Full Opinion

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3066-23 STATE OF NEW JERSEY, Plaintiff-Respondent, v. JIMMY DAVIS, Defendant-Appellant. Argued October 26, 2026 – Decided November 10, 2026 Before Judges Sabatino and Torregrossa-O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 22-07-1992. Michael J. Kenney, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Michael J. Kenney, of counsel and on the brief). Maura M. Sullivan, Assistant Prosecutor, argued the cause for respondent (Grace C. MacAulay, Camden County Prosecutor, attorney; Maura M. Sullivan, of counsel and on the brief). PER CURIAM This sexual offense prosecution arose out of a 9-1-1 call placed by an adult female from defendant Jimmy Davis's residence after he had an argument with her and, according to the alleged victim, digitally penetrated her. Defendant was tried by a jury and found guilty of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). He was acquitted of other more serious charges. The trial court imposed a sentence of three years' probation, subject to 180 days of confinement to be served on weekends. In this direct appeal, defendant's arguments solely concern the admissibility of statements that he made to investigating law enforcement officers. He raises the following point in his brief: THE COURT ERRED BY ADMITTING DAVIS'S RECORDED STATEMENT BECAUSE THE STATE FAILED TO ESTABLISH BEYOND A [1] REASONABLE DOUBT THAT THE MIRANDA WAIVER AND SUBSEQUENT STATEMENT WERE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY MADE. Defendant's brief amplifies this argument, contending essentially that: (1) statements made by police officers tainted his subsequent Miranda waiver and (2) that he was unconstitutionally subjected to a "two-step" interrogation. 1 Miranda v. Arizona, 384 U.S. 436 (1966). A-3066-23 2 For the reasons that follow, we reject defendant's contentions and affirm. I. Succinctly stated, the record presents the following chronology of events. On July 13, 2021, at about 12:30 a.m., Police Officers Robert Gavares and Nicholas Barrett arrived at defendant's Camden residence in response to a 9-1-1 call placed by his intermittent girlfriend C.J. 2 When the officers arrived, they were invited into the home by C.J., who was in the living room/kitchen area . Defendant was sitting on a couch in the living room and smoking. Officer Barrett took C.J. outside of the residence on the porch to speak to her , while Officer Gavares spoke with defendant in the living room. 3 Shortly after Barrett took C.J. outside, defendant got up from the couch and walked into the bedroom. He turned away from Gavares, as the officer asked him, "Alright, what's going on man?" In response to defendant leaving the room, Gavares asked him to "Come back in here for me, boss." Defendant answered, "Yeah, I'm coming, I had to get an ashtray." He returned from the 2 To protect the identity of the victim, we utilize initials for her. R. 1:38- 3(c)(12). 3 We have been supplied on appeal with both body-worn camera ("BWC") videos and with defendant's ensuing recorded statement at the police station. Counsel have stipulated on appeal to the wording of key passages from the BWC audio tracks. A-3066-23 3 bedroom with an ashtray and sat back down on the couch in front of Gavares . When asked "What's up" by Gavares, defendant responded that he and C.J. had "gotten into it" because he saw she was texting a male neighbor. Defendant told Gavares that C.J. was the person who called the police, and that they had been together for ten years. As Gavares spoke to defendant, he shined his flashlight on defendant's torso, apparently because it was late at night and the living room of the residence was poorly lit. While Gavares spoke to defendant in the house, C.J. told Barrett outside that defendant had choked and slapped her, and that he had digitally penetrated her vagina and rectum. Shortly afterwards the officers traded places and Gavares went outside to talk with C.J. while Barrett went inside to talk with defendant. Barrett asked him, "Why are we here tonight?" Defendant answered that the couple had been pushing and grabbing each other on the bed before C.J. called the police. Barrett asked defendant if he "tried to sexually assault [C.J.] in any way." Defendant vehemently denied that accusation, explaining he had rubbed C.J.'s side and stopped when she said "no means no." Barrett did not question defendant further. After the two officers had spoken with C.J. and defendant individually, A-3066-23 4 they conferred in front of the residence. They discussed whether, based on C.J.'s allegations, it was necessary to bring the two down to the police station to be interviewed. Upon confirming with C.J. that she wanted to press charges, Gavares again went inside to talk with defendant. Gavares asked defendant if he had "grab[bed] [C.J.] inappropriately or anything like that." Defendant again denied touching C.J. inappropriately. Shortly afterwards, Gavares told defendant he was being taken to the police station and asked if he had anything on him. Defendant responded he had a pocket knife. He removed the knife from his pocket and placed it on the kitchen table. While defendant removed the knife, Barrett explained , "So we just gotta bring you down [to the station] because of what she's accusing you of. You guys have to get interviewed by both detectives. They get your side, they get her side, they make a decision." Defendant began gathering