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State v. Miller

Decided: May 24, 1978.


On certification to the Superior Court, Appellate Division.

For reversal and reinstatement of conviction -- Justices Sullivan, Clifford, Schreiber and Handler. For affirmance -- Justice Pashman and Judges Conford and Halpern. The opinion of the court was delivery by Sullivan, J. Conford, P.J.A.D. (temporarily assigned), dissenting. Halpern, P.J.A.D. (temporarily assigned), dissenting. Pashman, J., dissenting and concurring in part.


Defendant was indicted for the murder of Deborah S. Margolin, a 17-year old girl, was tried by jury and found guilty of murder in the first degree. He was sentenced to life imprisonment in State Prison. The principal evidence against him was his oral statement, recorded on tape, made while he was being questioned at police barracks, in which he admitted killing the girl. On appeal, the Appellate Division, in an unreported opinion, reversed the conviction on the ground that defendant's confession was involuntary in the constitutional sense. This Court granted certification of the State's petition. 70 N.J. 141 (1976).

The essential facts are as follows. On the morning of August 13, 1973, Deborah Margolin, 17 years of age, was sunbathing on the patio of her parents' farmhouse in East Amwell Township, Hunterdon County. She was wearing a two-piece bathing suit at the time. While she was there a white car drove up to the house and the driver sounded the car's horn several times. The girl's brothers, Daniel and Bernard, from upstairs windows in the house, observed a dusty white vehicle with two severe dents in its right side and its trunk tied shut. The male driver wore loose fitting clothes and "looked like a factory worker." Daniel heard the man tell Deborah that a heifer was loose down at the bottom of the driveway. The girl told her brother that she didn't need any help, got into a family car and drove down the driveway. She was never seen alive again.

Later that afternoon when the girl failed to return home, a search of the area was made and Deborah's body was found face down in a stream. Her throat had been slashed, severing her windpipe and jugular vein. The girl was nude except for a part of her bathing suit around her waist. Stab and cutting wounds had been inflicted in her pelvic area and vagina. Her right breast had been cut.

The description of the car in the driveway given to the police directed immediate attention to defendant who was then on parole from a 1969 conviction of carnal abuse and who had been arrested on July 10, 1973 on another morals charge. The arresting officer in that case, who was also participating in the investigation of the Deborah Margolin homicide, noted that the description of the car seen in the Margolin driveway was similar to the one owned by defendant. Miller's appearance also conformed with the description of the driver of that car given by one of the brothers.

Two police officers located defendant at approximately 10:50 p.m. that same day and interviewed him at a plastics factory in Flemington where he was employed. After some conversation during which defendant gave the officers permission to examine his car which was parked there, defendant agreed to accompany the officers to the Flemington police barracks for further questioning. They arrived at the barracks at about 11:49 p.m. The questioning began about two hours later and lasted for about 58 minutes. The interview was tape recorded.

Defendant initially was read his Miranda rights and expressed his willingness to talk without an attorney being present. However, he asked for and was given reassurance of his right to stop at any time and remain silent. Defendant then signed and dated a Miranda rights card. In the beginning defendant denied any involvement in the episode at the Margolin farmhouse and the girl's subsequent death. However, he was confronted with time discrepancies in his story as to his whereabouts at the time. The officer pointed out that the description of the vehicle seen in the Margolin driveway

matched defendant's car to a "T" and that the inspection of defendant's car in the parking lot of the plastics factory disclosed fresh blood in the front seat. The officer said that the description of the driver of the car fitted defendant and the clothes he was wearing. Despite this, defendant continued to insist that he never talked to the girl and that he was not going to admit to something that he "wasn't involved in."

The conversation then got around to the subject of the mental condition of the person who had committed the crime. Defendant said that "whoever did it really needs help." The officer suggested that such a person was not really a criminal who should be punished, but rather needed medical treatment. The officer said he would do all he could to help defendant but that defendant had to help himself first by talking about it.

Finally, the defendant admitted that he was the person who drove up the Margolin driveway and spoke to the girl about the cow. He said that he had driven back to where he had seen the cow, with the girl following him in her car. They started walking through the fields when, according to defendant, he heard the girl scream, he turned and saw a man with a knife cutting the girl. Defendant said he tried to help the girl but the man cut him with the knife and ran away. Defendant put the girl in his car but panicked because he thought she was dead and when he got to a bridge over a stream he "dropped her off" the bridge into the stream.

