The opinion of the court was delivered by Jacobs, J. Burling, J. (concurring). Proctor, J. (concurring). Burling, Proctor and Hall, JJ., concurring in result.
The defendant was found guilty of murder in the first degree without any recommendation of life imprisonment. He was sentenced to death and appealed to this court as of right under Article VI, Section V, paragraph 1 of the Constitution.
The body of Ruth Lowe Petrosky was discovered during the evening of August 7, 1957 in the cellar of the apartment building where she had lived with her husband and children. She had been brutally stabbed to death and her injuries, which had apparently been inflicted by means of a thin blade, included 13 or 14 stab wounds in various parts of her body. She was fully clothed and there was no evidence suggesting that there had been any attempt to assault her sexually. Members of the Union County Prosecutor's office and the Plainfield police department questioned tenants in the building, and early during the morning of August 8 they were admitted to the Mount apartment by the defendant's father George Mount. The defendant, who was then sleeping in the apartment, was awakened and taken to the Plainfield police headquarters where he was questioned and confessed that he had killed Mrs. Petrosky. He identified an 11 1/2-inch homemade knife which had been found in the Mount apartment as the lethal weapon and he told the police officers where they would find, as they did, the bloodstained trousers he had worn at the time of the stabbing. He signed a written statement during the morning of August 8 and a clarifying supplemental statement during the afternoon of the same day. In these statements he gave substantially the following story:
He is 18 years of age and his formal education consisted of eight years of grammar school. He served in the United States Navy from March 5, 1956 to July 25, 1957 and holds a general discharge. His parents are divorced, he has been living with his father, and he has not seen his mother for about three years. He is employed as a stock boy at the Mayfair supermarket in Plainfield. Mrs. Petrosky's apartment was across the hall from the Mount apartment and he had a nodding acquaintance with her. On August 6 he passed Mrs. Petrosky and as he ran up the stairs she said something which he "did not quite catch." As he came down the stairs he again passed her and said, "I'll see you later honey" to which she replied "Yes, O.K." When he came home from work, he knocked on her door and said, "How about now." She then said she was only "kidding" and he returned to his own apartment. He had inferred that she wanted to have intimate relations with him and when he thought about the matter he "got mad" but then "forgot about it." On the following day while at work he again thought about the matter, "got mad again" but then "forgot about it." He went home about 6 P.M., started watching television, "started thinking about it again, and I guess I got pretty damn sore." When he heard Mrs. Petrosky leave her apartment, he picked up a bag of trash, and a knife which was lying on the kitchen table, followed her to the cellar where she had gone to put trash in a garbage can, stabbed her as she was about to come up the cellar stairs and "just went nuts and kept stabbing her." He "did not try to have any sexual relations" nor did he rip "any of her clothes." He returned to the Mount apartment, washed the knife, changed his trousers, walked to the "railroad bank" where he threw his trousers away, went to the movies, and later went to sleep until awakened by the police officers.
In due course the defendant was indicted for murder, counsel was assigned to him, and the matter came on for trial. In his opening, counsel for the defense did
not deny that the defendant had caused the death of Mrs. Petrosky in the manner set forth in the statements but stressed the defendant's youth and unfortunate history and the alleged lack of a planned killing as grounds for avoidance of imposition of the extreme penalty of death. Counsel stated that he would offer background evidence, including testimony indicating that when the defendant was five years old his father entered the United States Army; that his mother then "took up with a paramour" and lived in open adultery; that when the defendant was 16 years old his mother sent him to live with his father, who "had taken up himself with another woman," and that the defendant's father was "a man of loose morals, who flaunted his immorality in the presence of this boy in the apartment in Plainfield." During the course of the trial defense counsel called the defendant's mother as a witness and asked whether her children, including the defendant, had been placed in an orphanage. The State's objection to this question was sustained by the trial judge, who ruled that "evidence with reference to past life and antecedent background is irrelevant to the issue of guilt or innocence, and under settled authority is properly excluded from the jury's deliberation in determining whether or not to recommend life imprisonment." See State v. Wise, 19 N.J. 59 (1955); State v. Barth, 114 N.J.L. 112 (E. & A. 1935). Additional questions addressed to the defendant's father, mother and grandmother, and seeking to elicit information as to the defendant's background, were consistently excluded by the trial court.
The defense called Dr. Garber, a duly qualified psychiatrist, to testify as to whether the defendant was capable of premeditation at the time he stabbed Mrs. Petrosky. See State v. Close, 106 N.J.L. 321, 324 (E. & A. 1930); but cf. Fisher v. United States, 328 U.S. 463, 66 S. Ct. 1318, 90 L. Ed. 1382, 166 A.L.R. 1176 (1946). In the course of his examination of the defendant, Dr. Garber had obtained a history which he stated was "customary as part
of the psychiatric evaluation." He was not permitted to state what the history was nor was he permitted to testify on the basis thereof. However, the trial court did permit him to give the following answer in response to a hypothetical question grounded exclusively on the evidence admitted during the trial:
"I believe that there are a number of very significant facts that have come out of this hypothetical question, which leads me to the conclusion that this defendant was not a well person, as reviewed by the information in this skeletal background, which leads me to the conclusion that as a result of the behavior described that I don't believe he was capable of premeditating this crime. The recitation of what he did in enacting it, what he did following it, is very significant, and for these reasons I do not believe that he was reacting in what we in psychiatric terms would say is the behavior of a normal person."
