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State v. Harvey

Decided: October 18, 1990.


On appeal from the Superior Court, Law Division, Middlesex County.

Concurring in part, dissenting in part -- Justices Handler, O'Hern, Garibaldi and Stein. For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford and Pollock. The opinion of the Court was delivered by Clifford, J. O'Hern, Justice, concurring and dissenting in part. Stein, Justice, concurring in part and dissenting in part. Garibaldi, J., joins in this opinion. Handler, Justice, concurring and dissenting in part.


Defendant, Nathaniel Harvey, appeals from a capital-murder conviction and death sentence. Because the trial court's jury instructions at the guilt phase did not comply with our later holding in State v. Gerald, 113 N.J. 40, 549 A.2d 792 (1988), we reverse the conviction and remand for a new trial.


-- A --

After Irene Schnaps failed to appear for work on June 17, 1985, a colleague went to her apartment at the Hunter's Glen complex in Plainsboro. When no one answered, he entered through the unlocked door and found Schnaps dead on the bedroom floor. She had suffered severe head and facial wounds.

The police found an empty box for a Seiko LaSalle watch on the dressing table in the bedroom. An empty camera box was in the closet, and an open purse sat atop the vanity in the bathroom. A pillowcase had a bloody sneaker print bearing a chevron design and the letters "PON." There were no signs of forced entry; the sliding glass door was closed but unlocked.

Dr. Martin Shuster performed an autopsy. He concluded that Schnaps had suffered numerous skull fractures, a fractured jaw, and a deep laceration on her skull. Dr. Shuster believed that she had been struck at least fifteen times with a blunt object. Pressure applied to her neck for an hour had caused contusions. In Dr. Shuster's opinion, a brief interval separated the first blow and death. He could not determine

which blows had been fatal and which had been inflicted after the victim's death.

-- B --

On October 28, 1985, the police arrested defendant on suspicion of kidnapping and burglary. Following several interrogations over the next three days, defendant admitted that he had killed Irene Schnaps. He said that on June 16 he had gone to the Hunter's Glen apartment complex. Entering Schnaps' apartment through an unlocked patio door, he went into the bedroom, where he took a watch and some jewelry from the dresser. Schnaps, who had been sleeping, woke up and punched him in the nose, causing it to bleed. Defendant then struck her in the head with a "hammer-like" object, knocking her to the ground. Afraid that the blood from his nose had stained the sheets, he replaced them with clean ones from the closet. He then retrieved a towel from the bathroom and wiped the blood off of Schnaps' body. After collecting the bed sheets, the towel, the watch, a camera, and other pieces of jewelry, he left the apartment.

A jury convicted defendant of the knowing and purposeful murder of Irene Schnaps, felony murder, first-degree robbery, and second-degree burglary. Following a penalty-phase proceeding on the capital-murder conviction, the trial court sentenced defendant to death.


We first consider defendant's contention that the trial court's failure to instruct the jury separately for the crimes of knowingly or purposely causing death (intentional murder) and of knowingly or purposely causing serious bodily injury resulting in death (serious-bodily-injury murder) requires reversal of his conviction. In State v. Gerald, supra, 113 N.J. at 69, 549 A.2d 792, we held that a person who is convicted of serious-bodily-injury murder under N.J.S.A. 2C:11-3(a)(1) or (2) may not be

sentenced to death. If the evidence provides a rational basis for a jury to convict a defendant of either intentional or serious-bodily-injury murder, the trial court "must instruct the jury to specify which, if [either], of those findings forms the basis for a conviction." State v. Coyle, 119 N.J. 194, 209, 574 A.2d 951 (1990).

In arguing that there was no rational basis for a finding of serious-bodily-injury murder, the State points to the medical evidence suggesting that the victim had been hit fifteen times in the head with a blunt instrument and that her neck had been squeezed for an hour. The victim's jaw was broken. Defendant confessed that he had hit her with a "hammer-like object."

