Salemme v. Ristaino, 78-1195

• Citation: 587 F.2d 81
• Decision Date: 22 November 1978
• Docket Number: No. 78-1195,78-1195
• Parties: Francis SALEMME, Petitioner-Appellant, v. Theodore RISTAINO, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 81

587 F.2d 81

Francis SALEMME, Petitioner-Appellant, v. Theodore RISTAINO, Respondent-Appellee.

No. 78-1195.

United States Court of Appeals,

First Circuit.

Argued Sept. 15, 1978.

Decided Nov. 22, 1978.

Michael C. Donahue, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Boston, Mass., were on brief, for respondent-appellee.

Before KUNZIG, Judge, U.S. Court of Claims, ^* CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Francis Salemme was convicted of assault with intent to murder and assault and battery by means of a dangerous weapon, in violation of Mass.Gen.Laws ch. 265 §§ 18 and 15A (1970). He was tried in Middlesex County Superior Court from June 11, 1973, through June 15, 1973. He received two sentences, to run consecutively, of 19-20 years and 9-10 years. The Massachusetts Appeals Court affirmed his convictions on March 4, 1975, Mass.App.Adv.Sh. (1975) 331, 323 N.E.2d 922, and on April 23, 1975, the Massachusetts Supreme Judicial Court denied further review. Salemme thereupon filed for a writ of error, which was denied by a single justice, later confirmed by the Supreme Judicial Court. Mass.Adv.Sh. (1976) 1466, 348 N.E.2d 799. Salemme then petitioned the federal district court for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 Et seq. Salemme appeals the denial of that writ to us.

The facts underlying Salemme's conviction derive from a shocking crime: John E. Fitzgerald, Jr., a Boston attorney representing Joseph Barboza Baron (Barboza), sustained severe and crippling injuries on January 30, 1968, when his car exploded upon his turning the ignition key. According to a self-confessed accomplice, Robert Daddieco, Salemme asked Daddieco for help in killing "Joe Barboza's lawyer." Barboza, during 1967 and early 1968, had testified against other reputed top Mafia figures. Daddieco testified that he accompanied Salemme to the scene of the crime while Salemme wired Fitzgerald's car and that he previously had observed Salemme practice wiring dynamite to a car of the same model and year as Fitzgerald's, presumably in preparation for the actual job. Salemme was indicted on two counts on October 10, 1969, and was finally apprehended in New York on December 14, 1972, where he denied his true identity.

Salemme claims that the district court erred in dismissing his petition for writ of habeas corpus. He asserts that certain errors at the trial level, plus an error by the Massachusetts Appeals Court, denied him due process and that he is, therefore, incarcerated in violation of his constitutional rights.

A. Petitioner argues that the Massachusetts Appeals Court articulated a novel standard of review for evidentiary rulings and applied the rule retroactively, to his detriment. He alleges that the Appeals Court ruled that evidence improperly admitted would escape appellate review in the event counsel failed to make a subsequent motion to strike the offending evidence.

At trial, Fitzgerald stated that Barboza had testified against several underworld figures, later specifically mentioning Patriarca, Angiulo and French, reputedly well-known leaders of the Mafia. Petitioner objected to the admission of the specific names and excepted to the court's ruling the evidence admissible. The prosecution's theory was that the attack on Fitzgerald was connected to his representation of Barboza. The Massachusetts Appeals Court ruled that the trial court did not abuse its discretion in admitting the specific names since the prosecution was entitled to present evidence in support of its theory for the bombing. The Appeals Court observed that simply because the persons named were figures of some notoriety and that this might reflect adversely on Salemme did not make the testimony inadmissible since it was admissible, pursuant to the prosecution's theory, to show motive. The Appeals Court noted further that there was nothing to suggest, at the juncture where the testimony was admitted, that the introduction of the names was not preliminary to testimony linking the named individuals to Salemme. Subsequently, no such link was established. The trial court thereupon ordered the prosecution not to mention again that Barboza had testified against Angiulo and Patriarca. Finally, the Appeals Court observed that the failure of such a link made the testimony "subject to a motion to strike with appropriate instructions. No such motion or request for instructions appears to have been made." It is this latter language from the Appeals Court decision upon which petitioner now attempts to hinge his plea of denial of due process.

