RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1955-16T2
STATE OF NEW JERSEY IN THE INTEREST OF I.G.S.
__________________________________
Argued June 6, 2017 – Decided September 1, 2017
Before Judges Ostrer, Leone, and Vernoia.
On appeal from an interlocutory order of the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-869-16.
Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant State of New Jersey (Grace H. Park, Acting Union County Prosecutor, attorney; Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Susan Green, First Assistant Deputy Public Defender, argued the cause for respondent I.G.S. (Joseph E. Krakora, Public Defender, attorney; Ms. Green, of counsel and on the brief).
PER CURIAM
We granted the State leave to appeal a November 21, 2016
ruling suppressing juvenile I.G.S.'s statement to police. Because the motion court premised its ruling on several legal errors, we
vacate and remand for consideration free of those errors.
I.
The following facts come from the motion court's opinion, the
translated transcript of the video-recorded interview, and the
hearing testimony. On April 6, 2016, the State received a referral
from the Division of Child Protection and Permanency concerning
allegations that I.G.S. committed a sexual assault against his
six-year-old cousin J.G.
On April 8, 2016, Detective Keyla Live conducted a video-
recorded interview of J.G., who said I.G.S. sexually assaulted her
in his home. Live contacted I.G.S.'s mother and asked to take a
statement from him because J.G. accused him of sexual assault.
Live transported I.G.S. and his mother from his school to an
interview room in the prosecutor's Child Advocacy Center. His
mother remained with him throughout.
I.G.S. was fourteen years old and in the seventh grade. He
and his mother had come to the United States from Guatemala in
December 2015, and their native language was Spanish. I.G.S. knew
how to read and write in Spanish and understood some English.
Detective Live, a native Spanish speaker, conducted the entire
interview in Spanish and used a Spanish-language juvenile-rights
form.
2 A-1955-16T2 Detective Live advised I.G.S. and his mother that J.G. alleged
he touched her inappropriately, that Live wanted to talk to I.G.S.
about that allegation, and that was why his mother was present.
Live told I.G.S. and his mother that juveniles had rights in the
United States and that I.G.S. should understand his rights before
Live asked any questions.
Detective Live gave I.G.S. a juvenile-rights form written in
Spanish and instructed him to read it aloud in Spanish and tell
her if he understood his rights. Live also gave a copy of the
Spanish-language juvenile-rights form to I.G.S.'s mother and
confirmed that she could read Spanish.
I.G.S. read each of his rights aloud, was asked if he
understood each one, and answered, wrote, and initialed that he
understood each one. He confirmed orally and in writing he
understood that he had the right to remain silent, that anything
he said could be used against him in court, and that he had the
right to have his mother, father, or guardian present before and
during his interrogation.
I.G.S. also confirmed orally and in writing he understood
that he had the right to consult and receive advice from an
attorney before any questioning and to have an attorney present
during the interrogation. I.G.S. further confirmed orally and in
writing he understood that he had the right to consult and receive
3 A-1955-16T2 advice from an attorney even if he could not afford one and that
if he wished to have an attorney and could not afford an attorney
one would be appointed to represent him.
Additionally, I.G.S. confirmed orally and in writing he
understood that he could decide at any time to exercise his rights
and not answer any questions, that he knew what his rights were,
that he knew and understood what he was doing, that no promises
or threats had been made to him, and that he had not been pressured
or coerced to waive his rights. When I.G.S. hesitated in reading
the word "coerced," Detective Live asked if he knew what "coerced"
meant, and then she defined it for him.
Detective Live asked I.G.S. to circle whether he did or did
not want an attorney to be present during the interrogation. Live
indicated it was I.G.S.'s decision, but I.G.S. "could speak with
him [sic]1 . . . . [i]f you want to make the decision together."
When I.G.S.'s mother replied they were going to speak with Live
first, Live responded that I.G.S. also had to make the decision.
I.G.S. said he would like an attorney present during the
interrogation and asked his mother if that was what she wanted.
His mother said no. Live asked I.G.S. again if that was what he
wanted, and he said yes.
1 The parties have treated this as a reference to I.G.S.'s mother. The transcript contains several pronouns which appear mistaken.
4 A-1955-16T2 As translated, Detective Live responded: "Okay. You want an
attorney. Okay. We cannot bring you an attorney now but you can
find one with your mother. We are done then."
I.G.S.'s mother reiterated she wanted Detective Live to speak
to him. Live responded:
That is why I brought you [sic] here but if he wants an attorney before I speak with him, I cannot speak with him. Understand me? And I don't want him to feel like he is obligated to speak with me without, if he wishes to have an attorney, it is his right. Do you want me to leave you alone and you can talk?
I.G.S.'s mother said yes. Detective Live initially left
I.G.S. and his mother alone in the interview room. Then Live came
back into the interview room and asked I.G.S. and his mother to
talk in the empty hallway, where their conversation would not be
recorded. Live said: "When you finish knock on the door, okay.
I am going to be on the other side."
After two minutes, I.G.S. and his mother knocked on the door.
Detective Live asked what happened. I.G.S.'s mother said he "would
like for you to interrogate her [sic] . . . without an attorney
present." Live asked I.G.S. if he was sure, and he said yes.
Live asked him if his mother was forcing him to do that, and he
said no. Live asked him if this was his own decision, and he said
yes.
5 A-1955-16T2 On the Spanish-language juvenile-rights form, I.G.S. crossed
out that he did, and circled that he did not, want an attorney to
be present. He initialed the change, signed that he was willing
to make a statement and answer questions without an attorney
present during the interrogation, and put the date and time. His
mother and Detective Live also signed and dated the form.
Detective Live asked if I.G.S. wanted his mother there when
Live spoke with him, and he said yes. I.G.S. answered Live's
questions. After initially denying anything occurred, I.G.S.
eventually said his six-year-old cousin put her hand in his pants,
he took his penis out, she caused him to ejaculate, and she had
him put his penis on her buttocks.
