APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Gibbons, Weis and Sloviter, Circuit Judges. Sloviter, Circuit Judge, dissenting.
A state trial judge took the unusual step of permitting a defendant who had not testified to deliver a summation to the jury in addition to that made by his counsel. On rebuttal, the prosecution pointed out the defendant's failure to discuss crucial elements of the case. In this habeas corpus proceeding, the district court found that the prosecution's rebuttal included comment on the defendant's failure to take the stand. The court also held that, in choosing to make his own summation, the defendant did not effectively waive his right to counsel. On these grounds, the court granted the writ. Although the state trial proceedings were unorthodox and are not to be recommended, we conclude that they did not amount to constitutional violations. Accordingly, we vacate the order of the district court.
Petitioner Joseph Bontempo was found guilty in the New Jersey court of murder, robbery, escape and unlawful possession of a revolver.The convictions were affirmed on direct appeal. Bontempo then brought state post-conviction proceedings in the New Jersey Superior Court, Law Division. After an evidentiary hearing, the court denied relief, State v. Bontempo, 170 N.J. Super. 220 (Law Div.), 406 A.2d 203 (1979), and was affirmed on appeal. Next, Bontempo sought a writ of habeas corpus in the United States District Court pursuant to 28 U.S.C. § 2254. The writ was granted after an evidentiary hearing.
This case stems from the murder of Nicholas Sena, the proprietor of a delicatessen who was fatally shot at his store in New Jersey during a daylight robbery on April 7, 1974. There were no eye-witnesses to the shooting, but two police officers in a patrol car arrived on the scene shortly afterwards and saw Bontempo nearby changing his clothes.
Bontempo fled when he saw the police. He was apprehended after a short chase during which he took money from his pockets and threw it on the ground. His accomplice, a man named Zelinski, was captured while changing clothes in a nearby telephone booth.*fn1 Both men were placed in the back of the police car, where Bontempo was seen taking money from his pants, this time in an attempt to hide it in the crease of the car seat.
As the police were driving the two men back to the delicatessen, Zelinski produced a gun and ordered the officers to drive in another direction. The police testified that during the course of the ride, Bontempo appeared to be frightened and at one time told Zelinski not to shoot the officers. The police managed to flee from the car when it slowed for traffic. Zelinski exchanged gunfire with one of them, but no one was hit. Zelinski then drove off in the patrol car with Bontempo still in the back seat.
Two days later, the pair went to the home of Bontempo's cousin. Bontempo told his cousin's wife that he had struck the delicatessen owner over the head during the robbery and that Zelinski had shot the man. On the third day of their stay, Bontempo and Zelinski took an overdose of Seconal. While they were unconscious, Bontempo's cousin slipped away and notified the police, who came and arrested the pair. Bontempo was found with his hand on the revolver used in the murder.
At Bontempo's separate trial, his admission to his cousin's wife was put into evidence, along with testimony of the police officers and other witnesses who saw him changing clothes and running away. Additional evidence included the victim's wallet, some clothing and a revolver, which were all found near the area where Bontempo had first been seen by the police. Testimony also indicated that money was missing from the delicatessen. During a recess after the prosecution had rested, Bontempo conferred with defense counsel and decided not to take the stand. Bontempo presented no evidence and rested. This occurred on a Friday afternoon.
When court reconvened on Monday morning, the prosecutor and defense counsel gave their summations to the jury. The judge had begun the charge when Bontempo suddenly interrupted, shouting, "I would like to say something." The judge stated he would hear him, but asked the bailiff to remove the jury. Bontempo continued to shout, "I wanted to say it in front of the jury. I feel I am denied a fair trial." Before the jury could be removed, Bontempo stated, "I have nineteen witnesses to prove I did not do this crime. . . . I can't bring them in and I can't testify. . . . I have seen my attorney for 26 hours in seven months that I have been incarcerated in the Newark Street Jail." After the jury left the room, he continued, "Now, I am going to end up getting butchered in here. This is ridiculous."
The trial judge told Bontempo, "I am going to hear you, and you can make as many speeches as you want to the jury if you elect to do so. . . . I am going to let you say whatever you want to the jury, but before you do so, I thought I owed you the courtesy to first of all discuss what you want to say with your attorney, indicate to him what you want to say, get his best advice on it." After some further comments along those lines, the judge said, "Talk it over with [defense counsel]."
Bontempo explained to the judge that he wanted to speak to the jury, but was reluctant to take the stand because he had brain damage and might not remember things that would be asked on cross-examination. He wanted to have doctors called in to explain that a bullet injury had affected his memory. He also feared that his previous criminal record could be divulged, and repeated that he had witnesses who could exculpate him.
The trial judge stated that he would be willing to reopen the case so that Bontempo could either present additional testimony or speak to the jury. The judge observed that he had allowed defendants to make their own opening and closing arguments in other cases. He also said that if Bontempo elected to call witnesses or take the stand, the state could bring in rebuttal testimony. The judge added, "If Mr. Bontempo elects that he wants to make a closing argument to the jury, the state will have an opportunity to make a further closing argument."
Bontempo and his lawyer then withdrew from the courtroom to confer. When they returned, Bontempo said he could not take the stand. The trial judge then asked if Bontempo wanted to say anything to the jury, and stated, "You started to, sir, and I stopped you because I thought you wanted to discuss it with your lawyer. . . . If you want to say anything to the jury, I will permit you to do so, sir." This colloquy followed:
"[DEFENSE COUNSEL]: You can talk to the jury. The Judge is giving you an unusual opportunity.
[BONTEMPO]: I know, I know, I'm trying to think.
[DEFENSE COUNSEL]: But it is your decision to make. He will give you time to think. He will give you an opportunity.
[BONTEMPO]: I know, I'm trying to think. Yeah, all right, I'll talk to them. Yes, your Honor.
