STATE OF NEW JERSEY,
CASEY T. ROBINSON,
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
Before Judges Sabatino and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-10-2411.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
James P. McClain, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief).
Following the denial of his motion to suppress statements he made to the police, defendant Casey T. Robinson entered a conditional guilty plea to aggravated manslaughter, N.J.S.A. 2C:11-4a, pursuant to a negotiated agreement and was sentenced to twenty-five years in state prison subject to the periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. He appeals pursuant to Rule 3:9-3(f), contending the court erred in denying his motion and, in the alternative, that his sentence is excessive. He frames the issues as follows:
DEFENDANT'S MOTION TO SUPPRESS HIS CONFESSION SHOULD HAVE BEEN GRANTED; HE PLAINLY ASSERTED BOTH HIS RIGHT TO COUNSEL AND HIS RIGHT TO SILENCE AND NEITHER WAS HONORED BY THE INTERROGATING DETECTIVES, WHO SIMPLY PLOWED AHEAD WITH NO BREAK IN THE INTERROGATION UNTIL, ULTIMATELY, DEFENDANT GAVE IN AND AGREED TO GIVE A STATEMENT.
THE DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND THE ISSUE OF RESTITUTION SHOULD BE REMANDED FOR AN ABILITY-TO-PAY HEARING.
Because we agree that defendant's interrogators failed to scrupulously honor his repeated requests for counsel as the law requires, we reverse the denial of his motion to suppress his statements and remand for further proceedings.
These are the essential facts. The police arrested defendant on May 10, 2012 at his home in Atlantic City. Officers took him into custody when he answered the door and reached for a gun in response to their request to question him about a shooting that had taken place several hours earlier. The police transported him to the Atlantic County Prosecutor's Office and led him to an interrogation room to await questioning. The DVD of the interrogation shows Detective Graham and Sergeant Furman entering the room, and the detective removing defendant's handcuffs as the sergeant began to explain why they wanted to talk to him.
The sergeant began the interrogation by stating the officers did not "know what exactly happened out there, but, you know, we talked to people and we have other people that are out there telling us things." He told defendant, "I want you to tell me what happened and tell me your side of the story." The sergeant then asked if defendant was familiar with the Miranda warnings.
Defendant was twenty years old at the time of this interrogation. He had no adult record, and his only juvenile contact had been an arrest in 2007, for which no disposition information is apparently available. When the sergeant asked him if he was familiar with the Miranda warnings, defendant made no response.
The sergeant took a card from his pocket and proceeded to read defendant his rights. When defendant acknowledged he understood, the sergeant passed the card to defendant and asked him to check the box acknowledging that fact. Defendant did so at 1:01 a.m. The sergeant then asked, "Do you desire to waive these rights and answer questions?" When defendant did not immediately answer, Detective Graham interjected, "That means we want to talk to you about the incident. We want to hear your side of the story. Want to talk to you, listen to us. You can stop anytime you want to." The detective made that statement at 1:02 a.m.
Looking at the card, defendant asked "Where is it?" The sergeant directed him to question seven, and defendant began to read from the card aloud. He then asked, "What, what do you mean?" The sergeant began to respond, "It means do you want," when the detective interjected, "They're talking about answering . . . ." The sergeant continued, "yeah. The question is do you desire to waive these rights and answer questions. The question is do you want to . . . answer questions?" Both officers then advised that defendant could stop the questioning at any time. The detective added, "We just want to talk to you about the incident."
Defendant replied by saying, "I need somebody with me like a lawyer or something." The time was then 1:02 a.m. The sergeant responded to defendant, saying "All right. So . . . ." He was cut off by the detective, however, who said, "All right. I didn't hear you. Could you speak a little clear. What did you say?" Defendant replied, "I said I need a lawyer or something." The rest of the exchange proceeded as follows.
1:03 a.m. Detective: Okay. Is that what you choose to do right now? Is that what you want?
Defendant: I don't know.
Detective: You don't know. Explain — I don't understand.
Defendant: I'm confused.
Sergeant: All right. Basically what this means is that because your name came up in this situation, okay, we have to read you these rights that you have these rights. Okay. You can choose to answer some questions and then stop answering questions. You can choose to answer no questions. You can choose to answer any question. You have the right to stop answering questions whenever you want to.
