Opinion
CIVIL ACTION NO. 97-CV-10800-GAO.
July 30, 2001
MEMORANDUM AND ORDER
Petitioner John M. Feroli filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Feroli asserts that his conviction of two counts of murder must be set aside because (1) the Commonwealth failed adequately to disclose exculpatory evidence in the form of specific promises, rewards and inducements given to two key witnesses who testified at trial, and failed to correct the witnesses' allegedly false testimony to that effect, and (2) the trial judge erred in failing to charge the jury properly that "no adverse inference" could be drawn from petitioner's decision not to testify or present evidence at trial. Following careful review of the petition, respondent's answer, and supporting papers, I conclude that the petition must be DENIED.
I. Facts
On October 6, 1984, Herbert Andrews, Jr. and Thomas Cormier persuaded Carol Sylvester to lure William O'Connor and Thomas Sylvester to her home by telling them that she knew someone who wanted to purchase drugs from them. Commonwealth v. Feroli, 553 N.E.2d 934, 935 (Mass. 1990) (reciting facts of case). In fact, Andrews and Cormier planned to kill the two men because of a dispute arising from damage that Andrews had caused to O'Connor's automobile. Id. On October 7, 1984, Andrews and Cormier arrived at Carol Sylvester's home with two guns and a rope. Id. However, because the two victims never appeared, Andrews and Cormier postponed the planned killings until the next day. Id. To accomplish that goal the following day, Andrews and Cormier enlisted the assistance of the petitioner, and informed him of the planned killings. Id.
On October 8, 1984, Andrews, Cormier and the petitioner arrived at Carol Sylvester's home with a handgun, rifle, knife and baseball bat.Feroli, 553 N.E.2d at 935. After the victims arrived, they were shot by Andrews and Cormier. Id. at 937. The petitioner held a knife and baseball bat and stood watch by the door just before the killings. Id. Two days later, Carol Sylvester informed the police about what had occurred. Id. at 938.
II. Procedural History
On December 3, 1984, the petitioner and his two co-defendants, Andrews and Cormier, were indicted for the murders of O'Connor and Sylvester. At a pretrial hearing on March 8, 1985, Feroli moved for disclosure of all promises, rewards and inducements given by the Commonwealth to the witnesses Carol Sylvester and Donna Bolinder, which the justice of the Superior Court granted. Qualifying his ruling, the judge noted that he would not require the Commonwealth to account for "every nickel and dime" expended for the protection of the witnesses, nor would he require the prosecution to turn over all the bills and receipts relating to the protection.
The Commonwealth provided a statement to defense counsel that it "has provided all costs necessary for the care and protection of Carol Sylvester and her children; including transportation, housing and maintenance at a non-disclosed 'safe house' . . . [and] that she will be relocated after the trial of all three defendants . . . [t]he cost of said relocation will be borne by the Commonwealth." Memorandum of Petitioner in Support of Petition for Writ of Habeas Corpus, Document #1 at p. 7. Additionally, the Commonwealth asserted that it provided Carol Sylvester with immunity in exchange for her testimony. As to Donna Bolinder, the Commonwealth advised that it provided all costs necessary for the care and protection of Bolinder and her children, including transportation and housing, as well as help for Bolinder in obtaining employment. The petitioner subsequently moved for a more definitive response regarding the payment of Carol Sylvester's expenses, but the judge denied the motion.
The joint trial of all three defendants ended in a mistrial on May 13, 1985. Petitioner's second trial was severed from that of his co-defendants, and on June 9, 1986, a jury convicted him of two counts of first degree murder, for which he was sentenced to two consecutive life terms. At his second trial, he did not renew any objection to the adequacy of the Commonwealth's disclosures regarding benefits received by the witnesses, but he did timely request a "no adverse inference" jury instruction. After agreeing in a charge conference to give the instruction, the trial judge charged the jury as follows:
[T]he defendant has the absolute right to remain passive and require the Commonwealth to prove its case beyond a reasonable doubt, and in so doing he may elect to participate by way of examination of the evidence presented by the Commonwealth or not elect to participate to that extent. . . The evidence that is forthcoming is by way of direct examination, or cross-examination. You may ultimately take all of that evidence, that you have before you, and you weight it and consider it and decide what you find to be credible. Upon that evidence that you find to be credible and believable, you decide the issues of this case.Feroli, 553 N.E.2d at 937 (reciting charge given to jury by trial judge). Counsel for Feroli did not object after the charge to the trial judge's wording of the instruction and did not specifically request that the judge use more pointed "no adverse inference" language in the instruction, although he did object to other parts of the judge's charge. See Feroli, 553 N.E.2d at 937 (noting that defendant objected to portions of charge, but not specifically to lack of "no adverse inference" language).
