Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
The defendants appeal from convictions of armed robbery in violation of N.J.S. 2 A:141-1 and 2 A:151-5.
On Friday, October 26, 1956, at about 7:45 P.M., two office employees of the Continental Baking Company in Paterson, N.J., Mrs. Georgianna Rippey and Mrs. Florence Borst (since deceased), were about to leave their work when, in a narrow hallway adjacent to a room which contained two company safes, two men, with handkerchief bandannas covering most of their faces and hats pulled down over their ears, accosted them and forced them back into the room. At the time four other employees who had remained at their desks were in the same room. They were Mrs. Ethel Reilly, Mrs. Mary Knerr, Mrs. Adelaide Scherer, and Mr. Joe Stewart Miller. At first some of the witnesses believed the episode to be a Halloween prank committed by some of the company workers. However, it soon became evident that a robbery was taking place. The bandits, described as tall and short, proceeded systematically to tie with rope each of the workers in the room, and induced one of them, Mrs. Knerr, to open a closed safe. The shorter of the bandits brandished a revolver, testified to be a 38 caliber revolver. They took about $1,500 out of the safe and made good their escape.
Subsequently the defendants, James Buffa and Philip Carey, were apprehended, indicted, and convicted for the commission of the crime. They appeal to review the legality of their convictions.
The principal issue in the trial was that of the identification of the perpetrators of the robbery. The defense was that of an alibi on behalf of both of the accused men. The following is a summary of the testimony as it bore on these
issues. Mrs. Georgianna Rippey, one of the women stopped in the hall by the bandits, when asked if she observed what went on after being ordered back into the room, said she was dazed and was unable to give much information. Although she was only three to five feet away from the men, she could not tell what color handkerchiefs they wore, but said that the smaller of the two men had a weapon. The taller man (later identified as the defendant James Buffa by other witnesses) tied her to a chair. She was unable to identify the men who committed the crime. She estimated that the entire episode lasted until approximately 8:45 P.M., although she was not sure.
Joe Stewart Miller, the only male employee working at the time of the robbery, testified that he was sitting at his desk working when the episode commenced. He described the manner in which Mrs. Rippey and Mrs. Borst were pushed back into the room. He stated that he was tied with the others and propped up against a desk. He described the dress of the bandits as follows:
"* * * they both had hats that pulled down close over their heads; close down over their ears. I thought it was what is commonly referred to as [a] Fedora type hat. They had bandannas across their faces on top of the bridges of their nose."
The handkerchiefs were dirty white, almost gray. He identified the two defendants, James Buffa and Philip Carey, in the courtroom as being the men who committed the crime. He noticed at the trial that Buffa did not look then (at the time of the robbery) as he looked now -- "he had dark bushy hair, thick hair, which at the present time he doesn't have." He stated that the day following the robbery he was at police headquarters and was shown a series of photographs from which he picked out two, being photographs of Buffa and Carey, as the perpetrators of the crime. He learned the names from the reverse sides of the photographs after having selected them. On cross-examination he stated that at the time of the robbery he did not see the chin, mouth, lower part of the nose or the upper part of the ears because of the covering
hats and handkerchiefs, but reiterated his identification of the photograph of Buffa. He resisted defense attempts to shake his identification of Buffa's photograph by insisting that it was his own free choice without suggestion by two detectives. When asked again whether he was positive that he had seen Buffa in the office on October 26, his answer was, "All I can say is that I thought it was him. I can't be positive. But I thought that was him." On cross-examination he answered similarly in identifying Carey. He stated that he picked Carey's photograph from among those shown to him the next morning at the detective bureau, although he testified that he had only "approximately three, maybe four inches" of face available for observation. At one point in his testimony he placed a hat and handkerchief (not the ones used in the robbery) on both of the defendants as he remembered them to be on the night in question, for the benefit of the jury.
On re-direct examination, Miller described the tall desperado as having "dark bushy eyebrows and deep inside eyes, long with dark hair." The small one "had squinty, a squinty expression on his face with a sort of twinkle in his eyes. I just could not forget that twinkle in his eye." Miller did not testify that either of the bandits had any garlic odor about him, a fact whose significance will become apparent.
