On certification to the Superior Court, Appellate Division, whose opinion is reported at 171 N.J. Super. 543 (1979).
For reversal and reinstatement -- Chief Justice Wilentz and Justices Sullivan, Clifford, Schreiber, Handler and Pollock. For affirmance -- Justice Pashman. The opinion of the Court was delivered by Sullivan, J. Pashman, J., dissenting.
Defendant Edward Barry was convicted of felony murder and conspiracy. He was sentenced to life imprisonment for the felony murder and a consecutive term of two to three years for the conspiracy. On appeal, the Appellate Division, in an opinion reported at 171 N.J. Super. 543 (1979), reversed the judgment of conviction and ordered a new trial on the ground that defendant's confession, introduced into evidence at his trial, should have been excluded as the fruit of an illegal arrest. The Appellate Division also held that defendant should have been allowed to introduce into evidence the confessions of co-conspirators Mark Jackson and Walter Barry (defendant's brother) which did not implicate defendant as a participant in the criminal episode.*fn1 The Appellate Division said that the confessions were statements against the penal interests of the declarants and admissible under Evid.R. 63(10). The State's petition for certification was granted. 84 N.J. 388 (1980). We now reverse and reinstate the judgment of conviction.
The State's proofs at trial showed the following. On January 12, 1976, defendant Edward Barry, his brother Walter Barry, Archie Murphy and Mark Jackson planned the robbery of the First Federal Savings and Loan Association of Montclair. They first met at an apartment in East Orange. Murphy supplied the guns to be used in the robbery but did not go to the bank. Defendant drove the getaway car to and from the bank. His brother Walter Barry, armed with a sawed-off shotgun, stood outside the bank as a backup man. Mark Jackson, armed with a revolver, entered the bank and committed the actual robbery which netted approximately $1,700. Included in these robbery
proceeds was a package of "bait money."*fn2 During the course of the robbery, Jackson shot and killed Sergeant Alfred Sellick of the Montclair Police Department who was on special assignment at the bank. Defendant then drove his brother and Jackson back to the apartment where Murphy was waiting and the money was divided.
The next morning an anonymous phone call tip was received at Montclair Police Headquarters describing the automobile used in the robbery. On the following day, Walter Barry was apprehended while operating the car in question and brought to headquarters for questioning. In the meantime the police, possessing information concerning a suspect in another bank robbery, and having viewed a concealed bank camera videotape of the First Federal robbery, obtained a warrant for the arrest of Mark Jackson. He was arrested on the morning of January 15, 1976 in Newark and taken in for questioning. He later gave a statement implicating himself, Walter Barry and Archie Murphy in the First Federal holdup.
Based on this statement, a warrant for the arrest of Archie Murphy was issued. In the meantime, the police had also obtained a statement from Walter Barry that he and Jackson alone were involved in the First Federal robbery. On January 15, 1976, at about 7:00 p.m., the police went to an East Orange apartment building to execute the arrest warrant for Murphy. When they arrived at the building, one of the detectives saw defendant Edward Barry standing outside and recognized him from a prior investigation of another robbery. Defendant was placed under arrest and given Miranda warnings. The officers then entered the building, found Murphy in one of the apartments and arrested him. Money which Murphy tried to hide in a sofa as the officers entered the room was confiscated, together with additional currency found in Murphy's pocket.
Defendant and Murphy were initially taken to the East Orange police station and then transported to the Montclair Police Headquarters. Since the Montclair facilities were overcrowded, defendant was transferred to the jail in the neighboring town of Glen Ridge and lodged there overnight.
After Murphy's arrival in Montclair, a comparison of the serial numbers of the bills found in Murphy's possession at the time of his arrest with the bank's record of the "bait money" resulted in the positive identification of one of the bills. Shortly thereafter, at approximately 1:25 a.m. on January 16, 1976, Murphy gave the police a statement implicating himself, Jackson, Walter Barry and defendant in the robbery. At the time of Murphy's statement, defendant was still lodged in the Glen Ridge jail as a result of his arrest some six hours earlier. On the basis of the Murphy statement, defendant was returned to Montclair Police Headquarters for a court appearance scheduled for 1:00 p.m. later that day in which he was to be formally charged with homicide.
Upon his return to Montclair Police Headquarters, defendant was given Miranda warnings once again and signed a written acknowledgment of their receipt. He was then questioned for the first time and told that Jackson, Murphy and his brother had all confessed to the robbery and that he had been implicated. Defendant was shown these confessions and reviewed their contents with Captain Charles Cummings, Detective Captain of the Montclair Police Department. He was also shown the weapons used in the robbery, as well as the deceased officer's gun, which had all been previously recovered by the police. At this point defendant agreed to confess and proceeded to give a full written statement of his involvement in the criminal episode.
The statement admitted defendant's participation in the planning and commission of the robbery. He identified Archie Murphy, Walter Barry, Mark Jackson and himself as the participants. Defendant stated that while Murphy remained at the
apartment, he drove the car to and from the scene of the robbery with Walter Barry and Mark Jackson as passengers. Upon their return to the apartment after the robbery, the proceeds of approximately $1,700 were divided. After completing and signing his statement, defendant was brought into court and charged. Subsequently, defendant, Walter Barry and Archie Murphy were jointly indicted for murder, armed robbery and conspiracy. A separate indictment was returned against Jackson.
Defendant received a separate trial by jury and was convicted. His written statement constituted the principal evidence against him. He did not testify at trial but sought to introduce into evidence the confessions of Mark Jackson and Walter Barry which tended to exculpate him, to the extent that neither of these statements named him as a participant in the criminal episode. The Walter Barry confession stated that he (Walter Barry) had driven the car to and from the bank and that Mark Jackson was the only other person with him in the car. Jackson's confession stated that Walter Barry drove the car and that "just me and him" were in it when they drove to the bank and, after committing the robbery, returned to the apartment. Jackson's statement also implicated Archie Murphy in the planning of the crime. The trial court excluded these two confessions, holding that a statement was admissible under Evid.R. 63(10) only when the declarant was unavailable to testify. The court also noted that defendant was implicated by the Murphy confession, which was concededly nonadmissible, and stated that it would be prejudicial to the State to allow only the Walter Barry and Mark Jackson confessions into evidence. After his conviction, defendant was sentenced to life imprisonment for the felony murder and a consecutive term of two to three years for conspiracy.
As heretofore noted, the Appellate Division reversed the conviction, holding that defendant's statement should have been excluded as the fruit of an illegal arrest and that the statements of co-conspirators Walter Barry and Mark Jackson were admissible
under Evid.R. 63(10). The Appellate Division found all of defendant's other contentions of error were clearly without merit. It did not pass upon the claim of excessive sentence, however, in view of the remand for a new trial.
We consider first the admissibility of defendant's confession. The Appellate Division held that it was the fruit of an illegal arrest and, therefore, excluded it. 171 N.J. Super. at 547-548. We disagree. The appropriate test to be applied in this type of case is whether the confession falls on one side or the other of the line that separates confessions which resulted from an exploitation of an illegal arrest from those which were the product of the defendant's free will, the taint of the illegal arrest having been sufficiently attenuated. See Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); Rawlings v. ...