Brown v. Tard

Decision Date29 December 1982
Docket NumberCiv. No. 82-2092.
Citation552 F. Supp. 1341
PartiesMichael BROWN, Petitioner, v. Elijah TARD, Jr., et al., Respondents.
CourtU.S. District Court — District of New Jersey

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael Brown, pro se.

Hilary L. Brunell, Asst. County Prosecutor, Newark, N.J., for respondents.

OPINION

LACEY, District Judge.

Petitioner in this habeas corpus action, 28 U.S.C. § 2254, is confined at Trenton State Prison. On January 19, 1979, a jury in New Jersey Superior Court convicted petitioner of first degree murder, N.J.S. 2A:113-1; murder while armed, N.J.S. 2A:151-5; and attempted rape as a lesser included offense, N.J.S. 2A:85-5, 2A:138-1. The court sentenced petitioner to a mandatory term of life imprisonment for first degree murder, to a concurrent term of 5-7 years for murder while armed, and to a consecutive term of 2-3 years for attempted rape. The Appellate Division of the New Jersey Superior Court affirmed the conviction on December 29, 1980. The New Jersey Supreme Court denied petitioner's petition for certification on June 12, 1981.

To support his contention that he is in custody in violation of federal law, petitioner claims:

(1) That an extra-judicial inculpatory statement was made solely as a result of coercion by the police;
(2) That this statement was extracted from him in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the trial court failed to give a limiting instruction when this statement was introduced to impeach petitioner's credibility;
(3) That admission of inflammatory and prejudicial photographs of the decedent's body was improper; and
(4) That hearsay statements were improperly admitted in violation of petitioner's sixth amendment rights to confrontation.
BACKGROUND

On June 22, 1978 at about 1:50 A.M., Melvin Hickson returned to his apartment, number 409, located at 250 Prospect Street, East Orange, New Jersey, and discovered the body of his girl friend, Shelly Weinstein. She had been beaten with a dumbbell and received multiple stab wounds. The ensuing investigation led to the arrest and conviction of petitioner. The details of the case relevant to this petition, as elicited at trial, follow.

At approximately 8:15 A.M. on June 21, 1978, Shelly Weinstein called Hickson at work. She informed him that her car had been broken into and would not start, and that a building maintenance worker would be up to repair the air conditioner. Decedent called Hickson again between 10:00 A.M. and 10:30 A.M. the same morning and told him that she was not going to work and that the man was there to fix the air conditioner.

When Hickson returned home at 1:50 A.M. on June 22, he observed that the bed had been moved from its usual position near the air conditioner. Screwdrivers were lying on top of the air conditioning unit, which had been opened. Hickson summoned a neighbor who called the police. The police, among other things, took specimens of a bloody palm print on the air conditioner that turned out to be petitioner's.

Petitioner was employed as a maintenance worker in Hickson's apartment building. Other maintenance employees in the building were Carlos Rivas, the superintendent, and James Tinsley. They indicated that they had seen petitioner arrive for work at about 8:00 A.M. on June 21. At about 10:00 A.M. petitioner had indicated he was going to work in apartment 408, which was vacant and adjacent to apartment 409. Petitioner did not appear for his coffee break. Tinsley and Rivas next saw him at about 11:15 A.M., with a fresh cut on his finger.

The police arrested petitioner at approximately 6:00 A.M. on June 22, 1978 at the nearby home of his sister, Marshlean Brown, with whom petitioner lived. Petitioner was taken to the detective bureau at East Orange Police Headquarters.

Detective Mark Dunbar advised petitioner of his Miranda rights. At approximately 6:30 A.M., petitioner executed a signed waiver. Petitioner was then interrogated for about an hour by Detective Dunbar and Lt. James McDowall; two other detectives also were present in the interrogation room. Petitioner was handcuffed to an eye-hook during the interrogation, and was in his underwear. The police had taken his clothing as evidence. His sister eventually brought him fresh clothing.

During this initial interrogation, petitioner denied being in Shelly Weinstein's apartment or having any knowledge of the crime. Sgt. Charles Engler interrogated petitioner for about an hour beginning at approximately 9:00 A.M. on June 22. At this time, petitioner stated that he had been in Shelly Weinstein's apartment to repair her air conditioner but had left her alive and well.

The police surgeon, Dr. Eugene Sims, examined petitioner's finger at about 5:00 P.M. on June 22. During this examination petitioner did not complain of police misconduct. No further questioning occurred that day.

