L'Abbe v. DiPaolo

United States Court of Appeals
For the First Circuit

No. 01-2557

WAYNE R. L'ABBE,

Petitioner, Appellant,

v.

PAUL DIPAOLO, Superintendent, MCI Norfolk,

Respondent, Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before
Torruella, Circuit Judge,
B. Fletcher,* Senior Circuit Judge,
and Lipez, Circuit Judge.

Alan Jay Black, for petitioner, appellant.

Annette C. Benedetto, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, and David O'Sullivan, Legal
Intern, were on brief, for respondent, appellee.

November 19, 2002

________________
* Hon. Betty B. Fletcher, of the Ninth Circuit, sitting by
designation.
 LIPEZ, Circuit Judge. After a Massachusetts Superior

Court jury convicted Wayne L'Abbe of first degree murder for the

1991 death of Cynthia S. Reid, he was sentenced to life

imprisonment without the possibility of parole. Having exhausted

his state court appeals, L'Abbe petitioned the federal district

court for habeas corpus relief under 28 U.S.C. § 2254, claiming

that the trial court violated the Confrontation Clause of the Sixth

Amendment and the Due Process Clause of the Fourteenth Amendment by

allowing him to waive his right to be present at his trial.1 The

district court denied the petition, and we affirm. The decision of

the Massachusetts Supreme Judicial Court (SJC) affirming his

conviction was neither contrary to, nor an unreasonable application

of, clearly established federal law.

I. BACKGROUND

In its opinion on L'Abbe's direct appeal, the SJC

summarized the following facts, which the jury could have found to

be true. See Commonwealth v. L'Abbe, 656 N.E.2d 1242, 1244 (Mass.

1995). On April 26, 1991, after they had ended their romantic

relationship, the petitioner returned Cynthia Reid's bicycle to her

and asked her to give him a ride back to his house. Once there,

1
As petitioner has made no argument that the Due Process
Clause requires an analysis separate from that of the Sixth
Amendment, we will decide the case solely on the grounds of whether
the decision of the Massachusetts Supreme Judicial Court was
contrary to, or an unreasonable application of, the Supreme Court's
Sixth Amendment case law.

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Reid waited in her car while the petitioner went into his house to

look for a receipt for a gift he had given her. Returning to her

car with a "survival knife," the petitioner stabbed Reid repeatedly

in the neck, back, chest, lungs, and heart. He drove her car to

the central parking lot at Logan Airport and parked it there,

leaving her body inside covered with towels. He then fled to New

York, Kansas, Oklahoma, and finally Nevada, where the F.B.I.

arrested him.

After being indicted for murder, the petitioner moved to

suppress certain statements he had made to the police, as well as

physical evidence that had been seized from his truck. At a

pretrial hearing on this motion, held a few days before the trial

began, the petitioner "had an emotional outburst, after which he

refused to return to the courtroom." Id. at 1243. The court

psychiatrist evaluated the petitioner. Based on this evaluation,

the judge found that the petitioner was competent to waive his

right to presence, and she permitted him to remain outside the

courtroom for the rest of the suppression hearing. Id. On the

next day of court, which was set for jury empanelment, the

petitioner again asked to be excused from the courtroom. The judge

conducted a colloquy with the petitioner, and again determined that

his waiver of presence was knowing and voluntary. She then excused

the petitioner, and empaneled a jury in his absence. Id. On the

next court day, the petitioner again appeared in court and

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requested that a new jury be empaneled in his presence. The judge

agreed, and empaneled and swore in a new jury. As soon as that

process was completed, the petitioner again asked to be excused

from court. The judge again agreed, after determining that the

petitioner was intelligently waiving his right to presence. Id.

On each subsequent day of the trial, the petitioner

appeared in court and asked if the court would excuse him from the

proceedings. Every day the same procedure was repeated, with the

judge conducting an extensive colloquy with the petitioner

regarding his desire to absent himself from his trial. She asked

him to sign a written waiver notice. Every day, the judge found

L'Abbe was voluntarily and intelligently waiving his right to be

present, and excused him from court. Id. The judge also

instructed the jury not to speculate on the reasons for the

petitioner's absence from the courtroom, telling them it had

nothing to do with disruptive behavior and that it should have no

effect on their determination of the petitioner's guilt or

innocence. Id. at 1244. The jury found L'Abbe guilty of first

degree murder.

