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State v. Kelly

Decided: July 17, 1972.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
RAYMOND KELLY, DEFENDANT-RESPONDENT



For modification and remand -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the Court was delivered by Jacobs, J.

Jacobs

[61 NJ Page 284] The defendant was convicted of having stolen a revolver in violation of N.J.S.A. 2A:119-2. On appeal, the Appellate Division reversed and remanded for a new trial. 113 N.J. Super. 169 (1971). Thereafter we certified on the State's application. 58 N.J. 601 (1971).

On the morning of September 13 Walter King arrived at the plant of Automotive Enterprises, Bloomfield, where he was employed as a receiving clerk. King also worked parttime as a night security guard for the State Patrol Service, a private nongovernmental agency, and when he arrived at Automotive Enterprises he was still wearing his guard uniform and carried a .38 caliber revolver. While he was changing into regular work clothes in the men's room at Automotive Enterprises, the 8 A.M. bell rang and he hurriedly went to work. In his haste he left his holstered gun on a wooden bench in the men's room. At about 9:30 A.M. King discovered that his gun had been stolen and he reported its disappearance to his foreman Larry Preteroti and to the Bloomfield Police Department.

The defendant Raymond Kelly was also employed by Automotive Enterprises and on September 13 he arrived at the plant along with King and others. At that time Automotive Enterprises employed seven men and a greater number of women. At 8:56 A.M. the defendant "punched out" his timecard and left the plant. He did not inform anyone that he was leaving but the foreman Preteroti saw him leave. No other employee had left the plant when King learned about the disappearance of his gun. Later, during the same day, King and Eugene Easton, who was also employed at Automotive Enterprises and was the defendant's roommate, went to the defendant's rented room in Newark in the company of police officers. They did not find the defendant nor did they locate the revolver. Although the defendant never returned to work at Automotive Enterprises, King's interest in locating him still remained.

On or about September 20 King, in the company of Perry Dye (or Dike) and Franklin Williams who were also employed by the State Patrol Service, went looking for the defendant. They were then dressed in their security guard uniforms and were led by a fourth person to the corner of Charlton and West Kinney Streets in Newark. King saw the defendant across the street and when he called to him the defendant

came over. According to King's testimony he asked the defendant why he had taken his gun and the defendant said, "he needed the money so he took it." Williams testified that when King asked why he stole the weapon the defendant said, "he needed the money" and that when King asked where the weapon was, "he said he had sold it to some fellow on Hunterdon Street." The defendant was arrested and later made confessing statements to a Newark police officer, in the presence of a Bloomfield police officer, but did not sign anything. After conducting a preliminary hearing with respect to the admissibility of the statements made to the police officer, the trial court ruled that the police officer could not testify as to those statements since there was no waiver by the defendant of his constitutional rights within the principles expressed in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2 d 694 (1966). However, the trial court considered that Miranda was inapplicable to incriminating statements made not to police officers but to private persons such as King. It denied defense counsel's request that a preliminary hearing be conducted with respect to the legal voluntariness of the incriminating statements made to King and ruled that the jury could consider those statements along with the other evidence in the case.

At the trial, the defendant acknowledged that he left the plant during the morning of September 13 without notifying his supervisor and that he never returned to his job or to his room in Newark. He also acknowledged that he told King he had taken the gun and had sold it; but he denied that he had in fact stolen the gun and said he made up the story of having taken the gun and having sold it because he was afraid. He testified that when he first spoke to King and the others he denied taking the gun but then they "had my arms twisted about where my shoulders were" and in order to avoid getting hurt he said he had committed the theft and had sold the gun. He also testified that he later told the same thing to the police officers who arrived after he had made his statements to King. After the trial court delivered its charge

to which defense counsel made no objection, the jury found the defendant guilty and he was sentenced to an indeterminate term at Yardville.

On his appeal to the Appellate Division the defendant contended that Miranda was applicable to the statements made to King and that since the defendant admittedly was not given any Miranda warnings by King the statements should have been excluded without more. This contention was rejected by the Appellate Division. 113 N.J. Super. at 172. The defendant also contended that the trial court should have conducted a preliminary hearing as to the legal voluntariness of the statements made to King. The Appellate Division agreed with this contention and ordered a new trial. 113 N.J. Super. at 171.

We agree with the Appellate Division's view that since King was a private individual rather than a policeman or other governmental officer (see United States v. Antonelli, 434 F.2d 335, 337 (2 Cir. 1970); People v. Frank, 52 Misc. 2 d 266, 275 N.Y.S. 2 d 570, 572-573 (Sup. Ct. 1966)), he was under no responsibility to give the Miranda warnings. Those warnings were designed to counteract the coercive nature of in-custody governmental inquiries; in State v. Williams, 59 N.J. 493, 501 (1971), the Chief Justice recently noted that we have consistently read Miranda to apply only to "custodial interrogation by the police." Cf. State v. Graves, 60 N.J. 441 (1972). Elsewhere throughout the states Miranda has been read in similarly restrictive fashion. See, e.g., State v. Bolan, 27 Ohio St. 2 d 15, 271 N.E. 2 d 839 (1971); State v. LaRose, 286 Minn. 517, 174 N.W. 2 d 247 (1970); State v. Hess, 9 Ariz. App. 29, 449 P. 2 d 46 (1969); State v. Valpredo, 75 Wash. 2 d 368, 450 P. 2 d 979 (1969); Hood v. Commonwealth, 448 S.W. 2 d 388 (Ky. 1969); State v. Little, 201 ...


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