Sands v. Cunningham, Civ. No. 85-216-D.

• Citation: 617 F. Supp. 1551
• Decision Date: 01 October 1985
• Docket Number: Civ. No. 85-216-D.
• Parties: David S. SANDS v. Michael J. CUNNINGHAM, Warden, New Hampshire State Prison.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire

617 F. Supp. 1551

David S. SANDS v. Michael J. CUNNINGHAM, Warden, New Hampshire State Prison.

Civ. No. 85-216-D.

United States District Court, D. New Hampshire.

October 1, 1985.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas R. Watson, Portsmouth, N.H., for plaintiff.

John A. Malmberg, Asst. Atty. Gen., Concord, N.H., for defendant.

OPINION

DEVINE, Chief Judge.

Petitioner brings this application for writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that his December 13, 1978, conviction for two counts of perjury (N.H. RSA 641:1), the sentence imposed following the conviction, the sentence review by the state's Sentence Review Division, and the state appellate process were constitutionally infirm. Petitioner has raised seventeen grounds for relief.

Procedural History

Petitioner was indicted in 1977 for perjury arising out of his involvement in a civil proceeding concerning real estate in Carroll County. Plaintiff perjured himself by falsely identifying an individual responsible for signing a petition for ex parte attachment in this underlying civil matter. A detailed factual background of this case is contained in the New Hampshire Supreme Court opinion affirming petitioner's conviction, State v. Sands, 123 N.H. 570, 582-88, 467 A.2d 202 (1983), and will not be repeated here.

Convicted in 1978, petitioner timely appealed to the New Hampshire Supreme Court, raising Grounds One through Five and Eight through Fourteen now contained in the petition for habeas relief. The New Hampshire Supreme Court affirmed the conviction. State v. Sands, supra. Petitioner also appealed his sentence to the Superior Court Sentence Review Division, which affirmed the sentence. Petitioner then filed a petition for writ of certiorari with the New Hampshire Supreme Court seeking review of the Sentence Review Division's decision and raising Grounds Six and Seven now contained in the petition for habeas relief. The New Hampshire Supreme Court summarily affirmed the decision of the Sentence Review decision by denying the petition without opinion in October 1984. Petitioner also made several post-conviction motions raising Grounds Fifteen, Sixteen, and Seventeen now contained in the petition for habeas relief. These motions were denied by the trial court, and petitioner appealed to the New Hampshire Supreme Court, which summarily affirmed that decision in January 1985. Petitioner filed his petition for writ of habeas corpus with this Court on April 1, 1985, and respondent, pursuant to the Court's Order of May 8, 1985, has filed a response to show cause why the writ should not be granted. For the following reasons, the Court finds and rules that the petition for writ of habeas corpus must be denied.

Analysis

Ground One: Petitioner herein claims that his Sixth and Seventh Amendment rights were violated when the trial court withdrew "materiality", an essential element of perjury under RSA 641, from jury consideration. The Court does not agree.

While it is established that the State must prove every element of an offense beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), it is also established that courts, rather than juries, should decide questions of law. See State v. Sands, supra, 123 N.H. at 592, 467 A.2d 202. In the instant case, the New Hampshire Legislature in drafting RSA 641 specifically reserved determination of "materiality" for the trial court. See RSA 641:1. This reservation is consistent with the rulings of the United States Supreme Court and the First Circuit Court of Appeals. See Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 273, 73 L.Ed. 692 (1929) ("materiality of what is falsely sworn, when an element in the crime of perjury, is one for the court"); United States v. Scivola, 766 F.2d 37, 44 (1st Cir.1985) ("materiality is a legal question to be decided by the trial court") citing, United States v. Kehoe, 562 F.2d 65, 68 (1st Cir.1977), and United States v. Romanow, 509 F.2d 26, 28 (1st Cir.1975). The Court, accordingly, bound by established precedent, finds and rules that the state trial court's determination of "materiality" under RSA 641 did not violate petitioner's Sixth and Seventh Amendment rights since determination thereof was a legal question properly reserved to the trial court.

Ground Two: Petitioner herein expands his claim under Ground One to claim that this Fifth, Eighth, and Fourteenth Amendment rights were violated when the trial court declined to instruct the jury on a lesser included offense, false swearing. For the following reasons, the Court does not agree.

