Petition for Writ of Certiorari — New Jersey v. Harvey
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IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1990
STATE OF NEW JERSEY,
Petitioner,
Vs
NATHANIEL HARVEY,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF NEW JERSEY
Hon. ALAN A. ROCKOFF*
Middlesex County Prosecutor
State of New Jersey
County Administration Building
New Brunswick, New Jersey 08903
(201) 745-3300
January 1991 *Counsel of Record
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
Supreme Court, U.S.
= aoe
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t ~ ke
A ee a
QUESTION PRESENTED FOR REVIEW
A. Context
Respondent was arrested for a crime unrelated to
the instant, capital murder. During the next 56 hours,
officers eight times recited Miranda warnings, and
respondent was otherwise reminded four times. After
the eighth :epetition, respondent said that he would
describe the killing, but that he initially wanted to
consult his father. The request was honored, and three
hours later, after questioning resumed, respondent
confessed. The officers had not issued a fresh set of
warnings.
The New Jersey Supreme Court suppressed the
confession. It held that respondent had invoked his
right to remain silent by asking to see his father.
Then, it followed an earlier case, allegedly decided on
state grounds, holding that once a suspect invokes
his right to silence, the officers must issue Miranda
warnings before they resume questioning.
B. The Question
Once the New Jersey Supreme Court admits that
the recitation of Miranda warnings will safeguard a
state right, can the court distort Miranda and the
Fifth Amendment, yet evade this Court’s review by
making a naked declaration that an independent and
adequate, state ground supports the state court’s de-
cision?
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ....0..........
Ces CE CORNERED sviiscisccsdemnteoniean
FEDERAL CONSTITUTIONAL PROVISION
SIN VURGN NED snvecanrussratiniisccinenioninnsaeiiaaseaiaicanianae
REASONS FOR GRANTING THE WRIT .........0000.0.
A.
THE NEW JERSEY SUPREME COURT
USURPED THIS COURT’S POWER AND
HANDICAPPED LAW ENFORCEMENT EF-
FORTS IN NEW JERSEY BY REQUIRING PO-
LICE OFFICERS TO ADMINISTER FRESH
MIRANDA WARNINGS TO A SUSPECT IN
CUSTODY WHO HAS PREVIOUSLY IN.
VOKED HIS RIGHT TO REMAIN SILENT ....
THIS COURT CAN NOT ALLOW THE NEW
JERSEY SUPREME COURT TO FLOUT THIS
COURT’S DECISIONS IN FARE V. MICHAEL
C. AND CALIFORNIA V. PATRICK STEVEN
W. AND TO FIND AN INVOCATION OF THE
RIGHT TO REMAIN SILENT WHERE THIS
COURT HAS ALREADY RULED THAT NONE
TEE .c.<ssesnesesovahesnnsnenceuaaahiieaeaenaneentel
. THIS COURT CANNOT ALLOW STATE
COURTS TO DISTORT SETTLED FEDERAL
PRINCIPLES YET ESCAPE THIS COURT’S
REVIEW SIMPLY BY MAKING A NAKED
DECLARATION THAT THE DISTORTION IS
PREDICATED UPON AN INDEPENDENT
AND ADEQUATE, STATE GROUND ..............
th
wal
ill
CONCLUSION ........c0ccsscseccserccsscnccscccecssensessacocsenccsness 19
APPENDICES:
APPENDIX A THE WRITTEN OPINION AND JUDG-
MENT OF THE SUPREME COURT OF
NEW JERSEY, published at 121 N.J.
407 (1990), decided October 18,
a a As liakdnundomiansuneecsaces la
APPENDIX B ORAL DECISION OF THE SUPERIOR
COURT OF NEW JERSEY, LAW DI-
VISION, issued September 17,
BNE i cccecbicsseentnensevessserevcneieutesaesuavsenes 45a
iv
TABLE OF AUTHORITIES
CASES CITED: Page
Barker v. Wingo, 407 U.S. 514 (1972) «0... 12
California v. Patrick Steven W., 443 U.S. 902
COTE asdincnilineesannchinahiicahenaslipaeabeaiacitchieialscaniiitnineatan 6,12,14
Fare v. Michael C., 442 U.S. 707 (1979) ......... 6,12,13,14
In re Patrick W., 84 Cal. App.3d 520, 148 Cal.
ke 14
International Longshoremen’s Association, AFL-CIO
v. Davis, 476 U.S. 380, 388 (1986) ............. 19
Johnson v. Zerbst, 304 U.S. 458, 464 (1938) ......... 8,9,10
Law v. State, 21 Md. App. 18, 318 A.2d 859 (Ct.
Spec. App. SPIE as dsibietisenietad senietelinn baialelaahadionncbnniane 13
Maryland v. Garrison, 480 U.S. 79, 83-84 (1987) . 15
McIntyre v. State, 309 Md. 607, 566 A.2d 30
| LSA SEA Ra es AR Ce OT ae 14
Michigan v. Long, 463 U.S. 1032, 1041 (1988) .. 15,16,17
Michigan v. Mosley, 423 U.S. 96
SUP UNEE. csibiakhciudablch tisdale ulsicedalaan aclibiaiak ideas §,8,9,10,11,12,20
Mincey v. Arizona, 437 U.S. 385 (1978) ................ 13
Miranda v. Arizona, 384 U.S. 436
MIP Lisistiche:caliulnchtnisclgininaaneubtoncaates 3,6,7,8,9,10,16,19,20
New York v. P.J. Video, Inc., 475 U.S. 868, 872
AEs SETI santicokalanienschichcchiectansscbsiatedaiicanccecumneans 15
North Carolina v. Butler, 441 U.S. 369, 376
EUIIOTIEE -adcaiatsenhibeiiaiasdedaticisinanmeladesasbeiceaatanticcncee 6,7,8,12,20
Schneckloth v. Bustamonte, 412 U.S. 218, 235-240
UTNE si cacsubnhdanelchebeaknekenticninth nares makemannanmnmanascaion: 8
State v. Blanchard, 44 N.J. 195, 207 A.2d 681
TIE patiasiiahlincencncnedhardanieelimadseumeaacamaiaameiosmaaiidecsts 18,19
State v. Cooper, i0 N.J. 532, 92 A.2d 786
REPRE SEER ESM pean g OREN OY te USER SUED ATES OES 18
State v. Hartley, 103 N.J. 252, 511 A.2d 80
IEE sstisapacknnchiadenosennaons 5,7,9,10,12,14,15,16,17,18,19
State v. Hernia, 68 N.J.L. 299, 53 A. 85 (E. & A.
NE Ss ecsstieanandeins -asecneatets aie anise ae naaee 18
Table of Authorities Continued
Page
State v. Jordan, 115 N.J. Super 73, 278 A.2d 223
(App. Div. 1971), certif. den. 59 N.J. 2938, 281
Be Ge CHEE \ilitrsitinienasehaens 13
State v. Ordog, 45 N.J. 347, 212 A.2d 370 (1965),
cert. den. 384 U.S. 1022 (1966) ...................08 18
State v. Pierce, 4 N.J. 252, 72 A.2d 318 (1950) ... 18
State v. Reynolds, 41 N.J. 163, 195 A.2d 449 (1963),
cert. den. 377 U.S. 1000 (1964) ................ccc00 18
State v. Tropea, 78 N.J 309, 316, 394 A.2d 355
EIU assis cevieniietisadsanihesaniniccatidnsadennnmmeetananaaitiiaats 17
State v. White, 27 N.J. 158, 142 A.2d 65 (1958) .. 18
State v. Wise, 19 N.J. 59, 99, 115 A.2d 62
RITE sinceupnaiasanndcesnnegiekesetencupsiniehagaueeulinntecauetanns 18
RULES CITED:
Pa. Ss NE BD ineccscddcteceedcccen 5
IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
No. __—
THE STATE OF NEW JERSEY,
Petitioner,
We
NATHANIEL HARVEY,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF NEW JERSEY
Petitioner State of New Jersey prays that a writ
of certiorari issue to review the judgment and opinion
of the New Jersey Supreme Court, entered October
18, 1990.
OPINIONS BELOW
The oral opinion of the Superior Court of New Jer-
sey, Law Division (Nicola, J.S.C), has not been re-
ported, but it is appended as Appendix B. The opinion
of the New Jersey Supreme Court is reported at 121
N.J. 407, 581 A.2d 483 (1990), and is appended as
Appendix A.
JURISDICTION
On October 18, 1990, The New Jersey Supreme
Court reversed respondent’s capital, murder convic-
tion and suppressed his oral confession. We seek
certiorari to review this opinion and, pursuant to Rule
14.1(e\iii), invoke 28 U.S.C. sec. 1257(a) as the source
of this Court’s jurisdiction.
FEDERAL CONSTITUTIONAL PROVISION INVOLVED
UNITED STATES CONSTITUTION, AMENDMENT V.
~No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when
in actual service in time of War or public danger; nor
shall any person be subject for the same offense to
be twice put in jeopardy of life or limb; nor 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; nor shall private property
be taken for publie use, without just compensation.
STATEMENT OF THE CASE
At approximately 2:00 a.m. in the morning on Fath-
er’s Day, June 16, 1985, respondent, carrying a
hatchet (see T10/2/86 at 119), surreptitiously entered
the ground-floor apartment of Irene Schnaps in
Plainsboro. When Schnaps awoke and physically tried
to protect herself and her property, respondent killed
her. At least 15 times he bludgeoned her head with
a hatchet, repeatedly fracturing her skull and break-
ing her jawbone. (T10/1/86 at 138-154). Respondent
next washed Schnaps’ body and changed the bed-
sheets, throwing the bloodied bedsheets in a dumpster
as he escaped undetected. (T10/1/86 at 119). Only a
bloody, Pony-brand, sneaker print, a negroid, pubic
hair, and some small smatters of blood matching
3 .
respondent’s blood type mutely implicated respondent.
(T10/1/86 at 95; T10/7/86 at 123-138; T10/8/86 at 27-
36).
Guided by an expert’s opinion that the murderer
was short (T10/7/86 at 33), Middlesex County officials
began to seek a short, black male wearing Pony
sneakers. This description was also provided to neigh-
boring police agencies, including the West Windsor
Township Police Department. Thus, when at 7:30 a.m.
on October 28, 1985, respondent (a short, black male
wearing Pony sneakers) was arrested in West Wind-
sor on charges unrelated to the Schnaps murder, the
arresting officers notified Plainsboro and Middlesex
County officials. (T9/9/86 at 19; T10/2/86 at 38-39;
T9/11/86 at 136).'
During the next 56 hours, three West Windsor
Township detectives and two Middlesex County de-
tectives read or recited Miranda? warnings to
respondent eight times before questioning him about
the Schnaps murder or the unrelated charges. (T9/
11/86 at 136; T9/9/86 at 38,44-46; T9/12/86 at 106-
107, 182-133; T9/15/86 at 9-11, 13-14, 26). Twice more
they reminded respondent that he had a right to re-
main silent and a right to counsel. (T9/9/86 at 48; T9/
10/86 at 103-104; T9/11/86 at 146; T9/12/86 at 31).
Yet twice more at arraignments two judges told
respondent that he had a right to remain silent and
a right to counsel. (T9/12/86 at 69-70; T9/17/86 at
121).
‘The sneakers which respondent was wearing when he was
arrested could not have made the bloody, sneaker print at
Schnaps’ apartment. (T10/7/86 at 39).
~ 2 Miranda v. Arizona, 384 U.S. 436 (1966)
ee
Respondent, however, did not request counsel nor
did he decline to speak.* Rather, he admitted that he
understood his rights (T9/9/86 at 45-46) and during
the morning of October 30, 1985, admitted killing
Schnaps to Middlesex County Detective Thomas Rizzo.
(T10/2/86 at 115). Respondent then said that he would
describe how he committed the murder, but he ini-
tially wanted to see his father and tell him the news
before he read it in the newspapers. (T10/2/86 at 115-
116). Respondent made this request at 11:00 a.m.
(T9/15/86 at 34).
Not until 2:30 p.m. did respondent leave his father,
at which time the interrogation recommenced. The
officers did not issue another set of Miranda warn-
ings before they took respondent’s informal confes-
sion. (T9/15/86 at 16-21). After respondent described
the murder, the officers administered one last set of
Miranda warnings in anticipation of taking a formal,
tape-recorded statement. This time, respondent said,
“T would like to have a lawyer present while I give
you this statement. There would be no problem with
that.”’ (T9/15/86 at 39-40). The officers immediately
stopped their questioning, which never resumed.
After being indicted for capital murder, respondent
in a timely fashion challenged the admissibility of his
confession. This motion was heard and denied before
a jury was selected. (See App. B). Respondent was
eventually convicted and sentenced to death. 121 N.J.
at 412, 581 A.2d at __ (App. A at 3).
’The second time respondent was questioned, he twice re-
quested time to think. The requests were granted. (T9/9/86 at
45-46, 48).
See n. 8, below.
Deciding respondent’s appeal as of right,° The New
Jersey Supreme Court considered respondent’s claim
that the confession was erroneously admitted. The
court found ‘‘no evidence of police coercion or mis-
conduct” and ‘“‘no extended interrogations designed
to wear down [respondent’s] will.”” 121 N.J. at 418,
581 A.2d at __ (App. A. at 9). The court found that
even if respondent did invoke his right to remain
silent on October 28, 1985 (when he requested time
to think), any failure of the officers to honor that
right did not taint the questioning of October 30,
1985. Id.
Nevertheless, the court reversed the conviction and
invalidated the confession. Preliminarily, the court
held that when he asked to see his father, respondent
invoked his right to remain silent; he ‘‘sought to ter-
minate the interrogation.” 121 N.J. at 420, 581 A.2d
at __ (App. A at 9-10). Next, the court concluded that
the officers erred fatally when they failed to issue
new Miranda warnings before they took the informal
confession. In reaching this decision, the court fol-
lowed State v. Hartley, 103 N.J. 252, 511 A.2d 80
(1986), in which it had held that once a suspect in
custody invokes his right to remain silent, police of-
ficers must administer a fresh set of Miranda warn-
ings before they question him anew. 121 N.J. at 420,
422, 581 A.2d at (App. A. at 1)).
REASONS FOR GRANTING THE WRIT
The New Jersey Supreme Court has handicapped
the efforts of law enforcement officers in New Jersey,
burdening them with obligations which this Court has
5 N.J.Ct.R. 2:2-1(aX3)
never required them to shoulder. The supreme court
has abandoned the totality-of-the-cireumstances test
which this Court has traditionally employed to deter-
mine whether statements are voluntary and has in-
stead reaffirmed its own aberrant, per se rule that
police officers must issue fresh Miranda warnings be-
fore they renew interrogation if a suspect invokes his
right to remain silent. Similarly, the New Jersey
Supreme Court has erroneously concluded that a sus-
pect can exercise his right to silence not merely by
requesting counsel and not even merely by declining
to speak. Rather, according to the supreme court, a
suspect in custody can now exercise his right to si-
lence by requesting to consult a parent.
