Opposition Brief — New Jersey v. Harvey

No. 90-1142

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

STATE OF NEW JERSEY, Petitioner,

Vv.

NATHANIEL HARVEY, Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION

WILFREDO CARABALLO

Public Defender

Attorney for Respondent

31 Clinton Street

Newark, New Jersey 07101

JOAN D. VAN PELT

Deputy Public Defender

Appellate Section

Counsel of Record

J. MICHAEL BLAKE

Assistant Deputy

Public Defender

On the Brief

QFFILY

We

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1990

STATE OF NEW JERSEY, Petitioner,

NATHANIEL HARVEY, Respondents.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

I, Nathaniel Harvey, being duly sworn according to law, depose

and say that I am the respondent in the above-entitled case; that

out being required to prepay

, I state that because of my

unable to pay the c

the responses which I have made to the

instructions below relating to my ability to pay the

Mw He cueen |

l.

NO

2. Have you received

ve

from a business, profession or

the form of rent payments,

Are you presently employed?

7

men

fithin the past twelve mo

nths any income

other form of self-employment, or in

interest, dividends or other sources?

NO

3. Do you own any cash or checking or savings account?

NO

4. Do you own any real estate, stock, bonds, notes,

automobiles or other valuable property excluding ordinary

household furnishings and clothings)?

NO

5. List the persons who are dependent upon you for support

and state your relationship to those persons

NO

I understand that a false statement or answer to any questions

in this affidavit will subject me to penalties for perjury

if — “2 ya eas A Ml

NATHANIEL HARVEY

Subscribed and Sworn to before me

this day of ,» ads

QUESTION PRESENTED

Whether this Court has jurisdiction or should exercise

jurisdiction to review a decision of the New Jersey Supreme Court

which is alternatively and plainly based on an adequate and

independent state ground?

TABLE OF CONTENTS

Opinions BELOW... . eee eee cere renee een e ee eees

Ceuetaman? OF ENG COBB. . acc eee eee eee eee HE ee

Summary of

Reasons for Denying the Writ........-2eereees

I.

II.

Conclusion

ATGUMENLC.... eee reer eee e ene eeennns

THIS COURT MUST DECLINE JURISDIC

TION BECAUSE THE NEW JERSEY

SUPREME COURT DECISION IS CLEARLY

SUPPORTED BY ADEQUATE AND INDEPEN-

DENT STATE GROUNDS... ... 222 e eee eees

THE NEW JERSEY SUPREME COURT COR-

RECTLY DETERMINED AS A MATTER OF

FEDERAL LAW THAT MR. HARVEY'S CON-

FESSION WAS UNCONSTITUTIONALLY

OBTAINED DUE TO THE FAILURE OF THE

POLICE TO SCRUPULOUSLY HONOR HIS

REQUESTS TO REMAIN SILENT.........-.-

i eee i ee i a ae oe ee ae ae ee ee ae Se Bae eS Se BS OLS Se @

PAGE _NOS.

3

4

TABLE OF CASES CITED

PAGE NOS.

California v. Freeman, ie FP , 109

Dates We COMM 6 664604604 o RS OO ROR SRA DS 13

California v. Ramos, 463 U.S. 992 (1983)..... 14

Commonwealth v. Busey, 486 Pa. 221, 404 A.2d

Ee REPENS. 6446 C6 CARSSEREKEA NERS ON SSSR OR 12

Cooper v. California, 368 U.S. 58 (1967)..... 14

Harris v. Reed, uU.8. » 803 §S.Ct.

Se CS 6.6 60s 6660626 Owes 6 0KO SSO 95405 8

Here vv. Pitceeizn, 324 U.S. LiF (1965). ccccces 15

International Longshoreman's Ass'n v. Davis,

SOF Gels BOW CEOS) 6 occa caccidensunvcees 14

Lego v. Twomey, 404 U.S. 477 (1972).......... 14

Michigan v. Long, 463 U.S. 1032 (1983)....... es 200 Eee

iS

Michigan v. Mosley, 423 U.S. 96 (1986)....... 18

|

Miranda v. Arizona, 384 U.S. 436 (1966)...... 18 |

New Jersey v. Portash, 440 U.S. 450 (1979).. 15

North Carolina v. Butler, 441 U.S. 369

Bb | reer TTT ETT CTT CLT eee 12

Oregon v. Hass, 420 U.S. 714 (1975).......... 14

People v. Ramos, 37 Cal. 3d 136, 207 Cal.

