State v. Kremens, A--145

• Decision Date: 05 July 1968
• Docket Number: No. A--145,A--145
• Citation: 245 A.2d 313,52 N.J. 303
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Daniel C. KREMENS, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 303

52 N.J. 303

245 A.2d 313

STATE of New Jersey, Plaintiff-Respondent, v. Daniel C. KREMENS, Defendant-Appellant.

No. A--145.

Supreme Court of New Jersey.

Argued May 21, 1968.

Decided July 5, 1968.

Martin J. Queenan, Prosecutor of Burlington County, for respondent (Myron H. Gottlieb, Bordentown, on the brief).

Francis J. Hartman, Mt. Holly, for appellant.

The opinion of the court was delivered by

HANEMAN, J.

Defendant, a Caucasian, was convicted of the first degree murder of State Trooper Anthony Lukis and sentenced to death. He appeals under R.R. 1:2--1(c). At trial, defendant produced no witnesses, relying on his assertion that the State had failed to produce sufficient evidence upon which a guilty verdict could be based. In addition to the brief filed by defendant's court appointed counsel defendant filed a supplemental Pro se brief. These combined briefs advance the arguments, Inter alia, that (1) there was insufficient evidence to warrant a guilty verdict, (2) the admission into evidence of two confessions was improper, and (3) the alleged refusal of trial counsel to permit defendant to testify in connection with the proffer of the statements and the refusal of his counsel to interrogate and call a certain witness constitute reversible error.

The State's evidence, which as noted was not disputed and which is as follows, indicates that Trooper Anthony Lukis who was assigned to the New Jersey Turnpike reported to the Moorestown Station shortly before midnight May 4, 1966. Some time thereafter he left the station to begin a routine patrol of a designated section of the Turnpike. At 1:15 A.M. he reported his position as two miles north of Exit 4.

Preston Thomas, an assistant section chief who was traveling north in order to collect money from the various toll booths, left the booth at Exit 5 at about 1:30 A.M. As he entered the Turnpike he noticed a police car put on its dome light and begin to pull up to a 'tan or beige Mustang' which was stopped at the side of the road near milepost 45 north, some 1000 feet from the entrance ramp. Thomas observed one individual in the Mustang but, noticing nothing wrong, continued northwardly.

At approximately the same time Alfred Niedermaier, a truck driver traveling south, approached milepost 45. He saw a police car stopped behind another car. As they were on the other side of the Turnpike he paid no more attention until he drew closer. At this point he saw two men engaged in a struggle. He proceeded to the toll booth at Exit 5 where he reported the incident and heard the collector call for help. As a result of this call the State Troopers' Barracks attempted to contact Lukis' car and, receiving no answer, dispatched another car to the scene.

At the same time Niedermaier was reporting, Raymond Pitts, driving his truck north, approached the two cars. He noticed 'a trooper tussling with some guy' and what appeared to be a third figure standing at the rear of the trooper's car. He stopped his truck and ran back to help the trooper but was in time only to hear shots and see a Caucasian jump into a red Mustang and drive off. He then flagged down William Truitt, another truck driver, who used Lukis' radio to report an emergency, request an ambulance and warn that a red Mustang might be involved. The Turnpike radio control immediately broadcast this warning and just as it came over the radio, two Negro occupants of a maroon Mustang paid the toll at Exit 5 and left. Another vehicle's driver, a Caucasian, reported a lost ticket, filled out a form (signing his name as John Park) and drove off. (In his confession, defendant admitted he had used the name 'John Parker' in exiting from the Turnpike.)

Meanwhile Troopers Trauger and Bernhardt arrived at the scene where they found a New York driver's license bearing the name of the defendant on the seat of the trooper's car and a wallet belonging to Al Antino of Brooklyn in the grass to the rear of the car. It later developed that Antino's car in which he had left his wallet, had been stolen and later recovered without the wallet.