The petitioner appealed his conviction to the SJC,

claiming that he could not waive his right to be present at a

capital trial.2 The court affirmed his conviction, holding that

2
L'Abbe cited four other grounds for reversal in his state
court appeal, none of which were successful, and none of which are
at issue in this appeal. Id. at 1243.

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the trial judge "was correct in accepting the defendant's waiver of

his right to be present during trial." Id. at 1246. Petitioner

filed a timely habeas petition in the district court for the

District of Massachusetts, asserting the Sixth Amendment argument.

The court held that the SJC's decision was neither contrary to, nor

an unreasonable application of, federal law, and therefore found no

grounds to issue the writ. Petitioner now appeals.

II. THE HABEAS STANDARD

A federal court may grant habeas relief to a state

prisoner if it finds, inter alia, that the state court adjudication

"resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law...."

28 U.S.C. § 2254(d)(1). Subsection (1) "defines two categories of

cases in which a state prisoner may obtain federal habeas relief

with respect to a claim adjudicated on the merits in state court."

Williams v. Taylor, 529 U.S. 362, 404-05 (2000). A state court

decision is "contrary to" clearly established federal law if it

"applies a rule that contradicts the governing law set forth in

[the Supreme Court's] cases." Id. at 405. A state court decision

involves an "unreasonable application" of clearly established

federal law if "the state court identifies the correct governing

legal principle from [Supreme Court] cases but unreasonably applies

it to the facts" of the prisoner's case, or if the state court

either "unreasonably extends a legal principle from [Supreme Court]

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precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply." Id. at 407. In either case, the state

court's determination cannot simply be incorrect -- it must be

unreasonable. Id. at 411.

The "threshold question" under § 2254(d)(1) is whether

the petitioner "seeks to apply a rule of law that was clearly

established at the time his state-court conviction became final."

Id. at 390. The petitioner claims that under the Confrontation

Clause of the Sixth Amendment, he could not waive presence at his

capital trial. After reviewing the Supreme Court's decisions on

the scope of the Confrontation Clause, we conclude that the Supreme

Court has not clearly established an unwaivable right of presence

at a capital trial. By contrast, we conclude that the Supreme

Court has clearly established the principle that a defendant in a

noncapital case can waive his right to be present at trial. We

explain below the significance of these conclusions for the habeas

analysis.

III. THE CONFRONTATION CLAUSE

A. The SJC's decision

On direct appeal, the SJC addressed the petitioner's

argument that he could not waive his right to be present at his

capital trial. In his argument to that court, L'Abbe relied on two

nineteenth-century Supreme Court cases, Lewis v. United States, 146

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U.S. 370 (1892), and Hopt v. Utah, 110 U.S. 574 (1884), which

suggested that there is a nonwaivable right of presence generally

in a criminal case, for his argument that the right to presence is

not waivable in a capital case. In response, the SJC found that

the Supreme Court had rejected those holdings in subsequent

noncapital cases. It then took notice of the Court's observation

in Snyder v. Massachusetts, 291 U.S. 97 (1934), that "the privilege

to confront one's accusers 'may be lost by consent or at times even

by misconduct.'" L'Abbe, 656 N.E.2d at 1246 (quoting Snyder, 291

U.S. at 106). On this basis, the SJC found that there was no

Supreme Court case holding that a defendant in a capital trial

cannot also waive his right to presence. L'Abbe, 656 N.E.2d at

1246.

Looking to other courts that had addressed the same

argument, the SJC agreed with the Ninth Circuit's decision in

Campbell v. Wood, 18 F.3d 662 (9th Cir. 1994), that "[t]here is no

principled basis for limiting to noncapital offenses a defendant's

ability knowingly, voluntarily, and intelligently to waive the

right of presence." L'Abbe, 656 N.E.2d at 1246 (quoting Campbell,

18 F.3d at 672) (internal quotation marks omitted). It therefore

concluded that the trial judge did not err when she allowed L'Abbe

to absent himself voluntarily and knowingly from his trial.3

3
In addressing his Sixth Amendment argument, the SJC treated
L'Abbe as if he were a "capital" defendant. In Massachusetts, a
defendant is charged with a capital crime if he is charged with

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 B. "Contrary to ... clearly established Federal law"

The Sixth Amendment states that "[i]n all criminal

prosecutions, the accused shall enjoy the right ... to be

confronted with the witnesses against him...." U.S. Const. amend.

