STATE OF NEW JERSEY v. ANYOLI R. GONZALEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0962-07T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANYOLI R. GONZALEZ,

Defendant-Appellant.

________________________________________________________________

Submitted May 9, 2011 Decided May 26, 2011

 

Before Judges Lisa, Reisner and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 03-10-0975 and 04-08-1079.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

 

CameliaM. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Anyoli R. Gonzalez, was jointly charged in a Passaic County indictment with his co-defendant, Giovianny Gonzalez (Giovianny), with various offenses, including the murder of Darren Cancel. Defendant was tried separately, prior to the anticipated trial of Giovianny. On the murder charge, defendant was convicted of the lesser-included offense of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1). Defendant was also convicted of the other two charges for which he was tried, third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. The weapons offenses were merged with each other and with the reckless manslaughter conviction, for which defendant was sentenced to nine years imprisonment, subject to an 85% parole disqualifier and three years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Prior to trial, extensive pretrial proceedings were conducted dealing with the admissibility of defendant's statements to the police. Defendant presented evidence at a Miranda1 hearing attempting to establish that he lacked the mental capacity to understand and knowingly and voluntarily waive his rights before giving the statements. The disputed statements, all given by defendant in a single session, spanning several hours, two days after the crime, can be divided into two components for purposes of our analysis. First, defendant gave an oral statement which was not recorded by audio or video means, and which was not reduced to a written form. Then, the detectives who had obtained that oral statement proceeded to commence a videotaped statement. Portions of that statement were reduced to written form and signed by defendant.

Defendant challenged the admissibility of all of the statements on the basis of his diminished intellectual capacity. He also challenged the videotaped and signed statements on the additional grounds that he had asserted his right to counsel before they were given, but the detectives nonetheless wrongfully continued interrogating him. The court denied defendant's Miranda motion, and all of his statements were admitted at trial.

Defendant raises six arguments on appeal as follows:

POINT ONE

 

THE TRIAL COURT'S ADMISSION OF MR. GONZALEZ'S INCULPATORY STATEMENTS VIOLATED HIS CONSTITUTIONAL RIGHT TO COUNSEL. U.S. Const. Amends. V, XIV; N.J. Const. Art. I, p.1.

 

POINT TWO

 

THE TRIAL COURT ERRED IN FINDING THAT MR. GONZALEZ VOLUNTARILY WAIVED HIS RIGHTS.

 

POINT THREE

 

THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE AND SENDING TO THE JURY DURING DELIBERATIONS AN INACCURATE AND INCOMPLETE RENDITION OF MR. GONZALEZ'S STATEMENT TO THE POLICE.

 

POINT FOUR

 

THE TRIAL COURT'S IMPROPER ACCOMPLICE LIABILITY CHARGE DEPRIVED MR. GONZALEZ OF DUE PROCESS. U.S. Constit. Amend. XIV; N.J. Constit. Art. I, para. 1. (Partially Raised Below).

 

POINT FIVE

 

MR. GONZALEZ WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BECAUSE THE STATE INTRODUCED A PRIOR INCONSISTENT STATEMENT OF ITS OWN WITNESS WITHOUT SATISFYING THE REQUIREMENTS OF N.J.R.E. 803(A)(1). (Not Raised Below).

 

POINT SIX

 

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

Our disposition of the appeal focuses on the first two points, which deal with defendant's statements.

Point Two deals with all of the statements. In that point, defendant argues that his diminished mental capacity deprived him of the ability to understand his Miranda rights and to knowingly and voluntarily waive them. We are satisfied from our review of the record that the judge's rejection of that argument was supported by the record. We therefore reject defendant's argument in Point Two.

Point One pertains specifically to the videotaped and written statements. Defendant contends that he asserted his right to counsel at the beginning of the videotaped statement, but, instead of honoring his request, the police continued interrogating him. He argues, therefore, that these statements were obtained in violation of his constitutional rights and were improperly admitted at trial. We agree with defendant on this point and we conclude that the error was not harmless. Therefore, we reverse defendant's conviction and remand for a new trial.

In light of this disposition, we find it unnecessary to address the arguments defendant raises in Points Three through Six.

