For reversal -- Chief Justice Weintraub, Justices Jacobs, Hall and Mountain, and Judge Sullivan. For affirmance -- None. The opinion of the Court was delivered by Sullivan, P.J.A.D., Temporarily Assigned.
Defendant was found guilty, by jury verdict, of a violation of N.J.S.A. 2A:94-1 (breaking and entering with intent to steal). He was sentenced to an indeterminate term at the Youth Reception and Correction Center in Yardville. On appeal, the Appellate Division reversed the judgment of conviction in an opinion reported in 118 N.J. Super. 77 (1972). The Appellate Division held it was "plain error" to have the jury consider evidence of the results of a polygraph test taken by defendant during trial. The test was administered to defendant and the results thereof admitted into evidence by virtue of a stipulation entered into by defendant and his attorney and the State. The test results indicated that defendant was not telling the truth when he denied his involvement in the particular breaking and entering. This Court granted the State's petition for certification. 60 N.J. 351 (1972).
On January 26, 1970 at approximately 9:30 P.M. the police of Bridgewater Township responded to a reported breaking and entering involving a private dwelling. They found a cellar window broken in the house and upon conducting a search of the premises found a man, later identified as Michael Wescott, hiding under a bed and another man, later identified as Frank McGinnis, hiding in the bedroom closet.
The men were arrested, advised of their constitutional rights, and taken to police headquarters. There McGinnis told the police that defendant Lonny McDavitt was also involved in the breaking and entering and had been acting as lookout while McGinnis and Wescott entered the house. He gave the police the following description of defendant and the clothing he was wearing: "a white male wearing black trousers, a black ski jacket, work shoes, six feet four inches, heavy build, brown-blonde hair." This information was received
shortly after 10:00 P.M. and broadcast to all Somerset County police departments at 10:18 P.M. At 11:20 P.M. a teletype alarm was sent out for McDavitt who was apprehended in the Town of Dover, Morris County, around midnight of the same evening. When arrested, he was wearing clothing which closely matched the description given the police by McGinnis.
The only evidence implicating defendant in the crime came from McGinnis who had been jointly indicted with defendant, but pleaded guilty prior to trial and testified as a witness for the State. McGinnis had not yet been sentenced when he testified at defendant's trial that defendant had actually instigated the criminal activity, selected the house to be broken into, kicked in the cellar window, and was acting as lookout while McGinnis and Wescott entered the house.
Defendant took the stand in his own behalf. He denied involvement in or knowledge of the breaking and entering and asserted that he had not been in the company of McGinnis and Wescott any part of the day in question.
Wescott, who had previously pleaded guilty to a separate charge of breaking and entering and received a jail sentence, testified as a defense witness. His story was that only he and McGinnis were involved in the crime and that defendant was not with them that night.
Defendant's brother Lynn McDavitt, his mother LaVerne McDavitt, Mr. and Mrs. Anthony Tinc and William Strathem also testified in support of defendant's version of his whereabouts that evening.
The polygraph test incident which the Appellate Division found amounted to "plain error" came about as follows:
Detective James Ibach of the Bridgewater Township Police, a State's witness, had testified that in the early morning hours of January 27th, after word had been received of defendant's arrest in Dover, he and another officer went there with the arrest warrant, picked defendant up and brought him back to Bridgewater.
On cross-examination by defense counsel he was asked about the conversation he had with defendant while driving back from Dover. Specifically, counsel asked whether defendant told him "that you could submit him to some sort of test." The prosecutor's objection to the question was overruled and the detective answered that he did not recall any such offer. At a side bar conference the prosecutor again objected to this line of questioning and the court admonished defense counsel not to imply "that it is a polygraph test or a lie detector test, and I think under the circumstances you should not try to pursue this any further."
When defendant took the stand in his own defense he was asked by his attorney what he said when he arrived at the Bridgewater Police Headquarters after he had been brought there from Dover and learned, for the first time, the nature of the charge against him. His answer was "* * * I am trying to think of the detective's name whom I offered myself to take a polygraph test." The prosecutor objected to any reference to a polygraph test at side bar but the trial court overruled the objection. Defendant then testified that upon arriving at Bridgewater Police Headquarters and learning of the charges against him, he offered to take a lie detector test "to prove my innocence."
On cross-examination the prosecutor asked defendant whether he would be "willing to take a polygraph test today." Defendant answered in the affirmative.
At this point the jury was excused and the prosecutor advised the court that if defendant passed the polygraph test the State would not oppose a motion for acquittal. However, if he failed the test, the jury was to be informed of the results of the test. Counsel for defendant replied: "It is perfectly understandable and it is only fair."
Defendant after having been advised by the court that he had an absolute right to refuse to submit to the test, withdrew his consent and asked that the trial proceed. The prosecutor then stated that the only inference that could now be ...