Walker v. Butterworth

• Decision Date: 28 September 1978
• Docket Number: Civ. A. No. 77-973-C.
• Citation: 457 F. Supp. 1233
• Parties: Terrell WALKER, Petitioner, v. Frederick BUTTERWORTH et al., Respondents.
• Court: U.S. District Court — District of Massachusetts

457 F. Supp. 1233

Terrell WALKER, Petitioner, v. Frederick BUTTERWORTH et al., Respondents.

Civ. A. No. 77-973-C.

United States District Court, D. Massachusetts.

September 28, 1978.

COPYRIGHT MATERIAL OMITTED

Norman S. Zalkind and Stephen L. Saltonstall, Zalkind & Zalkind, and Eric D. Blumenson, Suffolk University Law School, Boston, Mass., for petitioner.

Robert S. Potters, Asst. Atty. Gen., Crim. Div., Boston, Mass., for respondents.

OPINION

CAFFREY, Chief Judge.

This is a § 2254 petition for a writ of habeas corpus brought by a state prisoner, Terrell Walker, against Fred Butterworth, Superintendent of Massachusetts Correctional Institution, Walpole, Massachusetts. Petitioner is presently serving a sentence of life imprisonment imposed by the Superior Court of Suffolk County after his convictions on one count of first-degree murder of John D. Schroeder, a plain-clothed police officer, and four counts of armed robbery of Officer Schroeder, a loan company, and two customers. The defense offered was that petitioner was insane at the time he committed the charged offenses. The convictions were affirmed by the Supreme Judicial Court, and a petition for certiorari was subsequently denied. Commonwealth v. Walker, Mass., 350 N.E.2d 678, cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976). Petitioner has exhausted available state remedies.

Under 28 U.S.C.A. § 2254(a), federal habeas corpus review does not lie for every legal error, infirmity or undesirable practice occurring in a state trial, but rather is limited to those errors which violate a state prisoner's federal constitutional or statutory rights and which cannot be said to be harmless beyond a reasonable doubt. E. g., United States ex rel. Santiago v. Vincent, 423 F.Supp. 103, 106 (S.D.N.Y.1976), aff'd, 553 F.2d 94 (2d Cir. 1977); see Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). Petitioner contends here that his jury trial in August, 1974 was constitutionally defective in four respects:

(1) The court's instruction that the Commonwealth cannot take an appeal but the defendant can violated petitioner's rights to due process of law and to a constitutionally fair trial by an impartial jury;

(2) the combination of the court's requirement that the petitioner personally exercise his peremptory jury challenges, and the prosecutor's argument that this exercise demonstrated sanity, violated petitioner's rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution;

(3) the confinement of petitioner in the prisoner's dock eroded the presumption of innocence and deprived petitioner of his right to a constitutionally fair and impartial trial;

(4) the court's instructions, particularly on the "presumption of sanity," reduced the Commonwealth's burden of proof and deprived him of a constitutionally fair trial on the issue of his sanity, in violation of petitioner's right to due process of law.

Every claim raised in support of the petition was directly addressed and rejected by a majority of the Supreme Judicial Court. Indeed, disagreement was voiced by three of the Justices only with respect to the presumption-of-sanity issue. 350 N.E.2d at 702 (Hennessey, C. J., & Kaplan, J., dissenting in part), 350 N.E.2d at 702-03 (Liacos, J., concurring). On habeas review their reasons in support of a discretionary reversal under Mass.Gen.Laws Ann. ch. 278, § 33E (West Supp. 1977-78) do not require or support a finding of constitutional error. See Cupp v. Naughten, supra, 414 U.S. at 146, 94 S.Ct. 396.

After a hearing and a review of the voluminous record, I rule that petitioner's application for a writ of habeas corpus should be denied and the petition dismissed.

Rights of Appeal

At trial, the court, in the course of its instructions to the jury, offered an explanation of why defense counsel, but not the Assistant District Attorney, had taken exception to overruled objections. The court observed that the Commonwealth enjoyed no right of appeal from "particular rulings of law" made at the trial. By inference, the court suggested that the defendant could pursue an appeal from such rulings and his counsel took exceptions to its overruled objections in order to preserve that right.