I

The underlying incident occurred on April 25, 2004 at about 3:00 a.m. in a Checkers fast food restaurant in Paterson. Defendant and Giovianny were in line behind Cancel, Luis Martinez, and Linda Rivera. Giovianny apparently touched Rivera inappropriately. This led to an argument between Giovianny and Cancel, which escalated to a fistfight between the two.

The exact course of subsequent events was the subject of varying accounts by multiple witnesses. The State produced nine eyewitnesses at trial, who gave varying accounts of how the scuffle progressed to its completion. The witnesses included Checkers' employees, customers, Rivera, Martinez, and a uniformed security officer who saw the scuffle when he was driving by and stopped to render assistance. The various witnesses observed the events from different locations, some of which provided a better view than others. Some had a connection to the participants, and others were disinterested parties. Their accounts of defendant's participation varied from a very minor or nonexistent role to a very significant one. Some of the witnesses recanted their original statements and changed their stories at trial. Some were intoxicated on the night of the incident. Thus, the exact course of events and the precise nature of defendant's conduct were left to the ultimate factfinders, the jurors. Because of these circumstances, defendant's statements to the police, describing what happened and what he did, took on great importance in the factfinding process.

In general terms, this is what happened. Cancel appeared to be getting the better of the fight with Giovianny. Defendant intervened. He opened his folding pocket knife, which had a blade of three to four inches. He said he stabbed Cancel once in the area of his waist. Cancel and Giovianny then proceeded outside and continued the fight. Apparently someone handed Giovianny a kitchen knife with an eight-inch blade. Giovianny stabbed Cancel with the kitchen knife.

The medical examiner identified four wounds in Cancel's body. She opined that two of the wounds, to Cancel's lower right abdomen and to his right buttock and hip area, were caused by the folding knife. She opined that either knife could have caused a wound to Cancel's left armpit. However, the fatal wound, which was to Cancel's chest and which severed his aorta, was caused by the kitchen knife.

Thus, it was clear that Giovianny actually killed Cancel. The State's theory against defendant was that he was guilty of murdering Cancel as an accomplice of Giovianny.

II

The investigation led to defendant, and two nights later, on April 27, 2004, Paterson police officers, including Detective Carlos Charon, went to a residence in Paterson to speak to defendant. They found defendant there with his brother and another individual. When the police identified themselves, defendant said, "I knew sooner or later you're [sic] gonna be coming for me." The police took the three men to the stationhouse. Defendant was not placed under arrest at that time, but he was detained. The State does not dispute that he was not free to leave and was in custody.

The police did not speak with defendant before they arrived at the stationhouse. They then began the interview at 8:24 p.m., when Charon advised defendant of his Miranda rights. Defendant was then twenty-three years old. He is a native of the Dominican Republic. Spanish is his first language. Defendant could speak and understand English to a reasonable degree, but he could not read English. Overall, he was more comfortable communicating in Spanish. Charon grew up in a Spanish-speaking household and was fluent in Spanish, in the same dialect used by defendant.

For these reasons Charon administered the Miranda rights to defendant in Spanish and utilized a Spanish-language Miranda form. Defendant acknowledged his understanding of each right and initialed the form accordingly. He also waived his rights, and signed the form to signify his waiver. Defendant does not contend that he asserted his right to counsel (or any other of his Miranda rights) during this phase of his interaction with the police.

In the presence of Charon and Detective Florence Ackerman, who was the lead investigator in the case, defendant proceeded to give an oral statement. The statement was not recorded by any means, and was not reduced to written form. However, Ackerman compiled a summary of defendant's oral statement, through Charon's translation, in her report. Charon testified that the summary in Ackerman's report accurately reflected what defendant said. Charon read the summary at the Miranda hearing and at trial. Charon also testified that any contemporaneous notes taken by him or Ackerman at the time of the statement were destroyed once the report was prepared.

In relevant part, the summary of defendant's oral statement reflected that this is what happened after he arrived at Checkers:

While he waited for his order Giovann[y] and Francis came in. Giovann[y] must have done something, he didn't see what, 'cause the girl said something to Giovann[y] and she was upset. He said the victim said something to Giovann[y] like that is my girl. So Giovann[y] said I didn't say nothing was up. [Defendant] related the big man swung at Giovann[y], that is when he took out his knife and stabbed the victim one time. Then the knife got stuck. He related the victim was fighting with Giovann[y] at the time he stabbed him and had his back to [defendant]. The victim did not have any weapons on him that [defendant] saw. The other guy, the one dressed in white, grabbed [defendant] and was like what happened?

