State v. Johnson , 218 N.J. Super. 284 ( 1987 )

The opinion of the court was delivered by

BRODY, J.A.D.

We granted the State leave to file this appeal from an order suppressing an incriminating written statement that defendant had given the police. The statement had been the State’s chief evidence in a trial at which the jury found defendant guilty of murder and possession of a weapon for an unlawful purpose. Before imposing sentence, however, the trial judge granted defendant’s motion for a new trial on the ground of newly discovered evidence that bore on the voluntariness of the statement. The new evidence led the judge to suppress the statement.

Arthur Lytle’s bullet-riddled body was found on August 26, 1984, near Jack’s Tavern on 14th Street in Newark. Police suspected that people engaged in the drug trade used the tavern as a place to meet. Several unsolved murders and assaults had occurred there. Sergeant Charles Whitner and Detective Gary Miller of the Newark police homicide squad were assigned to find Lytle’s murderer. Their investigation produced a single lead: informers believed that shortly before he was killed, Lytle (who was also known as Hasaan) had robbed defendant. The detectives kept a lookout for defendant and finally found him months later in the Newark jail.

When Newark homicide detectives go on duty, they routinely examine a sheet containing the names of people who had been arrested in Newark within the past 24 hours. When Sergeant Whitner and Detective Miller went on duty Christmas day 1984 they saw defendant’s name on the list. He had been arrested for a drug offense unrelated to the homicide.

There is undisputed documentary evidence that after seeing defendant’s name on the 24-hour arrest sheet, the detectives then went to defendant’s cell and signed him out to their custody at 10:05 a.m. They brought him to the nearby homicide squad room for questioning. Defendant signed a written waiver of his Miranda rights at 12:39 p.m. that the detectives had prepared at 12:30 p.m. His written statement is in the form of typewritten questions and answers. It begins with the notation “Statement Began: 1250 hours.” All other material evidence bearing on the issue of voluntariness rests upon the credibility of the two detectives and defendant.

Defendant first raised the issue of voluntariness at a Miranda hearing (the first Miranda hearing) conducted on November 7, 1985, the day before his trial. Sergeant Whitner did not testify at that hearing or at the trial because he was on vacation.

Detective Miller was the State’s only witness at the first Miranda hearing. On his direct testimony he was asked what he did after seeing defendant’s name on the 24-hour arrest sheet. He replied that he and Sergeant Whitner brought defendant to the squad room from the cell-block, advised him of his rights, had him sign the written waiver of Miranda rights and advised him that he was a suspect in the Lytle homicide. Detective Miller testified that at first defendant denied participation in the crime, but then gave the written statement after the detective had told him that “the word is out in the street ... that the decedent had stuck him up for some money and drugs ... and he had Hasaan killed____” Detective Miller further testified that defendant was not physically harmed, threatened or given any promises.

Defendant’s written statement contains a detailed recital of his robbery. It describes how on August 23, 1984, Lytle rode up to him on a bicycle and asked for a quarter gram of cocaine. When defendant produced the “coke” from the “stash” where he had it hidden,

Hasaan pulled his pistol out and stuck it in my stomach, and said “You know what this is.” He took the quarter gram of coke and about eighty or ninety dollars. Then Hasaan got on his bike and rode off.

The statement then describes in detail how defendant arranged for Lytle’s murder. The day after the robbery he met Sylvester Johnson (Sylvester) in the Bronx and told him of the robbery. He had first met Sylvester three months earlier “in the Lincoln Correctional Center on 110th Street and Central Park, in New York City.” Defendant gave Sylvester a .32 caliber revolver with which Sylvester agreed to kill Lytle. “I told him that Hasaan was on 14th Street riding his bike.” Two or three days later Sylvester reported to defendant that he had met Lytle

on 14th Street, near Jack’s Tavern. They hugged each other and talked, then he shot him 3 times and when he fell he shot him three more times.

Detective Miller testified that he and Sergeant Whitner verified defendant’s story by having him identify a picture of Sylvester.

