State v. Gonzalez

Citation249 N.J. 612,268 A.3d 329
Decision Date08 February 2022
Docket Number085132,A-47 September Term 2020
Parties STATE of New Jersey, Plaintiff-Respondent, v. Laura GONZALEZ, Defendant-Appellant.
CourtUnited States State Supreme Court (New Jersey)

249 N.J. 612
268 A.3d 329

STATE of New Jersey, Plaintiff-Respondent,
v.
Laura GONZALEZ, Defendant-Appellant.

A-47 September Term 2020
085132

Supreme Court of New Jersey.

Argued October 26, 2021
Decided February 8, 2022


Margaret McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Margaret McLane, of counsel and on the briefs, and Richard Sparaco, Designated Counsel, on the briefs).

Steven K. Cuttonaro, Deputy Attorney General, argued the cause for respondent (Andrew J. Bruck, Acting Attorney General, attorney; Steven K. Cuttonaro, of counsel and on the briefs, and Paul H. Heinzel, Assistant Somerset County Prosecutor, on the briefs).

Joseph Hayden, Hackensack, argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the brief).

Lauren Gottesman, of the New York bar, admitted pro hac vice, argued the cause for amicus curiae The Innocence Project (Dechert, attorneys; Lauren Gottesman, of counsel and on the brief, J. Ian Downes, Rose Marie Wong, of the Pennsylvania bar, admitted pro hac vice, Arif H. Ali, of the New York and District of Columbia bars, admitted pro hac vice, and Lindsay N. Zanello, of the New York bar, admitted pro hac vice, on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

249 N.J. 619

In 2017, police questioned defendant Laura Gonzalez -- after providing her with

268 A.3d 333

her Miranda warnings1 -- in connection with the discovery that the infant for whom she served as a nanny, Tommy2 , had two fractures in his right leg and one in his left. In the middle of the interview, defendant asked, "But now what do I do about an attorney and everything?" Rather than seek clarification, the interviewing detective merely advised defendant, "That is

249 N.J. 620

your decision. I can't give you an opinion about anything." Ultimately, defendant admitted to abusing Tommy and, at the interviewing detective's suggestion, wrote his parents an apology note.

Defendant was charged with endangerment and aggravated assault. She moved to suppress portions of her statement and the note, arguing that she invoked her right to counsel during her interview. The trial court denied defendant's motion, reasoning that defendant's statement did not rise to the level of being an assertion of her right to counsel -- not even an ambiguous assertion of that right, which triggers a duty for the interviewing officer to seek clarification under New Jersey law. State v. Reed, 133 N.J. 237, 253, 627 A.2d 630 (1993). The jury found defendant guilty of second-degree endangering the welfare of a child and simple assault.

Defendant appealed, challenging the denial of her suppression motion, as well as certain evidentiary determinations and jury instructions by the trial court. The Appellate Division affirmed defendant's conviction.

We now reverse the judgment of the Appellate Division and remand the matter for further proceedings. We conclude that defendant's question about the attorney was an ambiguous invocation of her right to counsel and that, under settled New Jersey law, see, e.g., ibid., the detective was required to cease questioning and clarify whether defendant was requesting counsel during the interview. And, because the State played defendant's recorded statement at trial and read the apology note -- written at the detective's suggestion -- to the jury, we find the error to be harmful. We also find plain error in the trial court's admission of certain challenged evidence, and we provide guidance for the proceedings on remand.

I.

In January 2017, Seth and Lisa Borsuk hired defendant as an in-home nanny to help care for their son. At that time, Lisa was pregnant with the couple's second child, Tommy, who was born a

249 N.J. 621

month later. Lisa returned to work in the spring of 2017, and defendant was then home alone with the two children while the parents were at work.

In October 2017, the couple noticed Tommy favoring his right leg. Approximately one month later, while Lisa was away on business, Seth told her Tommy was crying more than usual and did not seem himself. Defendant also expressed concerns over Tommy's behavior. When Lisa returned from her trip, the Borsuks took Tommy to his pediatrician and an orthopedist. Neither doctor detected any issues with Tommy.

