State v. Boretsky

Citation186 N.J. 271,894 A.2d 659
PartiesSTATE of New Jersey, Plaintiff-Appellant, v. Boris BORETSKY, Defendant-Respondent.
Decision Date05 April 2006
CourtUnited States State Supreme Court (New Jersey)

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for appellant (Bruce J. Kaplan, Middlesex County Prosecutor, attorney).

Joseph J. Benedict, New Brunswick, argued the cause for respondent (Benedict and Altman, attorneys; Mr. Benedict and Philip Nettl, on the briefs).

Justice LaVECCHIA delivered the opinion of the Court.

Defendant Boris Boretsky was charged with capital murder in the death of his estranged wife, Saoule Moukhametova. During jury selection prior to defendant's trial, we granted leave to appeal to review a pre-trial order suppressing some of defendant's statements made to police officers responding to defendant's 9-1-1 telephone call for assistance. State v. Boretsky, 185 N.J. 250, 883 A.2d 1052 (2005). Defendant's statements were made to the officers immediately before, and also after, his arrest at the victim's home. After hearing oral argument, we issued an order reversing the order of suppression in light of the imminent start of trial. This opinion supplements our order.

I.

Shortly before midnight on March 3, 2002, Officer John Penney of the South Brunswick Township Police Department was dispatched to Moukhametova's residence. He was responding to a 9-1-1 telephone call in which the caller reported that Moukhametova had attempted suicide. The 9-1-1 call was placed from Moukhametova's home by defendant, her estranged husband. The couple was known to the South Brunswick police. Approximately six weeks earlier, South Brunswick officers had responded to a domestic violence incident at the home. As a result of that incident, Moukhametova obtained a temporary restraining order (TRO), and later a final restraining order (FRO), against defendant before the events of March 3. The 9-1-1 dispatcher informed Officer Penney about the FRO when sending him on the assignment.

Upon arriving at Moukhametova's home, Penney observed defendant pacing by the living room window talking on a portable phone. Before seeking entry, Penney confirmed that the 9-1-1 dispatcher was not on the line with defendant. After Penney knocked on the door, defendant answered with the telephone in hand. Defendant attempted to hand the instrument to Penney, saying "can you speak to my attorney?" Penney responded that he was there for a first-aid call and asked where defendant's wife was. Defendant allowed Penney into the house and directed him to the living room where Penney observed Moukhametova's motionless body lying on a couch. It was obvious that she had a chest injury. On a coffee table nearby lay a kitchen knife with blood on it. Penney called for first aid assistance and then asked defendant when he had heard last from his wife. Defendant's response—that he had seen her or talked to her around 4:00 p.m.—is the first statement that the motion court suppressed. Defendant again tried to hand the portable telephone to Penney, repeating "can you please talk to my attorney?" Penney did not take the phone. Instead he attended to Moukhametova and told defendant to stop moving around.

Defendant was standing and watching Penney when Officer Reeves and then Officer LaPoint entered the living room. At Reeves' direction, defendant sat down on the living room floor. As the officers continued to attend to Moukhametova, defendant persisted in holding and waving the telephone, saying "talk to my lawyer" or "my lawyer is on the phone." The officers ignored defendant's disruptions until, at some point, they took the phone and threw it onto a sofa beyond defendant's reach; the bloodied knife, however, remained unsecured on the table nearby. Officer LaPoint drew his gun, pointed it at defendant, and ordered him to lie face down on the floor. Defendant was placed under arrest for violating the FRO and was administered Miranda warnings.1 While defendant was being led outside to a waiting patrol car, he asked how his wife was doing. The officer responded that he did not know. The officer then asked defendant "how long did you wait to call the police?" Defendant's response—that he waited forty-five minutes to call 9-1-1 after his wife was stabbed—is the second statement suppressed by the motion court.

Additional officers arrived at Moukhametova's home that evening. One officer approached defendant as he was being placed into the patrol car and observed apparent blood stains on defendant's clothing. The officer directed that defendant's clothes be secured in bags. Hearing that, defendant blurted out "I tried to help." A short time later, while defendant was in the back of the patrol car, he asked one of the officers whether his wife was "okay." The officer did not respond.

While being processed at police headquarters, defendant repeatedly asked about his wife's condition. The processing officer responded that he did not know. Defendant began to complain of chest pains and, while he clutched his chest, blurted out "I'm sorry." Defendant was taken by ambulance to a hospital where he was treated for his complaints. After defendant received medical attention, several detectives decided to question him. Defendant was advised again of his Miranda rights and acknowledged his understanding of those rights. He agreed to questioning, during which he again repeatedly asked about his wife's condition. Defendant's statement made in response to police questioning at the hospital the morning of March 4, 2006 was suppressed later by the motion court.

