APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (District of Columbia, Civil No. 76-942).
Weis, Circuit Judge, Tom C. Clark,*fn* Associate Justice and Garth, Circuit Judge.
Defense counsel argued to the jury that petitioner had not participated in a burglary, though conceding that someone had committed the crime. Thereafter, the state trial judge refused to instruct the jury on the elements of breaking and entering and larceny because the facts showing breaking and entering and larceny had been admitted. In the circumstances of this case, we find no reversible constitutional error and vacate the grant of habeas corpus by the United States District Court.
Petitioner was convicted by the New Jersey state courts of entry with intent to steal and larceny of a safe. The Superior Court of New Jersey, Appellate Division, affirmed, and the Supreme Court of New Jersey denied certification. Petitioner then sought a writ of habeas corpus which the district court granted, subject to the right of the State to retry him.
At the trial in the state court, the prosecution introduced evidence that at about 3:00 A.M. on September 2, 1973, the night watchman for the Bamm Hollow Country Club saw two men tugging at the safe in the club office. He left the clubhouse and described what he had seen to one of the grounds keepers, who went to a nearby house and summoned the police. As the prowl car entered the club parking lot, a black Chrysler, which had gone on to the grass near the clubhouse, went into reverse and began to back into the parking lot. The police stopped the unlighted car and apprehended the petitioner and another occupant.
The safe was found outside the clubhouse, leaning against a light pole a short distance from the front steps. The safe had been scraped on one side, and the slate steps of the clubhouse had been damaged as if the safe had slid down them. Paint chips from the safe were found on the steps. The metal holders in a jalousie window in the rear of the building had been bent away and a number of glass slats had been removed, leaving a gap large enough for a man to crawl through. No prying tools were discovered on the scene.
In searching the Chrysler, the police found the trunk completely empty, the spare tire and tools removed. However, in the passenger's compartment, they observed two pairs of gloves and a flashlight. The gloves were wet, and the officers noted a considerable amount of dew on the ground at the time. Laboratory examination of the gloves revealed the presence of chips of paint similar to that on the office safe.
During his opening address to the jury, defense counsel argued that no fragments of glass or paint from the safe had been found on the shirt or pants of the defendants, "as you might expect they should, had they actually entered or had they been the ones who did the breaking." He also emphasized "mere presence of people at the scene of a crime . . . is not evidence of participation in that crime . . . ."
In his closing remarks, the defense lawyer said that the case for the prosecution was based on possibilities,
"but there are certain things in it from which you can find certainty about which there is no dispute whatsoever. For example, there is no dispute with respect to the time . . . the time you will recall that Mr. Craddock [the night watchman] sees two men pulling the safe is 3:15. The time you will recall when the Officer arrives on the scene is 4:18."
"It's a substantial period of time in that it approximates one hour and that is certain, that is positive testimony from that Witness Chair which is wholesome, which is reliable and which is trustworthy because it's confirmed by different people."
"You can conclude, therefore . . . that whoever came there to remove this safe abandoned the notion and left it there because if there are two men in there at 3:15, twenty minutes ...