STATE OF NEW JERSEY v. TERRANCE ATKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRANCE ATKINS, a/k/a

TERRANCE ARKINS,

Defendant-Appellant.

___________________________________

July 6, 2015

Submitted March 17, 2015 Decided

Before Judges Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 08-12-0931 and 09-07-0528.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

The sole issue in this appeal is whether defendant, Terrance Atkins, invoked his right to counsel during two separate custodial interrogations. The trial court found after a testimonial hearing that defendant did not invoke that right, and denied Atkins's motion to suppress his statements. Having considered defendant's arguments in light of the record and applicable principles of law, we reverse.

I.

At a subsequent trial at which defendant's statements were introduced, a jury found him guilty of third-degree possession of cocaine, N.J.S.A. 2C:35-5(b)(3); fourth-degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(12); third-degree possession of CDS (the marijuana) with the intent to distribute in a school zone, N.J.S.A. 2C:35-7; second-degree committing a drug offense while possessing a firearm, N.J.S.A. 2C:39-4.1; and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Thereafter, Atkins pleaded guilty to a separate indictment charging fourth-degree contempt, N.J.S.A. 2C:29-9(a), by violating a drug offender restraining order pursuant to N.J.S.A. 2C:35-5.7. The court imposed an aggregate term of three years' imprisonment, with one year of parole ineligibility, on the drug offenses; this was to run concurrent with eighteen months on the contempt, and consecutive to five years, with three years of parole ineligibility, on the weapons offenses.

Given the limited issue on appeal, we focus on the facts presented at the Miranda1 hearing. The State's witnesses were Somerset County Prosecutor's Officer (SCPO) Detective Salvador Martinez and Somerset County Sheriff's Office Detective Michael Vanover, who together transported defendant to Bound Brook Police Department headquarters and interrogated him. The State also introduced into evidence transcripts and videorecordings of the interrogations, and defendant's signed Miranda forms waiving his right to remain silent.

Martinez and Vanover were members of a joint Gangs and Guns Task Force. On December 2, 2008, task force officers had been monitoring the suspicious behavior of another person who was waiting on a street corner in Bound Brook. During a field inquiry, that person stated he was waiting for defendant to pick him up.

After defendant arrived, an officer approached defendant's car to confirm the information he had received, and in doing so, spotted apparent cocaine in the door pocket. Defendant was arrested. In a search incident to arrest, officers seized over $250 in currency and two cell phones from defendant.

Martinez was driving the defendant and Vanover to headquarters, and could not recall statements defendant may have made during the ride. However, Vanover testified that defendant repeatedly tried to talk to him, saying, "I want to tell the truth. I want to tell you what's going on." Vanover said he told defendant "not to say anything, wait till we get back . . . [and] can advise him of his Miranda rights." Vanover testified that defendant also asked if he was in trouble, and what was going to happen next. Vanover advised defendant that he "most likely . . . [was] in trouble."

Defendant was placed in an interrogation room where he sat alone for a period of time. Vanover testified that defendant "had been banging or yelling trying to get someone's attention." Vanover opened the door and defendant "said that he wanted to talk. He said I want to tell the truth." Vanover again told defendant to wait until he was advised of his rights.

When Vanover entered the interrogation room, defendant began to speak, and Vanover again asked him to wait. Vanover was waiting for Martinez to return with the Miranda form.

Once Martinez entered with the form, Vanover took the lead in advising defendant of his rights. Vanover asked defendant if he understood English, and if he had graduated from high school or earned a GED. Defendant responded, "yes," and then said "in a special ed classroom."2 Vanover stated that he was going to review defendant's rights, and if defendant agreed, he was to mark the appropriate box on the Miranda form. The form had boxes for defendant to indicate whether he did or did not understand that (1) he had the right to remain silent; (2) what he said could be used against him in a court of law; (3) he had the right to speak with an attorney at any time and have him present during questioning; (4) if he could not afford a lawyer, and wanted one, a lawyer would be provided at no cost prior to questioning; and (5) a decision to waive his rights was not final and he had the right to stop answering questions or speak with a lawyer at any time during the questioning.

