State v. Presha

*323 STEIN, J.,

concurring.

I join in the Court’s determination to sustain the admissibility of the defendant’s confession. This record demonstrates that the juvenile defendant had the benefit of a parent’s presence during the critical period before questioning began and while defendant was read his Miranda rights. Also significant is the fact that defendant’s mother left the room voluntarily. However, I believe that the Court errs when it declines to state unequivocally the consequences in future cases of the deliberate exclusion of parents who have not been present at all during their child’s interrogation, and does not acknowledge the obvious connection between the exclusion of parents and the availability of a juvenile’s right to counsel. The adoption of a bright-line rule rendering inadmissible those statements made by a juvenile whose parent has been deliberately excluded by the police from the interrogation room would be consistent with statutes and judicial decisions throughout the country. There should be no uncertainty within our State’s law enforcement community that the same rule will apply in New Jersey’s courts.

I

The critical events of this case occurred in the early hours of the morning of February 27, 1995. Defendant and his mother, Michele Robinson, were at Willingboro police station at about 2:30 a.m. At about 4:00 a.m. defendant was driven to the prosecutor’s office by the police. There, he was placed in a waiting room until his mother arrived. After defendant was informed of and indicated that he understood his constitutional rights, he and his mother signed the Miranda card at about 4:20 a.m. Mrs. Robinson then voluntarily left the interrogation room.

Some time between the time of her departure and 7:39 a.m., when her son made a taped confession, Mrs. Robinson told an officer that she wanted to see her son and that she thought he needed a lawyer. At trial, one of the police officers denied that Mrs. Robinson had made those statements. Rejecting that offi- *324 eer’s version of the relevant events, the trial court specifically found as a fact “that Michele Robinson was direct, truthful and convincing.” The court also found that the police officer, “as to his denial of [Mrs. Robinson’s having made the statements], was evasive, unconvincing and disingenuous.” Nevertheless, the trial court determined that because of defendant’s age, his prior experiences with the police and his decision not to have his mother present during the earlier questioning, his confession was knowing, voluntary and intelligent and therefore admissible into evidence.

II

Courts and legislatures nationwide generally have adopted one of two approaches in deciding whether to admit a minor’s confession obtained subsequent to the deliberate exclusion of a parent. Under the first approach, which most states follow, courts consider the totality of the circumstances. Notably, all courts that have applied that standard to a case in which a parent was deliberately excluded have suppressed the confession.

In People v. Townsend, 33 N.Y.2d 37 , 347 N.Y.S.2d 187 , 300 N.E.2d 722 (1973), the mother of a seventeen-year-old defendant who was being interrogated repeatedly called the police station to determine if her son was there and each time was told that he was not. The defendant confessed to murder, was convicted and appealed. The Court of Appeals reversed his conviction, holding that “it is impermissible for the police to use a confession, even if it be otherwise voluntary, obtained from a seventeen-year-old defendant when, in the course of extracting such confession, they have sealed off the most likely avenue by which the assistance of counsel may reach him by means of deception and trickery.” Id. 347 N.Y.S.2d 187 , 300 N.E.2d at 724 . The Court of Appeals, observing that the police officers’ behavior was “indefensible,” suppressed the inculpatory statements “obtained by the police through tactics calculated to make certain that the defendant’s parents will not take any steps to get him a lawyer.” Id. 347 N.Y.S.2d 187 , 300 N.E.2d at 725 . See also People v. Bevilacqua, 45 W.Y.2d 508, 410 N.Y.S.2d 549 , 382 N.E.2d 1326 (1978) (sup *325 pressing statements made by eighteen-year-old defendant who was “isolated ... from two of his most likely avenues of assistance, his mother and his lawyer,” thereby preventing defendant from getting legal advice before interrogation); People v. Rivera, 78 A.D.2d 556 , 431 N.Y.S.2d 1015 (1980) (suppressing confessions made by juveniles whose parents were denied access thereby “isolat[ing them] from those ready to provide them assistance”).

