Frank Grace v. Fred Butterworth, Etc. , 635 F.2d 1 ( 1980 )

COFFIN, Chief Judge.

Appellants, Frank and Ross Grace, were tried together in 1974 in Massachusetts Superior Court for the murder of Marvin Morgan. The government’s case depended largely on the testimony of two eyewitnesses who identified the Graces as the victim’s assailants. The appellants each proffered an alibi defense.¹ The jury returned guilty verdicts of first degree murder for Frank Grace and second degree murder for his brother Ross, and the trial judge sentenced both to life in prison.

This appeal from the district court’s denial of appellants’ petitions for habeas corpus is the latest in a series of attempts to obtain relief from these convictions in both the state and federal courts. Appellants initially challenged their convictions on direct appeal to the Massachusetts Supreme Judicial Court. While that appeal was pending, they filed a motion for new trial on the basis of newly discovered evidence that they claimed would corroborate their alibis. The trial judge, concluding that the “new” evidence was available at the time of trial and was merely cumulative, denied the motions. The Supreme Judicial Court consolidated the appeals from the convictions and from the denials of the new trial motions and affirmed the trial court on both. Appellants then sought relief in the federal district court in Massachusetts pursuant to 28 U.S.C. § 2254. The district court dismissed their habeas corpus petitions on March 27,1978, and we affirmed that order, Grace v. Butterworth, 586 F.2d 878 (1st Cir. 1978).

While appellants’ application for habeas corpus was pending in the district court, they filed a second motion for new trial in the Supreme Judicial Court. They argued in their new motion that the trial judge had denied them due process by improperly charging the jury with respect to reasonable doubt and punishment under various degrees of murder. The court denied this motion, and on September 29, 1978, the Supreme Judicial Court affirmed, Commonwealth v. Grace,-Mass.-, 381 N.E.2d 139 (1978). Appellants subsequently filed a second petition for habeas corpus, which was also denied by the district court on July 24, 1979.

In this appeal, we are concerned solely with the appellants’ challenge to the trial court’s jury instructions. Appellants point to three aspects of the charge that they regard as prejudicial: the judge’s discussion of the different parole consequences of convictions for first and second degree murder, the judge’s definition of reasonable doubt in terms of “serious unanswered questions”, and the judge’s explanation of reasonable doubt by means of analogies to important decisions in ordinary life.²

Appellants’ first argument concerns a case, Commonwealth v. Ferreira, 373 Mass. 116, 364 N.E.2d 1264 (1977), decided by the Supreme Judicial Court after it had affirmed the appellants’ conviction and the denial of their first new trial motion. In Ferreira, the court reversed a murder conviction and ordered a new trial because of the trial judge’s jury instructions regarding reasonable doubt and probable cause, which were substantially identical to those given at appellants’ trial. Appellants argue that it was constitutional error for the Supreme Judicial Court to deny their motion for new trial submitted one month after Ferreira was decided. Recognizing that a state court’s misapplication of its own law generally does not raise a constitutional claim cognizable in a federal habeas corpus proceeding, Beck v. Washington, 369 U.S. 541, 554, 82 S.Ct. 955, 963, 8 L.Ed.2d 98 (1969), appellants argue that the Supreme Judicial Court’s denial of a new trial was “arbitrary and capricious”, thus constituting invidious discrimination proscribed by the fourteenth amendment.

Since Ferreira was decided after appellants’ trial and conviction, their argument proceeds from the premise that the Supreme Judicial Court was obligated to apply that decision retroactively. From this starting point they argue that the court made a series of specious distinctions between the two cases that amounted to an arbitrary denial of their right to retroactive application of Ferreira. We need not weigh the merits of the court’s attempts to distinguish the two cases, however, since we find the procedural grounds on which the Supreme Judicial Court based its decision sufficient to dispose of this issue.

As its first ground for affirming the trial court’s denial of a new trial, the Supreme Judicial Court stated:

“We note that trial counsel took no exception to the reasonable doubt portion of the charge and that experienced appellate counsel failed to brief or argue the correctness of the charge on the first appeal. ‘It has been the unbroken practice both under the statute and at common law respecting motions for new trial not to examine anew the original trial for the detection of errors which might have been raised by exceptions taken at the trial.’ Commonwealth v. McLaughlin, 364 Mass. 211, 229, 303 N.E.2d 338, 350 (1973) . . . .” Commonwealth v. Grace, supra - Mass, at -, 381 N.E.2d at 140.

Appellants argue that the court acted arbitrarily in imposing a procedural default against them, since in Ferreira no exception had been taken to the instructions, yet the court exercised its discretion to consider the issue. This argument is without merit. The factors that may influence a state court to relax its procedural requirements in order to establish a principle of law for future cases do not require that court to waive those requirements when a party seeks retroactive application of a decision. In Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), the Court faced the argument that retroactive application of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), would impose an undue burden on the administration of state judicial systems. In rejecting this argument, Justice White noted: “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.” 432 U.S. at 244 n.8, 97 S.Ct. at 2345-2346 n.8. The Supreme Judicial Court permissibly applied state procedural law by finding such a waiver in this case.

