STATE OF NEW JERSEY v. CHRISTOPHER M DICKERSON

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

CHRISTOPHER M. DICKERSON,

Defendant-Appellant.

________________________________

April 23, 2014

Submitted March 18, 2014 Decided

Before Judges Espinosa, Koblitz and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-08-02725.

Zucker Steinberg Sonstein & Wixted, P.A., attorneys for appellant (Dennis Wixted, of counsel; David W. Sufrin, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After a bench trial, defendant Christopher M. Dickerson appeals from convictions of second-degree sexual contact with a child, N.J.S.A. 2C:14-2(b), and two other charges that were merged into the sexual contact: third-degree endangering the welfare of the same child, N.J.S.A. 2C:24-4(a), and fourth-degree lewdness, for exposing his penis to that child, who was under the age of thirteen, N.J.S.A. 2C:14-4(b)(1). Defendant was sentenced to six years in prison subject to an eighty-five percent parole disqualification. We agree with defendant that his inculpatory statements should not have been admitted into evidence because he did not waive his right to counsel and reverse.

The trial testimony reveals the following. On January 24, 2007, defendant, then eighteen years old, went to the home of D.H.1 (fictitiously Donald) after spending the evening partying with other friends. As Donald was preparing dinner for his two children, K.S. (Kim) and D.H. (David), defendant arrived at the house and asked to use the bathroom and borrow a cellphone to call his father for a ride home. Donald gave defendant his cell phone and permitted him to use the bathroom, which was located upstairs. Both Kim and David, then ages six and four respectively, were upstairs playing a game. Kim later testified at trial that defendant touched her "private part" "below [her] belly" and that she saw defendant's "private part2." After defendant used the bathroom, he walked past Kim's room exposing his penis to the children.

Approximately ten minutes had elapsed since defendant went upstairs to use the bathroom and Donald, now suspicious, yelled upstairs to defendant to see "what was going on" and the children then came downstairs followed by defendant. Donald noticed that the children were visibly upset. Kim told Donald that defendant "did something bad" and "showed us his pee-pee." Defendant admitted that his zipper was broken and that "[his penis] may have been hanging out . . . ." Enraged, Donald chased defendant out of the house. When Donald returned to the house, Kim told him that "not only did he show them his pee-pee, he was touching [me] . . . ." Donald then went back outside, punched defendant and threw him up against a wall by his throat. Donald found the cell phone he lent defendant in Kim's bedroom on the floor next to the child's bed and used it to call the police.

Investigator Amy Pisano, then Amy Jewusiak, of the Camden County Prosecutor's Office conducted a video interview of Kim and David at the police station. These recorded interviews were admitted into evidence and played at trial pursuant to an in limine ruling. During the interview with Kim, she used an anatomically correct doll to show that defendant touched her vaginal area and that defendant's penis was outside of his clothing. David also indicated that defendant touched Kim's private area and used anatomically correct dolls to accurately identify the male and female genitalia as "pee-pee[s]."

Later that night, at approximately 11:45 p.m., defendant gave a statement to Investigator Pisano and Detective Dougherty of the Camden County Prosecutor's Office. Detective Dougherty recorded the interview using a hidden pocket audio recorder without defendant's knowledge. Defendant verbally waived his Miranda3 rights and signed a waiver before the two officers questioned him. Defendant initially denied exposing himself to the children, claiming that Kim saw his penis through his open zipper. After a series of questions, defendant asked for his lawyer in the following exchange:

Pisano: If we brought our statements from the six year old and four year old and from [their father] and what you're saying right now is, didn't happen, who do you think the Judge is going to believe?

Defendant: He'll probably believe them.

Pisano: He's probably going to believe them?

Defendant: Yeah.

Pisano: Okay, and you've been lock, what did you get locked up . . .

Defendant: Cause I always get screwed up for hanging around with the wrong kids, getting caught with weed cause it's their fault, cause they have it on them, you know, I got bad luck, sorry. I mean you can charge me with it, I'll, I'll just go get my lawyer, that's all I want, I want my lawyer . . .

Pisano: Okay, do you want him now?

