Koski v. Samaha

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before COFFIN; LEVIN H. CAMPBELL; COFFIN
• Citation: Koski v. Samaha, 648 F.2d 790 (1st Cir. 1981)
• Decision Date: 20 May 1981
• Docket Number: No. 80-1452,80-1452
• Parties: Norma A. KOSKI, Plaintiff, Appellee, v. Unwar J. SAMAHA, Clerk, Rockingham County Superior Court, Defendant, Appellant.

Page 790

648 F.2d 790

Norma A. KOSKI, Plaintiff, Appellee, v. Unwar J. SAMAHA, Clerk, Rockingham County Superior Court Defendant, Appellant.

No. 80-1452.

United States Court of Appeals First Circuit.

Argued Oct. 10, 1980.

Decided May 20, 1981.

Donald J. Perrault, Claremont, N. H., Atty., with whom Gregory H. Smith, Acting Atty. Gen., and Brian T. Tucker, Concord, N. H., Atty., were on brief, for defendant, appellant.

Benjamin Hiller, Cambridge, Mass., by appointment of the court, for plaintiff, appellee.

Before COFFIN, Chief Judge, PELL ^* and LEVIN H. CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The Attorney General of New Hampshire brings this appeal from the district court's grant of habeas corpus ¹ to Norma A. Koski, freeing her from a state conviction for criminal trespass.

I.

New Hampshire has a two-tiered system for criminal trials, not unlike that described in Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). Defendants are first tried before a judge in the state district court. If convicted, they have a right to demand a trial de novo before a jury in the superior court, the latter being New Hampshire's trial court of general civil and criminal jurisdiction. In the present case, Norma A. Koski was one of about 1,400 persons arrested while demonstrating against the construction of a nuclear power plant on May 1 and 2, 1977. The arrest grew out of the "occupation" of the plant site; Koski was charged with criminal trespass under N.H.Rev.Stat.Ann. § 635:2, an offense carrying a maximum penalty of one year's imprisonment and a fine of $1,000. N.H.Rev.Stat.Ann. § 651:2. Along, it seems, with many others, she was tried and convicted in the Hampton District Court on May 13, 1977. She was sentenced to 15 days' imprisonment, with 13 days credit for time already served, and a $100 fine. Like most others, Koski then demanded a de novo trial, with the result that her sentence was vacated and a new proceeding instituted against her on the identical charge in the Rockingham County Superior Court. Her case was not reached until May 1979, at which time she was tried and found guilty by a jury. During this trial Koski insisted upon appearing pro se, although counsel sat with her in the courtroom. The justice who presided at the trial thereupon sentenced her to six months' imprisonment, with three months suspended and a $200 fine. (This sentence involved a month's less actual imprisonment than had been recommended by the Assistant County Prosecutor, who recommended six months' imprisonment with two months suspended.) ²

Koski appealed her conviction to the Supreme Court of New Hampshire. State v. Koski, 120 N.H. 112, 411 A.2d 1122 (1980). In her appeal she argued that the superior court had failed to state an element of the offense of criminal trespass in its charge to the jury. She also insisted that she had a constitutional due process right to a so-called competing harms defense, i. e., based on her belief that she had a license or privilege to be on the property because of the overriding hazard from nuclear activity. She further claimed error in the superior court's refusal to let her mother testify to explain "what I was doing and why" in going on the property. And finally she attacked her three months' jail sentence as disproportionate under the eighth amendment, as violative of equal protection and freedom of speech, and also as violative of due process because it was significantly harsher than her initial sentence and designed to discourage appeals by other co-defendants. To support this last claim Koski appended to her brief in the Supreme Court of New Hampshire a newsclipping, ³ and three affidavits, one of which was her own:

"I, Norma Koski say that I was in Rockingham Superior Court on May 21, 1979, about to go in for the drawing of the jury, when Assistant County Attorney Peter A. McFarlane pointed his finger at me and said, 'Remand now back to District Court. We're slapping them with six-month sentences. I don't care if you're a nun, or what, we're slapping them with six-month sentences. Remand now.' " ⁴

