For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
[43 NJ Page 576] The defendants, Sylvester Johnson and Stanley Cassidy, together with Wayne Godfrey, were tried in January 1959 for felony murder. The jury found them guilty of murder in the first degree without recommendation of life imprisonment, and the court sentenced them to death. This court affirmed the convictions, State v. Johnson, 31 N.J. 489 (1960), and a number of post-conviction applications followed.*fn1
This appeal by Johnson and Cassidy is from the most recent trial court denial of their application for post-conviction relief. The trial court refused the defendants' request for a full evidentiary hearing and denied them relief after hearing oral argument only. On their appeal to this court, defendants submitted affidavits in support of their grounds for relief. For the purpose of this appeal, we will consider the affidavits as if they were offered for the trial court's consideration.
At the trial the evidence against the defendants and Godfrey included their confessions given to the police shortly after they were apprehended. The affidavits submitted by the defendants on their present application allege, inter alia, that prior to, and at the time they confessed, they were subjected to physical and mental coercion and were held incommunicado. These allegations were not made at the trial or on their direct appeal to this court. See State v. Johnson, supra, 31 N.J., at p. 502. The allegations of physical and mental coercion were raised, however, on their first motion for post-conviction relief. The trial court and this court found that the defendants' stories were unbelievable and that there was no reasonable basis to say the confessions were involuntary. State v. Johnson, 63 N.J. Super. 16, 42-43 (Law Div. 1960), affirmed 34 N.J. 212, 223, 228 (1961). These allegations and the
allegation that they were held incommunicado go to the issue of voluntariness. As that issue has been fully litigated and decided against the defendants, it may not be raised again. State v. (Edgar) Smith, 43 N.J. 67, 74 (1964); R.R. 3:10A-5. Indeed, the question of voluntariness has been fully litigated and determined against Johnson and Cassidy in the federal courts. United States ex rel. Johnson v. Yeager, 327 F.2d 311, 316-319 (3 Cir. 1964), cert. denied 377 U.S. 984, 84 S. Ct. 1890, 12 L. Ed. 2 d 751 (1964). Godfrey's confession, however, was held to be involuntary.*fn2 327 F.2d, at pp. 313-316, cert. denied, New Jersey v. Godfrey, 377 U.S. 977, 84 S. Ct. 1882, 12 L. Ed. 2 d 745 (1964).
The affidavits further allege that during their interrogation, the defendants asked for and were denied an opportunity to consult with an attorney and were not advised of their right to remain silent.*fn3 These allegations were not made in any of the prior proceedings, nor in their present petitions to the trial court. The defendants made these allegations for the first time in their affidavits submitted to this court. Denial of an opportunity to consult with an attorney and failure to be advised of the right to remain silent are factors relevant to the issue of voluntariness. State v. Grillo, 11 N.J. 173, 180-181 (1952); State v. Pierce, 4 N.J. 252, 262 (1950). See Cicenia v. LaGay, 357 U.S. 504, 509, 78 S. Ct. 1297, 2 L. Ed. 2 d 1523, 1528 (1958). If these allegations are made on that issue, our consideration is precluded by our prior judgment. State v. (Edgar) Smith, supra; R.R. 3:10A-5.
The defendants, relying upon Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2 d 977 (1964), apparently contend that entirely apart from the issue of voluntariness, the alleged denial of an opportunity to consult with counsel, and the failure of the police to advise them of their right to remain silent prior to their confessions, invalidate their convictions. Escobedo was decided by the United States Supreme Court on June 22, 1964, which, of course, was later than their convictions and appeal, and their previous applications for post-conviction relief. That decision held inadmissible at a defendant's subsequent criminal trial a statement elicited from him by the police under the following circumstances: Escobedo was arrested and interrogated by the police concerning the murder of his brother-in-law. He made no statement and a lawyer whom he had engaged obtained his release pursuant to a writ of habeas corpus. Eleven days later, the police again arrested Escobedo and told him that one DiGerlando had named him as the murderer. The police took Escobedo to police headquarters where they interrogated him for a number of hours. The police denied his repeated requests to consult with his lawyer, and never advised him of his constitutional rights. During the interrogation, Escobedo's lawyer arrived at the police station, but his repeated requests to see his client were denied. The court held that in the combination of circumstances -- the suspect had been taken into custody, the interrogation had turned from investigatory to accusatory, the suspect's repeated requests for an opportunity to consult with his lawyer, and his lawyer's repeated requests to consult with him had been denied, and the suspect had not been warned of his right to remain silent -- the accused had been denied the assistance of counsel in violation of the Sixth Amendment as made obligatory upon the states by the Fourteenth Amendment.
