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State v. Mark

Decided: January 24, 1966.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH MARK, DEFENDANT-APPELLANT



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

[46 NJ Page 264] The defendant was indicted for the murder of Stanley Wlodarski and thereafter moved to suppress various

items which had been seized by the State. His motion was denied and he appealed to this Court pursuant to leave granted under R.R. 3:2A-10.

In December 1964 the defendant rented a room in premises located at 39 North Main Street, Flemington and owned by the Kuhl brothers. The rental was on a week-to-week basis from Friday through Thursday. On Saturday, January 16, 1965 the defendant notified his landlord Donald Kuhl, who acted for himself and his brother in renting the room, that he would terminate his tenancy on the following day, Sunday, January 17. At about noon on Sunday the defendant turned in his key to Donald and received a rental refund. Donald testified that when the key was turned in, the defendant was ready to leave and "had everything packed"; he testified further that the sum retained by him represented the rental for Friday and Saturday, January 15 and 16 and that he understood the tenancy was over when the key was returned.

The defendant planned to leave about noon on Sunday and had asked his friend Henry Zyck to help him with his moving. When Zyck was delayed, the defendant asked Donald to call a taxi for him and that was done. Before the taxi came, Zyck had arrived and told the defendant that he was going across the hall to say hello to his friend Stosh (Stanley Wlodarski). Zyck entered Wlodarski's room, found his body, and immediately called the Flemington police. Chief Evans and another officer arrived quickly and found Zyck at the entrance to the house and the defendant at the open door to his room. The Chief then entered Wlodarski's room, found it ransacked and saw Wlodarski's body "in a kneeling crouched position on the floor." As he left Wlodarski's room, the Chief asked the defendant and Zyck if they would stay as he wanted "to ask some questions later." The defendant's room was open and the defendant invited the Chief in to have a drink of wine. The Chief came into the room and although he had nothing to drink, he stayed "maybe ten minutes." While there, he noticed that the defendant "had his stuff packed"

and, in response to an inquiry, was told that the defendant was "moving to the hotel." Leaving Patrolman Horvath in charge, the Chief returned to his own home and called Trooper Martin of the State Police and County Detective Bastedo.

Trooper Martin arrived at about 1:30 P.M. He observed the open door to the defendant's room and was taken to Wlodarski's room by Chief Evans. He saw the body and the ransacked condition of the room. As they were leaving, the Chief pointed out "what appeared to be a footprint on the white door going into Wlodarski's bedroom"; the Chief also noted that "the night chain had apparently been on because the screws were pulled from the wall." Trooper Martin saw the defendant, whom he had known before, and asked him where he lived. The defendant pointed to his room (he was then standing in front of it) and invited the trooper to come in for a glass of wine. As the trooper entered the room, he saw "suitcases and paper bags of clothing" and the defendant told him he was moving that day. The trooper saw a pair of tan work shoes under the bed, picked one up and "noticed the pattern was very similar to the one on Wlodarski's door"; he also noticed that the room in general "was very upset" and indicated that the defendant "had very recently finished packing."

The trooper remained in the defendant's room for a short time and when he came out he discussed the situation with Chief Evans and the other officers present. Following this discussion, the Chief asked the defendant and Zyck to accompany Patrolman Horvath and another officer to the State Police barracks in Flemington. The trooper remained in the house until the County Coroner arrived and reported that Wlodarski had a wound in the chest which he believed to have been caused by a shotgun. Thereafter he returned to the State Police barracks. At about 3 A.M. on Monday, January 18, the trooper, accompanied by Patrolman Horvath, delivered the defendant to the Hunterdon County jail. Although no complaint had yet been filed, the trooper "felt a complaint would be signed the first thing in the morning." At the time

the defendant was delivered to the jail, a printed form captioned "Request For Temporary Commitment" was signed by the trooper as the "arresting officer" and by the jail warden as the "receiving officer." Although the written words "material witness" were filled in over the printed words "charge or complaint," it seems clear that this was done only because it was erroneously assumed to be a proper designation pending the formal filing of written complaint under R.R. 3:2-1. The written complaint charging the defendant with the murder of Wlodarski was signed and filed by Patrolman Horvath at 10 A.M. on Monday, January 18, and the written warrant for the defendant's arrest was issued immediately thereafter.

At about 3 P.M. on January 18, after having conferred with Chief Evans, Trooper Martin and other officers, Patrolman Horvath appeared before a Hunterdon County judge for the purpose of obtaining a search warrant. He submitted an affidavit which he had executed setting forth that he had probable cause to believe that certain property ("consisting of a 12 gauge shotgun, shells, shoes and clothing," and a "watch, wallet and papers" connected "with the death of Stanley Wlodarski" and "the violation of the penal laws of the State of New Jersey") was located in a room which had been rented by Joseph Mark in the North Main Street property owned by Donald Kuhl; that Mark's room was directly across from Wlodarski's room; and that Mark had admitted being in Wlodarski's room "during the past weekend, during which time the deceased was found." The County Judge, after having sworn the officer, addressed several questions to him. Responses to these questions indicated that evidence had been uncovered leading to the arrest of Joseph Mark, that the officer considered it necessary to examine Mark's personal belongings and to ascertain whether the room contained any of Wlodarski's personal property or "any weapon which might have been used in the killing," and that the officer was satisfied that the warrant was needed in order to examine into the facts and circumstances surrounding the killing of Wlodarski.

The County Judge issued a search warrant which specifically described the place to be searched and the things to be seized and a search of the room formerly occupied by Mark was immediately made by Chief Evans and Trooper Martin. They seized three unspent twelve-gauge shotgun shells which the trooper found under the cushion of an "overstuffed chair" in the room, as well as the shoes which have already been described. They also seized a shotgun shell which the trooper found in a locked box and miscellaneous other items including apparel, a wallet, a throw rug and newspapers. No shotgun was found in the room. On the following day, Tuesday, January 19, a light switch plate was removed from the room along with a piece of molding from its door; these items bore blood spots. At the same time the door to Wlodarski's room was taken. All this was done with the cooperation of the landlord Donald Kuhl. Indeed, it may readily be inferred from the record that the visits by the officers on both January 18 and January 19 and the taking of the various items had the consent and approval of Kuhl. On January 20, at about noon, Trooper Martin obtained from the Hunterdon County jail warden, clothing which Mark had on when he was first committed; in particular the trooper wanted Mark's trousers on which he had noticed a bloodstain.

In due course the Hunterdon County Grand Jury returned a murder indictment against the defendant. Thereafter the defendant served notice of motion to suppress the shoes, shells, light switch plate, molding and other items taken from the room and the clothing taken at the Hunterdon County jail. After hearing argument, the County Judge orally denied the motion, reserving however to the defendant, the right to renew it "at a later date or at the time of trial." The formal order of denial contained no reference to renewal of the motion. We granted the defendant's application for leave to appeal, heard oral argument and then remanded the matter for further ...


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