For reversal and remandment of convictions of John Henry Taylor and Shannon -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Haneman. For affirmance of conviction of Edward Lee Taylor -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Haneman. For reversal of conviction of Edward Lee Taylor -- Justice Hall. The opinion of the court was delivered by Proctor, J.
[46 NJ Page 319] The defendants, John Henry Taylor, John Shannon and Edward Lee Taylor, together with six other defendants, John Sanders, Bobby Hines, Vernon James, Thomas Ross, Oscar Bernard and Ernest Taylor, were convicted of sodomy (N.J.S. 2A:143-1) in a joint trial before a jury in the Law Division of the Superior Court, Atlantic County. John Henry Taylor, Shannon and Edward Lee Taylor appealed, and the Appellate Division ordered the appeals
consolidated. Before argument in that court we granted the State's motion for certification pursuant to R.R. 1:10-1A.
The nine defendants were indicted separately for sodomy.*fn1 The State moved to consolidate all the indictments for the purpose of trial on the ground that the alleged offenses occurred at about the same time and the same place and upon the same victim. The defendants opposed this motion and requested separate trials contending, as one of several grounds, that the confession of Edward Lee Taylor named his codefendants as participants in the crime and would prejudice them if introduced in evidence at a joint trial. After hearing the testimony of the alleged victim, George Ellerbee, the trial court granted the State's motion for consolidation without examining Taylor's confession. However, the court did express the opinion that proper limiting instructions would adequately protect Edward Lee Taylor's codefendants if the confession were admitted into evidence.
The essential facts developed by the State at the trial are as follows: Ellerbee was an inmate in the Atlantic County jail where he, and about twenty others, including the nine defendants, were confined to the second floor of the east tier. The doors to the seven cells in this tier did not lock and consequently the inmates were permitted to roam freely around the tier at all hours, to sleep in any bunk that was vacant and to change cells whenever they liked. Ellerbee, who was sharing Cell 6 with Nelson Boyer and Jaico Ruiz, testified that in the early morning of May 15, 1963, the defendants came into his cell. They dragged him out, put a gag in his mouth and a blanket over his head and took him into Cell 7 which was unoccupied because the toilet there had been ripped out. During the struggle the blanket fell off his head. Ellerbee testified that he was forcibly held down while each defendant committed the crime against his person. Although
the lights in the tier had been turned off for the night, Ellerbee stated that he was able to identify his assailants because the ripped-out toilet permitted enough light to come through from the still lighted toilet runway in back of the cell. After the defendants had left him, Ellerbee lay on the floor unable to get up. Boyer picked him up and carried him back to Cell 6, and soon thereafter Ellerbee made a complaint to the guards who then took him off the tier.
Boyer testified that he left Cell 6 and went to Cell 7 about five minutes after Ellerbee had been removed by the defendants. He generally corroborated the testimony of Ellerbee, both as to the occurrence of the crimes and the identity of the assailants. Jaico Ruiz, the third occupant of Cell 6, testified that Ellerbee was dragged out of the cell by several inmates but that he was unable to identify them because of the dark. However, Ruiz contradicted Boyer's statement that he was present in Cell 7 when the crimes occurred. Ruiz said that Boyer did not leave Cell 6 until he went to help Ellerbee about an hour after he was dragged from the cell. Three jail guards on duty that morning testified that Ellerbee was removed from the tier because of the complaint made by him.
Three physicians testified regarding their examination of Ellerbee's rectum. Dr. Cohen, the jail physician, testified that he was requested to evaluate Ellerbee's condition. His examination at 2:00 P.M. on May 15 revealed "a few skin tabs over the anal area" but no evidence of laceration, bleeding, swelling or inflammation. However, he stated that the acts alleged to have been committed by the defendants would not necessarily cause any injury to the anus. Because he was unequipped to make an internal examination, he referred Ellerbee to the Atlantic City Hospital for a more thorough evaluation. Two days later at the hospital, Dr. Arriola found a slight swelling of the anal orifice "with much spasm and tenderness" but no "fissure or laceration." Neither Dr. Cohen nor Dr. Arriola prescribed any medication or treatment. Dr. Davidson, Ellerbee's personal physician, examined him on June 8, 1963, and found "nothing of any pathological significance"
although he appeared subjectively tender. Ellerbee appeared tense and the doctor prescribed a sedative.
The State offered in evidence oral and written statements of Thomas Ross and Edward Lee Taylor, one of the appellants here, and the court in the presence of the jury heard testimony regarding the voluntariness of these statements.
