(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 22, 1996 -- Decided June 26, 1997
O'Hern, J., writing for a majority of the Court.
This is a capital murder case. Police found the body of Theresa Bowman in the driver's seat of a
Corvette parked in the rear of the parking lot of the Woodbridge Hilton at approximately 9:00 a.m. on
January 13, 1993. Ms. Bowman's throat had been slashed. She had been dead for about ten hours.
The Corvette was registered to defendant. Defendant had been living with Ms. Bowman since 1989
in Mystic Island. Police interviewed defendant at his residence the following afternoon. Defendant admitted
to seeing Ms. Bowman the prior evening, but stated that Ms. Bowman had dropped him off at the home of
defendant's sister and had driven off alone in the Corvette. Defendant claimed that his sister drove him
home later that evening. Defendant's sister and her roommate gave statements that were consistent with
defendant's statement.
Police then learned that defendant was the beneficiary of a $250,000 insurance policy on Ms.
Bowman's life. Two witnesses, one defendant's former employee and the other defendant's son, told police
that defendant had previously expressed an intent to kill Ms. Bowman to secure the proceeds of the
insurance policy. Another witness testified that he and Ms. Bowman had been having an affair since late
1992, and that Ms. Bowman planned to leave defendant on January 13, 1993.
After receiving this information, police arrested defendant at his residence on the morning of
January 23, 1993. Defendant asked the police to bring his medicine for his bad back. Defendant also
requested his mother to call his attorney as he was leaving.
Defendant gave a taped statement to police at 10:53 a.m. In the statement, defendant placed
himself at the murder scene and acknowledged that his sister and her roommate had driven him home.
Shortly afterward, while still undergoing interrogation, defendant asked for permission to call his attorney.
Defendant's attempts to reach his attorney were not successful, but all questioning ceased.
Defendant's sister and roommate were questioned by other investigators at approximately the same
time. They admitted that they had fabricated their prior story exculpating defendant. They told police that
after receiving a call from defendant, they had picked him up at the Woodbridge Hilton at approximately
9:20 p.m. on the night of the murder. When they arrived at the Hilton, defendant jumped out of his
Corvette and got into his sister's car. Defendant's clothes were bloody. Defendant changed his clothes
while they were driving away and discarded the bloody clothes in a dumpster.
After asking to call his attorney, defendant was handcuffed to a cushioned chair instead of being
placed in a cell, allegedly because of defendant's back pain and because police were afraid he might be
suicidal. At 4:00 p.m., defendant was formally charged with murder. He complained, again, about back pain,
and was given medication.
At 6:00 p.m., defendant asked to speak with the lead detective. Defendant was crying when the detective entered the room, and initiated conversation about the potential penalties he faced. Police administered Miranda warnings again. Defendant then gave a statement indicating that he and Ms. Bowman went to the Woodbridge Hilton to sell a kilo of cocaine. Defendant said he left the car and permitted Ms. Bowman to conduct the deal, since the buyer was Ms. Bowman's contact. When defendant returned to the car some 45 minutes later, Ms. Bowman stated that she had been “ripped off” by the buyer. Defendant and Ms. Bowman argued. Defendant stated that when Ms. Bowman told him she was sleeping with another man
he “went off” on her. Defendant said he was very frightened because there was “blood all over.” He
further stated that he did not remember stabbing Ms. Bowman or committing the murder.
Defendant was indicted for purposeful or knowing murder by his own conduct and other charges.
He was served notice of an aggravating factor that made him eligible for a death sentence -- because he
killed Ms. Bowman “as consideration for the receipt, or in expectation of the receipt of anything of pecuniary
value.” N.J.S.A. 2C:11-3c(4)(d).
Defendant moved to dismiss the aggravating factor, arguing that the (4)(d) factor required a contract
to kill and did not include murder for the purpose of securing the proceeds of an insurance policy. The trial
court denied defendant's motion, filing a published opinion. State v. Chew,
278 N.J. Super. 391 (Law Div.
1994). Defendant then moved to suppress all of the statements he made on the day of his arrest. The trial
court granted the motion in part and denied it in part. The court found that defendant's first custodial
statement was obtained in violation of his right to counsel. It also found, however, that defendant voluntarily
initiated contact before making the evening statement and therefore voluntarily waived his right to silence
and counsel as to that statement.
On June 13, 1995, the jury found defendant guilty of purposeful or knowing murder by his own
conduct and weapons offenses. It also found the existence of the (4)(d) aggravating factor, murder for
pecuniary gain, as well as the catch-all mitigating factor. The jury unanimously found beyond a reasonable
doubt that the single aggravating factor outweighed the mitigating factors, and sentenced defendant to death.
Defendant appealed to this Court as of right. The State was permitted to cross-appeal on certain evidentiary
rulings.
HELD: Defendant's death sentence is affirmed. The (4)(d) aggravating factor includes killing to obtain
insurance proceeds. After defendant invoked his right to remain silent and have the assistance of counsel, he
voluntarily initiated further conversation with police and waived the protections of the Fifth Amendment.
The trial court correctly charged the jury that in order to convict defendant of capital murder it must
unanimously agree that defendant had committed the murder by his own conduct.
1. The plain language and the history of the (4)(d) aggravating factor indicate an intent to apply the factor
to murders other than murders for hire. Almost every jurisdiction that has considered a broadly-worded
pecuniary gain aggravating factor has applied the factor to killings to collect insurance proceeds. The factor
is limited, however, to a killing that is an essential prerequisite to the receipt of the pecuniary gain and does
not apply to a killing that merely results in pecuniary gain. (pp.14-24).
2. Defendant initiated the evening discussion with police after invoking his right to silence and counsel.
Given the totality of the circumstances, the State has shown that defendant's waiver at this time was
knowing, intelligent and voluntary. Further, the evening statement was not tainted by the one obtained
earlier in the day, which the trial court properly found to be inadmissible. (pp. 24-40).
3. Defendant argues that the trial court erred in not including elements of an accomplice instruction in its
charge that the jury must find that defendant committed the murder by his own conduct. Defendant claims
that such a charge was necessary because some evidence indicated that defendant might have been involved
in the murder, but did not himself commit it. Defendant's trial counsel would not, however, permit the trial
court to charge the jury on accomplice liability in the guilt phase, since to do so might have exposed
defendant to a guilty verdict as an accomplice. In any event, only the most generous interpretation of this
record would provide a rational basis for an accomplice charge. The Court is satisfied that defendant
suffered no prejudice due to the failure to instruct on accomplice liability. (pp. 41-50).
