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

BONTEMPO, Appellee, Joseph FENTON, Warden, Rahway

Peter State

Penitentiary, Zazzali, and James R. At

torney State Jer General New

sey, Appellants. 81-3016.

No. Appeals, Court of

United States Circuit.

Third Sept. 16,

Argued 1982.

Decided Nov.

Rehearing Rehearing In Banc 10, 1982.

Denied Dec. 28,1983. March Denied

Certiorari S.Ct. 1506.

See 103

Hillary (argued), L. Brunell Asst. Prose- Kimmelman, cutor, Atty. I. Irwin Gen. Schneider, L. Jersey, George Essex U.S.C. 2254. The writ granted New was § after Newark, Prosecutor, N.J., evidentiary hearing. for County appel- an lants. case stems from the This murder of Nich- Sena, proprietor of a

Roger (argued), Philip A. Lowenstein Ro- olas delicatessen senbach, Lowenstein, Sandler, fatally shot at his store Brochin, was who New P.C., Roseland, N.J., during daylight robbery April 7, a Kohl, Boylan, Jersey Fisher & eye-witnesses There were no appellee. for police two shooting, patrol but officers in a GIBBONS, Before and WEIS SLOVI- on the scene shortly car arrived afterwards TER, Judges. Circuit Bontempo nearby changing saw his and clothes. OF THE OPINION COURT Bontempo police. fled when saw the WEIS, Judge. Circuit apprehended He after a was short chase judge took step A state trial the unusual during which he took money pock- from his a defendant permitting of who had not ground. and threw it on the ets His accom- to deliver a testified summation to the Zelinski, a man named plice, captured was to that made his in addition counsel. On changing clothes in nearby while a tele- rebuttal, prosecution pointed out booth.1 Both men were phone placed in the car, police to discuss crucial ele- where Bontempo defendant’s failure back of taking money from his corpus pants, case. In this habeas this time ments of the seen attempt an it in district court hide the crease of the found that proceeding, seat. rebuttal car prosecution’s included comment on failure to the defendant’s take the stand. police driving As the were the two men that, held in choosing The court also delicatessen, produced Zelinski back to the summation, make his own the defendant did ordered the gun and officers to drive in effectively waive his right to counsel. police another direction. The testified that grounds, granted these the court On during ride, the course of the Although the state trial proceedings writ. frightened to be and appeared at one time were unorthodox and are not to be recom- not to shoot the officers. The told Zelinski mended, they we conclude that did not from the car when it managed to flee police violations. Ac- amount to constitutional exchanged Zelinski gun- traffic. slowed for vacate the order of the dis- cordingly, we them, one of fire with but no one was hit.

