For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
Defendants were convicted of murder in the first degree. Bisignano and Russo were sentenced to die. LaPierre was sentenced to life imprisonment pursuant to the jury's recommendation. All appeal directly to this court. R.R. 1:2-1(c).
The jury could readily find the following facts. At about 11 P.M. on March 15, 1961 Russo and Bisignano entered Hahn's Tavern in Newark, wearing dark coats, dark hats and dark glasses, Russo holding an automatic and Bisignano a knife in a position to suggest it was a gun. Advancing toward a group at the bar, Russo announced a holdup and brandished his weapon. Joseph Hagel, a police officer then off duty, drew his revolver. Shots were exchanged. Both men were wounded, Hagel fatally.
Bisignano took off upon the opening shots. Russo followed, but fell at the door, losing his hat, glasses and gun. LaPierre, who was in the "getaway" car defendants had stolen earlier that evening, left the vehicle to flee on foot. As he did, his head struck the door, and the dark glasses he too was wearing fell to the street where they were later found. Russo called to LaPierre for help. LaPierre responded, and the two pursued a frantic course through back yards, with Russo stumbling about in the apparent belief that he had multiple and grievous wounds, whereas in fact he had been hit but once, in his right arm.
As the police closed in, LaPierre surrendered. Russo managed to continue a short distance before being picked up and placed in the patrol wagon which already held LaPierre. Upon learning that Russo was wounded, the officers took him to the city hospital where he was held under guard.
Meanwhile Bisignano was busy preparing an alibi. He picked up Russo's girl friend, Veronica S., at the apartment where she and Russo were living and took her to his home in Lodi. There Bisignano, his wife and Veronica rehearsed a story concerning his whereabouts at the time of the holdup. During the night the radio reported the death of the victim and that LaPierre and Russo were in custody. In the morning Bisignano and Veronica returned to her apartment where they were met by police officers.
There was no serious issue as to guilt despite testimony designed to dispute it. Russo spoke unconvincingly of drink and drugs, and that he entered the tavern only to "case" it for a friend. LaPierre testified he told his codefendants just before they left the car that he was not to be included in this robbery. Bisignano too claimed he abandoned the plan, saying in his confession that he asked Russo to call it off after they entered the tavern, while at the trial he said he communicated his withdrawal when still on the sidewalk and went into the tavern with Russo for some beer. The jury understandably was not impressed with these stock stories.
All defendants signed confessions. LaPierre, who confessed first, did not question the voluntariness of his statement, but Bisignano and Russo asserted they yielded to force and threats.
We must first consider a procedural problem.
In State v. Smith, 32 N.J. 501, 557 (1960), cert. denied 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2 d 367 (1961), we held (1) the trial judge must make his own finding upon the issue of voluntariness; and (2) if he finds the statement to be voluntary and hence admissible, he must instruct the jury to consider the same issue and to disregard the confession
unless it finds the State has proved it was voluntarily obtained. We thus departed from prior practice only in this respect -- that whereas theretofore the jury was told that it could consider the circumstances surrounding the confession to decide whether to believe it, henceforth the jury was to be instructed to disregard the statement completely unless it is found to be voluntary.
The trial court was aware of Smith and referred to it, and when the trial court admitted the confessions, counsel did not suggest the court had failed to discharge its role. However, in their briefs on appeal they urged for the first time that the trial court did not make its own finding of voluntariness but rather decided only that the proofs raised an issue of fact which the jury, and only the jury, must decide. In other words, defendants contended the trial court had not performed the first step described above in our summary of Smith.
The State thereupon moved before us for a remand for certification by the trial court as to whether it had in fact found the confessions voluntary before admitting them into evidence. The record seemed ambiguous. It was consistent with defendants' criticism but was also consistent with the proposition that the trial judge implicitly found the confessions voluntary and referred to a triable issue of fact simply to indicate that he would later submit the same issue to the jury in accordance with Smith. The fact that none of the counsel raised the issue at the trial suggested that in the context of what had preceded it, the court's ruling carried that implicit finding. In these circumstances we granted the State's motion. In response, the trial court certified it had in fact found the confessions voluntary before receiving them into evidence.