In the instant case the New Jersey Supreme Court
misread Michigan v. Mosley, 423 U.S. 96 (1975), and
ignored Fare v. Michael C., 442 U.S. 707 (1979), and
‘California v. Patrick Steven W., 443 U.S. 902 (1979).
The resultant, unsanctioned extensions of Miranda
violate this Court’s holding in North Carolina v. But-
ler, 441 U.S. 369, 376 (1979), that ‘‘a state court can
neither add to nor subtract from the mandates of the
United States Constitution.’’ As we shall show, more-
over, the court did not merely misread Mosley, and
ignore Michael C., and Patrick Steven W. It perverted
Miranda.
By granting our petition, this Court can redress
the terrible result reached in this particular case, in
which a capital, murder conviction has been reversed
and the case emasculated. Moreover, by granting our
petition, this Court can corral wayward, state courts
and remind them that this Court alone will define the
parameters of the United States Constitution.
A. THE NEW JERSEY SUPREME COURT USURPED
THIS COURT’S POWER AND HANDICAPPED LAW
ENFORCEMENT EFFORTS IN NEW JERSEY BY RE-
QUIRING POLICE OFFICERS TO ADMINISTER
FRESH MIRANDA WARNINGS TO A SUSPECT IN
CUSTODY WHO HAS PREVIOUSLY INVOKED HIS
RIGHT TO REMAIN SILENT.
This case is North Carolina v. Butler revisited. In
Butler, the North Carolina Supreme Court required
police officers to obtain a specific, oral waiver of the
right to counsel from a suspect before they interro-
gated him. In the instant case, the New Jersey
Supreme Court blindly followed the ‘“ ‘bright-line’
rule” of State v. Hartley and held that “[w]hen a
defendant seeks to terminate an interrogation, the
police must at a minimum give fresh Miranda warn-
ings before recommencing questioning.” 121 N.J. at
420, 422, 581 A.2d at __ (App. A at 11, citation omit-
ted). Only in this way, concluded the court, could
police officers follow Miranda’s requirement that a
suspect’s invocation of his right to remain silent be
“scrupulously honored.” 384 U.S. at 479.
Just as this Court rejected the efforts of the North
Carolina Supreme Court to require a specific type of
waiver, so too must this Court now reject the efforts
of the New Jersey Supreme Court to preclude a
waiver unless police officers readminister Miranda
warnings whenever they commence to reinterrogate
a suspect who has previously invoked his right to
‘ remain silent.* It is time for this Court to remind the
* For the purposes of this portion of our argument only, we
accept the view of the New Jersey Supreme Court that
respondent did invoke his right to remain silent. Otherwise, as
we show in Part B, we reject the claim.
New Jersey Supreme Court that it cannot create an
“inflexible rule that... gofes] beyond the require-
ments of federal organic iaw,’”’ Butler, 441 U.S. at
377, and that this Court, and not the state courts,
will decide what the federal Constitution demands and
permits.
We start at the beginning. In Miranda, this Court
did indeed conclude that police officers must ‘‘scru-
pulously honor[]’’ a suspect’s invocation of his right
to remain silent: this Court ruled that any interro-
gation must cease once a suspect indicates “‘in any
manner that he wishes to remain silent.” 384 U.S.
at 473-474. In Michigan v. Mosley, 423 U.S. 96 (1975),
however, this Court concluded that police officers do
not dishonor a suspect’s invocation of his right to
remain silent if they question him anew after some
time passes. This Court did not specify that police
officers be obligated to wait a certain amount of time,
or that they be obligated to question the suspect about
a different offense, or that they be obligated to ad-
minister a fresh set of Miranda warnings to honor
scrupulously a suspect’s invocation of his right to re-
main silent (although in fact new warnings were re-
cited-to Mosley). Rather, this Court simply evaluated
“the particular facts and circumstances surrounding
[the] case,’ as Johnson v. Zerbst, 304 U.S. 458, 464
(1938), requires, and.decided shat Mosley’s rights were
protected even although he was reinterrogated.
That Zerbst is the standard by which courts are to
judge the voluntariness of a statement is evident. M1-
randa cites it, 384 U.S. at 475, and Butler, 441 U.S.
at 374-375 and Schneckloth v. Bustamonte, 412 U.S.
218, 235-240 (1973), confirm that Zerbst is the stand-
ard to be employed.
Moreover, that Zerbst be the standard is appropri-
ate. After all, the Miranda warnings are not an end
in themselves. Indeed, they are disposable if ‘‘Con-
gress and the States’’ can find equally ‘‘effective ways
of protecting the rights of the individual.’’ 384 U.S.
at 467. See also 384 U.S. at 444 (‘‘[U]nless other fully
effective means are devised to inform [suspects] of
their right to silence ..., the following measures [7.e.,
the warnings] are required.’’). Rather, what concerned
this Court almost a quarter of a century ago and
what continues to concern this Court is the need for
“procedural safeguards,’’ 384 U.S. at 444, which will
tell a suspect what his rights and options are. See
also 384 U.S. at 457 (‘[O]fficers [must] undertake to
‘afford appropriate safeguards at the outset of the
interrogation to insure that [any] statements [are]
97s
truly the product of free choice.”’).
We see then that Miranda is not a labyrinth, de-
signed to entrap the unwary police officer who fails
to trail the proper ball of twine behind him. Miranda
is instead a device intended to help a suspect under-
stand that he need not answer questions, but that he
may if he is willing to face adverse consequences.
The choice is his.
In Hartley, the New Jersey Supreme Court cor-
rectly observed that once Miranda warnings are given
and invoked, continued, unlawful interrogation works
a constitutional violation, rather than a violation of
Miranda’s prophylactic purposes. 103 N.J. at 271-278,
511 A.2d at __. Then, however, forgetting that the
unlawfulness of the continued interrogation is the
question and not the answer, and unable to discern
that no one factor in Mosley rendered continued in-
terrogation unlawful, the court overreacted and re-
10
quired fresh warnings upon re-interrogation if the
suspect previously invoked his right to remain silent.
103 N.J. at 267, 511 A.2d at__.. A rigid rule re-
placed careful thought as the court erroneously cre-
ated a per se test for waivers of federal, constitutional
rights and spurned this Court’s time-tested standard
in Zerbst.
The New Jersey Supreme Court’s per se rule does
not at all help to achieve Miranda’s laudable goal.
After all, if a suspect does not understand rights he
accidentally invokes, repeating those rights will not
help him understand them. Similarly, if a suspect does
understand his rights (and respondent, for example,
said that he did when they were initially read to him),
repeating those rights before reinterrogation will not
help the suspect understand them any better. Indeed,
repeated reminders by police officers that a suspect
need not speak may well dull the value of the warn-
ings. Thus, the supreme court’s per se rule works two
evils: it emphasizes the form of the uttering instead
of the substance of the utterance, and, worse, it re-
moves the very protection which Miranda tried to
guarantee, by taking from a suspect his right to
choose. See Mosley, 423 U.S. at 108-109 (White, J.
concurring).
We surmise that the New tailed Supreme Court
strayed because in its view, whether a suspect’s in-
vocation of his right to remain silent was ‘‘scrupu-
lously honored”’ is an independent question. unrelated
to anything else. In reality, ef course, whether a sus-
pect’s invocation of his right to remain silent was
“scrupulously honored” is not an independent ques-
tion, but is itself comprised of the totality of the
circumstances. Although in any given case some cir-
-—
11
cumstances may outweigh others, their sum total
never changes.
We are suggesting, in essence, that this Court adopt
a balancing test, analogous to the one promulgated
in Barker v. Wingo, 407 U.S. 514 (1972), as a way
to determine whether a suspect’s invocation of his
right to remain silent was scrupulously honored. Un-
der such a standard, for instance, respondent’s being
questioned about the same crime after a hiatus might
less indicate a knowing waiver than Mosley’s being
questioned about the same crime after a hiatus.’ On
the other hand, even if we assume that that distinc-
tion is meaningful, then respondent’s having been
warned formally eight times, reminded twice more,
and warned informally twice more again would easily
more indicate a knowing waiver than Mosley’s having
been warned merely twice. Different routes would
thus bring different judges to the same destination:
admissibility.
In our view, the instant case gives to this Court
the chance to remind state courts that while Mosley
may have been a fact-sensitive decision, it was not
an arbitrary decision. It was not a signai to state
courts to require any reinterrogation to address a
different offense. It was not a signal to state courts
to require police officers to wait a minimal period of
time before they recommence interrogation. Most cer-
tainly, it was not a signal to state courts to require
7We emphasize, incidentally, that even the New Jersey
Supreme Court did not read Mosley to forbid reinterrogation
about the same offense. Rather, only the officers’ failure to
administer fresh Miranda warnings required the suppression of
respondent’s confession.
12
police officers to repeat mindlessly a fresh set of M?-
randa warnings before an eight-time-warned suspect
was reinterrogated.
Mosley gave an inch to the New Jersey Supreme
Court, which immediately took a mile. A reminder to
state courts that they must apply, and not modify,
this Court’s decisions, would help insure that aber-
rations like Hartley, or Butler before it, would dis-
appear.
B. THIS COURT CAN NOT ALLOW THE NEW JERSEY
SUPREME COURT TO FLOUT THIS COURT’S DE-
CISIONS IN FARE v. MICHAEL C. AND CALIFOR-
NIA v. PATRICK STEVEN W. AND TO FIND AN
INVOCATION OF THE RIGHT TO REMAIN SILENT
WHERE THIS COURT HAS ALREADY RULED THAT
NONE EXISTS.
Immediately after respondent admitted committing
the Schnaps murder, he asked to see his father. Spe-
cifically, respondent told Detective Rizzo that
respondent would explain how he killed Schnaps, but
he wanted initially to see his father and tell him the
news before he learned it from the newspapers. The
New Jersey Supreme Court concluded _ that
respondent’s request was an unequivocal invocation
of his right to remain silent. 121 N.J. at 419, 581
A.2d at __ (App. A at 10).* In our view, this decision
> The supreme court never mentioned respondent’s articulated
justification; it merely recited earlier testimony by Rizzo that
‘'respondent] would tell [the officers] about the murder but he
first wanted to speak to his father.’’ (App. A at 7). We would
be less than candid were we to fail to note that Rizzo's ‘‘news-
paper’ testimony was adduced at trial (T10/2/86 at 115-16), while
the statement quoted by the court was uttered at the pre-trial
hearing to determine the admissibility of the confession. (T9/15
13
constituted yet another per se rule which flouts de-
cisions of this Court.
This Court has observed that courts may consider
a suspect’s request to consult a probation officer when
deciding the voluntariness of a confession. Michael C.,
442 U.S. at 724. In the instant case, however, the
New Je-sey Supreme Court found no evidence of
“police coercion or misconduct,” or of ‘‘extended in-
terrogations designed to wear down [respondent’s]
will.”” 121 N.J at 418. 581 A.2d at __ (App. A. at
9). Therefore, the court necessarily viewed
respondent’s request as something which in and of
itself required the officers to cease their questioning.°
This position violates Michael C.
86 at 14). In New Jersey, decisions about the admissibility of
evidence must be based upon the evidence adduced at the pre-
trial hearing, see State v. Jordan, 115 N.J. Super. 73, 278 A.2d
223 (App. Div. 1971), certif. den. 59 N.J. 293, 281 A.2d 806
(1971), but it is clear that in this case the trial court knew from
that evidence the reason for respondent’s desire to tell his father
the news. Thus, Rizzo wrote an investigation report describing
respondent’s wish that his father not discover respondent’s in-
volvement through other sources, and the trial court had this
report, which had been appended to a trial brief. (T9/15/86 at
81). Moreover, defense counsel’s question to Investigator Nelson
Baez presupposes that respondent had a specific reason to see
his father. (T9/15/86 at 66).
In any event, this Court has the right to find facts inde-
pendently. Mincey v. Arizona, 437 U.S. 385 (1978). We are con-
fident that if the need to resolve a factual dispute arises, this
Court will find that respondent’s desire to see his father pre-
cisely reflected his willingness to confess and his certainty that
his confession would be given io the press.
*The court likened this case to Law v. State, 21 Md. App.
13, 318 A.2d 859 (Ct. Spec. App. 1974), in which police officers
badgered a wounded suspect. The court failed to note, however,
14
In Michael C., this Court specifically rejected a
claim that ‘‘a request by a [suspect] to speak with
his probation officer constitutes a per se request to
remain silent.’’ 442 U.S. at 723. Lest respondent
claim, however, that he asked to see his father rather
than a probation officer, we emphasize that this
change in personnel scarcely alters the result. This
Court’s remand in Patrick Steven W. of In re Patrick
W., 84 Cal. App.3d 520, 148 Cal. Reptr.735 (Ct. App.
1978), surely implies, if it does not indeed hold, that
a request to consult a parent (in that case, Patrick
W.’s mother) cannot be a “‘per se request to remain
silent.’’ The supreme court’s distortion must be cor-
rected.?”
C. THIS COURT CANNOT ALLOW STATE COURTS TO
DISTORT SETTLED FEDERAL PRINCIPLES YET
ESCAPE THIS COURT’S REVIEW SIMPLY BY MAK-
ING A NAKED DECLARATION THAT THE DISTOR-
TION IS PREDICATED UPON AN INDEPENDENT
AND ADEQUATE, STATE GROUND.
Before we conclude, we would be remiss were we
not to recognize that State v. Hartley, which supports
that Maryland’s highest court has much more recently specifi-
cally held that a request by a suspect to see a parent is not
per se an invocation of the right to silence. McIntyre v. State,
309 Md. 607, 566 A.2d 30 (1987).
10 While this Court certainly does not need our assurance that
it decided Michael C. or Patrick Steven W. correctly, we note
that the result in the instant case is illogical. Neither New Jersey
law nor federal law privileges what a child tells a parent. Thus,
the New Jersey Supreme Court’s decision has the bizarre effect
of forbidding the police officers to address respondent, but per-
mitting them, as soon as respondent finished his meeting with
his father, to ask respondent’s father what respondent said. Such
a result hardly advances the goals of the Fifth Amendment.
ee
-
15
the instant decision, purports to invoke state law in-
dependently. As we shall show, no independent, state
law supports Hartley, and this Court is free to review
and reverse this injustice.
In Michigan v. Long, 463 U.S. 1082, 1041 (1983),
this Court told state courts precisely how to avoid
this Court’s review: a state court should ‘‘make clear
by a plain statement in its judgment or opinion that
[any cited] federal cases are being used only for the
purpose of guidance and do not themselves compel
the result that the court has reached.’’ Moreover, this
Court promised “not [to] undertake to review the
{state court’s}] decision” if that decision “indicates
clearly and expressly that it is alternatively based on
bona fide separate, adequate, and independent
grounds.” Id.
