Judges： Wachenfeld, Weintraub
Filed Date： 4/1/1957
Status： Precedential
Modified Date： 10/19/2024
The opinion of the court was delivered by
The legality of a conviction for perjury is challenged on this appeal by Dr. J. Minor Sullivan, III, defendant-appellant, hereinafter referred to as the defendant.
In 1948 William Horner and his reputed wife owned and operated a second-hand furniture store in Trenton. On the morning of January 27 he was brutally beaten to death with a blunt instrument and she was seriously injured by a vicious assault.
It is wholly unnecessary to relate in detail the subsequent factual developments except to say that by reason of diligent police investigation six suspects were soon apprehended and taken into custody.
Dr. Sullivan is a general medical practitioner residing in Trenton. He was asked by the Trenton police to witness the signing of confessions by five of the six men charged with murder. After his arrival at police headquarters defendant generally interrogated each suspect in what has since become known in legal annals as the “Trenton Six” case. His
A Dr. George Corio was also summoned to act as an impartial witness. Both doctors gave a brief but fairly thorough physical examination to each of the accused. None of the murder defendants indicated he had been maltreated in any fashion and the doctors found no evidence of physical abuse.
Thereafter, Sullivan was queried by the police as to his findings and conclusions, and the questions and answers were recorded in a notarized statement signed by him.
In June of 1948 the murder indictment was brought to trial. It was a long, complicated and difficult case lasting 44 days, and during the course of it Sullivan was called upon to testify on two occasions. He first appeared at a preliminary hearing before the trial judge on the admissibility of the confessions, and later he again testified before the jury as the trial proceeded. All five confessions whose signing Sullivan had witnessed were admitted into evidence, and the six murder defendants were convicted by a jury and subsequently sentenced to death.
The judgment so Tendered was reversed by this court, State v. Cooper, 2 N. J. 540 (1949), on several grounds, including the failure of the jury verdict of guilty to designate the degree of murder in accordance with statutory requirements, and we returned the case for a new trial. To guide the lower court at the second trial, we discussed the admissibility of the aforementioned confessions and cautioned that “[i]n the enforcement of the constitutional guaranty of due process, the inquiry is whether there has been observance of That fundamental fairness essential to the very concept of justice. * * *’ ” and that “a confession induced by physical or moral compulsion, whatever its nature, has no evidential efficacy.” Contrary to Sullivan’s present contentions, we did not determine that in fact the subject confessions had been obtained without due process.
As a result of this reversal, a second murder trial ensued. Sullivan again testified at the preliminary inquiry as to
Although Sullivan’s testimony grew increasingly unfavorable to the State, the prosecution made no attempt to discard him as a witness until well along in the cross-examination before the jury, when it attempted to plead surprise and thereafter endeavored to neutralize his testimony.
The second trial resulted in the acquittal of four defendants; the remaining two, Collis English and Ralph Cooper, were found guilty of murder in the first degree with a recommendation by the jury of life imprisonment.
We again reversed for numerous trial errors, recited in the opinion in State v. Cooper, 10 N. J. 532 (1952). The later developments and ultimate disposition of the “Trenton Six” case are not material and have no bearing upon the issues presented by this appeal.
After the second murder trial, two indictments were returned against the defendant. They are essentially the same except that one cliarges perjury, the other the crime of false swearing. The State’s theory is that after the first trial Sullivan directed himself toward securing freedom for the murder defendants and to this end willfully falsified his testimony at the second trial in attempting to establish that the defendants were incompetent at the time they had executed their respective confessions. It is said the testimony of Dr. Sullivan at the first trial was true but that he perjured himself, in the manner indicated in the indictments, at the second trial.
Each indictment contains eight counts reciting verbatim portions of the defendant’s testimony at the second murder trial of Ralph Cooper, Collis English, McKinley Forrest, John MacKenzie, James H. Thorpe and Horace Wilson regarding his examinations and observations of these defendants and his conclusions as to their mental and physical condition and the cause thereof.
The perjury indictment alleges that Sullivan “then and there did commit willful and corrupt perjury in manner and form aforesaid, contrary to the provisions of R. S.
By court order, the indictments were consolidated and tried together. R. R. 3 :5-6.
