Opinion
CIVIL ACTION NO. 97-CV-10905-GAO.
September 28, 2001
MEMORANDUM AND ORDER
Petitioner Wayne L'Abbe was convicted by a jury in the Massachusetts Superior Court of murder in the first degree and sentenced to a term of life in prison without the possibility of parole. The Massachusetts Supreme Judicial Court (SJC) upheld the conviction. Commonwealth v. L'Abbe, 656 N.E.2d 1242, 1244 (Mass. 1995).
In the course of the trial, the jury heard, and presumably credited as true, testimony that L'Abbe stabbed his former girlfriend more than forty times with a "survival knife." After committing the crime, L'Abbe drove the victim in her car to the central parking facility at Logan Airport in Boston. There, he used towels to conceal the body in the automobile and left the scene. L'Abbe fled, going first to New York, then to Kansas and Oklahoma. Along the way, he sent a postcard to his brother indicating where authorities could find the victim's automobile. L'Abbe was ultimately arrested in Nevada by federal agents.
The facts concerning the crime are taken from the opinion by the Supreme Judicial Court. L'Abbe, 656 N.E.2d at 1244 (Mass. 1995).
Through this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, L'Abbe asserts that two constitutional errors occurred at trial: first, the trial judge erred in finding that L'Abbe was competent to stand trial; and second, the trial judge's decision to allow the petitioner to waive his right to be present at the entire trial violated the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution. After hearing and review, this Court finds that both claims lack merit and denies the petition.
Standard of Review
A federal court is authorized to grant an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court only if adjudication of a claim by a state court
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
The focus of this Court's habeas corpus inquiry is on the decision by the SJC. See Williams v. Matesanz, 230 F.3d 421, 425 (1st Cir. 2000) (citing O'Brien v. Dubois, 145 F.3d 16, 20 (1st Cir. 1998)). Habeas corpus relief may be properly granted only if this Court determines the Supreme Judicial Court's holding "deviates from the paradigm described in section 2254(d)." O'Brien, 145 F.3d at 20.
Competency of the Petitioner
The petitioner's competency was an issue during pretrial proceedings and at trial. A criminal defendant's competency is judged by determining if he "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as a factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402 (1960).
Some weeks before trial, a judge of the Superior Court held a competency hearing at which evidence was presented by a psychiatrist that although L'Abbe had trouble communicating with his attorney due to reaction depression he was suffering regarding the crime, he was competent to stand trial. On that evidence, the judge found L'Abbe competent.
After the trial had commenced, the trial judge, concerned about some of L'Abbe's behavior during proceedings, held a second competency hearingsua sponte, at the conclusion of which she concluded that he was competent, if emotionally upset by the necessity of confronting some of the evidence and the prospect of his conviction. In a detailed memorandum, the judge explained her ruling:
Based on my observations during the weeks preceding trial and during trial, and the psychiatric testimony, the court concludes that the prosecution has proven by a preponderance of the evidence that defendant was competent to stand trial under the Dusky standard. The second prong is satisfied as there was absolutely no evidence that L'Abbe lacked a rational as well as factual understanding of the proceedings against him. During the court's numerous and lengthy colloquies with him, he understood the nature of the charges, the differences between first and second degree murder, the ramifications of a finding of not guilty by reason of lack of criminal responsibility and the roles of the judge, jury, and lawyers. [L'Abbe] had no psychosis or delusions, had no major mental illness, was on no medications, and had no history of mental illness.
The closer question involves the first prong of the Dusky test: whether defendant had sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding. Every psychiatrist or psychologist who has testified in connection with this case, Dr. Wesley E. Profit, the psychologist at Bridgewater, Dr. David Rosengard, defendant's psychiatric witness[,] and Dr. David Swenson, the court psychiatrist in Essex County[,] agreed he was competent under both prongs of the Dusky test. [Footnote omitted.] However, they also all agreed that defendant was unwilling to discuss the incident, or his relationship with the victim, with defense counsel or psychiatrists because it was so emotionally painful for him to confront what he did . . . .
