Matthews, Lora and Morgan. The opinion of the court was delivered by Morgan, J.A.D.
Convicted by jury verdict of murder in the first degree, defendant appeals contending that (1) his motion for a foreign jury was improperly denied; (2) his statement was erroneously admitted into evidence; (3) the trial court improperly refused to permit jury consideration of the voluntariness of his statement; (4) the trial judge erred in allowing cross-examination into the collateral issue of defendant's employment, and (5) a mistrial should have been granted on the ground of prosecutorial misconduct regarding defendant's prior conviction. Particular emphasis is given to asserted errors in the court's charge, supplemental charges in response to jury questions, and refusal to charge as requested concerning presence at the scene of the crime. Finally, defendant contends that the trial judge erroneously refused to grant a post-trial examination of the jurors following a telephone call from one of them regarding possible misunderstanding of the law governing the case.
During the early evening hours of September 12, 1973 one Frank Jennette shot and killed Officer Casper Buonocore from the rooftop of 49 Armstrong Avenue in Jersey City. It was at all times undisputed that Buonocore was in uniform and in the performance of his duties when he was killed. The events which terminated in this tragic occurrence commenced innocently with the ticketing of a doubleparked car in the area of the crime. The driver of the vehicle, one Sam Williams, was arrested when a radio check revealed an outstanding motor vehicle warrant for him.
Williams' daughter, 13 years of age, intervened in an apparent attempt to prevent her father's arrest and struck one of the arresting officers. When the patrol car arrived to transport Williams to the police station, the daughter was also placed under arrest for assault. When she renewed her attack she was struck by another officer and rendered unconscious. Officer Buonocore, who had neither arrested the father nor struck the daughter, summoned an ambulance and rendered first aid to the girl. Eventually, the father was transported to the police station and the daughter removed in the ambulance. Buonocore and his partner were then instructed to resume their normal patrol duties and were departing the scene on their motorcycles when Buonocore was felled by the fatal shot.
Defendant and two other young men, Frank Jennette and David Cheatham, were arrested in the neighboring building and taken to the Fifth Precinct. The State conceded that Jennette had fired the fatal shot; later he pleaded guilty to the charge. Cheatham and defendant were charged as aiders and abettors. Defendant's conviction rested largely on some inculpatory matter in his own statement. In it he admitted both seeing Jennette with the gun earlier in the evening while with him in a neighborhood bar and, after the incident in which the young girl was rendered unconscious, responding to Jennette's invitation to go up on the roof "to shoot the police." When asked why he went up on the roof with Jennette defendant responded that he did not know. Notwithstanding, defendant asserted in the statement that he was not on the roof with Jennette and Cheatham at the time the shot was fired. At trial defendant denied the truth of the inculpatory portions of his statement, contending that he did not see Jennette's gun until they were on the roof, was unaware of Jennette's intention to shoot a police officer, and that as soon as he became aware of that intention he fled the roof.
The State adduced no direct evidence that defendant was on the roof at the time the fatal shot was fired. It argues
that his presence there as an aider and abettor of the murder was reasonably inferable from the fact of his friendship with Jennette, knowledge of Jennette's intentions to "shoot the police" and the latter's possession of a gun with which to achieve this purpose, together with his admission that with such knowledge he accompanied Jennette to the roof. Accordingly, the State properly contends, the jury was entitled to disbelieve that portion of defendant's statement and testimony that he left the roof before the actual shooting occurred.
We deal first with defendant's several claims of prejudicial error concerning the charge. Its essential design was to inform the jury of principles applicable to two alternative findings of fact: one, that the victim when killed was a police officer in the performance of his duties, and the other, that he was not. Hence, the trial judge first explained the concept of murder in its two degrees of culpability, the presumed conclusion of murder in the second degree, and the enhanced culpability, designated murder in the first degree, on a finding of design and premeditation. The appropriate statutes were read to the jury. These principles, explained the judge, were applicable in the event the jury concluded that Buonocore was not a police officer in the performance of his duties when killed. Although the accuracy of the explanation itself is not impugned, the necessity and propriety of the instruction was the subject of a defense objection after the conclusion of the charge.
The trial judge next informed the jury of the principles applicable in the event they found that Buonocore was a police officer in the performance of his duties. They were told that a verdict of first degree murder required a finding of an intent to kill; a finding of premeditation and design was unnecessary. If the intent was not to kill, but to inflict any harm, no matter how grievous, the proper verdict for
murder of a police officer would be second degree murder. State v. Madden , 61 N.J. 377 (1972).
Since defendant was charged with being an aider and abettor, the judge properly instructed the jury as to the principles applicable to determining defendant's status as such. N.J.S.A. 2A:85-14. They were advised that the degree of an aider and abettor's culpability must be determined with respect to that person's own intent, again in accord with State v. Madden, supra , and referred the jury back to the portion of the charge dealing with the quality of intent essential to the degree of murder being considered. The evidential impact of presence at the scene of the murder, if found, was explained in the following terms:
In addition, while mere presence at the scene of the perpetration of a crime does not render a person a participant in it, proof that one is present at the scene of the commission of a crime without disapproving or opposing it is evidence from which, in connection with other circumstances, it is competent for you members of the jury to infer that he assented thereto, lent to it his countenance and approval and was thereby aiding and abetting same. It depends upon the totality of the circumstances as those circumstances appear from the evidence.
The judge advised the jury that if the actual perpetrator of the murder was armed in its commission, then defendant could be held for murder while armed, if found to be an aider and abettor.
Finally, the judge advised the jury of the five possible verdicts which could be returned: (1) acquittal, (2) murder in the first degree while armed, (3) murder in the first degree while not armed, (4) murder in the second degree while armed, and (5) murder in the second degree while not armed. The judge properly chose not to charge manslaughter. No verdict form was given to the jury.
After extended deliberation following a series of questions asked of the trial judge, about which more later, the jury returned with a verdict of murder in the first degree while not armed, thus adopting the third alternative above.
Defendant's first objection to the charge, argued to the trial judge and now to us, concerns the instructions pertaining to the two degrees of murder of a non-police victim. Defendant notes the uncontradicted evidence that Buonocore was a police officer and was acting as such at the time he was murdered. No genuine issue as to that status was therefore created and, defendant argues, giving instructions concerning a finding unsupported by the evidence served only to confuse the jury as to the principles applicable to the genuine issues in the case they were to consider. The question raised by defendant is not free from difficulty. The charge as to degree of culpability and the quality of intent necessary to a conviction for second and first degree murder of a non-police victim imposes a heavier burden on the State since, with respect to such victim, the State must prove design and premeditation as well as intent to kill or do serious bodily harm, in order to obtain a first degree conviction. With respect to a police victim, the State need only prove intent to kill. State v. Madden, supra. Hence, defendant is in a poor position to contend that providing the jury with such an alternative prejudiced his cause.
On the other hand, considerable merit inheres in defendant's contention that, in the absence of evidence that Buonocore was not a police officer at the time he was killed, a charge relating to that evidentially unsupported status carried the potential for jury confusion. The charge, as given, required the jury, on a single hearing, to retain in its collective mind the required quality of intent for second degree and that for first degree murder of a non-police officer, as well as those intents appropriate to a finding of first and second degree murder of a police officer. Such difficult intellectual feats of memory should not be unnecessarily imposed ...