Appendix — Halko v. Anderson

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APPENDIX = r

UNITED STATES court oF APPEALS

FOR THE THIRD CIRCUIT

No. 15615 ate

Joun J. Hatxo, Jn., Appellant

v. es

Raymonp W. Anprrson 7

APPEAL Paes THE UNITED States Districr Court ror THE

ears District or DELAWARE

| Argued April 19, 1966 :

Before Katopner, Hastre and Smrru, Cirouit Judges

Opinion of the Court be

(Filed May 5, 1966)

tioner has sought) habeas corpus in the District Court for —

the District of Delaware alleging fundamental unfairness

in his-trial.- ‘In/a careful opinion: the District Court con-

sidered each t made by the petitioner and denied ‘the.

‘writ. We agreg that no error of constitutional dimension, ~

“no denial of dye process of law, has been shown...

The Order f the District Court will be affirmed.

A ‘True Copy:

Teste: * P Tor | |

| MY Clerk of the United States Court of Appeals _—

} >: fer the Third Circuit. Neen

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) Present : neeee. Hastie and ici, Cirowst oe

ie. Jadliqgnent |

- . This cause came on to be heard on the record from the

United States District Court for the ioc of Delaware

and was argued by counsel,

On consideration whereof, it is now here ordered and

adjudged by this Court that the order of the District

- Court, filed August 6, 1965, ‘be, and the . same is hereby ©

Vay ete with costs. .

ATTEST :

- Ipa O. Cresxorr

Clerk

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May 5, 1966

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Petition for. Silewie:

To THE Honorase, THE j > de OF THE Unrrep ‘Stares

Covrr or APPEALS FOR THE THmp Cmourr: ;

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aw Petition for Rehearing in the above mentioned matter

is respectfully filed by reason of the following:

- 1, That ‘on. May 5, 1966, your Honorable Gourt entered

a judgment affxming the Order of: the United States

District Court for the District of Delaware, —— a Writ

‘ of Habeas Corpus to your Petitioner.

4 That at the argument before your Honorable > Court

on April 19, 1966, many questions. were asked from the

-* Bench, which prevented the Petitioner from developing

_ ghis arguments fully.

8. That your Petitioner contended: that there had nivel !

an unlawful search and seizure and relied heavily on the

decision of the United States District Court. for the

Eastern District of Pennsylvania, United States ex rel.

.Manduchi v. Tracey, 233 F. Supp. 423 (1964) which held

that such search and ‘seizure is a oa The Opinion of |

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a5 indies Layton of the United States District Court for the |

District. of Delaware is clearly opposite to.that decision and.

your Honorable Court in its Opinion, did not rule which

case. is correct or incorrect concerning this very important

point.

4. The Petitioner was ides requested at, the hearing on

April 19,1966 to cite a case in support of the denial. of

cross-examination reaching constitutional dimensions.

Petitioner believes that United States v. Cardillo, 316

F. 2d 606 (2d Cir. 1963) is of oe eine weld the Peti-

tioner’s case.

WHEREFORE, for all. of the reasons advanced, -your Peti-

tioner respectfully requests a rehearing on these very im-

“portant matters and beliéves they are of sufficient impor-

tance to merit a rehearing. . *

Joun J. Krarzie,. JR.

. Attorney for Petitioner

(pee

Sur Petition for Rehearing

-- Present: Srauey, Chief Judge, and McLavonun, Katop-

NER, Hastie, Ganey, Smira and Freepman, Circuit

Judges.

‘ The petition for rehearing filed by Appellant in the

above éntitled case having been submitted to the judges’

who participated in the decision of this court and to all

the other available circuit judges of the circuit in regular

_active service, and né judge who concurred in the decision

having asked for rehearing, and a majority of the circuit

_ judges of the circuit in regular active service not having

voted for rehearing by the court in is) the petition for

rehearing is denied. »

‘By the Court;

Circuit Judge

Dated: May 31, 1966 Ae a

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No. 15,615

Joun J. Harxo, Jz., Appellant

| ve.

RaYMOND W. ieee

Pu aan to Rule 36(2) of this Court, it is OnpEREp that

issuance of the mandate in the above cause be, and it is

hereby stayed until June 30, 1966.

