(D.C. Civil Action No. 605-71). ON APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Adams and Gibbons, Circuit Judges and Layton, District Judge.
In this appeal, the petitioner seeks review of a decision by the district court*fn1 denying his application for a writ of habeas corpus. This Court is urged to hold that petitioner's constitutional rights were violated and that error, not harmless in nature, was committed, when at his state trial the prosecutor commented during his summation to the jury that petitioner consulted an attorney the day after the alleged crime was committed and suggested that from this the jury should question the innocence of petitioner.
Petitioner, Isiah Macon, was convicted in state court of manslaughter and sentenced to serve a term of not less than seven nor more than ten years. It appears that petitioner and one Abrahms had been in a minor traffic accident in New Brunswick, New Jersey. The deceased, Ralph Sasso, arrived at the scene of the accident and became involved in the discussion between Macon and Abrahms. Both Sasso and Macon had been drinking that evening. During the ensuing altercation Sasso was killed by Macon's gun.
The details of the events leading up to Sasso's death are in dispute. The state's evidence indicates that when, in the course of the argument, Sasso placed his hand on Macon's shoulder, Macon stepped back, drew a gun, shot Sasso twice, and then drove away with friends. Petitioner's version of the events indicates that Sasso interfered in a racially abusive and aggressive manner, punched Macon twice, assaulted Macon with the help of friends, and was shot by Macon's gun, which was fired accidentally by Macon during the course of the struggle.
It is uncontradicted that after the incident, Macon and his friends drove away and Macon instructed them to give no statements and to take no action until he had consulted his attorney. Macon testified that, alone, he then drove aimlessly around, threw the gun out the car window, parked his car in a place he could not recall, walked home, put his blood-stained shirt away, went to bed, and the next morning telephoned his lawyer and was later arrested.
In view of the different accounts of what had happened at the time of the shooting, it thus became crucial for the jury to determine which characterization of the facts was true, the state's or Macon's. If the jury credited the state's evidence, it could very well have brought in a verdict of murder. On the other hand, a belief in petitioner's testimony and other defense evidence might have supported the view that Sasso's death was either accidental or the result of Macon's attempt to repel aggression.
During his summation to the jury, the prosecutor commented upon Macon's actions following the shooting incident:
"Then what does he do? He drives along and can't tell us where. The gun goes out the window. An act of innocence?
"The car is left somewhere and he doesn't remember where. An act of innocence?
"He goes home and puts the shirt down in the chest, a torn shirt. Then he goes to bed. He says he had trouble sleeping. He gets up the next morning and lo and behold, what does he do? He calls his lawyer. These are acts of innocence ? (Emphasis added)
"I say, ladies and gentlemen, his story is implausible, impossible and you can judge by his own conduct, ...