State v. Miller

PLAINTIFF-PETITIONER, JERSEY, v. STATE OF NEW MILLER, JR., DEFENDANT-RESPONDENT. FRANK M. 7, Reargued Argued January March 197 7 May 24, 1978. Decided Counsel, argued Ms. Marianne Espinosa, Designated (Mr. At- Gilbreth, Deputy Peter N. for petitioner cause torney General, counsel; of Ms. Espinosa and Mr. Gilbreth briefs; on the Mr. John J. Degnan, Attorney General of New Jersey, attorney). Zimmetrmann,

E.Mr. Neal Counsel, Designated argued Ness, the cause for O. Van respondent (Mr. Stanley Public Defender, attorney).

The of the opinion court delivery was by Sullivan, Defendant J. was indicted murder Deborah S. a Margolin, 17-year old tried girl, was jury found of murder in the first guilty He degree. was sentenced to life imprisonment in State Prison. The evidence him principal against statement, was his oral recorded on at tape, made while he was being questioned police barracks, in which On he admitted killing girl. appeal, Appellate Division, opinion, unreported reversed the conviction on the defendant’s ground This confession was sense. constitutional involuntary J. 70 N. Court granted certification of petition. the State’s 141 (1976). morning

The as follows. On the essential facts are years age, Deborah August 13, Margolin, in East farmhouse on the of her patio parents’ sunbathing wearing County. Amwell Hunterdon She Township, was there a at the While she suit time. two-piece bathing sounded a to the house and driver white car drove up brothers, Daniel and The girl’s the car’s horn several times. house, observed Bernard, from windows upstairs severe dents in vehicle two its dusty right white shut. The male driver wore loose side and its trunk tied worker.” Daniel and “looked like factory clothes fitting that a heifer the man tell Deborah was loose down heard driveway. the bottom told her brother girl at any got family didn’t need into car and help, that she never driveway. She was seen alive again. drove down the home, Later that afternoon when the failed to return girl a search found of the area made and Deborah’s body was was slashed, face down in a stream. Her had throat been her nude severing vein. The was windpipe jugular girl for a her waist. except part of her bathing suit around Stab and had in cutting pelvic wiounds been inflicted her area and Her vagina. breast been cut. right

The car to the description of the in the driveway given directed was police immediate attention defendant who then from on a 1969 carnal parole conviction of abuse who had been arrested on morals July 10, 1973 another case, The officer that also charge. who was arresting in the participating of Deborah investigation Margolin noted homicide, the car seen description similar Margolin driveway was to the one owned defend- Miller’s description ant. also with appearance conformed of the driver that car given by one of the brothers.

Two located at police officers defendant approximately 10:50 day same and interviewed him at a p.m. plastics factory in where he some Elemington employed. was After conversation which during gave officers per- mission to examine his car which there, was defen- parked dant the officers to the agreed accompany Elemington barracks for further police arrived at questioning. They the barracks at about 11:49 p.m. began questioning about two hours later and lasted for about 58 minutes. The interview was recorded. tape read Miranda his initially

Defendant and ex- rights talk without pressed being his willingness attorney However, he present. asked reassurance given remain stop any at time and silent. Defendant right Miranda then card. In and dated signed rights begin- defendant denied involvement at the ning any episode subsequent farmhouse and How- Margolin girl’s death. ever, was confronted time discrepancies in his story as to his at the time. The whereabouts officer out pointed the vehicle seen in the description drive- Margolin a the car “T” and that defendant’s to inspec- matched

way fac- lot of plastics the car the parking of defendant’s tion said The officer front seat. blood the disclosed fresh tory defendant of the car fitted of the driver description that the con- this, defendant Despite he the clothes was wearing. and he to that girl never talked the to insist he tinued that in- he “wasn’t to that something was not to admit going volved in.” of the subject

The conversation then around to the got crime. had committed the mental condition of the who person The “whoever needs really help.” Defendant said did it that a such a was criminal really officer not suggested person medical who should rather needed treat- punished, but ment. The officer he all he to de- help said would do could but first by fendant that defendant had to himself talk- help about it. ing he that was the who person the admitted

Finally, defendant the about drove the to driveway spoke girl up Margolin he the cow. He he back to where said that had driven cow, seen the him in her car. following They girl when, started de- walking fields to through' according fendant, scream, he heard he turned and saw man girl with a knife he to girl. Defendant said tried cutting but man cut him with girl the knife ran help away. Defendant in his car put girl be- panicked he was and when thought cause she to dead he got bridge over a stream he her off” the into “dropped the stream. bridge was

The officer that defendant said being completely “you honest with him killed didn’t stating you?” this girl When answered. “No I didn’t” the officer repeated, defendant “You’ve I to tell me the truth. can’t got help you without truth.” reply Defendant’s was telling you Sure, I’m the truth. that’s her blood in the car because way her, help I and then when seen the I wanted she cut got something when like she fell over I scared to even be involved in ' parole this, being on ... truth issue, truth officer persisted “to be truth- end. urged would He prevail denial, waver in his ful with Defendant yourself.” began father.” on the Seizing to kill my “This is saying, going father, the officer said reference out, important [i]f the truth is will understand. That’s the most you not, thing, happened, Frank. were not what has The fact you you problem. truthful, said, I X forward and look came problem. This im- I have a is what’s didn’t mean to do what did. portant, Frank. when were they He said that Defendant then confessed. down cow, into his car to go unable to find the the girl got drove down the road see if there. They the cow was from his the where took a pocket defendant bridge penknife real and said he had no the Defendant cutting girl. started or why, recollection of he did to the just girl although what he her oil After the remembered the throwing body bridge. and, hose, incident said he drove home using defendant washed the In from the seat of car. answer to the blood the officer’s inquiry, defendant indicated he would be to willing a formal give statement. after

Shortly terminated, the was defendant questioning appeared to into a go state of shock. off He slid the chair onto the floor and had a blank stare on his When he face. not respond did to questions, he was taken to Hunterdon the Medical Center.

The tape recording the evidence de- principal against fendant at his trial. It was into admitted evidence over de- objection fendant’s a noir dire at following hearing which defendant that he testified remembered to the going barracks for but had no questioning recollection of in- his terrogation, as recorded on tape. defendant, the to According the first thing remembered after in the being barracks’ coffee room was when he came to in the medical center.

The trial attached judge no particular significance to de- fendant’s lack of present recollection of the taped interview. or improper have been

