Petition for Writ of Certiorari — J. A. M., Petitioner v. New Jersey

J

Juan Martinez, (presently confined)

#889536C

South Woods State Prison

215 Burlington Road South

Bridgeton, NJ 08302

1

FILED

JUN 2 8 2019

■SUPREEMEFCTnlfRTL^K

3fn t&e

JUAN MARTINEZ,

(Petitioner-Defendant)

Supreme Court of tfje flHmteb States?

Supreme Court Docket No.

V.

STATE OF NEW JERSEY,

(Respondent-Plaintiff)

PETITION FOR WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF NEW JERSEY, APPELLATE

DIVISION DOCKET NO. A-0928-16T3

PETITION FOR WRIT OF CERTIORARI

J

»

QUESTIONS PRESENTED

1. Did the Appellate Division err by ignoring the fact that

petitioner-defendant was denied his

Fifth Amendment right

to have counsel present during interrogation?

2. Did the Appellate Division err by blindly agreeing with the

law

division

that

"Uhm,

yo puedo,

("Uhm,

can I,

officer

defendant

the

petitioner-defendant's

invocation,

ila corte me puede dar un aboagado a mi?"

the court can give me an attorney?")

stating

"Si."

exclaiming

(Yes).

"Perfecto."

ambiguous request for counsel? (Pa l)1

Petitioner’s appendix

1

Then

the

(Perfect).

The

petitionerWas

an

>

LIST OF THE PARTIES TO THE PROCEEDING

PURSUANT TO RULE 14.1(b)

Pursuant to Supreme Court Rule 14.1(b), Petitioner-defendant

Juan Martinez, certifies that the names of all parties to this

proceeding appear in the caption of this Petition for Writ of

Certiorari.

{

2

TABLE OF CONTENTS

THE QUESTIONS PRESENTED

1

LIST OF PARTIES TO THE PROCEEDING PURSUANT TO RULE 14.1(b)

2

TABLE OF JUDGMENTS, ORDERS AND RULINGS

4

INDEX TO APPENDIX

4

TABLE OF AUTHORITIES

5

BRIEF FOR PETITIONER

6

OPINIONS BELOW

6

JURISDICTION

6

RELEVANT CONSTITUTIONAL AND COMMON LAW PROVISIONS

7

STATEMENT OF THE CASE ....

7

SUMMARY OF ARGUMENT

9

ARGUMENT

BECAUSE THE POLICE INTERROGATORS FAILED TO SCRUPULOUSLY HONOR OR

CLARIFY PETITIONER'S REQUEST FOR AN ATTORNEY, THE LOWER COURT

ERRED BY ADMITTING PETITIONER'S SUBSEQUENT STATEMENT AT TRIAL..9

CONCLUSION

13

CERTIFICATION OF PRO SE PETITIONER

14

APPENDIX

15

/

3

/*

TABLE OF ORDERS, JUDGMENTS AND RULINGS

DOCUMENT NAME

DATE

APPELLATE

DIVISION

DECISION

AFFIRMING THE DENIAL MOTION TO

SUPPRESS STATEMENTS Docket No. A0928-16T3

9/26/2018

SUPREME COURT OF NEW JERSEY ORDER

DENYING

DEFENDANT'S PETITION, FOR

CERTIFICATION

11/13/2018

APPENDIX PAGE(S)

Pa2-PalO

Pall

INDEX TO PETITIONER'S APPENDIX

DOCUMENT/EXHIBIT TITLE OR DESCRIPTION

Excerpt of Transcript of Custodial Interrogation

APPELLATE DIVISION DECISION AFFIRMING THE

DENIAL MOTION TO SUPPRESS' STATEMENTS Docket No.

