Carton, Crahay and Handler. The opinion of the court was delivered by Handler, J.A.D. Carton, P.J.A.D. (concurring in part and dissenting in part).
J.B. and A.T., juveniles, were adjudged delinquent upon a finding that they robbed and murdered one Malcom Tyler. The central issue on these consolidated appeals is whether particular confessions, the only evidence linking them with the crime, were improperly admitted at their trial.
The testimony at trial was that Tyler disappeared on March 28, 1972. He was described as 43 years old, about 5'5", of slight build and with crew-cut length brown hair. Tyler lived in rooms he rented at the home of a Mr. and Mrs. Turpin in Port Norris. In the month preceding his disappearance it had become common knowledge in the community that he had inherited approximately $2,600 from his mother's estate and that he was in the habit of carrying large sums with him.
Early in the evening of March 28, 1972 the Turpins left their home to go to a movie. They did not see Tyler as they left, but they heard the sound of his television set in his room and noticed that his car was parked outside. They locked the front door on their way out. Edward Cox, a friend of Tyler's and a part-time bartender at the Marina Bar in Port Norris, testified that on that same evening Tyler was at the Marina Bar and "drinking pretty good," so much so that Cox eventually refused to serve him further. Shortly thereafter, at about 7:30 or 8.00 P.M., Tyler left the bar. When he had not seen the lights on Tyler's car go on or heard the car start after a few minutes, Cox went outside to investigate -- he wanted to make such particularly that Tyler had not damaged his (Cox's) truck, which was parked next to Tyler's car. He discovered that Tyler was having difficulty locating the ignition with the key and started the car for him. He watched as Tyler drove off down the road toward his home. Cox remained at the bar until 10:00 or 10:30 that night; Tyler did not return during that time.
The Turpins testified that when they returned at about 9:30 p.m. that night they again noticed Tyler's car parked
outside; the front door was unlocked and the evening newspaper, which Tyler was in the habit of bringing in, was inside. Lights were on in Tyler's room and the television was playing, but much louder than it had been earlier. The television and the lights in Tyler's room were on all night, and early the next morning the Turpins called his sister to come and check on him. When they entered his room Tyler was not there and his sister reported to the police that he was missing. About $100 in bills and change was found in a jar in the room.
Five months later a man mowing salt hay in a marsh a short distance from the Marina Bar ran over and picked up with the tractor-drawn mower the badly decomposed, essentially skeletal remains of a body. The body was that of Malcom Tyler. Henry Hayes, who found the body, said that it was one-half to three-quarters of a mile from the bar. State Police Detective Zeuner, who participated in the investigation, said that it was only about 500 yards from the bar; Tyler's home was slightly more than half a mile from the bar by way of the road but about 800 yards from the bar across a field.
The medical examiner was of the opinion that death was caused by an epidural hematoma resulting from a blow to the head. He stated that such a blow could have been caused by a fall. He could not determine, because of the condition of the body, how soon death followed the trauma to the head, but stated that it could have been instantaneous or the victim could have lived for up to several days, during which he could have been ambulatory for some time. The crime remained unsolved until the police received information, through a probation officer, that a juvenile, J.B., had confessed to mugging someone outside the Marina Bar.
In November 1973 J.B., then 16 years old, was committed to the Highfields Residential Group Center in Hopewell. Highfields is a state institution to which juveniles are committed
as a condition of probation upon adjudications of delinquency. N.J.S.A. 30:4-177.31. As part of the Highfields program residents are required to participate in what is called "guided group instruction." Residents are assigned to a group as they enter Highfields and thereafter meet regularly with them. Generally, each 90-minute session focuses exclusively on one "student's" problems.
Albert Axelrod, the Superintendent of Highfields, testified that the premise of the group sessions is that only by dealing honestly with themselves and their past anti-social behavior can the residents begin to be rehabilitated. It is part of the rehabilitation process, Axelrod stated, to draw things out which are locked in a resident's mind so that troubling or terrifying thoughts may be looked at and dealt with. Participants are therefore encouraged (in Axelrod's phrase) to "bare their souls." Although no formal regulations are issued, it is understood by all involved that "What you say in the group will stay in the group." It is also understood that failure to participate fully can result in being returned to court as unsuitable for the Highfields program, which in turn is understood to mean revocation of probation and confinement at Yardville.
The first session to focus on J.B. was that of December 18, 1974. It is traditional at Highfields that at his first meeting a resident gives his life history, including "all problems with the law * * *." During the early part of the evening, J.B. informed the group that he had just finished "doing time" at Stokes. ("Stokes" is the Stokes Forest unit of the Youth Correctional Institution at Annandale.) Axelrod stated that he knew -- based on J.B.'s records and history and Highfield's entrance requirements -- that this could not be so and confronted J.B. with his lie, telling him that he'd be hurting himself in the program if he lied. Later in the evening J.B. stated that he had been involved in a mugging and that at some subsequent date he learned that the victim might have died. Axelrod's best recollection of J.B.'s admissions is as follows:
He and his accomplice followed the individual, I believe, down a road. He struck this individual with a pipe, the individual fell, and his accomplice then struck the man rather forcefully in the head with his pipe at least once. Then I think he took the man's wallet and fled, and then he added that some time later, several months later, they heard that a body had been found in this area and that they felt that this was the individual that they had assaulted.
