On the federal § 2254 proceeding, the trial judge allowed the writ. On appeal, this ruling was reversed. The decision is well worth reading for its clear demarcation of the scope of federal habeas review as well as the statement of the applicable test, which is that the burden in a case like this is even greater than the showing required to establish plain error on direct appeal.
Here, as in Dorey, the issue was whether Brodie was there at the scene at all. If the jury were left with a reasonable doubt on this issue, it was obliged to acquit on both counts, on both the felony-murder and robbery charges.
If he were there, the aggregate evidence adduced showed a robbery and a death that "ensued" from a robbery, i. e., felony murder. There was no evidence from which common law murder, whether of the first or second degree, or of manslaughter, could have rationally been found by a reasonable jury.
Since there was no evidence from which a verdict on those offenses could have been based, there was no deprivation of either due process or of the right of jury trial in denying the request to instruct the jury on the law applicable thereto.
Two other points are worth noting. One is the decision in State v. Powell, 84 N.J. 305, 419 A.2d 406 (1980), briefly reported at 106 N.J.L.J. 93 (July 31, 1980). That decision evidently ruled that where the charge tried is common law murder, the trial judge is obliged to instruct the jury on voluntary manslaughter even though not requested. In the first place, the case did not involve felony-murder, but common law murder. In the second place, the rule announced was not stated to be retroactive, and so is presumed to be prospective only. It reflects, if anything, a change in State law, not in federal law, and may provide Brodie with a basis for seeking post-conviction relief in the State courts under N.J. Court Rule R. 3:22. Until that relief has been exhausted, this court cannot consider the point under 28 U.S.C. § 2254.
The other point is that for nearly 20 years, from State v. McGrath, 17 N.J. 41, 110 A.2d 11 (1954) to State v. Saulnier, 63 N.J. 199, 306 A.2d 67 (1973), the law of New Jersey did not allow a jury presented with the trial of an indictable offense to return a verdict on a lesser included offense that was not indictable. The commonest example was the indictment for atrocious assault and battery, N.J.S. 2A:99-1, a high misdemeanor. The difference between simple assault and battery, N.J.S. 2A:170-26 and atrocious assault and battery is that in the latter a maiming or wounding was an essential element to be shown in addition to the assault and battery itself.
In the 1952 revision of former N.J.R.S. Title 2 into N.J.S. Title 2A, the legislature had downgraded simple assault and battery from an indictable misdemeanor to a non-indictable disorderly act. State v. Maier, 13 N.J. 235, 253, 99 A.2d 21 (1953) upheld the constitutionality of the downgrading, and the provision for trial in municipal court rather than in county court.
Before the downgrading, it had been customary practice in such cases to draft the indictment in two counts, one for the atrocious charge and the other for the simple charge. In State v. McGrath, 17 N.J. 41, 110 A.2d 11 (1953) and State v. Chiarello, 17 N.J. 36, 109 A.2d 803 (1954) the Supreme Court ruled that a county court lacked jurisdiction to enter judgment on the disorderly conduct charge as downgraded, and could only consider guilt or not on the charge of atrocious assault.
With this pronouncement on the law, it became common trial strategy for a defendant facing a charge of atrocious assault to take the stand and admit the occurrence of the incident, but under circumstances showing only simple assault and not atrocious assault. Some number of acquittals ensued, with no means to proceed in municipal court on the simple assault charge in view of the one-year statute of limitations, N.J.S. 2A:169-10.
Thus, even though the essential elements of a simple assault charge are necessarily included in a charge of atrocious assault, no instruction on the lesser offense could be given and no verdict on it could be returned. Defendants were free to testify to simple assault and thereby gain an acquittal on the serious charge. Because of the short statute of limitations on the lesser offense, there was a good likelihood of going scot free on the admitted simple assault as well.
State v. Saulnier, 63 N.J. 199, 306 A.2d 67 (1973) changed that. It involved a drug charge rather than an assault charge, but the principle was the same. Some drug offenses were indictable, others (lesser included) were disorderly conduct and not indictable.
In Saulnier the Supreme Court recognized the error of McGrath and Chiarello in grounding their ruling on the statutory jurisdiction of the County Courts. It noted that all indictments are returned to the Superior Court, which has original general jurisdiction in all causes, a constitutional grant provided for in N.J.Const. 1947, Art. 6, sec. 3, par. 2, which no legislation could reduce, and that allocation of indictments to the County Courts for trial was an administrative, not a jurisdictional matter.
Since that decision, the trial of an indictable offense may result in an acquittal of that charge, but in conviction of a lesser included offense which is not indictable at all.
But Saulnier only erased the erroneous rule on jurisdiction. It did not alter the widely accepted rule that instructions on lesser included offenses should be given where the evidence warrants it. It does not say, nor does any decision say, that a defendant on trial for burglary is automatically entitled to an instruction on malicious injury to property, a disorderly act under N.J.S. 2A:170-36, merely because he broke a lock in making his unlawful entry.
In sum, this is a case in which the evidence was not such as to support a verdict on common law murder, of any degree, or of manslaughter. The issue was whether Brodie was present and participating. If there were a reasonable doubt on that issue, acquittal was called for. If he was found to be present and participating, beyond a reasonable doubt, there was nothing in the evidence to support a verdict of common law murder or manslaughter. The felony-murder statutes are designed to treat as murder that which would be an unforeseen or accidental death, and to classify it as first degree murder, when the death "ensues" from another specified crime, such as robbery. The instructions having been proper on the elements of robbery, and on felony-murder, and the evidence being sufficient to conclude that a reasonable jury could rationally find the elements to have been proven beyond a reasonable doubt, the petition must be denied.
One final word. In a period of more than 7 years, this is the first § 2254 petition presented for the prisoner by the N.J. Public Defender's Office that the court is aware of. The 1967 law creating that office, after some 3 years' experimental work in Essex County after Gideon, expressly lists as a duty that "representation for indigent defendants (a) may be provided in any Federal Court in any matter arising out of or relating to an action pending or recently pending in a court of criminal jurisdiction of this State"-an assignment clearly embracing a § 2254 petition. The N.J. Public Defender, despite bugetary constraints, is to be complimented for having discharged that duty, and for having done so well, in this proceeding.
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