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State v. Ordog

Decided: July 12, 1965.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY FRANK ORDOG, JR., DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. GARY RUSH, DEFENDANT-APPELLANT



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 Haneman, J.

Haneman

Anthony Ordog (Anthony), Gary Rush (Gary) and Russell Rush (Russell) were indicted for the murder of Mary Tilton. Originally all three pleaded not guilty. The pleas were subsequently changed to non vult Anthony and Gary later retracted their pleas and entered pleas of not guilty. These two defendants were tried jointly on the theory of felony-murder, but the State did not seek the death penalty. The jury found them guilty and recommended life imprisonment as to both. Separate appeals were taken by the defendants to this Court as of right. R.R. 1:2-1(c).

The facts adduced at trial indicate that shortly after 11:00 P.M. on January 18, 1962 two men entered the Farm Tavern in Winslow Township, Camden County. One carried a shotgun and the other a claw hammer. Each had his face covered

with a handkerchief. The one with the shotgun announced that it was a "stick up" and took the wallets of Edward Cahill, one of the proprietors, and Frank Scardino, a customer. The one with the claw hammer went behind the bar and emptied the cash register. Mary Tilton, co-owner of the tavern, was behind the bar throughout this time. The robber with the shotgun demanded money from her. When she denied having any, he shot her from a distance of four feet. The two men then left. Mary Tilton died as a result of the wounds thus inflicted.

The State contends that Russell was the man with the shotgun, his brother Gary the man with the claw hammer, and that Anthony (the driver of the get-away car) was waiting outside during the perpetration of the robbery and murder. Its principal proofs included the confession of Anthony, dated December 21, 1962, and the confession of Gary, dated December 26, 1962. Russell also confessed, and testified at the joint trial of Anthony and Gary as to his participation in the crime. However, while he refused to implicate either Anthony or Gary, his testimony strongly tended to corroborate the confessions of the other two. Additionally, the State produced the wallets of Cahill and Scardino, found by State Highway Department employees on the White Horse Pike some five to six miles from the tavern. The State also introduced as the murder weapon a shotgun owned by Philip Appenzeller, the owner of a restaurant in Riverside, by whom Russell was employed during the month of January 1962. Appenzeller identified a 12-gauge plastic shotgun shell which he found in the back room of the restaurant where the gun was kept. He testified that he had never purchased or owned such a shell. A State Police official produced a plastic wad from a shotgun shell found at the scene of the murder, which was later identified as a component part of the type of shell found by Appenzeller. August Stecher, the owner of a sporting goods store in Riverside, testified that Anthony and Russell had discussed this type of shell with him in December of 1961, but that he could not remember selling them any ammunition.

A.

We shall first treat of Anthony's appeal, which is also dispositive of many of the issues raised by his codefendant Gary. He argues that the trial court erred in:

(1) Not granting a severance;

(2) Finding that his confession was voluntarily given;

(3) Admitting his confession, since the evidence clearly disclosed that he was not represented by counsel, was not informed of his right to counsel and was not admonished of his other constitutional rights;

(4) Admitting the confession into evidence in view of the fact that he had not received a preliminary hearing prior to the taking thereof;

(5) The refusal to enter a judgment of acquittal at the conclusion of the State's case and at the conclusion of the entire case because of insufficient corroboration of his confession;

(6) Permitting Dr. Spradley, a psychiatrist, to testify to what Gary told him about Anthony's participation in other crimes.

He also argues that the prosecutor transcended the legal bounds of a summation in that he urged that the jury should convict these defendants as a deterrent to other prospective criminals.

We will discuss Anthony's arguments in the order above listed.

I.

Anthony twice moved for a severance under R.R. 3:5-7. He claims on this appeal that the trial court abused its discretion in not granting such a severance because of the alleged prejudicial effect of inculpating statements made by Gary in his confession, which was admitted into evidence, and the repetition by Dr. Spradley while he was a witness on rebuttal of statements made to him by Gary indicating that Anthony had participated with him in the commission of other crimes.

It is indisputable that while the admission of one defendant's confession in a joint trial has the potentiality of prejudice to other defendants implicated by the confession, such statements are, in some circumstances, admissible. See generally State v. Blanchard, 44 N.J. 195 (1965). As we stated in State v. Tassiello, 39 N.J. 282, 296 (1963):

"* * * it is generally recognized that considerations arising out of the due administration of criminal justice frequently require that several defendants be tried jointly and that the confession of one defendant be admitted into evidence at such a joint trial where the circumstances are such that the jury can reasonably be expected to follow the court's admonition to disregard the confession as to the other defendants."

Thus, where a joint trial is held and the out-of-court confession of one defendant inculpates the other, the trial court must clearly, promptly and emphatically caution the jury on the limited effect to be given to the confession. State v. Murray, 33 N.J. 393, 398 (1960); State v. Johnson, 31 N.J. 489, 506 (1960). But even then there may be situations where limiting instructions would be ineffective. State v. Blanchard, supra, 44 N.J., at pp. 199, 203. See Delli Paoli v. United States, 352 U.S. 232, 243, 77 S. Ct. 294, 300, 1 L. Ed. 2 d 278, 286 (1957). The trial court in the instant case adequately cautioned the jurors when the confessions were admitted into evidence, and in his charge he again emphasized the limited effect to be given extrajudicial statements made by one defendant.

