State v. Harvey

O’HERN, Justice,

concurring and dissenting in part.

I concur in the opinion and judgment of the majority, except to the extent that it invalidates defendant’s confession.

This case is far removed from our recent confession ease of State v. [Walter] Johnson, 120 N.J. 263 , 576 A.2d 834 (1990). In that case the Court found the defendant’s privilege against self-incrimination had been violated, but under circumstances in which “defendant repeatedly responded to questions by saying, *436 T can’t talk about it.’ ” Id. at 284 , 576 A.2d 834 . Such repeated refusals had to create an ambiguity about whether he had thereby expressed a “desire to cut off questioning.” Ibid. We noted that “[d]efendant’s reluctance to answer questions was not confined to an isolated ambiguous remark. He persisted, for well over an hour, in a pattern of prolonged silences and unresponsiveness, refusing to answer any and all questions about the * * * murders.” Id. at 284 , 576 A. 2d 834 . In the face of that kind of record we could conclude only that defendant’s right to remain silent had been violated by the persistent renewal of questioning.

Nonetheless, in this case there is no ambiguity about what defendant said. He quite simply said, “I’ll tell you about the murder, but first I want to see my father.” Defendant’s brief recites that “they stopped talking to him” and arranged for Harvey’s father to be brought to the jail. Although defendant claims that he told his father that he did not commit the murder in question and that he had been struck by the police, there is no evidence that Harvey’s father, much less Harvey, asked that the questioning cease after the father and son had met. It took some time for the police to arrange for defendant’s father to be brought to the station house, but that ought not make the interruption qualitatively different from an interruption for food, rest, or other requests.

Here, as in the fourth-amendment context, there is no “litmus-paper test” of constitutionality. See Florida v. Royer, 460 U.S. 491, 506 , 103 S.Ct. 1319, 1329 , 75 L.Ed.2d 229, 242 (1983). After all, the warnings in State v. Hartley, 103 N.J. 252 , 511 A.2d 80 (1986), do not necessarily guarantee that a constitutional violation will not occur. Were the Hartley admonition all that there were to the constitutional obligation, interrogators might continue to question suspects indefinitely by repeated recitations of the Miranda warnings. Rather, the question is whether the suspect has at least ambiguously invoked his right to remain silent or to request that questioning cease. In that regard, the confession obtained in State v. Bey II, 112 N.J. 123 , *437 548 A.2d 887 (1988), provides guidance. There, the defendant claimed that his request to lie down and “think about what happened” was an invocation of his right to cut off questioning, and that the police failed to “scrupulously honor” his right by resuming interrogation without reissuing a Miranda warning after his one hour of rest. In rejecting defendant’s argument, the Court observed that any reasonable police officer could not have construed the statement as an assertion of his right to remain silent:

Defendant merely communicated his desire to spend some time thinking about the events that were the subject of the interrogation. He did not ask for an attorney or refuse to sign a waiver of his rights. Similarly, he did not refuse to continue the questioning, and did not indicate in any manner that he wanted to end the interrogation. Not every break in questioning compels renewed administration of the Miranda warnings. Otherwise, police would be obliged to administer these warnings each time a defendant requested or was offered something to eat or drink, the use of toilet facilities, the opportunity to stand and stretch, or, as here, time to lie down. [ Id. at 138-39, 548 A.2d 887 .]

Harvey did not ask that questioning should end. A contrasting case is State v. Bey I, 112 N.J. 45, 64 , 548 A. 2d 846 (1988), in which the defendant told the police that “he did not want to talk to [them] about [the victim].” As noted, in this case Harvey specifically told the police that he would tell them about the murder, but first he wanted to see his father. How could the police have concluded in the face of defendant’s willingness to continue testifying after he had seen his father that his request was anything other than what it appeared to be on its face? After all, this was not a case of a single set of warnings and desultory questioning. Recall that this was an evolving investigation into a series of burglaries that occurred in the vicinity of West Windsor; therefore, it was not surprising that the questioning had to continue over an extended period of time.

In short, the defendant never invoked his right to silence in the first place, wherefore Hartley is not triggered. Were I to conclude, as does the majority, that the defendant had requested that questioning cease, I would agree that we would then have to consider the retroactive application of Hartley in lieu of *438 the totality of circumstances test suggested by Justice Stein in his separate opinion.