And we called Records and had a record check made of Sylvester Johnson and Records gave us a gallery number. And we called down to our Photo Room and had them make up a picture of Sylvester Johnson.

And when they were ready they let us know and Detective Whiten went down to the Photo Room and got the picture and brought it back up.

The detectives also obtained five photographs of other men and marked each with an identification number. They then placed the six photographs before defendant and asked him to pick out the photograph of Sylvester and state its identification number. Defendant selected the correct photograph. His statement describes this procedure and includes his identification of Sylvester’s photograph by number. All six photographs were admitted into evidence.

On cross-examination Detective Miller gave untrue testimony about when he and Sergeant Whitner removed defendant from his cell and about how long they had questioned him before defendant gave his written statement. When he testified Detective Miller obviously had forgotten that the cell-block log sheet showed that he and Sergeant Whitner had removed defendant from his cell at 10:05 a.m. The critical testimony follows:

Q. You brought this man over to the squad. What time did you bring him over?

A. Just prior to me giving him the Miranda.

Q. What is the time indicated on your Miranda?

A. Pardon?

Q. What time is indicated on your Miranda?

A. 12:30.

Q. Now at that time how much before 12:30 which is the time you started, I would assume you started to read this Miranda to him?

A. When we came in we gave him his Miranda.

Q. That is the very first thing you did was read him this?

A. Yes.

Q. That was 12:30, right?

A. Yes.

Q. And he signed it at 12:39. Is that correct?

A. Yes.

Q. And you are saying that that statement according to what has been marked started at 12:[5]0?

A. Yes.

Q. Is that correct?

A. Yes.

Q. Then you are telling this Court that you had not discussed this case with Mr. Johnson prior to reading the Miranda Bights to him. Is that correct?

A. Yes.

Q. And you only discussed this case with him after reading him his Miranda Bights which ended at 12:39?

A. Yes.

Q. And the statement commenced at 12:50. So that meant there was only eleven minutes, is that right, that you had to talk to Hubert Johnson?

A. Yes.

Q. And that during the course of those eleven minutes, you were able to relate to him the fact that all this information is out on the street, and that he is a suspect, and that the information out on the street that you had him hit and that there are people out there who are saying that the reason it happened is because there was a drug ripoff or a robbery of some sort where you were the victim, and that is why you had Litel hit, am I right?

A. Yes.

Q. And you are saying that you had enough time to get questions and answers of Hubert Johnson to formulate enough information to reduce it into a typed statement?

A. Yes.

Q. All that took place in eleven minutes?

A. Yes.

Q. And you told him that he was being investigated for a murder, right?

A. Yes.

Q. And all he said to you was I don’t know nothing about it and you are telling us that in less than eleven minutes of this little bit of interrogation, all of a sudden here is a guy who was in jail for just a drug case and is now suddenly confessing to being involved in a murder?

A. Yes.

Q. Isn’t it a fact, Officer, that you brought Mr. Johnson over to the cell—brought Mr. Johnson over [from] the cell block much earlier that day?

A. No, it isn’t.

Q. It is not? Do you have the log sheets when you signed him out of the cell block?

A. No, I don’t.

Q. Are they available, do you know?

A. They are at the cell block.

The log sheet showing that Sergeant Whitner and Detective Miller signed defendant out of the cell block at 10:05 a.m. was the “newly discovered evidence” that defendant’s attorney first presented to the court after the trial in support of defendant’s successful motion for a new trial.

The State now concedes that Detective Miller’s testimony was untrue because the officers did not remove defendant from his cell a few minutes before 12:30 p.m. They removed him at 10:05 a.m. Thus defendant was in their custody about two hours, not merely eleven minutes, before he began to give the written statement.

One can draw at least two inferences from Detective Miller’s testimony. He may have forgotten what time the officers removed defendant and thoughtlessly went along with defense counsel’s leading questions, or he may have remembered that he and Sergeant Whitner had defendant in their custody for about two hours before he gave his written statement and deliberately concealed this fact to give the impression that they did not have time to coerce the statement from him. Neither inference reflects credit on the witness. The former inference renders the witness subject to severe censure but does not affect the admissibility of the statement. The latter inference would render the statement involuntary and therefore inadmissible.

