State v. Kremens
| Decision Date | 12 January 1971 |
| Citation | 272 A.2d 537,57 N.J. 309 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Daniel C. KREMENS, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Daniel R. Coburn, Asst. Deputy Public Defender, for appellant (Stanley C. Van-Ness, Public Defender of New Jersey, attorney).
Alfred M. Bitting, Asst. Prosecutor, for respondent (Martin J. Queenan, Prosecutor of Burlington County, attorney).
The opinion of the Court was delivered by
Defendant was tried and convicted of first degree murder for the fatal shooting of State Trooper Anthony Lukis; the jury declined to recommend life imprisonment. Defendant appealed directly to this Court pursuant to R.R. 2:2--1(c), but his conviction was affirmed. State v. Kremens, 52 N.J. 303, 245 A.2d 313 (1968). However, this Court stated at p. 311, 245 A.2d at p. 317:
As was noted, the defendant did not take the stand nor was any other evidence adduced in his behalf either on the Voir dire or the main case. In his Pro se brief, defendant alleges difficulties with counsel and the refusal of counsel to allow him to take the stand to testify as to the circumstances under which the confessions were given. Defendant now alleges brutality and although this was denied by the testifying officers we deem it wise to remand to the trial court for the purpose of taking testimony and determining why defendant did not testify and whether the failure to testify was with his consent. The court on such remand shall also take testimony of the defendant as to what he would have testified had he been placed on the stand and return that record to us without factual findings. Defendant also objects to the failure of his counsel to utilize a witness who would have allegedly contradicted other testimony as to the purchase of the murder weapon. While the crime charged was the use of the gun, not its purchase, if defendant did not buy the gun as he indicated in his confession, the contradiction might have cast doubt on the truthfulness of the confession. Testimony may be taken on that contention of defendant as well and returned to this Court. Jurisdiction will be retained in this matter to allow prompt disposition. Upon the return of the remand defendant may if he desires discuss before this Court the problems raised by the Supreme Court decisions in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) and Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
The matter is returned to this Court after testimony pursuant to the remand.
We had intended that the trial court make specific findings of fact on the question of why the defendant did not testify on his trial and whether he waived his right to so testify, as distinguished from making findings of fact with respect to the testimony he would have given on the Voir dire. The trial court apparently misunderstood our intention and made no factual findings. However, in the light of the complete testimony adduced on the remand, we have no hesitancy in making such a finding on the record of that testimony. In assaying defendant's arguments it should be remembered that he was represented by experienced and able counsel.
Defendant's counsel testified that there were numerous reasons for the failure to call defendant to the stand on the Voir dire concerning the voluntariness of his confession, all of which were discussed with defendant. Among these was the fact that defendant's recital of the facts surrounding the confession was almost identical with the version of the State Police. The sole discrepancy, according to the trial counsel, concerned defendant's complaints of being mistreated by the police, and these allegations were not of such a nature as to affect the admissibility of the confession. Defendant's testimony, if honestly given, would therefore be cumulative, supporting the State's position that the confession was voluntary. Defendant now recites a different version of the facts surrounding the confession in substantiation of alleged police brutality. We are satisfied that his present statement is a fictitious concoction, and that had he told the truth, he would not have contradicted the State's proof in any important particular. Although defense counsel recalled a number of discussions concerning the attendant possible advantages and disadvantages of defendant's testifying at the Voir dire, he could not recall specifically whether defendant had verbally approved the suggestion that he not take the stand. There can be no doubt, however, that defendant was advised of his right to take...
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...our state constitution, they, like the Pre-Rock federal courts, have implicitly assumed its existence. See, e.g., State v. Kremens, 57 N.J. 309, 313, 272 A.2d 537 (1970) (defendant's failure to testify resulted from a "knowledgable waiver of that right"); State v. Gonzalez, 223 N.J.Super. 3......
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