Petition — McDonald v. New Jersey

| Office Supreme Court, U.S.

73% 7 *

)

NO. APR 27 1981

IN THE q

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1980

ROBERT M. MCDONALD,

Petitioner,

-vs-

THE STATE OF NEW JERSEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPERIOR COURT OF NEW JERSEY,

APPELLATE DIVISION

MILTON B. CONFORD

Counsel for Petitioner

Robert M. McDonald

900 Route 9, P.O. Box 10

Woodbridge, N. J. 07095

(201) 636-8000

WILENTZ, GOLDMAN

& SPITZER

A Professional

Corporation

WARREN W. WILENTZ, ESQ.,

Of Counsel

E. JAMES MULLALY, ESQ.,

Of Counsel.

QUESTIONS PRESENTED FOR REVIEW

1. Whether petitioner was denied

liberty without due process of law in

violation of the Fourteenth Amendment to

the United States Constitution because the

State's evidence at trial was insufficient

to permit the jury rationally to find

petitioner guilty of murder beyond a

reasonable doubt.

2. Whether the State's deliberate

elicitation of a prejudicial statement from

petitioner during the course of a murder

investigation which had focused upon

petitioner as the prime suspect, in the

absence of counsel known by the State to

have been retained by petitioner, constituted

an impairment of petitioner's representation

by counsel in violation of the Sixth and

Fourteenth Amendments of the United States

Constitution, when that statement was

introduced into evidence at petitioner's

trial.

3. Whether, when the State purposely

intrudes into an existing attorney-client

relationship, and secures a prejudicial

Statement from a suspect in a criminal

investigation, the State's conduct is

violative of either the right to counsel

under the Sixth and Fourteenth Amendments,

or the right to due process of law under

the Fourteenth Amendment of the United

States Constitution.

4. Whether the submission by the

State of false evidence to the grand jury,

material to the question of the guilt of an

accused, is a denial of the liberty of the

accused without due process of law in

violation of the Fourteenth Amendment of

the United States Constitution, where the

falsity of that evidence becomes known to

the prosecutor prior to the trial on the

indictment returned by the grand jury, and

the prosecutor fails to inform the grand

jury of the falsity of such evidence and

have it reconsider the indictment in the

light of such new information.

aife

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW. .sesevevsees

OPINIONS BELOW ccc cccccccccccceecceeseeeeeee

JURISDICTION..cccccccccccccccccccscccccccece

STATEMENT OF THE CASB ccc ccc cee eeeeeeeeeeens

i

1

1

CONSTITUTIONAL PROVISIONS INVOLVED....e++++ 2

2

3

[A] THE TRIAL. coerce ceccsvececeeversvere

[8B] THE CLOCK-RADIO INTERROGATION.......10

[C] THE GRAND JURY TESTIMONY....+eeeeeee14

ARGUMENT

PETITIONER ADVANCES THE FOLLOWING

REASONS FOR THE ALLOWANCE OF

CERTIORARI

A.

SUBMISSION TO THE JURY OF THE

ISSUE OF APPLICANT'S GUILT

CONSTITUTED A DENIAL OF DUE

PROCESS UNDER THE FOURTEENTH

AMENDMENT BECAUSE OF THE IN-

SUFFICIENCY OF THE EVIDENCE... cceeceeveeel8

THE USE AT TRIAL OF STATEMENTS

DELIBERATELY ELICITED BY THE

STATE FROM PETITIONER IN THE

ABSENCE OF RETAINED COUNSEL

DURING THE COURSE OF A CRIMINAL

INVESTIGATION WAS VIOLATIVE OF

PETITIONER'S SIXTH AND FOUR-

TEENTH AMENDMENTS RIGHT OF

-iii-

Page

COUNSEL, AS WELL AS HIS RIGHT

TO DUE PROCESS OF LAW UNDER

THE FOURTEENTH AMENDMENT... cceeecovseeees20

Le THE RIGHT OF COUNBBLccccccccccceceead

2. DUE PROCESS OF LAWe cccccccccceccceesl

ae WALVEReccccectcocctecoecssoeccescoeoecha

Cc.

THE STATE'S KNOWLEDGE THAT EVI-

DENCE SUBMITTED TO THE GRAND

JURY WAS FALSE REQUIRED, AS A

MATTER OF DUE PROCESS, THAT THE

GRAND JURY BE APPRISED OF THAT

FACT SO THAT IT COLD RECONSIDER

THE TRDICTMENT ccccccccccccccccecccoeseec c&

CONCLUSION o ccoccccceccccceccecceceoeceeoeseel®

APPENDIX

Opinion of Superior Court of

New Jersey, Law DiviSion...cesccseeseseesela

Opinion of Superior Court of

New Jersey, Appellate Division...........8a

Judgment Of CONvVictiOn..cecesseesesssseseesd4a

Order of New Jersey Supreme

Court Denying Petition for

COPEL EOEEOsS ceccccberwactetndéecescvececeaia

Order of Honorable William J.

Brennan, Jr., (Circuit Jus-

tice) Denying Application for

Bail Pending Certiorari....ssecesveeseees 30a

Constitutional Provisions Involved.........39a

-iv-

TABLE OF CASES

Page

Bracy v. United States,

435 U.S. 1301 (1978) cence eeceeeeee ed 90,97

Brady v. Maryland,

373 U.S. 83 CESOs) cocevecesccsescccescede

Brewer v. Williams,

430 U. s. 387, CEO Phccccccecdvccccccsc eddy 46

Cahill v. Rushen,

510 F. Supp. 1219 (E.D.Cal. 1980).......46

Carnley v. Cochran,

369 U.S. 506, (L962) coccvocceccccccccc 048

Costello v. United States,

350 U.S. 359 eget GASES a

Cuyler v. Sullivan,

44 Use 335 CEPOO dp odoccccsccecccvcesd og d4e30

Delk v. Atkinson,

498 F. Supp. 1282 (M.D. Tenn.

DOOD cb web eked s vdccreecccccbceccccceceeaasee

Delk v. State,

Tenn. _r 590 S.W.2d

435 is Saas te nhieu) 6 kb eedeoee cs eane 23

Frink v. State,

ee en Te Che.” OPO). ccestccecc eS

Holloway v. McElroy,

632 F.2d 605 (4th Cir. 1980)...ceeeeeee 23/25

In re Grand Jury Investigation

“Of F Fat Coe Corp., $30 F.Supp. 1108

(S.D W.Va. BOTT Va serebebscesebeboccccsecaty 40

Jackson v. Virginia,

443 U.S. 307 Si) ) err rrr. oe Poe

20,21,24,

25

-YV~=

Page

Johnson v. Superior Court

15 Cal. 3d as. 124 Cal.

Rptr. 32, 539 P.2d 792 (1978) cccccceecesn4

Johnson v. Zerbst,

304 U.S. 458, (19398) cccccccceccceccccc c46

Kirby v. Illinois,

U.S. 682 SS GE Pe | |

Massiah v. United States,

377 U.S. 201 eo pe eS | Oe

31,43,46

Michigan v. Mosley,

U.S. 96 (1 Dicacteccosvseveocecee 044

Miranda v. Arizona,

U.S. 436 PP gitcucduinnhbaseeeekapet

Napue v. Illinois,

U.S. 264 Ph io carey cult see wee

State v. Brown,

80 N.J. 587, 404 A.2d 1111 (1979).....+.8,19

State v. Reese,

91 N.M. 76, 570 P.2d 614

(Ct.App. LOTT) cccccccccccceccccccccescedOgSe

State v. Re es,

oe , 236 A.2d 385 (1967)....+.-8,19

United States v. Basurto,

“497 F.2d 701 (9th Cir. 1974)...600++450,52,56

United States v. Batchelor,

404 F.Supp. 812 (E.D.Pa. 29B0) ccccccccese

United States v. Ciambrone,

601 F.2d 616 (2d Cir. op i res 7

-vi-

Page

United States v. Dionisio,

410 Oime A PiREEEG ocarwats bse bebe ees.cceeee

United States v. Gold,

F.Supp. 1336 (N.D.I11. 1979) ..000++54,55

United States v. Goldman,

F.Supp. 516 (3.D.No¥. 1978) .cccceee50

United States v. Guillette,

547 F.2d 743 T2d Cir. oe) ) A Se

United States v. Henry,

U.s. , 100 S.Ct. 2183,

GS Dict MAE EOE bbc ctwsodnceeeeceelOaae

United States v. Howard,

F.Supp. 1067 (W.D.N.Y. 1977) ..00+++39

United States v. Marion,

404 U.S. 307 MTEL wutéetacdee beceweeekaee

United States v. Morrison,

eee ’ S.Ct. _, 66

L.Bd.2d 564 (1981). .cccccccccccvveceeee36

United States v. Provenzano,

“440 F.Supp. 610 (N.D.Okla. 1977).......54

United States v. Springer,

460 F.2d 1344 (7th Cir. 1972) ..eeeeeee + 38,40

United States v. Thomas,

“474 F.2d 110 (10th Cir. 1973),

cert. den., 412 U.S. 932 (1973) ..ee0e+-38

-vii-

Page

OTHER AUTHORITIES CITED

ABA Standards, The Prosecution

Function, Oe y eee

Kamisar, Brewer v. Williams,

Massiah, and Miranda: What

Is Interrogation? When Does

It Matter?, Geo. Ledel (1978) .eeeeee4 30,33

Note, “Interrogation and the

Sixth Amendrlent: The Case for

Restriction of Capacity to

Waive the Right to Counsel,"

53 Indiana L.Jour. 313 (1978) ...6000002233,45

-viii-

OPINIONS BELOW

The opinion of the Law Division of the

Superior Court of New Jersey on the post-

verdict motions issued on July 2, 1979, is

unreported (App. pp. la, et seg.). The

opinion of the Appellate Division of the

Superior Court of New Jersey, filed December

4, 1980, is unreported (App. pp. 82, et

seq.). The judgment of conviction entered

by the Law Division (App. pp. 34a, et seq.)

and the order of the New Jersey Supreme

Court denying certification (App. p. 37a)

are set forth in this Appendix, as is the

order of the Honorable William J. Brennan,

Jr., (Circuit Justice) denying petitioner's

application for bail pending certiorari

(App. p. 38a).

JURISDICTION

The judgment of the Superior Court of

New Jersey, Appellate Division, was entered

on December 4, 1980, affirming petitioner's

conviction dated July 9, 1979. The Appel-

late Division denied a timely petition for

rehearing on December 29, 1980. Thereafter,

on February 10, 1981, the Supreme Court of

New Jersey denied a petition for certifica-

tion. On March 12, 1981, Justice Brennan

signed an order extending the time for

filing this petition for certiorari to and

including April 27, 1981.

The jurisdiction of this Court is

invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional provisions involved

are the Fifth, Sixth and Fourteenth Amend-

ments to the United States Constitution.

The text of the constitutional provisions

involved is set forth in the Appendix (App.

pp. 39a, et seqg.).

STATEMENT OF THE CASE

This petition for certiorari is filed

on behalf of Robert M. McDonald to seek

review of a judgment of conviction of the

Appellate Division of the Superior Court of

New Jersey which affirmed the conviction

entered by the Law Division of the Superior

Court of New Jersey. Petitioner was

convicted of the second degree murder of

his wife, for which he has been sentenced

to serve between 12 and 15 years in the New

Jersey State Prison.

[A] THE TRIAL

Petitioner and his wife Doris had been

married some thirty-five years when her

body was discovered in the bedroom of their

home in Middlesex, New Jersey, at about

2:00 p.m. on December 16, 1976 by her

sister, Janet Weinman. Petitioner was at

work in his foundry some distance from the

home at the time of the discovery.

He had left for work at his customary time

of about 4:15 a.m. that morning -- a fact

adequately corroborated. The victim was

scheduled to leave for her own job later

that morning, but was prevented from doing

so by her murder by bullet wounds through

the use of a .32 calibre firearm which has

never been found. Neither petitioner nor

the victim were ever known to possess such

a firearm.

Petitioner admitted in a statement he

voluntarily gave the police on the date of

the murder that he had an intermittent

relationship with a woman residing in

Florida which had given his wife some

concern. He said, however, that he and his

wife were getting along well at the time of

her death, and that they occupied the same

bed the night and morning of the fatal

occurrence. The State at trial expressly

eschewed advancing petitioner's relationship

with the other woman as a motive for the

murder of the victim. Indeed, the State

conceded that it was unable to establish

any motive to show why petitioner would

kill his wife.

There was medical testimony on the

part of the State and on behalf of the

petitioner indicating that death could have

occurred anywhere from 8 to 18 hours prior

to the examination of the body by the

medical examiner at about 5:00 p.m. on

December 16, 1976. Thus, the potential

time frame for the killing was from

11:00 p.m. of the previous evening to 9:00

a.m. of the day of examination of the body.

This meant that the homicide could have

occurred during the almost 5 hours after

petitioner left for work, as well as during

the five hours before.

Aside from evidence derived at the

murder scene, and petitioner's statement to

the police, the only other evidence adduced

by the State was a circumstance occurring

more than two months after the murder.

While cleaning up the bedroom where his

wife's body was found, petitioner discovered

and discarded a clock-radio containing an

apparent bullet hole which went unobserved

during the police investigation. When

interrogated by a detective from the

prosecutor's office about the clock-radio,

petitioner claimed that his son-in-law had

thrown it in the garbage.

Petitioner's presentation at trial

consisted of evidence designed to expose

the weakness of the State's circumstantial

case. The State's theory that his wife was

dead before she ever had the chance to go

to bed was undermined by the fact that the

bed on which she was found had apparently

been slept in. Testimony from a daughter

established that Doris McDonald would not

remove her jewelry when she went to bed,

would sleep in her undergarments, and would

not pull up the shades when she awoke in

the mornings because of extreme modesty.

The police investigation revealed the

presence of human blood and fibrous material

in fingernail scrapings taken from the

victim, which would suggest that she

struggled with her assailant. This evidence

did not correspond with any scratches on

petitioner's person, or rips in his clothing.

There was testimony by a neighbor who heard

an automobile loudly accelerating away from

the front of petitioner's home at 6:00

a.m., almost two hours after petitioner

left the home. The locks on the doors and

windows in the home were shown to be

insecure, making an entry without breaking

easily accomplished. A neighbor who

habitually stayed awake through the early

morning hours, and who would periodically

surveil the neighborhood, noticed no

unusual lights on at the McDonald home, and

heard no gunshots.

Petitioner elected not to testify at

his trial. However, petitioner did introduce

unimpeached evidence of his peaceable

character at the trial, to demonstrate the

unlikelihood of his committing the brutal

crime charged. The jury also heard that

petitioner had undergone major surgery for

cancer several months before his wife's

death, and had arranged for the increase of

group life insurance on his life payable to

his wife.

Petitioner moved for an acquittal as a

matter of law at the end of the State's

case, at the end of the petitioner's case

and by motion for a judgment of acquittal

notwithstanding the verdict. Each of these

motions addressed the issue of the insuffi-

ciency of the evidence to permit a reasonable

jury to find the accused guilty of the

charge beyond a reasonable doubt. In

applying that standard the New Jersey

courts require giving the State the

benefit of all its favorable testimony as

well as all the favorable inferences which

could reasonably be drawn therefrom.

State v. Reyes, 50 N.J. 454, 459, 236 A.2d

385 (1967). This standard of sufficiency

of the evidence is essentially the same

as that declared in Jackson v. Virginia,

443 U.S. 307 (1979), as requisite to

sustain the validity of a state criminal

verdict under the due process clause of the

Fourteenth Amendment. See State v. Brown,

80 N.J. 587, 591, 404 A.2d 1111 (1979).

Although Jackson v. Virginia, supra,

was not cited to the New Jersey courts in

the instant case, the decision having been

4

rendered after the trial and not having

come to the attention of trial counsel when

the appeal was presented to the Appellate

Division, the constitutional point should

be entertained as a matter of substantial

justice, and, if necessary, as plain error.

Petitioner did at trial and on appeal

assert the failure of the evidence to

attain the required degree of sufficiency

under a rule of law substantively identical

with that required to assure a due process

conviction. If an appraisal of the evidence

by a federal court establishes that the

Jackson standard was not met, justice

demands that relief would be afforded on

the federal constitutional ground of due

process notwithstanding it was not articu-

lated in the state courts eo nomine. As to

the independent obligation of a federal

court to appraise the sufficiency of the

evidence for the foregoing purpose, see

Jackson, supra, 443 U.S. at 318.

{B] THE CLOCK-RADIO INTERROGATION

Soon after the discovery of his wife's

body in the marital home, petitioner became

the chief suspect and focus of investi-

gatory efforts being made by the Middlesex

County Prosecutor's Office into the death

of Doris McDonald. Conscious of this aura

of suspicion, petitioner within several

days of his wife's death contacted an

attorney, present counsel for the defendant,

seeking legal advice and representation

during the ongoing investigation. Peti-

tioner's attorney immediately contacted the

county prosecutor, and advised him that he

had undertaken the representation of

petitioner.

More than two months after Doris

McDonald's death, Detective Joseph Zimmer-

man, a member of the Prosecutor's staff

assigned to the investigation, received a

telephone call from a son-in-law of

petitioner relating that a clock-radio with

an apparent bullethole in it had been

discovered during the course of cleaning

and removing furniture from the bedroom

where Doris' body was found. The son-in-

law, who had his attention called to this

apparent bullethole by petitioner, reported

to Detective Zimmerman that petitioner had

stated that he was going to throw the

clock-radio out. The detective arranged to

have petitioner's garbage seized from the

front of his home on the following morning,

and therein was found the clock-radio

which, upon disassembly and inspection,

revealed a spent bullet fired from a .32

caliber handgun.

Shortly after retrieving the clock-

radio, Detective Zimmerman, knowing that

petitioner was represented by counsel,

showed up unannounced at petitioner's place

of employment and requested to speak with

him. Rather than burden the proceedings by

reciting the entire Miranda* litany prior

to questioning, the detective simply

* Miranda v. Arizona, 384 U.S. 436 (1966).

@l1l-

informed petitioner that he need not answer

any questions. Petitioner was then asked

whether he knew anything about a clock-radio,

and he answered by stating that his son-in-

law threw the clock-radio out in the

garbage.

At the trial, the statements made by

petitioner to the detective were admitted

to evidence his consciousness of guilt,

and to show that he had lied during the

course of the State's investigation. The

petitioner, through counsel, timely objected

to the introduction of these statements as

violative of his Sixth Amendment right to

counsel and his constitutional right to due

process of law. Following a pretrial

hearing at which both Detective Zimmerman

and the petitioner testified concerning the

clock-radio interrogation, defense counsel

sought to exclude the statements from

evidence, arguing:

DEFENSE COUNSEL: Whether you

want to consider it a Sixth

Amendment violation, a due

-12-

process violation, or simply

a matter of public policy, I

think that the exclusionary

rule has to be applied in

this case. (Trial Trans.

5/1/79: page 14, lines 1

to 4)

The trial judge, finding no prosecu-

torial misconduct of "constitutional

proportion," admitted petitioner's statements

into evidence. On appeal to the Appellate

Division of the Superior Court of New

Jersey, petitioner renewed his argument

that the admission of his statements into

evidence at the trial was constitutionally

objectionable. That court considered and

rejected petitioner's claim, stating in its

opinion:

Nor was defendant denied

counsel during the inter-

rogation. Quite to the

contrary, defendant knew

that he did not have to

answer any questions.

Thus, when he answered he

acted voluntarily. In

these circumstances we do

not see how his Sixth

and Fourteenth Amendment

right to counsel was

infringed. (App. p. 29a)

In seeking certification from the New

~13<

Jersey Supreme Court, petitioner unsuccess-

fully urged that court to accept review to

consider his claim that the admission of

his statements into evidence was constitu-

tionally proscribed.

{C] THE GRAND JURY TESTIMONY

The grand jury that indicted this

petitioner for murder was seriously misled

by the evidence presented by the State

concerning the critical issue as to the

time of death of Doris McDonald. Petitioner

in his statement to the police admitted

that he and his wife were alone in their

home until approximately 4:30 a.m. on

December 16, 1976, when petitioner left for

work. The only issue for resolution was

whether petitioner's wife was alive or

Gead when he left the home. If the State

could show that Doris McDonald died before

4:30 a.m., its case against the petitioner

would be clinched.

The county medical examiner, Dr.

Marvin Shuster, appeared before the Middlesex

-14-

County grand jury and told that body that,

based on the results of an autopsy performed

by him, Doris McDonald had died at 2:00

a.m. on December 16, 1976. When asked

whether that estimate would vary in any

respect, Dr. Shuster said that the time of

death conceivably may have been as late as

5:00 a.m., but that any variation would

more probably favor an earlier time. of

death, i.e., prior to 2:00 a.m. This

testimony clearly and directly undermined

petitioner's assertion that his wife was

alive when he left the home.

The trial jury heard radically different

testimony from Dr. Shuster concerning the

time of death issue. When asked by the

State for his opinion as to the time of

death, the doctor said that Doris McDonald

could have died at any time within a range

from 11:00 p.m. on December 15 to 9:00 a.m.

on December 16, 1976. This testimony

mirrored the opinions of the petitioner's

forensic medical experts (characterized by

-15-

the trial court as "superstar" witnesses),

and was the subject of a post-trial hearing

at which petitioner sought the dismissal of

the indictment on federal due process

grounds

At the post-trial hearing, Dr. Shuster

sought to reconcile his trial and grand

jury testimony. It was his position, and

the State's, that there was no change in

testimony as to time of death. It was

asserted that the medical testimony before

the grand and trial jury circumscribed the

same 10 hour period as the range of time

within which Doris McDonald's death must

have occurred.

It was and is petitioner's position

that the State, long before trial, knew

that the medical examiner would provide

testimony concerning time of death far less

inculpatory than that provided to the grand

jury. Notwithstanding this knowledge, the

State did not notify either counsel for the

petitioner or the court of this anticipated

testimony. Most significantly, the

State chose not to correct the misconceptions

concerning time of death under which the

grand jury that voted to indict was labor-

ing, by re-presenting the matter to another

grand jury.

The alleged due process violation

under the Fourteenth Amendment was fully

raised before, and considered by, the

courts below. At the conclusion of the

State's case at trial, counsel for petitioner

moved to dismiss the indictment based upon

the false testimony adduced before the

grand jury. (Trial Trans. 5/7/79: pp. 26

to 33, passim) At the conclusion of the

trial, petitioner sought and was granted an

evidentiary hearing at which the circum-

stances surrounding the alleged false

testimony, and the prosecutor's knowledge

thereof, were fully developed. (Motion

Trans. 6/28/79) The trial court denied

petitioner's motion for dismissal, (App.

p. la) and the issue was again raised

before the Appellate Division, which

affirmed the ruling of the trial court.

(App. p. 28a)

ARGUMENT

PETITIONER ADVANCES THE FOLLOWING

REASONS FOR THE ALLOWANCE OF

CERTIORARI

A.

SUBMISSION TO THE JURY OF THE ISSUE

OF APPLICANT'S GUILT CONSTITUTED A

DENIAL OF DUE PROCESS UNDER THE

FOURTEENTH AMENDMENT BECAUSE OF THE

INSUFFICIENCY OF THE EVIDENCE

In Jackson v. Virginia, 443 U.S. 307

(1979), this Court established a new

standard of review for federal courts to

use in evaluating the sufficiency of the

evidence supporting a state court conviction.

