For affirmance and withholding entry of judgment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None.
The defendant Robert T. Conklin was tried on charges, inter alia, of having murdered Oliver Lindsay Clarkson and his wife Ethyl Williamson Clarkson. The jury found him guilty of murder in the first degree without recommendation of life imprisonment and he was sentenced to death on each of the two murder charges. He appealed to this Court as of right and raises seven points of alleged error, all addressed substantially to the death sentences rather than the finding of guilt.
Sometime before November 21, 1968 the defendant Conklin who was 32 years of age, and his companions John Matthew Sheridan aged 20 and David Willetts aged 17, made plans to rob the Clarksons and burglarize their home in Tuckahoe. Conklin had done some carpentry work and had watched a baseball game with Mr. Clarkson on a television set at the Clarkson home. He knew that the Clarksons were in their sixties and believed that they kept substantial sums of money at home. He had suggested the Clarkson place to his two companions as a likely one for the criminal venture and during the evening of November 21 the three of them, fully armed, set out from Ocean City for Tuckahoe in a car driven by Sheridan. They arrived at the Clarkson home and Conklin was the first to enter. He did not wear a stocking mask although his companions did. He carried a .38 caliber revolver which belonged to Willetts but which Willetts had turned over to him before they entered the house. Mr. Clarkson
was beaten, tied up and fatally shot in the neck. Mrs. Clarkson was beaten and fatally shot in the top of the head. The house was ransacked and set afire and the three then left with their loot for Ocean City.
Although the defendant had given the State a voluntary statement in which he had denied participation in the killings, the State's evidence on its own case overwhelmingly established the contrary. When the defendant took the witness stand in his own defense he abandoned his earlier denial and stated that he had fired his gun in order "to scare Mrs. Clarkson" and had hit Mr. Clarkson by accident. He testified that he did not remember how Mrs. Clarkson was killed. But as part of the State's case there was ample direct testimony on that subject by both Sheridan and Willetts who had, prior to the trial, entered pleas of non vult on the murder charges against them.
Sheridan testified that while he was downstairs in the house Mrs. Clarkson, unclothed, came down the steps from the upper floor, followed by the defendant with the .38 caliber revolver in his hand; that the defendant sent him upstairs to search for valuables and while there he heard several shots; that he came down and saw that both of the Clarksons had been shot; that at that point the defendant told him that "Mr. Clarkson was hit by accident"; and that later the defendant told him that after Mr. Clarkson had been shot, Mrs. Clarkson had said, "I know you" and that he then "had to shoot her." Willetts testified that he went into the kitchen and heard shots from the living room; that he returned to the living room where the defendant told him that he had "killed the old man"; and that at that point the defendant put the .38 caliber revolver on the top of Mrs. Clarkson's head and said "Should I? I have got to" and he pulled the trigger.
In his own testimony the defendant said that when he entered the house Mr. Clarkson asked him what he was doing there. The defendant said he then hit Mr. Clarkson with his hand and when he heard Mrs. Clarkson shouting upstairs he
went upstairs and hit her with the pistol "with all I could throw behind it." He stated that he later shot Mr. Clarkson accidentally while intending to frighten Mrs. Clarkson and that he had no recollection as to how Mrs. Clarkson had been shot. He denied that Mrs. Clarkson had said she knew him but fully acknowledged his participation in the robbery and that he had set the couch afire before he left the Clarkson home. He denied that shortly after the killings he had threatened his accomplices and others, as several witnesses for the State had testified, but acknowledged that he had threatened Willetts while in jail.
Although the trial court could have submitted the case to the jury under both the felony murder (N.J.S.A. 2A:113-1) and the premeditated murder (N.J.S.A. 2A:113-2) statutes it confined itself, with the State's consent, to felony murder. See State v. Mayberry, 52 N.J. 413, 432 (1968), cert. den., 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2 d 593 (1969). Its charge properly instructed the jury that if the evidence established beyond reasonable doubt that the killings occurred during the course of a robbery in which the defendant participated then its verdict must be guilty of murder in the first degree, with or without recommendation of life imprisonment as the jury in its discretion determined. N.J.S.A. 2A:113-4; see State v. Mathis, 47 N.J. 455, 466-68 (1966). The jury found the defendant guilty of murder in the first degree and under the evidence and the charge it could not properly have found otherwise. The jury also found, after deliberation, that there should not be any recommendation of life imprisonment and, accordingly, the mandated death penalty was imposed. In his effort to have the death penalty set aside and replaced by life imprisonment the defendant advances points of alleged error which will be dealt with in the order set forth in the brief submitted on his behalf by the Public Defender.
The defendant's first point attacks the admission of three photographs as "more prejudicial than probative." The photographs were in ...