Opinion
DOCKET NO. A-0951-12T3
04-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. A.W.S., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 10-05-0275. Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief). PER CURIAM
The issue before us is whether defendant A.W.S.'s audio recorded statement should have been suppressed because it was taken after the police refused to honor his invocation of his right to counsel. We affirm the Law Division's determination that defendant did not invoke his right to counsel before speaking and the statement was admissible.
We discern the following facts and procedural history from the record on appeal. Defendant was charged with first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1)(Counts One and Three); second degree sexual assault, N.J.S.A. 2C:14-2(b); and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(Count Four). Following a trial by jury, defendant was acquitted of the aggravated sexual assault charges, but found guilty of second-degree sexual assault and second-degree endangering the welfare of a child. Defendant was sentenced to a five-year prison term with eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for second-degree sexual assault, and a concurrent five-year prison term, subject to NERA, for second-degree endangering the welfare of a child. The victim was the eight-year old daughter of defendant's wife.
Prior to trial, defendant filed a motion to suppress an audio recorded statement he gave to the New Jersey State Police Trooper Adam Capoferri and Detective Mark Devine. At the time the statement was given, defendant lived in Pennsylvania. Capoferri contacted defendant by telephone, and advised defendant that he needed to speak to him concerning a sexual assault investigation he was conducting. Defendant, accompanied by his wife, drove approximately one hour and forty-five minutes to the State Police barracks to be interviewed. Defendant's wife told him that the investigation involved her daughter's allegations.
The only witness at the suppression hearing, Capoferri, testified that before defendant gave a statement, defendant was read his Miranda rights, which included his right to counsel, and defendant signed a card acknowledging he was read his rights and he understood them. When defendant mentioned that on his way to the barracks he had difficulty obtaining an attorney and could not afford one, Capoferri and Devine again asked defendant if he understood he had the right to counsel before speaking to them. Capoferri testified:
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Prosecutor: After reading these warnings and [defendant] acknowledging that he would speak to you, what happened next?
Capoferri: After reading [defendant] the Miranda Warning, he asked me — he brought up that he had been on his ride down there he had reached out to several people about advice as to whether or not he should get an attorney, something — not verbatim, but that was the general issue that he mentioned.
Prosecutor: In fact, did he state to you that he'd been running around — excuse me. Did he state to you that people were giving him the runaround telling him that he had to be guilty, to get a Public Defender and that he couldn't afford an attorney?
Capoferri: He followed up with that, correct.
Prosecutor: Is it at that point that Detective Devine — who was with you at the time, right?
Capoferri: Yes ma'am.
Prosecutor: Was it at that time that he reiterated the question of whether or not [defendant] understood what his rights were?
Capoferri: Yes.
Prosecutor: And, in fact, did [defendant] at that time say, "Yes, I understand my rights"?
Capoferri: Yes, he did.
Prosecutor: Detective Devine, did he continue at that point and state that, "If you can't afford and attorney, the Court will put one to you"?
Capoferri: Correct.
Prosecutor: And in continuing with your questions [defendant], did he appear to understand this and did he state he understood his rights and wished to talk to you?
Capoferri: He did. A couple times he actually — I was trying to explain, make sure that he understood. And he actually interrupted on a couple occasions saying, "Yes, I do understand my rights."
Prosecutor: Okay. And from that point on, can you describe the tone of the interview with [defendant?]Capoferri further stated defendant never mentioned his need for an attorney again, and gave a rambling, conversational three hour statement during which he admitted touching the victim's vagina.
Capoferri: It was very laid back. And [defendant] actually, as you said earlier, actually led the conversation from the onset of the interview for a better portion of the first half of the interview. He spoke freely about different life experiences and different issues that he had in the past.
During oral argument that followed the testimony, defense counsel requested that the judge listen to the audio recording of defendant's statement. However, because the recording was not presented for identification nor moved into evidence by either party, the judge refused. In turn, defendant argued that the State did not satisfy its burden of proving defendant knowingly and voluntarily waived his right to counsel. The judge found Capoferri's testimony credible, and that defendant understood his rights and never requested an attorney before voluntarily making his statement. The judge conclude that defendant did not invoke his right to counsel and denied defendant's motion.
On appeal, defendant raises the following single point:
POINT I
BECAUSE THE POLICE DID NOT HONOR DEFENDANT'S INVOCATION OF HIS RIGHT TO COUNSEL, HIS SUBSEQUENT STATEMENTS WERE INADMISSIBLE. U.S. CONST. AMENDS. V,VI,XIV; N.J. CONST. (1947) ART. I, PARS. 1,9,10.
II.
It is well recognized that "[a]ppellate courts reviewing a grant or denial of a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). We must give deference to the motion judge's findings that are substantially influenced by his opportunity to hear and see the witnesses and to have the sense of the case that we necessarily lack. Elders, supra, 192 N.J. at 244; State v. Johnson, 42 N.J. 146, 161 (1964). It is only the judge's legal conclusions that we review de novo. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Deference is given to credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). The findings below should not be disturbed merely because our court may have reached a different conclusion. Elders, supra, 192 N.J. at 244.
