For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
[34 NJ Page 215] The defendants, Sylvester Johnson, Stanley Cassidy, and Wayne Godfrey, were convicted of murder in the first degree without recommendation and sentenced to death. This court affirmed the convictions. State v. Johnson, 31 N.J. 489 (1960). Shortly before their scheduled execution the defendants obtained new counsel and, through
him, moved for a new trial upon the basis of alleged newly discovered evidence. The trial court denied the motion and the defendants appealed to this court. Granting a stay of execution, we ordered the trial court to take testimony on the motion. Pursuant to our order, the trial court conducted a hearing and again denied defendants' motion. Defendants now appeal from the trial court's order denying their motion for a new trial.
Defendants argue that the trial court erroneously denied their motion, and that they are entitled to a new trial on four grounds: (1) that on the voir dire a member of the jury panel failed to disclose background information which would have led to her disqualification; (2) that they were convicted through the use of involuntary and untrue confessions, and the suppression by the State of evidence favorable to their defense; (3) that N.J.S. 2 A:113-4, which permits a jury to recommend life imprisonment in first degree murder cases, contains no standards to guide the jury and is therefore unconstitutional; and (4) that under our decision in State v. Mount, 30 N.J. 195 (1959), published after their trial, they are entitled to introduce background evidence to assist the jury in determining whether to recommend life imprisonment.
The State contended defendants were guilty of felony murder, i.e., that they killed one Edward J. Davis while attempting to rob him. Defense counsel were therefore understandably anxious to exclude from the jury persons who had been the victims of robbery or who were intimately acquainted with victims of robbery. Accordingly on the voir dire one Grace M. Wheeler was asked the following question: "Have you ever been the victim of a robbery or has any of your friends or relatives ever been the victim of a robbery?" She answered, "No, I have not. No one that I know of." Mrs. Wheeler was then seated as one
of fourteen on the jury.*fn1 She sat as a juror during the trial, but was excused for illness before its conclusion and did not participate in the jury's deliberations.
At the hearing below, Mrs. Wheeler testified that six months after the conviction of the defendants she recalled that her husband had been the victim of three armed robberies about eighteen or nineteen years before she was summoned for jury duty. She further testified that at the time of the trial she had forgotten these incidents and believed her answers on the voir dire to be true. Defendants argue that because Mrs. Wheeler's husband had been the victim of armed robberies she probably harbored a latent or unconscious bias against persons accused of robbery; that she probably communicated this bias to other jurors; and that the defendants were thus prejudiced by being deprived of a fair and impartial jury. In support of their argument they cite United States ex rel. DeVita v. McCorkle, 248 F.2d 1 (3 Cir.), certiorari denied 355 U.S. 873, 78 S. Ct. 121, 2 L. Ed. 2 d 77 (1957).
The trial judge at the hearing on defendants' motion ruled that DeVita was distinguishable. We agree. DeVita was also a felony-murder prosecution. On the voir dire, defense counsel inquired whether prospective jurors had been robbery victims. After the defendant's trial and conviction of first degree murder without recommendation, it was discovered that Arthur Kuhnle, one of the jurors who had decided DeVita's fate, failed to disclose on the voir dire that he had been a victim of armed robbery seven months before the crime with which DeVita was charged. The Federal Court of Appeals for the Third Circuit, presuming that Kuhnle because of his experience was biased against accused robbers, held that his presence on the jury, whose
sole function in the circumstances of the case was to determine punishment as between life and death, deprived defendant of a fair trial in violation of the Fourteenth Amendment. If, as the Third Circuit presumed, Kuhnle was biased against persons who allegedly committed armed robbery, his participation in the jury deliberations in such a situation which resulted in a sentence of death was prejudicial to DeVita. The facts of the present case, however, rebut any presumption of prejudice to defendants. Mrs. Wheeler was not on the jury which found the defendants guilty. She was excused before the jury retired to deliberate. Any prejudice to the defendants must arise, therefore, from her influence upon other jurors prior to the time when she was excused. But at the hearing below she and another juror, Mrs. Alice Conroy, testified that members of the jury, following the trial court's instructions, did not discuss the case during the course of the trial, and that Mrs. Wheeler did not discuss her husband's experiences. Additionally, we note that three other members of the jury were subpoenaed by the defendants, were present at the hearing, but were not called to testify. We think it fair to assume that if these jurors would have testified that any matters pertaining to the case were discussed prior to their deliberations, they would have been called by defense counsel. Accordingly, we hold that although Mrs. Wheeler's husband had been a robbery victim, since she did not participate in the jury's deliberations and did not discuss the case or her husband's experiences with any of the jurors, her presence on the jury during the trial was not prejudicial to the defendants and did not deprive them of a fair and impartial jury.
