State v. JohnsonState v. Johnson
Defendants were convicted of murder in the first degree without recommendation. The death penalty was imposed. Pursuant to R.R. 3:7-11 an application was made for a new trial on the basis of newly discovered evidence. The application was made on affidavits and argument and was rejected. An appeal was taken to the New Jersey Supreme Court which by order dated May 2, 1960, ordered the trial court to proceed to take testimony on such grounds as the defendants specified. A hearing was held on May 23 and 24, 1960.
Before relating the evidence produced at the recent hearing a sketchy background might assist in understanding the plight of these three defendants.
The State contended and undoubtedly proved that on Friday evening, January 24, 1958, Edward J. Davis, who owned and operated a toy shop at 1731 Broadway, Camden, New Jersey, was fatally wounded and died 35 minutes after entering the hospital. The medical examiners concluded that
The principal witness for the State was one Noah Hamilton, who testified that six or eight weeks before the fatal shooting he had a conversation with the defendant Godfrey who asked him if he wanted to make some money and suggested a holdup of the toy store of the decedent. On the day following the alleged offense the State‘s witness, Noah Hamilton, an admitted friend of the three defendants, whose testimony also figures in this rehearing application, went with the three defendants to Newark.
The defendants did not take the stand in their own behalf.
Of particular significance to this background is the absence of any inference from any of the statements made by each of the defendants before the initial trial that the decedent Davis was in any business other than the legitimate business of selling toys.
DEFENDANTS’ CASE.
Sylvester Johnson
One of the defendants. He testified he requested of his attorney the privilege of taking the stand to testify but his attorney refused. His mother likewise asked for permission to testify and she was refused. He testified that he told his attorney that he was involved in narcotics but this evidence was not introduced at trial although he requested his attorney to make that fact known. He stated that he knew the decedent prior to the date of the fatal shooting. He stated that one Noah Hamilton owed him some money in the amount of $15 for narcotics which this defendant had delivered for Hamilton and decedent Davis, and that he was supposed to collect for this delivery from Hamilton but Hamilton said the money was due him from the decedent. He stated that he first met with the decedent through Hamilton in November of 1957, which was three months before the alleged murder, and the meeting came about as a result of the purchasing of narcotics from Hamilton; and on one occasion Hamilton suggested that since he was out of work that this defendant could make money by delivering packages for him and Mr. Davis, and as a result Hamilton took him to the decedent‘s store. While in the store Hamilton and decedent had a conversation not in his presence, and after the conversation was completed he heard Hamilton tell the decedent that he was the fellow who was going to deliver packages for Mr. Davis, whereupon Mr. Davis approved and advised him that Hamilton would take care of the defendant. He then went on to say that he and Hamilton made deliveries as agreed and that on each occasion a “delivery” was made, Hamilton paid him. He stated that before
On cross-examination he admitted that he had the opportunity to go over copies of his confession and did not call to his attorney‘s attention any fact stated therein that was not true, but insisted that he explained to his attorney that anything relating to armed robbery was not true. There followed a series of questions in which reference was made to the confession given by this defendant, but he repeatedly said that he did not remember any of the questions and his answers. He recalls being apprehended four or five days after the alleged murder. This witness testified that he told the authorities on being questioned that he was using narcotics at the time and that he knew nothing about armed robbery, and he explained that he was working for Noah Hamilton and the decedent and that everything that was contained in his confession was fed to him by a city detective; and although many of the questions asked therein might have been asked of him, he did not recall the statement and whatever statement was made, the contents were fed to him by the city detective. He admitted that he told this same detective that he knew nothing about armed robbery, but he did know about the murder and this knowledge was brought about by information given to him by the other two defendants. He stated that Cassidy, with whom he had entered the decedent‘s store, related to him what had occurred while they were in the store before the fatal shooting and that Cassidy told him that when he asked Davis (decedent) for money for delivering the package that Davis said Noah Hamilton had the money and that he and Davis had an argument and that Davis threw him out of the store the first time, but he does not remember entering the store and that his return to the store was related to
Alice Conroy
This person identified herself as Juror No. 13 and she was asked whether or not the jurors had discussed the case while they were staying at the hotel following the close of each court day. She stated categorically that the court had cautioned the jury not to discuss the case and as a result the case was not discussed and that at no time prior to the charge of the court did she hear anyone discuss the case as members of the jury.
