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Scott D. Leibling, P.C. v. Mellon PSFS (NJ) Nat. Ass'n

January 27, 1998

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
WILLIAM DAVID JONES, DEFENDANT-RESPONDENT.



Argued December 10, 1997

Before Judges Shebell, D'Annunzio and Coburn. On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

The opinion of the court was delivered by: D'annunzio, J.A.D.

Pursuant to leave granted, the State appeals from pre-trial orders entered on August 5, 1997 in this capital murder prosecution under Bergen County Indictment No. S-1452-95. The orders (1) denied the State's application to permit it to use for impeachment purposes certain of defendant's statements to Officer Ziegler; (2) suppressed certain writings seized at defendant's home pursuant to a search warrant; and (3) ordered the prosecutor to examine the personnel files of its law enforcement witnesses "for material relevant to credibility and to disclose information relevant to credibility to the defense."

We also granted the State leave to appeal from an August 6 order barring the deputy medical examiner from "offering at trial the opinions set forth in a supplemental report" and ordering that, in the event "the Appellate Division this court's ruling . . . concerning the opinions set forth in [the medical examiner's] supplemental report, there shall be separate guilt and penalty phase juries empaneled in this matter."

Defendant William Jones is an African-American male, born in September 1973, who lived in Leonia, New Jersey. On July 19, 1995, Sergeant O'Meara of the Leonia Police Department was outside police headquarters when Jones approached him. O'Meara knew Jones and Jones' mother because of their involvement in community sports programs. As Jones approached, O'Meara noticed that Jones was distraught, pale and "shaken up." As O'Meara began to greet defendant, defendant said, "There's been a murder here." O'Meara asked where and defendant said "168 Spring Street." O'Meara then asked defendant whether he was okay and defendant stated, "You don't understand, I'm the bad guy here." As a result of this exchange, O'Meara told Jones to "Stop right there." O'Meara then used a portable communication device and called the dispatcher located in the police headquarters. He told the dispatcher to send Detective Ziegler outside. Ziegler emerged from the building, and O'Meara told him that "We may have a murder here."

As O'Meara, Ziegler and Jones walked into the police building, O'Meara asked whether an ambulance was needed. Defendant said, "No, I'm pretty sure she's dead." Then defendant said, "You'd better send the paramedics." O'Meara told the communication's officer to dispatch the paramedics to 168 Spring Street. O'Meara knew that to be defendant's home address. O'Meara and another officer then left to go to the scene, leaving only defendant, Ziegler and the communication's officer at headquarters. O'Meara testified that defendant was not under arrest and he was not handcuffed when O'Meara left police headquarters to go to defendant's home. O'Meara further testified that he did not interpret defendant's statement that he was the "bad guy" as an admission of criminal involvement.

Officer Ziegler testified that he did not know Jones. When O'Meara told Ziegler that defendant wanted to tell the police about a murder, Ziegler gave it no credibility because the Leonia police frequently received unfounded information from juveniles about alleged crimes. However, when Ziegler noticed that defendant was pale and shaking, Ziegler then believed that defendant may have been a witness to a crime. O'Meara had not told Ziegler about defendant's statement that he was the "bad guy."

Ziegler and defendant then had the following conversation:

Ziegler: "Are you sure that she's dead?"

Defendant: "Yes."

Ziegler: "Well how do you know that she's dead?"

Defendant: "I checked."

Ziegler: "How did you check?"

Defendant: "I checked her breathing."

During this conversation, defendant, on overhearing a radio communication, said: "Tell them that the front door is open and that the body is in the basement." Ziegler then asked defendant whether anyone else was in the house and defendant replied "no." Ziegler asked defendant whether the victim was defendant's mother and defendant said "no." Ziegler asked whether she was defendant's girlfriend and defendant said, "No, she's just a friend." Ziegler testified that he perceived some reluctance on defendant's part to answer those questions. Ziegler then testified:

I didn't know at this point whether I was dealing with a witness now or whether I was dealing with someone who may have had some involvement, and needing to determine one way or the other, I asked him, "I'm starting to get the impression that you had something to do with this, is that true?"

And at that point he sighed very heavily looked down into his lap, nodded to me in the affirmative. He looked back up and he said, "All the evidence you need is in the basement."

In response, Ziegler said, "Do you understand at this point that you are under arrest?" Defendant replied, "Yes, I know." Ziegler then handcuffed Jones to a chair and advised him of his Miranda *fn1 rights. Defendant stated, "I'd better get an attorney," and Ziegler terminated the interview.

Sergeant O'Meara and other police officers arrived at 168 Spring Street at approximately 5:15 p.m. Having been informed by Ziegler that defendant said that the evidence was in the basement, O'Meara entered the empty house and made his way to the cellar. At the bottom of the basement stairway, O'Meara saw a large puddle of blood, a blood-soaked towel and sheet and organic matter on the floor. According to O'Meara, the ceiling, walls and furniture were covered with spattered blood. O'Meara also observed a pitchfork and a pruning-type saw blade on the floor as well as a blood-covered metal baseball bat near the stairway.