Of course, such repeated blows can support a jury finding of intentional murder. However, the issue here, as in other pre- Gerald capital cases, is whether that was the jury's determination. The jury was not asked to distinguish between intentional murder and serious-bodily-injury murder. Its verdict did not indicate which of the two it found to apply to this case. Although it might seem probable that the jury had intentional murder in mind, the question is whether there is a rational basis in the evidence on which the jury, if instructed to distinguish between the two, might return a verdict of serious-bodily-injury murder. If there is, then the jury, as the finder of fact, must decide the matter. An appellate court cannot.

The State conceded that defendant's initial intent was to commit burglary, not murder. Defendant confessed that he had struck the victim only once, in response to being hit in the nose. That evidence suggests that defendant may have intended only to injure the victim, not to kill her. We note too that while arguing for purposes of the Gerald issue that the number of blows inflicted unquestionably establishes an intention to kill, the State claims for penalty-phase purposes that the first blows were intended to injure and inflict pain before death rather than to kill. See infra at 434, 581 A.2d at 496 (discussion of c(4)(c) aggravating factor).

The jury was free to reject the pathologist's testimony and accept the other evidence that indicated a lack of murderous intent. See State v. Crisantos (Arriagas), 102 N.J. 265, 273, 508 A.2d 167 (1986) (a jury has "the power to disregard even overwhelming proof"). This was not merely a one-issue case requiring the jury to determine only whether defendant had in fact been the one who had inflicted the intentionally-fatal blows. The mental state of the perpetrator was also clearly in issue here. The trial court instructed the jury not just on capital murder, but also on felony-murder, aggravated manslaughter, and manslaughter. Obviously, then, the trial court believed the evidence would allow the jury rationally to convict on one of those counts while acquitting defendant on capital murder. A rational jury could have concluded that defendant inflicted the fatal blows but had not intended to kill. The determination of whether defendant had the mens rea necessary to permit the State to put him to death is quintessentially one that our system of law entrusts to juries. All mental states related to the law of homicide were developed over a long period of history for the purpose of distinguishing capital murders from others. Wechsler & Michael, "A Rationale of the Law of Homicide I," 37 Colum.L.Rev. 701 (1937). Determining a defendant's mental state is the special function of the jury, not of this Court.

The record provided "a rational basis for the jury to find that the defendant intended to cause only serious bodily injury." State v. Coyle, supra, 119 N.J. at 209, 574 A.2d 951. Because the trial court understandably failed to anticipate Gerald and did not instruct the jury to distinguish that offense from intentional murder, we reverse defendant's capital-murder conviction.


We turn now to those alleged errors that might arise again at retrial.

-- A --

Defendant argues that the trial court should have suppressed his confession. He claims that on five occasions he asserted his right to remain silent, but that the police did not "scrupulously honor" his invocations. See Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975). Defendant contends that the police violated the bright-line test adopted in State v. Hartley, 103 N.J. 252, 511 A.2d 80 (1986), by not re-informing him of his Miranda rights after each invocation of his right. He also alleges that his confession was not voluntary.

-- 1 --

The police arrested defendant at about 7:30 a.m. on October 28, 1985. When they reached the station an hour later, the police read the Miranda warnings to defendant, who then signed a rights form. The police did not question him that morning.

At 3:37 that afternoon, Sergeant Hibbs and Detective Swanhart began interrogating defendant. They again gave Miranda warnings to defendant, who signed another rights form. After eliciting personal information from defendant, the police started asking him about other crimes. At about 4:10 p.m. they questioned him about the Schnaps murder. Defendant denied responsibility, began to cry, and "asked for time to think, he wanted time by himself * * *." The questioning ceased and the police returned defendant to his cell. Forty minutes later the police brought defendant back to the interrogation room. On the way an officer "reminded" him of his rights but did not issue the formal Miranda warnings. When the police asked defendant about the Schnaps murder, he again began crying and said: "[B]efore I talk or say anything else I want to talk to my mother-in-law Pearl Thomas."

