State v. Landeros, A--28
| Decision Date | 21 November 1955 |
| Docket Number | No. A--28,A--28 |
| Citation | 118 A.2d 524,20 N.J. 76 |
| Parties | STATE of New Jersey, Plaintiff-respondent, v. Albert Herman LANDEROS, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Morton Stavis, Newark, for appellant (J. Mercer Burrell, Newark, attorney).
Chester A. Weidenburner, Asst. Pros. of Union County, Linden, for the State (H. Russell Morss Jr., Pros., Elizabeth, and Hyman Isaac, Asst. Pros., Elizabeth, attorneys).
The opinion of the court was delivered by
The principal issue in this appeal is whether, on the record before us, it 'clearly and convincingly appears' that the verdict of 'guilty' returned by the jury was so contrary to the weight of the evidence as to be 'the result of mistake, partiality, prejudice or passion.' See R.R. 1:5--1(a).
The indictment charges that on January 30, 1953 in Westfield, Union County, the defendant had carnal knowledge of the complaining witness forcibly and against her will. From the judgment of conviction the defendant appealed directly to this court, we having granted certification in advance in view of the relationship between the instant case and State v. Landeros, 20 N.J. 69, 118 A.2d 521 (decided November 21, 1955).
The complaining witness at the time of the attack was a girl 19 years of age and 21 at the time of trial. The rape itself was established by her uncontradicted testimony, corroborated by a physician who examined her shortly thereafter.
The guilt or innocence in this case, as it so often does in this classification, hinges almost solely on the identification of the defendant as the perpetrator of the crime.
The following is a synopsis of the testimony for the State and the defense.
The complaining witness testified that at approximately 10:15 p.m. on the evening of January 30, 1953, she, unaccompanied, left a soda parlor and was walking on Broad Street, Westfield, in the direction of her home. She observed a colored man approaching, about 5 feet 8 in height, wearing a 'bee-bop' hat, a short, close-fitting jacket and light pants. He was wearing old shoes and the collar of his jacket had markings across the front.
As she passed him she became 'kind of frightened' and started to go off the sidewalk. He walked past but whirled around, grabbed her, placing his hand over her face, and dragged her about 100 feet into a vacant lot. He demanded money of her and after she gave him what money she had, he then proceeded to commit the rape. The lurid details will be omitted.
She had an opportunity to observe her assailant's face when he was perpetrating the crime and noticed he had a mustache. She observed his hand and noticed he was wearing a double-banded wedding ring. At the trial she unhesitatingly and definitely identified the defendant as the man who had committed the attack.
On cross-examination it developed she had seen the defendant on two occasions after the attack, the first on February 3, 1953--four days later--when she was taken by Westfield police to Belle Mead, where the defendant was employed. There she failed to identify him as her assailant. She was unable to recall the details of that confrontation but acknowledged she had felt his hands and observed he wore a wedding ring.
Concededly, her testimony as to the Belle Mead incident was vacillating and uncertain and undoubtedly affected her credibility in so far as her identification of the defendant was concerned. Thus, she testified that at Belle Mead she had recognized the defendant's voice as that of her attacker and had communicated this fact to the police officers who accompanied her. Subsequently she reversed herself in this respect and said she had not given any indication to the police officers that she could identify the defendant but attempted to say she had communicated this information to a friend, which testimony was, of course, stricken.
She next saw the defendant on March 9, 1953 at the police station in Rahway. He had been taken into custody the day before in connection with an attack upon another woman and the Rahway police had sent out a teletype saying they had in their custody a man who had been arrested for attempted rape. The complaining witness was taken to the Rahway jail by Westfield police officers, where she immediately recognized and positively identified the defendant as he was led down a hall toward her.
Detective Duelks of the Westfield Police Department, who accompanied the complaining witness to Rahway, testified the identification was made of the defendant while he was standing five feet away from the complaining witness and the defendant did not attempt in any way to deny the accusation but remained silent.
