UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: March 26, 1970.
UNITED STATES OF AMERICA EX REL. JOHN LOUIS MERTZ, APPELLANT,
STATE OF NEW JERSEY
McLaughlin, Freedman and Adams, Circuit Judges.
Opinion OF THE COURT
FREEDMAN, Circuit Judge.
In this habeas corpus case petitioner attacks his state court conviction of armed robbery. His conviction was affirmed by the Appellate Division of the New Jersey Superior Court, and the Supreme Court of New Jersey denied a certification for appeal.
The district court denied the petition for habeas corpus on a review of the state record without holding an evidentiary hearing. Petitioner's brief elaborately argues that he was denied due process on a number of grounds which are without merit and require no discussion.*fn1 We address ourselves to the substantial claims.
I. The Police Photographs
The state's evidence at the trial consisted primarily of the testimony of Nicoll Bunnell, the night auditor of the motel which was robbed at 5:00 a.m. on November 24, 1965. Later that morning, Bunnell identified petitioner in one police photograph, and later in the day identified him in another.
There was testimony by the police that Bunnell had seen the photographs in the Criminal Investigation Bureau of the Jersey City Police Department. The photographs made it evident that petitioner had at least been arrested and photographed by the police on two occasions prior to the present robbery. The front views of both photographs plainly show a large label on petitioner's person containing a number and date, and one contains the additional words "Police Dept. Union City, N.J." One of the photographs is dated September 24, 1958, and the other December 24, 1964, seven years in one case and almost a year in the other prior to the present robbery.
The trial judge admitted the photographs in evidence over petitioner's objection after directing that the notations they bore on the reverse side should be masked. In his charge he instructed the jury to disregard the fact that they were police photographs and to consider them solely in relation to Bunnell's identification testimony, without regard to any notations on the front and the fact that the reverse sides were masked.*fn2
The state was not led to introduce the photographs in order to rebut a challenge by the defense on cross-examination to the identification, a situation which might justify their explanatory use.*fn3 Here, the photographs were introduced by the prosecution in its direct examination of Bunnell in the course of his testimony identifying petitioner. Were this a case on direct appeal from a federal conviction we would be required to balance the probative value of the photographs on direct examination against the possibility of prejudice to the petitioner in order to determine whether their admission constituted reversible error.*fn4
It is not our function, however, to decide whether there was error in the admission of the photographic evidence. Nor are we called upon to decide the related problem of the effectiveness of cautionary instructions on this subject.*fn5 This is not a review on direct appeal but an application for habeas corpus, and the question before us is whether the admission of the photographs with a cautionary instruction to the jury, as approved by the New Jersey courts,*fn6 constituted a denial of due process.
The Supreme Court has made it clear in Spencer v. Texas, 385 U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967), that the states have a broad area of choice regarding the rules of evidence they will apply in their criminal proceedings. There the Court upheld the decision which some states have made in dealing with recidivists that the possibility of prejudice occasioned by the admission of prior convictions before there is a determination of guilt is outweighed by their utility in establishing the elements which are necessary for the imposition of a penalty for recidivism.*fn7
In view of the broad discretion of the states which Spencer acknowledged,*fn8 we cannot say that the admission of the police photographs, masked as they were, and for the limited purpose of consideration with the victim's identification testimony, coupled with cautionary instructions to the jury, amounted to error which rises to constitutional dimensions.
II. Petitioner's Unemployment
Petitioner himself did not take the stand, but his wife, Lois Jean Mertz, testified on his behalf to an alibi. Her evidence was that they had been visiting night clubs on the evening of November 23 and had come home early in the morning when the last bar closed at 3:00 o'clock on November 24. She testified that petitioner was at home in bed at the time of the robbery. Petitioner's sister-in-law, Donna Garris, confirmed the alibi, testifying that she had arrived at the house during the evening to act as a baby sitter and stayed overnight, and that petitioner and his wife returned home and went to bed at 3:30 a.m., where they were when she left at 7:00 a.m.
At the conclusion of the state's cross-examination of petitioner's wife, the trial judge, sua sponte, questioned her on what her husband did for a living, whether he was out of work on the day of the robbery, how long he had been out of work, and where he obtained funds, presumably with which to visit night clubs. This questioning elicited from the witness the information that her husband had been out of work from March to November, 1965, except for some part-time work at a barber shop, and that he had begun drawing unemployment compensation in March.*fn9 All this testimony was secured over the objection of petitioner's counsel.
Later, in the course of his charge, after summarizing to the jury the wife's testimony relating to the alibi, the trial judge said, without any elaboration: "She admitted that her husband hasn't worked since March of 1965, and was still unemployed on November 24, 1965 [the date of the robbery]." No explanation was given to the jury why the trial judge found it desirable to call their attention to petitioner's unemployment from March until the date of the robbery. When objection was made to this part of the charge on the ground that neither the state nor the petitioner had brought it out in their examination of the witness, the trial judge responded that he had merely "cleared up" the testimony in questioning the witness.
It is fundamental to our conception of a fair trial that equality of treatment must be afforded to all without regard to differences in social status or economic condition. In a society which cherishes the ideal of equal justice for all and seeks to accord the equal protection of the laws to all those who are accused of crime, it would be difficult to accept any other view.
Nevertheless, the special nature of the crime charged may justify the use of evidence of financial embarrassment in order to show the accused's knowledge and motive, as where one is charged with embezzlement or similar financial misconduct.*fn10 And, of course, evidence of lack of funds prior to the time of the crime charged is admissible if it is joined with proof of the sudden possession of wealth immediately afterward.*fn11 Even in the ordinary case, however, where there is no contrast between poverty and sudden possession of wealth, the courts have not spoken decisively in weighing the probative value of motive arising from poverty against the prejudice to the defendant.*fn12
Wigmore thus states what he deems to be the appropriate rule:
"The lack of money by A might be relevant enough to show the probability of A's desiring to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence of the graver crimes, particularly of violence. * * *" 2 Wigmore, Evidence § 392, p. 341 (3d ed. 1940).
