Donnelly v. Christoforo 8212 1570, No. 72

CourtUnited States Supreme Court
Citation40 L.Ed.2d 431,416 U.S. 637,94 S.Ct. 1868
Docket NumberNo. 72
PartiesRobert H. DONNELLY, Petitioner, v. Benjamin A. DeCHRISTOFORO. —1570
Decision Date13 May 1974

During the course of a joint first-degree murder trial, respondent's codefendant pleaded guilty to second-degree murder, of which the trial court advised the jury, stating that the trial against respondent would continue. In his summation, the prosecutor stated that respondent and his counsel had said that they 'hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.' Respondent's counsel objected and later sought an instruction that the remark was improper and should be disregarded. In its instructions, the trial court, after re-emphasizing the prosecutor's statement that his argument was not evidence, declared that the challenged remark was unsupported, and admonished the jury to ignore it. Respondent was convicted of first-degree murder. The State's highest court ruled that the prosecutor's remark, though improper, was not so prejudicial as to warrant a mistrial and that the trial court's instruction sufficed to safeguard respondent's rights. The District Court denied respondent's petition for a writ of habeas corpus. The Court of Appeals reversed, concluding that the challenged comment implied that respondent, like his codefendant, had offered to plead guilty to a lesser offense, but was refused and that the comment was thus potentially so misleading and prejudicial as to deprive respondent of a constitutionally fair trial. Held: In the circumstances of this case, where the prosecutor's ambiguous remark in the course of an extended trial was followed by the trial court's specific disapproving instructions, no prejudice amounting to a denial of constitutional due process was shown. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 distinguished. Pp. 642—648.

1st Cir., 473 F.2d 1236, reversed.

David A. Mills, Danvers, Mass., for petitioner.

Paul T. Smith, Boston, Mass., for respondent.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Respondent was tried before a jury in Massachusetts Superior Court and convicted of first-degree murder.1 The jury recommended that the death penalty not be imposed, and respondent was sentenced to life imprisonment. He appealed to the Supreme Judicial Court of Massachusetts contending, inter alia, that certain of the prosecutor's remarks during closing argument deprived him of his constitutional right to a fair trial. The Supreme Judicial Court affirmed.2 That court acknowledged that the prosecutor had made improper remarks, but determined that they were not so prejudicial as to require reversal.

Respondent then sought habeas corpus relief in the United States District Court for the District of Massa- chusetts. The District Court denied relief, stating: '(T)he prosecutor's arguments were not so prejudicial as to deprive (DeChristoforo of his constitutional right to a fair trial.'3 The Court of Appeals for the First Circuit reversed by a divided vote.4 The majority held that the prosecutor's remarks deliberately conveyed the false impression that respondent had unsuccessfully sought to plead to a lesser charge and that this conduct was a denial of due process. We granted certiorari, 414 U.S. 974, 94 S.Ct. 273, 38 L.Ed.2d 216 (1973), to consider whether such remarks, in the context of the entire trial, were sufficiently prejudicial to violate respondent's due process rights. We hold they were not and so reverse.


Respondent and two companions were indicted for the first-degree murder of Joseph Lanzi, a passenger in the car in which the defendants were riding. Police had stopped the car at approximately 4 a.m. on April 18, 1967, and had discovered Lanzi's dead body along with two firearms, one of which had been fired. A second gun, also recently fired, was found a short distance away. Respondent and one companion avoided apprehension at that time, but the third defendant was taken into custody. He later pleaded guilty to second-degree murder.

Respondent and the other defendant, Gagliardi, were finally captured and tried jointly. The prosecutor made little claim that respondent fired any shots but argued that he willingly assisted in the killing. Respondent, on the other hand, maintained that he was an innocent passenger. At the close of the evidence but before final argument, Gagliardi elected to plead guilty to a charge of second-degree murder. The court advised the jury that Gagliardi had pleaded guilty and that respondent's trial would continue.5 Respondent did not seek an instruction that the jury was to draw no inference from the plea, and no such instruction was given.

Respondent's claims of constitutional error focus on two remarks made by the prosecutor during the course of his rather lengthy closing argument to the jury. The first involved the expression of a personal opinion as to guilt, 6 perhaps offered to rebut a somewhat personalized argument by respondent's counsel. The majority of the Court of Appeals agreed with the Supreme Judicial Court of Massachusetts that this remark was improper, but declined to rest its holding of a violation of due process on that remark. 7 It turned to a second remark that it deemed 'more serious.'

The prosecutor's second challenged comment was directed at respondent's motives in standing trial: 'They (the respondent and his counsel) said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.'8 Respondent's counsel objected immediately to the statement and later sought an instruction that the remark was improper and should be disregarded.9 The court then gave the following instruction:

'Closing arguments are not evidence for your consideration. . . .

'Now in his closing, the District Attorney, I noted, made a statement: 'I don't know what they want you to do by way of a verdict. They said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.' There is no evidence of that whatsoever, of course, you are instructed to disregard that statement made by the District Attorney.

'Consider the case as though no such statement was made.'10

The majority of the Supreme Judicial Court of Massachusetts, though again not disputing that the remark was improper, held that it was not so prejudicial as to require a mistrial and further stated that the trial judge's instruction 'was sufficient to safeguard the defendant's rights.'11 Despite this decision and the District Court's denial of a writ of habeas corpus, the Court of Appeals found that the comment was potentially so misleading and prejudicial that it deprived respondent of a constitutionally fair trial.

The Court of Appeals reasoned that the jury would be naturally curious about respondent's failure to plead guilty and that this curiosity would be heightened by Gagliardi's decision to plead guilty at the close of the evidence. In this context, the court thought, the prosecutor's comment that respondent hoped for conviction on a lesser offense would suggest to the jury that respondent had sought to plead guilty but had been refused. Since the prosecutor was in a position to know such facts, the jury may well have surmised that respondent had already admitted guilt in an attempt to secure reduced charges. This, said the Court of Appeals, is the inverse of, but a parallel to, intentional suppression of favorable evidence. The prosecutor had deliberately misled the jury, and even if the statement was made thoughtlessly, 'in a first degree murder case there must be some duty on a prosecutor to be thoughtful.'12 Therefore, the District Court had erred in denying respondent's petition.


The Court of Appeals in this case noted, as petitioner urged, that its review was 'the narrow one of due process, and not the broad exercise of supervisory power that (it) would possess in regard to (its) own trial court.'13 We regard this observation as important for not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a 'failure to observe that fundamental fairness essential to the very concept of justice.' Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). We stated only this Term in Cupp. v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), when reviewing an instruction given in a state court:

'Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.'14

This is not a case in which the State has denied a defendant the benefit of a specific provision of the Bill of Rights, such as the right to counsel, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), or in which the prosecutor's remarks so prejudiced a specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).15 When specific guarantees of the Bill of Rights are involved, this Court has taken special care to assure that prosecutorial conduct in no way impermissibly infringes them. But here the claim is only that a prosecutor's remark about respondent's expectations at trial by itself so infected the trial with unfairness as to make the resulting conviction a denial of due process. We do not believe that examination of the entire proceedings in this case supports that contention.


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