STATE OF NEW JERSEY v. ANTHONY JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4550-07T44550-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ANTHONY JONES,

Defendant-Respondent.

___________________________________________________________

 

Submitted November 13, 2008 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-07-1108.

Robert D. Bernardi, Burlington County Prosecutor, attorney for appellant (Kendall J. Champion, Assistant Prosecutor, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for respondent (Kevin Walker, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Pursuant to our leave granted, the State of New Jersey appeals from the April 9, 2008 order granting defendant Anthony L. Jones' motion to suppress statements he made to police during custodial interrogation. We have considered the arguments raised in light of the record and applicable legal standards. We affirm.

I.

Defendant was indicted for the January 17, 2006 fatal stabbing of Thomas J. Carmichael in the parking lot of the Sunset Tavern in Burlington Township. Carmichael was taken to Cooper Medical Center from the scene and died from his injuries two days later. Prior to his demise, he gave a description of his attacker. During their initial investigation, police obtained a surveillance video from the scene and spoke to several witnesses who identified defendant as the perpetrator.

At 4:15 p.m. on January 18, police obtained a search warrant for defendant's room at the HallMark Motel on Route 130 in Cinnaminson. Officers set up a perimeter around the motel and ordered defendant out of the room without success. A SWAT team was called to the scene and, using tear gas grenades and a battering ram, ultimately entered the motel room. Once inside, the team detonated concussive devices known as "flash bangs" and took defendant into custody at approximately 8:00 p.m. He was transported to the Burlington County Prosecutor's Office for questioning.

Detectives Frank Troso and David Britzinghoffer brought defendant to an interrogation room equipped with videotape monitoring. Troso testified during the suppression hearing that prior to the start of the videotape, defendant asked about the nature of the investigation. During the first several minutes of the interview, defendant, who was obviously agitated, asked numerous times why he was arrested without receiving an answer from the detectives. He also requested "to make a phone call." Troso tried to read defendant his Miranda rights from a card but, before he could complete the reading, defendant requested counsel stating, "I need my lawyer, that's all." Troso stopped the proceedings and responded "Okay, now, I can't answer you." Troso and Britzinghoffer left but returned shortly thereafter. After asking defendant if he knew who he was, Britzinghoffer told defendant he was being charged with attempted murder, but stated they could not talk to him since he had asked for an attorney. Troso testified:

Q. . . . [T]he conversation is reinitiated by Britzinghoffer; is that correct?

A. He introduces himself again, yes.

Q. Well, he walks into the room. Not in response to any request from [defendant], correct?

A. Right.

Q. The first words spoken are a question posed to [defendant]; is that correct?

A. Yeah.

Q. And in the meantime, neither you nor anybody on your staff has made any effort to secure a lawyer for Jones?

A. No.

The transcript of the interview reveals that after being told about the charges, defendant said, "Yo, can I talk to you?" Troso responded:

Troso: What about, you want to talk with me?

Defendant: I don't know, I don't know what the f... this (is) about.

Troso: Well, I'll be more than happy to talk to you. Is that what you . . . would like to do?

Defendant: Yeah, yeah.

Troso then read defendant his Miranda rights and requested he sign the card which defendant did.

Defendant and the detectives then exchanged preliminary information and the following conversation ensued:

Troso: [L]et me finish real quick, all right, well, that's what I'm saying there's always two sides but before we started talking, when we first came in here, when we tried to talk to you, tried to read you your Miranda Rights, you said. . .

Defendant: No.

Troso: [Y]ou said, no, no, no, I want to talk to a lawyer, correct?

Defendant: Right, exactly.

Troso: The thing is we came in and read you the charges you had questions regarding your charges, correct?

Defendant: Yeah, you talking about [a]ttempted [m]urder.

Troso: Right, right, so then you said, what did you say you said I'll talk to you, meaning me?

Defendant: I said I'm a talk to you.

Troso: Okay, so that's what I'm saying you're okay right now talking to us without a lawyer with you?

Defendant never answered the officer's question, instead asking, "Am I on [] video or something?"

During the ensuing conversation with Troso, defendant became upset and repeatedly tried to end the interrogation.

Troso: A[nthony] [the victim is] in the hospital (inaudible).

Defendant: That's the end of it, that's the end it, that's the end it, that's the end of it man.

Troso: He's got a puncture wound to his lung and through his heart.

Defedant: That's the end of it.

Troso: That's what?

Defendant: It wasn't me, it wasn't me, this what happened.

Troso: Okay and I said there was a fight but what I want to find out is what happened, what did you have in your hand and what did he push you to do, how did he push you to do this?

