Martineau v. Perrin

• Decision Date: 25 June 1979
• Docket Number: No. 78-1368,78-1368
• Citation: 601 F.2d 1196
• Parties: Frederick J. MARTINEAU, Petitioner-Appellant, v. Everett I. PERRIN, Jr., Warden, New Hampshire State Prison, Respondent- Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1196

601 F.2d 1196

Frederick J. MARTINEAU, Petitioner-Appellant, v. Everett I. PERRIN, Jr., Warden, New Hampshire State Prison Respondent- Appellee.

No. 78-1368.

United States Court of Appeals First Circuit.

Argued March 14, 1979.

Decided June 25, 1979.

David Feld, Boston University Law Student with whom John Leubsdorf, Associate Professor of Law, Boston, Mass., court-appointed counsel, and Wayne Dziedzic, Boston University Law Student, Boston, Mass., were on brief, for petitioner-appellant.

Richard B. Michaud, Asst. Atty. Gen., Concord, N. H., with whom Thomas D. Rath, Atty. Gen., Concord, N. H., was on brief, for respondent-appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE, District Judge. ^*

BOWNES, Circuit Judge.

The central issue in this habeas corpus appeal is whether petitioner, Frederick J. Martineau, waived his sixth amendment right to a public trial.

We outline the facts and legal steps leading to this appeal. Petitioner was tried and convicted of attempted burglary in a jury waived trial that lasted for six days. He promptly brought a petition for writ of habeas corpus in the New Hampshire Supreme Court on the grounds that he was denied a public trial because the doors to the courtroom were locked and the public excluded for a portion of the trial. The case was remanded to the New Hampshire Superior Court to make findings since disputed facts were involved. See LaBelle v. State, 108 N.H. 241, 231 A.2d 480 (N.H.1967). The Superior Court, after a full evidentiary hearing, made eight specific findings of fact and concluded that petitioner had suffered no prejudice and "in any event to the extent that the outer doors were locked prior to March 15, 1976, the same was waived." ¹

The facts as found by the New Hampshire Superior Court can be summarized as follows. There was a hearing on a motion to suppress on March 3, 4, and 8, 1976, immediately prior to the trial, at which the courtroom was locked pursuant to an order of the court and without objection by petitioner or his counsel. The trial in chief commenced on March 9 and continued on the 10th, 11th, 15th, 16th and 17th. The court at no time directed the courtroom doors to be locked, but did continue its suppression hearing order that all witnesses be sequestered. It is not possible to determine from behind the bench whether the doors to the courtroom are locked or unlocked. Neither petitioner nor his attorney objected at any time as to how the witnesses were admitted to the courtroom or as to those present in the courtroom. On March 15, the court learned for the first time from a court attendant that the outer doors to the courtroom were being unlocked and locked as each witness entered the courtroom and that the petitioner had complained about this. The court immediately ordered that the courtroom doors remain unlocked for the balance of the trial.

The New Hampshire Supreme Court, based on its review of the transcript of the Superior Court evidentiary hearing, made specific findings and concluded that petitioner had waived his right to a public trial. Martineau v. Helgemoe, 379 A.2d 1040 (N.H.1977). ² The pertinent portions of its opinion are:

At some time, it was learned by defense counsel that the doors were locked. During a discussion with Martineau, his lawyer told him he was not disturbed and it was probably to his advantage because it would keep adverse press coverage down and also would prevent the police from planting someone in the courtroom to report back the testimony to the next witness thus reducing the effectiveness of the sequestration order. His counsel testified that he thought Martineau agreed with him at that time. Later when Martineau brought up the subject, counsel told him that if he wanted to "bring it to the court's attention that he had a perfect right to stand up and tell the court that at any time he wanted to." At no time did Martineau or counsel inform the court of the locked doors. The court learned of the locked doors through a bailiff who stated that he heard "some complaint . . . by persons in the corridor and by Mr. Martineau." . . . Defense counsel made a deliberate tactical decision not to inform the court or to object because he felt it was to Martineau's advantage. Martineau agreed with this. Later Martineau was given the chance to object if he did not agree but failed to inform the court of the facts or of any objection but rather waited until after the guilty verdict. This constituted a deliberate and intelligent waiver.

Id. at 1041.