Since Long, this Court has kept its promise. In not
one case has this Court acknowledged the existence
of the requisite, ‘‘plain statement’’ only to ignore it.
Rather, this Court has specifically emphasized the ab-
sence of the “plain statement’’ when it has rejected
a claim that the state court decision rests upon an
adequate and independent, state ground. E.g., Mary-
land v. Garrison, 480 U.S. 79, 83-84 (1987); New York
v. P.J. Video, Inc., 475 U.S. 868, 872 n.4 (1986).
Nevertheless, this Court in Long surely did not
mean to instruct state courts how to evade this
Court’s review. Surely, this Court did not intend the
pronouncement of the ‘‘plain statement’’ to be an
incantation which wouid preclude this Court’s review
even if the “plain statement’ were untrue. Surely,
this Court was signaling its intention to honor the
“plain statement”’ only if it was “‘bona fide,’’ and in
the instant case it was not. In the instant case, the
ee
16
New Jersey Supreme Court has perverted purely fed-
eral principles, certain that it has previously uttered
the incantation correctly. It has not.
The New Jersey Supreme Court did not explain
why it concluded that respondent’s confession must
be suppressed. Rather, it held initially that
respondent’s request to see his father was an une-
quivocal invocation of his right to remain silent Then,
the court simply followed the ‘bright-line’ rule’ of
Hartley, and held that “‘[w]hen a defendant seeks to
terminate an interrogation, the police must at a min-
imum give fresh Miranda warnings before recomm-
encing questioning.” 121 N.J. at 420, 581 A.2d
at __ (App. A at 11, citation omitted).
The New Jersey Supreme Court recognized that
Hartley’s ‘‘ ‘bright-line’ minimum requirement of re-
newed warnings,” 103 N.J. at 268, 511 A.2d
at __, distorted a federal principle. Jd., at 284-285,
511 A.2d at __. Indeed, the court even ‘‘acknowl-
edge[d] that it may be wrong.”’ Jd. at 285, 511 A.2d
at __. Consequently, the court alternatively resolved
“to settle [the question] as a matter of state law.”
Id. Heeding this Court’s admonition to state courts
in Long, the court “‘expressly”’ decided that New Jer-
sey’s common law required ‘‘authorities [to] cease in-
terrogation of a suspect on his request and [not to]
resume until a new set of [Miranda] warnings has
been given.” 103 N.J. at 284-287, 511 A.2d at __ ."
'! We would not want our interpolation of Miranda in brackets
to lead this Court to wonder whether the New Jersey Supreme
Court contemplated some state variant instead of the warnings
required by this Court in Miranda. The court in the instant case
twice explained that Hartley specified Miranda warnings. 121
N.J. at 420, 422, 581 A.2d at___. (App. A at 11, 12).
ee
17
The threshold issue is thus clear. If indeed the in-
stant reversal is garbed in an independent and ade-
quate, state ground, then this Court has no
jurisdiction. If, however, only a naked claim of an
independent and adequate, state ground underlies this
reversal, then the pertinent law is federal, and this
Court has jurisdiction.
We suggest that the emperor is wearing no clothes;
that Hartley’s articulated, independent and adequate,
state ground is merely a pretext designed to insulate
from federal review the court’s distortion of a purely
federal issue. As we shall show, the purportedly in-
dependent and adequate, state ground ‘is so closely
“interwoven with the federal law,’’ Long, 463 U.S.
at 1040, as to present only a federal question.
Preliminarily, we pause to note that the New Jersey
Supreme Court can require police officers to issue
Miranda-type warnings as a matter of state law. The
court could find the justification for that requirement
in, for example, the state’s common law or in some
notion of fundamental fairness. See, e.g., State v. Tro-
pea, 78 N.J. 309, 316, 394 A.2d 355 (1978). The court,
however, has yet to require independently based, M1-
randa-type warnings. Rather, the court’s proclama-
tions to the contrary notwithstanding, the court simply
incorporated into its common law this Court’s decision
in Miranda and then improperly twisted it.
The New Jersey Supreme Court in Hartley admit-
ted that the case involved federai law: it specifically
noted that its decision ‘“‘implicated”’ ‘‘federal-consti-
tutional rights.’’ 103 N.J. at 286, 511 A.2d at__.
Indeed, the court in the instant case noted that Har-
tley was decided ‘’primarily’”’ upon federal, consti-
tutional law, 121 N.J. at 423, 581 A.2d at __ (App.
a
18
A at 14), and applied only federal principles of re-
troactivity to demonstrate why Hartley should govern
the instant case. 121 N.J. at 422-423, 581 A.2d at _
(App. A at 18).!* Plainly, the court cannot by the
pronouncement of any formula forbid this Court to
review the court’s resolution of the federal issue con-
cededly in the case.
Moreover, the court’s efforts to wrap its conclusion
in the mantle of state, common law cannot prevail.
The privilege against self-incrimination may well have
been ‘‘an integral thread in the fabric of New Jersey
common law since our beginnings as a state,’ 103
N.J. at 286, 511 A.2d at __, but issuing Miranda-
type warnings has never been a part of the privilege.
Rather, the common-law rule in New Jersey had long
been that police officers were not obligated to issue
Miranda-type warnings, and the failure of police of-
ficers to issue such warnings did not render confes-
sions inadmissible. State v. Ordog, 45 N.J. 347, 212
A.2d 370 (1965), cert. den. 384 U.S. 1022 (1966); State
v. Blanchard, 44 N.J. 195, 207 A.2d 681 (1965); State
v. Reynolds, 41 N.J. 163, 195 A.2d 449 (1963), cert.
den. 377 U.S. 1000 (1964); State v. White, 27 N.J.
158, 142 A.2d 65 (1958); State v. Wise 19 N.J. 59,
99, 115 A.2d 62 (1955); State v. Cooper, 10 N.J. 532,
92 A.2d 786 (1952); State v. Pierce, 4 N.J. 252, 72
A.2d 318 (1950); State v. Hernia, 68 N.J.L. 299, 53
A. 85 (E. & A. 1902). Indeed, the New Jersey
Supreme Court’s resolve to follow this aspect of the
common law was so firm that in Blanchard the court
enunciated an unwillingness to abandon the rule ‘“‘in
2 The irony of applying federal, retroactivity analysis did not
escape Justice Stein. See 121 N.J. at 439-440, 581 A.2d
at ___ (Stein, J., dissenting in part) (App. A at 31-32).
sneer a
19
the absence of a clear expression to the contrary”’ by
this Court. 44 N.J. at 209, 207 A.2d at___. This
clear expression, of course, came in Miranda.
We thus see that the particular bolt of the common
law examined in Hartley was actually woven from a
federal thread. Such an observation should scarcely
be surprising, because even the supreme court con-
ceded that federal precedents served as the loom upon
which the fabric of the state’s common law of self-
incrimination was woven. 103 N.J. at 286, 511 A.2d
at. (‘The voluntariness of confessions has con-
sistently been tested in this state under common-law
principles, albeit principles often exparded or altered
in response to federal constitutiona! decisions.”’).
The instant case plainly demonstrates that Har-
tley’s reliance upon an independent and adequate,
state ground is a sham. The court suppressed the
confession in the instant case because Hartley re-
quires police officers to administer ‘“‘fresh Miranda
warnings before recommencing questioning.”’ 121 N.J.
at 420, 581 A.2d at__ (App. A at 11). Miranda
warnings, however, have only one source: this Court’s
interpretation of the Fifth Amendment. Because the
New Jersey Supreme Court has admitted that the
administration of these federal-constitutionally re-
quired warnings will safeguard the state’s common-
law right against self-incrimination, no independent
and adequate, state ground supports Hartley or the
instant reversal. International Longshoremen’s Asso-
ciation, AFL-CIO v. Davis, 476 U.S. 380, 388 (1986).
CONCLUSION
The societally counterproductive results of Har-
tley’s inflexible rule are nowhere clearer than in the
20
instant case. Something is fundamentally wrong when
eight complete recitations of Miranda warnings, two
more reminders by police officers, and two explana-
tions by judges at arraignments of the right to counsel
and the right to silence have been deemed as a matter
of law insufficient to enable respondent to know and
assess his constitutional rights, notwithstanding the
conceded absence of physical and psychological pres-
sures. Such a legal inability to waive the right to
remain silent was rejected in Butler, and surely can-
not be what Miranda and Mosley envisioned.
This Court, we are confident, recognizes that the
New Jersey Supreme Court, in its efforts to suppress
this vicious murderer’s freely given confession,
spurned this Court’s holdings and endeavored to alter
federal, constitutional law, all the while pretending to
clothe its decision in the material of state law. We
urge this Court to grant certiorari, restore the
confession, and remind the New Jersey Supreme
Court that this Court alone will interpret federal, con-
stitutional requirements.
Respectfully submitted,
Hon. ALAN A. ROCKOFF*
Middlesex County Prosecutor
State of New Jersey
County Administration Building
New Brunswick, New Jersey 08903
(201) 745-3300
January 1991 *Counsel of Record
APPENDIX
“4
e
la
~APPENDIX A
NEW JERSEY SUPREME COURT
A-85
[121 N.J. 407]
STATE OF NEW JERSEY,
Plaintiff-Respondent,
Vv.
NATHANIFL HARVEY,
Defendant-A ppellant.
Argued March 27, 1990—Decided October 18, 1990
Edward A. Kopelson and Robert D. Westreich, Des-
ignated Counsel, argued the cause for appellant
(Thomas S. Smith, Jr., Acting Public Defender,
attorney).
Lisa Sarnoff Gochman, Deputy Attorney General, ar-
gued the cause for respondent (Robert J. Del Tufo,
Attorney General of New Jersey, attorney).
The opinion of the Court was delivered by CLIFFORD, J.
Defendant, Nathaniel Harvey, appeals from a capital-
murder conviction and death sentence. Because the trial
court’s jury instructions at the guilt phase did not comply
with our later holding in State v. Gerald, 113 N.J. 40
(1988), we reverse the conviction and remand for a new
trial.
I
a =e
After Irene Schnaps failed to appear for work on June
17, 1985, a colleague went to her apartment at the Hunt-
2a
er’s Glen complex in Plainsboro. When no one answered,
he entered through the unlocked door and found Schnaps
dead on the bedroom floor. She had suffered severe head
and facial wounds.
The police found an empty box for a Seiko LaSalle watch
on the dressing table in the bedroom. An empty camera
box was in the closet, and an open purse sat atop the
vanity in the bathroom. A pillowcase had a bloody sneaker
print bearing a chevron design and the letters ‘‘PON.”
There were no signs of forced entry; the sliding glass door
was closed but unlocked.
Dr. Martin Shuster performed an autopsy. He concluded
that Schnaps had suffered numerous skull fractures, a frac-
tured jaw, and a deep laceration on her skull. Dr. Shuster
believed that she had been struck at least fifteen times
with a blunt object. Pressure applied to her neck for an
hour had caused contusions. In Dr. Schuster’s opinion, a
brief interval separated the first blow and death. He could
not determine which blows had been fatal and which had
been inflicted after the victim’s death.
2.
On October 28, 1985, the police arrested defendant on
suspicion of kidnapping and burglary. Following several
interrogations over the next three days, defendant admit-
ted that he had killed Irene Schnaps. He said that on June
16 he had gone to the Hunter’s Glen apartment complex.
Entering Schnaps’ apartment through an unlocked patio
door, he went into the bedroom, where he took a watch
and some jewelry from the dresser. Schnaps, who had been
sleeping, woke up and punched him in the nose, causing
it to bleed. Defendant then struck her in the head with a
‘“‘*hammer-like”’ object, knocking her to the ground. Afraid
that the blood from his nose had stained the sheets, he
replaced them with clean ones from the closet. He then
retrieved a towel from the bathroom and wiped the blood
|
3a
off of Schnaps’ body. After collecting the bed sheets, the
towel, the watch, a camera, and other pieces of jewelry,
he left the apartment.
A jury convicted defendant of the knowing and pur-
poseful murder of Irene Schnaps, felony murder, first-de-
gree robbery, and second-degree burglary. Following a
penalty-phase proceeding on the capital-murder conviction,
the trial court sentenced defendant to death.
II
We first consider defendant’s contention that the trial
court’s failure to instruct the jury separately for the crimes
of knowingly or purposely causing death (intentional mur-
der) and of knowingly or purposely causing serious bodily
injury resulting in death (serious-bodily-injury murder) re-
quires reversal of his conviction. In State v. Gerald, supra,
113 N.J. at 69, we held that a person who is convicted
of serious-bodily-injury murder under N..J.S.A. 2C:11-3(a\1)
or (2) may not be sentenced to death. If the evidence
provides a rational] basis for a jury to convict a defendant
of either intentional or serious-bodily-injury murder, the
trial court ‘‘must instruct the jury to specify which, if
[either], of those findings forms the basis for a conviction.”’
State v. Coyle, 119 N.J. 194, 209 (1990).
In arguing that there was no rational basis for a finding
of serious-bodily-injury murder, the State points to the
medical evidence suggesting that the victim had been hit
fifteen times in the head with a blunt instrument and that
her neck had been squeezed for an hour. The victim’s jaw
was broken. Defendant confessed that he had hit her with
a “hammer-like object.”
Of course, such repeated blows can support a jury find-
ing of intentional murder. However, the issue here, as in
other pre-Gerald capital cases, is whether that was the
jury’s determination. The jury was not asked to distinguish
between intentional murder and serious-bodily-injury mur-
4a
der. Its verdict did not indicate which of the two it found
to apply to this case. Although it might seem probable
that the jury had intentional murder in mind, the question
is whether there is a rational basis in the evidence on
which the jury, if instructed to distinguish between the
two, might return a verdict of serious-bodily-injury murder.
If there is, then the jury, as the finder of fact, must decide
the matter. An appellate court cannot.
The State conceded that defendant’s initial intent was
to commit burglary, not murder. Defendant confessed that
he had struck the victim only once, in response to being
hit in the nose. That evidence suggests that defendant may
have intended only to injure the victim, not to kill her.
We note too that while arguing for purposes of the Gerald
issue that the number of blows inflicted unquestionably
establishes an intention to kill, the State claims for pen-
alty-phase purposes that the first blows were intended to
injure and inflict pain before death rather than to kill. See
infra at 434 (discussion of c(4Xc) aggravating factor).