Defendant initially acknowledged his understanding of his right to remain silent, and that what he said could be used against him in a court of law. Vanover then addressed the right to counsel in the following exchange:3

Vanover: Alright. You have the right to speak with a lawyer at any time, and have him or her with you, during, or before or during questioning, do you understand this right?

Defendant: Yes.

Vanover: Okay. Alright. If you cannot afford to hire a lawyer, but want one, a lawyer will be appointed at no cost prior to any questioning, do you understand this right?

Defendant: Yes.

Vanover: Alright.

Defendant: How do I go about getting me a lawyer?

Vanover: You would ah. . .

Defendant: A Public Defender.

Vanover: It's however you want to do it. If you want a public defender, you have to apply for one. If you want a private attorney you would go and give him a retainer, or however an attorney would go about it. Alright? A decision to waive these rights, and to answer questions is not final, you have the right to stop answering questions, or speak with a lawyer at anytime, during questioning, do you understand this right?

Defendant: Yes.

Vanover: Alright. Alright. Having been advised of your rights, do you want to talk to us now?

Defendant: Yes.

Defendant then acknowledged that he had been advised of his rights and understood them; had been advised that criminal charges had been filed; had agreed to speak to police; and had signed so confirming.

Martinez testified that he interpreted defendant's inquiry about getting a public defender to be a "procedural" question regarding how he would obtain a public defender "after the fact." Martinez stated he relied on "the totality of the circumstances," including defendant's apparent willingness to speak to the officers before the interrogation began.

Vanover likewise interpreted defendant's question to be procedural, specifically, who would he talk to about getting an attorney, and how would he apply for one. Vanover testified that defendant appeared to be "cooperative" and eager to speak to the officers.

In the interview that followed defendant's execution of the Miranda form, he consented to a search of his vehicle after being informed that if he did not, a warrant would be sought. He was asked to read and sign a consent form, and stated, "I don't read that good," prompting Vanover to state that he would read it to him. Defendant admitted to possessing four bags of "weed" in the trunk of the vehicle. He asserted there was nothing else in the vehicle. He denied possession of the cocaine in the door, but admitted that he gave crack cocaine to another person to hold for him. Vanover conceded that there were "some indications that it was possible" that defendant was trying to protect his cousin and "take the weight."

Officers conducted the consent search of the vehicle in defendant's presence. Vanover was present at the search. Vanover testified that as items were removed from the vehicle, defendant "was indicating that, yes, that's mine. That's mine. That's mine." In particular, officers seized a pouch under the front seat containing crack cocaine. Defendant initially stated that it was his, but then changed his mind a couple of minutes later. According to the evidence at trial, officers also found twelve bags of marijuana in the trunk; a Fraternal Order of Police badge; a debit card in another person's name; a neoprene facemask; and a Daisy Powerline pellet handgun.

After the search, Vanover, Martinez, and defendant returned to the Bound Brook Police Department headquarters for the second interrogation session. Vanover stated at the outset that he was going to "re-advise" defendant of his rights, "[a]nd we're gonna talk to you about what we found in your car, unless you don't want to talk to us[.]"

He turned to another copy of the same form he reviewed in the first session. This exchange followed

Vanover: Same form as last time, but we're gonna go over the uhum, gonna do it the exactly the same way. So it's no, no surprises. Alright. Same thing, if you agree with it, check yes, put your initials, if you disagree with it, check no, and put your initials. At any point you want to stop or you want an attorney or anything, just speak up and say something. Okay? You have a right to remain silent do you understand this right?

Defendant: Yes.

Vanover: Alright. Alright. Anything you say may be used against [you] in a Court of Law do you understand this?

Defendant: Yes.

