Peter W. Makarewicz v. Palmer C. Scafati, Superintendent of The Massachusetts Correctionalinstitution at Walpole, Massachusetts, 438 F.2d 474, 1st Cir. (1971)
Peter W. Makarewicz v. Palmer C. Scafati, Superintendent of The Massachusetts Correctionalinstitution at Walpole, Massachusetts, 438 F.2d 474, 1st Cir. (1971)
2d 474
Before admitting petitioner's confession into evidence at the trial, the judge
conducted an extensive voir dire, during which both sides called witnesses. In
addition, the jury was instructed to consider whether or not the confession was
voluntary. On appeal, the Massachusetts Supreme Judicial Court affirmed the
conviction, ruling inter alia that the confession was admissible. Commonwealth
v. Makarewicz, 333 Mass. 575, 132 N.E.2d 294 (1956). On August 28, 1968,
petitioner filed a petition for a writ of error in the Supreme Judicial Court, again
challenging the admissibility of his confession. In accordance with
Mass.Gen.Laws. ch. 250, 9 and 11 the writ was considered by a single justice
of the court, who denied it. Although entitled to do so under Massachusetts law,
see discussion infra, petitioner did not appeal that decision to the full bench of
the court.1 In May 1969 he filed a petition for habeas corpus in the United
States District Court pursuant to 28 U.S.C. 2254 on the same grounds, viz., that
his conviction had been based on an involuntary confession. No evidentiary
hearing was held; the district court denied the petition on the basis of the trial
transcript. This is an appeal from the decision on the district court.
Respondent contends that petitioner has failed to exhaust his state remedies
because he did not appeal from the denial of his 1968 writ of error. Under
Massachusetts law the denial of a writ of error can be appealed to the full bench
of the Supreme Judicial Court on the grounds that 'the single justice abused his
powers or that his action was arbitrary and unjustifiable.' Commonwealth v.
Sacco, 261 Mass. 12, 17, 158 N.E. 167, 169, cert. denied. 275 U.S. 574, 48
S.Ct. 17, 72 L.Ed. 434 (1927); accord, McGarty v. Commonwealth, 326 Mass.
413, 414-415, 95 N.E.2d 158, 159, cert. denied, 340 U.S. 886, 71 S.Ct. 199, 95
L.Ed. 643 (1950). See generally K. Smith, Massachusetts Practice: Criminal
Practice and Procedure 1244 (1970). In response, petitioner appears to take the
position that under the 'futility doctrine' he had no obligation to seek a writ of
error in the first place. 2 He contends that the writ cannot be used to correct the
trial court's failure to suppress illegal evidence, since that is an issue which
there was a 'legally sufficient opportunity to litigate' at trial. See Aronson v.
Commonwealth, 331 Mass. 599, 602, 121 N.E.2d 669, 671 (1954). Yet the
Supreme Judicial Court has considered suppression of evidence questions on
writ of error in at least two recent decisions. See Gilday v. Commonwealth, 355
Mass. 799, 247 N.E.2d 396 (1969); Richardson v. Commonwealth, 355 Mass.
112, 243 N.E.2d 801, 803 (1969). Where the state court has indicated a
willingness to broaden its traditional remedies in order to reach federal
constitutional claims, petitioner must initially seek relief in that court. Grayson
v. Montgomery, 421 F.2d 1306, 1309-1310 (1st Cir. 1970).
In the instant case, however, petitioner was not obligated to seek a writ of error
since the admissibility of his confession has already been reviewed by the full
bench of the Supreme Judicial Court on direct appeal. Brown v. Allen, 344 U.S.
443, 447-450, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Connor v. Picard, 434 F.2d
673 (1st Cir. 1970); R. Sokol, Federal Habeas Corpus 22.2 (2d ed.1969); Note,
Developments in the Law-- Federal Habeas Corpus, note 2 supra, at 1096. This
is not a case in which, during the period since petitioner's contention was
considered by the state court, the United States Supreme Court has announced a
new legal principle whose applicability must first be considered by the
Massachusetts court. See Sullivan v. Scafati, 428 F.2d 1023, 1024 n. 1 (1st Cir.
1970); cf. Subilosky v. Massachusetts, 412 F.2d 691 (1st Cir. 1969). For these
same reasons petitioner was not obligated to move for a new trial pursuant to
Mass.Gen.Laws ch. 278, 29. And his failure to apply to the United States
Supreme Court for certiorari following the Massachusetts court's affirmance of
his conviction does not bar federal habeas relief now. Fay v. Noia, 372 U.S.
391, 435-438, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Hedberg v. Pitchess,362
F.2d 511 (9th Cir. 1966).
5
Because this case was tried prior to the Supreme Court's decisions in Escobedo
v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), we must
'examine the entire record and make an independent determination of the
ultimate issue of voluntariness.' Davis v. North Carolina, 384 U.S. 737, 741742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966). Because much of the relevant
trial testimony by petitioner and the police was directly contradictory and
because neither the trial court nor the jury made any express findings of fact,
we limit our consideration here to the undisputed facts. Reck v. Pate, 367 U.S.
433, 435, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961); Thomas v. Arizona, 356 U.S.
