On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication March 7, 1996.
Before Judges Havey, Conley and Braithwaite. The opinion of the court was delivered by Conley, J.A.D.
The opinion of the court was delivered by: Conley
The opinion of the court was delivered by CONLEY, J.A.D.
Following an unsuccessful Miranda *fn1 hearing, and reserving the right to appeal the Miranda ruling, defendant pled guilty to one count of third degree conspiracy to commit theft, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:5-2 (count one), nine counts of third degree burglary, N.J.S.A. 2C:18-2 (counts two through ten), and one count of third degree theft, N.J.S.A. 2C:20-3 (count eleven). Count one merged with count eleven, and concurrent five year terms of probation were imposed on each of the burglary counts as well as the theft count. A Violent Crimes Compensation Board penalty of $50 on each count and restitution of $9,205 was also imposed. *fn2 Defendant argues before us that his custodial statement should have been suppressed because the police did not scrupulously honor the invocation of his right to remain silent or his request for an attorney. We think this may be so, but, for the following reasons, remand for a limited evidentiary hearing. Cf. State v. Hutchins, 116 N.J. 457, 476, 561 A.2d 1142 (1989); State v. Jackson, 272 N.J. Super. 543, 564, 640 A.2d 863 (App. Div. 1994), certif. denied, 142 N.J. 450 (1995).
The critical facts as presented at the Miranda hearing are as follows. On December 4, 1991, a burglary occurred at a New Jersey Bell facility in East Brunswick. Defendant's girlfriend at the time was the daughter of an East Brunswick police lieutenant. Defendant had become friendly with the lieutenant. Apparently, the girlfriend had indicated to her father that defendant was involved in the burglary. A warrant was issued for defendant's arrest and when he learned of that, he voluntarily went to the East Brunswick police headquarters on the morning of June 2, 1992. Two officers ultimately talked to him, but only one, Sergeant Mitchell, was produced by the State. According to Sergeant Mitchell, he placed defendant under arrest and administered his Miranda warnings at 11:30 a.m. The Miranda card that defendant then executed was witnessed only by Sergeant Mitchell. Sergeant Mitchell began to discuss the break-in with defendant and informed him that his girlfriend had come forward and that the police possessed a taped telephone conversation he had had with her concerning the crime. Defendant indicated that he had some things he wanted to say, but that he wished to consult with an attorney. The sergeant was not sure of defendant's exact words but defendant had indicated that he wanted to tell him something but wanted to think about calling an attorney and did not want to discuss the matter any further. The sergeant characterized defendant's desire not to discuss the matter and to consult an attorney, however phrased, as "emphatic." It was "not more than ten to fifteen minutes" from the time defendant signed the rights card to the time that he invoked his right to remain silent and expressed a desire to consult an attorney. The sergeant ceased questioning him about the crimes, but continued to discuss personal matters which "covered everything from ... [his girlfriend and her father, the police lieutenant] to what type of work he was doing, what his plans were, that type of thing."
Sergeant Mitchell then left the room where defendant was confined and informed his immediate supervisor, Sergeant Gomolka, that the defendant had requested an attorney and did not wish to discuss the matter. Sergeant Gomolka, nonetheless, wanted to speak to the defendant and went into the room where defendant was. He and defendant had a conversation for a short period of time. When Gomolka came out of the room, he told Sergeant Mitchell that defendant now wanted to speak to him. Sergeant Mitchell did not know what transpired in the room between defendant and Sergeant Gomolka but reentered the room, informed defendant that he did not have to speak to him, readvised him of his Miranda rights in the presence of Sergeant Gomolka, and then all three signed the second Miranda card at 12:28 p.m. Defendant then gave a statement at 12:48 p.m. which was tape recorded and transcribed.
Defendant testified at the Miranda hearing that after he had requested to speak to an attorney, Sergeant Mitchell told him that it was "too late" to contact one and that he would probably have to go to the workhouse. The sergeant also told him that his bail status would be $25,000 cash, but that the police could recommend that he be released R.O.R. to avoid having his name in the newspaper, losing his job, and having his parents find out about the offense if he would "give them what they needed." Defendant thought Sergeant Gomolka was also in the room at that time. Defendant testified that he requested an attorney four or five times before his statement was taken. After he gave the police his statement, they released him and told him to appear in municipal court the next day.
In rebuttal, Sergeant Mitchell testified that he had no recollection of discussing defendant's parents, publicity, or bail. He admitted that the case was treated differently from a regular case because of the involvement of Lieutenant Kenney and his daughter. With respect to bail, he also admitted:
Initially we were going to set bail. But after speaking with my sergeant, after speaking with the Judge, if you noticed on the bottom of the warrant we made it to be set. Okay? And I felt I needed a chance to speak with Robert before any type of bail situation was placed on him again out of respect to Lieutenant Kenney.
He denied threatening defendant with being sent to the workhouse and setting $25,000 bail.
As we have said, Sergeant Gomolka was never called by the State. It was he, however, who, according to Mitchell, had a separate conversation with defendant after defendant had invoked his right to remain silent and had indicated a desire to consult with an attorney. It was that conversation, apparently, which prompted defendant to change his mind and to give a statement. We are of the view that his testimony is critical, both in terms of whether defendant's initial assertion of his right to remain silent was "scrupulously honored" such that the readministration of the Miranda warnings followed by defendant's waiver thereof satisfied State v. Hartley, 103 N.J. 252, 511 A.2d 80 (1986), and in terms of whether the bright-line proscription of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), that is triggered upon an assertion of the separate, but ancillary, right to counsel, was complied with.
Preliminarily, we reject the State's contention that the right to counsel issue was not raised below. To be sure, this is not a Sixth Amendment right to counsel issue. But both Sergeant Mitchell's testimony, as well as defendant's, plainly establishes that defendant asserted his right to counsel as part of his custodial rights that arise from the privilege against self-incrimination. See State v. Reed, 133 N.J. 237, 251-52, 627 A.2d 630 (1993). Moreover, even if not precisely raised below, we would still consider the issue. See State v. Bey (II), 112 N.J. 123, 140, 548 A.2d 887 (1988).
The trial court here determined solely whether defendant's waiver of his rights following the second reading of Miranda warnings was knowing and voluntary. As to the Conclusion that it was, we have no quarrel. State v. Johnson, 42 N.J. 146, 199 A.2d 809 (1964). But where the right to remain silent is invoked, an inquiry must be made as to the scrupulous honoring of that invocation, State v. Hartley, supra, 103 N.J. at 260-61, and where the right to an attorney is exercised, an analysis of the proscription in Edwards v. Arizona, supra, 451 U.S. at 484-85, 101 S. Ct. at 1885, 68 L. Ed. 2d at 386, must be made. It is only if these rights have not been exercised, that the State then has just the "heavy but lesser burden" of demonstrating a knowing, intelligent and voluntary ...