State v. Leopardi

• Decision Date: 24 October 1997
• Citation: 305 N.J.Super. 70,701 A.2d 952
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Michael LEOPARDI, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 70

305 N.J.Super. 70

701 A.2d 952

STATE of New Jersey, Plaintiff-Respondent, v. Michael LEOPARDI, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Oct. 8, 1997.

Decided Oct. 24, 1997.

Ivelisse Torres, Public Defender, for defendant-appellant (Edward C. Lehman, Designated Counsel, of counsel and on the letter-brief).

Michael Leopardi, Appellant submitted a pro se supplemental brief.

Peter Verniero, Attorney General, for plaintiff-respondent (Craig V. Zwillman, Deputy Attorney General, of counsel and on the brief).

Before Judges BAIME, BROCHIN and BRAITHWAITE.

The opinion of the court was delivered by

BAIME, J.A.D.

The principal question presented in this case is whether defendant's right to counsel was violated by the admission at trial of an incriminating note given by him to an inmate law librarian. Although the inmate agreed to deliver the note to defendant's codefendant who was housed in a different section of the jail, he instead surrendered it to the county prosecutor. We hold that the State did not deliberately extract the incriminating information in the absence of counsel, and the statement was thus properly admitted.

I.

A jury found defendant guilty of conspiracy ( N.J.S.A. 2C:5-2), first degree robbery ( N.J.S.A. 2C:15-1), second degree aggravated assault ( N.J.S.A. 2C:12-1b(1)), and possession of imitation cocaine with intent to distribute ( N.J.S.A. 2C:35-11). The trial court sentenced defendant to sixteen years imprisonment on the conviction for first degree robbery and to a concurrent four year term on the imitation drug count. The remaining convictions were merged.

The convictions emanated out of a bizarre plot by defendant, Michael Noble, and Theodoros Merias, to sell fake cocaine to Alan Vitkosky, an undercover agent posing as a drug purchaser. As originally conceived, the plan called for defendant and his companions to exchange crumpled cookies disguised to look like cocaine for the payment of $3,300. The scheme went awry, however, when Noble reached into Vitkosky's waistband in an attempt to relieve him of his money and instead found a gun. In the ensuing struggle, defendant kicked Vitkosky's face, shattering his nose. Back-up units were immediately alerted, and defendant and his accomplices were quickly arrested.

At trial, defendant conceded that he, Noble and Merias attempted to sell imitation drugs to Vitkosky. He contended, however, that Vitkosky became upset when he realized that the "cocaine" that had been shown to him was really crumpled cookies. Defendant testified he kicked Vitkosky only when the agent reached for his gun. Defendant claimed that he was unaware of the fact that Vitkosky was a police officer, and that he had acted in self-defense.

Noble's version of the incident substantially corroborated defendant's account. Noble testified that in the course of transferring the fake cocaine, he noticed a gun protruding from Vitkosky's waistband. As he and defendant attempted to flee, Vitkosky "spun to the side," apparently reaching for the weapon. Noble claimed that he and defendant struggled with Vitkosky in an attempt to disarm him, and that they realized Vitkosky was a police officer only when they heard sirens from nearby police cars. However, immediately after his arrest, Noble gave a written statement to the police in which he admitted that he and defendant attacked Vitkosky in an attempt to relieve him of his money which both men believed was concealed in the officer's waistband. Noble's written statement was read to the jury.

The State was also permitted to admit in evidence a letter defendant had written to Noble while the two men were confined in the Mercer County Detention Center. In the letter, defendant instructed Noble to tell his lawyer that they never intended to sell narcotics to Vitkosky and that they struck the officer because he was about to pull a gun from his waistband. Defendant had given the letter to Robert Packlaian, an inmate assigned to the jail's law library, with the direction that it be delivered to Noble. At defendant's behest, Packlaian had previously delivered a note to Noble and had arranged a meeting between the two men. This time, however, Packlaian notified Investigator Lester Worthington of the Mercer County Prosecutor's Office.

Packlaian had first met Worthington several months earlier. On that occasion, Packlaian received information about a homicide and reported what he learned to Detective William Hunt, a member of the Ewing Township Police Department. Hunt contacted Worthington, who then interviewed Packlaian. According to Packlaian, neither Hunt nor Worthington asked him to obtain additional information. However, several months later, another inmate, William Green, gave Packlaian a note in which he confessed that he had killed his wife and wanted to plead "temporary insanity." Packlaian reported the incident to Worthington. While making no specific promises to Packlaian, Worthington mentioned that he was aware of the charges then pending against him, and stated that he would apprise the appropriate authorities of his cooperation.

