11 F.

3d 374

Perry Lee HERRING, Petitioner-Appellant,

v.
Larry R. MEACHUM, Commissioner of Corrections,
Respondent-Appellee.
No. 1871, Docket 93-2067.

United States Court of Appeals,

Second Circuit.
Argued Aug. 11, 1993.
Decided Dec. 9, 1993.

Jeremiah Donovan, Old Saybrook, CT, for petitioner-appellant.

Timothy J. Sugrue, Asst. State's Atty., Wallingford, CT for respondentappellee.
Before WINTER, MINER, and WALKER, Circuit Judges.
WALKER, Circuit Judge:

Petitioner Perry Lee Herring appeals from a judgment of the United States
District Court for the District of Connecticut, Peter C. Dorsey, Judge, denying
his petition for a writ of habeas corpus. On appeal, Herring argues, inter alia,
that he was deprived of due process by Connecticut's joinder of two unrelated
murder charges for trial and the state trial court's refusal to instruct the jury
regarding the lesser included offense of manslaughter, and that locking the
courtroom doors during the jury charge deprived him of a fair and public trial.

We affirm the judgment of the district court.

BACKGROUND
3

In March 1987, Perry Lee Herring went to trial in Connecticut Superior Court
for two unrelated murders: the murder of Donald Gore on April 16, 1981, and
that of Henry J. "Rico" Littman whose body was found on May 15, 1981.

Herring was convicted of felony murder of Gore, and of being an accessory to

the murder of Littman.
4

The state's principal witness was Herring's former girlfriend, Loretta Swain, a
prostitute and shoplifter with a history of psychological problems. According to
her testimony, on the night of Donald Gore's murder, Swain was with Herring
in a Hartford, Connecticut bar. She noticed Gore, whom she knew
"professionally," and told Herring that she thought she could obtain money
from Gore. Herring told Swain to arrange to meet Gore in a nearby parking lot,
where Herring would "stick the guy up" while Gore was undressed. Swain met
Gore in his van as planned. Soon thereafter, Herring approached the van and
announced, "Yo, this is a stick-up." When Gore started the van and attempted
to drive away, petitioner fired several shots at Gore, fatally wounding him.
Swain jumped from the van and, with petitioner, fled the scene. Along the way,
she dropped several personal belongings in the van and around the crime scene
which were found by police, and identified as belonging to Swain. Swain was
questioned as a suspect in Gore's murder, but she was never formally charged.

Another witness, Graylon Shannon, corroborated Swain's testimony regarding

the Gore shooting. Shannon testified that when they were both inmates at the
Hartford Correctional Center, Herring admitted to the Gore shooting. For the
defense, Edward Condon, an eyewitness, testified that he heard tires screeching
and shots fired, and saw a van speeding through the parking lot with a white
man with long stringy hair hanging from the van. Herring is a black man whose
hair is not "stringy."

In her testimony, Swain also implicated Herring in the unrelated murder of

Henry "Rico" Littman. Swain told police that Herring, along with Littman and
Henry Robinson, had robbed a bank, and that during the robbery Littman's face
came unmasked. Herring and Robinson feared that Littman would be
discovered and would, in turn, reveal their identities. They decided that "they
had to get rid of" Littman to prevent police from discovering their involvement
in the robbery. On May 15, 1981, Littman's body was found in the trunk of a
car with his head wrapped in a black plastic bag and his hands tied. Police
determined that he had died from a shotgun wound to the head.

Glenda Hightower, Robinson's former girlfriend, corroborated Swain's

testimony about the Littman murder. Hightower overheard Herring tell
Robinson that Littman had "to go" because bank cameras probably captured his
face on film. In addition, one T.J. Thomas testified that on May 15, 1981, he
had seen Robinson and another man pass him in the car in which Littman's
body was later found. He saw the two men get out of the car and run away.

Graylon Shannon also testified that Herring later admitted in prison that he had
carried Littman's body to the car and drove to the place where the car was
abandoned.
8

Connecticut brought two separate informations against Herring charging him

with the Gore and Littman killings. The first charged murder and felony murder
in connection with Gore's death; the second charged murder in connection with
Littman's death. On March 9, 1987, without objection from petitioner, the
informations were consolidated for trial. Shortly thereafter, the State filed an
amended information as to the Littman killing, charging Herring with an
additional count of conspiracy to commit murder.