A juvenile delinquency complaint was filed charging I.G.S.
with aggravated sexual assault and sexual assault in violation of
N.J.S.A. 2C:14-2(a)(1) and (b). He filed a motion to suppress,
and the motion court held a Miranda2 hearing. The court watched
the video recording of the entire interview. The State called
Detective Live, who testified I.G.S. waived his Miranda rights and
gave his statement freely and voluntarily.
I.G.S. did not testify, but his mother testified as follows.
She did not know I.G.S. could get a court-appointed attorney, and
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
6 A-1955-16T2 she thought they would have to pay for an attorney. In the
hallway, she told I.G.S. they did not have the money to hire an
attorney, and he listened to her. If she had known he would get
a court-appointed attorney, she would have told him to wait to get
an attorney.
On cross-examination, I.G.S.'s mother said Detective Live
gave her a copy of the Spanish-language rights form and that I.G.S.
read and said he understood that "[i]f you would like a lawyer,
and you can't afford one, you can ask the Court and you will be
provided a lawyer to represent you." She testified "it was me who
didn't quite understood [sic] that," but she did not voice any
objections. On redirect, she said she did not understand the
court would give them a lawyer, did not know where she would get
a lawyer, and told I.G.S. "we can't afford a lawyer, you need to
talk."
The motion court ruled Detective Live failed to follow proper
procedures in administering the Miranda warnings. The court found
Live's failures led to I.G.S.'s mother's "misunderstanding about
the cost of legal representation that resulted in the juvenile-
defendant's waiver of his right to counsel." Accordingly, the
court concluded "the State has not met its burden in demonstrating
that the juvenile-defendant's self-incriminating statements were
a knowing, intelligent and voluntary waiver of his legal rights."
7 A-1955-16T2 II.
The State argues on appeal that the motion court erred in
granting I.G.S.'s motion to suppress. We must hew to our standard
of review. Generally, "appellate courts defer to the trial court's
factual findings because the trial court has the 'opportunity to
hear and see the witnesses and to have the "feel" of the case,
which a reviewing court cannot enjoy.'" State v. S.S., ___ N.J.
___, ___ (2017) (slip op. at 16) (citation omitted). Appellate
courts must also defer even to a trial court's "factfindings based
solely on video or documentary evidence," because of its
"experience and expertise in fulfilling the role of factfinder."
Id. at ___ (slip op. at 23, 25). An appellate court need not
defer "when factual findings are so clearly mistaken — so wide of
the mark — that the interests of justice demand intervention," or
when they "are not supported by sufficient credible evidence in
the record." Id. at ___ (slip op. at 27).
By contrast, "legal conclusions are subject to de novo
review." State v. Hreha, 217 N.J. 368, 382 (2014). "Because
legal issues do not implicate the fact-finding expertise of the
trial courts, appellate courts construe the Constitution,
statutes, and common law 'de novo – "with fresh eyes" – owing no
deference to the interpretive conclusions' of trial courts,
8 A-1955-16T2 'unless persuaded by their reasoning.'" S.S., supra, ___ N.J. at
___ (slip op. at 25) (citations omitted).
"[T]he framework for our trial courts to use when deciding
whether a confession given by a juvenile in a custodial setting[3]
was voluntary and therefore admissible in a delinquency
proceeding" was established by State v. Presha, 163 N.J. 304
(2000). State ex rel. A.W., 212 N.J. 114, 116 (2012). "Although
a suspect is always free to waive [Miranda rights] and confess to
committing crimes, that waiver must never be the product of police
coercion." Presha, supra, 163 N.J. at 313. Thus, "for a
confession to be admissible as evidence, prosecutors must prove
beyond a reasonable doubt that the suspect's waiver was knowing,
intelligent, and voluntary in light of all the circumstances. At
the root of the inquiry is whether a suspect's will has been
overborne by police conduct." Ibid. (citation omitted).
3 Miranda warnings are required only "after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." State v. Hubbard, 222 N.J. 249, 266 (2015) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706). "Miranda warnings are not required 'simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.'" Ibid. (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275, 1279-80 (1983)). The parties and the motion court have apparently assumed that I.G.S. was in "custody" and that Miranda warnings were required. We make the same assumptions, without deciding the issue.
9 A-1955-16T2 III.
The motion court based its suppression decision on several
legal rulings that Detective Live failed to follow proper
procedures in administering Miranda warnings. Those rulings were
erroneous.
A.
First, the motion court erroneously ruled Detective Live
erred by having I.G.S. read the Miranda rights aloud, rather than
read them aloud to I.G.S. Miranda did not require that police
read the rights to the suspect but simply that the suspect "be
warned" or be "informed" of those rights. Miranda, supra, 384
U.S. at 444, 467-68, 471, 478-79, 86 S. Ct. at 1612, 1624, 1626,
1630, 16 L. Ed. 2d at 706-07, 720, 722, 726. Miranda "warnings
may be given either orally or in writing." 2 LaFave, Israel, King
& Kerr, Criminal Procedure § 6.8(c), at 904 & nn.86-89 (4th ed.
2015) [hereinafter LaFave] (citing cases).4 "More commonly the
4 "[N]umerous other courts have found that it is not essential that the warnings required by Miranda be given in oral rather than written form." State v. Strobel, 596 S.E.2d 249, 253 (N.C. Ct. App. 2004), cert. denied, 545 U.S. 1140, 125 S. Ct. 2977, 162 L. Ed. 2d 889 (2005); see, e.g., United States v. Collins, 40 F.3d 95, 98 (5th Cir. 1994), cert. denied, 514 U.S. 1121, 115 S. Ct. 1986, 131 L. Ed. 2d 873 (1995); United States v. Alexander, 441 F.2d 403, 404 (3d Cir. 1971); State v. Olquin, 165 P.3d 228, 230 (Ariz. Ct. App. 2007), review denied (2008); Wise v. Commonwealth, 422 S.W.3d 262, 271 n.4 (Ky. 2013); People v. Warren, 770 N.Y.S.2d
10 A-1955-16T2 warnings are given orally by the officer reciting the provisions
from a 'Miranda card,'" but "giving the warnings in writing alone
will suffice" if it is "shown that the defendant could and did
read the warnings and that he acknowledged an understanding of
them." Id. § 6.8(c), at 904. Indeed, our courts have repeatedly
upheld waivers made by defendants who read their rights aloud.5
Here, the evidence showed I.G.S. "could and did read" the
Miranda warnings because he read each warning aloud. Moreover,
he acknowledged, orally and in writing, that he understood each
warning.