The jury was free to reject the pathologist’s testimony
and accept the other evidence that indicated a lack of
murderous intent. See State v. Crisantos (Arriagas), 102
N.J. 265, 273 (1986) (a jury has ‘‘the power to disregard
even overwhelming proof’). This was not merely a one-
issue case requiring the jury to determine only whether
defendant had in fact been the one who had inflicted the
intentionally-fatal blows. The mental state of the perpe-
trator was also clearly in issue here. The trial court in-
structed the jury not just on capital murder, but also on
felony-murder, aggravated manslaughter, and manslaugh-
ter. Obviously, then, the trial court believed the evidence
would allow the jury rationally to convict on one of those
counts while acquitting defendant on capital murder. A
rational jury could have concluded that defendant inflicted
the fatal blows but had not intended to kill. The deter-
mination of whether defendant had the mens rea necessary
to permit the State to put him to death is quintessentially
’
one that our system of law entrusts to juries. All mental
states related to the law of homicide were developed over
a long period of history for the purpose of distinguishing
capital murders from others. Wechsler & Michael, ‘“‘A Ra-
tionale of the Law of Homicide I,” 37 Colum. L. Rev. 701
(1937). Determining a defendant’s mental state is the spe-
cial function of the jury, not of this Court.
The record provided ‘‘a rational basis for the jury to
find that the defendant intended to cause only serious
bodily injury.”’ State v. Coyle, supra, 119 N.J. at 209.
Because the trial court understandably failed to anticipate
Gerald and did not instruct the jury to distinguish that
offense from intentional murder, we reverse defendant’s
capital-murder conviction.
Ill
We turn not to those alleged errors that might arise
again at retrial.
ee
Defendant argues that the trial court should have sup-
pressed his confession. He claims that on five occasions
he asserted his right to remain silent, but that the police
did not ‘‘scrupulously honor”’ his invocations. See Michigan
v. Mosley, 423 U.S. 96, 103-04, (1975). Defendant contends
that the police violated the bright-line test adopted in State
v. Hartley, 103 N.J. 252 (1986), by not re-informing him
of his Miranda rights after each invocation of his right.
He also alleges that his confession was not voluntary.
=—
The police arrested defendant at about 7:30 a.m. on
October 28, 1985. When they reached the station an hour
later, the police read the Miranda warnings to defendant,
who then signed a rights form. The police did not question
him that morning.
a
fa
At 3:37 that afternoon, Sergeant Hibbs and Detective
Swanhart began interrogating defendant. They again gave
Miranda warnings to defendant, who signed another rights
form. After eliciting personal information from defendant,
the police started asking him about other crimes. At about
4:10 p.m. they questioned him about the Schnaps murder.
Defendant denied responsibility, began to cry, and ‘‘asked
for time to think, he wanted time by himself * * *.’’ The
questioning ceased and the police returned defendant to
his cell. Forty minutes later the police brought defendant
back to the interrogation room. On the way an officer
“reminded” him of his rights but did not issue the formal
Miranda warnings. When the police asked defendant about
the Schnaps murder, he again began crying and said:
‘(Before I talk or say anything else I want to talk to my
mother-in-law Pearl Thomas.”
Thomas arrived at the station an hour later and spoke
with defendant for five minutes in his cell. At 7:30 p.m.
the police took defendant back into the interrogation room.
They gave him no Miranda warnings or reminders. When
the police broached the Schnaps murder at 8:00 p.m.,
defendant again began to cry and said that he ‘‘just didn’t
do anything.’’ According to one of the officers, the ques-
tioning then ended, “not at his request or our request, it
was a mutual thing.’’ Defendant was returned to his cell.
Fifteen minutes later defendant asked to speak with
Detective Swanhart alone. Swanhart ‘‘reminded”’ defendant
of his rights and talked to him for an hour and a half.
Defendant did not admit killing Irene Schnaps but he did
confess to other crimes.
Around midnight a detective from the prosecutor’s office
spoke to defendant about the murder. He orally advised
defendant of his Miranda rights. The interview lasted only
a couple of minutes, and defendant did not give a state-
ment.
The next morning, October 29, two officers took
defendant for a one-hour car ride to the scenes of the
crimes he had admitted the night before. No Miranda
warnings were given.
At defendant’s arraignment that day for offenses un-
related to the Schnaps murder, the municipal court did
not ask him if he had or desired an attorney. That after-
noon defendant was read his Miranda rights and signed
a rights form. During the interrogation he consented to
searches of his room and car. The search of the car turned
up a Seiko LaSalle watch, later identified as having be-
longed to Schnaps’ deceased husband.
That night the police interviewed defendant in a holding
room at the jail. After reading defendant his Miranda
rights, the police told him that they had found the watch
in his car. Defendant ‘‘responded as if talkin’ to himself,
he said, oh, not in the car, he said no, no, not in the car.”’
Defendant again denied invo!vement in the Schnaps mur-
der.
The next day. October 30, defendant was arraigned in
Superior Court for the murder of Schnaps. At about 10:00
that morning, after reissuing defendant his Miranda rights,
the police started questioning him about the Schnaps mur-
der. Shortly after 11:00 a.m., defendant informed the of-
ficers that “he would tell [them] about the murder but he
first wanted to speak to his father.’’ Questioning ceased,
and arrangements were made to transport defendant’s
father to the jail. Defendant had lunch and talked to the
officers about ‘‘things in general.’”’ At 2:15 p.m. defendant
went to the prosecutor’s office, where he spoke with his
father for fifteen minutes before returning to jail.
At 2:30 p.m. the interrogation resumed without new
Miranda warnings or reminders. Defendant confessed hav-
ing killed Schnaps. The police took him back to the pros-
ecutor’s office for a formal statement. When they read
a
QQ OOO
8a
him his Miranda rights, defendant demanded an attorney.
Questioning ceased.
oo
Defendant claims that he asserted his right to silence
four times on October 28, two days before his confession:
at the 3:30 p.m. interrogation when he asked for “‘time
to think * * * by himself’; at the 5:00 p.m. interrogation
when he asked to speak to his mother-in-law; at 7:00 p.m.
when he ‘asked for more time’; and at the 7:30 p.m.
interrogation when he began to cry and said that he ‘‘just
didn’t do anything.”
The only statement that defendant seeks to suppress is
his confession of October 30. Because of the intervening
events between the alleged invocations on October 28 and
the confession, we need not decide whether defendant ac-
tually invoked his right to remain silent and whether the
police scrupulously honored those alleged requests. Even
if the police did not scrupulously honor defendant’s alleged
invocations of his right to silence, the confession was ‘‘suf-
ficiently independent to dissipate the taint of their illegal
conduct.” State v. Johnson, 118 N.J. 639, 653 (1990).
The determination of whether a confession was the
“fruit’’ of prior illegal police conduct involves three fac-
tors:
(1) the temporal proximity between the illegal
conduct and the challenged evidence; (2) the pres-
ence of intervening circumstances; and (3) the fla-
grancy and purpose of the police misconduct.
(Ibid. ]
None of those factors helps defendant. First, his confes-
sion was not “temporally proximate’’ to the alleged vio-
lations—it occurred two days later—nor did it follow a
prolonged illegal detention. See id. at 653-55 (repeated
constitutional violations during illegal ten-hour detention
preceded defendant’s escape).
eT
Ya
Second, a number of intervening circumstances sepa-
rated the alleged violations of October 28 from the confes-
sion. At 8:15 p.m. on October 28, after the fourth alleged
invocation,defendant asked to speak with Detective Swan-
hart alone. Fresh Miranda warnings are not necessary if
the accused initiates conversation after invoking the right
to silence. State v. Fuller, 118 N.J. 75 (1990). Moreover,
defendant was reminded of his rights at that time as well
as later that evening. The next day he was arraigned
before a municipal court judge. After receiving new Mi-
randa warnings that afternoon, he signed a rights form.
That evening he was read his rights again. The fcllowing
day, October 30, he was arraigned a second time and
received the Miranda warnings again.
Finally, there is not evidence of police coercion or mis-
conduct. There were no extended interrogations designed
to wear down defendant’s will. Even if defendant had
invoked his right to remain silent on October 28, any pos-
sible taint from the police’s alleged failure scrupulously to
honor his invocations was sufficiently dissipated.
The fifth time defendant allegedly invoked his right to
remain silent was on October 30 when he asked to talk
to his father. Although defendant indicated that he would
talk about the Schnaps murder when questioning resumed,
there was a significant break in the interrogation. Ap-
proximately three-and-one-half hours passed before the po-
lice resumed the interrogation. But what makes the
interruption significant is not its length so much as its
nature. The request here was qualitatively different from
the one in State v. Bey, 122 N.J. 123, 139 (1988) (Bey IJ),
in which the defendant “‘requested permission to lay down
and to think about what happened.’ The Court likened
that situation to one in which a defendant asks for ‘‘some-
thing to eat or drink, the use of toilet facilities, [or] the
opportunity to stand and stretch * * * .”’ Jbid. Defendant’s
request here was not for a brief respite to satisfy physical
ccna aaa aia
10a
needs. Instead he was asking, after three days in custody,
for the chance to consult with a close family member.
Defendant’s request is similar to the one in State v.
Hartley, supra, 103 N.J. at 258, in which the defendant
told the police, ‘‘I don’t believe I want to make a statement
at this time.” In both cases the defendant suggested that
he would talk to the police later. ‘‘[A] request to terminate
an interrogation must be honored ‘however ambiguous.’ ”’
State v. Bey, 112 N.J. 45, 64 (1988) (Bey JD (quoting State
v. Kennedy, 97 N.J. 278, 288 (1984)). Certainly the request
here was no more equivocal than the one in Bey J in which,
according to the police, the defendant had ‘‘indicated he
did not want to talk * * about it * * * .”’ Ibid. Defendant’s
conduct during three days of interrogation and his refusal
to answer questions about the Schnaps murder likewise
indicated that he did not want “‘to talk about it.”
This case also resembles Law v. State, 21 Md.App. 13,
318 A.2d 859 (1974), in which the police were questioning
the wounded defendant as he lay handcuffed to his hospital
bed. The defendant told the police that “he didn’t want
to talk any more until he was further treated.” Jd. at 36,
318 A.2d at 872 (emphasis deleted). Despite his request,
the police continued to question him. The court held that
the defendant’s ensuing statement was inadmissible. Al-
though the obvious difference from this case is that here
defendant was not wounded, the court’s decision in Law
rested on the defendant’s words, not on the surrounding
circumstances. In both this case and Law, the defendants
indicated that they would talk, but only after a subsequent
condition had been met. In Law the condition was further
treatment. Here the condition was a meeting with
defendant’s father. The implied intent to talk later does
not change the fact, as the court found in Law and as we
find here, that defendant sought to terminate the inter-
rogation.
———————<x=
lla
The importance of the police’s failure to reissue Miranda
warnings after defendant had met his father is clearly
shown by what happened when the police finally did give
him the warnings. After defendant had confessed orally,
the authorities gave him new Miranda warnings before
seeking to take a formal statement. Defendant immediately
demanded an attorney before any statement could be re-
duced to writing. It is no stretch to imagine that defendant
would have requested an attorney had the police given
him warnings when they first interrogated him after he
had met with his father.
The mandate of State v. Hartley, supra, 103 N.J. 252,
is clear. When a defendant seeks to terminate an inter-
rogation, the police must at a minimum give fresh Miranda
warnings before recommencing questioning. Jd. at 256. Any
statement made prior to the new warnings must be sup-
pressed. We pause to observe that although our dissenting
colleagues Justice Stein readily acknowledges,” post at 444,
nevertheless he concludes—contrary to the unmistakable
language of Hartley’s “‘bright line’ rule, see 103 N.J. at
267—that ‘‘the resumption of interrogation [thereafter] did
not constitute a failure by the police to ‘scrupulously honor’
defendant’s right to remain silent.”” Post at 444. Either
defendant exercised his right (as we and Justice Stein
conclude), or he did not (as Justice O’Hern concludes). If
he did, then without question Hartley requires the read-
ministering of Miranda warnings before the resumption
of interrogation.
We apply the Hartley rule even though that rule was
announced after the interrogation in this case had oc-
curred. Retroactivity is not a consideration here. ‘The
threshold question in any retroactivity decision is whether
a new rule of law has actually been announced.”’ State ».
Burstein, 85 N.J. 394, 403 (1981). The issue of retroac-
tivity ‘“‘never arises absent a new rule of law * * * .”’ State
v. Lark, 117 N.J. 331, 344 (1989) (Clifford, J., concurring
in judgment).
12a
Hartley did not announce a new rule of law. It was
“not a clear break with the past, but a simple extension
of the principle of cases * * * holding that the State must
honor ‘a defendant’s request—however ambiguous—to ter-
minate interrogation.’’”’ Bey IJ, supra, 112 N.J. at 213
(Handler, J., dissenting) (quoting State v. Kennedy, 97 N..J.
278, 288, (1984)). We said that our rule in Hartley was
“sound as a matter of New Jersey common law [and]
consistent with the spirit of the Supreme Court’s deci-
sions * * * .”’ State v. Hartley, supra, 103 N.J. at 268. The
foundation of our decision was Michigan v. Mosley, supra,
423 U.S. 96, in which the Supreme Court held that the
police had ‘‘scrupulously honored” the defendant’s decision
to remain silent because they did not approach him for
two hours, they gave him fresh Miranda warnings, a dif-
ferent officer questioned him, and the questioning con-
cerned a different offense from the one for which he was
in custody. Although the Supreme Court did not indicate
which of those elements are essential for a finding that
the police “‘scrupulously honored” a suspect’s rights, we
held that the furnishing of fresh Miranda warnings is
“‘indispensable.’’ State v. Hartley, supra, 103 N.J. at 267.
In reaching that conclusion, we relied on the decisions
of other courts as well as academic literature. See, e¢.g.,
Wilson v. United States, 444 A.2d 25, 31 (D.C. 1982) (all
Mosley factors are required to validate reinterrogation);
People v. Young, 115 Ill.App.3d 455, 71 Ill.Dec. 259, 450
N.E.2d 947 (1983) (recess and fresh Miranda warnings are
a minimum prerequisite to reinterrogation); Kamisar, ‘“The
Edwards and Bradshaw Cases: The Court Giveth and the
Court Taketh Away,” 5 The Supreme Court: Trends and
Developments 1982-83 153 (1984) (fresh Miranda warnings
are necessary for renewing questioning after suspect has
indicated desire to remain silent).
Because Hartley did not announce a new rule of law,
retroactivity is not an issue. Any defendant who had not
exhausted direct appeals when Hartley was decided could
13a
have asserted a claim based on that opinion. Because the
police did not give defendant fresh Miranda warnings after
he had indicated his desire to remain silent, Hartley re-
quires that the ensuing confession be suppressed.
Moreover, even if Hartley did create a new rule of law,
it would still apply here under either the Supreme Court’s
old analysis of retroactivity of new criminal procedure rules
or its more recent pronouncement on retroactivity in Grif-
fith v. Kentucky, 479 U.S. 314, (1987). Under its former
analysis, the Supreme Court held that Miranda itself ap-
plies to interrogations that took place before that rule was
announced if the trial did not commence until after the
Miranda decision (precisely the sequence in this case), see
Michigan v. Tucker, 417 U.S. 433, 447, (1974), but not if
the case was tried before that decision, Johnson v. New
Jersey, 384 U.S. 719, 733, (1966). The obvious similarity
between the nature and effect of Miranda and Hartley
suggests that the application of Hartley should be no less
broad.