Defendants next urge that they are entitled to a new trial because they were convicted in violation of the Fourteenth Amendment through the use of confessions which were involuntary and untrue. Their related and subsidiary argument
is that the State, in the taking of the confessions, suppressed evidence favorable to the defense.
An outline of the evidence introduced at the trial which resulted in defendants' convictions is essential to an understanding and evaluation of their argument: On January 24, 1958, Edward J. Davis was fatally shot at his toy store in Camden. 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 Godfrey's name, the three defendants were apprehended. All of the defendants confessed that they attempted to rob Davis in his toy store and that during the attempt Johnson shot him. The content of their confessions was substantially as follows: On the afternoon of the killing, they met at Cassidy's home where they planned the robbery. Godfrey drove Cassidy and Johnson to the vicinity of the toy store. While Godfrey remained in the parked car, Cassidy and Johnson, each carrying a gun, entered the store. During the course of the attempted holdup, Johnson shot Davis. Cassidy and Johnson then rejoined Godfrey in his car and the three fled the scene. The details of the confessions together with corroborative evidence introduced at the trial are fully set forth in our opinion on defendants' appeal to this court in State v. Johnson, supra, 31 N.J., at pp. 494 to 504.
At the hearing on their motion for a new trial, all of the defendants testified that they were beaten by the police; that at the time of their interrogations they were under the influence of narcotics; that they were deprived of sleep and food; and that they were continuously questioned by the police who "fed" them the story which ultimately appeared in their confessions. The defendants also testified to what they now claim is the true version of the homicide. They said that the purpose of the visit to Davis' store was not to commit robbery but to collect a debt. Johnson testified to the following: He had purchased narcotics from one Noah Hamilton. Three months before the homicide, Hamilton suggested that Johnson deliver narcotics for Hamilton
and Davis, and took Johnson to Davis' store where it was arranged that Johnson would make deliveries and be paid by Hamilton. Thereafter, he made deliveries, and on each occasion was paid by Hamilton. He was given narcotics by Hamilton for delivery and had no further contact with Davis. On the day of the homicide Johnson visited Hamilton to collect $15 for a delivery made the day before. Hamilton told him to collect from Davis. After leaving Hamilton, Johnson returned home where he smoked three reefers and took nembutal pills, all given to him by Hamilton. He then went to Cassidy's house because he wanted company when he went to collect the debt from Davis. When he arrived at Cassidy's, Godfrey was pulling up in his automobile. Johnson and Cassidy got into the automobile with Godfrey, and that is the last Johnson remembered. The next thing he remembered, it was the following morning and he was in his sister's home with a hangover.
Godfrey and Cassidy testified at the hearing below similarly to Johnson. Both said the purpose of the visit to the toy store was to collect a debt owed by Davis to Johnson; that they did not know Davis and that they had never been in his store. Cassidy testified to the following: When he and Johnson entered the Davis store, Cassidy was not carrying a gun. Cassidy looked over the toys while Johnson and Davis talked. Davis ordered Johnson out of the store. Cassidy and Johnson left but when they were outside Johnson announced he was returning. They went back in the store. Davis swore at Johnson. The two struggled and the gun in Johnson's ...