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January 19, 1976

UNITED STATES of America ex rel. Jesse Edward WILSON, Petitioner,

The opinion of the court was delivered by: STERN

 Petitioner Jesse Edward Wilson seeks a writ of habeas corpus *fn1" on the basis of three alleged constitutional violations during his second state trial for the murders of Shep Benyard and Esther Friedman. The state proceedings at issue here were the result of the reversal by the New Jersey Supreme Court of petitioner's first murder conviction for these murders, after a joint trial with a codefendant, Wilbert Sinclair, who had actually fired the shots which killed Benyard and Friedman. State v. Sinclair, 49 N.J. 525, 231 A.2d 565 (1967). The Court held that the first trial judge had erred in limiting the jury's alternatives, as to petitioner, to verdicts of guilty of first-degree murder (on a theory of felony murder) or not guilty, failing to instruct the jury that it could return a verdict of guilty of second-degree murder as to him. 49 N.J. at 539, 231 A.2d 565.

 Following the suggestion of the Supreme Court in Sinclair, 49 N.J. at 550, 231 A.2d 565, the State retried petitioner alone. The jury on this occasion was offered a choice among first-degree murder (on a felony murder theory), second-degree murder and outright acquittal. Once again a jury found it proved that petitioner had been a participant in an attempted robbery of the liquor store operated by Abraham and Esther Friedman in Newark, on the evening of October 24, 1964. The State proved, and the jury necessarily found, that during an attempted robbery the two decedents were shot and killed by petitioner's companion and co-conspirator, Sinclair. Petitioner was convicted of first-degree murder (felony murder) and sentenced to death, after the second jury, like its predecessor, refused to recommend life imprisonment. The New Jersey Supreme Court affirmed this second conviction. State v. Wilson, 57 N.J. 39, 269 A.2d 153 (1970). The sentence has since been amended to life imprisonment. Petition, para. 4.

 The petition makes the following three allegations of error in the trial:

(a) The court improperly admitted into evidence against the defendant testimony concerning the actions taken by defendant's principal, Sinclair, after the crime had been committed and while the defendant, Wilson, was in custody.
(b) The trial court erred in denying the Defendant's motion at the conclusion of the State's case to eliminate felony murder from jury consideration.
(c) The Court erred in failing to charge manslaughter since the evidence, [sic] as to an attempted robbery was not so unequivocal as to make it idle to ask the jury to pass on such evidence.

 Petition, para. 11.

 Petitioner has exhausted his state remedies with regard to the first two claims, and those issues are accordingly appropriate for disposition here. Title 28 United States Code, § 2254(b); Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). The issue of the manslaughter charge, although raised to the New Jersey Supreme Court on appeal from the first conviction and rejected in State v. Sinclair, supra, was not raised on appeal from the second conviction. It may be that petitioner has therefore not exhausted state remedies on this issue. The Court need not reach the issue of exhaustion, however, since it has nevertheless considered all three claims on their merits and finds that the petition must be denied. United States ex rel. Kelly v. Maroney, 414 F.2d 1228, 1231 (3rd Cir. 1969).

 Both parties rely on the facts as set out by the New Jersey Supreme Court in State v. Sinclair and State v. Wilson, supra. Memorandum of Petitioner, at (a); Answer, at 2. In Wilson, Justice Proctor summarized the factual background:

The principal prosecution witness, Abraham Friedman, testified that at about 8:30 P.M. on October 24, 1964, he and his wife, Esther, were working in his package liquor store in Newark. One customer, Shep Binyard, was also in the store. Two men, later identified by Friedman as Wilson and Sinclair, entered the store. Wilson attempted to sit on a chair but fell. Binyard tried to help him up, but Wilson refused the help and got up himself and sat on the chair. Sinclair sought to purchase some "corn whiskey" or "bootleg whiskey," but was refused because Friedman thought Wilson looked "kind of under the weather."
Sinclair then drew a gun and said: "This is a stickup and just be quiet and nobody will get hurt." Mrs. Friedman implored, "Take whatever you want, but just leave us alone." Sinclair then directed Wilson to go behind the counter. Wilson did so and began walking toward the cash register which was on the far end of the counter. At that time Binyard approached Sinclair and said, "Why don't you fellows be nice and leave these good people alone?" As soon as Binyard said this, Sinclair shot and killed him. At this time Wilson was behind the counter in front of the cash register, and he tried to open it. He was at first unable to do so, but after receiving instructions from Friedman, he succeeded. Mrs. Friedman "got sort of hysterical" and ran out of the store screaming for help. Sinclair turned and fired at her. At the time of this shooting, Wilson had his hands in the register. Sinclair ran out of the store, and Wilson was left alone with Friedman. Friedman then picked up a bottle of whiskey and hit Wilson over the head, breaking the bottle. Wilson stood stunned for a moment, and Friedman ran toward a burglar alarm in an icebox at the rear of the store. Wilson followed until Friedman threatened him with the broken bottle which he still held. Wilson stood still for a second or so, looked around the store, and ran out. Friedman then went into the walk-in refrigerator and sounded the burglar alarm. Afterwards, he left the store and found his wife lying on the sidewalk, and with some help from passersby, he carried her into the store and sat her on a chair. He learned later at the hospital that her wound had been fatal.
The police arrived three to five minutes after the alarm was sounded and questioned Friedman regarding the shootings. They then took him to the hospital to see about his wife's condition. While there he identified Wilson as "the man that was in my store that I hit over the head with the bottle." Wilson was being treated in the hospital for the head injury he received; he had been picked up by the police several blocks from the Friedman store. After he learned that his wife was dead, Friedman was taken back to the store where he, his son, and the porter closed up. As far as he knew, no money had been taken from the cash register. The police then took Friedman and his son to police headquarters where he was shown about six or eight photographs in a group from which he identified Wilson and Sinclair. Friedman then gave a statement to the police. As he was leaving the police station, he happened to look in an interrogating room and saw Sinclair whom he identified.
The State also presented several police officers who went to the store to answer the alarm. Detectives Farese and Moore testified that when they arrived at the store, Friedman told them that there had been a stickup, and "there was shots fired, and his wife got hit and the patron got hit." Friedman was hysterical, worried about his wife, and had to be asked questions three or four times. Moore testified that the cash register was open three or four inches. Officer DiBlasi, a fingerprint identification expert, testified he found no finger prints of value anywhere in the store.
Detectives Alford and Farese testified to the circumstances of Sinclair's arrest over defendant's objections. They said they saw Sinclair walking near his mother's home. They called for him to halt and when he did not they pursued him. About fifty yards away, in a parking lot, Sinclair sat down on a log and threw an object under a car. This object was later identified by an expert as the gun which killed Mrs. Friedman and probably that which killed Binyard. Sinclair was arrested following his pursuit and taken to police headquarters where he was identified by Friedman.
The State also presented testimony that when Wilson was treated at the hospital for the wound on his head, slivers of glass were found on his jacket. An expert later identified this glass as part of the bottle which Friedman had used to strike the man he identified as Wilson.
The final evidence produced by the State was portions of Wilson's testimony from the first trial. These were read to the jury over defendant's objections. In this prior testimony, Wilson said that he had known Sinclair for about twelve years. On October 23, he left work late in the afternoon and began drinking. Without going into the details, it appears that he went on drinking intermittently until the next evening when the shootings occurred. That night, at about 7:00 o'clock, he and Sinclair went to Wilson's sister's house to get a gun which Wilson had obtained two days before. The sister was not there and they entered by forcing the locked door. The pair then left for a bar where they found Wilson's sister. Wilson testified that while at the bar, he dropped the gun on the floor and that Sinclair picked it up and kept it. Sinclair also obtained the bullets from Wilson but it is not clear whether these were also picked up off the floor. The next thing Wilson remembered was being on the street with a bleeding hand.
The defendant did not take the stand in the present trial but produced several witnesses on his case. Only two gave testimony of any significance. Officer Purcell testified that he responded to the alarm and that when he arrived, two officers were already present at the scene of the crime. He was in the store for about a half hour during which he asked Friedman questions regarding the shootings and listened while the other officers questioned him. Purcell filed a report in which he did not mention any attempted robbery, and he testified that "to the best of my knowledge" Friedman never told him of any attempted robbery, but rather that Sinclair took out a gun after Friedman refused to sell him liquor.
Milton Unger, a newspaper reporter, testified that in response to questions by himself and police, Friedman gave a version of the events which did not include mention of an attempted holdup or any reference to the opening of the cash register. Friedman had said that the shootings took place after one of the men "took out a gun and demanded liquor."

 57 N.J. at 42-46, 269 A.2d at 155-156.

 A. Admission of Testimony Regarding Sinclair's Acts After the Commission of the Crime.

 The trial court permitted a Newark police detective to testify that, approximately two hours after the shootings, he and five other officers went to Sinclair's mother's home. Nearby they observed a man who later proved to be Sinclair walking east along the north side of Twelfth Avenue toward the house. The officers began to walk towards Sinclair and instructed him to halt. According to the testimony, when they shouted "halt" Sinclair "seemed to quicken his pace" and they pursued him. Just before his capture, the detective ...

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