On appeal from Superior Court, Law Division, Hudson County.
Lora, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.
[160 NJSuper Page 53] Frank J. Chaney*fn1 and his brother, Johnnie Chaney, were indicted for (1) the murder of one Alvin Gaillard, "then and there being armed with and having in their possession a certain dangerous weapon, to wit, a revolver," in violation of N.J.S.A. 2A:113-1; 2A:113-2 and 2A:151-5; (2) an assault upon one Cheryl Daniels (referred to at the trial as Cheryl Rencher) with a dangerous weapon with intent to kill, in violation of N.J.S.A. 2A:90-2 and 2A:151-5, and (3) possession of a revolver without a permit therefor (N.J.S.A. 2A:151-41). Johnnie
Chaney was separately charged in another count with threatening to take the life of the said Cheryl Daniels (N.J.S.A. 2A:113-8).
Both were found guilty as charged*fn2 at a jury trial. Motions for a judgment of acquittal or, in the alternative, for a new trial were heard and denied. Each was sentenced to life imprisonment for the murder and to a consecutive term of 5 to 10 years for committing the murder while armed; to concurrent terms of 5 to 10 years and 3 to 5 years for, respectively, the assault with intent to kill and the commission of the offense while having in his possession a firearm, and to a further concurrent term of 3 to 5 years for the unlawful possession of a weapon. Defendant Johnnie Chaney was additionally sentenced to a concurrent term of 5 to 7 years for the threat to kill.
Defendants appeal, setting forth in their brief the following contentions:
The trial court's refusal to grant the defendants' motion to sever the fourth count of the indictment constituted reversible error.
The trial court by calling Cheryl Daniels Rencher as a court witness abused its discretion, which abuse resulted in prejudice to the defendants constituting reversible error.
As the totality of the circumstances surrounding the eyewitness' pre-trial confrontations were unnecessarily suggestive and conducive to irreparable mistaken identification, it was error to admit both the pre-trial identification and the in-court identification.
The trial court abused its discretion by permitting rebuttal testimony by a TWA representative and a stewardess.
It was plain error for the trial court to limit the jury to a finding of a verdict of guilty of first degree murder or an acquittal.
The verdict was fatally defective as it failed to specify the degree of murder of which the defendants were found guilty.
The cumulative effect of trial errors deprived defendants of a fair trial under our system of justice and a new trial should be granted.
In a supplemental pro se brief "On Behalf of both Defendants," defendant Johnnie Chaney argues that "the trial court should have granted the motion for judgement [ sic ] of acquittal or a new trial."
Alvin Gaillard was shot to death at about 7:30 P.M. on February 22, 1974 as he left his dry cleaning store located at Ocean and Virginia Avenues in Jersey City, and was about to get into his automobile which was parked nearby. His companion, Cheryl Rencher (Daniels), was the only eyewitness known to the police. Her identification of defendants as the culprits led to their apprehension and subsequent indictment and trial.*fn3 Defendants denied having been implicated in the murder and related offenses. Each claimed to have been elsewhere at the time of the murder. Frank Chaney maintained that he was at the home of a friend and produced corroborating witnesses. The defense offered by Johnnie Chaney was that he had left for California two days earlier and was there when the shooting occurred.
We deal first with defendants' contention that the trial judge abused his discretion "by calling Cheryl Daniels Rencher as a court witness * * * which abuse resulted in prejudice to the defendants constituting reversible error."
Except in rebuttal, the only witness produced before the jury by the State was the county medical examiner, whose testimony related to the cause of death as determined by the autopsy he had performed on decedent's body. Over defense
objection, Mrs. Rencher, obviously a key witness without whom the State could not have placed defendants at the scene of the crime, was allowed to testify as a court witness on the motion of the prosecutor, who was apprehensive of her reliability as a witness. The request was made at the conclusion of a protracted preliminary inquiry held by the trial judge out of the presence of the jury to determine the admissibility of Mrs. Rencher's out-of-court and anticipated in-court identification of defendants. Mrs. Rencher was thereupon summoned as a court witness. The direct examination of the witness was conducted by the trial judge. It was followed by cross-examination by each defense attorney and the prosecutor, in that order.
Defendants complain that to their "great prejudice * * * the prosecutor was placed in a position of being able to bolster the credibility of the only eyewitness to the crime, by giving the witness the opportunity of repeating the testimony she had given when questioned by the court when again questioned by the State."
There were indeed inconsistencies and contradictions in Mrs. Rencher's testimony, and her credibility was further impaired by other witnesses produced in behalf of defendants. The most significant discrepancy related to her identification of the defendants. Her version on the voir dire (later substantially repeated to the jury) was that as she was standing on the sidewalk at the passenger door of the automobile waiting for Gaillard to unlock the door on the driver's side, a car containing three men drove up alongside, squeezing decedent between the two cars. She recognized the driver as John Chaney, having seen him on other occasions. She could not identify the person in the rear of that car. Someone called out, "Hey, Alvin," and the passenger, who ...