For affirmance but withholding entry of judgment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
[57 NJ Page 59] Wilbert Sinclair was found guilty by a jury of first degree murder on two indictments, one for the murder of Esther Friedman and the other for the murder of Shep Binyard. The jury did not recommend life imprisonment and he was sentenced to death on both convictions. He appeals to this Court under R.R. 1:2-1(c) (now R. 2:2-1(a)(3)). Previously Sinclair had been jointly tried with Jesse Edward Wilson who had also been indicted for the same crimes, and both men were convicted and sentenced to death. This Court reversed those convictions because of the trial court's failure to instruct the jury on the possibility of returning a verdict of second degree murder. 49 N.J. 525 (1967). At our suggestion (Id. at 550) the defendants were retried separately, and it is from the conviction in Sinclair's separate trial that he now appeals.
At the trial evidence regarding the shootings was virtually the same as that presented in State v. Wilson, 57 N.J. 39 (1970) decided today. The main prosecution witness was again Abraham Friedman, the husband of one of the two murder victims, Esther Friedman. He testified that at about 8:30 P.M. on October 24, 1964, he and Esther were working in his liquor store in Newark. One customer, Shep Binyard, was in the store when two men, later identified by Friedman as Wilson and Sinclair, entered the store. Wilson attempted to sit down on a chair but fell off. Binyard offered to help Wilson, but Wilson refused the aid and picked himself up. Friedman believed Wilson was intoxicated and refused to sell liquor to Sinclair. Sinclair then drew a pistol and announced a "stick up." Mrs. Friedman told the men to "take whatever you want but just leave us alone."
Sinclair then directed Wilson to go behind the counter to the cash register. At that time Binyard approached Sinclair and said, "Why don't you leave these nice people alone." Thereupon Sinclair shot him. Mrs. Friedman screamed and began to run outside, but before she could escape Sinclair shot her and ran out of the store. Both shootings were fatal. Friedman, seeing Wilson at the cash register alone, picked up a bottle of whiskey and struck Wilson over the head with it. Friedman then retreated to the rear of the store to reach the burglar alarm in the refrigerator. Wilson attempted to follow him, but was threatened by Friedman with the broken neck of the bottle and ran out of the store. Friedman sounded the alarm and went to the aid of his wife who was lying on the sidewalk outside the store.
Friedman further testified that about an hour later that evening, he was taken by the police to Newark City Hospital where he identified Wilson who was sitting with other men in the emergency room. Shortly thereafter at the police station, Friedman identified photographs of both Wilson and Sinclair from a number of photographs shown to him. As
he was leaving the interrogation room, he spotted Sinclair in an adjoining room and identified him to the police as "the man who killed my wife." Finally, on the stand Friedman unequivocally stated that the man he identified that night was the defendant Sinclair.
Over objection, the State also introduced corroborating evidence of Wilson's involvement in the crimes. Officers Patterson and Lebo testified that at 8:45 P.M. in response to a general alarm they proceeded to the vicinity of the crimes where they saw a man staggering on the street and bleeding from the head. They drove the man, who was later identified as Wilson, to the Newark City Hospital. At the hospital slivers of glass were removed from Wilson's head and clothing. Expert testimony later revealed that these slivers were part of the liquor bottle Friedman used to strike the intruder at the cash register.
The State also introduced evidence regarding Sinclair's apprehension and arrest. After Friedman had identified Sinclair's photograph, the police went to Sinclair's apartment but found no one there. Upon leaving the apartment, the police spotted Sinclair walking on 12th Avenue. They shouted for him to halt, but he quickened his pace and was pursued into a parking lot. There he threw an object under a parked car. The object was identified by the police as a .38 caliber revolver. Expert evidence was later introduced showing that the bullet fatal to Mrs. Friedman was fired from the gun, and that the bullet fatal to Binyard was probably fired from the gun. Sinclair was searched at the scene of his arrest and the police found several .38 caliber bullets.
Sinclair was the principal defense witness. On direct examination he admitted that he had a record of prior convictions for atrocious assault and battery and carnal abuse. He also admitted that he knew Wilson and had been with him on the night of the shootings. According to Sinclair, he and Wilson were in a bar that night and Wilson left the bar with a tall dark-skinned man. He, Sinclair, remained
at the bar where he talked with a Mary Wells. About fifteen minutes later, Wilson returned to the side door of the bar, bleeding from the head. He told Sinclair that he had been in a fight with three men and asked Sinclair to keep the gun and ammunition for him until the next morning. Sinclair admitted that he threw the gun away just before his arrest, but said he did so because he knew it was illegal to possess a dangerous weapon. However, on cross examination he was unable to explain why he did not similarly dispose of an illegal knife that the police found in his possession at the time of his arrest.
Sinclair's sister testified that she had unsuccessfully attempted to locate Mary Wells, her brother's alleged companion at the time of the shootings. On rebuttal a police officer testified that after a thorough search it was his opinion that Mary Wells did not exist.
The defense also produced testimony by a police officer and a newspaper reporter in an effort to show that Friedman was emotionally upset, and might have been mistaken in his identification of Sinclair shortly after the killings.
On this appeal, Sinclair urges several trial errors and violations of his constitutional rights. We will ...