Amirault v. Fair

Opinion

USCA1 Opinion

July 8, 1992        UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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No. 91-2308

                                 GERALD A. AMIRAULT,

                                Petitioner, Appellant,

                                          v.

                                   MICHAEL V. FAIR,

                                Respondent, Appellee.

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               APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
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                                        Before

                                 Selya, Circuit Judge,
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                             Lay,* Senior Circuit Judge,
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                          and O'Scannlain,** Circuit Judge.
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            Frank  Mondano with whom  Juliane Balliro  and Balliro, Mondano, &
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        Balliro, P.C. were on brief for petitioner.
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            Pamela  L.  Hunt, Assistant  Attorney  General,  with  whom  Scott
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        Harshbarger, Attorney General, was on brief for respondent.
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        *  Of the Eighth Circuit, sitting by designation.
        ** Of the Ninth Circuit, sitting by designation.

Per  Curiam.    Gerald   Amirault  brings  this  habeas
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          petition challenging  his state court conviction  on seven counts

          of indecent assault and battery  of a child, and on eight  counts

          of rape  of a child.   Amirault claims that a  juror's failure to

          disclose a  material fact  during voir dire  questioning violated

          his  Sixth Amendment right to an impartial jury and that improper

          remarks made  by the prosecutor denied his right to a fair trial.

          The  federal district court denied Amirault's petition for a writ

          of habeas corpus.  We affirm.

                                   Juror Misconduct
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                    Two days  after the  jury reached its  verdict, defense

          counsel  received information that one  of the jurors  had been a

          rape  victim forty years earlier.  Although the jurors were asked

          on voir dire if they or any of their family members had ever been

          involved  in a civil or criminal case, the juror failed to inform

          the court that when she was fourteen years old she was raped by a

          neighbor,  brought  charges against  him,  and  testified at  his

          trial.   The  man she  accused of  raping  her was  convicted and

          served a term of imprisonment for the crime.

                    When   defense  counsel  brought  this  matter  to  the

          attention  of   the  trial  court,  the   court  granted  counsel

          permission to examine  the juror's voir dire responses, conduct a

          private  investigation into  the allegations,  and examine  state

          criminal  records  pertaining  to  the  1946  rape.    The  court

          ultimately conducted an evidentiary hearing to examine the juror.

          While the court conducted  its own inquiry of the  juror, it also

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provided both parties the opportunity to question her.  The juror

          testified that she had  no memory of the rape, but suggested that

          if it had happened it must have been "over forty years ago."  She

          later  admitted that something had happened to her as a child but

          claimed to have no memory of it.  

                    After  its examination  of the  juror, the  state trial

          court concluded that the  juror had genuinely "blocked"  from her

          conscious mind the  memory of  the event and  that she  therefore

          answered the  voir dire  questions honestly.   The  court further

          concluded that "[b]ased upon  the evidence produced and reviewed,

          it was  and is clear  and settled in  the mind of  the court that

          [the juror] harbored no bias or prejudice against the defendant .

          . .  ."  Commonwealth v.  Amirault, Nos. 85-70 to  80, 85-2653 to
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          2666, slip op. at 6 (Mass. Super. Ct.  Aug. 20, 1986) (memorandum

          of  decision   on  defendant's  motion  for  new  trial).    This

          conclusion was based  in part  on the court's  assessment of  the

          juror's honesty, sincerity and apparent respect for the integrity

          of  the criminal justice system.  Upon determining that the juror

          neither intentionally  deceived the  court nor harbored  any bias

          against the defendant,  the court declined to  permit the defense

          to extend the hearing to include other witnesses.1
                              
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          1During a break in the hearing, a court clerk reported to defense
          counsel a  conversation  he had  had  with the  juror's  counsel.
          According  to the clerk, the  juror's attorney told  him prior to
          the  hearing  that the  juror had  been  the victim  of  a sexual
          assault  but  that  she  could remember  no  details.    Amirault
          challenges  the court's denial of  his request that  the clerk be
          permitted  to testify  at  the hearing  because he  believes such
          testimony  would have served to impeach the juror.  We agree with
          the  district court  that such  testimony would  have  had little

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Amirault concedes  that the trial court  acted properly

          in conducting a post-conviction hearing  to examine the juror and

          that trial  court findings on  questions of juror  partiality are

          presumed correct under  28 U.S.C.   2254(d)  (1988).  He  claims,

          however, that the trial court's findings of  impartiality are not

          fairly supported by the record.  We disagree.

