Defendant told the detectives that it had never happened to him but that "one day you're going to do that to the wrong person." Defendant told the detectives that it had never happened to him because the nightclub's employees respect him, and that "if somebody would do something to me like that and I had to retaliate, I won't throw gasoline." One of the detectives asked defendant what he would do, and defendant answered: I'd buy me the biggest f[**]king gun . . . and you won't be sitting here telling me how I threw a little gasoline upside the f[**]king wall. You'd be ready to kill me out in the f[**]king streets. Because at that A-4063-18 12 time, I would have went in there and raked everybody. I'm not throwing f[**]king gasoline . . . . If somebody does something to me, I will take care of it. Not like that. At that point, Davis told defendant that they had video recordings and still photographs taken from those videos. They first showed defendant a screenshot photo of a man they alleged was him, taken from inside the nightclub. They then showed defendant a photo of the same man leaving the club with a woman. After defendant again told the detectives that he had nothing to do with the fire, they showed him more screenshot photos and said, "[y]ou got that same hat on, the same white sneakers, same blue t-shirt, and the jeans walking with a gas can, walking across the street." Defendant denied that he was the person depicted in the exterior photos. The detectives told defendant that the person in the exterior screenshot was wearing the same clothing that defendant was wearing in the photos of him inside the club from earlier that night, but defendant continued to deny that he was the person depicted with the gasoline can. The detectives told defendant, "[w]e know you did it 'cause we got you on video. It's not like we made this up, bro. We got you on video going into the . . . [motor lodge] with the same chick with your car. We just want to know why." Defendant replied, "I don't know . . . . [Maybe] she stole some A-4063-18 13 money from the dude." Defendant then posited that "maybe she stole $2 ,000 from the guy. Maybe the guy got mad." The detectives responded: No, no. The guy is you on the video setting the fire. That's . . . without question . . . . We got you on video. We have you going into the Irvington Motor Lodge. We have the girl, who said, Yeah, I left with him. How do you think we . . . figured all this shit out? There's four cameras—five cameras outside. .... And there's a camera right across the street. It shows you walking up [on] Augusta [Street]. You threw a Molotov cocktail first. That didn't work. Then you come back with the gas can. We . . . already know the deal. We already know the rest of the fire. You did the fire. We're—that's not the question. We want to know why. Were you pissed off at the owner? Defendant again denied that he was the person shown in the video and said that he was "just saying that maybe the guy . . . got mad. . . . [M]aybe they stole $2,000 from him." After defendant repeated that $2,000 might have been stolen, Davis asked him why he chose $2,000 as the number. Defendant replied, "I'm just making . . . a rough estimate what . . . they probably stole from him. I . . . I don't know." One of the detectives next told defendant that they had an "entire video of [defendant] walking across the street . . . splashing the gasoline, everything" and that they had been showing him screenshots from that video. Defendant denied splashing gasoline or setting the fire. The detectives again told A-4063-18 14 defendant that the video shows him "really, really clear" and that he left in a "distinct" car and returned later that night in the same car. The detectives continued to tell defendant that the video showed it was him and asking why he did it, and defendant repeatedly denied that he was the person in the video. At one point, defendant said, "This is a f[**]king nightmare . . . . You know what I mean? It was a f[**]king nightmare, bro." He also said, "I'm not saying I did it . . ." and that he was "going to lose [his] wife regardless" because he was going to jail. Defendant again suggested that the nightclub had robbed someone of their money and that was why the robbery victim burned the sign. He also repeated that he was going to lose his wife and "lose everything." Toward the end of the interrogation session, the detectives told defendant he was going to be charged with aggravated arson. While imploring the detectives not to charge him, defendant indicated that he was willing to continue to talk about the arson charge, saying "All right then. Let—let's talk." The detective explained