State v. Cary

• Decision Date: 06 June 1967
• Docket Number: No. A--155,A--155
• Citation: 49 N.J. 343,230 A.2d 384
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Paul Gordon CARY, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 343

49 N.J. 343

230 A.2d 384

STATE of New Jersey, Plaintiff-Respondent, v. Paul Gordon CARY, Defendant-Appellant.

No. A--155.

Supreme Court of New Jersey.

Argued April 24, 1967.

Decided June 6, 1967.

Richard S. Semel, Springfield, for appellant (Oscar F. Laurie, Summit, attorney, Richard S. Semel, Springfield, on the brief). at Michael Diamond, Asst. Pros., for respondent (Leo Kaplowitz, Union County Pros., attorney, Michael Diamond, Newark, on the brief).

The opinion of the court was delivered by

PROCTOR, J.

This is an interlocutory appeal in a murder case from two pretrial orders of the Union County Court granting motions by the State compelling defendant to submit to a blood-grouping test and to a recording of his voice. We granted defendant's motion for leave to appeal.

Defendant was indicted for the murder of Joann Tyler by the Union County Grand Jury on April 21, 1966. His trial was set for December 5, 1966. This date was adjourned until December 7 to accommodate defense counsel. On December 7 the trial judge, on being informed that the State anticipated a trial lasting some three weeks and into the Christmas recess and holiday period, adjourned the trial date to January 16, 1967.

The State then moved for an order to compel defendant to submit to a recording of his voice. The assistant prosecutor in his affidavit in support of this motion deposed that: 1) the police had a tape recording of a male voice telephoning the police station with information about the crime; and 2) an expert in voice identification could determine whether defendant was the telephone caller by comparing the tape recording held by the police with a tape recording of defendant's voice.

The State also moved for an order to compel defendant to submit to a bloodgrouping test. In his affidavit in support of this motion the assistant prosecutor deposed that both the victim and her assailant had suffered wounds and that knowledge of defendant's blood type might be probative at trial.

These motions were argued after due notice to the defendant and with full opportunity for defense counsel to be heard. The trial judge granted both motions. The defendant was ordered to submit to a recording of his voice, to speak in a normal, audible, conversational tone, to answer questions relative to his place of birth and present military status, and to say on three occasions during the recording: 'Ah, I would like to, duh, the--I would like to talk to Sergeant on desk.' The order prohibited any questions relating to guilt or innocence of the crime charged. The order provided that defense counsel was to receive due notice of the date of the recording and should be present at the recording together with--if defendant so requested--a qualified expert to act on behalf of defendant. The order further provided that if the State decided to use any evidence obtained as a result of the recording, it must give defense counsel copies of all expert reports within five days of receipt by it of such reports and furnish defense counsel full opportunity to inspect and use all relevant recordings. The order also required that the reports of defense experts be made available to the State.

The order compelling defendant to submit to a blood test provided that the blood sample 'be taken by a medical doctor within the confines of an accredited hospital using all the usual medical safeguards to prevent infection; that the defendant and the attorney for the defendant be given reasonable notice of the time and place of the taking of the sample so that the latter may be present, that a report be made as to the result of the sample being tested and a copy of said report be sent to the attorney for defendant within five days of its receipt by the Office of the Prosecutor * * *'

On this appeal defendant argues that the orders compelling him to submit to blood and voice tests violate his right to due process and his privilege against self-incrimination.

The New Jersey statute which grants a privilege against self-incrimination contains the following exception:

'(N)o person has the privilege to refuse to submit to examination for the purpose of discovering or recording his corporal features and other identifying characteristics or his physical or mental condition * * *' N.J.S. 2A:84A--19(a), N.J.S.A.