 

By the time he got outside the victim was on the ground and Giovann[y] was running away. . . .

 

. . . .

 

Giovann[y] did not have the knife out inside of the Checkers, but took it out during the fight outside. He described Giovann[y] as wearing a black hoodie with red trim. . . . Dominican, skinny, light complexion, 145 pounds about five/six. . . .

 

He said somebody gave Giovann[y] the knife. He thinks it was Francis who gave him the knife before he went to . . . Checkers. . . . He described the knife he had in his possession as a small, silver folding knife with black in the middle of the handle and gray outer [sic]. The blade he related [was] about four and a half inches long. . . .

 

He related he was unsure what happened to the knife he used to stab the victim as he said he didn't know if it stayed stuck or if it fell. He described the knife that Giovann[y] had in his possession as long, like a cooking knife used to cut chicken, which he left by the fight. . . .

After the unrecorded interview, defendant allegedly agreed to give a videotaped statement, which began at 10:45 p.m. and ended at about 12:30 a.m. It is with respect to this statement that defendant claims he invoked his right to counsel. The procedure by which defendant's statements were recorded and described in testimony, both at the Miranda hearing and at trial, is important. Charon communicated with defendant in Spanish. Ackerman was present and was seated at a computer, on which she would type questions and answers. However, what she typed was not a verbatim transcription of questions or answers. Indeed, Charon admitted that less than twenty percent of what was said was transcribed. Like the trial judge, we have viewed the video. There were many passages in which Charon and defendant engaged in extensive colloquy in Spanish, followed by Charon reporting to Ackerman only a few words by way of summary, which she then typed. Therefore, all or most of what was transcribed was Charon's summary of what was said, including his interpretation or characterization of what was said. Charon acknowledged that he regularly left out matters that he thought were unimportant or not relevant.

The prosecutor never produced a complete transcription, translated into English, of the colloquy between Charon and defendant. The reason given was that it would have been too costly. While being cross-examined, Charon acknowledged some inaccuracies in translation that were pointed out to him. He also admitted leaving out matters which might indeed have been relevant and helpful to defendant. We provide an example for purposes of illustration.

According to the written statement, defendant described the victim's condition after he first stabbed him by saying: "[W]hen I stabbed him the knife stayed stuck. I don't know if the knife fell or stayed stuck in his side. Gioviann[y] was still standing upright after I stabbed him." However, when confronted at trial with the video, Charon acknowledged that this was not complete or accurate:

Q: All right. So what he says is ["]I looked at my hand and I didn't have blood or anything. I thought I missed or it was stuck, the knife, but he wasn't about to die or anything. He was fighting.["] That's what he says. And what you say, supposedly translating what he said is . . . Giovann[y] was still standing upright after being stabbed. Is that what he said?

. . . .

A: No. I gave a summary because throughout the whole statement he kept . . . drilling on the fact that he only stabbed him once and that [the victim] did not die with that blow. . . .

Q: . . . [Y]ou didn't interpret something he did say, did you?

 

A: No. I summarized what he basically said.

 

Q: You summarized the fact that he said I looked and I didn't see any blood on my hands. You said that?

 

A: No. I didn't say nothing about no blood on my hands, no.

 

Q: Why not? That's what he said, isn't it?

 

A: Well, because he deviated from the question.

 

The videotape was played at the Miranda hearing and at trial. It was given to the jurors to take into the jury room as evidence. However, as we have stated, no English translation was provided.

This brings us to the critical portion of the video statement, in which defendant expressed the need for an attorney. In accordance with the procedure we have described, Charon spoke to defendant in Spanish, followed by defendant's responses in Spanish. Charon then spoke in English to Ackerman, telling her what defendant said. However, these were only summaries and characterizations of what defendant said, not verbatim translations.

This procedure resulted in a written "Voluntary Statement," which consumed nine-and-one-half double-spaced pages, and which defendant signed. Although the statement purports to be a typical "Q. & A." statement, it was not, for the reasons we have described. The portion of the statement dealing with defendant's assertion of his right to counsel reflected only the following:

Q. Have you read your Miranda Rights and did you sign the form stating you understood your rights?

 

A. Yes.

 

Q. Did you also read the Waiver portion and sign the form stating you wish to waive your rights and to speak to me now without an attorney present?

