For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Conford, P.J.A.D., Temporarily Assigned.
[74 NJ Page 66] Defendant was convicted of armed robbery of a Camden storekeeper in
1970.*fn1 A pre-trial motion by defendant for exclusion at the trial of the record of his 1965 conviction in North Dakota for armed robbery to affect the credibility of the defendant was denied, the prosecutor indicating he intended to adduce the conviction should defendant testify.*fn2 Defendant consequently chose, apparently for tactical reasons, to adduce the fact of the prior conviction on his own case.*fn3 On appeal to the Appellate Division defendant contended, for the first time, that the compelled introduction of his North Dakota conviction at the trial was error, because, prior to his plea of guilty, the North Dakota juvenile court had waived its jurisdiction over him to permit his prosecution as an adult without holding a hearing or providing him with counsel in relation to the matter of such waiver. Defendant asserted that a subsequent decision of the United States Supreme Court, Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), established the invalidity of a waiver procedure by a juvenile court conducted without providing counsel for the juvenile.
The Appellate Division accepted the foregoing contention and reversed the conviction. It held Kent retroactive to invalidate the prior North Dakota conviction, and thereby available to taint the current conviction, in which the prior conviction was used to impeach defendant's credibility, because the trial thereof "took place after November 13, 1967, the date of the decision in Burgett v. Texas, 389 U.S. 109, 114,
88 S. Ct. 258, 19 L. Ed. 319 (1967)." The court also cited United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 592 (1972), and State v. Koch, 118 N.J. Super. 421 (App. Div. 1972).*fn4 We granted certification. 70 N.J. 150 (1976). Pending the proceedings in this Court, the North Dakota Supreme Court rejected a motion brought by defendant to invalidate the 1965 armed robbery conviction, holding that Kent had no retroactive effect on the earlier juvenile court waiver of jurisdiction in defendant's 1965 prosecution and that the statute then in effect required no hearing in such waiver proceedings. State v. Lueder, 242 N.W. 2d 142 (1976).
Although there has been a substantial spate of litigation in state and federal courts over the true significance of Kent, particularly in the light of In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), decided the year after Kent, and as to the retroactivity of Kent, or Kent-Gault, in respect of the rights of uncounselled juveniles in juvenile court waiver proceedings, see infra, the present case is unusual in that it is one of the rare cases in which the issue has arisen in the collateral context of the use
of the prior conviction to impeach the credibility of the defendant in a subsequent criminal proceeding or enhance his punishment therein.*fn5 In all the reported cases cited to or found by us, except the two cited in note 5, the retroactivity question arose in proceedings to set aside the original conviction, either on direct appeal therefrom or in post-conviction proceedings, state or federal.*fn6 An additional layer of complexity encrusted on the instant retroactivity problem is that the current prosecution is in a jurisdiction other than that wherein the impugned juvenile proceedings and adult conviction took place.
It will be seen that any attempt faithfully to apply the principles of retroactivity as to newly declared rights in criminal proceedings enunciated both by the United States Supreme Court and this Court must, in part at least, give special consideration to the difference between the context in which the issue arises here and that in which it comes up in most of the reported cases to be discussed.
The first-stage branch of the retroactivity issue involves the question of the putative validity of defendant's prior conviction in North Dakota, where it was rendered, in the light of the subsequent decisions in Kent-Gault. We are at this stage unconcerned with a New Jersey retroactivity question, not merely because New Jersey required a juvenile waiver hearing, with counsel for the juvenile, even prior
to Kent,*fn7 State v. Tuddles, 38 N.J. 565, 572-573 (1962); State v. Van Buren, 29 N.J. 548, 554-558 (1959), but also because the initial inquiry is whether the prior conviction should have been considered a valid one as a matter of its legal status in North Dakota, at the time it was used at the instant trial in 1970.
In connection with the foregoing, a collateral question, raised by this Court at the oral argument, is whether the first-stage question is settled by the North Dakota court's recent resolution of it contrary to the position of defendant. State v. Lueder, supra. Our inquiry was couched in full-faith-and-credit terms. We accept the concession of both sides that, this being a foreign criminal judgment, full faith and credit does not apply. Leflar, American Conflicts Law (2d ed. 1968) § 88 at 202-203; cf. State v. Armsted Industries, 48 N.J. 544, 549 (1967). While comity considerations might ordinarily suggest deference to the North Dakota judgment, that course is forestalled if the injury of which defendant complains is of constitutional stature.*fn8 For reasons to be set forth, we do not propose in this opinion to decide the debated question of the constitutional dimensions of Kent-Gault, but will assume the affirmative of that thesis. In that light, we have in this case an independent obligation, regardless of the North Dakota judicial holding, to decide for ourselves the merits of defendant's contention that the United States Supreme Court would hold that a proper application of retroactivity principles entitles him to an invalidation of the 1965 armed robbery conviction in North Dakota. See State v. Coleman, 46 N.J. 16, 36-38
In Kent v. United States, supra, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84, the United States Supreme Court construed the Juvenile Court Act for the District of Columbia to require that a juvenile court considering waiving its jurisdiction in favor of an adult prosecution of an offender must afford him counsel and a hearing and state its reasons if waiver is ordered. The issue of transfer of jurisdiction was described as "critically important" to the juvenile. Id. at 553, 86 S. Ct. 1045. The opinion of the court is ambiguous as to whether the stated requirements are of constitutional magnitude. Although there are several animadversions to due process and fundamental fairness, 383 U.S. at 553, 557, 562, 86 S. Ct. 1045, there is also this statement.
The Juvenile Court Act and the decisions of the United States Court of Appeals for the District of Columbia Circuit [on construction of the statute] provide an adequate basis for decision of this case, and we go no further. 383 U.S. at 556, 86 S. Ct. at 1055.
Counsel not having been provided the juvenile in that case, the court said it ordinarily would have remanded the matter to the juvenile court for a new determination as to waiver. But, the defendant being over 21, that court no longer had jurisdiction. Therefore the matter was remanded to the United States District Court (which had denied a motion to dismiss the adult indictment) for a hearing de novo on waiver, the conviction to be vacated if the waiver was "inappropriate," but to be confirmed by judgment if proper. 383 U.S. at 565, 86 S. Ct. 1045.
In re Gault, supra, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527, was a broad affirmation of the applicability of principles of procedural due process in proceedings for the determination
of juvenile delinquency in state courts. The court referred to its decision in Kent as follows:
In Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), we considered the requirements for a valid waiver of the 'exclusive' jurisdiction of the Juvenile Court of the District of Columbia so that a juvenile could be tried in the adult criminal court of the District. Although our decision turned upon the language of the statute, we emphasized the necessity that 'the basic requirements of due process and fairness' be satisfied in such proceedings. Id. at 12, 87 S. Ct. at 1436.
These expressions have given rise to wide disagreement in lower federal and state courts as to whether Kent, or Kent with its Gault gloss, established a constitutional right of counsel at a juvenile court waiver proceeding. A majority of both the federal*fn9 and state*fn10 courts appears to have held or assumed such a right established. Compare Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), where the court held the "constitutional safeguard" (id. at 368, 90 S. Ct. 1068) of proof of guilt "beyond a reasonable doubt," to be applicable to the adjudicatory stage of juvenile delinquency proceedings, yet noted (id. at 359, n. 1, 90 S. Ct. at 1070) that "As in Gault 'we are not here concerned with * * * the pre-judicial stages of the juvenile ...