Brown v. Maloney

United States Court of Appeals
For the First Circuit
____________________

No. 00-2556

DAMON BROWN,

Petitioner, Appellant,

v.

MICHAEL T. MALONEY, ET AL.,

Respondents, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker, Senior U.S. District Judge]

____________________

Before

Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

____________________

Benjamin H. Keehn, Committee for Public Counsel Services, for
appellant.
James J. Arguin, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief, for appellee.

____________________
 October 11, 2001
____________________
LYNCH, Circuit Judge. Damon Brown is a state prisoner

convicted of armed assault with intent to murder and related

charges arising out of a shooting spree that left several people

injured during a Caribbean festival in Boston in 1993. His

conviction was affirmed on appeal. Commonwealth v. Blake, 428

Mass. 57, 696 N.E.2d 929 (1998). Brown filed a federal petition

for habeas corpus, which was denied by the district court.

Petitioner Brown, ably represented, presents two issues,

challenging the determinations of the Supreme Judicial Court of

Massachusetts (SJC) as contrary to or an unreasonable

application of clearly established U.S. Supreme Court

constitutional precedent. 28 U.S.C. § 2254(d) (Supp. II 1996).

Brown’s first attack is on the SJC's rejection of his

constitutional challenge, based on Bruton v. United States, 391

U.S. 123 (1968), to the admission of testimony from two

codefendants. His second attack is on the SJC's determination

that there was adequate evidence to support his conviction of

assault with intent to murder in light of what he claims is

inadequate evidence as to one of the two theories of conviction.

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Two theories had been argued by the prosecution: that Brown was

a principal shooter and that, in any event, he participated in

a joint venture with others in the shootings. The SJC rejected

Brown's argument that there was insufficient evidence of joint

venture, and so rejected his argument that he was entitled to a

new trial under the Massachusetts rule established in

Commonwealth v. Plunkett. 422 Mass. 634, 664 N.E.2d 833, 834,

838 (1996) (holding that, if there is insufficient evidence to

support one theory in an alternative theory murder conviction,

then the defendant is entitled to a new trial). Plunkett, as

the opinion acknowledges, id. at 837, is more defendant-friendly

than the parallel federal rule established in Griffin v. United

States, 502 U.S. 46 (1991), which holds that no new trial is

required on a multi-object conspiracy conviction where there is

insufficient evidence on one object, but adequate evidence on

other objects, id. at 54-56. Brown asserts that the Supreme

Judicial Court's factual determination was unreasonable, that a

reasonable determination required use of the Plunkett rule, and

that the state's failure, in turn, to apply the state Plunkett

rule violates his federal due process rights.

We affirm the denial of habeas relief.

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 I.

The evidence at trial, taken favorably to the

conviction, shows Brown fired into the celebrating crowd after

he attempted to snatch a gold chain from the neck of a man at

the festival in the Dorchester neighborhood of Boston. As his

victim pulled away, Brown pulled out an automatic pistol and

started shooting at him. Two others, friends of Brown's, also

started shooting, scattering the crowd. Several people were

wounded in the shooting.

Brown was tried along with two codefendants who were

charged with shooting into the crowd after Brown began firing.

Brown's defense was that this was a case of misidentification.

The defense was not strong: the first victim and at least one

witness to the shootings knew Brown from high school and

identified him. The defense countered this by questioning the

reliability of eyewitness identification in the confusion of the

crowd.

Brown's codefendants, Rentas and Blake, did not testify

at trial, but their statements to the grand jury were introduced

as evidence against Rentas and Blake. In those statements, the

codefendants said that, on the evening in question, they, along

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with Brown, were at a birthday party at Rentas's apartment,

which was located near the site of the shooting. According to

the codefendants' confused and somewhat contradictory

statements, Brown was at the party from approximately seven

o'clock in the evening until somewhere between eight and ten

o'clock at night. The shooting took place, approximately,

shortly after eight o'clock.

The Commonwealth had argued two different theories to

the jury in support of the assault with intent to murder

charges: that Brown was himself a principal shooter and that

Brown was a joint venturer with Blake and Rentas. The jury was

properly instructed as to both theories. It was also instructed

not to use the statements made by one codefendant as evidence of

guilt of a different defendant. The jury verdict of guilt on

assault with intent to murder did not specify the theory or

theories relied upon.

II.

On appeal to the SJC, Brown argued that the admission

at trial of the out-of-court statements of his codefendants

violated his right to confront witnesses against him granted by

the Sixth Amendment to the United States Constitution, as

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articulated in Bruton, 391 U.S. 123. In Bruton, the Supreme

Court held that a nontestifying codefendant's confession that

directly inculpated another defendant by name could not be

admitted at trial, and the Confrontation Clause problem was not

cured by a clear instruction to the jury to consider the

statement only as evidence against the codefendant. Id. at 137.