Rptr. 800, 689 P.2d 430 (i984).......... 14

Pruneyard Shopping Center v. Robbins, 447

Was CH COPTER CSS ON AK OOS KORO ER EOD HRH ODES 14

Russell v. Lynaugh, 892 F.2d 1205 (5th Cir.

BD 60.0686 6006 O68 h 6606S O6ORS SO 6E CRONE 10, 12

TABLE OF CASES CITED (cont'd)

PAGE NOS.

Southern Burlington County NAACP v. Town-

ship of Mt. Laurel, 67 N.J. 151, 336

Blt Be oy ) Tee TT eee 17

State v. Ball, 124 N.H. 226, 471 A.2d 347

Cl bh RAP CTT 20

State v. Bey, 122 N.J. 45, 548 A.2d 846

bh) TTT CTCL ULE LE 18

State v. Bey, 112 N.J. 123, 548 A.2d 887

el) RAAT TET LEC 18

State v. Hartley, 103 N.J. 252, 511 A.2d

BS CAPBS Pox ccm e eee e ecw eres eresecseses 6, 8, 16

State v. Novembrino, 105 N.J. 95, 519 A.2da 820

Cll yd PPP PTTL LE 13

State v. Von Bulow, 475 A.2d 995 (R.I. 1984)

cert. denied 469 U.S. 875 (1984)........ 12

Township of Mount Laurel v. Southern Burling-

ton County NAACP, 423 U.S. 808 (1975)... 16

CO STITUTIONS CITED

U.S. Const. Amend. V.....s © cevvenscvvcscees 18

SR Re (Fa OME 8 RP ee ee ee eee 18

OTHER AUTHORITIES CITED

Brennan, State Constitutions and the Protections

of Individual Rights, 90 Harv. L.Rev. 489

R.BO CLP dcccecdedeeeeeees 60608065 eee6 46 14

Pollock, Adequate and Independent State Grounds

as a Means of Balancing The Relationship

between State and Federal Courts, 63 Tex.

L.-REV.977 (1985S). ccc eee even nveenveesevees 12, 16

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1990

No. 90-1142

STATE OF NEW JERSEY, Petitioner,

Vv.

NATHANIEL HARVEY, Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE UNITED STATES

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Respondent, Nathaniel Harvey, respectfully submits that a

writ of certiorari to review the judgment and opinion of the New

Jersey Supreme Court in State v. Harvey, 121 N.J. 407, 581 A.2d

483 (1990), is unnecessary and should not issue.

The New Jersey Supreme Court reversed the defendant's

capital murder conviction and ruled that his confession could not

be introduced at his retrial. The court relied on its previous

decision in State v. Hartley, 103 N.J. 252, 511 A.2d 80 (1986), .

which established as a matter of state law a bright line rule

that "failure to readminister Miranda warnings before

interrogation an accused who has previcusly invoked the right to

Silence will invariably result in a finding that the right has

not been scrupulously honored." 103 N.J. at 279, 511 A.2d at 94.

= l =

The New Jersey Supreme Court did not reach Mr. Harvey's

contention that his confesson was involuntary. 121 N.J. at 425,

581 A.2d at 491 (App. A at 15)

OPINIONS BELOW

The opinion of the New Jersey Supreme Court is reported at

121 N.J. 407,%581 A.2d 483 (1990).

STATEMENT OF THE CASE

Nathaniel Harvey was charged by Middlesex County Indictment

Number 568-11-85 with the June 1985 murder of Irene Schnapps in

Plainsboro, New Jersey.

On October 28, 1985, Nathaniel Harvey was arrested in West

Windsor Township on unrelated charges of kidnapping and burglary.

He remained in police custody and was questioned about several

crimes including the murder of Irene Schnapps.

