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May 13, 1971

UNITED STATES of America ex rel. Edgar H. SMITH
Howard YEAGER, Warden, New Jersey State Prison, Trenton

The opinion of the court was delivered by: GIBBONS

GIBBONS, Circuit Judge.

Petitioner Edgar Smith is before the court seeking a writ of habeas corpus. His petition was filed in 1965. He is confined in the New Jersey State Prison at Trenton awaiting the execution of a death sentence imposed by the Bergen County Court on June 4, 1957, after a jury trial for murder. Since that time petitioner has sought unsuccessfully to have the conviction set aside. *fn1" Heretofore this court, without an evidentiary hearing on the allegations of the petition, relying on the contents of the state court trial record, declined to issue the writ. The Third Circuit Court of Appeals affirmed, holding that petitioner's attorney had waived a federal evidentiary hearing. United States ex rel. Smith v. Yeager, 395 F.2d 245 (3 Cir. 1968). The Supreme Court reversed. Smith v. Yeager, 393 U.S. 122, 89 S. Ct. 277, 21 L. Ed. 2d 246 (1968). The case was then remanded to this court for reconsideration of petitioner's request for such a hearing. Following the remand petitioner's attorney, relying on Greenwald v. Wisconsin, 390 U.S. 519, 88 S. Ct. 1152, 20 L. Ed. 2d 77 (1968), urged that even on the state court record the totality of circumstances surrounding the taking of a statement by petitioner used in evidence against him at the trial compelled the issuance of the writ. On August 3, 1970, this court ruled that it was bound by a prior ruling of the Third Circuit *fn2" upholding the conclusions of voluntariness based on the state court record.

 That state court trial was the only previous opportunity petitioner had to present evidence on his Fifth Amendment claim. On November 30, 1970, this court ruled that evidence crucial to the adequate consideration of that claim was not fully developed in that record, and that an evidentiary hearing must be held. 28 U.S.C. § 2254(d)(3); Townsend v. Sain, 372 U.S. 293, 312, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). The November 30, 1970, opinion also delimited the scope of the factual issues to be determined. At issue is the voluntariness under federal constitutional standards of all admissions by petitioner which were used against him in the course of his state court murder trial. These admissions may be divided for purposes of discussion into the following categories:

1. Verbal admissions made by petitioner while in the company of various police officials operating at and out of the police headquarters, Mahwah, New Jersey, between the time he was taken into custody at Ridgewood, New Jersey at about 11:30 p.m. on March 5, 1957, and the time he was taken to the office of the Bergen County Prosecutor in Hackensack, New Jersey, at about 8:30 a.m. on March 6, 1957. Various police officers testified at the trial to such admissions.
2. Verbal admissions made during petitioner's interrogation at the Prosecutor's office on the morning of March 6, 1957. Detectives Charles DeLisle and Walter Spahr testified at the trial to such admissions.
3. Verbal admissions made first at the Prosecutor's office and thereafter at and around the scene of the homicide on the afternoon of March 6, 1957, which admissions were in the form of answers in an interrogation conducted by the First Assistant Prosecutor of Bergen County, Fred Galda. These admissions were recorded by a court reporter, were transcribed, and the transcript was read into evidence at the trial.
4. A verbal admission made by petitioner to Detective DeLisle in the Bergen County jail on March 11, 1957 with respect to the accuracy of the transcript of the interrogation on the afternoon of March 6, 1957. Detective DeLisle testified at the trial to such an admission.
5. Verbal admissions made to three psychiatrists, Drs. Zigarelli, Spradley, and Collins, during the course of their separate examinations of the petitioner. These examinations were made for the purpose of determining petitioner's sanity. The admissions were referred to during the cross-examination of petitioner at the trial and in the State's closing argument to the jury as tending to verify the admissions of March 6, 1957.

 Petitioner contends that each of the separate categories of admissions was obtained in violation of his privilege against self-incrimination guaranteed by the Fifth Amendment, and hence was improperly admitted in evidence. Respondent contends that every incriminating statement was voluntary.

