STATE OF NEW JERSEY v. GERARDO GOMEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0313-09T40313-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

GERARDO GOMEZ,

Defendant-Appellant.

__________________________________

 

Argued: February 3, 2010 - Decided:

Before Judges Cuff, Payne and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2688.

Michael A. Robbins argued the cause for appellant.

Debra G. Simms, Special Deputy Attorney General, Assistant Prosecutor, argued the cause for respondent (Robert D. Laurino, Acting Essex County Prosecutor, attorney; Ms. Simms, of counsel and on the brief).

PER CURIAM

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 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).

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 truth, we don't have anything --."

After this exchange, Arroyo asked defendant's mother if anyone had forced her to agree to an interview. She responded, "No," and proceeded to initial the paragraphs on the Spanish language Miranda form as indicated by Arroyo.

Next, Detective Lydell James administered the Miranda warnings to defendant in English. James, unlike Arroyo, read the various rights and warnings to defendant, and concluded by stating that his mother had agreed defendant would give a statement. James stated: "You willing to give a statement to us at this time that your mother already agreed to?" In response to the question, defendant shook his head signifying "No," and verbally responded, "No." James asked, "You don't want to give us a statement?" Defendant replied, "I really don't know what it meant." James then stated:

What it meant was, we're trying to protect your rights, we're trying to protect the rights that you have, your mother fully understood. We want you to tell us basically what happened that night so we're giving you your rights and that you don't have to tell us if you don't want to. That's your right you can have a lawyer present before you do that, it's totally up to you.

The motion judge found that defendant's mother understood the Miranda warning and defendant knowingly and voluntarily waived his right to remain silent. The judge implicitly found that defendant's negative response was equivocal and "[t]he exchange between defendant and the police officer demonstrates . . . that the detective merely sought clarification from defendant on defendant's desire[s] which were ambiguous." Therefore, defendant never invoked his right to remain silent.

The judge further determined that defendant's mother's inquiry about the right to counsel was not ambiguous and "was simply for clarification and in no way triggered a request by her for counsel." The videotape demonstrates she was "poised, in control and reconciling the errors on the Miranda form, as well as the general answers of Sgt. Arroyo as to her understanding of the rights warning." Finally, the judge held that defendant's mother was able to assist meaningfully her son during his interrogation despite her lack of proficiency in English because she understood Sgt. Arroyo's translations as evidenced by her "mannerism[s], questions she asked and acknowledgement of the answers."

On appeal, defendant raises the following arguments:

POINT I

The State failed to scrupulously honor Mr. Gomez' unequivocal invocation of his Miranda rights and his statement must be suppressed.

POINT II

The state's failure to properly advise and clarify to the defendant and his mother issues relating to the right to counsel undermines the very foundation of Mr. Gomez' rights pursuant to Miranda.

POINT III

Mr. Gomez' statement was taken in violation of his rights against self-incrimination, and the specific additional level of scrutiny afforded to a juvenile, thus requiring suppression of his statement.

The threshold issue in this appeal is whether defendant's mother understood the Miranda rights to enable her to advise her son. Defendant is a juvenile, and he could not be questioned without the presence of a parent. While defendant elected to proceed in English, his mother decided to proceed in Spanish.

A defendant's statement that stems from a custodial interrogation, whether inculpatory or exculpatory, may not be used unless the State demonstrates that appropriate procedural safeguards were implemented to protect the privilege against self-incrimination. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. Those safeguards must be in the form of the following warnings, which must be conveyed to a defendant in clear and unequivocal terms prior to the commencement of the interrogation: (1) the defendant has the right to remain silent; (2) anything said can and will be used against the defendant in court; (3) the defendant has the right to have counsel present at the interrogation; and (4) if the defendant is unable to afford an attorney, he will be provided with one. Id. at 467-73, 86 S. Ct. at 1624-27, 16 L. Ed. 2d at 720-23. A defendant may certainly waive his right against self-incrimination, if the waiver is made "voluntarily, knowingly and intelligently." Id. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707. If that occurs, the prosecution bears the burden of proving beyond a reasonable doubt that such waiver was "'knowing, intelligent, and voluntary in light of all the circumstances.'" State v. A.G.D., 178 N.J. 56, 67 (2003) (quoting State v. Presha, 163 N.J. 304, 313 (2000)).

When an appellate court reviews a trial judge's decision on a motion to suppress, it should uphold the factual findings underlying the decision as long as they are supported by "'sufficient credible evidence in the record.'" State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). An appellate court should give deference to a motion judge's fact finding because of the judge's opportunity to hear and see the witnesses and get a "feel" for the case. Elders, supra, 192 N.J. at 244. Those findings should only be disturbed if "they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "In those circumstances solely should an appellate court 'appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).

