Herring v. Meachum

• Decision Date: 09 December 1993
• Docket Number: D,No. 1871,1871
• Citation: 11 F.3d 374
• Parties: Perry Lee HERRING, Petitioner-Appellant, v. Larry R. MEACHUM, Commissioner of Corrections, Respondent-Appellee. ocket 93-2067.
• Court: U.S. Court of Appeals — Second Circuit

Page 374

11 F.3d 374

Perry Lee HERRING, Petitioner-Appellant, v. Larry R. MEACHUM, Commissioner of Corrections, Respondent-Appellee.

No. 1871, Docket 93-2067.

United States Court of Appeals Second Circuit.

Argued Aug. 11, 1993.

Decided Dec. 9, 1993.

Jeremiah Donovan, Old Saybrook, CT, for petitioner-appellant.

Timothy J. Sugrue, Asst. State's Atty., Wallingford, CT for respondent-appellee.

Before WINTER, MINER, and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Petitioner Perry Lee Herring appeals from a judgment of the United States District Court for the District of Connecticut, Peter C. Dorsey, Judge, denying his petition for a writ of habeas corpus. On appeal, Herring argues, inter alia, that he was deprived of due process by Connecticut's joinder of two unrelated murder charges for trial and the state trial court's refusal to instruct the jury regarding the lesser included offense of manslaughter, and that locking the courtroom doors during the jury charge deprived him of a fair and public trial.

We affirm the judgment of the district court.

BACKGROUND

In March 1987, Perry Lee Herring went to trial in Connecticut Superior Court for two unrelated murders: the murder of Donald Gore on April 16, 1981, and that of Henry J. "Rico" Littman whose body was found on May 15, 1981. Herring was convicted of felony murder of Gore, and of being an accessory to the murder of Littman.

The state's principal witness was Herring's former girlfriend, Loretta Swain, a prostitute and shoplifter with a history of psychological problems. According to her testimony, on the night of Donald Gore's murder, Swain Another witness, Graylon Shannon, corroborated Swain's testimony regarding the Gore shooting. Shannon testified that when they were both inmates at the Hartford Correctional Center, Herring admitted to the Gore shooting. For the defense, Edward Condon, an eyewitness, testified that he heard tires screeching and shots fired, and saw a van speeding through the parking lot with a white man with long stringy hair hanging from the van. Herring is a black man whose hair is not "stringy."

                was with Herring in a Hartford, Connecticut bar.  She noticed Gore, whom she knew "professionally," and told Herring that she thought she could obtain money from Gore.  Herring told Swain to arrange to meet Gore in a nearby parking lot, where Herring would "stick the guy up" while Gore was undressed.  Swain met Gore in his van as planned.  Soon thereafter, Herring approached the van and announced, "Yo, this is a stick-up."   When Gore started the van and attempted to drive away, petitioner fired several shots at Gore, fatally wounding him.  Swain jumped from the van and, with petitioner, fled the scene.  Along the way, she dropped several personal belongings in the van and around the crime scene which were found by police, and identified as belonging to Swain.  Swain was questioned as a suspect in Gore's murder, but she was never formally charged
                

In her testimony, Swain also implicated Herring in the unrelated murder of Henry "Rico" Littman. Swain told police that Herring, along with Littman and Henry Robinson, had robbed a bank, and that during the robbery Littman's face came unmasked. Herring and Robinson feared that Littman would be discovered and would, in turn, reveal their identities. They decided that "they had to get rid of" Littman to prevent police from discovering their involvement in the robbery. On May 15, 1981, Littman's body was found in the trunk of a car with his head wrapped in a black plastic bag and his hands tied. Police determined that he had died from a shotgun wound to the head.

Glenda Hightower, Robinson's former girlfriend, corroborated Swain's testimony about the Littman murder. Hightower overheard Herring tell Robinson that Littman had "to go" because bank cameras probably captured his face on film. In addition, one T.J. Thomas testified that on May 15, 1981, he had seen Robinson and another man pass him in the car in which Littman's body was later found. He saw the two men get out of the car and run away. Graylon Shannon also testified that Herring later admitted in prison that he had carried Littman's body to the car and drove to the place where the car was abandoned.

Connecticut brought two separate informations against Herring charging him with the Gore and Littman killings. The first charged murder and felony murder in connection with Gore's death; the second charged murder in connection with Littman's death. On March 9, 1987, without objection from petitioner, the informations were consolidated for trial. Shortly thereafter, the State filed an amended information as to the Littman killing, charging Herring with an additional count of conspiracy to commit murder.

