For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino. For reversal -- None. The opinion of the court was delivered by Francis, J.
[52 NJ Page 354] Defendant James Magee was convicted of murder in the first degree and was sentenced to life imprisonment upon the jury's recommendation. N.J.S. 2 A:113-4. The State did not seek the death penalty. He appealed directly to us under R.R. 1:2-1(c) prior to its amendment
on October 5, 1967. The only question presented is whether oral and written incriminatory statements made by defendant while in police custody were properly admitted in evidence.
Shortly after 7:00 A.M. on Saturday, January 15, 1966, the body of a 16-year old girl, Camilla Johnson, was found on the ground near a fence a short distance from the rear of Public School No. 15 in Paterson, N.J. She had been strangled. Autopsy showed a laceration of her left breast, as if it had been bitten, and laboratory tests established recent sexual relations.
During the course of the day, through questioning friends of the decedent, the police learned that Magee was acquainted with her and had been looking for her in the early morning hours of January 15.
Before 5:00 P.M. on January 15 the Paterson police had assembled the following evidence, which was testified to at Magee's trial: At about 3:00 A.M. that morning three men, Edward Lenney, Robert Dries and Joseph Bobacher parked Lenney's car in Paterson Street in Paterson across from a diner. After they had gotten out of the car Lenney saw a girl alight from an Oldsmobile (later established to be Magee's) and walk toward them. She was Camilla Johnson, although none of them knew her. A conversation ensued following which she got into the car with the three men and they drove off. They went to Saddle Brook and parked at the terminal of the trucking company where the three men were employed. There each one in turn had sexual relations with her. Afterwards Lenney and Dries and Camilla Johnson returned to Paterson. They dropped her at about 5:30 A.M. at the corner of Paterson and Van Houten Streets.
Willy Lee Debnan, an acquaintance of both Camilla Johnson and Magee, met Magee around 3:00 A.M. at the diner in Paterson. Magee told Debnan that he had seen Camilla enter a car with three men, and that he was supposed to see her later. Debnan left the diner and returned around 5:00 A.M. Magee was still there and apparently concerned that Camilla had not returned. A few minutes later Magee, Debnan and
another friend, Harry Oldham, drove to a wooded area in Totowa Borough where they thought the three men might have taken her. Their search being unsuccessful they came back to the diner in Paterson around 5:35 A.M. and Magee dropped the two men off. Where he went after that they did not know. Oldham and Debnan continued their search for Camilla in the area and about 6:45 A.M. went into Sharpe's Restaurant which was in the neighborhood. There they met Carol Gibbons, another friend of Camilla's. She was also a friend of Magee's and saw him frequently. "On towards" 7:00 A.M. Magee came into the restaurant. All four of them began to discuss Camilla's absence, and in a few minutes left in Magee's car to search for her. They returned to Sharpe's at about a quarter of eight. A conversation ensued about Magee and Carol Gibbons driving to New York. Magee made a telephone call following which he and Mrs. Gibbons left for New York.
Although the police had not interviewed Mrs. Gibbons before 5:00 P.M. on January 15, they did bring her to headquarters around 9:00 P.M. that evening. She told the police, and so testified later, that she saw Magee around 4:30 A.M. on January 15 sitting in his car across the street from Sharpe's. He said he was waiting for Camilla Johnson. Mrs. Gibbons then went to Passaic with some friends, returned to Sharpe's about 6:35 A.M., ordered coffee and was drinking it when Magee walked in. She confirmed the facts Oldham and Debnan had furnished about the renewed search for Camilla in Magee's car and the subsequent return to Sharpe's. After some further discussion as to what might have happened to her, Magee suggested that Mrs. Gibbons call the hospital to "find out if she was hurt or anything." Mrs. Gibbons telephoned one hospital and was told that the information office was not yet open. The matter was then dropped. She and Magee drove to an apartment house in New York where she remained about a half-hour. He left her for about fifteen minutes of that period. They returned to Paterson around 11:00 A.M. He dropped her at a friend's house there.
Around 5:00 P.M. on January 15, Lieutenant Peter Ventimiglia of the Paterson Police Department telephoned Magee at his home in Teaneck, N.J. and asked him to come to headquarters for questioning in connection with the murder of Camilla Johnson. Magee was aware of the death. Oldham had telephoned the news at 11:30 A.M., saying she had been found dead near a school yard. Carol Gibbons had called him also, apparently shortly before Lieutenant Ventimiglia, advising him that Camilla was dead. Magee arrived at headquarters about 5:30 P.M. to 5:45 P.M. where he met Lieutenant Ventimiglia who took some preliminary biographical data, and inquired if he knew Camilla Johnson. He was then taken to a large room where he said he saw his friends Willy Lee Debnan, Harry Oldham and Carol Gibbons. (It seems unlikely that he saw Mrs. Gibbons at that time. The testimony is that she was not brought in by the police until some hours later.) From there he went to a smaller room where he was first questioned. According to the State, Captain Gourley and Detectives Mahull, Pinello and Campbell were present. Magee inquired as to why he had been summoned and what the charge was against him. Gourley testified that he told Magee they were investigating a homicide; they had information that he had known the deceased Camilla Johnson, and they wanted to speak to him about her death. Gourley then told the defendant,
"* * * that he didn't have to say anything if he didn't want to, that he was entitled to a lawyer to be present. If he didn't want a lawyer, or if he couldn't afford a lawyer that the Court would appoint one for him and anything he did say could be used subsequently at this trial if the case came to court."