trict court. patrol Zelinski drove off in the car Bontempo still in the back seat. with Joseph Bontempo Petitioner was found Jersey murder, guilty in the New court of later, days pair Two went escape possession unlawful and of robbery, Bontempo’s cousin. Bontempo home of told were affirmed a revolver. The convictions cousin’s wife that he his had struck the appeal. Bontempo direct then brought owner over the head during delicatessen post-conviction proceedings state in the Zelinski had shot the robbery and man. Superior Court, Jersey New Law Division. day the third of their stay, Bontempo On evidentiary hearing, an After the court de took an and Zelinski overdose of Seconal. relief, v. Bontempo, nied State unconscious, N.J.Su they While Div.), (Law per. (1979), A.2d 203 and away police, notified the slipped cousin Next, appeal. was affirmed on Bon the pair. Bontempo and arrested who came of habeas tempo sought corpus a writ hand on the revolver found with his pursuant District Court United States murder. used in the testified, leaving officers er 1. One of the “We saw a man set and an inner set” —so that after clothes, changing taking [Bontempo] they there could remove the outer the delicatessen pants off, pants, actually pair depart, longer matching any layer he had an- no de- pair pants prosecution’s eyewitness might given other scription on.” The be theory robbery. Zelinski layers clothing day worn two out- —“an trial, Bontempo’s separate damage At admis- might not remember things wife was put his cousin’s into sion to evi- would be asked on cross-examination. dence, testimony He wanted to along police have doctors called in to explain that a bullet injury officers and other witnesses who saw him had affected his memory. He also feared changing running previous clothes and that his away. Addi- criminal record could be divulged, and re- wallet, included the tional evidence victim’s peated he had witnesses who could revolver, clothing some and a which were him. exculpate all the area Bontempo found near where police. had first seen the been Testimo- judge The trial stated that he would be ny money was missing also indicated willing reopen to the case so that Bontempo During from the a recess af- delicatessen. present could either additional testimony or rested, ter had prosecution the to Bontempo speak jury. judge The observed that defense conferred with he had allowed and decided defendants to make their closing own Bontempo presented opening arguments to take the stand. in oth- er cases. He also said that if Bontempo no evidence and rested. This occurred on a elected to call witnesses or take the Friday afternoon. bring state could rebuttal testimony. When court reconvened on Monday morn- added, The Mr. judge Bontempo elects “[I]f ing, and defense counsel that he wants to make a closing argument gave jury. their to the summations The jury, to state will have an opportu- judge charge begun when Bontem- nity closing to make a further argument.” po suddenly interrupted, shouting, “I would Bontempo and his lawyer then withdrew something.” say like to The judge stated from the courtroom to confer. they When him, he would hear but asked the bailiff to returned, Bontempo said he could not take jury. Bontempo remove the continued to judge The stand. trial then asked if shout, say “I wanted to it in front of the Bontempo wanted to say anything to the jury. I denied a fair feel I am trial.” Be- stated, jury, and to, sir, started “[Y]ou removed, could be fore stopped I I you thought because you want- stated, “I have nineteen prove witnesses to your lawyer.... ed to discuss it with If I did not this do I crime.... can’t bring you want to say anything jury, to I will them in testify.... and I can’t I have permit you so, to do sir.” This colloquy my attorney seen for 26 hours in seven followed: months I have been incarcerated in the You can talk “[DEFENSE COUNSEL]: Jail.” Newark Street After the jury left jury. Judge to the The giving you room, continued, “Now, he I am going an opportunity. unusual up getting end butchered in here. This know, know, I I I’m try- [BONTEMPO]: is ridiculous.” ing to think. judge told trial Bontempo, “I am But it is your [DEFENSE COUNSEL]: going you, you to hear can make as decision to make. He will give you many speeches you want if give you time to an think. He will you elect to do so.... I going am to let opportunity. you say you whatever want to jury, but know, I’m trying to [BONTEMPO]: so, before you thought you do I owed Yeah, right, talk think. all I’ll to them. courtesy to first of all you discuss what Yes, your Honor. your want to attorney, indicate to THE COURT: Pardon me? him you what say, want get his best Yes, I’ll talk to them. [BONTEMPO]: advice on it.” After some further com- THE COURT: You want to talk to the lines, ments along said, those the judge jury? “Talk it over with [defense counsel].” Yes. [BONTEMPO]: Bontempo explained to judge that he realize the You Prosecutor THE COURT: wanted speak jury, was reluc- but to answer opportunity will have tant to take he had brain the stand because have to you say? what go first? The prosecutor Can also remarked that “Mr. [BONTEMPO]: opportunity had his speak go THE COURT: You first. Sena, doesn’t you.... Mr. have an him go Let first. [BONTEMPO]: what went opportunity to tell on there . go COURT: You first. I’ll tell the THE he’s dead....” Defense counsel everything you say they jury that don’t part of object prosecu- did not believe, because it won’t be have to tion’s rebuttal. what I’ll tell the That’s oath. instructed the jury that (cid:127) Bontempo was entitled to a presumption of Alright, yeah, what the [BONTEMPO]: innocence and that no guilt inference of got hell. What have lose?” could be drawn from his decision not to argument In his to the jury, Bontempo the witness take stand. The returned he could not take stand because said on the guilty verdicts counts of conspir- as a result memory impaired of brain rob, acy, felony with intent to mur- entry damage and his doctors were to unavailable der, possession robbery, armed of a revolver length of the of time testify. spoke He he escape, but acquitted Bontempo and convicted and of the would have to serve if charges entry kill, of with to intent assault family would have to suffering rob, his endure. intent to kidnapping, with assault with began his narrative of the He events at the kill, larceny. intent to and police where he saw the point car and said post-conviction In the state proceedings, he feared away he ran the car Bontempo contended his fifth amendment n denied throwing over him. He would run privilege against self-incrimination had he had never money away, insisted killed prosecution’s by been rebuttal violated guns. said he was afraid of anyone, and He that, making statement to the in explained part police that kidnap- jury, validly he had not waived his sixth escape was caused ping and fear of right to amendment counsel. Zelinski, persuaded had and said he Zelinski Superior The Court found clos- taking the join in Seconal so his cousin to at the ing argument by Bontempo trial was go police. could to the which behavior was “testi- communicative rebuttal, prosecutor In reminded the monial,” notwithstanding his refusal to take jurors only testimony they were to the witness stand. Accordingly, prose- and evaluate was that consider which came comments were held proper cutor’s to be the witness stand under oath. from He and not in violation of Bontempo’s rebuttal questions a series of posed about mat- rights. fifth amendment 406 A.2d at 215. not discussed. Bontempo ters that that during post-con- The court stated “the hearing, [Bontempo’s] viction relief Bontempo Mr. in Mr. “Was Sena’s store possi- he discussed the testified April 1974? ... Was Mr. Sena bility giving an unsworn or him? ... presence killed in his to the but jury, that he never statement as long as he talked never Because advice gave any specific regard.” in that Joey Did he and talked about that.... Moreover, there were Id. at 216 n. 13. to rob Mr. go Zelinski there Sena? ... pres- no unlawful coercion or findings that hit over the Did he Mr. Sena head a compel Bontempo sure was used to waive Did he flee from gun? ... Mr. Sena’s rights amendment his fifth and that his shot ... ? That store Mr. after Sena knowing and intelli- voluntary, waiver was or another question is another area gent. Id. at 217. he never touched up when he stood spoke.... he ran because says addition, He that Bontem- In court ruled get thought going he was hit to his to take “direct reference failure po’s explana- Do police accompanying car. believe that? Not stand and his oath, prosecutor subject statement not invitation tion were an subject. upon Lockett v. cross-examination.” comment Ohio, 438 U.S. 57 L.Ed.2d the district court [98 ordered that the state The court (1978).” Id. also retry concluded Bontempo or a writ of corpus habeas 973] fairly “trial record reeks would issue. [Bon- “possibility that the tempo’s] guilt” and . outset, At the we note that the New from the prejudice flowing prosecutor’s Jersey approved courts have not prac as to preclude post- so remote comments [is] tice of allowing represented defendant relief.” Id. conviction make his own closing argument Bontempo’s sixth As amendment fact, post-conviction the state court com stated that ground, the court “since the procedure mented adopted by “[t]he and decided on presented issue was direct precedential the trial without sup is precluded is now appeal, [Bontempo] from is of port utility.” doubtful 406 A.2d at relitigating question,” 406 A.2d at 211. us, however, 217. The issue before is not event, added, It “In [Bontempo’s] argu- procedure, approve whether we nor of merit.” Id. at totally ment devoid question it if the permit whether we would n. 4. supervisory our authority one within over the federal trial courts within this asserted the same fifth and question circuit. is whether the actions amendment bases in his sixth federal habe- (cid:127) of the state trial court or the evidentiary petition. hearing, After its violated rights. constitutional concluded that Bontem- district court po’s argument was non-testimo- nial, waiver was and that his not voluntary knowing. that, court Bontempo argues conceded that since his remarks circumstances, prosecutor the the had were not to be evidence, considered as to comment that prosecutor had was barred from commenting on explanations

