United States Court of Appeals
For the First Circuit
No. 96-2321
JOEY BREWER,
Petitioner, Appellee,
v.
CLIFFORD MARSHALL,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lynch, Circuit Judges.
Ellyn H. Lazar
, Assistant Attorney General, with whom
Scott Harshbarger, Attorney General, was on brief, for
appellant.
William
A.
Hahn, with whom Hahn
&
Matkov was on
brief, for appellee.
July 21, 1997
LYNCH, Circuit
Judge. Joey A. Brewer, an
African American Boston police officer, was charged with the
1988 kidnapping and rape of a fifteen-year-old minority woman.
During the jury impanelment for his state court trial, the
prosecutor exercised three rounds of his peremptory challenges,
including challenges to four black jurors. At the end of these
three rounds, and after the prosecutor had announced himself
satisfied, defense counsel objected on the ground that the
prosecution had purposefully sought to eliminate black
jurors.
The judge overruled the objection on the ground that it should
have been made earlier, and thus did not require the
prosecution to meet the merits of the objection. When the
prosecution struck a fifth black juror the next day, the
defense promptly objected that this peremptory challenge was
racially biased. The prosecution presented a nondiscriminatory
reason for striking the juror, and the court overruled the
objection on the merits. Brewer was convicted, and the
conviction was summarily affirmed on appeal by the
Massachusetts Appeals Court. The Massachusetts Supreme
Judicial Court declined further review. In November 1993,
Brewer filed his petition for habeas review.
Seven years after the state trial, a federal
district court issued a writ of habeas corpus, requiring Brewer
1. The terms "African American" and "black" are used
interchangeably.
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to be retried or released. The court ruled that Brewer had, on
the numbers, made a prima facie case that he had been denied
his constitutional right to a trial before a jury of his peers,
which the state no longer had the evidence to rebut, and thus
there was a violation of Batson v. Kentucky, 476 U.S. 79
(1986). We reverse.
I.
We recount the factual background in the light most
favorable to the verdict. See
Stewart v.
Coalter, 48 F.3d 610,
611 (1st Cir.), cert. denied, 116 S. Ct. 153 (1995).
While on duty early in the morning of October 22,
1988, Officer Brewer came upon a young woman and her father in
a parked car in Franklin Park. The prosecution presented
evidence that Brewer ordered the father to leave the area, put
the young woman in his police cruiser, drove to another
location, and raped her. The father had attempted to follow in
his car but could not keep up. After the rape, Brewer drove
the victim home and told her to keep quiet. Instead, she
immediately told her mother and father, who then reported the
rape to the police. After being treated at a hospital, the
victim directed police to the scene of the rape.
At the scene, police found half of the girl's school
class schedule on the ground. Police logs also indicated that
Brewer had failed to respond to four "priority calls" during
the time period in which the girl claimed to have been raped.
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Brewer's story was that he interrupted the father having sexual
intercourse with the daughter, ordered the father to leave, and
then took the young woman home. Brewer did not arrest the
father, seek medical attention for the daughter, or file an
incident report.
Brewer was charged with kidnapping and rape,
violations of Mass. Gen. Laws ch. 265, SS 26, 22A. Jury
impanelment for Brewer's trial began on December 15, 1989.
During the general voir dire, after six jurors had been excused
for inability to serve, the trial judge inquired about the race
of the victim. The judge expressed concern that neither side
had requested a voir dire on the issue of race, and asked
whether it was an issue in the case. Both the prosecutor and
the defense counsel responded that it was not. The judge then
continued with the general voir dire.
After excusing five more jurors who were unable to
serve, the judge again suspended the proceedings and insisted
that defense counsel ask Brewer himself whether he wanted a
voir dire on racial bias. The court, at Brewer's request, then
proceeded with an individual voir dire on racial and ethnic
bias after excusing the thirteen remaining jurors who were
unable to serve. The judge asked each juror, out of the
2. The court may have been prompted to make such an inquiry by
a juror who volunteered during voir dire that he was prejudiced
and that when he saw the defendant and the court mentioned
rape, he had become upset.
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presence of other jurors, whether they had any bias or
prejudice for or against black persons or persons of Hispanic
origin.
At the end of the individual voir dire, one juror had
been excused due to racial bias; fourteen of the remaining
prospective jurors were seated in the jury box. The first
round of peremptory challenges began with the prosecutor, who
asked that six jurors be excused. Defense counsel did not
object to any of the challenges. The clerk then excused those
six jurors.
After six new jurors were seated, a second round of
challenges began. The prosecutor made two more peremptory
challenges. Defense counsel did not object. These two
challenged jurors were excused and then replaced. In the third
round, the prosecutor challenged one juror. Again, with no
objection from defense counsel, the challenged juror was
excused and replaced.
Having challenged nine jurors over three rounds, the
prosecutor informed the court and defense counsel at side bar
that the Commonwealth stood content. At this point, defense
counsel for the first time objected on race grounds, saying
that four of the nine prospective jurors who had been excused
were black: "We had a fair representation racially of six and
now we're down to two."
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After initially asking the prosecutor to explain his
reasons for making the challenges, the trial court withdrew its
request and instructed defense counsel that he should raise his
objection to a peremptory challenge "at the time the challenge
is made."
