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State of New Jersey v. George J. Carty

December 23, 2010

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
GEORGE J. CARTY, III, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-10-00814.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 3, 2010

Before Judges Carchman and Waugh.

By leave granted, the State appeals the suppression of certain statements made by defendant George J. Carty, III, during a police interrogation that took place in the State of West Virginia. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

A.

On July 27, 1982, the body of John Attenborough was discovered on an unpaved roadway in a partially completed residential development in Lower Township, New Jersey. Carty, who had been Attenborough's co-worker and "drinking buddy," was considered a potential suspect at the time. Carty was interviewed and gave a statement to the police that is not contained in the record.

In the statement, Carty informed the police that, approximately a month before his death, Attenborough tried to initiate a consensual sexual encounter with him. According to Carty, he refused Attenborough's advances and the encounter ended peacefully.

The police asked Carty to undergo a polygraph test. Although he initially agreed, Carty later declined because of his concerns about the test's accuracy and false positives. The investigation continued, but no indictments or charges followed.

In late 2006, the Cape May Prosecutor's Office assigned Detective Edward W. Musick and Agent Francis P. Majane to reopen the investigation of Attenborough's death. They decided to travel to West Virginia for an unannounced, in-person interview of Carty, who had moved there in 1992. In March 2007, Musick contacted the West Virginia State Police to ascertain whether they could supply an interview room and someone to assist in administering a polygraph examination. Musick was referred to State Police Sergeant James Merrill, who agreed to be available on March 19.

Musick and Majane drove to West Virginia on March 19. At approximately 3:30 p.m., they went to Carty's apartment, introduced themselves, and told Carty they wanted to discuss his earlier statement about Attenborough's murder. Carty invited them in. After a brief discussion, they asked Carty to accompany them to the West Virginia State Police Barrracks in Morgantown.

When they arrived at the barracks, Musick, Majane, and Carty entered a secured area, and were escorted to an interrogation room on the second floor. Majane went to start the video recording equipment. Musick remained in the room and read Carty his Miranda*fn1 rights from a card, pausing after each clause and asking Carty if he understood his rights. Musick then gave the card to Carty. He read and signed it. The video recording began just after Musick concluded the Miranda warning, at approximately 4:02 p.m.

After gathering some preliminary information, Musick and Majane began their interrogation. They asked Carty what he knew about Attenborough's death, using his 1982 statement for comparison. Majane asked Carty to explain the unwelcome sexual advance mentioned in the 1982 statement.

After further questioning, the following exchange ensued:

Q. Did you assault John Attenborogh?

A. No. No.

Q. Are you willing to take a polygraph exam?

A. I think I could, yeah.

Q. Right now?

A. Put me on it.

Q. Okay. That will be arranged. Are you willing to give us DNA samples?

Q. -- will you give [a DNA sample] to us voluntarily? You will?

A. Yeah. Sure.

Q. Okay. And you're willing to take a polygraph?

Carty gave no response to the last question. After further discussion of DNA samples allegedly found at the crime scene and the accuracy of testing after such a long period, the issue of the polygraph was raised again.

Q. We don't know anything about (indiscernible). We're willing to take your sample from a DNA right now.

A. You can take the swab, but you will --No polygraph 'cause DNA is all you need.

Q. Okay. But --Q. [Musick] Well, no. No --Q. [Majane] A tool to help us --Q. [Musick] A tool to help us to even clear you more, a polygraph would be perfect.

Q. [Majane] We'll do a polygraph examine. . . . .

Q. [Majane] And if you're willing to take it, we'll give it to you right now.

A. What time is it?

Q. [Musick] Basically, listen --Q. [Majane] It's 4:45.

Q. [Musick] It'll return back to what you said before.

A. Because I have to be somewhere at 6:30 and I have to shower before I do it.

Q. [Majane] Okay.

Q. [Musick] Where do you got to be at 6:30?

A. I got to be at Chestnut Ridge Hospital for a session.

Q. [Musick] What kind of session?

A. It's a -- it's family origin stuff. It's about -- about adult children of alcoholics.

Q. [Musick] This is a pretty, pretty important situation we're dealing with here, George, you know what I'm saying?

A. I know, but --Q. [Musick] Listen, I'm sure --A. -- but you don't think my stuff's important?

Q. [Musick] Absolutely. Absolutely I think your stuff is important, but we got one shot at this. We can't ...


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