The motion court asserted the Child Advocacy "Center's policy
of having the accused read their Miranda rights is akin to a
scholastic reading comprehension exercise." That is not a valid
criticism. If I.G.S.'s reading of the Miranda warnings resulted
in his comprehension of those warnings, it achieved the goal of
266, 267 (App. Div. 2003), leave to appeal denied, 777 N.Y.S.2d 34 (2004). 5 See, e.g., State v. Adams, 127 N.J. 438, 442, 450 (1992) (finding, where the detective "gave defendant a form to read," "defendant read the first line aloud to demonstrate literacy," and defendant "then read the rest to himself," that defendant's "waiver regarding oral statements was knowing, intelligent, and voluntary"); State v. Messino, 378 N.J. Super. 559, 575, 577 (App. Div.) (finding, where "defendant was given a copy of the prosecutor's form and he was asked to read it aloud," "that the warnings provided to defendant were sufficient to inform him of the substance of his constitutional rights"), certif. denied, 185 N.J. 297 (2005).
11 A-1955-16T2 Miranda. Moreover, having I.G.S. read the warnings aloud allowed
Detective Live to see, hear, and correct indications I.G.S. did
not understand what he was reading. Thus, when I.G.S. hesitated
when reading the word "coerced," Live was able to correctly explain
the meaning of that word.
The motion court held that by having I.G.S. read the rights
aloud, Detective Live violated "the legal duty incumbent upon law
enforcement to read" the Miranda rights. The court cited State
ex rel. A.S., 203 N.J. 131 (2010), but took a statement from that
case out of context. In A.S., "[t]he police placed A.S.'s mother
in the role of their helper from the outset of the interrogation
process by making her read the child her rights." Id. at 136.
"[I]n less than a minute's time, [the mother] read the Miranda
form to A.S.; there was no further explanation given to A.S. of
her constitutional rights." Id. at 150. A.S. was not questioned
about each right individually; rather, the mother read all of the
rights and then "asked A.S. if she understood her rights. A.S.
nodded and said 'umm hmm.'" Id. at 138. "The police also failed
to correct the mother's later misstatements about those rights[.]"
Id. at 136, 150-51.
Indeed, the detective abdicated his responsibility in that regard by having [the mother] read A.S. her rights, a procedure which tainted the interview from its outset and must not be utilized in the future. It
12 A-1955-16T2 is a police officer's responsibility to read and to make sure that the juvenile understands his or her constitutional rights before proceeding with an interrogation.
[Id. at 149-50.]
The motion court relied on the latter sentence. However,
that sentence was part of the A.S. Court's "reject[ion of] the
practice of having a child's parent be responsible for reading to
the child his or her constitutional warnings," because "[t]he
parent is not present to assume the role and responsibility of the
police." Id. at 137, 150. Here, I.G.S.'s mother was not involved
in the reading of the Miranda rights.
The motion court mistakenly read A.S. as barring officers
from asking literate defendants to read their Miranda rights aloud.
That issue was not presented in A.S., because A.S. was never asked
to read her rights. Thus, the court erred in finding Live
improperly had I.G.S. read his rights aloud.
B.
Second, the motion court erroneously ruled Detective Live
failed to ensure I.G.S. had the information required by Miranda
when Live became "aware of the conflict between [his mother's]
intent to have the interrogation proceed without counsel and the
juvenile defendant's request for counsel." The court ruled it was
"incumbent upon Det. Live to advise I.G.S. and [his mother] of
13 A-1955-16T2 I.G.S.'s right to a court appointed attorney and of her duty not
to proceed with the interrogation until they had spoken to
counsel."
However, Detective Live did advise I.G.S. and his mother that
if he "wishes to have an attorney, it is his right," that if he
wanted an attorney "[w]e are done then," that "if he wants an
attorney before I speak with him, I cannot speak with him," and
that he was not "obligated to speak with me without" an attorney.
Importantly, Live promptly terminated the interrogation.
Moreover, only moments before, Detective Live had ensured
I.G.S. and his mother were informed of his right to court-appointed
counsel. Live had I.G.S. read aloud in his mother's presence the
juvenile form advising he had "the right to consult and receive
advice from an attorney even if you cannot afford one. If you
wish to have an attorney and cannot afford an attorney one will
be appointed to represent you."
That warning complied with Miranda, supra, which requires
that an officer convey to a defendant "that if he cannot afford
an attorney one will be appointed for him." 384 U.S. at 479, 86
S. Ct. at 1630, 16 L. Ed. 2d at 726; accord, e.g., Berghuis v.
Thompkins, 560 U.S. 370, 380, 130 S. Ct. 2250, 2259, 176 L. Ed.