Defendant: Now, no, I don't want him now, I want to go see him tomorrow.

Pisano: Okay, all right. Do you want to talk to us about this any [] more?

Defendant: Not really.

Pisano: Okay. All right. We'll have you sit down in the other room. Okay?

Defendant: Where's my dad at?

Pisano: I think he probably went home.

Defendant: Why?

Pisano: Because we didn't need him here. We're just talking to you.

Defendant: Well, I don't have a car.

Thereafter, Detective Dougherty told defendant:

We're going to take you in the back, you're not leaving yet . . . we told you that the thing you got to understand is that you're 18 now, okay, and you know you're responsible for your own actions and yourself, and I told your father that I would call him when I know what's going on, and I don't know what's going on right now to be honest with you.

Defendant then stated "Well, I'll still talk to yous [sic], what do you want to know?" to which Detective Dougherty answered "We want to know the truth." Defendant then stated that "maybe my penis was out, yea, sorry, you know, it was . . . a mistake." He admitted that he was "a little buzzed" that night. After initially denying any physical contact with the children, defendant also admitted to touching Kim's inner thigh by "accident." He then stated that "maybe [I] touched her private, but I thought I touched her leg" and that he felt bad enough to apologize to her.

Defendant raises the following issues on appeal:

POINT I: THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MIRANDA SUPPRESSION MOTION.

POINT II: THE TRIAL COURT IMPROPERLY CONSIDERED THE VIDEO-TAPED STATEMENT OF FOUR YEAR OLD D.H.

POINT III: THE TRIAL COURT'S VERDICT WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE AND THE CREDIBILITY OF THE STATE'S WITNESSES.

In reviewing a motion to suppress a statement, we must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record. State v. Knight, 183 N.J. 449, 468 (2005). Although we must defer to fact-findings, we owe no deference to the motion judge's application of law to those facts. State v. Handy, 206 N.J. 39, 45 (2011).

Defendant argues that the trial judge should have suppressed his statements made to police after invoking his right to counsel. He asserts that after his invocation of counsel, investigators asked questions and made comments intended to "bully" him, which caused him to initiate further discussion.

The State argues that the judge properly admitted defendant's admissions because defendant voluntarily reinitiated conversation with the police after an ambiguous invocation of counsel. Because defendant unequivocally invoked his right to counsel and desire to remain silent, all subsequent statements should have been suppressed.

As initially articulated by the United States Supreme Court in Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707, if the accused "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." New Jersey law calls for a "totality of the circumstances framework for determining whether a particular defendant has invoked his or her rights" against self-incrimination and must be looked at through "careful and searching review of all the facts and circumstances surrounding any defendant's interrogation." State v. Diaz-Bridges, 208 N.J. 544, 572 (2012).

Not every reference to a lawyer, however, will require a halt in police questioning. In State v. Messino, 378 N.J. Super. 559, 573 (App. Div.), certif. denied, 185 N.J. 297 (2005), the defendant asked the officer for advice as to whether or not he needed a lawyer. We held that the statement "Maybe I should have an attorney" was not an assertion of a right to counsel but an ambiguous request for advice. Id. at 578.

Recently, in State v. Alston, 204 N.J. 614, 618-22 (2011), our Supreme Court determined that the defendant's statement "Should I not have a lawyer in here with me?" was an ambiguous invocation of counsel. The Court approved the narrowly tailored follow-up questions by police to clarify the defendant's equivocal request for counsel. Id. at 622-23. It is well-settled that when a suspect's invocation of counsel is ambiguous, police are permitted to ask narrowly tailored questions to clarify the meaning of the suspect's words. Id. at 623 (citing State v. Wright, 97 N.J. 113, 120 (1984)). We have noted that through this follow-up questioning the police can ensure that a waiver of a defendant's rights "was given intentionally and voluntarily." State v. Fussell, 174 N.J. Super. 14, 21 (App. Div. 1980). The scope of such questioning is not intended to "operate to delay, confuse or burden the suspect in his assertion of rights." State v. Johnson, 120 N.J. 263, 283 (1980).