4. None of the other errors claimed by defendant warrant reversal. (pp. 50-66).
Defendant's murder conviction and death sentence are AFFIRMED.
JUSTICE HANDLER, dissenting, in which JUSTICE STEIN joins, in part, is of the view that the
(4)(d) aggravating factor applies only to one who is hired to kill. In addition, Justice Handler finds that the
trial court's charge on the (4)(d) factor failed to explain the limitations that the majority itself engrafts on it.
He also believes that defendant was entitled to a definition of the term “accomplice” in the court's charge
on the element of “own conduct;” and that the admission of certain witnesses' prior consistent statements
was reversible error.
CHIEF JUSTICE PORITZ AND JUSTICES POLLOCK, GARIBALDI, and COLEMAN join in
JUSTICE O'HERN's opinion. JUSTICE HANDLER has filed a separate dissenting opinion. JUSTICE
STEIN, concurring and dissenting, joins in the majority opinion insofar as it affirms defendant's
convictions and join in Part I.A. of JUSTICE HANDLER's dissent.
SUPREME COURT OF NEW JERSEY
A-
77 September Term 1996
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN CHEW,
Defendant-Appellant.
Argued October 22, 1996 -- Decided June 26, 1997
On appeal from the Superior Court, Law
Division, Middlesex County.
Matthew Astore, Deputy Public Defender II,
and Jacqueline E. Turner, Assistant Deputy
Public Defender, argued the cause for
appellant (Susan L. Reisner, Public Defender,
attorney).
Bennett A. Barlyn, Deputy Attorney General,
argued the cause for respondent (Peter
Verniero, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
O'HERN, J.
This is a capital murder case. A jury has found defendant
John Chew guilty of murdering his former companion in order to
obtain insurance proceeds on her life. Major issues raised in
his appeal are: (1) whether the statutory aggravating factor,
N.J.S.A. 2C:11-3c(4)(d), which makes death-eligible a "murder as
consideration for the receipt, or in expectation of the receipt
of anything of pecuniary value," only covers contract killings
and not killings to obtain insurance proceeds; (2) whether
statements taken by police after defendant had asked for an
attorney were admitted in violation of his constitutional rights;
and (3) whether defendant was denied his fair-trial right to have
the jury consider the non-capital verdict of murder as an
accomplice. In addition, defendant asserts that various other
trial errors require reversal of his conviction.
We find (1) that N.J.S.A. 2C:11-3c(4)(d) does cover a
killing to obtain insurance proceeds; (2) that after defendant
had invoked his right to remain silent and to have the assistance
of counsel, he voluntarily initiated further conversation with
police and waived the protections of the Fifth Amendment and the
state privilege against self-incrimination; and (3) that the
court correctly charged the jury that in order to convict
defendant of capital murder it must unanimously agree that
defendant alone had committed the murder by his own conduct. No
other trial errors taint the verdict, and we affirm the
conviction of capital murder and the sentence of death. We will
conduct proportionality review of defendant's sentence in later
proceedings.
At approximately 9:00 a.m. on January 13, 1993, police found the body of Theresa Bowman in the driver's seat of a Corvette parked in the rear of the parking lot of the Woodbridge Hilton. Ms. Bowman had been dead approximately ten hours. Her throat had
been slashed. Found with the body was a piece of paper with a
Newark beeper number and the name "Joe Martin" written on it.
The Corvette was registered to John Chew of Mystic Isle.
The police contacted Chew and set up an appointment to meet at
Chew's residence that afternoon. Prior to meeting with Chew, the
police interviewed Alejandro Mecalco, a chef at the Woodbridge
Hilton. Mecalco stated that he had seen a man "grabbing" a woman
in the car. He described the man as having "a round face, dark
eyes, full beard, mustache, and fine hair, well combed." A
police sketch depicted this man as similar in appearance to Kenny
Rogers, a contemporary recording artist. A police officer who
had patrolled the Woodbridge Hilton parking lot that night stated
that he saw two persons in the car, one of whom had blond hair.
When police arrived at Chew's residence at 4:10 p.m. on
January 13, Chew appeared "unkempt." Chew did not have a beard
and did not match the description provided by Mecalco. He was in
pain and exhibited a wobbly gait. Chew told the police that he
had back and foot injuries resulting from a recent fall while
working as a roofer. During this meeting, the police obtained
Chew's first statement. The setting was non-custodial and
informal. Chew spoke with the police for approximately fifteen
minutes. Chew said that he had last seen Ms. Bowman on the
evening of January 12, 1993, when she left for a Woodbridge
restaurant to pick up her paycheck to cover an overdrawn check
that she had used to buy pain medication for Chew.
According to this first statement, both Ms. Bowman and
defendant drove to the home of Chew's sister, Crystal Charette,
and Theresa subsequently drove off alone in defendant's Corvette.
John had loaned his second car to Crystal. Chew claimed that
after Theresa left, he remained at Crystal's home with Crystal
and her roommate, Helen Borden, for an hour-and-a-half before
both women drove him home.
After the police left, Chew drove to Crystal's home to speak
with Crystal and Helen. Chew told them that he was about to be
blamed for something that he did not do. He said that a drug
deal had turned bad and that he needed an alibi. He asked them
to tell the police that they had visited him on the evening of
January 12 and had remained at his home the entire evening. They
agreed.
Shortly after midnight on January 14, 1993, Woodbridge
Detective Geoffrey Kerwin, the lead investigator in the Bowman
murder, interviewed Crystal and Helen at Crystal's home. At that
meeting, Crystal and Helen corroborated Chew's first statement.
In the early afternoon of January 14, Detective Kerwin again
visited Chew to request an interview and to obtain consent to
take blood samples and to search Chew's home and car. Although
not in custody, Chew signed a waiver of rights prior to the
interview. In a brief taped statement, Chew repeated the story
he had told the police on January 13, and provided information
about his relationship with Ms. Bowman. The two had met in
January 1988, when Theresa was twenty-three or twenty-four, and
Chew was about twelve years older. Chew then was working as a
roofer installing shingling. By 1989, they were living together.
At the time of the murder, the couple lived in Mystic Island.
Upon completion of the search, the investigators traveled
with defendant to Crystal's home and obtained formal, taped
statements from Crystal and Helen. The taped statements
exculpated Chew.