Although the defense counsel complained that he had
not seen "the pattern emerge until it was completed," he did
not create a record of the races of the challenged jurors. The
judge continued with the impanelment, giving defense counsel
the opportunity to make his own peremptory challenges. Defense
counsel's challenges resulted in the exclusion of fourteen more
3. The relevant colloquy went as follows:
POMAROLE (prosecutor): The Commonwealth stands content.
THE COURT: Thank you. Mr. McGee?
McGEE (defense counsel): At the outset, I'd like to object on
the record to Mr. Pomarole having taken off four black people
from the jury. We had a fair representation racially of six
and now we're down to two.
THE COURT: Mr. Pomarole --
POMAROLE: Your honor --
THE COURT: -- I'm going to ask you give us the reasons for your
challenges.
POMAROLE: Your Honor, I'd like to also say at the outset --
your Honor, I believe I've challenged white people as well as
black people without respect to gender.
McGEE: He hasn't responded, judge.
THE COURT: I know he hasn't yet, sir.
POMAROLE: I'd have to get my notes, your Honor, with respect
to the people that I've challenged.
THE COURT: At this point, Mr. McGee, I'm not going to require
Mr. Pomarole to give his reasons. But I put you on notice, Mr.
Pomarole, that, should this issue arise again, sir, I am going
to ask you to justify your challenge. Mr. McGee, in the future
you should raise that, sir, at the time the challenge is made.
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jurors including one man who may have been black, and the
exhaustion of the jury pool.
On the second day of jury selection, after the judge
excused those unable to serve and asked each of the prospective
jurors about racial bias, the state exercised two peremptory
challenges. One of the challenged jurors was black. Just
after that juror was excused and replaced, Brewer's counsel
objected and then specifically identified the number of the
black juror at the court's request. The court then, consistent
with its prior statement, asked the state to explain why it
made the challenge. The state responded that the juror had two
children roughly the same age as Brewer and therefore might be
sympathetic to him. The court rejected the objection. The
impanelment then continued with defense counsel making the
remainder of his challenges, and the court excused three more
jurors.
In the end, only one African American was on the jury
panel. This sole black juror was randomly chosen to be an
alternate and did not engage in deliberations. In sum, a total
of forty-five potential jurors went through the jury box; seven
were black. There is no evidence as to the total number of
4. There was some dispute between the court and defense
counsel as to whether this juror was black or Hispanic.
5. These figures are based on four assumptions: that the four
jurors challenged by the state on day one of jury selection
were in fact black, that one of the jurors challenged by the
defense on day two of jury selection was black, that one juror
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black potential jurors. The government exercised eleven
peremptory challenges, five of which were against black venire
members. Brewer used one of his seventeen peremptory
challenges to strike a black potential juror.
Before trial, Brewer filed a motion to dismiss for
prosecutorial misconduct, arguing that the state had failed to
disclose material and exculpatory evidence in violation of the
rule articulated in Brady v. Maryland, 373 U.S. 83 (1963).
Brewer complained that the prosecutor had delayed revealing
test results that were inconclusive as to whether semen found
in the victim was in fact Brewer's. At a bench conference on
the first day of trial, the prosecutor had stated that, if
Brewer were to introduce evidence that he was not the source of
the semen, the victim would be forced to testify that the
source was her boyfriend, with whom she had had sexual
intercourse before the rape. Defense counsel argued that the
alleged victim's prior unprotected intercourse with her
boyfriend was exculpatory for his client, because it suggested
that she might have a motivation for fabrication. Counsel
challenged by the state on day two was black, and that one
alternate juror was black. The race of one juror who was
excused during peremptory challenges because of scheduling
problems is unknown. There is no clear record of the race of
these jurors.
The Commonwealth questioned petitioner's assertions about
the number of African American venirepersons, but not until the
federal proceedings. This challenge would have been better
received if brought during the state proceedings.
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asked that if the court refused to dismiss the case, that it
order the Commonwealth to disclose the boyfriend's identity.
The trial court denied the motion to dismiss and did not order
disclosure of the boyfriend's identity on the ground that the
Massachusetts Rape Shield Law prohibits the introduction of a
victim's sexual history.
On the last day of trial, Brewer presented expert
testimony that he was not the source of the semen. He then
testified that when he found the victim and her father in the
car, she was naked and her father's pants were down, thus
suggesting that the father was the source of the semen. The
victim testified on rebuttal that she had had unprotected sex
with her boyfriend suggesting that the semen was his. Defense
counsel objected, saying that he had asked for the boyfriend's
name earlier and was now precluded from making a credibility
argument. The court declined to revisit the issue. After
trial, Brewer had blood samples from the boyfriend tested. The
results indicated that the boyfriend was not the source of the
semen. Brewer then filed a motion for a new trial based on
this "newly discovered" evidence. The motion was denied on the
ground that the defendant had already presented expert
testimony that he was not the source of the semen.
II.
Brewer was convicted and sentenced to nine-to-twelve
years' imprisonment for rape and three-to-five years for
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kidnapping, to be served concurrently. He appealed his
conviction to the Massachusetts Appeals Court. Prior to a
decision on appeal, he filed a motion for new trial with the
trial court, arguing, inter alia, that the prosecutor had
impermissibly used peremptory challenges based on race. The
trial court denied the motion.
Brewer filed an appeal from the denial of the new
trial motion, which was consolidated with his direct appeal.
