STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. EDWARD A. BURT, DEFENDANT-APPELLANT.
Supreme Court of New Jersey
July 27, 1971
Argued January 26, 1971
It seems to me that the result reached by the majority flies in the face of these prior decisions and their rationale, and is a step backward in the resolution of inter-governmental land use regulation conflicts.
I would affirm the judgment of the Law Division.
Justice Mountain joins in this opinion.
For reversal and remandment-Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR and SCHETTINO-5.
For affirmance-Justices HALL and MOUNTAIN-2.
Mr. Arthur Penn, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Mr. Arthur Penn, of counsel and on the brief).
Mr. I. Michael Heine, Assistant Prosecutor, argued the cause for respondent (Mr. A. Donald Bigley, Camden County Prosecutor, attorney).
HALL, J. (concurring in part and dissenting in part). Only two points are made by defendant upon our grant of his petition for certification (55 N. J. 588 (1970)) following the Appellate Division‘s affirmance of his conviction for second degree murder and a 25 to 30 year sentence imposed therefor. That tribunal‘s opinion was published only in part. 107 N. J. Super. 390 (1969).
Defendant‘s first contention is that his right to remain silent in police custody was infringed by two questions asked of him by the prosecutor on cross-examination, after he had testified on direct examination that the fatal shooting of Robert “Shorty” Owens was accidental, and by the prosecutor‘s later comment thereon in summation. The essence of the question was whether he had ever told the accidental event story to the police, to which he replied in the negative. The Appellate Division‘s view that the question and comment did not amount to error constitutes the published portion of its opinion. 107 N. J. Super. at 392-393. I concur in the result reached on this point.
The second contention is that the sentence is excessive. The Appellate Division rejected that claim in the unpublished portion of its opinion. I disagree with the majority‘s affirmance of that conclusion.
Some further comments should be made in connection with the first point, since I feel the Appellate Division conclusion may be too broadly expressed. A fuller recital of the state of the proofs at the time the challenged questions were asked is desirable in order to place the issue in full context. These proofs have many bizarre aspects. (They also bear upon my view of the matter of sentence.)
The state sought a first degree murder conviction, with the death penalty, based on a killing in the course of attempted robbery of the victim or on a wilful, deliberate and
Mrs. Adams (age 61) was a longtime “intimate” friend of the decedent (age 52). She lived in Philadelphia and was in the habit of visiting him periodically at his home in Camden. She testified that on the day in question she arrived at the home about 6:00 P.M. and found him and defendant (age 32) sitting at the dining room table drinking and talking. She had not previously known defendant and was not introduced to him by name.
How defendant came to be there was not explained until he testified. He was a friend of Shorty‘s of long standing, particularly when both lived in Glassboro. He now lived with his wife and children in Philadelphia and had not seen Shorty for six months. On this day he had taken a bus to Glassboro to see his brother, who was working and not at home. He then stole a car from a parking lot in that town and drove to Gloucester City to his brother‘s place of employment. Unable to see his brother there, he drove to Camden and visited his union headquarters and the unemployment office, apparently to see about work. (He had been employed for some time at Trio Tire Company, a tire retreading establishment in Clementon, when work was available; at the moment none was and he had a temporary job in Philadel-
To return to Mrs. Adams, she testified that after her arrival, drinking, talking and record playing continued for another hour, with everyone in a friendly mood. It seems evident that by that time both men had consumed considerable whiskey and beer. Shorty then stated that he had had enough to drink, had some business to attend to and wanted to go visit some relatives. Mrs. Adams, who was to accompany him, went upstairs to change her shoes. She said that as soon as she reached the bedroom, she heard a scuffle, a groan and a shot from a gun downstairs. A second shot followed and the sound of someone falling to the floor. Defendant immediately came up the stairs with a gun in his hand, said Shorty was dead, that he was going to kill her and “blow your brains out just like I blowed his out.” He demanded money and took $5, all she had. He then commanded her to undress and raped her. Thereafter he told her to dress and that he was not going to kill her. She said he required her to accompany him, at gunpoint, out of the house and to the car parked some distance away. He drove her to the bus station to return to Philadelphia. On the way he had her write his telephone number on a card taken from the car‘s glove compartment (which she later turned over to the police).
