For affirmance with directions -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Francis, J.
On February 21, 1962 at about 1:50 A.M. Lester Drew was shot and killed in a small hotel owned by him in Elizabeth, New Jersey. According to Mrs. Drew, who was present at the time, the killing took place in the course of an attempted robbery. The police were notified by telephone as soon as the gunman and his companion or companions left the building. Within a few minutes, as police officers were proceeding to a designated location to assist in establishing a roadblock, they saw a red and white automobile containing four men and traveling at about 20 to 25 miles an hour. They began to follow it. As they did so, it speeded up to 35 to 40 miles per hour. A second police car appeared, cut off and stopped the pursued car. The officers alighted and as they approached, the car started to back up, then stopped again. As they neared it they heard a voice say, "Don't shoot, I got the guns," or "Don't shoot, I've got both guns."
The men in the car were Gerue Sullivan, Joseph Aiken, George Taylor and Richard Garner; Taylor was the driver. They were arrested and they and the car were searched. Two guns, one of them a pearl-handled revolver, were taken from Sullivan. A toy pistol with fresh blood on it was found under the right rear seat. Garner had been sitting there and when arrested his right wrist was bleeding, apparently from an old laceration which had reopened. The men were taken to head-quarters where, within a very short time, Aiken, Sullivan and Taylor confessed they had planned with one Hilliard Brown to rob Drew, and they were attempting to do so when Sullivan shot and killed him. Aiken's confession implicated Garner as a participant in the fatal attempt. He did not involve him as one of the original planners of the crime, but as joining the enterprise on the night of its attempted execution.
Murder indictments were returned against the four men, counsel were assigned and the matter set down for trial on October 15, 1962. At the outset of the trial and before the jury impaneling had begun, counsel for Sullivan and Aiken applied to the court for leave to withdraw their not guilty
pleas and to enter pleas of non vult to the indictments. Before accepting the pleas, the court examined each of the two men at length to satisfy himself that they fully understood the nature, significance and consequences of their request, and that no promises or agreements had been made with respect to the sentence to be imposed. Both Sullivan and Aiken told the court they had discussed the nature and significance of the plea with their attorneys and understood (1) that a non vult plea is the equivalent of a plea of guilty for purposes of sentence, (2) that if the court accepts the plea it has the authority to sentence and nothing remains but the imposition of sentence, and (3) that the sentence could be either life imprisonment or a sentence to State Prison for a term of not more than 30 years. They also advised the court specifically, in answer to his questions, (1) that no promises had been made to them by the prosecutor or anyone else with respect to sentence as an inducement to enter the plea, (2) that no one had exerted any force, duress or compulsion of any kind to induce them to enter the plea, (3) that the pleas were being offered by them freely, voluntarily and understandingly in all respects, and (4) that each of them had discussed with his attorney all of the matters mentioned before the morning of trial. The court inquired of their attorneys if the defendants had filled out and signed the form used in such plea cases which contains substantially the same questions as those put by him in open court. He was told it had been done. The prosecutor then asked each of the two defendants if he understood all the questions appearing on that form. Each said he understood and had no questions to ask about it.
In addition to the inquiry by the court and prosecutor, counsel for Aiken made a long statement in his presence to the effect that they had discussed the matter at length, that Aiken understood and intended that the plea of non vult be considered "an admission of the commission of the offense" charged in the indictment. Counsel added, "I say in the presence of the defendant that there have been no promises made to him by anyone to induce this plea," and that Aiken did not
execute the form referred to by the court until counsel was satisfied from their discussion Aiken did so freely, voluntarily and understandingly.
After the questioning was completed and the prosecutor recommended acceptance of the pleas, the court announced he was satisfied the defendants understood fully the action they were taking and its significance and therefore he would accept the pleas.
The trial thereupon proceeded against the remaining defendants. Sullivan and Aiken were called as witnesses by the State. At its conclusion the jury found Taylor and Garner guilty of murder in the first degree and recommended life imprisonment. In due course that sentence was imposed. Sullivan and Aiken also were sentenced to life imprisonment on their pleas of non vult.
