Nadworny v. Fair

• Court: Court of Appeals for the First Circuit
• Decided: October 5, 1992
• Docket: 92-1096
• Status: Published

Opinion

USCA1 Opinion

October 5, 1992         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-1096

                                  WILLIAM NADWORNY,

                                Petitioner, Appellant,

                                          v.

                              MICHAEL FAIR, COMMISSIONER
                                   OF CORRECTIONS,

                                Respondent, Appellee.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                         Torruella and Stahl, Circuit Judges,
                                              ______________
                             and Hornby,* District Judge.
                                          ______________

                                 ____________________

            Charles M. Burnim for appellant.
            _________________
            LaDonna J.  Hatton, Assistant  Attorney General,  with whom  Scott
            __________________                                           _____
        Harshbarger, Attorney General, was on brief for appellee.
        ___________

                                 ____________________

____________________

        _____________________

        * Of the District of Maine, sitting by designation.

STAHL, Circuit Judge.   On  July 20, 1982,  approximately four  months
        STAHL, ______________
        after she failed to return  home from an evening visit  with appellant
        William Nadworny,  Lisa Belmonte's  decomposed body  was found  in the
        trunk of Nadworny's  automobile.  Almost two years later,  on June 12,
        1984, a  Massachusetts Superior Court  jury found  Nadworny guilty  of
        second degree murder.  Nadworny unsuccessfully appealed his conviction
        to  the  Massachusetts  Supreme   Judicial  Court.    Commonwealth  v.
                                                              ____________
        Nadworny,  486 N.E.2d  675 (Mass.  1985), cert.  denied, 477  U.S. 904
        ________                                  _____  ______
        (1986).  
            After the United States Supreme Court denied certiorari,  Nadworny
        filed a petition for habeas corpus in the United States District Court
        for the District of  Massachusetts.  The district court  dismissed his
        petition for  failure to  exhaust his post-conviction  state remedies.
        On appeal from that dismissal, we reversed and remanded the case for a
        decision  on the merits.   Nadworny v.  Fair, 872 F.2d  1093 (1st Cir.
                                   ________     ____
        1989).  
            On  April 5, 1991,  after careful  consideration of  the merits of
        Nadworny's  claims,  the district  court  dismissed Nadworny's  habeas
        petition and entered  judgment for the  respondent, Michael Fair,  the
        Commissioner  of Corrections for the  Commonwealth.1  It  is from that
        dismissal that Nadworny now appeals.  Finding no error in the district
        court's decision, we affirm.

        I.  DISCUSSION
        I.  DISCUSSION
        ______________
            In this appeal, Nadworny  asserts the following  four grounds  for
        relief: (1) the district court erred in finding sufficient evidence to
        convict him of second degree  murder; (2) the district court erred  in
        finding no denial of due process in the state trial court's refusal to
        instruct on  the lesser included offense  of involuntary manslaughter;
        (3) the  district court erred in  finding no denial of  due process in
        the  state   trial  court's   exclusion  of  evidence   rebutting  the
        prosecution's  contention that  certain of Nadworny's  statements were
        indicative of his consciousness  of guilt; and (4) the  district court
        erred  in finding  no infringement  upon his  privilege  against self-
        incrimination  in the  state  trial court's  admission  of certain  of
        Nadworny's involuntarily procured statements to the police and certain
        statements contained  in a  handwriting  exemplar.   We address  these
        arguments seriatim.

