*1 affirmed the trial court’s regarding below is The judgment Counsel fees are alimony. plaintiff’s refusal to reinstate with this opinion, and allowed accordance amended support for a determination of proper matter is remanded children. for the
For and remandment —Chief Justice Wein- modification and Justices Proctor, Hall, Erancis, Sohettino traub and Haneman —-6.
Opposed—Hone. PLAINTIFF-RESPONDENT, JERSEY, OF NEW STATE ROYSTER, DEFENDANT-APPELLANT. JOHN WALTER February Argued 1971. December 1970 —Decided *5 Sinins, Mrs. T. Defender, Susan Assistant Public Deputy Ness, C. Van appellant (Mr. Stanley cause argued Defender, attorney). Public Rosen,
Mr. Edward R. Prosecutor, Assistant County argued Vincent P. cause for Mon respondent (Mr. Keufer, Katz, Prosecutor, Elliot L. attorney; mouth Mr. County Prosecutor, on County Assistant the brief). of the Court was opinion delivered J. The defendant was convicted of murder
Jacobs, first and was sentenced death. He this degree appealed to B. 2:2-1 (a) (3). Court as right. owned and Eapolla operated
Mrs. Carmella store grocery lived, Main in Matawan. with Street She her twelve-year- *6 old Marie and her son seven-year-old Joseph, daughter Her son Daniel lived the rear and above the store. other from home at On the afternoon of awny college. January 10, 1968 Marie and returned home from school. Joseph They Marie their mother and went into the living quarters. saw where went into the bathroom above the store she began chang- and was tele- up. Joseph watching her clothes ing washing a him he heard noise that sounded to like three vision when his firecrackers. He went into the store where he found big mother on the floor with blood from her lying coming ran mouth. She had been shot five times. to his Joseph who, turn, downstairs, mother, ran saw her sister Marie On her a way man, and ran outside for out she saw help. name, by knew but not at by sight whom she the store’s later identified that man as defendant. cash She register. man. she was out of the store she another running passed As man that she did not look that and could not She testified Herman him. Gatson testified that identify However, during he went January Rapolla’s the afternoon store for the defendant around with the “messing saw cash cigarettes, store,” was told the defendant to out by “get register,” a he left the store he was followed out little by girl and as was and almost knocked him running screaming who over. witnesses, in Marie many addition to presented Gatson, Herman who placed the defendant
Rapolla before and at shortly store Rapolla approximate of Mrs. In addition, there was shooting Rapolla. time of with to the from which testimony respect gun substantial killed Mrs. Rapolla shots which were fired. The gun the five .22 caliber pistol a semi-automatic was received of the State’s ease. It was owned a part in evidence Robert Thomas. He wanted to sell it and known as man him “I a think I have said to sale you.” the defendant he a gun the defendant few gave Thomas testified Mrs. was shot and that two after Rapolla days before days received the back from Ered Reid. Reid gun he shooting her
4-79 testified that he received the from the gun defendant during of Mrs. day following shooting Rapolla that he returned the to Thomas gun during Wallace evening. p.m. Armour testified that at about 1:30 of the day of the he met the defendant him shooting who asked whether he wanted to buy gun.
The defendant testified on his own behalf and denied all He knowledge gun. admitted with talking Armour denied that he had him but asked whether he buy wanted to He that Thomas gun. acknowledged and Reid were friends of his but their disputed testimony with respect the gun. He admitted that he was Rapolla store January but the time earlier than placed did the other He witnesses. *7 he testified that went into the Rapolla store to some buy and that while there he “started cigarettes with messing the cash He that he saw register.” acknowledged Herman G-atson him to the store.” get and “told out But he denied that he a had or that he had to do anything with gun the shooting of Mrs. Rapolla.
