SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5669-94T2
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
P.Z.,
Defendant-Respondent.
_____________________________________
Argued October 18, 1995 - Decided November 13, 1995
Before Judges Shebell, Wallace and Newman.
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County.
Marc E. Roessler, Assistant County Prosecutor
argued the cause for appellant (Daniel J.
Carluccio, Ocean County Prosecutor, attorney;
Mr. Roessler, of counsel, and on the brief).
James Pinchak, Assistant Deputy Public Defender
argued the cause for respondent (Susan L. Reisner,
Public Defender, attorney; Mr. Pinchak, of
counsel, and on the brief).
The opinion of the court was delivered by
SHEBELL, P.J.A.D.
The State, on leave granted by this court, appeals from an
order of the Law Division that granted the motion of defendant,
P.Z., to bar, on constitutional grounds, the use against him in
this criminal prosecution of certain statements he gave to a
Division of Youth and Family Services (DYFS) case worker. We
affirm.
On May 2, 1995 a hearing was held on defendant's motion to
suppress his statements. The judge found that the Prosecutor's
Office had knowledge of the incident of child abuse from the
outset of the civil matter, when DYFS notified them as required
by N.J.S.A. 9:6-8.36a. He then went on to state:
Here's a man who basically has no reason
to think, at that point, that he's going to
be charged with anything, but we know that
the Prosecutor's been involved, at that
point, a good long period of time.
They're looking at this case. And
certainly, there's a possibility here that
he's a target. And now that -- now that the
AG and everyone else involved with DYFS knows
from the wife that he told [her] he did it,
that he shook the child, and so on, and so
forth. And they know that they're going to
go see him now. They're going to go see him
sans [prosecutor], okay? Sans anybody with a
badge. You know, the question was properly
asked, rightly so, by the State.
["]You have the power to arrest?["]
No, but they have a duty, an immediate
duty, to call the Prosecutor's Office and let
them know precisely what they found, under
the circumstances.
The judge found further that the statement made by defendant
to the DYFS investigator -- "Look, my attorney told me I
shouldn't discuss this with you, you know," if made to a "law
enforcement officer," in a criminal setting, would be taken by
the officer to be an invocation of right to counsel. The judge
held that the statement, "under these circumstances,
notwithstanding the finding that this was ... not a custodial
setting, ... was tantamount to an invocation of his right to
counsel ... under the Sixth Amendment." He explained:
So I think that was a -- an invocation
of a right to counsel that should have been
honored under the facts of this case.
The subject matter of Title Nine, and
... particularly, as the allegations of this
case are applied in Title Nine, though that's
a Civil type matter, where right to counsel
is called for, the allegations clearly that
they were talking about there, if true, could
have just as well been handled criminally.
And Title Nine recognizes that, because
they say ... let the Prosecutor know
immediately. Keep the Prosecutor informed.
It's a difficult bridge that we jump
back and forth from.
The Prosecutor is in the case, the
Prosecutor is out of the case, not really a
Criminal action.
No Criminal Complaints really filed, but
they're there.
They're -- and I don't mean to say this
in any type of sinister way, they're
hovering, hovering, listening, hearing,
talking to the DYFS people. Trying to do
their job. Looking to prosecute these people
criminally, if that's appropriate.
But I think when they do that, they've
got to be held to the standard, which one is
held to if a Complaint has, in fact, been
filed, and counsel has been appointed.
The facts are that during the fall of 1993, defendant's seven week old daughter, C.Z., was hospitalized with injuries sustained from "Shaken Baby Syndrome." Shortly thereafter, a Title Nine action was brought against the defendant and his wife as parents of C.Z., by the Attorney General on behalf of DYFS. Defendant was represented by a public defender, as provided for by N.J.S.A. 9:6-8.43. The Family Part judge entered an order, essentially retaining legal custody in DYFS of the parents' two minor children, C.Z. and M.Z., ordering defendant to undergo drug testing and psychological testing; and ordering defendant and his wife to participate in various counseling and parent training.
The order further granted physical custody of M.Z. to defendant's
father, who was to reside in defendant's home. Defendant and his
wife, however, were ordered to reside with defendant's mother-in-law, and were to have no unsupervised contact with M.Z. Physical
custody of C.Z. remained with DYFS, as she was hospitalized at
the time.