In response to Brewer's arguments, the state argued that, by
waiting to object until after all four jurors were dismissed,
Brewer had failed to object in a timely fashion to the state's
disputed peremptories. In a one-and-a-half page opinion, the
Appeals Court upheld Brewer's conviction: "Substantially for
those reasons set out in the Commonwealth's brief and the trial
judge's memorandum of decision in denying the defendant's
motion for a new trial, we conclude that there is no basis for
disturbing the defendant's convictions."
Brewer filed an application for leave to obtain
further appellate review with the Massachusetts Supreme
Judicial Court. The request was denied without opinion.
Brewer petitioned for a writ of habeas corpus in the
United States District Court for the District of Massachusetts
in November 1993. He argued that the prosecution made racially
motivated peremptory challenges, thereby violating his
Fourteenth Amendment rights to equal protection and due process
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of law as established in Batson v. Kentucky, 476 U.S. 79
(1986). He also renewed his claim that the state had withheld
exculpatory evidence in violation of the Brady rule.
The district court denied relief on the
Brady claim,
but found that Brewer had made a prima facie case of
discrimination under Batson. The district court gave plenary
review to the question of racial discrimination and relied
solely on numbers to conclude that a prima facie case was
established.
Engaging in its own statistical analysis, the
district court concluded that there was a pattern that
demonstrated a statistical disparity sufficient to establish
a prima facie case of racial discrimination under
Batson. The
district court noted that when Brewer first made a Batson
objection, the prosecutor had exercised nine peremptories, four
of which were used to excuse four out of six black
venirepersons. In doing this, the court found that the
prosecutor used 44% of his strikes in the first round to excuse
66% of the black persons then impanelled.
There were no statistics available as to the racial
composition of the venire which had been found to be unbiased
after voir dire or the racial composition of Suffolk County
from which the venire was drawn. The district court, however,
estimated that 15% of the entire venire was black based on the
fact that out of a total of 45 potential jurors who had passed
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through the box, seven were black. Thus, the court reasoned,
the prosecutor's strike rate against blacks in the first round
(66%) was several times larger than the population of the
blacks in the venire (15%).
Applying the new standard of review outlined in the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
104-132 ("AEDPA"), the court found that the estimated numbers
based on the "pattern" of strikes alone constituted a prima
facie case of discrimination under "clearly established"
Supreme Court law.
The court then ordered an evidentiary hearing to
allow the state to offer nondiscriminatory reasons for the
challenges. The state was unable, seven years after the trial,
to produce any evidence. The prosecutor said that he could not
recall the reasons and had long since destroyed his trial
notes. The court granted the writ on Batson grounds on
September 30, 1996, but stayed its issuance to allow for an
appeal.
Seeking clarification, the state returned to Suffolk
County Superior Court and filed a request for the original
trial judge to explain her rulings on Brewer's Batson claims.
After conducting a hearing, the trial judge issued a memorandum
stating that she had rejected the initial Batson claim on
6. In his appellate brief, Brewer agreed, relying upon the
district court opinion, that numbers alone can establish a
prima facie case.
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timeliness grounds. Because the excused potential jurors had
already left the courtroom, she was unable to observe their
races and demeanors at the time of the objection. She was
therefore unable to make a meaningful evaluation of the
defendant's claim that the prosecutor had made race-based
peremptory challenges.
Based on this response, the state filed a motion for
reconsideration in the federal district court, arguing that
habeas review was barred by procedural default. The court
found the state's new argument unpersuasive and denied the
motion, holding that there was no independent and adequate
state ground. The Commonwealth appeals, arguing, inter alia,
that the district court erred in concluding that there was no
procedural default on the Batson claim. Additionally, Brewer
contends on appeal that the government's failure to disclose,
in a timely fashion, the boyfriend's identity deprived him of
the opportunity to counter the "boyfriend story" in violation
of his constitutional rights to a fair trial and due process of
law.
7. Brewer did not, as requested, file an application for a
certificate of appealability in this court on this issue. Even
if we treat his appellate brief as such an application, it is
a close question whether Brewer even meets the standards for a
certificate of appealability. Because we reject the claim on
its merits, we pretermit this initial question. See
Norton v.
Mathews, 427 U.S. 524, 530-31 (1976) (where merits can be
easily resolved in favor of the party challenging jurisdiction,
resolution of complex jurisdictional issue may be avoided);
Birbara v.
Locke, 99 F.3d 1233, 1237 (1st Cir. 1996);
Caribbean
Transp. Sys., Inc.
v.
Autoridad de las Navieras de Puerto Rico
,
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III.
The Batson Claim and Limits on Federal Habeas Review
Independent And Adequate State Grounds
The state asserts that review is barred under the
"independent and adequate state ground" doctrine. Under that
doctrine, federal courts sitting to hear habeas petitions from
state prisoners are barred from reviewing federal questions
which the state court declined to hear because the prisoner
failed to meet a state procedural requirement. Lambrix v.
Singletary, 117 S. Ct. 1517 (1997). In such cases, the state
judgment is said to rest on independent and adequate state
procedural grounds. Harris v. Reed, 489 U.S. 255 (1989);
Wainwright v. Sykes, 433 U.S. 72 (1977). Considerations of
comity and federalism bar the federal court's review.
