On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2688.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and Waugh.
By leave granted, we review an order denying defendant's motion to suppress statements made by him during a police interrogation. In the presence of his mother, defendant gave a videotaped statement to police officers describing his involvement in the August 4, 2007 shooting of four students, three of whom died, in a Newark schoolyard.
Defendant, who was fifteen years old at the time, maintains his statement was obtained in violation of his Miranda*fn1 rights because (1) police officers failed to properly clarify his mother's inquiry about defendant's right to counsel; (2) defendant invoked his right to remain silent and police did not honor it; and (3) his mother was unable to understand English, and the English portions of the interview were not properly translated for her. We hold the Miranda rights of both defendant and his mother were violated when officers failed to adequately address defendant's mother's inquiry about whether the rights she read aloud meant she could not have an attorney at that moment and because police continued to question defendant after he unequivocally and unambiguously informed them he did not want to give a statement. We, therefore, reverse.
Defendant and five others have been charged in connection with the August 4, 2007 incident with second degree conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; four counts of first degree robbery, in violation of N.J.S.A. 2C:15-1; three counts of first degree felony murder, in violation of N.J.S.A. 2C:11-3(a)(3); first degree conspiracy to commit murder, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1), (2); three counts of first degree murder, in violation of N.J.S.A. 2C:11-3(a)(1), (2); first degree attempted murder, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1), (2); third degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b); second degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); fourth degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(d); and third degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d).*fn2
This appeal presents two issues. First, we consider whether defendant's mother fully understood her son's constitutional rights. Second, we must determine whether defendant invoked his right to remain silent or simply asked a question to clarify his rights and his understanding of the interrogation process.
Following the shootings in the schoolyard, the Newark police named defendant's cousin, Jose Carranza, a suspect. At 12:30 a.m. on August 8, 2007, police officers went to defendant's apartment in search of Carranza. Defendant's stepfather answered the door and retrieved defendant, who had been asleep. Before Sergeant Miguel Arroyo finished introducing himself, defendant stated, "I know why you're here. It's about the playground. I was there." The police informed the stepfather that they needed to question defendant further at the Newark Police Department Homicide Station (the Station), but the stepfather was unable leave because a young child was asleep in the apartment. Lieutenant Carrego transported defendant to the Station and Sgt. Arroyo arranged to locate his mother, who worked in a factory on the night shift.
Defendant's mother arrived at the Station approximately sixty to ninety minutes later. Police had placed defendant in a conference room to await her arrival. When she arrived, Sgt. Arroyo initially addressed her in English. When she told him "I understand English, but I rather you speak to me in Spanish," he spoke to her in Spanish. Arroyo brought her to the conference room and set up the video equipment. Four officers were in the room with defendant and his mother. The interrogation commenced at approximately 3:30 a.m.
Prior to questioning defendant, Arroyo administered Miranda rights to defendant's mother by having her read aloud a Spanish version of a Miranda form. The form contained eighteen typographical errors. The videotape of the interrogation reveals she read the form freely, stumbled over a few of the words, but eventually deciphered those words.
After reading the form aloud, defendant's mother asked Arroyo a question regarding her right to have an attorney. She asked "What is still not clear to me is -- that at this moment, I cannot have an attorney assigned to me?" Arroyo responded as follows: "If you want -- if you read -- if you want," at which point she stated, "Yes." Arroyo continued:
If you want -- you read your rights, before, if -- if he wants to tell me what happened when he was there, okay. Um -- what happened, he has to sign the paper, do you understand? These are your rights, okay. I am not telling you that he -- I am not telling you that you don't have to get an attorney. But if he wants to tell me what happened, he has to sign the paper, do you understand me? No, whatever you want.
Defendant's mother responded, "We'll do it. Just like that. We'll do everything like that, okay? Okay. Yes, the ...