Breest v. PerrinBreest v. Perrin
- Reporters:
- ,
- Before:
- Devine
These habeas corpus cases, consolidated per our Order of October 4, 1979, present the common question whether the holding in Dunn v. Perrin, 570 F.2d 21 (1st Cir.), cert. denied, 437 U.S. 910, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978) — that New Hampshire’s former reasonable doubt jury instruction is constitutionally invalid — applies retroactively so as to require reversal of petitioners’ convictions and new trials.
Petitioner Robert Breest was convicted of first degree murder on March 22, 1973, following a jury trial. Petitioner Frederick J. Martineau was similarly convicted of first degree murder on November 14, 1959, following a jury trial. Both petitioners have appealed unsuccessfully to the New Hampshire Supreme Court issues other than that raised herein. See State v. Breest, 116 N.H. 734, 367 A.2d 1320.(1976); State v. Nelson [Martineau], 103 N.H. 478, 175 A.2d 814 (1961), cert. denied, 369 U.S. 881, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962). Petitioners’ motions for new trials (State v. Breest, 118 N.H. 416, 387 A.2d 643 (1978), cert. denied, 442 U.S. 931, 99 S.Ct. 2864, 61 L.Ed.2d 300 (1979); State v. Nelson, 105 N.H. 184, 196 A.2d 52 (1963), cert. denied, 377 U.S. 1001, 84 S.Ct. 1936, 12 L.Ed.2d 1050 (1964), as well as their attempts at habeas corpus relief on both state and federal levels have met with an equal lack of success. See Breest v. Helgemoe, 117 N.H. 40, 369 A.2d 612 (1977) (re parole eligibility); Breest v. Helgemoe, 579 F.2d 95 (1st Cir.), cert. denied, 439 U.S. 933, 99 S.Ct. 327, 58 L.Ed.2d 329 (1978); Breest v. Perrin, 479 F.Supp. 495 (D.N.H.1979) (petition denied), aff’d 624 F.2d 1112 (1st Cir., 1980); Nelson v. Hancock, 210 F.Supp. 60 (D.N.H.1962) (denied for failure to exhaust state remedies); Nelson v. Hancock, 239 F.Supp. 857 (D.N.H.1965) (finding for petitioners), rev’d 363 F.2d 249 (1st Cir. 1966), cert. denied, 386 U.S. 984, 87 S.Ct. 1292, 18 L.Ed.2d 234 (1967). Petitioner Martineau was successful, however, in obtaining a change in his sentence from death to life imprisonment, and was eventually paroled. See State v. Martineau, 112 N.H. 278, 293 A.2d 766 (1972), and State ex rel. Thomson v. State Board of Parole, 115 N.H. 414, 342 A.2d 634 (1975). 1
I.
Respondents here concede that the instructions to the respective juries in petitioners’ cases are substantially similar to those at issue in Dunn, supra, 570 F.2d at 23 n.1-a fact which we have confirmed from our own examination of the trial transcripts in these cases. (Breest, trial transcript, Vol. V at 1671-72; Martineau, trial transcript, Vol. XIV at 77-80.) In Dunn the First Circuit concluded that the cumulative effect of three errors that are contained in each of these charges was “to obfuscate.one of the ‘essential elements of due process and fair treatment’ proof beyond a reasonable doubt. Id. at 25, quoting In re Winship, 397 U.S. 358, 359 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See also Tsoumas v. New Hampshire, 472 F.Supp. 1134 (D.N.H. 1979) (as to petitioner Wentworth).
Nevertheless, respondents argue that the holding in
Dunn
has no retroactive application in these cases. The United States Supreme Court has stated that “ ‘[wjhere the
major
purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that
substantially
impairs its truth-finding function and so raises
serious
questions about the accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect’ ”.
Hankerson v. North Carolina,
432 U.S. 233, 243, 97 S.Ct. 2339, 2345, 53 L.Ed.2d 306 (1977),
quoting Ivan V. v. City of New York,
407 U.S. 203, 204, 92 S.Ct. 1951, 1952, 32 L.Ed.2d
II.
As noted in New Hampshire Supreme Court’s
per curiam
opinion that disposed of the habeas corpus petitions of Breest and Martineau raising the same issue presented here, “[i]n this State, unlike the federal rule permitting objections to suffice, we have required for decades that an objection be made and an exception taken in the event of an adverse ruling by the trial judge. This practice and custom have a statutory basis in RSA 490:10 and RSA 491:17.”