He found the questioning voluntary defendant’s statement coercive and that case, defendant State’s conclusion admissible. At the in his defense. own testify the stand and elected not to take an incident took which place the trial During a fair trial. Because of claimed his right also prejudiced crime, to hear nature of the were chosen persons B. case The rule is intended to insure pursuant 1:8-2(cl). a sufficient number of to render a verdict should a jurors ill, die or juror become disabled or disqualified otherwise from to sit. The continuing rule is useful particularly trial protracted where of a the loss otherwise juror would re- a mistrial. quire then rule as follows i1 provided (d) Jurors; Alternate Civil and Criminal Actions. The court in may impanelling jury its discretion direct of a of such number appropriate 16, having as is under the circumstances not to exceed qualifications impanelled the same and sworn man- same jury juror ner aas If a of 12. is excused after he has been sworn any opening juror begun, may but before statement another be impanelled place. jurors and sworn to take All the shall sit case, good may any hear the but the court cause shown excuse provided jurors of them from service the number of is not reduced may to less than 12 or 6 as the may be or such number as case other stipulated jury If than number more such are left on the to. charge, clerk of the at the conclusion the court’s court presence put slips their names on conceal its names, shall folded to suitable, place slips in a box and from it shall draw shall jury required reduce the number such number names as will Following drawing of the names of the issues. to determine may issues, jurors in its discretion order to determine the the court jurors discharged, in not be which event the alter- alternate the that jurors apart sequestered jurors from and the other shall be nate court, subject and instructions the same orders to the shall be jurors. matters, sequestration respect and other as the other to jurors discharged any after and if at time are not If alternate the juror juror jury, a or a dis- dies to the of the case submission con- by he is ill or otherwise unable to charged because court the may draw of an alter- tinue, clerk to the name direct the the court September was amended to eliminate the rule 1Effective fourth of the rule. in the line 16” phrase exceed “not to the juror place juror is deceased or dis- to tlie the who nate take juror made, charged. a an alternate such substitution When may supplemental give jury such instructions as the the court shall appropriate. be names trial, conclusion of the the case, In instant the at the jury.2 drawn constitute the of 12 of were to jurors the four the However, the court did discharge remaining rule, se be jurors. they Pursuant the it directed if needed questered from other to be available apart jurors the chosen. one of the 12 replace jurors about and After the had bean for an hour jury deliberating a court “to quarter, clarify sent the asking note definition between first and second murder.” The jury degree recalled and the distinction between the recharged two of murder, the court extent degrees large repeating verbatim the of its charge. language original

Just after the court finished its instructions supplemental and asked to retire to jury deliberations, continue its before left jury box, jury number 11 juror asked to be dismissed from the as he jury was too nervous it was affecting In judgment. answer to by inquiry the court the juror he said that think he did not ren- could ader fair verdict. conference,

At the prosecutor the sidebar suggested juror excused and one the alternate jurors be chosen place. Counsel take his stated that could he “hardly object to withdrawal juror of a who says can’t a fair impartial reach verdict.” However, he op- after posed substituting juror jury retired to de- liberate. He said that only remedy to declare a mistrial.

The court juror number discharged 11 from the panel clerk, lot, had the draw the name of one of al- rule, proper procedure 2TJnder the should have been to reduce jurors by selecting the number of to 12 prejudice 4 alternates. No procedural resulted from this error. of the discharged juror. the place ternate take jurors have “start then it would jury The court told deliberations. About minutes later over” its In a verdict. jury open it had court reported agreed it then a verdict of mur- guilty returned finding der in the first degree. the conviction on the Division reversed Appellate result of confession was the intense that defendant’s

grounds compulsion should mind-bending psychological constitu- been excluded from as evidence involuntary tional sense. The its “convic- Division Appellate expressed tion of defendant’s “abhorrence at crime guilt” its well Nevertheless, committed.” guilty it held that the as as the innocent were entitled to and that the use process due of defendant’s confession at a reversal and required his trial a new trial.

We have no quarrel the legal principles expressed by the Division. Appellate We with its disagree, though, evaluation the techniques and tactics used the officer who questioned defendant, as well as its conclusion de- fendant’s confession was in the' involuntary constitutional sense. case must turn on its

Every In particular facts. voluntariness, determining the issue a sus whether pect’s will has been overborne, a court should assess to of all the tality circumstances. It surrounding con should sider the characteristics the suspect and the details of Some interrogation. of the relevant factors include sus pect’s education age, and intelligence, as advice to constitu tional rights, detention, length whether the questioning was repeated and prolonged nature and whether physical or punishment mental exhaustion was involved. Schneckloth Bustamonte, v. 218, 412 U. S. 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 854, 2d 862 (1973). A suspect’s previous en counters with the law has been mentioned as an additional Puchalski, relevant factor. v. State 45 N. J. 101 (1965). some 32 with years a man age, Here defendant was mature education, experiences who had school high previous court em- the trial law. In of voluntariness its finding with his was familiar” phasized that defendant “quite of low or Miranda There was no indication rights. grade oriented, was subnormal on defendant’s He intelligence part. alert and responsive'.

The shows defendant was advised tape recording of his Miranda and fights his expressed had willingness talk to the officer without an but having attorney present first and sought obtained he reassurance that could at stop - timé any remain silent. The officer then proceeded prod defendant about time discrepancies in-his story as to his house; whereabouts at the time the left her He girl was re n minded evidence that linked him and his car to the in cident. As the trial noted, court an: interrogating police officer not limited to a asking if he suspect committed the crime if he receives a negative answer, that must be the end the questioning. ais natural

There reluctance on the of a part suspect to admit to the 'commission aof crime and- furnish details. Smith, See State v. 32 N. 501, J. 550 (1960), cert. denied, 936, U. S. 383, 81 S. Ct. 5 L. Ed. 2d 367 (1961). by Efforts an interrogating officer to dissipate this reluctance and persuade the to talk person are proper as as the long will of the suspect not Smith, overborne. As we said in N. J. supra, at interrogation, conscientiously

An matter conducted, no how is natu- rally a apprehension, bound to be tense occasion nervous-, and to evoke pressure, and a ness sense of no matter situation, what which person heightened guilty by will in a be who knows he is conscious- guilt legal penalty. recognized ness and fear of the It must be stress, pressure this kind of it is not normal fear and which can questioning involuntary. unfair and a make the confession inquiry is. whether interrogating'officer can appeal a him' that tci hé is .-telling thé suspect- suspect’s friend —him and wants to that' help whoever killed this "is girl a criminal who should be who punished, person needs medical treatment. Does the officer have the right tell the himself suspect that he must first help by telling truth and then the officer will what can to do help suspect with problem?

It must be conceded that into this moves technique shadowy area if carried in time persist- excess ence, can cross that line and intangible improper. become Here, though, the lasted for less than an questioning just hour. While there is an indication that defendant normal end, distressed near the would becoming reaction as the what had done enormity of being home to Defendant brought expressed him. fear that “this kill Defendant’s is father.” going my was his collapse shortly interrogation after of completion the culmination of this realization. the

It is from the in this case that evident record officer’s on remarks had no appreciable impact of his did not contribute to certainly “overbearing noted, will.” had been arrested Defendant, as previously which a conviction for previous had prior occasions -and way he was in no deluded or misled had been He imprisoned. in any into was acting that the state trooper believing in as an officer interrogating police than other capacity Miller aware fully a crime. was of serious the investigation subject which was the been committed a that murder he a in the prime suspect and that investigation of should the investigation prove that knew well He killing. be he would charged he to confess were successful He was of certainly crime. cognizant of commission handled the criminal be through would he that fact be would guilty, punished if found and, system judicial for Miller did concluding no basis There is accordingly. of his understanding situation complete have not and confession. interrogation throughout into evidence admitted and sub be can Before confession must proven defendant’s a jury, ato mitted by the State to be voluntary beyond reasonable doubt. v. J. Kelly, State 61 N. A’ (1972). confession which is the .of or coercion product physical psychological must be considered to be involuntary and inadmissible evidence we regardless However, its truth or falsity. with the Division’s disagree Appellate suggestion use of a psychologically-oriented technique questioning suspect inherently coercive. of a Questioning suspect almost involves the use factors. necessarily of psychological to a sense of Appealing person’s him to decency urging tell truth for his own sake are applications psycho logical Use of a principles. psychiatrically-oriented technique improper because it merely causes suspect his mind change and confess. The real issue is whether of mind was change and not an voluntary overbearing the suspect’s will.

