State v. Suit

• Decision Date: 03 July 1974
• Citation: 129 N.J.Super. 336,323 A.2d 541
• Parties: The STATE of New Jersey, Plaintiff, v. Joseph SUIT, Defendant. (Criminal)
• Court: New Jersey Superior Court

Page 336

129 N.J.Super. 336

323 A.2d 541

The STATE of New Jersey, Plaintiff, v. Joseph SUIT, Defendant.

Superior Court of New Jersey, Law Division,

(Criminal).

July 3, 1974.

Russell Cottrell, Asst. Prosecutor, for plaintiff (James M. Coleman, Jr., Prosecutor of Monmouth County, attorney).

Thomas J. Spinello, Asst. Deputy Public Defender, for defendant (Stanley C. Van Ness, Public Defender, attorney).

McGOWAN, A.J.S.C.

Defendant moves before trial for dismissal of count I of Indictment No. 790--73 charging him with the felony murder of one Charles Williams on February 10, 1974. It is defendant's position that as a matter of law he cannot be charged with the murder of Williams, whose death occurred as a result of a wound inflicted by another, one Solomon Richardson, one of the intended victims. Williams and Suit were engaged in the commission of an armed robbery upon Richardson, among others, when Richardson shot and fatally wounded Williams and injured defendant Suit. The State argues that under N.J.S.A. 2A:113--1, which the State submits adopts the total common law felony-murder doctrine, Suit is liable for murder, since Williams' demise occurred during the commission of one of the crimes outlined by the statute. For purposes of deciding this motion, defendant and the State have stipulated to the following facts:

On Sunday, February 10, 1974, at about 5:30 p.m. defendant Joseph Suit together with Charles Williams entered an apartment located at 1215 Lake Avenue in the City of Asbury Park, New Jersey. Present in the apartment were the tenant, Lew Marsh, and three visitors--Estelle Coleman, Clarence Vaugh and Solomon Richardson. After a period of conversation Williams pulled out a 22-cal. pistol, pointed it at Richardson and the others, and then robbed them. During the course of the armed robbery Suit was located near the inside of the door of the apartment. While Williams was placing a bullet into his own gun, Richardson produced his own gun, a 38-cal. pistol which had been hidden on his person. Richardson shot and killed Williams and then shot and wounded Suit. Coleman, Richardson and Vaugh were later found with two guns, namely, the pistol used by Williams and the gun used by Richardson. For purposes of this motion it is stipulated that defendant Suit acted as an accomplice to the armed robbery, perpetrated by Williams. The State will rely exclusively upon the felony-murder doctrine in its prosecution of defendant suit.

The issue squarely before this court is whether under N.J.S.A. 2A:113--1 a surviving participant in an armed robbery can be held liable for murder where his coparticipant was killed as a result of a shot fired by the intended victim in an apparent attempt to abort the robbery.

Since dismissal is a severe remedy, it is defendant's burden to offer this court 'the clearest and plainest' of grounds to justify such action. State v. Welek, 10 N.J. 355, 91 A.2d 751 (1952). Counsel for defendant and for the State agree there is no controlling New Jersey authority on point with the particular fact pattern at bar. Thus, an examination of our statute in light of its interpretation by New Jersey courts, and an examination of the statutes and case law of our surrounding jurisdictions, is essential to a determination of this matter.

N.J.S.A. 2A:113--1 provides in pertinent part:

If any person, in committing or attempting to commit * * * robbery * * * kills another, or if the death of anyone ensues from the committing or attempting to commit such crime or act; * * * then such person so killing is guilty of murder.

The degree of murder is set forth in N.J.S.A. 2A:113--2 as follows:

Murder * * * which is committed in perpetrating or attempting to perpetrate * * * robbery * * * is murder in the first degree.

The prosecutor argues that under the abovecited statutes any death which occurs during the commission of a felony is imputable to the perpetrator as murder. The State relies on State v. Kress, 105 N.J.Super. 514, 253 A.2d 481 (Law Div.1969), and points to that part of the opinion which discusses and interprets the murder statute. The factual pattern in Kress is different and distinguishable. Kress was a bail hearing where the court considered propriety of a murder indictment against a defendant who, in effect, used a bank official as a shield in attempting to escape from a bank after committing an armed robbery. The police, while apprehending the perpetrators, fatally wounded the official. Defendant there argued that he could not be held liable for murder since the police fired the fatal shots. This argument was based on an interpretation of N.J.S.A. 2A:113--1 which held that the phrase 'then such person so killing' required that liability must be predicated on the person who in fact fired the fatal shot. Although a portion of the statute speaks in terms of 'if the death of anyone ensues from the committing' (hereinafter referred to as the Ensues clause), defendant argued that that provision is incomplete and of no effect lest it be coupled with the concluding phrase placing liability on the person acting The Kress court rejected this argument and found that the Ensues clause could stand alone, without regard to the closing provision, otherwise the phrase would be mere surplusage. However, the Kress court also noted that the facts involved indicated defendant used decedent as a shield, thus forcing decedent into a position likely to cause his death. Kress, supra, 105 N.J.Super at 521--522, 253 A.2d 481. The State submits that Kress is illustrative of the wide sweep of New Jersey's murder statute.

