Malley v. State of Connecticut

• Decision Date: 15 June 1976
• Docket Number: Civ. No. H-74-407.
• Citation: 414 F. Supp. 1115
• Court: U.S. District Court — District of Connecticut
• Parties: Edward MALLEY, Jr. v. STATE OF CONNECTICUT and John Manson, Commissioner of Correction.

414 F. Supp. 1115

Edward MALLEY, Jr. v. STATE OF CONNECTICUT and John Manson, Commissioner of Correction.

Civ. No. H-74-407.

United States District Court, D. Connecticut.

June 15, 1976.

Thomas D. Clifford, Shipman & Goodwin, Hartford, Conn., for petitioner.

Jerrold H. Barnett, Asst. State's Atty., New Haven, Conn., for defendants.

MEMORANDUM OF DECISION

BLUMENFELD, District Judge.

On November 24, 1970, the petitioner was convicted by a jury of one count of possessing a controlled drug (LSD),¹ and one count of selling the same drug.² On December 15, 1970, the trial court denied his motion to set aside the verdict and entered judgment. Four years later the Connecticut Supreme Court affirmed the conviction, over the strong dissent of Justice Bogdanski.³State v. Malley, 167 Conn. 379, 355 A.2d 292 (1974). In this petition he challenges the constitutionality of his conviction and seeks a writ of habeas corpus. Jurisdiction exists under 28 U.S.C. §§ 2241 and 2254.

I. Facts

The State's case was composed mainly of the testimony of two undercover agents, who testified that they had been approached by the petitioner, and that he offered to sell them some LSD. They testified that a short time later the sale was consummated, and that the substance, upon analysis, was conclusively identified as LSD.

The petitioner denied ever having seen the officers before, and presented evidence that he could not have been at the site of the sale at the time the officers stated it occurred. This alibi evidence consisted of the testimony of employees of a stereo store and an insurance agency, neither of whom were related to or acquainted with the petitioner, that he was present in one and then the other place of business at the times in question. The employee of the insurance agency was able to fix the time with some accuracy due to a specific phone call which he received while the petitioner was present.

The question for the jury, then, was essentially one of credibility. After seven hours of deliberation, and after having the testimony of one of the officers and the insurance company employee read to them, the jury determined the credibility issue against the petitioner and returned its verdict.

II. Petitioner's Claim

The chief claim presented by the petitioner is that the conduct of the prosecutor throughout the trial, but especially in his closing argument to the jury, was so prejudicial as to have denied him a fair trial in violation of the due process clause of the fourteenth amendment. Additionally, petitioner claims that the prosecutor's references to irrelevant and inflammatory material in his rebuttal argument placed an impermissible burden on his exercise of his right to confront the witnesses against him.

Unfortunately, in order to convey the complete flavor of the argument employed by the prosecutor, it is necessary to quote at length from his rebuttal:

"Ladies and Gentlemen of the Jury:

"The basic issue I submit in this case is whether you believe the police officers or whether you believe this accused, Mr. Malley. The police officers have testified here before you. They have blown their cover. They come in here and testify before you, two excellent trained investigators, undercover men who, you heard their testimony, purchased over a hundred various items of heroin, LSD, and other controlled drugs. They have come in and we have lost them as undercover men due to this case, but we put them on here as witnesses before you, because this LSD problem and the sale of it is such a serious offense.

* * * * * *

"This question of the use of these psychedelic or hallucinagenic sic drugs has inflamed our country and has put many of us to asking questions about the use of this drug by our young people.

"We often hear the expression the drug scene. And when we think of the drug scene, we think of what we see on television, what we hear about, the group in Greenwich Village, young people dressed in hippie style using marijuana, LSD, speed, some one of these other drugs who turn on, but that is not the drug scene as we see it. That is not the drug scene as you have seen it here portrayed before you twelve people on this jury.

"What you have seen here is the sale of seven little tiny pills for $25, almost $3.60 apiece. That is a commercial business and it is designed to destroy the youth of our country and it is doing so. And it is carried on by men like Mr. Malley who sell indiscriminately, so indiscriminately that once in a while they make a mistake and they sell to two bearded, funny, easy to get along with fellows that drive around in an old car.

