Gruning v. DiPaolo

United States Court of Appeals
For the First Circuit

No. 02-1341

STEPHEN GRUNING,

Petitioner, Appellant,

v.

PAUL DIPAOLO,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Cyr, Senior Circuit Judge.

Robert L. Sheketoff, for appellant.
James J. Arguin, Assistant Attorney General, Criminal Bureau,
with whom Thomas F. Reilly, Attorney General, was on brief, for
appellee.

November 15, 2002
 TORRUELLA, Circuit Judge. This is an appeal from a

judgment, dismissing petitioner-appellant Stephen Gruning's

application for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 (2000). Petitioner appealed below, and the district court

issued a limited certificate of appealability ("COA") on the issue

of whether the Massachusetts state court violated Gruning's

constitutional rights when it refused to provide Gruning with

exclusive access to the audio recording of his court-ordered

psychiatric examination. For the reasons stated below, we affirm.

I. Background1

On the morning of February 12, 1995, Gruning went to the

apartment of his former girlfriend Rhonda Stuart.2 After breaking

down her front door with a sledgehammer, Gruning shot Stuart,

seriously wounding her, and fatally shot Richard Stuart, her

brother, and Nelson DeOliveira, her boyfriend. A jury sitting in

Essex County Superior Court found Gruning guilty of armed assault

with intent to kill Stuart, second degree felony-murder of Richard

Stuart, manslaughter of DeOliveira, assault and battery by means of

a dangerous weapon, entering a dwelling while armed and using force

therein, and illegal possession of a firearm.

1
For a more detailed description of the circumstances leading up
to petitioner's imprisonment refer to Commonwealth v. Gruning, 710
N.E.2d 621 (Mass. App. Ct. 1999).
2
This petition is governed by the Antiterrorism and Effective
Death Penalty Act (AEDPA). Accordingly, we presume the facts as
determined by the state court are correct. 28 U.S.C. § 2254(e)(1).

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 Following the trial, Gruning unsuccessfully raised

various claims in the Massachusetts Appeals Court, including a

constitutional challenge of the court's refusal to provide the

defense with sole access to the recording of Gruning's psychiatric

evaluation. The Supreme Judicial Court then rejected, without

opinion, further appellate review of Gruning's claims.

Commonwealth v. Gruning, 714 N.E.2d 825 (Mass. 1999). The United

States District Court for the District of Massachusetts, acting on

the recommendation of the magistrate judge, dismissed Gruning's

habeas petition. Subsequently, the district court granted a COA on

the issue of whether the trial court violated Gruning's

constitutional rights when it denied him sole access to an

audiotape of his court-ordered psychiatric examination.3

II. Standard of Review

The government argues that we should apply the

Antiterrorism and Effective Death Penalty Act's (AEDPA) deferential

standard as codified in 28 U.S.C. § 2254 (d)(1)-(2).4 However,

3
This court then denied Gruning's request to expand the COA.
4
AEDPA provides:

(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim--
(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

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section 2254(d) does not apply to this petition because the state

appellate court did not address Gruning's claim that his

constitutional rights were violated when the trial court withheld

the audiotape.5 See Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.

2001) (stating that "AEDPA's strict standard of review only applies

to a 'claim that was adjudicated on the merits in state court

proceedings'" because "we can hardly defer to the state court on an

issue that the state court did not address" (quoting 28 U.S.C.

§ 2254(d))). Consequently, we review Gruning's claim de novo. See

id.

III. Audio Recording of Psychiatric Examination

Prior to trial, Gruning's counsel suggested that there

might be an insanity defense. Accordingly, the court allowed the

(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).
5
Gruning challenged the constitutionality of denying him sole
access to audiotape in his appeal to the Massachusetts Appellate
Court, but the court's discussion of the psychiatric examination
failed to address this issue:

Psychiatric examination. Conceding that Massachusetts
case law is to the contrary, the defendant nonetheless
claims that this court should adopt the dissenting view
in United States v. Byers, 239 U.S. App. D.C. 1, 740 F.2d
1104, 1161-1172 (D.C. Cir. 1984) (Bazelon, J.,
dissenting), that there is a constitutional right to
counsel at the "confrontation" between the defendant and
the psychiatrist. We decline the invitation.

Gruning, 710 N.E.2d at 627 (citations omitted).

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Commonwealth's motion for a psychiatric examination pursuant to

Mass. R. Crim. P. 14(b)(2)(B) (2002). At Gruning's request, the

examination was audio-recorded. The examining psychiatrist

subsequently issued a report to the trial court as required by

Mass. R. Crim. P. 14(b)(2)(B)(iii). The trial judge then ordered

that the report be redacted to prevent disclosure of petitioner's

privileged statements. Gruning requested that the judge release a

copy of the audiotape only to the defense. Analogizing the

recording to a psychiatric report, which Massachusetts law permits

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a judge to release to both parties,6 the trial judge denied

Gruning's request for exclusive access to the tape.

Gruning argues that he and his attorney needed exclusive

access to the audiotape to assist them in making the decision of

whether Gruning should waive his privilege of silence. They claim

that denying them sole access to the tape violated both

petitioner's right against self-incrimination and his due process

right to "the guiding hand of counsel at every step in the

proceedings against him." See Powell v. Alabama, 287 U.S. 45, 69

6
The law provides:

(iii) The examiner shall file with the court a written
psychiatric report which shall contain his findings,
including specific statements of the basis thereof, as to
the mental condition of the defendant at the time the
alleged offense was committed. The report shall be
sealed and shall not be made available to the parties
unless (a) the judge determines that the report contains
no matter, information, or evidence which is based upon
statements of the defendant as to his mental condition at
the time of or his criminal responsibility for the
alleged crime or which is otherwise within the scope of
the privilege against self-incrimination; or (b) the
defendant files a motion requesting that the report be
made available to the parties; or (c) during trial the
defendant raises the defense of lack of criminal
responsibility and the judge is satisfied that (1) the
defendant intends to testify in his own behalf or (2) the
defendant intends to offer expert testimony based in
whole or in part upon statements of the defendant as to
his mental condition at the time of or as to his criminal
responsibility for the alleged crime. If a psychiatric
report contains both privileged and nonprivileged matter,
the judge may, if feasible at such time as he deems
appropriate, make available to the parties the
nonprivileged portions.

