(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued February 15, 1994 -- Decided August 8, 1994
STEIN, J., writing for a unanimous Court.
On November 23, 1987, Patricia Warner was strangled, asphyxiated, and stabbed in her apartment in
Trenton. Her body was removed from the scene. When Ms. Warner's parents visited the apartment on
November 24, they discovered blood on the wall and in the bathtub. The apartment had been ransacked.
The police arrested Stanley Lee Tucker on Friday, November 27. Over the weekend, the police
questioned Tucker several times. Prior to each questioning session, Tucker was advised of his Miranda rights.
On Saturday, November 28, Tucker directed the police to Ms. Warner's body, by a bridge in Hopewell. On
Sunday, November 29, questioning continued. On Monday, November 30, Tucker confessed to having stolen
certain items from Ms. Warner's apartment. Later that day, Tucker was brought before a municipal court judge
for his initial appearance on a complaint charging him with burglary and robbery. Tucker did not have an
attorney at that hearing.
On December 1, the police returned to Tucker's apartment with a search warrant. They met Tucker's
cousin, Jeffrey Tucker, there. The police questioned Jeffrey with his mother present. He related that Tucker
had killed Ms. Warner and that he had helped Tucker steal several items from her apartment and, further, that
he had helped Tucker take Ms. Warner's body to the creek in Hopewell.
On December 2, 1987, Tucker was again given his Miranda rights. He was then informed of Jeffrey's
statement. Tucker confessed that he had cut the victim but that he did so after she had attacked him with a
knife.
At trial, Jeffrey's statement and those of Tucker were introduced as evidence. Jeffrey gave detailed
testimony. Tucker testified. To some extent, his testimony reflected his December 2, 1987, statement. He
claimed that he did not intend to kill Ms. Warner and that he did so only accidentally.
The jury found Tucker guilty of murder, burglary, theft, and possession of a weapon. Tucker received
a life sentence, with a thirty-year parole-ineligibility term on the murder and a consecutive five-year term on the
burglary with a thirty-month parole-ineligibility term. Tucker appealed, and the Appellate Division affirmed his
conviction and sentence. The Court granted Tucker's petition for certification.
HELD: Under the facts and circumstances of this case, the seventy-two-hour delay in holding defendant's first
court appearance did not require the suppression of defendant's statements. In addition, because defendant did
not request counsel at his first court appearance, his subsequent confession was admissible against him at trial.
Also, the Court directs its Criminal Practice Committee to review and recommend amendments to the "first-appearance" Rule of Court.
1. Although the United States Supreme Court decision in County of Riverside v. McLaughlin, which requires
a probable-cause determination by a judicial officer within 48 hours of an arrest, applied to this case retroactively,
there was abundant evidence to support the conclusion that the delay in Tucker's probable-cause hearing had
little or no impact on the voluntariness of his statements. (pp. 9-16)
2. In Michigan v. Jackson, the United States Supreme Court held that the Sixth Amendment right to counsel
attached at arraignment, the initiation of legal proceedings against a defendant. (pp. 16-19)
3. The State contends that the Sixth Amendment is "offense-specific." The Court concludes that if the offense
under investigation is based on essentially the same factual context as the charged offense, assertion of the Sixth
Amendment right to counsel on the charged offense should bar questioning on the related offense. (pp. 19-23)
4. On close analysis of the record presented to the Court, as supplemented by the Court's taking judicial notice
of existing municipal court practices, the Court concludes that Tucker did not request counsel at his first
appearance on November 30, 1987. The admissibility of his December 2, 1987, confession is not barred by
Michigan v. Jackson. (pp. 23-33)
5. The Court refers the question of "first-appearance" practices to the Criminal Practice Committee for
expedited review. The Court wishes to eliminate procedural disparities between municipal courts and the Central
Judicial Processing Courts that exist in several counties. (pp. 30-32)
6. In State v. Sanchez, this Court held that after a defendant is indicted, giving Miranda warnings is not enough
to elicit a knowing and voluntary waiver of the right to counsel under the State Constitution. Tucker argues that
the Sanchez rule should be extended to apply to a defendant's first appearance. The Court concludes that the
protections afforded defendants under Michigan v. Jackson are sufficient and declines to extend Sanchez. (pp.
