Michels, Pressler and Trautwein. The opinion of the majority was delivered by Pressler, J.A.D. Michels, P.J.A.D., dissenting.
Defendant Lawrence Krieger, tried to a jury, was convicted of two charges of arson contrary to N.J.S.A. 2C:17-1(b) and was sentenced to concurrent indeterminate terms.
We reverse the convictions, having concluded that the trial judge erred in denying defendant's motion for a judgment of acquittal at the close of the State's case. We are in full agreement with the argument of defendant then made that there was insufficient evidence adduced by the State to warrant a conviction since the only evidence of guilt, direct or circumstantial,
was a confession by defendant which lacked independent corroboration adequate to generate a belief in its trustworthiness.
Defendant, then 20 years old, was first employed by Sealy Mattress Company in Paterson as a production foreman on January 2, 1980. He was a Newark high school graduate, resided in Newark, had applied for a position as a Newark fireman and was on a waiting list for appointment thereto. Sealy occupied a three-story manufacturing facility. Located on the second story was a large storage room in which various materials used for the production of mattresses were kept. The room was a large open area, approximately 40 feet by 110 feet in size, which had to be traversed in order to reach a production area on the same floor. It appears that the main sewing area was on the first floor and apparently production activities involving foam rubber were conducted on the third floor. The plant employed about 70 people, all of whom began their work day at 7:00 A.M. Two or three of the employees worked regularly in the storage room and about 25 worked in the second floor production area. Defendant's duties required him to move about all over the plant and took him many times daily through the storage room.
The first of the fires occurred on the morning of January 29, 1980, and the second occurred on the morning of February 12, 1980. On each occasion a bale of material in the storage room had been ignited, the fire and its damage were localized, the fire was quickly brought under control by employees using fire extinguishers, and the Paterson Fire Department responded, completed the fire extinguishing process, and investigated. The investigations of both fires indicated to the fire officials that they were of incendiary origin, that is, set by human agency, although there was no indication of or opinion about the actual manner in which they had been set or, at least as to the first fire, whether it had been accidentally or intentionally set.
Defendant, who was at work on both occasions, was routinely questioned at the plant on February 14, two days after the second fire, by two investigators from the Passaic County Prosecutor's office, Investigators Robert Daniels and Arthur Hyslop. He was given Miranda warnings, was asked about the fires, and denied any knowledge thereof. He also agreed to submit voluntarily to a polygraph test, which was scheduled for February 25. On the scheduled date, defendant appeared at the prosecutor's office and was introduced by Hyslop, on that day in charge of the investigation because of Daniels' absence, to Officer Richard Falcone, the prosecutor's polygraph operator.
Defendant and Falcone were alone together for about an hour. It is undisputed that approximately the first half hour of the session was consumed by preliminary procedures including Falcone's giving of Miranda warnings, his explanation to defendant of the way the polygraph machine worked, and the actual administration of a "control" test. It is further undisputed that at the conclusion of these preliminaries, the polygraph testing was terminated and defendant, at Falcone's encouragement, confessed to setting both fires. What is, however, very much disputed is the nature of Falcone's encouragement, the record supporting to some degree at least, defendant's assertion of psychological coercion.
In any event, after defendant made his admission to Falcone, Falcone took him back to Hyslop for formal interrogation. Falcone first, however, elicited the following written statement from defendant:
I'm really sorry for what happened at Sealy Mattress Company. I'm the one who set the fires on Jan. 29 and Feb. 12. I will never do anything like this again, I never did anything like this before and I'm ashamed. Everything I have written and said is 100% truth, I'm sorry.
Lawrence Krieger [signed]
I have read the above and it is all the truth. No one have forced me to write this, or made any promises to me. I was treated very fairly by Richard Falcone. I have no complaints about what has happen hear today.
Lawrence Krieger [signed]
Hyslop's interrogation of defendant, which was again preceded by Miranda warnings, culminated in defendant's second signed confession. This confession is a four-page document in question and answer form, the entire inculpatory portion of which is as follows:
Q. Knowing and understanding your rights, and knowing you are not under arrest or custody, do you wish to give us a statement about a fire which occurred on January 29, 1980 and a fire that occurred on February 12, 1980?
Q. Can you tell me in your own words the circumstances leading up to the fire which occurred on January 29, 1980?
A. Well I was under pressure a lot of problems and I was constantly told I was irresponsible. I punched in. I went into the sewing room to see if anything had to be brought up stairs. There wasn't anything at the time. So I walked up stairs went into the store room and I had a cigarette and I was playing with a book of matches. I dropped them on the floor then the fire started. And I grabbed the fire extinguisher to put it out. No harm intended. Then other people grabbed fire extinguishers until the fire dept. arrived, then I went downstairs to help cover the machines and the materials so they wouldn't be damaged. Then we cleaned up and work went on as usual.
Q. What kind of pressure are you under?
A. Many family problems, non-understanding of the things I do, Lack of my ability and responsibility.
Q. On January 29, 1980, what time did you punch in to work?
A. About five to seven. (a.m.)
Q. How soon after punching in did you go to the store room?
Q. Approximately what time did you set the fire?
Q. You stated previously, that you were playing with a book of matches. Why?
A. I dropped them on the floor to start the paper on fire to burn the matts.
Q. In what part of the store room did you ...