The officer said that defendant was not being completely honest with him stating "you killed this girl didn't you?" When defendant answered "No I didn't" the officer repeated, "You've got to tell me the truth. I can't help you without the truth." Defendant's reply was

I'm telling you the truth. Sure, that's her blood in the car because when I seen the way she was cut I wanted to help her, and then when she fell over I got scared to even be involved in something like this, being on parole . . .

The officer persisted that truth was the issue, and truth would prevail in the end. He urged defendant "to be truthful with yourself." Defendant began to waver in his denial, saying, "This is going to kill my father." Seizing on the reference to his father, the officer said

[i]f the truth is out, he will understand. That's the most important thing, not, not what has happened, Frank. The fact that you were truthful, you came forward and you said, look I have a problem. I didn't mean to do what I did. I have a problem. This is what's important, Frank.

Defendant then confessed. He said that when they were unable to find the cow, the girl got into his car to go down the road to see if the cow was there. They drove down by the bridge where defendant took a penknife from his pocket and started cutting the girl. Defendant said he had no real recollection of just what he did to the girl or why, although he remembered throwing her body off the bridge. After the incident defendant said he drove home and, using a hose, washed the blood from the seat of the car. In answer to the officer's inquiry, defendant indicated he would be willing to give a formal statement.

Shortly after the questioning was terminated, defendant appeared to go into a state of shock. He slid off the chair onto the floor and had a blank stare on his face. When he did not respond to questions, he was taken to the Hunterdon Medical Center.

The tape recording was the principal evidence against defendant at his trial. It was admitted into evidence over defendant's objection and following a voir dire hearing at which defendant testified that he remembered going to the barracks for questioning but had no recollection of his interrogation, as recorded on the tape. According to defendant, the first thing he remembered after being in the barracks' coffee room was when he came to in the medical center.

The trial judge attached no particular significance to defendant's lack of present recollection of the taped interview.

He found the questioning not to have been improper or coercive and that defendant's statement was voluntary and admissible. At the conclusion of the State's case, defendant elected not to take the stand and testify in his own defense.

During the trial an incident took place which defendant claimed also prejudiced his right to a fair trial. Because of the nature of the crime, 16 persons were chosen to hear the case pursuant to R. 1:8-2(d). The rule is intended to insure a sufficient number of jurors to render a verdict should a juror die or become ill, disabled or otherwise disqualified from continuing to sit. The rule is particularly useful in a protracted trial where the loss of a juror would otherwise require a mistrial. The rule then provided as follows:*fn1

(d) Alternate Jurors; Civil and Criminal Actions. The court in its discretion may direct the impanelling of a jury of such number as is appropriate under the circumstances not to exceed 16, having the same qualifications and impanelled and sworn in the same manner as a jury of 12. If a juror is excused after he has been sworn but before any opening statement is begun, another juror may be impanelled and sworn to take his place. All the jurors shall sit and hear the case, but the court for good cause shown may excuse any of them from service provided the number of jurors is not reduced to less than 12 or 6 as the case may be or such other number as may be stipulated to. If more than such number are left on the jury at the conclusion of the court's charge, the clerk of the court in its presence shall put their names on slips folded to conceal the names, shall place the slips in a suitable box and from it shall draw such number of names as will reduce the jury to the number required to determine the issues. Following the drawing of the names of jurors to determine the issues, the court may in its discretion order that the alternate jurors not be discharged, in which event the alternate jurors shall be sequestered apart from the other jurors and shall be subject to the same orders and instructions of the court, with respect to sequestration and other matters, as the other jurors. If the alternate jurors are not discharged and if at any time after submission of the case to the jury, a juror dies or a juror is discharged by the court because he is ill or otherwise unable to continue, the court may direct the clerk to draw the name of an alternate

juror to take the place of the juror who is deceased or discharged. When such a substitution of an alternate juror is made, the court shall give the jury such supplemental instructions as may be appropriate.

In the instant case, at the conclusion of the trial, the names of 12 of the 16 jurors were drawn to constitute the jury.*fn2 However, the court did not discharge the remaining four jurors. Pursuant to the rule, it directed that they be sequestered apart from the other jurors to be available if needed to replace one of the 12 jurors chosen.