that he had already been under arrest for the traffic warrants but that he would now be charged with aggravated arson. He told defendant that the paperwork for the arson charge had not been prepared yet but they were going to re-administer the Miranda warnings. The detectives A-4063-18 15 then read defendant his Miranda rights anew. Defendant confirmed that he understood those rights and signed the waiver form. After being read his rights a second time, defendant kept asking the detectives if they were still going to charge him, imploring them not to do so. The detectives, meanwhile, tried to get an explanation from defendant for his alleged actions. Defendant told them that there was no one else involved. He continued to ask the detectives if he was still going to be charged with arson and when the detectives told him yes, defendant replied that they were "killing [him]," and that they were "killing [his] life." During a break when the detectives briefly left the room, defendant said to himself, "God, what did I do that for? That was f[**]king arson, man. What the f[**]k did I do? My dogs. Losing everybody." 4 When the detectives returned, defendant repeated his concerns about losing his wife and job but did not say anything further regarding the arson. B. 4 The interrogation was electronically recorded in accordance with Rule 3:17. The transcript indicates that the electronic recording system remained active when the detectives exited the interrogation room, leaving defendant alone. It is not disputed that defendant was talking to himself when he made the incriminating admissions. Defendant does not contend that it was unlawful for police to record him when he was left alone in the interrogation room. A-4063-18 16 On December 1, 2017, the trial court issued a detailed oral decision. The court found Detective Davis to be a credible witness, noting that he "maintained his composure and offered reasonable interpretations which w ere supported by the transcript in evidence." The court found that at the time of the custodial interrogation, defendant was sixty years old and showed no signs of mental or cognitive impairment. The court found that the detectives "properly and thoroughly advised defendant of his rights and assured he understood." The court noted that they read defendant his rights twice, that defendant read the rights aloud himself, initialed the form acknowledging his rights, and signed the Miranda warning statement. The court found that defendant never requested an attorney, expressed an unwillingness to speak with the detectives, or demonstrated a lack of understanding as to his rights or the consequences of waiving those rights, noting that to "the contrary, [he] affirmatively answered yes . . . when asked whether he understood each right." The court rejected defendant's argument that he did not knowingly and intelligently waive his rights because he thought at the start of the interrogation that the questioning would be about the traffic warrants for which he had been arrested. The court found that the transcript "negated" that A-4063-18 17 argument because immediately after the detectives read defendant his Miranda rights, they explained to him that they wanted to talk about something other than the warrants. The court noted that when the detectives told defendant that they wanted to ask him about the nightclub, defendant did not ask to stop the interrogation, but "rather willingly expanded upon his connection to the establishment and his awareness of the fire." The court concluded that "[b]y no means was defendant misled or unaware of the nature of the questions." The court further found that defendant's statements regarding the nightclub and the fire were not induced by questions about the traffic warrants, noting "the two [subjects] were mutually exclusive." The court also found that the record did not support defendant's argument that he was "mentally exhausted." The court addressed defense counsel's argument that defendant had described the interrogation as "an F'ing nightmare." The court found that defendant was not describing the interrogation, but rather was talking about how "his . . . affair may have a significant negative impact on his life." The court thus concluded that it was "clear that . . . defendant was expressing his sentiments about the overall predicament of possibly getting a divorce and being incriminated by the crimes, not his thoughts about the interrogation process." A-4063-18 18 Considering the totality of the circumstances, the court found it was "clear . . . defendant understood his rights and made a deliberate choice to waive those rights knowing the consequences