In reviewing denial of a motion to suppress for violation of Miranda, we analyze police-obtained confessions using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.), certif. denied, (2003) (citations and internal quotation marks omitted). When a defendant challenges a statement made during a police interrogation, the State must prove beyond a reasonable doubt that the waiver of the defendant's Miranda rights "was knowing, intelligent, and voluntary in light of all the circumstances." State v. Presha, 163 N.J. 304, 313 (2000). If an individual "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07. To determine whether a suspect has invoked his or her right to counsel, the court employs "a totality of the circumstances approach that focuses on the reasonable interpretation of defendant's words and behaviors." State v. Diaz-Bridges, 208 N.J. 544, 564 (2012).
Should a suspect's "words amount to even an ambiguous request for counsel, the questioning must cease, although clarification is permitted; if the statements are so ambiguous that they cannot be understood to be the assertion of a right, clarification is not only permitted but needed." State v. Alston, 204 N.J. 614, 624 (2011). However, "[w]hen a suspect's words are ambiguous, . . . police [may] follow up by asking questions that are designed to clarify the meaning of those words." Id. at 623 (citations omitted). In responding to an ambiguous statement, the officer must limit himself or herself to clarification, "not questions that operate to[] delay, confuse, or burden the suspect in his assertion of his rights." State v. Johnson, 120 N.J. 263, 283 (1990) (internal citation and quotation marks omitted).
Moreover, under the totality of the circumstances approach, a defendant's mere mention of an attorney is not an invocation of the right to counsel requiring the cessation of police interrogation. In Alston, our Supreme Court held that the defendant's statement, "should I not have a lawyer?", was not an assertion of his right to counsel, but rather a request for advice from the investigating officer. Alston, supra, 204 N.J. at 626. When asked if he wanted a lawyer, the defendant replied "no" while continuing to pose hypotheticals concerning the mechanics of obtaining counsel. Ibid. The Court determined that the defendant had a clear understanding of his right to counsel, that the defendant's requests and queries were not assertions of that right, and that the officer's responses adequately clarified the defendant's requests. Id. at 628.
Similarly, in State v. Cardona, 268 N.J. Super. 38, 43 (App. Div. 1983), certif. denied, 135 N.J. 300 (1994), we held that a defendant's response that he could not afford an attorney when asked if he wanted to contact his attorney did not constitute an invocation of the right to counsel.
On the other hand, the Court concluded a defendant's statement that he would not "sign any more deeds [or waivers] without a lawyer present" was an invocation of the right to counsel. State v. Wright, 97 N.J. 113, 119 (1984). Likewise, we found a clear request for counsel prevented further questioning where the defendant indicated he would give a statement if approved by his attorney. State v. Dickens, 192 N.J. Super. 290, 297-98 (App. Div. 1983), cert. denied, 97 N.J. 697 (1984).
Defendant contends that his comments regarding efforts to obtain an attorney were at least an ambiguous request for counsel. Following his comments, defendant argues that the police should have asked him directly if he wanted to speak to an attorney before being questioned. Instead of clarifying his position, defendant asserts that similar to the situation in Alston the police sought to confuse or burden avowal of his right to counsel. The admission of his statement prejudiced him at trial given his denial of intentional sexual contact and the State's summation that the statement established his means were to commit sexual assault. We are not persuaded.
In this case, sufficient credible evidence in the record supports the trial judge's denial of defendant's motion to suppress. After unequivocally stating that he understood his right not to speak to the police and his right to consult with an attorney, defendant made a factual comment that he was looking for an attorney but could not afford one. In reply, the police reiterated to defendant his right to an attorney and that the Court would appoint him an attorney if he could not afford one. This was entirely proper and intended to clarify defendant's intent to proceed without an attorney. To which, defendant clearly stated he would, and spoke freely for about three hours without any mention of wanting an attorney.
Defendant's reliance on Alston to suppress his statement is misplaced. There is no showing in the record that Capoferri and Devine tried to confuse or burden defendant's avowal of his right to counsel. There are no magic words which law enforcement must articulate when clarifying a suspect's willingness to talk after ambiguously indicating he may want an attorney before speaking. We conclude that the police made sure that defendant understood his right to seek the advice of an attorney, and defendant freely chose to speak throughout a three hour interview without again mentioning his need for counsel. Further, defendant's indication that he was looking into seeking an attorney before being questioned regarding sexual assault allegations, supports the conclusion that he was aware of his right to an attorney. The fact that he felt he could not afford an attorney does not equate to invocation of his right to counsel. Cardona, supra, 268 N.J. Super. at 43.
We therefore agree with the motion judge that defendant waived his rights knowingly, intelligently, and voluntarily. Defendant has presented no reason why the judge's finding that Capoferri's testimony was credible should be disturbed.
We also must point out that although neither party moved the audio recorded statement into evidence, defendant has provided us with a transcript of the statement without objection from the State. Our review of the transcript, however, does not support defendant's position that he invoked his right to counsel before giving his statement. To the contrary, the transcript demonstrates that defendant understood his right not to speak without counsel, but choose to voluntarily waive his right and provide a statement.
Defendant does not raise on appeal that the judge's decision not to listen to the recorded statement requires reversal. Thus, we need not address this issue.
Compare State v. Wilson, 178 N.J. 7, 14 (2003) (citation omitted) which held that "as a general rule, the State on appeal cannot rely on factual testimony or other proof that was not submitted as part of the lower court's record."
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Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION