Blaikie v. Callahan

• Decision Date: 18 October 1982
• Docket Number: No. 82-1361,82-1361
• Citation: 691 F.2d 64
• Parties: 11 Fed. R. Evid. Serv. 1294 James F. BLAIKIE, Jr., Petitioner, Appellant, v. William CALLAHAN, etc., Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 64

691 F.2d 64

11 Fed. R. Evid. Serv. 1294

James F. BLAIKIE, Jr., Petitioner, Appellant, v. William CALLAHAN, etc., Respondent, Appellee.

No. 82-1361.

United States Court of Appeals First Circuit.

Argued Sept. 17, 1982.

Decided Oct. 18, 1982.

Edward F. Harrington, with whom Sheridan, Garrahan & Lander, Framingham, Mass., and Daniel G. Harrington, Boston, Mass., were on brief, for petitioner, appellant.

Barbara A. H. Smith, Asst. Atty. Gen., Chief, Crim. Appellate Div., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for respondent, appellee.

Before DAVIS, ^* CAMPBELL and BREYER, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This is an appeal from the district court's denial of a petition for habeas corpus. The question raised is whether the sixth amendment afforded the petitioner the right to call expert witnesses to testify after he had already rested his case. We find that given the facts of this case the sixth amendment provided no such right.

The facts can be summarized briefly. Petitioner James F. Blaikie, Jr., was tried for the first degree murder of his friend, David DeWilde. At his trial Blaikie admitted shooting DeWilde at approximately 1:00 p. m. on January 14, 1975, but claimed to have done so in self-defense during a struggle over some money he owed DeWilde. Blaikie stated that shortly after the shooting, he covered DeWilde's head with a plastic bag and then dragged the body down to his basement. He claimed that only several hours later that evening, after his wife had gone to sleep, did he return to the basement and decide to bury DeWilde in a small dry well in the basement floor. He testified that he left the body in the well, covered only by some boards for about a week and then filled in the well with sand, coal, and cement.

On the final day of testimony the prosecutor asked Blaikie if he knew about rigor mortis and was aware that it set in about 10 to 18 hours after death. Blaikie replied that he knew only a little about the subject and was unaware of when it occurred.

Following Blaikie's cross-examination, the defense rested its case. On rebuttal, the prosecution recalled Dr. Nolton H. Bigelow, the medical examiner who had conducted an autopsy on DeWilde. Dr. Bigelow testified, inter alia, that rigor mortis occurs "roughly two to four hours" after death and lasts for a period of 24 to 48 hours. He further stated that while rigor mortis lasts "It is very difficult to change the position of the arms, the legs or the torso of a body." Responding to a hypothetical question, Dr. Bigelow stated that "It would be extraordinarily difficult, virtually impossible" for the body to have been buried in the dry well after 9:00 p. m. because by that time rigor mortis would have set in and prevented the body from being bent over to fit into the well. Upon cross-examination, however, Dr. Bigelow admitted that the body could have been buried as Blaikie had testified if it had been folded over before rigor mortis had set in.

After the defense counsel cross-examined Dr. Bigelow, the prosecution reexamined him as to other matters and then rested. The defense then called Blaikie back to the stand. He testified for a very short time as to the position from which he shot DeWilde. Following his cross-examination, counsel for the defense announced that the defense rested. He did not indicate that he might wish to call any further witnesses. At this point the court adjourned for the afternoon, telling the jury that closing arguments and instructions would be given in the morning.

The next morning the defense immediately moved to reopen its case so that it could present two expert witnesses who would have testified that the onset of rigor mortis varies with a number of factors but can occur up to 24 hours after death and that even if rigor mortis had set in already, the body could have been buried in the well without much difficulty. The defense stated that the witnesses were in the courtroom and ready to testify. The testimony, the defense asserted, would take no more than a half hour.