Thomas arrived at the station an hour later and spoke with defendant for five minutes in his cell. At 7:30 p.m. the police took defendant back into the interrogation room. They gave

him no Miranda warnings or reminders. When the police broached the Schnaps murder at 8:00 p.m., defendant again began to cry and said that he "just didn't do anything." According to one of the officers, the questioning then ended, "not at his request or our request, it was a mutual thing." Defendant was returned to his cell.

Fifteen minutes later defendant asked to speak with Detective Swanhart alone. Swanhart "reminded" defendant of his rights and talked to him for an hour and a half. Defendant did not admit killing Irene Schnaps but he did confess to other crimes.

Around midnight a detective from the prosecutor's office spoke to defendant about the murder. He orally advised defendant of his Miranda rights. The interview lasted only a couple of minutes, and defendant did not give a statement.

The next morning, October 29, two officers took defendant for a one-hour car ride to the scenes of the crimes he had admitted the night before. No Miranda warnings were given.

At defendant's arraignment that day for offenses unrelated to the Schnaps murder, the municipal court did not ask him if he had or desired an attorney. That afternoon defendant was read his Miranda rights and signed a rights form. During the interrogation he consented to searches of his room and car. The search of the car turned up a Seiko LaSalle watch, later identified as having belonged to Schnaps' deceased husband.

That night the police interviewed defendant in a holding room at the jail. After reading defendant his Miranda rights, the police told him that they had found the watch in his car. Defendant "responded as if talkin' to himself, he said, oh, not in the car, he said no, no, not in the car." Defendant again denied involvement in the Schnaps murder.

The next day, October 30, defendant was arraigned in Superior Court for the murder of Schnaps. At about 10:00 that morning, after reissuing defendant his Miranda rights, the police started questioning him about the Schnaps murder.

Shortly after 11:00 a.m., defendant informed the officers that "he would tell [them] about the murder but he first wanted to speak to his father." Questioning ceased, and arrangements were made to transport defendant's father to the jail. Defendant had lunch and talked to the officers about "things in general." At 2:15 p.m. defendant went to the prosecutor's office, where he spoke with his father for fifteen minutes before returning to jail.

At 2:30 p.m. the interrogation resumed without new Miranda warnings or reminders. Defendant confessed having killed Schnaps. The police took him back to the prosecutor's office for a formal statement. When they read him his Miranda rights, defendant demanded an attorney. Questioning ceased.

-- 2 --

Defendant claims that he asserted his right to silence four times on October 28, two days before his confession: at the 3:30 p.m. interrogation when he asked for "time to think * * * by himself"; at the 5:00 p.m. interrogation when he asked to speak to his mother-in-law; at 7:00 p.m. when he "asked for more time"; and at the 7:30 p.m. interrogation when he began to cry and said that he "just didn't do anything."

The only statement that defendant seeks to suppress is his confession of October 30. Because of the intervening events between the alleged invocations on October 28 and the confession, we need not decide whether defendant actually invoked his right to remain silent and whether the police scrupulously honored those alleged requests. Even if the police did not scrupulously honor defendant's alleged invocations of his right to silence, the confession was "sufficiently independent to dissipate the taint of their illegal conduct." State v. Johnson, 118 N.J. 639, 653, 573 A.2d 909 (1990).

The determination of whether a confession was the "fruit" of prior illegal police conduct involves three factors:

(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct. [ Ibid. ]

None of those factors helps defendant. First, his confession was not "temporally proximate" to the alleged violations -- it occurred two days later -- nor did it follow a prolonged illegal detention. See id. at 654-55, 573 A.2d 909 (repeated constitutional violations during illegal ten-hour detention preceded defendant's escape).

