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State v. John Henry Tune

Decided: December 20, 1954.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN HENRY TUNE, DEFENDANT-APPELLANT



On appeal from the 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 Oliphant, J. Heher, J. (dissenting). Wachenfeld, J., concurring in result.

Oliphant

Defendant-appellant was tried and convicted on March 4, 1954, before Judge Speakman and a jury in the Essex County Court, of murder in the first degree without recommendation for life imprisonment. The mandatory death sentence was imposed.

The indictment was in the usual short form, charging, in substance, that on the 22nd day of August, 1952, the defendant did "wilfully, feloniously and of his malice aforethought, kill and murder William Prather," etc. Cf. R.S. 2:188-11, R.R. 3:4-3; State v. Bunk, 4 N.J. 461, 467 (1950), certiorari denied 340 U.S. 839, 71 S. Ct. 25, 95 L. Ed. 615.

The theory of the prosecution was that the murder was committed in the perpetration or in the attempted perpetration of sodomy or robbery or both. N.J.S. 2 A:113-1. Its case was predicated primarily upon the confession of the defendant supported by other incriminating evidence produced against him. State v. James, 96 N.J.L. 132, 147 (E. & A. 1921); State v. Cole, 136 N.J.L. 606, 610 (E. & A. 1947).

The story of the murder and the events leading up to it from the mouth of the defendant, as set forth in his confession, was that he met the deceased on the afternoon of August 22, 1952 at a tavern in Newark and had two drinks with him. He was short of money and decided he was going to steal some from "Bill." Deceased's automobile was parked in front of the tavern. While they were drinking they were joined by a girl by the name of Naomi Boyd. Defendant asked the deceased for his car keys "so I could get into his car and drive him somewhere where I could get his money." But on hearing the request Naomi Boyd took the keys of the deceased away from him.

On leaving the tavern deceased asked the defendant to come with him and they, together with the Boyd woman, got in the car. She left the car in the vicinity of her home on

Morris Avenue, Newark. The defendant still had robbery in his mind for he said, "I still wanted to get Bill's money from him so I decided that if I got him a girl that he would go to bed with his clothes off, and I could get his money out of his clothes." Though he tried he was unsuccessful in procuring a girl. He went to the apartment of a friend to retrieve a radio he had previously loaned to her, and on returning to the car found deceased asleep. He made him move over and then drove the car himself. He sidewiped several cars after which the deceased awoke and resumed the driving and they proceeded to the home of the deceased in Irvington.

They went up an alleyway and down into the cellar of the house into a small room with a sofa in it. The defendant understood while driving to the house that the deceased wanted to have unnatural relations with him and "I went along because I was interested in getting the money away from him."

We will omit the sordid details but defendant described the act of sodomy which he committed. While committing it he took Prather's belt and put it around his neck to choke him. He said, "When I started to choke him I didn't intend to kill him. I merely intended to make him unconscious so that I could steal his money. I kept twisting the belt until he became limp. Then I let go." Defendant then went through Prather's clothes. He took a wallet and two sets of keys, and still in search of money he ransacked through two duffle bags which were in the room.

After leaving the cellar the defendant went to the front entrance of Prather's house, rang the bell, and when Mrs. Prather answered he endeavored to obtain $20 from her on the pretext that her husband had been in an accident and needed it. This occurrence was corroborated by Mrs. Prather at the trial and she identified the defendant as the individual who endeavored to get the money from her. One John Thomas Dixon, who occupied a portion of the Prather apartment, likewise recounted this occurrence and identified the

defendant as the man who had had the conversation with Mrs. Prather.

The body of the deceased was found the following day in the cellar room by his wife, who called the police. The wallet containing deceased's social security card which defendant took from Prather was torn up and thrown away by him, as was a set of keys he had taken. The pieces of the wallet were found and received in evidence.

Defendant in his confession said that the day following the murder he told his wife he had "croaked a man." He also said he spoke to a "Phyllis" who lived in his apartment and that he had told her the same thing. At the trial Phyllis McNair, the person just referred to, testified that defendant had said to her he believed "he had killed a man last night," that he "was down in the basement and that he believed he had killed a man with his belt, that he had on the man's belt." A William B. Stargell, with whom the defendant worked, likewise testified that on the morning of August 23 the defendant said to him, "I believe I killed a man last night."

On being called to the scene of the crime police officers found a leather belt in the murder room and on it being shown to the defendant he stated, "my belt, the one I choked Bill with is a leather belt, snakeskin in color." He explained to the police officers how in the darkness he had reached for his own belt but got Bill's instead.