2d 1098, 1110 (2010); State v. O'Driscoll, 215 N.J. 461, 476
(2013). That was also the appropriate warning for a juvenile
14 A-1955-16T2 defendant: "the [juvenile] and his parents must be notified of
[his] right to be represented by counsel retained by them, or if
they are unable to afford counsel, that counsel will be appointed
to represent [him]." State ex rel. P.M.P., 200 N.J. 166, 175
(2009) (quoting In re Gault, 387 U.S. 1, 41, 87 S. Ct. 1428, 1451,
18 L. Ed. 2d 527, 554 (1967)).
The motion court erroneously faulted Detective Live and the
juvenile form because they "did not specifically state that an
attorney will be provided free of cost." Such an elaboration is
not required. "Miranda v. Arizona does not require that a suspect
be advised of or understand that he will not ultimately bear any
liability for the cost of an attorney appointed to assist him
during custodial interrogation[.]" Sanchez v. People, 329 P.3d
253, 255, 258-61 (Colo. 2014) (citing cases); accord, e.g.,
Chambers v. Lockhart, 872 F.2d 274, 275 (8th Cir. 1989), cert.
denied, 493 U.S. 938, 110 S. Ct. 335, 107 L. Ed. 2d 324 (1989);
United States v. Montoya-Robles, 935 F. Supp. 1196, 1205 (D. Utah
1996); Batteaste v. State, 331 So. 2d 832, 834 (Ala. Crim. App.
1976); Commonwealth v. Hammer, 494 A.2d 1054, 1064 n.6 (Pa. 1985).
Our Supreme Court has found a knowing and intelligent waiver
of Miranda rights even though the Spanish-language Miranda card
stated: "You have the right to rent or hire an attorney." State
v. Mejia, 141 N.J. 475, 502-03 (1995). The Court agreed the card
15 A-1955-16T2 "could have more clearly apprised defendant of his right to a
court-appointed lawyer free of cost." Id. at 503. The Court
noted "[p]art of the problem is with the verb 'alquilar,' which
means 'to let, hire, rent.'" Ibid. Nonetheless, the Court
concluded that "[a]lthough the warning card might have used a
better verb, we cannot say that the card misled Mejia." Ibid.
Here, the Spanish-language juvenile-rights form accurately
conveyed the required warning. Indeed, the court reporter
translated the form as advising: "If you would like a lawyer, and
you can't afford one, you can ask the Court and you will be
provided a lawyer to represent you." I.G.S. stated he understood
his Miranda rights, and neither he nor his mother gave any
indication they did not understand those rights. Therefore, the
motion court erred in ruling Detective Live failed to give the
appropriate Miranda warnings.
C.
Third, the motion court erroneously ruled that, when I.G.S.
and his mother disagreed on whether he should speak without an
attorney, it was improper for Detective Live to ask them: "Do you
want me to leave you [two] alone and you can talk?" However, our
Supreme Court has held that "officers confronted with an ambiguous
invocation are authorized to make inquiry in order to clarify the
suspect's intent." State v. Diaz-Bridges, 208 N.J. 544, 569
16 A-1955-16T2 (2012). "[I]f the words amount to even an ambiguous request for
counsel, the questioning must cease, although clarification is
permitted; if the statements are so ambiguous that they cannot be
understood to be the assertion of a right, clarification is not
only permitted but needed." State v. Alston, 204 N.J. 614, 624
(2011). "In permitting questions that are meant to clarify whether
a Miranda right has been invoked, th[e] Court has reasoned that
'[such questioning] is not considered "interrogation" under
Miranda, because it is not intended to "elicit an incriminating
response from the suspect."'" Id. at 623 (quoting State v.
Johnson, 120 N.J. 263, 283 (1990)).
Clarification is proper "[w]hen a suspect's words are
ambiguous." Ibid.; cf. id. at 618, 626 (analyzing whether the
defendant's question to the interrogating officer "[s]hould I not
have a lawyer in here with me?," was an ambiguous request for
counsel). Ambiguity can also arise from the context in which the
words are spoken. See State v. Chew, 150 N.J. 30, 63 (1997)
(finding a defendant's request, as he was being arrested, "that
his mother contact his attorney was an equivocal invocation of the
right to counsel that had to be clarified before questioning could
take place"). Here, the ambiguity arose from the fact that
fourteen-year-old I.G.S. and his mother who was serving as his
17 A-1955-16T2 adult advisor disagreed over whether he should invoke the right
to counsel.
Our Supreme "Court has required that a parent have a
reasonable opportunity to 'consult' with her child regarding any
proposed waiver of Miranda rights." State ex rel. A.S., 409 N.J.
Super. 99, 112, 114 (App. Div. 2009), rev’d on other grounds, 203
N.J. 131 (2010). Such consultation with a parent is required
because "juveniles need assistance in understanding and deciding
whether to waive their rights." A.W., supra, 212 N.J. at 133.
That is particularly true for a younger juvenile. "[A] fourteen-
year-old boy . . . . cannot be compared with an adult in full
possession of h[er] senses" and needs "the aid of more mature
judgment as to the steps he should take in the predicament in
which he found himself." A.S., supra, 203 N.J. at 149 (quoting
Gallegos v. Colorado, 370 U.S. 49, 54, 82 S. Ct. 1209, 1212-13, 8
L. Ed. 2d 325, 328-29 (1962)).6
Our Supreme Court has stressed the "special significance" of
"[t]he role of a parent in the context of a juvenile
interrogation." Presha, supra, 163 N.J. at 314. "In that
circumstance, the parent serves as advisor to the juvenile, someone
6 Indeed, "[w]hen the juvenile is under the age of fourteen, the adult's absence will render the young offender's statement inadmissible as a matter of law – unless the adult is truly unavailable." Presha, supra, 163 N.J. at 322.
18 A-1955-16T2 who can offer a measure of support in the unfamiliar setting of
the police station." Ibid.
When younger offenders are in custody, the parent serves as a buffer between the juvenile, who is entitled to certain protections, and the police, whose investigative function brings the officers necessarily in conflict with the juvenile's legal interests. Parents are in a position to assist juveniles in understanding their rights, acting intelligently in waiving those rights, and otherwise remaining calm in the face of an interrogation.
[Id. at 315 (emphasis added).]
