Kines v. Butterworth

• Decision Date: 28 December 1981
• Docket Number: Nos. 81-1325,81-1350,s. 81-1325
• Citation: 669 F.2d 6
• Parties: Bobby Ray KINES, Petitioner, Appellant, v. Fred BUTTERWORTH, et al., Respondents, Appellees. Ronald ST. PIERRE, Petitioner, Appellant, v. Fred BUTTERWORTH, et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 6

669 F.2d 6

Bobby Ray KINES, Petitioner, Appellant, v. Fred BUTTERWORTH, et al., Respondents, Appellees.

Ronald ST. PIERRE, Petitioner, Appellant, v. Fred BUTTERWORTH, et al., Respondents, Appellees.

Nos. 81-1325, 81-1350.

United States Court of Appeals First Circuit.

Argued Sept. 17, 1981.

Decided Dec. 28, 1981.

Robert Sheketoff and Bernard Grossberg, Boston, Mass., with whom Norman S. Zalkind, Boston, Mass., by appointment of the Court, and Zalkind & Zalkind, Boston, Mass., were on brief, for petitioner, appellant.

Alexander G. Gray, Jr., Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti Atty. Gen., Boston, Mass., was on brief, for respondents, appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, MURRAY, Senior District Judge. ^*

FRANK J. MURRAY, Senior District Judge.

Appellants in these two related cases appeal the district court's dismissal of their petitions for habeas corpus relief brought pursuant to 28 U.S.C. § 2254. Appellants were indicted for mayhem and assault and battery by means of a dangerous weapon and, after conviction of these charges by a jury in the Superior Court of Massachusetts, were sentenced to concurrent three- to ten-year terms to be served at the Massachusetts Correctional Institution (M.C.I.) at Walpole from and after sentences previously imposed. After unsuccessful appeals to the Massachusetts Supreme Judicial Court, Commonwealth v. St. Pierre, 377 Mass. 650, 387 N.E.2d 1135 (1979), appellants filed these petitions in the federal district court.

The grounds of relief sought are that their respective federal constitutional due process rights to a fair trial in the Superior Court were violated when appellants' access before trial to potential witnesses, certain corrections officers at M.C.I. at Walpole, was prevented by a Massachusetts State Police Trooper, and that their rights ¹ were violated by rulings of the trial judge made during trial. In the district court the parties waived an evidentiary hearing and submitted the cases to a magistrate on the transcript of the state court proceedings and on certain portions of the state court record. ² After a hearing, the magistrate made recommendations to the district judge for disposition of the petitions. The district judge declined to adopt the recommendation that the petitions be granted on the witness-interference issue. The judge found that appellants were not prejudiced by any governmental misconduct on the part of the state trooper which may have gone uncorrected, and accepted the magistrate's recommendation on all other grounds. Accordingly, the district court dismissed the petitions on all grounds.

In this appeal appellants argue that the state trooper had no justification to give instructions to the corrections officers not to talk with defense counsel, and that such interference with counsel's opportunity to talk with the corrections officers constituted a denial of due process of law, citing United States v. Nardi, 633 F.2d 972, 977 (1st Cir. 1980), and Gregory v. United States, 369 F.2d 185, 188 (D.C.Cir.1966), cert. denied, 396 U.S. 865, 90 S.Ct. 143, 24 L.Ed.2d 119 (1969). They also argue that they were seriously prejudiced in their attempt to properly prepare their defense. The respondent concedes that the state trooper improperly instructed the corrections officers. It is the respondent's position, however, that as appellants have shown no prejudice to them resulting from the actions of the state trooper, the petitions for habeas corpus on this ground should be dismissed.

I

The equal right of the prosecution and the defense in criminal proceedings to interview witnesses before trial is clearly recognized by the courts. United States v. Scott, 518 F.2d 261, 268 (6th Cir. 1975); United States v. Matlock, 491 F.2d 504, 506 (6th Cir.), cert. denied, 419 U.S. 864, 95 S.Ct. 119, 42 L.Ed.2d 100 (1974); Callahan v. United States, 371 F.2d 658, 660 (9th Cir. 1967). No right of a defendant is violated when a potential witness freely chooses not to talk; a witness may of his own free will refuse to be interviewed by either the prosecution or the defense. United States v. Scott, supra at 268; Byrnes v. United States, 327 F.2d 825, 832 (9th Cir.), cert. denied, 377 U.S. 970, 84 S.Ct. 1652, 12 L.Ed.2d 739 (1964). However, when the free choice of a potential witness to talk to defense counsel is constrained by the prosecution without justification, this constitutes improper interference with a defendant's right of access to the witness. Justification on the part of the prosecution to interfere with that right can be shown only by the clearest and most compelling considerations. Cf. Dennis v. United States, 384 U.S. 855, 873, 86 S.Ct. 1840, 1850, 16 L.Ed.2d 973 (1966).

