(A) That the state prosecutor and his staff deprived petitioner's counsel of the opportunity to interview and confront eye-witnesses to the crime prior to trial.
(B) That the state trial judge failed to hold a hearing on petitioner's competency to stand trial despite evidence casting some doubt on the matter.
(C) That medication administered to the petitioner impaired his ability to aid in the preparation and conduct of his defense, suppressed symptoms of mental illness, and adversely affected his demeanor in court.
(D) That petitioner was denied the effective assistance of his own psychiatrists by the state's failure to inform them of the psychoactive drugs he was taking, that he was denied the effective assistance of counsel in that the state was permitted to conduct a psychiatric examination in the absence of petitioner's counsel.
(E) That the trial judge improperly charged the jury with respect to the burden of proof on culpable mental state.
(F) That the petitioner was denied a fair and impartial trial because of massive pretrial publicity.
The threshold inquiry for this Court with respect to these contentions is mandated by the habeas corpus statute. Unless petitioner has exhausted his state remedies, as a matter of comity this Court cannot hear his claims. Title 28 United States Code, § 2254(b); Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); United States ex rel. Hayward v. Johnson, 508 F.2d 322, 329-330 (3rd Cir. 1975), cert. denied, 422 U.S. 1011, 95 S. Ct. 2637, 45 L. Ed. 2d 675 (1975); Ralls v. Manson, 503 F.2d 491, 493-494 (2nd Cir. 1974).
The State concedes, and the record demonstrates, that the petitioner has exhausted his state remedies with respect to allegations (A), (B), (C), (E) and (F). These matters were presented to the state courts on direct appeal and in post-conviction relief proceedings. They will therefore be considered here on the merits.
Allegation (D) raises more troublesome issues of exhaustion. (D), although here pleaded as one, contains several discrete issues. First, the petitioner claims that his rights to a fair Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), were violated. The asserted violation is the failure of the state to inform defense counsel and defense psychiatrists of petitioner's regimen of psychoactive drugs. Second, Trantino claims that the post-indictment questioning by a state psychiatrist should not have been conducted in the absence of his counsel or of his own psychiatrist. This Court has carefully reviewed the petitions and briefs in the prior state proceedings. See, United States ex rel. Geisler v. Walters, 510 F.2d 887, 890 n.4 (3rd Cir. 1975). The issues sought to be raised in allegation (D) were not presented to the state courts before, on direct appeal [ See, R-14, R-21; State v. Trantino, 44 N.J. 358, 209 A.2d 117 (1965)]; on petitioner's Motion for a New Trial [ See, R-34 at 50-55; R-24; State v. Trantino, 45 N.J. 37, 211 A.2d 193 (1966)]; or in petitioner's Petition for Post-Conviction Relief [ See, R-34 at 144-178; R-29; State v. Trantino, 60 N.J. 176, 287 A.2d 177 (1972)].
The State initially opposed consideration of both issues here for failure to exhaust state remedies. With respect to the issue based on Brady v. Maryland, they now request this Court to decide the question without a remand. (Tr. 4/25/75 at 6-7) Under certain circumstances, the state may waive the normal requirement of exhaustion of state remedies contained in Title 28 United States Code, § 2254(b). United States ex rel. Boyance v. Myers, 372 F.2d 111, 112 (3rd Cir. 1967); Jenkins v. Fitzberger, 440 F.2d 1188, 1189 (4th Cir. 1971). Cf. United States ex rel. Kelly v. Maroney, 414 F.2d 1228, 1231 (3rd Cir. 1969). Petitioner's Brady claim will accordingly be considered and disposed of here on its merits.
With respect to the remaining issue subsumed in (D), the State presses its argument that Trantino's failure to present his claim to the state courts compels dismissal here. Despite the protracted nature of the litigation surrounding petitioner's conviction, this Court is constrained to agree. The psychiatric examinations conducted by Drs. Collins & Zigarelli under the terms of a rather broad court order (see 1 PT, 8-9) raise serious Fifth and Sixth Amendment issues. Both examinations occurred after indictment, but prior to the appointment of counsel for the petitioner. Compare Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964); United States v. Alvarez, 519 F.2d 1036, 1042 (3rd Cir. 1975); and United States ex rel. Smith v. Yeager, 336 F. Supp. 1287, 1305 (D.N.J.), aff'd, 451 F.2d 164 (3rd Cir.), cert. denied, 404 U.S. 859, 92 S. Ct. 112, 30 L. Ed. 2d 101 (1971); with United States ex rel. Stukes v. Shovlin, 464 F.2d 1211 (3rd Cir. 1972). The state factual record is meager with respect to the circumstances of the examinations because these issues have not been presented to the state courts. State relief is not foreclosed to Trantino on these points. See N.J. Rule 3:22-4; State v. Odom, 113 N.J.Super 186, 189, 273 A.2d 379, 381 (App.Div.1971). In noting that the claims advanced sound in constitutional law, this Court, of course, indicates no opinion whatsoever either upon their merits or upon the question of harmless error if they are meritorious. The habeas statute itself requires these issues to be presented to the state courts in the first instance. The remaining portion of allegation (D) will therefore be dismissed for failure to exhaust state remedies, as required by Title 28 United States Code, § 2254(b).
