STATE OF NEW JERSEY v. DAMU ALSTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4871-08T44871-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DAMU ALSTON,

Defendant-Respondent.

________________________________________________________________

 

Argued November 4, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 08-07-02243.

Hilary L. Brunell, Assistant Prosecutor,

argued the cause for appellant (Paula T.

Dow, Essex County Prosecutor, attorney;

Ms. Brunell, on the brief).

John J. McMahon, Deputy Public Defender, argued

the cause for respondent (Yvonne Smith Segars,

Public Defender, attorney; Mr. McMahon, of

counsel and on the brief).

PER CURIAM

By leave granted, the State appeals from an April 14, 2009 order of the Law Division suppressing defendant Damu Alston's oral confession to the murder of Dana Grimsley. After a Miranda hearing, the motion judge determined that defendant did not knowingly waive his right to counsel and suppressed defendant's statement. We reverse.

These are the relevant facts adduced from the hearing. On January 8, 2008, defendant was arrested for the September 2, 2007 murder of Dana Grimsley. Defendant was then brought to the Newark Police Station, Homicide Squad for questioning at approximately 8:00 a.m., the morning of his arrest.

Detective Christopher Smith, of the Essex County Prosecutor's Office, and Detective Murad Muhammad of the Newark Police Department informed defendant of his Miranda warnings at approximately 10:16 a.m., utilizing a standard form provided to the police. This initial reading was accurate and complete, devoid of any misstatements or omissions. Specifically, defendant was advised in essence:

1. You have the right to remain silent.

2. Anything you say can be used against you in a court of law.

3. You have the right to talk to a lawyer and have him present with you while you are being questioned.

4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one.

5. You have the right to stop answering questions or giving a statement anytime you wish and do not have to give a reason. You also have the right to demand a lawyer during the giving of a statement or the answering of questions and may stop until he arrives. If you cannot afford a lawyer, one will be appointed to represent you.

[Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707.]

Muhammad asked defendant five different times during recital of the Miranda warnings, whether he understood what was being read to him. Defendant answered "yes" each time. Following this specific exchange, Muhammad asked defendant if he had any questions, to which defendant replied "no." Beginning with this initial reading and continuing throughout the ten minute interview with Smith and Muhammad, an audio-tape was recording the exchange.

The tape revealed that after defendant was given his Miranda warnings, he read and signed a Miranda waiver, indicating he understood his rights, was willing to answer questions, he did not wish to have a lawyer with him at that time but that he understood he could have one at any time if he so desired. The form also indicated defendant was informed and understood he could terminate the interrogation at anytime. Both Smith and Muhammad signed the form, acknowledging that they witnessed this waiver.

Immediately after signing this waiver statement, defendant and Muhammad engaged in the following conversation:

Mr. Alston: I feel like I'm signing my life away.

Detective Muhammad: Not signing your life away.

Mr. Alston: Should I not have a lawyer in here with me?

Detective Muhammad: You want a lawyer?

Mr. Alston: No, I am asking you guys, man. I don't I'm just I see you guys, man.

Detective Muhammad: I can't make you.

Mr. Alston: Sir, if I did want a lawyer in here with me how would I be able to get one in here with me?

Detective Muhammad: That's on that's on you. If you want a lawyer, then we stop and you're going to get your lawyer. That's why he read that clearly to you and your waiver. If you want to stop at this time then we stop at this time. It's either yes or no, Damu.

Mr. Alston: I'm already waist-deep, why?

Detective Muhammad: Huh?

Mr. Alston: I'm already waist-deep, about to drown, why?

Detective Muhammad: You've got to answer yes or no.

Mr. Alston: I already did.

Detective Muhammad: Do you want lawyer? No -that's what you're saying?

Mr. Alston: When I go to court, I guess.

Detective Smith: Do - do you want to continue answering questions - answering our questions?

Mr. Alston: Sure why not.

After this exchange, defendant gave a statement indicating that he shot Grimsley to "get away from him and get him off me." Defendant also revealed where he disposed of the gun used in the murder. Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3a(1)(2), second-degree possession of weapons for an unlawful purpose, N.J.S.A. 2C:39-4a, and third-degree unlawful possession of weapons, N.J.S.A. 2C:39-5b.

Defendant moved to suppress his audio-taped statement. A hearing followed. N.J.R.E. 104(c). At the conclusion of the hearing, the judge suppressed the statement. In his decision, the judge acknowledged that "all the Miranda rights [were] clearly given to" defendant. He recognized that defendant "ultimately express[ed] the willingness to give a statement." The judge also agreed that defendant stated that he "guess[ed]" he wanted to have a lawyer at trial, but he made no explicit statement about having a lawyer present during the custodial interrogation. However, the judge found that there was at the very least an equivocal request for an attorney during the custodial interrogation. Under the circumstances of this case, the judge concluded that once defendant uttered the words requesting information on how to obtain a lawyer at that time, Muhammad was obligated to "in some way communicate[] again that if [defendant] could not afford an attorney, one would be appointed" for him. The judge suppressed the statement. We granted the State's motion for leave to appeal, and this appeal followed.

