On appeal from the Mercer County Court, Law Division.
For affirmance in part -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld and Burling. For reversal -- Justices Heher, Jacobs and Weintraub. The opinion of the court was delivered by Wachenfeld, J. Weintraub, J. (dissenting). Mr. Justice Heher and Mr. Justice Jacobs have authorized me to state that they join in this opinion.
The legality of a conviction for perjury is challenged on this appeal by Dr. J. Minor Sullivan, III, defendant-appellant, hereinafter referred to as the defendant.
In 1948 William Horner and his reputed wife owned and operated a second-hand furniture store in Trenton. On the morning of January 27 he was brutally beaten to death with a blunt instrument and she was seriously injured by a vicious assault.
It is wholly unnecessary to relate in detail the subsequent factual developments except to say that by reason of diligent police investigation six suspects were soon apprehended and taken into custody.
Dr. Sullivan is a general medical practitioner residing in Trenton. He was asked by the Trenton police to witness the signing of confessions by five of the six men charged with murder. After his arrival at police headquarters defendant generally interrogated each suspect in what has since become known in legal annals as the "Trenton Six" case. His
principal inquiries concerned the treatment they had received while in the custody of the police.
A Dr. George Corio was also summoned to act as an impartial witness. Both doctors gave a brief but fairly thorough physical examination to each of the accused. None of the murder defendants indicated he had been maltreated in any fashion and the doctors found no evidence of physical abuse.
Thereafter, Sullivan was queried by the police as to his findings and conclusions, and the questions and answers were recorded in a notarized statement signed by him.
In June of 1948 the murder indictment was brought to trial. It was a long, complicated and difficult case lasting 44 days, and during the course of it Sullivan was called upon to testify on two occasions. He first appeared at a preliminary hearing before the trial judge on the admissibility of the confessions, and later he again testified before the jury as the trial proceeded. All five confessions whose signing Sullivan had witnessed were admitted into evidence, and the six murder defendants were convicted by a jury and subsequently sentenced to death.
The judgment so rendered was reversed by this court, State v. Cooper, 2 N.J. 540 (1949), on several grounds, including the failure of the jury verdict of guilty to designate the degree of murder in accordance with statutory requirements, and we returned the case for a new trial. To guide the lower court at the second trial, we discussed the admissibility of the aforementioned confessions and cautioned that "[i]n the enforcement of the constitutional guaranty of due process, the inquiry is whether there has been observance of 'that fundamental fairness essential to the very concept of justice. * * *'" and that "a confession induced by physical or moral compulsion, whatever its nature, has no evidential efficacy." Contrary to Sullivan's present contentions, we did not determine that in fact the subject confessions had been obtained without due process.
As a result of this reversal, a second murder trial ensued. Sullivan again testified at the preliminary inquiry as to
the admissibility of the confessions and also before the jury itself.
Although Sullivan's testimony grew increasingly unfavorable to the State, the prosecution made no attempt to discard him as a witness until well along in the cross-examination before the jury, when it attempted to plead surprise and thereafter endeavored to neutralize his testimony.
The second trial resulted in the acquittal of four defendants; the remaining two, Collis English and Ralph Cooper, were found guilty of murder in the first degree with a recommendation by the jury of life imprisonment.
We again reversed for numerous trial errors, recited in the opinion in State v. Cooper, 10 N.J. 532 (1952). The later developments and ultimate disposition of the "Trenton Six" case are not material and have no bearing upon the issues presented by this appeal.
After the second murder trial, two indictments were returned against the defendant. They are essentially the same except that one charges perjury, the other the crime of false swearing. The State's theory is that after the first trial Sullivan directed himself toward securing freedom for the murder defendants and to this end willfully falsified his testimony at the second trial in attempting to establish that the defendants were incompetent at the time they had executed their respective confessions. It is said the testimony of Dr. Sullivan at the first trial was true but that he perjured himself, in the manner indicated in the indictments, at the second trial.