After the Littman information was amended to include the conspiracy count,
Herring objected to the joint trial of the two informations by moving for a
severance. In support of his severance motion, Herring claimed that until the
Littman information was amended, to his knowledge Loretta Swain was the
only witness common to both counts. He argued that the addition of the
conspiracy charge to the Littman information would cause him substantial
prejudice because the additional witnesses that would testify to prove the
Littman conspiracy would bolster Swain's credibility as to the separate Gore
murder as well. The trial court denied Herring's severance motion and the trial
went forward on the consolidated charges.

10

During the trial, the judge instructed the jury on three occasions--in jury
selection, during the trial itself, and in the final jury instructions--that the
crimes charged were independent, and that the evidence regarding one murder
was not to be considered in determining whether Herring was guilty as to the
other. The jury returned a verdict finding Herring guilty of felony murder in
connection with the death of Gore, and of being an accessory to Littman's
murder, but acquitting him of murder as to Gore and conspiracy as to Littman.
The Supreme Court of Connecticut upheld the convictions, State v. Herring,
210 Conn. 78, 554 A.2d 686 (1989), and the United States Supreme Court
denied certiorari, Herring v. Connecticut, 492 U.S. 912, 109 S.Ct. 3230, 106
L.Ed.2d 579 (1989).

11

On petition for habeas corpus, Magistrate Judge Joan Glazer Margolis issued a
recommended ruling respecting Herring's arguments. The district court adopted
the Magistrate Judge's ruling over petitioner's objection. We now affirm the
judgment of the district court.

DISCUSSION

I. Joinder of Offenses
12

Petitioner first claims that the trial judge should have granted his motion for
severance because joining the Gore and Littman murders for trial violated his
due process rights under the Fourteenth Amendment. By adding the Littman
conspiracy charge, Herring argues, the state impermissibly increased the
probability of conviction on the Gore charges because, although the additional
witnesses testified only as to the Littman murder, they bolstered Loretta Swain's
testimony as to both. He also claims that there was an unconstitutional risk that
the jury would use the evidence cumulatively to convict with respect to both
murders.

13

Joinder of offenses rises to the level of a constitutional violation only if it

"actually render[s] petitioner's state trial fundamentally unfair and hence,
violative of due process." Tribbitt v. Wainwright, 540 F.2d 840, 841 (5th
Cir.1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1184, 51 L.Ed.2d 587 (1977);
see United States v. Lane, 474 U.S. 438, 446 n. 8, 106 S.Ct. 725, 730 n. 8, 88
L.Ed.2d 814 (1986). In considering whether a violation of due process has
occurred, the emphasis must be on the word "actually"; for, viewed clearly, it is
only the consequences of joinder, over which the trial judge has much control,
and not the joinder itself, which may render the trial "fundamentally unfair."
See United States ex rel. Evans v. Follette, 364 F.2d 305, 306 (2d Cir.1966)
(per curiam) (decision to consolidate charges for trial does not itself raise an
issue of constitutional dimension), cert. denied, 385 U.S. 1016, 87 S.Ct. 733, 17
L.Ed.2d 552 (1967). We have recognized that "[t]here is indeed always a
danger when several crimes are tried together, that the jury may use the
evidence cumulatively; that is, that, although so much as would be admissible
upon any one of the charges might not have persuaded them of the accused's
guilt, the sum of it will convince them as to all." United States v. Lotsch, 102
F.2d 35, 36 (2d Cir.) (L. Hand, J.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83
L.Ed. 1500 (1939). We have also noted that " 'juries are apt to regard with a
more jaundiced eye a person charged with two crimes than a person charged
with one.' " United States v. Werner, 620 F.2d 922, 929 (2d Cir.1980) (quoting
United States v. Smith, 112 F.2d 83, 85 (2d Cir.1940)); see also Corbett v.
Bordenkircher, 615 F.2d 722, 724-25 (6th Cir.) (describing forms of prejudice
that may result from joint trial), cert. denied, 449 U.S. 853, 101 S.Ct. 146, 66
L.Ed.2d 66 (1980).

