United States v. State of New Jersey

• Decision Date: 18 January 1962
• Docket Number: 1028-59.,Civ. A. No. 1027-59
• Citation: 201 F. Supp. 272
• Parties: UNITED STATES of America ex rel. Edgar SMITH, Relator, v. STATE of NEW JERSEY and the Principal Keeper of the State Prison at Trenton, New Jersey, Respondents.
• Court: U.S. District Court — District of New Jersey

201 F. Supp. 272

UNITED STATES of America ex rel. Edgar SMITH, Relator, v. STATE of NEW JERSEY and the Principal Keeper of the State Prison at Trenton, New Jersey, Respondents.

Civ. A. Nos. 1027-59, 1028-59.

United States District Court D. New Jersey.

January 18, 1962.

William Richter, New York Bar, New York City, for relator; Robert W. Hicks, Washington, D. C. Bar, of counsel.

Guy W. Calissi, Bergen County Pros., Hackensack, N. J., William C. Brudnick, Sp. Asst. Pros., Hackensack, N. J., for respondents.

LANE, District Judge.

Petitioner Edgar Smith was convicted of murder in the first degree in the Bergen County Court. As the jury rendered its verdict without a recommendation for life imprisonment, the mandatory death sentence followed. On appeal to the New Jersey Supreme Court, a unanimous court affirmed the conviction. State v. Smith, 27 N.J. 433, 142 A.2d 890 (1958). Petitioner subsequently filed a motion with the trial court for a new trial. The motion was denied. Again, the New Jersey Supreme Court unanimously affirmed the action of the lower court. State v. Smith, 29 N.J. 561, 150 A.2d 769 (1959). Certiorari to the Supreme Court of the United States was applied for and denied. Smith v. New Jersey, 361 U.S. 861, 80 S.Ct. 120, 4 L.Ed.2d 103 (1959).

Petitioner, Edgar Smith, presently confined at the New Jersey State Prison, now seeks a writ of habeas corpus under 28 U.S.C. § 2254. The application was originally made on November 19, 1959, to the United States District Court before the late Judge Morrill. On November 23, 1959, the court stayed execution and issued an order to show cause to the State of New Jersey why petitioner should not be permitted to amend his applications and for such other relief as might be proper, returnable November 30, 1959. The court heard oral argument and ordered the production of (1) the transcript of the trial; (2) the transcript of the hearing on the motion for a new trial; (3) the briefs and appendices on the first appeal, the second appeal, and the petition for certiorari to the United States Supreme Court. The court requested counsel for petitioner and for the State each provide a document entitled "Designation of Record" wherein there was to be annotated with reference to the record the claims and crossclaims of each side. Counsel furnished these documents. On March 30, 1961, the petition was reassigned. On May 5, 1961, this court permitted the filing of an amended petition, and on June 5, 1961, heard oral argument.

Petitioner has raised numerous legal grounds which he alleges entitle him to the Great Writ. He has brought some of these to the attention of the New Jersey state courts in the original trial or on the motion for a new trial. The state courts have been unable to rule upon many of the other grounds as petitioner argued them for the first time when he sought certiorari to the United States Supreme Court from the denial of a motion for a new trial and in the petition presently before this court.

An examination of the record shows that petitioner raised the following points in his first appeal to the New Jersey Supreme Court:

(1) The admission of enlarged color photographs and transparencies was both improper and prejudicial;

(2) The charge was erroneous because the trial judge (a) incorrectly stated the law as to the length of time necessary for premeditation; (b) did not properly charge that the jury could find reasonable doubt due to lack of evidence; (c) did not properly distinguish between first and second degree murder; (d) limited his charge as to the testimony of the time of the actual killing to the credibility of the doctor and not as to the whereabouts of the defendant;

(3) The polling of the jury was improper;

(4) Exhibit S-84 was erroneously admitted into evidence as a confession because (a) its acknowledgment was improper; (b) the defendant did not know the cause of death and condition of the body of the victim when he allegedly confessed; and,

(5) The verdict was the result of passion, prejudice, and partiality because (a) evidence was introduced as to the condition of the victim's body, and the blood on petitioner's clothes; (b) the color photographs and transparencies were introduced; (c) comments of the prosecutor and judge were improper.

