Puleio v. Vose, 87-1135

• Decision Date: 29 July 1987
• Docket Number: No. 87-1135,87-1135
• Parties: 23 Fed. R. Evid. Serv. 1306 Joseph A. PULEIO, Plaintiff, Appellant, v. George A. VOSE, Jr., etc., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1197

830 F.2d 1197

23 Fed. R. Evid. Serv. 1306

Joseph A. PULEIO, Plaintiff, Appellant, v. George A. VOSE, Jr., etc., Defendant, Appellee.

No. 87-1135.

United States Court of Appeals First Circuit.

Heard July 29, 1987.

Decided Oct. 9, 1987.

Thomas E. Kanwit, Boston, Mass., by Appointment of the Court, with whom James E. Carroll, Gaston Snow and Ely Bartlett, Boston, Mass., were on brief, for plaintiff, appellant.

Paula J. DeGiacomo, Asst. Atty. Gen., Acting Chief, Crim. Appellate Div., with whom James M. Shannon, Atty. Gen., and A. John Pappalardo, Chief, Crim. Bureau, Boston, Mass., were on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Appellant, Joseph A. Puleio, was convicted of first degree murder in a Massachusetts state court in March 1981. The judgment was affirmed by the Massachusetts Supreme Judicial Court (SJC). See Commonwealth v. Puleio, 394 Mass. 101, 474 N.E.2d 1078 (1985) (Puleio I ). The appellant thereafter filed for habeas corpus in the United States District Court for the District of Massachusetts, alleging that his state conviction was thrice tainted by error of constitutional dimension: (1) the lack of a correct definition of "malice aforethought" in the jury instructions worked a denial of substantive due process; (2) the court so restricted the cross-examination of a prosecution witness that the protection of the confrontation clause, U.S. Const.Amend. VI, was stripped away; and (3) the improper admission of hearsay testimony likewise impeded the constitutional right to confrontation. The district court, adopting the report and recommendation of a United States magistrate, dismissed the habeas application on the merits, but granted a certificate of probable cause. This appeal followed.

The same triumvirate of points which were rebutted by the district court are presented for our scrutiny. We will deal with them separately. We will not, however, narrate the facts of the incident in any expository fashion. The evidentiary predicate for Puleio's murder conviction was well summarized by the SJC, see id. at 102, 474 N.E.2d 1078, and there would be little advantage in attempting federally to reinvent that particular wheel. Nonetheless, we will refer from time to time to particular facts developed during the trial as our consideration of the issues reasonably requires.

I. THE CHARGE.

Puleio maintained before the SJC and in the district court that the charge to the jury failed to afford a proper definition of "malice aforethought", thereby abridging his fourteenth amendment right to due process of law. The Commonwealth's threshold response has been--and still is--that no contemporaneous objection was interposed at trial to the challenged segment of the jury instructions. Inasmuch as state law plainly requires such an objection, see Commonwealth v. Fluker, 377 Mass. 123, 131, 385 N.E.2d 256 (1979), the appellee argues that petitioner is barred from raising the supposed defect in a federal habeas proceeding. See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977). The district court agreed, and so do we.

Under the now familiar Wainwright doctrine, a defendant's failure to object at his original state trial may constitute an "independent and adequate state procedural ground" sufficient to foreclose collateral federal review of claimed constitutional error, id. at 87, 97 S.Ct. at 2506, so long as the state has a contemporaneous objection rule and has not waived its enforcement. McCown v. Callahan, 726 F.2d 1, 3 (1st Cir.), cert. denied, 469 U.S. 839, 105 S.Ct. 139, 83 L.Ed.2d 78 (1984). To escape from the preclusory effect of such a procedural default, the defendant is obliged to show both "cause" for, and "prejudice" from, his noncompliance with the rule. Id.

In the case at bar, Puleio concedes that Massachusetts employs a contemporaneous objection rule and that his trial counsel did not register a timely protest to the malice instruction. Notwithstanding, appellant contends that the Commonwealth waived enforcement of the rule, and that, in any event, he has shown sufficient cause and prejudice to clear the Wainwright hurdle. Having scoured the record with meticulous care, we find that these contentions wither and die in the bright glare of controlling precedent.