By 2:00 A.M. the State Police had put into operation a plan called the Delaware Valley Search Plan. In accordance with this plan Troopers Dory Saul and Barry Townsend took up positions on Route 30 near Paulsboro. At 3:20 A.M. a bronze Mustang drove past and the troopers gave chase in their cars. The chase continued for some five or ten minutes when the driver of the Mustang, identified by Townsend as a white male about six feet tall and weighing 185 lbs., abandoned the car and fled. Townsend examined the car and found a box of .32 caliber shells, a Turnpike ticket, and a lease contract for the car.

By this time a large concentration of police was in the area. Sergeant Gilcrest of the Woodbury Police heard someone in a wooded area nearby, pursued him and was able to hear him enter a body of water. He saw him emerge from the far side of a stream and when the man refused to stop, Gilcrest fired a shot but missed.

Trooper Turse noticed some wet footprints at the creek and followed them to a house where he was joined by Detective Andrews and Deputy Chief Pulio of West Deptford. They saw the defendant crouched under a porch step and, when he refused to emerge, removed the step and pulled him out, ripping his outer clothing in the process. The defendant possessed two loaded hand guns which were taken from him. One of these guns was later shown by ballistic tests to be the murder weapon.

The arrest took place at approximately 5:20 A.M., and several minutes later defendant, in custody of the police, arrived by car at the Paulsboro Police Station. During the ride defendant was asked only for his name, which he gave. Kremens was 'soaking wet', cold and shivering but he appeared calm and unemotional. Because he was wet, his shirt, T-shirt and jacket were removed and he was given a warm jacket and some coffee. Andrews testified that, in the presence of three or four other officers,

'I told him that he had the right to remain silent, anything that he said could be used against him, he had the right to have an attorney, the attorney could be present at any time he was questioned and if he didn't have the money to obtain the attorney the Court would furnish him one.'

Immediately thereafter defendant said 'I'll tell you'. He then related a story of having fallen asleep on the Turnpike and being awakened by Lukis who noticed a bag which he thought contained a bottle of whiskey. Further investigation showed it to be a .25 caliber revolver and ammunition. Another bag was found which contained .32 caliber ammunition. Kremens was directed by the trooper to enter the State car. Defendant surreptitiously took a second loaded revolver--a .32 caliber revolver--with him to Lukis' car. When Lukis threatened to handcuff him and attempted to call in to headquarters Kremens grabbed his arm, a struggle ensued, the gun went off and the officer fell. (Medical testimony indicated that six bullets were fired into Lukis' body at least three of which were fired from a distance of three to four inches.) Kremens started his car, crossed the Turnpike divider and drove back in a southerly direction. He exited from the Turnpike, filling out a lost ticket form, presumably because the ticket he had would show that he had been driving north. This statement was not reduced to writing.

After giving this story to the police defendant was taken to the Mantua State Police Barracks. He arrived at 5:50 A.M. where he was given coffee and cigarettes. He refused an offer of food. At 7:00 A.M. he was questioned again. Before the questioning he was told

'* * * that he had a right to talk with a lawyer of his own choice or anyone else before saying anything, and if he cannot pay for a lawyer, a Court will get one for him, also that anything that he does say can be held against him and used in court. And no threats of reward have been made.'

He was then asked 'Are you willing to give this statement' and he replied 'I will tell you what happened'. He then repeated substantially what he had said at Paulsboro, with minor differences, adding that he had filled out a lost ticket form in the name of 'John Parker'. This statement was reduced to writing but was not signed. Defendant proffered no proof on either the confession Voir dire or the main case. The jury returned a verdict of guilty.

We will treat of defendant's asserted grounds for reversal in the order as above enumerated.

I.

There was adequate evidence to sustain the verdict. R.R. 1:5--1; State v. Balles, 47 N.J. 331, 337, 221 A.2d 1 (1966) certiorari denied, appeal dismissed 388 U.S. 461, 87 S.Ct. 2120, 18 L.Ed.2d 1321 (1966).

II.

Defendant also urges that the conviction must be reversed because the admission of the confessions was contrary to the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) decided after the events detailed here but applicable nonetheless because defendant's trial began subsequent to that decision. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

Defendant's argument that the court erred in the admission of testimony of the content of the oral confessions is two pronged.

Defendant says first, that the...