The precise formulation of the test in

Jackson is that the defendant is entitled

to federal relief “if it is found that upon

the record evidence adduced at the trial no

rational trier of fact could have found

proof of guilt beyond a reasonable doubt".

443 U.S. at 324. The essential identity of

the Jackson test with that employed in New

Jersey is evidence by footnote 12 of the

Jackson opinion wherein it is indicated

that the formulation of the principle there

is not novel, citing a court of appeals

formulation - “whether, taking the view [of

the evidence] most favorable to the Govern-

ment, a reasonably-minded jury could accept

the relevant evidence as adequate and

sufficient to support the conclusion of the

defendant's guilt beyond a reasonable

doubt". (443 U.S. at 319-320); Cf. State

v. Brown, 80 N.J. 587, 404 A.2d 1111

(1979); Stace v. Reyes, 50 N.J. 454, 236

A.2d 385 (1967).

To establish the identity of petitioner

as his wife's murderer, the State constructed

a chain of circumstances from the largely

undisputed evidence at trial which it urged

would allow the jury to draw inferences of

guilt. There was no evidence of a break-in

at the home, and nothing of value appeared

to have been taken. The decedent was

apparently not sexually molested before she

-19-

was shot. The State sought to have the

jury infer that Doris McDonald was shot by

her husband before she ever had the oppor-

tunity to go to bed on the evening of

December 15.

The State proved that petitioner had

an opportunity, but not an exclusive

opportunity, to commit the crime. The

State did not, however, prove a motive.

Nor was there a weapon that could in any

manner be linked to petitioner.

It is submitted that, under the

standard of review articulated by this

Court in Jackson v. Virginia, supra, as a

matter of Fourteenth Amendment due process

of law, the evidence against the petitioner

at the trial in this case was too speculative

and problematical to justify submission of

the issue of his guilt to a jury. The only

arguably substantial evidence of petitioner's

guilt was his presence in the house with

the victim during a period of time in which

she could possibly have been killed;

-20-

whereas she could equally as well have been

killed during a period of time when it was

established incontrovertibly that he

was not in the house with her.

A case strongly supportive of peti-

tioner's position is Delk v. Atkihson, 498

FP. Supp. 1282 (M.D. Tenn. 1980), where the

court on defendant's habeas application

applied the Jackson test in a circumstantial

murder case, and set aside the state court

conviction of defendant on due process

grounds. In Delk v. Atkinson, supra, as in

the present case, the only substantial

connection between the defendant and the

murder of the victim was his presence in

the same place as the victim for a portion

of the time during which the killing could

have taken place,

The murder victim in Delk was a

storekeeper who was slain while alone in

his store. Defendant was seen entering the

store approximately 15 minutes before the

discovery of the storekeeper's body. There

was evidence that defendant may have owed

the victim money, and the relations between

them were not cordial. The only other

evidence involved some papers belonging to

the victim discovered on a highway the day

after the murder, which the State suggested

were taken by the defendant while he was in

the store and discarded by defendant's

brother, who admitted driving on the

highway several hours after the murder, but

denied discarding the papers. Two indivi-

duals who rode with the brother corroborated

his testimony that no papers were thrown

from the vehicle in the area where the

victim's papers had been found.

In Delk v. State, __ Tenn. __, 590

S.W.2d 435 (1979), the Tennessee Supreme

Court concluded that the circumstantial

case against defendant “would support a

finding beyond a reasonable doubt that no

one else could have entered the store, com-

mitted the crime, and left unobserved."

Id., 590 S.W.2d at 442. The district court

-22-

in Delk, following a detailed examination

of the trial evidence, found that there was

a period of time -- albeit less than three

minutes -- when defendant was not in the

store during which the murder may have

occurred. Based on its finding that

defendant's opportunity to commit the crime

was non-exclusive, and based on the insub-

stantial nature of the motive and other

circumstantial evidence, the district court

in Delk concluded that no rational trier of

fact could have found defendant guilty

beyond a reasonable doubt.

Petitioner submits that no rational

fact finder could take the undisputed

circumstantial evidence in his case and,

with confidence in the integrity of the

verdict to be returned, "pile inference on

top of inference" to reach a finding of

guilt beyond a reasonable doubt. Holloway

v. McElroy, 632 F.2d 605, 641 (4th Cir.

1980). Yet this is prescisely what both

the trial court (App. pp. 5 to 7a) and the

-23-

appellate court (App. pp. 2la to 25a) allowed.

The courts below seriously abused the

legitimate inference drawing power reserved

to the jury. Jackson requires that the

evidence at trial be reviewed in the light

most favorable to the prosecution, but

surely does not sanction a power or authority

in the jury to draw unreasonable inferences.

The appellate court, for example, concluded

that the fact that decedent's body was

discovered when petitioner telephoned a

neighbor to check on the anticipated

delivery of appliances permitted an inference

that petitioner was attempting to arrange

for the discovery of his wife's body by a

third party. (App. pp. 24a). That inference

depends for its validity upon a conclusion

that petitioner was guilty of his wife's

murder. It assists not one whit in determin-

ing the underlying issue of petitioner's

guilt or innocence. As so aptly stated in

Delk v. Atkinson, supra, 498 F. Supp. at

1290, that evidence and so much of the

-24-

circumstantial evidence here “provides no

inferences for either side to draw, though

it provides a source of boundless speculation

for the mystery~-minded".

The decision in Jackson v. Virginia,

supra, is relatively recent and the state

courts are uniformly concerned with what

type of evidence-weighing process that

decision will require. This Court's

guidelines -- especially in the difficult

circumstantial evidence cases such as the

instant one -- will be very helpful in

ensuring uniformity of decision-making by

the state appellate courts, since the

Jackson standard is now the minimal

standard of review that the state courts

will be free to employ under the Fourteenth

Amendment. Cf. Holloway v. McElroy, supra.

Such guidelines by this Court would also

assist the federal district courts, which

must contend with federal habeas corpus

petitions alleging violations of Jackson in

the state courts. For these policy reasons,

-25-

as well as the injustice of the result

reached below, petitioner submits that his

case is an appropriate one for this Court's

review.

B.

THE USE AT TRIAL OF STATEMENTS

DELIBERATELY ELICITED BY THE STATE

FROM PETITIONER IN THE ABSENCE OF

RETAINED COUNSEL DURING THE COURSE

OF A CRIMINAL INVESTIGATION WAS

VIOLATIVE OF PETITIONER'S SIXTH

AND FOURTEENTH AMENDMENTS RIGHT OF

COUNSEL, AS WELL AS HIS RIGHT TO DUE

PROCESS OF LAW UNDER THE FOURTEENTH

AMENDMENT

Within hours of the discovery of his

wife's body, petitioner became the prime

focus of the State's investigation as a

suspect in her homicide. Petitioner was

aware of his target status and sought the

protection of retained counsel. The

prosecution knew of petitioner's represented

status when, in March, 1977, Detective

Zimmerman, a member of the Prosecutor's

staff, went to petitioner's foundry for the

purpose of interrogating him about the

clock-radio. Although the detective told

petitioner that he need not answer any

-26-

questions, nothing was said about peti-

tioner's right to seek the advice of

counsel. Petitioner elected to respond to

the detective's questioning.

At trial, Detective Zimmerman related

that petitioner disavowed any responsiblity

for the clock-radio's being found in

the garbage, and that petitioner instead

claimed that his son-in-law had put it

there. The son-in-law testified at trial

that he did not discard the clock-radio,

and that petitioner had stated to him that

he would get rid of the clock-radio by

putting it out with the garbage.

The prejudicial nature of the testimony

concerning the discarding of the clock-radio,

in the light of the entirely tenuous

circumstantial case against petitioner, is

obvious. It is petitioner's contention

that the deliberate elicitation of statements

from him in the absence of counsel known by

the State to have been retained for the

defense of any prosecution arising out of

@27=

the criminal investigation, was violative

of petitoner's Sixth and Fourteenth Amend-

ments right of counsel. In the alter-

native, petitioner contends that the

substantial prejudice to the conduct of his

defense as a result of the prosecution's

intentional circumvention of counsel for

petitioner in conducting the interrogation

was violative of petitioner's Fourteenth

Amendment right to due process of law.

l. THE RIGHT OF COUNSEL

In Massiah v. United States, 377 U.S.

201 (1964), incriminating statements were

purposely and surreptitiously obtained by

the government from an accused under

indictment and represented by counsel by

monitoring his conversations with a

co-defendant acting as an agent of the

government. In reversing a conviction

entered following a trial at which these

incriminating statements were introduced

into evidence, this Court held:

"(T]he petitioner was denied the

-28-

basic protection of...[(the Sixth

Amendment right to counsel] when

there was used against him at his

trial evidence of his own incrimi-

nating words, which federal agents

had deliberately elicited from him

after he had been indicted and in

the mo “ his counsel."

Massiah v. United States, supra,

377 U.S. 20 .

Last term, in United States v. Henry,

U.S. __, 100 S.Ct. 2183, 65 L.Ed.2d 115

(1980), the Court acknowledged that "(t]he

Massiah holding rests squarely on interfer-

ence with [the] right to counsel."

It is petitioner's contention that the

deliberate elicitation of his statements in

the absence of his counsel, known by

the prosecution to have been retained for

the defense of an imminent criminal prosecu-

tion, constitutes interference with the

right to counsel of a degree and kind

calling for the application of Massiah's

exclusionary sanction. The issue posed

here is both timely and important. It is

also, perhaps, a close one. As recently

stated by Professor Kamisar:

Although I deem it clear that

-29-

the “beginning” of a “criminal

prosecution" activates the right

to counsel, regardless of whether

the suspect is represented by

counsel at the time, the converse -

the legal effect of representa~-

tion by counsel when the criminal

prosecution has not yet begun - is

much less clear. But if I am cor-

rect in my belief that the Massiah

doctrine is in no small part a

“symbolic response" to the viola-

tion of the symbol of a fair trial,

then the Court is likely to re-

spond similarly to police inter-

ferences with the attorney-client

relationship. Kamisar, Brewer v.

Williams, Massiah, and Miranda:

What Is interrogation? When Does

# Matter?, @0.L.J. 1,91=

9 °

The position of the respondent in

respect of this point has been that the

right to counsel does not attach until

there has been a formal commencement of

adversarial proceedings in the nature of a

prosecution against the suspect. See Kirby

v. Illinois, 406 U.S. 682 (1972). In

Massiah itself, the Court considered the

fact that the accused was under indictment

when statements were elicited to be signifi-

cant, since that conduct therefore occurred

"at a time when he was clearly entitled to

a lawyer's help." Massiah v. United

States, supra, 377 U.S. at 205. The

existence or non-existence of such a

"critical stage," however, should not

obscure the fact that there was an improper

and prejudicial interference with the

effective exercise of the counseling

function by the prosecution's interrogation

of petitioner in the absence of counsel

known by the State to have been retained in

connection with the criminal investigation

and impending prosecution.

The “critical stage" analysis speaks

to when society must afford a lawyer to an

individual enmeshed in the criminal justice

process, to protect his right to the

effective assistance of counsel at trial.

(See, e.g., Kirby v. Illinois, supra,

holding that a State need not, under the

Sixth and Fourteenth Amendments right to

counsel, make counsel available to a

suspect required to undergo a pre-indictment

lineup.) But neither society nor this

-3l-

Court is being asked here to afford peti-

tioner a lawyer. The request is merely to

allow counsel of petitioner's choice to

represent petitioner's interests in a

criminal investigation (where, as here,

that investigation will foreseeably lead to

a criminal prosecution), unfettered by

purposeful prosecutorial conduct that

undermines that relationship and counsel's

ability to provide his client with his

constitutionally guaranteed right to

effective assistance of counsel at time of

trial.

