On appeal from Superior Court, Law Division Hudson County.
Allcorn, Morgan and Horn.
In this case defendant Kenneth John Linder appeals from a judgment of conviction of murder in the first degree (N.J.S.A. 2A:113-1 and 2) and of being armed during the murder (N.J.S.A. 2A:151-5), entered on the verdict of a jury.
Defendant and one Harry Stahl were jointly charged and tried for these offenses. The jury found Stahl guilty of murder in the second degree and of possessing and carrying a dangerous knife, but acquitted him of charges of being armed during the murder and of possessing the knife with intent to use it unlawfully against another.
The judge sentenced defendant to life imprisonment on the murder conviction and a 1-2-year concurrent term on the armed aspect of the crime.
The events leading to the convictions occurred on the evening of July 7 and early morning of July 8, 1976. The victim, 15-year-old Corrine Wekwert, was stabbed to death in North Hudson Park in North Bergen during the very early morning of July 8, 1976. Shortly before her death Corrine had sniffed paint at a place known as the "Ropes." With her were three teen-aged boys, defendant (age 17), Harry Stahl (also age 17) and Robert Emord (age 18). At the trial the three boys' versions of the events leading to Corrine's death varied significantly.
It is not disputed that the foursome arrived at the Ropes area and began sniffing paint around midnight. At about one o'clock Emord took a walk with Corrine, and shortly thereafter defendant and Stahl (who went to look for the couple) observed Emord and Corrine engaged in sexual intercourse. After a few minutes Emord and Corrine returned to the area where the foursome sniffed paint. At that point the testimony diverged.
According to defendant, Stahl took Corrine for a walk shortly after she returned. When Stahl returned he indicated to defendant by a hand and arm motion that he had had sexual intercourse with Corrine. Defendant then put his arm on Corrine's
chest and started kissing her. Corrine rejected his advances and he moved away. Emord then took Corrine's pants off and it "looked like" they again had sexual intercourse. Defendant was then going to attempt to have sex with Corrine, but decided not to because she had previously rejected him.
According to codefendant Stahl, he did not take Corrine for a walk after she returned with Emord. Stahl claimed that Emord and Corrine returned and defendant began to press himself upon Corrine. When Corrine resisted, Emord assisted defendant by holding Corrine down. According to Stahl, defendant unbuckled Corrine's pants and took her shoes and pants off. Emord then had sex with Corrine. Defendant tried to have intercourse with Corrine, but could not achieve an erection. Corrine began crying and the foursome left the Ropes area.
Emord agreed with defendant that Stahl and Corrine went for a walk and that upon his return Stahl gestured up and down with his fist and mumbled, "I got her," indicating he had sexual relations with Corrine. Emord also testified that defendant tried to have sexual relations with Corrine, but that she rejected him. According to Emord, he did not have sex again with Corrine.
The testimony of the witnesses also diverged substantially regarding the circumstances of Corrine's death. Defendant testified that as the foursome left the Ropes area and made their way through North Hudson Park, Stahl and Corrine talked to each other. As they approached Bergenline Avenue Emord stopped and Stahl approached him. Defendant said he could not hear any of the conversation between Emord and Stahl. Corrine was crying at that time and saying, "Why did youse do it to me?" Stahl told Emord to grab Corrine, and Emord knocked her down and grabbed her left arm and mouth. Stahl grabbed Corrine's right arm and put his knee on her stomach. Stahl then began chopping at Corrine's neck with a knife (a folding, double-bladed knife which Stahl kept in a brown leather holster
on his belt). Stahl then said "the guy" and all three ran off, with defendant trailing.
Stahl testified that Corrine was crying as the foursome left the Ropes area. Corrine was getting louder and demanded of the boys, "Why did youse do that?" According to Stahl, defendant turned to Corrine and said, "Shut up or I will kill you." Defendant also put a knife to Corrine's chin. Corrine kept walking and crying, and Emord turned around and knocked her down. Defendant then stabbed Corrine with Stahl's double-bladed knife. Stahl then said somebody is coming and they all ran away.
Emord testified that as the foursome left the Ropes area Stahl approached him and asked what they should do about Corrine's crying and yelling. Emord replied that if Corrine called the cops and said the boys raped her they could get people from the area to come to court and say that Corrine was easy, that she performed sex willingly. Stahl, after speaking to defendant, ran to Corrine, pushed her with his forearms and said, "Grab her." Emord grabbed one arm and defendant grabbed the other. Stahl sat on Corrine's stomach and began stabbing her with his double-bladed knife. After Stahl stabbed Corrine two or three times in the neck, Emord walked away. According to Emord, defendant said, "If you can kill her I can kill her." Emord did not see defendant stab Corrine, however, Stahl then said, "Run, the guy," and the three boys fled.
The foregoing recital demonstrates, as stated by the prosecuting attorney in his summation, that each defendant was trying to place the blame on the other one. The jury was required to make its judgment probably more on the basis of credibility of the three boys than anything else.
At the time of the homicide Stahl was a sailor in the United States Navy. He had been home on leave, but had overstayed his allotted leave time. On July 2, 1976, on obtaining leave, he had purchased a knife and case, which he carried on his person. The knife used in killing Corrine was the one purchased and
carried by Stahl. After the stabbing Stahl conceded that he washed off the knife.
At the outset of the trial, before the jury was selected defendant's lawyer requested that the trial judge require Stahl to change from his navy uniform, in which he appeared in court, into civilian clothes. He further stated:
The judge denied the request in the following words:
I have listened to what [Stahl's] counsel had to say with respect to his inability to have clothes other than those in the service. We are proud of those who are in the service and I believe they have the right to wear what they want, whether it be in a court of law, in the capitals of our states or in the capital of our nation . . ..
Although the fact is that Stahl was permitted to wear his navy uniform during the entire trial, which commenced May 31, 1977 and concluded June 24, 1977, defendant has failed to provide this court with any authority or to argue the point except as an adjunct to the sole ground of appeal which is stated hereinafter.
We need not determine in this case whether Stahl had a constitutional or other right to wear the uniform during the trial. This question can best await a case where the matter is presented squarely. However, we must note our disagreement with the trial judge, who should have been more solicitous in providing a fair trial for both defendants than with respect to the right of a member of the armed forces to wear the uniform. Even if he could not compel Stahl to wear civilian clothing, he could have taken other measures to protect defendant against unfair comparison by reason of Stahl's garb.*fn1 He could have ordered separate trials if it would mean that prejudice to defendant could have been eliminated and if he believed that he
did not have the right under the circumstances to compel Stahl to wear civilian clothing.
Defendant contends in this appeal that the trial judge grievously erred to defendant's prejudice in permitting continued cross-examination of defendant concerning his prior LSD use. We agree and accordingly reverse the conviction.
On cross-examination defendant admitted he was "high" on the day Corrine was stabbed to death. Stahl's counsel then asked if defendant had taken LSD that day, and a voir dire ensued to determine whether such evidence was admissible.
Out of the presence of the jury, counsel for Stahl questioned defendant concerning two letters he wrote from prison, allegedly concerning his use of LSD at different times than the day in question.
When defendant was asked during the voir dire hearing when he last had ingested LSD prior to the stabbing death of Corrine, he replied that it was "[a]bout a month or so" before Corrine's death. He also said he had not had any LSD since then.
Following that hearing the trial judge ruled as follows concerning the questioning of defendant about his LSD use:
Well, I am going to adopt a middle ground. I will permit you, Mr. McAlevy [Stahl's counsel], to ask this witness ...