        A.  Sufficiency of Evidence
        A.  Sufficiency of Evidence
        ___________________________
            Nadworny first contends  that the district  court erred in finding
        a  sufficiency of  evidence in  the record  to convict  him of  second
        degree  murder.   In  essence,  Nadworny asserts  that  his conviction
        cannot stand  because it  rests entirely upon  circumstantial evidence

____________________

             1In its  published opinion,  the district court  delayed entering
        judgment  for respondent until the parties had an opportunity to brief
        more fully  one of the  issues raised  by Nadworny.   See Nadworny  v.
                                                              ___ ________
        Fair, 744  F. Supp.  1194, 1214-15 (D.  Mass. 1990).   After resolving
        ____
        that  issue, the  district court  entered final  judgment in  favor of
        respondent on April 5, 1991.     

and because  the jury rejected the evidentiary  inferences he believes
        were most reasonable.  Nadworny's assertion is meritless.2
            In analyzing a sufficiency of evidence  claim, we must review  the
        evidence as a whole,  including all inferences that may  reasonably be
        drawn  therefrom, in the light  most favorable to  the government, and
        determine  if "any  rational  trier  of  fact  could  have  found  the
                       ___
        essential elements of the crime beyond a reasonable doubt."  Wright v.
                                                                     ______
        West,      U.S.     ,     ,  112 S. Ct. 2482,  2485-86 (1992) (quoting
        ____  ____       ___   ___
        Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original).
        _______    ________
        Further,  "[t]he  evidence  may  be entirely  circumstantial  and  the
        factfinder may choose among reasonable interpretations of it."  United
                                                                        ______
        States v. Plummer, 964 F.2d 1251, 1254 (1st Cir. 1992).  
        ______    _______
            Under  Massachusetts law,  second degree  murder is defined  as an
        unlawful  killing   of  a   human  being  with   malice  aforethought.
        Commonwealth v. Kane,  445 N.E.2d 598, 601 (Mass.  1983); Commonwealth
        ____________    ____                                      ____________
        v. Casale, 408 N.E.2d 841, 845 (Mass. 1980).  The  evidence before the
           ______
        state trial court included the following:3
            1.  The testimony of four witnesses that Belmonte was
            at  Nadworny's  apartment  on  the   evening  of  her
            disappearance.

            2.   The testimony  of three witnesses  that Nadworny
            had  acknowledged that  Belmonte's death  occurred in
            his apartment on the night of her disappearance.

            3.   The testimony of  one witness that  Nadworny had
            informed   him   that  the   Commonwealth's  evidence
            included "blood stains from Lisa's body" found on his
            apartment floor.

            4.  A letter  from Belmonte to Nadworny  making clear
            that she intended to end their relationship, and that
            if she  met with him  again it would only  be for the
            purpose of saying "goodbye."  

            5.   The  testimony of  one  witness who  spoke  with
            Belmonte  on  the  afternoon  of  her  disappearance,
            indicating that, upon  leaving her presence, Belmonte
            said  that she  intended  immediately to  go over  to
            Nadworny's apartment to say  "goodbye" to him and end
            the relationship.

____________________

             2As the facts of this  case are recorded in exhaustive  detail in
        the  opinions  of  the   Massachusetts  Supreme  Judicial  Court,  see
                                                                           ___
        Nadworny,  486 N.E.2d at 677-82,  and the federal  district court, see
        ________                                                           ___
        Nadworny, 744 F. Supp. at 1197-99, we will repeat only those necessary
        ________
        for resolution of this appeal.

             3We must accord  the state court's factual findings a presumption
        of correctness.  28 U.S.C.   2254(d); Hernandez v. New York,     U.S. 
                                              _________    ________  ___
         ,    , 111 S. Ct. 1859, 1869 (1991).
        _  ___

6.   The testimony of one witness  that Nadworny told
            her  that he  "couldn't  bear  it  if  they  [he  and
            Belmonte] broke up." 

            7.   A letter  purportedly from Nadworny  to Belmonte
            stating that he felt "used" by her.

            8.   Evidence suggesting  that Nadworny was  the only
            one with her when she died.

            9.  Evidence tending to show that, in the four months
            between the time Belmonte met  her death and the time
            her body  was discovered  in the trunk  of Nadworny's
            automobile, Nadworny was concealing her body.

            10.  Testimony  that Nadworny had  asked a friend  to
            "alibi" for him.

            11.  Testimony  that Nadworny  had told  inconsistent
            stories  about Belmonte's  condition on  the  day she
            disappeared  and   about   where  she   was   located
            thereafter.

