State v. Sullivan

• Decision Date: 22 July 1964
• Docket Number: Nos. A--145,A--146,s. A--145
• Citation: 203 A.2d 177,43 N.J. 209
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Gerue SULLIVAN and Joseph Aiken, Defendants, and George Taylor and Richard Garner, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 209

43 N.J. 209

203 A.2d 177

STATE of New Jersey, Plaintiff-Respondent, v. Gerue SULLIVAN and Joseph Aiken, Defendants, and George Taylor and Richard Garner, Defendants-Appellants.

Nos. A--145, A--146.

Supreme Court of New Jersey.

Argued June 1, 1964.

Decided July 22, 1964.

Warren Brody, Linden, for defendant-appellant George Taylor.

Sam Weiss, Newark, for defendant-appellant Richard Garner (Joseph J. Higgins, Elizabeth, attorney).

George Perselay, Asst. Pros. of Union County, for plaintiff-respondent (H. Douglas Stine, Pros. of Union County, attorney).

The opinion of the court was delivered by

FRANCIS, J.

On February 21, 1962 at about 1:50 A.M. Lester Drew was shot and killed in a small hotel owned by him in Elizabeth, New Jersey. According to Mrs. Drew, who was present at the time, the killing took place in the course of an attempted robbery. The police were notified by telephone as soon as the gunman and his companion or companions left the building. Within a few minutes, as police officers were proceeding to a designated location to assist in establishing a roadblock, they saw a red and white automobile containing four men and traveling at about 20 to 25 miles an hour. They began to follow it. As they did so, it speeded up to 35 to 40 miles per hour. A second police car appeared, cut off and stopped the pursued car. The officers alighted and as they approached, the car started to back up, then stopped again. As they neared it they heard a voice say, 'Don't shoot, I got the guns,' or 'Don't shoot, I've got both guns.'

The men in the car were Gerue Sullivan, Joseph Aiken, George Taylor and Richard Garner; Taylor was the driver. They were arrested and they and the car were searched. Two guns, one of them a pearl-handled revolver, were taken from Sullivan. A toy pistol with fresh blood on it was found under the right rear seat. Garner had been sitting there and when arrested his right wrist was bleeding, apparently from an old laceration which had reopened. The men were taken to headquarters where, within a very short time, Aiken, Sullivan and Taylor confessed they had planned with one Hilliard Brown to rob Drew, and they were attempting to do so when Sullivan shot and killed him. Aiken's confession implicated Garner as a participant in the fatal attempt. He did not involve him as one of the original planners of the crime, but as joining the enterprise on the night of its attempted execution.

Murder indictments were returned against the four men, counsel were assigned and the matter set down for trial on October 15, 1962. At the outset of the trial and before the jury impaneling had begun, counsel for Sullivan and Aiken applied to the court for leave to withdraw their not guilty pleas and to enter pleas of Non vult to the indictments. Before accepting the pleas, the court examined each of the two men at length to satisfy himself that they fully understood the nature, significance and consequences of their request, and that no promises or agreements had been made with respect to the sentence to be imposed. Both Sullivan and Aiken told the court they had discussed the nature and significance of the plea with their attorneys and understood (1) that a Non vult plea is the equivalent of a plea of guilty for purposes of sentence, (2) that if the court accepts the plea it has the authority to sentence and nothing remains but the imposition of sentence, and (3) that the sentence could be either life imprisonment or a sentence to State Prison for a term of not more than 30 years. They also advised the court specifically, in answer to his questions, (1) that no promises had been made to them by the prosecutor or anyone else with respect to sentence as an inducement to enter the plea, (2) that no one had exerted any force, duress or compulsion of any kind to induce them to enter the plea, (3) that the pleas were being offered by them freely, voluntarily and understandingly in all respects, and (4) that each of them had discussed with his attorney all of the matters mentioned before the morning of trial. The court inquired of their attorneys if the defendants had filled out and signed the form used in such plea cases which contains substantially the same questions as those put by him in open court. He was told it had been done. The prosecutor then asked each of the two defendants if he understood all the questions appearing on that form. Each said he understood and had no questions to ask about it.