Appellants argue further that, even if Ferreira had never been decided, the instructions given by the trial judge would require a new trial as a matter of federal constitutional law. The district court found a basis in federal law for rejecting each of the three elements of the charge that appellants point to as reversible error. We will consider these in turn.

With respect to appellants’ assertion of error in the trial judge’s mention of punishment in his jury charge, the district court noted the finding of the Supreme Judicial Court that failure both to assign this instruction as error and to brief the question on appeal constituted a procedural default under Massachusetts law and applied the rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Under Sykes, a procedural default precludes habe-as corpus review unless the petitioner can demonstrate both “prejudice” resulting from the trial court’s ruling and “cause” for his failure to comply with state procedures. Id. at 87, 95 S.Ct. at 2506. In applying the Sykes test, the district judge concluded that appellants had met neither of these tests.

The Supreme Court did not define either of the crucial terms in Sykes, and this circuit has yet to put a definitive gloss on the meaning of “cause”. The district court, however, relied on the definition applied by the Sixth Circuit in Canary v. Bland, 583 F.2d 887, 894 (6th Cir. 1978) (Merrit, J., concurring): ‘“[Cjause’ means either that state procedural rules are inadequate or were unfairly applied or that neither the defendant nor his attorney could reasonably have been expected to know or appreciate the legal significance of the facts upon which the objection is based.” We have rejected above the assertion that the state procedural rule was improperly or unfairly applied. Appellants also argue that there was no basis in Massachusetts law for reversal on the ground of this type of jury instruction prior to Ferreira. While we are less sanguine than the district court that prior cases had clearly presaged the holding in Ferreira on this point, counsel was, as the district judge noted, aware enough of the possibility of error in this instruction to object to it at trial. We agree that appellants have failed to demonstrate sufficient cause for their failure to press this issue on appeal.³

Moreover, even if the principles of comity underlying the exhaustion requirement did not militate against exercise of the court’s habeas corpus jurisdiction, section 2254 requires that a petitioner establish that he is in custody in violation of the Constitution or laws of the United States. Here, appellants are unable to cite any federal authority for their assertion that mention of punishment in a jury instruction violates the Constitution. Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), on which appellants rely as creating a constitutional principle that introduction of any “extraneous considerations” into the jury’s deliberations constitutes a denial of due process, concerned the introduction of facts not adduced at trial that might dilute the defendant’s presumption of innocence. We do not believe that the judge’s mention of parole consequences had a similar detrimental impact here.

In response to appellants’ second objection to the jury instruction — that the trial judge’s use of analogies in defining reasonable doubt denied them due process — the district court assumed that the claim survived the Sykes test, but held that it failed to raise an error of constitutional magnitude. In Dunn v. Perrin, 570 F.2d 21, 24 (1st Cir. 1978), we noted that “comparison of reasonable doubt in criminal cases with the standard employed by jurors to make even the most significant decisions in their daily lives has been criticized for its tendency to trivialize the constitutionally required burden of proof”. See Scurry v. United States, 120 U.S.App.D.C. 374, 376, 347 F.2d 468, 470 (D.C. Cir. 1965) (equating reasonable doubt with important personal decisions “den[ies] the defendant the benefit of a reasonable doubt”). The instruction in Dunn, however, like the charge in this case, also included reference to “refraining from action (as opposed to something like ‘to be willing to act’)”, which, we noted, “has received widespread approval among the circuits.” 570 F.2d at 25. See, e. g., United States v. Robinson, 546 F.2d 309, 313 (9th Cir. 1976); United States v. Leaphart, 513 F.2d 747, 750 (10th Cir. 1975); United States v. Richardson, 504 F.2d 357, 361 (5th Cir. 1974). We held that the combined effect of these two instructions was not a deprivation of the defendant’s due process right to a reasonable doubt instruction.

Appellants argue that the “important decisions” analogies employed in the instruction in this case were more egregious than the mere mention of decisions pertaining to “the affairs of life” in Dunn. Although we reiterate our concern that use of the type of analogies invoked by the trial judge to help explain the reasonable doubt standard may in fact understate the degree of certainty required for a criminal conviction, we do not believe that because the judge explicitly stated the ordinary-life analogies that were merely implicit in Dunn this aspect of the charge had a significantly more detrimental impact on appellants’ rights. We do not exercise supervisory power over the state courts of Massachusetts; our review of their criminal proceedings is limited to those instances in which “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process”. Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Because we find the jury charge as a whole to have been essentially. sound, we do not believe that this explanation had a sufficiently devastating impact on the trial to amount to a denial of due process.⁴

Finally, with respect to appellants’ assertion that the trial court impermissibly shifted the burden of proof, the district court held that they had failed to satisfy the exhaustion requirements of subsections 2254(b) & (c) because the issue had never been presented to the Massachusetts courts for decision.⁵ Appellants argue that a ha-beas petitioner is not required to exhaust his avenues of state review if his return to state court would be a futile exercise. We agree that an attempt to secure a new trial in state court on this issue would be futile; the Massachusetts courts would certainly apply their contemporaneous objection rule to bar consideration of the issue. See Commonwealth v. Grace, supra, - Mass, at -, 381 N.E.2d at 140. The rule of Wainwright v. Sykes, supra, would then preclude habeas corpus review of this question, since appellants have offered no “cause” for their failure to object to this aspect of the charge at trial.

