State ex rel B. D.

Lewis, J. A. D.

(dissenting). With deference to the opinion of the majority court, I am constrained to vote for' an affirmance and, accordingly, note my reasons for • dissenting.

*597After a study of the record, 1 am satisfied that D’s confessions were voluntary and properly admitted in evidence and that the State’s proofs were sufficiently corroborative of the critical facts and circumstances to sustain the trial court’s finding of guilt.

Two homicides were committed in the same area and within a relatively short time. The statements that D. signed at the Youth House were typed by Detective KowinsM, who testified that they were “exactly” as given to him.

As to decedent It. B., D. was requested to “tell us as best as you can remember what you did on that day [June 4, 1965].” He replied :

II was about 8:00 in the night and I asked by sister, M. to fix me some supiier. So, she wouldn't fix it so I fixed it, myself. She said I had better fix it myself cause she wasn’t going to fix it. So I Sx it myself and I told her don’t give me no smart answer. Then I went in my room and I got, dressed. Then 1 left and walked out the house. It was about 9:0G then. I figured I’d go out for about an hour til 10:00. I wasn’t mad at nobody then. So I walked down Montgomery Street. I saw a lady and I didn’t pay no attention to her. She was a short lady and she was kind a drunk, I say intoxicated. I -walked down to Prince Street and then I walked through Prince Street to Spruce Street and I walked up Spruce Street to Charlton Street and I walked through Charlton Street. I was walking from Spruce Street towards Montgomery Street. When I was walking I was about a third of the way into the block and saw this man walking on the other side of the street. * * s
So I looked at him and kept on walking and looking at him. I didn’t have nothing in particular in my mind. Then I just turned around, walked across the street and started walking behind him. He was going toward Spruce Street and I was behind him. Then he must have heard me coming and he turned ai'ound and looked at me. Then he turned back around and started walking Then I picked up a rock aud hit Min with it on the back of the head and I just kept on hitting him. Then I started to walk away. Then I took a knife outta my pocket. Then I went back and I stabbed Mm. He was laying on the ground. I just kept stabbing him. I don’t know how many times. After I stabbed him in the back he raised up on his elbow and I just kept on stabbing him some more. I don’t know what I did it for. I don’t know what I did it for. I felt I had the urge to do something. Then I just walked away and I left the man laying there and I still had the knife in my hand. Then I was walking and *598I was going towards Spruce Street, and I saw a lady and I swung my arm back and I started running. * * *

As to decedent Y. S., D. narrated the events thusly:

I don’t know tbe woman’s name, but after I had beat up and stabbed a man in an empty lot on Charlton Street, between Montgomery Street and Spruce Street, I walked down Charlton Street towards Spruce Street. I saw a woman walking towards Spruce Street on Charlton Street.. She was about three or four doors in from Spruce Street, and T had my knife in my hand and when I was about shoulder to shoulder with her, I slung my left arm back and the knife hit her somewhere around her neck and chest. Then I started running.

In considering whether the method used in obtaining D.'s confessions can be squared with the due process of law commandments of the Fourteenth Amendment, we should, as indicated in State v. Smith, 32 N. J. 501, 555 (1960), certiorari denied 364 U. S. 936, 81 S. Ct. 883, 5 L. Ed. 2d 367 (1961), “look at the question in the light of the age, intelligence and experience” of the particular juvenile “as well as of the period of time involved and how that time was utilized.” See Haley v. State of Ohio, 332 U. S. 596, 68 S. Ct. 302, 92 L. Ed. 224 (1948).

It has been said that the “Determinative factors include not only illegal detention but its duration, the relentlessness of interrogation, disregard of the rudimentary necessities of life, the deprivation of counsel, deception respecting the accused's constitutional rights, the accused's age, education, emotional characteristics, and experience in criminal matters.” People v. Price, 24 Ill. 2d 46, 57, 179 N. E. 2d 685, 691 (Sup. Ct. 1962), quoted in People v. Hester, 39 Ill. 2d 489, 237 N. E. 2d 466, 473 (Sup. Ct. 1968), certiorari granted April 7, 1969, 394 U. S. 957, 89 S. Ct. 1310, 22 L. Ed. 2d 559, wherein a boy, 14 years of age and of below normal intelligence, confessed to the sexual assault and murder of a schoolteacher; she had been stabbed repeatedly in *599the side and chest. The confessional statement, taken at the office of the State’s Attorney in the presence of the assistant State’s Attorney, a court reporter and a police sergeant, was substantially identical to statements previously given to the investigating officers. The Supreme Court of Illinois, after discussing and distinguishing Haley and other related decisions, concluded that defendant’s confession was not coerced and was properly admitted in evidence.

