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New Jersey Supreme Court: Allowing Jury to Hear Defendant’s Invocation of Right to Counsel in Recorded Statement Together With Prosecutor Inferring Guilt Based on Request for Counsel Entitles Defendant to New Trial

by Jacob Barrett

The Supreme Court of New Jersey reversed the convictions and sentence of Quinnizel J. Clark, ruling that allowing a jury to hear the invocation of his right to counsel and the prosecutor’s comments in summation could have led to a result it otherwise might not have reached.

Police found the body of James Dewyer in his vehicle on the side of the road. Video evidence showed Dewyer being picked up earlier that day by Clark at a motel where the pair drove to a casino. Later video footage showed Dewyer and Clark return to the motel and leave in Dewyer’s vehicle. Video showed Clark subsequently return to the motel alone and then leave after changing clothes.

Clark was read his Miranda rights and waived them, agreeing to provide a recorded statement about Dewyer’s death. Detective Wayne Raynor and another officer conducted the interrogation, and after about 40 minutes, the questioning turned aggressive and accusatory. At that point, Clark invoked his right to counsel, stating “charge me, call my attorney Mr. Keisler over here, charge me and let’s go.” Despite having invoked his right to counsel, the interrogation continued, and Clark invoked his right to counsel yet again to no avail because the interrogation continued unabated. Police finally stopped the interrogation after Clark invoked his right to counsel a third time but arrested him on unrelated outstanding traffic warrants.

Clark was charged with first-degree murder and weapons offenses. The trial court denied his motion to suppress his statement. When the statement was played at trial, the jury heard Clark’s invocation of his Miranda rights and the continued interrogation including the officer’s insinuation of his guilt. During closing argument, the prosecutor told the jury that detective Raynor “practically begged” Clark to provide information about his alibi but that Clark had refused, implying he was guilty.

Clark was found guilty of murder and sentenced to life in prison. He timely appealed, arguing, among other issues, that his Fifth Amendment rights were violated by the admission of his statement that included his invocation of this right to counsel and the prosecutor’s reference to that invocation.

The Court of Appeals of New Jersey (“Appellate Division”), in a split decision, vacated Clark’s conviction and remanded for a new trial based on cumulative error, which didn’t include his invocation of his right to counsel, though.

The State appealed as a matter of right, and the Supreme Court granted certification to determine whether Clark’s Fifth Amendment rights were violated.

The Court noted that the Fifth Amendment applies to the states through the Fourteenth Amendment, see State in Int. of A.A., 222 A.3d 681 (N.J. 2020), and guarantees that no person “shall be compelled in any criminal case to be a witness against himself.” This right is not included in the state Constitution, but the principle is “deeply rooted in New Jersey common law and is codified by statute and the Rule of Evidence,” the Court stated. See N.J.S.A. 2A:84A-19; N.J.R.E. 503.

In the seminal case Miranda v. Arizona, 384 U.S. 436 (1966), the U.S. Supreme Court held that a person in custody or otherwise deprived on their freedom of action must be advised of his right to remain silent and right to have an attorney present during questioning. Under Miranda, all questioning must stop if the suspect “indicates in any manner … during questioning, that he wishes to remain silent” or that he wants an attorney.

The Court observed that the state Supreme Court has repeatedly reaffirmed that the “privilege against self-incrimination … is one of the most important protections of the criminal law.” State v. Presha, 748 A.2d 1108 (N.J. 2000). The New Jersey privilege provides broader protection than its federal counterpart, the Court explained, because the state privilege holds that “a suspect need not be articulate, clear, or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous, will trigger the entitlement to counsel.” State v. Reed, 627 A.2d 630 (N.J. 1993); see State v. Chew, 695 A.2d 1301 (N.J. 1997) (rejecting the federal standard first articulated in Davis v. United States, 512 U.S. 452 (1994), that requires the invocation of counsel to be “unambiguous or unequivocal” in order to stop any further questioning).

In situations where a defendant initially waived his Miranda rights and agreed to talk with the police but subsequently invoked his right to counsel during the interrogation, the New Jersey Supreme Court requires trial courts to do their best to remove “any reference to a criminal defendant’s invocation of his right to counsel” from the defendant’s statement the jury hears. State v. Feaster, 716 A.2d 395 (N.J. 1998). The Court explained that “it would be counterintuitive for suspects to be told that they have the right to not speak, to ask for an attorney, and to stop the interrogation at any time, if at the same time their invocation of those rights could be used against them at trial.” See United States v. Hale, 422 U.S. 171 (1975) (White, J., concurring in the judgment) (“[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, … and that he may have an attorney if he wishes, … it does not comport with due process to permit the prosecution during trial to call attention to his silence …  and to insist that … an unfavorable inference might be drawn….”). A trial court’s violation of Feaster isn’t necessarily reversible or plain error per se; instead, it requires a harmful error inquiry to determine whether the defendant was deprived of a fair trial. State v. Tung, 213 A.3d 231 (N.J. App. Div. 2019). 

Turning to the present case, the Court concluded that it was error for the trial court to allow the jury to hear the portion of Clark’s statement where he invoked his right to counsel yet Raynor continued to question him, and the error was compounded by the prosecutor inferring Clark was guilty by indirectly commenting on Clark’s invocation of his right to counsel during closing argument.

The Court stated that all questioning of Clark should have stopped when he first invoked his right to counsel by stating, “charge me, call my attorney Mr. Keisler over here, charge me and let’s go.” That portion of Clark’s statement should have been excised from the recording of interrogation before being played for the jury, according to the Court.

The Court concluded that permitting the jury to hear Clark’s invocation of his right to counsel, the police interrogators’ statements afterwards, and the prosecutor’s comments during closing argument “could have led the jury to a result it otherwise might not have reached.” Because this was a purely circumstantial case, the Court ruled that it was harmful for the jury to hear the foregoing.

Accordingly, the Court affirmed the judgment of the Appellate Division as modified and remanded for a new trial consistent with its opinion. See: State v. Clark, 276 A.3d 1126 (N.J. 2022).  

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