Defendant‘s story of the shooting was quite different. He said that after Mrs. Adams arrived, Shorty became unfriendly and acrimonious conversation developed. While the testi-
Defendant said that right after the shots he found himself holding the pistol by the barrel, with Shorty slumped on the floor. Mrs. Adams screamed and asked what had happened. He responded that Shorty had tried to kill him and that he was leaving. She asked not to be left alone and he told her to come downstairs. When she did they left the house together and walked to the car. He then drove her to the bus station. It is undisputed that he neither sought aid for the dying man nor did he communicate with anyone about the occurrence. He admitted, in cross-examination questions just before the query challenged here, that he did not know whether Shorty was alive or dead when he left the house.
To complete the summary of the proofs as they stood at the time of the cross-examination involved, reference should be made to further events after the shooting. The state‘s proofs did not account for defendant‘s whereabouts after he dropped Mrs. Adams at the bus station until some hours later. A Clementon police officer on patrol noticed a broken window in the Trio Tire establishment (where, it will be
The fact of Shorty‘s death came to light late in the evening when his son went to his house and found his body. The Camden police were called. At that point they knew nothing about defendant. The pieces were finally fitted together during the night. When Mrs. Adams reached her home in Philadelphia, she told her daughter and son-in-law what had happened. The Philadelphia police were advised and, after some delay, the Camden police were notified and Mrs. Adams went back to Camden and told her story, implicating defendant who was then in the jail on the Clementon charge.
With the proofs in this posture, the prosecutor opened his cross-examination of defendant by exploring, as previously indicated, the fact that he did not know whether or not Shorty was dead when he left the house and that he did not make any effort to find out. A few questions later the interchange grounding the issue before us took place:
Q. Did you ever tell this story to the police?
A. No, sir.
Q. You are telling us now this shooting was accidental, is that correct?
A. It was accidental, sir.
Q. But you never told the police that?
A. No, sir.
There was no objection by defense counsel until the next morning when counsel asked for “a curative instruction,”
The subject was adverted to somewhat differently on two other occasions during the lengthy cross-examination. At one point this took place:
Q. And it didn‘t occur to you to call anybody or tell anybody about what had happened?
A. No, sir.
And at another, this exchange occurred:
Q. And you didn‘t tell — up to the time you got to the Camden jail you didn‘t tell anybody about Shorty, did you?
A. No, sir.
Q. Did you tell anybody about Shorty after you got to the Camden jail?
A. No, sir.
Q. When was the next time you saw Everline?
A. Early that next morning. [At the Camden jail]
Q. And after you saw Everline early the next morning, did you tell anybody about what happened to Shorty?
A. No, sir.
This aspect was referred to twice, quite casually, in the prosecutor‘s summation. I say casually because the theme of the summation, in support of either prong of the state‘s first degree murder theory, was that, chiefly because of the theft of the car earlier in the day and his breaking into the tire establishment in the evening, defendant was a bad man
The charge here is murder, ladies and gentlemen, and the State is asking for the death penalty. This defendant is no innocent little fellow. The defense makes light of what they admit he did, as if this were nothing at all. These admissions play a significant part, as I hope to demonstrate to you later on, ladies and gentlemen, of the pattern that resulted in the murder charge that we are trying here today, and it is not me or the police or Everline Adams who did anything wrong, but if you so find it is the defendant, this is the man who admitted he wasn‘t sure that Shorty Owens was dead, but he walked out of the house without even attempting to find out whether Shorty Owens was dead or not and before he does go, what does he do? He doesn‘t go up to the first person he sees or to the police or anybody and say, “I just accidentally shot somebody,” which he is trying to tell you he did now. He doesn‘t do that. He goes down to Clementon and breaks into another place, so let‘s not get any twisted or warped conception from the defense counsel‘s argument about just what happened here or where the responsibility lies.
