State v. Funicello ( 1972 )

Pee Ctjeiam.

On April 8, 1968 the United States Supreme Court held the federal kidnapping statute unconstitutional insofar as it authorized the death penalty. United States v. Jackson, 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968). The statute was construed to mean that the death penalty could be imposed only by a jury verdict, so that if a defendant waived his Sixth Amendment right to trial by jury, he would suffer no penalty beyond life imprisonment. Thus construed, the statute was held to violate the right to trial by jury. The Court also found the statute “needlessly encouraged” a plea of guilty, in violation of the Pifth Amendment privilege against self-incrimination. On June 17, 1968 the United States Supreme Court, upon the Government’s concession that the federal bank robbery act was indistinguishable from the kidnapping statute, voided a death sentence imposed under the robbery act. Pope v. United States, 392 U. S. 651, 88 S. Ct. 2145, 20 L. Ed. 2d 1317 (1968).

When Jackson was handed down, we immediately invited the question of its impact upon our homicide statute under which the penalty for first-degree murder is death unless the jury recommends life imprisonment, N. J. S. A. 2A:113-4, and under which, if a non vult plea to the indictment is accepted by the court, the penalty is life imprisonment or the same as that provided in the case of murder in the second degree, N. J. S. A. 2A:113-3. Our statute did not involve a Sixth Amendment issue (a defendant could not waive a jury and be tried before a judge alone), but the non vult plea raised the question whether J aclcson’s Fifth Amendment thesis embraced our statute.

The issue was presented in post-conviction proceedings as to Forcella and Funicello, both under death sentences theretofore affirmed by us. We held (1) Jackson did not apply, for the reasons we stated at length, and that if we should be in error in that regard, then (2) the non vult plea rather than the death penalty would fall, and this because of the history of our statutes. State v. Forcella, 52 N. J. 263 (1968). Two justices dissented.

We decided Forcella on July 3, 1968, a few months after Jackson. Both Forcella and Funicello petitioned the United States Supreme Court for certiorari. Forcella died later of natural causes. As to Funicello, the United States Supreme Court, on June 28, 1971, three years after the filing of our opinion, made this memorandum disposition (403 U. S. 948, 91 S. Ct. 2278, 29 L. Ed. 2d 859) :

On petition for writ of certiorari to the Supreme Court of New Jersey. Motion for leave to proceed in forma pauperis granted. Petition for writ of certiorari granted. Judgment, insofar as it imposes the death sentence, reversed and case remanded to the Supreme Court of New Jersey for further proceedings. Witherspoon v. Illinois, 391 U. S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) ; Boulden v. Holman, 394 U. S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433 (1969) ; Maxwell v. Bishop, 398 U. S. 262, 90 S. Ct. 1578, 26 L. Ed. 2d 221 (1970) ; and United States v. Jackson, 390 U. S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968). Mr. Justice Black dissents.

On July 23, 1971 the Attorney General filed with the United States Supreme Court a petition for rehearing and a motion for clarification, both of which were denied without comment. 404 U. S. 876, 92 S. Ct. 31, 30 L. Ed. 2d 125 (1971). We thereupon set down Funicello for further argument, and other cases involving the same issue were heard with it.

The Attorney General and the prosecutors took the position that by the Funicello memorandum the United States Supreme Court held (1) our statute ran afoul of Jackson, and (2) it was the death penalty which fell. The memorandum decision cited Jaclcson. There was some ambiguity by reason of the citation of Witherspoon, Boulden and Maxwell, since they deal with the qualification of jurors in a capital case, an issue which in fact was not involved in Funicello, 52 N. J. at 292, and which would in any event fall away if there were no death penalty. The summary nature of the disposition after a three-year interval was also perplexing. Nonetheless Jaclcson was cited, and any doubt as to the intention of the United States Supreme Court seems dissipated by the fact that the Court on the same day reversed death sentences in a number of North Carolina cases and in a South Carolina case, citing only Jackson and Pope. Atkinson v. North Carolina, 403 U. S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); Hill v. North Carolina, 403 U. S. 948, 91 S. Ct. 2287, 29 L. Ed. 2d 860 (1971); Roseboro v. North Carolina, 402 U. S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971); Williams v. North Carolina, 403 U. S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); Sanders v. North Carolina, 403 U. S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); Atkinson v. North Carolina, 403 U. S. 948, 91 S. Ct. 2292, 29 L. Ed. 2d 861 (1971); Thomas v. Leeke, 403 U. S. 948, 91 S. Ct. 2291, 29 L. Ed. 2d 860 (1971).

We therefore accept the conclusion that the United States Supreme Court has declared the death penalty to be unconstitutional under our statute. The constitutional infirmity being excised from the statute by invalidating the death penalty, the question is whether the remainder of the statutory scheme will survive. We see no reason to doubt that the Legislature would want the remainder of the statute to stand if the death penalty failed, and we see no constitutional difficulty in taking that course. The consequences are the following.

The death penalty in Funicello is set aside pursuant to the mandate of the United States Supreme Court and the defendant is hereby sentenced to life imprisonment, nunc pro tunc, as of the date the death sentence was initially imposed, the defendant to be entitled to the same credits as if initially sentenced to life imprisonment.¹ A like order will be entered in all the other causes captioned above in which the death sentence was imposed. A like order will be made on motion before us or in' the trial court with respect to all other defendants now under a sentence of death. No such order shall delay or affect any appeal with respect to guilt.

A life sentence heretofore imposed upon a jury’s recommendation or upon the State’s waiver of the death penalty is unaffected. See Robinson v. United States, 394 F. 2d 823 (6 Cir. 1968), cert. denied, 393 U. S. 1057, 89 S. Ct. 698, 21 L. Ed. 2d 698 (1969); Parker v. United States, 400 F. 2d 248 (9 Cir. 1968), cert. denied, 393 U. S. 1097, 89 S. Ct. 892, 21 L. Ed. 2d 789 (1969).

Neither a non vult plea nor a judgment heretofore entered upon it will be impaired by our’action today. As to any claim of involuntariness in the plea, the governing principles are set forth in Brady v. United States, 397 U. S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); Parker v. North Carolina, 397 U. S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970); North Carolina v. Alford, 400 U. S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

All pending and future indictments for murder shall be prosecuted on the basis that upon a jury’s verdict of murder in the first degree, the penalty shall be life imprisonment. Pleas to an indictment for murder shall continue to be governed by N. J. S. A. 2A:113-3.

The matters captioned above involving interlocutory orders relating to the death penalty are remanded to the trial courts for further proceedings in accordance with this opinion.

Joining in Per Curiam Opinion: Chief Justice Weintraub and Justices Proctor, Schettino and Mountain—4.

Concurring in result: Justices Jacobs and Hall—2.

Dissenting: Justice Erancis—1.

1 We have heretofore directed the imposition of life imprisonment where there was error affecting the death penalty and where the State waived a right of retrial with respect to it. See State v. Holland, 59 N. J. 451, 463 (1971). Since there cannot be a retrial with respect to the death penalty, the State’s consent to that course is unnecessary.