APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Seitz, Chief Judge, Sloviter and Becker, Circuit Judges.
The State of New Jersey appeals from the district court's order conditionally granting Rene Santana's petition for a writ of habeas corpus. This court has jurisdiction under 28 U.S.C. § 1291 (1976).
Santana was convicted in state court of a felony-murder occurring during an attempted robbery in Newark, New Jersey. Santana's conviction was modified and affirmed by the New Jersey Appellate Division, and the New Jersey Supreme Court denied certification. Santana then petitioned for a writ of habeas corpus in district court.
The first two claims in Santana's petition involve the prosecutor's effort to bolster the credibility of the State's witness, Carmen Crespo. Crespo testified that on the day before the robbery attempt, she held an informal christening ceremony at her apartment in honor of the child of a co-defendant in the case and that Santana, who was present at the ceremony, was named godfather of the child. This testimony was offered to discredit Santana's alibi defense. Although Santana himself did not take the stand, a defense witness had testified that Santana was in Corona, New York at the time of the ceremony and on the following day, when the crime was committed.
Defense counsel vigorously attacked Crespo's credibility, claiming that she had lied to protect her brother, at one time a suspect in the investigation. The prosecutor made the following statement in his summation in an attempt to bolster Crespo's credibility:
Now what did [Crespo] tell us? She told us that there was a christening at her house. Have you heard anybody come into this courtroom and deny that a christening took place that night? Do you think she is making that up to you? She said that Jose's baby was going to be baptized . . . and she said that this defendant is the baby's godfather. Did anybody deny that to you? Did anybody ever say that was a lie to you? Why is she going to make that up if it is not so?
After the prosecution's summation, defense counsel moved for a mistrial, claiming that the clear implication of this statement was that one of the two defendants should have denied Crespo's testimony. After extensive discussions with counsel, the trial court denied the motion. Immediately thereafter, defense counsel informed the court that Santana desired to take the stand to deny that he was the godfather of Jose Rodriguez's child. The court refused to reopen the case so that Santana could testify.
Santana's habeas petition alleges: 1) that the prosecutor's remark was an impermissible comment on his failure to testify, see Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); 2) that the trial court's refusal to reopen the case deprived him of his constitutional right to testify; and 3) that numerous instances of prosecutorial misconduct denied him his right to a fair trial.
The district court granted a conditional writ of habeas corpus, holding that the prosecutorial comment "did highlight and emphasize the failure of both defendants to testify," and that this error was not harmless beyond a reasonable doubt. The court rejected Santana's right-to-testify ...