Each indictment contains eight counts reciting verbatim portions of the defendant's testimony at the second murder trial of Ralph Cooper, Collis English, McKinley Forrest, John MacKenzie, James H. Thorpe and Horace Wilson regarding his examinations and observations of these defendants and his conclusions as to their mental and physical condition and the cause thereof.
The perjury indictment alleges that Sullivan "then and there did commit willful and corrupt perjury in manner and form aforesaid, contrary to the provisions of R.S.
2:157-1, and against the peace of this State and the government and dignity of the same."
By court order, the indictments were consolidated and tried together. R.R. 3:5-6.
The perjury indictment was attacked by the defendant, who alleged it was predicated upon expressions of professional opinion and belief and failed to contain allegations necessary for charging a crime and was invalid for this and other reasons. The indictment was sustained in 25 N.J. Super. 484 (App. Div. 1953), certification denied 13 N.J. 289 (1953), certiorari denied 347 U.S. 903, 74 S. Ct. 428, 98 L. Ed. 1063 (1954).
The false swearing indictment was likewise subjected to appellate treatment, 33 N.J. Super. 138 (App. Div. 1954).
To prove the charges made in the indictments, the State introduced transcripts of defendant's testimony at the first and second murder trials. It put upon the stand Dr. Corio and various police officials who were present at the time Sullivan conducted his physical examinations, and produced the question-and-answer statement signed by the defendant in 1948.
The defense was a complete denial and the defendant testified at length. He was supported by character witnesses who testified as to his good repute for honesty and veracity.
By agreement, the case was tried without a jury, and at the conclusion of all of the testimony Judge Morris, who presided, made general and special findings convicting the defendant on seven of the eight counts in the perjury indictment.
The record indicates the State moved for sentence only on the perjury indictment and that no further action was taken upon the false swearing indictment. The latter was apparently disposed of by the trial judge in his remark that the findings made on the perjury indictment were also dispositive of the false swearing indictment. In any event, the indictment charging false swearing is not at issue before us.
The defendant was sentenced to two years on probation and fined $1,500.
The defendant urges the findings of the court and the judgment of conviction are contrary to the weight of the evidence and are the result of passion, prejudice and mistake engendered by inflammatory matter, and that not only did the State fail to prove Dr. Sullivan corruptly and willfully testified to opinions which he did not hold, but further, the State failed to prove by reliable and competent evidence that the opinions expressed were in fact untrue or invalid.
Perjury was defined by early common law "* * * as the willful assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether in open court, in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding." 41 Am. Jur., Perjury, § 2, p. 4.
The offense is now controlled by statute in most jurisdictions, but although these vary to some degree in language, basically there is little difference from the common law conception. In general, the state legislatures have defined perjury as willful and corrupt false swearing or affirming, under an oath lawfully administered in the course of a judicial or quasi -judicial proceeding, to some matter material to the issue. State v. Sullivan, 25 N.J. Super. 484 (App. Div. 1953), citing 41 Am. Jur., supra, § 2, p. 4. See N.J.S. 2 A:131-1 et seq., formerly R.S. 2:157-1 et seq.
As was determined in State v. Sullivan, supra, there is a distinction between an honest but erroneous statement of opinion and a false declaration of fact. The latter is held to be a matter of perjury. 41 Am. Jur., supra, § 6, p. 6; 70 C.J.S., Perjury, § 5, p. 462.
Similarly, however, where the existence or nonexistence of an opinion or belief is in itself a material matter of fact, a false statement as to such may constitute the offense. 41 Am. Jur., supra, § 6, p. 6; 70 C.J.S., supra, § 5, p. 462.
The defendant's position here is that it is practically impossible to convict a doctor of perjury. Apart from
epistemological problems concerning the imperfections of the senses and the consequent relativity of all knowledge, it is urged Sullivan testified only as to medical opinions and beliefs which, no matter how erroneous, cannot attaint him in the absence of conclusive proof that they were not actually entertained. Defendant says the only direct or reliable proof on the issues raised by the present indictment would be his admission or confession almost tantamount to guilt.
