Melanson v. O'BRIEN, 4568.

• Decision Date: 26 October 1951
• Docket Number: No. 4568.,4568.
• Citation: 191 F.2d 963
• Parties: MELANSON v. O'BRIEN, Warden.
• Court: U.S. Court of Appeals — First Circuit

191 F.2d 963 (1951)

MELANSON v. O'BRIEN, Warden.

No. 4568.

United States Court of Appeals First Circuit.

October 26, 1951.

Joseph J. Gottlieb, Boston, Mass., for appellant.

Samuel E. Levine, Asst. Dist. Atty., Western District, North Adams, Mass. (Francis E. Kelly, Atty. Gen., Henry P. Fielding, Asst. Atty. Gen., Stephen A. Moynahan, Dist. Atty., Western District, Springfield, Mass., and Walter J. Griffin, Asst. Dist. Atty., Western District, Holyoke, Mass., with him on the brief), for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

Elmer A. Melanson is now confined in Massachusetts State Prison under concurrent sentences of 25 to 30 years for rape and for carnal abuse of a female child, pursuant to trial and conviction in the Superior Court for Berkshire County, Mass., upon an indictment charging these offenses in separate counts. He filed in the court below a petition for a writ of habeas corpus. The district judge, without issuing the writ or a show-cause order, filed a memorandum in which he concluded that it appeared from the face of the petition that Melanson was not entitled to the relief sought. 95 F.Supp. 230; 101 F.Supp. 164. From an order dismissing the petition and denying the writ, the present appeal was taken. A certificate of probable cause for appeal was duly issued by the district judge pursuant to 28 U.S.C. § 2253.

The court below found that petitioner had exhausted his remedies in the state courts, as required by 28 U.S.C. § 2254, and respondent on appeal does not suggest the contrary. It appears that Melanson has hitherto unsuccessfully tried for relief in the state courts on the constitutional claim upon which his petition for habeas corpus was predicated, namely, that he was tried and convicted without the assistance of counsel in violation of his rights under the Fourteenth Amendment. He raised this question in a motion for a new trial filed in the Superior Court and in exceptions to the denial thereof taken to the Supreme Judicial Court. As an alternative procedure he raised the same constitutional question in a petition for a writ of error filed in the Supreme Judicial Court for Suffolk County, which petition was reserved and reported to the full bench, without decision, by the single justice before whom the petition came.

The Supreme Judicial Court overruled the exceptions to the order denying a new trial, and on the petition for a writ of error affirmed the judgment of conviction. The case is reported sub nom. Commonwealth v. Blondin, 1949, 324 Mass. 564, 87 N.E.2d 455.¹ Certiorari was applied for and denied. Melanson v. Massachusetts, 1950, 339 U.S. 984, 70 S.Ct. 1004, 94 L.Ed. 1387, Justices Black and Douglas noting their opinion that the petition for certiorari should have been granted. Of course we have no way of knowing why certiorari was denied, nor may denial of certiorari be taken as an adverse ruling on the merits; and it is clear that such denial did not deprive the court below of jurisdiction to entertain a subsequent petition for habeas corpus. See Darr v. Burford, 1950, 339 U.S. 200, 214-216, 94 L.Ed. 761. The district court did not dismiss the petition for habeas corpus, as a matter of discretion, upon the ground that the constitutional claim had been fully examined and determined adversely by the highest court of the state, with review denied by the Supreme Court of the United States, and that it would be an abuse of the writ of habeas corpus to inquire into the matter again. Upon the contrary, the court dismissed the petition on its independent view that the allegations, taken as true, failed to make out a case of denial of constitutional right.

Petitioner also advanced a subordinate contention that he was denied due process of law in that he was tried "in camera, behind closed doors." In this connection United States v. Kobli, 3 Cir., 1949, 172 F.2d 919, is not a controlling authority, for there the prosecution was for a federal offense and the question was whether the exclusion of the general public from the courtroom was a violation of the specific guaranty of a "public trial" contained in the Sixth Amendment to the Constitution of the United States. The extent to which exclusion from the courtroom of some part of the public is a violation of the more general guaranty of due process of law in the Fourteenth Amendment is a different question. See In re Oliver, 1948, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682. See also Betts v. Brady, 1942, 316 U.S. 455, 461-462, 62 S.Ct. 1252, 86 L.Ed 1595. Presumably the trial justice acted pursuant to Mass. G.L.(Ter.Ed.) Ch. 278, § 16A, providing that, in the trial of certain sex crimes where the victim is a minor under eighteen years of age, "the presiding justice shall exclude the general public from the court room, admitting only such persons as may have a direct interest in the case." We agree with the Supreme Judicial Court that such a state statute is not on its face a violation of the due process clause; and without further comment, we refer to the full discussion by the Supreme Judicial Court on this aspect of the case. See 324 Mass. at pages 569-573, 87 N.E.2d 455.

