State v. Conyers

• Decision Date: 26 March 1971
• Citation: 275 A.2d 721,58 N.J. 123
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Lamar CONYERS, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 123

58 N.J. 123

275 A.2d 721

STATE of New Jersey, Plaintiff-Respondent, v. Lamar CONYERS, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Nov. 23, 1970.

Decided March 26, 1971.

Arthur Penn, Asst. Deputy Public Defender, for appellant (Stanley C. Van Ness, Public Defender, attorney).

Geoffrey Gaulkin, Hudson County Prosecutor and Gregory J. Castano, Asst. Prosecutor, for respondent (Edwin H. Stern, Chief Asst. Prosecutor, and Armand Pohan, Asst. Prosecutor, on the brief).

The opinion of the Court was delivered by

WEINTRAUB, C.J.

Defendant was convicted of murder in the first degree. The jury not having recommended life imprisonment, the death sentence was imposed. N.J.S.A. 2A:113--4. Defendant's appeal comes directly to us. R. 2:2--1(a)(3).

Defendant asserts errors with respect to both the finding of guilt and the imposition of the death penalty. The State denies there was error in either respect, but, in the words of the State's brief, 'the present Prosecutor feels it incumbent to advise the court that, as a policy matter, he would not seek the death penalty in this matter if it were moved for trial at this time; and also, that he does not seek or desire the execution of the present defendant.' The State adds that it 'is of the opinion that this Court can amend a death sentence to life imprisonment, and should do so in this case.' For the reasons which follow, we conclude the judgment is free from error but the prosecutor's recommendation for modification of the sentence to life imprisonment should be approved and the judgment modified accordingly.

I.

Defendant contends the evidence did not warrant a finding beyond murder in the second degree, and alternatively that the finding of murder in the first degree was against the weight of the evidence.

Defendant raised the issue of the sufficiency of the proof by a motion at the close of the State's case. Defendant argued the State had not carried its burden to prove beyond a reasonable doubt that the murder was perpetrated by 'willful, deliberate and premeditated killing,' N.J.S.A. 2A:113--2, as those terms have been defined, I.e., that a design to kill was conceived, was deliberated upon, and was then willfully executed, see State v. Di Paolo, 34 N.J. 279, 295, 168 A.2d 401 (1961), cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961). Upon that motion, the State was entitled to the most favorable view of its proofs and the reasonable inferences therefrom. State v. Reyes, 50 N.J. 454, 458--459, 236 A.2d 385 (1967). Thus viewed, the State's case was adequate, as the following review will show.

The homicide arose out of a family setting. The victim, Albertus Conyers, Jr. (herein Junior) was defendant's nephew, defendant and Junior's father being brothers. Junior, age 16, was a high school student. It seems undisputed that Junior had kicked (or kicked in) the door at the residence of Ethelee Wooten, whose mother, Duella Jones, is the sister of both defendant and Junior's father; that Mrs. Jones asked defendant to tell Junior to stay away from Ethelee's apartment; that defendant, accompanied by Ethelee's daughter, Vickie, and a nephew, went to Junior's home to deliver a message or an order to that effect.

Junior lived with his parents and a cousin, Adam Singleton. All were home when defendant and his party arrived. The visit began with some good-natured joshing. When defendant said he wanted to talk with Junior, Junior, who was in the bedroom and heard defendant, entered the living room saying, 'You want to see me, Uncle L.C.?' Defendant asked Junior why he had kicked in Ethelee's door, to which Junior answered that he had not, and that the matter was 'straightened out.' Defendant then told Junior that Ethelee did not want him to come to her apartment again. Junior answered that she, and not defendant, should tell him so. After some further words, defendant invitedJunior outside to settle the matter. Junior declined, saying 'I don't have to go downstairs, because I live here.' Defendant replied that he could 'take you over now by dragging you downstairs.' Defendant rose from his chair and ordered Junior to stand up. Junior did not do so until the third such command, whereupon defendant, two or three feet from Junior, drew a gun and fired a single shot into the boy's chest, killing him almost instantly. Defendant ran from the apartment, saying 'I will call the cops. I will call the ambulance. Don't nobody come out,' and when Adam Singleton started for the door to seek help, defendant, with gun in hand, warned Adam, 'Don't come out here; you get it too.'