A trial judge must suppress a statement if he has a reasonable doubt that it is voluntary. State v. Yough, 49 N.J. 587, 600-601 (1967). The trial judge found that he had a reasonable doubt so we must first examine all the relevant evidence to determine whether the latter inference may fairly be drawn as a basis for reasonable doubt.

Defendant testified after Detective Miller at the first Miranda hearing. He testified that the officers picked him up “around ten, 10:30.” After he told the officer he knew nothing about the homicide, one of the officers “was beating me with a telephone book, him and his partner punching me on my body.” He agreed with his attorney that the officers screamed at him. He further testified on direct examination that after he refused to confess to the homicide, they took him to another room:

A. When I thought they was taking me back to the cell block they took me from the desk, the chair I was sitting at, they took me as if I was going back down stairs.

Q. Were you handcuffed?

A. Yes.

Q. What happened?

A. They took me in a little room, they handcuffed my hands up against the wall, pulled my pants down and tried to stick a nightstick up my ass.

Q. And then what did you do?

A. I told them I’d sign anything because I didn’t want them to stick no bat up my ass. And they took me back upstairs. He wrote up the statement and had me sign it.

Q. What time did this happen?

A. 12:39.

Q. Is that when you signed the Miranda warnings?

A. Yes, and the statements.

Q. What?

A. And the statement.

On cross-examination defendant gave additional detail about being hit with a phone book and testified that the night stick had penetrated his anus “[l]ess than a half inch” when he agreed to sign a statement:

Q. How long was this going on if you can remember?

A. After they did this and I seen they was sincere, this is when I told them I would sign the statement.

Q. And then what did they do? Did someone give you a statement to sign?

A. They took me back to the desk. They had already brought it up and they gave me those papers and I signed them.

Q. So up to the time that they shoved the stick into your anus you hadn’t said anything to them. Is that correct? That is correct, is that right? A. Yes.

Q. And after you realized that they were serious and they were shoving the stick into you, it was at that point that you said, I will sign anything. Is that right?

A. Eight.

Q. And who brought the papers for you to sign to you at that time? A. The officer here.

Q. I’m sorry.

A. The officer sitting here.

Q. Detective Miller?

A. Yes.

Q. And about how much time went by between the time that they shoved, that someone shoved the stick into you, from that time till the time you actually put your signature on the papers, how much time went by?

A. Less than a couple of minutes.

Q. Just a couple of minutes?

A. Yes.

Q. And after you signed the papers what happened then?

A. They took me back to the cell block.

THE COURT: Do I gather then that this statement was prepared without you giving them any information?

THE WITNESS: Yes.

THE COURT: Had you ever been incarcerated in New York?

THE WITNESS: Yes, sir.

THE COURT: Whereabouts?

THE WITNESS: I was in a different prison but I was at the Halfway House on 110th Street at Lincoln Correction Center.

THE COURT: Did you meet a Sylvester Johnson there?

THE WITNESS: Yes, sir.

THE COURT: How would the police know that if you didn’t tell them? THE WITNESS: How would they know? They already knew when they came to me, sir.

THE COURT: That you had met him?

THE WITNESS: No, that we was seeing each other on the streets. They said they know the whole story. They already got the whole story.

THE COURT: I have nothing further.

Following defendant’s testimony, the trial judge found that his statement was voluntary beyond a reasonable doubt and it was used to convict him at the trial.

In granting the motion for a new trial the trial judge rejected the State’s argument that at the Miranda hearing defendant’s attorney had referred to the cell-block log sheet and therefore it did not qualify as newly discovered evidence. The judge was obviously disturbed that the log sheet showed that Sergeant Whitner and Detective Miller had removed defendant from his cell at 10:05 a.m. and not shortly after noon as Detective Miller had testified. The judge’s reasons for granting the motion were brief:

THE COURT: All right. Material. The discussion about the time period is material. It’s relevant. Accordingly, the motion for a new trial is granted.