O'Meara followed a trail of blood leading to another basement room where he observed a woman lying on her back on the floor, face up with a plastic garbage bag over her head. The woman was lying in a large pool of blood and her clothing was bunched up around her chest. She was naked from the upper abdomen to her ankles, socks and sneakers. Her underpants were hanging off her upper left thigh. O'Meara secured the scene and notified the prosecutor's office and the medical examiner. The medical examiner, Maryann Clayton, M.D., arrived at the scene and pronounced the victim dead. The victim was eventually identified as A.K., age twenty-one.

Defendant's Statements

Before we discuss the circumstances regarding the issuance and execution of the search warrant, we address the potential use of certain of defendant's statements to Ziegler in the event defendant testifies at trial. In a forty-five page written opinion, the trial court addressed a number of issues, including the admissibility of defendant's statements to O'Meara and Ziegler. The court determined that Miranda was not applicable to defendant's statements made to O'Meara on the street because defendant was not then in custody. The court ruled that custody began when defendant was escorted into the police headquarters, and that questions asked thereafter, constituted custodial interrogation requiring Miranda warnings. The court, however, relying on People v. Modesto, 398 P. 2d 753 (Cal. 1965); People v. Dean, 114 Cal. Rptr. 555 (Ct. App. 1974); and People v. Willis, 163 Cal. Rptr. 718 (Ct. App.), cert. denied, 449 U.S. 877, 101 S. Ct. 222, 66 L. Ed. 2d 99 (1980), applied the so-called "rescue doctrine" and held that statements made in the police department relating to defendant's checking of the victim's breathing and defendant's certainty that the victim was dead were admissible despite the absence of Miranda warnings. The court also ruled that Ziegler's asking whether anyone else was in the house also fell within this group and was, therefore, admissible because "Ziegler was most likely attempting to learn whether or not a third party had also been injured in the course of events that led to the reported death of the victim."

Due to the Miranda violation, the court, in its August 5 order, ruled inadmissible defendant's statement that "all the evidence you need is in the basement" as well as defendant's affirmative nod in response to the question "I'm starting to get the impression you are involved in this, is this true?" The court determined that defendant's statement, "Tell them that the front door is open and that the body is in the basement," was admissible because it was a volunteered statement and not the result of an interrogation.

The State did not seek leave to appeal from the trial court's determinations regarding the applicability of Miranda to certain of the questions posed to defendant in the police station. The State does challenge, and we granted leave to appeal from, the court's determination that defendant's affirmative nod to Ziegler's question as to whether defendant was involved and defendant's statement that "all the evidence you need is in the basement" were involuntary and, therefore, may not be used by the State for impeachment purposes at trial if defendant testifies. The court's determination in this regard was not made in its written opinion but rather in an oral opinion on July 22, 1997, after it had filed its written opinion. It appears from its oral opinion that the court deemed the nod and final statement as involuntary because it was satisfied that "it dawned on Officer Ziegler in advance in that he was now interrogating him for evidence to use against him."

On August 5, 1997, the trial court orally supplemented its rationale, stating:

I thought that he had intimidated this witness somewhat. I found that he was not candid. It was somewhat self-serving. I clearly said it was not a voluntary and freely given statement by virtue of those statements. He was in custody, I said. I also found that the statements were not voluntary and not only because he was in custody but because he kept asking him additional questions, the detective, and I did not find the rationale he used was sufficient for the rescue. . . . That's why, because it was a searching question, he was probing, it was only going -- he was looking for additional information to inculpate the defendant. So it was not freely and voluntarily given.

A statement by a defendant taken without Miranda warnings or in violation of the Fifth Amendment, nevertheless, may be used to impeach defendant's testimony at trial. See Oregon v. Hass, 420 U.S. 714, 723, 95 S. Ct. 1215, 1223, 43 L. Ed. 2d 570, 578 (1975) (holding that defendant's statement, made after he had invoked right to counsel, was admissible to impeach defendant's testimony at trial, though not admissible on State's direct case); Harris v. New York, 401 U.S. 222, 226, 91 S. Ct. 643, 646, 28 L. Ed. 2d 1, 5 (1971) (ruling that statement made without Miranda warning was admissible to impeach defendant's trial testimony); State v. Burris, 145 N.J. 509, 529 (1996) (holding that defendant's statement given after violations of his Fifth Amendment rights and New Jersey's right against self-incrimination was admissible for impeachment purposes).

To be admissible for impeachment purposes, however, the statement must be trustworthy. Burris, supra, 145 N.J. at 534. "Trustworthiness entails an examination of the voluntariness of the statement. Voluntariness, in turn, depends on whether the suspect's will was overborne and whether the confession was the product of a rational intellect and a free will." Ibid. "The State must prove the voluntariness of a confession beyond a reasonable doubt." State v. Galloway, 133 N.J. 631, 654 (1993).

