On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Hughes and Justices Mountain, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Pashman, J. Clifford, J., concurring. Clifford, J., concurring in the result.
[76 NJ Page 348] This multi-faceted appeal involves several important issues. The Court must decide whether the failure to include the instructions mandated by State v. Madden, 61 N.J. 377 (1972), in supplemental jury charges provided in response to a jury's questions concerning the proper interpretation of N.J.S.A. 2A:113-2 constitutes reversible error. We must also examine the effect of certain forensic improprieties committed by the prosecutor during cross-examination involving inquiry into a prior conviction and a reference to defendant's alleged heroin addiction. Furthermore, since the trial court arguably charged the jury with respect to a crime whose elements are not sustainable
by the evidence adduced, we must decide whether such a charge is reversible error under State v. Christener, 71 N.J. 55 (1976), even if the error is non-prejudicial.
Officer Casper Buonocore of the Jersey City Police Department was shot and killed by Franklin Jennette on the evening of September 12, 1973. Jennette and two other men, defendant Steven Thomas and David Cheatham, were arrested in the building from which the shot was fired within minutes of the crime. Jennette later pleaded guilty to a charge of murder and received a sentence of life imprisonment. Defendant and Cheatham were also indicted for murder as aiders and abettors.
On the night of September 12, 1973, Officers Buonocore and Vogel were on motorcycle patrol. At approximately 8:45 P.M., while proceeding on Ocean Avenue they observed a double-parked car. The officers issued a summons to the driver of the car, Sam Williams, when he refused to respond to their direction to move his vehicle. A radio check indicated that Williams had an outstanding arrest warrant for a motor vehicle violation. The officers called for a radio car to transport Williams to the police station and attempted to arrest him. The radio car arrived and Williams was being led to it when his 13 year old daughter, Teresa Sutton, appeared and began to strike Vogel. When Vogel attempted to arrest her for assaulting an officer, she struggled further. After Officer Kevin Oris arrived on the scene, he too attempted to restrain her, but she kicked him and scratched his face. Oris then struck Teresa Sutton on the head with his nightstick and she fell to the ground unconscious.
Sergeant John McAuley arrived at the scene, took command, and attempted to control the crowd which had gathered in the meantime. Buonocore radioed for an ambulance and attempted to render aid to the young woman. More
police arrived as the crowd continued to grow. Mr. Williams was taken to the police station and Teresa Sutton was taken to the hospital in an ambulance.
McAuley ordered Officers Buonocore and Vogel to resume their routine patrol. As they were pulling away a shot was fired and Officer Buonocore fell from his motorcycle to the ground. No other shots were heard. The ambulance was called back immediately. However, Officer Buonocore was pronounced dead at 9:00 p.m. at the hospital.
An unidentified individual shouted that the shot had been fired from the corner apartment building at 49 Armstrong Avenue. Vogel ran to the building entrance where he met two other officers. Three to five minutes had elapsed since the shooting. Officers Vogel and Oris entered the building. They proceeded to a stairway, coming upon defendant running down the stairs from an open apartment door on the second floor. The defendant was handcuffed, taken outside and held on the ground. Vogel re-entered the building and observed Jennette and Cheatham standing near the door of a vacant third floor apartment from which they had apparently just emerged. These men were handcuffed and placed outside with defendant. Hughes Bryant, a fourth suspect, was also taken into custody at this time.
A search of the premises turned up the murder weapon in a garbage bag located on the third floor landing, at the foot of a ladder leading to the roof. The weapon was a .32 caliber Smith and Wesson revolver, between 50 and 100 years old. It was in good working condition but had a broken handle. A State Police ballistics expert positively concluded that the bullet which killed Officer Buonocore had been fired from this pistol.
Defendant was taken to the police station where he was questioned by Detective Robert Worthy and gave a statement. At trial the defense challenged the voluntariness of this statement. A voir dire was held and the judge ruled
that both defendant's oral statement to Detective Worthy and his written statement were admissible.
Defendant's written statement indicated that he had seen Jennette at about 8:00 p.m. on the evening of September 12, 1973 at Pee Wee's, a neighborhood bar. He admitted to seeing Jennette's gun at that time. The two proceeded to 49 Armstrong Avenue, to a second floor apartment where defendant's statement indicated they planned to obtain some drugs. Defendant David Cheatham came upstairs and told them of the excitement below involving Williams and his daughter. They went down to the street to observe the scene. Jennette then indicated that the three should go upstairs. When Thomas asked why, Jennette replied that he intended to shoot the police.
The statement went on to indicate that the three went to a second floor apartment in order to get out to the fire escape. They were not allowed in by the occupant and thus went to the top floor and used a ladder there to reach the roof. As the three leaned over the side of the roof to observe the activity below, Jennette took out a gun and Cheatham told him which policeman to shoot. Defendant claims that upon seeing the gun he ran back down the ladder to the top floor, and then heard the shot. He then proceeded to the second floor apartment he had earlier been visiting. The occupant let him in and he stayed about five minutes. Upon leaving the apartment to go downstairs, he was apprehended.
