Chappee v. Com. of Mass., Civ. A. No. 86-2600-Y.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Writing for the Court: Douglas D. Chappee, pro se
• Citation: 659 F. Supp. 1220
• Parties: Douglas CHAPPEE, Petitioner, v. COMMONWEALTH OF MASSACHUSETTS, Respondent.
• Docket Number: Civ. A. No. 86-2600-Y.
• Decision Date: 18 March 1987

659 F. Supp. 1220

Douglas CHAPPEE, Petitioner,
v.
COMMONWEALTH OF MASSACHUSETTS, Respondent.

Civ. A. No. 86-2600-Y.

United States District Court, D. Massachusetts.

March 18, 1987.

Douglas D. Chappee, pro se.

Kimberly Homan, Boston, Mass., for petitioner.

Frances Robinson, Asst. Atty. Gen., Criminal Bureau, Boston, Mass., for respondent.

MEMORANDUM AND ORDER ON THE PETITION FOR HABEAS CORPUS

YOUNG, District Judge.

In this petition for a writ of habeas corpus, the petitioner, Douglas Chappee ("Chappee"), challenges the exclusion by the court of three expert defense witnesses in his criminal trial in the Massachusetts Superior Court. Chappee argues that he was denied his Sixth and Fourteenth Amendment right to present a defense. This Court rules that the exclusion of the expert witnesses by the justice of the Massachusetts Superior Court violated Chappee's constitutional rights and the petition for issuance of the writ of habeas corpus is therefore granted as modified.¹

BACKGROUND

On October 26, 1984, Chappee was convicted of trafficking in cocaine in violation of Mass.Gen.Laws ch. 94C, § 32E(b)(2) (1984), and possession of cocaine with intent to distribute in violation of Mass.Gen. Laws ch. 94C, § 32A(a) (1984). Chappee was sentenced to a term of imprisonment of not less than five nor more than ten years and is currently incarcerated at the Massachusetts Correctional Institution, Norfolk. The Massachusetts Supreme Judicial Court affirmed the trafficking conviction and remanded the possession conviction to the Superior Court for the entry of an order of dismissal on the grounds that possession with intent to distribute is a lesser included offense of trafficking. Commonwealth v. Chappee, 397 Mass.

659 F. Supp. 1221

508, 492 N.E.2d 719 (1986). In this petition, Chappee challenges the trafficking conviction

At the trial, the Commonwealth called three witnesses. The first witness was Kenneth Gagnon, a chemist with the Massachusetts Department of Public Safety. Gagnon had analyzed and prepared a certificate of analysis on the white powder seized from the defendant's home. Defense counsel (not Chappee's counsel in this proceeding) had an opportunity to cross-examine Gagnon with respect to the difference between "Cocaine L," a controlled substance within the meaning of chapter 94C, and other cocaine isomers which were not proscribed by the statute. Gagnon testified that there is a division of opinion within the scientific community as to whether the tests he performed could distinguish between different cocaine isomers.

Towards the end of cross examination of Gagnon, defense counsel indicated that he intended to present his own expert witnesses. The Commonwealth objected since the names had not been provided as required by the pretrial report. According to the pretrial report, defense counsel had agreed to provide the Commonwealth with a written list of the names and addresses of proposed witnesses on or about October 21, 1983. It is undisputed that defense counsel never filed such a list or, prior to that point in the trial, attempted to notify the Commonwealth in any other fashion of the proposed expert witnesses. The Commonwealth rested its case at about 4:00 p.m. and no further trial proceedings were contemplated for that day. In the context of discussing the proceedings for the next day, counsel for the defense again indicated that he intended to call three expert witnesses. He stated their names and addresses and suggested alternative measures to minimize any possible prejudice that the Commonwealth might suffer. The court ruled, however, that it was going to exclude all the expert defense testimony.

The following day, defense counsel made an offer of proof as to the substance of the proposed testimony. He stated that the witnesses were offered to prove that the tests performed by the Commonwealth were inadequate to distinguish between Cocaine L and the other cocaine isomers.² It was his contention that the testimony would have created reasonable doubt as to whether the substance examined was in fact the controlled substance charged.

DISCUSSION

I.

