For reversal -- Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For affirmance -- Chief Justice Weintraub. The opinion of the court was delivered by Francis, J. Weintraub, C.J. (dissenting). Wachenfeld, J., concurring in result.
Defendant Alfred Wolak was convicted of murder in the first degree and, pursuant to the recommendation of the jury, was sentenced to life imprisonment. On this appeal he seeks a reversal of the conviction, charging that the trial court erred (1) in instructing the jury with respect to the nature of the consideration that it could give to evidence of previous convictions of crime, and (2) in admitting into evidence a "gruesome" photograph of the deceased. He urges also that he was denied due process because of inadequate representation by court-assigned counsel.
The homicide out of which this trial arose occurred on Sunday, August 12, 1956, at approximately 1:45 P.M., in Pip's Tavern at 35 1/2 Bergen Street, Passaic, New Jersey. The victim was Stanley "Pip" Kalita, husband of Mildred Kalita, the owner of the establishment. He was shot by Wolak, who was 21 years of age at the time.
The record reveals that sometime in March of 1956 Wolak began to patronize Pip's Tavern. Thereafter, he came in once or twice a week and became well known to the Kalitas. On occasions he was permitted to buy drinks on credit and once, in April 1956, Mildred Kalita loaned him $25.
On the evening of April 22, 1956 Wolak was at the tavern drinking with his friend, Harry Ladischeff. They became involved in an argument which eventuated in a fist fight. Mildred Kalita, who was in charge of the place at the time, came out from behind the bar and told them to stop fighting. They did so, but resumed their scuffling as soon as she returned to her place at the bar. She went over to them again and asked them to leave, whereupon Wolak pushed her to the floor. She got up and once more demanded that they leave. In response, Wolak slapped her face. She then tried to enter the telephone booth to call the police but they prevented her from doing so and still refused to leave. She insisted that they at least allow her to call her husband, and they told her to go ahead as they were not afraid of him. She called her husband immediately and he said he would be right down. When she left the booth, Wolak continued abusing her and again refused to leave. He demanded drinks for himself and Ladischeff, and when she would not comply he began pushing her. While he was thus occupied, Stanley Kalita appeared and punched Wolak in the face. Wolak fell to the floor and remained there. Ladischeff then attacked Kalita and while this altercation was in progress, the police arrived. They picked up Wolak from the floor and as he was led away, he turned to Kalita and said: "I will get you for this." Mrs. Kalita refused to sign a complaint against him, but he was fined $55 and sentenced to ten days in the county jail. He was released after two days.
Several weeks later Wolak telephoned Mildred Kalita and apologized for his behavior. She accepted the apology but told him not to come to the tavern any more. However, he did return there on approximately three occasions prior to August 12, the day of the shooting. On one of these visits he arrived in an extreme state of intoxication, spoke to no one, and passed out at the bar.
One night in mid-May 1956 the Kalitas were in Garrone's restaurant in Passaic. Wolak and Ladischeff came in and went over to them. Wolak apologized to Stanley Kalita
for the trouble he had caused, and said that if someone had slapped his, Wolak's, wife, he would have retaliated as Kalita had. But Mildred Kalita testified that a few minutes later Wolak said to Kalita, "I didn't like the idea of you having me arrested," and "So what would you do if I went home and got my gun and held you up some night? As a matter of fact, I think I will go home again and get my gun and blow your brains out." Kalita tried to placate him, pointing out that his wife had not pressed charges, but Wolak said that he could not forget what had happened. Kalita offered to buy Wolak a drink, and the group repaired to a tavern across the street. The Kalitas left after one drink.
On July 22, 1956 Wolak and Ladischeff went to Pip's Tavern at about 2 P.M. Both Kalitas were present. Wolak, apparently sober, reproached Kalita for having hit him, and tried to get him to go outside and fight. He was heard to say, "I can't forget what you done. I will get you for this. It will take me a while, but I will get you for this." Kalita passed off these remarks, and there was no further incident.
On Sunday, August 12, 1956, Wolak came into Pip's Tavern alone at approximately 1:40 P.M. The Kalitas had just opened for business, and were seated at the extreme end of the bar near the entrance door. Stanley Kalita was drinking a bottle of beer. There were four or five customers at the bar, and a part-time bartender was serving drinks. When Wolak entered, he passed the Kalitas without speaking to them, and went to the other end of the bar, sat on a stool, and ordered whiskey. As soon as he sat down, he drew a .32 caliber revolver from his pocket and placed it before him on the bar. Mildred Kalita saw him do this and warned her husband. Wolak then called to Kalita, "Pip, come over here." Kalita replied, "If you want to talk to me, put that gun away and come over to me," or words to that effect. Wolak then picked up the revolver in his right hand, rose to his feet, and pointed the weapon at Kalita. He repeated his summons and Kalita, standing
up, again told him to put the gun away. When Wolak commanded Kalita for the third time to come over, the latter grabbed an empty beer bottle from the bar and threw it at Wolak. Simultaneously, Wolak fired the revolver once and wounded Kalita, who was in the process of crouching below the level of the bar. The bullet entered Kalita's upper left arm and continued on an upward course, perforating both lungs and the aortal arch. Kalita made his way outside the tavern to the corner of Market and Bergen streets, where he collapsed and died.