Additionally, it is said that if contradictions exist between defendant's statements at the two murder trials, the State failed in its obligation to demonstrate the second testimony was false rather than the first.
These contentions make it important to recognize that much of Sullivan's testimony dealt with findings resulting from his examinations of the accused prisoners. To this extent, he was describing physical manifestations, exclusive of their supposed cause or psychic effect. The existence of the symptoms to which he testified is fundamentally a matter of fact, readily subject to independent verification or disproof. Most of the alleged findings were the direct product of observation and not the result of scientific tests or research. The police officers in attendance as well as Dr. Corio are, therefore, qualified to refute the truthfulness of the defendant's testimony in this respect because they had the same opportunities for observation. See Priest v. Poleshuck, 15 N.J. 557, 562 (1954); Koccis v. State, 56 N.J.L. 44 (Sup. Ct. 1893); 32 C.J.S., Evidence, § 467, p. 107.
Admittedly, Dr. Sullivan also gave evidence in the form of medical opinions based on his physical findings. We now refer to his own diagnosis of the individual prisoners as totally divorced from his answers to purely hypothetical questions. Vide, Beam v. Kent, 3 N.J. 210, 215 (1949). It is argued these opinions can be proved false only by direct evidence in the form of an admission, but we cannot agree. The evidence presented was more than sufficient to satisfy the rule as to quantum of proof which requires at least the testimony of one witness supported by strong corroborating
circumstances to obtain a conviction. State v. Caporale, 16 N.J. 373 (1954); State v. Taylor, 5 N.J. 474 (1950); Zabriskie v. State, 43 N.J.L. 640 (E. & A. 1881); State v. Bulach, 10 N.J. Super. 107 (App. Div. 1950); State v. Ellison, 114 N.J.L. 237 (Sup. Ct. 1935); State v. Lupton, 102 N.J.L. 530 (Sup. Ct. 1926); Dodge v. State, 24 N.J.L. 455 (Sup. Ct. 1854).
To hold that a "confession" by a doctor is an indispensable prerequisite to proving he willfully and corruptly gave false opinion testimony would place an intolerable and impossible burden on the State in its prosecution and would subject the entire judicial process, both civil and criminal, to the spectre of fraudulent testimony freely given with complete immunity and without fear of subsequent prosecution. We hold high regard for the competence and integrity of the medical profession, but we must reluctantly recognize that, like any other profession, it occasionally harbors members whose ethics are not compatible with the lofty and established standards of the group.
The present indictment was sustained in the Appellate Division, where it was said:
"The defendant's statements as to a nervous, drugged, amnestic or suggestive state of mind in the several murder suspects, may constitute perjurious testimony for the reason that it is alleged that he well knew the absence of their factual existence when he swore to them in his testimony and that he did not hold a firm belief in their existence under the circumstances of the case. Under either or both circumstances, an indictment may be warranted." (Emphasis supplied.) State v. Sullivan, 25 N.J. Super. 484, 492 (1953).
The strength of the law will continue only as long as it remains intimately acquainted with reality. It is not an abstract science. Considered in vacuo, the defendant's opinions and beliefs might possibly be unimpeachable, but we are here concerned with actualities as reflected in "the circumstances of the case." The record convinces us that these selfsame circumstances as intertwined in all of the evidence clearly and logically point to the defendant's guilt in the respects hereinafter delineated.
In general, Sullivan's statements at the second trial varied violently from those he delivered at the first. Indubitably realizing he had been called upon because of his race and special qualifications as a physician to verify the good faith of the accused's confessions and their voluntariness, he manifested in his sworn statement to the police and in the testimony he first gave that there was nothing seriously amiss physically or mentally with the murder defendants which would disqualify the confessions they had made.
On his subsequent appearance three years later, his answers were radically different. Then, in effect, he stated all of the murder defendants, for one reason or another, were totally incapable of understanding the serious consequences of their confessional act, and that their physical and mental conditions were such as to negative the voluntariness of their statements.
