On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Schreiber. For affirmance -- None. The opinion of the Court was delivered by Handler, J.
This is the second time we have considered this case. On the first occasion, we granted the State's motion for direct certification to review the dismissal by the Superior Court, Law Division, of the municipal court presentment charging the defendant, Dr. Harry D. Sugar, with the murder of his wife. The dismissal was based on the unlawful tape-recording by the arresting police officers of a privileged and confidential conversation between the defendant and his attorney while defendant was still in police custody following his arrest. State v. Sugar, 84 N.J. 1 (1980) (Sugar I).
This Court determined that the police misconduct constituted an egregious violation of defendant's constitutional right to counsel. Although the gravity of the constitutional abridgement demanded extraordinary relief, we determined that an appropriate remedy could be fashioned short of a dismissal of the criminal prosecution. Accordingly, we directed that any witness or evidence "tainted" by the illegal eavesdropping could not be used by the State to indict or prosecute the defendant. Id. at 25. To effectuate that ruling, we ordered that the trial court hold a threshold hearing -- a taint hearing -- at which the State would have the burden of demonstrating beyond a reasonable doubt that "it [could] conduct a prosecution with unsullied evidence and witnesses * * *." Id.
Thereafter, the required taint hearing was held, following which the court ruled on the admissibility of proffered evidence and the competency of particular witnesses. The State was then permitted to proceed with the prosecution of Dr. Sugar. On May 4, 1981 a State grand jury returned a one-count indictment charging Dr. Sugar with the murder of Joan Sugar in violation of N.J.S.A. 2A:113-1 and 2. Defendant pleaded not
guilty and, following a change of venue, the trial commenced on July 6, 1981 and concluded on August 4, 1981, when the jury returned a verdict of guilty of second degree murder. On September 11, 1981 the trial judge sentenced defendant to eighteen to twenty years in prison.
Defendant then filed a notice of appeal. With one judge dissenting, the Appellate Division affirmed defendant's conviction. Defendant filed an appeal as of right with this Court under Rule 2:2-1(a)(1) and (2) on the grounds that the case involved a dissent and also raised substantial constitutional questions. For the reasons that follow, we reverse the judgment of the Appellate Division. We set aside the conviction and remand this matter for further proceedings.
In our previous decision our concern was solely with whether police misconduct had resulted in an infringement of defendant's constitutional rights and what relief was appropriate to redress such a constitutional violation. 84 N.J. at 8-9. The facts directly relating to the commission of the crime as such were not directly material to our decision. Now, however, we must consider these facts in determining whether a reversal of defendant's conviction is required in light of additional asserted prejudicial errors of constitutional dimensions.
The facts of record surrounding the commission of the crime indicate that on July 10, 1979, defendant filed a missing persons report regarding his wife. He reported that a few evenings earlier he had had a dispute with his wife lasting approximately six hours; she had left in her automobile and had not returned since. Thereafter the police instituted a search for Joan Sugar. During the remainder of July, Sugar appeared to be cooperative with the police in their attempts to locate his wife.
On July 16 Lieutenant Tirelli, Chief of Detectives, assigned Detective John Mazzeo to the missing persons investigation. Mazzeo followed up on several leads given by Sugar, interviewed
Sugar several times, and spoke to Mrs. Sugar's two daughters, as well as to Sugar's medical assistant, Barbara Myers.
In mid-July Albert Rochetti, who rented and farmed part of Dr. Sugar's property, saw fifteen to twenty "buckets" of dirt lined up in a row approximately 75 feet from defendant's front door. On July 27 Mazzeo was advised of these piles of dirt and he went to the property to verify that the piles existed. On July 30 Mazzeo obtained samples of the dirt and then decided to search the house to determine if the dirt came from Sugar's basement.
