On appeal from the Superior Court of New Jersey, Law Division, Union County.
Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D. Conford, P.J.A.D. (dissenting).
Defendant was found guilty by a jury of breaking and entering with intent to rob (N.J.S.A. 2A:94-1), robbery (N.J.S.A. 2A:141-1), conspiracy to commit robbery (N.J.S.A. 2A:98-1), and contributing to the delinquency of a minor (N.J.S.A. 2A:96-4). He was sentenced to an aggregate five to seven years State Prison sentence and now appeals raising multiple points of trial error.
Defendant's convictions arose out of a criminal episode occurring at the residence of an elderly Plainfield couple in December 1975. Defendant's convictions were premised on the State's contention that he aided, abetted and conspired with a juvenile G.K. in the commission of the crimes. G.K. had pleaded guilty to the offenses and was sentenced to a term of incarceration prior to defendant's trial.
The State offered proof from which the jury could have believed these general facts about the episode: On the evening of the criminal event the victims, Mr. and Mrs. Braun, were at home on Carnegie Avenue in Plainfield. At about 5:20 P.M. Mr. Braun looked out to see if his newspaper had been delivered. He noticed a dark-colored car travelling north on the poorly lighted street. Thirty seconds later he heard the storm door open and thought it was the paper boy. Braun then looked up and saw an arm thrust through the door holding a gun pointed at him.
Mrs. Braun was talking on the telephone when she heard her husband's shout to come to the living room. She responded immediately and saw the juvenile intruder G.K. holding a handgun to Mr. Braun's head. G.K. then ordered
the couple to a bedroom at gunpoint, and threatened to kill Mr. Braun if they did not give him some money. The Brauns were able to produce about $50 for the robber. The Brauns were told to lie down in the bedroom and G.K. left the room. Several minutes passed and then the Brauns heard a noise. They rushed to the front door where they met several police officers who told them to wait outside.
At about 5:20 P.M. the Plainfield police had by radio transmission directed all available units to proceed to the Brauns' home on Carnegie Avenue to investigate a breaking and entering in progress. Detectives Irovando and Newman were driving home from work in a private car; they picked up the transmission and arrived on the scene first. Other officers arrived seconds later. Irovando and Newman observed defendant's 1970 four-door maroon Ford parked on Carnegie Avenue about one house north of the Brauns' house.
The detectives parked, left their car, walked around to the driver's side of the defendant's car, and saw the defendant "slumped down" behind the wheel. The motor was running and car lights were off. Defendant was alone in his car. Officer Ronsley arrived a few seconds after the detectives. Ronsley was ordered by the detectives to "secure" the Ford and its occupant. Ronsley said he understood that it was his duty to keep defendant and his car at the scene pending developments.
As Ronsley approached defendant's car he observed defendant "slouched down" behind the steering wheel. Ronsley told defendant to keep his hands on top of the steering wheel. Defendant then volunteered this statement to Ronsley: "I ain't done nothing. I'm just on my way home to rest." Ronsley requested and defendant produced a valid license and registration. During the conversation defendant said he now lived in Montclair and used to live in Plainfield. Ronsley then asked defendant to get out of his car. Defendant said he had two artificial legs and could not comply. Both of his legs had been amputated as a result of phlebitis. Ronsley thereafter noticed a pair of crutches and a black hat in the
backseat. Defendant was wearing a fishing hat and Ronsley thought it unusual that there was another hat in the car. Ronsley asked if the hat was his and the defendant replied that it was.
Meanwhile Detectives Irovando, Newman, Dilkes and Ham had surrounded the house, the Brauns had run out the front door, and the police had entered the house and had fanned out to search for G.K. Detectives Dilkes and Newman found G.K. in a closet in the dining room, arrested and handcuffed him. They searched G.K. and discovered $60 in a pocket and an unloaded .22-caliber revolver tucked in his pants.
After being told of G.K.'s arrest inside the house Officer Ronsley asked defendant to try on the black hat and he complied. Ronsley observed that the hat was obviously too small for defendant. This demonstration was repeated at trial before the jury. At the request of the police and in the company of an Officer Treadwell, defendant drove his own car to the police station. The car was equipped with manual controls enabling defendant to drive despite the loss of his legs. At the police station Detective Dilkes told defendant he was being charged with armed robbery and read his Miranda warnings to him. A search of defendant's person produced two .32-caliber bullets, incompatible with the .22-caliber weapon found on G.K.
Following defendant's arrest at the station house Detective Dilkes told him that G.K. had been arrested and had given a statement implicating defendant in the robbery. Defendant denied any knowledge of the armed robbery. He shook his head negatively and stated to Dilkes that he "should have ought to let the kid steal that lady's pocket." Dilkes said he thought the defendant "cut himself short and that he would have said something else, but didn't." The interrogation then ceased.
In addition the State produced evidence that defendant's car was processed for latent fingerprints which revealed a
print matching G.K.'s left index finger on the inside of a window. Defendant did not testify or offer any proofs.
The key evidence linking defendant to G.K. as an aider and abettor was (1) the fingerprint in his car, (2) the black hat which was too small for defendant but which inferentially could have fit the juvenile, G.K., and (3) defendant's statements at the scene and in the station house. Defendant raises numerous points of error in his appeal from the judgment of conviction and the sentence.
We first consider defendant's contention that the trial judge committed reversible error when he admitted into evidence the statements he made while in his automobile on the scene before he was escorted to the station house, arrested, searched and given his Miranda warnings. It was during this verbal exchange that defendant told Officer Ronsley, "I ain't done nothing. I'm just on my way home to rest," and claimed ownership of the undersized black hat, which he later donned at Ronsley's request. When ruling that these statements were not the product of a custodial interrogation the trial court stated: "The question is all the circumstances. And I find for all intents and purposes he was not in custody within the meaning of Miranda at the time he made these statements."
The United States Supreme Court in Miranda v. Arizona , 384 U.S. 436, 377-378, 86 S. Ct. 1062, 16 L. Ed. 2d 694 (1966), observed that warnings need not be given during "general on-the-scene questioning as to the facts surrounding a crime or other general questioning of citizens in the fact-finding process." Nor does the holding in Miranda bar the admission of any statement secured under noncustodial circumstances "given freely and voluntarily without any compelling influences." ...