Lambrix,
117 S. Ct. at 1522-23 ("A State's procedural rules are of vital
importance to the orderly administration of its criminal
courts; when a federal court permits them to be readily evaded,
it undermines the criminal justice system."). "[A] habeas
petitioner who has failed to meet the State's procedural
requirements for presenting his federal claims has deprived the
state courts of an opportunity to address those claims in the
first instance." Coleman v. Thompson, 501 U.S. 722, 732
(1991). Without the "independent and adequate state ground"
901 F.2d 196, 197 (1st Cir. 1990) (assuming existence of
appellate jurisdiction where jurisdiction uncertain and appeal
lacked substantive merit).
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doctrine, federal courts would be able to review claims the
state courts never had a proper chance to consider. Lambrix,
117 S. Ct. at 1523.
There are, however, exceptions to the bar on habeas
review if the prisoner "can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice."
Coleman,
501 U.S. at 749-50.
Here, although the state did not raise the procedural
default issue in the federal habeas court until a motion for
reconsideration, the district court ruled that it would
consider the procedural default argument on its merits, in the
interests of comity. As the district court properly noted, it
has the authority to consider the procedural default issue
sua
sponte. Ortiz v. Dubois, 19 F.3d 708 (1st Cir. 1994), cert.
denied, 513 U.S. 1085 (1995); see also Henderson v. Thieret,
859 F.2d 492, 493 (7th Cir. 1988). Although belated, the
Commonwealth did make the argument in the state trial court,
and the issue was fully briefed both there and here. The
procedural default issue was also squarely presented to the
state appellate courts on direct review.
On the merits of the procedural default argument, the
district court held: "Because the [Massachusetts] Appeals Court
gave no plain statement as to its reasons for upholding the
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conviction, this Court on habeas corpus review presumes that
there [are] no independent and adequate state grounds barring
review." The Commonwealth challenges this finding. We start
with the doctrine of independent and state grounds, focusing
first on the question of independence.
Independence
Generally, a federal habeas court defers to a state
court's articulation of a state law ground for a decision.
When the state decision "fairly appears to rest primarily on
federal law or to be interwoven with federal law," the federal
court presumes there is no independent and adequate state
ground for the decision. Coleman, 501 U.S. at 733 (internal
quotation marks and citation omitted). However, that
presumption does not apply where, as here, there is no "clear
indication that [the] state court rested its decision on
federal law." Id. at 739-40.
8. There are refinements to that doctrine. If, after deciding
a party is procedurally barred from raising a claim, the state
court nonetheless reviews the merits for a miscarriage of
justice and discusses federal law in that context, that limited
review does not undercut the adequacy and independence of the
state grounds. Burks v.
Dubois, 55 F.3d 712, 716 n.2 (1st Cir.
1995); Tart v. Massachusetts, 949 F.2d 490, 496 (1st Cir.
1991).
9. While a broad reading of the Supreme Court's decision in
Harris, 489 U.S. 255, might lead to the conclusion that a
presumption that the state court decision rests on federal
grounds or on intertwined state and federal ground applies
here,
Harris was limited by the Court's subsequent decision in
Coleman. See Coleman, 501 U.S. at 735-36.
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The one-and-a-half page summary order of the
Massachusetts Appeals Court is the last expression of opinion
from the state courts. The final state court word on the
matter refers us to the opinion of the trial court and the
Commonwealth's state appellate brief. The state appellate
court denied the appeal "substantially for the reasons set
forth in the Commonwealth's brief and the trial judge's
memorandum of decision in denying the defendant's motion for a
new trial." In Coleman, the state court likewise issued a
summary order referring to its consideration of all of the
filed papers, including the briefs of the petitioner and the
state. The Supreme Court acknowledged that this language
raised some ambiguity because the briefs referred to federal
claims. Id. at 744. But the Court held that such ambiguity
did not warrant application of a presumption that the state and
federal claims were intertwined. See id.
The Commonwealth's brief to the Massachusetts
Appeals Court argued that the defendant had waived his right to
challenge the first four black jurors by not making his
challenge in a timely fashion. Additionally, it argued on the
10. The Supreme Judicial Court denied Brewer's application for
further review without opinion.
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merits that striking the fifth black juror did not violate the
Constitution.
The trial court's memorandum of decision on Brewer's
new trial motion was responsive to the arguments presented in
the motion, which rested "primarily on the grounds of newly
discovered evidence." Brewer presented only a generalized
argument about the exclusion of blacks from the jury in his
motion: "Due to challenges from the prosecution, most black
jurors were excluded from the jury and none deliberated on the
verdict." Brewer's motion did not, on its face, challenge the
earlier ruling that Brewer's objection to the prosecution's
exercise of peremptories to strike four black venire members
was untimely. The order of the state judge denying the new
trial motion may appear at first to be somewhat ambiguous
because it starts with a statement that the court found no
support for the contention that the Commonwealth had improperly
excluded blacks from the jury. However, the part of the state
11. The state's brief argued as follows:
The defendant waived his right with
respect to the four challenged black
jurors because he did not object after
each challenge, did not make an offer of
proof, did not raise the matter until
after the four jurors were excused and
left, did not request a hearing and did
not say anything at all when addressed by
the judge, told that she was not going to
ask the prosecutor for reasons and given a
chance to reply.
