Gilday v. Callahan, Civ. A. No. 81-2886-REK.

• Decision Date: 23 March 1994
• Docket Number: Civ. A. No. 81-2886-REK.
• Citation: 866 F. Supp. 611
• Parties: William Morrill GILDAY, Jr., Petitioner, v. William F. CALLAHAN, et al., Respondents.
• Court: U.S. District Court — District of Massachusetts

866 F. Supp. 611

William Morrill GILDAY, Jr., Petitioner, v. William F. CALLAHAN, et al., Respondents.

Civ. A. No. 81-2886-REK.

United States District Court, D. Massachusetts.

March 23, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael Avery, Ellen K. Wade, Sugarman, Rogers, Barshak & Cohen, Boston, MA, for William Morrill Gilday, Jr.

William Morrill Gilday, Jr., pro se.

Linda G. Katz, Dept. of Atty. Gen., LaDonna J. Hatton, Atty. General's Office, Crim. Div., Boston, MA, for William F. Callahan, Superintendent, MCI Norfolk.

Opinion

KEETON, District Judge.

I.

After full consideration of the contentions of the parties in this habeas corpus petition, I conclude that the petition should be denied.

The petition was filed in this court more than a decade after the state court conviction it challenges. Now, more than another decade after it was filed, it is before the court for decision on voluminous submissions (the most recent of which was filed in 1994).

II. Factual and Procedural Background

On September 22, 1970, Officer Walter A. Schroeder of the Boston Police was killed in the course of an armed robbery of the Brighton Branch of the State Street Bank and Trust Company. On March 10, 1972 a jury convicted petitioner of first degree murder and two counts of armed robbery for his involvement in the events of September 22, 1970.

The others charged in the robbery and murder were Stanley R. Bond, Robert J. Valeri, Susan E. Saxe, Michael Fleischer and Katherine A. Power. Bond, who testified as a defense witness at petitioner's trial, died in prison. Valeri, who testified as a prosecution witness against petitioner, pleaded guilty to manslaughter and is now free. Fleischer testified as a prosecution witness against petitioner; his indictments were ultimately dismissed. After a period as a fugitive, Saxe was tried in 1976. That trial ended in a hung jury; she then pled guilty to manslaughter and is now free. The court takes judicial notice of the widely publicized fact that Katherine Power recently ended a twenty-three year period as a fugitive, pled guilty to charges against her in the Superior Court of Massachusetts and is currently serving a term of imprisonment in Massachusetts.

On October 4, 1972, petitioner filed his first motion for a new trial in light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). His motion was denied, but his death sentence was changed to a life sentence, which he is currently serving.

On August 20, 1973, petitioner filed a second motion for a new trial. He alleged that a) the prosecution had suppressed exculpatory statements by a witness, Michael Finn, b) the prosecution had suppressed an arrangement of leniency Valeri had allegedly been granted in return for his testimony, c) he had been denied a trial before an impartial jury due to prejudicial pretrial publicity, d) the judge's instructions on the meaning of "reasonable doubt" violated his due process rights, and e) certain other constitutional violations had occurred at his trial. Evidentiary hearings were held on this motion, after which the Superior Court denied the motion; the Supreme Judicial Court affirmed in Commonwealth v. Gilday, 367 Mass. 474, 327 N.E.2d 851 (1975) ("Gilday I").

On January 11, 1979, petitioner filed a third motion for new trial, alleging that the prosecution had suppressed exculpatory evidence of an arrangement of leniency Fleischer had been granted in exchange for his testimony. The motion was denied, and petitioner appealed. The Supreme Judicial Court remanded the case for an evidentiary hearing to determine if in fact such an arrangement of leniency had been made. The Superior Court, though finding that an arrangement of leniency had been made, denied relief. Petitioner appealed again. The Supreme Judicial Court affirmed the trial court's finding that an arrangement of leniency had been made. The Court ruled, however, that any constitutional error thereby committed was harmless beyond a reasonable doubt. Commonwealth v. Gilday, 382 Mass. 166, 415 N.E.2d 797 (1980) ("Gilday II").

On October 13, 1981, Gilday filed his petition for writ of habeas corpus with this court. The Commonwealth filed a motion to dismiss the petition on the grounds that some of the issues had not been exhausted in state court. Judge McNaught of this court issued a memorandum and order dismissing petitioner's original petition and treating it as resubmitted with the then-unexhausted state claims deleted (Docket No. 22, December 17, 1982).

