On certification to the Superior Court, Appellate Division, whose opinion is reported at 265 N.J. Super. 296 (1993).
Stein, Wilentz, Clifford, Handler, Pollock, O'Hern, Garibaldi
The opinion of the court was delivered by
A jury convicted defendant of the 1987 murder of Patricia Warner. It also found him guilty of burglary, a violation of N.J.S.A. 2C:18-2a; theft, contrary to N.J.S.A. 2C:20-3a; and possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d. The trial court sentenced defendant to a life term with a thirty-year period of parole ineligibility on the murder conviction, and to a consecutive term of five years with thirty-months parole ineligibility on the burglary conviction. It imposed a concurrent five-year sentence on the theft conviction and merged the possessory offense with the murder conviction. The Appellate Division affirmed the judgment of conviction in all respects, 265 N.J. Super. 296 (1993). We granted defendant's petition for certification, 134 N.J. 484 (1993), primarily to consider defendant's contentions that his incriminatory statements were the product of an illegal detention and that his December 2, 1987, confession to the homicide, admitted in evidence as part of the State's case, was taken in violation of his Sixth Amendment right to counsel.
We adopt and set forth the carefully detailed factual summary contained in the Appellate Division opinion:
On November 23, 1987, Patricia Warner was strangled, asphyxiated and stabbed. It is undisputed that defendant killed the victim and later discarded her body in a creek. Although defendant challenges the Law Division's decision admitting his confession, other evidence presented at trial clearly and overwhelmingly established his guilt. Among other things, these proofs consisted of the detailed account of an eyewitness, substantial physical evidence and defendant's own trial testimony. * * *
In 1987, Patricia Warner was twenty-five years old and employed as a secretary. She resided in the second floor apartment of a two-family home owned by her parents. The house had been placed on the market for sale because the decedent was planning to relocate. At approximately 4:00 p.m. on November 23, 1987, the decedent's mother and brother attempted to visit the apartment in order to drop off some food. Although the decedent came to the door, the two were not permitted into the apartment. Upon returning with the decedent's father some four hours later to perform carpentry work on the first floor apartment, Mrs. Warner heard someone "knocking" upon the decedent's door. Hearing no response, Mrs. Warner went upstairs and unsuccessfully attempted to gain entry into the apartment. She then left the building and from the sidewalk observed two men walking away with a radio. Mrs. Warner returned to the decedent's apartment where she saw an interior light suddenly dim.
On the next day, Mr. and Mrs. Warner met their real estate broker at the decedent's apartment. Using a key, the three entered the apartment where they found blood on the wall and inside the bathtub. The police were immediately summoned. Upon responding, the police discovered blood on the walls of the foyer and stairway. A "puddle" of blood was found in the bathtub. The police also noticed what appeared to be the broken blade of a steak knife on the floor of the bathroom. In addition, the bedroom had been "ransacked" and a television had been taken from the living room. By the entry to the kitchen, the police found a pail containing a "pinkish liquid."
Three days later, on November 27, 1987, the decedent's automobile was located on a public street several blocks from her apartment. A local resident told the police that she had recently seen the defendant, who she knew as her son's barber, standing next to the car with the door open. She later observed defendant walking toward the railroad tracks accompanied by another male who was having difficulty standing. Further investigation revealed that defendant lived on the same street that the automobile was found.
Defendant was arrested and transported to police headquarters where he was advised of his constitutional rights and questioned. Initially, defendant admitted that he knew the decedent, but denied burglarizing her apartment. He claimed that the decedent's boyfriend, Erk Drury, had borrowed her car and that he briefly accompanied Drury on a ride. Later that evening, defendant told the police that he had accompanied Drury to the decedent's apartment to borrow her car. He claimed that she refused and an argument developed between Drury and the decedent. According to defendant, he left and went to his aunt's house, where Drury, driving the decedent's automobile, subsequently picked him up.