The assistant medical examiner testified that Prather's death was due to strangulation, and the autopsy revealed that the lacerations "were compatible with the lesions that you could expect in sodomy."

The defendant was arrested about 4:00 P.M. on August 23 and taken to police headquarters. He was asked about the events of the previous evening and yelled "All right, all right; I killed a last night and would do it again." At 8:30 that night he was taken to the scene of the crime where he re-enacted it. He was then taken to the Irvington Police Headquarters where he was served some

food and at 12:20 A.M. began to make his confession. The next afternoon he was interviewed by an impartial citizen-witness, Mr. William T. Hope, who asked defendant "if he made those statements of his own volition, and he said that he did," and on being asked "if he had been bounced around" the defendant "just grunted and he said no." Mr. Hope testified that the defendant read his statement "aloud" and that it took him three-quarters of an hour to read it.

The defense was a general and specific denial that he had killed Prather or that he had committed or attempted to commit sodomy or robbery. He testified that he had done a lot of drinking on the day of the murder, that the deceased, he and another man he did not know went to the cellar of Prather's house; that this "fellow" and the deceased went into another room and he went to sleep, he did not know for how long, and that when he awoke he left the place. He said this was the story he had told the police.

He made a categorical denial of all incriminating statements contained in his written statement; he denied he had made any statements concerning the commission of the killing, or of any attempted sodomy or robbery of the deceased; and he stated he signed the confession only after threats were made by the police that his wife, who was then pregnant, would be beaten and locked up. On cross-examination, when asked to explain the presence of the deceased's belt on him, he stated "I can't explain how it got on," and when asked about his own belt being missing, he said he didn't notice anyone removing his belt while he was asleep.

The appellant raises seven points as to why the verdict should be set aside: (1) the trial court's refusal to allow inspection by the defense before trial of the defendant's confession; (2) the refusal of the trial court of the right to cross-examine a witness as to her former conviction of crime; (3) the impregnation of the jury with the thought that the defense was unfair; (4) the impropriety of the cross-examination of defendant's wife and the admission of incompetent prejudicial testimony; (5) unfairness in the

procedure in determining the voluntariness of the confession and its admissibility into evidence; (6) errors in the charge of the court and its refusal to charge certain requests submitted by the defendant; and (7) error with respect to the testimony of the witness Stargell.

It is significant that no claim is made that the verdict was against the weight of the evidence and in our judgment no such claim could successfully be made.

We will deal with the several points in the order briefed and argued.

I

The right to examine and inspect a confession was recently determined by this court when that phase of this very case was previously before us, State v. Tune, 13 N.J. 203 (1953), and defendant's chief complaint now seems to be against the rule adopted by us then.

At that time the trial court had granted the defendant the right to inspect his confession, which order, on appeal of the State, we reversed. There the affidavit in support of the motion was made by defendant's counsel in which it was said that the defendant could tell counsel nothing of its contents. When a subsequent motion for inspection was made in the instant case it was supported by an affidavit of the defendant relating to the circumstances under which the confession was obtained and in which he denied any unnatural relations with Prather. Further, an affidavit of defense counsel stated that they had learned that sodomy was involved in the crime, that the defendant had denied to them any act of sodomy, that such an act involved the "existence of abnormal personality characteristics" which required the aid of a psychologist or psychiatrist, and without an inspection of the confession to determine the necessity of calling upon a psychologist or a psychiatrist to examine the defendant and to determine the necessity for his expert testimony the defendant would be denied a fair trial.

At the argument of this motion the defense was apprized categorically of the fact "that the evidence clearly indicated that there was sodomy connected with the case." Certainly the defendant knew whether there was or was not and the trial court authorized defense counsel to retain a psychiatrist, at state expense, to examine the defendant before trial. True, the defendant denied to the psychiatrist that he had committed or attempted to commit sodomy, but when the confession was admitted in evidence at the trial there was no motion for a recess to allow the psychiatrist to confront the defendant with that confession and again examine him.

We held in our prior decision in this case that a defendant has no absolute right to an inspection of his confession prior to trial and that an application for such an inspection is addressed to the court's sound judicial discretion, citing State v. Cicenia, 6 N.J. 296 (1951). We adhere to that rule and in the instant case can find no abuse of discretion, nor that any such abuse had led to "unfairness" at the trial which deprived the defense of ...


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