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court opinion dealing with the jury selection procedures only
concerns the challenge by the prosecution of the fifth black
juror. There is no discussion of defendant's earlier
objection. In his application for leave to obtain further
appellate review from the Supreme Judicial Court, Brewer
admitted that there was no discussion of the legality of the
exclusion of the four prospective jurors in the trial judge's
memorandum addressing the new trial motion.
There is certainly reason to believe that the basis
for the ruling as to the timing of the objection to the
prosecutor's first four peremptories against black jurors was
an independent state procedural ground. As a result, we
consider the state's argument that the state appeals court
ruling rested on the grounds that the challenge to the
exclusion of the first four jurors was not timely made and that
12. When the Commonwealth sought clarification in 1996, the
judge who presided over Brewer's state court trial emphasized
that her ruling on the objection was a result of the timing of
defense counsel's objection.
As the court stated to defendant's
counsel: "[y]ou should raise that at the
time
the
challenge
is
made." Tr.1-124
(emphasis added). Because the court was
foreclosed from effectively assessing the
challenges and could not ascertain whether
the reasons were race neutral, the court
withdrew its request to have the
Commonwealth explain its challenges. The
defendant's claim was rejected on
timeliness grounds.
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the challenge to the fifth black juror was valid under the
Batson standard.
Adequacy
The "adequacy" of this state procedural ground, for
federal habeas purposes, is another issue. Batson itself
declined to decide when an objection must be made in order to
be timely and left that matter to be resolved by local law.
Batson, 476 U.S. at 99-100 & n.24. There are no Massachusetts
Supreme Judicial Court cases establishing precisely when in the
sequence of events an objection to a peremptory challenge must
be made.
Brewer's challenge rests largely on the ground that
state procedural requirements "cannot be permitted to thwart
review applied for by those who, in justified reliance on prior
decisions, seek vindication in state courts of their federal
constitutional rights." NAACP v.
Alabama, 357 U.S. 449, 457-58
(1958). State rules may not procedurally bar a federal court
from hearing a Batson claim on timeliness grounds if the rule
is not "firmly established and regularly followed." Ford v.
Georgia, 498 U.S. 411, 423 (1991). In Ford, the Supreme Court
declined to honor a procedural bar where the defense counsel
had in fact raised the
Batson issue prior to jury selection.
13. It is not necessary that a state court explicitly state
that it is resting its decision on state procedural grounds in
order for the decision to be deemed to rest on "independent and
adequate state grounds." See Coleman, 501 U.S. at 735-36.
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Ford made clear that state procedures may not
completely preclude the very opportunity to raise
constitutional claims. See also James v. Kentucky, 466 U.S.
341, 348-52 (1984); Michel v. Louisiana, 350 U.S. 91, 93-94
(1955); cf. Powell v. Nevada, 511 U.S. 79, 83-84 (1994).
Brewer argues that requiring a defendant to object to a
challenge on the ground of a pattern of racially exclusionary
strikes before the pattern emerges raises constitutional
issues. For example, he says he should not have had to object
to the strike of the first black juror on the ground of a
pattern of racial discrimination if he did not see the pattern
until the strike of the fourth black juror. If that were what
happened in this case, we would have considerable sympathy for
the argument. But that is not what happened. As the state
trial court said in its clarification memo, any pattern emerged
at the latest with the strike of the fourth juror; the defense
should have made its objection at that time rather than waiting
until later:
The defendant's counsel could have raised
the issue of impermissible peremptories
after the Commonwealth indicated a desire
at side bar to excuse the first six
jurors, or the next two jurors, or the
final juror, and before those jurors were
excused but not after the Commonwealth
said it was content.
There is no constitutional impediment to a state procedural
ruling such as the trial judge stated.
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Even if there is no constitutional impediment to the
state procedural rule, the Supreme Court has said that the rule
must be "firmly established and regularly followed."
Ford, 498
U.S. at 423. The Commonwealth relies on Massachusetts' firmly
entrenched contemporaneous objection rule. Commonwealth v.
Fluker, 385 N.E.2d 256, 261 (Mass. 1979). In cases where
defense counsel fails to make a timely objection, the state
does not waive the objection, and the appellate decision rested
on that ground, that is "a classic example of a procedural
default, and petitioner can succeed in his habeas case only by
showing cognizable cause for, and cognizable prejudice from,
his procedural default or, alternatively, by demonstrating that
the federal court's failure to address the claim on habeas
review will occasion a miscarriage of justice." Burks v.
Dubois, 55 F.3d 712, 716 (1st Cir. 1995) (failure to object to
prosecutor's misstatement of evidence at closing precludes
habeas review); see also Puleio v. Vose, 830 F.2d 1197, 1199
(1st Cir. 1987).
Recognizing the value of contemporaneous objections,
this court has itself rejected review of Batson claims where
defense counsel failed to make timely and adequate objection at
trial. In United
States v. Pulgarin, 955 F.2d l (1st Cir.
1992), we rejected direct review where the defense counsel had
made an aborted attempt at trial to raise a Batson claim,
saying:
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[C]ontemporaneous objection is especially
pertinent as to Batson claims, where
innocent oversight can so readily be
remedied and an accurate record of the
racial composition is crucial on appeal.
Pulgarin, 955 F.2d at 1. Important institutional concerns are
advanced by enforcing the contemporaneous objection rule for
Batson claims.
