STATE OF NEW JERSEY v. KIRWAN BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5662-01T45662-01t4

STATE OF NEW JERSEY,

Plaintiff-Respondent/Cross-Appellant,

v.

KIRWAN BROWN,

Defendant-Appellant/Cross-Respondent.

_________________________________________

 

Submitted September 14, 2005 -- Decided

Before Judges Conley, Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment no. 99-07-1010.

Yvonne Smith Segars, Public Defender, attorney for appellant/cross-respondent (Timothy P. Reilly, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent/cross-appellant (Elizabeth M. Devine, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following an unsuccessful Miranda hearing, defendant was acquitted by a jury of first-degree murder but convicted of second-degree manslaughter, N.J.S.A. 2C:11-4b(1); fourth- degree aggravated assault, N.J.S.A. 2C:12-1b(1); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a, and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. In so convicting, the jury found that defendant shot and killed Trishawn Moody and shot and injured Taquane Hoagland. Shortly after the shootings, the police obtained a confession from defendant. At trial, defendant asserted that the confession was coerced and, therefore, false. On appeal, defendant argues that the confession should have been suppressed. Defendant also argues that evidence that he was willing to submit to a polygraph test was improperly presented to the jury and that evidence of his prior possession of a weapon was inadmissible pursuant to N.J.R.E. 404(b). He also claims instances of prosecutorial misconduct warrant reversal and that he was denied effective assistance of counsel. He further argues that the trial judge committed various errors regarding the jury and that his sentence was excessive. The State cross-appeals claiming that the sentence imposed on the fourth-degree aggravated assault was illegal.

We are convinced that the polygraph evidence requires a reversal. We address that issue in detail. We also are convinced the trial judge properly denied defendant's Miranda motion and address that issue as well. We need not, and do not, address the remaining issues or the State's cross-appeal except to note, as to the other crimes evidence and the jury charge relating thereto, that defendant did not object at trial to either the evidence or the jury charge. In the event of a new trial, on repeat attempt by the State to produce the evidence, we assume defendant will timely object, giving the trial judge the opportunity to address the objection in the context of the record as it may then be and to fashion an appropriate jury charge.

I.

The Facts

At the time of the shootings in November 1998, defendant lived with his parents, was attending Middlesex County College, and was working. The following depicts the circumstances of the shootings and defendant's subsequent arrest, as reflected by the State's trial evidence.

On November 26, 1998, the Club Malibu in Scotch Plains hosted a large concert. On that night, Trishawn and his friends Taquane, Karriem Lyons and Eugene Aero arrived at the club at about 9:30 p.m. to attend the concert. Defendant and his cousin Damian Palmer and friends Calvin Winter and Otis Burrell were also at the club that evening, having arrived at approximately 11:00 p.m. Defendant was wearing a brown shearling leather coat with fur on it and a hat with flaps that hung down over his ears. At that time, Latifa Stokes was defendant's girlfriend. She had previously dated Trishawn as a result of which defendant and Trishawn had had a prior altercation. She arrived at the club at the same time defendant did.

At around midnight, as Trishawn and Taquane were walking toward their car to leave, shots rang out behind them. Taquane ran to his left and looked back to see from where the shots were coming. Although Taquane could not see the shooter's face, he saw a black male wearing a brown leather coat. A witness, Delviccho Betts, who was also at the club, heard the gunshots, turned and saw the profile of defendant's face. Defendant was wearing the same coat and hat as earlier in the evening and had his arm outstretched parallel to the ground. Delviccho never saw a gun in defendant's hand, but saw flashes coming from the area where defendant was standing with his arm outstretched.

As people were running from the gunfire, Delviccho noticed a girl on the ground getting trampled by the crowd. Having a .38 caliber gun in his possession, he shot two rounds into the air in an effort to disperse the crowd. He picked the girl up, placed her on a car, returned to his friend's car and placed the gun in the backseat armrest of that car. Ultimately, the gun was found by the police and the friend was arrested.

Seven shell casings were recovered by police at the scene. After ballistics tests determined that Delviccho's gun did not fire the shots that killed Trishawn and injured Taquane, Delviccho went to the police station on November 28, 1998. He gave a formal statement and picked defendant out of a photographic array as the shooter. Defendant was also identified as the perpetrator by Karriem Lyons, Trishawn's friend. He told police that defendant was wearing a brown shearling leather coat and was able to pick defendant out of a photographic array. And too, defendant's cousin, Dwayne Davy, told the police that defendant came to his house after the shooting looking "craz[ed]" and admitted to shooting in the direction of Trishawn.