Illinois courts have determined that where a parent desires to be present during the interrogation of his or her minor child, police officers “have an affirmative duty to inform those actually questioning a juvenile of the parents’ presence and request to see [his or] her child. And, in order to ensure the true voluntariness of a statement, those actually questioning the juvenile have an affirmative duty to stop the questioning and allow the parent to confer with [his or] her child.” People v. Brown, 182 Ill.App.3d 1046 , 131 Ill.Dec. 534 , 538 N.E.2d 909 (1989). See also In re Lashun H., 284 Ill.App.3d 545 , 219 Ill.Dec. 823 , 672 N.E.2d 331 (1996) (suppressing juvenile’s confession where his mother’s attempts to see her son “were clearly frustrated by the police so that they could create an intimidating atmosphere and obtain a confession”); People v. Montanez, 273 Ill.App.3d 844 , 210 Ill.Dec. 295 , 652 N.E.2d 1271 (1995) (same); In re J.O., 231 Ill.App.3d 853 , 173 Ill.Dec. 406 , 596 N.E.2d 1285 (1992) (same); People v. Knox, 186 Ill.App.3d 808 , 134 Ill.Dec. 564 , 542 N.E.2d 910 (1989) (same).

The California Supreme Court, in People v. Burton, 6 Cal.3d 375 , 99 Cal.Rptr. 1 , 491 P.2d 793 (1971), held that the denial by police of a juvenile defendant’s request to see his parent rendered his subsequent confession inadmissible. The court found that the defendant’s “request to see his parents at or near the commencement of interrogation was an invocation of his Fifth Amendment privilege” against self-incrimination. Id. 99 Cal.Rptr. 1 , 491 P.2d at 796 .

Likewise, Florida and Montana have held that a juvenile’s request to telephone or otherwise speak to a parent is tantamount to the invocation of his right to remain silent. Sublette v. State, *326 365 So.2d 775 (Fla.Dist.Ct.App.1978) (holding that juvenile’s request to call parent is assertion of Fifth Amendment privilege against self-incrimination); State v. Johnson, 221 Mont. 503 , 719 P.2d 1248 (1986) (same).

The second approach, which mandates that the State demonstrate that an interested adult was present during an interrogation, has been statutorily adopted in ten states. Those statutes render inadmissible any statement made during interrogation by a juvenile outside the presence of an interested adult and prohibit the waiver of the right to counsel by a juvenile unless that waiver is accompanied by a waiver of a parent or other interested adult. See Colo.Rev.Stat. Ann. § 19-2-511; Ind.Code.Ann. § 31-32-5-1; Iowa Code Ann. § 232.11 ; Miss.Code Ann. § 43-21-311; Mont. Code Ann. § 41-5-331 ; N.H. Stat. Ann. § 169-B:12; N.D. Cent. Code § 27-20-26 ; Okla. Stab. Ann. tit. 10 § 7003-3.7; Tex. Fam. Code Ann. § 51.09 ; W. Va.Code § 49-5-8(d). Those jurisdictions consistently have held that any statements made during custodial interrogation are inadmissible where a juvenile’s parents are absent. People v. J.D., 989 P.2d 762 (Colo.1999) (observing that statute requires notification of parents when juvenile is taken into custody and requires suppression of statements or admissions made by juvenile during custodial interrogation where interested adult is not present); In re L.B., 33 Colo.App. 1 , 513 P.2d 1069, 1070 (1973) (holding inadmissible statements of juvenile made where parent who was incarcerated for drunkenness was brought to juvenile’s interrogation; although interested adult must be present, mere physical presence of parent is insufficient); Lewis v. State, 259 Ind. 431 , 288 N.E.2d 138 (1972) (adopting rule that child may not waive right to counsel until child has had opportunity to consult with interested adult); G.J. v. State, 716 N.E.2d 475 (Ind.App.1999) (recognizing that child has right to have his parents present during custodial interrogation); State v. Walker, 352 N.W.2d 239 (Iowa 1984) (statute implicitly requires that, after notification of parents, police wait before interrogation to allow parents time to come to station and consult with child); M.A.C. v. Harrison County Family Court, 566 So.2d 472 (Miss.1990) (hold *327 ing that deliberate exclusion of parents from child’s interrogation renders statements inadmissible); Ezell v. State, 489 P.2d 781, 783-84 (OMa.Crim.App.1971) (finding that neither mother nor legal guardian of juvenile defendant was “capable of protecting defendant’s constitutional rights,” thereby rendering juvenile’s confession inadmissible); Edward C. v. Collings, 193 Mont 426 , 632 P.2d 325 (1981) (holding that juveniles may not waive counsel unless parent or guardian also waives that right); In re D.S., 263 N.W.2d 114 (N.D.1978) (holding that child must be represented by parent, guardian or counsel during interrogation for statement to be admissible; child’s right to counsel cannot be waived by unrepresented child); Eddings v. State, 842 P.2d 759 (Okla.Crim. App.1992) (holding that statements elicited during custodial interrogation of child are inadmissible unless parents are present); In re L.M., 993 S.W.2d 276 (Tex.App.1999) (holding that juveniles are not permitted to waive privilege against self-incrimination unless friendly adult is present and gives guidance); In re E.T.C., 141 Vt. 375 , 449 A.2d 937 (1982) (interpreting Vermont Constitution to require presence of interested adult during custodial interrogation of juvenile); State ex rel. J.M. v. Taylor, 166 W.Va. 511 , 276 S.E.2d 199 (1981) (holding that juveniles may waive right to counsel only upon advice of counsel). Cf. Sevion v. State, 620 N.E.2d 736 (Ind.App.1993) (finding that seventeen-year-old had opportunity to consult with custodian so statements were admissible); People v. Thomas, 223 A.D.2d 612 , 636 N.Y.S.2d 830 (1996) (finding no evidence that police used deception or trickery to isolate seventeen-year-old defendant from his parents so statement admissible); Hickman v. State, 654 N.E.2d 278, 281 (Ind. App.1995) (declining to exclude statements of almost eighteen-year-old defendant who had opportunity to consult with parent).

