Balthazar v. Superior Ct. of Com. of Mass.

• Decision Date: 09 March 1977
• Docket Number: Civ. A. No. 74-5799-T.
• Citation: 428 F. Supp. 425
• Parties: Richard L. BALTHAZAR v. SUPERIOR COURT OF the COMMONWEALTH OF MASSACHUSETTS.
• Court: U.S. District Court — District of Massachusetts

428 F. Supp. 425

Richard L. BALTHAZAR v. SUPERIOR COURT OF the COMMONWEALTH OF MASSACHUSETTS.

Civ. A. No. 74-5799-T.

United States District Court, D. Massachusetts.

February 17, 1977.

Substitute Order March 9, 1977.

Prisoner's Rights Project, Susan J. Baronoff, Mass. Defenders Committee, Boston, Mass., Malvine Nathanson, William A. Nelson and Bruce R. Bono, Boston, Mass., for Balthazar.

Barbara A. H. Smith, A. A. G., Boston, Mass., for Superior Court of Com. of Mass.

OPINION

TAURO, District Judge.

This is an action for a writ of habeas corpus under 28 U.S.C. § 2241 brought by a petitioner who had been charged with having committed an "unnatural and lascivious" act in violation of Mass.Gen.Laws ch. 272, § 35; and with assault by means of a dangerous weapon in violation of Mass.Gen. Laws ch. 265, § 15B. Both charges arose out of the same incident. Following trial in the superior court he was convicted of the former charge, but was acquitted of the assault charge. His conviction for having committed an "unnatural and lascivious" act was affirmed by the Supreme Judicial Court, Commonwealth v. Balthazar, (1974) Mass., 318 N.E.2d 478. That court then denied petitioner's request for a rehearing. Subsequently, the superior court also denied petitioner's request for a new trial. Mass. Gen.Laws ch. 278, § 29.

The petitioner challenges his conviction here principally on the ground that the statute under which he was convicted is so vague as to violate due process. As a corollary to that contention, he claims that the instructions of the trial judge, on the meaning of the statute, failed to cure its vagueness and did not provide the jury with an intelligible standard against which to measure his guilt or innocence. Finally, petitioner contends that, as a matter of due process, the Supreme Judicial Court was required to remand his case for a new trial, rather than merely to affirm his conviction. He claims this entitlement to be retried because of that Court's narrowed construction of Mass.Gen.Laws ch. 272, § 35, announced in his case. Commonwealth v. Balthazar, supra.

In response, respondent asserts first, that Mass.Gen.Laws ch. 272, § 35 is not void for vagueness as it does give fair warning of the statutorily proscribed conduct. Second, it is argued that the trial judge's charge to the jury contained no reversible error. Finally, respondent suggests that petitioner's contention, that he is entitled to a new trial, was not exhausted at the state level; is not of constitutional magnitude; and was effectively waived at trial.

This court holds that petitioner has satisfied his obligation to exhaust under 28 U.S.C. § 2254. On the merits, the court holds that Mass.Gen.Laws ch. 272, § 35 was void for vagueness at the time it was applied to petitioner's conduct, in that it did not give the petitioner fair warning that his conduct was statutorily prohibited. A writ of habeas corpus will issue. The court rules further that, although unconstitutional at the time applied in petitioner's case, the challenged statute may no longer be considered impermissibly vague, the Supreme Judicial Court having recently rendered clarifying opinions which have remedied the statute's constitutional defects.¹

I Factual Background

On June 7 to 11, 1973, the defendant was tried in Norfolk Superior Court. The Commonwealth's principal witness was Eileen Lomprez, age 22, of Malden, the victim of the alleged crime. According to her testimony, she was visited at her home on Sunday, July 9, 1972, by her 16 year old sister who lived in Exeter, New Hampshire. That afternoon, a neighbor drove Lomprez and her sister, who was returning home, to a Boston bus terminal, arriving there at 3:30 p. m. They discovered that the Exeter bus did not leave until 6:00 p. m. Lomprez's sister decided to take a bus leaving for Hampton Beach, New Hampshire at 4:00. The fare to Hampton Beach was 50 cents more than the fare to Exeter. Lomprez gave all her money to her sister to meet the additional fare.

Lomprez remained with her sister until the Hampton Beach bus was scheduled to leave, because her sister did not want to remain alone in the Boston bus terminal. Her neighbor did not wait for her. No arrangements were made with the neighbor to pick her up later, nor did she ask to borrow any money for the trip home.

After her sister left, Lomprez decided to visit a friend, in hopes of borrowing money to return home. She walked down Boylston Street to Copley Square, turned right at Exeter Street, eventually reaching the corner of Exeter and Commonwealth Avenue. At that point, a light blue Volkswagen pulled up. Although Lomprez could not see the driver, she thought the car belonged to Eddie Seals, a friend from South Boston. Accordingly, when the car stopped and the driver opened the door, Lomprez got in. It was only when she sat down, closed the door and looked at the driver, that she realized that the driver was not Seals.

