United States v. Yeager

Decision Date02 January 1968
Docket NumberNo. 16128.,16128.
Citation395 F.2d 245
PartiesUNITED STATES of America ex rel. Edgar H. SMITH, Appellant, v. Howard YEAGER, Warden, New Jersey State Prison at Trenton.
CourtU.S. Court of Appeals — Third Circuit

Stephen F. Lichtenstein, Lichtenstein & Levy, Trenton, N. J., for appellant.

Harold N. Springstead, Asst. Pros., of Bergen County, Hackensack, N. J., (Guy W. Calissi, Bergen County Pros., Hackensack, N. J., on the brief), for and of Counsel with plaintiff-respondent, Howard Yeager, Warden, New Jersey State Prison at Trenton.

Before STALEY, Chief Judge, BIGGS and HASTIE, Circuit Judges.

PER CURIAM.

This is an appeal from the denial of appellant's writ of habeas corpus by the United States District Court for the District of New Jersey. This court fully considered all the points now raised by appellant on the occasion of his first appeal to this court, United States ex rel. Smith v. State of New Jersey, 322 F.2d 810 (C.A.3, 1963), and we consider that opinion dispositive.

Appellant, however, urges that his rights must now be considered in the light of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The short answer to this contention is that the entire court considered this proposition on the first appeal. Townsend v. Sain was decided after the argument on Smith's first appeal, but before the case was decided and before the denial of Smith's petition for rehearing en banc by the majority of the entire court. Indeed, one of Smith's bases for requesting rehearing en banc was that Townsend v. Sain required this court to remand the case for a plenary hearing, and Smith's petition recites that "When Townsend v. Sain was decided, after the oral argument of this case, counsel advised this court by letter that appellant would rely on that case with regard to his right to a full hearing." Thus both the original panel and the entire court considered the application of Townsend v. Sain to this case on the first appeal.

Moreover, it is clear that Townsend v. Sain is simply not relevant to this case now, nor was it on the first appeal because Smith was offered an evidentiary hearing on the first petition for a writ in the district court, and he rejected the offer. The record of this proceeding shows that the district court was very concerned that the record before it be full and complete and that Smith have every opportunity to put in the record all that he thought essential:

THE COURT: "Let me say this. There may have been some misunderstanding on our last discussion, but it was my thought, and I think I initiated the idea that I didn\'t want counsel on the side of the defendant, or the side of the state or anybody involved in this case feeling dissatisfied with the state of the record; that I wanted this record to be as complete as you thought it should be. * * * I just wanted everybody to be satisfied that they had, so far as they were concerned, this record in complete form so that here and later and wherever you may go, whoever takes the initiative of going from here to somewhere else would not be called upon to argue that this is incomplete and this matter really hasn\'t been heard as yet."

Later on in the same proceedings, Smith's then-attorney stated:

"The United States Supreme Court says your Honor may hold a hearing de novo if need be to go into the historical facts behind this case. I don\'t think it is necessary here. I think if your Honor limits himself to the record, I think that the error, the fundamental constitutional error in this case is so overwhelming that I need not stand here and argue this case at any great length.
"Now, if we understand each other, so there will be no mistake about it, we rely solely and wholly upon this amendment and supplemental petition your Honor now has before you with the exceptions that I noted at my last appearance of Exhibit C attached to the original petition, which is the excerpts of the statutes. * * * With that addition, I say we rely solely upon this amended and supplemental petition. * * *" (Emphasis supplied.)

Thus there can be no doubt that the district court offered, and Smith's counsel rejected, an evidentiary hearing.

The order of the district court will be affirmed.

BIGGS, Circuit Judge (dissenting).

On consideration of the facts of the case at bar and what I deem to be the applicable law I must respectfully dissent.

STATEMENT OF FACTS

The relator-appellant Smith, convicted of murder in the first degree and sentenced to death, for the second time in this court seeks release by a federal writ of habeas corpus. A brief history of the protracted litigations involving Smith is set out below.1 These litigations will be referred to at greater length hereinafter.

