State v. Koch

Citation288 A.2d 295,118 N.J.Super. 421
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Harry KOCH, Defendant-Appellant.
Decision Date09 March 1972
CourtNew Jersey Superior Court – Appellate Division

Gerald P. Boswell, Asst. Deputy Public Defender, for appellant (Stanley C. Van Ness, Public Defender, attorney; Renee Rivkis, Asst. Deputy Public Defender, of counsel).

Joyce E. Munkacsi, Asst. Prosecutor, for respondent (John S. Kuhlthau, Middlesex County Prosecutor, attorney; Michael R. Perle, Deputy Atty. Gen., on the brief).

Before Judges CONFORD, MATTHEWS and FRITZ.

The opinion of the court was delivered by

CONFORD, P.J.A.D.

In this appeal from denial of post-conviction relief we find potential merit in only one of the appellant's contentions--that his conviction in May 1967 for armed robbery was unconstitutionally flawed by the introduction into evidence by the State on his cross-examination of two prior convictions of defendant in South Carolina, one for highway robbery and the other for escape. 1 He is entitled to a new trial if he had no counsel and did not waive counsel on the occasion of such convictions. 2 (The State also confronted defendant with a third prior conviction--for manslaughter--but defendant has admitted he had counsel in that matter.) We find ourselves constrained to conclude that if defendant was uncounseled in the prior convictions, invalidation of the instant conviction is mandated by the clear implication of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (U.S.Sup.Ct., Jan. 11, 1972), coupled with the holding and rationale of Burgett v. Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), both decided subsequent to defendant's present conviction. We have had and have considered supplemental briefs from the parties in relation to the effect of Tucker.

Defendant was tried and convicted before a jury in May 1967 on an indictment for armed robbery. The principal witness for the State, Mrs. Morris, identified defendant at a pretrial confrontation and in court as one of two men who robbed her in her home. Defendant testified in denial of his complicity in the crime, and gave an alibi, with purported support of two witnesses. On cross-examination, he admitted prior convictions in South Carolina for escape and for highway robbery, the latter in 1949 when he was 17 (as well as the aforesaid manslaughter conviction in 1951). There were defense objections, but not on the ground of lack of counsel at the time of the prior convictions. In accordance with our settled law, the trial judge instructed the jury that the prior convictions could be considered by them to weigh against defendant's credibility. N.J.S. 2A:81--12.

In sentencing defendant to 10 to 13 years imprisonment, the trial judge alluded to defendant's record and said that 'crime evidently is a way of life with you' and that defendant was a 'hardened criminal.'

On direct appeal to this court defendant argued error on the ground, among others, that he was uncounseled at the time of the prior convictions and that the Burgett case, Supra (decided November 13, 1967), mandated a reversal. We affirmed the conviction on October 4, 1968. As to the point here under consideration we said (in an unpublished opinion):

2. The contention of error in admission of prior convictions to affect credibility, insofar as based on the recent decision of the United States Supreme Court in Burgett v. Texas (389 U.S. 109, 88 S.Ct. 258), 19 L.Ed.2d 319 (1967), is not available on the record of this appeal as that record fails to show defendant was not represented on the earlier conviction, or, if unrepresented, that he had failed to waive counsel. We therefore need not inquire whether the reach of the Burgett case extends to use of prior convictions (without counsel) only to affect credibility, or whether the doctrine of that case is retroactive.

Our disposition of this appeal is without prejudice to any post-conviction proceeding the defendant may bring.

Our Supreme Court denied certification February 13, 1969, 53 N.J. 348, 250 A.2d 750, and the United States Supreme Court denied certiorari June 9, 1969, 395 U.S. 949, 89 S.Ct. 2030, 23 L.Ed.2d 469.

Thereafter defendant instituted this proceeding for post-conviction relief, the petition containing a sworn verification by him that prior convictions were used against him at his trial in which convictions he was 'without assistance of counsel and counsel was not waived.'

