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State v. Kelly

Decided: January 7, 1972.


Conford, Matthews and Fritz. The opinion of the Court was delivered by Conford, P.J.A.D.


This is an appeal from a conviction of murder in the first degree in which the jury recommended and the court pronounced sentence of life imprisonment. Three grounds of appeal have been briefed and argued: (a) failure of the trial court on request of the defense to inquire of the prospective jurors concerning any predisposition as to the defense of insanity; (b) alleged excessive and prejudicial intervention by the trial judge in the cross-examination of one of defendant's medical experts; and (c) refusal of the trial court to permit cross-examination of the State's medical witnesses as to their understanding of the law of insanity as a criminal defense.

Defendant Alfred Kelly, about 64 at the time of the homicide on July 24, 1969, shot to death Adolph Tober, then in his early forties, in the courtyard of the garden apartment house in Paterson of which Tober had been a co-owner since early 1967 and defendant and his wife tenants for several years.

Defendant is a college graduate and a veteran of military service as a United States naval officer in World War II. He had had a career in various employments of moderate compensation and had once failed in a business of his own. At

the time of the events here involved he was a new and used car salesman earning under $10,000 per year. He lived with his wife, then about 56, but had no children.

The decedent actively managed the apartment building. He had frequent difficulties with defendant. The latter complained about other tenants he considered undesirable; there were minor matters relating to maintenance of the property. During one confrontation, according to defendant, Tober twisted his arm and said "You're an old man and I could kill you with one hand." About a month prior to July 24 defendant overheard an altercation between Tober and another tenant, Mrs. Schultz, who was friendly with the Kellys, and attempted to intercede. There is evidence that Tober told defendant to move if he didn't like it there, and threatened to evict him; that defendant rushed to strike Tober but was restrained by his wife; that a few minutes thereafter Tober's partner, De Marco, visited defendant to return his fallen eyeglasses and was told by the latter: "Tell him [Tober] to stay away from me -- I was taught how to kill these Nazis." Defendant testified, admitting the episode, and that he later sent a letter of apology to Tober, fearing eviction, but he denied use of the language about Nazis.

Defendant, corroborated by his wife, testified that Tober, a married man, had made amorous advances toward Mrs. Kelly and been rebuffed by her. Mrs. Schultz said she had had similar experiences and had told the Kellys. Defendant testified that on the morning of July 24 (a Thursday) while at work he received a phone call from Tober who told him he wanted to see him over the weekend "to settle their differences once and for all." The previous evening Mrs. Schultz had showed defendant a notice to herself and her husband from Tober demanding an increase in rent or termination of tenancy, and asked him to obtain legal advice about it for her. Defendant said he left work for home about 8:30 P.M. on the 24th. He took one drink from a bottle of Scotch he kept in the car (his wife was a "teetotaler" who objected to his keeping liquor at home).

En route home defendant was bumped in the rear by another car and was able to make a notation of the license number. When he arrived home he saw a car parked at the curb with a license number almost identical with his notation and of the same color as that which had bumped his. Tober came over and said it was his car. An argument ensued over defendant's announced intention to report Tober as a "hit-and-run" driver. Tober allegedly grabbed defendant's arm, said he'd be the "sorriest man" in the world if he did so, and implied a threat of eviction. Some aspects of this episode tend to be corroborated by two independent witnesses passing by at the time, as well as by Mrs. Schultz.

Mrs. Schultz testified she saw Tober and defendant talking together on the occasion just mentioned and heard Tober threaten defendant with eviction. Tober left in his car and defendant walked to the house entrance. He seemed "very unstable"; he wanted to talk with her but "couldn't get anything out." He stumbled on the way to his apartment. He couldn't open the door with his key, and she helped him. In his testimony defendant admitted these facts but denied he was intoxicated. (At trial Mrs. Schultz said she didn't then think defendant had been intoxicated but admitted she entertained that opinion on July 24 and had so informed the police after the shooting.)

Defendant testified he went up to his apartment (his wife was not there), took off his clothes and put on his pajamas to relax. He received a phone call from Tober who threatened to come back, rape his wife and kill both of them. He tried to phone the police but couldn't. He became concerned over finding his wife. He has only spasmodic memory for subsequent events. He picked up a loaded gun he kept in his bedroom which he had not touched since buying it two years previously. He remembers being outside the building, firing the gun and hearing two clicks. He doesn't recall seeing or talking to anyone. He remembers going back to the apartment and seeing a police officer there who asked

for the gun. He remembers being fingerprinted at the police station but not being questioned by the police.

The State's witnesses established that defendant emerged from the building and walked a few feet past Tober, who was conversing with a tenant. Defendant was heard to say, "I hate him -- I hate that guy -- I want to kill him." He seemed in a daze, nervous, "looked like he was in a trance." He turned around and shot Tober in the leg. As the latter bent over, crying out, "Kelly, you crazy s.-o.-b.-, you bastard," defendant shot him twice more, exclaiming, according to one witness, "Take this, you s.-o.-b.-." Tober was dead on arrival at the hospital. After the shooting defendant was "quiet, calm as if he was frozen." Some of the witnesses thought defendant was under the influence of liquor. He was dishevelled, without underwear or socks, his shirt misbuttoned (ordinarily he was neat and orderly in his dress).

Defendant's appearance to the arresting officers was as of a "man in a fog," with eyes "glazed." He gave off a "slight odor of alcohol." He was warned of his rights by the deputy police chief at the scene of the killing and responded, "I know, I know, I shot him." While being interrogated at the police station he told the examining officer, "I fully understand what you have told me." The officer didn't think he was "drunk," but "dazed." As they conversed, the daze appeared to clear up. His speech was coherent. He told the officer he and Tober had had arguments the past few months.

Defendant produced three medical experts at the trial. Each testified, on the basis of examination of the defendant and a hypothetical question, that defendant at the time of the crime had a mental disease or disorder which made him unable to appreciate the nature, quality or consequences of his act. Two of them also concluded he could not then differentiate between right and wrong. One of them, Dr. Fraulo, vacillated on that point. Defendant never manifested any mental disorder or tendency toward violence before this incident. He was fully oriented when examined by the experts

months after the event. But Doctor Fraulo found him without appropriate "affect" for what he had done and his current predicament.

Dr. Markowitz, a young neurologist with limited training in psychiatry, gave the opinion that defendant at the time of the shooting was in a fugue state, not able to integrate events, acting automatically, not functioning on the normal basis of receiving and organizing information and determining therefrom how to act, and with accompanying amnesia for events.

Dr. Fraulo, a psychiatrist, testified defendant had developed paranoid ideas about Tober which took on delusional form. He had a pre-morbid personality, of obsessive, compulsive character, and an impaired "ego function." At the time of the killing he was in a "dissociated state," where the unconscious takes over from the conscious.

Dr. Berman, a veteran psychiatrist, testified that defendant developed a paranoid condition with the fixation that Tober was his tormentor. By the time of the shooting he had gone into a fugue state, a condition of disassociation, with "separation" between consciousness, awareness and control. There followed "patches" of memory of the events. Consumption of liquor was not a significant factor in inducing the destructive conduct. The fugue state began when he received the phone call from Tober, and recovery therefrom occurred at the police station.

Two psychiatrists testifying for the State, Dr. Brancale and Dr. Campean, on the basis of an extended interview with and examination of defendant, were of the opinion that at the time of the incidents on July 24, 1971 defendant was not suffering from a psychotic disorder, could ...

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