            12.   The testimony  of the pathologist  who examined
            Belmonte's  body indicating  that  it  was  extremely
            unlikely that she had died of natural causes and that
            there was no  evidence of   pills in  her stomach  or
            major trauma to the body. 

We agree  with the district  court that  the sum total  of this

          evidence was sufficient to allow a rational trier of fact to find

          that   Nadworny   unlawfully    killed   Belmonte   with   malice

          aforethought.    Consequently,  we  affirm  its  conclusion  that

          Nadworny's insufficiency claim did not merit habeas relief.

B.  Failure to Instruct on Lesser-Included Offense of Involuntary
          B.  Failure to Instruct on Lesser-Included Offense of Involuntary
          _________________________________________________________________
          Manslaughter
          Manslaughter
          ____________

            Nadworny next  argues that the district court  erred in finding

          no denial  of due process in  the state trial court's  refusal to

          instruct   on  the   lesser  included   offense  of   involuntary

          manslaughter. This claim does not require extended discussion.

In a recent case squarely on point, we held that  a state trial

          court's refusal to  instruct on  a lesser included  offense in  a

          noncapital  case  "rarely,  if  ever, presents  a  constitutional

          question . . . ."   Tata v. Carver,  917 F.2d 670, 672 (1st  Cir.
                              ____    ______

          1990) (quoting Pitts  v. Lockhart,  911 F.2d 109,  112 (8th  Cir.
                         _____     ________

          1990), cert.  denied,     U.S.     , 111 S. Ct. 2896 (1991)).  To
                 _____  ______  ___      ____

          rise to  the level  of a  due process violation,  the refusal  to

          instruct must "threaten[] a  fundamental miscarriage of justice .

          . . ."  Id.  
                  ___

            In Tata, we found that the trial court's refusal to instruct on
               ____

          a  lesser included offense  did not rise  to that level.   Id. at
                                                                     ___

          672-73.  The defendant in that case was convicted under state law

          of trafficking in  one hundred  grams or more  but less than  two

          hundred  grams  of  cocaine.    Id.  at  670-71.    The  evidence
                                          ___

          introduced during the prosecution's case in chief included 111.82

          grams of cocaine which had been  lawfully seized from defendant's

          apartment.  As part of his defense, defendant introduced evidence

          tending to show that he consumed  as much as two grams of cocaine

          a week.

            The  trial  judge  instructed  the   jury  on  the  offense  of

          trafficking in one  hundred grams or more but did not instruct on

          the  lesser  included offense  of  trafficking in  less  than one
                                                             ____  ____

          hundred grams of cocaine.   On appeal, defendant argued  that the

          failure to  so instruct  violated due  process  because the  jury

          could have found the lesser amount by deducting an amount for his

          personal use. Id. at 671.  
                        ___

We  rejected  the  defendant's  argument  in  Tata  on  several
                                                          ____

          grounds.   First, we held  that there was  sufficient evidence in

          the  record  to  show that  the  quantity  of  drugs seized  from

          defendant's  apartment was  unsuitable for  personal consumption.

          Id. at 672.  Second, we held that the requested instruction would
          ___

          have  been  inconsistent with  defendant's  theory  of the  case,

          namely  that he never possessed the cocaine  at all.  Id. at 672-
                                                                ___

          73.    More importantly,  we  questioned  whether an  evidentiary

          predicate for  the requested  instruction even  existed.   Id. at
                                                                     ___

          672.

