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State v. Funicello

Decided: July 19, 1967.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VICTOR R. FUNICELLO, DEFENDANT-APPELLANT



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Francis, J.

Francis

[49 NJ Page 557] The Essex County Grand Jury returned an indictment against the defendant Victor R. Funicello charging that on April 5, 1965 he murdered Fred Palmarozza in the City of Newark. At his trial before a jury, which began on January 5 and ended on January 31, 1966, the State sought the death penalty. At the conclusion of the testimony and the summations of defense counsel and the assistant prosecutor, the trial judge delivered a thorough charge which contained a fair and comprehensive review of the facts as well as a precise outline of the legal issues to be determined by the jury. The jury was advised as to the verdicts which could be reached depending upon the conclusions reached on the evidence. The verdicts were: (1) not guilty; (2) first degree murder, either as (a) felony murder, i.e., the killing occurred during the course of a robbery; or (b) murder which was premeditated, deliberate and willful, and in connection with the two types of first degree murder, the further instruction was given that if guilt of either one of them was found, the jury should decide whether to recommend life imprisonment, and the jurors were told that if such a recommendation were not made the defendant would suffer death; (3) second degree murder; and (4) manslaughter. In addition the court submitted to the jury with consent of counsel a memorandum listing the possible verdicts, with the suggestion that upon reaching a verdict a check be placed alongside the offense of which guilt was found or alongside not guilty, if that was the conclusion. The jury returned a unanimous verdict of guilt of felony murder without a recommendation of life imprisonment. Thereupon, the defendant was sentenced to death. Direct appeal to this Court followed. R.R. 1:2-1(c). Certain trial errors are alleged as a basis for reversal, the primary one being that defendant's

oral and written confessions were involuntary and should not have been received in evidence. In our judgment the confessions were properly admitted, the defendant received a scrupulously fair trial, and the evidence overwhelmingly supports the jury finding of guilt of first degree murder.

I

Fred Palmarozza, age 60 years at the time of his death, operated a used car lot under the name of Palmer Motors at 687 South 14th Street in the City of Newark, N.J. There was a small frame structure on the lot which was used as an office. It contained a desk, chairs, a couch, a television, telephone, and other incidental equipment and articles.

On April 6, 1965 at about 9:30 A.M., Otto Weil, a business associate of Palmarozza's, came to the office on the used car lot. The door was open a little and he went in and saw the body of Palmarozza in the right rear corner of the room. It was in a pool of blood and in a partially sitting position propped against the wall with the left arm resting on a chair. He called the police immediately, and after they arrived he noticed that a 1963 Ford two-door hardtop was missing from the lot. Four Newark police officers responded within a few minutes; one of them called the Homicide Squad and shortly thereafter Lieutenant Kinney, Sergeant Buerle and Detective Leonardis of that squad arrived. A series of photographs were taken and the body was removed to the morgue. In looking around the office, Sergeant Buerle found an order book showing that on March 30, 1965 Victor Funicello had made a five-dollar deposit on the missing Ford. The book showed the purchase price as $1,600, and contained a further notation "V.F. 4-8-65." Buerle also found a copy of a receipt written on the back of a piece of carbon paper. It was dated April 5 and referred to a 1963 two-door Ford, giving the serial number. The price $1,600 also appeared with the notation "paid in full," followed by Palmarozza's signature, and farther down, the signature of Funicello. One

of the officers discovered in the waste basket an incomplete application for passenger vehicle registration bearing the name Victor R. Funicello. A five-dollar bill was picked up, but no other "real money" was located.

At 2 P.M. April 6, the County Physician, Dr. Edwin H. Albano, performed an autopsy. It revealed that the victim had suffered 11 stab wounds, 24 cutting wounds, and one lacerated wound. The wounds were scattered over a wide area of the body. There were eight cutting wounds of the scalp distributed over the left side of the head, one on the right side of the forehead, one on the right side of the face, a stab wound four inches in depth on the right side of the neck, as well as a cutting wound on that side of the neck, another stab wound almost as deep on the left side of the neck, a stab wound of the right side of the face, 2 I/2 inches deep, a cutting wound in front of the right ear, and below the right jaw, a stab wound of the right flank which entered the abdominal cavity, another on the outer aspect of the right thigh, and two more on the outer aspect of the right leg. There was a stab wound 4 I/2 inches deep of the left chest which perforated the outer wall of the left side of the heart; two more deep stab wounds of the right chest which penetrated the lung were found. Death was caused by the stab wounds of both sides of the chest, the neck and the abdomen, with hemorrhage into both chest cavities and into the sacs surrounding the heart. One wound which would have caused immediate death was the one in the left side of the chest which perforated the lateral wall of the heart. From the nature, location and direction of the wounds it was the doctor's opinion that they probably had been inflicted by a person who was left-handed. It appeared later that the defendant is left-handed.

