Opinion
Civil Action No. 00-10413-RWZ
August 28, 2002
MEMORANDUM OF DECISION
On September 13, 1995, petitioner, Sarourt Nom, was convicted of the first degree murder of his wife and unlawful possession of a firearm, and sentenced to life imprisonment. The conviction was affirmed by the Supreme Judicial Court of Massachusetts ("SJC") in November of 1997. Commonwealth v. Nom, 426 Mass. 152, 686 N.E.2d 1017 (1997). After the SJC denied an untimely petition for rehearing in 1998, petitioner filed a motion for a new trial in the Superior Court, pursuant to Mass. R. Crim. P. 30(b), based on ineffective assistance of counsel, which was also denied.
In September 1999, pursuant to M.G.L. c. 278, § 33E, petitioner unsuccessfully sought leave to appeal from the denial of the motion for a new trial. The single justice concluded that petitioner failed to present any new or substantial question worthy of appellate review. On March 6, 2000, petitioner filed this petition for a Writ of Habeas Corpus. Although the original petition contained three claims, petitioner voluntarily withdrew one. The remaining claims allege that petitioner's Fifth Amendment right to counsel was violated when, during interrogation, one of the police officers asked petitioner why he had requested a lawyer, and that his Sixth Amendment right to effective assistance of counsel was violated by trial counsel's failure to object to the judge's erroneous charge on malice and appellate counsel's failure to raise the issue on appeal. Respondents moved to dismiss based on statute of limitations grounds, which I denied on January 22, 2002. However, even though the petition is not subject to dismissal for procedural infirmities, both of the substantive claims fail as a matter of law. The Court considers the petition under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). In relevant part, the AEDPA precludes a federal court from granting habeas corpus relief, unless the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or was based on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). The AEDPA further provides that "a determination of a factual issue made by a state court shall be presumed to be correct," unless petitioner is able to "rebut the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Coombs v. Maine, 202 F.3d 14, 18-19 (1st Cir. 2000). Unless the petitioner can carry this heavy burden, a federal habeas court must credit the state court's findings of fact, whether those findings are made by a state appellate or trial court. Rashad v. Walsh, ___ F.3d ___, 2002 WL 1827288, *5 (1st Cir.).
The facts surrounding the murder and petitioner's allegedly improper interrogation, as determined by the SJC and unrebutted by petitioner, are as follows: On the morning of April 17, 1994, petitioner's wife was found with a fatal gunshot wound to the head in his car. The police contacted petitioner who agreed to come down to the police station. In response to questioning, he initially stated that he had been home the night before, that at some point his wife left with the car, and that he had not seen her or the car since. He then received his Miranda warning and waived all rights thereunder. When one of the officers subsequently requested that his hands be tested for gunshot residue, however, petitioner stated that he wanted an attorney present. At that point all questioning ceased and all police personnel left the room.
A little later Trooper James M. Connolly ("Connolly") reentered and sat down next to petitioner, but did not speak. Petitioner shrugged his shoulders, and Connolly did the same. Then petitioner stated "I admit it," and Connolly asked "what?," to which petitioner responded that he had been with his wife the night before. Inspector John Guilfoyle reentered the room and petitioner repeated what he had told Connolly. At that point Guilfoyle asked petitioner why he wanted an attorney. He replied that he wanted an attorney to witness the gunshot residue test, but further stated that he would continue to speak to the police without an attorney present. In the hours that followed, petitioner gave several and conflicting written statements concerning his involvement in the shooting and was ultimately arrested.
Petitioner now contends that the question "why do you want a lawyer?" violated his Fifth Amendment right to counsel and that the SJC's decision to the contrary was an unreasonable application of Miranda v. Arizona, 384 U.S. 436, 469 (1966) (suspect's right to counsel before questioning must be "scrupulously honored"), and Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (police officers must cease questioning a suspect who has clearly asserted his right to have counsel present during custodial interrogation). A state court decision involves an "unreasonable application" of Supreme Court precedent "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams v. Taylor, 529 U.S. 362, 407-408 (2000). A federal habeas court must ask "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 411.
