On appeal from the Morris County Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J. Heher, J. (concurring in reversal). Mr. Justice Oliphant concurs in this opinion. Heher, Oliphant and Burling, JJ., concurring in result.
The defendant, Ida Pontery, was indicted in statutory form by a Morris County grand jury for the murder of her husband, Dr. Herbert Pontery. After a protracted trial, she was found guilty of manslaughter and sentenced accordingly.
She appeals and submits for consideration alleged trial errors embracing the failure to sequester the jury, errors in the admission and rejection of testimony, alleged compulsion by the trial court of a verdict by a hopelessly deadlocked jury, errors in the charge to the jury, and in denying a new trial after the defendant's daughter had admitted swearing falsely at the trial.
The factual situation varies with the version accepted as there are sharp conflicts in many aspects, but the following is a fair resume from the record.
At the time of the shooting causing Dr. Pontery's death, he had been married to Mrs. Pontery, the defendant, for over 26 years. One child had been born of the marriage, Doris, who was then 23 years of age. Doris had graduated from junior college and secretarial school. She lived at home with her father and mother until they separated.
Mrs. Pontery also had a son, William, by a previous marriage who was then 40 years of age. He was a member of the Port Authority police, married, and lived in his own home.
Dr. and Mrs. Pontery maintained two homes, the main residence in Jersey City, where the doctor had his office, and a summer home at Drakestown, near Budd Lake, New Jersey, where the shooting occurred. The doctor's practice, ethically questionable, was nevertheless financially successful, while Mrs. Pontery is described by her counsel as independently wealthy.
In February 1954 the Ponterys separated and the wife moved into a three-room apartment in Cliffside. Suit for separate maintenance was instituted by her against her husband and temporary alimony allowed. The daughter, Doris, remained with her father.
At the beginning of July 1954 Mrs. Pontery moved into the summer home and remained there alone until August 2, when Monseigneur Monteleone, a close friend of the family, arrived at the summer home to spend his vacation in a bungalow located upon the premises, which was his custom.
A few days thereafter, on August 6, Dr. Pontery, Doris and William arrived at the summer home. They entered the kitchen, Doris carrying a package of food.
Irreconcilable conflict in the testimony of the witnesses beclouds the events from this point on until the shooting on the next day. The son and the daughter testified on behalf of the State that when they entered the house, Doris started to put some food into the refrigerator. Their mother entered
the kitchen and told Doris to stop, calling her a "dirty little bitch" and striking her. Dr. Pontery and William intervened and Mrs. Pontery went into another room and made a telephone call to a lawyer. Later she returned and a truce was declared. The family joined in dinner that evening and apparently no further outward manifestations of hostility were then exhibited, but the next day did not conclude so fortunately.
According to Doris and William, the family had breakfast together the next morning. The doctor and daughter left to do some errands and William visited friends living nearby. They returned at about noon and Doris prepared frankfurters for a picnic lunch in the yard. Doris went outside and the doctor emerged from the house carrying an electric saw which had been given him by his wife some time before. The wife angrily inquired as to what he was going to do with it and upon the doctor's reply that he was going to put it in the tool shed, she remonstrated with him, took the saw away and walked into the house. The doctor followed her and stood in the kitchen talking to the Monseigneur, who was stirring soup at the stove. William, who was outside, entered the house a few moments later and Doris followed him in. Mrs. Pontery, it is said, came into the kitchen from the direction of her bedroom, pointed a revolver at the doctor and fired. The bullet struck him near his left arm-pit and he fell to the floor and died minutes later.
William, testifying for the State, said he and his sister were in the kitchen at the time of the shooting. He yelled to his sister to run, that their mother had a gun. He said he ran out of the house and then to the home of a nearby neighbor named Young, informed him what had happened and asked that the police be called.
Doris testified she ran out of the house ahead of her brother, toward the station wagon, which was parked in the yard, with the intention of escaping. She said her mother emerged yelling from the house and started shooting at her. She dodged behind a parked car and Mr. Young, the neighbor, came up and disarmed her mother. She then returned
to the house and discovered her father was dead. She ran out and beat her mother over the head with her fists, inflicting a scalp wound.
Mrs. Pontery's version as to what occurred was otherwise. She testified that when Dr. Pontery, William and Doris entered the house on August 6, her son William announced, "Hitler is dead. We are here to stay." She said she went into her bedroom to call her lawyer. When she returned, Doris was putting a melon in the refrigerator and she asked her not to do so because it would taint the other food in the refrigerator. Doris became angry and proceeded to strike her about the head and side of the neck. She pleaded unsuccessfully with her son to stop her but he stood by and did nothing. She ran into the bedroom and cried.
Her view of this first incident was supported by Monseigneur Monteleone, who, although not present, testified by deposition that when he came into the house later on he saw Mrs. Pontery with a mark on her neck and a lump on her head and she told him, in the presence of her son and daughter, that Doris had beat her. And immediately after her arrest, while she was in a hysterical state, she related to police officers a story of having been beaten by her children. A doctor who examined her following her arrest found two large bruises on Mrs. Pontery's neck, and smaller bruises and painful areas elsewhere on her body, all of which he diagnosed as traumatic injuries.