The trial court denied the defense motion without comment. Both parties then gave their closing arguments. In his argument, defense counsel reminded the jury that Dr. Bigelow had only stated that burial would be impossible if the body was flat when rigor mortis set in. Counsel asserted that there was no evidence as to the body's position prior to burial. The prosecutor then made her closing argument. She referred to Dr. Bigelow's testimony and argued that the body had been immediately buried after death, thus casting doubt on Blaikie's credibility and implying that the murder and burial had been planned in advance.

Blaikie was found guilty of first degree murder. In his appeal to the Massachusetts Supreme Judicial Court he argued that the trial court's refusal to permit him to reopen his case violated his sixth amendment right to present witnesses. The Supreme Judicial Court rejected that argument, finding that the constitutional right to call witnesses was not implicated because Blaikie had had his opportunity to present his version of the burial and because the experts he intended to call lacked personal knowledge of the facts of the case. Commonwealth v. Blaikie, 375 Mass. 601, 378 N.E.2d 1361 (1978).

Blaikie then filed a petition for habeas corpus in the federal district court. In denying the petition the court found that the excluded testimony was not relevant to the question of premeditation because there was no evidence that the body was flat before it was buried. In addition, the court noted that even if there were an error, it would have been harmless beyond a reasonable doubt because there was a substantial amount of other evidence establishing premeditation.

The sixth amendment unquestionably protects the basic right of criminal defendants to call witnesses on their own behalf. Washington v. Texas, 388 U.S. 14, 18, 87 S.Ct. 1920, 1922, 18 L.Ed.2d 1019 (1967). The protection the amendment provides is not, however, unlimited. United States v Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). The question before us is whether or not the court's refusal to allow Blaikie to reopen his case after he had rested constituted so great an infringement upon his right to call witnesses as to implicate the sixth amendment. We think not.

In describing the scope of the sixth amendment's protection, the Supreme Court has emphasized the defendant's right to be afforded reasonable opportunity to present his full case to the factfinder. In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019, the Court stated,

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecutions' to the jury so it may decide where the truth lies.

Id. at 19, 87 S.Ct. at 1923. Accordingly, courts have found the sixth amendment implicated when state evidentiary rules prevented a defendant from presenting his view of the facts. In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the Supreme Court found a constitutional violation where the state's rules of evidence prevented the defendant from informing the jury that another man had confessed to the crime. Similarly, in Pettijohn v. Hall, 599 F.2d 476 (1st Cir.), cert. denied, 444 U.S. 946, 100 S.Ct. 308, 62 L.Ed.2d 316 (1979), we found a sixth amendment violation where the trial court ruled that the defendant could not introduce evidence that an eyewitness had identified another man as the guilty party. See also McMorris v. Israel, 643 F.2d 458 (7th Cir. 1981) (unconditional prosecutorial veto over the introduction of an exculpatory polygraph examination violates the sixth amendment), cert. denied, --- U.S. ----, 102 S.Ct. 1479, 71 L.Ed.2d 684 (1982).

In the present case, however, the state court allowed Blaikie full opportunity to present his case in chief ¹ and also permitted him to offer surrebuttal evidence following Dr. Bigelow's rebuttal testimony concerning rigor mortis. Insofar as appears, Blaikie would have been allowed to present the excluded witnesses had he done so before resting. What the court refused to do was to permit a reopening of the trial after having been advised on the day before by the defense that it rested. The situation thus seems closer to that in United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141, where the defense's failure to follow certain rules resulted in the rejection of its evidence, than to the cases where the presentation of material defense evidence was forbidden outright. But cf. Alicea v. Gagnon, 675 F.2d 913 (7th Cir. 1982) (alibi notice rule violates the sixth amendment); Ronson v. Commissioner of Corrections, 604 F.2d 176 (2d Cir. 1979) (sixth amendment violation to bar the defendant from introducing evidence of insanity merely because of technical violation of notice requirement).

For a court's refusal to reopen and receive new evidence after the parties have rested to constitute a sixth amendment violation we think greater prejudice must be shown than in refusals to receive evidence offered in the regular course of a trial. Compare Pettijohn v. Hall, 599 F.2d at 480. The state has a strong interest in maintaining a stable, predictable trial...