State v. Laws, A--72

CourtUnited States State Supreme Court (New Jersey)
Citation51 N.J. 494,242 A.2d 333
Docket NumberNo. A--72,A--72
PartiesThe STATE of New Jersey, Plaintiff-Respondent, v. Horace Nelson LAWS, Defendant-Appellant. The STATE of New Jersey, Plaintiff-Respondent, v. John WASHINGTON, Defendant-Appellant. . Re
Decision Date06 May 1968

Charles L. Bertini, Wood Ridge, for appellant, Horace Nelson laws.

Gerald E. Monaghan, Hackensack, for appellant, John Washington.

Guy W. Calissi, Bergen County Prosecutor, for respondent, State (Richard F. Aronsohn, Sp. Asst. Prosecutor, on the brief).

William J. Brennan, III, Deputy Atty. Gen., for Arthur J. Sills, Atty. Gen., amicus curiae (Alan B. Handler, First Asst. Atty. Gen., and Joseph A. Hoffman, Asst. Atty. Gen., of counsel).

The opinion of the court was delivered by


The defendants were convicted of murder in the first degree and were sentenced to death. They appealed to this Court and after full consideration we found that their guilt was firmly established in a fair trial free from prejudicial error, apart from a single error which bore not on guilt but on the death sentences alone. 50 N.J. 159, 187, 233 A.2d 633 (1967). At oral argument, the State, which undoubtedly could have waived the death penalty before or at trial (In re Waiver of Death Penalty, 45 N.J. 501, 213 A.2d 20 (1965), took the position that, rather than a reversal and full retrial because of the sentencing error, the murder convictions should be modified so that the defendants would stand convicted of murder in the first degree with life imprisonment. However, the defendants asserted that this Court lacked the power to modify and that consequently there must be a complete retrial. 50 N.J. at p. 188, 233 A.2d 633. We ordered reargument on this issue and invited the Attorney General to file a brief and argue Amicus curiae. 50 N.J. at p. 189, 233 A.2d 633.

In their supplemental brief and at the reargument the defendants reasserted that this Court lacked modification power and that they were entitled to a retrial on both guilt and punishment. The State, through the County Prosecutor, filed a supplemental brief recommending that the findings of guilt be permitted to stand and the matter be remanded for a trial limited to 'the sole issue of penalty imposition, before the jury that sat at the original trial or a newly impanelled jury.' If such course is held unavailable, the State's position, as expressed by the prosecutor at the reargument, is that the judgments of conviction should not be reversed for full retrial but should be modified so that the defendants would stand convicted of murder in the first degree with life imprisonment; indeed the prosecutor indicated that since Dennis Kingsley (50 N.J. at p. 167, 233 A.2d 633) and perhaps other important witnesses for the State had disappeared he might not, in the event of reversal, be able to bring the matter on for such retrial at all. 1 The Attorney General filed a brief Amicus curiae which asserted unequivocally that 'this Court has the power to review the sentences of death herein and to impose sentences of life imprisonment'; at the reargument this position was reaffirmed with the recommendation that there be a modification rather than a reversal in the case at hand.

Passing for the moment any special considerations applicable to capital cases, it would appear entirely clear that our appellate courts have power to review and modify sentences in appropriate circumstances. There was a time in history, as evidenced by State v. Gray, 37 N.J.L. 368 (Sup.Ct.1875), when judges thought otherwise with consequences now recognized as patently offensive to reason and good sense. In Gray a defendant was lawfully convicted of adultery but was improperly sentenced to the state prison rather than to the county jail; on appeal, the sentence was held to be improper but the court, instead of modifying it, set the defendant free. To insure against miscarriages of this sort, the Legislature provided that, whenever a conviction is reversed for error in the sentence, the appellate court may enter the judgment which should have been rendered or may remand the matter to the lower court for that purpose. See L.1898, c. 237, § 144, p. 916; R.S. 2:195--23; R.S. 2:195A--13; State v. Burns, 136 N.J.L. 601, 603, 57 A.2d 1 (E. & A. 1948); State v. Garton, 102 N.J.L. 318, 321, 133 A. 403 (E. & A. 1926); State v. Huggins, 84 N.J.L. 254, 261, 87 A. 630 (E. & A. 1913). In State v. Culver, 23 N.J. 495, 129 A.2d 715, certiorari denied, 354 U.S. 925, 77 S.Ct. 1387, 1 L.Ed.2d 1441 (1957) this Court flatly rejected the technisms of Gray and gave clear expression to the broad appellate power to modify sentences, a power which was found to be an inherent judicial one (23 N.J. at pp. 501, 511, 129 A.2d 715) as well as one supported formerly in the practice acts and now in the practice rules. 23 N.J. at pp. 500--504, 129 A.2d 715; R.R. 1:5--1(c); R.R. 1:9--1; R.R. 1:5--4.

