Michels, Morgan and Kentz. The opinion of the court was delivered by Morgan, J.A.D.
In January 1963 the Union County grand jury, in two separate indictments, charged Ralph X. Davis, then in custody, with the murder of two persons. Indictment No. 185-J-62 accused him of murdering one Leon Hanjian, a rug merchant in Elizabeth, on January 25, 1963, and Indictment No. 186-J-62, the one with which this appeal is concerned, charged him with the murder of one Joseph Holden, an Elizabeth taxicab driver, during the early morning hours of January 23 or 24, 1963. The Hanjian indictment (185) was tried first and, following a conviction obtained on December 16, 1963, a sentence of death was imposed. That conviction was reversed on appeal and, following retrial which resulted in another conviction, the death sentence was again imposed in November 1965. For the next several years defendant fought unceasingly in both the state and federal courts against his own extinction. Nothing occurred with respect to Indictment 186 (the Holden murder and the indictment with which we are here concerned) because in 1964, during the pendency of the appeal proceedings with respect to Indictment 185, the State, upon an ex parte application, succeeded in having Indictment 186 placed on the inactive list where it apparently languished, forgotten by the State, until the case of State v. Funicello, 60 N.J. 60 (1972), cert. den. 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972), was decided on January 17, 1972. Funicello declared the unconstitutionality of the death penalty and mandated remission of all pending death sentences to life imprisonment to be imposed, nunc pro tunc, as of the date sentence was initially imposed. Accordingly, defendant's death sentence on the Hanjian conviction was commuted to life imprisonment to run from the date of his sentence on November 18, 1965, with all credits to which he would have been entitled had he been originally so sentenced.
Even after Funicello was decided, the State took no action with respect to the inactive Indictment 186. Rather it
was defendant's counsel, who on November 3, 1972, reactivated the case by filing a motion for discovery. On May 25, 1973 substituted counsel moved for dismissal of that indictment on the ground that a trial held approximately 11 years after return of the indictment would violate defendant's state and federally guaranteed constitutional rights to a speedy trial. U.S. Const., Amend. VI ; N.J. Const. (1947), Art. I, Par. 10. Following a hearing directed to the speedy trial issue, during which extensive testimony was taken, the trial court denied defendant's motion to dismiss. Pursuant to leave granted, defendant appeals from this interlocutory order.
At the hearing below, the chronology of events already recited was regarded as being without any dispute. The State admitted to the trial court, as it did to this court on oral argument, that it made no effort to bring Indictment 186 to trial because it was of the view that no purpose would be served by such a trial in light of the death penalty already imposed with respect to the companion indictment. It was for this reason that the State obtained the ex parte order placing the indictment on the inactive list, where it remained until reactivated by defendant's motion for discovery.
In an effort to establish that demands for trial were made during the years 1964, 1965, 1968 and 1969, defendant testified that he wrote several letters to the Union County Prosecutor requesting trial of Indictment 186. Although he retained copies of these letters, the copies had been lost in June of 1972 during his transfer from one institution to another, and a prison official, one Sergeant Masters, testified that defendant did make a claim for property lost during such a transfer. Several fellow inmates produced at the hearing testified that they had observed and had helped defendant write some of these letters. No letters from Davis were found on file with the prosecutor's office. The chief clerk's testimony as to the routine followed in handling inmate mail was offered for the purpose
of discrediting defendant's assertions that such letters had been sent.
Defendant testified that two persons, now deceased, the Reverend and Mr. Fauntleroy, would have been able to provide him with an alibi for the Holden murder since he now claims he was in their company for most of the period of time during which the murder could have been committed. The State, however, produced a statement taken from defendant shortly after his arrest for both murders in which he made no mention of these two persons as possible alibi witnesses. No notice of alibi was served upon the prosecutor's office because, as testified to by Mr. Abrams, counsel assigned for both indictments, no one cared about the fate of Indictment 186 after the death penalty had been imposed upon Indictment 185, and no steps were therefore taken to prepare the matter for a trial which all believed would never take place.
At oral argument, and upon request from this court, the State outlined in brief the evidence it intended to produce at the proposed trial of Indictment 186. The State's case would be circumstantial in nature. No one witnessed Holden's murder. According to the State, the bullet which killed him came from the same gun which killed Hanjian approximately two days later and which was found in defendant's possession after the Hanjian murder, and a ballistics report will be offered by the State in support of this contention. Holden was a cab driver and his change dispenser was found missing when his body was discovered. The State intends to produce an employee of a dry cleaning establishment who allegedly will testify that about the time of the murder defendant paid for dry cleaning with substantial amounts of change. Defendant lived on the same block where Holden's body was discovered still in his cab. The State also indicated that it intends to produce evidence of the Hanjian murder and defendant's conviction thereof as establishing a common scheme or plan because Hanjian and Holden were killed within days of each other and in
the same manner, with a bullet fired into the back of the head at point blank range.
It is undisputed that the bullet which killed Holden is missing and has been missing for several years. Defendant contends that because the bullet is lost, he is now foreclosed from having it examined by his own ballistics expert in order to possibly dispute the fact basic to the State's case that it was fired by the gun which killed Hanjian. The report of defendant's expert submitted to this court suggests that the expert can utilize the photographs of the bullet taken by the State, although it emphasizes that photographs are certainly less preferable than having the bullet itself.
The trial judge denied defendant's motion to dismiss Indictment 186. After applying the balancing test described in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), he concluded that although the delay between indictment and proposed trial was extraordinarily long, the reason given by the State in explanation for the delay was a fully sufficient and reasonable one. He declined to believe defendant's testimony that he had demanded trial by writing letters to the prosecutor and found that no such demands had been made by defendant prior to the filing of the present motion to dismiss. The judge further disbelieved defendant's testimony that the two deceased Fauntleroys would have testified that he was with them during the time Holden could have been murdered. No mention was made of the missing bullet.
After careful consideration of this difficult and unfortunate case, we are firmly of the view that trial of an indictment 11 or 12 years*fn* after its return constitutes, in the circumstances here presented, a clear violation of the defendant's
federally and state guaranteed right to a speedy trial. Although the speed with which a trial must follow an indictment's return is regarded as being relative to the circumstances in which a claim of unconstitutional delay has been asserted, there comes a point at which delay extended for an extraordinary length of time so weights the scale ...