James McGrath v. Douglas Vinzant

528 F.2d 681
CourtCourt of Appeals for the First Circuit
DecidedJune 1, 1976
Docket75--1282
StatusPublished
Cited by21 cases

This text of 528 F.2d 681 (James McGrath v. Douglas Vinzant) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James McGrath v. Douglas Vinzant, 528 F.2d 681 (1st Cir. 1976).

Opinions

LEVIN H. CAMPBELL, Circuit Judge.

Appellant was tried and convicted in the Massachusetts Superior Court of rape, kidnapping and assault with a dangerous weapon, and his conviction was affirmed by the Supreme Judicial Court. Commonwealth v. McGrath, 1973 Mass. A.S. 1387, 303 N.E.2d 108 (1973). He then brought this petition for habeas corpus, from the denial of which he now appeals. The single question presented is whether his rights under the sixth and fourteenth amendments to the Constitution were violated when, during the state trial, the judge refused to order the rape victim, then on the witness stand, to reveal her current home address, to which she had moved shortly after she had been attacked.

The victim, a Miss Linda Perry, was called by the state. Apart from her address since the incident1 (which occurred four months before the trial) her identity and associations were rather fully revealed. She testified that she had grown up in South Boston, had one sibling, a 13 year old brother, and was 22 years old; that at the time of the incident she had been living alone in a one bedroom apartment in a highrise building at 75 St. Alphonsus Street, Boston, near the Mission Hill Church; and that she had then been employed by Business Equipment Corporation, 100 Shawmut Avenue, Boston, a firm for which she had worked as a secretary to three salesmen for a year and a half. She was presently working as a private secretary at 294 Washington Street, Boston, with an insurance and real estate firm known as Driscoll Pearce.

Concerning the incident, Miss Perry testified that she had gone from her place of employment at 5 p. m. to the nearby parking garage where she had left the car which she drove to work. It was after dark, and there was no illumination inside. As she was approaching the car she was suddenly confronted by the petitioner, a stranger, who emerged from the dark holding a pistol. He forced her into her car with him, and raped her. After raping her, he would not let her leave the car, saying he was afraid that she would tell the police. Miss Perry testified that she kept talking, hoping that she would not be harmed or killed. Several hours later police officers (who also testified at the trial) noticed the occupied parked car in the then-deserted garage, and arrested defendant after observing the pistol on the car floor. The pistol, a fully operable .38, was loaded with six cartridges. A search of petitioner’s person revealed 14 other .38 cartridges.

Petitioner, although he did not take the stand or present other evidence, was vigorously and competently represented by his present counsel. Hearings outside the jury were held on the question of fresh complaint and on search and seizure; numerous exceptions were taken to rulings of the court. The cross-examination of Miss Perry and of the medical and police witnesses was searching. The trial lasted for several days.

The defense’s unsuccessful effort to elicit Miss Perry’s current address arose at the beginning of its cross-examination:

“Q. At the time this incident happened, you were living at 75 Alphonsus?
A. St. Alphonsus Street.
Q. Where are you living now?
MR. ZALKIND: I pray your Hon- or’s judgment.
[683]*683THE COURT: Excluded.
MR. SKEELS: Note my exception.
THE COURT: You don’t want an address to summons the girl, do you?
MR. SKEELS: I think this would be important.
THE COURT: Do you want the address to summons the girl?
MR. SKEELS: No, because she is on the stand.
THE COURT: All right, I will exclude it.
MR. SKEELS: Note my exception.
THE COURT: Yes.”

There were no further efforts to elicit her current address,2 and it remains unknown. What light, if any, the address would have shed on any of the proceedings, or on Miss Perry’s character and credibility, likewise remains unknown.

Petitioner rests his claim of constitutional error on Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), and Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). In Smith v. Illinois, a government undercover agent, as here the principal witness against the defendant, was permitted to testify without giving either his actual name or his address. In reversing, the Court said, 390 U.S. at 131, 88 S.Ct. at 750,

“[W]hen the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ [see Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)] through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.”

The Smith Court quoted from Alford v. United States, supra, a case in which a government witness’ residence (apparently a prison) had been withheld over objection, as follows:

“ . . . The question ‘Where do you live?’ was not only an appropriate preliminary to the cross-examination of the witness, but on its face, without any such declaration of purpose as was made by counsel here, was an essential step in identifying the witness with his environment, to which cross-examination may always be directed. . .”

390 U.S. at 132, 88 S.Ct. at 750.

In the present case, the Massachusetts Supreme Judicial Court cited Smith and Alford as standing for the “general rule that, without any obligation to explain the purpose of his inquiry, a defendant has a constitutional right ... to ask a prosecution witness to disclose his present place of residence.” Commonwealth v. McGrath, 303 N.E.2d at 113. It felt, however, that the present case was within a well-recognized exception, arising when “consideration of the safety of the witness might justify nondisclosure of his present address.” Id.; Smith v. Illinois, 390 U.S. at 133-34, 88 S.Ct. 748 (White & Marshall, JJ., concurring). See, e. g., United States v. Alston, 460 F.2d 48 (5th Cir.), cert. denied, 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122 (1972); United States v. Saletko, 452 F.2d 193 (7th Cir.), cert. denied, 405 U.S. 1040, 92 S.Ct. 1311, 31 L.Ed.2d 581 (1971). Though frankly troubled by the failure of the prosecution to have shown “an actual threat to the witness,”3 303 [684]*684N.E.2d at 114

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Bluebook (online)
528 F.2d 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-mcgrath-v-douglas-vinzant-ca1-1976.