things to bring to the police station, including an overshirt and socks that he got from the bedroom. Gavares did not restrain defendant as he went into the bedroom but did follow him into the other room. Defendant then asked if he was being "booked." Gavares responded, "You're gonna sit down on a bench until the detectives talk to you." A-3066-23 5 Defendant was handcuffed and taken out of his home to Gavares's police car. As he was being walked to the car, defendant asked if he was being charged, to which Gavares responded, "I mean the detectives are going to have to speak to you and determine what's going on with that. Because that's not charged on our part, that's her [the alleged victim] signing charges against you." After placing defendant in the back seat of his patrol car, the officer appeared to handle items in the front passenger seat, as part of the procedure for placing defendant in the car. Once Gavares completed these steps, he opened the back door of the car. He continued explaining the procedure to defendant, as follows: OFF. GAVARES: What she's saying is ah, I mean it's a serious crime. That's why the detectives gotta speak to you. If the charges are typed up, it's going to be at the detective level, it's not going to be at our level. Do you understand that? DEFENDANT: So what's she trying to say, I raped her? OFF. GAVARES: I mean, it's just, the detectives are going to explain everything to you because certain things change like, what kind of charge it would be. Whether it would be like sexual assault, rape, or nothing. That's why—-Look look, listen. They're going to get your side, and they're going to get her side. And then they're going to make their determination. So it ain't like . . . you're getting locked up and I'm calling the judge right now and putting the charges on you. The A-3066-23 6 detectives gotta interview you both first and figure out what's going on. After this conversation, Gavares drove defendant to the police station. Formal Interview with Detective at the Police Station At the police station, defendant was handcuffed to a bench and questioned by Police Detective Sean Peterson at approximately 2:00 a.m. that same night.4 After the detective obtained identifying information from defendant, the following recorded conversation ensued: DET. PETERSON: All right. All right. So, obviously, you had questions for me. I got some questions for you, just to figure out about what's going on. All right? DEFENDANT: Mm-hm. DET. PETERSON: Before I ask you those questions, though, I have to read you your rights. Just something I have to do. Have you ever been read them before? DEFENDANT: (Indiscernible) DET. PETERSON: Okay. So this is seven yes-or-no questions. DEFENDANT: Mm-hm. 4 The State supplied a "listening aid" for use by the jury at defendant's trial. However, both parties in their appellate briefs utilize the transcript generated from the Miranda hearing that took place on the first day of defendant's trial. We quote from that hearing transcript instead of the listening aid. A-3066-23 7 DET. PETERSON: Just answer yes or no after each one, and then we'll go from there. Okay? The detective then read to defendant each of the numbered questions, and elicited his affirmations. DET. PETERSON: If you have any questions, though, make sure you ask, because I'll try to explain it better for you. All right. So, before I ask you any questions, it is my duty to advise you of your rights. So, number one. You have the right to remain silent. Do you understand? DEFENDANT: Mm-hm. DET. PETERSON: Yes? DEFENDANT: Yes. DET. PETERSON: All right. Number two. Anything you say can, and will, be used against you in court. Do you understand? DEFENDANT: Yes. DET. PETERSON: Number three. You have the right to consult with an attorney before you make any statement, or answer any questions; and you may have him present with you during questioning. Do you understand? DEFENDANT: Yes. DET. PETERSON: Number four. If you cannot afford, or otherwise pay, an attorney, you may have one appointed to you by the Court. Do you understand? A-3066-23 8 DEFENDANT: Yes. DET. PETERSON: Number five. If you decide to answer questions now, with or without an attorney, you still have the right to stop the questioning at any time, or to stop the questioning for the purpose of consulting an attorney. Do you understand? DEFENDANT: Yes. DET. PETERSON: Number six. However, you may waive your right to remain silent, and your right to consult with an attorney; and you may answer questions, or make a statement, without consulting an attorney, if you so desire. Do you understand? DEFENDANT: Yes. DET. PETERSON: The last one, number seven. Now, having been advised of your rights, and understanding them, do you -- do you desire to waive those rights, and answer questions or give a statement? DEFENDANT: What do you mean by that? So – DET. PETERSON: So I'll read the question again another way. So number seven. Now, having been advised of your rights, and understanding them, do you desire to waive those rights, and answer questions or give a statement? Do you wish to speak to me about whatever happened tonight? DEFENDANT: Yes. Following this exchange, defendant signed the Miranda waiver form that Peterson had read from. A-3066-23 9 Defendant's explanation of events during the stationhouse interview did not differ greatly from what he had told Officers Gavares and Barrett. He recounted he had gotten into an argument