Concerned about the parents' denial of any problems or of
responsibility for C.Z.'s injuries, and because of the imminent
release of C.Z. from the hospital and the concerns of placing her
with either her grandfather or a foster family, the DYFS worker
who had been assigned the case after DYFS took custody of the
children held a conference on the case. The conference was
attended by the worker's supervisor, the District Office Manager,
a Case Office Worker, the Litigation Specialist (a liaison
between the Attorney General and DYFS), and a Deputy Attorney
General. Due to new information, a statement made by defendant's
wife that defendant had admitted to her that he shook the baby,
it was decided that the worker should investigate further.
Prior to contacting the defendant, the worker called the
Prosecutor's office to inform them of her intention to
investigate the defendant so as not to impede any ongoing
investigation that the prosecutor's office may have had going on.
She spoke with an investigator who told her that "[b]ecause
[defendant] has a lawyer, they cannot interview him, but said
that there is no obstacle to the Division [DYFS] interviewing
him, and asked that I call [the assigned investigator] with my findings."
On that same day, April 5, 1994, at about 2 pm, two DYFS
workers went to defendant's home on an unannounced visit. The
two DYFS workers were greeted by defendant's father and allowed
into the home. It was explained to the defendant that as a
result of the information made known by defendant's wife, they
were there to ask defendant about the statement. Defendant
indicated that he had spoken to his lawyer and that he should not
speak. The DYFS worker testified that she "encouraged" defendant
to speak with her because she was there to finish the Division's
investigation regarding the matter of C.Z.'s injuries, to deal
with the "crisis" at hand -- C.Z.'s imminent discharge and where
she would be going, and to address new concerns over M.Z.'s
safety as a result of the new information.
According to the worker, defendant became quiet, withdrawn,
and then began to talk to her about the situation. He became
very upset, very tearful, and admitted that he had caused the
injuries by shaking C.Z. about 2 or 3 times. Defendant told her
that he did not think it was that hard, and that he felt bad
about it and deserved to be punished.
Defendant testified that when he made those statements, the
foremost thing on his mind was getting his children back and that
someone had advised him that things would move a lot faster and,
they would get the children back if one of them would confess,
whether or not they had inflicted the injuries. He testified
that he attached no legal consequences to the statements other
than in the context of getting his children back. Defendant
testified that he felt compelled to give DYFS a statement -
"[I]f I didn't say anything, then the kids wouldn't come home."
Defendant recalled telling the worker that he felt relieved over
telling her, because he thought that this would mean his children
were coming home. On September 28, 1994, defendant was indicted
by an Ocean County grand jury, for two crimes of the second
degree: endangering the welfare of a child (N.J.S.A. 2C:24-4a),
and aggravated assault (N.J.S.A. 2C:12-1b(1)).
The State argues on appeal that: 1) the trial court
erroneously applied the Sixth Amendment because the defendant's
right to counsel had not applied at the time of the confession,
and 2) the trial court erred in holding that the DYFS workers
were acting in a law enforcement capacity.
The purpose of a Title Nine action is to provide for the
protection of children under eighteen who have had serious injury
inflicted upon them by other than accidental means, and to assure
that innocent children are immediately safeguarded from further
injury and possible death, and that their legal rights are
protected. See N.J.S.A. 9:6-8.8. It is with these purposes in
mind that we must approach the present case and the difficult
issues it presents.
