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May 9, 1972

UNITED STATES of America ex rel. Edward A. BURT, Petitioner,
Howard D. YEAGER, Principal Keeper, New Jersey State Prison at Trenton, Respondent

Kitchen, District Judge.

The opinion of the court was delivered by: KITCHEN

KITCHEN, District Judge:

 Petitioner, Edward A. Burt, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He is presently incarcerated in the New Jersey State Prison, Trenton, New Jersey. Petitioner was tried by a jury in the Camden County Court Law Division. On July 16, 1967, the jury returned a verdict of guilty of murder in the second degree. Indictment No. 685-65. On July 28, 1967, the Hon. William A. Pascoe sentenced petitioner to a term in the State Prison of not less than twenty-five (25) years, nor more than thirty (30) years. This judgment was appealed to the Superior Court of New Jersey, Appellate Division, where the judgment was affirmed. (State v. Burt) 107 N.J. Super. 390, 258 A. 2d 711 (1969). Certification was granted by the New Jersey Supreme Court. 55 N.J. 588, 264 A.2d 63 (1970). The judgment was affirmed for the reasons expressed in the Appellate Division opinion. 59 N.J. 156, 279 A. 2d 850 (1971). The United States Supreme Court denied certiorari on January 17, 1972. 404 U.S. 1047, 92 S. Ct. 728, 30 L. Ed. 2d 735 (1972). Petitioner has exhausted his state remedies pursuant to 28 U.S.C. § 2254.

 Independent review in compliance with Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963) has been made of the pleadings, briefs and trial record. No evidentiary hearing is required.

 Petitioner contends that the conviction and sentence pursuant to which he is being detained were imposed "in violation of the Fifth Amendment Guarantee Against Compulsory Self-Incrimination as made applicable to the states by the Fourteenth Amendment." Specifically, petitioner alleges two such violations:

 (1) Various trial episodes occurred during cross examination of petitioner which impeached his credibility by reference to the fact that he failed to volunteer exculpatory information to the police while in custody. The effect of this cross examination was, in substance, to penalize petitioner for relying on his right to remain silent while in police custody.

 (2) During the summation the prosecutor referred to the fact that defendant failed to tell the police the same exculpatory version he testified to at trial. This amounted to a comment on petitioner's silence, thus penalizing him for that silence.

 To place these contentions in the proper perspective it is necessary to provide a backdrop of the trial proofs. In his opinion, concurring in part and dissenting in part, Justice Hall of the New Jersey Supreme Court provided the necessary statement of facts and this court adopts that statement as follows: *fn1"

 "The state sought a first degree murder conviction, with the death penalty, based on a killing in the course of attempted robbery of the victim or on a wilful, deliberate and premeditated shooting. The whole trial was death penalty oriented. In my view, there was no direct evidence or permissible inference sufficient to take either prong of the theory to the jury. At any rate, the jury, by returning a second degree verdict, did not accept either thesis. At the same time, it also rejected defendant's theory of death resulting from an accidental discharge of the gun in the hands of the victim while defendant was trying to wrestle it from him. There were no eye-witnesses to the event. The state's direct evidence had to rest almost exclusively upon the testimony of a Mrs. Everline Adams, principally concerning what defendant told her immediately after the shooting.

 "Mrs. Adams (age 61) was a longtime 'intimate' friend of the decedent (age 52). She lived in Philadelphia and was in the habit of visiting him periodically at his home in Camden. She testified that on the day in question she arrived at the home about 6:00 P.M. and found him and defendant (age 32) sitting at the dining room table drinking and talking. She had not previously known defendant and was not introduced to him by name.

