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State v. Powell

Decided: October 10, 1980.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GEORGE LEE POWELL, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Union County.

Fritz, Polow and Joelson. The opinion of the court was delivered by Polow, J.A.D.

Polow

Two multiple-count indictments, each charging breaking and entering with intent to rape, forcible rape, robbery and threat to take a life, were consolidated for trial. The two offenses indicated a similar criminal pattern and both were committed in the City of Plainfield, one on March 15, 1977 and the other on September 13, 1977. The crimes were otherwise unrelated.

Defendant was found guilty by a jury on all nine counts of the two indictments. Sentences aggregating 53 to 79 years in State Prison were imposed. (Defendant had previously been convicted of similar offenses after two earlier trials. Hence, the aggregate sentence includes the consecutive portion imposed upon the convictions involved in this appeal.)

The guilty verdicts in the consolidated indictments before us were based primarily upon defendant's written confessions which were admitted in evidence. The sole contention on this appeal is that the trial judge erred in refusing to conduct Miranda*fn1 hearings to determine admissibility of the two written statements allegedly given by defendant. We agree with this contention and remand to the trial court for Miranda hearings.

Defendant was arrested on October 15, 1977 when, during an interrogation of about five hours, he signed five confessions involving previously unsolved rapes which had been committed in the City of Plainfield between February and September, 1977. Consequently, he was charged with rape in five separate multi-count indictments. The first of the five indictments, involving a rape which occurred on February 12, 1977, resulted in a conviction affirmed on appeal. During that trial a Miranda hearing was conducted on the confession relating to that offense. It was found to be admissible and was submitted to the jury.

A second trial, before a different judge, involved an indictment for a rape committed in Plainfield on June 20, 1977.

Although defendant had been represented by private, retained counsel at his first trial, a representative of the Public Defender's office appeared on his behalf for the second trial. A Miranda hearing was conducted prior to selection of the jury. It is the State's contention, accepted by the trial judge in the matter presently before us, that defendant entered into a binding stipulation at the Miranda hearing on that second indictment permitting the trial judge to resolve the admissibility question in connection with the remaining three indictments. Upon hearing the testimony of two detectives and defendant, the trial judge ruled that all four confessions were admissible, including that which dealt with the charge for which a jury was then immediately selected and including the two indictments which later were consolidated for trial before another trial judge and are the subject of this appeal.

We find it difficult to understand why counsel apparently failed to provide the trial judge in the present case with a copy of the Miranda hearing transcript. In fact, no such transcript has been provided by either party on this appeal. Such a record is obviously essential to a proper disposition of the issue involved. R. 2:5-3(b). Therefore, we have obtained a copy from the record on appeal of the trial of the second indictment against this defendant. His conviction in that trial has already been affirmed on appeal and his petition for certification has been denied. State v. Powell , 84 N.J. 378 (1980).

When defendant appeared for trial of the second charge resulting from the five confessions, it was the trial judge himself who suggested one hearing on all four remaining statements. The following colloquy took place, prior to trial, on February 8, 1978:

THE COURT: Were these statements all taken at the same time?

[THE PROSECUTOR]: Yes, your Honor on the evening of ...


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