Second, a number of intervening circumstances separated the alleged violations of October 28 from the confession. At 8:15 p.m. on October 28, after the fourth alleged invocation, defendant asked to speak with Detective Swanhart alone. Fresh Miranda warnings are not necessary if the accused initiates conversation after invoking the right to silence. State v. Fuller, 118 N.J. 75, 570 A.2d 429 (1990). Moreover, defendant was reminded of his rights at that time as well as later that evening. The next day he was arraigned before a municipal court judge. After receiving new Miranda warnings that afternoon, he signed a rights form. That evening he was read his rights again. The following day, October 30, he was arraigned a second time and received the Miranda warnings again.

Finally, there is no evidence of police coercion or misconduct. There were no extended interrogations designed to wear down defendant's will. Even if defendant had invoked his right to remain silent on October 28, any possible taint from the police's alleged failure scrupulously to honor his invocations was sufficiently dissipated.

The fifth time defendant allegedly invoked his right to remain silent was on October 30 when he asked to talk to his father. Although defendant indicated that he would talk about the Schnaps murder when questioning resumed, there was a significant break in the interrogation. Approximately three-and-one-half hours passed before the police resumed the interrogation.

But what makes the interruption significant is not its length so much as its nature. The request here was qualitatively different from the one in State v. Bey, 112 N.J. 123, 139, 548 A.2d 887 (1988) (Bey II), in which the defendant "requested permission to lay down and to think about what happened." The Court likened that situation to one in which a defendant asks for "something to eat or drink, the use of toilet facilities, [or] the opportunity to stand and stretch * * *." Ibid. Defendant's request here was not for a brief respite to satisfy physical needs. Instead he was asking, after three days in custody, for the chance to consult with a close family member.

Defendant's request is similar to the one in State v. Hartley, supra, 103 N.J. at 258, 511 A.2d 80, in which the defendant told the police, "I don't believe I want to make a statement at this time." In both cases the defendant suggested that he would talk to the police later. "[A] request to terminate an interrogation must be honored 'however ambiguous.'" State v. Bey, 112 N.J. 45, 64, 548 A.2d 846 (1988) (Bey I) (quoting State v. Kennedy, 97 N.J. 278, 288, 478 A.2d 723 (1984)). Certainly the request here was no more equivocal than the one in Bey I in which, according to the police, the defendant had "indicated he did not want to talk * * * about it * * *." Ibid. Defendant's conduct during three days of interrogation and his refusal to answer questions about the Schnaps murder likewise indicated that he did not want "to talk about it."

This case also resembles Law v. State, 21 Md.App. 13, 318 A.2d 859 (1974), in which the police were questioning the wounded defendant as he lay handcuffed to his hospital bed. The defendant told the police that "he didn't want to talk any more until he was further treated." Id. at 36, 318 A.2d at 872 (emphasis deleted). Despite his request, the police continued to question him. The court held that the defendant's ensuing statement was inadmissible. Although the obvious difference from this case is that here defendant was not wounded, the court's decision in Law rested on the defendant's words, not on the surrounding circumstances. In both this case and Law, the

defendants indicated that they would talk, but only after a subsequent condition had been met. In Law the condition was further treatment. Here the condition was a meeting with defendant's father. The implied intent to talk later does not change the fact, as the court found in Law and as we find here, that defendant sought to terminate the interrogation.

The importance of the police's failure to reissue Miranda warnings after defendant had met his father is clearly shown by what happened when the police finally did give him the warnings. After defendant had confessed orally, the authorities gave him new Miranda warnings before seeking to take a formal statement. Defendant immediately demanded an attorney before any statement could be reduced to writing. It is no stretch to imagine that defendant would have requested an attorney had the police given him warnings when they first interrogated him after he had met with his father.