The Commonwealth's common law contemporaneous
objection rule has a statutory analogue in Rule 22 of the
Massachusetts Rules of Criminal Procedure, which requires that
an objection be made at the time of the challenged action.
14. We note that there may be tactical reasons why counsel may
choose to wait before asserting an objection to the other
side's peremptory challenge. A party may want a particular
black juror challenged by the other side to be excused for his
own reasons, but still to claim racial bias. Because the court
on a promptly made objection to a challenge may choose, after
examination, to seat the juror if the juror is still available,
a belated objection made after the juror has left may narrow
the range of remedies available to the court. Commonwealth v.
Reid, 424 N.E.2d 495, 500 (Mass. 1981) (trial judge has
discretion to fashion remedy, including disallowing challenge,
and is not required to dismiss the entire venire). If the
juror is no longer physically present, the court's remedial
options may then be limited to a mistrial and impanelling a new
jury. Enforcement of the contemporaneous objection rule avoids
allowing a late-objecting party to have his cake and eat it
too.
15. Mass. R. Crim. P. 22 provides:
[I]t is sufficient that a party, at the
time the ruling or order of the court is
made or sought, makes known to the court
the action which he desires the court to
take or his objection to the action of the
court, but if a party has no opportunity
to object to a ruling or order, the
absence of an objection does not
thereafter prejudice him.
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23
The purpose of the objection requirement of Rule 22 is to
ensure that the alleged error is "brought clearly to the
judge's attention so that [s]he may squarely consider and
decide the question." Commonwealth v. Mosby, 413 N.E.2d 754,
762 n.4 (Mass. App. Ct. 1980).
As she stated in her clarification memorandum, the
state trial judge felt hampered in her ability to fairly
evaluate the objection to the peremptory challenges by the
timing and method of the objection. Defense counsel did not
refer to the four jurors in question by their juror numbers or
other identification, but only said that they were black. At
the time of the objection, those jurors had already been
excused and had left the courtroom. There is no indication
(because defense counsel created no record) of where in the
sequence of the prosecutor's nine peremptory challenges these
four fell or whether the court or counsel had a clear memory of
who those jurors were. Nor did counsel create a record of the
race of the jurors. As the trial judge said, working later
from her memory:
The race or ethnicity of the jurors cannot
be definitely known. As defendant's
counsel stated during impanelment "I have
no way to distinguish between Hispanic and
black." Tr. 1-125. The court does recall
that there were discussions with counsel,
on and off the record, concerning the race
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24
and ethnicity of various members of the
venire.
The trial judge commented that the lateness of counsel's
objection -- after all the jurors at issue had left -- meant
that she had "no opportunity to observe the demeanor or
appearance or race of the excused jurors or to evaluate
meaningfully the Commonwealth's challenges." See also United
States v. Bergodere, 40 F.3d 512, 517 (1st Cir. 1994).
At this general level, there is support for the
Commonwealth's argument that this case involves an application
of the contemporaneous objection rule. Even before Batson,
Massachusetts, acting under its own Constitution, prohibited
the racial use of peremptory challenges in 1979. See
Commonwealth v. Soares, 387 N.E.2d 499 (Mass. 1979).
Subsequent cases made it clear that
Soares challenges had to be
made at a time sufficient to "provide[] the trial judge and
opposing counsel with an opportunity to address the matter.
This, in turn . . . created a record which was adequate for
appellate review." Commonwealth v.
Bourgeois, 465 N.E.2d 1180,
1186 n.11 (Mass. 1984); cf. Commonwealth v. Smith, 532 N.E.2d
1207, 1209 (Mass. 1989). Bourgeois made the record creation
16. Our assumption,
arguendo, in light of the state's failure
to raise it as an issue until late, that seven of the jurors
were black does not affect the trial judge's view at the time
that there was some dispute as to the racial identity of the
jurors and that she would have been assisted on this topic of
racial identification had the objection been promptly made.
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25
expectation explicit: "A record in which [the prosecution] has
not had an opportunity to explain the use of peremptory
challenges is inadequate to raise a Soares violation."
Bourgeois, 465 N.E.2d at 1186;
see
also
Commonwealth v.
Colon-
Cruz, 562 N.E.2d 797, 809 (Mass. 1990).
In reported Massachusetts cases on peremptory
challenges, state trial judges have often observed and
questioned the jurors in the course of evaluating the
challenges. See, e.g., Commonwealth v. Latimore, 667 N.E.2d
818, 824 (Mass. 1996); Commonwealth v. Green, 652 N.E.2d 572,
575 (Mass. 1995); Commonwealth v. Paniaqua, 604 N.E.2d 1278,
1280 (Mass. 1992);
Commonwealth v.
Harris, 567 N.E.2d 899, 903-
04 (Mass. 1991); Commonwealth v. Joyce, 467 N.E.2d 214, 218
(Mass. 1984). This indicates that, in these cases, the
objections to the challenges were contemporaneously made.
Nonetheless, this leaves the matter of whether the trial
judge's procedural ruling is based on "firmly established and
regularly followed" rules.
We doubt that the Supreme Court meant that a rule
could not be "adequate" unless articulated with the level of
17. Thus this case appears to be distinguishable from others
where the defendant could not have been "'deemed to have been
apprised of [the state rule's] existence.'"
