Conford, Kilkenny and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
This is an appeal from a judgment of conviction for the crime of robbery in violation of N.J.S. 2A:141-1, entered upon a jury verdict in the Hudson County Court, Law Division. A sentence of confinement of nine to 12 years in State Prison was imposed. There was testimony on behalf of the State amply establishing defendant's guilt. The defense was denial of commission of the crime and alibi.
Although the sufficiency of the evidence to support the jury verdict is unchallenged, plain error revealed by the record necessitates a new trial.
At approximately 11 A.M. of the second day after the perpetration of the alleged crime, defendant was apprehended by detectives of the local police department. Following prolonged interrogation, defendant signed a confession at about 9:30 P.M. that night.
During the trial defendant objected to the inculpatory statement's being admitted in evidence, contending that it was made as the result of physical and psychological coercion at the hands of the law enforcement authorities. Following a hearing on that issue, out of the presence of the jury, the confession was admitted in evidence. Only one of the three law
enforcement officers claimed by defendant to have mistreated him testified during the preliminary hearing on the voluntariness of the confession. Two testified on the subject before the jury. The absence of the third was not explained. See State v. Tassiello, 39 N.J. 282, 292 (n. 2) (1963). When the judge admitted the confession, and before the jury heard any testimony on voluntariness, the jury was instructed:
"Ladies and gentlemen of the jury, the court is satisfied after hearing the evidence in this matter that the paper writing purporting to be a statement is the free act of the defendant and that the circumstances surrounding its taking did not offend fundamental fairness and due process of law. The Court therefore is satisfied that the matter is admissible and allows the statement to be admitted into evidence."
In its charge to the jury at the end of the case, the court said:
"The State has offered in this case a statement or confession alleged to have been made by the defendant. Under our law before such a statement or confession may be admitted into evidence the trial judge must make his own finding of fact and determine initially whether the confession or statement was the free act of the defendant and whether the circumstances surrounding its taking offended fundamental fairness or due process of law. In conformity with this rule of legal procedure I have heard testimony, in [ sic ] your presence, surrounding the making of this confession or statement and from that testimony concluded that it was the free act of the defendant and that the circumstances connected with its taking were in no wise offensive to fundamental fairness and did not violate due process of law, and therefore admitted it into evidence.
In the concurring majority opinion of our Supreme Court in State v. (Clarence) Smith, 32 N.J. 501, 559-560 (1960), the proper procedure to be followed for determining whether a confession is voluntary is set forth with a concluding admonition that, "The jury should not at any time be
informed of the trial court's finding of voluntariness." See also State v. Jackson, 43 N.J. 148, 166-167 (1964); and State v. (Edgar) Smith, 43 N.J. 67, 76 (1964), wherein it was pointed out that the trial court having passed upon the voluntariness of a confession the defendant had been accorded his full constitutional due, citing Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2 d 908 (1964). It was obviously the court's view in the Clarence Smith case that for the judge to inform the jury as to his own conclusion on the issue of voluntariness is to project an element of unfairness to the defendant into the jury's subsequent deliberations on the same issue. Here counsel for defendant made no objection to the trial court's ...