On the morning of October 30, 1985, Harvey was arraigned in

the Mercer County Court House before 10:00 a.m. At 10:15 a.m.

Detectives Rizzo and Zimmerman of the Middlesex County

Prosecutor's Office arrived at the Mercer County jail. They came

to interrogate Harvey but whether he was advised of his Miranda

rights during this session is unclear. Rizzo initially testified

that Harvey was not advised of his rights, though he subsequently

maintained that the Miranda card Harvey signed the previous

evening was read to him. Rizzo's report does not mention that

Harvey was advised at this morning session. (T 38-2 - Sept. 15);

(T 46-5 - Sept. 15) Rizzo's testimony, and report, however were

clear with respect to what Harvey told the detectives. Harvey

said "I'll tell you about the murder but first I want to see my

father." (T 14-1 to 15-20 - Sept. 15) They "stopped talking to

him," (T 14-10 - Sept. 15), and arranged for Harvey's father to

be brought to the jail. However, while waiting the two hours it

took to bring defendant's father, the detectives sat with Harvey

and "spoke about things in general." (T 14-15 - Sept. 15)

detectives sat with Harvey and "spoke about things in general."

(T 14-15 - Sept. i5)

Investigator Baez of the Middlesex County Prosecutor's

Office picked up Robert Harvey at his job, and brought him to the

jail. Arrangements were made for father and son to speak at the

Mercer County Prosecutor's Office. At 2:15 p.m. they finally had

the opportunity to be alone, and spoke to one another for 15 to

20 minutes. (T 35-7 to 21 - Sept. 15) Nathaniel Harvey told his

father that he did not commit the murder he was being questioned

about, (T 43-6 - Sept. 16), and that the police at West Windsor

Headquarters had hit him a few times. His father saw bruises on

his son's face. (T 42-17 - Sept. 10) Nathaniel Harvey had

previously told Detective Smith that he had been struck by the

police. (T 134-13 - Sept. 12)

As Robert Harvey came out of the room his son was being held

in, Rizzo and Zimmerman entered. They asked for the details of

the murder, without providing any Miranda warning, not even a

"reminder," and were given information and answers about the

crime for the next 40 minutes (? 15-25 to 16-25; T 36-i to 23 -

Sept. 15) No simultaneous record of this confession was made, so

the detectives arranged to move into a room with a word process-

ing operator who was instructed to type an interrogation. It,

however, proceeded only as far as the Miranda warnings because

Harvey requested a lawyer. (T 39-22 - Sept. 15) So the detec-

tives arranged to return Harvey to the County Jail, and five days

a ee

In his appeal which was decided by the New Jersey Supreme

Court, defendant asserted both that his statements were involun-

tary and that they were obtained after the police failed to

scrupulously honor his assertion of his right to remain silent in

violation of the rule set forth in State v. Hartley, 103 N.J.

252, 511 A.2d 80 (1986). The New Jersey Supreme Court held that

the Hartley rule did bar the introduction of the defendant's

confession and that the court need not consider defendant's claim

that his confusion was involuntary. 121 N.J. at 425, 581 A.2d at

491. (App. A. at 15)

SUMMARY OF ARGUMENT

Because the decision of the New Jersey Supreme Court is

plainly based on a bona fide adequate and independent state

ground, this Court should deny the petition. The decision of the

New Jersey Supreme Court also correctly applies federal

constitutional law to the facts of the present case and does not

present an important question of federal law which has not been

but should be settled by the United States Supreme Court.

REASONS FOR DENYING THE WRIT

I. THIS COURT MUST DECLINE JURISDICTION

BECAUSE THE NEW JERSEY SUPREME COURT

DECISION IS CLEARLY SUPPORTED BY ADE-

QUATE AND INDEPENDENT STATE GROUNDS.