 

A. Yeah, that I understand that I am going to talk to you know [sic], but I am going to get a lawyer later.

 

Q. You want to continue talking to us now?

 

A. Yes, I want to talk to you now, but I want a lawyer later.

 

Q. Do you understand that you may stop answering my questions at any time during this statement?

 

A. Yes.

 

Q. With These Rights in mind, do you wish to continue with this statement and answer further questions?

 

A. Yes.

This sounds simple and straightforward. But that was not the case. During the Miranda hearing, the video was played, and Charon was intermittently questioned about it during his direct testimony and on cross-examination. As reflected by the questions, comments, and answers during this testimony, defendant did not simply say, in effect, I will need a lawyer later, but I do not want one now. This exchange occurred during Charon's direct testimony:

[Prosecutor:] [H]e's now saying I know that I need a lawyer, but I don't need one right now -- we all heard exactly what he said, I can't get it exactly right, but essentially that's what he's saying, is that correct?

 

[Charon:] Yes.

 

[Prosecutor:] Now, you stop -- and he actually was answering the last question in English -- answer [sic] in English saying I know I need a lawyer, I need a good lawyer, I stabbed him but I didn t kill him essentially is where we left off, correct?

 

[Charon:] Yes, sir.

 

[Defendant's counsel:] Objection. What he said was I need a lawyer for this, so that the record is clear. He didn't say I didn't need a lawyer, he said I need a lawyer for this.

 

[Court:] Okay. Yeah, he said I'm gonna pay for a lawyer, I need a good lawyer, because I didn't kill him I think, something like that.

 

. . . .

 

[Prosecutor:] He just said he wants to talk to us now, but he needs a lawyer for courts later. Is that what -- said?

 

[Charon:] Yes, sir.

 

[Prosecutor:] And is that you -- he said in Spanish?

 

[Charon:] Yes, sir.

 

Defendant's counsel revisited whether defendant had been requesting the immediate assistance of counsel during Charon's cross-examination:

Q: Okay. Now on this tape, there comes a point in time when you ask [defendant] if he's willing to renounce because the Spanish word is renunciar right, r-e-n-u-n-c-i-a-r; correct?

 

A: Yes, sir.

 

Q: If he's willing to renounce his right to an attorney and talk to you now; correct?

 

A: Yes, sir.

 

Q: . . . [D]o you remember him saying I need an attorney for this; do you remember him using those words?

 

A: No, his words were I know I'm gonna need an attorney for this; those were his words.

 

. . . .

 

Q: Not I need an attorney for this?

 

A: No . . . what I remember him saying was I know I'm gonna need an attorney for this.

 

The questioning continued after replaying the video:

Q: Okay. He doesn't say the word later. All he says is I need a lawyer for this; correct?

 

A: Yes, correct.

 

Q: All right. And you interpreted that as . . . he doesn't really want a lawyer for this, he wants a lawyer for later; right?

 

At this point, the footage was replayed, and the cross-examination continued:

Q: What did he just say?

 

A: I need a lawyer for this.

 

Q: Nothing about I need one in the future or I --

 

A: No, he said a lawyer for this.

 

. . . .

 

Q: So when he says that you tell him don't deviate from the question [']cause you don't want him to talk about this; correct?

 

A: Because we're gonna go back to the -- to explain further of what he means about needing a lawyer.

 

. . . .

 

Q: So Detective Ackerman says to him well you want to talk to us now right and he says yea I'm gonna talk to you now and I'm gonna get a lawyer later; right.

 

A: Yes.

 

Q: And that's why you continued to question him?

 

A: Yes.

 

Q: [']Cause you would have stopped if he said I want a lawyer; correct?

 

A: Yes, sir.

 

Q: So why didn t you stop when he said the next thing he said?

 

(Video tape playback)

 

Q: What did he just say?

 

A: He's repeating again --

 

Q: What did -- what were the words he just used, I want a lawyer; isn't that what he said?

 

A: Well that's what she -- she's asking me -- he answered us -- she's asking me what he told us and now --

 

Q: What words did you just hear come out of his mouth?

 

. . . .

 

A: I want a lawyer.

 

Q: Okay. I want a lawyer.

 

A: Yes.