Martineau v. Perrin,
119 N.H. -, 404 A.2d 1100, 1102 (1979). These statutes date back to 1901 and 1855 respectively, and a number of cases handed down in this state have relied upon this practice and custom as grounds for decision. Included among the latter are the following cases which deal specifically with jury instruction issues:
Moore v. Ross,
11 N.H. 547, 557 (1841) (“If a party desire an instruction of the court upon any particular point, or that the court should give certain views of the law to the jury, and the judge omit so as to instruct the jury, the proper course is for the party to move the court to instruct, and if the court decline, he may then make the exception. But he should not lie by, until after the trial, and then take the exception when it is too late to supply the omission”);
Goodrich v. Eastern Railroad,
38 N.H. 390, 396 (1859) (verdict cannot be disturbed where further requested instructions were not given, where defendants failed to except to those that were given);
State v. Isabelle,
80 N.H. 191, 192,
With respect to the cases at bar, finding that neither Breest nor Martineau had objected to or excepted to the reasonable doubt charges given the juries in their respective cases, the New Hampshire Supreme Court ruled that petitioners had thus failed to preserve the issue presented for subsequent appeal and post-conviction relief. 5 In this light, the Court dismissed the petitions. Petitioners offer several grounds why review of their cases here should not be precluded by the above holding of the New Hampshire Supreme Court.
First, petitioners argue that this situation falls within a recognized exception to the general rule set forth above, citing inter
alia, Barton v. City of Manchester,
110 N.H. 494, 272 A.2d 612 (1970), and cases cited therein. Alternatively, petitioner Breest argues that the remarks made by his counsel to the trial judge constitute an objection sufficient to comply with such rule. In its
per curiam
opinion to these cases, the Supreme Court of New Hampshire rejected both these contentions,
Martineau v. Perrin, supra,
404 A.2d at 1102. As these contentions raise matters purely of state law, we are not free to overturn rulings thereon by the highest court of the state unless it can be shown that that court applied such law arbitrarily or in a less than even-handed manner in violation of the Fourteenth Amendment.
6
A claim to that effect was raised by petitioners in
Grace v. Butterworth,
No. 79-1422, slip op. (1st Cir., June 27, 1980), who complained that the Massachusetts Supreme Judicial Court had applied its holding in
Commonwealth v. Ferreira,
373 Mass. 116, 364 N.E.2d 1264 (1977) (finding constitutionally inadequate the definition of ‘beyond a reasonable doubt’ contained in the trial court’s jury instructions) retroactively so as to require reversal of the convictions
In light of the validity of the New Hampshire Supreme Court’s decision that petitioners have failed to comply with this State’s contemporaneous objection and exception rule, the central issue of federal law presented by these cases is whether that non-compliance represents “an independent and adequate state procedural ground that bars the federal courts from addressing the issue [here, of retroactivity] on habeas corpus”. County Court of Ulster County, New York v. Allen, 442 U.S. 140, 148, 99 S.Ct. 2213, 2220, 60 L.Ed.2d 777 (1979). In a footnote to its opinion in Hankerson, supra, wherein the Court held that its decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), was to be given complete retroactive effect, the Supreme Court of the United States made the following comment in response to concerns (similar to those expressed here) regarding the integrity of past convictions:
Moreover, we are not persuaded that the impact on the administration of justice in those States that utilize the sort of burden-shifting presumptions involved in this case will be as devastating as respondent asserts. If the validity of such burden-shifting presumptions were as well settled in the States that have them as respondent asserts, then it is unlikely that prior to Mullaney many defense lawyers made appropriate objections to jury instructions incorporating those presumptions. Petitioner made none here. The North .Carolina Supreme Court passed on the validity of the instructions anyway. The States, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error. See, e. g.,Fed.Rule Crim.Proc. 30 .