Joseph Venuti, a State Trooper, testified that he commenced investigating Ellerbee's complaint on the morning of May 15, 1963, and interviewed most of the inmates of the second tier east during the course of the day. That night he conducted a second interview of Ellerbee and Boyer at the State Police barracks at Mays Landing, about a mile from the jail. At 2:00 A.M. on May 16, he, with Trooper Mauer, picked up Edward Lee Taylor at the jail and drove him to the barracks, where he questioned him for about an hour and a half in the main room in the presence of Troopers Hendrickson and Darby. Venuti testified that Taylor was not harmed or threatened in any way, and that no promises had been made to him. However, he admitted that no one advised Taylor either that he had a right to remain silent or that anything he said could be used against him. At the end of the interrogation Taylor orally admitted committing sodomy upon Ellerbee. He was then returned to the jail at about 4:00 A.M., and Ross was picked up and driven to the barracks. He was interrogated for about an hour in the main room where Hendrickson and Darby were still present. Venuti testified that Ross was not harmed or threatened and that no promises were made to him. However, Ross was not advised of any of his constitutional rights. At the end of this questioning Ross orally stated that he had participated in the crime against Ellerbee. Venuti testified that at 12:30 P.M. on May 16 he returned to the jail with Trooper Hurden and drove Edward Lee Taylor back to the State Police barracks. After Taylor was advised that any statement he made could be used against him, he executed a written confession in the presence of Venuti and State Police Sergeant Cavileer in which he admitted that he, along with the other defendants,
committed sodomy against Ellerbee. Venuti further testified that Ross did not make a written statement until May 27 when he denied participating in the crime and contradicted his earlier oral statement. The other State policemen corroborated Venuti's testimony that the statements of Edward Lee Taylor and Ross were voluntarily given.
Edward Lee Taylor and Ross both testified that they had been beaten before they made their oral statements. Each testified that he was punched by the troopers while being taken from the jail to the barracks. Ross claimed that he had suffered a broken jaw. Several inmates testified that they had seen the troopers beating Taylor and Ross while they were being taken out of the jail. Taylor's mother and a Reverend Arthur Harris testified that on May 19 they visited Taylor and observed that one side of his face was swollen and that his eyes were bloodshot. Ross was treated for a fractured jaw at the Atlantic City Hospital on May 16. However, all the State Troopers denied that either Ross or Taylor was mistreated in any way at any time. In this they were corroborated by a deputy sheriff and several jail guards. The State introduced evidence that Ross's broken jaw resulted from a fight among the inmates after which his cellmate, Mayo, had been removed from the tier, and on May 19 Ross signed a statement admitting that his injury was so caused.
After considering all the evidence the trial judge concluded that the written and oral statements of Taylor and Ross were voluntarily given. The court admitted Edward Lee Taylor's written confession and Ross's written statement into evidence with the limiting instruction that each was admissible only against the declarant. The oral confessions given by Ross and Taylor were also recounted by Trooper Venuti, this testimony being admitted subject to the same limiting instruction.
All of the defendants except Shannon took the stand and denied committing sodomy. Edward Lee Taylor and Ernest Taylor testified they went to sleep before twelve o'clock and did not know of the alleged assault on Ellerbee until the next morning. Sanders and John Henry Taylor testified that they
were in their bunks and knew only that there had been some commotion in the tier during the night. Bernard and James testified that they slept all that night except when they were awakened on two occasions, first by Mayo and then by Ellerbee calling for the guards to take them off the tier. James also testified that on May 14 he saw Boyer on top of Ellerbee in an act of sodomy. He said he told the others about what he had seen, and that later they had laughingly made remarks about it to Boyer and Ellerbee. Hines testified that he slept all night except for one brief interruption when someone shook him. He also testified that he often saw Boyer and Ellerbee with their arms around each other. Ross testified that he was awakened by a noise, and although he said he had nothing to do with the crime, he saw some men whom he could not identify attacking Ellerbee in Cell 7.
The defense called three other inmates, Brown, Hall and Delaney. Brown testified that nothing could be seen in the cells at night other than the lights in the toilet seats. However, he did not testify about the conditions in Cell 7. He also said that Ellerbee told him he was going to sue the county for damages. Hall testified that he was the cellmate of Hines and John Henry Taylor and that they never left the cell during the time the attack on Ellerbee was alleged to have occurred. However, his testimony was discredited when he was confronted with a prior inconsistent statement he had made to a member of the prosecutor's office. Delaney testified that after the alleged attack Ellerbee had told him "the lights were out completely, and that he couldn't actually tell who the boys were, but he know [ sic ] that it was some of the fellows on the tier, and that he was going to get even with them."
The defense also called two prison guards who testified that the lights in the cell block generally go out at 10:00 P.M., after which only a small amount of light comes through the toilet fixtures from the toilet runway. They both testified that because of the dimness it would be difficult to see anyone's face. However, they admitted that they had not been inside
the cells at night but had only looked into them from the corridor.
Dr. Samuel Dinenberg, a specialist in neuropsychiatry, testified that he had examined Ellerbee on behalf of the defense. He diagnosed Ellerbee as suffering from a psychopathic personality disorder involving the loss of any moral sense, any social responsibility or any sentiment which would involve the conscience of ordinary human beings. He also pointed out that Ellerbee ...