State v. Christener

¶1Temporarily Assigned (dissenting). I cannot concur in the court’s judgment in this matter. I regard the sentence as excessive, however, and would reduce it, but otherwise would affirm the conviction of defendant for manslaughter.

¶2It is held by the court that there was insufficient evidence to go to the jury on first degree murder and therefore submitting that charge to the jury was reversible error as having had the capacity to induce the jury to compromise on a manslaughter verdict rather than acquit. The position is one never heretofore advanced by defendant, even in his petition for certification. It is therefore cognizable by the court only on plain error grounds.

¶3I find no error in the respect noted, much less plain error.

¶4The controlling rule on the sufficiency of the State’s proofs to make for a jury issue (or to withstand a motion for acquittal) in a criminal case, a rule not disputed by the majority, is that “the evidence and the inferences reasonably to be drawn therefrom must be viewed in a light most favorable to the prosecution. If, on such a consideration of the facts, the jury could reasonably find the accused guilty beyond a reasonable doubt”, the ruling must be for the State. State v Franklin, 52 N. J. 386, 406 (1968); State v. Mayberry, 52 N. J. 413, 436-437 (1968); State v. Fiorello, 36 N. J. 80, 87-88 (1961). In applying this rule on review of a trial determination, allowance must also be made for the right of the jury to determine the weight and credibility of the testimony. State v. Forcella, 35 N. J. 168, 175 (1961).

¶5The majority opinion appears to me, in effect, to disreregard these fundamental principles of appellate review in criminal cases. This is made manifest by the recital of facts therein. Ear from according the State the “most favorable” version of the proofs and inferences therefrom the opinion does the reverse. It gives the defense proofs the presumption of total credibility, accepts the testimony of defendant and Mrs. Erench as to defendant’s conduct on October 1, 1972 (unrefutable because of the death of the dece*81dent) in its most innocuous light, and downgrades those State proofs, which, indulgently viewed, could permit a finding of a willful, deliberate and premeditated killing of the victim by defendant.

¶6Under the proofs, the jury could have made or drawn any or all of the following findings or inferences. Defendant disliked the decedent and angrily told the Newton police chief, only two weeks before the killing, “I have a gun down at the tavern and I will shoot the son of a bitch.” See State v. Slobodian, 120 N. J. Super. 68, 75 (App. Div.), certif. den. 62 N. J. 77 (1972). Defendant disliked the decedent not only because the latter was a drunken bully but because he was still married to defendant’s paramour, was insisting on his court-ordered right to visit his child, then in Mrs. Erench’s custody, and was an obvious nuisance and obstruction to defendant’s free and unencumbered relationship with the woman. Defendant thus had a motive to eliminate the decedent. Cf. State v. Seefeldt, 51 N. J. 472, 488 (1968); State v. MacFarland, 83 N. J. L. 474 (E. & A. 1912); State v. Abbatto, 64 N. J. L. 658 (E. & A. 1900).

¶7As to the protestations by both defendant and Mrs. Erench of their mortal fear of bodily harm at the hands of decedent, the jury had ample basis to discount this evidence substantially. Although they testified that decedent made numerous threats on their lives as well as on the life of his young daughter, the jury could have concluded there was no credible evidence of any attempt by decedent to execute such threats. They might have found that there were, at most, one or two isolated assaults on Mrs. Erench which apparently did not require medical attention.

¶8Defendant prepared for decedent’s anticipated visit to the trailer where defendant maintained Mrs. Erench, scheduled for September 30, 1972, by bringing a shotgun to the trailer and waiting for him there, even though decedent’s previously declared purpose was only to visit his child. The jury could have well discredited defendant’s testimony that the gun was not loaded until moments before decedent’s *82breaking into the trailer. The jury could also have taken notice of the tendency of pellets from a shotgun to disperse over a wide area, as particularly verified by the proofs that 22 pellets were removed from the chest of the victim during the autopsy. This, in turn, could substantially discredit defendant’s testimony that he aimed for decedent’s arm but struck his chest because of the latter’s bodily movement, and could well support an inference that defendant formed the purpose, having previously deliberated on the subject while awaiting decedent’s arrival, to kill decedent when and if he entered the trailer. In this regard, it is settled law in this State that “No particular length of time need intervene between the formation of the purpose to kill and its execution. It is not necessary that the deliberation and premeditation should continue for an hour or a minute. It is enough that the design to kill be fully conceived and purposely executed.” State v. Mangano, 77 N. J. L. 544, 545, 546 (E. & A. 1909), cited in State v. DiPaolo, 34 N. J. 279, 295 (1961).

