For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J. Weintraub, C.J. (concurring). Hall, J., concurs in result.
Juvenile delinquency complaints in the Hudson County Juvenile Court charged that the appellants, Thomas Stasilowicz age 15 and Jose Angel Carlo age 13,*fn1 caused the death of Deborah Coleman age 10 on June 30, 1964, by committing an attack upon her. The matters were consolidated, and extensive hearings were held at which the State was represented by the County Prosecutor, appellants were represented by counsel, and a stenographic transcript was made. R.R. 6:9-1(b). The court found that the appellants were juvenile delinquents "in that they have committed acts which had they been committed by persons of the age of eighteen years or over would constitute Second Degree Murder * * *." Thomas was committed to the State Reformatory at Annandale for an indeterminate period of time, and Jose was committed to the State Home for Boys for an indeterminate period of time. They appealed to the Appellate Division, and we certified the proceedings to this Court on our own motion.
Deborah Coleman lived with her parents at 587 Grove Street, Jersey City. On Monday, June 29, 1964, she was not at home when her mother returned from work shortly before midnight. A preliminary search for the missing girl was unavailing, and first report of the disappearance was given to the Jersey City police in the early hours of Tuesday, June 30. Neighbors and friends assisted in the search. On Thursday, July 2, at about 2:20 P.M. Deborah's body was found by the police near her home under an old door in the cellar of the tenement house at 182 Pavonia Avenue, Jersey City. A subsequent autopsy showed that the death was caused by strangulation.
Later that same afternoon appellants, along with other neighborhood boys who knew Deborah, were taken to the police station for questioning. In the course of separate interrogations each appellant made oral and written confessions. At the trial both appellants denied any complicity in the killing. They testified that their confessions were the product of fear and fatigue caused by extensive grillings by the police. The juvenile court judge determined that the confessions were voluntary and admissible. The primary issue on these appeals is whether or not these confessions were properly admissible.
Thomas Stasilowicz, age 15 and in the fifth grade of school, lived with his parents in the four-family tenement house with a grocery on the first floor at 182 Pavonia Avenue, in the cellar of which Deborah was found strangled. One of the several woodsheds in the cellar, some 20-25 feet from where Deborah was found, was used for storage by Thomas's parents, and he had access to it. There was evidence which tended to show that the homicide was committed in this woodshed.
The State's witnesses testified that Thomas was taken from his home at about 4:00 P.M. on Thursday, July 2, and driven to the Second Precinct by Detective Mullins. He was informed he was a "prime suspect" and was questioned for about 45 minutes by Detectives Mullins and Burgess. He was then asked to take a lie detector test and he agreed. Thomas's parents, who had come to the precinct station house, signed an authorization for this test.
Thomas was then taken to the main police headquarters and arrived there at 5:30 P.M. At 5:40 he was in the lie detector room with Sergeant Rogers who conducts such tests. After informing Thomas of the operation of the test and his right to remain silent and his right to retain counsel, Sergeant Rogers administered the test for about an hour. After the test was completed Rogers continued to question Thomas. As a result of this further interrogation at 8:30 or later Thomas made an oral admission, and at about 10:30 he made a handwritten confession of guilt. At some time prior to the
written statement Rogers informed Thomas that Jose was being questioned at the Second Precinct and had made certain admissions which differed from those made by Thomas. (Thomas testified that he was told Jose was "hanging him.")
Thomas was then taken back to the Second Precinct by Detective Mullins and arrived there at 11:00 P.M. He was brought up to the detectives' room where Jose was being questioned so that the boys might identify each other. He was then taken downstairs to a back room and for the first time since he was in custody given some food. He was then questioned until 12:45 A.M., at which time Detective Mullins began to type out his questions and Thomas's answers on a police form. (Thomas testified that he was handcuffed to a chair during this period of questioning.) The typewritten statement was not finished until shortly after 2:00 A.M. Thereafter Thomas was taken to the Hudson County Youth House in Secaucus.