of such a decision." The court thus concluded that defendant voluntarily, knowingly, and intelligently waived his rights, the waiver was valid, and the statement was admissible. C. The gravamen of defendant's argument on appeal is that the detectives who conducted the custodial interrogation violated his Fifth Amendment rights by failing to inform him during the Miranda waiver colloquy that he was suspected of and would eventually be charged with aggravated arson. We begin our analysis by acknowledging the legal principles governing this appeal. As our Supreme Court recently reiterated in State v. Sims, "[t]he privilege against self-incrimination, as set forth in the Fifth Amendment to the United States Constitution, is one of the most important protections of the criminal law." __ N.J. __, __ (2022) (slip op. at 23) (quoting State v. Presha, 163 N.J. 304, 312 (2000)). The Court explained that New Jersey law "maintains 'an unyielding commitment to ensure the proper admissibility of confessions.'" Id. at __ (slip op. at 24) (quoting State v. Vincenty, 237 N.J. 122, 132 (2019)). Accordingly, "[w]hen faced with a trial court's admission of police-obtained statements, an appellate court should engage in a 'searching A-4063-18 19 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)). An appellate court's review of a trial court's factual findings at an evidentiary hearing is limited. State v. Hubbard, 222 N.J. 249, 269 (2015). As the Court reaffirmed in Sims, "[w]hen we review a trial court's decision on a motion to suppress . . ., we defer to the factual findings of the trial court if those findings are supported by sufficient credible evidence in the record." __ N.J. at __ (slip op. at 23) (citing State v. S.S., 229 N.J. 360, 374 (2017)). In contrast to the deference we owe to a trial court's factual findings, a trial court's interpretation of the law and "the consequences that flow from established facts are not entitled to any special deference." State v. Gamble, 218 N.J. 412, 425 (2014). The law is well-settled that "[a] confession obtained during a custodial interrogation may not be admitted in evidence unless law enforcement officers first informed the defendant of his or her constitutional rights." Sims, __ N.J. at __ (slip op. at 24) (alteration in original). For a defendant's waiver of Miranda rights to be valid, moreover, under New Jersey law, the State must prove beyond a reasonable doubt that the waiver was given knowingly, A-4063-18 20 voluntarily, and intelligently in light of all the circumstances. Ibid.; see also Presha, 163 N.J. at 313; State v. Nyhammer, 197 N.J. 383, 400–01 (2009). Aside from the requirement to comply with the per se prophylactic rule established in Miranda and its progeny, "[d]ue process also requires that the State 'prove beyond a reasonable doubt that a defendant's [statement] was voluntary and was not made because the defendant's will was overborne.'" State v. L.H., 239 N.J. 22, 42 (2019) (quoting State v. Knight, 183 N.J. 449, 462 (2005)). "There is substantial overlap between the factors that govern a court's determination of whether a Miranda waiver is valid and the factors that a court considers in its separate assessment of the voluntariness of a confession." State v. Tillery, 238 N.J. 293, 316–17 (2019). As a general matter, a statement is deemed to be voluntary if it is "the product of an essentially free and unconstrained choice by its maker." State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225–26 (1973)). When determining whether a statement is voluntary, the court examines "the totality of the circumstances to assess whether the waiver of rights was the product of a free will or police coercion." Nyhammer, 197 N.J. at 402. Factors to consider include the defendant's "age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether A-4063-18 21 physical punishment and mental exhaustion were involved." Hreha, 217 N.J. at 383 (quoting State v. Galloway, 133 N.J. 631, 654 (1993)). Additional considerations include whether the defendant had previous encounters with law enforcement and the amount of time that elapsed between the Miranda warnings and the defendant's confession. Ibid. As we will explain, the breadth and scope of relevant circumstances is expansive and includes the information police provide to, or withhold from, the interrogee. In Nyhammer, our Supreme Court firmly embraced the principle that police are not required to "'supply a suspect with a flow of information to help him [or her] calibrate his [or her] self-interest in deciding whether to speak or stand by his [or her] rights' because 'the additional information could affect only the wisdom of a Miranda waiver, not its essentially voluntary and knowing nature.'" 