For affirmance -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall, Schettino and Mountain. For reversal -- None. The opinion of the Court was delivered by Hall, J.
The defendant was convicted in 1970 in the Passaic County Court of first degree murder based on a killing during an attempted robbery. N.J.S.A. 2A:113-2. The State sought the death penalty. The jury made no recommendation of life imprisonment, so a sentence of death was necessarily imposed. N.J.S.A. 2A:113-4. His appeal was taken to this court as of right. R. 2:2-1(a)(3).
Subsequent to the oral argument of the appeal, this court decided State v. Funicello, 60 N.J. 60 (1972), following the memorandum decision of the United States Supreme Court in Funicello v. New Jersey, 403 U.S. 948, 91 S. Ct. 2278, 29 L. Ed. 2 d 859 (1971). We there concluded that the United States Supreme Court had held that the death penalty was unconstitutional under our statute, N.J.S.A. 2A:113-3 and 4. Accordingly, we set it aside as to that defendant and all others similarly sentenced who were parties to that cause, and sentenced them to life imprisonment, nunc pro tunc as of the date the death sentence was initially imposed, with entitlement to the same credits as if initially sentenced to life imprisonment. We also said that a like order would be made on motion before us or in the trial court by all other defendants now under a sentence of death. Pursuant thereto defendant Farrow made a motion before us for that relief, which was granted on February 1, 1972. As a result, what was briefed and argued -- and indeed tried -- as a capital case is no longer that. Defendant's points attacking the validity of the death penalty, the selection of the jury pursuant to the requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2 d 776 (1968), and related matters have become moot.*fn1
The State's proofs establishing the commission of the crime were not contested at the trial. The real question was whether defendant was one of the participants. The evidence to implicate him was of three principal kinds: pre-crime conduct, identification of him as one observed fleeing the scene, and certain post-crime conduct, together with some incriminating physical evidence. The case was peculiarly one for jury evaluation of the credibility of the State's principal witnesses. If they were believed, as the verdict indicates they must have been, the web of proof of guilt approached the overwhelming. No claim is made that the verdict is against the weight of the evidence. Defendant did not take the stand. His defense was an alibi and his proofs were not strong. Testimony was presented by third persons that during at least a part of the evening in question he, who lived in the general area, was in attendance at a fashion show held in a tavern three blocks from the scene of the crime.
The major contentions in defendant's brief and oral argument, aside from the death penalty points previously mentioned, claimed that identification evidence was admitted in violation of the exclusionary rule laid down in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2 d 1149 (1967), and related cases, and of the requirement of Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2 d 1199 (1967), that police procedure with respect to an out-of-court identification must not be so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. At the time of oral argument there was pending before the United States Supreme Court a case involving the limits of the Wade rule, and we deemed it advisable to defer decision of this appeal until that court had spoken. The decision in the case referred to has recently been handed down, Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32
L. Ed. 2 d 411 (1972), followed by our own decision in State v. Earle, 60 N.J. 550 (1972), which will be mentioned more fully in our discussion of the identification issues. It is enough at this point to say that by reason of those decisions, several of defendant's arguments concerning the identification procedures have also fallen away.
We turn to a summary of the pertinent evidence. It should be noted at the outset that defendant was not charged with the crime until the indictment was returned on February 4, 1969; his arrest followed shortly after that date. Much of the evidence introduced by the State was not known to it until months after the offense.
Isadore Herman and his wife, both 82 years of age, ran a grocery store on Monroe Street in Passaic. They lived in an apartment above the store, which was entered from Grove Street near its intersection with Monroe. It was their custom to take the day's receipts to the apartment when they closed the store in the early evening. It was also Mrs. Herman's habit thereafter to put the garbage outside. On March 14, 1968, while she was engaged in that chore at about 8:45 P.M., two armed men barged into the apartment. One was black and one white. (Defendant is black; no one else has ever been charged with the crime.)
A scuffle ensued, during which the intruders fired a number of shots. Six struck Mr. Herman, killing him. These were found to have come from a S & W 38 caliber revolver. Mrs. Herman was wounded by three shots. She immediately went into a state of shock and was never able to meaningfully assist the police with helpful descriptions of the men or to clearly identify anyone. The bandits fled without the store receipts, which were in a bag on a table, as was a knife. In their flight they left outside the apartment door a badge case
containing an imitation gold police badge and at the foot of the stairs a brown hat containing a haberdasher's name.
The evidence of pre-crime conduct of the defendant commenced with the testimony of Paul Shaver, an FBI confidential informant, and James R. Laughlin, in charge of that agency's Paterson office. Their testimony also raised the first of the identification issues urged by defendant.
