Opinion
C-777 September Term 2019 084027
07-01-2020
STATE of New Jersey, Plaintiff-Respondent, v. Leonard K. JOHNSON, a/k/a Leonard K. Flagg, Keith L. Flagg, Keith Johnson, Leonard Johnson, and Marcus W. Flagg, Defendant-Petitioner.
ORDER
A petition for certification of the judgment in A-002312-17 having been submitted to this Court, and the Court having considered the same;
It is ORDERED that the petition for certification is denied.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this Order. JUSTICES LaVECCHIA and ALBIN voted to grant certification. JUSTICE ALBIN filed a dissent.
JUSTICE ALBIN dissents from the Order. The primary issue raised in this appeal is whether the law enforcement officers interrogating defendant Leonard Johnson ignored his invocation of his right to remain silent, thereby violating Johnson's Fifth Amendment and state-law rights against self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 439, 444-45 (1966) ; State v. Bey, 112 N.J. 45, 62 (1988). The issue raises concerns about whether the police are adhering to well-established constitutional protocols in conducting interrogations, and therefore the issue is of general public importance worthy of this Court's review. See R. 2:12-4. Certification of this case is also warranted in the "interest of justice." See ibid.
Johnson appeals from his robbery conviction. He challenges the admission at trial of an incriminating statement made to law enforcement officers during an approximately four-hour custodial interrogation. At the Miranda hearing, the video-recorded interrogation was played for the trial court.
At the beginning of the interrogation, the detectives read Johnson his Miranda rights. After approximately thirty minutes of questioning, one of the detectives inquired whether Johnson would be truthful. Johnson responded, "I don't have anything to say about it. ... [I]f we've got to go to court that's what." Pressed again about his willingness to be truthful, Johnson replied, "[Y]ou ask a question. I don't have anything to say. You all want to ask a question. I'll answer the question."
From this colloquy, the trial court came to the following conclusion: "This is not an invocation and even it if was an ... ambiguous invocation, ... Mr. Johnson himself clarified ... that he was not declining to answer questions. He was simply wanting them to stop inferring that he [was] lying if he denie[d] it." In an unpublished decision, the Appellate Division agreed, stating, "According the trial judge appropriate deference, defendant's statements were not an assertion of his right to remain silent."
The trial court and Appellate Division, however, failed to consider Johnson's seemingly unambiguous assertion of his right to remain silent later in the interrogation. Significantly, Johnson's appellate and trial counsel apparently never brought that part of the interrogation to the courts ’ attention. But courts have an independent obligation to recognize plain error when the interests of justice require. See R. 2:10-2 ("[An] appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court."); State v. Williams, 93 N.J. 39, 62 (1983) (noting that courts have an "independent obligation ... to take all appropriate measures to ensure the fair and proper administration of a criminal trial"). For that reason, I will detail the critical part of the colloquy overlooked by counsel and the courts that raises a substantial question under our jurisprudence.
At approximately the fifty-minute mark in the interrogation, Detective Burke gave the following soliloquy that was intended to give Johnson the opportunity and inducement to confess. Here is what Burke said:
[C]an you tell me, you know, basically what your concerns are? And the first thing that comes out of your mouth is, I want to know that my one[-]year[-]old's okay. That's huge. That's huge and that's huge to me because I've got kids.
And that shows me that you have remorse for what you did. Can I ask you that? Do you have remorse what you did? Do you feel bad for what you did, as far as just doing that thing? Because I can tell you do.
And you know what? You ain't got to be a proud man to sit there with a tear in your eye because of your kid. You ain't got to be too proud for that because I tell you what, I've cried over my kids many days and I'm sure you've done it before and this is hard.
It's a hard pill to swallow but I just want you to help yourself because you have a good record. You have a good record. You ... can prove that you have done everything right your entire life until things fell apart for you, and that's where we want you to explain to us.
And for me, you've already done it because the tears in your eyes and you getting choked up, that does it for me, but you need to explain to the jurors, the citizens that you're not a bad person and that's why I'm asking you.
Do me a favor, Leonard. Just the easiest thing to do when you walk through something like this, is just telling me this is how I rolled up. You know, I rolled up there, I rode up on the bike, and just explain to me. That's all.
If you want to take a few seconds to gather your thoughts, we'll sit here. We'll sit back, we won't say a word.
Here is how Johnson answered:
I have nothing to say.
Despite that seemingly clear invocation of his right against self-incrimination, the interrogation proceeded apace, with Detective Burke saying:
Can you explain to me, did you do it for your kid?
This exchange suggests that the detectives simply ignored Johnson when he invoked his right to remain silent by uttering words that this Court has said must be honored by the police. See State v. S.S., 229 N.J. 360, 382-86 (2017) (holding that a suspect who said "that's all I got to say" presumptively invoked the right); State v. Johnson, 120 N.J. 263, 281 (1990) ("[A] suspect who has ‘nothing else to say,’ ... has asserted the right to remain silent ...." (citations omitted) (quoting Christopher v. Florida, 824 F.2d 836, 842 (11th Cir. 1987) )); Bey, 112 N.J. at 64 (finding that the defendant invoked his right to remain silent when he stated, in effect, that "he would have nothing to say"). Not for approximately another hour did Johnson begin to incriminate himself. Even though not raised by counsel, this Court should determine whether Johnson's Miranda rights were "scrupulously honored" by the interrogating officers. See S.S., 229 N.J. at 384 (quoting Johnson, 120 N.J. at 282 ). We have the authority under the plain-error doctrine to undertake that review, and I believe it is a mistake not to do so. See R. 2:10-2.
For those reasons, I respectfully dissent.
Although the majority has voted not to grant Johnson's petition for certification, he is not without a remedy. In a post-conviction-relief petition, he can still seek relief on the claim that his counsel rendered ineffective assistance of counsel by not bringing to the courts’ attention Johnson's later attempt to invoke his right to remain silent in words a layperson — not a constitutional scholar — would use. See FL 3:22-1', -2; S.S., 229 N.J. at 383 ; State v. Dixon, 125 N.J. 223, 261-62 (1991).