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State v. Welch

Decided: November 22, 1965.


For reversal -- Justices Jacobs, Francis, Proctor and Schettino. For affirmance -- Chief Justice Weintraub and Justices Hall and Haneman. The opinion of the court was delivered by Francis, J. Weintraub, C.J. (dissenting). Hall and Haneman, JJ., join in this dissent.


[46 NJ Page 58] In this post-conviction proceeding instituted under R.R. 3:10A on April 28, 1964 petitioner Raymond

Welch seeks the vacation or reversal of his 1949 conviction of first degree murder. The county court denied relief and this appeal brings the propriety of the denial to us for review.

Welch became 16 years of age on February 22, 1949. Nine days later on March 3, 1949 he and a friend, Frederick Januszkiewicz, about the same age, bought two .22 caliber rifles and a quantity of bullets and took them to the South Mountain Reservation in Maplewood, New Jersey to do some shooting. They were not hunting or shooting on a target range. They were simply skylarking with the rifles, firing indiscriminately at trees and other objects. While there Welch shot and killed Januszkiewicz. He was indicted for felony murder, the State contending the purpose was to rob the victim of a sum of money Welch knew was on his person.

Welch went to trial on December 5, 1949 before the late County Judge Joseph E. Conlon, an able and experienced judge, and a jury. He was represented by experienced attorneys who were assigned because of his indigency. The senior counsel had been a Juvenile and Domestic Relations Court judge and an Assistant Prosecutor for a number of years. On December 13, 1949 the jury found him guilty of murder in the first degree and recommended life imprisonment. On January 18, 1950 the mandatory life sentence was imposed and Welch was confined to State Prison.

On January 27, 1950 counsel for Welch filed a notice of appeal to the Supreme Court from the conviction. This was well within the time then prescribed for the taking of an appeal. Rule 1:2-5(b). When the notice was filed in the county court on January 27, 1950 certain avenues of relief were available for indigent appellants in criminal cases. Under Rule 1:2-27(a) such an appellant was authorized to file a verified petition with the Supreme Court reciting his poverty and asking for waiver of filing fees, the deposit for costs and for leave to file typewritten, multigraphed or mimeographed copies of his brief and appendix. Such relief was granted ordinarily almost as of course. No such petition was filed in this case.

Rule 1:2-27(a), however, did not relate to the furnishing of a transcript of the trial testimony to an indigent defendant. Under subsection (b) of Rule 1:2-27 in murder cases where the death penalty had been imposed, an appealing indigent defendant was entitled as of right to an order of the trial court directing the treasurer of the appropriate county to pay for the cost of providing the transcript. That provision was not applicable here because Welch had been sentenced to life imprisonment. Thus, although he had a right of appeal to this Court, N.J. Const., Art. VI, § V, para. 1(c); Rule 1:2-1(c); Midler v. Heinowitz, 10 N.J. 123 (1952); State v. Cynkowski, 10 N.J. 571, 575 (1952), the remedy was an empty one if he could not perfect it without the trial testimony, and his indigency made it impossible for him to furnish the transcript himself. See State v. Bentley, 46 N.J. Super. 193 (App. Div. 1957).

Three facts are obvious from the full record here: (1) Welch's principal ground of appeal from his conviction was that the purported confession put in evidence against him at the trial, without which the conviction would not have been obtained, was involuntary and the product of coercion on the part of law enforcement officers. This was a ground of federal constitutional dimensions. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2 d 837 (1963); Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2 d 770 (1963); (2) In order to present that question properly and adequately to the appellate tribunal a transcript of the testimony was not only essential to him, but was required by court rules, Rule 1:2-4; Rule 1:3-11; now R.R. 1:2-8; (3) The transcript was neither ordered nor furnished by Welch because of indigency.

