On appeal from the Union County Court, Law Division, Criminal.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance in part and reversal in part -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J. Heher, J. (dissenting in part). Jacobs, J., concurring in result.
These three defendants, severally admitting their guilt of the murder charge upon which they were tried, having been convicted of first-degree murder without a recommendation by the jury, appeal the judgment of death rendered against them, contending they were denied a fair trial and were prejudiced by legal error committed requiring a reversal.
Each defendant was represented by separate court-assigned counsel who for their respective clients submitted briefs and argued the cause before us.
The factual situation, although not complicated nor in dispute in many instances, will be fully set forth so its relationship to the legal issues presented can more easily and effectively be visualized.
In the early morning of February 12, 1954, Albert Wise left his home at 234 9th Avenue, Roselle, New Jersey, and drove his Mercury sedan to the home of Alfred Stokes, on Union Street in the City of Elizabeth. Stokes joined him in the car, and together they proceeded to Roselle to the home of Albert Wise's mother, with whom Albert's brother, Harry Wise, was living. There they picked up Harry, and the three of them drove to the Tuscan Dairy in Union Township, arriving there at about 10 A.M. Albert Wise, the leader of the trio, had worked at the dairy some eight years earlier, but the purpose of their visit on this occasion was to "case" the set-up in contemplation of a later robbery.
Their mission completed, they returned to the Wise family home in Roselle, went to Harry's room and then decided to go back and rob the dairy. Shortly thereafter, they again left the house and, with Albert at the wheel, retraced their earlier route to the Tuscan Dairy. On the way, they stopped once to remove the rear license plate from the Mercury. During the ride, Albert gave Harry an old .32 cal. revolver, to Alfred Stokes he gave a new .32 cal. Harrington and Richardson revolver, serial No. 103759, and for himself he kept a nickel-plated .22. He had obtained the guns earlier
that morning from a field in back of his mother's house where he had them hidden.
Thus armed, they arrived at the Tuscan Dairy and parked the Mercury on the southern side of Union Avenue, on the opposite side of the street from the dairy facing the Garden State Parkway. They got out of the car, walked across the street and entered the dairy grounds through a gap in the fence. From there they proceeded to the business office of the dairy, which they entered with revolvers drawn.
Once inside, Albert curtly announced: "This is a hold-up," and ordered the employees who were working there to line up against the wall, hands over their heads. Stokes stood guard over them, and Harry Wise was stationed in the hallway just outside the main office. Albert went directly to the cashier's room, where the safe was located, emptying its contents, some $1,400 and a bunch of keys, into the pockets of his grey tweed coat. He told Stokes to lock the employees he was guarding in a closet and in a bathroom, which Stokes did, taking a wallet containing about $90 in bills and some old coins from one of them, Altman, as he did so. Albert attempted to cut the cable connections to the switchboard, and while this was going on, another employee of the dairy, Jose Gallegos, entered the building looking for his mail. He started to leave but was spotted by Harry Wise, who brought him back into the office and locked him in a closet.
The three defendants then ran out of the office building, Harry in the lead, and were making their way toward the gap in the fence by which they had entered when Sergeant Clinton E. Bond, of the Union Township Police, drove by on Union Avenue in a police patrol car. At the time, Bond was on routine patrol duty but apparently his suspicions were aroused by the sight of the three men running along the fence inside the dairy grounds. He stopped his car momentarily and then drove off, going rapidly down Union Avenue toward the main entrance leading into the Tuscan Dairy grounds. Albert, Harry and Alfred, having observed this movement of the patrol car, abandoned their escape route
and fled north through the dairy grounds, on which several large barns were located. As they rounded the rear of barn No. 1, they encountered Sergeant Bond, who had in the meanwhile driven his patrol car from the main entrance north between the barns.
