Brant v. Scafati

• Decision Date: 11 July 1969
• Docket Number: Misc. Civ. No. 68-83-J.
• Citation: 301 F. Supp. 1374
• Parties: Donald R. BRANT, Petitioner, v. Palmer C. SCAFATI, Superintendent of the Massachusetts Correctional Institution at Walpole, Respondent.
• Court: U.S. District Court — District of Massachusetts

301 F. Supp. 1374

Donald R. BRANT, Petitioner, v. Palmer C. SCAFATI, Superintendent of the Massachusetts Correctional Institution at Walpole, Respondent.

Misc. Civ. No. 68-83-J.

United States District Court D. Massachusetts.

July 11, 1969.

COPYRIGHT MATERIAL OMITTED

John M. Hyson, Boston, Mass., for the petitioner.

Robert H. Quinn, Atty. Gen., Richard L. Levine, Asst. Atty. Gen., Boston, Mass., for the respondent.

OPINION

JULIAN, District Judge.

Petitioner Donald R. Brant, a State prisoner, filed a petition for a writ of habeas corpus, 28 U.S.C. § 2241 et seq., seeking to overturn his State court conviction of larceny of a fur stole from a Springfield, Massachusetts, furrier. Petitioner was convicted on September 26, 1962, following a two-day jury trial in the Hampden County Superior Court. The Massachusetts Supreme Judicial Court affirmed. Commonwealth v. Brant, 1963, 346 Mass. 202, 190 N.E.2d 900.

Upon petitioner's request this Court appointed counsel to represent him here. An evidentiary hearing was held March 28, 1969, following which both sides filed memoranda of law.

1. Petitioner's first asserted basis for relief is his contention that he was deprived of his right under the Sixth and Fourteenth Amendments to the effective assistance of counsel in that the trial judge required petitioner to stand trial allegedly before defense counsel had sufficient time to prepare.

This issue was first raised by petitioner in the trial court by a "Motion To Postpone Trial To Prepare Defense," which was denied. The issue was repeatedly renewed during the course of trial when defense counsel, acting at the petitioner's direction, refused to cross-examine any prosecution witnesses and declined to present any defense, claiming lack of sufficient time to prepare. The issue was later presented to the Supreme Judicial Court, which upheld the trial judge's exercise of discretion in denying the motion, finding upon a review of the transcript and record that the

"facts of the crime were not particularly complicated and, in these circumstances, defence counsel's lack of information was due primarily to the defendant's apparent want of diligence in his own behalf."

Commonwealth v. Brant, supra, 346 Mass. at 204, 190 N.E.2d at 902.

Petitioner contends that this State court determination should not be presumed to be correct, 28 U.S.C. § 2254(d), because the State trial court based its decision not upon sworn testimony but rather upon oral representations of counsel for both sides. As a result, petitioner argues, the trial court's factfinding procedure was inadequate to afford a full and fair hearing, § 2254(d) (2), the material facts were not adequately developed at the State court hearing, § 2254(d) (3), and he did not receive a full, fair and adequate hearing in the State courts, § 2254(d) (7).

Petitioner therefore proceeded in this Court to present additional evidence, not presented to either State court, bearing upon petitioner's diligence in preparing for trial.

I find that petitioner has failed to establish, nor does it otherwise appear, nor does the respondent admit, the existence of any of the circumstances enumerated in paragraphs 1 through 7 of 28 U.S.C. § 2254(d) with respect to the finding by the Massachusetts Supreme Judicial Court that he was not denied a reasonable time in which to prepare a defense. I further find that at the evidentiary hearing before me petitioner failed to establish by convincing evidence that this factual determination by the State court was erroneous. Therefore, in accordance with the provisions of 28 U.S.C. § 2254(d) the State court's determination is presumed to be correct and petitioner's claim that he was deprived of his constitutional right to the effective assistance of counsel is denied.

2. Petitioner's second asserted ground for relief is his claim that he was deprived of his right under the Sixth Amendment to be tried by an impartial jury as the result of various questions put to him by the trial judge at the arraignment and bail hearing. Petitioner alleges that he was thus required to disclose his prior prison record in the presence of the criminal jury panel from which were drawn the jurors who sat on his case.

This issue was raised before the Supreme Judicial Court which found, upon a review of the transcript, that

"these jurors were excused by the judge and jurors called originally for service in civil cases in addition to other jurors called for service in criminal cases who had not heard the colloquy were drafted for the panel from which the jury which tried the defendant was drawn." 346 Mass. at 205, 190 N.E.2d at 902.

Petitioner has suggested no reason why this determination by the State court should not be presumed to be correct, 28 U.S.C. § 2254(d), and it is therefore controlling. An independent review of the transcript, furthermore, reveals the correctness of the State court's finding and of its legal determination that petitioner was not prejudiced.¹

Petitioner's claim on this ground is therefore denied.