Defendant counters and argues that the interpretation of the murder statute in Kress ignores the mandate of State v. Provenzano, 34 N.J. 318, 322, 169 A.2d 135 (1961), which requires a common sense interpretation of a criminal statute. It is submitted that the Ensues clause without the concluding phrase is incomplete and incomprehensible. Moreover, defendant submits that there is no authority in case law for the position adopted in the Kress decision. See, also, the excellent case note critically analyzing the Kress decision, 24 Rutgers L.Rev. 591 (1970).

A review of some New Jersey cases is appropriate if we are to gain any insight into the felony-murder doctrine in general. At the outset it should be noted that there is no dispute at present as to whether Suit's liability is lessened since he was an accomplice. All participants in a felony are liable as if they were principals. See N.J.S.A. 2A:85--14.

Some cases which discuss felony-murder are concerned with the concept of Res gestae and consider questions of whether the felony was abandoned or completed prior to the commission of the homicide. In State v. Mule, 114 N.J.L. 384 (E. & A. 1935), defendants were convicted of first-degree murder. While the case centers about the question of whether one of the participants had withdrawn from the felony, Mule is noteworthy here since that court discusses the effect that the conduct of the victim might have on the elements of the crime. During a robbery attempt the victim assaulted one of the robbers and was lunging for defendant when it appeared to both felons that the victim was about to resort to a weapon. One of the felons fired a shot, allegedly to scare the victim but which subsequently killed him. The court found that this act was committed in an attempt to perpetrate the robbery and held that the victim's conduct was of no consequence in assessing defendant's liability That the resistance offered by the intended victim, whether unexpected or otherwise, prompted Scarponi to use the gun for self-protection, is therefore of no moment. It matters not that he fired the shot to escape violence at the hands of the resisting victim, and not to aid in the consummation of the planned robbery, or because of fright, as he suggested.

In such circumstances, the shooting was woven into the fabric of the planned crime, and was inseparable from it. (114 N.J.L. at 391--392)

This Res gestae approach actually developed in response to defense arguments that the felony was complete prior to the infliction of the fatal blow. See State v. Artis, 57 N.J. 24, 32, 269 A.2d 1 (1970); State v. Turco, 99 N.J.L. 96 (E. & A. 1923); State v. Gimbel, 107 N.J.L. 235 (E. & A. 1930).

In State v. Carlino, 98 N.J.L. 48 (Sup.Ct.) aff'd 99 N.J.L. 292 (E. & A. 1923), the question was whether an accomplice who had fled the scene had sufficiently removed himself from the crime to escape liability for a shot fired by one of his accomplices. The court held (at 52) that all participants in an unlawful act are liable as principals for the particular crime; all are liable for murder if but 'one of them * * * kill a man,' State v. Lucas, 30 N.J. 37, 152 A.2d 50 (1959); State v. Butler, 27 N.J. 560, 143 A.2d 530 (1950); State v. Hubbard, 123 N.J.Super. 345, 303 A.2d 87 (App.Div.1973); Ruvesel v. State, 62 N.J.L. 216 (E. & A. 1898). Also, in State v. James, 96 N.J.L. 132 (E. & A. 1921), that court, in considering insanity as a defense to a felony murder, stated that a homicide committed in the perpetration of a robbery, If murder at all, is murder in the first degree. (Emphasis supplied). This case is noteworthy in that it is the sole case in New Jersey which indicates that murder may not lie for a homicide committed during a felony.

The prosecutor here argues that it can be nothing but first-degree murder because of the breadth of the language of N.J.S.A. 2A:113--1, as evidenced by the holding in State v. McKeiver, 89 N.J.Super. 52, 213 A.2d 320 (Law Div.1965). In that case defendant, charged with felony-murder, moved to dismiss on grounds that since decedent, a bystander and possible victim, had suffered cardiac arrest during the robbery, the death could not be attributable to the felony. The court held (at 57, 213 A.2d at 323) that 'the fact that there was no physical contact with decedent does not negate the premise that a...