
USCA1 Opinion

	




        October 5, 1992         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1096                                  WILLIAM NADWORNY,                                Petitioner, Appellant,                                          v.                              MICHAEL FAIR, COMMISSIONER                                   OF CORRECTIONS,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                         Torruella and Stahl, Circuit Judges,                                              ______________                             and Hornby,* District Judge.                                          ______________                                 ____________________            Charles M. Burnim for appellant.            _________________            LaDonna J.  Hatton, Assistant  Attorney General,  with whom  Scott            __________________                                           _____        Harshbarger, Attorney General, was on brief for appellee.        ___________                                 ____________________                                 ____________________        _____________________        * Of the District of Maine, sitting by designation.        STAHL, Circuit Judge.   On  July 20, 1982,  approximately four  months        STAHL, ______________        after she failed to return  home from an evening visit  with appellant        William Nadworny,  Lisa Belmonte's  decomposed body  was found  in the        trunk of Nadworny's  automobile.  Almost two years later,  on June 12,        1984, a  Massachusetts Superior Court  jury found  Nadworny guilty  of        second degree murder.  Nadworny unsuccessfully appealed his conviction        to  the  Massachusetts  Supreme   Judicial  Court.    Commonwealth  v.                                                              ____________        Nadworny,  486 N.E.2d  675 (Mass.  1985), cert.  denied, 477  U.S. 904        ________                                  _____  ______        (1986).              After the United States Supreme Court denied certiorari,  Nadworny        filed a petition for habeas corpus in the United States District Court        for the District of  Massachusetts.  The district court  dismissed his        petition for  failure to  exhaust his post-conviction  state remedies.        On appeal from that dismissal, we reversed and remanded the case for a        decision  on the merits.   Nadworny v.  Fair, 872 F.2d  1093 (1st Cir.                                   ________     ____        1989).              On  April 5, 1991,  after careful  consideration of  the merits of        Nadworny's  claims,  the district  court  dismissed Nadworny's  habeas        petition and entered  judgment for the  respondent, Michael Fair,  the        Commissioner  of Corrections for the  Commonwealth.1  It  is from that        dismissal that Nadworny now appeals.  Finding no error in the district        court's decision, we affirm.        I.  DISCUSSION        I.  DISCUSSION        ______________            In this appeal, Nadworny  asserts the following  four grounds  for        relief: (1) the district court erred in finding sufficient evidence to        convict him of second degree  murder; (2) the district court erred  in        finding no denial of due process in the state trial court's refusal to        instruct on  the lesser included offense  of involuntary manslaughter;        (3) the  district court erred in  finding no denial of  due process in        the  state   trial  court's   exclusion  of  evidence   rebutting  the        prosecution's  contention that  certain of Nadworny's  statements were        indicative of his consciousness  of guilt; and (4) the  district court        erred  in finding  no infringement  upon his  privilege  against self-        incrimination  in the  state  trial court's  admission  of certain  of        Nadworny's involuntarily procured statements to the police and certain        statements contained  in a  handwriting  exemplar.   We address  these        arguments seriatim.        A.  Sufficiency of Evidence        A.  Sufficiency of Evidence        ___________________________            Nadworny first contends  that the district  court erred in finding        a  sufficiency of  evidence in  the record  to convict  him of  second        degree  murder.   In  essence,  Nadworny asserts  that  his conviction        cannot stand  because it  rests entirely upon  circumstantial evidence                                    ____________________             1In its  published opinion,  the district court  delayed entering        judgment  for respondent until the parties had an opportunity to brief        more fully  one of the  issues raised  by Nadworny.   See Nadworny  v.                                                              ___ ________        Fair, 744  F. Supp.  1194, 1214-15 (D.  Mass. 1990).   After resolving        ____        that  issue, the  district court  entered final  judgment in  favor of        respondent on April 5, 1991.             and because  the jury rejected the evidentiary  inferences he believes        were most reasonable.  Nadworny's assertion is meritless.2            In analyzing a sufficiency of evidence  claim, we must review  the        evidence as a whole,  including all inferences that may  reasonably be        drawn  therefrom, in the light  most favorable to  the government, and        determine  if "any  rational  trier  of  fact  could  have  found  the                       ___        essential elements of the crime beyond a reasonable doubt."  Wright v.                                                                     ______        West,      U.S.     ,     ,  112 S. Ct. 2482,  2485-86 (1992) (quoting        ____  ____       ___   ___        Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original).        _______    ________        Further,  "[t]he  evidence  may  be entirely  circumstantial  and  the        factfinder may choose among reasonable interpretations of it."  United                                                                        ______        States v. Plummer, 964 F.2d 1251, 1254 (1st Cir. 1992).          ______    _______            Under  Massachusetts law,  second degree  murder is defined  as an        unlawful  killing   of  a   human  being  with   malice  aforethought.        Commonwealth v. Kane,  445 N.E.2d 598, 601 (Mass.  1983); Commonwealth        ____________    ____                                      ____________        v. Casale, 408 N.E.2d 841, 845 (Mass. 1980).  The  evidence before the           ______        state trial court included the following:3            1.  The testimony of four witnesses that Belmonte was            at  Nadworny's  apartment  on  the   evening  of  her            disappearance.            2.   The testimony  of three witnesses  that Nadworny            had  acknowledged that  Belmonte's death  occurred in            his apartment on the night of her disappearance.            3.   The testimony of  one witness that  Nadworny had            informed   him   that  the   Commonwealth's  evidence            included "blood stains from Lisa's body" found on his            apartment floor.            4.  A letter  from Belmonte to Nadworny  making clear            that she intended to end their relationship, and that            if she  met with him  again it would only  be for the            purpose of saying "goodbye."              5.   The  testimony of  one  witness who  spoke  with            Belmonte  on  the  afternoon  of  her  disappearance,            indicating that, upon  leaving her presence, Belmonte            said  that she  intended  immediately to  go over  to            Nadworny's apartment to say  "goodbye" to him and end            the relationship.                                    ____________________             2As the facts of this  case are recorded in exhaustive  detail in        the  opinions  of  the   Massachusetts  Supreme  Judicial  Court,  see                                                                           ___        Nadworny,  486 N.E.2d at 677-82,  and the federal  district court, see        ________                                                           ___        Nadworny, 744 F. Supp. at 1197-99, we will repeat only those necessary        ________        for resolution of this appeal.             3We must accord  the state court's factual findings a presumption        of correctness.  28 U.S.C.   2254(d); Hernandez v. New York,     U.S.                                               _________    ________  ___         ,    , 111 S. Ct. 1859, 1869 (1991).        _  ___            6.   The testimony of one witness  that Nadworny told            her  that he  "couldn't  bear  it  if  they  [he  and            Belmonte] broke up."             7.   A letter  purportedly from Nadworny  to Belmonte            stating that he felt "used" by her.            8.   Evidence suggesting  that Nadworny was  the only            one with her when she died.            9.  Evidence tending to show that, in the four months            between the time Belmonte met  her death and the time            her body  was discovered  in the trunk  of Nadworny's            automobile, Nadworny was concealing her body.            10.  Testimony  that Nadworny had  asked a friend  to            "alibi" for him.            11.  Testimony  that Nadworny  had told  inconsistent            stories  about Belmonte's  condition on  the  day she            disappeared  and   about   where  she   was   located            thereafter.            12.   The testimony  of the pathologist  who examined            Belmonte's  body indicating  that  it  was  extremely            unlikely that she had died of natural causes and that            there was no  evidence of   pills in  her stomach  or            major trauma to the body.             We agree  with the district  court that  the sum total  of this          evidence was sufficient to allow a rational trier of fact to find          that   Nadworny   unlawfully    killed   Belmonte   with   malice          aforethought.    Consequently,  we  affirm  its  conclusion  that          Nadworny's insufficiency claim did not merit habeas relief.          B.  Failure to Instruct on Lesser-Included Offense of Involuntary          B.  Failure to Instruct on Lesser-Included Offense of Involuntary          _________________________________________________________________          Manslaughter          Manslaughter          ____________            Nadworny next  argues that the district court  erred in finding          no denial  of due process in  the state trial court's  refusal to          instruct   on  the   lesser  included   offense  of   involuntary          manslaughter. This claim does not require extended discussion.            In a recent case squarely on point, we held that  a state trial          court's refusal to  instruct on  a lesser included  offense in  a          noncapital  case  "rarely,  if  ever, presents  a  constitutional          question . . . ."   Tata v. Carver,  917 F.2d 670, 672 (1st  Cir.                              ____    ______          1990) (quoting Pitts  v. Lockhart,  911 F.2d 109,  112 (8th  Cir.                         _____     ________          1990), cert.  denied,     U.S.     , 111 S. Ct. 2896 (1991)).  