On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. The opinion of the Court was delivered by Handler, J.
In this case defendant, while in custody awaiting sentencing on two robbery convictions, initiated dialogue with the authorities with respect to an unrelated homicide incident. Prior to questioning, defendant conferred with his attorney, who, arguably, did not place any limitations upon the ability of the defendant or the prosecutor to discuss the information defendant wished to impart. Defendant thereafter disclosed information to the prosecutor outside the presence of counsel, and proceeded to incriminate himself. We are now called upon to consider whether, in this context, defendant's incriminating statement was effected in violation of his fifth-amendment rights.
In May 1980 defendant, Gerald Kennedy, was in custody, awaiting sentencing for two robbery convictions. Contemplating the prospect of a severe sentence, he advised the Essex County Prosecutor's Office that he had information concerning various unsolved homicides that he wanted to exchange for a recommendation of a lighter sentence. Defendant was taken to the prosecutor's office on May 21, 1980, where he initially met with Detective Michael McGaughran, County Investigator with the prosecutor's office. The conversation focused on the 1976 homicide of Mark Arnold.
After approximately two hours, defendant requested that the conversation cease, so that he could consult with Richard D. Aljian, an attorney who was representing defendant on the unrelated robbery convictions. The investigator immediately terminated all questioning. Defendant's attorney was contacted,
and he came to the office, where he met with defendant for approximately one hour. Although defendant did not fully discuss his knowledge of the Arnold homicide with his attorney, Aljian testified that he advised his client that "he had an absolute right not to say anything and not to give any written statements."
While at the office, Aljian had a conversation with Lawrence Monaco, an Assistant Prosecutor for Essex County. Aljian told Monaco that his client, defendant, was awaiting sentencing on robbery convictions and wanted to bargain for a lighter sentence by relaying information about other crimes. Aljian then left the office, whereupon Assistant Prosecutor Monaco and Detective McGaughrin met with defendant. At approximately 6:30 p.m., Detective McGaughrin again advised defendant of his Miranda rights, which defendant indicated he understood. Defendant then gave a non-incriminating statement relating to the Arnold homicide.*fn1 At this point, the law-enforcement officials considered defendant as only an informant in that case.
On the following day, May 22, 1980, defendant again came to the prosecutor's office, where, during a morning talk with Assistant Prosecutor Monaco and Detective McGaughrin, he revealed a fact that he had earlier withheld -- the full name of his girlfriend, Pat Sanders. Monaco and McGaughrin tracked down Sanders, who gave a statement later that same day that conflicted with defendant's earlier story and tended to implicate him.*fn2
Now viewing the defendant as a suspect in the Arnold murder, Monaco and McGaughrin once again informed defendant
of his rights and confronted him with Sanders' story. At this time, defendant did not request that no questioning occur or that questioning occur only in the presence of counsel. He proceeded to talk with the prosecutor. However, at about 6:00 p.m., defendant stated that he wished to stop talking and return to jail. Questioning immediately ceased, and the three men proceeded downstairs. Defendant then asked what would happen if he failed to give a statement. McGaughrin responded that there would be an ...