The opinion of the court was delivered by: STERN
Petitioner was charged in Hudson County Indictment No. 374-72 with the first degree murder of Joshua Fields, in Jersey City, New Jersey, in violation of N.J.S.A. 2A:113-1 and 2A:113-2. On March 26, 27, 28 and 29, and April 2, 1973, petitioner was tried before the Honorable Thomas S. O'Brien, J.S.C., and a jury. Petitioner was found guilty of the second degree murder of the deceased, who had sustained a broken jaw, broken nose, broken leg and various puncture wounds. On May 4, 1973, Judge O'Brien sentenced petitioner to a term of 25 to 30 years in the State Prison at Trenton.
The petition for a writ of habeas corpus now before the Court was filed on February 4, 1975.
Petitioner contends he was denied a fair trial, the effective assistance of counsel, due process of law and the equal protection of the laws, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, because of the following errors at trial: (1) failure of the trial court to grant a continuance; (2) admission into evidence of a knife and certain hearsay evidence, notwithstanding its subsequent exclusion by the court; (3) the prosecutor's comments during summation; and (4) the placing of the petitioner at the rear of counsel beside a guard throughout the trial.
Petitioner also grounds the petition on the alleged ineffective assistance of counsel. Petitioner bases that contention on four grounds: (1) failure of trial counsel to utilize the minutes of the preliminary hearing in cross-examining prosecution witnesses; (2) failure of counsel to introduce into evidence rent receipts which were in his possession at the time of the trial; (3) counsel's direction to defendant to sit behind counsel beside a guard; (4) failure of counsel on appeal to petition the Appellate Division for a rehearing to correct an error it allegedly made in Section IV(b) of the opinion of October 4, 1974.
Before moving to the merits of petitioner's claims, the Court must determine whether he has exhausted all state remedies available to him. Fay v. Noia, 372 U.S. 391, 415-420, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), 28 U.S.C. § 2254(b).
Except for Points 1, 2 and 4, under ineffective assistance of counsel, petitioner has raised all claims asserted here in the state courts. The general issue of ineffective assistance of counsel, under which these new points arise, was presented to the state courts. Since the general issue was before the state courts, no interest would be served by barring petitioner from raising additional support for it now.
Petitioner appealed his conviction to the New Jersey Superior Court, Appellate Division, but did not seek appeal to the New Jersey Supreme Court. His time to petition for certification, however, has lapsed. R. 2:12-3. Accordingly, the Court finds petitioner has exhausted all available state remedies and will proceed to the merits. Fay v. Noia, supra, 372 U.S. at 391, 399, 83 S. Ct. 822; Canfora v. Davenport, 350 F. Supp. 1020, 1024 (D.N.J.1972).
The first issue is the trial court's refusal to grant a continuance. Damaging testimony by Detective Adams, one of the police officers who investigated a complaint filed by Joshua Fields concerning possible narcotics activity in his apartment, was elicited for the first time at a voir dire on the first day of trial. Detective Adams testified on cross-examination, out of the presence of the jury, that petitioner had threatened Joshua Fields in Adams' presence hours before Fields' death. Detective Adams also stated that one Theodore Fleming had also been present at the time the threat had been uttered by petitioner. Neither the statement of petitioner nor the name of the eyewitness had been in the officer's report or available through discovery. Defense counsel moved for a mistrial or adjournment on the basis of surprise, and on the basis of his need for time to locate the eyewitness and otherwise to meet Adams' testimony. (Tr. 23, 48-52)
The court denied both motions. Noting that the prosecution would take three days to present its evidence, the court held that defense counsel would have adequate time to deal with Detective Adams' testimony. In addition, the State agreed to hold Adams' testimony until the conclusion of the case, thus permitting the defense an opportunity to investigate before being required to confront Adams before the jury. The State also agreed to make all possible efforts to locate Fleming so that he might be made available to the defense.
Federal courts reviewing state proceedings have held that the granting of a continuance is within the sound discretion of the trial court. The exercise of that discretion will not be upset unless there is a showing of abuse. United States ex rel. Drew v. Myers, 327 F.2d 174, 181-182 (3d Cir. 1964); United States ex rel. Bronzell v. Rundle, 294 F. Supp. 1338, 1339 (E.D.Pa.1968), aff'd 410 F.2d 371 (3d Cir. 1969).
Here, defense counsel had three days in which to prepare to meet Adams' testimony. A further continuance for that purpose does not appear to have been necessary, and its denial was neither an abuse of discretion nor a denial of due process.
Petitioner's second claim is that he was unduly prejudiced by the admission into evidence of a "butcher knife." The knife was introduced during the testimony of Detective Rochford, who testified that the knife was found in a kitchen cupboard during a search of the deceased's apartment. (Tr. 190-191) Following the testimony of the State Medical Examiner, however, a motion to strike the knife from evidence was granted upon a finding of the trial court that no evidence had been produced to link the knife to the ...