The mandate of State v. Hartley, supra, 103 N.J. 252, 511 A.2d 80, is clear. When a defendant seeks to terminate an interrogation, the police must at a minimum give fresh Miranda warnings before recommencing questioning. Id. at 256, 511 A.2d 80. Any statement made prior to the new warnings must be suppressed. We pause to observe that although our dissenting colleague Justice Stein readily acknowledges that "defendant asserted his right to cut off questioning," post at 444, 581 A.2d at 501, nevertheless he concludes -- contrary to the unmistakable language of Hartley 's "bright line" rule, see 103 N.J. at 267, 511 A.2d 80 -- that "the resumption of interrogation [thereafter] did not constitute a failure by the police to 'scrupulously honor' defendant's right to remain silent." Post at 444, 581 A.2d at 501. Either defendant exercised his right (as we and Justice Stein conclude), or he did not (as Justice O'Hern concludes). If he did, then without question Hartley requires the readministering of Miranda warnings before the resumption of interrogation.

We apply the Hartley rule even though that rule was announced after the interrogation in this case had occurred. Retroactivity is not a consideration here. "The threshold question in any retroactivity decision is whether a new rule of law has actually been announced." State v. Burstein, 85 N.J. 394, 403, 427 A.2d 525 (1981). The issue of retroactivity "never arises absent a new rule of law * * *." State v. Lark, 117 N.J. 331, 344, 567 A.2d 197 (1989) (Clifford, J., concurring in judgment).

Hartley did not announce a new rule of law. It was "not a clear break with the past, but a simple extension of the principle of cases * * * holding that the State must honor 'a defendant's request -- however ambiguous -- to terminate interrogation.'" Bey II, supra, 112 N.J. at 213, 548 A.2d 887 (Handler, J., dissenting) (quoting State v. Kennedy, 97 N.J. 278, 288, 478 A.2d 723 (1984)). We said that our rule in Hartley was "sound as a matter of New Jersey common law [and] consistent with the spirit of the Supreme Court's decisions * * *." State v. Hartley, supra, 103 N.J. at 268, 511 A.2d 80. The foundation of our decision was Michigan v. Mosley, supra, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313, in which the Supreme Court held that the police had "scrupulously honored" the defendant's decision to remain silent because they did not approach him for two hours, they gave him fresh Miranda warnings, a different officer questioned him, and the questioning concerned a different offense from the one for which he was in custody. Although the Supreme Court did not indicate which of those elements are essential for a finding that the police "scrupulously honored" a suspect's rights, we held that the furnishing of fresh Miranda warnings is "indispensable." State v. Hartley, supra, 103 N.J. at 267, 511 A.2d 80.

In reaching that conclusion, we relied on the decisions of other courts as well as academic literature. See, e.g., Wilson v. United States, 444 A.2d 25, 31 (D.C.1982) (all Mosley factors are required to validate reinterrogation); People v. Young, 115 Ill.App. 3d 455, 71 Ill.Dec. 259, 450 N.E. 2d 947 (1983) (recess

and fresh Miranda warnings are a minimum prerequisite to reinterrogation); Kamisar, "The Edwards and Bradshaw Cases: The Court Giveth and the Court Taketh Away,"The Supreme Court: Trends and Developments 1982-83 153 (1984) (fresh Miranda warnings are necessary for renewing questioning after suspect has indicated desire to remain silent).

Because Hartley did not announce a new rule of law, retroactivity is not an issue. Any defendant who had not exhausted direct appeals when Hartley was decided could have asserted a claim based on that opinion. Because the police did not give defendant fresh Miranda warnings after he had indicated his desire to remain silent, Hartley requires that the ensuing confession be suppressed.

Moreover, even if Hartley did create a new rule of law, it would still apply here under either the Supreme Court's old analysis of retroactivity of new criminal procedure rules or its more recent pronouncement on retroactivity in Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). Under its former analysis, the Supreme Court held that Miranda itself applies to interrogations that took place before that rule was announced if the trial did not commence until after the Miranda decision (precisely the sequence in this case), see Michigan v. Tucker, 417 U.S. 433, 447, 94 S. Ct. 2357, 2365, 41 L. Ed. 2d 182, 195 (1974), but not if the case was tried before that decision, Johnson v. New Jersey, 384 U.S. 719, 733, 86 S. Ct. 1772, 1781, 16 L. Ed. 2d 882, 892 (1966). The obvious similarity between the nature and effect of Miranda and Hartley suggests that the application of Hartley should be no less broad.

