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December 17, 1976

UNITED STATES of America ex rel. George R. JACQUES, Petitioner,
Gary HILTON, Superintendent, New Jersey State Prison at Trenton, 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 George Jacques from state custody. Jacques was convicted of first degree murder after a four day jury trial in 1974. He was sentenced to the mandatory term of life imprisonment. His conviction was affirmed on direct appeal by the Appellate Division in an unreported opinion. State v. Jacques, No. A-2875-73 (App.Div., Nov. 12, 1975). Certification was denied by the New Jersey Supreme Court. State v. Jacques, 71 N.J. 340, 364 A.2d 1072 (1976). Upon the denial of his petition for certification petitioner commenced the instant lawsuit. The State concedes, and the record demonstrates, that petitioner has exhausted his state remedies with respect to the claims he now advances. 28 U.S.C. ยง 2254(b); Zicarelli v. Gray, 543 F.2d 466 (3rd Cir. 1976) (en banc).

 Petitioner was charged with the murder of Edmund Kornacki in Middlesex County Indictment No. 28-73. He pleaded not guilty to the charges. An initial trial ended in a mistrial after the jury had retired when it was discovered that one of the jurors had been exposed to a newspaper article concerning the case. Retrial followed immediately. The multiple assertions of error made by the petitioner require a review of the testimony adduced at the second trial, which resulted in his conviction.

 On March 18, 1973, two boys discovered a body in a deserted wooded area of South Plainfield. Police investigation revealed that the decedent, identified as Edmund Kornacki, had been shot four times. One of the bullet wounds was in the back of the head. The other three wounds formed a small pattern on the back of the corpse. The surrounding earth was not disturbed. Three bullets were recovered from the ground immediately underneath the torso of the victim. The fourth bullet was removed from Kornacki's head at the time of the autopsy. Expert ballistics testimony established that all four bullets recovered from Kornacki's body had been fired from the same weapon. While the type of weapon could not be precisely identified from the markings on the slugs, the State's expert testified that the rifling marks were consistent with the inference that the weapon was a Czech.32 automatic pistol.

 The murder weapon was not recovered by the authorities. The State, however, was able to present substantial circumstantial evidence linking such a weapon to petitioner. One informant described an incident at petitioner's house in February 1973. At that time petitioner was sprayed with water from a malfunctioning sump pump hose next to his house. The informant told police that petitioner, enraged, went to his car, took out an automatic pistol, and fired a round into the pump hose. On the basis of this information the police obtained a search warrant for the earth near the house. When the warrant was executed the earth around the house was excavated and a bullet was recovered. Comparative ballistics examination revealed that this bullet was fired from the weapon used to kill Kornacki.

 The State next presented the testimony of Craig Smith. Smith testified that he was a close associate of petitioner during the winter of 1972-1973. He stated that petitioner owned a Czech.32 automatic at that time, and identified a State's exhibit as being of a similar make and model. Smith in fact testified that he had once been awakened by petitioner holding the gun to his head in a macabre sort of jest.

 Smith told the jury that petitioner had a motive to kill Kornacki. Smith stated that Kornacki had frightened petitioner's sister-in-law in the autumn of 1972, and that petitioner and his brother had vowed to take vengeance. Smith testified to several attempts made by petitioner to locate Kornacki, with the expressed intention of beating him up or killing him. Smith himself was recruited to aid in these efforts to find Kornacki in February 1973. Smith recounted a conversation with petitioner during this period when petitioner stated that the "professional way" to kill someone was to shoot the victim in the back of the head and then to fire the remaining bullets into the torso.

 Finally, Smith testified to two highly incriminating conversations with petitioner. The first of these conversations took place several days before Kornacki's disappearance. At that time petitioner showed Smith a piece of paper which had Kornacki's address on it. Petitioner indicated by word and gesture that he intended to make use of the information. The last conversation recounted by Smith took place on the day that the body was discovered. Smith testified that petitioner admitted the killing to him, and described the circumstances and a ruse used to lure Kornacki into petitioner's car. According to Smith, petitioner was in high spirits at the successful outcome of his efforts.

 On cross-examination, the defense directly attacked Smith's credibility as a witness. The defense was at pains to review the rather substantial plea bargaining between Smith and the State with respect to other pending cases. The bargain included a prosecutorial recommendation of a non-custodial sentence on all pending cases, although Smith's potential exposure was in excess of twenty years.

 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. ...

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