The petition was filed in the court below on January 23, 1951. Accompanying it were applications for the assignment of counsel and for a writ of habeas corpus ad testificandum. These applications were denied by the district judge on January 25, 1951, in the same memorandum in which he concluded that the main petition should be dismissed. A few days thereafter petitioner sent to the district judge a so-called brief which contains arguments on the law and citations of authorities, as well as certain further factual allegations; and he requested that the dismissal of the petition be reconsidered in the light of the contents of the brief. The district judge did so reconsider the case, and on February 1, 1951, he filed a supplemental memorandum in which he stated that nothing in the brief called for a modification of his original conclusion that the petition should be dismissed. To the extent that the "brief" contained additional factual allegations, the judge apparently treated it as an informal amendment of the original petition for habeas corpus (which he was fully warranted in doing), for he directed the clerk to make the brief a part of the record on appeal. In reviewing the case we shall also treat the additional factual allegations as included in the petition by amendment, though in the view we take of the case we do not think that this affects its outcome.

From the petition, the following allegations of fact appear:

Melanson was arrested on the evening of January 3, 1946, without a warrant, by the Massachusetts State Police. Without being told the nature of the charge against him, he was required to accompany the police to the house of a young girl whom he was later formally charged with having attacked. He was then returned to the barracks of the State Police where he was held incommunicado and subjected to physical examination of his body and clothing and continuous questioning with regard to the alleged crime of rape, until nearly noon of the following day. On January 4 petitioner was brought before the District Court of Berkshire County and was held in $1,000 bail. On January 11 he was bound over for the grand jury and his bail was raised to $5,000. He was indicted by the grand jury on January 16, 1946, along with Blondin and Morin upon charges of rape and abuse of a female child under sixteen years of age. On the same day he was arraigned and pleaded not guilty. The Superior Court set bail at $50,000, and he was forthwith remanded to custody.

Petitioner at this time had "cash securities immediately available" totaling more than $3,500 wherewith to employ counsel. While at the county jail, just prior to the aforesaid arraignment, petitioner in an effort to engage counsel had consulted with a lawyer from Pittsfield. However, on January 22, 1946, just before the trial started, and only six days after he had been indicted, he found himself in the prisoner's dock in the courtroom, without an attorney to represent him, the attorney from Pittsfield whom he had consulted having failed to come back to see him or to communicate with him further, leaving petitioner in ignorance whether this lawyer would accept the case or not. Petitioner inquired of a court officer to whom he should apply in order to have the case postponed to afford him an opportunity to engage counsel. The court officer advised petitioner to consult the district attorney. When the district attorney arrived petitioner told him of his previous unsuccessful efforts to engage counsel, and asked the prosecutor to have the case continued, so that petitioner might have more time and opportunity to obtain counsel, if need be, an attorney from out of town. The district attorney replied that the case could not be postponed; that it was his duty to prosecute the case immediately because petitioner was in jail and "jail cases" had to be tried before "bail cases". The district attorney then asked the court for the immediate trial of the case, without disclosing to the court the defendant's desire to be represented by counsel and his request for a continuance. Whereupon, on the said January 22, 1946, the court ordered the trial to proceed.

Petitioner, with no more than six grades of grammar schooling, with no previous record and no experience whatsoever with courts and legal proceedings, was misled into supposing that the prosecutor's word was final in denial of the requested postponement, and did not know enough to inform the court directly of his desire to be represented by counsel of his own choosing. He did not, therefore, ask the court for a continuance, but suffered the trial to proceed. Throughout the trial he was prejudiced by his incompetence to organize and present his own defense properly.

The trial resulted in a verdict...