Mass. R. Crim. P. 14(b)(2)(B)(iii).

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(1932). Gruning's arguments rely upon an expansive reading of

Brooks v. Tennessee, 406 U.S. 605 (1972). In Brooks, petitioner

successfully argued that a Tennessee statute requiring that a

criminal defendant who wished to testify "do so before any other

witnesses for the defense testify" violated the constitutional

rights of criminal defendants. Id. at 612 (quoting Tenn. Code Ann.

§ 40-2403 (1955)).

The Brooks Court held that forcing the defendant to

testify first, if at all, violated his privilege against self-

incrimination because the rule penalized him for remaining silent

at the close of the state's case by excluding him from the stand

later in the trial. "Pressuring the defendant to take the stand,

by foreclosing later testimony if he refuses, is not a

constitutionally permissible means of ensuring his honesty. . . .

It fails to take into account the very real and legitimate concerns

that might motivate a defendant to exercise his right of silence."

Brooks, 406 U.S. at 611-12. In addition, the Court held that the

statute denied the defendant "the 'guiding hand of counsel' in the

timing of [a] critical element of his defense" because the statute

forced the defendant and lawyer to decide whether the defendant

should testify "without an opportunity to evaluate the actual worth

of their evidence." Id. at 612-13. Crucial to the Court's

decision was the harshness of the penalty; if the defendant did not

testify first, he could not testify at all. Id. at 612.

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 We can discern two arguments from petitioner's citation

to Brooks. First, petitioner has a right to evaluate the evidence

against him before deciding whether to waive his privilege against

self-incrimination. Second, petitioner has a right to have his

attorney evaluate the evidence and assist petitioner in making this

decision. However, these rights to examine the evidence before

waiving privilege are not without bounds, and "the law ordinarily

considers a waiver knowing, intelligent, and sufficiently aware if

the defendant fully understands the nature of the right and how it

would likely apply in general in the circumstances--even though the

defendant may not know the specific detailed consequences of

invoking it." United States v. Ruiz, 122 S. Ct. 2450, 2455-57

(2002) (holding that the "Constitution does not require the

Government to disclose material impeachment evidence prior to

entering a plea agreement with a criminal defendant").

In the case before us, petitioner did not have a

constitutional right to hear the audiotape before deciding if he

wished to waive his privilege against self-incrimination. The

Constitution does not "'require that the police supply a suspect

with a flow of information to help him calibrate his self-interest

in deciding whether to speak or stand by his rights.'" Colorado v.

Spring, 479 U.S. 564, 576-77 (1987) (quoting Moran v. Burbine, 475

U.S. 412, 422 (1986)). "Of course, the more information the

defendant has, the more aware he is of the likely consequences of

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a plea, waiver, or decision, and the wiser that decision likely

will be. But the Constitution does not require the prosecutor to

share all useful information with the defendant." Ruiz, 122 S. Ct.

at 2455. "[A] suspect's awareness of all the possible subjects of

questioning in advance of interrogation is not relevant to

determining whether the suspect voluntarily, knowingly, and

intelligently waived his Fifth Amendment privilege." Spring, 479

U.S. at 577. Without hearing the audiotape, both Gruning and his

attorney understood the nature of petitioner's right against self-

incrimination "and how it would likely apply in general in the

circumstances," thus satisfying constitutional requirements. See

Ruiz, 122 S. Ct. at 2455.

Massachusetts law did give petitioner the opportunity to

hear the audiotape before deciding whether petitioner should waive

his privilege, conditioned upon allowing the prosecution access to

the recording. The defense made the tactical decision to choose

witnesses without listening to the tape, rather than to allow the

prosecution access. We realize that the defense would prefer

exclusive access to the evidence and that, from the defense's point

of view, the mere possession of incriminating evidence by the

prosecution creates a disadvantage for the defense. But the

question we are concerned with is whether this disadvantage rises

to the level of a constitutional infirmity, and we believe that

this type of condition is not the type of coercion or compulsion

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that the Fifth Amendment guards against. See Spring, 479 U.S. at

572-74 (finding that defendant's "allegation that the police failed

to supply him with certain information does not relate to any of

the traditional indicia of coercion: 'the duration and conditions

of detention . . . , the manifest attitude of the police toward

him, his physical and mental state, the diverse pressures which sap

or sustain his power of resistance and self-control'" (quoting

Culombe v. Connecticut, 367 U.S. 568, 602 (1961))). Allowing the

prosecution to hear the audiotape was a mild condition, far removed

from Fifth Amendment compulsion. Gruning could have chosen both to

listen to the audiotape and to invoke his privilege against self-

incrimination. The prosecution would have had possession of

incriminating statements, but could not have used the statements in

court unless the defense put the psychiatric evaluation into issue

by having petitioner or his psychiatric expert testify. Mass. R.

Crim. P. 14(b)(2)(B)(iii). Gruning's decision of whether or not to

waive his privilege against self-incrimination was knowing and

intelligent, and did not require the court to provide him sole

access to the audiotape of his psychiatric examination.

IV. Conclusion

For the reasons stated above, we affirm the judgment of

the district court and dismiss petitioner's application for a writ

of habeas corpus.

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