State v. LaPierre, Nos. A--13

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: WEINTRAUB
• Citation: 39 N.J. 156,188 A.2d 10
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Robert LaPIERRE, Frank Bisignano and Anthony Russo, Defendants-Appellants. to(to). Supreme Court of New Jersey
• Decision Date: 21 January 1963
• Docket Number: A--15,A--127,A--129,Nos. A--13

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39 N.J. 156 188 A.2d 10 STATE of New Jersey, Plaintiff-Respondent,
v.
Robert LaPIERRE, Frank Bisignano and Anthony Russo,
Defendants-Appellants. Nos. A--13 to A--15 (A--127 to A--129).
Supreme Court of New Jersey. Argued May 21, 1962.
Reargued Oct. 9, 1962.
Decided Jan. 21, 1963.

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[188 A.2d 12] Samuel A. Larner, Newark, for defendant-appellant Bisignano.

Robert L. Clifford, Florham Park, for defendant-appellant Russo (Joseph A. Clarken, Jr., Newark, on the brief).

Anthony A. Calandra, Newark, for defendant-appellant LaPierre.

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Brendan T. Byrne, Essex County Prosecutor, for plaintiff-respondent (Angelo R. Bianchi, Peter Murray, and June Strelecki, Asst. Prosecutors, of counsel and on the brief).

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The opinion of the court was delivered by

WEINTRAUB, C.J.

Defendants were convicted of murder in the first degree. Bisignano and Russo were sentenced to die. LaPierre was sentenced to life imprisonment pursuant to the jury's recommendation. All appeal directly to this court. R.R. 1:2--1(c).

The jury could readily find the following facts. At about 11 P.M. on March 15, 1961 Russo and Bisignano entered Hahn's Tavern in Newark, wearing dark coats, dark hats and dark glasses, Russo holding an automatic and Bisignano a knife in a position to suggest it was a gun. Advancing toward a group at the bar, Russo announced a holdup and brandished his weapon. Joseph Hagel, a police officer then off duty, drew [188 A.2d 13] his revolver. Shots were exchanged. Both men were wounded, Hagel fatally.

Bisignano took off upon the opening shots. Russo followed, but fell at the door, losing his hat, glasses and gun. LaPierre, who was in the 'getaway' car defendants had stolen earlier that evening, left the vehicle to flee on foot. As he did, his head struck the door, and the dark glasses he too was wearing fell to the street where they were later found. Russo called to LaPierre for help. LaPierre responded, and the two pursued a frantic course through back yards, with Russo stumbling about in the apparent belief that he had multiple and grievous wounds, whereas in fact he had been hit but once, in his right arm.

As the police closed in, LaPierre surrendered. Russo managed to continue a short distance before being picked up and placed in the patrol wagon which already held LaPierre. Upon learning that Russo was wounded, the officers took him to the city hospital where he was held under guard.

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Meanwhile Bisignano was busy preparing an alibi. He picked up Russo's girl friend, Veronica S., at the apartment where she and Russo were living and took her to his home in Lodi. There Bisignano, his wife and Veronica rehearsed a story concerning his whereabouts at the time of the holdup. During the night the radio reported the death of the victim and that LaPierre and Russo were in custody. In the morning Bisignano and Veronica returned to her apartment where they were met by police officers.

There was no serious issue as to guilt despite testimony designed to dispute it. Russo spoke unconvincingly of drink and drugs, and that he entered the tavern only to 'case' it for a friend. LaPierre testified he told his codefendants just before they left the car that he was not to be included in this robbery. Bisignano too claimed he abandoned the plan, saying in his confession that he asked Russo to call it off after they entered the tavern, while at the trial he said he communicated his withdrawal when still on the sidewalk and went into the tavern with Russo for some beer. The jury understandably was not impressed with these stock stories.

I

All defendants signed confessions. LaPierre, who confessed first, did not question the voluntariness of his statement, but Bisignano and Russo asserted they yielded to force and threats.

A

We must first consider a procedural problem.

In State v. Smith, 32 N.J. 501, 557, 161 A.2d 520 (1960), cert. denied, 364 U.S. 936, 81 S.Ct. 383, 5 L.Ed.2d 367 (1961), we held (1) the trial judge must make his own finding upon the issue of voluntariness; and (2) if he finds the statement to be voluntary and hence admissible, he must instruct the jury to consider the same issue and to Disregard the confession

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unless it finds the State has proved it was voluntarily obtained. We thus departed from prior practice only in this respect--that whereas theretofore the jury was told that it could consider the circumstances surrounding the confession to decide whether to Believe it, henceforth the jury was to be instructed to Disregard the statement completely unless it is found to be voluntary.

