State v. Daniels

• Decision Date: 18 July 1962
• Docket Number: No. A--119,A--119
• Citation: 38 N.J. 242,183 A.2d 648
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Lee DANIELS, Jr., Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 242

38 N.J. 242

183 A.2d 648

STATE of New Jersey, Plaintiff-Appellant, v. Lee DANIELS, Jr., Defendant-Respondent.

No. A--119.

Supreme Court of New Jersey.

Argued May 14, 1962.

Decided July 18, 1962.

Brendan T. Byrne, Essex County Prosecutor, for plaintiff-appellant (Peter Murray, Assistant Prosecutor, of counsel and on the brief).

Geoffrey Gaulkin, Newark, for defendant-respondent.

The opinion of the court was delivered by

HALL, J.

On March 18, 1959 the defendant shot and killed his mother and wounded his sister in a small luncheonette operated by the mother on Waverly Avenue in Newark. He was indicted for murder and originally entered a plea of not guilty in the Essex County Court. Michael Breitkopf, Esq., a practitioner of long years of experience both as an assistant prosecutor and on the side of the defense in criminal matters, was assigned to represent him. On June 22, 1959 defendant changed his plea to Non vult, N.J.S. 2A:113--3, N.J.S.A. At the same time he entered similar pleas to indictments for atrocious assault and battery arising from the shooting of his sister and for armed robbery of a tavern and larceny of two automobiles. The latter crimes were committed about 24 hours before the shooting episode. On July 10, 1959 he was sentenced to life imprisonment on the murder charge. Sentences were also then imposed on the other charges, to run concurrently with the life sentence except that of 10 to 15 years for the robbery which was made consecutive thereto.

More than a year later Daniels filed a Pro se application for Habeas corpus. Present counsel was assigned, who we may say has represented his client with great diligence and ability. The application was then very properly molded into a motion in the original criminal cause to withdraw the Non vult plea to the murder charge under R.R. 3:7--10(a). No attack was made on the pleas to the other indictments. The County Court (not the judge who accepted the pleas and imposed sentence) held a full hearing and concluded that the defendant should be permitted to withdraw the plea and stand trial. The State has appealed under claim of right. The matter comes to us directly because the indictment was for murder. R.R. 1:2--1(c).

Defendant has raised a preliminary issue that the order is interlocutory and not appealable without leave. His motion to dismiss on that ground was held pending argument on the main case.

I.

We will treat this procedural point first. The State's right to appeal in criminal cases is a limited one. The only rule dealing with interlocutory appeals is R.R. 1:2--4(c), effective September 11, 1961:

'In any criminal cause the plaintiff may appeal to the appropriate appellate court:

(1) from an interlocutory order entered before trial, Upon leave granted by the appellate court * * *.' (Emphasis added.)

Defendant suggests that this appeal 'would seem to be squarely within the intendment' of this rule since the order comes before a litigated trial in the case and permits the case to proceed to such a trial for the first time. We agree. Defendant presses his motion to dismiss, however, because the required leave of this court wsa not first obtained.

The State counters the motion by first urging that the matter should be treated as a Habeas corpus proceeding, it having been originally instituted Pro se in that form. In such event, the State has an absolute right of appeal where a discharge from custody as ordered because Habeas corpus is not merely a further step in the criminal cause out of which it originates, but an independent civil proceeding with the order for discharge being the final judgment therein. State v. Rivers, 16 N.J.Super. 159, 84 A.2d 16 (App.Div.1951). The difficulty with the argument is that Habeas corpus does not properly lie in the instant situation since defendant did not seek, nor would he be entitled in any event to, a discharge from custody--an indispensable prerequisite to the writ in its traditional application. In re Kershner, 9 N.J 471, 88 A.2d 849 (1952), cert. den. Kershner v. State, 344 U.S. 844, 73 S.Ct. 59, 97 L.Ed. 656 (1952). ¹

The State further points out that this court accepted and decided the State's appeal, without leave first obtained, in the somewhat similar case of State v. Rosania, 33 N.j. 267, 163 A.2d 139 (1960) and that the prosecution merely followed the procedural course seemingly approved there. That case, however, arose before the promulgation of R.R. 1:2--4(c); moreover, the question of appealability was not raised and we expressly passed over all adjective problems in order to decide a case of important public interest on the merits. 33 N.J., at p. 273, 163 A.2d 139. Also cf. State v. Levitt, 36 N.J. 266, 176 A.2d 465 (1961).

Alternatively the State asks us to treat its notice of appeal as an application for leave since it was filed within the 10-day period prescribed by R.R. 1:2--3 for motions for permission to appeal from an interlocutory order. We think we should accede to this request. R.R. 1:2--4(c) had just become effective and the prior practice had not been definitively stated. The case is an important one and we would have granted leave had it been applied for at the time. Defendant's motion to dismiss is therefore denied and we shall proceed to decide the matter on the merits.

