For granting motion for affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For denying motion for affirmance -- None.
[37 NJ Page 19] The defendants were convicted of murder committed in the course of the robbery of their victim, and
the jury not having recommended life imprisonment, they were sentenced to death. The judgments were affirmed. State v. Johnson, 31 N.J. 489 (1960).
Subsequently defendants sought a new trial on the ground of newly discovered evidence, consisting of a claim that in truth there was no holdup; that the victim was a peddler of narcotics; that one of the defendants called upon the deceased to collect moneys due him in connection with the narcotics business, the other defendants merely accompanying him on that peaceful mission; and that the shooting arose out of a scuffle between the deceased and his creditor. Defendants had not testified at the trial, and their confessions which were there received told the story of a killing in the course of a robbery. Defendants in fact had been granted pretrial inspection of their confessions. State v. Johnson, 28 N.J. 133 (1958). The new factual theme, thus advanced on the motion for a new trial, was a palpable fabrication. The motion was denied.
Defendants appealed from the denial of that motion, and on the appeal advanced additional contentions. One was that defendants should be granted a new trial to the end that they may offer "background" evidence under the holding of State v. Mount, 30 N.J. 195 (1959), which was decided after the trial of the indictments in the present case. As the issue was presented, we had no occasion to consider whether Mount should receive retroactive application. In fact counsel could not suggest at the oral argument what evidence he had in mind. The denial of the motion was affirmed, 34 N.J. 212 (1961), and on December 4, 1961 the United States Supreme Court dismissed an appeal to it for want of a substantial federal question and denied certiorari. 368 U.S. 145, 933, 82 S. Ct. 247, 370, 7 L. Ed. 2 d 188, 195.
Thereafter defendants again sought a new trial, upon the basis of affidavits setting forth what they would prove under the Mount opinion. The trial court denied the motion. 71 N.J. Super. 506 (Law Div. 1962). This appeal followed.
We authorized the State to move to dismiss the appeal for want of merit and directed written and oral argument upon the merits. We approved that course to expedite the matter. We have experienced in this and in other capital cases a procession of post-conviction applications which seek to present, usually in piecemeal fashion, ideas conceived by successive counsel. The procedural steps, appropriate for the review of a judgment of conviction, here lead to inordinate delay which contributes nothing to a fair determination of the cause. The State's motion perhaps should, more accurately, be described as one to affirm the order below, rather than to dismiss the appeal, and since there has been full argument upon the merits, we will so treat the motion.
The problem of retroactive application of judicial decisions is exceedingly difficult. No definitive formula is possible. The issue is one of fairness under the total circumstances. The decision in Mount dealt with the reception of evidence in an area heavily laden with judicial discretion. We were aware of conflicting views at both the trial and appellate levels with respect to the amount of background material which should be received for consideration by the jury on the question of punishment. In Mount proof in that category had been rejected at the trial. We reversed the conviction for other reasons, and since a retrial would follow, we expressed our disapproval of the limitations upon the jury's consideration as to punishment which had been stated in State v. Wise, 19 N.J. 59, 107 (1955).
The issue thus dealt with in Mount does not involve the constitutional concept of a fair trial or the jurisdiction of the court. The Legislature could decree that punishment be determined solely upon the story of the murder itself. The question was whether the Legislature contemplated that some evidence might be offered as well upon the issue of punishment. We knew that some background evidence was routinely accepted by trial judges notwithstanding State v. Wise. We recognized room for reasonable dispute upon the breadth of such proof, and our preference for a wider latitude
in a trial judge by no means meant that a different view of the situation could be said to spell out fundamental unfairness.
Not every change in a principle of law is so fundamental in its reach that all completed criminal trials must or should be reopened. See Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2 d 417, 421 (1962); Sunal v. Large, 332 U.S. 174, 181, 67 S. Ct. 1588, 91 L. Ed. 1982, 1989 (1947). Recently, in another situation, a majority of this court expressed a preference for a new approach to the charge to the jury with respect to confessions. We directed that course for the future but declined to reverse the ...