author: Morris, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. KENNETH DONALD ROUNTREE, DEFENDANT.
    Middlesex County Court Law Division—Criminal
    Decided June 16, 1969.

      Miss Cynthia M. Jacob, Assistant Deputy Public Defender, for defendant (Mr. C. Judson Hamlin, Deputy Public Defender, attorney).

      Mr. David J. Monyeh, Assistant Prosecutor, for plaintiff (Mr. Edward J. Dolan, Middlesex County Prosecutor, attorney) .
   Morris, J. C. C.

This is a pretrial motion by defendant Kenneth D. Kountree to dismiss an indictment charging him with having committed five violations of the law pertaining to the possession and sale of narcotics (N. J. S. A. 24:18-4 and N. J. S. A. 24:18-47). More specifically, he is accused of unlawful possession and sale of heroin on June 25, 1968, aiding and abetting one William Towns in making a sale of heroin on August 13, 1968, and unlawful possession and sale of heroin on August 28, 1968. However, his arrest did not take place until October 31, 1968, some four months after the first alleged occurrence and approximately two months after the last.

Defendant contends that he was denied due process of law under the Fourteenth Amendment to the Constitution of the United States because the time lapse between the dates of the alleged offenses and his subsequent arrest constituted delay infringing upon his ability to defend himself. It is further urged that the delay in swearing out a complaint against him denied to him the effective assistance of counsel under the Sixth Amendment to the Federal Constitution.

Defendant presents himself as one who is almost completely frustrated in the preparation of a defense to the charges by reason of his utter inability to recall the events of any of the days in question. According to his direct testimony as I understand it, defendant is unable to recall whether he possessed heroin on June 25, 1968 or August 28, 1968, whether he sold heroin on either or both of these dates, or whether he aided or abetted William Towns in making a sale of heroin on August 13, 1968. He is likewise unable to recall whether on the days in question he was present at the several locations where the offenses are said to have occurred. The direct and efficient cause of this failure of recollection is said to be the time lag between the dates of the offenses and the date on which the charges were filed, a period during which defendant had no knowledge or even an intimation that he was going to be accused.

Defendant is 21 years old. He was born and raised in New Brunswick. He completed the ninth grade in school, dropping out upon reaching his 16th birthday. His one steady job was with the Ford Motor Company from December 1966 through November 1967. Since then his employment has been sporadic, somewhat menial in nature and, in terms of total time, amounts to but a couple of months. He married on July 7, 1967.

While defendant displayed some reluctance to admit addiction, he stated that he was a heroin user before and during June and August of 1968. He said that he was “shooting up” from five to seven times each week. He conceded the possibility of his being in all but one of the locations at or near which the offenses are said to have occurred, either because of their proximity to the home of his parents whom he customarily visited on the average of twice each week or because some of the places were at or near bars or pool halls where he frequently socialized.

Defendant described his efforts to reconstruct his activities following his October 31 arrest. He said that a canvass of his wife, bis parents, his friends, his co-defendants, and some 20 to 30 other people has proved unavailing. The universal problem seems to be that too much time had elapsed for anyone to remember any particulars relating to the events of the days in question.

Cross-examination, although extensive, did little to refresh defendant’s recollection. Neither can it fairly be said that it demonstrated that defendant’s failure of recollection is feigned. It did, however, tend to illustrate in greater detail the unstructured nature of defendant’s existence. For some time he has been more or less aimlessly drifting along through life without discernable purpose or goal. Although styling himself as a devoted husband and homebody as well as a dutiful son, it is apparent that his frequent habit has been to spend considerable time in the downtown area of New Brunswick visiting various bars and pool halls at or near which some of the offenses charged are said to have occurred. He conceded that on various dates he may have seen or been in contact with certain other alleged narcotics offenders in such places as Louie’s Bar, the Marine Bar, the Golden Nugget and the New Brunswick Recreation.

Defendant’s ability to recall many other past events was amply demonstrated. However, these were the sort of things a person would ordinarily be likely to remember without difficulty. Eor example, his recollections of family birthdays, holidays, and the like were clear. He also remembered well the occasion of a prior arrest which occurred on his wife’s birthday Erorn this, however, it does not follow that he would necessarily be able to recall the events of June 25, August 13 and August 28, when he was arrested on October 31.

It is my conclusion, based upon what defendant had to say, how he said it and his demeanor generally, that he does not, in fact, presently recall the events of the days in question. Plainly, he does not deny that at various times during the general period he actually possessed heroin, for he admits being an almost daily user. Neither does he actually deny that he ever sold heroin or that he may have aided or abetted Towns in a sale. His problem is that absent recollection he cannot be certain of his guilt or innocence of the specific acts charged. Absent recollection he does not know whether he may have an alibi or other defense as to these particular charges. Absent recollection he cannot properly assist his attorney in the effective preparation of his case. All of this is alleged to be the product of what is claimed to be the unwarranted delay on the part of the police in swearing out the complaints against him.

The charges against this defendant stem from an undercover investigation conducted in the New Brunswick area by the New Jersey State Police which ran from May or June 1968, through October 31, 1968. It appears that Investigator "Victor Irizarry, operating under the supervision of Detective Frank La Citra, undertook to infiltrate the world of narcotics users and sellers by “making the scene” on a daily baisis with persons suspected of being involved in this t_ype of activity. His technique was to pose as a “junkie” himself, gain the confidence of other “junkies,” find out who was suppljdng narcotics locally, make “buys” from the sellers or “pushers,” and to assemble as much evidence as possible against as many offenders as possible to the end that a telling blow might be delivered to the whole local narcotics set-up in one fell swoop. The fell swoop in the case eventuated during the early morning hours of October 31 when approximately 50 suspects were rounded up by state, county and local police acting in concert.

A tabulation of the subsequent indictments reveals that 174 charges were made against 47 individuals. The pattern of the undercover agent’s activity is reflected somewhat by an analysis of the dates of the alleged offenses. It appears that 10 are said to have occurred in June, 32 in July, 54 in August, 47 in September, and 31 in October. Further insight is obtained by examining the pattern of repetitive counts. Analysis reveals none in June, 12 in July, 23 in August, 29 in September, and 23 in October.

Detective La Citra testified for the State. He has been a member of the State Police for 17 years. He has specialized in narcotics investigations since 1961, originally as an undercover agent. He has been associated with literally thousands of investigations. During 1968 ho was involved in over 800 narcotics matters. He explained that the nature of the traffic in narcotics is such that the method employed in this investigation is necessary to the effective detection and prosecution of such offenses. The delay in signing complaints and making arrests is not the result of any desire on the part of the police to violate any defendant’s constitutional rights. The reason is that once a complaint is signed the agent’s cover is “blown,” that is, his identity becomes known to other users and sellers, thereby terminating his effectiveness and thus bringing a particular investigation to an abrupt conclusion. Unless disclosure is withheld until the pattern and scope of the narcotics activity in a given area is fully probed, that investigation comes to an untimely close. Moreover, in a practical sense, there is a substantial waste because of the time and effort necessarily expended by an agent in achieving acceptance by traffickers in narcotics.

According to Detective La Oitra the length of a given undercover narcotics investigation depends upon a number of circumstances, but in his experience investigations usually last from four months to about one year. Among the factors to be considered in deciding when to terminate he cited the evaluation of how things were going in the field, the volume of the flow of narcotics, the number of people active in the illegal activity in the given area, whether new contracts were being made, whether it appeared that prospects were good for reaching sources of supply, whether the flow of information was good and, in short, on the basis of the total picture as it appeared to exist to the officer in charge. He conceded the difficulty in determining empirically when the end had been reached, but acknowledged that a particular investigation reached its peak when the “buys” became more and more repetitive from the same individuals and the number of new offenders being contacted dropped off. He expressed the view, however, that some repeat buys from the same individual were desirable in that this demonstrated that a given defendant was a “pusher.” Needless to say, the investigation is aimed more at the “pushers” than the addicts. He expressed his opinion that the appropriate termination point was reached for this investigation in October.

It appears that our own appellate courts have not had occasion to deal with this precise problem. However, in Washington, D. O., a series of reported cases have emerged as a result of undercover police activity in the sphere of narcotics detection. It is upon the basis of these authorities that defendant seeks to have the indictment dismissed.

