Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Thursday, December 06, 2012


DOCKET NO.  A-2435-10T12435-10T1







Submitted March 20, 2012 - Decided

Before Judges Espinosa and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-04-0372.

Law Offices of Alexander M. Iler, attorneys for appellant (Alexander M. Iler, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

Defendant was convicted by a jury of second-degree weapons offenses after his motion to suppress a statement given to police officers was denied.  The sole basis for his appeal from his convictions is that the trial court erred in denying his suppression motion.  For the reasons that follow, we reverse.
At approximately 6:00 p.m. on October 14, 2008, Detective Paul Toth of the Mercer County Sheriff's Office responded to a location in Trenton after receiving a report of shots fired.  Defendant was identified as a suspect that evening and transported to the Trenton Police Department.  While Toth and defendant were in the elevator on route to the interview room and before any questioning occurred, defendant said, "I can't believe I'm the one that gets arrested.  He shoots at me."  Toth testified that he did not follow up this statement with any questions because they had not arrived at the interview room and had not advised him of his Miranda rights.
Toth and Detective Anthony Aguanno of the New Jersey State Police conducted an interview of defendant that was recorded.  The interview began with Aguanno introducing the officers by stating, "Alright, alright, alright, alright.  Hang on one second.  Just, just let me introduce us.  I'm Tony, this is Paul.  Alright?"  Aguanno proceeded to ask defendant for the spelling of his name, his address, and date of birth.  When Aguanno asked for defendant's cell phone number, he replied, "Damn, word!"  Aguanno said, "Well give me, give me a number to contact you then and if you . . . I have to put something down."  After defendant supplied a number, Aguanno asked, "[w]hat is that?"  Defendant provided the following response:
That's, that's the um sellin' the home, that's my Aunt [sic] house.  I be over there all the time.  Um, in a month 'cause they sell (inaudible) 'cause there ain't no need for that, for ya'll to have that.  And let me give ya'll my house number, um . . . 

When Aguanno asked for the name of his aunt, defendant said, "My Aunt's name is, damn, see man, my heads [sic] fucked up right now see."  Neither officer inquired as to whether defendant consumed any alcohol or drug in response to this statement. 
Aguanno then stated, "Alright, listen, uh, we're just, we're just here to talk to you about what happened tonight, but before we do we just have to read you your Rights.  It's a standard procedure."  Defendant replied that he was not read his rights when he was arrested and was told that the officers did not have to do so on the street because they were doing it now.  Then there was the following exchange:
Tony: We're just getting it out of the way.  We'll talk.

Paul: We'll talk.

Tony: And you'll give, get your opportunity to tell us what happened.

Funches: No lawyer, no nuthin'?

Tony: Hey, listen.

Funches: That's what I'm doin' by signin' that paper, I'm waivin' my right at, to a lawyer?

Tony: Well when you read it, yeah, we're just, we need your side of the story.  The only way to get your side of the story is to read this to you.  And you can tell us whatever you wanna tell us.

Paul: But let us read this to you first.

Tony: Alright man?  Do you understand, do you understand?

Defendant responded by stating he had to go to work the next day and attempted to give his version of events.  The officers stopped him and Toth said, "We have to read this to you."  When Aguanno reached the advice regarding right to counsel, "You have the right to talk to a lawyer for advice before we ask you any questions[,]" defendant interrupted and stated, "Yeah.  I be seein' you for how long?" 
Aguanno replied:
No, we're not (inaudible).  You're gonna tell us your story.  Let me just finish this though, alright?  Um, again.  You have the right to talk to a lawyer for advise [sic] before we ask you, uh, any questions and have him with you during questioning.  If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.  If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at anytime until you talk to a lawyer.  Do you understand that?

Defendant replied, "Yeah" and Aguanno said, "Just sign."  The transcript does not reveal defendant's condition or actions at this point, but this exchange followed:
Paul: Uh, you alright there?

Funches: Uh, I was.  I was about to stop breathing for a minute man.  I, I, I got, I got a habbit [sic] man.  I live in Trenton, New Jersey.  Um, yeah.

