Brief in Opposition to Petition for A Writ of Certiorari — Smith v. Yeager

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toh

UPREME COURT. U. &

IN THE .

Supreme Court of the chy Sate c

OcTosER Term, 1968 |

No. 399

2 POS WERE ERLT NINE ESF AE IORIOY 13 .

EDGAR H. SMITH, JR.,

> Petitioner,

BPE Y OOO

.

° Vs.

Cpr am

ORTON | 7 MELT ARNT OY LOE IRE OE GP

‘ , -

HOWARD’ YEAGER, WARDEN,

| Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW JERSEY

f Guy W. Catiss1,

_ Bergen County Prosecutor,

Attorney for and of Counsel with

Plaintiff-Respondent, The ptate

of New Jersey,

Court House,.

> Hackensack, New Jersey.

Haron N. Sprincsreap,

Assistant Prosecutor,

On the Brief.

Adams Press Corp., 11 Commerce Street, Newark, N. J.—Market 3-8611-12

-

TABLE OF CONTENTS

. r | :

I-gRererence TO > -Orricm Reports (OF Orrxtons

‘DELIVERED IN THE CouRT BELow beeches Oz ae dee 1

eS - T—Couwrm- STATEMENT ConcgrNine JURISDICTION. 1

i I1l—Counten-Quksrions PRESENTED............ Pe oe

Inrropuctory STATEMENT. ~..... ears aint ns aire m cee

CounTER- STATEMENT OF THE Case.’ SRST rey si, 3

” A. Procedural History ey erey eee Rete 3

B. Petitioner’ s Involyement and Subsequent De-

tention ....... _ fe a ey sereeeeeee XQ OT)

| C. ‘Post-Indictment Interview. ...%0..20.N... ce 7

| ARGUMENT: | ee : .

Point I—The hist of Massiah v. wnited

‘States, assuming arguende its application 40 a

1957 trial, should -not invalidate cians |

conviction coeen sade eeetcane ea Cusecennas sede 12

Point’ ‘II—Assuming arguendo the “factual ap.

plicability of Massiah v. United States, that

doctrine should not*be applied retroactively to

x

ee Te rete + 5

‘ Point 11I—Voluntarin ingss of petitioner’s state-

ment was dete in the trial court and an

adequate record was presented for both State

i and Federal court review...........-. ands 18

ty ?

f »

ii TABLE OF CONTENTS

. PAGE

_ Powt I V—The issue of voluntariness has been

- properly decided in*both State and Federal

courts apg this Court should again refuse re-

°

_ view of the eee eekes » tes Yoo eres

ConcLusion seteees SR Ee le PRO: 28

Cases Cited -

- Columbe v. Connecticut, 367 U. S: 568 (1961) On ae 25

Davis v. North Carolina, 384 U. S. 737 (1966) sere «26, 27

- Escobedo v. State of Illinois, 378 U. S 478, 84S. Ct. ©

- 1758, 12 L. Ed. 977 (1964) Pid hk 6a a4 wR RE 7, 15

Guanes v.. Colorado, 870 U. 8. 49. (1962) ea tha tatu 25

Gideon v. Wainwright, 372 U. S. 335 (1963)......... ° 17.

~ “Greenwald v. Wisconsin, 390 U. S. 519 (1968)..... ae

" Haley v. Ohio, 332 U. S. §96 (1948)......... es 24, 25

Johnson v. State of New Jersey, 384 U. S. 719 (1966) 7,18 |

> Linkletter v. Walker, 381 U, S. 618 (1965)..........17,18

Sule ¥. v. Beto, 363 F. 2d 503 (5th Cir. 1966)...... a ae

Mapp v. Ohio, 367 U.S. 643 (1961)........-..0064. 17

" Maésiah v. United States, 377 U. S. 201 (1964) .2, 7 ,12, 15-18

McLeod v. Ohio, 381 U. S. 356 (1965)......... Na ae

Romano v. Fay, 360 F. 2d 389 (Cir. Ct. 1966) Ne Gah 15

‘Smith v. NewJersey, 361 U. S. 861. (1959).......... 4

Smith v. New Jersey, 376 U. S. 928 (1964).......... 5

’ Smith v. New Jersey, 379 U. S. 1005°(1965)..... Sank 6

Smith v. New J ersey, 380 U. S. 938 (1965).... arenes % 6

ee oe

~

Ne CNIS Fone tem LS —

=m

Lr TABLE OF CONTENTS et

; " PAGE

- Spano v. New York, 60 U. 8.315 (1965). Le i.

“State y. BindhammeM™44°N. J. 372, 209 A. 2d 1240

NE coche css a eee +++118,14

State v. Cleveland, 6N. J. 316, = A. 0d 560 (1951) .. 13

State v. Rios, 17 N. J. 572, 112 A. ad 247 Tn

State v. Smith, 27 N, J. 433, 142 A. 9d Bs 34

State v. Smith, 29 N. J. 561, 150 A. 2d 769 (1959)..... 3,4

’ State v. Smith, 43 N. J. 67, 202 A. 24 696 (1964)... 6

ee Townsend v. Sain, 372 U. 8.293 (1963).:........... 18

United States ex rel. Smith v, New Jersey, 201 F.

# Supp. 272 (D.C. N. J. 1962)........ kaa cane ae 4°

United States ex rel. Smith v. New J ersey, 322 F.

PEG Wel Oe. THIN oss oss ec ceedecdenases 5,22,24

Rule Cited oe |

‘New Jersey, Criminal Practice Rule’ ag SORE an

Speenaie ae = Authorities Cited :

Annotation: - Re sige pr

Admissibility of Guaead 93 A. 7 2d 919,

* 924 » (1962) beaee MEER G h e S anere bea ee

II Defender Newsletter No. 5 (1965)...... cae 20

Cu

Eo, nae In oo | |

“Supreme Cguet of the Muited States |

.OctosER Term, 1968 >

Ye Se ay

© ~ me

» No. 399

Ss

—

Epear H. SMItTH, JR.,

ey. : Petitioner,

_ os Bi en er ie

’- Howarp YzaGER, WARDEN, - __ hes etn

Respondent.» |.

a>.

