Bennett, J.s.c. (temporarily assigned)
This case involves two pretrial motions which have been consolidated for purposes of hearing and decision. Indictment No. 813-68 charges defendant Roy Price with murder. The first motion is to dismiss the indictment on the ground that the evidence presented to the grand jury for its consideration was legally insufficient to sustain a true bill. The second motion is to suppress certain evidence seized as a result of a police search of Price's apartment.
An indictment should be quashed only when palpably deficient. State v. Riley , 97 N.J. Super. 542 (Law Div. 1967), cert. den. 390 U.S. 969, 88 S. Ct. 1085, 19 L. Ed. 2 d 1177 (1968); aff'd. 101 N.J. Super. 402 (App. Div. 1968). The transcript of the grand jury testimony in this case clearly indicates that sufficient evidence was presented to sustain an indictment. Although there was no eyewitness testimony before the grand jury, there was substantial and rationally persuasive circumstantial evidence upon which to find a true bill. Further, it is well established that the grand jury is permitted to both hear and act upon hearsay evidence or even evidence unconstitutionally obtained by the police. Costello v. United States , 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1959); United States v. Blue , 384 U.S. 251; 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966). If the evidence is either tainted or incompetent in some fashion, defendant has adequate legal remedies at a later stage in the proceedings against him. While a grand jury cannot be permitted to indict upon mere whim or caprice, it is only required to find that a crime was committed and that the accused person
should be required to stand trial on the charge. State v. Riley, supra; Rosetty v. Township Committee of Hamilton Tp. , 82 N.J. Super. 340 (Law Div. 1964), aff'd. 96 N.J. Super. 66 (App. Div. 1967). In this case there can be no doubt that the grand jury acted properly in basing its indictment on the evidence presented to it. The motion to dismiss the indictment is denied.
The motion to suppress is somewhat more complex. On April 6, 1969, at approximately 3 A.M., the Trenton police found the victim seriously injured at her home. She died from those injuries some ten hours later. Defendant occasionally performed odd jobs for the deceased woman. A witness placed Price at the scene of the murder for a short time at approximately 4:30 P.M. on April 5. On Monday, April 7, the day following the murder, Price was picked up by the police and transported to headquarters for questioning. In responding to his interrogators, Price allegedly gave confused and conflicting accounts of his whereabouts on the day of the murder. Later that evening the police charged Price as a material witness and held him for appearance in court. At his appearance the following morning the municipal magistrate advised Price of his rights and held him as a material witness on $10,000 bail. Price could not make the bail and was remanded to the Mercer County jail. On April 9, the following day, the police obtained a court order releasing Price into their custody "for the purpose of * * * reenactment of alleged violations of certain criminal statutes." During this "reenactment" Price was escorted to his apartment, where the police entered, searched and then seized a variety of items. The police had not obtained a search warrant. The items seized during the search were sent to the State Police for laboratory tests. On Thursday, April 16, the Trenton police received an unofficial report from the State Police that certain pieces of evidence seized during the search incriminated Price in the murder. The following day, ten days after Price was originally arrested and held as a material witness, he was officially charged with murder.
The State challenges this motion on the ground that it fails to comply with the time requirements of R. 3:5-7(a).
There is no dispute that the motion was not filed within the generally applicable 30-day period. This court recognizes that the purpose of the rule is to foster the early resolution of search and seizure questions and fully supports that policy. This court is also aware that both the rule and the case of State v. Raymond , 95 N.J. Super , 175 (App. Div. 1967) place the burden upon a defendant to show good cause for extending the time limit. However, this court is satisfied that the burden has been met here. The Public Defender in this county attempts to investigate proposed motions to suppress before filing, in order to satisfy himself that sound questions of law or fact exist. Since the Public Defender is aided by a limited staff and saddled with an increasingly burdensome case load, this process occasionally requires more time than that generally permitted by the rule. This is not to say that the Public Defender has a right to delay. Rather, the applicable test is reasonableness in light of all the circumstances. State v. Wade , 89 N.J. Super. 139 (App. Div. 1965). This court, considering the nature of this particular case and the complexity of the issues, legal and factual, involved therein, finds that the delay was reasonable and extends the time period of R. 3:5-7(a). That being so, the motion to suppress is validly made and will be decided on the merits.
The first task in analyzing the issues presented by this motion is to determine the purpose of the material witness procedure. The authority to confine material witnesses appears to have been unknown to the common law. 20 Wash. & Lee L. Rev. 164 (1963). The earliest statement of the procedure appears in an English statute, 2 & 3 Philip and Mary, c. 10 (1555), which is cited at 7 Catholic U.L. Rev. 37, 38 (1958):
* * * the said Justices shall have Authority * * * to bind all such by Recognizance * * * as do declare any Thing material to prove the said Manslaughter or Felony against such Prisoner * * * to appear * * * where the Trial * * * shall be, then and there to give Evidence against the Party.
The material witness procedure, then, was originally designed to provide a means to insure that a witness who had vital information to give against one accused of ...