State v. Boyle

• Decision Date: 03 December 1984
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John BOYLE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 64

198 N.J.Super. 64

486 A.2d 852

STATE of New Jersey, Plaintiff-Respondent, v. John BOYLE, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Nov. 7, 1984.

Decided Dec. 3, 1984.

William E. Norris, Parsippany for defendant-appellant (Joseph H. Rodriguez, Public Defender, attorney; William E. Norris, Parsippany, of counsel).

Gilbert Miller, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney; Gilbert Miller, Deputy Atty. Gen., of counsel and on the letter-brief).

Before Judges MICHELS and BAIME.

The opinion of the court was delivered by

BAIME, J.A.D.

Following a jury trial, defendant was convicted of conspiracy to violate the Controlled Dangerous Substances Act. The trial court imposed a custodial term of three years and ordered defendant to pay a penalty of $25 to the Violent Crimes Compensation Board. On appeal, defendant contends that his inculpatory statement given to the Ocean County Prosecutor pursuant to a plea agreement which was subsequently abrogated was improperly admitted into evidence. Defendant argues that such a statement is per se involuntary and, therefore, must be suppressed. Defendant also contends that he was denied the effective assistance of counsel under the Sixth and Fourteenth Amendment. Our thorough review of the record convinces us that defendant's claim is wholly devoid of merit. Nevertheless, we are constrained to reverse defendant's conviction and remand for a new trial because of material deficiencies in the court's instructions to the jury. ¹

The facts essential to resolution of the issues presented here are not seriously disputed. In July, 1980, the Ocean County Prosecutor obtained a court authorized wiretap for defendant's home in Toms River. The affidavit submitted in support of the electronic surveillance application described a controlled purchase of narcotics from defendant by a police informant. The drug transaction was successfully completed through the use of defendant's telephone. The wiretap authorization permitted the authorities to eavesdrop upon "anyone or any conversation in connection with offenses of controlled dangerous substances." During the surveillance period, numerous conversations pertaining to illicit drug transactions were recorded. Among those implicated were defendant and several members of his family. As a result of the information obtained through the use of the wiretap, defendant was arrested on November 10, 1980 pursuant to a warrant.

On November 13, 1980, defendant's retained attorney, Henry Collins, was contacted by the Ocean County Prosecutor. Based upon their conversation, Mr. Collins agreed to meet the prosecutor at his office. Present at the meeting were the prosecutor, two investigators, defendant and Mr. Collins. After reviewing several of the tape recorded telephone conversations implicating defendant and members of his family, the parties discussed the possibility of a plea agreement.

Under the initial proposal, the prosecutor agreed to recommend imposition of an indeterminate custodial term. He also promised not to pursue charges against other members of defendant's family. In return, defendant was to identify the voices on the tape. There is some dispute with respect to whether defendant agreed to testify against other members of the conspiracy. Defendant's attorney and the prosecutor's investigator testified that defendant was advised of the possibility that he would be required to testify against his confederates. Defendant vehemently denied that this constituted part of the plea agreement. In any event, defendant and his attorney were permitted to discuss the proposal in private. This engendered further negotiations pertaining to the possibility of reducing bail. After these issues had been resolved, defendant agreed to listen to the tape and cooperate in identifying other members of the conspiracy. Over the next three days, defendant in the presence of his attorney, ² gave a detailed statement which was stenographically recorded. Subsequently, defendant refused to testify against others and entered a plea of not guilty.

Prior to trial, defendant sought to suppress his written statement. Specifically, defendant contended that he did not voluntarily waive his Fifth Amendment privilege and that his statement was obtained by way of coercion and intimidation. Significantly, defendant did not raise the argument presently advanced on appeal, i.e., that any statement made pursuant to a plea agreement which is subsequently abrogated must be suppressed. In any event, the trial judge found that defendant knowingly and intelligently waived his constitutional rights in the presence of his attorney. The court also concluded that the methods employed by the prosecutor and his investigators were not coercive and did not have the effect of overbearing defendant's will.

At trial, the State's evidence consisted primarily of the tape recorded telephone conversations interspersed with the investigator's testimony and defendant's statement. The record reflects that most of the telephone conversations were extremely guarded. Apparently, code language was often employed. In addition, many of the terms utilized in negotiating drug transactions were not of common parlance. Thus, defendant's statement was used to describe what was being discussed in the recorded telephone conversations.