On December 1, 1998, at approximately 8:30 a.m., an arrest warrant for defendant was executed at his home. He was taken to the Scotch Plains Police Department at approximately 9:00 a.m. Following an oral interview, a typed statement was taken in which he admitted to having a gun at the club and to shooting Trishawn and Taquane.

At trial, Karriem disavowed his prior statement and testified that he never saw defendant fire the gun and did not see him wearing a brown leather shearling coat. Dwayne similarly disavowed the statement he gave to police, saying that the information he told them was a "lie." He admitted that he hoped the charges against defendant would be "dropped." On the other hand, Delviccho told the jury that there was no question in his mind that defendant was the person whose profile he saw shooting the gun at the club, and related an attempt by defendant, shortly before trial, to bribe him not to testify against him.

Defendant testified on his own behalf. He admitted that he was at the Club Malibu. He claimed, however, that he was wearing a black leather coat and orange boots. He stated that nothing unusual occurred before he and his friends left, and that Latifa called and informed him that Trishawn and Taquane had been shot. He admitted to purchasing a brown leather shearling coat right before Thanksgiving. However, he denied wearing the coat on the night of the shooting. He further testified that when interviewed at the police station following his arrest, he had initially denied involvement in the shooting, but that the police called him a "liar," threw him against the wall, poked at an old stab wound he had, and told him his home was being "trashed," all of which forced him to falsely confess.

The evidence presented during the Miranda hearing was as follows. Upon arrival at the police station, Detective Kevin Foley and Sergeant William J. Schultz took defendant to the Detective Bureau in the basement of the station and spoke with him regarding his Miranda rights. Foley gave defendant a blank Miranda rights form and told defendant he was going to advise him of his Miranda rights before anything was said. Foley asked defendant if he could read and write in English, and defendant replied that he could. Foley asked defendant to read the Miranda rights out loud, and defendant complied. Defendant indicated that he understood his rights. Defendant also read the wavier of rights section of the form and agreed to waive his rights and speak with the police.

Foley then gave defendant a copy of the charge, which defendant read and indicated that he understood, and proceeded with the interview. Foley told defendant a number of individuals had given statements that defendant shot Trishawn at Club Malibu and asked defendant to tell his side of the story. Foley stressed to defendant that he needed to tell the police the truth. Defendant told Foley and Schultz that he knew Trishawn, but that they were not friends. He related an earlier altercation with Trishawn over defendant's girlfriend. After that altercation, defendant related that he had problems with some of Trishawn's friends, specifically, "that they were looking at him funny."

Foley testified that defendant was cooperative during the interview and that he took his time to think about the questions before responding. Neither he nor Schultz raised their voices during the interview. Foley also testified that at no point during the interview did defendant request to see an attorney or indicate that he no longer wanted to answer questions. He was permitted to use the bathroom during the break between the oral interview and the taped statement. During the interview, defendant was offered something to eat or drink. Foley believed defendant had a soda but had nothing to eat during the interview. At some later time, defendant did have something to eat.

The formal statement began at 11:55 a.m. Defendant gave a sixteen-page statement. While giving the statement, defendant became emotional and began to cry. The detectives took a short break, about one to two minutes, to allow defendant to regain his composure. Following this break, defendant changed his story and admitted to the shooting.

Defendant's testimony regarding the interview differed from that of the police officers. He denied being allowed to use the bathroom or eat anything and described the detectives as angry because they were yelling and cursing at him. He said they were "up in my face so close, it was like basically speaking to me like nose-to-nose, and you could actually feel like the spit . . . coming on my face how angry they were when they speaking to me." He claimed the detectives repeatedly called him a liar and that Schultz grabbed him by the shirt and threw him against the wall, causing his head to hit it. In addition, Foley poked him in the chest in the area where he had previously been stabbed. According to defendant, Foley told him that if he did not change his story, he was going to go to jail because everyone said he did the shooting. He told defendant he would be sentenced to sixty years in prison and could even get the death penalty. He said he knew people in prison and was going to tell them to rape and beat defendant. He also told defendant that there were police officers at his house wrecking it, there was sheetrock pulled off the walls all over the house and defendant's parents were crying. He told defendant that if he did not change his story, he was going to tell the officers to keep destroying the house and he would go to jail and never see his parents again. Foley then told defendant that if he cooperated and changed his statement, he would help him so he would not go to jail for the rest of his life. He said defendant would be able to go to jail for seven years and probably get out in five years. It was defendant's story that it was at this point that he changed his statement.

