On appeal from Essex County Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by Burling, J. Heher, J. (dissenting).
[11 NJ Page 176] The appeals before us are brought by two defendants, each of whom was convicted by a jury of murder
in the first degree and sentenced to death. The defendants-appellants, Silvio De Vita and Joseph Grillo, together with one Ralph Rosania, were indicted for murder and subsequently were brought to trial together in the Essex County Court, Law Division. The theory of the State's case was that the defendants' crime was elevated to first degree murder under R.S. 2:138-2 (substantially reenacted in N.J.S. 2 A:113-2), the killing having occurred during the course of a robbery. The jury brought in verdicts of guilty of murder in the first degree against each of the three defendants, and recommended life imprisonment as to Rosania. All were sentenced, Grillo and De Vita having imposed on them the death sentence. Grillo and De Vita have filed and argued concurrently separate appeals to this court from their respective judgments of conviction, but inasmuch as the major portion of the questions involved are identical we shall dispose of both appeals in this single opinion. Rosania did not appeal.
The facts surrounding the commission of the killing from which the prosecutions emanated appear to be uncontroverted. On the night of Friday, November 9, 1951, Thomas Lofrano the manager of a large food market in Newark, collected the receipts from the various departments of the market in a canvas deposit receptacle, locked it, and placed it in a brown paper bag. The sums thus contained were $5,161.21 in cash and $476.60 in checks. He and James Law, a uniformed special officer, then left the market and entered Law's automobile, parked on the busy street on which the store fronted, for the purpose of taking the collected receipts to a bank for deposit. As Law was about to start the car, the door on Lofrano's side was opened, and De Vita, who was standing close to the side of the car, pointing a gun across Lofrano's stomach, said: "It's a stickup." Grillo, also armed, opened the door on Law's side. Law raised his hands, there was a shot, Law slumped over the wheel and Grillo reached into the car and took the bag containing the day's receipts.
Both robbers escaped. Law died about two hours later in the hospital, without regaining consciousness. An investigation
by the Newark police and the Essex County Prosecutor's office ensued, directed to the solution not only of the Law killing but of other then unsolved robberies in the area.
On November 13, 1951, at about 4:30 A.M., detectives who had been watching for Grillo, who was under suspicion as a result of information obtained by the police, sought to apprehend him as he entered his home. He fled into the house, jumped from an upstairs porch into a neighbor's yard and was overtaken as he attempted to vault a fence. When he was taken to police headquarters it was discovered that his legs had been injured in the jump, and he was taken to a hospital for treatment (about 8 A.M.). At 1:00 P.M. on the same day he was returned to police headquarters for questioning. At about the same time De Vita was apprehended elsewhere by detectives and taken to police headquarters. The police investigation also resulted in the arrest about 3:35 P.M. of Rosania, a former employee of the market whose property was the subject of the robbery during which Law was killed.
In the late afternoon of November 15, 1951 Rosania admitted his part in the robbery in which Law was killed and detailed to a police sergeant the planning of the robbery with Grillo and De Vita over a period of more than a month prior to the crime. On the basis of this information De Vita and Grillo were again questioned, and each admitted his participation in the robbery and the killing of Law. More evidence consisting of bags containing money was located by police where it had been hidden behind ceiling rafters in Grillo's home. Grillo was confronted with this evidence during his interrogation.
Following the oral admissions of the three suspects, on the night of the 15th of November, written statements were separately made by all three. The written statements were completed after midnight and all three of these defendants were brought together; each statement was read to them, and each (except Rosania -- who requested an assistant prosecutor to read his aloud for him) read his own statement in the
presence of the others. The statements contained details of the defendants' past association, planning and preparation for the robbery, perpetration thereof, and the facts subsequent thereto relevant to distribution of the spoils. All three were arraigned on a murder complaint (filed at about 11:00 P.M. on November 15) on the morning of November 16, 1951.
On November 17, 1951 Grillo pointed out the approximate location in the Passaic River where he admitted he threw the murder weapon. It was recovered by the police on that day.
At their subsequent trial on the murder charge (after indictment) the defendants took the stand in their own behalf. Their testimony in substance verified their oral and written statements above mentioned. Grillo and De Vita contended that the actual shooting of Law was unintentional and accidental; Grillo, that the gun "went off" as he tried to cock it.
