Opposition — Schonwald v. New Jersey

Supreme Court, U. &

FILED

JUL 12 1979

——

IN THE

Supreme Court of the United Statew « . cere

May Term, 1979

No. 78-1843

WALLACE J. SCHONWALD,

Petitioner,

v.

STATE OF NEW JERSEY,

Respondent.

On Petition for a Writ of Certiorari to the Superior Court

of New Jersey, Appellate Division

RESPONDENT’S BRIEF IN OPPOSITION

Joun J. Deanan

Attorney General of New Jersey

Attorney for Plaintiff-Respondent

State of New Jersey

State House Annex

Trenton, New Jersey 08625

JoHn DrCicco

Deputy Attorney General

Chief, Appellate Section

Division of Criminal Justice

State Of New Jersey

13 Roszel Road

Prineeton, New Jersey 08540

Of Counsel

Anne C, Paskow

Deputy Attorney General

On the Brief

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

es

TABLE OF CONTENTS

Opinions BELOow

ConsTITUTIONAL Provisions, Statutes AND Rutes Iy-

VOLVED :

QuESTION PRESENTED

STATEMENT OF THE CASE

Reasons ror Denyinc CERTIORARI

Point I—The facts of record do not permit the

formulation or resolution of the question stated

by petitioner

CoNCLUSION

Cases Cited

Iverson v. State of North Dakota, 480 F.2d 414

(8 Cir. 1973), cert. den. 414 U.S. 1044, 94 S.Ct.

549, 38 L.Ed.2d 335 (1973)

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966) .....

Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711,

50 L.Ed.2d 714 (1977)

Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22

L.Ed.2d 311 (1969)

State v. Galliechio, 51 N.J. 313, 240 A.2d 166 (Sup.

Ct. 1968), cert. den. 393 U.S. 912, 393 S.Ct. 233,

21 L.Ed.2d 198 (1968)

ao - F bo

8-10

li TABLE OF CONTENTS

PAGE

State v. Godfrey, 131 N.J. Super. 168, 329 A.2d 75

(App. Div. 1974), aff’d o.b. 67 N.J. 267, 337 A.2d

ek TI OC. MOVED cciicoipireamncneecgeeir owe 9

State v. Gosser, 50 N.J. 438, 236 A.2d 377 (Sup. Ct.

1967), cert. den. 390 U.S. 1035, 88 S.Ct. 1434, 20

L.Ed.2d 295 (1968) 4 9

State v. Slobodian, 120 N.J, Super. 68, 293 A.2d

399 (App. Div. 1972), certif. den. 62 N.J. 77, 299

A.2d 75 (Sup. Ct. 1972), bail den. 409 U.S. 909,

93 S.Ct. 212, 34 L.Ed. 2d 170 (1972) one 8

United States v. Hall, 421 F.2d 540 (2 Cir, 1969),

cert. den. 397 U.S. 990, 90 S.Ct. 1123, 25 L.1d.2d

SOR CT See

United States Constitution Cited

Vifth Amendment ... 2, 10

Statutes Cited

N.J.S.A. 2A :85-1 3,4

N.J.S.A. 2A 393-6 3, 4

Rule Cited

New Jersey Court Rule:

2:11-3(e) (2) 2, 3,8

IN THE

Suprene Court of the United States

May Term, 1979

No. 78-1843

>.

eT

WALLACE J. SCHONWALD,

Petitioner,

Vv.

STATE OF NEW JERSEY,

Respondent.

On Petition for a Writ of Certiorari to the Superior Court

of New Jersey, Appellate Division

La

—

RESPONDENT’S BRIEF IN OPPOSITION

The respondent State of New Jersey respectfully re-

quests that this Court deny the petition for writ of cer-

tiorari, seeking review of the Superior Court of New Jer-

sey, Appellate Division’s opinion in this case.

Opinions Below

The New Jersey Supreme Court’s order denying peti-

tioner’s petition for certification is reported at N.J.

. A.2d (March 13, 1979) and appears as peti-

2

tioner’s appendix C, page 11. The order of the Superior

Court of New Jersey, Appellate Division denying peti-

tioner’s motion for rehearing, not reported, appears as

petitioner’s appendix B, pages 9 to 10. The opinion of

the Appellate Division, not reported, appears as_peti-

tioner’s appendix A, pages 7 to 9. As to the issue raised

in the instant petition, the Appellate Division summarily

affirmed, pursuant to New Jersey Court Rule 2:11-3(e) (2).

