For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
The defendants were convicted of murder in the first degree with recommendations of life imprisonment and were so sentenced. They appealed to this Court as of right under former R.R. 1:2-1(c).
On August 27, 1965 the three defendants drove to a bar located near the Rickshaw Inn, Cherry Hill, New Jersey. Mayberry and Kestner were in a car which had been rented in the name of Elmer Swartwood and Miller was in a car which had been stolen from a parking lot. The three defendants then drove to the Rickshaw Inn in the stolen car. Mayberry and Kestner went into the Inn, leaving Miller outside with the car. Inside the Inn, Mayberry, armed with a revolver, approached Frank Adamucci who was a part owner of the Inn. Kestner had pointed him out to Mayberry and Mayberry pushed Adamucci towards a corridor where they had an argument and a scuffle. In the course thereof, Adamucci was shot and killed by a single bullet from Mayberry's revolver. Mayberry himself suffered a gunshot wound on his finger. As Mayberry ran from the corridor, with his gun drawn, he collided with an attendant and threatened a patron who tried to stop him. There was strong testimony that Kestner also had a gun drawn and aided Mayberry's escape. Both Mayberry and Kestner ran to the waiting car driven by Miller and off they went with lights out. They then transferred to the rented car in which they drove off quickly to Delaware.
On August 30, 1965 Kestner was taken into custody. Later Miller was arrested in Illinois and Mayberry was arrested
in Georgia. The three of them were indicted for murder and, after various preliminary steps, they were brought to trial in January 1966. The trial was a lengthy one with the State producing numerous witnesses and the defendants themselves testifying along with witnesses on their own behalf. The State charged that the three defendants were in the process of a planned robbery during which Mayberry killed Adamucci and that the three of them were guilty of murder in the first degree. The claim of the defendants was that Kester and Mayberry had gone to collect a debt which Adamucci owed Kestner, that Adamucci had pushed Mayberry jarring the gun out of his belt, that a tussle for the gun followed, and that the shot from the gun was accidentally fired wounding Mayberry and killing Adamucci. This claim was of course clearly rejected by the jury's finding of murder in the first degree. We have carefully reviewed the extensive testimony and are satisfied that it compellingly supports the State's charge; in any event the defendants do not attack the jury's verdict as against the weight of the evidence and we shall therefore not detail the testimony except insofar as necessary for consideration of the various alleged legal errors set forth in their briefs.
Before the trial began there were various motions, some resulting in pretrial rulings which are claimed as grounds for reversal. They may appropriately be dealt with at this point. All of the defendants unsuccessfully sought a change of venue and Mayberry's brief urges that the pretrial publicity and the refusal to change the venue constituted a denial to the defendant of "due process of law." Although he makes passing mention of the extent of newspaper coverage, he places his main reliance on two surveys which were conducted in November and December 1965. The first consisted of a questionnaire answered by 258 people. The county has a population of approximately 400,000 people. Though most understood from their reading of newspapers that Adamucci had been killed in the course of a robbery, only 50 persons thought that he had been killed by one of the men in custody.
In the second survey, 1055 persons were polled and the results were similar to the first although the question as to whether the men in custody were thought to have killed Adamucci had been deliberately omitted.
The lower court, in denying the motion for change of venue, stated that it had carefully reviewed the newspaper articles and the results of the surveys and was satisfied that there was nothing to indicate that a fair trial could not be had within the county; in its own language: "the court believes that an impartial jury can be obtained from the citizens of this county, and they are not aroused in such a way there could not be a qualified jury to sit as a jury in this case." See State v. Wise, 19 N.J. 59 (1955); State v. Ravenell, 43 N.J. 171, 180-181 (1964), certiorari denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2 d 572 (1965). Nothing in the record would lead us to question the accuracy of this comment or the soundness of the denial of the application for change of venue. The defendants did not exhaust their peremptory challenges and do not make any attack on the voir dire; nor do they make any attack on the constituency of the jury which was sequestered at all times during the trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2 d 600 (1966) is cited by the defendants but has no bearing here; there the trial was conducted in an offensive carnival atmosphere whereas here it was conducted in careful and orderly fashion and with full regard for the rights of each of the defendants.
In State v. Ravenell, supra, a point of error grounded on the trial court's refusal to change the venue because of pretrial publicity was rejected; it was pointed out that under State v. Wise, supra, the test is whether an impartial jury could be obtained from the citizens of the county or whether they had been so aroused as to be disqualified; and the following remarks in the Court's opinion have special pertinency here:
We find nothing in the record before us which would warrant disturbance of the lower court's exercise of its discretion in denying the defendant's motion. No attack is made on the qualification of any of the jurors selected. No complaint is made that any juror was sworn above the defendant's objection and no complaint is made about the latitude afforded on the voir dire. The recommendation of life imprisonment tends to negate any suggestion of a situation so inflamed as to impair the defendant's opportunity for a fair and impartial trial. The results of the so-called public opinion survey which the defendant submitted were entirely impersuasive. Only 121 persons, in a county with a population of over half a million, were interrogated and 59 of them declined to make any comment. In no sense could this be said to constitute proof, within the standards set forth in Wise, that a fair and impartial trial could not be had before a Union County jury. 43 N.J., at p. 181.
Prior to trial the defendants Mayberry and Miller moved for severance under R.R. 3:5-7. That rule provides that whenever it appears that a defendant is prejudiced by a joinder of offenses or defendants, the court may in its discretion grant a severance or provide whatever other relief justice requires. At the time of their motions, the defendants presented nothing in support other than the fact of joinder and that some evidence would be admissible only as to a single defendant. In State v. Manney, 26 N.J. 362, 369 (1958), it was noted that a claim of prejudice under R.R. 3:5-7 "cannot be grounded merely upon that eventuality." Of course, where the State contemplates using a confession of one of the defendants which can be binding only against him, there are special considerations and there must be special precautions as detailed in State v. Young, 46 N.J. 152, 159 (1965). See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2 d 476 (1968).