                    A trial court's findings on issues of juror credibility

          and honesty are determinations "peculiarly within a trial judge's

          province" and are accorded great  deference.  Wainwright v. Witt,
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          469  U.S. 412,  428 (1985);  see also  Patton v. Yount,  467 U.S.
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          1025, 1038 (1984).   As the district court found,  the petitioner

          has failed to produce convincing evidence that the  trial court's

          finding that the  juror answered honestly  the questions on  voir

          dire was erroneous.  

                    Although we  read the majority vote  in McDonough Power
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          Equipment v. Greenwood, 464 U.S. 548 (1984), to require a further
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          determination on the question of juror bias even where a juror is

          found to  have been  honest,2   we find that  bias should  not be

          implied  here.   As  the  federal  district court  observed,  the

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          value to the proceeding.

          2See  McDonough, 464  U.S. at  556-57 (Blackmun,  J., concurring)
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          ("[R]egardless  of   whether  a  juror's  answer   is  honest  or
          dishonest,  it   remains  within  a  trial   court's  option,  in
          determining whether  a jury  was  biased, to  order a  post-trial
          hearing at  which the movant  has the opportunity  to demonstrate
          actual bias or, in exceptional  circumstances, that the facts are
          such  that bias is  to be inferred.");  id. at  558 (Brennan, J.,
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          concurring) ("I  therefore cannot agree  with the  Court when  it
          asserts  that a new trial is not warranted whenever a prospective
          juror provides an honest answer to the question posed.").

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situation presented here  of a  juror found to  have blocked  the

          memory of an unrelated  forty-year-old rape does not rise  to the

          level  of  "exceptional"  or  "extreme" circumstances  which  may

          permit a  finding of implied  bias.  See  Smith v. Phillips,  455
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          U.S. 209, 222 (1982) (O'Connor, J., concurring).

                               Prosecutorial Misconduct
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                    Amirault  claims  that  certain  remarks  made  by  the

          prosecutor  violated his right to  a fair trial.   Amirault first

          challenges  a  reference by  the  prosecutor  to his  post-arrest

          silence as a  violation of his Fifth Amendment rights.  See Doyle
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          v. Ohio, 426 U.S. 610 (1976) (exercise  of right to remain silent
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          may not  be used  against defendant at  trial).   In her  closing

          remarks,  the prosecutor told the jury that while the law forbids

          the  state from approaching  the defendant after  his arrest, the

          law does  not prevent  defendants from affirmatively  telling his

          side  of the  case.  We  agree with  the district  court that the

          "fair response" exception to  the rule applies here.   See United
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          States  v. Robinson,  485 U.S.  25 (1988).   The  prosecutor made
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          mention of  Amirault's silence  because defense counsel  had just

          suggested to  the jury  that the  prosecution was  biased against

          Amirault because  no one ever asked  him his side of  the story. 

          We also  find  the  curative instructions  issued  by  the  court

          sufficient. 

                    Amirault also challenges  the prosecutor's reference to

          facts not in  evidence, her expression  of personal opinion  with

          respect  to  a  theory  advanced  by  one  of  Amirault's  expert

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witnesses,  her alleged  suggestion  that the  defendant had  the

          burden of disproving the  allegations, her mischaracterization of

          the  defense  theory,  and  her   suggestion  that  incriminating

          evidence  had been removed from the defendant's home prior to the

          jury's  visit there.  To  prevail on these  claims, Amirault must

          show that the remarks  "so infected the trial with  unfairness as

          to  make  the  resulting conviction  a  denial  of due  process."

          Donnelly v.  DeChristoforo, 416  U.S. 637, 643  (1974) (level  of
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          review for cases which do not involve prosecutorial remarks which

          "so prejudice[]  a specific right, such as  the privilege against

          compulsory self-incrimination, as  to amount to a  denial of that

          right.");  see also Smith v.  Phillips, 455 U.S.  209, 219 (1982)
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          ("[T]he touchstone of  due process analysis  in cases of  alleged

          prosecutorial  misconduct is the  fairness of the  trial, not the

          culpability of the prosecutor.").    We find that  petitioner has

          failed to make this showing.   We agree with the district court's

          finding  that these  comments  did  not  rise  to  the  level  of

          constitutional error  and  that the  curative  instructions  were

          sufficient.  

                    We  thus find  no constitutional  error and  affirm the

          district  court's order denying the petition for a writ of habeas

          corpus.

                    Affirmed.
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