*1 JERSEY, PLAINTIFF-RESPONDENT, THE STATE OF NEW LAWS, v. HORACE NELSON DEFENDANT-APPELLANT. JERSEY, THE STATE OF NEW PLAINTIFF-RESPON- DENT, WASHINGTON, v. JOHN DEFENDANT-APPEL- LANT. Argued May 23, 1967 September 25, 1967. —Decided *6 L. Bertini Mr. Charles the cause for argued appellant Nelson Laws. Horace E.
Mr. Gerald for Monaghan argued cause appellant John Washington. Gallahue, Jr.,
Messrs. Richard F. Aronsohn Thomas J. Prosecutors, Assistant the cause for Special argued respond Galissi, ent New W. Jersey (Mr. Guy Bergen County State of Prosecutor, attorney). delivered court was opinion J. The defendants Laws and were
Jacobs, indicted, others, to commit armed along conspiring and for murder. were robbery They convicted of murder in the first and were sentenced to death. degree They were convicted on the but conspiracy also sentence charge that was to this suspended. They appealed Court as of R. R. 1:2-l under (c). right early hours of
During morning April there an armed at the robbery Public Service Coordinated Christopher Jaeger, in Oradell. terminal Transport’s garage driver, by pellets a Public was killed Service bus The State’s evidence fired one of the robbers. shotgun as to but need be sum- only detailed robbery was quite men marized here. about 3 m. three entered Oradell At a. terminal. which covered their heads They wore ski masks and mouths. also eyes They and had for their openings Two of the men were wore flesh-colored surgeons’ gloves. tall. The short men carried revolvers short and the third was and the tall man The tall man did most shotgun. carried with a southern spoke limited amount of He talking. and, drawl while there had been earlier variations their the witnesses at the trial descriptions, generally agreed he was brown or dark The short men were complexioned. *7 described as invariably Negroes. several of
The robbers herded the Public Service em- Ellis, into the cashier’s office. There handcuffed they ployees man, G-riener, drivers, a Elliot and maintenance bus and Jacobus, a who had been bus driver temporarily assigned as cashier and Public Service duties master. by depot were forced the robbers to lie employees by by The side the floor of the cashier’s office and their side on mouths were covered with white adhesive eyes tape. and The rob- the safe in the cashier’s empty bers then office. proceeded had and had contained between 20 open The safe been and office, After the robbers money. left the cashier’s bags a heard loud and then heard an auto- employees bang and off. It sounded to them like starting up driving mobile a a car or hot rod.” “souped-up employees managed The handcuffed push button an alarm in other which sounded of the terminal portions Quinones, In Public response, mechanic, Service garage. in. He announced that had been Jaeger ran shot and an and ambulance be asked that called. In due police arrived and found time the police Jaeger’s body lying A doctor connected with garage. Bergen County office also Medical Examiner’s arrived and ordered the body which, disclosed an autopsy performed removed. He Al- brain. had entered and wadding pellets shotgun was not robbers by taken amount exact though established event, later investigation known at the time of the amount approxi- $20,512.60. Of had stolen they in bills bills, $2,000 dollar $10,000 was in single mately except rest in coins denominations, and the of higher in checks. $1,000 about one Dennis 26th, hours of April the early evening
During house York, New station Spring Yalley, was at the Kingsley about Dennis was asked Police Kraniac. to Chief of talking Yalley Spring at Service Station Gattuso’s burglary had been perpe- indication that it and Dennis some gave and one Peter older brother Joseph Kingsley trated been a big whether there had Dennis first Kostas. inquired later told Chief Jersey, New County, robbery Bergen planning. Bergen Kraniac that he knew about its thereafter shortly office was called and Prosecutor’s County of the prosecutor’s two representatives Dennis accompanied made statements station. He police office to the Oradell in New York the issuance of search were followed which including and the search of several apartments warrants Thereafter Washington. Bergen of Laws those returned murder indictments Jury separate Grand County Baker, Austin Laws, Joseph Kingsley, Washington, against A Roe. indictment was Doe, conspiracy John Richard all of the aforementioned except Joseph against returned *8 forth the name Later the indictments setting Kingsley. the name of Doe were amended to substitute of John in its stead. Julian Smalls trial,
At the Dennis testified effect: His following had worked at the Oradell terminal and had told brother “an him it would be to knock off.” About easy place 1965 he and his brother were at the mid-April apartment Laws who of the defendant was known generally as “Hap”. The defendant was also Washington there with some along men. Dennis saw his brother and other leave the Hap living 18th, Dennis Sunday, April On room to talk privately. Laws told brother. for his looking went to Laws’ apartment “a job arrested for safe had been him that his brother in the Laws’ apartment, While Dennis was Spring Valley.” in. of these men came One and two other men and Dennis about his gun was Smalls complained Smalls. hotel room. Laws from his brother’s offered to get gun automobile. Plymouth to his keys then gave Washington Smalls, went Dennis, with Washington along returned to the They could not find the gun. hotel but left for a few minutes and then Washington Laws’ apartment