State v. Yough
| Decision Date | 05 July 1967 |
| Docket Number | No. A--149,A--149 |
| Citation | 231 A.2d 598,49 N.J. 587 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Thomas LeRoy YOUGH, Jr., Defendant-Respondent. |
| Court | New Jersey Supreme Court |
Harry Smith, Asst. County Prosecutor, for appellant (John G. Thevos, Passaic County Prosecutor, attorney).
Leonard I. Garth, Paterson, for respondent (Stephen A. Ploscowe, Paterson, on the brief).
The opinion of the court was delivered by
The defendant was indicted for murder and is awaiting trial. He served notice that he would move for an order before trial excluding his alleged confession on the ground that it 'was tendered under circumstances which would not comply with the decision of the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).' The notice also set forth that the motion would be limited to the issue of whether Miranda had been satisfied and would not 'preclude the defendant from raising this and any other exclusionary grounds' at the trial. The trial judge undertook to hear the motion despite its fragmented form, took the testimony of the police and the defendant, and ultimately entered an order excluding the confession as inadmissible under Miranda. Pursuant to the State's application, leave to appeal to this Court was granted. R.R. 1:2--4(c).
Under our long-standing practice, the determination as to the admissibility of a confession is properly made at rather than prior to trial. See State v. Cicenia, 6 N.J. 296, 301--302, 78 A.2d 568 (1951), certiorari denied 350 U.S. 925, 76 S.Ct. 215, 100 L.Ed. 809 (1955); State v. Green, 49 N.J. 244, 229 A.2d 634 (1967); cf. State v. Ferrara, 95 N.J.Super. 329, 231 A.2d 224 (App.Div.1967). Proposed alterations of the practice were the subject of discussion at the last Judicial Conference and are receiving study. See 90 N.J.L.J. 257 (1967). In the meantime and pending the promulgation of formal rules, pretrial exclusory motions addressed to confessions, particularly where fragmented as here, are not to be entertained. However, in the instant matter, the motion was heard with the State's consent and we therefore pass the procedural irregularity.
On September 10, 1966 the decedent James Disney was mugged in Paterson and suffered wounds from which he died. On September 13th two detectives of the Paterson police force visited the home of the defendant Thomas LeRoy Yough, Jr., told his mother that they wanted to speak to her son about an investigation of an auto accident, and told him that they would like him to accompany them to headquarters. He did so and arrived there shortly after noon. He had lunch and waited in a room by himself until Detective Mohl arrived at 1 P.M. At that time the defendant was told that he was there in connection with the investigation of a mugging which had resulted in the victim's death. The detective testified that he advised the defendant that he had the 'right to remain silent', that he had the 'right to a lawyer' and that a lawyer would be supplied to him 'at his request'. He also testified that he told the defendant that anything he said 'may be taken down and used in court against him' and that 'he had a right to a lawyer even if he couldn't afford one'. In response to a question from the trial judge as to what the defendant had said after he was first warned and told about a lawyer, the detective testified that the defendant said he 'didn't want a lawyer'.
Detective Mohl testified that after he had warned the defendant and had specifically asked him whether he understood his rights, the defendant affirmatively said that he did. The detective stated that he repeated the warnings, and he noted that it was his consistent practice since Miranda to warn suspects repeatedly as to their constitutional rights. He stated further that the defendant, after he had been warned of his rights, said that he wanted to tell him about the mugging incident and that he proceeded to do so orally. After the defendant had completed his oral remarks, the detective told him that a typewritten statement was going to be taken and again advised him that he had the right to remain silent, that any statement could be used against him in court, that he had the right to a lawyer, and that even if he could not afford a lawyer he could have one 'just at his request'. After the defendant said he would give a written statement, he was taken to another room where Detective DeSilva had a typewriter.
According to the State's evidence, the defendant filled in and signed a waiver document before the written statement was taken. The date, the time, his name, and the signature affixed to the document which read as follows, were written by the defendant in ink and in a firm, clear hand:
'Paterson Police Detective Bureau
Date 9--13--66
I Thomas Yough knowing where I am, why I am here, have been told that I need not say naything as it may be used against me in a court of law. I have been told that I may call my attorney, or if I cannot afford one, an attorney would be supplied me.
No threats, promises or duress have been used. Knowing and understanding what this means, I waive my right to remain silent and wish to give a statement.
Sworn & Subscribed before
me this 13 day of Sept. 1966
Martin S. Brennan /s/
Notary Public of New Jersey
My commission expires June 10, 1968'
The defendant's written statement was taken in question and answer form with the questions being asked by Detective Mohl and being typed by Detective DeSilva. It bore the time 3:05 P.M. and the date September 13, 1966. It started out as follows: After the defendant answered preliminary questions as to his name and address, and answered affirmatively as to his ability to read and write English, he was asked, 'Do you know why you are here?' The response was: 'Yes, for mugging and a death crime.' The defendant was asked whether he knew that he had the right to remain silent and that he did not have to say anything regarding the crime and he said, 'Yes, I do.' He was then asked whether he wished to remain silent and have a lawyer present before going on with his statement and he said, 'I don't want no lawyer'.
During the course of the questioning, the defendant was told that his mother and father were there and he was asked whether he wanted to talk with them. He said, 'Yes, but only for two or three minutes.' At that point, which was 4 P.M., the taking of the statement was stopped while the defendant spoke with his mother and father in a separate room. At 4:30 P.M. the taking of the statement resumed. Toward its close, the defendant was asked whether he wished to add anything and he said 'no' and in response to an inquiry whether he had told the truth he said 'yes'. He also answered 'yes' to the final question which read: The statement was initialed on each page by the defendant, was signed by him, was witnessed by Detectives DeSilva and Mohl and was notarized by Donald F. Young, a Notary Public of New Jersey. The testimony of the police officers indicates that the signing took place at about 5 P.M.
Detective DeSilva testified that, in his presence, Detective Mohl warned the defendant as to his rights and that the defendant said he did not want a lawyer and would give a statement. He also testified that the defendant read the waiver document before he signed it and read the written statement before he initialed and signed it. He described the half hour interruption in the taking of the statement during which the defendant spoke to his parents in a separate room. The record indicates that the parents were in the court room during the hearing before the trial judge, but they offered no testimony in opposition to the State's evidence. However, the defendant himself did testify, offering denials which appear to us to be incredible. He was eighteen years old and a junior in Kennedy High School at Paterson. He denied that he ever read the waiver document or the written statement or that he knew their contents though he acknowledged the initialing and his signatures. He denied that he was told at any time before the written statement was completed and signed that he had the right to remain silent, or that what he said could be used against him, or that he was entitled to a lawyer, or that he could have a lawyer even though he could not afford to pay for one. He said that he was positive that the question as to whether he wished to remain silent and have a lawyer present before going on was never asked. That, along with his other denials, was an assertion that the typewritten statement was an utter concoction and that Detective DeSilva had deliberately falsified when he stated that he typed the questions and answers just as they were given and in the very language used by Detective Mohl and the defendant. The trial judge did not find any such falsification and neither do we.
While doubting the number of warnings, the trial judge made an explicit finding that the defendant had in fact been warned. As he put it: ...
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