Breest v. Perrin, Civ. No. 79-266-D

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
• Writing for the Court: Robert Breest, Frederick J. Martineau, pro se
• Citation: 495 F. Supp. 287
• Parties: Robert BREEST v. Everett I. PERRIN, Warden, New Hampshire State Prison. Frederick J. MARTINEAU v. Richard T. McCARTHY, Chairman, NH Board of Parole; NH Board of Parole.
• Decision Date: 22 August 1980
• Docket Number: 79-302-D.,Civ. No. 79-266-D

495 F. Supp. 287

Robert BREEST
v.
Everett I. PERRIN, Warden, New Hampshire State Prison.
Frederick J. MARTINEAU
v.
Richard T. McCARTHY, Chairman, NH Board of Parole; NH Board of Parole.

Civ. Nos. 79-266-D, 79-302-D.

United States District Court, D. New Hampshire.

August 22, 1980.

Robert Breest, Frederick J. Martineau, pro se.

Richard B. Michaud, Concord, N. H., for defendants.

495 F. Supp. 288

OPINION

DEVINE, Chief Judge.

These habeas corpus cases, consolidated per our Order of October 4, 1979, present the common question whether the holding in Dunn v. Perrin, 570 F.2d 21 (1st Cir.), cert. denied, 437 U.S. 910, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978) — that New Hampshire's former reasonable doubt jury instruction is constitutionally invalid — applies retroactively so as to require reversal of petitioners' convictions and new trials.

Petitioner Robert Breest was convicted of first degree murder on March 22, 1973, following a jury trial. Petitioner Frederick J. Martineau was similarly convicted of first degree murder on November 14, 1959, following a jury trial. Both petitioners have appealed unsuccessfully to the New Hampshire Supreme Court issues other than that raised herein. See State v. Breest, 116 N.H. 734, 367 A.2d 1320 (1976); State v. Nelson Martineau, 103 N.H. 478, 175 A.2d 814 (1961), cert. denied, 369 U.S. 881, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962). Petitioners' motions for new trials (State v. Breest, 118 N.H. 416, 387 A.2d 643 (1978), cert. denied, 442 U.S. 931, 99 S.Ct. 2864, 61 L.Ed.2d 300 (1979); State v. Nelson, 105 N.H. 184, 196 A.2d 52 (1963), cert. denied, 377 U.S. 1001, 84 S.Ct. 1936, 12 L.Ed.2d 1050 (1964), as well as their attempts at habeas corpus relief on both state and federal levels have met with an equal lack of success. See Breest v. Helgemoe, 117 N.H. 40, 369 A.2d 612 (1977) (re parole eligibility); Breest v. Helgemoe, 579 F.2d 95 (1st Cir.), cert. denied, 439 U.S. 933, 99 S.Ct. 327, 58 L.Ed.2d 329 (1978); Breest v. Perrin, 479 F.Supp. 495 (D.N.H.1979) (petition denied), aff'd 624 F.2d 1112 (1st Cir., 1980); Nelson v. Hancock, 210 F.Supp. 60 (D.N.H.1962) (denied for failure to exhaust state remedies); Nelson v. Hancock, 239 F.Supp. 857 (D.N.H.1965) (finding for petitioners), rev'd 363 F.2d 249 (1st Cir. 1966), cert. denied, 386 U.S. 984, 87 S.Ct. 1292, 18 L.Ed.2d 234 (1967). Petitioner Martineau was successful, however, in obtaining a change in his sentence from death to life imprisonment, and was eventually paroled. See State v. Martineau, 112 N.H. 278, 293 A.2d 766 (1972), and State ex rel. Thomson v. State Board of Parole, 115 N.H. 414, 342 A.2d 634 (1975).¹

I.

Respondents here concede that the instructions to the respective juries in petitioners' cases are substantially similar to those at issue in Dunn, supra, 570 F.2d at 23 n.1-a fact which we have confirmed from our own examination of the trial transcripts in these cases. (Breest, trial transcript, Vol. V at 1671-72; Martineau, trial transcript, Vol. XIV at 77-80.) In Dunn the First Circuit concluded that the cumulative effect of three errors that are contained in each of these charges was "to obfuscate one of the `essential elements of due process and fair treatment'": proof beyond a reasonable doubt. Id. at 25, quoting In re Winship, 397 U.S. 358, 359 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See also Tsoumas v. New Hampshire, 472 F.Supp. 1134 (D.N.H. 1979) (as to petitioner Wentworth).

