Nelson v. Moore

• Decision Date: 14 December 1972
• Docket Number: 72-1161.,No. 72-1160,72-1160
• Citation: 470 F.2d 1192
• Parties: 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.
• Court: U.S. Court of Appeals — First Circuit

470 F.2d 1192 (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.

Argued September 7, 1972.

Decided December 14, 1972.

Charles P. Dattola, Boston, Mass., with whom Henry F. Owens, III, and Owens & Dilday, Boston, Mass., were 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 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 the police. In these circumstances, ruled the court, there was no error in the trial judge's refusal to hold a voir dire during the trial.

In their respective habeas applications, Nelson and Moore complain that they had been denied a fair state trial because of the state trial court's refusal to grant voir dire on the search and seizure question. In explanation as to why he had not made a pretrial motion to suppress, as provided in Rule 101B, Nelson stated that he mistakenly thought he was to be represented at the trial by the retained counsel who appeared for him at the probable cause hearing. For this reason, Nelson said, he refused to discuss the case with the appointed counsel who actually represented him at the trial until two days before the trial.³

The Magistrate expressed the view that since the state courts had never been given this explanation of Nelson's failure to make a pretrial suppression motion, petitioners had not exhausted their remedies as to the ground for relief based on the denial of a voir dire hearing on the admissibility of the evidence. The district court adopted this recommendation.

It may well be that if a Masachusetts state court heard Nelson's explanation it would accept it as a sufficient reason for such failure. But it must be remembered that the Supreme Judicial Court of Massachusetts referred to such failure only as a reason for rejecting Nelson's and Moore's assignments of error based on the trial court's refusal to grant a voir dire during the course of the trial.

The purpose of such a voir dire is to enable defendants to conduct an evidentiary inquiry into the legality of the seizures. An important by-product of such a procedure is that, by conducting the voir dire in the absence of the jury, possible prejudice resulting from jury knowledge of seized articles later determined to be inadmissible, is avoided.

In the case before us the latter benefit of such a voir dire was not possible because defendants did not seek a voir dire until after the seized articles had been produced in the presence of the jury, discussed by the victim from the witness stand, and received in evidence as exhibits, over objection. It was not until two days later, while a police officer was on the witness stand, and after the trial judge had overruled petitioners' objection to the question whether the witness recognized exhibit No. 2 (the knife), that counsel made their first request for a voir dire.

Voir dire at this stage of the trial could not have avoided premature exposure to the jury of the seized articles, and testimony concerning them. Nor was such exposure in any event prejudicial since, as we hereinafter determine in this opinion on the basis of full consideration of all the evidence petitioners had to submit, all but one of the articles were validly seized and clearly admissible.

Assuming that the voir dire, had it been granted, would have produced all of the evidence petitioners brought out at the hearing before the Magistrate, our determinations set out below demonstrate that the trial court would have been correct in holding all but one of the items admissible. Thus, as it turns out, petitioners have not been prejudiced by the failure to grant voir dire during the course of the trial, even assuming that their request therefor was timely.

It may be that the Magistrate was influenced in his appraisal of the importance of the lack of voir dire by his observation that, because of noncompliance with Rule 101B, the Supreme Judicial Court of Massachusetts declined to consider the search and seizure question on the merits. But a reading of the opinion of the court demonstrates that the court did consider the search and seizure question on the merits and gave explicit reasons why, in its opinion, the search and seizure were valid. 269 N.E.2d, at 638-639.⁴ It need only be added that, in the light of the innocuous character of the additional evidence pertaining to the search and seizure, developed at the Magistrate's hearing, as discussed below, it seems highly improbable that a voir dire exploration of the matter at the trial would have led to exclusion of all but one of the items.

We accordingly conclude that nothing which has come to light in this habeas proceeding, with regard to petitioners' complaint that they were not afforded a search and seizure voir dire at the state trial warranted the conclusion that petitioners had not exhausted their state remedies, or...