The Supreme Judicial Court rejected claim of error re the mention of appeal rights. In acknowledging the sensitivity of this subject in the context of jury instructions, the court declared that the better practice, in most trials, would be to refrain from mentioning either the appellate process or the objection and exception procedure. 350 N.E.2d at 696-97. But viewing the lengthy charge as a whole, the court concluded that the challenged portion of the instruction "was plainly designed to protect the defendant from prejudice by explaining his counsel's unquestionably proper actions in preserving his client's rights." Id. 350 N.E.2d at 696-97. Therefore, it ruled that cases such as United States v. Fiorito, 300 F.2d 424, 426-27 (7th Cir. 1962), and State v. Mount, 30 N.J. 195, 212-15, 152 A.2d 343 (1959), were distinguishable because these remarks were not intended to dilute the jurors' appreciation for the significance, correctness, or permanence of their verdicts. Id. 350 N.E.2d at 696; cf. People v. Johnson, 284 N.Y. 182, 187-88, 30 N.E.2d 465, 467 (1940).

Petitioner now contends that the potential effect of the instruction on the jury, not the well-intentioned motive of the trial judge, should have been the focal point of the reviewing court. He argues that coming from the judge, the remark was prejudicial because it skewed the jury's sense of responsibility by allowing its members to believe that a mistaken decision against the Commonwealth was final, but that an error against the defendant could always be corrected.

The precise contours for federal habeas review of an erroneous state-court instruction have been forcefully articulated by the Supreme Court:

Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even "universally condemned," but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.

. . . A single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U.S. 104, 107 46 S.Ct. 442, 443, 70 L.Ed. 857 (1926). . . . A judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction.

. . . The question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violated due process. Cupp v. Naughten, supra, 414 U.S. at 146-47, 94 S.Ct. at 400.

Neither Fiorito nor Mount, relied on by plaintiff, involved federal habeas review of a jury charge delivered at a state court proceeding. Indeed, both decisions relied upon the broad, nonconstitutional, supervisory-power grounds that Cupp rejected as alien to habeas analysis. 414 U.S. at 146, 94 S.Ct. 396, see 300 F.2d at 427, 152 A.2d at 352. Moreover, the jury instructions challenged in Fiorito flagrantly invited a juror to conclude that his factual determination was preliminary and thus unimportant. See 300 F.2d at 425-27. The instruction in the instant case, however, did no more than say that the judge's rulings of law were not final with respect to the defendant. See United States v. Miceli, 446 F.2d 256, 259-60 (1st Cir. 1971). It invited no abdication of the jury's exclusive province to find facts. Accordingly, Fiorito and Mount are distinguishable and do not control this case.

I concur with the Supreme Judicial Court that a fair reading of the challenged portion of the instruction suggests that it was gratuitously intended to benefit Walker, not to prejudice him. Speculation about the effect of a discrete portion of a 57-page charge, on the minds of lay jurors who sat through a two-week trial, is an uncertain task for a judge as well as for counsel. In its charge, the trial court made it clear to the jury: that the Commonwealth was obligated to prove the petitioner's guilt beyond a reasonable doubt; that their duty to pass upon the guilt or innocence of the defendant was a "grave," "solemn," and "heavy" one; that their verdict should be free of bias, prejudice or hostility; that speculation, guesswork, surmise or conjecture should play no part in their consideration; that they were the sole "judges . . . and final arbiters of the facts;" that their analysis of testimony should be fair, impartial, and dispassionate; and that they must accept and apply the law as instructed. Thus, even assuming that effect rather than intent is the proper inquiry, the trial judge's comment, in the context of the entire charge, plainly did not encourage, invite or suggest that the jury violate their oath and find the petitioner guilty because of the availability of appellate review on his behalf. Thus, applying the Cupp standard to this instruction, I conclude that the reference to the mechanics of appeal did not have the effect of prejudicially weakening the jurors' sense of their responsibility to find the facts and objectively determine guilt or innocence. Cf. Dunn v. Perrin, 570 F.2d 21, 25 (1st Cir. 1978), cert. denied, ___ U.S. ___, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978). Accordingly, I rule that the charge did not deny petitioner his constitutional rights to due process of law and a fair trial by an impartial jury.

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