For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
Wilbert Sinclair and Jesse Edward Wilson after a joint trial were found guilty by a jury of first degree murder without a recommendation of life imprisonment on two indictments, one for the murder of Esther Friedman and the second for the murder of Shep Binyard. Each defendant was sentenced to death on both convictions and appeals to this Court under R.R. 1:2-1(c). Defendant Wilson also applied for post-conviction relief. The denial of this application is also before us on these appeals.
Prior to trial Sinclair moved for a severance. This motion was denied. It was repeated and again denied during the voir dire and during the trial itself.
Prior to trial the court conducted a preliminary hearing to determine the competency of Wilson to stand trial. Dr. Zigarelli, called by counsel for Wilson, testified that Wilson was a sociopathic personality with paranoid characteristics and was not able to communicate with counsel in his defense; however, treatment by tranquilizing medications for several months would sufficiently remedy the condition to enable Wilson to stand trial. Dr. Kesselman, called by the prosecution, and Dr. Flicker, called by the court, were in basic agreement with the diagnosis of mental impairment but concluded that Wilson had sufficient present mental capacity to understand
his situation and assist in his own defense. The court ruled that Wilson was fit to stand trial.
The principal prosecution witness, Abraham Friedman, testified that on the evening of October 24, 1964 at about 8:30 he was working in his package liquor store in Newark with his wife Esther. One customer, Shep Binyard, was in the store. Two "colored fellows" then walked into the store. In court Friedman identified the two men as defendants Sinclair and Wilson. Wilson attempted to sit down on a chair but fell. Sinclair sought to purchase first corn liquor and then other whiskey but was refused because Friedman thought Wilson was intoxicated. Sinclair then took out a gun and said: "[T]his was a stickup and if you be quiet nobody will get hurt." Mrs. Friedman then said: "[T]ake whatever you want but please leave us alone."
Sinclair then directed Wilson "to go behind the counter and go to the register to get the money." Wilson ordered Friedman "down toward the back of the counter, back of the store with him." Friedman said that Wilson did not know how to open the register, so he showed Wilson who then opened and reached inside the register after pushing a button and turning a handle. At this moment Shep Binyard, the customer, approached Sinclair and said: "Why don't you fellows be nice and let these good people alone?" Just after saying this, Binyard was shot by Sinclair. Then Sinclair moved toward the back of the store; but when Mrs. Friedman started to scream and tried to run out of the store, he followed her and shot her. Both shootings were fatal.
Wilson, who was still at the register with his hands inside it, was then struck on the head by Friedman with a bottle of whiskey. Friedman then ran into the rear of the store to a walk-in icebox which contained a burglar alarm. Wilson started to pursue him, and Friedman threatened him with a broken bottle. Wilson then turned, and seeing that Sinclair had gone, he ran out. Friedman pushed the alarm and went to look after his wife. No money was taken.
Friedman further testified that about 9:30 that evening he was taken to the Newark City Hospital by the police, saw Wilson there among several other people, and identified him as the man he had hit with the bottle. Later at police headquarters Friedman picked out from among eight to ten photographs shown to him by the police the photographs of Wilson and Sinclair as showing the men who were in his store. He also identified Sinclair that evening at the police station from among several Negro plainclothes men as the man who shot his wife.
Between 8:30 and 9:00 in response to the alarm about ten policemen and one newspaper reporter arrived at the store. One of the policemen, Officer Purcell, testified that when Friedman told him what had happened, no mention was made of Sinclair's saying "this was a stick-up." Also, no mention was made of Wilson opening the register. Rather, Friedman refused to sell Wilson and Sinclair liquor, and Sinclair took out the gun when Friedman tried to assist when Wilson fell. Sinclair said: "Stay away from him, everybody step back." Friedman then ran to the back of the store to sound an alarm, Wilson followed him, and the two men scuffled in the rear of the store. The fatal shots were fired after Wilson and Friedman fought and not before.
Detectives Moore and Farese testified that Friedman told them that evening at the store that one of the men had taken out a gun and announced a stick-up; however, they did not have in their joint report any mention of Wilson opening the cash register. Moore said that Friedman did not tell him that Wilson went to the cash register. Farese said that Friedman did mention Wilson going to the cash register, but the detail was not in the report because no money was taken and Farese thought he would remember the detail. Detective Alford also testified that Friedman said that evening at the store that one of the men had taken out a gun and announced a stick-up, but there was nothing in his report about the other man opening the cash register.