A-0928-16T3

SUPREME COURT OF NEW JERSEY ORDER DENYING

DEFENDANT’S PETITION FOR CERTIFICATION

STATE OF CONNECTICUT v. ROBERT JOHN PURCELL,

SUPREME COURT DOCKET NO. SC 19980. 203 A.3d 542

(2019)

4

DATE

5/18/2013

9/26/2018

APPENDIX

PAGE

Pal

Pa2-Pal0

11/13/2018

Pall

3/29/2019

Pal2

TABLE OF AUTHORITIES

Constitutions:

United States Constitution, Amendments 5,

passim

New Jersey State Constitution of 1947

.passim

Connecticut State Constitution

6, 13

United States Supreme Court Case Law:

Arizona v. Roberson, 486 U.S. 675 (1988)

11

Davis v. United States, 512 U.S. 452 (1994)

12

Edwards v. Arizona, 451 U.S. 477 (1981)

9

442 U.S. 707 (1979)

9, 10

Fare v. Michael C.,

Michigan v. Mosley, 423 U.S. 96 (1975)

11

Michigan v. Tucker, 417 U.S. 433 (1974)

7

Miranda v. Arizona, 384 U.S. 436 (1966)

7, 10, 11, 12

New Jersey Case Law:

State v. J.A.M., N.J. Supreme Court Docket No. 081903

State v. J.A.M. , N.J. App. Div. Docket No. A-928-16T3,

State v. Chew, 150 N.J. 30 (2012)

(2019)

..6

(2 018) .Passim

12

Connecticut Case Law:

State v. Purcell, 203 A.3d 542 (2019)

5

6, 13

X'

BRIEF FOR PETITIONER

Petitioner Juan Martinez respectfully requests that this Court

reverse the judgment of the New Jersey Superior Court Appellate

Division.

OPINIONS BELOW

The

Opinion

of

Certification

is

the

New

reported,

Jersey

Supreme

but

not

yet

Court

published

denying

State

v.

J.A.M. ,

Docket No.

081903,

but

is

available

in Petitioner's

Appendix

at

Pal.

The

New

Jersey

Superior

Court

Division

opinion,

State

v.

J.A.M. ,

available

in

Petitioner' s

Appendix

is

at

Appellate

unpublished

Pa2.

The

but

New

is

Jersey

Decision is in direct contravention to the Connecticut Supreme

Court's opinion in State v.

Purcell,

203 A. 3d 542

(March 23,

2019)

JURISDICTION

The New Jersey Superior Court Appellate Division rendered its

opinion

on

September

26,

2018,

affirming

the

denial of Petitioner's Motion to suppress his

New Jersey Supreme Court

denying Certification.

Supreme Court Rule 10(b)

issued its

law

division's

statement.

opinion on April

2,

The

2019

This Court has Jurisdiction pursuant to

when a state court of last resort has

decided an important federal question in a way that conflicts

with the decision of another state court of last resort or of a

United States court of appeals.

6

RELEVANT CONSTITUTIONAL AND COMMON LAW PROVISIONS

The Fifth Amendment to the United States Constitution provides

that:

No person shall[...]shall be compelled in

any criminal case to be a witness against

himself, nor be deprived - of life, liberty,

or property, without due process of law[...]

The Miranda doctrine is based upon:

[p]rocedural

safeguards

[that]

were

not

themselves

rights

protected

by

the

Constitution but were instead measures to

insure that the right against compulsory

self-incrimination

wasprotected [...] The

suggested safeguards were not intended to

'create a constitutional

straightjacket,'

but

rather

to

provide

practical

reinforcement

for

the

right

against

compulsory self-incrimination. Michigan v.

Tucker, 417 U.S. 433 (1974).

STATEMENT OF THE CASE

This case concerns the failure of police investigators to

scrupulously honor an unambiguous request for counsel during a

custodial interrogation.

Juan Martinez,

a foreign national who

does not speak or understand English was interviewed by police

concerning

allegations

assaulted them.

by his

daughters

that

The police proffered Mr.

he

had

sexually

Martinez his rights

under Miranda v. Arrizona, 384 U.S. 436 (1966), in Spanish.

"Antes

de

hacerle

comprender sus derechos."

cualquier

pregunta

usted

debe

de

(Before asking you any questions you

should understand your rights.) After being advised that he has

a right to have an attorney present,

attorney one would be provided,

and if he cannot afford an

"Se le nombrara uno para que lo

7

represente o asista antes de hacerle preguntas si usted asi lo

desea.

iEntiende usted este derecho?"

right?)

Mr. Martinez then asked,

puede dar un abogado a mi?"

an attorney?)

The

(Do you understand

"Uhm,

yo puedo,

(Uhm, can I,

"Perfecto"

£la corte me

the court can give me

investigator replied

Martinez exclaimed,

this

"Si."

(yes) .

(emphasis added).

And Mr.