At approximately 6:20 A.M. on June 23, 1978, the police received petitioner's permission to recover the clothing he had worn on June 21, 1978, which was at his girl friend's house. This clothing reacted positively for blood of the decedent's blood group.

At 9:50 A.M. on June 23, petitioner consented to having a blood sample taken by the police surgeon. Sgt. Engler administered Miranda warnings and petitioner signed a limited waiver indicating that he consented to the blood sample but wished to make no other statement at that time. Petitioner did not complain of misconduct by the police to Dr. Sims.

Later in the morning of June 23, 1978, petitioner was arraigned before Judge Kenneth Williams. Petitioner complained of being beaten by the police. Judge Williams had petitioner sent to East Orange General Hospital. Dr. Nancy Cahiwat, an emergency room physician, treated petitioner at 12:40 P.M. on June 23. She found diffuse swelling and tenderness in the right leg but no other deformities. X-rays of petitioner's chest, rib cage, and right leg were all negative. The swelling in the right leg subsequently was diagnosed as Osgood Slotter's disease. Petitioner was returned to police headquarters.

At approximately 9:45 P.M. on June 23, petitioner was brought out from his cell to pick up clothing brought by his sister. He asked to speak with Sgt. Engler. Petitioner then made an oral statement to Engler, Detective Dunbar, and Lt. McDowall to the effect that he had killed Shelly Weinstein in self defense. At 11:14 P.M. defendant was given Miranda warnings, executed a written waiver, and gave a written statement repeating the substance of the oral statement. Petitioner stated that he and Shelly Weinstein had had consensual sexual intercourse and that she had then tried to stab him with a knife. In self defense he hit her with what he thought was a pipe, and stabbed her.

At about midnight, during a coffee break while the written statement was still being taken, petitioner had an asthma attack. East Orange emergency medical personnel responded. Petitioner indicated to the police that he did not wish to go to the hospital. The statement was completed at 1:45 A.M. on June 24.

At trial, petitioner testified that at about 8:00 A.M. on June 21 he encountered Shelly Weinstein who asked him to repair her air conditioner. He went to her apartment, began draining the air conditioner, and then left for awhile, Miss Weinstein being alive and well. He went to his sister's apartment at 284 Prospect Street until 11:10 A.M. when he returned to Shelly Weinstein's apartment and found her dead. He touched her, became scared because he was on parole, and left the apartment. Petitioner also testified that he was beaten and threatened by police on both June 22 and 23 and that he signed the waivers and made the statements because of this police intimidation.

Also at trial, the government introduced photographs of the decedent's body over petitioner's objection. Finally, the medical examiner testified that Shelly Weinstein died of a fractured skull and contusions of the brain, and also received slash wounds of the throat and stab wounds.

The jury convicted petitioner on three counts, the Appellate Division affirmed, and the New Jersey Supreme Court denied petitioner's petition for certification.

EXHAUSTION OF REMEDIES

A federal habeas corpus petitioner bears the burden of proving he has exhausted his state remedies as required by 28 U.S.C. § 2254(b). Santana v. Fenton, 685 F.2d 71, 73 (3d Cir.1982); Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir.1982) (per curiam).1 To demonstrate compliance with the exhaustion requirement, petitioner must show that the federal claim he asserts in federal court has been "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Santana, supra, 685 F.2d at 73. The argument raised in federal court must be the "substantial equivalent" of that presented in the state courts, Picard, supra, 404 U.S. at 277-78, 92 S.Ct. at 513-14, to ensure that "the method of analysis asserted in the federal courts was readily available to the state court." Zicarelli v. Gray, 543 F.2d 466, 472 (3d Cir.1976) (en banc). Petitioner's failure to invoke specific constitutional provisions in state court will not preclude a finding of exhaustion where the substance of the state claim is virtually indistinguishable from the constitutional allegation raised in federal court. Bisaccia v. Attorney General of New Jersey, 623 F.2d 307, 312 (3d Cir.), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980). Petitioner, that is, must provide the state courts with a "fair opportunity" to apply controlling legal precedents to the facts bearing upon his constitutional claim. Picard, supra, 404 U.S. at 276-77, 92 S.Ct. at 512-13; accord Anderson v. Harless, ___ U.S. ___, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam).

The petitioner must exhaust his state remedies as to each of his federal claims. If a habeas petition contains...

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