STATE OF NEW JERSEY VS. LIONEL D. BROWNÂ (09-08-0689, ATLANTIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0629-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LIONEL D. BROWN, a/k/a DAVID
STYLES, a/k/a LIONEL BROWN, JR.,
a/k/a LYNEL BROWN, a/k/a KEVIN L.
COOPER,
Defendant-Appellant.
___________________________________
Submitted January 18, 2017 – Decided October 10, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Indictment No. 09-08-0689.
Joseph E. Krakora, Public Defender, attorney
for appellant (Charles P. Savoth, III,
Designated Counsel, on the brief).
Diane M. Ruberton, Acting Atlantic County
Prosecutor, attorney for respondent (Mario C.
Formica, Special Deputy Attorney General/
Acting Chief Assistant Prosecutor, of counsel
and on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
Charged with murder and weapons offenses, Lionel Brown
pleaded guilty to aggravated manslaughter of an alleged gang
member. In accord with his plea agreement, he received a twenty-
year sentence, subject to the No Early Release Act, N.J.S.A. 2C:43-
7.2, which we affirmed in an excessive sentencing appeal. Brown
later sought post-conviction relief, contending his attorney was
ineffective in various ways. Of interest to us on appeal is his
claim his attorney failed to move to suppress two custodial
statements based on Brown's assertion of his right to remain
silent.
The PCR court denied the petition without an evidentiary
hearing. Lacking the benefit of the recordings or a transcript,
and presented only with vague claims of ineffective assistance,
the trial court's decision is unassailable. However, appellate
counsel has presented us with the recordings, and we ordered
preparation of a transcript. On the basis of that expanded record,
we are constrained to reverse and remand for an evidentiary
hearing.
The record reflects that police questioned Brown for about
eleven hours on one day, and resumed questioning two days later.
About six hours into the first interview, Brown had made no
incriminating statements. The focus shifted to his family.
Detectives asserted the family would be safe from gang retaliation
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if Brown confessed. Brown was visibly upset and despondent. He
stated he was not going to see his family as a result of his
arrest. In this context, Brown said he was done talking and wanted
to be taken to the jail. "I want to go to the County [jail] now,
man," he said. The police persisted in questioning him and
speaking about his family. Brown said, "I don't even wanna talk
about this shit no more, man. It's over. It's over." Police
continued, and Brown said, "Might as well just take me to the
County and get this shit over with." The police still continued
questioning. Defendant indicated that he would say nothing further
until he spoke with his family. Questioning ceased but, in making
arrangements to get his family to the police station, the detective
persisted "you want all four of your sisters cause you want to be
able to look them in the eye and straighten things out?"
Eventually, after Brown conferred with family members, he stated
that, while under the influence of PCP, he grabbed the victim's
gun in the midst of an altercation, shot him as he tried to run,
and then discarded the weapon.
In the second session two days later, police followed up on
Brown's admissions, and elicited additional details related to the
shooting, including where he discarded his jacket and stashed the
weapon before discarding it. At his plea hearing, Brown stated
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that he shot twice at the victim as he walked away, but did not
intend to kill him.
In his pro se petition, Brown contended that his trial
attorney was ineffective because he did not move to suppress his
custodial statements, and had he done so, Brown would have
proceeded to trial.1 However, Brown's PCR counsel did not present
the PCR court with the recordings or transcripts of the
interrogation, nor did he present the court with other evidence
showing Brown's requests to stop. Lacking such evidence, the
court was unpersuaded Brown adequately showed a violation of his
right to remain silent.
As did the trial court, see State v. Harris, 181 N.J. 391,
421 (2004) (stating appellate court conducts de novo review where
PCR court does not hold an evidentiary hearing), cert. denied, 545
U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005), we apply the
two-pronged Strickland test and determine whether the record — now
expanded — reveals that Brown's plea counsel was ineffective, and
that Brown suffered resulting prejudice. See Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
1
He also faulted his attorney for not filing other pre-trial
motions, and investigating grounds for a passion-provocation
defense. Those claims are not before us, although Brown also
contended that but for those attorney failures, he would have gone
to trial.
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State v. Fritz, 105 N.J. 42, 58 (1987). Where the claimed
ineffectiveness involves an unfiled motion, the petitioner must
demonstrate the motion would have succeeded. See State v. O'Neal,
190 N.J. 601, 619 (2007). Prejudice in a guilty plea case consists
of showing "a reasonable probability that, but for counsel's
errors, [the defendant] would not have pleaded guilty and would
have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52,
59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). Also, "a
petitioner must convince the court that a decision to reject a
plea bargain would have been rational under the circumstances."
Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176
L. Ed. 2d 284, 297 (2010).
We conclude Brown has established a prima facie case of
ineffective assistance of counsel warranting an evidentiary
hearing. Brown's appellate PCR counsel asserts that Brown's
assigned PCR counsel before the trial court did not possess the
recordings of defendant's interrogation in his file. Notably, he
referred only to police reports of the interrogation. This
certainly raises a question whether plea counsel similarly failed
to obtain or review the recordings. A motion to suppress
defendant's custodial statements would likely have succeeded,
because police did not honor Brown's repeated requests to terminate
the questioning.
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"Once warnings have been given, the subsequent procedure is
clear. If the individual indicates in any manner, at any time
prior to or during questioning, that he [or she] wishes to remain
silent, the interrogation must cease." Miranda v. Arizona, 384
U.S. 436, 473-74, 86 S. Ct. 1602, 1627, 16 L. Ed. 2d 694, 723
(1966). After it is invoked, the defendant's right to remain
silent must be "scrupulously honored." State v. Johnson, 120 N.J.
263, 282 (1990) (internal quotation marks and citation omitted).
