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State v. Boretsky

April 5, 2006

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
BORIS BORETSKY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Defendant Boris Boretsky was charged with capital murder in the death of his estranged wife, Saoule Moukhametova. During jury selection prior to defendant's trial, we granted leave to appeal to review a pre-trial order suppressing some of defendant's statements made to police officers responding to defendant's 9-1-1 telephone call for assistance. State v. Boretsky, The opinion of the court was delivered by: Justice LaVECCHIA

Argued October 11, 2005

Defendant Boris Boretsky was charged with capital murder in the death of his estranged wife, Saoule Moukhametova. During jury selection prior to defendant's trial, we granted leave to appeal to review a pre-trial order suppressing some of defendant's statements made to police officers responding to defendant's 9-1-1 telephone call for assistance. State v. Boretsky, 185 N.J. 250 (2005). Defendant's statements were made to the officers immediately before, and also after, his arrest at the victim's home. After hearing oral argument, we issued an order reversing the order of suppression in light of the imminent start of trial. This opinion supplements our order.

I.

Shortly before midnight on March 3, 2002, Officer John Penney of the South Brunswick Township Police Department was dispatched to Moukhametova's residence. He was responding to a 9-1-1 telephone call in which the caller reported that Moukhametova had attempted suicide. The 9-1-1 call was placed from Moukhametova's home by defendant, her estranged husband. The couple was known to the South Brunswick police. Approximately six weeks earlier, South Brunswick officers had responded to a domestic violence incident at the home. As a result of that incident, Moukhametova obtained a temporary restraining order (TRO), and later a final restraining order (FRO), against defendant before the events of March 3. The 9-1-1 dispatcher informed Officer Penney about the FRO when sending him on the assignment.

Upon arriving at Moukhametova's home, Penney observed defendant pacing by the living room window talking on a portable phone. Before seeking entry, Penney confirmed that the 9-1-1 dispatcher was not on the line with defendant. After Penney knocked on the door, defendant answered with the telephone in hand. Defendant attempted to hand the instrument to Penney, saying "can you speak to my attorney?" Penney responded that he was there for a first-aid call and asked where defendant's wife was. Defendant allowed Penney into the house and directed him to the living room where Penney observed Moukhametova's motionless body lying on a couch. It was obvious that she had a chest injury. On a coffee table nearby lay a kitchen knife with blood on it. Penney called for first aid assistance and then asked defendant when he had heard last from his wife. Defendant's response -- that he had seen her or talked to her around 4:00 p.m. -- is the first statement that the motion court suppressed. Defendant again tried to hand the portable telephone to Penney, repeating "can you please talk to my attorney?" Penney did not take the phone. Instead he attended to Moukhametova and told defendant to stop moving around.

Defendant was standing and watching Penney when Officer Reeves and then Officer LaPoint entered the living room. At Reeves' direction, defendant sat down on the living room floor. As the officers continued to attend to Moukhametova, defendant persisted in holding and waving the telephone, saying "talk to my lawyer" or "my lawyer is on the phone." The officers ignored defendant's disruptions until, at some point, they took the phone and threw it onto a sofa beyond defendant's reach; the bloodied knife, however, remained unsecured on the table nearby.

Officer LaPoint drew his gun, pointed it at defendant, and ordered him to lie face down on the floor. Defendant was placed under arrest for violating the FRO and was administered Miranda warnings.*fn1 While defendant was being led outside to a waiting patrol car, he asked how his wife was doing. The officer responded that he did not know. The officer then asked defendant "how long did you wait to call the police?" Defendant's response -- that he waited forty-five minutes to call 9-1-1 after his wife was stabbed -- is the second statement suppressed by the motion court.

Additional officers arrived at Moukhametova's home that evening. One officer approached defendant as he was being placed into the patrol car and observed apparent blood stains on defendant's clothing. The officer directed that defendant's clothes be secured in bags. Hearing that, defendant blurted out "I tried to help." A short time later, while defendant was in the back of the patrol car, he asked one of the officers whether his wife was "okay." The officer did not respond.

While being processed at police headquarters, defendant repeatedly asked about his wife's condition. The processing officer responded that he did not know. Defendant began to complain of chest pains and, while he clutched his chest, blurted out "I'm sorry." Defendant was taken by ambulance to a hospital where he was treated for his complaints. After defendant received medical attention, several detectives decided to question him. Defendant was advised again of his Miranda rights and acknowledged his understanding of those rights. He agreed to questioning, during which he again repeatedly asked about his wife's condition. Defendant's statement made in response to police questioning at the hospital the morning of March 4, 2006 was suppressed later by the motion court.

In May of 2002, defendant was indicted and charged with the murder of Moukhametova, in violation of N.J.S.A. 2C:11-3(a)(1), (2). He also was charged with aggravated assault, N.J.S.A. 2C:12-1(b); terroristic threats, N.J.S.A. 2C:12-3(a); contempt, N.J.S.A. 2C:29-9(b); burglary, N.J.S.A. 2C:18-2; possession of a weapon with the purpose to use it unlawfully, N.J.S.A. 2C:39-4(d); and tampering with evidence, N.J.S.A. 2C:28-6(1).

Defendant moved to suppress all statements that he made to the police on March 3 and 4, 2002. The motion court found that defendant invoked his right to counsel by repeatedly asking the responding officers to speak to his attorney on the telephone. The court also found that defendant was effectively in custody during that period. Accordingly, the court suppressed the statements defendant made in response to police questioning, but not those that he made spontaneously. As a result, defendant's repeated questions about how his wife was doing were not suppressed. Nor did the court suppress defendant's ...


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