Citations
- 744 F. Supp. 1194
Full opinion text
MEMORANDUM AND ORDER
YOUNG, District Judge.
1. BACKGROUND
On June 8, 1983, an Essex County Grand Jury indicted William Nadworny (“Nadwor-ny”) for the first degree murder of Lisa Belmonte (“Ms. Belmonte” or “victim”) on a date sometime between March 18, 1982 and July 19, 1982. Pre-trial proceedings were held before Justice Andrew R. Lin-scott of the Massachusetts Superior Court and trial came on before Justice Robert Barton of that court, sitting with a jury. The jury convicted Nadworny of second degree murder on June 12, 1984, and Mr. Justice Barton sentenced him to a term of life imprisonment at the Massachusetts Correctional Institute at Cedar Junction. The Massachusetts Supreme Judicial Court granted direct appellate review and, on December 11, 1985, affirmed the conviction. Commonwealth v. Nadworny, 396 Mass. 342, 486 N.E.2d 675 (1985). Nadworny filed a timely Petition for Rehearing, which the Supreme Judicial Court denied on February 10, 1986. Nadworny then filed a petition for writ of certiorari in the United States Supreme Court. That petition was denied on June 23, 1986. Nadworny v. Massachusetts, 477 U.S. 904, 106 S.Ct. 3274, 91 L.Ed.2d 564 (1986).
On November 10, 1987, Nadworny filed this habeas petition in which he claimed the following six constitutional grounds for relief: 1) denial of due process because there was insufficient evidence to convict (“Ground One”); 2) denial of due process by reason of misapprehension of the Supreme Judicial Court of facts critical to the requirement of a lesser included offense instruction of manslaughter (“Ground Two”); 3) denial of due process in the refusal of an instruction on the lesser included offense of manslaughter (“Ground Three”); 4) denial of due process and compulsory process by the exclusion of evidence tending to give the reason for making a certain statement (“Ground Four”); 5) erroneous introduction of statements obtained in violation of his right against self-incrimination (“Ground Five”); and 6) erroneous introduction of a letter which was authenticated in a manner that violated his right against self-incrimination (“Ground Six”).
On December 3, 1987, the Court ordered the Commissioner to file an answer to the habeas petition. The Commissioner answered on January 26, 1988, maintaining that Nadworny had failed to exhaust all of the post-conviction state remedies available to him and that, therefore, petitioner’s procedural default barred habeas review of three of his six claims. The Court accepted the position of the Commissioner and, in an opinion dated May 19, 1989, dismissed the petition on the grounds that Nadworny had not exhausted post-conviction state remedies with respect to Grounds One, Two, and Three. Nadworny v. Fair, 685 F.Supp. 20, 23 (D.Mass.1988), rev’d, Nadworny v. Fair, 872 F.2d 1093 (1st Cir.1989). Nadworny appealed the dismissal, asserting that, with respect to Grounds One, Two, and Three, he had exhausted all of the post-conviction state remedies available to him. On April 20, 1989, the First Circuit ruled that this Court had misapplied the test for exhaustion of state remedies and remanded petitioner’s case for further proceedings on the merits. Nadworny v. Fair, 872 F.2d 1093, 1103 (1st Cir.1989).
Upon remand, this Court ordered further briefing and heard arguments on the merits of the petitioner's claims. A careful review of the record thus developed permits resolution of five of the six claims in favor of the Commissioner but, in view of intervening legal developments, requires still further briefing on one claim.
II. DISCUSSION
A. Sufficiency of Evidence
Nadworny’s first ground is that there was insufficient evidence to convict him of second degree murder. Specifically, he maintains that there was insufficient evidence to allow a jury to find beyond a reasonable doubt that he caused the death of Ms. Belmonte with malice aforethought or indeed that there was any criminal agency by him in her death sufficient to support a finding of any type of homicide.
In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court articulated the standard to be applied in a federal habeas proceeding when the claim is made that a person has been convicted in a state criminal proceeding upon insufficient evidence. That standard is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. at 2789. With respect to the manner in which a federal habeas court must analyze the sufficiency of evidence, the Supreme Court held that “the standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Id. at 324 n. 16, 99 S.Ct. at 2792 n. 16. Finally, when applying the standard, “[a] federal court has a duty to assess the historic facts_” Id. at 318, 99 S.Ct. at 2788.
Massachusetts defines the substantive elements of murder by statute in the following manner:
Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree. Murder which does not appear to be in the first degree is murder in the second degree_ The degree of murder shall be found by the jury.
Mass.Gen.Laws Ann. ch. 265, sec. 1 (West 1970). The Supreme Judicial Court of Massachusetts has further defined second degree murder by holding that “the Commonwealth must prove that there was an unlawful killing with malice aforethought.” Commonwealth v. Begin, 394 Mass. 192, 197 474 N.E.2d 1120 (1985) (citing Commonwealth v. McCauley, 355 Mass. 554, 559, 246 N.E.2d 425 [1969]). In addition, the Supreme Judicial Court has held that “[t]he malice aforethought necessary for second degree murder requires a finding that the defendant intended to inflict injury on the victim without legal excuse or palliation.” Commonwealth v. Estremera, 383 Mass. 382, 394, 419 N.E.2d 835 (1981) (citing Commonwealth v. McGuirk, 376 Mass. 338, 344-45, 380 N.E.2d 662 [1978], cert. denied, 439 U.S. 1120, 99 S.Ct. 1030, 59 L.Ed.2d 80 [1979]). Finally, while intent to kill is not a necessary element of second degree murder, Begin, 394 Mass, at 197, 474 N.E.2d 1120, “at the very least [the defendant] must have intended ‘to do an act creating a plain and strong likelihood that death or grievous harm will follow.’ ” Estremera, 383 Mass, at 395, 419 N.E.2d 835 (quoting Commonwealth v. Huot, 380 Mass. 403, 408, 403 N.E.2d 411 [1980]) (overruled on other grounds by Commonwealth v. Bray, 407 Mass. 296, 553 N.E.2d 538 [1990]). In sum, under Massachusetts law, there are three essential elements of the crime of second degree murder: (1) there must be an unlawful killing, (2) the killing must be committed by the defendant, and (3) the killing must be committed with malice aforethought.
