On appeal from the Superior Court, Law Division, Bergen County.
Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
This matter comes on before this court on appeal from a murder conviction. The unusual circumstances of the case require that we set forth the facts leading to defendant's indictment and conviction at length.
The victim in this case was Andrea Cella who was 19 years old and was employed at the Urban National Bank in Franklin Lakes, New Jersey. On November 5, 1979 she arrived at the bank for work at approximately 7:45 a.m. Because her car was being repaired by her acquaintance Craig Farnsworth, she came in a 1975 four-door Plymouth Valiant hardtop she had borrowed from him. Andrea left the bank at approximately 5:00 p.m. and returned to her family's home three to four miles away. There she changed into jeans, a dark blue sweatshirt and hiking boots. After having dinner she left at approximately 6:30 p.m. and attended a scuba diving class from 7:00 p.m. to 9:00 p.m. After the class Andrea went to the Brownstone Inn, a neighborhood bar in Wyckoff, New Jersey. Defendant Bruce Hollander was also at the Brownstone Inn that evening, arriving
between 9:00 and 9:30 p.m. Defendant weighed between 200 and 230 pounds at the time. Defendant and Andrea had been good friends in high school, but apparently their relationship had cooled. Defendant, however, led a friend of his to believe that he had sexual feelings for Andrea.
Defendant and Andrea played a pinball machine in the gameroom area of the Brownstone Inn. Then Andrea left the gameroom area and went into the bar area where she sat and talked with some other friends. At approximately 11:15-11:20 p.m. Andrea called her father, informed him of her whereabouts and told him she would be home at 12:30 a.m. Shortly after midnight defendant and three male friends, Jerry DeFino, Brad Ranek and Ed Weaver, left the bar and went into the parking lot. Defendant and his friends then separated as the friends went to a diner whose operators did not permit defendant to enter. When defendant's friends left, Andrea was still in the bar and defendant headed back to that establishment. At approximately 11:30 to 11:45 p.m. Andrea told friends in the Brownstone Inn she was going home. At about midnight or shortly thereafter she was seen leaving the bar alone.
At about 5:00 a.m. Andrea's father called the Franklin Lakes police to report that Andrea had not arrived home. At approximately 5:40 a.m. Patrolman Scott Todd of the Wyckoff police department saw Farnsworth's car in the McDonald Realty parking lot across the street from the Brownstone Inn. This lot was often used by patrons of the Brownstone Inn. Todd had seen the car there earlier at approximately 12:30 a.m. and again at 2:30 a.m. Todd approached the car at approximately 5:40 a.m. and observed that the driver's side window was open, the keys were in the ignition and the passenger's side front door was unlocked. He noticed that the driver's seat was positioned far back so that there was a lot of room between the front of the seat and the dash area. He also observed a green canvas bag on the front seat of the car. Todd then went to the police headquarters for a short time but returned to the McDonald lot with Patrolman Schickfus. Todd looked through the
canvas bag for identification and found a wet towel and a notebook with the name "Andrea Cella" on it. Todd then rolled up the car window, removed the keys from the ignition and locked up the car. He then brought the car keys to the Wyckoff police headquarters at about 6:30 a.m. on November 6.
At approximately 9:15 p.m. on November 6 Lieutenant Karl Neubler of the Wyckoff police and Detective Bernard Kenny of the Franklin Lakes police went to the Brownstone Inn and interviewed several patrons and employees. After about 45 minutes they left the Brownstone Inn and proceeded to the McDonald Realty lot and unlocked the vehicle to examine its contents. They then decided to take the car to the Wyckoff police headquarters for safekeeping. Neubler drove the car without adjusting the seat and only touched what was necessary to operate it. The vehicle was locked at the Wyckoff police department at approximately 10:25 p.m.
On Wednesday afternoon, November 7, 1979 at approximately 3:30 p.m. Andrea's body was discovered floating near the shoreline in a private lake called Shadow Lake, located in the Shadow Lake Estates residential section of Franklin Lakes, less than three blocks from her home. The police were notified and arrived at the scene at approximately 3:42 p.m. The body was then removed from the water. The blue sweatshirt Andrea had been wearing was pulled up close to her neck exposing her breasts. Her left foot was bare. Under the sweatshirt she had on a maroon and white turtleneck. Her bluejeans were secured around her waist. While the police at first saw no blood on her, when the body was lifted from the water her head tilted and she began purging blood from her nose and mouth.
An autopsy was conducted on November 8, 1979 by Medical Examiner Dr. Marlene Lengner. Lengner determined that the time of Andrea's death was approximately between 12:30 a.m. and 3:00 a.m. on Tuesday morning November 6. The cause of death was forced asphyxiation. Lengner thought that the forced asphyxiation was done by placing something over her
face. The tissue over the esophagus was split. This indicated that force was used either in the stomach or lower chest where air that is usually in the stomach is forced upward. Lengner ruled out strangling and drowning as causes of death. She determined that the condition of the larynx indicated that there had been a good deal of force against it, and that edema or swelling in the larynx demonstrated that the victim had resisted the asphyxiation. Three bruises "the size of knuckles" probably caused by a blunt object prior to death were found in the head area. Lengner concluded that there were several signs of a violent struggle. The autopsy report showed that Andrea's height was 162 cm or 5'3" and her weight was 53.8 kgs. or 118 lbs. She was described as "short" and "small."