Officer Blasi at 8:40 that evening dusted the store for fingerprints but found none. He testified that he checked the cash register for prints, but his report said only that he checked two counter tops, a chair, and assorted bottles. Blasi said that he intended the reference to the counter top on which the cash register stood to include the register.
At 8:45 on the fatal evening Officers Patterson and Lebo, after receiving a general alarm on their police radio, proceeded to the general area where the crime had occurred, and saw a man on the street bleeding from his head. This man was identified as Wilson, and he told the officers that he had been mugged. The officers took him in their car and started to drive to Newark City Hospital. As they were driving a description of the two men involved in the liquor store killings came over their police radio, and Patterson called headquarters that he was taking a person who fit the description of a suspect to City Hospital and that eyewitnesses should be brought there.
Wilson was treated in the emergency room by a nurse who found slivers of glass in his head. The nurse also was present when Friedman saw Wilson there, and she testified that Friedman said: "He is the one I hit over the head. He is the one that robbed me, robbed us." Officers Patterson and Lebo also testified that Friedman identified Wilson at the hospital as the man involved in the shootings. Detectives Moore and Farese also testified that they observed Friedman make this identification.
While Wilson was giving a statement to the police at headquarters, he told them he had been with Sinclair, and police officers went to apprehend Sinclair. The police saw Sinclair walking near his mother's home, called for him to stop, and pursued him when he did not. The police observed him throw an object under a car shortly before he was arrested. The object was a gun. At trial expert evidence was given that the bullet fatal to Mrs. Friedman was fired from this gun, and the bullet which killed Binyard might have been fired from this gun. Sinclair was then taken to police headquarters.
Officers Alford, Guglielmo, and Buerle testified that they saw Friedman identify Sinclair at headquarters as the man who had shot his wife.
The prosecution also introduced expert testimony that the glass found in Wilson's head wound came from the bottle which Friedman had used to strike the man he said was Wilson. The expert said he found blood marks around the icebox in the rear of the store but none around the cash register. Also, this expert said that powder burns on Binyard and Mrs. Friedman indicated that both fatal shots were fired when the gun was within an inch of the victims.
Sinclair did not take the stand in his defense. He called Michael Unger, the newspaper reporter who was at the store that evening. Unger said he heard from Friedman in response to questions by police and himself a version of the events which did not include any mention of an attempted hold-up or any mention of Wilson opening the cash register; rather, Sinclair took out the gun after Friedman refused to sell him liquor. Unger also said that he asked Friedman if there was an attempted hold-up, and did not receive a direct answer: "What he did say was no, 'the men came in, they were drunk, I saw their condition and I refused.'" Sinclair also called Emma Davis, Wilson's sister, who testified she saw Sinclair and Wilson in a tavern in Newark on October 24 about 6:00 P.M., and both men were drunk, "very high." She also said that the two men tussled over some object but she did not notice what it was.
Sinclair objected when Wilson took the stand in his own defense. Sinclair called Dr. Liebhauser who testified that Wilson lacked sufficient mental ability to give competent testimony. The trial judge, after Wilson was examined in court by counsel and the trial judge as to his competency, and after referring to testimony from the pre-trial hearing to determine Wilson's capacity to stand trial, denied Sinclair's objection and ruled that Wilson was competent to testify.
Wilson told of his very limited education and of two severe head injuries he had received in 1956 and 1961 which sometimes caused him to black out. He said that starting at 4:00 P.M. on Friday, October 23 after he finished work, he had consumed large amounts of wine, whiskey and beer in the company of Sinclair and never wanted any corn liquor. He met his sister, Emma Davis, in a tavern on Saturday around 7:00 P.M. and showed her his gun which he had taken from her apartment shortly before. He then dropped the gun to the floor, and Sinclair picked it up and kept it.
Wilson testified he had no memory of what happened after seeing his sister until he found himself alone standing before the Robert Treat School. After walking a few blocks he noticed that he was bleeding from the head. At that spot, some six blocks from Friedman's liquor store, he met Officers Lebo and Patterson. He told the police he was mugged because he had some enemies in the area. He first requested that the officers take him to Bellevue Hospital, but after learning he was in Newark and after the officers said they were going to Newark City Hospital, he requested to be taken to Beth Israel Hospital saying he had hospitalization insurance.
Wilson did not deny that he might have been in the liquor store during the interval for which he claimed an absence of recollection, but did deny any intent to rob or kill either of the ...