author: Goedmawx, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LAWSON PROVOID, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 15, 1970
    Decided June 22, 1970.

      Before Judges Goedmanx, Lewis and Matthews.

      Mr. Arthur Penn, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley 0. Van Ness, Public Defender, attorney).

      Mr. Joseph A. Falcone, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Goedmawx, P. J. A. D.

Defendant was indicted for murder, tried to a jury and, following an eight-day trial, found guilty of manslaughter. He was sentenced to a State Prison term of 5-7 years. His subsequent motion for reduction of sentence ivas denied. He appeals his conviction.

Defendant and his family lived in the upstairs portion of a two-family house in Newark, the downstairs being occupied by the Arnold family. Although once on good terms, ill will developed between the families, attended by frequent disputes and altercations.

On July 4, 1967 Wilkie Judd, Mrs. Arnold’s brother, came to spend the holiday with the Arnolds. There was a good deal of beer drinking for most of the day, at a neighborhood barbecue in the afternoon and the Arnold apartment later on. The essence of the Arnold version of what occurred was that toward evening Mrs. Arnold had admonished defendant’s children for setting off firecrackers under a car, and she claimed to have been hit in the knee by an object thrown by defendant’s son Anthony. The Arnolds called the police, and this infuriated defendant. When Mr. Arnold went outside to get some cigarettes from his car, he encountered the irate defendant, who came out of some bushes brandishing a car jack handle. After some words, defendant knocked Arnold unconscious. When Judd hurried outside to investigate and was bending over the injured Arnold, defendant struck and killed him. Mrs. Arnold claimed that defendant then assaulted her.

Defendant’s account of the incident was completely different. He testified that his son Anthony had complained of Mrs. Arnold chasing him. When he went out for a paper a little later and walked down from the front porch he was accosted by Arnold, Judd and an unidentified third man, all of them threateningly waving knives. According to defendant, he had to flee the premises twice and, as he was in the course of again returning, picked up a jack handle that he happened upon as he was crossing a nearby vacant lot. He testified that as he approached the house the three men menaced him with their weapons and he began swinging the jack handle. Arnold and Judd were hit, and the third man ran away. This took place on the sidewalk or out in the street, where Judd was found. Arnold was taken to the hospital. Defendant said that after hitting the two men he went to a neighborhood bar where he told the bartender, “I have just killed a couple of fellows up the street,” and asked that the police be called.

Defendant’s testimony was substantially corroborated by his wife and son. The wife claimed that Mrs. Arnold had removed the knives from the hands of the unconscious men in the street. The police found the jack handle under Arnold’s car and various kitchen knives in the Arnold apartment. At trial defendant claimed excusable homicide by way of self-defense. N J. 8. A. 2A:113—6.

Defendant first argues that the trial judge incorrectly charged the jury as to self-defense. This is raised as plain error, no objection having been taken. The judge said:

When a person claims lie acted in self-defense the question of whether he should have retreated arises. The duty to retrear does not arise unless a person resorts to ihe use of deadly force. A deadly force is force which the defendant has reason to know will create a substantial risk of causing death or serious injury.
S*{ # i’ff Sji i'jt * >}!
Now, if you find that the defendant intentionally resorted to the use of force with a knowledge of an available opportunity to retreat with complete safety he was then under a duty to retreat without resorting- to the use of deadly force. However, there is no positive duty to retreat nor a categorical proof of guilt if he in good faith believed even though mistakenly that he could not have retreated with complete safety to himself. The opportunity to retreat, however, is a factual element to be considered under the principles stated above together with all other surrounding circumstances in determining only such resistance and force as appeared to be necessary under ail the circumstances.

Specifically, defendant urges that since the incident occurred within the “curtilage” of his own premises, he was under no affirmative duty to retreat before resorting to deadly force in his own defense. He further contends that even if one were to assume that the attack upon him by Judd occurred in the street a few feet from the sidewalk, he was still within the curtilage of his own home and hence under no obligation to retreat.

The issue of retreat arises only where a defendant resorts to deadly force. The general rule is that he has a duty to retreat from his assailant when attacked, assuming that he reasonably perceives that he can do so in complete safety. State v. Abbott, 36 N. J. 63, 69 et seq. (1961); State v. DiMaria, 88 N. J. L. 116 (Sup. Ct. 1916), aff'd o. b. 90 N. J. L. 341 (E. & A. 1917). However, this common law doctrine is not applied when the person is assailed in his own dwelling; in such a case he is under no duty to retreat from his personal bastion. See People v. Tomlins, 213 N. Y. 240, 107 N. E. 496 (Ct. App. 1914); Palmer v. State, 9 Wyo. 40, 59 P. 793 (Sup. Ct. 1900). As to just what constitutes the limits of a “dwelling,” the majority of jurisdictions in this country have concluded that the privilege of self defense without retreat extends to anywhere within the “curtilage” of a man’s home. See State v. Abbott, above, 36 N. J. at 67; see also Beard v. United States, 158 U. S. 550, 15 S. Ct. 963, 39 L. Ed. 1086 (1895); State v. Frizzelle, 243 N. C. 49, 89 S. E. 2d 725 (Sup. Ct. 1955). The few cases dealing with the subject have emphatically affirmed that the curtilage of one’s residence does not, as defendant would have it, extend to a public thoroughfare running along the boundary of one’s property. See Nunn v. State, 19 Ala. App. 619, 99 So. 738 (Ct. App. 1924); State v. Boyd, 126 S. C. 300, 119 S. E. 839 (Sup. Ct. 1923); 40 Am. Jur. 3d 1485 (1957). The killing here unquestionably occurred in the public street fronting the residence. Thus, despite the fact that, according to defendant’s version of the incident, the assault was initiated on the front steps of the house, he was, in the circumstances, under a positive duty to retreat once he was in the street.

Even had the incident leading to the fatal assault occurred on the Arnold-Provoid property, it has consistently been held that if the premises in question are jointly occupied by the assailant and the defender, then there is no privilege of nonretreat, and the ordinary rules of self-defense apply. See State v. Pontery, 19 N. J. 457, 475 (1955); Warren on Homicide (2d ed. 1938), § 157, at 775; see also, State v. Abbott, above, 36 N. J. at 67. Defendant claims he was attacked by another tenant of the premises (Arnold) and by his lawful guest (Judd). While he possibly need not have retreated from Judd, he surely should have retreated from Arnold, the joint attacker and a co-occupant of the premises. The alleged assaults are not separable in fact or law. Accordingly, since both the killer and the assailants were on commonly held property (under our assumption but not under the actual facts), defendant had no immunity from the ordinary self-defense doctrine and could not claim to have been backed to the wall of his “castle.” See State v. Pontery, above.

We therefore conclude that the charge was not erroneous and certainly not plain error. See State v. Gardner, 51 N. J. 444, 456 (1968).

Defendant next argues that certain evidence was improperly admitted and that the trial judge erroneously charged the jury as to the probative weight to be attached thereto. Here, again, the argument is advanced under the plain error rule.

A detective had questioned Arnold at the hospital and recorded a summary of their conversation on an incident report. At trial the officer was permitted to read from his record:

He staled about 9 p.m on July 4th, 1907, Lawson Provoid kicked down his front door and said, “Come on out. I’m going to kill you.” Wendell [Arnold] went outside and was struck on the head with a blunt object. What lie thought was a hammer. And didn’t remember anything else.

The account Arnold gave at trial was quite different.

In his charge the trial judge instructed the jurors that where they recalled conflicting testimony, they conld credit either statement and regard it as substantive evidence. Defendant contends that this standard was improper when applied to the prior inconsistent statement Arnold had given the detective. The State, on the other hand, argues that the statement was admissible under the business records exception to the hearsay rule. See Evidence Rules 63(13) and 63(15) (a); see also Brown v. Mortimer, 100 N. J. Super. 395, 402-404 (App. Div. 1968).

The included hearsay was not properly admissible as substantive proof, primarily because the declarant was one of the participants in the fracas and with a possible motive to misrepresent the occurrence. Although the statement might properly have been admitted to challenge Arnold’s credibility, it was offered by the State, which ordinarily could not and would not discredit its own witness. See Evidence Bules 20 and 63(1). Accordingly, Arnold’s prior statement was improperly admitted.

However, defense counsel failed to object to the testimony when it was offered. Thus, it is incumbent upon the defense to establish that the admission of the included hearsay adversely affected defendant’s substantial rights and was of a sufficiently grievous nature as to have a clear capacity to bring about an unjust result. State v. Gardner, above, 51 N. J. at 456. The jury verdict of manslaughter clearly indicates that it did not believe the homicide to have been premeditated. Certainly, it has not been shown that the admission of the hearsay statement in any way prejudiced defendant.

As to the allegedly improper jury charge, it is evident that the reference to contradictory statements was not focused on the matter here under consideration. Even if it were so misconstrued by the jurors, it is evident from their verdict that they were not swayed by the language of the hearsay statement in the detective’s report.

We therefore hold that defendant has failed to make an adequate showing of plain error warranting reversal.

