rulings of Bey (II), Harvey (I) and Martini (I) and held that
defendant did not invoke his right to silence when he told
police officers that he would submit to an interview after he
telephoned his mother.
Other examples abound of equivocal invocations of
the right to silence or counsel which gave rise to an
affirmative duty on the part of officers to clarify the
ambiguous comments made by the accused. See State v.
Chew (I) (defendant asked his mother to call his attorney
when arrested); State v. Johnson, 120 N.J. 263 (1990)
(defendant stated to police “I just can’t talk about it” ); State
v. Hartley, 103 N.J. 252 (1986) (defendant stated “I don’t
believe I want to make a statement at this time”); State v.
Wright (defendant stated “I won’t sign any more [waivers]
without a lawyer present” prior to taking a polygraph
examination); State v. Jackson, 272 N.J. Super. 543 (App.
Div. 1994) (defendant stated during interview that “he
wasn’t going to tell anything that happened because of
personal reasons”), certif. denied, 142 N.J. 450 (1995); see
also State v. Elmore, 205 N.J. Super. 373 (App. Div. 1985);
State v. Dickens, 192 N.J. Super. 290 (App. Div. 1983),
certif. denied, 97 N.J. 694 (1984); State v. Fussell, 174 N.J.
Super. 14 (App. Div. 1980); but see State v. Dixon, 125 N.J.
223 (1991) (rejecting capital defendant’s claim that his
change in demeanor during an interview necessitated
clarification by officers); State v. Cardona, 268 N.J. Super.
38 (App. Div. 1993), certif. denied, 135 N.J. 30O (1994).
Departing from out-of-state authority, our Supreme
Court in State v. Chew (I), rejected the assertion that the
rendition of Miranda warnings was sufficient to clarify an
ambiguous request for counsel made by the defendant
during his arrest and well before the custodial
interrogation. It further rebuffed the argument that
defendant was incapable of anticipatorily invoking his
rights prior to the interview.
Finally, a suspect may, if he or she elects, limit the
scope of the invocation. Thus, where a suspect declines to
make a written statement but is clearly willing to make an
oral statement, he is foreclosed from subsequently asserting
that the right to silence was invoked for all forms of
communication. Connecticut v. Barrett, 479 U.S. 523
(1987); State v. Adams, 127 N.J. 438 (1992); State v.
Gerald, 113 N.J. 40 (1988) (holding that investigators were
not prohibited from securing an oral statement where the
defendant agreed to be interviewed but refused to have the
interview tape recorded); State v. Freeman, 223 N.J. Super.
92 (App. Div. 1988), certif. denied, 114 N.J. 525 (1989).
H. Multiple ConfessionsThe circumstances of the initial custodial interroga-
tion will often be relevant in ascertaining the constitutional
validity of any subsequently obtained statement derived
from an ensuing custodial interrogation. If, for example,
the suspect waives all of his or her Miranda rights during
the initial interview and does not thereafter invoke them,
the warnings need not be readministered at the
commencement of the second interview. State v. Melvin,
65 N.J. 1 (1974); State v. Magee, 52 N.J. 352 (1968), cert.
denied, 393 U.S. 1097 (1969); State v. Helewa, 223 N.J.
Super. 40 (App. Div. 1988).Of course, different strictures obtain when a suspect
has invoked his rights during the preceding interview.
When a suspect has invoked his or her right to silence or
counsel it is absolutely imperative that all questioning
promptly cease to ensure that his rights are scrupulously
honored. However, where the right to silence has been
invoked -- as opposed to a request for an attorney -- the
police are entitled to reinitiate questioning conditioned
upon strict adherence to the “bright-line” rule announced
in State v. Hartley, 103 N.J. 252 (1986), mandating the
rendition of fresh Miranda warnings prior to renewed
questioning. See also Michigan v. Mosely, 423 U.S. 96
(1975); State v. Harvey (I), 121 N.J. 407 (1990), cert.
denied. 499 U.S. 931 (1991); State v. Mallon, 288 N.J.
Super. 139 (App. Div.), certif. denied, 146 N.J. 497 (1996).
If, on the other hand, a suspect invokes the right to counsel,
under Edwards and its state and federal progeny there can
be absolutely no resumption of questioning unless either
the suspect initiates communications with the police or
counsel is present. Edwards v. Arizona, 451 U.S. 477
(1981); State v. Chew (I), 150 N.J. 30 (1997), cert. denied,
528 U.S. 1052 (1999).The parameters of initiation were fully addressed by
the Supreme Court of New Jersey recently in State v. Chew
(I). There, a capital defendant was questioned following
his arrest in contravention of the Edwards rule. At the
conclusion of the interview, he was subsequently
transported that day from Ocean County to Middlesex
County where he was processed and charged with the
murder of his girlfriend. That same evening, defendant
requested to speak with an investigator. When the
investigator entered the room, defendant asked “[w]hat am
I facing.” After the investigator outlined the possible
punishments for murder and lesser included offenses,
defendant, without solicitation, began to talk about his
involvement in the murder. The investigator stopped
defendant, readministered Miranda warnings and ob-