In May of 2002, defendant was indicted and charged with the murder of Moukhametova, in violation of N.J.S.A. 2C:11-3(a)(1), (2). He also was charged with aggravated assault, N.J.S.A. 2C:12-1(b); terroristic threats, N.J.S.A. 2C:12-3(a); contempt, N.J.S.A. 2C:29-9(b); burglary, N.J.S.A. 2C:18-2; possession of a weapon with the purpose to use it unlawfully, N.J.S.A. 2C:39-4(d); and tampering with evidence, N.J.S.A. 2C:28-6(1).

Defendant moved to suppress all statements that he made to the police on March 3 and 4, 2002. The motion court found that defendant invoked his right to counsel by repeatedly asking the responding officers to speak to his attorney on the telephone. The court also found that defendant was effectively in custody during that period. Accordingly, the court suppressed the statements defendant made in response to police questioning, but not those that he made spontaneously. As a result, defendant's repeated questions about how his wife was doing were not suppressed. Nor did the court suppress defendant's statement "I'm sorry," made at the police station, or his statement "I tried to help," made outside the house as he was being placed into the patrol car.

The State sought and was granted leave to appeal to the Appellate Division. The Appellate Division affirmed the trial court in an unpublished per curiam opinion. As noted, we granted the State's motion for leave to appeal, State v. Boretsky, supra, 185 N.J. 250, 883 A.2d 1052, and thereafter issued an order on October 20, 2005, reversing the order of suppression.2

II.

Defendant has argued throughout this matter that his repeated requests to the officers to "talk to my lawyer," while holding a telephone or waving it in their direction, were sufficient to invoke his right to counsel and thereby to protect his right against self-incrimination. He claims that his invocation was unambiguous or, at the very least, sufficient to trigger a police duty to clarify his request before commencing interrogation, citing State v. Chew, 150 N.J. 30, 63, 695 A.2d 1301 (1997) (stating that "equivocal" requests for counsel must "be interpreted in a light most favorable to the defendant."). Accordingly, in defendant's view, it was a violation of his rights for the officers to have asked him when he last spoke to or heard from his wife and, moreover, the subsequent administration of Miranda warnings could not cure the violation. For that reason, defendant contends that his answer to the question asked of him after he inquired about his wife's condition must be suppressed as well as his statement given at the hospital on March 4, 2002.

The State contends that Miranda warnings are designed to protect the right against self-incrimination of a suspect facing a custodial interrogation. Here the police officers were responding in an emergency aid capacity. Their initial interaction with defendant was incidental to their efforts to aid a victim in an emergency Thus, according to the State, defendant's claim that he asserted his right to counsel has no relevance here. Defendant was not facing custodial interrogation and was not entitled to Miranda's protections during the initial police response to the 9-1-1 emergency call. When defendant was placed under arrest, he received his Miranda warnings and he elected to initiate conversation with the officers present and to respond to later questioning.

Our resolution of those conflicting claims requires that we turn first to the purposes behind the right against self-incrimination.

III.

The right against self-incrimination has an extensive common law history. See R. Carter Pitman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va. L. Rev. 763 (1963) (providing historical discussion of common law privilege). Both English and early American case law discussing the roots of the privilege emphasize the untrustworthiness of confessions obtained by means of custodial coercion and suggest that the desire to end such practices was its primary justification.3 The United States Supreme Court has specifically identified that goal as critical in the development of the modern Fifth Amendment right against self-incrimination. See Murphy v. Waterfront Comm'n, 378 U.S. 52, 55-57, 84 S.Ct. 1594, 1596-98, 12 L.Ed.2d 678, 681-83 (1964).

Indeed, the desire to protect the right against...

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7 cases
  • Boretsky v. Ricci
    • United States
    • U.S. District Court — District of New Jersey
    • February 29, 2012
    ...responded to his 9-1-1 telephone call "in which [he] reported thatMoukhametova[, Boretsky's wife,] had attempted suicide." State v. Boretsky, 186 N.J. 271, 273 (2006). The New Jersey Supreme Court recounted the facts as follows:Shortly before midnight on March 3, 2002, Officer John Penney o......
  • Monson v. City of Detroit
    • United States
    • U.S. District Court — Eastern District of Michigan
    • March 6, 2019
    ...when he asked his mother to call his attorney as police were taking him from his home) overruled on other grounds State v. Boretsky, 894 A.2d 659, 667 (N.J. 2006); Cf. United States v. DeLaurentiis, 629 F. Supp. 2d 68, 72-76 (D. Me. 2009) (finding defendant's initial request to call her mot......
  • Jones v. Chetirkin
    • United States
    • U.S. District Court — District of New Jersey
    • August 13, 2018
    ...82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006).Here, identification of defendant was not dependent entirely on the undercover detective's testimony. The identification was co......
  • Giordano v. Warren
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    • U.S. District Court — District of New Jersey
    • April 5, 2013
    ...should not be deemed as initiating further interrogation), certif. denied 528 U.S. 1052 (1999), abrogated on other grounds State v. Boretsky, 186 N.J. 271 (2006) (rejecting the claim that a defendant's equivocal statement about "counsel," made during an emergency aid situation and before Mi......
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