After the defense had presented its case the State was permitted to call a police officer to testify as to the handling and recording of telephone complaints. He said that the police complaint report cards showed that a telephone call had been received on the date of the incident from someone named Arnold, alleging an atrocious assault and battery. The record was admitted in evidence. Earlier, on the State’s main case, a police officer had testified that telephone records were normally destroyed after a period of time. The trial judge permitted this supplemental proof over defense counsel’s vigorous objection, either as rebuttal evidence or, alternatively, on the basis of a reopening of the State’s case to receive further evidence. Defendant argues that the testimony was improper rebuttal and that, as regards the telephone record itself, there was not sufficient authentication as to who actually placed the call to headquarters.

Ordinarily, rebuttal is confined to the contradiction of specific subjects introduced on direct or cross-examination of defense witnesses. State v. Steensen, 35 N. J. Super. 103, 107 (App. Div. 1955). However, where the evidence would properly have been admissible in chief, the trial judge is vested with broad discretion, and the appellate tribunal will not disturb the lower court’s determination in the absence of gross abuse. State v. DeRocco, 53 N. J. Super. 316, 323 (App. Div. 1959); State v. Balles, 47 N. J. 331, 343 (1966), app. dism. 388 U. S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967). The officer’s testimony, as we have observed, was admitted on the alternate ground of reopening the case, the obvious purpose being to assure the fullest possible exposition of the true facts. See State v. Wolf, 44 N. J. 176, 188-191 (1965). There was no abuse of judicial discretion.

As to the record of the phone call, it was sufficiently authenticated to come in under the business records exception to the hearsay rule. See Evidence Rule 63(13). Defendant’s reliance on an excised quotation from State v. Bassano, 67 N. J. Super. 526 (App. Div. 1961), is misplaced. The Bassano court, while recognizing the difficulties inherent in admitting such unidentified reports, affirmed the admission of the telephone statement as circumstantial evidence, on the ground that the jury could, in the particular circumstances of that case, reasonably find that the call had been made by defendant. (At 534.) Equally so here: the jury could reasonably have concluded that Mrs. Arnold had made the phone call after the incident, and the documentary evidence would then be admissible as circumstantial proof.

We find no error in the “rebuttal” testimony or in the admission of the telephone record.

Defendant claims error in the denial of a mistrial because the judge referred to facts not in evidence when charging the jury. Defendant’s wife testified out of the hearing of the jury that she had once filed a complaint charging her bus-band with assault and battery. In the course of bis charge the judge, discussing the maxim falsus in uno, falsus in omnibus, -instructed the jury:

Now, if you believe that any witness willfully or knowingly or intentionally testified falsely to any material facts in this case you may give such weight to his or her testimony as you may deem it is entitled to. You may believe all of it, some of it or you may in your discretion disregard all of it.
In this regard there was a query put to the defendant’s wife, Mrs. Provoid. She was asked whether she had ever filed a complaint m the Municipal Court charging her husband with committing an assault and battery. At first her reply was “no” but upon further examination she admitted that she had been struck and filed a complaint. The reason the Court permitted this line of questioning was only for the purpose of impeaching, if it did, Mrs. Pro void’s credibility and it may not bf conf-ideied hj you for the purpose of inferring that it tends to prove that the defendant, Provoid, had a disposition for committing acts of violence or for committing assaults and batteries or had a violent temper.

Defense counsel promptly objected to the judge’s reference to testimony not in evidence and moved for a mistrial. The judge declined to do so, but recalled the jury and corrected his previous instruction by charging that

* * * there is no evidence in this case that any complaint was filed by Mrs. Provoid against her husband. * * * There is no other complaint that need be or should he considered by you people as a complaint made by Mrs. Provoid.

Defendant argues that the curative instruction was insufficient to erase the improper reference from the minds of the jurors, citing the general language of Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).

The disposition of a mistrial motion is properly addressed to the sound discretion of the trial judge, and a denial will not be reversed absent a clear showing of prejudice to defendant. State v. O’Leary, 25 N. J. 104, 116 (1957). Mistrial is an extraordinary remedy and should be resorted to only to prevent an obvious failure of justice. State v. Neff, 67 N. J. Super. 213, 220 (App. Div. 1961). Accordingly, while the original instruction was erroneous in content and potentially prejudicial, it cannot be said as a matter oí law that the attempted correction was insufficient and that the trial judge therefore abused discretion in refusing to declare a mistrial.

Upon being found guilty of manslaughter, defendant was sentenced to a State Prison term of from five to seven years. He contends that the sentence was manifestly excessive in view of his having no previous criminal record and his general good conduct.

It is firmly established that the sentencing judge has broad discretion and exclusive jurisdiction to determine the quantum of the sentence, within statutory bounds. State v. Pohlabel, 61 N. J. Super. 242, 251 (App. Div. 1960). However, the sentence is renewable and an appellate court may reduce it, even though it lies.within statutory limits, “whenever the interests of justice so require.” State v. Laws, 51 N. J. 494, 509-510 (1968); cf. State v. Bess, 53 N. J. 10 (1968) . But before the reviewing court will interfere there must be a clear showing of abuso of discretion, State v. Tyson, 43 N. J. 411, 419 (1964), cert. don. 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965), and the burden of doing so is squarely on defendant, State v. Cox, 101 N. J. Super. 470, 475 (App. Div. 1968), certif. den. 53 N. J. 510 (1969) ; State v. Gibbs, 79 N. J. Super. 315, 325 (App. Div. 1963). The power to revise a sentence should be exercised only with extreme care. State v. Cox, above, 101 N. J. Super, at 475; State v. Gibbs, above, 79 N. J. Super. at 325.

While defendant’s record and background are admittedly anything but damning, the sentence imposed by the trial judge is well within the statutory limits. Defendant has shown no abuse of discretion, and we find none.

Finding no substantial prejudice to have been visited upon defendant in any of the several respects argued, considered individually or cumulatively, the conviction is affirmed.


source: Caselaw Access Project

author: Pee Cttkiam.

license: Public Domain

text:
    HOWELL O. ARCHARD, JR., PLAINTIFF-APPELLANT, v. ALICE T. MESMER, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted June 15, 1970
    Decided June 22, 1970.

      Before Judges Goldmanx, Lewis and Matthews.

      Messrs. Schlesinger, Manuel & Schlasser, attorneys for appellant [ Air. Alfred A. Faxon, III, on the brief).

      Messrs. Dimon, Haines and Bunting, attorneys for respondent {Mr. Donald E. Williams, on the brief).
   Pee Cttkiam.

Plaintiff appeals from a Law Division summary judgment dismissing his complaint.

Plaintiff and defendant are brother and sister and were expectant beneficiaries of their father’s estate, although plaintiff was not on the best of terms with his parent. Upon testator’s death a lion’s share of the estate was left to defendant daughter.

Subsequently, plaintiff filed a complaint alleging that he and Iris sister had in 1958 orally agreed, with no more than a handshake, to share equally in the estate in the event of an unequal testamentary distribution. Defendant’s answer denied the existence of any such agreement, and an amended answer asserted that the alleged arrangement violated the statute of frauds and the statute of wills. Defendant moved for summary judgment and the trial judge readily granted it, plaintiff not even having filed an opposing brief.

Plaintiff first claims it was error to proceed to dispose of the action by way of summary judgment. There is nothing to this procedural point. In addition to the pleadings the trial judge also had before him depositions, and therefore could have proceeded to summary judgment under B. 4:6-2(e).

Plaintiff also claims that the action should have been transferred to the Chancery Division instead of being disposed of in the Law Division. Although the matter should have been instituted in the Chancery Division, once the Law Division had the case it could proceed to adjudicate equitable claims, and this in the interest of conserving judicial time. N. J. Const. (1947), Art. VI, § III, par. 4.

The core of this case is plaintiff’s claim under the alleged 1958 oral agreement with his sister. Their father died ten years later, in January 1968, making an unequal distribution of the estate in defendant’s favor. In granting summary judgment the trial judge found “nothing in the facts and nothing in any law,-’ which supported plaintiff’s position. The ruling was correct. In New Jersey mutual promises, unsupported by valuable consideration, to equally divide expected interests in an estate will ordinarily not be enforced as against public policy, manifested in the statute of wills. Such agreements thwart the plain wishes of the testator and are fraught with opportunities for fraud. Buford v. Nowahoski, 125 N. J. Eq. 262, 266 and reaffirmed 126 N. J. Eq. 529 (E. & A. 1939); Baer v. Fidelity Union Trust Co., 132 N. J. Eq. 333, 336 (Ch. 1942), aff’d 133 N. J. Eq. 264 (E. & A. 1943); see also 5 N. J. Practice (Clapp, Wills and Admimsiration) (3d ed 1962), § 405, at 598; 2 Page on Wills (Bowe-Parker 4th ed. 1960), § 25.7, at 634.

Affirmed.


author: Pee Cueiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. NORMAN CLARK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 15, 1970
    Decided June 26, 1970.

      Before Judges Sullivan, Cakton and Halpekn.

      Mrs. Mary Aurigemma, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley 0. Van Ness, Public Defender, attorney).

