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State v. Sherwood

Decided: February 5, 1976.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD SHERWOOD, DEFENDANT-APPELLANT



Lynch and Larner. The opinion of the court was delivered by Larner, J.A.D.

Larner

Defendant was found guilty by a jury on two counts of an indictment charging possession of LSD (N.J.S.A. 24:21-20(a)) and possession with intent to distribute (N.J.S.A. 24:21-19(a)(1)). The court sentenced him to concurrent terms of three to five years in New Jersey State Prison.

The major issue on appeal relates to the adequacy of Miranda warnings as a prerequisite of the admission into evidence of an inculpatory oral statement by defendant.

It was established at the voir dire hearing that police officer Repetti advised defendant of his rights as of the time of his arrest in the following manner:

I told him that he has a right to remain silent. Anything he says in my presence can and will be held against him in a Court of law. He has a right to an attorney. His right is to have that attorney present while he's being questioned by the police. If he cannot afford an attorney one will be presented to him at no cost or fee to him.

Defendant was then asked whether he understood his rights to which he responded in the affirmative. It was 15 or 20

minutes later at police headquarters that defendant made the statement in question in response to questioning by one of the detectives.

Although defendant denied receiving these warnings the court found as a fact that they were given, and we accept that finding as based upon the credible evidence in the record. State v. Johnson , 42 N.J. 146, 162 (1964).

The constitutional infirmity advanced by defendant is the failure to advise him additionally that he could terminate the questioning at any time. Defendant relies upon the cases of State v. Hampton , 61 N.J. 250, 265 (1972), and State v. Melvin , 65 N.J. 1 (1974), in support of his position.

In State v. Hampton the Supreme Court, among other unrelated issues, modified the procedure whereby the determination of admissibility of a statement or confession from the viewpoint of satisfaction of Miranda requirements was left to the court alone, with its weight and credibility left to the jury. 61 N.J. at 270. In reviewing the history of the law leading to the divergence of views relating to judge and jury participation in the decision-making process, the opinion, in passing, noted that the requirements of Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), required five warnings:

In State v. Melvin, supra , 65 N.J. at 12-13, the court found that there was no causal connection between the inculpatory statement at issue and the failure to give Miranda warnings at the time of earlier questioning because defendant said nothing inculpatory on those prior ...


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