In light of the facts that the petitioner cooperated with the police officers all morning and only requested a lawyer after they attempted to test his hands for gun residue, and then voluntarily reinitiated conversation with Connolly, the SJC found that the question "why do you want a lawyer?" was not designed, nor reasonably likely, to elicit an incriminating response. Rather, the Court said, it was posed to clarify the ambiguous situation. Based upon these factual findings, which must be afforded deference by this Court, the SJC concluded that petitioner was not prejudiced.
Although the questioning of a suspect's request for an attorney is constitutionally impermissible under ordinary circumstances, the SJC did not unreasonably apply federal law to the facts as it found them in this case. See O'Brien v. DuBois, 145 F.3d 16, 25 (1st Cir. 1998) ("for the writ to issue, a state court decision must be so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes").
With respect to petitioner's Sixth Amendment and integrated Due Process arguments, respondents contend that these claims are procedurally defaulted based on the single justice's denial of the petition for leave to file an appeal from the trial court's denial of his motion for a new trial. In other words, the single justice's conclusion, that petitioner's ineffective assistance and due process claims were neither "new" nor "substantial," as required by G.L. c. 278 § 33E, was based upon petitioner's failure to comply with a Massachusetts procedural requirement. Therefore, respondents argue that the decision constituted an "independent and adequate" state law ground over which this Court has no jurisdiction under the AEDPA. See Coleman v. Thompson, 501 U.S. 722 (1991). Although artfully drawn, respondents' argument need not be addressed at this time. Rather, petitioner's claim fails as a matter of law because the jury instruction in question was not in error, rendering untenable the ineffective assistance claim.
In a memorandum of decision denying petitioner's request for a new trial based on ineffective assistance of counsel, the trial judge analyzed the malice instruction, which petitioner contends shifted the Commonwealth's burden of proving deliberate premeditated murder. In order to prove malice aforethought, the government must prove that the defendant, without justification or excuse, (1) intended to kill the victim or (2) cause the victim grievous bodily harm, or (3) that the defendant engaged in an act which a reasonably prudent person would have known created a plain and strong likelihood that death would follow. Commonwealth v. Grey, 399 Mass. 469, 470, n. 1 (1987). A judge may instruct on all three malice prongs when presented with first degree murder theories based on deliberate premeditation and extreme atrocity or cruelty. Commonwealth v. Diaz, 426 Mass. 548, 553 (1998). If, however, the sole theory presented to the jury is deliberate premeditation, only the first prong applies. Mello v. DiPaulo, 295 F.3d 137, 149 (1st Cir. 2002). Although the "[petitioner] was charged with murder by reason of deliberate premeditation only," the judge instructed the jury on all three malice prongs. Memorandum of Decision and Order on Defendant's Motion For a New Trial, Superior Court Cr. No. 94-86401/86403, (May 27, 1999), p. 2 ("New Trial Memorandum"). It is true that "where only deliberate premeditation is offered to the jury as a basis for murder in the first degree, the inclusion of instructions of second and third prong malice . . . could be confusing without the limiting instruction that only first prong malice supports a deliberate premeditation conviction." Commonwealth v. Jenks, 426 Mass. 582, 585 (1998).
Nonetheless, the trial judge concluded that there was no basis here for finding that this caused a substantial likelihood of a miscarriage of justice. Although he agreed with petitioner that the "instructions on second and third prong malice were better left unsaid," he ruled that the instructions taken as a whole were "proper, concise, and comprehensible" and clearly conveyed to the jury the requirement of finding an intent to kill. New Trial Memorandum, at pp. 3-4. Thus, there was no risk of conviction based on a mental state other than the first prong of malice. Id. Based on a careful review of the record below and a plethora of Massachusetts case precedent on this issue, it is clear that the trial judge's decision that the malice instruction was not given in error, see id. at 3,4, was correct. Therefore, neither trial nor appellate counsel were under any duty to object to its inclusion.
Accordingly, the Petition for Writ of Habeas Corpus is denied. Judgment may be entered for respondents.