Petitioner appealed his convictions to the Supreme Judicial Court pursuant to Mass. Gen. Laws c. 278, § 33 E, raising the claim that the trial judge erred in failing to give an explicit "no adverse inference" instruction. See id. at 935. Petitioner did not raise a claim on direct appeal that the Commonwealth failed adequately to disclose exculpatory evidence. See id. Because the petitioner had failed to object timely to the judge's omission of an explicit "no adverse inference" instruction, the SJC reviewed the claim under a "substantial likelihood of a miscarriage of justice" standard. See id. at 938. Holding that the instruction given did not create a substantial likelihood of a miscarriage of justice, the SJC affirmed the petitioner's convictions.See id. at 938.
Thereafter, the petitioner filed a motion for a new trial, asserting the discovery of new, exculpatory evidence regarding the extent of benefits conferred upon the Commonwealth's witnesses. After the second trial, the defendant had come into possession of actual bills and receipts of expenses incurred by the Commonwealth on behalf of Carol Sylvester, which revealed the dollar amount and other details about the Commonwealth's support and protection of the witnesses. The petitioner also alleged that Carol Sylvester and a chief investigating officer of the case, Dan Lowney, had an improper relationship and that he had coached her responses at trial. This allegation was based on statements made by Carol Sylvester during phone calls placed by her to the petitioner's attorney in June and August 1987.
A judge of the Superior Court, not the trial judge, held a full evidentiary hearing on the motion for a new trial on November 30, 1992, December 1, 1992, and January 24, 1993. The judge found that the failure of counsel to press the inducements issue at trial reflected a tactical choice by an experienced lawyer who understood that expanding on that line of questioning could lead to exposure by the prosecution of why the witnesses needed protection — specifically, that the defendants had threatened them in some manner. The judge also found "totally sufficient" the Commonwealth's disclosures to the petitioner about the nature of benefits conferred to the witnesses. Additionally, in light of Carol Sylvester's testimony during the evidentiary hearings, the judge found that when she had telephoned the petitioner's counsel, she was probably drunk, and her information was not reliable. He also found that she did not engage in an improper relationship with and was not coached by Looney. Accordingly, the judge denied the motion for a new trial.
Petitioner then moved for leave to appeal the denial to the S.C. On July 27, 1995, a single justice of the Supreme Judicial Court, acting as gatekeeper, denied the motion, finding that because the petitioner had been aware of the allegedly new evidence in regard to specific expenditures provided for the benefit of the witnesses in time to raise that issue on direct appeal, his claim could not be considered "new" as required by applicable state law and thus was procedurally barred. See Commonwealth v. Ambers, 397 Mass. 705, 707-08 (1986) (holding claim not "new" when grounds advanced for it available at time of trial or direct appeal).
III. Relevant Legal Principles
(a) Procedural Defaults
A procedural default of state rules constitutes an independent and adequate state ground which precludes habeas corpus review on the merits of the alleged error. See Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir. 1994); see also Wainwright v. Sykes, 433 U.S. 72, 84 (1977). A state court may waive the adequate and independent state ground if its "highest court declines to affirm on the basis of state law and conducts a 'detailed examination of federal law and federal cases . . . necessary to decide a specific question of federal law.'" Ortiz, 19 F.3d at 714, n. 6, quoting McCown v. Callahan, 726 F.2d 1, 3, (1st Cir.), cert. denied, 469 U.S. 839 (1984). However, where the SJC reviews a claim under the "substantial likelihood of a miscarriage of justice" standard, the court has not waived the procedural default. See id.; Tart v. Commonwealth of Mass., 949 F.2d 490, 496 (1st Cir. 1991).
When a petitioner has procedurally defaulted as to a claim of error either at trial or on direct appeal, habeas corpus review is barred absent a showing of "cause for" and "prejudice from" the default. See Sawyer v. Whitley, 505 U.S. 333, (1992) ("unless a habeas petitioner shows cause and prejudice . . . a court may not reach the merits of . . . procedurally defaulted claims"); Murray v. Carrier, 477 U.S. 478, 489-90 (1986) (holding "cause for" and "prejudice from" standard applies to procedural default at trial and on direct appeal); Wainwright, 433 U.S. at 87 (holding "cause and prejudice" test applies to procedural defaults). A petitioner may demonstrate "cause for" the default by showing that some objective factor external the defense impeded counsel's efforts to comply with the state procedural rule. See Murray, 477 U.S. at 488 (stating what circumstances establish "cause for" default); Burks v. DuBois, 55 F.3d 712, 716-17 (1st Cir. 1995). Neither counsel's deliberate choices of strategy nor counsel's errors constitute "cause" within the meaning of the rule. See Murray, 477 U.S. at 488; Burks, 55 F.3d at 711. On the other hand, a showing that the factual or legal basis for the claim was not reasonably available to counsel or that interference by officials occurred such that compliance with the procedural rule became impracticable would meet the "cause" standard. Murray, 477 U.S. at 488;Magee v. Harshbarger, 16 F.3d 469, 471-72 (1st Cir. 1994).