with C.J. after seeing a text from the male neighbor on her phone. He told Peterson that the two had pushed each other and C.J.'s nose piercing had started bleeding. When asked about C.J.'s allegations of sexual assault, defendant said that he had touched her while in bed together but did not penetrate her after she said "no means no," but he admitted he continued to "rub her" on her stomach and breasts. However, defendant did say that before the altercation his fingers had "slipped down there" in the kitchen while cooking dinner with C.J. Indictment Subsequently, defendant was indicted and charged with two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and one count of fourth- degree criminal sexual contact, N.J.S.A. 2C:14-3(b). Miranda Hearing The State moved in limine to admit only defendant's formal recorded statement into evidence, and defendant opposed the motion. Notably, the State did not attempt to admit defendant's earlier statements when he was questioned at the house or while being escorted from it. The court heard testimony from A-3066-23 10 Peterson and also reviewed the video recording of defendant's formal statement. The court also viewed in chambers the BWC footage. The trial court granted the State's motion to admit the recorded statement. The court observed that "defendant clearly articulated his understanding of questions one through six" and appeared to understand Peterson's explanation of question seven. The court specifically found "nothing misleading" about the responding officers' statements at the scene or during transport and determined that the officers were explaining the next steps of the procedure to defendant rather than making false assertions that giving his version of events would benefit him. In addition, the court found that Peterson's characterization of the warnings as "just something [he had] to do," while "inartful", did not downplay the importance of the rights, because reading defendant his rights was something the detective "had" to do. Jury Trial Defendant's four-day jury trial took place in January 2024. Along with playing defendant's videotaped formal statement, the State additionally called Peterson, Gavares, and C.J. A-3066-23 11 C.J. specifically testified that defendant had ripped her bra and digitally penetrated her vagina and rectum, and after she said "no means no," defendant responded "this pussy belongs to me." Barrett was the only witness called by defendant to testify. The defense presented his testimony in an effort to show that police had failed to collect crucial evidence such as C.J.'s bra and the bed sheets, or to order a "SANE" kit. During summations, the State referred to defendant's statement to draw attention to the mocking way in which he described C.J. saying "no means no." The State also highlighted that defendant's account of the night's events corroborated C.J.'s in several ways. The State pointed out that defendant changed his story to say penetration may have occurred earlier in the night, after the detective insinuated medical technology could determine whether C.J. had been penetrated. In his closing argument, defense counsel argued the State had not met its heavy burden of proof, particularly as to penetration. Defense counsel also endeavored to minimize the significance of the recorded statement. A-3066-23 12 Verdict and Sentencing On January 30, 2024, the jury acquitted defendant of the first two counts of second-degree sexual assault, but convicted him of the third count, fourth- degree criminal sexual contact. On April 12, 2024, the trial court sentenced defendant to three years of probation and 180 days in prison to be served on weekends. This appeal followed. II. As we noted at the outset, the sole issues raised on appeal concern the admission of defendant's Mirandized recorded statement at the police station. In essence, defendant contends the police officers at the scene made improper remarks to defendant that diluted the significance of the Miranda warnings the detective later provided at the police station, thereby tainting his stated waiver of his rights. We examine this issue guided by well-established principles. In reviewing a trial court's ruling on the admissibility of a defendant's statements made to law enforcement, an appellate court "defer[s] to the trial court's factual findings that are supported by sufficient credible evidence in the record and will not disturb those findings unless they are 'so clearly mistaken that the interests A-3066-23 13 of justice demand intervention and correction.'" State v. Rivas, 251 N.J. 132, 152 (2022) (quoting State v. S.S., 229 N.J. 360, 374 (2017)); see also State v. Bullock, 253 N.J. 512, 515 (2023). This deferential standard of appellate review applies "even when the trial court's findings are premised on a recording or documentary evidence . . . ." State v. Tillery, 238 N.J. 293, 314 (2019). By contrast, "the interpretation of law 'and the consequences that flow from established facts' are not entitled to deference and are reviewed de novo." State v. Carrion, 249 N.J. 253, 279 (2021) (quoting State v. Hubbard, 222 N.J. 249, 263 (2015)) (emphasis added). Given the importance of a defendant's right against self-incrimination, "an appellate court should 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)) The basic principles of the Miranda doctrine in safeguarding a defendant's privilege against self-incrimination during a custodial interrogation have been repeatedly expounded in case law and statutes. "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. A-3066-23 14 2A:84A-19, and evidence rule, N.J.R.E. 503." State v. Diaz, 470 N.J. Super. 