Although the State here suggests otherwise, it is clear that an issue of this kind can no longer be resolved in simple terms of the applicable statute of limitations, as appears to have been done in Nickens v. United States, 116 U. S. App. D C. 338, 323 F. 2d 808 (1963). In a concurring opinion, Judge Wright sounded the tocsin with particular relation to the special problem of avoiding violation of Sixth Amendment rights of persons who are subjects of undercover narcotics investigations. He acknowledged that while ordinarily mere delay in presenting a charge will rarely work a deprivation of this constitutional right, where the delay is purposeful or oppressive an indictment obtained within the period of the statute of limitations may nonetheless come too late to square with the Sixth Amendment, citing Pollard v. United States, 352 U. S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957); Mann v. United States, 113 U. S. App. D. C. 27, 29-30, n. 4, 304 F. 2d 394, 396-397, n. 4 (1962), certiorari denied, 371 U. S. 896, 83 S. Ct. 194, 9 L. Ed. 2d 127 (1962); United States v. Provoo, 350 U. S. 857, 76 S. Ct. 101, 100 L. Ed. 761 (1955), affirming mem. Petition of Provoo, 17 F. R. D. 183 (D. Md. 1955), and Taylor v. United States, 99 U. S. App. D. C. 183, 238 F. 2d 259 (1956).

What has perhaps proved to be the leading case, and one upon which defendant places substantial reliance, is Ross v. United States, 121 U. S. App. D. C. 233, 349 F. 2d 210 (1965). There the Circuit Court of Appeals reversed a conviction for a narcotics violation on the ground of denial of due process because the defendant was unable to defend himself where the complaint against him was not sworn out until seven months after the alleged offense and, apart from the narcotics, the prosecution’s case consisted solely of one undercover policeman’s uncorroborated testimony of a single sale to him based upon a recollection which depended entirely upon reference to his notebook, and defendant was unable to recall the events of the day of the offense.

In reaching this result the court recognized the substantial public interest in effective police work to detect violations of narcotics laws and the validity of undercover investigations to accomplish this. It was conceded that an undercover agent could not continue to be effective once it became known that he was an agent, a fact which would become widely known immediately upon his swearing out the first complaint. There fore, some purposeful delay between the offense and the arrest is inevitable and hence to a degree acceptable. The rub comes when the delay reaches such a proportion that the ability of a defendant to defend is materially affected. This requires a striking of a balance between the competing interests of society and the individual if one or the other is not to be sacrificed completely.

The result in Ross was posited upon three factors: first, the length of the purposeful delay; second, the basis of the identification of defendant, and third, the effect of the delay upon defendant’s ability to rebut the identification. The Ross majority concluded that the delay was too long because the prosecution failed to justify the extension of the investigation beyond what would have been an acceptable four-month period, and while the factors which the police considered in deciding when to terminate the investigation may have been relevant, they did not in any case take into account the interest of the accused in knowing as soon as possible of the charge against him in order that he might have prepared most effectively to rebut it. In addition, the court was greatly distressed by the method of identification, apparently feeling that the uncorroborated testimony of a single officer who lacked independent recollection was of insufficient weight to form the basis of a conviction almost as a matter of law.

In connection with the third factor the court attached significance to defendant’s limited education; his circumstances, in that there appeared to be little to differentiate one day from another, especially as they began to recede into the past; that he had no regular employment; that he kept no diary or other record, and that he received little mail. The court was of the view that the failure of memory and his inability to reconstruct what he did not remember virtually precluded Ms showing in what respects his defense might have been more successful if the delay had been shorter.

In Cannady v. United States, 122 U. S. App. D. C. 120, 351 F. 2d 817 (1965), the majority refused to reverse on Boss grounds because at trial defendant testified in considerable detail about the circumstances surrounding the alleged offense. The conclusion that the defense was thus not prejudiced by a 4)^-month delay was considered controlling. See also Mackey v. United States, 122 U. S. App. D. C. 97, 351 F. 2d 794 (1965).

Powell v. United States, 122 U. S. App. D. C. 229, 352 F. 2d 705 (1965), decided two months after Ross, is something of an anomaly in that the majority opinion purports to follow Ross on the one hand while inferentially rejecting it on the other. It is to be noted that the panel deciding Powell included the dissenting judge in Ross. His Powell brothers did not participate in Ross, nor did any of the three participate in Cannady. The majority opinion in Cannady was authored by a member of the Ross majority.

The Poiuell case involved a five-month delay between completion of the police case against defendant and his arrest on a narcotics charge. The undercover man operated for seven months in the field. At the end of this period he filed complaints against 102 persons. While defendant alleged that the delay was purposeful, deliberate, vexatious, arbitrary and oppressive, all to his prejudice and offensive to his Sixth Amendment rights, the majority conceived the complaint as relating to the Fifth Amendment because the delay was between offense and arrest, citing Nickens v. United States, supra, thereby giving the issue the complexion of a statute of limitations question, nevertheless, the majority felt obliged to consider the situation in the light of Ross. It said:

“We think that an accused must show two things in order to invoke an exercise of our supervisory power because of alleged basic ‘unfairness,’ * * * resulting from claimed delay in his arrest: that there was no legitimate reason for the delay, and that he was prejudiced by the delay.”

The majority here was of the view that the burden of proof was on defendant to establish his claim, citing Nardone v. United States, 308 U. S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939); Wilson v. United States, 218 F. 2d 754, 757 (10 Cir. 1955) and Lotto v. United States, 157 F. 2d 623, 626 (8 Cir. 1946). It concluded that he had failed to meet that burden.

Parenthetically, the question of where the burden of proof lies and what that burden is appears to be open to possible debate. One view seems to suggest that it is to be controlled by the determination of whether the issue is viewed as one resulting from the assertion by defendant of a constitutional right. As observed by Judge Wright in his concurring opinion in Nickens, supra:

“A showing of prejudice is not required when a criminal defendant is asserting a constitutional right under the Sixth Amendment. Taylor v. United States, supra; Petition of Provoo, supra, [17 F. R. D.], at 203; United States v. Lustman, 2 Cir., 258 F. 2d 475 (1958), cert. denied, 358 U. S. 880, 79 S. Ct. 118, 3 L. Ed. 2d 109 (1958). On the contrary, the Government bears the burden of proving ‘that, the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay.’ Williams v. United States, supra, 102 U. S. App. D. C., [51], at 53, 250 F. 2d [19], at 21.”

However, in Jackson v. United States, 122 U. S. App. D. C. 124, 351 F. 2d 821 (1965), Judge Wright, writing for a unanimous court, seems to accept the proposition that in cases of this type (undercover narcotics, five-month delay, uncorroborated testimony of the agent without independent unrefreshed recollection, one-year field operation by agent, five defendants, etc.) the burden is on defendant to make some initial showing. This was characterized as not being proof of prejudice beyond a reasonable doubt or even by a preponderance of the evidence. Rather, quoting Boss, the accused is required to establish only “a plausible claim of inability to recall or reconstruct the events of the day of the offense.”

Judge Wright also dissents in Powell, taking the majority to task for its failure to give due regard to Ross. However, his main complaint plainly relates to his disapproval of permitting convictions to stand predicated upon the uncorroborated testimony of an undercover agent in spite of the fact that prosecution was purposefully delayed for a period of several months during which the accused-to-be, innocent or guilty, would have no way of knowing the Government was holding a charge against him. As previously noted, this was a substantial factor in producinng the result in Ross where the majority went so far as to state the following:

“It seems fair to say that our solidarity as to the remand in this ease, and the faet of identical remands in other pending appeals, reflected a growing apprehension upon the part of many members of this court as successive cases have come to establish the pattern and effect of the undercover narcotics operations of the Metropolitan Police. The recurring spectacle [emphasis added] of convictions based solely upon the testimony of a police witness who, by reason of lapse of time, could not testify on the basis of unaided personal recollection, began to implant doubts as to the propriety of permitting the reasonableness of the delay, in this very narrow and specialized class of narcotics cases, to be ‘controlled exclusively by the applicable statute of limitations.’ ”

In sum, the Powell majority concluded that defendant failed to impeach either the necessity for or the investigative activities of the agent and therefore fell short of his establishing his due process claim. It held that both the absence of a valid reason for pre-arrest delay and the fact of prejudice are necessary to raise the due process claim. The claim of failure of recollection, standing alone, was found to bo lacking in constitutional dimension.