Sergeant Bond ordered the men to approach the car, and as they did so, he may have noted the revolver which Harry Wise still had in his hand. Bond opened the door of the patrol car, started to get out, but as he did so Harry Wise grabbed him by the rear of the coat and together with Albert began assaulting him. While struggling with them, Bond attempted to draw his revolver from its holster and Stokes, who was standing but three feet away, shot him. Although wounded, Bond continued to struggle with Albert and Harry, and Stokes again fired at close range.
As Sergeant Bond started to sink toward the ground, Harry Wise, using the butt of his revolver as a club, viciously beat him about the face and head. Albert grabbed the sergeant's revolver from its holster and as he did so, the gun discharged, the bullet penetrating the sergeant's trousers but not entering his body. An autopsy subsequently performed disclosed the cause of death to be a "bullet wound in the chest with a right and left hemothorax." Two bullets were found, one in the chest cavity and the other in the sergeant's underclothing. Both bullets were identified as having been fired from the revolver used by Alfred Stokes.
With Bond thus disposed of, Stokes jumped behind the wheel of the police car and Albert and Harry entered from the other side. They drove rapidly out the main entrance of the dairy grounds and stopped opposite the place where Albert's Mercury was parked. There they abandoned the patrol car, entered the Mercury, and with Albert at the wheel, made their get-away.
They went through Irvington into Newark, where they stopped at Albert's girl friend's apartment to get a pair of shoes. They then proceeded to the Pulaski Skyway, crossed
the Hudson River at the Holland Tunnel and drove to the home of Lucille Wilbon in Springfield, Massachusetts, where Albert and Harry's brother, Joseph Wise, was staying.
While on their way to Massachusetts, they stopped at a service station to purchase a tire. Stokes went around the rear of the service station and threw the gun which he had used to kill Sergeant Bond into the woods, after first wiping it clean of fingerprints. It was subsequently recovered by the police, and ballistics experts testified that it was the murder weapon.
The three men arrived at the Wilbon home in Springfield at about 5 P.M. in the evening of February 21, 1954. There they met Joseph Wise and spent the night with him at the Wilbon house. Sometime during the evening, they split up the haul, Harry and Stokes each getting about $400 and Albert retaining the balance. They told Joseph Wise what had happened and gave him the remaining three revolvers, the old .32, the .22 and Sergeant Bond's .38, to dispose of. All of these guns were later recovered by the police.
The following day, the defendants, together with Joseph Wise, went to visit Ethel Wilson, a sister of the Wises, who was also living in Springfield. There they heard a radio broadcast reporting the fatal shooting of Bond. Later that night, the three of them and Joseph Wise and Lucille Wilbon drove to New York. Harry Wise and Stokes got out at Penn Station, and Albert returned to Springfield with Joseph and Lucille.
The next day, Sunday, Albert received a telephone call from Harry, who had returned to Roselle, advising him the police were looking for him. Albert decided to return to New Jersey, and that night he started back in the Mercury. While in Connecticut, his car was observed by a Connecticut state policeman, resulting in his being stopped and taken into custody.
On February 18, 1954 Harry Wise was arrested at his home in Roselle. Stokes, in the meanwhile, had fled to Farmville, Virginia, and was captured there on February 21, 1954.
Was there error in denying the defendants' motion for a change of venue ?
Neither the defendants' argument nor brief correctly outlines the procedural steps taken and the rulings made on the application for a change of venue.
Counsel in his brief, amongst other things, claims: "The published circumstances surrounding the crimes were repulsive to the community's conscience," and "Reports of the murder and subsequent apprehension of the defendants appeared daily in bold headlines in the press." "An editorial in the newspaper with the largest circulation in the county deplored the crime and assumed the guilt of the defendants." "Grand jury resolutions and resolutions of the Township of Union praising those responsible for the apprehension of the defendants and assuming their guilt were published in the press." "Special precautions had to be taken by the county sheriff to handle the spectators at the trial * * *." "The Bond murder had become a household term in Union County."