See
Ford, 498 U.S.
at 423 (quoting NAACP v. Alabama, 357 U.S. 449, 457 (1958)).
18. Trial courts also consider challenges made to similarly
situated non-black jurors, for comparison purposes, in
evaluating challenges in the context of claims of racial bias.
Green, 652 N.E.2d at 577 n.7.
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26
specificity Brewer contemplates. We are satisfied that counsel
for Brewer was adequately on notice of the general
contemporaneous objection rule and of the requirement that a
record be created sufficient to support review of a Batson
claim. That may be enough to satisfy the "adequacy"
requirement.
Brewer, for his part, strenuously contends that the
trial judge's ruling was not a finding of untimeliness, but a
determination, on the merits, that he had failed to make a
prima facie case of discrimination under
Batson. We need not
conclusively resolve whether the trial court's ruling, viewed
as procedural, would constitute an adequate state ground for
decision in the sense of being a rule "firmly established and
regularly followed." Ford, 498 U.S. at 423-24. Even
interpreting the trial judge's ruling in the way Brewer wishes
us to, and thereby reaching the merits of his constitutional
claim, we find that Brewer's petition is doomed.
Brewer's Batson Claims
As Brewer urges we do, we view the state trial
judge's handling of Brewer's Batson claim as a finding that
Brewer failed to show a prima facie case of discrimination.
Brewer's habeas petition nonetheless fails.
19. Brewer relies on language in the order denying Brewer's
new trial motion:
I find no support in the contention that
the Commonwealth improperly excluded
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27
Because the new standard of review for habeas
petitions outlined in AEDPA is not applicable to pending non-
capital cases like Brewer's,
see
Lindh v.
Murphy, 117 S. Ct. --
- (1997), we apply the habeas standard of review unaltered by
AEDPA. Under that standard of review, we review de novo the
state court decision. Martin v.
Bissonette, 1997 WL 374793, at
*3 (1st Cir. July 11, 1997). Within that standard, deference
is given to fact-based determinations of the trial court. 28
U.S.C. S 2254(d) (pre-AEDPA version). Decisions of trial
courts regarding Batson objections are treated with
considerable deference. On direct review, the Supreme Court
has described the ultimate Batson question -- intent to
discriminate -- "as a pure issue of fact" subject to clear
error review. Hernandez v. New
York, 500 U.S. 352, 364, 369
(1991) (plurality opinion); id. at 372 (O'Connor, J.,
concurring). That same clear error standard applies to rulings
on whether the defendant has made a Batson prima facie case.
Bergodere, 40 F.3d at 516 (because a Batson determination is
particularly fact-sensitive, it will be accepted unless shown
to be clearly erroneous). And there is no convincing reason
why a more lenient standard should govern pre-AEDPA federal
minorities from the jury. . . . There was
no showing that the Commonwealth was
excluding blacks solely by reason of their
group membership.
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28
habeas review of state court judgments concerning fact-senstive
Batson determinations. Jones v.
Jones, 938 F.2d 838, 842 (8th
Cir. 1991).
This deferential approach makes particular sense in
the
Batson context. See
Hernandez, 500 U.S. at 365 (plurality
opinion). The trial judge has heard the juror's answers to
voir dire questions or bench conferences with the juror (such
as the individualized voir dire on race bias conducted in this
very case). The trial judge is thus likely to have a much
better sense than any appellate panel of whether a particular
challenge can readily be explained by some reason other than
race or gender -- for example, other characteristics of the
juror, the juror's demeanor, or something in the juror's
background suggesting sympathy for one side or the other. This
court has recognized that considerable deference is owed to a
trial judge who observes the voir dire first hand:
Evaluative judgments concerning juror
suitability are often made partially in
response to nuance, demeanor, body
language, and a host of kindred
considerations. Thus, the trial judge,
who sees and hears both the prospective
juror and the opposing attorneys in
action, is in the best position to pass
judgment on counsel's motives.
Bergodere, 40 F.3d at 517.
The Supreme Court has not detailed what may
constitute a prima facie showing under Batson. Instead, in
Batson itself, the Court said:
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29
For example, a "pattern" of strikes against black
jurors included in the particular venire might give
rise to an inference of discrimination. Similarly,
the prosecutor's questions and statements during
voir dire examination and in exercising his
challenges may support or refute an inference of
discriminatory purpose. These examples are merely
illustrative. We have confidence that trial judges,
experienced in supervising voir dire, will be able
to decide if the circumstances concerning a
prosecutor's use of peremptory challenges creates a
prima facie case of discrimination against black
jurors.
Batson, 476 U.S. at 97. The Supreme Court has directed trial
judges to consider "all relevant circumstances" in determining
whether a prima facie case of racial discrimination has been
established. Id. at 96-97. The Supreme Court has thus largely
left the question of what constitutes a prima facie case to the
wisdom of trial judges themselves. Here, the trial judge, in
light of all the circumstances, did not require the prosecution
to state a rationale for these strikes, as would have been done
if the judge had found a prima facie case of discrimination.