The Superior Court of New Jersey, Law Division, Morris

County, did not issue a written opinion; its oral ruling

with respeet to the issue raised herein appears in the

trial transcript of April 20, 1977 (2R20-1 to 21).*

Constitutional Provisions, Statutes and Rules Involved

United States Constitution, Amendment V

Or Crimes anp INDICTMENTS

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a grand jury, except in cases

arising in the land or naval forces, or in the militia,

when in actual service in time of war or publie dan-

ger, nor shall any person be subject, for the same

offense, to be twice put in jeopardy of life and limb;

nor shall be compelled in any criminal case to be

witness against himself; nor to be deprived of life,

liberty or property, with due process of law, nor

shall private property be taken for publie use, with-

out just compensation. [U.S. Const. amend. V]

*1R refers to the record below, transcript April 19, 1977.

2R refers to the record below, transcript of April 20, 1977.

3

~-

New Jersey Statutes Annotated 2A:85-1. Offenses indict-

able at common law and not otherwise covered, punish-

able as misdemeanors.

Assaults, batteries, false imprisonments, affrays,

riots, routs, unlawful assemblies, nuisances, cheats,

deceits, and all other offenses of an indictable na-

ture at common law, and not otherwise expressly

provided for by statute, are misdemeanors. [N.J.

S.A. 2A:85-1 (West, 1969, page 7) ]

New Jersey Statutes Annotated 2A :93-6. Giving or accept-

ing bribes in connection with government work, service,

ete.

Any person who directly or indirectly gives or

receives, offers to give or receive, or promises to

give or receive any money, real estate, service or

thing of value as a bribe, present or reward to ob-

tain, secure or procure any work, service, license,

permission, approval or disapproval, or any other

act or thing connected with or appertaining to any

office or department of the government of the state

or of any county, municipality or other political sub-

division thereof, or of any public authority, is guilty

of a misdemeanor. [N.J.S.A. 24 :93-6 (West, 1969,

page 147) ]

New Jersey Court Rule 2:11-3(e)(2). Opinion Judgment ;

Stay After Judgment; Affirmance without Opinion.

Criminal Appeals. When in a criminal appeal the

Appellate Division determines that some or all of

the issues raised by the defendant are clearly with-

out merit, the court may affirm by an opinion which,

as to such issues, specifies them and quotes this rule

and paragraph. [R. 2:11-3(e)(2) (Gann ed. 1979,

page 343) ]

4

Question Presented

It. is the State's position that the facets of record do not

permit formulation of the question as stated by petitioner

and that this case presents no real question warranting

review by this Court.

Statement of the Case

State Grand Jury Indietment No. SGJ-35-76-5, filed on

August 19, 1976, charged petitioner Wallace J. Schonwald

With miseonduet in cihee, NuLSA, 2A:85-1 (Count One)

and solicitation of a bribe, NULSLA. 2A 293-6 (Count Two),

Ile was tried before the Honorable Charles M. ivan, odr.,

Judge of the County Court (temporarily assigned to Su-

perior Court), and a jury from April 1S through May 4,

1977 and was found guilty on both counts,

The State’s proofs established that petitioner, a former

New Jersey Department of Transportation official, soli-

cited and received large sums of money from Louis C.

Ripa, former president and major shareholder in’ Porter

and Ripa Associates, an engineering, planning and arehi-

tectural design firma whieh did extensive business with the

Department of Transportation, in exchange for past, pres-

ent and future favorable treatment promised by petitioner

in his capacity within that department. The unsuccessful

defense theory advaneed by petitioner at trial was that he

had been legitimately employed by Ripa and the Porter

and Ripa firm and had earned the sums of money in-

volved.

The State’s evidence primarily consisted of testimony

from Ripa, who following petitioner's initial demand for

money reported the incident to the State Attorney Gen-

eral and assisted in the subsequent investigation, and tape

5

recordings of portions of the conversations between Ripa

and petitioner on the five oceasions they met from June 16

to July 15, 1976. At those meetings, petitioner pursued

his solicitation demands, and Ripa actually delivered to

him in compliance with those demands the sums of $3,500

on June 18 and $14,000 on July 15, 1976, using funds sup-

plied by the State for this purpose, As petitioner left the

July 15, 1976 meeting, he was stopped and detained by

State agents who exeeuted a previously obtained search

warrant. Contradictory exculpatory statements made by

petitioner during and following the seareh were also al-

mitted into evidenee by the State.