Grace M. Wheeler
One of the jurors who was asked on the voir dire whether or not she or anyone of her friends or relatives had ever been a victim of a robbery at which time she answered, “No I have not, no one that I know of.” She was asked whether or not at this time she desired to change that answer and she stated that, “At that time I told the truth. I did not remember. I hadn‘t any reason to remember. In fact, the truth is this, that if I had known it, believe me, I would have told it if it had been any way of getting out of being on the jury.” It appeared that her husband had been the victim of an armed robbery. In fact there was some reference to more than one armed robbery and this occurred 18 or 19 years before the date of the voir dire and she had completely forgotten it and it was brought to her attention approximately six months after the trial had been concluded. However, the trial record indicates that Mrs.
Thomas G. Wheeler
The husband of the juror and previous witness, Grace M. Wheeler, related that in 1941-42 he was involved in three armed robberies at which time he was working for the Atlantic Refining Company and at the time of these robberies he was married to the juror. He admitted that he had discussed these robberies with her “at the time of the robberies.” He stated that there had been a discussion concerning his experiences after the murder trial had been concluded.
Barbara Molock
This witness was called to corroborate that on the day of the shooting she had been with Stanley Cassidy and in the afternoon she saw the defendant Johnson with the defendant Godfrey and that Johnson had an unusual attitude in that he did not respond to questions she asked him; that although he usually joked with her this day he did not and his eyes were “sleepy,” and although an effort was made through this witness to establish the fact that Johnson was under the influence of narcotics she admitted that she had never observed anyone under that influence.
Geraldine Hatcher
This is a sister of the defendant Sylvester Johnson. It was at her home that Johnson stated that he found himself the morning following the alleged shooting. She testified that he had an improvised tourniquet on his hand and that he looked funny, confused — his eyes red and pupils dilated. She stated that she was a graduate nurse and at the end of this
Allain Johnson
The mother of the defendant Sylvester Johnson. She started to relate that her son‘s lips and mouth were swollen when she saw her son after he had been picked up and brought to Camden from Newark. This testimony was apparently unexpected by defense counsel and he did not press this line of testimony. She stated that she had asked her son‘s attorney for the right to testify in his behalf and that his attorney advised her that he did not want to make a fool of himself and since the other two defendants were not taking the stand he was not going to put her son on the stand. She insisted that she told the attorney that her son wanted to take the stand and that he had a right to take the stand since his life was at stake. She claims that she was presented with a statement by the attorney for her signature, which statement has been marked in evidence and which statement she refused to execute. She claims that she never knew that her son took narcotics prior to the time of the alleged shooting. She does know that her son told his attorney that he took narcotics because her son told her he gave this information to the attorney. She also said that what her son told his attorney was written down and that her son was assured that this evidence would be used.
Vernie E. Jones
A girl friend of defendant Johnson who dated him frequently. She acknowledged having seen the defendant Johnson after he had used marijuana. This witness denied seeing the defendant Johnson on the day of the crime.
Noah Hamilton
This witness is an admitted dope peddler and user and a close friend of each of the defendants. It appears that one of the defendants, Sylvester Johnson, was indebted to him for drugs and about eight months before the fatal shooting Johnson, together with Godfrey, called at this witness’ home for drugs but was refused because Johnson allegedly owed Hamilton some money for drugs purchased earlier. On this occasion Johnson turned to Godfrey and said, “Let‘s go” and Johnson said he had another connection to purchase drugs and when he (Hamilton) attempted to ascertain from Johnson who that person was, Johnson did not respond but Godfrey did mention the name of the decedent Davis, a fellow who sold toys on Broadway. This alleged conversation took place approximately eight months before the fatal shooting. This witness although very friendly with these defendants was one of the State‘s principal witnesses at the original trial and his testimony played a big part in the State‘s case. Although at the original trial
Hamilton at no time was reluctant to expose himself to a nefarious trade or business and therefore it is proper to assume that there would have been no reluctance on his part to confirm decedent‘s business if it were as distasteful as these defendants want this court to believe.