      Mr. Rollin S. Neal, Assistant Prosecutor, argued the cause for respondent (Mr. Robert Bilis, Bergen County Prosecutor, attorney).
   Pee Cueiam.

In December 1963 defendant pleaded non vult to the murder of his wife. He was sentenced to 15 to 25 years in State’s Prison.

The instant post-conviction relief proceeding, prosecuted on his behalf by the Public Defender, contends that his plea was not voluntarily made and should not have been accepted. The issues of ineffective assistance of counsel and excessiveness of sentence were also raised. Basically, however, defendant asserts that his wife died from causes unrelated to the gunshot wound which defendant inflicted on her.

The trial court, after holding a full hearing in the matter, rejected all of defendant’s contentions, and specifically found that beyond any reasonable doubt the gunshot wound was the sole proximate cause of the wife’s death. The court’s opinion is reported at 104 N. J. Super. 67 (Law Div. 1968).

We have carefully reviewed the entire record and are in full agreement with the trial court’s findings as set forth in its opinion. We are satisfied that defendant’s plea was voluntarily made and was properly accepted. The contention of ineffective assistance of counsel is without legal foundation.

Affirmed.


author: Mountain, J. S. C.

text:
    A & S MANUFACTURING CO., INC., A NEW YORK CORPORATION, PLAINTIFF, v. RICHARD WETZLER AND PAUL SMITH, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided June 15, 1970.

      Mr. Boberi E. Hartmann for plaintiff (Messrs. Hartmann and Brooks, attorneys).

      Mr. George B. Gelman for defendant, Eichard Wetzler, {Messrs. Galissi, Gelman, Guccio and Klinger, attorneys; Mr. Joel L. Shain, on the brief).
   Mountain, J. S. C.

The question before the court is whether defendant Eichard Wetzler was properly served in this action. Service was pursuant to B. 4:4-4(a), which permits service upon an individual “by leaving a copy [of the summons and complaint] at his dwelling house or usual place of abode * * *” (emphasis added).

Substituted or constructive service is in derogation of the general common law requirement that there be personal service. Kurilla v. Roth, 132 N. J. L. 213, 216 (Sup. Ct. 1944); Eckman v. Grear, 14 N. J. Misc. 807, 809 (C. P. 1936); 42 Am. Jur., Process, § 61 (1942). Statutes or rules of court providing for such service must be strictly construed and fully carried out in order to confer jurisdiction. Id. The italicized words above have a more restricted meeting than either residence or domicile. Eckman v. Grear, supra, at 809-810; Mygatt v. Coe, 63 N. J. L. 510, 511-512 (Sup. Ct. 1899); 42 Am. Jur., supra. They mean the place where the defendant is “actually living” at the time when service is made. Id; Feighan v. Sobers & Son, 84 N. J. L. 575, 576 (Sup. Ct. 1913) affirmed 86 N. J. L. 356 (E. & A. 1914) ; Sweeny v. Miner, 88 N. J. L. 361, 364 (E. & A. 1915) ; Warfield v. Fischer, 94 N. J. Super. 142, 146 (Law Div. 1967); Fidelity Deposit Co. v. Abagnale, 97 N. J. Super. 132, 145 (Law Div. 1967).

New Jersey has a long line of cases dealing with the sufficiency of substituted service at the “dwelling house or usual place of abode.” E. g., Mygatt v. Coe; Feighan v. Sobers & Son; Sweeny v. Miner; Eckman v. Grear; and Kurilla v. Roth, all supra; Missell v. Hays, 84 N. J. L. 196 (Sup. Ct. 1913), affirmed 86 N. J. L. 348 (E. & A. 1914) ; Vredenburgh v. Weidmann, 14 N. J. Misc. 285 (Sup. Ct. 1936); Warfield v. Fischer, and Fidelity Deposit Co. v. Abaganale, supra. Three familiar fact patterns have developed: (1) cases involving members of the military (Eckman v. Grear and Kurilla v. Roth, supra); (2) cases involving college students (Missell v. Hays, Vredenburgh v. Weidmann and Warfield v. Fischer, supra); (3) those involving persons incarcerated in penal institutions (Fidelity Deposit Co. v. Abagnale, supra). In Warfield v. Fischer, supra, however, the court explicitly stated that the distinction is not between absence at school and absence because of military duty and, it might be added, absence because of incarceration, that is determinative. Rather, there is a basic consideration underlying the differing factual patterns. That is:

The design of provisions for * * * substituted service is to afford the defendant actual notice of the action in time to make f&l defense * * *. The principle of reasonable notice is of the essence. * * * the sufficiency of the statutory substitute for personal service depends upon whether it is reasonably calculated to provide the defendant with notice of the action or proceeding and an opportunity to be heard. [Kurilla v. Roth, supra, 132 N. J. L. at 216]

Thus, the likelihood of prompt notice of the suit to defendant is the justification for permitting the substituted service. Warfield v. Fischer, supra, 94 N. J. Super, at 147.

Consequently, in their consideration as to whether there has been sendee at the “dwelling house or usual place of abode” courts have looked at certain objective factors that implicitly recognize this requirement. They have considered whether there is a “setting of familial disorganization” (Fidelity Deposit Co. v. Abagnale, supra, 97 N. J. Super, at 146), e. g., incarceration in a penal institution, or marital discord (Berryhill v. Sepp, 106 Minn. 458, 119 N. W. 404 (Minn. Sup. Ct. 1909); whether there is a regular pattern of residence at the place where service has been made (compare Warfield v. Fischer, supra, with Feighan v. Sobers & Sons, supra,); whether the dwelling where service is made is occupied at the time of service (Mygatt v. Coe, supra; Sweeney v. Miner, supra, 88 N. J. L. at 363-364) and whether the defendant has removed his personal belongings from the dwelling place (Eckman v. Grear, supra, 14 N. J. Misc, at 808; but see Kurilla v. Roth, supra, 132 N. J. L. at 217) in determining whether the defendant was “actually living” at the dwelling when service was made.

In the case of a married man, as here, the house where his wife and family resides is prima facie or presumptively his “dwelling house or usual place of abode.” Hollberg v. Bommersbach, 236 Minn. 335, 52 N. W. 2d 766 (Minn. Sup. Ct. 1952); 42 Am. Jur., Process, § 61. The presumption, however, is one of fact and not of law, and may be rebutted. Id.

Where a person had been a Minnesota resident, but left six hours before service and was en route to another state where he intended to commence work and establish a permanent domicile, the Supreme Court of Minnesota held his “usual place of abode” was still his Minnesota house wherein his wife continued to reside in order to complete moving arrangements. Walker Employment Service, Inc. v. Swanson, 278 Minn. 368, 154 N. W. 2d 823 (1967). In the case at bar the defendant was already working and living in Canada when the service in question was made in New Jersey.

In another similar case, the Supreme Court of Iowa held that where a man leaves his family and goes to work in anther state intending to make it his and his family’s permanent home 18 months before service upon his wife at the old residence, there was not proper service at his “usual place of residence.” Schlawig v. De Peyster, 83 Iowa 323, 49 N. W. 843 (1891). The time lapse before service in the instant case was 43 days rather than 18 months.

Defendant, in the case at bar, entered into a contract to sell his New Jersey home on December 23, 1969, with the closing scheduled for February 28, 1970. The closing was delayed until April 2, 1970 due to difficulties encountered in searching the title. Defendant departed, with his personal possessions, on January 26, 1970 to begin immediately working in Canada for Maple Roll Leaf Co. Ltd. Upon entering Canada he signed a Canadian application for permanent admission stating his intention to have his wife and child join him and his further intention to bring his furniture, ear, etc., into Canada. Service was made upon his wife at the Hew Jersey residence on March 10, 1970. There was no marital discord; the parties exhibited an intention to reunite and settle together in Canada. Wetzler visited his wife and child at the Hew Jersey residence on three or four weekends between the time he left for Canada and the date of service. On March 2, 1970 defendant signed a lease of a residence property in Canada. The lease contains an option to purchase. I am aware that there are conflicting affidavits as to the existence of the apartment to which defendant allegedly moved in Canada. It is, however, unnecessary to establish a new particular dwelling place in order to disprove a contention that one is living at the old dwelling.

In light of the aforementioned principles of law I find the following objective factors, indicative of defendant's intention, determinative: (1) his sale of his Hew Jersey home on December 23, 1969; (2) his application on January 26, 1970 for permanent admission into Canada; (3) his having taken his personal belongings with him to Canada, and (4) his employment in Canada for 43 days before service was effected. Thus, I find that the place defendant was “usually found” when service was made was not 838 Warwick Turnpike, Hewitt, Hew Jersey; that that house was no longer his “present place of abode,” and that he was not “actually living” at that address when service was attempted.

Counsel will submit an order vacating service of process.


author: Joblso'St, J. S. C.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. DONALD CREVINA, DEFENDANT.
    Superior Court of New Jersey Law Division—(Criminal)
    Decided May 28, 1970.

      Mr. Bernard B. Montalbano, Assistant Prosecutor, Passaic County, argued the motion for the State (Mr. Joseph D. J. Gourley, Prosecutor, attorney).