As to whether there has been an unlawful killing, the Commonwealth produced sufficient evidence, when viewed in the light most favorable to the prosecution, to enable a rational factfinder to find beyond a reasonable doubt that Ms. Belmonte had been killed. First, the Commonwealth provided at trial four witnesses, each of whom testified to the effect that Ms. Bel-monte was at Nadworny’s apartment on the evening of her disappearance. Second, the Commonwealth provided testimony tending to show that Nadworny himself had acknowledged that Ms. Belmonte’s death had occurred in his apartment on the night of her disappearance. Third, another witness testified that Nadworny had told him that the Commonwealth’s evidence against him included “blood stains from Lisa’s body” found on his apartment floor, thus allowing the jury to infer that the stain on the rug in Nadworny’s apartment was Ms. Belmonte’s blood.
In addition, a rational factfinder could find beyond a reasonable doubt that the cause of Ms. Belmonte’s death was neither natural causes nor accident nor suicide. With respect to Ms. Belmonte’s health, there was nothing in the testimony of any of the witnesses who knew her while she was alive to the effect that she was in ill health. While there was testimony that Nadworny had told Patricia Flynn that Ms. Belmonte had “shot up” insulin and that there was a family history of diabetes, Ms. Belmonte had tested negative for diabetes on September 24, 1981, less than six months prior to her disappearance. Dr. Butt, the pathologist who examined Ms. Belmonte’s body, testified that it was extremely unlikely that she had died of natural causes. Dr. Butt testified further that there was no evidence of either major trauma to the body or pills in her stomach, thus tending to rule out that Ms. Belmonte’s death had been due to an accident. Although there was testimony that Nadwor-ny had told his friends that Ms. Belmonte had “overdosed,” and it is possible that any evidence of pills in the victim’s stomach could have disappeared by the time her body was found, such evidence does not compel the conclusion that the victim died from a drug overdose. Finally, a rational factfinder could properly find that Ms. Bel-monte’s death had not been caused by suicide, because each witness who testified concerning her state of mind just prior to her disappearance observed that she was alert, friendly, and functioning well in all areas with excellent morale.
Also, there was sufficient evidence to permit a rational factfinder to find beyond a reasonable doubt that Nadworny had been the one who killed Ms. Belmonte. First, the jury could believe that Nadworny had a motive to kill Ms. Belmonte because there was evidence that Ms. Belmonte intended to end her relationship with Nad-worny on March 18, 1982, the night she went to visit him. Moreover, there was evidence that Nadworny was still in love with Ms. Belmonte and now felt “used.” Second, there was evidence from which the jury could conclude that Nadworny was the only one present when Ms. Belmonte died. Third, there was a great deal of evidence which tended to show that from the time Ms. Belmonte met her death until the time her body was discovered, Nadworny had been concealing her body, thus allowing the jury to infer that he had been attempting to conceal a criminal act. Fourth, there was testimony that Nadworny had asked a friend to “alibi” for him, again allowing a rational factfinder to conclude that he had been attempting to conceal a criminal act. Fifth, there was testimony that Nadworny had told inconsistent stories both about Ms. Belmonte’s condition on the day she disappeared and about her whereabouts after her disappearance, again allowing the inference that he was trying to conceal a criminal act. When the evidence is viewed in the light most favorable to the prosecution, it is sufficient to permit a rational factfinder to find beyond a reasonable doubt not only that Ms. Belmonte had been killed but also that she had been killed by Nadworny in his apartment when no one else was present.
After viewing the evidence in the light most favorable to the prosecution, the Court concludes that a rational factfinder could have found beyond a reasonable doubt that the defendant had the requisite mental state, i.e., malice aforethought. First, as the Court has already held, supra, a rational factfinder could have found beyond a reasonable doubt that Nadworny had killed Ms. Belmonte in his apartment while they were the only ones present. From this finding, a factfinder could find further that Nadworny had intentionally caused her death, thus supporting a finding of malice aforethought. Second, a rational factfinder could have found that Nadworny had intended to harm Ms. Belmonte “from the testimony concerning ... the disposal of the evidence [i.e., the victim’s body].” Commonwealth v. Amazeen, 375 Mass. 73, 81, 375 N.E.2d 693 (1978). In sum, after viewing the evidence in the light most favorable to the Commonwealth, the Court holds that there was sufficient evidence to allow a rational factfinder to find beyond a reasonable doubt that Nadworny unlawfully killed Ms. Belmonte with malice aforethought.
B. Adequacy of Appellate Review
Nadworny’s second ground is that, in reviewing his conviction, the Supreme Judicial Court failed to consider fully several theories supporting an involuntary manslaughter instruction. Specifically, Nad-worny points out that the Supreme Judicial Court’s recitation of the facts contains one “clear error” and one “significant” omission. Petitioner’s Memorandum of Law on the Merits of his Grounds for Granting His Petition for Writ of Habeas Corpus at 5.
The short answer to this contention is that it is simply not a claim upon which relief may be granted. Application of Gordon, 157 F.2d 659 (9th Cir.1946) (habe-as corpus not available for relief from alleged misstatement of facts by a state appellate court); White v. Beto, 213 F.Supp. 592, 595 (S.D.Tex.1963), aff'd, 322 F.2d 214 (5th Cir.1963), cert. denied, White v. Beto, 376 U.S. 925, 84 S.Ct. 687, 11 L.Ed.2d 620 (1964) (“[Ajppeal, or a defect in perfecting or prosecuting an appeal, is not a necessary element of ‘due process of law’ which lays the basis for discharge on habeas corpus.”) (citing Casebeer v. Hudspeth, 114 F.2d 789 [10th Cir.1940]). Indeed, there is no federal right to any state appellate review of a state criminal conviction. Estelle v. Dorrough, 420 U.S. 534, 536, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975); Griffin v. Illinois, 351 U.S. 12, 21, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956) (Frankfurter, J., concurring) (“[D]ue process of law does not require a State to afford review of criminal judgments.”). Accordingly, even if the Supreme Judicial Court misstated the facts of record in its decision — a matter as to which this Court expresses no opinion — a petition for habeas corpus affords no relief.