Robert A. Jones
This witness was brought to this hearing from the New Jersey State Prison where he is confined and he was permitted to testify that while he was confined to the county jail he had a conversation with the defendant Stanley Cassidy and that Cassidy told him at that time he was an addict and although this line of testimony was in the nature of hearsay this witness was permitted to testify that defendant Cassidy told him that Davis was a dealer in drugs. There developed a new version of background history to connect the decedent Davis with the sale of drugs. This witness stated that Cassidy told him he was indebted to decedent Davis for drugs and that the decedent Davis would give him no more drugs until Cassidy “would come up with some money.” This story appeared to be so incredulous that the Court pressed the witness to ascertain whether or not he was certain about whom he was speaking and this witness identified the defendant Cassidy in the courtroom.
It is interesting to note at this point that defendant Cassidy who testified at this hearing denied being personally acquainted with the decedent Davis.
Arthur Cole
This is another prisoner from the State Prison who apparently attempted to give the impression from his testimony that he had delivered packages for decedent Davis and that he met Mr. Davis on an occasion when he entered the
Ernest Rodgers
This witness admitted he was a dope user and a convicted criminal and once was confined to the New Jersey State Mental Hospital and a lifelong friend of the family of one of the defendants. His testimony proved to be disjointed and inconsistent and contradictory. By this witness it was attempted to establish that the decedent Davis was a seller of narcotics. Although this witness never made any purchases from the decedent he attempted to create the impression that friends of his who were users had made such purchases since they had dope in their possession after they had entered the decedent‘s store and returned to his presence. He attempted to leave the impression that he was living in a home in close proximity of the decedent‘s store during the time the decedent lived but on cross-examination it developed that he moved to this address about three weeks before the date set for the present hearing. A careful analysis of all his testimony indicates so many inconsistencies and contradictions that it would be difficult to place any credence in anything he said under oath.
Wayne Godfrey
This defendant admitted that he had borrowed a gun from one James Walker the night before the fatal shooting and he said that he borrowed this gun to carry for protection because he owed a shylock named Roosevelt some money
On cross-examination defendant Godfrey denied that he ever offered to plead guilty to murder and kept insisting that his attorney advised him he had nothing to worry about concerning the electric chair. He admitted later that he knew there had been some attempts to get the State to accept the plea of guilty of murder so that the worst they could get in punishment for the crime was a life sentence. Defendant Godfrey, of course, denied the contents of his confession and when he was referred to the confession and its contents on cross-examination he attempted to create the impression that he had been using narcotics and had been bruised and hit and, therefore, was not clear of mind. Later on when references were made to portions of his confession, most of his replies were, “I don‘t remember.” He admits receiving a gun from a person named Walker which gun was fully loaded. The same gun was returned later to the person who loaned it. The defendant brought in the name of Patsy DiCarlo as the person who told him that the decedent Davis was a seller of narcotics and his only knowledge of the decedent‘s narcotic dealings was through Hamilton and DiCarlo. He denied the Hamilton story that he had ever been in the decedent‘s store and admitted that he had never gotten any drugs from decedent Davis.
Dolores Godfrey
Wife of the defendant Godfrey. She testified that her husband used marijuana cigarettes and had on occasions noticed the odor of marijuana within their home and found such cigarettes in his pockets which she threw away.
