United States v. Pinto

• Decision Date: 23 April 1968
• Docket Number: No. 16722.,16722.
• Citation: United States v. Pinto, 394 F.2d 470 (3rd Cir. 1968)
• Parties: UNITED STATES of America ex rel. James Edward HILL, Appellant, v. Warren PINTO, Superintendent New Jersey State Prison Farm, Rahway, New Jersey.
• Court: U.S. Court of Appeals — Third Circuit

394 F.2d 470 (1968)

UNITED STATES of America ex rel. James Edward HILL, Appellant, v. Warren PINTO, Superintendent New Jersey State Prison Farm, Rahway, New Jersey.

No. 16722.

United States Court of Appeals Third Circuit.

Submitted on Briefs November 20, 1967.

Decided April 23, 1968.

James Edward Hill, pro se.

John J. Barry, First Asst. Prosecutor, Vincent Panaro, County Prosecutor, Mercer County, Trenton, N. J., for appellee.

Before HASTIE, FREEDMAN and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

FREEDMAN, Circuit Judge.

Appellant was convicted in a New Jersey state court of murder in the second degree and was sentenced to fifteen to twenty years imprisonment. The Supreme Court of New Jersey affirmed his conviction.¹ His subsequent pro se petition in the district court for a writ of habeas corpus was denied² and from that action he brings this appeal.

I.

Early in the trial the prosecutor stated in open court in the absence of the jury that petitioner had threatened to kill the State's principal witness, Arthur Lee Hames, if he testified against him and sought to present Hames' testimony of the threat. An objection having been interposed the trial judge left open the question whether the testimony was admissible. Next day the court discussion of the threat was reported in the local newspaper. When petitioner's counsel called this to the attention of the trial judge it was apparently agreed that an instruction to the jury, which had not been sequestered, to ignore the newspaper report would be appropriate. As it turned out, however, no specific request for such an instruction was made and the trial judge said nothing on the subject to the jury.

Three days after the newspaper report appeared the trial judge permitted Hames to testify to petitioner's threat against him and refused the request of petitioner's counsel that petitioner be permitted to testify for the limited purpose of denying that he made the threat. The trial judge ruled that testimony by petitioner in this area would subject him to complete cross-examination on the substantive evidence of his guilt and also to impeachment of his credibility.

Petitioner argues that (1) he was denied due process of law because of the admission of Hames' testimony regarding the threat; (2) he was denied due process of law because of the harmful effect of the newspaper report; and (3) Hames' testimony violated his privilege against selfincrimination because it forced him to take the stand.

(1) Hames' testimony regarding the threat made by petitioner was given in these words: "He said if I go up to testify against him, he said, `I already killed one and would kill another.' He wouldn't get any more time for killing another."

This testimony was plainly admissible because it was relevant to show consciousness of guilt. 2 Wigmore, Evidence, §§ 277-278 (3d ed. 1940). The threat was also relevant because the form it took justified an inference that petitioner acknowledged that he had killed the victim for whose murder he was on trial.

(2) It follows from the admissibility of the testimony of the threat that there is no basis for the claim that due process was violated because of the failure to caution the jury to disregard the newspaper report. Hames' direct testimony of the threat obliterated whatever harm the newspaper report alone might have done.

(3) Petitioner's claim that his privilege against self-incrimination was violated because he was forced to take the witness stand in his own behalf in order to deny making the threat against Hames falls with the conclusion that Hames' testimony was admissible. The privilege is not violated because a defendant feels the need to repel with his own testimony incriminatory evidence which was properly received against him.

II.

The State sought to prove in its case in chief that petitioner had killed his former mistress, Anita Folk, by showing that he had struck her on the head with a chair when he found her in bed with another man. Hames testified to this effect, and a police officer testified that petitioner orally admitted that he had done so when the police pressed him to acknowledge it.

