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State v. Polk

Decided: April 28, 1977.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT POLK, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Fritz, Ard and Pressler.

Per Curiam

Defendant was tried by a jury and convicted of first degree murder of Marcella Bonnie Melvins and atrocious assault and battery against Sharod Melvins.

He appeals the murder conviction and asserts:

I. The trial judge committed plain error by not instructing the jury that voluntary intoxication can operate to reduce the degree of culpability from first to second degree murder.

II. The judge erred in denying defense counsel's request for an adjournment to have defendant examined by a psychiatrist.

III. The admission into evidence of S-23, a photograph of decedent, constituted reversible error.

IV. The prosecutor's comments in summation equating provocation with justifiable homicide constituted reversible error.

V. The imposition of a mandatory life sentence violates the Fifth and Sixth Amendment rights of defendant.

VI. The entire trial was so infected with error as to mandate a finding that defendant did not receive a fair trial.

The facts pertinent to the issue of intoxication are essentially undisputed. On the morning of the day of the killing, defendant and Leon Jones decided not to go to work and began drinking beer at the Jones' residence at about 9 A.M. Just prior to arriving at the Jones' residence defendant and an unidentified young lady shared a marijuana cigarette. The remainder of the morning was spent at various residences

drinking beer and wine. The record is not precise as to the exact amount of alcoholic beverages consumed by defendant; however, unquestionably, it was substantial. An indication of how much was consumed is found in the testimony of Dr. Raymond Schiffman who performed the autopsy on the deceased. He testified the blood alcohol concentration was 0.158, indicating she was definitely intoxicated. Obviously the amount of alcohol consumed by decedent is not conclusive proof of defendant's consumption; ...


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