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State v. Johnson

Decided: May 21, 1990.


On appeal from the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Pollock, Clifford, Handler, O'Hern, Garibaldi, and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, J.


This appeal concerns the suppression of evidence of the escape of defendant, Richard Johnson, from police head-quarters and of his subsequent telephone call to the police. The Law Division granted defendant's motion to suppress. In an unreported decision, the Appellate Division reversed. We granted defendant's motion for interlocutory appeal, 117 N.J. 651, 569 A.2d 1347 (1989), and now reverse the judgment of the Appellate Division.


Except where otherwise indicated, the following statement is based on facts as found by the trial court or as conceded by the State. At 10:55 a.m. on July 25, 1984, Investigator Mark Prach of the Morris County Prosecutor's Office, accompanied by investigators Dempsey and Walsh of that office, and Detective Albert Stearn of the Jefferson Township Police Department, apprehended defendant, Richard Johnson, at a warehouse where he was working in Hanover Township. According to the police, defendant was not a suspect at the time, and they did not inform him of his constitutional rights. The trial court concluded, however, that from that moment "defendant was not

free to leave," and that he was "in detention." The police drove Johnson in a police car to the Jefferson Township headquarters where, according to the trial court, "defendant was subjected to an unlawful investigatorial detention." As the court found, once defendant entered the detective bureau at police headquarters, "that room was as good as a cell."

When they detained Johnson, the police were aware of the following facts. Around 6:00 p.m. on July 24, the dead body of eleven-year-old Dawn Kiemel was discovered on Espanong Road in Jefferson Township. Earlier that morning at 1:01, Dawn's father had called police headquarters to report that his daughter had not returned from a carnival in the township, where she had gone with some friends. Two hours earlier, between 11:00 and 11:30 p.m., on July 23, a motorist had noticed a girl who looked like Dawn walking along Espanong Road in the vicinity where Dawn's body was discovered. About one or two hundred feet farther down the road, the motorist also noticed a black man built "like a football player," standing near a cream- or beige-colored car. Also on the evening of July 23-24, shortly after midnight, a large black man had driven his light-colored car off Espanong Road a few miles from the place where Dawn's body was found. The accident report listed the owner of the disabled vehicle as "Richard Jones," but police investigation revealed that the owner's true name was Richard Johnson, a man convicted of manslaughter in 1980 and recently placed on parole. Armed with these facts, the township and county law-enforcement officials detained defendant, who fit the description provided by the motorist and who, in fact, was the owner of the disabled car.

On arriving at police headquarters, the officials began interrogating Johnson without first informing him of his rights to counsel or to remain silent. After two hours of questioning, Stearn and Prach left the room, leaving Sergeant George Stamer to guard Johnson. With Stamer's permission, Johnson tried unsuccessfully to place telephone calls to his mother and to his girl friend. According to Stamer, Johnson then stated, "I think

I better call my attorney," but when Stamer told him to "go ahead," Johnson decided he did not yet need an attorney. The trial court ruled that Stamer's failure to ascertain whether Johnson was invoking his right to counsel at this time constituted a violation of Johnson's right to counsel.

A few minutes later, while pacing back and forth, Johnson announced, "I think I'm going to leave here now." Stamer, however, told Johnson to sit down and wait for Stearn. According to Johnson, when he opened the door to leave, his way was blocked by an assistant prosecutor. The trial court found that the prosecutor, perhaps "in conjunction with one of the officers," directed defendant "back into the detective room."

On returning, Stearn read Johnson his Miranda rights for the first time and asked him to sign a written "Advice of Rights Form." Johnson refused. In response to his inquiry, Johnson was told that he was not under arrest, but that he was a suspect. To this, Johnson replied, "[s]ince I'm a suspect, then I would like to have a lawyer." Stearn, however, told him that he did not need a lawyer and asked Johnson what was he "trying to hide." When reviewing the testimony, the trial court found that defendant's reply constituted a request for counsel.

The questioning resumed. That resumption, the trial court found, constituted another violation of defendant's right to counsel.

The police, knowing that Johnson had previously been convicted for aggravated manslaughter, asked him if he had ever been arrested. Johnson replied, "I plead the Fifth. I'm not saying nothing * * *."

