For affirmance -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall and Schettino. Concurring in part and dissenting in part -- Justice Francis. Francis, J. (concurring in part and dissenting).
This is an appeal from a denial of post-conviction relief following defendant's conviction for first degree murder in 1964. It came to this court as of right because the death penalty was imposed by the jury. R.R. 1:2-1(c).
The conviction was affirmed in 44 N.J. 358 (1965). A motion for a new trial was denied by the trial judge and that action was affirmed in 45 N.J. 37 (1965). The United States Supreme Court denied certiorari, 382 U.S. 993, 86 S. Ct. 573, 15 L. Ed. 2 d 479 (1966), and a petition for rehearing thereof, 383 U.S. 922, 86 S. Ct. 901, 15 L. Ed. 2 d 679 (1966). A subsequent application to the United States District Court for federal habeas corpus was dismissed for failure to exhaust state remedies, and the present application followed. The matter was heard by the judge who presided at the original trial. Defendant was represented by counsel of his own choosing, a lawyer who was not his trial attorney. Extensive testimony was presented and the judge made full findings of fact and conclusions of law.
Argument on this appeal was had a considerable time ago. Decision was withheld because there were then pending in the United States Supreme Court cases attacking the validity of the death penalty under the New Jersey murder statute, as a result of our decision in State v. Forcella, 52 N.J. 263 (1968). That matter was not resolved until the memorandum reversal as to the death penalty and remand by that court in Funicello v. New Jersey, 403 U.S. 948, 91 S. Ct. 2278, 29 L. Ed. 2 d 859 (June 28, 1971), and our decision on the remand in State v. Funicello, 60 N.J. 60 (January 17, 1972). The result is that the death penalty is unconstitutional under our homicide statute. Trantino was a party to the remand proceedings before us in Funicello and his death sentence was set aside, and he was "sentenced to life imprisonment, nunc pro tunc, as of the date the death sentence was initially imposed, the defendant to be entitled to the same credits as if initially sentenced to life imprisonment." State v. Funicello, supra, p. 68.
Trantino's counsel indicated in effect during the argument on the Funicello remand that, even if we should decide as we ultimately did as to the death penalty, he still desired to press the post-conviction relief claims. One of those claims was that the jury had not been selected in accordance with Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2 d 776 (1968) (decided after the trial in the instant case). As we pointed out in Funicello (60 N.J. p. 67), that issue falls away with the invalidity of the death penalty.*fn1
We have carefully considered all of defendant's other points and find that none of them warrant post-conviction relief. Little discussion is required. The context of the murder trial and the present application should first be briefly outlined. Defendant and one Falco committed a robbery in Brooklyn. Thereafter they repaired, with several companions, to a tavern in Lodi, New Jersey. Two local police officers came to the tavern to investigate a report that some shots had been fired inside the place. In the course of their investigation, they demanded proof of identification of the patrons and discovered a revolver concealed in the premises. The officers were then ruthlessly shot and killed. More detail will be found in our first opinion, 44 N.J. at 361-363. The state's evidence, through testimony of eyewitnesses, as well as of admissions subsequently made by defendant, demonstrated that defendant fired the fatal shots and apparently did so in an attempt to prevent the arrest of Falco, who was
wanted for murder in New York. The two fled to New York City. Falco was later killed by police there in resisting arrest; defendant surrendered after that event.
The state's theory was premeditated murder. Defendant's testimony was that he had no recollection of the slayings, beyond recalling a loud explosion and a confusion of wild sound and light. He sought to attribute this lack of recollection to prior consumption of a considerable quantity of liquor and two dexedrine pills. It is a fair characterization of the defense, which was presented by an able and experienced lawyer, to say that it was penalty oriented -- to avoid the death penalty, either by a jury recommendation of life imprisonment or by a conviction for second degree murder on the thesis that his physical and mental condition was such that the necessary first degree elements of premeditation, deliberation and wilfulness was not present.
The scope of our post-conviction relief proceeding is governed by present R. 3:22-2, -3, -4 and -5 (formerly R.R. 3:10A-2, -3, -4 and -5, in effect at the time of this application) and is subject to two fundamental principles, aptly summarized in State v. (Edgar) Smith, 43 N.J. 67, 74 (1964), cert. denied 379 U.S. 1005, 85 S. Ct. 731, 13 L. Ed. 2 d 706 (1965), rehearing denied 380 U.S. 938, 85 S. Ct. 945, 13 L. Ed. 2 d 826 (1965):
It may be added that denial of fundamental fairness in a constitutional sense, so as to warrant consideration in such a proceeding, is not established by the mere characterization of a claim ...