On petition for post-conviction relief.
This is a motion for post-conviction relief, pursuant to R.R. 3:10 A -1 et seq.
Defendant was convicted of rape by an Essex County jury on January 28, 1966. A complaint about the trial judge's charge was dropped as more appropriate to a direct appeal, and defendant contends on this motion that:
(1) An exculpatory statement taken from him by police officers with respect to the offense and later used at the trial to his prejudice was obtained without advising him of his constitutional rights prior to the taking of that statement, and
(2) He was without sufficient funds for an appeal or motion for a new trial and was not advised of his rights to be assigned counsel to prosecute an appeal.
As to the statement, the manner in which it was taken would be relevant to the voluntariness (and thus the probability of truthfulness) of the statement. As the Supreme Court said in State v. Johnson, 43 N.J. 572 (1965), affirmed sub nom. Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2 d 882 (1966), 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. In the statement complained of, defendant admitted intercourse with the prosecutrix but claimed there had been consent. At no time during the trial or at the hearing of this motion did he claim that the statement was untrue or involuntarily given. Yet he would invoke procedural safeguards designed to minimize on all occasions any doubt about the voluntariness of an in-custody statement to invalidate the use of his statement. Even though this court has no doubt about the voluntariness of defendant's statement to the police, this court would not hesitate to preclude its use if the situation came under the purview of Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2 d 694 (1966). Miranda held that statements obtained from defendants during incommunicado interrogation in a police-dominated atmosphere, without full warning of constitutional rights, were inadmissible as having been obtained in violation of the Fifth Amendment privilege against self-incrimination.
However, in Johnson v. New Jersey, supra, 86 S. Ct., at pp. 1774-1775, the United States Supreme Court stated:
"In this case we are called upon to determine whether Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2 d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2 d 694, should be applied retroactively. We hold that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of that decision. We hold further that Miranda applies only to cases in which the trial began after the date of our decision one week ago. The convictions assailed here were obtained at trials completed long before Escobedo and Miranda were rendered, and the rulings in those cases are therefore inapplicable to the present proceeding."
The Miranda case was decided on June 13, 1966. Defendant's trial was completed on January 28, 1966. Thus, the Miranda safeguards were not applicable during his trial.
Defendant's trial did take place after June 22, 1964, the date on which Escobedo was decided. However, in Johnson v. New Jersey, supra, 86 S. Ct., at p. 1781, the United States Supreme Court interpreted Escobedo as follows:
"Apart from its broad implications, the precise holding of Escobedo was that statements elicited by the police during an interrogation may not be used ...