After the jury returned its verdict of of murder guilty in the first degree the a defendant moved for new trial assert alia, inter ing, that the verdict contrary was to the of weight the evidence. The trial denied this motion and before judge us the defendant asserts that this constituted reversible error. He contends that “the could jury have ex reasonably cluded the real very the possibility murder was perpe trated one or of by more the State’s witnesses” who were in the store “at the approximate time of the murder.” We find no basis for this contention. no Though witness actually testified that he saw the defendant shoot Mrs. Rapolla, there was more than enough testimony from which the could infer that the defendant properly shot Mrs. Rapolla could find beyond reasonable doubt that he was guilty of her murder the first trial degree. The court could not have concluded from fairly the testimony it, before nor may us, we from the record before that “the verdict was the mistake, result of or partiality, prejudice passion” within “a of justice R. R. 1:5-3 constituted manifest denial (a), or R. law” within 2:10-1. under the now of trial errors alleged We come to the various points him relief on contends entitle appeal. the defendant de- His the in-court identification the first attacks point witness, another State’s Rapolla by fendant Marie When Marie saw defendant at Marlene Longette. a him as customer. She had seen cash she register recognized him. waited on Indeed the him on occasions had many Marie testimony acknowledged defendant his own a in her store about dozen times. had waited on him mother’s showed police after the couple days shooting, Within which contained hundreds of photographs her books gallery About three after the shoot- days but none of the defendant. and as soon was shown the defendant photograph she ing it Thereafter the de- guy.” as she saw she said “that’s under At made was arrest. Marie placed fendant man saw a firm of the defendant as the she identification register. at the cash neither unfair nor procedure
The identification was defendant, knew though Marie impermissibly suggestive. address, was name or and the sensible course police not his however, which happened, her books gallery taken showing include defendant. When any photograph not to were, to her there accord shown photograph additional no comments accompanying ing testimony, suggestive *8 and spontaneous. and Marie’s identification was immediate that Marie’s out-of-court correctly The court concluded trial and her correctly was improper permitted identification identification; indeed, the record before us dictates in-court in-court identification was independent that her finding and was therefore her out-of-court identification prior State, 692, v. 7 Md. See Joyner App. admissible. any event Mustacchio, v. N. J. 454 57 257 A. 2d 444, (1969); cf. 265 (1970). that testified afternoon Longette during
Marlene her Rapolla’s 10 went to Mrs. store and saw she January
481
n waiting
on a man whom she identified
Siciliano,
as Mr.
during
State’s witness
trial. Marlene further
testified
whom
that
three
could not
persons,
she
identify, came into
that,
the store
as she
around,
and
turned
she saw a fourth
her whom
behind
she identified at
person
the trial
as
de
fendant.
on
acknowledged
She
that
19
January
the police
had
three
shown her
photographs
one of the de
including
she then
fendant whom
identified as the fourth
She
person.
at that
time had some
difficulty making
identification
because,
testified,
as she
the defendant’s photograph depicted
him at an
age
earlier
without his mustache and
and
goatee
clothing.
different
But at
she unequivocally
identified the defendant and testified that her
in-court
identification was based on her view of the defendant in the
court,
store on
10. The trial
January
totality
considering
Denno,
v.
(Stovall
302,
of the circumstances
388
293,
87 Ct.
18 L. Ed.
1206
1967,
1199,
2d
v.
