For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None.
The Court is of the view that this appeal should be reargued in light of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2 d 694 (June 13, 1966), Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2 d 882 (June 20, 1966) and Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2 d 895 (June 20, 1966). It therefore requests counsel to brief the following questions:
(1) In light of Johnson v. New Jersey should Miranda v. Arizona or Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2 d (1964), be applied on the pending appeal in determining the admissibility of Vigliano's oral and written confessions?
(2) If the Court were to order a retrial, in light of Johnson v. New Jersey and Davis v. North Carolina, should Miranda v. Arizona be applied on such retrial in determining
the admissibility of Vigliano's oral and written confessions? In this connection note particularly 86 S. Ct. 1780.
In connection with reargument counsel should feel free to re-examine all of the facts in the record in light of the above cases, and to present any additional facts which may bear on the voluntariness issue. Attention should be given also to this additional problem: If Miranda v. Arizona were to be applied on retrial, do the facts show that Vigliano was fully aware of his right to an attorney and waived that right by voluntarily giving an oral confession without waiting for his fiancee or the witness Breen to obtain one for him?
We suggest also that it would be appropriate for defense counsel to apply for a new trial in connection with our consideration of Point III of defendant's brief. In this point it is urged the trial court erred (1) in refusing to permit counsel to cross-examine Dario Vigliano, defendant's father and a State's witness, as to his mental condition, and (2) in denying defendant the right to produce evidence of the father's impaired mental condition, for the purpose of attacking his credibility.
The trial began on March 15, 1965 and ended April 16, 1965. On March 27, while the trial was in progress defendant's father, Dario Vigliano, was committed to Hope Dell Hospital for psychiatric observation. County detectives brought him to court from that hospital on April 6, 1965 and returned him there upon completion of his testimony. On cross-examination defense counsel sought to show Vigliano's commitment for psychiatric study. On objection by the State the trial court inquired if counsel claimed the witness "is incompetent to testify." Upon being advised that counsel had no expert proof on the subject, but felt he was entitled to pursue the cross-examination for purposes of attacking the witness's credibility, the court sustained the objection. The matter should have been pursued further before the ruling was made. See State v. Butler, 27 N.J. 560, 605 (1958), and after the second trial, 32 N.J. 166, 193-195, certiorari denied 362 U.S. 984, 80 S. Ct. 1074, 4 L. Ed. 2 d 1019 (1960).
In order that the matter may be dealt with fully by the trial court, and a complete record made, defendant may make an application for a new trial in the nature of a motion for a new trial on the ground of newly discovered evidence. Full testimony should be taken (or stipulations made, if desired) before the trial court, generally on the following matters:
(1) When did the State first learn of Dario Vigliano's commitment?
(2) Did the State at any time before Dario Vigliano testified notify defense counsel of the ...