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 Mountain, J. Francis, J. (concurring and dissenting). Francis, J., concurs and dissents.
[60 NJ Page 454] Defendant was convicted of murder in the first degree. The jury having failed to recommend life imprisonment, N.J.S.A. 2A:113-4, the death sentence was
imposed and an appeal taken to this Court as of right. R. 2:2-1(a). A week after oral argument in this case, we handed down our opinion in State v. Funicello, 60 N.J. 60 (1972), wherein we concluded that the United States Supreme Court had declared the death penalty to be unconstitutional under our statute, last cited. The opinion directed that as to defendant, Funicello, the sentence of death, which had been imposed by the trial court, be set aside and that he be instead sentenced to life imprisonment, nunc pro tunc, as of the date sentence was initially imposed, but to remain entitled to the same credits as if the original sentence had been one of life imprisonment. The opinion went on to provide that a like order be entered with respect to all other defendants then under sentence of death. On February 29, 1972 such an order was entered with respect to this defendant, Wilkerson. Accordingly it is unnecessary to consider such of appellant's arguments as are directed to the alleged impropriety of his original sentence.
We turn, then, to other grounds upon which reversal is sought. The circumstances of the crime must be briefly recounted. As we state them here they rest upon such of the testimony in the record as presumably was accepted by the jury as being true. Defendant, who testified on his own behalf, denied practically everything upon which the State relied, insisting that he had been improperly arrested and brutally beaten by the police. No one else testified on his behalf and quite obviously his version of what occurred was not credited by the jury.
Acting in concert with four other men, defendant robbed the Bayway Circle Branch of the National State Bank in Elizabeth, New Jersey, on the morning of August 8, 1969. In the course of the robbery George Paszkowski, a corrections officer from Yardville Youth Reception Correction Center was killed by a shot fired by one of the robbers. Indictments for murder were thereafter returned against defendant and the other alleged participants. The State proceeded upon
the thesis of felony murder: a death caused in the commission of an armed robbery. N.J.S.A. 2A:113-1 and 2.
On the morning in question defendant and his colleagues drove to the bank in a stolen car, arriving shortly after nine o'clock. They wore masks and although some were armed, defendant apparently was not. Leaving the driver in the car, four of the band -- including defendant -- entered the bank. By coincidence a car from the Yardville Reception Center was passing the bank at this moment and one of the guards in the car saw what was taking place. The vehicle stopped and three guards alighted and started to move toward the bank. The driver of the getaway car, upon seeing them approach, fired and hit Paszkowski. He died from the wound later that morning. The other guards returned the fire. Hearing the shooting, the four robbers in the bank took alarm -- but not before they had collected about $26,000 -- and issued forth protecting themselves by propelling before them, as hostages, several innocent bystanders who unfortunately happened to be present. This maneuver interdicted the officers' fire and facilitated escape. In the course of its flight the getaway car collided with another moving vehicle and also hit a telephone pole, but eventually drew abreast of a second car -- later found to have been registered in defendant's name -- which had been stationed there earlier that morning. The thieves abandoned the stolen car and set out in defendant's vehicle, meanwhile firing indiscriminately at various passers-by who may have indicated a disposition to apprehend the bandits or impede their escape. Fortunately no one was hit. Except that immediately thereafter they were seen to pass through a red light and strike a parked car, no particulars are known as to their further flight, which ended on Irvington Avenue in Hillside where the automobile was found with a flat tire. Apparently at this point the second car was abandoned and the group set out on foot.
At about 9:30 the same morning, Arthur Franklin, a landscape gardener who was working in the neighborhood,
was accosted by one of a group of four or five men, who asked him if he had a car. Upon his replying in the negative, they passed on.
Very shortly thereafter, Clifford Owens, a truck driver, was asked by a man whom he later identified as the defendant to drive him from Elizabeth to Newark. Owens at first agreed, but shortly after they had started out he realized he did not have time to complete the trip and let defendant off somewhat short of his destination, at the same time supplying him with carfare.
About eleven o'clock of the same morning four members of the Elizabeth Police Department saw Wilkerson in Hillside not far from the site of the second abandoned car, driving a tan Pontiac and making what were described as "furtive movements." He was stopped and asked for evidence of ownership. He produced a certificate of registration in the name of Marvin Mittleton and identified himself as Mittleton. It so happened that the police had already found, in the abandoned getaway car, some document or paper upon which the name, Marvin Mittleton, appeared. Accordingly, when defendant gave this as his name he was at once placed under arrest for armed robbery and was informed of his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Shortly thereafter the arresting officers learned that Paszkowski had died and Wilkerson was told that was was now under arrest for murder. He replied, "I didn't kill that man." Parenthetically, as Wilkerson's later confession makes clear, he had made his way from the site of the second abandoned vehicle in Hillside to the place in Elizabeth where he ...