The Sixth Amendment of the United States Constitution
provides that "In all criminal prosecutions, the accused shall
enjoy the right to ... have the Assistance of Counsel for his
defence." U.S. Const. Amend. VI. New Jersey's analogous
constitutional provision Article I, paragraph 10 also provides
that "In all criminal prosecutions the accused shall have the
right to ... have the assistance of counsel in his defense." The
Sixth Amendment safeguards the "fundamental rights of life and
liberty" and ensures proper representation of an accused at
trial. State v. Sanchez,
129 N.J. 261, 265 (1991) (quoting
Johnson v. Zerbst,
304 U.S. 458, 462,
58 S. Ct. 1019, 1022, 82 L.
Ed. 1461, 1465 (1938)). The right extends further, however, to
include pretrial stages, at points of time at or after the
initiation of "adversary judicial criminal proceedings -- whether
by way of formal charge, preliminary hearing, indictment,
information, or arraignment." Kirby v. Illinois,
406 U.S. 682,
689,
92 S. Ct. 1877, 1882,
32 L. Ed.2d 411, 417 (1972). In
fact, "to deprive a person of counsel during the period prior to
trial may be more damaging than denial of counsel during the
trial itself." Maine v. Moulton,
474 U.S. 159, 170,
106 S. Ct. 477, 484,
88 L. Ed.2d 481, 492 (1985). The Court in Michigan v.
Jackson,
475 U.S. 625, 632,
106 S. Ct. 1404, 1409,
89 L. Ed.2d 631, 639-40 (1986), stated that:
After "a formal accusation has been made -
and a person who had previously been just a
`suspect' has become an `accused' within the
meaning of the Sixth Amendment -- the
constitutional right to the assistance of
counsel is of such importance that the police
may no longer employ techniques for eliciting
information from an uncounseled defendant
that might have been entirely proper at an
earlier stage of their investigation.
New Jersey has traditionally accorded greater protection of
the right to counsel than the United States. State v. Sanchez,
supra, at 274-76.
[When the] spotlight is on the accused[,]
[u]nder those circumstances, the perfunctory
recitation of the right to counsel and to
remain silent may not provide the defendant
with sufficient information to make a knowing
and intelligent waiver. ... Such a recitation
does not tell the defendant the nature of the
charges, the dangers of self-representation,
or the steps counsel might take to protect
the defendant's interest. ... Given the
adversarial nature of their relationship, for
the State's representatives to communicate
adequately that information to an indicted
defendant would be difficult, nigh to
impossible.
[Id. at 276-77.]
However, in State v. Tucker,
137 N.J. 259, 290 (1994), our
Supreme Court declined to extend Sanchez to a first court
appearance, prior to indictment.
Thus, the State urges that we reverse the order suppressing
the statements made by defendant to the DYFS investigator as
Tucker, supra, holds that a defendant's right to counsel attaches
upon the return of an indictment, unless invoked at a first
appearance. The State points out that Kirby, supra, requires
that adverse "criminal" proceedings be instituted in order for
the right to counsel to attach, and that because the proceedings
in the Title Nine action were civil, defendant did not have that
right at the time he gave the confession.
The State further argues that even though defendant had an
attorney in the Title Nine action, the right to counsel did not
attach in the criminal matter. To support this proposition, the
State relies upon several federal cases which hold that
interrogation on a crime unrelated to the charged offense is not
a violation of the right to counsel even where the police are
aware of the presence of an attorney for the charged offense.
See, e.g., United States v. DeVillo,
983 F.2d 1185 (2nd Cir.
1985); United States v. Ryans,
903 F.2d 731 (10th Cir. 1990).
We reject the State's position on this issue. The Title
Nine case, although a civil matter, had very serious personal
consequences to all parties involved, including the defendant.
In addition, there was at least some coercive element in the
environment of the situation confronting defendant. At the time
of interrogation, the Title Nine action had already been
instituted and counsel had been appointed for and represented
defendant in that action. The State was defendant's adversary in
that action, as well as during the time when the statement in
question was taken.
Title Nine, Section Eight establishes the jurisdictions of
the Family Part and the Criminal Part. In all matters having to
do with the noncriminal aspects of a matter, the Family Part has
original jurisdiction. N.J.S.A. 9:6-8.24. The statute directs
that the Family Part shall, immediately upon receipt of a
complaint, forward a copy of the complaint to the county
prosecutor, after which the prosecutor shall take whatever action
he or she deems necessary under all of the circumstances.
N.J.S.A. 9:6-8.25(a). Likewise, the Prosecutor's Office is to
turn cases it originates over to the Family Court, and all
criminal complaints amounting to child abuse must be reported to
DYFS by the police or prosecutor. N.J.S.A. 9:6-8.25(b). Once a
complaint is filed, DYFS must inform the prosecutor of suspected
child abuse. N.J.S.A. 9:6-8.36a. Thus, parallel civil and
criminal systems are both operating against a defendant at the
inception of proceedings in either court.
It is significant that under Title Nine, upon suspicion and
prior to the filing of a complaint in the Family Part, DYFS is
authorized to investigate situations and schedule preliminary
conferences with complainants and potential respondents, N.J.S.A.
9:6-8.35. However, Title Nine precludes any statements made
during the course of such preliminary conference from being used
against a defendant in a criminal proceeding at any time prior to
sentencing. N.J.S.A. 9:6-8.36.
No statement made by the potential respondent
during a preliminary conference held pursuant
to section 15 hereof may be admitted into
evidence at a fact-finding hearing under this
act or in a court of criminal jurisdiction at
any time prior to conviction.
