affirmative reference to the salient points of Smith's trial testimony. The examiner offered the unqualified opinion that Smith was telling the truth when he answered each of the test questions in the affirmative. The State then offered the gun from its labs, which was identified by Smith as having been similar to that owned by petitioner, into evidence and rested its case.
Petitioner offered the testimony of several witnesses from his job in an effort to establish an alibi for the estimated time of death based upon the medical evidence. Petitioner did not testify. After some nine hours of deliberation the jury found petitioner guilty of murder in the first degree.
Petitioner now claims that a variety of errors entitle him to a Writ of Habeas Corpus. His first claim is that the trial court erred in permitting the State to introduce hearsay evidence through the testimony of Craig Brizak relating to the decedent's state of mind. (Tr. 5/8/74, at 12-14) Petitioner further contends that the trial court erred in permitting the prosecutor to argue to the jury that such evidence could also be considered on the issue of identity. (Tr. 5/10/74, at 43) In support of his position petitioner relies upon the case of United States v. Brown, 160 U.S.App.D.C. 190, 490 F.2d 758 (1974). In the context of this proceeding, petitioner's argument is without merit.
Petitioner contends here that although the evidence offered by Brizak might be admissible, in his case the trial court erred in not exercising its discretion to exclude. The admission of this testimony simply raises no federal constitutional issue. It was within the scope of the New Jersey Rules of Evidence, see N.J.R.Ev. 63(12). It would be admissible under the Federal Rules of Evidence, see F.R.Ev. 803(3). While the court in United States v. Brown, supra, reversed a federal conviction on similar grounds, it did not purport to lay down a constitutional rule in doing so. The Supreme Court has explicitly stated that the constitutionally guaranteed right of confrontation does not preclude the use of hearsay evidence, see Dutton v. Evans, 400 U.S. 74, 80-82, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970). Similarly, even evidence admitted in violation of a state hearsay rule may not necessarily violate the right to confrontation. See California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). The trial court's decision to receive the initial evidence presented by Brizak was well within the scope of discretion confided to the New Jersey courts. The subsequent argument by the prosecutor of which petitioner complains passed entirely without objection from the defense. Cf. Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). No constitutional error was committed, and the first ground for relief is without merit.
Petitioner next contends that the introduction of a weapon described by several witnesses as "similar to" the gun owned by petitioner was error. The admission of this weapon into evidence would be discretionary with either a New Jersey or a federal trial court. An adequate foundation was laid through the testimony of the ballistics expert and that of Craig Smith. The jury was explicitly told that the weapon came from the gun collection of the State Police. No possible constitutional error appears here.
The third contention raised by the petitioner is that various errors were committed during the course of the trial court's charge. Petitioner first complains that four errors occurred during the trial court's charge to the jury, including an erroneous instruction on the use of prior inconsistent statements, an erroneous instruction on the use of prior convictions, inadequate instruction on the use of circumstantial evidence, and an instruction that any verdict reached had to be unanimous. None of these points were objected to by defense counsel at the time of the trial. After a careful review of the entire charge, see Cupp v. Naughten, 414 U.S. 141, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973), this Court finds each and every one of the alleged claims of error to be insubstantial. In view of the acquiescence of the defense in the alleged "errors", there is absolutely no federal issue raised. See Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976).
Next, petitioner makes a variety of attacks on rulings of the trial court with respect to communications with the jury. Petitioner claims that the trial court erred when it complied with a jury request to have the testimony of Craig Smith and that of the polygraph examiner re-read. Petitioner contends that it was error for the trial court to refuse the defense request that such a reading be accompanied with the portion of the charge relating to their credibility. This contention is without constitutional basis. Petitioner next claims that the trial court erred in refusing a defense request that the jury be instructed to avoid all reportage, movies, television shows, documentaries or newspaper accounts of any crime during the duration of the trial. The trial court correctly required the jurors to avoid all publicity about the instant case. No more was constitutionally required, and this contention is not even coupled with a claim that this case was attended with any massive publicity. Similarly, the trial court refused to interrogate jurors on a daily basis concerning their adherence to his instructions. This too raises no claim for review on habeas jurisdiction, and in fact might well have been harmful, rather than helpful to petitioner.
