State v. Conforti

• Decision Date: 03 February 1969
• Docket Number: No. A--55,A--55
• Citation: 250 A.2d 6,53 N.J. 239
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Frank J. CONFORTI, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 239

53 N.J. 239

250 A.2d 6

STATE of New Jersey, Plaintiff-Respondent, v. Frank J. CONFORTI, Defendant-Appellant.

No. A--55.

Supreme Court of New Jersey.

Argued Dec. 5, 1968.

Decided Feb. 3, 1969.

Archibald Kreiger, Asst. Prosecutor of Passaic County, for plaintiff-respondent (John G. Thevos, Passaic County Prosecutor, attorney).

Joseph J. Vanecek, Paterson, for defendant-appellant (George L. Garrison, Clifton, on the brief).

The opinion of the court was delivered

PER CURIAM.

This is an appeal from a jury verdict of murder in the second degree. The State had sought a capital verdict of first degree murder.

The following facts were proved at the trial: Defendant contracted to sell his tavern to a corporation consisting of the two sisters and the so-called 'common-law wife' of the deceased Roy Holloway. Although Holloway was the real purchaser, he did not take the license in his name due to a then-recent conviction of illegal possession of untaxed alcohol. The closing date stated in the contract was June 15. However, the contract also provided for closing on or about the day following receipt of the transfer of the liquor license and issuance of a restaurant license by the City of Paterson. The transfer of the liquor license was accomplished on June 10. On that date the parties inventoried the stock, and Holloway, at defendant's suggestion, took actual possession, although there had been no transfer of the lease of the premises or final closing. Defendant worked for Holloway in the bar that night and the next day. On June 13, he demanded the balance of the money due him, having already received, in addition to the initial contractual down payment, $100 from both Holloway and his lawyer for the same utility deposit. Holloway's attorney advised that no further payments would be forthcoming until final settlement. There was no closing on June 15. On June 16, the date of the killing hereafter detailed, defendant had been out of possession since June 12 and had received only $500 cash, plus $200 for utility deposit on account of the purchase price of $5,000.

On the evening of June 16, Holloway and defendant entered the bar at about 8 o'clock. They talked for a 'couple of seconds.' Then defendant, who had lived in the building until shortly prior to this date, went to the bar and asked for his mail. He received it and left. When he returned some fifteen or twenty minutes later, he inquired of deceased, 'Roy are you buying?' Upon Holloway's affirmative reply, the two had a drink together. Defendant downed a shot of whiskey, drank half of his beer and left. A few minutes later he reappeared in the doorway, carrying a shotgun which he aimed at Holloway from a distance of ten or twelve feet. Holloway said 'watch out,' then a load of birdshot hit him in the shoulder and spun him around. He staggered toward defendant, who took deliberate aim and fired again, blowing a three by four inch hole in Holloway's head.

Defendant ran out of and to the rear of the building, ejecting two shells from the gun. He disappeared behind the building for a few minutes. The bartender and two of the three customers, who were present during the foregoing, fled from the building. The third customer hid in the men's room. Defendant reappeared carrying the shotgun, approached the entrance to the tavern, looked around and re-entered. The police having been called, Detective Callahan arrived within a few minutes. When he entered he found the barroom deserted except for defendant and the profusely bleeding body of Holloway. Defendant was behind the bar with the double- barrelled shotgun pointed at the door. Crouching behind the corner of a pool table, the detective rested his revolver on the top and told defendant to drop the gun. He said, 'I don't want to kill you.' Defendant, pointing the gun at the officer, replied 'I know you are a Detective Policeman.

I am not angry with the cops. I don't want to hurt you and I don't want you to hurt me.'

There ensued the following conversation,

'Frank, put the gun down. You already hurt one man. I don't want you to hurt me.'

'Allright, Mr. Callahan, I know you won't hurt me.'

