Stepney v. Lopes, Civ. No. H-84-306 (PCD).
Decision Date | 28 August 1984 |
Docket Number | Civ. No. H-84-306 (PCD). |
Citation | 592 F. Supp. 1538 |
Parties | William H. STEPNEY, Jr. v. Raymond LOPES, Commissioner of Corrections, and Joseph I. Lieberman, Attorney General. |
Court | U.S. District Court — District of Connecticut |
James A. Wade, Sally S. King, Robinson, Robinson & Cole, Hartford, Conn., for plaintiff.
Carl Schuman, Anne Dranginis, Wallingford, Conn., for defendants.
Petitioner seeks a writ of habeas corpus, 28 U.S.C. § 2254. Jurisdiction is founded on 28 U.S.C. § 2241. Petitioner was charged with murder, Conn.Gen.Stat. § 53a-54a, and was convicted after a jury trial. The factual detail is found in the decision on his appeal which was denied by the Connecticut Supreme Court. State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1455, 79 L.Ed.2d 772, reh'g denied, ___ U.S. ___, 104 S.Ct. 2163, 80 L.Ed.2d 547 (1984). He is serving twenty-two years to life, this court having denied a stay of execution pending this petition. Stepney v. Lopes, 597 F.Supp. 11 (D.Conn. 1984).
As in his petition for certiorari to the United States Supreme Court, petitioner claims:
Two Connecticut State Police Officers testified to their interview of petitioner.1 The first, James Cavanaugh, was asked to describe his conversation with petitioner. Petitioner objected on the ground that any statements attributed to him constituted hearsay, since such were not inconsistent with any position petitioner had taken at trial. Counsel conceded that, if Mr. Stepney testified at odds with what Cavanaugh and Daloisio would attribute to him, their version of the conversation would be admissible as prior inconsistent statements. (Tr. 1236). Counsel stated:
I'm dealing here with a pure evidentiary question and the rules of court and not any constitutional claim.
(Tr. 1237). This objection was argued by the state and overruled by the court as an evidentiary matter. Petitioner's attorney reserved the right to specific objection. (Tr. 1245).
Cavanaugh recited the conversation (Tr. 1246-50) until he was asked and replied:
(Tr. 1250-51).
Petitioner claims here that his wish to stop talking and to see a lawyer were exercises of his fifth and sixth amendment rights. He claims that the admission into evidence of his exercise of those rights violated his fifth amendment right because when the evidence was admitted he became obliged to explain his conduct, and was thus forced to testify notwithstanding his fifth amendment right not to do so.
This claim was not raised at trial. On appeal, in compliance with the Connecticut Supreme Court rules,2 petitioner noted the error he claimed as to the testimony of Cavanaugh and Daloisio:
Whether the trial court erred in failing to sustain defendant's objections to the testimony of two Connecticut State Police Officers as to statements made by the defendant which defendant claimed were inadmissible hearsay.
Brief of Appellant to Connecticut Supreme Court, p. 2. Petitioner's argument of this point, Brief of Appellant, pp. 49-57, deals almost exclusively with the hearsay nature of the evidence and the Connecticut rule in State v. Villafane, 171 Conn. 644, 673-74, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977), overruled, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983). The only references to a constitutional claim, asserted on appeal for the first time, were:
... in questioning Troopers Cavanaugh and Daloisio as to the statements made by Mr. Stepney on the night of May 9, 1979, none of which were written or signed, the state in essence interfered with the defendant's constitutionally protected right to remain silent. Once those statements were introduced, the defendant was more or less forced to take the stand to further explain them.
In allowing the troopers to testify about the interview at the barracks and especially about its termination, the court enabled the jury to hear the above quoted answer which without more or an explanation by the defendant was particularly damning and infringed on the defendant's right to remain silent.
To allow that testimony when the court did was in error as a matter of law and highly prejudicial to the defendant's right to remain silent.
Brief of Appellant, p. 57. Petitioner argued that in admitting the testimony "the trial court interfered with defendant's right to remain silent." Reply Brief, p. 14 (emphasis added).
The state, in response to petitioner's claims, argued:
Thus the procedural question at both trial and appellate levels was placed before the Connecticut Supreme Court, which held the statements to be admissions and admissible as a matter of Connecticut evidentiary law. The court did not speak to any constitutional question except to note Stepney, 191 Conn. at 254, 464 A.2d 758, citing State v. Barlow, 177 Conn. 391, 395, 418 A.2d 46 (1979) and State v. Zeko, 176 Conn. 421, 425, 407 A.2d 1022 (1979). Both Barlow and Zeko held statements found to be voluntary were admissible. Thus, the Connecticut Supreme Court did not decide the precise point that petitioner now raises and did not indicate that its silence was or was not based on procedural considerations.
Petitioner's application for certiorari was denied by the United States Supreme Court. The present petition was then brought on the same grounds on which the petition for certiorari was based.
The first question is whether petitioner is barred here by reason of his failure to raise the issue in the trial court and on appeal. If it was raised on appeal, was it done properly and adequately? Petitioner not only failed to state a constitutional ground for his original objection, but also did not do so at several subsequent occasions in the course of the trial when it was feasible for him to have done so. Petitioner does not argue that a constitutional right attached to the statements or conduct at their occurrence, even though he characterizes them as assertions of his fifth and sixth amendment rights. Rather, he argues that the violation of a fifth amendment right occurred when the court admitted the evidence. Petitioner did not, thereafter, raise his present constitutional objection either before the evidence was actually heard, after it was heard (when a motion to strike might have been made), prior to the testimony of the second police officer, nor in a motion for a new trial (none such is reflected in the record).
The prosecutor did not ask Cavanaugh a direct question which specifically elicited the testimony concerning petitioner's election to stop answering questions and his intent to contact an attorney. That testimony came in the course of Cavanaugh's running description of petitioner's conversation. When it was spoken by Cavanaugh, no objection or motion to strike was made by petitioner. Cavanaugh later testified to petitioner's termination of the interview, without objection or a motion to strike. Tr. 1293, 1297, 1309 (Cross-examination), 1314. When Daloisio testified thereafter, clearly for the purpose of describing Cavanaugh's interview of the petitioner, petitioner made only the same hearsay objection. In addition, when a specific question as to the termination of the interview was put to Daloisio, there was no objection by which the repetition of the description, of which petitioner here complains, could have been avoided. (Tr. 1630-31).
Petitioner does not discuss the absence of any constitutional objection before the trial court. He does claim to have raised the issue on appeal, but does not address the failure of the Connecticut Supreme Court to speak to the issue and whether it is thus to have been deemed to be disposed of on procedural grounds. It is not without significance that the evidence from Cavanaugh, though it came in direct examination, was not specifically elicited by a question asked by the prosecutor but was part of a running commentary, and no reference was thereafter made to it. See United States v. Williams, 556 F.2d 65, 67 (D.C. Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1070 (1977).
The question then is the propriety of granting petitioner habeas corpus relief on a ground not raised at trial, sketchily, if at all, raised on appeal, and not decided on appeal. The linchpin of the...
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