Turning to the Supreme Court’s most recent retroac-
tivity pronouncements, we note first that Justice Stein
correctly points out, post at 439, that “ ‘[t]o the extent
that retroactivity issues arise in the context of criminal-
procedure decisions implicating rights guaranteed under
the federal constitution, United States Supreme Court
precedents control the scope of retrcactivity,’ ”’ (citing State
v. Lark, 117 N.J. 331, 335 (1989)), and that under Griffith
v. Kentucky, 479 U.S. 314, (1987), ‘‘a ‘ew rule for the
conduct of criminal prosecutions is to be applied retroac-
tively to all cases, state or federal, pending on direct re-
view or not yet final, with no exception for cases in which
the new rule constitutes a ‘clear break’ with the past.”
479 U.S. at 328, see State v. Stever, 107 N.J. 543, 548-53
(1987) (discussing Supreme Court’s development of retroac-
tivity principles). Clearly, then, Griffith mandates adher-
ence to a Hartley analysis in this case. Justice Stein would
avoid application of Griffith’s sind principle, however, on
l4a
the ground that Hartley was not based “primarily’’ on
federal-constitutional law, post at 425. Whatever “‘primar-
ily’’ means in the foregoing context, our distinguished col-
league is quite wrong
First, it is abundantly clear that Hartley was grounded
at least as much on the fifth amendment to the Unitec
States Constitution as it was on New Jersey’s common-
law privilege, codified in our Evidence Rules. No fewer
than sixteen times does the opinion refer specifically to
its “constitutional” basis. For example, we emphasized at
the outset of Hartley that our decision was founded not
only on state law but ‘‘on our understanding of the United
States Supreme Court precedents in this area.’’ State v.
Hartley, supra, 103 N.J. at 256. And: ‘{T]he failure to
readminister Miranda warnings was a violation of the ob-
ligation scrupulously to honor Hartley’s asserted right to
silence, and therefore amounted to a violation of
defendant’s fifth-amendment and state common-law right
not to be compelled to be a witness against himself.’’ Jd.
at 278. And: any statement obtained in violation of Har-
tley’s “‘bright-line’’ rule is ‘‘unconstitutionally compelled,
and hence inadmissible, as having been obtained in vio-
lation of the fifth amendment and of the state common-
law right against self-incrimination.”’ Jd. at 279. And fi-
nally: “‘{[T]he failure scrupulously to honor Hartley’s pre-
viously-invoked right to silence was a violation of
constitutional magnitude * * * .” Jd. at 283.
Second, one need look no further than Justice Stein’s
own opinion for the Court in Bey I, supra, 112 N.J. 45,
for confirmation of the federal-constitutional basis of Har-
tley: ‘‘As in Hartley * * * we base our analysis [of whether
the police had scrupulously honored Bey’s right to cut off
questioning] on both federal constitutional law and our
State common-law privilege against self-incrimination.”’ Jd.
at 63 (citing Hartley, supra, 103 N.J. at 284). And: ‘‘Har-
tley held that where the failure scrupulously to honor a
suspect’s right to cut off questioning results from the ab-
15a
-
sence of fresh Miranda warnings before resuming ques-
tioning, the illegality renders the suspect’s subsequent
inculpatory statement unconstitutionally compelled as a
matter of law.” /d. 112 N.J. at 71 (emphasis added).
Note too that in Bey the interrogation occurred in May
1983 and the trial court heard the motion to suppress
Bey’s confession late in that same year. This Court decided
Hartley in July 1986 and Bey J more than two years later,
in August 1988. No one even “‘suggest[ed] that Hartley
[did] not retroactively apply to the facts of [Bey IJ,” see
122 N.J. at 67 n.l1l—and properly so: we were simply
applying Hartley to a case that had been on direct appeal
when Hartley was decided. See id. at 58-74. Likewise, in
Bey II, supra, 112 N.J. 123, this Court engaged in a full
discussion of the Hartley principle, see id. at 134-43,
prompting two dissents on the issue of the admissibility
of the defendant’s confession under a Hartley analysis, see
id. at 184-88. There was no necessity to discuss or rule
on any question of Hartley’s retroactivity, because the par-
ties and the Court assumed, again correctly, its applica-
bility. No more was it an issue there than it is here. And
if Hartley applied in the Bey cases, on appeal when Hartley
was decided, a fortiori it applies when, as here, the trial
began after the Hartley opinion had been published.
Finally, Justice Stein overestimates Hartley’s impact (‘‘a
multitude of post-conviction-relief applications,’’ post at
442,0n cases such as this, which were tried after Hartley
had been decided. Griffith would limit retroactive appli-
cation to cases ‘‘in the pipeline’’—those on appeal when
Hartley was decided, in which the Hartley point had been
raised—and would not affect cases that had gone to final
decision before Hartley. We suspect the number is mini-
mal; and in any event the burden is not more than the
criminal-justice system should be asked to bear.
We hold that the Hartley rule bars the introduction of
defendant’s confession at retrial. We need not consider
defendant’s claim that his confession was involuntary.
l6a
.
Defendant objects to two statements made by the pros-
ecutor during his opening. After describing the murder of
Schnaps, the prosecutor told the jury:
So, as you can see, this is a very important
trial. It’s important for Nathaniel Harvey. It’s
important for the family of the victim, and it’s
important to each and every citizen.
Later the prosecutor observed that Schnaps ‘was a recent
widow, her husband having died six weeks * * * previ-
ously.”
The prosecutor’s comments were improper. They drew
attention not to issues relevant to the crime charged but
to the status of the victim and her family. His reference
to her recent widowhood was “‘plainly designed to impas-
sion the jury’ and “ ‘contained[ed] nothing that would aid
the jury in determining the defendant’s guilt or inno-
cence.’ ”’ State v. Hightower, 120 N.J. 378, 411 (1990)
(quoting State v. Williams, 113 N.J. 393, 452 (1988)). On
retrial the prosecutor must refrain from making such com-
ments.
sin
Defendant makes several objections to the testimony of
four of the State’s expert witnesses.
“=
First, defendant argues that the trial court should not
have qualified Dr. Claude Owen Lovejoy as an expert to
testify about the bloody sneaker print found on the pil-
lowcase. Dr. Lovejoy, a professor at Kent State University,
received a doctorate in biological anthropology, which ac-
cording to him is “the study of human form and function,
evolution of the human species, human variation involving
17a
anatomy, genetics, essentially the normal biology of man.”
His specialty is “‘the form and function and biomechanics
of the lower limb.” He claims to be able to estimate the
stature of a person from the size of his or her shoes.
In October 1985 the police sent Dr. Lovejoy four pho-
tographs of the pillowcase containing a sneaker print. After
having examined the pictures, Dr. Lovejoy concluded that
the bloody print had been left by either a male of ‘“‘short
stature” or a female of ‘‘average to medium tall stature.”
The police then sent Dr. Lovejoy the actual pillowcase and
three pairs of Pony hightop sneakers, marked in evidence
as S-58, S-59, and S-60, two of which they said belonged
to defendant’s son. The professor immediately decided that
neither S-59 nor S-60 had left the print, but was unsure
about S-58. He then made a print with S-58 on a pillowcase
stuffed with a pillow. Comparing that print to the one on
Schnaps’ pillowcase, Dr. Lovejoy concluded that it was
“improbable” that S-58 had left the print.
The Pony Sneaker Company sent Dr. Lovejoy thirty-one
pairs of sneakers from the same manufacturing run as S-
58. The sneakers ranged in size from 7 to 11; none was
6, 6'/,., or 7'/,. The doctor took three measurements of the
sole of each sneaker and plugged them into his ‘‘digitizer”’
to determine the size of the shoe that had left the print:
Okay, what we did was we took * * * each of
the individual shoes in the Pony sample, meas-
ured each of the dimensions that I’ve just talked
about, put those into a data base, into a com-
puter, along with shoe size and determined the
relationship between those using a variety of sta-
tistical techniques.
The simplest of those is called linear correla-
tion and if one puts a set of dimensions, two sets
of dimensions from the same object into the com-
puter it will determine the degree of relationship
between them, it will give you for example, the
18a
ability of one metric to predict the other with
certain limits of reliability and that’s what we
mean by correlation and the strength of that
physical relationship is expressed as varying from
minus one through zero to plus one plus one being
a perfect positive relationship, minus one being
a perfect negative relationship.
Based on that analysis, Dr. Lovejoy concluded that the
sneaker that had made the print was either a man’s size
6'/,, plus or minus one-half size, or a woman’s size 8 to
8'/,. The confidence limit of that conclusion was 95%, 7.e.,
the conclusion would be accurate within a one-half size
95% of the time. Deciding that hightop and lowtop sneak-
ers have decorative stripes on different portions of the
outer sole, he concluded that the sneaker was a hightop.
There are three requirements for the admission of ex-
pert testimony:
(1) the intended testimony must concern a subject
matter that is beyond the ken of the average
juror; (2) the field testified to must be at a state
of the art such that an expert’s testimony could
be sufficiently reliable; and (3) the witness must
have sufficient expertise to offer the intended
testimony. [State v. Kelly, 97 N.J. 178, 208
(1984). ]
Comparison between a shoe print and the shoe alleged to
have made that print does not require expert testimony.
State v. Johnson, 120 N.J. 263 at 293-294 (1990). Nor is
the proposition that shorter people tend to have smaller
feet the stuff of expert testimony. It would be improper
to use Dr. Lovejoy’s professed expertise to bolster such
testimony. However, to the extent that Dr. Lovejoy sought
to establish with scientific reliability the size of the shoe
and the height of the person that ieft the print, expert
testimony was proper.
’
19a
Concerning the second requirement for the admission of
Dr. Lovejoy’s expert testimony, there are three ways, in
a relatively new field of research, to prove the evidence’s
“general acceptance and thereby its reliability”’:
(1) by expert testimony as to the general ac-
ceptance, among those in the profession, of the
premises on which the proffered expert witness
based his or her analysis; (2) by authoritative sci-
entific and legal writings indicating that the sci-
entific community accepts the premises
underlying the proffered testimony; and (3) by ju-
dicial opinions that indicate the expert’s premises
have gained general acceptance. [State v. Kelly,
supra, 97 N.J. at 210.]
The State did not satisfy either the first or second al-
ternative. It did not provide evidence that anycne in the
scientific community other than Dr. Lovejoy himself
vouches for his methods.
Nor do judicial opinions indicate that Dr. Lovejoy’s
methods have gained general acceptance. In State v. Prud-
den, 212 N.J.Super. 608 (App.Div. 1986), the same trial
court that presided over these proceedings had qualified
Dr. Lovejoy as an expert to testify about a sock print.
Reversing on other grounds, the Appellate Division ex-
pressed reservations about the reliability of Dr. Lovejoy’s
methods. Jd. at 617-18. Dr. Lovejoy also testified in United
States v. Fermi, 778 F.2d 985 (3rd Cir. 1985), cert. denied,
476 U.S. 1172, (1986), to rebut the testimony of the gov-
ernment’s footprint expert, who had compared one
defendant’s footprints with impressions inside shoes found
at the crime scene and inside shoes seized from the
defendants’ residences. Notwithstanding Prudden and
Ferri, we are unaware of any cases in which an expert’s
testimony involved the scientific comparison of sneaker
prints with stature.
——
20a
We also note several glaring weaknesses that cast doubt
on the reliability of Dr. Lovejoy’s conclusions. He admitted
that he knew nothing about sneaker manufacturing or
about the extent of variations from manufacturer to man-
ufacturer or plant to plant. According to defendant, a Pony
representative reported that the sneaker print had not
even been made by a Pony. In conducting his analysis,
Dr. Lovejoy used sneakers only from the same production
series as that of S-58. Yet he had already determined that
S-58 had not made the print. Nor was there any showing
that the thirty-one pairs he measured were representative
of the production run. Moreover, although he concluded
within a 95% confidence limit that the shoe that had left
the print was size 6'/,, every shoe he examined from that
production run was at least a size 7.
Because Dr. Lovejoy’s methodology was not of sufficient
scientific reliability, we need not consider the third re-
quirement of whether he had sufficient expertise in the
field. On retrial Dr. Lovejoy may not testify as an expert.
oes
Theodore Mozer, a forensic chemist, testified as an ex-
pert on hair comparison. Mozer has worked for the New
Jersey State Police for over fifteen years as a principal
forensic chemist specializing in the analysis of human hairs
in assault and homicide cases. He received a B.S. in biology
and took graduate courses in chemistry. Mozer also took
courses in the microscopy of human hair at the F.B.I.
Academy in Virginia. A member of the International Com-
mittee on Hair Comparison, Mozer has examined hair sam-
ples in over 1,000 criminal cases and has testified as an
expert in hair comparison between fifty and one-hundred
times.
After analyzing seventy-five hairs found at the murder
scene, Mozer determined that one of them was a black
person’s pubic hair that did not match Schnaps’ hair. Com-
2la
paring a hair sample from defendant, Mozer concluded that
the hair had come either from defendant or from “‘[ajnother
individual who had [the] same microscopic characteristics.”’
According to defendant, Mozer was not qualified on that
subject because he was unfamiliar with a purported stand-
ard in the science of hair comparison that an expert must
find fifteen to twenty cellular characteristics before an
opinion can be deemed reliable. See, e.g., People v. All-
weiss, 48 N.Y.2d 40, 49, 421 N.Y.S.2d 341, 346, 396 N.E.2d
735, 740 (1979), and People v. Watkins 78 Mich.App. 89,
93-96, 259 N.W.2d 381, 384-85 (1977). At the Rule 8 hear-
ing, Mozer admitted that he was unaware of such a stand-
ard but explained that the technique he used included
analyzing ‘‘hundreds of different characteristics of these
two hairs side by side and seeing whether or not they
compare.”’ Given Mozer’s extensive experience in hair com-
parison, as established at the Rule 8 hearing, the trial
court did not abuse its discretion in admitting him as an
expert.
Defendant also claims that the State should not have
been allowed to refer to the hair as a “‘pubic hair’ because
it conjures images of a sexual assault. We agree that the
fact that the hair is a pubic hair is not relevant in this
case. The important fact is that the hair might have come
from defendant. Whether it might have come from his
head, his chest, or his pubis is irrelevant in the absence
of allegations of a sexual encounter. On retrial the pros-
ecution should refrain from referring to the hair as a “‘pu-
bic hair.”
=
Defendant challenges the trial court’s ruling that Philip
Beesley was qualified to render an opinion regarding the
percentage of blacks with a certain genetic marker in their
blood. Beesley, an expert in forensic serology, analyzed
four blood stains from Schnaps’ apartment that did not
22a
match the victim’s blood but did match defendant’s. He
found that the four stains and a sample of defendant’s
blood all contained enzyme CAII, which is present only in
blacks. Beesley testified that only 17.5% of the black pop-
ulation have CAITI.
Defendant contends that Beesley was unqualified to tes-
tify about the percentage of the population that has CAII.
In reaching that figure, Beesley relied in part on a State
study of 337 blood samples taken from blacks. The study
concluded that 17.5% of the black population in New Jer-
sey have CAII. Beesley had not participated in that study
and did not know how it had been conducted. Nor has
that study ever been published and subjected to scientific
scrutiny. His only basis for vouching for the study's re-
liability was that ‘‘[t]he person who did perform all that
analysis and all that data knows a lot about statis-
tics * * * .”’ The in-house study was an insufficient ground
for Beesley to testify about the 17.5% figure.
Beesley, however, also relied on the Source Book of Fo-
rensic Serology, which states that CAII exists in 17.5% of
blacks. If on retrial the State can show that that book
and figure are considered authoritative in the forensic-
serology community, it can introduce the figure through
Beesley. See Evid.R. 56(2); Mauro v. Owens-Corning Fi-
berglas, 225 N.J.Super. 196, 206 (App.Div. 1988) (expert
could testify about statistical data ‘‘ ‘of a type reasonably
relied upon by experts’ in the field of pulmonary disor-
der’’), affd sub nom. Mauro v. Raymark Indus., 116 N.J.
126 (1989).
Defendant also claims that the jury’s consideration of
statistical evidence quantified reasonable doubt and usurped
its function of weighing the evidence. The argument is
without merit. See State v. King, 215 N.J. Super. 504,
520 (App.Div. 1987) (‘‘[s]imply because [a] figure is rather
high is no reason to exclude it if the test procedure is a
valid one’’).
23a
—
Defendant contends that Dr. Shuster, who had con-
ducted the autopsy of the victim, improperly testified about
opinions that were not based on a reasonable degree of
medical certainty or probability. For example, Dr. Schuster
testified that the skull injury was ‘possibly’ two wounds
or ‘“‘possibly not.’’ We need not delve into each part of
Dr. Shuster’s testimony. We merely instruct the trial court
that on remand Dr. Schuster’s ultimate ‘‘[m]edical expert
testimony ‘must be couched in terms of reasonable medical
certainty or probability; opinions as to possibility are in-
admissible.’ ’’ State v. Freeman, 223 N.J.Super. 92, 116
(App.Div. 1988) (quoting Johnesee v. Stop & Shop Co., 174
N.J.Super. 426, 431 (App.Div. 1980)).
Sie
The trial court conducted a hearing to determine whether
the State could impeach defendant’s credibility with a prior
conviction. The hearing centered on defendant’s 1979 four-
count conviction arising from a rape. Defendant was sen-
tenced to a prison term of fifteen to twenty years. The
record does not indicate when he was released. The trial
court allowed the State to use the conviction for impeach-
ment.
“The well-established rule in this jurisdiction is that ad-
mission of a prior conviction ‘into evidence against a crim-
inal defendant rests within the sound discretion of the trial
judge.’”’ State v. Pennington, 119 N.J. 547, 586 (1990)
(quoting State v. Sands, 76 N.J. 127, 144 (1978)). The
defendant has the burden of showing that the conviction
should be excluded. Jbid. ‘‘The key to exclusion is re-
moteness.”’ State v. Sands, supra, 76 N.J. at 144.
The trial court here did not abuse its discretion in per-
mitting the use of defendant’s conviction for impeachment
purposes. The conviction was only seven years old. More-
24a
over, because defendant had been sentenced to a prison
term of fifteen to twenty years, at the time of trial he
must have been out of prison for less than seven years.
Given the seriousness of his prior offenses, we see no
reason to second-guess the trial court.
én <
Defendant contends that the trial court improperly ad-
mitted sixty color photographs of the murder scene and
of the victim’s body. We do not rule on that challenge
here but alert the trial court on remand to the standards
set forth in State v. Thompson, 59 N.J. 396 (1971), and
discussed in State v. Johnson, supra, 120 N.J. at 296-299,
State v. Moore, 113 N.J. 239, 295-97 (1988), State v. Rose,
112 N.J. 454, 533-36 (1988), and Bey IJ, supra, 112 N.J.
at 181-83.
2
Peggy Stevens testified that someone had stolen per-
fume and a camera from her house about a week before
the murder of Schnaps. Several months later she had re-
ported that a hatchet had been stolen. Because her family
had used the hatchet only during the fall and winter, she
did not know how long it had been missing. When the
police searched defendant’s car, they founds the camera
and undeveloped photographs of Stevens’ family.
At a Rule 8 hearing the State argued that Stevens’
testimony established defendant’s identity, showed his in-
tent, and corroborated his confession, in which he had
admitted having stolen a “hammer-like’’ instrument from
someone’s garage a week before the murder. Defendant
countered that Stevens’ testimony was inadmissible ‘‘other
crimes’ evidence because she could not state when she
had last seen the hatchet and because her testimony did
not prove that defendant had stolen it.
25a
Evidence of ‘‘other crimes’’ is not admissible to prove
a person’s disposition to commit crime but is admissible
“to prove some other fact in issue including motive, intent,
plan, knowledge, identity, or absence of mistake or acci-
dent.” Evid. R. 55. The State bears the burden of proving
other crimes by clear and convincing evidence. State v.
Stevens, 222 N.J. Super. 602, 614 (App.Div. 1988), affd,
115 N.J. 289 (1989).
Although the trial court admitted the evidence at first
for ‘‘the issues of identification, state of mind, purposefully
or knowingly, type of instrument used, presence of the
defendant at the scene, [and] corroboration of [defendant’s]
confession,’ its jury instructions limited consideration of
the evidence to the issue of identification.
Defendant argues that the testimony was inadmissible
at the guilt phase because the State did not prove by clear
and convincing evidence that defendant had stolen the
items. The State, however, did provide substantial evidence
of that allegation. The Stevens family had reported their
camera as stolen about a week before the murder. The
police had found the camera and film in the trunk of
defendant’s car. Defendant had confessed to having stolen
a ‘‘hammer-like’’ object from a garage shortly before
Schnaps’ death. The trial court did not abuse its discretion
in allowing Stevens’ testimony. However, because we have
determined that defendant’s confession must be sup-
pressed, the trial court should reconsider the issue in light
of the remaining evidence.
The State contends that the trial court should have al-
lowed the jury to consider Stevens’ testimony not only for
identification but also as evidence of defendant’s purpose-
ful intent. We see no basis for finding that the trial court
abused its discretion in limiting admissibility to the issue
of identification.
Defendant also argues that even if Stevens’ testimony
is admissible at the guilt phase, it should not be admitted
26a
at the penalty phase. In the penalty phase the State “‘is
restricted to proving the statutory aggravating factors and
rebutting proof of mitigating factors.’’ State v. Rose, su-
pra, 112 N.J. at 503. The State asserts that Stevens’
testimony is relevant to aggravating factor c(4\(c) as show-
ing that ‘“‘defendant armed himself with a weapon capable
of inflicting pain and suffering in addition to death.’’ The
testimony is not admissible at the penalty phase for that
purpose. The fact that defendant may have stolen a hatchet
from the Stevenses is not relevant to c(4\c). What matters
is whether he used that weapon to inflict pain and suf-
fering on the victim. Stevens’ testimony is not relevant
to that question. However, her testimony might be rele-
vant to the issue of intent under c(4\c). If the State pro-
poses to show that defendant stole the hatchet for the
purpose of inflicting pain and suffering on a future murder
victim, Stevens’ testimony might be admissible. Otherwise,
if defendant is convicted of capital murder on remand, the
trial court should not admit her testimony at the penalty
phase.
-G-
Defendant alleges a number of penalty-phase errors in-
volving jury instructions that did not conform to our hold-
ings in subsequent capital cases. We need not consider
those claims now. If there is a new penalty phase on
remand, the trial court should heed those opinions in for-
mulating its instructions.
Defendant also contends that the evidence does not sup-
port a finding of aggravating circumstance c(4\c), that the
murder was wantonly vile, horrible, or inhumane. The State
argues that the murder of Schnaps falls into the category
of c(4Xc) murders in which the perpetrator “intended to
cause, and did in fact cause, severe physical or psycho-
logical pain or suffering to the victim prior to the victim’s
death.”’ State v. Ramseur, 106 N.J. 123, 211 (1987). The
State claims that defendant initially struck Schnaps in the
27a
head with the hatchet to cause her severe physical pain
and suffering prior to her death. Only later did he strike
the fatal blows. The State further argues that there was
evidence of post-death mutilation of the body that indicates
depravity of mind.
Because the trial occurred before our opinion in Ram-
seur, the trial court did not analyze the evidence under
our narrowed construction of ¢c(4\(c). Given the factual na-
ture of that issue, we will not pass on it without the trial
court’s having had the opportunity to evaluate the evi-
dence. See State v. Hightower supra, 120 N.J. at 420.
~ IV -
Defendant’s capital-murder conviction is reversed. The
cause is remanded for a new trial.
O’HERN, Justice, concurring and dissenting in part.
I concur in the opinion and judgment of the majority,
expect to the extent that it invalidates defendant’s confes-
sion.
This case is far removed from our recent confession case
of State v. [Walter] Johnson, 120 N.J. 263 (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, ‘] can’t talk about it.’”’ Jd. at 284. Such repeated
refusals had to create an ambiguity about whether he had
thereby expressed 2 ‘‘desire to cut off questioning.” Ibid.
We noted that “[djefendant’s reluctance to answer ques-
tions was not confined to an isolated ambiguous remark.
He persisted, for well over an hour, in a pattern of pro-
longed silences and unresponsiveness, refusing to answer
any and all questions about the * * * murders.” Jd. at 284.
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.
28a
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 ques-
tioning 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 in-
terruption 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, (1983). After all, the warnings
in State v. Hartley, 103 N.J. 252 (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 re-
main silent or to request that questioning cease. In that
regard, the confession obtained in State v. Bey II, 112 N.J.
123 (1988), provides guideance. There, the defendant
claimed that his request to lie down and ‘‘think about what
happened”’ was an invocation of his right to cut off ques-
tioning, and that the police failed to “‘scrupulously honor”’
his right by resuming interrogation without reissuing a
Miranda warning after his one hour or rest. In rejecting
defendant’s argument, the Court observed that any rea-
sonable police officer could not have construed the state-
ment as an assertion of his right to remain silent:
Defendant merely communicated his desire to
spend some time thinking about the events that
29a
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 con-
tinue 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. Other-
wise, 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 nere, time to lie down. [/d. at 138-
39.]
Harvey did not ask that questioning should end. A con-
trasting case is State v. Bey I, 112 N.J. 45, 64 (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. Reczi! 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 the totality of circumstances test
suggested by Justice Stein in his separate opinion.
30a
STEIN, J., concurring in part and dissenting in part. -
Except for its conclusion that our decision in State v.
Hartley, 103 N.J. 252 (1986), must be applied retroactively
to police interrogations that occurred before the Hartley
opinion had been published, I join in the opinion of the
majority. I write separately to emphasize and explain my
disagreement with the Court’s holding concerning Har-
tley’s retroactive application. I find that Hartley’s purpose
to ‘avoid * * * confusion and conflict in future cases, * * *
on the question of the minimum requirement for ‘scru-
pulously honoring’ [the right to silence],”’ id. at 268, and
its recognition of ‘‘[t]he necessity for our giving guidance
to our own law-enforcement officials * * * ,”’ id. at 285,
are irreconcilable with today’s holding that Hartley must
be applied to invalidate confessions elicited by interroga-
tions conducted before law-enforcement officials learned of
Hartley's bright-line rule requiring mandatory rewarning
whenever a suspect asserts a right to silence. The result
of applying Hartley to the interrogation in this case, in
the course of which police officers administered Miranda
warnings to defendant on seven separate occasions between
his arrest and confession, highlights the anomaly of the
Court’s determination to accord Hartley full retroactivity.
;.
In State v. Hartley, this Court held that before
an accused’s previously-asserted right to remain
silent may be deemed to have been ‘‘scrupulously
honored,” law-enforcement authorities must, at a
minimum, readminister the Miranda warnings. In
the absence of those renewed warnings any in-
culpatory statement given in response to police-
initiated custodial interrogation after the right to
silence has been invoked is inadmissible. [Id. at
256. ]
The Court based its decision “not only on our under-
standing of federal constitutional law, but on our state
3la
common-law privilege against self-incrimination as well.”
Id. at 284. It acknowledged, however, that the United
States Supreme Court had not yet ruled on the issue, and
that its prediction concerning how that Court would rule,
if confronted with the Hartley question, might by incor-
rect:
In respect of federal constitutional law, therefore,
ours is a predictive exercise, one conducted on
the basis of our best understanding of the
authorities, but nonetheless predictive. We think
our reading of the federal law is right. We ac-
knowledge that it may be wrong. Given the im-
portance of the question involved, we see our
duty to settle it as a matter of state law. [/d. at
284-85. ]
Whether Hartley is based primarily on federal consti-
tutional law or state law is critica! to the question of its
retroactive application. As we acknowledged in State v.
Lark, 117 N.J. 331 (19839),
[tlo the extent that retroactivity issues arise in
the context of criminal-procedure decisions im-
plicating rights guaranteed under the federal con-
stitution, United States Supreme Court
precedents control the scope of retroactivity. [Jd.
at 335 (citation omitted). ]
In Griffith v. Kentucky, 479 U.S. 317, (1987), the Supreme
Court held that new constitutional rules of criminal pro-
cedure apply retroactively to cases pending on direct re-
view, whether or not the rule constitutes a ‘‘clean break”’
with the past. Jd. at 328. Thus, if our holding in Hartley
is rooted primarily in federal constitutional law, its rer-
troactive application to cases on direct appeal is mandated
by Griffith.
Particularly because our holding in Hartley purports
merely to predict federal constitutional law, it would be
32a
realistic to consider Hartley as based primarily on state
law. Although decided in 1986, Hartley’s holding has yet
to be adopted by the Supreme Court, and several federal
courts had previously decided confession cases in a manner
inconsistent with Hartley's bright-line rule. See Stumes v.
Solem, 752 F.2d 317, 321 (8th Cir. 1985) (“W]e believe
that Stumes was aware of his Miranda rights and vol-
untarily chose not to exercise them. To require the police
to reissue Miranda rights under these circumstances would
serve no real purpose.”’), cert. denied, 471 U.S. 1067 (1985);
Jarrell v. Balkcom, 735 F.2d 1242, 1254 (‘‘We conclude
that no violation of petitioner’s rights occurred by the
failure to reissue the Miranda warnings * * * .’’), reh’g de-
nied, 740 F.2d 979 (11th Cir. 1984), and cert. denied, 471
U.S. 1108, (1985); United States v. Hackley, 636 F.2d 493,
500, 504-05 (D.C. Cir. 1980) (third set of Miranda warn-
ings not required and statement made two hours after last
warnings held admissible; dissenting opinion views colloquy
with accused as reinterrogation); Brown v. Tard, 552
F.Supp. 1341, 1349 (D.N.J. 1982) (“Miranda does not re-
quire that a fresh set of warnings be repeated each time
the police resume interrogation after an interruption.’’);
see also Miller v. United States, 396 F.2d 492, 496 (8th
Cir. 1968) (rewarning not required each time interrogation
process renewed), cert. denied, 393 U.S. 1031, (1969);
United State v. Kinsey, 352 F.Supp. 1176, 1178 (E.D.Pa.
