The opinion of the court was delivered by: STERN
This is a petition for a writ of habeas corpus to compel the release of George and Eddie Johnson from state custody. Petitioners are brothers. They were jointly indicted for armed robbery, and convicted after jury trial in Superior Court in 1972. Petitioners commenced this lawsuit by filing a joint pro se petition and upon their request, this Court appointed counsel to represent them jointly. Petitioners have elected to proceed with four of the numerous grounds asserted in the original pro se petition.
The State has conceded, and the record demonstrates, that petitioners have exhausted their state remedies with respect to these four claims. See Title 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). Neither the State nor petitioners seek an evidentiary hearing in this Court. (Tr. 2/6/76 at 2); United States ex rel. Williams v. Brierley, 291 F. Supp. 912, 914 (E.D.Pa.1968).
Two of the claims put forward are applicable to both petitioners. Two claims apply only to Eddie Johnson. Although the original petition was filed jointly and the events complained of occurred before and during the same state trial, each petitioner is entitled to and has received individual consideration in this proceeding.
The crimes charged in the indictment occurred on the evening of August 28, 1971, when the patrons of a bar in Haledon were robbed by three armed men. An indictment was returned some months later by the Passaic County Grand Jury, charging petitioners, one Dennis Wilbely and a John Doe with various counts of robbery and armed robbery. Jury trial of this case was preceded by an eight-day Wade-Simmons-Stovall hearing conducted by the trial judge. At the close of the pretrial hearing, the trial judge made various rulings on the admissibility of identification evidence, and jury trial began.
Eddie Johnson presented the testimony of several witnesses. The first was an attorney. He testified that he had seen Eddie Johnson in his office several weeks before the robbery. At that time, according to the witness, Eddie Johnson had a shaven skull and a clean-shaven face. This testimony, if credited, would have served to impeach the in-court identifications of Eddie Johnson, none of which referred to a shaven pate and most of which referred to sideburns. Eddie Johnson next called a police detective to the stand. A proffer of testimony describing sound police practices in robbery investigations was rejected by the trial court. Eddie Johnson then rested without testifying.
George Johnson rested his case without presenting a defense. The third co-defendant presented several alibi witnesses and rested without testifying himself. After six hours of deliberation the jury convicted all three defendants on each count of the indictment.
Petitioners base their claim to the Writ on four grounds. First, they assert that they were denied their right to a jury determination of innocence or guilt by errors in the trial court's charge. Second, each petitioner claims to have been prejudiced by improper comment by the prosecutor and the trial court on his failure to testify. Third, Eddie Johnson contends that his prior criminal record was erroneously admitted into evidence on the State's case. Finally, Eddie Johnson argues that the trial court erred in not suppressing in-court identification testimony which was tainted by suggestive pretrial police conduct.
The first claim for relief is equally applicable to both petitioners. It is grounded upon asserted errors in the trial court's charge to the jury. The State concedes that the trial court failed to instruct the jury on the essential elements of the crimes charged in the indictment. The Appellate Division of the Superior Court noted the omission, but affirmed on the application of New Jersey's plain error rule. N.J.R. 2:10-2; State v. Johnson, Nos. A-3185-71 and A-1476-72 (App.Div. May 29, 1974) at 5-6. Petitioners contend here that the charge deprived them of their constitutional right to a jury trial.
The Sixth and Fourteenth Amendments of the United States Constitution conferred upon each petitioner an absolute right to a jury trial, absent a valid waiver. Duncan v. Louisiana, 391 U.S. 145, 147-158, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). Such a trial must normally include a jury determination of each of the essential elements of the offenses charged in the indictment. In Re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Christoffel v. United States, 338 U.S. 84, 89-90, 69 S. Ct. 1447, 93 L. Ed. 1826 (1949). Cf. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). The trial record of this case, however, presents the issue of waiver. See Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), 44 U.S.L.W. 4609, 4613-4614 (1976) (Powell, J., concurring).
As a matter of trial strategy neither petitioner contested the State's assertion that an armed robbery took place under the circumstances described by the State's witnesses. In his opening statement, counsel for Eddie Johnson made it clear to the jury that the only issue was identification:
I'm going to have to come back to you at the end of the case and complain, I think I will, about the police work that's done in this case. They could have done so much really to help us and they didn't. The proofs will show that one of the least experienced officers from Haledon Police Force was assigned to this armed robbery. . . .
Eddie Johnson doesn't fit the description of any of the people who were in the tavern on the night in question.
The police officer who handled this situation didn't have any desire to defend the roles of the holdup men. . . .
(Tr. 5/10/72, at 12-20) Counsel for George Johnson adopted a similar trial strategy:
It's a terrible crime that occurred. Something should be done about it. . . .
But these are witnesses that saw a crime, a crime of violence and a stealing, taking away someone else's possession. . . .
I'm going to tell about one witness, a woman who was beat up during this robbery. . . .
The witnesses were involved in a terrible crime. . . .
Three people walked into a ...