On appeal from the Superior Court of New Jersey, Law Division, Union County.
King, Brody and Thomas. The opinion of the court was delivered by King, P.J.A.D.
The critical issue in this appeal is whether a defendant's right to counsel was violated when the State, after indictment, attempted to secure damaging evidence against him by a ruse ostensibly designed to help him secure an alibi witness. This scenario is a modest variation on the "jail house informant" line of cases. We conclude that the State violated defendant's post-indictment right to counsel under Article 1, paragraph 10 of the State Constitution by this attempt to deliberately elicit incriminating information directly from defendant while he was represented by counsel, but without counsel present. The defendant's conviction for felony murder must be reversed.
A Union County jury found defendant guilty of felony murder and related offenses committed on September 2, 1988 in Elizabeth. Defendant and two cohorts were charged with beating, kidnapping and killing a companion, "Sam" Patel, near an industrial railroad siding next to the Pathmark grocery store. The State's principal witness was Roman Fernandez Borges, one of the three defendants. Borges pled guilty to kidnapping, received a 20-year sentence, and fully implicated
defendant in the murder at trial. The third defendant, Gilberto Valdes, pled guilty to murder but never testified at trial.
Defendant Watkins testified at trial. While admitting his presence at the scene, he testified that he personally was not involved in the crimes of kidnapping and murder of Patel. Defendant Watkins left town after the murder and was living in a trailer in a warehouse in Hudson County when he was arrested on November 3, 1988, two months after the crime. Defendant was held in the Union County jail in default of $100,000 bail. He was indicted on March 17, 1989.
Testimony at an Evid.R. 8 hearing held at trial but outside the jury's presence revealed these facts. William Jackson was arrested on charges unrelated to this case and held in the Union County jail during August 1989. Jackson had known defendant Watkins before this time and they began talking about their cases when they saw each other in jail. Jackson testified that Watkins wanted to know if Jackson knew anyone who could be an alibi witness for him. Jackson then looked through Watkins's discovery file and wrote down a phone number of one of the witnesses listed in Watkins's discovery file. Jackson eventually called the Union County Prosecutor's Office about Watkins's case and talked to a Sergeant Johnson.
On September 5, 1989 Jackson went to the Prosecutor's Office and gave a written statement about Watkins's comments to him in the jail. Apparently Jackson told the prosecutor's detectives that Watkins had confessed to the crime. Jackson then took two lie detector tests and failed both. Jackson testified a detective told him, "We can't use you as a witness if you fail two polygraphs."
At some point during their Discussion, a detective arranged for Jackson to give Watkins a certain telephone number and to tell Watkins that the number would be that of a potential alibi witness for Watkins. This phone number was, in fact, that of Abdel Anderson, an investigator with the prosecutor's office.
When Jackson returned to the county jail, he gave Watkins the number and told him, "This is my cousin and he would be an alibi for you." The next day, on September 6, 1989, Watkins tried to call the number but at first got no answer. Jackson then made a call for him, got through, and put Watkins on the line. When Watkins took the phone, Jackson said that he "walked away" and "went back to my room."
Investigator Anderson tape-recorded the September 6, 1989 telephone conversation during which Watkins made statements indicating a consciousness of guilt because he was "involved in a murder" and asking for help in hiring an alibi witness even though "I was there when it happened." Trial began 20 days later on September 27, 1989. The Judge ruled that a redacted version of the taped conversation could be admitted in evidence against Watkins without violating his federal constitutional Fifth and Sixth Amendments rights. We have reviewed the redacted and unredacted versions ...