This matter arises upon a petition for post-conviction relief filed by Carlton Blanchard pursuant to R.R. 3:10A-1 et seq. In his petition defendant asserted three grounds for relief: (1) he was denied a fair trial; (2) the sentence was excessive, and (3) the conviction was void because of the failure of the court to advise him of his right to appeal.
A hearing was held before this court at which time oral arguments were heard, defendant's testimony taken and written briefs submitted by both parties.
At the hearing defendant understandably abandoned and withdrew grounds No. 2 and 3 since there was no basis in law for these contentions. Furthermore, upon exploration by the court of defendant, individually, and his counsel, it became clear that the sole contention underlying defendant's application for post-conviction relief was the absence of a fair trial in the due process sense. This generalized ground was articulated in specific terms as trial error involving the admission of statements of codefendants at a joint trial which contained references to defendant. Defendant was convicted on April 22, 1964 of murder in the first degree with a recommendation of life imprisonment. Accordingly, he was on the same date sentenced to the New Jersey State Prison for a term of life and is currently confined there. His petition for post-conviction relief was filed on March 30, 1967.
Blanchard was tried with five other defendants in a joint trial involving a felony murder. Billy Green was also convicted and sentenced to life imprisonment. Clayton Anderson was convicted without a recommendation and sentenced to death. The other three defendants, Edmonds, Hightower and Williams, were acquitted.
At the post-conviction hearing defendant testified that some time before the period for appeal from his conviction had expired he conferred with his court-appointed attorney regarding a possible appeal. A considered decision was made at that time not to appeal, allegedly because of the attorney's advice that in the event of a reversal and new trial, defendant
would be exposed to a possible death penalty. This took place before the recent pronouncement of the Supreme Court in State v. Wolf, 46 N.J. 301 (1966), to the effect that a murder conviction with a recommendation of life imprisonment bars the prosecution from seeking a death penalty upon a retrial in the event of a reversal. Apparently, the attorney's advice was in accord with current law at the time. See State v. O'Leary, 110 N.J.L. 36 (E. & A. 1933), and State v. King, 106 N.J.L. 338 (E. & A. 1930); Stroud v. United States, 251 U.S. 15, 18; 40 S. Ct. 50, 64 L. Ed. 103 (1919); Fay v. Noia, 372 U.S. 391, 396, 440; 83 S. Ct. 822, 9 L. Ed. 2 d 837 (1963). In any event, it is manifest that defendant, after consultation with counsel, deliberately concluded not to take an appeal and so informed his counsel in writing at the time.
On the other hand, his two codefendants, Anderson and Green, both appealed to the Supreme Court and succeeded in reversing the convictions and securing new trials. State v. Blanchard, 44 N.J. 195 (1965), and State v. Green, 46 N.J. 192 (1965). Both reversals stemmed from a finding by the Supreme Court of prejudicial trial error by virtue of the admission of the statements of five codefendants at the joint trial which contained references to each of the appealing defendants. Although the trial judge had repeatedly instructed the jury that each statement was admissible only against the individual defendant who had made it and could not be used against any of the codefendants, the Supreme Court found in each case that the statements of the codefendants were "so honeycombed with references to his participation in the crime that it would have been psychologically impossible for the jury to follow the judge's instructions and ignore these statements." State v. Green, supra, at p. 195. Hence, it was held that in the circumstances of this trial, with the multiple defendants and multiple statements involving cross-references to the other participants, the cautionary instructions of the trial judge, though clear and explicit and though repeated on many appropriate occasions, was ineffectual from a psychological
standpoint and therefore resulted in sufficient prejudice to warrant reversal. A new pretrial procedure was suggested for cases involving statements of codefendants in order to avoid similar trial pitfalls in the future. State v. Green, 46 N.J. 192, 198 (1965); State v. Young, 46 N.J. 152, 158 (1965).
It is noteworthy that the reversals in Blanchard and Green marked a new approach in the law of the State of New Jersey, for it was accepted prior to that time that such statements by codefendants were admissible in a joint trial in the discretion of the trial judge, provided that their objectionable hearsay effect was ameliorated by prompt and emphatic cautionary instructions to the jury that each statement was admissible only against the declarant. Cf. State v. Murray, 33 N.J. 393, 397 (1960); State v. Tassiello, 39 N.J. 282, 296 (1963); State v. Rios, 17 N.J. 572, 585 (1955); State v. Rosenberg, 37 N.J. Super. 197, 203 (App. Div. 1955); State v. Johnson, 31 N.J. 489, 506 (1960); Delli Paoli v. United States, 352 U.S. 232, 243, 77 S. Ct. 294, 300, 1 L. Ed. 2 d 278 (1957).
A review of the trial record in the case at bar reveals that there were introduced into evidence, over the appropriate objection of defendant Blanchard's counsel, not only the statement of Blanchard but also the statements of Anderson, Green, Hightower, Edmonds and Williams. Throughout the trial, however, the trial judge repeatedly cautioned the jurors as to the limiting evidential effect of each statement and its applicability to Blanchard, and he again instructed them on the subject in his final charge.
Nevertheless, it is evident from a reading of the questioned exhibits that all the statements of the codefendants made reference to defendant Blanchard, with some inculpating him more than others in the joint crime which involved a robbery murder. As a consequence, he had the same legal basis for potential reversal of his conviction as defendants Anderson and Green. Despite his decision not to exercise his right of appeal within the time limited by our rules, defendant now seeks a new trial on the ground that the
prejudicial error found by the Supreme Court in the companion cases of his codefendants resulted in such a denial of fundamental fairness in the constitutional sense that he is entitled to relief on this post-conviction application.
Post-conviction relief is not a substitute for the appellate process. R.R. 3:10A-3 provides in part:
"Such remedy is not a substitute for appeal from conviction or for motion incident to the ...