DeChristoforo v. Donnelly, No. 72-1338.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtALDRICH, McENTEE and CAMPBELL, Circuit
Citation473 F.2d 1236
PartiesBenjamin A. DeCHRISTOFORO, Petitioner, Appellant, v. Robert H. DONNELLY, Respondent, Appellee.
Docket NumberNo. 72-1338.
Decision Date22 February 1973

473 F.2d 1236 (1973)

Benjamin A. DeCHRISTOFORO, Petitioner, Appellant,
v.
Robert H. DONNELLY, Respondent, Appellee.

No. 72-1338.

United States Court of Appeals, First Circuit.

Argued January 5, 1973.

Decided February 22, 1973.


473 F.2d 1237

Paul T. Smith, Boston, Mass., with whom Harvey R. Peters and Jeffrey M. Smith, Boston, Mass., were on brief, for petitioner, appellant.

David A. Mills, Asst. Atty. Gen., Chief, Appellate Section, with whom Robert H. Quinn, Atty. Gen., John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., and William T. Harrod, III, Winthrop, Mass., were on brief, for respondent, appellee.

Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.

ALDRICH, Senior Circuit Judge.

At four o'clock on the morning on April 18, 1967, the police drew alongside a car that had stopped in a residential area to question the four occupants. The driver, one Gagliardi, was questioned first. He left to enter a house, which he incorrectly asserted to be his own. Petitioner DeChristoforo was questioned next. After he had left the scene, ostensibly to join Gagliardi, the police discovered that the passenger in the front seat was not asleep, as they had been told, but dead. He had been shot in the head by a revolver found on the floor behind him in front of the fourth passenger, Oreto, and in the left side, next to the driver, by a revolver later found buried in the vicinity. To complete the picture, a fully loaded derringer—a small weapon of low power— was found on the floor in front of the seat behind the driver, where petitioner had been sitting. Further facts, to the extent relevant, will be mentioned later. Others may be found in the opinion of the Supreme Judicial Court dismissing petitioner's appeal. Commonwealth v. DeChristoforo, 1971 Mass.A.S. 1707, 277 N.E.2d 100.

Petitioner's absence to seek Gagliardi was extended for some fifteen months, when petitioner was discovered to have been living at his grandmother's house. Eventually he, together with Gagliardi, Oreto having previously pleaded to second degree murder and a weapons charge, were brought to trial. At the close of the evidence, in the absence of the jury, Gagliardi pleaded guilty to murder in the second degree. The trial continued and petitioner was found guilty of first-degree murder, but with a recommendation that the death penalty be not imposed. His appeal was submitted to the full Court, but failed by a

473 F.2d 1238
vote of 5-2. Thereafter petitioner sought a writ of habeas corpus in the district court. The case is here, on the state court transcript, on an appeal from an order dismissing the petition

We are concerned solely with what petitioner claims was improper closing argument by the prosecuting attorney. The Massachusetts court was unanimous that the argument was improper, but divided on the issue of its prejudicial effect. The objectionable statements fall into two categories: the prosecutor's forceful expression of his personal belief in petitioner's guilt,1 and his opinion that even petitioner expected a conviction.2

The impropriety of a prosecutor adding the weight of his personal opinion of a defendant's guilt to the scales of justice is so basic, and so frequently commented upon,3 that it is difficult today to think that even the most incompetent could do so innocently, unless possibly in a mild form that might be argued to be unintentional. The breach in this case, n.1, ante, was unmistakable and clear. Judicial censure, which might have softened the impact, was neither immediately, nor even ultimately, supplied. The Commonwealth, however, urges us to have in mind that our review is the narrow one of due process, and not the broad exercise of supervisory power that we would possess in regard to our own trial court. We realize this, and we are not surprised that research discloses no authority holding that personal endorsement of his case falling short of suggesting the prosecutor has access to undisclosed evidence, is of sufficient significance to violate due process. While, as the Massachusetts court pointed out, even a mere statement of opinion is unethical, a fact the jury unfortunately was not told, at least the jury knows that the prosecutor is an advocate and it may be expected, to some degree, to discount such remarks as seller's talk. We turn, accordingly, to defendant's second complaint, which we regard as more serious.

