United States ex rel. Washington v. Yeager, 18163.

• Decision Date: 31 March 1971
• Docket Number: No. 18163.,18163.
• Citation: 448 F.2d 87
• Parties: UNITED STATES of America ex rel. John WASHINGTON, Appellant, v. Howard D. YEAGER, Principal Keeper of the New Jersey State Prison at Trenton, New Jersey.
• Court: U.S. Court of Appeals — Third Circuit

448 F.2d 87 (1971)

UNITED STATES of America ex rel. John WASHINGTON, Appellant, v. Howard D. YEAGER, Principal Keeper of the New Jersey State Prison at Trenton, New Jersey.

No. 18163.

United States Court of Appeals, Third Circuit.

Argued November 4, 1970.

Decided March 31, 1971.

Certiorari Denied November 22, 1971.

Philip D. Saxer, Gravel & Shea, Burlington, Vt., for appellant.

Edward N. Fitzpatrick, Asst. Prosecutor, Bergen County, Hackensack, N. J. (Robert Dilts, Bergen County Prosecutor, Hackensack, N. J., on the brief), for appellee.

Before BIGGS, VAN DUSEN, and ROSENN, Circuit Judges.

Certiorari Denied November 22, 1971. See 92 S.Ct. 345.

OPINION OF THE COURT

BIGGS, Circuit Judge.

This is an appeal from the denial by the United States District Court of Washington's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Washington was indicted, along with others, for conspiring to commit armed robbery in violation of N.J.S.A. 2A:98-1 and 2A:98-2, and for murder in violation of N.J.S.A. 2A:113-1 and 2A:113-2. He was convicted of murder in the first degree and sentenced to death pursuant to N.J.S.A. 2A:113-4. He was also convicted on the conspiracy charge but sentence on that charge was suspended. On appeal, the New Jersey Supreme Court affirmed the convictions but found error in the imposition of the death sentence. State v. Laws, 50 N.J. 159, 233 A.2d 633 (1967). On reargument, the New Jersey Supreme Court modified the sentence to life imprisonment. State v. Laws, 51 N.J. 494, 242 A.2d 333 (1968). The United States Supreme Court denied certiorari, 393 U.S. 971, 89 S.Ct. 408, 21 L.Ed.2d 384 (1968).

The facts are set forth in the opinion in the companion case, United States ex rel. Laws v. Yeager, 448 F.2d 74 (1971), filed concurrently with this opinion, and need not be repeated here.

In his petition for a writ of habeas corpus, Washington lists six grounds on which he claims he is being unlawfully incarcerated. Grounds one, two, three, and five are factually identical and present the same legal issues, considered in our opinion in Laws. Therefore, in this opinion, we need consider only the issues surrounding the legality of the search and seizure and the propriety of the trial judge's and prosecutor's conduct.

I. Search and Seizure

During the hearing on the motion to to suppress evidence, the following facts were adduced:

"After the search of the Laws\' apartment had proved * * * productive, an application was made to Judge Murtagh on May 1, 1965 for a warrant authorizing the search of Apartment #7N, 15 West 139th Street, New York City where the defendant Washington lived with his parents. At this time Judge Murtagh had before him, not only the earlier affidavits of Spahr and Dennis, but also affidavits by Detective Patrick McKee of the New York Police Department and Detective Allmers of the Bergen County Prosecutor\'s office. Detective Allmers\' affidavit set forth that Dennis had identified John Washington from a police photograph as one of the conspirators in the Laws\' apartment on April 18th. It referred to the fact that currency, identified as part of the proceeds of the robbery, had been recovered from Laws\' apartment, that Laws had been arrested, and that, according to information received from Dennis, additional proceeds would be found in Washington\'s apartment. * * * Judge Murtagh also spoke by telephone with Dennis, who was then in the Bergen County Jail. Under oath, Dennis told him that he had identified Washington from a police photograph as one of the conspirators and that part of the proceeds of the robbery would be found in the Washington apartment. Judge Murtagh also spoke by telephone with Assistant Prosecutor Galda who stated also under oath, that he had shown several photographs to Dennis and that Dennis had identified Washington as one of the conspirators." 50 N.J. at 174, 233 A.2d at 640-641.