On January 15, 1993, the police received a number of calls
suggesting a motive for the murder of Theresa Bowman: Chew was
the beneficiary of a $250,000 insurance policy on Ms. Bowman's
life. The first call was from the life insurance salesman who
had sold a joint policy to John and Theresa in 1991.
On New Year's Eve, 1992, thirteen days before the murder,
Chew stopped at the agent's home and stated that he wanted to pay
December's premium in cash because his check had bounced and he
did not want the policy to lapse. After calling his office and
suggesting other payment options, the agent finally accepted a
money order. No customer had ever before come directly to the
agent's home with cash.
George Tilton, a former employee of Chew, reported that in
1991 Chew had offered him $10,000 to kill Ms. Bowman. Tilton
told the police that Chew wanted the victim dead to collect the
insurance proceeds. Tilton testified that Chew proposed the
conspiracy repeatedly between June and November 1991.
The third caller was Chew's son, Robert Chew, who phoned the
police from the Ocean County Jail, where he was serving a
sentence for a number of crimes. Robert Chew claimed that in
December 1991, Chew had told him about the mutual life insurance
policy and about the plan to kill Ms. Bowman for the proceeds.
Randy F., a Linden mechanic, provided another piece of the
puzzle. Randy F. met Theresa in November 1992, while John was in
Florida. They commenced an affair and she spoke of leaving Chew.
Randy F. believed that Theresa planned to leave defendant and
move in with him on January 13, 1993, after Chew received money
from a settlement of an unrelated lawsuit. After the settlement,
Chew was to give Ms. Bowman one of his cars and $10,000. Randy
F. testified that Theresa phoned him on January 12 and said that
she and Chew were driving to a location on the Garden State
Parkway to pick up Chew's settlement check in the amount of
$28,000.
Thus, the State had a specific reason for why Chew acted and
when he did: the fear that Ms. Bowman was going to leave and
that Theresa might discontinue the life insurance policy. In the
morning of January 23, the police left for Chew's residence to
place him under arrest.
Chew's mother met the police at the door and informed them
that he was sleeping. Police roused Chew and Detective Kerwin
placed defendant under arrest. Chew asked the officers to bring
medicine for his back pain. As defendant was leaving, in the
custody of the police, he asked his mother to phone his attorney,
Stephen Secare.
Another team of investigators went to defendant's sister's
home. In the first of several additional statements, Crystal
said that John had called her from his home on the night of the
murder and asked her to pick him up from the Woodbridge Hilton
later that night. Crystal said that John told her that he and
Theresa were going to pick up Theresa's paycheck from her place
of work, and that although defendant wanted to return
immediately, Theresa intended to stay with friends.
Crystal arrived at the hotel parking lot at about 9:20 p.m.
She spotted a Corvette, but she was not sure whether it was her
brother's car. Crystal moved her car closer, and saw defendant
get out of the Corvette. He was not injured, but there was blood
on his clothes. Crystal denied having asked her brother any
questions about what had happened.
Defendant removed his outer clothes, put them in a plastic
bag, and instructed Helen (who had accompanied Crystal) to pour
bleach into the bag. The bag and bleach were already in the car.
Crystal denied seeing a knife. Defendant dumped the bag
containing the bloodied clothes. Crystal told the police that
after returning to Chew's home, he told her what to tell the
police and threatened her to remain quiet.
Helen Borden told much the same story. She said that she
heard a "scream" that she thought came from the Corvette. About
a minute later, defendant came running out of the Corvette and
got into the car.
Crystal, Helen, and defendant were brought to the Ocean
County Prosecutor's Office. Crystal and Helen were questioned
separately and defendant was placed in a different room for a
polygraph (lie-detector) test. He was given medication for his
back pain.
After confronting defendant with the inculpatory statements
of Crystal and Helen, Detective Kerwin read defendant his Miranda
warnings and began the first interrogation of the day at about
10:53 a.m. Defendant agreed to provide a taped statement, but
refused to sign a Miranda card and insisted that the taped
statement not discuss the murder. Defendant's taped statement
merely placed him at the scene and acknowledged that his sister
and Helen had driven him home from the Woodbridge Hilton that
evening.
After the taped statement concluded, defendant provided the
police with a more detailed version of the events. In this
retelling, defendant stated that he and Ms. Bowman had gone to
Woodbridge on January 12, 1993, to complete a drug deal. Ms.
Bowman was to handle the deal because only she knew "Joe," the
other drug dealer. Defendant stated that he had waited inside
the Hilton. Defendant returned to the car and found Ms. Bowman
murdered.
About 30 minutes after the morning interrogation had
concluded, defendant requested and was granted permission to call
his attorney, Stephen Secare. Defendant did not locate Mr.
Secare, but reached only an answering machine. All questioning
of defendant ceased.
Police then took defendant to the Woodbridge Police Station.
Allegedly due to defendant's back condition and concern that
defendant might be suicidal, Kerwin handcuffed defendant to a
cushioned chair in an office rather than place him in a jail
cell. At 4:00 p.m., defendant was formally charged with murder.
Defendant again complained about his back pain, and was again
given medication. About two hours later, defendant asked to
speak with Kerwin.
Defendant was crying when Kerwin entered the room.
According to Kerwin, defendant asked "[w]hat am I facing."
Kerwin did not mention the death penalty, but told defendant that
he might face thirty years or more in prison. Kerwin also
outlined potential lesser sentences. Defendant then began to
talk.
Chew again spoke of a cocaine deal, this time acknowledging
that Ms. Bowman was alive when he had returned from the Hilton to
the Corvette. She and defendant began to argue after Bowman
claimed she was "ripped off" by the buyer. When Theresa told
John she was having sex with Randy, defendant said that he "went
off" on her.
Detective Kerwin stopped defendant at that point, called in
another detective, readministered the Miranda warnings, and had
him sign a waiver. Between 6:13 and 6:24 p.m., Kerwin obtained a
second taped statement.
In this statement, defendant again acknowledged driving to
the Woodbridge Hilton with Ms. Bowman on the night of January 12.
He stated that the purpose of the trip was to sell a kilo of
cocaine that defendant had purchased while in Florida. (Chew's
brother (also named Robert Chew) later testified that while he
and defendant were in Florida, defendant showed him a kilo of
cocaine that defendant said he was bringing back to New Jersey to
sell.) As in the earlier story, defendant did not know the
prospective buyer because he was Ms. Bowman's contact.
According to defendant, while Ms. Bowman stayed in the car
waiting for the buyer, defendant went to wait in the doorway of
the Hilton. He never saw anyone get into the Corvette. After
approximately forty-five minutes, defendant returned to the car.
