On certification to the Superior Court, Appellate Division, whose opinion is reported at 249 N.J. Super. 41 (1991).
For affirmance in part; for reversal in part; for remandment -- Chief Justice Wilentz, and Justices Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- Justice Clifford. The opinion of the Court was delivered by Handler, J. Stein, J., Concurring. Clifford, J., Dissenting. Stein, J., Concurring in the result.
In this case, the jury convicted defendant, John Reed, of knowing murder and aggravated criminal sexual contact. Defendant had confessed to those crimes and that confession constituted critically important evidence. The admissibility of defendant's confession presents the sole issue on this appeal. The police refused, before and during defendant's interrogation, to inform defendant that an attorney, who had been brought to police headquarters by a friend of defendant, was present and sought to confer with him. The issue is whether that refusal by the police violated defendant's constitutional rights, including the privilege against self-incrimination, and therefore rendered defendant's confession inadmissible.
At approximately 8:00 a.m. on March 16, 1987, the Franklin Township police received a call from Fran Varga. Varga told the police that her roommate and boyfriend, defendant, John Reed, had found the dead body of Susan Green, one of defendant's coworkers. Varga asked the police to meet her and defendant at Green's apartment.
After speaking with defendant and Varga, police entered Green's apartment. The door to the apartment was unlocked, and Green's body was found on the living room floor. She had been stabbed, and her pants and underwear had been pushed down around her knees. An assistant state medical examiner testified that the victim had been stabbed fifty-three times. Twenty-three of the wounds were potentially fatal, penetrating her abdomen, liver, lungs, and heart, and a strong blow to her head had fractured her skull.
At approximately 8:30 a.m., police informed defendant and Varga that they could leave provided they could be reached later for questioning. Shortly thereafter, Detectives Importico and Shedden, of the Franklin Township police, arrived and asked to speak to defendant.
Defendant suffers from a speech impediment due to a harelip and a cleft palate, and also tends to stutter severely when nervous. According to Varga, although she tried to help the officers understand defendant's responses to their questions, the officers ignored her. Defendant agreed to go to the prosecutor's office to give a statement and provide "elimination" fingerprints. Because defendant was still quite upset, Varga informed the police that she would drive him to the prosecutor's office.
Defendant and Varga, along with Detectives Importico and Shedden, arrived at the prosecutor's office shortly before 11:00 a.m. The detectives isolated defendant in an interrogation room, and asked Varga to remain in the waiting room. Varga testified that as soon as defendant was taken away by the police, she called her aunt who gave her the name of an attorney, Peter Lanfrit. Varga called Lanfrit shortly after 11:00 a.m., and told him that she and defendant were at the prosecutor's office, that the police were about to question defendant, and that she and defendant "needed an attorney." Lanfrit responded that he would immediately send William Aitken, an associate from Lanfrit's office. Lanfrit then instructed Aitken to meet Varga and decide whether to represent defendant, Varga, or both of them.
Varga testified that immediately after speaking to Lanfrit she informed a police officer that an attorney was on his way and asked that the police not question defendant until the attorney arrived. The officer, according to Varga, nodded that he understood.
Meanwhile, Chief Richard Thornburg met Shedden and Importico and instructed them to move defendant to the Major Crimes Building, located a few blocks away. Instead of taking defendant past the area where Varga was waiting and down the elevator, the officers led him down the stairs and out the back door of the building. At trial, the officers denied that they had intended to avoid Varga, claiming that walking down four flights of stairs with defendant had been more convenient than using the elevator near which Varga was sitting. The officers drove defendant to the
Major Crimes Building without informing Varga, arriving shortly after 11:00 a.m.
Earlier, at Green's apartment, defendant had told police that Green had called him the previous Friday, terrified because a "black man" was pounding on the window. Defendant told police that when he arrived at Green's house, no one was in sight, so he left after speaking with her for a few moments. The following day, defendant visited Green's home for a dinner date they had made for 5:00 p.m. However, no one answered the door. Unable to reach Green by telephone the remainder of the weekend, defendant maintained that he decided to drop by her home on Monday morning before work. Finding the door unlocked, he entered the townhouse, found Green's body, and called Varga.
Importico testified that he had administered Miranda warnings to defendant because he had been somewhat suspicious of defendant's story. Orally acknowledging that he understood his rights, defendant signed a waiver form, which was witnessed by Importico and Shedden. In the presence of Shedden, Importico, and Thornburg, defendant now gave an account somewhat different from that which he had originally supplied the police. Most significantly, defendant claimed that on Monday morning he had entered Green's home, discovered her body, covered it with a jacket and pillow, and then gone to work.
