State v. Kennedy

• Decision Date: 20 July 1984
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Gerald KENNEDY, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 278

97 N.J. 278

478 A.2d 723

STATE of New Jersey, Plaintiff-Respondent, v. Gerald KENNEDY, Defendant-Appellant.

Supreme Court of New Jersey.

Argued March 6, 1984.

Decided July 20, 1984.

William Welaj, Somerville, Designated Counsel, argued the cause for defendant-appellant (Joseph H. Rodriguez, Public Defender, attorney).

Josephine R. Potuto, Asst. Prosecutor, argued the cause for plaintiff-respondent (George L. Schneider, Essex County Prosecutor, attorney).

The opinion of the Court was delivered by

HANDLER, J.

In this case defendant, while in custody awaiting sentencing on two robbery convictions, initiated dialogue with the authorities with respect to an unrelated homicide incident. Prior to questioning, defendant conferred with his attorney, who, arguably, did not place any limitations upon the ability of the defendant or the prosecutor to discuss the information defendant wished to impart. Defendant thereafter disclosed information to the prosecutor outside the presence of counsel, and proceeded to incriminate himself. We are now called upon to consider whether, in this context, defendant's incriminating statement was effected in violation of his fifth-amendment rights.

I

In May 1980 defendant, Gerald Kennedy, was in custody, awaiting sentencing for two robbery convictions. Contemplating the prospect of a severe sentence, he advised the Essex County Prosecutor's Office that he had information concerning various unsolved homicides that he wanted to exchange for a recommendation of a lighter sentence. Defendant was taken to the prosecutor's office on May 21, 1980, where he initially met with Detective Michael McGaughran, County Investigator with the prosecutor's office. The conversation focused on the 1976 homicide of Mark Arnold.

After approximately two hours, defendant requested that the conversation cease, so that he could consult with Richard D. Aljian, an attorney who was representing defendant on the unrelated robbery convictions. The investigator immediately terminated all questioning. Defendant's attorney was contacted and he came to the office, where he met with defendant for approximately one hour. Although defendant did not fully discuss his knowledge of the Arnold homicide with his attorney, Aljian testified that he advised his client that "he had an absolute right not to say anything and not to give any written statements."

While at the office, Aljian had a conversation with Lawrence Monaco, an Assistant Prosecutor for Essex County. Aljian told Monaco that his client, defendant, was awaiting sentencing on robbery convictions and wanted to bargain for a lighter sentence by relaying information about other crimes. Aljian then left the office, whereupon Assistant Prosecutor Monaco and Detective McGaughrin met with defendant. At approximately 6:30 p.m., Detective McGaughrin again advised defendant of his Miranda rights, which defendant indicated he understood. Defendant then gave a non-incriminating statement relating to the Arnold homicide. ¹ At this point, the law-enforcement officials considered defendant as only an informant in that case.

On the following day, May 22, 1980, defendant again came to the prosecutor's office, where, during a morning talk with Assistant Prosecutor Monaco and Detective McGaughrin, he revealed a fact that he had earlier withheld--the full name of his girlfriend, Pat Sanders. Monaco and McGaughrin tracked down Sanders, who gave a statement later that same day that conflicted with defendant's earlier story and tended to implicate him. ²

Now viewing the defendant as a suspect in the Arnold murder, Monaco and McGaughrin once again informed defendant of his rights and confronted him with Sanders' story. At this time, defendant did not request that no questioning occur or that questioning occur only in the presence of counsel. He proceeded to talk with the prosecutor. However, at about 6:00 p.m., defendant stated that he wished to stop talking and return to jail. Questioning immediately ceased, and the three men proceeded downstairs. Defendant then asked what would happen if he failed to give a statement. McGaughrin responded that there would be an investigation, as a result of which defendant might be charged with murder. At that point defendant indicated that he wished to give a statement.

