Walker v. Butterworth

• Decision Date: 07 June 1979
• Docket Number: No. 78-1448,78-1448
• Parties: Terrell WALKER, Petitioner, Appellant, v. Frederick BUTTERWORTH et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1074

599 F.2d 1074

Terrell WALKER, Petitioner, Appellant, v. Frederick BUTTERWORTH et al., Respondents, Appellees.

No. 78-1448.

United States Court of Appeals, First Circuit.

Argued March 14, 1979.

Decided June 7, 1979.

Stephen L. Saltonstall and Eric D. Blumenson, Boston, Mass., with whom Norman S. Zalkind, Boston, Mass., was on brief, for petitioner, appellant.

Robert S. Potters, Asst. Atty. Gen., Crim. Div., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for respondents, appellees.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE, District Judge. ^*

PETTINE, District Judge.

This appeal of a dismissal of a petition for a writ of habeas corpus, 28 U.S.C. § 2254, requires the Court to inspect the constitutional validity of evidentiary and procedural rules traditionally practiced at criminal trials in Massachusetts.

At the state court trial, the defendant, Terrell Walker, was convicted of armed robbery and first degree murder; he was found to have successfully organized, with two others, the robbery of the Suffolk Loan Company, during the course of which he shot and killed a policeman stationed therein. The government's evidence pictured Walker as the leader by showing that he dictated which store was to be robbed, supplied one partner with a weapon and instructed him in its use, arranged for the other partner to drive the getaway car, directed which jewelry display cases to open, arranged the eventual escape and admonished them not to flee prematurely.

Walker did not deny any of this. Instead, he pleaded insanity and introduced evidence both expert and lay, as to his mental condition at the time of the crime. Two doctors testified that examinations of Walker revealed a paranoid character disorder and that on the date of the homicide he was not able to conform his conduct to the law and unable to appreciate the wrongfulness of his act.

The government did not contradict the defendant's medical testimony. Instead, to prove his sanity circumstantially, it relied on the lay evidence showing Walker's calculated organization of the robbery. In addition it leaned heavily upon the "presumption of sanity", a judicially created presumption that carries evidentiary weight in Massachusetts.

Walker appealed his conviction to the Massachusetts Supreme Judicial Court; the court rejected his numerous assignments of error. Commonwealth v. Walker, 370 Mass. 548, 350 N.E.2d 678 (1976). Walker then renewed his objections in this habeas corpus petition to the federal district court. Chief Judge Caffrey agreed with much of the reasoning of the Supreme Judicial Court and denied the petition. It is this denial that is now before this court. ¹

The defendant argues as errors, the trial judge's instructions as to the "presumption of sanity" and two procedures employed in the trial as ordered by the court, I. e., that defendant personally exercise his peremptory challenges and not sit at counsel table but be confined in the "prisoner's dock" throughout the trial.

The judge followed Massachusetts practice and required defendant to exercise his peremptory challenges personally after consulting with his lawyer. Defendant's lawyer, noting that sanity was the critical issue in this case, objected to this practice. It further developed that during his closing argument, the prosecutor, in what was later described as unprofessional conduct, highlighted Walker's personal exercise of the peremptory challenges and utilized them as evidence of Walker's sanity.

Ask yourself about this particular defendant. What do you think? Do you think he knew what he was doing when he stood up there and said, "I am content with this juror? I am content with this juror? I am content with this juror?" Do you think he knew what he was doing then?

Walker's attorney also objected to this prosecutorial tactic and requested a specific cautionary instruction which was not granted. Instead, the trial judge informed the jury that the petitioner was required to make the challenges and gave a generalized instruction which noted that either lawyer's arguments were not to be considered as evidence.

Defendant's counsel likewise objected when the trial judge confined Walker to the prisoner's dock. Massachusetts practice allows a judge to utilize his discretion as to this practice and, in the present case, the court apparently required its use as it had done in all first degree murder trials. The prisoner's dock is described as being about four feet square and four feet high, open at the top so that the defendant's head and shoulders can be seen by the jury. The lawyer may freely go to the box to consult with his client.

Finally, Walker's counsel also objected to various portions of the lengthy jury charge.