At trial, Importico testified that at the Conclusion of defendant's second account, he and Thornburg had considered defendant to be "more than just a witness." At approximately 11:30 a.m., Thornburg asked defendant if he would submit to a polygraph exam, and defendant agreed to do so.
Meanwhile, at approximately 11:25 a.m., Aitken arrived at the prosecutor's office. Varga met him, explained that defendant had been taken into an office for questioning, and asked him to go help defendant with the interrogation. Aitken approached the prosecutor who would eventually present the case against defendant. Aitken told the prosecutor that he was there to represent both Varga and defendant. The prosecutor informed Aitken that defendant
was a witness and not a suspect, and stated that, in any event, Aitken had "no right to walk into an investigation." Aitken gave the prosecutor a business card, and the prosecutor assured Aitken that the police would call him if and when defendant requested an attorney. Aitken then took Varga to a coffee shop, where Varga told him what had happened that day.
Because the prosecutor represented the State in the case against defendant, he did not testify at the pre-trial hearing. Thus, the record does not indicate whether the prosecutor informed the investigating officers that Aitken was present. Shedden, however, testified that although he had not been aware that an attorney was present to assist defendant, he had known that one was there for Varga. No one informed defendant that a lawyer retained by Varga was waiting to see him.
Roughly about noon, Thornburg decided to administer a liedetector test, and contacted polygraphist Lt. Mazzei. Mazzei gave defendant a " Miranda quiz" to ensure that he understood his rights. Mazzei testified that defendant answered all of the questions appropriately and indicated that he understood that if he could not afford an attorney, one would be appointed. Defendant also signed a statement that said, "I am here of my own free will, I know I can leave this room by merely telling [Mazzei] that I wish to leave."
Before attaching defendant to the polygraph machine, Mazzei asked defendant some questions concerning his account of the murder. In response, defendant began to tell a story markedly different from the second account he had provided Thornburg, Importico, and Shedden. According to Mazzei, in the third version of the defendant's story, defendant had actually witnessed Green being murdered when, looking through Green's front window, defendant had seen a "black man" repeatedly stabbing her.
Mazzei wrote a synopsis of the story, which defendant read and signed. Mazzei then hooked defendant to a polygraph machine and demonstrated how the machine worked. Defendant decided
he did not wish to take a lie-detector test, and Mazzei unhooked him.
Mazzei left the room and informed Thornburg and Shedden that defendant had changed his story. Mazzei then returned defendant to the interrogation room, where Thornburg and Shedden told defendant that they did not believe he had been telling the truth. Employing what is known as the classic "good cop-bad cop" technique,*fn1 Thornburg raised his voice and accused defendant of killing Green because she would not have sex with him, and stated that defendant was "nothing more than an animal." Thornburg then left the room, claiming that he was going to file a murder complaint.
Shedden remained in the room with defendant. In a friendly tone, Shedden told defendant that although he also believed that defendant had killed Green, he could understand that defendant could have gotten upset with her for "any number of reasons," and that "he could understand how maybe [Green] could have had this coming to her." Defendant responded by admitting that he had killed Green.
After waiving his Miranda rights for a third time, defendant confessed on tape. Stuttering severely, defendant offered his fourth and final account of the events surrounding Green's murder. Defendant explained that Varga had gone away for the weekend even though he had asked her not to go because he was feeling "depressed and weak." After Varga left, defendant took three cans of beer and went to Green's apartment. Defendant claimed that after they talked awhile, Green became seductive and began to unbutton her pants. When defendant told her he did not
want to have sex, she called him names. According to defendant, they argued and Green brandished a knife. He asked her to put it down and to "back off." Green asked him to leave, but suddenly grabbed a "board" and came towards him with it. Defendant said that he had then "freaked out and stabbed her." Defendant could not remember where he had gotten a knife, how many times he had stabbed her (although he knew it was more than once), or whether Green had been alive when he left. He also had trouble remembering the clothes he had been wearing. The confession was taped at 3:52 p.m., almost five hours from the time defendant had been taken into custody and nearly four and one half hours from the time attorney Aitken had asked the prosecutor if he could speak with defendant.
