On appeal from the Bergen County Court, Law Division.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Wachenfeld, J.
The defendant, Edgar Smith, having been convicted of first-degree murder without a recommendation by the jury, appeals the judgment of death rendered against him, contending he was denied a fair trial, that the verdict was against the weight of the evidence, and that prejudicial error was committed requiring a reversal of the conviction returned.
The points contended for by the defendant will be disposed of in the order in which they are presented in his brief.
The factual developments, although disputed in many respects, will be set forth fully since they have a direct relationship to some of the issues raised.
The victim, Victoria Zielinski, a 15-year-old school girl, resided in Ramsey, Bergen County, New Jersey. At about 7:30 P.M. on March 4, 1957 she left her home, intending to walk to the house of her friend, Barbara Nixon, located on the same street, Wyckoff Avenue, about eight-tenths of a mile away. She was accompanied by her 13-year-old sister, Myrna. Myrna left her sister about two houses away from her destination and returned home alone. The two girls had arranged that at 8:30 P.M. Victoria would leave the Nixon house and Myrna would leave her own home and they would meet half-way on Wyckoff Avenue and walk home together.
Myrna started toward the Nixon home at 8:40 but did not meet her sister as planned. She went to the Nixon home, arriving there at about 8:50, and ascertained that Victoria had left there at about 8:30. Barbara Nixon had accompanied Victoria outside and had seen her walking toward her home. Barbara had lent her a gray scarf, and she testified that
when Victoria left for home no cars were seen passing on Wyckoff Avenue in either direction.
While Myrna was returning home at about 9:05 or 9:10 P.M. she saw a boy, designated as D.H. for the purposes of this opinion, drive past going in the direction of Ramsey at 50 or 60 miles an hour. He was alone in the car. Myrna testified that D.H. had known Victoria but had never dated her. At the trial D.H. admitted he had taken Victoria out approximately ten times.
When Myrna arrived home at about 9:10 P.M., she informed her mother, Mrs. Mary Zielinski, that Victoria had not met her as planned. Mrs. Zielinski was not unduly disturbed and took no immediate action. When Victoria had not appeared by 12:30 A.M., however, Mrs. Zielinski awakened her husband, Anthony, who had retired at 8:00 P.M. and told him the girl was missing. Mr. Zielinski got up, dressed, and with his oldest daughter, Mary, went out to look for Victoria.
While driving down Wyckoff Avenue, Mr. Zielinski and Mary encountered a patrol car and talked to the policemen who were in it. They then went on to a milk bar in Ramsey but were unsuccessful in finding Victoria, returning home about 1:00 A.M. Shortly thereafter Mr. Zielinski and his wife went out to continue the search, driving past the Nixons' and going to another milk bar. After about an hour the elder Zielinskis repaired to their home, and there continued their vigil until daybreak.
As soon as it was light Mr. and Mrs. Zielinski resumed their search for their daughter. They visited the Nixons, who reported they had not seen Victoria since she left their home on the previous evening. They then went downtown and gave Victoria's picture to a Ramsey police officer. Afterwards, the Zielinskis cruised around the streets in the vicinity of Wyckoff Avenue.
At about 9:00 A.M. Mr. Zielinski noticed a black loafer lying in the street near the intersection of Fardale Avenue and Chapel Road. As he stopped his car he also noticed a kerchief, or babushka, approximately 20 feet farther up
the road. It was stained with blood. He immediately dispatched his wife for the police, and then clambered over a low wall on the right-hand side of the road and began to search through the underbrush beyond. Finding nothing there, he went to the entrance of a sand pit situated just beyond the intersection of Fardale and Chapel, where he discovered a pair of red gloves. He returned to his automobile.
By this time Captain Wickham of the Mahwah Police Department had arrived on the scene, and together he and Mr. Zielinski searched both sides of the dirt road leading into the sand pit. There were tire tracks on the road. When they reached the top of a mound of dirt beyond the end of the dirt road Mr. Zielinski discovered a silver locket belonging to Victoria, her other loafer, various footprints, stones covered with blood, and an area of ground which had been "scuffed." He then saw "brains scattered for seven or eight feet along the bank." He looked over the edge of the mound and saw her body "in a jackknifed position."
