Doucette v. Vose

• Decision Date: 12 December 1987
• Docket Number: No. 87-1413,87-1413
• Citation: 842 F.2d 538
• Parties: William H. DOUCETTE, Jr., Petitioner, Appellant, v. George VOSE, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 538

842 F.2d 538

William H. DOUCETTE, Jr., Petitioner, Appellant, v. George VOSE, Respondent, Appellee.

No. 87-1413.

United States Court of Appeals First Circuit.

Heard Dec. 12, 1987.

Decided March 23, 1988.

Edward Berkin with whom Kehoe, Doyle, Playter & Novick, Boston, Mass., was on brief, for petitioner, appellant.

Paula J. DeGiacomo, Asst. Atty. Gen., Crim. Bureau, with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief, for respondent, appellee.

Before BREYER and SELYA, Circuit Judges, and LAFFITTE, ^* District Judge.

BREYER, Circuit Judge.

In 1979, a Massachusetts jury convicted appellant William Doucette of first degree murder. After exhausting state remedies, he filed a habeas corpus petition in federal district court, 28 U.S.C. Sec. 2254 (1982). He claims that his conviction violated the United States Constitution primarily because the trial judge told the jury:

When the killing is caused by the intentional use of a deadly weapon, such as a knife, there arises a presumption that the killing was with malice aforethought.

In appellant's view, this instruction (combined with several others) impermissibly shifted the burden of disproving malice aforethought to the defendant. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The federal district court denied appellant's petition. We agree with the district court that federal law does not entitle appellant to issuance of the writ.

I

Massachusetts has a "contemporaneous objection" rule. Commonwealth v. Fluker, 377 Mass. 123, 131, 385 N.E.2d 256 (1979) (failure to object specifically to trial deficiency "precludes appellate review"); see also McLaughlin v. Gabriel, 726 F.2d 7, 8 (1st Cir.1984) (in Massachusetts, "defendant normally cannot challenge an allegedly defective charge unless he has objected to the specific instruction at trial"). Petitioner did not object to the giving of this instruction at trial. Thus, we can consider his claim of constitutional error only if the Commonwealth has waived its reliance on this "adequate and independent state ground" for affirming his conviction. Wainright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506-2507, 53 L.Ed.2d 594 (1977); Puleio v. Vose, 830 F.2d 1197, 1199-1200 (1st Cir.1987), petition for cert. filed (Jan. 23, 1988).

We normally find a waiver of this state ground where the state courts, after reviewing a conviction, affirm it, not on the basis of the "contemporaneous objection rule," but on the basis of their own analysis of federal law. Puleio, 830 F.2d at 1200 (waiver only occurs if court reaches "gist of the federal constitutional question ") (emphasis in original); McCown v. Callahan, 726 F.2d 1, 3 (1st Cir.) (waiver if Supreme Judicial Court conducts "detailed examination of federal law and federal cases ... necessary to decide a specific question of federal law"), cert. denied, 469 U.S. 839, 105 S.Ct. 139, 83 L.Ed.2d 78 (1984); Gibson v. Butterworth, 693 F.2d 16, 17-18 (1st Cir.1982) (evidence of waiver depends on whether examination of merits went to federal or state question). Sometimes it is difficult to determine whether or not the state courts have relied on the "contemporaneous objection rule," or on their view of federal law, particularly where, as here, the state Supreme Judicial Court exercised its special statutory power to review verdicts in capital cases, Mass.Gen.Laws ch. 278, Sec. 33E (1986), in order to determine whether there was a "substantial risk of a miscarriage of justice." Commonwealth v. Ely, 388 Mass. 69, 73-74, 444 N.E.2d 1276 (1983); see also Commonwealth v. Parker, 389 Mass. 27, 30, 33, 449 N.E.2d 316 (1983); Commonwealth v. Tavares, 385 Mass. 140, 148, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982). This special discretionary review, in a sense, always overlooks a failure to raise an objection at trial, but it does so only in the context of applying a specially stringent standard of review. We have held that the mere fact that the Supreme Judicial Court engages in such review does not automatically waive (for federal habeas purposes) its "adequate state ground." Puleio, 830 F.2d at 1200; McCown, 726 F.2d at 3-4; McLaughlin, 726 F.2d at 9; Gibson, 693 F.2d at 17 (miscarriage of justice review is "at most a 'limited relaxation' of the state's contemporaneous objection rule, insufficient to preclude the application of Wainwright " (quoting Zeigler v. Callahan, 659 F.2d 254, 271 n. 11 (1st Cir.1981))). Nonetheless, if, in the course of such review, the Supreme Judicial Court makes reasonably clear that its reasons for affirming a conviction rest upon its view of federal law, we will find a waiver. McCown, 726 F.2d at 4 ("Gibson insists upon a fairly clear showing that the state waived its procedural objection"). And, that is the case here. In our view, the Supreme Judicial Court reached, and decided, the federal issue.