Pursuant to petitioner's motion to suppress these extra

judicial statements, a voluntariness (Miranda) hearing

was held prior to trial at whieh time the following: in-

formation was elicited from Deputy Attorney General

Bozza, the sole witness, As petitioner drove from. the

Porter and Ripa parking lot on July 15, 1976 following

his meeting with Ripa wherein he received a $4,000 check

and $10,000 eash, his vehicle was followed by Deteetive

Ottens and Bozza. By prearrangement, a uniformed

trooper approached petitioner’s vehicle as it stopped at a

nearby traffic light and directed petitioner to the adjacent

police barracks parking lot. Petitioner, followed by Bozza

and Ottens, drove into the lot (1R46-16 to 48-15). Ottens

made introductions and requested petitioner to accompany

them inside, and petitioner agreed (1R49-3 to 18),

Inside, introductions were again made (including Deputy

Attorney General Cox who had joined them), and a valid

search warrant authorizing a search of petitioner's per-

son and vehicle for the check and cash was produced and

explained to him. He was told he would be detained for

a short period pursuant to the warrant and that they

would be looking for a $4,000 check and $10,000 in cash.

6

To this petitioner announced that he knew nothing about

the cash and that he “had worked for” the eheek. Tle

voluntarily produced the eheek (IR50-5 to 13). These

remarks were not in response to questions, and petitioner

was cautioned not to volunteer information (LRD0-14 to

Jt).

Next, petitioner’s person was searched, revealing noth

ing pertinent (LR50-25 te S113). Petitioner reiterated

several times that he knew nothing of the $10,000, and

he was repeatedly advised not to volunteer information

(TROL-16 to 52-2). ‘Thereafter everyone went outside where

petitioner's vehicle was searched in his presenee and the

$10,000 was found (TRS2-3 te 11).

Back inside, the money was counted and Bozza advised

petitioner that in their opinion they “had enough” to ar

rest him for the commission of a erime but that he was not

going to be arrested and the evidence would be presented

to the Grand Jury. He was told “he was free to leave

because the seareh had ended” (LRSS-1S te 23). Petitioner

was then told that Bozza wished to ask him questions,

and he was advised that he did not have to answer ques.

tions, that if he did answer the questions anything he

said could be used as evidence against him and that if

he wanted to contact a lawyer and have the lawyer present

during the course of the conversation he was free to do

so (TRSS-23 to 54-4). Since petitioner was not arrested

and was free to leave at any time, he was not told that

an attorney would be appointed for him if he were unable

to afford one (1R54-22 to 55-13).

Thereupon petitioner was questioned. During the in-

terview, he took alternative positions regarding the $10,

OOO and maintained that the $4,000 had been legitimately

earned (See LRSG-10 to 23). Petitioner was told his

stories were not believable, and portions of previously

taped conversations were played for him to demonstrate

this. Several times Bozza attempted to terminate the

interview, Despite this, petitioner insisted on staying and

trying to exeulpate himself (LR57-3 to 12). At the eon-

clusion of the interview which lasted approximately one

and a half hours, petitioner left unhindered and unar-

rested (1R59-10 to 23).

In denying petitioner’s motion to suppress, the trial

court ruled:

[lhe totality of the cireumstanees here satisfies

me as the finder of the faet for the purposes of

this motion that Mr, Schonwald, first, was told not

to volunteer any statements, secondly, he was told

more than once that he was tree to leave. In faet,

he was almost advised or urged or begyed to leave.

I believe, as I already stated, that Mr. Bozza’s

terminology was something about practically chasing

him out of headquarters,

Finally, | have absolutely no reason in the world

to believe that if Mr. Sehonwald had said at the

outset: You say [’m not under arrest, well, then,

I’m getting out of here as fast as | ean, no one

would have stopped him from doing it.

Under those cireumstanees, | eannot econelude that

there was any violation of the defendant's rights

by failing to give him the full Miranda, warnings,

and I’m satisfied that what he said was said volun

tarily. (2R20-1 to 18).

Thereafter, petitioner was tried to a jury and con.

vieted of miseonduet in office and bribery solicitation.

The judgment of conviction was entered on August 19,

1976, and petitioner was sentenced to coneurrent two to

three year terms at the New Jersey State Prison and

fined $2,000. The Superior Court of New Jersey, Ap-

pellate Division affirmed petitioner’s conviction pursuant

to New Jersey Court Rule 2:11-8(e)(2) on Deeember

7, 1978, and denied his motion for rehearing on Decem-

ber 21, 1978. The New Jersey Supreme Court denied

Ins petition for certification on March 18, 1979. Peti-

tioner has been incarcerated pursuant to the instant sen-

tence sinee April 4, 1979.

REASONS FOR DENYING CERTIORARI

POINT I

The facts of record do not permit the formulation

or resolution of the question stated by petitioner.

