Nadworny v. Fair
U.S. Court of Appeals for the First Circuit
Nadworny v. Fair
Opinion
USCA1 Opinion
October 5, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1096
WILLIAM NADWORNY,
Petitioner, Appellant,
v.
MICHAEL FAIR, COMMISSIONER
OF CORRECTIONS,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Torruella and Stahl, Circuit Judges,
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and Hornby,* District Judge.
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Charles M. Burnim for appellant.
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LaDonna J. Hatton, Assistant Attorney General, with whom Scott
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Harshbarger, Attorney General, was on brief for appellee.
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* 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.
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Nadworny, 486 N.E.2d 675 (Mass. 1985), cert. denied, 477 U.S. 904
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(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.
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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
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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
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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
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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.
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Fair, 744 F. Supp. 1194, 1214-15 (D. Mass. 1990). After resolving
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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
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essential elements of the crime beyond a reasonable doubt." Wright v.
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West, U.S. , , 112 S. Ct. 2482, 2485-86 (1992) (quoting
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Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original).
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Further, "[t]he evidence may be entirely circumstantial and the
factfinder may choose among reasonable interpretations of it." United
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States v. Plummer, 964 F.2d 1251, 1254 (1st Cir. 1992).
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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
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v. Casale, 408 N.E.2d 841, 845 (Mass. 1980). The evidence before the
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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.
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2As the facts of this case are recorded in exhaustive detail in
the opinions of the Massachusetts Supreme Judicial Court, see
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Nadworny, 486 N.E.2d at 677-82, and the federal district court, see
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Nadworny, 744 F. Supp. at 1197-99, we will repeat only those necessary
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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.
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, , 111 S. Ct. 1859, 1869 (1991).
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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
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Manslaughter
Manslaughter
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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.
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1990) (quoting Pitts v. Lockhart, 911 F.2d 109, 112 (8th Cir.
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1990), cert. denied, U.S. , 111 S. Ct. 2896 (1991)). To
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rise to the level of a due process violation, the refusal to
instruct must "threaten[] a fundamental miscarriage of justice .
. . ." Id.
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In Tata, we found that the trial court's refusal to instruct on
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a lesser included offense did not rise to that level. Id. at
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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
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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
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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.
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We rejected the defendant's argument in Tata on several
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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
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have been inconsistent with defendant's theory of the case,
namely that he never possessed the cocaine at all. Id. at 672-
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73. More importantly, we questioned whether an evidentiary
predicate for the requested instruction even existed. Id. at
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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).
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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
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reveals that even Nadworny's trial counsel found such an
instruction unwarranted. See id. at 1204 ("As to involuntary
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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
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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
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F.2d 491, 494 (1st Cir. 1989). To warrant habeas relief, the
allegedly erroneous exclusion must be "so prejudicial that it
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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
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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.
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Puerto Rico Aqueduct And Sewer Authority, 945 F.2d 10, 12 (1st Cir.
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1991), cert. granted, 60 U.S.L.W. 3482 (U.S. Mar. 9, 1992) (No. 91-
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1010).
amounts to a denial of due process." Fitzgerald v. Armontrout,
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963 F.2d 1062, 1064 (8th Cir. 1992), petition for cert. filed,
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U.S.L.W. (U.S. Aug. 3, 1992) (No. 92-5364).
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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
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Self-Incrimination
Self-Incrimination
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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
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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.
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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
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Malloy v. Hogan, 378 U.S. 1, 6-7 (1964) (holding that the Due Process
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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
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(1991); Miller v. Fenton, 474 U.S. 104, 112 (1985). The test is
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whether the totality of circumstances supports a finding, by a
preponderance of the evidence, that defendant's statements were
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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,
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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
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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
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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
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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
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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
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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,
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386 U.S. 18, 22 (1967).9
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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
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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
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the record that the Commonwealth would have been unable to prove
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Nadworny's right-handedness, the district court relieved the
Commonwealth of its burden of proof on the authentication question.
II. Conclusion
II. Conclusion
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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.
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