(1967); Simmons
States,
377, 383,
United
390 U. S.
482 this at trial hut now seeks to assert did raise issue not R. R. 4:63-2; 1:5-l; error. B. B. as B. plain it appeal B. Wade was in which 5; 2:10-2. case a defendant 1:7— indicted and had counsel was placed lineup who had been counsel, without notice to any his purposes identification to be to pre-indictment Whether it is cases need applied Mustacchio, v. J. here. See State 57 N. supra, be decided it Marie’s Surely application 269-270. has no out-of-court there was occurred before arrest or any identification And while Marlene’s out-of-court identification custody. was in custody, after the defendant there was then occurred or and the lineup wholly no indictment identification was has not held Supreme Court as photographic. yet Wade to such applies photographic whether identifications not uniform. v. Compare and the decisions are People Stuller, 582, 89 158, 10 Cal. 3d Cal. App. Rptr. 168 (1970), Hawkins, v. Cal. App. 117, 7 3d 86 Cal. People 121-122, State, 430 v. 9 Md. 428, Dorsey 80, 262 Rptr. (1097), App. State, v. 591, A. 2d 595 Cook 8 Md. 243, 259 (1970), App. State, 2 A. 329 n. and Barnes v. 326, 2d 5 Md. (1969) App. State, A. 630 with 144, 626, (1968) Thompson 245 2d v. denied, 893, P. 706-707 cert. 396 (Nev.), 451 2d 704, State, 24 170 189, L. Ed. 2d and Cox v. (1969) 90 S. Ct. 765 762, So. See United (Fla. App. 1969). 219 2d States Zeiler, F. 1305, 1307 Cir. 1970); 2d Common (3 denied, 205, Pa. 266 A. Whiting, 738, wealth v. 2d cert. Ct. L. Ed. 400 U. 2d 159 (1970). we need not here in view our However, pursue subject Marlene’s in-eourt identification was earlier conclusion of her identification and independent photographic was, event, nonprejudicial. point The second in the defendant’s brief asserts that comments, “the prosecutor’s testimony relat publicity financial circumstances him deprived defendant’s ing law.” no We find merit in this process point. due Local articles referred the defendant an unem newspaper laborer noted that he was represented by ployed *10 Public of the Defender. Because moved dur this defendant of a mistrial, the selection the ing jury State v. citing Mathis, 47 N. J. 471-472 where Court con (1966) this demned the of as projection evidence of criminal poverty The trial predisposition. motion, court denied properly the out that the pointing could be weeded suggested prejudice voir out dire. the through jurors were in prospective as to on their terrogated freely of the reading part news and we paper articles are satisfied entirely that the as selected was not in carefully influenced anywise them. by his to During original opening the counsel for jury, the stated defendant that the defendant went into the Rapolla January store on 10 to buy cigarettes. a wit Fealy, State, ness for the testified shortly that before the shooting on 10 he saw in a January the defendant near tavern Ra and that at polla’s store time the defendant borrowed thirty-five from him some cents to buy feet. The State pigs offered this to testimony negate the tending truth story, set forth in defendant’s in opening and later his own that he went to a testimony, Rapolla’s make purchase of The trial cigarettes. considered that judge the probative testimony nature of the outweighed any suggestion Evidence Rule and ruled prejudice (cf. 4) it was ad missible; so doing he did exceed the proper bounds necessarily his discretion is recognized as broad one these evidential matters.
Wilkins, a witness for the on re State, testified he, buttal Butts and Miller went Rapolla that when into the also came in and that left store, they the defendant when was outside the store. In standing the defendant the course he stated that the defendant him that of his told testimony some off some Fo ob money pay he had “to tickets.” get to this and its was made admission did not jection testimony error. the State’s summation the During constitute plain the attack defense meeting by counsel prosecutor, State’s witnesses including Fealy, pointed credibility had in contrast jobs two the defendant out that Fealy all of testimony Considering who no regular job. had verdict jury’s inconceivable that record, it is in summa- incidental comment this by affected prejudicially tion. due that he was denied contends
The defendant from precluded present was improperly in that “he process a ruling by reference to This has defense.” complete ing of testimony with a proffer in connection trial court Mr. Walker a witness for the defense. Walker as Mr. George January evening that during would have testified who Mrs. Rapolla he telephoned the shooting, before day *11 come to the tone, not to hysterical in a somewhat him, told certain used occasionally which is the store side door of testimony that this trial considered judge The customers. harm the actually it might relevant and not be would had caused construe that he the jury “might since defendant or the before the difficulty day or some disturbance some re if was thin and any, Its evidential value, before.” night in his discretion ex did not exceed judge and the trial mote 4; 49 N. J. v. Vojacek, Evidence Rule State it. cluding Cf. Realistically, Div. the testi 429, 1958). 435 (App. Super. outcome on the ultimate not have had effect could mony case. of the conviction, final to defendant’s his point relating sentence, “the from death asserts that aggregation the
apart con the reversal of the defendant’s of errors demands legal Orecchio, 16 N. J. 129 Here 125, v. (1954). viction.” State various for his concerted rulings has gathered the defendant in either or the but, singly aggregate, they attack viewed the or legality justness jury’s finding nowise impair about the of complains testimony The defendant of guilt. Davis. was in the store sev Rapolla witness He the State’s a the overheard conversation shooting weeks before eral Rapolla. the defendant Mrs. According between said the defendant he wanted of testimony, pint Davis’ “I liverwurst on credit but she can’t let replied, wine and none”; said, defendant next time— the then “The have you
485
There was
You
have
me have it next time.”
