On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. 06-05-977.
The opinion of the court was delivered by: Wefing, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, R. B. Coleman and Lyons.
A grand jury returned a seven-count indictment against defendant, charging him with murder, N.J.S.A. 2C:11-3(a)(1),(2); felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree robbery, N.J.S.A. 2C:15-1; theft, N.J.S.A. 2C:20-3; burglary while armed, N.J.S.A. 2C:18-2; unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). Defendant filed a motion seeking to suppress a statement he gave to the police. The State does not dispute defendant's assertion that it has no other evidence to place him at the scene of the homicide other than this statement. After conducting several days of hearings, the trial court concluded that defendant had voluntarily waived his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). We granted defendant's motion for leave to appeal. After reviewing the record in light of the contentions advanced on appeal, we reverse the trial court's order.
Defendant raises two arguments on appeal:
THE TRIAL COURT'S DENIAL OF BURNOTAYLOR'S MOTION TO SUPPRESS THE DECEMBER 20, 2005 STATEMENT WAS BASED UPON ERRONEOUS FINDINGS OF FACT AND MISAPPLICATION OF CONTROLLING FEDERAL AND STATE LAW WHEN IT RULED THAT THE STATE DID NOT VIOLATE THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CONCOMITANT COMMON LAW RIGHT UNDER STATE V. HARTLEY BY FAILING TO SCRUPULOUSLY HONOR BURNO-TAYLOR'S INVOCATION OF HIS PROTECTION FROM SELF-INCRIMINATION
A. The Trial Court Erred In Determining That Burno-Taylor Never Invoked His Right To Remain Silent
B. The Trial Court Erred In Linking BurnoTaylor's Rights To Remain Silent and His Right To Counsel
C. The Trial Court Erred In Determining That Law Enforcement Never Made Any Untrue Statements, Threats, or Misleading or False Promises
THE "INTERROGATION: ADVICE OF RIGHTS" FORM USED IN THIS CASE IS PER SE UNCONSTITUTIONAL AS IT REQUIRES DECLARANTS TO SIMULTANEOUSLY ACKNOWLEDGE AND WAIVE THEIR RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND NEW JERSEY'S COMMON-LAW PRIVILEGE AGAINST SELF-INCRIMINATION
Before analyzing the facts of the instant matter, we set forth the legal principles which must guide our analysis of these facts. In Miranda v. Arizona, our United States Supreme Court set forth the rule that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 706. It held that a statement taken in the absence of those procedural safeguards could not "truly be the product of [a defendant's] free choice." Id. at 458, 86 S.Ct. at 1619, 16 L.Ed. 2d at 714.
Thus, prior to any custodial interrogation, an individual must be informed of his right to remain silent. Id. at 467-68, 86 S.Ct. at 1624, 16 L.Ed. 2d at 720. This warning is "an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere," because it dispels the idea "that the interrogation will continue until a confession is obtained or that silence in the face of accusation is itself damning." Id. at 468, 86 S.Ct. at 1624, 16 L.Ed. 2d at 720. This warning is designed "to insure that the individual knows he is free to exercise the privilege at that point in time." Id. at 469, 86 S.Ct. at 1625, 16 L.Ed. 2d at 720.
In addition, to assure that the individual understands and can make an intelligent choice whether to exercise the privilege, the individual must also be told "that anything said can and will be used against the individual in court." Id. at 469, 86 S.Ct. at 1625, 16 L.Ed. 2d at 720-21. It is only upon being advised of the Miranda rights that an individual may make a reasonable decision whether to proceed. A decision to proceed, however, is not irrevocable.
If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.
[Id. at 473-74, 86 S.Ct. at 1627-28, 16 L.Ed. 2d at 723 (footnote omitted).]
An individual may, of course, waive the privilege against self-incrimination, but the prosecution must show that the waiver was made "voluntarily, knowingly and intelligently." Id. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 707.
[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.
[Id. at 476, 86 S.Ct. at 1629, l6 L.Ed. 2d at 725.]