      Mr. Anthony B. La Luca argued the motion for defendant.
   Joblso'St, J. S. C.

This matter comes before the court on defendant’s motion to suppress evidence alleged to have been obtained as the result of an unlawful search and seizure.

The facts are not substantially in dispute as to the events leading up to defendant’s arrest and his subsequent indictment on a charge of receiving stolen property in violation of N. J. S. A. 2A:139-1. On the morning of January 4, 1970 a call was received at Clifton police headquarters from a woman who identified herself as Mrs. Karen Crevina. She reported that her husband, the defendant, had been stealing merchandise from various stores over a period of several months. An appointment was made for her to come to the police station that afternoon. She arrived at the appointed hour with her mother. She was, in fact, defendant’s wife.

After questioning she willingly signed a statement that her husband had been stealing merchandise from various stores since April 1969, and that on one occasion she had assisted him to do so. She further stated that the stolen merchandise was then in an apartment which she and her husband shared in Clifton, and that she wished to “turn over” the stolen property to the police. After signing that statement she also signed a paper stating that she voluntarily came to the Clifton police headquarters “with information concerning the stolen clothing which is now in my apartment,” and made “a request that Detectives William Vander Brink and William De Vos remove the stolen clothing from my apartment.”

Thereupon the above-named detective, without obtaining a search warrant, accompanied Mrs. Crevina and her mother to the apartment. Mrs. Crevina unlocked the door and they all went in together. She then led them to the bedroom where she took numerous items from the bedroom closet and placed them on the bed to display them to the police. Many of the items still retained their price tags and consisted chiefly of men’s and women’s wearing apparel.

Although a police witness testified that when defendant’s wife came to police headquarters on January 4, 1970 she stated that she did so because her conscience had been bothering her to the extent that she could not sleep, her husband testified at the hearing on the motion to suppress that they had a heated argument at 2 a.m. on January 4, 1970 about an alleged serious marital offense on his part. At the request of defense counsel, and with the consent of both defendant and his wife, she was also allowed to testify at the hearing. She confirmed defendant’s testimony and said that her purpose in going to the police was really “to get even.”

Neither party has cited a New Jersey case directly on point, but defendant has cited several cases which appear to turn on the question of the motivation of the spouse who voluntarily consents to the search of an apartment occupied jointly by husband and wife. Thus, he emphasizes People v. Carter, 48 Cal. 2d 737, 746, 312 P. 2d 665, 670 (Sup. Ct. 1957), in which the court stated:

When the usual amicable relations exist between husband and wife and property seized is of a kind over which the wife normally exercises as much control as the husband, it is reasonable to con-elude that she is in a position to consent to search and seizure oE property in their home.

Defendant also stressed In re Lessard, 62 Cal. 2d 497, 42 Cal. Rptr. 583, 587, 399 P. 2d 39, 43 (Sup. Ct. 1965), where the court said:

In the husband’s absence, the officers could reasonably conclude that the wife could properly consent to a search of the property in the home; petitioner’s present allegation of an “estrangement” between them does not destroy the consent. * * *

Defendant further points to Kelley v. State, 184 Tenn. 143, 197 S. W. 2d 545, 546 (1946), in which the Supreme Court of Tennessee ruled that a wife who is angry at her husband and hostile in her attitude towards him does not have “authority to waive rights.” Finally, defendant cites Cofer v. United States, 37 F. 2d 677 (5 Cir. 1930), which holds that a wife who allowed law enforcement officials to search the home of the wife and her husband was without authority to bind her absent husband by waiving a legal warrant or consenting to an unauthorized search.

It is interesting to note that most of those cases relied on by defendant, in addition to discussing the spouse’s hostility, also refer to a waiver by a wife of her husband’s rights or to a consent to a search and seizure by a wife in behalf of her husband arising out of such hostility. However, this court is of the opinion that we are not here dealing with such a waiver of another’s rights or a consent in behalf of another, but rather with a written consent given in the wife’s own behalf as an occupant of the apartment. In that consent the wife specifically requested the police to remove the alleged stolen articles from her apartment, and accompanied them there for that purpose.

Neither counsel has cited a New Jersey precedent on this subject, but the court is of the opinion that it should consider State v. Hagan, 99 N. J. Super. 249 (App. Div. 1968). In that case it was held that when a “co-owner” of premises consents to a search thereof, the fruits of the search are admissible in evidence in a criminal prosecution against his non-consenting co-owner. Although that case did not involve a husband and wife, it must be considered as most persuasive since it dealt with a man and women living together in an apartment.

In a Rhode Island case, State v. Cairo, 74 R. I. 377, 60 A. 2d 841 (Sup. Ct. 1948), a wife permitted a search of the cellar of a house and store owned jointly by herself and her husband. In upholding the validity of such search as against the husband, the court said:

Therefore, the question as to whether Mrs. Cairo could give such permission as agent of her husband, so as to bind him by her action, is not involved in this case because there is evidence that in granting permission io malte the search complained of she was not acting as agent for her husband but in her own right as a joint owner and occupant of the premises. [60 A. 2d at 845]

This court is of the opinion that it must give great weight to Roberts v. United States, 332 F. 2d 892, 896 (8 Cir. 1964). After referring to Cofer v. United States, supra, which held that the wife was without authority to bind her absent husband, the Eighth Circuit said:

We hold * * * lliat the right of the wife here to enter the home which was in her possession and control cannot be seriously questioned and that her invitation to and authorization to the officers to enter and search was an outgrowth thereof. It is not a question of agency, for a wife should not he held to have authority to waive her husband's constitutional rights. This is a question of the wife’s own rights to authorise entry into premises where she lives and of which she had control. Additionally, the District Court’s conclusion that there was nothing “unfair, unreasonable or oppressive” about the search and seizure is soundly based. There is nothing in the record to indicate that Mrs. Roberts did no,. give her consent voluntarily * =■■ * [Emphasis supplied]

Although defense counsel has not raised the point in his brief, the court has also considered the relevance of N. J. S. A. 2A:84A—17(2) and N. J. Rules of Evidence, Rule 23(2) to this matter. That statute and the rule provided in part that “the spouse of the accused in a criminal action shall not testify in such action * * * unless such spouse and the accused shall consent.” The public policy underlying the statute is to protect and encourage free and uninhibited communication and confidence between husband and wife, and to protect “the sanctity and tranquility of the marriage relationship.” State v. Briley, 53 N. J. 498, 505 (1969). It undoubtedly erodes such policy to permit police to conduct a search, whether with or without a warrant, based upon one spouse’s disclosure against another. However, since the statutory privilege extends only to testimony, it would be judicial legislation for the court to attempt to expand it to the factual situation found in this case.

’ Further, the court is not unmindful of Evidence Buie 28, of which provides that “no person shall disclose any communication made in confidence between such person and his or her spouse unless both shaLl consent to the disclosure.” On the question as to whether Evidence Buie 28 applies herein, reference should be made to Evidence Buie 2, which deals with the scope of those rules. Evidence Buie 2(1) states that the provisions concerning “Privileges” (Evidence Buies 23 to 40) “shall apply in all cases and to all proceedings, places and inquiries, whether formal, informal, public or private, as well as to all branches of government and by whomsoever the same may be conducted, and none of said provisions shall be subject to being relaxed.”

There is no doubt that Evidence Buie 2(1) is apparently very broad as to the extent of coverage concerning a privilege. However, is it so broad as to extend to this case where a wife voluntarily appeared at a police station at a time when there was no prcceeding or inquiry of any kind existing against hex husband? The court thinks not because a rule of evidence must be deemed to apply to some type of a proceeding or inquiry, even though it be an informal one, and there was no such proceeding or inquiry in existence in this case. If this privilege rule were to be extended to a situation such as this, police could not even allow a wife in whose home, which she shares with her husband, contraband property is located, to purge herself of guilt by voluntarily reporting such fact to the police. Furthermore, if Evidence Rules 2(1) and 28 were to be thus applied, police might be foreclosed from action against a criminal merely because they listened to a voluntary statement from his spouse who implicated him by gratuitously divulging a confidential communication. In short, the Court is of the opinion that despite the fact that Evidence Rule 2(1) is broad on its face and Evidence Rule 28 refers to “disclosure,” it must be remembered that these rules are part of a general subject known as New Jersey Rules of Evidence, and should therefore be applicable only to disclosure by way of evidence in the nature of testimony of a spouse as a witness.

For all the foregoing reasons, the motion to suppress is denied and the prosecutor should submit an order accordingly.


author: Vast Soever, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. DONALD A. LANAHAN, DEFENDANT-RESPONDENT.
    Burlington County Court Law Division
    Decided May 1, 1970.

      Mr. Dennis J. Quinn, Special Deputy Attorney General, for appellant (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. Joseph F. Polino for respondent (Mr. James Logan, Jr., attorney).
   Vast Soever, J. C. C.

This is an appeal taken by the State from an interlocutory order entered in the Borden-town Township Municipal Court on March 23, 1970, wherein that court ordered stricken from the record all testimony relating to a breath test conducted of the defendant in a case charging violation of N. J. 8. A. 39:4-50 (a) since there was no testimony presented establishing that an inspection of the breathalyzer instrument was made subsequent to defendant’s test conducted on apprehension.