33-40)
7. Tucker's contention that the trial court should have charged the jury on aggravated and reckless manslaughter
as a lesser-included offense is meritless under the evidence presented to the jury. (pp. 42-44)
8. The record on remand to the trial court adequately supports the conclusion that Tucker was not denied
effective assistance of counsel in respect of the investigation of Tucker's mental condition. (pp. 44-47)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN, and
GARIBALDI join in JUSTICE STEIN's opinion.
SUPREME COURT OF NEW JERSEY
A-
94 September Term 1993
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STANLEY LEE TUCKER,
Defendant-Appellant.
Argued February 15, 1994 -- Decided August 8, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
265 N.J. Super. 296 (1993).
Claudia Van Wyk, Deputy Public Defender II,
argued the cause for appellant (Susan L.
Reisner, Acting Public Defender, attorney).
Larry R. Etzweiler, Deputy Attorney General,
argued the cause for respondent (Deborah T.
Poritz, Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
STEIN, J.
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 "[r]etained" 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
clot[h] 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 "[v]ery 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 "[s]ome 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,
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, cert. denied,
395 U.S. 970,
89 S. Ct. 2122,
23 L. Ed.2d 759 (1969); State v.
Seefeldt,
51 N.J. 472, 486 (1968); State v. Taylor,
46 N.J. 316,
328, 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 (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 (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 (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 (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 "[t]he 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 probable cause been decided
by a judicial officer within 48 hours of his
arrest.
Consistent with the Appellate Division's conclusion, we note that if a probable-cause hearing had been afforded Tucker within forty-eight hours of his detention, the prosecution could have
produced evidence demonstrating that defendant had been observed
parking the victim's car on a Trenton street after the victim had
been reported as missing. In addition, the State could have
offered evidence obtained from execution of a search warrant at
defendant's home, including two cable converter boxes (one of
which was later determined to have been delivered by Comcast
Cablevision to the victim's home), and articles of defendant's
clothing containing bloodstains. Moreover, within forty-eight
hours of his detention defendant had admitted that he was present
in the victim's home with Erk Drury, that the victim had been
injured, that he had seen blood on her face, and that he had
assisted Drury in carrying the victim downstairs from her
apartment and placing her into the front passenger seat of her
automobile. Finally, defendant had also directed police to the
location at which the victim's body had been discarded. We have
no doubt that well in advance of the forty-eight-hour guideline
for probable-cause determinations established by McLaughlin
police officers had acquired evidence sufficient to establish
probable cause to charge defendant with serious criminal
offenses.
Because the requirement of a prompt probable-cause hearing
is intended to prevent unlawful detention, our finding that
abundant evidence existed to justify defendant's detention
strongly supports the conclusion that the delay had little or no
impact on the voluntariness of defendant's statements. See also
United States v. Perez-Bustamante,
963 F.2d 48, 53 (5th Cir.
1992) (holding, post-McLaughlin, that incriminating statements
made during non-coercive interrogation sixty hours after arrest
and two days prior to first appearance before magistrate were
voluntary and admissible).
The Appellate Division determined that none of defendant's
statements should be suppressed because of the delay in
defendant's initial court appearance:
Measured against these standards, we are
thoroughly convinced that the delay in
affording defendant a probable cause
determination did not taint his confessions.
As we noted previously, the trial court found
that all of defendant's statements were
voluntary and the product of his free will.
In terms of the Fifth Amendment's
voluntariness standard, it is abundantly
plain that the failure to provide a probable
cause determination had no impact on
defendant's state of mind.
We agree with that conclusion and accordingly reject defendant's
contention that some of or all his statements should be
suppressed on the basis of McLaughlin's retroactive application
to this appeal.
