For reversal -- Justices Jacobs, Hall, Sullivan, Pashman and Clifford. For affirmance -- None. The opinion of the court was delivered by Clifford, J. Garven, C.J., participated at oral argument only. Pashman, J., concurs in result.
From a judgment of conviction of murder in the first degree after a jury trial and the consequent sentence of life imprisonment defendant appealed to the Appellate Division. His conviction was reversed and the case remanded for a new trial. The single ground for reversal, set forth in an unreported opinion, was the admission of testimony indirectly revealing the operator's interpretation of the result of a polygraph examination. This was said to constitute plain error under the circumstances, R. 2:10-2. Our review after certification on the State's petition, 63 N.J. 256 (1973), leads to a different conclusion from that reached by the Appellate Division. We reverse and reinstate the judgment of conviction.
Defendant and two other young men, William Hayes and Ronald Glover, were indicted and tried separately for the murder on September 8, 1969 of one John Millerick in Trenton. Hayes was convicted, the conviction sustained on appeal and certification denied by this Court, 60 N.J. 139 (1972). Glover likewise was convicted but there was a reversal in the Appellate Division and certification was denied, 60 N.J. 353 (1972). We have not been informed of the result of any retrial. The theory of all three cases was felony murder.
On the evening of September 8, 1969 John Millerick left a meeting at St. Joseph's Church on North Olden Avenue, Trenton. While crossing the North Olden Avenue bridge on the way to his brother's house he was robbed, then shot. He fell to the ground, bleeding from the chest. The victim was discovered by a member of the Trenton Police Department at 8:17 P.M. and was taken to Helene Fuld Hospital where he died at 9:25 that same evening. An autopsy revealed that death was caused by two bullets in the vicinity of the heart. Examination of Millerick's clothes disclosed that one of the chest wounds was caused by a gunshot from less than 14 inches.
On October 6, 1969 the defendant, Belvin Melvin, was arrested and charged with petty larceny for a shoplifting offense, unlawful possession of narcotics paraphernalia, and unlawful use of heroin. On October 7, 1969 he pleaded guilty to the first two offenses and was convicted of the third offense. Melvin was committed to Mercer County jail that afternoon to begin serving his sentence of three months.
On October 6, 1969 Detective Babecki of the Trenton Police Department received an anonymous call informing him that the defendant might have some information pertaining to his investigation of the murder of John Millerick. He interviewed the defendant for about 20 minutes at 7:55 P.M. that day while Melvin was in custody for the shoplifting and drug charges. Babecki did not at this time give the warnings set forth in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Defendant maintained that he knew nothing of the murder except what he read in the newspapers. He stated that between 6:45 and 9:15 P.M. on the evening of the murder he was at Hustler's Pool Room in Trenton, after which he returned home.
Detective Babecki asked the defendant whether he would be willing to take a polygraph test and Melvin agreed to do so. Forty-five to fifty people had been interviewed prior to the defendant in the course of this investigation. All had
been requested to take a polygraph test and twelve to fifteen had done so.
The defendant was again interviewed by Detective Babecki for about 20 minutes the following morning, October 7, 1969 prior to his trial that afternoon in Municipal Court on the unrelated offenses referred to above. He again maintained that he knew nothing about the murder, repeated his alibi and again expressed his willingness to take a "lie detector" test.
On October 9, 1969 a polygraph examination was administered to the defendant by Detective Patrick Vona of the New Jersey State Police. Detective Vona, for the first time in the investigation, informed the defendant of his constitutional rights both orally and in writing. Immediately after the polygraph test the defendant admitted to Vona that he was involved in the Millerick murder, after which a full written confession was obtained under circumstances outlined herebelow.
The State's case at trial consisted of the defendant's confession corroborated by details of the crime which were in agreement with the defendant's statements. The trial judge first conducted an extensive voir dire hearing into the voluntariness of the defendant's confession and determined, largely on the basis of the testimony of Detectives Vona and Babecki, that timely and sufficient warnings of constitutional rights were given in compliance with Miranda, supra.*fn1 He further concluded that even if the warnings should have
been given prior to the first two interviews with Detective Babecki, no information which could be used against the defendant was derived from those interrogations and so Melvin was not prejudiced by the absence of the warnings. The trial court's ruling was that the confession was voluntarily given.
Before the jury, and as bearing on the issue of whether the confession was voluntarily made (which defendant's attorney conceded at oral argument), the State again relied on the testimony of Detectives Vona and Babecki, particularly to detail the circumstances surrounding the giving of defendant's version of the incident. Vona's recitation of the polygraph examination procedure included the ten test questions which had been put to defendant. He did not reveal the answers nor furnish an opinion on the results. Vona said that after completing the examination defendant told him that he was present along with two other persons at the scene of the crime and that they had intended only to rob the victim and not to kill him. At 2:00 P.M. when the polygraph test was completed, Melvin asked to speak with the "prosecutor"; the assistant prosecutor was conducting grand jury proceedings and did not arrive until 4:30 P.M. While waiting for the assistant prosecutor the defendant repeated some of his admissions to Vona and said he was sorry the whole thing had occurred. He asked Vona to pray with him, whereupon they knelt and prayed together. When the assistant prosecutor arrived, the defendant gave a more detailed oral confession, which Vona related to the jury. Vona left shortly after the defendant indicated that he would give a written statement.
