State ex rel B. D.

266 A.2d 326, 110 N.J. Super. 585, 1969 N.J. Super. LEXIS 322

• Court: New Jersey Superior Court Appellate Division
• Decided: May 16, 1969
• Status: Published

Opinions

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).