The trial court found that Prach treated defendant's request as if it were a joke. As the court stated, Prach "thought the defendant was joking, that I guess he thought the defendant was just making light of what you see on television or when people say 'I plead the Fifth,' and Prach saw no significance to the defendant's statement that he 'pleads the Fifth.'"

Rejecting Prach's testimony as lacking "any credibility," the trial court concluded:

Prach's discussion of the defendant pleading the Fifth was about as cavalier on the witness stand as though the defendant was asking him for a piece of gum. To hear and watch Prach testify as to this incident, any unknowing spectator in this courtroom could think that there was some sort of inside joke being recounted.

The court concluded: "Prach's testimony is nothing more or less than the extenuation of the course of [the] devious undoubtedly unsanctioned and most importantly unconstitutional approach he took to this case during the entire participation from the outset."

Ignoring Johnson's invocation of his constitutional rights, Prach and Stearn continued to question him. Johnson testified that in response to their statement that they knew of his manslaughter conviction, he suggested that they thought he was guilty because of his criminal record. When Stearn said, "maybe," Johnson replied, "maybe my ass. I want a lawyer."

At 4:20 p.m., after lunch and two hours of "small talk," Investigator Richard Longo of the Morris County Prosecutor's Office entered the room. He told Johnson that he was seeking warrants to search Johnson's car and trailer. According to Johnson, Longo said: "We know you killed this girl. * * * If I find what I'm looking for, I'm going for the death penalty." After Longo left, Johnson said to Stearn: "Don't you say nothing at all until I get a lawyer." The trial court found that Johnson's statement constituted another request for a lawyer.

According to Johnson, around 4:45 p.m. he observed his girl friend, Elizabeth Plant, as the police brought her to the station for questioning. At Johnson's request, Prach brought Plant into the room. As Johnson and Plant embraced, he whispered to her to "get me a lawyer" and passed her a note for his mother to the same effect.

Johnson asked for a lawyer several more times and indicated his unwillingness to continue talking. According to Johnson, Stearn assured him, "[y]ou're going to get your lawyer. We're

going to get you a lawyer." Johnson testified that at another point, however, Stearn told him, "[i]f you want a lawyer, it means you got something to hide."

One hour later, when Stearn left the room at 5:50, Prach resumed questioning Johnson, without re-administering Miranda warnings. Knowing that Johnson was on parole, Prach suggested that defendant did not want to discuss why he stopped on Espanong Road because he intended to commit a burglary. In a statement that was virtually a repetition of Prach's suggestion, Johnson responded "that [he] had stopped on Espanong Road to commit a burglary." The trial court found, "[t]he clear import of [Prach's suggestion] is that if Johnson doesn't tell about this minor crime * * * the defendant by his silence might end up getting charged and convicted of * * * the homicide of Dawn Kiemel."

Johnson testified that Stearn soon returned and informed him that he had "just called an attorney, who was on his way." Although the record does not indicate whether Stearn had in fact placed the call, no attorney ever arrived. The trial court found that Prach and Stearn then resumed questioning Johnson about the "burglary." Johnson testified that he again asked for a lawyer. To that request, Stearn replied, "[d]on't worry about it, you don't need a lawyer * * *."

At 8:00 p.m., after being in custody at the police station for eight and one-half hours, Johnson heard over the intercom that his mother was calling. Prach told Johnson that he could speak to his mother after the police spoke to her first. Johnson explained to the police that he had earlier passed to Plant a note for his mother so she would obtain a lawyer for him. The police responded by telling Johnson that "we're getting a lawyer."

In what he described as a "fired-up mood," Johnson testified that he protested: "I've been here going on nine hours, and I can't speak to my mother?" When Prach tried to resume questioning, Johnson stated that he objected: "Man, shut up.

I'm not saying nothing, man. You said I can't speak to my mother. You ain't got me a lawyer. I ain't saying nothing."

Stearn left the room, and Prach, who noticed that Johnson was "getting upset," repeatedly suggested, over Johnson's denials, that he must have seen "the girl" on Espanong Road. Johnson succinctly described the ensuing events:

Then, he [Prach] says: Listen, Rich, maybe you seen something, maybe you heard something, but you don't want to tell us.

I said: Man, I am not saying nothing. Don't ask me no more, don't ask me nothing else. I keep telling you, like I said, I keep telling you not to ask me no ...

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