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 Francis, J.
An Essex County Grand Jury returned two murder indictments against defendant Clarence Billingsley. One charged him with killing Rosetta Lucas on March 5, 1964; the other with killing Donna Adams on the same day. Since the murders occurred in the same place as part of a single incident the indictments were consolidated for trial. After a trial which began on November 9, 1964 and terminated on November 25, 1964, the jury found Billingsley guilty of murder in the second degree for the killing of Rosetta Lucas, and guilty of murder in the first degree for the killing of Donna Adams. The trial court sentenced him to 25-30 years in New Jersey State Prison on the second degree murder conviction. The jury having made no recommendation of life imprisonment in the Adams case, the mandatory death sentence was imposed. N.J.S. 2A:113-4. Thereafter, Billingsley sought a review in this Court of the validity of the convictions. R.R. 1:2-1(c).
The appeal primarily concerns alleged error (a) in admitting defendant's confession in evidence, (b) in certain aspects of the trial court's charge to the jury, (c) in submitting to the jury the issue as to whether the killing of Donna Adams constituted first degree murder, and (d) whether it was a proper exercise of discretion to impose a death sentence and a prison sentence of 25-30 years without requiring the imprisonment to be served before execution of the death sentence.
Rosetta Lucas and her younger sister, Donna Adams, a ninth grade student in junior high school lived together in a
three room, third floor apartment at 778 North Sixth Street, Newark, N.J. In the late afternoon of March 5, 1964, Norman Lucas, Rosetta's brother-in-law came to the apartment. The entrance door led into the kitchen. The door had one broken pane of glass near the knob and a number of pieces of broken glass were inside on the kitchen floor. On entering, Lucas saw an overturned chair and a bottle of soda on the floor. After looking into the bedroom he telephoned the police. Full examination of the bedroom revealed the brutally murdered bodies of both young women. One was on the bed, the other on the floor. Both had their dresses pulled up and were naked from the waist down.
Autopsy disclosed that Rosetta had fractures of both sides of her lower jaw. In addition she had 24 stab wounds of the front and sides of her chest and in her back. Five of the wounds were classified as fatal, 19 of them had not affected vital parts of the body. Thirty stab wounds of the chest and back were found on Donna Adams, six of them were in vital areas. The County Medical Examiner who saw the bodies at the scene estimated the time of death at between 3:50 and 4:50 P.M.
There were no eyewitnesses to the killings. On the basis of information received from Norman Lucas, the police picked up Billingsley for questioning about 9:30 P.M. the next day and by about 12:30 A.M. on March 7 he had confessed orally to the stabbing of both young women. The officers in charge of the investigation then communicated with an Assistant Prosecutor and an official court reporter. They appeared at about two o'clock in the morning of March 7, and Billingsley's confession was taken stenographically in question and answer form. The circumstances of the interrogation and giving of the statement will be discussed hereafter. In the afternoon of March 7 he was arraigned before a Newark Municipal Magistrate on complaints charging him with the two murders.
At the trial, Norman Lucas, who had furnished the information leading to the police questioning of Billingsley, said he had known defendant since 1959. Sometime around 9:00
A.M. on March 5, 1964 the two men met by chance on the street in Newark. Lucas was on his way to the apartment of his sister-in-law Rosetta Lucas to change his clothes preparatory to a trip to Plainfield, N.J. He kept some of his clothes at Rosetta's place, but did not reside with her. He said he was living on Clinton Avenue, Newark, apparently at a Bordentown Reformatory "half-way" house.
Billingsley, who was 24 years of age, married and unemployed at the time, went along with Lucas to Rosetta's apartment. There he met and had some conversation with Rosetta while Lucas changed his clothes. Quite obviously he was attracted to her because when he and Lucas left he asked Lucas to arrange a date with her during the weekend.
The two men returned to the downtown section of Newark where they parted. Billingsley bought beer and wine and went to his brother's house, also in Newark. At his brother's place he drank whiskey and smoked part of a "reefer" which he said Lucas had given him. Then Billingsley, his brother and two other persons drank the wine and beer he had purchased, as well as some wine his brother produced. He left around 1:00 P.M. to go to his home at 183 Ridgewood Avenue, Newark. He said he was feeling "pretty high" by that time. On the way home he bought a half-pint of mint gin and drank it while walking along.
