The subordinate Federal courts and the courts of the States generally are in manifest conflict. For the most recent and thorough discussion thereof see State v. Lewis (1968), 274 N.C. 438 ( 164 S.E.2d 177); People v. Worley (1967), 37 Ill.2d 439 ( 227 N.E.2d 746); People v. Sayers (1968), 22 N.Y.2d 571 ( 293 N.Y.S.2d 769, 240 N.E.2d 540) and "The Applicability of Miranda to Retrials," 116 U of Pa Law Rev, 316, of which more later along with specific reference to Jenkins v. State (1967), ___ Del ___ ( 230 A.2d 262) and Jenkins v. State (1968), ___ Del ___ ( 240 A.2d 146). The Federal decisions furnish little or no reasoning, the respective opinion writers seemingly having taken it for granted that "if this case must be retried, it is clear that Miranda must be applied."
At least eight States, including Delaware, decline to apply Miranda to post- Miranda retrials of cases originally tried prior to that decision. See People v. Worley, 37 Ill.2d 439, 227 N.E.2d 746 (1967) (dictum); Boone v. State, 3 Md. App. 11, 237 A.2d 787 (Md. Ct. Sp. App.) (dictum), cert. to Md. Ct. App. denied, 393 U.S. 872 (1968); Chapman v. State, 282 Minn. 13, 162 N.W.2d 698 (1968); State v. Vigliano, 50 N.J. 51, 232 A.2d 129 (1967) (dictum); People v. Sayers, 22 N.Y.2d 571, 240 N.E.2d 540 (1968); State v. Lewis, 274 N.C. 438, 164 S.E.2d 177 (1968) (dictum); Murphy v. State, 221 Tenn. 351, 426 S.W.2d 509 (1968). At least nine other States have indicated in dicta that Miranda should be applied to such retrials.
Jenkins v. Delaware, 395 U.S. 213, 213-214, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969) (footnotes omitted). See also, People v. Sayers, 22 N.Y.2d 571, 293 N.Y.S.2d 769, 240 N.E.2d 540 (1968), cert. denied, 395 U.S. 970, 89 S.Ct. 2107, 23 L.Ed.2d 759 (1969). Without the confession the case against Whitmore rested entirely on the identification of him by Mrs. Borrero. Discrepancies between the first descriptions of the attacker, which do not describe Whitmore and which presumably came from Mrs. Borrero, and Mrs. Borrero's description of the assailant after she had seen Whitmore at the police station, have led appellant to question her identification of him at all three trials.
In Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968) and Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), retrospective effect was denied to non-constitutional rulings in brief Per Curiams. See United States v. Scott, 425 F.2d 55, 62 (9th Cir. 1970) ( in banc) (dissenting opinion of Judge Trask); United States ex rel. Romano v. Fay, 360 F.2d 389 (2d Cir. 1966), cert. denied, Romano v. Follette, 385 U.S. 1020, 87 S.Ct. 725, 17 L.Ed.2d 557 (1967); In re Gaines, 63 Cal.2d 234, 45 Cal.Rptr. 865, 404 P.2d 473 (1965); In re Lopez, 62 Cal.2d 368, 42 Cal.Rptr. 188, 398 P.2d 380 (1965), cert. denied, 384 U.S. 1016, 86 S.Ct. 1929, 1930, 16 L.Ed.2d 1038 (1966); Ruark v. People, 158 Colo. 110, 405 P.2d 751 (1965), cert. denied, 384 U.S. 1019, 86 S.Ct. 1955, 16 L.Ed.2d 1042 (1966); People v. Worley, 37 Ill.2d 439, 227 N.E.2d 746 (1967); Arsenault v. Commonwealth, 353 Mass. 575, 233 N.E.2d 730, rev'd, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968); People v. Sayers, 22 N.Y.2d 571, 293 N.Y.S.2d 769, 240 N.E.2d 540 (1968), cert. denied. 395 U.S. 970, 89 S.Ct. 2107, 23 L.Ed.2d 759 (1969); Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965).
( People v Lopez, 6 NY3d 248; People v Seaberg, 74 NY2d 1; People v Ford, 86 NY2d 397; People v Catu, 4 NY3d 242; Matter of State of New York v Farnsworth, 75 AD3d 14; People v Gravino, 14 NY3d 546; Matter of North v Board of Examiners of Sex Offenders of State of NY, 8 NY3d 745; People v Taylor, 60 AD3d 444, 12 NY3d 860; Steele v Murphy, 365 F3d 14; Cuthrell v Director, Patuxent Inst., 475 F2d 1364.) II. This Court should not adopt the "fundamental fairness" standard of State v Bellamy ( 178 NJ 127, 835 A2d 1231). ( Johnson v Rosemeyer, 117 F3d 104.) III. If fundamental fairness mandates reversal, the new rule should be applied prospectively. ( People v Pepper, 53 NY2d 213; People v Sayers, 22 NY2d 571.) Derek Champagne, District Attorney, White Plains ( Steven A. Bender, Morrie Kleinbart and Richard Longworth Hecht of counsel), for District Attorneys Association of the State of New York, amicus curiae.
