For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None.
Defendant was convicted of murder in the second degree in the Passaic County Court and sentenced to 14 to 15 years imprisonment. The judgment was affirmed by the Appellate Division in an unreported per curiam opinion. This court granted certification. 55 N.J. 167 (1969).
After argument we directed the trial judge to certify whether in considering the admissibility of two alleged confessions, he had passed on the Miranda problems involved and the voluntariness of the confessions. We further requested that he make and file detailed findings of fact with respect to those issues. In response to the requests, the trial judge certified that on the voir dire, out of the presence of the jury, he considered both the Miranda and voluntariness questions in passing on the admissibility of defendant's statements. More specifically, he found that the Miranda warnings were given prior to both confessions and that defendant made an effective waiver of his rights because he confessed immediately after the warnings were given.
It is uncontroverted that defendant requested counsel prior to his first interrogation but that no lawyer was present during either interview. The trial court made no express ruling on the effect of the failure to comply with the request and the continued questioning after that request. The absence of any such ruling on the effect of that request and the continued questioning of defendant after an unsuccessful
attempt to contact his lawyer, may be explained by the fact that this testimony was not disclosed on the voir dire but rather upon cross-examination when Lieutenant Lumley, the questioner, testified before the jury.
The transcript submitted by defendant contained only the testimony relevant to the admissibility of defendant's confessions. At argument, counsel were directed to furnish this Court with a complete transcript in order that the question of prejudice could be considered, in the event it were determined that either confession had been improperly admitted. We now have that record.
The uncontroverted facts adduced at trial are that: Defendant was tending bar in a tavern owned and operated by him in the City of Passaic at about 11:00 P.M. of March 1, 1968. Three customers were then at one end of the bar. Defendant's estranged wife, who had arrived at about 9:00 P.M., was seated at the other end of the bar. In effect, all three customers testified that the atmosphere was pleasant and relaxed. At about 11:00 P.M., defendant bought the three a drink, chatted with them for a few minutes and then moved to the other end to converse with his wife. The three continued their conversation. They suddenly heard a shot and saw the wife of defendant slump over. All three left the tavern. One of them called the police who arrived shortly thereafter and were admitted by defendant.
Defendant was taken to police headquarters where questioning was undertaken by a Lieutenant Lumley who had been friendly with defendant for some years past. At about 11:50 P.M., Lumley made notes of the interview but did not prepare a formal written statement. These notes read in part that defendant said:
"I had a gun in my pocket, a .22 caliber; had argument with Olga. She called me chicken. I told her I was going to harm her. If you do something wrong to me. I took the gun out of my pocket. She was sitting at the bar and I served her a drink.
I served her a double shot of vodka, a shot of dry vermouth. She
called me to have a drink. I can't drink, she said. She called me chicken. She called me everything. I said I am going to shoot you one of these days. I took the gun out of my pocket and shot it at her. She fell off the ...