We find that interrogation this case did not exceed proper bounds and that the voluntariness of defendant’s confession could properly been determined by the trial court to be established a reasonable beyond was, doubt. It therefore, admitted evidence. properly into connection, In this we reject defendant’s related contentions that his confession product strongly implied of an promises insanity defense and no if prison sentence defendant confessed as substantial having no basis in the record. The same the contention confession was the of product trickery by lies the police.

We next consider defendant’s B. argument (d) that 1:8-2 is unconstitutional permits insofar it as alternate juror to be substituted for an after original juror delibera- jury tions have The contention begun. is that substitution of a juror at this of the a stage proceeding defend- infringes ant’s trial right We by jury. considered this question in 1972 when the particular amendment to the rule was Our amendment, of the proposed. adoption effective Sep- 5, 1972, tember was based on the conclusion that no ¡obstacle constitutional presented. was 406 free from is not

Nevertheless, completely the matter N. 100, 278 Y. S. Ryan, v. 19 N. Y. 2d People In question. York the New 199, 2d 224 N. E. 710 (Ct. App. 1966) 2d in the struck a similar provision Court of down Appeals violative of York Procedure as New Code Criminal York the' New jury by of trial by provided right substituting juror Constitution. court held The in a 13th after had effect bringing deliberations begun the consti into the deliberations and that offended juror tutional provision. Collins, 687, 17 Cal.

At v. 3d People opposite pole cert. 782, 1976), 131 Cal. 2d 742 Ct. Rptr. (Sup. 552 P. L. 820, Ct. Ed. 2d denied, 429 U. S. S. Court California (1977), Supreme upheld where the Penal which for substitution provided Code provision of an alternate for an after deliberations juror jury original The constitutionally court found to be begun. not of the of trial violation permissible right shown, jury cause was and the jury, provided good deliberations anew. instructed to begin Procedure, Rule 24(c), The Pederal Rule of Criminal while for alternate substitution providing jurors, permits retires jury for to the time regular jurors only prior 'However, to consider its verdict. it has been suggested a juror this rule be amended cover the situation where “to becomes for deliberations or is incapacitated excused during Practice, 24.05, Moorets some other reason.” 8A Pederal ¶ Practice 24-36. Committee on Rules of page Advisory and Procedure of Judicial United Conferences States has in Rule so as to proposed change 24(c) permit alternate has juror substitution after deliberation jury begun. (d) Rule 1:8-2 providing

We find that shown, juror máy an alternate substituted cause good does begun, after deliberations have juror for a regular of trial by jury. guaranty our constitutional offend when the juror question cause Certainly appeared good

407 then stated that in his nérvous emotional condition, he did not think he conld render fair Of course, verdict. when an juror alternate is substituted, so must be jury instructed in clear and .terms that it is unequivocal begin anew, that, its deliberations as the trial stated judge herein, are in “you effect to have over.”' to start going

The rule with is the trial discretionary court because a situation arise to utilize might where it would unwise be this procedure. longer period jury time deliberates, the should greater possibility prejudice a juror be substituted or However, in the circum replaced. presented stances herein find we that utilization of the Trent, rule not 157 provision See State v. -improper. N. J. Super. 231 Div. (App. 1978). No rule is immutable. court always receptive is1 'The . National In re improvements our See procedures If it Corporation, 64 N.

Broadcasting J. (1974). constitutional, appears rule, existing although creates trial to its problems, attention should be given Practice continued usefulness. Our and Criminal Civil Committees well might utility reassess presefit amendment in the five light years of our and one-half it. experience with

A that even further contention made the 1972 rule constitu- though amendment held 'to be tional, court error, replaced trial after committed juror number not having an alternate juror, It juror. its to ’the supplemental charge read substitute seems to be that when the undisputed charge supplemental first to the to the distinction given jury as “between were not degree murder,” jurors second the alternate present in courtroom and hear the did supplemental charge.

The alternate should jurors have been brought 1:8-2 into courtroom to hear Eule charge. (d) such if alternate are not provides jurors discharged following from apart are to be sequestered the jury, they of selection the orders and are “to same subject jurors the other * * * jurors.” other court, as the of the instructions was not However, conclude that we The with the rule. failure to by comply the prejudiced entire jury panel including to the charge original and correct instruction was an jurors adequate alternate The of murder. as to the between the two degrees difference almost extent, to a supplemental repeated, charge, great was jury The entire verbatim, instructions. original the court’s of if of any part told that it needed clarification the court. it a written should submit charge, request for clarifi After the alternate no juror request seated juror this assumed that cation was made so that it must be circumstances, we not further In the did need instructions. find no reversible error. contention defendant’s additional

We have considered The manslaughter. have been charge there should that in to support the record There is nothing is frivolous. point State v. See jury. of such an issue to the the submission Artis, N. J. 30 (1970). reversed and the Division is the Appellate of judgment imposed, sentence conviction, including

judgment reinstated. hereby I dissenting. D. assigned), P. J. A.

Conford, (temporarily Court’s reversal of the am constrained from to dissent are in this case. Appellate My grounds Division judgment of the Di- Appellate two: unanimous determination (1) the from vision that the confession obtained defendant was him him from means denied by process extracted that due sound; the circumstances the sub- (2) attending stitution juror of a the deliberations of during jury denied the defendant his to an right untainted trial. jury Eor either or both of these reasons the verdict of should guilt be set aside and the defendant a new trial. granted

I saying first. It without address the confession issue goes adjudication render an easy judge of an results of the conviction vacation apparently — as guilty the crime is person reprehensible where especially as one. this It is from Division opinion evident the Appellate that that court considerations. pressure the same felt But no better principle legal jurisprudence is settled or country more self-evident than of faith- price ful enforcement judiciary constitutional rights of individuals embedded the Bill of onmay occasion Rights be the or setting free of the enforced retrial a malefactor. Only year a Justice ago Stewart, in a case to the comparable instant one in its tension between the demands of law en- forcement and those of vindication of individual constitu- tional rights, felt moved to in say, the reasons of expressing the Supreme Court for a vacating conviction: pressures judicial The on state charged executive officers the. administration great, of the especially criminal law are when the crime is murder and precisely the victim small child. But predictability pressures imperative of those that makes a resolute loyalty guarantees to that the Constitution extends all. to us Williams, 387, 406, 1232, Brewer v. 430 U. S. 97 S. Ct. 1243, (1977). L. 51 Ed. 2d 423 Previously, case, a confession Chief Justice Warren had said: society involuntary of of abhorrence the use confessions does not turn alone their inherent untrustworthiness. It also deep-rooted police obey feeling must turns on the. that the law law; liberty enforcing be as

while the end life and can endangered illegal thought methods used to much from convict those actual criminals themselves. be criminals as from the York, 315, 320-321, S. Ct. v. New 360 U. 79 S. Spano v. 1202, 1206, L. Ed. See also (1959). 3 2d 1265 Mapp Ohio, L. Ed. 643, 659, 1684, U. S. 81 S. Ct. 6 2d 1081 367 410 States, 438, 485, S. 48 277 U. v. United Olmstead

(1961); Brandeis, dis L. Ed. 944 564, (Justice (1928) S. Ct. senting). these prin faithful high