At this point

the investigator should have ceased all questions,

but instead

utilized investigative tactics to keep Mr. Martinez talking.

When a criminal suspect is charged with an offense, and in

a

custodial

court

can

setting

give me

and

specifically

an attorney?"

and

asks,

the

"yes" and the suspect responds "Perfect."

"Uhm,

police

can

I,

the

officer

says

That is a clear and

unambiguous assertion of the right to consult with an attorney

prior

to

any

further questioning.

legitimacy

of

any

proceeding,

rests

judicial

It

proceeding,

is

axiomatic

especially

upon the bedrock principle

of

a

that

the

criminal

fairness.

A

person charged with a criminal offense has the right not to be

compelled in any criminal case to be a witness against himself,

nor

be

deprived

process of law.

of

life,

liberty,

By denying Mr.

or

property,

without

due

Martinez his right to consult

counsel after he specifically asked for one violates his rights

as delineated by the Constitution, Supreme Court precedent,

fundamental fairness.

8

and

SUMMARY OF ARGUMENT

When a suspect unambiguously invokes his right to counsel

during a custodial interrogation,

no matter how informally,

it

is well settled that the interrogation must cease immediately.

That principle was

not

asked

if

the

police

attorney.

not

the

court

could

case

when Petitioner

provide

him

with

an

The trial court, and the appellate division erred by

recognizing

scrupulously

counsel

followed in this

the

honor

during

police

interrogator's

Petitioner's

custodial

assertion

interrogation,

of

when

failure

his

he

right

glossed

to

to

over

Petitioner's answer and continued questioning him.

LEGAL ARGUMENT

BECAUSE THE POLICE INTERROGATORS FAILED TO

SCRUPULOUSLY HONOR OR CLARIFY PETITIONER'S

REQUEST FOR AN ATTORNEY, THE LOWER COURT

ERRED BY ADMITTING PETITIONER'S SUBSEQUENT

STATEMENT AT TRIAL

Thirty-eight

477,

(1981),

this

expressed' his

counsel,

years

ago,

Court

desire

to

in

Edwards

V.

Arizona,

451

U.S.

held

that

"an

accused

[. . . ]

having

deal

with

the

police

only

through

is not subject to further interrogation by authorities,

until counsel has been made available to him, unless the accused

himself

initiates

further

communication,

exchanges,

or

conversations with police," Edwards 451 U.S. at 484.

Edwards

reflected the

Court's

consensus

"that

the

lawyer

occupies a critical position in our legal system," and that the

right

to

have

counsel

"present

9

at

the

interrogation

is

indispensable

privilege,"

to

because

the

protection

of

the

Fifth

"the lawyer's presence helps guard against

overreaching by the police," Fare v. Michael C.,

719 (1979) .

Amendment

442 U. S.

707,

Further, the Court reasoned that counsel's presence

allows the accused "under otherwise compelling circumstances to

tell

his

story without

fear,

effectively,

and

in

a way

that

eliminates the evils in the interrogation process,"

Miranda v.

Arizona,

elucidated,

384

U.S .■ 436,

466

(1966) .

"[o]nee warnings have been given,

clear

[...]

As

the

further

subsequent procedure

If the individual states that he wants an attorney,

the interrogation must cease until an attorney is present.

that time,

is

At

the individual must have the opportunity to confer

with the attorney and to have him present during any subsequent

questioning,"

Miranda

Michael C., 442 U.S.

supra,

707,

719,

at

473-474;

see

also,

Fare

v.

("The court fashioned in Miranda

the rigid rule that an accused's request for an attorney is per

se an invocation of his Fifth Amendment rights,

requiring that

all interrogation cease.")

The

per

se

rule protects

law

enforcement's

interests

as

well as the defendant's, because police know with utter clarity

that once an-accused asserts his right to counsel, the next step

is to end the interrogation until counsel is available,

certainly means

This

that police cannot be unfairly surprised when

they act in contravention to the per se rule and the statement

10

is

suppressed.

requirement

Precedent

that

interrogation

request for an attorney

alike

holds

[...]

that

must

the

cease

"relatively

upon

the

rigid

accused's

benefits the accused and the State

[by} providing clear and unequivocal guidelines to the law

enforcement profession," Arizona v. Roberson, 486 U.S. 675, 68182

(1988) .