Vanover: Alright. You have the right to speak with a lawyer at anytime, and have him or her with you during, before or during any questioning, do you understand this right?

Defendant: Yes. Any way I would uhum, when, how will I get a, public defender?

Vanover: If you want ah pu, if you need a public defender, you have to apply for one when you go for arraignment. They'll ask you, do you want a public, apply for the public defender's office? Uhum, and that's when you can get a public defender, okay?

Defendant: Alright.

Vanover: I mean. If you're tell [sic]

Defendant: Am I go out in front of the Judge or no?

Vanover: No when you go for the judge he'll basically you gonna be arraigned on your charges.

Martinez: He's gonna, he's gonna advise you of what you've been charged with, uhum, and then, and then he'll he'll tell you what you're rights again.

Defendant: Yup.

Martinez: Basically you're gonna, you know, you have the opportunity to get an attorney if you want one, you know right any time, we're, we're not forcing you to talk to us okay, just so you understand that.

Defendant: Yeah I know.

Martinez: If you don't want to talk to us, you don't have to. Okay? Uhum you know but, but that's how it goes. You know we're, we're not here to force you talk to us if you don't want to talk to us, you don't have to. But you know.

Vanover: Yeah basically when you go before him, he's gonna say do you have an attorney or do you want an attorney, and you want a public defender, he's gonna say okay, someone will come and see you from the public defender's office. You'll have to fill out a big packet of paperwork, and they'll see if you eligible for a public defender. Okay? And that's how you go about going and getting a public defender.

Defendant: Alright.

Vanover: Alright. Alright so if you cannot afford to hire a lawyer, but want one, a lawyer will be appointed at no cost prior to any questioning, do you understand this right?

Defendant: Yes.

Vanover: Alright. Alright. A decision, a decision to waive these rights and to answer questions is not final, you have the right to stop answering questions, or speak with an attorney at any time during questioning, do you understand this right?

Defendant: Yes.

Vanover: Alright. Alright. Having advised of your rights do you want to speak with us again?

Defendant: Uh-hum.

Vanover testified that defendant's second inquiry about getting a public defender was, as in the first interview, a procedural question.

The trial court denied the motion, finding that defendant did not invoke his right to counsel

Here, it is clear, given the totality of the circumstances, that the defendant knowingly, intelligently and voluntarily waived his Miranda rights. Defendant's argument that he was asking for an attorney when he asked "How do I go about getting a lawyer," and later when defendant asked, "When, how will I get a Public Defender," are unsupported. The police officers, whose testimony the Court finds to be responsive, forthright, credible and, therefore, worthy of belief, gave defendant two sets of Miranda warnings orally and through a standard Miranda form, one prior to searching the vehicle and one after the defendant came back from observing the car search itself. They read each warning individually and asked the defendant if he understood his rights, to which he replied "yes."

Furthermore, the police officers answered defendant's questions regarding a Public Defender as a procedural question, and defendant appeared satisfied with the answer.

Additionally, after defendant asked about the Public Defender, the police officers reminded the defendant that he could request an attorney at any time, that the officers were not forcing the defendant to speak with them, and if defendant did not want to speak to the officers, he did not have to speak to them. The defendant acknowledged the officers' statements and signed two separate Miranda waivers prior to speaking with police.

Thus, having reviewed all of the testimony and evidence presented, I find that the custodial interrogation was properly conducted. The State has proven beyond a reasonable doubt that the Miranda requirements were met and the requisite warnings given.

Furthermore, the State has proven, again beyond a reasonable doubt, that the defendant knowingly and intelligently waived each and every one of these rights before making a statement, and that the defendant neither invoked nor attempted to invoke any of those rights thereafter.

II.