KatopNEr

Circuit Judge

Dated: June 8,1966

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- Exhibit No. 57

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND

FOR NEW CASTLE COUNTY

_ Criminal Action Nos. 637, 639, 1960

. Srate or DeLaware, Plaintiff’, —

| Ve» |

Joun J. Hato, Jr., Defendant. ~

AFFIDAVIT

State of Delaware,

County of New Castle, ss:

Be it remembered, that on this 23rd day of May, A. D.

1963, personally appeared before ‘me,.the Subscriber, a

- Notary Public for the State and County aforesaid, Fred-

- erick Knecht, Jr., who being by me duly sworn ——"

- to law, did depose and say:

1. That he is the defense counsel in the above case. _ |

2. That attached hereto as Exhibits A, B, C, D, E, F,

G, and H are newspaper articles which appeared while

the trial was pending in either the Wilmington Morning

News or the ne Journal on May 7, 8, 9, 10, and ad

1963. .

3. That he has been informed and therefore believes

that there were also radio broadcasts on local radio ‘sta-

tions containing the same information on the same dates.

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4. That he believes the information contained in the |

aforesaid newspaper articles was prejudicial to°the verdict

of the jury and would influence them if they either read

the articles or were informed of their contents by others,

and that the same is true of the aforesaid radio broadcasts,

since these articles all made mention of the fact that the

defendant: had previously been convicted of the charges’.

_ upon which he was then being tried.

5. That-the article appearing in the May 11, 1963, issue .

of the Evening Journal stated that the defendant was given

a new trial by the Delaware Supreme Court following. his

earlier convictions in the Court of Common Pleas and the

Superior Court on ‘‘téchnical grounds.’’

- 6 That the trial was not concluded until May 13, 1963.

_.% That the Court did not tell the jury not to read

newspaper articles or listen to radio broadcasts about the .

.trial while it was pending.

8. That he does not believe that a general admonition

by the Court, not to communicate with anyone during the

trial would :be construed: by jurors to be a prohibition

against reading the newspaper or listening to the radio

and that if the jurors saw an article in the newspaper or

heard a broadcast on the radio their natural curiosity,

absent an express admonition, would be to read the article

or listen to the broadcast.

-. 9. That he believes it was error for the enn not to

'. give-an express admonition to the jury not to read news-

paper articles or listen to radio broadcasts about the trial

' while it was pending, Sua sponte, '

FREDERICK KneEcut, JR.

‘Sworn to’ ‘and subiented before me the day and year

aforesaid. ow;

, (Signature illegible), —

Notary Public.

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oe EXHIBIT A |

Morning Netvs, Wilmington, Del., Tues., May 7, 1963 21

2D DRIVING TRIAL OPENS FOR HALKO |

‘Wilmington businessman John J. Halko J r. yesterday

went on trial for a second tithe on charges of driving under

the influence of liquor and driving with a revoked license.

Yesterday’s ‘Superior Court hearing, before a jury of

six men and six women, climaxed more than 18 months

of briefs, arguments and appeals.

A jury found Halko guilty i in October, 1961, of bite

under the influence of liquor early on the morning of Oct.

18, 1959.

_ SHortLy Arrer, the State Supreme Court ordered a

rehearing, saying trial Judge Stewart Lynch,.had erred |

in charging the jury that Halko had the burden of proving :

an alibi that he wasn ’t driving when arrested.

Jndge Lynch, who is hearing the second trial,. last De-

cember denied motions to suppress evidence gained by

- police who arrested Halko. Police said they found Halko

slumped over the wheel of his car outside the H&S Manu-

facturing Co. a plant he owns.

Yesterday the. state’s principal witness, William’ D.

‘Forestieri, 16 Winston ida Elmhurst, ‘spent nearly three

hours on the stand. —

Forestieri claimed he saw Halko driving erratically o1 on

. Boxwood Road and Maryland Avenue, Halko’s car struck

_ his car from the rear, and continued without. stopping.

Forrester: Sam he ‘followed Halko down Middleboro

Road to Valley Road, where the businessman turned off.

‘The, witness ‘said he then went to call police.

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Forestieri claimed he had two good looks at Halko,

once when Halko pulled to the side of the road in front

of the Conrad. School, and again at the Boxwood- Maryland

- intersection, after the collision.