On May 7, 1983, petitioner filed a motion to expand the record before the court to include a recently obtained affidavit of the witness Valeri, which petitioner asserted disclosed that an arrangement of leniency had been made in return for Valeri's testimony. Petitioner moved for an evidentiary hearing on the matter. That motion was denied by Magistrate Judge Joyce L. Alexander on September 16, 1983, Gilday v. Callahan, 99 F.R.D. 308 (no docket number). The denial was affirmed by Judge McNaught (marginal notation on Docket No. 53, made on January 18, 1983).

On December 8, 1990, Judge McNaught ordered the case dismissed for want of prosecution (Docket No. 93). On February 1, 1991, Judge McNaught retired. On June 25, 1991, Judge Skinner granted a motion vacating the order of dismissal, and the case was reassigned to the judge before whom the matter is now pending (Docket No. 95).

Meanwhile, on June 1, 1987, petitioner had filed his fourth motion for a new trial with the state courts, in order to litigate the then-unexhausted claims. He alleged in that motion that the charge to the jury had impermissibly removed specific intent as an element of the crime, substituting mandatory presumptions of intent and malice. The Superior Court denied this motion and the Supreme Judicial Court affirmed. Commonwealth v. Gilday, 409 Mass. 45, 564 N.E.2d 577 (1991) ("Gilday III").

On January 24, 1992, this court allowed petitioner to amend his petition to include the claims that were exhausted by Gilday III (Docket No. 101, marginal notation).

III. Reasonable doubt instructions

A. Constitutional Error

Petitioner challenges the charge to the jury on the government's burden of proof.

In 1970, before the trial of petitioner, the Supreme Court held that due process requires in any criminal proceeding that the factfinder be persuaded "beyond a reasonable doubt" of facts necessary to show the essential elements of the offense. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

A trial court need not define reasonable doubt, but any definition the court states for the jury must not lessen the government's burden of proof. United States v. Olmstead 832 F.2d 642, 644-46 (1st Cir.1987). To show on collateral review that a trial court erred in defining "beyond a reasonable doubt," a petitioner bears a heavy burden. The Supreme Court has declared that "a single instruction ... may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 397, 38 L.Ed.2d 368 (1973). To show prejudice, a petitioner must show more than merely that the instruction was "undesirable, erroneous, or even `universally condemned.'" The burden is to show that the error "so infected the entire trial that the resulting conviction violates due process." Id. Once constitutional error in a reasonable-doubt charge has been established, however, the error can never be regarded as harmless. Sullivan v. Louisiana, ___ U.S. ___, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); see discussion below at 628.

Courts have determined to be unconstitutional instructions that, among other things, defined the reasonable doubt standard as one of "moral certainty." For example, in Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 330, 112 L.Ed.2d 339 (1990), the trial court had instructed the jury that if they were not convinced of guilt to a "moral certainty," and the evidence does not give rise to "grave uncertainty," or to "actual substantial doubt," then guilt beyond a reasonable doubt had been established. The Supreme Court found this instruction to be constitutionally deficient. In Lanigan v. Maloney, 853 F.2d 40, 47-48 (1988) the Court of Appeals for the First Circuit held that a charge that, among other things, had required jurors to be convinced of guilt to "a degree of moral certainty" (emphasis added) was constitutionally deficient.

Other First Circuit precedent makes clear, however, that whether a reasonable doubt instruction that contains "moral certainty" language is unconstitutional depends on context, including the entire charge in which the challenged language appears.

Id. at 48 (citing cases in which charge as a whole was not unconstitutional but finding that in the case before it the entire thrust of charge deemphasized the government's burden).

See also Dunn v. Perrin, 570 F.2d 21, 25 (1978) (cumulative effect of three incorrect definitions was to obfuscate an essential of due process).

Thus, for example, in United States v. Drake 673 F.2d 15, 20 (1982) the court determined that language referring to "moral certainty," without more, did not render constitutionally deficient a charge that, as a whole, properly instructed the jury on the government's burden and on the presumption of innocence.

Objecting to "moral certainty" language in the instructions in this case, petitioner points to five occasions on which the court used the phrase "moral certainty" in charging the jury. Respondent counters by noting that on five occasions, the court emphasized to the jury the high standard of proof. Respondent also notes that unlike the charge in Dunn, the charge here did not contain the words "to a degree of." In the opinion of the court in Dunn, this latter phrase had been particularly harmful in conjunction with the phrase "moral certainty." Respondent notes also that, unlike the charge in Cage,...