For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.
On March 4, 1957 Victoria Zielinski, a 15-year-old girl, was murdered. Defendant was convicted of the crime and sentenced to death on June 4, 1957. The judgment was affirmed on June 25, 1958. State v. Smith, 27 N.J. 433 (1958). On August 8, 1958 defendant moved for a new trial. His motion was denied and we affirmed the order on May 4, 1959. State v. Smith, 29 N.J. 561 (1959). The United States Supreme Court denied certiorari on October 19, 1959. Smith v. New Jersey, 361 U.S. 861, 80 S. Ct. 120, 4 L. Ed. 2 d 103.
On November 19, 1959 defendant applied to the United States District Court for a writ of habeas corpus. The proceedings there were concluded by an opinion dated January 18, 1962. United States ex rel. Smith v. New Jersey, 201 F. Supp. 272 (D.N.J. 1962). The United States Court of Appeals affirmed on July 24, 1963 and denied a rehearing on September 9, 1963. 322 F.2d 810 (3 Cir. 1963). Certiorari was denied by the United States Supreme Court on February 17, 1964. Smith v. New Jersey, 376 U.S. 928, 84 S. Ct. 678, 11 L. Ed. 2 d 623.
The United States District Court in the proceedings just referred to declined to consider eight points on the ground that defendant had not presented them to the state courts and hence had not exhausted his state remedy. On March 18, 1964 defendant petitioned the trial court for post-conviction relief, asserting the points just mentioned, together with still others. Defendant asked that counsel be assigned and that application was granted. Assigned counsel added additional claims. The trial court denied relief after argument, and that action is now before us for review.
At the outset we refer to defendant's efforts to dismiss assigned counsel. The phenomenon is not new. See State v. Rinaldi, 58 N.J. Super. 209, 214 (App. Div. 1959), cert. denied 366 U.S. 914, 81 S. Ct. 1089, 6 L. Ed. 2 d 238 (1961). Too often defendants who petition for counsel on the plea that
they are indigent and unable to represent themselves seek to supervise assigned counsel and even question his integrity if his performance does not satisfy the defendant's critical eye. From time to time counsel so situated understandably ask to be relieved. It is our policy to refuse such requests. We appreciate that untutored defendants insist upon urging points which are so frivolous as possibly to reflect upon an attorney who presses them, but counsel may be assured the courts understand and will not charge inanity to them. Our rule dealing with post-conviction relief provides in R.R. 3:10A-6(d):
"The court will not substitute new assigned counsel at the request of defendant while assigned counsel is serving. Assigned counsel may not seek to withdraw on the ground of lack of merit of the petition. Counsel should not be reluctant to advance any grounds insisted upon by defendant notwithstanding he deems them without merit."
Counsel of course may properly acknowledge that a point is contrary to existing law and leave it to the court to decide whether there should be a departure from it.
In addition, in these situations we permit a defendant to file his own brief as well. Accordingly when we denied defendant's motion to dismiss assigned counsel (we need hardly add that defendant's complaint was wholly unwarranted), we informed defendant that he could file an additional brief and adjourned the argument date to that end. Defendant did file his own brief of 25 pages and after the oral argument sent a letter commenting upon the course of the oral argument as someone reported it to him. We understand defendant applied to the United States District Court for the District of New Jersey for an order restraining assigned counsel from appearing before us, which application the District Court denied.
We note that in the brief defendant himself filed he advances the question "Does this Court have the authority to deny a person the right to retain private counsel, or act as counsel for himself, and to force upon him the counsel of
the Court's choice?" The question is so phrased as to suggest that defendant had retained counsel of his own. No such representation was made in defendant's efforts to have assigned counsel relieved and no such assertion is affirmatively made in defendant's own brief. At the oral argument, assigned counsel stated in response to our question that he had no information to that effect.
Before dealing with the individual points, we should note two principles, one or the other of which disposes of most of the questions raised. One principle is that a post-conviction proceeding may not be used as a substitute for an appeal from the judgment of conviction. All alleged errors inhering in a trial must be asserted in a direct review from the conviction, the sole exception being an error which denies fundamental fairness in a constitutional sense and hence denies due process of law. The second principle is that an issue, even of such constitutional dimensions, once decided, may not be relitigated. These principles are stated in R.R. 3:10A-2, 3, 4, and 5.
(1) The first question is whether petitioner was unlawfully arrested. There are a host of answers. The arrest was plainly proper; probable cause existed. Moreover the legality of the arrest as such has no bearing upon the validity of the conviction. And if the voluntariness of the confession is sought to be questioned on the basis of the arrest, the answer is that the validity of the confession has been fully adjudged both in the state and federal courts.
(2) Defendant complains that objections to the trial court's charge were not taken before the jury retired to consider its verdict as provided in R.R. 3:7-7(b). We cannot detect the grievance. No objection made by defendant to the charge was rejected on the ground that it was made after the jury had retired. Moreover this complaint, whatever its precise content may be, had to be urged on the main appeal.
(3) The trial court submitted the case to the jury on the theory of a "willful, deliberate and premeditated killing."
N.J.S. 2A:113-2. The trial court overruled the State's position that the case should also go to the jury on the theory of a felony-killing in the course of an attempted rape. The complaint now is that the trial court should have affirmatively instructed the jury that that thesis was not before it. There was no request to charge or objection on behalf of defendant. We see no room for misunderstanding since the trial court, after reading the statute, expressly confined the issue to the single theme. Finally, the issue is not a constitutional one and could have been advanced only on direct appeal.
(4) The next point appears to be that testimony offered in the absence of the jury on the voluntariness of the confession was not repeated in the presence of the jury. The opportunity to do so was not denied defendant. His then counsel, a seasoned lawyer with much experience in criminal matters, made a policy decision not to repeat it. The reason probably was that voluntariness was not really disputed. We see no constitutional question and hence the issue is foreclosed because it was not raised on appeal. We add that if the complaint is ...