State v. Driver

• Decision Date: 19 July 1962
• Docket Number: No. A--111,A--111
• Citation: 183 A.2d 655,38 N.J. 255
• Parties: The STATE of New Jersey, Respondent, v. Reginald O. DRIVER, Jr., Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 255

38 N.J. 255

183 A.2d 655

The STATE of New Jersey, Respondent, v. Reginald O. DRIVER, Jr., Defendant-Appellant.

No. A--111.

Supreme Court of New Jersey.

Argued April 23, 1962.

Decided July 19, 1962.

John J. Barry, First Assistant Prosecutor, for respondent (Stanley E. Rutkowski, Mercer County Prosecutor, attorney).

Edward B. Meredith, Trenton; for defendant-appellant (Hervey S. Moore, Jr., Princeton, and Edward B. Meredith, Trenton, attorneys).

The opinion of the court was delivered by

FRANCIS, J.

Defendant, Reginald O. Driver, Jr., was convicted of murder in the first degree arising out of a robbery, and pursuant to the jury's recommendation was sentenced to life imprisonment. He has appealed directly to this court. R.R. 1:2--1(c).

The victim, Jacob Mayer, was manager of the A & P Supermarket on South Broad Street in Hamilton Township, Mercer County, New Jersey. On Good Friday, April 4, 1958, the store remained open until 10 P.M. Mayer left at about 10:30 P.M., after locking the door and taking the key with him. He drove away in a 1947 Dodge belonging to his father-in-law. Mrs. Mayer was already in bed when her husband reached home. The sound of the key in the kitchen door awakened her. She heard her husband's voice but the record does not show how soon that was after she awakened. There was nothing about his tone which indicated apprehension. He said, 'You guys' or 'Oh, you guys.' (On motion, the trial court struck out the reference to his comment. The ruling was improper, as the statement was part of the Res gestae. It was an undesigned incident of the criminal event that was beginning to unfold. Its nature and apparent spontaneity might be taken by the jury as an indication that Mayer's visitors were known to him. See Hunter v. State, 40 N.J.L. 495, 538, 539 (E. & A.1878); State v. Doro, 103 N.J.L. 88, 93, 94, 134 A. 611 (E. & A.1926); State v. Stephan, 118 N.J.L. 592, 194 A. 273 (E. & A.1937); 1 Underhill, Criminal Evidence (5th ed. 1956) § 266.) Shortly thereafter she observed the lights of an automobile going out of her driveway. When her husband had not returned by 2:30 A.M., she made an unsuccessful search for him, and finally called the police.

Early on the morning of April 5 the police went to the A & P Supermarket with the Assistant Manager. There they found the safe had been opened and the cash usually kept there was missing. A subsequent audit fixed the loss at $10,468.21 in cash and $505.17 in checks.

Around 7 A.M. on April 5, a fisherman noticed a burned 1947 or 1948 Dodge coupe standing near a footbridge between Carnegie Lake and the Delaware-Raritan Canal in Princeton Township. The car was still smoking. The police were not notified, however, until the following day, Sunday, when another visitor to the area saw it and made a report. The waters of the lake and the canal were then searched until April 10, when the body of Mayer was found in the canal in about eight feet of water. Examination showed a laceration of his scalp above the right ear. Two-inch adhesive tape had been wound around his wrists, mouth, eyes, nose and neck. The tape around the neck was very tight and twisted. Death had not resulted from drowning but from strangulation. The autopsy physician indicated that the tape on Mayer's neck had prevented breathing, and had probably produced death in three to five minutes.

Police investigation uncovered circumstances and alleged admissions to third persons which pointed toward involvement in the crime of Driver and possibly his brother-in-law, David Mills. Interrogation of Driver, to be considered hereafter in more detail, allegedly produced further inculpatory statements, and he was charged with murder on December 11, 1959. Defense attorneys were not assigned until May 1960. A four-week trial began on May 15, 1961, and resulted in the verdict referred to above. Numerous grounds for reversal have been presented. Some of them, to be discussed herein, are meritorious and require a new trial.

I.

REFERENCES TO THE LIE DETECTOR TEST.

In the Assistant Prosecutor's opening to the jury, he detailed certain inculpatory admissions about the killing which Driver was said to have made to his mother-in-law, Mattie Lee Scott. The jury was told that her statement with respect to the admissions had been recorded on tape by the police and that later the recording was run for the defendant to hear. Then, according to the opening, when Driver disputed their truthfulness, he was asked to 'clear this up. Take a lie detector test, and he refused.' The Assistant Prosecutor pursued the matter further, saying that as various portions of the tape were played for Driver the request for such a test was repeated and 'every time he refused.'