VI. Consequently, "[o]ne of the most basic of the rights

guaranteed by the Confrontation Clause is the accused's right to be

present in the courtroom at every stage of his trial." Illinois v.

Allen, 397 U.S. 337, 338 (1970) (citing Lewis v. United States, 146

U.S. 370 (1892)). This right, however, is not absolute. In

Snyder, as already noted, the Court held that a defendant may lose

his right to personally confront witnesses "by consent or at times

even by misconduct." 291 U.S. at 106. Addressing the loss of this

right in a number of factual situations, the Court held that the

defendants involved could constitutionally waive their presence.

See Taylor v. United States, 414 U.S. 17, 20 (1973) (upholding the

constitutionality of Fed. R. Crim. P. 43, which provides that

defendant's voluntary absence will not prevent continuing trial);

first-degree murder, even though the death penalty is not
available. For the purpose of the constitutional analysis required
here, petitioner urges us to define a capital offense as one for
which a state imposes its most severe penalty -- life imprisonment
without the possibility of parole, the sentence imposed on L'Abbe.
The government argues that a capital offense within the federal
meaning of the term requires death as a possible penalty. We need
not decide that question. Instead, we will assume arguendo that
L'Abbe's conviction of a crime punishable by the state's most
severe penalty of life imprisonment without parole qualifies as a
"capital" conviction as contemplated by the Supreme Court in its
Sixth Amendment jurisprudence.

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Allen, 397 U.S. at 343 (holding that a defendant can lose his right

to be present at trial by engaging in disruptive behavior in the

courtroom); Diaz v. United States, 223 U.S. 442, 455 (1912) (citing

"prevailing rule" that a defendant who voluntarily absents himself

from his trial waives his right to be present).

The petitioner maintains that the holdings in the above-

cited cases do not bear directly on his case because (1) none of

the defendants in the above-cited cases were being tried on capital

charges, and (2) the defendant in Allen was too disruptive to

remain in the courtroom. The petitioner insists that his

Massachusetts charges should be considered capital charges, and

that the Supreme Court has made clear that there is a "significant

constitutional difference" between capital and noncapital trials,

see Beck v. Alabama, 447 U.S. 625, 637 (1980). He adds that,

unlike the defendant in Allen, he was not disruptive during the

court session.

Although he argues these distinctions, the petitioner

also acknowledges, as he must, that the Supreme Court has never

directly ruled on the issue of whether a criminal defendant can

waive his right to presence in a capital case. In fact, the Court

specifically reserved this question in Drope v. Missouri: "Our

resolution of the first issue ... 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 ...

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absence...." 420 U.S. 162, 182 (1975). The Court's own

acknowledgment that the issue remains unresolved precludes any

argument that the SJC's decision that a capital defendant in

Massachusetts can waive his right to presence in a capital case was

contrary to clearly established Supreme Court precedent.4

C. "Unreasonable application of clearly established Federal law"

4
At least one Court of Appeal has held that the Supreme
Court's decisions in Diaz and Hopt established that a capital
defendant cannot waive his right to presence. Proffitt v.
Wainwright, 685 F.2d 1227, 1257 (11th Cir. 1982). Reviewing the
case law, the Eleventh Circuit observed that these two "early
Supreme Court cases" held that "the right to presence in capital
cases is so fundamental that the defendant cannot waive it." Id.
at 1257. The waiver the Court allowed in Allen for disruptive
defendants, 397 U.S. at 346, authorized only a "limited exception
to the no-waiver rule...." Proffitt, 685 F.2d at 1257. For a
defendant who has not been so disruptive that the judge had to
remove him, the court held, the traditional no-waiver rule governs.
Id. at 1258.
We disagree with this analysis. As discussed above, a number
of later Supreme Court cases sow doubt that the "broad dicta" of
Hopt limits waiver to only noncapital defendants. Allen, 397 U.S.
at 342; see also Snyder, 291 U.S. at 117 n.2 ("What was said in
Hopt v. Utah ... on the subject of the presence of a defendant was
dictum, and no more."). These subsequent interpretations of the
right to presence, along with the explicit reservation of the
question in Drope, 420 U.S. at 182, preclude any conclusion that
Hopt clearly establishes a defendant's nonwaivable right to
presence at a capital trial. Moreover, there are numerous
authorities that agree with the SJC that a capital defendant can
voluntarily waive his confrontation right at certain stages of his
trial. See Campbell, 18 F.3d 662, 671-72 (jury empanelling); State
v. Amaya-Ruiz, 800 P.2d 1260, 1283 (Ariz. 1990) (presentence
hearing); People v. Robertson, 767 P.2d 1109, 1133-34 (Cal. 1989)
(sentence reduction hearing); Peede v. State, 474 So.2d 808, 811-15
(Fla. 1985) (trial); cf. 3A Charles Alan Wright, Federal Practice
and Procedure § 723, at 18 n.2 (2d ed. 1982) ("The clear
implication of Illinois v. Allen is that even in a capital case a
defendant who disrupts the courtroom may, if the court chooses, be
excluded from the trial.").