Wash- shotgun. an old single-barreled and came back with red and shells. green shotgun had five or six ington how to load the then shotgun, Laws showed Washington out duffel green bag. into the bedroom and brought went three ski masks. Dennis He and took out opened bag red with blue stitching. one as predominantly described out three of flesh-colored pairs Dennis also saw Laws take Laws left point apartment At that gloves. surgeons’ Baker’s car. Laws he was Austin get saying going and, about two shortly returned to the apartment an Smalls and unnamed 19th, morning April Washington, driver, left with Dennis as truck described person them luck. about 3 :30 the telephone At wishing Laws M.,A. say in Laws’ and Dennis heard Laws apartment rang on the there and not on the way he was it glad happened 4:30 A. m. the three men returned back. At about way dead. Laws that their car had gone telling the break- independent testimony corroborating There call to Laws’ apartment. down of the car the telephone Felice, Cab, Mr. an of Comfort Inc. testified that employee 19th, 3 a. m. three Negroes (Washington, about truck driver were came to his Negroes) and the Smalls Road in River be- help office on Kinderkamaek Edge get had broken An at jump- cause their car down. attempt an the car was made of the Cab employee starting men but was unsuccessful and the returned Company *9 him to a the office and made call. The records telephone New Bell that at Jersey Telephone Company established 3 :49 A. m. a call made from 6-7324 was Comfort Cab AU which was the number in Laws’ telephone apartment. When Laws testified in his own he defense acknowledged that Dennis home on was at his 18th but denied that April he stayed at the Laws’ apartment Laws through night. testified that left by Dennis about and that midnight call him telephone received in the early hour morning a, call was to him from Dennis. at 7:30
Dennis testified that A. m. on Monday 19th April he, with along Washington, Baker, Laws and drove in Road, Laws’ a side Plymouth to street off Kinderkamack River Edge. they There pulled front of up Baker’s Oldsmobile. then a took duffel Washington green bag the trunk of the Oldsmobile and in the it trunk placed Plymouth. Dennis succeeded in the Oldsmobile starting all they then drove back to New Mr. Rush, York. a resident of River testified a ear Edge, that he saw which he later identified from photograph Plymouth, as the pull which up Oldsmobile had been beside parked He he driveway. said that saw four men, one of whom was colored, white and the others between standing the cars. Baker, Austin who testified that he had loaned his car to knowledge use, Laws without of its intended stated that he had Dennis, with gone Laws and another to New Negro Jersey back his bring Oldsmobile. and Laws, Baker as are well Washington, Negroes Dennis is white. Dennis testified that about noon on 19th April he went and Laws to Washington at 145th pawnshop Street in New Eighth Avenue York Laws City. pawned a for $30 and ring Washington pawned $3. watch Laws that he was in acknowledged but pawnshop denied he had there with Dennis and gone He Washington. testified he leaving that as pawnshop saw Washington there. proprietor testified pawnshop tickets issued to Laws and pawn were numbered *10 The transactions. 18781 and consecutive indicating p. the in 6 on day was from a. m. to m. and
pawnshop open and subse- 46 transactions prior there were question Washington. Laws and those of quent 27th, on various April a of Laws’ apartment search During a included They the officials. by were seized police items a cartridges, lady’s handbag, duffel .38 caliber green bag, Most currency. a States valise, $2,784 and in United brown and found in the valise and handbag of the was currency a sill. in a dresser window along some was found drawer (cid:127) bills. currency single all of in dollar Some Almost the which of bills contained were markings unequivocally these Jacobus, namely, Public by four Service cashiers identified Hanson, own individual Hill, markings. Mattson and as their a addition, by handwriting In the State presented testimony as by were made the same hands markings expert made on identified as been having by those samples cashiers. 1st, a apartment May search of Washington’s
During bills mattress, found 533 dollar under single the officers drawer, in a and a piece dollar bills dresser paper single Laws name telephone number of and the “Hap” also it. The officers found letter to Washington after Stevens, name and address of Margie return bearing Street, City. New York The later 209 West 147th officers address, bed, saw there in went to that lying and seized dollar bills. apartment, single searched bills Stevens stated were not hers. The Margie Public Service cashiers identified some of unequivocally well bills them, as as some seized Washington’s own bearing own their individual apartment, markings. their occurred, In how markings cashiers describing that it was their practice receive bills and coins testified arrived at from the bus drivers as the terminal they garage. coins were counted machine by The but bills were hand. The bills would be by counted lots of 50 piled bands would be placed and rubber around them. When the amount $50, received the driver was than less bill marked top and, would be with the total temporary in, when another driver came would be the pile supplemented total $50. sufficient number bills to markings were each cashier in his individual placed by fashion none of the cashiers evidenced any hesitancy identifying his own markings.
