State v. Forcella

• Decision Date: 03 July 1968
• Docket Number: Nos. A--147,A--148,A--164,A--163,s. A--147
• Citation: 52 N.J. 263,245 A.2d 181
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Leo Robert FORCELLA, Defendant-Appellant. The STATE of New Jersey, Plaintiff-Respondent, v. Gabriel ORNES, Jr., Defendant-Appellant. The STATE of New Jersey, Plaintiff-Respondent, v. Israel PEREZ, Defendant-Appellant. The STATE of New Jersey, Plaintiff-Respondent, v. Victor R. FUNICELLO, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 263

52 N.J. 263

245 A.2d 181

The STATE of New Jersey, Plaintiff-Respondent, v. Leo Robert FORCELLA, Defendant-Appellant.

The STATE of New Jersey, Plaintiff-Respondent, v. Gabriel ORNES, Jr., Defendant-Appellant.

The STATE of New Jersey, Plaintiff-Respondent, v. Israel PEREZ, Defendant-Appellant.

The STATE of New Jersey, Plaintiff-Respondent, v. Victor R. FUNICELLO, Defendant-Appellant.

Nos. A--147, A--148, A--163, A--164.

Supreme Court of New Jersey.

Argued June 3, 1968.

Decided July 3, 1968.

Anthony G. Amsterdam, Philadelphia, Pa., for appellants (Joseph Barry, Newark, attorney for appellant Forcella; George Logan, III, and Morton Stavis, Newark, attorneys for appellant Funicello; Jack Greenberg, Michael Meltsner, Jack Himmelstein, and Charles Stephen Ralston, New York City, attorneys for appellants Forcella and Funicello).

Ronald J. Picinich, Hackensack, for appellant Ornes (Charles J. Sakany, Closter, for appellant Perez).

James R. Zazzali, Asst. Prosecutor of Essex County, and Guy W. Calissi, Prosecutor of Bergen County, for respondent (Joseph P. Lordi, Prosecutor of Essex County, attorney, Richard F. Aronsohn, Sp. Asst. Prosecutor of Bergen County, and Harold N. Springstead, Asst. Prosecutor of Bergen County, on the brief).

Richard Newman, Deputy Public Defender, for intervenor, The Office of the Public Defender (Peter Murray, Public Defender, John M. Cannel, Claude J. Minter, Carl R. Soller, and Miriam N. Span, Asst. Public Defenders, on the brief).

John W. Hayden, Jr., Asst. Atty. Gen., amicus curiae (Arthur J. Sills, Atty. Gen., Samuel D. Bornstein, Deputy Atty. Gen., on the brief).

The opinion of the court was delivered by

WEINTRAUB, C.J.

On April 8, 1968 the United States Supreme Court decided United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, declaring invalid a federal kidnapping statute under which a defendant who insisted upon trial by jury could suffer the death penalty. Although our homicide statute levies no such burden on an assertion of the right to jury, nonetheless the thesis of Jackson is arguably so sweeping as to embrace our statute. In a State of seven million inhabitants wherein homicides unhappily are prevalent, the question whether our murder statute is valid, and if not, what part remains, is obviously urgent. We therefore invited a prompt presentation of the issue.

In the Forcella and Funicello matters the issue arises on post-conviction attacks upon judgments of death heretofore affirmed on direct appeal. State v. Forcella, 35 N.J. 168, 171 A.2d 649 (1961), certiorari denied, 369 U.S. 866, 82 S.Ct. 1035,

8 L.Ed.2d 86 (1962); State v. Funicello, 49 N.J. 553, 231 A.2d 579 (1967), certiorari denied, 390 U.S. 911, 88 S.Ct. 837, 19 L.Ed.2d 882 (1968). Other questions raised in those matters will also be considered. In Ornes and in Perez, the Jackson issue is raised by a motion before us to eliminate the death penalty from the forthcoming trial of the indictments. We invited that interlocutory motion to get to the Jackson question, but we declined to accept unrelated issues which Ornes and Perez presented to the trial court.

I.

Jackson involved a simple situation. As construed, the federal kidnapping statute subjected a defendant to the risk of the death sentence if he was tried by jury, but no more than life imprisonment if tried by a judge. Upon that interpretation, it is perfectly plain that the Sixth Amendment right to jury trial was infringed. To impose upon one who pleads not guilty an extra penalty because he insists upon a jury is so patently bad that no more need be said. The statute was held invalid by the trial court in those elementary terms. United States v. Jackson, 262 F.Supp. 716 (D.Conn.1967).

A.

Our homicide statute harbors no such problem. The death penalty does not depend upon whether the not-guilty plea is tried with or without a jury. Indeed the right to trial by jury cannot be waived. R.R. 3:7--1(a). The issue of guilt must be tried by a jury, and the jury alone decides, if the verdict is for first-degree murder, whether the punishment shall be death or life imprisonment, N.J.S.A. 2A:113--4, ¹ and the jury must be unanimous as to punishment.

