On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler, Pollock and O'Hern. For affirmance -- None. The opinion of the Court was delivered by Pashman, J.
[90 NJ Page 20] Defendant Michael McCloskey was convicted of second degree murder, N.J.S.A. 2A:113-2, murder while armed, N.J.S.A. 2A:151-5, unlawful possession of a knife, N.J.S.A. 2A:151-41(c), and unlawful use of a dangerous weapon, N.J.S.A. 2A:151-56. The Appellate Division affirmed the conviction. We granted certification limited to the issue of whether the use at trial of incriminating statements made by the defendant during police interrogation violated his Fifth and Fourteenth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 88 N.J. 501 (1981). We now reverse.
Defendant McCloskey was arrested by state police while fleeing the scene after a knife fight at T's Zodiac, a bar in Gloucester Heights. The fight occurred about 2:00 a.m. on February 11, 1978 and resulted in at least three stabbings. One of the victims, Michael Franchi, died later that day.
State police took McCloskey to the Gloucester City police station about 2:30 a.m. on February 11, 1978, where the first of four police interrogations took place. Gloucester City police sergeant Robert Fair gave McCloskey the warnings required under Miranda v. Arizona, supra, and began to question him. According to Sergeant Fair's testimony, the defendant at that time "said he didn't want to say anything. He wanted to remain silent."
About 4:00 a.m. Gloucester police interrogated McCloskey a second time, without readministering Miranda warnings. The defendant gave Sergeant Steven Farrell his name and address. In response to further questioning, the defendant stated that he had left T's Zodiac bar with friends and had become involved in a fight. Defendant then refused further comment.
Defendant's third interrogation occurred about 7:50 a.m., four hours later. Sergeant Farrell and a prosecutor's office detective told McCloskey that he would be charged with atrocious assault and battery and that homicide charges might be lodged if the stabbing victim, Michael Franchi, died. The prosecutor's office detective, Joseph Alesandrini, gave McCloskey Miranda warnings and asked him what had taken place. When the defendant again mentioned the fight, Alesandrini asked whether he wanted to make a formal statement. According to Alesandrini, the defendant "then said he wants to talk to a lawyer before he says anything else."
Police did not interrogate the defendant a fourth time until fourteen hours later, about 10:15 p.m. on February 11, 1978. By that time Michael Franchi had died, and police had moved McCloskey to the Camden County Jail. Despite McCloskey's
request for counsel fourteen hours earlier, he had not been provided an attorney. Alesandrini again read McCloskey the Miranda warnings and had him initial a card to indicate that he understood his rights. He then read the defendant a new complaint charging him with murder, gave the defendant a copy of the complaint and asked him if he had anything to say. As Alesandrini testified at trial:
[McCloskey] was standing there saying nothing and appeared that he was confused, so I asked him if he wanted me to ask him some questions.
Q. What, if anything, took place after that?
A. I asked him several questions.
A. The first question was, "Do you want me to ask you questions and you answer?"
"Did you and Franchi have a fight?"
"Did you have a knife and he a ...