In this version, when defendant returned to the car, Ms. Bowman
was still alive. She told defendant that the contact did meet
her but "she got ripped off." The couple had an argument. Ms.
Bowman hit defendant "a couple of times in [the] face" and
scratched him in the chin. Defendant did not remember having
stabbed Ms. Bowman.
After fighting with Ms. Bowman, defendant left his Corvette
and met Crystal and Helen, who were waiting nearby in his other
car. Defendant asked them to pick him up because he and Ms.
Bowman were going to separate for a while after defendant gave
Ms. Bowman $10,000 of the $25,000 expected proceeds from the drug
deal. Defendant remembered feeling very frightened because
"[t]here was just blood all over." Defendant repeated that he
did not know whether he committed the murder.
Defendant did remember changing his clothes and disposing of
his bloodied clothes in a dumpster. Defendant also remembered
begging his sister and Helen not to tell the police about the
events of the evening. He did not recall threatening them, but
acknowledged that "there's so much I don't remember."
After providing his statement, defendant was processed for
transfer to the Middlesex County Adult Correction Center. While
there, defendant met with two correctional officials, including a
registered nurse employed by the correctional institution. Both
testified for the State at the Miranda hearing that defendant did
not seem to be under the influence of any drugs or undue stress,
but rather appeared calm and cooperative.
A grand jury charged defendant with purposeful or knowing
murder by his own conduct, possession of a weapon (a knife) for
an unlawful purpose, terroristic threats, and other offenses, not
relevant here, which the trial court later dismissed. The
prosecutor served notice of one aggravating factor: that
defendant killed Theresa Bowman as consideration for the receipt,
or in expectation of the receipt of anything of pecuniary value.
N.J.S.A. 2C:11-3c(4)(d).
Defendant moved to dismiss the aggravating factor. The
trial court denied defendant's motion. State v. Chew,
278 N.J.
Super. 391 (Law Div. 1994). It ruled that the aggravating factor
applies to those who kill to obtain insurance proceeds, "[i]n
light of the language of the statute, the legislative history,
policy concerns, and concepts of reasonableness." Id. at 401.
The trial court reasoned that consideration means "[a]ny benefit
conferred, or agreed to be conferred, upon the promisor, by any
other person . . . as an inducement to the promisor." Id. at
396. The court explained that
the term "as consideration for" in the first
clause of subsection (d) provides a full
parallel to the two-part structure of
subsection (e) [the procuring factor] on its
own by encompassing defendants who kill for
advance payment as well as those who kill
upon the promise of later payment. The
second clause, "in expectation of the receipt
of anything of pecuniary value," can then be
read to authorize the imposition of capital
punishment for other scenarios beyond that of
murder for hire. The broad language,
"anything of pecuniary value," certainly
supports the wider interpretation to include
murders committed for the purpose of
obtaining insurance benefits.
[Id. at 397.]
The Appellate Division denied defendant's motion for leave to
appeal the denial of his motion to dismiss the aggravating
factor.
Defendant also moved to suppress his statements to the
police. Following a Miranda hearing, the court granted in part
and denied in part defendant's motion to suppress. The court
found that defendant's first custodial statement at 10:53 a.m. on
the day of the arrest had been obtained in violation of his Fifth
Amendment right to counsel and should be suppressed at trial.
But the court found that defendant voluntarily had initiated the
second custodial statement, made after 6:00 p.m., and that the
second statement was sufficiently removed from the first so as to
be admissible against defendant at trial.
On June 13, 1995, the jury returned a verdict of guilty on
the two remaining counts: purposeful or knowing murder by
defendant's own conduct, in violation of N.J.S.A. 2C:11-3a(1) or
(2), and possession of a weapon for an unlawful purpose, in
violation of N.J.S.A. 2C:39-4d.
The penalty-phase trial took place between June 19 and June
22, 1995. The State did not present any new evidence, but the
defense called eight witnesses. A member of the parole board
testified that the alternative sentence for murder was thirty
years imprisonment. A forensic social worker interviewed family
members and reviewed family records. She described a family
history of beatings, drinking binges, abuse, unfaithfulness, and
lack of love or encouragement. Defendant's mother and sister
testified similarly.
Defendant's eleven-year-old daughter Valerie spoke of her
love for her father and of her contacts with him. A family
therapist concluded that Valerie's continued contacts with her
father would have a positive effect and that the two of them
enjoyed a positive relationship. Defendant gave an allocution in
which he sought mercy for the sake of his daughter.
The jury unanimously and beyond a reasonable doubt found
defendant guilty of murder in expectation of the receipt of
anything of pecuniary value. The jury also found the existence
of the catch-all mitigating factor, N.J.S.A. 2C:11-3c(5)(h), and
credited each of ten mitigating factors raised by defendant. The
jury unanimously and beyond a reasonable doubt found that the
single aggravating factor outweighed all of the mitigating
factors found.
The jury returned a death penalty verdict and the court
sentenced defendant to death. It merged the weapons conviction
with the murder conviction. Defendant appealed directly to this
Court as of right. R. 2:2-1(a)(3). We allowed the State to file
a cross-appeal of certain evidentiary rulings. Defendant did not
file a reply brief.
Is a killing committed for the purpose of obtaining insurance proceeds a killing "as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value"?
The statutory aggravating factors in our capital-sentencing scheme narrow the class of death-eligible murderers and guide the jury's discretion in determining the appropriateness of a death sentence. State v. Ramseur, 106 N.J. 123, 185-86 (1987). New Jersey's Capital Punishment Act (the Act) contains eleven aggravating factors that make a murder eligible for sentence of death. Among them are N.J.S.A. 2C:11-3c(4)(d), the "pecuniary gain" factor, and 2C:11-3c(4)(e), the "procuring" factor.See footnote 1
Familiar examples of the two factors are found in State v.
DiFrisco,
137 N.J. 434 (1994) (DiFrisco II), cert. denied, __
U.S. __,
116 S. Ct. 949,
133 L. Ed.2d 873 (1996), the contract
killer, and State v. Marshall,
123 N.J. 1 (1991) (Marshall I),
the hiring of a killer.
