On appeal from the Camden County Court, Law Division (Criminal).
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
Early on the morning of February 18, 1954 two men walked briskly into the luncheonette located at 229 Linden Street, Camden, New Jersey. The owner and operator of the small restaurant, George Booris, 69 years of age, was in charge at the time. Seven patrons were present having breakfast. When Booris opened the cash register behind the counter, one of the men who had entered inserted a coin in the music machine and then stood blocking the door with his left hand on the knob, holding a gun.
Any doubt about the purpose of their visit was quickly dispelled by the curt announcement: "We are going to take the money away from this old fool * * * Nobody go." The other bellowed forth: "Nobody move. This is a holdup."
Booris was commanded to raise his hands, and, according to the overwhelming testimony, did so, although Rios, who was pointing a gun at him, denies it. Booris muttered: "Why are you going to kill me? Take the money but do not kill me." Despite his pitiful plea and his obedience to the command, Rios in cold blood shot him three times while he was standing within 10 or 12 inches of him.
When the owner was prostrate on the floor, Rios rifled his pockets, and he and Cruz, the other man, then emptied the contents of the cash register, containing $21, which was subsequently divided among the defendants, with the exception of Vega.
The victim was removed by the police to the Cooper Hospital in Camden. Emergency operations were performed but without avail. Three days after his admission, and on February 21, he died. The post-mortem examination and autopsy indicated there were 11 wounds altogether caused by bullets, two entering the back. The cause of death was attributed to multiple bullet wounds, shock and hemorrhage.
Intensive investigation by the police quickly revealed, and it was adequately established at the trial, that the plot to hold up and rob the luncheonette had been conceived months before its execution. The restaurant and its proprietor were known to Cruz and Vega, who frequented it on many occasions,
while Rodriguez was seen there two weeks before the commission of the offense.
A fellow countryman of the defendant and a friend of many years' standing testified that Vega, with whom he was sharing a room, informed him he intended to hold up the luncheonette and invited Calavira, the witness, to join in the enterprise. This conversation took place some two months before the holdup was actually effected.
On February 5, 1954 the same witness, together with the defendants Cruz, Rodriguez and Vega, made a trip to Chicago in an automobile owned by Rodriguez, and on the return route there was again a discussion concerning the holdup of the same place. All three defendants talked about it, agreeing to participate and to use Rodriguez' car. The witness testified: "Gabby said that 229 Linden is a good place to make a holdup because it was an old man and cash checks and got a lot of money in there," while Cruz and Rodriguez were quoted as saying: "They going to do the job."
Following the Chicago incident, the same witness, Calavira, and Vega went to New York, where all four defendants met. On the Tuesday prior to the commission of the offense, Vega told him that further plans had been made by Cruz and Rodriguez, and Calavira was again invited to join the holdup, which he declined.
On the night preceding the event, after they had gone from Camden to New York, as hereinafter set forth, Vega visited the witness, Calavira, in his room and told him that Rodriguez and Cruz were waiting downstairs and he, together with Rodriguez and Cruz, was going to hold up the premises at 229 Linden Street with the use of Rodriguez' car and a car he was to operate. For the third time the witness was solicited to join the enterprise and he again refused.
Vega told Adolfo Flores, another witness for the State, on two occasions preceding the holdup that the proprietor of this luncheonette was a good prospect.
On Wednesday night, February 17, 1954, the three defendants, Rios, Cruz and Rodriguez, came to the City of Camden from New York in Rodriguez' automobile, a black
Ford bearing Illinois license tags. Rios and Rodriguez were armed with guns and upon arriving in Camden all three immediately went to the luncheonette located at 229 Linden Street, where they met Vega. All the defendants were at the luncheonette at this time, and one of the State's witnesses overheard Cruz say to the other defendants: "This guy, he got a lot of money; the old man got a lot of money; he cash checks for the customers * * * he is good for shooting."
There were many witnesses who testified to the defendants' presence in the luncheonette on this occasion, and the evidence indicates that if the proprietor had been present the holdup would have been attempted. But he was not there, and accordingly it was planned to stage the robbery the following morning. Vega attempted to make arrangements for the sleeping accommodations of the other three defendants in the house in which he lived, but the owner "threw" them out and refused them admittance to Vega's room.