[DEFENDANT’S ATTORNEY]: Thank you.

THE COURT: I want you to report, Mr. [assistant prosecutor]—

[ASSISTANT PROSECUTOR]: Yes, sir.

THE COURT: —to [the prosecutor], the testimony together with the log book. Do you understand?

[ASSISTANT PROSECUTOR]: I understand. You don’t have to order me to do it. It’s a matter of course any time we have an extraordinary remedy that is granted we immediately report that.

THE COURT: Tell [the prosecutor] I’m concerned about the testimony, vis-a-vis the log book.

[ASSISTANT PROSECUTOR]: Just for the record, I think that it was very, very honest of the officer to tell defense counsel they could go to get their evidence. He was very frank about that.

THE COURT: No question.

[ASSISTANT PROSECUTOR]: He didn’t try to hide it.

THE COURT: I said I’m concerned about the time interval, because I was given the impression that he was taken out [of] the cellblock a few minutes before.

Additional testimony on the issue of voluntariness was taken at a second Miranda hearing before the retrial, which resulted in the suppression order under appeal. Sergeant Whitner and Detective Miller testified for the State. Their testimony need only be summarized.

Sergeant Whitner testified that he and his partner removed defendant from the cell-block about 10:00 a.m. After bringing him to the homicide squad room, the sergeant advised defendant orally of his Miranda rights. The sergeant then began to talk to defendant about various serious crimes that had occurred at Jack’s Tavern including the murder of Lytle. At one point he permitted defendant to telephone his wife. He and his partner were interrupted in their questioning of defendant by various other police matters because they were part of a skeleton crew that was on Christmas duty. After defendant expressed a willingness to give a written statement, Detective Miller typed the questions and defendant’s answers. The statement was completed about 2:00 p.m. after which defendant was returned to his cell. Whitner testified that defendant voluntarily gave the statement. He denied coercing or harassing defendant in any way.

At one point the trial judge rejected the State’s offer of proof that Sergeant Whitner would testify to facts that demonstrate that defendant’s statement contained “unique qualities ... that could not have been fabricated by the police.” The judge excluded the evidence for the reason that he was concerned with voluntariness and not the truth of the statement:

THE COURT: I am totally concerned about the voluntariness of the statement at this point.

[ASSISTANT PROSECUTOR]: Yes, sir.

THE COURT: I already commented previously during the trial on that. ^[1]

[ASSISTANT PROSECUTOR]: Thank you. So you do not wish the State to get into the rest of Sylvester?

THE COURT: That’s correct.

Detective Miller testified to the same effect as Sergeant Whitner. He explained his earlier untrue testimony as follows:

A. Well, I was just in error. I was in error when I testified before. And now that I see this report—

Q. Does it refresh your recollection?

A. Yes.

Defendant’s testimony at the second Miranda hearing was limited to denying that he telephoned his wife during the interrogation. Otherwise defendant’s attorney was content to rely on defendant’s testimony given at the first Miranda hearing.

After noting Detective Miller’s untrue testimony given at the first Miranda hearing, the judge granted defendant’s motion to suppress defendant’s written statement. His findings and reasons follow:

Now, I do recall and have the transcript of the testimony of Hubert Johnson, and a person may believe part of a witness' testimony and disbelieve part of it, I am satisfied and for the purpose of this hearing that Mr. Johnson was accurate when he said he was brought over.

Now, as to what transpired after he was brought over, I’m not sure that I know. But the burden on the State is on the State ... on the question of voluntariness of the Defendant’s confession will formally have to be rested on proofs beyond a reasonable doubt, the standard reasonably established in State v. Yough, 49 New Jersey 587, 601-602 (1967).

Under the circumstances, this Court cannot say that it feels beyond a reasonable doubt that his confession was voluntary in view of this discrepancy between the testimony under which I originally allowed it.