Petitioner next brought a petition for habeas corpus in the District Court of New Hampshire alleging that his sixth amendment right to a public trial had been violated. This was denied by the district court on the grounds "that petitioner had deliberately and intelligently waived his right to a public trial" and "that petitioner could make no claim of prejudice and to the contrary there is the strong suggestion that he benefited by the circumstances which surrounded his trial." We issued a certificate of probable cause and this appeal followed.

Before tackling the difficult question of waiver, we first clear away the underbrush of the "no prejudice" findings of the New Hampshire Superior Court and the district court. It is a settled rule of the federal courts "that a showing of prejudice is not necessary for a reversal of a conviction not had in public proceedings." Levine v. United States, 362 U.S. 610, 627 n.*, 80 S.Ct. 1038, 1048, 4 L.Ed.2d 989 (Brennan, J., dissenting) (1960). See also United States v. Eisner, 533 F.2d 987, 993 (6th Cir. 1976); United States ex rel. Bennett v. Rundle, 419 F.2d 599, 608 (3d Cir. 1969); United States v. Kobli, 172 F.2d 919, 921 (3d Cir. 1949); Tanksley v. United States, 145 F.2d 58 (9th Cir. 1944); Davis v. United States, 247 F. 394, 398 (8th Cir. 1917). The question of prejudice is, therefore, immaterial.

In assessing the factual findings of the state courts as to waiver, we are bound by the provisions of 28 U.S.C. § 2254(d), keeping in mind that what constitutes a valid waiver is not a question of historical fact, but one that requires the application of constitutional principles to the facts as found. Brewer v. Williams, 430 U.S. 387, 403-04, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 97 L.Ed. 469 (1953). There is nothing in the transcript or New Hampshire Supreme Court opinion that would negate the presumption of factual correctness mandated by 28 U.S.C. § 2254(d): the merits of the factual disputes were resolved in the state court hearing, 2254(d)(1); the fact finding procedure employed by the state court was adequate to afford a full and fair hearing, 2254(d)(2); the material facts were adequately developed at the state court hearing, 2254(d)(3); the state court had jurisdiction over the petitioner, 2254(d)(4); the petitioner was represented by counsel, 2254(d)(5); the petitioner received a full and fair hearing in the state court proceeding, 2254(d)(6), and was not otherwise deprived of due process of law, 2254(d)(7); and the factual determinations made by the state courts are fairly supported in the record, 2254(d)(8). ³

We are, of course, mindful of our duty to make our own independent determination of petitioner's federal claim, "without being bound by the determination on the merits of that claim reached in the state proceedings." Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2507, 53 L.Ed.2d 594 (1977); Brown v. Allen, supra, 344 U.S. at 443, 73 S.Ct. 397.

The salient facts to which we apply the requisite constitutional principles are essentially undisputed and can be stated as follows. Due to a misunderstanding by the court officer, the courtroom doors were locked for three days and part of a fourth of a six day trial. The court was not aware of the situation and when it found out about it, it ordered the doors unlocked and they remained open for the balance of the trial. Members of the public and friends of the petitioner could not enter the courtroom during the first three days of the trial. Law students were present during the entire trial in addition to counsel and the usual court officers. Petitioner's attorney found out about the locked doors sometime before the judge was informed of the situation. Although the record is not entirely clear as to just when in the trial this was, by using a 1976 calendar and the findings of the Superior Court as to the trial dates, we can approximate when Attorney Chiesa first found out that the courtroom doors were locked. He testified that he thought he learned about the locked doors on the fifth day of trial. He was more certain that it was in the second week of the trial. ⁴ It is, therefore, reasonable to deduce that Attorney Chiesa may have learned about the locked doors as late as March 15, which was the start of the second week of trial. This was also the day on which the judge was informed of the situation. The only other reasonable deduction is that the attorney counted the suppression hearing as part of the trial. The dates of the hearing were March 3 and 4 (Wednesday and Thursday) and March 8 (Monday of the following week). This alternative inference would put the date of discovery on March 10, which was the second day of the trial.

There is no doubt that petitioner's attorney deliberately decided not to object. He felt that a locked courtroom inured to the benefit of the petitioner because it would prevent the police from planting someone in the court to listen to the testimony and then relay it to the prosecution's sequestered witnesses. The attorney also felt that the closed courtroom reduced the possibility of adverse newspaper comment by the local newspaper, The Manchester Union Leader. This reasoning was explained to petitioner and counsel thought he agreed with him at that time. Sometime later, petitioner objected repeatedly and strenuously to the locked courtroom and asked his...