Martino, J.c.c. (temporarily assigned).
Defendants were convicted of murder in the first degree without recommendation. The death penalty was imposed. Pursuant to R.R. 3:7-11 an application was made for a new trial on the basis of newly discovered evidence. The application was made on affidavits and argument and was rejected. An appeal was taken to the New Jersey Supreme Court which by order dated May 2, 1960, ordered the trial court to proceed to take testimony on such grounds as the defendants specified. A hearing was held on May 23 and 24, 1960.
Before relating the evidence produced at the recent hearing a sketchy background might assist in understanding the plight of these three defendants.
The State contended and undoubtedly proved that on Friday evening, January 24, 1958, Edward J. Davis, who owned and operated a toy shop at 1731 Broadway, Camden, New Jersey, was fatally wounded and died 35 minutes after entering the hospital. The medical examiners concluded that
Davis had been shot four times. There were no powder burns on his body and as a result of a clue furnished by a witness who observed an automobile going through a red traffic light, which automobile was registered in the name of one of the defendants, the three defendants were apprehended. Each of them confessed to their participation in the attempted robbery and murder. Their confessions showed that the three defendants had previously secured guns, had arranged to rob the victim and that pursuant to their plan defendant Godfrey drove his automobile with the two other defendants as passengers to the vicinity of the Davis store. The State proved through the confessions that the defendant Cassidy, with a gun which he had borrowed from a friend, and defendant Johnson, with a revolver which was given to him by the defendant Godfrey, entered the store. Defendant Johnson confessed that he said to the decedent Davis, "This is a stickup." The confessions indicate that immediately after the shooting the defendants Cassidy and Johnson escaped through a rear door and both defendants later entered the defendant Godfrey's automobile after which they returned to their respective homes.
The principal witness for the State was one Noah Hamilton, who testified that six or eight weeks before the fatal shooting he had a conversation with the defendant Godfrey who asked him if he wanted to make some money and suggested a holdup of the toy store of the decedent. On the day following the alleged offense the State's witness, Noah Hamilton, an admitted friend of the three defendants, whose testimony also figures in this rehearing application, went with the three defendants to Newark.
The defendants did not take the stand in their own behalf.
Of particular significance to this background is the absence of any inference from any of the statements made by each of the defendants before the initial trial that the decedent Davis was in any business other than the legitimate business of selling toys.
A condensation of the testimony submitted on this application for a new trial and which contains the salient evidence introduced by the defendants to justify their present application follows.
One of the defendants. He testified he requested of his attorney the privilege of taking the stand to testify but his attorney refused. His mother likewise asked for permission to testify and she was refused. He testified that he told his attorney that he was involved in narcotics but this evidence was not introduced at trial although he requested his attorney to make that fact known. He stated that he knew the decedent prior to the date of the fatal shooting. He stated that one Noah Hamilton owed him some money in the amount of $15 for narcotics which this defendant had delivered for Hamilton and decedent Davis, and that he was supposed to collect for this delivery from Hamilton but Hamilton said the money was due him from the decedent. He stated that he first met with the decedent through Hamilton in November of 1957, which was three months before the alleged murder, and the meeting came about as a result of the purchasing of narcotics from Hamilton; and on one occasion Hamilton suggested that since he was out of work that this defendant could make money by delivering packages for him and Mr. Davis, and as a result Hamilton took him to the decedent's store. While in the store Hamilton and decedent had a conversation not in his presence, and after the conversation was completed he heard Hamilton tell the decedent that he was the fellow who was going to deliver packages for Mr. Davis, whereupon Mr. Davis approved and advised him that Hamilton would take care of the defendant. He then went on to say that he and Hamilton made deliveries as agreed and that on each occasion a "delivery" was made, Hamilton paid him. He stated that before [63 NJSuper Page 21] the shooting took place that he had been a user of narcotics such as marijuana, nembutol and a drug known as "benneys." He says that on the day of the shooting he had awakened and went to an employment office, after which he started for Hamilton's home and he asked Hamilton for payment for a delivery he had made the day before. Hamilton denied that he had any money for him and said that the defendant should go see the decedent Davis and get it. He says he argued with Hamilton because he felt Hamilton was "beating him" out of the money, but Hamilton told him that the decedent would straighten him out, whereupon he asked for and received three reefers and three nembutol tablets and returned to his home where he played records and smoked the reefers and took the pills. Later on he went to the defendant Cassidy's home because he wanted him to accompany him to Davis'. He stated that when he left his home he was "good and high" and he was still smoking marijuana, and as he got to Cassidy's home the defendant Godfrey was pulling up in his automobile. He stated that he went into Cassidy's home with Godfrey, and although he was pretty high at the time and "can't remember exactly what I done after I got in the house," he did deny that a robbery was planned. He stated he did not remember any discussion that was had between him and the other defendants at the time they went into Cassidy's home, and the next thing he remembers is the following morning when he found himself in his sister's home with a hangover. He remembers nothing from the time he got into the car with the other two defendants until he awoke the following morning. He stated that his sister on that occasion questioned him about an injured hand and he told her he did not know what happened but thought "maybe I had been in a fight or something." Later he went to Bill's Bar and was there about 15 minutes when the defendants Godfrey and Cassidy and a witness Noah Hamilton pulled up in an automobile. The two defendants asked him if he recalled what he had done the night before and he said he did not, whereupon they told him what had
happened. Subsequently this defendant was arrested in Newark where he was interrogated by three Camden detectives at which time he admitted that "Well, I know of the murder but there was no robbery." He testified that he told them he did not commit a robbery. He told them exactly what had happened.