In addition to the inquiry by the court and prosecutor, counsel for Aiken made a long statement in his presence to the effect that they had discussed the matter at length, that Aiken understood and intended that the plea of Non vult be considered 'an admission of the commission of the offense' charged in the indictment. Counsel added, 'I say in the presence of the defendant that there had been no promises made to him by anyone to induce this plea,' and that Aiken did not execute the form referred to by the court until counsel was satisfied from their discussion Aiken did so freely, voluntarily and understandingly.

After the questioning was completed and the prosecutor recommended acceptance of the pleas, the court announced he was satisfied the defendants understood fully the action they were taking and its significance and therefore he would accept the pleas.

The trial thereupon proceeded against the remaining defendants. Sullivan and Aiken were called as witnesses by the State. At its conclusion the jury found Taylor and Garner guilty of murder in the first degree and recommended life imprisonment. In due course that sentence was imposed. Sullivan and Aiken also were sentenced to life imprisonment on their pleas of Non vult.

Shortly after the sentencing Sullivan and Aiken recanted their confessions and their testimony at the trial saying there had been no plan to rob Drew. Instead they alleged they had visited him to collect money due from him and the shooting fracas had been precipitated by Drew in the course of his refusal to pay the debt. They maintained also that Taylor and Garner had no part at all in the affair, and that they had lied about the planned and attempted robbery and about Taylor's and Garner's participating in it. Relying on the recantation, the convicted defendants moved for a new trial. After a full hearing the trial court denied the motion.

Both defendants have appealed directly to this Court as of right. R.R. 1:2--1(c). A number of trial errors respecting the admission or rejection of evidence, the charge of the court and the denial of certain motions, including the refusal to grant a new trial, are presented as the basis for reversal. In addition to the briefs filed by Garner's attorneys, he has submitted a memorandum alleging further grounds for a new trial. In reviewing the convictions we have given consideration to all assertions of error.

I.

Barbara Drew, wife of the victim, testified that at about 1:50 A.M. on February 21, 1962, a man came into the Lester Hotel and requested a room for two nights. She told him there was a room available but just for one night. At this, the man grabbed her with his left hand, produced a pistol with his right hand, and said it was a holdup. They had walked to the rear of the building where the Drew apartment was located when Lester Drew appeared. He, too, was told it was a holdup. At this point Mrs. Drew said she saw another person standing across the room. She could not identify him but she did hear him say, 'He will kill you.' Then 'the guns' began to fire. Her husband slumped to the floor and the gunman ran out the same door he used to enter. She could not say if her husband had a gun, but she recognized one revolver produced at the trial as belonging to him and to her. As soon as the men left, she called the police.

Mrs. Drew's sister, Miss Jeanette Merriweather, was staying at the hotel at the time. Her room was on the same floor, near the hotel office and close to the Drews' quarters. She was awakened by a scuffling noise, got up and opened her door. She heard shots and closed the door again until the shooting ended. Then, as she heard her sister call, she opened the door and saw two men run or bump into each other near the office desk. She saw a hand of one of them 'go up' to the nearby Venetian blind, the inference being that he had been knocked off balance. A hat fell off one of them as they collided. (It later proved to be Aiken's hat; and, as has been noted above, when Garner was arrested his right wrist was bleading from an old infected and unhealed laceration which had reopened, and there was fresh blood on the toy pistol found underneath the seat of the car where he was sitting.) Neither Mrs. Drew nor Miss Merriweather could identify any of the men.

There is no doubt Aiken and Sullivan were potent witnesses for the State. If the jury believed them, there was ample basis for the conviction of Garner and Taylor.

According to Sullivan, sometime in February 1962 he, Aiken, Taylor and Hilliard or Helius Brown discussed holding up Drew at his hotel. On that occasion Sullivan, Aiken and Brown drove to the vicinity and Aiken went in and looked the hotel over. Taylor did not accompany them but it is clearly inferable from all the proof that he was aware of the criminal proposal before the night of the attempted robbery. Furthermore, Aiken testified he, Sullivan and Taylor had discussed it about two or three weeks earlier.

On the night of February 21, Sullivan said Taylor (whom he had met about four years earlier) came to his apartment in New York and asked if he was ready to go to Elizabeth. Taylor had driven to Sullivan's apartment in a borrowed car. Aiken had accompanied him but apparently stayed with the car while Taylor went in. Sullivan produced a revolver, loaded it in Taylor's presence, put it in a small paper bag and handed it to him. When Sullivan and Taylor came out, the three men talked about borrowing some money. W...