The perjury indictment was attacked by the defendant, who alleged it was predicated upon expressions of professional opinion and belief and failed to contain allegations necessary for charging a crime and was invalid for this and other reasons. The indictment was sustained in 25 N. J. Super. 484 (App. Div. 1953), certification denied 13 N. J. 289 (1953), certiorari denied 347 U. S. 903, 74 S. Ct. 428, 98 L. Ed. 1063 (1954).
The false swearing indictment was likewise subjected to appellate treatment, 33 N. J. Super. 138 (App. Div. 1954).
To prove the charges made in the indictments, the State introduced transcripts of defendant’s testimony at the first and second murder trials. It put upon the stand Dr. Corio and various police officials who were present at the time Sullivan conducted his physical examinations, and produced the question-and-answer statement signed by the defendant in 1948.
The defense was a complete denial and the defendant testified at length. He was supported by character witnesses who testified as to his good repute for honesty and veracity.
By agreement, the case was tried without a jury, and at the conclusion of all of the testimony Judge Morris, who presided, made general and special findings convicting the defendant on seven of the eight counts in the perjury indictment.
The record indicates the State moved for sentence only on the perjury indictment and that no further action was taken upon the false swearing indictment. The latter was apparently disposed of by the trial judge in his remark that the findings made on the perjury indictment were also dispositive of the false swearing indictment. In any event, the indictment charging false swearing is not at issue before us.
The defendant was sentenced to two years on probation and fined $1,500.
Perjury was defined by early common law “* * * as the willful assertion as to a matter of fact, opinion, belief, or knowledge made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether in open court, in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding.” 41 Am. Jur., Perjury, § 2, p. 4.
The offense is now controlled by statute in most jurisdictions, but although these vary to some degree in language, basically there is little difference from the common law conception. In general, the state legislatures have defined perjury as willful and corrupt false swearing or affirming, under an oath lawfully administered in the course of a judicial or quasi-judicial proceeding, to some matter material to the issue. State v. Sullivan, 25 N. J. Super. 484 (App. Div. 1953), citing 41 Am. Jur., supra, § 2, p. 4. See N. J. S. 2A :131-1 et seq., formerly R. S. 2 :157—1 et seq.
As was determined in State v. Sullivan, supra, there is a distinction between an honest but erroneous statement of opinion and a false declaration of fact. The latter is held to be a matter of perjury. 41 Am. Jur., supra, § 6, p. 6; 70 C. J. S., Perjury, § 5, p. 462.
Similarly, however, where the existence or nonexistence of an opinion or belief is in itself a material matter of fact, a false statement as to such may constitute the offense. 41 Am. Jur., supra, § 6, p. 6; 70 C. J. S., supra, § 5, p. 462.
The defendant’s position here is that it is practically impossible to convict a doctor of perjury. Apart from
Additionally, it is said that if contradictions exist between defendant’s statements at the two murder trials, the State failed in its obligation to demonstrate the second testimony was false rather than the first.
These contentions make it important to recognize that much of Sullivan’s testimony dealt with findings resulting from his examinations of the accused prisoners. To this extent, he was describing physical manifestations, exclusive of- their supposed cause or psychic effect. The existence of the symptoms to which he testified is fundamentally a matter of fact, readily subject to independent verification or disproof. Most of the alleged findings were the direct product of observation and not the result of scientific tests or research. The police officers in attendance as well as Dr. Corio are, therefore, qualified to refute the truthfulness of the defendant’s testimony in this respect because they had the same opportunities for observation. See Priest v. Poleshuck, 15 N. J. 557, 562 (1954); Koccis v. State, 56 N. J. L. 44 (Sup. Ct. 1893); 33 C. J. S., Evidence, § 467, p. 107.
Admittedly, Dr. Sullivan also gave evidence in the form of medical opinions based on his physical findings. We now refer to his own diagnosis of the individual prisoners as totally divorced from his answers to purely hypothetical questions. Vide, Beam v. Kent, 3 N. J. 310, 315 (1949). It is argued these opinions can be proved false only by direct evidence in the form of an admission, but we cannot agree. The evidence presented was more than sufficient to satisfy the rule as to quantum of proof which requires at least the testimony of one witness supported by strong corroborating
To hold that a “confession” by a doctor is an indispensible prerequisite to proving he willfully and corruptly gave false opinion testimony would place an intolerable and impossible burden on the State in its prosecution and would subject the entire judicial process, both civil and criminal, to the spectre of fraudulent testimony freely given with complete immunity and without fear of subsequent prosecution. We hold high regard for the competence and integrity of the medical profession, but we must reluctantly recognize that, like any other profession, it occasionally harbors members whose ethics are not compatible with the lofty and established standards of the group.
