On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D.
Defendant was convicted of murder in the first degree and sentenced to life imprisonment. He appeals, alleging multiple trial errors. There are two circumstances requiring reversal: (1) the prosecutor's statement to the jury on summation that the trial judge had previously found the defendant's two "confessions" to be voluntary; and (2) the trial judge's failure to clearly instruct the jury on the elements of larceny, as distinguished from robbery, because of the pertinence of this distinction to the felony-murder charge.
On the morning of May 31, 1975 Clarence McGrady was found murdered in his Newark home where he lived alone. An autopsy revealed that he had been dead for at least 48 hours from a gunshot wound to the head. In a pocket which appeared to have been untouched $200 in cash was found. Other pockets of the victim's clothing had been turned inside out.
Several days after the murder the victim's daughter, Mrs. Wesley, and the police unlocked the safe in the basement of McGrady's house and found $500 and a list of names of the Bowman family, of which defendant was a member. The Bowmans were relatives of Dorothy McGrady, the victim's wife, who had died the year before. Defendant's name and address was listed; he was described as a brother of the victim's deceased wife.
In July Mrs. Wesley received financial statements and receipts for Carte Blanche and American Express cards held by her father. The Carte Blanche statement showed a May 29 purchase at the Victoria Camera and Radio Shop in New York City. The signature on the receipt was not her father's. A receipt for a purchase at a New York men's
store, Phil Cromfeld's, on May 28 also did not contain her father's authentic signature.
On July 31 defendant was arrested on other charges and was held at Newark police headquarters. Detective McKinley Jackson, in charge of the McGrady homicide investigation, interrogated defendant about the killing and defendant was given a polygraph examination. Thereafter defendant gave a written statement to the police at about 9 P.M. that evening. In this statement defendant admitted being at the victim's house at the time of the murder with a Larry Jones and a man named "Sam". He said the three were admitted voluntarily by the victim. Defendant said that while the others were talking he went upstairs alone to use the bathroom. While there he stole two credit cards from the bedroom. As he was looking around for money defendant said he heard shots, ran downstairs and saw McGrady lying on the floor. Jones, "Sam" and defendant then fled. Defendant admitted using the victim's American Express credit card to purchase a suit at Phil Cromfeld's in New York. He denied using the Carte Blanche card.
The next day defendant gave the police another statement detailing an entirely different story. Defendant said he lied about the presence of the two other men. He stated that he shot McGrady himself with the victim's own gun while they argued in the kitchen about a business deal. Defendant claimed McGrady pulled the gun on him and defendant grabbed it away. Defendant said that as McGrady tried to grab the gun back, he accidentally shot the victim in the head. Defendant denied rummaging through McGrady's house and made no mention of stealing credit cards. After the shooting defendant left, throwing the gun away nearby.
On voir dire defendant claimed the statements were obtained by beatings and threats of additional violence, and without Miranda warnings. He admitted that the police recovered the suit purchased with the stolen credit card from his apartment. The trial judge ruled in the State's favor on the voluntariness of the "confessions" and on the Miranda
issues. At trial defendant offered no proof and ...