Gilday v. Callahan

• Decision Date: 05 July 1995
• Docket Number: No. 94-1619,94-1619
• Parties: William Morrill GILDAY, Jr., Petitioner, Appellant, v. William F. CALLAHAN, Superintendent, MCI Norfolk, Respondent, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 257

59 F.3d 257

William Morrill GILDAY, Jr., Petitioner, Appellant, v. William F. CALLAHAN, Superintendent, MCI Norfolk Respondent, Appellant.

No. 94-1619.

United States Court of Appeals First Circuit.

Argued May 1, 1995.

Decided July 5, 1995.

Michael Avery, Newton Center, MA, for appellant.

William J. Meade, Asst. Atty. Gen., with whom Scott Harshbarger, Atty. Gen., Boston, MA, was on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

COFFIN, Senior Circuit Judge.

Petitioner William Gilday was convicted of first degree murder and two counts of armed robbery for his involvement 25 years ago in a notorious bank robbery in which Boston Police Officer Walter A. Schroeder was killed. This habeas case, originally filed in 1981, was reactivated after disposition of the last of his four unsuccessful motions for new trial in the Massachusetts courts. The district court denied the petition in a comprehensive opinion. 866 F.Supp. 611 (D.Mass.1994). After carefully reviewing the case authorities and relevant portions of the record, we affirm.

I. Background

We shall provide at this juncture only brief factual background, adding more details in later sections as necessary for an understanding of the issues discussed. A lengthy description of the evidence presented at Gilday's five-week trial is reported in Commonwealth v. Gilday, 367 Mass. 474, 478-485, 327 N.E.2d 851, 854-58 (1975) ("Gilday I "). See also Gilday, 866 F.Supp. at 640-43. A full chronology of the proceedings since his 1972 conviction is set out in the district court's opinion. Id. at 615-16.

Gilday and five others were indicted on robbery and murder charges. ¹ Evidence indicated that the group had planned a series of bank robberies to raise funds in support of radical political activities. The Supreme Judicial Court summarized as follows the evidence supporting the Commonwealth's theory of what occurred on the day of the robbery at issue here:

Bond, Valeri and Saxe entered the bank carrying guns, robbed it and drove off in a blue Chevrolet.... Gilday, armed with a semiautomatic rifle, was seated in a white Ambassador automobile across the street from the bank.... [A]fter the other three had escaped from the scene, Gilday fired a number of shots at two policemen who arrived, and Officer Schroeder thereby sustained the wounds from which he died the next day. Bond, Valeri, and Saxe later switched to a third vehicle, a station wagon driven by Power, and made their escape. Gilday also escaped in the white Ambassador.

367 Mass. at 477, 327 N.E.2d 851.

On March 10, 1972, Gilday was convicted by a jury and sentenced to death. Following the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and his first motion for new trial, the death sentence was changed to a sentence of life imprisonment. His subsequent efforts to obtain relief from the original convictions have proven unsuccessful.

In this appeal, Gilday argues that he is entitled to a writ of habeas corpus because his trial was replete with constitutional error, and there consequently is substantial reason to believe he was innocent of the charges on which he was convicted. We have considered each of his claims fully, but cannot say that any of the identifiable flaws in the proceedings constituted a deprivation of rights warranting reversal of his convictions. We discuss most of these claims in some detail below. As for the others, the district court's analysis so closely reflects our own thoughts that we find it unnecessary to repeat the discussion and, therefore, adopt its conclusions as our own.

II. Reasonable Doubt Instruction

Gilday claims a host of problems with the trial judge's reasonable doubt instruction, several of which center on language that has been expressly and repeatedly disapproved by this and other courts. Because we agree that this charge was flawed, we have studied its full text and context with particular care in order to answer the relevant constitutional question: "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the [reasonable doubt] standard," Victor v. Nebraska, --- U.S. ----, ----, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). Our review is de novo. See Ouimette v. Moran, 942 F.2d 1, 4 (1991) (presumption of correctness for state court findings of fact under 28 U.S.C. Sec. 2254 applies only to " 'basic, primary or historic facts' " (citation omitted)).