For our purpose, it is enough to say that New Jersey has followed the rule laid down by Wigmore in the recent case of State v. Mathis, 47 N.J. 455, 469-472, 221 A.2d 529, 536-538 (1966). In that case a conviction of murder was reversed because the prosecutor had questioned the defendant, charged with murder during an attempted robbery, as to how much money he had and when he had last worked, and had also called two witnesses to prove that defendant did not work where he claimed he did. The state alleged that its purpose in doing this was to attack defendant's credibility. The Supreme Court of New Jersey held that the evidence which the prosecutor had pursued was at the most collateral to the issues involved and was not supportable either as germane to the issues or as an attack on defendant's credibility. Chief Justice Weintraub, speaking for a unanimous court, said:
"But what emerged was something more than a mere trial of something extraneous. The point the State in truth made by its rebuttal witnesses was that defendant lied when he said he worked for his father, and hence he did not earn money that way, and being otherwise essentially unemployed, he must have been destitute and therefore he likely would rob. * * *
"Undoubtedly a lack of money is logically connected with a crime involving financial gain. The trouble is that it would prove too much against too many. [Quoting 2 Wigmore, Evidence § 392.] * * * The State * * * projected before the jury the forbidden theme that defendant had no apparent means of income and hence was likely to commit a crime for dollar gain. This was improper and injurious." 47 N.J. at 471-472, 221 A.2d at 537-538.
Mathis has been cited with approval in New Jersey.*fn13
Here, the evidence of petitioner's unemployment and lack of funds was produced in circumstances that were especially prejudicial. It came to the jury through questioning by the court at the conclusion of the prosecutor's cross-examination of petitioner's wife. The court's intervention must have carried with it the implication that it was an important feature of the case. This was magnified when the judge later called attention to it in his charge. Moreover, it dealt with the status of an accused who was already shown to have been the subject of police photographs and thus to have had earlier encounters with the police. The addition of unemployment to evidence of prior criminal conduct necessarily must have been a magnification of the prejudice which would result from unemployment alone.
Were we now to determine the constitutional issue presented by this problem, it would be necessary for us to decide, in addition to the due process question, whether the State of New Jersey arbitrarily refused to apply its Mathis rule and thus denied to petitioner his right under the Fourteenth Amendment to the equal protection of the laws. It is at once noticeable that the New Jersey appellate courts made no mention of the Mathis problem, although Mathis had been decided a short time before petitioner's trial began.*fn14 There is some indication in the briefs that the question was presented to the appellate courts of New Jersey, but we do not know whether this was so, nor do we know whether it was pressed by counsel who appeared for petitioner in the argument in the Superior Court.
In these circumstances, we believe the conclusion is appropriate that there was a failure or insufficiency of presentation of the claim to the New Jersey appellate courts, rather than a disregard by them of their own doctrine in a case to which it was applicable. It is therefore appropriate for us to withhold decision until petitioner renews his contention directly in the state courts, if he desires to pursue it. There the issue may be fully considered, both on federal constitutional grounds or on any state grounds, together with any other relevant elements present in the surrounding circumstances of the case.
III. Double Jeopardy
Petitioner claims that his guarantee under the Fifth Amendment against being "twice put in jeopardy of life or limb" was violated.*fn15 He bases this contention on his consecutive sentences of 5 to 7 years for robbery, under N.J.S. 2A:141-1, N.J.S.A.,*fn16 and 2 to 3 years for being armed, under N.J.S. 2A:151-5, N.J.S.A.*fn17
At the time of petitioner's conviction the double jeopardy provision of the Fifth Amendment did not apply to the states and the due process clause of the Fourteenth Amendment operated only where there was a denial of fundamental fairness. Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937). After the affirmance of petitioner's conviction by the New Jersey appellate courts and the denial by the district court of the present petition for habeas corpus, Palko was expressly overruled in Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), which held the double jeopardy clause of the Fifth Amendment applicable to the states by incorporation into the Fourteenth Amendment.
The preliminary question, therefore, is whether Benton is to be given retrospective application to petitioner's conviction. Two circuit courts of appeal have held Benton to be retrospective,*fn18 and the question is now awaiting decision by the Supreme Court.*fn19
If we assume that Benton is to be applied retrospectively, petitioner's claim must fail because he was not placed in double jeopardy. This is not a case of two separate crimes, one of which merges into the other, and which therefore cannot be twice punished because the result would be a double punishment for a single offense.*fn20 The courts of New Jersey have construed the state's legislative purpose in these statutes to be the creation of a single crime under circumstances which permit additional punishment.*fn21 Such being the legislative purpose as determined by the courts of New Jersey, cases like Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957), construing a federal statute as intending increasing grades of a common offense to swallow up the subordinate ones, are inapplicable.*fn22
The purpose which the New Jersey courts have found reflected in the statute expresses a legitimate state interest to provide an additional sanction against the greater evil inherent in the use of a dangerous weapon during the commission of certain crimes. There is, therefore, no imposition of double jeopardy,*fn23 just as there is no double jeopardy because of heavier punishment for being a multiple offender in addition to the ordinary punishment for the crime.*fn24
Accordingly, without deciding whether the double jeopardy guarantee is retrospectively applicable, we hold that if it is, there was no violation of it in this case.
The order of the district court will be affirmed, without prejudice to further proceedings under Part II of this opinion.