Real v. Hogan, 86-2072

• Citation: 828 F.2d 58
• Decision Date: 11 September 1987
• Docket Number: No. 86-2072,86-2072
• Parties: , 23 Fed. R. Evid. Serv. 682 John REAL, Plaintiff, Appellant, v. William T. HOGAN, et al., Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 58

828 F.2d 58

8 Fed.R.Serv.3d 822, 23 Fed. R. Evid. Serv. 682

John REAL, Plaintiff, Appellant, v. William T. HOGAN, et al., Defendants, Appellees.

No. 86-2072.

United States Court of Appeals First Circuit.

Submitted June 5, 1987.

Decided Sept. 11, 1987.

John Real, on brief pro se.

Francis G. Chase, Asst. Atty. Gen., and James M. Shannon, Atty. Gen., Boston, Mass., on brief for defendants, appellees.

Before CAMPBELL, Chief Judge, COFFIN and SELYA, Circuit Judges.

SELYA, Circuit Judge.

In this appeal, plaintiff-appellant John Real, proceeding pro se, contests the entry of judgment in favor of the appellees, defendants below, pursuant to a jury verdict. He asserts that his trial was fatally flawed in a variety of ways. After carefully considering his arguments and scrutinizing the available record, however, we find no merit in any of his contentions. Instead, it appears that Real, who was represented by able counsel in the district court, received a fair and impartial trial. Under these circumstances, we reject the appeal and affirm the judgment.

I. BACKGROUND.

In 1980, John Real, then incarcerated at the Massachusetts Correctional Institute at Walpole (MCI-Walpole), was a prime suspect in the stabbing death of another prisoner. As such, he was subjected, shortly after the killing, to a test, the object of which was to detect traces of the victim's blood on his hands. This test was performed by defendants John Nasuti (a state trooper) and Robert Sullivan, (a chemist from the Commonwealth's crime laboratory), aided by an assistant district attorney, Ruth McNiff. The laboratory was within the domain of defendant Dennis Condon, the Commissioner of Public Safety. ¹ The test consisted of rubbing Real's hands and fingernails with filter paper and, after this perfrication was completed, applying certain chemicals (benzidine and sodium perborate) to the filter paper. If blood particles were present to any degree, they would emerge when the filter paper was doused and an intense blue color reaction would immediately suffuse the paper. In Real's case, the test results were positive.

In a civil suit subsequently filed in the United States District Court for the District of Massachusetts, Real alleged that benzidine was applied not to the filter paper, but directly to his skin. In so doing, the defendants were said to have exposed him to an increased risk of contracting cancer of the bladder (benzidine being a human carcinogen), thus violating his constitutional rights. All of the state actors denied these allegations. The record leaves no doubt but that Real was vigorously represented throughout trial, and before. The jury found that, contrary to the appellant's story, benzidine was not applied directly to his skin. All of the defendants were exonerated. A motion for new trial was filed on Real's behalf by his attorney, but was denied. Real then commenced this proceeding without benefit of counsel.

We note that plaintiff has prosecuted this appeal without procuring a trial transcript. We must, therefore, examine the existing record. If it proves inconclusive, it is the appellant who must bear the brunt of an insufficient record on appeal. See Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1135 (1st Cir.1986); Sanabria v. International Longshoremen's Assoc. Local 1575, 597 F.2d 312, 313 (1st Cir.1979); Hayes v. Consolidated Service Corp., 517 F.2d 564, 566 (1st Cir.1975). See also F.R.A.P. 10(b).

II. THE ASSIGNMENTS OF ERROR.

The appellant has advanced a salmagundi of points, most of which are so transparently invalid that we need not dwell upon them. We address below a representative sampling of his main arguments.

A. New Trial.

Real protests, first and foremost, the district court's refusal to grant him a retrial. It is well settled that the district court should order a new trial only when convinced that the clear weight of the evidence so requires or that a miscarriage of justice would otherwise result. Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 6 (1st Cir.1982), cert. denied, 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1983); Rios v. Empresas Lineas Maritimas Argentinas, 575 F.2d 986, 990 (1st Cir.1978). The standard which governs our review is equally plain. We will reverse the denial of such a motion only for abuse of discretion. Codex Corp. v. Miglo Electronic Corp., 717 F.2d 622, 632 (1st Cir.1983); Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir.1966). Having assayed the record with as much care as is possible given its incompleteness, we cannot say that the district court abused its discretion in this case. Indeed, the trial appears to have presented a classic clash of conflicting accounts--exactly the sort of credibility conundrum that a jury is uniquely equipped to resolve. This specification of error comes to naught.

