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United States v. Mulligan

filed: November 5, 1976.

UNITED STATES OF AMERICA EX REL. ANDREW PERRY, PETITIONER-RESPONDENT
v.
WILLIAM F. MULLIGAN, CHIEF PROBATION OFFICER FOR ESSEX COUNTY, NEW JERSEY RESPONDENT-APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 75-79)

Author: Weis

Before: VAN DUSEN, HUNTER and WEIS, Circuit Judges.

WEIS, Circuit Judge.

Protesting that the prosecutor's remarks in summation were improper and that a purported apology merely added insult to constitutional injury, the petitioner convinced the district court to grant a writ of habeas corpus. After a review of the record, we conclude that the state courts which affirmed petitioner's conviction for attempted extortion properly applied appropriate constitutional standards. Accordingly, we vacate the order of the district court.

Petitioner Perry, a police officer in Newark, New Jersey, arrested one Willie Lee Jones for possession of narcotics, a charge for which he was eventually convicted in the state court. Officer Perry testified at both a suppression hearing and Jones' trial. After the verdict but before completion of the presentence report, Jones met with Perry. Both the purpose of the encounter and the responsibility for arranging it were sharply disputed. Jones contended that for $1,000 Perry offered to submit favorable comments to the presentence investigator. The officer's version was that Jones asked for his help in preparation of the report, and, sensing an opportunity to secure information on other narcotic offenders, Perry arranged for a subsequent meeting.

Jones reported the alleged bribe solicitation to the county prosecutor and agreed to attend the planned meeting at a neighborhood bar. In preparation for the rendezvous, the prosecutor supplied Jones with $300 in marked money, concealed a tape recorder on his person, and stationed detectives inside the bar. Shortly after the hour set, Perry entered the bar and began a conversation with Jones. The detectives observed Perry display his completed presentence report form to Jones. Only one of them was able to overhear any part of the conversation and that was limited to Jones saying, "... $300...," and Perry replying, "ah ah." Perry and Jones then went to the men's room, but, before anything further transpired, a detective rushed in and arrested Perry. Jones still had all the marked money in his possession.

The body recorder failed to produce an audible tape, and Perry's trial for attempted extortion evolved essentially into a credibility contest between the police officer and the convicted drug dealer.

The first witness called by the prosecution was Richard J. Pavia, one of the investigators who participated in the surveillance at the neighborhood tavern. During the course of his direct testimony, he denied having any conversations with Perry after the arrest, and attempts by the prosecutor to have the witness refresh his recollection by reading the investigative report were thwarted by defense objections. Cross-examination began after a short recess and, in the course of answering defense counsel's questions, Pavia changed his original testimony by admitting that he spoke with the defendant after the arrest. The witness explained that he had talked to the prosecutor during the recess and realized he had misunderstood the questions on direct examination.

Neither party inquired at that time about the content of the conversation. However, at a later stage of the trial, the defense recalled Pavia, who, after admitting that he had summarized the defendant's conversation in the investigative report, read that portion to the jurors. It was a denial of any wrongdoing, and, in essence, an assertion by the defendant that he had been "set up" by Jones.

In his summation to the jury, defense counsel commented on this incident and said in part:

"[He] [Pavia] said I never had any conversations with Officer Perry and then later, after we had a break, and I say this with all due respect to the Prosecutor, I'm not trying to make any accusation against him. Tony Mautone [the prosecutor] is a nice kid and is trying the case to the best of his ability. But, you will recall that we had a break and then Pavia went back on to the stand and then Pavia qualified his answer that he never had any conversations with Perry and said, 'Oh, I thought you meant at the bar,' but I didn't, but he said he did have a conversation with him in his office, period. Nothing further was said about what that conversation contained or what that conversation related to. Pavia left the stand. Mr. Mautone didn't try to bring out the conversation. I didn't know anything about the conversation. I didn't believe he had any conversation and that's why I rested there until later on in the case when I asked to see the report and there was some argument and I said, call Mr. Pavia back and let's hear from him forgetting about the report and Mr. Pavia was called back and then for the first time in this case, after Mr. Mautone said I have nothing to hide, then for the first time we learn that Mr. Pavia in his report had recorded a conversation that he had with Officer Perry and then for the first time we learned what that conversation between Pavia and Perry was and that it was almost identical with the testimony that Perry had given from that stand both on direct and on cross-examination. Something to consider, isn't it. And, while we are on the line of we have nothing to hide, I have nothing to hide, let me not forget and call your attention to this report, its' [sic] in evidence and you'll get it, and of course, you have read it and you'll have it to read again."

Defense counsel thus left a strong implication that witness Pavia had been "coached" by the prosecutor during the recess before cross-examination began.

In his summation, the prosecutor alluded to the defense comments and began a rather lengthy discussion of the incident by saying, "But Mr. Maurer in the course of his summation tells you that when Inspector Pavia came back he spit out the words that I told him to and that he and I corrected everything." The prosecutor admitted that he had spoken to the witness during the recess. He commented on the sequestration of the state's witnesses and said:

"But, remember one thing, remember the one man who sits here and listens to everything that everybody says, remember the one man who sits here and listens to everything that every single person, every single word said by every single state witness before he even had to open up his mouth, which he knew he had to do. But the one man who hears everything that every witness produced by the State says is this defendant, every defendant does, the defendant hears it all. The defendant sits right there at the counsel table as does his lawyer and make no mistake about it, I have no objection to Mr. Maurer counseling his witness, his defendant. That's his obligation to ...


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