C. Exclusion of Evidence
As his fourth ground, Nadworny maintains that the Justice of the Superior Court excluded admissible evidence and as a result denied him his constitutional right to compulsory process and a fair chance to maintain his defense. In order to show Nadworny’s consciousness of guilt, the Commonwealth put on testimony that the defendant had told Earl Bethune that the victim had been seen after her disappearance in New Hampshire hijacking trucks. Nadworny attempted to rebut any inference that this remark was evidence of his consciousness of guilt by offering his father’s testimony that he had told Nadwor-ny that a police officer had told him that the victim had been seen in New Hampshire hijacking trucks. The trial court, however, refused to admit the testimony of petitioner’s father on this subject.
To determine whether a claim based on an alleged error in an evidentiary ruling is cognizable in a habeas proceeding, this Court must consider whether the alleged error was of “sufficient impact to constitute a denial of due process.” Niziolek v. Ashe, 694 F.2d 282, 287 (1st Cir.1982); see also Collins v. Scully, 755 F.2d 16, 18 (2d Cir.1985) (error must be “so pervasive as to have denied him a fundamentally fair trial”) (citations omitted); Urquhart v. Lockhart, 726 F.2d 1316, 1318 (8th Cir.1984) (“The admission of the challenged testimony ... was not so prejudicial so as to deny ... due process.”); Brinlee v. Crisp, 608 F.2d 839, 850 (10th Cir.1979), cert. denied, Brinlee v. Crisp, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980) (“State court rulings on the admissibility of evidence may not be questioned in federal habeas proceedings unless they render the trial so fundamentally unfair as to constitute a denial of federal constitutional rights.”) (citations omitted). If the proffered evidence is cumulative, then petitioner has not suffered a denial of his due process rights. See Salemme v. Ristaino, 587 F.2d 81, 86 (1st Cir.1978) (where erroneously admitted evidence was merely cumulative, claim does not reach the constitutional threshold required for habeas relief).
Assuming arguendo that the trial court erred in excluding petitioner’s father’s proffered testimony, this Court holds that petitioner does not state a claim cognizable in a habeas corpus proceeding, because the evidence excluded would, at best, merely have rebutted one aspect of consciousness of guilt evidence that was itself already cumulative. If Nadworny’s father’s testimony had been admitted, the best petitioner could have hoped for was that it would have completely rebutted any inference of consciousness of guilt resulting from his statement to Earl Bethune that the victim had been seen in New Hampshire hijacking trucks. Even so, there was “ample and substantial additional evidence of consciousness of guilt in this case to remove any possibility of prejudice to the [petitioner].” Nadworny, 396 Mass, at 362, 486 N.E.2d 675. First, Nadworny had asked a witness to “alibi” for him as to his whereabouts on the night of the victim’s disappearance. Second, Nadworny told that same witness not to let visitors into his apartment because they would want to know where the victim was. Third, Nadworny gave a false account of a telephone call ostensibly made by the victim from a motel. Fourth, Nadworny told the manager of his apartment building that he would clean a bin emitting the odor of a dead body. Fifth, Nadworny tried to conceal the dead body in the trunk of his car. Sixth, after being arrested, Nadworny told various people that the victim had died of a drug overdose. In addition, the jury could have inferred that Nadworny was in possession of the victim’s body at the time he told Earl Bethune that she was in New Hampshire hijacking trucks and thus must have known his father’s remark to have been inaccurate. There being in fact no error in the exclusion of such marginally relevant evidence, no habeas corpus relief is warranted on this basis.
D. Statements Made to the Police
Nadworny’s fifth ground is that the justice of the Superior Court violated his Fifth Amendment privilege against self-incrimination by admitting statements he had made to a police officer over the phone. During the conversation in question, the officer had asked Nadworny if he knew the location of the victim. Nadworny answered “she overdosed five months ago” and then immediately said “I don’t want to talk about it.” The officer, however, continued to question petitioner about the victim’s whereabouts. Although he had indicated that he did not want to talk about it, Nad-worny went on to tell the officer that “he did not want to go to jail, that he could not hack it and that he needed time to think and might contact the officer later.” Nadworny maintains that his reply amounted to a confession, understandable as “I did it, but I don’t want to go to jail.” Nadwor-ny further maintains that, given the police officer’s motivation to arrest him, it would be unrealistic to treat the confession as anything but involuntary.
With respect to the issue of whether the Commonwealth violated Nadworny’s right not to incriminate himself, the reasoning in Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), is directly on point:
[Tjhis prohibition [against self-incrimination] not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also “privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”
Id. at 426, 104 S.Ct. at 1141 (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 [1973]). A telephonic interrogation conducted by a police officer investigating a crime fits within the Murphy Court’s definition of an informal criminal proceeding. Moreover, in this ease, Nadworny’s statements were used to incriminate him in a future criminal proceeding, i.e., his trial in the state court. Because petitioner has a Fifth Amendment privilege not to answer the police officer’s questions, it was error for the Superior Court Justice to admit Nadworny’s answers unless, in fact, Nadworny had answered voluntarily, as that judge has concluded.
While a state court’s findings of historical fact are generally entitled to a presumption of correctness under 28 U.S.C. sec. 2254(d), in addressing the issue of the voluntariness of petitioner’s incriminating statements, this Court must make its own determination on an independent review of the record. Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978) (citations omitted); Paxton v. Jarvis, 735 F.2d at 1308 (citations omitted). That review is “essentially one of fact.” Castleberry v. Alford, 666 F.2d 1338, 1342 (10th Cir.1981). While it is probably true that the police officer exerted some subtle psychological pressure on Nadworny (whether intentional or not), this Court, after a thorough and independent review of the written record, finds by a fair preponderance of the evidence that the police officer did not pressure Nadworny to the point that his will was overborne and his statements were involuntary. As both Nadworny and the Commonwealth agree, Nadworny was not in custody. In fact, because Nadworny called the police officer, the officer had no idea where petitioner was during their conversation. This was not a situation in which the police officer, knowing Nadworny’s location, had only to go there to arrest him. Cf Commonwealth v. Burke, 339 Mass. 521, 531-33, 159 N.E.2d 856 (1959) (holding that defendant had the right to refuse to answer questions put to him by police officer who had called him). Moreover, there is nothing in the police officer’s statements to Nadworny that reveal any attempt at coercion. For example, the police officer did not threaten Nadworny with the prospect of prosecution for his role in the disappearance of the victim. Because Nadworny’s statements were voluntary, the trial court judge did not commit error by admitting them.