No objection was made by defense counsel but we regard the references as so highly improper as to constitute plain error. The State's case against Driver was based upon circumstantial evidence to a substantial degree and alleged oral admissions by him. In such a case particularly, to tell a jury of laymen at the very outset of the trial that defendant refused a number of times to take a lie detector test was to create a probable aura of prejudice which would permeate the proceeding to the very end.

The results of polygraph tests, whether favorable or unfavorable to an accused, are uniformly held inadmissible. We are aware of no jurisdiction which holds to the contrary, and none has been cited by the State. Basically, the reason for rejection is that the lie detector has not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. State v. Walker, 37 N.J. 208, 214, 216, 181 A.2d 1 (1962); State v. Arnwine, 67 N.J.Super. 483, 171 A.2d 124 (App.Div.1961); State v. Varos, 69 N.M. 19, 363 P.2d 629 (Sup.Ct.1961); State v. Trimble, 68 N.M. 406, 362 P.2d 788 (Sup.Ct.1961); Mattox v. State, 240 Miss. 544, 128 So.2d 368 (Sup.Ct.1961); State v. Foye, 254 N.C. 704, 120 S.E.2d 169 (Sup.Ct.1961); People v. Aragon, 154 Cal.App.2d 646, 316 P.2d 370 (D.Ct.App.1957); People v. Wochnick, 98 Cal.App.2d 124, 219 P.2d 70 (D.Ct.App.1950); Annot. 23 A.L.R.2d 1306; 1960 A.L.R.2d Suppl. Service 1998; 1962 A.L.R.2d Suppl. Service 580; compare State v. Levitt, 36 N.J. 266, 275, 176 A.2d 465 (1961).

If the results of polygraph examinations are not competent evidence, A fortiori, refusal by a defendant in a criminal case to submit to one cannot be made the subject of testimony. In terms of degree of prejudice, the average jury, unfamiliar with the present scientific uncertainty of the tests, might very well be even more affected by proof of a defendant's refusal to take the test than by the evidence of results adverse to him coupled with proof of its scientific imperfection. A refusal might be regarded as indicating a consciousness of guilt--undoubtedly the reason here why the Assistant Prosecutor placed such emphasis upon it in his opening. Moreover, his remarks were calculated to prejudice the jury by implying that the mechanical device was the ultimate in tests for the truth.

In State v. Kolander, 236 Minn. 209, 52 N.W.2d 458, 465, (Sup.Ct.1952), evidence of the defendant's unwillingness to take the test was admitted but with a cautionary instruction that no adverse inference was to be drawn therefrom. The Supreme Court reversed with quotable pertinence to the present case:

'The state concedes that the results of a lie-detector test would not be admissible, but contends that it may nevertheless be shown that defendant refused to take such test, since such refusal is evidence of a consciousness of guilt similar to evidence of flight. With this we cannot agree. Much the same proposition was advanced in People v. Wochnick, 98 Cal.App.2d 124, 219 P.2d 70, supra. In that case, an officer testified that defendant had been told that he had been placed on the lie detector for a test and that there was a violent reaction when he was shown a certain exhibit; and that when he was asked for an explanation of such reaction he stated that he could not explain it. The trial court instructed the jury that it could not consider that portion of the conversation relating to the lie-detector test as indicating whether or not there was any reaction to any technical test. In holding that it was reversible error to admit the evidence, the California court said * * *: 'Despite the instruction of the court, the evidence of the partial results of the lie detector test with respect to defendant's reaction upon being shown the murder weapon was indelibly implanted in the minds of the jurors and could not but have had a prejudicial effect.'

The same is true here. * * * The impact upon the minds of the jurors of a refusal to submit to something which they might well assume would effectively determine guilt or innocence, under these conditions, might well be more devastating than a disclosure of the results of such test, if given after a proper foundation had been laid showing how the apparatus functioned.'

See also, Mills v. People, 139 Colo. 397, 339 P.2d 998 (Sup.Ct.1959); Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442, 445, (Sup.Ct.1956); People v. Aragon, supra, 316 P.2d, at p. 379; State v. Foye, supra, 120 S.E.2d, at pp. 172, 173.

Under the circumstances, we regard the remarks in the opening concerning the lie detector test as possessing such horrendous capacity for prejudice against the defendant as to constitute plain error. Mattox v. State, supra, 128 So.2d, at p. 373; State v. Varos, supra, 363 P.2d, at p. 631; Mills v. People, supra, 339 P.2d, at pp. 999, 1000; and see, State v. Corby, 28 N.J. 106, 108, 145 A.2d 289 (1958).

The shadow cast by the improper opening remarks deepened during the course of the trial. The Prosecutor had told the jury that tape recording of Driver's mother-in-law's statement was played to him in sections. At the completion of an inculpatory admission attributed to him, he would be interrogated about it and,...