On appeal from the Camden County Court, Criminal Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Burling and Ackerson. For reversal -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Oliphant, J. Wachenfeld, J. (Dissenting.) Mr. Justice Heher authorizes me to say that he concurs in this dissent.
Defendant was convicted in the Camden County Court of murder in the first degree, without recommendation of imprisonment for life, and sentenced to death. This is defendant's second conviction and death sentence for the same crime, the judgment of conviction in the first trial having been reversed for trial errors.
The cause is before us by virtue of article 6, section 5, paragraph 1 (c) of the Constitution and Rule 1:2-1(c) of this court.
A detailed resume of the facts will serve no useful purpose. It will suffice to say that the nude body of the victim, Margaret McDade, was found in a cistern connected with the sanitary sewerage pumping station in the Borough of Haddon Heights on August 19, 1945. There were numerous lacerations on the face, legs, limbs and lower extremities. A cut on her lip was over one inch long, there were scratch marks on the entire left side of the body and several scratch marks on the inner aspect of the right thigh just below the private parts, parallel to each other, which, it was testified, had the appearance of finger nail scratches. The autopsy revealed contusions, lacerations and tearings of the private parts, tears with hemorrhage in the hymen and loose center teeth.
The defendant immediately after his arrest, upon interrogation, readily admitted he had been with decedent in the vicinity of the pumping station and after endeavoring to have intercourse with her, which he claimed she consented to, she screamed whereupon he hit her in the mouth. She went limp, he felt her pulse, found there was none, then to hide all evidence of the crime stripped her, carried her body to the cistern and threw her in.
The medical examiner concluded that death was due to suffocation together with the shock produced by the contusions and lacerations of the body. He gave as his opinion that violent force had been used either in the act of intercourse or attempted intercourse.
The jury from the evidence adduced could have found the deceased met her death on August 15, 1945, at the hands of
the defendant in attempting to rape her, and upon her resisting striking her in the face after which she lost consciousness and that he then threw her into the cistern.
We will deal with the points raised by the defendant in the order in which they are set forth in the brief and were presented on the oral argument.
Unfortunate, inexcusable and irregular incidents amounting to bad procedural practice occurred during the course of the trial of the case. Neither the Judge, the Prosecutor of the Pleas or counsel for the defendant should have allowed these situations to have arisen. They are made the basis of the first ground alleged as error for which it is claimed the judgment should be reversed.
The defendant urges his constitutional rights were violated by the action of the trial judge in having privy communication with the jury not in the presence of the defendant, as well as hearing arguments on motions directed to the admissibility of evidence, and in some instances on proffers of proof, in his chambers and out of the presence of the defendant.
The jury had been charged and retired. After about an hour the judge, in chambers, advised the prosecutor and counsel for the defendant, who was not present, that he had been requested by the jury to write on a piece of paper the five possible verdicts, one of which, in the charge, they were instructed they could return. This request had been conveyed to the judge by a court constable. The court advised counsel he had consulted with the reporter and had him read back from the stenographic notes what those possible verdicts were and he then wrote them down on a piece of paper. The paper contained the five possible verdicts which were verbatim as contained in the charge and merely repetitious thereof. He then asked of counsel "Do you have any objection to the jury having this paper for their use?" Defendant's counsel replied he had no objection and said "I am willing for them to have that piece of paper." The record does not disclose what thereafter happened but there appears to be no doubt the constable transmitted the paper writing to the jury.
While the communication of the judge with the jury was improper we are convinced, under the facts exhibited, it does not amount to reversible error. As said the written communication repeated, verbatim, what had been charged in open court with the defendant present. It added nothing to nor emphasized anything contained in the charge. The defendant could have suffered no prejudice. Defendant's counsel did not object but readily consented to this unusual manner of privy communication with the jury by the trial judge.
If the record showed affirmatively the defendant had been prejudiced by the improper communication there would be reversible error. Likewise if the record failed to show whether or not the communication was prejudicial it would be presumed to be so, and be cause for a reversal. "On the other hand if the record shows affirmatively that the communication had no tendency to influence the verdict the judge's impropriety in communicating with the jury out of the presence of the defendant does not require a reversal. LaGuardia v. State, 58 A.2d 913 (Md. Ct. of App. 1948); Dodge v. United States, 2 Cir., 258 Fed. 300, 7 A.L.R. 1510; Outlaw v. United States, 5 Cir., 81 Fed. 2d 805."
Commonwealth v. Kelly, 292 Pa. 418, 141 A. 246 (Pa. Supp. 1928), was a case very similar to the instant one. That involved the trial of an indictment for murder in which the trial judge in chambers received a written communication from the jury after which further written instructions were given it. The instructions were not submitted to counsel nor were they given to the jury in the presence of either the defendant or his counsel. The court held the judgment should not be reversed unless "The court is convinced not only that error was committed, but also that such error did in all probability harm the defendant."
Reliance is placed by the defendant on the opinion of the former Supreme Court in Leonard's of Plainfield, Inc., v. Dybas, 130 N.J.L. 135 (Sup. Ct. 1943). That case is clearly distinguishable. There the trial judge entered the jury room alone and gave supplementary instructions to the jury in the absence of defendant and his counsel. These instructions
were not recorded and the appellate tribunal was unable to say whether their effect was prejudicial or otherwise. So likewise is State v. Duvel, 4 N.J. Misc. 719 (Sup. Ct. 1926); affirmed, 103 N.J.L. 715 (E. & A. 1927), clearly distinguishable on the facts.
With respect to the contention there was reversible error in that the defendant was not present when the communication was discussed with counsel, the supplemental charge given to the jury, and also when arguments were had in chambers respecting the admissibility of evidence and proffers of proof this is convincingly and effectively disposed of by the rule laid down in State v. Nardella, 108 N.J.L. 148 (E. & A. 1931). There the defendant was convicted of murder in the first degree and had excepted to a re-reading of a portion of the charge to the jury in the temporary absence of defendant. Such a procedure was held not to be error, no step original in its character being taken. The court said "The test is whether anything occurred in his absence new to the proceeding and in conflict with his right to be confronted by the witnesses, to be represented by counsel, and to maintain his defense upon the merits."
From the record before us we find no defeat of or interference with the defendant's right to maintain his defense on the merits and no prejudicial error by reason of his absence from any stage of the trial. All exhibits dealt with in chambers were marked only for identification and later marked in evidence in open court. The test, was the presence of the defendant a postulate of justice was fully met.
No objection to the procedure followed was made by counsel nor was any request made that the defendant be present. A defendant has no absolute right to be present on each occasion when questions of law are argued and any right which he may have may be waived by him or his counsel. United States v. Johnson, 129 Fed. 2d 954. As therein said, "The defendant must be deemed to have the absolute right to hear everything which the jury hears if he is to protect himself * * *. He must be ...