Detective: Right. You have that right. If you want to stop at any time.
1:03 a.m. Defendant: I need somebody with me, like, I can't think right now. Like, I can't — give me a lawyer or something.
Sergeant: All right.
Sergeant: Check under seven[;] you desire to waive these rights and have — and answer questions[,] check no. Sign.
1:04 a.m. Defendant signs the card refusing to waive his rights.
Defendant: I don't know because, like, I don't know where I'm at.
Detective: You don't know what, what were you saying?
Defendant: I'm confused.
Detective: Because what are you confused about?
Defendant: Like y'all — y'all already said ya'll know what was going on. Like my head is fucked up.
Sergeant: Well, I'm telling you we — we have information from what other people are telling us. We don't know what you — what you know. We don't know your side of the story. All we know is what other people are telling us. So that's why I said this is —
Defendant: Like what did people tell you?
Sergeant: Well, you know, I'm not going to talk about that if you're not —
1:05 a.m. Detective: If you're — you said you want a lawyer. If you want to talk to us, we'll talk to you. But, you know, you've got to say, hey, I want to talk to you. We'll talk to you about the incident. But right now, I mean, you said that you want a lawyer, we could still talk to you, but you have to say, okay, I'll talk to you without, you know, a lawyer if that's what you want to do. Do you want to waive your rights and talk to us about the incident?
Defendant: Like, all right, so —
Detective: We're just trying to get to the bottom of what happened that's all.
Defendant: What's the repercussions if I say no? What's the repercussions to say yes?
Sergeant: That's — the repercussions is you're going to let somebody else tell your side of the story.
Detective: Right. The case is going to be investigated. Would you give me the opportunity to hear from you[,] horse's mouth?[] That's why we brought you here. We want to talk to you. We don't want to talk to no one else. We don't want to talk to your mother, your brother, your sister. We — we came here to bring you here to talk to you.
1:06 a.m. Defendant: I'll talk.
Detective: Okay. I can't hear you. What did you say?
Defendant: I'll talk.
Detective: You want to talk? Okay. Is that what you're saying?
Detective: Okay. So now at this point, you're waiving — you're waiving your rights and you want to talk to us about the incident, correct? Because we want to talk to you. We want to hear what happened.
Defendant: Nah, I don't — like I don't know.
Detective: Well, okay. So if you want to talk to us, we're here. We're here. We want to — don't let anyone else speak for you, but yourself. And that's why we're here to get to the bottom of this. I mean, you could talk to us at any point that you want to stop talking you can stop talking. Nobody is going to pressure you. But we're here to listen to you to hear what you have to say.
1:07 a.m. Defendant: I – I Just — I already checked it.
Sergeant: All right.
Detective: Did you want us to listen or what do you want to do?
1:07 a.m. Defendant: Nah I want — I want to hear what y'all got to say.
Detective: You want to hear what we have to say?
Detective: And we want to also hear what you have to say. You want — so you want to hear what we have to say first. Is that what you're saying?
Detective: Huh? Okay. We want to talk about the incident that occurred yesterday morning. There was an incident that occurred, okay a block over from — now you live at the house that we went to this evening, right, . . . North —
Detective: — Vermont Avenue. Okay. Well, a block over on Rhode Island Avenue there was an incident and we want to talk to you about that.
1:08 a.m. Detective: Did you know — did you know Hopewell? Did you know the victim? Joshua Hopewell, did you know his government name? Yeah, did you know the victim or did you know him by another name? Redrum?
Detective: You knew him by Redrum? How did you —
Sergeant: That's the situation that we want to speak to you.
Detective: Right, right. How — how did you know Redrum? Are you friends? You grow up together or what?
Defendant: Just —
Defendant: I didn't grow up with him, just knew him.
Detective: Yeah. I know. But where'd you know him from?
Defendant: Met him at the bar one time.
Defendant proceeded to answer the officers' questions, explaining that he had made arrangements to buy "wack," marijuana laced with embalming fluid, from the victim. When he got to the place at which they had agreed to meet, he got the idea the victim was setting him up. When he saw the victim "reaching," defendant reached for his own gun, "closed [his] eyes and, like, fell back and just started shooting." Defendant confessed to the shooting at 1:15 a.m., seven minutes after the officers asked whether he knew the victim and fourteen minutes after he first asked for a lawyer.