Detective Babecki repeated before the jury his voir dire testimony as to the anonymous telephone call and the two interviews with the defendant discussed ante. He stated that about an hour and a half after Vona and the defendant entered the polygraph room, Vona emerged and requested that the assistant prosecutor be asked to come to the room. Babecki was present that afternoon with the assistant prosecutor
when the defendant made a detailed oral confession and later that evening when he signed a written statement, both preceded by proper Miranda warnings.
The defendant's written confession was admitted into evidence. In it Melvin said that on September 8, 1969 at 6:30 P.M. he met Ronald Glover and William Hayes at a bar. All three left the bar together and proceeded to walk in the Olden Avenue area. As they were walking, they discussed their need for money, which in Melvin's case was required in order to obtain "drugs." They then decided to rob somebody. Glover spotted a white man walking toward the Olden Avenue bridge and said "This is our chance." Before they started to pursue the intended victim, Hayes handed Melvin the revolver and Melvin loaded it. Melvin was the first to catch up with the man and he asked for a cigarette, which the victim gave him. It was a Pall Mall. Melvin then demanded his money, pointing the revolver at his chest. The victim gave him his wallet, some change, a copper-colored cigarette lighter, a whistle on a chain, and a Timex wristwatch with a stretch wristband, after which he was told by Glover to take off his shoes. Glover checked the shoes and patted down the victim's pockets and socks to see if he had any more money. After this Millerick was told by Glover to lie face-down on the ground, which he did. Glover then told Melvin to shoot the man. Melvin aimed the gun at his feet "so as not to hit him" and fired. The three then started to walk away. They looked back and saw that the victim had gotten up and was bending over to put on his shoes. Glover took the revolver from Melvin, ran back, and fired two shots into the man's chest. The victim fell to the ground. Melvin and Hayes began walking away again, with Glover a short distance behind them. They passed two white boys as they walked off the bridge, at which point Melvin turned his head to conceal his face. They eventually made their way to Glover's house and went into the kitchen where Glover opened the wallet containing four dollars. Melvin took the watch, the cigarette lighter and
the whistle. After Glover's cousin came into the kitchen, Melvin, Hayes and Glover went upstairs to a bedroom, where Melvin asked Glover why he had shot the victim. Glover said he did so because the victim had seen his face and he could not afford to get "busted." Glover placed the gun in a cardboard box. Melvin left and arrived home at about 9:15 P.M. He subsequently discarded the stolen items which he had taken and specifically recalled throwing the watch into a sewer at the corner of Webster Street and Clinton Avenue.
The defendant's confession was corroborated by the testimony of a number of witnesses. Dr. Matthew Lapin, Deputy County Medical Examiner, who performed the autopsy on John Millerick, confirmed that the victim died as a result of two bullet wounds in the chest and that he also sustained a third bullet wound in his hand. James D. Kowalik, a ballistics expert, said that the bullet which killed John Millerick was fired from a .22 caliber gun.
Edward Millerick, the victim's brother, testified that his brother always carried two packs of Pall Mall cigarettes in plastic containers, his Timex wristwatch, a gold cigarette lighter and a key chain with a whistle on it. James Rue, the Trenton patrolman dispatched to the scene of the crime, recalled that when he found the victim, his right shoe was off and there was a yellow plastic case containing Pall Mall cigarettes in his pocket. Captain John F. Fowler found a second plastic case, also containing a pack of Pall Malls, on the railroad tracks beneath the bridge. Lieutenant Leon H. Smith found a Timex wristwatch and a separate metal stretch watchband in a sewer in the vicinity of the bridge (at the corner of Webster Street and Clinton Avenue).
William H. Brady testified that on the night of the murder he was driving in the vicinity of the Olden Avenue bridge. He was stopped at a nearby intersection when he heard three shots fired in rapid succession. Immediately looking back toward the bridge, he saw from a distance of about 250 feet four men standing on the bridge, one of whom fell to
the ground. The other three men proceeded to walk off the bridge, and two other people were walking onto the bridge in the opposite direction. Mr. Brady promptly stopped his car and proceeded on foot to the bridge where he found the victim lying on the sidewalk. By this time Charles Breese had reached the scene of the shooting.
Charles F. Breese and Leroy H. Chamberlain were the two young men whom Mr. Brady saw walking onto the bridge as the perpetrators of the crime were departing the scene. Although they did not hear shots, they did hear a siren and went over to the bridge to investigate. Three black men passed them on the bridge, the tallest of whom was trailing a short distance behind the other two, after which they noticed the body of the victim lying on the sidewalk. Chamberlain rushed to a nearby bar to call the police. Meanwhile, Mr. Brady had reached the scene and shortly thereafter the police and an ambulance arrived. Neither young man ...