495, 402-03 (App. Div. 2022) (quoting S.S., 229 N.J. at 381-82). In Miranda, 384 U.S. at 436, the United States Supreme Court held that in order to protect the Fifth Amendment right against self-incrimination, a person may not be subjected to custodial interrogation by law enforcement unless that person is apprised of certain rights. Id. at 467. Miranda instructs that before law-enforcement officials subject someone to custodial interrogation, the person must be advised as follows: that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. [Id. at 479.] The procedural safeguards of the Miranda doctrine attach when a criminal suspect is subject to custodial interrogation. Oregon v. Mathiason, 429 U.S. 492, 495 (1977). Our Supreme Court has explained the two components of custodial interrogation as follows. "Custodial interrogation is defined as 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" State v. Tiwana, 256 N.J. 33, 41 (2023) (citing Miranda, 384 U.S. at A-3066-23 15 444). "[W]hether a suspect must be informed of the rights under Miranda depends on (1) whether the suspect is in police custody, and (2) whether police subjected the suspect to interrogation." Id. at 41-42 (citing Hubbard, 222 N.J. at 266). For purposes of our discussion we will assume, without deciding, that the questioning of defendant at the residence and while he was escorted to the police station amounted to custodial interrogations. We focus our analysis instead on whether the Mirandized interview of defendant at the police station was unconstitutional. That implicates the following principles. The State bears the burden of proving beyond a reasonable doubt that a defendant knowingly, intelligently, and voluntarily waived Miranda rights. The inquiry is fact-sensitive and turns on the totality of the circumstances, rather than on a bright-line rule requiring suppression whenever an officer makes an imperfect or arguably minimizing comment. State v. O.D.A.-C., 250 N.J. 408, 413, 423 (2022). Courts closely scrutinize statements by police that affirmatively contradict, minimize, or "disarm" Miranda warnings. As such, an officer may not characterize Miranda as a mere formality or imply that a signature merely confirms that rights were read when the form also conveys a waiver decision. A-3066-23 16 O.D.A.-C., 250 N.J. at 422; State v. Tillery, 238 N.J. 293, 319 (2019). The pivotal question is whether, despite such comments, the State proved a valid waiver from the totality of circumstances. For example, in O.D.A.-C., police officers repeatedly told a defendant that the Miranda warnings were "just a formality," and additionally misled him by telling him that what was said in the interrogation room would remain confidential, contradicting the warning that anything the defendant said could be used against him. O.D.A.-C., 250 N.J. at 414-16. Also significantly, the interviewing officers in O.D.A.-C. repeatedly told the defendant that speaking to them would benefit him. Id. at 416-17. The Supreme Court observed that the detectives had made too many repeated statements that undermined the Miranda warnings and therefore affirmed the suppression of defendant's statements. Id. at 425. In State v. Burno-Taylor, 400 N.J. Super. 581, 593-94 (App. Div. 2008), we suppressed a defendant's statement after police referred to the waiver form as a "silly little piece of paper" and pressured the defendant to speak to them for hours over his multiple refusals. We have also held that police officer must not answer a defendant's clarifying question in response to a warning in a way that is misleading or false. A-3066-23 17 See State v. Puryear, 441 N.J. Super. 280, 290 (App. Div. 2015) (ruling that it was misleading for an officer, when asked by a defendant what it meant that anything he said could be used against him, to respond that only lies could be used against him). Applying these principles here, we generally agree with the trial court's assessment that many of the officers' comments to defendant at the residence and in escorting him from there were largely accurate, if not precise, efforts to explain—in response to queries by defendant—what the anticipated process would be after he was taken to the police station. They correctly previewed that any charging decision would not be made until a detective considered the alleged victim's account and any other information. They also correctly explained that defendant was potentially facing serious charges. That said, we agree with defendant that the officers should not have intimated at the house that he would be expected to recount his version of events to the detective and tell his "side of the story." It surely would have been more accurate and preferable to tell him that he was not required to do so. However, the question before us is not whether the police should have administered Miranda warnings to defendant before he arrived at the police station. The State did not seek to admit his unwarned statements into evidence. Instead, the issue A-3066-23 18 is whether the officers' comments irremediably tainted the detective's subsequent formal questioning when detailed Miranda warnings were given. This assessment of taint implicates what our case law has described as a policy against