On Thanksgiving morning, Tommy cried hysterically whenever Lisa tried to pick him up or touch his leg. Later that day, the Borsuks traveled to Long Island to visit family, and, while there, took Tommy to a pediatrics office, where he was seen by Dr. Aliah Khan. An x-ray revealed a fracture of Tommy's right femur, which Dr. Khan treated with a splint. After the Borsuks returned to their family's home in

268 A.3d 334

Long Island, Dr. Khan called and advised them that Tommy's left tibia revealed a "corner fracture," and that he had notified the New York Department of Child Protection Services. Dr. Khan insisted that the Borsuks take Tommy to the hospital.

The couple took Tommy to Morristown Memorial Hospital where further testing revealed a third, healing fracture of Tommy's right tibia. The New Jersey Department of Child Protection and Permanency (DCPP) was notified; DCPP, in turn, notified the Somerset County Prosecutor's Office. Detective Iris Reyes of the Somerset County Prosecutor's Office met the Borsuks at the hospital and interviewed them about Tommy's injuries. Detective Reyes interviewed defendant at the Somerset County Prosecutor's Office a few days later.3

Detective Reyes advised defendant of her Miranda rights in English before switching to Spanish. Defendant also received and

249 N.J. 622

signed a Miranda form written in Spanish. Defendant agreed to provide a videotaped statement after waiving her Miranda rights.

Defendant initially denied any responsibility for Tommy's injuries. As the interview continued, however, Detective Reyes told defendant that video surveillance cameras in the home captured footage of her interactions with Tommy; in truth, no cameras existed in the home. During the interview, before defendant made any incriminating statements, the following colloquy occurred:

Detective Reyes: I don't know what could happen. And I'm not going to lie to you[,] but yes[,] I can say that if you lie --

Defendant: Uh-humm.

Detective Reyes: The situation is going to get worse.

Defendant: But now what do I do about an attorney and everything?

Detective Reyes: That is your decision. I can't give you an opinion about anything.

Defendant: Yes, but --

Detective Reyes: The only thing I can say to you is, that telling the truth --

Defendant: Uh-humm.

Detective Reyes: You will have a better option by telling the truth.

Defendant: Ok.

Detective Reyes: Than lying.

Defendant: No, there is nothing else, [Detective].

After, Detective Reyes suggested defendant was supplying information "little piece by little piece," and the following colloquy ensued:

Defendant: You're going to help me with an attorney.

Detective Reyes: I'm going to help you with an attorney? Or no --

Defendant: Yes, (inaudible).

Detective Reyes: Oh no, that is your decision what you want to do.

....

Defendant: I don't know I need you to guide me, I am honest, I don't know.

Detective Reyes: I can't guide you, all that [I] want is to know what happened to the boy. And I can see that you are not helping.

Defendant acknowledged that she was "full of anger" and admitted to shaking Tommy aggressively, swinging him to get him to stop crying, hitting him in the head, suffocating him with her hands, and pulling his legs out from under the highchair whenever he did not sit properly. Defendant

268 A.3d 335

also admitted to throwing

249 N.J. 623

Tommy onto his play mat and throwing water over his face. Near the end of the interview, Detective Reyes asked defendant if she wanted to write the Borsuk family a note. Defendant agreed and wrote the following:

Lisa, I'm so sorry about what happened. I never been happy in your home. I stayed because I have a family to feed and to -- me, too. I never thought to been in the monster -- monster that I transformed. My life will never be the same and yours, either. I hope God forgive me and all that I did. It's no apology that can change that but I hope that you can understanding I never feel like family.

The interview concluded shortly thereafter.

Later, a Somerset County indictment charged defendant with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).

Before trial, defendant moved to suppress portions of her statement to Detective Reyes and the note to the Borsuks, arguing that both were made after she invoked her right to counsel. Following a Miranda hearing, the court denied defendant's...

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    ...in the record,’ because a trial court's decision is influenced by the opportunity to hear and see the witnesses." State v. Gonzalez, 249 N.J. 612, 628, 268 A.3d 329 (2022) (quoting State v. Hubbard, 222 N.J. 249, 262, 118 A.3d 314 (2015) ). "When, as here, we consider a ruling that applies ......
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    ...if a suspect "states that he wants an attorney, the interrogation must cease until an attorney is present," State v. Gonzalez, 249 N.J. 612, 628, 268 A.3d 329 (2022) (quoting Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ), even if the request for counsel is "a......
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