The trial court was aware of Smith and referred to it, and when the trial court admitted the confessions, counsel did not suggest the court had failed to discharge its role. However, in their briefs on appeal they urged for the first time that the trial court did not make its own finding of voluntariness but rather decided only that the proofs raised an issue of fact which the jury, and only the jury, must decide. In other words, defendants contended the trial court had not performed the first step described above in our summary of Smith.

The State thereupon moved before us for a remand for certification by the trial court as to whether it had in fact found the confessions[188 A.2d 14] voluntary before admitting them into evidence. The record seemed ambiguous. It was consistent with defendants' criticism but was also consistent with the proposition that the trial judge implicitly found the confessions voluntary and referred to a triable issue of fact simply to indicate that he would later submit the same issue to the jury in accordance with Smith. The fact that none of the counsel raised the issue at the trial suggested that in the context of what had preceded it, the court's ruling carried that implicit finding. In these circumstances we granted the State's motion. In response, the trial court certified it had in fact found the confessions voluntary before receiving them into evidence.

Later we directed the trial court to furnish detailed findings in support of its general finding of voluntariness. The trial court returned such subordinate findings.

We then directed reargument of the issue of voluntariness in the light of those further findings and also invited defendants

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to advance any objection they had to the use of the trial court's certification and additional fact findings to which we have just referred. In response defendants argued it is unfair and indeed a denial of due process of law to consider the post-trial expressions of the trial court.

With respect to the trial judge's certification that he found the confessions voluntary before admitting them into evidence, defendants urge (with no reflection upon this trial judge) that it is better to deal solely with the record as originally returned because not every judge can be expected to certify his own error. But the answer is that we must assume that every judge can and will, that he places truth above price, and will shun the burden of conscious wrong. The judicial process depends upon that faith. So it has been the traditional role of the trial judge to certify the record upon which the claim that he erred will be tested upon appeal. See Miller v. United States, 317 U.S. 192, 63 S.Ct. 187, 87 L.Ed. 179 (1942). Our present rules so provide. R.R. 1:6--2, 3, and 6.

Hence here, the record being unclear as to whether the trial court misconceived its duty under Smith, it was consonant with established practice and with fundamental fairness to call upon the trial court for clarification. See R.R. 1:4--1 and R.R. 1:6--6. The latter rule expressly provides that 'if any difference arises as to whether the record truly discloses what occurred in the court below, the difference shall be submitted to and settled by that court and the record made to conform to the truth.' Cf. Slaughter v. United States, 84 U.S.App.D.C. 232, 172 F.2d 281 (D.C.Cir.1949), cert. denied, 338 U.S. 874, 70 S.Ct. 135, 94 L.Ed. 536 (1949); Merchant v. State, 217 Md. 61, 141 A.2d 487 (Ct.App.1958); Clark v. State, 119 Ohio St. 162, 162 N.E. 429 (Sup.Ct.1928).

We do not suggest a new trial would have to be ordered if a trial court failed to make its own finding. If, as here, the issue of voluntariness was given to the jury with instructions to disregard the confession unless it is found to be voluntary,

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the demand of federal due process would be met. Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953). What then would remain is the question whether the additional protection we intended for the accused in Smith could be afforded by our own finding upon the issue of voluntariness. At the moment we see no reason why it could not, but since the question need not be decided, we leave it open.

The remaining procedural issue is whether we should consider the detailed factual findings supplied by the trial judge pursuant to our directions.

Usually a trial judge states only a finding of the ultimate fact that the confession was voluntarily given. Where the issue has but a single facet, let us say, the use or threat of force, the trial judge's abbreviated finding tells the reviewing court [188 A.2d 15] all it need know to discharge the appellate obligation to give full regard to the opportunity of the trial court to judge the credibility of the witnesses. State v. Smith, supra (32 N.J., at p. 549, 161 A.2d at p. 545). Where, however, the issue involves a number of ingredient claims, a finding upon each would assist the reviewing court, see State v. Fauntleroy, 36 N.J. 379, 397, 177 A.2d 762 (1962), for the trial court could have held for the State notwithstanding a finding for defendant upon one of the ingredients, whereas the reviewing court might conclude the defendant should prevail because of the single fact so found for him. Hence a trial judge should make findings in such detail as he believes...