United States ex rel. Smith v. Yeager, Civ. No. 766-65.

• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
• Writing for the Court: Stephen F. Lichtenstein, Trenton, N. J., of counsel
• Citation: 336 F. Supp. 1287
• Parties: UNITED STATES of America ex rel. Edgar H. SMITH v. Howard YEAGER, Warden, New Jersey State Prison, Trenton.
• Docket Number: Civ. No. 766-65.
• Decision Date: 13 May 1971

336 F. Supp. 1287

UNITED STATES of America ex rel. Edgar H. SMITH
v.
Howard YEAGER, Warden, New Jersey State Prison, Trenton.

Civ. No. 766-65.

United States District Court, D. New Jersey.

May 13, 1971.

336 F. Supp. 1288

Steven M. Umin, David N. Webster, (of Williams & Connolly, Washington, D. C., for petitioner.

Stephen F. Lichtenstein, Trenton, N. J., of counsel.

Robert Dilts, Bergen County Prosecutor, Edward N. Fitzpatrick, Hackensack, N. J., Harold N. Springstead, Dumont, N. J., on the brief, for respondent Yeager.

OPINION and ORDER

GIBBONS, Circuit Judge.^*

Petitioner Edgar Smith is before the court seeking a writ of habeas corpus. His petition was filed in 1965. He is confined in the New Jersey State Prison at Trenton awaiting the execution of a death sentence imposed by the Bergen County Court on June 4, 1957, after a jury trial for murder. Since that time petitioner has sought unsuccessfully to have the conviction set aside.¹ Heretofore this court, without an evidentiary hearing on the allegations of the petition, relying on the contents of the state court trial record, declined to issue the writ. The Third Circuit Court of Appeals affirmed, holding that petitioner's attorney had waived a federal evidentiary hearing. United States ex rel. Smith v. Yeager, 395 F.2d 245 (3 Cir. 1968). The Supreme Court reversed. Smith v. Yeager, 393 U.S. 122, 89 S.Ct. 277, 21 L.Ed.2d 246 (1968). The case was then remanded to this court for reconsideration of petitioner's request for such a hearing. Following the remand petitioner's attorney, relying on Greenwald v. Wisconsin, 390 U.S. 519, 88 S.Ct. 1152, 20 L.Ed.2d 77 (1968), urged that even on the state court record the totality of

336 F. Supp. 1289

circumstances surrounding the taking of a statement by petitioner used in evidence against him at the trial compelled the issuance of the writ. On August 3, 1970, this court ruled that it was bound by a prior ruling of the Third Circuit² upholding the conclusions of voluntariness based on the state court record

That state court trial was the only previous opportunity petitioner had to present evidence on his Fifth Amendment claim. On November 30, 1970, this court ruled that evidence crucial to the adequate consideration of that claim was not fully developed in that record, and that an evidentiary hearing must be held. 28 U.S.C. § 2254(d) (3); Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The November 30, 1970, opinion also delimited the scope of the factual issues to be determined. At issue is the voluntariness under federal constitutional standards of all admissions by petitioner which were used against him in the course of his state court murder trial. These admissions may be divided for purposes of discussion into the following categories:

1. Verbal admissions made by petitioner while in the company of various police officials operating at and out of the police headquarters, Mahwah, New Jersey, between the time he was taken into custody at Ridgewood, New Jersey at about 11:30 p. m. on March 5, 1957, and the time he was taken to the office of the Bergen County Prosecutor in Hackensack, New Jersey, at about 8:30 a. m. on March 6, 1957. Various police officers testified at the trial to such admissions.

2. Verbal admissions made during petitioner's interrogation at the Prosecutor's office on the morning of March 6, 1957. Detectives Charles DeLisle and Walter Spahr testified at the trial to such admissions.

3. Verbal admissions made first at the Prosecutor's office and thereafter at and around the scene of the homicide on the afternoon of March 6, 1957, which admissions were in the form of answers in an interrogation conducted by the First Assistant Prosecutor of Bergen County, Fred Galda. These admissions were recorded by a court reporter, were transcribed, and the transcript was read into evidence at the trial.

4. A verbal admission made by petitioner to Detective DeLisle in the Bergen County jail on March 11, 1957 with respect to the accuracy of the transcript of the interrogation on the afternoon of March 6, 1957. Detective DeLisle testified at the trial to such an admission.

5. Verbal admissions made to three psychiatrists, Drs. Zigarelli, Spradley, and Collins, during the course of their separate examinations of the petitioner. These examinations were made for the purpose of determining petitioner's sanity. The admissions were referred to during the cross-examination of petitioner at the trial and in the State's closing argument to the jury as tending to verify the admissions of March 6, 1957.

