LaFrance v. Bohlinger

• Decision Date: 09 October 1973
• Docket Number: Misc. Civ. No. 72-134-T.
• Citation: 365 F. Supp. 198
• Parties: Peter F. LaFRANCE, Petitioner, v. George H. BOHLINGER, III, Superintendent, Massachusetts Correctional Institution at Norfolk, Respondent.
• Court: U.S. District Court — District of Massachusetts

365 F. Supp. 198

Peter F. LaFRANCE, Petitioner, v. George H. BOHLINGER, III, Superintendent, Massachusetts Correctional Institution at Norfolk, Respondent.

Misc. Civ. No. 72-134-T.

United States District Court, D. Massachusetts.

October 9, 1973.

Alexander Whiteside, II, Putnam, Bell & Russell, Boston, Mass., for petitioner.

Bernard Manning, Asst. Atty. Gen., Boston, Mass., for respondent.

OPINION

TAURO, District Judge.

Petitioner, an inmate at M.C.I. Norfolk, seeks a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. He has been confined following convictions in the Superior Court on indictments charging manslaughter, leaving the scene of an accident after causing personal injury, operating a motor vehicle without a license and operating so as to endanger.

He is serving a term of four to six years on the manslaughter indictment. The other indictments were placed on file after trial. Petitioner unsuccessfully appealed his convictions to the Supreme Judicial Court of Massachusetts. Commonwealth v. LaFrance, 1972 Adv. Sheets 177, 278 N.E.2d 394.

The charges against the petitioner arose from an incident which occurred on October 6, 1970 at about 11:00 P.M. when one Paul Butler was struck and killed by an automobile. The facts and circumstances surrounding this incident are detailed in the Supreme Judicial Court's opinion. 1972 Adv.Sheets 177, 278 N.E.2d 394. By way of background it is sufficient to outline briefly certain events which occurred during the trial. These events will be discussed in greater detail as we analyze the legal issues presented by this petition.

A Richard Brown was called as a witness by the prosecution. Brown testified on direct examination that he had been with the petitioner at another's apartment at the time of the automobile accident in question. Following this testimony, the prosecutor showed Brown a typed statement which Brown acknowledged having signed on October 13, 1970 at the Taunton Police Station. In essence, the typed statement contradicted Brown's direct testimony concerning his and petitioner's whereabouts at or about the time of the October 6 automobile accident.

Over petitioner's objection and exception, the trial judge permitted the prosecutor to ask leading questions which essentially paraphrased the typed statement. Brown answered each of these questions in the negative, thereby refusing to recant his testimony as to where he and petitioner were on the night in question. Thereafter, the judge admitted the typed statement for the purpose of impeaching Brown's direct testimony.

During his direct examination, Brown stated repeatedly that the typed statement had not been made by him voluntarily. To the contrary, Brown testified that the statement was the product of suggestions and threats by the police at a time when he was suffering withdrawal from the use of drugs. The jury was present during the entire line of questioning involving this statement.

These events give rise to two contentions by the petitioner. The first is that by permitting the use of leading questions based on the contents of the typed statement, the truth of which Brown denied at trial, the trial judge deprived the petitioner of his right to be confronted by the witnesses against him in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution.

Petitioner's second contention is that the use of the typed statement as a factual basis for leading questions, and as a prior inconsistent statement, violated the petitioner's right to due process of law guaranteed by the Fourteenth Amendment. Petitioner's basis of contention is that the prosecution failed to establish, and the trial judge failed to make a preliminary determination in the absence of the jury, that Brown's statement to the police was made voluntarily.

A third contention, jurisdictional in nature, is that petitioner has exhausted his state remedies and, therefore, that his two substantive contentions are properly before this Court.

The Magistrate determined that petitioner had exhausted his available state remedies, but found no merit in his two substantive contentions and, therefore, recommended allowance of Respondent's Motion to Dismiss for failure to state a claim. For the reasons set forth below, we agree with the Magistrate's conclusions that petitioner has exhausted available state remedies, and that petitioner's first substantive contention involving confrontation is without merit. On the other hand, we do find merit in petitioner's second due process contention and, therefore, direct that a Writ of Habeas Corpus be issued under the terms and conditions of the accompanying order.

