For affirmance but judgment withheld -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the Court was delivered by Francis, J.
The Grand Jury of Morris County indicted defendant Frederick Thompson for the murder of Dorothy Palmer on Friday, September 29, 1967, in Harding Township of that county. At a jury trial which concluded on November 21, 1968, Thompson was convicted of murder in the first degree. The jury made no recommendation of life imprisonment, and, therefore, pursuant to the statutory mandate, the trial court imposed the death penalty. N.J.S.A. 2A:113-4. Direct appeal followed in due course. R. 2:2-1(a)(3).
The case was argued some time ago and under ordinary circumstances would have been decided at an earlier date. However, defendant raised certain constitutional questions the resolution of which depends upon the outcome of a number of appeals pending in the United States Supreme Court, and certain other appeals which are to be reargued in this Court. Since vacancies in the United States Supreme Court make it unlikely the decisions therein will be forthcoming for some time, we have concluded that all aspects of this appeal should be disposed of now, reserving only those issues which must await action there or reargument in this Court.
Prior to her death the decedent Dorothy Palmer and her husband H. Bruce Palmer resided in a ranch type, one-family dwelling situated in a sparsely populated residential area on Blue Mill Road, Harding Township, a short distance outside of the Town of Morristown. The main entrance is located in the center of the house and opens into a large foyer behind which is a sizeable combination living room-dining room. The right wing of the house consists principally of Mr. Palmer's bedroom in the front, Mrs. Palmer's bedroom in the rear, with a connecting bath between the two. The left wing contains the kitchen, a utility or laundry area, a family room or den and a spare bedroom or guest room. For some time prior to the killing the Palmers lived alone in the house; their children had married and moved elsewhere.
The Palmers also maintained an apartment in New York City, and they had been occupying it earlier in the week of September 29. On Thursday, September 28, Mr. Palmer left for a business conference in Massachusetts, and Mrs. Palmer returned alone to their Harding Township home.
The defendant Thompson knew the Palmer property. In 1964 or 1965 while in the employ of a tree expert he worked on the trees there on several occasions. Mr. Palmer had conversed with Thompson on at least one occasion and knew him well enough to identify him at the trial.
Thompson was paroled from a Connecticut prison on September 27, 1967. His parole officer had found a job for him in Bridgeport, Connecticut, to commence on September 28. Thompson talked with the prospective employer on the day of his release and arranged to report for work the following morning. He appeared as directed, but said he had some personal business to take care of and would come in the next day, September 29. However, he did not appear and the prospective employer never heard from him again.
On September 28 Thompson came to New Jersey. Around noon of that day he visited a shop in Paterson which was operated by Fred Salonen. His purpose was to sell some sketches he had made. Salonen knew Thompson because he had visited the store on earlier occasions, but he did not buy any of the sketches on this occasion. It was apparent that Salonen was acquainted with Thompson's wife also because Thompson inquired as to whether he had seen her. At the prosecutor's request Salonen pointed out Thompson in the courtroom.
An Erie-Lackawanna railroad conductor positively identified Thompson as a person he had seen board his train at East Orange in the early morning of September 29, and alight at Morristown at 1:27 A.M. The conductor knew the passengers who generally used his train on that early morning hour run, and Thompson being a new face was particularly noticed by him.
Shortly before 9 A.M. on September 29, Mrs. Palmer drove to Madison and picked up Mrs. Mary Venneri who did house-cleaning for her one day a week. At about 9:05 A.M. they came back to the Palmer house, entered the garage in the left wing and went upstairs into the foyer. After giving instructions to Mrs. Venneri about her duties for the day, Mrs. Palmer went off in the direction of her bedroom and Mrs. Venneri went to the laundry room to prepare for the work. There she noticed some leaves and peat moss on the floor and began to pick them up. While doing so she heard a sound like a sigh and ran into the guest room. From there she saw Mrs. Palmer on the floor in the foyer with a man about six feet two inches tall standing over her holding a knife in his right hand. She said it was light in the foyer although it was raining outside. She described the man as being dressed in dark clothes, and although she testified she would never forget his face "as long as [she] lives," and that his complexion was "light," it seems plain that she was not certain on the scene whether he was white or black. Thompson is a Negro of fairly light complexion.
It appears that five or six days after the murder when Mrs. Venneri identified Thompson as the killer from some photographs of whites and blacks, she did not know then whether he was white or black. However, at the trial she left the witness stand and identified him, saying there was no question that he was the man.