To                 _____  ______  ___      ____          rise to  the level  of a  due process violation,  the refusal  to          instruct must "threaten[] a  fundamental miscarriage of justice .          . . ."  Id.                    ___            In Tata, we found that the trial court's refusal to instruct on               ____          a  lesser included offense  did not rise  to that level.   Id. at                                                                     ___          672-73.  The defendant in that case was convicted under state law          of trafficking in  one hundred  grams or more  but less than  two          hundred  grams  of  cocaine.    Id.  at  670-71.    The  evidence                                          ___          introduced during the prosecution's case in chief included 111.82          grams of cocaine which had been  lawfully seized from defendant's          apartment.  As part of his defense, defendant introduced evidence          tending to show that he consumed  as much as two grams of cocaine          a week.            The  trial  judge  instructed  the   jury  on  the  offense  of          trafficking in one  hundred grams or more but did not instruct on          the  lesser  included offense  of  trafficking in  less  than one                                                             ____  ____          hundred grams of cocaine.   On appeal, defendant argued  that the          failure to  so instruct  violated due  process  because the  jury          could have found the lesser amount by deducting an amount for his          personal use. Id. at 671.                          ___            We  rejected  the  defendant's  argument  in  Tata  on  several                                                          ____          grounds.   First, we held  that there was  sufficient evidence in          the  record  to  show that  the  quantity  of  drugs seized  from          defendant's  apartment was  unsuitable for  personal consumption.          Id. at 672.  Second, we held that the requested instruction would          ___          have  been  inconsistent with  defendant's  theory  of the  case,          namely  that he never possessed the cocaine  at all.  Id. at 672-                                                                ___          73.    More importantly,  we  questioned  whether an  evidentiary          predicate for  the requested  instruction even  existed.   Id. at                                                                     ___          672.            Likewise,  in the  instant case,  we find  that the  failure to          instruct  on  involuntary  manslaughter   did  not  amount  to  a          "fundamental  miscarriage  of  justice."    After  reviewing  the          record,  the Massachusetts  Supreme  Judicial  Court,  the  final          arbiter on  matters of  state law,  found  that "no  view of  the          evidence,  resolving all  reasonable inferences  in favor  of the          defendant, . . . permitted  a finding of . . . involuntary  . . .          manslaughter."   Nadworny, 486 N.E.2d at  687 (citation omitted).                           ________          Further, the federal district court, after reading the record  in          a  light  most  generous   to  Nadworny,  found  the  evidentiary          predicate for  an involuntary manslaughter  instruction "gossamer          thin."  Nadworny,  744 F.  Supp. at  1207.   Finally, the  record                  ________          reveals  that  even  Nadworny's   trial  counsel  found  such  an          instruction  unwarranted.   See id.  at 1204 ("As  to involuntary                                      ___ ___          manslaughter,  I [Nadworny's  counsel] can't  see how  the Court,          under the present state of Massachusetts law, could give a charge          allowing  such  a verdict.  . .  .").   Thus,  Nadworny's present          complaint that the failure to instruct resulted in a "fundamental          miscarriage of justice" is unpersuasive.            Accordingly, we agree with the district court's conclusion that          Nadworny's  due process  rights were  not violated  by  the trial          court's refusal to give the requested instruction.4          C.  Exclusion of Evidence Rebutting Consciousness of Guilt          C.  Exclusion of Evidence Rebutting Consciousness of Guilt          __________________________________________________________            Nadworny's third argument  is that the district court  erred in          finding  no  denial of  due process  in  the state  trial court's          exclusion of  certain admissible evidence.   The state introduced          evidence  at  trial  that  Nadworny had  made  statements  to  an          individual  that tended  to show  a consciousness  of guilt.   In          rebuttal, Nadworny attempted  to put  a witness on  the stand  to          refute  that implication.  The state trial judge refused to allow          that testimony.  According  to Nadworny, this refusal constitutes          reversible error.            We have  previously made clear, however,  that "[h]abeas review          does   not   ordinarily   encompass  garden-variety   evidentiary          rulings."   Palmariello v. Superintendent of  M.C.I. Norfolk, 873                      ___________    _________________________________          F.2d 491, 494  (1st Cir. 1989).   To warrant  habeas relief,  the          allegedly  erroneous exclusion  must be  "so prejudicial  that it                                    ____________________             4Perhaps  recognizing   the  shaky  foundation   upon  which  his        "fundamental miscarriage  of justice" argument rests,  Nadworny spends        the bulk of his brief arguing that Tata  was wrongly decided.  