State v. GARY J. PASSARELLI. New Jersey Appellate Division December 17, 2018 How do I tell the police I want a Lawyer in New Jersey once I am arrested

State v. GARY J. PASSARELLI.

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

Facts:

At approximately 4:00 p.m. on May 31, 2013, defendant was taken to the North Plainfield Police Department. He was questioned by Sergeant Michael Nugent and Detective Aaron Lacey from the Hunterdon County Prosecutor’s Office in an interview room that was video and audio-recorded. They advised defendant of his constitutional rights and confirmed he understood them. Defendant then informed the detectives he wanted his lawyer. Defendant gave the names of several lawyers, said that he would not talk to anyone, and wanted to know what happened to Niko. The detectives told defendant he did not have to talk to them, then told defendant that Niko was dead and left the room. The detectives returned and told defendant he was not free to leave because they were conducting an investigative detention. While defendant was alone in the interview room, he damaged the audio equipment recording the interview. He was arrested for causing the damage and put in a holding cell. According to Sergeant Michael Schutta, defendant initiated a discussion, apologizing for the damage and saying he was willing to talk. Schutta advised defendant that he had invoked his right to counsel. Defendant said he wanted to speak to the prosecutor’s office and Schutta relayed defendant’s request to Nugent and Lacey. Defendant told the prosecutor’s officers: “I don’t want a lawyer” and said he “was trying to cover his track.” They read defendant his Miranda1 rights again, informing defendant afterwards that his decision “to waive these rights is not final and you may withdraw your waiver at any time.” Defendant asked to waive his rights.  The officers resumed questioning defendant. Defendant admitted he was at Niko’s home that morning and claimed he was walking out with his laptop computer bag when he saw a man he did not know walking in. Defendant said he was there just to pick up his laptop. The officers informed defendant he was a suspect in the homicide, and they had obtained a search warrant for defendant’s home and pickup truck.

Prior to being informed of the search warrant, defendant and the officers had an exchange regarding defendant’s hospitalization for suicidal thoughts. He concluded that discussion stating: “That’s it, man, that’s a wrap. What time is it?” The discussion continued. Later on, when the detectives suggested that perhaps while defendant was at Niko’s home, they were using Ketamine, Niko turned on defendant, and a scuffle ensued resulting in defendant killing Niko in self-defense. Defendant asked:

1. PASSARELLI: Do you think I should get a lawyer at this point?

DETECTIVE LACEY: He was drinking like a fiend.

1. PASSARELLI: Can I get a lawyer at this point?

DETECTIVE LACEY: That’s up to you. Listen, if you don’t wanna talk to me anymore, I can leave the room.

1. PASSARELLI: I mean, listen, man.

DETECTIVE LACEY: I’m on — here’s the thing though, Gary. I’m on your side.

1. PASSARELLI: If that’s your theory, bro, that’s your theory.

DETECTIVE LACEY: It’s — Gary, I —

1. PASSARELLI: I am not confessing to anything cause I didn’t do anything.

Afterward, defendant continued the interview, admitted he and Niko got into a physical alteration, but maintained he did not kill Niko.

APPELLATE REVIEW OF TRIAL JUDGE

“[O]n appellate review, a trial court’s factual findings in support of granting or denying a motion to suppress must be upheld when ‘those findings are supported by sufficient credible evidence in the record.'” State v. S.S., 229 N.J. 360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). After a testimonial hearing, “appellate courts defer to the trial court’s factual findings because the trial court has the ‘opportunity to hear and see the witnesses and to have the “feel” of the case, which a reviewing court cannot enjoy.'” Ibid. (quoting State v. Elders, 192 N.J. 224, 244 (2007)). An appellate court “should not disturb a trial court’s factual findings unless those findings are ‘so clearly mistaken that the interests of justice demand intervention and correction.'” Ibid. (quoting Gamble, 218 N.J. at 425).

Defendant filed a motion to suppress his statements to the police, arguing the comments “that’s a wrap” and “can I get a lawyer at this point?” were invocations of defendant’s right to remain silent and right to an attorney. The motion court found that the detectives honored defendant’s initial invocation of his right to counsel. The court stated the detectives initially stopped questioning defendant, reminded him of his request to speak to his attorney, and never asked any further questions about the homicide but instead led him to a jail cell. The court held it was defendant who voluntarily reinitiated the questioning by the detectives. The court pointed to the fact that defendant apologized for damaging the audio equipment and confirmed that he understood his rights and was waiving them. The court also rejected defendant’s argument that the Ketamine in defendant’s system had any effect on his ability to provide a knowing, voluntary and intelligent waiver at that time.