After the Littman information was amended to include the conspiracy count, Herring objected to the joint trial of the two informations by moving for a severance. In support of his severance motion, Herring claimed that until the Littman information was amended, to his knowledge Loretta Swain was the only witness common to both counts. He argued that the addition of the conspiracy charge to the Littman information would cause him substantial prejudice because the additional witnesses that would testify to prove the Littman conspiracy would bolster Swain's credibility as to the separate Gore murder as well. The trial court denied Herring's severance motion and the trial went forward on the consolidated charges.

During the trial, the judge instructed the jury on three occasions--in jury selection, during the trial itself, and in the final jury instructions--that the crimes charged were independent, and that the evidence regarding one murder was not to be considered in determining whether Herring was guilty as to the other. The jury returned a verdict finding Herring guilty of felony murder in connection with the death of Gore, and of being an accessory to Littman's murder, but On petition for habeas corpus, Magistrate Judge Joan Glazer Margolis issued a recommended ruling respecting Herring's arguments. The district court adopted the Magistrate Judge's ruling over petitioner's objection. We now affirm the judgment of the district court.

acquitting him of murder as to Gore and conspiracy as to Littman. The Supreme Court of Connecticut upheld the convictions, State v. Herring, 210 Conn. 78, 554 A.2d 686 (1989), and the United States Supreme Court denied certiorari, Herring v. Connecticut, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 579 (1989).

DISCUSSION

I. Joinder of Offenses

Petitioner first claims that the trial judge should have granted his motion for severance because joining the Gore and Littman murders for trial violated his due process rights under the Fourteenth Amendment. By adding the Littman conspiracy charge, Herring argues, the state impermissibly increased the probability of conviction on the Gore charges because, although the additional witnesses testified only as to the Littman murder, they bolstered Loretta Swain's testimony as to both. He also claims that there was an unconstitutional risk that the jury would use the evidence cumulatively to convict with respect to both murders.

Joinder of offenses rises to the level of a constitutional violation only if it "actually render[s] petitioner's state trial fundamentally unfair and hence, violative of due process." Tribbitt v. Wainwright, 540 F.2d 840, 841 (5th Cir.1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1184, 51 L.Ed.2d 587 (1977); see United States v. Lane, 474 U.S. 438, 446 n. 8, 106 S.Ct. 725, 730 n. 8, 88 L.Ed.2d 814 (1986). In considering whether a violation of due process has occurred, the emphasis must be on the word "actually"; for, viewed clearly, it is only the consequences of joinder, over which the trial judge has much control, and not the joinder itself, which may render the trial "fundamentally unfair." See United States ex rel. Evans v. Follette, 364 F.2d 305, 306 (2d Cir.1966) (per curiam) (decision to consolidate charges for trial does not itself raise an issue of constitutional dimension), cert. denied, 385 U.S. 1016, 87 S.Ct. 733, 17 L.Ed.2d 552 (1967). We have recognized that "[t]here is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all." United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.) (L. Hand, J.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939). We have also noted that " 'juries are apt to regard with a more jaundiced eye a person charged with two crimes than a person charged with one.' " United States v. Werner, 620 F.2d 922, 929 (2d Cir.1980) (quoting United States v. Smith, 112 F.2d 83, 85 (2d Cir.1940)); see also Corbett v. Bordenkircher, 615 F.2d 722, 724-25 (6th Cir.) (describing forms of prejudice that may result from joint trial), cert. denied, 449 U.S. 853, 101 S.Ct. 146, 66 L.Ed.2d 66 (1980).

Nonetheless, the Supreme Court, a generation ago, explicitly accepted that "[t]his type of prejudicial effect is acknowledged to inhere in criminal practice, but it is justified on the grounds that (1) the jury is expected to follow instructions in limiting this evidence to its proper function, and (2) the convenience of trying different crimes against the same person ... in the same trial is a valid governmental interest." Spencer v. Texas, 385 U.S. 554, 562, 87 S.Ct. 648, 653, 17 L.Ed.2d 606 (1967). Thus, joinder of offenses has long been recognized as a constitutionally acceptable accommodation of the defendant's right to a fair trial. As discussed in the context of joinder of defendants, consolidated prosecutions "conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial." Bruton v. United States, 391...