On appeal from the Superior Court, Law Division, Gloucester County.
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Stein, J. Handler, J., concurring in part and dissenting in part.
Defendant was tried and convicted of two counts of knowing and purposeful murder, N.J.S.A. 2C:11-3a(1) and (2); robbery in the first degree, N.J.S.A. 2C:15-1; theft of property, N.J.S.A. 2C:20-3; two counts of possession of a dangerous weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and unlawful possession of a weapon, N.J.S.A. 2C:29-5b. After a separate sentencing proceeding on the murder charges, N.J.S.A. 2C:11-3c(1), defendant was sentenced to death for one of the murders, to a life sentence with thirty years of parole ineligibility for the second murder, plus consecutive sentences totaling thirty-five years with seventeen-and-one-half years of parole ineligibility on the remaining counts.
The State concedes that the death sentence in this case cannot be sustained because the trial court erroneously instructed the jury in the penalty phase that it must find mitigating
factors unanimously. See State v. Bey (Bey II), 112 N.J. 123, 156-61, 548 A.2d 887 (1988). We also reverse defendant's convictions on federal-constitutional and state-law grounds that are unrelated to the capital-punishment act (L. 1982, c. 111) (the Act) or to the case law construing the Act. See, e.g., State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987); State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987). We hold that the trial court committed reversible error admitting defendant's confession into evidence because the detectives who interrogated him did not scrupulously honor defendant's right to remain silent. See Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). Notwithstanding substantial independent evidence of defendant's guilt, we are unable to conclude that the error was harmless. Because the confession as well as other illegally-coerced statements had a clear capacity to affect the outcome of the trial, we reverse the murder convictions as well as the convictions on the robbery, theft, and weapons charges and remand the matter for retrial.
On April 30, 1984, Susan Sayer of Pitman received a call from the secretary of the Sewell School. Alice Sharp, a teacher at the school and Mrs. Sayer's neighbor, had not reported for work. The secretary had called the Sharp house, but no one had answered. She asked Mrs. Sayer to check on Mrs. Sharp.
Mrs. Sayer went next door to the Sharps' home. She found the Sharps' cellar and back doors unlocked. When no one answered her calls, she entered the house. Beyond the dining room, in the center hall, she found the bodies of Bruce and Alice Sharp.
Police Officer Bates and Captain McHenry of the Pitman Police Department responded to Mrs. Sayer's telephone call. They ascertained that the Sharps were dead, noted a broken vase and a fireplace poker lying near the bodies, discovered no
signs of forced entry, and found that the upstairs bedroom had been ransacked. They informed the prosecutor's office.
Later that day, the police interviewed Tom Herrara, who told them that on the previous day, he had cut the grass at the Sloans' house across the street from the Sharps'. Part of his job was to dump the Sloans' grass clippings into the Sharps' compost heap. He told investigators that while wheeling his cart full of clippings up the Sharps' driveway, he had encountered a man. They exchanged no words. After first running to some bushes, the man retrieved a dirty gray bicycle with an orange sticker on it and rode away. According to Herrara, the man had big eyes and long "scraggily" hair and wore boots.
On May 1st, Paul Godman, an officer in the Pitman Police Department, received a call from his nephew, Carmen Cattafi. Cattafi had read about the murders in the newspaper, and told his uncle that he knew something about them but was afraid to get involved. Godman set up a meeting between Cattafi and detectives from the Pitman Police Department and the Gloucester County Prosecutor's Office.
According to Cattafi, he, defendant, and another acquaintance, Gerald Smith, had spent a couple of hours on the day of the murders drinking wine at Smith's house in Glassboro. At approximately 1:00 p.m., defendant borrowed Cattafi's gray bicycle, saying that he had to get some things that he had "stashed."
Perhaps two hours later, Smith and Cattafi encountered defendant on the streets of Glassboro. Smith and Cattafi were driving in Smith's car to Smith's girlfriend's house. Defendant was riding the bicycle back towards Smith's house. Cattafi noticed that defendant was splattered with blood. Smith stopped the car and Cattafi talked with defendant, who suggested that they go to Camden. Among these friends, "going to Camden" was a euphemism for buying drugs.
