On appeal from Superior Court, Appellate Division.
For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Schettino. For modification -- Justice Hall. Hall, J. (concurring in part and dissenting in part).
The judgment is affirmed for the reasons expressed in the Appellate Division opinion, 107 N.J. Super. 390 (1969).
HALL, J. (concurring in part and dissenting in part). Only two points are made by defendant upon our grant of his petition for certification (55 N.J. 588 (1970)) following the Appellate Division's affirmance of his conviction for second degree murder and a 25 to 30 year sentence imposed therefor. That tribunal's opinion was published only in part. 107 N.J. Super. 390 (1969).
Defendant's first contention is that his right to remain silent in police custody was infringed by two questions asked of him by the prosecutor on cross-examination, after he had testified on direct examination that the fatal shooting of Robert "Shorty" Owens was accidental, and by the prosecutor's later comment thereon in summation. The essence of the question was whether he had ever told the accidental event story to the police, to which he replied in the negative. The Appellate Division's view that the question and comment did not amount to error constitutes the published portion of its opinion. 107 N.J. Super. at 392-393. I concur in the result reached on this point.
The second contention is that the sentence is excessive. The Appellate Division rejected that claim in the unpublished portion of its opinion. I disagree with the majority's affirmance of that conclusion.
Some further comments should be made in connection with the first point, since I feel the Appellate Division conclusion may be too broadly expressed. A fuller recital of the state of the proofs at the time the challenged questions were asked is desirable in order to place the issue in full context. These proofs have many bizarre aspects. (They also bear upon my view of the matter of sentence.)
The state sought a first degree murder conviction, with the death penalty, based on a killing in the course of attempted robbery of the victim or on a wilful, deliberate and
premeditated shooting. The whole trial was death penalty oriented. In my view, there was no direct evidence or permissible inference sufficient to take either prong of the theory to the jury. At any rate, the jury, by returning a second degree verdict, did not accept either thesis.*fn1 At the same time, it also rejected defendant's theory of death resulting from an accidental discharge of the gun in the hands of the victim while defendant was trying to wrestle it from him. There were no eye-witnesses to the event. The state's direct evidence had to rest almost exclusively upon the testimony of a Mrs. Everline Adams, principally concerning what defendant told her immediately after the shooting.
Mrs. Adams (age 61) was a longtime "intimate" friend of the decedent (age 52). She lived in Philadelphia and was in the habit of visiting him periodically at his home in Camden. She testified that on the day in question she arrived at the home about 6:00 P.M. and found him and defendant (age 32) sitting at the dining room table drinking and talking. She had not previously known defendant and was not introduced to him by name.
How defendant came to be there was not explained until he testified. He was a friend of Shorty's of long standing, particularly when both lived in Glassboro. He now lived with his wife and children in Philadelphia and had not seen Shorty for six months. On this day he had taken a bus to Glassboro to see his brother, who was working and not at home. He then stole a car from a parking lot in that town and drove to Gloucester City to his brother's place of employment. Unable to see his brother there, he drove to Camden and visited his union headquarters and the unemployment office, apparently to see about work. (He had been employed for some time at Trio Tire Company, a tire retreading establishment in Clementon, when work was available; at the moment none was and he had a temporary job in Philadelphia.)
While walking on the street after visiting these offices, he met Shorty, who invited him to his house for a drink. Defendant did not know where Shorty lived. They walked to the house, arrived about 4:00 P.M. and proceeded to talk and drink until Mrs. Adams arrived. Just before she did, defendant said Shorty showed him a revolver, which, with bullets, was in a paper bag. Shorty then put the bag with the gun in his pants pocket. (This was established to be the gun that caused death; the state presented no evidence to account for its origin or presence at the scene or to connect defendant with it prior to the fatal event.)
To return to Mrs. Adams, she testified that after her arrival, drinking, talking and record playing continued for another hour, with everyone in a friendly mood. It seems evident that by that time both men had consumed considerable whiskey and beer. Shorty then stated that he had had enough to drink, had some business to attend to and wanted to go visit some relatives. Mrs. Adams, who was to accompany him, went upstairs to change her shoes. She said that as soon as she reached the bedroom, she heard a scuffle, a groan and a shot from a gun downstairs. A second shot followed and the sound of someone falling to the floor. Defendant immediately came up the stairs with a gun in his hand, said Shorty was dead, that he was going to kill her and "blow your brains out just like I blowed his out." He demanded money and took $5, all she had. He then commanded her to undress and raped her. Thereafter he told her to dress and that he was not going to kill her. She said he required her to accompany him, at gunpoint, out of the house and to the car parked some distance away. He drove her to the bus station to return to Philadelphia. On the way he had her write his telephone number on a card taken from the car's glove compartment (which she later turned over to the police).
Defendant's story of the shooting was quite different. He said that after Mrs. Adams arrived, Shorty became unfriendly and acrimonious conversation developed. While the testimony
is not too articulate, the impression is gained that defendant thought Shorty was suggesting he was flirting with Mrs. Adams. His story was that, as soon as Mrs. Adams went upstairs, he told Shorty he was going to leave, that Shorty told him to sit down and that when he looked up, Shorty was pointing the revolver at him. He jumped up, grabbed Shorty's arms and tried to wrestle the gun from him. The gun was discharged once in the struggle (the first bullet apparently entered Shorty's arm) and a second time when Shorty had his left hand with the gun above his head. The second shot caused death; the evidence is clear that it entered Shorty's forehead from above and the expert testimony on both sides is consistent with either a deliberate shot from that ...