Joseph Bontempo v. Peter Fenton, Warden, Rahway State Penitentiary, and James R. Zazzali, Attorney General of the State of New Jersey

692 F.2d 954

• Court: Court of Appeals for the Third Circuit
• Decided: December 10, 1982
• Docket: 81-3016
• Status: Published

Opinions

OPINION OF THE COURT

WEIS, Circuit Judge.

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.¹ 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, “[I]f 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, “[Y]ou 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.

THE COURT: Pardon me?

[BONTEMPO]: Yes, I’ll talk to them.

THE COURT: You want to talk to the jury?

[BONTEMPO]: Yes.

THE COURT: You realize the Prosecutor will have an opportunity to answer what you have to say?

[BONTEMPO]: Can he go first?

THE COURT: You 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 [Bon- . tempo’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 conséquences of his actions. Merely informing the defendant that the prosecutor will respond is insufficient. ... [H]ow 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 “[t]he 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 this circuit. The question is whether the actions of the state trial court or the prosecutor violated Bontempo’s constitutional rights.

I

Bontempo argues that since his remarks were not to be considered as evidence, the prosecutor was barred from commenting on his failure to take the witness stand. He relies on Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which held that the fifth amendment prohibits the court and prosecutor from commenting on a defendant’s failure to testify. In Griffin, there was direct comment by the prosecutor on the defendant’s refusal to take the stand coupled with instructions that the jury could consider failure to testify as tending to indicate the truth of the evidence against him. The Supreme Court viewed such comments and instructions as “a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” Id. at 614, 85 S.Ct. at 1232.

The case before us is different. Here, there was no direct reference in the summations to Bontempo’s refusal to take the stand other than his own comments and explanations. The prosecutor’s rebuttal was directed, not to Bontempo’s lack of testimony as such, but rather to the closing argument. The prosecutor’s questioning about gaps in the narrative that Bontempo had given to the jury is a common way of attacking a defense summation, even one delivered by a lawyer.

The test for determining whether remarks are directed to a defendant’s failure to testify is “whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” U.S. v. Chaney, 446 F.2d 571, 576 (3d Cir.1971). Questions about the absence of facts in the record need not be taken as comment on defendant’s failure to testify. Braxton v. Estelle, 641 F.2d 392, 397 (5th Cir.1981).

The circumstances here were unusual. The jury was told that Bontempo’s argument could not be considered as evidence and yet he talked about facts which were not in the record. The prosecutor’s comments about those unsworn accounts and about Bontempo’s failure to mention other relevant events was fair reply to the unorthodox closing argument. The jury’s attention had been focused on the facts mentioned in the closing argument, despite the instruction that they were not evidentiary. The prosecutor was not prohibited from recognizing the reality of the situation and answering Bontempo’s narrative. We are not persuaded that in so doing the prosecution did comment on Bontempo’s failure to testify. Consequently, Griffin is not applicable.

Even if the prosecutor’s remarks did constitute comment on the failure to take the stand, they did not amount to a constitutional violation. As the district court found, Bontempo “stridently directed the jury’s attention to his own failure to testify.” He even , offered an unsworn excuse. At that point, the issue was in the jury box, if it had not been there before. Jurors, after all, cannot help remembering that the defendant did not testify. To say that the prosecution violated Bontempo’s rights by calling the jury’s attention to something he had already argued is to retreat from reality. Bontempo had made the point himself. If it was prejudicial, additional prosecutorial comment did not make it more so. Indeed, Bontempo’s explanation for his failure to testify, untested by cross-examination, was probably more helpful to his cause than ignoring the matter altogether.

In Lockett v. Ohio, 438 U.S. 586, 594-95, 98 S.Ct. 2954, 2959, 57 L.Ed.2d 973 (1978), the Supreme Court held that because the defendant initially focused attention on her silence, prosecutorial comment on that fact was not reversible error. In that case, defense counsel, in his opening to the jury, outlined the defendant’s case. Later, counsel also told the court, in the jury’s presence, that the defendant would be the next witness after recess. When that time arrived, however, the defendant had changed her mind and did not take the stand. The Supreme Court concluded that the prosecutor’s closing remarks about the state’s “unrefuted” and “uncontradicted” evidence added nothing to the impression already created by defendant’s refusal to testify and “did not violate constitutional prohibitions.” Id. For the same reasons, we reject Bontempo’s contention that the prosecutor’s remarks were impermissible.

We conclude that there was no fifth amendment violation at the state trial.² We do not condone the prosecutor’s comment to the jury that while Bontempo could speak to them, the decedent could not. Although that comment was objectionable, it did not rise to the level of a constitutional violation.

II

Bontempo also contends that, in making his statement to the jury, he was deprived of the assistance of counsel in violation of the sixth amendment. The district court agreed that “[although counsel nominally represented [Bontempo] at this point, the clear effect of the court’s invitation to address the jury was a waiver of the assistance of counsel, ... [a] right [that] may be effectively waived only by intentional relinquishment or abandonment.”

We are unable to accept Bontempo’s argument. He was, in fact, represented before, during and after his statement by an experienced defense attorney. The trial judge’s offer to reopen the case and allow Bontempo to either take the stand or make an argument to the jury was made only after his outburst during the charge to the jury. It was Bontempo’s protest in the jury’s presence that he was being denied a fair trial which precipitated the trial judge’s unusual response.