Defendant contends that because the State did not sustain the burden of proving that he waived his Sixth Amendment right to counsel, which attached on November 30, 1989, at his first court
appearance on the robbery and burglary complaint, his subsequent
"waiver" of his right to counsel during police-initiated
interrogation on December 2, 1987, was invalid, and the trial
court should have suppressed his resultant confession to the
homicide pursuant to the United States Supreme Court's holding in
Michigan v. Jackson,
475 U.S. 625, 627,
106 S. Ct. 1404, 1407,
89 L. Ed.2d 631, 638 (1986).
In Jackson, decided approximately eighteen months prior to
Tucker's arrest, the Supreme Court observed that the Michigan
arraignment in that case represented the initiation of formal
legal proceedings against the defendants and therefore
constituted the point at which the Sixth Amendment right to
counsel attached. Id. at 629-30, 106 S. Ct. at 1407, 89
L. Ed.
2d at 638; see also Brewer v. Williams,
430 U.S. 387, 398,
97 S. Ct. 1232, 1239,
51 L. Ed.2d 424, 436 (1977) (plurality
opinion) ("[A] person is entitled to the help of a lawyer at or
after the time that judicial proceedings have been initiated
against him -- 'whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment.'") (quoting
Kirby v. Illinois,
406 U.S. 682, 689,
92 S. Ct. 1877, 1882,
32 L. Ed.2d 411, 417 (1972))). Defendants Bladel and Jackson had
both requested appointment of counsel at their arraignments, in
the presence of police officers involved in the respective
investigations. (The Appellate Division noted that the Michigan
"arraignment" referred to in Jackson is essentially equivalent to
a New Jersey defendant's first appearance, see Rule 3:4-2. 265
N.J. Super. at 320 n.3.) After the arraignments, the police
officers in each case initiated further interrogation, preceded
by Miranda warnings and defendants' agreement to respond without
counsel, and both defendants gave incriminating statements.
Affirming the Michigan Supreme Court's decision that the
post-arraignment statements should be suppressed, the United
States Supreme Court rejected the State's contention that the
defendants validly had waived their Sixth Amendment rights by
making post-arraignment incriminatory statements after again
being advised of their constitutional rights. Jackson, supra,
475 U.S. at 629-35, 106 S. Ct. at 1407-11, 89 L. Ed.
2d at 638-42. The Court relied on Edwards v. Arizona,
451 U.S. 477,
101 S. Ct. 1880,
68 L. Ed.2d 378 (1981), a Fifth Amendment case, in
which it had held that an accused person in custody who has
"expressed his desire to deal with the police only through
counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him, unless
the accused himself initiates further communication, exchanges,
or conversations with the police." Id. at 484-85, 101 S. Ct. at
1885, 68 L. Ed.
2d at 386. The Court in Jackson stated:
Just as written waivers are insufficient to
justify police-initiated interrogations after
the request for counsel in a Fifth Amendment
analysis, so too they are insufficient to
justify police-initiated interrogations after
the request for counsel in a Sixth Amendment
analysis.
* * * *
[is] a significant event," 451 U.S. at 485,
68 L. Ed.2d 378,
101 S. Ct. 1880, and that
"additional safeguards are necessary when the
accused asks for counsel." Id. at 484,
68 L. Ed.2d 378,
101 S. Ct. 1880. We conclude
that the assertion is no less significant,
and the need for additional safeguards no
less clear, when the request for counsel is
made at an arraignment and when the basis for
the claim is the Sixth Amendment. We thus
hold that, if police initiate interrogation
after a defendant's assertion, at an
arraignment or similar proceeding, of his
right to counsel, any waiver of the
defendant's right to counsel for that police-initiated interrogation is invalid.
[475 U.S. at 635-36, 106 S. Ct. at 1410-11,
89 L. Ed.
2d at 642 (alteration in
original) (footnote omitted).]
Related to the issue of Michigan v. Jackson's application to defendant's December 2, 1987, confession to the homicide is the State's argument that the Sixth Amendment is "offense-specific," McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 2207, 115 L. Ed.2d 158, 166 (1991), and therefore the validity of police interrogation of defendant concerning the murder should not be affected by what occurred two days earlier at defendant's court appearance on robbery and burglary charges. As the trial record reveals, the police investigation uncovered critical evidence between defendant's first court appearance on November 30, 1987, and his interrogation two days later. After the weekend events, during which defendant had led police to the victim's body while maintaining that her friend Erk Drury was
responsible for the murder, the police investigators were
obviously uncertain whom to charge with the homicide. Lieutenant
Stankard, who led the investigation, testified that on Tuesday,
December 1, 1987, he had returned to defendant's house with a
second search warrant to look for, among other things, a piece of
paper with Drury's phone number in Georgia that defendant said
Drury had given him. While at the house he spoke with Jeffrey
Tucker, defendant's nephew, who spoke with police at length and
provided the first direct evidence of defendant's responsibility
for the homicide. Jeffrey's statement prompted the police to
question defendant again on December 2, 1987. Thus, the State
argues against any rule that would insulate a defendant,
following an initial court appearance on a charged offense, from
police-initiated interrogation on a different offense.