 

Q: Not later, not next week, not for the purpose of this case because I need one. I want a lawyer; correct? That's what he said.

 

A: Yes, he said that.

 

Q: Okay. And then you add another word that he didn't even say when you say --

 

(Video tape playback)

 

Q: And you add the word later. He didn't say that . . . . He says I want a lawyer and you add the word later; he didn't say that did he, just yes or no.

 

A: I added the word later, yes.

 

Q: Which he didn't even say; correct?

 

A: Because he had said it previously --

 

Q: I didn't ask you what he said previously, I'm talking about right there and then, right now.

 

A: Yes, I did add that word.

 

Q: Okay, even though he didn't say it?

 

A: Yes, he --

 

Q: Okay.

 

A: He didn't repeat it, no.

In its appellate brief, the State acknowledges that defendant's final comment on the subject was an unqualified statement, in the present tense, that "I want a lawyer." The State further acknowledges that defendant's statement was "[f]ollowed by Det. Charon, who stated, 'later' in English." From this, the State argues that "[a]t that point defendant stated nothing, indicating that his intentions were, as previously stated, that he wished to speak now but would need a lawyer later." The trial court agreed with that interpretation of defendant's statements.

III

In Point One, defendant argues that the court erred in admitting his videotaped and written statements because he unequivocally requested, but was denied, an attorney prior to giving them. The court initially noted that resolving the issue before it was "a question of interpreting what it is that happened [in the recorded statement] and whether there's any ambiguity about that." From viewing the videotape, the court was persuaded that "defendant wanted to tell the police his account of this incident." The court acknowledged "that there [was] no equivocation about the fact that defendant wanted a lawyer" and that defendant clearly indicated his desire for an attorney on two specific occasions. However, the court reasoned:

But what is critical is he intended to get a lawyer later because he wanted very much [to] tell the police now at this time that he did not kill this man, that another person did it, and he wan[t]ed the police to know that at this moment in time. . . . I'm satisfied from all of that very confidently that the defendant was not indicating that he had any thoughts about having a lawyer before he talked to the police . . . . And his thought was that he would certainly want to retain a lawyer later on because he recognized that he was a part of this but was not the killer.

For statements made by a defendant during custodial interrogation to be admissible in evidence, the State must prove beyond a reasonable doubt that the defendant was advised of his Miranda rights, understood them, and knowingly and voluntarily waived them before giving the statement. State v. Adams, 127 N.J. 438, 447 (1992). All of the surrounding circumstances must be considered on a case-by-case basis. State v. Miller, 76 N.J. 392, 402 (1978). A reviewing court will generally uphold a trial court's admission of a confession, unless the court's findings were "not supported by substantial credible evidence." State v. Elkwisni, 384 N.J. Super. 351, 366 (App. Div.), certif. denied, 187 N.J. 492 (2006), aff'd, 190 N.J. 169 (2007).

Although the right to counsel is distinct from the right against self-incrimination, it is an ancillary right that "constitute[s] an indispensable counterweight to the inherently coercive nature of custodial interrogation," and therefore "effectuates the privilege against self-incrimination." State v. Reed, 133 N.J. 237, 258, 262 (1993). The State's burden to show that a defendant relinquished his or her right to counsel is a "heavy" one, such that "[w]aiver will not be implied from the fact that the defendant incriminated himself [or herself] after new Miranda warnings were given." State v. McCloskey, 90 N.J. 18, 28 (1982) (citation omitted). Further, "[b]ecause courts assume that defendants seek the advantage of such basic protections, they 'indulge every reasonable presumption against waiver of [these] fundamental constitutional rights.'" Id. at 25 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938) overruled in part on other grounds by Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)).

Once a defendant unequivocally requests counsel, all questioning must cease and may not resume unless the defendant initiates further communication with the police. Id. at 26, 28 (interpreting Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)); accord State v. Wright, 97 N.J. 113, 122-23 (1984) (because the accused made an unequivocal request for an attorney, the State had to prove that the defendant initiated the subsequent questioning).

Defendant argues that, because his last words to the police regarding the assertion of his right to counsel were, "I want a lawyer," he made an unequivocal request for counsel, and, because he did not initiate further communication with the police, the precedents to which we have just referred required that all questioning should have ceased. On this basis alone, defendant argues that all statements he made thereafter were required to be suppressed.