Later we directed the trial court to furnish detailed findings in support of its general finding of voluntariness. The trial court returned such subordinate findings.
We then directed reargument of the issue of voluntariness in the light of those further findings and also invited defendants
to advance any objection they had to the use of the trial court's certification and additional fact findings to which we have just referred. In response defendants argued it is unfair and indeed a denial of due process of law to consider the post-trial expressions of the trial court.
With respect to the trial judge's certification that he found the confessions voluntary before admitting them into evidence, defendants urge (with no reflection upon this trial judge) that it is better to deal solely with the record as originally returned because not every judge can be expected to certify his own error. But the answer is that we must assume that every judge can and will, that he places truth above pride, and will shun the burden of conscious wrong. The judicial process depends upon that faith. So it has been the traditional role of the trial judge to certify the record upon which the claim that he erred will be tested upon appeal. See Miller v. United States, 317 U.S. 192, 63 S. Ct. 187, 87 L. Ed. 179 (1942). Our present rules so provide. R.R. 1:6-2, 3, and 6.
Hence here, the record being unclear as to whether the trial court misconceived its duty under Smith, it was consonant with established practice and with fundamental fairness to call upon the trial court for clarification. See R.R. 1:4-1 and R.R. 1:6-6. The latter rule expressly provides that "if any difference arises as to whether the record truly discloses what occurred in the court below, the difference shall be submitted to and settled by that court and the record made to conform to the truth." Cf. Slaughter v. United States, 84 U.S. App. D.C. 232, 172 F.2d 281 (D.C. Cir. 1949), cert. denied 338 U.S. 874, 70 S. Ct. 135, 94 L. Ed. 536 (1949); Merchant v. State, 217 Md. 61, 141 A. 2 d 487 (Ct. App. 1958); Clark v. State, 119 Ohio St. 162, 162 N.E. 429 (Sup. Ct. 1928).
We do not suggest a new trial would have to be ordered if a trial court failed to make its own finding. If, as here, the issue of voluntariness was given to the jury with instructions to disregard the confession unless it is found to be voluntary,
the demand of federal due process would be met. Stein v. People of State of New York, 346 U.S. 156, 73 S. Ct. 1077, 97 L. Ed. 1522 (1953). What then would remain is the question whether the additional protection we intended for the accused in Smith could be afforded by our own finding upon the issue of voluntariness. At the moment we see no reason why it could not, but since the question need not be decided, we leave it open.
The remaining procedural issue is whether we should consider the detailed factual findings supplied by the trial judge pursuant to our directions.
Usually a trial judge states only a finding of the ultimate fact that the confession was voluntarily given. Where the issue has but a single facet, let us say, the use or threat of force, the trial judge's abbreviated finding tells the reviewing court all it need know to discharge the appellate obligation to give full regard to the opportunity of the trial court to judge the credibility of the witnesses. State v. Smith, supra (32 N.J., at p. 549). Where, however, the issue involves a number of ingredient claims, a finding upon each would assist the reviewing court, see State v. Fauntleroy, 36 N.J. 379, 397 (1962), for the trial court could have held for the State notwithstanding a finding for defendant upon one of the ingredients, whereas the reviewing court might conclude the defendant should prevail because of the single fact so found for him. Hence a trial judge should make findings in such detail as he believes necessary to assist an appellate court in the event of an appeal.
We, however, have no rule of court requiring the trial judge to detail his findings upon the issue of voluntariness. Even in a trial of a criminal case without a jury, the judge is directed to make subsidiary findings only upon request. R.R. 3:7-1(c) provides that in such matters the court "shall make a general finding and shall, in addition, on request, find the facts specially." See R.R. 8:7-2(c) which also so provides with respect to penal matters tried in the municipal court.
On the civil side, R.R. 4:53-1 provides that a judge sitting without a jury "shall find the facts specially and state separately its conclusions of law thereon." Nonetheless, appellate review is not limited to the factual findings made before the entry of judgment, for R.R. 1:2-8(h) provides that within 10 days from service of a notice of appeal the trial judge "may file and transmit to the parties a written opinion stating his findings of fact and conclusions of law, or an amplification of any prior statement, opinion or memorandum filed pursuant to Rule 4:53-1."