On Wednesday night November 7, after Andrea's body was discovered, Farnsworth's car was towed from the Wyckoff police headquarters to the Franklin Lakes police headquarters and processed for fingerprints. A partial left thumb print was discovered on the front seat adjustment knob which regulates the position of the seat forward or back but no other fingerprints of value were found.
The first police contact with defendant concerning the case seems to have been on Saturday, November 10, 1979. At approximately 9:00-9:30 p.m. on that day detectives Bruce Cameron and Kenny of the Franklin Lakes police department who were investigating the matter went to the Brownstone Inn where they met defendant. Cameron told defendant that they were asking the persons who had been at the Brownstone Inn on November 5 if they would voluntarily consent to having their fingerprints taken. Cameron asked defendant if he would consent to going to the Franklin Lakes police station that evening to be fingerprinted and defendant agreed. At approximately 10-10:30 p.m. defendant voluntarily went to the Franklin Lakes police station to be fingerprinted. He was given a voluntary consent agreement which he read and signed and his fingerprints were then taken. Cameron said he had trouble taking defendant's prints because defendant's fingers were
short and stubby and were perspiring heavily. During the course of the investigation several hundred people, including patrons of the Brownstone Inn on November 5, 1979, were fingerprinted.
Defendant agreed to return to the police station the following day for an interview. On November 11, 1979 he came in and was interviewed by Cameron and another investigator. Defendant told them that on November 5, 1979 he arrived at the Brownstone Inn in his blue Dodge Colt between 8:00 and 9:00 p.m. and met a friend in the parking lot. He then went inside and had a few drinks and played pinball. At approximately 10:00 p.m. he was playing pinball with Jerry DeFino when Andrea Cella walked in and played a game with him and DeFino. Defendant said that afterwards Andrea got up and went into the barroom. Defendant said that Andrea was wearing a sweatshirt but he could not recall her other clothing. Defendant stated that he left the Brownstone Inn at 11:00 p.m. with Brad Ranek and Jerry DeFino.
Investigators Robert Peacock and Randy Rocks, of the Bergen County Narcotics Task Force, assigned to assist the homicide squad of the Bergen County Prosecutor's office in the Andrea Cella investigation, went to the Brownstone Inn on November 14, 1979 as undercover agents. They talked to a number of people including defendant about the death of Andrea Cella. Peacock told defendant that the police had asked him what Andrea had been wearing and defendant told Peacock that he had been asked the same question. Peacock said he told defendant he didn't know and defendant looked at Peacock and said "I know better." Peacock told defendant that the newspaper said that Andrea had not been sexually abused and defendant stated "I know better" that she was. When Peacock asked defendant how he knew, defendant had no response.
Rocks had a conversation with defendant concerning Andrea's death. Defendant told Rocks that he had been talking to her and playing pinball with her at the Brownstone Inn the
night of the murder. Defendant further stated that "the stupid cops" didn't know what they were doing. They didn't think that she was sexually abused, "but I know different." Rocks asked defendant what else he knew and defendant didn't reply. Rocks stated that defendant stood with a half smile on his face. Defendant then said the police had half-drained Shadow Lake looking for her shoe but they would never find it.
On January 9, 1980 Cameron asked defendant if he would agree to come to the Franklin Lakes police department again to answer some other questions. Defendant agreed to the interview and went to the police station for questioning. Cameron went over the same information he had previously discussed with defendant and defendant gave him the same account of his activities on the night of November 5, 1979 as he previously had. Cameron also asked defendant about his relationship with Andrea and whether he had ever gone to bed with her. Defendant stated that on New Year's Eve 1977 there was a party at his house and a lot of people spent the night. Defendant said Andrea had slept in the same bed with him and spent the night, and that while they had "fooled around a little bit," they did not have intercourse. Defendant also said that he and Andrea had been good friends about two years before but had not "partied" since then. Defendant told Cameron that to the best of his knowledge Andrea was not seeing anyone other than her boyfriend, Richard Brown.
Obviously defendant was now a suspect in the case. The police asked him to submit to a polygraph test and on March 3, 1980 the test was given by Investigator Edward Denning of the Bergen County Prosecutor's office. Before the test defendant signed a consent form which read:
I, Bruce Hollander, voluntarily agree to take a polygraph (lie detection) examination to be given to me by Edward Denning of the Bergen County Prosecutor's Office.
I also authorize the Bergen County Prosecutor's Office to disclose, both orally and in writing, the results of this examination. I fully realize that I have the right to secure the advice of a lawyer or legal counsel before I sign this form or submit to this polygraph (lie detection) examination. I also realize that if I
cannot afford an attorney at this time the State will immediately secure one for me, but I waive these rights. I realize that anything I say during this examination may be held against me at a later date in a criminal proceeding. I also realize that I may remain silent and say nothing. During this examination I know that I may leave at anytime and in no way can I be forced to stay. I have no objection to taking a lie detector test, and I do so voluntarily. No one has promised me anything, threatened me, or in any way forced me to take the test. I do it of my own free will because I have nothing to hide.
