For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor and Hall. For reversal -- None. The opinion of the court was delivered by Hall, J.
This is a post-conviction relief proceeding brought under R.R. 3:10A. The defendant was convicted by jury verdict in December 1955 of second degree murder for the killing of his wife and was sentenced to 25 to 30 years' imprisonment. The conviction was affirmed by this court on direct appeal. 22 N.J. 236 (1956). No further review was sought or collateral attack made until the present petition was filed on May 28, 1965, one month after the decision of the United States Supreme Court in Griffin v. State of California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2 d 106.
At the trial and on appeal the defendant was represented by privately retained counsel, since deceased, of long experience in criminal matters, as he is in the present proceeding. The jury was instructed that murder in the first degree, murder in the second degree and manslaughter were legally
possible verdicts under the proofs. No confession or inculpatory admissions had been made and the State's case was circumstantial, but strong. He did not take the stand and comment on this failure to testify was made by the prosecutor in summation and in the judge's charge as was permissible under the law of this State at the time. On the appeal neither the right to comment nor the form of the instruction thereon was challenged. The prosecutor's comments were assailed, not in this context, but, along with other portions of the summation, as going so far beyond the bounds as to deprive the defendant of a fair trial. This court found specifically that they did not and indeed held that there was no indication in any aspect of the prosecution "of an injustice on the basis of fundamental fairness requiring correction." 22 N.J., at p. 247.
The petition for post-conviction relief asserted numerous grounds, including especially retroactive application of Griffin, which held that comment by the prosecution or instructions by the court on an accused's failure to testify is forbidden by the self-incrimination protection of the Fifth Amendment, applicable to the states through the Fourteenth Amendment. The State moved to dismiss the petition on its face, contending in effect that, in the light of the trial record and the issues raised, or which could have been raised, on the direct appeal, the allegations were legally and factually insufficient to state any recognizable claim for post-conviction relief within the criteria set forth in R.R. 3:10A-2, 3:10A-3, 3:10A-4 and 3:10A-5. See State v. (Edgar) Smith, 43 N.J. 67, 74 (1964), cert. denied, 379 U.S. 1005, 85 S. Ct. 731, 13 L. Ed. 2 d 706, rehearing denied 380 U.S. 938, 85 S. Ct. 945, 13 L. Ed. 2 d 826 (1965). After full argument, the trial judge granted the motion, with specific findings on all the claims asserted. The defendant's appeal from the resultant judgment, R.R. 3:10A-12, comes directly to us since the indictment was for murder. R.R. 1:2-1(c).
We are satisfied that the trial judge was correct in concluding that none of the grounds alleged in the petition was
the appropriate subject of post-conviction relief. Only two are worthy of specific mention.
The trial judge held that the doctrine of Griffin v. State of California should not be given retroactive effect. As of the time of the argument before him, we had held that that decision rendered unconstitutional our prior law permitting comment on a defendant's failure to testify, but had said in the same case that we "express no opinion as to the applicability of Griffin to a collateral attack." State v. Lanzo, 44 N.J. 560, 564 (1965). When the present appeal was argued, the defendant again contending that retroactive application should be accorded, a case was pending in the United States Supreme Court in which the very question was involved. The case has since been decided. Tehan v. United States ex rel. Shott, 86 S. Ct. 459 (January 19, 1966). The court was there concerned with an attack by federal habeas corpus on an Ohio state court conviction, in the trial of which comment on the defendant's failure to testify had been permitted pursuant to that state's law. All avenues of direct review had been foreclosed almost two years before Griffin. The decision held that the rule of Griffin need not be applied where the state judgment of conviction was rendered, the availability of direct appeal in the state court system had been exhausted, and, if such appeal had been pursued, the time for petition for certiorari to the United States Supreme Court had elapsed or such a petition been finally denied, before April 28, 1965, the date of the Griffin opinion. See 86 S. Ct., at p. 461, n. 3. The conclusion is precisely pertinent to the question in the courts of this State and we will not give retrospective application to Griffin where, as here, the chronology fits the specified pattern.
The other ground for relief deserving comment is that the defendant was not afforded the opportunity to speak in his own behalf at the time of sentencing, in violation of that portion of then R.R. 3:7-10(c) which read: "Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present
any information in mitigation of punishment."*fn1 The contention is not that the alleged error requires reversal of the conviction and a complete new trial, ...