The threesome headed back to Smith's house, where defendant washed some of the blood from his face and arms with a
garden hose. He disjointedly explained that he had killed one or more people. Cattafi, skeptical of defendant's assertions, thought it equally likely that defendant himself had been the victim of a beating, and that the blood was his own. After "ditching" the bicycle and washing up, defendant, along with Smith and Cattafi, drove to Camden to buy heroin.
During the car ride, defendant told his friends more about the murders. He explained in some detail how he had shot a man and bludgeoned the man's wife to death. Cattafi remained skeptical because he believed defendant to be an untruthful person. Defendant then showed Cattafi some jewelry and cash that he had obtained during the crime. Both the jewelry and the cash were stained with blood.
When they reached Camden, defendant bought heroin for himself and for his friends, and they injected themselves with the heroin. Thereafter, they stopped at Pennsauken Mart, where defendant bought a pair of jeans to replace the bloody ones that he was wearing. He threw the bloody pants out the car window.
Armed with Cattafi's statement, the police prepared to arrest defendant. An attempt to locate defendant in the Camden area, where he had been known to purchase drugs, proved fruitless. In the late evening of May 1, 1984, however, the police located defendant at his parents' home in Glassboro. The police surrounded the house. Defendant's brother, a member of the Pitman police force, went into the house and brought defendant out. At 1:47 a.m. on May 2nd, the police arrested defendant, frisked him, and put him into a waiting police car. Detective Wechter read defendant his Miranda rights, then drove him to the Pitman police station.
At the station police officers escorted defendant to an interview room. Detective Reeves arrived to conduct the interview. Detective Wechter readvised defendant of his rights. Defendant signed a form acknowledging that he understood his rights and also signed a waiver at the bottom of the form.
Detectives Wechter and Reeves witnessed the signatures. Detective Wechter then left the room and another detective, Donovan, arrived. During the ensuing interview, which commenced at about 2:00 a.m., Lieutenant Reeves asked most of the questions and Detective Donovan took notes.
According to the detectives' pretrial testimony, in the early stages of the interrogation defendant displayed an easygoing confidence. When asked about his activities on the day of the murders, defendant replied that he had spent the day at a local tavern, drinking beer with friends. When Reeves asked for the names of those friends, however, defendant refused, saying he did not want to involve them in the investigation. Reeves assured defendant of the importance of supplying the names, implying that a credible explanation of his whereabouts would allay suspicion of defendant's involvement in the murders. Reeves suggested that defendant supply the name of the bartender who had served them at the local tavern, but defendant refused. The investigators found his story unsatisfactory. Defendant offered an alternative alibi. He suggested that he had spent the better part of the day driving around with friends. Pressed for details, defendant proved equally reluctant to supply the names of his friends or their itinerary. At the end of approximately forty minutes of questioning, the detectives continued to believe that they had not received an adequate or truthful explanation of defendant's activities on the day of the murders. Defendant maintained his confident, easygoing demeanor.
Several things occurred at about 2:40 a.m. that changed the tenor of the interrogation, although the record does not make clear the order of their occurrence. The detectives asked defendant if he would consent to give exemplars of his hair, blood, and saliva. He consented. They also asked if he would consent to a search of his parents' home. Defendant declined, saying that he had no authority to consent to the search. Reeves persisted, explaining that they wanted defendant's permission to search only those portions of the house under
defendant's control, especially his room. Still, defendant refused to give his permission.
During the same period, defendant asked the detectives why his friend Gerald Smith's car was in the police department parking lot. Reeves explained that Smith had given the police information about the crime. Reeves showed defendant the complaint naming him as a suspect in the murders, and told him that the police would not have been able to obtain the signed complaint if they had not had enough evidence to prove the case. At that point, defendant's demeanor changed. Whereas he had previously appeared almost jaunty -- arms folded behind his head, leaning back in his chair -- he now bowed his head and would not look directly at the detectives.
