For affirmance and modification -- 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.
[57 NJ Page 327] On an indictment for murder, defendant was convicted of manslaughter and sentenced to a term of seven to ten years. The Appellate Division affirmed. Defendant
then appealed to us, raising two questions. One is whether the Appellate Division used an unconstitutional standard of review in dealing with a claim of error. The other question is whether the sentence was excessive.
In the early morning of May 30, 1968 defendant was involved in a minor collision with a vehicle operated by one Abrahms. While defendant and Abrahms were debating whether there was damage to defendant's car, the deceased, a friend of Abrahms, came to the scene and entered the discussion in support of Abrahms. It seems clear that the deceased had had too much to drink. Defendant, too, had been drinking, but he did not contend he was under the influence of liquor. The State's proof was that when the deceased placed his hand in a friendly way upon defendant's shoulder, defendant stepped back, drew a gun and fired two shots into decedent; that friends of the deceased jumped upon defendant to subdue him; that some additional shots were fired aimlessly in the struggle. On the other hand, defendant testified that as he tried to leave to telephone the police with respect to the collision, the deceased suddenly punched him in the chest; that defendant, backing away, drew the weapon to frighten the deceased; that someone grabbed defendant from behind, causing the gun to be fired; that as the men grappled, the gun was discharged several more times. In short, defendant denied that he pulled the trigger and insisted the firing was caused by the physical activity of others.
When the deceased collapsed, his friends turned to attend him. Thereupon, defendant and his two companions drove off. Defendant said he drove aimlessly; that he threw the gun away during the ride; that he abandoned the car at a place he could not recall; that later that morning his wife told him the police were outside their home; that he then telephoned his lawyer.
In his summation the prosecutor said:
"Then what does he do? He drives along and can't tell us where. The gun goes out the car window. An act of innocence?
The car is left somewhere and he doesn't remember where. An act of innocence?
He goes home and takes his clothes off and puts the shirt down in the chest, a torn shirt. Then he goes to bed. He says he had trouble sleeping. He gets up the next morning and lo and behold what does he do? He calls his lawyer. These are the various acts of innocence? " (Emphasis is ours.)
There was no objection to this argument, but on appeal to the Appellate Division, defendant contended for the first time that the sentences we have italicized constituted an infringement of defendant's Sixth Amendment right to counsel. The Appellate Division answered:
"We agree with defendant that the prosecutor's allusion to defendant's calling his lawyer the morning following the fatal affray was improper. However, it was not objected to at trial, and in the context of the summation in its entirety and the facts of the case, we fail to find plain error."
Defendant now contends the Appellate Division was bound to apply the standard for reversal with respect to "constitutional" errors established in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Instead, defendant says, the Appellate Division must have employed the definition of plain error in State v. Corby, 28 N.J. 106 (1958), which, defendant says, is less favorable. More specifically, Chapman, as we will later develop more fully, says that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt," 386 U.S. at 24, 87 S. Ct. at 828, 17 L. Ed. 2d at 710-711, whereas Corby defined "plain error" as one possessing "a clear capacity to bring about an unjust result." 28 N.J. at 108. These standards, defendant says, would lead to opposite dispositions of his appeal.
Defendant's argument thus starts with the hypotheses that the prosecutor's comment must have been understood by the jury to zero in upon defendant's telephone call to his attorney and to mean that seeking legal advice itself evidenced a consciousness of guilt, and that an argument in that vein violates the constitutional right to counsel. From there defendant goes to the proposition that Chapman requires its test to be applied notwithstanding defendant's failure to object at the trial as required by our State practice, and finally that the Corby formula and the Chapman formula are decisively different.
As to the first premise, it is far from clear that the prosecutor intended the thrust defendant now finds. The jury could have understood that in attacking defendant's claim of total innocence the prosecutor was arguing that defendant's behavior revealed a purpose to conceal his identity and thus to evidence a consciousness of guilt. So the prosecutor referred to defendant's leaving the scene, throwing the gun away, and abandoning the car at some unknown place. The reference to the telephone call to the attorney would have been consistent with that theme if the prosecutor had also mentioned the intervening fact, known to the jury, that defendant did not call his attorney until his wife had told him the police were outside their home, thus ending his hope that he had escaped detection.
Surely the prosecutor did not baldly assert that a man involved in a shooting would not call his attorney unless he felt he was guilty. That proposition would be rather absurd and unpersuasive. Nonetheless defendant insists the prosecutor's argument should be so understood, and we agree that, literally, it could be.
But to invoke Chapman, defendant must elevate the "error" to constitutional level. To that end, defendant turns to the Sixth Amendment right to counsel and contends that it was infringed. We are aware of the tendency of the day to find constitutional moment in relatively routine ...