Jervis v. Hall, 80-1012

• Decision Date: 03 June 1980
• Docket Number: No. 80-1012,80-1012
• Citation: 622 F.2d 19
• Parties: Mark JERVIS, Petitioner, Appellant, v. Frank HALL, etc., Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 19

622 F.2d 19

Mark JERVIS, Petitioner, Appellant, v. Frank HALL, etc., Respondent, Appellee.

No. 80-1012.

United States Court of Appeals First Circuit.

Submitted April 10, 1980.

Decided June 3, 1980.

Lois M. Lewis, West Newton, Mass., on brief, for petitioner, appellant.

Francis X. Bellotti, Atty. Gen., Stephen R. Delinsky, Asst. Atty. Gen., Chief, Criminal Bureau and Annette C. Benedetto, Asst. Atty. Gen., Boston, Mass., on brief, for respondent, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Petitioner appeals from the denial of his petition for habeas corpus. He argues his constitutional rights were violated by (1) the denial of his motion to sever, (2) allowance of the Commonwealth's motion to amend one of the indictments, and (3) certain evidentiary rulings.

1. Motion to sever

Two indictments, one charging assault with intent to murder and the other, larceny of a motor vehicle belonging to Richard Petrillo, were returned against petitioner. On the assault indictment, the jury found the petitioner guilty of the lesser included offense of assault with intent to kill, and it returned a guilty verdict on the larceny indictment. Petitioner was sentenced to a term of 8 to 10 years on the assault and 4 to 7 years on the larceny, the latter to take effect from and after the expiration of the assault sentence. Petitioner's convictions were affirmed on appeal. Commonwealth v. Jervis, 368 Mass. 638, 335 N.E.2d 356 (1975).

The state trial court, while noting that on the face of the indictments the crimes appeared to be unrelated, permitted the offenses to be tried together upon the district attorney's representation of a substantial overlap in the evidence on both charges. ¹ The evidence at trial was basically as follows. Richard Petrillo testified that he discovered his light beige or tan Volkswagen missing on July 15, 1972. Several weeks later when he recovered his car from the police, he found the ignition had been removed. Linda Shelton, the victim of the assault, testified that petitioner drove up to her apartment on the night of either July 18 or 19, 1972 in a light blue Volkswagen, a car she had never seen petitioner drive before. Petitioner informed her that her baby (there was evidence that the father of the baby was petitioner's brother) had been adopted, and told her to get in the car because he had to talk to her. She complied, and petitioner started the car by inserting a screwdriver into the ignition. He gave her eight little white pills to calm her down and eventually drove to a narrow wooded road in Medford. Linda's last memory of that evening is lying on a blanket in the woods watching petitioner drink Black Label beer; she has no memory of being assaulted. She was discovered unconscious in the woods with a gash in her skull and bruises on her body on the afternoon of July 20, 1972. The police recovered a blanket and two cans of Black Label beer nearby. Linda was hospitalized and remained so for close to two months. At first she had no memory of what had happened, but one day within a few weeks of the incident she suddenly remembered the events of the evening of July 18 or 19 as recounted above and informed the police. Shortly thereafter, on August 5, 1972, petitioner was arrested. After being informed of his Miranda rights, he stated, in response to a question from the police, that the Volkswagen parked on the corner near the house in which petitioner was arrested was his and that he had had the car approximately two weeks. Petrillo's license plates were found inside the car, and the car was eventually returned to him.

Thus, as the Commonwealth had represented to the trial court, there was an overlap in the evidence used to prove the two offenses. Linda Shelton, the Commonwealth's principal witness on the assault charge, provided some evidence linking petitioner with the stolen Volkswagen in her narrative of the evening of the assault. From her testimony, particularly the manner in which the Volkswagen was started, it could be concluded petitioner was in the possession of a stolen Volkswagen on July 18 or 19, just several days after its theft. ²

Conversely, evidence of the larceny was relevant to proving the assault charge. In statements petitioner made to the police he denied he had seen Linda Shelton on the night of the assault or at any time prior to a week and a half or so before it. If petitioner were correct, then it is unlikely Linda would have known of his possession of the Volkswagen for it had not yet been stolen at the time petitioner claimed to have last seen Linda. It was this very detail the type of car petitioner was driving which both corroborated her version of events and contradicted petitioner's. True, whether petitioner possessed the Volkswagen lawfully or unlawfully on the evening of the assault was, in the first instance, irrelevant; however, establishing that petitioner did not have the Volkswagen at the time he claimed to have last seen Linda was important and this, we think, under the circumstances, could properly be shown by evidence that it was not stolen until a few days before the assault. Thus, had the assault been tried separately from the larceny, the prosecution could properly have introduced the evidence tending to establish that on the evening of the assault petitioner was in possession of a Volkswagen which had been stolen only a few days earlier.

It is true that much of the evidence surrounding the assault would have been irrelevant and therefore inadmissible in a separate trial on the larceny charge. That Linda Shelton was with petitioner on July 18 or 19 and saw him driving a Volkswagen with a broken ignition would have been relevant to establishing his possession of the stolen vehicle within a few days of its theft, but her subsequent assault would not have been germane. Petitioner argues that there is a danger that where, as here, two offenses are tried together and the evidence of one is not admissible on the other, a jury will use the "evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime . . . ." Drew v. United States, 331 F.2d 85, 88 (D.C. Cir. 1964). See also United States v. Foutz, 540 F.2d 733, 736-39 (4th Cir. 1976); King v. United States, 355 F.2d 700, 704 (1st Cir. 1966).

Despite the potential prejudice, we do not think habeas corpus relief may permissibly be granted here. In Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), the Supreme Court rejected a due process attack upon the admission of past criminal conduct. Under the challenged state one-stage habitual criminal procedure, the jury trying a recidivist on a pending criminal charge was informed of his previous derelictions but was also charged by the court that such matters were relevant only on whether punishment would be enhanced and were not to be taken into account in assessing the defendant's guilt or innocence under the current indictment. Id., 556, 87 S.Ct. at 649.

The Court recognized that evidence of a defendant's bad acts are not admissible to prove criminal propensity but may be admitted when probative of such matters as intent, identity, malice, motive, or the like. Id., 560-61, 87 S.Ct. at 652. In the latter situations, as under the challenged state recidivist procedure, the jury learns of defendant's prior crimes "but the conceded possibility of prejudice is believed to be outweighed by the validity of the State's purpose in permitting introduction of the (prior crime) evidence." Id., 561, 87 S.Ct. at 652. While the Court acknowledged that the state interest in admitting prior crime evidence to enforce the one-stage recidivist trial "may be thought to represent a less cogent state interest than does (the use of prior crime evidence) for other purposes," in that the state could accomplish the objective of enhancing the punishment of habitual criminals without at the same time subjecting them to the risk that a jury would infer criminal propensity and convict them for that reason by the simple expedient of deciding punishment in a separate proceeding, the Court found no constitutional infirmity. Id., 563, 87 S.Ct. at 653. The Court stated

"In the face of legitimate state purpose and the longstanding and widespread use that attend the procedure under attack here, we find it impossible to say that because of the possibility of some collateral...