_—

BRIEF IN OPPOSITION. ‘TO. PETITION,

FOR. WRIT OF CERTIORARI TO THE

_ SUPREME COURT bagi NEW JERSEY —

vr

: s oe

i noe I | ‘

y e ad - .

;

4 -

Reference to Official Reports of Opinions

x . Delivered in the fourt Below

%

The petitioner’ . reference to the opinions below i is cor-

rect. a

%

wee.

Counter-Statement Concerning Jurisdiction '

Tepis submitted that the decison of the United States

Court .of Appeals, entered on J eats 2, 1968, (P25a) was

an

’ / -

“a

in no way repagnent to the Cosatitutien of? the United

_ States and the Court did not decide, -any Federal’ issue or - -

question not heretofore determined by this Court or in any

-way contrary to the applicable decisions. of this Court.

-Counter-Questions Presented .

= e a

1. Whether a post-indictment explanation by a defendant

who has retained counsel that his ‘stenographic state- -

. ment was “accurate” constitutes a violation of Massiah

awe United States, 377 U.S. 201 (1964) (assuming .argu-

endo it-is to be applied retroactively) where the -

-stenographic statement could have been introduced ‘in-

to evidence regardRss of the defendant’s description of

. “accuraey”? |

2. Whether the Massiah doctrine, assuming its applicabil-

ity in the instant case, ‘s to be given retrospective ap-

plication to.a 1957 decision where the guilt determining

process was in no way affected by the alleged ‘‘admis-

f sion’’?

»,

3. Whether a hearing in the Federal Courts is required on

the voluntariness of a 1957 “confession” when a full *:

hearing was heldby. the trial judge and retained coun-

sel expressly rejected the opportunity for a hearing in

the- United States District Court? gen

4, Whether this Court ‘aa grant review to consider the

voluntariness of a ‘‘confession’’ where the precise‘issue

_has been decided on numerous occasions in both State

and Federal Courts and this Court has declined to hear

the issue three times in the past? |

.

3

Sa aE Statement’

Prior to stating his*case, petiitioner conveniently intre- ;

duces his legal arguments by a claim that ‘substantial

_ doubts have been raised as to his; guilt.’’-(Pb3). Authority

for this pronouncement.is based upon a magazine article

which i is reproduced i in his appemdix (P27a to P68a).

In reply to this reference of ‘‘serious public doubt”, |

. respondent asks this Court to mote well the words. of the

_ New Jersey Supreme Court in their second. review of thé,

case: ;

~ “We have re-examined tthe original regord, as well

as the earlier opinion, amd find no basis whatever

for withdrawing from or qualifying our determina-

‘tion that the evidence was devastatingly. convincing

of the deféndant’s guilt.’” State v. Smith, 29 N. J.

561, 575, 150 A. 2d 769 (1959). 7

It is insinhitely sabealtind that a 1 magazine article based .

upon self-serving inaccuracies amd untruths can in no way

be abated fe what occurred at trial.

“Counter-Statement of the Case

A. Procedural History

PotitfOner i is presently incarcerated under a Death sen-

tence imposed after his conviction for first degree murder

on May 28, 1967 (T..977-25 to 30).* His.conviction was

affirmed on direct appeal to-the New Jersey Supreme

* Court.on June 25, 1958. State vw. Smith, 27 N. J. 433, 142

- A. 2d 890 (1958). Among the numerous trial errors con-

sidered in that appeal, the court considered the propriety

of the admission of pelrnent's written statement into

” T.—(refers to trial transcript).

4

evidence.* id. 27 N. J..at 449-460, 142 A. 2d at 898-950. The

court in disposing of-the admissibility issue considered the

. written statement ‘‘as though its introduction had been op-

posed upon every conceivable legal ground.’’. id’ at 458, . |

142 A. 2d at 904. Concluding that there was no error ‘in: *-

_ the admission of the written statement, the court upheld

that trial judge who found: it ta be a confession which had

been voluntarily given (T. 545-1 to 10). This conclusion

was reached after holding an evidentiary hearing which

several witnesses, including the petitioner, testified. How-

- ever, petitioner’ s retained counsel while conceding that

the statement was voluntary - (T. 53230 to 35; T. 535-26)

objected to the admission ‘of the document on the grounds

that it was not really a confession (T. 545-25 to T. 546-18).

Petitioner .then moved for a new trial chiefly on the’ _

‘grounds of newly. discovered evidence. * The trial vourt’s

_-denial was affirmed by the New Jersey Supreme Court on |

May. 4, 1959. State v. Smith, 29 N. J. 561, 150 A. 2d 769

: (1959). The United States Supreme Court denied certi- .

orari on October 19, 1959. Smith v. New’ Jersey, 361 U.S.

oe 861 (1959). The points presented _ to the court at that time

were: (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. See, United

States ex rel. Smith v. New Jersey, 201 F.-Supp: 272, 274

(D. C. N. J. ny. Petitioner next sought habeas corpus

* At trial, petitioner’s attorney considered it a statement and

not’ confession (T.525-526). In his present brief, petitionér

refers to. the statement as a, ‘‘Q. and A.’’; respondent elects to .

use the terms ‘‘written statemen ”” and ‘“stenographic statement’’

——

5

relief i in the Federal District Court alleging numerous 5 trial

errors. id. at 272. At the hearing before District Judge

Lane, petitioner was represented by his’ trial counsel,

John E. Selser and William, Richter of the New York,

. both of whom were retained (Al2la).* Since most of the

. points raised had not been considered by the New Jersey

Courts, the United States Distriet-Court only considered.

those previously detérmined under State procedure. id. at

275-276. Judge Lane concluded, inter alia, that*petitioner’s

confession was given voluntarily. id. at- 281

are United States Court of Appeals for the Third Circuit

: _ affirmed the District Court’s denial of: the Petition for

| beas corpus on July 24, 1963. United States ex rel.