            Likewise,  in the  instant case,  we find  that the  failure to

          instruct  on  involuntary  manslaughter   did  not  amount  to  a

          "fundamental  miscarriage  of  justice."    After  reviewing  the

          record,  the Massachusetts  Supreme  Judicial  Court,  the  final

          arbiter on  matters of  state law,  found  that "no  view of  the

          evidence,  resolving all  reasonable inferences  in favor  of the

          defendant, . . . permitted  a finding of . . . involuntary  . . .

          manslaughter."   Nadworny, 486 N.E.2d at  687 (citation omitted).
                           ________

          Further, the federal district court, after reading the record  in

          a  light  most  generous   to  Nadworny,  found  the  evidentiary

          predicate for  an involuntary manslaughter  instruction "gossamer

          thin."  Nadworny,  744 F.  Supp. at  1207.   Finally, the  record
                  ________

          reveals  that  even  Nadworny's   trial  counsel  found  such  an

          instruction  unwarranted.   See id.  at 1204 ("As  to involuntary
                                      ___ ___

          manslaughter,  I [Nadworny's  counsel] can't  see how  the Court,

          under the present state of Massachusetts law, could give a charge

          allowing  such  a verdict.  . .  .").   Thus,  Nadworny's present

complaint that the failure to instruct resulted in a "fundamental

          miscarriage of justice" is unpersuasive.

            Accordingly, we agree with the district court's conclusion that

          Nadworny's  due process  rights were  not violated  by  the trial

          court's refusal to give the requested instruction.4

C.  Exclusion of Evidence Rebutting Consciousness of Guilt
          C.  Exclusion of Evidence Rebutting Consciousness of Guilt
          __________________________________________________________

            Nadworny's third argument  is that the district court  erred in

          finding  no  denial of  due process  in  the state  trial court's

          exclusion of  certain admissible evidence.   The state introduced

          evidence  at  trial  that  Nadworny had  made  statements  to  an

          individual  that tended  to show  a consciousness  of guilt.   In

          rebuttal, Nadworny attempted  to put  a witness on  the stand  to

          refute  that implication.  The state trial judge refused to allow

          that testimony.  According  to Nadworny, this refusal constitutes

          reversible error.

            We have  previously made clear, however,  that "[h]abeas review

          does   not   ordinarily   encompass  garden-variety   evidentiary

          rulings."   Palmariello v. Superintendent of  M.C.I. Norfolk, 873
                      ___________    _________________________________

          F.2d 491, 494  (1st Cir. 1989).   To warrant  habeas relief,  the

          allegedly  erroneous exclusion  must be  "so prejudicial  that it
                            
        ____________________

             4Perhaps  recognizing   the  shaky  foundation   upon  which  his
        "fundamental miscarriage  of justice" argument rests,  Nadworny spends
        the bulk of his brief arguing that Tata  was wrongly decided.  We find
                                           ____
        his  arguments on  this question  unpersuasive.  Moreover,  "[w]e have
        held, with a regularity bordering on  the monotonous, that in a multi-
        panel  circuit, newly constituted panels  are, by and  large, bound by
        prior panel decisions  closely [on] point."   Metcalf & Eddy,  Inc. v.
                                                      _____________________
        Puerto  Rico Aqueduct And Sewer  Authority, 945 F.2d  10, 12 (1st Cir.
        __________________________________________
        1991), cert. granted,  60 U.S.L.W. 3482 (U.S.  Mar. 9, 1992)  (No. 91-
               _____ _______
        1010).  

amounts to a denial  of due process."  Fitzgerald  v. Armontrout,
                                                 __________     __________

          963 F.2d 1062, 1064 (8th Cir. 1992), petition for cert. filed,   
                                               ________ ___ _____ _____  __

          U.S.L.W.     (U.S. Aug. 3, 1992) (No. 92-5364).
                   ___

            As pellucidly explained by the district court, Nadworny's claim

          does not merit habeas relief because the  excluded evidence would

          have  rebutted  merely  one aspect  of  the  state's  evidence on

          consciousness of guilt, and that aspect  was itself cumulative.5 

          Thus, even if Nadworny is correct in his assertion that the trial

          judge erred in excluding this evidence, such error would not rise

          to the level of a due process violation.