Shortly after the sentencing Sullivan and Aiken recanted their confessions and their testimony at the trial saying there had been no plan to rob Drew. Instead they alleged they had visited him to collect money due from him and the shooting fracas had been precipitated by Drew in the course of his refusal to pay the debt. They maintained also that Taylor and Garner had no part at all in the affair, and that they had lied about the planned and attempted robbery and about Taylor's and Garner's participating in it. Relying on the recantation, the convicted defendants moved for a new trial. After a full hearing the trial court denied the motion.
Both defendants have appealed directly to this Court as of right. R.R. 1:2-1(c). A number of trial errors respecting the admission or rejection of evidence, the charge of the court and the denial of certain motions, including the refusal to grant a new trial, are presented as the basis for reversal. In addition to the briefs filed by Garner's attorneys, he has submitted a memorandum alleging further grounds for a new trial. In reviewing the convictions we have given consideration to all assertions of error.
Barbara Drew, wife of the victim, testified that at about 1:50 A.M. on February 21, 1962, a man came into the Lester Hotel and requested a room for two nights. She told him there was a room available but just for one night. At this, the man grabbed her with his left hand, produced a pistol with his right hand, and said it was a holdup. They had walked to the rear of the building where the Drew apartment was located when Lester Drew appeared. He, too, was told it was a holdup. At this point Mrs. Drew said she saw another person standing across the room. She could not identify him but she did hear him say, "He will kill you." Then "the guns" began to fire. Her husband slumped to the floor and the gunman ran out the same door he used to enter. She could not say if her husband had a gun, but she recognized one revolver produced at the trial as belonging to him and to her. As soon as the men left, she called the police.
Mrs. Drew's sister, Miss Jeanette Merriweather, was staying at the hotel at the time. Her room was on the same floor, near the hotel office and close to the Drews' quarters. She was awakened by a scuffling noise, got up and opened her door. She heard shots and closed the door again until the shooting ended. Then, as she heard her sister call, she opened the door and saw two men run or bump into each other near the office desk. She saw a hand of one of them "go up" to the nearby Venetian blind, the inference being that he had been knocked off balance. A hat fell off one of them as they collided. (It later proved to be Aiken's hat; and, as has been noted above, when Garner was arrested his right wrist was bleeding from an old infected and unhealed laceration which had reopened, and there was fresh blood on the toy pistol found underneath the seat of the car where he was sitting.) Neither Mrs. Drew nor Miss Merriweather could identify any of the men.
There is no doubt Aiken and Sullivan were potent witnesses for the State. If the jury believed them, there was ample basis for the conviction of Garner and Taylor.
According to Sullivan, sometime in February 1962 he, Aiken, Taylor and Hilliard or Helius Brown discussed holding up Drew at his hotel. On that occasion Sullivan, Aiken and Brown drove to the vicinity and Aiken went in and looked the hotel over. Taylor did not accompany them but it is clearly inferable from all the proof that he was aware of the criminal proposal before the night of the attempted robbery. Furthermore, Aiken testified he, Sullivan and Taylor had discussed it about two or three weeks earlier.
On the night of February 21, Sullivan said Taylor (whom he had met about four years earlier) came to his apartment in New York and asked if he was ready to go to Elizabeth. Taylor had driven to Sullivan's apartment in a borrowed car. Aiken had accompanied him but apparently stayed with the car while Taylor went in. Sullivan produced a revolver, loaded it in Taylor's presence, put it in a small paper bag and handed it to him. When Sullivan and Taylor came out, the three men talked about borrowing some money. While they were talking Taylor had the gun out of the bag. Then he put it back in the bag and hid it under the hood of the car. As will appear hereafter, Taylor denied any knowledge of the gun. He admitted, however, receiving a "package" from Sullivan who asked him to hide it, hinting that it contained narcotics. After this they drove to a bar where Sullivan met Garner whom he had known for about five months. With Garner's assistance, four dollars were borrowed and given to Taylor to pay for gasoline and tolls. Sullivan invited Garner along so he could get the money back. He testified he told Garner he was going "to pick up some money in Jersey from a girl." And he said he did not inform Garner at any time about the intended holdup.