The New Jersey Supreme Court rejected petitioner's arguments, and on its own motion found the confession to be properly admitted on "all conceivable legal grounds." State v. Smith, 27 N.J. 433, 142 A.2d 890 (1958). Smith failed to seek certiorari to the United States Supreme Court.

Petitioner thereafter moved for a new trial on new grounds. The trial court denied the motion and petitioner appealed to the New Jersey Supreme Court raising the following points:

(1) Dr. Gilady should be subpoenaed to resolve any doubt existing as to the time of the killing;

(2) The alibi of D. H. is now questionable because newly-discovered evidence would discredit D. H.'s testimony;

(3) It was error to take testimony on the motion for a new trial without the presence of petitioner;

(4) It was error to charge the petitioner with the burden of proof on the motion for a new trial;

(5) It was error to restrain the cross-examination of witness Wastog by petitioner's attorney at the hearing on the motion for a new trial.

The New Jersey Supreme Court again affirmed the lower court's decision denying all of petitioner's contentions. State v. Smith, 29 N.J. 561, 150 A.2d 769 (1959). From this decision, defendant petitioned the United States Supreme Court for certiorari, raising the following points:

(1) The confession was involuntary;

(2) Defendant was not given a fair and impartial trial;

(3) Defendant was inadequately represented by counsel;

(4) The trial court did not properly charge all degrees of homicide and, in particular, manslaughter;

(5) Defendant was not present at the hearing on the motion for a new trial.

The Supreme Court denied certiorari. Smith v. N.J., 361 U.S. 861, 80 S.Ct. 120, 4 L.Ed.2d 103 (1959).

In the amended petition filed in this court, petitioner has raised a great number of issues. It is most difficult to determine from the relator's petition exactly what his points are. Viewing the petition most favorably to the relator, we have succeeded in dividing his arguments into the following twelve categories:

1. An accumulation, combination and aggravation of errors in the state court constitutes a denial of due process.

2. The State should produce the tape recording of a truth serum test that had been administered to petitioner.

3. Petitioner was unlawfully arrested.

4. Exceptions should have been taken to the trial court's charge before and not after the jury retired.

5. The sex-murder theory of the case was abandoned without a proper instruction to the jury.

6. Petitioner's counsel at the trial level was inadequate.

7. A new trial was improperly denied.

8. The charge of the trial court on the question of the confession was fundamentally wrong.

9. The confession of the petitioner was involuntary.

10. The judge did not allow the jury to reconsider the voluntary nature of the confession after he had determined that it was voluntary.

11. The trial court was fundamentally wrong in its failure to charge lawfully and properly on the relator's defenses.

12. The charge of the trial court was erroneous in that the judge failed to charge all degrees of homicide, including manslaughter.

I.

ISSUES NOT RAISED IN THE STATE COURTS.

Categories 1-8.

Petitioner has neglected to present his constitutional contentions on Categories 1 through 8 of the twelve arguments he wishes to advance before this court in either his original appeal to the New Jersey Supreme Court or in his motion for a new trial and its subsequent appeal. Moreover, an examination of the record reflects that the petitioner, Edgar Smith, has failed to take advantage of the New Jersey habeas corpus statute, N.J.S.A. 2A:67-1, wherein he might have offered argument on these eight points. Instead of exhausting his state remedies on these eight issues, petitioner has for the first time raised these issues for consideration in this court.

Section 2254 of Title 28 United States Code, provides:

"An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

"An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."

Accordingly, affirmative relief must be withheld from a state prisoner until he has exhausted the remedies available in the state courts. Section 2254 requires this as a matter of national policy when the United States District Court exercises its power to entertain and dispose of a petition for habeas corpus. Where the State provides a procedure such as habeas corpus for determining the federal question, and it is available to the petitioner, the District Court will proscribe itself from being the first to decide that question. Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944). The dual system of government in the United States requires that the State has the first opportunity to decide such issues when persons under the State's process raise them. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 (1950). For the reason that the petitioner has failed to disclose the exhaustion of his state remedies or the existence of such circumstances that would render the state corrective process as ineffective on eight of the...