During the test defendant was asked and answered questions concerning the death of Andrea. Following the test Denning wrote a report in which he concluded:
In the polygraph records there are indications of truthfulness when HOLLANDER claimed that he had no guilty knowledge of nor had he participated in the murder of ANDREA CELLA.
It is the opinion of the examiner, based upon HOLLANDER'S polygraph examination, that he is telling the truth to the above facts.
The sweatshirt Andrea had been wearing had been taken shortly after the homicide to the New Jersey State Police laboratory for examination and testing by Margaret L. Tarver, a laboratory chemist assigned to the Biochemical Evidence Unit of the State Police laboratory. Tarver filed a laboratory report dated December 21, 1979 which indicated that several bloodstains were found on the sweatshirt. One of the stains gave reactions for blood group "A" and two other stains gave reactions for blood group "AB." Blood group determinations on three other stains were inconclusive. Andrea's blood group was "A." The State Police laboratory made an analysis of pubic hair combings from Andrea and her sweatshirt and bluejeans. This test showed the presence of red synthetic fibers which did not come from her own clothing. A pair of men's blue jockey shorts found in the vicinity of Shadow Lake was also analyzed and revealed red synthetic fibers. At trial the prosecutor admitted that somebody weighing 220 pounds could not fit in a pair of shorts that size.
Obviously the initial investigation was not fruitful. But on March 2, 1982 the State received information that the defendant had admitted responsibility for Andrea's death. As a result the fingerprints taken from defendant on November 10, 1979 were
re-examined and on March 6, 1982 investigators concluded that the partial print found on the seat-adjustment knob matched part of defendant's left thumbprint. On March 12, 1982 Investigator Robert Rehberg of the Bergen County Prosecutor's office, Cameron and Sheriff's Officer Kaszner obtained information from the Federal Bureau of Investigation verifying the print found in the car as being from defendant. At that point the police seemed to be of the view that they had enough information to arrest defendant. But they decided not to do so until they found from defendant whether there was a rational explanation for his thumb print being in the car.
The police went to defendant's apartment on March 12, 1982 but he was not there. Clearly, however, he heard of their visit for at approximately 5:30 p.m. on that day he called the Bergen County Prosecutor's office to ask why the police were looking for him. Rehberg told him that he wanted to talk to him about the ongoing Andrea Cella homicide investigation and asked him if he would come to the prosecutor's office for an interview. Defendant said he had been interviewed on numerous occasions regarding this investigation and stated that he did not have any new or additional information but nevertheless he agreed to come to the prosecutor's office. At approximately 9:30 that evening defendant went to the prosecutor's office where he was taken to an interview room and advised of his Miranda rights by Rehberg. Although Rehberg was satisfied that he had probable cause to arrest defendant, he intentionally did not advise defendant that the police viewed him as being involved in the killing. Nor was defendant initially arrested. Cameron then joined in the meeting.
Rehberg told defendant he wanted to discuss the Andrea Cella homicide and the events in the Brownstone Inn on November 5, 1979. Rehberg stated that he reviewed two reports from prior interviews with defendant and asked defendant if he recalled being in the Brownstone Inn on November 5, 1979. Defendant said he remembered being there but did not recall the time. Defendant told Rehberg he did not see the car
Andrea had been operating but recalled that she normally operated a yellow Fury. He told Rehberg he last recalled seeing Andrea when she was by the pinball machine at the Brownstone Inn, stating that he left the bar at approximately 11:00 p.m. and went home. Rehberg asked defendant if subsequently to November 5, 1979 he saw the car the victim had been operating and defendant stated that a day or two after November 5, 1979 he was in a car with Jerry DeFino and Bradley Ranek when they drove past the Brownstone Inn and one of them told defendant that a car they observed in the lot was the car Andrea had been operating on the night she was killed. Defendant described the car as a very old model silver midsized car. Rehberg again asked defendant if, on the evening of November 5, 1979 or any time thereafter, he had been in the car Andrea had been operating. Rehberg stated that defendant denied ever being in the car and added that he did not learn until after the murder, through DeFino and Ranek, what type of car Andrea had been operating.
After about 20 minutes Rehberg asked defendant if he would be willing to give the same information he had just given in a sworn statement. Defendant agreed to this and thus a sworn statement was taken commencing at 9:52 p.m. and ending at 10:05 p.m. on March 12, 1982. After this statement was taken defendant theorized to Cameron and Rehberg that Andrea's death was an accident, probably the result of her resisting someone's sexual advances and that this resistance probably caused whoever she was with to panic and accidentally kill her. Rehberg stated that when he asked defendant if Andrea had ever teased him, defendant replied "Yeah" and went on to say that sometime in 1978 Andrea was at his house and while they were in his bedroom they were making out, kissing and petting on his bed. Rehberg stated that defendant told them that when he attempted to have ...