For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
The defendant was found guilty by an Essex County jury of murder in the first degree with a recommendation of life imprisonment. He appealed to this Court as of right under R.R. 1:2-1(c).
On March 29, 1963, at approximately 9:45 P.M., Officer Frank Shannon, a member of the Newark police department, was shot to death with his own revolver. The shooting occurred in the area of Bloomfield Avenue and Fourth Street in Newark. Though there were some conflicts in the testimony, there was sufficient evidence from which the jury could fairly find, not only that the defendant had killed Officer Shannon, but also that the killing was willful, deliberate and premeditated within the provisions of N.J.S. 2A:113-2 as properly charged by the trial court. See State v. DiPaolo, 34 N.J. 279, 295, cert. denied, 368 U.S. 880, 82 S. Ct. 130, 7 L. Ed. 2 d 80 (1961); State v. Ernst, 32 N.J. 567, 579 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2 d 374 (1961).
On March 29th the defendant was driving a 1958 Buick convertible which had been stolen several days earlier. He visited his mother, had some beer and other alcoholic beverages, and spent a good part of the day and the entire evening in the company of his girl friend Marie Del Guercio, who was married and had a child but was living apart from her husband. After having dinner with Marie at her apartment in Paterson, they drove to Newark, first having left the child with a friend of Marie. In Newark they stopped at two bars where the defendant had some drinks of scotch whisky. They returned to the Buick which they had left in a parking lot, the defendant backed out of the lot, drove up Springfield Avenue to Irvington, then on the Garden State Parkway, and then along Central Avenue in Newark, finally cutting across to Bloomfield Avenue. At Bloomfield Avenue and Fourth Street, the defendant sideswiped a parked car and at the next corner he struck two cars which had stopped for a red light. He got out of the Buick and began walking up Bloomfield
Avenue towards Fourth Street. There was conflicting evidence as to the manner of his walk with the State's testimony supporting its assertion that the defendant's appearance and walk were normal. At one point Marie testified that when the defendant got out of the car he was white, "acted like really nothing happened," and said "Get out of the car Marie, come on." At another point she testified that although the defendant did not fall "against anything" he did appear unsteady.
At the time the defendant ran into the cars at Bloomfield and Fourth, Officer Shannon was in a nearby tavern owned by his brother-in-law. He had done some carpentry work there and had not been drinking. He was about to go on duty in an hour and was wearing his police shirt and pants and a beige colored jacket which was open. His police revolver was in his holster. He began following the defendant up Bloomfield Avenue towards Fourth Street and as the defendant turned into Fourth Street the officer called to him. On her direction examination, Marie testified that she heard the officer say, "stop" and when she turned around he said, "stop, I am an officer." On cross examination she testified that she remembered the officer saying, "stop" but did not recall the rest. The officer reached the defendant and a struggle ensued. There were several eyewitnesses who testified and although there were variations in the testimony their basic observations were much the same.
The defendant had managed to knock the officer down and while the defendant was on top a shot was fired striking the officer. At this point several witnesses observed the defendant, standing or slightly bent with the gun in his hand, while the officer was grabbing hold in an effort either to pull himself up or to pull the defendant down. They then saw the defendant fire two shots into the officer at very close range; medical testimony confirmed that these shots were fired from the gun while it was almost in contact with the officer and that the bullets entered the officer's body at a downward angle. An additional shot fired by the defendant from a slightly greater distance also struck the officer. Two further shots not aimed
at the officer were fired by the defendant; one was fired at a witness who was running up to see what was happening and the other was fired at the driver of a bus which had stopped at the corner of Bloomfield and Fourth. The last shot struck and slightly injured a passenger in the bus.
After the shooting, the defendant and Marie fled to an apartment at 520 No. Third Street in Newark where the defendant had recently lived with Marie's uncle. The defendant obtained the key to the apartment and Marie put bandaids on cuts which he had received over his eye and on his chin. He still had Officer Shannon's gun in his hand and he hid it behind a plywood board panel which was in the wall of the bedroom closet and which could easily be removed. The defendant and Marie then went to sleep. This was about 10 P.M. At 3:15 A.M. Detective Dell'Ermo, along with several other Newark police officers, broke into the apartment, arrested the defendant and made a search. The defendant and Marie were taken to Newark police headquarters while a police officer remained at the apartment.
At headquarters, the defendant was questioned for 20 or 25 minutes and shortly thereafter he gave a statement which was taken in question and answer form. The questions were submitted by Assistant Prosecutor Bianchi in the presence of police officers and Mr. Rostoff, a court reporter who first took the defendant's oath that he would tell the truth and then transcribed the questions and answers in regular course. At one point the questioning of the defendant was temporarily discontinued while officers went to the apartment where they located Officer Shannon's gun in the place which the defendant had described to them. The questioning was then resumed and the defendant identified the gun as the one he "took from the officer." After the defendant's statement was concluded he was examined by a police doctor whose examination was completed by 7 A.M. The defendant told the doctor that he had been drinking and was in an automobile accident, that he "was stopped by a policeman," and that he "grabbed his gun" and "shot him." The doctor found him well oriented as
to time, place and situation and that he had suffered some injuries which could have resulted from the accident or the struggle.
At about 8:30 A.M. the defendant was asked whether he would be willing to go back to the scene and reenact the events of the previous night. According to the State's testimony, the defendant said he was willing and thereupon he was taken to the scene and photographed while he pointed to the various locations where the events had occurred. After returning to headquarters, the defendant appeared before a Newark Magistrate for preliminary hearing. That appearance took place at about 12:15 P.M. (March 30, 1963) but the hearing was adjourned when the defendant, in response to an inquiry from the Magistrate, stated that he would retain his own counsel. At the trial, the State offered evidence as to the defendant's statement and his reenactment. The trial court, acting in accordance with the principles expressed in State v. Smith, 32 N.J. 501, 559-560 (1960), cert. denied, 364 U.S. 936, 5 L. Ed. 2 d 367 (1961), conducted a preliminary inquiry as to their voluntariness and at that juncture the defendant did not introduce any witnesses nor testify himself. The trial court found the statement and reenactment to have been voluntary and submitted their credibility and voluntariness to the jury in accordance with the governing rulings of this Court. See State v. Hodgson, 44 N.J. 151, 161-162 (1965); State v. Wolf, 44 N.J. 176 (1965).
After the State's case was completed, the defendant produced testimony by several witnesses and he testified on his own behalf. His story was that he had suffered a blackout and could not recall much of what had transpired. He said he did recall that after the accident he heard Marie calling "let's go" or "come on Frank"; that he moved to the wall of a building and "more or less stumbled into a doorway"; that he saw a man with a gun aimed at Marie, believes he jumped towards him, felt he was going down, and felt ...