No would be purpose served discussion by lengthy testimony additional introduced the State some although it may be mentioned in Two Public Service passing. employees identified Laws’ as the car saw Plymouth they n. around the Oradell 10 m. cruising terminal between *11 22nd, several before midnight April days the robbery. The Public Service cashiers identified several red small metal which were found in caps, Plymouth Laws’ after the from or robbery, coming similar to at- being caps the tached to the money stolen the A bags during robbery. fire- arms that expert testified the from pellets taken wadding Jaeger’s came body shells similar those Remington in seized Laws’ And a apartment. police expert testified as the of the “street talk” used in a meaning incrimi- highly note nating written Laws while he in custody was after the Laws the robbery. this acknowledged of note writing denied related but that it or robbery the distribu- of tion thereof. proceeds
The defendant not in testify did his own but behalf did present testimony through witnesses which included Stevens. She said that he Margie was with her at her in New York apartment during of the morning rob- bery. The Laws in defendant testified his own behalf and denied all of or knowledge in participation robbery. found both defendants of guilty having conspired
commit the and of robbery in murder the first That degree. firmly the evidence supported jury’s findings appears clearly from an examination record; of the entire indeed, the joint brief submitted by the defendants in support of their respective appeals does not at any point attack the However, it does the evidence. sufficiency of or
weight will now which be of error alleged legal advance points considered. issued by Judge warrants the search 1 and 2 attack
Points of New York. City Court the Criminal Murtagh County of the Bergen Captain Spahr On April a warrant Murtagh to Judge applied Prosecutor’s office 8 at 290 No. apartment of Laws’ the search authorizing an af- He submitted Street, Citjc New York 147th West which set affidavit own, with Dennis’ along fidavit of his that affidavit and read Spahr’s that Dennis had forth knowl- true to Dennis’ own set forth were statements there in- Dennis, a confidential stated that affidavit Spahr’s edge. had violated section formant, told him that Hap had Laws, Consol. York, McKinney’s of New Penal Laws .38 he, Dennis, shotgun had seen c. and that It 18th at set premises. on April Hap’s caliber revolver conspiracy Hap’s had told about forth Dennis and that robbery proceeds to commit the Oradell home af- to Hap’s apartment. Spahr’s to be taken thereof were also to statements Dennis that saw fidavit referred would said be surgical gloves Hap ski masks and the terminal. Towards close used robbing affidavit, upon stated basis Spahr “foregoing and his there reliable information” personal knowledge *12 $12,000 silver, $13,000 in cause to believe in probable a revolver, a .38 caliber would be currency, shotgun, a warrant found in and that search should Hap’s apartment forthwith because there was that the danger be issued prop- moved. would be erty
The affidavits contained more than enough upon warrant could issue. properly They which search set which were openly forth ascribed Dennis as the specifics and which tied well with the actual informant robbery. defendants, while the affidavits ac acknowledging set forth some information curately given by Dennis stress that the affidavits Spahr, also contained Captain
173 inaccuracies. But that would not serve to many invalidate where, here, the search warrant at least as information crucial and accurately set forth the affidavits was suffi cient to establish cause. v. United probable Rugendorf Cf. States, 887, 376 84 11 L. 528, 532, 825, U. S. S. Ct. Ed. 2d 891 236, United States v. 351 F. 2d 241 (1964); Bowling, F. (6 Cir. see also v. 257 1965); Halsey, United States 1002 D. N. Y. Supp. 1966). (S.
It must be borne in mind that the affidavits were drawn of an by non-lawyers the midst and haste urgent Ventresca, criminal See v. 380 investigation. United States U. 102, 108, S. 85 Ct. L. Ed. 2d 741, 684, S. 689 (1965). should They be read rather than sensibly hypercritically should be deemed legally sufficient so contained long they factual assertions which would lead man prudent to be lieve that a crime had been evidence, committed and that fruits, or instrumentalities of crime, were at the place to be searched. sought See State v. N. J. Boyd, Not (1965). only before Captain Spahr sworn Judge but so also Murtagh was Dennis. Dennis in effect swore that he had been in Laws’ had in apartment, heard criminating plans, and had revolver, seen shotgun, ski masks surgeons’ gloves, items which corresponded those described by the Public Service at the time personnel of the robbery. Surely totality the circumstances was such as to engender reasonable belief that the robbery had been at Laws’ planned and that apartment search thereof would as it produce, did, evidence incriminating including some Even proceeds. if the issue were considerably closer than it now appears be, we would decline on this to differ with appeal Judge Murtagh’s conscientious determi nation that probable cause existed on the before showing Mark, him. See v. N. J. 262, 273 : (1966) issuing judge “This Court has held that the State must make the underlying justify prudent aware of facts which would man in believing being (State that an offense has been or is committed Macri, (1963)) ; 39 N. J. but it has also held that the State *13 174 trustworthy hearsay evidence, is that all of its not disclose need (1963)), Burrachio, (State N. 275 39 J. admissible probable finding considered
issuing judge’s existed will be cause warrant, validity tending uphold substantial factor as a appeal though upset issuing on not be it will his action in and that Zuzulock, N. J. State v. a close one. matter be viewed as (1963).” at 46 N. J. 273. had so proved Laws’ apartment of the After the search on was made to Judge Murtagh an application productive, the search of authorizing Apart- a warrant 1, 1965 for May Street, City New York where 15 West 139th 7N, No. ment with his At this parents. lived defendant Washington him, the earlier only had before not Judge Murtagh time Dennis, affidavits De- but also affidavits of Spahr New York Police Department of the Patrick McKee tective Prosecutor’s County of the Bergen Detective Allmers Dennis had Allmers’ affidavit set forth that Detective office. from a as police photograph John Washington identified Laws’ apartment April of the conspirators one identified fact that as currency, part It referred to the 18th. from had been recovered robbery, of the of the proceeds arrested, that, had been that Laws Laws’ apartment, Dennis, additional received to information according found in Washington’s apartment. would be proceeds justify was sufficient to patently the foregoing Although warrant for the Washington apart of a search issuance Dennis, with who by telephone ment, Murtagh spoke Judge oath, Jail. Dennis County Under Bergen then from police had identified Washington him that he told and that of the conspirators part one of the photograph found in the Washington would be robbery proceeds by telephone also Murtagh spoke Judge apartment. oath, under that he who stated Prosecutor Galda Assistant Dennis and Dennis photographs shown several had as one of the Al conspirators. had identified address challenge propriety the defendants though action in sworn statements over taking Murtagh’s Judge Jur. Am. Oath and telephone (cf. § Affirmation *14 for, we not concern with it we need ourselves as (1942)), stated, for have there was cause the issuance clearly probable of the warrant without to furnished regard support information. confirmatory telephone Point 3 of the brief contends the joint that trial a fair In motions, denied the defendants trial. Laws pretrial moved for Washington severances which were denied. The denials were exercises of the proper trial court’s dis cretion under the of court authority the rules of and the judicial :4-7; :5-6; See R. R. 3 precedents. 3 R. R. R. R. 3:5-7; v. 26 Manney, 362, State N. J. 365 v. (1958); State Aiello, N. 465, denied, 91 J. 48 J. 457, certif. N. Super. 138 87 denied, 2106, certiorari 388 U. (1966), 913, S. S. Ct. Coleman, 18 L. Ed. 2d State N. J. (1967); cf. denied, certiorari 383 U. 86 Ct. (1965), S. S. 1210, 16 L. Ed. 2d 212 (1966). Washington that, contends since the evidence Laws was than the against stronger evidence him, he entitled against to trial. separate But not issue is of the evidence respective weights but the of fairness the trial as to each defendant. Throughout trial judge carefully advised that it should consider the evidence to each defendant separately his individual or determining guilt was, innocence. There course, for ample reason trying Laws Washington and the jointly record contains nothing indicate that either of them was denied the basic protections fair trial.