Axelrod testified that on previous occasions he had been privy to revelations of criminal activity during group meetings but that he had never taken any action concerning that information. Following the December 18 meeting, however, he called J.B.'s probation officer and related the incident. Shortly thereafter Axelrod was visited by two State Troopers who convinced him to question J.B. further about the killing, and particularly the identity of his accomplice. Axelrod complied with their request and at a group meeting held on January 3, 1974 directed questions at J.B. for the specific purpose of determining who his accomplice was. The name was revealed by J.B. and, following the meeting, Axelrod gave it to the State Police. Axelrod had not told J.B. prior to the January 3 meeting that he had made any mention of J.B.'s confession to the police; neither did he give J.B. the Miranda warnings nor make any attempt to contact J.B.'s parents with regard to his further questioning of J.B.
On February 14 two State Troopers, Detective Sergeant Hunter and Detective Graham, went to Highfields to interview J.B., arriving between 1 and 2 P.M. Although J.B. was apparently given Miranda warnings at the outset of the interview, no attempt was made to contact his parents at that time. At approximately 3 P.M., the troopers advised Axelrod that they wished to take J.B. to Trenton for a polygraph examination. Axelrod gave his permission.
Hunter testified that J.B. initially denied any involvement in the Tyler death after being told by Hunter that information "from the street" linked him to the incident. Hunter pushed the point that his information seemed reliable, but that J.B. could clear himself by a polygraph examination. J.B., who is classified by his I.Q. as "dull normal,"
agreed to the test. When Hunter contacted the polygraph unit, someone there raised the question of parental permission and Hunter responded that Axelrod could give such permission.
The polygraph test was administered by State Police Detective Vona, and lasted from about 3:15 P.M. until after 5:00. Prior to the test Detective Vona was told of J.B.'s admissions in the group meetings.
Following the examination Detectives Vona, Hunter and Graham met with J.B. to discuss the test. Vona told the other troopers in J.B.'s presence that the test showed that he had lied and that he "was guilty of the crime but would not admit it." J.B. denied that he had lied, but Vona pointed out specific lies revealed by the examination. Finally, confronted with the test result, J.B. agreed to give a statement and admitted to being involved in the Tyler killing. The formal statement was taken after J.B., Hunter and Graham had supper and returned to Highfields. Although J.B. was again read the Miranda warnings, his parents had still not been contacted and he was not told that he could call them. The statement was begun at 7:55 P.M. and completed at 9:25 P.M. Approximately half-way through the statement, when J.B. had not yet named his accomplice, Axelrod interrupted and took him into the hall. During their private conversation Axelrod, for the first time, informed J.B. that the confidentiality of the therapy group had been breached and that the information he related in the group had been delivered to the State Police. J.B. then continued his statement and named his accomplice. At no time were J.B.'s parents called, and at no time during the entire eight hours of custody was he advised that a parent or other relative could be with him during questioning.
The trial judge ruled that all of J.B.'s statements were inadmissible except that made at the first group meeting on December 18, 1974. Statements made at subsequent group meetings were properly excluded. Axelrod, having gone to the police and thereafter having questioned J.B. at
their request, had become an agent of the police and was therefore required prior to questioning J.B. to give him the Miranda warnings. This he failed to do. The results of the polygraph test were rejected because the juvenile had not consented to their introduction. State v. McDavitt , 62 N.J. 36, 46 (1972). And the formal statement was excluded as involuntary because it was obtained without the juvenile's parents having been present and informed of the questioning and given the Miranda warnings. State in Interest of S.H. , 61 N.J. 108 (1972); State in Interest of Carlo , 48 N.J. 224 (1966); State in Interest of B.D. , 110 N.J. Super. 585 (App. Div. 1969), aff'd o.b. 56 N.J. 325 (1970). Additionally, the judge ruled that the statement was obtained as a result of police exploitation of the polygraph test, which itself was unlawfully administered to the juvenile without proper consent of his parents. See e.g., Wong Sun v. United States , 371 U.S. 471, 487-488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).
The juvenile maintains on this appeal that the initial statement made on December 18 should also have been excluded. We agree.
The context in which that statement was elicited constituted custodial interrogation. Axelrod was employed by the State as a supervisor of a state institution directly involved in dealing with juvenile offenders. The questioning conducted by him was by virtue of his authority as an agent of the State. The group session at which the incriminating statement was given focused upon J.B. as the primary subject. While the session's concentration on J.B. was not literally an investigation of J.B. as a criminal suspect or an interrogation directed to any particular crime, it was nevertheless aimed at uncovering personal anti-social behavior and its thrust was the revelation of the individual's past history, including criminal acts. Moreover, the ...