State v. Sands

• Decision Date: 17 December 1975
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Paul SANDS and Frank Sheldrick, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 103

138 N.J.Super. 103

350 A.2d 274

STATE of New Jersey, Plaintiff-Respondent, v. Paul SANDS and Frank Sheldrick, Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Submitted Nov. 3, 1975.

Decided Dec. 17, 1975.

Stanley C. Van Ness, Public Defender, for defendants-appellants (Harvey I. Marcus Englewood, on the brief).

William F. Hyland, Atty. Gen., for plaintiff-respondent (Lois De Julio, Deputy Atty. Gen., of counsel and on the brief).

Before Judges FRITZ, SEIDMAN and MILMED.

The opinion of the court was delivered by

SEIDMAN, J.A.D.

A jury found defendant Paul Sands guilty of second degree murder and defendant Frank Sheldrick guilty of first degree murder in connection with the death of one William White. Each was also found guilty of the illegal possession of a firearm, and Sheldrick, additionally, was convicted of assault with an offensive weapon and threatening the life of another. Both appeal.

The State's proofs indicated that there had been some trouble between decedent and defendants, apparently because they believed he had 'ratted' on them to the police. During the night of August 6/7, 1973 defendants were in the Vesuvious Bar in West New York, a tavern operated by decedent's father-in-law. They went into the back room of the tavern, where they began to play pool with decedent. Mrs. White observed Sheldrick remove from his pocket a sawed-off shotgun, which he pointed at her. When she remonstrated, he broke open the weapon and removed the shell. Sands took three shells from his pocket and placed them on the table. Sheldrick then inserted one of those shells into the shotgun. Shortly thereafter, while she was at the cash register, Mrs. White saw defendant draw a gun, aim it at her husband, and fire. Decedent leaped into the air and fell to the floor.

Police officers on routine patrol in the area heard a gunshot and observed smoke coming from the inside of the bar. A man, later identified as defendant Sands, emerged from the premises. The police saw him throw a weapon into a nearby alley. They placed him under arrest and then entered the tavern, where they apprehended Sheldrick as he was leaving the room with a sawed-off shotgun in his hand. Decedent's body lay on the floor. A subsequent autopsy revealed that death had resulted from a gunshot wound of the lower abdomen which had ruptured vital blood vessels, the intestines and the bladder.

Defendants argue, initially, that the trial judge, over objection, erroneously permitted decedent's wife to testify to what he said to her moments after the fatal wound was inflicted. They contend that the statements were made 'after an opportunity to deliberate and fabricate and was interspersed with other statements indicating a lack of nervous excitement.' We find no merit in these assertions.

Mrs. White's testimony was heard by the trial judge in a preliminary inquiry outside the presence of the jury, pursuant to Evid. R. 8(1). She said that when she heard the shot she ran over to her husband and asked, 'Billy, are you all right?' He replied, 'Get them out of here. Just get him out of here.' He then requested her to call for an ambulance. She further testified as follows:

Q. And after he said that (the request for the ambulance) did he make any other statement? A. Yes. He told me, he said his, he said his ass felt on fire and he said give me a drink of beer before I die.

Q. And prior to his saying that did he indicate anything else as to what had happened? A. He had said he shot me.

Q. And after he said he shot me? A. He said it twice.

Q. He said he shot me twice. A. Yes.

Q. And this was seconds after the shot had gone off or after you heard the shot? A. Yes.

The trial judge found, with support in the proofs, that the declarant was under the stress of a nervous excitement due to the wound, that the statement was uttered in reasonable proximity to his being shot, and that there was no opportunity for him to deliberate or fabricate. He correctly ruled that the testimony was admissible. See Evid. R. 63(4)(b). The fact that the statements may have been made in response to inquiry '(did not) remove its spontaneous nature within the contemplation of the doctrine (of Res gestae).' State v. Simmons, 52 N.J. 538, 542, 247 A.2d 313, 315 (1968).

