After full review of the record, the court finds that the testimony challenged was not so conspicuously prejudicial as to amount to a deprivation of a fair trial.
Johnson's next point is that he was prejudiced when a witness said he had seen the two defendants in the courthouse hallway "cuffed together" (12 Tr 575-3 to 13 Tr 585-6), and a motion for mistrial was denied. The matter must be put in context. During cross-examination of an eyewitness at the robbery, questions were asked whether he had seen the co-defendants together at any time since the robbery, and he said he had "Thursday, when I was waiting outside to ..." (evidently in the course of a Wade hearing), when the witness had been called to testify. He was then asked what observations he made about them, "what did you see?" The prosecutor objected and explained at sidebar that he did not know whether they were handcuffed at the time. Counsel was directed to lead the witness to avoid the "pitfall". After further questions that he did not see them standing together, but saw them walking, counsel asked: Q: "You saw them walking, and were they together?" A: "Yes, they were cuffed together." Further questioning continued but the subject did not come up again. At the next sidebar, called for a different discussion, Johnson's attorney moved for mistrial on the ground that the testimony was prejudicial, and the motion was denied. The court said it did not consider it so prejudicial as to require a mistrial.
Even when jurors themselves see a defendant in handcuffs, it has been ruled that this is not so prejudicial as to command a mistrial, U. S. v. Chrzanowski, 502 F.2d 573, at 576 (CA3, 1974). The granting or denial of a mistrial is ordinarily discretionary, depending on the trial court's appraisal of probable effect on a fair trial. There has been no showing here that it is strikingly clear that a fair trial could not have been had in all the circumstances. This is also the New Jersey rule. See State v. Di Rienzo, 53 N.J. 360, at 383, 251 A.2d 99 (1969); State v. Jones, 130 N.J.Super. 596, 328 A.2d 41 (Law, 1974).
Accordingly, this ground is insufficient to support issuance of the writ.
Finally, it is claimed that the court improperly denied a motion for separate trial of the two robberies charged in the indictment.
Joinder of offenses is allowed if they are of the same or similar character, N.J. Court Rule R. 3:7-6. A motion for severance under N.J. Court Rule R. 3:15-2 is addressed to the court's discretion.
In discussing the same point on the co-defendant's appeal, the Appellate Division noted that the two robberies were clearly part of a common plan or scheme, evidenced by the fact that after the first robbery the money was hidden and defendants immediately committed the second robbery. See State v. Whipple, 156 N.J.Super. 46, 383 A.2d 445 (App.1978), incorporated by reference in ruling on Johnson's appeal. The record of the trial shows that five prosecution witnesses were essential to the proof of both robberies, that the robberies were committed within an hour of each other, that both targets were liquor stores, and that the same gun was used.
There is no clear showing that the joint trial precluded a fair trial or made such a trial unlikely. The instructions made clear that the jury was to consider each charge and each defendant separately. Joinder can rise no higher than a question of law involving the exercise of the trial court's discretion. Failure to persuade the trial and appellate courts otherwise does not make habeas available as a further appellate step. Torrance v. Salzinger, 195 F. Supp. 804, at 807-808 (D.Pa.,1961), affd. 297 F.2d 902 (CA3, 1962).
No requisite showing having been made, this claim is insufficient to support the writ requested.
Finally, it should be observed that while the joinder of Williams, the Maryland warden, was proper at the time the petition was filed in view of Johnson's custody then, see 28 U.S.C. § 2254, Rule 2(b) (Pub.L. 94-426), the later parole by Maryland and Johnson's transfer to New Jersey to serve the formerly "future sentence" ends any reason for continuing Williams as a respondent. No challenge was directed to the Maryland sentence, even though Johnson may be required to serve some part of it in the future in the event he violates a condition of parole.
Accordingly, the petition will be denied in respect to New Jersey, and dismissed as to Maryland.
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