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State v. Portee

Decided: January 24, 1966.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ODELL PORTEE, DEFENDANT-RESPONDENT



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Hall. For affirmance -- None.

Per Curiam

The defendant was tried before Judge Barrett, sitting without a jury, and was convicted of carrying a revolver in a motor vehicle in violation of N.J.S. 2A:151-41. His conviction was reversed by the Appellate Division and we granted certification on the State's application, 45 N.J. 299.

The defendant and three other men were riding in a car when it was stopped and searched by officers of the Newark Police Department. The officers found a revolver in a bag

under the front seat and the occupants of the car were then taken to police headquarters. On the following day the defendant gave Detective Regan a written statement in which the defendant said that he had purchased the revolver from strangers, that he was carrying it in a brown paper bag when he was hailed by Adam Moses who was driving the car and who asked him whether he was going downtown, that he got into the back seat of the car alongside Albert Johnson, and that he was in the car for about five minutes when a police car came by, the officers searched the car and found the revolver which he had placed under the front seat.

After the defendant had signed his statement, he was arraigned and released on bail. Before his indictment was brought on for trial, the defendant moved to suppress the revolver as having been illegally seized and a hearing on the motion was held before Judge Crane. At the hearing, Judge Crane expressed the view that anything the defendant said could later be used against him; nevertheless, the defendant's counsel called him to testify and the defendant repeated the admissions in the statement given to Detective Regan. Judge Crane granted the motion to suppress. Thereafter the State proceeded with the trial of the defendant before Judge Barrett; it did not seek to introduce the suppressed revolver for any purpose whatever (cf. Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954); United States v. Curry, F.2d (2 Cir. 1965)) but did offer in evidence the statement given by the defendant to Detective Regan, the testimony by the defendant during the hearing before Judge Crane, and corroborative testimony by Adam Moses and Albert Johnson.

Counsel for the defendant objected to the introduction of the statement on the ground that it was the fruit of an illegal search and arrest and was therefore inadmissible under Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2 d 441 (1963). After hearing testimony, Judge Barrett determined that the statement was a voluntary one which had been freely given almost 24 hours after the search

and arrest and was not tainted by any prior illegality, and he ruled that the statement could be introduced as evidence on the State's case. In the light of the record before us we find no occasion for disturbing either his determination or his ruling. See State v. Jackson, 43 N.J. 148, 168-170 (1964); State v. Hodgson, 44 N.J. 151, 156-158 (1965); see also United States v. McGavic, 337 F.2d 317, 318-319 (6 Cir. 1964), certiorari denied 380 U.S. 933, 85 S. Ct. 940, 13 L. Ed. 2 d 821 (1965); Rogers v. United States, 330 F.2d 535, 541-542 (5 Cir.), certiorari denied 379 U.S. 916, 85 S. Ct. 265, 13 L. Ed. 2 d 186 (1964); cf. State v. Traub, 151 Conn. 246, 196 A. 2 d 755 (Sup. Ct. Err. 1963), certiorari denied 377 U.S. 960, 84 S. Ct. 1637, 12 L. Ed. 2 d 503 (1964); Collins v. Beto, 348 F.2d 823, 835-836 (5 Cir. 1965) (concurring opinion).

During the State's case Adam Moses testified that he was driving his car with two other occupants, Albert Johnson and Howard Harris, that he stopped and gave the defendant a ride, that he saw that the defendant was carrying something in a brown paper bag but did not know what it was, that the defendant sat in the rear of the car when they drove off and that shortly thereafter they were stopped by the police officers. Albert Johnson testified that the defendant came into the rear of the car and sat alongside him, that he observed that the defendant had a package but failed to notice what he did with it, and that when they stopped for a red light the police officers came along and presented themselves as such. Miss Hall, a court reporter, testified as to what took place during the hearing before Judge Crane. Her testimony disclosed that, after the judge had expressed the view that if the defendant chose to testify any admissions made by him could later be used against him, the defendant's counsel proceeded to interrogate the defendant and to obtain from him full confirmation of his earlier statement to Detective Regan.

At the close of the State's case the defendant moved for acquittal. His motion was denied and he rested his case without presenting any evidence on his own behalf. Judge

Barrett then rendered an oral opinion during which he noted that the defendant's statement supplied evidence of the defendant's guilt, that the testimony by Moses and Johnson tended to strengthen or bolster the statement and "to generate a belief in its truthworthiness" (State v. Lucas, 30 N.J. 37, 56 (1959)), and that the statement satisfied him of the defendant's "guilt beyond a reasonable doubt." Going further, Judge Barrett took the position that the defendant's testimony before Judge Crane was itself enough to establish guilt. While there is some authority supporting that position (Heller v. United States, 57 F.2d 627 (7 Cir.), certiorari denied 286 U.S. 567, 52 S. Ct. 647, 76 L. Ed. 1298 (1932)), we are not inclined to rely on it for it would seem hardly fair to convict a defendant on the basis of his own testimony offered during his successful legal move to suppress. See Safarik v. United States, 62 F.2d 892, 897-898 (8 Cir. 1933); Fowler v. United States, 239 F.2d 93, 94-95 (10 Cir. 1956); Christensen v. United States, 104 U.S. App. D.C. 35, 259 F.2d 192, 196-197 (1958) (dissenting opinion); cf. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2 d 697 (1960); United States ...


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