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BROWN v. TARD

December 29, 1982

Michael BROWN, Petitioner,
v.
Elijah TARD, Jr., et al., Respondents



The opinion of the court was delivered by: LACEY

 Petitioner in this habeas corpus action, 28 U.S.C. § 2254, is confined at Trenton State Prison. On January 19, 1979, a jury in New Jersey Superior Court convicted petitioner of first degree murder, N.J.S. 2A:113-1; murder while armed, N.J.S. 2A:151-5; and attempted rape as a lesser included offense, N.J.S. 2A:85-5, 2A:138-1. The court sentenced petitioner to a mandatory term of life imprisonment for first degree murder, to a concurrent term of 5-7 years for murder while armed, and to a consecutive term of 2-3 years for attempted rape. The Appellate Division of the New Jersey Superior Court affirmed the conviction on December 29, 1980. The New Jersey Supreme Court denied petitioner's petition for certification on June 12, 1981.

 To support his contention that he is in custody in violation of federal law, petitioner claims:

 
(1) That an extra-judicial inculpatory statement was made solely as a result of coercion by the police;
 
(2) That this statement was extracted from him in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that the trial court failed to give a limiting instruction when this statement was introduced to impeach petitioner's credibility;
 
(3) That admission of inflammatory and prejudicial photographs of the decedent's body was improper; and
 
(4) That hearsay statements were improperly admitted in violation of petitioner's sixth amendment rights to confrontation.

 BACKGROUND

 On June 22, 1978 at about 1:50 A.M., Melvin Hickson returned to his apartment, number 409, located at 250 Prospect Street, East Orange, New Jersey, and discovered the body of his girl friend, Shelly Weinstein. She had been beaten with a dumbbell and received multiple stab wounds. The ensuing investigation led to the arrest and conviction of petitioner. The details of the case relevant to this petition, as elicited at trial, follow.

 At approximately 8:15 A.M. on June 21, 1978, Shelly Weinstein called Hickson at work. She informed him that her car had been broken into and would not start, and that a building maintenance worker would be up to repair the air conditioner. Decedent called Hickson again between 10:00 A.M. and 10:30 A.M. the same morning and told him that she was not going to work and that the man was there to fix the air conditioner.

 When Hickson returned home at 1:50 A.M. on June 22, he observed that the bed had been moved from its usual position near the air conditioner. Screwdrivers were lying on top of the air conditioning unit, which had been opened. Hickson summoned a neighbor who called the police. The police, among other things, took specimens of a bloody palm print on the air conditioner that turned out to be petitioner's.

 Petitioner was employed as a maintenance worker in Hickson's apartment building. Other maintenance employees in the building were Carlos Rivas, the superintendent, and James Tinsley. They indicated that they had seen petitioner arrive for work at about 8:00 A.M. on June 21. At about 10:00 A.M. petitioner had indicated he was going to work in apartment 408, which was vacant and adjacent to apartment 409. Petitioner did not appear for his coffee break. Tinsley and Rivas next saw him at about 11:15 A.M., with a fresh cut on his finger.

 The police arrested petitioner at approximately 6:00 A.M. on June 22, 1978 at the nearby home of his sister, Marshlean Brown, with whom petitioner lived. Petitioner was taken to the detective bureau at East Orange Police Headquarters.

 Detective Mark Dunbar advised petitioner of his Miranda rights. At approximately 6:30 A.M., petitioner executed a signed waiver. Petitioner was then interrogated for about an hour by Detective Dunbar and Lt. James McDowall; two other detectives also were present in the interrogation room. Petitioner was handcuffed to an eye-hook during the interrogation, and was in his underwear. The police had taken his clothing as evidence. His sister eventually brought him fresh clothing.

 During this initial interrogation, petitioner denied being in Shelly Weinstein's apartment or having any knowledge of the crime. Sgt. Charles Engler interrogated petitioner for about an hour beginning at approximately 9:00 A.M. on June 22. At this time, petitioner stated that he had been in Shelly Weinstein's apartment to repair her air conditioner but had left her alive and well.

 The police surgeon, Dr. Eugene Sims, examined petitioner's finger at about 5:00 P.M. on June 22. During this examination petitioner did not complain of police misconduct. No further questioning occurred that day.

 At approximately 6:20 A.M. on June 23, 1978, the police received petitioner's permission to recover the clothing he had worn on June 21, 1978, which was at his girl friend's house. This clothing reacted ...


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