Smith v. New Jersey, 322 F. 2d 810 (3rd Cir: 1963) (One

judge dissenting). That Court again concluded that the

confession was made voluntarily. id. at 816-817. {The peti-.

tion for rehgaring before the Court, en banc; was denied: in:

a five to two decision on September 9, 1963. Certiorari was

again denied’ by the United States Supreme Court on Feb-

ruary 17, 1964, Smith v. New Jersey; 376 U. S. 928 (1964)

(JusticePouglas voted to grant certiorari).** | :

* A-a (refers to petitioner's appendix submitted to the United

States Court of Appeals for wl Third Circuit).

a7 The issues presented to the court at that time ane

toy a) \Whether the Petitioner’ s rights under th Four-

teenth Akgendment of the United States Constivfion ave

been violatéd by the admission into’ evidence in\a State

prosecution of.a capital case of a conféssion obtained from

him before he had been arraigned, aftér a thirteen hour

and twenty minute: period\ of prolonged, massive incom-

municado interrogation, after te police had obtained more

. (Footnote continued on following page)

. »

Petitioner then sought Post-Conviction , Relief under

New Jersey Criminal] Practice Rule 3:10 A- 1 et séq. rais-

ing the issues not considered Ly the United States District

Court as well as additional ones supplied by himself and

counsel. ‘The tria) zourt’s denial was again affirmed by

the New Jersey Supreme Court: on July 7, 1964, State v.

| Smith, 43 N. J. 67, 202 A. 2d 696 (1964). |

_ The petition for: certiorari .was -again denied by the

-United States Supreme Court on February 1, 1960. Smith

v. New Jersey, 379 W. S. 1005 (1965) as was his petition

for rehearing on March 8, 1965. Smith v. New Jersey,

al we B. 938 - = - Atfother petition for relief was de-

(Reotnote contimed from preceding page)

an sufftcient evidence to charge him with stein and

without advising him of his right to counsel and right to

rémain silent; (2) Whether the admission into evidence of

Petitioper’s confession violated his rights under the: Sixth

and Fourteenth Amendmets of the United States Consti-

tution where his verbal acknowledgement of the accuracy

of the confession, which was all that was necessary under

New Jersey to qualify it, was obtained by the police, while ~

’ Petitioner was in jail and in the absence of his counsek-

safter Petitioner had been arraigned and indicted and after

he had advised the police ‘that his attorney had told him

not to sign the confession; (3) Whether, in view of the

silence of the record of Petitioner’s trial as to material and .

essential elements of his detention and the failure of thé-

trial court to inquire‘ds to these elements, the United States

District Court should have held a ‘plenary hearing with

regard to these circumstances before determining ~Peti-

tioner’s application for a writ of habeas corpus; (4)

Whether the failure of the State trial court to hold a full

preliminary hearing prior to ruling on the. voluntary na-

| ‘ture of Petitioner’s confession was a violation of Peti-

tioner’s rights under the “Fourteenth Amendment. of the

United States Constitution.’’ \

nied by the trial court on March 29, .1965; the New Jersey

Supreme Court denied leave to appeal on April 13, 1965

and denied. a petition for reconsideration on June 22, 1965.

Petitioner filed ‘again for habeas~corpus relief in the

United States District Court on July 7, 1965 (A3a to A27a) .

. raising numerous points*including that thd ‘holdings of

Escobedo, Massiah and Russo must be given ‘retroactive

application.” Subsequent to this Court’s decision in John-

‘son v. State of New Jersey, 384 U. S. 719 (1966) the Dis-

trict Court denied retroactive aplication to any of the doc-: -

trines. advanced. After a denial of application for recon-

sideration petitioner appealed to the United States court

of appeals which affirmed on May 4, 1967 (one judge dis-

senting) (Pla). The petition for rehearing was denied

on March 15, 1968 (one judge dissenting) (P2la).

Petitioner seeks review by this Court in his fourth’ peti-

tion for ies, | 9

B. Petitioner’ 8 Involvement and Siemens: Detention

A fifteen year old Ramsey, New Jersey, school girl, Vic-

toria Zielinski, was found brutally murdered in Mabwah

(an adjoining town) on the morning of March 5, 1957. (T.

244-37 to T. 245-26). ‘. ,

'* The Medical Examiner testified that the girl’s body showed a

“*total loss of brain’’-and ‘‘her left eye was totally destroyed and

all that was left of it was the sack, collapsed. | in the orbit of the

eye’s pocket.’’ Her ‘‘lower jaw and upper’ jaw had multiple

fractures. Her teeth, most-of them were loose in her mouth and

those that were left were just hanging from ‘the gums and there

was blood of course, from the nose, which was fractured in two

or three places, and bleeding from the mouth . . . She had four

or five distin¢t small bruises; lentil size, bluish in color, around

her right nipple in the areola area . . . and it appeared to this

examiner as being bites, teeth bites.’’ (T. 511-21 to 38).

™

AY

During the evering of March 5, 1967 one of the peti-

tioner’s friends, J oseph Gilroy, told the Ramsey Police -

that he had found suspicious stains on the seat and floor

of his car which he had lent to petitioner aad previous

evening (T. 383-10 to 34).

After inspecting Gilroy’s car at about 10:45 P.M. that

evening, Detective Graber and Investigator Garabedian

fnom the oP County eleanor adi Office, along with

During the general satiate, ctdauley by Assistant

Prosecutor Galda—-Captain DeMarco noticed that petition-

er’s left hand was lacerated (T. 476-21 to 26). Smith

stated that he hurt it-while repairing a tail pipe (T. 476-

28 to 30). Examination of petitioner’s knees revealed la- --

cerations, contusions and scratches (T. 476-31 to 38) which

he explained had happened when he fell out of the car

after becoming ill the previous night (T. 476-38 to T. 477-

7). Petitioner stated that he had vomited over his pants

-and shoes which he was wearing (T. 424-25); that he had

thrown them away and would show the officer where: they

were (T. 477-8 to 18). Petitioner accompanied Galda and

three police officers to a place in Ramsey where he pointed

out a garbage can where he had thrown away his shoes

(T. 420-25; T. 477-20 -to 30).: After retrieving the shoes

(later found to be stained with blood), the group drove

to the sand pit where petitioner pointed out the area

where he said he vomited (T. 423; T.-478): “A large light

9

was used by the police during the search, but nothing was

developed (T. 423; T. 478). From/there the group went

to petitioner's trailer to obtain som#\clothing he had worn

the night before (T. 423-35). While at the trailer, peti-

tioner stated that the jacket he had worn the night be-

fore was at his mother-in-law’s home in Ridgewood (T.

423-36 to 40) and had been recently washed (T. 4243).