Recognizing her mistake, Lomprez said, "I'm sorry" and started to get out. At that point the driver pulled a hunting knife out of his pocket with his right hand and pointed it at Lomprez without touching her. He then put the knife away and drove off. They drove through the streets of Boston to an area with signs reading "Quincy" and "South Shore 128." At a Holiday Inn, they turned down a dirt road and the car stopped. At some point during the ride, Lomprez noticed that the car had a manual transmission.

Upon arriving at their destination, the driver took out his knife once again and Lomprez got out of the car and started to run. The man grabbed her and led her down a hill. He ordered her to undress, but when she refused to do so he again took out the knife and threatened to kill her. She then undressed, and the man, by again threatening to kill her, forced her to perform an act of fellatio and to put her "tongue on his backside." Afterwards he mentioned girls getting raped and killed. Lomprez started crying. They then got dressed and the man gave her a cigarette. She attempted to distract her assailant by discussing astrology. They eventually returned to his car.

Lomprez re-entered the passenger side and the man went to the driver's side. She made no attempt to run and did not scream. The driver then backed the car out of the woods and they began the return trip to Boston. En route, they had what Lomprez later termed a "friendly" conversation, including a discussion of her daughter. They tentatively agreed to meet again at the Trailways Bus station the following Saturday, at 1:30 p. m. The man then dropped Lomprez off at the Washington Street M.B. T.A. station after giving her $1.00 to get home. As the car drove away, she did not look back to see the license plate.

Lomprez arrived home at approximately 8:30 p. m. and told a friend what had happened. The following day she reported the incident to the Malden and the Boston Police. She provided a description of her alleged assailant and told police about their planned meeting later that week.

On Saturday, July 15, at approximately 1:00 p. m., the defendant was arrested by Boston police near the Trailways Bus terminal in downtown Boston. At a line-up and later at trial, Lomprez identified the defendant as her assailant.

The defendant did not testify in his own behalf. He did call Dr. A. Walter Ciani, an orthopedic surgeon. Dr. Ciani had examined the defendant on April 9, 1973, and found his right shoulder muscles to be extremely weak. Because of this condition, the defendant underwent surgery which destroyed the mobility of the shoulder joint. As a result, the shoulder blade, upper arm bone and elbow could function only as one unit. The only muscles defendant could use in that area were the shoulder muscles. These were so weak that defendant could move his right arm no more than 10 or 15 degrees in any direction. His grip in his right hand was only 20 pounds compared with 95 pounds in his left hand.

The doctor concluded that it would be impossible for defendant to raise his right arm to shoulder level and that he would be unable to place his arm around anybody's neck. This conclusion conflicted with the victim's testimony, at a probable cause hearing, that her assailant had put his arm around her neck. The doctor also stated that the defendant would have considerable difficulty operating a manual shift. He went on to say that it would be difficult for the defendant to place a knife in his jacket or pants pocket with his right hand.

Both sides stipulated that if the defendant's father were called, he would have testified that the defendant had not owned an automobile for three years; that his driver's license was limited to automatic shift cars; that his disability had existed since 1955; and that the defendant had not, to his father's knowledge, driven a car since his license had been suspended, apparently before July 1972.

No evidence was introduced as to whether Lomprez had consented to the sexual act alleged.

II Exhaustion

In the federal system, a writ of habeas corpus is only granted upon petitioner's exhaustion of available state court remedies.² This "prerequisite" or "precondition"³ is founded in principles of comity. Some ambiguity exists as to whether exhaustion is a jurisdictional prerequisite. Pitchess v. Davis, 421 U.S. 482, 95 S.Ct. 1748, 44 L.Ed.2d 317 (1975); Fay v. Noia, 372 U.S. 391, 434-35, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Brathwaite v. Manson, 527 F.2d 363, 366 (2nd Cir. 1975), cert. granted, 425 U.S. 957, 96 S.Ct. 1737, 48 L.Ed.2d 202 (1976); Donovan v. Delgado, 339 F.Supp. 446, 454 (D.P.R.1971); but see Foley v. Commonwealth, 310 F.Supp. 1330 (D.Mass. 1971). Authority is split, therefore, as to whether exhaustion can be waived by counsel. Compare Needel v. Scafati, 412 F.2d 761, 766 (1st Cir.), cert. denied, 396 U.S. 861, 90 S.Ct. 133, 24 L.Ed.2d 113 (1969), with Brathwaite v. Manson, 527 F.2d at 366.

Here, the respondent raises an exhaustion objection to only...