For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J. Haneman, J. (concurring). Haneman, J., concurring in result.
The defendants, Martin Reynolds and Michael Reynolds, brothers, were convicted of the robbery-murder of Fred Garcia. The jury did not recommend life imprisonment, and the defendants were sentenced to death. The defendants appeal to this court as of right pursuant to R.R. 1:2-1(c).
The facts on the issue of the guilt of both defendants were substantially undisputed; in fact, defendants frankly admitted their guilt and appealed to the jury to spare their lives. In their plea for mitigation of punishment, they introduced background evidence of their inadequate home life, slum environment, their histories of prior anti-social behavior and their addiction to narcotics.
The testimony of the eyewitnesses to the robbery and shooting established the following facts. On April 1, 1962, at about 7:00 P.M., Fred Garcia, 69 years old, was making sandwiches behind the counter of his confectionery store in Newark. His daughter Geraldine was behind the cigar counter near the front of the store. Several young boys were also in the store. The defendants entered the store; Martin went to the rear and stood in front of the counter opposite Garcia, and Michael stood by the cigar counter. Martin pointed a gun at Garcia and said, "Don't move. This is a stickup." Michael went behind the cigar counter, pushed Geraldine
aside, opened the cash register, and took $51 from it. When Garcia saw his daughter being pushed, he headed toward Michael with a knife in his hand, whereupon Martin shot at Garcia, hitting him in the back. Michael then ran out of the store, and Garcia and Martin ran to the door. A scuffle followed in which Martin fired the gun again and then ran out of the store. Garcia took a few steps and collapsed behind the counter.
After the shooting defendants went directly to the home of Dolores Brown, Martin's girl friend. She testified that Martin told her there had been a holdup and he had shot a man. He gave her the gun to keep for him, and the brothers then left in a taxicab. The following week, after a detective had visited her house, Dolores threw the gun into a sewer where it was later recovered by the police.
Within a few minutes after the shooting the police were on the scene and called an ambulance. The doctor who arrived with the ambulance pronounced Garcia dead. An autopsy performed later that night disclosed that death was due to a wound in back of the right chest caused by a bullet which perforated both lungs, with massive hemorrhages into both chest cavities. There were no blackening, scorching, or tattoo marks on the body, indicating that the weapon had been fired at least 20 inches away from the body. A bullet was found under the skin just below the left armpit.
Shortly after their arrival, the police searched the premises and the vicinity for expended bullets but found none. After questioning the eyewitnesses, they discovered a knife on the floor behind the counter.
On June 15, 1962 both defendants admitted their guilt in oral and written statements to the police. It was conceded that these statements were voluntary, and they were admitted into evidence without objection.
In his statement, Michael said that he lived in New York City and worked as a longshoreman; that on Sunday morning, April 1, 1962, he went to Newark to the home of his mother and father, with whom Martin was living. Dolores
Brown came to the house in the early afternoon. They sat and watched television and drank some gin. At about 6:00 P.M. he and Martin went with Dolores to her house where they listened to some phonograph records. Dolores fell asleep, and the brothers decided to go out and "make some money." Martin had a gun and suggested they stickup somebody with it. The brothers left the Brown house and worked out their plan as they walked down the street. Michael said they should find a store where there was an old man because he would be more afraid of a gun. Michael was to get the money and Martin was to hold the gun on the man. The defendants found a confectionery store open and looked inside. They saw an old man, a woman, and four customers in the store and decided to wait until the customers left. About five minutes later they went into the store. Michael's version of what happened in the store coincided substantially with the accounts of the eyewitnesses. After leaving the store the defendants returned to Dolores Brown's house and called a cab. In the cab the defendants split the money that Michael had taken from the store register. They stopped at a hot dog stand, and then Michael took a bus to New York.
Martin's statement related substantially the same facts as that of Michael regarding the events of the day. In addition, Martin stated that when his brother was bent over the cash register, Garcia ran at his brother with a knife, and Martin "tried to shoot him in the arm to stop him." When he attempted to leave the store, Garcia tried to cut at him with a knife, and he shot the gun again.
