LaFrance v. Bohlinger, 73-1327.

• Decision Date: 28 June 1974
• Docket Number: No. 73-1327.,73-1327.
• Citation: 499 F.2d 29
• Parties: Peter F. LaFRANCE, Petitioner, Appellee, v. George H. BOHLINGER, III, etc., Respondent, Appellant.
• Court: U.S. Court of Appeals — First Circuit

499 F.2d 29 (1974)

Peter F. LaFRANCE, Petitioner, Appellee, v. George H. BOHLINGER, III, etc., Respondent, Appellant.

No. 73-1327.

United States Court of Appeals, First Circuit.

Argued January 5, 1974.

Decided June 28, 1974.

Bernard Manning, Asst. Atty. Gen., Boston, Mass., with whom Robert H. Quinn, Atty. Gen., John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., and David A. Mills, Asst. Atty. Gen., Chief, Crim. Appellate Section, Boston, Mass., were on brief, for appellant.

Alexander Whiteside, II, Boston, Mass. by appointment of the Court, with whom Putnam, Bell & Russell, Boston, Mass., was on brief, for appellee.

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

LEVIN H. CAMPBELL, Circuit Judge.

The main question on appeal is whether a state judge committed constitutional error when he permitted the district attorney to use a witness' prior statement to the police to impeach the witness without a judicial inquiry into its voluntariness and without instructing the jury to pass on its voluntariness. Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The district court ruled that the trial judge's treatment of the statement, which implicated the accused as well as the witness in the crimes for which the former was on trial, violated the right of the accused to due process of law. Massachusetts contends that the Jackson requirements apply only to confessions of an accused, and that procedures required in that case should not be extended to the prior statements of a witness.

The accused, LaFrance, petitioned in the district court for a writ of habeas corpus, and this appeal is from allowance of the writ. He sought release from a Massachusetts correctional institution where he was confined after convictions for manslaughter, leaving the scene of an accident, and operating a motor vehicle without a license and so as to endanger. The facts are set forth comprehensively in the district court's opinion, 365 F.Supp. 198 (D.Mass.1973), as well as in the earlier Supreme Judicial Court opinion, affirming LaFrance's state conviction, 1972 Mass.Adv.Sh. 177, 278 N.E.2d 394. We thus restate only the most essential facts.

LaFrance was indicted for the hit and run death of Paul Butler, who had been struck by a speeding car while standing on the side of the road. Neither the car nor its occupants were identified at the time, and the car itself was never found. At a jury trial in the Superior Court the prosecution presented evidence that LaFrance was aware of the accident suspiciously soon after it had occurred, that he had attempted to get the people whose apartment he had been visiting to provide a false alibi, and that he had admitted guilt in a telephone call to one Wendall Frost. By itself, this evidence was legally sufficient to convict, as the Supreme Judicial Court found. Commonwealth v. LaFrance, supra, 278 N.E.2d at 396. In defense LaFrance took the stand to deny having left the apartment that evening, a complete alibi if believed. Earlier LaFrance's companion, Richard Brown, who was called as a government witness, had likewise testified that he and LaFrance remained at the apartment all evening. However, the prosecutor had shown Brown a typed statement which Brown acknowledged having signed at the police station. In the statement Brown recounted that LaFrance and he had left the apartment, climbed into a stolen car, and, with LaFrance driving, had struck something.

With the court's permission, and over the objections of the defense, the district attorney led and vigorously examined Brown with respect to the contents of the statement. When asked why, in light of his current testimony, he had said what he did, Brown replied that officer Dale Clark had treatened him; he testified that the statement was, in effect, a police fabrication signed because he was strung out on drugs, frightened, and willing to say anything to get back to his cell. Brown denied that the statement was given of his own free will, and persisted in maintaining that it was false.¹

The court advised the jury that the statement was to be regarded solely to determine whether Brown's testimony was truthful and not as evidence that LaFrance had committed the crimes charged. The officers present when Brown gave the statement also testified, asserting that Brown provided all the details, seemed "normal", and made no physical complaints, although he "broke down and shook and wept; and said he thought this whole thing was a dream."

