The opinion of the court was delivered by: WHIPPLE
This is an application for the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq., which the court has permitted the petitioner, David Guy Baldwin, to file in forma pauperis. Petitioner is currently confined to the New Jersey State Prison, Trenton, New Jersey, where he is serving a term of life imprisonment pursuant to a conviction of first degree murder. This sentence was imposed by the Ocean County Court on May 28, 1965 after trial and conviction by a jury verdict.
The petitioner appealed his conviction directly to the New Jersey Supreme Court pursuant to R.R. 1:2-1(c) (now R. 2:2-1(a)(3)) which affirmed the trial court. State v. Baldwin, 47 N.J. 379, 221 A.2d 199 (1966). Subsequently, the petitioner filed a petition for a writ of certiorari to the United States Supreme Court which denied same on December 5, 1966. Baldwin v. New Jersey, 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966). On March 8, 1967 an order was entered in the United States District Court,
stating that the petitioner's application '* * * for a Writ of Habeas Corpus, or as characterized by applicant to review the denial by the Supreme Court of the United States to grant a writ of certiorari, be and the same is hereby dismissed.' The petitioner had not at that juncture exhausted the available post-conviction relief remedies provided for by R.R. 3A:10-1 et seq., N.J.S.A. and as required by 28 U.S.C. § 2254.
Subsequently, an application for postconviction relief was filed in the Ocean County Court and denied on October 30, 1967. Thereafter, the petitioner filed an appeal with the Superior Court (Appellate Division) and on June 24, 1968, the grounds previously enumerated were held to be lacking in merit in an unpublished per curiam opinion, (Docket No. A-348-67). A petition for certification to the New Jersey Supreme Court was denied on October 1, 1968. Therefore as to the grounds presented in this petition, the petitioner has sufficiently exhausted his state remedies as required by 28 U.S.C. § 2254. See Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
Before discussing the grounds urged by petitioner, a review of the facts as disclosed by the record is necessary. During the course of the trial and out of the presence of the jury, one Richard Cordine (Cordine) was called as a witness for the State concerning conversations had in the Ocean County Jail between petitioner and Cordine while they occupied neighboring cells. Cordine was in the Ocean County Jail being held on a charge of assault and battery and was also under sentence or about to be sentenced for an offense in Somerset County. Cordine originally met the petitioner while both were in the Ocean County Jail beginning in October of 1964; however, in January and February of 1965, Cordine was transferred and confined to the New Jersey State Hospital, Vroom Building in Trenton, apparently for treatment of emotional and mental problems. During this time period one Detective McCulloch (McCulloch), having learned in some way not revealed by the record that petitioner had conversations with Cordine about the case, approached Cordine and sought his aid in an attempt to gather incriminating evidence against petitioner. Cordine declined at first to co-operate but subsequently agreed to assist the detective apparently induced to do so as a result of discussions with the prosecutor's office. Cordine testified, out of the jury's presence, that during the time period subsequent to his return from the Vroom Building, he spoke with the petitioner nearly every day in order to elicit information regarding the pending murder indictment but that many of these aforementioned conversations were initiated by the petitioner.
The trial transcript further reveals that Cordine, in the jury's presence, gave testimony that did not constitute a direct admission of guilt but inculpated the petitioner inferentially by attributing two statements to him. The first statement in response to a suggestion by Cordine that petitioner plead guilty to second degree murder was:
"Well it is their burden to prove beyond reasonable doubt that I did kill this man * * * right now I feel no immediate danger, but in the event that they should ever get warm, why, I just might ask for that if they would permit me."
The second statement attributed by Cordine to the petitioner was:
'That it seemed to be my luck that it was the first day of bow and arrow season that they discovered the body." State v. Baldwin, supra, 47 N.J. at 399-400, 221 A.2d at 202.
At the trial Cordine attempted to testify to his conversations with petitioner both prior to and then subsequent to his contact with the prosecutor's office. The trial judge was duly concerned whether the circumstances heretofore related were distinguishable from Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964) and whether Cordine was able to testify from his recollection as to what petitioner had told him before he went to the Vroom Building as opposed to what was related to him by petitioner after he was returned to the Ocean County Jail.
After a great deal of thought and consideration the trial judge admitted into evidence only that which petitioner had related to Cordine prior to the latter's consenting to aid the prosecutor's office.
Thus, the trial judge concluded that Massiah v. United States, supra, precluded the eliciting of any conversations after the interposition of the prosecutor's office, but that Cordine could testify to any conversation prior to his initial contact with the prosecutor's office.
The first and second grounds for relief, considered together, basically allege that the admission into evidence of any inculpatory statement deliberately elicited by government officials after indictment and in the absence of counsel violates petitioner's Fifth and Sixth Amendment rights. The petitioner contends that the thrust of Massiah v. United States, supra, is that it '* * * Creates a blanket prohibition against receipt into evidence of any inculpatory statement by a defendant (Baldwin) when this statement has been made postindictment, in the absence of an attorney, and when the statement is elicited either directly or indirectly by a law enforcement officer * * *. The trial judge in the case at bar by fixing an arbitrary point in time other that the time of the indictment, circumvented the holding in Massiah and emasculated the general policy considerations which effectuated the decision in Massiah. The next major case toward the fashioning of such a rule is Escobedo v. Illinois, 378 U.S. 478 (84 S. Ct. 1758, 12 L. Ed. 2d 977) * * * (1964). The penultimate case, of course, is Miranda v. Arizona, 384 U.S. 436 (86 S. Ct. 1602, 16 L. Ed. 2d 694) * * * (1966), which was decided after trial in the instant case and hence, can have no application here.'