On appeal from the County Court, Monmouth County.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Jacobs and Brennan. For reversal -- Justices Heher, Wachenfeld and Burling. The opinion of the court was delivered by William J. Brennan, Jr., J. Wachenfeld, J. (dissenting). Mr. Justice Heher and Mr. Justice Burling concur in this dissent.
Appellants Vaszorich and Brown, and one Berry who does not appeal, were convicted in the Monmouth County Court upon an indictment for the murder on September 8, 1951 of Jeremiah Delhagen. Vaszorich was sentenced to death, and Brown and Berry, upon the jury's recommendation, to life imprisonment. Vaszorich was 19 years of age and both Brown and Berry were 17 when the crime was committed.
The decedent, aged 60, lived alone in a four-room bungalow at Wayside. In the late evening of September 8, 1951 he was asleep in a chair in his living room when the three youths, in accordance with a plan made some days earlier to burglarize the house and rob Delhagen, entered a bedroom adjoining the living room through a window opening upon the front porch. Before going into the house Vaszorich obtained Mr.
Delhagen's steelworker's claw wrench, some 17 inches long, from the cellar. Vaszorich went almost immediately to the living room where he brutally beat the sleeping man about the head numerous times with the heavy wrench. When decedent, awake and begging not to be hit, struggled to rise, Brown and Berry came to Vaszorich's aid and helped subdue him until Vaszorich succeeded in binding him with some strings of Christmas tree lights which Berry found in one of the bedrooms. Pillows and some furniture were also piled on him. Meanwhile Berry and Brown had stripped the decedent of his trousers, and Vaszorich took from his pocket a wallet containing approximately $300. The search of the house for other valuables was continued and a wrist watch and gun were taken. The decedent continued to struggle to get up, whereupon Vaszorich dragged him into the kitchen and beat him again about the head with the wrench and piled furniture, blankets and pillows and other things upon him, after which he joined Brown and Berry at the front of the house, threw the wrench in the front yard and the three left. They drove away in an automobile they had parked nearby. The car was owned by one John Dean or Dino with whom Brown lived and who allowed Brown the use of it. En route to Shark River Hills Vaszorich gave Brown and Berry each one-third of the stolen money and threw the wallet, the gun and the wrist watch out of the car window at different places on the way. Vaszorich's shirt became considerably bloodied during the assault upon Mr. Delhagen, and when they reached Shark River Hills he attempted to burn his shirt, but unsuccessfully; after the three confessed the shirt was recovered by the authorities. Brown and Berry also had blood stains on their clothing. The three went to a diner in Belmar where they washed up in a washroom and then sat down to a meal of pie, coffee and sandwiches.
In the meantime Mr. Delhagen managed in some way to get to the home of a neighbor who summoned the police. He was immediately taken to Fitkin Memorial Hospital but did not respond to treatment and died in the early morning of September 10. Later that same morning an autopsy was
performed. This disclosed that the blows with the wrench caused a skull fracture and intercranial hemorrhages. There were 14 lacerations on his head and four others distributed on the left shoulder, arm and wrist and hand.
Appellants argue a number of points, some applicable to both and others to only one of them. The points will be considered under appropriate topic headings.
Vaszorich alleges error in the admission of his confession into evidence. He contends that the proofs show that it was not voluntarily given in matter of law, that from the time of his arrest early on October 1 until the confession was signed on October 4 "he was questioned for hours on end every day by waves of inquisitors; was taken in and out of cells; was moved around to various police headquarters throughout the county and to the jail at Freehold; was taken out by detectives to look for various items allegedly used in connection with the crime; was taken to a State psychiatrist; was given very little food at irregular hours and in general, every psychological trick and pressure was applied by police authorities of various municipalities, by detectives attached to the Prosecutor's office and by the Assistant Prosecutor himself." The argument concludes, "It cannot be said on the bare record itself that a statement given by a nineteen year old boy after hours and days of questioning, illegal detention, irregular meals, shifting from one police station to another and faced at all times by groups of questioning authorities, can possibly be voluntary."