These are some of the facts and circumstances impelling counsel to place their cause within the pronouncement made in Shepherd v. State of Florida, 341 U.S. 50, 51, 71 S. Ct. 549, 95 L. Ed. 740 (1951), where it was held the trial procedure was "but a legal gesture to register a verdict already dictated by the press and the public opinion which it generated."
The record, however, reveals the following: on April 2, 1954 an application was made before the assignment judge under R.R. 3:6-2(a) and (b) for proofs to be taken for a change in venue. That rule specifically states:
"All applications for change of venue or trial by foreign jury in criminal trials shall be made to the Assignment Judge of the county in which the indictment was found. * * *"
"Whenever, in the opinion of the court, a fair and impartial trial cannot be had in the county in which the indictment was found * * * the court shall order a change of venue."
"The proofs shall be made in such form as the court may direct."
Counsel inquired of the court "what form the proofs shall take upon our application." The court directed: "I am going to set a date for the hearing of the taking of proofs, which will be oral evidence taken by testimony in open court before me Tuesday, April 6, 10 o'clock A.M." This date was subsequently changed to Wednesday, April 7, at the same hour.
Dissatisfied with the dispatch evidenced by the lower court, counsel appealed to the Appellate Division, seeking further time. The motion was denied, the court in effect saying it was a matter of discretion for the assignment judge.
Counsel thereupon appeared again before the assignment judge on April 7, 1954 and bluntly advised the court that under the circumstances "we are not prepared this morning to move unless your Honor in your discretion will give us at least two weeks to put our proof -- to put in our proof. We are not prepared to move this morning." Whereupon the court announced: "No proof being offered, the motion to change the venue is denied." Despite the denial, however, the court then advised counsel: "I will be available -- I will make myself available for the period of two days, if necessary three days, during the Easter vacation period in the event counsel wish to offer proofs at that time. * * * If, however, they wish now to say that even that would be too short a time, I would then make my ruling definite and deny the motion for change of venue." Mr. Mantel: "On behalf of the three defendants, we say that the time is too short." The court then ruled: "The record will also show the court's offer and availability during the Easter recess the days of the 12th, 13th and 14th of April and counsel's attitude and the statement that even that time would be too short and therefore no proof will be offered. Under those circumstances, I think it is just and I so order that the motion for change of venue is denied."
A formal order to this effect was entered. The defendants never availed themselves of the opportunity given by the court to be heard further in the matter.
On May 17, 1954, on a motion for an adjournment or postponement before the trial court, counsel called the court's attention to and marked in evidence a number of resolutions passed by the grand jury of Union County highly laudatory and lavishly praising the officials active in the apprehension and arrest of the defendants and informed the court there were a number of articles in the various newspapers constituting widespread publicity from the date of the murder on February 12 up to the present time. There were also offered two resolutions adopted by the Township of Union. This was the sum and substance of what counsel relied upon for a change of venue as well as a postponement of trial. The principal objection, as stressed by counsel, to the resolutions and newspaper articles was their constant assumption of the guilt of the defendants.
It was urged: "This publicity endangers the right of a fair trial. It encourages a trial by publicity instead of a trial by jury." Counsel then adroitly renewed their application for a change of venue, coupling it with the other relief being sought.
The court, in denying the motion for delay, said:
"It seems to me that every case involving alleged murder is an important news item and of necessity receives widespread publicity. Everything done in open court is naturally a matter of public concern and will receive widespread publicity in connection with a case of this type.
The resolutions of the Grand Jury will not be admissible in evidence during any trial of this case and cannot even be commented upon, and the same is true of the other resolutions that might have been passed.
The resolutions, true, have been published but also other news items involving this particular case. Each prospective juror may be questioned as to whether or not he has formed an opinion as to the guilt or innocence of the defendants. If he states that he has formed an opinion as to the guilt and that he will not decide the case on the evidence, or that his opinion is based on malice or ill-will, that prospective juror may be challenged for cause.