Sullivan and Aiken are at odds about Garner's participation in the holdup. Aiken, who had never met Garner before, testified in this connection that when Sullivan encountered Garner in the bar, he brought him out to the car where Taylor and Aiken were sitting. Aiken told him they had "a job to do over in Elizabeth"; they were going to hold up Lester Drew,
and he asked if Garner wanted to go along. Garner said, "Sure, I will go." It was after this conversation that Garner borrowed the four dollars for transportation expenses.
The four men proceeded to Elizabeth and parked the car near Drew's hotel. Taylor retrieved the gun (he said "package") from its hiding place. He gave it to Sullivan who removed it from the bag and put it in his overcoat pocket. Under the plan, according to Sullivan, he was to go into the hotel first and Aiken was to follow him. If there were a number of people inside he would leave in time to stop Aiken from entering. Sullivan testified he entered the hotel and grabbed Mrs. Drew, as she said, announced the holdup, and pushed her toward the rear of the building. Drew appeared with a gun and fired. There was an exchange of shots and Drew fell. Sullivan pushed Mrs. Drew aside, wrenched Drew's gun from his hand and ran out, using the door through which he entered. It is obvious from his testimony that he left alone and did not bump into anyone in or near the office while doing so. He ran to the car and seeing the other three men there, he said, "Let's go, I have shot that man." Taylor drove off and was heading toward Newark when they were apprehended.
While Sullivan was on the witness stand, he identified the hat found on the floor of the hotel office as having been worn that night by Aiken. He also identified several pieces of cord as having been carried by Aiken to be used to tie up persons in the hotel.
Aiken corroborated Sullivan that Taylor was in on the planning of the crime and its execution. Unlike Sullivan, however, Aiken plainly involved Garner as a participant who joined them the night of the crime with full knowledge of what was going to happen. According to Aiken, when they arrived near the hotel, Sullivan left the car carrying the pistol. He walked to the hotel with Garner and Aiken 25 to 30 feet behind. When the latter two entered Sullivan was already inside. Aiken saw the shooting take place. When the shots were fired they rushed to get out, Aiken going for a
window and then for the door; Garner heading for the door. In the process Aiken's hat fell off. He pointed it out in a police photograph taken later at the scene, and then identified the hat itself which was put in evidence by the prosecutor. He admitted carrying the cord (also put in evidence) to be used in tying up Drew; and he identified a bag which had been brought along to carry the loot.
The testimony of Sullivan and Aiken was attacked sharply on cross-examination. Although some conflicts appeared, chiefly as to Garner's participation, in the main their version of the criminal event withstood the attack, certainly to the extent that the issue of their credibility was for jury appraisal.
Both Sullivan and Aiken had criminal records. Sullivan had been convicted of theft, forgery and two gambling offenses. Aiken's convictions were for robbery, narcotics (the specific nature not disclosed) and for violation of lottery or numbers statutes. These records were exposed on direct and cross-examination. In addition, both men were cross-examined about their non vult pleas and whether they had been told what their sentence would be. Each one indicated he had no specific knowledge or agreement on the subject. Sullivan was aware the sentence "can go up to life; I can get life." Aiken said the judge told him he "could get life up to 30 years." Obviously to aid an attack on their credibility, the interrogation was designed to discover if a reward in the way of a modest sentence had been promised or was hoped for in return for their agreement to testify against Garner and Taylor.
Taylor argues on this appeal that his cross-examination of the two men on the subject of agreed reward or hope of reward in the matter of sentence was unduly restricted. Our examination of the record reveals no prejudicial error in that regard. It may be noted also that the trial judge charged the jury as to the credibility of Sullivan and Aiken strictly and clearly in accord with State v. Spruill, 16 N.J. 73 (1954), and State v. Begyn, 34 N.J. 35 (1961). He instructed them that the testimony should be given close scrutiny
in order to determine if either Sullivan or Aiken was influenced in giving it by the strong motive of hope of favor or pardon. He said also the fact that one who has admittedly participated in a criminal offense has turned State's evidence naturally affects injuriously the credibility given to his testimony. And he concluded by telling them to scrutinize the testimony of Sullivan and Aiken and assess it in the light of their interest, if any, in the outcome of the case. Under the circumstances, we find no error in the court's handling of the problem of their veracity as it might be affected by their willingness to appear as prosecution witnesses.
