State v. Burris

STEIN, J.,

concurring.

I write separately to express my disagreement with the Court’s conclusion that defendant’s second and third statements were voluntary and therefore properly used for impeachment purposes. In my view, defendant’s second and third statements were not sufficiently voluntary to permit their use at trial for any purpose. However, because I conclude that the use of defendant’s state *539 ments for impeachment purposes constituted harmless error, I join in the judgment of the Court reversing the judgment below.

The Court observes that, under federal constitutional law, the “impeachment exception is strictly limited to situations in which the suppressed statement is trustworthy and reliable in that it was given freely and voluntarily without compelling influences.” Ante at 525, 679 A.2d at 129 (citing Mincey v. Arizona, 437 U.S. 385, 397-98 , 98 S.Ct. 2408, 2416 , 57 L. Ed.2d 290, 303 (1978)). The Court also concludes that our decision in State v. Hartley, 103 N.J. 252 , 511 A.2d 80 (1986), did not eliminate the impeachment exception in New Jersey “that is applicable to statements that are not involuntary as a matter of fact.” Ante at 528, 679 A.2d at 130. Thus, the Court holds that “the presumption of involuntariness assigned by Hartley to any statement obtained in violation of a defendant’s constitutional right does not extend to a statement that was in fact freely and voluntarily given.” Ante at 529, 679 A.2d at 131. Because the Court concludes that defendant’s second and third statements were in fact “voluntary and trustworthy,” it holds that those statements were properly used for impeachment purposes. Ante at 538, 679 A.2d at 136.

The Court’s description of defendant’s statements and the circumstances of her interrogation is incomplete. Defendant gave three taped statements to the police while in custody on the night of April 23 to 24, 1990. The interrogation began shortly before midnight on April 23 and continued until nearly five o’clock in the morning on April 24. At trial, the State introduced defendant’s first statement in its case-in-chief and also used that statement to impeach defendant, but conceded that defendant’s second and third statements were not admissible for substantive purposes because those statements were taken in violation of defendant’s right to counsel and privilege against self-incrimination. That concession was based on the following portion of defendant’s first statement, during which detectives continued to question defendant despite her assertion of the right to counsel, and after which detectives resumed questioning defendant without reinforming her *540 of the rights available to her pursuant to Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L. Ed.2d 694 (1966):

DEFENDANT: Wait you said I could get a lawyer, am I getting blamed for something [ ] I didn’t do.

DET. WRIGHT: Do you want, do you want an attorney. Okay you have the right to an attorney. The time is 12:05 [a.m.] and I’m gonna end this statement at this time. [To Detective Kelly:] Did you have anything you would like to say.

DET. KELLY: No I have nothing, no further questions.

DET. WRIGHT: [To Defendant:] Do you have anything that you would like to say, anything before I end this tape that will help explain what happened tonight.

DEFENDANT: No.

DET. KELLY: [To Detective Wright:] One thing Jeff[.] [To Defendant:] Tina one question okay, your girlfriend, what apartment does she live at.

DEFENDANT: I don’t know the number it’s a blue one, I don’t know the number.

DET. KELLY: Okay no further questions.

DET. WRIGHT: Okay we’re gonna terminate this statement then at 12:05.

The tape recorder was turned off and the detectives left defendant alone in the interrogation room. After a short time, Detective Wright returned to the interrogation room to confront defendant with evidence that indicated that her prior statement to detectives was not truthful. Detective Wright did not reinform defendant of her Miranda rights. Defendant began to cry when Detective Wright confronted her with the evidence indicating that she had lied in her prior statement. She also said that she had not intended to hurt her mother, that her mother’s death was an accident, and that she wanted to tell the truth and resume her statement on tape. The tape was turned on and defendant’s second statement commenced at 12:25 a.m. During that statement, Detective Wright reminded defendant that she had earlier been informed of her Miranda rights and that she had waived those rights. The following colloquy then took place, during which defendant repeatedly expressed a lack of understanding concerning her right to terminate the interrogation and to have an attorney present:

DET. WRIGHT: I want you to understand that [you] still have the right to an attorney and all those other things.

*541 DEFENDANT: Yes, I don’t understand any of this, what’s the difference, you know what I mean, I mean [ — ]

DET. WRIGHT: Well I guess [ — ]

DEFENDANT: If the attorney was, was here right now what would he do just sit here or [ — ]

DET. WRIGHT: Well he, he would have, he would have the opportunity to give you advi[c]e, now I guess, I guess what we have to determine here is you indicated to me off the tape that it is your mother’s car.

