State v. P.Z.

• Citation: 666 A.2d 1000,285 N.J.Super. 219
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. P.Z., Defendant-Respondent.
• Decision Date: 13 November 1995
• Court: New Jersey Superior Court – Appellate Division

Page 219

285 N.J.Super. 219

666 A.2d 1000

STATE of New Jersey, Plaintiff-Appellant, v. P.Z., Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 18, 1995.

Decided Nov. 13, 1995.

Marc E. Roessler, Assistant County Prosecutor, for appellant (Daniel J. Carluccio, Ocean County Prosecutor, attorney; Mr. Roessler, of counsel, and on the brief).

James Pinchak, Assistant Deputy Public Defender, for respondent (Susan L. Reisner, Public Defender, attorney; Mr. Pinchak, of counsel, and on the brief).

Before Judges SHEBELL, WALLACE and NEWMAN.

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, 609 A.2d 400 (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...