Vega slept with Alonzo Suggs, despite the fact that he had his own apartment. At about 3 A.M. on the morning in question, Vega left the home of Suggs and returned to the location where the other three defendants were sleeping in Rodriguez' car under a railroad bridge in Camden. He then returned to Suggs' home and about 6 A.M. on the same morning left Suggs' room with Suggs' automobile, which was seen on the morning of the holdup about one-half block from the luncheonette. It was also seen later that morning being driven around the luncheonette about five minutes before the crime was committed.
Sometime between 7 and 8 A.M. the other three defendants, Rios, Cruz and Rodriguez, left the place where they had been sleeping and proceeded in Rodriguez' car to the luncheonette. It was agreed that if the victim arrived at his restaurant in his automobile he was to be held by Cruz and robbed by Rios and Rodriguez was to be waiting in his automobile with the motor running for the purpose of a get-away.
Booris, however, did not arrive as anticipated in his own car but instead came in a taxicab, apparently empty-handed. The plan accordingly was changed and Rios and Rodriguez
entered the premises. Rodriguez gave a gun to Rios and they agreed he was to jump over the counter and grab the victim while Rios took the money. This plan, too, was abandoned and both defendants left the luncheonette and proceeded to the parked automobile, where Cruz was waiting.
The final plan agreed upon and executed resulted in Rios, preceded by Cruz, re-entering the luncheonette, both armed with guns, where they completed the holdup and shot the proprietor, as already narrated.
The day following the holdup, Cruz, frequently referred to throughout the trial as Mayaree, and Rodriguez were apprehended in New York City and returned to Camden. On March 2, Vega, often called "Gabby" during the trial, was arrested in the City of Camden and kept in custody. On April 5, Rios, referred to at times as Utita, was arrested in New York and returned to this State.
There is a conflict in the views of the different defendants as to many of the details and incidents as recited, but by and large the above is a fair resume of the over-all picture of the factual developments as they occurred.
The facts as they relate to two of the defendants who claim the verdict was against the weight of the evidence will again be dwelt on when that issue is disposed of.
All four defendants were indicted for murder (of which more hereafter), tried and convicted, the jury returning a verdict of murder in the first degree as against the defendants Rios, Cruz and Rodriguez, without a recommendation, resulting in the imposition of the death penalty.
Vega was found guilty of murder in the first degree with a recommendation of life imprisonment at hard labor, and such sentence was accordingly imposed upon him.
All four defendants appeal, each represented by different counsel and each relying upon his separate oral argument and brief. The respective briefs raise a multitude of different points, some of which are common to all, others applicable only to a particular defendant. For the purposes of clarity and convenience, we shall group the objections raised under several broad headings as indicated hereafter.
Was there error in denying the motions for severance?
Prior to the commencement of the trial, the defendants Rios and Rodriguez moved for a severance of trial as to each of them, which motions were denied by the trial court. These defendants, and also the defendant Cruz, who did not make such a motion, assign error in the court's ruling. Rios' motion was predicated on the hypothesis that having fired the fatal shots, he would be prejudiced by the admission in evidence of statements or confessions of his co-defendants, who would naturally seek to magnify Rios' culpability while minimizing their own participation in the crime. It was urged that the prejudicial effect of this evidence could not be successfully overcome by any form of cautionary instructions the court might make to the jury and therefore Rios should be granted a separate trial.
Although he entertained no hope for an acquittal at the hands of the jury, it is asserted Rios was nevertheless entitled to have the jury consider all the evidence for the purpose of determining whether they should recommend life imprisonment, State v. James, 96 N.J.L. 132 (E. & A. 1921); State v. Barth, 114 N.J.L. 112 (E. & A. 1934); State v. Jefferson, 131 N.J.L. 70 (E. & A. 1943), and that the statements of the other defendants would cause the jury to reject Rios' explanation of the manner in which he became involved in this nefarious affair. Counsel argues thusly:
"Had those denials stemmed from an honest purpose to dispute an untruthful statement, no quarrel could here arise. But since it is patently clear that such denials were the product of antagonistic defenses dictated by the awesome necessity which haunted the defendants Cruz and Rodriguez, it was gravely prejudicial to the defendant Rios that they were heard by the same jury which passed upon the fate of all three defendants."
