circumstances for the protection of the accused, the jurors and in the interests of justice. None of these elements was present. The mere possibility that newspaper accounts may be read by jurors during a trial is not such an extraordinary circumstance; otherwise, every jury should be sequestered. Trial Judges invariably admonish jurors to avoid outside influences during a trial, including the news media. It is only wishful thinking to believe that when jurors read newspapers that they may not see and read an account of the trial, in spite of an admonition not to do so; that they ignore the admonitions of the Court not to permit such accounts to affect their impartiality and ability to afford the defendants a fair trial is most unlikely. When a Court has properly instructed jurors to disregard news accounts and not to discuss the case with others, it may be presumed that jurors under oath and accepted as impartial will continue to be so. Proper and sufficient continuing instructions were given to the jury in the present case. The petitioner has not presented, nor is there any indication in the record that the jurors had read any of the newspaper accounts during trial. The bare allegation of prejudicial publicity has no basis in the record.
The claim that the Court abused its discretion in denying the motion for an adjournment of the trial requires little discussion. The basis of the request was that if the petitioner offered himself as a witness he would be required to disclose his prior conviction for murder, which was then on appeal. The adjournment requested was until after a hoped for reversal of petitioner's conviction by the New Jersey Supreme Court, which in fact did not occur. The record indicates that no reference was made at any time during the trial to the prior conviction; therefore, the anticipated dilemma asserted by the petitioner never materialized. When the petitioner personally addressed the Court on this subject at the pretrial hearings, he also alluded generally to the need of more time for preparation; no such request was pressed by counsel and the record indicates that an able and vigorous defense was presented. Furthermore, the record also discloses that the trial did not commence until one month thereafter, providing ample time for preparation of a defense to the crime charged.
4. Admission of testimony regarding stolen "getaway" car.
There was testimony, by two persons present during the holdup, which identified an automobile in which the individual who committed the holdup left the premises. This car was found shortly after the occurrence in an area where residents saw a man -- not identified -- enter another car. The second car was described as to make, and stated to have Delaware license plates; and that it was similar to a car owned by the petitioner. The owner of the first car testified that it was not until he was called by the police that he learned that his car was missing from where it had been parked. He also testified that he did not know the petitioner and had not loaned the car to him. A subsequent expert witness identified a latent thumb-print removed from the car as belonging to the petitioner.
The petitioner claims that this testimony of the car owner indicated that the car had been stolen, and that the admission of such testimony, as evidence of a previous crime for which he had not been convicted, constituted prejudicial error. State v. Kociolek, 23 N.J. 400, 129 A. 2d 417 (1957); United States v. Chibbaro, 361 F.2d 365, 379 (3 Cir. 1966). Although no objection was made to the offered testimony, and while the admissibility of evidence is generally a matter of appellate and not collateral review, the issue should be considered on habeas corpus if there is a serious question of fundamental unfairness, United States ex rel. Saunders v. Myers, 276 F.2d 790 (3 Cir. 1960); or if there is a reasonable possibility that the evidence complained of might have contributed to the conviction; Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1965).
The only evidence against the petitioner was as set forth above in the summary of the testimony. It was incumbent upon the State to show that the thumb-print was not placed on the car during its proper use with permission of the owner. That is precisely what the State offered by way of proof. Such proof was proper.
Assuming, arguendo, that the offer of such testimony did have for its purpose a showing that the crime of auto theft had been committed, it would have been admissible as an exception to the general exclusionary rule that evidence of other crimes is irrelevant upon a trial for a particular crime, unless logically connected as an integral part thereof. As simply stated in Kociolek, supra, 23 N.J. at page 418, 129 A. 2d at page 427: "one crime may have been perpetrated as a preparation for, or means of committing, concealing or escaping from another."
