For modification and affirmance -- Chief Justice Weintraub and Justices Proctor, Hall and Schettino. For affirmance -- Justice Francis. The opinion of the Court was delivered by Weintraub, C.J. Proctor, J. (concurring). Francis, J. (dissenting). Proctor, J., concurring in result.
Defendant was convicted of murder in the first degree. The jury not having recommended life imprisonment, the death sentence was imposed. N.J.S.A. 2A:113-4. Defendant's appeal comes directly to us. R. 2:2-1(a)(3).
Defendant asserts errors with respect to both the finding of guilt and the imposition of the death penalty. The State denies there was error in either respect, but, in the words of the State's brief, "the present Prosecutor feels it incumbent to advise the court that, as a policy matter, he would not seek the death penalty in this matter if it were moved for trial at this time; and also, that he does not seek or desire the execution of the present defendant." The State adds that it "is of the opinion that this Court can amend a death sentence to life imprisonment, and should do so in this case." For the reasons which follow, we conclude the judgment is free from error but the prosecutor's recommendation for modification of the sentence to life imprisonment should be approved and the judgment modified accordingly.
Defendant contends the evidence did not warrant a finding beyond murder in the second degree, and alternatively that the finding of murder in the first degree was against the weight of the evidence.
Defendant raised the issue of the sufficiency of the proof by a motion at the close of the State's case. Defendant argued the State had not carried its burden to prove beyond a reasonable doubt that the murder was perpetrated by "willful, deliberate and premeditated killing," N.J.S.A. 2A:113-2, as those terms have been defined, i.e., that a design to kill was conceived, was deliberated upon, and was then willfully executed, see State v. Di Paolo, 34 N.J. 279, 295 (1961), cert. denied, 368 U.S. 880, 82 S. Ct. 130, 7 L. Ed. 2d 80 (1961). Upon that motion, the State was entitled to the most favorable view of its proofs and the reasonable inferences therefrom. State v. Reyes, 50 N.J. 454, 458-459 (1967). Thus viewed, the State's case was adequate, as the following review will show.
The homicide arose out of a family setting. The victim, Albertus Conyers, Jr. (herein Junior) was defendant's nephew, defendant and Junior's father being brothers. Junior, age 16, was a high school student. It seems undisputed that Junior had kicked (or kicked in) the door at the residence of Ethelee Wooten, whose mother, Duella Jones, is the sister of both defendant and Junior's father; that Mrs. Jones asked defendant to tell Junior to stay away from Ethelee's apartment; that defendant, accompanied by Ethelee's daughter, Vickie, and a nephew, went to Junior's home to deliver a message or an order to that effect.
Junior lived with his parents and a cousin, Adam Singleton. All were home when defendant and his party arrived. The visit began with some good-natured joshing. When defendant said he wanted to talk with Junior, Junior, who was in the bedroom and heard defendant, entered the living room saying, "You want to see me, Uncle L.C.?" Defendant
asked Junior why he had kicked in Ethelee's door, to which Junior answered that he had not, and that the matter was "straightened out." Defendant then told Junior that Ethelee did not want him to come to her apartment again. Junior answered that she, and not defendant, should tell him so. After some further words, defendant invited Junior outside to settle the matter. Junior declined, saying "I don't have to go downstairs, because I live here." Defendant replied that he could "take you over now by dragging you downstairs." Defendant rose from his chair and ordered Junior to stand up. Junior did not do so until the third such command, whereupon defendant, two or three feet from Junior, drew a gun and fired a single shot into the boy's chest, killing him almost instantly. Defendant ran from the apartment, saying "I will call the cops. I will call the ambulance. Don't nobody come out," and when Adam Singleton started for the door to seek help, defendant, with gun in hand, warned Adam, "Don't come out here; you get it too."
Defendant, and Vickie and the nephew who had come with him, drove to the office of Joseph Connors, whom defendant knew and who was in the bail bond business. Connors testified that defendant, extremely nervous, said he needed advice because something terrible had happened; that because of a family problem he had gone to his brother's home to make peace; that his nephew "went at him and he shot him"; that Connors asked defendant for the gun, whereupon defendant handed him the weapon; that when efforts to reach an attorney failed, defendant, on Connors' advice, went with Connors to police headquarters to surrender himself.