Defendant: I had a fucking yellow bag.

Troso: Yeah, I know.

Defendant: A bottle of Natural Ice and a bottle of, ah, fucking ah, vodka that was it, that's what happened.

Troso: Okay, when you were slugging with him the bag was sitting behind you I can see that but apparently you had something in your hand.

Defendant: I didn't have nothing in my hand, nothin' but my fist.

Troso: Okay, well, your fist can't puncture somebody's lung and heart.

Defendant: Yo, yo, that's the end of it, man, that's the end of it, that's the end of it, that's why you charging me [a]ttempted [m]urder?

Troso: Well, yeah.

Defendant: All right, that's the end.

Troso: All right.

Defendant: That's the end of it, yeah, take me where you got to take me . . . .

Troso: All right.

Defendant: That's the end of that shit.

With regard to this part of the conversation, Troso testified, "[W]e Mirandized him and he agreed to talk to us a second time. And each time, even though he said he was done, he continued to talk. He knew he could invoke his right the first time. He didn't invoke his right to an attorney the second time." Defendant also admitted that earlier that day he had smoked an eight ball of crack cocaine and drank a 12-pack of beer and a pint of vodka. After defendant again said, "[i]t's the end of the conversation" and the "conversation has ended," Troso ceased the interrogation and left defendant alone in the interrogation room.

As the officers continued to monitor defendant's actions, Detective Mike Sperry testified that he believed defendant was trying to remove the handcuff belt and he ran into the room to prevent this. In doing so, Sperry failed to activate the videotaping device, thus the initial eight to fourteen minutes of his encounter with defendant were never recorded.

In his testimony, Sperry denied any pretext in returning to the interrogation room with defendant:

Q. The action that prompted you to go into the room was the handcuff belt?

A. Coming off. Correct.

Q. So that's pretty critical, right?

A. It's the very reason I went into the room.

Q. You're now running the tape, you're in control of the interview, you're an experienced interviewer, right?

A. Correct.

Q. You have an opportunity to put on tape exactly what happened and have [defendant] verify or corroborate what you're telling us, right?

A. Absolutely.

Q. About the handcuff belt?

A. Yes.

Q. And you never did that?

A. No. I did do it. The situation is that as I am putting that on the record, [defendant] continues to speak to me and wants to continue speaking to me. If the man wants to speak to me after he had already initiated, I'm going to entertain whatever his desire is to speak to me . . . .

Q. But you never got from him affirmation about the handcuff belt?

A. Correct.

When the tape of the conversation between Sperry and defendant was activated, it began with the following exchange:

Defendant: Why, why, why do you keep coming in?

Sperry: Well, because its, I'm not allowed to talk to anybody, ah, by myself, any of us can't we're not allowed to do that, he's just gonna sit behind you and take any notes, all right?

Defendant: All right.

. . . .

Yeah, I want to talk to you.

Sperry: Okay, let me just, ah, preface it here for a second, it's approximately 9:30 [p.m.] I came in a little bit earlier cause I saw you taking your handcuff belt off and during the process of putting that back on you asked me who I was and I said my name is M[ike] S[perry], I'm a detective here at the Prosecutor's Office and you asked . . . .

. . . .

Defendant: You look familiar.

. . . .

Sperry: The other detectives read you your rights, okay?

Defendant: Yo, I'm good on that.

Sperry: Okay and you understand your rights, all right, now, what I need to make sure though that you're comfortable talking to me without an attorney after, after before you said, you know, I don't want to talk anymore.

Defendant: Listen, I'm charged with [a]ttempted [m]urder.

Sperry: That's correct.

Defendant: And it[']s bullshit.

Sperry then continued the interview.

Defendant again repeatedly made attempts to stop the interrogation, sometimes equivocally, and sometimes directly. For example, at one point defendant told Sperry, "I'll talk to you later man," then said, "Yeah, and I, and I do want to talk to you." Defendant at another point stated, "That's the end of it" and told Sperry, "Stop it, stop it." Further in the interview, defendant said, "I'm done talking, they writing too much," "stop it" several times, and "I can't . . . tell you no more." Defendant requested to make a phone call several times throughout the interview. Sperry testified that he finally stopped the interview at 10:41 p.m. at the direction of his supervisor.

We need not consider the substance of the conversation defendant had with Sperry which is not particularly relevant to the issues presented. Suffice it to say that defendant, in an extremely disjointed fashion, once again acknowledged getting into an altercation with Carmichael at the tavern, but denied ever stabbing him.