Among other jurisdictions, killing for pecuniary gain is the
most frequently employed statutory aggravating factor. Raymond
J. Pascucci, Capital Punishment in 1984: Abandoning the Pursuit
of Fairness and Consistency,
69 Cornell L. Rev. 1129, 1227
(1984). When, in 1982, the New Jersey Legislature debated the
adoption of the Act, many other jurisdictions had already defined
the special circumstance or aggravating factor of murder for
financial gain as establishing death eligibility. In 1978, a
California voters' initiative amended a special circumstance that
had been limited to hired guns to create death eligibility when
"[t]he murder was intentional and carried out for financial
gain." People v. Bigelow,
691 P.2d 994, 1005 (Cal. 1984). The
Bigelow court had no legislative history to guide it in the
construction of the financial-gain special circumstance.
Concerned that the new language would create an overlap between
the financial-gain special circumstance and that of felony murder
(since most robberies, burglaries, and kidnappings are committed
for financial gain), the court reviewed decisions elsewhere. It
observed that Nebraska had construed an aggravating factor of
murder for pecuniary gain to apply:
(1) to the hired gun, (2) to the hirers of
the gun, and (3) to murder motivated
primarily by a desire for pecuniary gain as
in the case of a murder of an insured by the
beneficiary of a life insurance policy for
the purpose of obtaining the proceeds, or the
murder of a testator of a legatee or devisee
to secure a legacy or a devise.
[Id. at 1006 (citing State v. Rust,
250 N.W.2d 867, 874 (Neb.), cert. denied,
434 U.S. 912,
98 S. Ct. 313,
54 L. Ed.2d 198
(1977)).]
The California court adopted a narrowing construction to
avoid overlap with the other felony murder factors and held that
"the financial gain special circumstance applies only when the
victim's death is the consideration for, or an essential
prerequisite to the financial gain sought by the defendant."
Ibid.
Of course, an aggravating factor can be drafted to cover
only the hired gun or the one who procures the hired gun.See footnote 2 For
example, Pennsylvania's death-penalty statute recognizes the
aggravating factor of "killing for hire" only when "[the]
defendant paid or was paid by another person or had contracted to
pay or be paid by another person or had conspired to pay or be
paid by another person for the killing of the victim." 42 Pa.
Cons. Stat. Ann. § 9711(d)(2) (1996); Commonwealth v. Burgos,
610 A.2d 11 (Pa. 1992). But almost every jurisdiction that has
considered a broadly-worded pecuniary gain factor has applied the
factor to killings to collect insurance proceeds.
Arizona law contains the identical language of the New
Jersey aggravating factor. Ariz. Rev. Stat. § 13-703(F)(5)
(1996) (making death-eligible a killing "as consideration for the
receipt, or in expectation of the receipt, of something of
pecuniary value"). Arizona allows the "pecuniary gain" factor
when
hope of pecuniary gain . . . provide[s] the
impetus for the murder. For example, if a
beneficiary killed an insured in order to
gain the proceeds of a life insurance policy
this aggravating circumstance would be
satisfied. On the other hand, an unexpected
or accidental death that was not in
furtherance of the defendant's goal of
pecuniary gain, which occurs during the
course of or flight from a robbery, does not
in itself provide a sufficient basis for
finding the same aggravating circumstance.
The aggravating circumstance [where the
defendant committed the offense as
consideration for the receipt, or in the
expectation of the receipt, of anything of
pecuniary value] should be found only in
those cases where the murder is part of the
defendant's overall goal of pecuniary gain,
not merely when a death occurs during which
time the defendant benefitted financially.
[State v. Nash,
694 P.2d 222, 235 (Ariz.),
cert. denied,
471 U.S. 1143,
105 S. Ct. 2689,
86 L. Ed.2d 706 (1985).]
As early as 1980, Arizona had found that a killing for the
purpose of obtaining insurance would satisfy the aggravating
circumstance, although the court did not find sufficient evidence
in the case to satisfy the factor. State v. Madsen,
609 P.2d 1046 (Ariz.) (en banc), cert. denied,
449 U.S. 873,
101 S. Ct. 213,
66 L. Ed.2d 93 (1980).
Florida has concluded that its special circumstance of
"murder for financial gain" applies when a person kills to obtain
insurance proceeds. Zeigler v. State,
402 So.2d 365 (Fla.
1981), cert. denied,
455 U.S. 1035,
102 S. Ct. 1739,
72 L. Ed.2d 153 (1982). Delaware's death penalty statute, which was modeled
after Florida's, has been interpreted in the same way. Ferguson
v. State,
642 A.2d 772 (Del. 1994).
The principles were so well known that a Mississippi judge
would later write:
Anyone familiar with the evolution of the
"pecuniary gain" concept in capital murder
litigation around the country is aware that
this aggravating circumstance was not
designed for application to the armed robbery
capital murder. Rather, this language
contemplates the hired killing or, as it is
sometimes called, the contract murder. It
might also apply to a murder motivated by a
desire to collect life insurance proceeds.
Such an approach to [the aggravating factor]
would be consistent with correct grammatical
usage of the words employed and with the idea
that aggravating circumstances are intended
to focus the jury's attention upon aspects of
a murder thought to render it a more
reprehensible act than is murder per se.
[Wiley v. State,
484 So.2d 339, 358 (Miss.)
(Robertson, J., concurring), cert. denied,
479 U.S. 906,
107 S. Ct. 304,
93 L. Ed.2d 278 (1986), overruled on other grounds by
Willie v. State,
585 So.2d 660 (Miss.
1991).]
Defendant insists that the plain language and legislative
history of our c(4)(d) factor preclude the same interpretation
here.
The argument is based on sentence structure. Because the
factor describes "murder as consideration" for the receipt of
anything of pecuniary value, defendant reasons that the term
"consideration" applies to both clauses of the factor. From that
premise, because consideration denotes a contract, he argues that
the killer must have a contract for the expectation of money to
become death eligible. Defendant reads factor c(4)(d) to be
limited to cover an agreement to kill in consideration of (a) the
receipt or (b) the expectation of receipt of anything of
pecuniary value.
Even were we to agree that the word "consideration" is
limited to the notion of a contract, we disagree that the
sentence structure signals that the "expectation of receipt"
clause depends on the word "consideration." The two clauses are
distinct. There is no suggestion in the legislative history that
the c(4)(d) factor is the twin of the c(4)(e) procuring factor
that makes death eligible one who procures the commission of
murder by the payment or promise of payment of anything of
pecuniary value.
