For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
Defendants were convicted of three charges of murder in the first degree, and the jury having recommended life imprisonment, sentence was imposed accordingly. Defendants appealed directly to us pursuant to the then rule, R.R. 1:2-1(c).
The issue of guilt was strongly contested. The issue was, however, clearly one for the jury and defendants do
not contend otherwise. Our recital of the facts will therefore be limited to that suggested by the legal questions before us.
At about 2:30 A.M. on June 17, 1966 two men entered the Lafayette Bar and Grill in the City of Paterson. One man held a .32-caliber revolver, the other a 12-gauge shotgun. Their motive was obscure, no doubt because events moved so rapidly. We gather from the testimony of the sole surviving victim that the bartender saw the armed men as they entered and threw a bottle at them, precipitating the shooting before a word was said. The bartender was killed instantly, as was also one of the patrons. Another patron, Mrs. Tanis, who suffered multiple wounds, died four weeks later. The lone survivor, also a patron, was shot in the head. His ability to tell what happened was obviously impaired; he could contribute little more than that the armed men were Negroes. The State failed in its effort to prove a dying declaration by Mrs. Tanis. We know only that she and also the surviving patron were unable to identify either defendant, but the testimony does not suggest that either patron was able to say affirmatively that the defendants were not the offenders.
Mrs. Valentine, who lived above the tavern, was awakened by the shots. She went to the window and saw two men run from the sidewalk in front of the tavern to a white automobile parked across the street, about a car-width from the curb. Mrs. Valentine could not see their faces but observed that they were Negroes, that the license plate had a dark background with gold or yellow lettering, and that the rear lights were triangular in shape, tapering toward the center. She hurried to the tavern, where she met one Alfred Bello, who urged her not to enter. She nonetheless did, saw the gory scene, returned to her apartment, and telephoned the police.
Alfred Bello was a key witness for the State. He and Arthur Dexter Bradley were in the area on a criminal mission of their own. Bradley was attempting to break into a building about two blocks away while Bello was at the intervening
intersection looking out for the police. Bello ran out of cigarettes and was walking to the tavern to buy some when he heard the shots. As he neared the tavern, two men, Negroes, came toward him, one with a shotgun and the other with a pistol. They were talking loudly and laughing. When Bello realized they were not detectives, he took off and ducked into an alleyway. Presently a white car passed by. Bello recognized it as a 1966 Dodge and noted it had New York license plates. Bello entered the tavern, and seeing the dead and the dying, he went to the cash register to obtain a dime to call the police. The sight of money was too much for Bello who, explaining he was a thief, admitted he scooped some bills from the register. He left the tavern and handed the money to Bradley who, having heard the shots, had started toward the scene,. Bello returned to the tavern. He called, or had already called, the police, and when they arrived, he flagged them down.
At 2:34 A.M. patrol cars were alerted for a white car with two Negro occupants. At 2:40 A.M. Sergeant Capter and his colleague stopped a white car with three Negro occupants. Defendant Artis was driving and defendant Carter was in the rear seat. Carter, a professional pugilist, was well known to Sergeant Capter. After checking the registration, the officers permited the car to proceed. The officers then went to the tavern, and learning that Mrs. Valentine and Bello had given the additional information that the car had out-of-state plates and that the rear lights looked like "butterfiies," they took off to search for the car they had stopped, for that car had New York plates and its rear lights answered the description given by Mrs. Valentine and Bello.
The car was located. Artis and Carter were then the only occupants. They were ordered to drive to the tavern in an escort of police cars. When they arrived, Mrs. Valentine identified the car as the one she had seen. By then a large crowd had gathered. The car was taken by the police to headquarters where it was impounded. At 3:45 A.M. a search of the car yielded a live .32-caliber S. & W. long
bullet, found on the floor under the right front seat, and a live 12-gauge shotgun shell, found in the trunk under boxing gear. A motion to suppress those items was denied, but at the trial the shotgun shell was excluded upon other grounds to which we will refer later. One of the issues on this appeal involves the denial of the motion to suppress, and defendant Carter, in his pro se brief, contends also that he was prejudiced because the State referred in its opening to the shotgun shell which was later barred from introduction.
Both Carter and Artis were questioned early that morning. Both denied involvement. A detective was permitted to testify to each defendant's account of where he had been that night. The admission of that testimony is an issue on this appeal. Both defendants were released that morning. On June 29, twelve days later, both Artis and Carter testified voluntarily before the Grand Jury after signing appropriate waivers.
Defendants were not arrested again until October, when Bello and Bradley, both involved in other criminal charges, provided evidence directly incriminating the defendants. Bello said it was Carter who carried the shotgun and Artis who held the pistol; that he recognized both at once when he was confronted by them outside the tavern, and that he had withheld this information because of his own criminal activities that night and his fear of retaliation. Bradley, who also saw both men, testified that Carter was one of them. He was unable to say whether Artis was the other.
Both Carter and Artis testified. They produced a number of witnesses in an effort to place themselves at a bar at the time of the murders. It, however, was virtually impossible to establish an alibi, for at all times defendants were concededly within minutes of the murder scene and the moment of the killings could not be established precisely. It is fair to say that the case had to turn upon the State's proof and the defendants' denial of guilt, unaided by the testimony which sought to establish an incompatible presence elsewhere.
As related above, the State was permitted to prove the accounts Carter and Artis gave a detective shortly after their arrests of their movements on the night of the homicides. The evidence did not consist of statements signed by defendants. Nor was it even a verbatim record of what was asked and said. Rather it consisted of notes made by a detective who could not write shorthand and who had difficulty staying abreast of what the defendants said, and who did not exhibit the notes to defendants for their confirmation. Thus, in its form, the evidence was poorly prepared. See State in the Interest of Carlo, 48 N.J. 224, 242 (1966); State v. Cook, 47 N.J. 402, 417-418 (1966); State v. Smith, 32 N.J. 501, 549-555 (1960), certiorari denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2 d 367 (1961). We add that the State failed to seek a pretrial determination of the compatibility of those statements with a joint trial as required by State v. Young, 46 N.J. 152 (1965), which omission, although not fatal, see State v. Gardner, 54 N.J. 37, 42-45 (1969), foreclosed an opportunity for more deliberate consideration of the problem the statements generated at the trial.
At any rate, the affirmative probative value of those oral statements was virtually nil. Their only contribution was the admission by each defendant that he was in the company of the other during a period within which the homicides were probably committed. It was on that basis that the trial court accepted the statements. But that contribution was hardly needed in light of the testimony of the officers which placed defendants in Carter's car at 2:40 A.M., probably within ten minutes after the shootings.
Neither statement was at all inculpatory of either man. Both stoutly denied any involvement. Defendants nonetheless complain that the accounts they gave of their peregrinations earlier that night had certain conflicts which a jury might find to ...