The New Hampshire court rejected all of these contentions and affirmed. With respect to Koski's claim that the higher sentence after de novo trial violated due process, the court cited Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); and Lovett v. Butterworth, 610 F.2d 1002 (1st Cir. 1979), cert. denied, 447 U.S. 935, 100 S.Ct. 3038, 65 L.Ed.2d 1130 (1980), and acknowledged it was "well established" that a heavier penalty could not properly be exacted "merely because the defendant chooses to exercise his right to a new trial." As the court pointed out, Pearce, Blackledge and Lovett stand "as a check against both prosecutorial and judicial vindictiveness, and also prevent the chilling of the exercise of such rights by other defendants who must make their choices under similar circumstances in the future." 120 N.H. at 116, 411 A.2d at 1124. Looking in general to the problem of a harsher sentence being imposed at the second tier of a two-tier system, the court quoted language from Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), to the effect that since a de novo trial represents a completely fresh determination of guilt or innocence, and is not an "appeal on the record," a later more severe sentence is not a vindictive penalty in such a proceeding. 407 U.S. at 116-18, 92 S.Ct. at 1960-61. As to the specific case before it, though the documents submitted by Koski were not properly part of the appellate record under the rules of the Supreme Court of New Hampshire, see Koski, supra, 491 F.Supp. at 436, the supreme court took notice of the newspaper clipping by criticizing the prosecutor for the remarks he was reported to have made. (The State did not move to have the documents excluded nor did the supreme court exclude them sua sponte.) Nevertheless, the court expressly found no "indicia of vindictiveness on the part of either the judge or prosecutor in this case" and concluded its opinion with the further finding that "(t)he sentence in this case was not imposed to deter de novo trials, but to deter illegal actions " 120 N.H. at 117, 411 A.2d at 1125.

Upon losing in the Supreme Court of New Hampshire, Koski petitioned for habeas corpus in the District Court for the District of New Hampshire. ⁵ Acting on cross-motions for summary judgment, the district court granted the writ. Koski, supra, 491 F.Supp. 432. In its comprehensive opinion, the district court relied heavily on the news clipping and affidavits that Koski had appended to her brief in the Supreme Court of New Hampshire. The district court observed that the respondent had never denied their truth nor objected to their use. It ruled that while ordinarily these papers would be outside the record, they had been "fully considered" by the state court and, given respondent's acquiescence in their use up to the present, should now be treated as part of the state record for habeas review. Respondent does not now appeal from that ruling.

The district court went on to find that the prosecutor's conduct had been so "vindictive" as to constitute a violation of constitutional due process standards. It rejected the state's argument that due process is not violated by a prosecutor's threats of higher sentences upon appeal, in that the prosecutor has no control over sentencing, sentencing being rather a matter within the sole authority of the judge. While the district court recognized that the "prosecutorial vindictiveness" held in Blackledge v. Perry to have violated due process involved the bringing of a new charge, a matter within the prosecutor's power, the court concluded, nonetheless, that Pearce, Blackledge and Lovett reflected "a prophylactic rule directed against" apprehension on a defendant's part of receiving a vindictively imposed penalty for the assertion of rights. The question, as the court saw it, was not whether the prosecutor actually had power to carry out his threats of imposing harsher sentences upon appeal, but whether Koski reasonably feared that he did.

"Here the limits of due process dictate that the prosecutor not be allowed to create in an unknowing defendant's mind the impression that the prosecutor himself can insure imposition of a higher sentence upon appeal and thus place a defendant in fear of that consequence should she exercise a right vested in her by the State itself."

491 F.Supp. at 441. The court distinguished Colten v. Kentucky (holding that requirements imposed in North Carolina v. Pearce were inapplicable to two-tier procedure) on the ground that it related only to vindictiveness of the trial judge, not that of a prosecutor. Relief was held to require not mere retrial or resentencing but complete release from custody.

II.

We go first to the propriety of considering the affidavits and clipping attached to Koski's brief in the Supreme Court of New Hampshire as part of the state record under habeas review. As the district court indicated, it is clear that under New Hampshire practice such materials would ordinarily form no part of the record before the Supreme Court of New Hampshire. However, there was no objection made below nor has the New Hampshire Attorney General contested in his brief or oral argument before us the district court's reliance upon these documents. The question is thus whether any error involved in relying on these documents is of the type we should note sua sponte and contrary to the apparent desires of the parties. We think not. There is a colorable claim that the Supreme Court of New Hampshire considered the documents in spite of its rules. Given this and the posture of the respondent, we have little choice but to accept the view of the district court that these materials form part of the record subject to habeas review.

III....