Although the trial court's rationale is not entirely clear, the court apparently based its determination that defendant's last two statements were involuntary primarily on its finding that Ziegler had violated Miranda and had asked "probing" questions seeking to inculpate defendant. That, of course, is not the test. The test is whether a defendant's statement is

the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.

[Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973) (citation omitted)].

Relevant factors in determining voluntariness are the length of defendant's detention, the characteristics of the interrogation, whether defendant was advised of his constitutional rights, defendant's age and intelligence, and whether defendant endured physical punishment or mental exhaustion. Id. at 226; see also Galloway, supra, 133 N.J. at 654. Defendant did not testify at the hearings below and the testimony of O'Meara and Ziegler was uncontradicted. Cf. Miller v. Fenton, 474 U.S. 104, 110, 106 S. Ct. 445, 449, 88 L. Ed. 2d 405, 411 (1985) (holding that the issue of "voluntariness" of a confession "is a legal question requiring independent federal determination."); State v. Contursi, 44 N.J. 422, 428 (1965) (where facts are established the determination of probable cause involves only the application of law).

Applying these principles, it has been held that a one-hour interrogation during which the police used psychological tactics, implied promises of mental health treatment, and deception, did not render a murder confession involuntary. Miller v. Fenton, 796 F.2d 598, 612-13 (3rd Cir. 1986). State v. Galloway, supra, involved the death of a three-month old child from child abuse. After several hours of interrogation at the police station by two detectives, defendant repudiated his first exculpatory statement and gave an inculpatory statement. Defendant's confession resulted, in part, from a detective's statement that the doctors had to know how the baby had been injured to treat him. The Court characterized this tactic "as a deliberate act of deception to secure a confession." 133 N.J. at 653. In upholding the voluntariness of the confession, the Court stated that "use of a psychologically-oriented technique during questioning is not inherently coercive," id. at 654, and observed that "ases holding that police conduct had overborne the will of the defendant have typically required a showing of very substantial psychological pressure on the defendant." Id. at 656 (citations omitted). See also Burris, supra, 145 N.J. at 536-39 (holding that statement made during six-hour interrogation not the product of overborne will); State v. Bey, 112 N.J. 123, 134-35 (1988) (ruling that confession made as the result of three hours of interrogation during nine hours of custody was not involuntary).

In the present case, we begin with the fact that defendant approached the police, who at the time were unaware of the murder. Defendant volunteered information to O'Meara regarding the crime, including the information that he was "the bad guy." All the statements defendant made to O'Meara and Ziegler were made within ten minutes of defendant's approaching O'Meara. Defendant was not handcuffed or physically restrained in any way. There was no evidence that the police used physical or mental abuse, or engaged in a well-planned, well- orchestrated interrogation. To the contrary, the police were caught by surprise and were obviously improvising in an attempt to determine whether a crime had been committed, the nature of the crime, the identity of the victim, whether there were other victims or persons at risk, and defendant's role and the source of his knowledge.

With the exception of the absence of Miranda warnings, found by the trial court to have been required, the record indicates that the police behaved impeccably. As soon as Ziegler had probable cause to believe that defendant was criminally involved, Ziegler advised defendant of his Miranda rights and honored defendant's request for a lawyer by concluding the interview.

In Galloway, supra, the Court, in analyzing the voluntariness issue, stated that "he real issue is whether the person's decision to confess results from a change of mind rather than from an overbearing of the suspect's will." 133 N.J. at 655. In the present case, Jones approached the police to report the crime and to confess his guilt. There is no evidence in the record to support the trial court's conclusion regarding voluntariness. Accordingly, the court's ruling that defendant's statements were involuntary is reversed.

The Search Warrant

On July 20, 1995, at 1:00 a.m., approximately eight hours after the police found A.K.'s body, Senior Investigator Frank Kelleher of the Bergen County Prosecutor's Office filed a written application for a warrant to search defendant's home at 168 Spring Street. The application recited the conversations among defendant, Sergeant O'Meara and Detective Ziegler, with the exception of defendant's statement that the victim was his friend, and described finding the victim's body in the basement. The application then provided the issuing Judge with the following information:

The partially nude body of the white female was lying face up, in the western room of the basement, near the boiler. The head was covered with a grey, plastic garbage bag. The victim had on a dark blue T-shirt and a light blue colored shirt, which was pushed up just beneath the breast area. The victim was nude from the waist down, a ripped pair of pink underwear was draped around her left thigh, exposing her vaginal area, indicating that she also may have been a victim of an aggravated sexual assault. The victim was wearing blue socks and white sneakers.

Dr. Clayton pronounced the victim dead at approximately 7:02 p.m., on July 19, 1995. Preliminary observations of the victim indicated numerous puncture wounds to the head, neck and facial areas, and blunt ...


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