Some months after filing the notice of appeal defense attorneys made a last straw effort under N.J.S.A. 22:1A-3, L. 1949, c. 193, § 3 (now N.J.S. 22A:2-3) to obtain court assistance in procuring the transcript. In June 1950 a verified petition was filed in the Supreme Court requesting a "special rule" thereunder directing the Essex County Treasurer to defray the expense of appeal. The statute provides:

"The Supreme Court may by general rule, or by a special rule in any action pending therein, make such order for the payment of the cost of the transcript and of printing the briefs, appendices, and other proceedings, and other disbursements and expenses by either party, and the taxation and allowance thereof in the bill of costs, as the court may deem just." (Emphasis added)

The petition recited the indigency of the defendant and his family, the appointment of counsel by the trial court on account of the indigency, the conviction after trial and the filing of the notice of appeal. It contained also a representation by counsel that in their judgment meritorious questions existed justifying an appeal, particularly respecting the admissibility of Welch's alleged confession "which formed the basis of the State's case." It concluded by pointing out there was no statutory provision authorizing the trial judge to order the payment of appeal costs, and requesting a special rule providing for their payment as a county expense. On June 27, 1950 the application was denied by an order saying "the motion for leave to appeal in forma pauperis is denied." No memorandum or opinion giving reasons for the action was filed. No review of the order was sought in the United States Supreme Court.

It seems likely the Court held the view the statute was not applicable. It was then and is now part of the Fees and Costs Act. Its design is to authorize the Supreme Court to deal by general rule, or by special order in a particular case, with the costs of appeal, and their allocation and taxation in the bill of costs, as between parties in civil cases. Cf. United States Pipe, etc. v. United Steelworkers of America, 37 N.J. 343, 355 (1962). Nowhere did the statute empower the Court to issue a separate directive to a county treasurer to pay the cost of a transcript for an indigent criminal defendant. It was not considered at that time that costs would run against the State in favor of a defendant in a criminal case in the absence of a specific statute. State v. Borg, 9 N.J. Misc. 261, 153 A., 374 (Sup. Ct. 1931); 20 Am. Jur. 2 d, Costs, § 107 (1965); and, see N.J.S. 2A:15-60. (In 1956 the Legislature granted limited authority to order transcripts. L. 1956,

c. 134; N.J.S. 2A:152-17; R.R. 1:2-7(c).) These reasons strongly suggest the conclusion the Court did not consider that the 1949 amendment to the Fees and Costs Act supplied a means of relieving Welch of his transcript expense burden.

There is a possibility, of course, that the Court regarded the time lapse between the filing of the notice of appeal and the application for relief under the 1949 statute, as constituting lack of diligent prosecution of the appeal. See Rule 1:2-29 (now R.R. 1:4-2). But we consider that suggestion unlikely in the extreme, especially since the prosecutor had made no motion to dismiss the appeal for that reason.

It is thus apparent that in 1949-1950 an impecunious defendant who had been convicted of first degree murder but condemned to life in prison and not to death had no way of effectuating his right of appeal, no matter how erroneous that conviction might have been.

Six months after denial of the free transcript by this Court, the Clerk served upon Welch's attorneys a notice to dismiss his appeal for lack of prosecution. On February 7, 1951 a stipulation of dismissal signed by the prosecutor and senior defense counsel was filed in response to the motion. Welch had no knowledge of the stipulation; he was not consulted about it. At the hearing in the post-conviction proceeding counsel made plain that since Welch and his family were indigent and there was no statutory authorization for a free transcript, he had no basis on which to resist the administrative motion to dismiss the appeal, and therefore he agreed to the stipulation of dismissal.

Some years after the dismissal this Court appointed an attorney at Welch's request to investigate his age when the homicide was committed. In 1957 a report was made confirming the birth date of February 22, 1933 and thus the jurisdiction of the county court to try the indictment. The matter then rested until April 28, 1964 when the present proceeding began.

In the meantime Griffin v. People of State of Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956), was decided.

There Griffin had been convicted of armed robbery. Immediately thereafter, alleging indigency, he moved in the trial court that a certified copy of the entire record, including a transcript of the testimony be furnished without cost to enable him to pursue an appeal. In Illinois, like New Jersey, such a convicted defendant had a right of appeal, and also like New Jersey, in order to obtain the desired full appellate review of trial errors it was necessary for Griffin to submit a transcript of the testimony. Again, in Illinois as in New Jersey at that time, only indigent defendants who had been sentenced to death were entitled to free transcripts at the expense of the county. All others convicted in criminal cases who needed a transcript for appeal had to pay for it whether indigent or not. Griffin's motion was denied without a hearing.