- Halko’s attorney, Frederick Knecht, Jr., tried for over

two hours in the afternoon to shake Porcatias’ s testimony,

and his questions resulted in several sharp exchanges with

Judge Lynch.

Knecht referred often to the transcript of the first .

Superior Court trial,.at which Forestieri. testified, to check

his responses,

Forestieri is scheduled to resume the stand today for

- further questioning by Deputy Atty. Gen. sid Laird Stabler

Jr., prosecuting the case.

| EXHIBIT B

. 32 Evening Journal, Wilmington, Del. Tuesday, May Z, 1963

59 DRIVING CASE BEING RETRIED

A Richardson’ Park businessman is getting his second

Superior Court trial on charges of driving under the

influence of liquor and operating on a revoked license.

The retrial of John J. Halko Jr., president of H. & S.—

Manufacturing Co. of 15 Brookside Drive, began yesterday

‘before a jury of six men and six women. It follows more

than 18 months of briefs and arguments.

Halko was arrested early on the morning of Oct. 18,

1959,. after state police claimed they found: him slumped

over the wheel of his car outside his office. He was found

guilty in a jury trial two years later and appealed.

The State Supreme Court ordered, a new trial, holding

that President Judge Charles L.’ Terry, Jr., who is now

on the Supreme Court, had erred in charging the jury

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that Halko had the burden of proving an alibi that” he

- wasn’t driving when arrested. -

Judge Stewart Lynch, who is aoe at the second

trial, denied motions last December to suppress \évidence

found by police when they made the arrest:

The state’s principal witness, William D. " Forestieri

of Elmhurst, resumed testimony today. He was questioned

at length yesterday: by Frederick Knecht, Jr., defense

attorney, and Deputy Atty. Gen. W. Laird Stabler. Jr., the

. prosecutor.

- Forestieri claims his car was struck from the rear at .

Maryland Avenue and Boxwood Road and that Halko

drove off without stopping. Forestieri contends he pursued

Halko, but. lost assis of ad at Middleboro and Valley

Roads.

| EXHIBIT C

- Wilmington Morning News Wednesday, May 8, 1963

STATE DUE TO COMPLETE HALKO CASE

The state is expected to complete its case today against

a Richardson Park: businessman on trial a ‘second time in

Superior Court on charges. of driving under the ‘influence

of liquor. :

The defendant, John ‘ Halko J r., ‘sities of the |

H&S Manufacturing Co., 15 Brookside Drive, also’ is

charged with @driving on a revoked license. -

Deputy Atty. Gen. W. Laird Stabler Ir. v. said his case

will wind up with:completion of testimony by Franklin

Klair, a state trooper who arrested Halko early on the -

ee of Oct. 18, 1959.

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Halko’s attorney, Frederick Knecht Jr. x is expected to |

take at least the rest of the week to present his defense to

the jury of six men ‘and six women. - :

Yesterday, Klair and State Police Cpl. Coleman Stoops

testified to arresting Halko after finding him sir tah over

the wheel of his car outside his plant.

They told of identifying Halkos’ car by the license

number furnished earlier by‘ the state’s principal witness,

William D. Forestieri, who claimed Halko om his car.

and drove off without stopping.

Vides Stewart Lynch is hearing the case, ordered |

- retried by the State Supreme Court which held that the

first trial judge had: erred in his charge to the jury. |

At that trial, Judge Charles L. Terry, Jr., now of the

State Supreme Court, had charged that Halko had the

burden of proving an alibi that he wasn t driving when

arrested. :

_o (It was ‘eetiiaitile reported yesterday in the Morning

News that Judgé Lynch had presided at the first trial.) .

EXHIBIT D

30 Evening Journal, Wilmington, Del.

‘ Wednesday, May 8, 1963

HALKO DENIES DRIVING CAB AT TIME OF CRASH >

The defense began its case today in John J. Falko Jr.’s

“seeond Superior Court trial on.a charge of driving under

the influence of liquor. Ppa

Frederick Kneeht Jr., attorney for the Richardson

«Park businessman, fold the jury of six men and women

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* that he will produce witnesses to show ‘Halko was not

driving his car but was in his shop at 15 Brookside Drive

_on the night of Oct. 17-18, 1959.