Tony: What, what, what, what's that?

Paul: What the hell is that?

Funches: Oh no, I did this so I don't fall.  I took my shoe up.  I took my shoe up.

Paul: Oh, Okay.

Paul: Can you like, 'cause you have to sign there.

In this exchange, there was apparently some aspect of defendant's condition or conduct that prompted Toth to ask if he was alright, to which defendant explained that he had a drug habit.  There was also some action by defendant that caused both officers to respond along the lines of "what the hell is that?"  Yet, neither officer made any inquiry regarding the consumption of drugs or the effect of defendant's drug habit on his ability to proceed.  Once the issue of the shoe was explained, Toth returned to telling defendant, "you have to sign there."  This exchange followed:
Funches: So, um, if I sign this right . . . 

Tony: This is basically . . . 

Funches: I know.  I understand.  I understand.  But how long do I have to wait before I talk to a lawyer?

Tony: What do you mean?

Funches: No, I mean, will I talk to the lawyer tonight?  Will I, will I   . . . 

Tony: Whenever you want, This is, this is basically just telling you that you have the right to be represented by a lawyer.  If you say you want a lawyer then we can't talk to you at all right now.  And you can't give us your side of the story.  That's what that means.

Funches: Then ya'll gonna send me up?

Tony: What's that?

Funches: Ya'll just gonna send me up to the workhouse, huh?  Like what?  I'll talk.

Tony: Well, we need your side of the story.  It's . . .

Funches: Alright, but, I need to know what's gonna happen to me.  You feel me?  Cause, you know what I mean?  I work, you feel me?
[(Emphasis added).]
Defendant proceeded to tell the officers that the name of the man who shot at him was named Terreon and that if it was known that he provided that information, "they gonna kill me[.]"  Aguanno suggested that defendant could be signed up as a confidential informant. 
Defendant's suppression motion was decided "on the papers," without any evidentiary hearing.  In his appeal, defendant argues that the trial court erred in denying his motion because the officers were legally required to clarify his three statements regarding an attorney to determine whether he was seeking to invoke his right to an attorney.  We agree.
In State v. Alston, 204 N.J. 614, 619-625 (2011), our Supreme Court reviewed the legal principles applicable to our review.  As initially articulated in Miranda, if the accused "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning."  Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707.  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.  See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378, 386 (1981).  "[A] suspect need not be articulate, clear, or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel."  State v. Reed, 133 N.J. 237, 253 (1993).  "[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."  Alston, supra, 204 N.J. at 624.  However, officers may not use their obligation to clarify the suspect's meaning to ask "questions that 'operate to delay, confuse, or burden the suspect in his assertion of his rights.'"  Id. at 623-624 (quoting State v. Johnson, 120 N.J. 263, 283 (1990)).
Not every reference to a lawyer will require a halt to questioning.  In State v. Messino, 378 N.J. Super. 559 (App. Div.), certif. denied, 185 N.J. 297 (2005), the defendant effectively asked the officer for advice, asking "[d]o you think I need a lawyer?"  Id. at 573.  The officer told him it was his responsibility to tell the defendant he had a right to a lawyer but "that was his call."  Ibid.  We held that, unlike such statements as "Maybe I should have an attorney," Maglio v. Jago, 580 F.2d 202, 203 (6th Cir. 1978) or "I had better talk to a lawyer," United States v. Clark, 499 F.2d 802, 805 (4th Cir. 1974), the defendant's request for advice was not an assertion of the right to counsel.  Messino, supra, 378 N.J. Super. at 578.  
In our review, we must consider the totality of the circumstances, "including all of the suspect's words and conduct."  State v. Diaz-Bridges, 208 N.J. 544, 569 (2011).  The Court's review of the context for the defendant's references to counsel in Alston is instructive.
Like the defendant in Messino, the defendant in Alston initially asked for advice, stating "Should I not have a lawyer in here with me?"  Alston, supra, 204 N.J. at 618.  The detective responded by asking the defendant directly if he wanted a lawyer.  Ibid.  The defendant stated, "No, I am asking you guys, man."  Ibid.  Defendant then asked about the mechanics of getting "a lawyer in here with me[,]" and the detective returned to the fact that it was defendant's choice and stated: 
If you want a lawyer, then we - stop and you going to get your lawyer.  That's why he read that clearly to you and your waiver.  If you want to stop at this time then we stop at this time.  It's either yes or no, Damu.