This has been equally Court Macri, N. Justice In v. J. (1963), State ciples. Jacobs stated: responsi- judges, judges, high no State less than federal they,

bility rights. protecting less of no than constitutional While occasionally guilty officers, disturbed when the lav? enforcement are insuring go unpunished, they as incidental cost tolerate that guaranties Consti- afforded the continued effectiveness all of us as free men. tution to his Court, conscientiously voting All members of this each issue, are bound own on the of this troublesome views merits in this at least to affirmance of the conviction realize case to the signals community law-enforcement method of in the of this interrogation resulting confession before freely us is may unexceptionable practiced. join such signal. cannot All that an involuntary members of the Court con agree — fession from or suspect by physical one extracted — of the cannot be part coercion on the psychological police used in a as a suspect, trial matter of his right to be without due Brown deprived v. liberty process. 278, 297 U. S. S. Ct. Mississippi, 461, 56 80 L. Ed. 682 (1936); 149, McCormick Evidence 317. Al (1972) p. § the cases that no test though recognize of involun single formulated, can tariness be the essence of the controlling rationale is found in the statement in Culombe v. Connecti cut, U. 568, 602, 367 S. 1860, 81 S. Ct. 1879, L. Ed. 6 2d 1037 (1961): only The ultimate test clearly remains that which has been the Anglo-American established test years: courts for two hundred product

the test of Is voluntariness. the confession the of an es- sentially by is, free and unconstrained choice its maker? If it if he confess, may against not, has willed to it be If used him. is if

411 capacity Ills has been for self-determination will overborne critically impaired, process. of offends his confession due use a, * * jjjjg ¶|16 governing o:£distinction is that at which self-direction lost, compulsion, infused, is or however of whatever nature helps propels propel or the confession. cases, from earlier matter, drawing Another view of the 1, 7, U. S. 84 Hogan, v. 378 in Malloy was reformulated where the L. Ed. 1489, 1493, S. Ct. 2d 653 (1964), 12 said: Court * *' * n inquiry conduct of state is not whether the constitutional shocking, obtaining whether con- is officers in confession voluntary: not be extracted [it] that must fession was ‘free by any by any violence, or im- dm-eot obtained of threat or «Ior sort any improper plied promises, slight, exertion of however nor * * added). (emphasis

influence 1602, Arizona, 86 S. Ct. 448, 436, 384 U. S. Miranda v.

In noted: L. the Court 1614, 16 Ed. 2d 694 (1966), * * n *' in-custody interrogation practice of the modern we stress * * * physically psychologically this Court oriented. rather than physical, and recognized as as well can be mental has that coercion only hallmark of an uncon- accused is not blood of the inquisition. stitutional totality on the alike; all must be decided No cases are two nor “neither body ultimately But of circumstances. Culombe until he breaks.” twisted may of an mind accused 869. Connecticut, S. Ct. at 584, U. S. at 81 v. 367 supra, is an under appeal to a resolution of Of importance establish the of the State to burden of proof standing the scope of an confession impugned voluntariness an This Court court on such issue. appellate of review by as on the State has the burden of plainly proof established of a reason beyond voluntariness confession proving 587, v. N. J. Yough, (1967); able doubt. State N. As Kelly, scope State v. J. 294 (1972). ap review, since the issue is of constitutional dimension pellate 412 court conducts fact-law, reviewing one of mixed the equiva the question practically surveillance of

sweeping States, v. Beckwith United of de novo lent redetermination.1 L. 1612, 48 Ed. 2d 1 341, 348, (1976); 425 U. S. 96 S. Ct. York, S. Ct. 1202 316, v. New U. S. 79 Spano 360 at supra, Contursi, 428, N. n. 2 422, State v. 44 J. (1965); (1959); Smith, 501, State v. cert. den. 364 544, 32 N. J. 549 (1960), U. see 936, 383, S. 81 S. Ct. 5 L. Ed. 2d 367 (1961), Johnson, v. 160, State N. n. 146, 42 J. 2 (1964). In view all of the circumstances that and the foregoing, subordinate facts of this con to the voluntariness relating fession were court had essentially uncontested available (the the verbatim of a of the transcript entire taping interroga tion at the Division had ul police station), Appellate timate responsibility for itself determining independently whether State its burden of carried establishing beyond reasonable doubt that the confession was voluntary, e., i. that “neither the nor body mind” of Miller was “twisted until Connecticut, Culombe v. 367 U. S. supra, [broke].” 584, at 81 S. Ct. at 1860. That the Division Appellate cannot fairly be said to have erred in that the State did not finding meet its burden is best demonstrated forth by its setting opinion substantially its entirety, as follows:

“PER CURIAM

“Defendant was convicted of murder in by jury first He degree. appeals on a number of grounds. principal one of is a these challenge the voluntariness of a confession. are

“We extraordinarily fortunate in before us having of a transcript tape made recording the in- during terrogation which led to the confession. This obviates any 1If involving there are contested issues as to facts subordinate credibility witnesses, may any fact-findings deference be accorded judge. Bowden, Super. thereon the trial State v. See 62 N. J. (App. Div.) Duffy, den. sub nom. State v. certif. 33 N. J. (1960). transpired. which to that respect speculate need to we first then, unique vantage point, this from Operating, that a hope guilty to the 'decent’ our allegiance declare 35, 52 McKnight, State v. 52 N. J. man stub toe. may his which Then and tactics techniques we (1968). deplore which, in our extracted this confession judgment, denied due law. process defendant Arizona,

"A Miranda v. 384 U. S. 436 (Miranda [86 1602, S. Ct. L. voir held. 16 Ed. 2d dire was (1966)) 694] found, Thereafter in findings adequately sup judge v. ported by credible evidence the whole record (State Johnson, 42 N. J. 146 Miranda (1964)), warnings were ain Then given timely manner. the trial judge, real recognizing 'only problem’ as one of 'whether being or not there was any cajolery, inducement, combination thereof that overcame the will of the defendant so that subsequent his not, answers to the questions several were "voluntary”,’ and relying definition of upon 'voluntary’ Bustamonte, found in Schneckloth v. 412 U. S. 218 [93 S. Ct. 36 L. Ed. 2d determined (1973), 854] confession to be admissible. said, He any trickery apparent I don’t think there was either infer- or [defense, in this able statement. The most can be said as promise help. has question counsel] indicated a There is no statement, promise is in I do not find that was such be, as to cause confession to inadmissible will therefore subject be received in evidence to certain deletions which about presume. we talk should now "We are clearly error persuaded this determina- tion.

“The must be tape transcript read in its .entirety for aroma full to be savored. its The interrogation (at began two in the morning) o’clock gently enough with a recita- tion of earlier discussion between the interrogating and defendant at trooper the latter’s place of work. It prodded (almost kindly; eon- trooper defendant both and' patronizingly addressed tinually his on his first about whereabouts activities name) Then a minor in defendant’s previous day. discrepancy arose. The trooper pressed advantage, again timetable now,’ defendant, 'Okay, told 'this gently. problem.’ said, Defendant 'I realize this . . .’ “Then trooper out ve- pointed that defendant’s hicle had damage, clay dirt, some some red or and1 portion T: There blood found the left front interior your vehicle, tonight, fresh blood. D: Fresh blood? Yes, very, very T: This is serious. sir. n D: I realize this. * :h » n point T: That’s 3.