Although the district court did not address the merits of this claim, we see no error in this portion of the trial court’s instructions. In Dunn v. Perrin, supra, which appellants cite as striking down a similar instruction, the trial judge had defined reasonable doubt as “such a strong and abiding conviction as still remains after careful consideration of all facts and arguments.” 570 F.2d at 23-24. We noted that this instruction imposed on the defendant the burden of establishing doubt in the jurors’ minds. Id. at 24. In this case, in contrast, the trial judge said:

“If after evaluating the evidence in your minds, if you have any serious unanswered questions about the guilt of any defendant of a crime with which he is charged, then he must be given the benefit of the doubt and acquitted.”

This instruction is vastly different from that in Dunn, which in effect equated reasonable doubt with a “strong and abiding conviction”. Here the judge’s explanation did not refer to the function of defendants’ evidence and, when viewed in light of the entire charge, did not imply that they had the burden of establishing that degree of doubt the judge was attempting to define. See Tsoumas v. New Hampshire, 611 F.2d 412 (1st Cir. 1980).

Affirmed.

1 . The facts are more fully set out in the Supreme Judicial Court’s opinions affirming the convictions. Commonwealth v. Grace, 370 Mass. 746, 352 N.E.2d 175 (1976); Commonwealth v. Grace, 370 Mass. 759, 352 N.E.2d 183 (1976).

2 . The trial judge defined reasonable doubt as follows:

“ ‘Beyond a reasonable doubt’ does not mean that the Commonwealth has to prove a person’s guilt to an absolute or mathematical certainty. There will hardly ever be a case heard by a jury that is so open and shut that there is no possibility of the person being innocent. That is not what we mean.

“What we mean, rather, is that you have to be sure, after weighing the evidence, after discussing the testimony that you have heard amongst yourselves, after determining what part, all, part or none, of any witness’s story you are going to believe. After drawing the inferences that you think are reasonable from the evidence that you believe, it means that you must be sure to a moral certainty that the defendant is guilty of the crimes, as I will explain them.

“If after evaluating the evidence in your minds, if you have any serious unanswered questions about the guilt of any defendant of a crime with which he is charged, then he must be given the benefit of that doubt and acquitted.”

Following this instruction, he offered the following analogy:

“Now, I said you have to be sure. What we mean is that you have to be as sure as you would want to and probably have been when in your own lives you have had an important economic or social decision that you have had to make effecting [sic] your own personal lives.

' “We all know that when we have to make that kind of a decision, that we can’t be absolutely sure we are doing the right thing. But unless after weighing all the pros and cons we come to the conclusion that we are morally sure we are doing the right thing, then we don’t act.

“For example, in your own lives at some time or other you may have had to make a decision whether to quit school, .to get a job or to go on with your education; or whether to get married or stay single; or whether to stay married or get a divorce; whether to buy a house or continue to rent; or whether to pick up and move to another location and leave your friends for the offer of a better job.

“Now, whenever you have had to make that type of a decision, you weigh the pros and cons carefully. And unless you are sure to a moral certainty that you are doing the right'thing, you don’t act. You don’t make the change. It is that type of sureness that the law means by the expression ‘beyond a reasonable doubt.’ ”

With respect to the differences between conviction for first and second degree murder, the judge said:

“For first degree murder, the sentence is life in prison; and that person is not eligible for parole. He stays there until and unless pardoned by the Governor and the Council.

“For second degree murder, the punishment is life in prison; and he is eligible — I don’t say that he will be, but he is eligible for parole in 15 years.”

3 . We note that the Sykes Court, in creating a stricter standard than the Court had applied in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), did not explicitly overrule that case. 433 U.S. at 88 n.12, 97 S.Ct. at 2507. Sykes involved failure to object at trial, while Fay concerned alleged errors that had been preserved by objection at trial but had not been raised on appeal. The circuits have split over whether the Fay “knowing-and-deliberate-waiver” rule is still applicable to objections taken at trial but not pressed on appeal. Compare Evans v. Maggio, 557 F.2d 430 (5th Cir. 1977), with Ferguson v. Boyd, 566 F.2d 873 (4th Cir. 1977). Since appellants have not argued that Fay applies to this issue and have addressed only the Sykes “cause and prejudice” test and since we find an alternative ground for affirming the district court on this point, we do not take sides in the controversy over the continuing vitality of Fay.

4 . Since we agree with the district court’s conclusion on the merits of this claim, we do not decide whether the lack of any state court precedent constitutes sufficient “cause” for a defendant’s failure to object to a charge that is later held to be reversible error in a retroactively applicable decision. See Frazier v. Weather-holtz, 572 F.2d 994 (4th Cir. 1978).

5 . Indeed, appellants did not object to this portion of the judge’s instructions at trial, nor did they raise the issue on direct appeal or in either of their motions for new trial or the appeals therefrom.