 At the hearing on the petition twenty-eight witnesses testified, one by deposition, and fifty-six exhibits were received in evidence. From the testimony and exhibits, giving due regard to questions of credibility and the strength of recollections, I find the facts relevant to the disposition of this petition for habeas corpus to be as set forth hereinafter.

 On the morning of March 5, 1957, the body of Victoria Zielinski was discovered in a sand pit in Mahwah, Bergen County, New Jersey, near her home. She had been killed by a severe blow to the head which crushed her skull. Guy W. Calissi, the Prosecutor of the Pleas of Bergen County, took charge of the investigation, centering investigative activities at the headquarters of the Mahwah Police Department in the municipal building of that borough. Assisting Mr. Calissi in the investigation were First Assistant Prosecutor Fred Galda, a number of detectives and investigators of the Bergen County Prosecutor's office, and police officers of Mahwah and of the adjoining Borough of Ramsey. Investigation of various persons who might have been acquainted with the deceased continued through the day and into the evening. The case received widespread attention from the press, representatives of which were present at the Mahwah municipal building on the evening of March 5, 1957.

 At about 10:00 p.m. John Gilroy came to the Mahwah police headquarters in the company of an officer of the Ramsey police department. He informed Mr. Galda, who was then in charge, that on the evening of the previous day, March 4, he had loaned his Mercury car to Edgar Smith after Smith, Gilroy and one Rockefeller had spent the afternoon bowling; that Smith returned the car late that evening and that on March 5 he had noticed some stains on the floor mat and seat cover; that on March 5 at Smith's request Gilroy, accompanied by Don Hommel, had picked up Smith, his wife and baby at the home of Smith's mother-in-law in Ridgewood and had driven Smith to his trailer home in Mahwah; that Smith had left his wife and baby at the trailer and accompanied Gilroy and Hommel to Ramsey; that Hommel had commented, with respect to the investigation of Victoria Zielinski's death that the police were looking for a Mercury car; that Hommel's comment about the Mercury car had produced a startled look on Smith's face; that Smith had told Gilroy that on March 4 he had vomited on his pants and had thrown the pants away; that on the trip to Ramsey from the trailer Smith had carried a pair of shoes which he said he was taking to a shoe repair man; that Smith separated from Gilroy and Hommel for a time in Ramsey, taking the shoes with him; and that Smith was then at his mother-in-law's house in Ridgewood.

 Detectives Graber and Garabedian were dispatched with Gilroy to where his car was parked. At about 10:45 p.m. they examined it, concluded that some of the stains which Gilroy pointed out could have been blood, took the floor mat, and secured the vehicle. They asked Gilroy if his tires had been changed within the last two years and he told them they had not. By this time the Prosecutor's office had had plaster impressions made of certain tire tracks near the place where the body had been found. The detectives reported back to Galda, with Gilroy, and advised him of their suspicion that the stains were blood.

 Galda directed Graber and Garabedian to go to the house in Ridgewood where Smith was staying and bring him to Mahwah headquarters. Gilroy accompanied them to give directions, but remained in the car when Graber and Garabedian entered the house at about 11:30 p.m. They identified themselves as Prosecutor's detectives, told Smith that the Prosecutor would like to speak to him at the Mahwah Police Department and asked him to return with them. They had no arrest warrant. They gave no warnings of any kind, but they did inform Smith that they were bringing him in for questioning with respect to the murder of Victoria Zielinski. Smith said he was not surprised since he expected the police to question everyone with whom Victoria had been acquainted. Smith was not informed that he was free to refuse to accompany the detectives. In Garabedian's investigation report of March 12, 1957, he states that he and Graber "picked up Edgar Smith . . . and brought him to Mahwah Police Headquarters." (Ex. R-1). Graber's report of March 15, 1957 (Ex. R-3) states: "Edgar Smith was brought back to the Mahwah police station for questioning." Beginning at 11:30 p.m. March 5, 1957, Smith was under the impression that he was in police custody, and he was in fact in such custody.

 Upon arriving at the Mahwah municipal building Smith and Gilroy were asked to wait in the municipal council chamber adjoining the room used as police headquarters. In that room were policemen and several newspaper reporters. When one of the reporters attempted to interview Smith a police official chased her away. Gilroy described Smith's demeanor at about this time as cocky or self-assured.