At the suppression hearing, Sergeant Furman testified for the State and narrated the first several minutes of the DVD of the interrogation, which was played in open court. Under questioning by defense counsel, the sergeant admitted defendant asked for a lawyer at least three different times before checking the box at 1:04 a.m. that he would not waive his Miranda rights. The sergeant also acknowledged defendant had expressed confusion before signing the card, and that he and the detective had addressed defendant's confusion before defendant determined he would not waive his rights. In response to defense counsel's question as to whether the officers were permitted to continue to talk to a suspect who had involved his right to counsel and who has not initiated further questioning, the sergeant replied, "We can talk to him. We can't ask him questions as to what happened in regards to the case."
The Law Division judge hearing the suppression motion determined under the totality of the circumstances that the State proved "Defendant Robinson knowingly, voluntarily, and intelligently waived his Miranda rights." The judge found that "[w]hen Robinson did, at one point, indicate on the Miranda card that he did not wish to waive his Miranda rights, the detectives ceased their communications with him." The judge found that defendant reinitiated communication with the detectives. Finding the case factually similar to State v. Fuller, 118 N.J. 75 (1990), the judge concluded "beyond a reasonable doubt, that Robinson was strategizing and trying to obtain information to game the system. That is evidenced by the multiple times Robinson told the detectives that he wanted to hear what others had told the police about the shooting." This appeal followed.
Defendant claims he plainly asserted both his right to counsel and his right to silence and that neither was honored by the interrogating detectives. Having reviewed the entire record and applying the law to the facts established by the DVD, we agree.
The law governing these questions, although not always easily applied, is well settled. The United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 484, 101 S. Ct. 1880, 1884, 68 L. Ed. 2d 378, 386 (1981), thirty-five years ago acknowledged that while an accused after initially being advised of his Miranda rights, may himself validly waive those rights and respond to interrogation, "additional safeguards are necessary when the accused asks for counsel . . . ." The Edwards Court held "that 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 1885, 68 L. Ed. 2d at 386.
That holding reflected the Supreme Court's view that Miranda had distinguished between the procedural safeguards triggered by an accused's request to remain silent and a request for an attorney. See Michigan v. Mosley, 423 U.S. 96, 103, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975). The Court has explained that Miranda's "rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease," was based on its "perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation." Fare v. Michael C., 442 U.S. 707, 719, 99 S. Ct. 2560, 2568-69, 61 L. Ed. 2d 197, 208-09 (1979).
The Court, however, has held a suspect must "articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney" in order to compel police to cease their questioning. Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362, 371 (1994). Although the Court has acknowledged it would be good practice for police confronted with an ambiguous or equivocal statement to clarify with the suspect that "he actually wants an attorney," there is no federal constitutional requirement that the police do so. Id. at 461-62, 114 S. Ct. at 2356, 129 L. Ed. 2d at 373.
In contrast, our own Supreme Court has long held under New Jersey 's common law right against self-incrimination, now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503, see State v. Nyhammer, 197 N.J. 383, 399, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009), that equivocal requests for counsel must be interpreted "in the light most favorable to the defendant." See State v. Alston, 204 N.J. 614, 621 (2011) (quoting State v. McCloskey, 90 N.J. 18, 26 n.1 (1982)). Further, police faced with a suspect's ambiguous or equivocal request for counsel must clarify whether the suspect is seeking a lawyer before continuing the interrogation. State v. Chew, 150 N.J. 30, 63 (1997), overruled on other grounds, State v. Boretsky, 186 N.J. 271 (2006).
Our Court has made clear, however, that "[t]he rule permits only clarification, not questions that 'operate to, delay, confuse, or burden the suspect in his assertion of his rights. Because such questions serve to keep the suspect talking, not to uphold his right to remain silent, they constitute unlawful "interrogation," not permissible clarification.'" State v. Johnson, 120 N.J. 263, 283 (1990) (quoting Christopher v. Florida, 824 F.2d 836, 842 (11th Cir. 1987), cert. denied, 484 U.S. 1077, 108 S. Ct. 1057, 98 L. Ed. 2d 1019 (1988)).
