
USCA1 Opinion

	




        July 8, 1992        UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2308                                 GERALD A. AMIRAULT,                                Petitioner, Appellant,                                          v.                                   MICHAEL V. FAIR,                                Respondent, Appellee.                                 ____________________               APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                             Lay,* Senior Circuit Judge,                                   ____________________                          and O'Scannlain,** Circuit Judge.                                             _____________                                 ____________________            Frank  Mondano with whom  Juliane Balliro  and Balliro, Mondano, &            ______________            _______________      ___________________        Balliro, P.C. were on brief for petitioner.        _____________            Pamela  L.  Hunt, Assistant  Attorney  General,  with  whom  Scott            ________________                                             _____        Harshbarger, Attorney General, was on brief for respondent.        ___________                                 ____________________                                 ____________________        _____________________        *  Of the Eighth Circuit, sitting by designation.        ** Of the Ninth Circuit, sitting by designation.                    Per  Curiam.    Gerald   Amirault  brings  this  habeas                    ___________          petition challenging  his state court conviction  on seven counts          of indecent assault and battery  of a child, and on eight  counts          of rape  of a child.   Amirault claims that a  juror's failure to          disclose a  material fact  during voir dire  questioning violated          his  Sixth Amendment right to an impartial jury and that improper          remarks made  by the prosecutor denied his right to a fair trial.          The  federal district court denied Amirault's petition for a writ          of habeas corpus.  We affirm.                                   Juror Misconduct                                   ________________                    Two days  after the  jury reached its  verdict, defense          counsel  received information that one  of the jurors  had been a          rape  victim forty years earlier.  Although the jurors were asked          on voir dire if they or any of their family members had ever been          involved  in a civil or criminal case, the juror failed to inform          the court that when she was fourteen years old she was raped by a          neighbor,  brought  charges against  him,  and  testified at  his          trial.   The  man she  accused of  raping  her was  convicted and          served a term of imprisonment for the crime.                    When   defense  counsel  brought  this  matter  to  the          attention  of   the  trial  court,  the   court  granted  counsel          permission to examine  the juror's voir dire responses, conduct a          private  investigation into  the allegations,  and examine  state          criminal  records  pertaining  to  the  1946  rape.    The  court          ultimately conducted an evidentiary hearing to examine the juror.          While the court conducted  its own inquiry of the  juror, it also                                         -2-                                          2          provided both parties the opportunity to question her.  The juror          testified that she had  no memory of the rape, but suggested that          if it had happened it must have been "over forty years ago."  She          later  admitted that something had happened to her as a child but          claimed to have no memory of it.                      After  its examination  of the  juror, the  state trial          court concluded that the  juror had genuinely "blocked"  from her          conscious mind the  memory of  the event and  that she  therefore          answered the  voir dire  questions honestly.   The  court further          concluded that "[b]ased upon  the evidence produced and reviewed,          it was  and is clear  and settled in  the mind of  the court that          [the juror] harbored no bias or prejudice against the defendant .          . .  ."  Commonwealth v.  Amirault, Nos. 85-70 to  80, 85-2653 to                   _________________________          2666, slip op. at 6 (Mass. Super. Ct.  Aug. 20, 1986) (memorandum          of  decision   on  defendant's  motion  for  new  trial).    This          conclusion was based  in part  on the court's  assessment of  the          juror's honesty, sincerity and apparent respect for the integrity          of  the criminal justice system.  Upon determining that the juror          neither intentionally  deceived the  court nor harbored  any bias          against the defendant,  the court declined to  permit the defense          to extend the hearing to include other witnesses.1                                        ____________________          1During a break in the hearing, a court clerk reported to defense          counsel a  conversation  he had  had  with the  juror's  counsel.          According  to the clerk, the  juror's attorney told  him prior to          the  hearing  that the  juror had  been  the victim  of  a sexual          assault  but  that  she  could remember  no  details.    Amirault          challenges  the court's denial of  his request that  the clerk be          permitted  to testify  at  the hearing  because he  believes such          testimony  would have served to impeach the juror.  We agree with          the  district court  that such  testimony would  have  had little                                         -3-                                          3                    Amirault concedes  that the trial court  acted properly          in conducting a post-conviction hearing  to examine the juror and          that trial  court findings on  questions of juror  partiality are          presumed correct under  28 U.S.C.   2254(d)  (1988).  He  claims,          however, that the trial court's findings of  impartiality are not          fairly supported by the record.  