UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: July 2, 1968.
APPLICATION OF MICHAEL REYNOLDS FOR A WRIT OF HABEAS CORPUS, MICHAEL REYNOLDS, APPELLANT. APPLICATION OF MARTIN REYNOLDS FOR A WRIT OF HABEAS CORPUS, MARTIN REYNOLDS, APPELLANT
Kalodner, Ganey and Van Dusen, Circuit Judges. Ganey, Circuit Judge (dissenting).
Author: Van Dusen
VAN DUSEN, Circuit Judge.
This appeal is from the denial of appellants', Michael Reynolds (Michael) and Martin Reynolds (Martin), petitions for writs of habeas corpus (Civil Actions Nos. 244-65 and 255-65, respectively), sought pursuant to 28 U.S.C. § 2241(a), (c) (3) et seq. The District Court summarized the facts in its opinion of March 14, 1967, 287 F. Supp. 666:
"Petitioners were indicted by an Essex County Grand Jury on July 23, 1962 for the murder of Fred Garcia, the owner of a store located at 938 Bergen Street, Newark, New Jersey. Mr. Garcia died as a consequence of a bullet wound inflicted by Martin Reynolds  on April 1, 1962 while he and his brother, Michael Reynolds , were robbing the store. Petitioners were prosecuted by indictment pursuant to the provisions of N.J.S.A. 2A:113-2 whereby a person engaged in the commission of a felony during which the death of another occurs is guilty of murder in the first degree. It is further provided by N.J.S.A. 2A:113-4 that 'every person convicted of murder in the first degree, his aiders, abettors, counselors, or procurers shall suffer death unless the jury by its verdict, and as a part thereof, shall, after consideration of all of the evidence, recommend life imprisonment in which case this and no greater punishment shall be imposed.' (Emphasis supplied)
"A jury found each petitioner guilty of murder in the first degree without recommendation of life imprisonment. Thereupon each of petitioners was sentenced to death on November 10, 1962."*fn1
We agree that the District Court properly denied the petitions but point out our particular reasons for affirmance with respect to certain of the numerous contentions pressed both below and on this appeal.
As the District Court emphasized, the trial of appellants had the particular posture of being a trial solely on the issue of the possible recommendation of life imprisonment. Accordingly, the extent of the sentence, life imprisonment or the death penalty, was all the jury had to determine. This singular purpose of the trial is made abundantly clear in the statements of defense counsel quoted at length in the able opinion of the District Court.*fn2
As grounds for granting their writs of habeas corpus, the appellants argue vigorously that their death sentences are constitutionally infirm because their written and oral confessions given to the police were coerced and involuntary. Appellants contend they were neither advised of their rights nor allowed to have counsel prior to making oral confessions to the police, followed by signed written statements. This contention we find without merit because the state court record clearly shows that appellants' counsel deliberately, unequivocally, and reasonably waived any objection to such confessions and their admission into evidence. It was not feasible to have the confessions admitted solely with respect to the issue of appellants' admitted "guilt", yet with constitutional objections reserved with respect to the issue of the possible recommendation of life imprisonment. The waiver in this case was complete, with a specific statement of "no objection" from each of appellants' counsel with respect to the admissibility of each of the two written confessions (Exhibits S-20 and S-21). In addition, as the District Judge pointed out, counsel for the appellants also conceded in unequivocal terms that both confessions were voluntary.*fn3
By the above-mentioned reiterated explanations to the jury both that guilt was admitted and that the contents of Exhibits S-20 and S-21 were voluntarily given, counsel made an intelligent waiver of any constitutional objections to the confessions or their use as evidence that satisfies the standard of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938): "an intentional relinquishment or abandonment of a known right or privilege," as that standard has been explained and made applicable to habeas corpus determinations in Fay v. Noia, 372 U.S. 391, 438-439, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); cf. Henry v. State of Mississippi, 379 U.S. 443, 451-452, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965). Particularly are we convinced that the extensive waiver constituted deliberate trial tactics in light of the opening remarks and summations of both defense counsel quoted in part above. The waiver was part of their case from the outset, obviously noticed by appellants even if they had not been consulted beforehand,*fn4 and part of a reasonable strategy in view of the many witnesses in the store at the time of the robbery and shooting whose testimony would probably have made such confessions superfluous had guilt been contested.*fn5 A reading of the record as a whole convinces us that the waiver was part of a plan to have appellants make as favorable an impression as possible upon the jury in order to secure their mercy. It would obviously help their cause with the jury the fewer factual problems they presented that concerned the shooting of a 69-year-old man and that demanded a jury assessment of their credibility or lack of it. As such, and in light of the clarity of counsel's position, the waiver in this case more than equals the effective waiver outlined in Henry v. State of Mississippi, supra, at 451, 85 S. Ct. 564. Since, as to certain doctors' statements discussed below, defense counsel made later objections to other evidence on the grounds of involuntariness, there is no doubt in this case that the right waived to object to S-20 and S-21 was "knowingly" waived.
