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December 30, 1986

IRWIN I. KIMMELMAN, Attorney General of New Jersey; and JOHN J. RAFFERTY, Superintendent, Rahway State Prison, Respondents

The opinion of the court was delivered by: STERN

This case is here on remand from the United States Supreme Court, Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986), affirming, Morrison v. Kimmelman, 752 F.2d 918 (3d Cir. 1985), vacating and remanding, 579 F. Supp. 796 (D.N.J. 1985). We had granted petitioner's habeas corpus petition under 28 U.S.C. Section 2254 (1976), holding that petitioner was denied his sixth amendment right to effective assistance of counsel, in light of counsel's failure to conduct any discovery, and his failure to make a timely request for exclusion of unconstitutionally seized evidence. 579 F. Supp. at 804. The Supreme Court thereafter announced a new standard for determining whether ineffective assistance of counsel is prejudicial enough to warrant a new trial. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984). The Third Circuit remanded Morrison v. Kimmelman for a determination of prejudice under this standard. 752 F.2d at 923.

 The State appealed, arguing that ineffective assistance claims are not cognizable where the error of counsel is only a failure to assert a Fourth Amendment claim. On appeal, the United States Supreme Court affirmed the judgment of the Third Circuit. The Court held that the restrictions on federal habeas review of Fourth Amendment claims announced in Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976), does not extend to Sixth Amendment ineffective assistance of counsel claims which are founded on incompetent representation with respect to a Fourth Amendment issue. The Supreme Court remanded the case to this Court for redetermination of the prejudice inquiry under the Strickland standard.

 Upon remand, the State concedes that the underlying search and seizure in this case was unconstitutional. However, the State raises two claims which the Court must presently address. First, the State argues that federal habeas review may not extend to claims of ineffective assistance where counsel's primary error is failure to make a timely request for exclusion of illegally seized evidence. Second, in order to challenge the prejudicial effect of trial counsel's failure to move to suppress this seizure, the State wishes to present deposition or in-court testimony from the trial judge who sat as petitioner's trier of fact, in an effort to show that the receipt of this evidence did not prejudice the results in this non-jury trial.


 The facts of this care are set forth fully in our prior opinion, 579 F. Supp. at 797-800. It is necessary, however, to review some of them here. Petitioner Morrison was convicted of forcible rape, carnal abuse, impairing the morals of a child, and private lewdness, in connection with the alleged rape of a fifteen year old girl who had worked at a fish store run by Morrison and a partner. Morrison waived his right to a jury trial. At Morrison's March 1979 bench trial, the prosecution introduced into evidence a sheet taken from a bed in a room that Morrison had used in Morrison's apartment building. The sheet contained stains that laboratory technicians testified were sperm traces from a man with type "O" blood. Morrison had type "O" blood, and type "O" sperm was found in the alleged victim's vagina in the course of a vaginal wash performed at a hospital after the alleged rape. The sheet also contained head hairs matching the alleged victim's hair and ones matching Morrison's hair.

 The police officer who seized the sheet had neither a warrant nor Morrison's consent. Because Morrison's attorney failed to conduct any discovery, he was unaware that the state was in possession of the sheet until it was introduced into evidence. He failed to make a timely motion to suppress as required by New Jersey Court Rule 3:5-7(a). The trial judge admitted the evidence because it was too late to suppress. He also allowed testimony by the police officer who seized the sheet and the lab technicians who performed tests on it. He noted that there would have been a "very valid basis for suppression" had it been timely made. Criticizing defense counsel for failing to conduct discovery, the trial judge remarked that the State's possession of the sheet was indicated on both a police report and a report of a chemical analysis ordered by the State.

 At trial, the prosecution's version of the facts was based on testimony by the victim and her mother. The victim testified that she worked at Morrison's fish store. On the day of the alleged rape, she was asked by Morrison to accompany him on some deliveries. After going to a few bars, the victim testified that Morrison drove her to his apartment building and raped her. A friend and tenant of Morrison's, named Wesley Harris, had been with them in the apartment building but left just before the rape. Morrison then drove the girl home. She told her mother what had happened, and her mother called the police.