In a comprehensive written opinion, Judge John A. Almeida reviewed much of the testimony we have recited above. In considering the first portion of the interrogation between Troso and defendant, he noted defendant had "asked to make a telephone call, requested a lawyer and responded affirmatively to a subsequent inquiry about '. . . want(ing) to talk to a lawyer.'" He further found that defendant "solely because of his desire to know the nature of the criminal investigation, initially resumed the conversation with his interrogators." Noting "[t]he circumstances surrounding [defendant's] apprehension [forty] minutes before the questioning began, the conditioning of . . . the assertion of a right by refusing to advise defendant of the criminal charge, [] [defendant's] repeated requests for counsel and/or the demands to end the interrogation[,]" Judge Almeida concluded that "[t]he State ha[d] not met its burden in establishing beyond a reasonable doubt that [defendant's] statements were the result of a knowing, intelligent and voluntary waiver."

The judge then considered the second portion of the interrogation conducted by Sperry. Noting the failure to re-administer Miranda rights to defendant, and "the factual uncertainty concerning [any] dialogue [that occurred] while the recorder was shut off," the judge concluded that the State's "burden similarly has not been met with respect to the remainder of the statement." He also suppressed this portion of the interview.

II.

The State argues that although defendant initially indicated he wanted counsel and sought to terminate the interrogation, he subsequently initiated conversation with Troso and Britzinghoffer, who appropriately administered defendant his Miranda rights and conducted an interrogation. It contends that defendant waived the protections accorded by the warnings and continued speaking to the officers, though it concedes that once defendant again indicated he wanted the questioning to stop, the interrogation should have ceased. Thus, the State argues that a limited portion of defendant's conversation with Troso should have been deemed admissible.

Regarding the second portion of the interview conducted by Sperry, the State argues that since defendant initiated the conversation after having received his Miranda rights, no re-administration of those rights was necessary before further questioning occurred.

Defendant counters that he clearly expressed his desire to end the conversation and to have counsel present and his requests were not scrupulously honored. Defendant also argues that the second interview was conducted without re-administering the Miranda rights despite defendant's initial assertion of his right to remain silent and to speak to counsel.

A.

"If [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723. If the suspect asks for an attorney to be present, the interrogation must cease until he has an opportunity to confer with an attorney. Id. at 474, 86 S. Ct. at 1628, 16 L. Ed. 2d at 723; see Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 1883, 68 L. Ed. 2d 378, 384 (1981). Once a person has invoked the right to remain silent, this choice must be "scrupulously honored" by the investigators. State v. Hartley, 103 N.J. 252, 255-56 (1986).

The State seemingly does not contest that defendant initially unambiguously invoked his right to remain silent and his right to counsel before being fully advised of his Miranda rights. It contends, however, that defendant decided to "re-initiate discussions with" Troso, was thereafter properly advised of his rights, and waived them. We disagree.

As we recently noted in State v. Burno-Taylor, 400 N.J. Super. 581 (App. Div. 2008), a case whose facts bear some similarity to those presented here, once a defendant exercises his right to remain silent or the assistance of counsel, the inquiry becomes two-fold:

[D]id the State "scrupulously honor" defendant's right to remain silent and did defendant make a knowing, voluntary and intelligent waiver of that right? It is only when the first question is answered in the affirmative that it is necessary to deal with the second.

[Id. at 606.]

"[T]he failure scrupulously to honor a previously-invoked right to silence renders unconstitutionally compelled any resultant incriminating statement made in response to custodial interrogation, [and] there can be no question of waiver." Hartley, supra, 103 N.J. at 261.

We agree with Judge Almeida that the investigators did not scrupulously honor defendant's request for counsel and his invocation of his right to remain silent. The first five pages of the transcript reveal defendant's repeated attempts to discern why he was arrested, all of which were rebuffed by the investigators. As Troso's testimony at the hearing revealed, after initially refusing to answer defendant's questions, the officers decided to leave the room, return with the actual warrant charging defendant with attempted murder, and have Brintzinghoffer "take[] the lead." It was the detective who initiated a conversation with defendant by asking him if he knew who he was, and then reading defendant the charge as contained in the warrant. Once an accused asks for counsel, all questioning must cease "unless the suspect personally and specifically initiates the conversation." State v. Burris, 145 N.J. 509, 519 (1996); compare State v. Fuller, 118 N.J. 75, 83 (1990)(noting the distinction between police-initiated and defendant-initiated questioning after administration of Miranda warnings).

It seems clear to us that the strategy employed by the investigators was designed to provoke the response that actually occurred, i.e., defendant became agitated and asked what the case was about. The officers dangled the specter of defendant's prior invocation of his rights as an impediment to any further information, and recited for a second time the Miranda rights from the form card, this time securing defendant's answers and signature.