The Federal Death Penalty Act and the Federal Controlled
Substance Act contain aggravating factors for determining capital
punishment. See
18 U.S.C. §3592 (c)(8);
21 U.S.C. §848 (n)
(listing aggravating factors). Both federal acts contain the
identical language found in our c(4)(d) factor. In United States
v. Walker,
910 F. Supp. 837 (N.D.N.Y. 1995), a defendant sought
to bar the use of the pecuniary gain factor to cover a killing to
obtain proceeds of a drug deal.See footnote 3 The court observed that the
federal factor had two prongs: that the offense was committed
"as consideration for the receipt" or "in expectation of the
receipt" of something of pecuniary value. Id. at 848. It agreed
that the use of "as consideration for" language in the first
prong does contemplate murder for hire but that "to transport
that restriction to the second, in expectation of the receipt
prong, would render the second clause mere surplusage." Ibid.
The court also rejected the argument that by locating the
pecuniary gain factor following the procuring factor in the
federal statute, Congress had intended only "to identify the
flip-side of procuring a murder for hire." Ibid. In short, the
court concluded that nothing in the plain language of the federal
statute or its history limited the factor to the case of the
hired gun.
Although our statute does not sustain the breadth of the
factor adopted by the Walker court, we agree that the language of
the factor is not limited to the case of the hired gun. This
interpretation does not mean we are creating two separate factors
within one, inconsistently with the structure of the Act.
Rather, there is one factor, the "pecuniary gain" factor. An
Assembly version of the Act would have included the expectation
of the elimination of pecuniary loss as a potential aggravating
factor, suggesting that the legislators believed that the factor
was not limited to the case of the hired gun. Assembly
Judiciary, Law, Public Safety, and Defense Committee, Statement
to Bill No. 771, at 6 (May 20, 1982). We acknowledge that
Senator Russo, the principal sponsor, referred to the c(4)(d)
aggravating factor as the "murder for hire" factor, but we agree
with the trial court that that was only "verbal shorthand" for
the most familiar application of the factor. Chew, supra, 278
N.J. Super. at 398, n.3. See also Senate Judiciary Committee,
Capital Punishment Act: Hearings on S. 112, at 14 (Feb. 26,
1982). The New Jersey Act is a "hybrid" of the Georgia and
Florida statutes. State v. Bey,
112 N.J. 123, 217 (1988) (Bey
II) (Handler, J., dissenting), cert. denied, ___ U.S. ___,
115 S.
Ct. 1131,
130 L. Ed.2d 1093 (1995). When a statute is drafted
on the pattern of another jurisdiction, it is appropriate to
consider interpretations in that jurisdiction. Ramseur, supra,
106 N.J. at 204. The drafters of c(4)(d) were presumably aware
of interpretations that Florida gave to a similar factor, as well
as the interpretations Arizona gave to its factor.
Consistent with interpretation elsewhere, we adopt a
limiting construction of the pecuniary gain factor. Bigelow,
supra, 691 P.
2d at 1006; Rust, supra, 250 N.W.
2d at 874. We
believe that it would be double-counting to apply the c(4)(d)
factor to a killing in the course of a robbery. See Cook v.
State,
369 So.2d 1251, 1256 (Ala. 1979). In order to satisfy
New Jersey's pecuniary gain factor (outside of the hired-gun
context), it must be found that the killing is the essential
prerequisite to the receipt of the gain, not just a killing that
results in pecuniary gain.See footnote 4 A killing to obtain the proceeds of
a drug deal is not a fatal precondition as might be a killing to
obtain an inheritance or a share under a partnership agreement.
So defined, the factor provides clear guidance.
Aggravating circumstances must provide a "`meaningful basis
for distinguishing the few cases in which [death] is imposed from
the many cases in which it is not.'" Gregg v. Georgia,
428 U.S. 153, 188,
96 S. Ct. 2909, 2932,
49 L. Ed.2d 859, 883 (1976)
(opinion of Stewart, Powell, and Stevens, JJ.) (quoting Furman v.
Georgia,
408 U.S. 238, 313,
92 S. Ct. 2726, 2764,
33 L. Ed.2d 346, 392 (1972) (White, J., concurring)). In Godfrey v. Georgia,
446 U.S. 420,
100 S. Ct. 1759,
64 L. Ed.2d 398 (1980), the
Supreme Court struck down an aggravating circumstance so vaguely
worded that it failed to perform this narrowing function. See
also Ramseur, supra, 106 N.J. at 199-200 (holding c(4)(c) factor
void for vagueness unless limiting construction was given).
We find no vagueness in the factor on its face or as
applied. When a court is asked to review the application of a
statutory aggravating factor, it must determine whether the
statutory language defining the factor is too vague to provide
guidance to the sentencer. Walton v. Arizona,
497 U.S. 639,
110 S. Ct. 3047,
111 L. Ed.2d 511 (1990). If so, the reviewing
court must determine whether the sentencing court has further
defined the vague terms and if it has done so, whether those
definitions are constitutionally sufficient, that is, whether
they provide sufficient guidance to the accused and to the
sentencer.
A federal district court reviewing the Arizona factor found
that "the [pecuniary gain factor] is not facially vague. The
clear meaning of the words themselves provide the . . . guidance
required." Woratzeck v. Lewis,
863 F. Supp. 1079, 1088 (D. Ariz.
1994), aff'd sub nom. Woratzeck v. Stewart,
97 F.3d 329 (9th Cir.
1996), cert. denied, ___ U.S. ___,
117 S. Ct. 1443, ___ L. Ed.2d
___ (1997). We doubt very much that one contemplating murder
would have been misled by the grammatical structure of the
factor. Had anyone cared to mold conduct to avoid the imposition
of a death penalty, the actor could easily have learned that
other jurisdictions had already considered and rejected the
argument that the clauses of the factor were conjunctive. The
construction of the c(4)(d) factor adopted by the trial court
provided categorical narrowing and clear guidance to the
sentencer. This has been the consistent interpretation of the
factor. We are informed that the State has sought to apply the
c(4)(d) factor only when the killing was a fatal precondition to
the receipt of pecuniary gain. See State v. Marshall,
130 N.J. 109, 175-76 (1992) (Marshall II), cert. denied
507 U.S. 929,
113 S. Ct. 1306,
122 L. Ed.2d 694 (1993) (discussing cases of
murders for pecuniary gain, including insurance proceeds). The
trial court has correctly given substance to the operative terms
of the factor and we find that its construction meets
constitutional requirements.
We thus agree with the reported opinion of the trial court
that the c(4)(d) factor covers a killing to obtain insurance
proceeds.
Were defendant's statements admitted in
violation of his constitutional rights?
