State v. Falco

• Citation: 60 N.J. 570,292 A.2d 13
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Nicholas FALCO, Defendant-Respondent.
• Decision Date: 19 June 1972
• Court: United States State Supreme Court (New Jersey)

Page 570

60 N.J. 570

292 A.2d 13

STATE of New Jersey, Plaintiff-Appellant, v. Nicholas FALCO, Defendant-Respondent.

Supreme Court of New Jersey.

Argued March 6, 1972.

Decided June 19, 1972.

Michael H. Stieber, Assistant Prosecutor, for appellant (Joseph P. Lordi, Essex County Prosecutor, attorney).

Robert R. Blasi, Newark, for respondent (Elmer J. Herrmann, Jr., Newark, on the brief; Herrmann & Blasi, Newark, attorneys).

The opinion of the Court was delivered by

WEINTRAUB, C.J.

Defendant Falco, a detective of the City of Newark, was convicted on two charges of misconduct in office (N.J.S.A. 2A:85--1 and 2A:135--1). The Appellate Division reversed, 114 N.J.Super. 53, 274 A.2d 828 (1971), and we granted the State's petition for certification, 58 N.J. 603, 279 A.2d 688 (1971).

The charges stemmed from a serious brawl in a licensed tavern. The State contended defendant was present. A waitress was injured in the melee. She was taken to a hospital where, the State claimed, two other officers persuaded her to eliminate a reference to a beating in the medical history and to say she was injured in a fall. Those other officers were also indicted. We are here concerned only with the conviction of the defendant Falco.

As we have said, defendant was convicted on two counts. One alleged the failure to report 'the actions of certain persons unknown to the Grand Jurors aforesaid who participated in a fight' at the specified tavern. Defendant did not dispute that it was his official duty to report such an event in licensed premises if he was present. Rather defendant denied he was there. Although the State's proof implicated defendant as a participant, such misbehavior was no part of the charge. The charge was that he did not report the illegal actions of others, and the case went to the jury on that basis.

The second charge of official misconduct upon which defendant was convicted was that he later filed a false report about the affair. The facts, briefly, are these. Having learned in some way of the event mentioned above, a superior officer called upon defendant to file a report with respect to the brawl. Again defendant conceded it was his official duty to comply with that demand. After consulting with counsel, defendant filed the report. In that report defendant said he was in and out of the tavern several times during the night; that no fight occurred in his presence; that when he entered on one occasion, other police officers were present; that he inquired of a patron as to why the officers were there and was told a woman 'had slipped and fallen down'; and that 'it appeared to me that the above officers had the situation under control and did not need any assistance from me. ' The State contended, and the jury found, the report was false in the statement that defendant was not present during the fracas.

The Appellate Division held that if defendant filed the written report just mentioned because he feared he would lose his job if he refused to do so, then the report was not admissible in evidence, and this because of Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). On this basis, the convictions on both counts were reversed.

I

Defendant does not spell out how the admission into evidence of the written report affected the conviction on the first count. The nonfeasance charged in that count consisted of the willful neglect of the duty to report the fight at the tavern. The proof of the State's case on that charge did not rest on the written report. On the contrary in the written report defendant flatly denied he was present at the time of the fight. So far as the first charge is concerned, the written report was exculpatory, and in fact accorded with defendant's testimony at the trial. The written report did place defendant at the scene after the event, but the State's case was not advanced by that concession. Rather the written report was placed in evidence because it was itself the criminal event involved in the second charge. For the reasons given in Part II of this opinion, we believe the written report falls outside of Garrity, but if it be assumed the admission of the written report was erroneous as to the first charge, the error was harmless beyond a reasonable doubt. State v. Macon, 57 N.J. 325, 340--341, 273 A.2d 1 (1971); People v. Hooper, 250 Cal.App.2d 118, 58 Cal.Rptr. 100, 101 (Ct.App.1967).