On May 15, 1987, a grand jury indicted the defendant for first-degree murder contrary to N.J.S.A. 2C:11:3a(1) and (2), first-degree felony-murder contrary to N.J.S.A. 2C:11-3a(3), first-degree aggravated sexual assault contrary to N.J.S.A. 2C:14-2a, and third-degree possession of a weapon (knife) for unlawful purposes contrary to N.J.S.A. 2C:39-4. Defendant pled not guilty.
The matter was prosecuted as a capital case. Following defendant's conviction of knowing murder and aggravated criminal sexual contact, the jury did not impose the death penalty. The trial court sentenced defendant to life imprisonment with a thirty-year period of parole ineligibility and a $10,000 Violent Crimes Compensation Board (V.C.C.B.) penalty for the murder conviction. The court also imposed a concurrent five-year sentence with a $30 V.C.C.B. penalty for the aggravated criminal sexual contact conviction.
Prior to trial, defense counsel moved to suppress defendant's confession on the ground that defendant had not knowingly, voluntarily, and intelligently waived his Miranda rights. Defense counsel argued that defendant's mental limitations, separation from his friend, and the prosecutor's failure to inform defendant that his companion had obtained an attorney for him combined to cause an extremely coercive environment that had prevented
defendant from understanding the nature of his rights and the consequences of waiving them.
The trial court found that defendant was sufficiently intelligent to have comprehended his rights and, because defendant was not retarded, the police had not erred in interrogating him without his friend present. The court also found that the police had no duty to inform defendant of the attorney's presence because the attorney had never been retained to represent defendant. Further, the court concluded that even had the attorney been retained on defendant's behalf, the police had not been obliged to inform defendant of that fact. Thus the police had adequately respected defendant's rights, defendant's Miranda waiver had been knowing and voluntary, and his pre-indictment statements and confession were therefore admissible.
Defendant appealed his conviction and sentence. The Appellate Division determined that the verdict sheet had not allowed the jury to consider whether defendant was guilty of passion/provocation manslaughter. Accordingly, the Appellate Division reversed defendant's murder conviction and remanded the matter, 249 N.J. Super. 41, 592 A.2d 4 (1991). The court, however, rejected defendant's contention that his waiver was invalid. It found ample evidence to support the trial court's determination that defendant was not mentally retarded. Relying on federal precedent, the Appellate Division also concluded that the failure of the police to inform defendant that an attorney was seeking to speak with him had not violated defendant's right against self-incrimination. Accordingly, defendant's confession was admissible.
Defendant sought certification by this Court, asserting several grounds in support of his petition. The State filed a cross-petition based on the incorrect jury instruction on passion/provocation manslaughter. The Court denied the State's cross-petition but granted defendant's petition, limited to the issue of whether, under New Jersey law, the refusal to inform defendant of the attorney's presence had violated defendant's privilege against self-incrimination
The Appellate Division, in rejecting defendant's contention that his confession should have been suppressed, followed the decision of the United States Supreme Court in Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). The Appellate Division stated that Moran
squarely held, as a matter of federal constitutional law, that the police had no obligation to advise a defendant that a third party had summoned an attorney to advise him and that, in the absence of a request by the defendant himself, an attorney's presence at the police station does not affect the right of the police to interrogate him.
In Moran, the defendant was in police custody for a burglary. While the defendant was in custody, the police received information connecting the defendant with a murder. The police proceeded to interrogate the defendant about the murder, even though they were aware that a public defender, retained by the defendant's sister in connection with the burglary charge, had called to say that she would act as the defendant's attorney if the police placed him in a lineup or interrogated him. Although the police assured the public defender that they had no plans to question the defendant that evening, nevertheless, shortly after the phone call, the police began interrogating the defendant about the murder. Before each interrogation session, the police informed the defendant of his Miranda rights and had him sign waiver forms, but they never informed him that his sister had retained a public defender to assist him or that the public defender was trying to reach him. Id. at 415-18, 106 S. Ct. at 1138-39, 89 L. Ed. 2d at 417-18.
Writing for the majority, Justice O'Connor held that the actions of the police did not violate the defendant's fifth, sixth, or fourteenth amendment rights. After noting that the voluntariness of the waiver was not at issue, the Court found that there was no question concerning the defendant's understanding of the Miranda
warnings and of the consequences of waiving them. In the Court's view, the failure of the police to inform the defendant that an attorney was available to assist him was irrelevant to the question whether he had knowingly waived his rights. Id. at 422, 106 S. Ct. at 1141, 89 L. Ed. 2d at 421.
