On appeal from Superior Court, Law Division, Camden County.
[173 NJSuper Page 76] Defendant was indicted, tried and convicted of the murder of John Lee Spearman while armed (counts 1 and 2); the murder
of Jonathan Lee Spearman while armed (counts 3 and 4); atrocious assault and battery on Nikki Spearman (count 5); possession of a firearm without a permit to carry same (count 6); robbery of John Stewart while armed (counts 7 and 8); assault with an offensive weapon on Forrest Trotter (count 9), and assault with intent to kill Forrest Trotter (count 10). After the convictions, counts 5, 7 and 8 were merged with the convictions on counts 1 and 3, and the conviction on count 9 was merged with the conviction on count 10. Defendant was sentenced to the New Jersey State Prison to two concurrent life terms on counts 1 and 3; an 8 to 10-year sentence on count 2, to be served consecutive to the first count; an 8 to 10-year sentence on count 4, to be served concurrent with the sentence imposed on count 2; a 3 to 5-year sentence on count 6 to run concurrent with the sentence imposed on count 1, and a 5 to 7-year sentence on count 10, to be served consecutive with the sentence imposed on count 6.
The record discloses, and the jurors could have found, the following facts. On March 9, 1975 John Stewart, who resided with his girlfriend Nikki Spearman, who was then 7 1/2 months pregnant, was at home. Shortly before noon Forrest "Rick" Trotter, a friend of Stewart's, came by to return a record album to Stewart. They sat and smoked marijuana while listening to records for a short time (Spearman was resting upstairs).
According to Stewart, two men, one of whom was defendant, came to the door between 1 and 1:30 p.m. Since Stewart and Spearman had been selling marijuana at that time, Stewart asked Spearman to come downstairs to see if she could identify the men at the door. Stewart had apparently never seen them before. Spearman could not identify them either.
After the two men entered the house they told Stewart that they had heard that he was selling good marijuana and that they wished to purchase a quarter-pound. Trotter remained
seated on a chair in the living room, and Nikki Spearman was somewhere on the staircase leading upstairs.
Stewart decided to negotiate with the two men and permitted them to sample his marijuana. The men, not including Stewart, smoked two joints, and indicated that they wished to purchase some.
Spearman then went upstairs to prepare the marijuana for sale. Stewart then went upstairs and brought the marijuana into the kitchen. Stewart attempted to find out who the two men were, and after being unsuccessful told them that he had decided that he did not want to do business with them. Defendant then pulled a revolver from his waistband and asked for money while he held the gun on Stewart. The second man, armed with a blackjack, went into the living room to get Trotter. Trotter broke for the stairs, knocking Spearman off balance. Defendant fired his revolver, intending to hit Trotter, but struck Spearman in the abdomen. Stewart heard Spearman cry, "Oh, my baby," which she repeated over and over, but he could not see her, since he had dived under the kitchen table in an attempt to grab the gunman's leg.
The second man took Stewart upstairs in search of money. Stewart gave him $300 and a suitcase full of marijuana. When the second man attempted to get Stewart to come back downstairs, Stewart reached into his dresser drawer pretending to be reaching for a weapon. The second man ran downstairs, and the two intruders ran out the front door.
After being shot Spearman went upstairs into the bathroom to try to stop the flow of blood from her wound. After the two men left Stewart drove her to the hospital and advised her not to say anything about the marijuana deal. The police came to the scene and took Stewart with them to the police station. Trotter, who had concealed himself in a closet after the shooting, left the house and then returned with a friend to clean up the marijuana which had been left there.
At the police station, a taped statement narrating the events surrounding the shooting, but which omitted any references to the proposed drug deal, was taken. At that time Stewart described the gunman as being about 5'9" to 5'10" tall, having a light mustache and wearing "suit pants and sneakers." Trotter described the same man as wearing a "pair of coveralls, blue jeans" and being about 6' tall. Stewart testified at trial that the two assailants had been at his home for "something like" an hour to an hour and a half, while at the Wade hearing, he testified that they had been there for about half an hour.
At the hospital Spearman was first examined by a doctor who called her obstetrician, Dr. Jung. Dr. Jung had examined Spearman at his office about four days prior to the shooting and had found her condition to be quite normal. After examining Ms. Spearman, he determined that she was approximately 30 weeks pregnant and that she had been shot in the abdomen. In order to determine the ...