State v. Gallicchio

• Decision Date: 18 March 1968
• Docket Number: No. A--51,A--51
• Citation: 51 N.J. 313,240 A.2d 166
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Nicholas GALLICCHIO, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 313

51 N.J. 313

240 A.2d 166

STATE of New Jersey, Plaintiff-Respondent, v. Nicholas GALLICCHIO, Defendant-Appellant.

No. A--51.

Supreme Court of New Jersey.

Argued Dec. 5, 1967.

Decided March 18, 1968.

Peter N. Perretti, Jr., Newark, for defendant-appellant.

John W. Noonan, Asst. Prosecutor of Essex County, for plaintiff-respondent (Brendan T. Byrne, Prosecutor of Essex County, attorney; Richard B. McGlynn, Asst. Prosecutor of Essex County, of counsel and on the brief).

The opinion of the court was delivered by

SCHETTINO, J.

Defendant appeals as of right under former R.R. 1:2--1(c) from a conviction of second degree murder and a sentence of 25--30 years. Defendant was indicted under the short-form murder indictment charging him will killing a probationary policeman on October 16, 1965.

Defendant contends that there was error at various stages of the trial and that these errors, either singly or cumulatively, were prejudicial. State v. Orecchio, 16 N.J. 125, 106 A.2d 541 (1954). He therefore seeks reversal of his conviction and a new trial. His 'defense' is alibi, i.e., that he was not at the scene of the shooting at the time it took place.

The facts are as follows. About 12:00 noon on October 16, 1965, the decedent was a passenger in a car driven by a friend, Geramy Spampinato. While driving along Tuxedo Parkway in Newark, they noticed a man standing beside a white Valiant automobile. At the next intersection, while they were stopped, the same white car came up behind them; the driver stopped quickly and the brakes squealed. At a succeeding intersection, the Valiant was still behind them and, at a third intersection, the Valiant bumped Spampinato's car while it was halted for a red light.

The decedent got out of the car and directed the driver of the Valiant to back up. The driver then pulled back to the side of the road. Spampinato turned the corner to find a parking space. Within a minute or two he heard a noise like a shot, ran back to the corner, and saw the Valiant speed off and his friend fall. Spampinato testified that he recognized the car as the Valiant which they had passed shortly before; the driver was the defendant, the man who had been standing beside it. Other lay witnesses testified that they saw a white Valiant being driven by defendant about that time. Two policemen also testified that they had seen a white Valiant in areas nearby the shooting locale; each separately saw a white Valiant and each identified defendant as the driver.

Subsequent to the shooting, defendant was observed in the Reservoir Tavern; a white Valiant was parked across the street from the tavern. Police searched the tavern premises, and a gun was found in the men's room. (Defendant contends that the first search of the men's room revealed no gun). Later ballistic tests proved this to be the murder weapon.

An uncle of the defendant was a member of the Newark Police Department. In testifying for the State he stated that he had participated in a search of the general area after the shooting. He noticed a white Valiant outside the Reservoir Tavern and saw his nephew, the defendant, inside the tavern. He noted that the description of the slayer generally fitted defendant.

The uncle went to police headquarters and, thereafter, he and another policeman, Detective Paul Whitehead, were directed to pick up defendant. They located him at another bar, arrested him, and drove him to police headquarters. When they arrived in front of the headquarters building, Detective Whitehead noticed defendant throw something out the car window. The uncle got out of the car and picked up the object--a set of car keys which fitted the Valiant.

As stated above, defendant's case consisted of alibi. Although defendant did not testify, he produced witnesses who testified that he was, at the time of the crime, elsewhere in the City of Newark. Moreover, he contended both that the description of the murderer given by the witnesses did not fit him, and that over-zealous police activity had produced erroneous identifications.

I

Defendant contends that the trial court erred when it denied a pretrial motion to suppress the use of defendant's prior criminal conviction. (He had been convicted and sentenced to a jail term in 1964 on a charge of atrocious assault and battery). He states that the denial of the motion impelled him not to take the stand.

Defendant submits that because this conviction was for a somewhat similar crime of violence it should have been suppressed. The claim is that the use of the prior conviction would have created a capacity for prejudice far outweighing its probative value on the issue of credibility.

We find no error in the trial court's decision. State v. Hawthorne, 49 N.J. 130, 140--142, 228 A.2d 682 (1967); State v. Burgess, 97 N.J.Super. 428, 435, 235 A.2d 231 (App.Div.1967).

II

Defendant claims error in the trial court's refusal, upon motion, to grant a change of venue or a continuance of the trial from June 1966 to the fall term of 1966. His request was based on alleged prejudicial publicity contained in Essex County newspapers at the time of the killing and defendant's arrest. He contends that the publicity was so massive that it violated the standards set forth in State v. Van Duyne, 43 N.J. 369, 204 A.2d 841, 11 A.L.R.3d 1086 (1964), certiorari denied 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1956), and that he was therefore entitled to relief.

We note that defendant's special appendix, containing photo copies of newspaper stories, ends with December 1965, approximately six months before trial. Defendant does not submit any allegedly inflammatory news items for the period of the trial--June and July 1966. In Van Duyne, the publicity complained of appeared at the time of the trial. And in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), there was 'vicious' publicity beginning from the date of the crime and ending after the trial so that a 'reasonable likelihood' of prejudice had been shown.

We conclude that as trial was held more than eight months after the crime, there was sufficient time for the passions, if any were aroused, to be dissipated. See State v. Trantino, 45 N.J. 37, 40, 211 A.2d 193 (1965), certiorari denied 382 U.S. 993, 86 S.Ct. 573, 15 L.Ed.2d 479 (1966).

We find no error as alleged by defendant on this point.

III

Defendant claims prejudice arising from a certain answer given at the trial by defendant's uncle. The uncle testified that when he first saw defendant at the Reservoir Tavern, he searched defendant's person and found nothing; he then searched the tavern and the men's room, where he also found nothing. The prosecutor asked him what he did next, and the detective's answer was:

'I came out and I waited a while. I thought it best to go down to headquarters to get a gallery picture of the defendant, if any.'

Defendant's counsel moved for a mistrial because of the reference to 'a gallery picture of the defendant, if any.' He contended that these words were prejudicial because they indicated to the jury that defendant had a prior criminal record. The prosecutor stated that he did not know specifically what the detective's testimony would be and admitted that he was surprised by the witness' remarks with reference to the gallery picture.

Defendant's counsel made no objection in the presence of the jury because he felt that to do so would emphasize the inferential point made by him. For the same reason he declined a corrective instruction by the trial court.

The challenged testimony did not indicate any belief that a gallery picture would be available, and thus did not imply that defendant had a prior criminal record. There was, therefore, no error on this point.

IV

Defendant next claims prejudicial error arising out of a police lieutenant's testimony concerning the line-up procedure in this case. The lieutenant testified that three witnesses viewed the line-up. The first was Spampinato, who picked out the defendant. Another witness was called to make the identification, and the police lieutenant stated, in answer to the prosecutor's question as to whether the witness made an identification 'No. But I instructed him if he saw anyone in the lineup he could identify to go over and put his hand on him and point him out and then to state how he was identifying him and why. And before I told him that and before he had a chance to scan the lineup the defendant said 'You might as well go pick me out because everyone else will' and he didn't make any identification.'

Defendant seeks to apply Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to this statement. In State v. Vigliano, 50 N.J. 51, 66, 232 A.2d 129, 137 (1967), Mr. Justice Francis said:

'* * * (W)e hold the view that the (United States Supreme) Court's references to cases commenced and trials begun after June 13, 1966, and to its policy in other cases of application of similar new rules 'in a wholly...