For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
David Guy Baldwin was convicted of the murder in the first degree of Anthony Scannella and was sentenced to life imprisonment pursuant to the jury's recommendation. He appealed directly to us. R.R. 1:2-1(c). Before argument, the matter was remanded to the trial court to permit a motion for a new trial based upon recanting by a State's witness. That motion was denied, and the order thereon is before us with the main appeal.
Defendant, Scannella (the deceased), Joseph La Macchio and Louis Tuccillo, were jointly indicted for robbery. Scannella confessed to his part in the robbery and agreed to testify for the State against the codefendants. The jury could readily find defendant knew Scannella had agreed so to testify, and the State's thesis was that defendant killed Scannella to silence him. The robbery trial was scheduled for Monday, October 5, 1964. The homicide occurred during the morning of Saturday, October 3.
The proof was clear that defendant and Scannella were together during the evening of October 2 and the early morning of October 3. Louis Tuccillo, one of the codefendants in the robbery case, testified he loaned his car to defendant on October 2. Using that car, defendant and Scannella visited a number of places. They were together at a bar in Trenton at a time approaching midnight, and still later at a restaurant in that city. Thereafter defendant and Scannella were at the Demi Club in Langhorne, Pennsylvania. They left the club together at about 4:30 A.M. in the Tuccillo car. At about 7:00 A.M. defendant was alone in the car near Trenton. The evidence indicates strongly that Scannella was shot at about 6:00 A.M. The locale was a remote spot in the State Game Preserve, Colliers Mills, in Jackson Township.
The Tuccillo automobile figured prominently in the proof. It was a 1958 Plymouth in poor operating order. It had to be pushed to be started at 4:30 A.M. at the Demi Club. October 3 happened to be the opening of the bow-and-arrow hunting season. Hunters at the preserve testified that they
saw a car resembling the Tuccillo auto and emitting a loud engine knock, proceed toward the spot where the body of the deceased was later found, and then away from that area; and that gunshots, notable because hunting was then permitted only by bow and arrow, were heard at about 6:00 A.M. The car broke down near Trenton, and because of the breakdown, defendant's presence there at about 7:00 A.M. was established through a service-station operator whom defendant called for aid. The service station was located 18 to 25 miles from Colliers Mills. Soil and weeds were recovered from the car, vegetation being found both in the car and hanging from the rear bumper. There was testimony identifying the soil samples so recovered with the soil of the murder area.
Also found at the scene of the murder was a comb which, inferentially, could have been dropped by the killer. Expert testimony, actually of little probative value, was to the effect that hair particles thereon were of a general category into which defendant's hair would fall.
There was testimony that defendant was familiar with the area within the hunting preserve.
The State produced Anthony Patricella, who testified that in August of 1964 defendant offered him $15,000 to $20,000 to do away with Scannella, defendant suggesting that lye be injected into Scannella's vein. Scannella apparently was a narcotics user. Richard Cordine, who met defendant while defendant was in jail on this homicide charge, testified that defendant said it was just his luck that it was opening day of the bow-and-arrow season, and that if the case against him became "warm," he might offer a plea to murder in the second degree. These statements, although devoid of a direct admission, were nonetheless inculpatory. It was the recantation by Cordine which led to the application for a new trial to which we have referred and of which we will say more later on.
The defense acknowledged that defendant and Scannella were together until 4:30 A.M. The defense contended their attitude was one of warm friendship. Indeed the defense showed that Scannella was wearing defendant's shirt and
jacket when he was slain. The defense contended, but without direct proof, that Scannella had decided not to testify for the State in the robbery case, and in support of that thesis the defense offered testimony designed to show that Scannella was about to change counsel. The trial court's ruling on that offer presents one of the issues to which we will later refer. The State countered with the contention that the show of friendship was but a pretense; that defendant intentionally took Scannella to places where they would be seen in a jovial mood in anticipation of the charge of motivation the State here makes. We add that robbery of Scannella was negated; the sum $194.88 was found on his person.
Defendant, who was the only one who could say when and where he and Scannella parted after leaving Langhorne, Pennsylvania, together at 4:30 A.M., did not take the stand.
The first issue revolves about the subject of alibi. By bill of particulars, the State fixed the time of the homicide between 4:30 A.M. and 10:00 A.M. The spread is between the time when Scannella was last seen alive and the time when his body was found.
The State demanded a bill of particulars of defendant under R.R. 3:5-9(a), which reads:
"If a defendant is to rely in any way on an alibi, he shall, on written demand of the prosecuting attorney, furnish a written bill of particulars, signed by him, and stating the specific place or places at which the defendant claims to have been at the time of the alleged offense, and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi. Such particulars shall be furnished the prosecuting attorney within 10 days from the service of such demand."
"1) The specific places at which I was at the time of the offense alleged against me: From the hours of approximately 4:30 a.m. Saturday morning, October 3rd, 1964 until approximately 7:00 a.m. on said morning, I was enroute in a 1957 green two-door Plymouth automobile
from Trenton, New Jersey, to Seaside, New Jersey, and returning to Trenton, making the trip to the best of my present recollection by passing through Yardville, Allentown, Jackson Township, Lakehurst and Toms River.
2) The names and addresses of the witnesses upon whom I intend to rely in order to establish my alibi, subject to certain additional inquiries with respect to presently unknown witnesses are:
A) David Guy Baldwin, the undersigned.
B) A woman, name and address presently unknown to me, except that I believe her first name to be either Loretta or Lola and her residence to be Seaside, who has reddish-brown hair, is approximately 30 to 35 years of age, is approximately 5 ft. 5 in. in height and about 125 to 130 lb. in weight.
C) A man whose name and address is presently unknown to me, driving a 1953 or 1956 Mercury, who stopped and assisted me when my car broke down somewhere between Allentown and Trenton at about 7:00 A.M. Saturday morning, October 3rd, but whom I believe to be an employee at Thermoids.
D) One or more service station attendants whose names and addresses I believe to be: Elmer Schappell, 3151 Broad Street, Trenton, New Jersey, and Elmer Huntington, 717 Trenton Road, Fairless Hills, Pennsylvania, who are employed at an Esso Station in the vicinity of the Broad Street Circle which is called the White Horse Circle, on Broad Street in Trenton, one of whom returned with me to my car and towed the same to the station and thereafter again towed the car into the City of Trenton."
We note that the course of travel so specified would take the defendant on a route which would pass close by the scene of the murder, the scene being reached by a rather brief stretch of dirt road from the highway running from Allentown to Lakehurst.
Defendant thereafter made a demand upon the State under R.R. 3:5-9(b) which reads:
"Within 10 days after receipt of such bill of particulars from the defendant, the prosecuting attorney shall, on written demand therefor, furnish the defendant or his attorney with a written bill of particulars stating the names and addresses of the witnesses upon whom the State intends to ...