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 Jacobs, J.
The Union County Grand Jury returned indictment No. 405 against the defendant Richard Theodore Coleman for the murder of his wife Millie Coleman and indictment No. 406 against him for the murder of his sister-in-law Ruby Coleman. The indictments were consolidated for trial. At the trial, the State's evidence of the two killings was not disputed. The defendant relied upon the defense of insanity as to both. The jury returned a verdict on indictment No. 405 of guilty of murder in the first degree with a recommendation of life imprisonment and on indictment No. 406 of not guilty by reason of insanity, said insanity continuing to the present time. The defendant appealed as of right to this Court from his conviction under indictment No. 405.
The defendant lived with his family in one-half of a two-family duplex at 1119 McCandless Street, Linden. His brother Harry and Harry's wife Ruby, lived in the other half of the duplex. During the evening of July 4, 1963 the defendant's wife Millie took their children to a relative's home in Rahway where Millie and the children spent the night. They returned to their home in Linden at about 3 P.M. on July 5th. In the meantime the defendant had done some drinking at a local tavern and had traveled to Elizabeth with friends. When he returned to his home during the afternoon of July 5th he found his wife preparing to leave with the children for Florida. There was an argument and the defendant shot and killed his wife.
Harry heard the argument and the shot, rushed from his apartment to that of his brother and saw Millie on the floor with "a lot of blood around her head." He called to his brother, received no answer, and then saw his brother coming up from the cellar with "a revolver in each hand." Harry asked his brother what he had done but there was no reply. The defendant then shot Harry. Wounded, Harry ran out of the back door of the defendant's apartment and to his own apartment, falling in as his wife Ruby opened the door. The defendant followed and shot point blank at Ruby, killing her.
The defendant then returned to his own apartment, came out, crossed the street and shot and wounded Mrs. Mary Ann Kube who was visiting in her mother-in-law's home on McCandless Street. He then entered his car, drove a short distance, and shot and wounded a neighbor, Leroy Edwards. He drove off and was finally apprehended at approximately 3:30 A.M. on July 6th as he was riding along Route 1 in Newark. He was taken to Newark Police Headquarters and at about 4 A.M. Linden police officers arrived there and spoke to him. He identified himself to them as Richard Coleman and admitted that he had shot his wife and his sister-in-law. At about 9:30 A.M. he was examined by a physician of the Newark Police Department, was brought before a Newark magistrate, and was then taken to Linden Police Headquarters where he was questioned for a short time.
The defendant was placed in a cell at 12:30 P.M. and shortly after 1 P.M. was taken to Masterpeter's funeral home where he identified the bodies of his wife and sister-in-law. He remained there briefly and was then returned to his cell. He was examined by a physician of the Linden Police Department at 3:15 P.M. and Reverend Schell, who had been called at the defendant's request, arrived at 3:35 P.M. During the evening of July 6th the defendant said that he wanted to make a statement but that he would like Reverend Schell to be present. Reverend Schell was called again and arrived at about 9 P.M. in the company of Mr. Patterson, a trustee of Reverend Schell's church. Between 9:25 P.M. and 11 P.M.
the defendant gave his statement in the presence of Reverend Schell, Mr. Patterson and several police officers.
At the trial, the killings and the attendant circumstances were overwhelmingly established by the State's evidence which included, inter alia, testimony from the defendant's daughter who saw Millie lying on the floor and the defendant with a gun in his hand, and testimony from the defendant's brother who, after seeing Millie on the floor and the defendant with guns in both hands, later saw the defendant shoot and kill Ruby. Testifying on his own behalf, the defendant said that he was struck on the head during the argument with his wife on July 5th and that he remembered nothing until he found himself in the Linden jail on July 6th. He further said that he blacked out again after he was taken to identify the bodies of his wife and sister-in-law and that he recalled nothing until he found himself in the Union County Jail on July 7th. Two psychiatrists and a psychologist testified for the defendant that he was legally insane on July 5th when his wife and sister-in-law were killed. Two psychiatrists testified for the State that the defendant was legally sane when the killings occurred.
After the jury returned its verdicts the defendant moved for a new trial. This motion was dismissed when the defendant advised the court and his counsel that he did not wish to proceed. Later the defendant changed his mind and a further notice of motion for new trial was then filed. This motion was denied on the ground that it had not been filed within the time allowed by R.R. 3:7-11(a). In support of his appeal, the defendant asserts various grounds of alleged error during the trial and in the denial of the motion for new trial; they will now be considered in the order in which they have been presented in the defendant's brief.
The defendant's first point attacks the consolidation of the indictments as violative of his "rights to a fair and impartial
trial as guaranteed by the New Jersey and United States Constitutions." R.R. 3:5-6 provides that the court may order two or more indictments to be tried together if the offenses could have been joined in a single indictment. R.R. 3:4-7 provides that two or more offenses may be charged in the same indictment if they "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." The offenses here were clearly of the same or similar character and there can be no question that the consolidation came within the broad terms of the rules. See State v. Manney, 26 N.J. 362, 365-366 (1958); State v. Begyn, 34 N.J. 35, 56-57 (1961); cf. State v. Weiner, 41 N.J. 21, 34-36 (1963).
