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Court Throws Out “Out-of-State” Confession on Appeal


by in Criminal Appeals

In this recent NJ criminal defense appeal, the Appellate Division affirmed the trial court’s suppression of the defendant’s statement given to out-of-state investigators.

State v. Carty, III, unpublished opinion, App. Div. Docket No. A-3117-09T4 (December 23, 2010) – Suppression of statements given during police interrogation in West Virginia affirmed.

“The judge found that, although Carty had initially agreed to participate in a polygraph, he clearly revoked his agreement after the discussion of the DNA evidence and his willingness to give the police a DNA sample…. The judge also concluded that the statements ‘which flowed from the polygraph examination’ occurred as a result of the officers’ disregard of Carty’s ‘clear and unequivocal partial revocation of his prior waiver’ and were therefore ‘tainted and defectively so.’… On appeal, the State argues that the motion judge erred in finding that Carty had invoked his right to remain silent when he said: ‘No polygraph, ’cause DNA is all you need.’ As a consequence, the State argues, the judge also erred in suppressing the statements Carty made thereafter…. The polygraph was an integral part of Musick and Majane’s overall plan for Carty’s interrogation, and was the vehicle for the continuation of his interrogation once their initial questioning had been completed without any admission of guilt. In addition, questions about Attenborough’s murder were an integral part of the polygraph examination, as explained by Merrill before he started the examination. The motion judge’s finding that Carty revoked his initial agreement to undergo the polygraph examination is fully supported by the record. In fact, Carty did exactly the same thing during the initial investigation following the murder, as Musick and Majane were aware…. The judge’s further finding that Musick and Majane unduly pressured Carty into changing his mind, rather than respecting his decision or seeking to clarify it, is also supported by the record. As a result, we find that the record supports the trial judge’s conclusion that a second administration of Miranda rights was warranted…. Under the totality of the circumstances presented by this record and in light of the judge’s findings, we agree with the judge that that the defective re-administration of the Miranda rights tainted the subsequent statements by Carty, and would have done so even if the re-administration were unnecessary.”






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