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State v. Davis

Decided: February 20, 1974.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAYMOND DAVIS AND ERNEST PACE, DEFENDANTS-APPELLANTS



Handler, Meanor and Kole. The opinion of the court was delivered by Meanor, J.A.D.

Meanor

[127 NJSuper Page 56] These defendants appeal their convictions for armed robbery. The offense took place October 4, 1968 at the home of Joseph Celona, Pleasantville, New Jersey.

At the time Celona was at the dining room table counting the day's receipts from his retail store. In the living room of the home were Mrs. Mary Heckroth, who is Celona's sister, and their elderly parents. When Celona answered a knock on the door, defendants entered, announcing "This is a stick up." Defendant Ernest Pace had a shotgun and defendant Raymond Davis brandished a pistol. The thieves took $1,200 to $1,500 in cash and checks.

I

Both defendants offered an alibi. Pace did not testify but produced three witnesses who claimed that he was in Chicago at the time of the offense. His aunt, Mary Ann Williams, testified that on October 1 Pace left for Chicago in her car to obtain some personal papers she had left there. He returned October 8. Mrs. Evelyn Barber, Pace's fiancee, said that she, Wanda Williams and another young woman had accompanied Pace to Chicago, leaving New Jersey October 1 and returning about October 8. Miss Williams, Pace's cousin, also corroborated the alibi. The other participant in the trip did not testify because, it was said, she remained in Chicago. Obviously, the jury did not believe the alibi.

To rebut the alibi the State called William Harris. He testified that he had a conversation with Pace on November 14, 1968, during which Pace claimed that he was in Camden on October 4 and in Newark after that, returning to Atlantic City on October 11. Neither Harris' occupation nor his reason for the conversation with Pace was brought out on direct. Harris was in fact Pace's parole officer, and Pace was on parole at the time of the Celona robbery.

Disregarding his attorney's advice, Pace had it brought out on cross-examination that Harris was a parole officer, that Pace was on parole on October 4, and that his departure from the State without permission would have been a violation of parole. It was also established that the interview by Harris took place while Pace was confined in the Atlantic County

Jail. Proper objection was made to Harris' testimony on the ground that its admission violated Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Miranda bars from evidence statements taken by law enforcement officers as a result of custodial interrogations unless prior thereto the accused has been advised of a well-known litany of rights and has knowingly and voluntarily waived them. State v. Hampton, 61 N.J. 250, 265 (1972); Mathis v. United States, 391 U.S. 1, 88 S. Ct. 1503, 20 L. Ed. 2d 381 (1968).

We need not decide whether the interrogation by Harris, directed solely to Pace's parole and not part of an ongoing investigation of a subsequent crime, required the Miranda warnings. We hold that the exclusionary rule of Miranda does not reach the State's presentation of Harris' testimony in rebuttal.

That Miranda does not bar all use of voluntary incustody statements taken by law enforcement officers in the absence of the required warnings and a waiver thereof was made clear in Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). Here, as in Harris, no question has been raised concerning the voluntariness of the statements involved. Harris held that a defendant's non- Miranda statement, while not available during the State's case in chief, could be used to affect the defendant's credibility. The Harris rationale of permitting the impeachment use of evidence not available to the State on its main case is not a new one. Annotation, "Impeachment of accused as witness by use of involuntary or not properly qualified confession," 89 A.L.R. 2d 478 (1963). Harris was anticipated by this court in State v. Kimbrough, 109 N.J. Super. 57, 65-68 (App. Div. 1970). See also, State v. Slobodian, 120 N.J. Super. 68 (App. Div. 1972), certif. den. 62 N.J. 77 (1972).

It is true that Harris arose in a context where the non- Miranda statement was used in cross-examination followed by an instruction that the statement could only be considered by the ...


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