With the exception of the testimony of the physician who attended the complaining witness, this comprises practically all of the evidence produced by the State in its effort to prove the allegations in the indictment.
The defense was an alibi. The defendant testified that on the night in question he was working at Ronnie's Garage in Scotch Plains welding manifolds for racing cars. He was there from approximately 7 p.m. until after 11 p.m. that night. He was regularly employed at Belle Mead and had a second job cleaning offices in a building, but on the night in question he was working in Ronnie's Garage under an arrangement whereby the garage owner permitted him to repair his own automobile in return for which he put in the same number of hours working on automobiles for the owner.
The defendant's alibi was supported by three witnesses, John Rogerson, Louis Yanotta and Michael Fiore. They were all working in Ronnie's Garage on the night in question and testified the defendant was there working on cars during the entire evening and did not leave until 11 p.m. These witnesses had known the defendant for only a period of two weeks prior to the incident itself and each described a reason for his ability to recall the night in question.
Rogerson was entered in a race at Kingsbridge Armory the following evening, January 31, which was a Saturday. He recalled the defendant on Friday night, January 30, helping him get his car ready for the race.
Yanotta testified January 30 was his birthday and he had taken a piece of birthday cake to the garage, giving it to one of his friends. He likewise said the defendant was at the garage until 11 p.m.
Fiore recalled the incident of the birthday cake and corroborated the other witnesses.
A fourth witness, the garage owner, was not present on the night in question. He testified that through his manager arrangements had been made with the defendant whereby he would be permitted to use the garage and that his manager had made a report on the basis of which the witness made an entry in his books as follows: 'Landeros, OSL 26--30 repairs to racer body and exhaust, to repay by use of shop for repairs on Chrysler.' He said the numerals '26--30' referred to the dates January 26 through January 30. Clark, the manager, who was supposed to have been present on the night of January 30, was not called because he could not be located.
As to the confrontation at Belle Mead, the defendant testified he was called from his work to meet the complaining witness. He was asked whether he spoke any Spanish or Portuguese and if he walked with a limp, both of which he answered in the negative. He was asked to hold out his hands and the complaining witness rubbed them, a fact which she confirmed in her testimony. He was then asked whether he had an Air Force jacket with a fur collar and he replied he did not but that he had a Navy foul weather jacket. He was sent to get the jacket and returned, put it on and walked up and down in front of the complaining witness. He said she shook her head and said, 'No,' indicating he was not the man.
Concerning the Rahway identification, he testified he was brought into a room where the complaining witness was and one of the detectives pointed to him and said: 'That's the man, isn't it?' to which the complaining witness replied, 'Yes.' He admitted his silence following this identification but explained it by saying he was not asked to...
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...statement was voluntary. The purport of her testimony and her credibility were clearly matters for the jury. See State v. Landeros, 20 N.J. 76, 84, 118 A.2d 524 (1955); State v. Walker, 37 N.J. 208, 219, 181 A.2d 1, cert. denied, 371 U.S. 850, 83 S.Ct. 89, 9 L.Ed.2d 86 (1962). The supposed ......
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...there is an inescapable conclusion of obvious error by the jury. State v. Welsch, 29 N.J. 152, 148 A.2d 313 (1959); State v. Landeros, 20 N.J. 76, 118 A.2d 524 (1955), certiorari denied 351 U.S. 966, 76 S.Ct. 1025, 100 L.Ed. 1486, The finding of guilt here obviously must rest on the oral an......
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State v. Butler, A--72
...the defendant was already under arrest or in custody (see State v. Picciotti, 12 N.J. 205, 209, 96 A.2d 406 (1953); State v. Landeros, 20 N.J. 76, 84, 118 A.2d 524 (1955), certiorari denied 351 U.S. 966, 76 S.Ct. 1025, 100 L.Ed. 1486 (1956), Habeas corpus denied Application of Landeros, 154......
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