not testified and were not his failure to take the witness stand. He evidence. The district recog- also California, relies on Griffin 609, v. 380 U.S. prosecutor nized that was most likely 1229, (1965), 14 L.Ed.2d 106 permitted Bontempo’s to comment ex- the fifth held that amendment prohibits the planations themselves. But the court held prosecutor court and from commenting on a prosecutor gone had too far in testify. Griffin, defendant’s failure to In itemizing every point that the defendant by prosecutor there was direct comment addressed, had not and found the reminder on the defendant’s refusal to take the stand dead man could not testify to be coupled with instructions that the jury prejudicial. excessively testify could consider failure to as tending to indicate truth of the against evidence A sixth amendment violation was found him. The Supreme Court viewed such com- because the “clear effect of the court’s invi- ments and instructions penalty as “a im- jury tation address the was a waiver of posed by exercising courts for a constitu- of counsel.... assistance While it is privi- It cuts down on the privilege. tional present, true counsel was and in fact by making its lege costly.” assertion Id. at encouraged [Bontempo] to make the state- 614, 85 S.Ct. at ment, this cannot relieve the court of [trial] responsibility. its The court must assure Here, The case before us is different. itself that the defendant himself realizes there was no direct reference summa- the conséquences Merely of his actions. Bontempo’s tions refusal take the informing prosecu- the defendant other than own comments stand and respond tor will is insufficient. ... explanations. prosecutor’s rebuttal [H]ow why or the court would have encouraged directed, Bontempo’s not was lack intelligence defendant such, his limited and to the closing but rather testimony as unprepared illness to render an closing ar- questioning argument. prosecutor’s gument without review is be- that Bontempo narrative gaps about yond comprehension.” grounds, On these to the is a common given way had summation, attacking a defense even one already argued is to retreat from reali- by lawyer. delivered ty. Bontempo had point made the himself. prejudicial, If it was prosecutori- additional The test for determining whether al comment did not make it more so. In- remarks are directed to a defendant’s fail deed, Bontempo’s explanation for his failure testify is ure to “whether the language used testify, untested cross-examination, manifestly intended or was of such probably more helpful to his cause than naturally character that the would ignoring the altogether. matter it a comment on the necessarily take to be Ohio, In Lockett 586, testify.” 594-95, failure of 438 U.S. the accused U.S. v. 2954, 2959, Chaney, (3d 446 F.2d 98 S.Ct. L.Ed.2d Cir.1971). (1978), Supreme Questions about the held that absence of facts in the because the initially record need not be taken focused as comment attention on her silence, prosecutorial comment testify. defendant’s failure to Braxton on that fact reversible Estelle, (5th was not error. Cir.1981). 641 F.2d de- counsel, fense in his opening to the jury, The circumstances here were un Later, outlined the defendant’s case. coun- usual. The was told that Bontempo’s court, sel also told the in the jury’s pres- argument could not be considered as evi ence, that the defendant would be the next dence he talked about yet facts which witness after recess. When that time ar- not in the prosecutor’s record. The rived, however, the defendant had changed comments about those unsworn accounts mind and did her not take the stand. The Bontempo’s and about failure to mention Supreme Court concluded that the prosecu- other events was fair reply relevant closing tor’s remarks about the state’s “un- closing argument. The jury’s unorthodox refuted” and “uncontradicted” evidence attention on the facts had been focused nothing impression added already closing argument, despite mentioned in the created defendant’s refusal to testify they instruction that were not eviden “did not violate prohibi- constitutional tiary. The prohibited reasons, tions.” Id. For the same we re- recognizing reality from of the situation ject Bontempo’s prose- contention that answering We narrative. impermissible. cutor’s remarks were that in so persuaded doing pros are not comment on Bontempo’s ecution did failure We conclude that there was no fifth testify. Consequently, to Griffin ap is not amendment violation at the state trial.2 plicable. prosecutor’s We do not condone the com that while jury Bontempo ment to the could prosecutor’s Even if the remarks did con- them, speak to the decedent could not. Al stitute comment on the failure to take the though that comment was objectionable, it stand, they did not amount a constitu- a did not rise to the level of constitutional tional violation. As district court violation. found, Bontempo “stridently directed the jury’s attention to his own failure to testi- , II fy.” He even offered an unsworn excuse. point, box,