In McNeil, supra, police arrested defendant for armed
robbery, and at his first court appearance the court assigned an
attorney to represent him. 501 U.S. at 173, 111 S. Ct. at 2206,
115 L. Ed.
2d at 165. Later, police questioned defendant, still
in custody, about an unrelated homicide, after first informing
defendant of his Miranda rights. Ibid. After waiving his
rights, defendant confessed to the homicide and subsequently was
tried and convicted of murder. 501 U.S. at 174, 111 S. Ct. at
2206-07, 115 L. Ed.
2d at 165-66. Distinguishing Michigan v.
Jackson, the Supreme Court held that the defendant's assertion of
his right to counsel during his court appearance on the robbery
complaint did not preclude police-initiated interrogation
concerning a totally unrelated homicide. 501 U.S. at 175-76, 111
S. Ct. at 2207-08, 115 L. Ed.
2d at 166-67. The Court observed
that "[t]he Sixth Amendment right * * * is offense specific" and
"cannot be invoked once for all future prosecutions * * * ."
Id. at 175, 111 S. Ct. at 2207, 115 L. Ed.
2d at 166.
However, other federal and state cases, some of which were
decided after McNeil, recognize that the Sixth Amendment right to
counsel for a charged offense cannot be separated from another
offense that is "inextricably intertwined" or "extremely closely
related" to the charged offense. Cf. United States v. Kidd,
12 F.3d 30, 33 (4th Cir. 1993) ("In order to fall within this
[related-offense] exception, the offense being investigated must
derive from the same factual predicate as the charged offense.");
United States v. Carpenter,
963 F.2d 736, 740 (5th Cir. 1992)
("When the offenses are so closely related, the protections
afforded by the Sixth Amendment * * * will extend even to those
offenses with respect to which the government has not yet
initiated formal charges."); United States v. Hines,
963 F.2d 1-
255, 257 (9th Cir. 1992) ("An exception to the offense-specific
requirement of the Sixth Amendment occurs when the pending charge
is so inextricably intertwined with the charge under
investigation * * * ."); United States v. Cooper,
949 F.2d 737,
743-44 (5th Cir. 1991) (same); People v. Clankie,
530 N.E.2d 448,
452-53 (Ill. 1988) (asserting that Sixth Amendment rights of one
formally charged with offense extend to offenses closely related
and for which one is subsequently formally accused); State v.
Sparklin,
672 P.2d 1182, 1190 (Or. 1983) (holding, pre-Jackson,
that defendant who requested counsel at arraignment on charges of
using stolen credit card could not be interrogated by police
after Miranda warnings concerning related assault on credit-card
owner, although statements elicited concerning unrelated homicide
charge were admissible); In re Pack,
616 A.2d 1006, 1010-11 (Pa.
Super. Ct. 1992) (relying on Pennsylvania Supreme Court's
interpretation of Sixth Amendment right to counsel as applying to
all offenses arising from same incident for which defendant is
charged); Upton v. State,
853 S.W.2d 548, 555-56 (Tex. Crim. App.
1993) (holding McNeil inapplicable and barring admissibility of
statements incriminating defendant of murder elicited by police
after defendant was arraigned and obtained counsel on theft
charges that State used to prove aggravating factor in capital
murder prosecution); see also State v. Porter,
210 N.J. Super. 383, 393 (App. Div. 1986) (holding admissible incriminating
statement concerning unrelated uncharged offense during police-initiated interrogation after Miranda warnings although defendant
had been assigned counsel on charged offense).