Mrs. Venneri testified that when she came upon the scene the man holding the knife said "Don't move. I'll kill you next." But she screamed and ran out of the back door calling for help. A passing female motorist picked her up. The motorist, Mrs. Ellen S. Fearon, testified that Mrs. Venneri was "hysterical" in describing what was going on in the Palmer house, and on reaching the nearest telephone they called the police, who asked that they return to the Palmer driveway. The police arrived at 9:24 A.M. and on entering the house found Mrs. Palmer face down in the foyer. No sign of breathing or pulse was detected but one officer called an ambulance and a doctor, and then turned the body over in order to apply a resuscitator. There was a can of "Rebuff," a mace type repellant, in Mrs. Palmer's right hand. This was removed and shortly thereafter some photographs of the body were taken.
Police examination of the house revealed a ground level window in Mr. Palmer's bedroom had been pushed in and its screen ripped. Inside on the floor there were broken glass and pieces of wood from the window; also particles of mud and peat moss had been tracked across the room. In Mrs. Palmer's bedroom "scuff marks," traces of mud on pieces of furniture, and a half string of pearls were found. The other half of the string of pearls was under the body in the foyer. Blood was noted on the wood molding in the small alcove of Mrs. Palmer's bedroom. A footprint was seen on the bathroom rug, and a photograph taken of it was admitted in evidence over defendant's objection.
A State Trooper observed spots on the foyer wall which proved to be Rebuff. On the day after the murder, another trooper found a pocketbook in a wooded area near the Palmer
house. It was identified by Mr. Palmer as belonging to his wife. It contained several items belonging to her, but no money, and the small billfold in which she ordinarily carried her money was never found. A chemist who examined the pocketbook around October 6 found stains of Rebuff on both the inside and outside of it. He testified that the vapor was projected from the can by deflecting a button located on the top, and he gave the opinion over objection that the stains on the inside of the pocketbook had been caused by discharge within that area and that the discharge had occurred fairly recently. On cross-examination he expressed the opinion that the Rebuff spray had been released by "someone taking it out of the pocketbook." He noted also that the can had human blood on the outside surface.
Mrs. Palmer's body was removed and later in the day an autopsy was performed. The examining physician found 25 lacerations over the entire body, including the left hand and arm, the chest, one ankle, the back and shoulder blades, the neck and one thigh. The cause of death was "a bilateral pneumothorax and hemorrhage from lacerations of the abdominal aorta * * * due to knife wounds."
Commencing on the day of the murder and lasting for about six days, an intensive search for the killer was carried on. One hundred fifty to 200 men were involved and the effort was largely directed toward the nearby "Great Swamp." Helicopters were utilized but the search proved unproductive.
For reasons that need not be detailed, since they were not disclosed in the presence of the jury, suspicion began to point to Thompson and investigation revealed that he had spent three days between September 28 and October 4 in a Newark rooming house. The police located Mrs. Joyce Ferrell, defendant's sister-in-law. She and her sister, defendant's wife, are white. Mrs. Ferrell testified to the substance of some telephone calls she received from Thompson before and after the murder. Thompson called her on September 27 inquiring as to the whereabouts of his wife; she said
she did not know. On Monday, October 2, and Wednesday, October 4, he again phoned from Newark seeking information about his wife. Then he called her on October 6, by which time he had been identified in the newspapers as a suspect. Mrs. Ferrell related that conversation, and because it was an important element of the State's proof, and its admission in evidence a ground of appeal, we set it forth:
A. Well, the telephone rang and I picked it up and he said, 'Hello,' and I said, 'Ben,' I said, 'Where in the world are you?' and he said, 'Wouldn't you and everybody else like to know,' so he said, 'Did you see the paper?' and I said to him, 'Did I see the paper?'
I said, 'I hope to tell you I saw the paper,' and I said to him, I said, 'You didn't do that, did you, Ben?' and he said to me, 'No comment.'
Q. Now, what paper? When you said, 'What paper, I hope to tell you what paper,' what paper had you seen?
Q. What in the paper had you seen?
A. They had a picture of Ben in it and they were looking for Ben as a suspect for the murder of Mrs. Palmer.
Q. Did you then ask him any other question about anything that appeared in the paper or anything he had done? A. Well, as -- when I said that I had seen the paper and all and I said to him, 'Ben, you didn't have to do that' -- I said 'You didn't do that, did you?' and he said, 'No comment.'
I said, 'You couldn't have been that stupid.' I said, 'My God,' I said, 'you didn't have to kill her.'
I said, 'Why didn't you just hit her? -- you would have knocked her right across the room.'
So he said to me, 'Well, it's just one of those things.'
Q. Was there any further conversation on that date about anything that you had seen in the paper, anything about any search or anything of that sort?
