Fowler v. Warden

Opinion

USCA1 Opinion

February 15, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1668 

                                HERBERT A. FOWLER, II,

                                Petitioner, Appellant,

                                          v.

                         WARDEN, NEW HAMPSHIRE STATE PRISON,

                                Respondent, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Martin F. Loughlin, Senior U.S. District Judge]
                                          __________________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
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                         Torruella and Selya, Circuit Judges.
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                                 ____________________

            Jeffrey  R.  Howard,  Attorney  General,   and  Mark  D.  Attorri,
            ___________________                             _________________
        Assistant Attorney General, on brief for appellee.

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Per Curiam.  Petitioner Herbert Fowler is appealing
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            the district court's  order denying his petition for  writ of

            habeas  corpus.    After  reviewing   the  record  and  trial

            transcripts,  we  have  concluded  that  the  district  court

            correctly determined that  there are no grounds  for granting

            Fowler's request for relief, and so we affirm.  

                      Fowler first claims  that the trial court  erred by

            permitting the state  to pose on re-direct  certain questions

            to Sergeant  James Barthelmes,  the state  police officer  in

            charge  of  the  crime scene.    The  state asked  Barthelmes

            whether  defense  counsel  had  asked  him  to  make  certain

            measurements  or undertake certain  studies of evidence found

            at  the  murder scene.    Fowler alleges  that  the re-direct

            examination violated his right to remain silent and suggested

            to  the jury  that he had  a duty  to produce evidence.   The

            transcript  shows  that, during  the  cross-examination which

            preceded the state's re-direct, defense counsel had attempted

            to   show   that  Barthelmes   should  have   performed  such

            measurements  or  studies.    On  re-direct,  the  prosecutor

            responded by  trying to  show that, if  such measurements  or

            studies had been  significant, the  defense could have  asked

            the police to undertake them itself.  

                      We have no doubt that  the jury was not confused as

            to who bore  the burden of proof in this murder trial.  After

            the  court gave preliminary instructions  to the jury pool on

            the  state's  burden of  proof,  each juror  was individually

            voir-dired  as to  his or  her understanding of  the relevant

            legal  standards.   Defense counsel essentially  queried each

juror whether  he or  she understood that  the defendant  was

            presumed innocent, that the state  bore the burden of proving

            the defendant's guilt beyond a reasonable doubt, and that the

            defense  had  no obligation  to  testify  or to  present  any

            evidence   on  his  own  behalf,  and  each  juror  responded

            affirmatively.    Moreover, during  his  cross-examination of

            Barthelmes,  which preceded  the  state's re-direct,  defense

            counsel had responded to Sergeant Barthelmes's statement that

            defense  counsel or  anyone  else  could  have  obtained  the

            measurements  from him by reminding Barthelmes (and hence the

            jury) that "Sergeant, I don't have to do anything."1  

                      Thus, the  prosecutor's attempt  to  show that  the

            defense  had not sought the measurements or studies responded

            to defense counsel's own  suggestions that those measurements

            or studies should  have been made, and the  jury was unlikely

            to  have understood from  his questioning of  Barthelmes that

            the  defense bore the  burden of proving  Fowler's innocence.

            The prosecutor  confined his  questions on  re-direct to  the

            specific  suggestions  for   investigation  made  by  defense

            counsel  during  his  cross-examination,  made  no   explicit

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            1.  We also  note that, in his closing, the defense commented
            that the jury  was "well aware" of the  respective burdens of
            the  parties,  and   reminded  the  jury  members   of  their
            statements on  voir  dire  that  they would  not  expect  the
            defense  to present  evidence  and  would  not  draw  adverse
            inferences  from Fowler's failure  to testify.   The relevant
            legal standards were  also reiterated in the  court's closing
            instructions.

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reference  to defendant's  failure to  testify,  and did  not

            otherwise say  or suggest that  the defense's failure  to ask

            the  police  to  undertake  certain  measurements or  studies

            constituted substantive  evidence of guilt.   Therefore,  the

            prosecutor's  re-direct  examination was  a  lawful and  fair

            response under  United States  v. Robinson,  485 U.S. 25,  32
                            _____________     ________

            (1988)  (the   prosecutor's  comment  had  not   treated  the

            defendant's silence as substantive evidence of guilt, but had

            referred  to defendant's opportunity  to testify at  trial in

            countering  defense counsel's  own suggestion  that defendant

            had not been given  an opportunity to tell his story,  and so

            was  a "fair  response"  to  defendant's  claim and  did  not

            violate the privilege against self-incrimination).