A fifteen year old girl, Vickie Zielinski, was brutally murdered under circumstances which tended heavily to incriminate Smith. Her body was found about 9:20 A.M. on March 5, 1957, in a deserted area known as the "Sand Pit" in Bergen County. About 11:30 P.M. on March 5, police arrested Smith on information supplied by Gilroy who had loaned an automobile to Smith. On the night of March 5, Smith went to bed at 7 P.M., but at 7:30 P.M. his wife wanted to visit her mother's house in Ridgewood. Smith went to bed again at approximately 10 P.M. at the Ridgewood house and soon fell asleep. He was awakened by the police and taken to the police headquarters in the Township of Mahwah. The record shows that Smith had no sleep from about 8:30 A.M. on the morning of March 5 until about 3:45 P.M. on March 6, 1957, a period of about 31 hours with the exception of perhaps an hour and a half on March 5. About 10 A.M. on March 6 he broke down, cried, and asked for a Catholic priest. At this time the police had possession of the car that Smith used on the night of the crime which contained a bloodstained mat. The police also had obtained Smith's shoes and socks worn by him on the night of the murder and an admission from him that he was at the scene of the crime with Zielinski and also that he had given her "a good shot", a strong blow. Smith was not informed of his right to remain silent, of his right to counsel, or that anything he said might be used against him. I will discuss Smith's allegations as to his treatment by the police at a later point in this opinion. See note 12, infra. Smith was not formally charged with murder at the time of this interrogation but it is clear that he was vehemently suspected.

In Smith's statement, as transcribed, appear many incriminating facts. Although he did not categorically admit that he had killed Zielinski his statement in substance constituted a confession. Shortly thereafter he was indicted on a charge of first degree murder. About 5 days after the interrogation and after indictment, deLisle, a police detective, came to Smith in jail and asked him to sign a transcript of his statement, some 39 pages in length, which the reporter had transcribed from his notes. Smith had employed counsel at some date not clear from the record but prior to deLisle's visit. Smith refused to sign the transcript, informing deLisle that his counsel had advised him not to do so. deLisle asked Smith to read the statement, however, and later drew from him an admission of its correctness. Under the law of New Jersey it is unnecessary that an accused sign a confession to make it valid, only that he read it and acknowledge its correctness. State v. Cleveland, 6 N.J. 316, 327-330, 78 A.2d 560, 565-567, 23 A.L.R. 2d 907 (1951). Smith testified at his trial that he was not mistreated. Issues relating to the voluntariness of Smith's statement and his admission of its correctness will be dealt with at greater length at a later point in this opinion.

Smith was found guilty of first degree murder and since there was no recommendation of life-imprisonment he was sentenced to death as required by the law of New Jersey. An appeal was taken from the judgment of conviction to the Supreme Court of New Jersey, which affirmed. State v. Smith, 27 N.J. 433, 142 A.2d 890 (1958). Smith made no immediate application for certiorari, but moved for a new trial principally on the ground of newly discovered evidence.2 His motion was denied and the denial was affirmed by the Supreme Court of New Jersey, 29 N.J. 561, 150 A.2d 769 (1959). Smith then petitioned for certiorari which was denied. Smith v. New Jersey, 361 U.S. 861, 80 S.Ct. 120, 4 L.Ed.2d 103 (1959). Smith next sought habeas corpus in the court below. The writ was denied him. 201 F.Supp. 272 (1962).

The court below, Judge Lane, wrote an exhaustive opinion, dividing Smith's arguments into three main groups, "I. Issues Not Raised in the State Courts", "II. Issues Raised in the State Courts", and "III. Issues Raised in Part in the State Courts". Judge Lane described Smith's contention by setting out twelve categories, as follows: (1) an accumulation, combination and aggregation of errors in the State Court, allegedly constituting a denial of due process; (2) the assertion that the State should produce a tape recording of a "truth serum", a sodium amytal, test that had been administered to Smith; (3) a contention that Smith was unlawfully arrested; (4) that Smith was not given the opportunity to object to the trial court's charge before the jury retired; (5) that after the rape-murder theory of the case advanced by the State was declared by the trial judge to be insufficiently supported by the evidence, there was no adequate charge to remove this issue from consideration by the jury;3 (6) that Smith's trial counsel was inadequate; (7) that a new trial was improperly denied; (8) that the charge of the trial court on the issue of the voluntary nature of Smith's admissions was fundamental error; (9) that the admissions of Smith, in substance constituting a confession were involuntary; (10) that the judge did not allow the jury to consider the alleged non-voluntary nature of...

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7 cases
  • Curry v. Wilson, 22030.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 31, 1969
    ...for the Third Circuit held that his attorney had waived petitioner's right to an evidentiary hearing in the 1961 proceeding. 395 F.2d 245, 246-247 (3d Cir. 1968). The Supreme Court reversed, stating: "It is at least doubtful whether petitioner could have obtained an evidentiary hearing as t......
  • United States ex rel. Smith v. Yeager, Civ. No. 766-65.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • May 13, 1971
    ...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 the......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 29, 1969
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    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 30, 1969
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