Bundy v. Wilson, s. 86-1703
| Decision Date | 20 March 1987 |
| Docket Number | Nos. 86-1703,86-1831,s. 86-1703 |
| Citation | 815 F.2d 125 |
| Parties | Edward BUNDY, Jr., Plaintiff, Appellant, v. Richard A. WILSON, Superintendant, Cheshire County House of Correction, Defendant, Appellee. Bryan COLPITT, Plaintiff, Appellant, v. Michael CUNNINGHAM, Warden, New Hampshire State Prison, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
James E. Duggan with whom Joanne Green, Appellate Defender Program, Concord, N.H., was on brief for plaintiffs, appellants.
John S. Davis with whom Stephen E. Merrill, Atty. Gen., and Robert B. Muh, Asst. Atty. Gen., Criminal Justice Bureau, Concord, N.H., were on brief for defendants, appellees.
Before BOWNES, Circuit Judge, ALDRICH, Senior Circuit Judge and GIGNOUX, * Senior District Judge.
In these consolidated cases, convicted felony defendants, Edward Bundy, Jr., and Bryan Colpitt, challenge the constitutionality of New Hampshire's appellate process for criminal defendants. Appellants contend that their due process rights were violated because the New Hampshire Supreme Court disposed of their appeals without granting them access to an adequate trial record and a meaningful opportunity to persuade the court that their appeals should be accepted.
Appellant Bryan Colpitt was convicted of robbery following a two-day jury trial in Strafford County Superior Court. He was sentenced to serve two and one-half to five years in the state prison. Colpitt filed a timely notice of appeal in the New Hampshire Supreme Court. Colpitt's notice of appeal raised six issues, including the trial court's refusal to conduct a mid-trial hearing on his competency and its failure to strike three misstatements of the evidence allegedly made by the prosecution during closing argument.
Appellant Edward Bundy was convicted of automobile theft by a jury in Cheshire County Superior Court. He was sentenced to twelve months in jail, with all but thirty days suspended. Bundy filed a notice of appeal challenging the sufficiency of the evidence and the alleged encroachment of the trial judge into the province of the jury by virtue of his answering "No" to its mid-deliberation question: "Does the law read that a person has to be driving a car to be charged with theft?"
The notices of appeal filed by Bundy and Colpitt were reviewed by the New Hampshire Supreme Court. The court disposed of their petitions for review in accordance with New Hampshire Supreme Court Rule 7(1), which provides: "The supreme court may, in its discretion, decline to accept an appeal from a lower court after a decision on the merits, or may summarily dispose of such an appeal as provided in rule 25." The court chose to dispose of appellants' petitions for review by issuing a "declination of acceptance order." Such an order issues when the New Hampshire Supreme Court "does not deem it desirable to review the issues in a case...." N.H.Sup.Ct.R. 3. A declination of acceptance order disposes of a defendant's appeal without any implication regarding the court's views on the merits of the claim; it simply permits the decision of the lower court to stand undisturbed. The New Hampshire Supreme Court issues its declination of acceptance order on the basis of the notice of appeal. A transcript normally does not accompany the notice of appeal. See N.H.Sup.Ct.R. 15; Douglas, Summary Disposition: The New Hampshire Supreme Court's Innovative and Unique Approach to Appellate Case Processing, 27 N.H.B.J. 211, 215-16 (1986). 1
Both appellants sought reconsideration of the supreme court's declination of acceptance orders. Their motions were denied without explanation. They then sought habeas relief in the United States District Court for the District of New Hampshire under 28 U.S.C. Sec. 2254 (1982). Appellants advanced the same issues in their habeas petitions as they had raised in their notice of appeal to the New Hampshire Supreme Court, plus an additional claim challenging the constitutionality of the declination process.