Mahull and Pinello confirmed Gourley's statement that these warnings were given. Campbell did not testify. He had resigned from the police department prior to the trial. On direct examination Magee denied that Gourley was present at the time and denied also that he received the warnings or advice as to his rights. He insisted he first saw Gourley
the next morning, Sunday, January 16. But on cross-examination he testified:
"Q. Did you see Captain Gourley that evening?
A. I don't remember seeing him.
A. I don't remember seeing him."
Moreover, in an affidavit filed by Magee in connection with a pretrial matter, he said "a police captain" was present in the room when this first interrogation took place. Gourley said further that he did not see or speak to Magee at all on Sunday, the 16th. In this he was corroborated by Mahull and Pinello, who asserted that there was no questioning of Magee at any time on that Sunday.
According to the officers, when Magee was advised of his rights in connection with the proposed questioning, he said "I don't need a lawyer. I didn't do anything." Magee was not a stranger to courts and lawyers. He had been convicted of robbery in New York State in 1948 and sentenced to five years in prison. In 1963 he had retained an attorney to represent him in connection with the purchase of a home in Teaneck, N.J. That transaction was completed in 1964. The same attorney represented him in several other matters. One was the defense of a civil suit against Magee. Several others involved the prosecution of workmen's compensation claims arising out of work-connected injuries suffered by him. One of these actions was completed while he was in jail and before the trial of the present indictment. One such case was still pending at the time of this trial. When an attorney was called by Magee's wife, he was this personal attorney whose office was only a few blocks away from police headquarters.
Gourley said he participated in the interrogation of Magee for about an hour beginning around 7:00 P.M. on January 15. Then he departed leaving Magee with the other
officers. The questioning continued at short intervals thereafter, apparently in the captain's office and other rooms. Magee denied he had anything to do with Camilla Johnson's death. The investigation was simultaneously proceeding in other directions during this evening and night. The detectives were interviewing Lenny, Bobacher, Dries, Debnan, Oldham and Carol Gibbons. As the result of the interviews, however, in the early morning hours of January 16, Debnan, Oldham and Carol Gibbons were arrested as narcotics users, and around 3:30 A.M., on the basis of information obtained from those persons, Detective Mahull arrested Magee as a seller of narcotics. The department record shows that all four of them were booked on those charges at about 4:00 A.M. When the booking was finished, Magee and the others were placed in cells and Mahull went home, ending the investigation for the night.
As had been indicated, the officers said Magee was not questioned at all during the day on Sunday, January 16. Captain Gourley and Mahull returned to headquarters at 1:00 P.M. that day. The investigation of the death continued then, consisting among other things of some further interviews with Carol Gibbons, Debnan, Oldham, Lenney, Bobacher and Dries. On Monday, January 17, Gibbons, Debnan and Oldham were arraigned on the narcotics charge. For some reason, Magee's arraignment was postponed until the next morning. Thereafter, according to Mahull, from 10:30 A.M. to 6:00 P.M., he was engaged in taking formal statements from Carol Gibbons and Debnan, and in questioning Oldham. Around 6:00 P.M. Mahull went to a small interrogation room where Magee was at the time, bringing with him sandwiches and coffee. After giving him the food, Mahull remained, at his request, and the two talked for an hour and a half. According to the State this was the only police contact with him on January 17. The conversation was friendly, said Mahull, there was some discussion of bowling, and at Magee's request he went downstairs to get cigarettes for him. Mahull said, however, he thought Magee had killed the girl, told Magee
he thought so, and asked him to admit it. Defendant refused, saying he did not kill her, and "You wouldn't want me to tell a lie." Around 7:30 Mahull left, made up some reports and went home. Magee was returned to his cell shortly afterward.
The next morning, Tuesday, January 18, Mahull came to headquarters about 9:00 A.M. for Magee's arraignment on the narcotics-sale charge. He went to the cell block and spoke to defendant, telling him he would be going before the magistrate very shortly. At this Magee asked if Mahull was not going to talk to him "some more." Mahull answered there was no point in further talk since he had denied involvement in the murder, whereupon defendant said "Suppose I want to tell you that I did kill Camilla Johnson and wanted to tell you about it." Mahull replied he could prove it by ...