The defendants also complain they were preju diced fact that Baker had been tried with them. Baker was named as a Although defendant, the State called him, with his counsel’s consent, as one its witnesses. He testified that when he his loaned car on April 18th to Laws, he did know not of its intended use and the State moved his thereafter acquittal. judge directed The^trial thereupon there was acquittal motion for mistrial which was denied. defendants suggest trial knew before it would move fox Baker’s acquittal record but the does not establish that fact. In any event, or Laws either before us indicates that nothing from his Baker or joinder from the suffered prejudice be ad- so, may criticism which any being That acquittal. reason not constitute tactics does dressed the prosecutorial B. B. here. See appeal the convictions under for reversal of 1:5—1. the exclusion contend that
In Point the defendants them of their deprived court room of a spectator on the witness Dennis was While rights. constitutional mother exclude his be trial court stand asked the first, testimony. At counsel her inhibited his presence cause *15 exclusion, to her he no objection for Laws stated that had voiced coun objection, his but when counsel for it. trial ordered the ex in The court sel for Laws joined of the remainder his of Dennis’ mother during clusion free from we question, While this was not testimony. ruling it. by They the defendants were prejudiced fail to see how which none their friends or a full fair of had and trial Haskins, N. v. 38 J. Super. excluded. relatives was State Cf. The Div. indicate that 250, 1955). precedents 255 (App. in had measure of discretion the prem the trial court some Genese, J. & 102 N. L. 142 A. 134, (E. ises v. (State 18, 103 N. J. L. 20 Unger, (Sup. State v. Ct. 1925); 1926), & J. L. 448 A. and its affirmed, ruling 104 N. (E. 1928)) freer ascertainment of motivated towards undoubtedly circumstances, it would the disserve the clearly the truth. In on the to reversal exclusion of justice ground interests witness’ mother. 5 11 address through
Points themselves to al in the trial judge’s charge jury. errors leged Hale, entirety (State in its v. 45 N. must be read J. charge dismissed, 884, 384 U. 255, S. 86 (1965), appeal 264 S. Ct. and, L. Ed. 2d 1001 1981, (1966)) read, 16 as thus it set forth the fairly controlling legal principles and fairly factual crucial issues to submitted the for its de The trial did not use judge the precise termination. language the defendants their to requests forth charge set but
177 admittedly he was no do so. under to See State obligation Brown, v. 46 107 N. J. his review (1965). Although inaccuracies, contained minor testimony was care ful advise the that its recollection of the jury repeatedly testimony was to its rather than deliberations, govern recollections the trial as respective expressed judge, counsel, or of charge, as in their expressed summations. It is course well settled our State that the trial judge has and oftentimes the review right, the testi duty, it, mony comment so upon clearly as he leaves to long here, jury, the ultimate determination of the facts just of a and true on the rendering verdict facts as finds them. v. J. 94 Parker, it See State 33 N. (1960); Hood, Borowicz v. N. J. 423 Super. 418, (App. Div.), denied, Block, certif. 45 N. J. (1965); cf. L. 277, N. J. L. Ct.), aff'd, 121 N. J. & A. (Sup. (E. 1938).