 After a short wait Smith was taken into the room used as police headquarters. At the outset of the interrogation Smith was observed by Officer Brennan of the Mahwah Police Department to be calm. He sat in a chair and placed his feet upon a desk. Mr. Galda ordered him to remove his feet. Smith asked a policeman whom he knew for a cigarette and was given one. He was questioned by Mr. Galda and other police officers including Graber and Captain DeMarco of the Bergen County Prosecutor's office. He was given no warnings. He was questioned about the information obtained from Gilroy and he admitted that he had spent the afternoon bowling with Gilroy and Rockefeller, had borrowed the Mercury car, had used it to drive to a service station for kerosene to fill the heater in his trailer, had become ill and vomited, had discarded a pair of pants on which he had vomited, and had disposed of a pair of shoes in Ramsey. During this interrogation Captain DeMarco observed an injury to Smith's fingers, which he said he incurred fixing a tail pipe. DeMarco told Smith to lift his trousers to see if he had any lacerations on the shinbones, and discovered contusions and lacerations on his knees. Smith explained that he had fallen while getting out of the car to vomit. Shortly after midnight on March 6, 1957, during the interrogation at Mahwah police headquarters, Officer Russo of the Mahwah Police Department was dispatched for a dozen coffees and sandwiches for the party at headquarters. Smith denies that he consumed either coffee or food at that time and there is no credible evidence to rebut this denial, although there is testimony from which it may be concluded that he was offered coffee and a sandwich. During the course of the interrogation on several occasions Smith was returned to the council room while Gilroy was questioned in the headquarters room. At about 2:00 a.m. on March 6, 1957, Captain DeMarco pulled from Smith's head a sample of hair. At about 2:30 a.m. Graber observed Smith's demeanor. In his words, "He was quite subdued, he was hanging his head, where he hadn't done that previously. He was very quiet." (Tr. at 209). The level of interrogation by this time was far from casual or routine. Galda had asked Smith to take a lie detector test. Calissi had asked Smith to go to the morgue. It is not clear how Smith could have aided the investigation by complying, and it must be assumed that Calissi was then seeking to wear down his resistance to meaningful interrogation. As a result of the first interrogation at Mahwah Smith was directed to accompany Galda, Captain DeMarco and Detective Graber to show them where he had vomited and where he had discarded his shoes. In Ramsey Smith disclosed the location of the shoes in a garbage can in back of some stores on Main Street. The shoes were placed in a box and impounded. A red fiber which appeared similar to the red sweater worn by the victim was found stuck to the instep of one of the shoes. Smith was then taken to the vicinity of Chapel Road and Ferndale Avenue, near the entrance to the sand pit, an area where he claimed to have vomited on the evening of March 4. No evidence of vomit was found. Smith was asked if he had ever been further back on the road into the sand pit and denied that he had ever been back there. He observed in the road the discarded plaster bags, the contents of which had been used to make plaster impressions at the scene of the homicide.

 While Smith, Galda, DeMarco and Graber were traveling about seeking confirmation of Smith's story about vomiting, Detective Russell Ridgeway and Lieutenant Charles Haight of the Mahwah Police went to Smith's trailer in an attempt to find the vomit stained pants, where Smith said he had discarded them. They had no search warrant or consent. In the garbage pail alongside the trailer they found a pair of gray cotton pants saturated with kerosene and in the trailer a pair of brown cotton gloves. These were not the pants Smith had described. (Ex. R-34).

