On appeal from Superior Court of New Jersey, Law Division, Essex County.
Brody, Long and D'Annunzio. The opinion of the court was delivered by Brody, J.A.D. D'Annunzio, J.s.c. (temporarily assigned) (dissenting).
We granted the State leave to file this appeal from an order suppressing an incriminating written statement that defendant had given the police. The statement had been the State's chief evidence in a trial at which the jury found defendant guilty of murder and possession of a weapon for an unlawful purpose. Before imposing sentence, however, the trial judge granted defendant's motion for a new trial on the ground of newly discovered evidence that bore on the voluntariness of the statement. The new evidence led the judge to suppress the statement.
Arthur Lytle's bullet-riddled body was found on August 26, 1984, near Jack's Tavern on 14th Street in Newark. Police suspected that people engaged in the drug trade used the tavern as a place to meet. Several unsolved murders and assaults had occurred there. Sergeant Charles Whitner and Detective Gary Miller of the Newark police homicide squad were assigned to find Lytle's murderer. Their investigation produced a single lead: informers believed that shortly before he was killed, Lytle (who was also known as Hasaan) had robbed defendant. The detectives kept a lookout for defendant and finally found him months later in the Newark jail.
When Newark homicide detectives go on duty, they routinely examine a sheet containing the names of people who had been arrested in Newark within the past 24 hours. When Sergeant Whitner and Detective Miller went on duty Christmas day 1984 they saw defendant's name on the list. He had been arrested for a drug offense unrelated to the homicide.
There is undisputed documentary evidence that after seeing defendant's name on the 24-hour arrest sheet, the detectives then went to defendant's cell and signed him out to their custody at 10:05 a.m. They brought him to the nearby homicide squad room for questioning. Defendant signed a written waiver of his Miranda rights at 12:39 p.m. that the detectives had prepared at 12:30 p.m. His written statement is in the
form of typewritten questions and answers. It begins with the notation "Statement Began: 1250 hours." All other material evidence bearing on the issue of voluntariness rests upon the credibility of the two detectives and defendant.
Defendant first raised the issue of voluntariness at a Miranda hearing (the first Miranda hearing) conducted on November 7, 1985, the day before his trial. Sergeant Whitner did not testify at that hearing or at the trial because he was on vacation.
Detective Miller was the State's only witness at the first Miranda hearing. On his direct testimony he was asked what he did after seeing defendant's name on the 24-hour arrest sheet. He replied that he and Sergeant Whitner brought defendant to the squad room from the cell-block, advised him of his rights, had him sign the written waiver of Miranda rights and advised him that he was a suspect in the Lytle homicide. Detective Miller testified that at first defendant denied participation in the crime, but then gave the written statement after the detective had told him that "the word is out in the street . . . that the decedent had stuck him up for some money and drugs . . . and he had Hasaan killed. . . ." Detective Miller further testified that defendant was not physically harmed, threatened or given any promises.
Defendant's written statement contains a detailed recital of his robbery. It describes how on August 23, 1984, Lytle rode up to him on a bicycle and asked for a quarter gram of cocaine. When defendant produced the "coke" from the "stash" where he had it hidden,
Hasaan pulled his pistol out and stuck it in my stomach, and said "You know what this is." He took the quarter gram of coke and about eighty or ninety dollars. Then Hasaan got on his bike and rode off.
The statement then describes in detail how defendant arranged for Lytle's murder. The day after the robbery he met Sylvester Johnson (Sylvester) in the Bronx and told him of the robbery. He had first met Sylvester three months earlier "in the Lincoln Correctional Center on 110th Street and Central
Park, in New York City." Defendant gave Sylvester a .32 caliber revolver with which Sylvester agreed to kill Lytle. "I told him that Hasaan was on 14th Street riding his bike." Two or three days later Sylvester reported to defendant that he had met Lytle
on 14th Street, near Jack's Tavern. They hugged each other and talked, then he shot him 3 times and when he fell he shot him three more times.
Detective Miller testified that he and Sergeant Whitner verified defendant's story by having him identify a picture of Sylvester.
And we called Records and had a record check made of Sylvester Johnson and Records gave us a gallery number. And we called down to our Photo Room and had them make up a picture of Sylvester Johnson.
And when they were ready they let us know and Detective Whiten went down to the Photo Room and got the picture and brought it back up.
The detectives also obtained five photographs of other men and marked each with an identification number. They then placed the six photographs before defendant and asked him to pick out the photograph of Sylvester and state its identification number. Defendant selected the correct photograph. His statement describes this procedure and includes his identification of Sylvester's photograph by number. All six photographs were admitted into evidence.
On cross-examination Detective Miller gave untrue testimony about when he and Sergeant Whitner removed defendant from his cell and about how long they had questioned him before defendant gave his written statement. When he testified Detective Miller obviously had forgotten that the cell-block log sheet showed that he and Sergeant Whitner had removed defendant from his cell at 10:05 a.m. The critical testimony follows:
Q. You brought this man over to the squad. What time did you bring him over?
A. Just prior to me giving him the Miranda.
Q. What is the time indicated on your Miranda?
Q. What time is indicated on your Miranda?
Q. Now at that time how much before 12:30 which is the time you started, I would assume you started to read this Miranda to him?
A. When we came in we gave him his Miranda.
Q. That is the very first thing you did was read him this?
Q. That was 12:30, right?
Q. And he signed it at 12:39. Is that correct?
Q. And you are saying that that statement according to what has been marked started at 12:0?
Q. Then you are telling this Court that you had not discussed this case with Mr. Johnson prior to reading the Miranda Rights to him. Is that correct?
Q. And you only discussed this case with him after reading him his Miranda Rights which ended at 12:39?
Q. And the statement commenced at 12:50. So that meant there was only eleven minutes, is that right, that you had to talk to Hubert Johnson?
Q. And that during the course of those eleven minutes, you were able to relate to him the fact that all this information is out on the street, and that he is a suspect, and that the information out on the street that you had him hit and that there are people out there who are saying that the reason it happened is because there was a drug ripoff or a robbery of some sort where you were the victim, and that is why you had Litel hit, am I right?
Q. And you are saying that you had enough time to get questions and answers of Hubert Johnson to formulate enough information to reduce it into a typed statement?
Q. All that took place in eleven minutes?
Q. And you told him that he was being investigated for a murder, right?
Q. And all he said to you was I don't know nothing about it and you are telling us that in less than eleven minutes of this little bit of interrogation, all of a sudden here is a guy who was in jail for just a drug case and is now suddenly confessing to being involved in a murder?
Q. Isn't it a fact, Officer, that you brought Mr. Johnson over to the cell -- brought Mr. Johnson over [from] the cell block much earlier that day?
Q. It is not? Do you have the log sheets when you signed him out ...