State v. Funicello
| Citation | 49 N.J. 553,231 A.2d 579 |
| Decision Date | 19 July 1967 |
| Docket Number | No. A--82,A--82 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Victor R. FUNICELLO, Defendant-Appellant. |
| Court | United States State Supreme Court (New Jersey) |
James T. Clare, Newark, for defendant-appellant.
George A. Franconero, Asst. County Prosecutor, for plaintiff-respondent (Brendan T. Byrne, Essex County Prosecutor, attorney).
The opinion of the court was delivered by
The Essex County Grand Jury returned an indictment against the defendant Victor R. Funicello charging that on April 5, 1965 he murdered Fred Palmarozza in the City of Newark. At his trial before a jury, which began on January 5 and ended on January 31, 1966, the State sought the death penalty. At the conclusion of the testimony and the summations of defense counsel and the assistant prosecutor, the trial judge delivered a thorough charge which contained a fair and comprehensive review of the facts as well as a precise outline of the legal issues to be determined by the jury. The jury was advised as to the verdicts which could be reached depending upon the conclusions reached on the evidence. The verdicts were: (1) not guilty; (2) first degree murder, either as (a) felony murder, i.e., the killing occurred during the course of a robbery; or (b) murder which was premeditated, deliberate and wilful, and in connection with the two types of first degree murder, the further instruction was given that if guilt of either one of them was found, the jury should decide whether to recommend life imprisonment, and the jurors were told that if such a recommendation were not made the defendant would suffer death; (3) second degree murder; and (4) manslaughter. In addition the court submitted to the jury with consent of counsel a memorandum listing the possible verdicts, with the suggestion that upon reaching a verdict a check be placed alongside the offense of which guilt was found or alongside not guilty, if that was the conclusion. The jury returned a unanimous verdict of guilt of felony murder without a recommendation of life imprisonment. Thereupon, the defendant was sentenced to death. Direct appeal to this Court followed. R.R. 1:2--1(c). Certain trial errors are alleged as a basis for reversal, the primary one being that defendant's oral and written confessions were involuntary and should not have been received in evidence. In our judgment the confessions were properly admitted, the defendant received a scrupulously fair trial, and the evidence overwhelmingly supports the jury finding of guilt of first degree murder.
Fred Palmarozza, age 60 years at the time of his death, operated a used car lot under the name of Palmer Motors at 687 South 14th Street in the City of Newark, N.J. There was a small frame structure on the lot which was used as an office. It contained a desk, chairs, a couch, a television, telephone, and other incidental equipment and articles.
On April 6, 1965 at about 9:30 A.M., Otto Weil, a business associate of Palmarozza's, came to the office on the used car lot. The door was open a little and he went in and saw the body of Palmarozza in the right rear corner of the room. It was in a pool of blood and in a partially sitting position propped against the wall with the left arm resting on a chair. He called the police immediately, and after they arrived he noticed that a 1963 Ford two-door hardtop was missing from the lot. Four Newark police officers responded within a few minutes; one of them called the Homicide Squad and shortly thereafter Lieutenant Kinney, Sergeant Buerle and Detective Leonardis of that squad arrived. a Series of photographs were taken and the body was removed to the morgue. In looking around the office, Sergeant Buerle found an order book showing that on March 30, 1965 Victor Funicello had made a five-dollar deposit on the missing Ford. The book showed the purchase price as $1600, and contained a further notation 'V.F. 4--8--65.' Buerle also found a copy of a receipt written on the back of a piece of carbon paper. It was dated April 5 and referred to a 1963 two-door Ford, giving the serial number. The price $1600 also appeared with the notation 'paid in full,' followed by Palmarozza's signature, and farther down, the signature of Funicello. One of the officers discovered in the waste basket an incomplete application for passenger vehicle registration bearing the name Victor R. Funicello. A five-dollar bill was picked up, but no other 'real money' was located.