They then drove to the place where petitioner said he had

thrown his pants af.er being sick on them (T. 42423

to 37; T. 480-10 to 21). They searched the area until

about 3:00 A.M. without success (T. 434-14). On the re-

turn trip to Mahwah, they searched another area where

petitioner said he had first been sick—again without suc-

cess (T. 425- 13 to 20).

After arriving at Mahwah Police Headquarters about

3:30 A.M. a detective went to Ridgewood to pick up peti-

tioner’s jacket (T. 425-25; T. 496-36). At headquarters

there was further conversation with regard to ‘the cloth-

ing petitioner wore on the previous night (T. 480) and

there was some discussion as to the possibility of again

Igoking for the pants (T. 481). At this time petitioner

was seated in the back of the room with Gilroy and an-

other person (T. 481-30; T. 482-16). Petitioner then ad-

vised the officers that he could explain about any blood

which might be found on his shots retrieved previously

(T. 481-32 to T. 482-11).- Coffee and buns were brought

in for everyone including petitioner, the police and some

of the other fellows also being —- (T. 482-12 to

17).

a) ff

Between 3:00 A.M. and 3:45 A.M. the officers and peti-.

tioner again went out to look for the place he vomited and

whepe he threw his pants (T. 497-14 to.19). Petitioner as-

sisted infhe search by pointing out the area where he al-

legedly had thrown up (T. 280 to T. 281; T. 497-20 to 28)

ee

> 10

to T. 498-10), again without succegs. The group then re-

turned to headquarters, arriving there “quite late” (T.

498-33).

Around 5:00 A.M. arrangements were made to have pe-

titioner examined by Dr. Gilady ‘with respect to his knee

injuries (T. 482-18). Accordingly, the examination was

scheduled between 7:30 A.M. to 8:00 A.M. (T. 482-24).

Petitioner, Detective Sinatra and Captain DeMarco then

drove to the latter’s home (T. 482-32). There Captain

DeMarco gave Detective Sinatra some money with the in-

structions that he and petitioner have some breakfast

prior to the visit to Dr. Gilady’s office (T. 482-33 to 37).

Petitioner testified that he ate two eggs and a cup of

coffee ‘(T. 452). After breakfast petitioner and Detec- .

tive Sinatra returned to Captain DeMarco’s home and the

three drove to Dr. Gilady’s office (T. 482-40); the exam;

ination was conducted at 7:55 A.M. (T. 510-12). The ©

doctor found petitioner alert and.in- normal. health (T.

510-37 to 40); his pulse and respiration were normal

(T. 511-3).

After the examination the thew went to the Prosecu-

tor’s. Dffice (T. 483-33 to 39). There, Captain DeMarco

eallea a photographer to take pictures. of petitioner’s

- knees and hand (T. 484-3 to 8). About this time the Pros-

ecutor’s office was informed that the pants had been found,

stained with blood, as were a pair of socks in the pock

(T. 499-14; T. 601-22; T. 502-15). Fingernail scrapings

and ‘a hair sample were then taken from petitioner 2.

- 485-5). .

After pictures of petitioner.were taken, Detectives de-

Lisle and Spahr questioned him at about 10:00 A.M. as to |

his activities on the night of the murder (T. 519-9 to 12).

Detective deLisle asked petitioner, “What did the girl do

and where he threw his pants jt to 20; T. 497-40.

11

to -you?” and he responded, “She hit me.” (T. 519-20 to

22). He then asked petitioner, “Where did she hit you?”

and he answered, “In the face.” (T. 519-23). Thereupon, -

petitioner started crying (T. 519-24). He asked for a

drink of water and a cigarette, which were given to him |

(T. 519-25 to 27). Petitioner then asked to speak to a

certain priest that he knew in Don Bosco High School

(T. 519-29 to 30); the priest was called (T. 485-14).

Prior to the arrival of the priest and after petitioner

was more composed, he told the detectives of his meeting

with Victoria Zielinski (T. 518-30). About forty-five min-

utes later the priest arrived (T. 520-4 to 10) and con-

ferred with petitioner for approximately a half hour (T.

751-33). Petitioner then gave the Prosecutor a full state-

‘ment, stenographically recorded under oath (T. 527-29 to.

35). The statement commenced at 12:50. P.M. on March

6th (T. 551-33) and was continued at the vicinity of the

~erime (T. 531-26 to 30). The statement was concluded at

3:45 P.M. and covered thirty-nine pages (T. 393-20). Peti-

tioner was then brought to Mahwah for arraignment (T.

. 489-26), arriving there at 4:05 P.M. (T. 593-22); he was

arraigned at about 7:00 P.M. that evening. :

r 4

C. Post-Indictment Interview

After the written statement givea ‘ia petitioner: had

been prepared in stenograpbic form, Detéctive deLisle .

visited petitioner in the Bergen County Jail on Mareh 11,

1957, for the purpose of having him read and sign it

(T. 521-7). At this time, petitioner was under indict-

ment and had retained counsel. After reading the state-

ment for about 35 minutes, the petitioner refused to sign

it on the advice of his lawyer (T. 521-10). Detective de-

Lisle then asked petitioner if the statement was accurate ,

and petitioner said, “yes, it was accurate”. aa — al

12

In addition, petitioner “commented on how accurate it

was and it was amazing that the court stenographer could

take down with such,accuracy such a statement.” (T. 521- ©

18 to 20) “

It is this conversation whieh petitioner. now claims vio-

lates Massiah v. United States, 377 U..S..201 (1964). It

is respondent’s: position that the Massiah doctrine has

not been violated even by today’s standards, that.no preju-

dice accrued to the petitioner, and that in no event should

_ the Massiah doctrine be given retroactive —-

ARGUMENT

POINT. 1

The doctrine of Massidh v. United States, assum- _

ing arguendo its, application to a 1957 trial, ‘should

not invalidate petitioner’ 8 conviction.

” Petitioner socks to..apply the’ doctrine of Massiah. v.