1972) (Miranda warnings do not become stale).
Because Hartley’s federal constitutional underpinning is
questionable, and because there is no doubt about the avail-
ability of state common law as a source of Hartley’s bright-
line rule, it is appropriate that the issue of Hartley's
retroactivity be determined by state standards. Cf. State
v. Lark, supra, 117 N.J. 331, 335 (retroactivity of State
v. Howard, 110 N.J. 113 (1988), determined by state law,
although Howard collaterally implicates federal constitu-
tional rights).
33a
In State v. Burstein, 85 N.J. 394 (1981), we summarized
the options available in determining the retroactive appli-
cation of our decisions:
[W]e note that this Court has four options open
to it in any decision involving retroactivity:
(1) make the new rule of law purely prospective,
applying it only to cases whose operative facts
arise after the new rule is announced; (2) apply
the new rule to future cases and to the parties
in the case announcing the new rule, while ap-
plying the old rule to all other pending and past
litigation; (3) grant the new rule limited retroac-
tivity, applying it to cases in (1) and (2) as well
as to pending cases whee the parties have not
yet exhausted all avenues of direct review; and,
finally, (4) give the new rule complete retroactive
effect, applying it to all cases, even those where
final judgments have been entered and all ave-
nues of direct review exhausted. [Jd. at 402-03
(citation omitted).]
Our choice among those four options has been informed
generally by weighing
(1) the purpose of the rule and whether it would
be furthered by a retroactive application, (2) the
degree of reliance placed on the old rule by those
who administered it, and (3) the effect a retro-
active application would have on the administra-
tion of justice. [State v. Nash, 64 N.J. 464, 471
(1974).]
All three of the Nash factors counsel against retroactive
application of Hartley. To the extent that the purpose of
Hartley is to give ‘“‘guidance to our own law-enforcement
officials,’ 103 N.J. at 285, and ‘‘avoid * * * confusion and
conflict in future cases,” id. at 268, retroactive application
is a non sequitur. Applying the second Nash factor, the
degree of reliance placed on the pre-Hartley law requiring
34a
Miranda warnings before custodial interrogation, and man-
dating that law-enforcement officials ‘scrupulously honor”
a suspect’s assertion of the right of silence, Michigan v.
Mosley, 423 U.S. 96, 105, (1975), is amply illustrated by
the interrogation in this case. Police officers administered
Miranda warnings to defendant on seven separate occa-
sions between his arrest and his confession. As the ma-
jority opinion acknowledges, ‘‘[t]here is no evidence of
police coercion or misconduct. There were no extended
interrogations designed to wear down defendant’s will.’’
Ante at 418. It is entirely reasonable to assume that if
Hartley had been decided before defendant’s interrogation,
the police officers who had so diligently atterapted to com-
ply with the dictates of the Miranda rule might well have
rewarned defendant after his meeting with his father and
prior to resuming interrogation. To invalidate defendant’s
confession because the police did not observe Hartley's
bright-line rule—a rule that did not then exist—is mani-
festly inappropriate and inconsistent with our retroactivity
jurisprudence.
Finally, retroactive application of Hartley may very well
generate a multitude of post-conviction relief applications
from defendants whose confessions were elicited by pre-
Hartley interrogations. Those confessions may have passed
muster under Michigan v. Mosley, supra, 423 U.S. 96,
which required that a suspect’s assertion of the right to
silence be scrupulously honored, but may not satisfy Har-
tley’s bright-line rule mandating readministration of M7-
randa warnings before resumption of questioning. Thus,
it is likely that retroactive application of Hartley would
adversely affect the administration of justice.
The majority correctiy observes that prior decisions of
this Court, although not deciding the issue, assumed that
Hartley applied retroactively, citing State v. Bey, 112 N.J.
45, 67 n.11 (1988) (Bey J), and State v. Bey, 112 N.J. 123,
134-43 (1988) (Bey IJ), anta at 419. In my view, our as-
35a
sumptions in Bey J and Bey IJ were unfounded, and should
not impel us to decide the issue incorrectly.
The majority compares retroactive application of Hartley
to the treatment given by the Supreme Court to Miranda
v. Arizona, 384 U.S. 436, (1966), observing that ‘Miranda
applies to intrrogations that took place before that rule
was announced if the trial did not commence until after
the Miranda decision.”’ Ante at 422 (citations omitted). The
majority suggests that application of Hartley should be no
less broad that that of Miranda, noting the ‘“‘obvious sim-
ilarity’’ between the “‘nature and effect’’ of the two de-
cisions. However, the Supreme Court decision applying
Miranda to cases tried after the date of decision in that
case explicity rejected full retroactive application of the
rule:
In the light of * * * various considerations, we
conclude that * * * Miranda * * * should not be
applied retroactively.
So @&@ 86 @ £2 8 2 aR SS SC
*** Future defendants will benefit fully from
our new standards governing in-custody inter-
rogation* **. Law enforcement officers and
trial courts will have fair notice that statements
taken in violation of these standards may not be
used against an accused. Prospective application.
only to trials begun after the standards were an-
nounced is_ particularly appropriate here.
Authorities attempting to protect the privilege
have not been apprised heretofore of the specific
safeguards which are now obligatory. Conse-
quently they have adopted devices which, al-
though below the constitutional minimum, were
not intentional evasions of the requirements of
the privilege. In these circumstances, to upset all
of the convictions still pending on direct appeal
which were obtained in trials preceding * * * Mi-
36a
randa would impose an unjustifiable burden on
the administration of justice.
At the same time, we do not find any persu-
asive reason to extend * * * Miranda to cases
tried before those decision were announced, even
though the cases may still be on direct appeal.
[Johnson v. New Jersey, 384 U.S. 719,732-33,
(1966). }
Thus, the Court rejected both full retroactivity and ret-
roactive application to cases pending on appeal but tried
prior to Miranda. The limited form of retroactive appli-
cation employed by the Court in Johnson need not guide
our determination of retroactivity under State law.
Relying on the Nash factors, this Court has in the past
rejected retroactive application of new rules of law that
would have invalidated ‘‘law enforcement actions under-
taken in good-faith reliance upon then long-standing legal
authority.”” State v. Carpentieri, 82 N.J. 546, 549 (1980);
ef. State v. Lark, supra, 117 N.J. 331 (limiting retroactive
application of State v. Howard, supra, 110 N.J. 113, to
pipeline cases); State v. Catania, 85 N.J. 418, 446 (1981)
(minimization standards adopted by court to be applied
only prospectively); State v. Burstein, supra, 85 N.J. 394,
411 (holding in State v. Cerbo, 78 N.J. 595 (1979) that
delay in presenting wiretap tapes for sealing required
suppression absent explanation for delay, would be applied
only prospectively); State v. Carpentieri, supra, 82 N.J.
546 (holding that Delaware v. Prowse, 440 U.S. 648, (1979),
applies only to random traffic stops occurring after date
of decision); State v. Howery, 80 N.J. 563 (1979) (holding
that Franks v. Delaware, 438 U.S. 154, (1978), applies only
to search warrants issued after date of decision).
Prospective application of our decision in Hartley is fully
consistent with these decision. It avoids the invalidation
of confessions admissible in evidence but for the non-ob-
servance of Hartley’s bright-line rule, which was not only
37a
unknown but unanticipated before this Court’s decision in
Hartley was published.
Il.
As I view this record, defendant asserted his right to
cut off questioning when he told the police officers that
‘the would tell [them] about the murder but he first wanted
to speak to his father.’’ The resumption of interrogation
after defendant spoke to his father, even without fresh
Miranda warnings, did not constitute a failure by the po-
lice to ‘‘scrupulously honor’ defendant’s right to remain
silent. In the context of the numerous administrations of
Miranda warnings over the past several days, the officers
could reasonably have assumed that defendant was aware
of his right to cut off questioning at any time. The trial
court determined that the police officer ‘“‘fully * * * com-
plied with all of the defendant’s constitutional rights,’’ and
that defendant knowingly and voluntarily waived his right
to remain silent. I would hold that defendant’s confession
was properly admitted in evidence.
Garibaldi, J., joins in this opinion.
HANDLER, Justice., concurring and dissenting in part.
In November 1985, the State indicted defendant, Nathan
Harvey for capital murder, robbery in the second degree,
and burglary in the second degree. Following a jury trial,
in October 1986, defendant was convicted on all counts.
The Court now reverses defendant’s capital murder con-
viction and death penalty. I concur in its judgment. I am
in accord with the Court’s determinations that reversible
error occurred in the admission into evidence of defendant’s
confession and in the failure to provide defendant with a
charge that clearly distinguished between intentional mur-
der and murder based only on intent to cause serious
bodily injury resulting in death. I write separately to stress
what I believe to be additional reasons for the reversals
38a
of the conviction and sentence. These relate to the ad-
mission and use of expert testimony and of evidence of
other crimes. I also reiterate my view that the State’s
capital murder statute is unconstitutional as enacted, con-
strued and applied, also warranting the reversals in this
case. See State v. DiFrisco, 118 N.J. 253, 284 (1990) (Han-
dler, J., dissenting and concurring).
5
The Court recognizes, and the State concedes, that
defendant’s confession is the most significant evidence of
guilt in this case. The Court now rules that the confession
was unconstitutionally obtained because the police failed
to scrupulously honor his request to remain silent. Ante
at 421. I agree with that ruling.
The Court emphasizes that the murder charge in this
case clearly failed to comply with the standards of State
v. Gerald, 113 N.J. 40, 69 (1988). I concur in the Court’s
determination that defendant is entitled to a murder charge
that distinguishes intentional murder from serious-bodily-
injury murder. Ante at 412-414. It is also clear that the
failure to give a Gerald charge resulted in a determination
that cannot be the basis of a capital murder conviction.
The jury verdict sheet stated that a finding of intent to
cause either death or serious bodily injury resulting in
death constituted capital murder. Moreover, as the Court
points out, there was adequate evidential support for a
Gerald charge. Ante at 413-414; see State v. Coyle, 119
N.J. 194, 209 (1990). Because the jury was charged on
felony-murder, aggravated manslaughter, and manslaugh-
ter, there was sufficient evidence to support murder ver-
dicts that were neither knowing nor purposeful. See State
v. Pennington, 119 N.J. 547, 562 (1990).
II.
The Court recognizes the problematic quality of much
of the expert testimony in this case. Ante at 425-431. I
39a
have the same misgivings as does the Court with respect
to much of this evidence. In my view, however, portions
of it were unquestionably incompetent and inadmissible,
and the resultant prejudice constitutes added grounds for
reversal of the conviction.
I concur in the Court’s determination that the tria] court
abused its discretion in admitting the purportedly expert
testimony of Dr. Lovejoy. Ante at 425-429. Dr. Lovejoy’s
analysis of the blood-stained pillowcase, and conclusion that
a “small man”’ or an “‘average-size woman”’ with a show
size of 6'/, plus or minus one-half size left the print on ~
the pillowcase, were based on an unproven and unreliable
methodolozy. See State v. Zola, 112 N.J. 384, 447-48 (1988).
Moreove. because this opinion testimony was central iden-
tification evidence linking Harvey to the crime, as stressed
by the prosecutor in his guilt-phase summation, the error
in admitting Dr. Lovejoy’s opinion is reversible in my view.
Another serious error involves the expert opinion of Dr.
Marvin Shuster. Dr. Shuster performed the autopsy on the
victim and testified as a State witness to his opinions and
conclusions regarding the cause of death. Defendant claims
that the trial court erroneously allowed critical aspects of
this opinion testimony which were not based on a reason-
able degree of medical certainty or probability. The Court
acknowledges the validity of that standard, noting that
“opinions as to possibility are inadmissible,’’ but rules only
that it must be satisfied on a retrial. Ante at 431. This
opinion testimony was important, the error in its admission
serious, and the prejudice caused thereby substantial. |
believe it constitutes an independent ground for reversal
and the Court, rather than content itself with a precatory
admonition, should so state.
On direct examination, Dr. Shuster testified about the
length and location of a major head wound. He then in-
dicated the “‘particular wound... looked like it was a
confluence or [sic: of?] at least two.’’ He also stated that
40a
“there were pressure marks on the neck’’ and that ‘“‘iJt
usually takes quite a number of minutes, probably more
in the realm of an hour,’ to apply that pressure.
That testimony had the potential of being highly sig-
nificant evidence of the manner in which the killing oc-
curred. Nevertheless, the witness’ conclusions were based
on no more than “possibilities.” He testified as follows:
Q. And [the autopsy report] talks about that six
inch opening?
A. That’s right.
Q. And is says, does it not, obvious fracturing
of the skull is present in the depths of this wound
which may represent the confluence of several
wounds, is that correct?
A. That’s correct.
Q. In other words you say that its possibly two
wounds?
A. Yes.
Q. And it’s possibly not?
A. Thats correct.
Q. This marking on the neck you said could have
been the result of pressure for approximately an
hour, is that correct?
A. That’s what I said, yes, sir.
Q. And again this is in the area of possibility,
is that correct, it could be possibly less, possibly
more?
A. That’s correct, yes.
> ©& 26 8 2 82. es 8 8 @ ©
Q. And you said that it was a blunt object that
causes these injuries, is that correct?
4la
A. I said object or objects.
Q. You said object or objects?
A. Yes.
Q. Outside the presence of this jury you had
voiced an opinion that there was possibly two
objects?
A. Either two objects or one object with several
either sides or characteristics capable of giving
different patterns to the injuries, yes.
Q. And this in the range, again, of possibility?
A. That’s correct.
i ee
Q. And the number of blows as you said, this is
the range of possibilities, too, you can’t say that
definitely or probably that it was fifteen, as far
as you know it’s possibly fifteen or more?
A. Fifteen or more, yes.
Critical portions of Dr. Shuster’s testimony were not
couched in terms of sifficient medical certainty. I believe
the failure to explicity categorize all significant portions
of Dr. Shuster’s testimony in terms of reasonable medical
certainty resulted in the disclosure of speculative and in-
admissible evidence.
Dr. Shuster’s testimony cannot be minimized with re-
spect to its force and influence in this case. His opinions
about the number of blows and the type of instrument
causing the victim’s injuries were crucial to the prosecu-
tion’s theory that this was not a reflexive or impulsive
homicide justifying a manslaughter verdict. The opinion
evidence escalated the case into an intentional homicide
coupled with a purpose to inflict gratuitous pain and suf-
fering, clearly prejudicing defendant’s ability to have a fair
42a
determination under Gerald as well as to avoid the death
penalty under aggravating factor c(4\(c). Yet that opinion
evidence was so patently inadequate in terms of the stand-
ards that govern medical testimony that its admission must
be deemed reversible error.