Upon searching defendant's apartment, the police discovered a rusty knife with a wooden handle, two cable boxes, a television and bloodstained clothing. When confronted with this information, defendant claimed that he had purchased one of the cable boxes "on the street", but owned them both, and that he had cut his finger in a fall. When the officer expressed skepticism about the source of blood on his clothes, defendant recounted that the front passenger seat of the decedent's car was "all wet and bloody," thus soiling his clothing. However, defendant could not explain why the bloodstains appeared on the front of his trousers. At this point, the interrogation terminated. Although defendant was advised that he would be charged with burglary and robbery, he agreed to speak to the officers the following day. Defendant remained in jail that night.
At 2:30 p.m. the next day, defendant was again advised of his constitutional rights and questioned. Defendant explained that he and Drury had returned to the decedent's apartment after borrowing her automobile. According to defendant, Drury met with the decedent alone. After a brief period, defendant joined them. On his way up to the second floor apartment, defendant asserted that he noticed blood on the wall and that Drury appeared to be perspiring and "out of breath." Defendant further related that he saw the decedent lying in the bathtub. At this point, defendant claimed that he mistakenly cut his finger with a pocket knife he had been carrying and soaked it in a bucket of water. He recalled helping Drury remove the decedent's body from the apartment and place it in the front passenger seat of her automobile. Drury allegedly drove off with the decedent's body, leaving defendant behind.
Defendant was then permitted to speak to his cousin, who was a police officer. After a brief conference, defendant agreed to lead the police to the decedent's body. Accompanied by the officers, defendant provided directions to a bridge in Hopewell Township. From the automobile, defendant told the police where they could find the decedent's body. Pursuant to defendant's detailed instructions, the police recovered the body in the creek below the bridge. The police discovered a "red cloth" knotted around the decedent's neck. Later that night, defendant gave the police a formal statement in which he essentially repeated what he had told them earlier in the day. The interview was eventually terminated because of the late hour, and defendant agreed to be questioned on the following day.
At noon, on November 29, 1987, defendant was transported from the holding cell, again apprised of his constitutional rights and questioned. Although defendant elaborated on his prior statements, he provided little additional information. The questioning continued throughout the day with numerous interruptions during which he was permitted to eat, smoke and use the bathroom facilities.
Questioning resumed at 9:00 a.m. the next morning. After being advised of his rights, defendant admitted for the first time that he had stolen the television and cable boxes from the decedent's apartment. Later that day, defendant was brought before a municipal court Judge for his initial appearance on a complaint charging him with burglary and robbery. Although the proceedings were sound recorded, no transcript was prepared and the tapes were destroyed before this appeal was filed. In the complaint, the word "retained" is circled in the area denoting "defense counsel information." Although this cryptic reference is otherwise unexplained, information presented at a pretrial hearing indicates that defendant had employed David Rhoads, a private attorney, to represent him on unrelated drug charges approximately eight months before the homicide. Although the record is not entirely clear, it is reasonably apparent that defendant apprised the Judge at the initial appearance of his prior retention of Mr. Rhoads on the narcotics indictment. In reality, defendant had paid only a fraction of Mr. Rhoads' initial retainer and was later assigned a public defender. As to the present charges, defendant formally applied for an attorney from the Public Defender's Office on December 4 and 5, 1987. The Public Defender subsequently retained Mr. Rhoads to represent defendant on these charges. The point to be stressed is that the record is barren of anything to suggest defendant sought the assistance of a public defender attorney or otherwise expressly invoked his right to counsel at the initial appearance on November 30, 1987. * * *
On the next day, December 1, 1987, the police returned to defendant's apartment and seized additional items of evidence. Defendant's thirteen year old nephew, Jeffrey Tucker, was present and agreed to accompany the officers to police headquarters for questioning. Jeffrey was interrogated in the presence of his mother. He recounted that at 7:00 p.m. on November 23, 1987, he accompanied defendant to the decedent's apartment. They were invited in and an argument subsequently developed between defendant and the decedent. Defendant grabbed the decedent by the neck, tied her hands behind her back with an extension cord and pushed her into the bedroom. Then, in an enraged state, defendant "stuffed" a pink stocking down the decedent's throat and began strangling her, all in the presence of Jeffrey. After a brief struggle, defendant stabbed the decedent in the back and placed her in the bathtub. According to Jeffrey, defendant rummaged through the victim's purse and obtained what he thought were her car keys. Jeffrey related that the two left the apartment and unsuccessfully attempted to start the car. They returned to the apartment but the front door had locked behind them and defendant, using a screwdriver, was forced to pry it open. Upon gaining access to the apartment, defendant found the right set of keys and, with Jeffrey's assistance, stole the television, a cable box, two radios and a pair of binoculars. After transporting several of these items to defendant's apartment, the two returned, placed the decedent's body in the front seat of the car, drove to the Hopewell bridge, and defendant threw the victim "over the railing" into the canal. They later left the decedent's automobile parked on the defendant's street. Following the interview, Jeffrey was released to his parents' custody.