This proposition that Vaszorich was the helpless victim of a relentless and reprehensible "suction" process is without support even in his own testimony. The governing principles upon this question have been discussed in several of our recent opinions and no purpose would be served in stating them again. See State v. Cooper, 2 N.J. 540 (1949); State v. Bunk, 4 N.J. 461 (1950), cert. den. 340 U.S. 839, 71 S. Ct. 25, 95 L. Ed. 615 (1950); State v. Pierce, 4 N.J. 252 [13 NJ Page 108] (1950); State v. Cooper, 10 N.J. 532 (1952); State v. Grillo, 11 N.J. 173 (1952), cert. den. U.S. , 73 S. Ct. 1123 (1953). The essence of the inquiry is whether in obtaining the confession there was observance of "that fundamental fairness essential to the very concept of justice," for "the aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence whether true or false." Lisenba v. People of the State of California, 314 U.S. 219, 236, 62 S. Ct. 280, 290, 86 L. Ed. 166, 180 (1941). And "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 v. Cooper, supra, 10 N.J., at 550. Here Vaszorich admitted that after his arrest on October 1 at his mother's home in Ocean Grove he was first taken to the local police station and there turned over to the Deal police who took him to the Deal police station where he stayed until the next morning; that during the morning of October 1 he was questioned about matters other than the Delhagen case but not at all in the afternoon or early evening about anything except that he was interviewed by some reporters; that he was first questioned about the Delhagen murder starting at about a quarter before eleven that night and continuing, according to him, until 1:30 in the morning of October 2, after which he was not disturbed until 7:30 that morning when county authorities took him into custody and he was arraigned before a magistrate upon the charge of murder; that following that appearance he was taken to the jail at Freehold, the county seat, and from there to some place, with Berry, on an investigation not connected with the Delhagen case, and for a time during the afternoon was with the Director of the State Hospital at Marlboro, a psychiatrist, returning to the jail about 7:30 that evening, after which he was not disturbed through the night; that throughout the day, October 2, little was said to him by the authorities about the Delhagen murder; that on October 3 he was not interrogated
about the case except as officers mentioned it to him incidentally while "walking through the woods"; that on October 4 he was brought to the prosecutor's office at about 2:30 P.M. to be questioned about the Delhagen murder and that in the course of the afternoon he gave his statement, signed it and initialled the several pages. Plainly, we need not refer to the other abundant proofs supporting the finding of the trial judge in order to demonstrate that Vaszorich's contention is wholly without substance. Cf. State v. Grillo, supra. "Psychological coercion" in any sense recognized in the law was not proved. See Stein v. People of the State of New York, 73 S. Ct. 1077 (1953).
Brown's contention is that the trial judge erred in not instructing the jury, as Brown requested, that "whether the statement of Brown was voluntarily made or not is a question to be decided by you," and in charging instead: "Where there is a dispute as to the voluntary character of a statement or confession made by a defendant, the trial court must pass upon the quality of the confession. This Court after receipt of the testimony for and against the voluntary character of the statements made by these three defendants has admitted them into evidence. The confessions are now part and parcel of all the evidence in this case, and it is left for the jury to decide whether the defendants spoke the truth when they confessed. In other words, the jurors within their province can weigh them, accept them or reject them, as you choose."
We do not see that the trial judge entirely withdrew the question of the voluntariness of Brown's confession from the jury, particularly when considered with the fact that the judge charged Brown's request number 10 which was: "If you find that the statement taken from the defendant George Eugene Christian Brown was not voluntarily made by him, I charge you that the requirement of the law is not to exclude from consideration evidence which is presumptively false, but to prevent unfairness in the use of evidence whether true or false." But, even accepting Brown's view of the effect of the charge given, it is settled in this State that since the determination whether or not a confession is voluntary
governs its competency to be received in evidence, the factual determination whether it is voluntary should in the first instance be made by the court consistent with the principle that matters of the competency of evidence are exclusively for the court to decide. It was, therefore, not error upon the receipt of the confession in evidence to leave to the jury only the question of the credibility of the confession, to believe, or not, the facts set out therein. State v. Cole, 136 N.J.L. 606 (E. & A. 1948), cert. den. 334 U.S. 851, 68 S. Ct. 1503, 92 L. Ed. 1773, 334 U.S. 862, 68 S. Ct. 1519, 92 L. Ed. 1782 (1948); State v. Foulds, 127 N.J.L. 336 (E. & A. 1941).