                      Fowler also claims that it was error for  the court

            not to grant his counsel's request for a mistrial or curative

            instructions with respect  to Sergeant Barthelmes's responses

            on re-direct examination.   As we have said,  the state's re-

            direct   examination   of   Barthelmes   was  not   improper.

            Accordingly, it was not error  for the trial court to decline

            to call a mistrial or to issue curative instructions.  

                      Finally, Fowler says that the re-direct examination

            of  Barthelmes, together with certain closing comments by the

            prosecution, shifted the burden of proof to him  and violated

            his  right against self-incrimination.   The  first allegedly

            improper closing  comment  came at  the  very outset  of  the

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prosecutor's closing  argument when the prosecutor  asked the

            jury  whether "the  defense  [has]  presented  you  with  any

            reasonable alternative  to the  one conclusion  that all  the

            evidence in this case points  to?"  Upon objection by defense

            counsel,  the court  reminded  the jury  "that the  burden of

            proof  is always  on  the State  in any  criminal case.   The

            defendant does not  have to prove his innocence  or any other

            fact."  

                      The prosecutor's query  to the jury, in  isolation,

            appears  problematic, but context  is critical in determining

            whether  statements  by  the  prosecution  have  violated   a

            defendant's privilege against self-incrimination.  See United
                                                               ___ ______

            States v.  Lilly, 983 F.2d 300, 307 (1st  Cir. 1992).   Here,
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            the transcript suggests that the prosecutor was responding to

            the defense  counsel's closing  argument, which  had outlined

            seriatim  the  "reasonable  doubts" the  defense  saw  in the

            prosecution's  case against Fowler,  and which  had suggested

            alternative  scenarios, e.g.,  that a  third  party may  have

            murdered  the victims during  a robbery attempt,  or that the

            shotgun shells had been planted at the murder scene after the

            murders.  If  so, the comment  was arguably permissible  fair

            response.  We need not decide that question, however, because

            the trial court promptly instructed the jury as to the burden

            of proof  after the  prosecutor's query to  the jury,  and so

            cured any constitutional impropriety in his question.  Lilly,
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supra,  983 F.2d at 308 (prompt curative instruction from the
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            court  may be a  "satisfactory antidote" to  an impermissible

            comment by the prosecutor).

                      The second allegedly  improper closing statement by

            the prosecutor  came when  the  prosecutor addressed  defense

            counsel's  specific criticisms  of Roger  Klose,  the state's

            expert witness who had linked the shotgun shells found at the

            murder scene with  Fowler's shotgun.  The  prosecutor pointed

            to one of  the defense's arguments -- that  Klose should have

            brought photographs showing that marks on the shells found at

            the scene  matched marks on  shells fired from  Fowler's gun.

            After  explaining why photographs  would not have  helped the

            jury,  the  prosecutor  said:   "That's  the  extent  of  the

            defense's  attack on  Roger Klose's  conclusions  and it's  a

            pretty  sorry effort.  The defense has done nothing to try to

            call into  question or to demonstrate  -- ."  At  that point,

            defense  counsel  objected,  but  the  court   permitted  the

            prosecutor to  continue.   The prosecutor  then finished  his

            thought, commenting that  "[t]he defense has done  nothing to

            show that Roger Klose's opinions are anything other than what

            they purport to be; valid, accurate conclusions, drawn on the

            basis  of training,  experience and  expertise."   Thus,  the

            context makes clear  that no constitutional impropriety  took

            place.    The  prosecutor  was  arguing  that  the  defense's

            criticism  of the state's  expert witness had  not undermined

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the  conclusions reached by the expert; he was not attempting

            to suggest that the defense  had failed in some obligation to

            present evidence  of  Fowler's innocence.   Accordingly,  the

            prosecutor's comments were  a fair response to  the defense's

            specific suggestion of weakness in the expert's testimony.

                      Because we  find no  merit in  Fowler's claims,  we

            need  not  consider  the state's  alternative  argument  that

            Fowler has brought his habeas claims too late.

                      Affirmed.
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