refused to follow Moran v. Burbine, 475 U.S. 412 (1986),
which held that the failure to inform an in-custody suspect
that an attorney had been retained for him did not deprive
the suspect of the “knowledge essential to his ability to
understand the nature of his rights and the consequences of
abandoning them.” Basing its contrary holding on state
constitutional grounds, the Supreme Court of New Jersey
stated in Reed that where, to the knowledge of officers, an
attorney has been retained on behalf of a person in custody
and is present or readily available, that information must be
imparted to the suspect in order to establish a knowing
waiver of Miranda rights. The Supreme Court of New
Jersey subsequently determined that its holding in Reed
would not be applied retroactively. State v. Abronski, 145
N.J. 265 (1996).
A knowing and intelligent waiver presupposes that the
suspect comprehends the nature of the rights being
relinquished. Thus, a suspect who lacks the mental acuity
to comprehend the rudimentary protections afforded by
Miranda is logically incapable of waiving his or her rights.
See State v. Flowers, 224 N.J. Super. 208 (Law Div. 1987),
aff’d, 224 N.J. Super. 90 (App. Div. 1988); but see State v.
Carpenter, 268 N.J. Super. 378 (App. Div. 1993) (holding
that although the defendant possessed an I.Q. of 71, the
waiver was valid under the totality of circumstances), certif.
denied, 135 N.J. 467 (1994). As noted previously,
however, a waiver cannot be invalidated simply because the
defendant failed to appreciate the full range of
consequences arising from his election to waive his rights,
or was not aware of the possible topics of the interrogation.
Colorado v. Spring, 475 U.S. 412 (1986); Oregon v. Elstad,
470 U.S. 298 (1985); State v. Adams, 127 N.J. 438 (1992).
G. Invocations And Their Consequences
The Miranda decision states that once warnings are
administered, if the suspect indicates in any manner, at any
time prior to or during questioning, that he or she wishes to
remain silent, the interrogation must immediately stop.
See also Michigan v. Mosely, 423 U.S. 101 (1975); State v.
Bey (I), 112 N.J. 45 (1988).
So too with invocations of the right to counsel. In
Edwards v. Arizona, 451 U.S. 477 (1981), the United
States Supreme Court held that when a suspect invokes his
right under Miranda to consult with an attorney prior to
interrogation, the suspect is not subject to further
interrogation by authorities under any circumstance until
counsel has been made available. The only exception to the
aforementioned and strictly enforced “bright-line” rule is if
the accused initiates further communications with the
police.
The United States Supreme Court subsequently held
that the Edwards rule also prohibits police-initiated
interrogation, even regarding offenses unrelated to the
subject of the original interrogation. Stated differently, the
Edwards rule is not offense-specific. Arizona v. Roberson,
486 U.S. 675 (1988). Furthermore, the Edwards rule has
been strictly construed to mandate the attorney’s presence
at all subsequent questioning once counsel has been
requested. Thus, questioning outside of an attorney’s
presence following defendant’s consultation with that
attorney will be deemed a violation of Edwards. Minnick v.
Mississippi, 498 U.S. 146 (1990). Lastly, an accused’s post-
request response to further interrogation may not be used
to cast doubt upon the clarity of his or her initial request for
counsel. Smith v. Illinois, 469 U.S. 91 (1984).Ambiguous invocations have been the subject of much
case law in this State, not all of it consistent. Initially, it is
firmly settled that when a suspect makes a statement that
arguably amounts to an assertion of Miranda rights, all
questioning must immediately cease. The interrogating
officer must then inquire of the suspect about the correct
interpretation of the statement before questioning may
continue. Absent such a clarification, it must be presumed
that the defendant invoked his rights. State v. Chew (I), 150
N.J. 30 (1997), cert. denied, 528 U.S. 1052 (1999); State v.
Wright, 97 N.J. 113 (1984). In this context it cannot be too
strongly emphasized that New Jersey has expressly declined
to follow the holding in Davis v. United States, 512 U.S.
452 (1994), which limited the application of the Edwards
“bright-line” rule to unambiguous assertions of the right to
have counsel present during a custodial interrogation. See
State v. Chew (I).Note that defendant’s request for permission to lay
down and to think about what happened during an
interrogation was analogized to a request for something to
eat or drink, and was not, therefore, found to constitute an
equivocal invocation of his right to silence. State v. Bey (II),
112 N.J. 123 (1988). Yet in State v. Harvey (I), 121 N.J.
407 (1990), cert. denied, 499 U.S. 931 (1991), the Supreme
Court of New Jersey concluded that defendant’s statement
to investigators that he would talk to them about the
murder after first speaking with his father, was found to be
an ambiguous manifestation of desire to terminate the
interview. Three years later, defendant’s agreement to
speak with investigators after first conferring with his
confederate was not perceived by the Supreme Court as an
invocation of the right to silence. State v. Martini (I), 131
N.J. 176 (1993), cert. denied, 516 U.S. 875 (1995). In
State v. Brooks, 309 N.J. Super. 43 (App. Div.), certif.
denied, 156 N.J. 386 (1998), the Appellate Division
recently endeavored to harmonize the evidently divergent