According to his testimony at the trial he arrived home at about 1:15 P.M. and fell asleep, fully clothed, on his bed. He said he slept until 6:35 P.M. When he awoke his wife was home. After a while he and his wife visited his brother, returned home, had some food and went to bed where he remained until 7:00 A.M. the following morning. He denied returning to the Lucas apartment at any time during the afternoon of March 5, and stabbing the two young women.
As has been indicated above the police began an immediate investigation of the homicides. The information furnished by Norman Lucas resulted in the apprehension of Billingsley for questioning at about 9:30 P.M. on March 6, 1964. The officers who placed Billingsley in the patrol car said that as soon
as he was asked if his name was Billingsley he hung his head and started to sob and rock back and forth. He was told he was a murder suspect and taken in the patrol car to the local Precinct.
After a short time Billingsley was removed to Police Headquarters where around 11:30 P.M. he was questioned in the homicide squad interrogation room by Lieutenant Joseph A. Kinney of that squad. Kinney testified that he told Billingsley they were engaged in a homicide investigation and wanted to ask him some questions as he was a suspect. He advised defendant of his right to answer or not as he saw fit, and that anything he said could be used against him. Kinney said further that Billingsley did not request an attorney, nor was he informed of his right to have one; also that no one threatened Billingsley, or abused or struck him, or made any promises of benefits of any kind or coerced him in order to obtain a statement from him.
At first, according to Kinney, Billingsley denied going back to the Rosetta Lucas apartment on March 5. Then after some indication that the police were aware he had been there in the morning with Norman Lucas and had shown an interest in making a date with Rosetta, he admitted he had gone back to her apartment in the afternoon. He said that after leaving his brother's house following the drinking there, he walked around for a while and then decided to return to the Lucas apartment. On arrival he knocked on the door and Rosetta let him in. They went to the living room where the radio was playing. He took his jacket off and put it on a chair. They started to dance and while doing so he punched her two or three times. He professed not to know why he struck her. (Two witnesses for the State said Billingsley told them that when he feels "high" after drinking, he gets the urge to hit people.) Rosetta fell on the couch and he started to stab her. While doing so Donna Adams, whom he did not know, came into the kitchen. He left Rosetta, went to the kitchen, struck and knocked her down. Then he started to stab her. He heard a movement in the living room and returned to find
Rosetta walking toward the bedroom. He stabbed her some more and she fell on the bed and from there to the floor. Donna came in and he stabbed her an additional number of times. She fell on the bed. He took Donna's coat, dress and pants off, and took Rosetta's pants off, but he denied molesting either of them sexually. Then he put his jacket back on, went to the kitchen, washed off the knife, put it in his pocket and left the apartment. As he left he broke a pane of glass in the door to give the impression that someone broke into the victims' quarters. After leaving he threw the knife in an empty lot around the corner from the premises.
Upon completion of the questioning defendant was taken to the lot where the knife had been discarded. The search for it proved unsuccessful. Billingsley was then returned to police headquarters where arrangements had been made for the appearance of an Assistant Prosecutor and an official court reporter to take his confession in question and answer form. This is in accordance with the practice recommended in State v. Smith, 32 N.J. 501, 554 (1960); certiorari denied 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2 d 367 (1961).
The Assistant Prosecutor testified that before beginning the questioning he advised defendant he had no obligation to answer questions and that if he did, anything he said could be used against him. Corroboration of these statements was furnished by Robert E. Rostoff, the court reporter whose testimony as to the entire confession taking, including the attitude of the defendant, was particularly impressive. After receiving the advice as to his right to be silent, Billingsley at first reverted to his original denial that he had returned to the Lucas apartment on the afternoon of the murders. Then during some discussion as to whether his wife or brother could support his assertion that he was home at the time of the murders, the Assistant Prosecutor said: "Well, when did you start dancing with this girl?" ...