If this Court, by accepting review,

should consider the basis upon which the

Sixth Amendment right to the effective

assistance of counsel may be incepted

absent the “critical stage" traditionally

associated with the onset of such right,

there are several arguments that may be

advanced. It might be urged, as Professor

Kamisar suggests, that the circumstance of

actual representation prior to the onset of

-32-

a “criminal prosecution" is itself an event

sufficient to trigger the protections of

the Sixth Amendment. Kamisar, supra, 67

Geo.L.J. at 91-92; Note, “Interrogation and

the Sixth Amendment: The case for Restriction

of Capacity to Waive the Right to Counsel,"

53 Indiana L.Jour. 313 (1978). Where such

actual representation exists, the attorney-

client relationship created is of sufficient

dignity and importance to merit constitu-

tional safeguards against its intentional

impairment and destruction by the prosecu-

tion.

There is an additional argument for

extending protection to the petitioner

under the Sixth and Fourteenth Amendments

which emerges from the decision in Cuyler

v. Sullivan, 446 U.S. 335 (1980). In

Cuyler, the Court held that a petitioner's

Claim of ineffective assistance of counsel

by a privately retained lawyer can provide

the basis for federal habeas corpus relief

under the Sixth Amendment. In its opinion,

=@33<

the Court acknowledged that a denial of the

right to counsel may only be established

"upon a showing that the State participated

in the denial” of that right. Id., 446

U.S. at ___, 64 L.Ed. 2d at 343.

The petitioner in Cuyler neither

alleged nor proved that the state officials

knew or should have known of the denial of

his right to the effective assistance of

counsel, which stemmed from petitioner's

claim of a conflict of interest by his

counsel. This Court nevertheless reasoned

that the conduct of retained counsel

involves state action, and held that a

conviction obtained in a trial in which the

defendant's counsel, whether retained or

appointed, is ineffective violates the

Sixth Amendment. The Court concluded:

"Thus, the Sixth Amendment

does more than require the

States to appoint counsel for

indigent defendants. The

right to counsel prevents the

States from conducting trials

at which persons who face in-

carceration must defend them-

selves without adequate legal

-34-

sara, 446 0.8 te

at 344,

Under Cuyler, there is a duty upon the

States not to engage in conduct that

impairs the effective exercise of the right

to counsel. This duty is independent of

the duty imposed upon the States to appoint

counsel, which duty does not arise until a

"critical stage" in the criminal prosecution

has been reached. Petitioner submits that

intentional conduct by the State which

threatens to undermine an existing attorney-

client relationship, and impairs the

effectiveness of counsel, will be struck

down because violative of the duty to

refrain from any action leading to denial

of the effective assistance of counsel.

Under a Cuyler analysis, the Sixth and

Pourteenth Amendment violation alleged here

was not the pre-indictment interview that

resulted in the obtaining of a statement

from petitioner in the absence of his

counsel. Had the State not sought to

introduce this statement against petitioner

at trial, and if petitioner was otherwise

unable to show prejudice, the petitioner

would have been without any remedy to

contest that action in the context of

his criminal trial. See United States v.

Morrison, __ U.S. __» S.Ct. _, 66 L.Ed.2d

564 (1981). Indeed, assuming petitioner

had been under indictment when the interview

with Dectective Zimmerman took place, it is

not even clear whether there would be any

cognizable violation of the constitutional

right to counsel, absent prejudice at time

of trial. See United States v. Morrison,

supra. The altogether tenuous significance

of a "critical stage" having been reached

to the constitutional concern for the

effective assistance of counsel, under the

circumstances of the present case where the

attorney-client relationship predates the

return of an indictment, is readily apparent.

The invocation of a criminal prosecu-

tion marks the point at which the prosecution

must either deal with accused through his

retained or assigned counsel, or obtain a

valid waiver of that right. By imposing

this duty, this Court assuredly did not

intend to license prosecutorial interference

with an existing attorney-client relationship

prior to the inception of the actual

prosecution. Because the issue herein has

yet to be considered by this Court, peti-

tioner would submit that review is appro-

priate and highly desirable.

2. DUE PROCESS OF LAW

If this Court should view the prosecu-

tion's conduct in eliciting statements from

petitioner as falling outside the legitimate

scope of the Sixth Amendment right to

counsel, that conduct may alternatively be

viewed as a violation of the due process

Clause of the Fourteenth Amendment. The

interrogation of petitioner at his foundry

by Detective Zimmerman was an intentional

and purposeful interference with an

existing attorney-client relationship. The

fact that a "criminal prosecution" may

not yet have commenced at the point that

the interrogation was conducted should not

obscure the realizaton that the prosecu-

tion's conduct had an adverse impact on

petitioner's legal position at trial.

The courts below construed the conduct

of the prosecution in eliciting petitioner's

Statement in the absence of counsel as

constituting, at most, an ethical infraction

rather than a denial or impairment of

petitioner's right to counsel. (App. p.

29a) The practice of the prosection in

visiting suspects represented by counsel,

without prior notice to counsel of the

contact to be made, has caused concern for

the lower courts that have had the opportu-

nity to address this problem. See United

States v. Thomas, 474 F.2d 110 (10th Cir.

1973), cert. den., 412 U.S. 932 (1973);

United States v. Springer, 460 F.2d 1344

(7th Cir. 1972) (Stevens, J., dissenting);

United States v. Batchelor, 484 F.Supp.

-38-

812 (E.D.Pa. 1980); In re Grand Jury

Investigation of FMC Corp., 430 F.Supp.

1108 (S.D.W.Va. 1977); United States v.

Howard, 426 F.Supp. 1067 (W.D.N.Y¥. 1977).

Last term, in United States v. Henry,

_. U.S. __, 100 S.Ct. 2183, 65 L.Ed.2d 115

(1980), the Court, in suppressing incriminat-

ing statements deliberately elicited by the

Government from a defendant under indictment,

who may have been represented by counsel

when the elicitation took place, noted:

Although it does not bear on

the constitutional question in

this case, we note that Disci-

plinary Rule 7-104(A)(1) of the

Code of Professional Responsi-

bility provides:

"(A) During the course of his

representation of a client a

lawyer shall not:

"(1) Communicate or cause

another to communicate on the

subject of the representation

with a party he knows to be

represented by a lawyer in

that matter unless he has the

prior consent of the lawyer

representing such other party

or is authorized by law to do

SO.

See also Ethical Consideration

7-18.

United States v. Henry, supra,

eS. at __» 65 ° 2d at

125, n. 14.

-39-

As a general proposition, disciplinary

rules such as the above “are designed to

establish and assure standards of simple

fairness and moral and ethical responsibility

on the part of counsel in furtherance of

the ends of justice." In re FMC Corp.,

supra, 430 F.Supp. at 1110.

In United States v. Springer, supra,

Justice (then Judge) Stevens in dissent

opined that the conduct of government

agents in visiting a defendant represented

by counsel for the purpose of obtaining

incriminating evidence, even where the

defendant subsequently waived his right to

counsel under the Sixth Amendment, violated

due process of law since counsel was not

present and had not received advance notice

of the visit.

In a civil context I would con-

sider this behavior unethical

and unfair. In a criminal

context I regard it as such

a departure from “procedural

regularity” as to violate the

due process clause of the

Fifth Amendment. United States

tise ringer, supra, 460 F.2d at

Petitioner's claimed due process

violation also draws support from this

Court's opinion in United States v. Marion,

404 U.S. 307 (1971). The defendant in

Marion urged that a substantial pre-indict-

ment delay had resulted in a denial of his

Sixth Amendment right to a speedy trial.

The specific holding in Marion was that the

speedy trial guarantee applies only after a

person has been "accused" of crime, and

refused to extend that Sixth Amendment

guarantee to any Government delay which

predated an arrest. However, the Court

accepted the Government's concession that

the Due Process Clause of the Fifth Amend-

ment would require dismissal of an indict-

ment where the pre-indictment delay

"was an intentional device to gain tactical

advantage over the accused," and if that

delay substantially prejudiced the right of

the accused to a fair trial. Marion,

supra, 404 U.S. at 324.

Petitioner has been prejudiced in his

~4l<

defense at trial by the State's intentional

elicitation of statements from him in

the absence of retained counsel. If this

Court finds the circumvention of counsel by

the prosecution to constitute an inten-

tional practice designed to gain an unfair

advantage over a represented criminal

suspect, it should draw upon the Marion

pre-indictment delay analogy and strike

down that practice as violative of peti-

tioner's right to due process of law.

3. WAIVER

The appellate court, while seemingly

finding that petitioner enjoyed a right to

counsel under the Sixth and Fourteenth

Amendments when interrogated by Detective

Zimmerman, went on to hold that this right

was not infringed. (App. p. 29a) The

basis for this holding is that court's

ratification of the trial court finding

that, when petitioner answered the detec-

tive's questions, he did so voluntarily and

thereby waived his right. It is petitioner's

contention that, assuming the waiver

concept is applicable at all under the

circumstances of his encounter with the

detective, there was no waiver.

This Court does not appear to have

definitively resolved whether a waiver of

the right to counsel, once counsel has been

retained, will excuse the prosecutorial

practice of interrogating a suspect in the

absence of his lawyer for the purpose of

deliberately eliciting statements from him.

In Brewer v. Williams, 430 U.S. 387,

405-406 (1977), the Court noted the conflict

on this issue in the Courts of Appeals, and

assumed without deciding that a waiver of

rights under the Sixth and Fourteenth

Amendments was possible under circumstances

otherwise proscribed by Massiah.

If the Court by accepting review is

disposed to consider the issue, petitioner

would urge that waiver is inappropriate

whenever a suspect that the State knows is

represented by counsel is subjected to

interrogation for the purpose of deliberately

eliciting statements from him in his

lawyer's absence. The suspect, by retaining

counsel, has served notice upon the State

that he lacks confidence in his own ability

to deal with the State's interrogators on a

level of parity. As aptly expressed

by Justice White, concurring in Michigan v.

Mosley, 423 U.S. 96, 110 n. 2 (1975):

{T]he reasons to keep the

lines of communication be-

tween the authorities and

the accused open when the

accused has chosen to make

his own decisions are not

present when he indicates

instead that he wishes legal

advice with respect thereto.

The authorities may then

communicate with him through

an attorney. More to the

point, the accused having

expressed his own view that

he is not competent to deal

with the authorities without

legal advice, a later deci-

sion at the authorities’ in-

sistance to make a statement

without counsel's presence

may properly be viewed with

skepticism.

A compelling argument for restricting

the application of the waiver doctrine

under the circumstances of the present case

-44-

has been suggested by one commentator, as

follows:

The argument for limiting

waiver of the right to

counsel emerges from the

sixth amendment. The con-

stitutional right to counsel

is meant to counteract the

handicaps of a suspect en-

meshed in the machinery of

criminal process. Once

accused has sought the safe-

guard of counsel, it is un-

fair to let skilled inter-

rogators lure him from behind

the shield into an unequal

encounter. To permit offi-

cers to question a repre-

sented suspect in the ab-

sence of counsel encourages

them to undermine the sus-

pect's decision to rely upon

counsel. Such interrogation

subverts the attorney-client

relationship. Note, "Inter-

rogation and the Sixth Amend-

ment: The Case for Restric-

tion of Capacity to Waive

the Right to Counsel," 53

Indiana L.Jour. 313, 315 (1978).

If waiver of the right to counsel is

to be recognized at all under the circum-

stances of petitioner's encounter with

Detective Zimmerman, the standard for a

valid waiver is assuredly not the "voluntari-

ness" standard adopted by the court below.