There was a stenographic record created at the municipal court level and the appeal is prosecuted based thereon.

The interlocutory order entered by the municipal court was followed by the direction that an appeal be taken therefrom by the State under B. 3 :24, and reserving to that court jurisdiction for further hearing of the said matter following a determination of the appeal from the interlocutory order.

The facts disclosed by the record are that on February 19, 1970 defendant Lanahan was arrested at 12:01 a.m. in Bordentown Township and charged with violation of N. J. S. A. 39:4^50 (a). On March 23, 1970 the alleged violation proceeded to trial before the Municipal Court of Bordentown Township at which time the arresting officer testified that defendant was involved in a rear-end type collision with another vehicle. Based upon the officer’s observation, he concluded that defendant was under the influence of alcoholic beverages and therefore issued a summons charging him with violation of N. J. 8. A. 39:4-50(a).

State Trooper Boylan observed defendant when he was conducted to the Bordentown State Police Station following his arrest. Based upon his observations, the trooper testified that defendant was under the influence of intoxicating beverages. He further testified as to his qualifications as an operator of the breathalyzer instrument and that he performed two breath tests of defendant, resulting in readings of .17% blood alcohol at 1:15 a.m. and .16% blood alcohol at 1:30 a.m.

State Trooper Newbauer, whose qualifications as a breath-testing coordinator were stipulated, testified that on February 11, 1970, eight days before the tests were performed on defendant, he checked the breathalyzer instrument in the State Police Station at Bordentown and found the instrument to be in proper working condition. He further testified that on March 1, 1970 the Division of New Jersey State Police amended its procedure to provide for the inspection of these breathalyzer instruments every two months instead of every month as had been done theretofore. He further testified that, in his opinion, this bimonthly inspection was all that was needed or required to insure that the instrument was in proper working order; that unlike the drunkometer, the breathalyzer requires no chemical titration, and therefore a monthly inspection is unnecessary. On the municipal court trial date, March 23, 1970, the breathalyzer instrument in question had not been inspected subsequent to the defendant’s test on February 19, 1970, in accordance with the new directive on inspections of that type instrument.

Aside from eliciting the date of the last inspection of the breathalyzer instrument (February 11, 1970), defense counsel conducted no further cross-examination of the State Police breath-testing coordinator and moved to strike all testimony with respect to the breathalyzer tests. The motion was contested by the State. The municipal judge granted the motion, with the understanding that the State would file an immediate appeal from that order under B. 3:24 and that following the determination of that appeal the municipal court would proceed to conclude the hearing on the complaint in a manner compatible with the appellate court’s ruling.

The central question here, then, is the admissibility of the results of the breathalyzer tests performed on defendant on February 19, 1970, in view of the testimony that following a change in the administrative order, testing of the breathalyzer instrument was to be conducted bimonthly rather than monthly, and that by reason of the chronology of the events herein, the prior inspection of the instrument was performed some eight days before defendant’s arrest and testing, and the subsequent inspection of the instrument had not been conducted at the time of trial on the complaint before the municipal court.

The record is devoid of any suggestion, evidence or proof, or circumstance in any way tending to establish inaccuracy or malfunction of the instrument arising out of the mere passage of time. Further, defense counsel does not direct the court to any scientific treatise, document or authority on the fallibility of the instrument unless subjected to inspections for accuracy and performance within any designated period of time, short or long. The defense merely suggests that since custom or practice had been to inspect this type of instrument monthly and to recite the results of inspections made before and after the test performed on defendant then on trial, as an introduction to the presentation of the results of the test into evidence, the results of the tests performed upon defendant are inadmissible because the case proceeded to trial prior to the time the inspection was made of the instrument subsequent to the test, even though a prior inspection of the instrument had been made only eight days before defendant’s test and had established that the instrument was then in proper working condition.

There is no contention that the time element itself, either before or after, has any significance or relation to the asserted question of admissibility, but merely that both an inspection report before and after the test in question are prerequisite to admissibility.

The court fails to see the logic to the contention that two reports are the criteria for admissibility without some reference to the element of time. If an inspection report reveals proper working order a few days prior to the test of defendant, would not the concern for reliability of the instrument be more nearly met than by merely the existence of a before and after inspection report without regard for the intervening time period.

The Supreme Court, in State v. Johnson, 42 N. J. 146 (1964), stated that the criteria for admission of the results of a defendant’s testing should be proper administration of the test, which includes full proof that the instrument was in proper working order, the operator qualified, the test given correctly, and consent by defendant. There is no .question here about any of those elements except the proper working order of the instrument. There is nothing in support of defendant’s argument against admissibility except the deviation from custom of presentation of a before-and-after inspection report and the reliance here entirely on the one inspection report eight days before defendant’s test. The procedure herein was not by design, but by reason of the facts heretofore outlined.

To deny admissibility on this argument alone, and in light of the record which contains not a scintilla of proof or reference in support of defendant’s contention, and in the face of the testimony of the testing coordinator, whose qualifications have not been questioned and that experience has demonstrated that this particular type instrument has very little malfunctioning, would, in the opinion of this court, be speculative and arbitrary, establish rules of exclusion without reference or relation to a reasonable premise, and be artificial. I find nothing in the facts in the record, or in the decisional law, nor have I been presented with anything by counsel, which would, in my opinion, justify such an arbitrary or artificial rule of exclusion.

The requirement of inspection is only that it be done periodically, and this I conceive to be a relative term which relates to what is reasonable as may be determined by either experience or inherent quality or factors in the instrument in question as would bear upon its adequate reliability for consideration of test results in matters of this kind. State v. Johnson, supra; State v. Miller, 64 N. J. Super. 262 (App. Div. 1960).

There is nothing in the record, nor does the defense counsel point to any scientific data, treatise or authority tending to indicate any inherent fallibility of the instrument of this type which, when compared to the element of time, would suggest that the inspection here was lacking in such periodic quality as would foreclose from consideration the admissibility of the results of the tests of this defendant together with all the other relevant evidence on the charge in question.

The record does reveal, on the other hand, that the change in the time period for inspections arose out of, among other considerations, the experience of accuracy and reliability of this instrument and the lack of malfunctioning, and that its process or functioning does not depend upon titration as other instruments do, which instruments are inspected more often.

For the reasons heretofore stated, this court concludes that under the circumstances presented in the record of this case, the results of the breathalyzer tests performed upon defendant are admissible into evidence. The interlocutory order appealed from is respectfully reversed. Counsel shall submit an appropriate form of order.


author: SullivA-K, S. J. A. D. B. D., Lewis, J. A. D.

text:
    STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT, IN THE INTEREST OF B. D., A JUVENILE, JUVENILE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 6, 1969
    Decided May 16, 1969.

      Before Judges Sullivan, Eoley and Lewis.

      Mr. Donald II. Miniz argued the cause for the juvenile-appellant.

      Mr. David 8. Baime, Assistant Prosecutor, argued the cause for complainant-respondent (Mr. James P. Zazzali, Assistant Prosecutor, oí counsel and on the brief; Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

SullivA-K, S. J. A. D. B. D.,

juvenile-appellant herein, appeals from an adjudication by the Juvenile and Domestic Relations Court of Essex County finding that he committed acts of juvenile delinquency involving two homicides.

D., then age 16, was tried in September 1965. At the conclusion of his trial, the court determined that he was “guilty of the homicides” charged in the complaint. D. was committed to Menlo Park for diagnostic evaluation. After receiving the diagnostic report, the trial court made a determination “that it is murder in the second degree.” D. was committed to the New Jersey State Reformatory at Bordentown for an indeterminate period under the statute.

The record shows that following the adjudication of delinquency, assigned trial defense counsel consulted with the Essex County Legal Aid Association about the prosecution of an appeal on behalf of D. It appears that defense counsel thought that the Legal Aid Association would undertake to prepare appeal papers on behalf of D. and the Legal Aid Association believed that defense counsel would attend to this matter. As a result of this misunderstanding no notice of appeal was filed at that time, and it was not until July 1967, when D. made inquiry to this court about an appeal, that the misunderstanding came to light. Thereafter, applications for leave to appeal as an indigent and for assignment of counsel were filed on behalf of D. On November 14, 1967 this court granted D. leave to appeal as an indigent nunc pro tunc February 3, 1966. DIs trial counsel was assigned to prosecute the appeal on his behalf.

A summary of the essential facts as presented by the State is as follows.

On June 4,. 1965, at about 1:45 a.m., the police were called to 170 Charlton Street, Newark, where they found the body of Y. S. lying on the sidewalk. The police observed a stab wound in her chest. She was pronounced dead by a doctor who was summoned to the scene. Later that same morning, at about 5 :10 a.m., the police were summoned to 150 Charlton Street where they found the body of R. B. tying in a vacant lot. He was also pronounced dead at the scene. The policemen testified that there were numerous stab wounds in B.’s chest and back, lacerations on his face and forehead, and a wound on the back of his head. One of the officers found a piece of concrete tying nearby, which he testified contained traces of blood and hair on it. The officer described the piece of concrete as “maybe eight inches long” and “odd shaped.” He was unable to approximate its weight. The piece of concrete was produced at trial and a laboratory report of an examination of it by Edel Laboratories, stipulated in evidence, stated that the piece of concrete was “stained within human blood that reacts for human blood, type ‘O’ (International Nomenclature). Short black hairs are also present.”