 At that point Smith was questioned by Mr. Galda and Captain DeMarco and told a different version of how and where he had discarded the pants. He explained that he had changed pants and had gone back to Pulis Avenue where he discarded the vomit covered pants. He was taken to the Pulis Avenue location, where a search for the pants was made. Smith, who was attired in light clothing, complained of being cold. The search for the plants was fruitless. Questioning with respect to the clothing Smith had worn on March 4 continued in the car, and Smith disclosed that he had worn a blue jacket which he had since washed and which was at his mother-in-law's house. Detective Graber was dispatched to that home at about 3:30 a.m. and obtained the jacket from Mrs. Smith. Galda, Captain DeMarco and Smith returned to the Mahwah police headquarters where Smith's interrogation continued. At this time Smith proffered an explanation with respect to the shoes:

"'If its [sic] those shoes that you are worried about, I think I can explain that. * * * If those shoes have any blood on them, I can explain how it got on there * * *.' He said that when he got home and his knees were bloody, he wanted to change his shoes and his good shoes were under the bed and rather than soil the rug with his bloody knees, because his pants were off, he pulled the old shoes over by his knees and he leaned on them with his knees and pulled his new shoes out from under the bed." (Ex. R-59, pp. 481-482)

 It was now between 3:30 and 4:00 a.m. Lieutenant Haight and Detective Sinatra were detailed to return to Smith's trailer and measure the kerosene in the fifty-five gallon tank beside Smith's trailer. They found it to be three-fourths full. They had no search warrant and no consent. The measurement of the tank tended to cast further doubt on Smith's version of his whereabouts on the evening of March 4. At about 4:00 a.m. Mr. Galda gave instructions to obtain powerful searchlights. Smith was taken out for a further search for the trousers on which he claimed to have vomited and for evidence of vomit. Smith was first taken by Captain Wickham, Detective Sinatra, Detective Garabedian and Detective O'Har to another location on Wyckoff Avenue near a church where he claimed to have vomited. Next he was taken to Pulis Avenue, where he was asked to assist Mr. Galda and Captain DeMarco in a search for the pants. Finally he was taken back to the area near the sand pit and asked to assist in locating vomit there. All of these searches proved fruitless. Smith was then taken back to Mahwah police headquarters.

 It was now after 5:00 a.m. At 5:20 a.m. Captain DeMarco made arrangements to have Smith examined at 7:30 a.m. by the county medical examiner, Dr. Gilady. He called Investigators Nunno and Perrapato and instructed them to be at Dr. Gilady's office at 7:30 a.m. He detailed Detective Sinatra to guard the suspect. The physical evidence which had been gathered from the murder scene and elsewhere was transferred from Mahwah to the Bergen County Prosecutor's office. Gilroy was driven home. The Mahwah phase of the investigation ended at about 5:40 a.m.

 With Smith in the car, Sinatra, whom Smith knew to be armed, drove DeMarco to his home in Wyckoff so that DeMarco could refresh himself and change his clothes. Sinatra then took Smith to a diner in Midland Park where both ordered breakfast. Sinatra's best recollection is that Smith ate breakfast. Smith testified that he was too tense and ill to eat. Probably Smith did eat something, although by this time he was undoubtedly tense and ill. Smith contends that while he was with Sinatra in the diner he asked Sinatra if he could telephone his wife, or perhaps drive to his mother-in-law's home which was a few blocks away, and that Sinatra told him his instructions would not permit this. Sinatra denies that either request was made. From all the surrounding circumstances including the fact that Smith had been away from his wife all night, the geography and the fact that when he arrived at the Prosecutor's office later in the morning he made a similar request (to call his wife), which was granted, Smith's contention is more credible than Sinatra's denial. After breakfast Smith was taken back to Wyckoff where Captain DeMarco rejoined them. They then drove to Dr. Gilady's office in Hackensack where they were met by Investigators Nunno and Perrapato. Smith was given no warnings. Dr. Gilady's report (Ex. R-32) discloses and I find that Smith was stripped of all his clothing and examined for marks of injury. This examination took place in the presence of Captain DeMarco. The other four detectives were present, although not in the examining room. The doctor discovered indications of traumatic injury of recent origin on the left knee, the right knee and the left index finger. With respect to Smith's mental state he found "He was very restless and apprehensive and markedly agitated." Dr. Gilady's written report discloses that the examination took place at about 7:55 a.m. The report was received at the Prosecutor's office on March 6, 1957, exact time unknown. However, almost immediately after completing the examination and certainly no later than 9:00 a.m. Dr. Gilady telephoned the same information to Mr. Calissi or Mr. Galda.