Eight other states statutorily require police to notify a minor’s guardian or custodian immediately if a minor is taken into custody. See DelCode Ann. tit. 10 § 1004; Idaho Code § 20-516 ; 705 Ill. Comp. Stat. Ann. § 405/5-405; Mo.Rev.Stat. § 211.131(2); Neb. Rev.Stat. § 43-250; Nev.Rev.Stat. § 62.170; N.Y.Crim. Proc. Law § 140.20 (McKinney); S.C.Code Ann. § 20-7-7205. Statements *328 made by juveniles during custodial interrogation where law enforcement authorities have violated those statutes consistently are suppressed. See People v. Gardner, 257 A.D.2d 675 , 683 N.Y.S.2d 351 (1999) (observing that police are statutorily required to notify immediately guardian or parent of juvenile upon her arrest or statements made are inadmissible); Barrow v. State, 749 A.2d 1230 (Del.2000) (suppressing statements by juvenile -because parental notification statute violated); Palmer v. State, 626 A.2d 1358 (Del.1993) (reversing seventeen-year-old juvenile’s conviction because of police’s failure to timely notify custodian violated mandate of statute and constituted deprivation of defendant’s right to due process and self-incrimination rights); In re D.B., 303 Ill.App.3d 412 , 237 Ill.Dec. 3 , 708 N.E.2d 806, 811 (1999) (noting that purpose of law requiring immediate notification of parents when juvenile taken into custody “is to permit, where possible, a parent to confer with and counsel the juvenile before interrogation and confession”); Brown, supra, 182 Ill.App.3d 1046 , 131 Ill.Dec. 534 , 538 N.E.2d 909 (holding that police’s “flagrant[ ] violation]” of statute requiring officers to make reasonable attempts to notify parents among factors causing court to determine that defendant’s statement was involuntary and therefore should be suppressed); A Minor Boy v. State, 89 Nev. 564 , 517 P.2d 183 (1973) (holding that consequence of deliberate violation of parental notification statute is suppression of statements made by defendant); State v. Johnson, 221 Mont. 503 , 719 P.2d 1248 (1986) (holding that juvenile’s request for parent is invocation of Fifth Amendment rights); Sublette, supra, 365 No.2d 775 (observing that police officers’ failure to comply with statute requiring that parents be immediately notified upon arrest of child renders any statements made by juvenile inadmissible); M.M. v. State, 827 P.2d 1117 (Wyo.1992) (noting that law enforcement officials must comply with parental notification statute for juveniles’ statements to be admissible); MAC. v. Harrison County Family Court, supra, 566 No.2d 472 (finding that police’s blatant violation of juvenile’s statutory right to have parent present during interrogation required exclusion of any statements made). Cf. A Minor Boy v. *329 State, 91 Nev. 456 , 537 P.2d 477 (1975) (finding that mandates of notification statute were satisfied where “all reasonable efforts” were made by police to contact defendant’s mother and not more than one hour could have elapsed before she was contacted and there was “no evidence of any intentional delay in contacting” defendant’s mother); In re Williams, 265 S.C. 295 , 217 S.E.2d 719 (1975) (holding that statements are admissible in absence of showing that parents were not notified in accordance with statute). The courts in those states presumably would also suppress statements made where a parent is deliberately excluded from the juvenile’s interrogation.