The denial of the motions was well within the proper exercise of the lower court's discretion and furnishes no basis for reversal. However, the defendants urge that because of the denial and the resulting joint trial, certain evidence was admitted which created prejudice beyond the corrective capacity of the limiting instructions which the trial judge admittedly gave during his charge. They place particular
stress on the testimony of Miss Hart who was the defendant Kestner's girl friend. Before the Prosecutor placed her on the stand he advised the court and counsel as to the questions he intended to address to Miss Hart which would relate to statements by Kestner binding on him alone. He stated that he would take pains to avoid reference to Mayberry and Miller and when Miss Hart was on the stand he cautioned her to confine her remarks to Kestner's statements and their relation to him alone.
In response to the Prosecutor's question as to whether Kestner told her what had happened at the Rickshaw Inn, Miss Hart testified as follows: "He told me that he knew an incident -- of a holdup that was going to take place and that he went there trying to stop it." She stated that Kestner told her he was at the Rickshaw on the night of the shooting and as to what happened to Adamucci. Her testimony on this score was as follows: "He told me that a man approached him for some money and at that time there was a fight, more like a struggle, and Mr. Adamucci was then shot in the chest." The defendant Kestner contends that Miss Hart's testimony was purely hearsay and inadmissible as against him; he says that it was exculpatory and "completely self-serving." But that is not so, for it was patently disserving in the aspect the State relied upon, notably, his reference to a holdup. As such it was admissible as a declaration against interest. See Evidence Rule 63(10); Brooks, Evidence, 14 Rutgers L. Rev. 390, 414-17 (1960).
Apart from the sufficiency of the limiting instructions, it must be noted that Kestner himself testified on the witness stand that he told Miss Hart that he went to the Rickshaw Inn to stop a holdup although he followed that with the statement that actually "there was no holdup." He was of course subject to full cross examination not only by the State but also by his co-defendants. Both Mayberry and Miller testified and acknowledged their respective presences within and outside the Inn. Mayberry admittedly had the gun which he says went off accidentally during his tussle
with Adamucci. In the light of all of the foregoing, we are satisfied that no prejudicial error resulted from the admission of the quoted testimony by Miss Hart. Similarly, we are satisfied that there was no prejudicial error in the admission of testimony by Miss Barclay which we consider merely incidental in the light of the totality of the evidence in the voluminous record of the case.
Miss Barclay testified that in September 1965 she saw Mayberry in Rossville, Georgia. Mayberry had a splint on the middle finger of his left hand and he asked her if she knew a doctor. He told her he had accidentally shot himself, that he was mixed in with the wrong crowd and that "even murder could be involved." He told her he was divorced; she testified that she would not have seen him if she knew he was still married. The trial judge instructed the jury that it was to disregard Miss Barclay's testimony insofar as it may have indicated anything as to any person other than Mayberry. Mayberry contends that the testimony as to his false statement with regard to his marital status was an improper attack on his character; although the Prosecutor might well have stayed away from the subject, the matter had no real significance and could not have prejudiced the substantive rights of any of the defendants or have influenced the verdict returned by the jury.
The defendant Miller complains about the denial of his application for pretrial inspection of the statements made by the State's witnesses. The motion was determined before R.R. 3:5-11 was broadened and we are not here called upon to deal with the meaning and effect of the rule as broadened. At the time of the motion, the rule precluded pretrial discovery of witnesses' statements. State v. Johnson, 28 N.J. 133, 143-44 (1958); State v. Cook, 43 N.J. 560, 565-566 (1965). Miller was given pretrial discovery of "all inculpatory statements" made by him to "persons investigating the case and notes and memoranda of such statements made by such investigators." In addition he had the right at the trial itself to call for the production of
prior statements of witnesses against him for use in cross examination. State v. Hunt, 25 N.J. 514 (1958). In his motion, Miller sought relaxation of the restrictive provisions in R.R. 3:5-11 but he made no showing which would call for such action. His citation of State v. Farmer, 45 N.J. 520 (1965) is not apt for the circumstances there were exceptional and not at all comparable to those presented here. At the trial witnesses' statements in the Prosecutor's possession were made available within the fair contemplation of Hunt, State's witnesses were cross examined fully and we find no prejudice to Miller, Kestner or Mayberry resulting from any of the lower court's rulings relating to pretrial discovery or from any of its rulings during the trial relating to the production of witnesses' statements for purposes of cross examination. Cf. State v. Trantino, 44 N.J. 358, 363-364 (1965), certiorari denied, 382 U.S. 993, 86 S. Ct. 573, 15 L. Ed. 2 d 479 (1966).
Miller also complains that he was subjected to a pretrial psychiatric examination by a physician acting on the State's behalf and out of the presence of counsel. In preparation for background testimony under State v. Mount, 30 N.J. 195 (1959), Miller's counsel had applied for and obtained the appointment of a psychiatrist to examine Miller. In response the State applied for and obtained an order permitting examination of the defendants by a State psychiatrist. Its application was wholly understandable though under the circumstances there would appear to have been no need and perhaps no justification for the exclusion of counsel. The results were never used and Miller expressly acknowledges that "the record reveals no actual prejudice resulting from the psychiatric interview." That being so no constructive purpose would be served by pursuing ...