DEFENDANT: Mmm-hum.

********

DET. WRIGHT: Now before we go into this further Tina, I want you to understand, that you have a right to an attorney, do you want to get it off your chest now.

DEFENDANT: I don’t really cause, you know what I mean.

DET. WRIGHT: It’s your decision, it’s your decision.

DEFENDANT: When would an attorney be here.

DET.WRIGHT: Excúseme.

DEFENDANT: When would they be here.

DET. WRIGHT: Well that would be up to you to call an attorney of your choice.

DEFENDANT: I only know of one.

DET. WRIGHT: You’re gonna have to speak up because of the tape recorder.

DEFENDANT: Oh I’m sorry.

DET. WRIGHT: You’re aware I’m re-taping this.

DEFENDANT: Yeah.

********

DET. WRIGHT: I can’t advise you not to get an attorney or to get an attorney, all I can tell you is that our interest in this thing is getting to the truth and all we have to go on is a scene, which is a pretty bad scene, you know that. And all we can do is from the physical evidence there is, try to determine how it happened and ah usually we’re right on how it happened based on the, the scientific evidence that’s obtained there and the ah blood stains and all of that kind of stuff. But what ... I’d rather do is have you tell me exactly how it happened. Your mother went to work on Friday correct. You, you can’t, the tape recorder can’t see you shaking your head.

DEFENDANT: Yes, I’m sorry yes.

DET. WRIGHT: Okay you have to speak up. Are you willing to go ahead and do this.

DEFENDANT: I guess yeah.

That statement, defendant’s second, ended at 1:22 a.m. In that statement, defendant claimed that she and her mother had argued *542 and that her mother had fallen. Defendant admitted that she had used her mother’s credit cards and car over the weekend, but she did not confess to killing her mother.

After the second statement ended, defendant was again left alone in the interrogation room. Some time later, detectives learned that the victim had died of a gunshot wound. At approximately 2:10 a.m., Detectives McGough and Price entered the interrogation room and confronted defendant with the newly discovered information about the cause of death. The detectives did not inform defendant again of her Miranda rights. At 4:10 a.m., defendant agreed to make a third tape-recorded statement. In that statement, defendant again attempted to assert her right to counsel and again revealed a lack of understanding concerning the effect of her assertion of that right. The following excerpt is from that statement:

DET. WRIGHT: Now you understand that you have the right to counsel, do I have to go over all that again.

DEFENDANT: Mmm-mmm (negative).

DET. WRIGHT: Is there anything about the rights you don’t understand, about remaining silent and so forth.

DEFENDANT: I still want a lawyer, a lawyer but anyway I’ll do this.

DET. WRIGHT: You’ll give a statement at this time.

DEFENDANT: Yes.

DET. WRIGHT: And eventually you’re gonna use an attorney then.

DEFENDANT: I guess yes.

DET. WRIGHT: I would imagine you would. This is a very serious crime, we’re talking about a homicide here, you know that.

DEFENDANT: Yeah.

In her third statement, defendant claimed that Jay Rodriguez had shot her mother and that defendant had moved the body after the crime. Defendant did not confess to killing her mother. The statement concluded at 4:48 a.m. on April 24.

The trial court concluded that defendant’s second and third statements were voluntary and could therefore be used for impeachment purposes; the Appellate Division reversed on the ground that Hartley, supra, precluded the use of the statements for any purpose. While a reviewing court ordinarily defers to a *543 trial court’s findings of fact, “ ‘the ultimate issue of “voluntariness” is a legal question’ ” requiring independent appellate determination. Arizona v. Fulminante, 499 U.S. 279, 287 , 111 S.Ct. 1246, 1252 , 113 L. Ed.2d 302, 316 (1991) (quoting Miller v. Fenton, 474 U.S. 104, 110 , 106 S.Ct. 445, 449 , 88 L.Ed.2d 405, 411 (1985)); see State v. Tassiello, 39 N.J. 282, 294 , 188 A.2d 406 (1963). With a cursory review of the record, this Court concludes that defendant’s statements were in fact voluntary and trustworthy and not the product of abuse, compulsion, or duress. Ante at 538-39, 679 A.2d at 135-36. I disagree. In New Jersey, the State must prove the admissibility of a defendant’s confession beyond a reasonable doubt. State v. Bey (II), 112 N.J. 123, 134 , 548 A.2d 887 (1988); State v. Miller, 76 N.J. 392, 404-05 , 388 A.2d 218 (1978). Here, the State concedes that that standard of proof protects a defendant from impeachment by “any but the most freely-made statements.” The inquiry concerning whether a defendant’s statement is voluntary is essentially factual:

Every case must turn on its particular facts. In determining the issue of voluntariness, and whether a suspect’s will has been overborne, a court should assess the totality of all the surrounding circumstances. It should consider the characteristics of the suspect and the details of the interrogation. Some of the relevant factors include the suspect’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. A suspect’s previous encounters with the law has been mentioned as an additional relevant factor.

[Miller, supra, 76 N.J. at 402 , 388 A.2d 218 (citation omitted).]

This record reveals that detectives relentlessly questioned defendant from shortly before midnight until nearly five o’clock in the morning. During that interrogation, defendant, a twenty-one-year-old woman with no prior involvement with law enforcement, repeatedly attempted to assert her right to counsel, to no avail. Defendant’s questions and comments concerning her right to counsel — “I don’t understand any of this, what’s the difference,” “If the attorney was ... here right now what would he do just sit here,” and “When would an attorney be here,” — demonstrate her lack of understanding of the constitutional right. The record suggests that, from defendant’s perspective, the assertion of the *544 right to counsel was insignificant. The interrogation did not cease, and apparently would not cease, until the detectives had the answers they wanted.

Under those circumstances, I cannot conclude that defendant’s statements were “the product of [her] free and rational choice.” Greenwald v. Wisconsin, 390 U.S. 519, 521 , 88 S.Ct. 1152, 1154 , 20 L. Ed.2d 77, 80 (1968). “ ‘[T]he blood of the accused is not the only hallmark of an unconstitutional inquisition.’ ” Mincey, supra, 437 U.S. at 401 , 98 S.Ct. at 2418 , 57 L. Ed.2d at 306 (quoting Blackburn v. Alabama, 361 U.S. 199, 206 , 80 S.Ct. 274, 279 , 4 L. Ed.2d 242, 247 (1960)). In my view, defendant’s second and third statements were not sufficiently voluntary to be used at trial for any purpose. See New Jersey v. Portash, 440 U.S. 450, 459 , 99 S.Ct. 1292, 1297 , 59 L. Ed.2d 501, 510 (1979) (barring impeachment use of defendant’s compelled statements); Mincey, supra, 437 U.S. at 401-02 , 98 S.Ct. at 2418 , 57 L. Ed.2d at 306 (holding that statements obtained as result of defendant’s will being overborne “cannot be used in any way against a defendant at his trial”). Unlike the Court, I find it unnecessary to reach the question whether our decision in Hartley, supra, that statements obtained in violation of a defendant’s constitutional rights are presumed involuntary and therefore barred from the State’s case-in-chief, extends to the State’s use of suppressed statements for impeachment purposes. The Court need not reach that question because this defendant’s suppressed statements were involuntary as a matter of fact.

I also conclude that defendant’s second and third statements were not sufficiently trustworthy or reliable to satisfy the limited purposes of the impeachment exception. As the Court observes, see ante at 530, 679 A.2d at 132, a fundamental policy rationale for the exception is that it

leaves defendants free to testify truthfully on their own behalf; they can offer probative and exculpatory evidence to the jury without opening the door to impeachment by carefully avoiding any statements that directly contradict the suppressed evidence. The exception thus generally discourages perjured testimony without discouraging truthful testimony.

*545 [James v. Illinois, 493 U.S. 307, 314 , 110 S.Ct. 648, 652-53 , 107 L. Ed.2d 676, 684 (1990).]

That rationale for the impeachment exception necessarily assumes that the defendant’s suppressed statement is truthful while the defendant’s direct testimony at trial is false. Otherwise, the use of the suppressed statement to impeach the defendant’s trial testimony would neither reveal nor discourage perjured testimony. The Court acknowledges as much when it declares that “[t]he previously suppressed statement must, as a fundamental prerequisite, be trustworthy.” Ante at 533, 679 A.2d at 133.