In order to satisfy the "prejudice" prong, a petitioner must demonstrate that the errors "worked to his actual and substantial disadvantage, infecting the trial with error of constitutional dimensions." Murray, 477 U.S. at 494, quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). Asserting the mere possibility of prejudice is insufficient to establish "prejudice from" the default. See id. Additionally, courts need not examine the "prejudice" element if the petitioner fails to show "cause," as both prongs must be satisfied in order for the court to grant habeas review. See Simpson v. Matesanz, 175 F.3d 200, 215, n. 10 (1st Cir. 1999) (stating no "prejudice" analysis required where petitioner fails to demonstrate "cause for" default).
If petitioner cannot satisfy the "cause and prejudice" test, a court may still allow federal habeas review on the merits upon a showing that the failure to address petitioner's claims will result in a "fundamental miscarriage of justice." See Ortiz, 19 F.3d at 714; see also Sawyer, 505 U.S. at 339; Burks, 55 F.3d at 717. This narrow exception arises only in extraordinary cases. See Sawyer, 505 U.S. at 340; Murray, 477 U.S. at 495-96; Burks, 55 F.3d at 717 ("This is a narrow exception to the cause-and-prejudice imperative . . . and explicitly tied to a showing of actual innocence"); Simpson, 175 F.3d at 210. To illustrate the probability of "actual innocence," thereby allowing federal habeas review on the merits, a petitioner must show "by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner [guilty]." Ortiz, 19 F.3d at 714, quoting Sawyer v. Whitley, 505 U.S. 333, 336 (1992); see also, Simpson, 175 F.3d at 210. At base, an evidentiary showing that establishes a "colorable claim of factual innocence" is prerequisite to habeas review. See Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986).
(b) Suppression by Prosecution of Evidence Favorable to the Accused
When the government fails to turn over exculpatory evidence to an accused upon request, it denies the defendant due process of law in violation of the Constitution where that evidence would be material either to guilt or punishment. See Brady v. Maryland, 373 U.S. 83, 87 (1963). This principle applies regardless of the prosecution's good faith and extends to cases where the government allows false evidence to go uncorrected. Brady, 373 U.S. at 87; Napue v. Illinois, 360 U.S. 264, 269 (1959). No distinction exists between exculpatory and impeachment evidence. Kyles v. Whitley, 514 U.S. 419, 434 (1995). Where there is a "reasonable probability" that the jury would have decided the case differently, such that the failure to disclose evidence "undermines the outcome of the trial," the materiality requirement is satisfied. Id.
(c) "No Adverse Inference" Jury Instruction
The Fifth Amendment right against compulsory self-incrimination guarantees that a defendant will receive a "no adverse inference" jury instruction in regard to his silence at trial upon his timely request.See Carter v. Kentucky, 450 U.S. 288, 300 (1981); United States v. Brand, 80 F.3d 560, 567 (1st Cir. 1996). Such an instruction checks a jury's temptation to "roam at large with only its untutored instincts to guide it, to draw from the defendant's silence broad inferences of guilt." Carter, 450 U.S. at 301. Although the Constitution does not require the use of specific wording for such an instruction, nor adoption of the exact phraseology requested by the defendant, the trial judge has an affirmative duty to "minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify." Id. at 305 (holding trial judge must use jury instruction to ensure jury does not negatively speculate about defendant's silence); Brand, 80 F.3d at 567 (holding no exact phraseology required so long as instruction satisfies Carter obligation to minimize danger of speculation). Once a defendant raises a "no adverse inference" request, the constitutional guarantees "require more than instruction on the right not to testify and to be presumed innocent until proven guilty." See Brand, 80 F.3d at 567.
