On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Seidman, Michels and Devine. The opinion of the court was delivered by Michels, J.A.D.
[174 NJSuper Page 16] Defendant David O. Fussell was convicted by the trial judge sitting without a jury of entering with intent to steal (N.J.S.A. 2A:94-1), armed robbery (N.J.S.A. 2A:141-1 and N.J.S.A.
2A:151-5), atrocious assault and battery (N.J.S.A. 2A:90-1) and assault with an offensive weapon (N.J.S.A. 2A:90-3), and was sentenced to consecutive and concurrent State Prison terms aggregating 18 to 25 years. Defendant appeals.
The critical issue raised is whether defendant's confession was properly admitted into evidence. We conclude that since the State did not meet its burden of establishing that defendant waived his right to counsel prior to his taped confession, the introduction of that confession violated the rights afforded defendant under Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
A review of the facts is helpful to an understanding of our decision. In the early morning hours of March 12, 1976 two Camden police officers, in response to a call, entered a home on the 1200 block of Kenwood Avenue in Camden, New Jersey. They found an elderly woman lying on a bed, bleeding from the head and moaning. Her skull had been fractured and she had been stabbed in the leg. She was unable to speak or identify her assailant. Shortly thereafter, an ambulance arrived and the injured woman was taken to a hospital. Defendant, who resided in the neighborhood, was at the scene and asked the police officers if he could assist or help in any way, but was told that it was not necessary. Defendant then went to the hospital and inquired as to the woman's condition. The police officers observed defendant and became suspicious when they noticed a red substance on his pants. Defendant claimed that it was motor oil. While at the hospital defendant was also observed paying for coffee with crisp silver certificate dollar bills. Earlier, similar silver certificates had been observed by the police in the woman's bedroom.
Later that morning defendant accompanied the police officers to police headquarters. While the record is not entirely clear as to why defendant accompanied the officers, he was not under arrest at the time, and ostensibly he went there to aid in the investigation of the crime. At police headquarters defendant
met Detective Clark who noticed that defendant had what appeared to be blood stains on his pants. Defendant stated that the blood was from helping the woman into the ambulance. After Detective Clark was informed that the defendant did not help carry the woman into the ambulance, he advised defendant of his Miranda rights. Defendant then was asked to empty his pockets and he did so, revealing two silver certificate dollar bills and three sets of key chains. Defendant put these articles back in his pocket and went to the bathroom. Upon returning, defendant was again asked to empty his pockets and this time had only two sets of keys. The other set was found later underneath the toilet. A subsequent search of defendant's automobile revealed a pair of white gloves with blood stains under the front seat. These gloves were shown to defendant, who responded that "You're getting me tied up, aren't you." Thereafter the police officers search defendant's home.
While the search was being conducted, defendant, who remained at police headquarters, approached Lieutenant Michalak and asked to speak to him in private about the incident. Defendant and Michalak went to the latter's office, where Michalak against informed defendant of his Miranda rights. Thereupon defendant confessed to the crimes. Michalak asked defendant if he would make a formal statement and defendant agreed. According to the State's proofs, when Detective Clark returned to police headquarters he informed defendant that his attorney (whom Clark had met at defendant's home during the search) was on his way to police headquarters. Even though defendant's attorney had not arrived at police headquarters, defendant agreed to give Clark a statement, and Clark commenced the interrogation. The following is an excerpt of the pertinent questions and answers:
Q. David, before going any further I like to read your statement of rights to you, before we ask you any questions it is my duty to advise you of your rights. Do you understand that?
Q. You have the right to remain silent, do ...