to let
going
but
given
no
the time it was
objection
testimony
to the
plain
now
admission
the defendant
that its
constituted
urges
and felony
We do not so view it. Both premeditated
error.
al., 52 N. J.
v.
et
Mayberry,
murder were
the ease (State
denied,
89
1043,
393
S.
413, 431-433
cert.
(1968),
673,
Ct.
The defendant is critical of the police investiga and contends that there was tion “rush to re judgment” in his conviction. He was sulting precluded from showing failed to police that give polygraph (lie tests detector) who to State’s witnesses were in the store day on the The results tests killing. are still polygraph judicially as unreliable and viewed therefore in inadmissible evidence. Driver, State v. 38 N. J. 261 See 255, (1962); Cary, c., J. 343, N. 351 s. 56 N. J. 16 (1967), 49 State v. (1970); 486 denied, al., 2, 7, N. J. 15 n. cert. sub nom. et 52
Kavanaugh, 254, Ct. 21 924, 89 Jersey, v. New 393 U. S. S. Matzner Notes, L. Rev. 4 but L. Ed. 2d 259 (1968); Suffolk cf. of police C. L. Rev. 805 While (1968). (1969); their failure to do aids investigatory use them as may ficials in the trial’s search for bearing has no evidential so generally omission confuse may Evidence as to their and justice. truth here its exclusion was not the jury; the issues mislead erroneous. rebuttal wit about several complains
The defense in should have been testimony that their nesses, contending and that the names of direct case on the State’s troduced in to the defendant been furnished had not of them some testimony Their was discovery. prop of pretrial the course See State v. court as rebuttal. the trial by erly received denied, dis Balles, cert. appeal (1966), N. J. L. 2120, 18 Ed. 2d missed, 87 S. Ct. 388 U. S. defendant suffered that we are satisfied And (1967). in deficiency pretrial dis suggested harm from the no the defendant’s testi rebutted merely witnesses The covery. was in the store. Rapolla hour when he precise as to the mony established overwhelmingly record in the testimony Other the store at approximately about or the defendant shooting. the time testified, defense counsel Joseph Rapolla
Before to interview him. The unsuccessfully sought prosecutor had the inter family declined to Joseph’s permit states that concerned the of his testimony discovery Joseph’s view. sister; of his he did summoning condition mother’s store. Under the circumstances else anyone see nor defendant’s closing neither error The prejudice. we find errors relates to the alleged pros item his aggregation N. J. first referred to prosecutor ecutor’s summation. convicted every person A. 2A:113-4 provides shall death unless the the first suffer degree of murder “recommend life He imprisonment.” its verdict shall jury and told inquire then discussed
487
any circumstances”
ease has shown
man or this
whether “this
The de-
of life imprisonment.
a
recommendation
calling
“the burden
shifted
improperly
this
fendant contends
In
defendant.”
to this issue
regard
with
proof
they
unfair nor did
were not
remarks
context the prosecutor’s
of proof.
shift the burden
anywise
a full
by
was established
guilt
The defendant’s
with the
for interfering
and we find no reason
fair trial
defendant’s
come now to the
We
jury’s finding
guilt.
with
concerned,
finding
final
are
points
Thus he contends
but with the death sentence.
guilt,
Jersey’s
unconstitutionally permits
New
statute
without
standards
appropriate
decide between life
death
after
with both
unitary
dealing
guilt
punishment.
this
rejected by
contention
this
has been
regard
His
Forcella,
v.
cert.
