On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None. The opinion of the Court was delivered by Handler, J.
[97 NJ Page 116] This case requires that we determine whether statements made by a defendant, subsequent to his request for counsel issued in the context of his refusal to submit to a polygraph
examination, were properly suppressed on the ground that they were obtained in violation of his fifth amendment right to have counsel present at an interrogation.
Defendant, Robert Ray Wright, is charged with arson and murder, as a result of a fire he allegedly set on January 14, 1981, in which three children died. Defendant was taken into custody on February 6, 1981, at which time, upon being advised of his Miranda rights, he was questioned extensively about several fires. As found by the trial court, the defendant did "at no time during this period * * * either ask for a lawyer or ask that interrogation stop." Although he admitted setting fires at seven separate locations, defendant disclaimed knowledge of the fire of January 14, 1981.
On February 11, 1981, defendant agreed to take a polygraph examination. He was again advised of his Miranda rights and, as found by the trial court, "there was no request for a lawyer, nor a request [by defendant] to stop talking." The polygraph test resulted in a typed statement, wherein defendant denied any involvement with the fire.
Pursuant to an agreement reached on February 11, 1981, defendant returned to the prosecutor's office on February 12th to take another polygraph test. Once in the polygraph suite, however, defendant refused to submit to the examination. It was established at the hearing below that the investigator at the scene had related, in his handwritten notes, that defendant "refused to sign [a] waiver and wanted an attorney." The investigator testified that he could not recall this request for an attorney, but acknowledged that "if I wrote it down, that's the way it happened." However, he later recalled that defendant's request was more accurately "I won't sign any more deeds [or waivers] without a lawyer present."
Defendant was then brought back before several members of the prosecutor's staff, who had been advised only of his refusal to submit to the examination,*fn1 and who proceeded to inform defendant of discrepancies between his statement of February 6th and the polygraph test of February 11th. A sheriff's officer began questioning defendant about events that took place before and after some of the other fires defendant had admittedly set. Defendant was given his Miranda rights anew, and then told by one of the officers present that defendant was an "admitted arsonist." It was then directed that defendant be returned to jail. After being handcuffed, defendant was "[a]ppealed to a final time" by the assistant prosecutor, who recounted the pending arson charges. At this point, defendant cried and confessed to having set the fire of January 14, 1981.*fn2
The trial court granted defendant's motion to suppress any written or oral statements made by him following his request for an attorney upon leaving the polygraph room.*fn3 The State filed an emergent application with the Appellate Division, seeking review of the trial court's suppression order. The Appellate Division declined to grant leave to appeal. The State then sought leave to appeal to this Court, seeking an order directing the Appellate Division to grant leave to appeal so as to permit arguments on the merits, or requesting that this Court grant leave to appeal and itself determine the merits of the suppression order. This Court granted the motion to determine the merits of the suppression order, and also allowed a stay of
defendant's trial pending the outcome of this appeal. 94 ...