- Knecht said testimony will come from people who

talked to-Halko at his shop or een with him over

the telephone.

State witness have testifi’d Halko drove away from

an accident at Boxwood Road and Maryland Avenue and

was found slumped over the steering wheel of his car out-_

side the H. & S. Manufacturing Co. of which he is president.

‘Halko was found guilty in his first trial but obtained

another after the State Supreme Court ordered a reversal

of verdict on technical grounds. J udge Stewart Lynch is

presiding at this trial.

Deputy Attorney General W. Laird Stabler, Jr. rested

the state’s case this morning. |

The last ‘state: witness, State Trooper Franklin Klair, .

had a busy time. ~ He-testified briefly for the defense after

his cross-examingtion as a state witness was concluded.

Then he was excused to go to another courtroom to testify.

in a civil case.

Asa défeaes witness, Klair testified he did not observe

' that Halko was handcuffed when the defendant was put

in a police car after being removed from-his own vehicle.

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EXHIBIT E

Morning News, Wilmington, Del. Thurs., May 9, 1963 ‘19 |

HALKO TRIAL ‘SURPRISE’ PROMISED

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‘Attersens for: John J. Halko, J r., Richardson Park

businessman on trial on drunken driving charges, say they

- plan to put three “surprise” 5 witnesses for name on the

stand today.

Frederick Kneeht Jr. yesterday said: he ‘aii three

persons who havé not testified in Halko’ 's. two previous |

_ trials to take the aval is ,

: Knecht said he e ts to complete his didien either |

this afternoon or tomorrow morning.

Hke PRESIDENT fH &S Manufacturing Co., 15 Brook- -

side Drive, -is also accused of driving on a revoked license.

He was arrested. early on the morning of Oct. 18; 1959.

Convicted in a trial. in New Castle County Court of

- Common Pleas, he appealed to Superior Court, where. a

' jury found him guilty. | es

| However, the State Supreme Court ruled, on appeal,

that the trial judge had erred in telling the jury ‘that

_Halko had to abi, an alibi that he hadn’t been driving the

car.

THE fires! S principal witness, William D. Forestieri,

has said that Halko struck his caf at the intersection of

Boxwood .Road and Maryland Avenue, and drove off

without stopping. - a

Yesterday, ‘Kriecht put five witnesses on the stand to.

refute the state’s case, being prosecuted by Deputy nisi

Gen. W. Laird Stabler Jr. >

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Wilmer (Rudy) Williams,- owner of a service ‘wield

_ at Boxwood Road and Maryland Avenue testified the lights

on his station were turned off at-the time Forestieri

- claimed he obtained a good look at Halko.

Forestieri also had testified to getting Halko’s license

number and going to a-cab stand from where it was

_ telephoned to Wilmington and county police.

However, ‘police officials testified that no ‘Menken number

was noted on radio logs for the morning in question.

:Witnesses for both police said procedure calls. for radio

operators to pote down license numbers broadcast over *

the air, but this is not always done.

‘ Two witnesses, one an H&S salesman, also. gleesa

Halko’s car in front the plant and unoccupied at the

hour the accident is supposed to have occurred. One said

\ : ee talked to Halko at the time.

| | ‘EXHIBIT FF .- |

90 Mornin News, Wilmington, Del. ’ Fri. , May 10, 1963

| _ BRUTALITY BY POLICE IS HALKO CLAIM

Police brutality. was charged. yesterday by J ohn J.

Halko Jr. in Superior Court testimony i in his: trial a second

7 time” on sap of aie while under . the influence of

rf —— - .* :

“Halko, President of H&S 3 Meineliioturing Co., ‘Richard-

son Park, testified. yesterday, on the -fourth day: of the

| * trial before Judge Stewart Lynch. Halko was the last

| _ - of 18 defense witnessés. whe case is as ae to go to ‘the

| jury today. ©

|.” He told the .court he was > Inula after his arrest

-| .and hospital records showed he reported he had: been

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- “mussed up.’? Bie R. C. Corbalis, a surgéon who was

serving as a resident physician at*The Memorial Hospital

.when Halko was treated, reported the patient, had multiple |

. abrasions and contusions on his arms, neck, chest and back.