* * * * * *

"Now with respect to this drug scene, there are few people fighting it and a few of them are the two that testified here. There aren't many others, and we have lost them due to this trial.

* * * * * *

"Now, ladies and gentlemen of the jury, as Mr. Mellon says, you have a serious and solemn responsibility here to decide the guilt or innocence of this accused. You also have a serious responsibility to society for, as has been said many years ago, `To let the guilty go free is to do thereafter with their hands all the crimes they may subsequently commit.'

"You ladies and gentlemen of the jury are aware of the problem in our society caused by drugs. This is your opportunity to return a verdict that reflects that concern. The State has submitted direct eyewitness evidence of police officers in respect to this man, and we respectfully suggest that the only verdict possible In sic this case is a verdict of guilty.

"Thank you."⁴

This argument built upon and was preceded by several incidents in which the prosecutor had attempted to explore the effect of LSD on users of the drug, especially minors.⁵

The question for this court is whether, by employing these arguments, the prosecutor effectively denied the petitioner his constitutional right to a fair trial.

III. Standard of Review

At the outset, it is clear that both the questions asked by the prosecutor and his rebuttal argument, but especially the argument, transcended the bounds of propriety. Were this court exercising appellate review there is no question but that the prosecutor's inexcusable conduct would compel reversal. The Connecticut Supreme Court recognized as much when it stated that the prosecutor's comments were "improper and wholly irrelevant to the issue of the guilt or innocence of the defendant." State v. Malley, 167 Conn. 379, 386, 355 A.2d 292, 296 (1974).⁶ The standard of review which this court must apply is not, however, that of reversible error.

It is established that misconduct on the part of the prosecutor can rise to the level of a constitutional deprivation. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). In deciding whether the prosecutor's conduct during the course of this trial is a sufficient ground to support the issuance of a writ of habeas corpus, this court must determine if that conduct created "a situation so prejudicial to the petitioner that he was denied a fair trial within the meaning of the due process clause of the Fourteenth Amendment." United States ex rel. Castillo v. Fay, 350 F.2d 400, 401 (2d Cir. 1965), cert. denied, 382 U.S. 1019, 86 S.Ct. 637, 15 L.Ed.2d 533 (1966). The Supreme Court has cautioned that the proper standard of review in this type of case is

"`the narrow one of due process, and not the broad exercise of supervisory power that it would possess in regard to its own trial court.' We regard this observation as important for not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a `failure to observe that fundamental fairness essential to the very concept of justice.' Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941)."

Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974).

This is not, however, a case, as was Donnelly, of one ambiguous comment made during the course of a long trial. Rather, the transcript discloses an effort on the part of the prosecutor to inflame the prejudices of the jury at every possible opportunity by: 1) introducing extraneous and irrelevant evidence concerning the effects of drugs on users, especially minors, and their families; 2) intimating, without any evidentiary support, that the petitioner had been involved in a number of earlier drug transactions for which he had not been brought to justice; 3) inveighing against the "drug culture" and implying, again without evidentiary support, that the petitioner was in some way connected with it; and 4) attempting to bolster the agents' credibility with the unsupported assertion that the State had considered the case important enough to "sacrifice" the future ability of the agents to operate by "blowing their cover" and having them testify at the trial.

The prejudicial effect of linking a defendant to a plot to sell drugs to minors is self-evident. In United States v. Bugros, 304 F.2d 177 (2d Cir. 1962), the Second Circuit reversed a conviction because the prosecutor had raised the implication that the defendant had hidden narcotics where a child could easily have discovered them. In this case, however, the prosecutor went even further, stating that:

"What you have seen here is the sale of seven little tiny pills . . .. That is a commercial business and it is designed to destroy the youth of our country and it is doing so. And it is carried on by men like Mr. Malley who sell indiscriminately . . .."⁷

The prosecutor further prejudiced the case against the petitioner by implying that he had participated in previous sales of drugs, but had escaped punishment. In addition to the above quotation, which seemingly linked the petitioner to a broad conspiracy, the prosecutor continued:

"But something went wrong with Mr. Malley this time because these men the agents came into Court and testified before you ladies and gentlemen of the

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