There is nothing ambiguous about the intention of the New

Jersey Supreme Court to rely upon state law as an alternative

basis for its decision in this case and in its decision in State

v. Hartley, 103 N.J. 252, 511 A.2d 80 (1983), which is the basis

for its decision to suppress Mr. Harvey's confession. The

prosecutor does not contend that either the Hartley decision or

the Harvey decision does not contain a plain statement that its

decision rests upon adequate and independent state grounds. What

the prosecutor does contend, however, is that the New Jersey

Supreme Court is being deceitful, is engaged in a sham and is

wrong in its decision on a question of state law. (SP 19) The

prosecutor's argument is nothing less than an assault on the

authority of the New Jersey's court to interpret its own state

D 4

iaw

The plain statement rule of Michigan v. Long 463 U.S. 1032,

1042 (1983) was recently reiterated and explained in Harris v.

Reed, 489 U.S. 225, 109 S.Ct. 1038 (1989). The Reed decision

held that the Michigan v. Long plain statement rule applied in

cases on Federal habeas review as well as in cases on direct

review in the Supreme Court. Id. at 103 S.Ct. 1040. The Reed

decision explained that the Michigan v. Long rule was formulated

to avoid difficulties that occur due to ambiguity in the state

court's opinion. The Reed decision explained that the Supreme

Court:

long has held that it will not consider an

issue of federal law on direct review from a

judgement of a state count if that judgement

rests on a state law ground that is both

"independent" of the merits of the Federal

Claim and an "adequate" basis for the court's

decision.

489 U.S. at 260.

Because this determination may be made difficult by ambigu-

ity in the state court's opinion the Supreme Court set forth the

plain statement rule:

Under Long, if “it fairly appears that the

state court rested its decision primarily o

federal law", this Court may reach the feder-

al question on review unless the state

court's opinion contains a "plain statement

that [its] decision rests upon adequate and

independent state grounds.” Id. at 1042, 10

S.Ct. at 3477.

489 U.S. at 261. (emphasis supplied) The Hartley decision is

Clearly based on alternative grounds, both federal constitutional

law and the state common law privilege against self-

Lo 9)

incrimination. 103 N.J. at 256, 260, 261, 263, 268, 271, 27

4)

‘?)

a

279, 284, 285, 286; 511 A.2d at 82, 8&4, 85, 88, 90, 94,

(1986). The Reed decision makes clear that a state court may

cq?

reach and decide the federal question in the alternative

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State law question. However the decision on the

will not permit review by this Supreme Court when the state

court's opinion contains a plain statement that its decision

relies upon adequate and independent state grounds.

The Reed decision further explained that:

- g -

A state court need not fear reaching the

merits of a federal claim in an alternative

holding. By its very definition, the

adequate and independent state ground

doctrine requires the federal court to honor

a state holding that is a sufficient basis

for the state court's judgement, even when

the state court aiso relies on federal law.

See Fox Film Corp. v. Muller, 296 U.S. 207,

210, 56 S.Ct. 183, 194, 80 L.Ed. 158 (1935).

489 at 264 n.10. (emphasis supplied) In this case, as in

Hartley, the State Supreme Court reached the merits of the

federal claim in an alternative holding. 121N.J. at 421, 581

A.2d at 489 (App. A. at 12) The prosecutor is asking this Court

to refuse to honor a state court holding based on state law by

asserting that the holding is a sham and is incorrect as a matter

of state law. Such a request defeats the purpose of the plain

statement rule because it would require the federal court to

conclude that the state supreme court erred on the state law

issue before deciding to consider the federal Constitutional

issue. This court in Long stated that the plain statement rule

would “obviate in most instances the need to examine state law in

order to decide the nature of the state court decision." 463 U.S.

at 1042.

A recent decision of the Fifth Circuit premised on Michigan

v. Long in a capital murder case supports respondent's argument.

In Russell v. Lynaugh, 892 F.2d 1205 (5th Cir. 1989), the court

held that

{[rjespect for the independence of state

courts has been one of the primary

cornerstones for the refusal of federal

° courts to decide cases where there is an

/ adequate and independent state ground.

= 10 ~

Michigan v. Long, 103 S.Ct. at 3476. We do

not know how that Texas Court of Criminal

Appeals could have been clearer in asserting

an independent state ground as a basis for

rejecting the Witherspoon claims in this

case. To ignore this emphatically stated

basis for the state court's ruling stated on

three occasions in its ruling would certainly

exhibit disrespect for the judgement of the

state court and its right as an independent

judiciary to apply its own constitutionally

proper laws in deciding its own cases.