Victoria was lying face down with her sweater pulled up around her neck and her brassiere down around her midriff. One of its straps was broken. She was still wearing dungarees. One of her socks was completely off while the other was hanging on her foot. Her windbreaker was lying beside her. There was a hole in the back of her head and much of her hair was gone. A hank of hair matted with blood was subsequently found on Fardale Avenue near the loafer first discovered by Mr. Zielinski. At the trial, Mrs. Zielinski, Myrna Zielinski and Barbara Nixon identified the clothing and accessories found on or near Victoria's body as those she had worn before she disappeared.
The autopsical examination revealed the cause of death as "the total crushing of the skull with a decerebration, traumatic." Victoria's brain and left eye were completely destroyed. Her teeth were hanging loosely in her mouth and her nose and jaw had sustained multiple fractures. Both her hands were covered with blood, and her fingernails were ripped. There was no evidence of a carnal assault. There
were no marks on her body from the neck down, save for four or five small bruises on her right breast, apparently teethmarks.
Because the weather had been below freezing the county medical examiner was unable to fix precisely the time of death, stating "the time of death in the winter with rigor mortis is a very moot problem" and "[t]he prevailing weather has a great deal to do with the setting in of rigor mortis or the dissolution, and I estimate that she was dead about 12 hours, give and take an hour." Since the autopsy had taken place at about 1:00 P.M. on March 5, this estimate placed the time of death at around 12:30 or 1:00 A.M. on March 5. On cross-examination the medical examiner emphasized, however, that the exact time of death could not be fixed and further clarified his findings by stating:
"Q. So it was [the time of death], in your judgment, not * * * earlier than 11 o'clock * * * or perhaps not later than one? A. It could have been earlier than 11 o'clock because the prevailing weather was so cold and the body might have stiffened up, according to standard data.
With rigor mortis setting in in the normal way and the normal atmosphere and the normal temperature, the time of death would be established at 12 hours, either an hour later or an hour earlier, but with the prevailing weather being as cold as it was, it was very hard to determine when it was exactly."
The defendant, Smith, was 23 years of age with a wife and family. Prior to the date of the murder he had been employed at various jobs for short periods of time. His last employment was with a seat cover and automobile muffler shop which had hired him to help install hydraulic lifts and other equipment in its garage. Smith was discharged from this job on March 4, 1957, after working for approximately a week.
Defendant's possible connection with the murder was brought to the attention of the police by Joseph Gilroy, a friend of Smith, who testified as to what caused his suspicions.
On March 4, 1957 Smith telephoned Gilroy from the Paramus Bowling Alleys on Route 17 and requested him to drive over. Gilroy arrived at the alleys at approximately
4:30 P.M. and bowled four or five games with Smith and another friend, Charles Rockefeller. All three left the alleys at about 6:30 P.M. in Gilroy's automobile, a 1950 Mercury convertible. While journeying home Smith asked Gilroy if he could borrow the latter's car in order to procure some kerosene for the heater in the trailer where Smith lived with his wife and baby. Gilroy consented, and Smith took the automobile after dropping off Gilroy and Rockefeller at their respective homes.
Around 9:15 P.M. Smith telephoned Gilroy at his home. He said he was sick and had been unable to light the heater and asked Gilroy to drive him and his family to his mother-in-law's residence in Ridgewood. Gilroy agreed, and Smith came by for him in the Mercury at about 9:45 P.M. The two men then drove to the trailer to get Smith's wife and child.
On the way to the trailer Smith volunteered the information that he had vomited on the trousers he had been wearing earlier and had had to dispose of them, not saying where. Gilroy stated that in his opinion Smith did not look ill at the time.
After picking up Smith's family Gilroy drove them to Ridgewood and then returned home. At about 12:00 noon on the succeeding day, March 5, Smith again telephoned Gilroy, this time asking him to drive the Smiths from Ridgewood back to the trailer. Gilroy acquiesced and thereupon drove to a gas station, where he encountered D.H. The two drove to Ridgewood in D.H.'s car.