The district court ordered the State of New Hampshire to produce a transcript of both proceedings. Both appellants, after reviewing the transcripts of their respective trials, conceded that some of the issues they had pressed to the supreme court and the district court were without merit. Colpitt, however, continued to urge that he was erroneously denied a competency hearing by the trial court. The district court, however, upheld the trial judge's refusal to hold a competency hearing, noting that this decision was "amply supported by record evidence." Bundy dropped his sufficiency of the evidence claim, but continued to assert that the trial court had impermissibly invaded the province of the jury by answering "No" to the question of whether a defendant must be driving a stolen car to be guilty of automobile theft. Bundy argued that the judge's answer constituted a resolution of the factual issue of whether Bundy exercised sufficient control over the car to be guilty of theft. The district court held that the jury's question did not reflect any uncertainty regarding a factual issue, but was merely a request for guidance "as to whether it was permissible to find [Bundy] guilty if he had not driven the automobile."
Neither Bundy nor Colpitt succeeded in persuading the district court that New Hampshire's criminal appellate process was unconstitutional, 638 F.Supp. 1277. Both appealed the district court's denial of habeas relief. The cases were consolidated by order of this court on September 12, 1986.
The fundamental issue is whether the New Hampshire Supreme Court's declination of appeals procedure comports with the strictures of due process. Appellants aver that, at a minimum, due process requires that criminal defendants whose liberty is at stake be afforded a trial transcript or sufficient substitute therefor and the right to submit a written argument to persuade the supreme court to hear their cases on the merits. Appellants contend that they cannot adequately present--nor can the supreme court fairly decide whether to accept--their appeals, without an opportunity to consult a transcript and marshal in writing the salient facts.
In its appellate brief to this court, the state has conceded the following:
(1) the New Hampshire Supreme Court misapplied its own rules in declining to review appellant Colpitt's conviction;
(2) due process principles apply to the court's system of discretionary appellate review; (3) in certain circumstances, due process requires, upon a sufficient showing of need, that an appellant be afforded an opportunity to review and present to the court relevant portions of the transcript of his trial prior to the court's decision whether to accept the appeal;
(4) appellant Colpitt, with respect to the issue of the competency hearing, made such a showing of need in his notice of appeal and his motion to reconsider declination of appeal; and
(5) the New Hampshire Supreme Court violated appellant Colpitt's rights to due process of law when it issued its declination order.
The State thus concedes that the New Hampshire Supreme Court denied appellant Colpitt due process by failing to afford him access to a transcript in order to prepare and present his request for appellate review. Moreover, the State implies that there may be other circumstances in which due process would require providing criminal defendants with a transcript in order to have a meaningful opportunity to persuade the court to accept their appeals. But while the State concedes that there will be instances in which the normal operation of New Hampshire's declination of acceptance procedure will lead to due process violations, it does not share appellants' view that there is a systemic constitutional infirmity. Indeed, the State hints that the principal cause of Colpitt's due process violation was the New Hampshire Supreme Court's "misapplication of its own rules." This is a far cry from appellants' contention that constitutional defects inhere in the regular application of those rules.
In short, the State has conceded only that, as applied to appellant Colpitt, New Hampshire's declination of acceptance procedure violates due process. The State has made no such concession with respect to appellant Bundy. His challenge to the constitutionality of New Hampshire's system of appeals for criminal defendants is unaffected by the State's concession. Thus, notwithstanding the State's posture toward appellant Colpitt, our inquiry must still focus on whether the New Hampshire declination of acceptance procedure, as presently administered, violates due process.
Virtually every state in the country, as well as the District of Columbia and the Commonwealth of Puerto Rico, grants felony criminal defendants an automatic right to at least one full appeal on the merits. 2 Most states provide criminal defendants with automatic review in an intermediate court of appeals. The supreme court in these states generally has discretion to accept cases after they have been reviewed by the intermediate court of appeals. States which do not have two tiers of appellate review provide criminal defendants with an appeal as of right to the state supreme court. Virginia and West Virginia are the only other states besides New Hampshire which do not provide felony criminal defendants with an automatic right to an appeal on the merits. The procedural protections afforded a criminal appellant in those states, however, underline the solitariness of the New Hampshire system. In Virginia and West Virginia, a criminal appeal cannot be rejected until an appellate court has fully examined the relevant portions of the record and the defendant has been given a chance to persuade a court of review, both orally and in writing, to hear the case.
New Hampshire is the only state in the nation which does not guarantee to all felony criminal defendants, at a minimum,...
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