Lacy v. Gardino

• Decision Date: 27 May 1986
• Docket Number: No. 85-1678,85-1678
• Citation: 791 F.2d 980
• Parties: Leonard LACY, Petitioner, Appellant, v. Joseph GARDINO, Superintendent, Northeastern Correctional Center--Concord, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 980

791 F.2d 980

Leonard LACY, Petitioner, Appellant, v. Joseph GARDINO, Superintendent, Northeastern Correctional Center--Concord, Respondent, Appellee.

No. 85-1678.

United States Court of Appeals First Circuit.

Argued Feb. 3, 1986.

Decided May 27, 1986.

Benjamin Hiller with whom Goldstein, Pressman, Hiller & Kruskal, Cambridge, Mass., was on brief, for petitioner, appellant.

Frances L. Robinson, Asst. Atty. Gen., Criminal Bureau, with whom Francis X. Bellotti, Atty. Gen., and Barbara A.H. Smith, Asst. Atty. Gen., Chief, Crim. Appellate Div., Boston, Mass., were on brief, for respondent, appellee.

Before BOWNES and ALDRICH, Circuit Judges, and PETTINE, ^* Senior District Judge.

BOWNES, Circuit Judge.

Leonard Lacy, who was convicted of first degree murder in Massachusetts, appeals a denial by the district court of his petition for habeas corpus. Lacy alleges that his sixth amendment rights to cross-examination, confrontation, and counsel, as well as his right to an unbiased jury, were violated because, during deliberations, one of the jurors peeled tape off two exhibits which had masked facts about Lacy's prior prison commitments.

In a previous habeas petition arising out of this same conviction, Lacy had made a claim that his fourteenth amendment right to due process had been violated by the unmasking. In reviewing that petition, the district court, sua sponte, directed the parties to also brief the sixth amendment implications of the juror's action. The district court then found that while Lacy's sixth amendment right to confrontation had been violated, the error was harmless. Lacy v. Gabriel, 567 F.Supp. 467 (D.Mass.1983). Upon review, we determined that the sixth amendment issue had not been exhausted in the Massachusetts courts and that the district court should not have decided it. Lacy v. Gabriel, 732 F.2d 7 (1st Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 195, 83 L.Ed.2d 128 (1985) (Lacy I ). We then went on to hold that the juror's action did not produce "a species of unfairness which implicates due process" and affirmed the district court's denial of the petition so far as it related to the fourteenth amendment due process claim.

Lacy then returned to the state superior court and requested that the judge who had reviewed this the first time either state that the sixth amendment issues had already been considered or grant a new trial based upon these claims. The superior court judge issued an order which Lacy took to mean that the sixth amendment issues had already been considered and he then returned to the district court. The district court did not read the superior court order as extending the previous hearing to the sixth amendment issues and directed Lacy back to the state appellate court. Lacy then sought leave from a single justice of the Supreme Judicial Court to appeal the superior court order. This was denied leaving Lacy with no further recourse in state court. See Leaster v. Commonwealth, 385 Mass. 547, 432 N.E.2d 708 (1982). Lacy then returned to the district court and filed a new petition for habeas corpus. This petition was denied by the district court on the basis of the memorandum which accompanied the district court's previous consideration of Lacy's habeas petition, 567 F.Supp. 467, as supplemented by a memorandum dictated by the judge in open court. Lacy appeals this denial.

FACTUAL BACKGROUND

Several years after Lacy's conviction for first degree murder, William Wolbach, one of the twelve jurors who sat on the Lacy trial, revealed that he had peeled tape off two exhibits, 4 and 20, portions of which had been masked by the court to prevent information about Lacy's criminal record from reaching the jury. After learning of Wolbach's action, Lacy filed a motion in state court for a new trial. This motion was heard by Superior Court Justice Pierce, who was not the original trial judge. At the hearing, Wolbach was questioned by counsel for Lacy, counsel for the Justice Pierce's finding that the evidence revealed by the unmasking of exhibits 4 and 20 was merely cumulative was based on the information disclosed in exhibit 19, which was a jail identification card bearing a photo of Lacy. The card had been introduced by the defense to show that Lacy did not resemble the description of a witness at the time of the murder. On this card was a notation which read "No. of Former Commitments 5." Lacy did not request to have this notation masked and the exhibit went to the jury with this information fully visible. Exhibit 4 was a front and side mug shot of Lacy introduced by the Commonwealth, with the I.D. number and the words "Police Department, Boston, Mass." masked by tape. Exhibit 20, which was introduced by the Commonwealth to rebut exhibit 19, was a Suffolk County jail card containing a picture of Lacy around the time of the crime. At the request of the defense, the court masked notations on this card which said "Bail $25,000," "Walpole, yes," "Norfolk, yes," "Brighton District Court," and "No. of Former Commitments 3-4." Justice Pierce concluded that the additional information provided to the jury by the unmasking of exhibits 4 and 20 was merely cummulative of the information available through exhibit 19.

