Green v. Yeager

• Decision Date: 13 November 1963
• Docket Number: Civ. A. No. 653-63.
• Citation: 223 F. Supp. 544
• Parties: James GREEN, Petitioner, v. Howard YEAGER, Warden, New Jersey State Prison, Respondent.
• Court: U.S. District Court — District of New Jersey

223 F. Supp. 544

James GREEN, Petitioner, v.Howard YEAGER, Warden, New Jersey State Prison, Respondent.

Civ. A. No. 653-63.

United States District Court D. New Jersey.

November 13, 1963.

James Green, pro se.

WORTENDYKE, District Judge.

James Green is in the custody of the State of New Jersey and confined in the New Jersey State Prison in this District.He was confined there to serve consecutive sentences imposed by the Essex County(New Jersey)Court, for atrocious assault and battery, and for robbery, imposed in that order, after separate jury trials and convictions on these respective charges.At the time of his trial and conviction for robbery, he was also tried and convicted for carrying a concealed weapon, but sentence upon the latter conviction was suspended.He has made written applications to this Court for a writ of habeas corpus with respect to each sentence, but the instant application relates only to his custody under the sentence for robbery and his conviction for carrying a concealed weapon.

From the filing of the present application, on August 5, 1963, to the present, petitioner has been confined in the State Prison only pursuant to the sentence for robbery because he has served the maximum on the prior sentence for atrocious assault and battery.He was first sentenced on the assault charge on January 30, 1959, but that conviction was reversed on April 20, 1960 after he had served part of the sentence.He was retried and convicted again on the same assault charge on January 9, 1961, but in the meantime he had engaged in the activity in November, 1960, which led to the charges of robbery and carrying a concealed weapon.He was sentenced on the second assault conviction on March 1, 1961 to a term of 3 to 5 years, and the next day, March 2, he was convicted of the robbery and concealed weapon charges.On March 22, he was sentenced on the robbery charge to a term of 5 to 7 years to be served consecutively to the prior assault sentence, and he received a suspended sentence on the concealed weapon charge.

Although the two consecutive sentences would be, for the purpose of determining eligibility for parole, aggregated for a total minimum term of 8 years and a total maximum of 12 years, R.S. 30:4-123.10, N.J.S.A., the sentences must be viewed separately for the purpose of determining petitioner's right to question his custody by a writ of habeas corpus.The Court has been informed, by a letter dated November 6, 1963, from Donald C. Thoms, Senior Classification Officer of the New Jersey State Prison, that, giving petitioner all the credits due him on the assault sentence, such as those for commutation time and for time served on the original assault conviction, the maximum time on the assault sentence had been served by petitioner on October 24, 1962.Consequently, from that date to the present, petitioner's custody has been based solely on the robbery sentence, which he attacks by the present application.

This Court, on August 30, 1963, ordered respondent, the Warden of the New Jersey State Prison, to show cause why petitioner was in his custody and to produce the petitioner before the Court.Pursuant to that Order, a hearing was held by this Court on October 14, 1963 at which petitioner appeared pro se and the State was represented by the Prosecutor of Essex County.The only testimony given was that of the petitioner, in his own behalf.

Green represents that, on November 11, 1960, he resided with a woman in a room at 293 Mulberry Street, Newark, New Jersey and that late that night his room was entered and searched by officers of the Newark Police Department, without warrant for the search or for his arrest.He was subsequently arrested in a public street on the same night, and his person was searched incident to that arrest.On January 16, 1961, the Essex County(New Jersey) Grand Jury returned two indictments: #760-60, against Alice Brown(the woman with whom Green says he lived at the time of the offense charged therein) and against "James X. Green"(intended to designate the present applicant), charging them with robbery in violation of N.J.S. 2A:141-1, N.J.S.A., on November 11, 1960; and #761-60 against "James X. Green"(also intending to designate the present applicant), charging him with carrying a concealed weapon, on November 12, 1960, in violation of N.J.S. 2A:151-41, N.J.S.A.These indictments were tried together.Green, represented by counsel, was found guilty under both indictments.He was sentenced to 5 to 7 years in State Prison on the robbery indictment (#760) and received a suspended sentence on the concealed weapon indictment (#761).From these convictions, he appealed to the Appellate Division of the Superior Court of New Jersey which affirmed them on January 25, 1963.His grounds for reversal on that appeal were (1) the trial judge made a prejudicial comment to a witness, (2)the prosecutor was seen to speak to members of the jury outside of the court room during the trial, (3) evidence obtained through illegal search and seizure was admitted, (4) lack of warrant for his arrest, and (5)defendant was prejudiced by the erroneous use of the middle initial "X" in his name in the indictments and during the trial.Petitioner thereafter filed with the Clerk of the Supreme Court of New Jersey a document entitled "Application and Petition for Writ of Habeas Corpus", accompanied by a motion for leave to proceed thereon as an indigent.These applications were treated by that Court as a petition for certification, which it denied by its order of April 1, 1963.

This Court has perused a transcript of the proceedings upon the trial of the petitioner which commenced on March 1, 1961.The evidence produced upon that trial discloses that, on the evening of November 11, 1960, one Barayasarra, while consuming alcoholic beverages in a tavern in the City of Newark, New Jersey, was solicited by a woman patron whom he accompanied to a room in which she lived with the petitioner, where all three of these individuals continued to indulge in the consumption of whiskey over a period of hours.During that period, certain articles of personal property were taken from Barayasarra, allegedly through threats and batteries made to him and upon his person, resulting in physical injury.After the robbery and alleged beating and in the absence of the petitioner and the woman with whom he was living, Barayasarra left the place of the robbery and complained thereof to the municipal police, with whose co-operation he received clinical medical treatment.He thereafter guided representatives of the police department back to the room in which the alleged beating had occurred.The room was then unoccupied, and the door thereof was either open or unlocked.Representatives of the police department examined the interior of the room and found therein some of the articles which had been taken from the victim.Thereafter, still accompanied by the victim, the representatives of the police department left the room and sought petitioner and the woman with whom he lived.Upon their being pointed out on the street by the victim, the police arrested petitioner and the woman and, in the course of that arrest, searched his person and removed therefrom the victim's wrist watch, which petitioner was then wearing, and a knife susceptible of use as a dangerous weapon which petitioner was carrying concealed upon his person.Some of the articles of personal property which had been taken from the victim and found by the police on their visit to petitioner's room prior to his arrest were admitted in evidence on petitioner's trial, without objection by petitioner's trial counsel.

The grounds presently relied upon for the allowance of the writ by this Court are: (1) illegality of the search and seizure at the time of petitioner's arrest; (2) lack of a warrant for his arrest; (3) prejudice to petitioner resulting from the trial court's comment to a witness; and (4) allegedly prejudicial conduct by the prosecutor in talking to the jurors outside of the court room.These grounds were urged by petitioner in the appellate court and ruled upon adversely to him there.Green's pending application (here) was supplemented by his letter of August 7, 1963 to this Court, in which he complains that the erroneous use of the middle initial "X" in his name, as set forth in the indictments and referred to during the trial, was prejudicial in that such a letter was frequently used by members of a sect, known as "Muslims", which encourages interracial antagonism.The same ground had been urged by Green in the Appellate Division and was also rejected by that Court as a ground for reversal.

Petitioner argued, in his brief on appeal, that no warrant had been obtained for his arrest, and that a watch and knife which had been removed from his person were admitted in evidence at the trial.He also complains of the admission in evidence of a wallet and a dollar bill taken by the police from the home of the petitioner, which, he charges, was entered and searched by the police without a warrant.Relying on Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081(1961), petitioner argued in the Appellate Division that his alleged crime had been committed prior to the arrival of the police, and that the search of petitioner's room was conducted without warrant, out of petitioner's presence and without his consent.That court held, respecting petitioner's contention that he was convicted by the use of illegally obtained evidence: "This case does not justify invoking the doctrine of Mapp v. Ohio * * *.Here the conviction was not predicated upon unlawfully seized evidence.The crucial exhibits — defendant's knife and the victim's wrist watch — were taken from the defendant incident to a valid arrest.The wallet, check and dollar bill found on the floor of the room on Mulberry Street were property belonging to the complaining witness.The police did not make an...