Our view of the scope of the Sixth Amendment protection is
consistent with the post-McNeil decisional law. If the offense
under investigation is based on essentially the same factual
context as the charged offense, assertion of the Sixth Amendment
right to counsel on the charged offense should bar police-initiated interrogation on the related offense. Thus, if
defendant were protected by the holding in Jackson on the basis
of what transpired at his initial court appearance on the
burglary and robbery charges, statements obtained by police two
days later concerning the homicide -- which had essentially the
same factual predicate as the burglary and robbery charges and
was inextricably related to those charges -- would be
inadmissible.
To assess and explain adequately whether Jackson affects the admissibility of defendant's December 2, 1987, confession, however, we must supplement the procedural history and provide a broader context for the discussion that follows. Initially, we note that defense counsel did not contend at the Miranda hearing or at trial that defendant's December 2, 1987, confession to the homicide was inadmissible under Michigan v. Jackson because defendant had requested counsel at his court appearance two days earlier. The Assistant Prosecutor, however, referring to the information concerning defense counsel on the complaint forms that charged defendant with burglary and robbery, and subsequently with murder, argued that defendant had not requested counsel at either his first or second court appearances and had voluntarily waived his constitutional rights. In sustaining the admissibility of defendant's statements at the conclusion of the Miranda hearing, the trial court made an oblique reference to Michigan v. Jackson:
Now, I have also considered all of the documents that have been marked in evidence,
both by the State and by the defense. I have
reviewed them and find them to be consistent
with the testimony, and I have also referred
carefully to the cases of State [v.] Porter,
210 N.J. Super. 383 (App. Div. 1986), and
State of Michigan, petitioner against Robert
Bernard Jackson and Michigan, petitioner,
against Rudy Lidell. That case really is
Michigan [v.] Jackson, 106 S. Ct. [1404].
I have reviewed the requirements of the
United States Supreme Court concerning any
issues that might arise concerning a
situation such as I have been listening to
for the last several days, and the state
requirements as contained in Porter, and find
that they do not raise any red flags or any
problems as far as the facts of this
particular case are concerned.
Defendant's Appellate Division brief first raised the Michigan v. Jackson issue, asserting that at defendant's initial court appearance on November 30, 1987, defendant "already had retained counsel on unrelated drug charges" and "evidently told the municipal judge so when she asked him if he wanted an attorney on the new charges." Defense counsel apparently based that contention on the notations recorded on the bottom of the complaint form charging defendant with burglary and robbery. The State vigorously contests defendant's interpretation of those notations. (We have attached the robbery and burglary complaint form as an Exhibit to our opinion so that the basis for the disagreement can be better understood.) Unfortunately, when defense counsel in January 1991 first requested a transcript of the November 30, 1987, hearing in Trenton Municipal Court, the court clerk informed counsel that the tape had been destroyed
because our Court Rules require that such sound recordings be
retained for only three years. See R. 7:4-5(a).
Minimal evidence in the record relates to what might have
transpired at defendant's November 30, 1987, court appearance.
At the close of the Miranda hearing, defense counsel Rhoads
endeavored to explain to the trial court his brief prior
relationship with defendant, informing the court that defendant,
in connection with a narcotics charge filed against him earlier
in 1987, had paid Rhoads a fraction of his initial retainer and
had been unable to make any further payment. Rhoads recalled
that he "may have suggested [defendant] go to the [Public
Defender]'s office, and he did." Rhoads specifically stated that
on November 30, 1987, when defendant first appeared in Municipal
Court on the burglary and robbery charges, he was not
representing defendant on the narcotics charge. Rhoads offered
in evidence at the Miranda hearing a letter he had written on
December 4, 1987, to the Public Defender's Office, enclosing a
substitution-of-attorney form for the narcotics case and setting
forth the background of his relationship with Tucker. He
explained to the court that he had written the letter because an
Assistant Prosecutor had informed him that during Tucker's
initial court appearance on the murder charge on December 2,
1987, Tucker apparently had stated to the court that Rhoads
represented him on the narcotics charge.
In addition, an investigator from the Mercer County Public
Defender's office testified at the Miranda hearing that he had
visited defendant on December 2, 1987, at the Mercer County
Detention Center to conduct an initial interview; that sometime
earlier that day Tucker had requested representation from the
Public Defender's Office; and that the file contained no request
for representation dated earlier than December 2, 1987.
