Berard v. Stoneman

• Decision Date: 08 March 1977
• Docket Number: Civ. A. No. 76-199.
• Citation: 428 F. Supp. 516
• Parties: Frank BERARD v. Kent STONEMAN, Commissioner of Corrections.
• Court: U.S. District Court — District of Vermont

428 F. Supp. 516

Frank BERARD v. Kent STONEMAN, Commissioner of Corrections.

Civ. A. No. 76-199.

United States District Court, D. Vermont.

March 8, 1977.

Peter F. Langrock, Langrock & Sperry, Middlebury, Vt., for petitioner.

William T. Keefe, Asst. Atty. Gen., Montpelier, Vt., for respondent.

MEMORANDUM AND ORDER

HOLDEN, Chief Judge.

The petitioner, Frank J. Berard, Jr., has made application for writ of habeas corpus, under 28 U.S.C. § 2254, to obtain relief from confinement pursuant to a judgment of a state court. On January 19, 1973, after a trial by jury in the Windsor County Superior Court, the petitioner was found guilty of first degree murder for the killing of Raymond Lestage. He was sentenced to life imprisonment at the state prison. He appealed the conviction to the Vermont Supreme Court, challenging the trial judge's admission of evidence of prior homicides allegedly committed by the plaintiff, the restriction of cross-examination of Linda Badore, one of the chief prosecution witnesses and the exclusion of Ms. Badore's state hospital records. The Vermont Supreme Court rejected the petitioner's contentions and found that the trial judge did not abuse his discretion with regard to either the evidentiary rulings or the scope of cross-examination. State v. Berard, 132 Vt. 138, 315 A.2d 501 (1974). The petitioner's application for a writ of certiorari to the United States Supreme Court was denied. Berard v. Vermont, 417 U.S. 950, 94 S.Ct. 3078, 41 L.Ed.2d 671 (1974). Petitioner then applied to the Windsor County Superior Court for a new trial on the grounds of the existence of newly discovered evidence and the State's use of perjured testimony at the trial. This motion was denied. (Docket No. C2-72WrCr). This denial was appealed and approved by the Vermont Supreme Court. State v. Berard, 134 Vt. 220, 356 A.2d 514 (1976). Petitioner also had brought a petition for a writ of habeas corpus in the Windsor County Superior Court, claiming a violation of his constitutional rights in the conduct of the grand jury proceedings. This petition was denied and the dismissal was affirmed on appeal. Berard v. Moeykens, 132 Vt. 597, 326 A.2d 166 (1974).

Petitioner then filed an application for a writ of habeas corpus in the U.S. District Court for the District of Vermont. This application was subsequently dismissed without prejudice on October 16, 1975, for the reason that the petitioner was in escape status when the case was called for hearing. Berard v. Davallou, Docket No. 74-211. The present application for a writ of habeas corpus was filed after the petitioner was returned to state custody. On January 3, 1977, an evidentiary hearing was held. By agreement of the parties, the case was submitted on the transcript in the State murder trial and written and oral arguments of counsel.

The petitioner alleges that his Sixth Amendment right to confrontation of witnesses was violated by the trial judge's restriction of his cross-examination of Linda Badore. Specifically, he claims that he should have been able to question Ms. Badore further on her residence since the murder, possible protective custody by the police since the murder, fears she might have had concerning the police separating her from her child, plans to publish a lengthy statement concerning the Lestage murder and, finally, any threats by armed persons made against her, false accusations made by her and fantasies experienced in the past concerning her involvement in criminal activity.

The transcript presented to this court establishes that Lestage was murdered by the petitioner and one Raymond Rebideau in the early morning hours of August 13, 1972, during the course of a purported journey from Burlington, Vermont to Boston, Massachusetts. Lestage had accepted Berard's offer of a ride to that destination in the company of Rebideau and Badore. Rebideau's separate trial and conviction is reported in State of Vermont v. Rebideau, 132 Vt. 445, 321 A.2d 58 (1974).

