State v. James P. Kucinski (A-58-15) (076798)
Argued October 26, 2016 -- Decided January 30, 2017
Solomon, J., writing for a unanimous Court.
In this appeal, the Court considers whether cross-examination regarding facts to which defendant testified at trial, but omitted in his statement to police, was proper.
Defendant was arrested and taken to police headquarters for questioning about the bludgeoning death of his brother, John. Defendant was advised of his Miranda rights and he requested an attorney. The officers stopped the interrogation and met with their supervisor. After approximately eighty minutes they returned to the interview room and advised defendant that he was going to be charged with murder. Defendant then asked if he could speak with the officers, stating “I’m gonna tell you the truth.” He was re-read his Miranda rights, which he waived.
Defendant explained that a few weeks earlier a fight had occurred between him and his brother. When the officers attempted to redirect the discussion to “how it started today” -- the day of John’s death -- defendant responded, “Ah, well let’s not talk about that part.” He then shifted the dialogue to other topics. In response to inquiries about how John injured defendant, he stated, “Like I said, we’ll forget about that part.” Defendant responded to a series of questions about events leading up to the fight and the injuries he sustained. As the interrogation went on, defendant continued to turn to other topics and to evade answering questions directly. Several times throughout the interrogation defendant answered questions with “I don’t know.” When asked how defendant felt about John’s death, he said he would “rather  just see a lawyer,” and the interrogation ended.
Before trial, defendant moved to suppress his statement to police and argued that the officers did not honor his invocation of the right to counsel. The court denied defendant’s suppression motion, and the case proceeded to trial. At trial, the prosecutor asked one of the officers if defendant spoke in detail about the events on the day John died and if defendant was given an opportunity to “explain what happened that day.” When defense counsel objected, the trial judge sustained the objection but held that if defendant testified, the prosecutor would be permitted to cross-examine him on inconsistencies between his trial testimony and statements to police.
Defendant elected to testify at trial and claimed to have acted in self-defense. On cross-examination, over defense counsel’s objection, the prosecutor was permitted to question defendant about details defendant had testified to in his direct examination that contradicted what he said in his post-arrest statement to police. The prosecutor focused on details that defendant testified to but failed to mention to police during his interrogation. After further questioning by the prosecutor, defense counsel moved for a mistrial. The trial court denied the motion but instructed the jury that defendant’s right to remain silent should be limited to assessing defendant’s credibility and may not be used to make the determination of guilt. Defense counsel did not object.
When the trial resumed, defense counsel informed the court that the limiting instruction advised the jury that defendant’s silence could be used for impeachment purposes. Counsel requested a clarifying instruction to fix this error, which the trial court issued. This instruction was repeated, without objection, during the final jury charge. The jury found defendant guilty of passion/provocation manslaughter, as well as third-degree possession of a weapon for an unlawful purpose.
The Appellate Division reversed defendant’s conviction and remanded for a new trial, determining that the prosecutor’s questions on cross-examination were improper. The panel found that defendant invoked his right to remain silent by telling the police that he did not want to talk about certain subjects and answer certain questions. The panel reasoned that, accordingly, the statements could not be used for any purpose, including impeachment. Further, the Appellate Division found the trial court’s instructions to the jury were fatally flawed.
The Court granted the State’s petition for certification. 224 N.J. 282 (2016).
HELD: Defendant waived his right to remain silent and therefore the State permissibly questioned defendant on cross-examination about the inconsistencies between his post-arrest statement to police and his statement on direct-examination at trial.
1. The United States Supreme Court first considered whether a defendant’s pretrial silence could be used to impeach his credibility on cross-examination at trial in United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975). A year later, this Court considered a similar question in State v. Deatore, 70 N.J. 100, 108-09 (1976), and held that a defendant who remains silent “at or near the time of his arrest” cannot be cross-examined about that silence if he subsequently testifies to an exculpatory version of events at trial. In State v. Lyle, 73 N.J. 403 (1977), this Court again incorporated U.S. Supreme Court authority and concluded that “the State’s use of a defendant’s post-arrest silence for purposes of impeaching his exculpatory defense violates due process” and is “improper irrespective of whether [Miranda] warnings are given.” Id. at 409-10 (citation omitted). The Court applied the general principles of Lyle and Deatore in State v. Muhammad, 182 N.J. 551, 568 (2005), where the Court explained that “by speaking with the police, a suspect does not waive his right to invoke the privilege and remain silent at some later point.”
2. With respect to cross-examination of a defendant on factual inconsistencies between his testimony at trial and his pretrial statement, the Court has held that “it is not an infringement of a defendant’s right to remain silent for the State to point out differences in the defendant’s testimony at trial and his or her statements that were freely given.” State v. Tucker, 190 N.J. 183, 189 (2007).
3. When a defendant invokes his or her right to remain silent, the interrogation must cease, at least until some time has lapsed and the defendant is reread his Miranda rights. That being said, even if a defendant is successful in invoking his or her right to remain silent about a particular subject, this right is waived if the defendant discusses, of his or her own volition, that very topic just moments later.
4. In the present case, defendant waived his right to remain silent. Defendant was cognizant of his Miranda rights and clearly and unambiguously invoked his right to counsel when police originally administered Miranda warnings. However, after first invoking his right to counsel, it was defendant who asked to speak with officers so that he could “tell [them] the truth.” After acknowledging that he had fought with his brother, defendant avoided questions by saying “[a]h, let’s not talk about that part,” “we’ll forget about that part,” “it doesn’t matter,” and “I don’t remember.” Considered in context, defendant’s refusal to answer certain questions was not an attempt to end the dialogue, but rather was “part of an ongoing stream of speech,” which included information about the altercation and defendant’s family disputes. Most importantly, defendant voluntarily provided details about the altercation that led to John’s death—the very subject about which he previously said, “let’s not talk about that part.” In other words, defendant told investigators about his recollection of the altercation with John—he thus spoke on that subject
5. Because defendant waived his right to remain silent, cross-examination regarding facts to which he testified at trial, but omitted in his statement to police, was proper. During interrogation, defendant claimed his injuries were caused by John biting him. Defendant’s story changed during his testimony when he claimed John stabbed him with a screwdriver and he was forced to defend himself. Therefore, the State’s cross-examination sought to highlight the inconsistency between defendant’s statement to police during interrogation and his testimony on direct examination. This inconsistency is a permissible area for cross-examination.
6. Because defendant did not invoke his right to remain silent, any error in the trial court’s instruction to the jury, to which defendant did not object, was harmless.
The judgment of the Appellate Division is REVERSED and defendant’s conviction is REINSTATED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion.