New Jersey Supreme Court Orders New Trial Because Detective Failed to Clarify Suspect’s Ambiguous Request for Counsel During Interrogation
by Douglas Ankney
The Supreme Court of New Jersey reversed the convictions of Laura Gonzalez because a detective failed to clarify Gonzalez’s ambiguous request for counsel during her interrogation and because the trial court allowed inadmissible testimony from witnesses.
In 2017, police questioned Gonzales – after providing her with warnings required by Miranda v. Arizona, 384 U.S. 436 (1966) – regarding injuries to the infant (“Tommy”) for whom Gonzalez served as a nanny. Tommy had two fractures in his right leg and one in his left leg. In the middle of the interrogation, Gonzalez asked the detective, “But now what do I do about an attorney and everything?” Instead of seeking clarification, the detective merely advised Gonzalez, “That is your decision. I can’t give you an opinion about anything.” Later in the interrogation, Gonzalez again asks, “You’re going to help me with an attorney.” The detective states, “I’m going to help you with an attorney? Or no –” Gonzalez says, “Yes.” And the detective advises, “Oh no, that is your decision what you want to do.”
Ultimately, Gonzalez admitted to abusing Tommy and, at the detective’s suggestion, wrote an apology note to Tommy’s parents in which she incriminated herself by describing what she had done to him.
After Gonzalez was charged with endangerment and aggravated assault, her attorney moved to suppress portions of her statement and the note, arguing that she had invoked her right to counsel during the interrogation. The trial court denied the motion, finding that Gonzalez’s statement was neither an assertion of her right to counsel nor even an ambiguous assertion of that right. At trial, the State played Gonzalez’s recorded statement, read the note aloud, and provided the jury with a transcript of her statement.
Also at trial, defense counsel objected to Lisa Borsuk’s (Tommy’s mother) hearsay testimony relating what Dr. Alia Khan had said during Tommy’s examination, viz., (1) “the Department of Child Protective Services had been called because it was clear child abuse;” (2) the manner in which the fractures occurred showed it was intentional; and (3) in 99% of such cases the abuse was intentional. The trial court overruled the objections, finding the statements were admissible as statements made for the purposes of medical diagnosis or treatment under N.J.R.E. 803(c)(4).
Furthermore, at trial Dr. Medina, testifying as the State’s expert, gave her opinion – based solely on Gonzalez’s statement – that the injuries were caused by Gonzalez twisting Tommy’s legs and throwing him two to three feet. Medina also opined that “normal caregiving does not cause fractures.” Defense counsel did not object to any of Medina’s testimony.
The jury found Gonzalez guilty of second-degree endangering the welfare of a child and simple assault. Gonzalez appealed, arguing, inter alia, that the trial court: (1) erred in denying her suppression motion; (2) abused its discretion when overruling her objection to Borsuk’s testimony; and (3) erred when it allowed Medina’s testimony. The Appellate Division affirmed, and the New Jersey Supreme Court granted Gonzalez’s petition for certification.
The Court observed: “Our review begins with the constitutional safeguards established by the United States Supreme Court to ensure that a person subject to custodial interrogation is ‘adequately and effectively apprised of his rights.’” Miranda. When an “individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Id. “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Id.
“The United States Supreme Court has drawn a strict line to identify what will qualify as a request for counsel.” State v. Alston, 10 A.3d 880 (N.J. 2011). “Under the federal bright-line rule, officers must stop questioning a suspect only when the suspect’s request for counsel is ‘unambiguous or unequivocal.’” Davis v. United States, 512 U.S. 452 (1994). When a suspect makes an ambiguous or equivocal statement regarding the right to counsel, police are under no obligation to stop questioning him. Id. However, the New Jersey Supreme Court has rejected the federal bright-line rule. See State v. Chew, 695 A.2d 1301 (N.J. 1997) (In rejecting the federal rule, the Court announced that “[b]ecause the right to counsel is so fundamental, an equivocal request for an attorney is to be interpreted in a light most favorable to the defendant.”).
In State v. Wright, 477 A.2d 1265 (N.J. 1984), the New Jersey Supreme Court established that a suspect’s statement that “I won’t sign any more deeds [or waivers] without my lawyer present” amounted to an invocation of his right to counsel, and “the interrogating agent was under an obligation to clarify the meaning of [the suspect’s] remark before proceeding with further questioning.” And post-Davis, the state Supreme Court has repeatedly reaffirmed that, in situations where “a suspect’s statement ‘arguably’ amounted to an assertion of Miranda rights,” conducting a follow-up inquiry is the only way to ensure that a suspect’s waiver of his right was voluntary. Alston. Questioning must cease until it is clarified that the suspect is not invoking his Miranda rights. Id.
The New Jersey Supreme Court explained its position on this issue when it held that “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, 627 A.2d 630 (N.J. 1993).
Based on the foregoing discussion of the law, the Court interpreted Gonzalez’s question “[b]ut what do I do about an attorney and everything” to be an ambiguous invocation of the right to counsel. Since the detective made no attempt at clarifying Gonzalez’s intent, her statement and all incriminating remarks, including the note, should have been excluded, the Court ruled.
Turning to the issue of Medina’s testimony, since no objection was made, the Court reviewed for plain error, i.e., “an unchallenged error constitutes plain error if it was clearly capable of producing an unjust result.” State v. Singh, 243 A.3d 662 (N.J. 2021). Expert testimony is admissible: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” N.J.R.E. 702. But trial judges function as gatekeepers and “must ensure that expert evidence is both needed and appropriate, even if no party objects to the testimony.” State v. Sowell, 61 A.3d 882 (N.J. 2013). Additionally, witnesses are prohibited from basing their testimony on inadmissible evidence. State v. Frisby, 811 A.2d 414 (N.J. 2002).
In the present case, the Court stated that Medina based her expert opinion on Gonzalez’s inadmissible statement. Because Medina relied on impermissible evidence in forming her opinion as to how Tommy developed his injuries, the Court determined that the admission of Medina’s testimony was plain error. Further, Medina should not have been permitted to opine on the obvious when noting that “normal caregiving” doesn’t involve throwing or pulling a child’s legs because that is knowledge that the average juror possesses and doesn’t require expert testimony to aid the juror, explained the Court. Sowell.
With regard to Borsuk’s testimony about what Khan told her, hearsay testimony is inadmissible unless an exception to the hearsay rule applies. N.J.R.E. 802. If a hearsay exception applies, the testimony may still “be excluded if its probative value is substantially outweighed by the risk of ... undue prejudice.” N.J.R.E. 403(a). However, N.J.R.E. 803(c)(4) admits hearsay testimony that is “reasonably pertinent to, medical diagnosis or treatment” and describes “past or present symptoms or sensations; their inception; or their general cause.” In the context of a case like the present one, the rule “is directed at patients and cannot be used to introduce hearsay statements by physicians.” Biunno, Current N.J. Rules of Evidence, cmt. on N.J.R.E. 803(c)(4) (2021). Further, N.J.R.E. 803(c)(4) does not permit testimony “as to the cause of physical symptoms.” Id.
Borsuk testified to statements that Khan made to her about the cause of Tommy’s symptoms, not statements made to Khan for the purpose of his medical diagnosis or treatment. Thus, the Court ruled that N.J.R.E. 803(c)(4) does not apply, and thus, the trial court abused its discretion by admitting Borsuk’s hearsay statement concerning what Khan allegedly said.
Thus, based upon all of the foregoing errors, the Court concluded that Gonzalez was entitled to a new trial.
Accordingly, the Court reversed the judgment of the Appellate Division and remanded the matter to the trial court for further proceedings consistent with the Court’s opinion. See: State v. Gonzalez, 268 A.3d 329 (N.J. 2022).
Editor’s note: It is important to understand that the defendant in this case prevailed on the invocation of her right to counsel issue because of New Jersey case law, which holds that an ambiguous or equivocal invocation of one’s right to counsel is sufficient to compel law enforcement to stop all questioning and to trigger an inquiry clarifying the suspect’s intent regarding the invocation of the right to counsel or waiver thereof. See Alston.
In contrast, under federal law, an ambiguous or equivocal statement indicating that the suspect might be invoking the right to counsel is not sufficient to require the cessation of questioning by law enforcement. Davis. In Davis, the defendant said “Maybe I should talk to a lawyer.” SCOTUS ruled that that statement is not an unambiguous request for counsel. Id.
It should be noted that not all states have adopted additional safeguards like New Jersey to protect suspects’ constitutional right to counsel. Many states are in lockstep with federal law on the issue of invocation of the right to counsel. Consequently, the most foolproof and best way to invoke one’s right to counsel regardless of jurisdiction is to do so in a clear and unambiguous manner, e.g., “I am invoking my right to counsel. I am not answering any questions until after I speak with a lawyer.”
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State v. Gonzalez
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