This petition raises the question of whether and under what circumstances a trial court may exclude defense witnesses in a criminal proceeding because defense counsel intentionally refrained from giving the prosecution timely notice of the witnesses' names and addresses.³ The Sixth

659 F. Supp. 1222

and Fourteenth Amendments protect a criminal defendant's right to call witnesses on his own behalf and exclusion of defense witnesses threatens that right. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 17-19, 87 S.Ct. 1920, 1922-23, 18 L.Ed.2d 1019 (1967). The Supreme Court has held, however, that the Sixth Amendment right to present a defense is not unlimited and under certain circumstances must give way to "the legitimate demands of the adversarial system." United States v. Nobles, 422 U.S. 225, 241, 95 S.Ct. 2160, 2171, 45 L.Ed.2d 141 (1975). In addition, the Supreme Court has upheld, against due process and self-incrimination challenges, state discovery rules that require a defendant to give prior notice of an alibi witness, at least where the defendant receives reciprocal discovery rights. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 55 (1970). The Supreme Court has expressly reserved, however, the question whether it is constitutional under the Sixth Amendment to enforce these discovery rules by imposing a preclusion order against a criminal defendant. Wardius v. Oregon, 412 U.S. 470, 472 n. 4, 93 S.Ct. 2208, 2211, 37 L.Ed.2d 82 n. 4 (1973); Williams v. Florida, 399 U.S. at 83 n. 14, 90 S.Ct. at 1897; Smith v. Jago, 470 U.S. 1060, 1061, 105 S.Ct. 1777, 1778, 84 L.Ed.2d 836 (1985) (White, J., dissenting from denial of certiorari)

In Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), the trial court precluded a defense investigator from testifying since refusal by defense counsel to provide the prosecution with a redacted copy of the investigator's report would have impeded the prosecution's ability to effectively cross examine the investigator. The Supreme Court upheld the preclusion stating that it was within the trial court's discretion "to assure that the jury would hear the full testimony of the investigator rather than a truncated portion favorable to respondent." Id. at 241, 95 S.Ct. at 2171. "One cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth." Id. In Nobles, then, the Supreme Court excluded testimony profferred without the guarantees of trustworthiness garnered from effective cross examination in order to preserve the integrity of the trial's truth seeking process.

Unlike Nobles, in many cases the failure of defense counsel to comply with discovery rules is unrelated to the probative value of the evidence. Exclusion under these circumstances "may lead to an unfair conviction." 2 ABA Standards for Criminal Justice § 11-4.7(a) (2d ed. 1980) ("The exclusion sanction is not recommended because its results are capricious"). The Fifth Circuit has addressed this problem by adopting an absolute rule against the exclusion of evidence to enforce discovery rules. United States v. Davis, 639 F.2d 239, 243 (5th Cir.1981). Several commentators have taken the same position. See, e.g., 2 ABA Standards for Criminal Justice § 11-4.7(a) (2d ed. 1980); Westen, The Compulsory Process Clause, 73 Mich.L. Rev. 71, 137-39 (1974); Note, The Preclusion Sanction — A Violation of the Constitutional Right to Present a Defense, 81 Yale L.J. 1342, 1364 (1972).

Other courts have balanced the government's interest in enforcing discovery rules against the defendant's Sixth Amendment right to call witnesses in its favor. See Fendler v. Goldsmith, 728 F.2d 1181, 1187-88 (9th Cir.1984); Alicea v. Gagnon, 675 F.2d 913, 923 (7th Cir.1982); Braunskill

659 F. Supp. 1223

v. Hilton, 629 F.Supp. 511, 522-23 (D.N.J.), aff'd, 808 F.2d 1515 (3d Cir.1986); United States ex rel. Enoch v. Lane, 581 F.Supp. 423, 431-32 (N.D.Ill.1984), aff'd sub nom., United States ex rel. Enoch v. Hartigan, 786 F.2d 161 (7th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1281, 89 L.Ed.2d 588 (1986); United States ex rel. Robinson v. McGinnis, 593 F.Supp. 175, 181-83 (C.D.Ill.1984), aff'd, 753 F.2d 1078 (7th Cir.1985), cert. denied, 471 U.S. 1116, 105 S.Ct. 2360, 86 L.Ed.2d 260 (1985); Hackett v. Mulcahy, 493 F.Supp. 1329, 1340 (D.N.J.1980). The factors generally considered by these courts include: (1) whether the discovery violation was willful or in bad faith; (2) the materiality of the evidence excluded; (3) the extent to which the prosecution will be surprised or prejudiced; (4) the effectiveness of less severe sanctions; and (5) whether the defendant himself knew of or cooperated in the discovery violation.⁴

The First Circuit has not addressed this precise issue but Blaikie v. Callahan, 691 F.2d 64 (1st Cir.1982) is a similar case. In Blaikie, the Massachusetts Superior Court had refused to allow the defense to reopen its case in order to present two expert witnesses. The First Circuit affirmed the district court's denial of a petition for habeas corpus, making it clear that it considered a refusal to reopen the case a substantially different question than a refusal to receive evidence offered in the regular course of trial. Id. at 67. The court held that a greater degree of prejudice must be shown under these circumstances and noted that "the core concerns of the sixth amendment were not at stake in this case." Id. at 68 n. 3. While Blaikie is clearly a different case, the First Circuit's aproach suggests that this Court should apply the balancing test to the present case.

II.

A. Standard of Review

This Court is well aware that with respect to habeas petitions, the scope of review of state court determinations by federal courts is...