Defendant, and Vickie and the nephew who had come with him, drove to the office of Joseph Connors, whom defendant knew and who was in the bail bond business. Connors testified that defendant, extremely nervous, said he needed advice because something terrible had happened; that because of a family problem he had gone to his brother's home to make peace; that his nephew 'went at him and he shot him'; that Connors asked defendant for the gun, whereupon defendant handed him the weapon; that when efforts to reach an attorney failed, defendant, on Connors' advice, went with Connors to police headquarters to surrender himself.

The State's case included these additional facts: that when Connors asked defendant 'where he got the gun * * * he told me he used it in his guard's job'; that there was no public record of the purchase, registration, transfer, or theft of the gun; that the gun was fired a minimum of 14 inches from the victim; and finally, that after his indictment for this murder, defendant threatened Adam Singleton and told him not to testify.

In contending the evidence cannot sustain a finding that a design to kill was conceived, deliberated upon, and then willfully executed, defendant starts with the premise that defendant was unexpectedly confronted with resistance by Junior, verbal at least, and that the shooting was an unplanned response to that surpristing development. But on the motion to foreclose consideration of first-degree murder the State was entitled to the most favorable view of its proofs. This being so, the State was not limited to the hypothesis that defendant first contemplated the use of the weapon when Junior defied him, for the jury could infer that defendant came to Junior's home determined to brook no resistance from his nephew and to kill him if need be. The fact that defendant brought a gun with him could be found to support the thesis that he was so minded when he went to the boy's home. We add that this thesis could be aided by a fact defendant himself stresses, that Junior stood about 6 feet 1 inch and weighed some 170 pounds while defendant was 5 feet 7 inches and weighed 140. Upon the facts in the State's case and legitimate inferences from them, we are satisfied the issue of the degree of murder had to be sent to the jury.

With respect to the companion question, whether upon the total record the finding of murder in the first degree was against the weight of the evidence, it must be said that defendant's version of the affair strengthened the case against him.

The most damaging fact in the State's case as to the degree of the homicide was that defendant brought the gun with him. Defendant's statement to Connors that he had the gun because he was employed as a guard offered a basis for negating an inference that he came with a studied design to kill. But at the trial defendant insisted he came unarmed that it was Junior who produced the gun, and that the gun was accidentally discharged and fell to the floor as defendant, unaware of the nawture of the object, sought to restrain the young man. The story just did not mesh with the circumstances, and defendant's claim that after the shot was fired, he picked the weapon from the floor, still not knowing it was a gun, added to the unbelievable quality of his account. Moreover defendant thereby challenged the testimony of Connors that defendant said he had the gun because of his employment as a guard. Indeed, defendant went on to prove that he had not been employed as a guard for some months, and that he had never been authorized to carry a weapon in that employment.

Defendant apparently gambled to seek an acquittal, and in doing so, foreclosed a solid basis for a finding that, armed for some unrelated reason, he reacted suddenly either to his nephew's defiance or to some physical movement which defendant misunderstood. The contrived nature of defendant's account of the fatal affair undoubtedly weighed against him, for the absence of some tolerable explanation with respect to the gun tended to place him in the worst possible role under the proofs, that of a cocky enforcer who went to his nephew's home to put him through some paces and to kill him if he balked.

Indeed one has the feeling that, had defendant stayed with the truth, he might have fared better as to the degree of his crime, and quite likely would have fared better with respect to penalty. But the issue for us is whether, 'having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses,' we must say 'it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice, or passion,' in the words of R.R. 3:7--11(b), the rule which existed when the motion for a new trial was heard, or that, in the words of the present rule, R. 3:20--1, 'it clearly and convincingly appears that there was a manifest denial of justice under the law.' We cannot properly reject the jury's finding that the murder was in the first degree.

II.

Defendant claims a number of errors with respect to the adjudication of guilt. None is substantial.

On cross-examination Junior's father was asked whether he ever had to go to his sister's home 'as a result of being assaulted' by Junior, to which he answered in the negative. The defense later called the sister to testify that on several weekends...