These sections are, therefore, totally irrelevant to the decision which we must make." People v. Sayers, 293 N.Y.S.2d 769 (1968). State appellate courts are not unanimous as to whether Miranda applies to retrial of a case originally tried on the merits before June 13, 1966. Numerically it can be approximated with reasonable certainty that a small majority of those courts passing on the question hold that Miranda does not apply.
Were the defendant presently imprisoned, he would most certainly be entitled to habeas corpus relief. We are not here dealing with a rule of criminal procedure ( Fuller v. Alaska, 393 U.S. 80; Stovall v. Denno, 388 U.S. 293; Johnson v. New Jersey, 384 U.S. 719; Tehan v. Shott, 382 U.S. 406; Linkletter v. Walker, 381 U.S. 618; People v. Sayers, 22 N.Y.2d 571; People v. Kaiser, 21 N.Y.2d 86). Since the statute defining the crime has been declared invalid, the conviction cannot stand. Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, KEATING, BREITEL and JASEN concur.
United States, 392 F.2d 172 (9th Cir.); Smith v. State, 210 So.2d 826 (Ala.); Evans v. United States, 375 F.2d 355 (8th Cir.); Creech v. Commonwealth, 412 S.W.2d 245 (Ky.); Amsler v. United States, 381 F.2d 37 (9th Cir.); People v. Doherty, 59 Cal.Rptr. 857, 429 P.2d 177; Dell v. State, 231 N.E.2d 522 (Ind.); State v. McCarther, 197 Kan. 279, 416 P.2d 290; Gibson v. United States, 363 F.2d 146 (5th Cir.); Thomas v. State, 3 Md. App. 101, 238 A.2d 558; Government of Virgin Islands v. Lovell, 378 F.2d 799 (3d Cir.); State v. Shoffner, 31 Wis.2d 412, 143 N.W.2d 458; State v. Brock, 101 Ariz. 168, 416 P.2d 601; State v. Ruiz, 49 Haw. 504, 421 P.2d 305. (Note: The last four cases cited do not refer to Johnson.) Decisions holding testimony that a defendant's in-custody confession made prior to June 13, 1966, is admissible in retrials begun after June 13, 1966, where there was full compliance with the constitutional standards applicable when the confession was made, include the following: People v. Sayers, 22 N.Y.2d 571, 240 N.E.2d 540; Murphy v. State, 426 S.W.2d 509 (Tenn.); Boone v. State, 3 Md. App. 11, 237 A.2d 787; State v. Branch, supra; State v. Vigliano, 50 N.J. 51, 232 A.2d 129; Jenkins v. State, 230 A.2d 262 (Del.); People v. Worley, 37 Ill.2d 439, 227 N.E.2d 746; Commonwealth v. Brady, 43 Pa. Dist. Cnty. Rpts.2d 325.
May 29, 1973 Judgment of the County Court, Nassau County, rendered May 20, 1970, affirmed (see People v. Sayers, 22 N.Y.2d 571, cert. den., 395 U.S. 970; People v. Gunner, 15 N.Y.2d 226, 232-233). Munder, Acting P.J., Martuscello, Latham, Brennan and Benjamin, JJ., concur.
Appellant contends further that the trial court erred in denying his motion for a hearing prior to retrial to determine whether he was advised of his rights against self-incrimination and whether his statement was voluntary. The trial court properly determined that Miranda v. Arizona ( 384 U.S. 436) does not apply to a post- Miranda retrial of a pre- Miranda conviction ( People v. Sayers, 22 N.Y.2d 571, cert. den. 395 U.S. 970). Sayers ( supra) also disposed of appellant's arguments that sections 464 and 544 of the Code of Criminal Procedure are controlling. The court ruled that the considerations of policy which underlie Johnson v. New Jersey ( 384 U.S. 719) do not require the State of New York to afford defendants the protection of Miranda in their post- Miranda retrials. There is no merit to appellant's contentions that pre-arraignment oral and written statements were inadmissible, without reference to voluntariness, since they followed an alleged illegal arrest.