At the post-conviction hearing counsel for defendant offered to have him testify that he was without counsel at either the highway robbery or escape prosecutions. The State represented to the court that its own investigation of the South Carolina court records failed to reveal any information which would permit it to controvert the defendant's representations as to absence of counsel. Thereupon the court declined the proffer of testimony, saying: 'For the record, * * * I assume that defendant was (sic) in court here and will testify that he did not have counsel at either one of those convictions.' Therefore, the judge noted later in the proceedings, the 'requirement of some evidence (was) moot.' After argument the court declined post-conviction relief essentially on the grounds that defendant should have made his objection to the invalidity of the prior convictions at his trial and that in any event Burgett was either not applicable or not retroactive in effect.

The State's interest in the integrity of the instant conviction should have dissuaded the trial court from stipulating the truth of defendant's representations as to absence of counsel without requiring him to testify to that effect, as he offered to do. Moreover, the stipulation did not expressly cover waiver of counsel, which could have been readily settled by having defendant interrogated as to whether he was advised of his right to counsel and that counsel would be provided for him if he was indigent. Despite the fact that the certified copies of the judgments of the escape and highway robbery convictions, apparently used at the trial and presently submitted to us, are silent as to representation; that waiver of counsel is not presumable from a 'silent record,' Carnley v. Cochran, 369 U.S. 506, 512, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), and that courts 'indulge every reasonable presumption against waiver of constitutional rights,' Id. at 514, 82 S.Ct. at 889; Johnson v. Zerbst, 304 U.S. 458, 464--465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1937), we deem the proper course of justice to require a remand for testimony and findings on the questions of presence of counsel and waiver. The remainder of this opinion proceeds on the assumption that absence of counsel and non-waiver thereof will be established on the remand, within the evidentiary principles just alluded to. If not, the conviction will be affirmed.

I. The reach of Burgett To impeachment of credibility.

Burgett took the position that a Texas repetitive-offender type statute could not be activated to enhance punishment where the prior convictions sought to be used for that purpose had been obtained without defendant's representation by counsel, or waiver thereof, in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Even though, after the prior convictions were laid before the jury, the trial court instructed the jury to disregard them and did not permit enhancement of penalty, the Supreme Court reversed, holding the admission of the prior convictions was 'inherently prejudicial.' 389 U.S. at 115, 88 S.Ct. 258 at 262. The court said that '(t)o permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either To support guilt or enhance punishment for another offense * * * is to erode the principle of that case.' (Emphasis ours).

In Tucker, supra, the court was confronted with a situation wherein the defendant had been tried in a federal district court in 1953 for armed bank robbery. Three prior convictions were adduced by the Government to impeach defendant's credibility on cross-examination. Moreover, considerable emphasis was placed on the convictions by the sentencing judge in imposing a maximum 25-year sentence. Defendant filed a motion collaterally attacking the conviction 16 years later, claiming he had not been represented by counsel in the criminal proceedings culminating in the convictions used to impeach his credibility--and that the use of such convictions therefore tainted the subject conviction. The district judge agreed with the contention of error (see 404 U.S. at 445, 92 S.Ct. at 591, 30 L.Ed.2d at 595), but found it harmless beyond a reasonable doubt because of the overwhelming evidence of defendant's guilt at the trial of the armed bank robbery case. On appeal the Court of Appeals for the Ninth Circuit agreed with the district court on the point of harmless error (and, by clear implication on the error in the use of the prior convictions at trial), but remanded for resentencing on the ground of reasonable probability that the consideration at sentencing of the defective prior convictions had led the trial judge to impose a heavier sentence than otherwise he would have. Tucker v. United States, 431 F.2d 1292 (1970).

The United States Supreme Court explicitly agreed with the result and rationale of the Ninth Circuit, and affirmed. To us it is inescapable that the court agreed with the conclusion of both the district court and the court of appeals that the use of the prior convictions to impeach credibility would have invalidated the subject conviction, within the rationale of Burgett, even though asserted in post-conviction proceedings 16 years later, had it not been for the neutralizing factor of harmless error beyond a reasonable doubt.

The courts of California anticipated Burgett in relation to use of uncounseled prior convictions to enhance punishment under an habitual offender s...

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