The motion court also rejected defendant’s argument that during the interview he re-invoked his right to remain silent a second time. The court denied defendant’s motion to suppress his statements to the detectives.

LEGAL ANALYSIS:  MIRANDA AND AND TELLING THE POLICE YOU WANT A LAWYER AND DONT WANT TO TALK

“The right against self-incrimination is guaranteed by the Fifth Amendment to the United States Constitution and [New Jersey’s] common law, now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503.” S.S., 229 N.J. at 381 (quoting State v. Nyhammer, 197 N.J. 383, 399 (2009)). “[P]olice must adequately and effectively advise an individual of his [or her] right to remain silent, and other rights, before questioning.” Id. at 382. Under the New Jersey privilege against self-incrimination, even a suspect’s ambiguous assertion of the right to remain silent “must be diligently honored.” Ibid. (quoting State v. Bey (Bey II), 112 N.J. 123, 142 (1988)). “Words used by a suspect are not to be viewed in a vacuum, but rather in ‘the full context in which they were spoken.'” Ibid. (quoting State v. Roman, 382 N.J. Super. 44, 64 (App. Div. 2005)).

To determine the voluntariness of a defendant’s confession, a court must look “to the totality of the circumstances to assess whether the waiver of rights was the product of free will or police coercion.” Nyhammer, 197 N.J. at 402. The circumstances a court should consider include a defendant’s “age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved.” Ibid. (quoting State v. Presha, 163 N.J. 304, 313 (2000)).

“If an accused does initiate a conversation after invoking his rights, that conversation may be admissible if the initiation constitutes a knowing, intelligent, and voluntary waiver of the accused’s rights.” State v. Chew, 150 N.J. 30, 61 (1997) (citing Miranda, 384 U.S. at 444). “A suspect ‘initiates’ if he invites conversation on the crimes for which he is being held.” State v. Melendez, 423 N.J. Super. 1, 30 (App. Div. 2011) (citing State v. Fuller, 118 N.J. 75, 82 (1990)).

Here, defendant reinitiated the conversation with Detective Schutta, stating that he no longer wanted an attorney and wanted to speak with the detectives. The detectives re-read defendant’s Miranda rights and advised defendant he could re-invoke those rights at any time. Defendant indicated he understood and proceeded to talk to the detectives about the victim. The detectives scrupulously honored defendant’s invocation of his rights and defendant knowingly and voluntarily waived those rights. See Melendez, 423 N.J. Super. at 30.

The motion court found that the comments “That’s it man. That’s a wrap,” read in their proper context, were about moving the conversation past defendant’s mental health issues and not about invoking his right to remain silent. Defendant’s statements of “Do you think I should get a lawyer at this point?” and “Can I get a lawyer?” are closer to an ambiguous invocation of defendant’s right to counsel. The court applied the proper standard when reviewing these statements under State v. Alston, 204 N.J. 614, 623 (2011). In Alston, where the defendant asked a hypothetical question about getting an attorney and the detective responded “that’s on you,” the Court concluded the defendant’s question was only a question, not an invocation of his rights, and the detective’s response was truthful and accurate. Id. at 626-27. Here, the court reasoned that, as in Alston, defendant was simply asking the detective for his opinion about obtaining an attorney and did not invoke his right to counsel. Detective Lacey’s response was truthful and accurate. Read in the context of the entire statement, where defendant clearly understood his right to remain silent, having invoked that right initially, these later statements were not indicative of an intention to revoke his waiver.

ANALYSIS:

The key to this case is the court’s review of the “the totality of the circumstances to assess whether the waiver of rights was the product of free will or police coercion.” …………The circumstances a court should consider include a defendant’s “age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved.” This is really a factual determination that is case sensitive.  As a result, the court must hear the testimony of the officers and review the actual video of the interrogation.  More importantly, the local police departments must comply with the Attorney General’s directives regarding recording confessions of any and all homicide investigations.