State v. O'Connor

• Decision Date: 22 June 1964
• Docket Number: No. A--121,A--121
• Citation: 201 A.2d 705,42 N.J. 502
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Michael O'CONNOR, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 502

42 N.J. 502

201 A.2d 705

STATE of New Jersey, Plaintiff-Respondent, v. Michael O'CONNOR, Defendant-Appellant.

No. A--121.

Supreme Court of New Jersey.

Argued May 4, 1964.

Decided June 22, 1964.

Albert J. Shea, Hoboken, argued the cause for defendant-appellant.

Gregory J. Castano, Asst. Prosecutor of Hudson County, argued the cause for plaintiff-respondent (James A. Tumulty, Jr., Prosecutor of Hudson County, attorney).

The opinion of the Court was delivered by

FRANCIS, J.

Defendant Michael O'Connor, also known as 'Moon Mullins,' was found guilty of murder in the first degree. The jury recommended life imprisonment and that sentence was imposed. His direct appeal to this Court followed. R.R. 1:2--1(c).

On the appeal defense counsel in his brief alleges a number of trial errors in the admission of evidence, in the failure to grant a mistrial and in the court's charge to the jury. In addition, the defendant himself has filed a memorandum raising some additional issues. Much of his argument relates to the sufficiency of the State's case against him. In reaching our decision, we have given consideration to the matters presented by the memorandum as well as by the brief.

On August 27, 1962 at about 10:30 P.M., Michael Walsh was shot to death in Rocky's Tavern at 373 Palisades Avenue, Jersey City, New Jersey.

The evidence adduced showed that O'Connor and Charles Ross entered the tavern between 6:30 and 7:00 P.M. They sat near the farthest end of the bar from the front door. Sometime thereafter, Michael Walsh and Charles Melley came in. The time was variously estimated by the witnesses as between 6:30 and 8:00 P.M. They took seats near the center of the bar. According to Melley they had spent some time drinking at another bar before they reached Rocky's.

After the four men had been at the bar for a while, according to O'Connor, an unidentified patron came over and told him Walsh had called him 'an over-rated bum.' O'Connor made no answer nor did he say anything to Walsh. A short time later Walsh walked down to O'Connor and had a brief conversation with him. Melley did not hear it but said that before leaving to talk to O'Connor, Walsh said, 'There's a friend of mine.' O'Connor described the incident in this fashion:

'* * * He slapped me on the side heavy-handedly and said 'How are you, Moon?' and I said O.K.' and greeted him and said hello to him and he said, 'How are you doing?' and I said, 'Not so hot' and he said, 'Are you working?' I said, 'No, I'm not doing nothing!' He said, 'Ain't the mob taking care of you?' and I turned around and I said, 'The hell with the mob.' I said, 'They don't want friends. They want stooges.' And he said to me, 'Are you implying that I'm a stooge?' I said, 'No sir, there's nothing personal in that remark.' He said, 'You and I aren't going to fight, are we?' and I said, 'No sir, there's no reason for it,' so then he looked at me and he went back to his place where he was sitting * * *.'

According to Melley, Walsh conversed with O'Connor on two or perhaps three occasions. No one heard any argument or loud talk between them. In his testimony, however, O'Connor indicated there were only two conversations, the one just quoted, and the other immediately preceding the shooting.

Melley was not aware Walsh had left his place at the bar again until his attention was called to the presence of Walsh and O'Connor in the pool table area. The pool table was about halfway between the end of the bar and the men's room at the extreme northerly corner of the tavern. Walsh was standing with his back to the pool table and facing the front of the tavern. O'Connor was about two feet from Walsh and facing him directly. The loud voice which attracted Melley was O'Connor's, who said, 'Do you want me to shoot you?' Melley could not see any weapon but O'Connor's statement was followed almost immediately by a shot. After the shot was fired, Walsh staggered forward toward Melley, 'holding himself.' As he did so, he said, 'I just got it.' O'Connor stood aside and Melley, whose attention was directed toward Walsh, did not notice where he went. Walsh fell to the floor as Melley grabbed for him and yelled, 'Somebody do something,' but the few patrons there were all hurrying out of the place. One John Fisher, who was sitting on the front steps of the tavern, heard the shot and came into the barroom. He telephoned the police. They appeared in a very short time. Walsh was dead and his body was taken to the morgue.

