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United States v. Pinto

decided: April 23, 1968.

UNITED STATES OF AMERICA EX REL. JAMES EDWARD HILL, APPELLANT,
v.
WARREN PINTO, SUPERINTENDENT NEW JERSEY STATE PRISON FARM, RAHWAY, NEW JERSEY



Hastie, Freedman and Van Dusen, Circuit Judges.

Author: Freedman

Opinion OF THE COURT

FREEDMAN, Circuit Judge.

Appellant was convicted in a New Jersey state court of murder in the second degree and was sentenced to fifteen to twenty years imprisonment. The Supreme Court of New Jersey affirmed his conviction.*fn1 His subsequent pro se petition in the district court for a writ of habeas corpus was denied*fn2 and from that action he brings this appeal.

I.

Early in the trial the prosecutor stated in open court in the absence of the jury that petitioner had threatened to kill the State's principal witness, Arthur Lee Hames, if he testified against him and sought to present Hames' testimony of the threat. An objection having been interposed the trial judge left open the question whether the testimony was admissible. Next day the court discussion of the threat was reported in the local newspaper. When petitioner's counsel called this to the attention of the trial judge it was apparently agreed that an instruction to the jury, which had not been sequestered, to ignore the newspaper report would be appropriate. As it turned out, however, no specific request for such an instruction was made and the trial judge said nothing on the subject to the jury.

Three days after the newspaper report appeared the trial judge permitted Hames to testify to petitioner's threat against him and refused the request of petitioner's counsel that petitioner be permitted to testify for the limited purpose of denying that he made the threat. The trial judge ruled that testimony by petitioner in this area would subject him to complete cross-examination on the substantive evidence of his guilt and also to impeachment of his credibility.

Petitioner argues that (1) he was denied due process of law because of the admission of Hames' testimony regarding the threat; (2) he was denied due process of law because of the harmful effect of the newspaper report; and (3) Hames' testimony violated his privilege against selfincrimination because it forced him to take the stand.

(1) Hames' testimony regarding the threat made by petitioner was given in these words: "He said if I go up to testify against him, he said, 'I already killed one and would kill another.' He wouldn't get any more time for killing another."

This testimony was plainly admissible because it was relevant to show consciousness of guilt. 2 Wigmore, Evidence, ยงยง 277-278 (3d ed. 1940). The threat was also relevant because the form it took justified an inference that petitioner acknowledged that he had killed the victim for whose murder he was on trial.

(2) It follows from the admissibility of the testimony of the threat that there is no basis for the claim that due process was violated because of the failure to caution the jury to disregard the newspaper report. Hames' direct testimony of the threat obliterated whatever harm the newspaper report alone might have done.

(3) Petitioner's claim that his privilege against self-incrimination was violated because he was forced to take the witness stand in his own behalf in order to deny making the threat against Hames falls with the conclusion that Hames' testimony was admissible. The privilege is not violated because a defendant feels the need to repel with his own testimony incriminatory evidence which was properly received against him.

II.

The State sought to prove in its case in chief that petitioner had killed his former mistress, Anita Folk, by showing that he had struck her on the head with a chair when he found her in bed with another man. Hames testified to this effect, and a police officer testified that petitioner orally ...


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