We disagree.                    A trial court's findings on issues of juror credibility          and honesty are determinations "peculiarly within a trial judge's          province" and are accorded great  deference.  Wainwright v. Witt,                                                        __________________          469  U.S. 412,  428 (1985);  see also  Patton v. Yount,  467 U.S.                                       ________  _______________          1025, 1038 (1984).   As the district court found,  the petitioner          has failed to produce convincing evidence that the  trial court's          finding that the  juror answered honestly  the questions on  voir          dire was erroneous.                      Although we  read the majority vote  in McDonough Power                                                            _______________          Equipment v. Greenwood, 464 U.S. 548 (1984), to require a further          ______________________          determination on the question of juror bias even where a juror is          found to  have been  honest,2   we find that  bias should  not be          implied  here.   As  the  federal  district court  observed,  the                                        ____________________          value to the proceeding.          2See  McDonough, 464  U.S. at  556-57 (Blackmun,  J., concurring)           ___  _________          ("[R]egardless  of   whether  a  juror's  answer   is  honest  or          dishonest,  it   remains  within  a  trial   court's  option,  in          determining whether  a jury  was  biased, to  order a  post-trial          hearing at  which the movant  has the opportunity  to demonstrate          actual bias or, in exceptional  circumstances, that the facts are          such  that bias is  to be inferred.");  id. at  558 (Brennan, J.,                                                  ___          concurring) ("I  therefore cannot agree  with the  Court when  it          asserts  that a new trial is not warranted whenever a prospective          juror provides an honest answer to the question posed.").                                         -4-                                          4          situation presented here  of a  juror found to  have blocked  the          memory of an unrelated  forty-year-old rape does not rise  to the          level  of  "exceptional"  or  "extreme" circumstances  which  may          permit a  finding of implied  bias.  See  Smith v. Phillips,  455                                               ___  _________________          U.S. 209, 222 (1982) (O'Connor, J., concurring).                               Prosecutorial Misconduct                               ________________________                    Amirault  claims  that  certain  remarks  made  by  the          prosecutor  violated his right to  a fair trial.   Amirault first          challenges  a  reference by  the  prosecutor  to his  post-arrest          silence as a  violation of his Fifth Amendment rights.  See Doyle                                                                  ___ _____          v. Ohio, 426 U.S. 610 (1976) (exercise  of right to remain silent          _______          may not  be used  against defendant at  trial).   In her  closing          remarks,  the prosecutor told the jury that while the law forbids          the  state from approaching  the defendant after  his arrest, the          law does  not prevent  defendants from affirmatively  telling his          side  of the  case.  We  agree with  the district  court that the          "fair response" exception to  the rule applies here.   See United                                                                 ___ ______          States  v. Robinson,  485 U.S.  25 (1988).   The  prosecutor made          ___________________          mention of  Amirault's silence  because defense counsel  had just          suggested to  the jury  that the  prosecution was  biased against          Amirault because  no one ever asked  him his side of  the story.           We also  find  the  curative instructions  issued  by  the  court          sufficient.                     Amirault also challenges  the prosecutor's reference to          facts not in  evidence, her expression  of personal opinion  with          respect  to  a  theory  advanced  by  one  of  Amirault's  expert                                         -5-                                          5          witnesses,  her alleged  suggestion  that the  defendant had  the          burden of disproving the  allegations, her mischaracterization of          the  defense  theory,  and  her   suggestion  that  incriminating          evidence  had been removed from the defendant's home prior to the          jury's  visit there.  To  prevail on these  claims, Amirault must          show that the remarks  "so infected the trial with  unfairness as          to  make  the  resulting conviction  a  denial  of due  process."          Donnelly v.  DeChristoforo, 416  U.S. 637, 643  (1974) (level  of          __________________________          review for cases which do not involve prosecutorial remarks which          "so prejudice[]  a specific right, such as  the privilege against          compulsory self-incrimination, as  to amount to a  denial of that          right.");  see also Smith v.  Phillips, 455 U.S.  209, 219 (1982)                     ________ __________________          ("[T]he touchstone of  due process analysis  in cases of  alleged          prosecutorial  misconduct is the  fairness of the  trial, not the          culpability of the prosecutor.").    We find that  petitioner has          failed to make this showing.   We agree with the district court's          finding  that these  comments  did  not  rise  to  the  level  of          constitutional error  and  that the  curative  instructions  were          sufficient.                      We  thus find  no constitutional  error and  affirm the          district  court's order denying the petition for a writ of habeas          corpus.                    Affirmed.                    ________                                         -6-                                          6