The present indictment was sustained in the Appellate Division, where it was said:
“The defendant’s statements as to a nervous, drugged, amnestic or suggestive state of mind in the several murder suspects, may constitute perjurious testimony for the reason that it is alleged that he well knew the absence of their factual existence when he swore to them in his testimony and that he did not hold a firm belief in their existence under the circumstances of the case. Under either or both circumstances, an indictment may be warranted.” (Emphasis supplied.) State v. Sullivan, 25 N. J. Super. 484, 492 (1953).
The strength of the law will continue only as long as it remains intimately acquainted with reality. It is not an abstract science. Considered in vacuo, the defendant’s opinions and beliefs might possibly be unimpeachable, but we are here concerned with actualities as reflected in “the circumstances of the case.” The record convinces us that these selfsame circumstances as intertwined in all of the evidence clearly and logically point to the defendant’s guilt in the respects hereinafter delineated.
On his subsequent appearance three years later, his answers were radically different. Then, in effect, he stated all of the murder defendants, for one reason or another, were totally incapable of understanding the serious consequences of their confessional act, and that their physical and mental conditions were such as to negative the voluntariness of their statements.
Defendant asserts a doctor is entitled to change his professional views, and we cannot quarrel with this academic observation. We, however, are concerned with the actualities of judicial proceedings, and unless such change is upon valid grounds and for good reason, there is a justifiable inference that its motivation is corrupt. When witnesses for the State directly controvert the existence of the facts upon which the new opinions are allegedly predicated, this inference may, under the circumstances, ripen into a reflection of guilt sufficient to be considered by a jury or a judge.
True, Sullivan’s interrogation at the second trial was far more vigorous and searching with regard to the mental state of the respective murder defendants than at the first trial. This may possibly, as the defendant contends, have been induced by our own opinion, at 2 N. J. 540, where the effect of moral compulsion as a factor invalidating confessions under the due process clause was discussed.
But there was some limited cross-examination in this respect at the first trial, and on the second murder trial Sullivan was advised on several occasions of his right to refuse to answer questions relating to psychology if he deemed himself unqualified. The defendant took none of the shelter offered by the court and during the perjury trial consistently
In the defendant’s presentation the different counts of the indictment are separately reviewed, and for the sake of clarity we shall do likewise in our disposition here.
Ralph Cooper
The first count of the indictment charges that Sullivan perjured himself by testifying as follows:
“Q. And I ask you specifically was his condition such, that you, a trained medical observer, you felt from your experience that he was under the influence of drugs at that time? A. Yes, he appeared to be so.
Q. Doctor, as a result of having your previous testimony read to you for the purpose of refreshing your recollection, and directing your attention to the condition of Ralph Cooper as a result oí your examination of February 10th, or the early morning hours of the 11th, could you now state as to whether his condition was not caused by drugs? A. From the examination and observation of drowsiness and laziness as stated in the previous testimony, and redness of the eyes which indicated to me, suggested to me to ask the man if he had been smoking marijuanas, I say it could have been — it was caused by marijuanas.”
This testimony considered in the context of the whole record does not satisfy ns beyond a reasonable donbt that Sullivan committed perjury. With respect to the symptoms set forth, defendant consistently testified throughout both murder trials that Cooper was drowsy and lazy and showed congestion and inflammation of the eyes. There was no substantial deviation from his initial testimony at the first trial.
It is evident that Sullivan honestly thought there was at least a strong possibility Cooper had been smoking marijuana. During his examination of the suspects at police headquarters, Sullivan asked Cooper whether he had recently used “reefers.” On cross-examination at the first trial, Sullivan stated: “Well, he looked to me like he had been smoking reefers.” In response to the question, “Cooper you saw in such a
Defendant’s testimony at the second trial was compatible and consistent with his utterances at the first trial. There is no material conflict, and we find no evidence in the record sufficient to support a conviction on this count.