At approximately 9:00 a.m. the next day, December 2, 1987, defendant was transported from the jail to the special investigations unit of the Mercer County Prosecutor's office. After being advised of his rights and signing various waiver documents, defendant was told by the officers that they had secured Jeffrey's statement. Defendant then confessed that he had "cut [the decedent] and dumped her body into [a creek] in Hopewell." He explained that the decedent had become so angered when he suggested that her boyfriend was a homosexual that she slashed his finger with a kitchen knife. Defendant claimed that he then left the apartment, but returned later with Jeffrey. According to defendant's statement, the decedent attacked him with a knife, but he was able to stab her with a screwdriver, cutting her "somewhere between the face and under the neck." He then tied her hands with an extension cord and "stuffed a piece of cloth or a bandanna" in her mouth.
In his statement, defendant recounted that he heard someone knocking at the door shortly after stabbing the victim. After the knocking stopped, defendant ascertained that the decedent was still alive. He then "pulled her by the wrists . . . to the bathroom and put her in the tub," before untying her hands. Defendant recounted that he and Jeffrey took a radio from her bedroom and later hid it under his porch. They then returned to the victim's apartment, pried open the door and found the decedent, who was still alive. The two removed the decedent's television, left the apartment, and sold it to someone "on the street." According to defendant, they then returned to the decedent's apartment where they found the victim at the "bottom of the steps." It was at this point that defendant inadvertently cut his finger and placed his hand in a pail of water near the stairway.
At approximately 6:30 a.m., defendant and Jeffrey placed the decedent's body in the front passenger seat of the automobile and drove to the Hopewell bridge. After discarding the body, they returned to defendant's apartment where they changed their clothing. They later parked the decedent's automobile a short distance from defendant's residence.
Defendant's statements were admitted into evidence at trial. So too, Jeffrey Tucker provided detailed testimony, graphically describing the events leading up to the homicide, defendant's strangling and stabbing of the victim, the subsequent theft of her belongings, and the "dumping" of her body into the canal beneath the Hopewell bridge. In addition, Jeffrey testified respecting defendant's plan to "frame" Drury for the killing. Defendant told Jeffrey that if the police should approach him, he was to provide a fabrication which placed upon Drury the responsibility for the murder. At a later date, defendant allegedly instructed Jeffrey to testify falsely at trial.
The State presented the medical examiner who performed the autopsy. She testified that she found a piece of cloth "very deep . . . into the [decedent's] throat covering her airway." She also indicated that the victim's external injuries included "multiple throat slashings[,] . . . a deep stab wound to the left side of the neck[,] . . . scraping on the right side of her forehead[,] . . . abrasions on her midchest[,] . . . a superficial stab wound [in the chest area] . . [and] linear . . . abrasions on the right wrist." The stab wound on the neck was one to two inches deep, cutting "through the skin, subcutaneous tissues[,] . . . the internal jugular vein and a branch of the carotid artery . . . ." According to the medical examiner, a person inflicted with these injuries could survive only twenty or thirty minutes. She concluded that the cause of death was "acute asphyxia due to gagging stuffed inside [the decedent's] mouth . . . [and] ligature strangulation." The "major contributing cause" of death was said to be "extreme blood loss due to the stab wounds of the neck and multiple throat slashings."