The Moran decision elicited a powerful Dissent from Justice Stevens, joined by Justices Brennan and Marshall. In the Dissent's view, the majority was "simply wrong" in stating that the analysis is complete on establishing that a waiver had been knowing and voluntary. Id. at 451-52, 106 S. Ct. at 1157, 89 L. Ed. 2d at 440-41. The Dissent instead stressed the fact that "custodial interrogation is inherently coercive, because disinterested witnesses are seldom available to describe what actually happened, and because history has taught us that the danger of overreaching during incommunicado interrogation is so real." Id. at 450-51, 106 S. Ct. at 1156-57, 89 L. Ed. 2d at 440. Hence, when a waiver of constitutional rights has occurred in a custodial setting, the burden of proving the validity of such a waiver of constitutional rights is "especially heavy." Ibid.
The majority decision in Moran signalled a marked departure from the fifth amendment jurisprudence that state and federal courts had established prior to Moran. At the time Moran was decided, many courts had held that when the police fail to inform a suspect that an attorney is actually available and seeking to render assistance, any subsequent waiver of the suspect's Miranda rights was invalid. See, e.g., People v. Harris, 703 P. 2d 667, 672-73 (Colo.1985); State v. Stephens, 300 N.C. 321, 266 S.E. 2d 588 (1980); Weber v. State, 457 A.2d 674, 686 (Del.1983); Haliburton v. State, 476 So. 2d 192, 194 (Fla.1985), cert. granted and judgment vacated, 475 U.S. 1078, 106 S. Ct. 1452, 89 L. Ed. 2d 711 (1986), aff'd on remand, 514 So. 2d 1088 (Fla.1987), cert. denied, U.S. , 111 S. Ct. 2910, 115 L. Ed. 2d 1073 (1991); People v. Smith, 93 Ill. 2d 179, 66 Ill.Dec. 412, 414-17, 442 N.E. 2d 1325, 1327-30 (1982), cert. denied, 461 U.S. 937, 103 S. Ct. 2107, 77 L. Ed. 2d 312 (1983); State v. Matthews, 408 So. 2d 1274, 1278 (La.1982); Commonwealth v. Sherman, 389 Mass. 287, 450 N.E. 2d
566, 570 (1983); State v. Luck, 15 Ohio St. 3d 150, 15 OBR 296, 472 N.E. 2d 1097, 1102-03, cert. denied, 470 U.S. 1084, 105 S. Ct. 1845, 85 L. Ed. 2d 144 (1985); Lewis v. State, 695 P. 2d 528, 530 (Okla.Crim.App.1985); State v. Haynes, 288 Or. 59, 602 P. 2d 272 (1979), cert. denied, 446 U.S. 945, 100 S. Ct. 2175, 64 L. Ed. 2d 802 (1980); Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322, 323 (1977); State v. Hickman, 175 W.Va. 709, 338 S.E. 2d 188, 194-95 (1985).
Those decisions likely prompted the Supreme Court in Moran to state explicitly: "Nothing we say today disables the States from adopting different requirements for the conduct of their employees and officials as a matter of State law." 475 U.S. at 428, 106 S. Ct. at 1144, 89 L. Ed. 2d at 425. As a result, since 1986, several state courts have had occasion to consider or reconsider the issue presented in Moran. Some of those courts, persuaded by past precedent and the Dissent of Justice Stevens, have expressly rejected Moran on the grounds that its holding offends state-constitutional provisions protecting the privilege against self-incrimination and due process rights. See, e.g., People v. Houston, 42 Cal. 3d 595, 230 Cal.Rptr. 141, 724 P. 2d 1166 (1986), (overruled by constitutional amendment, see People v. Ledesma, 204 Cal.App. 3d 682, 251 Cal.Rptr. 417, 420-22 (1988)); State v. Stoddard, 206 Conn. 157, 537 A.2d 446 (1988); Bryan v. State, 571 A.2d 170 (Del.1990) (expressly reaffirming Weber); Roeder v. State, 768 S.W. 2d 745 (Tex.Ct.App.1988); State v. Isom, 306 Or. 587, 761 P. 2d 524 (1988) (impliedly reaffirming Haynes, supra); Haliburton v. State, supra, 514 So. 2d 1088. See Note, Moran v. Burbine: Supreme Court Tolerates Police Interference with the Attorney-Client Relationship, 18 Loy.U.Chi.L.J. 251 (1986); Casenote, Criminal Procedure , 17 Seton Hall L.Rev. 402 (1987).
