Application of Holley

• Decision Date: 12 June 1962
• Docket Number: Civ. No. 442-62.
• Citation: 205 F. Supp. 933
• Parties: Application of Mark S. HOLLEY, for a Writ of Habeas Corpus.
• Court: U.S. District Court — District of New Jersey

205 F. Supp. 933

Application of Mark S. HOLLEY, for a Writ of Habeas Corpus.

Civ. No. 442-62.

United States District Court D. New Jersey.

June 12, 1962.

LANE, District Judge.

Petitioner is presently confined in the New Jersey State Prison at Trenton, New Jersey, owing to his conviction of first degree murder in the Essex County Court on April 8, 1960. On January 10, 1961, the Supreme Court of New Jersey affirmed Mark S. Holley's conviction. State v. Holley, 34 N.J. 9, 166 A.2d 758 (1961). Certiorari to the Supreme Court of the United States was applied for and denied. 368 U.S. 854, 82 S.Ct. 89, 7 L.Ed.2d 51 (1961). Petitioner has now brought before this court an application for a writ of habeas corpus.

Samuel Baker was shot and killed at 50 Richmond Street, Newark, New Jersey, about 10:30 a. m., on October 25, 1959. His death occurred on the steps leading to the third floor of a three-story apartment house. Approximately twenty minutes after the homicide the police arrived. They thereupon conducted a thorough search of the premises. The only weapon found was a shotgun. The police returned later that evening, however, because of a phone call from Willie Frank Jordan, a relative of the decedent. Jordan showed them an ice pick on the steps leading to the third floor. Holley's wife, according to Jordan, had spotted the ice pick when she and Jordan were walking down the stairs. Jordan stated that upon seeing the pick, he had called the police.

One of petitioner's defenses at trial was justifiable homicide. Allegedly, Baker had started up the stairs toward him with an ice pick in his hand, hence there was an assault, Holley contended, which placed him in imminent peril of death or great bodily harm. Petitioner asserted that in this instance the law impliedly authorized him to kill his attacker through the lawful self-defense of using his shotgun. For discussion of innocent homicide see Perkins on Criminal Law, 28-29 (1957 Ed.).

It seems that the State had anticipated this defense at trial. Therefore, the assistant prosecutor called Willie Frank Jordan to the stand. After Jordan was sworn in, the following direct examination transpired:

"Q Mr. Jordan, where do you live? A 32 West Kinney, Newark.

"Q With whom do you live at that address? A Sir?

"Q Whom do you live there with, or do you live there alone? A Me and my wife Cora Lee Jordan.

"Q You live there with your wife? A Yes, sir.

"Q How long have you lived there? A Just about two years.

"Q Just about two years. Have you ever been convicted of a crime?

"MR. FIELO: Oh, object to that, if the Court please.

"MR. McKEOWN: State v. Fox 12 N.J.Super. 132, 79 A.2d 76, if the Court please.

"THE COURT: I will allow it.

"Q Have you ever been convicted of a crime? A Yes, sir.

"Q What was the crime? What was the crime?

"THE WITNESS: Do I have to answer, Judge?

"THE COURT: Yes, you will have to answer.

"A It was murder, sir.

* * * * * *

"Q When you got down to the second-floor landing what occurred there? A Well, Mrs. Holley showed me an ice pick was laying there.

"Q Mrs. Holley showed you an ice pick? A That's right.

"Q And that was on the second-floor landing? A Right at the second-floor landing."

When the judge was delivering his charge to the jury, among other things, he stated:

"Now, during the course of this trial one Willie Frank Jordan testified as a witness and during the course of his testimony it was revealed that heretofore Jordan had been convicted of a crime. Upon the subject of credibility of a witness, it is the law of our State that no person offered as a witness in the course of a trial shall be excluded from testifying by reason of his having been convicted of a crime; but that evidence of such a conviction may be considered by the jury for such effect it may have upon the credit of such person as a witness. Therefore, in determining whether or not you believe the testimony of the witness Willie Frank Jordan, or what weight or credit you shall in your judgment accord to his testimony given during the course of this trial, you may take into consideration the admitted fact that prior hereto he was convicted of a crime."