Ideally, the underlying facts should be found before the ultimate decision is stated, since in some cases that process might lead the judge away from the gross impression with which he started the statement of his decision. See Franzoni v. Franzoni, 60 N.J. Super. 519, 522 (App. Div. 1960); State v. Sullivan, 24 N.J. 18, 45-46 (1957) (dissenting opinion). Such situations, however, are quite exceptional and the present case is not one of them. At any rate, fairness does not require retrials in every case in which a trial court failed to state the subsidiary findings at the time of trial. On the contrary it would be the unusual case in which justice would demand that course. Ordinarily, it is sufficient for the reviewing court to exercise its power in non-jury cases to make original findings of fact, R.R. 1:5-4(b), or, if it deems it desirable, to remand the matter to the trial court for preparation of the findings of fact. The power to remand to that end is well supported by precedent. Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 59 S. Ct. 301, 373, 83 L. Ed. 221, 229 (1939); Franzoni v. Franzoni, supra (60 N.J. Super., at p. 523); 5 Moore's Federal Practice (2 d ed. 1951), § 52.06, p. 2662. Usually the occasions to remand for findings arise in civil causes but we see no reason to abjure that course in a criminal case with respect to a court issue. Cf. United States ex rel. Alvarez v. Murphy, 265 F.2d 497 (2 Cir. 1959).
We come to the question whether the trial court properly found the confessions of Bisignano and Russo were voluntary.
In broad outline, defendants claimed duress by police officers and in support emphasized that the deceased was a brother officer. The State on the other hand contended defendants knew they were caught and hence admitted what they could not avoid. Thus, with Russo and LaPierre in custody, Bisignano believed the trail would likely lead to him, and in anticipation of police interrogation he arranged an alibi with his wife and Russo's girl friend. When LaPierre implicated him, Bisignano knew the game was over, and even before his written statement was started, he sent his wife a note, "Forget about what I said, tell them the truth, I admitted what I did." And as to Russo, his arm held a bullet from Hagel's gun and he was so aware of the story it could tell that he refused to consent to surgery until the pain became more than he could bear. With the State in possession of the bullet (it had shattered, but this Russo did not know), the confessions of LaPierre and Bisignano, and the statement of his girl friend, Russo knew he was fully identified with the event by the time he was taken to headquarters for questioning.
The issue of course is the voluntariness of the confessions rather than their truth, and the State refers to the enmeshing evidence which defendants knew the State held, only to support its thesis that defendants confessed because they were trapped rather than because of force, threat, or other impropriety.
Both defendants had prior experience with the law. Bisignano, age 22, was on parole under a conviction for grand larceny. Russo, age 21, was awaiting sentence for armed robbery.
The interrogation of Bisignano began about 11:45 A.M. on March 16. By 3:15 P.M. he had already admitted his
guilt orally and written the note to his wife, quoted above. In the meantime LaPierre had confessed and retraced his and Russo's flight from the scene, leading to the recovery of some tangible evidence. The typed statements of Bisignano and LaPierre were prepared simultaneously, commencing at about 3:15 P.M. The preparation consumed some three hours. Thus the time interval between the onset of interrogation and the confession was not extensive.
Counsel for Bisignano stresses his testimony that he received no food until about 6 P.M., but Bisignano did not say that he asked for food or indeed that he wanted any before that time. In short, he nowhere suggested that he felt deprived of sustenance or yielded on that account. It is fair to assume that, with his alibi destroyed, Bisignano was not terribly interested in lunch. Indeed he was quite upset. He wept, and according to LaPierre he cried, "What am I doing here?" which to us reveals a rueful reaction upon comprehending a deep involvement. And we place no credence in Bisignano's testimony that he was denied his request to see his wife and threatened with her arrest if he did not confess. Rather we infer that having made his wife party to an alibi story he knew could no longer stand, he was anxious not to involve her in illegality, and to that end he sent her the note we mentioned above, penned before the preparation of the written confession.
Indeed Bisignano categorically attributed the confession solely to the alleged beating, and the voluntariness of the confession really depends upon that claim. According to him the officers pounded him savagely with hose, fists, and feet, without so much as a single ...