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State v. Gary

Decided: December 1, 1988.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID GARY, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Salem County.

J. H. Coleman, Baime and D'Annunzio. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

A jury convicted defendant in 1975 of the murder of Thomas Quinlan, a priest and principal of St. James Grammar School in Penns Grove, contrary to N.J.S.A. 2A:113-1 and 2A:113-2, and assault with intent to kill a second-grade teacher in the same school, contrary to N.J.S.A. 2A:90-2. Defendant was sentenced to state prison for life. This is defendant's first appeal. We now affirm the judgment of conviction.

Because of the inordinate delay in prosecuting the appeal, a detailed procedural history is required. On February 28, 1975 a Salem County Grand Jury indicted defendant for murder and assault which occurred on February 24, 1975. Trial was conducted between July 24 and August 1, 1975. Defendant was sentenced on September 16, 1975. The notice of appeal was filed on November 3, 1975. Nearly two years later and before filing a merits brief, defendant's appellate counsel prepared a motion for a new trial in the Law Division, Salem County, based on alleged prejudicial pretrial publicity. The record does not indicate whether the motion was ever filed. In any event, no disposition of the motion has been located.

Defendant filed an appellate brief on April 12, 1978 and raised two issues: one, that the trial was infected by pretrial publicity; and two, that he was denied effective assistance of counsel. On April 20, 1978 a motion for a new trial was made

on behalf of defendant in the Appellate Division based on alleged prejudicial pretrial publicity. That motion was denied on May 10, 1978.

On January 3, 1979, the State moved to compel production of the transcripts of the jury voir dire and newspaper articles relied upon by defendant. On January 31, 1979 the State's motion was granted and defendant was directed to file and serve the transcripts and articles on or before February 9, 1979. The appeal was dismissed on March 21, 1979 for failure to comply with the January 31, 1979 order.

Defendant took no action to reinstate the appeal for more than six years. A motion to reinstate the appeal was finally filed on August 30, 1985. The motion was denied on September 24, 1985 without prejudice to renew the motion after filing the transcripts and the newspaper articles. On February 2, 1988 defendant again sought reinstatement of the appeal. This motion was granted on March 4, 1988. Defendant's merits brief was filed on March 10, 1988 and the State filed its merits brief on July 28, 1988. Neither the briefs nor oral argument enlightened us as to why defendant delayed reinstating his appeal. It is clear from the record, however, the present appellate counsel did not enter the case until approximately November 1987 and she is not responsible for the delay.

In this appeal, defendant contends:

1. THE EXTENT AND PREJUDICIAL NATURE OF PRETRIAL AND TRIAL PUBLICITY IN THE SALEM COUNTY AREA, PARTICULARLY WITH RESPECT TO DEFENDANT'S REPUTATION AND CHARACTER, WAS SUCH AS TO DENY THE DEFENDANT HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY IN VIOLATION OF THE 6th AND 14th AMENDMENTS OF THE U.S. CONSTITUTION. (Not Raised Below).

2. THE EXTENT AND PREJUDICIAL NATURE OF THE PRETRIAL AND TRIAL PUBLICITY DENIED THE DEFENDANT HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY IN VIOLATION OF ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION. (Not Raised Below).

3. DEFENSE COUNSEL'S FAILURE TO MOVE FOR A CHANGE OF VENUE OR OTHER PROTECTIVE MEASURES, COUPLED WITH OTHER SERIOUS MISTAKES MADE AT TRIAL, AMOUNTED TO MORE THAN

MERE TRIAL STRATEGY AND WAS, UNDER THE CIRCUMSTANCES OF THIS CASE, SUCH A FUNDAMENTAL AND GRIEVOUS ERROR AS TO DEPRIVE THE DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE 6TH AND 14TH AMENDMENTS OF THE U.S. CONSTITUTION AND N.J. CONST., ART. I, PAR. 10.

4. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO INSTRUCT THE JURY THAT DIMINISHED CAPACITY, WHILE NOT RISING TO THE LEVEL OF LEGAL INSANITY, NEVERTHELESS NEGATIVES THE CONCLUSION THAT FIRST DEGREE MURDER OR ASSAULT WITH INTENT TO KILL HAD BEEN COMMITTED. (Not Raised Below).

I

During the trial, defendant urged the defense of insanity under the M'Naghten rule at the time of the crimes. Because defendant concedes in this appeal that he shot the priest and the school teacher, the essential facts are not disputed. On the morning of February 24, 1975, defendant, armed with a shotgun, entered a second-grade classroom at St. James Grammar School in Penns Grove and opened fire at a teacher, K.T.F. The first shot struck K.T.F.'s right arm below the elbow and the impact spun her around. Defendant reloaded and fired again, striking the teacher in the abdomen and knocking her to the floor. Defendant again reloaded as Father Thomas Quinlan, the school's principal, approached the teacher's classroom. As he drew near, the priest asked, "What are you doing in this building?" Defendant fired a third shot that struck Father Quinlan in the head, killing him almost instantly.

Earlier in the day of the crimes, Evelyn Fulerton picked up defendant as he was hitchhiking in the rain. Defendant told Fulerton that he was heading for Carney's Point. At approximately 8:45 a.m., Fulerton dropped defendant off in Carney's Point and he walked across a field toward his uncle's service station at 307 Shell Road in Carney's Point. She did not notice anything unusual about defendant.

After defendant arrived at the station, he engaged in casual talk with his uncle, Newcomb Gary. He said "hello" to his cousin, Robert Gary, who was pumping gasoline. Defendant

went inside and began thumbing through a newspaper. Defendant and his cousin sat in silence until defendant suddenly said something to the effect that, "It's enough to piss you off." After 10 to 15 minutes, defendant said to his cousin as he was leaving, "I'll see you later." Neither his uncle nor his cousin noticed anything unusual about defendant that morning.

At approximately 9:00 a.m., Charles Dickey was driving north on Route 130 when he spotted defendant running while hitchhiking. Defendant appeared to be in a hurry. Dickey picked up defendant and drove him to Penns Grove.

Between 9:00 and 9:15 a.m., defendant kicked open the front door of his sister's apartment at 158 State Street, Penns Grove. Frederick Spinken, the boyfriend of defendant's sister Tina Reed, was inside the apartment at the time. When Spinken observed defendant at the closet, he asked defendant what he was doing. Defendant replied that he was looking for a shotgun. Defendant removed from the closet what appeared to be a shotgun. ...


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