
USCA1 Opinion

	




          February 15, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1668                                 HERBERT A. FOWLER, II,                                Petitioner, Appellant,                                          v.                         WARDEN, NEW HAMPSHIRE STATE PRISON,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ____________________            Jeffrey  R.  Howard,  Attorney  General,   and  Mark  D.  Attorri,            ___________________                             _________________        Assistant Attorney General, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Petitioner Herbert Fowler is appealing                      __________            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                                            ____________________            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.                                         -3-            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                            _____________     ________            (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                                         -4-            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                                                               ___ ______            States v.  Lilly, 983 F.2d 300, 307 (1st  Cir. 1992).   Here,            ______     _____            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,                                                                   _____                                         -5-            supra,  983 F.2d at 308 (prompt curative instruction from the            _____            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                                         -6-            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.                      _________                                         -7-
