# Petition for Writ of Certiorari — New Jersey v. Harvey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 931

## Text

Cy FIL.
90-11 42

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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.

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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. 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
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~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

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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.

——————— ©& 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1536%3A1. Public record. Not legal advice.