Although New Jersey's constitution does not contain an explicit statement of the privilege against self-incrimination, our courts have long recognized it as being subsumed within our constitution's guarantee of due process. "New Jersey's privilege against self-incrimination is so venerated and deeply rooted in this state's common law that it has been deemed unnecessary to include the privilege in our State Constitution."
State v. O'Neill, 193 N.J. 148, 176 (2007). New Jersey's privilege is "treated . . . as though it were of constitutional magnitude," and it is informed by the principles contained in Miranda. Id. at 168-69, 176-77. Indeed, our courts have interpreted our privilege as "offer[ing] broader protection than its Fifth Amendment federal counterpart." Id. at 176-77. Before a confession can be admitted into evidence against a defendant, the State must prove that it was made voluntarily, knowingly and intelligently. As a matter of state law, the prosecution must carry its burden in this regard beyond a reasonable doubt. State v. Burris, 145 N.J. 509, 534 (1996); State v. Gerald, 113 N.J. 40, 118 (1988).
In State v. Hartley, our Supreme Court addressed the question whether law enforcement had "scrupulously honored" an individual's right to remain silent. 103 N.J. 252, 255-56 (1986). The defendant in that case was given his Miranda warnings both at the time of his arrest and in an interview room, where he was presented with a form containing the Miranda warnings and waiver language almost identical to the waiver language on the form in this matter. Id. at 258. And, like the present matter, the signature line was located under the waiver language. Ibid. Thus, as the Hartley Court noted, "the only purpose of the signature was not to acknowledge receipt of one's rights but, rather, to indicate a waiver of those rights." Ibid. Hartley reviewed the form and said he understood it. He hesitated and when asked what the problem was, responded, "I don't believe I want to make a statement at this time." Ibid.
The officer replied, "Fine. If you don't want to make a statement at this time, strike that particular item and initial it." Ibid. Hartley did so; he was fingerprinted and photographed but not questioned. Ibid.
A few hours later, however, the officer returned and asked the defendant to reconsider, saying "[N]ow is the time if you are going to make a statement. Now is the time to do it." Ibid. Hartley responded, "What do you want to know?" Id. at 259. The officer proceeded to question the defendant, who ultimately gave a confession. Ibid. He would not, however, sign a typed statement. Ibid.
The defendant was again questioned at a later point and again advised of his Miranda rights. Ibid. He again refused to sign a typed statement and would not agree to be tape-recorded. At trial, his oral statements were held admissible as evidence against him. Ibid.
Our Supreme Court, however, reversed. It commenced its analysis by noting the distinction between scrupulously honoring the right to remain silent and an individual's waiver of that right. The question whether an individual has waived the right to remain silent cannot be addressed, the Court stated, without first determining "whether the defendant's right to remain silent has been properly respected in the first instance." Id. at 260. The Court noted that the Miranda Court had "made clear that the requirement that the police 'scrupulously honor' the suspect's assertion of his right to remain silent is independent of the requirement that any waiver be knowing, intelligent, and voluntary." Id. at 261. It is critical that the questions be analyzed separately. When the police fail to scrupulously honor the right to remain silent, that failure "renders unconstitutionally compelled any resultant incriminating statement made in response to custodial interrogation [and] there can be no question of waiver." Ibid. The Hartley Court concluded after reviewing the chronology and the context that the officer's conduct had been "coercive" and that the officer had not scrupulously honored the defendant's assertion of his right to remain silent. Id. at 267-71. The Court, therefore, held that any statements made by the defendant were "involuntary by definition" and inadmissible at his trial. Id. at 278.
A person can assert the right to remain silent by "indicat[ing] in any manner, at any time prior to or during questioning, that he wishes to remain silent." Miranda, supra, 384 U.S. at 473-74, 86 S.Ct. at 1627, 16 L.Ed. 2d at 723. New Jersey courts have recognized that even an ambiguous indication of a desire to remain silent is sufficient to require that questioning cease. State v. Johnson, 120 N.J. 263, 281-82 (1990); State v. Bey, 112 N.J. 45, 64-65 (1988) ("Bey I") ("a request to terminate an interrogation must be honored 'however ambiguous'") (quoting State v. Kennedy, 97 N.J. 278, 288 (1984)). If the police are reasonably uncertain whether the person is asserting the right to remain silent, they may only ask questions directed to resolving that uncertainty. Johnson, supra, 120 N.J. at 283.
