Biggs, Van Dusen and Rosenn, Circuit Judges.
This is an appeal from the denial by the United States District Court of Laws' petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Laws was indicted, along with others, for conspiring to commit armed robbery in violation of N.J.S.A. 2A:98-1 and 2A:98-2 and to commit murder in violation of N.J.S.A. 2A:113-1 and 2A:113-2. He was convicted of murder in the first degree and sentenced to death pursuant to N.J.S.A. 2A:113-4. He was also convicted on the conspiracy charge but sentence was suspended. On appeal, the New Jersey Supreme Court affirmed the convictions but found error in the imposition of the death sentence. State v. Laws, 50 N.J. 159, 233 A.2d 633 (1967). On reargument the New Jersey Supreme Court modified the sentence to life imprisonment. State v. Laws, 51 N.J. 494, 242 A.2d 333 (1968). The United States Supreme Court denied certiorari, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968).
The facts are set forth accurately in the first opinion of the New Jersey Supreme Court as follows:
"During the early morning hours of April 26, 1965 there was an armed robbery at the Public Service Coordinated Transport's terminal garage in Oradell. Christopher Jaeger, a Public Service bus driver, was killed by pellets from a shotgun fired by one of the robbers. The State's evidence as to the robbery was quite detailed but need only be summarized here. At about 3 A.M. three men entered the Oradell terminal. They wore ski masks which covered their heads and had openings for their eyes and mouths. They also wore flesh colored surgeons' gloves. Two of the men were short and the third was tall. The short men carried revolvers and the tall man carried a shotgun. The tall man did most of the limited amount of talking. He spoke with a southern drawl and, while there had been earlier variations in their descriptions, the witnesses at the trial generally agreed that he was brown or dark complexioned. The short men were invariably described as Negroes.
"The robbers herded several of the Public Service employees into the cashier's office. There they handcuffed Ellis, a maintenance man, Elliott and Griener, bus drivers, and Jacobus, a bus driver who had been temporarily assigned by Public Service to duties as cashier and depot master. The employees were forced by the robbers to lie side by side on the floor of the cashier's office and their mouths and eyes were covered with white adhesive tape. The robbers then proceeded to empty the safe in the cashier's office. The safe had been open and had contained between 20 and 25 bags of money. After the robbers left the cashier's office, the employees heard a loud bang and then heard an automobile starting up and driving off. It sounded to them like a 'souped-up car or a hot rod.'
"The handcuffed employees managed to push a button which sounded an alarm in other portions of the terminal garage. In response, Quinones, a Public Service mechanic, ran in. He announced that Jaeger had been shot and asked that the police and an ambulance be called. In due time the police arrived and found Jaeger's body lying in the garage. A doctor connected with the Bergen County Medical Examiner's office also arrived and ordered the body removed. He performed an autopsy which disclosed that shotgun pellets and wadding had entered the brain. Although the exact amount taken by the robbers was not known at the time of the event, later investigation established that they had stolen $20,512.60. Of that amount approximately $10,000 was in single dollar bills, $2,000 in bills of higher denominations, and the rest in coins except for about $1,000 in checks.
"During the early evening hours of April 26th, one Dennis Kingsley was at the Spring Valley, New York, station house talking to Chief of Police Kraniac. Dennis was asked about a burglary at Gattuso's Service Station in Spring Valley and Dennis gave some indication that it had been perpetrated by his older brother Joseph Kingsley and one Peter Kostas. Dennis first inquired whether there had been a big robbery in Bergen County, New Jersey, and later told Chief Kraniac that he knew about its planning. The Bergen County Prosecutor's office was called and shortly thereafter Dennis accompanied two representatives of the prosecutor's office to the Oradell police station. He made statements which were followed in New York by the issuance of search warrants and the search of several apartments including those of Laws and Washington. Thereafter the Bergen County Grand Jury returned separate murder indictments against Laws, Washington, Austin Baker, Joseph Kingsley, John Doe, and Richard Roe. A conspiracy indictment was returned against all of the aforementioned except Joseph Kingsley. Later the indictments setting forth the name of John Doe were amended to substitute the name of Julian Smalls in its stead.