The record before us reveals that the police investigation led to D. who, at first, not only denied any knowledge of the crimes but refused to give an account of his actions; he was disbelieved by the police. He later told a “story” which was checked out and found to be false. While D. was riding with Officers Alford and Rowinski on August 10, 1965, he was advised that the information he had given was untrue and, as they approached the scene of the murders, he “pointed” to the lot stating that “he wanted to tell about it, tell what happened.”

The statements in question were taken at the Youth House in the early afternoon of the same day (between 1:20 and 3:45 p.m.) during which time D. was served lunch. It is undisputed that he was advised as to his constitutional rights. The assistant prosecutor (who had had 22 years prior experience with the FBI) testified that he was there to protect defendant’s rights as well as those of the county. He stated further that the preambles were read in detail and explained “line by line,” that prior to signing the statements D. read them out loud in their entirety and that the youth “expressed himself understandably and had no difficulty in the language because this was his language, actually.” The evidence suggests that the witness endeavored to discharge his responsibility “to see that Justice is done” as required of him under Canon 5 of the Canons of Professional Ethics, he did not have the benefit of the salutary admonition enunciated in the subsequent decision of State, in the Interest of Carlo, 48 N. J. 224 (1966), quoted in the majority opinion.

*600D. gave this testimony:
Q. Rrom 1:20, from the time you came back here [Youth House] and they were present, did anyone assault or threaten you?
A. No, they treated me pretty good. * * *
Q. Well, until the statements were fully completed, is that correct?
A. Yes.
Q. Incidentally, is everything that Detective Reitzel said, when he got here, the truth?
A. Reitzel, O'Keefe and the other guy were telling the truth. Alford wasn’t telling the truth altogether.

The boy’s parents were separated. According to his testimony, he was living with his mother; he qualified it, however, by saying: “Yes, but I wasn’t home. I didn’t stay home, that much. I spent a lot of time some place else.” In the New Jersey State Diagnostic Center report, it is noted that D. viewed his mother “as an intolerant, punitive figure.” It is thus understandable why he said that he did not “need” his mother, and it is unlikely that her presence would have given him any consolation or support or would have had a meaningful influence or effect upon him.

The Diagnostic Center report reflects D.’s background which, while it has no bearing on his guilt or innocence, is noteworthy in the appraisement of his intelligence and experience.

Under “Presenting Problem,” his six confrontations with the law since 1962, including charges of atrocious assault and battery, breaking and entering and three larceny offenses, are listed. The “Psychosocial Summary” observes that he was examined by a psychologist who “felt that B. has severely overstrained brittle control over intense hostility and was seen as potentially homicidal in relation to both peers and adults,” and that a psychiatrist reported the boy “shows a marked amount of hostility toward any authority figures.” In the “Psychological Summary” D. is referred to as “an individual of high Average intelligence with an intellectual potential in the Bright Normal range. * * * patient also has violent and sadistic aspects. * * * His responsivity seems to be canalized into destructive impulsivity and pro*601vocative belligerence.” The “Prognosis” concludes, “The overall picture seem to be somber as to the possibilities of complete rehabilitation at least in the near future.”

Moreover, the independent, assertive and strong will of D. is illustrated by the fact that during both the prosecutor’s summation and offer of the confessional statements in evidence, he was repeatedly interrupted by the youth, who was instructed by the court to “be quiet.” Notwithstanding the restraining efforts that were made, D. persisted with his disturbances while the trial court was ruling on the motion, provoking the judge to comment, “I am not going to be interrupted any further by him.” The record also reveals an outburst by D. “in several obscene terms” at the conclusion of the court’s ruling.

It therefore seems clear that the police were not dealing with “an easy victim of the law,” the characterization applied to the juvenile in Haley v. State of Ohio, supra, 332 U. S., at p. 593, 68 S. Ct., at p. 304, 92 L. Ed., at p. 228. Note also State, in the Interest of Carlo, supra. The challenged confessions in those cases were held to be inadmissible.

The murder confession in Haley was by a youth younger and less experienced than D. It was obtained after five or six hours of police questioning in relays through the “dead of night.” Haley was then held incommunicado for over three days during which time his mother, and a lawyer she had retained, were refused access to him. The Carlo court was concerned with two boys, aged 13 and 15 respectively, who had allegedly caused the death of a girl aged 10. They were taken to a precinct police station for interrogation and their midnight confession was obtained under circumstances “quite similar to those described in Haley v. Ohio” (48 N. J., at p. 238). The youths testified that their confessions, in what appeared to be the language of the typist, were the product of “fear and fatigue” caused by the extensive grilling by the police. Furthermore, the *602parents of the boys attempted, but were not permitted, to see their sons during the interrogation.