263,
52 N. J.
287-290
(State
(1968),
Court
dismissed, 397
L. Ed.
252
999,
U.
90
Ct.
25
2d
959,
S.
(1970))
in the
although
Supreme
issue is still pending
awaited.
conten
Court and
determination
Other
may
its
be
tions
on the
bearing
constitutionality
are
raised
by
defendant but
also
they
may await Supreme
Wilson,
Court determination. See
v.
57 N. J. 39, 55
Sinclair,
State v.
(1970);
57 N.
56,
J.
70 (1970); State v.
Artis, 57 N. J.
37
24,
However,
(1970).
the record before
us does
clear
present
violation of the
set forth
principle
Illinois,
Supreme Court
391
Witherspoon
510,
U. S.
88 S. Ct.
1770,
L. Ed. 2d 776 (1968).
that de
Though
cision was handed down after the defendant’s conviction, it
was expressly made retrospective (391
523,
U. S. at
88 S.
Ct.
1777-1778,
488
Arbis,
39;
24;
v.
57 N. J.
v.
State
State
53
supra,
Conforti,
Mathis,
J.N.
N. J. 238
239
52
(1969);
(1968).
In
Court
aside
death sen
Witherspoon
Supreme
set
for cause
tence because
had been excused
prospective jurors
they
statement that
had conscientious
simply
scruples
their
In
course
or were
to
against
opposed
capital punishment.
may
that veniremen
his
Justice Stewart noted
opinion,
make it unmis
they
be excluded for cause where
properly
“that
vote
automatically
clear
would
takably
they
against
evi
regard
without
to
imposition
capital punishment
at
(391
dence that
be
the trial
case”
might
developed
1777,
In was defendant convicted of murder to death in sentenced accordance with the verdict. jury’s Later in a habeas corpus he raised Wither- proceeding record spoon issue. limited indicated that eleven venire men were excused for cause simply on the of their basis affirmative answer of whether question they a fixed had capital Court opinion against punishment. The expressed the view that the sentence of death could constitutionally stand under it did not Witherspoon, although decide finally it for a preferring remand question, complete more also See Maxwell v. Bishop, supra, record. U. Ct. 26 L. 221. In Ed. 2d his for the Court opinion reaffirmed out that pointed Justice Stewart Witherspoon that made it clear that a venireman case states “[u]nless that he would vote unambiguously automatically against the trial no matter what capital punishment imposition cannot be that is his reveal, it assumed simply might veniremen who were ex After to the referring position.” in Boulden of their statements from the because cluded did not he made capital punishment, believe they that a who entirely person comment: “Yet it is possible this in’ capital or does not ‘believe against’ has ‘a fixed opinion a juror able as nevertheless be might perfectly punishment —law *15 abide to follow by existing conscientiously to the im fairly of a trial and to consider instructions judge a 394 in case.” particular of the death sentence position Ed. 483-484, 1141-1142, Ct. at 22 L. 2d at U. S. at 438-439. Mathis, N. J. 238, this Court noted supra,
In State Witherspoon, to agreeable cause in terms that our cases define e., whether it arises the death penalty, i. “Mere opposition source, or other scruple any a conscientious from or religious it must ap Rather challenge. constitute cause does not a death unable to return is juror that the prospective pear facts of the case.” what be the may no matter sentence con understood this N. J. 244. In Mathis the trial court at each it by asking sought apply trolling principle capital scrupled against whether he was juror prospective answer, by an affirmative and, upon receiving punishment firm and fixed view was so whether the juror’s then asking in case. a death verdict unable to return he would be that were excused for unable who were so they The said jurors N. J. 247. cause. in Mathis be with the situa- may
The situation contrasted at hand where that tion the ease the record discloses did not understand and apply Witherspoon trial judge jurors but excused for cause prospective simply principle that were to the death opposed on their statement they juror At one he told “some point prospective that penalty. “we scruples” folks do have against capital punishment told, that.” All were twenty-five them for veniremen excuse excluded when indicated that had automatically they they moral not or or did believe religious scruples against capital instances will suffice. punishment. Several illustrative When was whether by venireman Van Note asked court he had or moral the death “any religious scruples against against capital punishment, as such” he “I’m replied more “You are excused.” In yes.” Without the court said “I Cole response replied similar venireman inquiry, don’t without was believe more penalty” what Clayton excused. The trial told venireman that judge he wanted to know have mind you anything your was “do When “I about received the capital punishment.” reply he don’t believe in he excused the venire- capital punishment” man. The asked venireman Milne whether he had judge or moral or “any scruples, objections any- religious feelings, that nature death thing penalty.” to the answer was Milne, “You “yes.” The then said do. Mr. judge Allright. we and you thank are excused.” you forth readily enough