The district court decided three issues. First, it rejected, as do we, the Commonwealth's contention that LaFrance did not exhaust state remedies. Although the opinion of the Supreme Judicial Court dealt mostly with state law issues, LaFrance's brief before the court raised, if secondarily and without much focus, the relevant federal claims. Both Jackson, supra and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed. 2d 593 (1967), were cited, and LaFrance specifically complained of the court's neglect "even to inquire whether the statment had been voluntarily made."

Second, the district court rejected what it labelled the "confrontation contention", namely that LaFrance was deprived of the right to confront the witness against him when the contents of Brown's out of court statement were put before the jury. We agree that neither Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), nor Douglas v. Alabama, 380 U. S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), apply. In neither case could the witness whose prior statement was in issue be cross examined. Brown, to the contrary, was present and available for cross examination; he did not invoke his privilege against self-incrimination. There was no inability to confront. Nelson v. O'Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971); California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

The final point raised before the district court was that Brown's inculpatory statement should not have been admitted, even for impeachment, without a determination that it was voluntary. The district court, equating the statement with a confession, held that it could not be admitted without a prior judicial determination of voluntariness and without submission of the issue of voluntariness to the jury. We agree that there was a sufficient factual issue concerning whether the statement was coerced to necessitate a prior judicial hearing, out of the jury's presence. But we do not agree that the constitution required the court to submit the issue of voluntariness to the jury.

In Jackson the Court emphasized that the Fourteenth Amendment forbade the use of an involuntary confession not only because of its probable unreliability but also,

"because of the `strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.\'" Id. at 386, 84 S.Ct. at 1785.

Indeed this, rather than emphasis upon presumed unreliability, was the rationale, Mr. Justice White, the author of Jackson, made this point unmistakably in Lego v. Twomey, 404 U.S. 477, 484-485, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972):

"We noted in Jackson that there may be a relationship between the involuntariness of a confession and its reliability. footnote omitted But our decision was not based in the slightest on the fear that juries might misjudge the accuracy of confessions and arrive at erroneous determinations of guilt or innocence. . . .

"Quite the contrary, we feared that the reliability of even coerced confessions could impermissibly influence a jury\'s judgment as to voluntariness. The use of coerced confessions, whether true or false, is forbidden because the method used to extract them offends constitutional principles. Rogers v. Richmond, 365 U.S. 534, 540-541, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). footnote omitted The procedure we established in Jackson was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances. Nothing in Jackson questioned the province or capacity of juries to assess the truthfulness of confessions."

The rationale is important, because if the only infirmity of Brown's statement could be its possible unreliability, we might well conclude that the jury was the proper party to pass on that. Use of the statement was limited to impeachment, which meant that the jury was supposed merely to regard it as an item of evidence against which to weigh Brown's current testimony. Deciding what weight to give evidence is a jury's traditional task. There is no reason to assume that a judge is better equipped.

But Jackson and Lego reject combining into a single jury question the issue of coercion and that of the statement's weight and reliability. They hold that the court (or a separate jury apart from the trial jury) must pass on voluntariness to make certain that decision on that question is not influenced by impressions of guilt or innocence. At stake is not "improving the reliability of jury verdicts", see Lego, supra at 486, 92 S.Ct. 619, but screening out evidence which, if found to be induced by coercion, is unacceptable regardless of its truth or untruth.

"Due process of law requires that a coerced confession be excluded from consideration by the jury. It also requires that the issue of coercion be tried by an unprejudiced trier, and, regardless of the pious fictions indulged by the courts, it is useless to contend that a juror who has heard the confession can be uninfluenced by his opinion as to the truth or falsity of it. . . . The rule excluding a coerced confession is more than a rule excluding hearsay. . . . Morgan, Some Problems of Proof Under the Anglo-American System of Litigation (1956), 104-105." Jackson, supra at 382-383 n. 10, 84 S.Ct. at 1784.

At first...