New Jersey courts previously have acknowledged the connection between the right of a juvenile to have a parent present during interrogation and the voluntariness of a confession. In In re Carlo, 48 N.J. 224 , 225 A.2d 110 (1966), this Court declared that the “constitutional safeguard of voluntariness” applies to confessions in juvenile proceedings. Id. at 235 , 225 A.2d 110 . There, two boys, age thirteen and fifteen, were arrested and interrogated separately. Id. at 229 , 225 A.2d 110 . After over five hours of questioning, they confessed to killing a young girl. Ibid. All throughout the interrogation the police refused to allow the boys’ parents to see the boys. Id. at 232 , 225 A.2d 110 . Those refusals “evidence[d] to us an approach by the police which rode roughshod over the parent-child relationship in order to obtain confessions by intimidation,” id. at 240 , 225 A.2d 110 , and we observed that the “refusal by the police ... to permit the parents access to their sons during the interrogations might well be sufficient in itself to show that the confessions were involuntary even though, as the police testified, the boys did not wish to see their parents.” Id. at 241 , 225 A.2d 110 .

We revisited the issue of juvenile confessions in In re S.H., 61 N.J. 108 , 293 A.2d 181 (1972), in which the police sent the ten-year-old suspect’s father away from the police station before they began questioning the suspect. Id. at 114 , 293 A.2d 181 . The suspect was then interrogated for ninety minutes after which he *330 confessed to causing the drowning of a six-year-old by pushing him into a canal. Holding that the juvenile’s confession was improperly admitted into evidence, we emphasized that no child should be interviewed except in the presence of his parent or guardian. Id. at 114-15, 293 A.2d 181 . We concluded that the giving of Miranda warnings to a ten-year-old boy “is undoubtedly meaningless” because “[s]uch a boy certainly lacks the capability to fully understand the meaning of his rights.” Id. at 115, 293 A.2d 181 .

A survey of the law of both this State and those other states that have addressed the issue thus reveals a clear consensus favoring protection of juveniles’ rights by requiring the presence and active participation of a parent or guardian during the interrogation of a juvenile.

The Court acknowledges that it finds it “difficult ... to envision prosecutors successfully carrying their burdens in future cases in which there has been some deliberate exclusion of a juvenile’s parents or legal guardian from the interrogation.” Ante at 318, 748 A.2d at 1116. The Court further observes that, applying a totality of the circumstances test, “when there has been a deliberate exclusion of a parent or legal guardian from the interrogation room ..., that confession almost invariably will be suppressed.” Ante at 320, 748 A.2d at 1117. That formulation, however, permits a trial court to conclude under the totality of the circumstances standard that a juvenile’s statements were made voluntarily where the juvenile’s parents have been deliberately excluded from the interrogation of their child. In my view, that lack of clarity is inexplicable in- the context of the consistent rejection by courts throughout the country of statements made where a parent was excluded.

Moreover, the implementation of a bright-line rule that requires the suppression of statements made by a juvenile whose parents have been deliberately excluded from their child’s interrogation would discourage police officers from preventing family contact. Such a rule is clear and practical. It explicitly defines limits *331 within which police officials can work, better protects the rights of New Jersey’s juveniles and decreases the likelihood that the police will attempt to evade that which the law requires.

Ill

The Court also neglects to accord adequate significance to the parents’ role in assisting juveniles to vindicate their constitutional right to counsel. In Gallegos v. Colorado, 370 U.S. 49 , 82 S.Ct. 1209 , 8 L.Ed.2d 325 (1962), the United States Supreme Court noted that in juvenile matters courts deal with “a person who is not equal to the police in knowledge and understanding of the consequence of the questions and answers being recorded and who is unable to know how to protect his own interests or how to get the benefits of his constitutional rights.” Id. at 54 , 82 S.Ct. at 1212-13 , 8 L.Ed.2d at 328 . This is so, the Court stated, because a young boy

cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions. He would have no way of knowing what the consequences of his confession were without advice as to his rights — from someone concerned with securing him those rights — and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself.

[Id. at 54, 82 S.Ct. at 1212-13 , 8 L.Ed.2d at 329 .]

The Supreme Court noted that “[ajdult advice would [] put [a juvenile] on a less unequal footing with interrogators” and that “[without some adult protection against this inequality, a [juvenile] would not be able to know, let alone assert, such constitutional rights as he had.” Ibid.