Defendant asserts a doctor is entitled to change his professional views, and we cannot quarrel with this academic observation. We, however, are concerned with the actualities of judicial proceedings, and unless such change is upon valid grounds and for good reason, there is a justifiable inference that its motivation is corrupt. When witnesses for the State directly controvert the existence of the facts upon which the new opinions are allegedly predicated, this inference may, under the circumstances, ripen into a reflection of guilt sufficient to be considered by a jury or a judge.
True, Sullivan's interrogation at the second trial was far more vigorous and searching with regard to the mental state of the respective murder defendants than at the first trial. This may possibly, as the defendant contends, have been induced by our own opinion, at 2 N.J. 540, where the effect of moral compulsion as a factor invalidating confessions under the due process clause was discussed.
But there was some limited cross-examination in this respect at the first trial, and on the second murder trial Sullivan was advised on several occasions of his right to refuse to answer questions relating to psychology if he deemed himself unqualified. The defendant took none of the shelter offered by the court and during the perjury trial consistently
affirmed his intention to abide by his previous testimony "if that is the record."
In the defendant's presentation the different counts of the indictment are separately reviewed, and for the sake of clarity we shall do likewise in our disposition here.
The first count of the indictment charges that Sullivan perjured himself by testifying as follows:
"Q. And I ask you specifically was his condition such, that you, a trained medical observer, you felt from your experience that he was under the influence of drugs at that time? A. Yes, he appeared to be so.
Q. Doctor, as a result of having your previous testimony read to you for the purpose of refreshing your recollection, and directing your attention to the condition of Ralph Cooper as a result of your examination of February 10th, or the early morning hours of the 11th, could you now state as to whether his condition was not caused by drugs? A. From the examination and observation of drowsiness and laziness as stated in the previous testimony, and redness of the eyes which indicated to me, suggested to me to ask the man if he had been smoking marijuanas, I say it could have been -- it was caused by marijuanas."
This testimony considered in the context of the whole record does not satisfy us beyond a reasonable doubt that Sullivan committed perjury. With respect to the symptoms set forth, defendant consistently testified throughout both murder trials that Cooper was drowsy and lazy and showed congestion and inflammation of the eyes. There was no substantial deviation from his initial testimony at the first trial.
It is evident that Sullivan honestly thought there was at least a strong possibility Cooper had been smoking marijuana. During his examination of the suspects at police headquarters, Sullivan asked Cooper whether he had recently used "reefers." On cross-examination at the first trial, Sullivan stated: "Well, he looked to me like he had been smoking reefers." In response to the question, "Cooper you saw in such a
condition that you thought he had been taking drugs; is that right?," Sullivan testified, "I guess -- yes."
Defendant's testimony at the second trial was compatible and consistent with his utterances at the first trial. There is no material conflict, and we find no evidence in the record sufficient to support a conviction on this count.
Giving defendant the benefit of all favorable inferences and a microscopic scrutiny of the record, we cannot sustain his conviction upon Counts 3, 7 and 8 of the indictment. These set forth portions of defendant's testimony at the second trial relating to the physical and mental condition of McKinley Forrest.
In his written statement prepared in 1948, Dr. Sullivan said Forrest "was essentially negative other than he appeared slightly excited or nervous." During the first murder trial, defendant upgraded this appraisal to "moderately excited." "Moderate" was described as a stage of excitement between "slight" and "maniacal." It was asserted this middle stage of emotional disturbance manifested itself in a tremor of the hands and Forrest's difficulty in removing his clothes, which necessitated assistance.
At the second trial, Dr. Sullivan testified that at the time of his physical examination Forrest had been in a stage of hysteria, "was so afraid he couldn't tell just what was going on," and that "it was impossible" for him to remove his clothes. These matters were stated as conclusions.
Although this testimony created an impression of mental disability which was absent at the first trial, in light of the entire record we do not find the evidence warrants a conclusion that the State adequately demonstrated the change was animated by a corrupt motive.