Immediately after the shooting, Wolak walked out of the tavern and left the area, heading up Bergen Street. The police were notified of the homicide, and that afternoon they traced Wolak to the Hollywood Tavern at 170 Passaic Street. Police officers and detectives drove there to apprehend him and, as they approached the tavern on foot, Wolak appeared in the doorway and drew his revolver. He was told to drop it, but he fired on the policemen and took cover. After an exchange of shots, with Wolak shooting through the open door of the tavern, he was wounded very slightly and fell to the floor. Police Captain Bingham went in after him, kicked the gun from his hand, and started to carry him outside. Upon being told that it was all over, Wolak replied, "All over? I should have knocked off four or five of you bastards and then it would be all over." He continued to swear at the police officers during a search of his person which disclosed a box of .32-caliber bullets. While they were awaiting an ambulance, Wolak attempted to pull away, and was ordered handcuffed. He was taken to the hospital for treatment, and about an hour later to the Detective Bureau of Police Headquarters, where he was interrogated. In response to a question as to why he had shot Kalita, Wolak replied that he had had it coming. And according to one of the officers, when asked why he carried the gun into the tavern, he replied, "What are you looking for, premeditation?"
The principal defenses were that the killing was not premeditated and that Wolak was insane at the time.
In presenting these contentions defense counsel brought out much of Wolak's personal history on direct examination. Wolak did not complete grammar school but went from the eighth grade to vocational school at the age of 14. In 1949, when he was 14 years of age, he "was sent" to the Jamesburg State Home for Boys for breaking and entering into a gasoline station. He remained there for nine months, and was released in 1950. In 1951, at 16, he "was sent" to Annandale Reformatory for breaking and entering into a cleaning establishment. He escaped from there and was recaptured and "sentenced" to Bordentown Reformatory. He was released in May 1953, at 18 years of age.
In August 1954 Wolak was in a serious automobile accident, suffering a broken neck and a brain concussion. The accident was the culmination of the pursuit by the police of a stolen car in which he was a passenger; the driver, to avoid capture, had been travelling 85 to 90 miles per hour. On August 19, 1954 Wolak was taken to the Valley Hospital in Ridgewood, but he was transferred to Bergen Pines Hospital where he was not only a patient but also was being held on a charge of breaking and entering. On August 31 he underwent an operation. Two holes were drilled in his skull so that Crutchfield Tongs could be inserted and used for the purpose of taking his jaw out of traction. His confinement at the hospital continued until December 11, 1954, when he escaped. After being at large for about a week, during which time he allegedly suffered from pains in the neck and head, and had blackouts, he surrendered to the Passaic police, who had him returned to Bergen Pines. He was discharged from that institution in October 1955, and was then taken to Bordentown Reformatory for parole violation, apparently because of his escapade with the stolen car and the undescribed breaking and entering offense. (The psychiatrist produced by the defense mentioned that Wolak was arrested for burglary in March 1955 and "served two months in the Bergen County Jail for that crime." Whether that was the breaking and entering offense referred to by the defendant himself is not at all clear. It
seems unlikely that there could have been a burglary in March 1955, since everything points to his presence in the hospital at that time. The State offered no corroborating proof on the subject. If such a conviction occurred, it was the only one not within the category of juvenile offenses as distinguished from crimes.) Within the month, Bordentown released him and he went home to his parents in Passaic.
All during the hospitalization and detention, he claimed to have suffered headaches, pain, dizzy spells and blackouts. These conditions were said to have continued after he returned home and to have become progressively worse down to the day of the fatality. He asserted that in an effort to relieve the pain, he started to drink liquor and to take "goof balls," which he believed to be narcotics of some kind (the actual ingredients were not disclosed at the trial). They were said to have been purchased on a public street in New York City from a person known to him only by a first name. The clear indication from the testimony on this matter is that if he did use such pills, he was far from frank in disclosing the circumstances of their acquisition. There was no indulgence in alcohol or narcotics before the automobile accident. The use began only after his release from Bordentown when his headaches were so severe that he "just didn't care about anything."
Wolak testified that on the evening of April 22, 1956 he took two or three "goof balls" before going to Pip's Tavern, and that he has no recollection of the fight there, his arrest, or that he made any threats to Kalita. He denied having threatened Kalita at Garrone's restaurant several weeks later and he insisted upon a complete absence of any recollection of arguing with or threatening Kalita on July 22, 1956.
On one occasion (he said) when he was sober and had taken no drugs, a strange feeling came over him while he was reading a book and the next thing he knew he was down by the Passaic River some considerable distance from home.
Testimony was produced to show that on prior occasions Wolak, while drunk, had committed acts of violence which
he did not recall the next day. For example, he made an unprovoked attack upon a stranger in a restaurant. About a week before the shooting, while in another restaurant, he suddenly rose and knocked over coffee, napkins and other articles. The witnesses to these incidents, who ...