Within a few hours after his arrest, Taylor gave a statement to the police. In the fore part of the statement he denied any knowledge of the planned holdup. His position was that he drove to Elizabeth in company with Sullivan, Aiken and Garner (whom he met for the first time that night) at Aiken's suggestion. They had been looking for a dice game in the Bronx and finding none, Aiken proposed driving to Elizabeth, not giving any reason for doing so. Taylor proceeded as Aiken directed and parked near a bar, a site selected by Aiken. The three men left the car and walked in the direction of the bar. Taylor remained. In five or ten minutes they returned and one of them suggested going to Newark. Taylor drove a short distance when the police officers were encountered, at which one of the men in the rear seat said, "Stop, stop, they got us, I just shot somebody." Until this happened Taylor said he did not know his companions had any guns or that a robbery had been planned.
The record reveals that at this juncture of the police questioning, a portion of Aiken's confession was read to Taylor. After hearing it, Taylor capitulated and agreed with Aiken's version of their planned holdup. His statement then continued in question and answer form. In substance, it admits the previous planning of the robbery and his participation in it as the driver of the car on the fatal night. When the State completed its case with respect to the voluntariness of the confession, Taylor was given the opportunity to take
the stand and deny or attack its voluntariness but he declined to do so. There being no contradictory proof on the subject, the trial judge found (out of the presence of the jury) that the statement was freely and willingly given and admitted it in evidence. If Taylor intended to contest the admissibility of his confession on the ground that it was involuntary, he should have done so at that time. State v. Tassiello, 39 N.J. 282, 292 (1963).
The State showed that after the arrests, two of the police officers took Garner to the hospital for treatment of the reopened laceration of his right wrist. In addition he had slight lacerations on some of the fingers of the right hand. The thesis of the State in this connection was that when Garner and Aiken collided with each other in their hasty exit from the hotel, it was Garner's arm and hand which Miss Merriweather saw fly up to the Venetian blind. And it claims an inference is justified that the old injury was reopened at that time.
Taylor contends the trial court should have granted the motion for judgment of acquittal which was made at the close of the State's case on the ground the proof was inadequate to support a conviction. There is no merit in the contention. The proof and the inferences therefrom clearly pointed to Taylor's involvement in the crime. State v. Fiorello, 36 N.J. 80, 86-91 (1961), cert. denied 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2 d 396 (1962).
In defense Taylor denied participation in the crime. He said Aiken came to his home in New Brunswick between 5:00 and 6:00 P.M. on February 20. They watched television for a while and discussed a debt of $60 which Aiken owed Taylor. Aiken wanted to go to New York so Taylor borrowed a friend's car. In New York they looked up a friend of Aiken from whom he thought he might borrow the $60. The attempt was unsuccessful so they sought another of Aiken's friends. This one was Sullivan whom Taylor had met on one previous occasion. Taylor rang Sullivan's door bell and waited for him to come down. He denied going into the apartment or
seeing Sullivan load a gun there. On Sullivan's arrival, the three men discussed borrowing some money. Sullivan told Taylor he had a package he wanted "stashed" away because he did not want it found by narcotics detectives. The package was handed to Taylor and he hid it under the hood of the car. He testified at the trial he did not see or know what its contents were.
Thereafter they went to the bar mentioned above. Sullivan entered in pursuit of a loan and returned with Garner who finally produced four dollars from a friend of his. Then, according to Taylor, Sullivan persuaded Garner to come along to Elizabeth where he was going to borrow money from a girl. On arrival in Elizabeth, Sullivan told Taylor where to park and he did so. He insisted there was no discussion at any time about an intended holdup, and he did not know of any such plan. When they parked, Sullivan asked for the hidden package. Taylor obtained it and turned it back to Sullivan, still not knowing what it was. Sullivan and Aiken then walked in the direction of a nearby bar. He and Garner remained in the car with the motor off and the radio on. He never left, and Garner left only for a few minutes to answer a call of nature. Garner returned to the car and about five minutes later Sullivan and Aiken returned, at which time Aiken suggested going to Newark. Nothing else was said until the police intervened when, according to Taylor, Sullivan yelled, "Stop the car. That is the police, they got us." Taylor said, "What do you mean, got us?" To which Sullivan replied, "A guy shot at me back there when I was away from the car and I shot back and I hit him."
