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State v. Franklin

Decided: July 16, 1968.


For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Goldmann and Schettino. For affirmance -- None. The opinion of the court was delivered by Goldmann, J. (temporarily assigned).


Defendant was convicted of murder in the first degree and sentenced to life imprisonment upon the jury's recommendation. He appealed, advancing several grounds for reversal. In State v. Franklin, 49 N.J. 286 (1967), we considered only the argument that the trial judge erred in failing to compel Carrie Pitts, the State's principal witness, to submit to a psychiatric examination which might have indicated that her mental condition was such as would have provided a basis for challenging her competency as a witness.

Defendant had prior to trial obtained an order appointing a psychiatrist, Dr. Kesselman, to examine Miss Pitts and determine her competence to testify. When she refused to

submit to such an examination, defense counsel unsuccessfully moved for an order compelling her to do so. In order to have a complete record, we directed that she submit to the examination and that Dr. Kesselman's testimony then be taken before the trial judge. Upon consideration of that testimony and any additional evidence that might be offered by the parties, the judge was to rule on Miss Pitts' competency and, if he found her competent, state whether the evidence adduced could have changed the result of the trial. We remanded the matter for that purpose, directing that the additional record, together with the trial judge's ruling, be returned to this court, the parties to file supplemental briefs addressed to his ruling. We retained jurisdiction.

Carrie Pitts duly submitted to the psychiatric examination. As ordered in our remand, the trial judge conducted a hearing at which Dr. Kesselman testified, as did defendant. The doctor's diagnosis was, "Personality pattern disturbance, emotionally unstable personality with alcoholic tendencies (in remission)." In his opinion Miss Pitts was, at the time of the alleged offense as well as at the time she testified, able to understand the nature and quality of her behavior, knew and was able to differentiate right from wrong, and was competent to testify as a witness. At the close of the testimony the trial judge stated:

"I am satisfied, gentlemen, when Carrie Pitts was offered as a witness in this trial that she was competent to testify, and I am satisfied now that she was competent to testify, and I am satisfied, further, that any testimony that has been adduced here today would not have resulted in a change in the outcome of the trial."

The supplemental record and briefs having been filed, we now address ourselves to the arguments initially advanced and not resolved in our earlier opinion. Defendant contends that (1) the admission into evidence of the signed statement he gave the police violated due process; (2) the trial judge abused discretion when he refused to hear his testimony, outside the presence of the jury, as to the voluntariness of that

statement; (3) he erred in restricting cross-examination of Miss Pitts on the question of her chronic alcoholism, and (4) he improperly denied the defense motion for judgment of acquittal.


Shortly after 6:30 A.M. on May 19, 1965 Gary Bruce Smith was found dead in a parking lot in the vicinity of Mulberry, East Kinney and Orchard Streets, Newark. The immediate cause of death was a stab wound through the heart. Post-mortem examination revealed that Smith had also been stabbed in the back and chest; there were cuts on his chest and arms and lacerated wounds and abrasions on his head. Close by the body was the victim's parked car, and scattered in the vicinity were his car keys, a nickel, a fountain pen and a pair of eyeglasses. Smith's shirt had been torn and the left front and right rear trousers pocket ripped out. Found on the scene were three large sticks, two of which tested positive for blood of the victim's type. The police found no trace of Smith's wallet.

Defendant was arrested as a material witness at about 1 A.M., Sunday, May 23. At headquarters he told the arresting officers that Carrie Pitts was involved in the homicide and gave them her address. After that address had been checked out defendant was photographed, fingerprinted and admitted to the headquarters cellblock. The police observed that he had a scar over his left eye.

Defendant remained in custody at police headquarters from May 23 until his preliminary examination in municipal court shortly after noon on May 26. Several detectives questioned him on a number of occasions during that period. On Tuesday morning, May 25 defendant signed a statement admitting his participation in the incident resulting in Smith's death.

Since Miss Pitts was chief witness for the State and her credibility under attack by defendant, we detail her testimony at some length, particularly with reference to the

drinking she did on the evening in question. She had known defendant for almost a year. Although described as his "girlfriend," their relation was not so innocent a one; it appears he was her procurer. Both were Negroes.

