942 F.2d 24 (1st Cir. 1991), 91-1128, Clark v. Moran

Docket Nº:91-1128.
Citation:942 F.2d 24
Party Name:Sidney A. CLARK, Petitioner, Appellant, v. John MORAN, etc., Respondent, Appellee.
Case Date:August 09, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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942 F.2d 24 (1st Cir. 1991)

Sidney A. CLARK, Petitioner, Appellant,


John MORAN, etc., Respondent, Appellee.

No. 91-1128.

United States Court of Appeals, First Circuit

August 9, 1991

Heard June 5, 1991.

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Matthew F. Medeiros with whom Flanders & Medeiros, Inc., Patricia A.S. Zesk and Edwards & Angell, Providence, R.I., were on brief for appellant.

Jeffrey J. Greer, Asst. Atty. Gen., with whom James E. O'Neil, Atty. Gen., Providence, R.I., was on brief for appellee.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and CAFFREY, [*] Senior Judge.

BOWNES, Senior Circuit Judge.

Petitioner Sidney Clark was convicted in 1976 by a jury in Rhode Island Superior Court of second-degree murder for the 1974 stabbing death of Claude Saunders. He is currently serving a life sentence at the Adult Correctional Institute ("ACI") in Rhode Island and, having exhausted his state remedies, has sought habeas corpus relief pursuant to 28 U.S.C. § 2254. His habeas petition was denied by the United States District Court for the District of Rhode Island. 749 F.Supp. 1186. We affirm.


Claude Saunders, an ACI inmate, was stabbed to death in his cell around 5 p.m. on November 2, 1974. Saunders was housed in cell # 30 on the uppermost of three tiers (the "A Tier") of the Admission and Orientation Section ("A & O").

Sidney Clark was targeted as a suspect after another inmate, Robert Studman, came forward later that night, claiming to be a witness to the murder. Studman informed state police detectives that he had watched from the doorway of the cell while Clark stabbed Saunders. Charles Saunders, the victim's brother and another ACI inmate, also told the state police that Clark had acted threateningly toward his brother earlier in the day.

Having probable cause, the state police searched Clark's cell at around midnight on November 2 and found a shoe with a bloodstain on it and also a bloodstained shirt in Clark's laundry bag. Clark was then brought to the Committing Room at ACI where a benzidine test was performed on him by State Police Lieutenants Egbert Hawes and Richard Quinn at 12:30 a.m. on November 3.

Benzidine is a chemical solution which, when mixed with sodium perborate and acetic acid, will oxidize in the presence of blood. Where blood is present, application of the solution will produce an almost instantaneous deep blue or deep blue-green

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color. Although benzidine tests are primarily performed on objects such as weapons, the tests were, at that time, being performed on persons as well, with the solution being applied directly to various parts of the body. When benzidine was applied to Clark, large "positive" (instantaneous deep blue) reactions appeared on his left hand and arm, and blue spotting occurred on his right hand and stomach. These test results were introduced at trial.

Benzidine is a carcinogen; people who have direct bodily contact with benzidine or inhale its fumes have a significantly greater risk of developing bladder cancer. This fact was not generally known either at the time that Clark's test was administered or at his ensuing trial. It was established in a subsequent civil proceeding, however, that the state police officers who administered the test, as well as Dr. DeFanti, the Director of the Rhode Island State Crime Lab, who trained the officers and provided them with the chemicals, were aware of the possible connection between benzidine and cancer in November 1974. See Clark v. Taylor, 710 F.2d 4 (1st Cir.1983). On the basis of these findings, the state concedes that Clark's constitutional rights were violated.

Clark advances two arguments in his petition for habeas relief. First, he claims that the benzidine test conducted on him violated his fourteenth amendment rights, and that the introduction of this evidence at trial constituted reversible error. Because the state concedes that Clark's due process rights were violated by the use of the test, the only question before us is whether the introduction of the test results at trial was harmless error beyond a reasonable doubt. Clark also raises a sixth amendment claim, alleging that his trial attorneys' failure to challenge the constitutionality of the benzidine test constituted ineffective assistance of counsel.

In rejecting Clark's habeas petition, the district court agreed with the state court that the introduction of the benzidine test results constituted harmless error in view of the overwhelming evidence of Clark's guilt. The district court also found, given the paucity of knowledge regarding the carcinogenic effects of benzidine at the 1976 trial and the absence of any legal precedent for a constitutional challenge upon this ground, that the performance of Clark's trial counsel fell within the "bounds of reasonableness," as established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court further determined that the introduction of such evidence did not "prejudice his defense." For the reasons discussed below, we affirm this judgment.


In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966), the Supreme Court held that when evidence has been introduced in violation of a defendant's constitutional rights, a conviction cannot stand unless the effect of this evidence is "harmless beyond a reasonable doubt." Id. at 24, 87 S.Ct. at 828. The Supreme Court also stated, however, that "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless." Id. at 23, 87 S.Ct. at 827-28. Constitutional violations in these instances require automatic reversal. Given the clear objective of the harmless error doctrine--to preserve the integrity of the trial process while conserving judicial resources--automatic reversals should be utilized sparingly. See, e.g., United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983).

In Chapman, the Supreme Court gave three examples of infractions that could require automatic reversal: the use of a coerced confession at trial, the partiality of the trial judge and the denial of defendant's right to counsel. 386 U.S. at 23 n. 8, 87 S.Ct. at 828 n. 8. Later, in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the Supreme Court suggested that conduct of law enforcement agents which was so outrageous as to "shock the conscience" might "absolutely bar the government from invoking the judicial processes to obtain a conviction." Id. at 431-32, 93 S.Ct. at 1643 (citing

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Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952)). After an extensive discussion of the factors involved, the district court determined that the constitutional violation in this case did not require an automatic reversal. We agree.

In a recent case, Arizona v. Fulminante, --- U.S. ----, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the Supreme Court retreated from its holding in Chapman and determined that the admission of a coerced confession at trial should be analyzed under the harmless error doctrine. The majority differentiated between mere "error[s] in the trial process" and "structural defects in the ... trial mechanism" which affect the "entire conduct of the trial from beginning to end," holding that only the latter require automatic reversal. Id. 111 S.Ct. at 1265. The court stated that "[t]he admission of an involuntary confession is a 'trial error' similar in both degree and kind to the erroneous admission of other types of evidence." Id. Along this vein, admission of the benzidine test results must also be considered a trial error, rather than a structural defect, and the harmless error doctrine should be applied.

In the practical application of this standard, courts have found error to be harmless when the untainted evidence, standing alone, provided "overwhelming evidence" of the defendant's guilt. See, e.g., Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969); United States v. Garcia, 905 F.2d 557, 560 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 522, 112 L.Ed.2d 533 (1990); United States v. Dyke, 901 F.2d 285, 287 (2d Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 279, 112 L.Ed.2d 233...

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