5. Double Jeopardy.
The petitioner claims that the imposition of the sentence of 12-15 years for robbery (N.J.S. 2A:141-1) and an additional consecutive sentence of 3-5 years for committing the robbery while armed (N.J.S. 2A:151-5) violated his guarantee under the Fifth Amendment against being "twice being put in jeopardy of life and limb". The New Jersey Courts have held that these statutes do not constitute multiple punishment for the same offense. State v. Hodgson, 44 N.J. 151, 207 A. 2d 542 (1965); State v. La Vera, 35 N.J. Super. 256, 113 A. 2d 829 (App. Div. 1965); State v. Buffa, 65 N.J. Super. 421, 168 A. 2d 49 (App. Div. 1961). However, since it was held in Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), that the guarantee of the Fifth Amendment against double jeopardy is enforceable against the States pursuant to the Fourteenth Amendment, and such holding is to be applied retroactively, North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), we must look to federal standards to determine whether there was double jeopardy in the Constitutional sense. The identical proposition was advanced in our Court of Appeals but held not to constitute "double jeopardy". United States ex rel. Mertz v. New Jersey, 423 F.2d 537 (3 Cir. 1970).
6. Failure of Prosecutor to produce defense witness.
At the hearing of one of a number of pretrial motions, request was made that the State procure the attendance, as defense witnesses, of the petitioner's brother-in-law and sister-in-law (Mr. and Mrs. Neeble), who resided in Illinois. The Court directed the Prosecutor to do so and such direction was incorporated in an order, a copy of which is attached to the present petition. Mrs. Neeble, petitioner's sister-in-law, appeared and testified that she and her husband left for their home in Illinois between 2:00 and 3:00 P.M. on August 12, 1965. On cross-examination, she admitted that she had previously stated to an investigator for the State that they had left about 1:00 P.M. The trial transcript contains no reference to the absence of Mr. Neeble nor was any objection made because of his absence.
The petitioner has urged that the State's failure to produce the witness constituted a prejudicial suppression of evidence. State v. Vigliano, 50 N.J. 51, 232 A. 2d 129 (1967). There is no allegation that the Court's order was ignored. Although Mr. Neeble did not, Mrs. Neeble did appear. Art. 1, par. 10, N.J. Constitution 1947, does not constitute a guarantee by the State that witnesses will be produced at the trial. State v. Jones, 57 N.J. Super. 260, 263, 154 A. 2d 640 (App. Div. 1959). A similar provision of the Sixth Amendment does not require that the government be successful in making witnesses available upon a defendant's demand. What is required is that there be due diligence in a good faith attempt to produce the witness. Maguire v. United States, 396 F.2d 327 (9 Cir. 1968), cert. den. 393 U.S. 1099, 89 S. Ct. 897, 21 L. Ed. 2d 792. More is required of the petitioner than the supposition that the non-appearance of a witness constituted a suppression of evidence. Mrs. Neeble is the sister of the petitioner's wife. It can safely be assumed that the reason for the failure of Mr. Neeble to appear was known to her and to the petitioner. Yet, in no proceeding from the time of the trial down to the present has the petitioner made any allegation that a good faith attempt was not made to produce the witness.
Finally, it is highly doubtful that Mr. Neeble could have furnished testimony which would have been very helpful to the petitioner. Although the alibi testimony of Mrs. Mayberry's brother, Lloyd Simmons, and that of the petitioner's brother, Orville, remained uncontradicted as to when they had departed from the home of the petitioner, the remaining alibi testimony was attacked with some success. As indicated above, the testimony of Mrs. Neeble had, at the very least, been neutralized. Assuming that Mr. Neeble could have testified to a departure time which would have supported the alibi, such testimony would probably have been susceptible to similar neutralization or other challenge because of his wife's original inconsistent statement of a 1:00 P.M. departure.
7. Interview of Defense alibi witnesses.
Defense witnesses Dutton and Wehry testified that the petitioner was at his home on August 12, 1965 at a time of day which would have made it impossible for him to have been at the scene of the holdup at the time of its commission. Primarily, their recollection of the exact date was related to the date of delivery of a new car to Wehry. Their testimony was not conclusive and was rebutted by evidence that the car was not delivered until six days after the critical date. The rebuttal testimony was given on Friday afternoon. Defense counsel pleaded surprise and a requested adjournment was granted over the weekend to ascertain from the purchaser (Wehry) whether his records would show different purchase and delivery dates; or, in the alternative, whether he may not have been driving a new car loaned by the seller while awaiting delivery of his car.
