State v. Smith

• Decision Date: 23 May 1960
• Docket Number: No. A--12,A--12
• Citation: 161 A.2d 520,32 N.J. 501
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Clarence SMITH and Lee Stanford, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 501

32 N.J. 501

161 A.2d 520

STATE of New Jersey, Plaintiff-Respondent, v. Clarence SMITH and Lee Stanford, Defendants-Appellants.

No. A--12.

Supreme Court of New Jersey.

Argued Sept. 28 and 29, 1959.

Decided May 23, 1960.

Alfred C. Clapp, Newark, argued the cause for defendant-appellant Clarence Smith.

Hymen B. Mintz, Newark, argued the cause for defendant-appellant Lee Stanford.

Hamilton F. Kean, Newark, on the brief for both defendants-appellants.

Brendan T. Byrne, Essex County Prosecutor, Newark, argued the cause for plaintiff-respondent.

The opinion of the court was delivered by

HALL, J.

The defendants appeal as of right from a conviction for first-degree murder in the Essex County Court upon which they were sentenced to life imprisonment by reason of the recommendation of the jury. The theory of the prosecution was felony-murder based upon a killing ensuing from the commission of robbery. N.J.S. 2A:113--1 and 2, N.J.S.A. The death resulted from injuries sustained in a 'mugging,'--a term commonly used to describe the vicious act of physical attack upon an isolated pedestrian on a public street at night and the taking of money and effects from his person. It constitutes the felony of common-law robbery.

The State introduced evidence from which the jury could find beyond any doubt the necessary elements of the felony-murder committed by two Negro youths. It was convincingly established by witnesses who were in the vicinity and from medical testimony that the decedent, Carmine Dellorto, about 66 years old, was attacked by two such persons for the purpose of robbery while waiting for a bus at the southeast corner of 15th Avenue and South 10th Street in Newark near midnight on June 13, 1958, that he was knocked down by a strong blow to the face, and that he struck the back of his head on the pavement, sustaining a fractured skull from which he died on the spot within a few minutes. A wallet, which it was shown he had in his hip pocket on leaving the home of a friend in the area a few minutes earlier to walk to the bus stop, was missing from his person.

The substantial issue at the trial was the connection of defendants with the offense. They are Negroes and were 17 years old at the time. (Being under the age of 18, they were juveniles under our law, but subject to prosecution as adult criminals either on their own demand, or, as occurred here, on the discretionary order of the Juvenile and Domestic Relations Court in cases where one 16 or 17 years of age is an habitual offender or is charged with an offense of a heinous nature under circumstances which may require the imposition of a sentence for the welfare of society. N.J.S. 2A:4--15, N.J.S.A.; R.R. 6:9--7.) No witness identified them as the youths involved and implication was made out on their oral and written statements given during a period of questioning at police headquarters several days after the crime and admitted in evidence by the trial judge as voluntary, following a preliminary inquiry which produced sharply conflicting testimony on that issue. Defendants' proofs sought to establish that they never in fact made any admissions of guilt, were actually at their respective homes when the crime was committed and had no connection with it.

It is here urged that the State's proofs were insufficient to warrant the submission of the case to the jury as to Stanford and that the verdict was against the weight of the evidence as to both defendants. Certain other alleged trial errors, chiefly relating to questions of evidence, are also asserted. It is strongly insisted that the statements were inadmissible and the convictions cannot stand because defendants were detained and questioned in police headquarters and dealt with prior to indictment in violation of procedures specified by our statutes and rules and the confessions obtained by means contrary to due process of law under the Fourteenth Amendment of the United States Constitution. Reversal is further claimed on the ground that the trial judge refused to instruct the jury to determine again whether the statements were voluntarily given and to reject them entirely if found not to be of that character.

Consideration of the points raised requires a more detailed recital of events and evidence. Within a few hours after the occurrence, the police obtained the stories of several people who had been in the immediate vicinity at the time, although none had seen the attack. These persons were prosecution witnesses at the trial and their testimony represented the only evidence having any bearing on defendants' connection beyond the statements.