Salemme contends that this language indicates that, absent a motion to strike, an appellate court will not review assertedly erroneously admitted material. Such a reading is strained and without basis. The Appeals Court Did rule on the question of whether the trial court erred in admitting the names of the putative underworld leaders: it found no abuse of discretion. The court's comment in reference to the absence of a motion to strike did not, as suggested by petitioner, erect a new barrier to appellate review. The remarks that petitioner could have moved to strike or request limiting instructions states nothing more than the obvious: evidence frequently is admitted preliminary to its being subsequently connected-up. Should it develop that material admitted under this rubric is never linked with the facts of the case, thus rendering it irrelevant, it becomes subject to a motion to strike. Evidence is, of necessity, admitted piece by piece in a trial; it is not always possible to ascertain which evidence will be ultimately relevant. The Massachusetts Appeals Court, viewing the trial court's ruling in retrospect, found that the admission of the named individuals was a legitimate step in the government's case against Salemme. When the Commonwealth later failed to establish any link between Salemme and the reputed Mafia leaders, the evidence which had been properly admitted, in anticipation of such a link, became subject to a motion to strike. Even though such a motion was not made, the trial court's action in ordering the prosecution not to mention the testimony again was an effective substitute. This sequence of events does not indicate that the trial court erred in admitting the testimony in the first place, nor that the appellate court posed a new barrier to review of the question. ¹

B. Salemme raises a second argument based on the admission into evidence of the testimony discussed in Part A, Supra, of this opinion. He argues that, by virtue of the naming of Patriarca, Angiulo and French, he was convicted on a guilt by association theory. Habeas relief is unavailable to persons solely on the basis of alleged errors in evidentiary rulings. Lisenba v. California, 314 U.S. 219, 228, 62 S.Ct. 280, 86 L.Ed. 166 (1941). As early noted by the Supreme Court, "(t)he writ of Habeas corpus . . . does not operate as a writ of error . . . ." Benson v. McMahon, 127 U.S. 457, 461, 8 S.Ct. 1240, 1242, 32 L.Ed. 234 (1888). We cannot find that the mention of the three names so infused the trial with inflammatory prejudice as to render a fair trial impossible. Lisenba v. California, supra, at 228, 62 S.Ct. 280. The trial court limited whatever prejudicial effect the testimony may have had by not permitting the prosecution to repeat the three names during closing argument. It was defense counsel himself who elicited, through a defense witness, the fact that Barboza had testified as a government witness in other cases. The most damaging evidence came from the self-admitted accomplice Daddieco who described in detail Salemme's preparation for the bombing and the actual wiring of Fitzgerald's car. Although Daddieco was subjected to thorough cross-examination, emerging as a tarnished witness himself, the jury had to believe his story in order to convict Salemme. The admission of the three names was, as noted by the district court, at most cumulative. It does not meet the constitutional threshold required for habeas relief. See Grieco v. Meachum, 533 F.2d 713, 716 (1st Cir.), Cert. denied sub nom. Cassesso v. Meachum, 429 U.S. 858, 97 S.Ct. 158, 50 L.Ed.2d 135 (1976).

C. Salemme claims that his conviction on the two count indictment subjected him to double jeopardy. His argument rests on the grounds that (1) a single transactional act gave rise to both crimes and that, (2) because of the jury charge, the trial court merged the two crimes of assault with intent to murder while armed with a dangerous weapon and assault and battery by means of a dangerous weapon into a single crime which should have rendered impermissible the imposition of two sentences.

We dispose of the second point quickly. This issue was not raised in any state proceeding and is, therefore, not properly before us in determining whether it might warrant habeas relief. Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). See also, 28 U.S.C. §§ 2254(b) and (c). The judicial authority of Massachusetts has never been given the opportunity by petitioner to rule on the merits of his contention. Principles of federalism and comity dictate that we not interject our views on this issue of state law at this stage. Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950) (overruled in other respects, Fay v. Noia,372 U.S. 391, 435-36, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)). Counsel's argument that essentially the same point was raised in Salemme's petition for writ of error to the Massachusetts Supreme Judicial Court, when defendant argued that two sentences were impermissible in the absence of a meaningful distinction between the two offenses, is without merit. Petitioner is required to present the same claim he urges in federal court to the state tribunal. Picard v. Connor, supra, at 276, 92 S.Ct. 509; Nelson v. Moore, 470 F.2d 1192, 1197 (1st Cir. 1...