Other illustrations
be set
but
might
has been said to disclose
unmistakably
Witherspoon
death
with and
sentence
complied
consequently
fixed
The remain
may
not be
to stand.
permitted
now
modify
is
this Court should
ing question whether
*16
to life
conviction
the death sentence
by reducing
defendant’s
Laws,
494,
J.
51 N.
in State v.
imprisonment
was done
denied,
491 (1968), potential problems a 494 and review of the which would question captioned on a of of arise retrial the above matter on the sentence, penalty, imposition this office will waive of provided selecting found that it is that error had been committed requirements set forth in in a manner which did fulfill the 510, Witherspoon Illinois, 1770, 2d L. Ed. 391 U. S. 88 S. Ct. 20 v. (1968) Mathis, 238, (1968). 776 and J. A. 2d 20 State v. 52 N. 245 Laws, supra, majority opinion it In accord in State is with the v. appeared unavailability felt who at the first that witnesses pointed extremely difficult and as was trial would make retrial testimony, attempt prior decision, any lieu out in that to read hearing witnesses, live would be unrealistic. Barber v. 390 Page, 719, U. 88 L. S. Ct. Ed. Cf. 2d 255 (1968). brings us within foregoing foursquare the holding Laws, State v. supra, J. 494 which we now follow and N. Note, See apply. "State v. Laws: Power to Re- Appellate duce Jury-Determined Sentences,” Death L. Rev. Rutgers In Laws (1969). the defendants were found guilty murder in the first and were sentenced death. On degree appeal, error was found solely their sentences and bearing we were called determine upon to whether should be a there reversal new with a trial on and or on punishment guilt alone, or a punishment with a modification reduction of the death to life here, sentences As imprisonment. the defendants a new sought trial on punishment both while guilt prosecutor, of our light that position separate penalty 511-514; would be N. J. at inappropriate (51 cf. Forcella, 289; N. J. 92 N. J. supra, J. L. col. 4 waived the death (1969)), the sen- urged tences be modified to life 51 N. J. at 496-497. imprisonment. In a full we held opinion should findings guilt stand and that the sentences of death should be reduced to life In view Laws imprisonment. recency of the opin- ion, no would purpose be served of the sup- restatement authorities materials detailed there its portive although does bear here: concluding paragraph specific repetition *17 general appellate modifying Judicial reluctance to the exercise power long- where is been sentence concerned has attributed to fortunately aspects English never abandoned of criminal law any counterparts basis in little had American criminal law. There is enlightened perpetuation reluctance, particularly an of this in delegates judicial with as ours. The State a modern structure such deliberately with Court drafted 1.947 vested this who the Constitution judicial fully equipped sweeping power to to the end that it would be keep justice Surely, soundly to are is if we see that administered. power may vision, found be faith match their and their the adjudged guilty wanting in of murder defendants here. The degree were They wholly fair trial had a sufficient evidence. the first on relating prejudicial guilt. There from error which was free brought may sentencing death have about error which imprisonment will of to life sentences but modification justice Right possibility error. of harm from that all now remove greater whereas new for no relief the defendants call they society bring might imposition well a clear seek would be justice. miscarriage gross all of the circumstances of Under about a including penalty, prosecutor’s we have no death waiver of the appellate power adequate hesitancy concluding is there in do, modify conviction, judgments now so that we each degree with in the first of murder convicted will stand defendants imprisonment. J.N. at 514-515. of life sentence conviction defendant John Walter Royster is affirmed insofar as it him adjudged guilty murder first but the sentence of death degree imposed him is upon reduced to life To that end imprisonment. the judgment below is hereby:
Modified.
