Chappee v. Vose, 87-1286

• Decision Date: 05 November 1987
• Docket Number: No. 87-1286,87-1286
• Citation: 843 F.2d 25
• Parties: Douglas D. CHAPPEE, Petitioner, Appellee, v. George VOSE, et al., Respondents, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 25

843 F.2d 25

56 USLW 2602

Douglas D. CHAPPEE, Petitioner, Appellee, v. George VOSE, et al., Respondents, Appellants.

No. 87-1286.

United States Court of Appeals First Circuit.

Heard Nov. 5, 1987.

Decided March 28, 1988.

Paula J. DeGiacomo, Asst. Atty. Gen., Crim. Appellate Div., with whom James M Shannon, Atty. Gen., and A. John Pappalardo, Deputy Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for respondents, appellants.

Kimberly Homan with whom Zalkind, Sheketoff, Homan, Rodriguez & Lunt, Boston, Mass., was on brief, for petitioner, appellee.

Before COFFIN, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Appellants, state correctional officials, ask us to reverse an order of the United States District Court for the District of Massachusetts granting habeas corpus relief to petitioner-appellee, Douglas D. Chappee. In our view, the recent decision in Taylor v. Illinois, --- U.S. ----, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)--a case decided by the Supreme Court after we heard oral argument in this matter--constrains us to oblige.

I. BACKGROUND

The details of Chappee's state court conviction for trafficking in cocaine have been memorialized both on direct appeal and in the federal district court. See Commonwealth v. Chappee, 492 N.E.2d 719 (Mass.1986) (Chappee I ); Chappee v. Commonwealth, 659 F.Supp. 1220 (D.Mass.1987) (Chappee II ). We need not iterate the expository factual treatment which has gone before. E.g., Chappee I, 492 N.E.2d at 720-24; Chappee II, 659 F.Supp. at 1221. Rather, we recount here only the features of the case directly relevant to the purpose at hand.

In July 1983, police conducted a warrant-backed search of petitioner's home which turned up nearly 140 grams of cocaine. Chappee was thereupon charged with various drug offenses in state superior court. During the course of routine pretrial skirmishing, Chappee's counsel executed a pretrial conference report (PCR) in which he "agreed to provide the Commonwealth in writing ... the names and addresses of proposed witnesses" by October 21, 1983. As counsel well knew, under Massachusetts law this agreement was "binding on the parties and ... [on] the subsequent course of the proceeding." Mass R.Crim.P. 11(a)(2)(A). Nevertheless, when trial got underway in October 1984, the Commonwealth had not been notified about any defense witnesses.

Petitioner waived a jury. At the bench trial, the prosecution introduced evidence through a state chemist, Gagnon, that the white powder seized from Chappee's home contained 72% cocaine and was a Class B controlled substance within the meaning of the statutes under which defendant had been charged. See Mass.Gen.Laws c. 94C, Secs. 32E(b)(2), 32A(a) (1984). On cross-examination, one of Chappee's attorneys, Theodore Simon, grilled Gagnon as to how the powder had been tested, insinuating that the particular tests could not distinguish cocaine L (a controlled substance derived from the coca leaf) from cocaine D (a compound theoretically susceptible of synthetic production, not chemically equivalent to cocaine L, and presumably, not controlled). See United States v. Orzechowski, 547 F.2d 978, 980-81 & n. 2 (7th Cir.1976) (discussing legal significance, under federal drug laws, of differences between cocaine L and cocaine D), cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977). In this fashion, Simon attempted for the first time to introduce an "isomer defense" aimed at casting doubt on whether the trafficked substances were "controlled," that is, proscribed by state drug laws. ¹ Gagnon would not yield the point; he testified that the tests performed were "generally accepted by the scientific community as appropriate tests for 'cocaine' ... [though] within the scientific community there is a division of opinion on whether those tests can distinguish between cocaine L and cocaine D." Chappee I, 492 N.E.2d at 722.