O

oo

2

D

J

T

Id. a- 1211. Respondent submits that the Hartley decisi

to great iengths to be clear in its assertion that its decision

was based on adequate and independent state grounds. The Hartley

decision explicitly states that

To the extent that we rely on Federal

precedent in reaching our state law deci

we do so only for the purpose of guidanc

recognizing that those precedents may no

compel the resuit we reach today. See

Michigan v. Long, 436 U.S. at 1041, 103 S.Ct.

at 3476, 77 L.Ed. 2d at 1214.

mown

121 N.J. at 286, 511 A.2d at 98. The New Jersey Court was

Clearly relying upon the direction of this court in Long that

if a state court chooses merely to rely on

federal precedents as it would on the

precedents of all other jurisdictions, then

it need only make clear by a plain statement

in its judgement or its opinion that the

federal cases are being used only for the

purpose of guidance and do not compel the

result that the court has reached. In this

way, oth justice and judicial administration

will pe greatly improved. If the state court

decision indicates clearly and expressly that

it is alternatively based on bona fide

separate, adequate, and independent grounds

were of course will not undertake to review

that decision.

Ll

————— ee

463 U.S. at 1042.° Respondent submits that observations of

Russeli v. Lynaugh, supra, decision regarding the exhibition of

disrespect for the judgement of state courts can clearly be

discerned in the prosecutor's petition, which reeks with

disrespect for the New Jersey Supreme Court.

The prosecutor asserts that this case is North Carolina v.

Butler, 441 U.S. 369 (1979), revisited. (SP 7) However, in that

decision the North Carolina court did not rely upon state law but

relied only upon the United States Constitution. The prosecutor

neglects to mention the footnote which was appended to the

portion of the opinion he quotes. This Court stated that, "By

the same token this Court must accept whatever construction of a

state constitution is placed upon it by the highest court of the

state." Id. at 377, n.7.° This footnote is consistent with

numerous decisions that have held that the United States Supreme

Court will accept the ruling of a state's highest court as to

* Prior to the court's decision in Hartley, N.J. Supreme Court

Justice Stewart Pollock in an article concerning the Michigan v.

Long, decision concluded that "[t]o avoid Supreme Court review of

a decision based on its state constitution, a state court

discussing federal law must make a plain statement that it used

federal law for guidance only". Pollock, "Adequate and Independent

State Grounds as a Means of Balancing The Relationship between

State and Federal Courts' 63 Tex. L Rev. 977, 999 (1985) Justice

Pollock relied upon an opinion of the New Hampshire Supreme Court

State v. Ball 124 N.H. 426, 471 A.2d 347 (1983 and an opinion of

the Rhode Island Supreme Court concerning which this Court denied

the state's petition for certiorari. State v. Von Bulow, 475 A.2d

995 (R.I. 1984) cert. denied 469 US. 875 (1984)

“ Respondent also notes that the Supreme Court of Pennsylvania

has, pursuant to its supervisory powers and based on its

interpretation of the Pennsylvania Constitution, refused to follow

North Carolina v. Butler, in Commonwealth v. Busey, 486 Pa. 221,

404 A.2d 1309, 1314 (1979).

= i =~

interpretations of state law.

Justice O'Connor, sitting as a

Circuit Justice, has recently observed in California v.

Freeman,

U.S. ’ , 109 S.Ct. 854, 856 (1989), that:

interpretations of state law by a state's

highest court are, of course, binding upon

this Court. O'Brien v. Skinner, 414 U.S.

524, 534, 94 S.Ct. 740, 743, 38 L.Ed.2d 762

(1974); Murdoch v. City of Memphis, 20 Wall.

590, 22 L.Ed. 429 (1875).

