For affirmance and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Haneman, J.
[52 NJ Page 304] Defendant, a Caucasian, was convicted of the first degree murder of State Trooper Anthony Lukis and sentenced to death. He appeals under R.R. 1:2-1(c). At trial, defendant produced no witnesses, relying on his assertion that the State had failed to produce sufficient evidence upon which a guilty verdict could be based. In addition to the brief filed by defendant's court appointed counsel,
defendant filed a supplemental pro se brief. These combined briefs advance the arguments, inter alia, that (1) there was insufficient evidence to warrant a guilty verdict, (2) the admission into evidence of two confessions was improper, and (3) the alleged refusal of trial counsel to permit defendant to testify in connection with the proffer of the statements and the refusal of his counsel to interrogate and call a certain witness constitute reversible error.
The State's evidence, which as noted was not disputed and which is as follows, indicates that Trooper Anthony Lukis who was assigned to the New Jersey Turnpike reported to the Moorestown Station shortly before midnight May 4, 1966. Some time thereafter he left the station to begin a routine patrol of a designated section of the Turnpike. At 1:15 A.M. he reported his position as two miles north of Exit 4.
Preston Thomas, an assistant section chief who was traveling north in order to collect money from the various toll booths, left the booth at Exit 5 at about 1:30 A.M. As he entered the Turnpike he noticed a police car put on its dome light and begin to pull up to a "tan or beige Mustang" which was stopped at the side of the road near milepost 45 north, some 1,000 feet from the entrance ramp. Thomas observed one individual in the Mustang but, noticing nothing wrong, continued northwardly.
At approximately the same time Alfred Niedermaier, a truck driver traveling south, approached milepost 45. He saw a police car stopped behind another car. As they were on the other side of the Turnpike he paid no more attention until he drew closer. At this point he saw two men engaged in a struggle. He proceeded to the toll booth at Exit 5 where he reported the incident and heard the collector call for help. As a result of this call the State Troopers' Barracks attempted to contact Lukis' car and, receiving no answer, dispatched another car to the scene.
At the same time Niedermaier was reporting, Raymond Pitts, driving his truck north, approached the two cars. He
noticed "a trooper tussling with some guy" and what appeared to be a third figure standing at the rear of the trooper's car. He stopped his truck and ran back to help the trooper but was in time only to hear shots and see a Caucasian jump into a red Mustang and drive off. He then flagged down William Truitt, another truck driver, who used Lukis' radio to report an emergency, request an ambulance and warn that a red Mustang might be involved. The Turnpike radio control immediately broadcast this warning and just as it came over the radio, two Negro occupants of a maroon Mustang paid the toll at Exit 5 and left. Another vehicle's driver, a Caucasian, reported a lost ticket, filled out a form (signing his name as John Park) and drove off. (In his confession, defendant admitted he had used the name "John Parker" in exiting from the Turnpike).
Meanwhile Troopers Trauger and Bernhardt arrived at the scene where they found a New York driver's license bearing the name of the defendant on the seat of the trooper's car and a wallet belonging to Al Antino of Brooklyn in the grass to the rear of the car. It later developed that Antino's car in which he had left his wallet, had been stolen and later recovered without the wallet.
By 2:00 A.M. the State Police had put into operation a plan called the Delaware Valley Search Plan. In accordance with this plan Troopers Dory Saul and Barry Townsend took up positions on Route 30 near Paulsboro. At 3:20 A.M. a bronze Mustang drove past and the troopers gave chase in their cars. The chase continued for some five or ten minutes when the driver of the Mustang, identified by Townsend as a white male about six feet tall and weighing 185 lbs., abandoned the car and fled. Townsend examined the car and found a box of .32 caliber shells, a Turnpike ticket, and a lease contract for the car.
By this time a large concentration of police was in the area. Sergeant Gilcrest of the Woodbury Police heard someone in a wooded area nearby, pursued him and was able to hear him ...