The Miranda warnings were enunciated by the United States Supreme Court to safeguard the right against self-incrimination, a right guaranteed by the Fifth Amendment of the United States Constitution. U.S. Const. amend. V; Miranda, supra, 384 U.S. at 439, 86 S. Ct. at 1609, 16 L. Ed. 2d at 704. While not incorporated in the New Jersey Constitution, the protection against self-incrimination is embodied within New Jersey law. State v. Nyhammer, 197 N.J. 383, 399, cert. denied, 2 009 U.S. LEXIS 5622, 78 U.S.L.W. (U.S. Oct. 5, 2009); N.J.S.A. 2A:84A-19; N.J.R.E. 503.

Miranda mandates that a person subject to custodial interrogation must be adequately and effectively informed of certain rights. Nyhammer, supra, 197 N.J. at 400. These rights, which must be explicit and proffered prior to interrogation, include the right to remain silent and the right to an attorney, and to have an attorney appointed if the suspect is unable to afford one. The suspect must also be advised that he or she can exercise these rights at any time during the interrogation, even if the suspect initially chooses to waive them. Ibid. (quoting Miranda, supra, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726).

The Miranda rights implicated here are the right to an attorney and to have an attorney appointed if one cannot afford to hire one. If a suspect effectively waives his right to counsel after receiving his or her Miranda warnings, law enforcement officers are free to question him. But if a suspect requests counsel at any time during the interview, he or she is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation.

Questioning authorities are obligated to state this right explicitly. "It is not sufficient to advise a suspect subjected to custodial interrogation only that he or she has a generalized right to an attorney. It is essential to inform the suspect that, if the suspect cannot afford one, an attorney will be provided at State expense." State v. Reed, 133 N.J. 237, 253 (1993). The suspect must be informed that he may request an attorney at any time during custodial interrogation, and further, that if defendant makes such a request, interrogation will be terminated. Ibid.

Authorities are instructed to stop questioning in the event a suspect makes even an ambiguous request for an attorney. Such requests "need not be articulate, clear or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel." Ibid. In New Jersey, an equivocal request for an attorney is to be interpreted in the light most favorable to defendant. State v. Chew, 150 N.J. 30, 63 (1997), overruled on other grounds by State v. Boretsky, 186 N.J. 271 (2006).

Once a suspect invokes his right to an attorney, by making even an ambiguous request for one, police officers are obligated under Miranda to "scrupulously honor" that request. If such obligations are not honored, then any statement or confession made must be suppressed and be deemed inadmissible. Scrupulously honoring a suspect's Miranda rights translates into a termination of the interrogation. Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723; see also State v. Perez, 334 N.J. Super. 296, 302 (App. Div. 2000), certif. denied, 167 N.J. 629 (2001). However, "unless and until a suspect asserts his right to have counsel present following adequate Miranda warnings and waiver, the custodial interrogation may continue." Id. at 302-03. Critical here, if police are unsure whether a suspect is asserting his right to silence, they must either stop the interrogation completely or "ask only questions narrowly directed to determining whether defendant was willing to continue." State v. Johnson, 120 N.J. 263, 284 (1990).

At a Miranda hearing pursuant to N.J.R.E. 104(c), the prosecution bears the burden of proving beyond a reasonable doubt that a defendant's waiver of Miranda rights was made knowingly, voluntarily and intelligently. This requires a much stronger showing than is required under federal law, where the prosecution only needs to show waiver by a preponderance of the evidence. Nyhammer, supra, 197 N.J. 383, n. 9 (citing State v. Presha, 163 N.J. 304, 313 (2000) and Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 522, 93 L. Ed. 2d 473, 485 (1986)).

In his decision, the judge acknowledged that Muhammad proffered a complete and accurate rendition of the Miranda warnings and that defendant understood and waived his rights. The judge focused on that portion of the exchange between Muhammad and defendant where defendant said: "Sir, if I did want a lawyer in here with me how would I be able to get one in here with me?" Muhammad responded: "That's on - that's on you. If you want a lawyer, then we - stop and you're going to get your lawyer." The judge then concluded:

So Detective Muhammed was under an obligation to state to the defendant after he made the 'equivocal' request, for an attorney, in some way communicated again that if he could not afford an attorney, one would be appointed to rep for him. And and had he not said, 'that's on you,' I don't know that I would have as I certainly wouldn't have as much concern, the concern would still be there, but I wouldn't have as much concern because if he just said if you want an attorney, we'll stop. That's one thing. But he said, if you want an attorney, that's on you. That's in contradiction, it seems to me, interpretively, to the statement that an attorney will be appointed to represent you.

