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 Weintraub, C.J.
Defendant, Thomas Trantino, appeals directly to us from a judgment imposing a death sentence. R.R. 1:2-1(c).
On the evening of August 25, 1963 Trantino and Frank Falco committed a robbery in Brooklyn, following which they
and some companions went to the Angel Lounge, a tavern in Lodi, New Jersey, for pleasure. During the early morning of the 26th, Trantino or someone else fired two shots in horseplay. Sergeant Peter Voto of the Lodi Police Department and Gary Tedesco, a young man who was about to be appointed a patrolman and who accompanied Sergeant Voto for a view of police routine, entered the tavern, presumably to investigate the report of gunfire.
Voto and Tedesco had been in the tavern earlier that morning. On the further visit following the gunfire just mentioned, Voto asked all of the patrons to establish their identity. Following inspection of identifying papers, Voto found a gun wrapped in a towel. Trantino thereupon seized the officer from behind, placed a gun to his head, cursed him and shouted that he would die. He ordered Voto to undress. Voto did so slowly, and as he did Trantino struck him repeatedly with the gun, forcing him to his knees. When Tedesco, who had gone out for a searchlight, re-entered, he was seized by Falco. Tedesco too was ordered to undress, and he did promptly. With Voto partially undressed and on the floor, almost unconscious from the blows, and with Tedesco stripped to his shorts, Trantino fired a number of shots at both, killing them almost instantly. There was testimony that Falco shouted to Trantino, "You're crazy. What are you doing? You're crazy," to which Trantino replied, "We are going for broke. We are burning all the way. We are going for broke."
Trantino and Falco fled, both returning to New York City. Falco was killed there a few days later by police officers who were trying to apprehend him. Trantino surrendered to New York authorities and was extradited to this State.
The resume of events given above was the State's version of the murders. In his defense Trantino testified that on the 25th he took two dexedrine pills and consumed a considerable quantity of liquor from the afternoon of that day to the time of the homicides on the 26th. He denied any recollection of the slaying of the officers, saying he recalled only a loud explosion, followed by a confusion of wild sound and light
within which Falco appeared to be a devil with arched eyebrows. He claimed he next recalled entering the car of a Mrs. Norma Jaconnetta (she left the tavern hurriedly after the shooting) and leaving the car with Falco when she was unable to start it. He related a frenzied flight to the home of a Mrs. Patricia MacPhail (she too had been at the Angel Lounge and had left just before the officers were shot), and described the drive with her help to New York. He insisted those events were heavily clouded.
Although Trantino thus disavowed awareness of the homicides, Mrs. MacPhail testified he told her the policemen were killed, at first saying that Falco had killed them and later saying during the ride to New York City that it was he, Trantino, who had slain them and that he did so to help Falco who was wanted for murder in New York.
The defense also offered psychiatric testimony to which we will refer later.
Defendant moved for pretrial inspection of the statements made by witnesses. The motion was denied. The trial court's action comported with R.R. 3:5-11 which bars inspection before trial of statements of prospective witnesses, subject of course to the discretionary power under R.R. 1:27A of a court to relax a rule "where it shall be manifest to the court that a strict adherence to them will work surprise or injustice." State v. Reynolds, 41 N.J. 163, 182-183 (1963), cert. denied 377 U.S. 1000, 84 S. Ct. 1930, 12 L. Ed. 2 d 1050 (1964); State v. Johnson, 28 N.J. 133 (1958).
We emphasize that the application so denied was to inspect the statements in advance of trial. Defendant was entitled to see them at trial for the purpose of cross-examination, State v. Hunt, 25 N.J. 514 (1958); State v. Mucci, 25 N.J. 423 (1957), and that right was asserted and respected. In fact, the grand jury testimony was also made available at that time to the same end.
Since, in any event, prejudice must be shown upon a complaint on appeal that discovery was improperly denied, State v. LaPierre, 39 N.J. 156, 177 (1963), cert. denied Bisignano v. New Jersey, 374 U.S. 852, 83 S. Ct. 1920, 10 L. Ed. 2 d 1073 (1963), defendant points to inconsistencies between the statements initially given by those witnesses and their later statements, and asserts the pursuit of the inconsistencies might have led to the discovery of other evidence leading to a different verdict. There is no factual support for that claim. The inconsistencies themselves do not suggest avenues for further investigation.
The witnesses conceded they lied initially, saying they did so either to protect Trantino and Falco or to avoid testifying. The sole specific matter to which defendant points in support of his speculation that further investigation would have helped him is in this excerpt from the statement of Patricia Falco:
"I heard Tommy curse at them and tell them to get on their knees and strip. The little detective looked scared and in two minutes was undressed. Then Tommy hit Voto with the gun and cursed him telling him 'You are going to die' over and over. He was saying this and I saw him shoot and shoot. I was very ...