For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
Defendant, Reginald O. Driver, Jr., was convicted of murder in the first degree arising out of a robbery, and pursuant to the jury's recommendation was sentenced to life imprisonment. He has appealed directly to this court. R.R. 1:2-1(c).
The victim, Jacob Mayer, was manager of the A & P Supermarket on South Broad Street in Hamilton Township, Mercer County, New Jersey. On Good Friday, April 4, 1958, the store remained open until 10 P.M. Mayer left at about 10:30 P.M., after locking the door and taking the key with him. He drove away in a 1947 Dodge belonging to his father-in-law. Mrs. Mayer was already in bed when her husband reached home. The sound of the key in the
kitchen door awakened her. She heard her husband's voice but the record does not show how soon that was after she awakened. There was nothing about his tone which indicated apprehension. He said, "You guys" or "Oh, you guys." (On motion, the trial court struck out the reference to his comment. The ruling was improper, as the statement was part of the res gestae. It was an undesigned incident of the criminal event that was beginning to unfold. Its nature and apparent spontaneity might be taken by the jury as an indication that Mayer's visitors were known to him. See Hunter v. State, 40 N.J.L. 495, 538, 539 (E. & A. 1878); State v. Doro, 103 N.J.L. 88, 93, 94 (E. & A. 1926); State v. Stephan, 118 N.J.L. 592 (E. & A. 1937); 1 Underhill, Criminal Evidence (5 th ed. 1956) § 266.) Shortly thereafter she observed the lights of an automobile going out of her driveway. When her husband had not returned by 2:30 A.M., she made an unsuccessful search for him, and finally called the police.
Early on the morning of April 5 the police went to the A & P Supermarket with the Assistant Manager. There they found the safe had been opened and the cash usually kept there was missing. A subsequent audit fixed the loss at $10,468.21 in cash and $505.17 in checks.
Around 7 A.M. on April 5, a fisherman noticed a burned 1947 or 1948 Dodge coupe standing near a footbridge between Carnegie Lake and the Delaware-Raritan Canal in Princeton Township. The car was still smoking. The police were not notified, however, until the following day, Sunday, when another visitor to the area saw it and made a report. The waters of the lake and the canal were then searched until April 10, when the body of Mayer was found in the canal in about eight feet of water. Examination showed a laceration of his scalp above the right ear. Two-inch adhesive tape had been wound around his wrists, mouth, eyes, nose and neck. The tape around the neck was very tight and twisted. Death had not resulted from drowning but from strangulation. The autopsy physician indicated that the
tape on Mayer's neck had prevented breathing, and had probably produced death in three to five minutes.
Police investigation uncovered circumstances and alleged admissions to third persons which pointed toward involvement in the crime of Driver and possibly his brother-in-law, David Mills. Interrogation of Driver, to be considered hereafter in more detail, allegedly produced further inculpatory statements, and he was charged with murder on December 11, 1959. Defense attorneys were not assigned until May 1960. A four-week trial began on May 15, 1961, and resulted in the verdict referred to above. Numerous grounds for reversal have been presented. Some of them, to be discussed herein, are meritorious and require a new trial.
REFERENCES TO THE LIE DETECTOR TEST.
In the Assistant Prosecutor's opening to the jury, he detailed certain inculpatory admissions about the killing which Driver was said to have made to his mother-in-law, Mattie Lee Scott. The jury was told that her statement with respect to the admissions had been recorded on tape by the police and that later the recording was run for the defendant to hear. Then, according to the opening, when Driver disputed their truthfulness, he was asked to "clear this up. Take a lie detector test, and he refused." The Assistant Prosecutor pursued the matter further, saying that as various portions of the tape were played for Driver the request for such a test was repeated and "every time he refused."
No objection was made by defense counsel but we regard the references as so highly improper as to constitute plain error. The State's case against Driver was based upon circumstantial evidence to a substantial degree and alleged oral admissions by him. In such a case particularly, to tell a jury of laymen at the very outset of the trial that defendant
refused a number of times to take a lie detector test was to create a probable aura of prejudice which would permeate the proceeding to the very end.