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 Even if a court reviewing a habeas petition finds that a

state court decision was not "contrary to" clearly established law,

it still must reach the question of whether the state court

decision "involved an unreasonable application of ... clearly

established Federal law, as determined by the Supreme Court of the

United States." Williams, 529 U.S. at 404-05. Although the Court

has not ruled on whether a capital defendant can voluntarily waive

his right to presence, it is long established that a noncapital

defendant can do so. See Diaz, 223 U.S. at 455. The Court has

also ruled that a defendant can lose his right to be present at his

trial if his behavior is so disruptive to the process "that his

trial cannot be carried on with him in the courtroom." See Allen,

397 U.S. at 342-43. The outstanding question, then, is whether the

SJC's extension of these principles to the petitioner's "capital"

case was "unreasonable."

An "unreasonable application" of precedent "is different

from an incorrect or erroneous application." Williams, 529 U.S. at

412 (emphasis omitted). In McCambridge v. Hall, 303 F.3d 24, 36

(1st Cir. 2002), we concluded that "if it is a close question

whether the state decision is in error, then the state decision

cannot be an unreasonable application." Id. Although the court

will require some increment of incorrectness beyond error, "[t]he

increment need not necessarily be great, but it must be great

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enough to make the decision unreasonable in the independent and

objective judgment of the federal court." Id.

The petitioner argued that the facts of his case are

fundamentally different from those presented in Diaz, Allen or

Taylor. He was being tried on capital charges, and he neither

disrupted the court proceedings nor absconded during trial without

warning. The petitioner "merely asked not to be present," thereby

leaving the court the choice of whether to excuse him, or to force

him to remain in court and wait to see what happened. In rejecting

the defendant's argument that the trial court's decision was in

error, the SJC adopted the Ninth Circuit's language as its own:

There is no principled basis for limiting to
noncapital offenses a defendant's ability
knowingly, voluntarily, and intelligently to
waive the right of presence. Nor do we find
logic in the proposition that a right that may
be waived by disruptive behavior cannot be
waived by an affirmative petition freely made
and based on informed judgment.

L'Abbe, 656 N.E.2d at 1246 (citing Campbell, 18 F.3d at 672). Far

from being an unreasonable application of federal law, this

proposition is eminently sensible, as demonstrated by the facts of

this case.

L'Abbe insisted that he would become disruptive if forced

to sit through his trial. If the court could not have granted his

request to absent himself, after the thorough inquiry the court

pursued each day, it would have had to wait until he actually

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became disruptive, and perhaps discredited himself in the eyes of

the jury by such behavior. Moreover, there might have been the

spectacle of forcible removal from the courtroom, or of a defendant

physically restrained in his seat. As the Court recognized in

Allen, "[i]t is essential to the proper administration of criminal

justice that dignity, order, and decorum be the hallmarks of all

court proceedings in our country." 397 U.S. at 343.

In L'Abbe's trial, the judge gave voice to L'Abbe's

choice to absent himself from the trial. The SJC recognized that

in the circumstances of this case, there was no reason to limit the

right of a voluntary and knowing waiver of presence to noncapital

defendants. There was nothing unreasonable about the extension of

the principle of waiver of presence, well-established in the

noncapital context, to this capital case. Accordingly, the

district court's decision denying the writ is AFFIRMED.

So ordered.

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