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State v. Gardner

Decided: May 6, 1969.


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


[54 NJ Page 39] These are direct appeals by defendants Jerome Gardner and Dwight Mason who, along with Franklin D. Gilchrist, were tried jointly on indictments for murder. On November 7, 1966, the jury returned verdicts finding defendants Gardner and Mason guilty of murder in the second degree, and each was sentenced to a term of 25-30 years in

the New Jersey State Prison. Gilchrist received sentence of 20-25 years on his non vult plea entered during trial.

We have examined the numerous issues raised by Gardner and Mason on this appeal and find them without merit. We find it necessary to discuss only three of the contentions in which defendants allege reversible error: (1) the failure to follow the procedural guidelines of State v. Young, 46 N.J. 152 (1965), where an oral out-of-court statement by one codefendant is to be used in a joint trial; (2) the use in a joint trial of evidence admissible against one defendant (Mason) but inadmissible against the others; and (3) the denial of a motion for mistrial following the non vult plea of one of the codefendants (Gilchrist) who thereafter testified for the State.

We refer to the testimony on behalf of the State. On the evening of October 31, 1965, Franklin Gilchrist (stepson of the deceased), his wife Caroline, and his mother Dorothy Hill (wife of the deceased) met Thurlow Hill (the deceased) in a local tavern. After spending some time bar-hopping, Gilchrist, Caroline and Mrs. Hill "ditched" Hill, and returned to Gilchrist's apartment. Hill arrived at the apartment somewhat later, but was denied entrance because of an argument between himself and Mrs. Hill.

Subsequently, Gilchrist learned that his stepfather was threatening to call the police about a series of robberies in which Gilchrist, Gardner and Mason allegedly had been involved. When Hill again said he was going to the police, Gilchrist went to Mason's house and informed him of the threats which Hill had made. Gilchrist told Mason to bring his "piece" (gun), and the two returned to the apartment. In Mason's presence, Hill again threatened to inform the police.

Gilchrist, Mason and Hill left the apartment in Mrs. Hill's car and drove to Gardner's apartment, where Gardner was told of Hill's intention to go to the police. Gardner got in the car with the other men, and after driving for some time, during which time the defendants tried to dissuade Hill

from going to the police, Gardner finally said, "I guess we have to take him out." Gilchrist then heard two clicks, and turned to see Gardner holding what appeared to be a .32 revolver which Gilchrist and Mason had purchased in Virginia. Gardner then asked Mason for his "piece," and immediately thereafter three shots were heard by Gilchrist. Gilchrist then drove to Keasby, N.J., where the trio disposed of the body.

Upon returning to Newark, Gilchrist dropped Gardner off at his apartment and returned to his own apartment with Mason. At the apartment Mrs. Hill observed blood on Mason's trousers. The next morning Gardner and Gilchrist attempted to remove blood stains from the car, and when their efforts were only partially successful they abandoned the car in New Brunswick. Gilchrist, Mason and Mrs. Hill retrieved the car the next day.

Four days later, the body of Thurlow Hill was discovered in Keasby. Gilchrist was picked up on November 8, 1965, and questioned about the death of his stepfather. On the basis of information supplied by him, Mason and Gardner were arrested, and search warrants were obtained authorizing the police to search the apartments of Gardner and Mason. The ensuing searches uncovered ammunition, a .38 caliber gun, and some money from Mason's home, and ammunition, .32 and .38 caliber guns, and some money from Gardner's home.

Because of the extent of distortion in the bullets which killed Hill, a ballistics comparison was not possible. The bullets were identified as .38 caliber slugs, however, and the State did succeed in demonstrating that the .32 caliber gun had recently misfired.

Much of the testimony was supplied by Franklin D. Gilchrist. The events leading up to his testimony began shortly after commencement of the trial when the State sought to introduce oral admissions made to the police by each of the defendants. The trial was ...

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