During the journey D.H. and Gilroy talked about the murder. D.H., who, from a conversation at the gas station, knew that Smith had borrowed Gilroy's automobile on the preceding night, told Gilroy he was "going to tell Eddie that the police are looking for a Mercury." Apparently, this was regarded as a joke. Gilroy testified that actually D.H. "didn't know if the police were looking for a Mercury." When Smith emerged from his mother-in-law's home, D.H. "winked" at Gilroy and then told Smith the police had discovered "tire prints" and were "going to check all the
Mercurys in Bergen County." Gilroy testified that Smith reacted with "a startled look on his face."
While driving to the trailer the occupants of D.H.'s automobile discussed the murder, D.H. stating he had driven past Myrna Zielinski on Wyckoff Avenue the previous evening. Either Smith or his wife picked up a lipstick from the floor of D.H.'s car and handed it to D.H., saying "Maybe this is Vickie's lipstick." D.H. replied "No" and threw it out the window.
When the party arrived at defendant's trailer Smith got out of the car and returned with a pair of shoes which he placed in the back. D.H., Gilroy and Smith then drove downtown, where Smith left the other two, saying he was going to get a cup of coffee. He took the shoes but did not have them with him when he later rejoined D.H. and Gilroy.
Some time later Gilroy noted stains on the driver's seat and floor mat of his car. He habitually carried baseball equipment in the car and a bat was missing from the back seat. This bat was subsequently discovered in the woods near the intersection of Fardale and Chapel. It was ingrained with blood. The presence of the stains, conjoined with Smith's behavior concerning the trousers and the shoes, sharpened Gilroy's suspicions. He showed the stains to D.H., Rockefeller and another friend, and, upon their advice, went to the Ramsey police.
Acting on the information supplied by Gilroy, at about 11:30 P.M. on March 5 Detective Graber and other officers went to Ridgewood and took Smith into custody at his mother-in-law's home. Smith was removed to the Mahwah police headquarters and there interrogated. Subsequently, he accompanied the police to Ramsey, where his shoes were retrieved from a garbage pail. Both shoes were liberally impregnated with human blood and proved to be exact duplicates of plaster impressions taken of footprints at the scene of the crime. The tongue of one and part of the soles of both were missing.
Later, Smith was taken to the sand pit where, at around 7:40 P.M. on the previous night, he claimed to have pulled
just a short way into the dirt road in order to "throw up." No evidence of vomit was found. Smith refused to walk over to the place where the body had lain, saying "he did not know what was over there" and "had never been back in that vicinity." He told the police he had thrown away his trousers in a certain area along Pulis Avenue after vomiting on them, but a search for the trousers was fruitless. In addition to combing the Pulis Avenue vicinity, the police also looked along Wyckoff Avenue where Smith claimed to have vomited before entering the sand pit. Again, nothing was found. The jacket Smith had been wearing on the night of March 4 was recovered from his mother-in-law's home, but according to the testimony of Detective Graber, the defendant said it "would not do us much good" since defendant had already washed it.
Captain DeMarco of the Bergen County Prosecutor's office testified he had examined Smith's hands and legs during the course of the initial interrogation at Mahwah Police Headquarters and had discovered that defendant's hand and one knee were lacerated while his other knee displayed a recent contusion. Smith claimed to have injured his hand while repairing an automobile tailpipe and said the knee injuries had resulted from his falling out of Gilroy's car on the night of March 4 when he vomited on Wyckoff Avenue. Captain DeMarco also related that Smith told his interrogators, "If you are looking for a fall guy, why don't you grab D.H.?"
