On appeal from the Superior Court, Law Division, Gloucester County.
Fritz, Gaulkin and Long. The opinion of the court was delivered by Long, J.A.D.
After a trial by jury, Barbara Elmore was convicted of reckless manslaughter (N.J.S.A. 2C:11-4(a)) in connection with the death of her three month old daughter, Jennifer. She was sentenced to an indeterminate custodial term not to exceed four years. On this appeal she claims that her inculpatory statement to the authorities should have been suppressed because the circumstances surrounding its taking violated her right against self-incrimination and her right to counsel; that evidence of prior instances of child abuse on her part should have been excluded, and that at trial the State withheld evidence material to her defense and thus deprived her of full and effective cross-examination. She argues that these errors warrant reversal.
Because we agree that Elmore's rights under the Fifth Amendment to the United States Constitution as articulated in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) and Edwards v. Arizona, 451 U.S. 477, 101 S. Ct.
1880, 68 L. Ed. 2d 378 (1981) were violated by representatives of Gloucester County Prosecutor's office with the result that her incriminating statement was improperly admitted into evidence, we reverse and remand for a new trial.
The facts in the case are as follows: As a result of an autopsy performed on Jennifer Elmore after her pediatrician's suspicions were aroused as to the cause of the child's death, it was determined that she died from craniocerebral injuries inflicted either by a blow to her head or violent shaking. Thereafter Jennifer's parents (Elmore and her husband, George) were called to the offices of the Division of Youth and Family Services (DYFS). When they arrived they were told that Gloucester County Prosecutor's detectives were on the way to question them about Jennifer's death. Later, they were separately transported to the Gloucester County Prosecutor's office. On arrival, Mrs. Elmore was placed in an office with Detective Watson and Investigator Reese and permitted to make a phone call. She called her mother and during the conversation became extremely emotional and upset and claimed that she was not permitted to have an attorney. At that point, Watson interrupted Elmore and told her that no one had denied her that request since she never asked for an attorney. Elmore was then left in the company of Reese while a statement was taken from her husband.
Around this time an attorney, Fred Last, was contacted on Elmore's behalf by her sister, Lillian Severino. Severino and Elmore's sister-in-law, Sally Lowell, met Last at his office and accompanied him to the prosecutor's office. Before they arrived, Last called the prosecutor's office and asked Detective Layton if he could come and talk to Elmore. Layton agreed. When Last arrived at the prosecutor's office Detective Layton advised him that he would see if Elmore wanted to speak to him. Although there is a difference of opinion between the officers as to exactly what Layton told Investigator Reese about Last, it is undisputed that Reese simply asked Elmore whether she wanted to see an attorney who was in the office. Elmore replied that she would "like to finish up in here first
and then I will speak to the attorney." Reese relayed this information to Layton who, in turn, advised Last that Elmore did not wish to speak to him. Last became insistent and a heated exchange ensued at the end of which Layton ordered him out of the office. According to Elmore, she thought that the attorney who wished to speak to her was from the prosecutor's office and that her only choice was whether to speak to him before or after the statement was taken.
Thereafter Detective Watson arrived, set up a tape recorder and took a statement from Elmore. At the beginning of the tape Elmore was asked if she was familiar with her Miranda rights. When she answered no, Detective Watson asked her to read aloud a card which contained the so-called Miranda warnings. She did so as follows:
You have the right to remain silent and refuse to answer any questions, anything you say may be used against you in a court of law, you have the right to consult with an attorney at any time and have him present before and during questioning. If you cannot afford any attorney one will be provided if you so desire prior to any questioning. A decision to waive these rights is not final and you may have . . . you may withdraw your waiver whenever you wish either before or during questioning.
When asked if she now understood her rights and what was meant by the term Miranda warnings, Elmore responded affirmatively. She then signed the card to acknowledge that she understood her rights. Elmore later testified that she did not understand the warning but was embarrassed to admit it.
Elmore then gave an extremely incriminating statement to the police including admissions that she had "disciplined" Jennifer since the child was born, that she hit her in the face and that while she often felt guilty about hitting Jennifer, that sometimes she "felt good that [she] did it." In the statement Elmore indicated that, in her view, even tiny babies need discipline. She said that she felt that Jennifer was "spiteful" and "[knew] how to get around [her] parents," and that Jennifer deliberately cried because "she knows crying bothered us." She stated that neither she nor her husband wanted Jennifer, that the addition of the child to the household "caused almost a separation or divorce" and that she was very disappointed that
Jennifer wasn't a boy. Elmore also said that she was having problems accepting Jennifer because Jennifer was only 11 months younger than her older child, Christina, and that she "just . . . couldn't cope." These are only brief portions of Elmore's lengthy statement which contains obvious efforts on her part to exculpate herself from suspicion but which, when read as a whole, was a devastatingly effective part of the State's case against her. The trial judge denied Elmore's motion to suppress because he found that she understood her Miranda rights and had waived them voluntarily before giving the statement.
At trial, the State produced the testimony of Leigh McGregor, a family friend of the Elmores, who was the only witness to say that she observed Elmore abusing Jennifer. She related that she saw Elmore injure Jennifer on three occasions during the month before Jennifer's death, twice because the child would not cooperate with eating and once because she would not stop squirming while Elmore was trying to change her diaper. On the last occasion, McGregor said that Elmore hit Jennifer on the side of the head with an open palm causing the baby to let out a loud scream.
A number of other witnesses were produced by the State and the defense during the course of the trial including doctors, nurses, social workers, friends and relatives of Elmore. It is unnecessary to outline that testimony here since it does not impact on the narrow issue presented. Elmore took the stand and testified in her own behalf. She said that on the morning of June 22, 1980 she was awakened at 6:00 a.m. by Jennifer's routine fussing. She testified that since she maintained precise schedules and didn't believe in getting her children up before 8 a.m., she picked Jennifer up and put her in her playpen in the living room and then went back to bed. She said she lay in bed and dozed until about 7:30 a.m. when she again heard the baby fussing. She claimed that when she got up at ...