Some of the wounds the doctor found he described as "defense wounds." They were a cutting wound of the web between the index and middle fingers of the right hand, another of the palm of that hand just below the thumb, a third on its palmar aspect, a fourth through a joint of the fourth

finger, a part of the bony structure protruding through the wound opening, and fifth, a cutting wound on the outer aspect of the right arm. Experience had shown that such types of wounds are inflicted while the victim is trying to defend himself. Specific reference is made to these multiple knife wounds to indicate that Palmarozza did not easily give up his life. In this connection it may be noted also that there were gross marks of spattered blood on the walls and particularly on the floor of the victim's office, indicative of a struggle that took place there.

At about 3 A.M. on April 6, Funicello, then 24 years of age, appeared at the home of Mrs. Estelle Lichen in Jackson Township, Ocean County, New Jersey. Mrs. Lichen and her family, particularly her daughter Michelle, had been friends of his for 11 or 12 years. Funicello was fond of fishing and frequently came to the Lichen home very early in the morning. So Mrs. Lichen admitted him and told him he could sleep upstairs in the room of one of her sons. Early the following morning, he told her and her daughter that he was in trouble. Specifically he said he had made a five-dollar deposit on a 1963 Ford car he intended to buy from Palmer Motors. The price was $1,600, and on the previous day while alone and on the way to complete the transaction he stopped at the Clinton Diner where he met a man he knew only as Tony. He did not know Tony's last name nor where he lived. He told Tony about the impending car purchase and asked if he wanted to go along. Tony agreed and they drove to the lot, where Funicello gave the seller the $1,600. After the seller had made out the bill of sale and a receipt for the money, Tony put the office light out and started to stab Palmarozza. Funicello tried to stop the stabbing and succeeded finally in wresting the knife from Tony, cutting one of the fingers of his left hand in doing so. Funicello said he "panicked" then, ran out, got in the Ford car (which had Palmarozza's dealer registration plates on it) and drove away, eventually reaching the Lichen home. He said also that at some time during the

fracas Tony had taken the $1,600 from the office desk; he did not say just when or how he saw it in the dark.

Funicello told the Lichens that he had gotten sick because of the sight of the stabbing and had vomited on his clothes. So he asked Mrs. Lichen to wash his shirt and trousers. She did so during the course of the day, using the washing machine, but denied at the trial that she saw any blood on them. She said she smelled vomitus but saw no evidence of it. Funicello asked the Lichens also to buy him a shirt, trousers, a pair of socks and shoes when they went shopping, and gave them $20 for the purpose. The daughter made these purchases. While they were out Funicello drove the Ford car, which had been parked in the street, into the Lichens' garage.

Funicello remained there on April 6 and until 10:30 or 11 P.M. on April 7. They read in the paper about the murder and the story indicated the police were looking for the 1963 Ford car. Discussion ensued about his reporting to the police. Although he had shown Michelle Lichen the bill of sale for the car, she testified that he was nervous about the car and decided to abandon it somewhere. About 11 P.M. on April 6 he drove the car to Freehold, removed the ignition keys and abandoned it on a side street, where a Freehold police officer found it at 5:00 the next morning. Michelle followed him in her car and drove him back to her mother's home. It appeared later that on the way back Funicello threw the ignition keys away; also that he tore up the bill of sale and the receipt for the $1,600 payment, and flushed them down the Lichens' toilet. The following day he told the Lichens he wanted to go to the police, explain the matter to them and get it straightened out. That evening both the Lichens and Funicello drove to the Neptune Police Headquarters, arriving there at 11:20 P.M., and he advised the officer in charge of the nature of his mission. Two teletype bulletins had gone out from the Newark police, the first one concerning the missing car and the second indicating that Funicello was wanted for questioning in a homicide investigation. The Neptune officer telephoned the Newark Department and was told that some officers were

already in Monmouth County to pick up another person for questioning, and that they would be dispatched to Neptune. Four Newark detectives, Buerle, Inneo, Leonardis and Dell'-Ermo, arrived there at about midnight and talked briefly with Funicello, who repeated that he wanted to get the matter straightened out. He was asked if he wanted to come back to Newark and talk about it there, and agreed to do so. They drove back to Newark, arriving there about 1:30 A.M. In the car during the ride was Philip Gartner, age 16, a friend of Funicello's whose name had come up in the investigation and who was visiting his grandfather in Wall Township at the time. After Funicello turned himself in at Neptune, Mrs. Lichen telephoned his home in Edison, N.J. and advised his sister that he had done so.