In Culver the defendant was lawfully convicted of armed robbery but was erroneously sentenced to life imprisonment. He contended that Gray embodied the common law and that under it he should be set free, stressing that the legislation (R.S. 2:195A--13) which had been enacted to obviate Gray had been repealed on the adoption of Title 2A of the Revised Statutes. But as Chief Justice Vanderbilt properly pointed out, the repealer was simply legislative recognition that the identical subject had been effectively dealt with in the court rules adopted under the Supreme Court's constitutional authority to govern practice and procedure. N.J.Const., Art. VI, § 2, par. 3. 23 N.J. at [242 A.2d 336] p. 502, 129 A.2d 715. And as to the contention that Gray voiced common law principles, the Chief Justice aptly noted that the common law is a living force with ample capacity for development and adaptation to current needs and beliefs. 23 N.J. at p. 505, 129 A.2d 715; see Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29, 43--48, 141 A.2d 276 (1958). In the light of such needs and beliefs, he found little difficulty in rejecting Gray along with its archaic English foundations and in announcing that, as a matter of present common law, our appellate courts have the inherent power 'to correct an illegal or improper sentence.' 23 N.J. at p. 505, 129 A.2d at p. 721.

In State v. Johnson, 67 N.J.Super. 414, 170 A.2d 830 (App.Div.1961) the defendants were convicted of rape and kidnapping and received sentences to be served consecutively. On appeal, they contended that their sentences were manifestly excessive and should be modified. In a comprehensive opinion by Judge Gaulkin, the Appellate Division upheld the appellate power 'to revise a sentence where it is manifestly excessive, even though within authorized statutory limits.' 67 N.J.Super. at p. 432, 170 A.2d at p. 840. It cited the pertinent language in Culver, the out-of-state decisions which have held that 'the right to affirm, reverse, or modify judgments includes the right to revise sentences' (67 N.J.Super. at p. 431, 170 A.2d at p. 840) and the persuasive legal literature which sets forth the many compelling arguments in favor of appellate review of sentences. See Hall, Reduction of Criminal Sentences on Appeal, 37 Colum.L.Rev. 521 (1937); Mueller, Penology on Appeal: Appellate Review of Legal But Excessive Sentences 15 Vand.L.Rev. 671 (1962); ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of Sentences, pp. 13--20 (Tent.Draft, April 1967); cf. 20 Stan.L.Rev. 405 (1968); 14 How.L.J. 29 (1968); 18 Maine L.Rev. 133 (1966); 74 Yale L.J. 379 (1964); 16 Rutgers L.Rev. 186 (1961); 46 Iowa L.Rev. 159 (1960); 36 U.Det.L.J. 356 (1959). See also State v. Mull, 30 N.J. 231, 239, 152 A.2d 572 (1959).

The authority of Johnson has been repeatedly acknowledged in later Appellate Division cases, though in most of them (but not all) the lower court was found not to have exceeded its discretionary sentencing power. See State v. Wasserman, 75 N.J.Super. 480, 485, 183 A.2d 467 (App.Div.1962), affirmed 39 N.J. 516, 189 A.2d 218 (1963); State v. Gibbs, 79 N.J.Super. 315, 324--326, 191 A.2d 495 (App.Div.1963); State v. Furino, 85 N.J.Super. 345, 349, 204 A.2d 718 (App.Div.1964); State v. Hall, 87 N.J.Super. 480, 484--485, 210 A.2d 74 (App.Div.1965); State v. Ford, 92 N.J.Super. 356, 361, 223 A.2d 502 (App.Div.1966); State v. Driesse, 95 N.J.Super. 491, 494, 231 A.2d 835 (App.Div.1967). And although the power to modify illegal and improper sentences was explicitly recognized in Culver, this Court has thus far not had any occasion to modify a sentence as manifestly excessive, as was done in Johnson. However, in State v. Tyson, 43 N.J. 411, 417, 204 A.2d 864 (1964), certiorari denied, 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965) we recently gave unmistakable indication that upon a showing of 'abuse of discretion' by the trial court we would not hesitate to reduce a sentence though it was within the outer bounds fixed by statute; indeed we could hardly take any lesser course without being faithless to our reviewing responsibilities and the true interests of right and justice. 2 In considering the scope of this Court's reviewing authority, we must bear clearly in mind the fact that its current source of power is the 1947 Constitution. See Hager v. Weber, 7 N.J. 201, 205, 81 A.2d 155 (1951). That organic document purposefully modernized and greatly strengthened our judicial system. In the process it vested this Court with wide judicial power, perhaps more sweeping than that granted to any other court of last resort, and all to the end that it would be in a fair position to insure that justice is truly and equally done. It replaced the earlier and narrower 'writ of error' with a comprehensive 'appeal,' (Art. VI, § 5, par. 1), and directed that this Court 'exercise appellate jurisdiction in the last resort in all causes' provided in the Constitution. Art. VI, § 2, par....

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