470 F.2d 1192 (1st Cir. 1972), 72-1160, Nelson v. Moore

Docket Nº:72-1160, 72-1161.
Citation:470 F.2d 1192
Party Name:Sammie L. NELSON, Petitioner-Appellant, v. Robert J. MOORE, Superintendent, Massachusetts Correctional Institution, Walpole, Respondent-Appellee. Doreen MOORE, Petitioner-Appellant, v. Betty Cole SMITH, Respondent-Appellee.
Case Date:December 14, 1972
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 1192

470 F.2d 1192 (1st Cir. 1972)

Sammie L. NELSON, Petitioner-Appellant,

v.

Robert J. MOORE, Superintendent, Massachusetts Correctional Institution, Walpole, Respondent-Appellee.

Doreen MOORE, Petitioner-Appellant,

v.

Betty Cole SMITH, Respondent-Appellee.

Nos. 72-1160, 72-1161.

United States Court of Appeals, First Circuit.

December 14, 1972

Argued Sept. 7, 1972.

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Charles P. Dattola, Boston, Mass., with whom Henry F. Owens, III, and Owens & Dilday, Boston, Mass., were

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on brief, for Sammie L. Nelson, appellant.

Daniel H. Kelleher, Boston, Mass., for Doreen Moore, appellant.

David A. Mills, Asst. Atty. Gen., Chief, Appellate Section, with whom Robert H. Quinn, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief Crim. Div., were on brief, for appellees.

Before COFFIN, Chief Judge, McENTEE and HAMLEY, [*] Senior Circuit Judges.

HAMLEY, Senior Circuit Judge.

Sammie L. Nelson and Doreen Moore appeal from the denial of their applications for writs of habeas corpus.

Nelson and Moore were jointly tried and convicted in a Massachusetts court on charges of committing an assault and battery with a dangerous weapon upon a fourteen-year-old girl, and of contributing to the delinquency of that minor. At the same time, Nelson was convicted of statutory rape involving this girl. The convictions were affirmed. Commonwealth v. Moore, 269 N.E.2d 636 (Mass.1971).

Nelson and Moore then individually applied to the federal district court for writs of habeas corpus. While they advanced several grounds for relief, the only grounds which concern us here are their contentions that a knife, hose and vacuum cleaner pipe, introduced in evidence at the state trial, were seized in violation of petitioners' Fourth and Fourteenth Amendment rights.

The district court referred the habeas applications to a Magistrate for evidentiary hearings and reports. The Magistrate consolidated the two proceedings, conducted an evidentiary hearing, and issued a report. The Magistrate recommended that petitioners' search and seizure contentions be rejected without prejudice on the ground that petitioners had failed to exhaust available state remedies.

The district court, after hearing objections to the Magistrate's report, adopted the recommendations of the Magistrate. Accordingly, with reference to petitioners' search and seizure points, the applications were dismissed without prejudice for failure to exhaust available state remedies. 1 This appeal followed.

The girl who was the victim of the offenses in question was a runaway who came to Boston, met Nelson and Moore and, at their invitation, moved into their apartment. Nelson provided the girl with a key to the apartment and bought her some clothes. Nelson and Moore later encouraged the girl to engage in prostitution, but in her first adventure of this kind she was arrested for soliciting a plainclothes police officer.

This made Nelson angry. He told the girl she was getting everyone into trouble and that she ought to leave. He then beat the girl with his hands, a shoe, a length of rubber hose, and a vacuum cleaner pipe. He also burned her neck with a knife heated by Moore and used it to cut a pattern on her face. That night Moore took the girl to the YWCA, where the girl spent the night. The next night the girl went back to the apartment, but Nelson beat her again and she returned to the YWCA for the night.

The girl spent the next night at the apartment. During the following evening she went out, ostensibly "to get some clothes from the laundry," but instead went to the police station and turned herself in as a runaway. Some police officers noticed the scars and marks on her face and, questioning her, learned of the beatings she had received from Nelson. The officers then asked the girl to accompany them to the apartment so

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that they could arrest Nelson for the assault and battery by means of a dangerous weapon.

The disputed search and seizure then occurred. The evidence pertaining to this issue, as presented at the trial, is summarized as follows in the opinion of the Supreme Judicial Court of Massachusetts:

"1. The seizure. There was testimony that the victim admitted the police officers to the apartment with a key given her by the male defendant, and other testimony that the male defendant opened the door before she could. One of the officers testified that they then told the male defendant he was under arrest for assault and battery by means of a dangerous weapon and informed him of his rights. The victim then picked up the knife from a counter about seven or eight feet from the male defendant and handed it to the officer. She went into the bathroom, brought out the hose, and handed it to the officer. About ten minutes later, as the patrol wagon arrived, the male defendant called to someone upstairs to give them the pipe, the officers went upstairs, and an unidentified male gave the pipe to them." 269 N.E.2d, at 638.

In the Supreme Judicial Court of Massachusetts, Nelson and Moore assigned as error the trial judge's refusal to hold a voir dire concerning the entry and search of the apartment and the seizure of the articles. Rejecting that assignment, the high Massachusetts court noted that the effort to exclude the evidence as illegally seized was made for the first time when the evidence was offered at the trial. The court held that this was not timely under Massachusetts Superior Court Rule 101B. 2 The court also noted that Nelson was fully aware that these items had been received by...

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