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State v. Sims

Decided: March 8, 1976.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT SIMS, ROBERT JAMES BROWN AND MICHAEL HIGHTOWER, DEFENDANTS-APPELLANTS



Lynch, Larner and Horn. The opinion of the court was delivered by Lynch, P.J.A.D.

Lynch

Defendants appeal from their convictions, following a consolidated trial, for several crimes which arose out of an incident wherein Police Officers Donald Alexander and John Walsh of the Trenton Police Department were shot but, fortunately, did not die.

Defendants Sims and Hightower were found guilty of attempted murder and atrocious assault and battery on Officer Walsh, of aiding and abetting the attempted murder and atrocious assault and battery on Officer Alexander, of being armed while committing the assaults and of carrying a weapon without a permit. Defendant Brown was convicted of attempted murder and atrocious assault and battery on Officer Alexander, of aiding and abetting the attempted murder and atrocious assault and battery on Officer Walsh, of being armed during the assaults and of carrying a weapon without a permit.

In overlong briefs (totaling more than 300 pages) defendants raise some 30 points, with subdivisions in several.

To recite all the contentions would serve only to inundate the central issues which are worthy of note. In the interest of concentrating on the latter, we have concluded that discussion of the following issues suffices for effective consideration of the appeals:

I. Should the convictions of defendants Sims and Hightower be reversed because of the prejudicial effect of the admission into evidence of a redacted confession by defendant Brown which assertedly implicated Sims and Hightower in the commission of the crimes?

II. Did the trial judge commit reversible error when it refused to interrogate prospective jurors about possible racial prejudice in a context of charges that defendants, all of whom are black, shot two white policemen?

III. Was the charge as to the crime of aiding and abetting erroneous?

IV. Was the prosecutor's summation prejudicially improper and beyond the limits of fair comment?

Defendants also contend that their convictions for atrocious assault and battery merge with their convictions for attempted murder. The State concedes such merger is appropriate and we agree. Therefore no further comment will be made on that issue.

I

The prejudicial effect (as against defendants Sims and Hightower) of the admission of the redacted confession of defendant Brown

The indictments of all three defendants were consolidated for trial over the objections of defendants.

Defendant Brown had given the police the statement referred to above in which he had named defendants Sims and Hightower as participants in the crime. Under Bruton v. United States , 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), an extra-judicial confession of a defendant which implicates a codefendant is inadmissible in a consolidated

trial. In an attempt to avoid that problem here the trial judge edited Brown's statement by striking from it the names of Sims and Hightower and, in each instance where those names appeared, substituting the word "blank." As so edited and permitted in evidence, Brown's confession read in relevant part:

Well, me, blank and blank, were coming through the alley that runs from Spring Street to Passaic Street, and we walked down Passaic Street towards Camden Street and we saw this man walking towards us and blank said to blank and me, "What are you going to do?" and at this time a patrol car pulled up and asked for identification. And blank went to the driver's side of the patrol car and he pretended to pull his wallet from his back pocket when the officer seen the gun in blank's belt then the officer on the passenger side of the car pulled his gun and they started shooting. Then blank pulled his gun and he started shooting at the police and I got scared and start running up the alley alongside the canal. I had a .22 caliber automatic but I didn't pull it, and it only had four bullets in it. I was running up Hanover Street towards town when blank, who was behind me, hollered to me, and when I looked I saw blank running behind blank. We all ran to the parking lot behind Wilkenson Place and I saw Junie Wilkins sitting in the car. I think it was a brown Duster. He was with three other fellows in the car and they were parked on Wilkenson Place near Willow Street. I went up to Wilkins who was sitting on the passenger side of the car. I know Wilkins for a long time. Then blank and blank handed me their guns and I passed all the guns to Wilkins and he said, "What's this for?" and I told him to take them. He said okay and they drove away. We then split up and I went to Soul Birds on Hanover Street.

Question: Mr. Brown, can you describe the clothing worn by Blank and Blank on the night of the above offense?

Answer: Yes, Blank had a brown corduroy coat and dark brown pants and he also had on a big soft cap; it was a dark one.

The New Jersey rule regarding the use of confessions of codefendants was set down in State v. Young , 46 N.J. 152 (1965). That case involved a confession by a codefendant (Williams) which implicated defendant Young by name. The Supreme Court reversed Young's conviction. The court noted that Williams' extra-judicial ...


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