McKinley Eorrest
Giving defendant the benefit of all favorable inferences and a microscopic scrutiny of the record, we cannot sustain his conviction upon Counts 3, 7 and 8 of the indictment. These set forth portions of defendant’s testimony at the second trial relating to the physical and mental condition of McKinley Eorrest.
In his written statement prepared in 1948, Dr. Sullivan said Eorrest “was essentially negative other than he appeared slightly excited or nervous.” During the first murder trial, defendant upgraded this appraisal to “moderately excited.” “Moderate” was described as a stage of excitement between “slight” and “maniacal.” It was asserted this middle stage of emotional disturbance manifested itself in a tremor of the hands and Eorrest’s difficulty in removing his clothes, which necessitated assistance.
At the second trial, Dr. Sullivan testified that at the time of his physical examination Eorrest had been in a stage of hysteria, “was so afraid he couldn’t tell just what was going on,” and that “it was impossible” for him to remove his clothes. These matters were stated as conclusions.
Although this testimony created an impression of mental disability which was absent at the first trial, in light of the entire record we do not find the evidence warrants a conclusion that the State adequately demonstrated the change was animated by a corrupt motive.
It may well be said a shift in emphasis rather than substance took place. Perhaps this is explainable, at least in part, by the fact that at the second trial it was disclosed to Dr. Sullivan that • shortly before his physical examination of
Detective Henry W. Miller, called for the State at the perjury trial, confirmed the symptom of trembling and stated Forrest stuttered and had to be assisted in removing a sweater. Dr. Corio also stated Forrest was excited, although he denied the prisoner needed help in undressing.
In light of these developments, we cannot say Sullivan’s testimony with relation to Forrest diverged so substantially from the facts and his previous statements as to warrant a conclusive imputation of calculated falsehood.
However, the same meticulous perusal of the record and concern for defendant’s rights which induced us to reverse the conviction on Counts 1, 3, 7 and 8 of the perjury indictment firmly convince us beyond a moral certainty of the guilt of Sullivan with respect to Counts 2, 4 and 6. Count 5 was disposed of by the trial judge’s acquittal.
Collis English
The second and sixth counts of the indictment charge Sullivan perjured himself at the second trial in testifying concerning the physical condition and mental state of Collis English at the time he made his confession. In substance, these counts allege that Sullivan lied when he declared English to be a “little mumbly,” a “little confused,” “highly nervous” and in a psychoneurotic condition attributable to mental pressure.
Both examining doctors found that English had a serious heart murmur. At the first trial, this was the only symptom to which Dr. Sullivan testified. On cross-examination, he stated English “talked freely” and that he could recall only one prisoner being nervous, McKinley Forrest.
On preliminary examination at the second murder trial, Sullivan’s initial answers were totally consistent with his
When the jury was called in, Sullivan suddenly underwent a complete transformation. In place of being a witness for the State, he was now a potent ally of the defense. English, according to this testimony, was a “psychoneurotic” whose condition had been occasioned by mental stress, leaving only the inference that questionable or unlawful police methods were the causative factor. To eliminate any doubt as to the deplorable mental condition of English, Sullivan testified he was extremely subject to suggestion, not reliable, and “under mental pressure” would be deprived of his free will. Erom one who “talked freely” and had no symptoms other than a “cardiac deficiency * * * well compensated,” English was now, according to Sullivan’s testimony, “confused,” not very reliable, and “highly suggestible” as “the result of pressure” and was incompetent to execute a confession.
Additionally, Sullivan’s notarized statement to the police made no reference to any of the symptoms which on the second trial he suddenly claimed to have discovered. His conclusions at the second trial were a far cry from his original findings of “essentially negative.”
The detectives who appeared for the State against Dr. Sullivan and who had enjoyed frequent opportunities to observe English testified he was completely oriented, responsive and calm. They, along with Dr. Corio, denied that English mumbled or appeared confused and “highly nervous.” Dr. Corio refuted the existence of a “psychoneurosis.”
In our opinion, it was fully established that Dr. Sullivan, as charged in these counts, gave perjured testimony and that the totality of the circumstances proves beyond a moral certainty the evidence he gave was false, corrupt and deliberately contrived to mislead the jury.