On arrival at Newark Police Headquarters, some preliminary formalities were attended to and then Funicello was taken to the interrogation room. There he was questioned principally by Sergeant Buerle and Lieutenant Kinney, head of the Homicide Squad. Other detectives were in and out of the room during this period; Detective DeStefano of the prosecutor's staff appeared about 3 A.M. At first Funicello repeated the "Tony" version of the killing, with some variations from his statements to the Lichens. In about an hour, i.e., about 3 A.M., after the officers had endeavored unsuccessfully to obtain more specific information about Tony and told him they did not believe his story, he said he would tell them the truth. Sergeant Buerle then began to make notes of the oral admissions.

In substance Funicello told them that he was unemployed; that he had talked to Palmarozza about buying the 1963 Ford he had seen on the used car lot, and had made a five-dollar deposit on the price of $1,600 which he did not have. On April 5, 1965, he visited Palmarozza's office and arranged to meet him at 10 P.M. at a nearby Esso gasoline station where a friend of his, David Ferguson, worked. Palmarozza appeared there driving the Ford, which bore dealer's plates.

Palmarozza agreed to go for a ride with Funicello driving. They left the station and drove to the Clinton Diner in Irvington. After a short stay there they drove to the office at the used car lot. Palmarozza sat at his desk and according to Funicello he talked about "queers" for about 15 minutes. One or more of the detectives said that at one point in the oral statement, Funicello asserted Palmarozza had "grabbed for his privates," which enraged him. (At the trial Funicello denied that this happened or that he said it did to the detectives. The incident does not appear in the written confession, although a reference to the discussion about "queers" is included.) Palmarozza made out a bill of sale for the car, and a receipt identifying it and showing payment of the full purchase price. After the receipt had been signed, Funicello hit Palmarozza in the head with his left fist. As Palmarozza stood up Funicello drew a dagger-type knife and stabbed him twice in the stomach area. Palmarozza pushed him and again he stabbed him in the same area, whereupon the wounded man went toward the office couch, at which Funicello put the light out, closed the door and drove away in the Ford. Then he told how he went down to the Lichen home and remained there until turning himself in to the Neptune police.

In this oral confession he told of asking Mrs. Lichen to wash his clothes because he had noticed there were blood stains on the left knee of his trousers. And he said he explained to the Lichens that the cut and swollen left hand he had received in the course of the killing came about in his effort to prevent Tony from stabbing Palmarozza. Further he said that when he drove the Ford into the Lichen garage, while Mrs. Lichen and Michelle were out shopping, he threw the knife he had used in the killing into a corner of the garage. Funicello, who insisted the Lichens were in no way involved, asked if he could write a note to Michelle, and he was permitted to do so. The note, which was in his own handwriting, follows:

"Miki please tell the police everything I told you and your mother tell then that I gave you $20.00 to buy the clothes and tell then that you wash my clothes ther is a knife in the garage which I didn't tell you about tell then that you and your mother held me move the car. please don't worry about anything I sorry about any trouble I gave you and your mother."

The oral confession was finished at 4:40 A.M., April 8. Apparently it was the intention of the officers to reduce it to writing. Funicello said he was tired and needed some rest. The questioning then ceased and he was removed to a cell. At 9:40 A.M. he was brought back to the interrogation room, where he agreed to give a written statement. The questioning began at 9:45 and the typed, single-spaced confession in question and answer form, covering four and three-quarters pages, was completed at 12:33 P.M.

In accordance with the established practice, a preliminary hearing as to the admissibility of the oral and written confessions was conducted by the court. State v. Smith, 32 N.J. 501, 557-560 (1960), certiorari denied 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2 d 367 (1961); State v. Jackson, 43 N.J. 148, 166-167 (1964); State v. Wolf, 44 N.J. 176, 193-194 (1965); State v. Billingsley, 46 N.J. 219, 232 (1966). It was held out of the presence of the jury. Defendant objected to their introduction in evidence on the ground that the State had failed to establish that they were voluntarily given. The trial court, after an exhaustive review of the facts, found that the State had proven their voluntariness beyond a reasonable doubt, and admitted them. See State v. Yough, 49 N.J. 587 (1967). As has been indicated, defendant challenges that finding, and we shall deal more fully with the issue hereinafter.

On the basis of the note to Miss Lichen and the confession of Funicello, the State obtained from the Ocean County Court a warrant to search the Lichen premises. A search was made there on the afternoon of April 8. A hunting knife, later identified as the defendant's, was located in the garage in the area described by Funicello, and a shirt, a blood-stained

pair of trousers and a blood-stained black jacket (admittedly the defendant's) were found in the house. They were seized and introduced in evidence at the trial. An expert chemist and toxicologist examined the articles of clothing and testified for the State. The black zipper, outer jacket, which had not been laundered, was widely stained with type "O" blood, the decedent's type of blood. There was tissue staining as well as the blood on the jacket, indicating a rubbing off of Palmarozza's skin through contact with it. Even though the trousers had been laundered, blood stains were found just below the right knee. The type could not be ascertained due to the laundering. No trace of vomitus was found on any of the clothes.