As for Ross, the majority in Powell observed:

“The division of the court which decided Ross failed to follow a long line of decisions of the Supreme Court and of this court, including our own recent decisions in Morgan v. United States, 115 U. S. App. D.C. 310, 319 F. 2d 711, rehearing en banc denied, cert. denied, 375 U. S. 884, 84 S. Ct. 158, 11 L. Ed. 2d 114 (1963), and Wilson v. United States, supra, note 3. Indeed the Wilson court explicitly stated: ‘The uncorroborated testimony of a narcotics agent is sufficient to support conviction for violation of narcotics laws.’ [Wilson v. United States, 118 U. S. App. D. C. 319, 335 F. 2d 982 (1964)] * * * this court rejected, by a vote of 6 to 3, rehearing en bane in Wilson, not only on the corroboration phase of the case but also on the lapse of time between the offense and the arrest.”

Another noteworthy case is Woody v. United, States, 124 U. S. App. D. C. 192, 370 F. 2d 214 (1966). As in Boss, defendant was convicted for the sale of narcotics solely on the basis of the uncorroborated testimony of an undercover agent. Here the delay between offense and arrest was four months, a period which the Boss court seemingly would have found acceptable there. The reversal, also as in Boss, was by a split vote of 2-1. The three separate opinions filed in Woody all recognize the validity of the principles enunciated in Boss and accept them as controlling. However, the majority achieved concurrence via entirely different routes, and one of the majority opinions is more in keeping with the views expressed in the dissent with respect to the standard to be applied in determining under what circumstances a four-month purposeful delay will preclude prosecution.

All three members of the Woody panel agreed that a delay of four months is not so unreasonable as to warrant reversal of a conviction, absent special circumstances, even though defendant claimed an inability to recall the events of or his whereabouts on the date of the offense. Judge McGowan, a member of the Boss majority, found sufficient special circumstances from the fact that two weeks before the complaint was filed a potential witness for defendant, a woman with whom he may have been living, passed away, thereby depriving him of a possible alibi witness. This was coupled with the further fact that a person whom defendant was planning to call as his witness became unwilling when he himself was indicted. Judge McGowan seemingly viewed this as a dubious prosecution tactic since the offense upon which that charge was made was fairly old and the indictment did not come until after the prosecution became aware of defendant’s intention to use him as a defense witness.

Judge Bazelon, the other member of the majority, concentrated on finding fault with the method of identification and the tactics of the police. In sum, he based his conclusion upon his analysis of the identification process which he judged to be unreliable, and what he called the absence of police efforts to reduce the prejudice. Judge Bazelon expressed the view that the reliability of the identification might be enhanced where it is possible for the police to enter into repeat sales with the suspect, make the identification without unnecessary delay after the sale, obtain corroborating witnesses to the transaction, or assure that the undercover officer makes complete notes and confronts personally the accused at the time of the arrest, instead of waiting until trial perhaps months later.

Judge Burger, now Chief Justice designate of the United States Supreme Court, author of the Nichens majority opinion, here dissents. In his view Boss is a case to be read restrictively since it represents the outer limit of burdens placed on the prosecution of narcotics peddlers. He finds a total absence of any special circumstances to justify Judge Bazelon’s attempted extension of Boss. As to Judge McGowan’s assessment of the presence of prejudice in the case by reason of the death of one potential witness and the circumstances of the unavailability of another, Judge Burger simply disagrees because ultimate and actual prejudice was not in his judgment demonstrated. Bather it was all potential and essentially speculative. Judge Burger notes that Judge McGowan, as an author of Boss, expressly rejected therein the basis upon which Judge Bazelon here posits his thesis for reversal of the conviction.

Erom the foregoing it is quite clear that no uniform test has as yet been devised which has gained universal acceptance. It is quite apparent that a substantial philosophic conflict exists among the several judges who have participated in these decisions. However, based upon my evaluation of the problem involved it is my view that a given case must be approached on essentially the following basis:

(1) Whether a defendant’s Sixth Amendment rights have been violated is not a matter which can be resolved simply by reference to the pertinent statute of limitations.

(2) If the delay between offense and charge is purposeful and oppressive, an indictment obtained within the statute of limitations may nevertheless be constitutionally offensive.

(3) In the utilization of the undercover agent technique in the detection of narcotics offenses some purposeful delay between the offense and the arrest is inevitable and hence to a degree acceptable.

' (4) When the delay reaches such a proportion that the ability of a defendant to defend is materially affected it is necessary to strike a balance between the competing interests if one or the other is not to be sacrificed completely.

(5) The initial burden is on the accused to demonstrate a plausible claim of inability to remember or reconstruct the events of the day of the offense and that he has been prejudiced thereby. This burden of proof is not proof beyond a reasonable doubt nor even by proof that is clear and convincing. Rather, it seems more logical to require the accused to establish his claim by a preponderance of the probabilities, that is, something beyond a mere assertion of an inability to recall or reconstruct. With regard to the showing of prejudice, however, a rule of reason must prevail. It may very well be in a given case that the inability to recall may virtually preclude a showing as to how the defense may have been more successfully prepared had the delay been shorter.

(6) If the accused is able to make such a showing, it then becomes the burden of the prosecution to establish, at least clearly and convincingly and probably beyond a reasonable doubt, the validity of a claim of necessity for the pre-arrest delay J the relevance of the reasons assigned in support thereof, and that the decision as to when to terminate the investigation took into account not only the police and public interest'in effective narcotics law enforcement but also that of the accused-to-be in knowing as soon as possible after the criminal event that he was being charged in order that he might prepare most effectively to defend.

(7) The balance test cannot be performed on the basis of a precise formula. A weighing of all pertinent facts and circumstances on both sides must be undertaken. The ultimate result in a particular situation must turn in the final analysis upon considerations of fundamental fairness and essential justice.

(8) A purposeful delay of four months is not per se prejudicial/ The shorter the delay the less likelihood of prejudice. Conversely, the longer the delay the greater the possibility of prejudice.')

(9) The question of the sufficiency of the evidence as to the identity of a defendant, based entirely upon the uncorroborated testimony of an undercover agent with no independent recollection of the particular defendant or the unlawful transaction, but whose identification testimony and version of the occurrence is based wholly upon a recollection refreshed by reference to his contemporaneously made notes, is irrelevant to the inquiry.

It appears that a number of the judges participating in the federal decisions referred to herein entertain the view that minimum standards of proof to establish guilt beyond a reasonable doubt ought to require something more reliable. Perhaps the law ought to be changed, but as matters presently stand, jurors are permitted to find facts based upon the testimony of a single witness whom they find to be worthy of belief. Jurors are made aware of the many and varied criteria which they may consider in assessing the credibility of a witness. In addition, the witness may be subjected to broad and intensive cross-examination so that the quality and reliability of the identification testimony can be fully tested. Surely the time interval between offense and trial can be brought out and the limited ability of the agent to recall demonstrated. Moreover, the nature and scope of the agent’s undertaking, the length of the investigation, the number of other contacts involved, and the agent’s training and experience, or lack of same, are among the legitimate area of inquiry. In the further light of an effective instruction by the trial court as to the presumption of innocence and the burden of proof, it is difficult to agree that a problem even exists apart from whether it bears relevance to the question here presented. In my judgment, it does not.

At any rate, it is my determination that there was a purposeful delay on the part of the police in this instance as it affects defendant, to the extent of four, two and one-half, and two months as to the alleged offenses of June 25, August 13 and August 28, respectively. I find that defendant has met the initial burden of demonstrating a plausible claim of inability to remember or reconstruct the events of any and all of the days of the alleged offenses.

I find, further, that as a consequence his ability to defend is to some degree materially affected because he is unable to assist his very able and ordinarily effective counsel in being completely effective. For example, counsel is unable to determine whether defendant has an alibi and, if so, whether proofs can be assembled to document it. Similarly, if defendant was in fact present at the time and place of the alleged occurrence and was able to recall it, he might also be able to assist counsel in identifying witnesses who also may have been present who could testify to his nonparticipation in the criminal event, if that be the fact. Likewise, if defendant could recall and actually remembered that he did perform one or more of the unlawful acts charged, the communication of the fact of his guilt to his attorney would enable counsel to effectively advise defendant in such areas as the prospective advantage of a plea of guilty as it relates to sentence and as a step forward in the rehabilitation process. In this latter connection, counsel is powerless to act because a plea of guilty would not be accepted by, the court unless defendant was not only willing but able to admit his guilt, it being accepted practice in such cases for the court to require a defendant to narrate the factual basis upon which the plea is predicated.

On the other hand, it is my further determination, on the basis of the testimony of Detective La Citra, that the State has established as a fact beyond a reasonable doubt that the delays between offense and charge were necessary, and that the decision as to when to terminate the investigation took into account the respective interests of the public and the defendant.