The appellants' second main contention of constitutional infirmity concerns the testimony of two doctors who testified for the prosecution. The most vigorous arguments concern the testimony of Dr. Kesselman, a psychiatrist who examined both appellants for the state. Although, at the time of the trial, counsel objected only on the grounds of lack of proper foundation and improper rebuttal, appellants here contend that the details of the crime, as recounted in Dr. Kesselman's "history" of the appellants taken when they were examined, should not have been admitted by the court because the doctor failed to advise or warn appellants of their constitutional rights before they gave their version of the crime to him. It is further argued that, because the doctor's testimony revealed a different series of events surrounding the shots, and where each appellant was at those times, and because the testimony suggested that Martin deliberately shot Garcia and knew he had wounded him, the doctor's "history" contradicted the testimony of the appellants given earlier on the stand. In the appellants' case, their testimony maintained that Martin tried to shoot the knife from Garcia's hand to protect his brother and that after Michael ran out of the store, the gun discharged a second time while Martin wrestled with Garcia, who tried to block his escape from the store. Since Dr. Kesselman's version of the crime contradicted the appellants' testimony, the appellants contend that the inadmissible testimony of their "history" prejudiced their chance to get a "life" recommendation from the jury.*fn6
Our examination of the record and a comparison of the written statements given to the police with the version of the crime given to Dr. Kesselman and repeated by him on the stand,*fn7 convinces us "beyond a reasonable doubt" that appellants were not prejudiced in any way by the doctor's testimony of the appellants' description of the events in the store on April 1, 1962.*fn8 Dr. Kesselman's version of the appellants' story -- the number of shots, the position of the appellants at each shot, the knowledge of Martin that he hit Garcia, etc. -- do not vary from the version of the crime given to the police and allowed into evidence without objection, as outlined above. Any contradictions, whether prejudicial or not, result solely from the variations in the details given by the appellants in their testimony at the trial and a contradiction between the statements (S-20 and S-21) of the two brothers. Dr. Kesselman's testimony added nothing to the confessions admitted earlier in the trial,*fn9 as to which appellants fully waived all objection.
The same lack of prejudice is even clearer with regard to Dr. Greifinger's testimony.*fn10
We concur with the opinions of the New Jersey Supreme Court [State v. Reynolds, 43 N.J. 597, 206 A.2d 750, 754 (1965)]*fn11 and of the District Court (pp. 8-10 of 3/14/67 Opinion in D.N.J., Civ. 244-65 and 255-65) that the charge on the subject of the jury's right to recommend life imprisonment did not violate any guarantee of the Constitution of the United States. Andres v. United States, 333 U.S. 740, 747-749, 68 S. Ct. 880, 92 L. Ed. 1055 (1948), relied on by appellants, was based on the interpretation of a Congressional statute (The Act of January 15, 1897, 29 Stat. 487, as later incorporated in 18 U.S.C. § 567 as worded in 1943), which contained different language than that contained in N.J.S.A. 2A:113-4.*fn12 Similarly, the language before the court in Frady v. United States, 121 U.S.App.D.C. 78, 348 F.2d 84 (1965), which is contained in 22 D.C.Code § 2404 (Supp. IV, 1965), is quite different from the above-cited New Jersey statute. Furthermore, the only majority opinion in that case was a two-sentence Per Curiam Opinion (p. 85 of 348 F.2d) and the quotations relied on in appellant Michael Reynolds' brief are from various separate opinions filed.
It is noted that Judge McGowan's opinion (348 F.2d at 91-95) would apparently approve the procedure of remanding a case, under circumstances such as this where guilt was admitted, for retrial on the issue of the possible recommendation of life imprisonment only, even if a new trial were required. Cf. State v. Laws, 50 N.J. 159, 233 A.2d 633, 648 (1967) and 51 N.J. 494, 242 A.2d 333. (opinion of May/6/68); United States ex rel. Rivers v. Myers, 384 F.2d 737, 743 (3rd Cir. 1968).
The appellants' several other contentions are fully discussed and correctly answered by the above-mentioned able opinion of the District Court judge dated March 14, 1967.
Accordingly, the order of the District Court, denying the applications for writs of habeas corpus, will be affirmed.
GANEY, Circuit Judge (dissenting).