In reviewing denial of a motion to suppress for an alleged violation of Miranda, we use a "searching and critical" standard of review to protect a defendant's constitutional rights. State v. Hreha, 217 N.J. 368, 381-82 (2014) (internal quotation marks and citation omitted); State v. Patton, 362 N.J. Super. 16, 43 (App. Div.), certif. denied, 178 N.J. 35 (2003). An appellate court shall defer to a trial court's fact findings on a Miranda motion, if supported by sufficient credible evidence. State v. Yohnnson, 204 N.J. 43, 62 (2010). We review de novo the trial court's legal conclusions that flow from established facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The familiar Miranda warnings were required to combat the inherent coerciveness of custodial interrogation. "[A] custodial interrogation by law enforcement officers is inherently coercive," in part because of the "inherent psychological pressure on a suspect in custody." State v. P.Z., 152 N.J. 86, 102 (1997). Under Miranda, before commencing a custodial interrogation, police must advise an accused that "he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda, supra, 384 U.S.at 479, 86 S. Ct.at 1630, 16 L. Ed. 2d at 726. The warnings are designed to assure that the waiver of the fundamental right to remain silent is voluntary, knowing, and intelligent. Id. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707.

"Once an accused invokes the right to counsel, that right must be 'scrupulously honored.'" State v. Chew, 150 N.J. 30, 61 (1997) (quoting Michigan v. Mosley, 423 U.S. 96, 103, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 321 (1975)); State v. Melendez, 423 N.J. Super. 1, 23 (App. Div. 2011), certif. denied, 210 N.J. 28 (2012). That "entails terminating all questioning 'until counsel has been made available [or] unless the accused [] initiates further communication, exchanges, or conversations with the police." Chew, supra, 150 N.J. at 61 (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386 (1981)).

The State bears the burden to prove, beyond a reasonable doubt, that interrogating officers have complied with Miranda, and a waiver of the right to remain silent is voluntary, knowing, and intelligent. Yohnnson, supra, 204 N.J. at 59; State v. Presha, 163 N.J. 304, 313 (2000). The trial court must examine the totality of the circumstances. State v. Adams, 127 N.J. 438, 447-48 (1992). That includes the defendant's age, education and intelligence. State v. Cardona, 268 N.J. Super. 38, 44 (App. Div. 1993), certif. denied, 135 N.J. 300 (1994).

Under New Jersey law, "'courts interpret equivocal requests for counsel in the light most favorable to the defendant.'" State v. Alston, 204 N.J. 614, 621 (2011) (quoting State v. McCloskey, 90 N.J. 18, 26 n.1 (1982)); see also State v. Dixon, 125 N.J. 223, 240-41 (1991). If a suspect's "words amount to even an ambiguous request for counsel, the questioning must cease, although clarification is permitted; if the statements are so ambiguous that they cannot be understood to be the assertion of a right, clarification is not only permitted but needed." Alston, supra, 204 N.J. at 624. Those clarifying answers may not "delay, confuse, or burden the suspect in his assertion of his rights." Id. at 623 (internal quotation marks and citation omitted).

In determining a suspect's meaning, "a minute parsing of the words used," in isolation, may lead to an inaccurate conclusion. Id. at 627. On the other hand, a court must be mindful that "suspects do not, and cannot be expected to, 'speak with the discrimination of an Oxford don.'" Ibid. (quoting Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362, 371 (1994)). In the search for meaning, a court may examine a sentence in the context of other statements made thereafter.

For example, in Alston, the Court rejected the argument that defendant had at least ambiguously requested an attorney when he asked whether he should have a lawyer, and how could he obtain one during questioning. Alston asked, "Should I not have a lawyer in here with me?" Id. at 618. The interrogating detective immediately sought clarification by asking, "You want a lawyer?" Alston then responded in the negative, stating, "No, I am asking you guys, man. I don't I'm just I see you guys, man." Ibid.