After his trip to the sand pit in the company of the officers Smith was taken to the prosecutor's office and questioned further by Detective DeLisle, who testified that the defendant broke down and started to cry at about 10:00 A.M. on March 6, requesting permission to see a priest. After a slight interval Smith regained his composure and then admitted driving Victoria Zielinski to the sand pit in Gilroy's automobile on the night of March 4. He stated the girl had "babbled" something about "school and a note" and had gotten extremely excited and attempted to leave the car, whereupon he, Smith, had hit her "a good shot." The questioning was interrupted while Smith talked with the priest whom he had asked to
see. Then the defendant gave a lengthy statement under oath in which he related in some detail his activities on the day of March 4. Subsequently, Smith, on the advice of his attorney, refused to sign this statement, but he conceded its accuracy. It was admitted into evidence at the trial. The officers who were present and the stenographer who recorded the statement testified the defendant gave it calmly and voluntarily. Smith began his statement in the prosecutor's office and continued making it as he and the police revisited the vicinity of the crime. The substance of Smith's admissions follows.
On the morning of March 4, 1957 he was laid off from his job. He spent most of the afternoon at a bowling alley in Paramus and left for his trailer home at about 6:30 P.M. with Gilroy and Rockefeller. He borrowed Gilroy's car and drove to a gas station where he purchased five gallons of kerosene. He returned home shortly before 8:00 P.M. and tried to light his heater but was unsuccessful. He decided that he needed more kerosene. Before he drove off, his wife returned from the doctor's accompanied by her mother. Smith informed them of his errand and left. He bought five more gallons of kerosene at a Ramsey service station and started to return home via Wyckoff Avenue at about 8:30 P.M.
Near Fardale Avenue in Mahwah he saw Victoria Zielinski, whom he knew casually "from meeting her in town," walking along the street. He was proceeding in the opposite direction and was going to pass her by, but she yelled or motioned for him to stop. He turned around and came back and she requested a ride to her home. Smith had driven her home on several previous occasions, and he agreed. The time was approximately 8:35 P.M.
Shortly before they reached the Zielinski residence Victoria told Smith that her sister was walking to meet her and that she did not want Myrna to see her in the car with him because "she was in trouble with her family." She asked him to drive around the block. He complied, turning off Wyckoff Avenue onto West Crescent Avenue, the last street before her house. When they arrived at the sand pit off Chapel Road
near Fardale, he turned in of his own accord. Defendant and the victim sat in the car and talked as Smith smoked a cigarette.
Victoria told him she was having difficulty with her family over cutting school and that they had found out about a false note she had prepared and sent to the school under her mother's name. Suddenly, and according to Smith for no apparent reason, she said: "I am going to get out and walk home. I am going to tell my father. I am going to go home and tell him you are like the rest of the guys."
She started to leave the car. Smith, feeling he was responsible for seeing her home, reached across the seat and grabbed her arm. She struggled and got part of the way out of the car as he worked his way across to the passenger's side of the front seat. When he tried to follow her out, she "started yelling something" and "swinging at me and sort of slapping." He swung in her direction with his right arm, "a fist or a slap," but could not remember whether or not he hit her. "The next thing I actually realized was getting back into the car."
Defendant stated his recollection of the events succeeding the struggle was "vague"; "[t]hat's where somebody pulled the switch." He was unable to recall whether or not he had struck Victoria more than once or with something other than his fist. He had "a feeling of running somewhere," of "chasing somebody." The ground was "soft." He said: "I think I recollect running in the sand with my shoe off."
Smith was alone when he got back into the car and his right foot was cold. Later, he realized he had lost his shoe. He backed the automobile onto Chapel Road and after proceeding 40 or 50 yards stopped by the edge of a wooded area where he remembered seeing a Christmas tree he had thrown away there. Victoria's school books and pocketbook were in the car when he left the sand pit but not there when he arrived home. He thought he had probably thrown the books and the pocketbook into the woods near the Christmas tree. When he arrived home Smith realized for the first time that his trousers and socks were bloody. He told his wife he had
been sick. She gave him a clean pair of pants. He threw the bloody socks onto a patio outside the trailer. Once again, he tried to light the kerosene heater and failed. He telephoned Gilroy and asked the latter to drive him and his family to Ridgewood. He went alone to pick up Gilroy and took the bloody trousers and a "twelve volt lantern" with him.