197 N.J. at 407 (quoting Colorado v. Spring, 479 U.S. 564, 576–77 (1987)). The Court reiterated that principle in State v. A.M., holding that "a valid waiver does not require that an individual be informed of all information useful in making his [or her] decision." 237 N.J. 384, 398 (2019) (quoting Nyhammer, 197 N.J. at 407). Recently, our Supreme Court considered whether to expand the Miranda warnings/advisements concerning criminal charges that have not yet been filed. In Sims, the majority of the Court declined to adopt a new rule that A-4063-18 22 would require "police officers, prior to interrogation, to inform an arrestee of the charges that will be filed against him [or her]." __ N.J. at __ (slip op. at 2) (emphasis added). In that case, the defendant asserted that his Miranda rights were violated because the police did not tell him why he was arrested. Id. at __ (slip op. at 13). The majority confirmed that under New Jersey's police interrogation jurisprudence, if a complaint-warrant or an arrest warrant has been issued against a suspect whom law enforcement seeks to interrogate, the officers must disclose that fact to the interrogee and inform him or her in a simple declaratory statement of the charges filed against him or her before any interrogation. Id. at __ (slip op. at 23–28) (relying on the rules announced in Vincenty, Nyhammer, and A.G.D.5). The majority in Sims declined to expand that categorical rule to require officers to tell an arrestee, not subject to a complaint-warrant or an arrest warrant, what charges he or she faces before interrogating him or her. Id. at __ (slip op. at 32). The majority thus reaffirmed that police are not required to advise an interrogee that he or she is a suspect of a particular crime when administering Miranda warnings. The majority explained, "[a]s we noted in Nyhammer, 'we are not aware of any case in any jurisdiction that commands 5 State v. A.G.D., 178 N.J. 56 (2003). A-4063-18 23 that a person be informed of his suspect status in addition to the Miranda warnings or that requires automatic suppression of a statement in the absence of a suspect warning.'" Id. at __, n.2 (slip op. at 28, n.2) (quoting Nyhammer, 197 N.J. at 406). Importantly for purposes of this appeal, the Sims majority emphasized that "[g]enerally, when a court determines whether an interrogee has knowingly, intelligently, and voluntarily waived his [or her] right against self- incrimination in the setting of a custodial interrogation, it considers the t otality of the circumstances." Id. at__ (slip op. at 24). The majority reaffirmed, "[o]nly in the most limited circumstances have we applied a per se rule to decide whether a defendant knowingly and voluntarily waived Miranda rights." Id. at __ (slip op. at 25) (quoting Nyhammer, 197 N.J. at 403). The Court explained that A.G.D. was one of those rare circumstances in which it had "departed from the totality-of-the-circumstances rule and required police officers to inform a suspect that a criminal complaint has been filed or an arrest warrant has been issued before interrogating him [or her]." Id. at __ (slip op. at 25) (citing A.G.D., 178 N.J. at 68–69). A-4063-18 24 In practical effect, in A.G.D. and Vincenty the Court established new Miranda warnings/advisements, 6 creating a "bright-line rule" automatically requiring suppression if police interrogators fail to advise an interrogee that a complaint-warrant or arrest warrant has been issued (the A.G.D. rule), or fail to provide a simple declaratory statement of the essential nature of those filed charges (the Vincenty rule). The Sims majority stressed that "[t]he rule announced in A.G.D. is clear and circumscribed." Id. at __ (slip op. at 27) 6 As the Court explained in Tillery, In Miranda, the United States Supreme Court held that before law enforcement subjects a suspect to custodial interrogation, the suspect must be advised: (1) "that he [or she] has the right to remain silent"; (2) "that anything he [or she] says can be used against him [or her] in a court of law", (3) "that he [or she] has the right to the presence of an attorney"; and (4) "that if he [or she] cannot afford an attorney one will be appointed for him [or her] prior to any questioning if he [or she] so desires." Miranda imposes a fifth requirement: "that a person must be told that he [or she] can exercise his [or her] rights at any time during the interrogation." [238 N.J. at 315 (internal citations omitted).] We add that our Supreme Court expanded the list of per se required advisements in State v. Reed, holding that, "[w]hen, to the knowledge of the