Only one year before the trial of defendants' case, and six years before Escobedo, the United States Supreme Court, in
Crooker v. California, 357 U.S. 433, 78 S. Ct. 1287, 2 L. Ed. 2 d 1448 (1958), and Cicenia v. LaGay, supra, 357 U.S. 504, 78 S. Ct. 1297, 2 L. Ed. 2 d 1523 (1958), expressly rejected the contention that every accused has a constitutional right to consult with counsel during police interrogation.*fn4 This was the prevailing law not only at the times of defendants' trial and direct appeal, but also at the times of their previous applications for post-conviction relief. The facts in Cicenia are so similar to those in Escobedo that it would be unreasonable to conclude that Escobedo did not overrule Cicenia. Assuming that the allegations contained in defendants' affidavits are within the principle announced by Escobedo (an assumption which we regard as unsound), and assuming for present purposes that Escobedo stands for a new rule of constitutional law which does not depend on voluntariness, the question is whether that rule should be applied to the convictions of the defendants even though their trial, its affirmance on appeal, and the disposition of their previous applications for post-conviction relief antedated Escobedo.
The defendants, in support of their argument for retroactive application of Escobedo to their convictions, cite Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2 d 799 (1963). Gideon was a federal habeas corpus proceeding which invalidated a state criminal conviction where the indigent defendant had been denied the right to have an attorney represent him at his trial. It held that every defendant is constitutionally entitled to the assistance of counsel at his
trial. Defendants contend that since Gideon was a right to counsel case and has generally been given retroactive effect,*fn5 Escobedo, which also turns on the right to counsel, therefore must likewise be given retroactive effect.
There are, however, several factors which distinguish Gideon from Escobedo. First, Gideon itself was a collateral attack while Escobedo was a direct appeal. Second, the opinion in Escobedo does not indicate whether the court intended retroactive application. Unlike the treatment of Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942), in Gideon, which overruled that case, there is not the slightest intimation in Escobedo that either Cicenia or Crooker was an "abrupt break with its own well-considered precedents," see Gideon, 372 U.S., at p. 344, 83 S. Ct., at p. 796, 9 L. Ed. 2 d, at p. 805; or "departed from the sound wisdom upon which the Court's holding in Powell v. Alabama [287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158] rested," id., at p. 345, 83 S. Ct., at p. 797, 9 L. Ed. 2 d, at p. 806; or was "'an anachronism when handed down * * *.'" Ibid. Unlike Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961), there is no language in the court's opinion in Escobedo which provides ammunition for arguing whether retroactive effect was intended. For discussion of the arguments on either side, see Bender, "The Retroactive Effect of An Overruling Constitutional Decision: Mapp v. Ohio," 110 U. Pa. L. Rev. 650, 668-73 (1962). And unlike Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956), Escobedo does not contain a concurring opinion indicating that the majority intended retroactive application. See Justice Frankfurter, concurring, id., at p. 20, 76 S. Ct., at p. 591, 100 L. Ed., at p. 900. Third, no subsequent adjudication by the Supreme Court nor any
other court has come to our attention which reveals whether Escobedo was intended to be applied retroactively. As noted above, Gideon has been given retroactive application in a number of cases. Griffin was applied retroactively in Eskridge v. Washington State Board, 357 U.S. 214, 78 S. Ct. 1061, 2 L. Ed. 2 d 1269 (1958).
There is nothing in the Constitution itself which compels the automatic and general application of every new rule of law to invalidate decisions already finally rendered. See Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374-375, 60 S. Ct. 317, 84 L. Ed. 329, 333 (1939); Sisk v. Lane, 331 F.2d 235, 239 (7 Cir. 1964); United States ex rel. Linkletter v. Walker, 323 F.2d 11, 14 (5 Cir. 1963); see also Bender, supra, 110 U. Pa. L. Rev., at p. 671 (1962); Note, "Prospective Overruling and Retroactive Application in the Federal Courts," 71 Yale L.J. 907 (1962); Note, "Collateral Attack of Pre-Mapp v. Ohio Convictions Based on Illegally Obtained Evidence in State Courts," 16 Rutgers L. Rev. 587, 588-91 (1962).
Perhaps, years ago, there was a philosophical compulsion to apply a new ruling retrospectively. The so-called Blackstonian conception of the nature of law and judicial decision-making was that law was perpetual and immutable. Judges were thought to be the discoverers rather than the creators of the law. Thus, a given decision was merely an evidence of the law; the most recent decision being the most authoritative evidence. An overruled holding was not bad law, it was simply never the law. See Levy, "Realist Jurisprudence and Prospective Overruling," 109 U. Pa. L. Rev. 1, 2 (1960); Note, supra, 71 Yale L.J., at p. 908.
Whatever the past status of the above philosophy, it has been recently characterized as a "splendid myth." United States ex rel. Durocher v. LaVallee, 330 F.2d 303, 312 (2 Cir. 1964); see also Gaitan v. United States, 317 F.2d 494, 497 (10 Cir. 1963) United States ex rel. Angelet v. Fay, 333 F.2d 12, 16 (2 Cir.), cert. granted 379 U.S. 815, 85 S. Ct. 126, 13 L. Ed. 2 d 28 (1964); Levy, supra, 109 U. Pa. L. Rev.
1. See also Justice Frankfurter's concurring opinion in Griffin ...