John Mackenzie
Count 4 of the indictment contains Sullivan’s allegedly perjurious testimony respecting his findings from the physical examination of MacKenzie.
In essence, it is charged that defendant falsely testified MacKenzie was nervous and moderately excited, “that he appeared to be in a controlled state, as if having had a drug,” and that “I don’t know of any other situation that might put a person in a controlled state other than the hypnosis.” Read as a whole, defendant’s assertions spawn the idea that MacKenzie was deprived of his free will by the administration of drugs.
We can find nothing in the record to warrant this testimony, and we must conclude that Sullivan lied as to his opinions.
In the course of the perjury trial, Dr. Corio denied the existence of any physical or behavioral indications that MacKenzie was excited and in a controlled state attributable to the taking of drugs.
Dr. Sullivan in his notarized statement described the results of his physical examination as “essentially negative.” The final question contained in this document reads: “There is nothing else you can add to the above, is there doctor?” Sullivan’s reply was a categorical “no.”
During the first murder trial, Sullivan underwent a severe and militant interrogation concerning his examination of MacKenzie. He emphatically denied the existence of any abnormality. In reply to specific and pointed questions, he testified MacKenzie was not irrational and there was nothing “strange” about him. In addition, Sullivan said: “I can’t recall him being nervous,” and “he was normal.”
Counsel for the murder defendants, undaunted, continued to probe. It was stated that several days after his physical examination MacKenzie became so excitable he had to be confined to a padded cell. Sullivan was asked whether this information would cause him to alter his testimony. Defend
Disregarding minor conflicts and adopting the version of his testimony most favorable to defendant, nothing can justify the incredible variation between the first and second murder trials. If MacKenzie were in fact observed to be in a controlled state presumably brought on by drugs, it i» not likely Sullivan would conceal this information from thes police and not even mention it to his fellow examining-physician, Dr. Corio. In 1948, Sullivan said he compared his findings with those of Dr. Corio and “they were apparently essentially the same.”
We cannot believe Sullivan was ignorant of the purpose of his visit to police headquarters and failed to realize the State; would rely upon him as an impartial witness. Yet, it was-' only upon trial in 1951 that he first indicated the murder defendants were timorous, drugged, nervous and excited to> the point of mental distraction and docilely following a will not their own, rather than men in the full possession of their faculties.
There are material discrepancies in Sullivan’s testimony which he did not attempt to reconcile or to explain. Other witnesses refuted the' truthfulness of his statements. We have no reason to question either the capacities or the honesty of those witnesses. The evidence against Sullivan is compelling and excludes every other rational hypothesis save that of guilt.
We conclude the conviction should be affirmed as to Count 4, as well as Counts 2 and 6, of the perjury indictment.
Defendant further contends the verdict was the result of passion, prejudice, partiality and mistake engendered by the prosecutor’s inflammatory remarks. To support this-argument, reference is made to alleged inadequacies in the-special findings rendered by the trial judge pursuant to
On several occasions, we have announced that we will not hesitate to reverse when the prosecutor exceeds the latitude allowed for a forceful and vigorous presentation of the State’s case. See State v. Cerce, 22 N. J. 236, 247 (1956); State v. Siciliano, 21 N. J. 249, 263 (1955); State v. D’Ippolito, 19 N. J. 540, 550 (1955). Primarily, his remarks must not misrepresent the evidence nor diverge in a brazen manner from the facts of the case. See State v. Bogen, 13 N. J. 137 (1953); State v. Grillo, 11 N. J. 173, 183-184 (1952); State v. Tansimore, 3 N. J. 516, 534—536 (1950).
We do not think the statements criticized go beyond a permissibly vigorous presentation. It was necessary for the prosecutor to describe antecedent events in order to place the perjury proceeding in its proper setting and perhaps to show motive for falsification. As to the results of the two murder trials, no prejudice arose because admittedly the trial judge could have taken judicial notice of the previous records of the court. Undoubtedly, he knew of these verdicts anyway.
We also take into account the absence of a jury. By virtue of tradition, training and responsibility, the average judge is less likely to be swayed from objectivity through passion or the mere eloquence of counsel. From daily experience, he acquires a certain immunity to lawyers’ emotional perorations and inevitably turns to the evidence as his ultimate guide.
