Lacy v. Gabriel
| Decision Date | 11 April 1984 |
| Docket Number | No. 83-1615,83-1615 |
| Citation | 732 F.2d 7 |
| Parties | 15 Fed. R. Evid. Serv. 1313 Leonard LACY, Petitioner, Appellant, v. Harold F. GABRIEL, Respondent, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Benjamin Hiller, with whom Goldstein, Pressman & Hiller, Cambridge, Mass., was on brief, for petitioner, appellant.
Frances L. Robinson, Asst. Atty. Gen., Criminal Bureau, Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Frederick W. Riley, Asst. Atty. Gen., Chief, Criminal Bureau, and Barbara A.H. Smith, Asst. Atty. Gen., Chief, Criminal Appellate Division, Boston, Mass., were on brief, for respondent, appellee.
Before CAMPBELL, Chief Judge, ALDRICH, Circuit Judge, and PETTINE, * Senior District Judge.
Leonard Lacy, who was convicted in a Massachusetts court of first degree murder, applied for habeas corpus in the United States District Court, 567 F.Supp. 467, for the District of Massachusetts. He alleged, among other things not now material, that his right to due process under the fourteenth amendment had been denied when one of the jurors in the state trial improperly peeled tape off two exhibits. The tape masked entries which revealed facts about Lacy's criminal past. Although Lacy had not alleged in the state courts, nor in his federal petition, that the juror's conduct implicated the confrontation clause of the sixth amendment, the district court thought that the problem was most properly analyzed under that constitutional provision rather than under principles of due process. He ordered the parties to brief and argue this point, and they did so. The district court then found that Lacy's sixth amendment right to confrontation had been violated, but ruled the error harmless and denied the petition per Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
We affirm the dismissal, but hold that the present petition is limited solely to the due process claim. That was the claim Lacy raised and exhausted in the Massachusetts courts, whereas the sixth amendment issue was never exhausted in the state courts nor did Lacy raise it himself until instructed to do so by the district judge.
In a state criminal trial, a jury found Lacy guilty of first degree murder, and the Massachusetts Supreme Judicial Court (SJC) affirmed his conviction. Commonwealth v. Lacy, 371 Mass. 363, 358 N.E.2d 419 (1976). Several years later, William Wolbach, one of the twelve jurors who sat on the Lacy trial, revealed that he had peeled tape off two exhibits, Exhibits 4 and 20, portions of which had been masked by the court ostensibly to prevent information concerning Lacy's criminal record from reaching the jury. On August 8, 1980, after learning of the juror's action, Lacy filed a motion in state court for a new trial on the grounds that his right to due process had been violated.
Lacy's motion was heard by Superior Court Justice Pierce (who was not the original trial judge). After a hearing at which counsel for Lacy, counsel for the Commonwealth, and the court itself questioned juror Wolbach, Justice Pierce denied the motion for new trial and issued a memorandum outlining his findings.
To understand Justice Pierce's ruling, it is necessary to describe the history of the exhibits in issue. At Lacy's criminal trial, a dispute had developed over Lacy's appearance shortly after the murder. In order to show that he did not resemble the man described by witnesses as the one who had entered the elderly victim's apartment shortly before the fatal beating, Lacy introduced as Exhibit 19 a jail card bearing a photo of himself. The card contained the line "No. of Former Commitments 5." Lacy did not request to have this legend masked, and the exhibit went to the jury with this information fully visible.
In order to rebut Lacy's identification evidence, the Commonwealth introduced as Exhibit 20 a different jail card, also with a photo affixed, which contained the line "No. of Former Commitments 3-4." The card also contained the notations "(Brighton Dist. Ct.)," "($25,000 Bail)," "Norfolk," and "Walpole." These latter four notations were masked with tape. Another picture of Lacy, introduced as Exhibit 4, had tape placed across the numbers which appeared on Lacy's chest. Juror Wolbach, the lone holdout, testified that he removed the tape from the two exhibits as "a desperation move on my part to try to get somebody on my side." Since the revealed information did not, understandably, affect the other jurors, Wolbach "gave up" and voted with the other elevent jurors for conviction. Justice Pierce found that "[w]hile Exhibits 4 and 20 in this case were sanitized, the information which informed the jurors of defendant's prior involvement with the law was put before the jury by defendant through the introduction of Exhibit 19."