We find                                           ____        his  arguments on  this question  unpersuasive.  Moreover,  "[w]e have        held, with a regularity bordering on  the monotonous, that in a multi-        panel  circuit, newly constituted panels  are, by and  large, bound by        prior panel decisions  closely [on] point."   Metcalf & Eddy,  Inc. v.                                                      _____________________        Puerto  Rico Aqueduct And Sewer  Authority, 945 F.2d  10, 12 (1st Cir.        __________________________________________        1991), cert. granted,  60 U.S.L.W. 3482 (U.S.  Mar. 9, 1992)  (No. 91-               _____ _______        1010).                             amounts to a denial  of due process."  Fitzgerald  v. Armontrout,                                                 __________     __________          963 F.2d 1062, 1064 (8th Cir. 1992), petition for cert. filed,                                                  ________ ___ _____ _____  __          U.S.L.W.     (U.S. Aug. 3, 1992) (No. 92-5364).                   ___            As pellucidly explained by the district court, Nadworny's claim          does not merit habeas relief because the  excluded evidence would          have  rebutted  merely  one aspect  of  the  state's  evidence on          consciousness of guilt, and that aspect  was itself cumulative.5           Thus, even if Nadworny is correct in his assertion that the trial          judge erred in excluding this evidence, such error would not rise          to the level of a due process violation.          D.  Admission of  Evidence in Violation of His  Privilege Against          D.  Admission of  Evidence in Violation of His  Privilege Against          _________________________________________________________________          Self-Incrimination          Self-Incrimination          __________________            Nadworny's final argument  is that the district  court erred in          finding  no  infringement  upon  his  Fifth  Amendment  privilege          against self-incrimination  in the state  trial court's admission          of certain  involuntarily procured  statements to the  police and          certain  statements contained  in  a handwriting  exemplar.6   We          disagree on both counts.            1.  Nadworny's Telephonic Statements to the Police            1.  Nadworny's Telephonic Statements to the Police            __________________________________________________                                    ____________________             5The district court  noted seven other  pieces of evidence  which        directly  and  forcefully  demonstrated  Nadworny's  consciousness  of        guilt.  See Nadworny, 744 F. Supp. 1200-01.                ___ ________             6Nadworny characterizes  his claim as one brought under the Fifth        Amendment.   This characterization is, however, technically incorrect.        As  the state is the alleged wrongdoer, the Fourteenth Amendment's Due        Process Clause  is the proper hook upon which to hang this claim.  See                                                                           ___        Malloy v.  Hogan, 378 U.S. 1, 6-7 (1964) (holding that the Due Process        ______     _____        Clause  of the  Fourteenth Amendment  protects individuals  from state        abridgement   of  their   Fifth  Amendment  privilege   against  self-        incrimination).              During  the  evening  of  July  19,  1982,  while  state police          officers  were  at Nadworny's  parents'  home  as part  of  their          investigation, Nadworny telephoned  his parents.   After  talking          with  Nadworny, his  mother handed  the telephone  to one  of the          officers.   The  officer  identified himself  and asked  Nadworny          about  Belmonte.   Nadworny replied:  "She overdosed  five months          ago.  I  don't want to  talk about it."   The officer  continued,          however, to  question Nadworny about Belmonte's  whereabouts.  In          response, Nadworny told the officer that he did not want to go to          jail, that he could not "hack it," that he needed  time to think,          and that he might contact the officer later.              At trial,  the judge allowed  the prosecution to  introduce the          above statements  during its  case in  chief.7  Nadworny  submits          that  these statements  amounted  to  an  involuntarily  procured          confession,  (understandable as "I did it, but I don't want to go          to jail"), the admission of which entitles him to habeas relief.            A federal court reviewing  the voluntariness of statements must          make a  determination independent from  that of the  state court.          Arizona  v. Fulminante,     U.S.     ,    , 111 S. Ct. 1246, 1252          _______     __________  ___      ____  ___          (1991); Miller  v. Fenton, 474 U.S. 104, 112 (1985).  The test is                  ______     ______          whether the  totality of circumstances  supports a finding,  by a          preponderance of  the evidence, that defendant's  statements were                                    ____________________             7Before  admitting  inculpatory  statements  made by  a  criminal        defendant,  Massachusetts   courts  must  make  a   finding  that  the        statements  were   made   voluntarily  beyond   a  reasonable   doubt.        Commonwealth v. Day,  444 N.E.2d 384, 387 (Mass. 1983).   As a result,        ____________    ___        the trial  court admitted  these statements only  after it  determined        beyond  a reasonable doubt that  the statements were made voluntarily.        