Handler, Meanor and Kole. The opinion of the court was delivered by Handler, J.A.D.
Defendant was indicted for armed robbery and murder. He was found guilty by a jury of felony murder and sentenced to life imprisonment. Because the trial court charged the jury only on felony murder and did not permit it to consider second degree murder or manslaughter, defendant now claims this constituted plain error requiring a reversal.
The murder of Robert Bradley was unwitnessed. The evidence that the murder was perpetrated in the course of a felony was wholly circumstantial.
Patrolman Robert G. Boyle of the Jersey City Police was the first police officer to arrive on the scene of the murder. On January 30, 1972, at 2:28 A.M., he responded to a call to go to the corner of Fairview and Bergen Streets. Boyle and his partner found Bradley lying face down on the sidewalk still alive and breathing heavily. The body was pointed out to Boyle by the only person present, Fred Hess, who had called the police. On close examination it was noticed that the victim was bleeding from the back of the head and it was suspected that he had been shot. Lying in the vicinity of the body was a register for a check book, a button from the victim's jacket, the back of a watch, a key ring, a plastic bottle of glyoxide and some miscellaneous papers. The victim also had 45 cents in change in his pocket. Boyle also testified that the victim's car was found parked approximately two blocks away.
Bradley's brother and mother testified that Bradley carried a black leather wallet and always wore a wrist watch and that he owned a 1968 blue Cadillac. A jacket which he had been wearing was identified and they recognized some shirts which he had been carrying at the time of his death. Another witness testified that he had seen Bradley earlier,
at approximately noontime on January 29, 1972, and he had observed the wallet. He also identified the jacket. The bartender at Ilvento's Bar and Restaurant testified that Bradley came into the premises at 2 P.M. (of January 29) and that he was carrying several shirts on a hanger. He consumed several cokes and when the witness finished work at 9 P.M. Bradley drove him home. The manager of the bar stated that Bradley returned about a half-hour later and stayed until closing at 2 A.M.
The evidence, which pointed to defendant as the murderer, was also circumstantial but nevertheless convincing. An autopsy was performed on decedent and it was established that the cause of death was a gunshot wound of the brain and skull with a right subdural hematoma. The doctor testified that he thought the man was shot from an angle which was lower than the position of his head.
Oliver Booker testified that he was an acquaintance of defendant and that sometime around January 23, 1972 he met defendant who asked where he could obtain some .32 bullets. After first denying that he had any, Booker took defendant to his apartment and gave him five bullets from a box which he had purchased in Alabama some two years earlier. Booker said that he turned over to the police the box containing the remaining .32 bullets. He was shown four bullets which had been recovered from the gun found on the defendant when he was arrested and stated that they were similar to the bullets he gave to defendant and turned over to the prosecutor's office.
Detective Anthony Villaneuva testified that he was working the four to midnight shift on February 2, 1972. On his way to work he saw defendant exiting from Chet's Bar. He stopped his car, approached defendant and called for him to stop. He then patted him down, finding a .32 revolver tucked into his waistband. Detective George Russell testified that he was working on the four to twelve tour on February 2 when defendant was brought in. He gave the Miranda warnings and defendant chose not to speak. Later he changed his mind and
admitted the gun was his and that he had purchased it from a person, whose name he didn't know, on January 23, 1972.
State Police Sgt. John Linott testified that he test-fired the gun taken from defendant with one of the bullets obtained from Booker, which was compared with the one taken from the victim. Linott stated that it was his belief that the bullet removed from Bradley's brain had been fired from defendant's gun to "the exclusion of all others."
After the denial of a motion for dismissal, defendant produced three alibi witnesses who stated they had been with defendant at an anniversary party for his parents on the evening of the crime but ...