# State v. Adams

> Supreme Court of New Jersey · May 11, 1992 · 127 N.J. 438

URL: https://www.frixlaw.com/law-library/cases/9728631

## Case

- **Full name:** State of New Jersey, Plaintiff-Respondent, v. Earl Adams, A/K/A Kahlid, Defendant-Appellant
- **Court:** Supreme Court of New Jersey
- **Decided:** May 11, 1992
- **Citations:** 127 N.J. 438; 605 A.2d 1097; 1992 N.J. LEXIS 367
- **Precedential status:** Published
- **Opinion:** Concurrence by Handler
- **Judges:** Handler
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9728631

## How later opinions describe it (automated extraction)

- finding, where the detective "gave defendant a form to read," "defendant read the first line aloud to demonstrate literacy," and defendant "then read the rest to himself," that defendant's "waiver regarding oral statements was knowing, intelligent, and voluntary"
- discussing the efforts made to clarify that oral statements, like written statements, could be introduced at trial

## Opinion text

HANDLER, J.,
concurring.
The central concern of this appeal is the privilege against self-incrimination.
The Court characterizes defendant’s refusal to give a signed statement as an invocation of the right to silence with respect to written communication and, conversely, it characterizes his willingness to speak as a waiver of his right to silence with respect to oral communication. Ante at 444, 446, 605 A. 2d at 1100, 1101. Having applied those characterizations to defendant’s acts, the Court is able to conclude that defendant selectively invoked his Fifth Amendment right to silence, that is, that he invoked it in part and waived it in part. The Court then determines that the police scrupulously honored defendant’s partial invocation of the right to silence because the interrogation neither sought nor elicited a written statement. Id. at 446, 605 A.2d at 1101. The Court, finding that defendant fully understood his right to remain silent, is finally able to conclude that he knowingly, voluntarily and intelligently waived that part of his right to remain silent relating to oral communica *451 tions when he made an oral statement. Ante at 447-450, 605 A.2d at 1101-1102.
I agree with the Court that defendant was sufficiently advised of his right to remain silent. I believe, however, that defendant initially made an ambiguous invocation of that right, thereby invoking that right in its entirety. I would also find that the police scrupulously honored defendant’s right to silence, that the police clarified the Miranda warning to defendant as they were obligated to do, and that defendant, almost contemporaneously with the invocation of his right to remain silent, spontaneously gave an oral statement.
My differences with the Court revolve around two points. First, I do not believe that the right to remain silent is divisible. To allow the State to fractionalize the right to silence and to permit a defendant to invoke it in part and waive it in part greatly reduces the scope of the privilege against self-incrimination, seriously weakens that fundamental constitutional right, and undermines the efficacy of the Miranda protections. In addition, even if I were to accept the notion that the right against self-incrimination can be divided, I always would require officers confronted with suspects who waive their rights selectively to treat those waivers initially as ambiguous. The Court places heavy emphasis on the officer’s helpful elaborations on the Miranda warnings but it refrains from establishing that bright-line rule at this time.
I
The facts of the case warrant careful recapitulation.
On April 9, 1988, Joseph Beaulieu was shot after an argument over a drug transaction. Adams became a suspect. Accompanied by his mother, he surrendered himself at the Newark police station and was arrested.
The Miranda warnings were recited to Adams. Detective William Thomas then gave defendant a form setting forth the Miranda warnings and a waiver of those rights. On reading *452 the form, defendant wrote above the signature line, “I do not wish to give a statement at this time.”
According to Thomas, defendant stated that he “didn’t want to give a signed statement but he would tell [him] what happened.” Thomas then told defendant that he would incorporate what defendant told him into his report and that he would testify from that report in court. Thomas also described his explanation as “it’s the same, what you tell me is going to be incorporated in my report, going to court.” Thomas testified that in response defendant stated “all right, but I am not going to give you a signed statement” or “I am not going to sign it. I will tell you what happened, I am not going to sign it.”