[Ibid.]
We believe that the Legislature recognized the fundamental
injustice that might result from the use of self-incriminatory
statements made to DYFS agents where criminal consequences are
likely, as well as that the purposes of Title Nine are furthered
by the protection provided under N.J.S.A. 9:6-8.36. Therefore,
despite the fact that many Title Nine actions are filed before
any adverse criminal judicial proceedings have begun, the
Legislature saw fit to preclude statements made to DYFS
investigators from later being used in criminal proceedings. As
we indicated, the clear purpose of the Title Nine proceeding of
protecting the abused child is a prime consideration. DYFS
investigations will undoubtedly be more productive in revealing
potential dangers to children, thereby permitting remedial
action, if the fear of having one's own statement used in a
criminal prosecution is abated. Cf. People v. Smith,
465 N.E.2d 336 (N.Y. 1984). We perceive that in such a climate, DYFS
workers will be better able to pursue their own legitimate
investigation aimed at protecting the child. If the statements
they receive are not admissible in a criminal prosecution, they
need not jeopardize their own investigation out of concern for
the suspect's rights by giving Miranda warnings or honoring a
prospective defendant's right to counsel. See partial dissent,
State v. Helewa,
223 N.J. Super. 40, 54 (App. Div. 1988); cf. see
State v. Flower,
224 N.J. Super. 90 (App. Div. 1988).
In Helewa, supra, we held that the "close working
relationship between DYFS and the law enforcement agencies in
cases of child abuse" "changes the status of the social worker to
one of a law enforcement officer" in the context of Miranda.
Helewa, supra, 223 N.J. Super. at 47-48. We now hold that based
on fundamental fairness and to further the Title Nine objective
of child protection by promoting disclosures and admissions of
abuse at the earliest possible time, statements to DYFS during
the pendency of the Title Nine investigation may not be used
against a party in a criminal action unless there is advice of
Miranda rights and the affording of the Sixth Amendment right to
counsel.
Although there is a paucity of caselaw to support our
present holding, in State v. Clark,
58 N.J. 72 (1971), our
Supreme Court in analogous circumstances held that statements
made to welfare agents in a bastardy proceeding by the mother of
two out-of-wedlock children could not be used against her in a
fornication prosecution. 58 N.J. at 72. The woman was
instructed by the local welfare department to bring a "bastardy"
action against the father. In so doing, both she and the father
admitted to a number of instances of sexual intercourse. Ibid.
They were not warned that charges could be brought against them
based upon their unwed sexual relations, which were prohibited by
the criminal law. Id. at 80.
Although adverse "criminal" proceedings had not been
instituted and the mother and father were not in custody, our
Supreme Court held that the statements made were not admissible
in the criminal trial for fornication because of "Fifth Amendment
implications involved, in association with strong considerations
of public policy." Id. at 83. The Court also stated:
[I]f the information she gives (as well as
that of the unwarned putative father who
acknowledges paternity during the
investigation or at the trial of the bastardy
case) may be later used as a basis for
indictment for fornication against her or
both of them, what may be expected as the
probable result? The strong probability is
that such criminal prosecution will have a
"chilling" effect on applications for aid for
impoverished out of wedlock children. The
likelihood is that mothers will forego such
relief rather than incur the risk of a
criminal trial, conviction and possible
imprisonment of herself and her paramour.
[Id. at 87.]
In fact, although there was a direct benefit to be lost by
not cooperating with the welfare agency, the Court noted that
since the charges had been filed against these defendants, the
prosecutor admitted that "there had been a falling off in the
number of applications by mothers of illegitimate children for
relief." Ibid.
If the threat of criminal prosecution results
in the mother withholding her plea for
welfare aid, who are the sufferers?
Obviously the innocent children who are
punished for the moral laxity of their
parents. Thus society forces a continuance
of their impoverishment upon them in order to
make possible imposition of criminal
sanctions upon their erring mothers and
fathers.
[Ibid.]
So too are we convinced that the threat of criminal prosecution
will result in parents not cooperating with DYFS investigations,
and therefore, fewer children receiving the protection that Title
Nine demands, and possibly being forced to continue suffering in
an abusive environment.
In this case, although defendant was not in a custodial
situation and no adverse judicial criminal proceedings had begun,
we are convinced that given the unique circumstances defendant
was placed in, his statements must be prohibited from use in the
subsequent criminal trial.
Affirmed.