Appellants' claim that governmental interference with their access to witnesses during the investigative stage preceding the state court trial denied them due process of law presents the limited issue whether they received in the state court an essentially fair trial in the federal constitutional sense. "As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial." Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941). Cases which have held that the defendant was denied due process when his access to witnesses before trial was obstructed by the prosecution follow: Gregory v. United States, surpa at 188; United States v. Tsutagawa, 500 F.2d 420 (9th Cir. 1974); United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971); Hernandez v. Nelson, 298 F.Supp. 682 (N.D.Cal.1968), aff'd, 411 F.2d 619 (9th Cir. 1969). The issue of prosecutorial interference with witnesses was raised in the cases which follow, and the courts for various reasons declined to find that defendant's right to a fair trial was violated. United States v. Nardi, supra; United States v. Cook, 608 F.2d 1175 (9th Cir. 1979), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980); Salemme v. Ristaino, 587 F.2d 81 (1st Cir. 1978); United States v. Hyatt, 565 F.2d 229 (2d Cir. 1977); United States v. Jones, 542 F.2d 186 (4th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976).

Mindful that a defendant, when claiming improper denial of access to a potential witness on due process grounds, must make a showing of more than merely the witness' inaccessibility, United States v. Scott, supra at 268, we turn to examine the record as a whole to assess the effect on the state court trial of the improper instructions given by the state trooper. A summary of the relevant facts and procedural history follows. On August 24, 1976, shortly before 2 P.M., William Reilly, an inmate at M.C.I. at Walpole occupying a cell on tier one of block ten, suffered injury when the open solid steel outer door of his cell was slammed against his left arm extended through the locked inner grille door. He had been assigned to the cell the preceding day. He was taken to the Lemuel Shattuck Hospital where he underwent an operation. A day or two later, he gave a written statement to the state trooper, the chief investigating officer for the Commonwealth, identifying the appellants as the men who had assaulted him by means of the door. On August 24 appellants were inmates at M.C.I. at Walpole serving sentences for other crimes, and were assigned to cells in block ten. The state trooper had exhibited to Reilly an array of photographs at the interview when he made the identification. The state trooper prepared a written report after interviewing Reilly and several corrections officers who had been on duty on the day of the injury, and after examining tier one and official documents at the prison. Statements of the corrections officers were not reduced to writing in discoverable form.

When defense counsel attempted to interview five corrections officers who were potential witnesses, counsel learned that the state trooper had instructed the officers not to talk. Counsel thereupon moved pretrial to dismiss the indictments. The trial judge denied the motion and instructed the prosecutor to advise the corrections officers, on the judge's authority, of their right to talk to defense counsel "as they wish or not wish". The prosecutor later reported that he had given the court's instructions to the corrections officers. However, the officers still declined to talk to counsel for the defense. A motion was then presented to the trial judge for "an Order requesting the Commonwealth to tell the (corrections officers) to speak to (defense counsel) so that we could know what their testimony is going to be before trial ...". The judge denied the motion stating he saw no need of taking further action.

At the trial the prosecution called eight witnesses: five corrections officers, Reilly, a medical expert and the state trooper. Only Reilly identified appellants as his assailants on August 24. The five corrections officers who testified had declined before trial to talk with defense counsel. None of these officers testified that he was an eyewitness to the incident when Reilly was injured, and none testified that he was in sight of tier one of the cell block when the incident occurred. One of the officers, Geiss, testified that about 2 P.M. he heard muffled yelling and the volume of sound of radios and T.V.'s "go up"; that he went to the head of the tier and talked with inmate Gordon O'Brien; that he then went to the office and returned with other officers; that with another officer he entered the tier where he saw the appellants and O'Brien out of their cells; that Kines was wearing only a towel; that at Reilly's cell the solid outside door was closed, there was blood on the door...