[BONTEMPO]: Yes, I'll talk to them.
THE COURT: You want to talk to the jury?
THE COURT: You realize the Prosecutor will have an opportunity to answer what you have to say?
[BONTEMPO]: Can he go first?
[BONTEMPO]: Let him go first.
THE COURT: You go first. I'll tell the jury that everything you say they don't have to believe, because it won't be under oath. That's what I'll tell the jury.
[BONTEMPO]: Alright, yeah, what the hell. What have I got to lose?"
In his argument to the jury, Bontempo said he could not take the stand because his memory was impaired as a result of brain damage and his doctors were unavailable to testify. He spoke of the length of time he would have to serve if convicted and of the suffering his family would have to endure. He began his narrative of the events at the point where he saw the police car and said he ran away because he feared the car would run over him. He denied throwing money away, insisted he had never killed anyone, and said he was afraid of guns. He explained that his part in the police kidnapping and escape was caused by fear of Zelinski, and said he had persuaded Zelinski to join in taking the Seconal so his cousin could go to the police.
In rebuttal, the prosecutor reminded the jurors that the only testimony they were to consider and evaluate was that which came from the witness stand under oath. He then posed a series of questions about matters that Bontempo had not discussed.
"Was Mr. Bontempo in Mr. Sena's store on April 7, 1974? . . . Was Mr. Sena killed in his presence or by him? . . . Because as long as he talked he never talked about that. . . . Did he and Joey Zelinski go there to rob Mr. Sena? . . . Did he hit Mr. Sena over the head with a gun? . . . Did he flee from Mr. Sena's store after Mr. Sena was shot . . .? That is another question or another area in which he never touched when he stood up and spoke. . . . He says he ran because he thought he was going to get hit by the police car. Do you believe that? Not under oath, a statement not subject to cross-examination."
The prosecutor also remarked that "Mr. Bontempo had his opportunity to speak to you. . . . Mr. Sena, he doesn't have an opportunity to tell you what went on there because he's dead. . . ." Defense counsel did not object to any part of the prosecution's rebuttal.
The trial judge instructed the jury that Bontempo was entitled to a presumption of innocence and that no inference of guilt could be drawn from his decision not to take the witness stand. The jury returned verdicts of guilty on the counts of conspiracy, entry with intent to rob, felony murder, armed robbery, possession of a revolver and escape, but acquitted Bontempo on charges of entry with intent to kill, assault with intent to rob, kidnapping, assault with intent to kill, and larceny.
In the state post-conviction proceedings, Bontempo contended his fifth amendment privilege against self-incrimination had been violated by the prosecution's rebuttal and that, in making his statement to the jury, he had not validly waived his sixth amendment right to counsel.
The Superior Court found that the closing argument by Bontempo at the trial was communicative behavior which was "testimonial," notwithstanding his refusal to take the witness stand. Accordingly, the prosecutor's comments were held to be proper rebuttal and not in violation of Bontempo's fifth amendment rights. 406 A.2d at 215. The court stated that during "the post-conviction relief hearing, [Bontempo's] trial counsel testified that he discussed the possibility of Bontempo giving an unsworn statement to the jury, but that he never gave any specific advice in that regard." Id. at 216 n. 13. Moreover, there were findings that no unlawful coercion or pressure was used to compel Bontempo to waive his fifth amendment rights and that his waiver was voluntary, knowing and intelligent. Id. at 217.
In addition, the court ruled that Bontempo's "direct reference to his failure to take the stand and his accompanying explanation were an invitation to the prosecutor to comment upon the subject. Lockett v. Ohio, 438 U.S. 586 [98 S. Ct. 2954, 57 L. Ed. 2d 973] (1978)." Id. The court also concluded that the "trial record fairly reeks of [Bontempo's] guilt" and that the "possibility of prejudice flowing from the prosecutor's comments [is] so remote as to preclude post-conviction relief." Id.
As to Bontempo's sixth amendment ground, the court stated that "since the issue was presented and decided on direct appeal, [Bontempo] is now precluded from relitigating the question," 406 A.2d at 211. It added, "In any event, [Bontempo's] argument is totally devoid of merit." Id. at 211 n.4.
Bontempo asserted the same fifth and sixth amendment bases in his federal habeas petition. After its evidentiary hearing, the district court concluded that Bontempo's argument to the jury was non-testimonial, and that his waiver was not voluntary and knowing. The court conceded that, under the circumstances, the prosecutor had the right to comment that Bontempo had not testified and his explanations were not evidence. The district judge also recognized that the prosecutor was most likely permitted to comment on Bontempo's explanations themselves. But the court held that the prosecutor had gone too far in itemizing every point that the defendant had not addressed, and found the reminder that the dead man could not testify to be excessively prejudicial.
A sixth amendment violation was found because the "clear effect of the court's invitation to address the jury was a waiver of the assistance of counsel. . . . While it is true that counsel was present, and in fact encouraged [Bontempo] to make the statement, this cannot relieve the [trial] court of its responsibility. The court must assure itself that the defendant himself realizes the consequences of his actions. Merely informing the defendant that the prosecutor will respond is insufficient.. . . How or why the court would have encouraged a defendant with his limited intelligence and illness to render an unprepared closing argument without review by counsel is beyond comprehension." On these grounds, the district court ordered that the state retry Bontempo or a writ of habeas corpus would issue.
At the outset, we note that the New Jersey courts have not approved the practice of allowing a represented defendant to make his own closing argument to the jury. In fact, the state post-conviction court commented that "the procedure adopted by the trial judge is without precedential support and is of doubtful utility." 406 A.2d at 217. The issue before us, however, is not whether we approve of the procedure, nor whether we would permit it if the question were one within our supervisory authority over the federal trial courts within ...