 "To return to Mrs. Adams, she testified that after her arrival, drinking, talking and record playing continued for another hour, with everyone in a friendly mood. It seems evident that by that time both men had consumed considerable whiskey and beer. Shorty then stated that he had had enough to drink, had some business to attend to and wanted to go visit some relatives. Mrs. Adams, who was to accompany him, went upstairs to change her shoes. She said that as soon as she reached the bedroom, she heard a scuffle, a groan and a shot from a gun downstairs. A second shot followed and the sound of someone falling to the floor. Defendant immediately came up the stairs with a gun in his hand, said Shorty was dead, that he was going to kill her and 'blow your brains out just like I blowed his out.' He demanded money and took $5, all she had. He then commanded her to undress and raped her. Thereafter he told her to dress and that he was not going to kill her. She said he required her to accompany him, at gunpoint, out of the house and to the car parked some distance away. He drove her to the bus station to return to Philadelphia. On the way he had her write his telephone number on a card taken from the car's glove compartment (which she later turned over to the police).

 "Defendant's story of the shooting was quite different. He said that after Mrs. Adams arrived, Shorty became unfriendly and acrimonious conversation developed. While the testimony is not too articulate, the impression is gained that defendant thought Shorty was suggesting he was flirting with Mrs. Adams. His story was that, as soon as Mrs. Adams went upstairs, he told Shorty he was going to leave, that Shorty told him to sit down and that when he looked up, Shorty was pointing the revolver at him. He jumped up, grabbed Shorty's arms and tried to wrestle the gun from him. The gun was discharged once in the struggle (the first bullet apparently entered Shorty's arm) and a second time when Shorty had his left hand with the gun above his head. The second shot caused death; the evidence is clear that it entered Shorty's forehead from above and the expert testimony on both sides is consistent with either a deliberate shot from that angle or an accidental discharge in the manner defendant asserted. (There was no evidence of robbery or attempted robbery of the victim; his wallet was found on his person with money in it.)

 "Defendant said that right after the shots he found himself holding the pistol by the barrel, with Shorty slumped on the floor. Mrs. Adams screamed and asked what had happened. He responded that Shorty had tried to kill him and that he was leaving. She asked not to be left alone and he told her to come downstairs. When she did they left the house together and walked to the car. He then drove her to the bus station. It is undisputed that he neither sought aid for the dying man nor did he communicate with anyone about the occurrence. He admitted, in cross-examination questions just before the query challenged here, that he did not know whether Shorty was alive or dead when he left the house.

 "To complete the summary of the proofs as they stood at the time of the cross-examination involved, reference should be made to further events after the shooting. The state's proofs did not account for defendant's whereabouts after he dropped Mrs. Adams at the bus station until some hours later. A Clementon police officer on patrol noticed a broken window in the Trio Tire establishment (where, it will be recalled, defendant had been employed.) Investigation disclosed defendant asleep on a pile of tires inside. The revolver was found in his pocket. He was charged with breaking and entering and taken to the Camden County jail. (The Clementon police obviously knew nothing about Shorty Owens' death or defendant's connection with it.) Defendant filled in the time interval in his testimony. He said he was very nervous and upset and, after leaving Mrs. Adams at the bus station, bought some more whiskey, drove to the Trio place of business, drank it in the parking lot and fell asleep in the car. When he awoke it was dark and he broke the window to enter and find a place to sleep inside.

 "The fact of Shorty's death came to light late in the evening when his son went to his house and found his body. The Camden police were called. At that point they knew nothing about defendant. The pieces were finally fitted together during the night. When Mrs. Adams reached her home in Philadelphia, she told her daughter and son-in-law what had happened. The Philadelphia police were advised and, after some delay, the Camden police were notified and Mrs. Adams went back to Camden and told her story, implicating defendant who was then in the jail on the Clementon charge.

 "With the proofs in this posture, *fn2" the prosecutor opened his cross-examination of defendant by exploring, as previously indicated, the fact that he did not know whether or not Shorty was dead when he left the house and that he did not make any effort to find out. A few questions later the interchange grounding the issue before us took place:

Q Did you ever tell this story to the police?
A No, sir.
Q You are telling us now this shooting was accidental, ...

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