The court concludes that the Commonwealth has proven that defendant was competent even under the first prong. While he was unwilling to discuss certain things, and was suffering from reactive depression, which the psychiatrists said was normal under the circumstances, he had the capacity to cooperate in preparing a defense, and to assist defense counsel. For example, he was angry with his attorney for not subpoenaing certain defense character witnesses. He informed [his attorney] of their identity, and at least one was called. Although initially he refused to participate in the jury impanelment, after his discussion with counsel, he changed his mind. The court observed him consulting with his attorney and making observations of the members of the venire. Defense counsel informed the court that he was reviewing all matters with defendant, after he had absented himself from the courtroom, and there were no reports that defendant was uncooperative or unable to assist him on the day to day trial issues. Indeed[,] during the daily colloquies, defendant informed the court he was reading the discovery documents in his cell. Defendant's recalcitrance in refusing to cooperate with defense counsel fully reflects his personal "agenda" of avoiding the painful confrontation with his own actions, not a lack of capacity to assist counsel.
The judge's memorandum was filed after the conclusion of the trial, and so is phrased in the past tense.
Supp. Answer, Defendant's Record Appendix, Commonwealth v. Wayne R. L'Abbe, Supreme Judicial Court No. 6424, at 52-54.
The SJC affirmed the judge's competency finding, stating: "The evidence warranted the finding that the defendant was able to understand the nature and object of the proceedings against him and to assist his counsel in his defense." Commonwealth v. L'Abbe, 656 N.E.2d at 1245.
The petitioner here has not shown that that conclusion was unsound or incorrect. "In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). L'Abbe has not carried that burden. He has not shown that the state court's decision respecting his competency was "a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
The petitioner's argument is that his emotional inability to discuss certain aspects of the crime, or of the evidence to be offered by the prosecution at trial, requires the conclusion that the first prong of theDusky standard was not met: he did not have a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." Dusky, 362 U.S. at 402. The judge's factual findings defeat this argument. She found specifically that he was able to consult with his lawyer on matters of jury selection, calling of defense witnesses, and review of discovery materials. The trial judge concluded that any absence of consultation was not due to an inability but rather a refusal that was the product of the petitioner's purpose to avoid confronting emotional and highly unpleasant matters. On the facts as found, the trial judge correctly and appropriately concluded that the petitioner was competent under the Dusky standard, and the SJC correctly affirmed that ruling.
Finally, there is no suggestion that the SJC misunderstood or misapplied the Dusky standard. Accordingly, the petitioner's conviction did not rest upon a decision that was contrary to or based on an unreasonable application of federal law. 28 U.S.C. § 2254(d)(1).
Waiver of Presence at Trial
L'Abbe's second claim is that in a capital case a defendant may not be permitted to be absent from trial, even if he knowingly and voluntarily waives his right to be present. He appears to argue for an absolute rule: If the defendant is not present at his capital trial, even at his own insistence, the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment are violated.
The relevant facts are undisputed. During a hearing on a pretrial motion to suppress, L'Abbe became very agitated and disruptive when certain details of the crime were presented. After a recess and a colloquy with the defendant, the judge allowed the hearing to continue in L'Abbe's absence. Later, just prior to the beginning of the trial, L'Abbe informed the court that sitting through the trial would be too emotionally traumatic for him to endure. The judge asked if his response at trial would be similar to the disruptive behavior he had exhibited at the previous suppression hearing. L'Abbe stated that he believed he would be disruptive if required to remain in the courtroom. After the impanelment of a jury in his absence, L'Abbe reconsidered his position and asked that a new jury be empaneled in his presence. The judge granted his request, and a new jury was chosen. From that point on, however, L'Abbe was voluntarily absent from the proceedings of the court until sentencing. Each morning before the trial resumed, the judge conducted a colloquy with L'Abbe about his decision to absent himself, and each morning the defendant signed a written waiver of his presence. By his own choice, L'Abbe remained in a holding cell at the courthouse. He now argues that the court could not constitutionally accept his waiver of his right to be present.
The petitioner is entitled to habeas relief on this ground only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state court's decision is "contrary to" Supreme Court precedent either if the state court "arrives at a conclusion opposite to that reached by" the Supreme Court conclusion on a question of law or if the state court "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court's]." Williams v. Taylor, 529 U.S. 362, 405 (2000).