As hereinbefore recited, the trial resulted in the conviction of all three defendants of first degree murder, and Grillo and De Vita appealed to this court.
The questions involved include: (a) admissibility of the confessions of Grillo and De Vita and validity of the trial court's instructions to the jury relevant to the confessions: (b) admissibility of evidence; (c) whether there was error in various portions of the trial court's charge to the jury (hereinafter detailed); and (d) whether the prosecutor's remarks to the jury in his opening and summation were prejudicial to the rights of the defendants. Neither defendant asserts that his conviction was against the weight of the evidence.
The first question involved herein is whether the Grillo and De Vita confessions were properly admitted in evidence, i.e., whether they were voluntary.
Grillo's present contention is that his confessions and admissions were not voluntary because he was questioned "almost continuously" by the police and was denied adequate rest,
food and care and was denied permission to communicate with family and counsel. De Vita makes substantially similar contentions. Neither alleged that there was any physical force, threat or promise made to induce his confession and both testified that no such abuses existed in this case.
Grillo's testimony was corroborative of that of police officers and other witnesses as to hospital care and other attention given him for his injured legs, including the provision of a wheel chair for his convenience. Both Grillo's and De Vita's testimony as to the sufficiency of food was vague and conflicting; and their testimony as to adequacy of rest was conflicting and negatived their allegations of incessant questioning. The remaining pertinent witnesses also negate their allegations. The answers given by both of these defendants to leading questions respecting denial of permission to communicate with their families, friends and counsel were perfunctory. In these respects the other pertinent witnesses testified that there were no requests and consequently no denial of communication.
The legal questions here involved as to admissibility, and the voluntary character, of confessions and admissions, including effect of allegations of delay in arraignment, alleged denial of adequate rest, food and care, alleged denial of communication with family and friends, are substantially the same as those raised in the recent case of State v. Cooper, 10 N.J. 532 (1952). The applicable principles of law relating to such questions have been fully discussed and marshalled in Mr. Justice Wachenfeld's opinion in said case.
With respect to the allegations of denial of permission to consult counsel during the police interrogation, the former Court of Errors and Appeals has expressly determined this alleged constitutional question, denial of counsel during the period between arrest and arraignment and its effect on a confession obtained during that period, adversely to the contentions here presented by the defendants, in State v. Murphy, 87 N.J.L. 515, 528-531 (E. & A. 1915). In State v. Murphy, supra, the court said:
"The constitutional provision, whose protection is invoked, contemplates a criminal prosecution and provides for a speedy and public trial by an impartial jury, that the accused shall be informed of the nature and cause of the accusation, be confronted with the witnesses against him, have compulsory process for obtaining witnesses in his favor, and (conjunctively) have the assistance of counsel for his defense. It clearly appears that the rights thus intended to be secured to a criminal defendant are rights arising from a criminal prosecution -- that is, a trial upon an indictment. A prisoner making a confession is not confronted with any witnesses, at least never in the sense that they are examined in his presence, he can have no process for witnesses in his favor upon such an occasion, and, consequently, he is not entitled to the assistance of counsel to save him from himself. That is done later by the trial court if the confession were unlawfully obtained." (87 N.J.L. at pages 530-531).
"* * * the law over the years in this State has been that a person is only entitled to counsel to aid him in his defense, not to save him from his own voluntary acts, State v. Murphy, 87 N.J.L. 515 (E. & A. 1915); State v. Cole, [136 N.J.L. 606], supra, * * *."
The ultimate test still remains -- was the confession voluntarily made?
We find no error in the allegations of denial of due process, leveled at the confessions of the defendants and their introduction in evidence in this case was proper. The record shows marked spontaneity of attitude of the defendants to disclose the information in the confessions, as expressions of free choice and not the product of physical or mental ordeal or compulsion. There was no fundamental unfairness in the use of the evidence.
Further, it has been held in State v. Cooper, supra:
"Whether a statement or confession is, in fact voluntary, depends on the facts of the individual case and the determination of the trial court will not be disturbed on appeal where the evidence is adequate to sustain it. State ...