However, as the Court also acknowledges, critics of the impeachment exception argue that “ ‘[i]f the statements are irreconcilable it may indicate that the prior statement was false rather than the latter, a realistic possibility where the prior statement was made under the subtly coercive circumstances of the station house interrogation.’ ” Ante at 531, 679 A.2d at 132 (quoting State v. Miller, 67 N.J. 229, 241 , 337 A.2d 36 (1975)). Curiously, the Court dismisses that criticism with a bit of circular logic, stating that “[cjoncerns about reliability arising from involuntariness are not present here because a statement that is coerced in fact is not subject to the impeachment exception,” ante at 531, 679 A.2d at 132, and summarily concludes that defendant’s statements were in fact “voluntary and trustworthy.” Ante at 538, 679 A.2d at 136.

In view of the record, however, which plainly indicates that defendant’s suppressed statements were not trustworthy, “[cjoncems about reliability” are particularly significant. In her second statement, defendant claimed that her mother fell down during an argument and that defendant did not strike or push her or cause her to fall; in her third statement, defendant claimed that another person, Jay Rodriguez, shot her mother. Testifying in her own defense at trial, defendant admitted that she, not Rodriguez, shot her mother, but claimed that the shooting was accidental. When confronted on cross-examination with her statement that Rodriguez had shot the victim, defendant conceded that her prior statement had been fabricated. Under those circumstances, the Court’s conclusion that defendant’s suppressed statements were *546 trustworthy is unfounded. In my view, those statements were not sufficiently trustworthy to permit their use at trial for impeachment purposes. See Mincey, supra, 437 U.S. at 397-98 , 98 S.Ct. at 2415 , 57 L. Ed.2d at 303 (“Statements made by a defendant in circumstances violating the strictures of Miranda v. Arizona, supra, are admissible for impeachment if their ‘trustworthiness ... satisfies legal standards.’ ” (quoting Harris v. New York, 401 U.S. 222, 224 , 91 S.Ct. 643, 645 , 28 L. Ed.2d 1, 4 (1971))).

Although I disagree with the Court’s conclusions concerning the voluntariness and reliability of defendant’s second and third statements, I find that the use of those statements at trial was harmless beyond a reasonable doubt, in view of the substantial evidence of defendant’s guilt. See Fulminante, supra, 499 U.S. at 295-302 , 111 S.Ct. at 1257-61 , 113 L. Ed.2d at 322-26 (applying harmless-error analysis to improperly admitted coerced confession); State v. Bohuk, 269 N.J.Super. 581, 595 , 636 A.2d 105 (App.Div.) (same), certif. denied, 136 N.J. 29 , 641 A.2d 1040 , cert. denied, — U.S. -, 115 S.Ct. 183 , 130 L. Ed.2d 117 (1994); State v. Tucker, 265 N.J.Super. 296, 328 , 626 A.2d 1105 (App.Div.1993) (same), aff'd, 137 N.J. 259 , 645 A.2d 111 (1994), cert. denied, — U.S. -, 115 S.Ct. 751 , 130 L. Ed.2d 651 (1995); see also State v. Marshall, 123 N.J. 1, 121 , 586 A.2d 85 (1991) (applying harmless-error analysis to violations of defendant’s constitutional privilege against self-incrimination). Defendant testified at trial that she shot her mother accidentally; the State contended that defendant acted with purpose. Thus, the critical issue in dispute was defendant’s state of mind. The State’s evidence showed that, after the shooting, defendant took her mother’s credit cards and car, went shopping with a friend, and spent a night in a hotel with her boyfriend. Defendant did not seek any help for her mother following the shooting. I also note that defendant’s first statement to detectives, which was properly admitted at trial and used by the State for both substantive and impeachment purposes, contradicted defendant’s direct testimony and itself contained a number of statements by defendant that were readily refuted by other evidence. In that statement, defen *547 dant denied any knowledge of or involvement in the homicide, denied using her mother’s credit cards, and denied driving her mother’s car. Thus, the State’s use for impeachment purposes of defendant’s second and third statements merely provided cumulative evidence that defendant lied to police when questioned about the homicide.

I join in the judgment of the Court reversing the judgment below.

For reversal and remandment — Justices HANDLER, POLLOCK, O’HERN, GARIBALDI and COLEMAN — 5.

For concurrence — Justice STEIN — 1.

For affirmance — None.