After the jury had been deliberating for about an hour and a quarter, it sent a note asking the court "to clarify the definition between first and second degree murder." The jury was recalled and recharged on the distinction between the two degrees of murder, the court to a large extent repeating verbatim the language of its original charge.

Just after the court finished its supplemental instructions and asked the jury to retire to continue its deliberations, and before the jury left the jury box, juror number 11 asked to be dismissed from the jury as he was too nervous and that it was affecting his judgment. In answer to an inquiry by the court the juror said that he did not think he could render a fair verdict.

At the sidebar conference, the prosecutor suggested that the juror be excused and one of the alternate jurors be chosen to take his place. Counsel for defendant stated that he could "hardly object to the withdrawal of a juror who says he can't reach a fair and impartial verdict." However, he opposed substituting a juror after the jury had retired to deliberate. He said that the only remedy was to declare a mistrial.

The court discharged juror number 11 from the panel and had the clerk, by lot, draw the name of one of the alternate

jurors to take the place of the discharged juror. The court then told the jury that it would have to "start over" in its deliberations. About 50 minutes later the jury reported that it had agreed on a verdict. In open court it then returned a verdict finding defendant guilty of murder in the first degree.

The Appellate Division reversed the conviction on the grounds that defendant's confession was the result of intense and mind-bending psychological compulsion and should have been excluded from evidence as involuntary in the constitutional sense. The Appellate Division expressed its "conviction of defendant's guilt" and its "abhorrence at the crime he committed." Nevertheless, it held that the guilty as well as the innocent were entitled to due process and that the use of defendant's confession at his trial required a reversal and a new trial.

We have no quarrel with the legal principles expressed by the Appellate Division. We disagree, though, with its evaluation of the techniques and tactics used by the officer who questioned defendant, as well as its conclusion that defendant's confession was involuntary in the constitutional sense.

Every case must turn on its particular facts. In determining the issue of voluntariness, and whether a suspect's will has been overborne, a court should assess the totality of all the surrounding circumstances. It should consider the characteristics of the suspect and the details of the interrogation. Some of the relevant factors include the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973). A suspect's previous encounters with the law has been mentioned as an additional relevant factor. State v. Puchalski, 45 N.J. 97, 101 (1965).

Here defendant was a mature man 32 years of age, with some high school education, who had previous experiences with the law. In its finding of voluntariness the trial court emphasized that defendant was "quite familiar" with his Miranda rights. There was no indication of low grade or subnormal intelligence on defendant's part. He was oriented, alert and responsive.

The tape recording shows that defendant was advised of his Miranda rights and had expressed his willingness to talk to the officer without having an attorney present but first sought and obtained reassurance that he could stop at any time and remain silent. The officer then proceeded to prod defendant about time discrepancies in his story as to his whereabouts at the time the girl left her house. He was reminded of evidence that linked him and his car to the incident. As the trial court noted, an interrogating police officer is not limited to asking a suspect if he committed the crime and if he receives a negative answer, that must be the end of the questioning.

There is a natural reluctance on the part of a suspect to admit to the commission of a crime and furnish details. See State v. Smith, 32 N.J. 501, 550 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961). Efforts by an interrogating officer to dissipate this reluctance and persuade the person to talk are proper as long as the will of the suspect is not overborne. As we said in Smith, supra, 32 N.J. at 550,

An interrogation, no matter how conscientiously conducted, is naturally bound to be a tense occasion and to evoke apprehension, nervousness and a sense of pressure, no matter what the situation, which will be heightened in a person who knows he is guilty by consciousness of guilt and fear of the legal penalty. It must be recognized that it is not this kind of normal stress, fear and pressure which can make the questioning unfair and a confession involuntary.

The inquiry is whether an interrogating officer can appeal to a suspect by telling him that he is the suspect's friend and wants to help him -- that whoever killed this girl is not

a criminal who should be punished, but a person who needs medical treatment. Does the officer have the right to tell the suspect that he must help himself first by telling the truth and then the officer will do what he can to help the suspect with his problem?

It must be conceded that this technique moves into a shadowy area and if carried to excess in time and persistence, can cross that intangible line and become improper. Here, though, the questioning lasted for just less than an hour. While there is an indication that defendant was becoming distressed near the end, this would be a normal reaction as the enormity of what defendant had done was being brought home to him. Defendant had expressed the fear that "this is going to kill my father." Defendant's collapse shortly after completion of his interrogation was the culmination of this realization.