E. The Handwriting Exemplars
Nadworny’s sixth ground is that the exemplars of his handwriting which were used as evidence against him contained significant testimonial characteristics and thus violated his privilege against self-incrimination. At Nadworny’s trial, a letter purportedly written by him to the victim was authenticated by a handwriting expert who testified on the basis of handwriting exemplars furnished by Nadworny. Each of the two exemplars contained the statement:
The above are samples of my handwriting with my right/left hand. I normally write with my right/left hand.
Nadworny 396 Mass, at 362-63, 486 N.E.2d 675. Nadworny maintains that his exemplars were testimonial in the sense that they revealed that he was right-handed. Moreover, because this information was available to the Commonwealth only through the exemplars themselves, the handwriting expert would not have known whether petitioner was left-handed or right-handed without them. Consequently, it is argued that the expert’s authentication of the letter as written by Nadworny would have been subject to more effective attack had the expert not been in possession of the exemplars.
Although the Court finds no case directly on point, the most logical reading of the cases which have considered handwriting exemplars leads to the conclusion that these exemplars are indeed testimonial. First, in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), the United States Supreme Court reasoned that physical evidence is also testimonial evidence if the “Government is ... relying on the ‘truthtelling’ of the [defendant] to prove the existence of or his access to the [physical evidence].” Id. at 411, 96 S.Ct. at 1581. Here the Commonwealth is relying on the “truthtelling” of Nadworny with respect to whether he is right-handed or left-handed in order to help prove that he was the one who wrote a letter to the victim. Second, while the United States Supreme Court has held that “[a] mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the Fifth Amendment’s] protection,” Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct.1951, 1953, 18 L.Ed.2d 1178 (1967), the content of what was written, i.e., whether petitioner is right-handed or left-handed, is at issue in this case. Therefore, each exemplar is a “communication” within the meaning of Gilbert. See id. at 266, 87 S.Ct. at 1953 (“The [Fifth Amendment] privilege reaches only compulsion of ‘an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications_’”) (quoting Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966).
However, even if the trial justice erred in admitting the exemplars—a point on which this Court expresses no opinion— the admission of these exemplars was harmless beyond a reasonable doubt because the information provided by the exemplars was so readily available to the Commonwealth. Nadworny had furnished the exemplars upon the pre-trial motion of the Commonwealth over his objection. The exemplars were prepared by Nadworny under the supervision of officials of the Commonwealth. On this record, there is not the slightest suggestion that, had Nadwor-ny’s objection to the testimonial aspect of the exemplars been sustained, the Commonwealth would have been unable to provide an eye witness to testify concerning which hand Nadworny had used to prepare the exemplars. Since the Commonwealth clearly would have been able to provide its handwriting expert with the information contained in the exemplars without having had to put them in evidence, their admission, even if erroneous, was harmless beyond a reasonable doubt.
F. Lesser Included Offense Instruction
The Court has reserved the thorniest and most difficult questions until the end of this memorandum. Nadworny’s third ground is that he has, and was denied, a federal constitutional due process right to a lesser included offense instruction for both voluntary and involuntary manslaughter. Under Massachusetts law, petitioner has a right to such a charge “where any view of the evidence will permit a finding that the offence is manslaughter and not murder.” Commonwealth v. Le Page, 352 Mass. 403, 419, 226 N.E.2d 200 (1967). Moreover, to omit such a required instruction is reversible error. Commonwealth v. Martinez, 393 Mass. 612, 473 N.E.2d 167 (1985). The precise issue facing the Court, therefore, is whether any view of the evidence would permit a finding that Nadworny committed either voluntary or involuntary manslaughter instead of murder.
1. Voluntary Manslaughter
Nadworny’s voluntary manslaughter theory is that the jury could have found that he killed Ms. Belmonte in the heat of passion upon adequate provocation, which could have consisted of a physical and verbal attack by the victim. This argument tracks Massachusetts law, which defines voluntary manslaughter as “ ‘a killing from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat.’ ” Commonwealth v. Anderson, 396 Mass. 306, 313, 486 N.E.2d 19 (1985) (quoting Commonwealth v. Walden, 380 Mass. 724, 727, 405 N.E.2d 939 [1980] [citation omitted]).
However, petitioner neglects to consider that, as the Supreme Judicial Court has already ruled, Nadworny, 396 Mass, at 361, 486 N.E.2d 675, there is simply no view of the evidence that would permit a finding that Nadworny killed the victim in the heat of passion upon reasonable provocation and without malice. More specifically, there is absolutely no evidence of any sort that the victim provoked petitioner or that petitioner acted in the heat of passion. Without evidence of reasonable provocation and heat of passion, the trial justice could not properly charge on voluntary manslaughter, Commonwealth v. Campbell, 352 Mass. 387, 392, 226 N.E.2d 211 (1967) (citations omitted), and this Court, like the Supreme Judicial Court, holds that there is no view of the evidence that would permit a finding that the petitioner committed voluntary manslaughter and thus no occasion to charge on any such theory.
2. Involuntary Manslaughter
The petitioner fares a bit better in claiming that he was entitled to an instruction on the lesser included offense of involuntary manslaughter.
a. Was the issue raised at trial?
As a threshold matter, there is some doubt in this Court’s mind that petitioner ever adequately apprised the trial justice of his desire that a charge be given on an involuntary manslaughter theory. The only remark defense counsel made on the subject at the charge conference was as follows:
As to involuntary manslaughter, I can’t see how the Court, under the present state of Massachusetts law, could give a charge allowing such a verdict. Yet even that may be required in view of the Court’s ruling previously made two times on my motions for required findings of not guilty.
Trial Transcript at 14-19 (June 8, 1984). This is hardly an unequivocal request to charge of the nature required in this Court. Fed.R.Crim.P. 30; United States v. Lopez Andino, 831 F.2d 1164, 1171 (1st Cir.1987). However, the Supreme Judicial Court chose to address the involuntary manslaughter claim on the merits, Nadworny, 396 Mass, at 361, 486 N.E.2d 675, and thus in the absence of any procedural bar to such consideration, this Court can do no less.
b. Definitions
The Commonwealth of Massachusetts defines involuntary manslaughter in the following manner:
Involuntary manslaughter is an unlawful homicide, unintentionally caused (1) in the commission of an unlawful act, ma-lum in se, not amounting to a felony or likely to endanger life ... or (2) by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct.