Initially if should be observed that the longest delay insofar as defendant is concerned is four months. As noted, a four-month delay is not por se offensive. There appears to be no reported case in which a delay of as little as four months was the basis, wholly or in part, for the reversal of a conviction. The cases suggest that an undercover narcotics investigation by its nature appears to typically require a life-span ranging from four months to a year in order to effectively achieve its laudable objective. This accords also with Detective La Citra’s testimony as to his experience. I find that Detective La Citra, in deciding when to terminale this investigation, was not unmindful of the constitutional rights of the various suspects including those of defendant. Though not readily measurable, it is my impression that it played a part in arriving at his decision. He declared, convincingly in my view, that he would not intentionally violate anyone’s constitutional rights by any decision he might make as to the form, course or length of an investigation. This is not to say that it could not occur unintentionally. All it means is that as a veteran police officer with heavy narcotics experience this officer recognizes that the rights of suspects must be kept in mind at all times. The relatively short four-month life span of this investigation bespeaks deference to the right of an accused to know as soon as practically possible.

A further evidence of Detective La Oitra’s concern for the rights of potential defendants is the policy of making repeat buys from the same sellers. It is argued that as soon as the repeat buys began to occur in substantial numbers the usefulness of the investigation was over and should have been terminated out of deference to the rights of prospective defendants to know that they were to be charged. However, the clear and stated purpose of making repeat buys was to make certain that these sellers were the persons actually participating in a repetitive pattern of illegal narcotics activity.

Aside from the fact that it makes certain that the investigation is reaching the “pushers,” it can readily be seen that the policy of making repeat buys has the beneficial effect of minimizing the possibility of an erroneous identification, something of which defendant prospectively, speculatively and prematurely complains. As a matter of fact, this practice is something which Judge Bazelon specifically suggests ought to be done for the protection of persons who are the subjects of this kind of undercover investigation.

I find, further, that the statistical data, if anything, supports the police decision to keep this investigation open through October. All of the legitimate objectives in terms of reaching new sellers and making the very desirable repeat buys continued into October. There is no legitimate basis for the argument that as soon as the percentage of repeats exceeded the percentage of new buys the investigation ought to have been terminated. This simply is not something which can be determined empirically. It is an easy matter after the fact to tabulate the results and argue retrospectively with the aid of comparative percentages and graphs that an investigation should have been terminated at some earlier point in time. This approach ignores other practical considerations which the person in charge of the investigation must take into account as it progresses and unfolds. Moreover, this person has a close-up feel of the situation based upon his day-to-day contact with the undercover agent, his knowledge of the particular area unnder investigation, the level of narcotics activity which he believes exists therein based upon the flow of information, and many other intangibles, none of which can be tabulated or graphed. Based upon his feel of the case he is the one best able to judge whether permitting the investigation to continue is likely to prove productive.

I find that Detective La Citra’s opinion that this investigation was properly terminated in October is entitled to substantial weight. I base this in part upon his impressive qualifications and broad experience in the field of narcotics investigation. In addition, he was the person actually in charge of this investigation and as such has the advantage of knowing of his own personal knowledge the situation in the field as it existed on a day-to-day basis. Moreover, he demonstrated that he is and was aware of and actually then considered the relevant criteria which the decision making process requires. Thus, the State has proved the justification for the delay beyond a reasonable doubt.

In the final analysis, the question would appear to be whether defendant must accept the possible detriment occasioned by the legitimate delay in deference to the need of the public for effective narcotics law enforcement. Detection and prosecution of narcotics offenses present many practical difficulties. The activity is customarily conducted in secret. Transactions are always consensual. There are no complaining witnesses or victims in the usual sense. The magnitude of the public need cannot be underestimated. Drug traffic and narcotics abuse is a matter of grave national concern. Drug addicts, in order to support their habits, resort to robbery and burglary. Millions of dollars each year is taken from victims too numerous to count. The public fear is ever increasing. Many addicts resort to pushing narcotics in order to fund their habits. This creates more and more users. More and more lives are thus being wasted as a result of the cancerous growth of this traffic. Use of the undercover agent by the police has proved to be an effective means of hampering narcotics traffic. See Chapter 8, Narcotics and Drug Abuse, The Challenge Of Crime In A Free Society, A Report By the President’s Commission On Law Enforcement And Administration Of Justice (1967), at p. 211 et seq.

While defendant is handicapped to some degree by his inability to recall, this is not prejudice of sufficient magnitude or so offensive to his constitutional rights as to require dismissal of the charges. At trial the State will still have the heavy burden of proving the guilt of defendant beyond a reasonable doubt. Defendant does not have to prove his innocence. Through counsel he will have the opportunity for thorough cross-examination of the State’s witness. The machinery exists for a scrupulous examination of the basis of any identification testimony even before it reaches the ears of the jury. With all of the other traditional safeguards defendant is not helpless to defend. At most it is made a little more difficult. On balance, it is my conclusion that any detriment to defendant here present is far outweighed by the greater public need for effective narcotics law enforcement in the broad general sense coupled with the substantial legitimate reasons for the relatively short pre-arrest delay. The motion to dismiss the indictment is consequently denied.


source: Caselaw Access Project

author: Kilkenny, J. A. D.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANTHONY CASALE, DEFENDANT, AND DANIEL DEMICHAEL, APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 19, 1969
    Decided June 4, 1969.

      Before Judges Coneord, Kilkenny and Leonard.

      Mr. Balph G. Mesce argued the cause for appellant.

      Mr. Donald 8. Coburn, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney).
   The opinion of the court was delivered by

Kilkenny, J. A. D.

Daniel DeMichael prosecutes this appeal from an order of the Law Division, entered on December 19, 1968, denying his motion to suppress certain evidence seized by the police and the prosecutor’s investigators on April 22, 1966, in execution of a search warrant, at premises owned by DeMichael, known as 865 Clifton Avenue, in Newark.

Denial of the motion to suppress was based solely on the ground that DeMichael was “not an aggrieved person” within the meaning of B. B. 3:2A-Q(a). DeMichael’s motion sought only an order to suppress the seized evidence, on the ground that there was an unlawful search and seizure under the warrant and he had “reasonable grounds to believe that the evidence obtained may be used against him in a penal proceeding.” The trial court treated the motion as including also an application by DeMichael for the return of the seized articles and, for that reason, included in its order a denial of the motion to “return” the seized evidence.

The trial court, in its opinion, properly observed that DeMichael had not asserted that the items seized by the officers were in his possession or claimed by him. It also noted that the articles, which were found in a vent pipe on the roof of DeMichaePs house, were contraband — items used in the crimes of lottery, bookmaking, or both —• and, therefore, not returnable, even if the motion to suppress had been granted. On this appeal, DeMichael asserts no property right in the seized articles and, as in the trial court, makes no claim for a “return” of the seized evidence.

The basic question for resolution by us is whether, under the particular facts herein, DeMichael had legal standing to move under R. R. 3 :2A-6 (a) for a suppression of the seized evidence. The rule permits a motion to suppress by one “having reasonable grounds to believe that the evidence obtained may be used against him in a penal proceeding.” On the basis of the evidence before us DeMichael was never arrested, indicted or made a defendant in any penal proceeding. He has not been threatened with being made a party to any penal proceeding, although more than three years have elapsed since the seizure. One Anthony Casale has been in-dieted and is awaiting trial in connection with the evidence seized. In the trial court, on the hearing of the motion, the assistant prosecutor, on behalf of the State, stated that “no charge has been made against Mr. DeMichael * * * none is intended. * * * That is the State’s position, your Honor.” We have been similarly assured by the State.

We are mindful that the statutory limitation of criminal prosecutions in the case of offenses not punishable with death is five years. N. J. S. 3A :159~2. Gambling, bookmaking, games of chance or lotteries are also expressly made subject to the five-year limitation. N. J. S. 2A :159-4. Therefore, it is still possible for defendant to be indicted. However, it cannot reasonably be said herein, either as of now or as of the time of the trial court’s disposition of the motion, that DeMichael is “threatened” with any penal proceeding, or has “reasonable grounds to believe that the evidence obtained may be used against him in a penal proceeding.” Absent such a showing and absent the existence of any pending penal proceeding against DeMichael, the facts herein do not meet the requirements for legal standing under R. R. 3 :%A-6(a).

We leave open the question as to what would be sufficient to give legal standing. We decide only that DeMichael did not have it here.