During charge, trial noted that judge several were witnesses cross-examined with to earlier con respect made tradictory pointed statements them. He out that earlier statements would not constitute substantive evi but dence would serve neutralize the effect of the con at flicting offered trial. testimony represented This gen erally accepted doctrine affords no sound basis for the *16 complaint Wigmore, advanced the defendants. Evi by See McCormick, 1018, dence ed. p. 687 Evidence (3d 1940); § 39, p. 63(1) but Evidence Rule effective (1954); § cf. 11, 1967, Joint Resolution No. 191st September Legis lature, Regular (May 9, 1967), 2 N. Session J. Sess. Laws 159 (1967). Serv. complain defendants about the judge’s charge subject the of alibi but we find to charge
on the have been and The trial told non-prejudieial. judge the adequate that, whereas the of the defendants at jury presence the and of alleged time the crime was an essential link in place chain of proof, presence, any the “such like other essential must be established the a by fact State beyond reasonable had out that the defendants point He went on to
doubt.” at time were not present evidence that they presented was known in that this defense of the crime and place 44 N. J. 268 Garvin, (1965). the law as an alibi. State v. Cf. that in considering the jury He then told the members of find they could a defendant was not present evidence that absent, he was that was that present, either the defendant of degree uncertainty or that the created such testimony beyond satisfied they as that were not to whereabouts as charged of his of the crime guilt reasonable doubt alone “if the of that testimony question indictment and an entitled to doubt the defendant is reasonable raises acquittal.” that the trial complain judge the defendants
Although “the of proving burden alibi failed tell was clear defendant”, purport rests upon never out that In his he charge, pointed effect of his charge. all the elements burden of essential proving had the the State doubt, and when he was crime reasonable beyond referred to the subject alibi discussing specifically had the burden of the de establishing the State fact it other essential facts beyond did fendant’s presence in the Surely any inartistry language doubt. used reasonable have misled the We jury. trial could not are judge by the subject alibi, on charge satisfied that entirely trial, sufficient objected legally was not at which no harm from suffered the trial judge’s defendants that the now it the manner outlined them by expand failure Garvin, J., 44 N. supra, v. at brief. See State pp. in their Peetros, 45 N. J. 544-545 272-275; v. (1965). Dennis, its direct examination the State During order of Juvenile Court he had out that been brought offenses. If he had been an juvenile for certain committed conviction could course have his record of been adult, attack his on cross-examination to credibility. introduced It could also have been 2A:81-12. introduced on N. J. S. 34 N. Holley, State. State J. examination direct
179 7 L. Ed. 89, 82 854, Ct. 13, denied, certiorari 368 U. S. S. 9, Fox, 132, N. J. 139 (App. v. 12 Super. 2d 51 State (1961); adjudica Div. is that But the clear 1951). legislative policy as criminal not be viewed tion of offenses should juvenile as evidence” and should “not be admissible convictions N. J. S. other court juvenile proceedings. against any De Paola, 2A:4-39; J. 1, (1950); State v. 5 N. States, Wolak, 26 N. J. 464 Thomas v. United see (1958); D. Brown App. 167, 905, C. 121 F. 2d 907-908 (1941); States, 543,
v. United 338 F. 2d U. S. App. McCormick, 91, n. 16. (1964); supra, p. § though In which consider applicable view of this we policy, a defendant witness, here, as rather than juvenile is States, in De Thomas v. as Paola and Wolak United (see States, might Brown v. the State supra; United supra), Dennis’ well have withheld its evidence with respect a con action in juvenile adjudications taking its although harmful defend trary course was rather than helpful ants. their cross-examination of Dennis and their During summations, for the bore not heavily, counsel defendants offenses, on Dennis’ but also on only juvenile discrep ancies contradictions and statements. testimony In his the trial referred to evidence that charge, judge crime, Laws and certain witnesses had been convicted of out that this evidence was received pointed solely for the v. Haw- purpose affecting credibility. See State thorne, N. J. 130 He cited (1967). juvenile offenses of Dennis and noted that under the law “such offenses are juvenile and no designated transgressions person under of 18 shall be deemed a criminal age years reason any adjudication to such offenses nor relating shall such an be deemed conviction of a adjudication crime.” He then that “evidence such charged transgressions are not to be considered to affect his by you credibility as a witness in this case.” this last remark By the trial judge presumably more intended no than refer to the legislative policy mentioned J. (N. hereinbefore S. 2A:4-39). *18 that this last remark with
The defendants contend in testi and contradictions Dennis’ drew the discrepancies and had the practical consideration mony jury’s the his testi of into that jury concluding effect the misleading that We are satisfied trustworthy.” was mony “absolutely in effect. Elsewhere it could not and did not have such any jury of the his the trial told the members charge, judge and were to de that were the of the facts they judges sole witnesses; in determining termine the of the that credibility into consid whether witness was credible could take they manner in which eration, interest, his his the appearance, and testified, and matters of reasonableness logic, proba willfully and that if believed that a witness testi bility; they they fied as to material fact could such falsely any give to other as it was en testimony they thought weight or referred titled to it The trial disregard altogether. judge “false in one false in all” as a per phrase thing, comment if missible inference and concluded with the “reasonably the evidence was of two construc susceptible tions, one of of of the one the innocence the ac guilt cused, the latter should be It is clear from the adopted.” that, whole record in the verity crucial accepting on testimony, of Dennis’ rested portions weighty than corroboration rather on notion of independent any Dennis’ worth and probity. We are convinced that general trial juvenile Dennis’ trans judge’s charge bearing did not prejudicial constitute error. gressions Point 12 asserts that “the trial judge committed error by reversible permitting prosecutor establish