¶9In reference to the decedent’s conduct on the fatal morning a jury could have rejected any reasonable belief on the part of defendant that decedent, unarmed, represented such a threat of serious bodily harm either to defendant or Mrs. Erench as to have called for shooting him at the short range of a trailer living room with so lethal a weapon as a shotgun. Of defendant’s contradictory statements as to what decedent was doing immediately prior to the shooting the jury could have credited the one that decedent was moving away from his wife, thereby, along with other circumstances, warranting a finding that the shooting was not for the purpose of protecting her but wanton and intentional.1

¶10*83In sum, and without further extended illustration of my point from the proofs, the trial judge was well within the precedential guidelines cited above in submitting the issue of defendant’s guilt of first-degree murder to the jury. But even if this were not so, one cannot lightly jump to the conclusion of reversible error. I am willing to concede the substantiality of the court’s thesis that it is possible, in a given case, that the submission to a jury of an unwarranted charge of first degree murder where the proofs are susceptible of a finding of innocence may lead to a compromise verdict o£ a lesser degree of guilt rather than the acquittal which the jury would otherwise have returned. But the court here fails to appraise the likelihood that such a result transpired below by the established criterion of whether there was a “real” possibility that, or a “reasonable” doubt as to whether, the error led the jury to a result it otherwise might not have reached. State v. Macon, 57 N. J. 325, 336 (1971). In the terms of the practice rule, error is to be disregarded on appeal unless “clearly capable of producing an unjust result.” R. 2:10-2. Administration of those criteria must be made in the light of the entire record. So viewed, I would not find the error, if conceded, to be reversible. I believe the strong probability is that the jury determined that the defendant feared attack by decedent and intended to act in self-defense or defense of Mrs. French, but used unreasonably excessive force in that endeavor. The defendant lacking malice, the jury found him guilty of manslaughter rather than murder, following the trial court’s instructions in that regard. In short, I fail to discern any reasonable possibility that the manslaughter verdict in this case was a compromise one rather than a true assessment by the jury of the degree of defendant’s culpability under the evidence.

¶11Although I would, accordingly, not reverse the conviction, I would reduce the sentence of imprisonment imposed by the trial court. Defendant has no criminal background, is a prime subject for rehabilitation, and was found by the jury, in effect, to have had no malicious intent in this *84unfortunate episode. In that light a prison sentence of 4-6 years is clearly excessive. State v. Bess, 53 N. J. 10 (1968). I would reduce the sentence to one to two years.

¶12The observation of the majority that my conclusion for reduction of the sentence is “clearly anomalous for a crime which the dissent would otherwise portray as a cold-blooded murder” is not valid. My position as to sentence is predicated on the jury’s actual decision that the crime committed was manslaughter, not murder. I should have thought it obvious that my view as to the sufficiency of the evidence in relation to a charge of murder was founded on a view of the proofs which the jury might legitimately take. I have expressly emphasized, in footnote 1, supra, that that analysis of the proofs does not necessarily reflect my own findings of fact, which would be “inconsequential”.

¶13Without detailing defendant’s other assertions of error, I find no merit in any of them.

¶14Justice Clifford joins in this opinion.

¶15Hughes, C. J., and Scheeiber, J., concurring in the result.

¶16For reversal—Chief Justice Hughes, and Justices Mountain, Sullivan, Pashman and Scheeiber—5.

¶17For affirmance—Justice Clifford and Judge Conford—■%.