"[A]ny statement taken after the [defendant] invokes his [or her]
privilege cannot be other than the product of compulsion, subtle
or otherwise." Miranda, supra, 384 U.S. at 474, 86 S. Ct. at
1628, 16 L. Ed. 2d at 723.
"[A] request to terminate an interrogation must be honored
however ambiguous." State v. Bey, 112 N.J. 45, 64-65 (1988)
(internal quotation marks and citation omitted). A defendant is
"not required to express his [or her] desire with the utmost of
legal precision." Id. at 65. Furthermore, if a "defendant's
conduct and remarks are . . . equivocal, and the police [are]
reasonably . . . unsure of [the] defendant's wishes," they may ask
the defendant "narrowly restricted" questions "to [clarify] the
meaning of his [or her] statements." Id. at 65, n.10. However,
the police may not respond to an unambiguous request to remain
silent with questions designed "to keep the suspect talking, not
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to uphold his right to remain silent." Johnson, supra, 120 N.J.
at 283 (internal quotation marks and citation omitted). Such
follow-up questioning "constitute[s] unlawful interrogation, not
permissible clarification." Ibid.The State bears the burden of proving beyond a reasonable
doubt that it abided by Miranda, and that any confession was
voluntary and uncoerced. State v. Yohnson, 204 N.J. 43, 59 (2010).
Had Brown's counsel moved to suppress his confession, the State
would have been unable to meet that burden, based on the record
before us.
Brown unambiguously asked that questioning stop, and he be
taken to the county jail. In State v. S.S., 229 N.J. 360, 383-84
(2017), the Court noted that a suspect who states he has nothing
else to say has invoked his right to remain silent. That is just
what Brown did when he repeatedly asked to be taken to the jail,
and said, "I don't even wanna talk about this shit no more, man.
It's over. It's over."
The State's contention that defendant was simply upset and
did not want to stop talking is belied by the officer's response,
"I know that you want to go to the County and I understand that."
Rather than accede to Brown's unambiguous request, the officer
asked, "I need to ask you why, why do you want to just want to go
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to the County? Why?" Those questions were obviously designed to
keep Brown talking after he said he wanted to stop.2
Although Brown willingly spoke to the officers two days later,
the questioning was the fruit of the poisonous tree and would have
been suppressed had trial counsel filed a timely motion. "[W]here
the second confession is so intertwined with the first, it
inevitably must be seen as the product of the first and thus wholly
tainted by the preceding constitutional violation." Johnson,
supra, 120 N.J. at 286-87. Here, police predicated their questions
in the second interrogation on the disclosures in the first; the
same officers participated; and it occurred relatively close in
time.
We also reject the notion that the failure to file a
suppression motion was a strategic move entitled to our deference,
as it was apparently uninformed by a careful review of the
interrogation record. See Strickland, 466 U.S. at 690-91, 104 S.
Ct. at 2066, 80 L. Ed. 2d at 695 ("strategic choices made after
less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
2
Brown's request apparently arose out of his resignation to the
idea that his family would spurn him and allies of the victim
would retaliate. However, this does not negate his repeated
requests to stop talking and go to the jail. Defendant's
motivation is of no moment.
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limitations on investigation"); see also State v. Arthur, 184 N.J.
307, 342 (2005).
Therefore, we conclude that plea counsel's failure to file a
suppression motion constitutes deficient performance that
satisfies the first Strickland prong.3
The remaining issue is whether Brown was prejudiced. In
other words, would Brown have insisted upon going to trial, and
would it have been rational for him to do so? Brown contends he
would have gone to trial, even though he would have risked
conviction of murder and a life sentence. His credibility should
be assessed not on the paper record before us, but in an
evidentiary hearing. See State v. Pyatt, 316 N.J. Super. 46, 51
(App. Div. 1998) (noting credibility determinations "are best made
through an evidentiary proceeding with all of its explorative
benefits"), certif. denied, 158 N.J. 72 (1999).4
3
As we conclude that Brown's confession would have been suppressed
because he exercised his right to terminate the interrogation, we
need not reach his additional claims that his will was overborne
by the nature and length of the questioning, alleged threats to
his family, and coercive promises to him.
4
Notably, Brown asserted, in his pro se petition, that he would
have gone to trial but for trial counsel's ineffectiveness in
multiple ways. However, only one now remains in the case — the
failure to move to suppress the confession. On remand, the court
should consider whether Brown would have proceeded to trial but
for that sole instance of ineffectiveness.
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The State contends it possessed substantial proof of Brown's
guilt, separate from his custodial statements, which would have
made it irrational and implausible for Brown to go to trial and
face the attendant risks, rather than accept the plea agreement.
The State argues the police had witnesses willing to testify they
saw Brown near the scene of the homicide, and that Brown had prior
conflicts with the victim. Police also found physical evidence
they said tied Brown to the scene.
However, the record does not permit us to assess the strengths
of the State's proofs at the time Brown entered his plea,
including, for example, the credibility of such witnesses and the
likelihood they would testify. Nor can we weigh such evidence
against the other discovery in the case. The State's claims at
most create an issue worthy of an evidentiary hearing.
Considering the facts in a light most favorable to Brown, as
we must, State v. Preciose, 129 N.J. 451, 462-63 (1992), Brown has
presented a prima facie claim by showing (1) his trial attorney's
performance was deficient by failing to file a motion to suppress
his statement following invocation of his right to remain silent,
and (2) he suffered prejudice because it would have been rational
for him to reject the plea bargain and go to trial. Therefore,
he is entitled to an evidentiary hearing to determine whether he
in fact suffered the requisite prejudice. See id. at 462 (stating
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that an evidentiary hearing should be held where a defendant has
made a prima facie showing in support of PCR).
Reversed and remanded for an evidentiary hearing.
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