Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
Issue: Post Arrest invocation of right to an Attorney. Was the defendant’s request to speak to his family during an interrogation enough to invoke his right to remain silent? Once you ask to speak to a family member, you have invoked your right to counsel in New Jersey and the police can not record your discussion with that family member!
Held: Because defendant’s statement to his uncle occurred after officers violated his Fifth Amendment right to remain silent, that statement is inadmissible. Defendant’s subsequent statement to police was fruit of the unconstitutionally obtained statement to his uncle and must also be suppressed. Thus, defendant’s convictions for manslaughter and murder are reversed. His other convictions are affirmed because they are supported by evidence independent of the suppressed statements.
In October 2008, after one of defendant’s sisters had tried unsuccessfully to reach their parents, Michael and Kathleen Maltese, she called defendant and the police for assistance. On October 17, 2008, police were informed that the couple was missing and that unauthorized charges had been made to Kathleen Maltese’s bank account. On October 18, 2008, police went to the Maltese residence, where defendant and his girlfriend, Nicole Taylor, resided with defendant’s parents. At that time, police found shovels in the trunk of defendant’s father’s car. That same day, defendant agreed to go to the police station for questioning. After being read his Miranda rights, defendant told police that he had last seen his parents on October 10, 2008 when he dropped them off in Pennsylvania. After additional questioning, he told them that his parents had disappeared and admitted using his mother’s bank card without her permission. The police arrested defendant for obstruction of justice and false swearing, but released him later that day.
On October 24, 2008, defendant returned to the police station for a polygraph test. After being read his Miranda rights, defendant took the test, in which he denied knowing his parents’ whereabouts. After scoring the test, Sergeant (Sgt.) Paul Vallas told defendant that he had no doubt that he knew his parents’ location. Defendant agreed to give a statement, but demanded that he talk to his uncle first. Sgt. Vallas advised him that was not in his best interest, but defendant continued to insist. Sgt. Vallas agreed, but before allowing them to speak, privately informed defendant’s uncle that his nephew had failed the test, that he knew where his parents were, and that although defendant requested that the camera be turned off, the camera would actually be left on. Defendant’s uncle agreed to help with the investigation. When Sgt. Vallas returned to the interview room, defendant asked if the conversation with his uncle would be protected under lawyer-client privilege. Sgt. Vallas replied that his uncle was not an attorney, but told him that he would turn off the camera. Defendant told his uncle that he knew where his parents’ bodies were buried and that one other person was involved. After a short cigarette break, with a detective nearby, defendant returned to the interview room and received Miranda warnings for a second time. He admitted to police that, after a fight with his father on October 8, 2008, he strangled his parents and buried them in the woods behind Friendship Park. Defendant also said that Taylor helped dispose of their bodies. Police found the bodies buried in a shallow grave in Friendship Park.
Defendant moved to suppress his statements to his uncle and police, as well as the evidence collected as a result of those statements. The trial court suppressed the statement to his uncle, but did not exclude his statement to police.Because defendant’s statement to his uncle occurred after officers violated his Fifth Amendment right to remain silent, that statement is inadmissible. Defendant’s subsequent statement to police was fruit of the unconstitutionally obtained statement to his uncle and must also be suppressed. Thus, defendant’s convictions for manslaughter and murder are reversed. His other convictions are affirmed because they are supported by evidence independent of the suppressed statements. On remand, the trial court shall conduct a pretrial hearing to determine whether the physical evidence obtained as a result of defendant’s suppressed statements is admissible under the inevitable discovery exception to the exclusionary rule.
The court ruled:
- The privilege against self-incrimination includes the right of a person to remain silent unless he chooses to speak of his own free will. Efforts by police to persuade a suspect to talk are proper as long as the will of the suspect is not overborne. The inquiry turns on whether an investigator’s statements were so manipulative or coercive that they deprived defendant of his ability to make an autonomous decision to confess. Once a defendant unambiguously invokes his right to remain silent, interrogation must cease. Further, even when the suspect’s invocation is ambiguous, officers are required to stop the interrogation completely, or to ask only questions narrowly directed to determine whether defendant is willing to continue.
Of particular relevance to this matter, in State v. Harvey, 121 N.J. 407 (1990), this Court addressed a situation in which a defendant requested permission to speak with his father. There, the Court held that the defendant’s request was sufficient to invoke his right to remain silent, and therefore required the interrogation to cease. As in Harvey, defendant here indicated that he wanted to speak with a family member to obtain advice before proceeding with questioning. Considering the circumstances, defendant affirmatively asserted his right to remain silent. Therefore, the statement he made to his uncle was obtained in violation of his Fifth Amendment right to remain silent and was properly suppressed by the trial court. (pp. 20-22)
- The United States Supreme Court has concluded that the admissibility of statements obtained after the person in custody has decided to remain silent depends on whether his right to cut off questioning was scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 104 (1975). There, the Court focused on four factors: (1) two hours passed after the defendant first asserted his right to remain silent; (2) the defendant received fresh Miranda warnings before the interrogation resumed; (3) the defendant was questioned by a different police officer; and (4) the defendant was questioned about a different crime. Here, the break in questioning was less than seven minutes, defendant was always in the presence of an officer, and the officers who took defendant’s statement were known by defendant to be conducting the investigation. Additionally, after defendant confessed to his uncle, police made it clear that they knew about that confession. Considering these factors, the statement to police was the fruit of the unconstitutionally obtained statement to his uncle. (pp. 22-27)
- As for whether the admission of defendant’s statement to police constituted harmless error, the Court notes that all of his convictions, with the exception of the convictions for manslaughter and murder, were independently substantiated by evidence other than his statement to police. However, because that statement was particularly relevant to the manslaughter and murder convictions, the Court cannot conclude that the statement’s admission was harmless. Therefore, while his other convictions are affirmed, his manslaughter and murder convictions are reversed and the matter is remanded for retrial. On retrial, the statements may be used for impeachment purposes if defendant chooses to testify.
- Finally, as the record now exists, the State has not met its burden to establish that normal police procedures would have inevitably led to discovery of the bodies. Therefore, on remand, the court must determine whether the physical evidence discovered because of defendant’s statements should also be suppressed.