The four-fold warnings enunciated in Miranda vy. Ari-

cona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.id.2d 694 (1966),

need only be administered to and waived by an individual

when he is subjected to State initiated custodial inter-

rogation. During the period while petitioner was detained

so that the search warrant could be executed he was not

subjected to any questioning and was repeatedly eau-

tioned not to volunteer information whenever he gra-

tuitously made a statement concerning the eheck or eash.

Miranda warnings are not required where statements made

are volunteered and do not result from police question-

ing or remarks. Miranda y. Arizona, 384 U.S, at 478, 86

S.Ct. at 1630, 16 L.led. 2d at 726; State v. Slobodian, 120

N.J. Super. 68, 74-75, 298 A.2Qd 399, 402-403 (App.

Div. 1972), certif. den. 62 N.J. 77, 299 A.2d 75 (Sup.

Ct. 1972), bail den. 409 U.S. 909, 93 S.Ct. 212, 34

L.ed.2d 170 (1972). KMven if such statements are made

While the defendant is in custody, the Miranda rule is

not brought into play if the statements are unsolicited

and not the result of any interrogation, Slale y. Gallicchio,

DL NwJ. 315, 240 Ad 166 (Sup. Ct. 1968), cert. den, 393

U.S. 912, 393 S.Ct. 233, 2b. Lilad.2d 198 (1968); State v.

Gosser, 50 NJ. 438, 445-446, 236 A.2d 377, 381 (Sup. Ct.

1967), cert, den. 3890 U.S. 1035, 88 S.Ct. 1484, 20 L.led.2d

295 (1968).

From the time the actual search was completed and the

recovered money counted petitioner’s presence at the police

barracks was entirely voluntary. [le was not under arrest

or otherwise detained or deprived of his freedom, and he

was free to go wherever and whenever he pleased. Com-

pare with Orozco v. Texas, 3894 U.S. 324, 89 S.Ct. 1095, 22

L.iMd.2d 811 (1969). The questioning of a suspect at a

police station need not be preceeded by the J/iranda warn-

ings so long as the suspect is not subjected to such a re-

striction of his freedom as to render him in custody. Ore-

gon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 500 L.bed.2d

714 (1977). While some doubt exists as to precisely what

cireumstances short of an aetual arrest will trigger the

warning requirements of Miranda, Slate vy. Godfrey, 131

N.J. Super. 168, 176, 829 A.2d 75, 79 (App. Div. 1974),

aff'd o.b. 67 NJ. 267, 887 A.2d 871 (Sup. Ctl. 1975), at the

very least, the State must engage in such conduct as would

lead the individual to reasonably believe that he is being

significantly deprived of his freedom at the time of ques-

tioning. See Iverson v. Slate of North Dakota, 480° V.2d

414, 422-423 (8 Cir. 1973), cert. den. 414 U.S. 1044, 94 S.Ct.

549, 38 L.Md.2d 835 (1973); United States vy. Mall, 421

F.2d 540 (2 Cir. 1969), cert. den, 897 U.S. 990, 90 S.Ct,

1123, 25 L.Wed.2d 398 (1970). Petitioner, however, was spe-

cifically advised he was free to leave prior to being ques-

tioned, was specifically advised that he need not answer

10

questions, that his answers could be used against him and

that he was entitled to seeure an attorney and have him

present during any questioning, and was practically foreed

to terminate the interview and leave the station. Under

such circumstances it is manifest that petitioner's state-

ments were not obtained in violation of the Miranda deci-

sion or his Fifth Amendment right against self-inerimina-

tion.

The faets of reeord, as determined by the trial eourt, do

not permit formulation and resolution of the question

stated by petitioner. Petitioner’s unsolicited statements

during the search were not the result of State questioning

or interrogation within the meaning of Miranda v. Arizona

and its progeny, and petitioner’s responses to questions

following the search were not obtained in a custodial situ-

ation within the meaning of Miranda y. Arizona and its

progeny.

1L

CONCLUSION

For the reasons set forth herein, it is respectfully

urged that the petition for a writ of certiorari should

be denied.

Respeetfully submitted,

Joun J. Deanan

Attorney General of Now Jersey

Attorney for Plaintiff-Respondent

State of New Jersey

State House Annex

Trenton, New Jersey OS8G25

By: Joun DeCioco

Deputy Attorney General

Joun DeCicco

Deputy Attorney General

Division of Criminal Justiee

Of Counsel

Anne C, Pasxow

Deputy Attorney General

Division of Criminal Justice

On the Brief