As the chemist's testimony drew to a close, Simon sought the court's permission to call three defense experts. The tactic was obviously preplanned; the witnesses, who came from distant points outside New England, were ensconced in the back of the courtroom. Counsel represented the coterie of scientists as prepared to testify that, although cocaine L is a controlled substance derived from the coca plant, other cocaine isomers (like cocaine D) are neither identical nor equivalent, and are not proscribed in the same manner. The trio would also swear, counsel said, that Gagnon's tests were inadequate to distinguish cocaine L from other isomers. In fine, as the Massachusetts Supreme Judicial Court (SJC) noted, "the defendant's experts proposed only to challenge the efficacy of the Commonwealth's testing procedures, rather than to express their own opinion of the composition of the substance." Id. at 725. The prosecution objected strenuously. It knew nothing of these savants, the defense had not served notice of intention to call a single witness (let alone three experts), and the proffer mocked applicable standards mandating reciprocal discovery. ² Nor could Chappee credibly claim surprise; the prosecutor stated, without contradiction, that the Commonwealth had produced Gagnon as a witness not for its own benefit, but "strictly as a courtesy to the defense." Id. at 723.

The superior court justice did not mince words. He found that "as a matter of fact ... the defense [had] not acted in good faith; that it [had] deliberately withheld the names of these expert witnesses for the purpose of lulling the Commonwealth into security and ... creating unfair prejudice to the disadvantage of the Commonwealth in this case." The judge thereupon rejected the proffer. See Mass.R.Crim.P. 14(c)(2) (trial judge "may in his discretion exclude evidence for noncompliance with a discovery order"). Chappee presented no defense witnesses. He was found guilty.

On direct appeal, petitioner claimed that preclusion of the experts' testimony trammelled his right to present a defense as secured by the sixth amendment to the federal Constitution. The SJC disagreed, holding preclusion appropriate under the circumstances. Chappee I, 492 N.E.2d at 724-25. It affirmed the trafficking conviction. Id. at 728. After examining Chappee's habeas application, however, the federal district court ruled that exclusion of the experts' testimony contravened the sixth amendment. Chappee II, 659 F.Supp. at 1224-30.

II. PRECLUSION AS A SANCTION

Federal courts exercise no roaming superintendence over state judicial proceedings. Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982); Lefkowitz v. Fair, 816 F.2d 17, 23 (1st Cir.1987). In habeas jurisdiction, we are to "review state convictions solely for error of constitutional stature." Puleio v. Vose, 830 F.2d 1197, 1204 (1st Cir.1987), petition for cert. filed (Jan. 23, 1988). In the last analysis, we look not to the desirability of a particular state court ruling or practice in utopian terms, but only to its constitutional implications.

A. Availability of the Sanction. The Compulsory Process Clause of the sixth amendment guarantees every criminal defendant "the right ... to have compulsory process for obtaining witnesses in his favor...." Its strictures apply to the states through the fourteenth amendment. Washington v. Texas, 388 U.S. 14, 17-19, 87 S.Ct. 1920, 1922-23, 18 L.Ed.2d 1019 (1967); Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965). The guarantee, we are quick to affirm, is a fundamental one. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973).

Be that as it may, the constitutional right to compulsory process is not absolute. "The Sixth Amendment does not confer the right to present testimony free from 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). See also Chambers, 410 U.S. at 295, 93 S.Ct. at 1046 (right of confrontation "is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process"). Indeed, the Court has recently held that, although this precious constitutional right can be offended by too free use of "a discovery sanction that entirely excludes the testimony of a material defense witness," Taylor v. Illinois, 108 S.Ct. at 653, the sixth amendment does not altogether prohibit preclusion of such testimony:

It is elementary, of course, that a trial court may not ignore the fundamental character of the defendant's right to offer the testimony of witnesses in his favor. But the mere invocation of that right cannot automatically and invariably outweigh countervailing public interests.

Id. at 655. Procedural rules mandating pretrial disclosure of witness lists--so long as seasonably promulgated, evenly balanced, and rationally related to the trial process--are at the core of the public interest. This is so precisely because such rules are, by their very nature, "designed to vindicate the principle that the 'ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.' " Id. at 653 (quoting United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974)).

It follows, then, that an accused's right to present a defense--his right to "compulsory process"--may be limited in instances where he has figuratively thumbed his nose at applicable requirements of pretrial discovery. Inasmuch as "[t]he very nature of the right requires that its effective use be preceded by deliberate planning and affirmative conduct," Taylor v. Illinois, 108 S.Ct. at 653, it balances the equation neatly to hold the defense to the condign consequences of a premeditated flouting of the rules. After all:

The principle that undergirds the defendant's right to present exculpatory evidence is also the source of essential limitations on...