“Then statement, came first police as- significant untrue sertedly because as defendant graphically points brief, out his 'no all of this evidence at crucial fact was at trial.’ presented . Frank, point witness,

T: We have now this is 4. We have a your car, who, no, I’m, sorry, witness who identified I’m let me, say car, your I shouldn’t who identified a vehicle that fits description your car, girl’s home, speaking of at this her, telling something being her about a cow loose. Someone help they her, who. was there who wanted to didn’t want Frank, girl, girl, they they didn’t want to hurt this hurt - see,-I this, that, help You know I know . wanted to her. . . D: Yeah. untrue, followed there- what immediately “If this chicane: obviously capitalize after was designed appreciate that, T: ... I because can I because would have done thing. rectified,: something If the same there be. or transcript quotations hereafter, signifies question ‘T:’ 1In or trooper,' signifies response. and ‘D:’ from the. 'defendant’s comment quotations Emphasis any , tape which follow from the tran course, script is, added. somebody thing. problem, if I had a would the same have done n help I came onto have wanted to vehicle that would her. property ... Right. D: description your T: ... fits vehicle. D: It does. say point. Now, T: I fits the that’s And when Yes. the fourth description description, Frank, mean, ato fits the what many ‘t’, before, other how vehicles and as we talked about County yours right now? are like in the there any many, D: if . shouldn’t be too . There . any T: If .. damage right-hand side. D: on the ... because circumstances, your Now, those T: be under what would conclusion you if told that? someone got. you uh, probably, I’d the same conclusion D: T : is what? Which guy that, did that this. D: I’m the That T: did what? That D : Committed this crime. 'we have a that told defendant then trooper “The ** * witness’ which from another description physical also were Defendant wearing.’ 'fits clothes you you and the any In of this statement.- the truthfulness challenges all stage provided event, which had proceeded The trooper which followed. was needed in- by (1) on a marked campaign doggedly embarked and did not not a defendant was criminal sistence that 'to and offers persistent help.’ have (2) a criminal mind a to occupy good portion of that which was Typical - what the balance of this minute fifty-eight grilling transpired: then you’re Frank, you’re a I don’t think T: I don’t think criminal. you have a I think a criminal As a criminal. don’t mind. fact, you mind, a I don’t criminal know have be- matter together, talking a been now for few hours haven’t cause we’ve . we? Right: D: Right?

T: - D: Yeah. mind. a criminal have T: don’t You D: No. prob- you before, But, T: I have know I we all don’t. like noted lems. Bight. D: right? T: Am I plant. Yeah, you D: said this over there at the you agree T: And with me? Yes, D: sir. you problems T: I have have. Bight. D: problem? Now, you T: a how do solve problem. depends D: on That going problem, to solve it? How are we T: Your how do we solve it? D: I know. This don’t you you help T: Do solve it? want me to D: Yeah. possibly give you, help I can all the T: want to extend You me you? don’t Bight. D: you willing do same to me? T: Are D: Yeah. Now, . T: I feel . . D: Yeah. responsible . for this act . . ever, whoever T: ... who D: Yeah. X think mind. have a criminal Does not a criminal. T: He’s problem. they have a Uh, huh. D: you agree me? T: Do D: Yeah. problem. They T: Bight. D: problem Frank, thing is a good about that problem, T: A rectified. can be Yeah. D: help you, you really help you, I want to mean T: I want to help themselves, helps they say, those who God what know Frank. Bight. D: talking know what I’m together You get on this. got to T: We’ve you? about, don’t they’re trying say that, you know, Yeah, especially if D: my identified, uh, say, car’s you I’m identified like together get got this. we only : Now, . . of the items that’s few we do. T: Yes Uh, huh. D : not, forget problem, T: ... that we have now. Your I’m let’s okay incident, ... this tí : Yeah. forget incident, your problem. H3 : . let’s this let’s talk . . about with, your what, Frank, This is this lohat I’m concerned problem. Eight. D: problem you your problem, I T: If I to would want like help my problem. me with Uh, D: huh. Now, you talking T: know what I’m about. D: Yeah. people know, that, uh, I I T: And lot other know. think you’re talking You know I’m I don’t think what about. criminal, Frank. No, you’re trying D: but to make me one. not, not, you T: I’m no I’m No I but want to talk to me so get thing want, we can this worked out. This I this what want, there, I is what I mean it’s all it’s all there. Frank. saying I’m not . . .

“The will-abrading continued: grind now, [the D: If victim] she was to walk in I here wouldn’t know, girl that, uh, talking you’re she know that was the about. you being talking T: But were identified as there to minutes her probably thing happened . before she was . . her. to you explain How can that? D: I can’t. Why? T: why, I, I, you know, explain D: I don’t know but I how can some- thing anything I don’t know about. Frank, look, you xoant, yon help, you T: want don’t Frank? Yes, yet I’m, going huh, yes, uh I’m not to D: admit to something that, that I wasn’t involved in. you to, yon me, T: We don’t want all I want do is talk to talking admitting anything that’s all. I’m not about Frank. you you you I want talk me. I want to tell me what you you I this, to tell how want me think about think. what you think about this? I think D: What about it? T: Yeah. really help. D: think did I whoever needs T: And that’s I think what They that’s don’t, what know. they right? punishment, don’t you need said, they Like need help. Right. D: They good punishment. help, They T: don’t need need medical help. right. D: That’s Putting in, rectify prison problem. in T: them ... to their it, going isn’t to solve is it? know, years. No, there and a I I was for three half D: sir. your prob- the, going right. that’s to solve T: That’s That’s not lem is it? thing only you you get help No, learn is D: no there. The down you to, know . . how . Frank, suppose you person say Well, who were the T: let’s somebody you? you help. to for want do would What needed Help me. D: way? T: In what fit, see, you they know, way they, it would any that that D: In help me. that whoever say defendant to induced trooper

“The problem. had a mental Then probably the deed committed “examined.” Upon had ever been he he defendant if asked tested, been then trooper that he advised being to convincing energies directed his the blame for’ his acts but responsible not be ‘might him. inability for to help was in others their you might Well, way something T: did then still feel this happen because, would Frn con- their fault as as far something happen, your fauht, cerned did not its it’s if . . . their fault Right. D: “The was becom- that defendant trooper acknowledged had come. ing ‘very, very nervous.’ time T: Now listen to me This Frank. hurts me more hurts than it you, people. I because love you anymore D: It can’t hurt than it hurts me. Okay, you Frank, T: listen I want . . . being something ID: even mean involved like this. Okay, promise to, you know, T: listen Frank. If I do all I can get psychiatrist everything, proper with the and we proper you, help you, get help you for will talk to me about it? you something I to about I’m not . . D: talk . can’t Alright, Frank, know, alright, I T: listen I know what’s honest. you know, going help you, you, on inside Frank. I want to you. right going between us I what on inside now. know you Frank, you’ve got want forward and tell me that to come help yourself. got This is about it. to talk to me You’ve know, way mean, you only be able work it we’ll out. mind, you my help you, you listen, are I want because Frank, responsible, responsible. Frank. are not You are what’s the matter? D: I feel bad. Frank, me, God, I’m, telling you, Frank, T: listen I’m honest to (inaudible). know, going you, Frank, I bother to it’s it’s going there, going go you. away, to It’s not bother it’s to it’s right you, right wrong? there. Am I It’s front of Frank. or D: Yeah. you Frank, it, you T: You can see it can feel can but feel it you responsible. trying you, are not This is I’m what tell to you’ve got Don’t, don’t, but to come forward and tell me. you don’t, up, fight got don’t it eat let don’t it. You’ve to rectify it, gott get together thing, We’ve to Frank. on this I, rdally, you help, you proper help or I mean need need yotu it, my God, you hnow, you, yon, you hnow in God’s name criminal, you hnow it. You are not a are not a criminal. Defendant had been enough.

