State v. Damu Alston, ? N.J. ?, 2011 N.J. LEXIS 15 (January 20, 2011) – Judgment admitting confession into evidence at trial affirmed. “This appeal requires this Court to consider whether the statements made by defendant immediately after he signed the waiver of his rights were an ambiguous assertion of his right to counsel and whether the detective’s questions in response constituted a permissible clarification….
Our analysis of the words that defendant chose does not lead us to the conclusion he urges this Court to reach. The initial statement that he made, ‘should I not have a lawyer?’ was, in actuality, not an assertion of a right, ambiguous or otherwise. Rather, it was a question, posed to the investigating officer, that amounted to defendant’s request for advice about what the detective thought that defendant should do. The response of the officer, which was entirely appropriate under the circumstances, was a simple request for clarification, in which he asked ‘[do y]ou want a lawyer?’ If there were any doubt about the fact that defendant was seeking advice, his next words were clear, because in answer to the question about whether he actually wanted a lawyer, he said ‘No, I am asking you guys, man.’ Nothing in that response amounted to even an ambiguous request for counsel…. As the exchange between the detective and defendant continued, defendant asked the hypothetical question about the mechanics of getting a lawyer ‘in here with me,’ to which the officer gave the response that was dispositive for the motion court. Without repeating the words used by defendant and the detective in their entirety, the context of the exchange, which immediately followed defendant’s emphatic response that he was not asking for counsel, makes it clear that defendant’s question was simply that, another question, rather than an ambiguous assertion of his right. The detective’s immediate response, ‘that’s on you’ is no different from the statement ‘that’s your call, … , and nothing in those words is inaccurate. In context, those words are no more than a reminder that the choice is defendant’s, and not the detective’s, to make; they are no different than had the detective responded by using the familiar phrase ‘that’s up to you.’… Although in responding to defendant’s query about the mechanics of securing counsel, re-reading the portion of the Miranda warnings about the appointment of counsel might have been the more prudent course, on balance, we conclude that the detective’s response was a fair recitation of the right to counsel and the right to have the interrogation cease. More to the point, because the detective was not obligated to give defendant advice about whether he should assert any of his rights, we cannot fault his choice of words as he sought to clarify defendant’s requests while avoiding giving him the advice he was seeking.”