Simply stated, it is abundantly clear that defendant's statement constituted a critical part of the State's case. The sole defense advanced at trial was that defendant's statement was coerced and involuntary. Nevertheless, the trial judge refused to instruct the jury that they were to decide whether defendant's confession was credible. See State v. Hampton, 61 N.J. 250, 272, 294 A.2d 23 (1972). Although defense counsel requested such an instruction, the trial court's charge is barren of any allusion to defendant's statement. The jury found defendant guilty of conspiring to possess controlled dangerous substances with the intent to distribute. This appeal followed.

I

We will first address defendant's contention that his statement was improperly admitted. Succinctly stated, defendant argues that any statement made pursuant to a plea agreement which is subsequently abrogated is per se involuntary, and, thus, inadmissible. In essence, defendant asks us to adopt the policy set forth in Fed.R.Crim.P. 11(e)(6) which precludes admission of "any statement made in the course of plea discussions" where the accused ultimately decides to contest his guilt and proceed to trial. The same principle appears in Fed.R.Evid. 410 which renders inadmissible "any statement made in the course of plea discussions with an attorney for the prosecuting authority...." ³ See also ALI Model Code of Pre-Arraignment Procedure § 350.7 (Proposed Official Draft, 1975); ABA Standards Relating To Pleas of Guilty § 3.4 (Approved Draft, 1968). The federal practice is premised upon the theory that for "plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him." United States v. Herman, 544 F.2d 791, 796 (5th Cir.1977). See also United States v. Grant, 622 F.2d 308, 312-313 (8th Cir.1980); United States v. Robertson, 582 F.2d 1356, 1365 (5th Cir.1978); United States v. Ross, 493 F.2d 771, 775 (5th Cir.1974). Suppressing evidence of such negotiations is said to "serve the policy of insuring a free dialogue" during the plea bargaining process. United States v. Robertson, supra at 1365. In considering the federal exclusionary rule, Congress suggested that absent such a shield the possibility of self-incrimination would "discourage defendants from being completely candid and open during plea negotiations...." H.R.Rep. No. 94-247, 94th Cong., 1st Sess. 7 (1975) U.S.Code Cong. & Adm.News, pp. 674, 679 (1975).

Although these policies have not been totally ignored in New Jersey, we have been much less inclined to grant broad immunity to defendants who participate in the plea negotiation process than our federal counterparts. In point of fact, the federal approach was considered and rejected when Evid.R. 52(2) was adopted. The Supreme Court's Committee on Evidence had initially proposed promulgation of a rule which totally precluded admission of a defendant's statements made during plea negotiations. Under the proposed rule, "[e]vidence that the defendant ... offered to plead guilty to a lesser offense, as well as any conduct or statements made in negotiations" would have been inadmissible. See The Report of the New Jersey Supreme Court Committee on Evidence (March 1963). Instead, a narrower approach was adopted. Thus, Evid.R. 52(2) presently provides that "[e]vidence that the defendant offered to plead guilty to a lesser offence or upon terms is inadmissible against him...." Read literally, the rule does no more than preclude admission of a defendant's offer to enter a plea agreement. It does not prohibit introduction of the accused's voluntary statements made during the plea negotiation process. As noted in the commentary to our Rules of Evidence, "Rule 52(2) refers only to plea offers, and not to admissions made during the course of bargaining between the State and the defendant." See New Jersey Rules of Evidence (Anno.1984), Comment 3 to Evid.R. 52. In light of this history, we perceive no valid basis to construe the rule in a manner more expansive than its literal wording.

Even were we to accept defendant's argument and adopt the federal rule, it is by no means clear that the statement would be inadmissible. The interpretative history of Fed.R.Crim.P. 11(e)(6) and Fed.R.Evid. 410 has been "checkered" and, as such, "difficulties are presented in any attempt at uniform application." United States v. Grant, supra at 312. See, e.g., United States v. Davis, 617 F.2d 677 (D.C.Cir.1979); United States v. Arroyo-Angulo, 580 F.2d 1137 (2d Cir.197...