State v. Reynolds, 41 N.J. 163, 187--188, 195 A.2d 449 (1963), certiorari denied, 377 U.S. 100, 84 S.Ct. 1930, 1934, 12 L.Ed.2d 1050 (1964). Thus, unlike the kidnapping statute involved in Jackson, there is no pressure on one who stands trial to forego his right to a jury.

Our problem arises because under the federal kidnapping statute a defendant could avoid the death penalty not only by waiving a jury, but also by pleading guilty, and the opinion in Jackson speaks of both bases of immunity from the death sentence. If the second basis, i.e., a guilty plea, is itself a separate ground for the result in Jackson, then Jackson may implicate our murder statute, for although our statute expressly prohibits a guilty plea, it does permit the trial court to accept a plea of non vult to the indictment, whereupon the sentence shall be either life imprisonment or the term of years authorized for murder in the second degree. N.J.S.A. 2A:113--3. ² Thus our statute resembles the federal kidnapping act in the respect that if a defendant offers a non vult plea (and it is tantamount to a plea of guilt), he cannot suffer death. But even here our statute is different, for whereas, as we will later point out, ³ the federal defendant had, in practical effect for present purposes, a right to plead guilty under the kidnapping act, the state defendant has no right to plead non vult. The acceptance of As we noted above, the trial court in Jackson found the federal statute contravened the Sixth Amendment Right to jury trial in that a defendant who contested guilt could suffer a greater punishment if he insisted upon his right to a jury. The opinion of the majority of the Supreme Court in Jackson cites Spillers v. State, 436 P.2d 18 (Nev.Sup.Ct.1968), where a statute relating to rape and providing for punishment by imprisonment for not less than 20 years or 'death, if the jury by their verdict affix the death penalty,' was also found to infinge the Right to trial by jury. The dissenting opinion in the Supreme Court in Jackson also speaks solely in terms of The right to jury trial. If the majority in Jackson held only that the Sixth Amendment was violated, Jackson could not reach our statute, for the right to trial by jury is not at all involved when, as under our statute, the quantum of punishment does not turn upon whether the Trial is by a judge or by a jury. This is made clear by a hypothetical case: if a statute provided that the death penalty may be imposed when guilt is found either by judge or by jury, but that life imprisonment is the maximum penalty upon a plea of guilty, it could not be said The right to jury trial is burdened. Such a statute would no more burden that right than it would burden any other Sixth Amendment right relating to the mode or manner of a trial of a contested issue, i.e., 'the right * * * to be confronted with the witnesses against him' or the right 'to have compulsory process for obtaining witnesses in his favor' or the right to the assistance of counsel for his defense. Rather it is the right To defend which the As we have said, under our murder statute the death penalty is not contingent upon whether an accused defends before a jury or before the court alone, and in fact all who defend must do so before a jury. Hence the sole possible challenge to our statute is that it offends the Fifth Amendment in that the provision for a plea of non vult may improperly induce defendants to waive their privilege against compulsory self-incrimination and to submit to a judgment of conviction.

the non vult plea rests in the discretion of the court, and in deciding whether to accept the plea, the judge passes upon the question whether the death sentence would be appropriate, and will refuse the plea if under the circumstances there should be a jury's determination of punishment. State v. Belton, 48 N.J. 432, 226 A.2d 425 (1967); State v. Sullivan, 43 N.J. 209, 246, 203 A.2d 177 (1964), certiorari denied, 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed.2d 477 (1966) hypothetical statute would involve, and that would bring into view the Fifth Amendment privilege against compulsory self-incrimination rather than the Sixth Amendment jury right.

Although the federal statute obviously ran afoul of the Sixth Amendment, yet, as we have noted, the majority opinion in Jackson did speak also of the Fifth Amendment. Since the federal statute was plainly invalid under the Sixth Amendment, of course no more had to be said to strike it down; and if a limitation of punishment upon a plea of guilty would necessarily violate the Fifth, there was no need to rely also upon the Sixth. But a court may deliberately rest a result upon two distinct, independent bases. The question is whether the majority in Jackson did so. As we read their opinion, the two propositions were not separately stated but rather were intertwined, thus suggesting that not all members of the majority were ready to say that a statute which did no more than limit the penalty upon acceptance of a guilty plea must violate the Fifth Amendment.

Thus the majority opinion states the issue in these terms, 390 U.S. at 581, 88 S.Ct. at 1216, 20 L.Ed.2d at p. 138:

'* * * Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert The right to contest their guilt before a jury. The inevitable effect of any such provision is, of course, to Discourage assertion of the Fifth Amendment right not to plead guilty and We have underscored 'the right to contest their guilt before a jury.' As we have already shown, the right to a jury trial is irrelevant to the Fifth Amendment issue, for a defendant who can escape the death penalty by agreeing to contest guilt before a...