unnecessarily of Laws’ improperly illegitimacy son.” Ennis, witness, Lieutenant testifying State’s said that Laws-told him that her son 17 years Mrs. was old and that had been married in 1965. January she When Mrs. Laws defense, for the she testifying was was asked on cross- examination whether her name was Carolyn or Wynn Carolyn that was replied Laws. She it Carolyn Laws but stated that her were still apartment telephone listed her maiden of testimony name This latter admis- Carolyn Wynn. since material evidence in record with sible there was and to listed in the respect calls from name telephone In the of all of the Carolyn Wynn. we light foregoing fail find in the of error significance point anything defendants; urged by may event it be said any safely it no played jury’s part findings guilt. In Points, their 13th and 14th the defendants con tend extent the intervention the trial judge *19 and trial, the them prosecutor during of fair deprived The trial trial. has the and judge power oftentimes the duty in to intervene the of His responsi witnesses. questioning is to bility see that the trial is a fair and one it is in conducted and manner. See State orderly expeditious Guido, 40 191, v. N. J. 207 v. 43 N. J. (1963); Ray, State 19, 26 15 (1964). Canon of the Canons of Judicial Ethics forth that sets the trial judge may intervene to ex promote prevent pedition, unnecessary waste of time and clear up obscurities but that he should bear in mind that ‘diis undue interference, or impatience in the participation examination witnesses, or a severe attitude on his towards wit part nesses”, tend to may the prevent proper presentation the or cause the ascertainment of the truth in respect thereto. us with doubt that the
The record leaves little trial have been with readily could conducted much properly trial with intervention the much less by judge less objection and intervention the by prosecutor defense it cannot be said that the counsel. Nonetheless defendants in a fair trial. any were sense denied Counsel for each was afforded in the great leeway defendant admission of summation, and in and the trial judge’s evidence charge forth all of set to which the protective principles de were We are fendants entitled. satisfied that such wastage as resulted from the in unnecessary intrusions the taking did not the trial testimony impair fairness of or the of the verdicts. justness Points, de 15th,
In 16th and 30th their attack of the indictments returned fendants the legality were not below until them. attacks made The against R. late (R. on which That was too began. the trial very day event, the attacks lacked merit. in (3)), and, any :5-5(b) Bergen The defendants were indicted murder for the second stated session Grand County Jury discharged That Grand was Jury Term. September 3, 1965 the murder indictments were May but apparently clerk until 1965. There county May not filed in record to nothing suggest is indictments court before the Jury were not returned Grand open Rhodes, 11 N. v. J. (State (1953)), discharged the indictments with the delay and the filing county validity. had no on their clerk bearing the min moved below for examination of defendants but their were denied. The Jury utes Grand motions and, no stated that minutes had been taken prosecutor event, the defendants no valid reason for any presented ex Jury secrecy the Grand departing requirements Farmer, in R. R. 45 N. J. 3:3-7. pressed Cf. Tate, 47 N. J. 352 State v. (1965); (1966). Although rules in criminal cases were restudied discovery being *20 court, the were no to rely this defendants position Green, v. 49 N. J. 244 revision. See State prospective v. 49 N. J. State (1967); Yough, (1967). Apparently the defendants to determine whether the in seeking were dictments were on the basis of the written state returned to ments the rather than on direct oral testi given police the if mony those who made statements. Even they so obtained, not, were the indictments would under prece reexamine, dents which we are not now called to be upon to v. 33 N. J. L. 49, vulnerable attack. See State Dayton, Garrison, Ct. v. L. State 130 N. J. (Sup. 1850); Ct. v. State 136 N. J. L. (Sup. 1943); Grundy, Ct. (Sup. 1947). the On trial counsel for day the the began, array made motions defendants “challenging was that “members Jury.” Grand Their stated ground Jury been on the Grand the defendants’ color have not the trial asked judge to When the numbers that be.” ought know did not were, they what those counsel said numbers to investigate.” would “have they they but thought many had had out that counsel pointed trial then judge to at liberty were not they to and that investigate months materials, for and without belatedly supporting move so in which Grand the manner investigation general noting After chosen. Juries in were County being Bergen mem Juries had colored Grand many Bergen County array. Under bers, challenge the trial denied judge have dis- circumstances, grossly other course would any of justice. administration orderly served Points, 18th the defendants In their 17th to advise them failure about complain prosecutor’s would of certain witnesses testimony advance trial that the made The defendants from their earlier statements. depart which were not ruled upon before trial discovery motions his files to said that he would open when the prosecutor very obtained With this defendants them. cooperation, of the statements made discovery including copies broad Hunt, witnesses. the State’s prospective Cf. trial, N. were J. 514 At the State’s witnesses (1958). trial extensively, testimony and where their cross-examined statements, defense ap from their earlier counsel varied variances Pretrial jury. before the stressed propriately often do not coincide fully statements witnesses and defense counsel were undoubtedly trial testimony their no or prejudice We see here any ground aware this. reversal.
In 19th the defendants Point, complain their about they refusal accept stipulation which prosecutor’s They at the of the trial. offered beginning stipu tendered facts as to the robbery all of the killing; except late *21 the identity of the offenders. The State this rejected offer and was within The defendants not its so. do rights doing for suggest any position there is their but authority of a urge new rule the State adoption compelling criminal prosecutions stipulate to “those facts which the do to for, accused not We decline do dispute.” so subject to trial control of overriding judge’s proceedings, the State should have make a full right to showing be- fore the whenever it considers such course jury necessary for its proper presentation case.
