judge further observed that petitioner was highly intelligent and knowledgeable about police procedures due to his prior arrests, convictions and time spent on parole (4 Tr. 58). Given the totality of the circumstances, the suppression hearing judge found that petitioner's statements were voluntary.
Under § 2254(d), the suppression hearing judge's findings of fact are presumptively correct. After a careful review of the record, this court finds that petitioner has failed to rebut this presumption by convincing evidence, and that the state court's findings of fact, including its credibility determinations, are supported by the evidence presented at the suppression hearing. Applying the legal test of voluntariness to these facts, this court finds that petitioner's statements were voluntary.
Petitioner also claims that the June 23 statement was obtained in violation of his Miranda rights. The record shows that petitioner received proper Miranda warnings, and executed written waivers, at approximately 6:30 A.M. on June 22 and again at approximately 11:15 P.M. on June 23, immediately prior to his giving the written statement. Petitioner argues that this written confession must be excluded since it was the direct product of an oral confession obtained by police at approximately 10:00 P.M. on June 23 without their having given petitioner a new set of warnings.
Miranda does not require that a fresh set of warnings be repeated each time the police resume interrogation after an interruption. Although the better practice is to readminister warnings, failure to do so will not necessarily result in the inadmissibility of the second statement. The ultimate question in such cases is whether the defendant waived his legal rights. See Miller v. United States, 396 F.2d 492, 495-96 (8th Cir.1968), cert. denied, 393 U.S. 1031, 89 S. Ct. 643, 21 L. Ed. 2d 574 (1969); Maguire v. United States, 396 F.2d 327, 331 (9th Cir. 1968), cert. denied, 393 U.S. 1099, 89 S. Ct. 897, 21 L. Ed. 2d 792 (1969); Grennier v. Israel, 472 F. Supp. 1301, 1303 (E.D.Wisc. 1979); Moore v. Hopper, 389 F. Supp. 931, 933-34 (M.D.Ga.1974), aff'd, 523 F.2d 1053 (5th Cir.1975); United States v. Kinsey, 352 F. Supp. 1176, 1178 (E.D.Pa.1972).
The standard for waiver is whether there was "an intentional relinquishment or abandonment of a known right." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938); accord Brewer v. Williams, 430 U.S. 387, 405, 97 S. Ct. 1232, 1242, 51 L. Ed. 2d 424 (1977); Brown v. Cuyler, supra, 669 F.2d at 160. The government has the burden of establishing waiver by a preponderance of the evidence. See id.
Petitioner has not rebutted the presumption of correctness of the suppression hearing judge's factual findings with convincing evidence as required by 28 U.S.C. § 2254(d). The suppression hearing judge observed that petitioner was highly intelligent and well knowledgeable about police procedures (4 Tr. 58). The record shows that petitioner received Miranda warnings on the morning of June 22, prior to being interrogated, and executed a written waiver. Petitioner also received a Miranda warning at about 9:50 A.M. on June 23. This warning was administered for the purpose of obtaining a blood sample from petitioner. Petitioner consented in writing to this procedure, indicating he wished to make no other statement at that time. Finally, the suppression hearing record reveals that on the night of June 23, petitioner requested to speak to Sgt. Engler.
After a careful review of the record, and in view of the suppression hearing judge's findings as to the petitioner's mental capacities and experience, the correct sets of warnings given petitioner,
and petitioner's having initiated the June 23 meeting with police, see Edwards v. Arizona, 451 U.S. 477, 485-86, 101 S. Ct. 1880, 1885-86, 68 L. Ed. 2d 378 (1981),
I find that the government has met its burden of showing that petitioner knowingly and intelligently waived his Miranda rights as to both the oral and written statements given on June 23, 1978.
Petitioner's claim that the trial court violated Harris v. New York, supra, by failing to give a limiting instruction as to the permissible use of the June 23 statement is without merit. Since we have found that the statement was not obtained in violation of petitioner's Miranda rights, no limiting instruction was constitutionally required.
Petitioner also contends that he was denied due process through the introduction of inflammatory photographs of the victim. As a general rule, a federal habeas corpus court will not review the state trial court's action in admitting evidence. See Lisenba v. California, 314 U.S. 219, 228, 62 S. Ct. 280, 286, 86 L. Ed. 166 (1941); Davis v. Campbell, 608 F.2d 317, 319 (8th Cir.1979) (inflammatory photographs); Mercado v. Massey, 536 F.2d 107, 108 (5th Cir.1976) (same). An evidentiary ruling that deprives a state court defendant of fundamental fairness, however, is cognizable in habeas corpus. Donnelly v. DeChristoforo, supra, 416 U.S. at 642-43, 94 S. Ct. at 1871; United States ex rel. Mertz v. New Jersey, 423 F.2d 537, 540 (3d Cir.1970) (police photographs). Thus, a habeas court will inquire into the admission of photographs only to determine whether the alleged error was of such magnitude as to deny fundamental fairness. Nettles v. Wainwright, 677 F.2d 410, 414 (5th Cir.1982).
Upon examination of the photographs in question, this court finds that they are not unduly inflammatory or gruesome and their introduction into evidence not so critical as to deny petitioner a fundamentally fair trial.