Campbell, 352 Mass, at 397, 226 N.E.2d 211 (1967) (citations omitted). Based on this definition provided by the Supreme Judicial Court, there are three essential elements to the offense: (1) an unlawful homicide, which is (2) unintentionally caused, either (3)(a) in the commission of an unlawful act less serious than a felony, or (3)(b) by wanton or reckless conduct. Thus, this Court must determine whether any view of the evidence in this case would reasonably permit a finding that each of the essential elements of involuntary manslaughter was present. If not, the analysis comes to an end, as is the case with the issue of voluntary manslaughter. See Supra p. 1203. If, however, such a finding was reasonably permissible upon all the evidence in the ease, then this Court must next consider whether the due process clause of the Fourteenth Amendment requires a charge upon the lesser included offense of involuntary manslaughter.
Concerning the first issue — unlawful homicide — this Court has already ruled that the evidence was sufficient for a jury to find that Ms. Belmonte was unlawfully killed, See supra pp. 1197-99, so the issue devolves into a determination whether there was sufficient evidence for a reasonable jury to conclude that the homicide was unintentionally caused either in the commission of a crime less serious than a felony or by wanton or reckless conduct. As to the second issue — unintentional causation — while this Court holds that a rational jury could find that petitioner killed the victim intentionally, see supra pp. 1198 -99, the Court also holds that there are several views of the evidence which would rationally permit a finding that petitioner caused the death of the victim unintentionally.
First, no testimonial evidence concerning what happened on the night of Ms. Bel-monte’s disappearance rules out petitioner’s unintentionally causing her death. Second, with respect to the physical eví-dence, the pathologist testified that “the victim’s death could have been caused by and was ‘consistent with’ ‘[sjuffocation, smothering, injection of different drugs, poisons, carbon monoxide poisoning, drowning, and a large number of chemicals’ Nadworny, 396 Mass, at 359, 486 N.E.2d 675. There was nothing in the pathologist’s testimony to preclude the inference that the victim had been killed unintentionally. Third, Nadworny’s attempts to conceal the victim’s body were as consistent with the guilt and fear that would follow an unintentional killing as a result of unlawful or reckless conduct as they would be after the commission of a murder. Fourth, there is a view of the evidence that, although Nadworny was angry with Ms. Belmonte for “using” him, he was still in love with her at the time of her disappearance. The jury were free to credit this evidence; and, had they done so, the evidence would have tended to negate the contrary inference that Nadworny had intended to do the victim grievous bodily harm and — just barely — would have permitted the inference that, whatever Nadworny had done to Ms. Belmonte, he had not intended to kill her.
c. Nadworny’s four evidentiary theories
The analysis now turns to the third aspect of the definition of involuntary manslaughter, viz. whether, if there was an unintentional homicide, it was accomplished by commission of an unlawful act less serious than a felony, or by wanton or reckless conduct. Nadworny advances four separate and distinct theories to satisfy these alternative requirements. He maintains that, considering all the evidence the jury reasonably could have found: (1) petitioner provided or administered drugs to the victim which resulted in her immediate death from a drug overdose, (2) petitioner provided the victim with drugs causing her to overdose and then failed to summon medical assistance, (3) petitioner discovered the victim in a perilous condition in his apartment and, for selfish or untoward reasons, undertook to save her himself rather than summon appropriate aid, and (4) petitioner killed the victim unintentionally in the course of committing a battery against her.
i. The two drug theories
The first two theories fail for lack of evidence. It is true, as already observed by the Supreme Judicial Court, that there is a view of the evidence that Ms. Belmonte died of a drug overdose.
“The defendant explained to his friends that [Ms. Belmonte] ‘was overdosed’ by the hand of another, or ‘overdosed’ herself.”
Nadworny 396 Mass, at 356, 486 N.E.2d 675; see also id. at 350-51, 486 N.E.2d 675 (“The defendant told her that Lisa overdosed, that he tried to stop her.”). However, no evidence of any kind exists showing that Nadworny was the one who administered or provided drugs to the victim. While the jury was free to believe or “disbelieve [his proffered] version of the events of that evening,” id. at 356, 486 N.E.2d 675, there was no version before the jury in which Nadworny caused Ms. Belmonte’s death by means of drugs. Therefore, the trial justice was not free to instruct the jury on involuntary manslaughter where, as here, evidence of an essential element of the offense was completely lacking. Commonwealth v. Vanderpool, 367 Mass. 743, 746, 328 N.E.2d 833 (1975) (stating general rule that a judge “may not charge on a hypothesis not supported by the evidence”) (citations omitted).
ii. The reckless rescue theory
Nadworny’s third approach to the record likewise fails for lack of sufficient eviden-tiary support. According to the Supreme Judicial Court, Nadworny told Debby Lewis, the victim’s best friend, that Ms. Bel-monte had “overdosed, that she had gone into convulsions, that he tried to stop her, but that if he had called an ambulance and she died, the Belmontes would blame him.” Nadworny, 396 Mass, at 350-51, 486 N.E.2d 675. Based on this evidence, Nad-worny argues that the jury could have found that he discovered Ms. Belmonte on the verge of dying from a drug overdose and that he recklessly tried to save her himself rather than summon medical assistance. Nadworny argues further that killing someone while attempting to aid them by reckless means constitutes involuntary manslaughter, citing Commonwealth v. Pierce, 138 Mass. 165 (1884).
In Pierce, with Mr. Justice Holmes speaking for the court, it was held that a physician who treated a sick woman by causing her “to be kept in flannels saturated in kerosene for three days, more or less, by reason of which she died” could properly be found guilty of involuntary manslaughter. Id. at 174, 180. However, this Court need not consider here the issue of the current vitality of the reckless rescue theory of involuntary manslaughter since on this record the mere fact that the jury could have believed that Nadworny tried to “stop” or “save” Ms, Belmonte cannot, without more, support an inference that he acted recklessly. In the commission of a lawful act, there can be no involuntary manslaughter absent reckless conduct in the commission of that act. Accordingly, there is insufficient evidence on this record to require the trial justice to charge involuntary manslaughter on this theory.
iii. The battery-unintended death theory
On this record, however, there may exist barely sufficient evidence that Nad-worny committed a battery against Ms. Belmonte without intending to kill her. Indeed, Nadworny could not have murdered the victim without also committing a battery against her. Accordingly, the evidence which permits a finding that Nad-worny committed second degree murder is the same evidence which permits a finding that he committed a battery, except that a jury would have to find that Nadworny caused the death of the victim unintentionally in order to convict him of involuntary manslaughter. Here, though the evidence to support such a conclusion is gossamer thin, in the considered judgment of this Court, the evidence may be sufficient under Massachusetts law to warrant and require an involuntary manslaughter charge on a theory of battery-unintended death. The crucial evidence on this point is the testimony of Debby Lewis to the effect that Nadworny claimed that at all relevant times he “loved” Ms. Belmonte. Nadwor-ny, 396 Mass, at 346, 486 N.E.2d 675. In the judgment of this Court, the jury were free to credit his claim of continued affection, and — had they done so — in the particular circumstances of this case where the cause of death was unknown, they could reasonably infer that any battery he may have committed against her was not intended to kill her.