Points 21 and 22 of the defendants’ brief embody attacks jury selection of petit which heard the The case. is that primary complaint jurors who prospective said that were they conscientiously to opposed capital pun were for our ishment excused cause. But law expressly pro vides for capital punishment to entitled who would jury composed persons feel free to return Rios, it. verdicts See State N. calling J. (1955) where this Court noted “since the crime of which the defendants were accused carried the death penalty, trial court could ascertain whether properly prospective jurors unable, were because of their render scruples, verdict punishment. The requiring capital State is entitled which is prejudiced not its against established laws J., 17 N. statutory enactments.” at 590-591. pp. also defendants about the complain of Mr. seating Barrett who was 1. juror dire, No. the voir During counsel for the defendant stated that Washington he would probably have his client he testify and referred to the fact had on two prior occasions pleaded guilty New York to charges robbery. Counsel for Washington whether these convictions inquired prior would have any and Mr. influence Barrett that he replied thought “there would be some influence” although try would best of his ability disregard convictions. The trial then instructed Mr. Barrett if judge that Washington testi- fied, prior convictions would be admissible “merely for
185 the credibility” his and the in- purpose affecting judge whether Mr. Barrett would take the “as instruction quired the law in this ease.” Mr. Barrett applicable replied that he would. Later he he would repeated disregard prior convictions to the best of his and would ability follow the court’s instructions.
In Mr. response inquiries, Barrett stated that he with the law that an agreed concept accused stands innocent until proven beyond reasonable doubt guilty any an and that believed he could sit as impartial juror and A properly discharge responsibilities as such. reading voir his entire dire leaves one with the firm view that selected; he was well and was qualified properly any event the trial did not exceed judge his broad discretion in Mr. discharge Barrett cause. declining See State Grillo, N. J. 103, It (1954). be may noted that nor Laws’ Washington’s neither counsel chose discharge him both peremptorily counsel had though unused peremp Wharton, after the was selected. See 5 tory challenges (Anderson Criminal Law Procedure ed. 1957) § 136. p.
The defendants’ penultimate Point asserts that (23) there awas prejudicial variance between allegations conspiracy indictment and the State’s proof and summation. The indictment charged that on 18, 1965, April there was a conspiracy at Laws’ apartment to rob the Oradell terminal. Dennis testified as to the events on 18th April but he also testified as to a shortly meeting prior to the 18th at which he and time his brother were in Laws’ apartment. Dennis said that that occasion his brother left the room and con- ferred privately Laws. In his summation the prosecutor that Dennis’ urged brother had “fingered job” during this earlier No meeting. objection was made during trial to the admission of the evidence of the earlier meeting or prosecutor’s summation; in any event we find no error. specified
The fact that the
indictment
conspiracy
from
introducing
18th
not
the State
April
did
preclude
date was not
of the earlier
meeting.
specified
evidence
the con
and evidence that
conspiracy
essence
con
an
date and then
started at
earlier
may have
spiracy
depart
did not prejudicially
tinued on the
date
specified
Friedman,
State v.
indictment. See
charge
L.
136 N. J.
affirmed,
1947),
N. J. L.
Ct.
(Sup.
*23
States, 20 F. 2d
v. United
634
& A.
Pearlman
1948);
(E.
549, 48 Ct.
denied, 275 U.
S.
113, 114, (9
certiorari
Cir.),
S.
that
85,
argument
The defendants’ the trial court’s violated the charge principles that urges White, v. 27 N. 158 this Court J. enunciated State 42 N. J. 67 Maxey, 62, State v. (1958). (1964); See also Morse, Hudson, N. 374 v. 364, (1962); People 38 J. 201, 214, 33, 60 2d 388 P. 2d 46 Rptr. Cal. 36 Cal. State, 1963). Burnette v. 2d (Fla. So. (1964); that has no concern with jury White out parole pointed concerned, so far as is a life sentence means con and, it for White forth the carefully finement life. set following to be in a given model instruction murder case where the to a life termer’s of jury as chances release: inquires eligible “Any prisoner serving a of is for considera- sentence life years parole having sen- on of his tion for release after served good tence, and time time for behavior credits less commutation diligent assign- application allowed of to work earned and reason provides prisoner no be released on The statute that shall ments. performance merely good parole or as a reward for conduct efficient him, only assigned if Parole is of to but the State Board of duties probability that, prisoner opinion if there reasonable such that is released, place proper rightful society, lie and is will assume liis law, incompatible without violation of the that his is not release society. prisoner parole with the of A welfare released on remains parole for of the balance and if life he violates the terms parole may prison returned be to to serve the life sentence. your question, you subject I have answered but instruct parole possible your must be excluded deliberations. Xou .speculate may parole not as whether would or would not be granted. you concerned, So far are a life sentence is sen- life upon you If tence. and after of all consideration the evidence believe imprisonment part recommendation for life should be made your verdict, your duty it would be a violation of to refuse to make authority recommendation because of the existence in another power responsibility respect parole.” J., N. p. at 179.
In. the after jury, case at hand the over deliberating hours, three returned to the court room with the following “Can a render a verdict of question: jury imprisonment life without of parole and make it possibility may It binding.” be fairly inferred was then satisfied beyond reasonable doubt that the defendants Laws were of murder in first guilty degree and consider ing life recommending imprisonment as it had the un doubted See right do. J. 2A :113-4. At N. S. that point *24 the trial judge should have an given instruction White; to set forth comparable all instead he said response jury’s was: “The answer inquiry is no.” Two hours later the jury returned its first verdicts of degree without guilt recommendation and the defendants were sentenced to consequently death. N. J. 2A :113-4. S. There error and the plain death may sentences not be per White, J., mitted to stand. v. State supra, 27 N. at 170- pp. 179.
