State v. Belton

Decision Date03 June 1969
Citation286 A.2d 78,60 N.J. 103
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. James BELTON and Ulysses Neil, Defendants-Appellants.
CourtNew Jersey Supreme Court

Lawrence Weintraub, Hackensack, for appellant James Belton.

Peter R. Feehan, Paramus, for appellant Ulysses Neil.

John A. Brogan, Deputy Atty. Gen., for respondent (George F. Kugler, Jr., Atty. Gen., attorney).

The opinion of the Court was delivered by

JACOBS, J.

The defendants Belton and Neil were convicted of murder in the first degree. The jury recommended life imprisonment for Neil and he was sentenced accordingly; the jury made no recommendation as to Belton and he was sentenced to death. N.J.S.A. 2A:113--4. Both defendants appealed to this Court under R.R. 1:2--1(c)--now R. 2:2--1(a)(3).

The defendants entered the Riviera Motor Hotel in Fort Lee for the purpose of committing armed robbery. Belton pulled a gun and ordered the hotel manager to turn over the money in the cash register. He did so. In the meantime Neil had gone to the rear, had pointed his gun at the hotel's desk clerk who was then eating at a table, had taken his money, and had ordered him to disrobe. During the course of the robbery a silent burglar alarm was set off by the hotel manager and shortly thereafter the police arrived. As Patrolman Birch entered he was shot three times by Belton and he late died of his wounds. As other patrolmen entered the defendants fled but were captured in short order.

Before trial Belton sought to plead Non vult but his plea was rejected (State v. Belton, 48 N.J. 432, 226 A.2d 425 (1967)) and the matter came on for trial. During the trial Belton testified, acknowledging the robbery and the killing and aiming his defense at obtaining a recommendation of life imprisonment from the jury. Neil also testified during the trial, acknowledging that during the course of the robbery he had pointed his gun at the desk clerk, had taken his money, and had ordered him to disrobe. Neil's defense was that Belton had coerced him into the robbery but his story was evidently given no credit by the jury. In all, the State's testimony was overwhelming as against each of the defendants and the jury's verdict was clearly in conformity with the evidence and the trial court's charge.

The defendants have advanced various legal contentions which need be dealt with only in summary fashion. They attack the trial court's refusal to grant a change of venue and a severance but these were matters within the court's discretion and there has been no showing whatever of improper exercise or prejudice. See State v. Ravenell, 43 N.J. 171, 180--181, 203 A.2d 13 (1964), cert. denied, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed.2d 572 (1965); State v. Mayberry, 52 N.J. 413, 420--421, 245 A.2d 481 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969); State v. Laws, 50 N.J. 159, 175, 233 A.2d 633 (1967), on reargument 51 N.J. 494, 242 A.2d 333, cert. denied, 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968). The defendants complain about pretrial publicity but it occurred more than eight months before the trial and did not prevent the selection of a proper jury. Indeed the defendants did not feel compelled to exercise all of their peremptory challenges and the mitigative recommendation in favor of Neil tends to support the substantial indications in the record that there were no improperly 'aroused passions' (State v. Gallicchio, 51 N.J. 313, 318, 240 A.2d 166, cert. denied, 393 U.S. 912, 89 S.Ct. 233, 21 L.Ed.2d 198 (1968)) nor any disabilities on the part of the jury to deal 'fairly and impartially' with the evidence and the court's instructions. See State v. Ravenell, Supra, 43 N.J. at 181, 203 A.2d 13.

The defendants attack the trial court's refusal to grant a mistrial after Juror Chankalian was excused, thereby leaving thirteen of the fourteen jurors chosen under the authority of R.R. 3:7--2(d)--now R. 1:8--2(d). During the Voir dire Chankalian stated that he knew Assistant Prosecutor Polito in high school and that that was the last time he had any association with him. He further stated that insofar as the case against Belton and Neil was concerned his acquaintance with Polito would make 'absolutely no difference' to him. He was chosen as a juror on Friday, June 9, on the following day the selection of the jury was completed, and on June 12 the trial began. On Saturday, June 10 Polito read a newspaper item listing Chankalian as a juror and on June 12 Polito advised the court that he had represented Chankalian in a title closing about two years earlier but that apart from that he had no association with him since high school. Thereupon the trial court excused Chankalian as a juror and proceeded with the remaining thirteen jurors.

Counsel for the defendants now advance the suggestion that Chankalian's presence may have contaminated the other jurors during the period prior to his excusal but there is nothing supportive before us. Indeed the motion for mistrial was not grounded on any suggestion of contamination but on the contention that the defendants were improperly being 'precluded from having a group of fourteen jurors from which to choose' at the end of the case. The contention was properly rejected as utterly without merit for the defendants had no right to have fourteen jurors at the close of the case. The very reason for having the alternate jurors was to enable the proceedings to continue with at least the required twelve jurors if during the course of the trial a juror was, for any reason, no longer able to serve. See State v. Dolbow, 117 N.J.L. 560, 189 A. 915 (E. & A.), appeal dismissed, 301 U.S. 669, 57 S.Ct. 943, 81 L.Ed. 1334 (1937); Pressler, New Jersey Court Rules, R. 1:8--2 (1971); Rules of Criminal Procedure, 18 U.S.C.A., Rule 24(c) (1969); 5A Moore's Federal Practice § 47.07 (1971).