United States, ‘377 U. S. 201 (1964) to his conversation

to a Prosecutor’s detective (Pb12). Subsequent -to the

indictment of petitioner and retentidn of counsel, Detec-

ative deLisle visited him in the Bergen County Jail for

the purpose of having him readsand sign his written

. statement which had ‘just been typed from the —

phic notes (T. 521-7). s

» Petitioner read-the: statement for about thirty-five min-

utes but ‘refused to-sign it on the advice of his lawyer

(T. 52117) ). As noted above, he admitted that the state-

ment was accurate and commented that “it was amazing

that the court stenographer could-take down with such

$ LR oS

13

- aecuracy such a statement.” (T. 521-15) This comment as to

accuracy was neither an admission of guilt nor was it a rep-

resentation as to the truthfulness of the written statement.

Petitioner merely stated in effect that the stenographer

had accurately recorded what was in fact said.* Peti-

tioner argues that the statement would never have been

admitted into evidence at trial except for this admission

of accuracy, citing State v. Cleveland, 6 N. J. 316, 327-30, .

_ 78 A. 2d 560 (1951). It is submitted that regardless of

the “accuracy” comment by petitioner, the written state-

ment would: have been admissible in New Jersey in 1957

just. as it would be in 1968. See Anno.: Admissibility

», of Confession, 23 AJL. R. 2d 919, 924 (1952).

In Stain < v.. Bindhammer, 44 N. J. 372, 209 A. 2d 124

(1965) the State offered a transcript of the defendant’s

_ statement at trial. Since it had not been read and signed

by the defendant at the time of its taking, the trial court

decided it should not be admitted into evidence based.

upon the holding in State v. Cleveland, supra. However,

the court permitted the reporter who had transcribed the

confession to testify orally from his shorthand notes in

accordance with State v. Ris, 17 N. J. 572, 112 A. 2d

247 (1955). Om appeal, Bindhammer claimed that the re-

_ porter “should have been compelled to testify merely from

his memory and should have been permitted to refer to

his shorthand notes (or his transcript thereof) only to

the extent necessary to refresh his present recollection.”

44 .N. J. at 385.

* Petitioner testified at trial that he never made any reference

to the accuracy of his written statement to Detective deLisle

(T. 675-5). However, his affidavit of March 22, -1965 stated, ‘‘I

did make some representations as te the ‘confession’ s accuracy’ nas

(A50a).

The

14

Court in rejecting the contention advised:

“Documents may, of course, freely be referred to

for the purpose of refreshing or reviving present

‘recollection. See Zimmer v. Westinghouse Elec-

tric Corp., 26 N. J. 339, 350-351 (1958). Where the

_. recollection was recorded at. the time of the event;

_or when it: was fairly fresh in mind (McCormick, -

‘Evidence, § 277, at p. 591 (1954) its record will .

generally be more accurate and trustworthy than

present recollection of “greater or less vividness.”

3 Wigmore, Evidence, § 738, at p. 76 (3d ed. 1940).

If the circumstances are appropriate, the record.

may become a competent witness within the evi- —

dential doctrine referred to as ‘past recollection re-

131.

corded, ’ a doctrine long recognized in our State as

well as elsewhere. See Kazanjian v. Atlas Novelty

Co., 34 N. J. Super. 362, 369-372 (App. Div. 1955).”

(Emphasis added.) 44 N. J. at 385-386, 209 A. 2d at

Thus, *the New Jersey Supreme Court has clearly an-

nounced what the law is with regard to receiving docu-

. ments

in- evidence on the basis of “past recollection re-

corded”. Therefore, regardless of, petitioner’s “admission

of accuracy”, his written statement - a. have been ‘ad-

; mitted at trial in 1957.

In addition,. the “admission of accuracy” did not con-

stitute a representation that his statement was truthful.

Therefore, no prejudice could have accrued to the aol

tioner

at trial.

QR ite at PR ire tote 6 eR TERE se Ae

. er the use of post-indictment statements made to a po-

45

“POINT IIL.

Assuming magne the tential’ applicability of

Massiah v. United States, that doctrine should not be

applied retroactively to a 1957 conviction.

Assuming, arguendo, that the actions of Detective de-

Lisle in bringing petitioner’s statement to him after the

indictment -and retention of counsel would in some way

be violative of the Massiah doctrine, there is no reason

for this Court to set aside petitioner’s 1957 conviction.

Petitioner’s theory that Massiah should be given retro-

active application is based principally upon McLeod -v.

Ohio, 381 U..S. 356 (1965).- That case, however, was a

direct appeal and .not a collateral attack upon a-°1957

conviction. It is submitted that the proper disposition

-of the issue was accorded in Romano vy. Fay, 360 F. 2d —

389 (Cir. 1966). In that case, the precise issue was wheth-

lice officer required reversal of his 1953 conviction, and

the Court properly held:

. the only infirmity in Romano’s questioning

and subsequent trial was an inconsistency with two

Supreme Court decisions handed down more than

ten years later, Massiah v. United States, 377 U. S.

201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), and

Escobedo v.- State of Illinois, 378 U. S. 478, 84

S. Ct. 1758, 12 L. Ed, 977 (1964), and that those

‘decisions should not be retrospectively applied to

void Romano’s conviction.” 360: F. 2d at 391.

‘The Court considered the underlying Teasong for the

Escobedo and Massiah doctrines stating:

“In our opinion, the most important factor in

our decision is an assessment of the purposes of

@

ee ee

ee ee

the Escobedo and Massiah doctrines and the effect.

_of retroactive application upon the achievement of

those purposes. In assessing the ‘complex of val-

~ues’ underlying these decisions, the inquiry must

be focused on whether the new doctrine was aimed

at correcting influences that ‘infect a criminal pro-

éeeding with the clear danger of convicting the in-

nocent.’ Tehan v. United States ex rel. Shott, 883

U. S. 406, 86 8. Ct. 459.” id. at 394, —

The Court distinguished the evils iabeeiat i in the use ‘of

coerced coafessions frony Massiah:

“But these fone’ dangers are not present when

the defendant is questioned by the police. To be

sure, the defendant is often at a tactical disadvan-

tage in the ‘battle of wits’ between a skilled inter-

rogator and one who attempts to obscure oP con-

ceal his guilt.."But the confessions or admissions

that are obtained through normal and noncoercive

-. poliae questioning are-not unreliable and the search ‘

for truth is not hampered: by their admission dur-

ing a trial at which the defendant is represented

by counsel. Thus, we find the Sixth Amendment’

arguments for retroactive application of the .Mas-

siah and Escobedo far weaker than the oe

which led us to apply Gideon retroactively.’ ” ad.

