JOHN E. REID & ASSOCIATES, INC.
 

Legal Updates Spring 2012





Defendant does not have to actually speak to invoke the right to remain silent

In the case Commonwealth v. Clarke, (Jan. 2012) the Supreme Court of Massachusetts upheld the trial court's decision that a defendant can invoke his right to remain silent by shaking his head "back and forth in a negative fashion." In this case in a custodial interrogation the investigator said to the defendant, "You just want to go home? So you don't want to speak?" In response the defendant "shook his head back and forth in a negative fashion." One of the investigators continued to talk to the defendant, who subsequently made incriminating statements. The court suppressed these statements because the police "did not immediately cease questioning in the face of the defendant's unambiguous invocation of his right not to speak with them."

Click here for the complete decision.

Statement to suspect that he "should explain his mistake so that his daughter did not have to grow up without her dad" rendered the confession inadmissible

In the case U.S. v. John (Jan. 2012) the US District Court, D. Arizona, found that any incriminating statements that the defendant made after "the agent said Defendant should explain his mistake so that his daughter did not have to grow up without her dad are suppressed as involuntary." The court pointed out in their opinion similar statements that can tender the confession inadmissible, stating the following:

Haynes and Lynumn demonstrate that threats and promises relating to one's children carry special force. Interpreting these cases, the Ninth Circuit has previously concluded that "[t]he relationship between parent and child embodies a primordial and fundamental value of our society."..... When interrogators "deliberately prey upon the maternal [or paternal] instinct and inculcate fear in a [parent] that [he or] she will not see [his or] her child in order to elicit 'cooperation,' they exert the 'improper influence'...

Click here for the complete decision.

Suspect told he would "only be a witness if he had merely been present but had not been a shooter." - is this a promise of leniency?

In the case Thlang v. Jacquez (Jan. 2012) the U.S. District Court, E.D. California, upheld the Appeal's Court's decision to reject the defendant's claim that "his statements after Detective Seraypheap urged him to be a witness rather than a suspect were involuntary and inadmissible because this was an implied promise of benefit or leniency which induced him to admit he was present at the shooting. In his view, the witness/suspect dichotomy was a false representation that admitting he was present "would result in his being a mere witness and not a suspect and his release from custody."

"As the trial court noted, defendant was strong-willed and was sophisticated about the nature of police interrogation tactics in a serious case. Detective Seraypheap had earlier told him that regardless of whether he did the shooting or not, "I'll tell you this right now, you can't get off the hook. You have to answer to it." After making the witness/suspect remark and before the incriminating admission, the detective told defendant that denying he was present "hurt[s] your case more." This, too, implies that there will be a case against defendant regardless of an admission of presence.

We do not believe that the remark was, or that defendant took it as, an assurance that admitting he was present "would result in his being a mere witness and not a suspect and his release from custody." Even if the mention that defendant could be viewed as a witness was problematic, Detective Seraypheap's statement is not attributable to an implied promise. Considering all the circumstances of this case, no improper coercion (by suggesting that defendant could benefit from giving a truthful, mitigated account of the shooting incident) caused him to admit he was present."

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Court finds testimony from Dr. Bruce Frumkin inadmissible on whether the defendant has a propensity to make a false statement

In the case State v. Pate (Nov. 2011) Court of Criminal Appeals of Tennessee upheld the lower court's ruling to restrict the testimony of defense expert Dr. Bruce Frumkin. The Appeals court found that "Where expert testimony is merely an iteration of what would be within the jurors' common sense, the admission of such evidence does not assist, much less substantially assist, the trier of fact to understand the evidence or determine a fact at issue. Accordingly, a court would not err by excluding an expert whose testimony consisted solely of providing a dressed-up and credentialed declaration of what would be already safely within a juror's common-sense understanding."

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Is this statement an unambiguous invocation of the suspect's right to counsel - "I'd like an attorney present. I mean but I can't afford one. So I guess I'll just speak to you now. I don't have an attorney."