We recognize that when DeMichael did make his motion, returnable originally on July 29, 1966, he personally may have then entertained “reasonable grounds to believe” that the evidence seized might be used against him in a penal proceeding. The warrant was directed to a portion of premises owned by him, was executed against his premises and, presumably, incriminating evidence of a lottery operation was found in a vent pipe on the roof of his property. But the long delay in the court's disposition of the motion — the matter not being heard until November 1, 1968 and the order not made until December 19, 1968 — has eliminated any real “threat” of penal prosecution and has annihilated any “reasonable grounds to believe” that the evidence will be used against him in a penal proceeding. To this, we add the State's assurances.

We appreciate that such a long delay in disposing of a motion might prejudice a potential defendant. Here, we are told that DeMichael still had, when the court denied the application, a number of witnesses available to testify in support of his motion, with a fresh recollection of what they knew and saw. He fears that such witnesses may not later be available if he is eventually indicted near the end of the limitations period. But we need not now decide what may turn out to be a moot question.

We conclude that, as of the time of the hearing of the motion and the order under review, DeMichael did not, under the facts of this case, have the necessary legal standing under R. R. 3:2J-6(a) to have a hearing on the merits of his motion. The trial court’s disposition was proper.

The order under review is accordingly affirmed. No costs.


author: Kilkektny, J. A. D. Conford, S. J. A. D.

text:
    GUSTAVE E. WIEDENMAYER, ET AL., ETC., PLAINTIFFS-RESPONDENTS, v. JOHN SEWARD JOHNSON, JR. ET AL., DEFENDANTS-RESPONDENTS, AND CHARLES E. VILLANUEVA, GUARDIAN AD LITEM FOR BRUCE ALEXANDER JOHNSON AND JENNIE ANNE JOSEPHINE JOHNSON, MINORS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued May 19, 1969
    Decided June 17, 1969.
    Conford, S. J. A. D., dissented in part.

      Before Judges Coneokd, Kilkenny and Leonakd.

      Mr. Charles E. Villanueva argued the cause for appellant (Messrs. Van Riper, Belmont & Villanueva, attorneys; Mr. John J. O'Grady, of the New York Bar, and Messrs. Gadwalader, Wichersham & Taft, of counsel).

      Mr. James G. Pitney argued the cause for plaintiff-respondents (Messrs. Pitney, Hardin & Kipp, attorneys).

      Mr. Thomas J. Bitar argued the cause for R. Carter Nicholas, guardian ad litem for certain minors (Messrs. Jeffers and Billon, attorneys).

      Mr. Alfred C. Clapp argued the cause for defendant-respondent, guardian ad litem for John Seward Johnson, III.
   The opinion of the court was delivered by

Kilkektny, J. A. D.

Charles E. Villanueva, as guardian at litem for Bruce Alexander Johnson and Jennie Anne Josephine Johnson, appeals from that portion of the Chancery Division judgment, entered on May 29, 1968, which provides:

“1. The determination of the plaintiffs to distribute and pay over to John Seward Johnson, Jr. all of the Trust Property to enable him to establish a new trust in the form annexed hereto is confirmed, ratified and approved, and the plaintiffs are authorized to make such distribution at such time as they shall determine.”

Plaintiffs cross-appeal from that part of the same judgment, which provides:

“5. Charles E. Villanueva is allowed $40,000 for his services as Guardian Ad Litem, as well as his unreimbursed expenses and out-of-pocket disbursements aggregating $806.00.”

They assert that the allowance was excessive and should be reduced.

Alfred C. Clapp, as guardian ad litem for John Seward Johnson, III, also cross-appeals, and for the same reason, from that part of the judgment allowing “Charles E. Villanueva * * * $40,000 for his services as Guardian Ad Litem.”

We affirm the portions of the judgment brought before us for review, both as to the main appeal and as to the cross-appeals.

As to the main appeal we affirm essentially for the reasons expressed by Judge Kingfield in his oral opinion rendered at the close of the proofs, and for the further reasons expressed in the brief supplement herein.

As to the cross-appeals covering the $40,000 award made to Charles E. Villanueva for his services as guardian ad litem, we find a proper exercise of the discretion vested ■in the trial judge in such matters, based upon the totality of the circumstances, as evidenced by the record herein, especially in the light of the fact that the subject matter of this trust is valued at approximately $18,000,000 and the litigation involved important and difficult issues of law and equity.

The inter vivos trust in issue was one of six substantially similar trusts which John Seward Johnson established in 1944 for each of his six children. We are concerned herein only with the one established essentially for the benefit of his son John Seward Johnson, Jr. The original corpus of the trust consisted of shares of common stock of Johnson & Johnson, Inc., and the approximate value of that corpus as of this time is the large sum mentioned above.

The trustees were directed to pay to the son “so much of the net income in any year as the trustees in their absolute and uncontrolled discretion may deem to be for his best interests,” following his attainment of majority. We are not concerned herein with the payment of income. Our concern is with the power given to the trustees:

“3. To distribute the Trust Property as follows:
(a) from time to time and whenever in their absolute and uncon- ' trolled discretion they deem it to be for his best interests, to use for or to distribute and pay over to John Seward Johnson, Jr., or to his guardian ad litem if he is under the age of twenty one (21) years, to be his absolutely, outright and forever, any or all of the Trust Property.”

The son reached his majority a number of years ago.

“The absolute and uncontrolled discretion” of the trustees to distribute and pay over to the son “any or all of the Trust Property” is limited only by the trustees’ determination that such distribution of the corpus is for the son’s “best interests.” The trustees so decided herein. If they could make that distribution to the end, as the trust indenture expressly stated, that the trust property would be the son’s “absolutely, outright and forever,” it seems logical to conclude that the trustees could, to safeguard the son’s best interests, condition the distribution upon his setting up a substituted trust. The son is satisfied with that condition and the distribution was approved and confirmed, a copy of the son’s trust agreement being annexed to the judgment.

The son’s “best interests” is not defined in his father’s trust indenture. The expression is not limited to a finding that distribution must be to the son’s best “pecuniary” interests. His best interests might bo served without regard to his personal financial gain. They may be served by the peace of mind, already much disturbed by matrimonial problems, divorce and the consequences thereof, which the new trust, rather than the old contingencies provided for in his father’s trust indenture, will engender. Of what avail is it to rest one’s “best interests” on a purely financial basis, and without regard to the effect upon a man’s mind, heart and soul, if the end result would produce a wealthier man, but a sufferer from mental anguish?

The creator of this inter vivos trust was obviously concerned primarily with his son’s best interests. The interests of others were important, but they were only secondary in relation to the son. Courts may not substitute their opinions as to the son’s “best interests,” as opposed to the opinion of the trustees vested by the creator of the trust with the “absolute and uncontrolled discretion” to make that determination. The trustees’ decision herein was made in good faith, after consideration of all the facts and attendant circumstances, and for reasonably valid reasons. Only unwarranted judicial interference would induce a negating of the eom'se pursued by the trustees.

The basis of the argument by those attacking the action of the trustees is that the children, Bruce and Jennie, would suffer under this new arrangement a loss of their contingent remainder interest, provided for in the settlor’s original trust indenture. However, if distribution of the corpus of the trust were made to the son absolutely, as permitted within the unqualified discretion of the trustees, as opposed to the challenged distribution subject to the condition imposed, the same loss of the contingent remaindermen’s interest would equally be effected. Thus, these children are not suffering by this approved new setup the loss of any vested remainder interest. The basic intention of the original creator of the trust, that the trustees’ decision should serve the son’s best interests, is not being defeated by the distribution made by the trustees.

Conford, S. J. A. D.

(dissenting in part). I concur in the court’s affirmance of the counsel fee awarded appellant guardian ad litem. I dissent from the affirmance of the trial court’s order of approval of the so-called “distribution” by the trustees of the trust corpus to the life beneficiary, John Seward Johnson, Jr. (“Seward” hereinafter), solely for the reason that I do not believe that what the trustees propose to do constitutes a distribution at all, within the fair intent of the trust instrument, but rather an impermissible alteration of the substantive trust terms.

I conceive that what has happened here is the formulation by Seward and the trustees of a plan simply to alter the provisions of the trust so as to eliminate therefrom the contingent remainder to Seward’s “issue in equal shares per stirpes ” in the event of his failing effectively to exercise a power of appointment by will, and to substitute a different contingent remainder which would, among other things, disqualify two of his children, Bruce and Jennie, eo nomine, from participation as his “issue” under the contingent remainder formulated by the settlor. The plan would also disqualify those children as potential appointees under any will of Seward.