An exchange between Judge Morris and defense counsel at the end of the prosecutor’s summation is enlightening in this respect:
“Mr. Lord: If your Honor please, I object to these disparaging remarks that’s just been read to the Court. I am sure your Honor will decide the case on the record, and your Honor will be able, without my enumerating the remarks by the prosecutor, I am sure your Honor will be able to separate not only the portrait and philosophy of the prosecutor from the record but also his personality, so I shall have no further remarks to make.”
Turning now to consideration of the special findings, we conclude they were sufficiently adequate and that defendant is not prejudiced on this appeal by their alleged generality. The trial judge gave a terse summary of the evidence adduced and determined “there was not any basis in fact for the medical opinions expressed by Dr. Sullivan while testifying at the second murder trial to the observations he made of the murder defendants in the First Precinct Police Station on February 10 and 12, and said opinions expressed by the defendant were false and at the time he made them he knew them to be false.”
Although we find no harmful error, it is nevertheless the better practice to draw a more explicit finding which will be of greater aid on review. Here, since the special findings obviously refer to the testimony set forth verbatim in the indictment, any anticipated difficulty in ascertaining their meaning and effect was largely alleviated.
The final portion of this opinion deals with questions of admissibility.
The previous testimony of Peyton L. Manning was offered to corroborate Sullivan’s statements as to the nervous and excited condition of the murder defendants, particularly McKinley Forrest. Manning had accompanied Sullivan to the Trenton precinct station in 1948 and had also witnessed the signing of the confessions at the invitation of police officials. He testified on behalf of the State at the two murder trials.
Without delving into the question of whether there must be mutuality of parties to permit admission of former testimony, it is sufficient to say that the refusal in this case was proper since there was no showing that Manning was unavailable to testify in person. See N. J. S. 2A :81-14; New York, Lake Erie & Western Ry. Co. v. Haring, 47 N. J. L. 137, 139 (E. & A. 1885); State v. Hogan, 132 N. J. L. 148,
For the same reason, the exclusion of Dr. Moore’s former testimony was proper. He had treated Forrest during his mental collapse.
The trial court also refused to admit evidence from medical books purportedly relied upon by Sullivan in forming his diagnoses. This offer was made in order to show that defendant’s opinions were conceived and reported in good faith at the second murder trial.
The trial judge could well have permitted the introduction of excerpts from these learned treatises. They were offered not to prove the truth of the matters asserted therein but solely on the issue of intent. Cf. Lamble v. State, 96 N. J. L. 231 (E. & A. 1921); New Jersey Zinc & Iron Co. v. Lehigh Zinc & Iron Co., 59 N. J. L. 189 (E. & A. 1896). Rules circumscribing admissibility are also in normal practice considerably relaxed in the absence of a jury.
We, however, see no abuse of discretion under the circumstances. The offer was somewhat remote, and its exclusion was justified as discretionary. See Bosze v. Metropolitan Life Ins. Co., 1 N. J. 5 (1948). Cf. Iverson v. Prudential Ins. Co., 126 N. J. L. 280 (E. & A. 1940); Miller v. Trans Oil Co., 33 N. J. Super. 58 (App. Div. 1954), affirmed 18 N. J. 407 (1955).
Sullivan testified his opinions were premised on certain facts he had observed. The diagnoses in the treatises were obviously based on the assumed existence of the same symptoms. If these symptoms were not actually present in the murder defendants, Sullivan’s opinions were unwarranted and all of the medical treatises in the world could not affirm his honesty.
Objection is also made to the exclusion of two memoranda allegedly prepared by defendant at or around the time when the physical examinations were made in 1948. These were offered to demonstrate that Sullivan’s testimony at the second trial was not a recent fabrication induced by the wholesale verdict of guilty in the first murder trial.