II

The Garrity case was befofe us under the name of State v. Naglee, 44 N.J. 209, 207 A.2d 689 (1965). Three defendants were convicted of conspiracy to obstruct the due administration of the motor vehicle traffic laws. Naglee was the clerk of the municipal court and Garrity was the chief of police. The indictment charged defendants conspired to dispose of eight drunken driving cases by altering to a lesser charge the tickets issued by another officer, the third defendant that entries were made in the municipal court dockets showing the traffic offenders appeared in open court and were fined by the magistrate when in fact no hearings were held; that Garrity required some offenders to post bail and then arbitrarily fixed the fines; and that in some instances Garrity diverted the difference between the bail and the fine to unauthorized uses. In the investigation conducted by a deputy attorney general, Garrity was advised that if he declined to answer questions, he might be removed from office. A statute, N.J.S.A. 2A:81--17.1, would have led to that result. Garrity gave an incriminating statement which was introduced at the criminal trial. We found as a fact that his statement was not involuntary. We held further that the warning given by the deputy attorney general 'was a type of compulsion which may be legitimately used,' 44 N.J. at 222, 207 A.2d at 696, and hence there could be no claim that Garrity's Fifth Amendment privilege was infringed. Our judgment was reversed in Garrity by a vote of 5 to 4.

In deciding Naglee, we saw nothing improper or unreasonable in the exercise of a public employer's right to inquire into the employee's fidelity. We of course recognized that Garrity would have preferred to say nothing and was led to talk by his desire to retain an office he might otherwise be unable to keep. And we appreciated, too, that every confession may be said to be involuntary if it was not volunteered, in the sense that whenever a person who intended not to confess was led to change his mind, his will to be silent was overturned. But we did not understand the Fifth Amendment to mean that a person is entitled to be insulated from any and every circumstance that might lead him to choose to speak.

Rather we assumed that a suspect may not insist that legitimate interests of government be denied merely because he will face a dilemma if they are not. In State v. Garvin, 44 N.J. 268, 208 A.2d 402 (1965), we had dealt with a conspicuous example of such a dilemma--the trial of an indictment. The pressure upon the defendant to testify is usually more compelling than the threat of the loss of employment, for the individual's freedom may be at stake and indeed his job too as a consequence of a conviction, and of course a defendant does not have the option of a public employee to avoid the inquiry by walking away. In rejecting Garvin's claim that he was coerced into taking the stand in his own defense, we accepted the premise that 'The criminal trial itself is inherently coercive' but nonetheless found no violation of the Fifth Amendment, adding that 'We assume no one would seriously suggest that because of such compulsion the Fifth Amendment bars cross-examination of a defendant or the use against him of anything he says on direct.' 44 N.J. at 278, 208 A.2d at 408.

In Garvin the corecion supposedly inhered in the State's assertion of its legitimate interest to try an indictment. In Garrity the coercion supposedly stemmed from the assertion of the government's legitimate interest to assure integrity in public office by disciplining an officer who was faithless to the obligations of his office. Upon the premise that the Fifth Amendment was not intended to secure a miscreant in public office, we held that the choice was Garrity's to answer or to quit. We did not think it immoral or indecent to put an officer to that decision. Perhaps to put it another way, the pressure upon the officer to speak resulted proximately from his desire to hold on to an office which belongs to the public, rather than from the public employer's exercise of its undoubted right to protect itself from a criminal misuse of its offices.

An intermediate position was conceivable in the Garrity situation--that the officer's confession be used to oust him from office but not in the prosecution of his crime in office. But a 'use restriction' would mean that the criminal prosecution would be encumbered by a claim that the State's case was 'tainted' by the use of the officer's statements or leads they furnished. In practical effect a 'use restriction' could result in 'transactional immunity.' We did not think the Fifth Amendment intended that government choose to suffer infidelity in office or to forego a prosecution for crime. We thought the Fifth Amendment left the option to the officer to talk or to quit.

As we read the majority opinion in Garrity, it did not dispute the State's obvious interest in the integrity of performance in public office. Rather it simply gave no weight to that interest. This is evident from footnote 3 of the plurality opinion in Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), a case decided with Garrity and holding that a lawyer may not be disbarred for refusing on Fifth Amendment grounds to produce relevant records in a disciplinary inquiry. In that footnote, Spevack said of Garrity:

'Whether a policeman, who invokes the privilege when his conduct as a police officer is questioned in disciplinary proceedings, may be discharged for refusing to testify is a question...