On July 31 Mazzeo asked Sugar to come down to the Vineland Police Department. The officers asked defendant about the dirt piles. Defendant claimed that the dirt came from a garden he was making. Defendant was then told that he was a suspect and he was given Miranda warnings prior to further questioning. At that time, defendant claimed that he could not remember what happened after his wife left. The officers asked defendant if he would take a polygraph or submit to hypnosis. Defendant responded that he wanted to consult his lawyer because he was feeling upset and could not do it then. After the officers gave defendant his Miranda warnings, they also asked for permission to search his house and property; he agreed and signed a form consenting to the search.
After this meeting, on July 31, when Sugar arrived back at his home the police were already present. During the ensuing search, defendant lay on his bed. Mazzeo and the other officers searched the house and basement thinking that they would find evidence of a burial. They walked around the grounds and Mazzeo observed dry leaves under a picnic table. The leaves resembled the leaves in a fish pond several feet south of the table. They picked up the table and started to brush some of leaves away and noticed that the ground was soft. Mazzeo testified that he wanted to investigate further but that the other officers dissuaded him from doing so.
Both Mazzeo and Lieutenant Tirelli initially claimed that heavy rains in the beginning of July accounted for the soft soil. After defendant presented weather information indicating only scant rain during this period, Mazzeo admitted, under questioning by the court, that he had only mentioned the rain as an excuse to cover up for his failure to search thoroughly under the picnic table.
Defendant testified that he next spoke to the police on August 2 and 3, when he called Mazzeo to let him know that he was going to California to visit his son for a few days; he did not want to give the police the impression that he was running away and he wanted them to have his phone number in case there were any "new developments." Defendant stated that Mazzeo called him back on August 3 and told him that the police were going to use a psychic to locate Mrs. Sugar and asked him to bring some personal objects of Mrs. Sugar's to the police station.
According to Mazzeo, when he called defendant and told him about the psychic, defendant said "I will do anything to locate my wife." Both Mazzeo and Tirelli further testified that they met with defendant on August 3, when he dropped off the personal items, and defendant orally agreed to let the police walk on his property again. They claimed that Sugar said he would appreciate the police presence on his property while he was away. Tirelli also testified that Sugar told them to do whatever was necessary to find his wife and that the police could enter his house "if necessary."
Defendant, on the other hand, denied that he met face-to-face with either Tirelli or Mazzeo when he dropped the items off at the police station on August 3. According to defendant, he gave the requested items to the officer sitting at the desk with instructions to give them to Detective Mazzeo. Defendant then left and did not communicate with the police again until his return from California. He testified further that after July 31 the police never asked for permission to re-enter his property
and that they never indicated that they might go back on the property. He also said that after the July 31 search, he no longer wanted the police on his property and assumed that they would ask permission to re-search the property.
At 4:00 p.m. on August 6, Tirelli and Mazzeo went back to defendant's house with a psychic and conducted another search. The psychic walked around the property and sat in Mrs. Sugar's car. Mazzeo had a shovel in his car and Tirelli asked him "do you feel like digging?" They took the shovel over to the picnic table, and as they approached it, Mazzeo smelled a foul odor. They moved the table and dug. When they hit an object, they called for the assistance of several members of the Vineland Police. The object was a dead body. The police then proceeded to uncover the body and photograph the grave site. At the morgue dental x-rays confirmed that the body was that of Mrs. Sugar.
Defendant was arrested on August 7 and was taken to the Vineland Police Department Detective Bureau. He was again advised of his Miranda rights and then questioned by Detectives Tirelli, Mazzeo and William Walters and Captain Joseph Soracco, Chief Investigator of the Cumberland County Prosecutor's office. At this time, defendant could recollect only having engaged in a seven-hour argument with his wife, that she got in her car and left, after which his mind "went blank." During this session, defendant requested that he be advised by legal counsel, and around 1:00 a.m. he succeeded in contacting a member of the Vineland law firm of Greenblatt and Greenblatt.
