Conford, Matthews and Fritz. The opinion of the court was delivered by Conford, P.J.A.D.
[118 NJSuper Page 423] In this appeal from denial of post-conviction relief we find potential merit in only one of the appellant's contentions -- that his conviction in May
1967 for armed robbery was unconstitutionally flawed by the introduction into evidence by the State on his cross-examination of two prior convictions of defendant in South Carolina, one for highway robbery and the other for escape.*fn1 He is entitled to a new trial if he had no counsel and did not waive counsel on the occasion of such convictions.*fn2 (The State also confronted defendant with a third prior conviction -- for manslaughter -- but defendant has admitted he had counsel in that matter.) We find ourselves constrained to conclude that if defendant was uncounseled in the prior convictions, invalidation of the instant conviction is mandated by the clear implication of United States v. Tucker , 404 U.S. , 92 S. Ct. 589, 30 L. Ed. 2d 592 (U.S. Sup. Ct., Jan. 11, 1972), coupled with the holding and rationale of Burgett v. Texas , 389 U.S. 109, 114, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), both decided subsequent to defendant's present conviction. We have had and have considered supplemental briefs from the parties in relation to the effect of Tucker.
Defendant was tried and convicted before a jury in May 1967 on an indictment for armed robbery. The principal witness for the State, Mrs. Morris, identified defendant at a pretrial confrontation and in court as one of two men who robbed her in her home. Defendant testified in denial of his complicity in the crime, and gave an alibi, with purported support of two witnesses. On cross-examination, he admitted prior convictions in South Carolina for escape and for highway robbery, the latter in 1949 when he was 17 (as well as the aforesaid manslaughter conviction in 1951). There were defense objections, but not on the ground of lack of counsel at the time of the prior convictions. In accordance with our settled law, the trial judge instructed the jury
that the prior convictions could be considered by them to weigh against defendant's credibility. N.J.S. 2A:81-12.
In sentencing defendant to 10 to 13 years imprisonment, the trial judge alluded to defendant's record and said that "crime evidently is a way of life with you" and that defendant was a "hardened criminal."
On direct appeal to this court defendant argued error on the ground, among others, that he was uncounseled at the time of the prior convictions and that the Burgett case, supra (decided November 13, 1967), mandated a reversal. We affirmed the conviction on October 4, 1968. As to the point here under consideration we said (in an unpublished opinion):
2. The contention of error in admission of prior convictions to affect credibility, insofar as based on the recent decision of the United States Supreme Court in Burgett v. Texas , [389 U.S. 109, 88 S. Ct. 258], 19 L. Ed. 2d 319 (1967), is not available on the record of this appeal as that record fails to show defendant was not represented on the earlier conviction, or, if unrepresented, that he had failed to waive counsel. We therefore need not inquire whether the reach of the Burgett case extends to use of prior convictions (without counsel) only to affect credibility, or whether the doctrine of that case is retroactive.
Our disposition of this appeal is without prejudice to any post-conviction proceeding the defendant may bring.
Our Supreme Court denied certification February 13, 1969, 53 N.J. 348, and the United States Supreme Court denied certiorari June 9, 1969, 395 U.S. 949, 89 S. Ct. 2030, 23 L. Ed. 2d 469.
Thereafter defendant instituted this proceeding for post-conviction relief, the petition containing a sworn verification by him that prior convictions were used against him at his trial in which convictions he was "without assistance of counsel and counsel was not waived."
At the post-conviction hearing counsel for defendant offered to have him testify that he was without counsel at either the highway robbery or escape prosecutions. The State represented to the court that its own investigation of the South Carolina court records failed to reveal any information
which would permit it to controvert the defendant's representations as to absence of counsel. Thereupon the court declined the proffer of testimony, saying: "For the record, * * * I assume that defendant was [ sic ] in court here and will testify that he did not have counsel at either one of those convictions." Therefore, the judge noted later in the proceedings, the "requirement of some evidence [was] moot." After argument the court declined post-conviction relief essentially on the grounds that defendant should have made his objection to the invalidity of the prior convictions at his trial and that in any event Burgett was either not applicable or not retroactive in effect.
The State's interest in the integrity of the instant conviction should have dissuaded the trial court from stipulating the truth of defendant's representations as to absence of counsel without requiring him to testify to that effect, as he offered to do. Moreover, the stipulation did not expressly cover waiver of counsel, which could have been readily settled by having defendant interrogated as to whether he was advised of his right to counsel and that counsel would be provided for him if he was indigent. Despite the fact that the certified copies of the judgments of the escape and highway robbery convictions, apparently used at the trial and presently submitted to us, are silent as to representation; that waiver of counsel is not presumable from a "silent record," Carnley v. Cochran , 369 U.S. 506, 512, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962), and that courts "indulge every reasonable presumption against waiver of constitutional rights," id. at 514, 82 S. Ct. at 889; Johnson v. Zerbst , 304 U.S. 458, 464-465, 58 S. Ct. 1019, 82 L. Ed. 1461 (1937), we deem the proper course of justice to require a remand for testimony and findings on the questions of presence of counsel and waiver. The remainder of this opinion proceeds on the assumption that absence of counsel and non-waiver thereof will be established on the remand, within the evidentiary principles just alluded to. If not, the conviction will be affirmed.
I. The reach of Burgett to impeachment of ...