The voluntariness of petitioner's statements

-45-

Plays no part in determining their admissi-

bility under Massiah. The basis for

Massiah's exclusionary rule is not that an

individual's will may be overborne and his

Fifth Amendment: privilege against self-in-

crimination imperiled, but rather that the

role of an attorney as an effective advocate

on behalf of his client shall not be

impaired. As recently stated in Cahill v.

Rushen, 510 F.Supp. 1219, 1224 (E.D.Cal.

1980):

"(Fjor Sixth Amendment pur-

poses, the fact that a con-

fession may be ‘voluntary’

(a product of the defendant's

untrammeled free will) or

‘volunteered’ (not the re-

sult of custodial interroga-

tion) is simply irrelevant.

Rather, Massiah seeks to pro-

tect the attorney's role as

counselor and advocate in its

broadest sense."

Waiver of the Sixth Amendment right to

counsel must be established by proof of an

"intentional relinquishment or aban-

donment of a known right or privilege."

Brewer v. Williams, supra, 430 U.S. at 404,

quoting Johnson v. Zerbst, 304 U.S. 458,

-46-

464 (1938). When Detective Zimmerman

questioned petitioner, he did so without

informing him of the right to counsel.

Assuming that petitioner had been informed

of his right to counsel at the interviews

with Zimmerman conducted on the day that

his wife's body was discovered, there is

nothing to show that petitioner understood

that he enjoyed this right during the

interview conducted three months later at

the foundry. Any inference that petitioner

must have known from the prior administration

of Miranda warnings that he had a right to

an attorney is undermined by the realization

that Zimmerman, at this subsequent interview,

informed defendant of his right to remain

silent, yet deleted any reference to the

right to counsel. By receiving such a

partial warning, at variance with the

previous full warnings provided to him,

petitioner could logically and reasonably

conclude that he had no right to have

counsel present during the interview.

Finally, even if waiver is appro-

priate, and even if petitioner knew

that he had a right to the presence of

counsel when interrogated about the clock-

radio, the record is barren of any evidence

showing an intentional relinquishment of

that right. As this Court has held in a

Sixth Amendment context, "[p] resuming

waiver from a silent record is impermissible.

The record must show, or there must be an

allegation and evidence which show,

that an accused was offered counsel but

intelligently and understandingly rejected

the offer. Anything less is not waiver."

Carnley v. Cochran, 369 U.S. 506, 516

(1962).

Cc.

THE STATE'S KNOWLEDGE THAT EVIDENCE

SUBMITTED TO THE GRAND JURY WAS

FALSE REQUIRED, AS A MATTER OF DUE

PROCESS, THAT THE GRAND JURY BE

APPRISED OF THAT FACT SO THAT IT

COULD RECONSIDER THE INDICTMENT

The thrust of the grand jury testimony

was that it was likely that Doris McDonald

had died at or before 2:00 a.m. on December

-48-

16, 1977, and that therefore the petitioner

had been present with her in the house when

she met her death. Moreover, such testimony

would indicate that petitioner must have

lied when he told the poice that his wife

was still alive shortly after 4:00 a.m.

when he left for work. Given such testimony,

it is hardly surprising that the grand jury

voted to return an indictment charging

petitioner with the murder of his wife.

Although the trial court strained to

find that the variance between the testimony

concerning time of death before the grand

jury and petitioner was not radically

different (App. p. 3a), and the appellate

court reasoned that the grand jury testimony

did not necessarily require the grand jury

to conclude that petitioner was at home

when his wife was slain (App. 'p. 28a), the

difference in the inculpatory thrust of the

testimony is patently obvious. It is

unquestioned that the prosecutor conferred

with the witness before trial and knew what

-49-

his trial testimony would be; thus, he

obviously knew of the falsity of the grand

jury testimony and materiality thereof.

It is petitioner's position, as a

matter of federal constitutional law

(Fourteenth Amendment Due Process), that it

became the duty of the prosecutor, at the

point that he became aware of the falsity

of material grand jury testimony, to

apprise the grand jury of the falsity in

the testimony originally submitted to it so

that it could reconsider the propriety of

the indictment. Applicant's position finds

support in several federal and state

court decisions. See United States v.

Guillette, 547 F.2d 743 (2d Cir. 1976);

United States v. Basurto, 497 F.2d 781 (9th

Cir. 1974); United States v. Goldman, 451

F.Supp. 518 (S.D.N.Y. 1978); State v.

Reese, 91 N.M. 76, 570 P.2d 614 (Ct.App.

1977).

In United States v. Basurto, supra,

the prosecutor learned prior to trial that

-50-

a witness who testified before the grand

jury had lied with respect to certain

subject matter which may have influenced

the nature of the indictment returned

against the defendants. The prosecutor

informed defense counsel about the perjury,

but did not notify the court or the grand

jury. Instead, the prosecutor proceeded to

trial, revealing the fact of the witness’

false grand jury testimony in his opening

statement to the jury. Following conviction,

the defendants appealed, and their convic-

tions were reversed and the indictments

dismissed by the United States Court of

Appeals for the Ninth Circuit. The

Court there ruled, at 497 F.2d 785-786:

"We hold that the Due Process

Clause of the Fifth Amendment

is violated when a defendant

has to stand trial on an in-

dictment which the government

knows is based partially on

perjured testimony, when the

perjured testimony is material,

and when jeopardy has not

attached. Whenever the prose-

cutor learns of any perjury

committed before the grand

jury, he is under a duty to

immediately inform the court

and opposing counsel - and,

if the perjury may be material,

also the grand jury - in order

that appropriate action may be

taken."

Although United States v. Basurto,

Supra, states the due process rule in terms

of perjurious testimony adduced before the

grand jury, the precursor decision of this

Court upon which the Basurto rule was

based, Napue v. Illinois, 360 U.S. 264

(1960), did not involve perjurious but

rather merely false testimony. That case

held that the knowing submission of false

testimony by a prosecutor at a state trial

invalidates the verdict of guilty under the

due process clause of the Fourteenth

Amendment.

The Court of Appeals of New Mexico, in

State v. Reese, supra, held that the

obtaining of an indictment based on false,

rather than perjurious testimony is violative

of a defendant's right to due process of

law, where the prosecutor makes no efforts

to correct the testimony upon learning of

its falsity. In reversing defendant's

conviction the court stated:

"The knowing use of false

evidence or failure to

correct false evidence at

trial on the merits, is a

violation of due process

if the evidence is material

to the guilt or innocence

of the accused. Is this

concept available to grand

jury proceedings? Yes.

Why? Under normal circum-

stances, the accused has no

right to appear before that

body, with or without coun-

sel. Since he has no right

concerning the grand jury

except that it be duly im-

paneled and conducted accord-

ing to law, his right in this

respect should be rigorously

protected. An indictment

based on false, material

evidence is not an indictment

of a grand jury conducted

according to law. We hold

that defendant has the due

process right of not being

indicted on the basis of

false evidence, known to and

uncorrected by the prosecutor,

if the false evidence is

material to the indictment."

State v. Reese, supra, 570

~2d at 617.

In the present case, the inaccurate

and misleading testimony of the county

medical examiner concerning time of death

effectively deprived the grand jury of

-53-

critical exculpatory evidence that may well

have influenced the decision to indict.

The grand jury was not informed that there

was a large period of time, approximately

five hours, when the murder may have

occurred while petitioner was undeniably

not at the murder scene. In this connection,

many federal and state court decisions have

held that the prosecutor has a duty to

present exculpatory evidence to a grand

jury. See United States v. Ciambrone, 601

F.2d 616, 623 (2d Cir. 1979); United States

v. Gold, 470 F.Supp. 1336 (N.D.I1l1l.

1979); United States v. Provenzano, 440

F.Supp. 610 (N.D.Okla. 1977); Frink v.

State, 597 P.2d 154 (Alas. 1979); Johnson

v. Superior Court, 15 Cal. 3d 248, 124 Cal.

Rptr. 32, 539 P.2d 792 (1975). This duty

also appears in the ABA Standards, The

Prosecution Function, §3.6(b)(1971), as

follows:

"The prosecutor should dis-

close to the grand jury any

evidence which he knows will

tend to negate guilt."

-54-

The basis for the imposition of a duty to

present exculpatory evidence is succinctly

expressed in United States v. Gold, supra,

470 F.Supp. at 1353:

“When a prosecutor refuses to

present exculpatory evidence,

he, in effect, destroys the

existence of an independent

and informed grand jury."

The closest this Court has come to

reviewing the issue raised herein is the

decision in Bracy v. United States, 435

U.S. 1301 (1978) (Rehnquist, Circuit

Justice), wherein applicants sought a stay

of sentence following their conviction on

various offenses, pending disposition of

their petition for certiorari. Applicants

alleged that a witness committed perjury

before the grand jury that returned the

indictment against them. Following

revelation of the perjury at trial, appli-

cants sought dismissal of the indictment,

alleging that the prosecutor should have

immediately informed them and the court

when he became aware of the perjury.

=§ 50

The district court denied applicant's

motion to dismiss, and the Ninth Circuit

affirmed, United States v. Bracy, 566 F.2d

649 (9th Cir. 1977), distinguishing its

earlier opinion in United States v. Basurto,

supra. In Bracy, the perjurious testimony

given before the grand jury implicated

applicants in the offenses for which they

were indicted, as did the corrected testimony

at the trial. Thus, the grand jury was not

deprived of any exculpatory evidence.

United States v. Bracy, supra, 566 F.2d at

656. Moreover, that testimony was found to

fall short of Basurto's requirement that

the perjurious testimony before the grand

jury be material, in the sense that it have

some apparent connection to the grand

jury's decision to indict.

In considering the application for a

stay, Justice Rehnquist acknowledged that a

prosecutor is under a duty to correct

testimony given at a criminal trial that he

knows to be false (even if not perjurious).

Bracy v. United States, supra, 435 U.S. at

1302. However, he went on to state that

because the grand jury functions as an

accusatory body in our system of criminal

justice, it is concerned with the nature,

and not the quality, of the evidence before

it. Citing Costello v. United States, 350

U.S. 359 (1956), for the proposition that

the evidence before the grand jury is not

susceptible to challenge following the

return of an indictment valid on its face,

Justice Rehnquist denied the application

for a stay.

It is not entirely clear from the

opinion in Bracy whether Justice Rehnquist

would conclude that the introduction of

perjurious testimony that is material to

the indictment returned would require a

different result. Nor is it clear whether,

if the corrected testimony revealed to the

prosecutor prior to trial exculpated an

accused, there would be a duty upon the

prosecutor to return to the grand jury and

=§7=

present the corrected version. Cf. Brady

v. Maryland, 373 U.S. 83 (1963).

More fundamentally, Justice Rehnquist's

opinion in Bracy, while focusing on the

role of the grand jury, does not mention

the independent duty of a prosecutor when

he discovers prior to trial on an indictment

that false material evidence was presented

before the grand jury that returned that

indictment. Nor does the opinion take into

account this Court's observation in United

States v. Dionisio, 410 U.S. 1, 16-17

(1973), that the mission of the grand jury

"is to clear the innocent, no less than to

bring to trial those who may be guilty.”

The instant case is one where clearly

false testimony was presented to a grand

jury, which relied upon that evidence in

returning an indictment. The prosecutor

was obviously aware of the falsity of that

testmony before proceeding to trial. He

elected to do noghing, although the corrected

version was exculpatory of petitioner, and =

may well have resulted in the grand

jury reconsidering its decision to indict,

had that information been presented to

it.

CONCLUSION

For the foregoing reasons, a writ of

certiorari should issue to review the

judgment and opinion of the Superior Court

of New Jersey, Appellate Division.

Respectfully submitted,

MILTON B. CONFO

Counsel for Pet

Robert M. McDortald

WILENTZ, GOLDMAN

& SPITZER

A Professional

Corporation

WARREN W. WILENTZ, ESQ.