According to Mrs. Pontery, the family watched television for a while that evening and then the Monseigneur returned to his bungalow with Dr. Pontery. The wife said she had a conversation in the living room with her son William, who complained to her about his lot in life, claiming the mother had always favored Doris, and demanded a large sum of money from her.
On the following day, she arose early and cooked breakfast and was joined by her husband for a cup of coffee, although he would not drink what she had prepared, preferring to make his own. Dr. Pontery washed the station wagon and he, Doris and William left.
Later that morning Dr. Pontery came in and asked her where the electric saw was and she took him downstairs and showed him its location. She then went upstairs and Dr. Pontery carried the saw and a sander outside.
She spent the rest of the morning doing housework and preparing a chicken which she intended to serve to the entire family. When dinner was ready, she went outside to call them and upon seeing the tools in the station wagon, she took them out and carried them into the house.
Mrs. Pontery said she went outside again to call them and was standing on the porch when the son came up and started to beat her violently and threw her into the kitchen. Her husband entered and started to yell at her and beat her about the head and chest. She said the Monseigneur, who was also in the kitchen, intervened and she ran into the bedroom. This was confirmed by the Monseigneur, who says he saw the son striking Mrs. Pontery on the porch, after which either the son or Dr. Pontery picked Mrs. Pontery up by the neck and threw her into the kitchen, kicking her in the back as he did so. The doctor followed her in and began beating her in the kitchen. The Monseigneur testified he grabbed his arm and told him to let her alone but the doctor said he was going to give her a good beating, "I am going to finish her." Mrs. Pontery, according to his version, broke away and ran into the bedroom.
She said she was desperate and cornered and wanted something to protect herself with. She remembered an old revolver in Dr. Pontery's dresser drawer in his bedroom, went there, got the gun and emerged into the dining room. It was her intention, she said, only to protect herself and to scare the doctor and the children. She insisted that when she came into the dining room the doctor grabbed her hands and a struggle ensued which carried them into the kitchen; while they were wrestling in the kitchen, the revolver accidentally discharged, the shot ricocheting off the ceiling. The struggle continued and a second shot went off, killing her husband.
She further testified that when her husband slumped to the floor, William yelled to Doris to run to the station wagon and get his gun. Both Doris and William ran out and when Mrs. Pontery emerged from the house, Doris fired several shots at her but missed. Later, after Mr. Young had disarmed her, Doris emerged from the house and hit her over the head with a gun, knocking her down.
The Monseigneur was 78 years of age, in bad health, and too ill to testify at the trial and his testimony was taken, as already indicated, by deposition.
Following the rendition of the verdict by the jury and on the day set for sentence, Doris, the daughter, appeared in court and allegedly confessed to having committed perjury during the trial. She said that immediately before the shooting, her brother had in fact beat her mother, severely enough to cause her to fall to the floor, and that she had helped her mother to her feet before she ran into the house. She also testified that after the shooting her brother told her not to tell the police he had beat up his mother and in return he would not tell them that she had fired at their mother with his revolver, she having denied at the trial that she fired any shots at her mother. On this recantation of testimony, she still denied having seen her father strike her mother on the day in question, and she also denied having hit her mother on the previous day.
It was upon this factual development that a motion was made for a new trial on the basis of newly discovered evidence. The motion was denied, of which more hereafter.
FAILURE TO SEQUESTER THE JURY
After the jury had been selected, the prosecutor announced in open court that the State was not demanding the death penalty. The trial judge thereupon suggested it might not be necessary to sequester the jury under those circumstances and asked the defendant's view. Counsel for the defendant at the trial, among other things, said, so long as the State was not seeking the death penalty, "I see no reason why the jury
should be sequestered," and justice could be done without it. The court then queried the prosecutor on his view and he insisted the jury be sequestered. The court implied it would accede to the prosecutor's suggestion. Counsel for the defendant then again called the court's attention to the fact that "this may be a long and protracted trial and the sequestration of the jury would be expensive * * *" and he "urged" the court to exercise its discretion against sequestration. The court refused to do so in face of the expression by the prosecutor to the contrary.
In his formal opening to the jury, the prosecutor again stated: "The State is not demanding the death penalty in this case."
At the close of the testimony on the first day, the trial judge announced he had consulted with the attorneys on both sides and "they have both indicated that they have no objection if I was to permit you ladies and gentlemen to go home rather than be sequestered every day and every night. * * * So that you ladies and gentlemen can retire to your homes each night and come back here in the morning." He also warned them against discussing the case with anyone and gave other protective instructions which are not in issue.
The defendant, on appeal being represented by another attorney, submits that the court erred in failing to have the jury sequestered. In substance, she asserts this was a capital case and the defendant had a fundamental right to have the jury sequestered. State v. Cucuel, 31 N.J.L. 249 (Sup. Ct. 1865); State v. O'Leary, 110 N.J.L. 36 (E. & A. 1933). Although the procedure followed was not objected to by the defendant but, indeed, was the result of defendant's solicitation and request over the prosecutor's initial objections, it is insisted we should take notice of it as plain error under R.R. 1:5-1(a).
The first inquiry is whether or not this remained a capital case in face of the fact that the prosecution announced in open court it was not seeking the death penalty.
Relying upon the O'Leary case, supra, the defendant says the waiver of the death penalty by the prosecution was not
binding upon the jury, that the indictment alone controls in determining whether it is a capital ...