The witness Carmen Crespo, who was the widow of Columbia, testified that on the morning of the holdup the petitioner Santana came to her house and met with her husband, Columbia, and the co-defendant Rodriguez. Santana, she said, had guns and masks but said he was providing neither to co-defendant Rodriguez because he did not need them, he was to be the "lookout" and driver of the car.
Another witness, Pepin, testified that on the evening before, December 15th, a Sunday, he had been at the home of Carmen Crespo and Columbia for an informal christening of Rodriguez's baby. He said he spent most of his time there outside, playing craps, and that at one point Santana and Columbia insisted that he go along with them in a car for what he took to be a holdup at the same location that the Monday holdup took place. The witness de la Rosa corroborated him to the extent of testifying that an attempt had been made to break in to the basement apartment on Roseville Avenue on Sunday evening, without success.
Trial was conducted along two major lines: (1) cross-examination of the major witnesses for the State by attacking their credibility through admittedly inconsistent out-of-court statements, bias, interest and the like, and (2) alibi witnesses whose testimony was capable of raising a reasonable doubt that each of the defendants participated in the crime. The heaviest attacks were to the credibility of Carmen Crespo, the widow of the robber Columbia, and to the witness de la Rosa who was in the basement apartment when the robbers appeared. The cross-examination for both Santana and Rodriguez was thorough and skillful but in the end raised questions of credibility for the jury.
The verdicts returned reflect the jury's evident conclusion that there was a reasonable doubt that Rodriguez was at the scene, despite Carmen Crespo's inculpatory testimony about his presence at her house on the morning of the 16th when she said Santana distributed guns and masks. They evidently did not harbor doubts about Santana's participation, possibly due to the eyewitness testimony of the neighbor placing him at the scene of the crime, coupled with the corroborating testimony.
The petition does not question the adequacy of the evidence to support the verdicts against Santana under the test articulated by Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Although not raised, the court has reviewed the lengthy trial transcript several times with this test in mind, and finds that the test has been met.
Rather, the focus of the collateral attack is aimed at two related items: one is that after the evidence was closed and all parties had rested, and after both the defense and the State had completed their summations, petitioner Santana through his attorney and by his own statements to the trial judge asked that he be allowed to take the stand and testify, which he had not done during the trial; and, two, the request was made (it was said) because of a passage during the State's summation as part of the argument to rehabilitate the credibility of the witness Carmen Crespo, who had been the subject of vigorous and robust attack during the summations of both defense attorneys. The background for the position rests on peripheral testimony which requires review for a clear understanding.
Both Carmen Crespo and Pepin testified that on Sunday, December 15, 1974, the day before the robbery, an informal christening party had been held at the home of Columbia and Carmen Crespo, for the baby of co-defendant Rodriguez and his wife. Carmen Crespo testified that Santana was present, and so did Pepin. Carmen Crespo also testified that petitioner Santana had been the baby's sponsor or godfather at this ceremony.
After the vigorous and robust challenges by defense counsel to the credibility of Carmen Crespo in their summations, grounded on legitimate foundations of inconsistent statements on cross-examination, the State responded, at one point, to ask the jury what reason Carmen Crespo would have had to lie about Santana's service as the baby's godfather. At one point he asked the jury whether any witness had denied that Santana was the godfather.
As the summations ended, Santana's attorney objected to the prosecutor's comment as an adverse remark on Santana's failure to testify. A lengthy colloquy ensued, carried over to the next morning, the main subject being whether the testimony had indicated that persons other than the witnesses who testified, or Columbia (who was dead) or Santana or Rodriguez, could have testified on the point, i.e., whether in the circumstances of the case, the remark implied that Santana's failure to testify left that evidence uncontradicted.
The prosecutor responded that the comment was intended to do nothing more than support the credibility of Carmen Crespo which had been the subject of heavy challenge on cross-examination and in both defense summations.
The court denied the mistrial motion on the basis that a comment that certain evidence was uncontradicted is not an improper reference to defendant's failure to testify when the record indicates that persons other than the defendant could have contradicted the evidence if it were not true, and did not testify.
This is no doubt the usual rule, but in the peculiar circumstances of this case, the court is of the view that the comment, even though not so intended, did highlight and emphasize the failure of both defendants to testify, and it is unable to conclude that the error was harmless beyond a reasonable doubt.
While no two cases are ever alike, making it usually impossible to locate a reported decision still in force that is "on all fours", the court is satisfied that in this case the comment falls on the wrong side of the line.
For a very long time it was the well-established principle that comment on failure to testify in a trial in a State court was a matter within the authority of the States, since the Fifth Amendment applied only to the federal government. See, for example, Twining v. N.J., 211 U.S. 78, 53 L. Ed. 97, 29 S. Ct. 14 (1908), and Adamson v. California, 332 U.S. 46, 91 L. Ed. 1903, 67 S. Ct. 1672 (1947).
Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964) made a complete turnaround and declared that the Fifth Amendment privilege against self-incrimination applied to the States through the due process clause of the Fourteenth Amendment. Malloy did not involve the precise question raised here. It involved the question whether a witness at an investigatory hearing (rather than a defendant on trial) could lawfully decline to answer questions about an earlier criminal offense for which he had already been convicted and sentenced.
However, any doubts on that score were laid to rest in Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965). At issue there was the validity of a provision of the California Constitution allowing comment on a defendant's failure to explain or deny by his testimony any evidence or facts in the case against him. It was held that the ruling in Malloy "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt."
A similar rule had long prevailed in New Jersey, with re-enactment as recently as 1960 in N.J.S. 2A:84A-17, which limited comment to cases where there was direct evidence of facts which tend to prove some element of the crime and which facts, if untrue, the defendant could disprove by his own testimony. The comment allowed was also narrow, namely that the jury could draw an inference that he could not truthfully deny those facts. This statute has been declared ineffective in view of Griffin. See State v. Aviles, 45 N.J. 152, 211 A.2d 796 (1965); State v. Lanzo, 44 N.J. 560, 210 A.2d 613 (1965); State v. Deatore, 70 N.J. 100, 358 A.2d 163 (1976).
Since Griffin the decisions of the Supreme Court have displayed no indication of a tendency to modify the intent that the Fifth Amendment guarantee be given its full force.
Thus, Lakeside v. Oregon, 435 U.S. 333, 55 L. Ed. 2d 319, 98 S. Ct. 1091 (1978) upheld an instruction to the jury to caution it against drawing any adverse inference from a failure to testify, even over the objection of defendant's attorney.
More recently, in Carter v. Kentucky, 450 U.S. 288, 67 L. Ed. 2d 241, 101 S. Ct. 1112 (1981), the court set aside a conviction in a case where the State court declined a "no inference" instruction requested by the defense, even though local law held that if a defendant made no request to testify, there was to be no comment on the subject at all.
Carter, as well as other decisions, recognize that it is only the Fifth Amendment aspect that raises the constitutional infraction. The fact that a defendant was not allowed to testify at all at common law, and that his competence to do so arises only from federal or state statute is not controlling. The federal statute is now 18 USC § 3481, enacted March 16, 1878. The New Jersey statute, now N.J.S. 2A:81-8, had already been enacted by the time of the decision in Disque v. State, 49 N.J.L. 249, 8 A. 281 (Sup. 1887), where Chief Justice Beasley observed:
"The only objection made at the time to that line of inquiry was that it was 'not a proper subject matter of cross-examination.'"