This expert witness also examined the sport jacket and trousers the decedent had worn when attacked. He testified that in addition to multiple knife cuts, the right pocket of the jacket and the left leg of the trousers were torn.

On this appeal defendant argues that the knife and articles of clothing seized were the fruits of the illegally extracted confessions and note, and should have been excluded at the trial upon his objection.

One of the three final questions, just above defendant's signature on the written confession, asked if there was anything he wanted to add thereto. He answered, "No, Sir. I just want to say that Philip and Dave and my girl friend and her mother are not involved and had nothing to do with it." The Philip referred to is Philip Gartner, the 16-year old young man who was picked up in Wall Township and rode back to Newark with defendant and the police on the night Funicello turned himself in. Dave is David Ferguson, who was employed at the Esso gasoline station where Funicello met Palmarozza on the evening of the homicide. Gartner had known the defendant and been friendly with him for about two years; Ferguson, who was married and had two children, had been a fairly close friend for about seven years. Both men testified for the State.

Ferguson testified that on Saturday, April 3, 1965, Funicello sold his 1954 Cadillac for $75. This is a conceded fact in the case. When the transaction was completed, Funicello removed the registration plates as well as a .32 caliber revolver, a hunting knife and other articles from the Cadillac and put them in Ferguson's car.

Some time prior to April 5, Funicello said he was going to buy a 1962 to 1963 Ford from Palmer Motors, and had placed a five-dollar deposit on it. Knowing defendant was unemployed, Ferguson asked him if he had any money to which he replied that he had none but he would get the car "no matter what." On one occasion during the week before April 5 in the course of conversation, Ferguson testified Funicello said he was going to go into Palmarozza's, "hold a gun on him, make him sign the bill of sale over and then he'd take him down and bury him down Island Beach;" he said it would have to be during the week because too many people were there on week-ends.

Around noon on April 5, Funicello borrowed Ferguson's car to drive to his home in Edison, N.J. Philip Gartner accompanied him. According to Ferguson, Funicello's hunting knife was in the ashtray of the car. Gartner saw it there during the ride to and from Edison, and described it as about 12 inches long. When they arrived at defendant's home he removed the .32 caliber revolver from the front side panel of the car and brought it into the house. Gartner testified that while they were riding back to Newark, Funicello told him that he was going to buy the Ford car he had previously pointed out on the used car lot, "that he liked that car a lot and that he was going to get that car, and that he would make the man sign the bill of sale for it so it would be in his name"; "he said that he would hold the man up." He told Gartner if he wanted a car he would get him one too, but Gartner told him "I don't want nothing to do with it." Gartner went to the shore with his grandfather on the evening of April 5, and was there when the police officers came to see him.

When Funicello and Gartner got back to the Esso station, according to Ferguson, the hunting knife was still in the ashtray, and was there as late as 7:30 P.M. Later in the evening defendant came back to the station, told Ferguson he had an appointment there with Palmarozza at 10 P.M., that he was tired, and asked if he could take a nap in Ferguson's car. Ferguson having no objection, defendant got in the car, after asking to be awakened by 10 P.M. At 10 P.M. Palmarozza arrived driving the 1963 Ford, and after Funicello had paid for some gasoline they left together, defendant driving. Around 11 P.M. when Ferguson went to his car, the hunting knife was no longer in the ashtray. While on the witness stand he identified the knife that had been located in the Lichens' garage as owned by the defendant and the one that had been in his car. In Funicello's oral confession he admitted taking the knife from Ferguson's car before getting in the Ford car with Palmarozza.

Funicello testified in his own defense. He conceded his friendship with Ferguson and Gartner. In fact he had been fishing with Ferguson at Island Beach on the Saturday before April 5. He agreed generally with their statements about his activities on April 5, but he denied ever saying to either one of them that he would hold up or kill Palmarozza to get the Ford car. In this connection, it may be noted that when questioned in his written confession as to whether he ever talked to anyone about killing Palmarozza he said: "Yes, in a kidding way I told Dave Ferguson and Philip Gartner that I was going to kill Fred to take the car." Further he denied that the knife the police recovered in the Lichen garage belonged to him. He owned one "something like it," but the one used in the stabbing was not his. Moreover, he denied he had transferred his knife or the .32 caliber revolver to the Ferguson car when the Cadillac was sold. The gun belonged to his ...


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