Ill.
The Court finds no major difficulty with respect to a
prior conviction admitted for inpeachment purposes, nor
is particularly troubled by the admission of other-crimes
evidence. Ante at 431-432. I believe the conventional stand-
ards under which these evidentiary rulings were made are
inadequate in the capital-murder context and that, in both
instances, reversible error occurred. See State v. Long, 119
N.J. 439, 513-18 (1990) (Handler, J., concurring and dis-
senting).
The Court finds unexceptional the admission of a prior
rape conviction to impeach defendant’s credibility under
State v. Sands, 76 N.J. 127 (1978). ‘‘Given the seriousness
of his prior offenses, we see no reason to second-guess
the trial court.’’ Ante at 432. It is extraordinary that such
evidence could be received in light of other evidence re-
lating to a single pubic hair attributable to a black person
found on the victim, which disclosure had the unmistakable
potential to inject sexual assault into the case. Ante at
429,
The Court rules that, ‘‘{o]n retrial the prosecution should
refrain from referring to the hair as a ‘pubic hair.’ ’’ Jbid.
That does not eliminate the grave potential for prejudice
inherent in the prior rape conviction, however. Informing
the jury that defendant had committed another serious,
violent crime in the past has the clear capacity to influence
its determination of substantive guilt on the capital-murder
count. In a capital case, the slight bearing on credibility
that such a prior conviction may have can never outweigh
such profound prejudice in my estimation. See State v.
Pennington, supra, N.J. at 561-63 (Handler, J., concurring
and dissenting).
The Court recognizes that the other-crimes evidence per-
taining to defendant’s theft of a hatchet could have a
prejudicial impact with respect to the penalty phase of the
trial. Ante at 434-435. In my view, it is imperative that
the potential for prejudice of such evidence in the penalty-
phase trial be considered by the trial court in determining
it s admissibility in the guzlt-phase trial. I stressed in State
v. Long, supra, that
under Evidence Rule 55 and Evidence Rule 4, the
court must go further and determine the exist-
ence of potential prejudice, and weigh the pre}-
udice against the probative worth of the evidence.
Because “‘other-crime evidence has a unique tend-
ency to turn a jury against the defendant,” State
v. Stevens, 115 N.J. 289, 302-03 (1989), that
weighing process is particularly critical in a cap-
ital-murder prosecution. Such proof offered in the
guilt phase of a capital-murder trial has an ‘‘ev-
identiary fallout’’ that can taint not only the ju-
ry’s determination of guilt but also its
determination of life or death. [119 N.J. at 515
(Handler, J., concurring and dissenting).]
I repeat:
Those several considerations under-score the
need in a capital-murder prosecution to require
that any Evidence Rule 4 hearing to determine
the admissibility of other-crimes evidence—other
uncharged crimes, other charged crimes, and
other prior convictions—must take into account
not only the prejudicial effect on the determi-
nation of guilt but also the prejudicial effect on
the determination of sentence. See State v. Pen-
nington, supra, 119 N.J. at 586-87. The court
must, in the guilt-phase of a capital-murder pros-
44a
ecution, I submit, bring into the equation a con-
sideration of the prejudice such evidence can have
in terms of arousing, inflaming, or confusing a
jury in its critical assessment of aggravating and
mitigating factors, and in terms of the capacity
of such evidence to mark defendant as an evil,
violent and dangerous person. [/Jd. at 516 (slip
op. at 16-17) (Handler, J., concurring and dis-
senting). |
Those considerations apply here. As I view the record
they justify reversal.
IV.
I concur and dissent in part from the judgment of
the Court.
Concurring in part, dissenting in part - Justice HAN-
DLER, O’HERN, GARIBALDI and STEIN - 4.
For reversal and remandment - Chief Justice WIL-
ENTZ, and Justice CLIFFORD and POLLOCK - 3
45a
APPENDIX B
ORAL OPINION OF THE SUPERIOR COURT,
LAW DIVISION
(T9/17/86 at 113]
As earlier indicated this motion not only seeks an order
to suppress evidence seized pursuant to a warrantless and
warrant searches but also seeks an order suppressing all
statements and confessions made by this defendant to all
police authorities.
In other words, I’m dealing now, counsellors, with the
Miranda aspect of your motion.
Defense substantially asserts that the statements made
by the defendant were the result of unlawful physical and
mental coercion, a failure to honor his Miranda rights, late
arraignments, beating and badgering of the defendant and
the denial of his Sixth Amendment rights.
The evidence shows that all the statements and confes-
sions made by this defendant were pursuant to a custodial
interrogation. I have no problem finding that the setting
under which he was interrogated by both the Mercer
County and the Middlesex County police [114] authorities
was a custodial interrogation within the meaning and def-
inition in the Miranda case.
Having so determined that it was, statements procured
pursuant to a custodial interrogation, the Miranda warn-
ings or as we say the Miranda mandate is now applicable,
and the State is required to prove beyond a reasonable
doubt that the Miranda warnings were given to this
defendant before the interrogation commenced and before
any statements were taken from him.
They also have the burden of proving beyond a reason-
able doubt that he knowingly and intelligently waived his
constitutional right prior to the making of any statements
or confessions.
46a
The State, additionally, whether Miranda is applicable
or not must prove beyond a reasonable doubt that any
statement, any confession this defendant made passes the
test of voluntariness. They must prove also beyond a rea-
sonable doubt that it was voluntarily given, and the issue
of voluntariness is only made after this Court makes a
complete and thorough review of the totality of all of the
circumstances, relevant circumstances immediately sur-
rounding the making of the statements challenged and the
confessions, all of the circumstances and factors prior to,
during and even [115] after.
I must weigh all of the factors that favor voluntariness
against all of the factors in the case that weigh against
it. That’s what is meant when we say the totality of all
the circumstances determines whether a statement or a
confession is voluntary or not.
That includes, obviously, the characteristics of the
defendant. His age, the level of his intelligence, his edu-
cation, as well as his mental and physical condition at the
time of the interrogations and when he made the chal-
lenged statements and confessions.
The Court must also review and examine the number,
the number and the durations of the interrogations and
determine whether any of the methods used by the officers
included any physical or mental coercion, any threats or
promises or inducements to persuade him to confess.
Whether any deceptive techniques were used, whether
there was any direct or implied promises made to the
defendant or rewards of benefit. Did the police utilize any
psychologically oriented techniques to procure statements
and confessions from the defendant? If a person is suf-
fering from a mental disability which renders him incap-
able of understanding his constitutional rights, [116]
obviously any waiver would be void.
With respect to the intelligence factor, subnormal men-
tality does not ipso facto render a statement or a confes-
47a
sion involuntary. It’s a factor to be considered, and if it
doesn’t deprive the person of his capacity to understand
the meaning and the affect [sic] of a confession it does
not weigh against the voluntariness of the same. Mental
subnormality is just another factor to be considered to-
gether with the others.
Any statement which is the product of physical violence
or the threat of it, or a threat some harm may befall the
defendant and his family is involuntary. Any statement
which is influenced or is the result of any promise which
holds out a hope or benefit of reward is involuntary. Any
promise, even if indefinite in nature that his punishment
maybe [sic] reduced if he confesses is involuntary. Any
misrepresentation by the police as to the quantity or the
availability of evidence against him is another factor to be
considered and weighed together with all of the other rel-
evant surrounding factors.
The use of psychologically oriented techniques in ques-
tioning a person is not inherently coercive but is, again,
another factor to be considered by this [117] Court with
the other factors. To indicate to a defendant that he would
or might receive help for a problem if diagnosed to exist,
and if he requires help, doesn’t render a confession in-
voluntary.
As indicated earlier under New Jersey law a confession
obtained during a period of delayed arraignment is not,
per se, inadmissible, however, is another factor to be
weighed together with all the other factors.
The credible evidence presented at this hearing estab-
lishes beyond a reasonable doubt that the defendant re-
ceived his Miranda warnings on several occasions in writing
and verbally before he was interrogated by and made
statements and confessions to both police authorities, Mer-
cer and Middlesex. It also establishes beyond a reasonable
doubt that he knowingly and intelligently waived his con-
stitutional rights. The evidence presented at this hearing
48a
establishes beyond a reasonable doubt that the statements
and confessions made by the defendant to the Mercer
County and Middlesex County police authorities were vol-
untarily made.
As I indicated earlier, if you listen to the tapes of the
recorded conversations, during one of the interrogations
with the West Windsor Police Department [118] and the
taped conversation during the tour of West Windsor with
the defendant, you quickly conclude that this is not a
defendant that’s laboring under any form of violence, coer-
cion, physical or mental disability. His awareness, his com-
prehension of what he was doing is clearly demonstrated
by the taped conversations which revealed completely di-
rect, responsive and coherent responses to questions ad-
dressed to him by the police authorities. Certainly no
offensive police action indicated or demonstrated, in fact,
the evidence, credible evidence clearly establishes, as I
stated before, and I'll state it again because I was talking
about consent before, I’m on confession now, shows that
the police officers fully recognized, complied with all of
the defendant’s constitutional mghts in this matter, and
the police authorities recognized and respected, and they
are to be complimented for it not criticized, his human
needs and complied with all of his requests with reasonable
dispatch.
The State correctly asserts that the law enforcement
officials gave this defendant more than what the law re-
quires. I agree. The credible evidence presented pertaining
to the number and duration of all interrogations of the
defendant as well as the method [119] of interrogation
clearly negates in my mind any contention that there was
any form of offensive police action by either the Mercer
County and Middlesex County law enforcement authorities,
prior to, during and subsequent to any of the interroga-
tions of the defendant.
49a
The police did not use deception. They made no promises
or inducements to persuade this defendant to confess nor
did they make any promise of reward or benefit. They did
indicate, and as I recall Sergeant Hibbs’ testimony and
listening, I believe, to the tape, they did indicate to the
defendant that if he had a problem he would probably get
some treatment if deemed necessary,and as I indicated
earlier this does not render this statement, per se, coercive
or involuntary.
With respect to the defendant’s assertion that his Sixth
Amendment rights were violated as it pertains to state-
ments and confessions made to the West Windsor police,
the evidence, the credible evidence clearly establishes that
except for the consent to search all statements and confes-
sions made by this defendant to the West Windsor Police
Department were given prior to the municipal court ar-
raignment, the first adversarial judicial proceeding.
With respect to the statements and confessions [120]
made to the West Windsor police authorities the
defendant’s Sixth Amendment rights were not violated.
Interrogations do not constitute an adversary judicial pro-
ceeding under Rule 3:4-1.
With respect to the interrogation of the defendant by
the Middlesex County police authorities, the credible evi-
dence establishes beyond a reasonable doubt that the police
authorities gave the defendant his Miranda warnings more
than once in writing and verbally before the interrogations
and that the defendant intelligently and knowingly waived
his constitutional right. The defendant made statements
to the Middlesex County law enforcement authorities after
the Superior Court arraignment and certainly after the
municipal court arraignment.
The State cites State versus Porter which allows them
to question this defendant about the Middlesex County
murder notwithstanding the fact that he had two prior
arraignments, because the investigation pertaining to the
50a
interrogation by the Middlesex County law enforcement
officers did not pertain to the subject matter of those two
arraignments, and they contend, and they are right, Porter
allows it.
The defendant was arraigned on the Mercer County
charges, questioned by the Middlesex County law [121]
enforcement officials on matters pertaining to the Middle-
sex County murder, as I indicated, which is lawful and
permissible.
In addition to giving the defendant his Miranda warn-
ings severa! times which included his right to counsel, the
municipal court judge who conducted the arraignment to
the defendant on the municipal level, on the Mercer County
charges, fully advised him of his right to counsel. This
defendant, after being told by two judges, several police
officers on numerous occasions of his right to counsel never
exercised that right. He requested an attorney for the first
time after he had confessed to the Middlesex County law
enforcement officials and when an effort was made by the
police authorities, I believe, to transcribe it through the
word processor, and I might say the evidence established
testimonially was that as soon as he made that request
all interrogation ceased immediately.
There was some reference, and I want to acknowledge
this, Mr. Justin, Mr. Justin also gave the Court, and I
believe a copy to the Prosecutor, of the decisions rendered
in State versus Parson, 83 New Jersey Superior 430 and
State versus Vayder, 114 New Jersey Superior 260, I’m
not sure, I think they may [122] have been two Middlesex
County cases, I know at least one was.
MR. JUSTIN: That’s correct.
THE COURT: In these two cases that was furnished
to the Court, it’s not mentioned in the brief but I want
the record to show we did get these decisions that ycu
did make reference to in your presentation, Mr. Justin,
———
5la
that both cases dealt basically with the execution of search
warrants.
The Court in both of these cited cases was dealing fac-
tually with a situation wherein it was alleged two searches
were conducted under one search warrant, and in the Par-
son case, as I recall, there were two separate searches
about four or five days apart but one search warrant and
that court said, no, you can’t do that, only one search for
ene search warrant.
However, Vayder, the second cited case, dealt with a
different fact pattern. In that case they cited and recog-
nized the Parson ruling of only one search under one search
warrant but said that in the Vayder case that they didn’t
have two searches under one search warrant, that when
they went out to the Highland Park fire initially that was
investigation that was not a search but when they went
the second time it was a [123] search, so in reality you
only had one search under one search warrant, and I bring
that out, and now with respect to the assertion that the
trunk was opened twice, I think when you look at all the
facts in this case, when you consider what happened when
it was opened the first time, how it was left open and
how much time transpired and what took place and why
it was opened again, you are dealing basically here, I think,
factually, with one, assuming for a moment I accept your
analogy and that is when the law says one search under
one search warrant that that also should mean or be ex-
tended to one search under one consent, assuming and
conceding that just for a moment so I can make my point,
you've had here basically one search under one valid con-
sent. ;
I want to comment on that because you did bring it up,
Mr. Justin.
MR. JUSTIN: Thank you, Judge.
THE COURT: Based on all the credible evidence pre-
sented as well as the applicable law this Court finds and
52a
determines that the State proved beyond a reasonable
doubt that the defendant was fully advised of his consti-
tutional rights, knowingly and intelligently waived them
and also the State’s proved beyond a reasonable doubt
that all of the defendant’s [124] statements, confessions
were voluntarily made. None of the defendant’s constitu-
tional rights were violated.
Accordingly, the motion to suppress the statements and
confessions challenged by the defense made by the
defendant to both the Middlesex and the Mercer County
police law officials is denied, and also I deny the motion
of the defense to suppress the physical evidence seized
pursuant to the valid consent to search, the warrantless
search and the searches pursuant to the search warrant.
Thank you gentlemen.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.