Petitioner contends that each of the separate categories of admissions was obtained in violation of his privilege against self-incrimination guaranteed by the Fifth Amendment, and hence was improperly admitted in evidence. Respondent contends that every incriminating statement was voluntary.

At the hearing on the petition twenty-eight witnesses testified, one by deposition, and fifty-six exhibits were received in evidence. From the testimony and exhibits, giving due regard to questions of credibility and the strength of recollections, I find the facts relevant to the

336 F. Supp. 1290

disposition of this petition for habeas corpus to be as set forth hereinafter

On the morning of March 5, 1957, the body of Victoria Zielinski was discovered in a sand pit in Mahwah, Bergen County, New Jersey, near her home. She had been killed by a severe blow to the head which crushed her skull. Guy W. Calissi, the Prosecutor of the Pleas of Bergen County, took charge of the investigation, centering investigative activities at the headquarters of the Mahwah Police Department in the municipal building of that borough. Assisting Mr. Calissi in the investigation were First Assistant Prosecutor Fred Galda, a number of detectives and investigators of the Bergen County Prosecutor's office, and police officers of Mahwah and of the adjoining Borough of Ramsey. Investigation of various persons who might have been acquainted with the deceased continued through the day and into the evening. The case received widespread attention from the press, representatives of which were present at the Mahwah municipal building on the evening of March 5, 1957.

At about 10:00 p. m. John Gilroy came to the Mahwah police headquarters in the company of an officer of the Ramsey police department. He informed Mr. Galda, who was then in charge, that on the evening of the previous day, March 4, he had loaned his Mercury car to Edgar Smith after Smith, Gilroy and one Rockefeller had spent the afternoon bowling; that Smith returned the car late that evening and that on March 5 he had noticed some stains on the floor mat and seat cover; that on March 5 at Smith's request Gilroy, accompanied by Don Hommel, had picked up Smith, his wife and baby at the home of Smith's mother-in-law in Ridgewood and had driven Smith to his trailer home in Mahwah; that Smith had left his wife and baby at the trailer and accompanied Gilroy and Hommel to Ramsey; that Hommel had commented, with respect to the investigation of Victoria Zielinski's death that the police were looking for a Mercury car; that Hommel's comment about the Mercury car had produced a startled look on Smith's face; that Smith had told Gilroy that on March 4 he had vomited on his pants and had thrown the pants away; that on the trip to Ramsey from the trailer Smith had carried a pair of shoes which he said he was taking to a shoe repair man; that Smith separated from Gilroy and Hommel for a time in Ramsey, taking the shoes with him; and that Smith was then at his mother-in-law's house in Ridgewood.

Detectives Graber and Garabedian were dispatched with Gilroy to where his car was parked. At about 10:45 p.m. they examined it, concluded that some of the stains which Gilroy pointed out could have been blood, took the floor mat, and secured the vehicle. They asked Gilroy if his tires had been changed within the last two years and he told them they had not. By this time the Prosecutor's office had had plaster impressions made of certain tire tracks near the place where the body had been found. The detectives reported back to Galda, with Gilroy, and advised him of their suspicion that the stains were blood.

Galda directed Graber and Garabedian to go to the house in Ridgewood where Smith was staying and bring him to Mahwah headquarters. Gilroy accompanied them to give directions, but remained in the car when Graber and Garabedian entered the house at about 11:30 p. m. They identified themselves as Prosecutor's detectives, told Smith that the Prosecutor would like to speak to him at the Mahwah Police Department and asked him to return with them. They had no arrest warrant. They gave no warnings of any kind, but they did inform Smith that they were bringing him in for questioning with respect to the murder of Victoria Zielinski. Smith said he was not surprised since he expected the police to question everyone with whom Victoria had been acquainted. Smith was not informed that he was free to refuse to accompany the detectives. In Garabedian's investigation report of March 12, 1957, he states that he and

336 F. Supp. 1291

Graber "picked up Edgar Smith . . . and brought him to Mahwah Police Headquarters." (Ex. R-1). Graber's report of March 15, 1957 (Ex. R-3) states: "Edgar Smith was brought back to the Mahwah police station for questioning." Beginning at 11:30 p. m. March 5, 1957, Smith was under the impression that he was in police custody, and he was in fact in such custody

Upon arriving at the Mahwah municipal building Smith and Gilroy were asked to wait in the municipal council chamber adjoining the room used as police headquarters. In that room were policemen and several newspaper reporters. When one of the reporters attempted to interview Smith a police official chased her away. Gilroy described Smith's demeanor at about this time as cocky or self-assured.

After a short wait Smith was...