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August 12, 1981

U.S. ex rel. RENE SANTANA, Petitioner
PETER FENTON, Superintendent of Rahway State Prison, and THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, Respondents

The opinion of the court was delivered by: BIUNNO

 BIUNNO, District Judge.

 On the morning of December 16, 1974, armed robbers entered a basement apartment on Roseville Avenue, in Newark, NJ and announced a "hold up". One of the occupants, Remigio Sanchez, beat one of the robbers on the head with a baseball bat severely enough to cause his death. In the process of this confrontation, Sanchez himself was shot in the abdomen, and eventually died about a month later.

 Two others, petitioner Santana and his co-defendant Rodriguez, were later indicted on two counts of felony murder, one count of attempted robbery, and a count of attempted robbery while armed.

 Trial was to a jury, which returned verdicts of not guilty on all counts as to Rodriguez, and verdicts of guilty on all counts as to Santana. Santana has filed a habeas petition here under 28 USC ┬ž 2254. *fn1"

 Of the persons in the basement apartment when the robbers entered, only one, Mr. de la Rosa, testified at trial. Sanchez, who had died, was not a witness even to the point of the offering of a dying declaration, N.J.Ev.Rule 63(5). Another person present, Guido Sanchez, along with his wife and children, had returned to Santo Domingo between the event and the trial, and were not witnesses who testified.

 There was no doubt of the identity of one of the robbers, generally referred to by the nickname "Columbia". This was the robber who was beaten on the head with the baseball bat and who died after being taken to a hospital. He was, in fact, one of the corpus delicti.

 The robbers had entered wearing ski masks, and after the shooting and beating were over in this unsuccessful robbery attempt, Columbia was left at the scene and when his ski mask was removed, was recognized. There was no claim that he was not at the scene or that he did not participate in the attempted armed robbery.

 The state's testimony was that two masked and armed robbers entered the basement apartment. One of them, Columbia, was left there mortally wounded and the other escaped. A neighbor in the building, hearing the gunfire, looked to see what was happening and saw the escaping robber pull off his ski mask, roll it up and put it back on as a cap. This eyewitness at the scene identified the escaping robber as the petitioner, Santana. This witness was Roberto Gutierrez. *fn2"

 There was considerable questioning of the witness de la Rosa, the only occupant at the time of the robbery to testify, as to the number of masked robbers who entered. He said on cross-examination that when interviewed by defense counsel through an interpreter, he had told them that there were three masked robbers, not two. He said that in a later conversation with the other confronted occupant, Guido, he agreed with Guido that only two robbers had entered, that he had never indicated either two or three to the prosecution, and that his trial testimony before the jury that there were only two was the truth. He readily conceded that he had lied in various pretrial interviews. He said he had lied at the request of the deceased victim, Sanchez, to protect him. He said it was usual for him to lie to anyone he felt was "against him".

 The foregoing summary outlines the testimony against Santana by persons at the scene of the crime. Other evidence offered by the State, if believed, tended to corroborate the identification of Santana. *fn3"

 Another witness, Pepin, testified that on the evening before, December 15th, a Sunday, he had been at the home of Carmen Crespo and Columbia for an informal christening of Rodriguez's baby. He said he spent most of his time there outside, playing craps, and that at one point Santana and Columbia insisted that he go along with them in a car for what he took to be a holdup at the same location that the Monday holdup took place. The witness de la Rosa corroborated him to the extent of testifying that an attempt had been made to break in to the basement apartment on Roseville Avenue on Sunday evening, without success.

 Trial was conducted along two major lines: (1) cross-examination of the major witnesses for the State by attacking their credibility through admittedly inconsistent out-of-court statements, bias, interest and the like, and (2) alibi witnesses whose testimony was capable of raising a reasonable doubt that each of the defendants participated in the crime. The heaviest attacks were to the credibility of Carmen Crespo, the widow of the robber Columbia, and to the witness de la Rosa who was in the basement apartment when the robbers appeared. The cross-examination for both Santana and Rodriguez was thorough and skillful but in the end raised questions of credibility for the jury.

 The verdicts returned reflect the jury's evident conclusion that there was a reasonable doubt that Rodriguez was at the scene, despite Carmen Crespo's inculpatory testimony about his presence at her house on the morning of the 16th when she said Santana distributed guns and masks. They evidently did not harbor doubts about Santana's participation, possibly due to the eyewitness testimony of the neighbor placing him at the scene of the crime, coupled with the corroborating testimony.

 The petition does not question the adequacy of the evidence to support the verdicts against Santana under the test articulated by Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Although not raised, the court has reviewed the lengthy trial transcript several times with this test in mind, and finds that the test has been met.

 Rather, the focus of the collateral attack is aimed at two related items: one is that after the evidence was closed and all parties had rested, and after both the defense and the State had completed their summations, petitioner Santana through his attorney and by his own statements to the trial judge asked that he be allowed to take the stand and testify, which he had not done during the trial; and, two, the request was made (it was said) because of a passage during the State's summation as part of the argument to rehabilitate the credibility of the witness Carmen Crespo, who had been the subject of vigorous and robust attack ...

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