 Meanwhile at about 6:30 a.m. the Ramsey Police Department had found, in quite a different location than any to which Smith had made reference, a pair of blood stained pants. Arrangements were made to photograph the pants at that location and then to bring them to the Prosecutor's office at the courthouse in Hackensack.

 At about 8:30 a.m. Detective Sinatra and others brought Smith from Dr. Gilady's office to the Prosecutor's office. About this time Mr. Galda, who was already at the office, had learned from a police source that Smith had a juvenile court record, and made efforts to obtain from the Juvenile and Domestic Court of Bergen County a copy of that record. He ultimately did obtain it (Ex. R-33) through the Midland Park Police Department.

 Shortly after his arrival at the Prosecutor's office Smith's knee injuries were photographed for Captain DeMarco by a newspaper photographer. Thereafter Detectives Kikert and Garabedian took fingerprints, fingernail clippings and scrapings from Smith. Also, shortly after Smith's arrival, the bloody pants were delivered from the Ramsey Police Department. They were shown to Smith by Galda and Calissi and he denied they were his.

 Shortly thereafter Smith asked for and received permission to call his wife. In the presence of one or more of the Prosecutor's staff this call was made. Smith told his wife he was in the Prosecutor's office, and that she should go to the office of Judge Dwyer, an attorney in Ridgewood, tell Dwyer who she was, tell Dwyer where he was, and ask Dwyer to get him out.

 Some time after 9:30 a.m. Smith was placed in a smaller office. At about the same time two detectives who had not previously figured in his interrogation arrived on duty. One of them, Detective DeLisle, inquired if there was a suspect in the Zielinski homicide. Captain DeMarco informed him Smith was the suspect. DeLisle suggested that too many people were participating in Smith's interrogation, and that he should be placed in less congenial surroundings. He was thereupon placed in a small office normally occupied by Captain DeMarco. DeMarco instructed DeLisle and Detective Spahr to continue Smith's interrogation. This interrogation commenced about 10:00 a.m.

 At that time the Prosecutor had evidence (1) that Smith was acquainted with the victim, (2) that he was in the vicinity of the crime on the evening of March 4, (3) that he had used a car that evening which now contained suspicious stains, (4) that he had lied about his movements that evening and in particular about vomiting on his pants, (5) that he discarded a pair of shoes to which was adhered a fiber similar to that of a sweater worn by the victim, (6) that he had discarded a pair of pants, (7) that a pair of bloody pants, identified by Smith's wife as his, were found in a location other than the place where he said he discarded his pants, (8) that he had injuries consistent with having engaged in a struggle in a sand pit, (9) that he had washed a jacket and a shirt on the morning of March 5. Smith had been the prime suspect and focus of the investigation since 4:00 a.m. at the latest. Clearly the Prosecutor at 10:00 a.m. had sufficient information to charge Smith with murder, and to have him taken before a committing magistrate. The Prosecutor admitted that he was well aware of the New Jersey requirement that persons taken into custody be brought promptly before the nearest available magistrate. *fn4" The Prosecutor's office was in a courthouse where there were numerous judges, any one of which could properly have acted as a magistrate. At such an appearance it would have been the duty of the court to advise Smith of his right to counsel, his right to appointed counsel in a homicide case, his right to remain silent, the use to which any statement he made could be put and his right to make a statement not under oath. *fn5"

 Shortly before this new interrogation began, but after he had been confronted with the bloody trousers, and had been photographed, fingerprinted and had had his fingernails scraped and clipped, and after he spoke to his wife on the telephone about an attorney, and after she had arrived at the Prosecutor's office too soon to have called an attorney, Smith, by this time transferred to the smaller DeMarco office, said, "I am getting out." He started to get up but was pushed by Detective Spahr into a chair and fell backwards onto the floor. Thereafter Spahr noticed a small bloodstain on the collar of his T-shirt. Spahr ordered that his clothing be removed and prison coveralls were substituted.

 Spahr and DeLisle conferred outside Smith's presence on an agreed line of questioning of the suspect. They were both experienced interrogators. It was agreed that at an appropriate point in the interrogation DeLisle would afford the suspect, unexpectedly, an opportunity to state any justification for what ...

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