Determining whether the waiver is the product of free will or free of police coercion requires consideration of the totality of the circumstances surrounding the interrogation, including the age, education, intelligence of the person subject to the interrogation; the advice of constitutional rights; the length of detention; the length of questioning; and any previous encounters the person has had with the criminal justice system. State v. Miller, 76 N.J. 392, 402 (1978). These factors are relevant to statements obtained by police from adults and juveniles. Presha, supra, 163 N.J. at 313.

In Presha, the Court emphasized that "[t]he role of a parent in the context of a juvenile interrogation takes on special significance." Id. at 314. The parent assumes the role of an advisor. Ibid. Thus, it is imperative not only that a parent be present when a child is subject to police interrogation but also that the adult is fully informed of the child's rights under the Constitution to remain silent and to seek the advice of counsel. Id. at 314-15. At the outset, therefore, we must determine whether the totality of the circumstances demonstrates that defendant's mother understood her son's constitutional rights and was capable of serving as a fully informed advisor to her son.

Recently, in State in the Interest of A.S., ___ N.J. ___, ___ (2010) (slip op. at 21), the Court emphasized that mere presence of the parent is not enough to protect a child's rights. Rather, in order to serve as the buffer contemplated in Presha, the parent must be acting with the best interests of the child, not the parent's or another family member's, in mind. Id. at ___ (slip op at 21-22). In order to serve as a buffer and assist the juvenile in understanding his rights, the parent must also be fully informed about her child's constitutional rights. Id. at ___ (slip op. at 24-25).

All communications between Sgt. Arroyo and defendant's mother proceeded in Spanish at her specific request. He utilized a Spanish language Miranda card riddled with eighteen typographical errors and asked her to read aloud from the card. She stumbled over some words but finished reading the card. There is nothing in this record to suggest, however, that the method employed by Arroyo failed to inform defendant's mother of his rights.

The critical exchange between Arroyo and defendant's mother occurred immediately after she finished reading the card. Defendant's mother asked Arroyo, "What is not clear to me is that at any moment we cannot have a lawyer or anything, true?" In response, Arroyo stated:

No, if you want . . . if you, . . . you read your rights, before . . . what happened . . . he needs to sign the form, you understand? These are your rights, OK? No . . . I am not saying . . . a lawyer . . . if he wants to tell me what happened, he needs to sign the form, you understand me, it is not whatever you want.

The motion judge found that defendant's mother simply asked for clarification. We must accept that finding, if the finding is supported by the evidence, and we so find. That is not, however, the end of our analysis. We must be assured that the totality of the circumstances supports a finding that the response to defendant's mother's inquiry provided sufficient information to allow her to provide knowledgeable advice to her son. The record does not provide the basis to reach that conclusion.

The response to defendant's mother's reasonable inquiry about her son's right to counsel deflects the question, and instead turns the discussion to the desirability of her son providing a statement to police. Indeed, at the Miranda hearing Arroyo conceded that his primary focus in his interaction with defendant's mother was to obtain a statement from her son. The following exchange occurred between defendant's attorney and Arroyo:

[DEFENSE COUNSEL] It was your aim, as a member of law enforcement, to get him on paper and find out what happened. That's what you wanted to happen. Correct?

[ARROYO] Yes.

Under the totality of the circumstances, this record does not allow a trier-of-fact to find that the State carried its formidable burden to ensure defendant's mother was fully informed of her son's Miranda rights. Just as the officer's explanation to A.S. of the role of an attorney was woefully inadequate, A.S., supra, ___ N.J. at ___ (slip op. at 24-26), so too was the response to defendant's mother's question about her son's right to consult an attorney. The officer clearly evaded a direct response and deflected the question to a general statement of the interest of the police in protecting his rights. Just as in A.S., it was an "empty gesture." Id. at ___ (slip op. at 25). Without a direct answer to her inquiry about her son's right to consult an attorney, defendant's mother could not perform her important role as an advisor during this critical interrogation.

Equally troubling is the administration of defendant's Miranda rights. Detective James read the Miranda rights to defendant, concluding with the phrase "your mother already agreed to." Then, when defendant indicated that he did not want to give a statement by shaking his head and stating, "No," his negative response was followed immediately with a question. When defendant stated that he did not "know what it meant," he was not given an explanation of his rights, but rather told that the police were merely trying to protect his rights. In other words, just as occurred during the exchange between his mother and Sgt. Arroyo, Det. James sought to divert the focus of the interview.