3. Petitioner's next claimed ground for relief is actually twofold.² The first contention is that he was deprived of his right to a fair trial guaranteed by the Fourteenth Amendment by reason of the trial judge's refusal, over objection and appropriate motion, to sever the trial of petitioner and a codefendant on the larceny charge for which he is now imprisoned from the trial of petitioner on two other indictments—one charging larceny of two lamps from a Springfield hotel, and the other charging defrauding an innkeeper. Except for the fact that all three indictments charged petitioner and involved crimes alleged to have occurred in the same city on or about the same day, the three indictments had nothing else in common.³

Petitioner raised this contention in the Supreme Judicial Court, which rejected it without discussion. For purposes of exhausting State remedies that is sufficient. See Sokol, Handbook of Federal Habeas Corpus, (1965), § 23, p. 123. Ellis v. New Jersey, 1967, D.N.J., 282 F.Supp. 298, 300-301, cert. denied, 1968, 392 U.S. 938, 88 S.Ct. 2312, 20 L.Ed.2d 1397. This Court, however, need not reach the questions whether the denial of the severance motion was prejudicial and, if so, whether the prejudice assumed constitutional significance. For the transcript reveals that the trial court, with the petitioner's consent given after he had consulted with his counsel, granted a mistrial as to the other two charges at the commencement of the second day of trial.⁴ This claim therefore is rejected.

The second half of petitioner's contention, however, is that he was denied a fair trial as the result of the trial court's accepting a plea of guilty from petitioner's codefendant during the trial and in the presence of the jury.⁵ This contention also was squarely raised before the Supreme Judicial Court and dismissed as being "without merit" without further discussion. Commonwealth v. Brant, supra, 346 Mass. at 205, 190 N.E.2d 900.

This claim raises a "substantial issue," Casados v. United States, 1962, 5 Cir., 300 F.2d 845, 848, cert. denied, 1963, 373 U.S. 938, 83 S.Ct. 1543, 10 L.Ed.2d 693, because of the "real danger" in cases involving joint acts that the jury will infer that the remaining codefendant, who has not changed his plea, is guilty also. United States v. Dardi, 1964, 2 Cir., 330 F.2d 316, 333, cert. denied, 1964, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50, and, Gravis v. United States, 1964, 379 U.S. 869, 85 S.Ct. 117, 13 L.Ed.2d 73; United States v. Kimbrew, 1967, 6 Cir., 380 F.2d 538, 540. "The potential prejudice of such an occurrence is obvious * * *." Hudson v. North Carolina, 1960, 363 U.S. 697, 702, 80 S.Ct. 1314, 1317, 4 L.Ed.2d 1500.

Since the guilty plea by petitioner's codefendant was clearly not admissible as evidence against petitioner,⁶ defense counsel's failure to object or to ask for cautionary instructions is surprising. Freije v. United States, 1967, 1 Cir., 386 F.2d 408 (dictum). On the other hand, the well-developed rule governing federal criminal trials permits the jury to be apprised of a codefendant's guilty plea, either through the codefendant's testimony⁷ or through remarks by the trial judge⁸ or even as the result of witnessing the plea in open court,⁹provided the court instructs the jury that the plea cannot form the basis of any inference as to the guilt of the remaining defendant.

With one exception, however, the federal cases have uniformly dealt with this rule as one of federal criminal procedure rather than as one grounded on constitutional interpretation. Even the Supreme Court in Hudson v. North Carolina, supra, was content to emphasize North Carolina decisions as foundation for the rule without alluding to any overriding federal constitutional principle compelling the result. 363 U.S. at 702, 80 S.Ct. 1314. Only in Bearden v. United States, 1968, 5 Cir., 403 F.2d 782, cert. denied, 1969, 393 U.S. 1111, 89 S.Ct. 920, 21 L. Ed.2d 808, was the issue raised and treated as one of possibly constitutional proportions, and there the error was held under the circumstances to have been "harmless beyond a reasonable doubt" under Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

This Court is therefore of the opinion that, whatever prejudice, if any, stemmed from the trial court's having permitted petitioner's codefendant to plead guilty in the jury's presence during the trial without having given cautionary instructions, was not so great as to have been of federal constitutional importance. Consequently an application for a writ of habeas corpus does not lie in this Court to consider the claim. 28 U.S.C. § 2254(a). Baranow v. Scafati, Misc. Civil No. 67-42-J (D.Mass., Sept. 29, 1967), certificate of probable cause denied (1 Cir., Nov. 3, 1967); Geagan v. Gavin, 1960, D.Mass., 181 F.Supp. 466, 470, aff'd, 1961, 1 Cir., 292 F.2d 244, cert. denied, 1962, 370 U.S. 903, 82 S.Ct. 1247, 8...