This is a post-conviction relief proceeding instituted pursuant to R. 3:22-1. Following a protracted jury trial, defendant was convicted of conspiracy, first degree murder while armed, entry with intent to steal, armed robbery, possession of a weapon and escape. The Appellate Division affirmed defendant's convictions in a per curiam opinion, and a petition for certification was subsequently denied by our Supreme Court.
At trial defendant, who did not testify, was permitted to make an unsworn statement to the jury following summations by his attorney and the prosecutor. In his statement defendant alluded to what he perceived to be weaknesses in the State's case. Thereafter the prosecutor was afforded the opportunity to respond. In so doing the prosecutor made repeated references to defendant's failure to specifically deny the charges set forth in the indictment. The prosecutor also noted that defendant's statement was not made under oath and was thus incredible.
In his petition for post-conviction relief defendant contends that the prosecutor's comments constituted a violation of his Fifth Amendment privilege against self-incrimination. He further argues that the "hybrid" procedure adopted by the trial judge deprived him of his right to counsel afforded by the Sixth Amendment. Defendant also contends that the conviction for conspiracy and first degree murder merge and that the trial judge erred when he imposed consecutive sentences with respect to these crimes. Finally, defendant argues that his conviction for escape must be set aside because it was not supported by sufficient evidence.
At issue is whether the prosecutor's allusion to defendant's failure to specifically deny his complicity in the crimes charged requires vacation of the judgments of conviction and a new trial. Other questions raised pertain to whether defendant's conviction for murder and conspiracy merge and whether sufficient evidence was presented to support the jury's finding of guilt with respect to the charge of escape.
The charges against defendant emanated out of the murder of a grocery store owner during the course of a robbery, followed by the apprehension of Bontempo and his codefendant, Joseph Zelinski, and their subsequent escape in a commandeered police vehicle.*fn1 Defendant's case was severed for the purpose of trial. Following defendant's conviction the trial judge imposed sentences aggregating life imprisonment plus six years in State Prison.*fn2
The evidence presented by the State at trial was substantial. Sometime prior to 6 p.m. on April 7, 1974 Nicholas Sena was shot and killed in his grocery store during the course of an apparent robbery. Although there were no eye-witnesses to the homicide, two police officers observed defendant changing his clothes near the scene of the shooting. Upon noticing the presence of the two uniformed patrolmen who had approached in a marked police vehicle, defendant took flight. As the
officers pursued defendant they observed him dropping money from his pants pockets. Additionally, a wallet belonging to decedent was subsequently discovered near the area in which defendant had initially been observed. Other clothing and a revolver, apparently not the murder weapon, were also recovered nearby.
Defendant attempted to elude the police officers, but was ultimately apprehended and placed in the patrol vehicle. One of the arresting officers observed defendant attempting to secrete money by removing it from his pocket and placing it beneath the rear seat. At about the same time Zelinski was captured while changing clothes in a nearby telephone booth. With both suspects in the patrol car, the officers attempted to return to the scene for possible identifications. This effort was thwarted by a dramatic escape. Unbeknownst to the police officers, Zelinski was in possession of a revolver in his pants pocket. Although handcuffed, Zelinski managed to secure the weapon. According to the officers, Zelinski pointed the revolver at them and instructed them where to drive. During the ride Zelinski ordered one of the officers to surrender his service revolver and handcuff keys to defendant. The officer partially complied by dropping his revolver to the floor of the automobile and giving the keys to defendant. The officers testified that defendant appeared frightened and at one point told Zelinski not to shoot them. As the automobile approached Bloomfield the two officers suddenly jumped from the vehicle and escaped. Zelinski and one of the policemen exchanged gunfire. Zelinski thereafter drove off, with defendant remaining in the rear seat.
Defendant and Zelinski were ultimately apprehended on April 12, 1974. Together they had fled to defendant's cousin's home in Farmingdale, New Jersey. The cousin, Jacqueline Labota, testified that defendant and Zelinski first appeared at her home on April 9, 1974 and virtually held the family hostage for three days. Defendant told Mrs. Labota and her husband that Zelinski was dangerous and "would hurt [him] if [he] did anything
wrong." After defendant and Zelinski had ingested pills rendering both unconscious, Mrs. Labota and her husband escaped and notified the police.
Trooper John Dorrian responded immediately to the Labota home, where he found Zelinski and defendant, both unconscious. Zelinski was lying on the floor with a revolver by his head. Defendant was found in the kitchen with a revolver in his hand. Significantly, expert testimony at trial revealed that the revolver in defendant's possession was the murder weapon.
Perhaps the most damaging evidence against defendant consisted of certain admissions he made to his cousin. Specifically, defendant recounted the events leading up to the murder of decedent. According to defendant, he and Zelinski were in Sena's store on April 7, 1974. He explained that the two believed Sena was involved in an illegal gambling operation and they expected that the victim would thus be in possession of a large quantity of cash. Defendant related to his cousin that they expected to obtain $10,000 from the robbery. Finally, defendant admitted that he had struck the decedent over the head and that Zelinski had shot him during the course of the robbery. Thereafter, the two had escaped from the police.