Furthermore, the jury will be instructed to be guided solely by the evidence and the charge of the Court, which will include instructions that the defendants are presumed to be innocent until the State proves them guilty beyond a reasonable doubt.
The jury will be further instructed, as are jurors in other cases of this type, that they are to be guided only by the evidence and not to be influenced by what they may have heard or read with reference to this case.
I have seen no evidence of any inflamed public sentiment against these defendants."
We quote the court in extenso because subsequent developments proved the wisdom of its observations.
There is nothing in the record as we search it giving the slightest justification for counsel's charge in his brief that the defense was never given an opportunity "to demonstrate to the court the full frenzy to which the population of Union County had been whipped up by the crime and the publicity given to it."
We freely subscribe to the basic concepts of fairness as dedicated in Shepherd v. State of Florida, supra, holding newspapers, in the enjoyment of their constitutional right, may not deprive the accused of his right to a fair trial, and requiring the due process clause to be realistically and honestly interpreted and observed. But we find nothing in the proofs submitted in the instant case bringing it within the prohibited orbit.
Our courts, too, in the same spirit of fundamental fairness, have decreed that motions for a change of venue are addressed to the sound discretion of the court. The discretion employed must be neither arbitrary, vague nor fanciful but must be guided by and in consonance with well established principles of law. In re Longo, 124 N.J.L. 176, 181 (E. & A. 1940); La Bell v. Quasdorf, 116 N.J.L. 368, 372 (Sup. Ct. 1936).
The test is whether an impartial jury could be obtained from among the citizens of the county or whether they are so aroused that they would not be qualified to sit as a jury to try the case. The evidence submitted, to be controlling, must be clear and convincing proof that a fair
and impartial trial cannot be had before a jury of the county in which the indictment was found. State v. Overton, 85 N.J.L. 287 (E. & A. 1913); State v. Lynch, 103 N.J.L. 64 (E. & A. 1926); In re Kelsey, 127 N.J.L. 568 (Sup. Ct. 1942); State v. Collins, 2 N.J. 406 (1949); State v. Cooper, 10 N.J. 532 (1952).
Applying the rule firmly established by many adjudications to the facts before us, we reflect again upon the comments of the trial court in which it prophesied that the extent of the influence, if any, of the publications and the documents complained of would be clearly evidenced when the prospective jurors were inquired of as to their qualifications to sit at the trial to determine the guilt or innocence of the accused.
Although the defendants, under R.R. 3:7-2(c), were entitled to exercise 30 peremptory challenges, they actually, by the record, exercised only 17 of such challenges: Albert Wise, 5; Harry Wise and Alfred Stokes 6 each. In addition to their peremptory challenges, they presented 14 challenges for cause, of which 9 were granted.
This, in substance, meant that the 14 jurors finally selected had not been challenged in any manner whatsoever, nor was there an objection made to any one of them as being a trier of the facts in the case to be submitted to them. The general panel of prospective jurors was not exhausted when the defense expressed their complete satisfaction with the jury as it was finally selected. Their conclusion in this regard was again admitted on oral argument.
Under these circumstances, we see no error, nor do we find a failure to comply with the true concept of essential fairness as we conceive it in denying the motion for a change of venue.
Although we find no error in this regard for the reasons already expressed, we must comment with considerable vigor, so there will be no repetition of it, upon the resolutions returned by the grand jury referred to in the motion addressed to the court. There is absolutely no authority in the grand jury to issue or publish such resolutions.
The grand jury is limited to returning indictments or presentments, and when this occurs, they should be returned and controlled as provided for by our rules. Indictments are to be handed up directly to the court, pursuant to R.R. 3:3-8, and presentments are returned to the court under R.R. 3:3-9. The assignment judge may receive the presentment in whole or in part or decline it in toto. In re Camden County Grand Jury, 10 N.J. 23 (1952).
Was there error in refusing an adjournment ?
Intimately related to the motion for a change of venue is the argument contending not enough time was allowed to prepare and present the motion itself.
