On certification to the Superior Court, Appellate Division.
Pollock, Wilentz, Clifford, Handler, O'Hern, Garibaldi, Stein
The opinion of the Court was delivered by
The issue is whether the admission into evidence of the uncounselled, post-indictment statement of defendant, Ivan Sanchez, violated his constitutional right to counsel. In an unreported opinion, the Appellate Division ruled that defendant's statement was admissible, and affirmed his conviction for non-capital murder (N.J.S.A. 2C:11-3a(1) and -3a(2)) and possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4b). We granted defendant's petition for certification, N.J. (1991), and now reverse and remand to the Law Division.
According to the State, the underlying facts supporting the charges against defendant are that on December 16, 1986, the
victim, Robert Merkerson, and defendant engaged in a fight in which Merkerson knocked out one of defendant's teeth. Three days later defendant stabbed and killed Merkerson outside a bar in Passaic. On March 24, 1987, defendant was indicted for homicide and unlawful possession of a weapon.
Three months later, on June 26, Detective Howard Simbol of the Passaic Police Department, who was in charge of the investigation, learned that defendant was in custody on unrelated charges at Riker's Island Prison in New York. Detective Simbol drove to the prison with an arrest warrant to serve as a detainer. On the following day, Detective Simbol returned with Detective Thomas Mauro to interrogate defendant. The parties present sharply contrasting versions of that interrogation.
The detectives testified that they went to the "counsel room" at Riker's Island, where defendant was brought to them. After ascertaining that defendant could speak English, they advised him of his "Miranda rights," including his right to counsel. According to the officers, defendant then spontaneously stated: "I know why you are here." Pointing to his mouth, defendant said: "I had to get him back for this. He knocked my tooth out three days before I stabbed him." Detective Simbol testified that he then stopped defendant from saying anything further and asked defendant if he would consent to giving a written statement. Defendant consented, read a Miranda form, initialed each of the rights on that form, and signed the waiver. The detectives then proceeded with the interrogation. In a signed statement, Sanchez detailed the circumstances of the crime, including his departure to New York, and admitted stabbing Merkerson. The detectives conceded that at no time during the entire interview did they inform defendant that he had been indicted.
Apart from agreeing that the detectives did not inform him that he had been indicted, defendant's version of the interrogation conflicted with the State's. He testified that the detectives
never informed him of the subject of the interrogation, that they denied his request for an attorney, and that they neither read his Miranda rights to him nor provided him with an opportunity to read the waiver before signing it. He also denied stating that the victim had knocked out his tooth or that he had killed the victim because the victim had knocked out one of his teeth. Finally, he claimed that the detectives had coerced him into signing the waiver and the confession.
The trial court believed the detectives and denied defendant's motion to suppress the statements. The court found that defendant had given the statements willingly, had never requested an attorney, and had knowingly and voluntarily waived his Miranda rights. In addition, the court held that the detectives had not violated defendant's right to counsel, and found "absolutely no evidence" that the detectives knew whether defendant was represented by or had retained counsel. The court noted "the pivotal consideration in making the Constitutional inquiry was whether on being advised of his rights, the defendant indicated that he wanted the assistance of Counsel * * * and whether he wanted to have Counsel available or present before any interrogation took place."
The jury convicted defendant on both counts, and the court sentenced him to life with a thirty-year parole disqualifier. The Appellate Division affirmed.
The Sixth Amendment to the United States Constitution expressly provides that "in all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence." Although the Sixth Amendment, like the Fifth Amendment, guarantees the right to counsel in pretrial interrogation, the two guarantees serve different purposes. Generally speaking, the Fifth Amendment protects an accused from self-incrimination during police questioning, and the Sixth Amendment remedies the unfairness of that questioning when the
defendant is not represented. As when proving a waiver of constitutional rights generally, to prove a waiver of the right to counsel, the State must meet the heavy burden of showing that the defendant understood his or her right to counsel and knowingly, voluntarily, and intelligently relinquished it. Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 1242, 51 L. Ed. 2d 424, 430 (1977).
The purpose of the Sixth Amendment right to counsel is to enable the defendant to confront the prosecution and to ensure the integrity of the judicial process. James J. Tomkovicz, Standards for Invocation and Waiver of Counsel in Confession Contexts, 71 Iowa L. Rev. 975, 980-81 (1986); Colin E. Fritz, Note, Patterson v. Illinois: Applying Miranda Waivers to the Sixth Amendment Right to Counsel, 74 Iowa L. Rev. 1261, 1266 (1989). For decades, the United States Supreme Court has recognized that the Sixth Amendment safeguards "fundamental rights of life and liberty" and ensures that an accused is provided representation at trial. Johnson v. Zerbst, 304 U.S. 458, 462, 58 S. Ct. 1019, 1022, 82 L. Ed. 1451, 1465 (1938). The right to counsel also attaches to pretrial stages and is triggered when "adversary judicial proceedings have been initiated." Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S. Ct. 1877, 1881-82, 32 L. Ed. 2d 411, 417 (1972). Denying the right to counsel in pretrial proceedings would reduce the trial to no more than an appeal from interrogation. United States v. Wade, 388 U.S. 218, 226, 87 S. Ct. 1926, 1931-32, 18 L. Ed. 2d 1149, 1157 (1967); Escobedo v. Illinois, 378 U.S. 478, 487-88, 84 S. Ct. 1758, 1763, 12 L. Ed. 2d 977, 984 (1964); see Maine v. Moulton, 474 U.S. 159, 170, 106 S. Ct. 477, 484, 88 L. Ed. 2d 481, 492 (1985) ("to deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself"). Until recently, the Court held that the Sixth Amendment right "does not depend upon a request by the defendant," Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 1242, 51 L. Ed. 2d 424, 438 (1977), but now it apparently requires defendants to request counsel, Patterson v. Illinois,
487 U.S. 285, 290-91, 108 S. Ct. 2389, 2394, 101 L. Ed. 2d 261, 271 (1988).
Unlike the Sixth Amendment, the Fifth Amendment does not expressly provide for the right to counsel. The Fifth Amendment right is a preventive measure that protects an accused from self-incrimination during police questioning. Miranda v. Arizona, 384 U.S. 436, 463-66, 86 S. Ct. 1602, 1622-24, 16 L. Ed. 2d 694, 717-19 (1966). Its essential purpose is to prevent compelled self-incrimination. Johnson v. New Jersey, 384 U.S. 719, 729, 86 S. Ct. 1772, 1779, 16 L. Ed. 2d 882, 890 (1966). The right arises during custodial interrogation and seeks to "insure that statements made in the government-established atmosphere are not the product of compulsion." Miranda, supra, 384 U.S. at 466, 86 S. Ct. at 1623, 16 L. Ed. 2d at 719.
Until its decision four years ago in Patterson, supra, 487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261, the United States Supreme Court had consistently extended the protection of the Sixth Amendment right to counsel. In Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), the defendant had been indicted, had retained a lawyer, and had been released on bail. Subsequently, a police investigator surreptitiously listened to the defendant's conversations and recorded his incriminating statements. The Court found that although the federal agents had not violated the defendant's Fifth Amendment rights, eliciting the statements "after he had been indicted and in the absence of his counsel" violated the "basic protection" of the Sixth Amendment. Id. at 206, 84 S. Ct. at 1203, 12 L. Ed. ...