The court also submitted the voluntariness question to the jury, which        implicitly found the statements voluntary beyond a reasonable doubt.            "the  product of a free and rational  will."  Fenton, 474 U.S. at                                                        ______          110.            Application  of  these   principles  makes   short  shrift   of          Nadworny's claim.   Nadworny has  pointed to no  evidence in  the          record to show  that he lost volitional control or  that his will          was overborne.8   Moreover, his telephonic  conversation with the          officer can hardly be described as a setting which was inherently          coercive.  At any point in this conversation, Nadworny could have          ended the questioning  simply by  hanging up the  telephone.   We          agree with the district court's finding that Nadworny made  these          statements voluntarily.            2.  The Handwriting Exemplar            2.  The Handwriting Exemplar            ____________________________            As  evidence of  motive, the  prosecution introduced  a letter,          allegedly written by Nadworny  to Belmonte, containing statements          which tended to show  Nadworny's disappointment and anger  at her          for  ending their relationship.  This letter was authenticated by          a  handwriting   expert  whose  testimony  was   based  upon  two          handwriting exemplars  Nadworny furnished to the state.   Each of          the   exemplars  contained  a  statement  requiring  Nadworny  to          indicate whether he was right or left-handed, and whether he used                                    ____________________             8As  the  only  support  for his  assertion  of  involuntariness,        Nadworny cites  the officer's statement to him that his family was "in        back of him and  loved him."  Nadworny characterizes this statement as        evidence  that the  officer "coaxed,  cajoled, and  intentionally took        advantage of Nadworny's feelings of isolation, and confusion  . . . ."        We  agree with the district court's conclusion that, while the officer        may have  "exerted some subtle psychological  pressure on Nadworny[,]"        Nadworny,  744 F.  Supp. at  1201, the  officer's behavior was  not so        ________        coercive  as  to weaken  Nadworny's  will  and render  his  statements        involuntary.          his  dominant hand  to  pen  the  exemplar.   Because  Nadworny's          submissions revealed that he  was right-handed, he maintains that          the  exemplars were  testimonial and  violative of  his privilege          against self-incrimination.              In essence, Nadworny is arguing  that without knowledge of  his          right-handedness, the expert could not have identified the letter          as one written by  him.  The expert's trial  testimony describing          the process he used  to identify Nadworny's handwriting contained          no references, however, to left or right-handedness.  Thus, it is          not clear that Nadworny's argument has any factual support.              Moreover, the  prosecution  introduced sufficient  evidence  --          other than the  letter -- to show that  Nadworny was disturbed by          Belmonte's decision to end their relationship.  See Nadworny, 486                                                          ___ ________          N.E.2d at 684.  As  the letter was cumulative on the  question of          motive, we  therefore agree with the  district court's conclusion          that, even if  erroneous, the admission  of this "testimony"  was          harmless beyond a  reasonable doubt.  See Chapman  v. California,                                                ___ _______     __________          386 U.S. 18, 22 (1967).9                                    ____________________             9While  we agree  with the  district court's conclusion  that the        admission of the exemplars was harmless, we note our disagreement with        the  reasoning  relied upon  by the  district  court in  reaching that        conclusion.   The district court  reasoned: "On this  record, there is        not the  slightest suggestion  that, had Nadworny's  objection to  the        testimonial aspect  of the exemplars been  sustained, the Commonwealth        would  have been unable to provide an eyewitness to testify concerning        which hand Nadworny had used to prepare the exemplars."  Nadworny, 744                                                                 ________        F. Supp. at 1203.  The record reveals, however, that the prosecution's        eyewitness did testify at trial but did not mention Nadworny's left or        right-handedness.   Thus, it was pure  speculation on the part  of the        district court to  presume that the  eyewitness would have  remembered        which hand  Nadworny used  to  write the  exemplars.   In essence,  by        resting  its harmless error holding  on the lack  of a "suggestion" in                                                    ____  __ _ ____________        the  record  that the  Commonwealth would  have  been unable  to prove                                                              ______  __ _____        Nadworny's   right-handedness,  the   district   court  relieved   the        Commonwealth of its burden of proof on the authentication question.          II.  Conclusion          II.  Conclusion          _______________            In sum, we find unpersuasive  Nadworny's four challenges to the          district  court opinion.    Accordingly, we  affirm the  district          court's decision not to issue a writ of habeas corpus.            We affirm.              We affirm.            __________