He stated that on the morning of the day that the shooting occurred he went with defendant Godfrey to the docks for the purpose of securing a job and although defendant Godfrey secured a job he didn‘t and Godfrey took him home. He states that Godfrey asked him to hold a pistol which he did. He gave a lie to Godfrey‘s story about the reason for Godfrey‘s carrying the pistol in that he, Cassidy, stated he did not know why he, Godfrey, was carrying it. He stated that he went with defendant Johnson to make a delivery of a package which Hamilton had given Johnson, which delivery was made to an individual at Broadway and Cooper. Later he met with defendants Godfrey and Johnson and he gave Godfrey the gun he was holding which Godfrey put in his pocket. He admitted that he also had a gun but did not take it with him when he left the house and that the only gun in their possession that he knew of was in Godfrey‘s possession. This defendant denies that he had a gun when they entered the store and upon entering the store defendant Johnson and decedent Davis started to talk while he was looking around at the toys and then he heard decedent Davis order Johnson out of the store. Both he and Johnson left the store but after they were on the outside Johnson said he was going back to get his money and this defendant attempted to persuade Johnson not to do so but they reentered the store and decedent Davis began to use profanity. He stated that he had never seen decedent before this day and described him as a pretty heavy man. He said that he heard the argument and then saw tussling after which he heard a shot and then another shot whereupon Johnson went into the back of the store and ran out a backdoor. Later he saw Johnson standing on a corner in a dazed appearance with a gun in his hand and he grabbed him and pulled him into the automobile. The next day he and Godfrey located Johnson who denied any knowledge of what had occurred on the night previous and they explained to
On redirect he claims that he asked his lawyer for the privilege of taking the witness stand. He also told the story that his attorney promised that he would not get the electric chair.
STATE‘S CASE.
David W. Ring
This witness was in the wholesale toy business and stated that he had been doing business with the decedent for approximately five years and that he sold him $35,000 worth of toys per year at wholesale which toys would have a retail value of approximately $50,000. He stated that he had extended credit to the decedent to the extent of $20,000 and decedent was a good account. He also stated that he knew decedent was making toy purchases from other wholesalers in addition to this witness. The purpose of this evidence
Elmer Bertman
An attorney-at-law who represented defendant Johnson who used the gun in the fatal shooting. He was retained by the defendant Johnson‘s mother. The attorney stated that Johnson told him that he had smoked marijuana on the day of the killing and he was satisfied that the defendant in this respect was telling the truth. He admitted that he did not permit his client to take the stand because there had been discussions among the three attorneys and the other two attorneys were also of the opinion that they should not permit their clients to testify. He stated that he made copies of Johnson‘s confession and gave him a copy and also gave a copy to his client‘s mother. He had asked defendant Johnson whether he could deny the contents of the confession and defendant said he could not. Defendant Johnson told him he did not remember the actual facts of the particular shooting. He stated that his client did ask to take the stand, and when he was asked what he could testify to, his answer was that he did not remember. Counsel felt that this answer would make a very poor impression and would undoubtedly be harmful to the defendant. He also felt that any reference to marijuana would do this defendant no good. Several days before the State rested its case he conceived the idea that he should have written authority from his client to exercise discretion as to whether this defendant should take the stand and, therefore, prepared Exhibit S-1 which he handed to his client and gave a copy to his client‘s mother. He said he had his client read it and in the presence of all three defendants the attorneys discussed it and it was concluded that they would not use the defendants as witnesses. The defendant Johnson signed the statement in his
The application for the new trial was based on alleged newly discovered evidence. To entitle a defendant to a new trial on that ground, defendants must show that the new evidence (1) is material to the issue and not merely cumulative or impeaching or contradictory; (2) could not in fact have been discovered before such trial by the exercise of due diligence; and (3) would probably change the result if a new trial were granted. State v. Richter, 21 N.J. 421, 424 (1956); State v. Bunk, 4 N.J. 482, 486 (1950); State v. Vaszorich, 13 N.J. 99, 130 (1953).
The only evidence that might fill the requirements of that rule produced at this hearing pertains to the evidence concerning a juror who upon the voir dire was asked:
“Have you ever been the victim of a robbery, or has any of your friends or relatives ever been the victim of a robbery?”
Her answer, “No, I have not, no one that I know of.”
Her testimony at this hearing indicates that the case of these defendants was not discussed during the trial between sessions by the jury since the court had impressed upon the jurors their duty was not to discuss the case until it had been concluded and they had reached the point of deliberating on the verdict. The fact that she stated she did not recall her husband‘s experience until six months after the trial was concluded would justify the inference that even if there was some discussion she did not talk about her husband‘s experience. Nevertheless, since she was not a part of the jury which rendered the verdict it can not be said that the jury‘s verdict was tainted.