Both federal and State law are consistent in holding that once a suspect invokes his right to an attorney, police officers are obligated under Miranda to "scrupulously honor" that request. State v. Hartley, 103 N.J. 252, 260-61 (1986). Where a defendant's invocation of the right to silence has not been "scrupulously honored," an inculpatory statement is suppressed notwithstanding its voluntariness. Mosley, supra, 423 U.S. at 104, 96 S. Ct. at 326, 46 L. Ed. 2d at 321.
Our obligation in reviewing a trial court's admission of a defendant's confession, is to "engage in a 'searching and critical' review of the record to ensure protection of a defendant's constitutional rights." State v. Maltese, 222 N.J. 525, 543 (2015) (quoting State v. Hreha, 217 N.J. 368, 381-82 (2014)), cert. denied, ___ U.S. ___, 136 S. Ct. 1187, 194 L. Ed. 2d 241 (2016). When the trial court has, as here, based its findings and conclusions on a video recording of the interrogation equally available to us, "a review of the videotape of the interrogation is appropriate." State v. Hubbard, 222 N.J. 249, 264 (2015) (quoting State v. Diaz-Bridges, 208 N.J. 544, 566 (2011)). The availability of the DVD does not, however, change our standard of review. Id. at 263-64. We defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record. State v. Gamble, 218 N.J. 412, 424 (2014). Our review of the trial court's legal conclusions, however, is plenary. State v. Gandhi, 201 N.J. 161, 176 (2010).
Applying these principles, we are convinced the trial judge erred in admitting defendant's statement to the detectives. Our disagreement with the trial court is not one over the facts, but on the application of the law to those facts.
After checking the box on the card acknowledging he understood the Miranda rights read to him by the detectives, defendant balked at agreeing to waive those rights and answer questions and asked the detectives to explain what that meant. The detectives explained the question was whether defendant was willing to talk with them and answer questions, knowing he could stop at any time. Defendant responded by saying he needed somebody with him "like a lawyer or something."
Although Sergeant Furman plainly heard the response, Detective Graham said he did not and asked defendant what he said. Defendant again repeated he "need[ed] a lawyer or something." Instead of immediately stopping the interrogation in the face of that unambiguous request for counsel, Detective Furman responded by asking defendant, "Is that what you choose to do right now? Is that what you want?"
Those questions did not seek clarification of the request. The questions themselves make plain the detective clearly understood defendant was asking for a lawyer. Rather than stopping the interrogation at that point as was required, the detective continued to engage defendant and sought to make him confirm for a third time that he was asking to be provided with counsel. When defendant instead stated "I don't know," the detective demanded defendant explain. When defendant replied that he was confused, the detective did not ask whether he was confused about his right to have a lawyer present. Indeed, the detective did not address defendant's right to counsel at all. Rather he merely repeated that defendant's name had come up in the investigation, that he could choose to answer questions or not and had the right to stop answering questions whenever he wanted to.
When defendant replied that he "need[ed] somebody with him" as he could not think and for the third time asked the officers to "give [him] a lawyer or something," the sergeant directed him to check the box signifying he was refusing to waive his rights and sign the card. After defendant did so, he passed the card back to the sergeant, saying "I don't know because, like I don't know where I'm at." The detective responded with, "You don't know what, what were you saying?" Defendant replied that he was "confused."
The trial court determined that by that last comment, defendant reinitiated conversation with the detectives, thus permitting them to continue their interrogation of him. We cannot agree. Rather, we conclude that defendant's re-initiation of the conversation is immaterial on these facts. Because the detectives had already failed by that point to scrupulously honor defendant's request to consult with a lawyer before he talked with the detectives, his subsequent inculpatory statement must be deemed unconstitutionally compelled as a matter of law. See State v. Bey, 112 N.J. 45, 71-72 (1988).
Instead of immediately stopping the interrogation when defendant first said he needed a lawyer at 1:02 a.m., Detective Graham asked him, in essence, if that was what he really wanted. That is impermissible. See Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707 ("If, however, [the suspect] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning."); Bey, supra, 112 N.J. at 68-69 (holding suspect's rights not scrupulously honored " when defendant invoked his right to cut off questioning, [and] the interrogation continued as if nothing had happened").
