Moore v. Ponte

Page 26

186 F.3d 26 (1st Cir. 1999)

ALBERT F. MOORE, JR., Petitioner, v. JOSEPH PONTE, Respondent.

No. 98-1292.

United States Court of Appeals for the First Circuit.

Heard March 2, 1999.

Decided Aug. 2, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] John H. LaChance, by appointment of the Court, with whom Victoria L. Nadel, was on brief, for petitioner.

Gregory I. Massing, Assistant Attorney General, Criminal Bureau, Appellate Division, with whom Scott Harshbarger, Attorney General, was on brief, for respondent.

Before Stahl, Circuit Judge, Magill,^* Senior Circuit Judge, and Lipez, Circuit Judge.

MAGILL, Senior Circuit Judge.

A Massachusetts jury convicted Albert Moore, Jr. of first degree murder on June 18, 1976. The Essex Superior Court sentenced Moore to life imprisonment without parole. On direct appeal, the Supreme Judicial Court of Massachusetts (SJC) affirmed Moore's conviction. See Commonwealth v. Moore (Moore I), 393 N.E.2d 904 (Mass. 1979). In 1988, Moore filed a motion for new trial in state court, alleging that he was denied due process by being forced to sit in a prisoner's dock during trial and that the trial court gave erroneous instructions to the jury on the malice element of first degree murder and the reasonable doubt standard. The court denied Moore's motion for new trial, and the SJC denied Moore's motion for leave to appeal. Moore subsequently filed a petition for writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254, which the district court denied. We affirm.

I. Background

We briefly review the facts adduced at trial concerning the killing of Donald Rimer. A more thorough review of this evidence may be found in the district court's opinion below. See Moore v. Ponte (Moore II), 924 F. Supp. 1281, 1292-93 (D. Mass. 1996).

Donald Rimer was the co-owner and construction supervisor of a project on which Albert Moore, Jr. served as foreman. The evidence at trial showed that Moore disliked Rimer, made numerous derogatory statements about him, and told a friend that he intended to kill him. In the early morning hours of April 14, 1972, Moore told a friend that he was going to kill Rimer and asked to borrow a lug wrench. Moore showed the friend a gun and a key to Rimer's townhouse.

The evidence at trial also showed that Moore went to Rimer's townhouse later that morning and struck Rimer in the head several times with a blunt object while he was sleeping. Five witnesses testified that Moore admitted to them that he had killed Rimer. In addition, police introduced numerous pieces of evidence that linked Moore to the crime.

Moore was indicted for Rimer's murder in January 1976 and was tried before a jury in Essex Superior Court. Before trial commenced, Moore's counsel asked the court if Moore could sit at counsel's table instead of being placed in the prisoner's dock. The SJC described the prisoner's dock as follows:

Most court rooms used for criminal sessions in the Commonwealth are equipped with a dock, a wooden enclosure, usually measuring four or five feet square, in which it has long been customary for the defendant to sit during trial. The dock is open at the top, so that the upper torso of a seated person is visible. The judge, the court clerk, court officers and the jury occupy similar enclosures, the arrangement of which varies from court room to court room. The dock as we know it appears to be a vestige of the English baledock . . . .

Moore I, 393 N.E.2d at 906-07. Moore's counsel stated that he knew of no basis in law for his request, but said that he was bothered by the dock's potential effect on the jury. The judge stated that he would confer with the Sheriff and that counsel's request would depend on security. See id. at 906. The court subsequently denied Moore's request, and Moore sat in the dock throughout trial.

At the close of all evidence, the court instructed the jury on the reasonable doubt standard and the malice element of first degree murder. The instructions on reasonable doubt equated reasonable doubt as doubt for which a good reason could be given, equated reasonable doubt with moral certainty, stated that one is morally certain when he would act on his conviction in matters of the highest importance in his daily affairs, and emphasized that the government's burden of proof was not absolute and warned against applying too high a standard. In its instructions on the malice element, the trial court told the jury that it could presume satisfaction of the malice element if the Commonwealth established that the killing was done without excuse or justification. Moore did not object to these jury instructions at trial.