Defendants in their brief infer that the Prosecutor may be withholding evidence that, if produced, may indicate that the jury was composed of another individual or individuals whose presence thereon was prejudicial to these defendants. The statement of these defendants is based merely on speculation and a desire to “fish” for something to base an attack on the theory of prejudice. There appears no justification in the record for this hypothesis. The onus of establishing the elements necessary to warrant a new trial is on these defendants and their failure to carry this truth does not justify this court in drawing upon its imagination
The factual situation presented by all the other testimony would seem to suggest the strategy that such testimony if it was presented could be considered by the jury in its deliberation of life or death for these defendants. Mr. Justice Francis in his concurring opinion in State v. White, 27 N.J. 158, 184 (1958) said:
“The mental status or capacity or condition of an accused is an integral part of the act of killing. Although he may not escape a verdict of guilt because the disability of his mind does not reach the point of insanity within the legal definition, the ordinary dictates of a humane society demand that in the formulation of the moral judgment as to the degree of responsibility for purposes of punishment, the evidence of such disability or departure from the normal ought to be considered relevant and material. In deciding whether the killer should be put to death it is inconceivable that, under any modern system of law, a jury should be denied all knowledge of a mental disability, short of insanity, which operated as a motivating influence in the commission of the crime. At this point in the proceeding, guilt of the crime is no longer in question; the sole issue is punishment.”
Of course this argument cannot be used to justify this motion under the doctrine of newly discovered evidence. The real basis for this argument would be the failure to comply with
Our
“In all criminal prosecutions the accused shall have the right * * * to have the Assistance of Counsel for his defense.”
Our State Constitution as well as the
“The adjective ‘effective’ came into the law in Powell v. State of Alabama (287 United States 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)) and was used by the Supreme Court to describe a procedural requirement. * * * it is clear from these opinions that the term ‘effective’ has been used by the Supreme Court to describe a procedural requirement, as contrasted with a standard of skill. The Court (United States Supreme Court) has never held that an accused is entitled to representation by a lawyer meeting a designated aptitude test. It has never used the term to refer to the quality of the service rendered by a lawyer. The Court (United States Supreme Court) has clearly established that an indigent accused is entitled to counsel, if he wants one, despite his inability to pay for the service; that appointed counsel must have reasonable opportunity to prepare for his task of defense; and that the lawyer so appointed must have no divergent interest. But the Court (United States Supreme Court) has not itself undertaken, nor has it imposed upon the inferior federal courts, the duty of appraising the quality of a defense. (Emphasis supplied.) * * * it has been repeated so many times as to become axiomatic that convicted felons almost unanimously relish the prospect of putting to public judicial test the competence of their erstwhile defenders; that almost any judge or lawyer can point to potential mistakes in reviewing the record of a lost cause; and that even trial counsel, having lost, can almost invariably enumerate what in the hindsight of disaster appear to have been errors.” Mitchell v. United States, 104 U.S. App. D.C. 57, 259 F.2d 787 (1958); certiorari denied 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958).
Diggs v. Welch, supra, most aptly stated the position of our courts in applications of this type by convicted felons:
“The Supreme Court [United States] has been jealous in preserving the right of every accused to a fair trial. It has held that a defendant‘s right to assistance by counsel is not satisfied by the mere formality of an appointment of an attorney by the court. There must be ‘effective’ representation. We are aware that if that word be construed in a broad and liberal sense it would follow that on habeas corpus the court would have to review the entire trial and consider all the alleged mistakes, failures to object to the introduction of evidence and errors in advice which the ingenuity of a convict could set down on paper during the enforced leisure of his confinement * * *.
The result of such an interpretation would be to give any Federal prisoner a hearing after his conviction in order to air his charges against the attorney who formerly represented him. It is well known that the drafting of petitions for habeas corpus has become a game in many penal institutions. * * * the opportunity to try his former lawyer has its undoubted attraction to a disappointed prisoner. * * * he may realize that his allegations will not be believed but the relief from monotony offered by a hearing in court is well worth the trouble of writing them down. To allow a prisoner to try the issue of the effectiveness of his counsel under a liberal definition of that phrase is to give every convict the privilege of opening a Pandora‘s box of accusations which trial courts near large penal institutions would be compelled to hear.
