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February 19, 1976

UNITED STATES of America ex rel. Thomas TRANTINO, Petitioner,
Robert HATRAK, etc., Respondent

The opinion of the court was delivered by: STERN

 This is a petition for a writ of habeas corpus to compel the release of Thomas Trantino from state custody. Trantino was convicted of murder in the first degree in connection with the 1963 slaying of police officer Peter Voto and Gary Tedesco. He is presently incarcerated in the New Jersey State Prison at Rahway, serving a sentence of life imprisonment.

 This case has accumulated a lengthy procedural history. The original judgment of conviction was entered by the Bergen County Court in 1964, following trial by jury. The petitioner was sentenced to death. The New Jersey Supreme Court affirmed the conviction on mandatory appeal. State v. Trantino, 44 N.J. 358, 209 A.2d 117 (1965) (Weintraub, C.J.). A motion for a new trial was then filed in Bergen County Court. After an evidentiary hearing, the motion was denied. The denial of relief was affirmed on appeal by the New Jersey Supreme Court. State v. Trantino, 44 N.J. 358, 209 A.2d 117 (1965), cert. denied, 382 U.S. 993, 86 S. Ct. 573, 15 L. Ed. 2d 479 (1966), reh. denied, 383 U.S. 922, 86 S. Ct. 901, 15 L. Ed. 2d 679 (1966).

 Petitioner next brought a petition for a writ of habeas corpus in United States District Court. After an evidentiary hearing, the petition was dismissed for failure to exhaust state remedies. Trantino v. Yeager, Civ. No. 351-66 (D.N.J., June 24, 1966). Trantino then filed a petition for post-conviction relief in Bergen County Court. The petition was denied after another evidentiary hearing. The Supreme Court of New Jersey affirmed the denial of post-conviction relief. State v. Trantino, 60 N.J. 176, 287 A.2d 177 (1972). In the same year, however, the petitioner succeeded in vacating the death sentence originally imposed. He was re-sentenced nunc pro tunc to life imprisonment. State v. Funicello, et al., 60 N.J. 60, 286 A.2d 55 (1972), cert. denied, 408 U.S. 942, 92 S. Ct. 2849, 33 L. Ed. 2d 766 (1972). In 1974 the petitioner filed the present lawsuit.

 Trantino's trial in Bergen County Court took place during February 1964. After establishing the corpus delicti, the State presented the testimony of three eye-witnesses and one ear-witness. Each testified that he or she saw or heard the petitioner shoot the victims. *fn1" The defense presented the testimony of petitioner Trantino, that of Trantino's mother and brother, and that of a psychiatrist. In rebuttal the State presented the testimony of the woman who drove Trantino to New York following the murders and that of the State's own psychiatrist. The initial opinion of the New Jersey Supreme Court affirming the conviction contains a summary of the testimony adduced at trial:

On the evening of August 25, 1963 Trantino and Frank Falco committed a robbery in Brooklyn, following which they and some companions went to the Angel Lounge, a tavern in Lodi, New Jersey, for pleasure. During the early morning of the 26th, Trantino or someone else fired two shots in horseplay. Sergeant Peter Voto of the Lodi Police Department and Gary Tedesco, a young man who was about to be appointed a patrolman and who accompanied Sergeant Voto for a view of police routine, entered the tavern, presumably to investigate the report of gunfire.
Trantino and Falco fled, both returning to New York City. Falco was killed there a few days later by police officers who were trying to apprehend him. Trantino surrendered to New York authorities and was extradited to this State.
The resume of events given above was the State's version of the murders. In his defense Trantino testified that on the 25th he took two Dexedrine pills and consumed a considerable quantity of liquor from the afternoon of that day to the time of the homicides on the 26th. He denied any recollection of the slaying of the officers, saying he recalled only a loud explosion, followed by a confusion of wild sound and light within which Falco appeared to be a devil with arched eyebrows. He claimed he next recalled entering the car of a Mrs. Norma Jaconnetta (she left the tavern hurriedly after the shooting) and leaving the car with Falco when she was unable to start it. He related a frenzied flight to the home of a Mrs. Patricia MacPhail (she too had been at the Angel Lounge and had left just before the officers were shot), and described the drive with her help to New York. He insisted those events were heavily clouded.
Although Trantino thus disavowed awareness of the homicides, Mrs. MacPhail testified he told her the policemen were killed, at first saying that Falco had killed them and later saying during the ride to New York City that it was he, Trantino, who had slain them and that he did so to help Falco who was wanted for murder in New York.
The defense also offered psychiatric testimony . . .

 State v. Trantino, 44 N.J. 358, 361-363, 209 A.2d 117, 118-119 (1965).

 While the psychiatric testimony presented by the defense was intended to negate the possibility that petitioner was capable of forming culpable intent at the time of the murders, it also further inculpated Trantino. In recounting the interview upon which he based his medical conclusions, the defense psychiatrist testified to certain admissions made by Trantino which were inconsistent with important portions of his direct testimony. *fn2" The weight of the evidence adduced at the state trial is normally beyond the purview of a federal court in the exercise of its habeas corpus jurisdiction, absent allegations of harmless error. Cf. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). It is nonetheless clear from the state record that the evidence of Trantino's factual guilt was overwhelming.

 In this petition, Trantino claims that his conviction was obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution. He alleges six specific violations of his rights. These are, as he has categorized them:

 (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 ...

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