395. ;

'. _ In considering the retroactive application of Massiah

* to a 1961 conviction, the Court of Appeals in Lyles ‘v.

Beto, 363 F. 2d 503 (5th Cir. 1966) advised:

“We have reconsidered this case in light of Mas- ~

_ siah and in light of Malloy v. Hogan, 378 U. S. 1,

84 S. CE. 1489, 12 L. Ed. 2d 653.. We’ conclude that .

.

, i

= ee ee ee “ ‘as

the opinion of .the Supreme Court in Johnson and

Cassidy, Petitioners V. State of New Jersey, 1966,

834° U. S. 719, 86S. Ct..1772, 16 L. Ed. 2d 882,

rules this case. . The trifl in this case began long

-before.June 13, 1966, the cut off date now an-

nounced by the Supreme Court for the application

. of the requirement of Miranda v. Arizona, 384 U. S.

- 436,.86.S. Ct. 1602, 16 L. Ed. 2d 694.” eat SE.

504.

It is submitted that the same reasons for denying retro:

‘activity to the exclusiondry rule announced in Mapp v.

Ohio, 367 U. S. 643 (1961) by Linkletter v. Walker, 381

U. S. 618 (1969) should apply to the Massiah doctrine

as well. In Jinkletter, this Court advised:

. there are interests in. the edieinioteation of

sae and the. integrity of the judicial process to

consider. To - the rule of Mapp retrospective

would tax the administration of justice to. the ut-

most. Hearings would have to be -held on the ex- .

cludability of evidence long since destroyed, mis- _

. placed or deteriorated. If it is excluded, the wit-

nesses available at the time. of the original trial

- will not be available or if lacated their memory

will be dimmed. To thus legitimate such an extra-

ordinary procedural weapon that has no bearing on

guilt would seriously disrupt the administration of

justice. id. 381. U. S. at 637, 638. (emphasis

added. )” elite,’ &

This Court further noted in nim where the decisions

applied retrospectively (e.g. Gideon v: Wamwright, 372

U. SS. 335 (1963) ) that: ;

. in each of the three s areas in which we have

swiplie our rule retrospectively the principle that

18

we applied went to the fairness of the trial—the

_ very integrity of the fact-finding process.” Link-

‘letter v. Walker, supra, 381 U. S. at 639.

It is submitted that the guilt determining process was

in no way affected’in the instant case and therefore retro-

active affect to the Massiah doctrine should be denied.

See Johnson-v. New Jersey, 384 U. S. 719 (1966).

POINT 110”

Voluntariness of petitioner’s statement ‘was deter-

mined in the trial court and an adequate record was

presented for both State and Federal court review.

. . ~

Petitioner’s retained counsel conceded at trial that his’

statement given to the officials of the. Bergen County

Prosecutor’s Office was voluntary (T. 532-30 to 35; T.

. 535-36). However, since he objected to its introduction

into evidence on other grounds, the trial court took tes-

timony on the issue of voluntariness (T. 537-27). Peti-

tioner now seeks a hearing based upon Townsend v..Sain,

372 U. S. 293 (1963) (Pb18) to question the voluntari-

ness of his statement after relying upon the record de-*

veloped by the trial court. On May 15, 1961, District

Court Judge Lane asked petitioner’s retained counsel if

the record, which was before him for the first time, was

deficient in any respect. - —:

“. . . 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 insofar as you gentlemen are

concerned to be as complete as you thought it should

~ 19

be. ... I am not talking about the merits. I just

wanted, everybody to be satisfied that they had, so

far as they were concerned, the record in complete

form so that here and later and wherever you may

go, whoever tukes the initiative of going from here

to somewhere else would not be called upon to ar-

gue that this is incomplete and this matter really

hasn’t been heard as yet.” (A122a to Al123a)

Petitioner’s retained counsel rejected the offer of Judge

Lane and argued the issue of voluntariness based upon

the record (A129a to A149a). In fact, counsel stated that :

“The United States Supreme Court says your

Honor may hold a hearing de novo if need be to

go into the historical facts behind the case. f don’t

think it is necessary here.

“T think if your Honor limits himself to the rec-

ord... .” (A130a) (Emphasis added.)

Petitioner claims that despite the above that he did not

waive his right.to a hearing and cannot be bound by the

actions of his counsel because it was not his considered

- choice (Pb23). It should be noted that a hearing is dis-

cretionary and that petitioner has no inherent right to

a plenary evidentiary hearing. Here he retained compe-

tent counsel to represent him and must be bound by their

actions. Could petitioner insist on being present at any

dnd all oral arguments of his numerous appeals? Should

he not be bound by this very petition which is submitted

to this Court? It is submitted that any such notion: that

- he must expressly waive any legal points or arguments ~

which he feels should be submitted to a court after an

adverse decision would be an impossible imposition upon

orderly legal process:in the United States.

wire

20

It is submitted that a full hearing on the voluntariness,

of petitioner’s statement was afforded to him in the trial

. court, rejected in the, Federal District Court, and should

be denied to him by this Court.

POINT IV

The issue of voluntariness has been properly de- 7

cided in both State and Federal courts and this Court

should again refuse review of the i issue.

The issue of voluntariness of witthionae’s written state-

“ment has been justly and fairly determined in both Fed-

“eral and State Courts. Indeed, this Court has refused

_ to review the issue three times previously. Petitioner:

raises the issue in two areas of his petition. The first

is in his “statement of the case” where, unencumbered by

references to the record, he claims that “through the

night and morning, there followed more than thirteen

hours of interrogation and other police strategies de-

signed to elicit the Q. and A..statement.” (Pb4-5). The

facts show that petitioner was first interviewed at 11:30

pm. on March 5th (T. 419-420) and at about 10 a.m.

on the morning of March 6th admitted hitting the victim

_ (T. 519)... At that time he started crying (T. 519-24) and

asked to speak to a priest he knew from Don Bosco High

School. Thus, some 10% hours after the first interview

with petitioner a priest was summoned at his request.

Was his one-half hour conference with his priest (T. 751-

33), one of the “police strategies designed to obtain the

Q. and A. statement’?

Petitioner in a modified version of a chart prepared

by the Defender Newsletter, Vol. II, No. 5 (1965) seeks to

fall within the ambit of those cases by showing similari-

ties. It is submitted that the facts shown by the record

and petitioner’s use of the chart are irreconcilable.