Of Counsel

E. JAMES MULLALY, ESQ.

Of Counsel

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

Chambers of Middlesex County Court

RICHARD S. COHEN House

Judge New Brunswick, N.J.

08903

July 2, 1979

Robert H. Corbin, Esquire

Assistant Prosecutor

Administration Building

New Brunswick, NJ 08903

Warren W. Wilentz, Esquire

Wilentz, Goldman & Spitzer

Plaza 9 Building

900 Route 9

P. O. Box 10

Woodbridge, NJ 07095

RE: State v. Robert M. McDonald

Indictment No. 1371-76

Gentlemen:

This is the defendant's motion for a

Judgment N.O.V., for a new trial, and for

dismissal of the indictment following the

conviction of murder in the second degree.

The defendant argues that the variance

between Dr. Shuster's grand jury and trial

testimony invalidates the indictment

altogether. A parallel argument is that

the state failed in its duty to apprise the

defendant before trial that Dr. Shuster's

testimony would be different than was

forecast by his postmortem report and grand

jury testimony.

I am satisfied of the following:

-la-

Robert H. Corbin, Esquire

Warren W. Wilentz, Esquire

Page 2

July 2, 1979

(a) The Shuster testimony at trial was

that there was a period 8-19 hours before

5 P. M. on the day of death during which

death occurred.

(b) Shuster's grand jury testimony is

readable by the careful reader to circum-

scribe the same 8-18 hour period. The gist

of his testimony, however, was that Dr.

Shuster relied upon the rigor mortis index

to place time of death at 12-18 hours

before 5 P. M., and that he fixed 2 A. M.

as the likely time of death by taking the

mean time within that period.

(c) When he testified before the grand

jury, Dr. Shuster was aware that a time of

death later than the early morning hours

would exculpate the defendant.

(4) Dr. Shuster did not distort or

tailor his grand jury gr cory | to make his

estimate of time of death earlier than

indicated by his view of the scientific

evidence.

(e) The variance between the grand

jury and trial testimony was not due to any

change of Dr. Shuster's mind, but rather by

Mr. Corbin's choice of questions. Mr.

Corbin was aware that two eminently qualified

pathologists would gre for the defendant

and that Dr. Shuster's opinion that death

occurred at 2 A. M. would suffer by compari-

son with their conclusions that no such

precise estimate could be made. He

therefore dissipated the potential problem

by steering questions away from it. He may

have done so with Dr. Shuster's prior

knowledge or without.

-2a-

Robert H. Corbin, Esquire

Warren W. Wilentz, Esquire

Page 3

July 2, 1979

(f£) The defendant was not prejudiced

in his preparation for trial by not knowing

in advance that Dr. Shuster's testimony

would be less inculpatory than it was

forecast to be.

On the basis of all of the above, I

conclude that the indictment is not faulty.

The witness did not lie in either forum,

The basic factual material did not change,

although its thrust did so. An indictment

is not challengable after trial on the

thesis that the grand jury may not have

indicted if it had heard a focal witness's

trial testimony. Similarly, this is not a

case in which the State has notice that a

witness will recant his trial testimony.

Rather, it knew only that the State's trial

counsel would try to keep the witness's

testimony general and in harmony with the

predicted testimony of the defense's

superstar witnesses. That kind of tactical

decision is a matter the State has no duty

to share with the defendant before trial.

Another argument made by the defendant

is that his conviction of second degree

murder conflicts with the proofs and must

be reversed. He argues that if he is

guilty of anything it is first degree

murder. Anything less must be a compromise.

Second degree murder was submitted to

the jury without objection. Indeed, such

an objection would have been fruitless,

because the evidence was susceptible to a

second degree murder conviction. The jury

could have believed that the shot that hit

the decedent's body was fired while she was

yet upright, that the shot killed her, that

-3a-

Robert H. Corbin, Esquire

Warren W. Wilentz, Esquire

Page 4

July 2, 1979

the later shots into her head were fired

after she was dead, and that the body

shot might well have been fired in anger,

without reflection or without a deliberated

plan to kill. In the alternative, the jury

might have been fully convinced the defen-

dant shot and killed his wife in anger but

concluded that the lack of information

before them about what preceded the shooting

barred a finding of deliberation and

premeditation.

There is another answer. A defendant

who might well have been found guilty of

one offense cannot complain that he was

convicted only of a lesser included crime.

If all of the elements of the greater

offense were present, as the defendant

suggests, he is not hurt by the jury's

finding less than all of them. This

conclusion may not be compelled by pure

reason, but it is required in practice. If

the conviction were reversed on this

thesis, the defendant could not be retried.

He could not be retried for first degree

murder because he was once acquitted. He

could not be retried for second degree

murder because the reversal would establish

that verdict as impermissible. Manslaughter

would, for the same reason, be unavailable.

Such a windfall result should not follow a

jury's finding a defendant guilty of less

than they might have done. The verdict is

not invalid on this ground.

The defendant's major application is

for a judgment of acquittal notwithstanding

the verdict. The application must be

granted unless there was sufficient evidence

presented by the State to permit a jury

Robert H. Corbin, Esquire

Warren W. Wilentz, Esquire

Page 5

July 2, 1979

reasonably to conclude, beyond a reasonable

doubt, that the defendant had murdered his

wife.

There were a number of circumstances

presented to the jury for consideration.

From them the jury could reasonably have

found

(a) The defendant was at home from

about 8:30 p.m. to between 4:00 and

4:30 a.m. His wife came home at about the

same time he did.

(b) The McDonald's relationship was

strained by his health and concern for the

future and his seeing another woman.

(c) At the time of her death, Mrs.

McDonald had removed her outer dress but

had not yet completed undressing for bed,

or removing her jewelry.

(4) The wind-up alarm clock went off

at 7:00 a.m. but was not shut off. If was

allowed to run down. Most people turn

their alarms off. This indicates death

before 7:00 a.m.

(e) There was no evidence of break in,

robbery or struggle. The first indication

of violence is the defense wound in Mrs.

McDonald's hand. The murderer was therefore

someone whom Mrs. McDonald permitted in her

bedroom without objection.

(£) Mrs. McDonald worked until about

8:00 p.m., with only half of a sandwich at

about 4:45 p.m. When killed, she had

stomach contents indicating she ate addi-

-Sa-

Robert H. Corbin, Esquire

Warren W. Wilentz, Esquire

Page 6

July 2, 1979

tional and different food when she got

home. A reasonable time for that would be

8:30 to 10:00 p.m. The state of digestion

makes it likely death occurred before 4:00

a.m.

(g) There is no imaginable other

motive or person likely to explain the

murder.

(h) It is not uncommon for a middle-

Class household to contain an unregistered

handgun. It is not impossible for a person

to dispose of one along the road at 4:30 or

5:00 in the morning or in a foundry later

in the day.

The apparently exculpatory evidence

disappears on close examination. The early

morning speeding car was just a car in the

street that was identified with the

McDonald house only in retrospect. The

absence of late-night lights as represented

by a neighbor was not the result of directed

observation. The defendant's reputation

for good character does not weigh heavily

against an isolated uncharacteristic

explosion of emotion. The slept-in condition

of the bed resulted from the couple's

getting up during the night, as the defendant

suggests might have happened, and the

incident's occurring at that time.

Not one of the above-stated facts was

proved beyond a reasonable doubt. All of

them are matters the jury could reasonably

have felt were probably true - true more

likely than not. A collection of such

matters can, by their numbers, combine to

produce proof of guilt beyond a reasonable-

Robert H. Corbin, Esquire

Warren W. Wilentz, Esquire

Page 7

July 2, 1979

doubt. In other words, enough circumstances

that have been proved probably to exist can

add up to proof beyond a reasonable doubt.

The focal question in this trial was what

time Mrs. McDonald died. If it was before

the defendant left for work, he must

have killed her, for no other conceivable

explanation could be made. The circumstances

presented to this jury were sufficient to

permit them to conclude reasonably and

beyond a reasonable doubt that Mrs. McDonald

died before the defendant left the house.

The motions for judgment n.o.v. and

for a new trial and for dismissal of the

indictment are denied. The State will

present an order.

The defendant will present himself for

sentencing on Monday, July 9, at 9:00 A.M.

Very truly yours,

RICHARD S. COHEN

J. S. Ce

RSC:ko

-J7a-

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-4187-78

STATE OF NEW JERSEY,

Plaintiff-Respondent,

Ve

ROBERT M. MC DONALD,

Defendant-Appellant.

Argued November 12, 1980 - Decided

December 4, 1980

Before Judges Matthews, Morgan

and Morton I. Greenberg.

On appeal from the Superior Court,

Law Division, Middlesex County.

Warren W. Wilentz argued the cause

for appellant (Wilentz, Goldman &

Spitzer, attorneys; Mr. Wilentz,

of counsel; E. James Mullaly, on

the brief).

Daniel Grossman, Deputy Attorney

General, argued the cause for respon-

dent (John J. Degnan, Attorney

General, attorney; William F. Lamb,

Deputy Attorney General, of counsel

and on the brief).

The opinion of the court was delivered

by GREENBERG, J.A.D.

Defendant was indicted for the murder

of his wife, Doris McDonald. N.J.S.A.

2A:113-1 and 2A: 113-2. After a jury trial

he was convicted of murder in the second

degree and was sentenced to a term of not

less than twelve years or more than fifteen

years. He appeals asserting as error

various grounds to be discussed later.

The evidence produced on the State's

case, a portion of which consisted of

reading defendant's statements given the

police, showed that defendant and decedent

were married and in December 1976 were

residing together at 26 Wilson Avenue in

the Borough of Middlesex. They had three

children but all were married and none were

living at home. Although they had been

married for many year. there was friction

in the marriage because of defendant's

relationship with a woman from Florida

named L. B. who was alleged to be a

prostitute. Between three weeks and a

month prior to December 16, 1976 defendant

consulted an attorney concerning the

institution of divorce proceedings. On the

-9a-

evening of December 15, 1976 defendant and

decedent were home from about 8:30 p.m. on.

Defendant went to bed about 9:30 p.m.

Defendant indicated that he awakened at

4:00 a.m. on December 16, 1976 and that

his wife was awake at that time. He got up

to go to work at a foundry he operated.

The travel alarm in the McDonald bedroom

was set for his wife for 7:00 a.m. Defendant

left for work at about 4:15 a.m. The alarm

was set because his wife was also employed

and had to go to her job. When he left the

house he locked the front door. He

observed nothing unusual at that time.

During the day he called L.B. in Florida.

Defendant said the call was made before he

knew of his wife's death.

Decedent's body was found at about

2:00 p.m. on December 16, 1976 in the

following circumstances. On December 10,

1976 defendant and a neighbor, Linda

Berger, | who resided at 29 Wilson Avenue

1 Berger is not the same person as L.B.

-10a-

directly across the street from the McDon-

ald's, made arrangements for Berger to

accept delivery of appliances that defendant

had purchased as a surprise for his daughter,

Susan DeSantis. Subsequently it was agreed

that Berger would go to Susan's house and

receive the appliances there rather than at

defendant's house. The delivery was made

on the morning of December 16, 1976.

Berger attempted to telephone decedent at

her office after the delivery was made to

tell her about it. Berger was advised by

the person answering at the office that

decedent had not come to work. Accordingly

Berger called the McDonald residence but

her calls were not answered even though

decedent's car was in the driveway.

During the afternoon defendant called

Berger to ascertain whether the delivery

had been made. In the course of the

conversation Berger told defendant of her

unsuccessful attempts to reach decedent.

Defendant then requested that Berger

-lla-

call her again. When this call was not

answered Berger again called defendant.