Over the next hour and one-half, Detective Reeves persistently pressed defendant for a confession. He asked whether defendant felt remorse and whether defendant understood what other people would think of him for having committed the murders. Because no accurate record of the interrogation is available, it is impossible to determine exactly what was said during the period between approximately 2:40 a.m. and 4:00 a.m. Both detectives testified, however, that defendant had repeatedly answered Reeves's questions with prolonged silences and by saying either that he could not talk about the murders or that he did not want to talk about them. Breaks were taken several times during that period, and the authorities provided defendant with beverages and cigarettes. After each break, the questioning resumed. Finally, at approximately 4:00 a.m., in response to Detective Reeves's inquiry whether Mrs. Sharp was still alive when he fled the scene of the crime, defendant responded affirmatively. Next, Detective Reeves asked if defendant had talked to the Sharps before the crime and defendant responded that he had. Detective Reeves then asked defendant to tell them in his own words what had happened, and defendant began to confess, narrating the events of the murder, filling in details when they were requested by
the detectives. At trial Detective Donovan recounted the substance of defendant's oral confession:
[H]e approached the house and saw the Sharps working in the front yard. He identified himself and asked if they remembered him working on the house before. Mr. Sharp said he did remember him.
They had a brief discussion whether they liked the job done at the house. The Sharps said they did. At that time Mr. Johnson told Mr. Sharp his car had broken down. He wanted to use a telephone to call for a tow truck. He was allowed to go in the house, [and] use the phone.
Mr. Sharp and Mr. Johnson had a conversation about tools. At one point they went down into the basement of the house, where Mr. Sharp showed Mr. Johnson an antique saw he had in the basement.
Mr. Sharp then went back outside and Mr. Johnson then went to the upstairs bedroom and stole some jewelry from the bedroom. Mrs. Sharp caught him as he was going down the stairs and started to holler for her husband for help.
At that point Mr. Johnson picked up a vase, a ceramic vase from the foyer area and struck her a few times with it.
At that point Mr. Sharp came in, asked Mr. Johnson what he was doing, at which point he pulled out a handgun and told Mr. Sharp to lay on the floor.
He then pulled the trigger on the gun. The gun misfired. He then pulled the slide back, chambered another round and fired into Mr. Sharp's head.
Then he tried to shoot Mrs. Sharp. The gun would not operate. He was also out of bullets, so then Mrs. Sharp was trying to get to the front door, so he grabbed a fireplace poker and struck her several times with the fireplace poker.
He then left the scene on a bicycle and went to the back yard and got a bicycle and left the scene on the bicycle.
He then told us that he went to a friend of his house, who drove him to Pennsauken where he got rid of his clothes. They went to Camden and bought three bags of dope, shot up and went back to Glassboro.
One of the detectives asked what defendant had done with the gun. Defendant revealed that he had hidden it under his mattress. The detectives renewed their request for permission to search his room, and this time defendant signed a consent form. Thereafter, defendant repeated his confession into a tape recorder. When he had finished, he signed the cassette tape, and the interrogation ended.
Pursuant to the consent he had signed, police searched defendant's room. They found a gun under his mattress and jewelry in a dresser drawer.
After a trial, at which defendant's confession figured prominently, a jury found him guilty of two counts of knowing and
purposeful murder, as well as robbery, theft, and weapons charges.
In the penalty phase of the trial, the jury found three aggravating factors: (1) the offense was committed while the defendant was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, N.J.S.A. 2C:11-3c(4)(g); (2) the murder was committed for the purpose of escaping detection, apprehension, trial, punishment, or confinement for another offense committed by the defendant or another, N.J.S.A. 2C:11-3c(4)(f); and (3) the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim, N.J.S.A. 2C:11-3c(4)(c). The jury also considered but did not find as a fourth aggravating factor that in the commission of the murder, the defendant purposely or knowingly created a grave risk of death to another person in addition to the victim, N.J.S.A. 2C:11-3c(4)(b).
