Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Gaulkin, S.j.a.d.
[104 NJSuper Page 58] Defendants were convicted and sentenced for the unlawful possession of weapons, N.J.S. 2 A:151-41, and they appeal. They contend that (1) the court's charge was improper in that it went beyond permissible
comment on the evidence; (2) the arrest and search of defendants was without probable cause, was conducted with excessive force and was otherwise improper, and if guns were found (which defendants deny) they were unlawfully seized; (3) the trial judge was biased against defendants, and his bias pervaded the atmosphere of the trial and affected the jury to defendants' prejudice, and (4) the sentences were excessive.
Basically, the State's case was that the so-called "Newark riots" had commenced on July 13, 1967; in the early morning of July 14 police headquarters broadcast an alarm to look for a blue panel truck from which shots were being fired at police; at about 2:30 A.M. a police car occupied by five policemen came upon defendant Jones' Volkswagen "camper," described as "green"; the camper had come to a stop, or had been compelled to stop by the police car swinging in front of it, and four of the officers approached the car; the three defendants were in the car, Wynn driving, McCray in the passenger seat in front, and Jones in back. As one officer asked Wynn for his driver's license and the registration, Officer Gevers shone his flashlight into the camper from the passenger side and saw a revolver on a shelf under the dashboard; the three defendants were then ordered out of the camper; while Jones was getting out, a revolver fell from underneath his tunic; the three were then placed under arrest; a box of bullets was found in a paper bag on the front seat, and six bullets in Wynn's pants pocket.
Defendants denied that there were guns in the car or on their persons, and claimed that the charges were falsely made by the police to cover up their own misbehavior. Defendants claimed that they had done nothing wrong and were on their way home; they were stopped without cause, dragged from the camper and beaten, either because the police wrongly thought theirs was the "blue panel truck" whose occupants had been firing at police, or because the police (or some of them) knew Jones as a militant, or because the police were
tired, nervous, over-worked and resentful of Negroes because of the rioting. Defendants said they were so severely beaten that at least two of them -- Jones and McCray -- had to be taken to the hospital by the police for medical attention. Defendants argued that consequently, when they realized who Jones was and that defendants had done nothing to deserve the beatings they received, the police, to "cover up," made the false charge against them of unlawful possession of firearms. Counsel for defendants charged in their summations that the police "fabricated" the story, "put those guns in that car to cover up this brutal beating," "to justify their action."
In short, the issue was almost entirely one of credibility -- whether the police or defendants were to be believed. Most of the summations of counsel and of the prosecutor were devoted to this one question.
Defendants do not contend that the verdict was against the weight of the evidence. However, they do contend that since credibility was the paramount issue, the judge's charge was devastatingly improper and fatally unfair. They claim not only that it went far beyond comment on the evidence but that it became a summation on behalf of the State of a type which even a prosecutor would not be permitted to make. They claim the judge in florid language extolled and defended the police while, with sarcasm and scorn, he belittled defendants and their contentions. Beyond that, and most important, they claim that the charge was an exhortation to the jury to support the police by convicting defendants.
To be fair to the State as well as to defendants, it is necessary to reproduce without a break what we deem to be the most critical portion of the charge. The judge said (paragraph numbering ours):
"1. You saw and heard each of these officers testify. The defendants would have you believe that they are prevaricators and that they committed the most flagrant kind of perjury when they stated under oath the manner in which they found and removed the two
loaded revolvers and the ammunition from the Volkswagen which the defendants occupied at two-thirty A.M. on July 14, 1967.
2. Did they appear to you to be evilly disposed and wicked men who would resort to such calumny? Is it conceivable that these five men in blue would confer and agree together to commit such an unconscionable, outrageous act? In the final analysis, ladies and gentlemen, what interest did these officers have at the time of the arrest other than to restore law and order under extremely hazardous conditions?
3. By the same standards, consider, if you will, the demeanor of the defendants and their interest in the outcome of this trial. Did they testify with candor? Were their answers responsive and forth-right or were they evasive? Do you believe that Jones was riding on the front seat in order to receive instructions in the operation of his motor vehicle between the hours of eleven-thirty P.M. and two-thirty A.M. or was this testimony introduced merely in an ...