The events forming the basis for this petition commenced following the State's presentation of its case. After the State had rested defendant moved for a judgment of acquittal out of the presence of the jury. The principal thrust of defendant's argument pertained to the State's alleged failure to prove that he aided or abetted Zelinski in escaping from the arresting officers. Defense counsel contended that defendant had not wilfully participated in the criminal venture. Defendant's argument was premised upon the claim that he had accepted the keys to the handcuffs and the officer's service revolver in accordance with Zelinski's order, and that he was a mere hostage. In short, defendant contended that the State's proof were totally devoid of any evidence which would support a finding by
the jury of an intent on his part to escape from the police. In response, the prosecutor argued that defendant's presence in the police vehicle, coupled with his acceptance of the handcuff keys and revolver, revealed an intent to aid or abet Zelinski. While noting that the evidence pertaining to defendant's intent was somewhat equivocal, the prosecutor contended that only Bontempo could testify as to his state of mind.
In denying defense counsel's motion the trial judge held that the State's evidence was sufficient to support an inference of a concert of action between defendant and Zelinski. The judge went on to state that when the "only one who can rebut a fact is the defendant, then he ought to take the stand * * *." Following denial of defendant's motion the trial judge asked Bontempo whether he wished to testify. The judge then granted a brief continuance to afford defendant an opportunity to confer with his attorney. Defendant thereafter informed the judge that he did not wish to testify in his own behalf. Following the judge's inquiry defense counsel requested an instruction regarding defendant's privilege against self-incrimination.
These events occurred on a Friday. On the following Monday both counsel gave their summations. The judge then began instructing the jury when defendant suddenly interrupted and shouted, "I would like to say something." The judge stated that he would hear defendant, but asked the bailiff to remove the jury. Defendant interrupted, again shouting, "I wanted to say it in front of the jury. I feel I am denied a fair trial." The judge iterated that he would hear defendant, but ordered the jury removed. Defendant was not satisfied, however, and again shouted that he wished to be heard immediately. Before the jury could be removed defendant stated that numerous witnesses could establish his innocence, but that they were not available; that he was unable to testify; that he had been incarcerated for seven months but rarely was able to confer with his attorney, and that he was being denied a fair trial. All of these comments were made in the presence of the jury.
Following removal of the jury the trial judge granted a recess and directed defendant to confer with his attorney. Prior to the recess a colloquy ensued between the judge and defendant. The judge advised defendant that he did not wish to foreclose him from making a statement to the jury, but that Bontempo "owed it to [himself] and to [his] case to discuss it with [his] attorney." Defendant apprised the judge of his reasons for refusing to testify. Specifically, defendant stated that he had a poor memory and feared cross-examination. It was defendant's contention that he had suffered a head injury that severely impaired his ability to recall facts. At one point during defendant's lengthy colloquy with the judge, he stated that he would testify if he could produce medical witnesses who would corroborate his testimony pertaining to his head injury. The judge responded by noting that the testimony of such witnesses would be irrelevant unless defendant took the stand. Defendant noted that if he testified, the prosecutor would confront him with his prior criminal record on cross-examination.
After this discussion the trial judge again directed defendant to discuss the matter with his attorney. The judge then stated that he would afford defendant the opportunity to make a closing argument before the jury. He cautioned defendant that if he decided to make such a statement, the State would be given the opportunity to respond.
Following a brief recess defense counsel returned and stated that defendant did not wish to testify, because "if he [took] the stand, he [would] be treated as any [other] witness." Defense counsel then asked the trial judge to question defendant whether he wished to testify. In response to the judge's questions defendant stated that he would "definitely take the stand" if his doctors were permitted to testify. Although the record is somewhat ambiguous, it would appear that defense counsel had contacted defendant's physicians. Apparently their testimony would not have supported defendant's contention that his head injury had impaired his memory. In any event, the judge
repeatedly informed Bontempo that his physicians could testify, but only if defendant took the stand. Both the judge and defense counsel agreed that the testimony of medical witnesses pertaining to mental impairment would become relevant only if defendant first took the stand. Following this lengthy colloquy defendant again invoked his Fifth Amendment privilege against self-incrimination and declined to testify.
Thereafter, the trial judge inquired as to whether defendant wished to make a closing argument to the jury. Defense counsel interjected that the judge was affording defendant an "unusual opportunity." Defendant then stated that he wished to make a statement to the jury. The judge again cautioned defendant that the prosecutor would be permitted to respond if Bontempo wished to make a statement. He further informed defendant that the latter's statement would not be under oath and that the jury would be so advised. Defendant again advised the judge of his desire to make a statement to the jury.
The jury was then returned and apprised of defendant's intention to address them. Defendant commenced his statement by advising the jury of the reasons for his failure to testify. Specifically, defendant stated that his memory had been impaired because of various head injuries he had sustained. Defendant also noted that he was not well educated and that the jury should consider that fact in evaluating his statement. Defendant then denied complicity in the crimes charged in the indictment in general terms. According to defendant, he ran from the police because he feared being struck by their automobile. He further denied attempting to secrete the alleged stolen money. According to defendant, the revolver recovered by the police near the scene of the homicide was approximately 10 to 15 feet from where he had been observed initially -- a fact he claimed was not brought out ...