Dante Todaro Aj-1779 v. Thomas A. Fulcomer Ernest D. Preate, Jr. And Somerset District Attorney's Office

MANSMANN, Circuit Judge,

dissenting.

While I have no argument with the majority’s statement of the facts of this case or its articulation of the applicable law, I dissent because I believe that the law, when applied to these facts, requires that an evidentiary hearing be held with respect to the issue of prejudice.

While Todaro’s appellate brief focuses exclusively on the prosecutor’s alleged knowledge that Larry Kinsey would invoke his fifth amendment rights, the thrust of the petition is, as the district court’s opinion makes clear, that Todaro was prejudiced by the totality of the circumstances surrounding Kinsey’s appearance on the stand. The state trial court concluded that there was no prejudice and those reviewing this conclusion have deferred to this finding.

Having reviewed the record in this case, I am convinced that the district court, instead of deferring to the state trial court’s conclusions with respect to prejudice, should have undertaken an independent analysis of the issue of prejudice and should have conducted an evidentiary hearing in order to flesh out the factual ambiguities underlying Todaro’s claim of prejudice.

In reaching this conclusion I am mindful of the role of the federal courts in evaluating the habeas claims of state prisoners.

Before a federal court may overturn a conviction resulting from a state trial ..., it must be established not merely that the [state action] is undesirable, erroneous, or even “universally condemned” but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.

Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973).

If, as Todaro alleges, the prosecutor called Albert Kinsey to the stand knowing that he would invoke the fifth amendment, Todaro may, under the holding of Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, *108610 L.Ed.2d 278 (1963), have a colorable constitutional claim. Under Namet, reversible “error may be based upon a concept of prosecutorial misconduct, when the government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege” or where, “in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination and thus unfairly prejudiced the defendant.” Id. at 186-87, 83 S.Ct. at 1154-55. The principles articulated in Namet were “elevated to a constitutional plane in Douglas v. Alabama, 380 U.S. 415 [85 S.Ct. 1074, 13 L.Ed.2d 934] (1964).” Ziegler v. Callahan, 659 F.2d 254, 272 n. 12 (1st Cir.1980).

Todaro relies on the second Namet prong in claiming a violation of his constitutional rights. He argues that in repeatedly referring to Kinsey in eliciting testimony from prosecution witnesses, “the assistant district attorney missed no opportunity to have Kinsey’s name put before the jury.” These references, coupled with the prosecutor calling Kinsey to the stand and Kinsey’s declining to testify, especially if the prosecutor knew that Kinsey would invoke the fifth amendment, “added critical weight to the prosecution’s case in a form not subject to cross-examination_” Namet, 373 U.S. at 187, 83 S.Ct. at 1155.

In his petition, Todaro states that in January, 1986 counsel for Todaro informed the prosecutor that Kinsey would not testify against Todaro in this case. Todaro also states that in March, 1986 Kinsey informed Todaro’s counsel that he would not testify against Todaro. Finally, Todaro avers, contrary to the prosecutor’s assertion, that Kinsey notified the prosecutor on the day prior to trial that he did not wish to testify against Todaro. The district court did not explore these allegations but apparently credited the prosecutor’s statement that Kinsey had told him, on the afternoon prior to trial, that he would testify. The district court accepted the prosecutor’s statement despite the fact that, when questioned about the same conversation with Kinsey, the prosecutor did not seem at all certain that Kinsey would testify. During the examination of Trooper Bee, the following exchange took place:

Mr. Baca: Do you intend to call Kinsey?
Mr. Yelovich: 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.1

Under these circumstances, I am unable to say either that the prosecutor did not make “a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege” or that it is clear that “inferences from a witness’ refusal to answer [did not add] critical weight to the prosecution’s case in a form not subject to cross-examination and this unfairly prejudiced [Todaro].” Namet at 186-87, 83 S.Ct. at 1154-55.