As common notions of fundamental fairness dictate,

once a suspect invokes his right to counsel, police officers are

obligated to scrupulously honor that request.

made

it

clear,

that

if

the

invocation

was

This Court has

not

"scrupulously

honored," an inculpatory statement is suppressed notwithstanding

its voluntariness, Michigan v. Mosley, 423 U.S. 96, 104 (1975).

In this case, the Petitioner unambiguously ivoked his right

to counsel.

The interrogating officer,

the Petitioner to initial next

form that said,

be

appointed

Alfredo Beltran,

asked

to a statement on the Miranda

"If you cannot afford to hire a lawyer...one will

to

represent

you

or

assist

you

before

any

questioning,

if you wish."

Petitioner immediately replied by

requesting,

in Spanish,

he be

"Uhm,

you puedo,

that

so appointed an attorney:

ila corte me puede dar un abagado a mi?" The

transcript provides a literal English translation,

"Uhm,

can I,

the

(Pal).

The

officer

provided

an

court

can

confirmed

that

"Si,"

(Pal).

give

the

me

an

attorney?"

Petitioner would be

attorney:

The Petitioner then confirmed that he was invoking

his right to counsel: "Perfecto,'?

11

(Pal).

The trial court and the Appellate Division, both completelymissed the mark by ruling that

"at no point did defendant

ask for an attorney to be provided,"

(2T13-14 to 16).

. . .

In fact,

Petitioner explicitly asked that an attorney - "un abogado"

be

given - "dar"

to him "me...a mi?"

Petitioner's invocation of

his

counsel

rendered

right

to

interrogation

should

inadmissible,

have

because

the

subsequent

Petitioner

was

not

immediately given the opportunity to consult counsel

after he

invoked

doctrine

his

Fifth Amendment

right.

As

the

Miranda

makes clear, once the right to counsel is invoked,

constitutional

status,

and interrogation must

it assumes a

cease;

disregard

of that claimed right violates the Fifth Amendment privilege.

Even if Petitioner's unambiguous assertion that he wanted

"un abogado" to be given "dar" to him "a mi" did not "articulate

his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would understand

the statement to be a request for an attorney," Davis v. United

States,

512

U.S.

452,

459

(1994),

the

statement

still

should

have been suppressed, because Petitioner's interrogators did not

immediately ask petitioner to clarify his desire.

New Jersey

precedent mandates that upon an equivocal request for counsel,

"questioning should cease and the police should inquire of the

suspect

State

v.

about

the

correct

Chew,

150

N. J,

interpretation

30,

63

12

(1997);

of

the

statement,"

See

also

the

recent

decision by the Connecticut Supreme Court, State v. Purcell, 203

A.3d 542 (2019) .

By

ignoring

Petitioner's

request

for

counsel

rather

than

seeking clarification, the police violated his right to counsel.

CONCLUSION

Certiorari is being sought in this matter to address an issue

of

general

Appellate

public

The

have

the

ignored

Law

Division,

the

fundamental

fairness that has been in place for over 4 0 years.

The public

to be able to rely on the

principle

and

of

needs

Division

importance.

system functioning properly,

especially on an issue as basic as

the right to counsel upon

request.

The Petitioner is raising a constitutional challenge

concerning

his

"right

to

be

provided

counsel"

before

being

questioned by the police under the Fifth Amendment to the United

States

Constitution,

(1966) .

This

Constitutional

and

Miranda

Court

right

to

has

be

v.

Arizona,

U. S.

436

interpreted

the

counsel

to

consistently

provided

legal

384.

prior

questioning by the government as one of the paramount guarantees

of the federal Constitution.

Perhaps more importantly,

on

the

occurs,

court

system's

the public needs to be able to rely

ability

to

correct

through the Appellate process.

13

an

error

when

one

The legitimacy of any

judicial

proceeding,

especially a

criminal

proceeding,

rests

upon the bedrock principle of fairness.

CERTIFICATION OF PRO SE PETITIONER

I hereby certify that the petition for certiorari in this

matter presents

a substantial question and is

faith

for

and

not

purposes

of

delay.

I

foregoing statements made by me are true.

any

of

the

foregoing

statements

are

certify

willfully

-A

//

Tuajn Martinez, Pro se

14

that

the

I am aware that if

subject to punishment.

Dated:

filed in good

false,

I

am