14

Nonetheless, the Supreme Court, a generation ago, explicitly accepted that "
[t]his type of prejudicial effect is acknowledged to inhere in criminal practice,
but it is justified on the grounds that (1) the jury is expected to follow
instructions in limiting this evidence to its proper function, and (2) the

convenience of trying different crimes against the same person ... in the same
trial is a valid governmental interest." Spencer v. Texas, 385 U.S. 554, 562, 87
S.Ct. 648, 653, 17 L.Ed.2d 606 (1967). Thus, joinder of offenses has long been
recognized as a constitutionally acceptable accommodation of the defendant's
right to a fair trial. As discussed in the context of joinder of defendants,
consolidated prosecutions "conserve state funds, diminish inconvenience to
witnesses and public authorities, and avoid delays in bringing those accused of
crime to trial." Bruton v. United States, 391 U.S. 123, 134, 88 S.Ct. 1620, 1627,
20 L.Ed.2d 476 (1968); see Zafiro v. United States, --- U.S. ----, ----, 113 S.Ct.
933, 937, 122 L.Ed.2d 317 (1993). Therefore, where a defendant is claiming a
due process violation based upon joinder of offenses, he must, to succeed, go
beyond the potential for prejudice and prove that actual prejudice resulted from
the events as they unfolded during the joint trial. Tribbitt, 540 F.2d at 841
(joinder must "actually" render trial fundamentally unfair before habeas relief
is appropriate); see Opper v. United States, 348 U.S. 84, 94-95, 75 S.Ct. 158,
165, 99 L.Ed. 101 (1954) (general allegations of jury confusion in multiple
defendant trial insufficient to warrant reversal of conviction in the absence of
evidence of actual prejudice).
15

In the instant case, petitioner has not made the required showing of actual
prejudice. The jury at petitioner's trial was instructed on three separate
occasions that evidence of one murder was not to be used to determine
petitioner's guilt with respect to the other. We must presume the jury followed
these instructions "unless there is an 'overwhelming probability' that the jury
will be unable to follow the court's instructions, and a strong likelihood that the
effect of the evidence would be 'devastating' to the defendant." Greer v. Miller,
483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 3109 n. 8, 97 L.Ed.2d 618 (1987)
(quoting Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 1708, 95
L.Ed.2d 176 (1987), and Bruton, 391 U.S. at 136, 88 S.Ct. at 1628); see United
States v. Colombo, 909 F.2d 711, 715 (2d Cir.1990). No such overwhelming
probability of jury confusion exists in this case; to the contrary, the probability,
if anything, goes the other way. As noted by the Magistrate Judge, "[d]uring its
deliberations, the jury requested the rereading of portions of the jury charges
and twice requested the rereading of certain testimony." Based on the
instructions, the jury seems to have carefully evaluated the evidence on each
count separately; it convicted petitioner on two of the counts, but acquitted him
on the other two.

16

Moreover, because the evidence with respect to each murder was distinct and
easily compartmentalized, the risk of jury confusion at petitioner's trial was
significantly limited. See United States v. Chang An-Lo, 851 F.2d 547, 556 (2d
Cir.) (defendants were not substantially prejudiced by joint trial where "the

evidence with respect to each of the defendants was adequately straightforward

that the jury could consider it without any significant spillover effect"), cert.
denied, 488 U.S. 966, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988); Lotsch, 102 F.2d
at 36 (defendant's objection to joinder of offenses disappears when his "conduct
on several separate occasions can properly be examined in detail"). The state
alleged that Gore was shot with a low-caliber gun while trying to escape from a
robbery, while Littman was killed with a shotgun and left in the trunk of a car.
The evidence adduced to prove each crime related to a different time, place, and
modus operandi. Moreover, the trial was not unduly lengthy or complex. Under
these circumstances we easily conclude that the jury was able to deliver a
reliable verdict.
17

Nor is there any showing that the jury improperly credited Loretta Swain's
testimony on all counts because of additional corroboration from witnesses as
to the added Littman conspiracy charge. Whether or not an allegation of
spillover corroboration reaches a constitutional level--an issue we leave open-the jury's acquittal on the Littman conspiracy itself goes far toward answering
any claim that corroboration on that count improperly motivated the jury's
verdict as to the other charges.

