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BRIEF IN SUPPORT OF PETITION FOR “JACKSON-DENNO-MIRANDA” HEARING AND MOTION TO SUPPRESS STATEMENTS

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SUPPRESS

Defendant was so intoxicated that he does not remember any of his interactions with the arresting police officers. His confession(s) or statement(s) were therefore not voluntary and should be suppressed.

I. THE COURT MUST EXPLORE THE FACTUAL BASIS OF A WAIVER OF THE PRIVILEGE AGAINST SELF-INCRIMNATION

It is a well-established principle that alleged waivers of fundamental constitutional rights such as the right to counsel and the privilege against self-incrimination will be upheld only after careful inquiry into factual basis for the alleged waiver. Johnson v. Zerbst, 304 U.S. 458, 464 (1938), overruled in part on other grounds by Edwards v. Arizona, 451 U.S. 477 (1981). "Waivers of such constitutional rights must not only be voluntary, but also must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). The State bears the heavy burden of demonstrating that the accused had sufficient awareness of the consequences of the waiver, and that these vital constitutional rights were then knowingly and intelligently waived. Miranda v. Arizona, 384 U.S. 436 (1966).

The question of whether the accused waived a Constitutional right "is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case." North Carolina v. Butler, 441 U.S. 369, 373 (1979). Moreover, it is clear that courts must "indulge in every reasonable presumption against waiver." Brewer v. Williams, 430 U.S. 387, 404 (1977).

II. WHETHER A WAIVER WAS KNOWING AND INTELLIGENT RESTS ON THE TOTALITY OF CIRCUMSTANCES

The test to determine whether a knowing and intelligent waiver was made rests on an inquiry into the totality of circumstances surrounding the interrogation. Miranda, 384 U.S. at 475-77; Zerbst, 304 U.S. at 464; see also State v. Miller, 76 N.J. 392, 402 (1978). Whether a confession is voluntary is an issue independent of whether there was "formal compliance with the requirements of Miranda." State v. Chase, 55 Ohio St. 2d 237, 246 (1978). The burden is on the prosecution to show that, considering the totality of the circumstances, the confession was voluntarily given. Medina v. California, 505 U.S. 437, 463 (1992). Psychological as well as physical coercion may render a confession involuntary. Townsend v. Sain, 372 U.S. 293, 307 (1963), overruled in part on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). The relinquishment of the rights established in Miranda "must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Moran v. Burbine, 475 U.S. 412, 421 (1986). Also, "the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. at 421.

An involuntary confession is inadmissible at trial. Withrow v. Williams, 507 U.S. 680, 703 (1993). The admission into evidence of an involuntary confession deprives the defendant of the Fourteenth Amendment right to due process of law. Jackson v. Denno, 378 U.S. 368, 376 (1964). If a confession has been made involuntarily, any subsequent conviction cannot stand. Stroble v. California, 343 U.S. 181, 190 (1952).

III. IN NEW JERSEY, THE STATE MUST PROVE BEYOND A REASONABLE DOUBT THAT A WAIVER OR STATEMENT WAS VOLUNTARILY GIVEN

In New Jersey, the State bears the burden of proving beyond a reasonable doubt that the confession, or statement, was voluntary. State v. Bey (II), 112 N.J. 123 (1988), appeal after remand 129 N.J. 557 (1992); State v. Kelly, 61 N.J. 283 (1972); State v. Washington, 135 N.J. Super. 23 (App. Div. 1975), certif. denied 68 N.J. 492 (1975). But cf. Colorado v. Connelly, 479 U.S. 157 (1986) (holding State's burden of proof to establish that confession was voluntary is by 'a preponderance of the evidence.').

In New Jersey, the State also bears the additional burden of proving beyond a reasonable doubt that the formal procedures required by Miranda v. Arizona were followed. State v. Bey (II), 112 N.J. 123 (1988), appeal after remand 129 N.J. 557 (1992); State v. Yough, 49 N.J. 587 (1967); But cf. Colorado v. Connelly, 479 U.S. 157 (1986) (holding State's burden to establish that Miranda was complied with is by a 'preponderance of the evidence.').

