The opinion of the court was delivered by: FISHER
CLARKSON S. FISHER, District Judge.
Isiah Macon, sentenced to a term of not less than two nor more than seven years in New Jersey State Prison, has petitioned this Court for a Writ of Habeas Corpus pursuant to 28 U.S.C. 2241 et seq. Macon was convicted of manslaughter in violation of N.J.S.A. 2A:113-5. His appeal to the Appellate Division of the Superior Court was rejected. A Constitutional question having been raised, the matter was heard by the New Jersey Supreme Court and the conviction was affirmed. State v. Macon, 57 N.J. 325, 273 A. 2d 1 (1971). That court, however, changed his term of incarceration from seven to ten years to two to seven years. The application for a Writ followed.
The petitioner raised the identical question here presented before the New Jersey Courts and since he has exhausted his remedies before those tribunals, he is properly before this Court. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953); Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); 28 U.S.C.A. 2254.
The State's evidence, largely through the testimony of Sasso's companions, indicates that Sasso put his hand on Macon's shoulder and suggested that the accident did not amount to much and should not involve the police. At that, Macon stepped back, drew a gun and shot Sasso twice. As Sasso fell he grabbed Macon and helped his friends attempt to take the gun away. The struggle, as this version goes, continued across the street where Sasso lapsed into unconsciousness and Macon made good his escape.
Testimony for the defendant differs. That version is that Macon decided to return to the Inn to call the police since the driver of the car involved refused to show his credentials. When Sasso interfered, he did so in an aggressive and racially abusive manner, then became physical and punched Macon in the chest twice. Macon then drew a gun to protect himself and to frighten the others off. Sasso profanely rebuffed the threat, leaped at Macon and continued his assault, assisted by several of his friends. In the struggle, the gun fired several times.
It is again undisputed that after the incident Macon and his two companions drove away. He instructed his friends to give no statements and to take no action until he had spoken with his attorney. After then dropping off his companions, Macon drove aimlessly about, threw the gun out the window, and finally parked his car at a place which he later could not remember and walked home. The next morning he telephoned his lawyer and was later arrested. Following petitioner's directions, his companions said nothing.
Petitioner's challenge rests on comments made by the prosecutor to the jury during his summation. Speaking of the actions of petitioner and his friends during the time following the shooting incident, the prosecutor asked the jury:
"Then what does he do? He drives along and can't tell us where. The gun goes out the window. An act of innocence?"
"The car is left somewhere and he doesn't remember where. An act of innocence?"
"He goes home and puts the shirt down in the chest, a torn shirt. Then he goes to bed. He says he had no trouble sleeping. He gets up the next morning and lo and behold, what does he do? He calls his lawyer. These are acts of innocence ?" (Emphasis added.)
This statement, the petitioner claims, prejudiced him in his exercise of his right to counsel, and for that reason he believes he is entitled to habeas corpus relief. For that relief to issue, it is incumbent upon this court to find that the objectionable remarks are both constitutionally significant and prejudicial within the context of this case. After an exhaustive and searching review of both the record and relevant authority on point, the Court concludes, for the reasons to be set forth below, that constitutional error was committed but the effect on the trial was not sufficiently prejudicial as to require the granting of petitioner's request for the Writ.
No real purpose is served here by a detailed and lengthy exposition of the background of the Constitutional guarantee of the right to counsel. This right is among the greatest of the Constitutional safeguards of personal freedom. Set forth originally in the Sixth Amendment, the right to counsel has since been expanded by nearly two centuries of judicial precedent. Its importance to the individual who stands accused before the bar is both precious and crucial. Any abrogation of the right to counsel ...