II.

Defendant's position on the merits before the County Court, and here, is best stated in the language of his brief:

'* * * defendant sought to establish two basic and interrelated facts. First, he sought to establish that his assigned counsel had not fully investigated his background, particularly his history of mental illness, and was therefore unable to counsel him adequately as to the availability of possible defenses or the wisdom of pleading Non vult. Second, defendant sought to establish that he has colorable defenses to the crime charged, and that in justice and good conscience he should be permitted to put his case to a jury.'

The scope of the first contention was perhaps somewhat expanded by defendant's testimony at the hearing that his counsel did not fully explain the alternatives and possibilities open to him even on the basis of the allegedly inadequate extent of the attorney's background knowledge. Daniels further testified that he did not understand that the plea of Non vult would expose him to the possibility of a life sentence.

The County Court judge took quite a different tack in reaching his conclusion. He said:

'It is my determination that the impact upon the mind of the defendant by constant reference to the death penalty during his consultation with counsel, may well have placed him in such fear of death by execution that any other consideration as to the defense of the charges with which he was confronted were quickly cast aside by him * * *.

Under the facts and circumstances leading up to and surrounding the plea in question, I am satisfied that Reasonable doubt exists as to the free function of defendant Daniel's mind at the time he consented to plead Non vult. In view of this, I must resolve the doubt in favor of defendant and determine that he has suffered manifest injustice with the entry of the plea of Non vult to the indictment in question.' (Emphasis added.)

He further found that defendant possessed colorable defenses to the crime and that there would be no prejudice to the State in permitting a trial at this late date.

Where the withdrawal of a plea is sought After sentence, the criterion of R.R. 3:7--10(a) is that such action shall only be permitted 'to correct manifest injustice.' The burden of proof is definitely on the applicant and requires a 'strict showing.' This rule is dictated by the interest of finality of judicial procedures, especially in the light of all the safeguards required by our rules (R.R. 3:5--2; Criminal Procedure Form No. 13A) to protect against a guilty or Non vult plea's being originally made other than truthfully, voluntarily and understandingly. State v. Deutsch, 34 N.J. 190, 198, 201, 168 A.2d 12 (1961); State v. Fischer, 38 N.J. 40, 183 A.2d 11 (1962). See also State v. Wall, 36 N.J. 216, 176 A.2d 8 (1961); State v. Camp, 35 N.J. 57, 171 A.2d 97 (1961), cert. denied 368 U.S. 881, 82 S.Ct. 131, 7 L.Ed.2d 81 (1961); Goodlet v. Goodman, 34 N.J. 358, 372, 169 A.2d 140 (1961), cert. denied 368 U.S. 855, 82 S.Ct. 92, 7 L.Ed.2d 52 (1961); State v. Schrier, 30 N.J. 241, 152 A.2d 578 (1959); State v. Magonia, 25 N.J. 95, 101, 135 A.2d 184 (1957); State v. Gailes, 64 N.J.Super. 232, 240--241, 165 A.2d 814 (App.Div.1960); State v. Torzillo, 61 N.J.Super. 253, 160 A.2d 511 (App.Div.1960); State v. Nicastro, 41 N.J.Super. 484, 125 A.2d 433 (Cty.Ct.1956); State v. Oats, 32 N.J.Super. 435, 108 A.2d 641 (App.Div.1954).

Applications to withdraw a plea are by their very nature within that class of matters addressed to the exercise of the court's discretion. State v. Deutsch, supra. By this is meant discretion founded on the facts and the applicable law and not simply an undisciplined whim. The concept has particular meaning in connection with the scope of review on appeal, for it is axiomatic that a trial court's conclusion in such situations will not be upset unless there has been a so-called 'abuse' of discretion. Courts use that term not in the sense of an invidious motivating influence, but rather in the connotation of a 'mistaken' exercise--i.e., 'that the courts' ruling went far enough from the mark to become reversible error.' Hager v. Weber, 7 N.J. 201, 213--214, 81 A.2d 155, 161 (1951); Smith v. Smith, 17 N.J.Super. 128, 85 A.2d 523 (App.Div.1951), cert. denied 9 N.J. 178, 87 A.2d 387 (1952). See Fanwood v. Rocco, 59 N.J.Super. 306, 315, 157 A.2d 712 (App.Div.1960), affirmed 33 N.J. 404, 165 A.2d 183 (1960).

Here we think the County Court did stray too far from the mark, primarily because the wrong standard was used in appraising the proofs. It turned the application on a conclusion of 'reasonable doubt' as to the free...