The defendant Rodriguez also sought a severance below, but the argument he offered was quite the reverse of Rios'. Rodriguez claimed that at a joint trial on the theory of conspiracy, Rios' confession, in which he acknowledged his own
guilt and implicated his co-defendants as participants in the robbery, would cast the burden of Rios' guilt upon him. It was said that the confession, which was admitted in evidence at the trial, would not be admissible if the defendants were tried separately.
To be sure, the reasons advanced by Rodriguez for a severance of trial as to him undermined the validity of Rios' motion, for it is difficult to perceive how Rios could have been damaged by the confessions or statements of others, when he had already confessed his complete guilt to the crime and concededly the confession was admissible against him.
The State bristles in reply to these contentions and vigorously contends it needed no assistance from any statements or confessions of the defendants to convict Rios or, indeed, any of the other three defendants. The State claims it had other evidence ample to convict all the defendants and that its case was strong enough to rest on its own foundation. It asserts in its brief, and it was not disputed at oral argument:
"Eight eye witnesses testified to the robbery and shooting; thirteen as to the events on the night before; ten as to the flight and after events and sixteen as to other details. All were produced by the State."
Provision is made for the granting of a severance in a criminal cause in R.R. 3:5-7, which provides that if either party, the State or the defendants, is prejudiced by joinder of more than one defendant in an indictment, the court " in its discretion " may order a severance or "whatever other relief justice requires."
The above rule is but declaratory of practice long settled in this State. See State v. Nixon, 86 N.J.L. 371 (E. & A. 1914); State v. Tonghanni, 96 N.J.L. 63 (Sup. Ct. 1921); State v. Juliano, 103 N.J.L. 663 (E. & A. 1927); State v. Treficanto, 106 N.J.L. 344 (E. & A. 1929); State v. Giampietro, 107 N.J.L. 120 (E. & A. 1930); State v. Dolbow, 117 N.J.L. 560 (E. & A. 1937), appeal dismissed, 301 U.S. 669, 57 S. Ct. 943, 81 L. Ed. 1334 (1937).
It is likewise the rule prevailing among almost all American jurisdictions. See the cases collected in the annotation in 70 A.L.R. 1171-1186, where the rule is stated as follows (at page 1172):
"* * * Any of the defendants who fears that his defense may be prejudiced by a joint trial may apply to the court for a severance, the granting of which is not a matter of right, but rests in the sound discretion of the court, to be exercised solely in the interests of justice."
We are confident that no abuse of discretion was committed in denying the motions for a severance. This is not a case in which each defendant insisted the other defendant did the actual killing. There is no dispute in that regard. Rios is the one who pulled the trigger, and the fundamental facts are not disputed except as to a phase of direction and compulsion sought to be inserted by Rios.
The record indicates quite revealingly that a severance and a separate trial for each of these defendants would have created almost insurmountable problems and would have made such a course incompatible with the due administration of criminal justice.
Moreover, the court in the case sub judice gave ample and complete instructions to the jury to the effect that the statements made by a particular defendant would not be binding upon other defendants and should be so limited. For example, before Vega's statement was introduced into evidence, the court specifically charged:
"A statement of a defendant is only admissible and limited as evidence against the party who made the statement. * * * You are to consider this alleged statement in determining the guilt or innocence of the defendant who made it as it is only evidence against the person who is alleged to have made the statement and it cannot be used as evidence against the other defendants in any way."
And, prior to the introduction of Rios' confession and again at the conclusion of both Rios' and Vega's confessions, the court employed similar language:
"In the consideration of alleged statements of Rios and Vega, as I have cautioned you many times during the trial and now instruct you, the statement made by any defendant is only evidential as to what he says he himself did or said, not against any other defendants as to what he said such other defendant or defendants who didn't make the confession did or said. I think we must by now understand each other on this point."
In fact, the record indicates that on nine distinct occasions the court cautioned and instructed the jury as to the limitation to be placed upon the individual defendants' statements, and it is significant that on no occasion did any of the counsel for the defendants object to the content of the instructions that were given or suggest additional instructions.
