579 F.Supp. 796 (D.N.J. 1984), Civ. A. 83-1428, Morrison v. Kimmelman

Docket Nº:Civ. A. 83-1428
Citation:579 F.Supp. 796
Party Name:Morrison v. Kimmelman
Case Date:January 30, 1984
Court:United States District Courts, 3th Circuit, District of New Jersey
 
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Page 796

579 F.Supp. 796 (D.N.J. 1984)

Neil MORRISON, Petitioner,

v.

Irwin I. KIMMELMAN, Attorney General of New Jersey; and John J. Rafferty, Superintendent, Rahway State Prison, Respondents.

Civ. A. No. 83-1428.

United States District Court, D. New Jersey.

Jan. 30, 1984

As Amended Feb. 2, 1984.

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Sweeney, Bozonelis, Staehle & Woodward by William E. Staehle, Chatham, N.J., for petitioner.

Irwin I. Kimmelman, Atty. Gen. of N.J. by Arlene R. Weiss, Deputy Atty. Gen., Div. of Crim. Justice, Appellate Section, Trenton, N.J., for respondents.

OPINION

STERN, District Judge.

In this petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, petitioner Neil Morrison challenges the constitutionality of his confinement at New Jersey State Prison at Rahway on three grounds. 1 First, petitioner contends that the warrantless search of his apartment and seizure of certain evidence submitted at trial by the prosecution violated his fourth and fourteenth amendment rights. Second, petitioner maintains that his attorney's failure to make a timely demand for discovery and a timely suppression motion at trial deprived petitioner of his right to effective assistance of counsel. Third, petitioner argues that the legal standard for ineffective assistance of counsel relied on by the New Jersey State courts in disposing of his appeal is unconstitutional. Respondents move to dismiss the petition on the ground that petitioner has failed to exhaust his state court remedies as required by 28 U.S.C. § 2254(b). For the reasons that follow, we will deny respondents motion to dismiss and grant the writ of habeas corpus.

FACTS

On March 14, 1978, a four-count indictment was brought against petitioner Morrison, consisting of counts of carnal abuse, forcible rape, impairing the morals of a child and private lewdness, all in connection with the alleged rape by Morrison of a 15 year old girl who worked for him. Morrison waived his right to a trial by jury, and in March, 1979, a bench trial took place

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over six days. The State's case consisted of testimony by the victim and her mother, as well as scientific evidence attempting to establish that Morrison had committed the rape. The victim testified that she had worked after school at Morrison's fish store, and that on the day in question, Morrison had asked her to accompany him on several deliveries. She stated that after stopping at a few bars, Morrison drove her to his apartment, where, after forcing her onto his bed, he raped her. The victim testified that Morrison then drove her home. After she eventually told her mother what had happened, the victim stated, her mother called the police who came and took her to the hospital. At the hospital, various studies were performed, including vaginal washes used to detect the presence of sperm. After being examined, the victim went with Paterson Police Detective Dolores Most and two other police officers back to Morrison's apartment. It was the victim's testimony that Detective Most remained at the apartment, and that she was accompanied home by another police officer.

The State called the victim's mother, who testified that after her daughter told her of the rape, the mother retrieved her daughter's underpants, which she said felt sticky, and later gave them to the police. Police Officer Talarico testified that he took the underwear and delivered it to the Police Laboratories.

Detective Most took the stand and testified that she had gone to Morrison's apartment with the victim, where they were let in by Wesley Harris, a friend of Morrison who lived in the same building. Most stated that she had photographs taken of the apartment, and that she then took the sheet from Morrison's bed. At this point in the testimony, defense counsel objected, stating that unless Most had had a search warrant or some other justification for taking the sheet, the testimony regarding the sheet, and the sheet itself, could not be offered in evidence. It soon became clear, however, that defense counsel had failed to request discovery prior to trial, and as such, was unaware that the search had taken place and that the State was in possession of the sheet. Because of the failure to conduct discovery, defense counsel had not been able to timely move to suppress the evidence prior to trial, pursuant to New Jersey Court Rule 3:5-7(a). The court, while stating that had a motion been timely made there would have been a "very valid basis for suppression", nonetheless held that defense counsel could no longer make such a motion since trial had begun. The court criticized defense counsel for having been remiss in failing to request discovery, noting that at least two reports--a chemical analysis of the bedsheet ordered by the State, and a police report prepared by Most--clearly indicated that the State had Morrison's sheet in its possession. Defense counsel's objection was overruled, and Most stated that the sheet, which had some stains and hairs on it, was sent to the Police Lab.

The State then called a number of witnesses who had performed various lab studies on the stains and hairs found on the sheet, on blood and hair exemplars provided by the victim and Morrison, on the victim's underwear, and on the victim's physical examination results. These lab technicians collectively established that: stains on the seized bedsheet were positive for sperm from a man of blood type "O"; stains on the victim's underwear were positive for sperm from a man of blood type "O"; some of the vaginal tests performed at the hospital showed the presence of sperm; Morrison's blood type is "O"; and hairs recovered from the bedsheet were similar to head hair of both Morrison and the victim.

The defense called four witnesses and the defendant himself, who developed a different version of the facts. It was defendant's testimony that he owed money to the alleged victim, and that she and her mother had been persistently demanding that she be paid. Morrison stated that on the day in question, he had been unable to pay his employee since the store had been robbed the night before (this testimony was corroborated by Mack Ross, co-owner of

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the fish store), so he went to make collections--not deliveries--from three bars that owed the store money. Defendant testified that the purported victim insisted on going with him to collect. After all three bars were unable to pay him any money, according to Morrison, the two of them went to Morrison's apartment building to collect rent money that Morrison was owed from some tenants to whom he rented apartments. He testified that the girl went up to his room, that she sat on his bed, that he tried unsuccessfully to collect money from his tenants, and that they then returned to the store. Wesley Harris, friend and purported lessee of Morrison, had earlier testified that he was present in the room with Morrison and the victim for nearly the entire time that the two were in the building. Morrison also stated that he had had sex with women, other than the victim, on the bed, and that Mack Ross would on occasion use his room and bed for a "sexual outlet". According to Morrison, the alleged victim went home, and her mother later told Morrison that she would "fix him" for not paying her daughter. Morrison stated that subsequent to charges being filed, the mother had on various occasions indicated that she would drop them. Morrison said that on the Sunday before the trial began, he met with her and the victim at the mother's...

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