Before going to Gilroy's home Smith returned to the sand pit. Utilizing the lantern, he found his other shoe. He also saw a red mitten or glove but "didn't think anything of it" and kicked it off to one side. Between the sand pit and Gilroy's he disposed of the bloody trousers, but could not remember how. By the time he reached Gilroy's home he had "completely forgotten about the whole thing * * * [j]ust like it never happened."
When he and Gilroy arrived back at the trailer, Smith placed the shoe he had recovered from the sand pit in the bedroom with its mate. He and his family were then driven to Ridgewood by Gilroy. Smith "watched the end of the television show," "washed up," and went to bed at about 10:00 P.M. He "never realized anything was wrong at all."
The next morning he got up and washed the shirt and jacket he had been wearing on the previous night. Around 11:30 A.M. he heard a news broadcast reporting Victoria's death. He began to get "curious": "Something was snapping in the back of my head." Early that afternoon he discussed the homicide with Gilroy over the telephone, and "[t]hat's when it dawned on me that I had been with her the night before and something snapped in the back of my head that I did it and I knew it in the back of my head [but] I couldn't convince myself." Later, when D.H. told him the police were checking Mercury registrations, "[t]hat's when it hit me really hard I must have been the one who really did it." Subsequently, as already described, defendant placed his shoes in a garbage pail from which they were removed by the police.
Smith told his interrogators he had been "cold sober" on the night of the 4th, but that after he had swung at Victoria "[t]hings turned sort of red and then black." He estimated
he had spent 10 to 15 minutes in the sand pit the first time and said that the wounds on his hand and knees must have been inflicted during the interval between the time when his memory went blank and the next morning. He could not recall precisely how he had sustained them. He denied making any advances to Victoria.
Smith's trousers with two socks stuffed into the pockets were located by the police. Both the socks and khakis were stained with type "O" human blood, the same type found on the victim's sweater, jacket, brassiere, gloves and scarf. Smith's blood type is "A." Following Smith's directions, the officers recovered Victoria's handbag and school books. Defendant identified the shoes, trousers, socks, jacket and wool shirt as the clothes he had been wearing on the night of the crime.
While engaged in making his statement, Smith was asked whether he had been mistreated and replied, "No," saying his treatment had been "[b]etter than expected."
Testifying on his own behalf at the trial, Smith materially changed his version of what had occurred on the night of March 4. He stated Victoria, not he, had suggested that they park in the sand pit so that she could discuss something important with him. After they had parked, she told him his wife was running around with another man. He was greatly upset and slapped her face, telling her to get out of the car. She left and started walking down the road.
A few moments thereafter, while he was preparing to leave the pit, defendant heard a commotion and saw two figures coming up the road. He quickly got out of the car and his "bad" ankle, which had been struck by a bowling ball earlier in the day, collapsed under him, his right shoe coming off. Since the identities of the oncoming persons were unknown and it was a lonely spot, he seized the baseball bat from the back seat of the car for protection.
As the figures approached, he recognized them as Victoria and D.H. Victoria was bleeding from a cut over her ear. Smith asked D.H. what had happened, and the latter replied the girl had fallen on the road. Smith examined the wound
and in the process got blood on his hands and trousers. Feeling she should be taken to a doctor, he placed her in the automobile, but D.H. grabbed her and forcibly pulled her out, telling Smith to leave her alone, that he, D.H., would take care of her. Victoria pleaded with Smith for succor, but since D.H. knew her much better than he, Smith decided he should not interfere further and drove off, leaving his shoe and the baseball bat behind.
When he returned to the sand pit later that evening, while on his way to Gilroy's, defendant saw the baseball bat and noted it had been split but did not pick it up. He also noticed the red glove.
Before reaching Gilroy's home, Smith encountered D.H., who was parked on Main Street in Ramsey. Smith stopped and inquired how Victoria was, and D.H. told him: "Don't worry about her, forget about her. Don't say anything about tonight or we will all be in trouble. * * * If you mention my name or use my name in this, I'm ...