After the detective said, "I can't make you," Alston asked, "Sir, if I did want a lawyer in here with me how would I be able to get one in here with me?" Ibid. The detective told Alston, "[T]hat's on you," in other words, it was his decision. Ibid. The detective said, "If you want a lawyer, then we stop and you going to get your lawyer." Ibid. After an additional exchange, the detective asked again, "Do you want a lawyer? No that's what you're saying?" Alston responded, "When I go to court, I guess." Ibid.

In finding that Alston did not invoke his right to counsel, the Court stated that, "a minute parsing of the words used might yield an inaccurate picture of what was meant." Id. at 627. The Court concluded that Alston's statements constituted a request for advice, and were "a hypothetical query about the mechanics relating to accessing counsel if he chose to assert a right he plainly knew was within his power to assert." Id. at 627-28.

III.

Applying these principles, and mindful of the demanding standard of proof imposed upon the State, we are convinced that the trial court erred in concluding that the State met its burden to show that defendant did not, at least ambiguously, invoke his right to counsel. As a result, the police were obliged to cease questioning, or, alternatively, to clarify defendant's meaning. As the officers did neither, they failed to comply with Miranda.

We think it plain that defendant's questions about how to obtain a public defender in each interrogation session were at least ambiguous. Taken literally, we recognize, the questions sought information about the process for obtaining an attorney. However, a person's words often are not intended to be taken literally, nor does a reasonable listener take them literally.

One example illustrates our point. A stranger walks into a neighborhood restaurant and, confronted with a "Seat Yourself" sign, finds a booth. A number of persons arrive after him, take seats in booths and at the counter, and are greeted by name by the servers. To the stranger's consternation, these latecomers are promptly served while the stranger is ignored. Exasperated, he finally waves at a server and says, "How do I get service in this place?" His meaning is clear: he does not seek information about service; he seeks service.

We recognize that defendant's questions did not express, as clearly as the stranger did, a similar desire for the thing itself an attorney as opposed to information about how to obtain it. Nonetheless, under the circumstances, defendant's statements were at least ambiguous.

The surrounding circumstances lend support to a finding of ambiguity. The evidence indicates that defendant had some cognitive limitations. In the first interrogation, he stated he graduated from high school "in a special ed classroom." Later in the same session, he said, "I don't read that good," when Vanover asked that he read and sign the consent-to-search form. Defendant's apparent limitations support a finding that he did not choose his words with the discrimination of an Oxford don.4

Although Vanover gave defendant procedural information in response to defendant's question in the first session, defendant essentially repeated the question in the second session. That repetition also tends to support the conclusion that defendant did not understand the answer. Alternatively, he was not satisfied with the answer (contrary to the trial court's finding) because he was not seeking procedural information.

The State places undue weight on defendant's willingness to speak prior to the custodial interrogation. We recognize that his reported willingness, and his possible desire to "take the weight," tend to support a finding that defendant wished to waive his right to remain silent, and to speak without the assistance of counsel. Yet, the purpose of the Miranda warnings is to assure not merely that a defendant's waiver is voluntary, but that it is knowing and intelligent. Once a cooperative defendant is informed that he has the right to counsel, including appointed counsel, a defendant may have second thoughts about the decision to speak, and seek legal counsel. Defendant's questions at least ambiguously invoked the right to counsel.