It is evident from the record in this case that the officer's remarks had no appreciable impact on defendant and certainly did not contribute to an "overbearing of his will." Defendant, as previously noted, had been arrested on previous occasions and had a prior conviction for which he had been imprisoned. He was in no way deluded or misled into believing that the state trooper was acting in any capacity other than as an interrogating police officer in the investigation of a serious crime. Miller was fully aware that a murder had been committed which was the subject of the investigation and that he was a prime suspect in the killing. He well knew that should the investigation prove successful and were he to confess he would be charged with the commission of the crime. He was certainly cognizant of the fact that he would be handled through the criminal judicial system and, if found guilty, he would be punished accordingly. There is no basis for concluding that Miller did not have this complete understanding of his situation throughout his interrogation and confession.

Before it can be admitted into evidence and submitted to a jury, a defendant's confession must be proven

by the State to be voluntary beyond a reasonable doubt. State v. Kelly, 61 N.J. 283, 294 (1972). A confession which is the product of physical or psychological coercion must be considered to be involuntary and inadmissible in evidence regardless of its truth or falsity. However, we disagree with the Appellate Division's suggestion that the use of a psychologically-oriented technique in questioning a suspect is inherently coercive. Questioning of a suspect almost necessarily involves the use of psychological factors. Appealing to a person's sense of decency and urging him to tell the truth for his own sake are applications of psychological principles. Use of a psychiatrically-oriented technique is not improper merely because it causes a suspect to change his mind and confess. The real issue is whether the change of mind was voluntary and not an overbearing of the suspect's will.

We find that the interrogation in this case did not exceed proper bounds and that the voluntariness of defendant's confession could properly have been determined by the trial court to be established beyond a reasonable doubt. It was, therefore, properly admitted into evidence. In this connection, we reject defendant's related contentions that his confession was the product of strongly implied promises of an insanity defense and no prison sentence if defendant confessed as having no substantial basis in the record. The same for the contention that the confession was the product of trickery and lies by the police.

We next consider defendant's argument that R. 1:8-2(d) is unconstitutional insofar as it permits an alternate juror to be substituted for an original juror after jury deliberations have begun. The contention is that substitution of a juror at this stage of the proceeding infringes on a defendant's right to trial by jury. We considered this question in 1972 when the particular amendment to the rule was proposed. Our adoption of the amendment, effective September 5, 1972, was based on the conclusion that no constitutional obstacle was presented.

Nevertheless, the matter is not completely free from question. In People v. Ryan, 19 N.Y. 2d 100, 278 N.Y.S. 2d 199, 224 N.E. 2d 710 (Ct. App. 1966) the New York Court of Appeals struck down a similar provision in the New York Code of Criminal Procedure as violative of the right of trial by jury provided by the New York Constitution. The court held that substituting a juror after deliberations had begun was in effect bringing a 13th juror into the deliberations and that it offended the constitutional provision.

At the opposite pole is People v. Collins, 17 Cal. 3d 687, 131 Cal. Rptr. 782, 552 P. 2d 742 (Sup. Ct. 1976), cert. denied, 429 U.S. 1077, 97 S. Ct. 820, 50 L. Ed. 2d 796 (1977), where the Supreme Court of California upheld a provision of the Penal Code which provided for substitution of an alternate for an original juror after jury deliberations had begun. The court found this to be constitutionally permissible and not in violation of the right of trial by jury, provided good cause was shown, and the jury was instructed to begin deliberations anew.

The Federal Rule of Criminal Procedure, Rule 24(c), while providing for alternate jurors, permits substitution for regular jurors only prior to the time the jury retires to consider its verdict. However, it has been suggested that this rule be amended "to cover the situation where a juror becomes incapacitated during deliberations or is excused for some other reason." 8A Moore's Federal Practice, para. 24.05, page 24-36. The Advisory Committee on Rules of Practice and Procedure of the Judicial Conferences of the United States has proposed a change in Rule 24(c) so as to permit alternate juror substitution after jury deliberation has begun.

