Soulia v. O'BRIEN, Civ. No. 50-73.

Citation94 F. Supp. 764
Decision Date26 December 1950
Docket NumberCiv. No. 50-73.
PartiesSOULIA v. O'BRIEN, Warden.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

COPYRIGHT MATERIAL OMITTED

Joseph J. McGovern, Boston, Mass., for plaintiff.

Henry P. Fielding, Asst. Atty. Gen., Stephen A. Moynahan, Dist. Atty. for Western Dist., Springfield, Mass., for defendant.

FORD, District Judge.

On June 29, 1950 this court, in a memorandum decision, 91 F.Supp. 965, dismissed without prejudice an application by the petitioner, imprisoned in the Massachusetts State Prison under a sentence of death, for a writ of habeas corpus on the ground that petitioner had not applied to the Supreme Court of the United States for a writ of certiorari and, therefore, had not exhausted his "available state remedies." Darr v. Burford, 339 U.S. 200, 212, 70 S.Ct. 587.

On July 11, 1950 the petitioner applied for a writ of certiorari to review the Massachusetts state court decision in the Supreme Court of the United States and on October 23, 1950 the petition was denied. On October 26, 1950 the petitioner filed in this court a second application for habeas corpus. An order to show cause was issued returnable November 7, 1950 and at the request of both parties the petition was set down for hearing on November 28, 1950. Because execution of sentence was imminent, proceedings against the petitioner were stayed, 28 U.S.C.A. § 2251, and at the request of counsel for petitioner a writ of habeas corpus ad testificandum was issued and the petitioner was present at the hearing. He did not testify.

Upon a denial of certiorari after a state court decision upon the merits of the federal questions, a federal court will not usually re-examine on habeas corpus the questions adjudicated. White v. Ragen, 324 U.S. 760, 764, 65 S.Ct. 978, 89 L.Ed. 1348; House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; Ex parte Hawk, 321 U.S. 114, at page 118, 64 S.Ct. 448, 88 L.Ed. 572; Goodwin v. Smyth, 4 Cir., 181 F.2d 498; and cf. Schectman v. Foster, 2 Cir., 172 F.2d 339, 342. However, this court is in doubt, as pointed out in its opinion of June 29, 1950, that the Massachusetts state court reviewed and decided on their merits the federal questions presented to the court orally at the hearing on a motion for a new trial before the trial justice in the Massachusetts Superior Court and also in the hearing before the justice of the Massachusetts Supreme Court who heard the petition for allowance of an appeal to the Supreme Judicial Court of Massachusetts. Appeal was sought from the denial of the motion in the Superior Court for a new trial. Mass.G.L. Ch. 278, § 33E, as amended. No opinion was filed by either of the justices in denying these motions indicating that any federal questions were dealt with. Consequently, this court is of the opinion that it should review the facts relied on by petitioner in support of his contention that there was such a denial to him of the necessary elements of a fair trial in the Massachusetts trial court as to amount to a denial of due process of law under the provisions of the 14th Amendment.

The petitioner Soulia was indicted in the Massachusetts court for the murder of one Francis W. Hudson by shooting the latter in the back with a bullet from a rifle admittedly owned by Soulia. Soulia was convicted of murder in the first degree on April 4, 1949. The conviction was affirmed by the Massachusetts Supreme Court Com. v. Soulia, 325 Mass. 155, 89 N.E.2d 514.

The first ground relied upon by the petitioner in support of his application is that Sergeant Charles P. Van Amburgh, ballistics expert for the Commonwealth, committed perjury at the trial in the state court and the perjured testimony was knowingly used by the prosecuting district attorney to obtain his conviction. Undoubtedly this charge, if proven, would entitle the petitioner to release from his present custody. Pyle v. State of Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791.

Van Amburgh.