Defendant argues that, when he plainly and simply stated "No" when asked if he wanted to give a statement, he invoked his right to remain silent, and the police were required to cease any and all questioning. The State responds that there is no indication in the record that defendant ever invoked his right to remain silent. The motion judge found that the follow-up question by Det. James was to clarify defendant's desire to give a statement because his response was ambiguous. He further found that defendant's confusion was grounded in his fear that his statement would be disseminated due to the presence of the video camera. Ultimately, the motion judge held that the totality of the circumstances demonstrated that "there was no attempt, subtle or otherwise, to violate the rights of defendant or his mother," and the clarifying question "should not be read as an attempt by the police to delay, confuse or burden defendant in his assertion of his rights."

In accordance with a defendant's Miranda rights, if, at any point during the interrogation, a defendant expresses that he wishes to remain silent, all questioning must cease, and the defendant's right must be "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975) (quoting Miranda, supra, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726); State v. Chew, 150 N.J. 30, 60 (1997). Whether the police honored a defendant's right to remain silent is a wholly separate inquiry from whether a defendant knowingly, intelligently, and voluntarily waived his Miranda rights. State v. Hartley, 103 N.J. 252, 261 (1986). The Court in Hartley, found that "failure scrupulously to honor a previously-invoked right to silence renders unconstitutionally compelled any resultant incriminating statement made in response to custodial interrogation, [therefore,] there can be no question of waiver." Ibid. The Court established a bright-line rule that, in order to honor a defendant's right to remain silent, once invoked, a defendant must be furnished with "fresh Miranda warnings" before any interrogation is resumed. Id. at 267.

An undisputable invocation of defendant's right to remain silent is not necessary; "a request to terminate an interrogation must be honored 'however ambiguous.'" State v. Bey, 112 N.J. 45, 64 (1988) (quoting State v. Kennedy, 97 N.J. 278, 288 (1984)). If the police, however, are unsure as to whether a suspect asserted his right to remain silent, they may ask questions to clarify whether he, in fact, invoked the right. State v. Johnson, 120 N.J. 263, 283 (1990); Christopher v. Florida, 824 F.2d 836, 842 (11th Cir. 1987), cert. denied, 484 U.S. 1077, 108 S. Ct. 1057, 98 L. Ed. 2d 1019 (1988). "The rule permits only clarification, not questions that 'operate to, delay, confuse, or burden the suspect in his assertion of his rights.'" Johnson, supra, 120 N.J. at 283 (quoting Christopher, supra, 824 F.2d at 842).

Here, when Det. James asked defendant if he wanted to give a statement, defendant shook his head in the universal manner signifying "No" and simultaneously stated "No." There is nothing equivocal or ambiguous about "No." There was nothing to clarify.

Moreover, the judge's reliance on any discussion between defendant and his mother and among the police, defendant, and his mother after he stated he did not want to give a statement, should not inform the evaluation of the totality of circumstances in the face of an unambiguous and unequivocal declaration that defendant did not want to give a statement. To do so would eviscerate the Hartley rule.

The July 27, 2009 order denying defendant's motion to suppress is, therefore, reversed.

 
Reversed.

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

Defendants are being tried separately. Co-defendant Rodolfo Godinez was charged with the same offenses as defendant. A jury convicted Godinez of all seventeen counts on May 24, 2010. On July 8, 2010, he was sentenced to three consecutive life sentences on the murder convictions, plus a consecutive twenty-year term of imprisonment on the attempted murder conviction.

S-3, the video recording of the interrogation, including the administration of the Miranda rights, is the official record of the interrogation. This recording, however, is unintelligible in part for anyone who does not understand Spanish. The motion judge freely admitted he did not understand Spanish; neither do the members of this panel.

An accurate transcription of the video is critical and considerable efforts were made by the motion judge to obtain an accurate transcription. On the second day of the Miranda hearing, the motion judge suggested and both parties agreed to move into evidence, the translations obtained by both parties of the critical first twelve minutes when the Miranda rights were explained to defendant's mother and then administered to defendant. This panel, like the motion judge, has reviewed and considered both translations, as well as the transcript of the entire video recording. The latter document, of course, is an aid to our review. The official version of the interrogation is the video recording.

As a result of our concerns about the accuracy of the transcription, we requested a review of the video recording by an interpreter retained by this court. Interestingly, the two page errata sheet provided to this court does not note the mistake identified by Sgt. Arroyo, who testified that the phrase, "Si tu quieres," should have been translated not as "If you want," but as "No, if you want." Significantly, this discrepancy occurs during administration of the Miranda warnings and in response to the following question from defendant's mother, "What is not clear to me is that at any moment we cannot have a lawyer or anything, true?" We have amended the "If" to "No" based on Arroyo's testimony on the first day of the suppression hearing. We raise these concerns because an accurate transcription and translation is critical to the trial judge's ability to rule on the motion to suppress and our ability to perform our appellate function.

(continued)

(continued)

3

A-0313-09T4

August 30, 2010