Bontempo v. Fenton
| Decision Date | 10 December 1982 |
| Docket Number | No. 81-3016,81-3016 |
| Citation | 692 F.2d 954 |
| Parties | Joseph BONTEMPO, Appellee, v. Peter FENTON, Warden, Rahway State Penitentiary, and James R. Zazzali, Attorney General of the State of New Jersey, Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
Hillary L. Brunell (argued), Asst. Prosecutor, Irwin I. Kimmelman, Atty. Gen. of
New Jersey, George L. Schneider, Essex County Prosecutor, Newark, N.J., for appellants.
Roger A. Lowenstein (argued), Philip Rosenbach, Lowenstein, Sandler, Brochin, Kohl, Fisher & Boylan, P.C., Roseland, N.J., for appellee.
Before GIBBONS, WEIS and SLOVITER, Circuit Judges.
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. Sec. 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, Before the jury could be removed, Bontempo stated, After the jury left the room, he continued,
The trial judge told Bontempo, 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, This colloquy followed:
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.
The prosecutor also remarked that Defense counsel did not object to any part of the prosecution's rebuttal.
The trial...
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