On appeal from the Monmouth County Court.
For affirmance and modification -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall, Schettino and Haneman. For affirmance and remandment -- Justice Francis. The opinion of the Court was delivered by Jacobs, J. Proctor, J. (concurring). Justice Haneman joins in this concurrence. Francis, J. (dissenting). Justices Proctor and Haneman concurring in result.
The defendant was convicted of murder in the first degree and was sentenced to death. He appealed to this Court as of right. R. 2:2-1(a)(3).
Mrs. Carmella Rapolla owned and operated a grocery store on Main Street in Matawan. She lived, with her twelve-year-old
daughter Marie and her seven-year-old son Joseph, in the rear and above the store. Her other son Daniel lived away from home at college. On the afternoon of January 10, 1968 Marie and Joseph returned home from school. They saw their mother and went into the living quarters. Marie went into the bathroom above the store where she began changing her clothes and washing up. Joseph was watching television when he heard a noise that sounded to him like three big firecrackers. He went into the store where he found his mother lying on the floor with blood coming from her mouth. She had been shot five times. Joseph ran to his sister Marie who, in turn, ran downstairs, saw her mother, and ran outside for help. On her way out she saw a man, whom she knew by sight but not by name, at the store's cash register. She later identified that man as the defendant. As she was running out of the store she passed another man. She testified that she did not look at that man and could not identify him. However, Herman Gatson testified that during the afternoon of January 10, he went to Rapolla's store for cigarettes, saw the defendant "messing around with the cash register," was told by the defendant to "get out the store," and as he left the store he was followed out by a little girl who was running and screaming and almost knocked him over.
The State presented many witnesses, in addition to Marie Rapolla and Herman Gatson, who placed the defendant in the Rapolla store shortly before and at the approximate time of the shooting of Mrs. Rapolla. In addition, there was substantial testimony with respect to the gun from which the five shots which killed Mrs. Rapolla were fired. The gun was a semi-automatic .22 caliber pistol which was received in evidence as part of the State's case. It was owned by a man known as Robert Thomas. He wanted to sell it and the defendant said to him "I think I have a sale for you." Thomas testified that he gave the gun to the defendant a few days before Mrs. Rapolla was shot and that two days after her shooting he received the gun back from Fred Reid. Reid
testified that he received the gun from the defendant during the day following the shooting of Mrs. Rapolla and that he returned the gun to Thomas during that evening. Wallace Armour testified that at about 1:30 P.M. of the day of the shooting he met the defendant who asked him whether he wanted to buy a gun.
The defendant testified on his own behalf and denied all knowledge of the gun. He admitted talking with Armour but denied that he had asked him whether he wanted to buy a gun. He acknowledged that Thomas and Reid were friends of his but disputed their testimony with respect to the gun. He admitted that he was in the Rapolla store on January 10 but placed the time earlier than did the other witnesses. He testified that he went into the Rapolla store to buy some cigarettes and that while there he "started messing with the cash register." He acknowledged that he saw Herman Gatson and "told him to get out the store." But he denied that he had a gun or that he had anything to do with the shooting of Mrs. Rapolla.
After the jury returned its verdict of guilty of murder in the first degree the defendant moved for a new trial asserting, inter alia, that the verdict was contrary to the weight of the evidence. The trial judge denied this motion and before us the defendant asserts that this constituted reversible error. He contends that "the jury could not reasonably have excluded the very real possibility that the murder was perpetrated by one or more of the State's witnesses" who were in the store "at the approximate time of the murder." We find no basis for this contention. Though no witness actually testified that he saw the defendant shoot Mrs. Rapolla, there was more than enough testimony from which the jury could properly infer that the defendant shot Mrs. Rapolla and could find beyond reasonable doubt that he was guilty of her murder in the first degree. The trial court could not fairly have concluded from the testimony before it, nor may we from the record before us, that "the verdict was the result of mistake, partiality, prejudice or passion" within
R.R. 1:5-3(a), or constituted "a manifest denial of justice under the law" within R. 2:10-1.
We come now to the various points of alleged trial errors which the defendant contends entitle him to relief on appeal. His first point attacks the in-court identification of the defendant by Marie Rapolla and by another State's witness, Marlene Longette. When Marie saw the defendant at the cash register she recognized him as a customer. She had seen him on many occasions and had waited on him. Indeed the defendant in his own testimony acknowledged that Marie had waited on him in her mother's store about a dozen times. Within a couple of days after the shooting, the police showed her gallery books which contained hundreds of photographs but none of the defendant. About three days after the shooting she was shown a photograph of the defendant and as soon as she saw it she said "that's the guy." Thereafter the defendant was placed under arrest. At the trial Marie made a firm identification of the defendant as the man she saw at the cash register.