two-step "question first, warn later" police interrogations. In State v. O'Neill, 193 N.J. 148, 180-81 (2007), our Supreme Court instructed that when police elicit incriminating information during a custodial interrogation and only afterwards administer Miranda warnings, "the admissibility of post- warning statements will turn on whether the warnings functioned effectively in providing the defendant the ability to exercise his state law privilege against self-incrimination." See also Bullock, 253 N.J. at 535 (applying O'Neill). The Court adopted in O'Neill a "non-exhaustive list of factors for courts to consider when assessing whether the warnings provided in the second interrogation functioned effectively[.]" Id. at 536. Those "O'Neill factors" are: (1) the extent of questioning and the nature of any admissions made by defendant before being informed of his Miranda rights; (2) the proximity in time and place between the pre- and post-warning questioning; (3) whether the same law enforcement officers conducted both the unwarned and warned interrogations; (4) whether the officers informed defendant that his pre-warning statements could not be used against him; and (5) the degree to which the post- warning questioning is a continuation of the prewarning questioning. A-3066-23 19 [O'Neill, 193 N.J. at 181.] "Though no one factor is dispositive, a court should give 'great weight' to whether the police 'informed a suspect that his admissions made prior to being given the Miranda warnings could not be used against him' because '[p]roviding that information would strongly suggest that the defendant made any post - warning incriminating statements knowingly, voluntarily, and intelligently. '" Bullock, 253 N.J. at 536, (quoting O'Neill, 193 N.J. at 181). "However, 'failure to give that instruction will not automatically render the defendant 's post- Miranda statements inadmissible.'" Ibid. (quoting O'Neill, 193 N.J. at 181). Therefore, "[i]n a two-step interrogation case, courts must view the totality of the circumstances in light of the relevant factors and then determine whether the unwarned questioning and admissions rendered the Miranda warnings ineffective in providing a defendant the opportunity to exercise the privilege." Id. at 536-37 (quoting O'Neill, 193 N.J. at 181-82). Applying the O'Neill factors here, we conclude the trial court did not err in determining that the officers' comments at the residence and in transporting defendant did not prevent Detective Peterson's thorough Miranda warnings at the police station from "functioning effectively." As to the first factor, the officers' questioning of defendant at the house A-3066-23 20 on matters of substance was not extensive. To be sure, the officers did ask defendant whether he had touched C.J. inappropriately, or had sexually assaulted her, and he emphatically denied doing so. Defendant also denied penetration, and asserted that he stopped when C.J. told him "no means no." He did admit to "rubbing" or "grabbing" C.J. (his actual words at that time are not clear), although the officers did not ask him to elaborate on that comment. On the whole, his answers were not sufficiently incriminatory to render his later Miranda waiver at the police station a nullity. Moreover, in evaluating the nature of their questioning, it should not be overlooked that the officers at the house were responding to a 9 -1-1 call of domestic violence, and that they had an obligation to assure the safety of the putative victim and assess preliminarily what had transpired. Second, the formal interrogation of defendant took place nearly two hours later, and at a different location. The later questioning was neither proximate in time nor place to the questioning at the house. Third, the same law enforcement officers did not conduct both the unwarned and warned interrogations. Officers Barrett and Gavares questioned defendant at the house, whereas Detective Peterson (who, unlike them, had not been at the house responding to the 9-1-1 call) conducted the formal questioning A-3066-23 21 at the station. The State did not capitalize on using a common interviewer to coerce or entice defendant to waive his rights. As for the fourth factor, the State concedes that the two officers did not inform defendant that his pre-warning statements could not be used against him. Although this factor is important, it is not dispositive. O'Neill, 193 N.J. at 181. Notably, this is not a situation comparable to O.D.A.-C. in which the police falsely told the defendant that what he said would remain confidential. 250 N.J. at 414-16. And, unlike in O.D.A.-C., the officers here did not repeatedly tell the defendant that speaking to them would definitely benefit him. Id. at 423. Fifth and lastly, the detective's post-warning questioning did continue delving into subject matters first raised by the officers, pre-warning, at the house. The degree of specificity in the later interrogation was greater, however. At best, this factor is neutral. On balance, duly considering these O'Neill factors, it was reasonable for the trial court to rule that the formal interrogation of defendant at the police station was not unconstitutionally tainted by the questioning at the scene that preceded it. A-3066-23 22 We therefore sustain the admission at trial of defendant's warned statements. Consequently, as that is the sole argument defendant raises on appeal, we affirm his conviction. Affirmed. A-3066-23 23