Amirault v. Fair
U.S. Court of Appeals for the First Circuit
Amirault v. Fair
Opinion
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
Reference
- Status
- Published