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 Jacobs, J.
The defendant was indicted for murder and is awaiting trial. He served notice that he would move for an order before trial excluding his alleged confession on the ground that it "was tendered under circumstances which would not comply with the decision of the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2 d 694 (1966)." The notice also set forth that the motion would be limited to the issue of whether Miranda had been satisfied and would not "preclude the defendant from raising this and any other exclusionary grounds" at the trial. The trial judge undertook to hear the motion despite its fragmented form, took the testimony of the police and the defendant, and ultimately entered an order excluding the confession as inadmissible under Miranda. Pursuant to the State's application, leave to appeal to this Court was granted. R.R. 1:2-4(c).
Under our long-standing practice, the determination as to the admissibility of a confession is properly made at rather than prior to trial. See State v. Cicenia, 6 N.J. 296, 301-02 (1951), certiorari denied 350 U.S. 925, 76 S. Ct. 215, 100 L. Ed. 809 (1955); State v. Green, 49 N.J. 244 (1967); cf. State v. Ferrara, 95 N.J. Super. 329 (App. Div. 1967). Proposed alterations of the practice were the subject of discussion at the last Judicial Conference and are receiving study. See 90 N.J.L.J. 257 (1967). In the meantime and pending the promulgation of formal rules, pre-trial exclusory motions addressed to confessions, particularly where fragmented as here, are not to be entertained. However, in the instant matter, the motion was heard with
the State's consent and we therefore pass the procedural irregularity.
On September 10, 1966 the decedent James Disney was mugged in Paterson and suffered wounds from which he died. On September 13th two detectives of the Paterson police force visited the home of the defendant Thomas LeRoy Yough, Jr., told his mother that they wanted to speak to her son about an investigation of an auto accident, and told him that they would like him to accompany them to headquarters. He did so and arrived there shortly after noon. He had lunch and waited in a room by himself until Detective Mohl arrived at 1 P.M. At that time the defendant was told that he was there in connection with the investigation of a mugging which had resulted in the victim's death. The detective testified that he advised the defendant that he had the "right to remain silent," that he had the "right to a lawyer" and that a lawyer would be supplied to him "at his request." He also testified that he told the defendant that anything he said "may be taken down and used in court against him" and that "he had a right to a lawyer even if he couldn't afford one." In response to a question from the trial judge as to what the defendant had said after he was first warned and told about a lawyer, the detective testified that the defendant said he "didn't want a lawyer."
Detective Mohl testified that after he had warned the defendant and had specifically asked him whether he understood his rights, the defendant affirmatively said that he did. The detective stated that he repeated the warnings, and he noted that it was his consistent practice since Miranda to warn suspects repeatedly as to their constitutional rights. He stated further that the defendant, after he had been warned of his rights, said that he wanted to tell him about the mugging incident and that he proceeded to do so orally. After the defendant had completed his oral remarks, the detective told him that a typewritten statement was going to be taken and again advised him that he had the right to remain silent, that any statement could be used against him in court, that he had
the right to a lawyer, and that even if he could not afford a lawyer he could have one "just at his request." After the defendant said he would give a written statement, he was taken to another room where Detective DeSilva had a typewriter.
According to the State's evidence, the defendant filled in and signed a waiver document before the written statement was taken. The date, the time, his name, and the signature affixed to the document which read as follows, were written by the defendant in ink and in a firm, clear hand:
"Paterson Police Detective Bureau
I Thomas Yough knowing where I am, why I am here, have been told that I need not say anything as it may be used against me in a court of law. I have been told that I may call my attorney, or if I cannot afford one, an attorney would be supplied me.
No threats, promises or duress have been used. Knowing and understanding what this means, I waive my right to remain ...