Painten v. Commonwealth of Massachusetts

• Decision Date: 31 March 1966
• Docket Number: Misc. Civ. No. 64-78.
• Parties: Donald M. PAINTEN, Petitioner, v. COMMONWEALTH OF MASSACHUSETTS, Respondent.
• Court: U.S. District Court — District of Massachusetts

252 F. Supp. 851

Donald M. PAINTEN, Petitioner, v. COMMONWEALTH OF MASSACHUSETTS, Respondent.

Misc. Civ. No. 64-78.

United States District Court D. Massachusetts.

March 31, 1966.

Louis M. Nordlinger, Boston, Mass., for plaintiff.

Willie J. Davis, Asst. Atty. Gen., Boston, Mass., for defendant.

CAFFREY, District Judge.

Petitioner Donald M. Painten was tried by a jury in the Superior Court of the Commonwealth of Massachusetts and convicted of conspiracy to steal property, the theft of one automobile, and armed robbery, masked and disguised, of the Peoples National Bank, Marlboro, Massachusetts. He was sentenced to twenty years in the Massachusetts Correctional Institution at Concord on the bank robbery conviction, ten years for the automobile theft, to be served concurrently with the twenty year sentence, and two years on the conspiracy conviction, the two years to take effect from and after the expiration of the other sentences. He is now serving these sentences.

Painten's conviction was affirmed by the Supreme Judicial Court of Massachusetts in an opinion reported at 342 Mass. 740, 175 N.E.2d 473 (1961). Thereafter he filed a petition for a writ of error in the Supreme Judicial Court. The petition was denied after a preliminary hearing. Petitioner subsequently filed the instant writ of habeas corpus in this court.

Petitioner alleges eight separate assignments of error which he feels establish that his imprisonment is illegal and in violation of the Fourteenth Amendment. It appears that all of these contentions have been raised before the state court either on appeal or in petitioner's writ of error.

By agreement of counsel the case was initially submitted to this Court for decision on the basis of a portion of the record from the Middlesex Superior Court. Thereafter, sua sponte, the Court ordered the parties to file a complete state court record. Still later, after a review of an 1161-page transcript of the trial held in Middlesex Superior Court, this Court sua sponte ordered an evidentiary-type hearing with reference to two of Painten's contentions, (1) that he had been prejudiced by the admission at the trial of articles seized by the police in the course of an illegal search of his apartment, and (2) that he had been denied equal protection of the law on the basis of his confinement in a prisoner's cage in the Superior Court courtroom. This opinion will first consider those of Painten's contentions which are resolvable on the basis of the state court record and will conclude with consideration of the two contentions as to which evidence was offered in this court.

Painten's first assignment of error is that the trial judge erred in failing to grant his motion for bills of particulars. The Supreme Judicial Court thoroughly considered this point and held that the indictments were in the language of the statute and that they were sufficient, fully, plainly, substantially, and formally, to set out the charges against him. There was no denial of federal rights in this ruling.

Painten also contends that the amendment in the middle of the trial of the indictment charging him with larceny of an automobile denied him his right to know before trial the essential components of the charge against him. The amendment merely changed the name of the automobile owner to Elora G. Trump from that of her husband John G. Trump. This point was also fully considered by the Supreme Judicial Court, which held that the amendment did not prejudice the defendant. There was no denial of federal rights in this ruling.

The next assignment of error is that the trial judge erred in permitting the Commonwealth to defer sentencing of a co-defendant who had changed his plea from not guilty to guilty on some counts of the indictment in the midst of the trial, and by further permitting the Commonwealth to call the said co-defendant as a state's witness immediately after the change of plea and much before the imposition of sentence, thereby prejudicially affecting the testimony of this witness by holding over his head the threat or reward of a sentence based on his degree of cooperation. There are numerous state and federal decisions holding that a co-defendant who has pleaded guilty is a competent witness even though he has not been sentenced. See II Wigmore, Evidence, sec. 580 (3rd ed. 1940). There was no denial of a federal right in allowing the co-defendant to testify.