Parents play a critical role in aiding a juvenile during custodial interrogation. As the majority notes, a parent is “in a position to assist juveniles in understanding their rights, acting intelligently in waiving those rights, and otherwise remaining calm in the face of an interrogation.” Ante at 315, 748 A.2d at 1114 (citing Gallegos, 370 U.S. at 54 , 82 S.Ct. at 1212-13 , 8 L.Ed.2d at 328-29 .) A juvenile “needs counsel and support if he is not to become the victim first of fear, then of panic. He needs someone on whom to *332 lean lest the overpowering presence of the law, as he knows it, crush him.” Haley v. Ohio, 332 U.S. 596, 599-600 , 68 S.Ct. 302, 303 , 92 L.Ed. 224 (1948). The adult advice necessary to put juvenile defendants “on a less unequal footing with [their] interrogators,” Gallegos, supra, 370 U.S. at 54 , 82 S.Ct. at 1212-13 , 8 L.Ed.2d at 329 , typically will come either from the juvenile’s parents or a lawyer. Juveniles would ordinarily be unable to obtain the assistance of counsel without the assistance of their parents.

Even as it acknowledges the critical role that a parent plays in aiding a juvenile during custodial interrogation, however, the Court distinguishes this ease from State v. Reed, 133 N.J. 237 , 627 A.2d 630 (1993), in which we held that where the police deliberately excluded a suspect’s counsel from the interrogation room, the suspect’s waiver of his privilege against self-incrimination was invalid. We based our holding in Reed in large part on the “critical position in our legal system” that a lawyer holds. Id. at 262 , 627 A.2d 630 (quoting Fare v. Michael C., 442 U.S. 707, 719 , 99 S.Ct. 2560, 2568-69 , 61 L.Ed.2d 197, 208-09 (1979)).

In my view, a parent holds an equally “critical position in our legal system,” ibid., a position that is indispensable if a juvenile in custody is to have a realistic opportunity to exercise the right to counsel. A juvenile’s right to the assistance of counsel is hollow indeed unless a parent is present to assist the juvenile in retaining and paying for a lawyer. In that context, the deliberate exclusion of parents from a juvenile’s interrogation room is the de facto equivalent of a denial of the right to counsel.

In People v. Burton, supra, 6 Cal.3d 375 , 99 Cal.Rptr. 1 , 491 P.2d 793 , the California Supreme Court1 best expressed the connection between the right to counsel and the right to have a parent present during interrogation:

It appears to us most likely and most normal that a minor who wants help on how to conduct himself with the police and wishes to indicate that he does not want to proceed without such help would express such desire by requesting to see his parents. For adults, removed from the protective ambit of parental guidance, the desire for help naturally manifests in a request for an attorney. For minors, it would seem that the desire for help naturally manifests in a request for parents.

*333 It would certainly severely restrict the “protective devices” required by Miranda in cases where the suspects are minors if the only call for help which is to be deemed an invocation of the privilege is the call for an attorney. It is fatuous to assume that a minor in custody will be in a position to call an attorney for assistance and it is unrealistic to attribute no significance to his call for help from the only person to whom he normally looks — a parent or guardian.

[Id, 99 Cal.Rptr. 1 , 491 P.2d at 797-98 .]

Although the Court today adopts a per se rule suppressing statements made by those under the age of fourteen whose parents are not present during interrogation, a sixteen-year-old juvenile is hardly in a better position to get counsel than is a thirteen-year-old. In the eyes of a juvenile, the request to consult a parent may be essentially equivalent to a request to consult an attorney. Burton, supra, 6 Cal.3d 375 , 99 Cal.Rptr. 1 , 491 P. 2d 793 . Most juveniles do not know how to engage a lawyer without the assistance of a parent. Juveniles typically have neither the financial wherewithal necessary to retain counsel nor the requisite knowledge of the appropriate steps to take to find a lawyer suitable to their needs. Police tactics that deliberately deprive juveniles of contact with their parents effectively deprive them of their right to counsel. Ibid.; Sublette, supra.

W

The constitutional rights at stake in juvenile interrogations require clear, unambiguous rules to provide the necessary guidance to law enforcement officials. Although I concur in the Court’s judgment, I would hold that in future cases the deliberate exclusion of parents by police officers from a juvenile’s interrogation requires suppression of the juvenile’s incriminating statements to police officers.

For affirmance — Chief Justice PORITZ and Justices O’HERN, GARIBALDI, STEIN, COLEMAN, LONG, and VERNIERO — 7.

Opposed — None.