"At the trial, Dennis testified to the following effect: His brother had worked at the Oradell terminal and had told him that it would be 'an easy place to knock off.' About mid-April 1965 he and his brother were at the apartment of the defendant Laws who was known generally as 'Hap.' The defendant Washington was also there along with some other men. Dennis saw his brother and Hap leave the living room to talk privately. On Sunday, April 18th, Dennis went to Laws' apartment looking for his brother. Laws told him that his brother had been arrested for 'a safe job in Spring Valley.' While Dennis was in the Laws' apartment, Washington and two other men came in. One of these men was Smalls. Smalls complained about his gun and Dennis offered to get a gun from his brother's hotel room. Laws then gave Washington the keys to his Plymouth automobile. Dennis, along with Washington and Smalls, went to the hotel but could not find the gun. They returned to the Laws' apartment and then Washington left for a few minutes and came back with an old single-barreled shotgun. Washington had five or six red and green shotgun shells.
"Laws showed Washington how to load the shotgun, then went into the bedroom and brought out a green duffel bag. He opened the bag and took out three ski masks. Dennis described one as predominantly red with blue stitching. Dennis also saw Laws take out three pairs of flesh-colored surgeons' gloves. At that point Laws left the apartment saying that he was going to get Austin Baker's car. Laws returned to the apartment shortly and, about two in the morning of April 19th, Washington, Smalls and an unnamed person described by Dennis as a truck driver, left with Laws wishing them luck. At about 3:30 A.M., the telephone in Laws' apartment rang and Dennis heard Laws say that he was glad it happened on the way there and not on the way back. At about 4:30 A.M. the three men returned telling Laws that their car had gone dead.
"There was independent testimony corroborating the breakdown of the car and the telephone call to Laws' apartment. Mr. Felice, an employee of Comfort Cab, Inc., testified that about 3 A.M. on the 19th, three Negroes (Washington, Smalls and the truck driver were Negroes) came to his office on Kinderkamack Road in River Edge to get help because their car had broken down. An attempt at jumpstarting the car was made by an employee of the Cab Company but was unsuccessful and the men returned with him to the office and made a telephone call. The records of the New Jersey Bell Telephone Company established that at 3:49 A.M. a call was made from Comfort Cab to AU 6-7324 which was the number of the telephone in Laws' apartment. When Laws testified in his own defense he acknowledged that Dennis was at his home on April 18th but denied that he stayed at the Laws' apartment through the night. Laws testified that Dennis left by about midnight and that the telephone call received by him in the early morning hour was a call to him from Dennis.
"Dennis testified that at 7:30 A.M. on Monday, April 19th, he, along with Washington, Laws and Baker, drove in Laws' Plymouth to a side street of Kinderkamack Road, River Edge. There they pulled up in front of Baker's Oldsmobile. Washington then took a green duffel bag from the trunk of the Oldsmobile and placed it in the trunk of the Plymouth. Dennis succeeded in starting the Oldsmobile and they all then drove back to New York. Mr. Rush, a resident of River Edge, testified that he saw a car which he later identified from a photograph as the Plymouth, pull up to the Oldsmobile which had been parked beside his driveway. He said that he saw four men, one of whom was white and the others colored, standing between the cars. Austin Baker, who testified that he had loaned his car to Laws without knowledge of its intended use, stated that he had gone with Dennis, Laws and another Negro to New Jersey to bring back his Oldsmobile. Baker and Laws, as well as Washington, are Negroes and Dennis is white.
"Dennis testified that about noon on April 19th he went with Washington and Laws to a pawnshop at 145th Street and Eighth Avenue in New York City. Laws pawned a ring for $30 and Washington pawned a watch for $3. Laws acknowledged that he was in the pawnshop but denied that he had gone there with Dennis and Washington. He testified that as he was leaving the pawnshop he saw Washington there. The proprietor of the pawnshop testified that the pawn tickets issued to Laws and Washington were numbered 18781 and 18782, indicating consecutive transactions. The pawnshop was open from 9 A.M. to 6 P.M. and on the day in question there were 46 transactions prior to and 200 subsequent to those of Laws and Washington.