Following the extensive Miranda hearing, the trial judge denied the motion to suppress the confession in a nine-page written decision. She noted that defendant was an eighteen-year-old college student who, although never having previously been in trouble with the law, was "not unsophisticated." She found defendant read and initialed his Miranda rights, "clearly had the intellectual capability to understand" and did not invoke his right to remain silent or his right to an attorney. She recognized that the issue was whether "the actions of the prosecutor's detectives were so coercive that they deprived the defendant of his ability to make an unconstrained, autonomous decision to confess. Miller v. Fenton, 796 F.2d 598 (3d Cir.) [(cert. denied, 479 U.S. 989, 107 S. Ct. 585, 93 L. Ed. 2d 587 (1986))]."

In resolving that issue, the judge found that the determination was "made more difficult by the fact that the court does not believe any one party has been totally accurate with their rendition of the events . . . ." The judge questioned the veracity of Foley's testimony that he did not poke defendant in the chest. As to the use of raised voices and calling defendant a liar during his interview, the judge did not find the police officers' denial of this behavior to be credible. The judge also believed that the police officers told defendant that his home was being searched, but, while the police knew this was not true, the statement was not "so egregious as to overcome the will of the defendant." On the other hand, the judge found much of defendant's assertions incredible. For example, she did not find defendant's testimony that he was held without food or drink to be accurate and she did not believe that Schultz choked defendant and threw him against the wall, only that he grabbed defendant's collar "on one occasion, in a manner that in earlier times would have been used to get an errant child's attention."

The judge concluded that defendant may have been poked on the chest on one or two occasions and grabbed by the collar, but "these actions were brief and not sufficient to overbear the will of this defendant." Defendant was mostly cooperative and "no doubt concerned that he faced a considerable period in jail and that others had identified him." The judge concluded that defendant at some point realized "that the police had a good case against him and his only viable option was to cooperate and tell the truth. This is not as a result of the action of the police but his voluntary decision at the time."

II.

The Confession

Defendant argues in point I that his conviction must be reversed because the trial judge erroneously denied his motion to suppress his statement to the police. He claims the detectives used unlawful physical force to coerce a confession thus making his confession per se involuntary. Alternatively, defendant argues that even under the totality of the circumstances test used by the trial judge, his statement should have been excluded. We disagree.

As stated above, the judge found that defendant's statement was voluntarily given. As to the use of force, the judge did not believe that Schultz choked defendant but did believe that he grabbed defendant's collar "on one occasion, in a manner that in earlier times would have been used to get an errant child's attention." The judge also concluded that defendant may have been poked on the chest on one or two occasions. But "these actions were brief and not sufficient to overbear the will of this defendant."

The voluntariness of a statement "is a legal question requiring an independent appellate determination." State v. Pillar, 359 N.J. Super. 249, 268 (App. Div.), certif. denied, 177 N.J. 572 (2003). However, we are "obliged to defer to the trial judge's credibility determination to the extent that it was grounded in the court's opportunity to observe the character and demeanor of the witnesses . . . ." State v. Sheika, 337 N.J. Super. 228, 238 (App. Div.), certif. denied, 169 N.J. 609 (2001).

A confession elicited through police coercion is inadmissible pursuant to the Fifth Amendment and the common law of New Jersey. State v. Patton, 362 N.J. Super. 16, 41 (App. Div.), certif. denied, 178 N.J. 35 (2003). It is the State's burden to prove voluntariness beyond a reasonable doubt. State v. Cook, 179 N.J. 533, 562 (2004); State v. Galloway, 133 N.J. 631, 654 (1993). The controlling test for determining voluntariness is "whether, under the totality of circumstances, the confession is 'the product of an essentially free and unconstrained choice by its maker or whether his will has been overborne and his capacity for self-determination critically impaired.'" State v. Pillar, supra, 359 N.J. Super. at 271 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2046-47, 36 L. Ed. 2d 854, 862 (1973)). See State v. Knight, 183 N.J. 449, 461-62 (2005). The court must consider the defendant's characteristics and the nature of the interrogation. State v. Galloway, supra, 133 N.J. at 654. Factors to take into account include "the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." Ibid. The court should also consider any "previous encounters with law enforcement . . . ." State v. Knight, supra, 183 N.J. at 463.