Defendant elected to testify. To some extent, his testimony reflected the description of the killing contained in his formal statement taken on December 2, 1987. According to defendant's testimony, he pushed the victim into her bedroom where he "tied her up" and forced "some type of silk material" into her mouth. Defendant related that he then "took [the decedent] to the bathroom[,] put her in the tub, . . . picked up the knife, . . . turned [his] head" and stabbed her one time. Defendant testified that he was "not sure" whether he had stabbed the decedent in the throat, but he knew he had stabbed her somewhere on her body. Defendant claimed that he never intended to kill the victim, and did so only accidentally.
[265 N.J. Super. at 302-09 (alterations in original).]
Defendant contends that the failure of the arresting officers to afford him a probable-cause hearing for approximately seventy-two hours after he was taken into custody violated his federal and State constitutional rights and required suppression of all, or at least some of, his statements to the police. In Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), the Supreme Court determined that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to any extended restraint of liberty after a warrantless arrest. Id. at 125, 95 S. Ct. at 869, 43 L. Ed. 2d at 72. The Court in Gerstein did not specify a time limit within which the determination of probable cause must occur. Recently, however, in County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991), the Court clarified its holding in Gerstein, stating that "judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein." Id. at 56, 111 S. Ct. at 1670, 114 L. Ed. 2d at 63. The Court noted that if the probable-cause determination does not occur within forty-eight hours, "the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance." Id. at 57, 111 S. Ct. at 1670, 114 L. Ed. 2d at 63. The Court acknowledged that states are free to consolidate probable-cause hearings with other pretrial proceedings, such as bail determinations, but cautioned that neither intervening weekends nor the time required to consolidate pre-trial proceedings qualifies as an extraordinary circumstance. Ibid. Moreover, the Court observed that a probable-cause determination provided within forty-eight hours of arrest may not pass constitutional muster if the arrested person can prove that the determination of probable cause was delayed unreasonably. "Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, [or] a delay motivated by ill will against the arrested individual * * * ." Id. at 56, 111 S. Ct. at 1670, 114 L. Ed. 2d at 63.
Because McLaughlin was decided in May 1991 while defendant's appeal was pending before the Appellate Division, its holding applies retroactively to this appeal. See Powell v. Nevada, 511 U.S. , , 114 S. Ct. 1280, 1281, 128 L. Ed. 2d. 1, 5 (1994) (applying McLaughlin retroactively, and noting that "'[a] . . . rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, . . . not yet final' when the rule is announced." (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649, 661 (1987))). The State concedes that defendant suffered a violation of his constitutional rights, and that to have complied with the holding of McLaughlin the prosecution should have obtained a probable-cause hearing by noon of Sunday, November 29, 1987. The State argues, however, that although delay in obtaining a probable-cause hearing is a factor in determining the voluntariness of a confession, suppression is unnecessary unless a causal relationship existed between the challenged statements and the failure to afford defendant a prompt probable-cause determination.
As the United States Supreme Court has acknowledged, the issue of the appropriate remedy for a delay in determining probable cause was not resolved by McLaughlin. Powell, supra, 511 U.S. at , 114 S. Ct. at 1281, 128 L. Ed. 2d at 7. In earlier cases the Supreme Court, asserting its supervisory authority over federal courts, held inadmissible confessions made by a defendant during a period of illegal detention. See Mallory v. United States, 354 U.S. 449, 455, 77 S. Ct. 1356, 1360, 1 L. Ed. 2d 1479, 1483-84 (1957); McNabb v. United States, 318 U.S. 332, 344-45, 63 S. Ct. 608, 615, 87 L. Ed. 819, 826 (1943).
