STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CASEY T. ROBINSON,
Defendant-Appellant.
____________________________
|
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
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).
PER CURIAM
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:
POINT I
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.
POINT II
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."[1] 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[2]
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.
Detective: Okay.
Sergeant: Check under seven[;] you desire to waive
these rights and have — and answer questions[,] check no. Sign.
Defendant: Here?
Sergeant: Mm-hm.
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?[[3]] 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?
Defendant: Yeah.
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?
Defendant: Yeah.
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?
Defendant: Yeah.
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 —
Defendant: Vermont.
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?
Defendant: Yeah.
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 —
Detective: Hmm?
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.[4] 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.[5] 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.[6] 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.
[1]
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.
[2]
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966).
[3]
The words "horse's mouth" do not appear in the transcript but are
clearly audible on the DVD.
[4]
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.
[5]
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."
[6]
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.