No other testimony at the Miranda hearing bears on the
events that transpired at defendant's November 30, 1987, court
appearance, except that we note the testimony of the
investigating Trenton police officers that they had not attended
that hearing nor had they been informed of what had occurred.
Thus, to establish whether defendant requested an attorney on
November 30, 1987, both counsel rely primarily on the notations
at the bottom of the face of the burglary/robbery complaint under
the heading "Prosecuting Attorney and Defense Counsel
Information." We note that adjacent to the heading "Defense
Counsel" five rectangular boxes appear with the headings "None,"
"Retained," "Public Defender," "Assigned," and "Other." On the
complaint form, a "loop" beginning and ending in the box entitled
"None" circles the word "Retained" in the adjacent box. Defense
counsel argues that "[t]he record of arraignment indicates that
counsel is 'Retained' and contains no indication of waiver."
Before the Appellate Division the State conceded that the "loop"
around the word "Retained" signified an intention by the court
official who filled out the form to check the box marked
"Retained." The Appellate Division agreed, but was unwilling to
regard the notation on the complaint form as an adequate
indication that defendant had asserted his Sixth Amendment right
to counsel:
Defendant's argument that he invoked his
right to counsel is predicated solely on
demarcations on the face of the complaint.
In the portion dealing with "[d]efense
counsel information," the box marked
"retained" is circled. We view this scant
reference to counsel as too slim a reed upon
which to rest defendant's present assertion
that he requested the assistance of an
attorney. The best that can be said is that
after the municipal court judge advised
defendant of his right to counsel, Tucker
declined the appointment of an attorney on
the basis that he had hired a lawyer to
represent him some eight months earlier on
unrelated drug charges. It is undisputed
that defendant made no effort to contact Mr.
Rhoads or to procure the services of another
lawyer. Only after defendant was formally
charged with murder did he seek the
assistance of a public defender attorney.
Mr. Rhoads' prior representation of defendant
on the drug charges clearly did not extend to
the subsequent complaints charging Tucker
with burglary, robbery and murder. * * * .
We thus find no basis in the record for
defendant's claim that he invoked his right
to an attorney at the initial appearance.
[265 N.J. Super. at 327-28
(alteration in original).]
Before us, the State asserts that its argument before the Appellate Division was based on a misunderstanding of the notations on the complaint form, and it now contends that the unusual "loop" was intended to check the box entitled "None," and inadvertently circled the word "Retained." To support that argument, the State notes that adjacent to the heading "Prosecuting Attorney," a "loop" begins and ends in the box entitled "none," but encircles the word "State." The State
argues persuasively that the official making the notations
concerning "Prosecuting Attorney" must have intended to check
"None," observing that "[i]n Mercer County * * * the State was
almost always unrepresented at initial appearances in the
municipal court * * * [and] if the State had been represented[,
it] would have been by a County Prosecutor rather than by a State
deputy attorney general." By analogy, the State argues that just
as the clerk's "loop" intended to check "None" but inadvertently
circled "State" on the portion of the form concerning the
Prosecuting Attorney, so too the official that circled the word
"Retained" adjacent to Defense Counsel did so inadvertently, the
intent having been to check the box marked "None."
We agree with the State's contention, not so much because of
the mysterious trajectory of the loops but because we take
judicial notice, Evid. R. 201, of the generalized understanding
among municipal court clerks and judges -- an understanding we
have verified through the Administrative Office of the Courts -
that the boxes in question are checked only to indicate whether a
prosecuting attorney or defense counsel actually appeared in
court. Nothing in the record suggests, nor has it been argued,
that counsel representing defendant appeared at the November 30,
1987, court appearance, and we know of no basis not to accept the
Attorney General's representation that the State invariably was
unrepresented at such hearings. Accordingly, we are persuaded
that the notations on the complaint form should be understood to
indicate that neither the State nor defendant was represented by
counsel at the hearing, and those notations have no bearing on
whether defendant asserted his Sixth Amendment right to counsel.