* * * few trials are free from mistakes of counsel. How much these mistakes contributed to the result can never be measured. There are no tests by which it can be determined how many errors an attorney may make before his batting average becomes so low as to make his representation ineffective. The only practical standard for habeas corpus is the presence or absence of judicial character in the proceedings as a whole.
For these reasons we think absence of effective representation by counsel must be strictly construed. It must mean representation
A defendant who appears before the court with counsel employed for his defense is not deprived of his constitutional right to assistance of counsel merely because in retrospect he concludes that such representation did not meet the standard of effectiveness. United States v. Malfetti, 125 F. Supp. 27, 29 (D.C.N.J. 1954).
In Norman v. United States, 100 F.2d 905, p. 906 (6 Cir. 1939), the defendant complained that her attorney dissuaded her from testifying and also failed to call witnesses who were ready to testify as to her reputation as to truth and veracity because the attorney felt that if she testified her reputation would be put in issue by the evidence which the Government possessed derogatory to that reputation and the court held:
“There are state decisions which hold that a new trial in a criminal case should be granted where the negligence of counsel is great or his mistake of law so serious as to deprive the defendant of the benefit of the important and material evidence which might reasonably cause the jury to return a different verdict.”
The court went on to say these cases “do not reach this case.”
In People v. Logan, 137 Cal. App.2d 331, 290 P.2d 11 (Cal. D. Ct. App. 1955), where the affidavit stated that defendants would have testified and would have called witnesses except for the advice of their attorneys, but they did not state that defendants or their witnesses would have given testimony contradictory of that introduced by the People, a claim by a defendant that his attorney exercised his own judgment and rejected the suggestions of the client during the trial is not a ground for granting a new trial.
In People v. Brothers, 347 Ill. 530, 180 N.E. 442 (Sup. Ct. 1932), a similar point was raised and that court disposed of the question by stating:
“Where the defense is conducted by counsel selected by defendant or by those to whom he entrusted that duty, it is only under very exceptional circumstances that a new trial will be granted on account of the manner in which the defense was conducted, or on account of a subsequently asserted dereliction of duty on the part of such counsel, and where it appears that in consequence of such dereliction of duty the defendant may have been unjustly convicted.” State v. Lindstrom, 180 Minn. 435, 231 N.W. 12 (Minn. Sup. Ct. 1930).
“Where an accused is represented by counsel and the basis of his claim is that he received poor advice, indicative of poor judgment on the part of his attorney, and acted thereon to his detriment, those facts, even if substantiated, do not amount to a denial of the right of representation.” People v. Logan, supra [137 Cal. App.2d 331, 290 P.2d 13.] People v. Miller, 114 Cal. 10, 45 P. 986 (Sup. Ct. 1896); People v. Lennox, 67 Cal. 113, 7 P. 260 (Sup. Ct. 1885); People v. Kirk, 98 Cal. App.2d 687, 220 P.2d 976 (D. Ct. App. 1950); People v. Gilbert, 25 Cal.2d 422, 154 P.2d 657 (Sup. Ct. 1944); People v. Ynostroza, 105 Cal. App.2d 332, 232 P.2d 913 (D. Ct. App. 1951); People v. Morton, 100 Cal. App.2d 269, 223 P.2d 259 (D. Ct. App. 1950).
To one charged with the administration of justice it is unwarranted to make the statement that perjury is forgivable but in this case where the extreme penalty is involved it is understandable. This court has been sympathetic
“* * * I do not mean that to justify a new trial, he must have been convinced — firmly or with a sense of certainty convinced — that the first story of the witnesses was false and that their new story was true. He might act upon a reasonable probability. But if, on the contrary, he was convinced that the second tale was false, that a criminal league had been formed to set at naught the verdict of the jury and the judgment of the court, his duty was clearly marked. * * * He was not at liberty to shift upon the shoulders of another jury his own responsibility. That would have been to make the conspiracy triumph. He was charged with a responsibility to seek the truth himself.”
“If new trials were to be granted on such evidence as proffered here the number of times a new trial must be had would depend solely on a defendants’ ingenuity, industry and imagination.” State v. Bunk, 4 N.J. 462, 490 (1950).
The application lacks merit and is, therefore, denied.