IV. Application of Legal Principles to This Case
(a) Failure to Disclose Inducements
Any claim about a trial error regarding the inducements issue was waived by the petitioner's failure to raise the issue either at the trial (when the witnesses testified) or on direct appeal. The petitioner claims there is an excusing "cause" for that procedural default in the Commonwealth's concealment of pertinent facts that would have led him to discover the error in time to present it. However, that argument is doomed by two factual findings by the state courts. First, after an evidentiary hearing, the Superior Court judge who denied the petitioner's motion for a new trial concluded that the petitioner's counsel made a deliberate choice not to cross-examine the witnesses in question aggressively about inducements, because to have done so would have opened the possibility that harmful information might be elicited by the Commonwealth in response. Moreover, the SJC single justice noted that, in any event, the details that the petitioner says were late in coming had been disclosed in time to be included in the direct appeal but were not. The single justice concluded the claim was not "new," and thus denied further review of the denial of a new trial. See Simpson, 175 F.3d at 207 ("the denial of the § 33E gatekeeper petition . . . is a finding by the SJC of procedural default on the part of the petitioner"). These factual findings are presumed to be correct in the absence of clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). The petitioner points to no such evidence. On the contrary, the state judges' findings are bolstered by portions of the transcript of the petitioner's first trial, pointed out by the respondent, that convincingly demonstrate that defense counsel were well aware of the scope of protection and support provided to the witnesses by the Commonwealth, even if they did not know the exact dollar amount of the cost of such protection and support. The petitioner has not shown any excusable "cause" for the procedural default with respect to this issue.
Nor is there a reason to conclude that there was a "fundamental miscarriage of justice" in the case. "[For habeas purposes the federal 'fundamental miscarriage of justice' standard means that petitioner must establish actual innocence." Simpson, 175 F.3d at 210. He has not done so. He had a full opportunity to impeach the witnesses by bringing to the attention of the jury the possibility that their testimony was influenced by the protection and support so as to be favorable to the Commonwealth. The jury's verdict was amply supported by the evidence at the trial.
(b) "No Adverse Inference" Instruction
The petitioner's claim that the trial judge erred in failing to give an adequate "no adverse inference" instruction was also procedurally defaulted by his failure to make an objection to the judge's formulation at trial. The judge had indicated that he would give such a charge, and he did instruct the jury that a defendant had an "absolute" right to remain passive and require the Commonwealth to prove its case on the evidence actually produced at trial. While the judge's instruction may not have been the best way to fulfill the obligation imposed by the Carter opinion, and could have more directly conveyed a "no adverse inference" instruction, any error could have been corrected by a timely objection. Under Massachusetts law, failure to make a timely objection to the wording of an instruction precludes consideration of the issue on direct appeal. See Commonwealth v. Keegan, 511 N.E.2d 534, 539 (Mass. 1987).
The Supreme Judicial Court's consideration of the matter did not constitute a waiver of the procedural default. See Puleio v. Vose, 830 F.2d 1197, 1200 (1st Cir. 1987) (review by SJC under state "miscarriage of justice" standard does not by itself waive contemporaneous objection rule). Nor was the S.C.'s consideration an application of the federal habeas "miscarriage of justice" standard. See Simpson, 175 F.3d at 210.
The resolution of an issue against the petitioner by reason of the consistent enforcement by the state courts of a procedural rule constitutes an independent and adequate state ground for the conviction, precluding habeas review on the merits by a federal court. See Wainwright v. Sykes, 433 U.S. 72 (1977); Simpson, 175 F.3d at 206. It can be avoided only by a petitioner's showing of "cause" and "prejudice." Here, the petitioner cannot point to any "cause" for the default that is sufficient to open the way to review of the issue on the merits. For all that appears, it might be that the petitioner's counsel was himself content with the instruction as given for tactical reasons. It might also be that the failure to object was an oversight. In neither case would there be sufficient "cause" for the omission. See Murray, 477 U.S. at 488;Burks, 55 F.3d at 711.
In addition to the defendant's request for instructions no. 18, referred to in the colloquy between counsel and the court, the record here also contains a handwritten request as follows:
The defendant requests that any instruction contemplated by the Court concerning the defendant's failure to take the witness stand and testify not be couched in terms of 'election' and reference to 'the Constitution' but rather emphasize the Commonwealth's burden of proof on all elements of the charges beyond a reasonable doubt and that the burden has been left there.See Appendix to Petition, item 7.
The judge may well have taken this additional request as a modification of the prior one, and he may have thought he was accommodating the petitioner's request by phrasing the instruction as he did.
Finally, as noted, habeas review might be appropriate upon a showing by the petitioner of a basis for concluding that there had been a "substantial miscarriage of justice," but there is no such showing.
V. Conclusion
For the foregoing reasons, the petition is without merit, and the writ of habeas corpus is DENIED.
It is SO ORDERED.