The jury ultimately found Moore guilty of murder in the first degree, and the court sentenced him to life imprisonment without parole. Moore appealed his conviction to the SJC, challenging, inter alia, his placement in the prisoner's dock. Moore did not challenge the jury instructions on reasonable doubt or malice in his direct appeal. The SJC affirmed Moore's conviction. See id. at 911.

On October 5, 1989, Moore filed a motion for new trial in state court alleging ten trial court errors. Three claims raised in the motion that are relevant to this appeal include: (1) the trial court violated Moore's due process rights by compelling him to sit in the prisoner's dock throughout trial; (2) the jury instructions on the reasonable doubt standard did not properly inform the jury of the Commonwealth's high burden of proving the defendant's guilt; and (3) the jury instructions on malice violated due process by not requiring the Commonwealth to prove this element of the offense. On January 4, 1990, the state trial judge summarily denied Moore's motion for new trial, finding that most of his claims had been previously advanced or were known but not raised in earlier proceedings. The court also stated that Moore's claims appeared to lack merit. In June 1990 Moore requested leave to appeal the decision to the SJC, pursuant to Chapter 278, § 33E of the Massachusetts General Laws. A single justice of the SJC, acting as a "gatekeeper,"¹ denied Moore's request on the grounds that the issues raised in the motion were not new or substantial.

On February 6, 1991, Moore filed a petition for writ of habeas corpus in federal district court raising the same ten trial errors alleged in his motion for new trial before the Massachusetts courts.² The district court initially dismissed all of Moore's claims, except for his prisoner's dock claim, finding that they were procedurally barred by adequate and independent state procedural grounds. In particular, the court held that the SJC gatekeeper's denial of leave to appeal because the issues raised were not new or substantial precluded federal review of the claims. The court appointed an attorney to represent Moore on his prisoner's dock claim, and the case was reassigned to another judge for consideration on the merits.

Moore's appointed counsel moved the court to reconsider the prior order dismissing the jury instructions claims on procedural grounds.³ Moore argued that the SJC gatekeeper's denial of leave to appeal could not preclude federal review of his jury instructions claims. He further argued that the state courts' reliance on Moore's failure to contemporaneously object to the jury instructions could not prevent federal review because Massachusetts courts do not consistently apply that procedural rule. The district court agreed with Moore's arguments and proceeded to analyze Moore's jury instructions claims on the merits. See Moore II, 924 F. Supp. at 1295-98.

On the merits, the district court assumed that the trial court's use of the prisoner's dock and its instructions on malice violated due process, but concluded that both errors were harmless. See id. at 1291-97. In a subsequent order, the court also dismissed Moore's challenge to the jury instructions on reasonable doubt, finding that they were constitutionally sufficient. Moore now appeals from the district court's denial of his petition for writ of habeas corpus.

II. Jury Instructions

Before turning to the merits of Moore's appeal, we first consider the Commonwealth's argument that Moore's jury instructions claims are barred by adequate and independent state procedural grounds.⁴ The Commonwealth contends that the district court erred in holding that Massachusetts courts waive the contemporaneous objection requirement in cases involving challenges to jury instructions on reasonable doubt. The Commonwealth also argues that the district court erred in holding that the SJC gatekeeper's denial of Moore's request for leave to appeal did not bar federal consideration of Moore's challenge to the jury instructions on malice and reasonable doubt. We conclude that an adequate and independent procedural bar precludes federal review of the jury instructions on reasonable doubt, but conclude that no such bar exists for Moore's challenge to the instructions on malice.

A. Applicable Law

When a state court decision rests on a state procedural rule that is independent of the federal question and adequate to support the judgment, a federal court may not review a question of federal law raised in a petition for writ of habeas corpus. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). Considerations of federalism and comity generally prohibit a federal court from ignoring the state's legitimate interests in applying its adequate and independent procedural rules. See id. at 730-31.

"A defendant's failure to object in a timely manner at his state criminal trial may constitute an adequate and independent state ground sufficient to trigger the bar rule so long as the state has a consistently applied contemporaneous objection requirement and the state court has not waived it in the particular case by resting its decision on some other ground." Burks...