Other courts have found at least ambiguity in similar statements, with varying results, depending on whether, under the governing rule in that jurisdiction, ambiguity is sufficient to require clarification, or a cessation of questioning. See Lord v. Duckworth, 29 F.3d 1216, 1220-21 (7th Cir. 1994) (finding where defendant stated "'I can't afford a lawyer but is there anyway I can get one?'" "'a reasonable officer . . . would have understood only that the suspect might be invoking the right to counsel'") (quoting Davis, supra, 512 U.S. at 459, 114 S. Ct. at 2355, 129 L. Ed. 2d at 371); Hampel v. State, 706 P.2d 1173, 1179-81 (Alas. Ct. App. 1985) (interpreting suspect's question, "first of all how would I be able to get one, a lawyer" to be an ambiguous or equivocal request for an attorney, requiring clarification); State v. Bittick, 806 S.W.2d 652, 655 (Mo. 1991) (affirming trial court's finding that defendant's statement "'How do I get an appointed attorney' constituted a request for an attorney" despite "the equivocal nature of the 'request'"); Huff v. State, 678 S.W.2d 236, 241-42 (Tex. Ct. App. 1984) (stating that suspect's "questions regarding how he could obtain an attorney were sufficient to require a cessation of the interrogation" and clarification); State v. Subdiaz-Osorio, 849 N.W.2d 748, 752 (Wisc. 2014) (stating that defendant's statement, "'How can I . . . get an attorney here because I don't have enough to afford one,'" "could lead a reasonable officer to wonder whether [the suspect] was affirmatively asking for counsel to be present during the custodial interrogation or simply inquiring about the procedure for how to obtain an attorney"); Cf. People v. Harris, 552 P.2d 10, 11-12 (Colo. 1976) (finding that young suspect's question, "'When can I get a lawyer,'" to be a request for counsel that should have prompted officers to cease questioning).

In examining defendant's questions about how to get an attorney, and the officers' responses, the contrast with Alston is striking. Defendant and Alston each literally asked about the process for obtaining an attorney. Alston asked, "Sir, if I did want a lawyer in here with me how would I be able to get one in here with me?" Alston, supra, 204 N.J. at 618. Defendant asked in the first interrogation, "How do I go about getting me a lawyer? . . . A Public Defender?" In the second interrogation, he asked "[W]hen, how will I get a, public defender?"

The detective interrogating Alston immediately sought clarification, and asked directly whether Alston was requesting an attorney. The responses clarified that Alston was not seeking an attorney at that time. By contrast, Martinez treated the question solely as an inquiry about process, and never secured a clarification as to whether defendant actually sought counsel.

Moreover, Vanover's responses undermined the purpose of the Miranda warnings. They violated the command that clarifying questions not "confuse, or burden the suspect in his assertion of his rights." Alston, supra, 204 N.J. at 623 (internal quotation marks and citation omitted). Although Vanover initially informed defendant that if he could not afford an attorney, one would be appointed for him as required by Miranda Vanover responded to defendant's question in the first session by explaining that defendant would "have to apply" for an attorney if he could not afford one injecting some uncertainty about access to an attorney. In the second session, Vanover created even more doubt about defendant's ability to obtain counsel. Although Vanover stated "if you cannot afford to hire a lawyer, but want one, a lawyer will be appointed at no cost prior to any questioning," he also told defendant he would have to "apply" for a public defender, and only when he was arraigned. Vanover told defendant "You'll have to fill out a big packet of paperwork, and they'll see if you [are] eligible for a public defender." In so doing, he again engendered uncertainty about whether defendant could actually obtain counsel, and exaggerated the burden involved in the process.

We reject the State's argument that the officers obtained clarification in the first session, by advising defendant that his waiver was not final and he had the right to speak with an attorney at any time, and confirming that defendant wanted to talk to them. By inquiring whether defendant still wanted to talk, the officers did not clarify defendant's question about obtaining counsel; they bypassed it. As a result, defendant's ambiguous request for counsel was not "scrupulously honored."

Consequently, his custodial statements that followed should have been suppressed. The State does not argue that the admission of the statements at trial was harmless. We therefore reverse the conviction and remand for a new trial at which defendant's custodial statements, and evidence obtained based on those statements, shall be excluded.

Reversed and remanded. We do not retain jurisdiction.

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

2 Defendant's reference to special education is clearly audible in the videorecording of his interrogation, although the transcript describes that portion as "inaudible."

3 We quote from the transcript admitted into evidence, except where indicated.

4 Defendant did not testify, or offer any evidence to detail the extent of his cognitive limitations. However, as noted, the State must shoulder the burden of demonstrating that defendant knowingly, intelligently, and voluntarily waived his rights.