EXHAUSTION OF AVAILABLE STATE REMEDIES

With respect to exhaustion, we conclude that the issues now raised were before the Supreme Judicial Court, partially during oral argument and fully at pages twenty through twenty-seven of Defendant's Brief. The Supreme Judicial Court treated these issues as follows:

Furthermore, there was no error in allowing the Commonwealth to introduce Brown's statement for impeachment purposes. case cited In compliance with the requirements of G.L. c. 233, § 23, the witness was fully apprised of the time, place, and content of the prior statement, and was given full opportunity to explain it. The jury were clearly instructed that they were to consider this only as affecting the witness's credibility. Also, in his charge the judge rather elaborately reemphasized what he had previously stated to the jury in this regard. In addition, other testimony was adduced outside the Brown statement which linked the defendant to the crime. This fact distinguishes this situation from those to which the defendant has called our attention in certain cited Federal cases. cases cited

Commonwealth v. LaFrance, 1972 Adv. Sheets 177, 180-181, 278 N.E.2d 394, 397 (Opinion by Justice Reardon).

FACTUAL BASIS OF PETITIONER'S SUBSTANTIVE CONTENTIONS

A rather exhaustive exposition of the circumstances surrounding the witness Brown's testimony is a necessary prelude to a substantive analysis of petitioner's claims of constitutional error.

On direct examination, Brown testified that he had been with the petitioner at another's apartment in Taunton during the evening on which the automobile accident occurred, and that he and petitioner did not leave that apartment until 8:15 A.M. on the following morning. Tr. 136-140.

The prosecutor then inquired about a conversation which Brown had with the police on October 13, 1970. Brown testified that he was "taken down" to the Taunton police station at approximately 12:45 p. m., and at approximately 7:00 p. m. signed a statement which the police had typed out. Tr. 141-42. He testified that, prior to his signing, the police "said they didn't like something I said. And so, I wanted to go down myself, so I told them to put down what they wanted, and I would cross out anything, you know, or initial it." Tr. 143.

The trial judge then ordered Brown to approach the bench and, in response to the prosecutor's inquiry, Brown acknowledged his signature on the statement. Tr. 143. The prosecutor repeated his question as to whether Brown and petitioner had left the apartment that evening, and again Brown answered "No". Tr. 143-44. Brown denied that petitioner picked him up that evening at Andy's Market in "a dark-colored Chevrolet, four-door, hard-top sedan." Tr. 144.

Over petitioner's objection and exception, the trial judge ruled that he would allow leading questions. Tr. 145. The prosecutor then proceeded to paraphrase to the jury Brown's prior statement in the form of a series of leading questions. Tr. 146-47; see also Tr. 157-69. Brown was asked whether he knew the car was stolen; he answered that "there was no car." Tr. 145. Brown answered each of the following questions in the negative:

Did you then go to Attleboro with Mr. LaFrance in the car? When you got to Attleboro, did you notice that the friend who you went to see, his mother was home? Did you notice that? And so that you didn't stop, and rode by the house a couple of times? Did you then head back towards Taunton, through Norton, by Union Road? Did you then pick up a hitchhiker either going to Attleboro or returning, and drop him off at his home location, which is unknown to you? Did you then head towards Taunton? Did you then tell LaFrance that you wanted to get a road runner? Did you then go to sleep; and then realize that you had hit something? Did you then turn to LaFrance and say, "You just hit something." And did Pete reply to you, "Big fucking deal. I don't give a fuck"? Did you then turn down some streets which were not known to you, and come out by a cemetery at the Paul Dever School? Did you go through the school grounds and come out on Bassett Street? Did you then go down Bay Street and have Pete drop you off at Carlo's Cafe on Whittenton Street? Did you get out of the car there and go over to Joey's, because that is where you woke up the next morning?

Tr. 146-47. Brown then again asserted that he had been with petitioner "all that night." Tr. 148.

Over petitioner's objection and motion to strike Brown's testimony, the trial judge ruled that the prior statement could be used to impeach Brown's testimony. Tr. 148-49.

Before impeaching Brown with the statement, the prosecutor asked him, in the presence of the jury, if the statement was given of his "own free will, after having been advised of his rights", and Brown answered "No." Tr. 149-50. Brown then testified that he was threatened that night by police officer Dale Clark who said several times that "if it took a million years, he Clark would see Brown swing for this." Tr. 150-51. Brown asserted that he had not provided all the information that appeared in the signed statement, Tr. 153-54, but rather had told the police that night that "anything they wanted to type down there they could type to their heart's content, and I Brown would sign it so...