Shaver, in a Wade type hearing out of the presence of the jury (similar voir dire hearings were also held as to the other identification witnesses), testified that on the afternoon of February 24, 1968, he, along with James Mohan, went to a tavern in Passaic where they met an acquaintance, "Bobby" McCallum and another man called "Sonny," whom he did not previously know. The four were together in the tavern and a car for a half hour or so. He made an in-court identification of defendant as looking like "Sonny," although he had changed somewhat in appearance. (Defendant's nickname is "Sonny.") The day after the murder he sought out Laughlin, who later showed him a picture of defendant and told him it was that of "Sonny" Farrow. He told Laughlin the photo (a police shot taken about four years earlier) looked like the "Sonny" he had met on February 24. The trial judge ruled that, under all the circumstances, the photographic identification was not so impermissibly suggestive as to preclude its admissibility, that the in-court identification was not tainted, and that the weight of both was for jury determination.
Shaver's testimony as to the events of February 24 was much more extensive when he testified before the jury. (He repeated his in-court identification of defendant.) That testimony dealt with a stakeout of the Herman premises. They were only in the bar a few minutes. "Sonny" asked to be driven to the other side of town. Shaver drove, with Mohan in the front seat and "Sonny" and McCallum in the back seat. He was directed by "Sonny" to Grove Street, where they parked for 10 minutes or so near the entrance to the Herman apartment. "Sonny" talked about robbing the
Hermans, saying that they had a lot of money upstairs; that he had been watching the place; that it could not be burglarized; that "four guys have to rob them"; and that the Hermans would fight rather than give up their money. Shaver said he did not want to participate but might let "Sonny" use his car. While they were parked, Mrs. Herman came downstairs to put out garbage; "Sonny" identified her to the others. Shaver also testified that while the four were talking, "Sonny" was flipping a toy police badge in his hand, which he said was "just like" the one previously referred to as having been found at the scene after the killing. When they noticed they were being observed by a man in a garage window across the street, they left. Shaver also related to the jury his contact with Laughlin the day after the killing and his identification of the photograph Laughlin produced. He said he made the contact because he feared he might be suspected if the surveillance had been observed and reported.*fn2
Agent Laughlin's testimony before the jury was confined largely to corroboration of Shaver's identification of the photograph of defendant. He said he discussed with the Passaic police department the facts he had obtained from Shaver*fn3 (but, in accordance with agency policy, without disclosing the name of his informant or of the others mentioned by Shaver), received the photograph and thereafter reported to the police that Shaver had identified it as that of "Sonny." His testimony on the voir dire of what Shaver had told him about the stakeout was ruled hearsay and inadmissible before the jury.
The witness William ("Bobby") McCallum, a friend of defendant's of several years' standing, testified that he was with defendant, Shaver and Mohan*fn4 in the car at the stakeout and substantially corroborated Shaver's story of what took place at that time. He said that Mohan was also interested in robbing the Hermans, but that he told defendant he wanted no part of it. (McCallum also had a criminal record and in fact was in jail for the Wallington robbery (see footnote (3)) at the time of the crime; his knowledge also did not become available to the State until some months after the offense.)
The final witness who testified as to defendant's pre-crime conduct was Eugene Edwards, a friend of defendant's (who also had a criminal record and whose testimony was not known to the police until long after the killing). Edwards said defendant told him the day before the crime that "he ought to have a nice piece of money tomorrow night." He also testified that in March 1968 defendant had a S & W 38 caliber revolver and had shown it to the witness.
The evidence identifying defendant as one of two men leaving the Hermans' apartment came from two neighborhood youths, Lamonte Stallings, age 16, and Fernando Rojas, age 14. Both testified on voir dire and then repeated before the jury that part of their testimony found to be admissible. Their stories were substantially the same, but Stallings gave fuller descriptions of the men. (Throughout his identifications were more precise and positive than those of Rojas.) On the evening of March 14 they were walking on the street near the Herman store, when they heard the sound of breaking glass and shots. As they approached the stairway entrance to the Hermans' living quarters, two men came hurriedly down the steps. The first was a white man with a stocking over his head. The second was black, wearing a hat. Both of the boys saw his face, visible by the light from a nearby street light. Stallings described his features in some
detail. (There was considerable interrogation of all the identification witnesses about the extent of hair and other marks on defendant's face during the period in question; taken as a whole, the testimony thereon was not conclusive.) The men went up the street and shortly a car, which had been double-parked within the block, pulled away speedily. Defendant does not contend that this evidence was improperly admitted. Both also made in-court identifications of defendant on the voir dire. That of Stallings was held admissible and repeated before the jury; Rojas' was found inadmissible and was not heard by the jury.
Photographic and in-person identifications were later made by the boys, which form defendant's principal contentions of error. The day after the event, March 15, Stallings told his high school guidance counselor what he had seen and asked what he ought to do. As a result, Stallings went to police headquarters that afternoon and, in the company of Detective Jacalone, examined volumes of police "mug-shots." He picked out the photo of a man named ...