Leonard, Seidman and Bischoff. The opinion of the Court was delivered by Bischoff, J.A.D.
The State appeals, pursuant to leave granted, from an order suppressing defendant's confession. The suppression motion was made on the day of trial but before jury selection. After the motion was granted, further proceedings in the trial court were stayed by order of this court pending our review of that order.
Defendant is charged by indictment with atrocious assault and battery, assault with a dangerous weapon, assault with intent to kill and unlawful possession of a shotgun. The proofs on the motion to suppress show the following facts.
On January 19, 1973 William Frazier was shot while sitting in a bar in Camden. Detective Upshaw learned that the night before the shooting eight or nine persons had been involved in an argument with the victim and that defendant was one of them. In the course of his investigation he sought to interview all of them. Defendant learned through his girlfriend that the police wanted him to come to the police station, and he voluntarily did so. Upon his arrival Upshaw discussed the shooting with defendant and then asked him to take a polygraph test. Defendant did not understand the nature or purpose of such a test and it was explained to him. He agreed to take the test and Upshaw took defendant to a different location in the building where Detective Balzano was to administer the test.
Using the form employed to obtain a written consent to the administration of the polygraph test as a guide, Balzano informed defendant of his rights concerning the polygraph test. When it became apparent to Balzano that defendant was unable to read the form, a clerk was called in to explain to defendant his rights and the form. Defendant initialed the form opposite each warning and signed it. The rights explained to defendant by Balzano and the clerk did not include the warning that anything defendant said could be used against him. Nor is that warning included in the recitation of defendant's rights contained on the printed form which was signed by defendant. Defendant was informed he had a
right to remain silent, to have a lawyer before submitting to the test, to have a lawyer appointed by the court if he could not afford one and that he could stop answering questions anytime he wanted to do so. This form also authorized disclosure of the results of the polygraph test to all interested persons even though the results may be unfavorable to defendant, and included therein was a release by defendant of the City of Camden and its employees and officers from liability for disclosures.
The test took approximately two hours to administer, and after its completion Balzano left the room to study the results. He returned to the room and informed defendant that the test results indicated that he had lied during the administration of the polygraph test; that he was present at the time of the shooting and that he was the one who did the shooting. Defendant continued to deny his presence at the scene of the fight the night before Frazier was shot and denied he had killed Frazier. Balzano continued to confront defendant with the test results and defendant finally confessed to the shooting. Balzano immediately summoned Upshaw who was given the test results and told that defendant had confessed. Upshaw took defendant to the Detective Bureau where he was given full Miranda warnings. He was interrogated and a written confession was obtained.
Admitted into evidence at the hearing was a report from a psychiatrist finding defendant mentally retarded, unable to read a newspaper and unable to understand the written waiver from which he had signed.
1) the warnings given prior to administration of the polygraph test were adequate for that purpose;
2) once the defendant knew he had failed the polygraph test he was in custody and Miranda warnings were necessary;
3) the warnings given prior to administration of the polygraph test did not satisfy the requirements of Miranda;
4) the oral confessions were not voluntary but the result of interrogation and should be suppressed;
5) the written confession taken immediately thereafter, even though immediately preceded by full Miranda warnings, was tainted by the prior inadmissible, involuntary, oral confession and, as such, was also inadmissible;
6) defendant was of such limited mentality and understanding that considering the totality of the circumstances the confessions were the result of overbearing of ...