At that the issue was in jury that, Bontempo also making contends in Jurors, if it had not been there before. jury, statement he was deprived his all, remembering after that the help cannot in of counsel violation of of the assistance To that the testify. say defendant did not The district the sixth amendment. court prosecution Bontempo’s rights violated “[although agreed nominally calling jury’s something attention to represented [Bontempo] point, at this Cir.1968), U.S., (9th 2. For cases where a se defendant did not and Redfield v. 315 F.2d 76 brought during Curtiss, Cir.1963), take the but out facts United States v. presentation Note, Cir.1964). (2d Temp. which caused com the case F.2d 278 See prosecution, compare (criticizing (1964) approving ment from the United Curtiss L.Q. Follette, (2d States ex dfield). rel. Miller 397 F.2d 363 Re . of the court’s invitation to give effect ad- will you clear time to think. He will of the was a waiver assist- dress the opportunity.” an you counsel, may be ... ance [that] [a] Thus, the record makes it clear that only by effectively waived intentional relin- Bontempo’s decision only was reached after or abandonment.” quishment he had consulted with counsel outside the accept Bontempo’s We are unable ar- presence judge and later ap heard was, fact, represented in be- He gument. of that course proval of action his lawyer his after statement fore, an during Bontempo in the courtroom. Nor was attorney. defense The trial experienced making into an pressed immediate decision. reopen the case and allow judge’s offer indicated that further lawyer His time to either take the stand or Bontempo make granted if necessary.4 would be The deci was made argument only an risks, tactical one sion a and carried but during charge to the after his outburst clear, even in hindsight, it is not at all Bontempo’s protest jury. It was deciding Bontempo blundered talk to being he was denied a jury’s presence jury. precipitated the trial fair trial which Bontempo gained a number of advan- response. unusual judge’s tages making his statement. gave He record reflects that after an ex for not testifying may excuse have Bontempo and his colloquy, lawyer tended convincing jurors. been to some of the He urging and left judge’s heeded giving the state did so without an opportu- the options to confer on courtroom extend previous record, criminal nity to reveal his Although by the court. defense counsel ed which was one of the strongest matter fac- not offer any said he did advice during that leading to his refusal to take tors the stand. on the desirability conference of Bontem addition, he was able to tell the jury, to the po’s argument option acted in fear of Zelinski and that he had discussed.3 pair for the arranged to take an over- they courtroom, returned to the When dose of Seconal so cousin could summon lawyer announced that Bon- police. not take the stand and tempo would tried to Bontempo play also on the jury’s inquired whether judge wanted by telling them of sympathy family’s say anything suffering get impris- and that he could life replied, “How can something to the guilty. onment if found Most of these mat- jury? lawyer.” I’m not a could not have been presented ters him, sir, reminded “You started to and I jury by lawyer and so Bontempo fared thought stopped you wanted better than most defendants in a criminal your lawyer.... it with to discuss Now case. you.” I’m to foreclose trying disadvantages There were some present By too. during

Counsel was this ex- discussing day the events of the in question, that the change, judge giv- remarked Bontempo Bontempo an admitted that ing participated unusual opportunity and in encouraged kidnapping police him make the at least the of the statement. officers it was repeated Bontempo’s escape. Counsel and the But there could not have make, adding, “He judge] any decision doubt of these been facts. There was [the earlier, Jersey post-convic- exceptions 2254(d) 3. As noted the New ries of in section or “is not did, fairly by tion court the record.” See Sumner v. supported found that dur- defense ing recess, Mata, possibility 539, 764, the discuss the of Bon- 101 U.S. 66 L.Ed.2d 449 tempo giving (1981). an We are unsworn statement. obligated, 2254(d), under § 28 U.S.C. accord presumption of correctness to “a determina- judge Bontempo asked the trial for 4. never hearing tion counsel, after a on the merits of a factual with time his summation to rehearse court,” by issue made unless the deter- a State although that such a re- indicates the record catego- mination one of the within seven falls granted. quest probably been would have experienced not By of misidentifieation. counsel. This is not the case question no of delicatessen, unrepresented in the defendant mentioning presence is called who important invite to make an Bontempo by prose- upon did comment decision with- expert out the benefit of advice.6 failure to discuss critical cutor. The viewed as an cannot be part of the case petitioner We conclude that Bontem- had no oversight. Bontempo difficulty in right to a has not established writ of po remembering other events of the day when and, corpus accordingly, the order of habeas he wished a version favorable to will be vacated. the district court himself. SLOVITER, Judge, dissenting. Circuit jury true the was told that these It is by Bontempo factual statements should not agree majority with the state Nevertheless, as be considered evidence. in proceedings this case were trial “un- obviously wanted them to be re- fact, In that is a “unorthodox.” usual” and and he can by hardly membered Possibly as a understatement. restrained plant permitted that he was complain of the “unusual” nature of the pro- result being without jurors’ in the minds ceedings, ideas precautions usual which have subject to cross-examina- under oath to guarantee evolved a defendant’s consti- his summation was not wholly tion. That were not followed. There- rights tutional the fact that by demonstrated ineffective is fore, the district court that a agree charge on the acquitted him required. trial is new officers, police a count on kidnapping the detailing proceedings of the Without all support evidence to ample there trial, are some of which referred to a conviction. opinion, highlight majority’s sum, persuaded we are not that Bon- Contrary to the prevailing events. salient violation the sixth view, has shown a tempo apparently trial the state decision to address the the- defendant His impression amendment.5 approval of his the witness stand1 with the to take obligation was taken has an permitting given right 1. THE also contends that COURT: There is no God not summation, his own the trial him to Prosecutor has a deliver stand and the to take the ... he was right court “led him into a situation where it. to call for testifying prevented under oath ...” de- from doesn’t have to take the stand. Georgia, spite holding Ferguson in have a We Constitu- COUNSEL:] [TRIAL 756, (1961). 570, 5 L.Ed.2d 783 U.S. 81 S.Ct. Right the stand. not to take tional simply (Pet. 44.) not Brief at This contention says it is not a THE Zicarelli COURT: supported merit. record and has no given right. God only who can rebut a fact is the one notes, aptly dissent the unorthodox 6. As the defendant, ought to take procedure some diffi used at the causes (emphasis held add- the cases have that is how alleged culty categorizing violations in in ed). partial Although finds a this case. the dissent expressed by the trial court is at The view deprivation summa of counsel expressed the view the Su- variance with to, tion, really supplemental his remarks were States, preme v. United in Hoffman of, closing to and not counsel’s in lieu retained 819, 814, 95 L.Ed. U.S. 71 S.Ct. here, it is not In the circumstances potential (1951), evils of “The immediate Bontempo’s actions amounted to a clear that compulsory diffi- transcend self-disclosure “partial But waiver to counsel.” of his may privilege exercise of culties that the such, cases on direct even if it be considered appeal prosecu- society impose in the detection Welty, 674 F.2d such as United States case to which The Zicarelli tion crime.” controlling (3d Cir.1982), this are apparently Zicarelli v. trial court referred where collateral state conviction attack on a Investigation, 406 Jersey of Comm’n New State petitioner a constitutional the must establish (1972), L.Ed.2d 234 U.S. 92 S.Ct. Moreover, situation is violation. the factual testimony compulsory upheld the where represented quite different. use statutory and derivative use in return for choice, throughout by unlike of his support trial court’s immunity. the It does just Welty discharged appointed counsel who obligation give to has a defendant view that testimony began of confidence before of lack trial immunity. of such absence in the ability. in his invited him to do so. Defendant proceedings and de- recessed so defendant could clined, indicating recognized that he that if with his confer counsel. gave up right constitutional to re- post-conviction At the hearing, defend- silent, main the could cross-ex- trial counsel testified during ant’s the on matters amine him which otherwise he never “advised” recess defendant on the Following de- would not be admissible. closing idea of an unsworn statement or at the conclusion of the