F the

‘Contrary to this picture of “involuntariness” related by

petitioner, the record shows that he (1) was alert and had

sufficient rest; (2) had sufficient food; (3) wasn’t con-

tinually questioned or harassed; (4) that no promise or

threats were made to him by the police or prosecutors. -

Initially it :should be noted that when petitioner com-

mitted the crime he was 23 years old, had a wife and.

daughter, and was formerly a member of the United

States Marines (T. 775-T. 776). The first time the mat-

ter was before the United States Court of Appeals that |

Court considered the contention that petitioner suffered

from a lack of sleep.

“The night of the sania i he was in bed by 10:00

P.M. He listened to four rounds of the Gil Turner-:

Ruby Given prize fight. He said, ‘I laid in bed lis-

tening to Gil Turner knock him out in the fourth

round and went to sleep.’ A round is of three min-

utes duration with one minute rest intervals. Three

rounds and part of a fourth would not total fif- |

teen minutes. The fight would take a few minutes

to get under way. Reasonably it was over before

10:30 P.M. He got out of bed the next morning

‘* * * about 8:30.’ .So he had apparently an ex-

cellent night’s rest. The next evening he was in

bed by seven o’clock. He rose a half hour later

and took his wife and baby to his mother-in-law’s.

He went to bed there and was in bed for two hours

before the police woke him at 11:30 P.M. From.

that time through his arraignment there is nothing

to indicate in Smith any condition of exhaustion or

fatigue.” 322 F. 2d at 813.

In addition, there was téstimony that petitioner was

“all right in every way” (T. 543-37); “in good shape”;

“his mind seemed to be clear”, and “he seemed to be wide

awake.” (T. 517-5 to 7).-

22

As to petitioner’s claim of having insufficient food* the

Court of Appeals concluded:

“Somewhere around 3:00 A.M. when clearly for

the first time anyone concerned was having some-

thing to eat and drink, i.e., buns and coffee, Smith

was included. He had more coffee after that. And

about 7:30 that morning or earlier he had his break-

fast... . It is not contradicted that before start-

ing his statement Smith was asked if he wanted -

‘* * * some coffee or anything?’ He asked for cof-

_ fee and the answer was ‘Surely’; that when he was

more than half way through-his statement. he was

asked ‘Would you like some more coffee or any-- —

thing?” (Emphasis supplied), which offer he did —

not accept; that a little while after that he was

again asked ‘would you like some coffee and rest

for a few minutes—something to eat?’ (Emphasis

supplied) The offer of coffee and food was not

accepted but that of a rest was and a short re-

cess was taken. Right after the arraignment, Smith

went to restaurant with the Prosecutor where they

had something to eat. Smith said ‘After I ate I

felt fine’.” 322 F. 2d at 814.

Petitioner’s contention that he was interrogated in re-

lays of police officials during the 13 hour period prior to

* Petitioner claims that during a 35 hour period he had only

two eggs and cups of coffee. At trial he stated: ‘‘The only .

thing I had eaten for a period of; I would say, almost twenty-

- four hours was two eggs, a cup of coffee in the diner and a con-

' tainer of coffee in Mahwah and another container in the Prosecu-

tor’s Office.’ (T542-6 to 11). Compare this with his affidavit

(A100a-11) and brief in the Court of Appeals (Abl1; Abl12).

See also statement by counsel . (T489-37).

ra =

23

giving his statement (Pb5) is without foundation in the

record. He.admitted that Mr. Galda questioned him at

about midnight .and then “on and off, not continually. ae

(T. 540-34). Most of the time was spent: not in question-

ing petitioner but in searching -for his shoes and pants

and the places he ‘supposedly vomited (T. 541-20); wait-

ing with others who were being questioned (T. 481-30; T.

482-16); eating (T..482-12 to 17; T. 482-33 to 37); be.

ing examined by Dr. Gilady (T. 510-40) ; having pictures

taken of his knees and hand (T. 484-3 to. 8); and speak-

ing to a priest that he requested (T. 751-18 to 30).

Petitioner’s other complaint, made‘ at the hearing on

the voluntariness of his confession was that he “had been

cold all night”. (T. 542-7). Presumably this reference is

to the two to three hour period which he stated was the

total time that he spent outdoors (T. 541-17 to 22). The

Court of Appeals, in reviewing the record supporting the

contention, advised:

“Some mention is made of Smith not having an

outside jacket on while he was going with -the po-:

lice to the various places connected with his story.

He was out of doors - altogether at most two or

three hours, The longest he was out at one time

was an hour. He wore a red woolen shirt. He had

an undershirt on, for later he took it- off and it

was marked for identification. At one “stage out-

doors he mentioned it was quite cold and Mr. Galda

gave him his overcoat which he wore from one-half

to three-quarters of an hour. The next morning,

before he was taken to breakfast and to the doc-

tor’s, because he was cold, he was allowed to move

‘into the front seat of the automobile in which he

rode, as he says ‘“ * * so that he (Detective Sina-

tra) could turn the heater on for me * * *.’ There

, —_

_—

24

e *

is evidence indicating that the weather the night

of March 5th was only two degrees colder than that

of the night of March 4th. And while there is tes-

timony: that he had worn a blue jacket on the 4th,

Smith also definitely said that all he had on that

night was-.a shirt.” 322 F. 2d at 814. — 3

The Court then noted the following questions and an-

swers during petitioner’s cross-examination when she de-

seribed the clothing Hommel was wearing the night of ”

murder:

“Q. Well, it was pretty cold that night? <A. It

was.

“Q. And all he had on was a shirt? <A. That is

all that I had on.”

““Q. Just a shirt? And it was a cold night though,

wasn’t it? A. I didn’t think it was too cold.” (T.

783-32 to 40) (Emphasis added.) :

“

Such cases as Haley v. Ohio, 332 U. S. 596 (1948), and

Spano v. New York, 60 U. S. 315 (1965), are clearly dis-

tinguishable on their facts. In Haley the defendant was

a 15-year old boy who was’ questioned in relays of ‘police

from: midnight until 5:00 A.M. The certain coercive ef-

fect of that much interrogation at-night upon a 15-year

old boy, who would be more susceptible to pressures than

an adult, was held sufficient to make his confession involun-

tary. In Spano, the subject had.a history of emotional in-

stability and was “grilled” for more than 8 hours. In hold- |

ing the confession was not voluntary, the Court empha- —

sized the inevital 'e effect of fatigue and the psychological

coercion from a lice friend of his who falsély played’

upon his sympathies.