Finally, petitioner claims that the admission into evidence of two hearsay statements violated his sixth amendment confrontation rights. Petitioner challenges Melvin Hickson's testimony relating the substance of two telephone conversations he had with Shelly Weinstein on the morning of June 21, 1978. The first conversation occurred at approximately 8:15 A.M. Hickson testified that Shelly Weinstein said that her car had been broken into and would not start, that she was waiting for the police, and that she had "run into one of the guys in the building, the maintenance guys, and that he was going to come up to fix the air conditioner" (4 Tr. 99). The second call occurred sometime between 10:00 A.M. and 10:30 A.M. Hickson testified that Shelly Weinstein said she was not going to go to work and that "the guy is here to fix the air conditioner" (4 Tr. 100).
The right of confrontation does not preclude the use of hearsay evidence. Dutton v. Evans, 400 U.S. 74, 80-82, 91 S. Ct. 210, 215-216, 27 L. Ed. 2d 213 (1970). Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), sets forth the relationship between the confrontation clause and hearsay testimony:
"When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate 'indicia of reliability.' Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." [ Id. at 66, 100 S. Ct. at 2539.]
The first aspect of Roberts is here satisfied since Shelly Weinstein indisputably was "unavailable."
The state trial judge ruled that Hickson's testimony as to the second telephone conversation was admissible under N.J.Evid.R. 63(4)(a), the New Jersey equivalent of the "present sense impression" exception to the hearsay rule set forth in Fed.R.Evid. 803(1). Under this exception, a statement describing or explaining an event made while declarant was perceiving the event is admissible as a hearsay exception. Reliability is ensured by the substantial contemporaneity of the statement and the event described which negates the likelihood of calculated misstatement.
Shelly Weinstein's statement that a man was there to fix the air conditioner meets the requirements that the declarant personally perceive the event, that the statement explain or describe the event, and that there be contemporaneity of the statement and the event described. Hickson's testimony thus falls within the present sense impression exception to the hearsay rule. Under Roberts, reliability for confrontation clause purposes may thus be inferred. Moreover, there are also circumstantial guarantees of reliability. Hickson's air conditioning unit was open and tools were found on top of it, and petitioner himself testified that he went to Shelly Weinstein's apartment to fix her air conditioner. In addition, Shelly Weinstein's statement was made in a natural manner and under circumstances where there was no motive for falsity. Admitting this statement did not violate petitioner's confrontation clause rights.
The trial judge also ruled testimony relating the substance of the first telephone call, at 8:15 A.M., admissible under N.J.Evid.R. 63(4) (4 Tr. 96-97). We have some doubt as to whether the time lapse between the event and Shelly Weinstein's statement describing it is sufficiently short to comply with Rule 63(4)'s requirement that the statement be made "while the declarant was perceiving an event."
We find, however, that the statement might be admitted under the "state of mind" exception set forth in N.J.Evid.R. 63(12)(a), the counterpart to Fed.R.Evid. 803(3), and, in particular, under that species of the exception first announced in Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S. Ct. 909, 36 L. Ed. 706 (1892). Under this exception, hearsay statements reflecting a declarant's intentions or future plans are admissible to show that the intended act was subsequently performed. See id.; State v. Thornton, 38 N.J. 380, 389-90, 185 A.2d 9 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963). Under the Hillmon doctrine, statements are admissible not only to prove the future conduct of the declarant but also the future conduct of other persons when the declarant's intention requires the action of these other persons if it is to be fulfilled. See Hillmon, supra, 145 U.S. at 295-300, 12 S. Ct. at 912-914.
Shelly Weinstein's statement at 8:15 A.M. reflected her intention or future plan to await the arrival of a maintenance man to repair the air conditioner and, under the Hillmon state of mind exception, is admissible to prove both her subsequent conduct and that of the maintenance man. In the federal system, though, there is debate over whether Rule 803(3) makes declarations of intention admissible to prove only declarant's future conduct, or whether it embodies the Hillmon doctrine in full. Compare H.R.Rep. No. 93-650, 93d Cong., 2d Sess., reprinted in  U.S.Code Cong. & Admin.News 7051, 7075, 7087 (rule limited to declarant's future conduct) and United States v. Jenkins, 579 F.2d 840, 843 (4th Cir.), cert. denied, 439 U.S. 967, 99 S. Ct. 458, 58 L. Ed. 2d 427 (1978) with Advisory Committee Note to Rule 803(3) (Hillmon doctrine "left undisturbed") and United States v. Pheaster, 544 F.2d 353, 379-80 (9th Cir. 1976), cert. denied, 429 U.S. 1099, 97 S. Ct. 1118, 51 L. Ed. 2d 546 (1977); see also United States v. Cicale, 691 F.2d 95, 103-04 (2d Cir.1982). New Jersey's Rule 63(12)(a) has not been the subject of a similar debate. Cf. United States ex rel. Jacques v. Hilton, 423 F. Supp. 895, 899 (D.N.J.1976) (habeas corpus review of state homicide conviction; evidence that victim told witness that he was in fear of defendant and expected to be killed was within scope of N.J.Evid.R. 63(12) and admissible).
In any event, petitioner is not entitled to habeas corpus relief even if the first telephone conversation is not admissible under either N.J.Evid.R. 63(4)(a) or N.J.Evid.R. 63(12)(a). Since the content of the admissible second telephone conversation is very close to that of the first conversation, and in view of petitioner's own testimony that he went to Shelly Weinstein's apartment to repair the air conditioner, as well as other circumstantial evidence placing petitioner in the apartment, we find that any error in admitting the first telephone conversation was harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
For the foregoing reasons, the petition for habeas corpus is denied. There is no probable cause for appeal.