Here, defendant stated that "I'll just go get my lawyer, that's all I want, I want my lawyer." This statement was not, as in Alston, an ambiguous request for a lawyer. Nonetheless, the detectives asked the follow-up question "you want him now?" to which defendant responded that he wished to see his lawyer "tomorrow." Defendant anticipated that he would be released to his father and see his lawyer the next day after he had been charged with a crime, as would ordinarily happen in a juvenile arrest. The officers' line of questioning served to persuade him to continue talking. This follow-up questioning was improper in light of defendant's clear statement that he wanted his lawyer. There was no reason for Investigator Pisano to inquire as to when defendant wanted to see his lawyer following the unequivocal statement "I want my lawyer."

A police officer must "'scrupulously honor' the invocation to counsel." State v. Melendez, 423 N.J. Super. 1, 29 (App. Div. 2011). This requires "the interrogating officer to cease all questioning until an attorney is present." Ibid. (citing Edwards v. Arizona, 451 U.S. 477, at 482, 101 S. Ct. 1880, 1883, 68 L. Ed. 2d 378, 384 (1981)). A defendant may waive this right provided the waiver was voluntarily, knowingly and intelligently made. Id. at 30. If, after invoking the right to counsel, the defendant initiates further conversation, "the state must prove that the initiation constituted a 'knowing, intelligent and voluntary waiver beyond a reasonable doubt.'" Ibid. (citing Chew, supra, 150 N.J. at 82).

Our Supreme Court has clearly stated that

[E]ven if a conversation with authorities is initiated by the accused subsequent to his request for counsel, the burden remains on the prosecution to demonstrate that there was, under the totality of the circumstances, a knowing and intelligent waiver of the fifth amendment right to have counsel present during the interrogation.

[Wright, supra, 97 N.J. at 123 (citing Edwards, supra, 451 U.S. at 486 n. 9, 101 S. Ct. at 1885 n.9, 68 L. Ed. 2d at 387 n.9)(emphasis added).]

Applying this totality of the circumstances standard, our Supreme Court explained that in order for a defendant to re-initiate dialog after asking for an attorney, he must make an "inquiry or overture that would demonstrate a desire to discuss the pending charge." Ibid. He must "initiate critical dialog" and "invite further interrogation" with police in order to have validly waived his right to counsel after invoking it. Id. at 126.

Defendant was told he was not going home to which he responded "I'll talk to yous [sic], what do you want to know?" to which police responded "we want to know the truth." There were no questions to determine whether defendant was again waiving his right to counsel. In the totality of these circumstances, defendant reinitiated dialog with officers only after their improper follow-up asking when he wanted his lawyer and telling defendant he could not see his father. Because police did not scrupulously honor defendant's request for counsel, defendant's overture to continue talking does not indicate a waiver of his right to counsel. The State has failed to carry its burden by proof beyond a reasonable doubt that defendant waived his right to counsel immediately after invoking it.

"Waiver will not be implied [simply] from the fact that the defendant incriminated himself after Miranda warnings were given." State v. McCloskey, 90 N.J. 18, 28 (1982). Without any evidence of waiver, it was error for the court to have admitted defendant's statements after he invoked his right to counsel.

Because defendant's statement was improperly admitted, we reverse and remand to the trial judge for reconsideration of the evidence without use of defendant's admissions made after he invoked his right to counsel. Although the judge did not discuss defendant's admissions in her decision, we cannot assume she did not consider those statements in reaching the guilty verdict and therefore cannot conclude the admission of defendant's statement constituted harmless error. Although ordinarily we would remand for a new trial, judges frequently are asked to disregard inadmissible evidence in a bench trial. We see no reason why the trial judge could not do so on remand in this case.

We need not address the remaining issues raised by defendant in any detail. He was acquitted of the charge involving the four-year-old after the judge stated she disregarded the child's video-taped statement. Defendant's claim that the verdict was against the weight of the evidence is without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Initials and fictitious names are used for the father and children to protect the identity of the children.

2 The judge permitted Kim to spell out the words "private part" and "touched" in response to the State's direct examination.

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