At this point in the analysis, one must pause to reflect — even if this United States District Court were to consider the evidence on the theory of battery-unintended death sufficient, albeit barely, as matter of Massachusetts law, to require a charge on battery-unintended death, what of that? Clearly, neither the distinguished trial justice of the Massachusetts Superior Court nor the full bench of the Massachusetts Supreme Judicial Court, the final word on matters of state law, considered the evidence sufficient. Nadworny, 396 Mass. 342, 361, 486 N.E.2d 675 (1985). So here the analysis ends — unless 1) there exists a federal constitutional due process right to a charge on the lesser included offense of involuntary manslaughter, and 2) that right is applied to these 1984 trial proceedings. The Court turns to these issues.
d. A due process right to a lesser included offense charge?
While the Supreme Court has held that a state court’s failure to give a lesser included offense instruction in a capital case may amount to a due process violation that is cognizable on habeas corpus, Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 2390, 65 L.Ed.2d 392 (1980); Bell v. Watkins, 692 F.2d 999, 1004 (5th Cir.1982), cert. denied, Bell v. Thigpen, 464 U.S. 843, 104 S.Ct. 142, 78 L.Ed.2d 134 (1983), it has consistently declined to consider whether non-capital defendants such as Nadworny have the same right. See Holloway v. Florida, 362 So.2d 333 (Fla.Dist.Ct.App. 1978), cert. denied, 449 U.S. 905, 101 S.Ct. 281, 66 L.Ed.2d 137 (1980); see also Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Similarly, in the First Circuit, whether a state court’s failure to give a lesser included offense instruction in a non-capital case is cognizable on habeas corpus appears unresolved. See Lewinski v. Ristaino, 448 F.Supp. 690, 697 (D.Mass.1978) (Tauro, J.) (“There is considerable question whether relief by way of habeas corpus will properly lie for denial of a requested jury charge as to alleged criminal activity.”) (footnote omitted).
There is significant, persuasive support for imposing a federal due process right to a lesser included offense instruction in the particular circumstances of this case, however. True, Beck v. Alabama must be read as providing an extra measure of due process protection for those facing execution — the state's most punitive sanction. Even so, holding that due process requires a lesser included offense instruction in non-capital cases is consistent with Beck's central principle that “providing the jury with the ‘third option’ of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard.” Beck, 447 U.S. at 634, 100 S.Ct. at 2388 (citing Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 [1973]). The Beck court, in explaining its holding, focused on the problem that concerns this Court in the instant case:
That safeguard [of a lesser included offense instruction] would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense — but leaves some doubt with respect to an element that would justify conviction of a capital offense — the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitable to enhance the risk of an unwarranted conviction.
Beck, 447 U.S. at 637, 100 S.Ct. at 2389. At Nadworny’s trial, the jury knew that Ms. Belmonte was dead and could readily infer both that she had met her death in Nadworny’s apartment and that her body had been found in the trunk of his car. Therefore, as a practical matter, the jurors would suspect that Nadworny had something to do with Ms. Belmonte’s death.
By instructing the jury only as to first and second degree murder, however, the justice of the Superior Court forced the jurors to choose between either convicting Nadworny of murder despite the uncertainty of the manner of Ms. Belmonte’s death or acquitting Nadworny despite the suspicions of the jurors themselves. A lesser included offense instruction, had one been given, would have resolved this inevitable tension by allowing the jurors the option of convicting Nadworny for a lesser offense if they had been unable to find each of the elements of murder beyond a reasonable doubt. In this way, a lesser included offense instruction protects a defendant’s due process right to the reasonable doubt standard and reduces the risk of an unwarranted conviction.
Indeed, it appears to this Court that the First Circuit has implicitly recognized a due process right to a lesser included offense instruction in this very case. In remanding to this Court, Nadworny v. Fair, 872 F.2d 1093 (1st Cir.1989), the First Circuit stated that:
the essence of the [lesser included offense] claim — that reasonable doubt exists as to guilt on the crime charged — is a matter of fundamental due process, see In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072 [25 L.Ed.2d 368] (1970); Mullaney v. Wilbur, 421 U.S. 684, 697-98, 95 S.Ct. 1881, 1888-89 [44 L.Ed.2d 508] (1975), and therefore cognizable in a federal habeas proceeding.
Id. at 1102-03. See Look v. Amaral, 725 F.2d 4 (1st Cir.1984) (holding that due process does not require a lesser included offense instruction of manslaughter where not requested).
Additionally, circuits other than the First Circuit have ruled clearly that federal due process requires a lesser included offense instruction in non-capital cases. Prather v. Rees, 822 F.2d 1418 (6th Cir.1987) (If habe-as petitioner was entitled to a lesser included offense instruction under state law, state trial court violated petitioner’s rights in refusing to give it, and habeas writ should issue); Ferrazza v. Mintzes, 735 F.2d 967, 968 (6th Cir.1984) (The Beck “principle is not limited to capital cases_”); see also United States v. Zapata-Tamallo, 833 F.2d 25, 28 (2d Cir.1987) (“Due process requires that a lesser included offense instruction be given [in narcotics possession case] if the evidence would permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the greater.”) (quoting Hopper v. Evans, 456 U.S. 605, 612, 102 S.Ct. 2049, 2053, 72 L.Ed.2d 367 [1982]); Bishop v. Mazurkiewicz, 634 F.2d 724 (3d Cir.1980), cert. denied, 452 U.S. 917, 101 S.Ct. 3053, 69 L.Ed.2d 421 (1981) (Lesser included offense instruction of manslaughter is not required by due process if the evidence does not support it.). But see Easter v. Estelle, 609 F.2d 756, 758 (5th Cir.1980) (holding that “a state trial court judge’s failure to instruct on a lesser included offense is not a federal constitutional matter”) (citations omitted); Nichols v. Gagnon, 710 F.2d 1267, 1269-72 (7th Cir.1983); Cooper v. Campbell, 597 F.2d 628, 631 (8th Cir.1979), cert. denied, 444 U.S. 852, 100 S.Ct. 106, 62 L.Ed.2d 69 (1979); James v. Reese, 546 F.2d 325, 327 (9th Cir.1976, cert. denied sub nom., Davis v. Greer, 459 U.S. 975, 103 S.Ct. 310, 74 L.Ed.2d 289 (1983); Perry v. Smith, 810 F.2d 1078, 1080 (11th Cir.1987).