We need not decide the issue on that narrow basis. Instead, we decide it on defendant's alternative basis, with which we agree, that even if there was some equivocation in defendant's assertion of the right to counsel in the totality of the circumstances, his subsequent statements were nevertheless required to be suppressed.

When "a suspect is indecisive in his request for counsel, there may be some question as to whether he did or did not waive counsel." State v. Fussell, 174 N.J. Super. 14, 22 (App. Div. 1980). In such circumstances, police may ask narrow questions to clarify the defendant's intentions. Wright, supra, 97 N.J. at 120. In Wright, the Supreme Court endorsed the Fussell principles, which hold:

[W]here a suspect makes a statement which arguably amounts to an assertion of his Miranda rights and the interrogating agent recognizes that the statement is susceptible of that construction, his questioning with regard to the crime he is investigating should immediately cease and he should then inquire of the suspect as to the correct interpretation of the statement. Only if the suspect makes clear that he is not invoking his Miranda rights should substantive questioning be resumed.

 

[Id. at 120 n.4 (quoting Fussell, supra, 174 N.J. Super. at 21).]

 

At the very least, defendant's colloquy with Charon was "susceptible of [the] construction" that he presently wanted a lawyer, before answering further questions, and this "arguably" amounted to an assertion of his right to counsel. An equivocal request for counsel must be interpreted in the light most favorable to the defendant. McCloskey, supra, 90 N.J. at 26 n.1. When an ambiguous request for counsel is made, any further questioning initiated by the police must be narrowly circumscribed to clarification of the ambiguity. "The rule permits only clarification, not questions that 'operate to, delay, confuse, or burden the suspect in his assertion of his rights. Because such questions serve to keep the suspect talking, not to uphold his right to remain silent, they constitute unlawful "interrogation," not permissible clarification.'" State v. Johnson, 120 N.J. 263, 283 (1990) (quoting Christopher v. Florida, 824 F.2d 836, 842 (11th Cir. 1987) (footnote omitted), cert. denied, 484 U.S. 1077, 108 S. Ct. 1057, 98 L. Ed. 2d 1019 (1988)).

Charon and Ackerman simply did not adhere to this requirement. When defendant started to explain why he felt he needed a lawyer, Charon interrupted him and stopped him, telling him not to "deviate from the question." When defendant then flatly said, "I want a lawyer," Charon added the word "later," and, rather than the detectives focusing solely on whether defendant presently wanted a lawyer or only wanted to consider getting one later, they shifted the focus by asking the next two questions which we have previously quoted, namely: "Do you understand that you may stop answering my questions at any time during this statement?", and "With these Rights in mind, do you wish to continue with this statement and answer further questions?"

This is precisely what the Court prohibited in Johnson. Rather than seeking clarification about defendant's statement that he wanted a lawyer, and attempting to determine whether he meant he wanted a lawyer right now or at some future point, the detectives essentially changed the subject by asking whether he wanted to continue with his statement. It was apparent from all that had occurred until that time that defendant wanted to tell his version of the events. Therefore, he may well have wanted to continue to do so. However, that does not preclude the fact that he may have also wanted to consult with an attorney or have an attorney present before doing so. Thus, the follow-up to what was on its face an unequivocal assertion of the right to counsel and, which was at the very least an ambiguous assertion of the right, had the effect of confusing, rather than clarifying the ambiguity. It placed the burden on defendant to reassert his right to counsel, which would have been non-responsive to the succeeding questions, which pertained to a different subject.

This record does not support a finding beyond a reasonable doubt that the police scrupulously honored defendant's assertion of his right to counsel in accordance with the requirements of the controlling authorities. With knowledge of the heavy burden it bore, the State chose not to obtain an English transcription of the entire videotaped proceeding. It thus presented the court with admitted inaccuracies and omissions, as well as interpretations, summaries, and characterizations of what was said in Spanish, both by Charon and defendant. In light of these circumstances, combined with the strong presumption against waiver of the right to counsel, defendant's assertion of the right (even if equivocal or ambiguous), the requirement that an equivocal request for counsel be viewed most favorably to defendant, defendant's final comment on the subject (which was completely unequivocal), and the changing of the subject by the detectives rather than narrowly pursuing clarification, the State's proofs were insufficient to prove beyond a reasonable doubt that defendant waived his right to counsel.