Defendant's reliance on Michigan v. Jackson, however, does
not hinge entirely on whether defendant can demonstrate that he
asserted his Sixth Amendment right to counsel at his initial
court appearance on November 30, 1987. Defendant argues
alternatively, relying on Jackson, that "it is the State that has
the burden of establishing a valid waiver." Jackson, supra, 475
U.S. at 633, 106 S. Ct. at 1409, 89 L. Ed.
2d at 640. Defendant
reasons from that principle that even without proof that he
asserted his Sixth Amendment right to counsel at his initial
appearance, he remains entitled to the protections afforded by
Jackson unless the State can sustain the burden of proving a
knowing and voluntary waiver of the Sixth Amendment guarantee.
The State concedes that scant precedent exists on the issue
of burden of proof, but argues that the burden should be borne
generally by defendants who possess first-hand knowledge of
whether they specifically requested counsel during court
appearances. Typically, as in Jackson, supra, and McNeil, supra,
the issue is uncontested, no dispute existing concerning whether
the defendant specifically rejected counsel during a court
appearance. If our practice in New Jersey were relatively
uniform on this issue, with defendants almost invariably
requesting counsel when informed of Sixth Amendment rights during
their initial court appearance, see Rule 3:4-2, we would
undoubtedly find persuasive the argument in favor of a
presumption that counsel was requested, with the result that the
broad protection of Jackson would apply unless the State could
prove a knowing and voluntary waiver of the Sixth Amendment
right.
Our practice, however, is not uniform on the point. As is
suggested by Rule 3:4-2 and by the Bench Book for Municipal
Court, the practice in Municipal Courts at a defendant's first
appearance after the filing of a complaint is for the court to
inform the defendant of the right to retain counsel and, if
indigent, of the right to have counsel furnished without cost.
See David Schepps & Samuel Serata, Bench Book for Municipal Court
C-2-1 to C-2-3 (3d ed. 1986). Generally, defendants are not
requested to indicate affirmatively whether they desire to retain
counsel or to have counsel furnished. Although the Rule directs
the court to have indigent defendants complete forms requesting
appointment of counsel during their first appearance, the
customary practice is that defendants fill out such forms in the
county jail after their initial court appearance.
That practice contrasts sharply with the procedures used in
the Central Judicial Processing (CJP) courts now functioning in a
number of urban counties, in which Municipal Court first
appearances take place at a centralized court in the county
courthouses. Originally authorized on a trial basis in January
1981 by the Chief Justice, the CJP courts now function in Hudson,
Essex, Camden and Union counties, and provide a forum for
prosecutorial screening of cases and early case management. See
1986 Judicial Conference of New Jersey, Supreme Court Task Force
on Speedy Trial 1980-1986, at 17-18; Approved Standards for the
Operation of the New Jersey Criminal Division of Superior Court
Oct. 20, 1992, 3-4. In the CJP courts, forms requesting assigned
counsel generally are completed by defendants prior to their
initial court appearance, and at that court appearance counsel
from the public defender's office are generally available to
provide representation. In the CJP courts, as an essential pre-condition of effective case management, defendants are presumed
to have asserted their expectation to be represented by counsel,
and counsel are routinely provided.
In view of their significance to this appeal, we take
judicial notice of the specific facts concerning the general
practice at first court appearances following the filing of a
complaint both in Municipal Courts and CJP courts, Evid. R. 201,
and have independently verified their accuracy through the
Administrative Office of the Courts. One apparent consequence of
the difference in procedures is that defendants whose first
appearance occurs in CJP courts will gain the protection of the
holding of Michigan v. Jackson, their assertion of the right to
counsel at such hearings being readily verifiable and virtually
automatic. In contrast, defendants whose first appearance occurs
in Municipal Courts generally are not requested to indicate to
the court whether they intend to retain or request appointment of
counsel, with the result that police officers assigned to their
cases may assume that police-initiated interrogation preceded by
Miranda warnings remains constitutionally permissible.
We are persuaded that that disparity should cease. We will
request our Criminal Practice Committee to undertake an expedited
review of the procedures at first appearances to determine
whether Rule 3:4-2 should be revised to require all defendants,
after being informed of their Sixth Amendment rights, to state
whether they desire counsel. The Committee will also consider
the related question of providing adequate records documenting
such requests for counsel, as well as retention of sound
record