The parties to this litigation have stipulated that the remaining claims may be decided on the basis of the record as developed in the state courts, supplemented by the evidentiary hearing conducted in the prior federal lawsuit and by certain depositions and affidavits filed in this Court. (Tr. 7/3/74 at 4; Tr. 4/25/75 at 4) Neither party seeks an evidentiary hearing in this Court. United States ex rel. Williams v. Brierley, 291 F. Supp. 912, 914 (E.D.Pa.1968).
(A) The first claim advanced by Trantino is that the state denied him the opportunity to confront and interview eye-witnesses to the crime prior to the trial. It should be noted that shortly after his arrest the state court appointed one of the most highly regarded lawyers in Bergen County as his counsel. This attorney, the head of his law firm, was in turn assisted by a junior. The state court did more. It appointed a defense investigator to assist the assigned attorneys, and, in addition appointed at public expense two defense psychiatrists. The resources thus available to petitioner were indeed considerable.
The names of five of the surviving eye-witnesses to the crime were provided by petitioner to his chief trial counsel, Albert Gross (PCR at 209). Four of the witnesses were females who were patrons of the Angel Lounge at the time of the shootings. The fifth was the bartender. Gross gave these names to the defense's court-appointed investigator, one Webster. The asserted denial of access concerns only the four female witnesses, Patricia MacPhail, Sarah Vander Fliet, Norma Jaconetta and Patricia Falco.
Witnesses belong neither to the prosecution nor to the defense. Both sides have an equal right, and should have an equal opportunity to interview them. United States v. Murray, 492 F.2d 178, 194 (9th Cir. 1973); United States v. Matlock, 491 F.2d 504, 506 (6th Cir. 1974); Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185, 188 (1966), cert. denied, 396 U.S. 865, 90 S. Ct. 143, 24 L. Ed. 2d 119 (1967). However, while it is true that a witness is not to be prevented from speaking to the defense by the prosecution, it is equally true that a witness cannot be required to speak to an investigator or an attorney. The matter rests, or at least it should rest, entirely with the witness. United States v. Matlock, supra, at 506-507; McCabe v. North Carolina, 314 F. Supp. 917, 921 (M.D.N.C.1970).
The issue of access to witnesses was fully litigated at the evidentiary hearing afforded to Trantino on his post-conviction relief petition. Testimony was taken at this hearing from investigator Webster, Prosecutor Calissi, and Gross. At the close of the hearing the state judge made findings of fact and conclusions of law (PCR 466a-474a). Among his factual findings were these: that Sarah Vander Fliet was simply not located by the defense investigator after rather cursory efforts; that Norma Jaconetta was produced for a formal deposition at Gross' request, and that Gross made no objection to the formality of the procedure or to the presence of the prosecutor; and that the remaining witnesses MacPhail and Falco, did not wish to speak with the defense investigator. The state judge further found it to be a fact that the prosecutor had not instructed the witness to refuse to answer questions of the defense. Finally, the court noted that no contemporaneous defense application was made to the court for relief.
An examination of the PCR hearing records reveals ample support for the determinations of fact reached by the state judge, within the meaning of Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), and Title 28 United States Code, § 2254(d). These findings of fact are further corroborated by the depositions taken and exhibits filed in the instant lawsuit.
Pursuant to Title 28 United States Code, § 2251, both parties consented to supplement the record by utilizing the depositions of Patricia Falco, Stephen Delaney (petitioner's investigator in the present action), and Frederick Galda (the First Assistant Prosecutor of Bergen County who helped prepare the Trantino murder prosecution). (Galda Affidavit, para. 2) The depositions of Falco and Galda strongly corroborate the findings of fact made by the PCR judge. The exhibits include the following witness form, executed by MacPhail (R-34, 1); Falco (FD 82); and Kayal (G-D, Ex. R-5):
January 27, 1964
Re: State v. Trantino