fendant’s outburst that the conference argument, and focused trial, court, sponte, the sua offered to to judge’s on reference the possibility of to opportunity “make as defendant stand, taking reopening and many speeches you as want to the if jury calling witnesses. When they to returned you appar- elect so.” The trial court to do courtroom, trial counsel reported to ently jury speech regarded conjointly this court that he advised defendant not to take with to defendant tak- or as an alternative stand, and asked the court question to The court ing the witness stand. stated to option defendant once again. defendant: declined, Again defendant and the court Now, Bontempo, Mr. of you course its offer to repeated defendant to heard, have a be and I am right going to Defendant speak hesitated at you to hear can make as you, many and “opportunity” this until his trial counsel speeches you jury you want to the if Judge giving you told him an un- “[t]he elect to do so. opportunity.” usual The judge assured the My Friday recollection is I specifically would defendant his statement not be testi- presence you your asked in the of attor- monial, stating jury every- “I’ll tell ney take the stand. you if wanted to they thing you say believe, don’t have to did you You indicated that not. because it won’t be under Having oath.” question I suppose my further should thus been alternately invited en- and/or been, and I’ve asked this have of several couraged, delivered to the jury defendants, you yourself do want to say rambling pro amalga- se statement which anything you which have a argument and during mated evidence right say? to which defendant made some significant ad- you to let going say I am you whatever missions. so, want to to the jury, you but before do statement, After the defendant’s thought I you courtesy owed to first prosecutor addressed the jury repeated- you all discuss what want to say with ly vigorously upon commented gaps your to attorney, you indicate him what and the omissions defendant’s get it, want his best say, to advice on prosecutor, asking statement. series first, you say if to to me want so that told the questions, rhetorical my can advice you the benefit subject was ‘‘not to defendant’s statement it, you may. “[tjhese and that are all cross examination” hand, On the you other if say want to have questions which could been but were you say whatever want to without dis- commenting In addition to not answered.” cussing you anybody, it with have a episodes on the to which defendant had it. statement, in his se alluded the prosecu- toup you, That is sir. tor hammered away at defendant’s failure I am not trying you foreclose from to discuss events the grocery store being just heard. you felt that owed it committed, telling where the murder yourself your and to own case dis- opportuni- had his jury, “Mr. cuss it your attorney. speak you. you He never told ty what After some colloquy between the defendant went on there. Mr. victim], Sena [the and the judge, during the judge on have an to tell opportunity doesn’t ” several reopen occasions offered case he’s dead.... what went on there because so that defendant could take the Notwithstanding these added). (emphasis

963 remarks, judge give any prosecutor failed to permitted the trial to respond by precautionary jury instructions to the re- commenting that such “testimony” had not garding prosecutor’s the comments with re- given been oath and was therefore gard to defendant’s failure to deny material weighty less than testimony. sworn United facts. Follette, rel. Miller v. States ex 278 F.Supp. 1003, 1007 (E.D.N.Y.), other notes, theory, aff’d on majority

