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. |
Thomas D. Clifford, Shipman & Goodwin, Hartford, Conn., for petitioner.
Jerrold H. Barnett, Asst. State's Atty., New Haven, Conn., for defendants.
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.
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.
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:
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.
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.
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:
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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