We have held that compelling a person to speak for purposes of a voice identification is within this exception because the physical properties of a person's voice are 'identifying characteristics' and constitute a 'physical condition' not privileged. State v. King, 44 N.J. 346, 357, 209 A.2d 110, 9 A.L.R.3d 847 (1965). In the King case we further held that the constitutional rights of a defendant in a criminal case are not violated when he is compelled to speak so that a witness may hear the qualities of his voice. Id., at pp. 357--358, 209 A.2d 110; King v. Pinto, 376 F.2d 593 (3 Cir. 1967) (same case in federal habeas corpus proceedings). We have also held that the taking of blood for a test is not covered by the privilege against self-incrimination. State v. Blair, 45 N.J. 43, 46, 211 A.2d 196 (1965); State v. Alexander, 7 N.J. 585, 593, 83 A.2d 441 (1951), cert. denied 343 U.S. 908, 72 S.Ct. 638, 96 L.Ed. 1326 (1952). In other cases we have repeated the reasoning of King and Blair that a person's voice and blood are physical characteristics like fingerprints, are not testimonial in character, and are therefore not protected from disclosure by statutory or constitutional prohibitions against self-incrimination: when a person's blood and voice are tested for their physical properties, the person is not required to vouch for the truth or falsity of anything. State v. Mark, 46 N.J. 262, 276--277, 216 A.2d 377 (1966); State v. Fioravanti, 46 N.J. 109, 119--120, 215 A.2d 16 (1965), cert. denied 384 U.S. 919, 86 S.Ct. 1365, 16 L.Ed.2d 440 (1966). See 8 Wigmore, Evidence § 2265, 391 and 396 (McNaughton rev. 1961).

The United States Supreme Court in an opinion by Justice Brennan has recently upheld the constitutionality of compelling a person to submit to a blood test. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Defendant was arrested at a hospital while receiving medical attention for injuries he suffered in an automobile accident. The arresting officer ordered a sample of blood to be taken by a physician to determine the percentage of alcohol in defendant's blood. Defendant on advice of his counsel refused to consent to the test, and the sample was taken over his express objection. Evidence obtained as a result of the blood test was admitted at defendant's trial where he was found guilty of driving an automobile while under the influence of intoxicating liquor.

The Court held that the compelled test did not deprive defendant of his privilege against self-incrimination:

'We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.' Id., 384 U.S., at p. 761, 86 S.Ct., at p. 1830, 16 L.Ed.2d, at p. 914.

Because there was no privilege to refuse to submit to the test, defendant was not denied the assistance of counsel when the erroneous advice of his attorney was not respected. Id., 384 U.S., at pp. 765--766, 86 S.Ct. 1826, 16 L.Ed.2d, at p. 917. The Court recognized that because the test required an intrusion into the body of defendant, under the Fourth Amendment it must be supported by probable cause and must be conducted so as to minimize any intrusive effect. The Court held that the circumstances justified a search without a warrant and that the procedure followed was not unreasonable. Id., 384 U.S., at p. 772, 86 S.Ct. 1826, 16 L.Ed.2d, at p. 920.

Defendant in the present case argues that compelling him to submit to a blood test violates his right to due process and cites for support Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). He seeks to distinguish Schmerber by saying that if he physically resists the test, his blood cannot then be constitutionally taken, whereas defendant in Schmerber, after refusing his consent, offered no resistance. To take his blood against his active resistance, defendant here continues, will transgress that 'sense of justice' which Rochin required under due process.

In Rochin the use of evidence obtained by pumping a defendant's stomach in a manner the Court characterized as 'brutal' was deemed to be a denial of due process in that the conduct of the police 'shocks the conscience.' The blood test proposed in the present case is far different from the abusive procedure used in Rochin. As the Supreme Court said in a subsequent case when affirming the admissibility of results of a blood test made without the consent of the accused against the challenge that the procedure violated the Rochin doctrine:

'The blood test procedure has become routine in our everyday life. It is a ritual for those going into the military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors. Likewise, we note that a majority of our States have either enacted statutes in some form authorizing tests of this nature or permit findings so obtained to be admitted in evidence. We therefore conclude that a blood test taken by a skilled technician is not such 'conduct that shocks the conscience,' Rochin, supra, 342 U.S. at 172, 72 S.Ct. at 209, nor such a method of obtaining evidence that it offends a 'sense of justice' * * *.' Breithaupt v. Abram, 352 U.S. 432, 436--437, 77 S.Ct. 408, 410, 1 L.Ed.2d 448, 451--452 (1957).

The motion for the blood test in the...