Defendant's case now compels this Court to look to its own State law to determine the standards that should govern the conduct of law-enforcement officers in undertaking the custodial interrogation of a suspect and, specifically, to determine whether law-enforcement officers in conducting such interrogation must
inform the suspect that an attorney retained on his or her behalf is present and seeks to provide assistance.
In New Jersey, the right against self-incrimination is founded on a common-law and statutory -- rather than a constitutional -- basis. State v. Hartley, 103 N.J. 252, 260, 511 A.2d 80 (1986). From its beginnings as a State, New Jersey has recognized the right against self-incrimination and has consistently and vigorously protected that right. State v. Fary, 19 N.J. 431, 435, 117 A.2d 499 (1955); State v. Zdanowicz, 69 N.J.L. 619, 622, 55 A. 743 (E. & A.1903) (observing that "[a]lthough [New Jersey] ha[s] not deemed it necessary to insert in [its] constitution this prohibitive provision (the right against self-incrimination), the common law, unaltered by legislation or lax practice, is by us deemed to have its full force"). The right against self-incrimination is an integral and essential safeguard in the administration of criminal Justice. The common-law right against self-incrimination was first codified in New Jersey in 1855. L. 1855, c. 236, § 4. Subsequently, the Legislature incorporated the right against self-incrimination in its enactment of the Rules of Evidence. N.J.S.A. 2A:84A-19; Evid.R. 24 and 25. Thus, although lacking a constitutional provision expressly establishing the right, "[t]he privilege against self-incrimination has been an integral thread in the fabric of New Jersey common law." Hartley, supra, 103 N.J. at 286, 511 A.2d 80 (quoting Fary, supra, 19 N.J. at 435, 117 A.2d 499).
At its core, the privilege against self-incrimination means that "[i]n New Jersey, no person can be compelled to be a witness against himself." Zdanowicz, supra, 69 N.J.L. at 622, 55 A. 743. A suspect has an absolute right to remain silent while under police interrogation, and at trial the State may draw no negative inference from that silence. State v. Ripa, 45 N.J. 199, 204, 212 A.2d 22 (1965). Waiver of that right must be knowing, intelligent, and
voluntary. Hartley, supra, 103 N.J. at 260, 511 A.2d 80 (citing Miranda, supra, 384 U.S. at 463-66, 86 S. Ct. at 1622-24, 16 L. Ed. 2d at 717-19). In demonstrating that a defendant has waived his or her right against self-incrimination the government bears the burden of proof and that burden is a heavy one. Ibid.
Like the right embodied in the Fifth Amendment to the federal Constitution, the state privilege against self-incrimination is not self-implementing. Although "the Constitution does not require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation," Miranda, supra, 384 U.S. at 490, 86 S. Ct. at 1636, 16 L. Ed. 2d at 732, the United States Supreme Court and this Court have developed mechanisms for safeguarding that right. Foremost among those mechanisms are the so-called " Miranda " warnings. Id. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726; Hartley, supra, 103 N.J. 252, 511 A.2d 80. The Miranda warnings inform a suspect not only of the basic right against self-incrimination, but of other rights designed to effectuate that basic right. See Moran, supra, 475 U.S. at 451-52, 106 S. Ct. at 1156-57, 89 L. Ed. 2d at 440-41 (Stevens, J., Dissenting) (citing Miranda and Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)). The privilege, then, consists of a core right that is both preserved and defined by ancillary rights. See Hartley, supra, 103 N.J. at 290, 511 A.2d 80 (Handler, J., Concurring in part and Dissenting in part). The privilege may be conceived as a "cluster of rights" that collectively give substance to the right of a person not to incriminate himself or herself under custodial police interrogation. See Laurence A. Benner, Requiem for Miranda: The Rehnquist Court's Voluntariness Doctrine in Historical Perspective, 67 Wash.L.Rev. 59, 84 (1989).
In effectuating the privilege against self-incrimination, this Court has recognized that ancillary rights, regardless of their legal characterization and derivation, are essential to preserving the privilege against self-incrimination. Hartley, supra, 103 N.J. 252, 511 A.2d 80; id. at 290, 511 A.2d 80 (Handler, J., Concurring). This Court has found those ...