As the the district court (2d 363 Cir.1968)(prosecutor found that defendant’s 397 Fifth and Sixth F.2d mere defendant), were rights Amendment fact by ly repeated already violated these emphasized by “unusual” proceedings. arguing ap- denied, 1039, t. 393 U.S. 89 cer court peal correctly that the district held 660, 21 L.Ed.2d (1969). S.Ct. 585 In this rights that Fifth Amendment defendant’s prosecutor’s the comments on Bontem violated, were claims this case defendant po’s failure discuss the events in the presents for the “a state.” He catch-22 grocery store went far the beyond facts to argues, remarks are “If the [defendant’s] pro referred in his se sum thereby permitting rebuttal ‘testimony’, beyond mation and far the comments made as if had from the prosecution Miller case. the None subject provided under oath and evidence theless, I agree with the district cross-examination, then the defendant had defendant’s court Sixth Amendment right a to have in- constitutional the violated, rights were not need reach the remarks were to be con- structed that his holding prosecutor’s district court’s that the Instead, (and sidered as evidence. the rebuttal to defendant’s statement constitut defendant) specifically instructed ed comment on his failure impermissible remarks the court that were not evi- California, Griffin v. testify under 380 U.S. hand, other dence. ... On the if defend- 609, 1229, 85 14 (1965). S.Ct. L.Ed.2d 106 ant’s to use trial ‘closing argument’, begin Sixth Amendment considera judge’s nothing ... was characterization by reviewing tion several well-established more pro than a summation which could se a A defendant has constitution principles. evidence, properly be considered stage al counsel at each critical right to prosecutor’s comments defendant’s See United States proceeding. v. silence the Fifth violated Amendment as Wade, 218, 226-27, 1926, 388 U.S. 87 S.Ct. applied to the states Griffin v. Califor- 1931-32, 18 nia, (1967); L.Ed.2d 1149 see 609, 1229, 85 also U.S. S.Ct. 14 L.Ed.2d [380 Hamlin, 25, 92 v. (1965)].” Argersinger 106 407 Bontempo’s U.S. S.Ct. brief at 23-24 2006, L.Ed.2d (emphasis original). (1972); in 32 530 Gideon con- v. majority’s 335, 792, clusion on this issue is that 372 per- Wainwright, it is “not U.S. 83 S.Ct. 9 prosecution suaded that ... (1963). did com- L.Ed.2d Argument 799 ment on failure to testify”, but of the trial is such at the conclusion did prosecutor’s even if the remarks stage. A criminal defendant also “critical” comment on the constitute failure to take conduct right to his or has a constitutional this was not constitutional vio- California, her own self-defense. Faretta lation because had already drawn 806, 95 S.Ct. 45 L.Ed.2d U.S. to the fact jury’s attention (1975). Before a judge may honor a de not testified. decision proceed by fendant’s self-repre sentation, must ascertain whether Admittedly, generis the sui nature of the knowingly the defendant has and intelli proceedings makes it to find difficult gently relinquish elected the benefits of analytic mold for Fifth pur Amendment Zerbst, counsel. See Johnson U.S. poses. I find it regrettable both trou 1019, 1023, 464-65, L.Ed. majority blesome that adopt does not requirement (1938). simi approach used in a well-reasoned be made by Judge “knowingly lar situation held waiver must and intel Weinstein who since inheres in the testimony ligently” there was unsworn constitutional defendant, se applicable summation of the It to counsel. therefore trials as well state criminal as federal crimi- The polestar on waiver pro- of counsel is California, Faretta v. supra. nal trials. See by California, vided Faretta v. where the held that before a waiver of counsel majority The resolves the contention that accepted, can be defendant must be rights defendant’s Sixth Amendment were of dangers “made aware and disadvan- noting by violated “rep- so that tages self-representation, the rec- before, during resented and after his state- ‘he knows what he ord will establish an experienced ment defense' attorney”, choice doing and his is made with eyes 960; majority op. “Bontempo’s at ” 835, at at open.’ 422 U.S. decision only was reached after he had “dangers In this case and disadvantages counsel”, 960; consulted with id. at self-representation” as to the summation decision to address the “[h]is exceptional. Defendant, lay were person taken with the approval experienced of his legal no background experience or suf- counsel,” id. at 961. fering apparent from an medical history majority The characterizes the unusual memory wound, loss due to an earlier bullet by Bontempo statement to the jury pro as a undertook address the jury without agree. such, and I As se summation it must preparation and to make incriminating be treated as a waiver of counsel for that the guiding statements without hand of portion of the proceedings. critical have been might counsel who able either to trial fact that counsel handled away precipices shift him from the or to aspects of the trial including all of the other ameliorating elicit some circumstances. the fact a summation does not alter that a absolutely There is no evidence in the rec- was delivered second summation Bon ord to show defendant was ever ad- tempo lawyer. pro rather than his This se experienced vised his counsel that regarded summation can be as nothing less there were serious risks to defendant partial than a waiver of counsel. A partial summation; undertaking pro his se there is may waiver of no less counsel be hazardous in the record that his no evidence waiver of than a full counsel. In this to proceed pro him as to how in a advised se pro se example, provided for summation away or to steer from comments summation opportunity speak the last to the jury on nature and to of a testimonial limit himself behalf of the defendant. What defendant admitted; already to the evidence during said and did that summation not there is no evidence in the record to show may only jury’s have influenced the view of defendant informed that if he under- but, majority concludes, the case took a se summation which included opened prosecutor’s the door for the subse testimony, some would be comments on the factual quent omissions in only able to comment not on what he did defendant’s statement. In considering a say but on what he did not say. counsel, we partial waiver of must make the same into whether the inquiry defend majority apparently believes that the waiver of counsel was ant’s made knowing mere the state court found fact that “that ly intelligently as we would in a did, full during recess, defense counsel dis- waiver courts considering “hy case. Other possibility of Bontempo giving cuss brid” where a criminal arrangements de unsworn statement” showed satisfaction of fendant some or all of majority op. has conducted the Faretta standard. See validity own that the finding defense have also held Even if the of such at 960 n. 3. partial depends supported by waiver whether “fairly a discussion intelligently knowingly record”, 2254(d), defendant which I U.S.C. § waived rights. United States question, majority point nothing See can Kimmel, (9th Cir.1982); record, 672 F.2d nothing, because there is to show United King, (4th States v. 582 F.2d 888 that the discussion was more than anything Cir.1978); Maynard Meachum, 545 F.2d to the trial passing reference court’s offer (1st Cir.1976). to address the to defendant of counsel’s discus- tion Because the substance was not the result of your advice. is crucial to defend- sion with Did extemporaneous discuss an un- argument, I set ant’s constitutional forth sworn statement with him at all in an of the relevant testimony here some of trial attempt prepare him to make such a hearing post-conviction counsel in the state statement? point: on this A. No. Well, any interruption at Counsel:] [Trial Q. statement, gather— which I individual, Judges of a are and in trial — which he the statement did make to the court the Judge Fusco’s defendant was then, being was heard by you for the speak through told to either counsel or to first time? that under the keep quiet. He told was A. Yes. he a interrupted per- cases if trial and % sjc :{c % sf: sfc sists, sanctions, are certain' there and in case, particular appeared this it to me Q. Okay. you Are testifying that into a got colloquy that the Court this, despite the fact that Judge Fusco the defendant. It appeared though as out to option you you laid this told led believe you recess, discuss it when took that that a he could statement of an unsworn statement or a closing idea jury. argument was never discussed? Q. you I asked before whether I can’t that A. it was never dis- your was advice? statement made him on cussed. I never advised it. What No, con- A. no it was not. I couldn’t was it general I him that was a did advise fact, a matter of template even when —as as the opening statement that so far the word state- Judge Fusco mentioned concerned, opened. I had So far as the ment, would be an un- that a statement concerned, closing I had closed. So think, I and this is sworn statement. taking far as his the stand or calling recollection, that I told Mr. witnesses, being he was afforded an at- statement, a that if he elected to make tempt. exposure I went over what putting jeop- that he would be himself in cross-examination, and to the would be to he put He said didn’t want ardy. of the record against admittance him. I jeopardy. himself in remember every can’t word that was said. subject I told him that he would be that we went back into the do believe whatever occurred cross-examination and courtroom, the trial and then resumed. obligation to my to me at the time was So, testimony that Q. your you is it advise him as to the law. The question of with him giving discussed a may have statement, an unsworn that was never closing statement to the jury? apparently consulted about. The idea discuss it with A. I didn’t him in the Judge, who had at originated with the advising him. sense point charge this trial. took not Q. my question. That’s I’m sorry. is was the question issue My discussed may record, for the If indicated [A.] giving closing him a statement? then, and I that I did know don’t A. No. Not in fashion. despite happened think even now what might happened have this trial what any Judge Appellate Division So, Q. didn’t you discuss the idea of a right any has to have witness closing statement giving him defendant, make an let alone the didn’t think the Court you unsworn to a statement it? would permit