At approximately 2:40 a.m., Rocco Tedesco, and attorney associated with the firm, arrived at the police station and interviewed defendant in a room adjacent to the Detective Bureau. As noted in our previous opinion, during this interview, Detective Tirelli undertook to eavesdrop on and record defendant's conversation with Tedesco.
Later in the morning Mazzeo again advised defendant of his Miranda rights and asked him if he wanted to say anything.
Defendant requested to speak to his lawyer Jay Greenblatt, who had already arrived at the police station. When defendant began conversing with his attorney in private, Tirelli, together with Soracco, and Lieutenant Guy Buscemi, again proceeded to eavesdrop on and record the conversation between defendant and his lawyer. Mazzeo entered Tirelli's office and was instructed by Tirelli to take notes on the attorney-client conversation; the monitored conversation was also partially heard by Detective Walters, who was allowed the next day by Tirelli to listen to the tape-recording of the conversation.
The monitoring of the attorney-client conversation continued for about 45 minutes. As noted in our previous opinion, neither defendant nor his attorneys were aware that their conversation had been monitored. According to the trial court's findings, after this conversation was concluded, Tirelli advised defendant that he would be charged with specific offenses.
On the same day, August 7, the Vineland Police executed a search of defendant's home pursuant to a warrant that was very specific in terms of the items to be seized. Defendant's attorney quickly became suspicious of the possibility that there had been an eavesdropping of his conversation with his client. He later received a phone call from an informant who told him that the conversation had been "bugged."
Greenblatt contacted Cumberland County Assignment Judge Francis, who suggested that Greenblatt contact the State Division of Criminal Justice. Upon confirmation that an eavesdropping and recording had occurred, the Attorney General superseded the Vineland Police Department and the Cumberland County Prosecutor's office regarding the investigation of the homicide and possible prosecution of defendant. The steps taken by the Division of Criminal Justice to pursue the investigation and proceed with the prosecution have already been recounted. 84 N.J. at 8-9.
Pursuant to our remand order, the trial court conducted a series of taint hearings on August 14-17, 20-23 and November
6 and 12, 1980. First, the court granted, over defendant's strenuous objection, the State's application for an order closing the proceedings to the press and the public. The trial court also closed the contemporaneous hearings dealing with defendant's motion to suppress all evidence the State derived from the warrantless search of Sugar's premises by the Vineland Police on August 6, 1979.
On this record the Appellate Division, as noted, affirmed defendant's conviction of second degree murder. The Appellate Division held unanimously that the prosecution against Dr. Sugar was not based on "tainted" witnesses and evidence insofar as the prosecution relied on the testimony of Detective Mazzeo and further, that defendant's rights of confrontation, including specifically the right to cross-examine Mazzeo, had not been violated. The court also unanimously ruled that evidence relating to defendant's purchase of certain drugs was not derived from tainted witnesses, and that expert opinions on the cause of death involving such drugs were properly admitted at trial. The court also agreed that the mandated taint hearing, as well as the hearing on defendant's motion to suppress evidence, were properly closed to the public by the trial court. The dissenting judge differed from the majority on one issue, that concerning the validity of a second warrantless search of defendant's property, which resulted in the discovery of Mrs. Sugar's body. Unlike the majority, the dissenting judge would have ruled that this search was not a valid, consensual search and that the body and "all other evidence derived from examination and testing of the body," should have been suppressed; he would have reversed and remanded for a new trial. These rulings constitute the issues we consider on this appeal.
The trial court found that the only witness involved in or exposed to the illegal intercept who could not testify for purposes of the grand jury proceedings and at trial was Tirelli.
According to the court, Tirelli had too much at stake in the outcome of the trial to be expected to testify truthfully. The trial court, however, was satisfied beyond a reasonable doubt that Mazzeo would be able to testify free from taint and rejected defendant's claim that Mazzeo was shaping his testimony around the illegally intercepted information.*fn1 The trial court's decision to permit Mazzeo to testify was also based on his perception that despite Mazzeo's desire to exonerate ...