The identification procedure was neither unfair nor impermissibly suggestive. Marie knew the defendant, though not his name or address, and the sensible police course was taken in showing her gallery books which happened, however, not to include any photograph of the defendant. When the additional photograph was shown to her there were, according to the testimony, no accompanying suggestive comments and Marie's identification was immediate and spontaneous. The trial court correctly concluded that Marie's out-of-court identification was not improper and correctly permitted her in-court identification; indeed, the record before us dictates a finding that her in-court identification was independent of her prior out-of-court identification and was therefore in any event admissible. See Joyner v. State, 7 Md. App. 692, 257 A.2d 444, 454 (1969); cf. State v. Mustacchio, 57 N.J. 265 (1970).
Marlene Longette testified that during the afternoon of January 10 she went to Mrs. Rapolla's store and saw her
waiting on a man whom she identified as Mr. Siciliano, a State's witness during the trial. Marlene further testified that three persons, whom she could not identify, came into the store and that, as she turned around, she saw a fourth person behind her whom she identified at the trial as the defendant. She acknowledged that on January 19 the police had shown her three photographs including one of the defendant whom she then identified as the fourth person. She at that time had some difficulty making the identification because, as she testified, the defendant's photograph depicted him at an earlier age without his mustache and goatee and in different clothing. But at the trial she unequivocally identified the defendant and testified that her in-court identification was based on her view of the defendant in the store on January 10. The trial court, considering the totality of the circumstances (Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, 1206 (1967); Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L. Ed. 2d 1247, 1252-1253 (1968)), ruled that the out-of-court identification was made "under circumstances which precluded unfairness and unreliability" (State v. Matlack, 49 N.J. 491, 498, cert. denied, 389 U.S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967)) and that Marlene's in-court identification was admissible. We find no legal error in this ruling. Furthermore, Marlene's in-court identification is properly to be viewed as independent of her photographic identification and in any event as nonprejudicial. There was overwhelming testimony, including that of the defendant himself, establishing the fact that the defendant came into the store at the same time as the three other persons who, during the course of their testimony as State's witnesses, identified themselves as Clayborn Butts, Jr., Robert Miller and Junior Wilkins, all friends of the defendant.
The defendant contends that under United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) counsel on his behalf should have been present at the out-of-court identifications by Marie and Marlene. He
did not raise this issue at the trial but now seeks to assert it on appeal as plain error. R.R. 4:63-2; R.R. 1:5-1; R. 1:7-5; R. 2:10-2. Wade was a case in which a defendant who had been indicted and had counsel was placed in a lineup for identification purposes without any notice to his counsel, Whether it is to be applied to pre-indictment cases need not be decided here. See State v. Mustacchio, supra, 57 N.J. at 269-270. Surely it has no application to Marie's out-of-court identification which occurred before there was any arrest or custody. And while Marlene's out-of-court identification occurred after the defendant was in custody, there was then no indictment or lineup and the identification was wholly photographic. The Supreme Court has not as yet held whether Wade applies to such photographic identifications and the State decisions are not uniform. Compare People v. Stuller, 10 Cal. App. 3d 582, 89 Cal. Rptr. 158, 168 (1970), People v. Hawkins, 7 Cal. App. 3d 117, 121-122, 86 Cal. Rptr. 428, 430 (1097), Dorsey v. State, 9 Md. App. 80, 262 A.2d 591, 595 (1970), Cook v. State, 8 Md. App. 243, 259 A.2d 326, 329 n. 2 (1969) and Barnes v. State, 5 Md. App. 144, 245 A.2d 626, 630 (1968) with Thompson v. State, 451 P. 2d 704, 706-707 (Nev.), cert. denied, 396 U.S. 893, 90 S. Ct. 189, 24 L. Ed. 2d 170 (1969) and Cox v. State, 219 So. 2d 762, 765 (Fla. App. 1969). See United States v. Zeiler, 427 F.2d 1305, 1307 (3 Cir. 1970); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738, cert. denied, 400 U.S. 919, 91 S. Ct. 173, 27 L. Ed. 2d 159 (1970). However, we need not pursue the subject here in view of our earlier conclusion that Marlene's in-court identification was independent of her photographic identification and was, in any event, nonprejudicial.
The second point in the defendant's brief asserts that "the prosecutor's comments, testimony and publicity relating to defendant's financial circumstances deprived him of due process of law." We find no merit in this point. Local newspaper articles referred to the defendant as an unemployed laborer and noted that he was represented by the
Public Defender. Because of this the defendant moved during the selection of the jury for a mistrial, citing State v. Mathis, 47 N.J. 455, 471-472 (1966) where this Court condemned the projection of poverty as evidence of criminal predisposition. The trial court properly denied the motion, pointing out that the suggested prejudice could be weeded out through the voir dire. The prospective jurors were interrogated freely as to any reading on their part of the ...