“That told name God he was a criminal. Alright. Yes,

D: I was over there and I talked to her about the my stopped up and left. I cow left car and I on the road where, know, you where the cow had been and she followed inme her car . . . “Even the recitation of the details was interrupted with relentless and successful efforts. Svengalian At one point the trooper interjected, out, £Let it come here, Prank. I’m I’m here with now. I’m you on your side, I’m on your side, Frank. I’m your brother, you and I are brothers Frank. We are brothers, and I want to help my brother.’

“Defendant’s continued insistence that despite presence at scene, he was not the killer could not long resist the tremendous psychological pressure. girl you?

T: You killed this didn’t No, D: I didn’t. got Honest, T: in. It’s You can’t leave it Frank? to come out. you, is, that, It’s I hard difficult hard for how how it realize help yourself is, that, you’ve got before it I but realize going anybody help you. that else can And we’re see to it you get help. job, proper This is our This our Frank. job. I want This is what to do. By sending D: me back down there. now, going T: Wait don’t a second talk about back down there. thing fight First we have to let all do is it come out. Don’t worse, Frank, hurting it it’s worse. It’s me be- because it’s out, wanting hurting it cause I feel it. I to come but it’s feel my me, brother, I All Frank. You’re mean we’re brothers. brothers, this, men all men on face of this earth on are got completely Frank, you to be honest with me. but you be, trying I’m to believe D: but don’t want me. you you, Frank, I want to tell me the T: I want to believe talking Frank, you truth, I’m I about and what know got talking you’re You’ve to tell me about. know what help you truth. without truth. I can't telling you Sure, car D: I’m her blood in truth. that’s help way I when I was cut seen the she wanted'to because her, got in- be fell I scared to even and then when she over something this, being parole . . . volved in like Frank, may this, Isn’t I been an accident. T: realize possible? possible, Frank? Isn’t Sure, possible. D: it’s Well, trying bring out, may what I’m T: this is Frank. It you something that, you did that ac- be can’t held is, you, help you help This I can countable for. can once you talking You I’m I tell me the truth. know what about. help you, you. Frank. I like You’ve been honest with want to way been the me. been sincere and I’ve same with You’ve relationship have, you. kind we I can’t this is the but Now complete you help you tell me the truth. I’ll listen to unless understand, that, you. I Frank. You have to believe under- I you I how feel. understand how much it I understand stand. you you feel I I how because feel must inside. know hurt day may in the situation same some I it Because too. exactly help yourself. got Frank, you’ve Tell what to me but please. truth, Frank, happened, tell me you trying I’m tell D : to truth. help you. you’ve You, It could T: Let me have been an accident. truth, got talking to Frank. You tell me know what I’m help you you about. I without can’t Now know truth. that’s, that’s, counts, I and know that’s all that You Frank. counts, know and I know that’s what that’s what it’s all hide can’t it from each other we We because both about. know, help you’ve got willing yourself. but to You to be know, prob- you’re I think criminal. You have this don’t a before, right? lem like we talked about say thing goes Yeah, now, you, you to court D: this everything you and and .. . No, me, Frank, please T: listen to listen me. now to The issue happened. is what The issue now truth. Truth is issue got this, prevails to now. You’ve believe the truth in. end, Frank. You I’m sincere have to believe that you. saying got I’m when to You’ve to be truthful with yourself. Yeah, end, right? why truth, you say in That’s I done D: years . three a half .. Wait, whoa . whoa T: . . I because of one . for never committed . . a crime D: framing . . stinkin detective me. Frank, Frank. T: D: of Rocco. the name ... you, Frank, you’re talking have, T: me to We have a now. we relationship, you, don’t we? I been Have Frank? sincere Yeah, you D: . .. T: Have I ... been honest? D: ... Yes. your problem, willing I T: I Have defined Frank? been to Have you help you? willing help I I Have stated I’m all can? D: Yes. T: I mean Do it? D: Yes. you anybody way, T: Whenever talk I talk same because very very, problem, prevent have serious want we anything important, Frank, in the This is what’s future. happened past. right now, living not what in the It’s we’re Frank, got now, help more, you we want to now. You’ve a lot years a lot more to live. No, I D: don’t. you Yes, T: do. No, I D: don’t. say you you’ve T: got Don’t don’t. Now to tell me. this, D: going Not after all my because this is kill father. Listen, T: you, Frank. There is where the truth comes out. Your father will you understand. This is what have to under- stand, Frank. If the truth is out he will That’s understand. important thing, not, happened, most not what has Frank. you truthful, you The fact you were came forward and said, problem. look I have I didn’t mean to do what I did. problem, important, I very this is what’s Frank. This is got, I, important, got get Frank, I you, I to closer to I got you I’m, when I’m sincere to make believe this and exactly happened, got you what I tell You me this. to tell inside, you important. very feel know how Frank. I That’s up, eating you Frank, you up, right? eating I It’s it’s am got it for got do You’ve to Frank. to come forward. You’ve father, im-r your family, your

yourself, this is what’s for for me, you to portant, truth, didn’t mean Just tell Frank. you? did kill her mind capitulation superior “Defendant’s : complete dropped thought her off never

D: I dead or I’d have she was like that. “ me, ‘this said, hurting mean, Frank,’ T the trooper me, so out and tell to come just you God listen. want I can all.’ help you, that’s of the and before a

“At the written interrogation end Frank Miller collapsed be prepared, statement could In his de- trooper candidly physically. testimony * * * Mr. as ‘a state of Miller had been scribed it shock. floor chair, on a had slid off of chair on to the sitting face, a blank stare on his staring straight maintaining re- ahead of verbal any type and we were unable to get from him at that time.’ sponse “A first aid Defendant was squad contacted. taken a hospital. “Our for concern the treatment of and the denial of due patent process is substantially tempered our conviction of defendant’s We now over guilt. agonize one necessity giving whom the edge police authorities reasonably, be very probably correctly, of a crime, lieved heinous guilty involving most all no criminal murder. But greatest we wrongs, at all of our duty. doubt An which overbearing broadside results in a confession by virtue intense and mind bending no better fate psychological compulsion deserves at our hands than does the rubber hose. legendary Florida, Chambers v. 309 U. S. 227 S. Ct. [60

423 L. Ed. cherished a determina- We (1940). long 716] blow tion that fair of due shall upon winds process will not here as well as the innocent. We let guilty our which ferreted gratitude work out good police one murderer, who a our abhorrence is and probably most committed, at the he us to abandon crime basic cause constitutional principles. here,

“Thus, defendant’s confes- circumstances sion was sense and is in the constitutional involuntary inadmissible. The a re- error its- admission requires versal and new trial. not law, our of we need

“Broadly based as is conclusion further wrestle with related to de- subordinate problems of product fendant’s claims was the confession express there promises help, such as that psychiatric were of an defense ‘strongly implied’ promises insanity sentence, no prison that the lied to police in order obtain de- the confession and so forth. Our termination also makes it us to unnecessary for decide many other issues raised on the appeal.