An autopsy was performed on both bodies on June 4 by Dr. Albano, Essex County Medical Examiner. His examination disclosed that y. S. had died of a stab wound in her chest which partially severed the ascending aorta and extended through the right side of the pericardial sac. The stab wound extended downward and backward from the victim’s left t.) the right. Based on the direction of the wound, Dr. Albano expressed the opinion that probably the assailant was righthanded. He also found a stab wound on the right side of the upper lip which was some five-eighths of an inch in depth.

The autopsy of R. B. disclosed five stab wounds on the left side of the chest. The wounds extended backward and downward from the left to the right. The autopsy also disclosed two stab wounds in the victim’s back. Dr. Albano stated that, except for one of the hack wounds, the direction of the stab wounds indicated a righthanded assailant.

The autopsy also disclosed several bruises and lacerations on B’s face and forehead, which Dr. Albano thought could have been caused by a fall or by some kind of a blunt instrument. Dr. Albano thought that these wounds “were not severe enough to cause any effect on the man’s actions.” Dr. Albano testified that he found no wounds or bruises on the back of B.’s head and, in fact, found no wound at all above the hairline, the only head wounds being the aforementioned lacerations and bruises on the victim’s face and forehead. A toxologieal report showed that B. was “quite drunk” (.237%) at the time of death.

Detective George Alford, a member of the Newark Homicide Squad assigned to the ease testified that during the course of his investigation he received information from an informant that B. D. had committed the two homicides. On June 10, 1965, he and Detective Miaño went to the home where D. lived with his mother, brought D. to police headquarters and questioned him for more than half an hour about the two homicides. D. who was 15 years old at the time (he became 16 on June 29, 1965), denied having any knowledge of the crimes. Alford did not believe D., but sent him home. About two weeks later he met D. and a friend on iho street, brought them to police headquarters, and again questioned D. about the homicides. D. was then sent home. Alford admitted that during the interrogations he mentioned some of the details of the crimes to D., including the information that the two victims had been stabbed to death and that the man had been hit by a rock. However, he denied that he showed D. photographs of the scenes of the crimes and of the victims until August 10, the da'ie the confessions hereinafter referred to were obtained.

Two days later D. and his mother came to police headquarters by appointment and a polygraph test was administered to D., with the verbal consent of his mother. During the test D. was again questioned about the homicides oil Charlton Street. Answering the polygraph questioning D. said that he had heard some of his friends talking about the homicides. After the test, D. was allowed to go home.

On August 10, 1965 D., who'was then at the Youth House in custody on a juvenile charge unrelated to the homicides, was visited by Alford, who told D. he had checked out the information given during the polygraph test and found it to be untrue. On this date, Alford and Detective Rowiuski took D. from the Youth House and drove over to Charlton Street. D. was confronted with information the police had about tho crimes and was told that the polygraph showed he was lying. While they were parked at the scene, D. told Alford that he wanted to tell about the incidents.

At this point, Alford told D. not to say anything else, that he didn’t have to tell anything if he didn’t want to unless he had a lawyer or his mother present. D. said that he didn’t need his mother, that he just wanted to tell about it. They drove back to police headquarters where D. gave an oral statement. Alford then took D. back to the Youth House where written statements were taken from him as to the two homicides. Present at the time were Detectives Alford and Rowinski from the Homicide Squad, Detective Rissler from the Essex County Prosecutor’s Office, Detective Bongiovanni from the Youth Aid Bureau, and Assistant Prosecutor O’Keefe.

D. was advised of his rights as set forth in printed forms of preambles which he signed. Two statements were thereafter taken from him in question and answer form, in which he admitted committing the two homicides. The questions and answers were transcribed by Detective Rowinski. D. read the statements over, had a minor correction made on one, and signed them. The taking of the statements encompassed a period of about two hours. In the statements, D. said that he killed B. first. He said he had had an argument with his sister about his supper, which she refused to fix, and he had to fix himself. He left his house about 9 p.m. and was walking along Charlton Street and saw a man walking on the other side of the street. D. crossed the street and started walking behind him. The man turned around, looked at D. and then turned back and started walking again. D. said that he came up behind the man, picked up a rock and hit him with it on the back of the head and just kept hitting him. “Then I went back and I stabbed him. He was laying on the ground. T just kept stabbing him. I don’t know how many times.”

After stabbing the man D. stated that he continued walking along Charlton Street with the knife in his hand and came upon a woman who was walking ahead of him. As he came abreast oC her D. stated that he “slung my left arm back and the knife hit her somewhere around her neck and chest. Then I started running.” D. said that after the stabbings he went in the Harlem Bar which was just around the corner and stayed for around half an hour. While in the bar, he spoke with a lady and told her he had a fight with a man and had stabbed him and had also stabbed the woman who was with the man. D. stated that he and the lady left the bar together and he then went home.

The State also presented the testimony of the detectives and the assistant prosecutor, who were present at the Youth House, that D. had been fully advised of his rights and had given the statements voluntarily without any threats, force, or compulsion. In particular, the assistant prosecutor testified that he was present at the Youth House not only as a representative of the prosecutor’s office but also to protect D.’s rights. He said that he went over the preamble with D. word by word, not merely reading it but explaining it to him.

The trial court admitted D.’s confessions into evidence over objection, finding that they had been voluntarily given; the court stating that it had been impressed with the testimony given by the assistant prosecutor. At the conclusion of the State’s entire case, the court denied D.’s motion to dismiss the complaints ruling that the confessions, together with other proofs presented by the State, were sufficient to establish a prima facie case.

B. D., testifying on the issue of voluntariness and in his own behalf, said that in addition to the interrogations detailed by Detective Alford there were two other occasions on which he was summoned to police headquarters and questioned about the murders, so that August 10 was actually the sizth time he had been questioned by the police. D. said that although he did not commit these crimes he finally admitted to them to get the police off his back, that he was sick and tired because every time he turned around he was looking at them and “had to go down to them,” and that “if a person bothers you long enough you would do just about anything to get rid of him.” D. said that he pieced together the details of the crimes as set forth in his two confessions from what Detective Alford had told him about the crimes, the photographs of the scenes of the crimes and the victims which had been ezhibited to him by Alford, and his imagination. In particular, D. testified that he had included the detail about going into the Harlem Bar and telling a lady there that he had stabbed two people in his confessions because Detective Alford told him that the man who had committed the stabbings had done that.

D. also said that on August 10, when the police took him from the Youth House he was told that he wouldn’t get away with it, that he was scared and, at police headquarters, Detective Alford kicked him in the leg several times.

Both D. and his mother testified that he was and had always been lefthanded. The Social Service Report of January 4, 1963 marked in evidence states that “B. D. is left-handed.”

At the conclusion of all of the testimony, the court rendered its decision that it was satisfied that the confessions had been voluntarily given, and that “the facts of the State’s case were substantiated by such confession.” As heretofore noted, the court found that defendant had committed the two homicides.

This case was tried in 1965 prior to the landmark decision in State in the Interest of Carlo, 48 N. J. 224 (1966). We conclude that the principles set forth in that decision here control and that the confessions made by D. should have been excluded from evidence on the ground that it does not adequately appear that they were obtained by methods consistent with due process and which vouch for their trustworthiness. In addition, we conclude that the confessions, even if admissible, were not corroborated within the requirement of State v. Lucas, 30 N. J. 37 (1959), and were insufficient to establish a prima facie case.

It is true that the proofs indicate that D. was advised of his rights and told that he could have a lawyer and his mother present if he so desired. Assuming D. was told these things, this did not render his confessions voluntary in the constitutional sense. The proof is undisputed that over a two-month period D. was questioned repeatedly by the police who did not believe his protestations of innocence. It was only on the fourth (Detective Alford’s testimony) or sixth (D.’s testimony) interrogation that he finally told the police that he had committed the homicides. D. said that he finally admitted to crimes he did not really commit because every time he turned around the police were at him and bringing him down to police headquarters. The confessions in question were taken in a room in the Youth House. Present were five law enforcement officers and I)., who had just passed his 16th birthday. As pointed out by Chief Justice Weintraub in his concurring opinion in Carlo:

* * * [libere should be every assurance that the juvenile was not led into a false account, and to that end, at least if the offense is a serious wrong, the police should see that a parent or soole relative or friend is present, if it is at all feasible, to allay the fear or pressure the youngster could feel in strange hands and a strange setting. And of course a parent cannot be excluded because the infant wants it that way; the decision is the parent’s and not the child’s. * * * Ancl because of tbe ease with which some boys may yield to suggestion, I would insist upon a quantum of corroboration we do not now demand with respect to confessions of adults. * * * 48 N. J. at p. 245.