25

Certainly, there can be no claim that petitioner was a _

child as in Gallegos v. Colorado, 370 U. S. 49. (1962), and

Haley v. Ohio, supra, or an adult with the mental age

of a child as in Columbe v. Connecticut,*367 U. S. 568

(1961). Quite the opposite is true—petitioner was a 23.

year old former Marine; married and quite intelligent.

_’ The only person he ever requested to see Was @ priest

who was called and spent a considerable time with him.

He was never denied counsel and never even handcuffed

(T. 774-19 to 28).

Petitioner’s “confession” itself shows the voluntary na-

ture in which it was given. He was introduced to those *

present (T. 1073-11) and was asked if he would give a

yoluntary statement under oath (T. 1073-15 to 30); he

was asked if he cared for “coffee or anything” (T. 1073-

28).. The questioning was mostly in the narration form

and at the outset he asked:

“A... . Can Task a question here?

Q. Surely. A. Like I explained to you before I

am a little fuzzy on this. As I go along, can I add

on—

Q. Certainly, just as you know the incident as it

actually occurred—and you can interrupt at any

time you want. A. That’s what I want to do—in-

terrupt.” (T. 1073-36) i

During the questioning, no pressure was exerted upon

him. (See T. 1079-12; T. 1088-8; T. 1089-8; T. 1092-25;

T. 1097-18) and a recess was taken when he asked to

go to the men’s room (T. 1086-40 to T. 1087-10). Cof-

fee was offered to him twice (T. 1097-18; T. 1099-29) and

milk was sent for when he — it (T. 1099-36 to

T. 1100-4).

26

Petitioner who now claims his “confession” was the result

of an overborne mind caused by the physical and mental

pressures exerted stated the. exact — during the

course of the statement:

~

«OQ. What wé are going to do now, on the places

you indicated to us, we are going to go to the area.

It will be with: the same people in this room and

we are going in two cars and you can point out

these things you mentioned on the spot. Is 7

agreeable to you? A. Yes.

Q. And while you were in the custody of the po- -

licemén and up at the Mahwah Police Headquarters,

did anybody mistreat you or anything? A. No, sir.

Q. Everybody treat you all right? A. Better ne. :

I expected.

Q. I beg your pardon ? A. Better than am of

Q. Very well. It’s nice to hear.’ ” (T. 1100-13 to

25) a added.)

In his brief to the United States Court of Porm peti-

tioner submitted an affidavit by his former wife. Therein,

she stated that she never called an attorney since she

didn’t think it was necessary (A79-14 to 17). In addi-

tion, she never recalled being asked by petitioner to get

a lawyer (A70a-22 to 26); did not recall anyone telling

‘ her that petitioner didn’t need an attorney (A80a-38 to -

A8la-2); and she did not remember petitioner being ill

prior to being interviewed by the police (A82a-10 to 13).

The instant case sheubh be distinguished from Davis v.

North Carolina, 384 U. S. 737 (1966). There, Davis was

incarcerated for sixteen days on another charge and con-

tinuously questioned with regard to a murder. The poor

food, the constant questioning, his claimed request and

denial of counsel, a notation by police that no one was

27

allowed to see him, his being an impoverished negro with

a third or fourth grade education and the use of a prayer

by the interrogator were some of the factors comprising

the “totality of cireumstances” showing the involuntari-

ness of his confession. The facts, as disclosed by the trial

transcript do not bear the slightest resemblance to Davis

‘vy. Morth Carolina, supra. It is submitted that there is

not the slightest indication that the petitioner’s admission,

based on the “totality of the circumstances” was coerced. +

Indeed, the record shows that it was the product of his

own free will. ;

Petitioner relies principally upon Greenwald v. Wiscon- |

sin, 390 U. S. 519 (1968): In that case Greenwald, who -

had a ninth grade education, wag suffering from high

blood pressure and had been under medication for the

condition at-the time‘ of his arrest shortly before 10:45

P.M. on January 20, 1965. He had last taken food and

‘medication at 4 P.M. the same day. At police head-

quarters he was questioned until midnight and was not

advised of his constitutional rights. He was. booked and

fingerprinted at 2 A.M. and taken to a cell in the city

jail and he was unable to sleep because he was. only given

a “plank” on which to sleep. The following morning.

(8:30 A.M.) he was placed in a line-up and his interro-

gation started again at 8:45 A.M: without the benefit of

breakfast, his medication or food of any kind. He re-

fused to answer questions and when he spoke it was only -

to deny his. guilt. After 10 A.M., the police asked Green- ° -

wald to write out a confession but he refused and re-

quested a lawyer. The police ignored his request and at

about 11 A.M. he made a series of oral admissions result-

ing in a full confession at 11:30 A.M. Greenwald con-

fessed because he knew the police “weren’t going to leave |

me“aléne until I did.” id. at O17.

28

‘

This Court examined the record in order to determine

whether Greenwald’s confession was voluntary. In con-

cluding that the confession was involuntary-this Court ad-

vised,.““We reach this decision . . . with ut) reference: to

disputed testimony taken at the pre-trial hearing: Y at

518.

The present © case bears little resemblance to Greenwald.

Here, petitioner was not under medication, had eaten and

_ did not request a lawyer. Rather, petitioner wps affirma-

tively assisting the police. The police checked out his

version—a process, which could just as easily have excul-

pated petitioner.

It is respectfully submitted that the issue of the volun-

_ tariness of petitioner’s statement has been properly ad- :

judicated by all of the courts of review.

CONCLUSION

For the reasons hereinbefore set forth, it is respect-

sated urged that the Petition for Certiorari be denied.

- Respectfully submitted,

Guy W. Catissi,

Bergen County Prosecutor,

Attorney for and of Counsel with

Plawntiff-Respondent, The State

of New Jersey, and Howard

Yeager, Warden.

Harotp N. SprINGSTEAD,

Assistant Prosecutor,

On. the Brief.