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State v. Burden

Decided: December 29, 1977.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MAURICE BURDEN, DEFENDANT-APPELLANT



Conford, Michels and Pressler.

Per Curiam

Defendant, a college student, was convicted of robbing a small loan office. He appeals, raising questions (a) as to pretrial identifications of him by two witnesses of the robbery and the effect thereof upon identifications of him in court by those witnesses and (b) concerning an alleged confession he made to the police.

The testimony adduced by the State establishes these facts. A man later identified as defendant entered the loan office, showed a cashier, a Miss Lugerner, a brown paper bag, and ordered her to put money into it. She did so. The man asked about the contents of another cash drawer, and Lugerner said the woman responsible for it was out to lunch. A coworker, Murdock, approached at that point, and Lugerner asked him to find the other woman. The robber left, whereupon Lugerner alerted other personnel to the robbery.

Lugerner was in close proximity to the robber for about five minutes, Murdock for less than a minute. Murdock did not know a robbery was in progress until the culprit left.

Testimony taken at a Wade voir dire revealed the following.

Lugerner and Murdock were brought to police headquarters an hour after the robbery and together looked at a large number of slides and photos of black males (defendant is black). Lugerner selected one photo which she said resembled the robber. She was not positive unless she could view the man. Three days later she was requested to go to headquarters to view a line-up. She walked into the detective bureau and, as she looked to the rear of the room, saw defendant sitting with a girl. She at once recognized him and began to shake. She left the office after indicating to a detective she had recognized defendant.

Murdock was requested by the police to attend an arraignment of defendant at the Paterson Municipal Court. After viewing a few other individuals being arraigned, he indicated to the police that defendant looked like the robber.

At the conclusion of Murdock's testimony defendant objected to his identification on the ground defendant was entitled to be represented by counsel at such an identification, adversary proceedings by the State having begun against him. Kirby v. Illinois , 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972). The objection was overruled. The court also found there was no undue suggestiveness in the manner in which defendant was identified by Murdock at the municipal court arraignment. Defendant did not at trial object to the identifications of defendant by Lugerner.

With reference to defendant's confession, the proofs offered by the State were these. Defendant came to police headquarters as the result of a call from the police. Detective Henion advised him he was a suspect in this robbery and read his Miranda rights to him from a card. Defendant indicated he understood. Defendant was then told to wait and was not interrogated. Shortly thereafter Henion was informed that Lugerner had identified defendant in the room. Thereafter Henion advised defendant of that fact, whereupon defendant replied, "I know she did identify, because I seen how

she started shaking; I just as well tell you the truth. I did rob her." Defendant then agreed to give a full signed statement, and did so after being again given his Miranda warnings and signing a waiver thereof.

Defendant testified he was "not guilty" of the crime, but could not deny he had been at the loan office on the day in question. He said he regularly visited that office to make payments on a loan. He admitted going to headquarters and signing a statement, but said he had not read it and didn't know what was in it. He signed it merely because the detective asked him to. He did not remember being ...


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