USCA1 Opinion

February 15, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1668
HERBERT A. FOWLER, II,
Petitioner, Appellant,
v.
WARDEN, NEW HAMPSHIRE STATE PRISON,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
__________________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________
____________________

Jeffrey R. Howard, Attorney General,

and
___________________
Assistant Attorney General, on brief for appellee.

Mark D. Attor
_______________

____________________
____________________

Per Curiam.
__________
the district court's
habeas

corpus.

transcripts,

we

Petitioner Herbert Fowler is appealing

order denying his petition for

After
have

reviewing
concluded

correctly determined that

the
that

record
the

writ of

and

trial

district

court

there are no grounds

for granting

Fowler's request for relief, and so we affirm.

Fowler first claims
permitting the state
to Sergeant
charge
whether

of

defense

measurements
at

the

to pose on re-direct

James Barthelmes,
the

that the trial court

crime scene.
counsel

had

the state
The

or undertake certain

murder scene.

certain questions
police officer

state asked

asked

him

erred by

to

in

Barthelmes

make

certain

studies of evidence found

Fowler alleges

that

the re-direct

examination violated his right to remain silent and suggested

to

the jury

transcript

that he had
shows

a duty

that, during

to produce evidence.
the

The

cross-examination which

preceded the state's re-direct, defense counsel had attempted

to

show

that

Barthelmes

measurements

or

responded by

trying to

studies had been

studies.

should
On

have

performed

re-direct,

show that, if

significant, the

the

such

prosecutor

such measurements

defense could have

or

asked

the police to undertake them itself.

We have no doubt that
to who bore

the jury was not confused as

the burden of proof in this murder trial.

the

court gave preliminary instructions

the

state's

voir-dired
legal

burden of
as to

his or

standards.

juror whether

proof,

he or

After

to the jury pool on

each juror

was individually

her understanding of

the relevant

Defense counsel essentially

queried each

she understood that

presumed innocent, that the state

the defendant

was

bore the burden of proving

the defendant's guilt beyond a reasonable doubt, and that the

defense
evidence

had
on

no obligation
his

own

to

behalf,

testify
and

or to

each

present

juror

any

responded

affirmatively.
Barthelmes,

Moreover, during

which preceded

the

his

cross-examination of

state's re-direct,

defense

counsel had responded to Sergeant Barthelmes's statement that

defense

counsel or

measurements

anyone

else

could

have

obtained

the

from him by reminding Barthelmes (and hence the

jury) that "Sergeant, I don't have to do anything."1

Thus, the
defense

prosecutor's attempt

or studies should

the

defense bore the

The prosecutor

counsel

the

burden of proving

his

for

jury was unlikely

his questioning of

confined his

suggestions
during

suggestions that those measurements

have been made, and the

have understood from

specific

show that

had not sought the measurements or studies responded

to defense counsel's own

to

to

questions on
investigation

cross-examination,

Barthelmes that

Fowler's innocence.
re-direct to
made
made

by
no

the

defense
explicit

____________________
1. We also note that, in his closing, the defense commented
that the jury was "well aware" of the respective burdens of
the parties, and
reminded the jury members
of their
statements on voir dire that they would not expect the
defense to present evidence and would not draw adverse
inferences from Fowler's failure to testify.
The relevant
legal standards were also reiterated in the court's closing
instructions.
-3-

reference

to defendant's

otherwise say
the

police

failure to

or suggest that
to

undertake

testify,

the defense's failure

certain

measurements or

constituted substantive

evidence of guilt.

prosecutor's

examination was

re-direct

response under
(1988)

(the

United States
_____________
prosecutor's

and did

had

studies

lawful and

v. Robinson,
________
comment

to ask

Therefore,

the
fair

485 U.S. 25,

not

not

treated

32
the

defendant's silence as substantive evidence of guilt, but had

referred

to defendant's opportunity

countering

defense counsel's

had not been given

was

a "fair

to testify at

own suggestion

trial in

that defendant

an opportunity to tell his story,

response"

to

defendant's

claim and

and so
did

not

violate the privilege against self-incrimination).