B. Mistrial Motion.

The appellant claims that the district court erred in denying his motion for a mistrial before any evidence was taken. In the opening statement, defendants' counsel referred to the fact that Real was a suspect in the stabbing death of a fellow inmate, and that after the stabbing, Real went back to his cell to wash blood from his hands. Real's attorney moved unsuccessfully for a mistrial. In the appellant's view, this statement was so prejudicial that the jury could not thereafter fairly pass upon his case. In a related vein, he also contends that the remarks violated the district judge's ruling granting Real's motion in limine to bar references to his past crimes and misconduct unrelated to the benzidine test. ²

A motion for mistrial is directed primarily to the sound discretion of the trial court and its ruling thereon will not be disturbed unless that discretion has been misused. United States v. Chamorro, 687 F.2d 1, 6 (1st Cir.), cert. denied, 459 U.S. 1043, 103 S.Ct. 462, 74 L.Ed.2d 613 (1982); United States v. Pappas, 611 F.2d 399, 406 (1st Cir.1979). We find no such difficulty in this instance. In the first place, the record shows that the court did not grant Real's motion in limine until after the opening statements had been made. Thus, the reference did not transgress an existing ruling. And in any event, it likely fell within the pale staked out by the limitation. See supra n. 2.

In the second place, it does not seem unreasonable for the district judge to have allowed defense counsel to describe the context in which the benzidine test was administered, even though that context involved a murder of which Real was suspected. Real does not contest that what counsel said was accurate, and comported with the evidence subsequently proffered. In kindred settings, details of illegal acts, including murder, have been allowed, in the district court's discretion, to show the chain of events forming the context. E.g., United States v. Moreno Morales, 815 F.2d 725, 739-40 (1st Cir.1987); United States v. Mills, 704 F.2d 1553, 1559 (11th Cir.1983), cert. denied, 467 U.S. 1243, 104 S.Ct. 3517, 82 L.Ed.2d 825 (1984). We have repeatedly acknowledged that the district judge must be given considerable leeway in balancing probative value against the risk of unfair prejudice. E.g., United States v. Cintolo, 818 F.2d 980, 998 (1st Cir.1987); United States v. Moreno Morales, 815 F.2d at 739-40; United States v. Tierney, 760 F.2d 382, 388 (1st Cir.), cert. denied, 474 U.S. 843, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985); Dente v. Riddell, Inc., 664 F.2d 1, 5 (1st Cir.1981). See generally Fed.R.Evid. 403. The decision to allow the interdicted remarks was well within the ambit of this leeway. A trial is a search for truth and cannot sensibly take place in a vacuum.

Moreover, the jury was treated to far more information on the point than was contained in the opening statement--and the incremental data was considerably more detailed. For instance, the appellant admits that while cross-examining McNiff, his own lawyer elicited specifics about Real's role in the homicide which were, on any reasoned view, much more damaging. We can discern no hint of reversible error in the district court's handling of the mistrial motion.

C. Jury Selection.

Real asserts that the jury selection process was deficient in two material respects. He argues that the district court erred in refusing to ask twenty-one voir dire questions which his lawyer proposed in an effort to discover prejudice or bias on the part of prospective jurors. Yet the district court has broad discretion as to the manner in which it conducts the voir dire and the inquiries it chooses to make, subject only to the essential demands of fairness. United States v. Desmarais, 531 F.2d 632, 633 (1st Cir.1976); Goosman v. A. Duie Pyle, Inc., 320 F.2d 45, 49-50 & n. 1 (4th Cir.1963). It need not permit counsel to dominate the process, nor pose every voir dire question requested by a litigant. It is more than enough if the court covers the substance of the appropriate areas of concern by framing its own questions in its own words. Darbin v. Nourse, 664 F.2d 1109, 1113 (9th Cir.1981); United States v. Nell, 526 F.2d 1223, 1230 n. 9 (5th Cir.1976). We review the trial judge's choices in this regard only for abuse of discretion. Goosman, 320 F.2d at 49-50.

In the instant case, the appellant has provided us with no rational basis for finding that the voir dire conducted by the district court was inadequate or materially incomplete. There is nothing to suggest that, to the extent Real's proposed questions were suitable, the court did not cover substantially the same ground. Contrary to the appellant's hypothesis, the mere fact that the court elected to bypass the specific questions formulated by Real's counsel does not translate, ipso facto, into an abuse of discretion. In the absence of any meaningful indication that the district court was lax in carrying out its obligation to screen the venire for prejudice or bias, or that the jury was in fact slanted from the start, this argument must fail....