IV. DEFENDANT'S INABILITY TO REMEMBER THE EVENTS SURROUNDING HIS CUSTODIAL INTERROGATION CASTS SIGNIFICANT DOUBT ON WHETHER DEFENDANT RESPONDED VOLUNTARILY

On the instant facts, defendant was so intoxicated he had a "blackout" during the time in question, so he does not remember anything that transpired between him and the arresting officers. A confession given when an individual is under the influence is not per se involuntary. State v. Wade, 40 N.J. 27, 35, cert. denied, 375 U.S. 846 (1963); United States v. Harden, 480 F.2d 649, 651 (8th Cir. 1973). Rather, the correct standard is whether, by reason of intoxication or some other factor, defendant's "will was overborne" or whether his statements were the "product of a rational intellect and a free will." Townsend v. Sain, 372 U.S. 293, 307 (1963).

According to that standard, but more specific to the instant facts, the Appellate Division recently demonstrated that New Jersey courts ought to consider whether the defendant can remember a waiver given while under the influence. See State v. Boston, No. A-3663-07T4, 23 (App. Div. 2010). In State v. Boston, the Appellate Division held that the waiver in that case was valid, because, among other things, "[d]efendant responded to the questions asked, and he shared with great detail his recollection of the previous day." Id. The instant facts are distinguishable from Boston because defendant was so intoxicated he cannot remember what happened during custodial interrogation at all. It is therefore highly doubtful he could understand the consequences of his waiver were the "product of a rational intellect and a free will." State v. Boston strongly suggests that where defendant was so intoxicated he cannot remember his waiver, there is sufficient doubt that a court should find the waiver was not voluntary and hence the statement(s) should be suppressed.

V. THE FACT THAT ARRESTING OFFICERS NOTED DEFENDANT'S INTOXICATION, YET CONTINUED THE INTERROGATION ANYWAY, FURTHER SUGGESTS DEFENDANT'S WILL WAS "OVERBORNE"

The arrest transcript also demonstrates that the interrogating officers were well aware of defendant's intoxication. See Exhibit A: Statement of Mauro Casiano, 11-12. Continuing to question defendant with knowledge of his intoxication may be analogized to the facts of Townsend v. Sain, supra, on which facts the U.S. Supreme Court found interrogating officers to have "overborne" defendant's will while under the influence of "truth serum."

Although the police in Townsend actively administered said "truth serum," and that did not happen here, continuing with the interrogation on the instant facts is nonetheless analogous in the sense that officers knew or should have known that defendant's level of intoxication might interfere with his ability to contend with their questioning and to resist it within the scope of his constitutional rights, such that there could be no reasonable doubt that his waiver and any statement(s) would be truly voluntary. It is well-known that alcohol reduces one's inhibitions and ability to properly contend with and respond to the actions of others. In this sense, continuing with the custodial interrogation while defendant was in a state of reduced vigilance and resistance was unfair and smacks of coercion, hence a denial of defendant's constitutional right to due process under U.S. Const. Amend XIV.

In New Jersey "[o]ur own views of due process underscore the great weight given to considerations of reasonableness, fairness, and judicial integrity that collectively define the bounds of tolerable police conduct." State v. Reed, 133 N.J. 237, 268 (1993). To allow the waiver and statement(s) to stand on these facts would only serve to tempt and to reward law enforcement, whatever their better instincts, to err on the side of obtaining waivers and statements while suspects are still too intoxicated to interact in a reasonable and fair manner. That such waivers and statements may engender reasonable doubt as to their voluntariness tends to undermine judicial integrity. Where there is no exigency, law enforcement need only wait a few hours for the effects of intoxication to dissipate. At that point, waivers and statements may be obtained in a totality of circumstances that promotes confidence in the results rather than calling them into question.

CONCLUSION

Consequently, Defendant respectfully requests that this Court conduct an evidentiary hearing in order for Defendant to demonstrate that his/her statements were obtained in violation of his/her Constitutional rights guaranteed by the Federal and New Jersey Constitution and Miranda and hence should be suppressed.

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