18

Finally, it is appropriate that habeas petitioners challenging their state

convictions under the general "fairness" mandate of the due process clause bear
an onerous burden. Because of the significant procedural protection provided
by direct review through the state system, we will not lightly conclude that state
court proceedings were so arbitrary as to violate due process. See Brecht v.
Abrahamson, --- U.S. ----, ----, 113 S.Ct. 1710, 1719, 123 L.Ed.2d 353 (1993)
(presumption of finality and legality attaches to state criminal proceedings);
TXO Prod. Corp. v. Alliance Resources Corp., --- U.S. ----, ----, 113 S.Ct. 2711,
2720, 125 L.Ed.2d 366 (1993) (plurality opinion) ("Assuming that fair
procedures were followed, a judgment that is a product of that process is
entitled to a strong presumption of validity."). In the absence of some
affirmative irregularity in the administration of the criminal law by the state,
only in limited circumstances is habeas relief available under the general
"fairness" mandate of the Fourteenth Amendment, and even then, only upon
clearly defined and narrowly limited grounds. See Dowling v. United States,
493 U.S. 342, 352-53, 110 S.Ct. 668, 674-75, 107 L.Ed.2d 708 (1990);
Spencer, 385 U.S. at 565, 87 S.Ct. at 654; Ashe v. United States ex rel. Valotta,
270 U.S. 424, 426, 46 S.Ct. 333, 334, 70 L.Ed. 662 (1926) (Holmes, J.).

19

Petitioner raises questions of potential prejudice that are not disputed, but the
potential for prejudice arising from joinder of offenses is insufficient to warrant
reversing a presumptively valid state court conviction. Petitioner has not shown

actual prejudice from which we could conclude that he was deprived of a

fundamentally fair trial. Accordingly, we conclude that his claim that he was
denied due process by the joinder for trial of the charges related to both
murders is without merit.
II. Locking the Courtroom Doors During Jury Instruction
20
21

We next turn to petitioner's challenge of the state trial judge's decision to lock
the courtroom doors while instructing the jury. Petitioner claims that he was
deprived of a fair and public trial as guaranteed by the Sixth Amendment and
applicable to the states through the Due Process Clause of the Fourteenth
Amendment. See In re Oliver, 333 U.S. 257, 271-72, 68 S.Ct. 499, 506-07, 92
L.Ed. 682 (1948). In denying petitioner's request that the doors remain
unlocked, the trial judge noted that

22 custom [in Connecticut] has been not to disturb the contact of the judge to the
our
jury, and the jury listening to the judge giving instructions. The hearing is still
public. If people want to come in prior to the start of instructions, they are permitted.
But ... to have suddenly a group come in, that distracts the jurors from what the
judge is instruction [sic], and results in the jury not getting everything and having to
then ask again to be instructed.
23

We need not delay long on whether locking the doors violated the Constitution
because the trial judge's order in this case did not effect a "closure" for Sixth
Amendment purposes. In United States v. Romano, 684 F.2d 1057, 1065 (2d
Cir.), cert. denied, 459 U.S. 1016, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982), we
rejected as "frivolous" a claim that the defendants were deprived of a public
trial because the courtroom doors were locked during the judge's charge to the
jury. We thought the restriction to be reasonable in order to ensure that the jury
was instructed without distraction, and held that no closure had occurred
because members of the public had access to the courtroom before the doors
were locked, and were present when the charge was delivered. Id. We therefore
found that the Sixth Amendment right to a public trial was not implicated.

24

Petitioner claims that our reasoning in Romano has been undermined by the
later Supreme Court decisions in Waller v. Georgia, 467 U.S. 39, 104 S.Ct.
2210, 81 L.Ed.2d 31 (1984), and Press-Enterprise Co. v. Superior Court, 464
U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). Press-Enterprise held that the
press and public had a presumptive First Amendment right of access to trials
which could be "overcome only by an overriding interest based on findings that
closure is essential to preserve higher values and is narrowly tailored to serve
that interest." 464 U.S. at 510, 104 S.Ct. at 824. The Court further held that "

[t]he interest is to be articulated along with findings specific enough that a

reviewing court can determine whether the closure order was properly entered."
Id. Waller extended the procedures announced in Press-Enterprise to cover the
accused's right to a public trial under the Sixth Amendment as well. See Waller,
467 U.S. at 47, 104 S.Ct. at 2215-16; Jones v. Robinson, 809 F.2d 946, 952-53
(2d Cir.1987) (Kearse, J., concurring) (discussing the evolution of the legal
standards).
25

While it is clear that Waller reflects an expansion of the defendant's Sixth

Amendment right to a public trial, it is equally clear that Waller is
distinguishable from the case at bar. In both Press-Enterprise and Waller the
trial court had ordered complete exclusion of the public from the proceedings.
See Waller, 467 U.S. at 42, 104 S.Ct. at 2213 (suppression hearing closed to
"all persons other than witnesses, court personnel, the parties, and the
lawyers"); Press-Enterprise, 64 U.S. at 510, 104 S.Ct. at 824 (public excluded
from all but three days of six week voir dire and transcripts not released
afterwards). Here, by contrast, spectators had unrestricted courtroom access
throughout the trial, including the jury charge, as long as they arrived before it
began. For those who arrived late, transcripts of the jury charge were available.
Petitioner's trial was therefore "public" within the meaning of the Sixth
Amendment.