Finally, there exists within the First Circuit a prescient and most persuasive district court decision precisely on point. In Dukette v. Perrin, 564 F.Supp. 1530 (D.N.H.1983), Chief Judge Devine was faced with a virtually identical situation in a non-capital case. He applied Beck to a state court’s failure to give an instruction on simple assault as a lesser included offense of aggravated felonious sexual assault. Recognizing that the Supreme Court had held that the “enhance[d] ... risk of unwarranted conviction” caused by a court’s failure to give a lesser included offense instruction was “intolerable in a case where the defendant’s life was at stake,” Dukette, 564 F.Supp. at 1538, the Chief Judge concluded that:
[t]he risk is equally intolerable in this case. Jury instructions which inevitably enhance the risk of unwarranted convictions have never been tolerated in our system of jurisprudence.... The fact that defendants in capital cases are afforded additional constitutional protections in no way diminishes the importance of the fundamental constitutional rights accorded all defendants in criminal cases.
Accordingly, upon this review of the present state of the law, this Court would be prepared to hold that Nadworny, convicted of second degree murder and sentenced to life imprisonment, has a due process right to a lesser included offense instruction on involuntary manslaughter on the theory of battery-unintended death — if such a holding would make a difference in this case.
e. Retroactive application?
Upon the most careful reflection, however, this Court concludes that, even were it to rule 1) that there exists a federal constitutional due process right to receive a lesser included offense charge where warranted under state law, and 2) that such a charge was required in this case but was not given — it nevertheless avails Nadworny nothing, since the application of any such rule to this case is the federal imposition of a “new” rule to a state case in which the judgment has become final pursuant to state judicial procedures. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). One commentator asserts the following:
Since 1965, courts and legal scholars have understood the “retroactivity” of newly created constitutional rules of criminal procedure to be governed by the standard established that year in Linkletter v. Walker. 381 U.S. 618[, 85 S.Ct. 1731, 14 L.Ed.2d 601] (1965); see, e.g., Allen v. Hardy, 478 U.S. 255, 258[, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199] (1986) (per curiam); Beytagh, Ten Years of Non-Retroactivity: A Critique and a Proposal, 61 Va.L.Rev. 1557, 1559 & n. 14 (1975). Under this standard, a newly announced constitutional rule would not benefit habeas corpus petitioners whose convictions had become final before the date of the Court’s decision if the purpose of the new rule, the reliance of the states on the old rule, and the effect on the administration of justice of the new rule’s retroactive application militated against unsettling previously decided cases. See Stovall v. Denno, 388 U.S. 293, 297[, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199] (1967)_ [I]n Teague v. Lane, [489 U.S. 288,] 109 S.Ct. 1060 [103 L.Ed.2d 334] (1989) (plurality opinion), the Court supplanted the retroactivity standard of Linkletter with a standard adapted from Justice Harlan’s separate opinions in two of Linkletter’s better known progeny. See Mackey v. United States, 401 U.S. 667, 675[, 91 S.Ct. 1160, 1164, 28 L.Ed.2d 404] (1971) (Harlan, J., concurring in part and dissenting in part); Desist v. United States, 394 U.S. 244, 256[, 89 S.Ct. 1030, 1037, 22 L.Ed.2d 248] (1969) (Harlan, J., dissenting). The Teague standard dramatically reduces, with two narrow exceptions, the retroactive application of new rules to cases on collateral review.
The Supreme Court — Leading Cases, 103 Harv.L.Rev. 137, 290 (1989). The Teague Court held that “[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” Teague, 109 S.Ct. at 1075 (1989); Butler v. McKellar, — U.S.-, 110 S.Ct. 1212, 1214, 108 L.Ed.2d 347 (1990) (“[A] new decision generally is not applicable in cases on collateral review unless the decision was dictated by precedent existing at the time the petitioner’s conviction became final.”); Penry v. Lynaugh, — U.S. -, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989) ("Under Teague, new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions.”) (citations omitted).
The judgment of conviction in the present case became final, at the latest, on June 23, 1986, when the Supreme Court denied Nadworny’s petition for a writ of certiorari. Moreover, were this Court to announce that the due process clause of the federal constitution requires a lesser included offense instruction in a non-capital case, it would be declaring a “new” constitutional rule of criminal procedure. “[A] ease announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal government.... [A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 109 S.Ct. at 1070 (citations omitted). Thus, the general rule of non-retroactivity applied to “new” rules to protect earlier convictions against collateral attack applies to this case — unless Nadwor-ny’s claim falls “into either of two narrow exceptions.” Supreme Court — Leading Cases, supra, at 292. See E. Krieger, The Court Declines in Fairness — Teague v. Lane, 109 S.Ct. 1060 (1989), 25 Harv. C.R.C.L. L.Rev. 164, 172 (1990).
As was the case in Teague, so it is here. The first exception suggested by Justice Harlan — that “a new rule should be applied retroactively if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,’ Mackey, [v. United States], 401 U.S. [675] at 692 [91 S.Ct. 1171, 1179, 28 L.Ed.2d 388 (1971)] (separate opinion of Harlan, J.) — is not relevant here.” Teague, 109 S.Ct. at 1073. Application of a constitutional due process requirement that a lesser included offense instruction be given when warranted under state law would not accord constitutional protection to any primary activity whatsoever.