Shortly after the above statements were taken, the defendants were examined by Dr. Marcus H. Greifinger, Chief Surgeon of the Newark Police. Dr. Greifinger testified that both defendants admitted their participation in the robbery and shooting to him. The doctor found no evidence that either defendant had been mistreated in any way. Michael had numerous old tracks on both forearms with one recent scab on an old track of the right forearm. Martin had two old tracks on his left forearm. Tracks, the doctor explained, are
markings on the skin over a vein which has been damaged by the introduction of foreign substances. Later that evening, at the request of the police, both defendants were examined by Dr. Samuel R. Kesselman, a psychiatrist. The following day the defendants re-enacted the crime and were arraigned.
The theory of the defendants' case was that Michael was a narcotics addict suffering from withdrawal symptoms on the day of the crime and that the robbery was motivated by a desperate urge to get money to buy narcotics to relieve his suffering. Further, the shooting was prompted by Martin's protective concern for his brother; Martin did not intend to kill Garcia but meant only to disable him from attacking Michael. The defense also urged that the defendants were the victims of an inadequate home life in a slum environment which was to a large extent responsible for their anti-social behavior, which they pointed out had begun when they were nine or ten years old.
Dr. Aaron Smith, a psychologist, who had examined the defendants shortly before the trial, testified for the defense. He related at length the histories he had obtained from the defendants, their schooling, home environment, their membership in street gangs, their prior brushes with the law, and their use of narcotics. The records of Annandale Reformatory, where Martin had been incarcerated on two occasions, and the records of the Essex County Juvenile Court regarding his prior offenses were introduced in evidence on his behalf. Dr. Smith used these records in arriving at his diagnosis. He interpreted the background of both defendants and gave his opinion of the psychological and social factors which predisposed them to the commission of a violent crime. In his opinion, the brothers were the victims of inadequate parents who could not provide the time and love required in raising the brothers. As a result, their only source of human affection was each other, and an abnormal relationship developed between them -- "More than just a brother relationship, it was brother, mother and father all rolled into one." Dr. Smith concluded from his examination of the defendants and their
prior history that both of them were exceedingly immature, distorted and dependent people.
Dr. Robert T. Latimer, a psychiatrist, was also called as a witness for the defense. He had interviewed the defendants and their parents a few weeks before the trial. He related the history given by them of their home and community environment, the defendants' prior offenses and their addiction to narcotics. He believed that there existed between Martin and Michael an abnormal relationship of love and affection, that Martin could not bear to see his brother suffer from the pains of withdrawal and, further, that Martin's shooting was an automatic response to Garcia's attack upon Michael. Dr. Latimer found that both defendants had below-average intelligence and sociopathic personalities. In his opinion the progressive anti-social behavior of the defendants, which had been allowed to proceed substantially unchecked, inevitably led to violence.
Martin Reynolds testified that his brother was a narcotics addict suffering from withdrawal symptoms on the day of the crime. The brothers were broke and unable to borrow money and planned the holdup to get money to buy narcotics to relieve Michael's suffering. Martin explained his failure to tell the police these facts when he gave them his statement by saying he was nervous at the time. When he left the house of Dolores Brown after the shooting, he went with his brother to New York to get a fix. In his written statement, he had said he went home to bed after leaving his brother in Newark. His failure to tell the truth in his written statement, he said, was due to his fear of getting into "deeper trouble" and his desire to hide his use of narcotics from his parents. Martin also testified that he was brought up in a rough neighborhood, that he joined a gang and drank wine when he was ten, that at the age of eleven or twelve he was smoking marijuana. He was sent to Annandale for stealing, released after fifteen months, and five months later was sent back for breaking and entering. On his second release he began using "goof balls" and "bennys," and five months prior to the robbery-shooting
he had begun using heroin. Martin was nineteen years old at the time of the crime; he had left school in the eighth grade at the age of fifteen.
Michael testified that he was forced to join a street gang when he was eight or nine years old and that he was drinking wine at nine. He started smoking marijuana when he was ten or eleven and then progressed to "goof balls," to sniffing heroin at fourteen, and to "mainlining," i.e., injecting heroin into the veins, when he was nineteen or twenty. Michael was twenty-three at the time of the crime. He was permitted to show the jury his bare arms and point out the needle tracks on them. He further testified that when he was about fourteen years old he was arrested for stealing cars -- "a regular gang activity." A year later he was arrested again for the same type of offense. He also testified that he was picked up for rape, but when he got to court, he was charged only with trespassing. On June 6, 1962 he was arrested on a narcotics charge. Michael testified that on the fatal day of April 1, 1962, he went to his mother's house to borrow money for narcotics because he was suffering from withdrawal symptoms. He admitted that his written statement said nothing regarding his withdrawal symptoms, but explained that he had previously told the police of that fact and that they didn't ask him about the withdrawal symptoms when the question-answer statement was taken.