The results of polygraph tests, whether favorable or unfavorable to an accused, are uniformly held inadmissible. We are aware of no jurisdiction which holds to the contrary, and none has been cited by the State. Basically, the reason for rejection is that the lie detector has not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. State v. Walker, 37 N.J. 208, 214, 216 (1962); State v. Arnwine, 67 N.J. Super. 483 (App. Div. 1961); State v. Varos, 69 N.M. 19, 363 P. 2 d 629 (Sup. Ct. 1961); State v. Trimble, 68 N.M. 406, 362 P. 2 d 788 (1961); Mattox v. State, 240 Miss. 544, 128 So. 2 d 368 (Sup. Ct. 1961); State v. Foye, 254 N.C. 704, 120 S.E. 2 d 169 (Sup. Ct. 1961); People v. Aragon, 154 Cal. App. 2 d 646, 316 P. 2 d 370 (S. Ct. App. 1957); People v. Wochnick, 98 Cal. App. 2 d 124, 219 P. 2 d 70 (D. Ct. App. 1950); Annot, 23 A.L.R. 2 d 1306; 1960 A.L.R. 2d Suppl. Service 1998; 1962 A.L.R. 2 d Suppl. Service 580; compare State v. Levitt, 36 N.J. 266, 275 (1961).
If the results of polygraph examinations are not competent evidence, a fortiori, refusal by a defendant in a criminal case to submit to one cannot be made the subject of testimony. In terms of degree of prejudice, the average jury, unfamiliar with the present scientific uncertainty of the test, might very well be even more affected by proof of a defendant's refusal to take the test than by the evidence of results adverse to him coupled with proof of its scientific imperfection. A refusal might be regarded as indicating a consciousness of guilt -- undoubtedly the reason here why the Assistant Prosecutor placed such emphasis upon it in his opening. Moreover, his remarks were calculated to prejudice the jury by implying that the mechanical device was the ultimate in tests for the truth.
In State v. Kolander, 236 Minn. 209, 52 N.W. 2 d 458, 465 (Sup. Ct. 1952), evidence of the defendant's unwillingness to take the test was admitted but with a cautionary instruction that no adverse inference was to be drawn therefrom. The Supreme Court reversed with quotable pertinence to the present case:
"The state concedes that the results of a lie-detector test would not be admissible, but contends that it may nevertheless be shown that defendant refused to take such test, since such refusal is evidence of a consciousness of guilt similar to evidence of flight. With this we cannot agree. Much the same proposition was advanced in People v. Wochnick, 98 Cal. App. 2 d 124, 219 P. 2 d 70, supra. In that case, an officer testified that defendant had been told that he had been placed on the lie detector for a test and that there was a violent reaction when he was shown a certain exhibit; and that when he was asked for an explanation of such reaction he stated that he could not explain it. The trial court instructed the jury that it could not consider that portion of the conversation relating to the lie-detector test as indicating whether or not there was any reaction to any technical test. In holding that it was reversible error to admit the evidence, the California court said * * *: 'Despite the instruction of the court, the evidence of the partial results of the lie detector test with respect to defendant's reaction upon being shown the murder weapon was indelibly implanted in the minds of the jurors and could not but have had a prejudicial effect.'
The same is true here. * * * The impact upon the minds of the jurors of a refusal to submit to something which they might well assume would effectively determine guilt or innocence, under these conditions, might well be more devastating than a disclosure of the results of such test, if given after a proper foundation had been laid showing how the apparatus functioned."
See also, Mills v. People, 139 Colo. 397, 339 P. 2 d 998 (Sup. Ct. 1959); Commonwealth v. Saunders, 386 Pa. 149, 125 A. 2 d 442, 445 (Sup. Ct. 1956); People v. Aragon, supra, 316 P. 2 d, at p. 379; State v. Foye, supra, 120 S.E. 2 d, at pp. 172, 173.
Under the circumstances, we regard the remarks in the opening concerning the lie detector test as possessing such horrendous capacity for prejudice against the defendant as to constitute plain error. Mattox v. State, supra, 128 So. 2 d, at p. 373; State v. Varos, supra, 363 P. 2 d, at p. 631;
Mills v. People, supra, 339 P. 2 d, at pp. 999, 1000; and see, State v. Corby, 28 N.J. 106, 108 (1958).
The shadow cast by the improper opening remarks deepened during the course of the trial. The Prosecutor had told the jury that the tape recording of Driver's mother-in-law's statement was played to him in sections. At the completion of an inculpatory admission attributed to him, he would be interrogated about it and, on his denial thereof, he would be asked to take a lie detector test on the subject. When he refused, the next portion of the recording was released and the same performance followed. The exact number of times that happened until the end of the tape was reached does not appear. The clear impression from the Prosecutor's remarks is that there were several such instances. He said "they played various portions" of the tape and "every time" defendant refused the polygraph test. Thus the jury was alerted for what the prosecution had planned to prove in connection with the mother-in-law's recorded statement.