Commonwealth, and the court itself. As a result of the hearing and an evaluation of the evidence that came before the jury through Wolbach's unmasking of the exhibits, Justice Pierce ruled that this information was merely cumulative of other information about Lacy's criminal past which was properly before the jury and denied Lacy's motion for a new trial.

Justice Pierce also found that at the time Wolbach removed the tape from the exhibits the vote stood at 11-1 for Lacy's conviction and that Wolbach was the sole holdout juror. He further found that Wolbach had discussed the unsanitized exhibits with the other jurors and subsequently changed his vote to "guilty." In addition to these findings, the transcript of the hearing provides some additional facts about the effect of the unsanitized exhibits upon juror Wolbach. These, however, were not referred to by Justice Pierce in his denial of Lacy's motion for a new trial or his later order indicating that Wolbach's conduct vis-a-vis the sixth amendment was "harmless beyond a reasonable doubt." In response to a question by Justice Pierce, Wolbach indicated that what he learned by unsanitizing the exhibits "had a significant amount to do with" changing his vote. Wolbach also volunteered that at the time he unsanitized the exhibits,

"I was trying to develop--to get somebody else to be on my side.... I felt pretty desperate, and I was trying to get--if I could get one person, I felt that I could maybe hold off, but I couldn't get anybody else. There had been other people, and they fell by the wayside."

The effect of the unsanitized evidence upon the other jurors, according to Wolbach, was simply to strengthen their belief that Lacy was guilty: "And after that, after I had shown them, they turned around and said, 'Well, that's all the more evidence for--you know, all the more reason for getting him off the streets.' " (Wolbach's testimony.) Wolbach testified that after a while "I just gave--I did just give up."

SIXTH AMENDMENT VIOLATION

In its memorandum denying Lacy's first petition for habeas corpus, the district court held that Wolbach's conduct amounted to a violation of Lacy's sixth amendment right to confront evidence against him. This holding was not disturbed by the supplemental memorandum accompanying the denial of Lacy's second habeas corpus petition. The State argues that Wolbach's conduct does not amount to a violation of Lacy's sixth amendment right of confrontation because the information revealed through the unmasking was substantially similar to information already before the jury unrelated to Wolbach's unmasking. During the trial, the jury had heard testimony from a police officer, which was then stricken from the record, concerning Lacy's involvement in other criminal activity. The trial judge instructed the jury as to the proper consideration to be given to Lacy's In Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), the Supreme Court stated: "In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." Id. at 472-73, 85 S.Ct. at 549-50. See also Parker v. Gladden, 385 U.S. 363, 364-65, 87 S.Ct. 468, 470-71, 17 L.Ed.2d 420 (1966). Jury exposure to facts not admitted during trial violates the sixth amendment right to trial by jury by permitting evidence to reach the jury which has not been subjected to confrontation or cross-examination and to which counsel has not had the opportunity to object or request a curative instruction. Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir.1980), cert. denied, 450 U.S. 1035, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981); United States v. Howard, 506 F.2d 865, 866 (5th Cir.1975). That counsel had an opportunity to confront or object to similar facts does not change the fact that specific information was disclosed to the jury in violation of defendant's sixth amendment rights of confrontation and cross-examination. Accordingly, we find that the effect of Wolbach's conduct created an error of constitutional proportions.

prior bad acts. The jury had before it during deliberations even without any unmasking: exhibit 4, a photograph in standard front and profile "mug-shot" form, although with the Boston Police and I.D. number masked; exhibit 19, upon which were exposed the words, "No. of Former Commitments 5"; and exhibit 20, upon which were exposed the words "Suffolk County Jail," "WARRANT," and "Offense Att. Larceny." The State argues that because the information before the jury, which Lacy...