Petitioner Holley's argument, couched in general and vague language, is:

"* * * He was denied a fair and impartial trial due to the cumulative effect of the admission of certain highly prejudicial evidence and the manner in which the said evidence was presented offended a sense of justice and thus the proceedings were fundamentally unfair; that the learned trial judge by quashing a subpoena duces tecum — being one of the basic rights of an accused under our system of jurisprudence and being so essential as to include, as a minimum, the right to such process; and, that the practice and mode followed by the State court, was so clearly at variance with the procedure constituting `due process of law' under the 14th Amendment that the judgment must be completely invalidated."

28 U.S.C.A. § 2254 requires as a matter of national policy that affirmative relief be withheld from a state prisoner when this court exercises its power to entertain and dispose of petitions of habeas corpus until he has exhausted the remedies available in the state courts. The dual system of government in the United States requires that the State has the first opportunity to decide such issues when persons under the State's process raise them. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 (1950).

In denying Holley's appeal for reversal of the trial court's conviction, the New Jersey Supreme Court said:

"Defendant urges as the only ground of appeal that it was error for the trial court to permit Jordan's conviction to be shown and that the error was of such magnitude as to require a new trial." 34 N.J. 10, 13, 166 A.2d 758, 760, cert. denied 368 U.S. 854, 82 S.Ct. 89, 7 L.Ed.2d 51 (1961).

Hence, the issue that the New Jersey Supreme Court decided was whether the admission of the evidence demonstrating Jordan had a prior conviction was reversible error. Accordingly, the only question before this court is whether the admission of this evidence infringed Holley's due process guarantee in the Fourteenth Amendment of the Constitution. He has failed to exhaust his state remedies on his other arguments.¹

The common law forbids a party to impeach his own witness. McCormick on Evidence, § 38, p. 70 (1954). Generally, upholders of this position have claimed that the aggregate of three rationales reflects why we should maintain the rule.

The first rationale is that a party should be morally bound by his witness' statements. In repudiating this notion, it is stated in 3 Wigmore on Evidence, § 897, p. 385 (3d Ed. 1940):

"1826, 1934, Putnam J., in Brown v. Bellows 3 4 Pick. 179, 187, 194 and Whitaker v. Salisbury, 15 Id. 534 545: `A party is not obliged to receive as unimpeached truth everything which a witness called by him may swear to. If his witness has been false or mistaken in his testimony, he may prove the truth by others.'

"`* * * It would evidently be a rule that would operate with great injustice, that a party calling a witness should be bound by the fact which was sworn to. No one would contend for a rule so inexpedient.'"

The second rationale is that a party should guarantee his witness' general credibility. In criticizing this, Wigmore asserts:

"Another and more satisfactory answer would be that the ends of truth are not to be subserved by binding the parties with guarantees and vouchings, and that it is the business of a court of justice, in mere self-respect, to seek all sources of correct information, whatever foolish guarantees a party may or may not have chosen to make." Id. at § 898, p. 386.

The third rationale is that a party ought not to have the means to coerce his witness. As to this, Wigmore comments:

"Taking this subjective point of view, we find that there is something of a reason, — a reason easy to grasp; founded on reality, not on cant; legitimate in its policy, orthodox in its history, though narrow in its scope, — the reason that the party ought not to have the means to coerce his witnesses. * * *

* * * * * *

"The true foundation of policy (so far as there is any) is here manifest. If it were permissible, and therefore common, to impeach the character of one's witness whose testimony had been disappointing, no witness would care to risk the abuse of his character which might then be launched at him by the disappointed party." Id. at § 899, p. 388.

Wigmore submits that the possibility of a...