The record reflects that after an extended colloquy, Bontempo and his lawyer heeded the judge’s urging and left the courtroom to confer on the options extended by the court. Although defense counsel said he did not offer any advice during that conference on the desirability of Bontempo’s argument to the jury, the option was discussed.³

When they returned to the courtroom, Bontempo’s lawyer announced that Bontempo would not take the stand and the judge inquired whether Bontempo wanted to say anything to the jury. Bontempo replied, “How can I say something to the jury? I’m not a lawyer.” The judge then reminded him, “You started to sir, and I stopped you because I thought you wanted to discuss it with your lawyer.... Now I’m not trying to foreclose you.”

Counsel was present during this exchange, remarked that the judge was giving Bontempo an unusual opportunity and encouraged him to make the statement. Counsel repeated that it was Bontempo’s decision to make, adding, “He [the judge] . will give you time to think. He will give you an opportunity.”

Thus, the record makes it clear that Bontempo’s decision was reached only after he had consulted with counsel outside the presence of the judge and later heard approval of that course of action by his lawyer in the courtroom. Nor was Bontempo pressed into making an immediate decision. His lawyer indicated that further time would be granted if necessary.⁴ The decision was a tactical one and carried risks, but it is not at all clear, even in hindsight, that Bontempo blundered in deciding to talk to the jury.

Bontempo gained a number of advantages in making his statement. He gave an excuse for not testifying that may have been convincing to some of the jurors. He did so without giving the state an opportunity to reveal his previous criminal record, a matter which was one of the strongest factors leading to his refusal to take the stand. In addition, he was able to tell the jury that he had acted in fear of Zelinski and that he had arranged for the pair to take an overdose of Seconal so his cousin could summon the police.

Bontempo also tried to play on the jury’s sympathy by telling them of his family’s suffering and that he could get life imprisonment if found guilty. Most of these matters could not have been presented to the jury by a lawyer and so Bontempo fared better than most defendants in a criminal case.

There were some disadvantages too. By discussing the events of the day in question, Bontempo admitted that he participated in at least the kidnapping of the police officers and the escape. But there could not have been any doubt of these facts. There was no question of misidentifieation. By not mentioning his presence in the delicatessen, Bontempo did invite comment by the prosecutor. The failure to discuss that critical part of the case cannot be viewed as an oversight. Bontempo had no difficulty in remembering other events of the day when he wished to give a version favorable to himself.

It is true the jury was told that these factual statements by Bontempo should not be considered as evidence. Nevertheless, Bontempo obviously wanted them to be remembered by the jury and he can hardly complain that he was permitted to plant ideas in the jurors’ minds without being under oath and subject to cross-examination. That his summation was not wholly ineffective is demonstrated by the fact that the jury acquitted him on the charge of kidnapping the police officers, a count on which there was ample evidence to support a conviction.

In sum, we are not persuaded that Bontempo has shown a violation of the sixth amendment.⁵ His decision to address the jury was taken with the approval of his experienced counsel. This is not the case of an unrepresented defendant who is called upon to make an important decision without the benefit of expert advice.⁶

We conclude that the petitioner Bontempo has not established his right to a writ of habeas corpus and, accordingly, the order of the district court will be vacated.

1 . One of the officers testified, “We saw a man [Bontempo] there changing clothes, taking his pants off, actually a pair of pants, he had another pair of pants on.” The prosecution’s theory was that Bontempo and Zelinski had worn two layers of clothing that day — “an outer set and an inner set” — so that after leaving the delicatessen they could remove the outer layer and depart, no longer matching any description that might be given by an eyewitness to the robbery.

2 . For cases where a pro se defendant did not take the stand, but brought out facts during presentation of the case which caused comment from the prosecution, compare United States ex rel. Miller v. Follette, 397 F.2d 363 (2d Cir.1968), and Redfield v. U.S., 315 F.2d 76 (9th Cir.1963), with United States v. Curtiss, 330 F.2d 278 (2d Cir.1964). See Note, 38 Temp. L.Q. 102 (1964) (criticizing Curtiss and approving Redfield).

3 . As noted earlier, the New Jersey post-conviction court found that defense counsel did, during the recess, discuss the possibility of Bontempo giving an unsworn statement. We are obligated, under 28 U.S.C. § 2254(d), to accord a presumption of correctness to “a determination after a hearing on the merits of a factual issue made by a State court,” unless the determination falls within one of the seven categories of exceptions in section 2254(d) or “is not fairly supported by the record.” See Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

4 . Bontempo never asked the trial judge for time to rehearse his summation with counsel, although the record indicates that such a request probably would have been granted.

5 . Bontempo also contends that by permitting him to deliver his own summation, the trial court “led him into a situation where he was prevented from testifying under oath ...” despite the holding in Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961). (Pet. Brief at 44.) This contention is simply not supported by the record and has no merit.

6 . As the dissent aptly notes, the unorthodox procedure used at the trial causes some difficulty in categorizing the alleged violations in this case. Although the dissent finds a partial deprivation of counsel in Bontempo’s summation, his remarks were really supplemental to, and not in lieu of, retained counsel’s closing to the jury. In the circumstances here, it is not clear that Bontempo’s actions amounted to a “partial waiver of his right to counsel.” But even if it be considered as such, cases on direct appeal such as United States v. Welty, 674 F.2d 185 (3d Cir.1982), are not controlling in this collateral attack on a state conviction where the petitioner must establish a constitutional violation. Moreover, the factual situation is quite different. Bontempo was represented throughout by counsel of his choice, unlike Welty who discharged appointed counsel just before trial began because of lack of confidence in his ability.