It may well be said a shift in emphasis rather than substance took place. Perhaps this is explainable, at least in part, by the fact that at the second trial it was disclosed to Dr. Sullivan that shortly before his physical examination of
McKinley Forrest the subject had suffered a complete nervous breakdown necessitating the services of a physician who administered sodium amytal. In reply to inquiries by counsel for the murder defendants, Dr. Sullivan attributed his change in diagnosis to this previous history of mental unbalance of which he was unaware at the first trial.
Detective Henry W. Miller, called for the State at the perjury trial, confirmed the symptom of trembling and stated Forrest stuttered and had to be assisted in removing a sweater. Dr. Corio also stated Forrest was excited, although he denied the prisoner needed help in undressing.
In light of these developments, we cannot say Sullivan's testimony with relation to Forrest diverged so substantially from the facts and his previous statements as to warrant a conclusive imputation of calculated falsehood.
However, the same meticulous perusal of the record and concern for defendant's rights which induced us to reverse the conviction on Counts 1, 3, 7 and 8 of the perjury indictment firmly convince us beyond a moral certainty of the guilt of Sullivan with respect to Counts 2, 4 and 6. Count 5 was disposed of by the trial judge's acquittal.
The second and sixth counts of the indictment charge Sullivan perjured himself at the second trial in testifying concerning the physical condition and mental state of Collis English at the time he made his confession. In substance, these counts allege that Sullivan lied when he declared English to be a "little mumbly," a "little confused," "highly nervous" and in a psychoneurotic condition attributable to mental pressure.
Both examining doctors found that English had a serious heart murmur. At the first trial, this was the only symptom to which Dr. Sullivan testified. On cross-examination, he stated English "talked freely" and that he could recall only one prisoner being nervous, McKinley Forrest.
On preliminary examination at the second murder trial, Sullivan's initial answers were totally consistent with his
testimony at the first trial. He said his findings with regard to English were essentially negative, except for the cardiac condition, and indicated that among Cooper, Thorpe and English, only Cooper had displayed signs of a mental disturbance.
When the jury was called in, Sullivan suddenly underwent a complete transformation. In place of being a witness for the State, he was now a potent ally of the defense. English, according to this testimony, was a "psychoneurotic" whose condition had been occasioned by mental stress, leaving only the inference that questionable or unlawful police methods were the causative factor. To eliminate any doubt as to the deplorable mental condition of English, Sullivan testified he was extremely subject to suggestion, not reliable, and "under mental pressure" would be deprived of his free will. From one who "talked freely" and had no symptoms other than a "cardiac deficiency * * * well compensated," English was now, according to Sullivan's testimony, "confused," not very reliable, and "highly suggestible" as "the result of pressure" and was incompetent to execute a confession.
Additionally, Sullivan's notarized statement to the police made no reference to any of the symptoms which on the second trial he suddenly claimed to have discovered. His conclusions at the second trial were a far cry from his original findings of "essentially negative."
The detectives who appeared for the State against Dr. Sullivan and who had enjoyed frequent opportunities to observe English testified he was completely oriented, responsive and calm. They, along with Dr. Corio, denied that English mumbled or appeared confused and "highly nervous." Dr. Corio refuted the existence of a "psychoneurosis."
In our opinion, it was fully established that Dr. Sullivan, as charged in these counts, gave perjured testimony and that the totality of the circumstances proves beyond a moral certainty the evidence he gave was false, corrupt and deliberately contrived to mislead the jury.
The conviction on the second and sixth counts of the indictment is affirmed.
Count 4 of the indictment contains Sullivan's allegedly perjurious testimony respecting his findings from the physical examination of MacKenzie.
In essence, it is charged that defendant falsely testified MacKenzie was nervous and moderately excited, "that he appeared to be in a controlled state, as if having had a drug," and that "I don't know of any other situation that might put a person in a controlled state other than the hypnosis." Read as a whole, defendant's assertions ...