A. Yes, sir. As a matter of fact, he said something -- I mean he said that apparently in one of the papers that he had -- I don't know which one -- he said they were crazy for something to do with the silk stocking, which I don't know anything about that.
Q. Was there anything else about where he had been?
A. I said to him, 'Gee, I said "you've been here in Newark and," I said, "they have been looking for you in the swamp and everything," and so he said to me, "Well, he said, 'I had some pretty close calls there. I will have to tell you about it sometime and also about the helicopters.'"'
Q. Well, I mean what was said between you and him about helicopters? A. Well, the thing about the helicopter was, well, when he
said that he was -- I said that 'they have been searching for you in the swamp, they were still looking for you all this time,' and he said to me, that he said -- he said, 'I had some pretty close calls there I will have to tell you about,' and he laughed and he said, 'There were quite a few helicopters and that around also,' it was just in with the conversation on the swamp.
A. Okay. I asked if there was any -- if they had any clues or anything like this and he said, 'no', and I said to him, 'Well, what about the pocketbook?' and he said 'Unh-Unh, no good,' and I said, 'Well, what about the mace?' and he said 'unh-unh, very little effect.'"
Around the middle of the next week he telephoned her to say he was leaving the State. A week later he called from St. Louis, again inquiring about his wife. Finally, on October 19, apparently upset at his failure to obtain information about his wife, he said in the course of another telephone call to Mrs. Ferrell that he was "going on a rampage, its going to be in New Jersey, and get back to where the trouble started in the first place." The next day she notified a State Trooper about the telephone calls. Thompson's apprehension followed.
At the trial which resulted in the death sentence, Thompson elected not to take the witness stand. Out of the presence of the jury and when not under oath or subject to cross-examination, he stated to the court, "I am innocent, but that in view of my past record, I elect not to take the stand." Of course, that self-serving statement has no probative force whatever as evidence on the issue of guilt or innocence.
On this appeal defendant raises a number of alleged trial errors and constitutional issues as bases for reversal of his conviction. We shall deal with all of them save those constitutional problems which, as indicated above, depend for resolution upon cases pending in the United States Supreme Court, or to be set down for reargument in this Court. No contention is made on this appeal that the jury finding of guilt of murder in the first degree was contrary to the weight of the evidence.
The telephone conversations as detailed above, undoubtedly had considerable evidentiary significance on the issue of defendant's guilt. Defendant contends that his sister-in-law's statements or questions in the conversations contained inadmissible hearsay, and that his answers thereto -- or comments thereon, particularly since many of them were evasive at best, do not qualify as "adoptive admissions" under Rule 63(8) or declarations against interest under Rule 63(10) of the Rules of Evidence. We see no merit in the claim.
The fact that the sister-in-law's statements or questions to Thompson referred to matters she had learned from newspaper accounts of the crime is not controlling. The circumstances that gave them legitimate life as evidence were his answers to or comments on the statements or questions put to him. Overall his answers or comments revealed a personal knowledge of events associated with the murder, and constituted either actual or inferential admissions or declarations against interest with respect to its commission by him.
The inculpatory nature of the conversations is inescapable when they are put in proper focus. The subject was introduced between them by defendant's inquiry as to whether she had seen the papers. The character of her answer -- "I hope to tell you I saw the paper" and her question "you didn't do that, did you?" clearly imply that she was aware of the horrendous crime and that he was a suspect. His evasive "No comment" was not the kind of answer that might reasonably be expected from a person wholly unconnected with the crime. But, alone and of itself, its probative force might not be great. However, when Mrs. Ferrell said "My God, you didn't have to kill her," and "Why didn't you just hit her -- you would have knocked her right across the room" his answer, "Well, it's just one of those things," if accepted by the jury, carried devastating
probative force as a declaration against interest -- as an admission that he committed the crime.
The inculpatory significance of the admissions is heightened by additional references to and acknowledgment of facts which it might well be inferred only a guilty person would know. His acknowledgment that the finding of Mrs. Palmer's pocketbook by the police as a clue showed an awareness that the killer had taken a pocketbook. And his answer that the mace had "very little effect" points strongly to him as the attacker Mrs. Palmer tried desperately to ward off. Finally, his answers which revealed an awareness that a search for the killer was made in the Great Swamp, that helicopters were used, that he "had some pretty close calls there * * *" and that he would tell Mrs. Ferrell "about it some time," defy any characterization other than powerful declarations against interest.
In our judgment Thompson's answers and statements considered in the context of Mrs. Ferrell's inquiries and comments have such incriminatory impact as to bring them well within Rule 63(10) ...