Dukette v. Perrin

• Decision Date: 09 June 1983
• Docket Number: Civ. No. 83-116-D.
• Citation: 564 F. Supp. 1530
• Parties: Wilfred J. DUKETTE v. Everett I. PERRIN, Jr., Warden, New Hampshire State Prison; Gregory H. Smith, Attorney General, State of New Hampshire.
• Court: U.S. District Court — District of New Hampshire

564 F. Supp. 1530

Wilfred J. DUKETTE v. Everett I. PERRIN, Jr., Warden, New Hampshire State Prison; Gregory H. Smith, Attorney General, State of New Hampshire.

Civ. No. 83-116-D.

United States District Court, D. New Hampshire.

June 9, 1983.

Wilfred J. Dukette, pro se.

Brian T. Tucker, Asst. Atty. Gen., Concord, N.H., for defendants.

ORDER

DEVINE, Chief Judge.

Petitioner Wilfred J. Dukette, appearing pro se, has filed an amended petition for writ of habeas corpus, 28 U.S.C. § 2254, claiming that his July 7, 1980, conviction for aggravated felonious sexual assault in the Strafford County (New Hampshire) Superior Court is constitutionally infirm. Petitioner is currently serving a four-to-eight-year term at the New Hampshire State Prison. He assigns the following grounds for relief:

1. The indictment for aggravated felonious sexual assault failed to state a triable offense.

2. The photographic identification procedures conducted prior to petitioner's arrest were impermissibly suggestive and violative of due process.

3. The petitioner was denied due process when the trial court refused to give a requested instruction on the lesser included offense of simple assault when the evidence warranted the giving of the instruction.

4. The trial court's reasonable doubt instruction reduced the prosecution's burden of proof and was constitutionally invalid.

5. Instructions given, sua sponte, by the trial court during petitioner's cross examination of the prosecutrix to the effect that neither corroboration nor proof of emission was required to sustain a conviction for rape denied petitioner the right to effective cross examination of witnesses.

6. The trial court's limitations on the cross examination of the prosecutrix resulted in a denial of the Sixth Amendment right to confront and cross examine witnesses.

7. Under the totality of the circumstances, petitioner was denied a fair trial.

Exhaustion

Petitioner timely appealed his conviction to the New Hampshire Supreme Court. In a written opinion, that Court rejected petitioner's claims concerning the sufficiency of the indictment, and ruled that the trial court did not abuse its discretion in instructing the jury, mid-trial, on New Hampshire law concerning corroboration and proof of emission. State v. Dukette, 122 N.H. 336, 444 A.2d 547 (1982). It further held that petitioner's failure to object or except to the reasonable doubt instruction given, an instruction which was later held to be reversible error in State v. Aubert, 120 N.H. 634, 635-38, 421 A.2d 124, 126-27 (1980) (decided September 17, 1980), constituted a waiver of that claim, and that the procedural default barred appellate review. As to petitioner's remaining claims, the Court held that these "arguments had no merit and did not warrant further consideration". Id. 122 N.H. at 339, 444 A.2d at 549.

Petitioner then filed a motion for rehearing or, in the alternative, a petition for writ of habeas corpus directed to the original jurisdiction of the New Hampshire Supreme Court. Petitioner specifically raised the argument, only latent in his original appeal, that the trial court's failure to give the requested instruction on the lesser included offense of simple assault constituted a violation of due process of law contrary to the Fourteenth Amendment of the United States Constitution, as interpreted by the United States Supreme Court in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) ("Hopper"), and Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) ("Beck"). On February 9, 1983, the New Hampshire Supreme Court, treating the matter as a petition for writ of habeas corpus, denied the writ without opinion. Petitioner exhausted his state court remedies, having thus "`fairly presented' to the state courts the `substance' of his federal habeas corpus claims". Anderson v. Harless, ___ U.S. ___, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982), quoting Picard v. Connor, 404 U.S. 270, 275, 277-78, 92 S.Ct. 509, 512, 513, 30 L.Ed.2d 438 (1971); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); 28 U.S.C. § 2254(b).¹ The amended petition is therefore properly before this Court for disposition on the merits.