Defendants' parents also testified as to the home life they provided for the defendants and the "rough neighborhood" in which they lived.
In rebuttal, the State offered the testimony of Dr. Samuel Kesselman, the psychiatrist who examined the defendants on the evening of June 15, after they had given their written statements to the police and had been examined by Dr. Greifinger. Dr. Kesselman recited the details of the offense as related to him by each of the defendants. The facts told to Dr. Kesselman substantially coincided with those given the police earlier that day. Dr. Kesselman also recited the family history and prior incidents of anti-social behavior of the defendants
which they had given to him. The doctor diagnosed Martin as "a sociopathic personality disturbance, anti-social reaction type," and Michael as having "sociopathic features in an emotionally unstable personality." In his opinion, the defendants were not motivated unconsciously by any neurotic compulsion, but their motive for the robbery was simply to obtain money.
The defendants contend that at the outset of the trial the court committed error when in the presence of the jury it ruled that armed robbery was a felony. Counsel for Michael, after admitting his client's guilt of robbery, attempted to distinguish between an armed robbery in which a death occurs and the crime of premeditated murder. When the prosecutor objected that he need not prove premeditation under the State's theory of the case, a colloquy ensued among both defense counsel, prosecutor, and the court in which the law of felony murder was discussed. Defense counsel took the position that robbery was a high misdemeanor, not a felony, and that the robbery which they admitted was committed by their clients amounted to murder only by virtue of the statute and not because robbery is a felony. The court agreed but nevertheless concurred with the prosecutor in his characterization of robbery as a felony. Defense counsel now contend that the use of the word "felony" by the court might have led the jury to believe that the robbery was an aggravated one and might have thus predisposed the jury to impose the death penalty. This contention is of no substance since the indictment itself, which had been read to the jury, contained the word "feloniously." Moreover, the word "robbery" in the first-degree murder statute, N.J.S.A. 2A:113-2, means robbery at common law, State v. Butler, 27 N.J. 560, 590 (1958), and robbery at common law was a felony. Accordingly, the court's ruling was entirely proper. In any event, we cannot agree that the word "felony" would be more
inflammatory than the descriptive terms "robbery" and "armed robbery," which were used unhesitatingly by defense counsel in their opening statements.
Defendants assert that the court improperly limited their closing arguments to the jury.
Counsel for Michael, in arguing for leniency for his client, pointed out that capital punishment has been abolished and cannot be inflicted in many parts of the world, with or without mitigation. He then proceeded to quote a resolution of a religious convention indicating opposition to capital punishment. The prosecutor interrupted the quotation, asserting that the matter was not proper comment in view of the New Jersey law. The court sustained the objection, and counsel responded that since the jury had both the right and the duty to decide whether to impose capital punishment, he proposed to tell them "that the taking of human life is irreligious, that it is barbaric, brutal." Again the court sustained the prosecutor's objection.
Clearly the court was correct in prohibiting such a discussion. The law of the State must be administered as it presently exists, and the Legislature has provided for capital punishment in appropriate cases, N.J.S.A. 2A:113-4. Of course, defense counsel may urge that mitigating circumstances exist in the particular case before the jury which would justify the recommendation of life imprisonment. However, to urge that capital punishment per se is wrong and should be abolished is to suggest to the jury that they may go beyond their proper function and invade the province of the Legislature. It is improper for counsel to imply to the jurors that they have such power. As said by Justice Traynor in People v. Love, 56 Cal. 2 d 720, 16 Cal. Rptr. 777, 366 P. 2 d 33, at p. 35 (Sup. Ct. 1961), "Juries in capital cases cannot become legislatures ad hoc, and trials on the issue of penalty cannot be converted into legislative hearings." See also
Commonwealth v. Sykes, 353 Pa. 392, 45 A. 2 d 43 (Sup. Ct. 1946); Knowlton, "Problems of Jury Discretion in Capital Cases," 101 ...