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State v. Darby

Decided: June 27, 1986.


On appeal from the Superior Court, Law Division, Essex County and on remand from the Supreme Court.

Morton I. Greenberg and Gaynor. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.


[211 NJSuper Page 368] Defendant was indicted in Essex County on January 14, 1980 for conspiracy to murder David Kelly and Beverly Harrington, for the murder of each and for possession of two handguns without a permit. N.J.S.A. 2C:5-2; N.J.S.A. 2C:11-3; N.J.S.A. 2C:39-5(b). He was convicted on all four counts and, after

merger of the conspiracy count into the murder counts, was sentenced to two life sentences with 25 year periods of parole ineligibility for the murders and to a five year term on the weapons count. The sentences were consecutive to each other and to a sentence in Union County. He appealed and in an unreported opinion we affirmed on May 28, 1985.

On the day of our decision, defendant filed a motion to file a supplemental brief raising new arguments, but inasmuch as our opinion was released before the motion was received it could not be considered. Defendant wished to assert before us that a statement he gave on January 16, 1980 was wrongly admitted as it was involuntary and improperly obtained by the Essex County Prosecutor's office. Thus on June 6, 1985 he filed a petition for rehearing. By our order of June 28, 1985 we reserved substantive action on the petition and directed the parties to brief the issues raised in the proposed supplemental brief. The briefs were filed and after we considered them we granted the petition on September 5, 1985, but adhered to our decision of May 28, 1985 as we determined that the issues raised were clearly without merit. R. 2:11-3(e)(2).

Subsequently defendant petitioned for certification and the Supreme Court by order of March 25, 1986 granted the petition "limited solely to the defendant's sixth amendment claim that his right to counsel was violated by the post-indictment interrogation of defendant by representatives of the prosecutor. See, Comment to Rule of Professional Conduct 3.8, citing United States v. Callabrass, 458 F. Supp. 964 (S.D.N.Y.1978)." The Supreme Court 103 N.J. 493 remanded this matter to us and did not retain jurisdiction. By this opinion we dispose of the remanded issue.

Inasmuch as the case has been remanded only on the above issue we do not describe the crimes themselves but rather set forth only the circumstances surrounding the giving of the statement. At a Miranda*fn1 hearing, at which Detective William

Clark of the Newark Police Department testified, it was established that while incarcerated, apparently in Essex County, defendant wrote a letter to an assistant prosecutor in Union County indicating that he wanted to make a statement to the Newark police about certain crimes, as well as a proposed murder of a Newark policeman. News of the receipt of this letter was obviously disseminated as on January 16, 1980 Detective Reitzel of the homicide squad of the Essex County Prosecutor's office placed a call to Clark and informed him that defendant wanted to talk to the Essex County authorities in reference to a robbery and other matters. As a result, Clark, Reitzel, Investigator Morales of the Newark Police Department and Assistant Prosecutor Norman Menz of the Essex County Prosecutor's office went to the Hudson County jail where defendant was then confined, arriving at approximately 4:00 p.m. on January 16, 1980.

The officers met with defendant in an interview room in the jail, identified themselves and their agencies and informed defendant they had come at his request. No defense counsel was present. After they asked defendant what he wanted to talk about, defendant described the subject. The officers orally advised defendant of his rights under Miranda by reading them to him from a standard form. Inasmuch as the officers initially believed that defendant was not involved in anything that he was going to discuss, they did not at first ask him for a signed waiver. Defendant then gave two statements to Detective Clark which did not relate to the murders of Kelly and Harrington. After giving the statements which were not incriminating of him, defendant read and signed them.

Detective Reitzel then gave Miranda warnings to defendant and included the fact that he, Reitzel, wanted to talk about the murders of Kelly and Harrington. After he received this advice, defendant signed a form waiving his Miranda rights. Defendant was told that a co-defendant, Teddy Brown, had given a statement concerning the incident characterizing defendant as the triggerman. Defendant then stated that he would give a statement. Detective Reitzel asked the questions

and typed the statement. Defendant was asked to read the statement, after which he indicated that the statement was true and that he did not desire to change it. Defendant then signed the statement. Clark testified that there were no threats, force or intimidation used in the taking of the ...

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