A defendant is entitled to a lesser included offense instruction in certain circumstances. According to the United States Supreme Court in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), a lesser included offense instruction is required by due process when warranted by the evidence. The Supreme Court further outlined federal constitutional standards for lesser included offense instructions in Hopper v. Evans, 456 U.S. 605, 612, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 (1982): "The federal rule is that a lesser included offense instruction should be given `if the evidence would permit a jury rationally to find a defendant guilty of the lesser offense and acquit him of the greater.' Keeble v. United States, 412 U.S. 205, 208 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973)." Accordingly, where the evidence presented to the jury would not permit a finding of guilty on the lesser offense, the failure to instruct thereon is not a constitutional infirmity.

In the instant case, the only difference under RSA 641 between felonious perjury and the misdemeanor of false swearing is the element of materiality required for perjury. The trial court made the determination that petitioner/defendant's statements were material. The fact that the jury did not make this determination, as discussed above, does not raise a constitutional issue. The Court accordingly concludes that since materiality had already been determined, the evidence presented to the jury would not permit a finding of guilty on the lesser included offense of false swearing; hence a failure to instruct thereon did not violate petitioner's rights under the Fifth, Eighth, and Fourteenth Amendments.

Ground Three: Petitioner herein claims that his Fifth and Fourteenth Amendment rights were violated when the trial court allowed evidence on the element of materiality to be admitted in the presence of the jury.¹ According to petitioner, this evidence was irrelevant, immaterial, confusing, and prejudicial, and its admission denied him a fair trial. For the following reasons, the Court does not agree.

In reviewing a state court conviction on petition for habeas corpus, the Court is limited to searching for constitutional error. 28 U.S.C. § 2254(a); Grieco v. Meachum, 533 F.2d 713, 716 (1st Cir.1976), cert. denied sub nom., Cassesso v. Meachum, 429 U.S. 858, 97 S.Ct. 158, 50 L.Ed.2d 135 (1976).

In the instant case, the Court cannot find constitutional error in the admission of evidence pertaining to the materiality of petitioner's statements. The elements of materiality, falsity, and mental state under RSA 641 were intertwined in this case, and the evidence pertaining to materiality was also relevant to whether petitioner believed that his statement was false. The trial court therefore properly admitted the challenged evidence, and the Court finds no constitutional error. See United States v. Demopoulos, 506 F.2d 1171, 1177 (7th Cir.1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 673 (1975).

Ground Four: Petitioner herein claims that his Fifth and Fourteenth Amendment rights were violated when the prosecutor in closing argument charged for the first time that petitioner was involved in tax fraud. According to petitioner, these remarks were improper and prejudicial, denying him the right to a fair trial and due process. The Court does not agree.

In the instant case, petitioner was convicted of perjury for falsely identifying an individual, "William Smith", as the person responsible for signing a petition for ex parte attachment. William Smith was the trustee of the Forest Preservation Trust, a trust that was involved in certain real estate transactions in Carroll County in the mid 1970's. In its closing argument, the State remarked that this trust was a tax fraud which petitioner attempted to conceal by his perjury. According to petitioner: the tax fraud remarks accused him of a crime for which he was not indicted and for which there was no supporting evidence; the remarks contravened prior exclusionary rulings of the trial court; and the remarks constituted prosecutorial misconduct because the State knew or should have known that the remarks were untrue. After review of the record, the Court concludes that the State's remarks did not constitute an error of constitutional magnitude.

First, evidence introduced at trial could support an inference that petitioner had created the Forest Preservation Trust for the purpose of committing tax fraud. Specifically, Linda Clough, petitioner's secretary, testified that petitioner himself had signed the ex parte attachment as "William Smith", although petitioner insisted codefendant Thomas Tsoumas signed the subject document; the State's handwriting experts testified that Tsoumas's handwriting did not match that of the fictitious William Smith; and income from the Forest Trust for the years 1974-1976 was not reported to the IRS until April 1977, when Tsoumas² filed fiduciary returns. Moreover, the Court concludes that the prosecution's remarks concerning tax fraud were not meant to charge petitioner with a separate crime, but rather were meant to establish a reason or motive for petitioner's perjury.

Second, the trial court issued an order prior to closing argument limiting the scope of the State's summation. The trial court barred any...