The petitioner recognizes that the Supreme Court has not decided the question whether a capital defendant may not be permitted to waive his presence at trial. The state court's rulings are not, therefore, "contrary" to any Supreme Court precedent. The petitioner cites two Eleventh Circuit opinions in support of his argument, see Hall v. Wainwright, 805 F.2d 945 (11th Cir. 1986); Proffit v. Wainwright, 685 F.2d 1227 (11th Cir. 1982), but under § 2254(d)(1), the inquiry is directed at Supreme Court jurisprudence exclusively.
The question thus becomes whether it would be an "unreasonable application" of Supreme Court precedent to conclude that a defendant in a capital case could not waive his own presence at trial, even knowingly and voluntarily. It is axiomatic that a criminal defendant has the right to be present in the courtroom at every stage of the trial. Illinois v. Allen, 397 U.S. 337, 388 (1970). In varying circumstances in non-capital criminal cases, the Court has upheld convictions where the defendant was not present at all stages of the trial. See Allen, 397 U.S. at 343 (defendant who was warned by the judge that he would be removed from the courtroom if he continued his disruptive behavior waived his right to confrontation as long as he persisted in disrupting the proceedings);Taylor v. United States, 414 U.S. 17, 20 (1973) (defendant's voluntary absence at later stages of trial after his appearance during the initial stages effectively waived his right to confrontation).
The petitioner attempts to make use of a statement in Diaz v. United States, 223 U.S. 442, 455 (1912), where the Court said: "[W]here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in a like manner and with like effect as if he were present." In effect, the petitioner relies on a negative implication from the Court's qualification limiting its ruling to non-capital cases.
The argument is unconvincing. Though the Diaz dictum has sometimes been read as authority for the proposition that a capital defendant may not voluntarily waive his presence at trial, in context the qualification amounts merely to the reservation of a question not presented for decision. More recently, the Court has explicitly reserved a related question. See Drope v. Missouri, 420 U.S. 162, 182 (1975) ("Our resolution of the first issued raised by petitioner makes it unnecessary to decide whether, as he contends, it was constitutionally impermissible to conduct the remainder of his trial on a capital offense in his enforced absence from a self-inflicted wound.") (citing Diaz, 223 U.S. at 445).
Even if the Diaz dictum did state a constitutional rule that state courts are bound to apply, it applies only to cases that are "capital" in the federal meaning of that term. A "capital" offense is one for which the death penalty may be imposed. See also Black's Law Dictionary at 1108 (7th ed. 1999). The federal courts observe this usage. See Beck v. Alabama, 447 U.S. 625, 627-29 (1980). Indeed, several circuits have classified as "noncapital" a case in which, though it was available as a potential penalty, the death penalty was not imposed, limiting the use of the term "capital" to refer to cases in which the death penalty was actually imposed. See Creel v. Johnson, 162 F.3d 385, 390 (5th Cir. 1998): Pitts v. Lockhart, 911 F.2d 109, 112 (8th Cir. 1990); Rembert v. Dugger, 842 F.2d 301, 303 (11th Cir. 1988); Trujillo v. Sullivan, 815 F.2d 597, 602 (10th Cir. 1987).
Though in Massachusetts first degree murder is referred to as a "capital" crime, Massachusetts does not impose the death penalty. See Commonwealth v. Colon-Cruz, 470 N.E.2d 116 (Mass. 1984). On his conviction of first degree murder, L'Abbe was sentenced to life imprisonment. Thus, even if the Diaz dictum should be understood as establishing a constitutional standard, that standard does not apply to L'Abbe's circumstances because L'Abbe's case was not "capital" as Diaz and subsequent federal cases employ that term.
The SJC's conclusion that L'Abbe's constitutional rights were not violated by the trial court's allowance, after thorough inquiry through repeated colloquy, of his voluntary absence from the trial was not unreasonable under existing Supreme Court precedent. It was clearly within "the realm of reasonable outcomes" under that body of precedent.See Matesanz, 230 F.3d at 429. There is no ground for habeas relief under 28 U.S.C. § 2254(d)(1).
Therefore, the petition for a writ of habeas corpus is denied.
It is SO ORDERED.