Fowler also claims that it was error for

the court

not to grant his counsel's request for a mistrial or curative

instructions with respect

to Sergeant Barthelmes's responses

on re-direct examination.

As we have said,

the state's re-

direct

Barthelmes

not

examination

of

Accordingly, it was not error

was

improper.

for the trial court to decline

to call a mistrial or to issue curative instructions.

Finally, Fowler says that the re-direct examination
of

Barthelmes, together with certain closing comments by the

prosecution, shifted the burden of proof to him

his

right against self-incrimination.

The

and violated

first allegedly

improper closing

comment

came at

the

very outset

of

the

-4-

prosecutor's closing
jury

whether "the

argument when the prosecutor

defense

reasonable alternative

[has]

to the

evidence in this case points

counsel,
proof

the court

is always

on

defendant does not

presented

you

one conclusion
to?"

reminded

with

any

that all

the

Upon objection by defense

the jury

the State

asked the

in any

"that the

burden of

criminal case.

have to prove his innocence

The

or any other

fact."
The prosecutor's query

to the jury, in

appears

problematic, but context

whether

statements

by

the

is critical in determining

prosecution

have

defendant's privilege against self-incrimination.

States v.
______

isolation,

Lilly, 983 F.2d 300, 307 (1st

_____

violated

See United
___ ______

Cir. 1992).

Here,

the transcript suggests that the prosecutor was responding to

the defense
seriatim

the

counsel's closing
"reasonable

argument, which

doubts" the

defense

had outlined
saw

in the

prosecution's
alternative
murdered

case against Fowler,

scenarios, e.g.,

that a

the victims during

and which
third

had suggested
party may

a robbery attempt,

have

or that the

shotgun shells had been planted at the murder scene after the
murders.

If

response.

so, the comment

was arguably permissible

fair

We need not decide that question, however, because

the trial court promptly instructed the jury as to the burden

of proof

after the

prosecutor's query to

the jury,

and so

cured any constitutional impropriety in his question.

Lilly,
_____

-5-

supra,
_____
court

983 F.2d at 308 (prompt curative instruction from the

may be a

"satisfactory antidote" to

an impermissible

comment by the prosecutor).

The second allegedly
the prosecutor
counsel's

came when

the

specific criticisms

improper closing statement by

prosecutor addressed
of Roger

Klose,

defense

the state's

expert witness who had linked the shotgun shells found at the
murder scene with

Fowler's shotgun.

The

prosecutor pointed

to one of

the defense's arguments -- that

Klose should have

brought photographs showing that marks on the shells found at

the scene

matched marks on

shells fired from

After

explaining why photographs

jury,

the

defense's
pretty

prosecutor
attack on

sorry effort.

call into
defense

said:

would not have

"That's

Roger Klose's

prosecutor to

the

helped the

extent

conclusions

of

the

and it's

The defense has done nothing to try to

question or to demonstrate
counsel

Fowler's gun.

objected,

continue.

thought, commenting that

but

-- ."

the

court

The prosecutor

At

that point,

permitted

the

then finished

his

"[t]he defense has done

nothing to

show that Roger Klose's opinions are anything other than what
they purport to be; valid, accurate conclusions, drawn on the
basis

of training,

context makes clear

place.
criticism

The

experience and

expertise."

Thus,

that no constitutional impropriety

prosecutor

of the state's

was

arguing

that

expert witness had

the

the
took

defense's

not undermined

-6-

the

conclusions reached by the expert; he was not attempting

to suggest that the defense

present evidence

of

had failed in some obligation to

Fowler's innocence.

prosecutor's comments were

Accordingly,

a fair response to

the

the defense's

specific suggestion of weakness in the expert's testimony.

Because we
need

not

consider

find no

merit in

the state's

Fowler's claims,

alternative

Fowler has brought his habeas claims too late.

Affirmed.
_________

-7-

argument

we
that