The principal witness was Louis Pizza, a 21-year-old bank clerk, who lived on the south side of 15th Avenue one door east of the South 10th Street corner. Near midnight on the evening in question, he was sitting on the stoop in front of the adjoining building, talking with a friend. (The friend was in service and not available to testify at the trial.) He noticed a man walk past on the sidewalk in front of him going west toward the corner. A minute or two later two colored boys, about 17 years old, passed, walking in the same direction. He did not continue to watch them. In a couple of minutes he heard a noise in the vicinity of the corner which sounded like a crack, 'I never heard anything like it,' and he and his friend started to get up from the stoop. As they did so, the same two boys came around the corner and passed them, running very fast. The boys continued running to 9th Street, one short block east, where they turned south toward 16th Avenue. Pizza and his friend then went to the 10th Street corner. Just as they got there it started to rain very hard. They found the man who had walked past them a few minutes before (the decedent) lying just south of the corner, with his head out in the street and his feet over the curb.

An important part of Louis Pizza's testimony was the general physical description he gave to the two youths, the only witness to furnish anything at all on this score. Beside giving their race and approximate age, he said one was rather tall and thin, about five feet, eight or nine inches, and the other was shorter and a little stockier. The taller one had 'a sort of raincoat or trench coat on, a light or a white one I think it was,' and the other was wearing 'a sort of tan jacket, * * * a half jacket, * * * a shorter jacket.' He thought the shorter one wore a hat. However, at no time, prior to or at the trial, was he asked by the police or the prosecutor to attempt to identify anyone, and he told defense counsel he could not do so.

About the same time Mr. and Mrs. Nicholas D'Andrea were riding in their car north on South 10th Street between 16th and 15th Avenues. The beam of their headlights brought into vision two people bending or stooping over a third lying near the corner. As the car lights illuminated the scene, the two arose and ran around the corner east on 15th Avenue toward 9th Street. Mr. D'Andrea turned right into 15th Avenue and his wife saw them running down the south side of the street. Neither could given any description of the two figures whatever, even as to color, and naturally was never called upon to attempt any identification.

The final person who had a glimpse of the perpetrators of the crime was Jerry Pizza, Louis' younger brother, who was standing in front of a hot dog store at the northwesterly corner of 15th Avenue and 9th Street. He saw two Negro boys, about 17 or 18 years old, running east 'pretty fast' on the opposite sidewalk of 15th Avenue. They turned the corner and continued south on 9th Street. Mr. and Mrs. D'Andrea then drove up and 'asked me if I saw two young men running, and when I said yes, they said that they had just mugged a man down at the corner.' Jerry then started chasing the boys down 9th Street. He never got close to them and when he reached 16th Avenue, they had disappeared from view. A friend of his came along in a car, and they made a search of the neighborhood by that means, in the course of which he saw the two again, coming from Spring-field Avenue at 6th Street and entering a house on 16th Avenue in that vicinity. He then returned to the scene of the crime and gave the information to police officers who had arrived. At the trial he testified he could not identify the fugitives or give any description beyond their race and approximate age observed from across the street as they rounded the 9th Street corner.

The medical testimony established, from an autopsy conducted the next day, that death was caused by a fracture of the skull at the site of a lacerated would on the back of the head, obviously where the decedent hit the pavement. There were also lacerations and bruises about the lower part of the nose and mouth, giving rise to an irresistible inference that a blow had been received in that region.

With this information in hand, the Newark police, on Monday following the Friday night of the crime, rounded up some 17 Negro juveniles and questioned them at police headquarters. Included was the defendant Smith. He denied any knowledge of the event and was released. No point is here made with respect to that interrogation.

A week later, on June 23rd, about 4 o'clock in the afternoon, Smith and Stanford were brought to the homicide squad room in headquarters by three detectives for questioning as suspects. No warrant was previously issued. Although the matter was not fully explored at the trial and the record is not entirely clear, it seems apparent this course was followed because one David Parker, an 18-year-old resident of defendants' neighborhood who had been questioned in headquarters earlier that same day about this and other 'muggings,' told the police defendants had recounted to him the morning after the crime that 'they got themselves a cat at 15th Avenue and 10th Street last night.'

Smith was than three months short of being 18 years of age; Stanford...