State v. Rudd

• Decision Date: 09 May 1967
• Docket Number: No. A--107,A--107
• Citation: 230 A.2d 129,49 N.J. 310
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Asbury Jasper RUDD, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 310

49 N.J. 310

230 A.2d 129

STATE of New Jersey, Plaintiff-Respondent, v. Asbury Jasper RUDD, Defendant-Appellant.

No. A--107.

Supreme Court of New Jersey.

Argued April 11, 1967.

Decided May 9, 1967.

Hymen B. Mintz, Newark, for appellant.

James R. Zazzali, Asst. County Pros., for respondent (Brendan T. Byrne, County Pros. of Essex County, attorney).

PER CURIAM.

The defendant was convicted of murder in the second degree and appealed to this Court as of right under R.R. 1:2--1(c). The evidence supporting the conviction was compelling and his brief contains no challenge addressed to its weight. It does however advance several points of alleged legal error which will be dealt with here.

On September 13, 1965 at about 11 P.M. the decedent George Richardson's body was found in a pool of blood just outside his room at 16 East Kinney Street. He had been stabbed to death, the lethal blow having been a five-inch stab wound which entered the left chest cavity and severed the pulmonary artery. Earlier in the evening, the defendant had been drinking in the decedent's room and there had been an argument. The defendant was understood to be a cousin of the decedent and, after the police had been to the scene they went to the defendant's apartment which was nearby at 20 1/2 East Kinney Street. Detective Carofolo testified that when he first entered the defendant's apartment he did not suspect him as the culprit and simply said, 'Mr. Richardson is lying on the floor at No. 16 and he is dead. We understand you are a relative.' The defendant immediately responded, 'Yeah, I know. I was over there. We had an argument. He hit me on the head.' Looking about the room, Detective Carofolo and his associates saw pants and shoes which were spotted with blood and a knife which had been placed in the trash basket. They then took the defendant into custody, while seizing the pants and shoes along with the knife which was later determined to have fibers under its hilt matching those used in the shirt worn by the decedent when he was killed.

At police headquarters the defendant was told that he did not have to make a statement and that any statement he did make could be used against him in a court of law. He was also told that he had the right to talk with a lawyer of his own choice or anyone else and that if he could not pay for a lawyer the court would get one for him. The defendant signed a so-called preamble, bearing the date September 14, 1965 1:25 A.M., which acknowledged all of the foregoing. He then made a statement which was in question and answer form and was interrupted during its course by the entry into the room of an assistant prosecutor who received an affirmative answer when he inquired as to whether the defendant was making his statement voluntarily and whether he understood what he was doing. At that point the assistant prosecutor advised the defendant that he did not have to make a statement, that anything he said could be used against him, that he had a right to a lawyer, and that if he could not afford a lawyer the State would provide one free of charge. The assistant prosecutor testified that the defendant said he did not want a lawyer or anyone else and the taking of the statement then proceeded to its conclusion.

In his statement, the defendant asserted that he had been arguing with George, that he fell asleep and awakened when he felt a knot on his head, that he struck George with the knife which was later found in the defendant's room, and that as far as he knew George had been trying to strike him with a knife. In his testimony during the trial, the defendant said that when he awakened in George's room he discovered he had been hit on the forehead and saw a tall man holding a knife. At that point, according to his testimony, the defendant picked up a knife from the kitchen table, motioned it toward the man and then ran out the door, going directly to his own room. The record establishes that George had been blind or substantially so for many years.

In his first point of alleged error the defendant complains about the trial court's action in admitting photographs of the decedent's body into evidence and in placing them on a bulletin board in the constant view of the jury throughout the trial. The photographs, which were in black and white, were probative and were not unduly inflammatory. They were properly admitted into evidence. See State v. O'Connor, 42 N.J. 502, 511, 201 A.2d 705, certiorari denied 379 U.S. 916, 85 S.Ct. 268, 13 L.Ed.2d 187 (1964). We find no prejudicial error in the display of the photographs on the bulletin board although it appears to us that the trial court might better have honored the defendant's request that they be removed and redisplayed as needed from time to time to help clarify testimony. Although we are entirely satisfied that here the constant display could not have had any effect on the ultimate verdict, the issue should be wholly avoided in future criminal trials.

The defendant's second point attacks the trial judge's references to the evidence during his charge, as having improperly conveyed to the jury the impression that he felt there should be a verdict of guilty. We find the attack to be without substance. The trial judge had the right to comment on the evidence so long as he clearly and fairly left to the jury's determination all of the factual issues and the ultimate question of guilt or innocence. See State v. Begyn, 34 N.J. 35, 53, 167 A.2d 161 (1961). Throughout the charge he took pains to tell the jury that it was the sole and exclusive judge of the facts, that its own recollection of the facts was controlling, and that although he had the right to comment on the evidence and to point to such inferences as he considered persuasive, the jury was not bound by his comment and could properly disregard it if it say fit. At the conclusion of his charge, the trial judge cautioned the jury that the ascertainment of the truth rested entirely with it and it was to analyze all of the evidence in the case and determine whether it was satisfied beyond reasonable doubt that the defendant was guilty of the offense charged.

The defendant in his third point cites Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in support of the contention that the oral statement by the defendant in his own apartment and the pants, shoes and knife seized there, should have been excluded because he was not then advised of his constitutional rights. The statement and the seizure were made and the defendant's trial was held before the decision in Miranda. We are neither obliged nor disposed to apply Miranda retrospectively to trials completed or under way before the Supreme Court's opinion was handed down. Johnson v. State of New Jersey, 384 U.S. 436, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); State v. Zucconi, 93 N.J.Super. 380, 383, 226 A.2d 16 (App.Div.1967); the state decisions elsewhere have declined with substantial unanimity to apply Miranda retroactively; see, e.g., People of State of New York v. McQueen, 18 N.Y.2d 337, 274 N.Y.S.2d 886, 221 N.E.2d 550, 551--554 (Ct.App.1966); State v. Gannites, 221 A.2d 620, 623 (R.I.Sup.Ct.1966); Commonwealth v. Morrissey, 67 Mass. 11, 222 N.E.2d 755, 758 (Sup.Jud.Ct.1967); see also People v. Myers, 35 Ill.2d 311, 220 N.E.2d 297, 303 (Sup.Ct.1966); State v. Millo, 4 Conn.Cir. 164, 227 A.2d 567, 570 (App.Div.1966); People v. Fordyce, 378 Mich. 208, 144 N.W.2d 340, 341--342 (Sup.Ct.1966); State v. Carden, 9 Ohio St.2d 1, 222 N.E.2d 620, 628 (Sup.Ct.1966); Reimers v. State, 31 Wis.2d 457, 143 N.W.2d 525, 530 (Sup.Ct.1966); State v. Noyes, 69 Wash.Dec.2d 444, 418 P.2d 471, 474 (Sup.Ct.1966).

In any event, we do not consider that Miranda, even if applicable, would bar the statement or seizure made at the defendant's apartment. When Detective Carofolo first went to the apartment, according to his testimony which the trial court fully credited in its preliminary finding of voluntariness and admissibility, he went not to interrogate a suspect but to notify a relative. When he told the defendant about George's death the defendant blurted out that he knew about it, that they had an argument, and that George had it him on the head. Surely there was no occasion for giving the defendant any warnings before he volunteered this information. His statement, having been made freely before he was taken into...