When the State was endeavoring to introduce Driver's unsigned confessions in evidence, a separate hearing, out of the presence of the jury, was held to consider their voluntariness. In the course of the testimony of the police officers, there were many references to the refusal to submit to a lie detector test, particularly while the mother-in-law's recording was being discussed. Ultimately, the trial judge informed the Prosecutor that if the unsigned statements were found to be voluntary and it therefore became necessary to repeat the evidence on that aspect of the case for the jury, it would be improper to refer to or attempt to prove defendant's refusal of the lie detector test. Later, following the court's decision to admit the statements, and the jury's return to the court room, the State did not attempt specifically to offer the banned testimony. But the manner of presenting the playing of the various portions of the mother-in-law's recording and Driver's attitude toward them during the police interrogation made the air
pregnant with the Prosecutor's opening remarks about the lie detector test. For example, when Lieutenant James F. Keegan was describing Driver's conduct while listening to the various portions of the recording, he explained that upon playing a part of the tape containing an alleged admission, Driver would deny the statement attributed to him by his mother-in-law, "and the captain [who was participating in the interrogation] then asked him this question that I'm not supposed to say." And (by the Assistant Prosecutor):
"Q. Then again this question was asked and again Driver gave an answer, and then there was a conversation about that question and answer?
A. Yes, sir, that same proceeding after each part of the recording took place."
Again, a little later in the examination concerning the recording:
"* * * but we saw him again a little after 8:00 o'clock and went into this subject I am not supposed to mention * * *."
Comment of the same type was made by Captain John Bojarski in giving his testimony. To a lesser extent it ran through that of Sergeant Frederick M. Porter, Jr., also. Both of these officers took part in the extended interrogation of Driver. And the Prosecutor's numerous references to the question and answer which could not be mentioned served to keep the matter in the consciousness of everyone. (All of these improprieties and insinuations can and should be avoided by pretrial preparation. See People v. Aragon, supra, 316 P. 2 d, at pages 378, 379.) Moreover, John J. Toth, a State Police officer, was produced by the State, and an effort was made to show that his purpose in appearing at a June 1958 interrogation of Driver was in connection with a lie detector test. The attempt (which came after the court had ruled earlier in the trial that such a test was inadmissible) was frustrated after a side bar
conference. Even after that took place, the Assistant Prosecutor went on to prove that Toth's appearance there was not for the purpose of interrogating anyone. Then, in summation, he said:
"* * * Toth wasn't even there for the purpose of questioning this man or of interrogating him. He was aiding Latowiec, and because of the defense motion I can't tell you why Latowiec was there and Toth was there. They were participating in no way in any questioning of the defendant and he was in observing, observing for what I can't say."
Finally, on this subject, another matter must be mentioned. A recording was made of a September 8, 1959 interrogation of Driver. It was admitted in evidence over objection and the jury allowed to hear it. The police officers prepared what they said was a transcript of the tape and produced it at the trial. It was not admitted in evidence, although handed to the trial judge for use in connection with his private audition. Following argument of the appeal in this Court, the tape was run for us and the transcript (which was included with the State's exhibits) was made available to us. A specific reference appears therein to Driver's refusal to take a polygraph test. Although the audibility of the recording will be treated hereafter, it is sufficient to say at this time that the question and answer relating to the test were not audible to us. We cannot say if the trial court heard them. Presumably he did not, because he had already declared such evidence incompetent, and therefore we must assume that he would have had that portion of the tape eliminated before allowing the jury to hear it. But if the reference to the test is on the tape, as the police assert, we cannot say the jury or some of its members did not hear it.
The entire handling of the lie detector test aspect of the case clearly reveals prejudicial overzealousness on the part of the prosecution, and leaves an appellate court with no recourse but vacation of the conviction. As the court said
in Mills v. People, supra, speaking of the State's introduction in evidence of defendant's refusal to take a lie detector test:
"All too frequently this court is compelled to reverse judgments of guilt in important criminal cases because of over-zealous prosecution. It is the duty of prosecuting officers to guard against the introduction of incompetent evidence. Over-prosecution of the accused should not be permitted by the trial court. In the instant case the district attorney insisted at great length upon introduction into evidence of testimony which is uniformly held to be incompetent, in an unbroken line of authorities throughout the nation. * * *." 339 P. 2 d, at pp. 999, 1000.
VOLUNTARINESS OF THE UNSIGNED CONFESSIONS.
Two memorandums made by Lieutenant Keegan, purporting to record conversations previously held with Driver, were admitted in evidence. Keegan said he wrote them immediately after leaving Driver and read them to him at the next period of questioning, at which time Driver acknowledged the factual recital to be correct. He would not sign them, however, or consent to the preparation of a separate statement containing the same material. The trial court treated the memorandums as competent, unsigned confessions within the intendment of State v. Cleveland, 6 N.J. 316, 329 (1951), and after making the preliminary finding (called for by State v. Smith, 32 N.J. 501 (1960), cert. den. 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2 d 367 (1961)) that they were voluntary, he ordered them marked in evidence. Consideration of the propriety of his ruling requires a study of the circumstances under which they were given.
