United States ex rel. Mitchell v. Pinto, 17359.

• Decision Date: 03 February 1971
• Docket Number: No. 17359.,17359.
• Parties: UNITED STATES of America ex rel. Esaw MITCHELL, #42060, Appellant, v. Warren PINTO, Superintendent, New Jersey State Prison Farm, Rahway, New Jersey.
• Court: U.S. Court of Appeals — Third Circuit

438 F.2d 814 (1971)

UNITED STATES of America ex rel. Esaw MITCHELL, #42060, Appellant, v. Warren PINTO, Superintendent, New Jersey State Prison Farm, Rahway, New Jersey.

No. 17359.

United States Court of Appeals, Third Circuit.

Submitted on Briefs September 22, 1969.

Rehearing October 13, 1970.

Decided February 3, 1971.

Certiorari Denied May 3, 1971.

Marilyn Mauskopf, Pepper, Hamilton & Scheetz, Philadelphia, Pa. (John G. Harkins, Jr., Philadelphia, Pa., on the brief), for appellant.

John P. Jehl, Assistant Prosecutor, Camden, N. J. (A. Donald Bigley, Camden County Prosecutor, Camden, N. J., on the brief), for appellee.

Before HASTIE, Chief Judge, and McLAUGHLIN and VAN DUSEN, Circuit Judges.

Before HASTIE, Chief Judge, and McLAUGHLIN, FREEDMAN, SEITZ, VAN DUSEN, ALDISERT, ADAMS and GIBBONS, Circuit Judges.

Rehearing En Banc October 13, 1970.

Certiorari Denied May 3, 1971. See 91 S.Ct. 1622.

Submitted on briefs Sept. 22, 1969.

Before HASTIE, Chief Judge, and McLAUGHLIN and VAN DUSEN, Circuit Judges.

Rehearing en banc Oct. 13, 1970.

Before HASTIE, Chief Judge, and McLAUGHLIN, FREEDMAN, SEITZ, VAN DUSEN, ALDISERT, ADAMS and GIBBONS, Circuit Judges.

OPINION OF THE COURT

HASTIE, Chief Judge.

The district court denied relief to the appellant, a state prisoner serving a sentence under a New Jersey rape conviction, who sought a writ of habeas corpus on the ground that at his trial his failure to testify had been used against him in violation of his privilege against self-incrimination. Both the prosecutor and the trial judge had told the jury that the failure of the accused to testify might be used as evidence against him.

In 1965, the Supreme Court held that "the Fifth Amendment * * * forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106. The Appellant's conviction occurred on June 15, 1964, but the case was still pending in the New Jersey courts on direct appeal in 1966. This chronology impels us to consider preliminarily whether the rule of the Griffin case applies to this case.

Tehan v. Shott, 1966, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, holds that the Griffin rule does not control cases in which conviction had become final before the Griffin decision. But at the same time a situation indistinguishable from the present case was before the Court in O'Connor v. Ohio, 1965, 382 U.S. 286, 86 S.Ct. 445, 15 L.Ed.2d 337 and was remanded for reconsideration in the light of Griffin. Later, O'Connor's case was reviewed again, 1966, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189, and the Court made explicit the reach of Griffin, saying:

"It is clear the prospective application of that Griffin rule, announced in Tehan v. Shott, 382 U.S. 406 86 S. Ct. 459, 15 L.Ed.2d 453, does not prevent petitioner from relying on Griffin, since his conviction was not final when the decision in Griffin was rendered. Indeed, in Tehan we cited our remand of petitioner\'s O\'Connor\'s case as evidence that Griffin applied to all convictions which had not become final on the date of the Griffin judgment. 382 U.S., at 409, n. 3, 86 S.Ct. 459, at 461." 385 U.S. at 93, 87 S. Ct. at 253.

To the same effect, in Johnson v. New Jersey, 1966, 384 U.S. 719, 732, 86 S.Ct. 1772, 16 L.Ed.2d 882, the Court said:

"Decisions prior to * * * Tehan had already established without discussion that * * * Griffin applied to cases still on direct appeal at the time it was announced. See * * * 382 U.S., at 409, n. 3, 86 S.Ct. 459, at 461."

Thus, the 1965 constitutional pronouncement in Griffin is applicable to Mitchell's conviction which did not become final until 1966.

Indeed, in the unreported decision of the New Jersey Superior Court, Appellate Division, sustaining Mitchell's conviction, the court recognized that the Griffin rule was applicable. Accord, State v. Lanzo, 1965, 44 N.J. 560, 210 A.2d 613. The conviction was sustained on the theory, to be discussed later in this opinion, that Mitchell had waived his privilege against self-incrimination.