In
Bergodere, this court noted, in rejecting a
Batson
claim based on the peremptory challenge of the only black
venireperson, that "[a] defendant who advances a Batson
argument ordinarily should 'come forward with facts, not just
numbers alone.'" Id. at 516 (citing United
States v. Moore,
895 F.2d 484, 485 (8th Cir. 1990) and United
States v. Dawn,
897 F.2d 1444, 1448 (8th Cir. 1990)). The Seventh Circuit has
similarly expressed reservations about the use of numbers
alone. McCain v. Gramley, 96 F.3d 288, 292 (7th Cir. 1996),
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30
cert.
denied, 117 S. Ct. 1320 (1997);
see
also
United States
v.
Ferguson, 23 F.3d 135, 141 (6th Cir. 1994).
We need not determine whether statistical disparity
alone can demonstrate a prima facie case, a position adopted by
many courts. See,
e.g.,
Turner v.
Marshall, 63 F.3d 807, 812-
13 (9th Cir. 1995); United
States v. Alvarado, 923 F.2d 253,
255-56 (2d Cir. 1991); see also 2 LaFave & Israel, Criminal
Procedure S 21.3, at 257 n.135.7 (Supp. 1991) (citing cases).
This case in the trial court might have been regarded as fairly
close, and the facts are such that we might have upheld the
trial judge if she had found a prima facie case. It is enough
to say that the numbers here, particularly in the absence of
circumstances suggesting juror bias, judge insensitivity, or
improper motive by the state prosecutor, were not so blatant as
to compel the judge to make such a finding.
It is the defendant who carries the burden of
persuasion regarding the existence of a prima facie case. See
Bergodere, 40 F.3d at 515. Part of that burden includes the
duty to show circumstances sufficient, when combined with the
demonstration that the prosecution's challenge was directed at
20. Here, the numbers at first blush may give one pause,
since, at the time of Brewer's initial objection, the
prosecution had used four of its nine challenges against
blacks, thus excluding four of the six blacks seated in the
jury box (assuming the race of the jurors as Brewer claimed, a
fact not established). However, the state trial judge had
observed the process and apparently saw nothing serious enough
to demand reasoning from the prosecution.
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31
a member of a cognizable racial group and the demonstration
that the challenge was peremptory, to raise an inference that
the prosecutor struck the venireperson on account of race.
See
Batson, 476 U.S. at 96; Bergodere, 40 F.3d at 515-16. The
trial judge here was not persuaded that such an inference of
discrimination was raised, and having found no clear error in
the trial judge's decision, neither are we.
Fundamental Miscarriage of Justice
We note that Brewer does suggest that he is actually
innocent of this crime. Although this is not a capital case
where further review may be required,
Sawyer v.
Whitley, 112 S.
Ct. 2514 (1992), we explain why we think this case works no
fundamental miscarriage of justice. Under Batson, if the
petitioner had established a prima facie case of
discrimination, the prosecution would have then been required
to articulate nondiscriminatory reasons for its challenges.
Purkett, 115 S. Ct. at 1770-71. Here, the prosecution was not
required to provide such an explanation at the time and was
unable to recall its reasons when the habeas petition was
brought seven years later.
There is some reason to think there was no infection
of the process at all. The trial judge was herself quite
sensitive to issues of bias -- it was she, and not counsel, who
initially suggested voir dire as to bias, and she returned to
the point several times. The venire members were, in the end,
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32
asked whether they were prejudiced against African Americans or
Hispanics and one was dismissed for bias. Such a voir dire
creates a "high probability that the individual jurors seated
in a particular case were free from bias."
Allen v.
Hardy, 478
U.S. 255, 259 (1986) (per curiam). Accordingly, we do not
think that the factfinding process was tainted, causing a
miscarriage of justice here. Id.
Of course, the core
Batson principle is that "states
do not discriminate against citizens who are summoned to sit in
judgment against a member of their own race." Allen, 478 U.S.
at 259. This principle "strengthens public confidence in the
administration of justice." Id. As to the first four jurors,
we have no evidence that the Commonwealth was discriminating
against black venire members. But as to the fifth juror, the
prosecution did have a valid nondiscriminatory reason for the
challenge.
The Brady Claim
As to the claim that the boyfriend's identity should
have been earlier disclosed, we agree with the district court
that there was no Brady violation. The trial court correctly
applied federal law, and her factual determinations were
certainly not clearly erroneous. See 28 U.S.C. S 2254(d) (pre-
AEDPA version).
Brewer did not ask for the boyfriend's identity
until the first day of trial, and when he did obtain it, he did
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33
not ask for a continuance to make full use of the information.
Most important, as the district court so aptly observed, "there
is no evidence the government knew that the boyfriend's
identity was potentially exculpatory prior to trial. . . . The
government believed the boyfriend was the semen donor and that
this evidence, in itself, was incriminatory rather than
exculpatory." The rule in Brady does not typically apply
unless the prosecutor has knowledge of the exculpatory
evidence. See,
e.g.,
United States
v.
Moore, 25 F.3d 563, 569
(7th Cir. 1994).
That Brewer later produced evidence that the
boyfriend was not the source of the semen does not put "the
whole case in such a different light as to undermine confidence
in the verdict." Kyles v. Whitley, 115 S. Ct. 1555, 1565
(1995). Given all the evidence, Brewer has not met his
burden.
The grant of the writ of habeas corpus is reversed
and the writ is vacated.
21. As the district court noted, the victim testified Brewer
penetrated her twice, once with a condom and once without, but
there was no evidence he ejaculated.
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34