Presumably the state will answer this Sisthneny today,

when five rebuttal witnesses will be. presented by a

‘Atty. Gen. W. Laird Stabler Jr.

Frederick ‘Knecht Jr.; Halko’ 8 attorney, said he may

- bring on: sur-rebuttal witnesses. :

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ne oe EXHIBIT @ ae

Wilmington Morning News Saturday, May 11, 1963

TRIAL, TOLD HALKO HURT IN CELL. FIGHT —

‘A state witness testified yesterday that John J. Halko

_ Jr. seemed unhurt when put into a cell after being arrested

Oct. 18, 1959, on aren: of driving under influence

of liquor. :

. Nearly’ five days of testimony. a more ‘in 20 wit- .

_ nesses ended in Superior Court, and the case is expected

m go.to the jury Monday.

Halko, President of the H &S Minttectering Co., 15

Brookside Drive, Richardson Park, is on i a second time

on the driving charges.

*A. previous conviction was set aside, after ‘the State

- Supreme Court ruled the first trial judge had erred in his

instructions to the jury. Ji _— ial ngs ‘is —

at this hearing.

Paris Steeves, Blktc ton, Md., said Halko. was put into a.

dell with him early-in the morning of his arrest, and

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‘ appeared unhurt. Steeves' added’ that Halko later got into

a fight with a man in the next cell. <,

Steeves said he, like Halko had been eet: on

drunken driving charges, ‘but: that his arrest was ‘several ,

hours earlier than the defendant’s,

. Halko has charged state police with beafing him up

while driving from where he was-arrested to state police

headquarters at Troop 2.

_ The arresting officers, Cpl. Coleman Stoops and-Franklin

_ Kilair, resumed the stand to deny beating Halko. The

state’s main witness, William D. Forestieri said he fol-

lowed the police car to the station and he saw no -beating.

Deputy Atty. Gen. W. Laird Stabler Jr., prosecuting

for the state, and Frederick Knecht, Jr., Halko’s attorney,

are expected to make their summations Monday morning. .

" EXHIBIT H

” Evening Journal Wituitngton, Del. Saturday, May 11 1963 |

' HALKO TRIAL RECESSED BY LYNCH :

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John J. Halko jr r.’s. trial on ‘leads driving charges ¥ was

recessed yesterday until 9 a.m. Monday. |

Superior Court Judge Stewart. Lynch, who is hearing

. the case with a jury of six men and six women, declared

‘the recess after the state presented testimony in rebuttal

of the defense, which closed its case Thursday afternoon.

Cross-examined yesterday by’ the prosecutor, Deputy

Atty. Gen. W. Laird Stabler Jr., Halko denied the state’s

charges and claimed he had been i in his office, the H & S -

Manufacturing Co. at 15 Broadside Drive, Richardson

2 Park, on the night of Oct. 17-18, 1959.

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The state claims Halko drove under the. influence of

" liquor and on a revoked license. Witnesses testified he was ~

found slumped over the wheel of his car outside ‘his

plant after a collision with another automobile at Maryland

Avenue and Boxwood Road.

Halko was found guilty in previous trials in Geaiaiens

Pleas and Superior Courts. On appeal to the state

Supreme Court, however, he obtained a new trial on

technical grounds. :

Exhibit No. 75

May 20, 1963

MEMORANDUM

To: President Judge Duffy and all pa of Superior

Court.

From: Stewart Lynch.

Mr. Knecht, in his Motion for. a New Trial, filed in

behalf of John Halko, Jr., has asserted error on my ‘part

in that*I did not admonish the J ury at any stage in the

case that its members were not to read any news article

appearing in the papers (and while his motion did not

include news accounts over the radio, it would seem to

me these _would be included) that referred to the leas

case.

I spent a great part of last eae morning examin- .

_ ing the law on the subject. Generally it may be found in

_ 23A.C.J.8.,. $§ 1361-1364b. Your attention is called ‘to the

cited material. and particularly the case of State v. Cole,

“114 A. 201 (Dei. Gen..Sess.), which case held the fact that:

a news article had been prejudicial to the accused was not

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| ground for a new trial, no motion having been made while

~ trial ‘was in progress that the Court do anything specific.