Mrs. Ethel Reilly, another of the workers, testified that at one time while one of the robbers, described as the tall one, was in the process of tying up other workers, she got a good look at him when his bandanna slipped and she "got a glimpse of his face." He quickly "put it up." This was the same man who tied Mrs. Reilly and was therefore in close proximity to her, and she smelled a garlic odor. "In fact, the whole office smelled of garlic * * *." She did not state that the other (smaller) man had the garlic odor. She further testified that the morning after the robbery the police brought 50 or 60 photographs to the Continental Baking Company office where they requested her, sitting alone at her desk without any interference from other persons, to try to identify the men who perpetrated the robbery. She picked
the photographs of Buffa and Carey as being the two involved in the crime.
On the Tuesday after the robbery she was present at a police line-up where out of eight men she picked the defendant Buffa as being one of the bandits, and said she was positive of this identification. She told the police at the time of the line-up that Buffa "looked different because he has had that bushy hair clipped very close."
Upon cross-examination, she stated that she did not get a glimpse of Carey's face, "but I got a glimpse of his eyes. * * * I got a good look at his eyes."
Mrs. Mary N. Knerr, another of the employees present at the time of the robbery, testified that she was shown a "big pile" of photographs, "about 50 or 60," at police headquarters the day following the robbery. At the trial she identified Carey from one of the group of photographs shown to her. She testified that she picked out Buffa's and Carey's photographs, the same photographs identified by Mrs. Reilly, but she did not attend the police line-up on Tuesday following the holdup. Nor did she see the handkerchief drop from the tall bandit's face. Her identification of Carey's photograph was from the "general appearance of this man."
The last eye witness, Mrs. Adelaide Scherer, testified that the taller of the two men had a "very strong odor of garlic on him" which she noticed because he was close to her. She also stated that she was shown a number of photographs in the office and set aside one of them as being Buffa. She pointed out Buffa who was in the court room in front of her. She had independently picked Buffa from the police line-up based upon his height, eyes, hair and shoes, which made her "positive that [he] was the man." On cross-examination she stated that her identification of the photographs was her own choice and not the result of consultation with co-workers. She had no difficulty in identifying Buffa at the line-up, iterating that it was because of the color of his eyes, bushy hair, and his shoes. She did not, however, see Buffa's handkerchief slip, as testified to by Mrs. Reilly.
Detective Edward Callahan was assigned on the following day to investigate the robbery. His testimony substantiated the other witnesses as to identification of the defendants' photographs. He apprehended Buffa at his girl friend's house on Monday night following the robbery. He stated that Mrs. Reilly and Mrs. Scherer the next day, in two separate line-ups, both chose the defendant Buffa as being one of the holdup men. He described the line-up, and said that eight men were used, all having the same general build and appearance as Buffa. Buffa was placed in a different position for each line-up and the identifying witnesses were kept separate. He also testified that he arranged for the photograph identification by the witnesses at the Continental Baking Company and at police headquarters.
He asked Buffa if he would give a statement as to his activities the night of the holdup, but when the statement was prepared Buffa refused to sign it until he had counsel. When the unsigned statement was offered in evidence, objection was made to its admission, upon the ground that it was not a voluntary statement. Then followed, in the presence of the jury, testimony as to the detention of Buffa prior to securing the statement. The unsigned statement recites that it was taken at 3:43 P.M. on October 31, 1956, and describes Buffa's activities on the preceding Thursday, Friday and Saturday.
In discussing the circumstances of Buffa's detention Callahan stated that Buffa was first arraigned on Tuesday morning at which time the police asked for an additional 24-hour period for further investigation, which was granted. He stated that Buffa was fed, and slept in a detention cell, and later was transferred to the county jail. He was questioned for about 20 or 30 hours, but no more than "two or three hours at best at any one time * * *." Callahan was not present at all times during this interrogation, but was there only intermittently inasmuch as he was attempting to apprehend Carey. With regard to the actual solicitation of the statement, Callahan testified that Buffa voluntarily gave the statement, without threat or promise, to a police
typist in the presence of Detective Baines and himself, as well as others. A copy of the statement was given to Buffa to read, but he refused to sign it. He did, however, acknowledge the truth of the statement.
Upon this testimony the trial judge admitted the statement into evidence. In it Buffa did not admit any complicity in the crime for which he had been arrested. However, the statement is important because of the information included in the details of his activities on the Friday of the crime. After reciting that he spent the afternoon in Totowa, N.J., with his mother and father, two sons, and his friend Carey, the co-defendant, where he "picked up some fig trees" from a lot owned by the Buffas, he stated that he returned to his home at about 4:30 P.M., then "[w]e ate supper at about 5 P.M., we had spaghetti and garlic sauce. I wasn't feeling too good so I laid down, I got up about 9:45 P.M. and Phil said to me let's go up to my uncle's house on Summer St. and ...