Finally, petitioner contends that he was denied due process of law in that the trial court refused his request to charge the jury on manslaughter. Such an instruction was utterly unwarranted under the circumstances of this case, a gangland style "execution", and raises no constitutional issue. See United States ex rel. Wilson v. Essex County Court, 406 F. Supp. 991, 999-1000 (D.N.J.1976); United States ex rel. Victor v. Yeager, 330 F. Supp. 802-805 (D.N.J. 1971); United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3rd Cir. 1974) is clearly distinguishable.
Petitioner next argues that he was deprived of exculpatory information concerning the plea bargaining between the State and Craig Smith. It is beyond question that the State has an obligation to disclose arrangements made to secure the testimony of a witness in a criminal proceeding. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); United States ex rel. Dale v. Williams, 459 F.2d 763 (3rd Cir. 1972). But the record of the instant case demonstrates that the full extent of such promises was brought to the attention of the jury both on direct and on cross examination. That the jury ultimately chose to reject the defense attack on the credibility of Smith's testimony does not raise an issue for a federal court on habeas jurisdiction.
Petitioner further contends that he was denied due process by several rulings as to the conduct of the trial, including the failure to sequester jurors, the permission granted to a detective to remain at counsel table during trial after petitioner alleged that he might be called as a defense witness (he was not). Neither of these rulings violated any constitutionally secured right. See Young v. Alabama, 443 F.2d 854 (5th Cir. 1971), cert. denied, 405 U.S. 976, 92 S. Ct. 1202, 31 L. Ed. 2d 251 (1972); United States ex rel. Mayberry v. Yeager, 321 F. Supp. 199 (D.N.J.1971); United States v. Weinberg, 345 F. Supp. 824 (E.D.Pa.1972), modified on other grounds, 478 F.2d 1351 (3rd Cir. 1972), cert. denied, 414 U.S. 1005, 94 S. Ct. 363, 38 L. Ed. 2d 242 (1973); United States v. Rollins, 522 F.2d 160 (2nd Cir. 1975), cert. denied, 424 U.S. 918, 96 S. Ct. 1122, 47 L. Ed. 2d 324 (1976).
Petitioner's next assertion of error is the admission into evidence of the expert testimony from the polygrapher who examined Craig Smith. Such evidence is still debated in a variety of jurisdictions, see United States v. Alexander, 526 F.2d 161 (8th Cir. 1975); United States v. Oliver, 525 F.2d 731 (8th Cir. 1975), cert. denied, 424 U.S. 973, 96 S. Ct. 1477, 47 L. Ed. 2d 743 (1976); United States v. Demma, 523 F.2d 981 (9th Cir. 1975). New Jersey permits such evidence to be introduced upon the knowing, voluntary and intelligent stipulation of both parties, State v. McDavitt, 62 N.J. 36, 297 A.2d 849 (1972). Here the record discloses just such a voluntary, knowing and intelligent stipulation on the part of petitioner; see Tr. (Motion Hearing) 29, 33-35, 36, 38. Under the circumstances of this case, the admission of the testimony presents no constitutional issue.
Petitioner then claims that the prosecutor's summation contained inflammatory material. This contention is without merit. United States ex rel. Ford v. New Jersey, 400 F. Supp. 587 (D.N.J.1975).
Finally, petitioner claims that he was denied due process when he was sentenced without the preparation of a presentence report. This contention is without merit. Petitioner specifically waived the preparation of such a report. The only discretion which the judge was in a position to exercise was whether to make the life term to be imposed consecutive to or concurrent with other sentences petitioner was serving. Petitioner refused to say anything at sentence. His tactical election to proceed to sentence without a report raises no issue here. See Lawson v. Riddle, 401 F. Supp. 410 (W.D.Va.1975).
For the foregoing reasons, petitioner's petition for a Writ of Habeas Corpus will be denied.
© 1992-2004 VersusLaw Inc.