Defendant put down the gun and raised his hands. Callahan removed two live 12-gauge shells from the gun. Eight more were removed from defendant's trouser pockets and 26 more were later found in his car, parked alongside the tavern. Defendant offered no resistance as he was escorted to the police car. Callahan testified that, on the way to the police station, he inquired of defendant what the trouble was and

'he said that these people had bought the tavern from him. They only paid him part of the money. He was down to try to collect the rest of it. They were laughing and making jokes. They weren't going to pay me.

* * * he had been there on several occasions to try to collect the rest. Every time he went down there they made a big joke of his trying to collect the money.'

Defense counsel admitted in his opening that defendant had killed the deceased, and he rested the defense on his client's alleged insanity at the time of the homicide. As above noted, he was convicted of murder in the second degree.

Defendant's appeal is five-pronged. He argues for a reversal on the asserted grounds that:

I. The court committed reversible error by refusing to charge that, if the jury were to acquit defendant by reason of insanity and to specifically find that the insanity continued to the time of trial, he would be automatically committed to the state hospital until restored to reason.

II. The verdict of second degree murder was a compromise verdict and unsupported by the evidence.

III. The court committed reversible error by admitting photographs and incidental testimony relating to the nature of victim's injuries when defendant admitted the shooting and killing and four eyewitnesses testified as to its details.

IV. The court committed reversible error by refusing to strike the testimony of one of the State's medical experts because of the doctor's misstatement of the M'Naghten Rule.

V. Defendant was prejudiced by the court's perfunctory dismissal of prospective jurors on the sole ground that they were opposed to capital punishment.

The grounds so argued will be considered in the above order. Defendant contends that:

I.

The court committed reversible error by refusing to charge that, if the jury were to acquit defendant by reason of inanity and to specifically find that the insanity continued to the time of trial, he would be automatically committed to the state hospital until restored to reason.

The Appellate Division in State v. Bell, 102 N.J.Super. 70, at p. 75, 245 A.2d 370, at p. 373 (App.Div.1968) cert. denied 52 N.J. 485, 246 A.2d 447 (1968) stated:

'* * * we decline to adopt the minority view, as exemplified by Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (D.C.Cir.1957), certiorari denied 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958), 362 U.S. 943, 80 S.Ct. 809, 4 L.Ed.2d 771 (1960), 368 U.S. 992, 82 S.Ct. 610, 7 L.Ed.2d 529 (1962), that a jury must be informed of the consequences of a verdict of not guilty by reason of insanity unless the defendant specifically requests otherwise. See also Taylor v. United States, 95 U.S.App.D.C. 373, 222 F.2d 398 (1955); McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847, 851 (1962). Compare Pope v. United States, 298 F.2d 507 (5 Cir.1962), certiorari denied 381 U.S. 941, 85 S.Ct. 1776, 14 L.Ed.2d 704 (1965). Generally speaking, the jury's duty, as distinguished from that of the court, is to decide the issue of defendant's guilt or innocence. The defense of insanity does no more than present a question for the jury's consideration in determining that issue. State v. Ordog, 45 N.J. 347, 371, 212 A.2d 370 (1965), certiorari denied 384 U.S. 1022, 86 S.Ct. 1942, 16 L.Ed.2d 1025 (1966). After the jury has made its determination it becomes the duty of the court, with minor exceptions not relevant here, to impose sentence or make such other disposition as is required by law. In making its determination the jury should not be influenced by consideration of what will be the result of its verdict, nor should its attention be distracted from its chief function. Pope v. United States, supra; State v. Hood, 123 Vt. 273, 187 A.2d 499, 11 A.L.R.3d 732 (Sup.Ct.1963); State v. Park, 159 Me. 328, 193 A.2d 1, 5 (Sup.Jud.Ct.1963). See also Annotation, 'Criminal Case--Instructions--Insanity,' 11 A.L.R.3d 737 (1967). Cf. State v. White, 27 N.J. 158, 170--178, 142 A.2d 65 (1958).'

The foregoing quoted portion of the Be...