D.  Admission of  Evidence in Violation of His  Privilege Against
          D.  Admission of  Evidence in Violation of His  Privilege Against
          _________________________________________________________________
          Self-Incrimination
          Self-Incrimination
          __________________

            Nadworny's final argument  is that the district  court erred in

          finding  no  infringement  upon  his  Fifth  Amendment  privilege

          against self-incrimination  in the state  trial court's admission

          of certain  involuntarily procured  statements to the  police and

          certain  statements contained  in  a handwriting  exemplar.6   We

          disagree on both counts.

1.  Nadworny's Telephonic Statements to the Police
            1.  Nadworny's Telephonic Statements to the Police
            __________________________________________________
                            
        ____________________

             5The district court  noted seven other  pieces of evidence  which
        directly  and  forcefully  demonstrated  Nadworny's  consciousness  of
        guilt.  See Nadworny, 744 F. Supp. 1200-01.
                ___ ________

             6Nadworny characterizes  his claim as one brought under the Fifth
        Amendment.   This characterization is, however, technically incorrect.
        As  the state is the alleged wrongdoer, the Fourteenth Amendment's Due
        Process Clause  is the proper hook upon which to hang this claim.  See
                                                                           ___
        Malloy v.  Hogan, 378 U.S. 1, 6-7 (1964) (holding that the Due Process
        ______     _____
        Clause  of the  Fourteenth Amendment  protects individuals  from state
        abridgement   of  their   Fifth  Amendment  privilege   against  self-
        incrimination).  

During  the  evening  of  July  19,  1982,  while  state police

          officers  were  at Nadworny's  parents'  home  as part  of  their

          investigation, Nadworny telephoned  his parents.   After  talking

          with  Nadworny, his  mother handed  the telephone  to one  of the

          officers.   The  officer  identified himself  and asked  Nadworny

          about  Belmonte.   Nadworny replied:  "She overdosed  five months

          ago.  I  don't want to  talk about it."   The officer  continued,

          however, to  question Nadworny about Belmonte's  whereabouts.  In

          response, Nadworny told the officer that he did not want to go to

          jail, that he could not "hack it," that he needed  time to think,

          and that he might contact the officer later.  

            At trial,  the judge allowed  the prosecution to  introduce the

          above statements  during its  case in  chief.7  Nadworny  submits

          that  these statements  amounted  to  an  involuntarily  procured

          confession,  (understandable as "I did it, but I don't want to go

          to jail"), the admission of which entitles him to habeas relief.

            A federal court reviewing  the voluntariness of statements must

          make a  determination independent from  that of the  state court.

          Arizona  v. Fulminante,     U.S.     ,    , 111 S. Ct. 1246, 1252
          _______     __________  ___      ____  ___

          (1991); Miller  v. Fenton, 474 U.S. 104, 112 (1985).  The test is
                  ______     ______

          whether the  totality of circumstances  supports a finding,  by a

          preponderance of  the evidence, that defendant's  statements were

____________________

             7Before  admitting  inculpatory  statements  made by  a  criminal
        defendant,  Massachusetts   courts  must  make  a   finding  that  the
        statements  were   made   voluntarily  beyond   a  reasonable   doubt.
        Commonwealth v. Day,  444 N.E.2d 384, 387 (Mass. 1983).   As a result,
        ____________    ___
        the trial  court admitted  these statements only  after it  determined
        beyond  a reasonable doubt that  the statements were made voluntarily.
        The court also submitted the voluntariness question to the jury, which
        implicitly found the statements voluntary beyond a reasonable doubt.  

"the  product of a free and rational  will."  Fenton, 474 U.S. at
                                                        ______

          110.

            Application  of  these   principles  makes   short  shrift   of

          Nadworny's claim.   Nadworny has  pointed to no  evidence in  the

          record to show  that he lost volitional control or  that his will

          was overborne.8   Moreover, his telephonic  conversation with the

          officer can hardly be described as a setting which was inherently

          coercive.  At any point in this conversation, Nadworny could have

          ended the questioning  simply by  hanging up the  telephone.   We

          agree with the district court's finding that Nadworny made  these

          statements voluntarily.