s(c sic sfc think really A. I didn’t have al- Q. Judge opening Trial mentioned the issue. The [To Counsel:] [Y]ou reac- in other ready this he had done testified that of what statements trials, permitted this to this de- monished that light “in of the strong pre- mentioned the closing He state- sumption against fendant. waiver of the constitu- statements. He counsel, ments and additional must tional inves- defendant, this to the permitted long and as as tigate thoroughly possibility of reopening mentioned of the case circumstances before him de- case, taking and calling (footnote omitted). In our mand” recent witnesses. in United Welty, decision States v. 674 F.2d (3d Cir.1982), 188-89 we held that obligation (in of the trial court that case Q. just remember before he you Do court) the district is to ensure discussing gave the statement decision the defendant represent to him- him, on the record there was a or intelligently self was made and competent- do, going he was what discussion about that, We stated “It is ly. vital to Mr. you and said can you particular court take pains district in dis- jury, Judge given has you talk to charging its responsibility to conduct these opportunity. point, an unusual At that concerning substitution of inquiries going knew that you give waiver of Perfunctory and counsel. ques- jury, you did not? statement to the tioning is not sufficient.” Id. at 187. going I he was to talk to the A. knew Other federal courts pictured being considering I him able waiver jury, but never oath, context of a corpus to the not under and I of counsel habeas talk can’t made clear that a thought picture though proceeding ... I still it have state permitting judge required is to talk to the happened, it a defendant after defend the record to determine whether close a case ant on Court closes—after knowing compe is jury. to address a waiver of counsel Wainwright, 665 Brown v. F.2d tent. See Q. So, thought that he you going Cir.1982) (en 607, banc); id. (5th 611-12 at testify point? at that J., (Hatchett, dissenting); 615 Badger v. thought get I that he would up A. Cardwell, 968, 587 (9th F.2d 972 n. 3 Cir. tell him would have to Court will 919, 1978); Wainwright, 526 Ford F.2d sworn, say if he wanted to be and that Cir.1976); Cox, Shawan v. (5th 921-22 350 it jury, to the would have anything to be Cir.1965); 909, (10th Hall v. 912 Dor F.2d the witness and from box. oath 507, 4 (E.D.Pa. 508-09 n. F.Supp. 534 sey, Q. said to him the you Even when Wyrick, 921, 433 1982); F.Supp. Martin v. going you to let talk Judge is to the jury, rev’d on other (W.D.Mo.1977), 927-29 you an unusual given opportunity? he’s (8th Cir.), F.2d 583 cert. grounds, 568 de right. That’s A. 975, nied, 1623, 435 U.S. S.Ct. 56 L.Ed.2d that counsel never apparent It is advised Maynard Meachum, (1978). But see “dangers the defendant and disad- 277. 545 F.2d at vantages” summation, of a se following this case In constitutes the contemplate counsel did not that such a colloquy total of the relevant between de- procedure permitted. would be Even if and the trial after the recess fendant the possibility counsel had mentioned Bontempo conferred with his law- at which recess, during the would fall yer: imparting far short information Bontempo, you Mr. still THE COURT: knowing intelligent waiv- needed for a the stand if you to take have er. to, sir. wish Furthermore, the obligation to ascertain can’t take it THE DEFENDANT: there has whether been a in- knowing and my doctors. without is that telligent waiver of the trial court. to take the you Do want THE Gillies, COURT: Von Moltke v. U.S. 723- stand, sir? 316, 323, (1948) 92 L.Ed. 309 No, (plurality opinion), Supreme ad- I can’t. THE DEFENDANT: you say THE Do want to any- COURT: failure to warn defendant if his re- thing jury? to this upon evidence, marks touched prosecu- respond tor could testimony THE How can I say DEFENDANT: also could comment on his failure to something jury? to the I’m not a discuss lawyer. other events fell far short of meeting the THE I’ll let you say you COURT: start- — obligation imposed on trial courts. It fell to, sir, you ed and I because I stopped far short of the warnings advice and given thought wanted to discuss it with you by other trial courts in somewhat analogous your lawyer. trying Now I’m not to fore- Thus, in United situations. for example, close you. Everybody right. has a ex States rel. Miller v. Follette, the defend- It is freedom that your is at stake. explicit ant had received “an warning not something If want to testify or comment on matters not in permit so, I will you to do sir. F.Supp. at Judge evidence.” You can talk [Trial Counsel:] Weinstein reasoned that a defendant would The Judge giving you an unusual op- adequately protected be by “a clear and portunity. warning by direct the court that such limit- THE know, DEFENDANT: know. ed comment [by on the un- trying I’m to think. sworn ‘testimony’] might follow if he con- your But it is decision to [Trial Counsel:] tinued to what amounted to unsworn make. Id. at 1007. In United States testimony.” give you He will time to think. King, 582 F.2d at the trial judge had give you He will an opportunity. “engaged in a lengthy colloquy King with I know, THE DEFENDANT: try- am attempt in an dissuade him from self- ing to think. representation.” In this there was no Yeah, right, all I’ll talk Yes, to them. dissuasion, but appears what instead to your Honor. encouragement. have been Defendant be- gan rambling his untutored THE COURT: Pardon me? summation to jury saying “I feel like a yo-yo” and Yes, THE DEFENDANT: I’ll talk to ending it with saying “Go ahead. Sink me. them. go can home dead now.” THE COURT: You want to talk to the jury? agree with the following analysis by Sarokin, Judge the district judge who held THE DEFENDANT: Yes. the habeas corpus writ should issue: THE COURT: You realize the Prosecutor One wonders what would have motivat- will opportunity have an to answer what ed court not only permit say? have to by petitioner, summation but to encour- THE DEFENDANT: go Can he first? age clearly it. It was an invitation to the go THE COURT: You first. petitioner bury competent himself. No THE go DEFENDANT: Let him first. closing ever make argu- counsel would THE go You first. I’ll tell the COURT: case, no less a ment to a in everything you say they don’t trial, long thorough murder without have to it won’t be believe because preparation. How or why court oath. tell the That’s what I’ll encouraged a would have defendant with right, THE DEFENDANT: All yeah, intelligence limited and illness to ren- what the hell. What got have I to lose? closing unprepared argument der an THE right, bring COURT: All beyond with counsel is without review jury, please. comprehension. help One cannot wonder The trial court’s failure the offer petitioner whether made to any guidance regard subjects rights to advance his or made to defeat may legitimately be discussed them. hand which the court helping summation, inquire failure whether such purportedly extending peti- guidance counsel, provided had been tioner, reality held a noose. argument