In the course of investigation, the police took approximately six statements from defendant. The trial court separated the statements into three time frames: statements made prior to the arrest on January 23; statements made on January 23 at about 10:53 a.m.; and statements made on January 23 at about 6:00 p.m.See footnote 5 No party contests the admissibility of the statements made prior to January 23. Admission of the two statements of January 23 is contested. The State contests the trial court's finding that the 10:53 a.m. statement was inadmissible, and defendant contests the trial court's finding that the 6:00 p.m. statement was admissible.See footnote 6
The trial court found that defendant's request for his mother to contact his attorney, made in the course of his arrest on January 23 and in the presence of the police, was, although ambiguous, an invocation of defendant's right to counsel. Under Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed.2d 378 (1981), an accused cannot be subject to further interrogation
unless counsel is present or the accused initiates further
conversation after invoking the right to counsel. "[A]ny
indication of a desire for counsel, however ambiguous, will
trigger" Edwards protection. State v. Reed,
133 N.J. 237, 253
(1993). Because the request was ambiguous, the court found that
the police should have clarified defendant's statement to protect
his right to counsel. See State v. Elmore,
205 N.J. Super. 373
(App. Div. 1985) (stating, under Edwards and Miranda, that
defendant's phone call to mother complaining that defendant was
not allowed an attorney was sufficient invocation of right to
counsel even though defendant had not requested one). Without
that clarification, the court held that the 10:53 a.m. statement
must be suppressed. The administration of Miranda warnings once
police had taken defendant to the Ocean County Prosecutor's
Office did not meet the Edwards requirement. See State v.
McCloskey,
90 N.J. 18, 27 (1982).
The court held that defendant's second statement, made after
6:00 p.m. on January 23, at the Woodbridge Police Station was
admissible. The court found that defendant had initiated the
conversation, that he had given a statement after a voluntary,
knowing, and intelligent waiver of his rights, and that the
statement was not the fruit of the improperly obtained 10:53 a.m.
statement. Therefore, the court found no constitutional
violations.
Defendant challenges the admission of the second January 23
statement. He argues that, after invoking his right to counsel,
he did not initiate further conversation and he did not knowingly
and voluntarily waive his right to counsel because he was
misinformed by the police about the nature of the charges and
subjected to severe conditions of confinement. Even if the Court
finds that defendant's rights were not violated, defendant argues
that the second statement was tainted by the earlier failure of
police and investigators to honor scrupulously his initial
invocation of the right to counsel.
New Jersey law governing the privilege against self-incrimination generally parallels federal constitutional doctrine. We paraphrase the summary of that law set forth in Reed, supra, 133 N.J. at 250-51. In New Jersey, the right against self-incrimination is founded on a common-law and statutory -- rather than a constitutional -- basis. See State v. Hartley, 103 N.J. 252, 260 (1986). See also N.J.S.A. 2A:84A-19; N.J.R.E. 502 and 503. Although lacking a constitutional provision expressly establishing the right, "[t]he privilege against self-incrimination has been an integral thread in the fabric of New Jersey common law." Hartley, supra, 103 N.J. at 286 (citing State v. Fary, 19 N.J. 431, 435 (1955)).
Like the right embodied in the Fifth Amendment to the federal Constitution, the state privilege against self-incrimination is not self-implementing. Although "the Constitution does not require any specific code of procedures for
protecting the privilege against self-incrimination during
custodial interrogation," Miranda v. Arizona,
384 U.S. 436, 490,
86 S. Ct. 1602, 1636,
16 L. Ed.2d 694, 732 (1966), the United
States Supreme Court and this Court have developed mechanisms for
safeguarding that right. Foremost among those mechanisms are the
so-called "Miranda" warnings. Id. at 479, 86 S. Ct. at 1630, 16
L. Ed.
2d at 726; Hartley, supra, 103 N.J. at 262. Miranda
warnings inform a suspect not only of the basic right against
self-incrimination, but of other ancillary rights that effectuate
that basic right. The ancillary rights collectively give
substance to the right against self-incrimination during a
custodial police interrogation, Reed, supra, 133 N.J. at 251, and
are essential to preserve that right.
New Jersey law in some circumstances affords greater
protection of the right against self-incrimination than does
federal law. For example, the Court has expanded ancillary
rights in requiring readministration of Miranda warnings as a
condition to continued interrogation after invocation of the
right to remain silent. Hartley, supra,
103 N.J. 252.
The right to counsel has also been the object of special
judicial solicitude. See Reed, supra, 133 N.J. at 251 (finding
under state privilege against self-incrimination that suspects
undergoing custodial interrogation have additional ancillary
right to be informed that counsel is attempting to reach the
suspect); State v. Sanchez,
129 N.J. 261, 277 (1992) (holding
that after indictment and before arraignment State may not
institute conversations with defendants without consent of
counsel).
Under Miranda, prior to any custodial interrogation, an
accused must be advised of the Fifth Amendment right to remain
silent and to have an attorney present during questioning. Once
an accused invokes the right to counsel, that right must be
"scrupulously honored." Michigan v. Mosley,
423 U.S. 96, 103,
96 S. Ct. 321, 326,
46 L. Ed.2d 313, 321 (1975). "Scrupulously
honor[ing]" the invocation of the right to counsel entails
terminating all questioning "until counsel has been made
available [or] unless the accused [ ] initiates further
communication, exchanges, or conversations with the police."
Edwards, supra, 451 U.S. at 484-85, 101 S. Ct. at 1885, 68 L. Ed.
2d at 386.
If an accused does initiate a conversation after invoking
his rights, that conversation may be admissible if the initiation
constitutes a knowing, intelligent, and voluntary waiver of the
accused's rights. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at
1612, 16 L. Ed.
2d at 707. The State bears a "heavy burden" of
demonstrating that the waiver was knowing, intelligent, and
voluntary. Hartley, supra, 103 N.J. at 260. See also State v.
Galloway,
133 N.J. 631, 654 (1993) (holding State must prove
voluntariness of confession beyond a reasonable doubt).
The first question is whether defendant's anticipatory request to his mother to call his attorney was sufficiently clear to trigger Edwards protection. The trial court concluded that the request was sufficiently clear and suppressed the 10:53 a.m. statement. The State advances the threshold argument that even if defendant did intend to invoke his right to counsel, defendant was not yet entitled to Edwards protection. The State argues that the Fifth Amendment right to counsel, and the procedural safeguards established under Miranda, do not attach until defendant is both in custody and about to be interrogated. Questioning must "at least be imminent" for the protection to apply.