At 2 P.M. April 6, the County Physician, Dr. Edwin H. Albano, performed an autopsy. It revealed that the victim had suffered 11 stab wounds, 24 cutting wounds, and one lacerated wound. The wounds were scattered over a wide area of the body. There were eight cutting wounds of the scalp distributed over the left side of the head, one on the right side of the forehead, one on the right side of the face, a stab wound four inches in depth on the right side of the neck, as well as a cutting wound on that side of the neck, another stab wound almost as deep on the left side of the neck, a stab wound of the right side of the face, 2 1/2 inches deep, a cutting wound in front of the right ear and below the right jaw, a stab wound of the right flank which entered the abdominal cavity, another on the outer aspect of the right thigh and two more on the outer aspect of the right leg. There was a stab wound 4 1/2 inches deep of the left chest which perforated the outer wall of the left side of the heart; two more deep stab wounds of the right chest which penetrated the lung were found. Death was caused by the stab wounds of both sides of the chest, the neck and the abdomen, with hemorrhage into both chest cavities and into the sacs surrounding the heart. One wound which would have caused immediate death was the one in the left side of the chest which perforated the lateral wall of the heart. From the nature, location and direction of the wounds it was the doctor's opinion that they probably had been inflicted by a person who was left-handed. It appeared later that the defendant is left-handed.
Some of the wounds the doctor found he described as 'defense wounds.' They were a cutting wound of the web between the index and middle fingers of the right hand, another of the palm of that hand just below the thumb, a third on its palmar aspect, a fourth through a joint of the fourth finger, a part of the bony structure protruding through the wound opening, and fifth, a cutting wound on the outer aspect of the right arm. Experience had shown that such types of wounds are inflicted while the victim is trying to defend himself. Specific reference is made to these multiple knife wounds to indicate that Palmarozza did not easily give up his life. In this connection it may be noted also that there were gross marks of spattered blood on the walls and particularly on the floor of the victim's office, indicative of a struggle that took place there.
At about 3 A.M. on April 6, Funicello, then 24 years of age, appeared at the home of Mrs. Estelle Lichen in Jackson Township, Ocean County, New Jersey, Mrs. Lichen and her family, particularly her daughter Michelle, had been friends of his for 11 or 12 years. Funicello was fond of fishing and frequently came to the Lichen home very early in the morning. So Mrs. Lichen admitted him and told him he could sleep upstairs in the room of one of her sons. Early the following morning, he told her and her daughter that he was in trouble. Specifically he said he had made a five-dollar deposit on a 1963 Ford car he intended to buy from Palmer Motors. The price was $1600, and on the previous day while alone and on the way to complete the transaction he stopped at the Clinton Diner where he met a man he knew only as Tony. He did not know Tony's last name nor where he lived. He told Tony about the impending car purchase and asked if he wanted to go along. Tony agreed and they drove to the lot, where Funicello gave the seller the $1600. After the seller had made out the bill of sale and a receipt for the money, Tony put the office light out and started to stab Palmarozza. Funicello tried to stop the stabbing and succeeded finally in wresting the knife from Tony, cutting one of the fingers of his left hand in doing so. Funicello said he 'panicked' then, ran out, got in the Ford car (which had Palmarozza's dealer registration plates on it) and drove away, eventually reaching the Lichen home. He said also that at some time during the fracas Tony had taken the $1600 from the office desk; he did not say just when or how he saw it in the dark.
Funicello told the Lichens that he had gotten sick because of the sight of the stabbing and had vomited on his clothes. So he asked Mrs. Lichen to wash his shirt and trousers. She did so during the course of the day, using the washing machine, but denied at the trial that she saw any blood on them. She said she smelled vomitus but saw no evidence of it. Funicello asked the Lichens also to buy him a shirt, trousers, a pair of socks and shoes when they went shopping, and gave them $20 for the purpose. The daughter made these purchases. While they were out Funicello drove the Ford car, which had been parked in the street, into the Lichens' garage.
Funicello remained there on April 6 and until 10:30 or 11 P.M. on April 7. They read in the paper about the murder and the story indicated the police were looking for the 1963 Ford car. Discussion ensued about his reporting to the police. Although he had shown Michelle Lichen the bill of sale for the car, she testified that he was nervous about the car and decided to abandon it somewhere. About 11 P.M. on April 6 he drove the car to Freehold, removed the ignition keys and abandoned it on a side street, where a Freehold police officer found it at 5:00 the next morning. Michelle followed him in her car and drove him back to her mother's home. It appeared later that on the way back Funicello threw the...
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