On appeal from Superior Court, Law Division, Essex County.
J.h. Coleman and Levy. The opinion of the court was delivered by Coleman, P.J.A.D.
The significant issue raised in this appeal is whether defendant, who was twenty-two years old with an I.Q. of 71, waived his privilege against self-incrimination. The State had the heavy burden of demonstrating that such a waiver was made "voluntarily, knowingly, and intelligently." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 707 (1966). We hold that the State sustained its burden beyond a reasonable doubt.
Following the denial of a motion to suppress confessions given by defendant, he entered conditional guilty pleas, see R. 3:9-3(f), to six third-degree burglaries, contrary to N.J.S.A. 2C:18-2. He was sentenced to concurrent custodial terms of four years on November 30, 1990. On October 28, 1991, we granted leave to file a notice of appeal nunc pro tunc. Defendant's appellate brief was filed January 29, 1993, approximately ten months after he had been paroled. Defendant contends in this appeal the State failed to sustain its burden of "proving that the mentally retarded defendant knowingly and intelligently waived his right against self-incrimination before he confessed."
It is important to note that the waiver issue raised in this appeal involves an entirely different analysis than that required when determining whether a suspect's right to remain silent was "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S. Ct. 321, 325-26, 46 L. Ed. 2d 313, 320-21 (1975); State v. Hartley, 103 N.J. 252, 261-67, 511 A.2d 80 (1986). The waiver analysis is
based upon requirements of the Fifth Amendment privilege against self-incrimination, made applicable to the states through the Fourteenth Amendment, and New Jersey's common law privilege against self-incrimination incorporated in Evid.R. 23, 24 and 25, now N.J.R.E. 501, 502 and 503. State v. Hartley, supra, 103 N.J. at 260, 511 A.2d 80.
Defendant was arrested the night of June 13, 1990, by the Orange Police Department in connection with an investigation of burglaries on the North side of Park Avenue. Defendant's first contact with Detective Louis Castro, who was assigned to the investigation, was on June 14th at about 8:00 a.m. in the Detective Bureau. When Detective Castro asked defendant to read Miranda warnings from a poster on the door in the Detective Bureau, defendant informed the detective that he was unable to read or write. Defendant said he only reached the eighth or ninth grade in school. Detective Castro then read the Miranda warnings to defendant. After reading the Miranda warnings to defendant a second time, Detective Castro had defendant place his initials beside each of the five statements comprising the warnings. The initials were intended to represent an acknowledgement that defendant understood the warnings.
Detective Castro testified further that defendant also verbally acknowledged that he understood each of the warnings after the detective repeated each. Then, Detective Castro asked defendant to contact a relative or friend to witness any statement he might give because defendant was illiterate. Neither defendant nor Detective Castro, however, was able to have someone come to the police station at that time. During an interview with defendant, he told the detective he had committed a number of burglaries in Orange and he implicated others. Detective Castro was called away on another matter before taking a recorded statement from defendant on June 14, 1990.
Detective Castro next saw defendant at approximately 8:00 a.m. on June 15. He again gave defendant fresh Miranda warnings while following the same procedure utilized on June 14. Defendant stated that he was involved in a number of burglaries and suggested he would identify the places if driven around. Detective Castro and Detective-Sergeant Minotti drove defendant around, and he identified homes he burglarized. Defendant also gave details of each burglary which compared favorably with the police file. At the end of the tour, defendant was taken back to the Detective Bureau where he was again given fresh Miranda warnings before confessing to each burglary, following the previously described procedure. Seven written confessions were given by defendant. Detective Castro typed defendant's answers given during the questioning verbatim.
On June 19, defendant's niece, Shannon Jones, reviewed each confession with defendant at the police station. Jones, who completed the eleventh grade in school, signed a statement acknowledging that defendant told her he understood the Miranda warnings. In her signed statement, she was asked if defendant fully understood his Miranda waiver and she answered yes. In that same statement, she also indicated defendant said he "fully understood and that he did not have to say anything at all and could stop at any time." Consequently, by the time defendant told Jones he understood the warnings, he had been ...