The State relies on Alston v. Redman, 34 F.3d 1237 (3d Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1122, 130 L. Ed.2d 1085 (1995), and United States v. LaGrone, 43 F.3d 332 (7th Cir. 1994) to support its contentions.See footnote 7 Both cases rely on McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L. Ed.2d 158 (1991), which held that an accused's invocation of the Sixth
Amendment right to counsel during a judicial proceeding does not
invoke the Miranda right to counsel for any other, non-related
offense. Id. at 177-78, 111 S. Ct. at 2208-09, 115 L. Ed.
2d at
168. We find that Alston, LaGrone, and McNeil do not alter the
trial court's analysis. McNeil concerned whether an invocation
of the right to counsel after the administration of Miranda
warnings for one offense can extend to other unrelated offenses
unknown at the time the Miranda warnings were first given.
LaGrone held Miranda warnings given for one purpose cannot be
extended to another purpose. And Alston concerned the invocation
of the right to counsel via a form letter while the defendant was
in custody but not in the presence of the police, according to a
pre-established procedure designed to facilitate future police
interrogation. Those circumstances are not present here.
In State v. Wright, we held that "[i]f the individual
indicates in any manner at any time prior to or during
questioning that he wishes to remain silent, the interrogation
must cease until an attorney is present."
97 N.J. 113, 119
(1984) (rejecting State's argument that request for counsel
during polygraph examination was insufficient to invoke Miranda
rights precluding later questioning and finding that such
examination constitutes custodial interrogation) (emphasis
added).
Even assuming that the request by defendant was timely, the
State argues that the statements were ambiguous and urges the
Court to follow Davis v. United States,
512 U.S. 452, 114 S. Ct.
2350,
129 L. Ed.2d 362 (1994), which holds that when a suspect
makes a reference to counsel that is insufficiently clear to
invoke the Edwards prohibition on further questioning, an
interrogating officer need not suspend questioning to clarify the
remark.
Because 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. Reed, supra, 133 N.J. at 253;
Wright, supra, 97 N.J. at 119.See footnote 8 When a suspect makes a
statement that arguably amounts to an assertion of Miranda rights
and the interrogating agent recognizes that the statement is
susceptible to that construction, questioning should cease and
the police should inquire of the suspect about the correct
interpretation of the statement. Bey II, supra, 112 N.J. at 136;
Wright, supra, 97 N.J. at 120.
Given the narrow balance for the Davis majority's analysis,
we believe it prudent to continue to apply our precedent. We
thus agree with the trial court that defendant's request that his
mother contact his attorney was an equivocal invocation of the
right to counsel that had to be clarified before questioning
could take place. Later administration of Miranda warnings did
not serve to clarify the earlier equivocal assertion of counsel.
Wright, supra, 97 N.J. at 122 (holding inadmissible confession
given after request for counsel, despite new Miranda warnings).
The second question is whether defendant "initiated" the
conversation with the police at 6:00 p.m. and made a knowing,
intelligent, and voluntary waiver of his Miranda rights.
In Oregon v. Bradshaw, the United States Supreme Court found
that inquiries "evinc[ing] a willingness and a desire for a . . .
discussion about the investigation . . . . [or that] could
reasonably have been interpreted by the officer as relating
generally to the investigation," constitute initiation.
462 U.S. 1039, 1045-46,
103 S. Ct. 2830, 2835,
77 L. Ed 2d, 405, 412
(1983). Inquiries incidental to the custodial relationship, such
as requesting to use the bathroom or requesting a drink of water,
do not initiate further conversation concerning the
interrogation. The Bradshaw plurality found that the defendant's
statement to the police -- "Well, what is going to happen to me
now?" -- made after he was placed in a police vehicle for
transport to another location, initiated further contact. Id. at
1043-44, 103 S. Ct. at 2834, 77 L. Ed.
2d at 411.
Defendant urges that the Court accept the Bradshaw dissent,
which reasoned that a court should not presume a defendant
invited further interrogation unless the defendant engages with
the police regarding "the subject matter of the criminal
investigation." Id. at 1053, 103 S. Ct. at 2839, 77 L. Ed.
2d at
418 (Marshall J., dissenting). We have acknowledged that these
are "separate tests," but have not flatly chosen one or the
other. State v. Fuller,
118 N.J. 75, 82 (1990). We perceive
little difference between the tests and shall apply the
minority's phrasing, which we understand to ask whether the
accused "was inviting discussion of the crimes for which he was
being held." Id. at 82. It is clear to us that the facts
satisfy this test.
It is of course clear, as the trial court found, that
defendant unambiguously invoked his right to counsel at 12:50
p.m. on January 23. He was not questioned after that point. At
about 6:00 p.m., defendant asked to speak with "Geoff" (Detective
Kerwin). Defendant was crying, and asked Kerwin what he was
facing. Kerwin told him. Defendant then asked Kerwin if he
would visit defendant in jail. When defendant said that he "went
off" on Ms. Bowman, Kerwin stopped defendant, sought the
assistance of another investigator, read defendant his rights,
and took a taped statement. These facts demonstrate that
defendant was "inviting discussion of the crimes for which he was
being held," Fuller, supra, 118 N.J. at 82, and thus initiated
the conversation.
Once proper initiation has been established, the State must
demonstrate beyond a reasonable doubt that the accused made a
knowing, intelligent, and voluntary waiver beyond a reasonable
doubt. See State v. Adams,
127 N.J. 438, 447 (1992); State v.
Gerald,
113 N.J. 40, 118 (1988). The determination of a valid
waiver is based on the facts and circumstances of each case.
Adams, supra, 127 N.J. at 448. The circumstances that a court
may consider include the duration of the interrogation, the
advice as to constitutional rights, defendant's age,
intelligence, level of education, and the length and conditions
of the detention. Bey II, supra, 112 N.J. at 135.
Defendant argues that there should be fresh Miranda warnings
after initiation of contact and that a failure to re-Mirandize a
suspect before the suspect makes an inculpatory statement should
be an important factor in assessing whether a waiver was knowing
and intelligent. Defendant in effect asks us to establish a per
se rule that whenever a defendant initiates a conversation,
police should immediately re-Mirandize lest the defendant make an
incriminating statement.
The trial court found that defendant was a forty-one-year-old male with over twenty arrests in his adult life. He had
familiarity with the workings of the criminal justice system.
After requesting to speak with his attorney, defendant was
provided a phone and not questioned after tha