The proposal approved by the trial court was eoncededly submitted to the trustees by Seward’s counsel. The record of this case indicates beyond doubt that the trustees had previously refused a number of requests by Seward for advance of part of the principal trust estate, and this primarily for a reason I need not specify but well-known to all involved in this case. They are satisfied that his needs are amply provided for by their distribution to him of all of the net income of the estate. They have been making such distribution and will continue to do so. They do not now intend, and never have, “to use for or to distribute and pay over” to Seward “to be his absolutely, outright and forever,” any part or all of the trust property, as the trust instrument empowers them to do in their absolute discretion.

The specific proposal approved below is for the trustees to execute an instrument purporting to distribute the trust estate to Seward, but expressly conditioned upon his simultaneously executing an irrevocable trust of the whole estate back to the trustees on the identical trust terms, insofar as control of distribution of the trust principal to Seward thereafter is concerned, and otherwise significantly altered from the original trust terms primarily to cut out Bruce and Jennie as eligible contingent remaindermen after Seward’s life estate or as eligible appointees under Seward’s power of appointment by will. There is no question whatever that the trustees would not transfer anything to Seward without the simultaneous transfer back by him in trust. And this charade is approved solely in order to promote Seward’s present peace of mind in knowing that Bruce and Jennie are forever and irrevocably disqualified as potential sharers in the settlor’s disposition.

My basic disagreement with the majority can be simply stated. Preliminarily, I do not reach the question as to the scope of the trustees’ discretion. What concerns me is that there has neither been, nor proposed, any distribution, but only the going through the motions of one. The terms of the trust instrument relating to distribution call for realistic, not sophistic, construction. When the transaction here approved is consummated, as it must be, in a single, integrated exchange of signed documents, Seward will walk out of the closing transaction with not one iota of greater beneficial interest, present or future, in the principal of the trust estate, than when he walked into the closing to play his part. But the trust terms will, in effect, have been materially altered. That alteration will have been the only net result of the arrangement — just as it is the only result intended by the trustees.

The argument advanced by respondents is that the proposal is for a conditional distribution — that if the trustees may “use for” or “distribute to” Seward all of the principal absolutely, as the instrument states, they may do so conditionally — and this is all they have done here, i. e., distributed it to him on condition that he turn it back to the trustees on the proposed terms. But the obvious fallacy of this approach is that when the smoke clears, the whole trust estate, every whit and tittle of it, is back with the trustees, and no part of it has been used for or distributed to Seward, conditionally or otherwise. Certainly, when the trust document speaks of the trustees using all or part of the principal for Seward, or distributing it to him, it contemplates using up, consuming, or expending such part or the whole, for such purpose. But here, after having purportedly been used for or distributed to Seward, the whole remains intact in the hands of the trustees, as before, for potential use for or distribution to him thereafter. It may accurately be said that the trust estate will have been manipulated for Seward’s peace of mind, but not that it has been “used for” him or “distributed to” him, in the common and reasonable signification of such terms when employed in a trust instrument in as clear and conventional a manner as here.

The fact noted in the opinion of the majority that Bruce and Jennie have no vested remainder in the trust, in that if a genuine distribution of principal were made to Seward they would automatically lose their contingent remainder interest therein pro tanto, is not germane to the issue which concerns me. This is the lack of power of the trustees to impair their interest, albeit contingent, absent a genuine distribution to Seward.

No comfort can be taken by the respondents from Capron v. Luchars, 110 N. J. Eq. 338 (Ch. 1932), affirmed per curiam 112 N. J. Eq. 373 (E. & A. 1933), upon which they rely. There the trust was not irrevocable, as here, (par. 11), but expressly subject to termination at any time in the discretion of the trustee. The arrangement challenged there was a voluntary recasting of the trust, after termination by the trustee, by what the court treated as a contract between the settlors-beneficiaries, having full capacity, and the trustee, the former voluntarily agreeing as part of the arrangement to turn over a portion of the trust res to the trustee. The settlors were held to their agreement by the court notwithstanding the intervening death of the trustee (three judges in the Court of Errors and Appeals dissenting). The distinctions between that situation and the present are too obvious and numerous to require extended exposition here.

It remains that the instant trustees will not, actually, in substance as distinguished from form, have distributed the trust estate to Seward or used it for him. They therefore have no power under the trust instrument to do what is here proposed.

       Even if Seward changes his mind 10 or 20 years from now and decides Bruce and Jennie should share, the terms of the proposed new trust will make that desire impossible of attainment (unless, of course, the trustees agree for the sake of Seward’s then peace of mind to another “wash” exchange of trusts as in the instant manner).

       The instant trust was not absolutely terminable at the mere will of the trustees, as in Capron. Termination here would merely follow as a legal incident of any distribution of principal, pro tanto. Absent distribution, there can be no termination.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. FRED WILLIAMS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 26, 1969
    Decided June 18, 1969.

      Before Judges Gauletn, Collestek and Labkecque.

      Mr. Robert S. Miller argued the cause for appellant (Mr. Stanley 0. Van Ness, Public Defender, attorney).

      Mr. David J. MonyeTc, Assistant Prosecutor, argued the cause for respondent (Mr. Edward J. Dolan, County Prosecutor, attorney).
   Per Curiam.

Defendant was found guilty of manslaughter following the trial of an indictment charging him with the murder of one Harold Neal. He appeals.

The primary ground urged for a reversal is that the trial judge erred in excluding testimony pertaining to the defendant’s state of mind at the time of the homicide.

The record indicates that immediately following the shooting defendant got into his car and drove a distance of 12 to 15 miles to the home of a friend, Peter Cassidy. The trip took approximately 20 minutes. Cassidy, called as a defense witness, testified that Williams was emotionally upset and incoherent when he arrived at Cassidy’s home. When the witness was questioned about statements made by the defendant the prosecutor objected and the court heard the testimony out of the presence of the jury. Cassidy testified that when he asked Williams to tell him what had happened the defendant said the shooting was accidental and occurred when he was trying to get rid of a gun which he had taken away from a friend.

Defendant argued that the testimony concerning statements he had made to Cassidy were admissible as spontaneous and contemporaneous statements under Evidence Buie 63 (4) (b) and to show his intent at the time of the homicide under Evidence Buie 63(12) (a). The court ruled that such testimony could not be received under Evidence Buie 63(4) (&) because the statements were not spontaneous, they had not been made in reasonable propinquity to the homicide, the defendant had an opportunity to deliberate and reflect during the 12-15 mile drive to Cassidy’s home, and that defendant’s self-serving declarations resulted from questions put to him by Cassidy. He further concluded that Evidence Buie 63(12) (a) was not applicable.

In determining whether a statement is admissible as an excited utterance or spontaneous declaration under Evidence Buie 63(4) (&) the court must decide the preliminary question of whether the defendant had any opportunity for deliberation, reflection, contrivance or misrepresentation before he made the statement or whether the utterance was spontaneous and made solely under the stress of nervous excitement. The factors which the court must consider are the element of time, the circumstances of the incident, the mental and physical condition of the declarant, and the nature of the utterance (whether against the interest of the declarant or not, or made in response to questions or involuntary). Lieberman v. Saley, 94 N. J. Super. 156, 161 (App. Div. 1967); McCormick on Evidence, § 272, pp. 579— 582.

In deciding whether a statement is admissible under Evidence Buie 63(12) (a) to show the declarant’s previous state of mind (i. e., defendant’s intent at the time of the homicide), the court is invested with a discretion to refuse to admit such evidence where because of the circumstances and the interval between the time of the declaration and the previous time referred to, it concludes that there is no reasonable basis for finding that a continuity of that state of mind exists. In re Spiegelglass’ Estate, 48 N. J. Super. 265, 272-273 (App. Div. 1958).

Here the trial judge made a finding that the defendant’s statements were not spontaneous and therefore they were not admissible under Evidence Buie 63(4) (6). Moreover, in the exercise of his discretion he refused to admit such statements under Evidence Buie 63(12) (a). We conclude that there was ample factual justification for his rulings.

Defendant also contends that the court erred in its charge to the jury and in denying requests to charge which he had submitted. We have reviewed the record and conclude that there is no merit to such contentions.

Affirmed.


author: Conford, S. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. VICTOR PACHECO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 27,1969
    Decided June 20, 1969.

      Before Judges Comoed, Kilkenny and Leonard.

      Mrs. Miriam N. Span, Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley 0. Van Ness, Public Defender, attorney).