Petitioner, taking the stand, denied making any threat against Hames and testified to his version of the occurrence at Miss Folk's apartment. He admitted that he had gone there on the evening the State charged she was killed, but claimed that when he discovered another man there he merely slapped her face with his open hand. He denied that he had told the police that he struck Miss Folk with a chair, although he said they had persisted in attempting to force such an admission from him. He said that after persistent questioning, threats and promises by the police he gave them two statements,³ and without disclosing their contents said the first one was false.

On cross-examination the prosecutor read to petitioner the questions and answers contained in the two statements and interrogated him regarding them. It was disclosed that in the first statement petitioner had denied that he was present at Miss Folk's apartment and in the second statement had admitted being there but claimed he had merely struck her with his hand. Later in rebuttal the State offered the statements in evidence. No objection was made by petitioner's counsel to any of this cross-examination or to the admission of the statements in evidence.

Petitioner contends that the two written statements which the police obtained from him were involuntary and were taken in violation of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), decided prior to his trial, because he had not been advised of his right to counsel. He asserts that they should not have been used against him without a hearing to determine if they were voluntary, as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

Without determining the merits of this contention the district judge, on the basis of the state court record and without holding an evidentiary hearing, decided that petitioner's court-appointed counsel had made the deliberate choice as a matter of trial strategy to make no objection to the use of the statements against him and thereby under Henry v. State of Mississippi, 379 U.S. 443, 451-452, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), had bound petitioner to a waiver of any right to relief on federal habeas corpus. The district judge found that this bypassing of objection at the trial occurred because the statements did not differ substantially from petitioner's testimony on direct examination and that petitioner therefore had more to gain than to lose in having the statements admitted.

We do not believe that the state court record, which contains no hearing on waiver, is alone sufficient to justify a finding that there was a deliberate bypassing of the right to object to the use of the statements. It is true that the view is possible that petitioner's original mention of the statements and the failure of his counsel to object to the cross-examination regarding their contents and to their admission in evidence on rebuttal formed part of a design to secure the benefit of what was favorable in them and to lay the foundation for his counsel's later argument to the jury that the state's testimony of an oral admission that he had struck Miss Folk with a chair should not be credited because if it had been made it too would have been reduced to writing. But this is not the only conclusion which may be drawn from the state court record. While the district judge considered the statements more helpful than harmful to petitioner the record shows that the State's use of the statements was sufficiently harmful to him to justify an inference that his counsel failed to object because he did not know that they might have been excluded.

The first statement, which petitioner acknowledged was false, undoubtedly affected him detrimentally. It went into an elaborate lie that he had last seen Miss Folk on the street on the afternoon preceding the night she died and that she then bore signs of having been beaten, presumably by someone else. It went on to relate a fabricated account of petitioner's activities that evening. The making of such an admittedly false statement was in itself evidence of guilt. 2 Wigmore, Evidence, § 278 (3d ed. 1940). It also discredited petitioner before the jury as a dishonest witness. The trial record shows how much the prosecutor made of the falsity of this statement. He repeatedly read from it, emphasizing item by item the dishonesty of the denials it contained, forcing petitioner to acknowledge again and again that his answers in the statement were false, even though he gave them under oath. The effect which the use of this statement had on petitioner's case went far beyond the harm done by his acknowledgement on the stand that out of fear of the police he had given them a statement which was false. Moreover, petitioner's reference to the first false statement on direct examination when he might have remained silent on the subject may well indicate that his counsel had intended to minimize by anticipation the harm he thought inevitable because the statements ultimately would be admitted against him.

The second statement, although it was consistent with petitioner's claim that he did not strike Miss Folk with a chair, contradicted his testimony in a number of instances, and the prosecutor heavily emphasized these contradictions. Petitioner testified that he did not know if Miss Folk had fallen when he struck her, but in the statement he had admitted that she fell. On the stand he admitted that he had cut up the clothes of Miss Folk's visitor, but in the statement he denied having done so. His testimony was that after he struck her she went to the bathroom and he then merely helped her as she walked from there back to her bed, whereas in the statement he said that he had carried her from the bathroom to the...