The detectives then continued over the next five or so minutes to keep defendant talking to them and to convince him to answer their questions about the shooting largely by continuing to remind him that they had information from other people already. Instead of scrupulously honoring defendant's request for "a lawyer or something," by immediately stopping their interrogation, the detectives put questions to him which "operate[d] to, delay, confuse, or burden" his assertion of his Fifth Amendment rights. See Johnson, supra, 120 N.J. at 283. A review of the DVD makes plain the detectives never stopped their efforts to get defendant to talk with them about the shooting even after he repeatedly requested a lawyer. Because defendant's request needed no clarification, the detectives' questions served "to keep the suspect talking, not to uphold his right to remain silent" and thus "constitute[d] unlawful 'interrogation,' not permissible clarification." See ibid.
Although it is certainly true, as the trial court noted, that defendant was the first to speak as he passed the card stating he was refusing to waive his Miranda rights back to the sergeant, that fact is not significant in our analysis here. As Justice Clifford explained in Fuller, the case on which the trial court relied, "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.'" Fuller, supra, 118 N.J. at 79 (quoting Mosely, supra, 423 U.S. at 102-03, 96 S. Ct. at 325-26, 46 L. Ed. 2d 320-21). The Court in Fuller held that "[f]resh Miranda warnings are not required for a finding that the accused's previously-invoked right to silence has been scrupulously honored when the accused initiates dialogue with the authorities regarding the investigation." Id. at 87.
The trial court's error here was that it applied the holding in Fuller, that fresh Miranda warnings are not necessary when the suspect reinitiates conversation and thereafter makes a voluntary inculpatory statement, without first making the crucial threshold finding as to whether the detectives had scrupulously honored defendant's request for counsel. As Justice Clifford explained in Fuller, "[a]fter the court determines that the defendant's previously-invoked right to silence has been scrupulously honored, it must make a separate inquiry into whether any subsequent waiver of that right was beyond a reasonable doubt knowing, intelligent, and voluntary under the totality of the circumstances." Ibid. (emphasis added); see also Hartley, supra, 103 N.J. at 260 (noting "the question of waiver is an inquiry separate and apart from . . . whether the defendant's right to remain silent has been properly respected in the first instance").
Here, the trial court failed to undertake the first step in the legal analysis. It did not address the requirement that is the sine qua non for a valid Miranda waiver when a defendant has first invoked his right to consult with a lawyer, that police scrupulously honored defendant's initial request for counsel. Because we find on the undisputed facts that the detectives did not scrupulously honor defendant's unequivocal request for counsel, we conclude defendant's inculpatory statement cannot be admitted notwithstanding the trial court's finding that it was made voluntarily. See Mosley, supra, 423 U.S. at 104, 96 S. Ct. at 324-25, 46 L. Ed. 2d at 319; Hartley, supra, 103 N.J. at 260-61.
Because we reverse defendant's conviction, we need not address his claims as to his sentence. The order admitting defendant's statement to the authorities is reversed. Defendant's conviction is vacated and the matter remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Reversed and remanded.
 When defendant was arrested, co-defendant Michael Rivera and another man were at defendant's home and the police took all three men in for questioning. Defendant was thus aware that the officers were interviewing others about the shooting.
 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
 The words "horse's mouth" do not appear in the transcript but are clearly audible on the DVD.
 Fuller is a right to silence case, not a right to counsel case. 118 N.J. at 77. Although that difference has significance when the police attempt to re-engage a suspect who has previously invoked his right to counsel, compare Edwards, supra, 451 U.S. at 484-85, 101 S. Ct. at 1885, 68 L. Ed. 2d at 386 (prohibiting police from re-engaging a suspect who has asserted a right to counsel); with Hartley, supra, 103 N.J. at 256 (prohibiting police from re-engaging a suspect who has invoked his right to silence without providing renewed Miranda warnings), it is not critical here, as the case turns on the separate question of whether the detectives scrupulously honored defendant's unequivocal request for counsel. Accordingly, because the analysis on that point would be the same here whether considered as a request for counsel or one to remain silent, we need not separately address defendant's claim that his right to silence was also not scrupulously honored.
 Because we conclude that the voluntariness of defendant's statement is immaterial here as a matter of law, we need not consider whether there is adequate support in the record for the court's finding that defendant in his interaction with the detectives "was strategizing and trying to obtain information to game the system."
 We note, however, the State concedes there is no support in the record for a finding of aggravating factor six, the nature and extent of defendant's prior record, which would have otherwise required a remand for resentencing.