 Morrison put four witnesses on the stand to develop a different version of the facts. His partner testified that he had fired the girl the day before the alleged rape. Morrison stated that he owed her money for wages due and that he was unable to pay her when she showed up on the day of the alleged rape. She therefore proposed to accompany him while he collected money due to him. They set off together, not to make deliveries, but, instead, to get money from clients of the fish store and from tenants in Morrison's apartment building who owed him rent. At the apartment building, the girl waited in the room where the alleged rape occurred while Morrison tried in vain to collect money from the tenants. Wesley Harris testified that he was with Morrison or the girl for virtually the entire time they were in the building. By Morrison's account, he never had sex with the girl, but he had had sex with women on the bed where the girl waited. A friend of Morrison's also used the bed for the same purpose. Morrison and the girl returned to the fish store, and the girl proceeded home unpaid. The girl's mother subsequently told Morrison she would "fix him" for not paying the girl.

 In Morrison' version, although the girl's mother filed charges, she told Morrison several times thereafter that she would drop them. The mother admitted meeting with Morrison and her daughter on the Sunday before the trial started. According to Morrison, the mother renewed her promise to drop the charges on that occasion, and the daughter admitted she had not been raped. The girl, who had already had a child by her boyfriend, indicated that she was afraid her mother would find out about her on-going sexual relationship with this man. Thus, Morrison depicted the rape accusation either as an effort to force Morrison to pay or as revenge for the firing and failure to pay.

 In summation, the prosecution stressed that the sperm found in the girl's vagina could be reconciled with Morrison's story only if the girl had sex with her boyfriend on the day in question. But, as the prosecution stressed, defense counsel had not tested the boyfriend's blood type or called him to testify. The State also contended that common sense made Morrison's story improbable. If the girl and her mother were framing Morrison, they would not have concocted a story that placed Wesley Harris in the same room with Morrison and the girl.


 The Third Circuit, on review, addressed three issues. First, the Court affirmed our holding that the rule of Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976), barring collateral review of a fourth amendment claim, did not preclude our consideration of petitioner's sixth amendment claim. 752 F.2d at 920. The Supreme Court agreed, writing:

Were we to extend Stone and hold that criminal defendants may not raise ineffective assistance claims that are based primarily on incompetent handling of Fourth Amendment issues on federal habeas, we would deny most defendants whose trial attorneys performed incompetently in this regard the opportunity to vindicate their right to effective trial counsel.

 106 S. Ct. at 2585.

 The Third Circuit also agreed with this Court's application of the first component of the Strickland test, the competency standard. Id. at 2591. In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, the Supreme Court set forth "two components" of the test for ineffectiveness. The first requirement is a showing that counsel's performance was deficient. Id. Instead of setting forth specific guidelines, the Supreme Court in Strickland embraced the standard of "reasonably effective performance," Id. at 2064-65, previously adopted by this Circuit, see Moore v. United States, 432 F.2d 730, 736-37 (3rd Cir. 1970), and by all other circuits, see 104 S. Ct. at 2064. In assessing the performance of petitioner's counsel, this Court had applied the same standard subsequently adopted in Strickland. 597 F. Supp. at 802.

 On appeal, the Third Circuit agreed with this Court's determination that the conduct of Morrison's counsel fell below an objective standard of reasonableness. 752 F.2d at 922. The Supreme Court affirmed, noting that "counsel's performance fell below the level of reasonable professional assistance in the respects alleged," 106 S. Ct. at 2089.

 The Supreme Court thus remanded this case only for application of the second component of the Strickland test, the showing of prejudice.

 I. The State's Motions

 Before engaging in an analysis of the prejudice component of the Strickland test, this Court must first address two issues raised by the State in response to the Supreme Court's remand. First, the State argues that the introduction of illegally obtained evidence can never satisfy the prejudice prong of the Strickland test. Second, the State argues that this Court should elicit evidence from the state trial judge to clarify the verdict, bearing on the issue of whether the petitioner has proven that, but for the admission of the bedsheet evidence, the result of the proceedings would have been different. For the reasons discussed below, this Court rejects both assertions by the State.

 (A) Illegally Seized Evidence and the Prejudice Component of Strickland v. Washington.

 The State argues that the admission of illegally seized but reliable evidence can never constitute prejudice under Strickland. In Strickland, the Court recognized that ineffective assistance of counsel claims were intended to protect defendants against fundamental unfairness. 104 S. Ct. at 2063. Thus, or so the State contends, only errors which call into question ...

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