Defendant then asked Berger to call a

second married daughter, Barbara Shafer,

and have her go to the McDonald house to

see if her mother was there and if every-

thing was all right. This call was made

and as a result Shafer and decedent's

sister, Janet Weinman, went to defendant's

house around 2:00 p.m. Decedent's car was

still in the driveway. The front door was

locked but Shafer had a key. The women

then unlocked the house and entered looking

for decedent. They found her in her

bedroom lying face down on the bed. She

was wearing a winter-weight robe. There

was a pillow covering her head. The

bedroom was dark and the shades were drawn.

The police were immediately called and

arrived shortly thereafter. In the ensuing

investigation various observations were

made. There were gunpowder marks and

bullet holes observable on the pillow.

-l2a-

Bullet holes were discovered in the wall

behind the bed and on the floor. The rest

of the house was not disturbed. Two

watches, $28 in currency and a roll of

pennies were in plain view on a dresser in

the bedroom. There was additional money in

a closet. There was no indication that a

robbery had been committed. Drawers in

dressers were not pulled out or dumped.

The travel alarm clock that defendant said

had been set for 7:00 a.m. had run out.

The doors and windows of the house were

examined. They showed no signs of forcible

entry. The bed in which decedent was

found apparently had been slept in.

Defendant was called at his foundry

and told what happened. He immediately

returned home. He told the police he could

see no signs of forcible entry and that

nothing was missing. He then made two

formal statements to the police after being

advised of his Miranda“ rights.

2 Miranda v. Arizona, 354 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966).

-l3a-

The first was given at his house and the

second was made at the Middlesex County

Prosecutor's office. Their content has

already been noted.

Decedent's body was removed to the

morgue at Perth Amboy General Hospital.

The body was preliminarily examined at 4:50

P-m. on December 16, 1976 by Chief Middlesex

County Medical Examiner Marvin Shuster,

M.D., a trained pathologist. Shuster

performed a full autopsy on December 17,

1976. He determined that decedent had died

from gunshot wounds. Two bullets were

found in the body. He found no evidence of

trauma to the victim's external genitalia.

He noted that decedent was still wearing

rings. Tests made for semen on her person

and clothing by Special Agent Robert E.

Beams of the Federal Bureau of Investigation

were negative. Beam's tests of fingernail

scrapings indicated the presence of human

blood and a fibrous material but the

sources were not ascertained.

-l4a-

Shuster also made an effort to establish

the time of death. He testified both at

the grand jury and at the trial with

respect to this matter. Since an asserted

conflict in his testimony on this point

raises a question on this appeal we will

recite it from both places though obviously

the grand jury testimony cannot be used to

support the verdict. Testifying before the

grand jury Shuster said that decedent

had been dead approximately fifteen hours

when he first examined her on December 16,

1976. That put the time of death at 2:00

a.m. on that day, a time at which decedent

and defendant were both in the house.

Subsequently he told the grand jury that

the time of death could have been five

or six hours before 2:00 a.m. or three

hours after 2:00 a.m. and thus between 8:00

Pem. on December 15, 1976 and 5:00 a.m. on

December 16, 1976 and that decedent had

been dead for at least eight hours when he

initially examined her. Since the examina-

-15a-

tion was made at 4:50 p.m. that meant that

the time of death could have been as

late as 9:00 a.m. At the trial Shuster

said that decedent had died certainly more

than eight hours before he saw her and

somewhat less than eighteen hours before

the examination.

No arrest was made immediately after

the murder, however the case remained under

active investigation. Additional evidence

was uncovered. On February 27, 1977

defendant's son-in-law, Larry Shafer, was

at defendant's house to move furniture.

Defendant and Shafer discovered that there

was a builet hole in the clock radio next

to the bed. Shafer indicated he would take

the radio downstairs but defendant said not

to do that but that he, defendant, would

throw the radio out. Shafer later called

the prosecutor's office and apparently

advised that office of these events. The

next day detectives from that office went

through defendant's trash. The clock radio

~l6a~-

with a bullet in it was found.

On March 10, 1977 Detective Joseph L.

Zimmerman of the prosecutor's office

questioned defendant about the clock radio

at defendant's foundry in Irvington.

Zimmerman knew that defendant was represented

by counsel. He did not give defendant

Miranda warnings but nevertheless defendant

was found by the trial judge to have known

that he was not required to discuss the

matter with Zimmerman. Defendant said that

Shafer threw out the clock radio. This

evidence was admitted at trial.

Defendant did not testify at the trial

but he did present evidence showing his

good character and reputation for-peaceful

conduct. Gabriel Pinter, a neighbor of the

McDonald's, heard a car making a lot of

noise at about 6:10 a.m. or 6:15 a.m. near

the McDonald house. It seemed to be

accelerating. He did not actually hear it

start up. Defendant also presented testimony

from employees that established that he

-l7a-

arrived at the foundry no later than 5:00

a.m. and stayed there until he was called

home after the body was discovered.

Additionally, defendant presented

testimony from Martin J. Salwen, M.D., and

Russell S. Fisher, M.D., both pathologists.

Salwen testified that decedent probably

died between eight and eighteen hours

before Shuster's examination and thus

between 11:00 p.m. on December 15, 1976 and

9:00 a.m. on December 16, 1976, though it

was possible that she died more than

eighteen hours earlier or up to five hours

before the examination. Fisher said that

when Shuster performed his examination the

decedent had, been dead at least six or

eight hours and that she may have been dead

eighteen or twenty hours.

At the outset of the trial, before

jury selection, defendant asked the trial

judge to rule on whether testimony concerning

defendant's relationship with L. B. would

be admissible. Defendant felt that such

-l18a-

testimony could be prejudicial and should

thus be excluded. The State indicated that

it would attempt to prove the existence of

the relationship as one indicia of marital

discord leading to the murder. The trial

judge declined to rule on the evidence

in advance of trial. Ultimately some

evidence of the relationship was admitted;

other evidence was excluded. During jury

selection counsel requested that the judge

question the panel about the effect of the

relationship on their impartiality. The

court complied and one juror was excused as

a result.

During summation the prosecutor

referred to defendant's conduct as being a

"murder of hatred." Defendant did not

object to the characterization.

Defendant appeals asserting the

following points:

(1) The evidence adduced at trial was

not sufficient to justify the

trial court's denial of defendant's

motion for acquittal.

-19a-

(2)

(3)

(4)

(5)

(6)

(7)

The trial court committed error by

refusing to grant defendant a new

trial.

Defendant was brought to trial on

an indictment known by the State

to be founded upon critically

false and misleading testimony,

and the State's failure to inform

the grand jury of this circumstance

resulted in the deprivation of

defendant's valued right to

indictment by an informed and

effective grand jury, requiring

reversal of the conviction

and dismissal of the indictment.

The trial court erred by permitting

the State to introduce at trial

certain statements concerning a

clock-radio made to a member of

the prosecutor's staff during the

course of interrogation.

Defendant's objection to the

introduction into evidence of his

March 10 statement to Detective

Zimmerman concerning a clock-radio

is based on both constitutional

and ethical grounds.

The trial court abused its discre-

tion by refusing to determine the

admissiblity of the State's

alleged motive evidence prior to

the selection of the jury.

The prosecutor in summation sought

to have the jury infer a motive

for defendant to murder his wife

which was not based on the evidence

adduced at trial, and the resultant

prejudice to defendant requires

reversal of the conviction.

-20a-

(8) The State failed to prove a motive

for defendant to murder his wife,

and may not now urge that evidence

erroneously admitted by the trial

court for the purpose of establish-

ing a motive theory subsequently

abandoned by the State successfully

establishes a motive for the

murder that the State expressly

disavowed during the trial.

Plainly the evidence presented required

the trial court to deny defendant's motions

for acquittal made at the time of the

State's case, at the end of all the evidence

and after the verdict. The test is whether

viewing the State's case in its entirety

and giving the State the benefit of testimony

it has produced including the favorable

inferences which could reasonably be drawn

therefrom, whether the jury could find

defendant guilty beyond a reasonable

doubt. State v. Brown, 80 N.J. 587, 591

(1979); State v. Reyes, 50 N.J. 454,

458-459 (1967). Obviously the testimony

against defendant was circumstantial but

this fact does not change the rule. State

v. Ray, 43 N.J. 19, 30-31 (1964); State v.

Fiorello, 36 N.J. 80, 86-90 (1961), cert.

-2la-

den. 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed.2d

396 (1962). Here the evidence permitted

the jury to find defendant guilty beyond a

reasonable doubt. Indeed it is difficult

to perceive of how the jury could not have

concluded that defendant shot and killed

his wife unless the jury was to engage in

speculation. The medical evidence of the

State showed that the death could certainly

have occurred when defendant and decedent

were both in the house. The alarm clock

was not turned off at 7:00 a.m. This

resulted in a permissible inference that

death occurred prior to the alarm's

ringing. There was no sign of forcible

entry even though defendant had left the

house locked when he went to work. Dece-

dent's sister and daughter found the house

locked when they arrived in the afternoon

of December 16, 1976. Thus, if someone

else entered the house through the front

door and murdered decedent he was careful

to lock it behind him when he entered (if

-22a-

he left in some other way) or when he left

if he went through that door. There was no

indication of robbery. The jury could

reasonably have believed that had a burglar

committed the murder he would have taken

the money and watches. Additionally, there

was friction between the couple. Further-

more defendant attempted after the murder

to conceal the evidence of the clock radio.

Even if the radio itself would not have

materially aided the investigation if

defendant turned it promptly over to the

police, his act of hiding it was rationally

related to his mental state and the jury

could reasonably draw the inference

that he thought the evidence to be incrimi-

nating.

Also, we should not overlook the

circumstances surrounding the discovery of

decedent's body though the inferences to be

drawn from them are more suggestive of first

degree than second degree murder. Berger's

testimony indicated that defendant had

-23a-

arranged for the purchase of appliances for

his daughter. It could be inferred from

that testimony that he knew that the

delivery was to be on December 16, 1976

because he called Berger in the afternoon

of that day to ascertain if it had been

made. When he called her, she advised

him that she had not been able to reach

decedent even though her car was visible in

the driveway. If defendant had planned his

wife's murder he could have foreseen that

Berger would convey this information to him

when he called because the proximity of the

McDonald and Berger residences made it

likely that someone from the Berger house-

hold would see, as indeed happened, dece-

dent's car in the driveway. The Berger

call to defendant triggerred the activity

already described that led to the body

being discovered. The significance of

this is clear: if defendant planned to

murder his wife the jury could have inferred

that he would have wanted some third party

-24a-

to find the body. While guilt would not

have been per se established simply because

decedent had come home and found his wife

murdered, the jury had every right to

believe that decedent's conduct, with

respect to the delivery of the appliances,

was highly suspicious and intended to

divert suspicion from him.

We add, of course, that the inferences

to be drawn from the evidence accumulated

after the discovery of the murder are not

necessarily inconsistent with the verdict of

murder in the second degree. Quite to the

contrary the jury could have reasonably

concluded that the murder had not been

planned before December 16, 1976 and that

the delivery of the appliances on that date

was coincidental. The jury could have

concluded that defendant merely took

advantage of the circumstances of the

delivery of the appliances to make the call

which resulted in the body being found.

Defendant's motion for a new trial was

-25a-

properly denied. We fail to see any miscar-

riage of justice in the verdict. R. 2:10-1;

State v. Sims, 65 N.J. 359, 373-374 (1974).

Clearly the evidence supported the verdict.

Further even defendant's experts' testimony

placed the time of death as being within a

period during which defendant was home.

Surely it could not seriously be contended

that simply because a neighbor heard

a noisy car accelerating from the direction

of the McDonald house that the jury could

not believe that defendant was the murderer.

Defendant was not entitled to a

new trial on the ground that the verdict was

a compromise. Defendant asserts that while

he was not the murderer, whoever did commit

the homicide committed first degree murder.