The cases cited and relied upon by defendant Rios in his brief do not support his position. In Day v. State, 196 Md. 384, 76 A. 2 d 729 (Ct. App. 1950), a severance was directed where each of the two defendants on trial had made statements accusing the other of having committed the crime, the court noting that it would be practically impossible for the jurors to dismiss from their minds the cross-accusatory statements. As we have already noted, there was no such dispute here. It was conceded by all that Rios had fired the fatal shots.
State v. Leaks, 124 N.J.L. 261 (E. & A. 1940), is factually dissimilar and has no applicability to the case at hand.
Was error committed by the court during the voir dire ?
The court's refusal to exclude accepted jurors from the courtroom during the voir dire.
After the first juror had been accepted and sworn, a motion was addressed to the trial court asking for the removal of such juror and all jurors subsequently sworn from the courtroom during the interrogation of the remaining veniremen.
The basis of the motion was: (1) selected jurors would hear statements made by other prospective jurors which would tend to implant in their minds notions concerning the case to be tried which would not be properly evidential, and (2) the audition of such remarks or statements might establish in the minds of the accepted jurors some prejudice or prejudices against the defendants.
The application was denied and each juror sworn was permitted to occupy a seat in the jury box during the remainder of the voir dire. A large number of jurors were examined and there appears as part of the record an analytical chart prepared by counsel which purports to show the extent to which such jurors already selected were permitted to hear expressions by other members of the panel who were being interrogated as to their qualifications.
Admitting there is no precedent for their position in this jurisdiction, defendants turn to Texas, where, in Gunn v. State, 90 Tex. Cr. R. 209, 234 S.W. 399, 400 (Sup. Ct. 1921), apparently such relief was granted. No other adjudications supporting this disposition have been submitted. Counsel, however, asserts that although we have no decisions dealing with this problem here, there are pronouncements which inferentially support his position. He points to State v. O'Leary, 110 N.J.L. 36 (E. & A. 1933), also a case in which the life of the accused was at stake. There the court stated (at page 39):
"* * * the sequestering of the jury during the continuance of the trial is a 'requisition of absolute law, and is not, in any measure, a matter resting in the discretion of the court.' A rule of procedure rooted in tradition and precedent, devised for the protection alike of society and the accused, should not be set aside unless the reasons which gave it vitality no longer obtain. This is not the case here. The considerations which gave it existence are as cogent and compelling to-day as when it first took form."
The opinion quotes from State v. Hornsby, 8 Rob. 554, 41 Am. Dec. 305 (La. 1844), wherein the rationale of the practice of sequestration of jurors is stated as follows (110 N.J.L., at page 39):
"* * * 'This precaution is necessary to protect the accused from any undue influence which may be exercised upon the members of the jury, even without their knowledge, and cannot be tortured into a disparagement of their integrity. Improper impressions may and will be made upon their minds by artful and designing men, of which they may be perfectly unconscious; neither can they shut their ears to the expression of popular opinion.' To which should be added that society is entitled to protection from improper influences that may be exerted upon jurors in cases of such great moment."
From this it is argued that if in a capital case jurors must be shielded from hearing expressions of popular ill will toward the accused during the trial emanating from outside the courtroom, it is inconsistent to constitute them a "captive audience" to listen to similar expressions during the voir dire. It is said that the admonitions by the court to disregard such remarks are ineffective to extirpate from their memories the objurgations uttered in their presence.
Contrasted to this theory is the admitted fact that no rule of court, no statute, no judicial decision requires, directs or even suggests directly or otherwise the removal of "accepted jurors." The procedure followed in the instant case was in accord with the custom followed here from the time when "memory of man runneth not to the contrary."
The distinction between a jury's hearing expressions made in a courtroom during part of a trial and being subjected to expressions from certain of the public who might well be prejudiced because of the perpetration of a crime of extreme violence is quite marked.
As to any incident which may occur within the courtroom, the court has an opportunity to assess the possible prejudice resulting and is in a position to provide protection for the accused by declaring a mistrial, if necessary, or through its admonitions to the jury.
Obviously, such protection cannot be provided with respect to incidents which occur outside of the courtroom. History is replete with capital cases where the public feeling was at extreme heights. On these occasions a proper endeavor should be made in the application of our ...