Breest v. Perrin, 79-1616
| Decision Date | 11 July 1980 |
| Docket Number | No. 79-1616,79-1616 |
| Citation | 624 F.2d 1112 |
| Parties | Robert BREEST, Petitioner, Appellant, v. Everett I. PERRIN, Jr., etc., Respondent, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Jeanne Baker, Cambridge, Mass., by appointment of the Court, with whom Baker & Fine, Cambridge, Mass., was on brief, for petitioner, appellant.
Robert Breest, pro se.
Paul W. Hodes, Asst. Atty. Gen., Concord, N.H., with whom Thomas D. Rath, Gen., Concord, N.H. was on brief, for respondent, appellee.
Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.
The chief issue presented on this appeal is whether the prosecution's acquiescence in a witness's erroneous assertion that he had not been offered any deal for his testimony constituted a denial of due process under Napue v. Illinois, 360 U.S. 264, 79 S.Ct 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Finding that it did not, we affirm the decision of the district court, 479 F.Supp. 495, and deny the petition for habeas corpus relief.
On the night of Saturday, February 27, 1971, an eighteen year old woman named Susan Randall left a Manchester, New Hampshire, restaurant with a young woman friend. Wearing a two-tone, brown fur coat, and a brown floppy hat with a dark rim, Ms. Randall parted company with her friend shortly before midnight and walked in the direction of Granite Square, Manchester. This was the last time that anyone who knew her saw her alive. Approximately three days later her partially nude and brutally beaten body was discovered on the ice twenty-five feet beneath the Merrimack River bridge in Concord, New Hampshire.
Numerous witnesses, some of whom had been in a Granite Square restaurant on the night of February 27, testified that shortly after midnight there was a girl wearing a "floppy hat, brown hat, and a fur coat" hitchhiking from Granite Square, looking for a ride east on Granite Street, in the direction where Susan Randall lived. Several of these witnesses stated that at approximately 12:45 a. m. a white car with blue upholstery stopped and picked up the girl. One witness, an auto mechanic, stated that the car was a 1964 Chevrolet Impala. Another, who drove a two-door 1964 Chevrolet Impala, stated that the car was not an Impala. One witness also testified that the driver of the car, who remained seated in the car, was a "big man", "around six feet tall; very broad shoulders", with "a big head for a man of his size".
Petitioner, who is approximately six feet tall and weighs two hundred pounds, owned and drove a white four-door 1964 Ford with blue upholstery. During the last few days of February, 1971, he was moving furniture from a former residence in Manchester to a new apartment in Lowell, Massachusetts. A Lowell neighbor testified that he assisted petitioner in unloading furniture on the night of February 27 and that shortly before 11 p. m. petitioner departed in the direction of Manchester, telling the neighbor that he was returning for another load of furniture. The neighbor also stated that petitioner had not returned by the time that he went to bed, shortly after midnight.
A Manchester woman testified that petitioner, whom she described as "disturbed, angry and belligerent" at the time, arrived at her house at approximately 11:45 p.m. February 27, saying that he wanted to speak to one of her children. She stated that she told petitioner to leave her house, since she did not want him seeing her teenage children, and that he finally left shortly after midnight, getting into his car and driving in the direction of Granite Square. The woman called the police the following Monday to complain about petitioner, telling them roughly the same story set forth in her testimony.
When questioned by the police two weeks after the homicide, petitioner told them that after unloading the furniture in Lowell late on the night of February 27, he never returned to Manchester, either that evening, or the following day. However, another witness who had been at the home of the Manchester woman corroborated her testimony that petitioner had been at her house at midnight.
On April 2, 1971, state police searched petitioner's car pursuant to a warrant. From among the millions of minute particles picked up in a vacuuming of the car, the police isolated two small horse hairs and numerous small bits of paint-like material. They also performed on the interior of the car certain chemical tests that indicated the presence of possible blood stains on the passenger side of the front seat, and they removed from the floor mat what appeared to be a dried crust of blood. Similar tests indicated the possible presence of blood stains on one of petitioner's boots. The crust, hairs and particles, along with hairs and particles removed from the victim's coat, were forwarded to the United States Alcohol, Tobacco and Firearms Bureau where they were subjected to microscopic examination, and, in the case of the hairs and particles, a process known as neutron activation analysis.
