On appeal from Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication May 10, 1995
Before Judges Muir, Jr., D'Annunzio and Eichen. The opinion of the court was delivered by D'annunzio, J.A.D.
The opinion of the court was delivered by: D'annunzio
Tried to a jury under Camden County Indictment No. 1109-4-90, defendant was convicted of first degree aggravated sexual assault and second degree sexual assault. The court sentenced defendant to fifteen years imprisonment for the first degree offense and to a concurrent term of seven years for the second degree offense. Defendant appeals.
Defendant contends that his confession should have been suppressed because he was denied the opportunity to speak with a lawyer during interrogation when the lawyer called the police station. The lawyer had been retained by defendant's mother moments after defendant was arrested. In State v. Reed, 133 N.J. 237, 627 A.2d 630 (1993)(hereafter Reed), the New Jersey Supreme Court held, under New Jersey law, that the police should have informed a defendant held in custody that an attorney had arrived at the police station asking to speak with him. Failure to so inform a defendant in such a situation requires suppression of any statement made thereafter. Reed was decided three and one-half years after Abronski's arrest and two years after his conviction. The issue is whether Reed applies retroactively to defendant's circumstances.
On January 30, 1990, Detective William Cruthers and Officer Robert MacFarland of the Gloucester City Police Department executed a warrant for defendant's arrest. They went to defendant's mother's house, where defendant answered their knock on the door. Defendant was asked to step outside, whereupon he was given a copy of the warrant and placed under arrest. Defendant then asked his mother to bring him a pack of cigarettes, and she complied. Cruthers testified that he was standing three feet from defendant. Both officers denied hearing defendant say anything to his mother about securing the services of an attorney. Defendant was then taken to the police car, where he was patted down and placed in the rear seat. Once in the car, defendant was advised of his Miranda rights by Cruthers. Defendant asked Cruthers "what [this] was all about," and Cruthers told him that he did not know because he had not conducted the investigation. Defendant was then driven to the Gloucester City police station, which is about two minutes from his mother's house. They arrived at approximately 10:30 a.m.
Once at the police station, defendant was taken to Cruthers' office on the second floor of the building. At that time, defendant was again advised of his Miranda rights, and was supplied with a Miranda card which defendant signed. Cruthers testified that defendant nodded his head affirmatively when asked if he understood the Miranda warnings. Defendant was asked if he would give a statement, and he said that he would "talk about it."
Cruthers and MacFarland then waited a few minutes for Investigators Clare Walsh and Reginald Beckett to arrive. Walsh explained the charges to defendant. She then offered to play a videotaped interview of J.R. for defendant, in which J.R. accused defendant of sexually abusing her. Defendant agreed to watch the tape. After the videotape was shown, Walsh asked defendant if he would feel more comfortable if she left the room. Defendant responded affirmatively, and Walsh left. Walsh described defendant at that point as being a little upset. Beckett and Cruthers then engaged in a brief conversation with defendant, during which he admitted the allegations against him were true. Defendant was then asked if he would be willing to give a tape recorded statement, and he agreed. Before giving the statement, defendant was allowed to use a bathroom.
At the beginning of the formal statement, at 11:41 a.m., defendant was asked if he had been advised of his Miranda rights, and he indicated that he had. Defendant also agreed that he had signed the Miranda card and understood his rights and still wished to make a statement. In his statement, defendant said that at some point after the fourth of July 1988, he was lying on the couch naked under a blanket in the living room, feeling sexually aroused, when he asked J.R. to come near him. He asked J.R. to place her mouth over his penis, which she proceeded to do for approximately three to five minutes. When he realized what he was doing, defendant asked J.R. to stop and leave the room, but two minutes later he asked her to come back into the room. Defendant then masturbated and ejaculated in front of her. Defendant stated that at the time he was feeling lonely, and that he had not been getting much sexual attention from J.R.'s mother.
While defendant was being questioned, a dispatcher told Cruthers that defendant's mother had come to the police station. However, Cruthers did not interrupt the interrogation to allow defendant to see his mother. The dispatcher also told Cruthers that an attorney had called the station and asked to speak to defendant. Cruthers advised the dispatcher to take the attorney's phone number because the officers were in the middle of the interview. Beckett similarly testified that during the interview he was called from Cruthers' office and told that an attorney was on the phone on defendant's behalf. Beckett spoke to the attorney, but did not inform defendant of the phone call. After defendant gave his statement, he was allowed to speak to his mother. Defendant was then taken to the county jail.
The threshold question in retroactivity analysis under State law is whether a new rule of law has actually been announced. State v. Burstein, 85 N.J. 394, 403, 427 A.2d 525 (1981). *fn1 Approximately four years before Abronski's arrest, the United States Supreme Court, in Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), held that the failure of the police to inform a suspect held in custody of an attorney's efforts to reach him did not invalidate the suspect's waiver of his privilege against self-incrimination. The Court reasoned:
Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. . . . We have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights.
[475 U.S. at 422, 106 S. Ct. at 1141, 89 L. Ed. 2d at 421.]
The Moran Court went on to add: "Nothing we say today disables the States from adopting different requirements for the conduct of their employees and officials as a matter of state law." 475 U.S. at 428, 106 S. Ct. at 1144, 89 L. Ed. 2d at 425. In Reed, our Supreme Court adopted a different requirement:
When, to the knowledge of the police . . . an attorney is present or available, and the attorney has communicated a desire to confer with the suspect, the police must make that information known to the suspect before custodial interrogation can proceed or continue. Further, we hold that the failure of the police to give the suspect that information renders ...