For modification -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall, Schettino and Mountain. Opposed -- Justice Francis. For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For reversal -- None. The opinion of the Court was delivered by Jacobs, J. Weintraub, C.J. (concurring). Francis, J. (dissenting). Weintraub, C.J., concurs in result.
The defendants Belton and Neil were convicted of murder in the first degree. The jury recommended life imprisonment for Neil and he was sentenced accordingly; the jury made no recommendation as to Belton and he was sentenced to death. N.J.S.A. 2A:113-4. Both defendants appealed to this Court under R.R. 1:2-1(c) -- now R. 2:2-1(a)(3).
The defendants entered the Riviera Motor Hotel in Fort Lee for the purpose of committing armed robbery. Belton pulled a gun and ordered the hotel manager to turn over the money in the cash register. He did so. In the meantime Neil had gone to the rear, had pointed his gun at the hotel's desk clerk who was then eating at a table, had taken his money, and had ordered him to disrobe. During the course of the robbery a silent burglar alarm was set off by the hotel manager and shortly thereafter the police arrived. As Patrolman Birch entered he was shot three times by Belton and he later died of his wounds. As other patrolmen
entered the defendants fled but were captured in short order.
Before trial Belton sought to plead non vult but his plea was rejected (State v. Belton, 48 N.J. 432 (1967)) and the matter came on for trial. During the trial Belton testified, acknowledging the robbery and the killing and aiming his defense at obtaining a recommendation of life imprisonment from the jury. Neil also testified during the trial, acknowledging that during the course of the robbery he had pointed his gun at the desk clerk, had taken his money, and had ordered him to disrobe. Neil's defense was that Belton had coerced him into the robbery but his story was evidently given no credit by the jury. In all, the State's testimony was overwhelming as against each of the defendants and the jury's verdict was clearly in conformity with the evidence and the trial court's charge.
The defendants have advanced various legal contentions which need be dealt with only in summary fashion. They attack the trial court's refusal to grant a change of venue and a severance but these were matters within the court's discretion and there has been no showing whatever of improper exercise or prejudice. 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); State v. Mayberry, 52 N.J. 413, 420-421 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2 d 593 (1969); State v. Laws, 50 N.J. 159, 175 (1967), on reargument 51 N.J. 494, cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2 d 384 (1968). The defendants complain about pretrial publicity but it occurred more than eight months before the trial and did not prevent the selection of a proper jury. Indeed the defendants did not feel compelled to exercise all of their peremptory challenges and the mitigative recommendation in favor of Neil tends to support the substantial indications in the record that there were no improperly "aroused passions" (State v. Gallicchio, 51 N.J. 313, 318, cert. denied, 393 U.S. 912, 89 S. Ct. 233, 21 L. Ed. 2 d 198 (1968)),
nor any disabilities on the part of the jury to deal "fairly and impartially" with the evidence and the court's instructions. See State v. Ravenell, supra, 43 N.J. at 181.
The defendants attack the trial court's refusal to grant a mistrial after Juror Chankalian was excused, thereby leaving thirteen of the fourteen jurors chosen under the authority of R.R. 3:7-2(d) -- now R. 1:8-2(d). During the voir dire Chankalian stated that he knew Assistant Prosecutor Polito in high school and that that was the last time he had any association with him. He further stated that insofar as the case against Belton and Neil was concerned his acquaintance with Polito would make "absolutely no difference" to him. He was chosen as a juror on Friday, June 9, on the following day the selection of the jury was completed, and on June 12 the trial began. On Saturday, June 10 Polito read a newspaper item listing Chankalian as a juror and on June 12 Polito advised the court that he had represented Chankalian in a title closing about two years earlier but that apart from that he had no association with him since high school. Thereupon the trial court excused Chankalian as a juror and proceeded with the remaining thirteen jurors.
Counsel for the defendants now advance the suggestion that Chankalian's presence may have contaminated the other jurors during the period prior to his excusal but there is nothing supportive before us. Indeed the motion for mistrial was not grounded on any suggestion of contamination but on the contention that the defendants were improperly being "precluded from having a group of fourteen jurors from which to choose" at the end of the case. The contention was properly rejected as utterly without merit for the defendants had no right to have fourteen jurors at the close of the case. The very reason for having the alternate jurors was to enable the proceedings to continue with at least the required twelve jurors if during the course of the trial a juror was, for any reason, no longer able to serve. See State v. Dolbow, 117 N.J.L. 560 (E. & A.), appeal dismissed, 301 U.S. 669, 57 S. Ct. 943, 81 L. Ed. 1334 (1937);
Pressler, New Jersey Court Rules, R. 1:8-2 (1971); Rules of Criminal Procedure, 18 U.S.C.A., Rule 24(c) (1969); 5A Moore's ...