USCA1 Opinion
February 15, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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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]
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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,
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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
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(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
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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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