As we previously remarked when evaluating a strikingly similar instruction in Bumpus v. Gunter, 635 F.2d 907, 910 (1st Cir.1980), ² ] "[i]t is to be remembered ... that [the challenged] remarks have been separately culled from a very lengthy charge. They, and the emanations from them, must be assessed along with the rest of the charge...." The Supreme Court recently reaffirmed the need to examine a charge in context to determine whether language possibly erroneous in the abstract is cleansed because "the rest of the instruction ... lends content to the phrase," Victor, --- U.S. at ----, ---- - ----, 114 S.Ct. at 1247, 1250-51. See also id. at ----, 114 S.Ct. at 1243 (" '[T]aken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.' " (quoting Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 138, 99 L.Ed. 150 (1954))).

In the end, we have come to the conclusion that the charge overall left the jury with an accurate impression of the substantial burden faced by the prosecution in establishing the defendant's guilt beyond a reasonable doubt. As shall become apparent from our discussion below, none of the problems identified by Gilday is, on its own, of a severity that warrants reversal of his conviction. Indeed, several of the flaws are significantly ameliorated by other aspects of the charge. And, while the cumulative impact of the flaws is itself a separate matter of concern, we are persuaded that it does not rise to the level of constitutional error.

The charge, which spanned 20 paragraphs when reduced to writing, ³ loosely may be divided into three separate segments for purposes of our review. We therefore begin our discussion by reproducing the first five paragraphs:

It is the burden of the Commonwealth to establish its case beyond a reasonable doubt. What do those words mean? Well, you give to them their common ordinary meaning. A doubt means an uncertainty of mind or a lack of conviction. And reasonable means based upon a reason.

I am going to discuss with you what our Court has said it does not mean. It does not mean a whimsical or a fanciful doubt; that is, a doubt which is conjured up, which has no strength to tie it together, which has no foundation in fact. It is floating around in the air. And you can't pull it down and root it to something solid in the evidence. It is whimsical.

It is not beyond all doubt. There are few things in this world of ours which are capable of proof beyond all doubt. That is an impossible burden. And if that were the burden that we placed upon the Commonwealth, no one who transgressed the laws of society or outraged our populace would ever be convicted of a crime. Don't confuse beyond a reasonable doubt with beyond all doubt.

And I sometimes think the jurors take that as their standard. They must be satisfied before they find a defendant guilty that there is no possibility that they are wrong before their full conviction. And so again, the Court has said: "Proof beyond a reasonable doubt is not beyond the possibility of innocence," because I suppose almost anything is possible.

And if you are satisfied as I define reasonable doubt of the proof of the Commonwealth's case beyond a reasonable doubt you should not hesitate because of a haunting thought that there is a possibility that you might be wrong. Because then you place on the shoulders of the sovereign state a burden it does not have.

The judge thus began simply, telling the jurors that a reasonable doubt is an uncertainty "based upon a reason." Petitioner argues that the charge contained such a catalogue of examples of what was not reasonable doubt that the jury was in effect improperly influenced to assign whatever doubt it had to these examples. But tautology is not multiplicity; all of the references carried the identical message: that proof beyond a reasonable doubt is not beyond all doubt. As we said in Bumpus, 635 F.2d at 911:

While the judge placed what we regard as an uncomfortable degree of emphasis on the limits of the government's burden, ... the charge in its entirety was not so unbalanced as to undercut the reasonable doubt standard, nor was it basically inaccurate.

The next six paragraphs contain all of the troubling language. The section begins with a rhetorical question: "[s]o what does it [reasonable doubt] mean?" The judge then answered:

Not one who is searching for a doubt to acquit; not one who has made up his mind that the defendant is not guilty, and then having decided the ultimate question, to satisfy his conscience goes back through the evidence and pores through it to find something upon which to pin the doubt which he already has. No, indeed. It is the doubt of a conscientious juror who is earnestly seeking the truth in the fullest discharge of the oath that he took. It is proof, as our Supreme Judicial Court has said, "To a moral certainty."

That is not a mathematical certainty; that is not a scientific certainty which is capable of exactness, because human beings are endowed with a free will; and they are capable of independent action. And you can't take their conduct and put it into a test tube or a computer and come out with a nice answer.

When you get all through analyzing this evidence, it has to be a doubt nagging your mind, leaving you with an uncertainty of conviction to that moral certainty which you can stand...