We observe in passing that the finding of the trial judge that Brown's confession was voluntarily given is fully sustained by Brown's own testimony. He was arrested in the early morning of October 1 at the home in Asbury Park of John Dean or Dino, with whom he lived. He was detained during the morning at the Asbury Park police headquarters and questioned about matters other than the Delhagen murder. He was then taken to Deal police station. He was first questioned about the Delhagen murder that night and within an hour confessed to his part. He was not disturbed during the night and admits that the following morning when shown his completed statement he read and signed it and initialled each page in the presence of a press photographer. It is admitted on his brief that he was taken before a magistrate shortly afterwards during the same morning and arraigned on the murder charge.
Nor do we perceive any merit in the argument on his brief that he was entitled by the provisions of the Juvenile and Domestic Relations Court Act, R.S. 9:18-12 et seq. (superseded by N.J.S. 2 A:4-14 et seq.), to be processed in the Juvenile Court under the procedures applicable under that law to juveniles between the ages of 16 and 18. He concedes that that court was without jurisdiction to try him upon an indictment for murder. In re Mei, 122 N.J. Eq. 125 (E. & A. 1937). And the amendment of R.S. 9:18-12 by L. 1948, c. 284, p. 1191, expressly authorized the referral
of any case involving a minor between the ages of 16 and 18 "charged with an offense of a heinous nature" "to the prosecutor of the pleas of the county wherein the court is situate" to "be dealt with in exactly the same manner as any other criminal case involving an adult offender." An order of referral in compliance with the statute was duly entered on October 3 and was received in evidence.
Brown also alleges error by the trial judge in sustaining the State's objection to a hypothetical question asked a psychiatrist who testified for Brown that he was a psychopathic personality susceptible to suggestion. The question, it is said on Brown's brief, sought to elicit the opinion of the expert witness whether in making the confession "he was impelled to do so" by the alleged suggestions of the police officers "that it would be better for him" if he did. It is not made clear on the brief just how, if true, this would make the confession involuntary in the legal sense. However, the question was not phrased to produce the opinion whether in such case the confession was voluntary or involuntary. The witness was asked to state his opinion "whether or not George Brown, having the characteristics and the mental capacity to which you have testified and which are incorporated in my question, would be able to resist the suggestions made that it would be better for him to make a statement." Counsel insisted in the course of the argument on the State's objection that this was tantamount to asking whether the witness had an opinion whether Brown's "statement [was] due to a voluntary act, or was it due to a suggestion that was made to him by someone?" The trial court did not agree, but offered counsel the opportunity to rephrase the question in that form, saying "Why don't you ask him?" Counsel did not, but stated, "I shall rest on that, sir." The fact is that earlier the witness had responded that he could not answer yes or no when upon the same hypothesis he was asked, "Can you tell with reasonable certainty whether the statement so made and signed was the voluntary act of Gene Brown? Did it come of his own volition?" There was no error in the trial court's ruling in the circumstances.
THE JURORS' INSTRUCTION MANUAL
When the panel from which the jury was drawn reported for service each member was given a blue-covered pamphlet entitled "Primary Instructions to Jurors," endorsed "Compliments of" the Sheriff of Monmouth County. This was not the "Manual for Petit Jurors" prepared under the direction of this court and now the only manual of this type authorized for distribution in the courts of this State. The challenged pamphlet contains a number of wholly inaccurate or misleading statements of propositions of law among which is that which occasions the controversy here, namely, a completely erroneous definition of reasonable doubt under our law. There is also imprinted on the last page a quotation from Lycurgus as follows: "On the head of the criminal lies the crime; but in a miscarriage of justice the jurors delinquent become participants of guilt."
The discovery by the trial judge and counsel that the members of the panel were in possession of copies of the pamphlet was first made in the course of the voir dire examination of prospective jurors and at the time only 5 of the 14 jurors ultimately selected had been chosen. The selection of the jury required over two weeks from November 26 to December 10. The trial judge immediately upon the completion of the voir dire examination of the prospective juror during whose interrogation the fact became known promptly dealt with the problem as follows:
"The Court: May I see that blue book, please?
