Stepney v. Lopes

• Decision Date: 16 April 1985
• Docket Number: D,No. 753,753
• Citation: 760 F.2d 40
• Parties: William H. STEPNEY, Jr., Petitioner-Appellant, v. Raymond LOPES and Joseph I. Lieberman, Respondents-Appellees. ocket 84-2317.
• Court: U.S. Court of Appeals — Second Circuit

Page 40

760 F.2d 40

William H. STEPNEY, Jr., Petitioner-Appellant, v. Raymond LOPES and Joseph I. Lieberman, Respondents-Appellees.

No. 753, Docket 84-2317.

United States Court of Appeals Second Circuit.

Argued Jan. 30, 1985.

Decided April 16, 1985.

James A. Wade, Hartford, Conn. (Robinson & Cole, Hartford, Conn., on brief), for petitioner-appellant.

Carl Schuman, Asst. State's Atty., Wallingford, Conn. (Anne C. Dranginis, Asst. State's Atty., Susann E. Gill, Deputy Asst. State's Atty., Office of the Chief State's Atty., Wallingford, Conn., on brief), for respondents-appellees.

Before LUMBARD, NEWMAN and KEARSE, Circuit Judges.

KEARSE, Circuit Judge.

Petitioner William Stepney appeals from a judgment of the United States District Court for the District of Connecticut, Peter C. Dorsey, Judge, dismissing his petition for a writ of habeas corpus, which asserted principally that the admission at trial of his prearrest statement requesting an attorney violated his Fifth Amendment rights. In an opinion reported at 592 F.Supp. 1538 (1984), familiarity with which is assumed, the district court concluded that Stepney was not entitled to habeas corpus relief because he had failed to assert this constitutional claim in the state trial court, resulting in a procedural default, and he had not demonstrated in the district court cause for his noncompliance with the state court procedures or prejudice resulting from the alleged constitutional violation sufficient to excuse the default. On appeal, Stepney argues that federal review of his constitutional claim is not barred as a result of his procedural default because the state appellate court did not reject his claim on that basis and because, in any event, he has shown cause and prejudice sufficient to excuse the default. ¹ We disagree and affirm the judgment dismissing his habeas petition.

I. BACKGROUND

Stepney was charged with murder, pursuant to Conn.Gen.Stat. Sec. 53a-54a, and convicted after a jury trial. He is serving a sentence of twenty-two years to life imprisonment.

A. The State Court Proceedings

1. The Trial

At Stepney's trial, two Connecticut State Troopers were called by the prosecutor to testify about their pre-arrest interview of Stepney on May 9, 1979, the day the victim's body was discovered. Stepney's counsel objected on the ground that any statements attributed to Stepney in this testimony would be inadmissible hearsay. Apparently relying on State v. Villafane, 171 Conn. 644, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977), in which the Connecticut Supreme Court had stated, obiter, that "[t]o qualify as an admission, a statement made by a party must be inconsistent with a position which he takes at trial," id. 171 Conn. at 674, 372 A.2d at 97-98, Stepney's counsel argued that Stepney's statements to the state troopers did not qualify as admissions because they were not inconsistent with any position Stepney had taken at trial. Stepney's counsel stressed the evidentiary nature of his objection to the police officer's testimony:

I'm dealing here with a pure evidentiary question and the rules of court and not any constitutional claim.

592 F.Supp. at 1540 (quoting transcript). The court overruled the objection.

Trooper James Cavanaugh then testified about the prearrest interview with Stepney at the Litchfield State Police Barracks. Toward the end of the prosecutor's direct examination of Cavanaugh, the following testimony was given:

Q: What did you ask him?

A: I asked him again to recall where the--where he had left the beer can and, again, he said he didn't know and I just said to him, "What would you say if I told you that there was an eight ounce beer can found next to the victim's body?" and Mr. Stepney said to me, "Well, after she had finished her drink she wanted a beer, so I went out to my truck and I got her a can of beer," and I said something to the effect, "Well that doesn't make sense to me, that what I know about the victim, she was a liquor drinker and seeing as she had a bottle of liquor there, why would she want a beer?" And at that point Mr. Stepney got very mad and very upset and jumped up and said he wanted a lawyer and didn't want to talk to me anymore, and he left the room.

Q: Did he leave the barracks at that time?

A: Yes, he did.

Q: Now, earlier in the evening, did you have an opportunity to observe his demeanor when he was at the Lockwood house, specifically?

A: Yes, I did.

Q: And what did you observe about his--

[Stepney's counsel]: Objection, relevance.

Id. (quoting transcript; emphasis added.) Stepney did not object to this testimony on constitutional grounds. Thereafter, Trooper James Daloisio was questioned about the same interview. Stepney made the same hearsay objection he had made earlier; and when Daloisio was asked a specific question about how the interview ended, Stepney voiced no objection on constitutional grounds. Stepney never asked that the testimony as to his request to consult counsel be stricken or that the jury be instructed to ignore it.

Stepney testified in his own behalf, giving his version of the events on the morning of the crime and stating that the victim had been alive when he left her house. The trial presentations consumed fifteen days; the jury deliberated for two days before finding Stepney guilty.

2. Appeal to the State Supreme Court

Stepney appealed to the Connecticut Supreme Court, arguing, inter alia, that (a) his prearrest statements, including his request for counsel, were inadmissible hearsay under the Villafane rule; and (b) the admission of the statements interfered with his constitutionally protected right not to testify at trial. In response, the State argued, inter alia, that Villafane should be overruled and that, as Stepney had expressly waived at trial any constitutional objection to the admission of the statements, appellate review of any such constitutional claim was barred. In addition, the State argued that Stepney had not in fact been forced to testify.

In an opinion reported sub nom. State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), familiarity with which is assumed, the Connecticut Supreme Court affirmed Stepney's conviction. The court overruled so much of Villafane as had stated that a criminal defendant's out-of-court statements are not admissible unless inconsistent with his trial position, and it therefore rejected Stepney's argument that his prearrest statement was inadmissible hearsay. Although the court discussed several other claims made by Stepney on appeal, it did not address his claim that his Fifth Amendment right not to testify at trial--or any other constitutional right--had been violated by the admission of his prearrest statement.

The Connecticut Supreme Court denied Stepney's motion for reargument. The United States Supreme Court denied his petition for certiorari, --- U.S. ----, 104 S.Ct. 1455, 79 L.Ed.2d 772 (1984), and his petition for rehearing, --- U.S. ----, 104 S.Ct. 2163, 80 L.Ed.2d 547 (1984).

B. The Present Habeas Petition

Stepney then filed the present petition for habeas corpus in the district court pursuant to 28 U.S.C. Sec. 2254 (1982). He argued principally that testimony as to his exercise of his Sixth Amendment right to counsel should not have been admitted in evidence and that its admission violated his Fifth Amendment right to remain silent at trial by forcing him to testify in order to explain his conduct. The court dismissed the petition on grounds of procedural default.

The court found that Stepney had failed to make any timely constitutional objection in the trial court, either by way of motion to strike or motion for a new trial. 592 F.Supp. at 1541. The court noted, that under Connecticut law, an appeal from an evidentiary ruling at trial would not be considered without a proper objection and exception, id. at 1542-43 (citing State v. Braman, 191 Conn. 670, 684, 469 A.2d 760, 767 (1983); Conn. Practice Book Sec. 288), and that the State had argued to the Connecticut Supreme Court that Stepney's failure barred him from obtaining appellate review of his constitutional claim. Since the Connecticut Supreme Court had not mentioned Stepney's constitutional claim in its opinion affirming his conviction, the district court, applying the standard set forth by this Court in Martinez v. Harris, 675 F.2d 51 (2d Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982), and Johnson v. Harris, 682 F.2d 49 (2d Cir.), cert. denied, 459 U.S. 1041, 103 S.Ct. 457, 74 L.Ed.2d 609 (1982), inferred that the Connecticut Supreme Court had accepted the State's procedural argument and had refused to reach the merits of the constitutional claim. Accordingly, the district court ruled that Stepney's procedural default on his constitutional claim in the state trial court precluded federal habeas corpus review of that claim unless he could show cause for the failure to raise the claim and prejudice arising from the alleged constitutional violation, see Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977).

The district court ruled that Stepney had shown neither cause nor prejudice. It rejected the argument that he had suffered prejudice because the admission of the statements forced him to testify in order to explain those statements, noting (1) that the mere presentation of evidence against a defendant does not force him to testify, and (2) that Stepney did not take the stand to explain his desire to see a lawyer but rather "clearly took the stand to present his own case and defense and to refute and deny the evidence against him." 592 F.Supp. at 1544.

II. DISCUSSION

On appeal, Stepney does not contest the ruling that he did not appropriately raise his constitutional objection to the challenged statement at trial. He argues instead that federal habeas corpus review is not foreclosed because (1) the Connecticut Supreme Court did not rule that he had...