Detective McGaughrin once again read defendant his rights, asked if he understood those rights, and read defendant the waiver form. Defendant read the waiver form, said he understood it, and signed it. Defendant did not request that he be given the opportunity to confer with counsel or that counsel be present. He proceeded to give an incriminating statement, ³ which was then typed. Defendant admitted to the truth of the statement but refused to sign it. At no point during the entire course of events on May 22nd did defendant ask to see his attorney Aljian or to have his attorney present.

On October 21, 1980, defendant and one Willie Jenkins were indicted for the felony murder of Mark Arnold, attempted armed robbery, and conspiracy to commit robbery. Prior to trial, defendant moved for suppression of the incriminating statement made on May 22, 1980. The trial court conducted a Miranda hearing, at the conclusion of which it made factual findings conforming to the foregoing facts.

Specifically, the trial court determined that, on May 21, 1980, defendant, at his own request, was taken from jail to the prosecutor's office to discuss unsolved crimes in exchange for a favorable sentence recommendation. Defendant was advised of his rights, and after some discussion, he asked to speak with his attorney. At that point all questioning ceased. Defendant's attorney spoke with defendant, and afterwards defendant voluntarily chose to continue his discussions with a member of the prosecutor's office. On the next day, May 22, 1980, defendant did not at any time ask to see his attorney, but chose instead to resume discussion. Defendant was given his Miranda rights, which he knowingly and intelligently waived. He then made a voluntary statement, without any coercion by the investigating officers.

In accordance with these findings, the trial court denied defendant's motion to suppress the incriminating statements and defendant proceeded to trial. The jury found defendant guilty of felony-murder, attempted robbery, attempted armed robbery, and conspiracy to commit robbery. The trial court sentenced defendant to life imprisonment for the felony-murder conviction, merging with that charge the convictions for attempted robbery and attempted armed robbery. Defendant received a concurrent one- to three-years term for conspiracy.

Defendant subsequently filed a notice of appeal, alleging in pertinent part that the court erred in admitting into evidence his statement of May 22nd. The Appellate Division, in a per curiam opinion, affirmed the conviction, noting that the fact that a defendant has counsel does not preclude him per se from validly waiving his fifth-amendment rights.

Defendant then petitioned this Court for certification, which was granted, restricted to the issue of the admissibility of the statement given by defendant on May 22, 1980. 94 N.J. 567, 468 A.2d 210 (1983). On the State's motion, we subsequently ordered that the matter be remanded to the trial court for further fact-finding to determine more precisely the nature of any discussions between defendant's attorney and the assistant prosecutor who interrogated defendant.

On remand, the trial court found that the defendant would not discuss his knowledge of the homicide with Aljian; rather defendant "wished to discuss the information in question in confidence with the Prosecutor." The court characterized Aljian as one "fully aware that he could not control or stop the defendant from giving whatever information he had to the Prosecutor," and that Aljian gave warnings to the defendant, "fully aware that the defendant would go as far as the defendant wished to go and [was] hoping to discourage the defendant from going too far in his discussions with the Prosecutor." The court found as well that Aljian had spoken with the defendant and warned him not to implicate himself or to give written statements. Further, Aljian told Monaco that "he had [so] advised defendant." The court therefore arrived at two conclusions: first, that Aljian had placed no "limitations upon the Prosecutor's right to discuss the information with the defendant which the defendant wished to impart to that office"; and second, that "Aljian did request Assistant Prosecutor Monaco to advise him as to the status of this matter as soon as the information which the defendant had given to that office was verified as to its truthfulness and worth." Essentially, the court found that the attorney's words amounted only to warnings to the defendant, which defendant was free to heed or ignore.

II

In Miranda v. Arizona, 384 U.S. 436, 458, 86 S.Ct. 1602, 1619, 16 L.Ed.2d 694, 714 (1964), the Supreme Court recognized that "[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice." Accordingly, the Miranda Court determined that the fifth and fourteenth amendments' prohibition against compelled self-incrimination require that custodial interrogation be preceded "by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney." Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378, 384 (1981). After being advised of his Miranda rights, an accused may himself validly waive those rights and respond to interrogation. North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

However, access to counsel is regarded as to essential to the vindication of the fifth-amendment privilege against self-incrimination that "[i]f the...