A. Waiver. Petitioner's waiver argument reduces to the forlorn claim that the SJC jettisoned the procedural default (as a prospective bar to federal habeas review) when it considered and passed upon the merits of Puleio's assignment of instructional error. To be sure, the SJC did examine the substance of this asseveration, concluding that although the malice instruction was erroneous, "it was harmless to the defendant beyond a reasonable doubt." Puleio I, 394 Mass. at 107, 474 N.E.2d 1078. But, it is not enough for Puleio's present purpose that some oblique consideration was given to the merits of his claim. Not every passing reference to substance dispels the onus of noncompliance with a contemporaneous objection rule. Waiver in such circumstances must entail the state court reaching the gist of the federal constitution question. The test "is the extent to which the state court relies upon federal rights, cases and legal principles in conducting its review.... The greater the reliance on federal doctrine, the more likely we are to find waiver." Jackson v. Amaral, 729 F.2d 41, 45 (1st Cir.1984). Such reliance is notably absent in this instance.

Massachusetts law provides that the SJC may reach the merits of an appeal, notwithstanding procedural default, to determine whether a miscarriage of justice likely occurred. See M.G.L. ch. 278, Sec. 33E (special standard of review in capital cases); Commonwealth v. Tavares, 385 Mass. 140, 148, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982); Commonwealth v. Perry, 385 Mass. 639, 647, 433 N.E.2d 446 (1982); Commonwealth v. Roberts, 378 Mass. 116, 123, 389 N.E.2d 989 (1979). It is altogether evident that the SJC's consideration of the alleged instructional error in Puleio's case "went not to the federal question of ... constitutional sufficiency, but to the state law question of whether a 'substantial risk of a miscarriage of justice' was present." Gibson v. Butterworth, 693 F.2d 16, 17 (1st Cir.1982) (emphasis in original). The SJC itself was careful to point out that the neglect seasonably to press an objection to this aspect of the charge prevented analysis of petitioner's claim under any but the state law miscarriage of justice standard:

[A]s the colloquy between the judge and counsel following the main part of the charge shows, the defendant ... did not object to the instructions on malice. Rather, defense counsel joined the prosecutor in focusing on deliberate premeditation. Because defense counsel did not suggest to the judge any dissatisfaction with the judge's further jury instructions, to obtain a reversal of the conviction on the ground that the jury charge was inadequate, the defendant must demonstrate that the error created a substantial likelihood of a miscarriage of justice. G.L. c. 278, Sec. 33E.

Puleio I, 394 Mass. at 109, 474 N.E.2d 1078. Against this backdrop, it is disingenuous to argue that the SJC's "harmless ... beyond a reasonable doubt" finding was intended to incorporate the federal harmless error standard, see Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963); United States v. Argentine, 814 F.2d 783, 789 (1st Cir.1987), into its review. We have repeatedly held, and today reaffirm, that SJC review under the discretionary state miscarriage of justice standard will not suffice, in and of itself, to bypass the Commonwealth's contemporaneous objection rule. See McCown, 726 F.2d at 3; Gibson, 693 F.2d at 17. A clearer showing of waiver is manifestly necessary.

There is a second reason, too, why the white flag of waiver will not fly from these ramparts. It is crystal clear that the SJC rested its "miscarriage" decision exclusively on state law anent the malice aforethought point. Here as in McCown, 726 F.2d at 4, there was "no indication that the court researched, examined in depth, or intended to rely upon, federal law in the area." Indeed, the SJC's discussion of the malice instruction contained not a single reference to any federal case or statute. See Puleio I, 394 Mass. at 105-09, 474 N.E.2d 1078. ¹ Accordingly, we are constrained to conclude that the SJC's ascertainment of the benignity of the error "should be read to mean only that, as a matter of state law, the case did not pose a substantial risk of a miscarriage of justice." Gibson, 693 F.2d at 18 (emphasis in original).

Before leaving the question of waiver, we must address yet another shot from the petitioner's sling: Puleio's exhortation that the federal district court waived the procedural default by reaching the merits of his constitutional claim. Novel though this bombardment may be, it is easily deflected. As we have already noted, the district court--far from pardoning Puleio's procedural default--expressly relied on it as a primary basis for dismissing the habeas application. More importantly, principles of federalism and comity augur that only a state tribunal may waive such a procedural default so as to permit substantive collateral review in federal habeas jurisdiction. After all, the very purpose of the Wainwright limitation is "to accord appropriate respect to the sovereignty of the States in our federal system.... [If the state courts do not] indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the state by entertaining the claim." Ulster County Court v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979). If federal courts were...