The general rule denies admission to prior consistent statements offered to bolster a witness’ testimony. State v. D’Ippolito, 19 N. J. 540 (1955); Gluck v. Castles Ice Cream Co., 104 N. J. L. 397 (E. & A. 1928); State v. Griffin, 19 N. J. Super. 581 (App. Div. 1952); 4 Wigmore, Evidence (3d ed. 1940), §§ 1124 and 1125. Cf. Capozzoli v. Capozzoli, 1 N. J. 540 (1949). An exception is made, however, when the witness has been impeached by a previous showing of bias, interest or corruption or when it is charged that the testimony in question is a “recent contrivance.” In general, the evidence may then be admitted solely to sustain the credibility of the witness. State v. Neiman, 123 N. J. L. 341 (Sup. Ct. 1939), affirmed o. b. 124 N. J. L. 562 (E. & A. 1940); State v. Kane, 9 N. J. Super. 254 (App. Div. 1950); 4 Wigmore, Evidence (3d ed. 1940), §§ 1128 and 1129. See Epstein v. National Casualty Co., 1 N. J. 409 (1949).
But this is not to say the evidence must be admitted under any circumstances. The trial judge always retains a wide latitude of sound discretion which the appellate court must respect. See Epstein v. National Casualty Co., supra; State v. Kane, supra. We think his refusal in this case was warranted by the obvious unreliability of the memoranda which had a marked tendency to vitiate their usefulness.
D-4 was produced and marked at the second trial but apparently did not go into evidence. Sullivan testified he also had other notations on a prescription blank.
D-5 is a photostatic copy of an “Explanation of Pindings” allegedly drawn by Sullivan several days after he went to police headquarters in 1948. As far as we can ascertain from the record, this memorandum was not referred to at either the first or second murder trials.
Sullivan testified that subsequently to preparing D-5 he placed it in a bank vault in New York at the direction of his attorney. Later, he was advised to make photostatic copies of the document. This was done, and the photostats were in turn placed in the bank vault. But it is claimed that in the interim the original of D-5 mysteriously disappeared from defendant’s bedroom.
Thus, D-4 and D-5 were at all times in defendant’s exclusive possession. They were allegedly written for his own use, and no one can verify the time of their making. Unlike the situation where third parties testify as to prior consistent statements and place their own credibility on the scales of justice, we have only the word of Sullivan, the party in interest, to vouch for these documents.
At the first trial, Sullivan testified he took notations during the course of the physicals on a “prescription blank.” But D-4 is a letterhead. This raises the inquiry of whether defendant actually took two sets of notes at police headquarters.
Whether D-4 and D-5 should have been accepted into evidence is highly debatable, and we can find no harmful error in the exercise of a legitimate judicial discretion which resulted in their exclusion. Furthermore, Sullivan was permitted to testify from D-4 and D-5 during his trial and their contents, at least to some extent, were entered upon the record.
When a trial judge sits alone, questions of admissibility tend to lose much of their legal distinctiveness and to fade imperceptibly into questions of weight. It is perfectly obvious that had D-4 and D-5 been admitted, their receipt would not have balanced the vast weight of the incriminatory evidence so as to affect the disposition below. Even assuming their rejection was technically in error, we conclude the defendant suffered no “manifest wrong or injury.” R. R. 1:5-1 {a).
Lastly, it is contended reversible error was committed in receiving evidence of the verdicts at the second murder trial, which we have already disposed of, and a radio statement made on that occasion by Dr. Sullivan expressing his happiness with the results.
The latter ruling cannot be seriously deemed to have harmed Dr. Sullivan.
Sullivan conceded the tape recording of his radio interview was accurate. Defendant’s counsel admitted the “statement itself is harmless” but criticized its relevancy. The recording was played without objection. At the conclusion of the trial, the defense merely offered a general protest against the receipt of all evidence deemed to be irrelevant or otherwise objectionable.
“The sound administration of criminal justice in our democracy requires that both the end and the means be just. The accused, no matter how abhorrent the offense charged nor how seemingly evident the guilt, is entitled to a fair trial surrounded by the substantive and procedural safeguards which have stood for centuries as bulwarks of liberty in English speaking countries. This, of course, does not mean that the incidental legal errors, which creep into the trial but do not prejudice the rights of the accused or make the proceedings unfair, may be invoked to upset an otherwise valid conviction; under these circumstances it would be grossly unjust to the State and its people to grant a new trial, and in recent days this court has not hesitated to deny such relief to the defendant. * * *”
Cf. Wilson v. Savino, 10 N. J. 11 (1952); Cherr v. Rubenstein, 22 N. J. Super. 212 (App. Div. 1952).
The judgment of conviction is affirmed on Counts 2, 4 and 6 of the perjury indictment and reversed as to Counts 1, 3, 7 and 8.