Proctor, J. (concurring). with agree the result reached I on all majority points. However, I wish to make it clear that I am in the concurring reduction of the death sentence to life imprisonment only because of the prosecutor’s waiver of death penalty. See my concurring opinion Laws, 51 N. J. 494, 515 (1968). Justice Haneman joins this concurrence.
Francis, J. (dissenting). Mrs. Carmella owned Rapolla and operated a neighborhood store grocery Matawan, N. J. She was the widowed mother and sole of three support children. lived in the They rear above the store. Her *18 year twelve old and seven home daughter year old son were at her; her older was away with son at college. 10, 1968,
On the afternoon of defendant en- January the the and tered store killed Mrs. five bul- Rapolla by pumping course, lets into her In due body. the Monmouth County Prosecutor a murder indictment the de- obtained against and trial, fendant when the case went to in furtherance of his belief that his duty it, to the he public required sought penalty punishment the crime. After what the majority of this Court found to be a full and expressly fair trial of the issue of the found defendant guilt, jury of in guilty murder the first degree. had been told jury the trial court properly by
if found they murder, of first should turn guilt degree they to the of And problem punishment. the Legislature having with subject terms, dealt the were in- mandatory they structed in the of the statute that such killers language "shall suffer death the verdict, unless shall its and as jury thereof, a part and after the consideration all upon the evidence, recommend life in which imprisonment, case this and no be greater punishment shall imposed.” (Emphasis N. J. A. 2A:113-4. and after a added.) Upon considera- all evidence, tion of the jury of Monmouth citi- County zens found no circumstances the heinousness of the mitigating murder, concluded that death sentence required, declined to recommend life imprisonment. Accordingly, trial court performed duty the Legis- concerning lature had it no other left choice and a death imposed sentence on the defendant.
Now, for the second time in short period, majority this Court have themselves between the interposed and, in my view, thwarted Legislature their judgment their will the death sentence by reducing to life imprison- Laws, ment. See 51 N. J. 494 As I noted (1968). Laws, dissent in my our tripartite system government for a crime power prescribe (within con- stitutional resides limits) Legislature. That power is an incident of the State to maintain sovereign right social order and to take life or when deemed liberty necessary in the interest of that order.