The efforts of the assistant prosecutor to explain to D. what his rights were cannot he considered a substitute for legal or parental representation. Under the circumstances here presented, having his constitutional rights explained to him was not enough. There is no competent evidence that any effort was made to communicate with D.’s mother and have her present during the confrontation so vital to the juvenile’s interests.

It is significant that in the instant case, a material part of D.’s confession as to B. seems to be at odds with the results of the autopsy performed by Dr. Albano. D.’s confession states that he came up behind B., picked up a rock and hit him with it on the back of the head and kept hitting him. This- is consistent with the testimony of the police officers that B. had a wound on the back of his head and that they found a piece of concrete lying near B.’s body with blood and strands of hair on it. However, the autopsy showed that B. had no such wound. Indeed, there were no wounds above the hairline, the only injuries to the head being lacerations and bruises on the face and forehead. This apparent disparity cannot be overlooked, since it not only raises a question as to the veracity of the confession, but also indicates that D. may well have yielded to suggestion.

We are not unmindful of the Laboratory report as to the piece of concrete. However the blood-could have come from B.’s stab wounds. (The police testified that the piece of concrete was found alongside B.’s body by the right shoulder.) The report, while it identifies the blood on the piece of concrete as human, does not do so with the short black hairs.

The autopsy of both victims disclosed an additional item of importance. The fatal stab wound on V. S.’s body, and six of the seven stab wounds on E. B.’s body, were downward and backward and from the victim’s left to right. Dr. Albano said that this indicated a righthanded assailant. The evidence in the case is undisputed that B. D. is and has always been lefthanded. His confession as to V. S. states that he stabbed her with a backward swing of his left hand. Since his confessions set forth that after stabbing B. he continued walking along the street with the knife in his hand until he overtook the woman, the clear inference is that he claims he also stabbed B. with the knife in his left hand.

All of the foregoing, taken together, creates such serious doubts as to the voluntariness and trustworthiness of these confessions, that we conclude they should have been excluded.

Aside from the question of voluntariness, we are satisfied that the confessions lacked any substantial corroboration and, standing alone, were insufficient evidence of guilt. It was undisputed that the two victims had been stabbed to death. However, the only proof in the case to connect D. with the killings was his own confessions. There was no other implicating evidence. In State v. Lucas, supra, 30 N. J. at 56, it was held that where the State proves the fact that a crime was committed and that the defendant had confessed the commission of such crime, the State must also introduce independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness. (As heretofore noted, Chief Justice Weintraub in Carlo would insist on a quantum, of corroboration of a juvenile’s confession not now demanded with respect to confessions of adults.)

In Lucas, the court found the necessary support in the independent evidence presented by the State, which verified important details of the defendant’s confession. To the same effect is State v. Ordog, 45 N. J. 347 (1965), where commission of a crime having been shown, the court found a confession was sufficient to sustain a conviction since other evidence in the case corroborated many of the details contained in the defendant’s confession. The court noted that these details would have been known only to a participant in the crime and there was absent any explanation of how the defendant would have had knowledge of them except by his own observations as a participant.

The State argues that it has met the test outlined in Lucas because D.’s confessions are consistent with the known facts about the homicides as contained in the State’s independent proofs. Actually, D.’s confessions contain practically no verified details other than the statements of having stabbed the two victims and, as we have previously noted, in one material regard, D.’s confession as to the killing of B. seems to be at odds with the autopsy report. However, it is undisputed that D. was told many of the facts of the case by Detective Alford and was shown photographs of the scenes of the crimes and the bodies of the victims. D. himself testified that he pieced together his confessions from these sources and his imagination. There is no indication that Alford withheld material information concerning the killings from D. so that he could test the veracity of any statement made by D. See: State v. Lucas, supra, 30 N. J. at 48.

The result is a situation where the record contains a rational explanation of how D. knew the facts of the killings as set forth in his statement so that no real inference of trustworthiness can properly be drawn from any consistency shown. See: State v. Ordog, supra, 45 N. J. at 364.

The judgment of the juvenile court is reversed and the cause remanded for further proceedings not inconsistent with this opinion. See: State v. Serrano, 53 N. J. 356, 360 (1969).

Lewis, J. A. D.

(dissenting). With deference to the opinion of the majority court, I am constrained to vote for' an affirmance and, accordingly, note my reasons for • dissenting.

After a study of the record, 1 am satisfied that D’s confessions were voluntary and properly admitted in evidence and that the State’s proofs were sufficiently corroborative of the critical facts and circumstances to sustain the trial court’s finding of guilt.

Two homicides were committed in the same area and within a relatively short time. The statements that D. signed at the Youth House were typed by Detective KowinsM, who testified that they were “exactly” as given to him.

As to decedent It. B., D. was requested to “tell us as best as you can remember what you did on that day [June 4, 1965].” He replied :

II was about 8:00 in the night and I asked by sister, M. to fix me some supiier. So, she wouldn't fix it so I fixed it, myself. She said I had better fix it myself cause she wasn’t going to fix it. So I Sx it myself and I told her don’t give me no smart answer. Then I went in my room and I got, dressed. Then 1 left and walked out the house. It was about 9:0G then. I figured I’d go out for about an hour til 10:00. I wasn’t mad at nobody then. So I walked down Montgomery Street. I saw a lady and I didn’t pay no attention to her. She was a short lady and she was kind a drunk, I say intoxicated. I -walked down to Prince Street and then I walked through Prince Street to Spruce Street and I walked up Spruce Street to Charlton Street and I walked through Charlton Street. I was walking from Spruce Street towards Montgomery Street. When I was walking I was about a third of the way into the block and saw this man walking on the other side of the street. * * s
So I looked at him and kept on walking and looking at him. I didn’t have nothing in particular in my mind. Then I just turned around, walked across the street and started walking behind him. He was going toward Spruce Street and I was behind him. Then he must have heard me coming and he turned ai'ound and looked at me. Then he turned back around and started walking Then I picked up a rock aud hit Min with it on the back of the head and I just kept on hitting him. Then I started to walk away. Then I took a knife outta my pocket. Then I went back and I stabbed Mm. He was laying on the ground. I just kept stabbing him. I don’t know how many times. After I stabbed him in the back he raised up on his elbow and I just kept on stabbing him some more. I don’t know what I did it for. I don’t know what I did it for. I felt I had the urge to do something. Then I just walked away and I left the man laying there and I still had the knife in my hand. Then I was walking and I was going towards Spruce Street, and I saw a lady and I swung my arm back and I started running. * * *

As to decedent Y. S., D. narrated the events thusly:

I don’t know tbe woman’s name, but after I had beat up and stabbed a man in an empty lot on Charlton Street, between Montgomery Street and Spruce Street, I walked down Charlton Street towards Spruce Street. I saw a woman walking towards Spruce Street on Charlton Street.. She was about three or four doors in from Spruce Street, and T had my knife in my hand and when I was about shoulder to shoulder with her, I slung my left arm back and the knife hit her somewhere around her neck and chest. Then I started running.

In considering whether the method used in obtaining D.'s confessions can be squared with the due process of law commandments of the Fourteenth Amendment, we should, as indicated in State v. Smith, 32 N. J. 501, 555 (1960), certiorari denied 364 U. S. 936, 81 S. Ct. 883, 5 L. Ed. 2d 367 (1961), “look at the question in the light of the age, intelligence and experience” of the particular juvenile “as well as of the period of time involved and how that time was utilized.” See Haley v. State of Ohio, 332 U. S. 596, 68 S. Ct. 302, 92 L. Ed. 224 (1948).

It has been said that the “Determinative factors include not only illegal detention but its duration, the relentlessness of interrogation, disregard of the rudimentary necessities of life, the deprivation of counsel, deception respecting the accused's constitutional rights, the accused's age, education, emotional characteristics, and experience in criminal matters.” People v. Price, 24 Ill. 2d 46, 57, 179 N. E. 2d 685, 691 (Sup. Ct. 1962), quoted in People v. Hester, 39 Ill. 2d 489, 237 N. E. 2d 466, 473 (Sup. Ct. 1968), certiorari granted April 7, 1969, 394 U. S. 957, 89 S. Ct. 1310, 22 L. Ed. 2d 559, wherein a boy, 14 years of age and of below normal intelligence, confessed to the sexual assault and murder of a schoolteacher; she had been stabbed repeatedly in the side and chest. The confessional statement, taken at the office of the State’s Attorney in the presence of the assistant State’s Attorney, a court reporter and a police sergeant, was substantially identical to statements previously given to the investigating officers. The Supreme Court of Illinois, after discussing and distinguishing Haley and other related decisions, concluded that defendant’s confession was not coerced and was properly admitted in evidence.

The record before us reveals that the police investigation led to D. who, at first, not only denied any knowledge of the crimes but refused to give an account of his actions; he was disbelieved by the police. He later told a “story” which was checked out and found to be false. While D. was riding with Officers Alford and Rowinski on August 10, 1965, he was advised that the information he had given was untrue and, as they approached the scene of the murders, he “pointed” to the lot stating that “he wanted to tell about it, tell what happened.”