"Cases holding that police conduct had overborne the will of the defendant have typically required a showing of very substantial psychological pressure on the defendant." State v. Galloway, supra, 133 N.J. at 656. However, a confession extracted by physical violence during an interrogation has been considered per se involuntary. Miller v. Fenton, supra, 796 F.2d at 604. See also State v. Chippero, 164 N.J. 342, 358 (2000) ("[T]he presence of physical abuse militates in favor of exclusion of a confession."); State v. Hickman, 335 N.J. Super. 623, 632 (App. Div. 2000) ("[A] confession extracted by a credible threat of physical violence is considered involuntary and thus violative of due process."). The United States Supreme Court has described the reasoning for this per se rule as follows:

Physical violence or threat of it by the custodian of a prisoner during detention serves no lawful purpose, invalidates confessions that otherwise would be convincing, and is universally condemned by the law. When present, there is no need to weigh or measure its effects on the will of the individual victim. The tendency of the innocent, as well as the guilty, to risk remote results of a false confession rather than suffer immediate pain is so strong that judges long ago found it necessary to guard against miscarriages of justice by treating any confession made concurrently with torture or threat of brutality as too untrustworthy to be received as evidence of guilt.

[Stein v. New York, 346 U.S. 156, 182, 73 S. Ct. 1077, 1091-92, 97 L. Ed. 1522 (1953), overruled on other grounds, Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1744, 12 L. Ed. 2d 908 (1964).]

The per se rule was applied in State v. Petrolia, 21 N.J. 453, 459 (1956). There, defendant's condition after police interrogation was thusly described:

Both eyes were black and blue. The right was worse. There was a discoloration at the level of the tenth and eleventh rib . . . about three inches long and one inch wide, located towards the mid-line and below the nipple three inches. . . . It was a pretty extensive bruise. There was a discoloration three inches long by one inch in width in the upper right rectus muscle . . . and that was an extensive bruise. Discoloration three inches long by one inch wide, left mid-axilla, at the level of the twelfth rib . . . and that was an extensive bruise. Five ecchymotic spots . . . in the right and mid-axillary line . . . at the base of the eighth, ninth, and tenth ribs . . . which indicate . . . possible rib injury. Discoloration of right ear involving three-quarters of the ear. . . . Moderate discoloration of the right ear and one of left ear. Sixth, mild hemorrhage into the right external auditory canal.

[Id. at 458.]

The police interrogators had claimed that defendant's injuries were the result of an automobile accident. Id. at 459. This was discounted by the physician. He opined that defendant's injuries appeared to have been administered by "'blows.'" Ibid. The police officer who had taken the defendant into custody also testified that, at that point in time, defendant did not have bloody or discolored eyes or ears. Id. at 459-60. The Court found that the confession "was clearly the product of unlawful physical applications which destroyed any semblance of its being voluntary . . . ." Id. at 459. Thus, because such a confession had "no evidential value and should not be recognized in a civilized system of justice," the Court reversed the conviction and remanded for a new trial. Id. at 460.

In contrast, here, the trial judge found no more than that defendant may have been poked in the chest on one or two occasions and grabbed by the collar. While this involves some physical contact between the interrogating officers and defendant, she concluded "these actions were brief and not sufficient to overbear the will of this defendant." We agree, particularly in light of the judge's rejection of the bulk of defendant's claims of physical violence.

Further, we agree with the judge's assessment that the totality of circumstances clearly establish that defendant's confession was "'the product of an essentially free and unconstrained choice'" and his will was not "'overborne [or] his capacity for self-determination critically impaired.'" State v. Pillar, supra, 359 N.J. Super. at 271 (quoting Schneckloth v. Bustamonte, supra, 412 U.S. at 225-26, 93 S. Ct. at 2046-47, 36 L. Ed. 2d at 862). As the judge found, defendant was "not unsophisticated." He was an eighteen-year-old college student at the time of his confession, who resided in a "mixed urban/suburban environment" and had previously given a false statement to the prosecutor's office in connection with another matter. Moreover, she rejected his factual assertions that he was held without food or drink and was not permitted to use the bathroom. She expressly rejected defendant's contention that he was choked and thrown against the wall.

Defendant asks us to view the poking and grabbing of his collar to have been more substantial than found by the trial judge. But we are "obliged to defer to the trial judge's credibility determination to the extent that it was grounded in the court's opportunity to observe the character and demeanor of the witnesses," an opportunity "appellate judges are not afforded." State v. Sheika, supra, 337 N.J. Super. at 238-39. We find no occasion here to reach factual and legal conclusions contrary to those of the trial judge. See State v. Knight, supra, 183 N.J. at 467-68; State v. Cook, supra, 179 N.J. at 563.