Accordingly, the Court in Presha held "a parent or legal
guardian should be present in the interrogation room, whenever
possible," and the presence or absence of the adult is "a highly
significant factor." Ibid. "By elevating the significance of the
adult's role in the overall balance, we are satisfied that the
rights of juveniles will be protected in a manner consistent with
constitutional guarantees and modern realities." Ibid.; see A.W.,
supra, 212 N.J. at 129.
In light of the important role of the parent as a juvenile's
advisor, the disagreement between fourteen-year-old I.G.S. and his
mother over whether to invoke his right to counsel, and the absence
of any opportunity for them to consult privately on the issue, it
was appropriate for Detective Live to seek clarification by asking
19 A-1955-16T2 if they wanted to consult with each other.7 If I.G.S. had said he
wanted to be interrogated without counsel, and his mother said she
wanted him to invoke his right to counsel, it would have been
appropriate for Live to ask if the adult and the juvenile wanted
to consult with each other. It was equally appropriate in this
situation, given the parent's advisory role.8
Nonetheless, the motion court ruled Detective "Live's
language and conduct after the juvenile defendant's request for
an attorney does not comport with the requirements of fundamental
fairness."9 The court found Live violated that standard because
"a parent may not waive any rights of a juvenile-defendant except
7 I.G.S. argues if he was an adult, his invocation would have been unambiguous and final. However, I.G.S. was only fourteen years old, his mother was serving as his advisor, and "the parent and child must have a reasonable opportunity to consult on such matters." A.S., supra, 409 N.J. Super. at 112. 8 I.G.S. argues parental advice and consultation is appropriate only if the parent favors invocation rather than cooperation. His one-sided argument has been rejected by the Supreme Court in A.W. and A.S., as discussed infra. 9 The motion court cited Presha for the proposition that the police are required to ensure that the interrogation of a juvenile is conducted in accordance with "the highest standard of fundamental fairness and due process." However, Presha, supra, made clear that heightened requirement is added "when an adult is unavailable or declines to accompany the juvenile," and it has been applied only in that context. 163 N.J. at 317; see, e.g., A.W., supra, 212 N.J. at 130, 136; State ex rel. Q.N., 179 N.J. 165, 173 (2004); see also State ex rel. S. H., 61 N.J. 108, 115 (1972).
20 A-1955-16T2 in the presence of and after consultation of counsel." The court
mistakenly relied on N.J.S.A. 2A:4A-39(b)(1) and P.M.P.
N.J.S.A. 2A:4A-39(b)(1) states:
During every court proceeding in a delinquency case, the waiving of any right afforded to a juvenile shall be accomplished in the following manner: (1) A juvenile who is found to have mental capacity may not waive any rights except in the presence of and after consultation with counsel, and unless a parent has first been afforded a reasonable opportunity to consult with the juvenile and the juvenile’s counsel regarding this decision. The parent or guardian may not waive the rights of a juvenile found to have mental capacity.
N.J.S.A. 2A:4A-39(b)(1) applies only once the State has
initiated "court proceeding[s] in a delinquency case," not before
charges are filed. Thus, P.M.P., supra, held N.J.S.A. 2A:4A-
39(b)(1) applied after "the filing of the complaint and obtaining
of a judicially approved arrest warrant by the Prosecutor's
Office." 200 N.J. at 169; accord State v. Hodge, 426 N.J. Super.
321, 332 (App. Div. 2012) (explaining P.M.P. viewed those charging
acts "as the functional equivalent of an indictment to which the
right to counsel for an adult attaches"). Nothing in P.M.P. or
N.J.S.A. 2A:4A-39(b)(1) suggests that an uncharged juvenile "may
not waive any rights except in the presence of and after
21 A-1955-16T2 consultation with counsel." Indeed, such waivers have been upheld
by our Supreme Court in A.W., Q.N., and Presha.10
The motion court noted "the parent must be acting with the
interests of the juvenile in mind." A.W., supra, 212 N.J. at 133
(quoting A.S., supra, 203 N.J. at 148). However, I.G.S.'s mother's
advice that they "speak with [Detective Live] first" did not show
she was not acting in I.G.S.'s interests. Like an attorney, a
mother may advocate cooperation by a juvenile to build his
credibility in the eyes of the police, clear up police
misapprehensions about his conduct, or obtain favorable treatment
for him.11
10 Notably, even when N.J.S.A. 2A:4A-39(b)(1) applies, it requires that "a parent has first been afforded a reasonable opportunity to consult with the juvenile and the juvenile’s counsel regarding th[e] decision" to waive rights. Moreover, as discussed infra, Detective Live recognized that the right to counsel belonged to I.G.S. and that his mother "may not waive" it for him. Ibid. 11 In addition, parents traditionally may urge juveniles to cooperate "to teach integrity," to show "the decent thing is to come clean[ and] face the music," and because "[a] child can be rehabilitated only in the face of the truth." State ex rel. Carlo, 48 N.J. 224, 244 (1966) (Weintraub, C.J., concurring). In Presha, supra, the Supreme Court acknowledged that parental role but noted that "[w]ith the State's increased focus on the apprehension and prosecution of youthful offenders, the parent's role [as a buffer] in an interrogation setting takes on new significance." 163 N.J. at 314-15. However, those parental concerns remain legitimate if the parent has the interests of the juvenile in mind. See id. at 319-20 (holding that "[a] parent obviously enjoys a special relationship with the juvenile" distinct from that of an attorney).
22 A-1955-16T2 As the Supreme Court recently reemphasized in A.W., "parents
are permitted to encourage their children to cooperate with the
police." Ibid. The Court similarly stated in A.S., supra:
In order to serve as a buffer, the parent must be acting with the interests of the juvenile in mind. That is not to say that a parent cannot advise his or her child to cooperate with the police or even to confess to the crime if the parent believes that the child in fact committed the criminal act.
[203 N.J. at 148 (emphasis added).]