Because it may be useful for the reader to see the kind of state court discussion that will lead us to find a waiver, and because the discussion clearly explains the federal law issue as of the time the Supreme Judicial Court wrote its decision, we set forth that discussion:

The defendant contends that the judge's instructions on malice and intent created a mandatory presumption in favor of guilt. Alternatively, he argues that these instructions impermissibly shifted the burden of disproving malice aforethought to the defendant. See Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 2459 (1979).... We agree that the judge's use of the word "presumption" was incorrect and certainly regrettable. Commonwealth v. Repoza, 382 Mass. 119, 132, 414 N.E.2d 591 (1980). Commonwealth v. Medina, 380 Mass. 565, 577, 404 N.E.2d 1228 (1980).... However, in the final analysis, "whether a defendant had been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction." Sandstrom v. Montana, supra, 442 U.S. at 514, 99 S.Ct. at 2454. Therefore, we have upheld the use of the word "presumption" in malice instructions where the language of the charge taken as a whole, "effectively negates any burden-shifting" and when it is clear that the presumption is not mandatory. Commonwealth v. Richards, supra, 384 Mass. at , [Mass.Adv.Sh. (1981) 1967] at 1974, 425 N.E.2d 305.

"The fact that on [one occasion] the judge lapsed into the use of the word 'presumption' when he obviously meant 'inference' [does] not detract from the otherwise thorough, accurate, and precise instructions on [malice]." Commonwealth v. McInerney, 373 Mass. 136, 150, 365 N.E.2d 815 (1977). The judge repeatedly charged the jury that the Commonwealth had to prove the case against the defendant and each element of the offense beyond a reasonable doubt. The charge defining reasonable doubt was correctly stated. The judge also correctly instructed on the presumption of innocence and that all presumptions of law independent of evidence are in favor of innocence. Listening to the charge as a whole, the jury would not understand the quoted language as creating a mandatory presumption of malice or as shifting to the defendant the burden of disproving malice.

Moreover, we see no merit in the defendant's contention that the finding language and the intent charge added to the likelihood that the jurors believed the defendant had to disprove malice. The "finding" language did not impose any burden on the defendant to introduce evidence to rebut malice aforethought. This factor, in light of the judge's charge to the jury that the "law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence," leads us to conclude that the judge's charge in this respect was free of reversible error. Also, the charge concerning intent was correct. Sandstrom v. Montana, supra, 442 U.S. at 515, 99 S.Ct. at 2454, does not invalidate the use of an entirely permissive inference or presumption which allows the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one, and which places no burden of any kind on the defendant. See Commonwealth v. Ely, 388 Mass. 69, 76, 444 N.E.2d 1276 (1983).

Commonwealth v. Doucette, 391 Mass. 443, 450-52, 462 N.E.2d 1084 (1984) (footnotes and certain citations omitted).

Although state cases are cited in this discussion, it is Sandstrom, the federal case, that is primarily at issue. See Jackson v. Amaral, 729 F.2d 41, 44-45 (1st Cir.1984) (greater the reliance on federal cases, greater the likelihood that court will find waiver); McCown, 726 F.2d at 3-4 (same). Thus, we must reach the merits of the petitioner's constitutional claim.

II

Appellant concedes that his trial failed to meet the Constitution's requirements only if the trial court's erroneous instruction might have affected the jury. But, he points out that since the Supreme Judicial Court wrote its decision, the Supreme Court of the United States has clarified the strictness of the test that courts must apply to burden-shifting instructions. In Francis v. Franklin, supra, the Court warned against too ready a judicial willingness to find that a constitutionally erroneous presumption instruction had no effect upon the jury. Rather, it said, "when there exists a reasonable possibility that the jury relied on an unconstitutional understanding of the law in reaching a guilty verdict, that verdict must be set aside." Id., 471 U.S. at 323 n. 8, 105 S.Ct. at 1976 n. 8 (emphasis added).

In light of Francis, we have reexamined the transcript of petitioner's trial. Having done so, we conclude that the Supreme Judicial Court's determination is still correct. In addition to the reasons the Supreme Judicial Court gave for concluding that the jury did not rely upon the faulty instruction, the record reveals another ground which, when added to those of...