The recollection of some 11 minute period, yet, that it was the period and resolution today, this court will not and cannot in good conscience say I am satisfied beyond a reasonable doubt that the confession was voluntary.

Accordingly, it will not be allowed in evidence.

We now consider whether the evidence in its totality can fairly raise a reasonable doubt that defendant’s statement was given without coercion. Defendant’s testimony that he was beaten and threatened with torture, if believed, would of course establish thé involuntariness of his statement. Detective Miller may have testified falsely at the first Miranda hearing to give the false impression that before defendant gave the statement he was not in the officers’ custody long enough for them to have beaten and threatened him. If Detective Miller’s testimony was untrue for that reason, its falsity would corroborate defendant’s story.

Defendant’s testimony, even if not entirely credible, could generate a reasonable doubt as to the voluntariness of his statement. We are troubled, however, by the absence of any finding by the trial judge that defendant’s testimony concerning his brutal treatment was at all credible. Indeed it may be surmised that the judge’s acceptance of defendant’s credibility did not extend beyond the truth of his testimony regarding the time when the detectives removed him from his cell. He said in this regard, “[A] person may believe part of a witness’ testimony and disbelieve part of it, I am satisfied and for the purpose of this hearing that Mr. Johnson was accurate when he said he was brought over.” If defendant’s testimony that he was beaten and tortured, when considered with all the evidence, was not sufficiently credible to raise at least a reasonable doubt that his statement was voluntary, the judge should not have suppressed the statement.

We do not mean, as our dissenting colleague says we mean, that a defendant has the burden of proving that his statement was involuntary. The dissent confuses the State’s burden of proving voluntariness with its burden of proving guilt. The burdens are not identical. To discharge its burden of proving a defendant’s guilt, the State must overcome the legal presumption of his innocence and must persuade the trier of fact beyond a reasonable doubt that he engaged in the specific criminal conduct with which he was charged. United States v. Fiovaranti, 412 F.2d 407, 418-419 (3rd Cir.1969), cert. den. sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969).

There is no comparable presumption that a defendant’s statement was given involuntarily. Once a State’s witness testifies in general terms that the statement of a defendant was voluntary, to suppress that statement there must be some credible evidence that the police engaged in specific conduct that rendered the statement involuntary. The State cannot refute beyond a reasonable doubt nonexistent evidence of involuntariness. The requirement that the record contain some credible evidence that the police wrongfully engaged in specific conduct that broke the defendant’s will does not saddle the defendant with the burden of proving that his confession was involuntary any more than the familiar requirement that the record of a trial contain some credible evidence of an affirmative defense saddles the defendant with the burden of proving his innocence. See State v. Humanik, 199 N.J.Super. 283, 292-293 (App.Div.1985), certif. den. 101 N.J. 266 (1985) (proof of nonexistence of affirmative defense has never been constitutionally compelled).

If at the conclusion of a voluntariness hearing there is some credible evidence that the police wrongfully forced a defendant to confess, that evidence may engender a reasonable doubt that the confession was voluntarily given. If the judge has such a doubt, he must suppress the confession. To warrant suppressing the confession here, the trial judge must find that the falsity of Detective Miller’s testimony at the first Miranda hearing infused a semblance of credibility into defendant’s otherwise questionable testimony that he confessed as the result of police brutality. If, however, the trial judge gave no credence to defendant’s testimony that the police forced him to confess, the judge erroneously suppressed the confession even though he did not believe some of Detective Miller’s testimony.

We are also troubled by the absence of any finding as to what inference the judge drew from Detective Miller’s untrue testimony. As we previously noted, the testimony may have been false because the detective simply forgot the time when he and Sergeant Whitner removed defendant from his cell and thoughtlessly yielded to the pressure of defense counsel’s leading questions. That inference is strengthened by the candid reference in the detective’s testimony to the cell-block log where positive proof could be found that his testimony was erroneous. On the other hand, the detective’s testimony may have been false to cover up the fact that the detectives used force to obtain the statement. Ordinarily we would assume that a judge’s unstated supporting findings were consistent with his ultimate finding but the trial judge said nothing to indicate that he understood that an inference could reasonably be drawn from Detective Miller’s untrue testimony that would be consistent with the voluntariness of the statement.

That brings us to our third concern. Particular evidence may raise a reasonable doubt in the mind of a trier of fact that is dispelled by other evidence. The trial judge said nothing to indicate that he had looked beyond Detective Miller’s untrue testimony. He concluded simply that he had “a reasonable doubt that [defendant’s] confession was voluntary in view of this discrepancy between the testimony under which I originally allowed it.”

For instance, it is highly unlikely that defendant was testifying truthfully when he said that the detectives had prepared the statement in advance. If both detectives were constantly coercing him as he described, they would have had to prepare the three-page statement before they removed him from his cell. Thus both detectives would have had to be lying when they said that they did not know defendant was available to them until they saw his name on the 24-hour arrest sheet just before they left to pick him up. Also, the State offered to prove that the detectives would have had to know facts contained in the statement that they would not be expected to know unless those facts had been given to them by defendant. It appears from his questioning of defendant at the first Miranda hearing that the judge was impressed by this point, but at the second hearing he never mentioned it. Finally, the elaborate detail of events purportedly described by defendant in the statement and the detailed description of how he selected the photograph of Sylvester, whom defendant admitted he met in the New York half-way house named in the statement, tend to belie defendant’s key testimony that the detectives fabricated the statement in advance.

We do not mean to suggest that a judge having a reasonable doubt must make the kind of findings that are expected when he is satisfied that there is no reasonable doubt of the voluntariness of a statement. When a trial judge is free of reasonable doubt on the question of voluntariness, he should make findings as to how the statement was given and explain away evidence that may have raised a reasonable doubt. State v. Hodgson, 44 N.J. 151, 160 (1965), cert. den. 384 US. 1021, 86 S.Ct. 1929, 16 L.Ed.2d 1022 (1966). But when a judge has a reasonable doubt that a statement is voluntary, he does not have to make findings as to how the statement was given—he may not be able to say how the statement was given. The judge should, however, articulate the evidential basis of his doubt, relate that evidence to the voluntariness of the statement and say enough to indicate that he considered all the evidence, particularly the major evidence that could dispel his doubt. See, e.g., State v. Davis, 380 So.2d 607, 609-610 (La. 1980); People v. Brown, 96 Misc.2d 244, 408 N.Y.S.2d 1007 (Co.Ct.1978); United States v. Schipani, 289 F.Supp. 43, 60-61 (E.D.N.Y.1968). That was not done here.

We can say with assurance that the trial judge did not consider all the evidence that could have dispelled his doubt because he excluded some such evidence. The State should have been permitted to prove that defendant’s statement referred to facts that the detectives could not have known. The judge excluded the evidence because he mistakenly believed that it was offered to prove the truth of defendant’s statement. In that regard, the judge correctly concluded that if the statement was involuntary, it is inadmissible regardless of its truth. The evidence was not being offered to prove the truth of the statement, however, but the falsity of defendant’s testimony that the detectives had made up the statement without having obtained any facts from him. Defendant’s credibility was relevant to the ultimate issue' of voluntariness. Even if Detective Miller’s credibility was impaired, there can be no substance to defendant’s claim of beating and torture unless defendant’s credibility is also evaluated.

We sense in this record that the trial judge was not only understandably affronted by the State’s false evidence at the first Miranda hearing but that his sense of outrage, however justified, may impair his ability to reconsider his prior findings. We therefore believe it best that on remand there be a new Miranda hearing by a new fact-finder. See New Jersey Div. of Youth and Family Services v. A. W., 103 N.J. 591, 617 (1986).

The order suppressing defendant’s statement is reversed. The matter is remanded for further proceedings in accordance with this opinion.

[1] 1We have not been furnished with a full transcript of the trial.