On May 18 Miss Pitts left work in South Plainfield to visit defendant in Newark. She testified she met him at his home, 131 Lincoln Street, at 6 P.M., had dinner there, and then visited several bars with him. At about 12:30 A.M. she left him at the Dreamland Bar on Mulberry Street and went to the B & M Bar nearby, where she met Smith, a white man, as she was going into the place. They had "a few drinks" there. Defendant came in later and bought them "a couple rounds of drinks." Smith played a game of pool with defendant and then left the bar with her at about 1:45 to go to the Key Club. The place was just closing and so, at her suggestion, they went to defendant's home in Smith's car. Defendant's wife let them in and then went back to bed. The two had some drinks and left in about half an hour to go to 285-287 Mulberry Street, a hotel premises where the Dreamland Bar was located. Smith parked his car and the couple went upstairs to a room which defendant rented and to which Miss Pitts had a key. She said that Smith removed his shirt and pants and lay down across the bed; she remained fully dressed. After casual talk she asked Smith to leave some money to pay for the room, and he allegedly told her to look in his pants pocket and get his wallet. She did so and watched him count the money. He gave her $10 and then put his wallet, containing $32, in his back pants pocket.

At about this time a young woman, Geraldine Hilliard, knocked at the door. Miss Pitts, who knew her only as "Jerry," let her in and introduced her to Smith. Soon all three left to go down to the street. It was then after 4 A.M. Smith asked if Miss Pitts wanted to get some coffee and "other drinks." She refused the invitation and he then drove off. Miss Pitts walked down Mulberry Street and cut through the parking lot near Orchard Street. Smith

drove in, parked and asked her to get into the car because he wanted to talk to her. She testified that after she got in two men suddenly appeared, one on each side of the car. She could not tell who the man on Smith's side was, but could distinguish the one near her -- a young Negro whom she did not know and who had a board in his hand. When he swung her door open and asked what she was doing in the car, she managed to get out and run away. After riding about in a taxicab for 15 or 20 minutes she saw defendant on Broad Street and picked him up. She noticed a bleeding cut on the side of his left eye and asked what happened. According to her, defendant said that Smith threw a stick at him and that "they had a hell of a struggle around there." Asked whether Smith was hurt, defendant's answer was "I don't know. I think so," and then suggested that they go back to the parking lot and see about it.

Miss Pitts testified that when they got back to the parking lot and she saw Smith lying on the ground, she said to defendant, "He looks like he's dead," to which defendant replied, "Yes, he may be." Asked if he had taken Smith's money, he said he had not. Miss Pitts then asked, "Well, you didn't kill him, did you, because he looks dead?" Defendant said, "No, I did not kill him but I don't know what that boy did."

Miss Pitts stated that defendant then arranged to have a man drive her back to work in South Plainfield, and accompanied her on the trip. She saw defendant again that evening, at which time she again asked whether he had killed Smith. He replied that he "definitely did not kill that man but they had a fight."

The police had taken Miss Pitts into custody on Sunday night, May 23. Cross-examination elicited the following:

"They asked me to give them a statement. They questioned me and questioned me but I didn't give a statement that night, but the next morning [Monday, May 24] when they took me down there was when I give the statement.

* * * I gave the same statement that Eugene Franklin was supposed to have given them.

Q. You mean they told you what Eugene Franklin had said? A. That's right.

Q. Did they tell you the statement that Eugene Franklin had given them? A. Well, I'd like to say this: I didn't give the same statement but some of the things that's written there or some of the things they told me that Eugene Franklin had given them as a statement.

Q. I see what you mean. In other words, the police in questioning you * * * told you some of the details of what was supposed to have occurred on the night of May 18 and the early morning of May 19? A. That's right.

Q. Details which you have forgotten or didn't remember or didn't know. A. I didn't forget any of them."

Miss Pitts said she had seen defendant when he was brought to headquarters on May 23. Asked whether she had noticed his condition, she replied, "I noticed that he had a ...

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