Lussier v. Gunter

• Decision Date: 31 March 1977
• Docket Number: No. 76-1282,76-1282
• Citation: 552 F.2d 385
• Parties: Alan Lloyd LUSSIER, Petitioner, Appellant, v. Frank O. GUNTER et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 385

552 F.2d 385

Alan Lloyd LUSSIER, Petitioner, Appellant, v. Frank O. GUNTER et al., Respondents, Appellees.

No. 76-1282.

United States Court of Appeals First Circuit.

Argued Sept. 15, 1976.

Decided March 31, 1977.

Richard S. Goldstein, Boston, Mass., for appellant Deborah S. Solomon, Asst. Atty. Gen., Boston, Mass., with whom Francis X Bellotti, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for appellees.

Before COFFIN, Chief Judge, CLARK, Associate Justice, ^* (Retired), CAMPBELL, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

The district court dismissed appellant Lussier's petition for a writ of habeas corpus under 28 U.S.C. § 2254 and he appeals.

Lussier was convicted after a jury trial in Massachusetts Superior Court of first degree murder committed with extreme cruelty or atrocity and was sentenced to life imprisonment. The Commonwealth introduced evidence that in 1971, at the time of the murder, Lussier was a part-time resident superintendent at an apartment building on Westland Avenue, Boston. Late in the evening of October 30 he arrived at a Halloween party in the building which was attended by the victim, a 19-year-old student nurse, and scores of other persons. While Lussier was there a fight broke out between one Devereaux and others. The testimony was conflicting as to the amount which Devereaux bled and petitioner's proximity to him. The defense contended that the type O positive blood which was later found caked in small amounts on Lussier's boot and clothing had originated with Devereaux.

There was evidence that Lussier conversed with the victim and several others for about one half hour. Two participants in this conversation testified that they later saw petitioner and the victim leaving the apartment hand in hand. About eighteen hours after the couple had left the party, the victim's badly battered, nude body was found in a vacant apartment in the same building. A downstairs neighbor's testimony recalling sounds of a struggle and a loud thud emanating from the vacant apartment at about 2:30 a. m. on the night of the party tended to show that the murder occurred no later than one half hour after petitioner was observed leaving the party with the victim. The wounds about the victim's head were consistent with those which might have been inflicted by repeated kicks with boots such as those worn by petitioner. The victim's blood was of type O positive, the same type as that found on petitioner's boot. There was testimony indicating that petitioner had been aware that the apartment was vacant, he having assisted in cleaning it on the day before the party.

The prosecutor's closing statement to the jury included a number of comments the propriety of which Lussier has since challenged. The comment which Lussier focuses upon here, and which he argues entitles him to issuance of a writ of habeas corpus as in violation of his privilege against self incrimination, is the following:

"Maybe he told her, there was a party down there. I don't know how he got her down there. There's only one person that could tell us that. But, in any event, she went with him." (Emphasis supplied.)

Lussier's attorney, who does not now represent him, did not object or request a curative instruction from the court. The court's lengthy jury instructions included, however, the following:

"The third fundamental proposition is the following and I am referring to that portion of the statute which is General Laws, c. 233, § 20, Part Third. While the defendant in this case did not testify, I told you that under the law he is presumed to be innocent.

"And, again, it's found in G.L., Ter. Ed. c. 233, § 20, Part Third, and I am quoting: 'the defendant in the trial of an indictment, complaint, or other criminal proceedings shall at his own request but not otherwise be allowed to testify, but his neglect or refusal to testify shall not create any presumption against him.'

"Our Supreme Judicial Court has interpreted that section of the statute and it has said time and time again that this is a privilege of the defendant which is guarded zealously by the courts. And his decision not to testify at the trial is a matter that cannot tend to incriminate him or create in the mind of the fact-finding tribunal, you the jury, in this case, any unfavorable circumstance and no unfavorable inferences can be drawn against him for his failure to so testify.