In the course of the trial of the instant case to determine solely whether the appellants should suffer life imprisonment or the death penalty, it is important to remember that the State called as a witness Dr. Samuel R. Kesselman, a licensed, practicing physician of the State of New Jersey, whose specialty is neuropsychiatry, as a rebuttal witness to contradict the testimony of Dr. Smith and Dr. Latimer, two of the defense psychiatrists who had testified concerning the defendants' mental and emotional behavior. This is shown by the record for after objection was made by defense counsel to Dr. Kesselman's testimony on the ground that it was not proper rebuttal, there ensued the following colloquy:
"MR. LORDI: Of course it is rebuttal. They put two psychiatrists on the witness stand."
It is plain, therefore, that Dr. Kesselman was called merely to rebut, as indicated, the testimony of the two psychiatrists the defense had called.
Dr. Kesselman, in giving his training and educational background, qualified eminently as an extremely competent neuropsychiatrist, having a long list of qualifications which covered some two to three pages of the record. He interviewed both appellants, Martin and Michael Reynolds, alone, in private sessions, unaided by counsel, for one and one-quarter hours, and drew from both appellants the story of the shooting and stabbing which resulted in the death of the proprietor of the shop, Garcia, which testimony covered some three pages of the record. While Dr. Kesselman's testimony covered most of the statements which the defendants had given to the police and on the witness stand, it was nevertheless supplemented in various aspects therein, as, for example, his statement, "He admits to deliberate intent to hold up the store described by his brother.", and then reciting all the lurid details of the occurrence, including testimony that the proprietor was told not to move; that it was a stick-up; the grabbing of the knife by the proprietor and his stabbing Michael; and Martin's pulling the trigger and shooting him, as well as every detail that happened prior to the appellants' entry into the store and their escape thereafter. Dr. Kesselman was not called in the capacity of a detective, nor was he called as an investigator in the case. He, as indicated above, called to rebut the testimony of appellants' two psychiatrists, is a very highly regarded neuropsychiatrist and was competent to testify in rebuttal to what two psychiatrists called on the part of the defense had given in testimony in chief. As indicated in the majority opinion, he was competent to testify, as he did, in quite some detail, to contradict the references to the appellants' juvenile delinquency and anti-social behavior, as to which no objection could be taken, as this was his proper role.
Much is made in the majority opinion of the value of the rebuttal testimony of Dr. Kesselman in that it contradicted the written statements of Michael and Martin to the police and the testimony of both of them on the witness stand with relation to the shots fired during the occurrence of the killing. However, the record discloses that Michael, in his written statement to the police, said that Martin fired two shots at Garcia and Martin, according to Dr. Kesselman's testimony, also testified that he fired two shots. Michael, according to Dr. Kesselman, told him that he had only heard one shot fired, although he did say that he was at the cash register and saw Martin point his gun at the proprietor, Garcia, and immediately ran out of the store and while he was on the street he heard a shot fired. This was no doubt the second shot fired and the fact that he did not relate the firing of the first shot in his story to Dr. Kesselman had very little value by way of contradiction. It is to be remembered that Dr. Kesselman's inquiry was not the searching examination of a suspect in trying to build up a case for the State, as here there was no question of the guilt of both defendants as they had pleaded guilty to the killing. This is further emphasized by Dr. Griefinger's brief testimony of the shooting, relating that Martin told him he shot a man without mentioning the number of shots fired nor any details by way of entrance or exit of the defendants. The only question was whether the defendants should suffer the death penalty or life imprisonment.
Again, much has been made in the majority opinion of the failure of either of the appellants to relate the fact that Martin had withdrawal symptoms at the time of the shooting which Michael had testified to, with respect to Martin, on the witness stand. However, near the close of his testimony, Dr. Kesselman stated, "My conclusion would be that even though, the fact that he [an addict] is suffering from withdrawal symptoms would indicate that he is not under the influence of drugs." Accordingly, it would seem that while much is made of appellants' omission to recite their withdrawal symptoms in relating their story to Dr. Kesselman, it was of little or no value in view of Dr. Kesselman's statement with respect thereto, as being under the influence of drugs.
These contradictions, if any, in the testimony of Dr. Kesselman, by way of rebuttal testimony, were, as I have indicated, minimal at most, for here was an eminent psychiatrist going beyond his field and giving testimony as to the facts of the killing which bore no relation whatever to the purpose for which he was called. Its only purpose could be through repetition and addition, to jar and inflame the minds of the jurors against appellants as its reiteration was cumulatively prejudicial in augmenting the design of the prosecution in demanding the death penalty and, coming as it did from one of high standing in his profession, effected a most serious impact on the minds of the jurors.
It was encumbent, in my judgment, on the trial judge to confine Dr. Kesselman's testimony to the purpose for which he was called and especially so here in so sensitive an area where individuals' lives hung in the balance.
Accordingly, I would reverse the judgment of the lower court and allow the writ to issue unless within thirty days a new trial is granted as to the appellants' degree of guilt.