On appeal from Superior Court, Law Division, Monmouth County.
Fritz, Bischoff and Morgan.
Defendant James E. Thomas appeals his conviction by jury for robbery (N.J.S.A. 2A:141-1), while armed (N.J.S.A. 2A:151-5), atrocious assault and battery (N.J.S.A. 2A:90-1), assault with an offensive weapon (N.J.S.A. 2A:90-3), carrying a pistol without a permit (N.J.S.A. 2A:151-41), entering without breaking with intent to rob (N.J.S.A. 2A:94-1) and conspiracy with Richard Dorsey and Nancy Thomas, his co-indictees, to commit armed robbery (N.J.S.A. 2A:98-1). Defendant was sentenced to an aggregate term of not less than 17 nor more than 25 years in State Prison.
The evidence adduced by the State indicated that defendant, Richard Dorsey and a third man, Irving Young, entered
the Lyric Theater in Asbury Park and produced weapons -- Dorsey, a knife, Young, a starter's pistol; and defendant, a .22-caliber automatic pistol. Dorsey demanded and obtained money from the doorman, while Young and defendant proceeded into the office of the manager, Willie Plummer. In response to the robbers' demands, Plummer retrieved the night's receipts and gave them to Young. As Young was leaving, he turned and fired his starter's pistol at Plummer. Plummer proceeded to run into Young and knock the starter's pistol out of his hand, then ran at defendant to take his gun away also. He grabbed defendant's hand and the gun went off an inch or two from Plummer's face, wounding Plummer in the cheek and mouth. At trial Plummer positively identified defendant as the robber who shot him. The only other theater employee who testified could not identify anyone in the courtroom as one of the robbers. The thrust of defendant's defense was that he was not one of the men involved in the robbery. He produced a witness who testified that defendant's appearance at the time of the robbery was different from the description Plummer gave of his assailant.
The evidence was clearly sufficient to support the verdict of guilty returned by the jury. Nevertheless, we reluctantly conclude the judgment of conviction must be reversed and the matter remanded for a new trial because of prosecutorial excesses and improprieties. Repeatedly expressing concern for prosecutorial misconduct, the Supreme Court has stated that, in appropriate cases, a mere expression of displeasure would not be a sufficient remedy and more severe action may be necessary. State v. Spano , 64 N.J. 566, 568-569 (1974); State v. Farrell , 61 N.J. 99, 104 (1972); State v. Johnson , 65 N.J. 388, 391 (1974); cf. State v. Perry , 65 N.J. 45 (1974); State v. DiPaglia , 64 N.J. 288 (1974). This is such a case. Our review of the record satisfies us that the conduct of the prosecutor in the trial of this case induced errors of such magnitude and number as to deprive defendant of a fair trial. Fundamental
considerations of fairness mandate that the judgment of conviction be set aside and the case remanded for a new trial.*fn1
The following are among the more egregious instances of misconduct. Defendant contends the examination of the investigating detective, Reed, violated defendant's sixth amendment right of confrontation, pointing to the following questioning of Reed by the prosecutor:
Q. Now, you mentioned that after your investigation and after you were getting the warrants and so on and Mr. Young was picked up, at this point you still only had one suspect. Will you tell me what you did next in your investigation?
A. The investigation continued by myself, other detectives. We had acquired information in regards to suspects. We had received the name of -- I had received the names through an informant, a nickname, in fact, and I had also received a name of the other -- actually, the other name of the other suspects two and three.
Q. And, through this information, what developed?
A. Well, a complaint was made out as a result of continuing investigation for a Dorsey, Richard Dorsey.
A. Yes. He was subsequently arrested on ...