The issue on this appeal, therefore, is whether in the circumstances of this case the jury could reasonably have been expected to follow the trial court's admonitions. There were here only two defendants and two confessions. This made it reasonably easy for the jury to remember, in light of the court's direction, the limited effect to be given to Gary's confession. See State v. Murray, supra. Compare State v. Blanchard, supra, where six confessions were involved and we concluded that it was virtually impossible for the jury to remember what evidence was admissible against which defendant.

Additionally, the confessions of Anthony and Gary were substantially the same. Since Gary's confession was to all intents cumulative of Anthony's, the identical information was before the jury in each confession, and it was unlikely that the jury would have any occasion to go beyond Anthony's own confession and use similar statements in Gary's confession against him. See United States ex rel. Johnson v. Yeager, 327 F.2d 311, 318-319 (3 Cir. 1963), cert. denied 377 U.S. 977, 84 S. Ct. 1882, 12 L. Ed. 2 d 745 (1964), 377 U.S. 984, 84 S. Ct. 1882, 12 L. Ed. 2 d 753 (1964); cf. State v. Johnson, supra, 31 N.J., at p. 506; Delli Paoli v. United States, supra, 352 U.S., at p. 242, 77 S. Ct., at p. 300, 1 L. Ed. 2 d, at p. 286. It is on this ground that State v. Young, 86 N.J. Super. 262, 264-265 (App. Div. 1965), certif. granted 44 N.J. 397 (1965), is distinguishable. In that case only the codefendant confessed, and the court found it improbable that the jury could disregard the many references to Young in that confession. Under the facts present in this case we cannot say that the trial court abused its discretion in denying the motion for a severance.

Doctor Spradley, the State's psychiatrist, testified on rebuttal that during his psychiatric examination of Gary the latter told him of Anthony's participation with him in a number of other crimes. He further emphasized that the consideration of this part of Gary's history was absolutely necessary for the formation of a valid expert opinion as to Gary's sanity, especially insofar as it related to the extent of his recovery from the memory impairment resulting from shock therapy he had recently undergone. Cf. State v. Whitlow, 45 N.J. 3 (1965). The trial court admitted this rebuttal testimony but again gave clear, immediate and emphatic precautionary instructions to the jury that these statements could not be used against Anthony on the question of his guilt or innocence, that they were not offered for their truth but merely as a foundation for the doctor's opinion, and that the jury's consideration thereof must be limited to their role as psychiatric background information justifying the doctor's

opinion. The instructions were repeated in the court's charge. In State v. Lucas, 30 N.J. 37 (1959), this Court said, at pp. 79-80:

"It should be noted that there may be instances in which statements made by the accused to the psychiatrist might also relate to the guilt or innocence of the accused. * * * In such instances the introduction of the testimony is permissible where the psychiatrist asserts that it constituted a necessary element in the formulation of his opinion. In that event, the testimony should be circumscribed by an appropriate limiting charge by the trial court to the effect that it should not be considered by the jury as substantive evidence relating to the question of guilt or innocence of the accused, but only as evidence tending to support the ultimate expert conclusion of the psychiatrist on the question of insanity. If it further appears that the psychiatrist's opinion hinges upon the truth of the matter asserted, rather than the fact that it was said, then the jury should be instructed that the probative value of the psychiatrist's opinion will depend upon whether there is, from all the evidence in the case, independent proof of the statement made by the accused."

The same rule is logically applicable to a statement implicating a codefendant. In light of the above we perceive no error in refusing to grant a severance on this ground.

II.

In November 1962, the State Police received a tip that Anthony had been involved in the Farm Tavern robbery-murder. They attempted to see him in the State Prison on December 14, 1962, where he was incarcerated for another crime, but were refused permission because he was under doctor's care for a recent hernia operation. However, on December 21, 1962 three State Police officers were permitted to interview Anthony in the parole board room of the State Prison.

The State's testimony, initially taken outside of the presence of the jury, which bears on this interview, and thereby on the voluntariness of Anthony's confession, proceeded as follows: Anthony (then 19 years of age) came into the room at 9:25 A.M. Two of the detectives, dressed in civilian clothes, were then present. They identified themselves as police officers

and advised him that they were there to question him about some armed robberies. Before 10:30 A.M. Anthony had confessed to several other robberies. The police then proceeded to question him about the Farm Tavern crime. At 11:00 A.M. they took a 15 minute break to permit Anthony to go to the lavatory, and have a soda. By approximately 11:45 A.M. he had orally confessed to his part in the robbery-murder. The third detective then entered the room to witness Anthony's formal statement, the typing of which began at noon. The introduction of the statement, which was read to Anthony, contains a warning that it was to be free and voluntary and that it could be used against him. He acknowledged that he understood that admonition and was willing to make the statement. The recordation of the statement continued from noon until 12:30 P.M. when lunch was brought in for all occupants of the room, including Anthony. Between 12:30 and 1:00 P.M. he was asked no questions. At 1:00 P.M. the recordation of the statement was resumed, and was completed by 2:15 P.M. Anthony read the statement and acknowledged its correctness, but refused to sign it. After the police indicated that they did not believe Anthony's contention that he was not inside the tavern during the crime, he requested that his confession be substantiated by a lie detector test. Such a test was administered by one of the three officers. The police further testified that no threats or promises were made and that no physical force was used; that Anthony made no complaints about physical discomfort as a result of his recent operation or otherwise, nor did he show any signs of exhaustion or nervousness; and that he was permitted to walk about the room on several occasions.

Anthony does not allege that the confession was the result of physical police brutality, but rather that the confession was "induced by coercive actions or tactics short of physical violence" -- that "it was extracted by more sophisticated methods." In short, he argues that the confession was coerced by psychological pressure. In ...


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