LS

The Court did, page 203, sua sponte, after the Court’s

attention had been brought.to the article, advise the Jury

it should disregard the news article, and, page 204, counsel

for accused did no.more.. Later he noted the publication of

the article as a ground for new trial, but the ground was

not upheld: I can’t recall, except for a time after the

‘Cole case was tried in the early 1920’s any -Court in

Delaware admonishing a Jury in a criminal case—other

than capital offenses—at any point -not to read“ news

articles. In the trial of the Halko case, at no point did -

Mr. Knecht bring to the Court’s attention anything on this

subject. Candidly, it would seem to me doing this would

more likely be a cause for a Jury’s curiosity to be aroused, |

than if the matter was left silent.

In a number of cases of late, however, the Courts

have said it was the duty of the Court to admonish the

Jury on this point—I suppose -as they,are empaneled and

_ as they are permitted to separate, t iat they should not

read news articles about the case and I would think this

would include radio news casts.

There is some elaborate discussion of the subject in-

U.S. v. Smith, 200 F. Supp. 885, Rev. 306 F.. 2d 596; 116

§.E. 2d 580, and in 116 S.E. 2d 580, 584, although. this

case may be explained on ‘a Georgia Statute or law.

Mr. Knecht contends there was such a news: article

which referred to a previous conviction for ‘‘drunken

driving’’ and_ this ‘prejudiced his rights’’. This was

considered reversible error in 79 8. Ct. 1171 (but I think

it is limited tot the Supreme Court’s power of ‘‘supervision”’

of federal cases and not on a constitutional basis) even

though ‘there had been a charge to the Jury that they

should only consider the evidence heard from the witness

- stand. I always give this charge and. gave it in Halko.

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You are all familiar with the Supreme Court’s lan-

guage in Draper, 1 Storey 390, 395, as to the effect to be ©

given ya charge that covers point of alleged error.

In the Smith case, ante, the District Court talks about

improper publicity being an invasion of a deferdant’s

constitutional right to a fair trial, if it includes reference

to @ prior conviction.

In time I will consider wn determine Mr. Knecht’s

motion. I did not see the news articles, and I have directed °

’ Mr. Knecht to make all news stories about the vase, while

‘in course of trial, ‘be made part of the record. he

“Some cases say it is for the Court to determine if |

prejudice arose because of the news articles; others say

‘the defendant must show he was prejudiced by the stories;

while others talk of a rebuttable presumption of prejudice

by such publicity, and one case says the ‘Court does not

_have to do it, sua sponte,

This opens the question of whether the Court should

reassemble the Jury during the remainder of the present ‘

term—I propose to do so on Wednesday—and make inquiry ~

(1) did they see the news stories and (2) were they .

influenced: in any wise in reaching their verdict because

they had read the story regarding the past conviction?

I invite your prompt comments and suggestions as

to this last course of action’; ‘see comment by Court of |

Appeals in 225 FP. 2d 220, 228, 229, where Trial Court read —

offensive news article to Jury.‘ Certainly, had Mr. Knecht

raised the question: at any time throughout the trial, I

consider J could have made inquiry and determined if any

Juryman ‘had read the article. If I could.have asked it

then, why not now? ets Sy aere!

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I realize I can * and eine not: inquire if the subject

was injected into Jury~Room discussions. My inquiries

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_ would concern what-only may have ee before the

case was submitted.

It would be tragic to heave to spend mie 5/6 ete

retrying the case—if through interrogation of the Jury it

could be first learned if they had seén any offensive ©

article and/or if any of them had been influenced thereby.

- It ‘would be preliminary to considering if my eharge

may have cured whatever prejudice could have resulted,

I suggest . the law clerks that we have check the Law

Review material that may be available so I could consider

the question by June 6th and then made a report at our

next .conference and recommend to you Judges as to how _—

far we must go—in preserving an accused’s constitutional

rights of a fair trial—in the matter of admonition ( a) as

to a Jury being empaneled; (2) as they are permitted to

’ separate at noon recesses and at close of day; and (3) by

way of instruction before the case is submitted.

We might consider | a reference to this in the Petit

Juror’s handbook.

SL/pp

cc: Attorney General

Frederick Knecht, Jr. , Esq.