So, having not clarified that, which was his obligation once he, in essence misinformed the defendant, I think that I cannot find that the defendant knowingly thereafter waived his right to counsel.

Later, Muhammad said in reference to whether defendant requested a lawyer: "You've go to answer yes or no." Defendant then responded: "I already did." And later, he indicated that he wanted an attorney when he went to court.

We agree that the phrasing "that's on you" would be troublesome if stated in a vacuum without the benefit of reading (and hearing on audio-tape) the entire conversation. We recognize that out of context, the phrase could be considered as compromising the initial administration of accurate Miranda warnings. However, that is not the case here.

After Muhammad answered defendant's question with "that's on you," he followed that statement by informing defendant that if he wanted a lawyer, he was going to get one. Muhammad then when on to remind defendant that this was why he had informed defendant of his right to an attorney earlier, a right that defendant had waived. These statements, in their totality, do not contradict the earlier statement that if defendant could not afford an attorney one would be appointed for him.

In reality, the thrust of defendant's inquiry dealt not with who would pay for an attorney but whether an attorney would be present during this questioning. This is the "station house lawyer" eschewed in Miranda where the Court noted:

If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

This does not mean, as some have suggested, that each police station must have a "station house lawyer" present at all times to advise prisoners.

[Miranda, supra, 384 U.S. 436, 474, 86 S. Ct. 1602, 1628, 16 L. Ed. 2d 694, 724 (1966).]

In State v. Messino, 378 N.J. Super. 559 (App. Div.), certif. denied, 185 N.J. 297 (2005), we found that a suspect asking authorities if they thought he needed a lawyer was not a request for an attorney, ambiguous or otherwise. Id. at 578. More relevant here, the officer in Messano responded to defendant's inquiry by telling him that it "was his call." Id. at 573. As in Messino, defendant was advised on more than one occasion that he had a right to an attorney, and one would be appointed for him if he could not afford one. His temporal inquiry was a request for a lawyer at that time, a request that goes beyond the strictures of Miranda. Muhammad promptly advised that if defendant wanted an attorney, "you're going to get your lawyer," and "If you want to stop at this time then we stop at this time."

Not every mention of an attorney during custodial interrogation constitutes an equivocal request for an attorney. "An equivocal invocation occurs where the suspect's statement or question appears to contemplate an invocation, as opposed to simply seeking a better understanding of the rights." David M. Nissman & Ed Hagen, Law of Confessions 6.25 (2d ed. 1994). Authorities "are not obliged to accept any words or conduct, no matter how ambiguous, as a conclusive indicating that a suspect desire to terminate questioning." State v. Bey, 112 N.J. 123, 136-37 (1988).

In Maglio v. Jago, 580 F.2d 202, 205 (6th Cir. 1978), the court found that "maybe I should have an attorney" was an ambiguous request for counsel. Furthermore, the court in United States v. Clark, 499 F.2d 802, 805 (4th Cir. 1974), found that "I had better talk to a lawyer" was a request for an attorney. In State v. Wright, 97 N.J. 113, 119 (1984), the defendant's ambiguous statement was "I won't sign any more deeds without a lawyer present." This was construed as a request for counsel. Id. at 119. The Supreme Court in Wright stated that after defendant had made the ambiguous request for counsel, "the interrogating agent was under an obligation to clarify the meaning of defendant's remark before proceeding with further questioning," which the officer failed to do. This failure was a factor the Supreme Court considered in determining the defendant's ambiguous request for counsel was not scrupulously honored. Id. at 120.

Muhammad's follow-up statements and inquiries were proper, as he "ask[ed] only questions narrowly directed to determining whether defendant was willing to continue." Johnson, supra, 120 N.J. at 284. Muhammad's statement of "[y]ou've got to answer yes or no," was clearly narrowly targeted at determining whether defendant wanted a lawyer at that time. Defendant's response confirmed that he was not asking for an attorney, as he responded to Muhammad's "do you want a lawyer? No - that's what you're saying," with the statement, "[w]hen I got to court, I guess."

We are satisfied that defendant's temporal inquiry as to an attorney was not an invocation of his right to counsel. We further conclude that the officer properly responded and clarified defendant's statement and defendant waived his right to counsel.

 
Reversed.

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

N.J.R.E. 104(c) provides:

Where by virtue of any rule of law a judge is required in a criminal action to make a preliminary determination as to the admissibility of a statement by the defendant, the judge shall hear and determine the question of its admissibility out of the presence of the jury. In such a hearing the rules of evidence shall apply and the burden of persuasion as to the admissibility of the statement is on the prosecution. If the judge admits the statement the jury shall not be informed of the finding that the statement is admissible but shall be instructed to disregard the statement if it finds that it is not credible. If the judge subsequently determines from all of the evidence that the statement is not admissible, the judge shall take appropriate action.

(continued)

(continued)

2

A-4871-08T4

November 30, 2009