The crust was established to be blood, but its type, including whether it was animal or human, could not be conclusively determined. The forensic chemist who performed the neutron activation analysis interpreted the results as establishing that the paint chips removed from the car were from the same manufacturer and batch as those found on the victim's coat, and that the horse hairs found in the car were similar to those taken from the coat. He concluded that the victim's coat "was in contact with (petitioner's) automobile." Another forensic expert who worked for the state testified that based on the results of the various analyses there was a "high degree of probability" that "we have had contact between (the victim's) clothing and (petitioner's) car."
The defense presented in rebuttal the testimony of two other experts, one of whom was a well regarded international authority in the field of neutron activation analysis. These witnesses testified that there was insufficient evidence and background scientific data to tell whether any of the perceived relationships between the chemical make-ups of the particles and horse hairs found in the car and on the coat were significant.
Against this background of circumstantial evidence was the testimony of one David Carita. Carita stated that when he and petitioner were fellow inmates in Massachusetts 1 petitioner told him that he killed Ms. Randall. At the conclusion of Carita's direct testimony the prosecutor, in an apparent attempt to demonstrate that Carita had no motive for fabricating his testimony, asked him the following questions:
Defense counsel followed with an extensive cross-examination, the chief thrust of which was to establish a basis for convincing the jury that Carita was lying. The cross-examination focused on the fact that Carita had a history of testifying against criminals, including an organized crime chief "enforcer", that he was considered a "rat" by many convicts, and that he feared for his life. Counsel also persisted at length in attempting to get the witness to contradict or retract his statement that no inducements had been offered for his testimony. The following series of questions and answers, precipitated by Carita's statement that he originally did not want to testify because he had a "pretty good deal" in Massachusetts, represents what counsel was able to achieve in this attempt:
During the closing arguments, defense counsel returned to this line of attack, asserting that Carita must have made a deal with the state. The prosecutor, in his final argument, briefly rebutted this assertion:
"Now if someone wanted to make a deal, I, honestly, believe he's got no deal to be made. . . ."
Several years after the trial and his conviction for first degree murder, petitioner discovered that the assurances of safety for which Carita had bargained included a promise made by a New Hampshire sheriff, with the assistance of the Attorney General's office, that Carita would be provided with a new...
To continue reading
Request your trial
-
Jackson, In re
...the defendant's guilt--was "overwhelming." (United States v. Ramos Algarin, supra, 584 F.2d 562, 565; accord, Breest v. Perrin (1st Cir.1980) 624 F.2d 1112, 1116 [untainted evidence "point[s] strongly toward guilt"]; United States v. Anderson (5th Cir.1978) 574 F.2d 1347, 1356 ["strong, ind......
-
Johnston v. Love
...the judgment of the jury could not have been affected by the decision to release Griffin from prison for his safety. See Breest v. Perrin, 624 F.2d 1112, 1115 (1st Cir.) cert. denied, 449 U.S. 1020, 101 S.Ct. 585, 66 L.Ed.2d 481 (1980) (writ of habeas corpus denied on claim that prosecution......
-
Pike v. Guarino
...the same vantage point. Consequently, the district court's recension of that record will engender de novo review. See Breest v. Perrin, 624 F.2d 1112, 1115 (1st Cir.1980); 2 Childress & Davis, supra § 13.06, at 13-50. When, however, the district court has held an evidentiary hearing and mad......
-
Bragan v. Morgan
...Bagley v. Lumpkin, 798 F.2d 1297, 1302 (9th Cir.1986); United States v. Shaffer, 789 F.2d 682, 689 (9th Cir.1986); Breest v. Perrin, 624 F.2d 1112, 1116 n. 3 (1st Cir.), cert. denied, 449 U.S. 1020, 101 S.Ct. 585, 66 L.Ed.2d 481 (1980); United States v. Pope, 529 F.2d 112, 114 (9th Cir. 197......