      Mr. Rush ton H. Ridgvjay, Assistant County Prosecutor, argued the cause lor respondent {Mr. Joseph Tuso, Cumberland County Prosecutor, attorney).
   The opinion of the court was delivered by

Conford, S. J. A. D.

Defendant appeals from a conviction in July 1968 for first degree murder, with sentence of life imprisonment. The crime occurred in 1959, and a previous trial and conviction in 1960 was followed by a reversal and remand for trial errors. State v. Pacheco, 38 N. J. 120 (1962).

The State’s case at both trials was based on the theory of a felony-murder. At the first trial, an alleged co-participant in the crime, one Bobo Kelson, who had pleaded non vuli and was sentenced to life imprisonment, implicated defendant as having joined him in a plan to rob the victim, a farmer. That plan culminated in Nelson killing the victim when he resisted the robbery. Defendant testified at that trial, admitted going to the farm with Nelson, but only for the purpose of helping Nelson find work, and claimed an effort to disassociate himself from Nelson action’s in attacking and robbing the victim.

Subsequent to the first trial both Nelson and defendant became psychotic and were confined in hospitals for the criminally insane. Nelson’s testimony at the first trial was read to the jury at the second trial because of his incapacity to testify at that time. The State offered additional incriminatory testimony at that trial, as it had at the first. Defendant did not take the stand in his own defense at the second trial.

Defendant was administered electro-shock therapy in 1964, and it was asserted on his behalf at the outset of this trial that he had, as a result thereof, no memory whatever of the events of the day of the crime. However, a state psychiatrist (Dr. Brancale) who examined defendant the day of the commencement of the trial (and previously in 1963 and 1965) testified defendant told him he was in the state hospital the day of the crime. But he told a defense psychiatrist (Dr. Rubin) the same day that he was in Salem County jail the day of the crime and had not met Nelson until they were in jail together in 1960. (They were actually in jail together in 1959, prior to the instant crime.)

The principal ground of appeal is that defendant was incompetent to stand trial because of his present total failure of memory of the events of the critical day and of his consequent inability to prepare a defense with counsel — an asserted denial of due process.

The trial court on its own motion conducted a hearing on the issue at the outset of the trial. We need not discuss the expert testimony in detail. The opposing doctors agreed that, aside from the memory lapse, the defendant was mentally able to stand trial in the sense of orientation, awareness of the nature of the charge and capacity to cooperate with counsel. Dr. Eubin, for the defense, testified that as a result of the shock treatments, defendant was presently “incapable of relating the facts” which occurred the day of the murder. He was further of the opinion that the amnesia would not disappear in the near future. Questioned as to these matters, Dr. Brancale, for the State, testified that “extensive shock therapy does result in an amnesia sometimes prolonged and sometimes less so,” but that it was his opinion that defendant had “the capacity to recall the events of that period in 1959.” He opined that only events close in time to the therapy are apt to be affected and that it “would not blot out an important area of his life’s experience completely.”

The trial judge' concluded, on the basis of Dr. Eubin’s greater experience in the field of shock-treatment effect, that defendant “cannot recall the events of that date and is under that disability.” He nevertheless ruled that in view of the defendant’s competency in all other respects, the complete uncertainty as to when, if ever, he would regain recall of the events, the alternative of releasing the defendant from custody, the fact that many criminal defendants for one reason or another have degrees of incapacity to remember the occurrences surrounding the charges against them, and the State’s obligation affirmatively to prove the defendant’s complicity, the interests of “fair play to the State,” balanced against the “equities” of the defendant, required the trial to proceed.

Adding the factor of the availability to defense counsel of the transcript of defendant’s testimony at the first trial, and defendant’s right to offer it in his defense in view of his present amnesia, McCormick, Evidence (1954), p. 494; Evidence Rule 63(3) (a) (ii), we conclude that the trial judge’s decision on capacity to stand trial was correct.

Hew Jersey courts have not heretofore been faced with the specific question of loss of memory of the critical events as of the time of trial as affecting legal competency to stand trial. The test, in terms of mental incapacity generally, is whether the defendant’s “mental condition is such that he is nnable to comprehend his position, to consult intelligently with counsel and plan his defense.” State v. Lucas, 30 N. J. 37, 72 (1959). The last-mentioned factor is what is peculiarly implicated here. In a leading and thoughtful study of the problem, Note: “Amnesia: A Case Study in the Limits of Particular Justice,” 71 Yale L. J. 109 (1961), it was found that “there is no record of any court holding a defendant incompetent to stand trial solely on the basis of amnesia.” The author, while sensitive to the need of procedural devices in a criminal trial of an amnesic designed to lessen the incidence of unfairness arising from the condition {id., at 130-13 5 ), nevertheless concludes:

“Once it is recognized that amnesia is present to some degree in everyone and that its effects on the ability of an individual to assist in his own defense are often hard to distinguish fx-om the disadvantages of many defendants to whom important facts are unavailable for reasons other than amnesia, it should be apparent that it is neither necessary nor appropriate to consider memory failure as a sufficient condition for the interruption of the adjudicatory process to minimize the danger of a miscarrage of justice. The special demands of extraordixxary cases should, where possible, be met without losing sight of the fact that a generaly effective system of criminal adjudication has been developed around rules of evidence and procedure calculated to insure a workable balance of the interests of the accused, the prosecution, and the court. Pending a wholesale revision of the criminal process, exceptional px-oeedures should jealously be reserved for exceptioxxal cases, lest more fully tested techniqxxes be prematurely displaced.” (at p. 136)

In Regina v. Podola, [1959] 3 All E. R. 418, [1959] 3 W. L. R. 718, the Court of Criminal Appeal held that hysterical amnesia of the critical events in an otherwise sane defendant did not render him “insane” for purposes of the statutory proscription of trial of such persons. It quoted with approval a prior decision indicating the opinion that a contrary view “would come near to paralysing the administration of criminal justice.” 3 W. L. R., at p. 734.

Perhaps reflective of the underlying philosophy of most of the relatively few American cases on the point is the expression of the Pennsylvania Supreme Court in Commonwealth ex rel. Cummins v. Price, 421 Pa. 396, 218 A. 2d 758 (1966), certiorari denied sub nom. Cummins v. Price, 385 U. S. 869, 87 S. Ct. 136, 17 L. Ed. 2d 96 (1966), in relation to a defendant under indictment for murder who alleged that he had sustained a complete and permanent memory loss (apparently from a self-inflicted gunshot wound in the head at about the time of the shooting of the victim) :

“Nevertheless, we are constrained to hold that defendant is not entitled at this time (1) to a discharge from the indictment for murder, or (2) to a stay of proceedings under the aforesaid common law test or under the Mental Health Act. This defendant (we repeat) is able to comprehend his position as one accused of murder, is fully capable of understanding the gravity of the criminal proceedings against him, and is as able to cooperate with his counsel in making a rational defense as is any defendant who alleges that at the time of the crime he was insane or very intoxicated or completely drugged, or a defendant whose mind allegedly went blank or who blacked out or who panicked and contends or testifies that he does not remember anything.” (218 A. 2d, at p. 763; emphasis by tlie court).

An interesting set of judicial reactions to the same problem is found in the recent case of Wilson v. United States, 129 U. S. App. D. C. 107, 391 F. 2d 460 (1968), where it appeared that a defendant tried and convicted for assault with a pistol and robbery suffered from permanent retrograde amnesia resulting from an automobile accident shortly after the alleged crimes. Two of the three appellate judges voted (one rather reluctantly, expressing “personal” satisfaction with the fairness of the procedure resulting in the conviction) for a post-trial hearing and determination of whether “under applicable principles of due process” the conviction should stand, in the light of special findings to be made by the trial judge on the following factors: (1) effect of the amnesia on consultation with counsel; (2) effect of the amnesia on defendant’s ability to testify; (3) extent of possible reconstruction of the evidence “extrinsically” in view of the amnesia; (4) extent of assistance by the Government toward such reconstruction; (5) strength of prosecution case, particularly in respect of possibility that defendant could establish a defense but for the amnesia; (6) any other facts bearing upon the fairness of the trial. The dissenting judge felt that the defendant’s loss of memory was an insuperable obstacle to a trial consonant with due process.

It is our considered view that, whatever might be thought as to a case being tried for the first time, where it was in reasonable prospect that the defendant might relatively soon regain his memory, or where the prosecution case was weak and a fair possibility was presented that the defendant, if not deprived of memory, could present a colorable defense, the clearly determinative circumstance here is the availability to defendant and his counsel of the defendant’s version of the events as of the time of the first trial. Pertinent are both the utility of the transcript for preparation for trial and as substantive evidentiary material offerable on defense. That the defense did not here attempt to use it in the latter regard is of no present avail. Also significant here is the obvious strength of the prosecution case.