Painten's next assignment of error is that "The Commonwealth of Massachusetts erred by removing one of the co-defendants from the local jail for the purposes of private interrogation conducted by the Commonwealth's prosecuting attorney after the time indictments had been presented by the grand jury." It is difficult to understand how this action could have infringed Painten's constitutional rights. The co-defendant who was removed from the jail pleaded guilty to the charge during the trial and turned state's evidence. Painten does not allege that the interrogation of the co-defendant was carried out in such a way that the co-defendant's constitutional rights were violated. He does not allege that the co-defendant was coerced or threatened in any manner during his interrogation. In fact, Painten alleges no facts whatsoever which could possibly give rise to any violation of his constitutional rights. He is not entitled to relief on this ground of his petition.

Petitioner's next assignment of error is that during the trial the questioning of one witness elicited testimony that Painten had been in prison. It also appears that during the instruction to the jury the judge referred to the fact that Painten had been an inmate of the Massachusetts Correctional Institution. Petitioner argues that since Massachusetts law provides that a defendant's prior criminal record shall not be disclosed to the jury when the defendant does not testify, and since Painten did not take the stand at his trial, the admission of this testimony relating to his prior imprisonment was a denial of equal protection of the laws.

The transcript of the trial reveals that while Painten's counsel was cross-examining Bratkon, the co-defendant who had pleaded guilty, the following occurred:

Q. Prior to that, when had you last seen him?

A. Like I said, prior to that I seen him in jail.

Q. I asked you when?

A. Around '54. I imagine it was then.

A few moments later the following colloquy took place between the trial judge and the witness:

The Court: When did you last see him before January '58?

Witness: In jail, Your Honor.

The Court: What?

Witness: In jail.

The Court: When was that?

Witness: '54-'55—around there. I don't know exactly the time.

Counsel for Painten made no motion to strike this testimony at any point in the trial; nor did he ever request the trial judge to instruct the jury to disregard the testimony. See Commonwealth v. Early, Mass., 212 N.E.2d 457 (1965). Under these circumstances, it cannot be said that petitioner was denied equal protection of the laws.

Petitioner next contends that "the trial justice prejudiced petitioner's right to a fair trial by misleading the jury during his instructions to that body at the conclusion of the trial." Specifically, petitioner relies on (1) the trial judge's statement, "I think you will have (with you) Mr. Painten's record. I believe the records were introduced in evidence that he was twice convicted of rape * * *"; and (2) what the petitioner characterizes as a completely erroneous recollection of a witness' answer by the trial judge in his instruction.

The transcript of the trial reveals that at the conclusion of the charge the erroneous reference to Painten as the man who had been convicted of rape was called to the judge's attention during a conference at the bench. The trial judge then instructed the jury that the records referred to were Bratkon's conviction of the rape of two persons and were offered to impeach his credibility. This corrective charge removed any prejudice which may have resulted to Painten from the jury charge.

As to the contention that the judge stated an erroneous recollection of a witness' testimony in his charge to the jury, it should be noted that the judge had charged the jury that it was their recollection of the evidence that should govern their deliberations, not that of the judge. Furthermore, there was no objection to the portion of the charge which petitioner now claims was erroneous.

This was a long trial, involving four defendants and a number of charges. The trial lasted twelve days. The judge can hardly be expected to have remembered every detail of the evidence. Upon a fair reading of the entire charge it cannot be said that the trial judge so misled the jury as to deprive petitioner of due process of law.

Petitioner's next assignment of error is that articles which had been seized during an illegal search of his apartment were admitted into evidence against him. Before resolving Painten's contentions with regard to illegal search and seizure, the contention of the Commonwealth that Painten is not in a position to obtain the benefits of the doctrine of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) must be considered. The Supreme Court held in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) that the exclusionary rule of Mapp did not apply retroactively to convictions which had become final by the date of its decision in Mapp (June 19, 1961). The record proves that Painten's conviction was affirmed by the Supreme Judicial Court of the Commonwealth of Massachusetts on June 9, 1961. Since the time within which Painten could petition for a writ of certiorari had not expired when Mapp was handed down, his conviction was not final as that term is defined in Linkletter v. Walker, supra, at 622, n. 5, 85 S.Ct. at 1734, and, therefore, evidence obtained through an illegal search and seizure was not admissible in Painten's trial in state court, even though the...