State v. Puchalski

• Decision Date: 14 June 1965
• Docket Number: No. A--88,A--88
• Citation: 45 N.J. 97,211 A.2d 370
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Anthony M. PUCHALSKI, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 97

45 N.J. 97

211 A.2d 370

The STATE of New Jersey, Plaintiff-Respondent, v. Anthony M. PUCHALSKI, Defendant-Appellant.

No. A--88.

Supreme Court of New Jersey.

Argued March 1, 1965.

Decided June 14, 1965.

Ronald J. Picinich, Asst. Pros., for respondent (Guy W. Calissi, Bergen County Pros., attorney, Ronald J. Picinich, Asst. Pros., on the brief).

Joseph Guez, Hackensack, for appellant.

The opinion of the court was delivered by

HANEMAN, J.

Defendant appeals from a conviction of murder in the second degree. R.R. 1:2--1(c). The pertinent facts, as developed at the trial, are as follows:

Defendant, together with George Allen, Bruno Gussie and Warren De Frazio, robbed a home in Jersey City on April 18, 1962. Without its being known by the other three, Gussie, the last to leave the house, pistolwhipped and raped the wife of the owner. Defendant, upon learning of the rape on the following day, became quite incensed. When Gussie called defendant and advised him that he (Gussie) was wanted for questioning in connection with the robbery, defendant suggested that he surrender and have his wife prepare an alibi for him. Later the same day Gussie told the defendant that his wife had refused, and demanded money from him to enable him to flee. He emphasized the latter by stating: 'And if they do pick me up, just how long do you expect me to last, a man can just take so much.'

Shortly after this conversation the defendant contacted Allen and the two of them, using the ruse that they were planning another robbery that night, met Gussie at 8:30 P.M. Defendant, who at Allen's suggestion had purchased gloves so that a parafin test would not later disclose powder grains, had a loaded automatic pistol under the front seat of the car. Allen drove the car containing the three to a parking lot in Ridgefield Park, Bergen County. Defendant and Gussie got out of the car. Defendant shot him in the back of the neck and killed him.

The proofs offered by the State were: (1) defendant's two written statements and various oral admissions; (2) Allen's testimony, to the effect that Gussie had to be silenced to keep him from talking, and that since the defendant had invited Gussie to participate in the robbery he felt responsible for his going 'sour'; and (3) circumstantial evidence corroborating the confession and negating the anticipated defense of an accidental killing or killing in self-defense.

After defendant's conviction Allen pleaded guilty to an accusation of aiding and assisting Puchalski to escape apprehension for murder, and the outstanding murder undictment against him for Gussie's death was dismissed. He was sentenced on that accusation to a term of two to three years, and was later tried and convicted for his participation in the armed robbery. On that charge he was sentenced to a term of from five to seven years. While at State Prison, where defendant was also incarcerated, Allen signed a recanting affidavit dated February 9, 1963, wherein he repudiated his trial testimony as the product of fear for his own life and the prosecutor's harassment. In this affidavit he substantiated defendant's version of the killing (i.e., that it was accidental).

Defendant's counsel took no further action in connection with Allen's recantation until March 1964, when, during the pendency of this appeal, he moved this Court for a remand to permit a motion for a new trial based on this post-trial recantation by the State's key trial witness against his client. This Court granted the motion and the trial judge promptly held a hearing thereon. Allen, when called to testify at that hearing, neither affirmed nor denied signing the recanting affidavit. He apparently had a complete memory failure, testifying that he could not remember the actual killing or anything he had stated at trial or in his recanting affidavit. The trial judge denied the motion for a new trial.

Defendant now advances a two-pronged attack upon his conviction. He argues that (1) his confession was involuntary, and (2) the motion for a new trial should have been granted. We shall consider his arguments in that order.

I

Defendant argues that his will was overborne, his capacity for self-determination critically impaired, and that his confession was obtained by such fundamentally unfair means as to require the conclusion that it was involuntary. See Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037, 1057--1058 (1961); State v. Naglee, 44 N.J. 209, 218, 207 A.2d 689 (1965); State v. Wade, 40 N.J. 27, 35, 190 A.2d 657 (1963), cert. denied 375 U.S. 846, 84 S.Ct. 100, 11 L.Ed.2d 73 (1963). In that connection he asserts that from 6 P.M. on April 23 (when he was picked up for questioning) to 4:30 A.M. on April 27 (a period of some 82 hours) he was under almost constant interrogation, with little or no sleep or food, was physically abused and threatened, and was isolated from counsel and friends.