Witness Van Amburgh is, and was at the time of trial, in charge of the Bureau of Ballistics of the Department of Public Safety, Massachusetts State Police, and had been in charge of that department since 1943. He succeeded his father, Captain Charles J. Van Amburgh, who was a nationally known ballistics expert and with whom the witness was associated as an assistant since 1931. The witness testified that on November 23, 1948 he received a bullet jacket and some bullet fragments from one Lieutenant Walker, a Doctor of Chemistry and Chief of the Chemistry Laboratory of the State Police. Lt. Walker testified he received the jacket and bullet fragments from Dr. Richard Ford, a medical examiner for Suffolk County and a member of the faculty of the Harvard Medical School, who testified he removed the bullet jacket and bullet fragments from the body of the deceased. Also present at the autopsy was Dr. Lorenzo A. Remy, medical examiner for the Chicopee district of Hampden County. He corroborated Dr. Ford and further testified that both he and Dr. Ford turned one large piece of a bullet jacket, four small fragments of a bullet jacket, and bullet fragments over to Lt. Walker at the time the autopsy was performed on November 23, 1948. The large piece of the bullet jacket, other fragments of the bullet jacket, and a lead bullet fragment were produced at the trial by witness Van Amburgh. (The jacket shell was marked as Ex. 64) Also produced by Van Amburgh was a discharged shell cartridge which the evidence showed had been taken by Lt. Cotter from the rifle which Soulia had in his possession at the scene and time of the crime and which was recovered in the woods near the scene of the crime. Witness Van Amburgh further testified at the trial and at the hearing here that he fired this rifle, a model 94 Winchester, calibre 30, center fire, and recovered bullets for test and comparison purposes; that he examined the test bullets and after comparing them microscopically with the large piece of bullet jacket recovered from the deceased's body, he stated that in his opinion the bullet jacket was part of a bullet fired from Soulia's rifle. He further testified he was able to make this comparison from the class (spiral grooves in barrel) and accidental (burrs and pits caused by erosion and rust) characteristics present in the rifle barrel. The witness also testified that the discharged shell which Lt. Cotter recovered from Soulia's rifle and had been turned over to the witness by one Sergeant Ratigan, was fired from Soulia's rifle.

On cross examination Van Amburgh was asked to produce his test bullets and he produced three. He testified he shot, he believed, eight test bullets and when asked for the other five, he stated "they were of no value and I threw them away." The witness had placed a dot of ink on the nose of one of the three bullets produced and stated it was the best of the eight bullets fired for comparison purposes and the three were the "best of the eight". Because five shells and bullets were discarded, the witness was unable to match the bullets produced with three shells that were also retained and produced in court. The witness stated he selected, out of the eight bullets fired, the three shells and the three bullets he wanted to use. On re-direct examination the witness testified it was not uncommon to fire many test bullets for purpose of comparison. He also testified that the five test bullets that were discarded had the same characteristics as the three test bullets introduced in evidence and which were found on the fatal bullet jacket. Also he stated that the five discarded shells had the same characteristics imparted to them as the three shells produced in court. Witness also stated that the variation in the characteristics on fired bullets are due to the manner "the bullet conformed to the barrel as it went through, the way it took the one side as against the other side, the way the rifling was cut into the bullet * * * differences in the composition of the metal weight cause differences in markings, and that any one of the bullets might have been used for comparison with the fatal bullet, but the ones I selected were the best for the purpose."

It is with respect to this testimony given by Sergeant Van Amburgh under oath that the petitioner argues that the witness stated facts and opinions material to the issues involved in the trial of the petitioner which he knew to be false. Petitioner asks the court to make a finding of perjury committed and acquiesced in by the district attorney, because, as he says, Van Amburgh "recanted" his original testimony that the three test bullets compared microscopically with the alleged fatal bullet by stating, during cross examination, that he fired and recovered eight test bullets through the alleged fatal gun but threw five away because "they were of no value, and I threw them away." Also, the petitioner claims, he "recanted" his original testimony because he could not match the three bullets with the retained shells. Also, petitioner argues, that after an eighteen-minute recess the witness was recalled for re-direct examination and "recanted his recantation" by testifying that the five bullets and shells discarded had impressed on them the same characteristics as were on the three that were retained. Petitioner argues that during the recess, which the record shows was asked for by a juror and not by the district attorney, Sergeant Van Amburgh was "refreshed" by the district attorney; in other words, was induced by the district attorney to make the second so-called recantation. This court cannot follow the reasoning of counsel for the petitioner. It cannot even find that Van Amburgh retracted or disavowed anything he had previously testified to in his direct examination. True, because of the nature of a searching cross examination on the part of defense counsel, he was asked and did make a complete disclosure of...

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