We find that Rule 1:8-2(d) in providing that for good cause shown, an alternate juror may be substituted for a regular juror after deliberations have begun, does not offend our constitutional guaranty of trial by jury. Certainly good cause appeared when the juror in question

stated that in his then nervous and emotional condition, he did not think he could render a fair verdict. Of course, when an alternate juror is so substituted, the jury must be instructed in clear and unequivocal terms that it is to begin its deliberations anew and that, as the trial judge stated herein, "you are in effect going to have to start over."

The rule is discretionary with the trial court because a situation might arise where it would be unwise to utilize this procedure. The longer the period of time the jury deliberates, the greater is the possibility of prejudice should a juror be substituted or replaced. However, in the circumstances presented herein we find that utilization of the rule provision was not improper. See State v. Trent, 157 N.J. Super. 231 (App. Div. 1978).

No rule is immutable. The court is always receptive to improvements in our procedures. See In re National Broadcasting Corporation, 64 N.J. 476 (1974). If it appears that an existing rule, although constitutional, creates trial problems, attention should be given to its continued usefulness. Our Civil and Criminal Practice Committees might well reassess the present utility of this amendment in the light of our five and one-half years experience with it.

A further contention made by defendant is that even though the 1972 rule amendment be held to be constitutional, the trial court committed error, after it replaced juror number 11 with an alternate juror, in not having its supplemental charge read to the substitute juror. It seems to be undisputed that when the supplemental charge was given to the jury as to the distinction "between first and second degree murder," the alternate jurors were not present in the courtroom and did not hear the supplemental charge.

The alternate jurors should have been brought into the courtroom to hear such charge. Rule 1:8-2(d) provides that if alternate jurors are not discharged following

selection of the jury, they are to be sequestered apart from the other jurors but are subject "to the same orders and instructions of the court, * * * as the other jurors."

However, we conclude that defendant was not prejudiced by the failure to comply with the rule. The original charge to the entire jury panel including the alternate jurors was an adequate and correct instruction as to the difference between the two degrees of murder. The supplemental charge, to a great extent, repeated, almost verbatim, the original instructions. The entire jury was told that if it needed clarification of any part of the court's charge, it should submit a written request to the court. After the alternate juror was seated no request for clarification was made so that it must be assumed that this juror did not need further instructions. In the circumstances, we find no reversible error.

We have considered defendant's additional contention that there should have been a charge on manslaughter. The point is frivolous. There is nothing in the record to support the submission of such an issue to the jury. See State v. Artis, 57 N.J. 24, 30 (1970).

The judgment of the Appellate Division is reversed and the judgment of conviction, including the sentence imposed, is hereby reinstated.

CONFORD, P.J.A.D. (temporarily assigned), dissenting. I am constrained to dissent from the Court's reversal of the Appellate Division judgment in this case. My grounds are two: (1) the unanimous determination of the Appellate Division that the confession obtained from defendant was extracted from him by means that denied him due process was sound; and (2) the circumstances attending the substitution of a juror during the deliberations of the jury denied the defendant his right to an untainted jury trial. For either or both of these reasons the verdict of guilt should be set aside and the defendant granted a new trial.


I address the confession issue first. It goes without saying that it is not easy for a judge to render an adjudication that results in the vacation of the conviction of an apparently guilty person -- especially where the crime is as reprehensible as this one. It is evident from the Appellate Division opinion that that court felt the pressure of the same considerations. But no principle of legal jurisprudence is better settled in this country or more self-evident than that the price of faithful enforcement by the judiciary of the constitutional rights of individuals embedded in the Bill of Rights may on occasion be the setting free or the enforced retrial of a malefactor. Only a year ago Justice Stewart, in a case comparable to the instant one in its tension between the demands of law enforcement and those of vindication of individual constitutional rights, felt moved to say, in expressing the reasons of the Supreme Court for vacating a conviction:

The pressures on state executive and judicial officers charged with the administration of the criminal law are great, especially when the crime is murder and the victim a small child. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all.

Brewer v. Williams, 430 U.S. 387, 406, 97 S. Ct. 1232, 1243, 51 L. Ed. 2d 423 (1977).

Previously, in a confession case, Chief Justice Warren had said:

The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.

Spano v. New York, 360 U.S. 315, 320-321, 79 S. Ct. 1202, 1206, 3 L. Ed. 2d 1265 (1959). See also Mapp v. Ohio, 367 U.S. 643, 659, 81 S. Ct. 1684, 6 L. Ed. 2d 1081

(1961); Olmstead v. United States, 277 U.S. 438, 485, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Justice Brandeis, dissenting).

