For modification -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall and Schettino. For reversal -- Justice Francis. The opinion of the Court was delivered by Jacobs, J. Francis, J. (dissenting).
The defendant Holland was convicted of murder in the first degree and was sentenced to death. He appealed directly to this Court and, after oral argument, we withheld decision while awaiting recent Supreme Court determinations bearing on the death penalty. See Mathis v. New Jersey, 403 U.S. 946, 91 S. Ct. 2277, 29 L. Ed. 2d 855 (1971), rehearing and motion for clarification denied, 404 U.S. , 92 S. Ct. 31, 30 L. Ed. 2d 125 (1971); Funicello v. New Jersey, 403 U.S. 948, 91 S. Ct. 2278, 29 L. Ed. 2 d 859 (1971), rehearing and motion for clarification denied, 404 U.S. , 92 S. Ct. 31, 30 L. Ed. 2d 125 (1971).
Ronald Sandlin, an attendant at a service station in Lakewood, was murdered in the course of a holdup. The defendant Holland and Reginald McKnight were jointly indicted for the robbery and murder. A severance was granted and McKnight was tried first. He had made a statement in which he told in detail about his participation with Holland in the robbery and murder. McKnight said that he first struck Sandlin with a tire iron and that later
Holland shot Sandlin with a gun which was in his possession but which belonged to McKnight. Sandlin's body was buried in a shallow grave which McKnight said he and Holland had dug with shovels obtained from the basement of McKnight's house. After a full trial during which McKnight's guilt was "established overwhelmingly" (State v. McKnight, 52 N.J. 35, 40 (1968)), the jury returned a verdict of guilty of murder in the first degree with a recommendation of life imprisonment. McKnight's conviction and life sentence were sustained by this Court in an opinion reported at 52 N.J. 35.
At Holland's trial, McKnight did not testify and his statement was of course inadmissible. Nonetheless the State's evidence clearly established that Holland, who was nineteen years of age, actively participated in the robbery and murder. Though much of it was circumstantial, it was strong and convincing and a fingerprint, located on the back of the cash register which was taken from the service station during the course of the robbery, was firmly identified by a fingerprint examiner of the Federal Bureau of Investigation as that of Holland. The jury in returning its verdict necessarily determined that Holland's guilt had been proved beyond reasonable doubt and, though his main brief sets forth seven points of alleged legal error, the defendant does not contend that the jury's verdict was against the weight of the evidence. Indeed if any such contention had been advanced here it would readily be rejected. See R. 2:10-1; State v. Trantino, 44 N.J. 358, 370 (1965), cert. denied, 382 U.S. 993, 86 S. Ct. 573, 15 L. Ed. 2 d 479, rehearing denied, 383 U.S. 922, 86 S. Ct. 901, 15 L. Ed. 2 d 679 (1966).
In the first and second points of his brief, the defendant complains about the denial of his motion for change of venue and about the prosecutor's references to the McKnight case during the voir dire. The motion for change of venue was grounded on the fact that the McKnight case had received such wide publicity in Ocean County as to render it unlikely that a suitable jury could be selected
to try Holland within that county. While there was much to be said in favor of a change of venue, we cannot find from the record before us that the denial of the motion was beyond the lower court's broad discretionary authority or that it amounted to prejudicial error calling for reversal of the defendant's conviction. See State v. Ravenell, 43 N.J. 171, 180-181 (1964), cert. denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2 d 572 (1965). Once it was determined that the trial was to be held in Ocean County, the efforts of all concerned were properly directed towards obtaining the fair and impartial jury to which the defendant was entitled and the prosecutor's references during the voir dire were undoubtedly designed towards that end. The prospective jurors were specifically interrogated as to their ability to decide the Holland case without regard to anything they might possibly have heard about the McKnight case and the trial judge gave explicit and appropriate instructions on the subject to those who were ultimately and carefully chosen to serve as jurors in the light of their stated impartiality and objectivity.
In his third point, the defendant contends that he "was denied a fair trial by the failure of the prosecution to introduce a portion of an alleged co-perpetrator's statement which could have been helpful to defendant's case." During the trial the defendant asked the prosecutor to introduce that portion of McKnight's statement which asserted that he had hit Sandlin with the tire iron. The prosecutor refused to do so although he offered to introduce the entire statement. Some reliance is placed on the doctrine that a prosecutor may not suppress or withhold evidence favorable to the defendant (Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2 d 215 (1963); Giles v. Maryland, 386 U.S. 66, 87 S. Ct. 793, 17 L. Ed. 2d 737 (1967)) but that doctrine has no application here. The defendant was fully aware of McKnight's statement and there was no suppression or withholding of its contents. The prosecutor was not in any position to introduce McKnight's statement
or to vouch for its absolute truth in whole or in part. Nor was he under any obligation to introduce the selected portion which the defendant wanted the jury to consider but which the defendant himself did not seek to introduce under the authority of any established rule of evidence. Cf. Evidence Rule 63(10); Report of New Jersey Supreme Court Committee on Evidence 170 (1963).
In his fourth point, the defendant complains about the trial court's action in permitting the introduction into evidence of certain trousers, shovels and a pistol. The trousers were found in the grave with Sandlin's body. They were bloodstained and were undoubtedly connected with the crime. The shovels were discovered in the Manchester Township dump and were described by a witness as identical or similar to those that he saw Holland and McKnight carrying on the day following the murder. The pistol was found near the defendant's home. It was a .38 caliber revolver from which the cartridge case found in Sandlin's wallet in the grave had been fired. There was ample circumstantial testimony involving Holland, along with McKnight, in the commission of the murder and the evidential items referred to were clearly relevant. Their weight ...