At the resumption of the trial, a motion was made for a mistrial. It was based on the fact that during the week-end recess an investigator from the Prosecutor's Office had interviewed both Dutton and Wehry at a Delaware State Police Office, where they had been requested to appear by the State Police. During argument on the motion, defense counsel stated that the witnesses had not been threatened or intimidated; and that the purchase records of the car agency were shown to them to indicate that they were mistaken in the date to which they had testified. There was a representation that someone had advised the witnesses that a change in testimony might subject them to a charge of perjury. Defense counsel stated he would have furnished similar advice, if asked. This did not constitute a threat or intimidation. The only asserted ground of the motion was that the Prosecutor "overstepped the bounds of fair play" in interviewing the witnesses at this stage of the proceedings. There was no Constitutional infirmity here.
There is no prohibition against interviewing any prospective witness in a civil or criminal case. The witness is not required to submit to the interview, but may do so. The purpose of the requirement that a defendant who intends to rely on an alibi must submit the names and addresses of the witnesses (R. 3:11-1, formerly R.R. 3:5-9) is "to avoid surprise at trial by the sudden introduction of a factual claim which cannot be investigated unless the trial is recessed to that end." State v. Baldwin, 47 N.J. 379, 388, 221 A. 2d 199, 204 (1966). Whether these witnesses had been interviewed prior to trial was not disclosed; however, the record does show that the State effectively rebutted their testimony. If there was to be a change in their testimony, the State had a continuing right to investigate what factual claim would be made.
During the argument on the motion for a mistrial, the trial judge disclosed that the Prosecutor had inquired whether there was any legal obstacle to an investigation of the testimony of the two alibi witnesses and that he informed the Prosecutor that there was none. The petitioner now claims such ex parte action by the court was fatally prejudicial. Although it may not be advisable to seek or furnish such an "advisory opinion" under certain circumstances, in the present case there was not such a judicial intrusion which might have prejudiced any right of the petitioner to a fair trial. The Constitution of the United States guarantees a fair trial, not a perfect one. Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 97 L. Ed. 593 (1953).
At the close of the argument on the motion, defense counsel advised the Court that the defendant wished to make a "representation" that the witnesses had been intimidated. The record indicates that, since the defendant was in confinement, the representation would of necessity have been something told to him and clearly inadmissible. Furthermore, no offer was made to present witnesses, or other proof; consequently, there was no denial of an offer of proof in contravention of the principles set forth in State v. Johnson, 46 N.J. 289, 216 A. 2d 392 (1965). The Court's refusal to permit the representation was proper.
8. Fingerprint evidence.
The final ground urged by the petitioner is that he was arrested in Chattanooga, Tennessee, upon the execution of an invalid arrest warrant issued by an Acting Magistrate of Cherry Hill Township, N.J.; and that fingerprints taken during a subsequent illegal detention in Cherry Hill violated his rights under the Fourth Amendment. Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969); Bynum v. United States, 104 U.S. App. D.C. 368, 262 F.2d 465 (1958).
A summary of pertinent facts follows:
On September 4, 1965 a complaint was filed in the Cherry Hill Township Municipal Court charging the petitioner with the unlawful possession of an automobile (N.J.S. 2A:139-1)
on August 27, 1965. The offense set forth in that complaint was subsequent to and did not relate to the offense of armed robbery committed on August 12, 1965 which is the subject of this petition.
On the basis of the above unlawful possession complaint, a warrant of arrest was issued by an Acting Magistrate who was the Magistrate of Brooklawn Borough. The arrest was made in Chattanooga, Tennessee on September 5, 1965 by a Chattanooga city policeman accompanied by three New Jersey police officers. The petitioner was taken to a Chattanooga Court on September 6, 1965 and held without bail for extradition proceedings. The petitioner waived extradition the same day and arrived at Cherry Hill, N.J. on September 8, 1965, at which time he was fingerprinted.