This Court has been equally faithful to these high principles. In State v. Macri, 39 N.J. 250, 266 (1963), Justice Jacobs stated:

State judges, no less than federal judges, have the high responsibility of protecting constitutional rights. While they, no less than law enforcement officers, are disturbed when the guilty occasionally go unpunished, they tolerate that as the incidental cost of insuring the continued effectiveness of the guaranties afforded by the Constitution to all of us as free men.

All members of this Court, each conscientiously voting his own views on the merits of this troublesome issue, are bound at least to realize that an affirmance of the conviction in this case signals to the law-enforcement community that the method of interrogation of this defendant resulting in the confession before us is unexceptionable and may be freely practiced. I cannot join in such a signal.

All members of the Court agree that an involuntary confession -- one extracted from a suspect by physical or psychological coercion on the part of the police -- cannot be used in a trial of the suspect, as a matter of his right not to be deprived of his liberty without due process. Brown v. Mississippi, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682 (1936); McCormick on Evidence (1972) ยง 149, p. 317. Although the cases recognize that no single test of involuntariness can be formulated, the essence of the controlling rationale is found in the statement in Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 1879, 6 L. Ed. 2d 1037 (1961):

The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if

his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. * * * The line of distinction is that at which governing self-direction is lost, and compulsion, of whatever nature or however infused, propels or helps to propel the confession.

Another view of the matter, drawing from earlier cases, was reformulated in Malloy v. Hogan, 378 U.S. 1, 7, 84 S. Ct. 1489, 1493, 12 L. Ed. 2d 653 (1964), where the Court said:

In Miranda v. Arizona, 384 U.S. 436, 448, 86 S. Ct. 1602, 1614, 16 L. Ed. 2d 694 (1966), the Court noted:

No two cases are alike; all must be decided on the totality of the circumstances. But ultimately "neither the body nor mind of an accused may be twisted until he breaks." Culombe v. Connecticut, supra, 367 U.S. at 584, 81 S. Ct. at 869.

Of importance to a resolution of this appeal is an understanding of the burden of proof of the State to establish the voluntariness of an impugned confession and of the scope of review by an appellate court on such an issue. This Court has plainly established the burden of proof on the State as that of proving voluntariness of a confession beyond a reasonable doubt. State v. Yough, 49 N.J. 587, 601 (1967); State v. Kelly, 61 N.J. 283, 294 (1972). As to scope of appellate review, since the issue is of constitutional dimension

and is one of mixed fact-law, the reviewing court conducts a sweeping surveillance of the question practically the equivalent of de novo redetermination.*fn1 Beckwith v. United States, 425 U.S. 341, 348, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976); Spano v. New York, supra, 360 U.S. at 316, 79 S. Ct. 1202 (1959); State v. Contursi, 44 N.J. 422, 428, n. 2 (1965); State v. Smith, 32 N.J. 501, 544, 549 (1960), cert. den. 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961), and see State v. Johnson, 42 N.J. 146, 160, n. 2 (1964).

In view of the foregoing, and the circumstances that all subordinate facts relating to the voluntariness of this confession were essentially uncontested (the court had available the verbatim transcript of a taping of the entire interrogation at the police station), the Appellate Division had the ultimate responsibility of determining independently for itself whether the State had carried its burden of establishing beyond a reasonable doubt that the confession was voluntary, i.e., that "neither the body nor mind" of Miller was "twisted until he [broke]." Culombe v. Connecticut, supra, 367 U.S. at 584, 81 S. Ct. at 1860. That the Appellate Division cannot fairly be said to have erred in finding that the State did not meet its burden is best demonstrated by setting forth its opinion substantially in its entirety, as follows:


"Defendant was convicted by a jury of murder in the first degree. He appeals on a number of grounds. The principal one of these is a challenge to the voluntariness of a confession.

"We are extraordinarily fortunate in having before us the transcript of a tape recording made during the interrogation which led to the confession. This obviates any

need to speculate with respect to that which transpired. Operating, then, from this unique vantage point, we first declare our allegiance to the 'decent' hope that a guilty man may stub his toe. State v. McKnight, 52 N.J. 35, 52 (1968). Then we deplore the techniques and tactics which extracted this ...

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