The statements in question were taken at the Youth House in the early afternoon of the same day (between 1:20 and 3:45 p.m.) during which time D. was served lunch. It is undisputed that he was advised as to his constitutional rights. The assistant prosecutor (who had had 22 years prior experience with the FBI) testified that he was there to protect defendant’s rights as well as those of the county. He stated further that the preambles were read in detail and explained “line by line,” that prior to signing the statements D. read them out loud in their entirety and that the youth “expressed himself understandably and had no difficulty in the language because this was his language, actually.” The evidence suggests that the witness endeavored to discharge his responsibility “to see that Justice is done” as required of him under Canon 5 of the Canons of Professional Ethics, he did not have the benefit of the salutary admonition enunciated in the subsequent decision of State, in the Interest of Carlo, 48 N. J. 224 (1966), quoted in the majority opinion.

D. gave this testimony:
Q. Rrom 1:20, from the time you came back here [Youth House] and they were present, did anyone assault or threaten you?
A. No, they treated me pretty good. * * *
Q. Well, until the statements were fully completed, is that correct?
A. Yes.
Q. Incidentally, is everything that Detective Reitzel said, when he got here, the truth?
A. Reitzel, O'Keefe and the other guy were telling the truth. Alford wasn’t telling the truth altogether.

The boy’s parents were separated. According to his testimony, he was living with his mother; he qualified it, however, by saying: “Yes, but I wasn’t home. I didn’t stay home, that much. I spent a lot of time some place else.” In the New Jersey State Diagnostic Center report, it is noted that D. viewed his mother “as an intolerant, punitive figure.” It is thus understandable why he said that he did not “need” his mother, and it is unlikely that her presence would have given him any consolation or support or would have had a meaningful influence or effect upon him.

The Diagnostic Center report reflects D.’s background which, while it has no bearing on his guilt or innocence, is noteworthy in the appraisement of his intelligence and experience.

Under “Presenting Problem,” his six confrontations with the law since 1962, including charges of atrocious assault and battery, breaking and entering and three larceny offenses, are listed. The “Psychosocial Summary” observes that he was examined by a psychologist who “felt that B. has severely overstrained brittle control over intense hostility and was seen as potentially homicidal in relation to both peers and adults,” and that a psychiatrist reported the boy “shows a marked amount of hostility toward any authority figures.” In the “Psychological Summary” D. is referred to as “an individual of high Average intelligence with an intellectual potential in the Bright Normal range. * * * patient also has violent and sadistic aspects. * * * His responsivity seems to be canalized into destructive impulsivity and provocative belligerence.” The “Prognosis” concludes, “The overall picture seem to be somber as to the possibilities of complete rehabilitation at least in the near future.”

Moreover, the independent, assertive and strong will of D. is illustrated by the fact that during both the prosecutor’s summation and offer of the confessional statements in evidence, he was repeatedly interrupted by the youth, who was instructed by the court to “be quiet.” Notwithstanding the restraining efforts that were made, D. persisted with his disturbances while the trial court was ruling on the motion, provoking the judge to comment, “I am not going to be interrupted any further by him.” The record also reveals an outburst by D. “in several obscene terms” at the conclusion of the court’s ruling.

It therefore seems clear that the police were not dealing with “an easy victim of the law,” the characterization applied to the juvenile in Haley v. State of Ohio, supra, 332 U. S., at p. 593, 68 S. Ct., at p. 304, 92 L. Ed., at p. 228. Note also State, in the Interest of Carlo, supra. The challenged confessions in those cases were held to be inadmissible.

The murder confession in Haley was by a youth younger and less experienced than D. It was obtained after five or six hours of police questioning in relays through the “dead of night.” Haley was then held incommunicado for over three days during which time his mother, and a lawyer she had retained, were refused access to him. The Carlo court was concerned with two boys, aged 13 and 15 respectively, who had allegedly caused the death of a girl aged 10. They were taken to a precinct police station for interrogation and their midnight confession was obtained under circumstances “quite similar to those described in Haley v. Ohio” (48 N. J., at p. 238). The youths testified that their confessions, in what appeared to be the language of the typist, were the product of “fear and fatigue” caused by the extensive grilling by the police. Furthermore, the parents of the boys attempted, but were not permitted, to see their sons during the interrogation.

In the instant matter the statements were taken at the Youth House, a place familiar to D., and in the presence of a detective from that agency. As previously noted, the statements were not in the language of the typist, but rather were D.’s verbatim narration of the events. They were not the product of fatigue, fear, panic, prolonged and relentless grilling, or coercive tactics demonstrating official callousness overpowering the will of the confessor. There was no deception respecting the accused’s constitutional rights nor any disregard of rudimentary necessities of life. The law enforcement officers did not ride roughshod over a parent-child relationship in order to obtain the confession, albeit they might have taken the added precaution of insisting upon the boy’s mother being present. It is apparent, however that D. was alert and sophisticated, and knowledgeable in the ways of crime and criminal procedure way beyond his years. The evidence supports a conclusion that, when D. realized the police knew he was lying, he voluntered to tell what happened and then did so voluntarily and in his own way.

The State’s case on the issue of corroboration was weak but it, nevertheless, appears to be sufficient to demonstrate the trustworthiness of the confessions. As stated in State v. Lucas, 30 N. J. 37, 58 (1959), “Ho greater burden should be required of the State than independent corroborative proof tending to establish that when the defendant confessed he was telling the truth, plus independent proof of the loss or injury.” The court further stated, “But safeguards for the accused should not be turned into obstacles whereby the guilty can escape just punishment.” Ibid.

The autopsy reports established the deaths of the victims, thus supplying the required independent proof of the “loss or injury.”

Although the police, in the course of their routine investigation, made known to D. some of the broad facts as to how the victims were murdered, no one but the perpetrator of the crimes was in a position to recount these descriptive details, of the execution of the murders, which meshed so naturally and logically with the physical evidence that was adduced.

The testimony of the investigating officers as to the conditions of the dead bodies when found, the production of the blood-stained rock, and the evidence supplied by Dr. Albano, who performed the autopsies, substantially buttress the trustworthiness of the confessions.

The alleged discrepancies urged by defense counsel are, in fact, supportive of the validity and truth of his client’s statements. D. said that when he was “shoulder to shoulder” with Y. S., he “slung” his “left arm back” and the knife hit her somewhere around “her neck and chest.” Dr. Albano gave evidence that she died of an ascending stab wound of the chest. There was also a stab wound of her upper lip.

The medical witness also testified that his autopsic examination of E. B. revealed five stab wounds in the left chest, one stab wound ££back of the right chest,” one stab wound “back of the left chest,” and five lacerated wounds of the head. The statement of the accused was that he hit this victim on the back of the head with a rock and “I just kept on hitting him” and while he was lying on the ground “I just kept stabbing him * * * After I stabbed him in the back he raised up on his elbow and I just kept on stabbing him some more.”

Two weapons were used — a rock and a knife. That D. may be left-handed and that the doctor expressed the opinion, in view of the direction and angle of the wounds, that the assailant was probably right-handed are of no moment. In his testimony the doctor also indicated that the stabbing “may have been delivered by a left-handed assailant, if he was standing directly behind him [victim],” and testified further:

Q. Doctor as far as what direction the wounds came, concerning the assailant, would it not depend on whether the vietim was lying down or standing up?
A. That is true, and it also depends upon the relationship of the assailant with the victim.
Q. And when you say it presumably comes from the assailant’s right to his left, that is under che situation where they’re face to face?
A. That’s right, and that’s all I can say.

It is plain from D/s signed statements that the multiple stabbing assaults were not made when he was face to face with either of the victims.

In totality the proofs as to the facts and circumstances appear to lend sufficient credence to the confessions to meet the test of trustworthiness laid down in State v. Lucas, supra, and State v. Ordog, 45 N. J. 347, 364 (1965), certiorari denied 384 U. S. 1022, 86 S. Ct. 1942, 16 L. Ed. 2d 1025 (1966).

To hold that the confessions were inadmissible in evidence and to reverse the judgment of the trial court, even though it be conditional as suggested in the majority opinion—a remand procedure here tantamount to a dismissal of the complaint since additional probative evidence not obtainable in 1965 hardly could be forthcoming four years later — would probably put D. back on the streets of the community to continue exploiting his criminal tendencies. I am convinced that anything short of an affirmance would be a disservice to the juvenile and to society as well.

The following observation of Mr. Justice White in one of the dissenting opinions in Miranda v. Arizona is significantly appropriate. In speaking about the accused in the context of the issues there involved, the Justice said:

* * * £jas so unquestionably been resolved that in each and every case it would he better for him not to confess and to return to his environment with no attempt whatsoever to help him? I think not. It may well be that in many cases it will be no less than a callous disregard for his own welfare as well as for the interests of his next victim. Miranda v. Arizona, 384 U. S. 436, 543, 86 S. Ct. 1602, 1663, 16 L. Ed. 2d 694, 763 (1966).

After considering all of the evidence and bearing in mind the findings of the trial judge, who had the opportunity to hear and see the witnesses, I am persuaded that the totality of the circumstances did not amount to involuntariness or violation of due process.

Accordingly, I would affirm.