III.

The Polygraph Evidence

Defendant claims that his conviction must be reversed because evidence that he confessed rather than submit to a polygraph examination was improperly presented to the jury. The State argues that defendant failed to object to the presentation of the evidence below and that there was no error in presenting the evidence to the jury because no polygraph examination was ever taken by defendant. Thus, there can be no inference as to the results of the examination which could have tainted the trial. We disagree with the State and conclude that, although not objected to below, the polygraph evidence was not admissible and its admission was plain error "clearly capable of producing an unjust result." R. 2:10-2.

In State v. Driver, 38 N.J. 255 (1962), the Court held that "[t]he results of polygraph tests, whether favorable or unfavorable to an accused, are uniformly held inadmissible." Id. at 261. The Court's reasoning was "that the lie detector has not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception." Ibid. Because the results of the test are not competent evidence, the Court reasoned that a defendant's refusal to submit to a polygraph test was also inadmissible. Ibid. To a jury, such evidence of refusal might indicate "a consciousness of guilt . . . ." Ibid. Showing a defendant refused to take the test could even be more prejudicial than "evidence of results adverse to [the defendant] coupled with proof of its scientific imperfection." Ibid. There, the defendant refused to submit to a polygraph test and the prosecutor repeatedly focused on this in his opening statement and during the trial. Id. at 260, 263. Because the remarks during the opening possessed a "horrendous capacity for prejudice," id. at 262, and the prosecutor behaved with "prejudicial overzealousness," the Court vacated the conviction and remanded for a new trial. Id. at 265.

In State v. Arnwine, 67 N.J. Super. 483, 495 (App. Div. 1961), we held that if the results of a polygraph test were inadmissible through direct testimony, then they could not be presented indirectly or inferentially. "Where testimony is designed to leave inferences of lying by offering to admit results, or indirectly informing the jury thereof, the rights of the defendant to a fair trial have been materially affected." Id. at 496.

The State is quite right to point out that since a polygraph test was never performed, reference to defendant's willingness to take one, and the fact that after his confession it was not performed, does not convey to the jury polygraph results or infer such results. But, in State v. LaRocca, 81 N.J. Super. 40 (App. Div. 1963), we addressed admissibility of the type of polygraph evidence at issue here; i.e., merely showing defendant's willingness to submit to such a test. There, it was defendant who sought to introduce such evidence. The trial judge refused to allow it. On appeal, defendant claimed that the trial judge's refusal to allow the evidence was reversible error because the evidence was not of inadmissible results "but rather to establish his state of mind, his consciousness of innocence." Id. at 46. We rejected this contention and affirmed the trial judge's refusal to allow the evidence. Following the holding in State v. Arnwine, supra, 67 N.J. Super. 483, that evidence indirectly showing the results of a polygraph test was inadmissible, we concluded that it was "a small step to the inference a jury might draw from testimony of a willingness or refusal to take the polygraph test." Id. at 47. We adopted the reasoning of Commonwealth v. Saunders, 125 A.2d 442, 445 (Pa. 1956):

Since it is uniformly held that such a test is not judicially acceptable . . . it is obvious that neither a professed willingness nor a refusal to submit to such a test should be admitted. Defendant's offer was merely a self-serving act or declaration which obviously could be made without any possible risk, since, if the offer were accepted and the test given, the result, whether favorable or unfavorable to the accused, could not be given in evidence.

[Ibid.]

See also State v. McDavitt, 62 N.J. 36, 43 (1972) ("Proof that a defendant in a criminal trial either refused a lie detector test, or offered to submit to one, has been held to be not admissible in evidence."); State v. Clark, 128 N.J. Super. 120 (App. Div. 1974), aff'd, 66 N.J. 339 (1975) ("A necessary corollary to this rule [that polygraph tests are uniformly inadmissible] prohibits reference to the accused's refusal or offer to submit to a polygraph test." Id. at 126.)

It is within the context of these applicable legal principles that we consider the evidence as the jury heard it. In doing so, we consider it important to note that defendant had denied any involvement in the shootings when he was initially asked and agreed to take a polygraph. But after the police extracted the confession, the jury was informed that a lie detector examiner, who the interrogators had waiting in the police station, was allowed to leave without performing the test. The clear inference is that since the confession was the truth, there was no longer a need for the test.

The polygraph evidence first was introduced by the State through Detective Schultz:

[PROSECUTOR]: Was [defendant], at any point, asked if he would be willing to take a polygraph?