“Reversed remanded for a new trial.” find full myself accord with the opinion foregoing and its characterization of the as consti- trooper’s tactics tuting broadside which result in a overbearing “[a]n [ed] confession virtue of intense and mind bending psycholo- An gical compulsion.” aspect of this compul- psychological which at the sion same time constitutes an independently sufficient for a basis finding involuntariness consists of made to repeated promises the defendant by the trooper that defendant would receive the psychiatric needed, he help he punishment, not and that would not be imprisoned not is to solve (“that’s [prison] (sic) going your problem, “criminal,” not a it?”) because only had one; a mental impliedly “problem,” society, defendant, had not was at fault because it properly treated him in institutionalization. See the quotation from prior Malloy 424 U. S. Hogan,

v. supra, 7, 411 above at p. at (378 Smith, J. S. Ct. 32 N. State 542; supra, State v. at 1489); Cole, v. N. J. L. & A. (E. 1947). con

While are length place interrogation time which ditions of circumstances bearing upon totality true that only consideration must be given, station, last hour of the confrontation was at State police been almost immediately preceded by episode hour and about of at defendant’s work interrogation place two of at in the early hours detention the station police hours. But the here (cid:127)morning significant thing a in only small of the was part taped episode interrogation For most any sense. the legitimately investigative part, it was an effort to break plainly, bluntly persistently the will of his the defendant. The tactic was an appeal emotions and his need for medical help misleadingly the assurances of comforting the trooper, as defendant’s “brother,” reiterated at that he was hypnotically length, a not “criminal” and that he must requiring imprisonment unburden himself as the which would prelude “help” the be State to provided by assuage “problem.” Cf. Demo, Leyra v. 347 U. S. 74 S. Ct. 556, 560-561, 716, 98 Arizona, L. Ed. 948 Miranda v. supra, and see (1954); 384 U. S. Ct. 86 S. 450, at 1602. total physical collapse The of at after end, the defendant earlier assurances repeated to the trooper that he not was involved crime, evidences the effect of the cogently trooper’s A will blandishments defendant’s mind and emotions. not to resolved confess coerced into one to do that. just The of the opinion Appellate Division notes that “[t]he full tape must be read in its its transcript entirety aroma to be The savored.” members of this Court not only tape. read the to the entire transcript listened me, experience, corroborates the of impression Division as to the of commencement Appellate gentleness of the but it also inception communicates the colloqu3r, of a tone insistence and urgency, pres increase gradual sure in the voice as he down on his trooper’s subject. bears If the sole object of detection police interrogation is procurement of evidence crime the cannot be trooper faulted. But if the values underlying against privilege self-incrimination in a live, civilized still as society assuredly Deatore, do, State v. they 70 N. McCor see J. 100 (1976); Evidence, cit., mick on 315, op. supra, at p. they may not eroded by judicial solicitude for the affirmance of a convic tion apparently at guilty person expense dispassionate evaluation of contention that a confession from a extracted defendant by his free will. overbearing In my fallen judgment, State has far short of obli its to establish gation beyond a all) reasonable donbt at (if that did not of this happen the case defendant. If I am right, conviction must be reversed on that per se. ground Chapman 18, 23, v. 386 U. California, S. S. Ct. L. Ed. 2d 705 (1967).

Although strictly us, material to issue before there is a substantial possibility even were defendant ac- because of the quitted inadmissibility confession, of the could be civilly committed under B. 4:74E7 view of his mental prior history, circumstances in the instant ease pointing to in implication this murder and the “preponderance-of-the evidence” rule in applicable com- law, mitment as distinguished from that of a “beyond Krol, reasonable doubt” in criminal v. cases. See State 68 N. J. 236, 257 (1965). the alternative Accordingly, the Court in potentialities facing this matter determining (cid:127)are necessarily not confined the conviction or affirming the defendant free.2 setting

II The circumstances the substitution of an attending juror alternate the during deliberations the are jury of assume, certain, 2I here as is not at all that defendant could not convicted at a retrial of be without use the confession. 426

recounted in for the Court. In Justice Sullivan’s opinion view, B. my rule, facially not practice 1:8-2(d), invalid, of unconstitutional susceptible application, Ias believe occurred in this instance. has a

It if a renders verdict is obvious that which jury in of its deliber consulted with the course juror one ations that influence potential verdict is tainted by the stranger ultimate verdict of the of participation cannot the deliberations. In the instant situation principle, Eleven the jurors differentiated from that of just posed. an hour subject who concurred in the verdict were views, juror half to the and influence of the opinions effect, In he was a 13th See juror. excused. subsequently 199, v. N. Y. 278 N. Y. People Ryan, 100, 19 2d S. 2d 224 N. E. A. B. A. Standards (Ct. App. 1966); 2d to Trial Draft 2.7 Relating by Jury 1968) (Approved § Collins, 687, 131 at 81-82. But v. 17 Cal. 3d People see cert. den. Rptr. 782, 1976), Cal. 552 P. Ct. (Sup. 2d 1077, 429 U. Ed. (1977). S. 97 S. Ct. 50 L. 2d influence Indeed, eleven were to the jurors exposed those substantially of the for a discharged juror longer period juror. time than their deliberations the substituted not been Moreover, exposed the substituted had juror deliberations, jurors views influence the eleven exerted before he came upon mutually expressed scene.

In circumstances, present jury an admonition to what before their they forget and start happened deliberations anew with excise juror the substituted cannot taint ultimate verdict two respect objections cited above. rule

I have indicated that I do not believe the practice mean if a to be this I facially By juror invalid. at a to be excused in the deliberations very early stage trial could exercise his discretion as to whether judge that, so to the period elapsed upon short instructions anew, to deliberations jury begin entirely reconstituted extraneous factors would minimis become de right of jury trial also, substantially untrammeled. Possibly, original deliberations, extended although beyond very early stages, prior to substitution of a juror, could be held constitutionally harmless on motion for a new trial or on if the appeal deliberations of the went reconstituted jury on for many times period prior substitution. Such situation might been presented here if the delib- jury erations after the substitution and prior to verdict for a extended period days.

I regard practical of the rule to utility practice warrant it from a saving declaration of facial invalidity. However, fidelity the constitutional trial jury right me impels to hold the rule as here applied, unconstitutional for the reasons stated above.

I with agree the Court’s disposition question raised by defendant the failure concerning to read the supplemental to the charge juror. substituted I would affirm the of the Division. judgment Appellate P. J. A. D. (temporarily assigned), dissenting. Halpern, I am in complete accord with -that Conford’s dissent Judge defendant’s confession and, therefore, involuntary join him in Point I.

I also agree Conford that if B. Judge 1:8-2 (d) is facially valid1 it was unconstitutionally in this applied However, case. as I have reservations strong as to its facial validity, deem it advisable to supplement Judge Conford’s views on subject without discussing conflict which exists in jurisdictions other to by referred majority Judge Conford their opinions.

It essential that we note at the outset that N. A. J. S. 2A:74-2, and its predecessor statutes, a trial permitted discretion, judge, impanel jury not to exceed 1ln view of our conclusion that the confession was invalid it un necessary pass upon validity l:8-2(d). the facial of R.

