Morgan v. Hall

• Decision Date: 26 January 1978
• Docket Number: No. 77-1414,77-1414
• Citation: 569 F.2d 1161
• Parties: Morris MORGAN, Petitioner, Appellant, v. Frank A. HALL, etc., et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1161

569 F.2d 1161

Morris MORGAN, Petitioner, Appellant, v. Frank A. HALL, etc., et al., Respondents, Appellees.

No. 77-1414.

United States Court of Appeals, First Circuit.

Argued Dec. 5, 1977.

Decided Jan. 26, 1978.

Robert S. Potters, Boston, Mass., for petitioner, appellant.

Robert V. Greco, Asst. Atty. Gen., Criminal Div., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief Criminal Bureau, Boston, Mass., were on brief, for respondents, appellees.

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

LEVIN H. CAMPBELL, Circuit Judge.

This appeal is from the district court's denial of Morgan's habeas corpus petition. When petitioner took the stand at his state criminal trial, the prosecutor asked questions which focused upon his silence after arrest. As these were constitutionally improper, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), we must decide if the prosecutor's error was harmless beyond a reasonable doubt.

Morris Morgan, a 32 year old black, was accused of abducting and raping Barbara Palkey, a 26 year old white, in the early morning hours of March 24, 1974. Indicted in Massachusetts for assault and battery, commission of a lewd and lascivious act, rape, sodomy and kidnapping, he was tried before a Superior Court jury in September, 1974. The jury found him not guilty of kidnapping and sodomy but guilty on the other counts and he was sentenced to 12 to 15 years in state prison. Upon appeal, the Massachusetts Supreme Judicial Court took direct jurisdiction on its own motion and affirmed the conviction in December, 1975. Commonwealth v. Morgan, Mass.Adv.Sh. (1975) 3635, 339 N.E.2d 723, cert. denied, 427 U.S. 905, 96 S.Ct. 3190, 49 L.Ed.2d 1198 (1976). Morgan filed this petition in the district court in August, 1976. The district court declined to issue the writ but issued a certificate of probable cause to permit an appeal.

According to the testimony of the alleged victim, Miss Palkey, she went with a friend on the evening of March 23, 1974 to a large nightclub in the Fenway Park area of Boston. She arrived at the club about 10 p. m. and after an hour decided to leave. She discovered she had lost the check for her coat, and the club refused to return it until all other coats had been picked up. She resigned herself to staying until the 2 a. m. closing time, but her girlfriend ran into a male friend and departed around midnight. During her stay at the club, Palkey drank one coke; she sat at a table with her friend until she left and then stood against the wall, not talking to anyone except to decline offers to dance. At 2 she retrieved her coat and began walking the several blocks to where her car was parked. Outside the club many young people, perhaps as many as a hundred, were milling around. At that point Morgan came up to her and asked if he could walk with her. She indicated it wouldn't be necessary, but he stayed with her. They turned from the still populated main street to a side street where she had parked. Her car was hemmed in by other cars, and they were alone on the street. Morgan asked for a ride home; intimidated by the situation, she agreed. Apparently she was able to get into her car and lock all the doors, but then unlocked the passenger side to let him in.

She drove through Kenmore Square and down Commonwealth Avenue. Until they reached Exeter Street, Morgan behaved in a mild and friendly manner, but when they turned onto Exeter, he grabbed her by the neck, dug his nails in, and told her to pull over or he would kill her. She offered him her purse, but he said he was going to rape her. They drove around looking for a parking space, passed a disabled motorist in the middle of the street, and eventually settled on a space by a fire plug. He released her neck but kept hold of her arm as they walked to his apartment; he told her he was just out of Walpole and wouldn't hesitate to kill her if she tried to seek help. They passed many people on the street, mostly students leaving parties in the neighborhood.

Palkey went into Morgan's apartment, undressed at his command and submitted to a variety of sexual acts. According to her testimony, in the course of the next three hours Morgan raped her three times, sodomized her twice, forced her to perform oral sex on him twice, and performed oral sex on her once. According to Palkey, Morgan again asserted he recently had been released from Walpole as the result of a legal technicality. By the end of the evening, she was sitting on the edge of the bed crying. Morgan asked her if she was ready for a beating, tapped her lightly on the chin, and then struck her on the jaw. When she arose, her mouth was bleeding and her teeth were awry; her jaw had been broken. Morgan looked stunned and got her a towel to stem the bleeding. He said he would have to take her to a hospital and asked her what she would say; she suggested she would fabricate a story about falling down the stairs. They walked to her car, and she got in. Morgan, standing in the street by her side of the car, said something she could not make out. She answered softly, and when he leaned over to hear her, she pulled out a can of mace from her purse and sprayed him full in the face. She then drove away, stopping at Kenmore Square to call a neighbor who lived across the street from her parents, where she resided at the time. He told her to go to St. Elizabeth's hospital, where he met her after informing her parents of her plight.