Lacy next filed a motion for leave to appeal Justice Pierce's denial of his motion for a new trial. This motion was denied by an order of a single justice of the Massachusetts Supreme Judicial Court. Lacy in turn appealed from this denial, but was turned back because a decision of a single justice is not reviewable. Leaster v. Commonwealth, 385 Mass. 547, 432 N.E.2d 708 (1982). Lacy then came to the federal court.
The matter was assigned to a magistrate who recommended granting the writ. The magistrate conceded that the jury could have inferred that Lacy had been incarcerated on several previous occasions from Lacy's own evidence, in particular Exhibit 19. He believed, however, that the masked entries differed "qualitatively" from those properly before the jury because the masked entries supported an inference of serious prior criminal convictions as opposed to unspecified commitments. This, he reasoned, resulted in unfairness sufficient to violate due process.
The Commonwealth objected to the magistrate's recommendation, and the matter was considered de novo by the district judge who, sua sponte, ordered the parties to consider the sixth amendment implications of juror Wolbach's activities as well as the more general due process implications. The court stated,
[a]rguments ... have thus far been restricted to the issue of whether petitioner was denied due process because his conviction was obtained through "fundamentally unfair" procedures. [The parties shall file supplemental memoranda] addressing the issue of whether he was denied his sixth amendment right to confront witnesses and evidence against him.
The district court then analyzed the juror misconduct under the sixth amendment, finding a constitutional violation. The court believed, however, that existence of the violation did not automatically require issuance of the writ. It felt that it should conduct harmless error analysis under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and, upon doing so, concluded that the violation was harmless beyond a reasonable doubt. In so concluding, the district court emphasized the overwhelming evidence of Lacy's guilt and the fact that the vote stood at 11 to 1 in favor of conviction before the tape was removed.
The Commonwealth argues that the issue of whether or not the juror's misconduct violated the sixth amendment and, if so, whether it amounted to harmless error, was never exhausted in the Massachusetts courts. For this reason, the Commonwealth urges, we should order dismissal of the entire habeas petition, on the ground that it is a "mixed petition" containing both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In that case, the Court required dismissal of mixed petitions, leaving the petitioner with the choice of either returning to the state courts to exhaust all the claims or else resubmitting the habeas petition to the district court after limiting it to exhausted claims.
The district court ruled that consideration of a sixth amendment claim, which Lacy pressed only after the district court raised the issue on its own motion, did not require dismissal of the petition under Rose. The district court acknowledged that principles of comity require that the federal courts only consider those claims that the state courts have had a fair opportunity to consider. However, it reasoned that this principle "does not necessarily require that every legal theory presented to the federal court must have been presented in precisely the same manner to the state court." The district court felt that the state courts and itself were confronted with the same ultimate issue for disposition, namely, whether the error was harmless beyond a reasonable doubt, and that this was so whether the complaint was framed in the general terms of fundamental fairness and due process or more specifically articulated under the sixth amendment. Thus, though the district court conducted a sixth amendment analysis, it viewed itself as disposing of the due process claim as well.
We believe the district court erred in finding the sixth amendment issue indistinguishable from those previously exhausted. To be sure, the petitioner in Rose had brought four separate grounds for relief into federal court, each of which was based on a different alleged miscue at trial, only two of which were presented to the state courts. Here Lacy complains of a single event, the removal of the tape, and now argues that the incident violates two constitutional rights, due process and confrontation, though he only argued a violation of due process in the state court. Nevertheless, this is a distinction without a difference for we have said on numerous occasions that a habeas petitioner cannot present either new factual allegations or new legal theories that transform his claim or cast it in a significantly different light. Williams v. Holbrook, 691 F.2d 3, 6 (1st Cir.1982) (...
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