On cross-examination he admitted that he had the opportunity to go over copies of his confession and did not call to his attorney's attention any fact stated therein that was not true, but insisted that he explained to his attorney that anything relating to armed robbery was not true. There followed a series of questions in which reference was made to the confession given by this defendant, but he repeatedly said that he did not remember any of the questions and his answers. He recalls being apprehended four or five days after the alleged murder. This witness testified that he told the authorities on being questioned that he was using narcotics at the time and that he knew nothing about armed robbery, and he explained that he was working for Noah Hamilton and the decedent and that everything that was contained in his confession was fed to him by a city detective; and although many of the questions asked therein might have been asked of him, he did not recall the statement and whatever statement was made, the contents were fed to him by the city detective. He admitted that he told this same detective that he knew nothing about armed robbery, but he did know about the murder and this knowledge was brought about by information given to him by the other two defendants. He stated that Cassidy, with whom he had entered the decedent's store, related to him what had occurred while they were in the store before the fatal shooting and that Cassidy told him that when he asked Davis (decedent) for money for delivering the package that Davis said Noah Hamilton had the money and that he and Davis had an argument and that Davis threw him out of the store the first time, but he does not remember entering the store and that his return to the store was related to [63 NJSuper Page 23] him by Cassidy. He admitted that he had never approached Davis for money before and only went to the store because Hamilton told him to see Davis. He further stated that he told his attorney when he first interviewed him that he had gone to the decedent's store for money due him. He stated that his attorney said if he insisted on taking the stand that he wouldn't represent him anymore and that this defendant insisted on taking the stand because he felt that this was the only way to be saved from the death penalty, but that his attorney said he would not take the responsibility of suggesting that procedure and that he asked this defendant to sign a paper which has been introduced in evidence (S-1). This defendant says that he was under the impression that he was going to testify until his attorney stood up and said "No Defense." He said that both Cassidy and Godfrey wanted to take the stand. It is significant that this defendant says that he met the decedent in November 1957 by an introduction of Noah Hamilton, which meeting took place in the decedent's store (this is denied by Hamilton). This defendant stated on cross-examination that defendant Cassidy knew he was "delivering" narcotics for Hamilton. Significantly, this witness recalls being "high" while going to Cassidy's but does not recall entering the decedent's store. The substance of this defendant's testimony then reduces itself to the principal contention that the defendant Sylvester Johnson was so "high" that he recalls nothing which transpired within the store yet his goal was to collect money due him from the decedent at the store and that since he was a user of narcotics this fact should have been brought to the attention of the jury and that he had insisted on this right but was refused the opportunity by his counsel and that whatever confession he made concerning the alleged murder was a concoction of the detectives who fed him the material; that any statement he made was involuntary and that decedent was a peddler of narcotics and this was known to the defendant Johnson for some period previous to the fatal
incident. This defendant admitted that he had been convicted of the crime of breaking and entering. Defendant Johnson when asked whether or not he would have any objection as to his trial attorney's testifying in this matter expressed a dislike for the attorney's opportunity to testify and the reason he gave was, "I don't think Mr. Bertman would try to help me at all and I do not think he has my best interest at heart and I think he would only hurt me by only helping hisself."
This person identified herself as Juror No. 13 and she was asked whether or not the jurors had discussed the case while they were staying at the hotel following the close of each court day. She stated categorically that the court had cautioned the jury not to discuss the case and as a result the case was not discussed and that at no time prior to the charge of the court did she hear anyone discuss the case as members of the jury.
One of the jurors who was asked on the voir dire whether or not she or anyone of her friends or relatives had ever been a victim of a robbery at which time she answered, "No I have not, no one that I know of." She was asked whether or not at this time she desired to change that answer and she stated that, "At that time I told the truth. I did not remember. I hadn't any reason to remember. In fact, the truth is this, that if I had known it, believe me, I would have told it if it had been any way of getting out of being on the jury." It appeared that her husband had been the victim of an armed robbery. In fact there was some reference to more than one armed robbery and this occurred 18 or 19 years before the date of the voir dire and she had completely forgotten it and it was brought to her attention approximately six months after the trial had been concluded. However, the trial record indicates that Mrs.
Wheeler was not one of the jurors who was finally selected since she was excused because of illness before the jury began its deliberation. She further stated that at no time before her withdrawal from the jury did she ever discuss her husband's situation with any member of the jury and that at no time from the commencement of trial up to the Judge's charge did she hear any jurors discussing the case.
The husband of the juror and previous witness, Grace M. Wheeler, related that in 1941-42 he was involved in three armed robberies at which time he was working for the Atlantic Refining Company and at the time of these robberies he was married to the juror. He admitted that he had discussed these robberies with her "at the time of the robberies." He stated that there had been a discussion concerning his experiences after the murder trial had been concluded.
This witness was called to corroborate that on the day of the shooting she had been with Stanley Cassidy and in the afternoon she saw the defendant Johnson with the defendant Godfrey and that Johnson had an unusual attitude in that he did not respond to questions she asked him; that although he usually joked with her this day he did not and his eyes were "sleepy," and although an effort was made through this witness to establish the fact that Johnson was under the influence of narcotics she admitted that she had never observed anyone under that influence.
This is a sister of the defendant Sylvester Johnson. It was at her home that Johnson stated that he found himself the morning following the alleged shooting. She testified that he had an improvised tourniquet on his hand and that he looked funny, confused -- his eyes red and pupils dilated. She stated that she was a graduate nurse and at the end of this
year she will be registered and that she is presently employed at the Albert Einstein Medical Center. She outlined her three years of training and was asked whether or not she had ever had occasion to observe people under the influence of narcotics and although she never saw anyone under the influence of marijuana, she did see persons under the influence of nembutol. She described her brother's features and explained that he appeared to be in a confused state and when he was asked how he hurt his hand he said he didn't know and this upset her. When she was asked on ...