"The logic for this is simple, because under the law the Commonwealth has the burden of proof to prove guilt of the defendant when it charges him with an offense. That means that it must establish each and every element of the crime with which he is charged and to prove it beyond a reasonable doubt. The defendant is not obliged to prove that he is innocent.

"He is not obliged to assist in any way or to do anything when he is charged with an offense. He can remain absolutely mute. The Commonwealth's burden is to prove that he committed the offense charged. And he does not have to prove that he did not commit it.

"As a matter of fact and as a matter of law, he has no obligations at all to disprove that which the Commonwealth alleges."

On appeal to the Massachusetts Supreme Judicial Court, Lussier argued that the prosecutor's comments were "improper and (he) challenge(d) the failure of the trial judge to order the remarks struck when they were made or to subsequently instruct the jury to disregard them." Commonwealth v. Lussier, 364 Mass. 414, 424, 305 N.E.2d 499, 505 (1973). The court ruled:

"While we do not approve of some portions of the prosecutor's summation to the jury, when viewed in the overall context they are not so prejudicial as to justify reversal. . . . Moreover, there is a simple and obvious reason for the trial judge's alleged 'failure' to strike them or attempt to mitigate their impact as effectively as the defendant now argues was appropriate. That is, defense counsel took no exceptions at the close of the prosecutor's summation, and made no request for special instructions despite ample opportunity to do so . . .. While under G.L. c. 278, § 33E, we will, in appropriate circumstances, act to rectify a substantial risk of a miscarriage of justice, despite the absence of exceptions in the record, we do not feel that such action is warranted here." Id. at 424-25, 305 N.E.2d at 506.

In a footnote the Supreme Judicial Court quoted the prosecutor's remarks which were asserted to be prejudicial. With reference to the comment that "(t) here's only one person that could tell us that," the court stated:

"This last remark would raise serious questions as to the infringement of the defendant's Fifth Amendment right to remain silent, see Griffin v. California, 380 U.S. 609, 611, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), were it not for that portion of the judge's charge specifically explaining to the jury that the defendant had the right not to testify, and that no unfavorable inferences were to be drawn from his exercising that right." Id. at 424 n. 3, 305 N.E.2d at 506 n. 3.

In the district court the Commonwealth resisted the habeas corpus petition on grounds that Lussier had waived objection to constitutional errors in failing to take exception to the prosecutor's comment. According to this argument, Massachusetts' statutory "miscarriage of justice" exception to a waiver is the equivalent of the federal "plain error" rule, Fed.R.Crim.P. 52(b). The Commonwealth also argued that the prosecutor's comment was harmless in light of the trial judge's extensive instructions on the defendant's right to remain silent. The district court denied the petition.

On appeal, Lussier presses the argument that the prosecutor's remark was an unconstitutional and harmful comment on an accused's exercise of the right to remain silent. He contends that his attorney's failure to except was not a "deliberate by-pass" of state court procedure, see Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), for the prosecutor's misconduct had put him in the position of making a "grisly choice" between suffering the comment in silence and objecting, thereby calling further attention to the prejudicial remark. He denies that a calculated tactical decision to forego objection was ever made. Id. at 439, 83 S.Ct. 822. Furthermore, Lussier argues, the Supreme Judicial Court actually reached the constitutional issue, so the Commonwealth's reliance on a theory of waiver is inapposite.

We need not decide whether or to what extent Fay's "deliberate by-pass" standard has been broadened by the Supreme Court in giving effect to state rules concerning waiver. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); P. Bator, et al., Hart & Wechsler's The Federal Courts and The Federal System 256-58 (Supp.1977). We agree with petitioner that the Supreme Judicial Court decided the substance of his constitutional claim. It characterized the prosecutor's offensive comments as "not so prejudicial as to justify reversal." Id., 364 Mass. at 424, 305 N.E.2d at 506. The comment that is the subject of this appeal was said to "raise serious questions as to the infringement of the defendant's Fifth Amendment right to remain silent . . . were it not for that portion of the judge's charge...