In determining the issue of voluntariness, our courts have recognized that the same must be decided upon the facts involved in each individual case. State v. Petrolia, 21 N.J. 453, 459, 122 A.2d 639 (1956), cert. denied 355 U.S. 942, 78 S.Ct. 431, 2 L.Ed.2d 422 (1958); State v. Tune, 13 N.J. 203, 215, 98 A.2d 881 (1953), cert. denied 349 U.S. 907, 75 S.Ct. 584, 99 L.Ed. 1243 (1955); State v. Pierce, 4 N.J. 252, 258, 72 A.2d 305 (1950). In addition to the length of time the defendant has been detained, the court should consider such other relevant circumstances as how the time has been utilized, State v. Smith, 32 N.J. 501, 555, 161 A.2d 520 (1960), cert. denied 364 U.S. 936, 81 S.Ct. 383, 5 L.Ed.2d 367 (1961); the age, intelligence and experience of the defendant, State v. Loray, 41 N.J. 131, 136, 195 A.2d 289 (1963); State v. Smith, supra; whether the defendant has been legally detained, State v. Jackson, 43 N.J. 148, 169, 203 A.2d 1 (1964); whether the defendant has been warned that the confession may be used against him, State v. Reynolds, 41 N.J. 163, 180, 195 A.2d 449, 1 A.L.R.3d 1438 (1963), cert. denied 377 U.S. 1000, 84 S.Ct. 1934, 12 L.Ed.2d 1050 (1964); State v. Scanlon, 84 N.J.Super. 427, 438, 202 A.2d 448 (App.Div.1964); the defendant's prior experience with the law; and whether the defendant complained to the magistrate before whom he was arraigned, State v. La Pierre, 39 N.J. 156, 169, 188 A.2d 10 (1963), cert. denied Bisignano v. New Jersey, 374 U.S. 852, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963). In other words, we must consider both the characteristics of the particular defendant and the pressure brought to bear on him.

Defendant contends that the State's own proofs show that he was questioned for some 39 1/2 hours during the 82-hour period between his arrest and his stenographic confession, to wit: all Monday night (April 23), Tuesday evening for two hours, all day Wednesday and all day Thursday into the early hours of Friday (April 27). The defendant's brief maintains that the length and intensity of Puchalski's questioning were comparable to that experienced by defendants Watts, Turner, Harris and Culombe, all of whose confessions were held to be coerced. Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct 1347, 93 L.Ed. 1801 (1949); Turner v. Commonwealth of Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949); Harris v. State of South Carolina, 338 U.S. 68, 69 S.Ct. 1354, 93 L.Ed. 1815 (1949); Culombe v. Connecticut, supra. Although Puchalski was questioned over a period of three and one-half days, his questioning was not in 'relays' as was that of Watts and Harris, he was not kept incommunicado as Watts, Harris and Turner were, and he was a much stronger individual than Culombe, an illiterate mental defective of the moron class.

In connection with the question of the voluntariness of Puchalski's confession and his allegations that his will was overborne, it must be remembered that he was 28 years of age at the time here involved; he had completed his high school education and had studied some business law; his testimony is lucid and his use of English is excellent; nor was he unfamiliar with criminal proceedings, having been convicted in New York State of burglary, in Jersey City of breaking and entering, and in Newark of attempted larceny.

The State adduced the following testimony: Defendant was picked up for questioning at 6:00 or 6:30 P.M. on Monday, April 23. He was taken to the Union City police station and from there transferred to the Jersey City Fifth Precinct Building at 8:00 P.M. He was asked whether he wanted counsel and replied that his lawyer was a 'Counsellor Liebman.' When the police inquired whether he desired them to contact Mr. Liebman he responded in the negative, explaining that his sister would take care of that. He was questioned intermittently, principally about the robbery-rape, until about midnight, when he was asked if he wished to see his sister. Having received an affirmative answer, the police sent a car to bring her to the precinct station. He had a private conversation with her for about 20 minutes. The questioning then continued until about 3:00 A.M., when he agreed to give an alibi statement. The police then finger-printed and photographed him. At 8:05 A.M. he was transferred to the Jersey City Prison where he remained, without being further questioned until later that morning when he was taken before a magistrate and held as a material witness in the robbery-rape investigation. He was returned to the City Prison at about noon and at 5:15 P.M. was taken to the Detective Bureau for questioning by the Bergen County police in connection with the Gussie murder. This questioning lasted about twq hours, after which time the records of the prison indicate that he was returned to his cell and was not disturbed from 7:30 P.M. until 10:30 the following morning (April 25). At that time he was taken to the Fifth Precinct Building to be more readily available for questioning as the investigation...