During his conversation with Worthington about the Green matter, Packlaian suddenly interjected the information he had received from defendant. Worthington knew nothing about defendant's case. After obtaining directions from his supervisor, however, Worthington returned to the jail and retrieved defendant's letter from Packlaian. The trial court denied defendant's pretrial motion to suppress, finding that Packlaian had not acted as a government agent in obtaining the letter and that the State had not deliberately elicited defendant's incriminating statement in the absence of counsel.

II.

We first address defendant's argument that admission of his letter to Noble violated his right to counsel. Defendant claims that the State used Packlaian as an investigatory tool with the specific intent of extracting incriminating information in the absence of his attorney. We reject this contention.

The purpose of the Sixth Amendment right to counsel is to "enable the defendant to confront the prosecution and to ensure the integrity of the judicial process." State v. Sanchez, 129 N.J. 261, 265, 609 A.2d 400 (1992). The constitutional right is premised on the notion that the "average defendant does not have the professional legal skill to protect himself." Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461, 1465 (1938). Because of its "exalted status," in the hierarchy of constitutional protections, State v. Tucker, 265 N.J.Super. 296, 326, 626 A.2d 1105 (App.Div.), aff'd, 137 N.J. 259, 645 A.2d 111 (1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 751, 130 L.Ed.2d 651 (1995), the right to counsel attaches at or immediately after the "initiation of adversary judicial criminal proceedings." Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411, 417-18 (1972); see also, Michigan v. Jackson, 475 U.S. 625, 629, 106 S.Ct. 1404, 1407, 89 L.Ed.2d 631, 638 (1986). It is undisputed that formal adversarial proceedings had been instituted against defendant when he gave Packlaian the letter to be delivered to Noble. At issue, therefore, is whether the letter was obtained in violation of defendant's Sixth Amendment right to counsel.

Once the right to counsel has attached and has been asserted, the State is obliged to honor it. This obligation encompasses more than preventing the accused from obtaining the assistance of counsel. Maine v. Moulton, 474 U.S. 159, 170-71, 106 S.Ct. 477, 484, 88 L.Ed.2d 481, 492 (1985). The Sixth Amendment also "imposes on the State an affirmative obligation to respect and preserve the accused's choice to seek this assistance." Id. at 171, 106 S.Ct. at 484, 88 L.Ed.2d at 492. The police and the prosecutor may not act "in a manner that circumvents [or] dilutes the protection afforded by the right to counsel" Ibid. The constitutional guaranty protects against governmental intrusion into the "intimate relationship" between a defendant and his attorney. State v. Sugar, 84 N.J. 1, 13, 417 A.2d 474 (1980). It applies with equal force in the more subtle context of indirect and surreptitious interrogations involving "jailhouse informants." State v. Bey, 258 N.J.Super. 451, 468, 610 A.2d 403 (App.Div.1992), certif. denied, 130 N.J. 19, 611 A.2d 657 (1992).

The seminal case involving a violation of the Sixth Amendment by questioning a represented defendant in the absence of an attorney is Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). There, incriminating statements of a defendant, indicted but free on bail, were secretly monitored by a "body wire" on the person of a codefendant who had agreed to act as an informant. The statements were admitted at trial. The Supreme Court reversed, holding that the defendant had been denied his Sixth Amendment rights when "his own incriminating words ... [were] deliberately elicited from him [by the federal agents] after he had been indicted and in the absence of counsel." Id. at 206, 84 S.Ct. at 1203, 12 L.Ed.2d at 250.

United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), followed in the wake of the Supreme Court's opinion in Massiah. In Henry, the defendant confessed to an inmate that he had participated in a bank robbery. The inmate was a paid informer who allegedly had been placed in the same cell as the defendant by federal agents in order to secure information concerning the robbery. He had been told by the agents to "be alert to any incriminating statements, but not to initiate any conversation or question [the defendant]." Id. at 266, 100 S.Ct. at 2187, 65 L.Ed.2d at 119. The Supreme Court reversed the conviction, holding there was a violation of the defendant's Sixth Amendment right not to be questioned without his attorney present. Id. at 274, 100 S.Ct. at 2189, 65 L.Ed.2d at 125. In reaching this conclusion, the...