Nevertheless, respondents argue that the holding in Dunn has no retroactive application in these cases. The United States Supreme Court has stated that "`where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule is given complete retroactive effect'". Hankerson v. North Carolina, 432 U.S. 233, 243, 97 S.Ct. 2339, 2345, 53 L.Ed.2d 306 (1977), quoting Ivan V. v. City of New York, 407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d

495 F. Supp. 289

659 (1974).² In Hankerson the Court determined under the above standard that its holding in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), ought to be given complete retroactive effect in a case where the jury was instructed that in order for a defendant charged with second-degree murder to excuse his act altogether, he "must prove not beyond a reasonable doubt but simply to your satisfaction that he acted in self-defense".³ Respondents contend that the Dunn decision does not similarly qualify for complete retroactive application under the above formulation, noting that "unlike the substantial error in Hankerson where the burden of proof was squarely placed upon the defendant, here, the Petitioner carried no burden of proof whatsoever." (Respondent Perrin's Memorandum of Law at 3.)⁴ As a consequence, they argue that this Court should give controlling weight to the State's reliance on the old instruction and the impact on the administration of justice. See Brown v. Louisiana, ___ U.S. ___, ___-___, 100 S.Ct. 2214, 2219-20, 65 L.Ed.2d 159 (1980). In another case we might well be faced with resolving this troubling inquiry. In the context of disposition of the cases at bar, however, it is unnecessary to determine the retroactivity of Dunn, for the State of New Hampshire has effectively insulated petitioners' convictions via enforcement of its long-standing rule that failure to object and except at trial to a jury instruction constitutes a waiver of any claim of error

II.

As noted in New Hampshire Supreme Court's per curiam opinion that disposed of the habeas corpus petitions of Breest and Martineau raising the same issue presented here, "in this State, unlike the federal rule permitting objections to suffice, we have required for decades that an objection be made and an exception taken in the event of an adverse ruling by the trial judge. This practice and custom have a statutory basis in RSA 490:10 and RSA 491:17." Martineau v. Perrin, 119 N.H. ___, 404 A.2d 1100, 1102 (1979). These statutes date back to 1901 and 1855 respectively, and a number of cases handed down in this state have relied upon this practice and custom as grounds for decision. Included among the latter are the following cases which deal specifically with jury instruction issues: Moore v. Ross, 11 N.H. 547, 557 (1841) ("If a party desire an instruction of the court upon any particular point, or that the court should give certain views of the law to the jury, and the judge omit so as to instruct the jury, the proper course is for the party to move the court to instruct, and if the court decline, he may then make the exception. But he should not lie by, until after the trial, and then take the exception when it is too late to supply the omission"); Goodrich v. Eastern Railroad, 38 N.H. 390, 396 (1859) (verdict cannot be disturbed where further requested instructions were not given, where defendants failed to except to those that were given); State v. Isabelle, 80 N.H. 191, 192,

495 F. Supp. 290

115 A. 806, 807-08 (1921) (applying in a criminal context the holding relative to instructions in a civil case); Coos Lumber Company v. Builders Lumber and Supply Co., 105 N.H. 323, 326, 199 A.2d 545, 547 (1964); State v. Meloon, 116 N.H. 669, 670, 366 A.2d 1176, 1176-77 (1976), habeas granted on other grounds, 564 F.2d 602 (1st Cir. 1977), cert. denied, 436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978)

With respect to the cases at bar, finding that neither Breest nor Martineau had objected to or excepted to the reasonable doubt charges given the juries in their respective cases, the New Hampshire Supreme Court ruled that petitioners had thus failed to preserve the issue presented for subsequent appeal and post-conviction relief.⁵ In this light, the Court dismissed the petitions. Petitioners offer several grounds why review of their cases here should not be precluded by the above holding of the New Hampshire Supreme Court.

First, petitioners argue that this situation falls within a recognized exception to the general rule set forth above, citing inter alia, Barton v. City of Manchester, 110 N.H. 494, 272 A.2d 612 (1970), and cases cited therein. Alternatively, petitioner Breest argues that the remarks made by his counsel to the trial judge constitute an objection sufficient to comply with such rule. In its per curiam opinion to these cases, the Supreme Court of New Hampshire rejected both these contentions, Martineau v. Perrin, supra, 404 A.2d at 1102. As these contentions raise matters purely of state law, we are not free to overturn rulings thereon by the highest court of the state unless it can be shown that that court applied such law arbitrarily or in a less than even-handed manner in violation of the Fourteenth Amendment.⁶ A claim to that effect was raised by petitioners in Grace v. Butterworth, No. 79-1422, slip op. (1st Cir., June 27, 1980), who complained that the Massachusetts Supreme Judicial Court had applied its holding in Commonwealth v. Ferreira, 373 Mass. 116, 364 N.E.2d 1264 (1977) (finding constitutionally inadequate the definition of `beyond a reasonable doubt' contained in the trial court's jury instructions) retroactively so as to require reversal of the convictions

495 F. Supp. 291

of defendants in another case (Commonwealth v. Garcia, ___ Mass. ___, 399 N.E.2d 460 1980) despite those defendants' failure to object at trial while denying such application to petitioners based on their similar failure to object. See ...