In the instant matter the statements were taken at the Youth House, a place familiar to D., and in the presence of a detective from that agency. As previously noted, the statements were not in the language of the typist, but rather were D.’s verbatim narration of the events. They were not the product of fatigue, fear, panic, prolonged and relentless grilling, or coercive tactics demonstrating official callousness overpowering the will of the confessor. There was no deception respecting the accused’s constitutional rights nor any disregard of rudimentary necessities of life. The law enforcement officers did not ride roughshod over a parent-child relationship in order to obtain the confession, albeit they might have taken the added precaution of insisting upon the boy’s mother being present. It is apparent, however that D. was alert and sophisticated, and knowledgeable in the ways of crime and criminal procedure way beyond his years. The evidence supports a conclusion that, when D. realized the police knew he was lying, he voluntered to tell what happened and then did so voluntarily and in his own way.

The State’s case on the issue of corroboration was weak but it, nevertheless, appears to be sufficient to demonstrate the trustworthiness of the confessions. As stated in State v. Lucas, 30 N. J. 37, 58 (1959), “Ho greater burden should be required of the State than independent corroborative proof tending to establish that when the defendant confessed he was telling the truth, plus independent proof of the loss or injury.” The court further stated, “But safeguards for the accused should not be turned into obstacles whereby the guilty can escape just punishment.” Ibid.

The autopsy reports established the deaths of the victims, thus supplying the required independent proof of the “loss or injury.”

Although the police, in the course of their routine investigation, made known to D. some of the broad facts as *603to how the victims were murdered, no one but the perpetrator of the crimes was in a position to recount these descriptive details, of the execution of the murders, which meshed so naturally and logically with the physical evidence that was adduced.

The testimony of the investigating officers as to the conditions of the dead bodies when found, the production of the blood-stained rock, and the evidence supplied by Dr. Albano, who performed the autopsies, substantially buttress the trustworthiness of the confessions.

The alleged discrepancies urged by defense counsel are, in fact, supportive of the validity and truth of his client’s statements. D. said that when he was “shoulder to shoulder” with Y. S., he “slung” his “left arm back” and the knife hit her somewhere around “her neck and chest.” Dr. Albano gave evidence that she died of an ascending stab wound of the chest. There was also a stab wound of her upper lip.

The medical witness also testified that his autopsic examination of E. B. revealed five stab wounds in the left chest, one stab wound ££back of the right chest,” one stab wound “back of the left chest,” and five lacerated wounds of the head. The statement of the accused was that he hit this victim on the back of the head with a rock and “I just kept on hitting him” and while he was lying on the ground “I just kept stabbing him * * * After I stabbed him in the back he raised up on his elbow and I just kept on stabbing him some more.”

Two weapons were used — a rock and a knife. That D. may be left-handed and that the doctor expressed the opinion, in view of the direction and angle of the wounds, that the assailant was probably right-handed are of no moment. In his testimony the doctor also indicated that the stabbing “may have been delivered by a left-handed assailant, if he was standing directly behind him [victim],” and testified further:

*604Q. Doctor as far as what direction the wounds came, concerning the assailant, would it not depend on whether the vietim was lying down or standing up?
A. That is true, and it also depends upon the relationship of the assailant with the victim.
Q. And when you say it presumably comes from the assailant’s right to his left, that is under che situation where they’re face to face?
A. That’s right, and that’s all I can say.

It is plain from D/s signed statements that the multiple stabbing assaults were not made when he was face to face with either of the victims.

In totality the proofs as to the facts and circumstances appear to lend sufficient credence to the confessions to meet the test of trustworthiness laid down in State v. Lucas, supra, and State v. Ordog, 45 N. J. 347, 364 (1965), certiorari denied 384 U. S. 1022, 86 S. Ct. 1942, 16 L. Ed. 2d 1025 (1966).

To hold that the confessions were inadmissible in evidence and to reverse the judgment of the trial court, even though it be conditional as suggested in the majority opinion—a remand procedure here tantamount to a dismissal of the complaint since additional probative evidence not obtainable in 1965 hardly could be forthcoming four years later — would probably put D. back on the streets of the community to continue exploiting his criminal tendencies. I am convinced that anything short of an affirmance would be a disservice to the juvenile and to society as well.

The following observation of Mr. Justice White in one of the dissenting opinions in Miranda v. Arizona is significantly appropriate. In speaking about the accused in the context of the issues there involved, the Justice said:

* * * £jas so unquestionably been resolved that in each and every case it would he better for him not to confess and to return to his environment with no attempt whatsoever to help him? I think not. It may well be that in many cases it will be no less than a callous disregard for his own welfare as well as for the interests of his next victim. Miranda v. Arizona, 384 U. S. 436, 543, 86 S. Ct. 1602, 1663, 16 L. Ed. 2d 694, 763 (1966).

*605After considering all of the evidence and bearing in mind the findings of the trial judge, who had the opportunity to hear and see the witnesses, I am persuaded that the totality of the circumstances did not amount to involuntariness or violation of due process.

Accordingly, I would affirm.