432 U.S. at 244 n.8, 97 S.Ct. at 2345 (emphasis added). Six days later, the Supreme Court handed down its opinion in
Wainwright v. Sykes,
433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Therein, the Court held that the rule of
Francis v. Henderson,
425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), barring federal habeas review absent a showing of “cause” and “prejudice” attendant to a state procedural waiver shall be applied to a waived objection to the admission of a confession at trial as opposed to the holding in
Fay v. Noia,
372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)-that a state procedural bar arising from a failure to appeal would not prevent federal habeas
At the outset we note, as did the Fourth Circuit majority in
Cole, supra,
620 F.2d at 1062 n.7, that petitioners must satisfy both the “cause” and “prejudice” prongs of the
Wainwright
standard in order to avoid the bar presented to our review of their cases on habeas by operation of New Hampshire’s contemporaneous objection and exception rule.
See also Ramsey v. United States,
448 F.Supp. 1264, 1273 (N.D.Ill.1978);
Barrier v. Egeler,
583 F.2d 515, 525 (6th Cir.) (dissenting opinion),
cert. denied,
439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978). Petitioners submit that the “cause” for their failure to comply with that rule at their trials by objecting and excepting to the courts’ definitions of reasonable doubt lies in “error, mistake and misfortune”. Although the Massachusetts counsel who represented petitioners at their trials might have had
Even if the Fourth Circuit reading of “cause” that we have here adopted were incorrect, we find our review of petitioners’ cases on habeas barred by the absence of “prejudice” to them attendant to the state procedural waiver. For reasons that will be set forth more fully in Part III of this Opinion, we find from our review of the trial transcript in petitioner Breest’s case that the evidence supportive of the guilty verdict is so overwhelming as to be harmless beyond a reasonable doubt. See Wainwright, supra, 433 U.S. at 97-99, 97 S.Ct. at 2511-2513 (White, J., concurring in the judgment).
With regard to the absence of “prejudice” in Martineau’s case, we note the convincing analysis of the court in Robertson v. Warden, Maryland Penitentiary, Collins, 466 F.Supp. 262, 268-72 (D.Md.1979) to the effect that the presence of evidence of guilt “substantial” to a sufficient degree may negate any possibility of such prejudice. From our review of the fourteen-volume transcript in petitioner Martineau’s case, we find such substantial evidence of guilt. As the New Hampshire Supreme Court’s summary of the trial in State v. Nelson, supra, 103 N.H. at 480-83, 175 A.2d at 816-18, accurately sets forth the evidence upon which we base our opinion, we do not repeat that recitation here but refer to that opinion. Suffice it to say that as in Breest’s case, the State in Martineau’s case presented a wealth of circumstantial evidence pointing strongly toward guilt. (As will be noted in Part III of this Opinion, the addition in Breest’s case of the testimony of witness Carita recounting Breest’s confession had the effect of making the evidence there compelling.)
For all the above reasons, we find that petitioners have failed to show sufficient “cause and prejudice” so as to avoid the insulating effect upon their convictions attendant to this State’s enforcement of its long-standing rule requiring contemporaneous objections and exceptions. Cf. Tsoumas v. New Hampshire, 611 F.2d 412, 412 n.l (1st Cir. 1980). Their petitions for habeas corpus are thus dismissed on that ground.
III.
In closing, we note that even if the above state procedural bar did not effectively insulate these cases from our review, and even if we were to apply the holding in
Dunn
retroactively to them, we would still deny petitioner Breest the relief he seeks on the ground that the evidence of his guilt is so overwhelming as to be harmless beyond a reasonable doubt.
Harrington v. California,
395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1968);
United States v. Christian,
571 F.2d 64, 69-70 (1st Cir. 1978). From our reading of the recent opinion in
Breest v. Perrin,
624 F.2d 1112, at 1116 (1st Cir., 1980), we believe the First Circuit itself has so concluded and refer to that court’s recitation of the relevant evidence as the basis for our own opinion in this regard. We note that by so finding, we rule implicitly (in answer to the question left open in
Dunn, supra,
SO ORDERED.
Notes
. That petitioner Martineau is now on parole does not, of course, affect this court’s jurisdiction to consider his habeas petition alleging that he is “in custody in violation of the Constitution of the United States”. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).
. In Ivan V., which like Winship involved an adjudication of delinquency based on a “preponderance of the evidence standard of proof’, the Court determined that the holding of Win-ship should be applied retroactively so as to require reversal of the outcome of a juvenile proceeding that took place before Winship was decided.