During cross-examination Dr. Garber noted that he found it very difficult to exclude the information he had obtained from his examination of the defendant from the matters set forth in the hypothetical question, and that he would be in a position to answer more readily if he had the opportunity of utilizing all of the information available to him; he testified that "I don't think this man was medically insane to the point that he was committable to an institution, but I do say he underwent a disturbance of his thought processes that he was unable to premeditate"; and he expressed the feeling "that all the acts that are contained in this continuing episode" are those of a person "very emotionally ill" though "not legally insane." Dr. Flicker, a duly qualified psychiatrist called by the State, testified that according to the facts in the hypothetical question the man had "the ability to premeditate and to plan" and that he saw nothing in the hypothetical question that would indicate lack of ability to premeditate, whereas much of it indicated "that he would have the ability to premeditate." He testified that he had never examined the defendant and had considered only the matters set forth in the hypothetical question. [30 NJ Page 203] At the outset of the trial it was recognized by all that it was vital that there be selected an impartial jury having no conscientious scruples against capital punishment and no prejudices against the substitution of life imprisonment therefor. See Funk v. United States, 16 App. D.C. 478, 485 (1900); certiorari denied, 179 U.S. 683, 21 S. Ct. 916, 45 L. Ed. 385 (1900); Snell v. United States, 16 App. D.C. 501, 506 (1900); United States v. Puff, 211 F.2d 171, 183, 48 A.L.R. 2 d 540 (2 Cir. 1954), certiorari denied, 347 U.S. 963, 74 S. Ct. 713, 98 L. Ed. 1106 (1954). Accordingly, there was extensive voir dire examination by the prosecuting attorney, who concentrated on excluding jurors who were opposed to the infliction of capital punishment for the crime of murder, and the defense attorney, who concentrated on excluding jurors who were opposed to the substitution of life imprisonment as the appropriate punishment. When prospective juror Bloom was called, 58 veniremen had been examined, 18 had been excused because of their opposition to capital punishment, and 8 had been chosen to serve as jurors. The prosecuting attorney asked Mr. Bloom, as he had consistently asked all of the previous veniremen, whether "in a proper case where the facts warrant and under the charge of the law by the court would you vote for a verdict of murder in the first degree, knowing that as a result of that verdict the defendant would be put to death?" Cf. State v. Bunk, 4 N.J. 461, 468 (1950), cert. denied, 340 U.S. 839, 71 S. Ct. 25, 95 L. Ed. 615 (1950). At that point the trial judge, in the presence of all of the jurors who had been selected and the veniremen who remained to be called, interrupted to state that "we have appeal courts and everything else, so a lot of things could happen." He suggested that the question be altered to inquire whether the venireman could vote for murder in the first degree knowing that the defendant would receive the death sentence, and remarked that "saying knowing that the defendant would be put to death, other things could happen which could change the situation." When the prosecuting attorney then took
the position that his original question was entirely proper, the trial court repeated that the venireman "has no way of knowing the defendant is going to be put to death" and that while the death sentence is automatically imposed upon a finding of guilty of murder in the first degree, "whether it will ever be carried out or not we do not know. The appeal court may decide it." The prosecuting attorney then stated that "the jury must face that as the probability," but the trial court responded, "the jury cannot face it, because it may not happen. Only the other day a conviction was reversed by the Supreme Court."
When prospective juror Covert stated that she was opposed to capital punishment and thought "a person who does something like that is really sick," the trial court inquired whether she would feel the same way if "you were, or some members of your family, had been affected by it." When prospective juror Cullinane stated his opposition to capital punishment the trial court inquired whether he would feel the same way if a member of his own family "was the victim." When prospective juror Ripak stated that she could not render a verdict of guilty of murder in the first degree knowing that it would mean the death penalty, the trial court inquired whether she would feel the same way about capital punishment if a close member of her family had been the victim of an alleged fatal attack and someone was on trial for the offense. Similarly, when prospective juror Clark stated her opposition to capital punishment, the trial court inquired whether she would feel the same way if a close member of her family was the victim of a fatal attack. When she stated that she could not answer the question the trial court then inquired, "Do I understand you to mean that you are against capital punishment when someone else is involved but you might not be if a member of your own family was involved?" When prospective juror Coffey expressed her opposition to capital punishment, the trial court inquired whether she would feel the same way if a member of her own family was involved in a fatal offense as a victim.