In the case Commonwealth v. Hoyt (Dec. 2011) the Supreme Court of Massachusetts found that the defendant unambiguously invoked his right to counsel and that questioning should have ceased until counsel was made available, when, during custodial interrogation, after being given Miranda warnings, the defendant told police, "I'd like an attorney present. I mean but I can't afford one. So I guess I'll speak to you now. I don't have an attorney."

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"I don't want to say anything more" is an unambiguous exercise of the defendant's right to silence

In the case State v. Wiegand (Feb. 2012) the Wisconsin Court of Appeals found that "During the course of a custodial interrogation, Knopps asked Wiegand a question meant to elicit an incriminating response. Wiegand responded, "I don't want to say anything more." We discern no ambiguity in the meaning of that statement."

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If a juvenile is questioned in a police car, is he in custody? In this case the court said no.

In the case Sturm v. Darnell (Jan. 2012) the U.S. District Court, S.D. Ohio upheld the trial court's decision that in this case the juvenile offender was not in custody, even though he was questioned in a police vehicle. They stated in their opinion that: "The trial court found the following facts in support of its conclusion that Sturm was not in custody when he was interviewed by Detective Warden. First, the officers interviewed Sturm in an unmarked police car in front of Sturm's residence. This vehicle was indistinguishable from a regular passenger vehicle, except for the presence of a small police radio, which was not turned on during the interview. Also, the entire passenger compartment of the vehicle was open and all four doors on the vehicle had working door handles. Second, the officers obtained permission from Sturm's father before questioning Sturm. Third, Sturm's father sat in the unmarked car with him for the first portion of the interview. Fourth, before any questioning began, Detective Warden told Sturm that he was not under arrest, that he was free to leave at any time, and that he did not have to speak with the officers. Sturm responded that he understood. Based on these findings, which are supported by the record, the trial court did not err in concluding that Sturm was not in custody at the time of the questioning."

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Rationalizing a defendant's actions (self-defense/accident) in such a way that he "might hope that he would not be charged with murder" did not render the confession inadmissible

In the case State v. Fundaro (Jan. 2012) the Court of Appeals of Michigan upheld the trial court's denial of Fundaro's motion to suppress his statements. "Fundaro explained that the officers kept telling him that it sounded like it was an accident or self-defense and that it would be better for him if he would just tell them what happened. He stated that he would never have admitted to committing the crime had he known that he would be facing life in prison.

At the hearing, Wittebort testified that he and Troy tried to get Fundaro to tell them about the stabbing by throwing out "theories" or "scenarios" that might help Fundaro rationalize what happened:

It's just another, it's another theory.... I mean, the bottom line is we're trying to get to the bottom of what happened. So, throw a bunch of scenarios ... and see which ... appeals to him. So, I mean, it's just another rationalization that was tossed at Mr. Fundaro.

Although they suggested theories and scenarios under which Fundaro might not be guilty of murder, Wittebort testified that he never promised Fundaro leniency and that he did not hear anyone else promise him leniency. And Fundaro testified that the officers talked about leniency, but did not specifically promise him anything. Indeed, he acknowledged that Troy told him that he could not promise him anything. Fundaro suggests that he only confessed because the officers convinced him that he would not be charged with murder, but the officers used these types of themes from the very beginning of the interview and Fundaro had no trouble denying involvement throughout the majority of the questioning. Moreover, during the interview, and despite all the allegedly misleading statements, Fundaro repeatedly indicated that he understood that he would likely go to prison; he even told Mistretta: " 'I killed a guy and I went in there to rob the joint. I'm still going to go to prison?' "

On this record it is clear that Fundaro understood the seriousness of the offense that he committed and did not understand the officers' proffered rationalizations as a promise of leniency in exchange for his confession.... Although the officers might have helped him rationalize his actions in such a way that he might hope that he would not be charged with murder, the evidence does not demonstrate that these tactics so affected Fundaro that his will was overborne or his capacity for self-determination was critically impaired."

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Court finds that interrogators are permitted to use minimization techniques

In the case State v. Belonga (March 2012) the Supreme Court of New Hampshire upheld the admissibility of the defendant's incriminating statements, finding that police can use minimization techniques. In this case the defendant claimed that the interrogator's "minimization of the possible causes of Rylea's [her child] injuries affected the voluntariness of her statements." The court pointed out in their opinion the following:

"At the suppression hearing, Maher testified that he used an interrogation technique that involves "minimizing the actions [of defendants to suggest] that they are less culpable for their actions, whether it be due to a chemical dependence or being under the influence of alcohol or drugs or being [under] the stress of a single parent." Therefore, this interrogation technique does not entail the use of outright falsehoods, but rather the use of subtle subterfuge. Given that police are permitted to mislead a suspect, they are likewise permitted to use minimization techniques."

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Court excludes the testimony of Dr. Richard Leo: "the proposed expert testimony was little more than speculation."

In the case People v. Mullen (March 2012) the Court of Appeal, Third District, California upheld the lower court's decision to exclude the testimony of Dr. Richard Leo on the issue of false confessions. In their decision the Appeals Court stated that, "Expert testimony in this regard would not have altered appreciably the jury's perception of the confession. While Dr. Leo would have testified that stress can make a suspect more compliant, his testimony would not have, and could not have, established that the confession was false. The court further stated that, "Taking into account the totality of the circumstances, the proposed expert testimony was little more than speculation and would not have changed the verdict of a reasonable jury."

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Court does not allow Dr. Richard Ofshe to testify on false confession issues

In the case US v. Holmes (Feb. 2012) the U.S. Court of Appeals, Fourth District, upheld the lower court's decision to exclude the proposed testimony of Dr. Richard Ofshe. In their opinion the Court of Appeals relates the following: "The following day, Holmes notified the Government that he intended to call an expert witness, Dr. Ofshe, to "explain why people falsely confess and the factors that are considered." ... At the Government's request, Holmes later clarified that Dr. Ofshe would not "be offering an opinion about whether ... the statements made by [Holmes] in this case were in fact false," but would educate the jury "about the scientific research on false confessions, the fact that they occur, and some of the reasons why."

The Court of Appeals found that, "Neither Holmes' brief synopsis of Dr. Ofshe's opinion nor Dr. Ofshe's curriculum vitae provide the bases and reasons for his proposed testimony that individuals sometimes make false confessions. Accordingly, the district court did not abuse its discretion in concluding this consideration also favored granting the motion in limine."

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Court excludes testimony of social psychologist on false confessions

In the case People v. Thomas (March 2012) the Supreme Court, Appelate Division, Third Dept., New York upheld the lower court's decision to deny the defendant's request to permit expert testimony from a social psychologist on police interrogation tactics and false confessions. In their opinion the Supreme Court stated that, "The record, including the hearing testimony of the People's expert, a law school professor expressly credited by County Court, fully supports the court's ruling that the psychologist's proffered testimony neither concerned a subject matter outside of the ken of the average juror, nor had the principles upon which the psychologist relied been established as accepted within the relevant scientific community..... The court determined that current research fails to establish either a consensus connecting specific interrogation techniques to the occurrence of false confessions or a reliable basis for distinguishing false confessions from truthful ones."

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Two courts reject the claim of ineffective counsel because an expert witness on false confessions was not called

In the case of State v. Spoerl (March 2012) the Court of Appeals, Wisconsin rejected the defendant's claim that his counsel was ineffective for failing to call an expert witness on the issue of false confessions, stating that, " Spoerl's claim of ineffective assistance of trial counsel fails for several reasons. First, the claim that counsel was ineffective for failing to call an expert witness or present a learned treatise on false confessions is precluded by State v. VanBuren, 2008 WI App 26, PP 17-19, 307 Wis.2d 447, 746 N.W.2d 545. Counsel's performance could not fall below the objective standard of reasonableness as measured against prevailing professional norms because there is no published Wisconsin case stating that expert testimony on false confessions is admissible and authorities elsewhere are split. Id.

Second, Spoerl did not present an expert witness at the postconviction hearing. Without evidence of what the expert would have said or how he would have been cross-examined, we cannot conclude that counsel was deficient or that the defense was prejudiced by the failure to call that witness.

Third, Spoerl failed to establish prejudice from his counsel's conduct. While the learned treatises speak generally of the phenomenon of false confessions and the effect of youth and mental disorders on interrogation, the treatises do not specifically address the significance of autism or Asperger's syndrome, and Spoerl offers no explanation for his ability to maintain his innocence regarding other crimes. Spoerl also fails to explain how the factors recited in the articles relate specifically to his confession. The evidence presented at the postconviction hearing does not undermine our confidence in the outcome."

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In the second case, Mulero v. Thompson (Feb. 2012) the U. S. Court of Appeals, Seventh Circuit, found that "Mulero's second claimed deficiency--that Lynch [Mulero's attorney] failed to obtain psychological evidence to support an argument that Mulero's confession was involuntary--fares no better. In his motion to suppress, Lynch argued that Mulero's confession was psychologically coerced, but the state court rejected this argument. Lynch also testified that he discussed making a coerced-confession argument with Mulero, but he doubted it would succeed given her boastful display to the television cameras following her confession. Moreover, the psychological evidence later obtained from Dr. [Michael] Kovar (defense expert) was rejected as not credible by the state trial court and the Illinois Supreme Court found that in light of the other evidence, the trial court had properly rejected Dr. Kovar's credibility. Additionally, the assistant state's attorney for Cook County to whom Mulero confessed testified at her sentencing hearing that during her confession Mulero was very calm and in control of herself and did not indicate any remorse for her actions. He added that it appeared that Mulero was very proud of what she had done. This testimony also would negate a coerced-confession argument. Under these circumstances, the state court did not act unreasonably in concluding that had Lynch obtained additional psychological evidence, it would not have changed his advice or convinced Mulero to change her mind about entering a blind plea of guilty."

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Court finds use of a videotape as a prop during an interrogation acceptable

In the case People v. Lewis (March 2012) the Supreme Court, Appellate Division, Fourth Dept., New York upheld the admissibility of the defendant's incriminating statements. On appeal the "Defendant further contends that one of his statements to the police was involuntary inasmuch as it was obtained as a result of police deception, i.e., the use of a videotape as a prop, and as a result of the conduct of the police in attempting to capitalize on the potential criminal liability of defendant's girlfriend. We reject that contention. "Deceptive police stratagems in securing a statement 'need not result in involuntariness without some showing that the deception was so fundamentally unfair as to deny due process or that a promise or threat was made that could induce a false confession' .... Under the circumstances of this case, the fact that the police used a videotape as a prop does not warrant suppression."

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Interrogating a suspect after continued denials not coercive

In the case Murga v. State (March 2012) the Court of Appeals of Texas upheld the admissibility of the defendants confession, even though the defendant claimed his statements were coerced. In examining the circumstances surrounding the interrogation, the court reported that, "Both detectives testified they did not coerce or harass appellant into making a statement against his will and that appellant freely and voluntarily spoke to them; at no time did appellant ask to terminate the interview or state that he wanted an attorney. Appellant was offered necessities such as food, water, and bathroom breaks. The record reflects that appellant never complained that any lack of sleep or anything else rendered him unable to continue with the interview. Lopez testified the method of interrogation the detectives used was not to accept appellant's denials and to continue the interview until appellant told the truth. Appellant was accused several times of lying when he denied committing the crime, and he was encouraged to tell the truth even when he was crying. There were long periods of time when appellant was in the interview room alone.....

Viewing appellant's confession under the totality of the circumstances, we conclude the trial court's findings and conclusions that appellant's confession was voluntarily made and thus admissible are supported by the record. Appellant was informed of his Miranda rights, and he stated more than once that he understood his rights. Although the detectives continued to encourage appellant to tell the truth after he denied involvement in the offense, they did not threaten or coerce appellant during the approximately five hours they actually interviewed him."

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Confession voluntariness: telling defendant length of punishment and misrepresenting evidence

In the case People v. Riley (Jan. 2012) the Court of Appeal, Fourth District, Division 1, California upheld the admissibility of the defendant's confession even though the interrogator stated the possible punishment she was facing and misrepresented the evidence against the defendant. In their opinion the court points out the following:

"Riley contends she was coerced into confessing by Vasilis's promises of leniency in exchange for cooperation. Riley claims Vasilis's statement that they were discussing "something that could ... give you a, a sentence if you get to like youth authority till you're twenty-five or for life" was a promise to treat her as a juvenile if she confessed, or as an adult if she refused.

Riley relies on cases holding that promises of leniency are coercive police activity which invalidate voluntary confessions,.... In Lopez, FBI agents investigating a murder held up pieces of paper, marked with the terms "mistake", "murder," "6" and "60" to coax the suspect to admit his involvement. The circuit court held the technique amounted to a promise of leniency for a confession. Riley argues Vasilis's statement was functionally identical, promising her incarceration for nine years in exchange for confession versus life imprisonment for noncooperation.

We acknowledge the weight of opinion condemning promises of leniency.... However, we reject Riley's assertion that Vasilis's comment amounted to such a promise. There is no indication in the record that Vasilis implied Riley would receive a juvenile sentence instead of a life term for cooperating, and Riley's assertion to the contrary is a mischaracterization. Vasilis stated the possible sentences Riley might face for murder, including incarceration in the youth authority until the age of 25 or life imprisonment, but did not suggest her confession would be a factor in determining the outcome in her case. Unlike investigators in Lopez, Vasilis did not pressure Riley by directly basing a 10-fold increase in sentence on her cooperation. Rather, he simply outlined the maximum sentences possible for her crime depending on her age, a distinction he made no claim of control over. A bare mention of consequences, absent some promise or threat, cannot overbear a defendant's will.... The evidence thus shows Vasilis's statements, however characterized, did not have a coercive effect upon Riley. Rather, Riley's internal guilt led to her confession.

Riley next claims her statements were involuntarily because Vasilis lied to her about the existence of surveillance video. We disagree. While "police deception is a factor to be taken into consideration" when determining whether a confession is voluntary, deception alone will not invalidate a confession..... Our courts have allowed numerous instances of police mendacity, including those "far more intimidating and deceptive" than those employed here..... Generally, deceptive interrogation techniques only cross the line when they are of a type "reasonably likely to procure an untrue statement." ... Put another way, deception only mandates reversible error when it overbears the will of the suspect to the extent that confession becomes preferable even to the truth.

Here, Riley's will was not overborne by police deception. Although she changed her story to admit her presence shortly after Vasilis told her there was surveillance footage, she initially maintained her own innocence in the killing. Further, Riley told Vasilis she did not believe the surveillance existed, and made another comment that indicated her disbelief. To hold a false statement from police overbore the will of a suspect who explicitly believed it to be untrue would be disingenuous, and we decline to do so here.

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Fourteenth Amendment does not require law enforcement to videotape custodial interrogations

In the case Hodges v. Bezio (Feb. 2012) the U.S. District Court, E.D. New York, found that the Fourteenth Amendment does not require law enforcement to videotape custodial interrogations. In this case the defendant claimed "that his guarantee of due process under the Fourteenth Amendment was violated by the failure of inquiring detectives to videotape his interrogation."

The District Court found that "the Fourteenth Amendment does not require law enforcement to videotape custodial interrogations, notwithstanding any perceived benefits that might accrue from such a practice. It is noteworthy that Hodges has cited no federal authority to support this claim. And there is good reason. Several circuits have held that there is no federal constitutional right to a videotaped interrogation..... Therefore, Hodges's claim fails on the merits as well."

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Two cases address the issue of a suspect asking to talk to his mother during a custodial interrogation:

Is the request by a 15 year old to speak to their mother (in a custodial setting) tantamount to requesting an attorney?


In the case People v. Nelson (Jan. 2012) the California Supreme Court considered the issue of whether the defendant (15 years old) made a post waiver invocation of his Miranda rights by asking several times to speak to his mother or by making certain other statements while being questioned. If he did, then the investigators' failure to stop the interrogation compelled suppression of the statements he made after the invocation.

In this case the trial court determined that defendant made a knowing, intelligent, and voluntary waiver of his Miranda rights. The Court of Appeal agreed...

"Here, investigators Salcedo and Sutton questioned defendant for over five hours, and the entire interrogation was both recorded and transcribed. At the hearing on the motion in limine, the trial court stated it had reviewed the videotape and considered what transpired at the interrogation. The court also received testimony from Salcedo and Sutton, as well as from defendant himself. Defendant acknowledged he had understood the Miranda rights that were read to him at the start of the interrogation, and admitted there were no threats, no weapons, no handcuffs, and no promises from the investigators during the investigation. Defendant said he knew what an attorney was, because he had been represented by an attorney in juvenile court. Defendant had agreed to speak with the investigators, because he felt it would "seem funny" if he did not do so. He explained that, as the hours went on, he was "sort of being worn down" and getting tired and stressed as the investigators got tougher in their questioning. Defendant also admitted having lied to the investigators during the interrogation. The recording of the interview showed that defendant was deceptive throughout the five-hour session and admitted to wrongdoing only when confronted with evidence or caught in a lie.

In announcing its ruling, the trial court made an explicit finding that, based on its reading of the transcripts, listening to testimony, and viewing the recorded interview, defendant had "zero credibility." Then, after determining that defendant had made a knowing, intelligent, and voluntary waiver of his Miranda rights at the outset of the interrogation, the court addressed the issue at the heart of this matter. Summarizing the details of the interrogation and viewing defendant's statements in context, the court found that, whenever defendant requested to speak to his mother, he did so because he wanted to tell his mother what was going on and to ask her what he should do. The court further found that, even if defendant subjectively desired attorney assistance, his statements were objectively ambiguous because they were limited to the issue whether or not he should take the polygraph test. That is, although defendant indicated reluctance to take the test without speaking to his mother or a lawyer, he "continued to consent to voluntarily talk" to the authorities on other topics. The court also observed that, "even though in his own mind he thought his mother was [only] ten minutes away," defendant went ahead and signed a written confession without waiting for her arrival. Relying on ..... the court found that defendant did not invoke his Miranda rights, and that even if there was a request for an attorney, it was ambiguous and did not require cessation of the interview. As we shall explain, the trial court's conclusions are both legally and factually supported.

Our review of the transcribed and videotaped interview finds ample support for the trial court's resolution of the conflicting inferences that may be gleaned from defendant's various requests and statements.... After waiving his Miranda rights, defendant was open and responsive to questioning on any topic. Defendant, who was 15 years old, appeared confident and mature. About three and a half hours into the interview, the investigators asked why defendant hurt Thompson and whether he was willing to take a polygraph test. Defendant responded by asking to call his mother, and, when asked the reason for the call, he offered no indication that he wanted an attorney or that he did not want to talk further. Instead, he specifically stated he wanted to let his mother "know what's happening" and to ask her what he should do because he was being accused of murder. On this record, the trial court properly concluded that a reasonable officer in the circumstances would not have viewed defendant's request to call his mother as a clear and unequivocal invocation of the Miranda rights.

As the interrogation proceeded, defendant asked several more times to call his mother when the investigators again asked about a polygraph test, or why he hurt Thompson. The investigators generally did not inquire into the reasons for the subsequent requests, but defendant clarified a second time that he wanted to let his mother know "what's going on right now" and where he was. Given the circumstances surrounding each of defendant's requests, a reasonable officer would not have understood any of them as an unambiguous assertion of Miranda rights. Although defendant became increasingly upset during the interview, and quieter toward the end, the questioning properly continued because defendant never communicated an intent to stop the interview altogether.

On this record, we conclude the trial court did not err in denying defendant's in limine motion. A reasonable officer in the circumstances would not have understood defendant's requests to call his mother, or any of his other statements, to be unambiguous and unequivocal invocations of his Miranda rights.... Accordingly, investigators Salcedo and Sutton were not required to stop their questioning, and defendant's custodial statements were properly admitted at trial."

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Second case:

In the case State v. Diaz-Bridges (Jan. 2012) the Supreme Court of New Jersey considered the issue of whether the defendant's statements about his desire to speak with his mother were assertions of his constitutionally-protected right to silence.

"Because of the nature of the analysis undertaken by the trial and the appellate courts and the issues raised before this Court, we recount in detail what happened during the nearly ten hours of interview that followed.

At 11:25 a.m., when the questioning started, the detectives advised defendant of his Miranda rights, which he acknowledged that he understood and waived. The detectives then reminded defendant that there were outstanding warrants for him in New Jersey in matters unrelated to the O'Brien murder and advised him that he had the right to have a public defender present for any questioning concerning those unresolved matters. Defendant was also told that an attorney had been assigned to represent him in his unrelated Morris County cases and that he had the right to have that attorney present during their interview with him. After acknowledging that he was aware of these rights, defendant waived them as well.

During the first three hours of the interrogation, defendant denied committing the murder. Instead, he gave an account of his activities on the day of the murder and attempted to divert attention from himself by suggesting that two other young men in the neighborhood were probably the culprits. Eventually, he told the detectives that the victim's son Tyler had committed the murder and had confessed to him. His explanation, all delivered in a tone and with gestures suggesting he was only trying to help the detectives find the killer, was inconsistent with some of his prior statements and with other information about the crime that the detectives had already learned.

..... At approximately three hours and forty-two minutes of elapsed time, defendant was asked again what happened on the day of the murder. After a momentary pause, defendant said, "Can I just call my mom first?" Wilson then responded by telling defendant that they wanted "to hear first what you have to say because we, you want ... right now you got to get it off your chest." As defendant continued crying softly, Caruso asked if he wanted to talk to his mother because he was ashamed. For the next few minutes the detectives both consoled him and tried to prompt him to tell them what happened. Apart from several comments not responsive to any questions, defendant cried and sniffled.

..... After defendant confessed, the detectives asked if he wanted anything and offered him a tissue. He responded by saying that he wanted to talk to his mother. Wilson told defendant that they would arrange a call with his mother, but that they wanted defendant to relax and get his thoughts together. The detectives then took a thirty minute break while Dangler remained with defendant. During the break, defendant again asked if he could speak to his mother, and Dangler replied that they would arrange it. Minutes later, after defendant again asked if he could make that phone call, Dangler left the room, telling defendant that he would ask about the phone.

... When the interrogation resumed, defendant again began to ask to talk to his mother, repeating his request numerous times during the next three-quarters of an hour. Most significant were his comments to the detectives about the reasons why he wanted to speak with her. In particular, he explained that he wanted to talk to her so that he could "stay calm," that he believed she was the only one who would understand, and that he wanted her to hear what he had done from him rather than from the police. In response to one of these statements, Wilson asked defendant directly, "Do you, do you still wish to talk to us?" and defendant replied by saying: "yes[.] I have no problem talking to you; I just want to talk to my mom. That's it."

... In this appeal, that review leads us to the inescapable conclusion that defendant's request to speak with his mother, however frequently and fervently repeated, sprang from the very understandable desire to tell her what he had done before she heard it from the police and to hear her words of comfort. Those requests, based on all of the circumstances, did not at any time constitute defendant's invocation of his right to silence.

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