We are mindful of our limited standard of review in matters such as these, and that "[a] disagreement with how the motion judge weighed the evidence in a close case is not a sufficient basis for an appellate court to substitute its own factual findings to decide the matter." State v. Elders, 192 N.J. 224, 245 (2007). We are not making our own findings of fact. From our careful review of the record, we exercise our authority and obligation as a reviewing court, and determine that the record lacks sufficient credible evidence to support the trial court's finding that, beyond a reasonable doubt, defendant did not assert his right to counsel under the totality of the circumstances and in accordance with the controlling legal principles.

Accordingly, we hold that the trial court erred in denying defendant's motion to suppress his videotaped and signed statements. For the reasons stated in Section V, infra, on retrial these statements shall not be admitted in evidence as part of the State's case-in-chief.

IV

In Point Two, defendant argues that the court should have suppressed all of his statements to the police because he lacked the mental capacity to appreciate and waive his Miranda rights. Although our determination of this issue is not necessary with respect to defendant's videotaped and written statements, it is necessary with respect to his unrecorded oral statement, because lack of mental capacity to understand and waive his Miranda rights is the only basis upon which defendant argues that this statement should have been suppressed.

On September 6, 2005, the first scheduled trial date, issues arose regarding defendant's competency to stand trial. His attorney produced documents from the Dominican Republic indicating that defendant might be mentally retarded. The documents reflected an intelligence quotient (I.Q.) of sixty-three, and treatment with learning and corrective therapy because of attention deficit disorder with hyperactivity. The court adjourned the trial to allow the defense to further investigate the issue.

The defense retained Dr. Joel Federbush, who issued a September 27, 2005 report, concluding that "[w]hile [defendant] displays a below average level of intelligence, it is my opinion with reasonable medical certainty that he is competent to stand trial." The State expressed concerns with Federbush's report because it did not address defendant's intellectual functioning and his ability to comprehend his rights.

Defense counsel disputed that his client's intelligence was germane to defendant's competency and advised the court that he did not intend to introduce any psychiatric testimony. Defense counsel resisted the court's suggestion that defendant submit to a court-ordered evaluation. Counsel felt that such testing would prejudice his client's ability to defend himself in the event of an appeal. The court nevertheless felt an obligation to pursue the matter, stating in relevant part:

I know that [defendant's attorney] represents that he is satisfied that he has thoroughly investigated this and that he's satisfied that this issue of the defendant's intellectual level with regard to his understanding and giving up his Miranda rights is something that has been fully investigated and there is nothing for the defense to present by way of a third party expert witness.

 

. . . [B]ut it seems to me paramount to that [sic] is I cannot responsibly go ahead with the trial and just close my eyes to these things and say let somebody else worry about it later on.

The court agreed that Federbush's report was inconclusive regarding defendant's intelligence and, over defense counsel's objections, ordered further evaluations. Defense counsel sought leave to appeal from that order, which we denied.

Several days before the next scheduled trial date, Dr. Charles S. Hasson, a licensed psychologist, examined defendant and concluded that he was neither competent to stand trial nor capable of understanding and intelligently waiving his Miranda rights. Hasson issued a November 22, 2006 letter report to that effect. In a more detailed report, dated November 28, 2006, Hasson described further testing he performed and concluded that defendant's I.Q. was an estimated fifty-two.

Defense counsel had not asked Hasson to opine on defendant's competency to stand trial or his ability to comprehend his rights. Nevertheless, Hasson volunteered his opinions on those subjects in his November 28, 2006 report. Hasson was apparently prepared to testify to that effect on November 28, but after speaking with the prosecutor, Hasson determined that he needed additional time to review materials of which he had not been aware, such as Federbush's report and defendant's police statements, and to conduct further testing. The parties agreed to hold a competency hearing on January 4, 2007. A new trial date was set for January 29, 2007, and the court appointed a psychologist to examine defendant.

On December 6, 2006, the court-appointed psychologist, Dr. Peter Paul, issued a report concluding that defendant was fabricating his cognitive impairments. He opined that defendant was "malingering by feigning intellectual and memory impairments" and that although defendant was intellectually below average, he did not appear to be in the mentally retarded range, and was thus competent to stand trial.