The State's case included these additional facts: that when Connors asked defendant "where he got the gun * * * he told me he used it in his guard's job"; that there was no public record of the purchase, registration, transfer, or theft of the gun; that the gun was fired a minimum of 14
inches from the victim; and finally, that after his indictment for this murder, defendant threatened Adam Singleton and told him not to testify.
In contending the evidence cannot sustain a finding that a design to kill was conceived, deliberated upon, and then willfully executed, defendant starts with the premise that defendant was unexpectedly confronted with resistance by Junior, verbal at least, and that the shooting was an unplanned response to that surprising development. But on the motion to foreclose consideration of first-degree murder the State was entitled to the most favorable view of its proofs. This being so, the State was not limited to the hypothesis that defendant first contemplated the use of the weapon when Junior defied him, for the jury could infer that defendant came to Junior's home determined to brook no resistance from his nephew and to kill him if need be. The fact that defendant brought a gun with him could be found to support the thesis that he was so minded when he went to the boy's home. We add that this thesis could be aided by a fact defendant himself stresses, that Junior stood about 6 feet 1 inch and weighed some 170 pounds while defendant was 5 feet 7 inches and weighed 140. Upon the facts in the State's case and legitimate inferences from them, we are satisfied the issue of the degree of murder had to be sent to the jury.
With respect to the companion question, whether upon the total record the finding of murder in the first degree was against the weight of the evidence, it must be said that defendant's version of the affair strengthened the case against him.
The most damaging fact in the State's case as to the degree of the homicide was that defendant brought the gun with him. Defendant's statement to Connors that he had the gun because he was employed as a guard offered a basis for negating an inference that he came with a studied design to kill. But at the trial defendant insisted he came unarmed;
that it was Junior who produced the gun, and that the gun was accidentally discharged and fell to the floor as defendant, unaware of the nature of the object, sought to restrain the young man. The story just did not mesh with the circumstances, and defendant's claim that after the shot was fired, he picked the weapon from the floor, still not knowing it was a gun, added to the unbelievable quality of his account. Moreover defendant thereby challenged the testimony of Connors that defendant said he had the gun because of his employment as a guard. Indeed, defendant went on to prove that he had not been employed as a guard for some months, and that he had never been authorized to carry a weapon in that employment.
Defendant apparently gambled to seek an acquittal, and in doing so, foreclosed a solid basis for a finding that, armed for some unrelated reason, he reacted suddenly either to his nephew's defiance or to some physical movement which defendant misunderstood. The contrived nature of defendant's account of the fatal affair undoubtedly weighed against him, for the absence of some tolerable explanation with respect to the gun tended to place him in the worst possible role under the proofs, that of a cocky enforcer who went to his nephew's home to put him through some paces and to kill him if he balked.
Indeed one has the feeling that, had defendant stayed with the truth, he might have fared better as to the degree of his crime, and quite likely would have fared better with respect to penalty. But the issue for us is whether, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses," we must say "it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice, or passion," in the words of R.R. 3:7-11(b), the rule which existed when the motion for a new trial was heard, or that, in the words of the present rule, R. 3:20-1, "it clearly and convincingly appears that there was a manifest denial of justice under
the law." We cannot properly reject the jury's finding that the murder was in the first degree.
Defendant claims a number of errors with respect to the adjudication of guilt. None is substantial.
On cross-examination Junior's father was asked whether he ever had to go to his sister's home "as a result of being assaulted" by Junior, to which he answered in the negative. The defense later called the sister to testify that on several weekends Junior's father told her he came to her home because Junior had "jumped on him and fight him." The trial court excluded that testimony. It had been offered with respect to the father's "credibility." The defense now concedes that that basis would not support the offer, since the father had not been asked whether he had ever made that statement to his sister. Rule of Evidence 22(b) provides that proof of prior contradictory statements made by a witness may in the discretion of the judge be excluded unless the witness was so examined while testifying as to give him an opportunity to explain or deny the statement.
