Goldmann, Leonard and Mountain. The opinion of the court was delivered by Mountain, J.A.D.
Defendants were jointly indicted and tried for so-called felony murder. They appeal from convictions following jury verdicts of guilty of first degree murder with recommendation of life imprisonment. The victim's death allegedly resulted from an assault by defendant, Amico, committed while attempting to rob. Hegel was found guilty as an aiding and abetting participant.
A recital of the facts is necessary to an understanding of the legal issues involved.
On Veterans Day, November 11, 1968, sometime in the forenoon, the two defendants chanced to meet in a tavern in Paterson. Amico said he was going to drive to Newark on a personal errand and Hegel asked if he might accompany him in order to meet his girl friend, Alice LePree. Upon Amico agreeing, Hegel telephoned Alice, who lived in South Orange. He had apparently called her earlier but she had then been still asleep. This time he spoke to her and it was agreed that they would meet a little later in Newark.
According to Amico's testimony -- Hegel did not take the stand -- they then drove to a tavern in South Orange and while there Hegel telephoned Alice for the third time. They agreed to meet in Newark between 1:30 and 2:00 P.M. The call appears to have been made about 12:30. The proprietor, as well as a police officer who knew Hegel and happened to be in the bar, both corroborated his presence in the tavern and remembered that he had phoned. This telephone call is of especial importance in view of the argument put forward by the State that Hegel lured Alice away from her home at a particular time so that she would be absent when defendants arrived with intent to rob.
Alice first testified that upon the occasion of this call, Hegel said he was in Paterson. She at least partially recanted on cross-examination and admitted that he might not have said this, and that she might have assumed he was still at the bar in Paterson due to the noise of clinking glasses in the background.
According to Amico, he and Hegel then left the South Orange tavern and drove to Newark so that he might carry out his errand at the office of the Veterans Administration. Arriving at the office and finding it closed because of the holiday, they then quickly returned to South Orange in an effort to head off Alice before she left for Newark. Upon coming into the neighborhood where Alice lived, they stopped and consulted. Alice lived with her grandmother, Josephine LePree, her grandfather and two aunts. She had been dating Hegel for about seven months and to her grandmother, at least, he was not an acceptable swain. She often referred to him as "that pest." She apparently harbored similar feelings about any young man who was attentive to her granddaughter. Pointing this out to Amico, Hegel suggested that he, Amico, approach the house to see whether Alice might still be there, since the grandmother did not know Amico, while Hegel drove to the bus stop where Alice might be expected to take a bus for Newark. Agreeing to this proposal, Amico alighted and started walking toward the house.
At this point both defendants were seen by a witness, Margaret Spacek, who lived near Alice's home. She saw the car stop, saw Amico get out and cross the street toward her house and saw the car drive away. She was standing on the porch and at first thought Amico was someone she knew. Before realizing her error she said "hello" and then quickly perceived her mistake. She noted that Amico continued to walk in a normal, unhurried manner in the direction of Alice's residence. He moved out of sight.
No one except Amico testified as to what immediately followed. He said that he proceeded to the LaPree home and stood about hoping Alice would see him and come out. They were well known to one another and Alice had been told that Hegel was in his company. As a matter of fact, Alice had already left. At this point Hegel returned, still driving Amico's car. He indicated by a manual sign that he had failed to find Alice at the bus depot. Amico, according to his own testimony, in order to move things along, walked
up the LePree driveway to the back of the house and knocked at the door. A person, who proved to be Josephine LePree, asked who was there. Anxious to learn whether Alice had yet left, and believing he might be turned away if he identified himself, Amico said he was "from the Public Service." Mrs. LePree opened the door and upon his inquiring whether Alice was at home and recognizing that he was not the person he had said he was, called him a "bum," grasped a broom or some similar object and appeared about to strike him. He beat a hasty retreat, walked back down the driveway, met Hegel and recounted the episode that had just occurred. They both then ran back to the parked car and left. Returning to Newark they met Alice, who was annoyed at having been kept waiting about 30 minutes. All three were together the rest of the afternoon and early evening. So much for the testimony of Amico.
It so happened that as he was leaving the LePree home, walking back down the driveway, Amico was seen by Michelle Gelinas, age 13, who lived in the house next door. She testified that he was walking in a calm and unhurried fashion, occasionally looking behind him. She saw him reach the sidewalk and turn down the street before he moved out of her line of vision.
About two minutes after Amico had disappeared, Josephine LePree was heard at the Gelinas' back door. Mrs. Claire Gelinas and her daughters, France and Michelle, were at home. Mrs. LePree entered the kitchen and proceeded into the living room. She was distraught, upset and frightened. There was a bloody mark on her check. She announced that she was dying, that a robber was in her house and that she needed help. Her appearance alarmed Mrs. Gelinas who asked her to sit down, directed her daughter to prepare a cup of tea and at once telephoned the police.
The conversation between the officer who answered the telephone at the police station and Mrs. Gelinas and Mrs. LePree, who alternately spoke at their end of the line, was recorded on tape by a machine at headquarters. The recording
was played back to us on the oral argument of this case and a written transcription forms part of the record. While the conversation was in progress, Mrs. LePree fainted. She never regained consciousness and died very shortly thereafter. Two points stand out in this conversation: Mrs. LePree knew she was dying and she herself never mentioned any robbery or any robber. Mrs. Gelinas, however, did. She repeated that a robber, who had slapped Mrs. LePree and pushed her to the ground, was in the house. Furthermore, at the trial, each of the three members of the Gelinas family testified that Mrs. LePree had said (obviously, not during the recording) she had been robbed or that a robber had entered her house.
Josephine LePree, at the time of her death, was 77 years old and grossly overweight. She had had two previous heart attacks -- myocardial occlusions. The autopsy examination disclosed her heart to have been enlarged ...