2.  The Handwriting Exemplar
            2.  The Handwriting Exemplar
            ____________________________

            As  evidence of  motive, the  prosecution introduced  a letter,

          allegedly written by Nadworny  to Belmonte, containing statements

          which tended to show  Nadworny's disappointment and anger  at her

          for  ending their relationship.  This letter was authenticated by

          a  handwriting   expert  whose  testimony  was   based  upon  two

          handwriting exemplars  Nadworny furnished to the state.   Each of

          the   exemplars  contained  a  statement  requiring  Nadworny  to

          indicate whether he was right or left-handed, and whether he used

____________________

             8As  the  only  support  for his  assertion  of  involuntariness,
        Nadworny cites  the officer's statement to him that his family was "in
        back of him and  loved him."  Nadworny characterizes this statement as
        evidence  that the  officer "coaxed,  cajoled, and  intentionally took
        advantage of Nadworny's feelings of isolation, and confusion  . . . ."
        We  agree with the district court's conclusion that, while the officer
        may have  "exerted some subtle psychological  pressure on Nadworny[,]"
        Nadworny,  744 F.  Supp. at  1201, the  officer's behavior was  not so
        ________
        coercive  as  to weaken  Nadworny's  will  and render  his  statements
        involuntary.

his  dominant hand  to  pen  the  exemplar.   Because  Nadworny's

          submissions revealed that he  was right-handed, he maintains that

          the  exemplars were  testimonial and  violative of  his privilege

          against self-incrimination.  

            In essence, Nadworny is arguing  that without knowledge of  his

          right-handedness, the expert could not have identified the letter

          as one written by  him.  The expert's trial  testimony describing

          the process he used  to identify Nadworny's handwriting contained

          no references, however, to left or right-handedness.  Thus, it is

          not clear that Nadworny's argument has any factual support.  

            Moreover, the  prosecution  introduced sufficient  evidence  --

          other than the  letter -- to show that  Nadworny was disturbed by

          Belmonte's decision to end their relationship.  See Nadworny, 486
                                                          ___ ________

          N.E.2d at 684.  As  the letter was cumulative on the  question of

          motive, we  therefore agree with the  district court's conclusion

          that, even if  erroneous, the admission  of this "testimony"  was

          harmless beyond a  reasonable doubt.  See Chapman  v. California,
                                                ___ _______     __________

          386 U.S. 18, 22 (1967).9
                            
        ____________________

             9While  we agree  with the  district court's conclusion  that the
        admission of the exemplars was harmless, we note our disagreement with
        the  reasoning  relied upon  by the  district  court in  reaching that
        conclusion.   The district court  reasoned: "On this  record, there is
        not the  slightest suggestion  that, had Nadworny's  objection to  the
        testimonial aspect  of the exemplars been  sustained, the Commonwealth
        would  have been unable to provide an eyewitness to testify concerning
        which hand Nadworny had used to prepare the exemplars."  Nadworny, 744
                                                                 ________
        F. Supp. at 1203.  The record reveals, however, that the prosecution's
        eyewitness did testify at trial but did not mention Nadworny's left or
        right-handedness.   Thus, it was pure  speculation on the part  of the
        district court to  presume that the  eyewitness would have  remembered
        which hand  Nadworny used  to  write the  exemplars.   In essence,  by
        resting  its harmless error holding  on the lack  of a "suggestion" in
                                                    ____  __ _ ____________
        the  record  that the  Commonwealth would  have  been unable  to prove
                                                              ______  __ _____
        Nadworny's   right-handedness,  the   district   court  relieved   the
        Commonwealth of its burden of proof on the authentication question.

II.  Conclusion
          II.  Conclusion
          _______________

            In sum, we find unpersuasive  Nadworny's four challenges to the

          district  court opinion.    Accordingly, we  affirm the  district

          court's decision not to issue a writ of habeas corpus.

            We affirm.  
            We affirm.
            __________