Sufficiency of the Indictment

Petitioner maintains that the indictment for aggravated felonious sexual assault was constitutionally defective because it failed to allege lack of consent. Since the validity of the indictment presents a question going to the jurisdiction of the trial court, see Knewel v. Egan, 268 U.S. 442, 445-46, 45 S.Ct. 522, 524, 69 L.Ed. 1036 (1925); In re Debs, 158 U.S. 564, 600, 15 S.Ct. 900, 912, 39 L.Ed. 1092 (1895); Ex Parte Yarbrough, 110 U.S. 651, 654, 4 S.Ct. 152, 153, 28 L.Ed. 274 (1884); Ex Parte Parks, 93 U.S. 18, 22, 23 L.Ed. 787 (1876); DeBenedictis v. Wainwright, 674 F.2d 841, 842 (11th Cir.1982), the claim of insufficiency is addressed first.²

An indictment is constitutionally sufficient if it "sets forth the offense in the words of the statute itself as long as `those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished'". Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974), quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882); see State v. Taylor, 121 N.H. 489, 495, 431 A.2d 775, 778 (1981). In pertinent part, New Hampshire law defines the crime of aggravated felonious sexual assault as follows:

Aggravated Felonious Sexual Assault. A person is guilty of a class A felony if he engages in sexual penetration with another person under any of the following circumstances:

I. When the actor overcomes the victim through the actual application of physical force, physical violence or superior physical strength.

N.H. RSA 632-A:2I (Supp.1981).

The instant indictment closely tracked the language of subsection I of the statute:

That the defendant, Wilfred J. Dukette, did knowingly engage in sexual penetration with another person, not his wife, by overcoming the victim through the actual application of physical force in that the said Wilfred Dukette did grab one prosecutrix by the throat, force her to the ground and did penetrate her vagina with his penis.

Tr. 356-57 (emphasis added).

To be sure, if there is consent, there is no rape. See State v. Boone, 119 N.H. 594, 406 A.2d 113 (1979). By the same token, where there is force, there is no consent. The New Hampshire Supreme Court found that the emphasized portion of the indictment "clearly informed the defendant that he was charged with committing the act without the victim's consent", State v. Dukette, supra, 122 N.H. at 338, 444 A.2d at 549. There is no constitutional error in that ruling. An indictment "`must be read to include facts which are necessarily implied by the specific allegations made'". United States v. Cincotta, 689 F.2d 238, 242 (1st Cir.), cert. denied sub nom. Zero v. United States, ___ U.S. ___, 103 S.Ct. 347, 74 L.Ed.2d 387 (1982) (citations omitted).

"It is a cardinal principle of our criminal law that an indictment is sufficient which apprises a defendant of the crime with which he is charged so as to enable him to prepare his defense and to plead judgment of acquittal or conviction as a plea to a subsequent prosecution for the same offense." Portnoy v. United States, 316 F.2d 486, 488 (1st Cir.), cert. denied, 375 U.S. 815, 84 S.Ct. 48, 11 L.Ed.2d 50 (1963).

Id.³ Under the foregoing principles, the indictment was plainly sufficient.

Suggestive Identification

Petitioner initially challenged the pre-indictment photo array at trial on the ground of the denial of right to counsel. Tr. 9. This claim is clearly without merit. See United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Petitioner then moved to suppress the out-of-court identification on the ground of suggestiveness. The Court's review of the pertinent portions of the pretrial hearing, Tr. 15-33, discloses no evidence of suggestiveness. See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). The trial judge viewed the twelve photographs used in the array and ruled that the display was not suggestive.⁴ Tr. 16-17, 33-35. Were suggestiveness seriously at issue, there is little if any indication of lack of reliability. At trial, there was no dispute that the prosecutrix met the petitioner through a friend, that she had occasion to view him over a several-hour period before the alleged incident at a bar and in her own apartment, that she gave a description to the police, and that she picked him out of the photo array the next day without hesitation. Tr. 15, 21, 43, 62-85, 100-01, 224, 282-93. As the trial court ruled, the record simply fails to support a claim of a "substantial likelihood of irreparable misidentification". See Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977), quoting Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971.

Lesser Included Offense

In Beck v. Alabama, supra, the Supreme Court held that a defendant in a capital case is entitled as a matter of due process to an instruction on a lesser included offense where the evidence in the case could reasonably support a finding of guilty on the lesser offense. Hopper v. Evans, supra. Relying on Hopper and Beck, petitioner urges the Court to reach the question left unanswered in Beck, namely whether the refusal to give a lesser included offense instruction where there is evidence in the record to warrant it constitutes a violation of due process in a noncapital case. See id. 447 U.S. at 638 & n. 14, 100 S.Ct. at 2390 & n. 14.

Respondent initially seeks dismissal of the claim on the ground that a state court's failure to instruct on a lesser included offense does not present a federal...