Moreover, the Supreme Court in A.S. reaffirmed Q.N., where
the Court found the juvenile's confession was voluntary even though
"Q.N.'s mother twice urged her son to confess to the suspected
acts" by telling him: "I know you did this. Please answer the
officer's questions." Q.N., supra, 179 N.J. at 169, 177, 179.
The Court in A.S., supra, confirmed Q.N.'s "mother's 'urgings were
consistent with her right as a parent to so advise her son.'" 203
N.J. at 148 (quoting Q.N., supra, 179 N.J. at 177). The Court in
A.S. reiterated the role of the parent was "to assist juveniles
in understanding their rights[ and] acting intelligently in
waiving those rights," as Q.N.'s mother had done. Id. at 150
(quoting Presha, supra, 163 N.J. at 315); see Q.N., supra, 179
N.J. at 176.
I.G.S. tries to analogize this case to the very different
facts of A.S. There, A.S.'s adoptive mother F.D. was the victim's
23 A-1955-16T2 biological grandmother, and she took the side of the victim. Even
before the police interrogation, F.D. confronted A.S., "accused
A.S. of lying," and "grew so angry with A.S." that another person
had to be "present to ensure that there was not an altercation
between F.D. and A.S." A.S., supra, 203 N.J. at 138. Moreover,
at the police interrogation, "F.D. was clearly angry." Id. at
144. As discussed in Section IIIA. above, F.D. "assume[d] the
role and responsibility of the police" during the Miranda warnings,
and made "misstatements of the law" thereafter,
stating that "when the questions are asked you have to answer the question," which plainly contradicted A.S.'s right to remain silent. At other points during the interview, F.D. told A.S. that she must talk — must answer — which implied that even if A.S. requested an attorney, she nevertheless would have to answer the questions.
[Id. at 150; see id. at 139-41.]
Moreover, during the interrogation in A.S., F.D. acted as the
police's "helper," "assistant," and "agent" by being "an
'interrogator,'" aggressively questioning A.S., "badgering" her,
"chastising her," repeatedly calling her "'a liar,'" and
"press[ing] A.S." to confess even when A.S. did not want to talk.
Id. at 136, 137, 141. F.D. again took the victim's side, faulting
A.S. because she "didn't give [the victim] any rights," and
24 A-1955-16T2 "ask[ing] A.S. why she would do this to [the victim] because he
was just a baby." Id. at 139, 141.
The facts here bear no resemblance to the facts in A.S. There
was no claim or evidence that I.G.S.'s mother was taking the side
of the victim rather than I.G.S. I.G.S.'s mother evidenced no
anger towards him and never badgered or chastised him. His mother
played no role in giving the Miranda warnings, and made no
misstatements of his rights. Moreover, I.G.S.'s mother was
essentially silent during Detective Live's questioning, never
asked him a question, called him a liar, or told him to answer or
confess. Nothing in the record suggests I.G.S.'s mother had
"competing and clashing interests in the subject of the
interrogation" or that any such clash was "apparent to [the]
interrogating officer[]." Id. at 155.12
Accordingly, Detective Live had no reason to doubt I.G.S.'s
mother was appropriately serving as his advisor. Thus, the motion
court erred in faulting Live for asking if I.G.S. and his mother
12 Nonetheless, I.G.S. argues an attorney had to be present because his "immigrant mother was either unwilling or unable to serve the protective role." However, the Supreme Court in A.S., supra, rejected a per se rule requiring an attorney to be present even where the parent "is a suspect" or "is truly conflicted" because of "'a close family relationship' to . . . the victim." 203 N.J. at 154-55, 154 n.6.
25 A-1955-16T2 wished to consult with each other in private to resolve their
disagreement about whether or not to invoke the right to counsel.
D.
Fourth, the motion court erroneously faulted Detective Live's
instruction: "When you finish knock on the door, okay. I am going
to be on the other side." The court ruled that "instructing the
juvenile-defendant and [his mother] to knock when they were ready
to discuss their decision is in fact initiating further
communication with the juvenile-defendant after the right to
counsel had been invoked." The court noted "that when counsel is
requested, interrogation must cease, and officials may not
reinitiate interrogation without counsel present." Minnick v.
Mississippi, 498 U.S. 146, 153, 111 S. Ct. 486, 491, 112 L. Ed.
2d 489, 498 (1990).
Generally, "once a request for counsel has been made, an
interrogation may not continue until either counsel is made
available or the suspect initiates further communication
sufficient to waive the right to counsel." Alston, supra, 204
N.J. at 620. The motion court ruled "[a]ny communication after
[defendant] and his mother . . . returned to the interrogation
room must be suppressed in order to give effect to the juvenile-
defendant's affirmative request for counsel." However, it was
"ambiguous" whether the right to counsel had been invoked, and
26 A-1955-16T2 Detective Live properly sought clarification by asking if I.G.S.
and his mother wanted to consult in private. Id. at 623-24.
After I.G.S.'s mother expressed a desire for consultation,
Detective Live made appropriate arrangements for them to have
privacy outside the video-recorded interview room. As that privacy
placed I.G.S. and his mother on the other side of a door from
Live, Live's instruction was a practical arrangement to enable
them to tell her the result of their consultation about whether
to invoke the right to counsel.13
The purpose of asking clarifying questions about an ambiguous
invocation is to elicit a response about whether the right is
being invoked. The officer must be able to receive the response
in order to know whether or not the right is being invoked and
thus whether or not questioning about the crime may proceed. See
Johnson, supra, 120 N.J. at 283. Similarly, "when faced with an
ambiguous assertion of a right, it is only through evaluation of
clarifying follow-up inquiries and the responses to those
13 Indeed, even if a suspect has clearly invoked the right to counsel, "police contacts which are insignificant, regarding unrelated matters, or made for other legitimate purposes concerning the case do not constitute such initiation." LaFave, supra, § 6.9(f), at 948; see, e.g., United States v. Comosona, 848 F.2d 1110, 1112 (10th Cir. 1988) (holding it was not reinitiation when, after Comosona's invocation of the right, an agent "handed Comosona a business card and invited Comosona to call him collect if he wished to speak further about the incident").
27 A-1955-16T2 inquiries that a court can ensure that a waiver of defendant's
right was given intentionally and voluntarily." Alston, supra,
204 N.J. at 623 (emphasis added).
Arranging to hear the response to the clarifying question is
not police reinitiation of interrogation about the crime. Again,
clarifying questioning "is not considered 'interrogation' under
Miranda, because it is not intended to 'elicit an incriminating
response from the suspect.'" Ibid. (quoting Johnson, supra, 120
N.J. at 283). That was evidenced here. When I.G.S. and his mother
knocked on the door, Detective Live asked "[w]hat happened," and
I.G.S. and his mother reported the result of their consultation
concerning whether to invoke the right to counsel. Live confirmed
I.G.S. wished to be interrogated without an attorney present before
she commenced substantive questioning.
The motion court stressed that "[u]pon returning to the
interrogation room, it was [I.G.S.'s mother] who stated, 'he would
like you to interrogate him.'" However, there was nothing
inappropriate in I.G.S.'s mother, as his adult advisor, conveying
what "he would like." In any event, as the court acknowledged,
"Detective Live had I.G.S. confirm that the decision to continue
with the interrogation was his own."
Indeed, Detective Live made repeated efforts throughout to
ensure the decision whether to waive counsel was made by I.G.S.
28 A-1955-16T2 rather than his mother. When I.G.S.'s mother first said they were
going to speak to Live without counsel, Live told I.G.S. that
whether to waive counsel "is your decision," that even if his
mother wanted I.G.S. to speak with Live "you also have to make
that decision," and that it depended on "what you decide." Live
also told I.G.S.'s mother "it is [I.G.S.'s] right," and "if he
wants an attorney before I speak with him, I cannot speak with
him." When I.G.S. initially sought to invoke counsel and his
mother disagreed, Live terminated the interrogation. After they
consulted, Live confirmed with I.G.S. that it was "his own
decision" to speak without an attorney, that his "mother was not
forcing him to do that," and that he was "sure about that"
decision. Live then went over the Spanish-language juvenile-
rights form with I.G.S. to have him indicate his decision.
Therefore, Live properly asked I.G.S. and his mother to knock to
tell Live the results of their clarifying consultation, and
properly elicited I.G.S.'s ultimate decision.
IV.
Thus, the motion court mistakenly ruled Detective Live
violated Miranda when she took the actions addressed above. These
mistaken rulings were central to the court's opinion. Accordingly,
we must overturn that decision.
29 A-1955-16T2 The motion court also stated "the record indicates it was in
fact [I.G.S.'s mother's] misunderstanding about the cost of legal
representation that resulted in the juvenile-defendant's waiver
of his right to counsel." However, I.G.S. and his mother had been
advised: "You have the right to consult and receive advice from
an attorney even if you cannot afford one. If you wish to have
an attorney and cannot afford an attorney one will be appointed
to represent you." Moreover, it is undisputed neither I.G.S. nor
his mother revealed any misconceptions they allegedly had about
I.G.S.'s right "that if he cannot afford an attorney one will be
appointed for him." Miranda, supra, 384 U.S. at 473, 479, 86 S.
Ct. at 1627, 1630, 16 L. Ed. 2d at 723, 726.
"The responsibility of law-enforcement authorities to inform
defendants of their rights ends with the proper administration of
Miranda warnings." State v. Adams, 127 N.J. 438, 448 (1992). "A
police officer has no duty to probe for a defendant's unstated
misconceptions about the effect of the waiver of Fifth Amendment
rights." Id. at 449.
Such unrevealed misconceptions are not normally a basis for
suppression. "It is fundamental . . . that once Miranda warnings
have been given, a subsequent statement is not rendered involuntary
or unintelligent merely because the defendant's decision to speak
is founded upon some ill-conceived notion of the law." State v.
30 A-1955-16T2 Freeman, 223 N.J. Super. 92, 105 (App. Div. 1988), certif. denied,
114 N.J. 525 (1989). Thus, in Adams, supra, our Supreme Court
rejected suppression based on the defendant's alleged
misapprehension that his oral statement would not be admissible,
noting "the trial court found that Detective Thomas had properly
advised defendant of his Fifth Amendment rights and that defendant
understood them when he made his [oral] statement" and that "if
defendant was confused about the legal effect of his making an
oral statement, Detective Thomas was not the source of his
confusion." 127 N.J. at 448, 450. Similarly, in State v.
McKnight, 52 N.J. 35 (1968), our Supreme Court held a
misapprehension about the right to counsel might not justify
suppression:
if a prisoner is told that he has a right to say nothing and that what he says may be used against him, and that he has a right to an attorney and to his presence during any interrogation, at public expense if he is indigent, the objective of Miranda is fully met. It is irrelevant that the prisoner, so advised, chooses to speak without counsel because he misconceives his need for aid or the utility of a lawyer.
[Id. at 47.]
Detective Live did make one statement which I.G.S. now
stresses as "the source of [I.G.S.'s alleged] confusion" about
I.G.S.'s right to appointed counsel. See Adams, supra, 127 N.J.
31 A-1955-16T2 at 450. When I.G.S. and his mother disagreed over whether to
invoke the right to counsel, and Live said they were "done then,"
Live added: "We cannot bring you an attorney now but you can find
one with your mother."14
It is undisputed the police were not required to bring I.G.S.
an attorney.15 However, he argues Detective Live's phrase "you can
find one with your mother" obscured the right to have counsel
appointed by the court. Live used the verb "buscar," whose
translations include "ask for" as well as "seek."16 Thus, the verb
has meanings which arguably describe the processes for both hiring
retained counsel and applying for appointed counsel. The motion
court itself translated this phrase as "you need to get an
attorney."
14 Detective Live said in Spanish: "Nosotros no te podemos traer un abogado ahora pero tú con tu mami pueden buscar uno." 15 Miranda, supra, rejected the idea "that each police station must have a 'station house lawyer' present at all times to advise prisoners." 384 U.S. at 474, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724. The United States Supreme Court has held that "Miranda does not require that attorneys be producible on call" by the police, and that Miranda was not violated where a detective said, "[w]e have no way of giving you a lawyer, but one will be appointed for you." Duckworth v. Eagan, 492 U.S. 195, 198, 204, 109 S. Ct. 2875, 2881, 2887, 106 L. Ed. 2d 166, 174, 178 (1989) (emphasis omitted). 16 Translation of "Buscar", Cambridge Dictionary, http://dictionary.cambridge.org/dictionary/spanish-english/ buscar (last visited Aug. 21, 2017).
32 A-1955-16T2 At the Miranda hearing, Detective Live agreed that "a court-
appointed attorney would be provided to [I.G.S.]" and that "he
does not have to find an attorney, whether it's appointed or not."
I.G.S.'s mother testified she thought Live's phrase meant "you had
to go out and find your attorney."17 The motion court mentioned
Live's statement but did not expressly evaluate it, instead
focusing on Live's alleged violations of Miranda which we have
rejected above.
We believe the propriety and effect of the "you can find one"
phrase should be considered on remand, free of the mistaken view
that Detective Live otherwise committed Miranda violations. In
its discretion, the motion court may allow the presentation of
additional testimony, including by I.G.S.
In evaluating the effect if any of the "find" phrase, the
motion court should consider Mejia, supra, where our Supreme Court
concluded that "[a]lthough the [Spanish-language] warning card
might have used a better verb, we cannot say that the card misled
Mejia." 141 N.J. at 503. The court should also bear in mind
Alston, supra. When Alston asked "if I did want a lawyer in here
with me how would I be able to get one in here with me?," the
17 The motion court viewed I.G.S.'s mother as saying the phrase "meant she had to find and pay for an attorney," but she did not expressly so testify.
33 A-1955-16T2 interrogating detective responded "that's on you." 204 N.J. at
618. In excluding Alston's confession, "the motion court concluded
that the detective's response might have been misunderstood to
mean that it was defendant's obligation to secure counsel on his
own," and ruled that the detective was required "to reiterate that
defendant had the right to have an attorney appointed if he could
not afford one." Id. at 618-19. Our Supreme Court rejected that
ruling, explaining "that interrogating officers, when engaged in
communications with suspects, most often use language that is also
more like that of the suspect than the precise and pristine
elocutions of [an] Oxford don," so "a minute parsing of the words
used might yield an inaccurate picture of what was meant." Id.
at 627.
The motion court must
assess the totality of circumstances surrounding the arrest and interrogation, including such factors as "the suspect's age, education and intelligence, [previous encounters with the law,] advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved."
[Presha, supra, 163 N.J. at 313 (citation omitted); e.g., Q.N., supra, 179 N.J. at 175- 79.]
It must determine whether Detective Live's use of the phrase "you
can find one" itself created a misapprehension on the part of
34 A-1955-16T2 I.G.S. and his mother that they could not obtain court-appointed
counsel and caused I.G.S. to waive his right to counsel. If
Detective Live's use of the phrase did not have those effects, no
other basis for suppression is apparent, given our rulings that
Detective Live did not engage in any other improper activity.
The motion court found that I.G.S. "was fully under the
control of his parent" and that "the record reveals subtle parental
coercion by [I.G.S.'s mother] for I.G.S. to speak with Det. Live."
However, that finding was apparently based on the testimony of
I.G.S.'s mother that he "was an obedient child" and that he would
and did "listen to" her advice. Such testimony must be considered
in light of the mother's role to provide advice to her fourteen-
year-old son under Presha and subsequent cases. It would thwart
the parental role as advisor, particularly for younger juveniles,
if an obedient child's listening to his parent's advice (whether
to cooperate or invoke his rights) was invalid as coercion.
Moreover, "[t]he Fifth Amendment privilege is not concerned
'with moral and psychological pressures to confess emanating from
sources other than official coercion.'" Berghuis, supra, 560 U.S.
at 387, 130 S. Ct. at 2263, 176 L. Ed. 2d at 1114 (quoting Colorado
v. Connelly, 479 U.S. 157, 170, 107 S. Ct. 515, 523, 93 L. Ed. 2d
473, 486 (1986)); accord State v. Smith, 307 N.J. Super. 1, 10-11
(App. Div. 1997), certif. denied, 153 N.J. 216 (1998). "[C]oercive
35 A-1955-16T2 police activity is a necessary predicate to [any] finding that a
confession is not 'voluntary' within the meaning of the Due Process
Clause of the Fourteenth Amendment." Smith, supra, 307 N.J. Super.
at 10 (quoting Connelly, supra, 479 U.S. at 167, 107 S. Ct. at
522, 93 L. Ed. 2d at 484). "The exclusionary rule respecting
involuntary confessions must be anchored to the reason for its
existence." Id. at 14.
New Jersey courts have extended that principle to encompass
situations where private parties have "obtained the confessing
statements through force and the threats of force." State v.
Kelly, 61 N.J. 283, 291-93 (1972) (agreeing that Miranda does not
apply to interrogation by a private uniformed and armed security
guard, but considering the defendant's allegation that the guard
and others had coerced his confession by having "[his] arms twisted
about where [his] shoulders were"); accord State v. Marczak, 344
N.J. Super. 388, 396-99 (App. Div. 2001) (considering the
defendant's allegation that the male victim "had coerced her taped
and written confessions by putting a knife to her throat and then
putting a gun to her head"), certif. denied, 171 N.J. 44 (2002).
No force, threats of force, or similar coercion were alleged here.
Vacated and remanded. We do not retain jurisdiction.
36 A-1955-16T2