Gaulkin, Dreier and Scalera. The opinion of the court was delivered by Scalera, J.A.D.
[237 NJSuper Page 409] Defendant was indicted for seven counts of felony murder in violation of N.J.S.A. 2C:11-3a(3), and one count of aggravated arson in violation of 2C:17-1a(1) & (2). A jury acquitted him of the felony murders and aggravated arson, but convicted him of seven counts of the lesser-included offenses of manslaughter (N.J.S.A. 2C:11-4b.(2)) and one count of arson (N.J.S.A. 2C:17-1b). He was sentenced to consecutive ten-year terms of imprisonment with five-year periods of parole ineligibility on three of the second-degree manslaughter convictions, concurrent ten-year terms with five-year periods of parole ineligibility on the four remaining manslaughter convictions, and a four-year concurrent term on the third-degree arson. The resultant aggregate sentence was thirty years of imprisonment with a fifteen year parole ineligibility period. In addition, a total Violent Crimes Compensation Board penalty of $17,525 was imposed. Defendant's post-trial motion to merge the seven manslaughter convictions in accordance with State v. Mills, 51 N.J. 277 (1968), cert. den., 393 U.S. 832, 89 S. Ct. 105, 21 L. Ed. 2d 104 (1968), was denied.
The operative facts are relatively undisputed. Around 1:20 on the morning of May 22, 1985 a fire destroyed a three-story apartment building in Englewood, killing seven people. Although defendant initially denied any involvement, he ultimately confessed to starting the fire to attract the attention of his girlfriend who lived there and who had announced her intention to terminate their relationship.
The investigation which led to defendant's arrest was headed by Robert Kops, an arson investigator with the Bergen County Prosecutor's office, with the assistance of Walter Vreeland, a member of the prosecutor's office Homicide Squad, and Detective Ernest Cunningham of the Englewood Police Department.
The decision to interview defendant came about as a result of statements made by one Marlon Rollins, who had recently renewed a previous relationship with defendant's girlfriend. Defendant, who was eighteen years old, lived at his grandfather's house about a mile from the scene of the fire. Kops and Cunningham arrived at defendant's home at about 7:45 a.m., at which time they still did not know whether the fire had been intentionally set. Defendant was informed that there had been a fire and agreed to accompany the officers to Police Headquarters to be interviewed. He was not handcuffed and was not given any Miranda*fn1 warnings because the police did not know whether any arson had occurred. During the initial interview at headquarters, defendant was not under arrest and the door to the room was open. Also, at no time during this interview did defendant request to see an attorney or ask for anything to eat or drink. He appeared to be alert and coherent.
Defendant then described to the police his relationship with his girlfriend, Linda Hyman, and recounted his activities on the day before the fire. During this interview Kops did not ask defendant whether he had started the fire because the police were merely gathering information. Defendant and the other
persons being interviewed eventually agreed to go to the prosecutor's office to give statements that could be stenographically transcribed. Around 10:15 a.m., Kops was standing outside of the arson room in the prosecutor's office when one of the persons being interviewed, Earl Bryant, asked for directions to the men's room. On the way, Bryant stopped to talk to defendant. Kops overheard parts of their conversation in which Bryant mentioned the phrase, "Molotov cocktail." At this time, Kops concluded that the fire had been intentionally started but he did not know how or by whom. He immediately went over and told both men to terminate their conversation. He then asked defendant to accompany him into the arson unit room, where he advised defendant of his Miranda rights. After receiving those warnings, defendant voluntarily made another statement which was still essentially exculpatory.
Finally, defendant agreed to submit to a polygraph examination. Two such tests were administered to defendant during which he gave misleading statements in critical areas. When confronted with this, he finally admitted that he had started the fire by lighting a brown paper bag on the porch of the residence. Kops and Vreeland then informed defendant that he was going to be charged with arson and seven counts of murder. He was again advised of his Miranda rights after which he gave a formal confession in the presence of a court stenographer.
The trial judge conducted a pretrial Evid.R. 8 hearing pursuant to defendant's motion to suppress his inculpatory statements. Defendant's testimony suggested that he gave the inculpatory statements only because of police coercion occasioned by his forced presence at headquarters. In a thorough oral opinion, the trial judge found as a fact that defendant was not subjected to any custodial interrogation until after Kops overheard the brief conversation between defendant and Bryant, with its reference to a Molotov cocktail. The judge further found that defendant never asked for an attorney or invoked his right to remain silent and that the inculpatory
statements were made by defendant "to the investigating officers after he was advised of his Miranda rights [and] were voluntary and admissible."
At trial, defendant admitted to setting the fire but explained that he did so only because he was extremely upset. His girlfriend had told him that she was having intimate relations with Rollins and that, if the baby she was going to have were Rollins' she would have it, but if it were defendant's she would have an abortion. Defendant also produced the testimony of a psychiatrist, who testified that defendant had long been emotionally disturbed and that, in his opinion, defendant had acted impulsively and showed "poor judgment" in setting the fire. Judging from its manslaughter rather than murder convictions, the jury apparently accepted that explanation.
On this appeal defendant argues three issues:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS ALL DEFENDANT'S ...