Lawrence Harjes, a witness called by the State, was sitting at the extreme front end of the bar near the entrance door. He heard what sounded like a firecracker and saw people start to run out of the place. Then he observed O'Connor standing in the rear of the room holding a gun which he was moving from left to right. Seeing this, Harjes fled also.

O'Connor's version of the shooting conflicted sharply with Melley's testimony. He said that a few minutes after their first conversation he saw Walsh walking toward him again. He thought Walsh was heading for the men's room but he touched O'Connor and said he wanted to speak to him. O'Connor left the bar and followed Walsh who, when he reached the pool table with O'Connor about two feet from him, turned around and 'the next thing (O'Connor) knew there was a gun in (his) stomach.' Walsh then said, 'I can shoot your guts out and get away with it.' At this, according to O'Connor, he said, 'Why do you want to shoot me?' and simultaneously punched Walsh in the mouth with his left hand. Walsh fell back, off balance, and O'Connor grabbed the hand holding the gun. There was a struggle and the gun went off accidentally. O'Connor then 'ripped' the gun out of Walsh's hand and backed away from him. As he backed toward the front door with the gun in his hand Walsh moved in the same direction 'half backing and half on the side like' until he reached Melley to whom he said something. When O'Connor went out the front door Walsh was still standing.

On leaving the tavern O'Connor headed toward his car which was parked a block away. On the way he saw a refuse can into which he threw the gun and covered it with some of the garbage. He went on to his car and drove to a tavern in Hoboken where he remained until closing time at 2:00 A.M. He slept in the car until morning, bought a paper and read that he was wanted in connection with the homicide. His own description of what he then did is graphic: 'And a man in my position, he runs and I ran.' He sold his car, apparently somewhere in New Jersey, for $85 and went to an undisclosed place in the State of New York. After two weeks he went to Florida but returned to New York about two weeks later. He remained in New York until he was apprehended by the Federal Bureau of Investigation on December 28, 1962. He gave the arresting officer a false name but later admitted his identity when confronted with a photograph. Thereafter he was returned to New Jersey and indicted on two counts, one for murder and the other for manslaughter.

We have not attempted to set out all of the testimony in the case in precise detail. But the basic factual framework has been noted. It makes plain that the question of guilt or innocence depended largely upon O'Connor's credibility.

O'Connor derived some measure of support from his companion, Ross. As one point in his testimony Ross said he saw O'Connor and Walsh facing each other at about arm's length near the pool table. They were not talking loudly enough for him to hear so he paid no further attention to them until he was attracted by a commotion. In another portion of his testimony he asserted he never saw Walsh and O'Connor in the pool room until he heard a commotion. More particularly, he said he heard 'a scuffling like.' It looked to him 'like somebody threw a punch' and then they 'were leaning into each other or pushing at each other.' Then 'it looked like somebody had thrown a punch and I don't know if it was thrown already or if it was the act of throwing it, but it looked like they were both pushing at one another.' Finally he conceded he saw no punch and the court instructed the jury to disregard his surmise. He described the pushing by saying that O'Connor's hands were on Walsh's chest and Walsh's hands were on O'Connor's hips. He thought there was going to be a brawl and so he left the tavern. He did not hear anyone say, 'Do you want me to shoot you,' nor did he see the shooting or a gun.

Ross' testimony is not reconcilable with that of Melley or O'Connor. If what either of the latter two said happened was correct, a jury could well find that it would have been impossible for Ross to have gotten out of the tavern before the shooting occurred. The jury could have inferred that he saw the shooting but because he had been a long-time friend of O'Connor, also known to him as Moon Mullins, he did not wish to reveal his knowledge. Moreover, in assailing his credibility, the State proved that a number of years earlier Ross had been convicted of selling narcotics and sentenced to a year in Alcatraz, California.

In attacking O'Connor's account of the shooting and the struggle allegedly preceding it, the State called Dr. Jonathan C. Gibbs, Jr., the Assistant County Medical Examiner who performed an autopsy on Walsh. He found a hole in the body indicating the entrance of a bullet .15 centimeters below the right nipple and 6 centimeters to the right of the midline. There were no powder marks or burns around the wound. The autopsy showed the bullet had passed through the top part of the gall bladder, through the small intestine and the head of the pancreas, and then through the abdominal aorta, coming to rest in the body of the first lumbar vertebra.

Dr. Gibbs was followed by John P. Brady, the chief chemist and toxicologist for the New Jersey State Police. On August 30, 1962 he was given the decedent's bloodstained clothing for study and chemical analysis. He found a hole in the...