First, Washington asserts that the search warrant was defective in that Judge Murtagh improperly determined that there was probable cause. He objects specifically to the administration of telephone oaths to both Dennis and Galda. The Supreme Court of New Jersey found it unnecessary to decide this issue, stating, "Although the defendants address a challenge to the propriety of Judge Murtagh's action in taking sworn statements over the telephone (cf. 39 Am.Jur. Oath and Affirmation § 14 (1942)), we need not concern ourselves with it for, as we have stated, there clearly was probable cause for the issuance of the warrant without regard to the support furnished by the confirmatory telephone information." 50 N.J. at 174-175, 233 A.2d at 641. It does not of course follow that Judge Murtagh would have issued the warrant if it had not been for his conversations on the telephone with Dennis Kingsley and with Prosecutor Galda but there is no showing to that effect and we must rest upon the present record. But if indeed the administering of the oaths by telephone was erroneous, we cannot deem such error to rise to constitutional proportions under the circumstances at bar.

Second, Washington alleges, as did Laws, that the reliability of the informant, Dennis Kingsley, was never properly established. We conclude that Kingsley's reliability was properly established for, at the time Judge Murtagh issued the warrant, information provided by Kingsley had led to a successful search of Laws' apartment, the arrest of Laws, and the arrest of another co-defendant, Austin Baker.

Finally, Washington raises a number of other issues concerning the legality of the search and his arrest. These issues insofar as they merit discussion are disposed of by our opinion in Laws, supra, as amended.

II. Conduct of the Trial Judge and Prosecutor

Most of the allegations of constitutional error with respect to the conduct of the trial judge and prosecutor are identical with the issues raised by Laws, and, as we conclude in Laws, we find no error of constitutional dimension. Washington, however, does raise a question with respect to the propriety of the prosecutor's and trial judge's references to his prior criminal record.

At page 4198 of the trial transcript, the prosecutor, Mr. Galda, stated in summation:

"You are going to have a record of Laws\' in front of you, a record which will show a maximum of twenty-seven years already meted out, and they talk about life and liberty. Twenty-seven years was handed out by judges already in Mr. Laws\' case — a pro to be sure, and Washington, another pro, fourteen years." (Emphasis added.)

Washington's counsel did not object to this reference.

During the trial judge's charge to the jury, he summarized Detective Patrick Fusci's testimony on direct examination:

"On cross-examination sic¹ by Mr. Washington\'s attorney, he Fusci testified that Washington was convicted of robbery in 1954 and was sentenced from 2 to 7 years in the State Prison. In 1960 he was convicted of attempted robbery and sentenced from 3½ to 7 years." Transcript at 4292.

During Washington's objections to the points for charge, his counsel stated:

"I though it was awfully unfair and very, very prejudicial when you brought out what you call my cross-examination of the New York detective, or whatever he was, whether his rank was as to Mr. Washington\'s criminal record.

"As we know, the only reason that that was ever brought out was the indication or my thought at the time that I would ask Mr. Washington to testify and, therefore, I didn\'t want the state to be in a position where they could bring it forward as though I had been hiding it, but once he had not testified it is inconceivable that there was any justification at all to bring this out to the jury at the last moment, the last few moments, and as a result sir, I just don\'t see — as I say, I just used what I have taken out here, just used those as examples of the entire charge with respect to the review of the facts, the eyewitnesses of the Public Service."

Washington's attorney argues that since Washington did not take the stand at any time during the trial, it was improper for the prosecutor to mention the defendant's prior criminal record. In appellant's pro se brief, it is also argued that Judge Galanti's comments about the facts concerning Washington's record elicited during Fusci's direct-examination by Washington's own attorney was improper.

In a dissenting ...