On appeal from the Superior Court, Law Division, Atlantic County.
Furman, Shebell and Stern. The opinion of the court was delivered by Stern, J.A.D.
Defendant was indicted for murder, contrary to N.J.S.A. 2C:11-3a, and theft, in violation of N.J.S.A. 2C:20-3. Tried to a jury, defendant was convicted of third degree theft. The jury could not reach a verdict on the murder count and a mistrial was declared. At a second trial, defendant was convicted of the murder. The offenses occurred in February, 1981.
On the murder conviction defendant was sentenced to life imprisonment with 25 years of parole ineligibility. On the theft conviction, defendant was sentenced to a consecutive five year term with two and one-half years to be served before parole eligibility. Defendant appeals and contends:
I THE JUDGE ERRED IN PERMITTING THE STATE TO CHANGE THE DATE OF OFFENSE DURING THE TRIAL.
II DEFENDANT'S THEFT CONVICTION SHOULD BE TREATED AS A DISORDERLY PERSONS OFFENSE BECAUSE THE INDICTMENT MADE NO MENTION OF VALUE, THE TRIAL JUDGE WAS WITHOUT AUTHORITY
TO SUBMIT THE QUESTION OF VALUE TO THE JURORS, AND THE JUDGE FAILED TO CHARGE THAT THE STATE MUST PROVE VALUE BEYOND A REASONABLE DOUBT.
III THE TRIAL COURT COMMITTED HARMFUL ERROR WHEN IT REFUSED TO ANSWER THE JURY'S QUESTION REGARDING THE EFFECT OF A FAILURE TO REACH A UNANIMOUS VERDICT.
IV ADMISSION OF EVIDENCE REGARDING THE NARZIKUL BURGLARY WAS HARMFUL ERROR AND VIOLATED EVID.R. 55.
V THE JUDGE ERRED IN REFUSING TO ALLOW DEFENDANT TO INTRODUCE EVIDENCE OF OTHER CRIMES DEFENSIVELY.
VI IT WAS HARMFUL ERROR TO ADMIT HACKSAWS AND BLADES INTO EVIDENCE WHICH HAD NO SIGNIFICANCE IN THIS CASE; THIS ERROR WAS COMPOUNDED BY THE JUDGE'S FAILURE TO ISSUE A CAUTIONARY INSTRUCTION TO THE JURY DESPITE HIS AGREEMENT TO DO SO.
VII THE TRIAL COURT IMPROPERLY LIMITED DEFENDANT'S CROSS-EXAMINATION OF THE STATE'S WITNESS ARTHUR DEVINE (harmful error).
A. Defendant was entitled to cross-examine Devine regarding a pending disorderly persons charge.
B. Defendant should have been allowed to question Arthur Devine regarding his training as a Green Beret.
VIII IT WAS HARMFUL ERROR TO ADMIT THE MEDICAL EXAMINER'S TESTIMONY AS TO WHY SHE BELIEVED THAT THE VICTIM'S MANNER OF DEATH WAS HOMICIDE.
XI IT WAS HARMFUL ERROR TO DENY DEFENDANT'S MOTION FOR A MISTRIAL AFTER THE PROSECUTOR INTENTIONALLY ELICITED TESTIMONY FROM A WITNESS CONCERNING POLYGRAPHS.
X DEFENDANT'S CONVICTION FOR MURDER MUST BE REVERSED BECAUSE OF THE STATE'S FAILURE TO PROVIDE DISCOVERY REGARDING THE ...