This Court consistently has declined to adopt the practice set forth in Mallory. See State v. Barry, 86 N.J. 80, 90-91, 429 A.2d 581, cert. denied, 454 U.S. 1017, 102 S. Ct. 553, 70 L. Ed. 2d 415 (1981); State v. Jones, 53 N.J. 568, 570-73, 252 A.2d 37, cert. denied, 395 U.S. 970, 89 S. Ct. 2122, 23 L. Ed. 2d 759 (1969); State v. Seefeldt, 51 N.J. 472, 486, 242 A.2d 322 (1968); State v. Taylor, 46 N.J. 316, 328, 217 A.2d 1, cert. denied, 385 U.S. 855, 87 S. Ct. 103, 17 L. Ed. 2d 83 (1966); State v. Johnson, 43 N.J. 572, 592-93, 206 A.2d 737 (1965), aff'd, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966); State v. Jackson, 43 N.J. 148, 167-68, 203 A.2d 1 (1964), cert. denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965); cf. State v. Worlock, 117 N.J. 596, 621-25, 569 A.2d 1314 (1990) (rejecting contention that court must suppress voluntary post-arrest confession if defendant was arrested without probable cause).
Our cases hold that delay in affording a defendant a probable-cause determination is a factor that courts should weigh, in the totality of the circumstances, in determining whether a confession during the period of detention was voluntary. See Barry, supra, 86 N.J. at 90-91; Seefeldt, supra, 51 N.J. at 486; Jackson, supra, 43 N.J. at 167; State v. Reyes, 237 N.J. Super. 250, 261, 567 A.2d 287 (App. Div. 1989). In assessing the significance of the delay between the time of Tucker's arrest (noon on Friday, November 27, 1989) and his first court appearance (Monday, November 30, 1987), we note initially the uncontradicted testimony at Tucker's Miranda hearing that the then-prevailing practice in Trenton Municipal Court was to hold initial hearings on weekends only for defendants who had been charged with homicide (Tucker not having been charged with murder until the following Wednesday), a practice that under McLaughlin, supra, no longer is permissible. See 500 U.S. at 57, 111 S. Ct. at 1670, 114 L. Ed. 2d at 63. We also note that the probable-cause hearing mandated by Gerstein and McLaughlin is not "accompanied by the full panoply of adversary safeguards -- counsel, confrontation, cross-examination, and compulsory process for witnesses." Gerstein, supra, 420 U.S. at 119, 95 S. Ct. at 866, 43 L. Ed. 2d at 68-69. The Court observed in Gerstein that "the sole issue is whether there is probable cause for detaining the arrested person pending further proceedings," which can be "determined reliably without an adversary hearing" on "hearsay and written testimony." Id. at 120, 95 S. Ct. at 866, 43 L. Ed. 2d at 69. Consistent with both Gerstein's characterization of the required probable-cause determination and McLaughlin's Conclusion that its forty-eight-hour requirement applies during weekends, we note that our Committee on Criminal Practice has recommended that Rule 3:4-1(b)(2) be revised in part to read as follows:
If a complaint-warrant form * * * has been prepared, the law enforcement officer shall present the matter to a Judge, or in the absence of a Judge, a municipal court administrator or deputy court clerk who has authority to set bail for the offense charged without unnecessary delay but in no event later than 12 hours after arrest. That judicial officer shall determine whether there is probable cause to believe that the defendant has committed an offense.
[Supreme Court Committee on Criminal Practice, Report 23-24 (1992-1994 Term).]
Thus, the proposed change in our practice intended to achieve compliance with McLaughlin contemplates an expedited probable-cause and bail determination, presumably in person or by telephone, by either a Judge, a court clerk, or a court administrator, within twelve hours after arrest.
We are fully in accord with the Appellate Division's Conclusion that
defendant would have remained in lawful detention had a probable cause hearing been conducted promptly. The circumstances known to the police were clearly sufficient to establish probable cause for defendant's continued detention. Defendant cannot fairly argue that he would have been released had the question of ...