To repeat part of the dissent: :113-A, “There can be no doubt that if the [N. statute J. A. 2A. supra] phrase death,’ punishment ended after the ‘shall suffer *19 mandatory. Legislature provision would be If the had not made for any penalty, judicial government other the branch of the would be by appeal bound the If mandate from such a death sentence appeared record, authority appellate error to in the the of the tribunal rectify the error would be limited to an a order for trial. new Ob viously imprisonment a life sentence could not be substituted for the penalty. Legislature, however, adopting death The the statute — present form, qualification single qualification did its — establish a a compelling penalty degree on its mandate for first mur jury upon der. It is that the murderer shall suffer death unless the and after a consideration of all the evidence shall recommend life im prisonment. my judgment, qualification grant In this does not to any judiciary greater authority qualification the than it had before the Legislature did, my was added. All the and in view all it intended to do, give jury authority was to the the to lower the death to — imprisonment judgment judgment, life if in its the not court’s either — appellate clemency trial or the evidence was such that should be appeal sentence, authority shown. On from a death the of the court qualification by remained the same as before the was added law the shown, guilt makers. If trial or of kind was error either on the case, penalty aspect prejudicial or innocence of the which was to right according law, the to a fair trial defendant’s there is not slightest Legislature empower indication the that the intended to the courts to a life sentence for substitute the death sentence which the * * *” mandatory. verdict made 51 N. J. at 51&-520. I consider vacation the of the death penalty in this ease and its modification life imprisonment a sen- (in reality, tence of 15 or an years invasion of the less) power granted our Constitution to the branch legislative of the government. of such a Assumption power constitutes of disregard the basic of doctrine separation and sets in an powers motion erosion of our democratic form of To government. Montes- quote “there if liberty is no quieu, judiciary be power not from the and executive. separated legislative Were it joined with the life and of the legislative, liberty subject would control; be for the exposed arbitrary would be judge then Were it legislator. joined to executive power, behave with violence and Mon- judge might oppression.” Laws, XXY, The c. in The tesquieu, Spirit 2, quoted of Federalist Edition #78, p. 1945). (Heritage The fundamental tenet judicial review is that only of the power wisdom or of the Legislature, policy legislation, is fit for subject consideration. we Judicially must tolerate what we as a personally may regard legislative mistake, 590, Harisiades v. Shaughnessy, 580, Ct. 512, 96 L. Ed. We need not (1952). agree with a legislative order to judgment obey legislative command. Judicial is never exercised for the power purpose to the will giving always effect of the for the judge; pur pose effect to the will of the or in giving Legislature; other words, will law. Osborn v. Bank United States, 9 738, 866, Wheat. 6 L. Ed. 234 (1824). in N. Legislature spoke clearly J. A. 2A :113-4 as to the punishment first degree murder. Whether or not we like the death penalty mandate laid down there, we do *20 our an system injustice by frustrating the will. legislative If the death no longer represents the will, public who are legislators, responsible to polls the people, are entrusted the Constitution with the decision to it.1 change Reexamination of the majority opinion in State v. Laws has view strengthened my that the action of the majority changing sentence in this case to life imprison- ment is a usurpation legislative Nor power. do I find any for such support change if suggestion that we are the faith and keep to match the vision of the delegates Constitutional Convention, power should be found. Such generalization finds no specific support minutes of the Convention. It seems obvious to me that no vision, such as has been made an actuality here, was ever on horizon. the Convention If it had I been, have little doubt Message 1See First Annual of Governor T. William Cahill to the Legislature, January 12, 1971 at 59-60. murder would degree for first punishment control of the remains, in the hands of the it left where still have been Legislature.2 majority opinion in that portion
I concur trans jury selection of the manner of finds that Illinois, v. in Witherspoon announced rule gressed Ed. Since (1968). Ct. 20 L. 2d alone, for the matter of punishment to the related that error Laws, v. I supra, in State in the dissent expressed reasons to stand relating guilt of the verdict allow the part would aby for a retrial trial court remand and would alone. punishment the issue of in result. concurring and Haneman Proctor Justices Chief Wein- Justice For affirmance modification— tratjb Jacobs, Proctor, Hall, Schettiro Justices . Haneman —6 Erancis —-1. and remandment —Justice
For affirmance Witherspoon Illinois, majority opinion 12 to the 2Footnote *21 (1968) 510, 519, L. Ed. 2d 88 S. Ct. points the Illinois statute the time of defendant’s that at out upon judge. binding- jury’s In verdict made the death empowered Legislature the statute amendment reject verdict. court