When the motion was made on April 2, 1954, the assignment judge set April 7 as the date for the submission of proof. Although the defendants say this was insufficient time, admittedly it was adequate for them to appeal without favorable results to the Appellate Division.
They appeared on the last date before the assignment judge without proofs and asked further time. It was granted, the judge advising he would be available for that purpose April 14, which was nearly two weeks from the date of the original application. But it is contended the short date substantially prejudiced the defendants.
Unseemingly and prejudicially unnecessary haste is not conducive to the equitable and proper administration of justice, but the factual situation here existing does not come within these prohibitions.
Twelve days to prepare proofs showing justification for a change of venue seems not too limited, especially when counsel in a summary manner tersely state in open court that the time is too short but do not inform the court in what respect they are unable to comply or what proof they are attempting to secure or how they would be prevented from obtaining it by reason of the time limitation. The record
shows the defendants failed to produce before the assignment judge a single witness, a single affidavit or a scintilla of evidence to substantiate their contention.
Nor is there presently before us any persuasive proof that the time offered to present the proofs on this motion was insufficient. Such matters are within the sound discretion of the trial court and their denial will not lead to a reversal unless it appears the defendants suffered manifest wrong or were prejudiced. State v. Lynch, supra; State v. Juliano, 103 N.J.L. 663 (E. & A. 1927); State v. Zied, 116 N.J.L. 234 (E. & A. 1936).
Our conclusion is further fortified by what transpired more than a month later when on May 17, 1954 counsel renewed their application for a change of venue to the trial court.
The only evidence they offered was a copy of the six resolutions already referred to passed by the grand jury, plus two resolutions adopted by the Township of Union and excerpts from various newspaper articles concerning the crime and its participants. There is nothing demonstrating that these documents and clippings could not have been presented within the time limits originally set by the assignment judge. In fact, the contrary seems well established by the record when it reveals the limited proof upon which counsel intended to rely.
Was there error in refusing to dismiss the indictments ?
Relying upon the dissemination and publication of the same resolutions already referred to, counsel contend the court should have granted a motion to dismiss the indictments because (1) it was impossible to obtain a fair trial; (2) the guilt of the defendants was prejudged prior to the trial; and (3) the law that an indictment is not proof of guilt was nullified.
It seems aphoristic that if the proof submitted would not suffice for a postponement or a change of venue as we have already decided, it could not possibly operate as a complete
exoneration of the charge of murder lodged against the defendants.
Did the court err in reference to its rulings on the testimony of Joseph Wise ?
Joseph Wise, a brother of the two defendants, had been confined to the Union County Jail for approximately 15 weeks as a material witness under substantial bail. He was arrested in Springfield, Massachusetts. When asked about the details of his conversation and the admissions made by the defendants after their arrival in Springfield, he developed a marked lapse of memory. The prosecutor pleaded surprise and advised the court he was about to neutralize the witness' testimony by proving contrary prior utterances.
This process was proceeded with and is justified by State v. D'Adame, 84 N.J.L. 386, 397-398 (E. & A. 1913); State v. Foster, 89 N.J.L. 45, 48 (Sup. Ct. 1916); State v. Cooper, 10 N.J. 532, 558, 562 (1952).
The witness was asked whether he did not recall testifying to a contrary effect before the grand jury, giving the details of his conversation with the three defendants relative to the hold-up and the shooting at the Tuscan Dairy on the morning in question.
His reluctance to give incriminating testimony against his two brothers is understandable, but it should not be permitted to thwart the obligation of the State to prosecute relentlessly those who commit murder within our jurisdiction.
Following the prodding and the refreshing of the witness' memory by the course already referred to, the court recessed for the day. The next day, without the prosecutor's being required to prove any further contradictory statements made by the witness, the witness recanted his previous testimony, attributing his poor previous recollection to the fact that no notice had been given him of the fact he was to testify. Without any ...