When Mrs. Coffey replied in the affirmative, saying she had three sons, the trial court inquired, "would you feel the same way if one of your sons was the victim?" When prospective juror Casano was being examined she stated that as a Catholic she did not like capital punishment, and at that point the trial court stated that the Catholic religion was not opposed to the death penalty. When prospective juror Cunningham stated that she did not believe in capital punishment, the court inquired whether her conviction was personal or religious and she answered, "Well, religious. I don't believe that a life can be taken." In response to the trial court's further inquiry she stated that she was a Catholic, and the court then repeated its earlier statement that "the Catholic Church is not opposed to capital punishment." All of the quoted remarks of the trial court were made in the presence of such jurors as had been chosen and the prospective jurors who were awaiting their voir dire examination.
The defendant's primary contention is that the trial court's comments during the voir dire examination unfairly prejudiced his opportunity for a jury recommendation of life imprisonment which would have automatically avoided his death sentence. See N.J.S. 2 A:113-4. He cites the court's repeated references to the fact that even though the jury returned a verdict of guilty of murder in the first degree without any recommendation of life imprisonment the defendant might nevertheless avoid the death penalty by action of the Supreme Court on appeal, as tending unjustly to reduce the jury's sense of responsibility in its determination of punishment. See State v. White, 27 N.J. 158, 172 (1958); People v. Johnson, 284 N.Y. 182, 30 N.E. 2 d 465, 132 A.L.R. 675 (Ct. App. 1940). He points out that the trial court's hypothetical questions which inquired whether the prospective jurors would oppose capital punishment if a close relative were the victim wrongly tended to inflame and steel the jurors against returning a recommendation of life imprisonment. See State v. Smith, 216 La. 1041, 45 So. 2 d 617 (Sup. Ct. 1950); State v. Canipe, 240 N.C. 60,
81 S.E. 2 d 173 (Sup. Ct. 1954); cf. Manuel v. United States, 254 F. 272, 274 (8 Cir. 1918); Leverett v. State, 112 Miss. 394, 73 So. 273 (Sup. Ct. 1916). And he voices his objection to the court's inquiries as to religion (cf. State v. Weiss, 130 N.J.L. 149, 153 (Sup. Ct. 1943), affirmed 131 N.J.L. 228 (E. & A. 1944)), and its extra-record assertion that the Catholic Church does not object to capital punishment, as tending to suggest preferment of the death penalty over life imprisonment as the punishment for murder. In all, he strongly urges that the cumulative effect of the trial court's remarks was to deprive him of the fair trial and determination to which he was justly entitled on the crucial issue of life or death. See State v. Orecchio, 16 N.J. 125, 129 (1954); cf. Frankfurter, J. dissenting in Fisher v. United States, supra, 328 U.S. at page 477, 66 S. Ct. at page 1325, 90 L. Ed., at page 1391:
"It is not enough that a trial goes through the forms of law. Especially where life is at stake it is requisite that the trial judge should so guide the jury that the jurors may be equipped to determine whether death should be the penalty for conduct. Of course society must protect itself. But surely it is not self-protection for society to take life without the most careful observance of its own safeguards against the misuse of capital punishment."
In Winston v. United States, 172 U.S. 303, 19 S. Ct. 212, 43 L. Ed. 456 (1899), the court dealt with the congressional enactment which authorizes a federal jury to qualify its verdict of guilty of the crime of murder by adding thereto "without capital punishment." See 18 U.S.C.A. § 1111(b) (1950). The jury had returned its unqualified verdict of guilty after the trial court had charged that its verdict should be qualified only if mitigating or palliating circumstances were proved. In reversing, the Supreme Court had this to say:
"The right to qualify a verdict of guilty, by adding the words 'without capital punishment,' is thus conferred upon the jury in all cases of murder. The act does not itself prescribe, nor authorize the court to prescribe, any rule defining or circumscribing the exercise
of this right; but commits the whole matter of its exercise to the judgment and the consciences of the jury. The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court, on the jury, is of opinion that there are palliating or mitigating circumstances. But it extends to every case in which, upon a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment. How far considerations of age, sex, ignorance, illness, or intoxication, of human passion or weakness, of sympathy or clemency, or the irrevocableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight in deciding the question whether the accused should or should not be capitally punished, is committed by the act of Congress to the sound discretion of the jury, and of the jury alone." (172 U.S., at pages 312-313, 19 S. Ct. at page 215, 43 L. Ed., at pages 459-460)
In Funk v. United States, supra, and Snell v. United States, supra, the court was highly critical of voir dire examinations which go beyond interrogations fairly designed to ascertain whether the prospective jurors have any scruples against capital punishment or any bias against imprisonment for life as the punishment for murder. Cf. Morgan, "Examination of Jurors Prior to Challenge," 31 Yale L.J. 514, 518 (1922). And in Manuel v. United States, supra [254 F.2d 274], the court reversed a murder conviction where the trial judge had persisted in interrogating prospective jurors (who voiced their opposition to capital punishment) as to their willingness as citizens to enforce the law as enacted by Congress; Circuit Judge Stone pointed out that the examination "upon the point of any prejudice against capital punishment should have been confined to an ascertainment of the juror's views and the strength thereof, with the sole object of determining whether he would approach the issue of capital punishment in the proper frame of mind." In United States v. Puff, ...