To establish that defendant had committed

first degree murder, the State had to prove

the additional elements of willfulness, pre-

meditation and deliberation required to

elevate the presumed second degree murder

-26a-

to the first.’ State v. Christener, 71

N.J. 55, 64-65 (1976). It is difficult to

see why the jury, in the absence of

an eye witness to the murder, had to

conclude that defendant committed first

degree murder. He was, after all, entitled

to an acquittal of first degree murder

unless the jury could find him guilty of

that crime beyond a reasonable doubt.

We «‘rther note that the Supreme Court

has rece tly disapproved the concept of an

all or nothing verdict and has in fact

indicated that on an indictment for first

degree murder the trial court should charge

second degree murder even if defendant does

“not want the charge, provided, of course,

the evidence would permit such a verdict.

State v. Powell, 84 N.J. 305, 318 (1980).

This was such a case.

3 If the State proves beyond a reasonable

doubt that a defendant committed murder

there is a presumption that the murder was

in the second degree. State v. Robinson,

139 N.J. Super., 475, 483-484 (App. Div.

1976).

-27a-

Defendant's argument that the variance

between the grand jury and trial testimony

of Dr. Shuster requires a dismissal of the

indictment is without merit. What defendant

suggests is that the State presented false

and misleading testimony to the grand jury.

Our reading of the testimony shows that Dr.

Shuster was not certain as to the time of

death either at the trial or before the

grand jury. The testimony presented at

both times if believed permitted, but did

not require, the grand jury and the trial

jury to conclude that decedent had died

before defendant left the home. The lack

of definiteness in the testimony was

consistent with the expert testimony of

Drs. Salwen and Fisher, defendant's wit-

nesses. A trial court should dismiss an

indictment only for clear reasons. State

v. Winne, 12 N.J. 152, 181-182 (1953);

State v. Ferrante, 111 N.J. Super. 299,

304 (App. Div. 1970). There were no such

reasons here.

-28a-

Defendant's statement to Zimmerman was

properly admitted. Defendant was not given

Miranda warnings but they were not required

since the interrogation was not custodial.

Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct.

711, 50 L.Ed.2d 714 (1977); State v.

Div. 1979), certif. den. 82 N.J. 290

(1980). Nor was defendant denied counsel

during the interrogation. Quite to the

contrary, defendant knew that he did not

have to answer any questions. Thus,

when he answered he acted voluntarily. In

these circumstances we do not see how his

Sixth and Fourteenth Amendment right to

counsel was infringed.

Even assuming that the statement was

derived by unethical means, it was still

properly admitted. DR 7-104(A)(1) does

interdict direct communication with a party

by opposing counsel if the party is

himself represented but treating defendant

as a party at the time of the pre-indictment

-29a-

interrogation does not help him. The

disciplinary rule does not include a

built-in evidentiary exclusionary rule such

as that dealt with in State v. Cerbo, 78

N.J. 595, 500-602 (1979). In the absence

of such a rule the evidence should have

been admitted. See Barbetta v. Sciaraffa,

135 N.J. Super. 488, 495 (App. Div.

1975). We are, of course, aware of the

decision of the Supreme Court in State v.

Sugar, 84 N.J. 1 (1980). Plainly the

unethical and perhaps criminal conduct

involving defendant's rights in Sugar was

quite different from what happened here.

Sugar involved eavesdropping on the confi-

dential conversations between an attorney

and client. Here the State did nothing

underhanded.

The trial judge did not abuse its

discretion in refusing to determine in

advance of trial whether the State could

prove the existence of defendant's relation-

ship with L. B. to establish a motive for

-30a-

the murder. We are aware of no rule

that requires pretrial evidentiary hearings

on all evidence to be offered. There are,

of course, certain particularized situations

where pretrial rulings are obtained. See,

e.g-, R. 3:5-7. There is a danger, however,

in making pretrial rulings the general rule

since it can result in pretrial evaluations

of evidence that varies from the evidence

eventually submitted at the trial itself.

We conclude that defendant suffered no

prejudice from the way the trial court

dealt with the issue. Indeed, defendant

may have received a better disposition on

the issue than he deserved because evidence

relating to his relationship with L. B.

went to motive. Thus we do not see why the

State should not have been permitted to

inquire into defendant's relationship with

her. State v. Rogers, 19 N.J. 218,

228-229 (1955). Further, the juror who

expressed possible prejudice as a result

of the relationship was excused.

-3la-

Defendant's objection to the prosecu-

tor's summation, characterizing the homicide

as a murder of hatred, is not substantial.

We note that defendant did not object to

this characterization in the trial court.

On this basis alone defendant should

be barred from raising the issue before us.

State v. Farrell, 61 N.J. 99, 106-107

(1972). In any event, the remark was made

to underscore the State's theory that the

murder had not been committed by a robber

or a rapist and thus the characterization

was a fair comment. The jury could have

justifiably believed that the decedent was

killed by multiple gunshot wounds by a

person intent only on murder and not some

other crime. Further, the evidence

supported a finding that defendant fired

the bullets. In these circumstances

defendant cannot claim prejudice from the

summation. |

Defendant is not entitled to an

acquittal on the basis that the State

-32a-

failed to prove motive. There is no

question but that animosity between the

parties was shown. Even if defendant

committed the act for unknown reasons the

verdict was proper on the basis of the

evidence.

Affirmed.

-33a-

NEW JERSEY SUPERIOR COURT

MIDDLESEX COUNTY

LAW DIVISION - CRIMINAL

Indictment No. 1371-76

Accusation No.

S.B.I. No.

DATE OF ARREST 6/30/77

THE STATE OF NEW )

JERSEY, )

)

Ve )

) JUDGMENT OF CONVICTION

ROBERT M. MCDONALD, ) AND

) ORDER FOR COMMITMENT

Defendant. )

The defendant on June 30, 1977 having

entered a plea of not guilty to Indictment

No. 1371-76 for the crime(s) of Murder,

N.J.S. 2A:113-2 and the defendant having on

April 30, May l, 2, 3, 4, 7, 8, 9 BEEN

TRIED with A JURY AND A verdict OF GUILTY

TO: Murder - Second Degree, N.J.S. 2A:113-2

having been rendered on May 10, 1979

It is, therefore, on July 9, 1979 Ordered

and Adjudged that the defendant be and is

sentenced to New Jersey State Prison for

not less than twelve (12) years nor

more than fifteen (15) years. The sentence

is stayed pending appeal. Bail is continued.

IT IS FURTHER ORDERED THAT THE SHERIFF

DELIVER THE DEFENDANT TO THE AFORE-NAMED

INSTITUTION TO SERVE HIS SENTENCE.

STATEMENT OF REASONS REQUIRED BY

R.3:21-4(e) APPEARS ON THE REVERSE

SIDE

ATTORNEY FOR DEFENDANT

Upon entry of Guilty Plea Defendant to re-

or Conviction ceive R.3:21-8

credit for time

spent in custody

-34a-

Warren W. Wilentz, Esquire

At time of Sentencing

Warren W. Wilentz, Esquire

County Clerk

Date

-35a-

From 6/30/77 to

6/30/77 Days

credit one

RICHARD S. COHEN,

J.8.C.

STATEMENT OF REASONS, R.3:21-4(e)

The killing of another human being

without justification or excuse is an

offense deserving of substantial condemna-

tion by society expressed in a prison

sentence. That is the primary focus of my

sentence, and I believe it to be sufficient

for that purpose. The act was a unique one

in the defendant's life and neither reha-

bilitation nor individual deterrence is

relevant.

July 9, 1979 RICHARD S. COHEN, J.S.C.

Date

-36a-

SUPREME COURT OF NEW JERSEY

C-310 SEPTEMBER TERM 1980

STATE OF NEW JERSEY H

Plaintiff-Respondent, :

vs. ’ ON PETITION FOR

CERTIFICATION

ROBERT M. MCDONALD, $

Defendant-Petitioner. :

To the Appellate Division, Superior Court:

A petition for certification of the

judgment in A-4187-78 having been submitted

to this Court, and the Court having consi-

dered the same;

It is ORDERED that the petition for

certification is denied with costs.

WITNESS, the Honorable Mark A. Sullivan,

Presiding, Justice, at Trenton, this 10th

day of February, 1981.

Stephen W. Townsend

Clerk

-37a-

SUPREME COURT OF THE UNITED STATES

No. A-775

ROBERT M. MCDONALD,

Applicant

Vv.

NEW JERSEY

UPON FURTHER CONSIDERATION of the

application of counsel for the applicant

and of the response filed thereto,

IT IS ORDERED that the temporary stay

entered by the undersigned on March 12,

1981 is vacated and the application for

bail is denied.

/s/ William J. Brennan Jr.

Associate Justice of the

Supreme Court of the

United States

Dated this 20th

day of March, 1981

-38a-

CONSTITUTIONAL PROVIS{ONS INVOLVED

FIFTH AMENDMENT TO CONSTITUTION OF THE UNITED

STATES

No person shall be held to answer

for a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a Grand Jury, except in

cases arising in the land or naval

forces, or in the Militia, when in

actual service in time of War or

public danger; nor shall any person be

subject for the same offense to be

twice put in jeopardy of life or limb;

nor shall be compelled in any criminal

case to be a witness against himself,

nor be deprived of life, liberty, or

property, without due process of law;

nor shall private property be taken

rp public use, without just compensa-

tion.

SIXTH AMENDMENT TO CONSTITUTION OF THE UNITED

STATES

In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an impartial

jury of the State and district wherein

the crime shall have been committed,

which district shall have been previous-

ly ascertained by law, and to be in-

formed of the nature and cause of

the accusation; to be confronted with

the witnesses against him; to have

compulsory process for obtaining

witnesses in his favor, and to have

the Assistance of Counsel for his

defence.

FOURTEENTH AMENDMENT TO CONSTITUTION OF THE

UNITED STATES

Section 1. All persons born or

-39a-

naturalized in the United States, and

subject to the jurisdiction thereof,

are citizens of the United States and

of the State wherein they reside. No

State shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive

any person of life, liberty, or

property, without due process of law;

nor deny to any person within its

jurisdiction the equal protec-

tion of the laws.

Section 2. Representatives shall be

apportioned among the several States

according to their respective numbers,

counting the whole number of persons

in each State, excluding Indians not

taxed. But when the vight to vote at

any election for the choice of electors

for President and Vice President of

the United States, Representatives in

Congress, the Executive and Judicial

officers of a State, or the members of

the Legislature thereof, is denied to

any of the male inhabitants of such

State, being twenty-one years of

age, and citizens of the United

States, or in any way abridged, except

for participation in rebellion, or

other crime, the basis of representation

therein shall be reduced in the

proportion which the number of such

male citizens shall bear to the whole

number of male citizens twenty-one

years of age in such State.

Section 3. No person shall be a

Senator or Representative in Congress,

or elector of President and Vice

President, or hold any office, civil

or military, under the United States,

or under any State, who, having

previously taken an oath, as a member

-40a-

of Congress, or as an officer of the

United States, or as a member of any

State legislature, or as an executive

or judicial officer of any State, to

support the Constitution of the United

States, shall have engaged in insurrec-

tion or rebellion against the same, or

given aid or comfort to the enemies

thereof. But Congress may by a vote

of two-thirds of each House, remove

such disability.

Section 4. The validity of the

public debt of the United States,

authorized by law, including debts

incurred for payment of pensions and

bounties for services in suppressing

insurrection or rebellion, shall not

be questioned. But neither the United

States nor any State shall assume or

pay any debt or obligation incurred in

aid of insurrection or rebellion

against the United States, or any

claim for the loss or emancipation of

any slave; but all such debts,

obligations and claims shall be held

illegal and void.

Section 5. The Congress shall have

power to enforce, by appropriate

legislation, the provisions of this

article.

-4la-