Clearly, the prosecutor has filed the present petition

the hope that this Court would not agree with the Hartley

decision's bright line requirement of fresh Miranda warnings

whenever police commence to reinterrogate a suspect who has

Even if

previously invoked his right to remain silent. one

assumes the prosecutor is correct, a contrary ruling by

Court would not require the New Jersey Supreme Court to

ruling based on state law. The New Jersey Supreme Court "has

frequently resorted to [its] own state constitution in order

afford [its] citizens broader protection of certain personal

rights than that afforded by analogous or identical

the federal Constitution." State v. Novembrino, 105

519 A.2d 820, 849 (1987). There can be no dispute that:

A state is free as a matter of its own law to

impose greater restrictions on police

activity than those this Court holds to be

necessary upon federal constitutional

standards. See, e.g., Cooper v. California,

386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 LEd.2d

730 (1967); Sibron v. New York, 392 U.s. 40,

* This court subsequently denied the petition for certior

and denied a motion

(1989).

U.S.

rehearing,

109 S.Ct.

es

1133 (1989)

109 S.Ct. 1660

13

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ari

ap

for

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60-61, 88 S.Ct. 1884, 1901-1902, 20 L.Ed.2d

417 (1968).

Oregon v. Hass, 420 U.S. 714, 720 (1975) (emphasis in original).

This Court in California v. Ramos, 463 U.S. 992, 1015 (1983),

noted that "[it] is elementary that states are free to provide

greater protections in their criminal justice systems than the

federal Constitution requires." See also Pruneyard Shopping

Center v. Robbins, 447 U.S. 74, 82 (1979); Lego v. Twomey, 404

U.S. 477, 489 (1972); Cooper v. California, 368 U.S. 58, 62

(1967). With regard to such state court decisions, former

Justice William Brennan has written:

the State decisions not only cannot be

overturned by, they indeed are not even re-

viewable by the Supreme Court of the United

States.

We are utterly without jurisdiction to

review such decisions. The Supreme Court's

jurisdiction over state cases is limited to

the correction of errors related solely to

questions of federal law: it cannot review

state court determinations of state law even

when the case also involves federal issues.

Murdock v. City of Memphis, 87 U.S. (20 Wall)

590 (1875). Moreover, if a state ground is

independent and adequate to support a

judgment, the Court has no jurisdiction at

all despite the presence of a federal issue.

Brennan, "State Constitutions and the Protections of Individual

Rights," 90 Harv. L.Rev. 489, 501, n.80 (1977). See also Inter-

national Lonqshoreman's Ass'n v. Davis, 467 U.S. 380, 388 (1986).

If this Court was to grant certiorari and overrule the New

Jersey Supreme Court's ruling based on federal constitutional

Defendant notes that the California Supreme did so when it

decided the case on remand. People v. Ramos, 37 Cal. 3d 136, 207

Cal. Rptr. 800, 689 P.2d 430 (1984).

- 14 -

law, the decision as to application of state law would still

stand. This Court would have issued an advisory opinion. On

remand the New Jersey court would reverse the conviction on the

basis of the New Jersey common law right against self-

incrimination. "This is precisely the result that the doctrine

of adequate and independent state grounds seeks to avoid."

California v. Freeman, U.S. at 109 §.Ct. at 856.

Justice O'Connor in the Freeman decision, Justice Brennan in the

above cited article and the Michigan v. Long opinion, 463 U.S. at

1043, all rely upon Herb v. Pitcairn, 324 U.S. 117, 126 (1945),

for the proposition that the United States Supreme Court should

not render advisory opinions by correcting a state court's view

of federal law when the same judgment would be rendered on the

basis of state law.

The prosecutor's argument that Hartley created the New

Jersey common law privilege against self-incrimination upon a

misinterpretation of federal law is meritless. As explained in a

concurring opinion to this Court's decision in New Jersey v.

Portash, 440 U.S. 450, 461 (1979) (Brennan, J., concurring):

The privilege against self-incrimination

is not set out in the New Jersey

Constitution. Its origins are instead to be

found in the common law, see State v. Fary,

19 N.J. 431, 434-435, 117 A.2d 499, 501-502

(1955), and in statutes. See N.J.Stat.Ann.

sec. 2A:84A-19 (West 1976). Although New

Jersey courts have looked to constructions of

the Fifth Amendment of the Federal

Constitution as a source of illumination for

the interpretation of the state privilege,

see In re Pillo, 11N.J. 8, 15-17, 93 A.2d

176, 179-180 (1952), they have also held that

the interpretation of that privilege is "a

- 15 -

matter of state law and policy, as to which

[New Jersey] may impose standards more strict

than required by the federal Constitution,

which standards will control regardless of

the final outcome of the question in the

federal sphere." State v. Deatore, 70 N.J.