The crime was committed on April 4, 1958. On June 23, 1958, Driver was taken by police officers from his place of employment to the Hamilton Township police headquarters. No complaint had been made against him and they had no warrant for his arrest. He was brought in for interrogation because the officers believed he was involved in the Mayer
murder. Questioning began around 2 P.M. and was engaged in by Chief Booz, Captain Bojarski, Lieutenant Keegan, Detectives Paterra, Girard, Latowiec, Berrisford, Toth and Dorsey (a relative of Driver's). They were experienced officers and the questioning was done in relays (except perhaps for Latowiec and Toth, whose function was to prepare Driver for a lie detector test) until about 8 P.M., when the officers departed for dinner. They returned at midnight and continued the inquiries until 2:30 A.M. They desisted then until 2:30 the following afternoon when they resumed until 4:30 P.M. After a half-hour break, the questioning pressed on to 8 P.M., when the officers recessed for dinner. They came back at 9:30 P.M. and pursued the inquiry until 2:00 A.M. The next morning interrogation began at 8 A.M., and was engaged in by relays of officers for three hours. The questioning related to the murder and to Driver's income and expenditures before and shortly after that time. He asserted that he was struck during its course by Detectives Girard and Toth, Girard particularly striking him in the right side of his jaw. Girard was not called as a witness to deny the charge, although Toth said he saw no violence toward Driver while he was present.
The police released Driver around 1 P.M., approximately 48 hours after his arrest, minus his belt and shoestrings. His sister, Thelma Mills, described him at that time as tired and nervous; his eyes were swollen and white, and he was complaining about his jaw. There is testimony to the effect that the pain and difficulty in his jaw continued and about 19 days after the release he visited a doctor for treatment.
At the trial, on cross-examination of Driver it appeared that Dr. Joseph F. Fiorello treated him for the jaw condition. The Assistant Prosecutor then asked Driver:
"Are you going to subpoena him in here?"
An objection was interposed and without waiting for a ruling or an answer, the examiner said:
"If you are not, we will."
On the next day, as the examination continued, defendant said he told the doctor the injury was caused by a blow. He was asked if he was sure and replied in the affirmative, whereupon the following occurred:
"Mr. Barry: Mr. Meredith may smile, but I think the doctor's testimony will be most revealing and might wipe that smile off his face."
The State called Dr. Fiorello in rebuttal and on direct examination he testified that Driver had come in complaining of his jaw. Examination revealed a "lump on his right temporal mandibular area." There was no history of a blow, and the treatment given was an "injection of penicillin for a possible infection." On further direct questioning, the doctor revealed that he had discussed the matter with defense counsel before trial. Then he was asked if he had given them substantially the same information as he had now given the jury. An objection was interposed, to which the Assistant Prosecutor said:
"Mr. Moore got up in his opening and said he was going to produce a doctor who treated this man for a blow and that blow was administered by Tony Girard. That's a direct slander and they did it intentionally and knowingly, and Mr. Meredith may laugh but it is no laughing matter to me."
On cross-examination, it developed that the doctor had been subpoenaed by the defense. If he was to be used as a witness it seems likely that it would have been subsequent to the completion of Driver's testimony. He was not called in, however, and defense counsel in summation, anticipating the State's comment, suggested that the failure to put the doctor on the stand was a matter of trial tactics. In any event, on cross-examination the doctor said he found a painful swelling of the hinge of the mandible and the skull.
He could remember nothing about the history of the case beyond the notations he had made at the time on his treatment card, which he admitted having shown to defense counsel when they visited him. That card, which he handed to counsel on request as the cross-examination proceeded, contained the notation "trauma rt. mandible" followed by a question mark. And he conceded that the notes were written as the result of what Driver told him. At another place thereon under "Remarks" he had written: "Fracture rt. mandible?." Below that there was an additional notation, which does not look like the same pen or handwriting: "Teeth -- X-ray of mandible -- To dentist." On redirect examination by the State he was asked about that writing and he said it indicated his feeling that Driver's condition "was possibly due to a tooth" and that he should have an X-ray by a dentist. When Driver was recalled in surrebuttal, it appeared that he had had no teeth in the upper part of his mouth since 1951 or 1952 and had used a plate (which he removed to show the jury). The defense offered the card in evidence. After first objecting to it the State withdrew the objection, whereupon the trial judge said it was not necessary and rejected it. After some further questioning, the offer was repeated and the State again said there was no objection. Then the court said: "All right you may have it, there is no objection."
Particular reference is made to the card because of the retrial to follow. The card is manifestly admissible to attack the doctor's credibility. It has substantial value to that end. Moreover, in this connection, it seems advisable to point out that the Assistant Prosecutor's comments, ...