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Todaro v. Fulcomer

filed: September 10, 1991.

DANTE TODARO # AJ-1779, APPELLANT
v.
THOMAS A. FULCOMER; ERNEST D. PREATE, JR.; AND SOMERSET DISTRICT ATTORNEY'S OFFICE



Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Div. No. 90-00048J.

Mansmann, Nygaard, and Rosenn, Circuit Judges. Mansmann, Circuit Judge, dissenting.

Author: Rosenn

Opinion OF THE COURT

ROSENN, Circuit Judge

This appeal from the denial of a petition for a writ of habeas corpus requires us to decide whether the presumption that state court factual findings are correct should be rejected because the factfinding procedure employed by the state court did not adequately afford a full and fair hearing. Defendant, Dante Todaro, convicted of burglary and other various offenses following a jury trial, contends that his alleged co-conspirator's appearance on the stand deprived Todaro of fundamental fairness in his criminal trial. Todaro alleges that a federal evidentiary hearing is necessary to establish whether prosecutorial misconduct occurred and whether his co-conspirator's invocation of the fifth amendment unfairly prejudiced him. The district court denied petitioner's petition without an evidentiary hearing. We affirm.

I.

On August 13, 1985, Todaro and his companion, Larry Albert Kinsey, were arrested in Somerset County, Pennsylvania, while traveling in an automobile containing stolen property. Todaro and Kinsey were charged with four counts of burglary and related offenses. Kinsey pled guilty, whereas Todaro elected to be tried by a jury and was convicted of burglary, theft, criminal mischief, conspiracy, and state firearms violations. Todaro alleges that Kinsey's invocation of the fifth amendment privilege against self-incrimination during the trial set in motion a series of circumstances which prejudiced him and resulted in fundamental unfairness.

Prior to Kinsey's appearance on the witness stand, other witnesses called by the prosecution had mentioned his name and had given testimony regarding Kinsey, including victims of the burglaries. State Trooper Blasko, the officer who arrested Todaro and Kinsey, testified that Kinsey was a passenger in the vehicle stopped for speeding; that Blasko found stolen goods, including numerous weapons, in the vehicle; that he handcuffed both Todaro and Kinsey; that he advised them orally of their Miranda rights; and that Kinsey signed the written statement acknowledging that his Miranda rights were given to him, but that Todaro refused to sign the waiver form. In the presence of the jury, the prosecutor argued that the waiver form was relevant because both defendants had given statements that "would be in evidence later."

State Trooper Marker testified, stating that he advised one of the burglary victims to go to the jail to secure his missing watch from Kinsey and that the victim identified the watch as his. State Trooper James Bee also testified, stating that he took down Kinsey's statement. When the defense objected to this line of questioning, the prosecutor responded that he believed he was entitled to show the inconsistency between Kinsey's and Todaro's statements. The court sustained the defense's objection and permitted no further questioning regarding Kinsey's statement.

The question of whether Kinsey would testify first arose in conjunction with the testimony of State Trooper Bee. Defense counsel objected on relevancy grounds to Officer Bee's testimony concerning an exhibit of the form he sent to ascertain whether Kinsey had a permit to carry a firearm. Following the court's decision to sustain the objection, the prosecutor requested a side-bar conference at which he argued that he had the right to use Kinsey's statement given to the arresting officers as long as Todaro's name was not mentioned. At that side-bar conference, the following exchange took place:

Mr. Baca [defense counsel]: Do you intend to call Kinsey?

Mr. Yelovich [prosecutor]: Sure. He's in the jail. I talked to him yesterday.

Mr. Baca: Is he going to testify?

Mr. Yelovich: I think so. I'm not going to rely on him. I don't know what he's going to say.

The court ruled that Kinsey's statement was inadmissible.

Later in the trial, the prosecution called Kinsey to testify. Although he had pled guilty, he had not yet been sentenced. Prior to any testimony, Kinsey, from the witness stand, turned to the trial judge and informed him that he wished to invoke his privilege against self-incrimination. After conferring with counsel at side-bar, and then during a trial recess that he called, the trial judge ruled that he would grant the privilege since Kinsey had not yet been sentenced. The judge then excused the witness without questioning and without explanation to the jury. The court denied the motion of the defense for a mistrial.