Defendant went on to give his account of the crime, indicating that the shooting had been in self defense. When Detective Thomas was asked whether he had questioned defendant while defendant was talking, the detective replied, “Somewhat, yes.” Counsel asked defendant’s mother whether she recalled Detective Thomas asking questions about the case and she responded, “My son was telling him about the case.” The trial judge clarified the question for Ms. Adams by asking, “do you recall the detective asking him any specific questions about the case or was your son just talking about the case?” Ms. Adams answered, “He was just talking.” Thomas then asked defendant what had happened to the gun, but when defendant said that “he didn’t want to talk anymore about it” the conversation ended.
II
The Fifth Amendment secures the right of an individual not to “be compelled in any criminal case to be a witness against himself.” U.S. Const, amend V. The privilege protects a “complex of values,” but the centerpiece of the privilege is the right “to remain silent unless [the person] chooses to speak in the unfettered exercise of his [or her] own will.” Malloy v. Hogan, 378 US. 1, 8, 84 S.Ct. 1489, 1493 , 12 L.Ed.2d 653, 659 *453 (1964); see also Miranda v. Arizona, 384 U.S. 436, 460 , 86 S.Ct. 1602, 1620 , 16 L.Ed.2d 694, 715 (1966) (privilege grounded on principle that state should prove its case “by its own independent labors, rather than by the cruel, simple expedient of compelling [evidence] from [the defendant’s] own mouth”). The testimonial nature of the privilege against self incrimination drives the scope of its protections. Thus, “[i]t is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take____” Schmerber v. California, 384 U.S. 757, 763-64 , 86 S.Ct. 1826, 1832 , 16 L.Ed.2d 908, 916 (1966).
The essence of the privilege against self-incrimination is to refrain from testimonial communication. The privilege, characterized as the right to remain silent, extends to any form of communication that is testimonial in nature. Id.; State v. Irving, 114 N.J. 427, 448-51 , 555 A.2d 575 (1989) (Handler, J., dissenting) (notice of alibi is testimonial in nature); In re Grand Jury Proceedings of Guarino, 104 N.J. 218, 244-45 , 516 A.2d 1063 (1986) (Handler, J., dissenting) (the implied admissions involved in the production of certain documents are testimonial in nature). Crucial to the privilege is whether the communication is “testimonial,” not what form the communication happens to take. Hand-written notes, tape recordings, spoken words, physical gestures, and all other forms of communication are protected. It follows that if any communication is expressed in any form, then silence, as a right and as a fact, no longer exists, for the State acquires the ability to use the suspect’s communication to convict.
Because the capacity to incriminate inheres in the testimonial content of the communication — not in its comparative weight or probative worth — it makes no sense to consider testimonial communication in one form to be different from testimonial communication in another for purposes of the privilege against self-incrimination. Silence is broken with equal finality by testimonial communications that are written, made orally, or expressed through conduct or actions. The Court ignores the *454 obvious fact that almost no one would find it acceptable to be convicted on the basis of an oral statement but unacceptable to be convicted on the basis of a written statement. By recognizing a partial invocation of the right to silence that turns solely on the form of the communication, the Court negates the values that inhere in the privilege against self incrimination.
Accordingly, when a suspect invokes the right to silence in any respect, that invocation should be deemed to apply to any and all forms of testimonial communications. Consequently, I believe defendant fully invoked his right to remain silent by writing on the bottom of the form that he did “not wish to give a statement at this time.” Defendant effectively indicated that he did not wish to make a testimonial communication. Further, when defendant indicated to the police officer that he did not want to give a signed statement but would tell him what had happened, he continued to invoke his right to remain silent with respect to any form of testimonial communication.
Ill
Even if I were to accept the notion of partial invocation of the right to silence, I would submit that when a suspect states initially that he or she wishes to invoke the right in part and to waive it in part, that suspect’s wishes always are inherently ambiguous. Therefore, the suspect’s response must be regarded, initially, as a complete invocation of the right to silence. “Any words or conduct that reasonably appear to be inconsistent with defendant's willingness to discuss his [or her] case with the police are tantamount to an invocation of the right against self incrimination.” State v. Bey II, 112 N.J. 123, 136 , 548 A.2d 887 (1988); see also State v. Johnson, 120 N.J. 263, 281 , 576 A.2d 834 (1990) (“ ‘[A]n equivocal indication of a desire to remain silent, like an unequivocal indication, suffices to invoke Miranda!s requirement that the interrogation cease.’ ”) (quoting Christopher v. Florida, 824 F.2d 836, 840-41 (11th Cir.1987), cert. denied, 484 U.S. 1077 , 108 S.Ct. 1057 , 98 *455 L.Ed. 2d 1019 (1988)); State v. Bey I, 112 N.J. 45, 64 , 548 A.2d 846 (1988) (defendant’s request to terminate questioning, “however ambiguous,” must be honored); State v. Bey II, supra, 112 N.J. at 210, 548 A.2d 887 (Handler, J., dissenting) (“Even if the defendant’s expression is viewed as ‘ambiguous,’ it must be considered an assertion of rights.”).