Medical examination revealed a fracture of the jaw in three places and the presence of semen in Palkey's vagina. The gynecologist who examined her could not find any evidence of anal intercourse, and neither she nor the oral surgeon who examined Palkey found any evidence of trauma on Palkey's neck. The oral surgeon testified that the jaw injury was consistent with a blow from a blunt object, such as a fist, but was inconsistent with a fall onto a flat surface, such as a floor, or a blow from a sharp object, such as the edge of a table. The surgeon had treated many injuries caused by fists during his military service. The gynecologist took a sexual history, which indicated that Palkey had been sexually active for eight years, had used an I.U.D. coil for 10 months, and had had sexual intercourse four days previous to her contact with Morgan. Her account of the assault at that time conformed to her later testimony at trial.

A Boston police officer, Detective Rufo, testified that on Monday, the twenty-fifth, he interviewed a young woman in Morgan's apartment. The young woman, who identified herself as a friend of the defendant's, told the detective she had spent Friday and Sunday nights in Morgan's apartment but had not seen him between Saturday afternoon and Sunday evening. Rufo then took 15 pictures to the hospital, from which Palkey identified Morgan's. Rufo went to Morgan's place of employment, gave him Miranda warnings, and arrested him. During cross-examination of Rufo by Morgan's attorney, the following exchange occurred:

XQ. You advised him of his rights?

A. Yes.

XQ. One of his rights was that he had a right to be silent?

A. Yes.

XQ. And he exercised that right?

A. Yes.

XQ. Nothing wrong with that, is there?

Mr. O'Neil: I object.

A. No.

The Court: I'll let it stand.

The detective did not observe any facial injury on Morgan that might have been caused by mace.

Morgan took the stand in his own defense and told a dramatically different story. He claimed to have met Palkey in the nightclub, danced with her once, and then received a proposition of sex for money. He left the offer pass at that time; later in the evening, she encountered him again and they began negotiating a price. After agreeing that she would receive $15, they left together and she drove him to his apartment. They had sexual relations, and Morgan then fell asleep. He denied having sodomized her. He woke up to see Palkey slipping out his door with his television set. He sprang up, grabbed her by the arm and flung her back into his apartment. She tripped over some furniture and her head struck his coffee table. He went over to his bureau, discovered that all his money had been stolen, and demanded its return. He noticed Palkey was injured and helped her try to stop the bleeding. She decided to go to the hospital on her own, and Morgan offered to pay her expenses.

On cross-examination the prosecution attempted to impeach Morgan's credibility. After running through Morgan's version of Palkey's conduct, the prosecution initiated this line of questioning:

XQ. Did you when this was over, did you report this to the police?

A. No.

XQ. Did you make any attempt to communicate this information to the police?

A. No.

XQ. Did you tell Detective Rufo when he came for you?

A. No.

XQ. Did you mention anything about that to him?

A. No.

Mr. Banks: I object.

The Court: Sustained.

XQ. Did you mention to anyone, to any one of the police that you happened to see

Mr. Banks: I object. May I approach the bench.

The Court: Yes.

At the Bench:

Mr. Banks: Your Honor, May it please the Court, I am going to move for a mistrial he has three times entered that area after objection.

The Court: What do you say?

Mr. O'Neil: Your Honor, I merely asked that since he is claiming the woman was a prostitute and committing a crime, did he report that to the police.

The Court: I will sustain the objection.

Mr. Banks: Exception.

The Court: I would keep away from that, because it's a very fine line. He was under no obligation to say anything.

Mr. O'Neil: I know that.

In Open Court:

The Court: I should tell the jury that when the defendant was arrested, one of the rights that he has is the right to remain silent.

He is under no obligation to speak to the police.

And, therefore, the question: Did you tell the police this or that that is really not proper. And I will ask you to exclude it from your mind.

He was under no duty to tell the...