100, 112, 358 A.2d 163, 170 (1976). Cf. State

v. Jchnson, 68 N.J. 349, 353, 346 A.2d 66,

67-68 (1975).

The prosecutor's contention that the Supreme Court of New

Jersey has endeavored to alter federal constitutional law is

Clearly erroneous. The New Jersey Supreme Court's resolution of

that issue, while it surely may be considered persuasive, is not

binding on any federal court or court of another state. New

Jersey's highest tribunal has considered the prosecutor's

argument that the rule established in Hartley will lead to

"“societally counterproductive results" and has rejected it as a

matter of state law. No pressing question of federal law

requires that this case be reviewed by the United States Supreme

Court.

The prosecutor's efforts to strip the New Jersey Supreme

Court of its sovereign authority to protect the rights of its

citizens on basis of its interpretation of state law must be

rejected. Strong reasons for this have been set forth by Justice

Stewart Pollock:

Deference by the United States Supreme Court

to state court decisions based on state law

has become an integral part of federal

jurisprudence. This principle is crucial

also to the vitality of the partnership

between state and federal courts. By

respecting such judgments, the high court

honors state courts as partners in the

federalist system especially when the federal

= 16 _

OOO.

constitution would lead to a different

result.

Pollock, supra, 63 Tex. L.Rev. at 980. Therefore, as in Township

of Mount Laurel v. Southern Burlington County NAACP, 423 U.S. 808

(1975), the petition should be denied "for want of jurisdiction."

Id. In that case this Court declined to review Southern

Burlington County NAACP v. Township of Mt. Laurel, 67 N.J. 151,

336 A.2d 713 (1975), which was decided on the basis of the New

Jersey state constitutional requirements of substantive due

process and equal protection of the laws.

II THE NEW JERSEY SUPREME COURT CORRECTLY

DETERMINED AS A MATTER OF FEDERAL LAW

THAT MR. HARVEY'S CONFESSION WAS

UNCONSTITUTIONALLY OBTAINED DUE TO THE

FAILURE OF THE POLICE TO SCRUPULOUSLY

HONOR HIS REQUESTS TO REMAIN SILENT.

The use of Mr. Harvey's oral confessions and statements at

trial violated his fundamental right not to be compelled to be a

witness against himself, as they were obtained after police

failed to scrupulously honor his assertion of his right to remain

Silent. U.S. Const. Amend. V; U.S. Const. Amend. XIV; Miranda v.

Arizona, 384 U.S. 436 (1966); Michigan v. Mosley, 423 U.S. 96

(1986).

The New Jersey Supreme Court's decision in this case as was

its decisions in State v. Hartley, 103 N.J. 252, 511 A.2d 80

(1986), State v. Bey, 122 N.J. 45, 548 A.2d 846 (1988) (Bey I)

and State v. Bey, 112 N.J. 123, 548 A.2d 887 (1988) (Bey II), is

a correct application of Michigan v. Mosley, 423 U.S. 96 (1975).

The police in this case failed to scrupulously honor Mr. Harvey's

requests to remain silent. Therefore, his confession must be

Suppressed. There is no need for this Court to grant the

prosecutor's petition to review a decision squarely premised on

this Court's decision in Michigan v. Mosley. The New Jersey

Supreme Court in this case has not decided an important question

of federal law which has not been, but should be settled by the

United States Supreme Court. Nor has it decided a federal

question in a way that conflicts with applicable decisions of

this Court.

CONCLUSION

For the foregoing reasons, respondents submit that this

Court should deny petitioner's petition for a writ of certiorari.

Respectfully submitted,

WILFREDO CARABALLO

Public Defender

Attorney for Defendant

| :

q “ a

BY: Dar D. os Ken a

JOAN D. VAN PELT

\ Deputy Public Defender

Counsel Of Record

J. MICHAEL BLAKE

Assistant Deputy

Publi- Defender

On the Brief