Defendant questioned "why" he should stop since he was "already waist-deep, about to drown[.]"  Ibid.  The detective again returned to the fact that defendant had to make a choice, "to answer yes or no."  Ibid.  The defendant's reply, "I already did[,]" ibid., certainly implied that he had decided to proceed without an attorney.  Nonetheless, the detective asked a clarifying question, "Do you want a lawyer?  No - that's what you're saying?"  Ibid.  The defendant stated, "When I go to court, I guess."  Ibid.  In the face of this apparent decision not to request counsel until he went to court, the detective still asked a question to clarify, "Do - do you want to continue answering questions - answering our questions?"  Ibid.  And the defendant provided an unequivocal response, "Sure.  Why not?"  Ibid.
The Court found that defendant's statements were not ambiguous assertions of his right to counsel: 
In the final analysis, defendant's understanding of his rights was clear and complete; the words he chose were not an ambiguous assertion of any of those rights but instead were a series of requests for advice from the detective.  The words the detective used in an effort to clarify whether defendant was attempting to assert any of his rights were neither inaccurate nor misleading.  [Id. at 628.]

The Court therefore concluded that defendant's waiver of his rights was knowing, voluntary and intelligent.  Ibid.  
A review of the transcript here fails to show that defendant had a "clear and complete" understanding of his rights or the consequences of continuing to answer the officers' questions.  The officers repeatedly minimized the consequence of executing the Miranda waiver, referring to reading the rights as "a standard procedure" that they had to "get[] out of the way" before they gave defendant "[his] opportunity to tell . . . what happened."  When defendant asked, "No lawyer, no nuthin?" and if he was waiving his right to a lawyer by signing the paper, Aguanno did not ask if defendant wanted a lawyer as the officer had in Alston.  Rather, he stressed the officers' need to get defendant's "side of the story" and that the "only way to get [his] side of the story" was to read the Miranda rights to him.  When defendant said, "Man, look.  I gotta go to work tomorrow, feel me?  I work[,]" Aguanno responded, "We'll make it quick." 
Defendant's lack of understanding as to the consequences of his waiver is highlighted by his questions of how long did he have to wait before he talked to a lawyer if he signed the waiver, and whether he would talk to a lawyer that night.  While Aguanno did refer back to the right to counsel, he stated that a consequence of asserting the right was that defendant would not be able to give his side of the story.  Defendant expressed a willingness to talk but said he needed to know what would happen to him because he needed to go to work in the morning.  Aguanno's response was to refer again to their "need" to get defendant's "side of the story." 
Viewing the totality of the circumstances here, including defendant's questions and statements, we are not satisfied that he had a clear understanding of his right to counsel or the consequences of his waiver.  Unlike the defendant in Alston, he never expressed a willingness to forego counsel until a later proceeding but repeatedly asked when he would be able to see a lawyer.  While he asked questions of the officers, it was not for advice regarding the assertion of his right to counsel, but rather for information about when he would see an attorney and if he would be able to go to work if he gave his "side of the story."  Although he commented on the irony of his being arrested when he perceived himself to be a victim, it is not entirely clear that he understood he was a target of the investigation rather than a witness in light of his request for police protection following his disclosure of the identity of the man who first opened fire.  Our confidence in his level of comprehension is further diminished by the strong suggestion in the transcript that defendant may have been under the influence of drugs at the time of the interview.  The officers' responses to defendant's questions regarding counsel did not clarify the situation.
Therefore, we conclude that defendant's statements to the police here constituted ambiguous assertions of the right to counsel which required that further questioning cease and that, as a result, the motion to suppress his statements should have been granted.  Defendant's conviction is reversed.  We do not retain jurisdiction.