The second narrow exception which permits retroactive application of a “new” rule such as the one at issue in this case is limited in scope “to those new procedures without which the likelihood of an accurate conviction is seriously diminished.” Id. at 1076-77. It is a much closer question, of course, whether Nadworny’s situation comes within this exception, thus enabling him to take advantage of the retroactive application of a new rule of constitutional criminal procedure — should one be declared — requiring as matter of due process the giving of a lesser included offense instruction where warranted by state law. For three reasons, however, this Court, after careful reflection, concludes that the second exception to the general rule of non-retroactivity likewise does not apply to this case.
First, while the failure to give a lesser included offense instruction may well be said to affect the “likelihood of an accurate conviction” in that it heightens the potential for conviction of a major offense rather than the lesser included offense, see Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 2390, 65 L.Ed.2d 392 (1980), Mr. Justice Stevens’ concurrence makes clear that the reference of the plurality to “an accurate conviction” refers not to the precise crime of which a defendant is found guilty but rather to “an accurate determination of innocence or guilt.” Teague, 109 S.Ct. at 1081 (Stevens, J., concurring in part and concurring in the judgment) (quoting Teag-ue, 109 S.Ct. at 1076 [plurality opinion]). The failure to give a lesser included offense instruction has no material bearing on the issue of innocence or guilt; rather, it bears, perhaps significantly, on the crime for which a defendant is found guilty. It appears, therefore, that the Supreme Court plurality does not intend the second narrow exception to apply to the circumstances presented in this case.
Such an interpretation is supported by considering the premise on which the plurality based its consideration of this second narrow exception, viz, “[bjecause we operate from the premise that such [new] procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge.” Id. at 1077. Since the Beck decision by its carefully crafted terms only applies in death penalty cases, it seems unlikely — even should the premise of that decision be extended, see supra pp. 1207-09 — that the Supreme Court will come to consider it to be one of the newly emergent “components of basic due process.” Teag-ue, 109 S.Ct. at 1077.
Finally, it must be remembered that, as a practical matter under Massachusetts law, Nadworny is eligible for parole from his second degree murder conviction after serving fifteen years thereon. Mass.Gen. Laws Ann. ch. 127, sec. 133A (West 1974). Had a lesser included offense charge been given, and had Nadworny been convicted of involuntary manslaughter, he would be subject to a maximum sentence of twenty years. Mass.Gen.Laws Ann. ch. 265, sec. 13 (West 1974). Under the Sentencing Guidelines of the Massachusetts Superior Court, the probable sentence for involuntary manslaughter would be not less than eighteen nor more than twenty years imprisonment in the Massachusetts Correctional Institution at Cedar Junction. Had such a sentence been imposed on Nadwor-ny, he would be eligible for parole after serving twelve years. Mass.Gen.Laws Ann. ch. 127, sec. 133 (West Supp.1979). It cannot be assumed that Nadworny will be paroled as soon as he becomes eligible. However, it is significant that, even had a lesser included offense charge been given, no one suggests, as a practical matter, that Nadworny would today be free from custody. Indeed, to the contrary, the overwhelming likelihood is that he would be facing a substantial period of imprisonment whether or not a charge on involuntary manslaughter had been given. Therefore, as the sanctions for criminal conduct are a matter especially within a state’s province, e.g., Gregg v. Georgia, 428 U.S. 153, 176, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859 (1976), this seems a strange case for the issuance of the Great Writ even were it not complicated by the retroactivity issue.
Here, where the giving or withholding of a lesser included offense charge has no material bearing on the issue of innocence or guilt, where the Supreme Court has not yet itself expanded the Beck principle beyond death penalty cases, and where even a ruling favorable to Nadworny on this point will not, as a practical matter, have any immediate effect on his custodial status for years to come, this Court concludes that Teague precludes the retroactive application to Nadworny of any rule of constitutional criminal procedure requiring a lesser included offense charge, even were this Court to announce such a rule. Accordingly, Nadworny’s petition must be denied.
f Summary and reflections
Candor compels a brief reflective summary of the necessarily intricate reasoning the Court has been required to employ herein.
It is apparent to this Court that the theory of manslaughter through battery-unintended death was never adequately raised at trial so as to warrant consideration by the trial justice. The late John Jennings, Esq., one of the Commonwealth’s finest trial lawyers and an expert in criminal defense work, represented Nadworny at trial. The Hon. Robert Barton, an extraordinarily distinguished justice of the Massachusetts Superior Court, likewise an expert in the adjudication of criminal cases, presided over the trial. Nevertheless, the only reference to involuntary manslaughter in the charge conference is the equivocal statement of counsel quoted supra at 1204, and no specific objection raising the battery-unintended death theory was made to the charge as given. Were the procedural issue of waiver presented to this Court, it would seem that the trial justice, the one judicial officer who “lived in the trenches,” Anderson v. Beatrice Foods Co., 900 F.2d 388, 393 (1st Cir.1990) (quoting Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1082 [1st Cir.1989]), with this case, never had a viable chance to confront what has come to be the crucial issue herein.
Be that as it may, the procedural issue of waiver is not before this Court. Cf. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Despite the evident failure to brief and articulate the theory of procedural default now advanced before the Massachusetts Supreme Judicial Court, that Court is acting in accordance with its tradition of plenary review on the merits, especially in murder cases. See Mass.Gen. Laws Ann. ch. 278, sec. 33E (1981). Here, the Court briefly addressed on the merits— and rejected — Nadworny’s appellate claim that he was entitled to a charge on the lesser included offense of involuntary manslaughter. The battery-unintended death theory of involuntary manslaughter was first articulated in Nadworny’s petition for rehearing. Not surprisingly, it was rejected out of hand.
With the Massachusetts Supreme Judicial Court having eschewed the procedural default as a ground (or a defense) for its decision, the matter comes before this Court on Nadworny’s habeas petition. After a false start wherein this Court misconceived the legal standard for exhaustion of state remedies, Nadworny v. Fair, 685 F.Supp. 20 (D.Mass.1988), rev’d, 872 F.2d 1093 (1st Cir.1989), the matter was remanded and this Court addressed the merits.
After a most careful sifting of the increasingly cold record, this Court uncovered a single shard of evidence — Nadwor-ny’s professed “love” for the victim— which, in the unique circumstances of this case, would seem to warrant and require, under the law of the Commonwealth, a charge on the lesser included offense of in