On appeal From the Superior Court of New Jersey, Law Division, Essex County.
Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D.
[166 NJSuper Page 302] Defendant was indicted for the felony-murder of Graham Manning, the robbery from him of $61
and possession of a dangerous knife. A two-day trial before Judge Loftus in June 1976 resulted in a mistrial on the court's own motion. Thereafter defendant was tried before Judge Loftus and a jury in October 1976 and found guilty of first degree murder and sentenced to life imprisonment. Defendant's motion for new trial was denied. Defendant appeals, contending that (1) his inculpatory statement was improperly admitted into evidence; (2) he was entitled to a second Miranda hearing at the retrial; (3) his counsel's cross-examination of Detective Arnold was improperly restricted; and (4) the trial judge committed plain error in not charging the jury on second degree murder sua sponte.
The State contended that defendant killed Manning during the course of a robbery in the men's room of Jordan's Lounge in Newark on February 20, 1976. Defendant contended that his brother-in-law Ronda, who was in his company that evening, was the murderer.
At the Miranda hearing held before the aborted initial trial in June 1976 the State produced the testimony of Detectives Clark and Arnold and Officer Martinez to support its contention that the confession was voluntary and was taken after full Miranda warnings were given four times and bilingually. Defendant did not testify or offer any proof at the Miranda hearing. The trial judge found that defendant, who admitted an 11th grade education during the questioning, gave a fully voluntary inculpatory statement after the appropriate warnings were given and waived in writing. The trial judge's conclusions were fully supported by the evidence. The trial judge found that defendant was "well versed" in English but nonetheless was provided with the bilingual interpreter, Martinez, to assist his understanding of the written confession and insure its accuracy. She also found that "the Miranda warnings were properly given to Mr. Lopez, once at the scene, once at 11:30, once at 2:25 in English, and then finally, 4:15 in Spanish. I further find that he did knowingly, voluntarily, and intelligently waive his rights."
As to voluntariness the trial judge found:
There's nothing in the record in any way, that would, in any way indicate that any police brutality was employed here. There's nothing to indicate there was any undue pressure put on Mr. Lopez to give the statement. There's nothing to indicate that there was any physical violence employed against him. Nothing to indicate that there was any threats employed.
The judge noted that the "only slight fact" in the record was that defendant broke down and cried. This she found to be a normal nervous reaction to his admission of what had occurred.
Defendant now contends that it was reversible error for the trial judge not to afford him a second Miranda hearing at the retrial. This argument was first raised at the hearing on defendant's motion for new trial. Defendant never requested a Miranda hearing before or during the retrial. Indeed, at the new trial motion hearing Judge Loftus observed that defendant's trial counsel signed a pretrial order which stated:
6. Is voluntariness of defendant's statement in issue?
Yes -- Miranda hearing already heard -- law of the ...