Whether circumstantial proof is permissible to allow an inference of assent or adoption of an accomplice's written statement.

Yes. The court may permit the jury to consider whether Defendant adopted his accomplice brother's written statement when a foundation has been established using circumstantial evidence.

Defendant Randy Campney and his younger brother, Burton Campney, were arrested in connection with the robbery of a convenience store. Defendant invoked his right to counsel and refused to speak with police officers. Police interrogated Burton who gave a statement detailing how the two brothers burglarized the store. However, before Burton would sign his statement, he asked to speak with Defendant. The brothers spoke privately and when the investigators returned, they observed Defendant holding Burton's written statement. When asked if he was ready to sign the statement, Burton asked his brother what he should do. While still holding the statement, Defendant replied, "You might as well sign it, you already told them all about what happened." After this utterance, Defendant handed the paper back to Burton so he could sign it.

The court instructed the jury that before it could consider Defendant's utterance as an adoption of Burton's written statement, it had to find that, in fact, Defendant made the response and that by making the response, Defendant adopted Burton's statement as his own. Only after these two criteria were satisfied, could the jury consider and weigh Defendant's utterance as an adoptive admission of Burton's written statement. The jury convicted Defendant of burglary in the third degree.

The Appellate Division, with one Justice dissenting, affirmed. The Appellate Division concluded that the court and the jury could draw reasonable inferences that the brothers had discussed the statement, and that Defendant had read it and adopted it as his own, from the direct evidence presented.

The Court of Appeals affirmed, with one Justice dissenting, stating that the record in this case contains sufficient circumstantial evidence to support the foundation for a jury to weigh and to attribute the brother's statement to Defendant. Reasoning that the statement was an excited utterance, the Court also dismissed the Defendant's argument for suppression of his statement because it was acquired in violation of his invoked right to counsel.