As we noted in Burno-Taylor, once the fundamental right to counsel or to remain silent is asserted, "the officers c[an] do no more than to attempt to clarify [defendant's] position, and c[an] not proceed to their extended attempts to persuade defendant to waive his Miranda rights and agree to speak to them." 400 N.J. Super. at 607. In this case, the method used by the investigators to secure defendant's signature on the Miranda rights form, and to have him continue to talk to them, exceeded what was permissible.

Even if we were to assume that the investigators' actions were permissible, the issue still remains whether defendant in fact waived his rights. "If an accused does initiate a conversation after invoking his rights, that conversation may be admissible if the initiation constitutes a knowing, intelligent, and voluntary waiver of the accused's rights." State v. Chew, 150 N.J. 30, 61 (1997). Determination of whether the State has proven such a waiver depends in each case upon the "particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." State v. Adams, 127 N.J. 438, 447-48 (1992)(quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. at 1461, 1467 (1938)). "The State bears a 'heavy burden' of demonstrating that the waiver was knowing, intelligent, and voluntary." Chew, supra, 150 N.J. at 61 (quoting Hartley, supra, 103 N.J. at 260).

The transcript of the interview reveals that the State failed to carry its burden of proof in this regard. First, the second Miranda card that defendant signed does not ask expressly whether defendant has chosen to waive his rights. Second, after defendant executed the second card, he was asked if he was "okay right now talking to [the investigators] without a lawyer[,]" and responded, "Am I on, ah, video or something?" He was never asked again whether he was waiving his previously-asserted right to remain silent or have counsel present. Third, given defendant's behavior, particularly in light of his later admission of having ingested cocaine and large amounts of alcohol, we seriously question whether he was in an appropriate state of mind to have validly waived his rights.

B.

For defendant's statement to Sperry to be admissible, the State must prove beyond a reasonable doubt that defendant re-initiated the conversation and that he "was inviting discussion of the crimes for which he was being held." Fuller, supra, 118 N.J. at 82. Only if a defendant voluntarily re-initiates dialogue with detectives is their duty to re-administer Miranda warnings relieved. State v. Harvey, 151 N.J. 117, 221-222 (1997).

Judge Almeida noted that the "factual uncertainty concerning the dialogue while the recorder was shut off[,]" in conjunction with the investigator's failure to re-administer Miranda warnings to defendant, was fatal to the statement's admissibility. We accord substantial deference to the trial judge's evidentiary findings, State v. Morton, 155 N.J. 383, 453 (1998), requiring only that those factual findings be supported "by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 244 (2007)(quoting State v. Johnson, 42 N.J. 146, 164 (1964)).

Implicit in the judge's statement is his determination that the State failed to prove beyond a reasonable doubt, Burris, supra, 145 N.J. at 534, that defendant in fact re-initiated the conversation about the subject matter of the crimes for which he was being held, thus relieving Sperry of the obligation to re-administer the warnings. We note the judge reached this conclusion having fully considered Sperry's testimony regarding the circumstances for his re-entry into the interrogation room, and what occurred immediately after he did so.

Moreover, the transcript provides some independent support for the conclusion that defendant did not re-initiate the conversation at all. When the tape is activated, and Sperry re-enters the room to commence the interrogation, defendant's first words are, "Why, why, why do you keep coming in?" In trying to recapitulate what happened when he entered the room for purposes of the transcript, Sperry himself said that defendant "asked [him] who he was" as he adjusted the handcuff belt. When Sperry asked defendant if he was "comfortable talking to [him] without an attorney," defendant never answered, instead responding, "Listen, I'm charged with [a]ttempted [m]urder . . . [a]nd it's bullshit." In short, based upon the transcript alone, there is a lack of evidence that defendant was indeed the person who re-initiated the conversation, and more importantly, that any conversation was an invitation for further discussion of the crimes for which he was being held.

We are convinced that Judge Almeida applied the proper legal analysis to the facts as he found them, and we find no basis to reverse the suppression of defendant's statement to Sperry. Compare Burno-Taylor, supra, 400 N.J. Super. at 605 (noting deference accorded to factual findings does not apply to improper legal analysis).

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The record includes another card signed by Troso after his earlier attempt to read defendant his rights. It reflects the notation, "asked for atty."

Sperry's testimony regarding his initial contact with defendant when he re-entered the interview room was only that defendant said "he wanted to talk to me."

(continued)

(continued)

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A-4550-07T4

January 2, 2009