On the other hand, the police may continue their questioning so long as the person's words or conduct could not reasonably be viewed as invoking the right to remain silent. State v. Bey, 112 N.J. 123, 136-38 (1988) ("Bey II"). In Bey II, the defendant had been interrogated for two to three hours when he said he "wanted to lie down so that he could think about what happened." Id. at 133. The Court concluded that defendant's statement, given the circumstances, could not reasonably be viewed as an assertion of the right to remain silent. Id. at 141-42. It stated:
Defendant merely communicated his desire to spend some time thinking about the events that were the subject of the interrogation. He did not ask for an attorney or refuse to sign a waiver of his rights. Similarly, he did not refuse to continue the questioning, and did not indicate in any manner that he wanted to end the interrogation.
[Id. at 138 (emphasis added).]
We turn now to the record before us. Defendant was charged with the killing of Sonja Svenson, who was found stabbed to death in her Bayonne apartment on December 18, 2005, by defendant's mother and sister. Detectives from the Hudson County Prosecutor's Office noted that her jewelry box was open and that her dresser drawers had been opened and the contents dumped on her bed.
For reasons that are not apparent from the record before us, the initial investigation by detectives from the prosecutor's office led them to consider defendant a "person of interest" in connection with this homicide. On December 20, 2005, detectives from the prosecutor's office learned that defendant was being held in the Hudson County Administration Building, where he was waiting to appear before the trial court. Defendant was in custody because he had been arrested by Bayonne police on December 18 on unrelated charges of possession of narcotics and contempt of court; this arrest led to defendant being charged with violating the terms of his probation. The record before us does not reveal the underlying offense which resulted in defendant receiving a probationary sentence. Before defendant appeared before the trial court on the charge of violating his probation, however, a detective from the prosecutor's office went to the Administration Building and brought defendant to the office of the prosecutor's homicide unit, located in a separate building approximately two miles away from the Administration Building.
When they arrived, defendant was placed in a small, windowless interrogation room. Defendant had been handcuffed during the trip from the Administration Building, but once in the interrogation room, the handcuffs were removed. Defendant was initially questioned by Detectives Jeffery and Pastrana of the prosecutor's office. This interrogation room is equipped with video and audio recording systems and defendant's entire interrogation was recorded. We have been supplied with both a copy of the videotape of the interrogation and a transcript in connection with this appeal, and we have reviewed both several times in our consideration of the merits of this appeal. We will set forth extensive portions of that interrogation during the course of this opinion.
Early on, Detective Jeffery told defendant he was going to read to him his Miranda rights. Defendant asked if he were being charged with something and Detective Jeffery said no. He explained to defendant that he was reading his rights because defendant was "already under arrest," presumably referring to the charge of violating probation. Detective Pastrana said to defendant it was "just a formality," and Detective Jeffery echoed that thought, saying, "Formality that's all it is. It's nothing okay?"
Detective Jeffery then read defendant his Miranda rights, and defendant indicated that he understood them. Detective Jeffery then asked, "You ah you want to talk to us?" and handed a waiver form to defendant for his signature. The form was headed "Interrogation: Advice Of Rights," and contained the following language:
Before we ask you any question, you must understand your rights.
1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to talk to a lawyer for advice before you ask we ask you [sic] any questions, and to have him/her with you during questioning.
4. If you cannot afford a lawyer, one will be appointed for you, before any questioning. If you wish [sic].
5. If you decide to answer questions now, without a lawyer present [sic]. You will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
I HAVE READ THIS STATEMENT OF MY RIGHTS, AND UNDERSTAND WHAT MY RIGHTS ARE. I AM WILLING TO MAKE A STATEMENT AND ANSWER QUESTIONS. I DO NOT WANT A LAWYER AT THIS TIME. I HAVE UNDERSTAND [sic] AND KNOW WHAT I AM DOING. NO PROMISES OR THREATS HAVE BEEN MADE TO ME AND NO PRESSURE OR COERCION OF ANY KIND HAS BEEN USED AGAINST ME.
