State v. JohnsonState v. Johnson
The substantial question here is whether a written confession given the police by defendant as to his participation in a gas station robbery on South Orange Avenue, Newark, was admitted in evidence erroneously because of the absence of timely warning to defendant of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). Defendant was convicted of the crime.
A preliminary hearing on admissibility of the confession in relation both to compliance with Miranda and voluntariness was held out of the presence of the jury. At the hearing Detective Bostic of the Newark police testified that defendant surrendered himself at police headquarters the evening of October 5, 1967, saying that he understood from his wife that detectives had been at the house looking for him “in connection with another crime,” i.e., other than the gas station robbery. He was promptly arrested for the other crime and remained in custody over night. The record does not indicate that he confessed to the other crime.
Bostic testified that on the morning of October 6, 1967, having received information that defendant was involved in the South Orange Avenue gas station robbery, he began an
The trial court overruled defendant‘s objection to admission of the confession on the ground that it was obtained after the Miranda warnings were given; that the only effect of failure to give the warnings before the commencement of the interrogation was to prevent the State from introducing into evidence anything incriminatory said by defendant before the warnings were given and waiver obtained, but not to exclude anything said by defendant subsequent thereto.
Under the circumstances here present, we are firm that the trial court erred. The Miranda opinion itself states and emphasizes five or six times that the warnings must be given at the outset of any interrogation of a suspect of a crime in police custody. Our own Supreme Court says that the Miranda warnings must be given whenever a suspect is in custody and “is subjected to questioning.” State v. Barnes, 54 N.J. 1, 5-6 (1969). While violation of that enjoinder might not be fatal in relation to any nonincriminatory response to such interrogation made before the warnings, it clearly is fatal to the entirety of an ensuing confession if it is preceded by an incriminatory response elicited before the warnings are given and an effective waiver obtained from the suspect. This is what occurred here.
This situation is not comparable with State v. Barnes, supra, where the question was asked of a defendant, being
Certainly Miranda will not stand the interpretation that the police need not give the warnings to a known suspect, as here, merely because the form of the interrogation is: “Do you know about the x robbery?” rather than: “We know you did the x robbery. Tell us about it.” The inherently compulsive effect of all custodial interrogation of a suspect is presumed, the purpose of the rule being prophylactic. Miranda, at p. 467, 86 S.Ct. 1602.
Defendant was a suspect of this particular crime when the interrogation began that morning. Bostic said so. When, on specific query concerning this crime, defendant said he wanted to make a “clean sweep” (undoubtedly meaning a “clean breast of it,” in common parlance), Bostic could have had little doubt that defendant was telling him he was involved in the crime. At the very least, that interpretation is, if not the only conceivable meaning of such a remark, a common and generally taken signification of it. The trial court did not find that this did not constitute self-incrimination, and we conclude it plainly did. Miranda applies regardless of the degree of self-incrimination evoked in violation of the rule. (At pp. 476-477, 86 S.Ct. 1602).
Once defendant, unarmed with the necessary warning of his rights, confirmed Bostic‘s suspicions of his involvement in this crime with his first response to Bostic‘s initial probe, defendant‘s psychological defenses against full self-incrimination were down, contrary to the policy implicit in the very rationale of the Miranda rule, and the giving subsequently of the Miranda warnings could not have had the protective effect, as to this defendant, against unadvised self-incrimination envisioned by the United States Supreme Court in formulating the doctrine. Looked at another way, the full
Since we think a reversal and a new trial must attend the foregoing conclusions, we need not deal with defendant‘s other assertions of error, except to warn that the State must be careful not unjustifiably to refer to prior criminal involvement of a defendant where not offering to show a conviction relevant to credibility.
Reversed and remanded for a new trial.
KILKENNY, J.A.D. (dissenting).
I do not agree with the majority‘s holding that, under the facts herein, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), requires a reversal of defendant‘s conviction of robbery. In my view, the Miranda warnings were duly and timely given, under the circumstances, before defendant confessed his participation in the robbery. Accordingly, I would affirm the judgment of conviction.
There was ample proof that a robbery was perpetrated on October 3, 1967, at about 11:45 P.M., at a gas station located at 347 South Orange Avenue, in Newark. The station attendant was robbed of about $100 in cash by a bandit who brandished a short-barreled revolver and demanded the turnover of the money. While expressing a desire not to kill one “of his own kind,” the robber pointed the revolver “right straight” in the victim‘s face.
Two days later, police went to defendant‘s home and told his wife that they wanted him to come to the police station to be questioned about “some other crime.” The wife told her
“Do you have knowledge of any robbery on South Orange Avenue?”
No Miranda warnings preceded this first and single question.
Instead of giving a simple “yes” or “no,” which would have been a proper response to the question and not per se inculpatory either way, defendant volunteered the nonresponsive answer that “he wanted to make a clean sweep of everything.” At this point, before any other questions were asked and before defendant was permitted to make his “clean sweep,” he was given the four-fold warnings required under the Miranda rule. He persisted in his desire to make a “clean sweep,” waived his rights as recited in the preamble of the statement, and answered voluntarily the questions put to him by the police. He portrayed his role in the South Orange Avenue robbery as the driver of the get-away car. He named the two confederates with whom he planned the robbery and assisted in its commission.
While defendant at trial challenged the voluntariness of his written, signed and witnessed inculpatory statement, the trial judge determined preliminarily its admissibility as having been voluntarily made and the jury ultimately presumably resolved that it was voluntary, as evidenced by its verdict.
As stated in Miranda:
“There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime * * *. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” (384 U.S., at p. 478, 86 S.Ct., at p. 1630; emphasis ours)
When defendant was asked if he had “knowledge” of “any” robbery on South Orange Avenue, and “volunteered” that he wanted to make “a clean sweep of everything,” there was no compulsory self-incrimination. Miranda, as noted in the quotation above, does not require the police to stop a person who wishes to confess a crime. The police in this case did more than merely let defendant talk on. They stopped him from furnishing his “clean sweep” until after he had been fully warned as to his rights. That such a warning had not preceded the first general question and defendant‘s volunteered willingness to tell “everything,” the incriminating story after full warnings given would not and should not preclude the detailed questioning and answers that followed the warnings. After all, a promise to make “a clean sweep,” without more, would not per se support a conviction.
“Most important, it was not the type of question which centered blameworthiness on the defendant.” (at p. 6)
As in the Barnes case and for the reasons therein expressed, the single, general question addressed to defendant in the present case, and his volunteered statement, not directly responsive to the posed question, clearly distinguish this case from the recent decisions in Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), and Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (March 25, 1969). In the words of Justice Proctor:
“In our efforts to protect a defendant‘s essential privilege not to be coerced into self-incrimination, we cannot strain to bar as well those inculpatory situations which so clearly are not the product of inherently coercive police practices.” (54 N.J., at p. 8).
So say we in the instant case.
I agree with so much of the majority opinion as finds no substantial merit in any of the other grounds asserted by defendant in his argument for a reversal.
I favor affirmance of the judgment of conviction.