The Court: I don't know by whose authority this book entitled 'Primary Instructions to Jurors. Compliments of Morris J. Woodring, Sheriff, Monmouth County,' which booklet is supposed to contain primary instructions to jurors, was permitted to be given to the jurors. I don't know that any judge in this county has authorized the issuance of this book. At least I find nowheres contained therein such authorization.
I have not had the opportunity to examine it too carefully, but I can understand where it might be misleading when in the hands of laymen who know nothing about the law, and therefore I am going to instruct the Sheriff to pick up from each and every one of you who are serving on this panel of the jury the books in question, in
cluding the five jurors who have already been sworn. It has been the practice in this State since the inception of the new Constitution to give the prospective jurors general instructions upon the opening of the session concerning their responsibilities and their duties in a general way, and then almost each individual judge practically repeats nearly the same instructions to you when you are sworn in a particular case.
In view of the fact that the law is given to you by the Court and under the system you must take the law from the Court and not from the Sheriff, I am asking that these booklets be picked up by Sheriff White now.
Mrs. Lewis: May they retain the list, your Honor?
The Court: Yes, they may retain the list.
That's all right as long as he doesn't have it here. One juror in the box has his at home, but he won't be able to go home. So it won't do him any good.
Mr. Juska: May I be heard?
Mr. Juska: The defense, sir, would like the record to show that pursuant to your Honor's instructions the jurors in the box Numbers 2, 3 and 4 returned to Sheriff White the books in question.
The Court: 2, 3 and 4. What happened to the other two? Where is yours?
Juror Number 1: Mine is home in my other bag.
The Court: Where do you have yours?
Juror Number 5: Mine is home in another suit.
The Court: It may be noted that all the books that are available except the two, Juror Number 1 and Juror Number 5, have been picked up.
Mr. Juska: May we now have a copy of the book marked into evidence?
The Court: What is the purpose of it?
Mr. Juska: Do you want it orally here or at the side bar so that it may not become part of the record?
(Counsel confer with the Court at the bench.)"
Vaszorich argues that it was error not to receive the pamphlet in evidence either at that time or a number of days later on December 17, the last day on which testimony was taken, when his counsel renewed the offer of the pamphlet in evidence "as part of my case." We note that the record does not disclose that on either occasion the trial judge was informed of the purpose of the offer. We are told on the brief that it was "so that his (Vaszorich's) record might be made for review." It is also argued that it was error for the trial judge "not to declare a mistrial," although no motion for a
mistrial by any of defense counsel is shown by the record. In the circumstances both this court and the trial judge might well be justified in concluding that counsel did not view the situation as serious enough to call for the break-up of the trial and was content with the trial court's action in taking up the pamphlets and in instructing the jury that they were to take the law from the court. However, we shall deal with the contention made on the brief that Vaszorich is entitled to a reversal of his conviction on the ground that "this booklet is incorrect, inflammatory and highly prejudicial to the defendant."
Vaszorich relies on Panko v. Flintkote Co., 7 N.J. 55 (1951), and Palestroni v. Jacobs, 10 N.J. Super. 266 (App. Div. 1950). Those cases lay down the principle that irregular matter having the tendency for improper influence "in a manner inconsistent with the legal proofs and the court's charge," Panko v. Flintkote Co., 7 N.J., at 61, which gets to the jury under circumstances which deprive the party adversely affected by it of the opportunity to rebut or counteract such influence, may be sufficient reason for nullification of the jury's verdict without further inquiry as to the actual effect of the irregular matter upon the jurors' minds. In each of those cases the jury verdict was annulled because the party affected had no such opportunity as the irregular matter reached the jury after the jury had retired and during their deliberations. But the principle of those decisions is not applicable here; the irregular matter came to light at a time when all parties and the trial court had a full and ample opportunity to take steps to avoid any improper influence of the manual upon the minds of the jurors and prospective jurors. The real question is whether in the circumstances of the case, with particular reference to the precautions taken by the trial judge, enough was done to dispel the tendency of the contents of the manual for improper influence. We think the prompt and firm action of the trial judge disclosed by the excerpt from the record above was sufficient in the circumstances. Apart from the fact that no motion for mistrial was made, even if one had been made and denied, it
is not generally necessary that a mistrial be declared. It will ordinarily suffice that the trial judge instruct the jury in definite and unexceptionable terms upon the right of the matter, which we think the trial judge did in this case, both at the time and later in his charge, when he instructed them that the jurors were to decide the case upon the evidence alone according to the law as he gave it to them. Cf. State v. Bolles, 13 N.J. Misc. 273 (Sup. Ct. 1935).