The typewritten statement contains printed language cautioning the proposed maker of the statement that he need not answer the questions, that answers given should be "voluntary" and that the answers will be used at trial. After preliminary questions for purposes of identification of the maker the statement sets forth the charge as follows:
"* * * you did in the City of Jersey City the County of Hudson aforesaid and within the jurisdiction of this court, did willfully feloniously, and of malice aforethought, kill and murder said Deborah Coleman contrary to the provisions of N.J. statutes 2A:113-1 and N.J. Statute 2A:113-2 and against the peace of this State, the government and dignity of the same."
There is no indication in the statement or from the testimony at the trial that the language of this charge was explained to Thomas. The substance of the confession states that Thomas and Jose together killed Deborah on Tuesday afternoon, June 30, in the cellar of 182 Pavonia Avenue.
There are substantial contradictions between Thomas's two statements: in the first the killing happens early Monday evening
(roughly 5:30 P.M.), Thomas acts alone, and no sexual attack is mentioned; in the second Deborah is locked in the shed at 5:30 P.M. Monday and the killing does not take place until 1:30 P.M. on Tuesday, Jose is present at the killing on Tuesday, and Thomas says he raped her three times. Further, uncontroverted circumstantial and testimonial evidence tends to contradict certain elements in each statement. The second statement says that Deborah was raped, but the autopsy showed that the hymen was intact, that there was no evidence of trauma to the vagina, but that there was some "congestion" which might have been caused by a physical contact; the State conceded that a slide test for spermatozoa was negative. Both statements say Thomas struck Deborah on the face, but the autopsy showed no evidence of trauma or cuts on the face or bleeding other than that caused by the strangulation.
In the first statement Deborah is said to have been killed about 5:30 P.M., and in the second statement Deborah is said to have been locked up alive in the shed from 5:30 P.M. Monday to 1:30 P.M. on Tuesday. However, Mrs. Carol Gajdzisz, a neighbor, testified she saw Deborah playing on Monday, June 29, at 6:00 P.M. and later at 8:00 P.M. Mrs. Mary Ann McMahon, another neighbor, saw Deborah playing on Pavonia Avenue with her own children from about 7:45 to 8:55 P.M. on that same Monday evening. The shed was made of wood slats with openings at the top which readily allowed the passage of sound. But another friend of the family, Mrs. Witkowski, while helping to search for Deborah, entered the cellar at 182 Pavonia Avenue at 5:00 A.M. on Tuesday, June 30, turned on the light and called out to see if Deborah was there, and received no response. Finally, Deborah's mother was sitting outside at 184 Pavonia Avenue, next door to the cellar, from 5:00 to 8:00 A.M. on that Tuesday and heard and saw nothing.
The police testified that during their questioning they asked Thomas if he wished to see his parents, but that he replied in the negative; further, that his family did not ask to see him when they first came to the Second Precinct station house.
This evidence was disputed. However, there is no dispute that Thomas's father with other family members returned to the station house four more times that evening, at approximately 7:30, 9:30, 12:00, and 1:00 A.M., asking to see him. These requests were always denied with the response that the boy was still being questioned.
Jose Angel Carlo age 13 was born in Puerto Rico and came to the United States when he was seven years old. He lived with his parents at 169 Pavonia Avenue, Jersey City.
The police testified that Jose was picked up around 5:00 P.M. on Thursday, July 2, and taken to the Second Precinct for questioning. He was questioned by Detective Mackesy beginning around 6:30. Then, beginning about 7:30, he was turned over to Detective Jackson because he was "reluctant" to talk to Mackesy. Detectives Mackesy and Lavecchia remained present. Jackson told Jose that any statement would have to be "voluntary" but did not explain what this word meant or tell Jose of his right to remain silent. After obtaining an oral admission sometime around 10:00 o'clock, Jackson left the room to report to his superiors.
Detective Mackesy testified that Jackson returned in about 15 minutes and Jose was given some food. Then Mackesy, in the presence of Detectives Jackson and Lavecchia and Sergeant Farino, began to type out questions and Jose's answers on a police form which recites that it was begun at 10:35 P.M. The taking of this statement lasted until about midnight. Jose was not taken to the Hudson County Youth House until 2:55 A.M.
The same police form was used for Jose's statement as for the typewritten statement of Thomas, and it contained the same printed cautionary language and the same legal terminology of the charge. Detective Mackesy, who typed this statement, on cross-examination testified that he explained what the cautionary printed language and the legal ...