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State v. Flower

Decided: April 30, 1987.


Imbriani, J.s.c.


[224 NJSuper Page 210] This case involves a pretrial motion to determine the admissibility of two oral confessions. The first confession was obtained by an investigator at the prosecutor's office on the date

defendant was arrested and the second confession was obtained by an investigator from the Division of Youth and Family Services (hereinafter DYFS) at the county jail two days later.

Defendant (26-years old) was charged with first degree aggravated sexual assault upon a 3 1/2-year-old child in violation of N.J.S.A. 2C:14-2a. He does not deny receiving Miranda warnings from the prosecutor's investigator or giving the two confessions; nor does he claim that either confession was the product of physical or mental force or coercion exerted by the police or anyone else. Rather, he asserts that he is a mentally retarded person with the limited intelligence of a six- or seven-year-old child who cannot understand, much less "knowingly and intelligently" waive his Miranda rights and therefore, any "waiver" on his part was meaningless and should not be given any efficacy.

Defendant offered the testimony of three of his high school teachers who taught him in a special class about seven years ago. All described defendant as being polite, but having an IQ of less than 70 and a person who spoke "very slowly," sometimes with "slurred" speech. He had to be spoken to in very basic terms and any instructions given to him had to be repeated time and again and also repeated by him before one could be certain that he understood. His limited vocabulary was of a second- or third-grade level and he was described as not having the ability to grasp and understand concepts or abstractions. All three teachers spoke with defendant recently and testified that his mental ability remains the same today as it was seven years ago. For these reasons, each teacher opined that even if Miranda rights were explained to him, he would not be able to understand what they were and knowingly and intelligently waive them.

Defendant testified that he was "afraid of going to jail" so he answered every question, "yes." While he was on the witness stand it was readily and quickly apparent to the court that he did not know his right hand from his left, could not see from his

right eye, and could neither read nor write. A foster guardian with whom defendant resided for the past seven years testified that defendant would "say yes to anything."

The State offered the testimony of its investigator, who spoke briefly with defendant at a store where he worked part time, and then took him to the prosecutor's office for questioning. When informed of his Miranda rights defendant stated that he understood each and every one of the five rights contained therein. No force, duress or coercion of any nature was ever exerted upon defendant. Defendant was then orally questioned alone for about 30-45 minutes and immediately thereafter he gave a formal cassette-taped oral confession.

Two expert witnesses testified. A clinical psychologist for defendant examined him an average of about 45 minutes on each of six interviews. He stated that defendant is retarded and does not have the mental capacity to understand an abstract right as is contained in the Miranda warnings. He said that you cannot rely on a simple "yes or no" answer from defendant, who has the age equivalent of a child 7- to 12-years old and is in the lower 2% of the population in intelligence. Therefore, he opined that any waiver from defendant would be meaningless.

The State offered a psychiatrist who testified that defendant has the mentality of a six- or seven-year-old but that such a child, including this defendant, can understand the significance of his Miranda rights. He saw defendant only once for part of one hour because at the time he had another client in his office, but in a different room.

Also testifying were Ruth Barr, 22-year-old mother of the child, and Harold Flower, brother of defendant and live-in boyfriend of Ruth Barr. Both testified that they would on occasion leave the child with defendant for three or four hours on Saturday evenings. At some point the child complained of problems in her vaginal area and when taken to a doctor for an

examination, he referred the case to the police and this investigation followed.

Whenever the State bears the burden of proof in a motion to suppress a statement allegedly obtained in violation of the Miranda doctrine, the United States Constitution requires that the State need prove waiver by defendant of such rights only by a preponderance of the evidence, Colorado v. Connelly, 479 U.S. 157, , 107 S. Ct. 515, 523, 93 L. Ed. 2d 473 (1986), but New Jersey requires the higher standard of beyond a reasonable doubt. State v. Yough, 49 N.J. 587, 600-601 (1967); State v. Whittington, 142 N.J. Super. 45, 49-50 (App.Div.1976). It is "an established principle of our federalist system" that states may afford "individual liberties more expansive than those afforded by the federal constitution." State v. Novembrino, 105 N.J. 95, 144-145 (1987).

Generally, a statement given by a defendant is not admissible in a criminal case unless the court is satisfied beyond a reasonable doubt that the defendant was informed of his Miranda rights before giving the statement and "in light of all the circumstances attending the confession it was given voluntarily." State v. Hampton, 61 N.J. 250, 272 (1972). What is at stake is ensuring the use of effective procedural safeguards to secure the right of the Fifth Amendment to the United States Constitution that "no person shall be . . . compelled in any criminal case to be a witness against himself," which is now made applicable to state action by the Due Process Clause of the Fourteenth Amendment. However, once informed of his rights "a defendant may waive ...

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