428

14, in civil and criminal and for 'cases, “good cause” was excuse of them from service the number any provided to less than 12. the a not reduced At end of charge, No case provided. method 12 to decide the was selecting made in for a is the provision substituting juror statute after deliberations had commenced. When the statute was finally amended in (after 1975 this case had been com- here, insofar as it the pleted), any only has bearing change made to increase the of alternate eligible number jurors to such number as the trial judge deemed appropriate. B. is which was l:8-2(d) It in effect when the instant case was tried. The Eule a authorized trial in his judge, discretion, to substitute after submission alternate of the “* * * to case if a a jury juror or is juror dies ** * because ill or discharged he is otherwise to unable * * continue *.”2

If B. 1:8-2 (d) made no provision for substitution jurors after the jury’s deliberations as commenced, is the case in the federal courts, it unquestionably would facially valid.3 statute B. un- l:8-2(d) were doubtedly adopted aas practical method to avoid danger of a mistrial death, through or illness a incapacity of juror to as continue well as to preserve time, efforts expenses court, the attorneys, all litigants and 2The issue of whether the rule is invalid because it deals with practice procedure, substantive law rather than was not raised argued Winberry Salisbury, or and need not be v. See 5 decided. (1950), 877, 123, N. J. 240 cert. den. 340 U. S. 71 S. Ct. 95 L. Ed. (1950). 638 provides 24(c) 3Fed. R. Crim. P. that once a case is submitted jury significant discharged. alternates must be It proposal had been made that the federal rules be allow amended to procedure. However, being for substitution after submitted Supreme comment, questioned Court the Court committee constitutionality pro to whether it was as as satisfied to the of such vision, proposal See, Orfield, withdrawn. “Trial Jurors Cases,” 43, (1962). 29 R. D. Federal F. Criminal in a others involved protracted trial. The constitutionality Dolbow, of the statute was in State v. L. upheld 117 N. J. 560, 564 & A. (E. 669, 1937), appeal dismissed 301 U. S. Ct. 57 S. L. Ed. 1334 Until (1937). jury retires verdict, deliberate its if there is cause good excuse no juror, violated, statute or rule of law nor is there any conceivable to a the prejudice defendant or However, State. once the an jury begins and deliberations alternate is substituted the result possibilities prejudice of are unlimited. As ing an example, need only we consider happened what in the instant the case addition to deficiency found to exist by Judge Conford. 12 the trial were

Following judge’s charge, jurors the chosen (improperly, not as indicated prejudicially, the and majority opinion), sworn retired to deliberate. The trial then had court to two attendants sworn judge the four He to the explained alternates. alternates guard “* ** will they were to be and said we why sequestered and have to there upstairs keep take we will you you up to until the anyone without deliberations have been talking failed them concluded.”4 he to instruct not to Significantly, the with each We would discuss case other. be naive to that at a time they believe when alternates thought further would have no case probably connection not their on did views or they express personal guilt innocence of defendant be possible verdict to. Therefore, I am rendered. convinced that the alternate when 12, became member of the of he him panel brought with indicated, the views of the other As three alternates. we no went way knowing what during original or deliberations, what was when jury’s discussed the alter- them. It is the danger nate joined contamination which which guarded against must be be is to condemned any trial, testimony taken, outset before 4At jury judge testimony among instructed to trial not discuss the charged jury. until themselves after aas denial due process when we are required speculate if a verdict is view, tainted. In my in this ease was tried either 13 jurors or to N. J. contrary Const. B. (1947), Art. par. When 1:8-3(d). stake, individual’s freedom is at a court should whether he required speculate received a fair trial accordance with law and due process.

Another problem which deserves our considered judgment, since the issue novel, involved is whether the is circumstances the trial surrounding decision judge’s to excuse the juror were sufficiently compelling justify only action. The that ensued colloquy between the juror who was excused and the trial follows: judge May JUROR NUMBER 11: Question. I be dismissed from this jury appear affecting because I to be too nervous nervousness my judgment Except of this case? want be honest. I am nervous. my affecting judgment you I have to be It and if don’t honest. mind, replaced I would like to be with someone. you you THE COURT: Don’t think can render a fair verdict? No, JUROR NUMBER 11: I don’t. When a to juror seeks be excused after have deliberations is begun, it the trial to exert judge’s duty every reasonable effort to avoid the necessarily would consequences flow from a of the The trial granting request. must judge make careful into the inquiry substance the request. he must Admittedly, the issue with approach extreme caution and delicacy to avoid mistrial or tainting jury’s deliberations. Formally, such inquiry would be out of the jury’s made in presence, but of all presence counsel and defendant. See the discussion concerning the extent to which the trial judge should examine the juror’s Trent, reasons for to be wanting excused. State v. J.N. Super. 231 Div. Here, (App. 1978). the juror’s “* * * reason for to be asking excused I to appear be too nervous nervousness is affecting my judgment * * * mind, and if don’t I you would to be like replaced one trial asked judge only question someone.” The before him “Don’t think you can render excusing you fair verdict?”

It view when the my was made request compelling circumstances did not exist for excusing juror, defense counsel’s motion for a mistrial, based on existing record, should have been I assume granted. every juror murder case concerned and nervous to some degree, that does not warrant him from duty. his sworn excusing we Should be to what compelled speculate why and to this juror extent became suddenly nervous after a four-day trial and about minutes of deliberation? a trial Must bald judge accept his statement that is nervous and wants to replaced? No judge should do so because the many As speculative reasons that come mind. quickly an example only, he alone may have or wanted to acquit convict defendant and fellow jurors his took a contrary were position and him their pressuring views. adopt if Certainly, fact, were him would be excusing Or, could unwarranted. it be one of the deficiencies B. 1:8-3 that a (d) juror, were knowing alternates took waiting wings, what he considered easy way Or, out? other perhaps, 11 jurors it to him. suggested short, In we since must speculate reason, as trial action judge’s him excusing under existing was a circumstances mistaken exercise of discretion. Finally, am unable to that error result agree did not from the failure of the alternate juror to hear supple- mental charge. alternate majority jurors admits the should have been brought into the courtroom to hear the supplemental charge, but decide that no resulted. prejudice

The difference murder, between first second degree and the elements to be in connection are proven therewith, the most probably In important parts reality, of the charge. it is the part most difficult the charge of for the jury understand. The trial in judge the this charging jury on subject utilized verbatim the suggested by charge prepared on Model Jury Charges. Committee Court’s Supreme of six consists charge of this of transcript portion contrast, record. In in in

typewritten answering pages between “clarify the definition jury’s inquiry murder” he merely excerpted por- first and second degree two and one-half tran- (about tions of his original charge additional scribed if needed pages) they suggested for clarification to ask it.. law, any

I know no in the annals of the nor have of case attention, a waiver a been where absent my brought if was held valid all the the verdict jurors rendering verdict No did not hear trial entire instructions. judge’s sound reason which impel adopt should us presented law, a new of what been a prin- and discard has principle as to a funda- justice so rooted be deemed ciple deeply mental on pure when to do so is based required practice, The trial failure to conjecture. repeat deliberate judge’s alternate, the face of supplemental charge of B. for l:8-2(d), request defense counsel’s requirement mistrial, him to do so and the denial of the motion for of a fair trial and of law. deprived process due reasons reverse Accordingly, expressed, would conviction and order a new trial. J., I am part. and concurring ashman, P dissenting involuntary confession was this defendant’s convinced that dissent. Point I Conford’s Judge join for the substi- B. 1:8-2 (d), providing I conclude that juror for a after regular juror an alternate tution of its valid on constitutionally begun, deliberations have are members the original jury face. So as the long anew when deliberations instructed to begin specifically the defendant is not made, prejudiced, substitution is a mistrial at such late is avoided. stage the spectre economies made that the judicial possible should be noted It benefit of numerous will redound to the by procedure unnecessary cases will not he off put whose defendants retrial of a Thus, case. concur in the time-consuming conclusion of the see ante at 405-406' on majority, this point. am

However, I unable to thé accept premise of the alternate hear a juror failure differen- recharge and All tiating first second murder was harmless. degree — — jurors both must hear deliberating alternate the same orders and instructions of I join court. Judge dissent, see ante at 431-432 on Halpern’s point. For reversal and reinstatement conviction—Justices

Sullivan, Clifford, Scheeiber Handler —4. For Pashman Conford Judges affirmance—Justice Halpern —3.

Case Details

Case Name: State v. Miller

Court Name: Supreme Court of New Jersey

Date Published: May 24, 1978

Citation: 388 A.2d 218

Court Abbreviation: N.J.