. In Mullaney the Court found that Winship applied to Maine’s requirement that a defendant charged with murder prove that he acted “in the heat of passion or sudden provocation” in order to reduce the homicide to manslaughter. Cf. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (holding that it was constitutionally permissible for New York’s murder statute to place upon defendant the burden of proving by a preponderance of the evidence, so as to reduce the crime to the separately defined offense of manslaughter, the affirmative defense that he acted “under the influence of extreme emotional disturbance for which there was a reasonable explanation”).
. Note, however, the First Circuit’s observations in Dunn that the first two of the three errors it identified in New Hampshire’s old jury instruction defining reasonable doubt did put petitioners to some task of proof. 570 F.2d at 21-22.
. Petitioner Breest’s petition reached the New Hampshire Supreme Court by way of the Merrimack County Superior Court’s reserving and transferring of questions of law raised by Breest’s exception to its denial of his petition. Petitioner Martineau’s petition was filed directly to the New Hampshire Supreme Court apparently at the behest of the Office of the Attorney General of New Hampshire.
. It has long been established that “state courts are the ultimate expositors of state law” and that the federal courts are bound by the interpretations thereof of such courts absent extreme circumstances. Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1886, 44 L.Ed.2d 508 (1975); Pagan Torres v. Negron Ramos, 578 F.2d 11, 14 (1st Cir.), cert. denied, 439 U.S. 1005, 99 S.Ct. 619, 58 L.Ed.2d 682 (1978); Salemme v. Ristaino, 587 F.2d 81, 87 (1st Cir. 1978).
Parenthetically, however, we note our agreement with the New Hampshire Supreme Court as to its resolution of the above two state law contentions of petitioners. As to the first of these, we find the instant cases to be factually distinguishable from those cited by petitioners: while the parties at their initial appearance before the New Hampshire Supreme Court did appear to concede the record in order to present the transferred question as to the retro-activity of Dunn (as was the case in Sheehan v. Company, 83 N.H. 542, 145 A. 139 [1929]), and while it is perhaps true that any efforts by petitioners to object to the reasonable doubt jury instructions would have been futile given the state of the law at the time of their trials (as was the case with the evidentiary issue raised in State v. Nelson, 105 N.H. 184, 196 A.2d 52 [1963]), this case represents the first occasion where the Court has had the opportunity to exercise the option afforded it in Hankerson, supra, 432 U.S. at 244 n.8, 97 S.Ct. at 2345, to be discussed later in this Opinion. And as to the second contention, it is obvious from the face of the remarks made by Breest’s counsel to the trial court that counsel was not excepting to the court’s instructions:
Mr. Leonard: Judge, as far as I am concerned, I have no objection to anything you said. Of course, if the Supreme Court changes their mind, I mean, the Supreme Court next year, I might be able to disagree, but I can’t now.
Breest Tr., Volume V, at 1683-84. It is noteworthy that other than specific requests as to first degree murder and Breest’s failure to testify, counsel had requested “routine instructions.” (Id. at 1597.)
. On habeas in that case we held, citing Hancock v. White, 378 F.2d 479 (1st Cir. 1967) that our determination as to the applicability of Dunn to Wentworth’s case did not reach the question of Dunn’s bearing upon cases for which ordinary avenues of appeal had already been exhausted. Tsoumas, supra, 472 F.Supp. at 1137. See also United States v. Eaddy, 595 F.2d 341, 343 (6th Cir. 1979).
. We recognize, of course, that some circuits are not in agreement with the Fourth Circuit as to its resolution on the meaning of “cause”. See, e. g., Tyler v. Phelps, 622 F.2d 172 (5th Cir. 1980), and Collins v. Auger, 577 F.2d 1107, 1110 n.2 (8th Cir. 1978) (dictum). However, we believe the sound reasoning of the Fourth Circuit majority in Cole will cause some re-examination of contrary opinions in other circuits. In this regard, see Isaac v. Engle, No. 78-3488 (6th Cir., Mar. 24, 1980) (vacating and ordering a rehearing en banc as to the earlier slip opinion handed down by a three-judge panel of that circuit on February 8, 1980).
. See Bumpus v. Gunter, 452 F.Supp. 1060 at 1061 (D.Mass.1980), appeal docketed, C. 80-1114 (1st Cir., Feb. 14, 1980).