Although the jury found the same aggravating factors in both murders, the result of its deliberations concerning mitigating factors for each murder differed. With respect to the murder of Bruce Sharp, the jury found only that there were "relevant factors" in mitigation. N.J.S.A. 2C:11-3c(5)(h). Regarding the murder of Alice Sharp, however, the jury found one additional mitigating factor -- the influence of extreme emotional disturbance insufficient to constitute a defense to prosecution. N.J.S.A. 2C:11-3c(5)(a). The jury also weighed the aggravating and mitigating factors differently in each case. In the murder of Bruce Sharp, the jury unanimously found that the aggravating factors did not outweigh the mitigating factors beyond a reasonable doubt. In the murder of Alice Sharp, however, the jury unanimously found that the aggravating factors did outweigh the mitigating factors beyond a reasonable doubt. Accordingly, defendant was sentenced to death for the murder of Alice Sharp, and to a term of life imprisonment with thirty years of parole ineligibility for the murder of Bruce
Sharp. He appeals his convictions on all charges to this Court as of right. R. 2:2-1(a)(3).
At a pretrial hearing, defendant challenged the admissibility of his oral and taped confessions, contending that they had been obtained in violation of his right to remain silent and that his waiver of that right had been involuntary. The trial court ruled defendant's confession admissible. Defendant renews his arguments on appeal. We find that defendant's right to remain silent was not "scrupulously honored," as required by Michigan v. Mosley, supra, 423 U.S. at 103, 96 S. Ct. at 326, 46 L. Ed. 2d at 321. Accordingly, the resultant confession was inadmissible.
After his arrest at 1:47 a.m., defendant was taken to the Pitman police station. Detectives Reeves and Donovan began interrogating defendant at approximately 2:00 a.m. At the Miranda hearing, both detectives testified that the crucial period in the interrogation was between 2:40 a.m. and 4:00 a.m. At 2:40 a.m., defendant learned of the charges against him, lost his easygoing confidence, and took on a sullen demeanor. At about 4:00 a.m., he began to confess.
Detective Donovan testified that the crucial one-hour-and-twenty-minute segment of the interrogation had not been taperecorded. The only record of that time period was Donovan's subsequent report, prepared from interview notes that were not retained. Donovan's testimony revealed the following:
Q. Tell us as best you can what took place, how the conversation was going between you, what you were doing, what the defendant was doing.
A. Basically, Detective Reeves was stating some facts about the case to Mr. Johnson, at which time he became quiet saying he couldn't talk about -- kept saying I can't talk about it right now.
Q. Did you have any instances with him on that night where his responses were, in fact, not responsive to the question or the area of questioning?
A. Just when he said he couldn't talk about it. He would hang his head and say he couldn't talk about it when Detective Reeves would ask him specific questions about the murders.
Q. Now, as the time you're with him progressed, did Walter Johnson's behavior change in any way?
A. He became quieter, started hanging his head, just saying -- repeating over and over he couldn't talk about it. I just can't talk about it.
Q. Did he explain anything about that any more than those words, "I can't talk about it."
Q. Between when the documents to search for personal exemplars was filled out [2:40] and 4:00 o'clock when Mr. Johnson allegedly made a statement to you, what took place between the three of you?
A. Just additional questions by myself, Detective Reeves about the murders.
Q. How was Walter Johnson responding to that questioning?
A. He just kept saying, I can't talk about it, can't talk about it.
Q. How was he behaving during that time period, if you could characterize?
A. Became very quiet, had his elbows on his legs and his head was staring at the floor for most of the time.
Q. Were any particular statements made by yourself and Detective Reeves to try to get Mr. Johnson to speak during that particular time period?
A. Just asking him questions, yes.
Q. What question, if any, if you know, was it that finally received a response from Walter Johnson?
A. I believe Detective Reeves asked him if Mrs. Sharp was still alive when he left. He shook his head yes.
And I think the second question that he raised his head up and actually answered yes was he asked if he had talked to them outside in the yard.
Q. He answered yes to that?
A. He answered yes. Then he started telling us what had happened. (Emphasis added.)
Donovan maintained that defendant had not requested the assistance of an attorney or that the interview cease. Nevertheless, his testimony reveals that defendant had continually refused to answer questions about the murders for almost an hour and a half:
Q. Now, directing your attention to the time period from 2:40 to 4:00 o'clock in the morning, after he had refused the second time to sign the permission to search his room, you go on to state [in the written report] at about the fifth full paragraph down,
"We then started questioning him in reference to the murders, at which time he started staring at the floor and became very quiet."
That's a correct recitation of that sentence?
Q. So you're asking him about -- you were asking him about ...