Jackson v. Amaral, 83-1469

• Decision Date: 08 March 1984
• Docket Number: No. 83-1469,83-1469
• Citation: 729 F.2d 41
• Parties: Anthony JACKSON, Petitioner, Appellant, v. Ronald AMARAL, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 41

729 F.2d 41

Anthony JACKSON, Petitioner, Appellant, v. Ronald AMARAL, Respondent, Appellee.

No. 83-1469.

United States Court of Appeals First Circuit.

Argued Nov. 8, 1983.

Decided March 8, 1984.

Robert S. Potters, Boston, Mass., with whom Nix & Potters, Boston, Mass., was on brief, for petitioner, appellant.

Barbara A.H. Smith, Chief, Criminal Appellate Div., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for respondent, appellee.

Before COFFIN, Circuit Judge, ROSENN, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

COFFIN, Circuit Judge.

The petitioner, Anthony Jackson, was convicted in a Massachusetts state court of various offenses including armed assault with intent to murder and unlawful carrying of a firearm. Jackson alleges that his constitutional rights were violated during the course of his trial and petitions for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The District Court for the District of Massachusetts dismissed Jackson's petition. We affirm.

The facts supporting Jackson's conviction are reported in the opinion of the Supreme Judicial Court of Massachusetts, which is printed at 376 Mass. 790 and 383 N.E.2d 835 (1978). We see no need to repeat them here. Jackson raises two constitutional objections to his conviction. He argues that his waiver of counsel was ineffective and thus that he was deprived of his right to assistance of counsel. He also contends that the trial judge's refusal to voir dire individually all of the jurors exposed to prejudicial publicity during his trial deprived him of his right to an impartial jury.

Waiver of Counsel

Jackson was indicted on the charges that led to his conviction in this case arising in Middlesex County in January, 1973. Jackson was not tried, however, for more than three years because his trial was postponed at his request pending resolution of an unrelated murder indictment in Suffolk County. Jackson was represented at the time of his indictment in this case by his own attorney, Steven Salon, and by appointed counsel, Jack Zalkind.

Jackson was represented in connection with the Suffolk County indictment by a succession of lawyers which evidently led Jackson, appearing pro se, to challenge the method used to appoint counsel and to object to the withdrawal of some of his counsel. The Supreme Judicial Court of Massachusetts rejected Jackson's petition on April 30, 1976, adopting a Master's Report that found that Jackson's trial had been delayed for three years by proceedings "initiated by (or in behalf of) Jackson and by his failure (a) to accept and work with assigned counsel, and (b) to keep those assigned willing to work with him". Jackson v. Commonwealth, 370 Mass. 855, 346 N.E.2d 714 (1976) (rescript opinion). The court concluded: "[i]f Jackson will not accept appointed counsel, he must proceed promptly to trial without counsel". 370 Mass. 856, 346 N.E.2d 714.

The Superior Court was thereafter instructed by the Chief Justice of Massachusetts to schedule other pending cases for trial, including this one, even though Jackson had not yet been tried on the Suffolk County indictment. As a pretrial hearing on June 3, 1976, both Salon and Zalkind moved to withdraw from this case, citing differences with Jackson as justification. The superior court judge granted their motion and scheduled trial for June 14, 1976.

During the course of that pretrial hearing Jackson indicated that he wished to appear pro se in this case. Jackson now contends that his waiver of counsel was ineffective because it was conditioned on the allowance of his request for more time to prepare for trial. Our review of the record indicates that Jackson "knowingly and intelligently" waived his right to counsel, McKaskle v. Wiggins, --- U.S. ----, ----, 104 S.Ct. 944, 949, 78 L.Ed.2d --- (1984); Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)), and that his waiver was unconditional.

