For reversal -- Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- Chief Justice Weintraub. The opinion of the court was delivered by Francis, J. Weintraub, C.J. (dissenting).
Defendant Henry A. Vigliano was indicted for the murder of his mother, Catherine Vigliano. He not only denied the charge, but also interposed the defense of insanity. After a trial the jury found him guilty of murder in the first degree and recommended imprisonment for life. That sentence was imposed and he has appealed directly to this Court under R.R. 1:2-1(c). The appeal is predicated upon alleged errors in the trial court's charge to the jury, and in the admission in evidence of a confession. For reasons to be stated, the conviction must be reversed and a new trial ordered.
According to the signed confession and the account given by Vigliano (with a few variations) to his fiancee when she visited him at police headquarters, the homicide occurred in this fashion: On Sunday, January 6, 1963, the day of the fatal event, Vigliano arose at about 1 P.M. His mother was at home but his father, a tavern operator, was at work. He had coffee with his mother and they discussed his forthcoming marriage to which she had objections. Around 4 P.M. he went to his fiancee's home. She lived in Paterson, New Jersey where his home and his father's tavern were located. He and she talked about their wedding plans and furnishings for their future home. Thereafter they went for an automobile ride past some furniture outlet showrooms. On returning about 8:30 P.M., they watched television until about 11 P.M. when he left to go to his father's tavern. At the tavern he and his father had a disagreement about the father's drunken condition. A scuffle ensued in which the father picked up a pan apparently intending to strike his son with it. Henry punched his father in the eye, left the tavern and drove home, arriving there about 11:30 or 11:45 P.M.
His mother was at home sitting at the kitchen table having a cigarette. As he entered she asked him where his drunken father was and why he had not come home. Henry explained about the argument and said he left the tavern to avoid further aggravation. His mother began to curse him and call him vile names, which need not be set forth here. After the tirade had continued for several minutes, he went upstairs to his bedroom, removed a service revolver from his desk and "proceeded to hide it in a shoulder holster [he] had hidden behind some clothes" in his closet. His mother came into the room and continued to "rant and rave" at him. He asked her not to bother him, to leave him alone, he wanted to go to bed but she continued and he began to be "antagonized." He threatened to throw her out of the room if she did not leave him alone. Not being able to "take it" any longer, "[he] reached in for the service revolver only to scare her." He thought it was unloaded. He "pointed it at her and fired it twice." She slumped down and he picked her up and put her in a chair.
He left the house, drove to his father's tavern and waited there until closing time, about 1 or 1:15 A.M. After driving his father home, he went up to his room. His mother was unconscious in the chair and he telephoned the police asking for a squad car because there had been an accident. He telephoned his fiancee also and talked to her mother telling her that his mother had been shot twice and that apparently she had attempted suicide.
The police arrived and had Mrs. Vigliano removed to the hospital. She remained unconscious from two bullet wounds in the head until the early morning of January 8, 1963 when she died.
After the victim had been taken from the Vigliano home, the police officers took possession of the revolver, noted blood stains not only on the chair where Mrs. Vigliano was sprawled but on two walls, on the drapes and on the floor near a radiator. About 2 A.M. on January 7, they took defendant to police
headquarters for investigation. A short period of questioning followed. He was placed in a cell and his fiancee visited him sometime around 6 A.M. It is clear no force or coercion or improper methods were used by the police in the course of the interrogation.
During the day on Monday, the police investigated Vigliano's account of his whereabouts prior to and at the time of the shooting, and his intimations that his mother had taken her own life. The investigation cast serious doubts on his assertions. The discrepancies were called to his attention about 7 P.M. and discussed with him for about one hour. The detectives then requested his fiancee to see him and ask him to tell the full truth. When she came to police headquarters, one of the detectives told her he felt defendant was responsible for the shooting of his mother. The detective testified she told him she felt the same way. She said at the trial she felt Vigliano was sick and it would be better for him if he gave a statement. She saw him around 9:30 P.M. and talked to him for about 20 minutes. Thereafter one of the detectives discussed the situation again with Vigliano for about a half hour, pointing out the various parts of his story that could not be true, and that he was going to be charged with the crime. Finally Vigliano said, "Well, I guess the people will say another crazy Marine did it again." And he began to narrate the happening as we have set it forth above. In this oral confession he did not say he thought the revolver was unloaded when he fired it.
Vigliano's fiancee had left her coat in the room where she had talked with him. Around 11 P.M. she knocked on the door in order to retrieve the coat. On entering she was told a confession had been made, and a detective said they would like her to hear the story. Vigliano then repeated to her the substance of his confession. In doing so, again he made no reference to a belief that the gun was unloaded.
After the fiancee left, the statement was typewritten in question and answer form, read and signed by Vigliano at
12:30 A.M. on January 8. It contained the assertion he intended only to "scare" his mother and that he thought the gun was unloaded when he fired it. At about 3 A.M., after having been taken to the hospital to see his mother who was still unconscious, he was charged formally with assault with a deadly weapon. Some hours later the police learned she had died and about 9:30 A.M. Vigliano was arraigned before a magistrate on a murder charge. Two hours later he signed another statement, again in question and answer form, confirming the truth of the earlier signed confession and saying that, knowing of his mother's death, there was nothing he wished to add.
There is no need to set forth in any greater detail the circumstances attending the giving of the signed confession. Defendant does not suggest it was the product of coercion, physical abuse or intimidation. The principal objection advanced at the trial against its admissibility was defendant's assertion the police told him "it would go much easier in court" for him; "they would make sure" he received "a lighter sentence"; he would not "go to the electric chair." The officers denied they made any such promises of reward or benefit in return for the confession. After hearing all of the testimony on the subject, the trial court (out of the presence of the jury) found the confession was voluntary and admitted it in evidence. Subsequently, in his charge to the jury, the court properly submitted the issue of its voluntariness as well as its truthfulness to the jury for determination. The verdict of first degree murder obviously indicates they reached the same conclusion as the court. We have reviewed the record in light of defendant's renewed attack on the voluntariness of the confession and we find the evidence in its totality adequate to sustain the finding of the trial court as well as that of the jury.
On June 22, 1964, subsequent to the argument of this appeal, the United States Supreme Court decided Escobedo v. Illinois, 84 S. Ct. 1758 (U.S. June 22, 1964). Defense
counsel immediately submitted a supplemental memorandum citing the case as additional reason why the trial court should have excluded defendant's confession. The portion of the opinion relied upon is:
"We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. 335, at 342, 83 S. Ct. 792, 9 L. Ed. 2 d 799, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." 84 S. Ct., at p. 1765.
It is not necessary to make a definitive ruling on the new issue at this time because of the reversal of the conviction and order for retrial. Discussion of the matter in light of the factual record before us seems warranted, however.
The testimony discloses that when Vigliano was taken from home to police headquarters after his mother had been removed to the hospital, his father accompanied him. There is no suggestion that he asked his father to call an attorney. Before leaving with the police, he was allowed to telephone his fiancee. At that time he told her if he wanted anything he would get in touch with her. In this connection he testified it was "conceivable" that he said to her if he wanted a lawyer, he would get in touch with her. He "could have said that." He was "not quite sure." His fiancee was allowed to see him alone around 6 A.M., a few hours later. He testified he asked her to get an attorney "down to police headquarters by noon" if he had not been released. During the direct examination by his attorney about this meeting, he said he had not been permitted to "speak with any attorney." On being asked whether he requested permission to do so, he
answered affirmatively. But when asked when and of whom he made the request, he testified: "I made a request to my girl about 6 a.m. in the morning of the 7th." He did not say he made the request to the police officers.
Vigliano was allowed some additional outside communication. As already indicated, his fiancee saw him again that evening at about 9:30 P.M. In testifying about that visit she said he told her he had asked and been refused permission to see John Geaney and Adolf Badagliacca, apparently friends of his. But obviously someone had communicated with Geaney because she said he called her and told her Vigliano wanted his lawyer. She did not know what lawyer was meant, and she "called the wrong person." During the visit, however, and in spite of the fact that he had not been released by noon, there is no intimation that she asked for the name of his lawyer or that he gave her a name or requested her or the police to obtain a lawyer for him, or that he asked for a delay of his police interviews until he could consult with an attorney. The strong inference is that he decided against demanding an attorney and concluded to give a statement. At that point he told his fiancee to bring in Lieutenant Edmond of the prosecutor's office so he could furnish his statement on three conditions, two of which he said were agreed upon. They were that he could see his mother and that he would be given a sodium pentothal test "afterward." The Lieutenant came in and the offer to make the statement was made and accepted.
The record discloses that there was some delay while preparations were being made for the taking of the confession. At this time a close friend of Vigliano, one Albert Breen, had come to police headquarters. As Vigliano put it, Breen and his wife were "very close" friends of his. In fact, in the history he gave Dr. Collins, Breen was mentioned as the friend who aided him in obtaining the job in the warehouse he held at the time of the shooting. Vigliano asked to see Breen and he came into the room. There was some general conversation
about tools which Breen had removed from the house after Vigliano was taken to headquarters. It seems obvious that this was done at defendant's request because he testified he was worried about the tools as the house was unlocked when the police took him away.
The most significant aspect of the conversation came in the course of Vigliano's testimony. He testified he told Breen he was going to give Lieutenant Edmond and the Paterson police a statement and the "conditions of the statement." This was said in the presence of his fiancee. Immediately after this, Breen and his fiancee left and the statement was taken. It seems certain that if Vigliano wanted an attorney before making his statement, or had any reluctance about doing so or did not have a full understanding of what he was about to do, Breen would have been asked to help him in that connection. Breen was not called as a witness by the defense. The inference is obvious that any testimony from him would have supported the trial judge's conclusion that the confession was voluntarily given.
There is another circumstance present which should not be overlooked. Vigliano was not a stranger to law enforcement. He was a constable of the City of Paterson. See N.J.S.A. 40:41-35. As such he was a peace officer. He had the power of arrest, and he was allowed to carry a service revolver and handcuffs. N.J.S. 2A:169-3; Caldaro v. Ferber, 39 N.J. 314, 317 (1963); 80 C.J.S. Sheriffs and Constables § 42b. Thus, Vigliano cannot be likened ...