Counsel for Brown did not join in either proffer of the pamphlet in evidence made by counsel for Vaszorich, but argues error in the trial judge's refusal to make a requested charge, "I charge you that a reasonable doubt is a doubt existing for a reason, but a juror may have reasonable doubt, though unable to give good and sufficient reason for the doubt, or express it in words," informing us on the brief that the charge was requested to make certain that the jurors were not misled by the improper definition of reasonable doubt in the manual and particularly the sentence, obviously erroneous under our law, that "a reasonable doubt is one for which, should he be called upon, a juror can give a reason." The trial judge refused to charge the request upon the ground that the charge made upon the subject of reasonable doubt covered the submission. We agree that it did and find no error. The submission was fully embraced within that part of the charge which instructed the jury that reasonable doubt "refers to that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge. The evidence must establish the truth of the fact to a moral certainty, a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it." Donnelly v. State, 26 N.J.L. 601 (E. & A. 1857).
Both appellants assert prejudice allegedly resulting from the continuance of the trial sessions of December 10,
11 and 12 through the evening, after a dinner recess, until 9 o'clock. The trial judge ordered the evening sessions after securing the authorization of the Chief Justice as required by Rule A1. The basis of the asserted prejudice is stated on Brown's brief: "The placing of such a burden upon counsel is a denial of the constitutional guarantee of the right of representation by counsel."
The trial judge first announced his intention to have evening sessions on Friday, December 7, and no objection was interposed. Again, on Monday, December 10, after selection of the jury was completed and before the opening statements by counsel, the judge announced: "Incidentally, I am going to work until nine o'clock to-night, so guide yourselves accordingly." Again no objection was interposed. It was not until shortly before the close of the afternoon session on that day that all defense counsel requested a reconsideration, asserting "reasons of health" and "that the burden of a murder trial is sufficiently grave without sitting beyond reasonable hours." This was the extent of any objection made.
The gist of the contention is that counsel's representation of their clients' interests was not what it should be under the strain of evening sessions after the protracted period required to select the jury. We think that counsel show understandable but undue modesty. Both were assigned by the court to the defense of their respective clients. The record exhibits that they were unstinting in their efforts and unsparing of their energies and gave fully of their experience and ability in the protection of their clients' rights to a fair trial. They richly earned the commendation expressed by the trial judge at the conclusion of the trial. Their performance is another vindication of the policy of the bench and bar of this State which assures the indigent accused of proper representation on his day in court. We do not find the slightest evidence that the rights of Vaszorich or Brown in anywise suffered from any added strain upon their counsel incident to the night sessions.
Brown asserts error in the denial of his motion for a mistrial after the trial judge sustained his objection to a question asked Brown by the prosecutor during his cross-examination while testifying in his own defense. The question was, "How soon after the Delhagen job were you involved in another armed robbery?" Brown contends that he was entitled to a mistrial because the prosecutor by the question was attempting improperly to show that Brown had committed criminal acts for which he had not been convicted and which were not connected in any way with the indictment for murder on which he was being tried, and that the evidence did not fall within any exception to the rule making such testimony ordinarily inadmissible, citing State v. DePaola, 5 N.J. 1 (1950).
But Brown's testimony on his direct examination was that he had abandoned the common scheme of robbing Delhagen when he saw "all the blood and everything," and that he had become "nervous and sick" at the sight of Delhagen's blood. Immediately before the question at issue he had answered the prosecutor that the "shame" he felt during the robbery and murder was not alone for his part in what was happening to Delhagen but "for both" the robbery and the murder. The trial judge might thus well have viewed the question to be proper upon the authority of State v. Barth, 114 N.J.L. 112 (E. & A. 1935), where it was held that a defendant, on trial for murder committed in attempting a robbery, who testified that after the homicide he suffered from remorse, was properly cross-examined to show that within a month thereafter he was involved in five other robberies. In any event, after sustaining the objection and after extended argument upon the motion for mistrial, outside the presence of the jury, the trial judge summoned the jury back to the court room and stated: "I charge you now, as emphatically as I know how, to disregard that all together. It hasn't a thing to do with the trial of this case. The court has ruled in favor of the defendant Brown in connection
with that question. He need not answer it. So it is not evidence and you will disregard it." We think this instruction clearly sufficed in the circumstances.