The defendants complain about the introduction in evidence of four color photographs of the body of Patrolman Birch. They showed the entrance and exit wounds of the bullets fired by Belton and were relevant to the State's case. In State v. Smith, 32 N.J. 501, 161 A.2d 520 (1960), cert. denied, 364 U.S. 936, 81 S.Ct. 383, 5 L.Ed.2d 367 (1961), we pointed out that the admission of photographs having some probative value, even where cumulative and somewhat inflammatory, rests within the discretion of the trial judge 'whose ruling will not be overturned save for abuse, as where logical relevance will unquestionably be overwhelmed by the inherently prejudicial nature of the particular picture.' 32 N.J. at 525, 161 A.2d at 532. It is clear to us that here the trial court did not exceed its discretionary authority in receiving the photographs in evidence and that, in the light of the entire record, its ruling could not have prejudiced any of the substantial rights of the defendants. See State v. Coleman, 46 N.J. 16, 26, 214 A.2d 393 (1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1210, 16 L.Ed.2d 212 (1966); State v. Gosser, 50 N.J. 438, 448, 236 A.2d 377 (1967); State v. Conforti, 53 N.J. 239, 246, 250 A.2d 6 (1969).

The defendant Belton contends (a) that his proffered plea of Non vult was erroneously rejected, (b) that the trial judge improperly refused to instruct the jury that the defendant had no right to plead guilty to the murder charge against him, (c) that New Jersey Rule 3:7--1(a)--now R. 1:8--1 is unconstitutional insofar as it restricts an accused 'from waiving a jury trial,' and (d) that the Grand Jury which indicted him was improperly chosen. The contentions have no merit. The rejection of the plea of Non vult was within the trial court's discretion and there has been no showing of improper exercise. See State v. Belton, Supra, 48 N.J. 432, 226 A.2d 425. The prohibition against the acceptance of a guilty plea was no concern of the jury and the trial judge properly refused to deal with it in his charge; in any event there was no prejudice since the jury was made fully aware during the very opening by Belton's counsel and thereafter that Belton was admitting his guilt. See N.J.S.A. 2A:113--3; Pressler, supra, R. 1:8--1. The restriction against a unilateral waiver of jury trial by the accused presents no constitutional infirmity. See Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965); Pressler, supra, R. 1:8--1. The attack on the selection of the Grand Jury was grounded entirely on the record in State v. Rochester; it was found there to be groundless and is of course equally groundless here. See State v. Rochester, 105 N.J.Super. 529, 253 A.2d 558 (Law Div.1957) aff'd, 54 N.J. 85, 253 A.2d 474 (1969).

The remaining attacks in the brief filed by Belton's counsel appear to relate not to the issue of guilt but to the death penalty alone. Belton has filed a Pro se brief in which he seeks a dismissal of the indictment against him 'with prejudice.' The points he raises have no merit and call for no expressions beyond those set forth earlier in this opinion. He, along with his co-defendant, had a fair trial with all of the modern protective devices...

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  • State v. Moore
    • United States
    • United States State Supreme Court (New Jersey)
    • January 23, 1991
    ...... We have said that "the admission of photographs having some probative value, even where cumulative . Page 467 . and somewhat inflammatory, rests within the discretion of the trial judge." State v. Belton, 60 N.J. 103, 109, 286 A.2d 78 (1972); see also State v. Thompson, 59 N.J. 396, 420, 283 A.2d 513 (1971) (exercise of trial court's discretion in admitting photographs will not be reversed absent a palpable abuse). Evidence Rule 4 allows the trial court discretion to exclude relevant evidence if ......
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    • United States State Supreme Court (New Jersey)
    • January 17, 1972
    ...served by rejection of the plea and sending the case to the jury. At Belton's trial, as this Court's opinion notes, State v. Belton and Neil, 60 N.J. 103, 286 A.2d 78 (1972), he acknowledged the robbery and the killing and aimed his defense at obtaining a life recommendation from the jury. ......
  • State v. Koedatich
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    • United States State Supreme Court (New Jersey)
    • August 3, 1988
    ...heard or read about the Hoffman case somewhat weakens the argument that the jury was tainted by pretrial publicity. State v. Belton, 60 N.J. 103, 107-08, 286 A.2d 789 (1972). In State v. LaRocca, 81 N.J.Super. 40, 43, 194 A.2d 578 (App.Div.1963), a juror stated in voir dire that she had rea......
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    ......Wise, 19 N.J. 59, 73-74, 115 A.2d 62 (1955). The cases that followed Wise made clear that few defendants succeeded in their efforts to establish a [524 A.2d 140] need to change venue. See State v. Belton, 60 N.J. 103, 107-08, 286 A.2d 78 (1972); State v. Mayberry, 52 N.J. 413, 420, 245 A.2d 481 (1968), cert. den., 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969); State v. Gallicchio, 51 N.J. 313, 318, 240 A.2d 166, cert. den., 393 U.S. 912, 89 S.Ct. 233, 21 L.Ed.2d 198 (1968); State v. ......
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