But defendant now contends the proof was admissible for a different purpose, and suggests that although that basis was not advanced to the trial court, error should nonetheless be found because it is likely the trial court would have ruled against him anyway. Specifically, defendant points out that the trial court commented that since defendant did not assert self-defense the offer could not be thought to relate to a substantive issue. Defendant agrees he did not assert self-defense, and we add that defendant did not say he came armed because he had heard of the deceased's propensity for violence. But defendant says that if evidence of the deceased's aggressiveness would be admissible upon a claim of self-defense, it should be equally admissible when the defendant contends as he does here that the shooting occurred accidentally during resistance
to an act of aggression. This is so. Rule of Evidence 47 permits proof of trait of character "for the purpose of drawing inferences as to the conduct of a person on a specified occasion," and it does not matter whether the claim is that the killing was an intentional or a merely inadvertent response to the victim's aggressiveness. But it cannot be said the trial court rejected a thesis so foreign to the thesis of credibility upon which the testimony was offered. Nor in any event could "plain error" be found, for there was no offer to prove the trait of character by a method authorized by Rule 47. That rule permits proof of a trait by evidence of reputation or of a conviction of crime which tends to prove the trait. Rather defendant sought to establish the trait by proof of specific acts of aggressive behavior.*fn1 Defendant points to the division of authority elsewhere with respect to whether the turbulent character of a deceased may be shown by evidence of particular instances of violent or quarrelsome conduct, citing 1 Wigmore, Evidence (3d ed. 1940) § 198, pp. 676-677. But Rule 47 settles that issue; it expressly provides that "Specific instances of conduct not the subject of a conviction of a crime shall be inadmissible." State v. Mondrosch, 108 N.J. Super. 1, 4-5 (App. Div. 1969), certif. denied, 55 N.J. 600 (1970).
Hence the claim of "plain error" must fail. We add that there was abundant direct evidence with respect to the fatal
event, and Junior's alleged aggressive propensity could not have bolstered defendant's incredible version of the affair. It may be said in passing that defendant sought by still other testimony to demean the deceased, and one suspects defendant hurt himself in the process.
Next, defendant was asked on cross-examination whether, on the previous Friday, he passed his grandniece, Vickie Wooten, outside the courtroom and said to her, "Don't talk to him, don't talk to that Prosecutor." Defendant answered that he had not done so. In rebuttal, the State, over objection, was permitted to prove that as Vickie Wooten appeared to be walking over to the assistant prosecutor who was trying the case, defendant did so admonish her. She having been a defense witness, the trial court permitted the testimony on the ground that it might show bias or interest on her part, meaning, we take it, that she was restrained in her testimony by the will or interest of the defendant. We think the ruling was within the trial court's discretion. In any event, if the ruling were wrong, the error was harmless. R. 2:10-2.
As mentioned earlier, Connors testified for the State that defendant came to his office, told him of the shooting, and handed over the gun, explaining that he had the gun because of his employment as a guard. Defendant testified that he met Connors on the street rather than in Connors' office, and that he did not tell Connors that he had the gun in connection with work as a guard. Defendant called his former employer who testified that defendant had not been furnished or authorized to have a gun in connection with that work. The State called Connors in rebuttal, and over objection Connors repeated very briefly that defendant did enter his office and did make the statement already mentioned relating to the acquisition of the gun.
Thus Connors' testimony was repetitive of what he had said during the State's main case. Perhaps the prosecutor was surprised by defendant's testimony and could
not recall whether Connors' testimony met it squarely. Perhaps the prosecutor sought to eliminate any doubt on the part of the jury as to whether Connors, if confronted by the defendant's testimony, would have misgivings as to his own recollection. The net effect was to tell the jury that Connors' version remained intact. Ordinarily testimony may not be repeated to that end, but the trial judge had considerable discretion with respect to rebuttal testimony, State v. Balles, 47 N.J. 331, 343 (1966), app. dismissed and cert. denied, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967), and we cannot say he misused his discretion. Nor do we see any possibility of prejudice.
On cross-examination, defendant was questioned about his alleged warning to Adam Singleton on Memorial Day 1968, not to testify against him. In that connection the prosecutor sought to bring out that defendant was then already under indictment. To the prosecutor's understandable surprise defendant answered that he was never indicted for this homicide, and then, that he had never appeared in court to plead to the indictment. In rebuttal the State proved that defendant had appeared and pled to the indictment. There was no objection to the testimony. We note that this is not a case in which a cross-examiner deliberately sought to create an issue of credibility by examining with respect to some topic unrelated to the issues in the case. State v. Mathis, 47 N.J. 455, 470-471 (1966). On the contrary, defendant himself injected the extraordinary statements which all counsel knew to be untrue, and which the State, without objection, thereupon contradicted. We see no basis for ...