[SCHULTZ]: In the beginning of the statement Detective Foley told him, he said, "Listen," he explained to him, "I have one rule when I talk. I want the truth."

[PROSECUTOR]: This is Foley talking, or you?

[SCHULTZ]: Detective Foley explained to him, he said, "I just want the truth." He says, "If you give us the truth we'll be fine," and he said, "That is all I would give you."

[Defendant] explained to him, "I'm going to tell you the truth," and Detective Foley asked him, at that point, he says, "When we finish talking, would you be willing to take a polygraph exam for the same questions that we will discuss right now"? He says sure he would. He agreed to do so.

[PROSECUTOR]: And just so we are clear. When Foley asked [defendant] if he was willing to take a polygraph, at what point was that during the initial -

[SCHULTZ]: At the beginning, right after we, initially, started talking to [defendant].

Later, Schultz was again questioned about the polygraph examination:

[PROSECUTOR]: What about polygraph? Were there any arrangements made for a polygraph operator to come?

[SCHULTZ]: I'm not sure if it was myself - when he agreed, on the morning of the interview, that he would take a polygraph following the interview, either myself or Detective Foley, I'm not sure, one of us stepped out into the open area there and advised Sergeant Mahoney or Sergeant Fitzgerald that he's agreed to take a polygraph exam and, apparently, one of the other of them, I'm not sure which, made arrangements for the polygraph examiner to respond to headquarters.

[PROSECUTOR]: At a later time, on that day, did you see someone who was there to conduct a polygraph?

[SCHULTZ]: Yes.

[PROSECUTOR]: Do you remember who that was?

[SCHULTZ]: Kaminskas, Detective Kaminskas, who is a County police officer.

Kaminskas told the jury that after setting up his equipment at the police station he overheard defendant break down and confess. He then packed up his equipment and left because there was no longer a need for the polygraph. Along the same lines, Schultz told the jury on cross-examination that they had defendant in a corner and did not need to resort to threats or coercion to obtain a confession:

[DEFENSE COUNSEL]: You never raised your voice, never made any threats and at one point, about three or four hours in your questioning of him, he just does a flip. Is that correct?

[SCHULTZ]: Basically, that is correct.

[DEFENSE COUNSEL]: No promises, no inducements?

[SCHULTZ]: No, sir. It's called a corner, sir.

[DEFENSE COUNSEL]: Sorry?

[SCHULTZ]: It's called a corner. He painted himself in a corner. He told lies, and then he was going to sit in front of a polygraph machine, and he knew that was being set up at that point . . . .

[Emphasis added.]

The prosecutor referred to this during summation:

You know and I know that the Detective Kaminskas, with the polygraph, walked in that room. What is going through [defendant's] head? "Darn. I've told this story. Maybe they are going for it. Now, they are putting me on a lie detector." What does he do? Then he breaks down.

In light of the trial recantations of all but one of the State's eyewitnesses, defendant's confession was critical evidence for the State. Its credibility was squarely before the jury. Defendant asserted his initial denial of involvement was the truth and that the police coerced the confession from him. Most assuredly, the fact that the police saw no need to perform the test after his confession conveys the inference that the confession was the truth, not the initial denial, and that, had he taken the test, its results would have shown the confession to be truthful. This is precisely the type of inference that is inadmissible. See State v. Clark, supra, 128 N.J. Super. at 126; State v. Arnwine, supra, 67 N.J. Super. at 495.

The State argues that there can be no negative inference because no test was actually administered. We disagree. Evidence that no test is determined necessary after a defendant finally confesses clearly infers that the results would have shown the confession to be true. The State, in effect, used the polygraph evidence to "prejudicially bolster" the truth of defendant's confession when the defense was attempting to show that defendant falsely confessed. See State v. Clark, supra, 128 N.J. Super. at 127. This is impermissible. Ibid. We are convinced defendant's substantive rights were affected. Given the fact that at least some physical contact occurred during the questioning, the credibility of defendant's confession most likely was a close call for the jury, as it seems to have been for the Miranda judge. And, too, "[w]e have cautioned against an unmitigated faith in the truth and probity of confessions generally." State v. Cook, supra, 179 N.J. at 560. All of this, added to the recanting State's eyewitnesses, convinces us the error was substantially prejudicial and requires a new trial.

Reversed and remanded for a new trial.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Of course, if the State and the defendant knowingly and voluntarily stipulate as to the admission of the test results, such evidence is admissible. State v. McDavitt, supra, 62 N.J. at 46.

(continued)

(continued)

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A-5662-01T4

September 21, 2005