Hughes Bryant occupied the second floor apartment at which the three had stopped in an effort to view the scene below. Bryant testified that they asked to use his window. When he denied the request, one of the three asked if there was another way to the roof, and he showed them the location of the fire escape. Bryant thought that Thomas had asked the question but was not absolutely sure. Bryant testified that Thomas did state that the three should not use the fire escape to get to the roof. He observed a shiny object on Jennette's left side but was not aware that it was
a gun. The three then disappeared up a staircase. Five minutes later he heard a shot sounding like it came from above. At his window, Bryant observed Officer Buonocore fall to the ground. Bryant went downstairs and was taken into custody. At police headquarters he identified defendant, Cheatham and Jennette as the three men who had come to his apartment.
Defendant testified at his trial and contradicted his earlier statement to Detective Worthy that he had seen Jennette's gun at Pee Wee's bar. He denied seeing the gun at any time prior to the shooting and further denied that he and Jennette proceeded to his friend's apartment at 49 Armstrong Avenue in the hope of securing drugs. Defendant also denied telling Worthy that Jennette had told him while they were at street level that he was going to shoot a police officer. He further denied having any knowledge prior to reaching the roof of Jennette's intent to shoot someone. The defendant added that when he saw the gun and heard Cheatham tell Jennette to shoot the police, he immediately left the roof and was at the bottom of the ladder on the landing below where he heard the shot.
On direct examination defendant admitted to a prior conviction for robbery, stating that he took money from a lady that he knew. On cross-examination, the prosecutor asked defendant whether he had been convicted of the crime of putting someone in fear of his life. He answered affirmatively before his counsel's objection was sustained and a limiting instruction given. The prosecutor gave little heed to the judge's disapproval of this kind of questioning. Instead, he went on to ask why defendant failed to tell the jury that when he had taken money from a lady he knew, his accomplice in the crime had a knife. Another objection ensued and at a side bar conference, defense counsel asked for a mistrial. That motion was denied. The judge issued a strong instruction to the jury to disregard this information.
Soon thereafter, over defense counsel's objection, the prosecution was permitted to ask the defendant whether he was ever an addict and whether he had ever used heroin. When defendant answered all of these questions in the negative, he was confronted with a medical questionnaire from the Hudson County Jail which was filled out on September 13, 1973 by an inmate trustee and a corrections officer and which was signed by defendant. The form carried a notation which read "Drugs, 15 bags per day. Last fix September 12, 1973." Defendant denied both the truthfulness of this information and that he had ever told anyone that he had a habit.
In charging the jury under N.J.S.A. 2A:113-1 and 2A:113-2 the judge pursued alternate theories. First, he charged the jurors on their relevant considerations if they found that the victim was a police officer murdered in the performance of his duties. Second, he instructed the jurors on the applicable law should they conclude that the victim was not a police officer. The accuracy of these charges is not disputed. However, defense counsel objected to the charge respecting the killing of a non-police officer on the ground that it was never contended that decedent was not a police officer and that the extraneous charge might confuse the jury. The judge responded that since the defense counsel had not stipulated that decedent was an on-duty police officer, the charge was proper.
Consistent with State v. Madden, supra, the jury was instructed that if decedent was killed while in the performance of his duties as a police officer, a verdict of first degree murder required a finding of intent to kill. Premeditation and deliberation were not required. However, if the intent was not to kill but to inflict harm, no matter how grievous, only a conviction for second degree murder would be warranted.
Since defendant was charged as an aider and abettor under N.J.S.A. 2A:85-14, the judge also instructed the jury as to the legal principles necessary to establish defendant's
status as such. He noted that presence at the scene of the crime, in and of itself, is insufficient to render defendant a participant in it. However, the judge added that proof of presence at the scene of the commission of the crime without disapproving or opposing the criminal act is evidence from which, in connection with other circumstances, the jury could infer that defendant lent his countenance and approval to the crime and thereby aided and abetted its commission.
After charging the jury under N.J.S.A. 2A:151-5, the statute imposing an additional penalty for crimes committed while armed, the judge advised the jury as to the five possible verdicts which it could return: acquittal, murder in the first degree, murder in the second degree, murder in the first degree while armed and murder in the second degree while armed.
The jury retired for deliberations at 11:00 A.M. on February 7, 1974. The jury sent three notes to the judge requesting additional information. The first request does not concern us. The second request came at 4:10 P.M. on February 7, and asked the judge to re-read the parts of the charge where he cited the various statutes. The judge re-read the pertinent parts of N.J.S.A. 2A:113-1, 2A:113-2, 2A:85-14 and 2A:151-5. Fearing that a mere reading of N.J.S.A. 2A:113-2 would leave jurors with the impression that whenever a police officer was murdered the crime was first degree murder, defense counsel objected to the supplemental charge. He requested that the judge reinstruct the jury in accordance with State v. Madden, supra, as to the fact that a finding of intent to kill is necessary to support a verdict of first degree murder. The judge refused this request. A third request at 11:45 A.M. on the following morning asked for a further reading of the ...