In evaluating the events surrounding Kinsey’s appearance on the stand, the state trial court concluded that a declaration of a mistrial or other corrective action was not necessary because the jury did not hear Kinsey invoke the fifth amendment and, therefore, Todaro could not have been prejudiced. In reaching the conclusion that Kinsey’s refusal to testify had not been overheard by the jury, the court relied exclusively on counsel’s statements that they had not heard Kinsey. Despite the fact that the court reporter was able to hear and record all of Kinsey's statements with no apparent problem, the jury was never polled. The court dismissed Kinsey, apparently within the hearing of the jury, with the following words:

The Court: Mr. Kinsey, you’re [sic] request is granted. You will not have to testify. You may now go back to the jail with the Sheriff.

The district court, considering the totality of these circumstances, deferred to the *1087state trial court’s conclusion with respect to prejudice despite the fact that the issue of prejudice was never fully evaluated by the state trial court. The prejudice analysis was skeletal at best and was undertaken without reference to any articulated legal standard. Moreover, the factual underpinnings of the claim of prejudice were given only cursory attention. The prosecutor’s equivocation and Todaro’s statements regarding whether the prosecutor knew that Kinsey would refuse to testify were not addressed and no inquiry was made as to what the jury actually heard Kinsey say. What questioning there was did not go far enough; the trial court stopped short of asking those questions which might well have established prejudice.

Under these circumstances, I believe that it was incumbent upon the district court to do more than apply the presumption of correctness embodied in 28 U.S.C. § 2254(d) to the state trial court’s finding that Toda-ro did not suffer any prejudice. The case-law makes clear that the section 2254 presumption does not apply where it appears that the material facts were not adequately developed in the state proceeding or where the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing.2 In those circumstances, an evidentiary hearing is required. Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963); Smith v. Freeman, 892 F.2d 331, 338-39 (3d Cir.1989); Sullivan v. Cuyler, 723 F.2d 1077, 1084 (3d Cir.1983).

It is our responsibility to examine the findings of the state [court] to determine if they are adequate to support the presumption of correctness under § 2254(d). These findings must be sufficient to enable the district court to fulfill its obligation to determine that they are supported by the evidence and that the correct standards of law were applied.

Fowler v. Jago, 683 F.2d 983, 988-89 (6th Cir.1982).

I am not convinced that the state trial court’s factual findings are reliable or that the court applied the correct legal standard in evaluating Todaro’s claim of prejudice. An evidentiary hearing is required with regard to the disputed factual matters and an independent evaluation must be made of the overall claim of prejudice.

It may be that even if the outstanding factual questions were not resolved favorably to Todaro, Todaro still would have a viable claim of prejudice. The danger of “guilt by association” inherent in a case involving a co-conspirator’s assertion of the fifth amendment privilege is obvious. There is a strong argument that the danger of “guilt by association” was present in this case even if it is determined that the jury did not overhear Kinsey’s assertion of the fifth amendment privilege. At the time that Kinsey was called to the stand and excused without testifying, the jury was thoroughly familiar with Kinsey and his alleged role in the case. Even though Kinsey did not testify, the jury was made aware that Kinsey was in jail and may well have used Kinsey’s guilt as substantive evidence against Todaro or may have inferred that Kinsey’s testimony would have implicated Todaro. The likelihood that Kinsey’s appearance was prejudicial is increased by the court’s failure to explain Kinsey’s dismissal or to offer any cautionary instruction. These are matters which the district court should have addressed.

On the record as it stands, I am unable to say that Todaro was not deprived of “fundamental fairness in his criminal trial,” Bisaccia v. Attorney General of the State of N.J., 623 F.2d 307, 312 (3d Cir. 1980), and that his due process rights were not abridged. I would, therefore, vacate the order of the district court and remand this matter with instructions that an evi-dentiary hearing be held in the context of an evaluation of the overall claim of prejudice.

. On the basis of this exchange, the state trial court should, arguably, have examined Kinsey out of the presence of the jury in order to determine whether he was, in fact, prepared to testify.

. In its brief of but a few paragraphs the Commonwealth argues simply that the state trial court’s conclusions are entitled to deference. The Commonwealth does not address the adequacy of the state factfinding procedure.