It is no the court

merely petitioner’s honored the request.

The court exists to protect the constitu- rights appear

tional of those who before quest,

it. We all err in that but particular

active role of the in this court

deprivation rights grant- mandates the

ing (footnote omitted). of the petition foregoing reasons,

For the I respectfully judgment

dissent and would affirm the court. district

Margaret DEANS, Appellant, Ann O’DONNELL, Trustee, Appellee.

Gerald Margaret

In re Ann DEANS.

No. 81-2153. Smith, Kenneth Alexandria, Warren Va. United States Court of Appeals, (Smith, Gold, Alexandria, Va., Butt & Fourth Circuit. brief), appellant. for Argued June 1982. O’Donnell, M. Gerald se. Sept. Decided WINTER, Before Chief Judge, PHILLIPS and MURNAGHAN, Circuit Judges. PHILLIPS,

JAMES DICKSON Circuit Judge:

Margaret Ann appeals Deans a district affirming a bankruptcy court order court’s Chapter refusal to confirm her 13 bankrupt- cy rejected plan. plan Deans’ “proposed found not in good faith” as re- quired by 11 1325(a)(3), U.S.C. finding § upon based the view of the courts below any plan, Deans’, such as that provides no meaningful” “substantial repay- ments to the debtor’s unsecured creditors qualify 1325(a)(3). cannot Deans § O'Donnell, (D.C.E.D.Va.1981). 14 B.R. 997 misconstrues statuto- Because this view we vacate ry good requirement, faith plan. of Deans’ remand for reconsideration

Case Details

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

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 10, 1982

Citation: 692 F.2d 954

Docket Number: 81-3016

Court Abbreviation: 3rd Cir.