With respect to his confession, the voluntariness of which had not been challenged by any affirmative evidence at the proper time in the trial, he suggested some coercion had been a factor. He testified the confession was drawn like Aiken's because one of the detectives accused him of lying, said he did not want "to get rough with him" but his statement had to conform to Aiken's. Thereafter he went along with whatever
the detective "put down." He was tired and nervous and did not read it very well before signing.
Neither before Taylor took the stand nor at the conclusion of his testimony was there a suggestion that an attack was being made on the voluntary character of his confession. No reason was advanced why, if its voluntariness was in question, the supporting evidence was not offered at the proper time in the trial. When such an issue is to be raised, the long established procedure for handling the admissibility of confessions must be followed. Counsel cannot be permitted for tactical reasons to withhold such evidence when the "trial within a trial" of the competency of the confession takes place, and then after the court has ruled the statement admissible, seek to present the allegedly contesting proof during the defense. As we said plainly in State v. Tassiello, a defendant should not be allowed to withhold the proof and offer it later as part of his defense, except for some extraordinary reason which appeals to the trial judge's discretion and sense of justice. 39 N.J., at p. 292, fn. 2.
There was no motion at the end of Taylor's testimony or at the end of the case to strike the confession from the record as involuntary. Study of all the evidence gives the impression the defense was primarily interested in assailing the credibility of the confession rather than its voluntariness. In any event, the trial court's finding of voluntariness is not directly attacked on this appeal, and we have no occasion to interfere with that finding. The ultimate decision as to voluntariness was left to the jury in the court's charge, and we find no basis for criticism of the manner in which the jury was instructed on the subject. Moreover, on the issue of credibility, it may be noted that Taylor had two previous convictions of crime, one for grand larceny and the other for breaking and entering. Aside from any possible adverse effect the convictions might have had on his veracity, there is serious doubt that a jury would have considered his explanation of the confession plausible. Aiken had inculpated himself in a felony murder, an offense punishable by death.
Taylor said he agreed with Aiken's confession which clearly involved him also, because Aiken was "a good friend" and "I didn't figure I was involved in nothing. I didn't want to say nothing to hurt him no kind of way, that is why I went along with it. The detective say mine had to be just like his. That is why I went along with it."
Another circumstance which a jury might well have regarded as reflecting adversely on Taylor's veracity was his testimony about the handling of Sullivan's gun on two occasions before the holdup. It will be recalled that Sullivan had put it in a paper bag. He said when he got in Taylor's car in New York they talked a while before starting out to borrow some money. During this period Taylor had the gun out of the bag and in his hand. Taylor conceded in his testimony that they did sit in the car and talk for a time but denied seeing the gun. However, the paper bag was given to him at that time and he did hide it under the hood of his car. He handled the paper bag again in Elizabeth when he took it from the hiding place and handed it to Sullivan. Obviously a jury could sensibly believe that he must have realized in handling the paper bag that it contained a gun. The prosecutor in his summation made a point of this by picking up a paper bag in evidence (the one brought along to hold the loot) and putting the gun inside it. He asked the jury to do it in the jury room "to test the credibility" of Taylor. The trial court sustained the defense objection to the demonstration and instructed the jury to disregard the suggestion. In spite of the ruling, the prosecutor's action is made a ground of appeal. Aside from the fact that the prosecutor's demonstration and suggestion seem to be sensible and permissible argument, it cannot be that any possible error could have survived the court's stricture on the prosecutor.
In connection with guns, as has been noted above, the police found a toy pistol stained with fresh blood in the rear of the car where Garner was sitting. According to ...