"During a search of Laws' apartment on April 27th, various items were seized by the police officials. They included a green duffel bag,.38 caliber cartridges, a lady's handbag, a brown valise, and $2,784 in United States currency. Most of the currency was found in the valise and handbag and some was found in a dresser drawer and along a window sill. Almost all of the currency was in single dollar bills. Some of these bills contained markings which were unequivocally identified by four Public Service cashiers, namely Jacobus, Hill, Mattson and Hanson, as their own individual markings. In addition, the State presented testimony by a handwriting expert that the markings were made by the same hands as those on samples identified as having been made by the cashiers.
"During a search of Washington's apartment on May 1st, the officers found 533 single dollar bills under a mattress, 48 single dollar bills in a dresser drawer, and a piece of paper with the telephone number of Laws and the name 'Hap' after it. The officers also found a letter to Washington bearing the return name and address of Margie Stevens, 209 West 147th Street, New York City. The officers later went to that address, saw Washington lying there in bed, searched the apartment, and seized 259 single dollar bills. Margie Stevens stated that the bills were not hers. The Public Service cashiers unequivocally identified some of them, as well as some of the bills seized in Washington's own apartment, as bearing their own individual markings.
"In describing how their markings occurred, the cashiers testified that it was their practice to receive bills and coins from the bus drivers as they arrived at the terminal garage. The coins were counted by machine but the bills were counted by hand. The bills would be piled in lots of 50 and rubber bands would be placed around them. When the amount received from the driver was less than $50, the top bill would be marked with the temporary total and, when another driver came in, the pile would be supplemented by a sufficient number of bills to total $50. The markings were placed by each cashier in his individual fashion and none of the cashiers evidenced any hesitancy in identifying his own markings.
"No purpose would be served by lengthy discussion of the additional testimony introduced by the State although some of it may be mentioned in passing. Two Public Service employees identified Laws' Plymouth as the car they saw cruising around the Oradell terminal between 10 P.M. and midnight on April 22nd, several days before the robbery. The Public Service cashiers identified several small red metal caps, which were found in Laws' Plymouth after the robbery, as coming from or being similar to the caps attached to the money bags stolen during the robbery. A firearms expert testified that the pellets and wadding taken from Jaeger's body came from Remington shells similar to those seized in Laws' apartment. And a police expert testified as to the meaning of the 'street talk' used in a highly incriminating note written by Laws while he was in custody after the robbery. Laws acknowledged the writing of this note but denied that it related to the robbery or the distribution of the proceeds thereof.
"The defendant Washington did not testify in his own behalf but did present testimony through witnesses which included Margie Stevens. She said that he was with her at her apartment in New York during the morning of the robbery. The defendant Laws testified in his own behalf and denied all knowledge of or participation in the robbery." 50 N.J. at 165-171, 233 A.2d at 636-639.
In his petition for a writ of habeas corpus, Laws lists six separate grounds on which he claims he is being unlawfully incarcerated. We now address ourselves to each of these grounds.
I. Right to a Public Trial
During the course of Dennis Kingsley's cross-examination, he requested the court to remove his mother from the courtroom during his testimony.*fn1 The Judge complied with this request stating that the presence of Dennis' mother inhibited Dennis' testimony. Laws argues that the ouster of Dennis' mother constituted a denial of Laws' right to a public trial in violation of the Sixth Amendment.*fn2 With this contention we cannot agree.
The requirement of a public trial required by the Sixth Amendment has been incorporated into state court proceedings by the Fourteenth Amendment. United States ex rel. Bennett v. Rundle, 419 F.2d 599, 604 (3 Cir. 1969); Estes v. Texas, 381 U.S. 532, 559-560, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965) (Warren, Chief Justice, concurring). This requirement is not absolute in the sense that a defendant has the right to have any particular person present under all circumstances during the course of the trial. "There is general agreement that spectators having no immediate concern with the trial need not be admitted in such numbers as to overcrowd the courtroom and take up room needed for those who do have special concern with the trial such as the court officers, jurors and witnesses, and the relatives and friends of the defendant. Moreover those spectators who are admitted must observe proper decorum and if their conduct tends in any way to interfere with the administration of justice in the courtroom they may, of course, be removed. Likewise there is agreement that in cases involving sexual ...