We have noted that when Gagliardi pleaded guilty and disappeared from the trial the jury was informed of the plea (although not of its precise character).4

473 F.2d 1239
While this may be a questionable practice, the Commonwealth says with some force that the fact of the plea, standing alone, was not detrimental and might even be said to be beneficial to petitioner, particularly where the Commonwealth argued to the jury that Oreto and Gagliardi had been the ones to fire the fatal shots, so that petitioner was, at the most, an accomplice. Fairly obviously, the jury was going to believe that at least one of the persons in the car was guilty of murder. Possibly Gagliardi's plea increased petitioner's chances of being selected out. However, from this perhaps benign, and possibly helpful factor, the prosecuting attorney turned Gagliardi's plea into a telling stroke against petitioner

A jury must always wonder to some extent why a defendant has not pleaded. When Gagliardi pleaded, drawing its attention to the matter at this important juncture, we may ask what conclusion the jury drew with respect to petitioner. There are only two alternatives. A defendant whose case reaches the jury has either not sought to plead, or he has sought to unsuccessfully. Equally, a jury must know that if he has not sought to plead, either he did not wish to plead, or he was deterred by the belief that the prosecutor would be unreceptive. In this case it was forcefully brought to its attention that the prosecutor was not unreceptive. What then?

It should require but little sophistication for a jury to realize that any defendant would seek to plead to whatever he considered the minimum possible verdict—there could be nothing to lose by not doing so. In the ordinary case, however, the jury has the full spectrum. Perhaps the defendant's hoped-for minimum is an acquittal. In this event he would not seek to plead. Maybe he is convinced that his best hope is for some intermediate verdict, in which case he would seek to plead to that, but the prosecutor has refused. The jury ordinarily does not know which, but the prosecutor knows, and the jury knows that he knows. Possibly his appraisal of petitioner's hopes could have been regarded as mere (and fair) speculation if offered by someone who was ignorant of the true situation, but the prosecutor was a known insider. Viewed in the abstract, we might have been tempted to make the same observation. In the words of the French playwright, Moliere, "What the devil was he doing in that galley?" (Bartlett, Familiar Quotations (14th ed. 1968) p. 361). The prosecutor, however, was not speaking in the abstract. The question must be,...

To continue reading

Request your trial
36 practice notes
  • U.S. v. Flaherty, Nos. 80-1782
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 12, 1981
    ...Vargas, 558 F.2d 631, 633 (1st Cir. 1977); United States v. Farnkoff, 535 F.2d 661, 668 (1st Cir. 1976); DeChristoforo v. Donnelly, 473 F.2d 1236, 1238 & n.3 (1st Cir. 1973), rev'd on other grounds, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). The reason for this rule is that such ar......
  • Bien v. Smith, No. 05CV6118 (ADS)(ARL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 19, 2008
    ...own trial court." Garcia v. Warden, Dannemora Correctional Facility, 795 F.2d 5, 7-8 (2d Cir.1986) (quoting DeChristoforo v. Donnelly, 473 F.2d 1236, 1238 (1st Cir.1973)). "A trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent to be adverse......
  • Walker v. Butterworth, Civ. A. No. 77-973-C.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 28, 1978
    ...to the denial of a constitutional right. As in Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), rev'g, 473 F.2d 1236 (1st Cir. 1973), the prosecutor's comment is essentially challenged on due process grounds. Though precedential only as a plurality opinion......
  • U.S. v. Farnkoff, No. 74-1437
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 12, 1976
    ...for a prosecutor to inject his personal opinion about a defendant's guilt into his argument before the jury. DeChristoforo v. Donnelly, 473 F.2d 1236, 1238 & n. 3 (1st Cir. 1973), rev'd on other grounds, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); United States v. Cotter, 425 F.2d 4......
  • Request a trial to view additional results
36 cases
  • U.S. v. Flaherty, Nos. 80-1782
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • November 12, 1981
    ...Vargas, 558 F.2d 631, 633 (1st Cir. 1977); United States v. Farnkoff, 535 F.2d 661, 668 (1st Cir. 1976); DeChristoforo v. Donnelly, 473 F.2d 1236, 1238 & n.3 (1st Cir. 1973), rev'd on other grounds, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). The reason for this rule is that such ar......
  • Bien v. Smith, No. 05CV6118 (ADS)(ARL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 19, 2008
    ...own trial court." Garcia v. Warden, Dannemora Correctional Facility, 795 F.2d 5, 7-8 (2d Cir.1986) (quoting DeChristoforo v. Donnelly, 473 F.2d 1236, 1238 (1st Cir.1973)). "A trial judge's intervention in the conduct of a criminal trial would have to reach a significant extent to be adverse......
  • Walker v. Butterworth, Civ. A. No. 77-973-C.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 28, 1978
    ...to the denial of a constitutional right. As in Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), rev'g, 473 F.2d 1236 (1st Cir. 1973), the prosecutor's comment is essentially challenged on due process grounds. Though precedential only as a plurality opinion......
  • U.S. v. Farnkoff, No. 74-1437
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 12, 1976
    ...for a prosecutor to inject his personal opinion about a defendant's guilt into his argument before the jury. DeChristoforo v. Donnelly, 473 F.2d 1236, 1238 & n. 3 (1st Cir. 1973), rev'd on other grounds, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); United States v. Cotter, 425 F.2d 4......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT