Turner v. Fair, 79-1465
Decision Date | 18 March 1980 |
Docket Number | No. 79-1465,79-1465 |
Citation | 617 F.2d 7 |
Parties | Michael TURNER, Petitioner, Appellee, v. Michael V. FAIR, Respondent, Appellant. |
Court | U.S. Court of Appeals — First Circuit |
Robert V. Greco, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for respondent, appellant.
Nelson S. Baker, Boston, Mass., by appointment of the court, for petitioner, appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
The Commonwealth appeals from the district court's grant of Michael Turner's petition for a writ of habeas corpus. The district court concluded that petitioner's sixth amendment right to confront the witnesses against him had been abridged by the state trial court's failure to strike the direct testimony of government witnesses who had invoked their fifth amendment privilege against self-incrimination during cross-examination. Because we conclude that the theory petitioner now advances to support his sixth amendment confrontation claim was not fairly presented to the state court, we vacate the order of the district court and remand with instructions to dismiss the petition.
Petitioner, Michael Turner, and his co-defendant cousin, Bruce Turner, were tried in a Massachusetts state court and were convicted of murder in the first degree, assault with intent to rob, unlawfully carrying a weapon, and using a motor vehicle without authority. The evidence is summarized in the opinion of the Supreme Judicial Court (SJC) affirming petitioner's conviction:
Commonwealth v. Turner, 371 Mass. 803, 805-06, 359 N.E.2d 626, 627-28 (1977).
Petitioner's defense theory in the state court was that Wallace and Evans were the guilty parties, but had framed petitioner in order to obtain immunity from prosecution. Petitioner testified he had not been present during the robbery at all.
On cross-examination petitioner sought to question Wallace and Evans with respect to their prior robberies of the same Cumberland Farms store. In their testimony before the grand jury, Wallace and Evans admitted to robbing that store in August 1973 and September 1973, respectively, although their grants of immunity did not extend to these earlier offenses. Concluding that Wallace and Evans had not understood the scope of their immunity, the trial court therefore ruled that they had not validly waived their fifth amendment privilege by testifying before the grand jury to the earlier Cumberland Farms robberies; accordingly, the witnesses were permitted to invoke their privilege against self-incrimination when cross-examined about the earlier offenses.
Petitioner referred to the portions of the trial transcript where he had allegedly moved to strike 1 the witnesses' direct testimony and cited "Commonwealth v. Johnson, 1974 Adv.Sh. 1049, 1063 fn. 11 and cases cited therein" in support of his argument to strike. Note 11 of the Johnson case mentions United States v. Cardillo, 316 F.2d 606 (2d Cir.), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963), the case which articulates the theory upon which petitioner now relies.
Cardillo states in material part:
As Cardillo indicates, not every invocation of the fifth amendment privilege against self-incrimination results in a denial of the sixth amendment right of confrontation and requires striking the witness's testimony; a distinction is drawn between direct and collateral matters. While the line between these two categories may not always be clear, the essential inquiry "must finally be whether defendant's inability to make the inquiry created a substantial danger of prejudice by depriving him of the ability to test the truth of the witness's direct testimony." United States v. Rogers, 475 F.2d 821, 827 (7th Cir. 1973), quoting Fountain v. United States, 384 F.2d 624, 628...
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