We now consider whether the conduct of the judge and the prosecutor at appellant's trial was inconsistent with the Griffin rule. At that time the law of New Jersey permitted such comment and such a charge as the Griffin decision was soon to proscribe. Accordingly, in his argument to the jury defense counsel anticipated unfavorable comment by the prosecutor and in the judge's charge upon his client's failure to testify. He told the jury that it was on his advice that the accused had elected not to testify and argued that no unfavorable inference should be drawn from that circumstance. His anticipation was well founded, for in his summation the prosecutor told the jury: "you are entitled also under the law of this state to consider if you desire, that Esaw Mitchell's failure to take the stand was because he couldn't deny the incriminatory evidence proved against him. * * *" Thereafter, the court charged the jury that "* * * by his silence the jury may infer that he the accused could not truthfully deny the charge." Thus, both the judge and the prosecutor did precisely what the Griffin decision holds they may not do without prejudicial violation of a fundamental constitutional privilege of the accused. However, the appellee attempts to avoid this conclusion by arguing that the conduct of the accused and his counsel during the course of the trial should be given effect as a waiver of his privilege against self-incrimination.

In Caminetti v. United States, 1917, 242 U.S. 470, 494-495, 37 S.Ct. 192, 61 L.Ed. 442, the Supreme Court held that when an accused takes the stand and testifies to refute part of the proof against him, his silence with regard to other damaging evidence as to matters within his knowledge is subject to adverse comment. In the present case, Mitchell neither testified nor called any witness. However, at the request of his counsel during cross-examination of a witness called by a co-defendant, Mitchell rose and stood before the jury next to the witness, who himself had previously been convicted as a participant in the crime of which defendant was now accused, to demonstrate a resemblance. The appellee characterizes this participation in a demonstration as a "testimonial act," equivalent to the defendant's verbal testimony in the Caminetti case. It is argued that this demonstration is like testimony in that it was intended to refute the state's evidence against the accused. But all relevant evidence introduced by the defense, whether demonstrative or verbal, is at least intended to refute the state's proof. This common purpose does not justify characterizing a physical demonstration as "testimonial." Moreover, technically Mitchell rested without offering any evidence whatever. The demonstration in question occurred during cross examination of a witness called by another party.

In applying the Self-Incrimination Clause of the Fifth Amendment, the Supreme Court has recognized a controlling distinction between real or physical evidence obtained from a defendant's person and that which is testimonial. The Court has upheld action by the state compelling an accused to submit to blood tests, Schmerber v. California, 1966, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; to try on clothing, Holt v. United States, 1910, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, and to exhibit his person for observation, United States v. Wade, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. In addition, the Court has cited with approval cases holding that the privilege against self-incrimination "offers no protection against compulsion to submit to fingerprinting, photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." United States v. Wade, supra, at 223, 87 S.Ct. at 1930, quoting from Schmerber v. California, supra, 384 U.S. at 764, 86 S.Ct. at 1826. In the present case, the prosecution would clearly have had the right, if it so desired, to require Mitchell to rise from his seat and stand next to the witness then under cross-examination for comparison by the jury. The Self-Incrimination Clause would not have precluded such compulsion precisely because the evidence compelled was not testimonial or communicative. By the same token, voluntary participation by a defendant in such non-testimonial conduct cannot properly be analogized to such testifying as occurred in the Caminetti case.

In State v. Fioravanti, 1965, 46 N.J. 109, 215 A.2d 16, the Supreme Court of New Jersey reasoned that by engaging in a courtroom demonstration an accused implicitly asserts that such variable conditions as height, weight, and hair style have not changed since the date of the crime. But the jury may find the demonstration probative without any such assurance from the demonstrator. Moreover, if an accused, by merely engaging in a courtroom demonstration, is said to testify that his appearance has remained unchanged, then he is likewise forced to testify concerning the constancy of his appearance when he is compelled by the state to make such a demonstration. But such is not the case. SeeWade, Schmerber, Holt, supra. The defendant does not testify in either situation. The constancy of his appearance is an inference which the jury may or may not draw from the introduction of the physical evidence itself and is as readily drawn when the presentation of this evidence is by the prosecution as when it is by the defense. In addition, this inference can be rebutted specifically by evidence of a change in the defendant's appearance or by argument during summation.¹ In no case should it be given effect as opening the door for a general instruction making the defendant's failure to testify evidence of guilt.

It must be recognized that the foregoing analysis and the conclusion to...