Turning to the Supreme Court's most recent retroactivity pronouncements, we note first that Justice Stein correctly points out, post at 439, 581 A.2d at 499, that "'[t]o the extent that retroactivity issues arise in the context of criminal-procedure decisions implicating rights guaranteed under the federal constitution, United States Supreme Court precedents control

the scope of retroactivity,'" (citing State v. Lark, supra, 117 N.J. at 335, 567 A.2d 197 (1989), and that under Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." 479 U.S. at 328, 107 S. Ct. at 716, 93 L. Ed. 2d at 661; see State v. Stever, 107 N.J. 543, 548-53, 527 A.2d 408 (1987) (discussing Supreme Court's development of retroactivity principles). Clearly, then, Griffith mandates adherence to a Hartley analysis in this case. Justice Stein would avoid application of Griffith 's sound principle, however, on the ground that Hartley was not based "primarily" on federal-constitutional law, post at 425, 581 A.2d 491. Whatever "primarily" means in the foregoing context, our distinguished colleague is quite wrong.

First, it is abundantly clear that Hartley was grounded at least as much on the fifth amendment to the United States Constitution as it was on New Jersey's common-law privilege, codified in our Evidence Rules. No fewer than sixteen times does the opinion refer specifically to its "constitutional" basis. For example, we emphasized at the outset of Hartley that our decision was founded not only on state law but "on our understanding of the United States Supreme Court precedents in this area." State v. Hartley, supra, 103 N.J. at 256, 511 A.2d 80. And: "[T]he failure to readminister Miranda warnings was a violation of the obligation scrupulously to honor Hartley's asserted right to silence, and therefore amounted to a violation of defendant's fifth-amendment and state common-law right not to be compelled to be a witness against himself." Id. at 278, 511 A.2d 80. And: any statement obtained in violation of Hartley 's "bright-line" rule is "unconstitutionally compelled, and hence inadmissible, as having been obtained in violation of the fifth amendment and of the state common-law right against self-incrimination." Id. at 279, 511 A.2d 80. And finally: "[T]he failure scrupulously to honor Hartley's previously-invoked

right to silence was a violation of constitutional magnitude * * *." Id. at 283, 511 A.2d 80.

Second, one need look no further than Justice Stein's own opinion for the Court in Bey I, supra, 112 N.J. 45, 548 A.2d 846, for confirmation of the federal-constitutional basis of Hartley: "As in Hartley * * * we base our analysis [of whether the police had scrupulously honored Bey's right to cut off questioning] on both federal constitutional law and our State common-law privilege against self-incrimination." Id. at 63, 548 A.2d 846 (citing Hartley, supra, 103 N.J. at 284, 511 A.2d 80). And: " Hartley held that where the failure scrupulously to honor a suspect's right to cut off questioning results from the absence of fresh Miranda warnings before resuming questioning, the illegality renders the suspect's subsequent inculpatory statement unconstitutionally compelled as a matter of law." Id. at 71, 548 A.2d 846 (emphasis added).

Note too that in Bey the interrogation occurred in May 1983 and the trial court heard the motion to suppress Bey's confession late in that same year. This Court decided Hartley in July 1986 and Bey I more than two years later, in August 1988. In Bey I we simply applied Hartley to a case that had been on direct appeal when Hartley was decided. See id. at 58-74, 548 A.2d 846. Likewise, in Bey II, supra, 112 N.J. 123, 548 A.2d 887, this Court engaged in a full discussion of the Hartley principle, see id. at 134-43, 548 A.2d 887, prompting two dissents on the issue of the admissibility of the defendant's confession under a Hartley analysis, see id. at 184-88, 548 A.2d 887. There was no necessity to discuss or rule on any question of Hartley 's retroactivity, because the Court assumed, again correctly, its applicability. No more was it ...

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