Todaro alleges that the preceding testimony regarding Kinsey and the circumstances surrounding Kinsey's appearance and excusal from the the witness stand denied him a fair trial under the fourteenth amendment. This issue was raised and rejected at trial, in post-trial motions, and on appeal to the Pennsylvania Supreme Court. See Commonwealth v. Todaro, 524 Pa. 64, 569 A.2d 333 (1990). The Commonwealth does not dispute that Todaro exhausted his state remedies with respect to this issue. The United States District Court for the Western District of Pennsylvania denied Todaro's petition for a writ of habeas corpus without a hearing. A timely notice of appeal followed and this court subsequently issued a certificate of probable cause.

II.

State prisoners are entitled to relief on writ of habeas corpus in federal court only upon showing a violation of federal constitutional standards. Milton v. Wainwright, 407 U.S. 371, 377, 33 L. Ed. 2d 1, 92 S. Ct. 2174 (1971). Thus, "we sit not to retry state cases de novo but rather to examine the proceedings in the state court to determine if there has been a violation of federal constitutional standards." Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 (3rd Cir. 1991). Where the district court denies the petition for a writ of habeas corpus in the absence of an evidentiary hearing, we employ a two-step analysis. Id. First, whether the petitioner asserts facts which entitle him to relief. Id. at 291. Second, if the petition does allege facts that establish a constitutional violation, we must then determine whether an evidentiary hearing is needed to prove those assertions. Id.

A petitioner on writ of habeas corpus will not succeed merely because the prosecutors' actions "were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986). Rather, we must determine whether the prosecutor's actions "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id., citing Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974).

With this standard in mind, we turn to the petitioner's contention that federal findings are necessary to determine whether prosecutorial misconduct occurred. Todaro alleges in his petition that his constitutional rights were violated when the Commonwealth called Kinsey as a witness knowing that he would assert his fifth amendment privilege against self-incrimination and that the circumstances of Kinsey's appearance on and excusal from the witness stand denied Todaro his constitutional right to a fair trial. Todaro further contends that the prosecution missed no opportunity to put Kinsey's name before the jury; that virtually every witness for the Commonwealth was asked whether s/he knew Kinsey or some other question involving him; and that the inferences from this testimony added critical weight to the prosecution's case in a form not subject to cross-examination. Thus, he argues that in the face of these circumstances the trial court did not fully develop material facts at the hearing to determine whether the prosecution called Kinsey knowing of his intent to invoke the fifth amendment. Therefore, Todaro argues that the fact-finding procedure employed by the court at side-bar did not adequately afford him a full and fair hearing as provided by 28 U.S.C. ยง 2254(d)(6). He concludes that under these circumstances the district court erred in not granting him an evidentiary hearing when it held irrelevant the prosecution's knowledge of Kinsey's anticipated invocation of his fifth amendment right.

Todaro, referring to an analysis in Namet v. United States, 373 U.S. 179, 10 L. Ed. 2d 278, 83 S. Ct. 1151 (1963), concerning whether reversible error is invariably committed whenever a witness claims his privilege not to answer, argues that prosecutorial misconduct may occur "when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from the use of the testimonial privilege," id. at 186, and that in the circumstances of a given case, inferences from a witness's refusal to answer may add critical weight to the prosecution's case in a form not subject to cross-examination. Namet, however, did not involve a state prisoner's writ of habeas corpus, but a direct appeal from a conviction. Moreover, the Court rejected those arguments in Namet even though counsel for the witness had announced to the Government that his clients would invoke the testimonial privilege if questioned. The Court observed that "the prosecutor need not accept at face value every asserted claim of privilege, no matter how frivolous." Id. at 188. The Court also pertinently observed, of significance to these proceedings, that the case before it was not one "in which a witness' refusal to testify is the only source, or even the chief source, of the inference that the witness engaged in criminal activity with the defendant." Id. at 189.

In this case, the prosecutor gave a detailed statement regarding his meeting with the defendant which took place in the presence of Deputy Sheriff Will and Deputy Sheriff Kormanik. The prosecutor represented to the court that when this case was scheduled for trial, Kinsey was in jail in another county and the Commonwealth petitioned for his return. He was not returned until the day before trial when the assistant district attorney then saw him. Their meeting was cordial and Kinsey told him that testifying in the presence of the defendant would not pose any problem for him. This statement is not contradicted by any reliable evidence. Defense counsel has never claimed that Kinsey informed him prior to trial that he would not testify.*fn1 Indeed, the defense counsel himself asked the prosecutor whether Kinsey was going to testify. Neither do we have an affidavit of Kinsey stating that he informed anyone prior to trial of his decision not to testify. It is only the defendant himself who, predictably, alleges that his counsel informed the prosecution of Kinsey's decision to ...


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