Often, and perhaps more often than not, when a suspect indicates a desire to partially waive the right to silence, that desire will be premised on faulty assumptions about the operations of our laws and our courts. As Justice Brennan noted in Connecticut v. Barrett, 479 U.S. 523 , 107 S.Ct. 828 , 93 L.Ed.2d 920 (1987):
[The] statement to police — that he would talk to them, but allow nothing in writing without counsel — created doubt about whether he actually understood that anything he said could be used against him. In other words, the statement is not, on its face, a knowing and intelligent waiver of the right to silence. As a general matter, I believe that this odd juxtaposition (a willingness to talk and an unwillingness to have anything preserved) militates against finding a knowing or intelligent waiver of the right to silence.
[ 479 U.S. at 532-33 , 107 S.Ct. at 834 , 93 L.Ed.2d at 930 (Brennan, J., concurring). ]
Many intelligent laypersons may erroneously believe that oral statements and promises have no legal effect. I fear that unless the bright-line rule I propose is adopted by the Court, such people may fail to realize that when they think they are invoking their right against self-incrimination they in fact are waiving it. Unless the Court recognizes that all partial waivers of the right to silence are, at least initially, inherently ambiguous, the Court may find that it has fashioned a new legal oxymoron: the ignorant, knowing waiver of Fifth Amendment rights.
I believe that when a suspect initially partially invokes the right against self-incrimination, only two avenues are open to the police. The officer may seek defendant’s clarification of the apparent invocation of the right to remain silent or may terminate the interview. Because the officer necessarily will be unsure as to whether the suspect has invoked his or her right to *456 remain silent in its entirety, the officer may ask questions only if they are designed to clarify the suspect’s intentions. Johnson, supra, 120 N.J. at 283 , 576 A.2d 834 ; State v. Wright, 97 N.J. 113 , 120 n. 4, 477 A.2d 1265 (1984) (police can inquire about the correct interpretation of an ambiguous assertion of the right to remain silent). Only by explaining that oral statements as well as written can be used to convict in a court of law would the goals of Miranda be met. A major purpose of the Miranda warnings — at least that portion noting that any oral or written statements can be used in court — is to apprise suspects of the testimonial effect their statements will have. When a suspect initially invokes his or her right only partially, I never would presume that the suspect has understood that portion of the warning.
IV
In this case, the officer's testimony established that he attempted to clarify defendant’s apparent invocation of the right to remain silent. He explained to defendant that he would incorporate what defendant told him into his report and that he would testify from that report in court. In essence, the officer informed defendant that whether defendant gave a written or an oral statement, the evidence would be used against him in court. That comports with the privilege against self-incrimination; it reflects the purpose of protecting against the involuntary and uninformed disclosure of testimonial communication in any form.
Following the officer’s clarification, defendant made his oral statement. It was not given in response to additional questioning by the officer. Hence, to the extent defendant initially had invoked his right to remain silent, the officer’s clarifying explanation without additional questioning did not breach the right to silence or violate the police officer’s duty to scrupulously honor that right. The subsequent statement by defendant was volunteered, was not in response to additional interrogation, *457 and was made against the backdrop of adequate advice concerning the right to silence. Under the circumstances, defendant’s statements were volunteered and properly admissible. See Miranda, supra, 384 U.S. at 478, 86 S.Ct. at 1630 , 16 L.Ed.2d at 726 (“Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”); Wayne R. LaFave & Jerold H. Israel, 1 Criminal Procedure § 6.7(d), at 514 (1984) (a volunteered statement is admissible when, for example, the defendant walks into a police station and confesses or blurts out an admission; a statement may qualify as “volunteered” even though made in custody or by one who had previously asserted his right to silence).
I therefore concur in the judgment of the Court.
HANDLER, J., concurring in result.
For affirmance — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN-7.
For reversal — None.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9728631. Public record. Not legal advice.