390, 402-403, 78 S.Ct. 885, 2 L.Ed.2d 863 (1958).
particularly around his groin. The second interrogation was conducted between
3:18 and 3:45 a.m. Petitioner was then allowed to rest for about five hours
during which time he was given a phenobarbital pill supplied to the police by
his father. He confessed shortly after the beginning of the third interrogation,
which began at 9:12 a.m.
7
'Sgt. Bogdanchik. * * * Isn't that a fact you rehearsed that story quite a bit?
10
11
'Sgt. Bogdanchik. Don't clown. This is pretty serious, you know that don't you?
12
'A. Yes.'
13
During the second interrogation, after the police had learned that the benzidin
test showed blood on petitioner's body, they made statements like, 'Something
took place in that house that you got that blood all over you. * * * We are going
to stay here a week, or ten weeks, or ten years until we find out.' But again
petitioner refused to be intimidated. He insisted a blackbird he had killed with
his B-B gun the previous day accounted for the blood.4
14
Petitioner confessed, not under the pressure of threatening remarks, but after he
was confronted with the evidence against him. At the beginning of the third
interrogation he was informed that his fingerprints had been found at the scene
of the crime and that the benzidin test had revealed the presence of blood on his
clothes. He had apparently hidden the dungarees he had worn that evening in
the hamper at his home, but the police found them and brought them to the
station. Immediately after he was shown the blood stains around the fly section
of the dungarees, petitioner confessed. That confession resulted not from
pressure but from the 'inward consciousness * * * of being confronted with
evidence of guilt which (he) could neither deny nor explain.' Stein v. New
York, supra, 346 U.S. at 185, 73 S.Ct. at 1093. See Thomas v. Arizona, supra,
356 U.S. at 400-402, 81 S.Ct. 1541; cf. Haynes v. Washington, 373 U.S. 503,
83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) (petitioner's repeated requests to call his
wife were not granted until he confessed); Lynumn v. Illinois, supra, 372 U.S.
at 534, 83 S.Ct. 917 (confession made as a direct result of police threats to cut
off state financial aid to petitioner's children and to take her children from her).
15
Two factors cited by petitioner must be given some weight in his favor. Once
the police discovered the presence of blood on petitioner's body for which he
had no satisfactory explanation, they did not warn him of his right to remain
silent and his right to counsel. While not determinative in this pre-Escobedo,
pre-Miranda setting, their failure to do so is a significant factor that must be
taken into account. Davis v. North Carolina, supra, 384 U.S. at 740-741, 86
S.Ct. 1761.5 Similarly, although the delay in bringing petitioner before a
magistrate was relatively short, the police had a substantial amount of
circumstantial evidence against him by 8:30 a.m. when the state district court
opened. Questioning petitioner for a third time a 9:12 a.m. prior to bringing him
before the court suggests the possibility of a 'callous attitude' on their part,
Haley v. Ohio, supra, 332 U.S. at 600, 68 S.Ct. 302, and some degree of overzealousness in attempting to obtain a confession. Yet these two factors, without
more, are not sufficient to render petitioner's confession involuntary in view of
our overall analysis of the events that transpired. Finally, petitioner suggests
that the phenobarbital pill6 that he took sometime within the five hours prior to
his confession may have reduced his powers of resistance. Cf. Townsend v.
Sain, 372 U.S. 293, 307-309, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). But the
evidence showed only that petitioner became drowsy for about ten minutes
after taking the pill, and there was no evidence that he took it within the ten
minutes immediately preceding the third interrogation.
16
Affirmed.
On September 5, 1962, petitioner had filed another writ of error challenging his
conviction on grounds other than those raised on direct appeal. That writ was
allowed by the single justice, who then ruled against him on the merits.
Petitioner appealed that ruling to the full bench of the Supreme Judicial Court,
which affirmed the decision of the single justice. Makarewicz v.
Commonwealth, 346 Mass. 478, 194 N.Ed.2d 388 (1963)
See Whippler v. Balkcom, 342 F.2d 388 (5th Cir. 1965); cf. Needel v. Scafati,
412 F.2d 761, 765 (1st Cir.), cert. denied, 396 U.S. 861, 90 S.Ct. 133, 24
L.Ed.2d 113 (1969). See generally Note, Developments in the Law-- Federal
Habeas Corpus, 83 Harv.L.Rev. 1038, 1097-99 (1970)
Respondent takes the position that, because petitioner did not stress this factor
is his appeal before the Supreme Judicial Court, we cannot consider it here.
However, lack of warnings regarding the right to remain silent and the right to
counsel were recognized as relevant to the overall issue of voluntariness long
before Escobedo v. Illinois, supra, and Miranda v. Arizona, supra. See Davis v.
North Carolina, supra, 384 U.S. at 740-741, 86 S.Ct. 1761; Turner v.
Pennsylvania, 338 U.S. 62, 64, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949). The
Supreme Judicial Court has already had its 'opportunity to apply controlling
legal principles to the facts bearing upon (this) constitutional claim.' United
States ex rel. Kemp v. Pate, 359 F.2d 749, 751 (7th Cir. 1966)
6
Petitioner had been taking these pills for some time in order to control the
symptoms of epilepsy with which he was afflicted