Near the top of the form were lines for the interviewing officer to enter the place, date, and time. At the bottom, below the "waiver of rights" clause, were signature lines for the person being interviewed and for two witnesses, as well as a line to record the time at which the form was signed.
Defendant spent a little more than a minute reading the waiver form. Detective Jeffery asked, "You ah, you gonna sign it?" Defendant replied, "Uh-uh." When asked why not, defendant replied, "This says I am willing to make this statement and answer questions," referring to the second sentence in the waiver of rights clause. The two detectives tried to reassure defendant that he was not being charged with anything. Defendant said, "It's got 'interrogation' up there," referring to the title on the form. Detective Pastrana told defendant that "interrogation" just meant asking him questions.
For the next twenty-two minutes, defendant resisted signing the form. Including the initial refusal we just noted, he indicated a total of eleven times that he would not sign the form. He also clearly indicated that he did not want to talk to the detectives. After refusing for the fourth time to sign the form, Detective Jeffery asked, "You want to talk to us though?" Defendant answered, "Uh-uh." The conversation continued:
A: I want to know what you wanna talk about? Q: Well we can't tell you till you say you'll, you agree to talk to us.
A: I ain't going to sign.
Q: Will you agree to talk to us?
Q: Once, once we get rid of this silly piece of paper we're on our way.
A: I ain't gonna sign it.
A: I'm not gonna sign it.
Q: Okay. Will you talk to us?
A: You just said I got to sign this to talk to you.
Q: No, you, you, you really don't have to sign it but you can talk to us.
A: What do you want to talk about?
The detectives persisted in their attempts to persuade defendant to talk to them and answer their questions. They continued to ask if he were willing to talk to them; defendant inquired several times what they wanted to talk to him about; they responded they would tell him if he agreed to talk to them. On that basis, defendant finally agreed to talk to the detectives but he persisted in his refusal to sign the waiver form.
When the detectives nonetheless continued to seek to have defendant sign the form, defendant said he did not want to talk to the detectives at all. At that point, the following colloquy occurred:
Q: (Det. Jeffery): We're going to talk to you. Had you not been in Kearny [presumably a reference to the Hudson County Correctional Facility] we probably wouldn't have to read these things.
Q: (Det. Pastrana): See being that you're locked up we have to read you your rights.
Q: (Det. Jeffery): That's it.
Q: (Det. Pastrana): But if you were still on, on, by, Bayonne we would have scooped you up on Bidwell we would have scooped you up and we didn't have to go through this. Believe me we were gonna scoop you up until you were arrested Bayonne Sunday.
Q: (Det. Jeffery): You gonna talk? Yes or no. We need you to say yes. If you say yes I write refuse to sign and that's it and we talk, we just, we just go our way, you know.
A: I still go to court though, right?
A: I don't go to court today?
Q: (Det. Pastrana): Yeah.
Q: (Det. Jeffery): Today you got to . . .
Q: (Det. Pastrana): I think so.
Q: (Det. Jeffery): That thing going on.
Q: (Det. Pastrana): Judge Callahan, right?
Q: (Det. Jeffery): Did you see the Judge yet?
Q: Then you probably go to Court. You gonna talk? Why not?
Q: Why don't you want to talk to us?
A: I want to know what you want to talk about. I don't really have anything to talk about.
Q: Let's make believe we're just regular guys.
A: I don't really want to talk to you.
Q: We've talked to your mom, we've talked to Sharleese. We've talked to ah, Tracey,*fn1 we've talked to Mike Williams, who's your uncle.
At that point, a sergeant from the prosecutor's office entered the interrogation room and joined the conversation.
Q: (Sgt. Kolich): All right, let me explain what is going on, okay. I understand that you got arrested by Bayonne Police.
Q: Okay we don't want to talk to you ...