In the interests of economy and efficiency, similar or related offenses may be joined for single trial so long as the defendant's right to a fair trial remains unprejudiced. Where prejudice appears, the defendant may readily obtain a severance or other suitable relief. See R.R. 3:5-7. Here the defendant did not at any time during the trial apply for severance although he had voiced his opposition to the State's motion before trial for consolidation of the indictments. In any event, we fail to find in the record any indication of prejudice to the defendant by virtue of the consolidation. There was no dispute at the trial that the defendant had killed his wife and sister-in-law and the defense rested entirely on insanity. The consolidation protected the defendant against any danger of multiple prosecutions (cf. State v. Hoag, 21 N.J. 496 (1956), aff'd 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2 d 913 (1958)) and was helpful rather than harmful to his defense which rested heavily on the bizarreness of his entire course of conduct through his last act of violence. Indeed, in his brief the defendant explicitly points out that even the State's evidence of the assaults which did not result in death was not objected to because it was felt that it "would support the defendant's plea and would indicate the defendant's mental condition at the time of the offenses."
In its charge, the trial court clearly instructed the jury that the defendant was entitled to have his guilt or innocence separately assessed on each indictment and that the determination of his guilt or innocence on one indictment should not be considered as indicative of his guilt or innocence on the other. The jury's capacity to follow the trial court's instructions on this score was forcefully evidenced by its variant determinations on the two killings. Unlike other situations (Drew v. United States, 118 U.S. App. D.C. 11, 331 F.2d 85 (1964)) where the nature of the multiple charges and the State's evidence may have suggested the danger of confusion (Note, 74 Yale L.J. 553 (1965)) or the likelihood that the charges would be used "to prove each other or prove themselves through the sheer weight of numbers" (State v. Weiner, supra, 41 N.J., at p. 35), here, there was no such danger or likelihood. We are satisfied that the trial court acted well within the bounds of its discretion in consolidating the indictments for trial. Cf. Peterson v. United States, 344 F.2d 419, 422 (5 Cir. 1965); Johnston v. United States, 260 F.2d 345, 346 (10 Cir. 1958), cert. denied 360 U.S. 935, 79 S. Ct. 1454, 3 L. Ed. 2 d 1547 (1959); Commonwealth v. Patrick, 416 Pa. 437, 206 A. 2 d 295, 298 (1965); Commonwealth v. Fancy, Mass., 207 N.E. 2 d 276, 282 (1965).
The defendant contends that the trial court erred in refusing to grant his motion for a jury view of the premises. N.J.S. 2A:77-1 provides that in any civil or criminal case the court may order "that the jury view the lands, places or personal property in question if that will enable the jury better to understand the evidence." The view is not independent evidence in the cause but may be used to serve as an aid to the jury's understanding of the evidence properly introduced before it by the parties. See Bancroft Realty Co. v. Alencewicz, 7 N.J. Super. 105, 109-110 (App. Div. 1950). Whether a view would be necessary or helpful in any given instance
and should therefore be ordered rests within the trial court's sound discretion. See State v. Jackson, 43 N.J. 148, 170 (1964); State v. King, 133 N.J.L. 480, 483 (Sup. Ct. 1945), aff'd 135 N.J.L. 286 (E. & A. 1947); Braelow v. Klein, 100 N.J.L. 156, 158 (E. & A. 1924); 2 Wharton Criminal Evidence § 681 (12 th ed. 1955); 4 Wigmore, Evidence § 1164 (3 d ed. 1940).
The defendant urges that the elements of time and distance were important in the presentation of his defense and that a view would have aided the jury in its understanding of the evidence. But, as the trial court properly pointed out, the jury had many pictures of the area as well as diagrams and the defense could readily have introduced a drawing to scale if it considered it to be advantageous. There were no evidential complexities bearing on the elements of time and distance and there is no reason to suspect that the jury had any difficulties in this connection. The trial court's denial of the motion for a jury view was not improper and did not result in any prejudice to the defendant. See R.R. 1:5-1.
The defendant claims that the introduction into evidence of photographs of the bodies of Millie Coleman and Ruby Coleman was prejudicial. The photographs (1 of Millie and 1 of Ruby) were not inflammatory or gruesome. They were in black and white and did not show front views of faces of the victims or their wounds. They did show the positions of the bodies immediately after the shootings and were to some extent evidential; indeed defense counsel during the course of his summation made a specific argument on the basis of the position of Ruby's body and referred to the photograph in support. In State v. Smith, 32 N.J. 501 (1960), cert. denied 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2 d 367 (1961), we pointed out that the admission of photographs having some probative value, even where cumulative and somewhat inflammatory, rests within the discretion of the
trial judge, "whose ruling will not be overturned save for abuse, as where logical relevance will unquestionably be overwhelmed by the inherently prejudicial nature of the particular picture" (32 N.J., at p. 525). It appears to us that here the photographs were not at all prejudicial and that the trial court did not exceed its discretionary authority in admitting them. See State v. Hale, 45 N.J. 255, 262-263 (1965); State v. Bucanis, 26 N.J. 45, 52-55, cert. denied 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2 d 1160 (1958); Annot., 73 A.L.R. 2 d 769 (1960).
The defendant contends that the trial court erred in permitting Detective Carmine Lonardo to testify though his name had not been set forth in the State's answer to the defendant's demand for particulars. Although the defendant originally had made a broader demand, he withdrew it on the understanding that the State would supply the names of "all persons possessing knowledge of relevant facts concerning the alleged crime, but not a list of witnesses who may be called by the State at the trial." In its particulars the State listed many names but neglected to include Detective Lonardo's name. However, well before trial, the State had given defense counsel a copy of the defendant's July 6th statement which disclosed, at its beginning, that it was made before "U.C. Det. H. Frankel & Det. C. Lonardo" and, at its close, that it was sworn to before Detective Frankel and was witnessed by several persons including Detective Lonardo.
When Detective Lonardo was called by the State as a witness, defense counsel voiced his objection on the ground that the Detective's name had not been listed in the particulars furnished by the State. The Prosecutor pointed out that defense counsel was undoubtedly aware that Detective Lonardo would be called as a witness since he knew that the Detective had participated ...