Conford, Matthews, and Fritz.
Defendant was indicted on April 10, 1968 by a Passaic County grand jury for the murder of his wife on March 1, 1968. N.J.S.A. 2A:113-1 and 2. He was convicted after a jury trial on December 11, 1968, and on January 8, 1969 sentenced to a term of 14 to 15 years in State Prison, Trenton. His conviction was appealed and this court affirmed in an unreported opinion. Thereafter, the Supreme Court granted certification and reversed the conviction on the ground that certain statements made by defendant in police headquarters after his arrest, which were adduced in evidence by the State during the trial, were obtained in violation of defendant's constitutional right to counsel as delineated in Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). State v. Slobodian , 57 N.J. 18 (1970). Defendant was again tried before a jury in Passaic County Court and again found guilty of second degree murder on January 27, 1971. He was sentenced on February 24, 1971 to a term of not less than 14 nor more than 15 years in State Prison, Trenton. This appeal followed.
The facts adduced at the second trial are essentially the same as those set forth in the Supreme Court's opinion in State v. Slobodian , above, except, of course, that the statements given by defendant in police headquarters were not introduced as part of the State's direct case.
Defendant took the stand and testified as to his recollection of the facts surrounding the death of his wife. During
cross-examination the State was permitted to refer to the oral statements given by defendant in police headquarters for the purpose of affecting his credibility. These statements were the same which the Supreme Court found to have been obtained from defendant in violation of his constitutional rights. The trial judge permitted their use for the limited purpose indicated after he conducted a voir dire out of the presence of the jury and determined that they had been voluntarily given to the police by defendant. The State was also permitted to produce as rebuttal evidence those portions of defendant's statements which contradicted his direct testimony through the testimony of two police officers who heard the original statements.
Defendant argues that this use of the statements in question violated defendant's rights under the Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States as enunciated in Miranda. We disagree. The issue raised in this argument by defendant is squarely answered by the opinion of the Supreme Court in Harris v. New York , 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). The court in Harris held that although the defendant's prior inconsistent statements which were voluntary had been made to the police under circumstances rendering them inadmissible for substantive purposes under Miranda , such statements could properly be used to impeach his credibility, since "The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." 401 U.S. at 226, 91 S. Ct. at 646, 28 L. Ed. 2d at 5.
Harris was decided after defendant's second trial and sentencing (February 24, 1971). There is no problem however as to whether its holding should be deemed merely prospective or retrospective as well. The court held that it was not making new law, contrary to Miranda , but rather that the strict holding of Miranda did not extend to the precise issue:
Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the court's holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards. [401 U.S. at 224, 91 S. Ct. at 645, 28 L. Ed. 2d at 4]
Defendant also argues that under Walder v. United States , 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954), his statements could only be used to impeach him as to collateral matters. This argument was answered by the court in Harris when it noted that it was not persuaded that there is a difference in principle with ...