Of those present at the scene of the crime, only Mrs. Badore testified at the petitioner's trial. Her direct examination commenced on the morning of January 12, 1973 and was concluded at mid-afternoon. Cross-examination of this witness continued for the remainder of the day; it was resumed on January 13 and concluded on January 15, 1973, being interrupted only by the Sunday recess on January 14. The cross-examination is reported in 260 pages of transcript. In a most thorough and searching inquiry, defense counsel competently resorted to pretrial testimony given by the witness at an inquest conducted before a district judge, pursuant to 13 V.S.A. §§ 5101 et seq., a deposition taken at the instance of the defendant pursuant to V.R. Cr.P. 15, testimony presented by the witness to the grand jury and an extensive written statement made by Mrs. Badore to Sgt. Richard A. Spear of the Vermont State Police.

Needless to say, in this context of the record, the petitioner does not urge that his right to confront Linda Badore was denied, as in Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). His attack is directed to the trial court's exclusion of specific questions in certain aspects of his inquiry and, in this, he places determinant reliance on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), which was decided subsequent to petitioner's trial and the decision of the Supreme Court of Vermont which affirmed the conviction. State v. Berard, supra, 132 Vt. at 148, 315 A.2d 501 et seq.¹

The question decided in the affirmative in Davis was—"whether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness' probationary status as a juvenile delinquent when such an impeachment would conflict with a State's asserted interest in preserving the confidentiality of juvenile adjudications of delinquency." Davis v. Alaska, supra, 415 U.S. 308 at 309, 94 S.Ct. 1105 at 1107.

The petitioner contends his right of confrontation was impermissibly restricted on questions relating to the witness Badore's bias, her possible prejudice and her credibility. His claim relates to four different areas of inquiry.

Protective Custody of Witness Badore

His first claim is that he was denied the opportunity to establish that Mrs. Badore was in protective custody from August 18, 1972 to the time of trial. Defense counsel, early in cross-examination, inquired of the witness—"Since the 18th of August of this year (sic) where have you been living?" The State's objection to the question was sustained. However, a few questions later counsel became more specific:

Q. Have you been in the custody of police officers continuously since the 18th of August?

A. Yes.

The information was repeated later in the examination. Earlier in the trial Sargeant Richard A. Spear, of the Vermont State Police, had been cross-examined to the same effect. This and other instances in the record demonstrate that the thrust of the petitioner's inquiry was fully answered. The jury was adequately informed of the fact that Mrs. Badore had been in state custody prior to the trial. The petitioner asserts that Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931) is directly in point. In a federal prosecution for using the mails to defraud, a principal government witness and former employee of the accused, was asked at the start of cross-examination—"Where do you live, Mr. Bradley?" On the prosecution's objection that the question was immaterial and not proper cross-examination, the answer was excluded. The defendant sought to establish that the witness was in the custody of federal authorities. All further inquiries in this area were foreclosed, including the development that the witness' testimony could be biased because given under promise or expectation of immunity or under possible coercive effect by reason of his detention by federal officers. The opinion of the Court by Justice Stone, in reversing the conviction, without reaching any Sixth Amendment claim, points out—

The trial court cut off in limine all inquiry on a subject with respect to which the defense was entitled to a reasonable cross examination. This was an abuse of discretion and prejudicial error.

Id. at 694, 51 S.Ct. at 220 (citations omitted).

The context of Berard's trial is differently composed. The record is replete with references on both direct and cross-examination to the witness' custody and interrogation by police officers. Defense counsel was afforded the opportunity to explore this subject matter in depth.

The Child Custody

The petitioner claims his Sixth Amendment right to confront the witness Badore was violated by the trial court's restriction of his cross-examination concerning Mrs. Badore's fear that the State might deprive her of the custody of her three-month old child. The witness was asked if the petitioner ever suggested to her, in an effort to keep her from saying anything against him, that if she did, the police might do something about her baby. The question was excluded. Subsequently, the witness was allowed to answer a question by defense counsel to the effect that she was very much concerned for the welfare of her child; that in conversations with Berard, and eventually with the police, she had in mind "the scene over her child." The witness was then asked if at some prior time, the witness' mother had made a complaint about her child. On the State's objection, the answer was excluded over the defendant's claim that the witness was afraid she would lose her child—and that this concern was "the potential motive of why this young lady would fabricate the entire story and cooperate with the police and have a better chance of keeping the child." The examiner was permitted to show that when the witness was taken from her home to the police station, her child was not...