Defendants next contend that 'certain actions of the assistant prosecutor were so prejudicial as to preclude a fair trial.' They complain that when the trial judge gave the jury a supplemental charge on the defense of misadventure, the assistant prosecutor expressed his displeasure by 'making all kinds of gyrations and faces.' The trial judge remarked, in response to counsel's objection, that 'there were gestures and postures and expressions on your (the assistant prosecutor's) face of dissent * * * which were obvious to me and which must have been obvious to the jury,' but he did not consider that the conduct detracted from the force of the charge. However, the jury was not given a curative instruction and none was requested. Such an instruction would have been appropriate, but defendants do not argue that the omission was error. While we have no doubt that the assistant prosecutor's conduct was improper, we are convinced that the infraction did not substantially prejudice defendants' right to a fair trial. State v. Bucanis, 26 N.J. 45, 56, 138 A.2d 739 (1958).

We reach a like result with respect to defendants' objection to a remark made by the assistant prosecutor during his interrogation of decedent's wife, and to the trial judge's denial of their motion for a mistrial. Secifically, the words were, 'I wonder,' indicating disbelief in the testimony. The trial judge immediately and forcefully instructed the jury to disregard the comment. It was clearly uncalled for, but whatever harm might have resulted was completely dissipated by the strongly worded curative instruction.

A contention separately advanced by defendant Sheldrick is that the trial judge erred in permitting testimony regarding his prior criminal convictions. We observe parenthetically that his brief fails to indicate that the point is raised for the first time on appeal. See R. 2:6--2(a). Furthermore, while he states that the judge erred 'in not granting the defendant's motion to limit the discussion of the defendant, Sheldrick's prior convictions,' we cannot locate such motion in the transcript.

In any case, the argument is specious. When Sheldrick took the stand and testified in his own behalf, the assistant prosecutor properly cross-examined him on his prior convictions for the purpose of affecting his credibility. N.J.S.A. 2A:81--12. Moreover, the convictions were first elicited by defense counsel on his direct examination. We are urged to declare unconstitutional the statute permitting such inquiry by the prosecution. Defendant says that the 'time has come for the New Jersey Supreme Court to reconsider its position in the case of State v. Hawthorne (49 N.J. 130, 228 A.2d 682 (1967)).' We suggest that those arguments should be addressed to that court, not to us. See State v. Steffanelli, 133 N.J.Super. 512, 514, 337 A.2d 625 (App.Div.1975).

Defendant Sands complains that because the assistant prosecutor commented on Sheldrick's testimony while summing up, this 'high-lighted' the fact that he did not testify. The contention is frivolous. We have carefully reviewed the summation and find nothing prejudicial therein.

Another assignment of error is that the trial judge failed to submit to the jury the issue of manslaughter, as requested. The proofs in this case did not warrant such charge. Cf. State v. Gosser, 50 N.J. 438, 453--454, 236 A.2d 377 (1967), Cert. den. 390 U.S. 1035, 88 S.Ct. 1434, 20 L.Ed.2d 295 (1968); State v. Trantino, 44 N.J. 358, 370, 209 A.2d 117 (1965), Cert. den. 382 U.S. 993, 86 S.Ct. 573, 15 L.Ed.2d 479 (1966). Sheldrick testified that the decedent had aimed his own gun at him and that the gun accidentally discharged as Sheldrick attempted to push the barrel of the weapon towards the floor. Thus, the defense asserted was death by misadventure. The trial judge fully instructed the jury on the principles of law pertaining to that issue.

We turn now to the argument advanced by defendant Sheldrick that the trial judge's refusal to accept pleas of Non vult resulted in his 'suffering additional consecutive sentences.' The contention is that the trial judge would not accept the pleas unless defendants admitted their guilt factually, which they were not willing to do. Defendant misconstrues what actually occurred.

At the opening of the trial, with the acquiescence of the assistant prosec...