Thus the of error prejudicial single point appearing of extensive trial examination record thorough relates and not to the of That guilt. sentence issue so being immediately itself as to whether presents question administration of would not now be justice best served by of murder modification convictions and imposition of life rather than reversal and imprisonment, lengthy
188
retrial.
R. R.
R.
1:5-1;
1:9-1;
Garton,
R.
See
State v.
Burns,
102 N.
318,
J. L.
321
& A.
v.
(E.
State
136
1926);
J.N.
L.
603
& A.
601,
(E.
neither the
1948). Although
State’s
nor
dealt
brief
the defendants’ brief
with the
it was
oral argument.
State,
raised at
which
question,
could
waived the death
admittedly
penalty
have
before or
at trial
Waiver
Death
45
J.
Penalty,
Re
N.
501
(In
took the
the murder
position
convictions
(1965)),
should not now be reversed but should be
so that
modified
Laws
would
convicted
the defendants
stand
with sentence of
murder
the first
life
degree
imprison
however,
this
defendants,
ment. The
took
position
and that
modify
Court lacked the
to so
power
consequently
Ramirez,
But see State v.
there must be
retrial.
complete
Ark.
State,
Davis v.
155
623,
(1921);
34 Idaho
The issue respect power modify carries with it important in connotations the administration of the criminal law. It should briefed and be argued fully. Since done, this has not been we have decided call for reargument will, the cause which however, be confined to that issue. single The Clerk will advise the as to parties when their briefs are to be filed and as to date of re- argument; General will Attorney be invited to file a brief and amicus argue curiae.
So ordered. J. Francis, I concur the result (concurring). reached the Court. In view of the as well importance as the unusual character of the which upon question reargument is I feel sought, the need for some additional comments.
The majority opinion expresses the view that when the arose question oral during argument as to appeal our authority to death change the sentence fixed by the jury imprisonment, to life the State “took the position the murder convictions should now not be reversed but should be modified so the defendants Laws and Wash- would ington stand convicted murder in the first degree with sentence of life As the imprisonment.” opinion says, the matter was not discussed in brief, either arose only oral during Since argument. fashion, it arose I do not believe that assistant special com- prosecutor’s ments should be regarded as solemn stipulation given after full deliberation and thorough consultation with the prosecutor. Eor reason, this and because of the novelty of involved, issue if the above does quotation represent prosecutor’s view, it seems to me that we to have ought written statement from him in his brief, or in forthcoming any form in it, which he cares to submit to the effect that if the trial court erred answering the inquiry about and that is parole only prejudicial error in the case, he is satisfied to waive the death penalty imposed by *26 vacate that sentence and to have this Court jury
the in the it a imprisonment, substitute for sentence of life the to do so. authority event the Court decides it has should be noted that the For it purposes perspective statute, says: N. 2A:113-4 J. S. controlling * * * degree shall “Every person in first of murder the convicted thereof, by verdict, part jury and as a its suffer death unless the shall evidence, life upon recommend of all the consideration the after greater he punishment shall imprisonment, no in case this and which imposed.” (emphasis added) by Legis- the language employed Because of the unusual the view in any lature, indicating to me (without it seems the to given be consideration should special matter) problems: following ordinary the the Court on Assuming appeal
(1) the sentence imposed has to review power criminal case the toor a it if deemed excessive trial and to by judge modify has is imposed illegal, a if the one sentence impose proper fix sentence authority committed Legislature in first jury or alone at death life imprisonment the defendant finding murder cases its upon degree history degree? of murder the first See is guilty Sullivan, N. J. 241- N. J. in State v. 2A:113-4 S. (1964). to exercise its appoints jury the statute (2) Since of all the evi- and after the consideration direction “upon life can whether to recommend imprisonment, dence” as to trial of an error court solely this Court because innocence, or set guilt a matter unrelated the issue the heinous nature of the jury’s judgment aside the a impose warrants the death sentence penalty murder imprisonment? of life of the statutory In such situation view
(3) language sentence and not the Court vacate death remand should on the matter of punish- matter for retrial alone? ment If error on a
(4) prejudicial trial was committed matter unrelated to defendant’s or innocence of the guilt murder, would not this on appeal Court to treat it as required reversible error for a new trial unless calling Court, from the overrules apart error, the exercise of the jury’s *27 as to discretion and then all punishment considers the evi- in case, dence “and upon after consideration” of it, discretion, all in its decides that contrary that of the jury, the should he life punishment rather imprisonment death? than If
(5)
4 is answered in
affirmative,
question
does it
follow that
of N. J.
2A:113-4,
regardless
S.
this Court
may exercise its discretion
independently
jury
all cases where
decides upon the death
after
penalty
consideration of all
the evidence, and change the death
sentence to life
if in
imprisonment,
its discretion the death
is
under
too severe
penalty
circumstances?
Com
Cf.
Smith,
monwealth v.
(b) doctrine of J.N. and kindred (1959) eases make this course ad- visable? See United States v. 358 F. 2d Curry, 904 (2d Cir. Va. L. 1966); Note, 52 Rev. 359 (1966); The Two Trial System Cases, 39 Capital N. Y. U. L. Rev. 50 Model Penal Code (1964); 210.6 (Proposed Official § Draft, 1962).
Haneman, J., joins this opinion. concurring For reargument Justice Weinteaub and Justices —Chief Jacobs, Ebancis, Peoctoe, Hall, Sohettino and Hane- man. —7.
Opposed—None.