Hasson issued his final report on January 3, 2007. He now concluded that defendant was "minimally" competent to stand trial. Based upon further testing, however, he adhered to his opinion that defendant did not comprehend the meanings of the words "entitled," "right," and "appoint" and did not understand his right to remain silent. He acknowledged that determining defendant's comprehension was a "complicated matter." His ultimate conclusion was that defendant did not possess the requisite mental capacity to understand and waive his Miranda rights.

Hasson testified at length during the Miranda hearing. He described the materials he reviewed, the tests he performed, the results of his clinical interviews and observations of defendant, and the like. He acknowledged that other tests were indicated, but he did not perform them because of limitations resulting from defendant's being in jail. The other tests would have been probative of whether defendant was malingering. Nevertheless, Hasson contended that a component of one of the tests he did perform, the Grisso Test, was designed to detect malingering. He concluded that defendant was not malingering.

In a thorough oral decision, the trial court rejected Hasson's opinions. The court found that, although Hasson spent much time and effort in conducting his evaluation, he was somewhat lacking in experience in such matters, he gave conflicting opinions from time to time, he omitted some tests, and, overall, his credibility was lacking and his opinions were not persuasive.

Charon testified that he had previous experience working with mentally challenged individuals. In his view, defendant exhibited no impairments in understanding and communicating with him. He answered questions sensibly and responsively. The judge accepted Charon's testimony as credible. The judge also relied upon his viewing of the videotape in assessing defendant's ability to answer questions and communicate. And, the court had before it the reports of Federbush and Paul.

Based upon all of the evidence, the court found that defendant possessed sufficient mental capacity to understand and waive his Miranda rights.

Our review of that finding is narrowly circumscribed, as we have previously discussed. We recognize that "[a] judge sitting as the trier of fact is free to reject any testimony, in whole or in part, that he or she does not find credible, including the testimony of an expert." State v. Cryan, 363 N.J. Super. 442, 457 (App. Div. 2003). The record contains sufficient credible evidence to support the court's finding that defendant was capable of understanding and waiving his rights. Accordingly, we have no occasion to set aside that finding. As a result, on retrial, testimony regarding defendant's oral, unrecorded statement will be admissible.

V

The version of the events related by defendant in his oral, unrecorded statement was substantially similar to that provided in his videotaped and written statements. For that reason, it could be argued that the latter was merely cumulative of the former, and thus, admission of the latter in evidence was harmless error. However, we do not reach that conclusion. At the suppression hearing, the court inquired of defense counsel on this very point. Counsel responded that "without this tape I could argue that the cops made up the (indiscernible). So this tape . . . does a tremendous disservice to my case." We agree.

As we stated, the nine eyewitnesses produced by the State gave very dissimilar accounts of what they saw and what defendant's role was in the incident. Some of them were severely intoxicated at the time. Some changed their stories. Some had an interest in the case, while others did not. In such circumstances, defendant's own words, describing his conduct, would go a long way in helping the State prove its case.

It is one thing to have a police witness provide a summary from a police report of what defendant said. Such testimony would be subject to attack, based upon such things as the police misunderstanding what he said, not recording accurately what he said, fabricating what he said, omitting things he said or taking them out of context, and the like. See, e.g., State v. Hampton, 61 N.J. 250 (1972); State v. Kociolek, 23 N.J. 400 (1957). This is especially so with the translation issues we have described. It is quite another thing for the factfinder to receive in evidence a written "Q. & A." statement, signed by defendant, describing the events, and to see a videotape of him telling his story (albeit in a foreign language). The error was not harmless, and a new trial is required.

Reversed and remanded for further proceedings consistent with this opinion.2

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

2 Unfortunately, this case has experienced significant delays both in the trial court and in this court. As we have described in this opinion, trial for this April 25, 2004 crime was initially scheduled for September 6, 2005. That was a reasonable interval. The subsequent delay was occasioned by defendant's late request to obtain mental health evaluations, which began a process that took nearly one-and-one-half years before a Miranda hearing could be conducted with all relevant mental health evidence available. Then, after defendant's conviction and sentencing on May 18, 2007, defendant promptly filed a notice of appeal with this court, but did not file his brief until nearly three years later, on April 15, 2010. The prosecutor's brief followed on August 31, 2010. The matter was ultimately placed on our May 9, 2011 calendar.