In a post-conviction proceeding the United States Supreme Court held denial of the free transcript violated the due process and equal protection clauses of the Fourteenth Amendment. The court said that since appellate review as of right in Illinois was an integral part of the system for adjudicating guilt or innocence in a criminal case, at all stages of the proceedings these clauses protected indigents from invidious discrimination. More particularly, Justice Black said:

"All of the States now provide some method of appeal from criminal convictions, recognizing the importance of appellate review to a correct adjudication of guilt or innocence. Statistics show that a substantial portion of criminal convictions are reversed by state appellate courts. Thus to deny adequate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside. Many States have recognized this and provided aid for convicted defendants who have a right to appeal and need a transcript but are unable to pay for it. A few have not. Such a denial is a misfit in a country dedicated to affording equal justice to all and special privileges to none in the administration of its criminal law. There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts." 351 U.S., at pp. 18-19, 76 S. Ct., at pp. 590-591.

The petition here is predicated largely upon the decision in Griffin v. People of State of Illinois. But it does not rest only on the allegation that Welch was denied his right of appeal in violation of the Fourteenth Amendment. It charges also that at the trial in 1949 his confession was admitted in evidence against him in violation of his rights under the Fifth and Fourteenth Amendments. More particularly it alleges he was a person of limited mental capacity, being classified as a borderline mental defective, that he was held incommunicado for more than two days after his arrest during which time he was subjected to prolonged and unfair interrogation until exhausted and confused, and that the confession he signed was the result of coercion and improper treatment. And the petition asserts that by reason of the failure of the State to furnish him with a transcript of the trial testimony, and the consequent dismissal of his appeal he was prevented from obtaining an appellate review of the admissibility of his confession.

The petition concludes with a request for a hearing and that Welch be supplied with a trial transcript without cost but pursuant to N.J.S. 2A:152-17, 18; L. 1956, c. 134. Section 17 authorizes the appropriate county court or the Appellate Division to order such a transcript for an indigent convicted defendant at county expense where it is necessary for a proceeding in the trial court or in the Appellate Division. (Attention is called to what may be a legislative oversight. In capital cases appeal from the trial court is directly to the Supreme Court. N.J.S. 2A:152-17 deals only with proceedings in the trial court and Appellate Division. N.J.S. 2A:152-15 relating to capital cases empowers the court before whom an indigent accused "is to be tried" to give him a free transcript when necessary "for his defense." N.J.S. 2A:152-16 authorizes the trial judge in capital cases to order an expense-free trial transcript for purposes of an appeal by a convicted indigent defendant who has been sentenced to death. Even though there may appear to be an omission in the statute respecting a transcript for an indigent defendant convicted

of first-degree murder and sentenced to life imprisonment and who must appeal directly to the Supreme Court, we have no doubt as to the duty or authority of the appropriate court to order a free transcript in aid of his appeal. Cf. State ex rel. Marshall v. Eighth Judicial District Court, Nev., 396 P. 2 d 680 (Sup. Ct. 1964).)

At the post-conviction hearing in the county court Welch furnished testimony and documents clearly showing indigency at the time of his trial and abortive appeal, and the facts already detailed above attending the dismissal of the appeal. When he undertook to offer evidence relating to the circumstances of his arrest, his school record, mental capacity, almost nonexistent reading and writing ability, and facts surrounding the giving of his confession, the State objected substantially on the ground that the issue of voluntariness was res judicata. The assistant prosecutor contended the confession having been admitted at the trial on the presiding judge's finding of voluntariness (in those days the issue of competency, i.e., voluntariness, was solely a court question -- see State v. Bunk, 4 N.J. 461, 470 (1950)), and Welch's appeal having been dismissed by consent following the 1950 order of the Supreme Court denying a free transcript, he was foreclosed from attacking the validity of the confession in a post-conviction proceeding, and the Supreme Court order denying a free transcript and the consequent stipulated dismissal were binding on the county court. The trial court agreed with the prosecutor, and originally sustained the objection, but at counsel's request in order to make an appeal record, sensibly allowed the proof to be introduced. This proof consisted mainly of a transcript of Welch's testimony at the original trial, a psychiatric report of an examination made prior to that trial, and a retelling by Welch of the circumstances leading up to and surrounding the shooting of Januszkiewicz and his subsequent confession of the killing as a felony murder.

Although substantial evidence was introduced by Welch to demonstrate the coerced character of the confession, the State announced it would not present ...

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