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.
This is an appeal by the defendants Martin Reynolds and Michael Reynolds from the trial court's denial of their applications for post-conviction relief and the denial of their motions to stay execution. We granted a stay of execution pending this appeal.
The defendants were convicted in Essex County in November 1962 for the robbery-murder of Fred Garcia. The jury did not recommend life imprisonment and the court sentenced the defendants to death. Their convictions were affirmed by this court on November 18, 1963. State v. Reynolds, 41 N.J. 163 (1963), cert. denied 377 U.S. 1000, 84 S. Ct. 1930, 12
L. Ed. 2 d 1050 (1964), rehearing denied 379 U.S. 873, 85 S. Ct. 22, 23, 13 L. Ed. 2 d 80, 81 (1964).
On November 13, 1964 the defendants applied to the judge who had presided at their trial for a hearing on their applications for post-conviction relief and a stay of execution. The judge, after considering the grounds set forth in defendants' petitions, found no merit in them and therefore no basis for staying execution. This was, in effect, a conclusion that the petitions on their face showed no basis for relief as a matter of law and so no hearing for the taking of testimony or any other purpose was required. On their appeal to this court, defendants' attorneys have submitted affidavits in support of their petitions. For the purpose of this appeal, we will consider the affidavits as if they were offered for the trial court's consideration.
The defendants contend that at the time of their confessions, they were not advised of their right to counsel or of their right to remain silent. They contend that their confessions, their re-enactment of the crime, and their identification of the gun used in the killing, all resulted from the failure of the police to advise them of their constitutional rights. The defendants do not assert that their confessions were involuntary, nor do they claim they requested counsel or that counsel had been engaged in their behalf. At the trial voluntariness was conceded and the confessions were admitted in evidence without objection. On this appeal, however, the defendants urge that Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2 d 977 (1964) announces a new rule of constitutional law which does not depend on voluntariness.*fn1 An identical position was recently taken by Sylvester Johnson and Stanley Cassidy in their appeal from a denial of post-conviction relief. We there held for the reasons set forth at length in our opinion that assuming Escobedo holds what the
defendants asserted, that rule should not be applied retroactively to invalidate convictions no longer subject to direct appeal. State v. Johnson, 43 N.J. 572 (1965). The trial of the present case was similar to that in Johnson in that the defendants in both cases made no issue of their guilt, but offered evidence in an attempt to persuade the jury to recommend life imprisonment. While the defendants' identification of the gun to the police came after counsel had been assigned to them, their admissions preceded their indictment. Therefore, even under the most favorable view of the meaning and scope of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2 d 246 (1964), it is inapplicable, as is People v. Waterman, 9 N.Y. 2 d 561, 216 N.Y.S. 2 d 70, 175 N.E. 2 d 445 (Ct. App. 1961), relied upon by the defendants. In any event, since the admission in evidence of their statements identifying the gun had little importance in the over-all picture and does not taint the reliability of the jury's determination of their guilt, retroactive application of a rule prohibiting such evidence would be unwarranted.
The defendants next contend that they were denied a fair trial because of the trial court's failure to sequester the jury after it had been selected and because the unsequestered jury could have been exposed to newspaper articles relating to the time when a man recently convicted of murder in another county could become eligible for parole. They contend that if members of the jury read the articles, it is possible that they considered the matter of parole in determining whether to recommend life imprisonment. They request permission to examine the jurors to determine whether any of them read the articles and whether the articles were a factor in their not recommending life imprisonment.
The final juror was selected for the trial of the defendants on a Friday. The trial judge, without asking the consent of the defense counsel and the prosecutor, allowed the jury to return to their homes over the weekend. The jury returned the following Monday, the trial began, and the jury was thereafter sequestered. Over the weekend both Newark newspapers
printed an article about a young man who had pleaded non vult to an indictment charging him with the murder of two girls in Morris County. Each article mentioned the ...