Balancing the interests of the State in defendant’s prosecution and defendant’s interests in a fair trial, within the limits of reasonable practicality, and under all the attendant circumstances, we find the disposition of the matter by the trial judge to be correct.

The second ground of appeal advanced is the denial of a motion for mistrial during the selection of the jury, after only two jurors had been drawn and sequestered, based upon newspaper stories concerning the impending retrial wherein it was stated that defendant had been previously ■convicted and sentenced to life imprisonment but had won a new trial on appeal. The remainder of the jury panel had read the news, accounts.

In denying the motion, the trial judge was of the opinion that the jurors would probably know of the earlier conviction anyway since it had been a matter of notoriety in the community at the time of the first trial; moreover, that the situation was distinguishable from publicity concerning convictions for other crimes. We cannot find a mistaken exercise of discretion in the denial of the motion, within the guidelines of State v. Van Duyne, 43 N. J. 369, 386 (1964), certiorari denied sub nom. Van Duyne v. New Jersey, 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed.2d 279 (1965). If any of the jurors did not know of the prior history of the case before reading the news articles, that knowledge very probably came to them with the reading of Nelson’s testimony from the first trial. Nor do we find knowledge by the jury of the earlier conviction and the reversal on appeal to have been inherently prejudicial.

Defendant’s final argument is to the effect that a comment by the prosecutor in summation was an impermissible comment on the accused’s failure to testify on his own behalf. The prosecutor said:

“This was an area Mr. Pacheco knew well. This was a house only Mr. Pacheco knew, and he said ‘That’s the house. The man is alone. That’s where you are going to get the money,’ and then they went into that house and unquestionably ‘Bobo’ Nelson is the one that used the knife, that struck the death blow, but this Defendant seated here at the counsel table was nowhere else that day, and there is no evidence to indicate that he was somewhere else. Mr. Nelson and Pacheco were both in the house of Mr. Oliveria that day for the planned purpose of Mr. Pacheco to commit a robbery.” (Emphasis added)

We note at tho outset that no objection was offered to the comment until the end of the summation. This is of dubious propriety. State v. Gosser, 50 N. J. 438, 452 (1967). In any event, the contention lacks merit.

The defense had adduced the testimony of a psychiatrist, Dr. Del Castilo, who treated Nelson at the State Hospital in 1968. He testified that Nelson often told him in the course of such treatment that defendant was not “involved in the crime” — that he was sorry he had involved defendant — and that everything was his (Nelson’s) fault. In view of this testimony, the prosecutor’s statement, objected to by defendant as necessarily an allusion to the defendant’s personal failure to testify, is more reasonably understandable as an oblique observation as to the failure of the Del Castilo testimony to reflect any admission by Nelson that defendant was not present at the scene of the crime—the point then under stress by the prosecutor being such presence — as opposed to a mere generalization by Nelson that defendant was not involved in the killing itself. So viewed, the prosecutor’s comment does not transgress the bounds of the right of the State to make “fair reference to legitimate inferences from non-production of evidence” without falling afoul the non-comment rule of Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1065). And see State v. Gosser, supra (50 N. J., at p. 453).

Judgment affirmed.

       Such as admission of his exculpatory testimony at a former trial (71 Yale L. J., at 134).


author: CoklFORD, S. J. A. D.

text:
    EVELYN WILSON, COMPLAINANT-RESPONDENT, v. SIXTY-SIX MELMORE GARDENS, A NEW JERSEY CORPORATION, BERNARD TULCHINSKY AND ANDREE BUILA, RESPONDENTS-APPELLANTS, v. NEW JERSEY DIVISION ON CIVIL RIGHTS, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 28, 1969
    Decided June 20, 1969.

      Before Judges Confoed, Kilken'sty and Leonard.

      Mr. Jack Borrus argued the cause for appellants (Messrs. Borrus, Goldin & Foley, attorneys).

      Mr. Stephen Skillman, Deputy Attorney General, argued the cause for respondent Division on Civil Eights {Mr. Arthur J. Sills, Attorney General of Now Jersey, attorney; Mr. John J. P. Ryan, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

CoklFORD, S. J. A. D.

Appellants appeal from the findings, determinations and order of the Director of the Division on Civil Rights (Division.), made on recommendation of a hearing examiner after a hearing of a complaint of unlawful discrimination by them in the negotiations for rental of a $95 per month apartment to Evelyn Wilson and Elgin Mason (her flaneé), applicants therefor.

The negotiations had not reached the stage of outright refusal of the apartment when the complaint was filed. The complaint was based upon material differences in treatment by appellants of Wilson and Mason, Negroes, who applied for the apartment in response to an advertisement, in comparison with that accorded a Mrs. Stone, a “white tester,” who pretended to apply for the same apartment the next day. Without here detailing all the proofs, we think the evidence was such as to permit the fact-finder to determine that appellants' agent treated Wilson and Mason in a manner designed to discourage their interest in the apartment while encouraging Stone to take it. For example, Wilson and Mason were required to fill out an application form in full and told that it would take ten days to two weeks for a credit check to clear; also, that they would be notified only if they were found acceptable, and they could “probably find something better somewhere else.”

On the other hand, the agent accepted from Mrs. Stone only a partially filled-out application form, volunteered to her the favorable features of the apartment and the parking facilities, said she could have the apartment within four days, and made no reference concerning the time it would take to process the application. Proof of treatment of a Negro tester-applicant by the agent the same day tended to corroborate the charge of color-bias.

We find substantial credible evidence on the whole record to support the finding of the Division that the apartment owner by its agent “intentionally discouraged” Wilson and Elgin from renting the apartment, impliedly because of their color. In so doing we do not necessarily concur in all the subordinate findings or inferences of the examiner in relation to the conclusion that use of a credit check by appellants was a device designed to avoid rentals to Negroes, but we do find the conclusion itself had sufficient credible support in the proofs, taken in entirety, to survive judicial review. Atkinson v. Parsekian, 31 N. J. 143, 149 (1962).

Appellants contend that discouragement of a member of an unwanted race is not discrimination in rental, within the statute, where there has been no refusal to rent as of the time of the filing of the complaint. We disagree. N. J. S. A. 10:5—IS (<7) (1) is not confined to refusals to sell or lease real property. It also makes it unlawful “otherwise to deny to or withhold from” (emphasis added) any person real property on a discriminatory basis related to race. Moreover, the other provisions of the law should be read with N. J. S. A. 10:5-4 which provides, pertinently:

“All persons shall have the opportunity to obtain * * * publiely assisted housing accommodation and other real property, without discrimination * * * subject only to conditions and limitations applicable alike to all persons” (Emphasis added)

Head broadly, the quoted sections of the Law Against Discrimination make it manifest that the legislation is aimed at subtle and covert activities designed to defeat its policy as well as at outright and blatant violations. It may be assumed that the Legislature was cognizant that effective discrimination in the sale or rental of realty can be and is commonly achieved by discouragement as well as by flat refusal. The unwanted get the intended message by masked indirection as surely as by a “Whites Only” sign, and only a foolish landlord would today use the latter technique. The deliberate use of tactics of discouragement, whether by delay, credit investigations, withholding of material information, or by more subtly suggesting the applicant is unwelcome constitutes a violation of the statute if the practice is applied selectively to a particular unwanted race, and for the purpose of preventing a consummation of a sale or rental transaction. See Jackson v. Concord Company, 54 N. J. 113, 119 (1969); cf. Clover Hill Swimming Club v. Goldsboro, 47 N. J. 25, 36 (1966); Holland v. Edwards, 307 N. Y. 38, 119 N. E. 2d 581, 584, 44 A. L. R. 2d 1130 (Ct. App. 1954); Browning v. Slenderella Systems of Seattle, 54 Wash. 2d 440, 341 P. 2d 859, 862 (Sup. Ct. 1959).

Appellants’ complaint as to the precipitous action of the Division in, and the lack of investigation prior to, making the finding of probable cause, is irrelevant to the merits of the adjudication on full hearing.

Judgment affirmed.

       However,- the president of the defendant corporation testified that he would not rent to Wilson and Elgin because the credit report of the latter was unsatisfactory. (He had been refused a loan.) There was no fault with Wilson’s rating. Their combined income was over $10,000 per annum.