At the outset of the charge, the trial judge attempted to explain to the jurors why the defendant had taken exceptions to evidentiary rulings during the trial, although the government had not. In explaining that the defendant had the right to except to a ruling in order to preserve the point for appeal, the judge noted that only the defendant had a right to an appeal; this jury instruction was accompanied by cautionary language demanding that the jury's verdict be free of surmise, conjecture, bias, or hostility. As the Massachusetts Supreme Judicial Court suggested, such mention of the appellate mechanics is unwise. Commonwealth v. Walker, 350 N.E.2d 678, 687 (1976). However, the language and context of this particular instruction evidences an intent to protect the defendant from any jury confusion or hostility that may have been aroused by the frequent taking of exceptions. Such an instruction is not unduly prejudicial and is not an error of constitutional magnitude. See Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973).

The judge began his discussion of the sanity issue by describing the conclusive effect of the "presumption of sanity" when the defendant fails to make sanity an issue. ² These comments were merely introductory and, when taken in context, might be considered superfluous, but not unduly prejudicial. Cupp v. Naughten, supra.

The judge then emphasized that the jury must "consider and look at the whole evidence regarding the mental condition of the defendant." In this vein, the judge noted that the expert testimony was valuable evidence but that the medical opinions were not binding upon the jury; as the "sole judges of the credibility and weight of all evidence on the issue of insanity", the jury "may believe, but is not compelled to believe, any . . . testimony or opinion given by an expert". The jury was also told that "(i)n assessing a defendant's mental responsibility for crime, the jury should weigh the fact that a great majority of men are sane and the probability that any particular man is sane". In applying this "presumption of sanity" to the present case, the judge reiterated "it is for the jury to determine whether or not the fact that a great majority of men are sane and the probability that any particular man is sane may be deemed to outweigh the evidential value of any expert testimony that (a person) is insane". As to the burden of persuasion on this issue, the trial judge repeatedly noted that the Commonwealth had the burden of proving Walker legally sane beyond a reasonable doubt.

Aside from the two superfluous instructions already addressed, Walker concedes that the judge's jury instruction and trial procedures fully complied with traditional Massachusetts practice and procedure. The petitioner, however, argues that the well established Massachusetts "presumption of sanity" relieves the state of its constitutional burden of proving defendant's sanity beyond a reasonable doubt. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Defendant also asserts that confinement in the "prisoner's dock" during the trial erodes a defendant's presumption of innocence. Walker finally argues that the forced personal exercise of his peremptory challenges reflected upon his sanity and violated his fifth amendment privilege against self-incrimination. We find this last contention sufficiently persuasive to require a granting of this habeas corpus petition.

The Presumption of Sanity

Exactly what constitutes a presumption is a troubling question. In an attempt to describe presumptions, commentators have likened these evidentiary creatures to "bursting bubbles" ³ and to "bats of the law flitting in the twilight". ⁴ These analogies may be more colorful than illuminating. Surveying the law of presumption, Dean McCormick noted that the "use of the term presumption is only confusing". McCormick, Evidence § 346, at 830 (1972). See also Hecht & Pinzler, Rebutting Presumptions: Order out of Chaos, 58 B.U.L.Rev. 527 (1978).

Heeding Dean McCormick's warning, the Massachusetts Supreme Judicial Court, in a recent decision, carefully defined the operation of the "presumption of sanity". Commonwealth v. Kostka, 370 Mass. 516, 350 N.E.2d 444 (1976). Massachusetts courts have long held that once sanity is an issue the burden of proof rests upon the Commonwealth to prove sanity beyond a reasonable doubt. Commonwealth v. Smith, 357 Mass. 168, 258 N.E.2d 13 (1970). The judicially created "presumption of sanity", however, aids the Commonwealth in meeting this burden because the jury is always instructed to consider the presumption of sanity when weighing the evidence. Thus, Massachusetts adopts a minority position in that the "presumption of sanity" always remains, carrying "evidential value", and may never be kept from the jury by introducing evidence of insanity. Commonwealth v. Kostka, supra, at 453. This definition of the "presumption of sanity" allows the Commonwealth to rely upon the presumption "to meet its burden even in a case where there is uncontradicted expert testimony that the defendant...