Brown also alleges error in the overruling of his objections to two questions put to him, concerning his whereabouts the night before his arrest, upon his cross-examination while on the stand when the voluntariness of his confession was under consideration. The questions were: "Were you at Deal police headquarters?," to which Brown answered, "No, I was not," and "Were you in the custody of any police officers during that time, county detectives or any other enforcement authorities?," and again the answer was, "No, I was not." Brown argues that the questions contain a "harmful insinuation" prejudicial to his rights, despite his negative answers, that "Brown had been implicated in other crimes and that Brown prior to his arrest had been doing something for which he should have been in the Deal Police Headquarters." We think from our examination of the full context of the testimony in which the questions appear that the inference is most strained. In any event, the questions were clearly proper, as the trial court ruled, to test the credibility of Brown's claim on his direct examination that he had spent that night at home sleeping.
Vaszorich contends that he was prejudiced by the action of the trial judge in interrupting his counsel's opening to the jury to press counsel to state his defense. We have examined the colloquy at that point and perceive no impropriety of the trial judge in the circumstances.
THE PROSECUTOR'S SUMMATION
Reversible error is urged by both appellants for alleged inflammatory and prejudicial statements outside the evidence by the prosecutor in the course of his summation.
We have recently had occasion to observe that comments by a prosecuting attorney upon matters not in evidence is highly improper and inconsistent with his obligation under Canon 5 of the Canons of Professional Ethics. State v.
Bogen and Lieberman, 13 N.J. 137 (1953). We also noted in that case, however, that every excursion outside the evidence will not necessarily vitiate a conviction and that on the question whether the improper comment shall have that effect, the making by trial counsel of a timely and proper objection and the action of the trial judge in connection therewith are ordinarily controlling considerations.
There are three excerpts from the prosecutor's summation to which objection is assigned, but from the record it appears that none was objected to when delivered and that objection was first interposed to each of them after the trial judge had permitted the jury to retire to their hotel for lunch with instructions to "return here at a quarter of two." The request on behalf of both defendants was that the jury be "asked to disregard" the remarks "and not to consider them" which, of course, would not be done in the jury's absence. The court accordingly stated that he would cover the subject in his charge. Upon the jury's return from the luncheon recess the court immediately began the charge. At the very outset he emphasized the function of the jury to decide the facts and to disregard anything about the facts which he might say if their recollection did not accord with his, and then stated: "That too, ladies and gentlemen of the jury, applies to statements made by any of the counsel. Arguments of counsel are not evidence."
In State v. Bogen and Lieberman, supra, we held that the improper remarks were not a basis for reversal in light of the facts there presented that some were not objected to, others were objected to and upon objection were withdrawn by the prosecutor, and where objected to, whether withdrawn or not, the trial judge instructed the jury to disregard them. Here under the circumstances that no objection was made until after the jury was excused so that the impropriety of the remarks could not have been dealt with by the judge, and perhaps withdrawn by the prosecutor, at a time when instructions to disregard them, if that was the court's view, might be given when of best effect, we cannot say that what was said in the charge in that regard was inadequate. The
summations were not evidence and the jury was properly told that their deliberations were to be had only upon the evidence. Our conclusion is strengthened by our careful consideration of the irregular comments in all of the circumstances of the case, from which we are convinced that the remarks, singly or in combination, are not such "plain errors affecting substantial rights of the defendant" that we should be moved to exercise our powers under Rule 1:2-19(a).
Appellants contend that the jury verdict against each was fatally defective under the principle expressed in State v. Turco, 98 N.J.L. 61 (Sup. Ct. 1922); State v. Cooper, 2 N.J. 540 (1949); State v. Cleveland, 6 ...