It is clear from the record that Jackson waived his right to counsel with full knowledge that his trial had been scheduled for June 14, 1976. The superior court judge scheduled the trial for June 14 after allowing Zalkind to withdraw from the case, but before accepting Jackson's waiver. The judge, who was familiar with the April 30th opinion of the Supreme Judicial Court, informed Jackson that "in the case that I assigned for June 14, 1976, you will proceed with Mr. Salon or some other attorney appointed by this Court, either as [your attorney or] your legal advisor, if you decide to go pro se". This led to an extensive colloquy during which Jackson repeatedly objected to the scheduling of trial prior to the resolution of the murder charges against him.

The judge twice noted Jackson's objection to the scheduling of trial and then said: "Now, the next question I am asking you now that I have made the order to which you object and take an exception to [the June 14 trial date] is: Do you intend in any way to represent yourself, or do you want the assistance of legal counsel?" Jackson responded that "[i]f Mr. Salon decides that he chooses to withdraw ... then I will represent myself".

After further discussion during which Jackson again objected to the trial schedule and expressed concern about his lack of preparation and access to legal materials, the judge advised Jackson that the trial would go forward but that he would take his request for legal materials under advisement. The judge then advised Jackson that he had decided to appoint a legal advisor to assist him. Jackson responded that "Barry (sic) versus California says I have a right to try without legal counsel, without any assistance, without any attorney sitting at the table with me ...." The judge attempted to point out Jackson's lack of legal training, but Jackson responded that "the last statement of the decision says that: we bestow on the defendant the right to defend himself--although one who defends himself may have a fool for a client. And I ask the Court for that right. If I must sail the sea, I want to be at the helm of my own ship, Your Honor, without counsel". Subsequently the judge allowed Mr. Salon to withdraw from the case, but he assigned counsel to act as Jackson's legal advisor.

On this record we have no difficulty concluding that Jackson's waiver of legal counsel was "intelligent, effective, and voluntary". Fillippini v. Ristaino, 585 F.2d 1163 (1st Cir.1978). We agree with the Supreme Judicial Court that Jackson was "literate, competent, and understanding", 383 N.E.2d at 839 (quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)), and that he was "adequately aware of the seriousness of the charges, the magnitude of his undertaking, the availability of advisory counsel, and the disadvantages of self-representation", 383 N.E.2d at 839. Nor do we have any doubt that his waiver was unconditional. The record clearly indicates that the trial date of June 14 was firmly fixed before Jackson indicated his desire to proceed pro se and there is no indication that Jackson ever conditioned his waiver on the grant of a continuance.

Voir Dire

On the morning of the second day of Jackson's trial an article appeared in The Boston Globe, which reported that Jackson had been indicted for murder in three Massachusetts counties. When Jackson brought this report to the attention of the court and claimed that he had been prejudiced by it, the court agreed to conduct a voir dire of the jury to ascertain the impact, if any, of the publicity.

Although Jackson requested that the court question the jurors individually, the court decided to address its initial questions to the jury collectively. Thirteen of the sixteen jurors indicated that they had read the Boston Globe article. But only one of the thirteen jurors responded affirmatively when the court asked if anything in the article had caused any of them "to form any opinion or prejudice against the Defendant". Nor did any other juror respond affirmatively when the court asked if the article would prevent them from rendering a fair and impartial verdict.

Following these questions the court instructed the jurors to ignore the Globe article and other press accounts and reminded them of their duty to decide the case in a fair and impartial manner solely on the basis of the evidence presented at trial. The court then conducted a separate voir dire of the juror who had answered affirmatively and excused her from further service.

Jackson contends that the court's failure to voir dire individually all of the jurors who saw the Globe article deprived him of his constitutional right to trial by an impartial jury. The respondent argues both that Jackson is precluded from bringing this claim and that the court conducted a proper and constitutionally adequate voir dire. We reject the state's procedural claim, but conclude that the collective voir dire did not deprive Jackson of his constitutional rights.

During the course of trial Jackson lodged a timely objection to the court's refusal to conduct an individual voir dire of the jurors who saw the Globe article. In his brief to the Supreme Judicial Court Jackson pressed this failure as one of his three grounds of appeal. But the Supreme Judicial Court held that this claim was not properly before it, because it had not been properly identified in...