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State v. Cary

Decided: June 6, 1967.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PAUL GORDON CARY, 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 Proctor, J.

Proctor

[49 NJ Page 345] This is an interlocutory appeal in a murder case from two pretrial orders of the Union County Court granting motions by the State compelling defendant to submit

to a blood-grouping test and to a recording of his voice. We granted defendant's motion for leave to appeal.

Defendant was indicted for the murder of Joann Tyler by the Union County Grand Jury on April 21, 1966. His trial was set for December 5, 1966. This date was adjourned until December 7 to accommodate defense counsel. On December 7 the trial judge, on being informed that the State anticipated a trial lasting some three weeks and into the Christmas recess and holiday period, adjourned the trial date to January 16, 1967.

The State then moved for an order to compel defendant to submit to a recording of his voice. The assistant prosecutor in his affidavit in support of this motion deposed that: 1) the police had a tape recording of a male voice telephoning the police station with information about the crime; and 2) an expert in voice identification could determine whether defendant was the telephone caller by comparing the tape recording held by the police with a tape recording of defendant's voice.

The State also moved for an order to compel defendant to submit to a blood-grouping test. In his affidavit in support of this motion the assistant prosecutor deposed that both the victim and her assailant had suffered wounds and that knowledge of defendant's blood type might be probative at trial.

These motions were argued after due notice to the defendant and with full opportunity for defense counsel to be heard. The trial judge granted both motions. The defendant was ordered to submit to a recording of his voice, to speak in a normal, audible, conversational tone, to answer questions relative to his place of birth and present military status, and to say on three occasions during the recording: "Ah, I would like to, duh, the -- I would like to talk to Sergeant on desk." The order prohibited any questions relating to guilt or innocence of the crime charged. The order provided that defense counsel was to receive due notice of the date of the recording and should be present at the recording together with -- if defendant so requested -- a qualified expert to act on behalf of defendant. The order further provided that if the State decided

to use any evidence obtained as a result of the recording, it must give defense counsel copies of all expert reports within five days of receipt by it of such reports and furnish defense counsel full opportunity to inspect and use all relevant recordings. The order also required that the reports of defense experts be made available to the State.

The order compelling defendant to submit to a blood test provided that the blood sample "be taken by a medical doctor within the confines of an accredited hospital using all the usual medical safeguards to prevent infection; that the defendant and the attorney for the defendant be given reasonable notice of the time and place of the taking of the sample so that the latter may be present, that a report be made as to the result of the sample being tested and a copy of said report be sent to the attorney for defendant within five days of its receipt by the Office of the Prosecutor * * *."

On this appeal defendant argues that the orders compelling him to submit to blood and voice tests violate his right to due process and his privilege against self-incrimination.

The New Jersey statute which grants a privilege against self-incrimination contains the following exception:

"[N]o person has the privilege to refuse to submit to examination for the purpose of discovering or recording his corporal features and other identifying characteristics or his physical or mental condition * * *" N.J.S. 2A:84A-19(a).

We have held that compelling a person to speak for purposes of a voice identification is within this exception because the physical properties of a person's voice are "identifying characteristics" and constitute a "physical condition" not privileged. State v. King, 44 N.J. 346, 357 (1965). In the King case we further held that the constitutional rights of a defendant in a criminal case are not violated when he is compelled to speak so that a witness may hear the qualities of his voice. Id., at pp. 357-358; King v. Pinto, 376 F.2d 593 ...


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