Later on, this observation was made:
He never told the police he accidentally shot Shorty Owens, never, at least up until the time he was lodged in Camden County Jail, and yet he is here, sitting here today asking you to believe this story.
If this was an accidental shooting, why didn‘t he go and say, “I just accidentally shot somebody“?
He didn‘t do this, he didn‘t do this and this fits in, as I said before — I am repeating myself a little bit here — this fits in with our theory that he had something in mind when he took that car off that lot, something in mind of a criminal nature.
It is to be noted that nowhere in the case was any evidence introduced that defendant had been interrogated by the police at any time about Shorty‘s death or that he had made any inculpatory or exculpatory statements, had stood mute or claimed his privilege against self-incrimination. Even abstractly, therefore, this case is not like State v. Ripa, 45 N. J. 199 (1965), in which it was held to be reversible error to permit testimony on the state‘s case, as evidence of guilt, that the defendant had refused to answer police questions about a homicide. Nor is it like Grunewald v. United States, 353 U. S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931 (1957), heavily relied on by defendant, which directed a reversal because the prosecution was permitted to bring out on cross-examination of a defendant that he had claimed the Fifth Amendment privilege and refused to answer questions before a grand jury which, when asked him at the trial on direct examination, produced exculpatory answers and because the prosecution had been permitted to comment thereon in summation by way of attack on the credibility of his trial testimony. Rather, looking solely at the question about defendant‘s failure to tell the police the accidental event story, in the light most favorable to him, this case seems to fall within the category of decisions dealing with cross-examination questioning and summation comments that relate to a failure to previously volunteer an exculpatory explanation testified to at trial, as a means of challenging the credibility of the testimony. The cases appear to be split in this general type of situation, with no holding by the United States Supreme Court thereon. See, e. g., finding such a course not erroneous, Sharp v. United States, 410 F. 2d 969 (5th Cir. 1969); cf. State v. Kimbrough, 109 N. J. Super. 57, 67-68 (App. Div. 1970); United States v. White, 377 F. 2d 908 (4th Cir.), cert. den., 389 U. S. 884, 88 S. Ct. 143, 19 L. Ed. 2d 180 (1967); and finding error, Fagundes v. United States, 340 F. 2d 673 (1st Cir. 1965); Fowle v. United States, 410 F. 2d 48 (9th Cir. 1969); United States v. Brinson, 411 F. 2d 1057 (6th Cir. 1969).
But the issue need not be resolved, since the questions objected to cannot be looked at so abstractly or narrowly. When considered in the context of the quoted related questions and summation comments, it seems that the prosecutor was realistically only trying to bring out the perfectly relevant point that a man would not leave his friend, critically injured by a shot, without seeking assistance for him or at least telling some third party about the situation, if his claim of an accidental event were true. There can be no doubt that the questions would have been proper if they had been
Moreover, all of this questioning and comment was quite incidental and represented only a minute fraction of the testimonial evidence and summation argument. As earlier pointed out, the prosecutor‘s thesis of guilt that he stressed to the jury rested upon quite a different hypothesis.
Finally, the rationale of the latest decision of the United States Supreme Court in an analogous situation, handed down since the oral argument of this case, may well be said to indicate that that court would find the particular questions here objected to entirely permissible in their context. I refer to Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). There it was held by a divided court that inculpatory statements taken from a defendant in violation of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), which were inconsistent with his trial testimony, could be used to impeach his credibility. Chief Justice Burger epitomized the holding in saying: “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” (401 U. S. at 226, 91 S. Ct. at 646, 28 L. Ed. 2d at 5).
This brings me to the matter of the question of the sentence. The jury, in my opinion, most properly rejected the first degree murder theories. Upon the evidence, as sparse
For affirmance-Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR and SCHETTINO-5.
For modification-Justice HALL-1.