26

For similar reasons, our decision in Woods v. Kuhlmann, 977 F.2d 74 (2d
Cir.1992), is inapposite. In Woods, we upheld the trial court's exclusion of the
defendant's family from the courtroom during a key prosecution witness's
testimony because the witness was too intimidated to testify while they were in
attendance. All other members of the press and public were allowed to remain.
We distinguished Waller on the ground that excluding the defendant's family
effected only a partial closure, and a partial closure did not "implicate the same
secrecy and fairness concerns that a total closure does." Id. at 76. We held that
to justify a partial closure the trial court need only articulate a "substantial
reason," as opposed to the "overriding interest" required by Waller for complete
closures. Id.

27

Woods does not apply because here the trial judge's actions did not amount
even to a partial closure. All members of the public or press who wanted to
observe the jury charge were permitted to do so if there was enough space in
the courtroom and they arrived in time. Petitioner argues that some members of
the press or public might not be able to attend locked jury charges because most
people operate under time constraints and therefore cannot commit to
remaining in the courtroom throughout the reading of the charge. However, the
Sixth Amendment protects the right to a public trial; it does not guarantee that

trials will be conducted to fit the schedules of all who wish to attend.
28

Reasonable time, place, and manner limitations on access to the courtroom are
permitted to ensure the fair and efficient administration of justice. See
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n. 18, 100 S.Ct.
2814, 2830 n. 18, 65 L.Ed.2d 973 (1980) (plurality opinion). The trial judge's
order was reasonable in light of his articulated purpose for locking the
courtroom doors--to avoid jury distraction while the charge was being
delivered. Petitioner's trial was therefore never "closed" in violation of the
Sixth Amendment, and his claim that he was denied a public trial must fail.

III. Instruction on Lesser Included Offenses

29

Petitioner next claims that he was deprived of due process because the trial
judge refused to instruct the jury on the lesser included offenses of first and
second degree manslaughter with respect to the Littman murder. Petitioner
argued to the trial court that the "tenuous nature of the evidence" regarding his
role in the Littman murder justified a jury finding that he did not have the
specific intent to commit murder, and that the manslaughter charge was
therefore appropriate. See State v. Herring, 210 Conn. at 104-05, 554 A.2d at
699-700. He claimed that Glenda Hightower's testimony regarding petitioner's
statement that Littman had "to go" could have been interpreted by the jury as
meaning only that Littman has "got to leave," and that Graylon Shannon's
testimony indicated that petitioner confessed not to killing Littman, but only to
helping dispose of his body. The trial court rejected petitioner's argument and
found that a manslaughter instruction was not warranted by the evidence.

30

On appeal, petitioner offers a different justification for the manslaughter

instruction. He now argues that the jury could have concluded from the
evidence that Littman was "killed during a sudden violent altercation in which
the intent necessary for a murder conviction had been lacking." However,
petitioner did not make this argument to the state trial court. Under Connecticut
law, an appeals court should not review a justification for a lesser included
offense that was not raised at trial. Id. The Connecticut Supreme Court, in
upholding the trial court's determination that the evidence on intent was not
sufficiently disputed to warrant the manslaughter instruction, explicitly declined
to address any evidentiary grounds not raised in the trial court. Id. at 105, 554
A.2d at 699-700. Therefore, petitioner's claim based on the "altercation"
evidence was procedurally defaulted by his failure to raise it in state court, and,
as no cause has been offered to justify the default, we decline to address it on
this appeal. See Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 2666, 91
L.Ed.2d 434 (1986).

CONCLUSION
31

We have examined petitioner's remaining claims, and affirm substantially for

the reasons stated in the Magistrate Judge's opinion and adopted by the district
court. Accordingly, the judgment of the district court is affirmed.