In State v. Clark, 251 N.J. 266, 273 (2022), the Court addressed a case in which law enforcement officers failed to uphold the basic principle that when a suspect invokes the right to counsel, law enforcement must cease the interrogation.

In Clark, the police responded to a report about an unresponsive man in a car on the side of the road, and found the victim in the passenger’s seat of his vehicle, still warm to the touch.  Id. at 275.  Paramedics arrived shortly thereafter and, in attempting to remove him from the car, observed that the victim had entry wounds from five close-range gunshots in his abdomen.  Ibid.  A subsequent search of the vehicle revealed a receipt that showed the victim paid $1,050 in October 2015 to bail the defendant out of jail, and a receipt timestamped 9:52 a.m. on the morning of his death from the Delaware Park Casino.  Ibid.

Surveillance cameras at the Delaware Park Casino showed the defendant and the victim  arrived at the casino at approximately 8:34 a.m. and depart at approximately 11:00 a.m.  Id. at 275-76.   Surveillance cameras at the Riverfront Motel showed the defendant and the victim returned to the motel at approximately 12:21 p.m., and departed at approximately 1:34 p.m.—the defendant drove the car and the victim was in the passenger seat.  Id. at 276.  At 3:28 p.m., surveillance video showed the defendant return to the motel alone and on foot.  Ibid.

The defendant was convicted of murder and sentenced to life imprisonment.  At trial, the State played for the jury the defendant’s videotaped statement to police prior to his arrest, during which the police pressed the defendant about his alibi and confronted him with their theory that the defendant killed the victim.  Id. at 273-74.  In response, the defendant said, “charge me, call my attorney Mr. Keisler over here, charge me and let’s go.”  Id. at 274.  The interrogation continued, however, even though the defendant again advised the officers that he wanted to call his attorney.  Ibid.  The officers urged the defendant to tell them who he had been with during the time of the murder and suggested that he did not want to tell them because he was lying, and therefore guilty.  Ibid.  After the defendant asked the officers to call his attorney for a third time, the interrogation finally ended.  Ibid.  “When the statement was played for the jury at trial, the jury heard defendant’s invocation of his right to counsel as well as the officer’s continued questioning and their insinuations of his guilt.”  Ibid.  Further, during summation, the State argued that the detective had “practically begged” the defendant to provide information regarding his alibi, but the defendant refused, which suggested his guilt.  Ibid.

In a split decision, the Appellate Division vacated the defendant’s conviction and remanded the matter for further proceedings based on cumulative error.  Ibid.  However, the  majority “took no issue with, the fact that the jury heard defendant’s invocation of his right to counsel during the statement he gave to the police.”  Ibid.  The State appealed as of right pursuant to Rule 2:2-1(a)(2), to the New Jersey Supreme Court.  Id. at 284.

            The New Jersey Supreme Court affirmed, as modified, and vacated the defendant’s conviction and remanded for a new trial based on a violation of the defendant’s Fifth Amendment rights.  Ibid.  The Court found that “[o]nce defendant invoked his right to counsel, the interrogation should have stopped.  Not only did the interrogation continue, but during the questioning, the detective strongly suggested that defendant would give them the information they sought if he were truly innocent.  Allowing that entire exchange to be played for the jury was harmful error.  In addition, the error was compounded when the prosecutor commented on that portion of the statement that should have never been before the jury in the first place.”  Id. at 274-75.

The Court explained that the “Fifth Amendment of the United States Constitution, applicable to the States through the Fourteenth Amendment . . . guarantees that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself’ . . . .   Although not included in the New Jersey Constitution, the right against self-incrimination is deeply rooted in New Jersey common law and is codified by statute and the Rules of Evidence.”  Id. at 291.  Under Miranda v. Arizona, 384 U.S. 436, 474, 479 (1966), individuals who are subjected to police interrogation while in custody, must be advised of the right to the presence of an attorney, and if the individual states that he or she wants an attorney, the interrogation must cease until an attorney is present.  Clark, 251 N.J. at 291.

The Court in Clark found that once the defendant invoked his right to counsel, the detectives were not justified in continuing the interrogation under New Jersey law.  Id. at 294. “There is no question that the interrogation should have ended at that point and that portion of the recording should have been excised from the statement played, not once, but twice for the jury.”  Ibid.  Further, it was error to play for the jury the portion of the statement wherein the defendant invoked his right to counsel, and the Detective continued questioning him, and that error was further emphasized by the prosecutor’s comments in summation.  Thus, “[g]iven the State’s circumstantial case, allowing all that to go before the jury was clearly capable of producing an unjust result.”  Ibid.

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