For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor and Schettino. For affirmance as to Hayes and reversal as to others -- Justices Hall and Haneman. The opinion of the court was delivered by Proctor, J.
[39 NJ Page 284] The defendants, Tassiello, Hagan, and Hays, were indicted for breaking and entering with intent to steal, and for conspiracy to commit that crime. The Bergen County Court entered judgments of conviction based upon jury verdicts against Hagan and Tassiello on the charge of breaking and entering with intent to steal, and against all three defendants on the conspiracy charge.
On their appeal to the Appellate Division, the defendants argued (1) that the State failed to make out a prima facie case against them; (2) that the trial court failed to exclude two confessions of the defendant Hayes, which incriminated the other defendants as well; and (3) that the State's cross-examination of Hayes concerning prior convictions was improper and prejudicial. The Appellate Division found the first point to be without merit, but reversed the convictions on the second, holding that the failure to exclude the confessions was prejudicial to all three defendants. In view of its reversal, the court found it unnecessary to pass upon the defendants' third point, but admonished the State not to repeat at the new trial the questioning of Hayes concerning prior convictions. 75 N.J. Super. 1 (1962).
We granted the State's petition for certification. 38 N.J. 315 (1962).
The facts are fully set forth in Judge Foley's opinion in the Appellate Division. Briefly, the State's case showed that late in the evening of September 8, 1960, the defendants were drinking in Seidel's Bar and Grill in Ridgefield. At about 2:00 A.M. (September 9) they walked out and drove away when the bartender closed the establishment. Shortly thereafter, Patrolman Stoltenberg apprehended Hayes outside the rear of the premises and, after Patrolman Amicosante joined him in response to his call, Tassiello and Hagan were found inside the tavern. A window leading to the men's room had been opened and Hayes' automobile was found parked about a block away on a side street. The defendants were placed under arrest and taken to the Ridgefield police headquarters, which was a short distance away.
During the trial, the defendants contested the admissibility of written statements which Hayes and Hagan had given to the police later in the morning of their arrest, contending that the statements had been coerced by police brutality. Patrolmen Stoltenberg and Amicosante testified to the circumstances of the defendants' arrest. Amicosante further testified that when Stoltenberg took the defendants to headquarters,
he remained at the tavern for a short time and then resumed his regular patrol; that thereafter he had nothing to do with the defendants. The State next called Patrolman Edward Gallagher, assistant in charge of the records and identification bureau, who testified that on September 9, 1960, shortly before 7:30 A.M., he came on duty at police headquarters and interviewed successively Hayes, Hagan and Tassiello. By his testimony the State intended to lay a foundation for admitting into evidence two signed confessions taken by him from Hayes, one in Hayes' handwriting and the other in typewritten question-and-answer form, and a signed confession taken by him from Hagan in typewritten question-and-answer form.*fn1 At this point defense counsel interposed his objections and the trial court proceeded to conduct a preliminary hearing on the issue of voluntariness in the absence of the jury.
At this hearing, the direct testimony of Gallagher was to the effect that Hayes and Hagan gave him the statements at the time of the interviews mentioned above. Hayes gave Gallagher his handwritten statement at about 7:30 A.M. and his typed statement immediately thereafter; Hagan's statement was taken about an hour later. On cross-examination, Gallagher testified that the statements given him by Hayes and Hagan were voluntary, although the defense counsel's questioning suggested that they were the result of coercive conduct on the part of the police. At the conclusion of this cross-examination, the State offered the confessions in evidence. It appears from the record that the defense made no further attempt at this point to contradict the testimony of Gallagher. The jury was recalled and the confessions were admitted into evidence over the defendants' objection. The judge then permitted the defense to cross-examine Gallagher
in the jury's presence, after which the prosecutor read the three statements to the jury. With respect to the contents of these confessions, it is enough to say that each incriminated not only the particular declarant but his codefendants as well. However, no instructions were given to the jury when the confessions were read that each was evidential only against the declarant who made it.
The State then called Magistrate Cummins who testified that the defendants were arraigned before him at 6:00 P.M. on September 9. He said that they made no complaints to him about the conduct of the police, and that he did not notice any evidence of injury on their faces or hands.
The State's case concluded with the testimony of the bartender from Seidel's, alluded to above, to the effect that the defendants had been drinking at his bar until closing time on the morning of September 9, and that they walked out in front of him and drove away as he locked up the place for the night.
When the defendants opened their case, the voluntariness of their statements was affirmatively contested for the first time. They called Patrolman Stoltenberg and attempted to elicit from him that he had beaten and otherwise mistreated each of them before the confessions of Hayes and Hagan were taken. However, Soltenberg categorically denied that either he or anyone else in his presence mistreated the defendants in any way.
Dr. Michael Sarla, the Bergen County jail physician, testified that he saw Tassiello on September 12, 1960, at the county jail, and that Tassiello "said that he had pain in the lower right chest and upper right shoulder. That was four days duration since he had been beaten up." A chest X-ray of Tassiello, ordered by Dr. Sarla, revealed that Tassiello had suffered a fractured rib. The doctor also said that Tassiello was under his care until he was released on bail on November 22, and that he gave him medical treatment on ten occasions. He further testified that Hagan came to him on September 12, 1960, "because of pain in the chest and shoulder
and left knee, and also of four days duration, and also following a beating up." An X-ray of Hagan revealed no broken bones, but the doctor said his examination disclosed "several black and blue marks on the chest and showed a discoloration," and that there were other black and blue marks on his side and back. The doctor said he did not examine Hayes until September 16, at which time "his statement was that he also had been beaten up" and that he complained of "pain around his chest and frequency of urination." Apparently, the doctor observed no marks on Hayes at the time of his examination.
The defendants each denied having any intent to steal. In essence, their testimony was that they had set out from Keansburg to drive to New York City; that during the course of the trip they decided to visit Tassiello's sisters who lived in the Ridgefield area; that during the day they stopped in several bars, including Seidel's; that later in the evening they returned to Seidel's and continued drinking; that after Tassiello and Hayes left at closing time, they realized that Hagan was not with them and they returned to Seidel's to retrieve him; that Hayes went to the rear of the premises to relieve himself while Tassiello knocked on the side door of the tavern; that Hagan, who had fallen asleep in the tavern, opened the door to let Tassiello in and then went back to look for a shoe he had lost. At that point, the police arrived.
On the issue of the voluntariness of the confessions, the defendants testified that they were all severely beaten and otherwise physically and psychologically coerced by the arresting and examining police officers, Stoltenberg, Amicosante, Edward Gallagher and others. They each said that this mistreatment commenced shortly after they were taken into custody and continued until some five hours later when confessions were extracted from Hayes and Hagan. The details of their testimony need ...