Addressing Brown's Bruton claim, the SJC observed that "[a]

codefendant's statement which becomes incriminating 'only when

linked with evidence introduced later at trial,' however,

generally does not offend the Sixth Amendment, so long as an

adequate limiting instruction is given." Blake, 696 N.E.2d at

932 (quoting Richardson v. Marsh, 481 U.S. 200, 208 (1987)).

Therefore, the SJC held that Bruton did not apply because the

evidence did not expressly implicate Brown in the shooting and

was even exculpatory. Id. at 932-33.

Brown also argued he was entitled to a new trial under

Plunkett because there was not sufficient evidence to support a

guilty verdict under the joint venture theory. The SJC rejected

that based on its review of the record. The court noted that

"[e]vidence of a prior agreement between Brown and the others is

not required because Brown's continued firing after being joined

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by others supports the inference that . . . [they] shared the

intent to aid each other" and noted that Brown was seen fleeing

the scene with the others. Id. at 934. Brown also now argues,

as he did in the district court and in his petition for

rehearing to the SJC, that the failure to apply Plunkett

constitutes a due process violation. However, he did not make

this argument in his initial filings with the SJC. Nonetheless,

the Commonwealth has not argued either waiver or a failure to

exhaust, but has addressed the claim on the merits and so shall

we.

III.

A habeas petition may not be granted unless the state

court decision: (1) "was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States" or (2)

"was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding."

28 U.S.C. § 2254(d). A state court's holdings on factual issues

"shall be presumed to be correct" and the petitioner bears the

burden of disproving factual holdings by "clear and convincing

evidence." 28 U.S.C. § 2254(e)(1).

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 The "unreasonable application" prong under § 2254(d)(1)

reduces to the question of whether the state court's derivation

of a case-specific rule from the Supreme Court's jurisprudence

on the point appears to be objectively reasonable. The test is

not so stringent as to require that all reasonable jurists agree

the state court decision was unreasonable. See Williams v.

Taylor, 529 U.S. 362, 409-10 (2000); Hurtado v. Tucker, 245 F.3d

7, 12-17 (1st Cir. 2001) (rejecting state prisoner's habeas

application based on insufficiency of evidence claim).

The SJC's decision does not discuss Brown's due process

claim, since, as noted above, Brown did not raise this claim

until his petition for rehearing. In the absence of reasoning

on a holding from the state court on the issue, we cannot say

the claim was "adjudicated on the merits" within the meaning of

28 U.S.C. § 2254(d). Therefore, we review the due process issue

de novo as "we can hardly defer to the state court on an issue

that the state court did not address." Fortini v. Murphy, 257

F.3d 39, 47 (1st Cir. 2001).

IV.

Bruton issue

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 The parties hold fundamentally different views as to

the reach of Bruton. Bruton granted a new trial, finding error

in the admission in a joint trial of a nontestifying

codefendant's confession which directly implicated the

defendant. 391 U.S. at 125-26, 137. The Court held this

violated the Confrontation Clause of the Sixth Amendment to the

Constitution, even though the jury had been instructed not to

consider the codefendant's statement on the issue of the

defendant's own guilt. Id. at 137.

The Commonwealth takes the position that the alibi

evidence from the codefendants was exculpatory on its face, that

the SJC was correct in so viewing it, and that Bruton does not

apply to codefendants' statements which appear to be

exculpatory. The real question, initially, is not whether the

statement is exculpatory, but whether it is inculpatory.

Brown rejoins that the so-called alibi evidence was not

exculpatory at all, but was in fact inculpatory. It was, he

stresses, offered by the prosecution and inculpated him in two

senses. First, it put him within a few hundred yards of the

shooting at about the time of the crime. Second, if the jury

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concluded the alibi was false, the giving of an alibi showed

consciousness of guilt.

On the first point, Brown notes that the trial began

with the jurors viewing the location of the crime scene and of

Rentas's apartment. A juror with knowledge of the neighborhood

might not even need the view to make the connection. Thus,

without more, the jurors knew from the codefendants' statements

that Brown was within easy reach of the crime scene during the

relevant period of time. Indeed, Rentas gave an imprecise

estimate of when Brown left the party -- anytime between "[l]ike

an hour" after seven (that is, just before the shooting) and

nine-thirty. From this, Brown says the evidence was inculpatory

without requiring much linkage to other evidence at all, and so

is not governed by the Supreme Court's holding in Richardson v.

Marsh, 481 U.S. 200 (1987), discussed below.

On the false alibi theory of inculpation, Brown relies

on a 1983 Sixth Circuit opinion, Lyle v. Koehler, 720 F.2d 426,

429-35 (6th Cir. 1983). That case analyzed as a Bruton problem

the introduction of letters from a codefendant attempting to

establish a false alibi for both the codefendant and Lyle

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(referred to by a different name), which incriminated Lyle by

connecting him with the attempt to obtain a false alibi. Id.

Further, Brown argues the admission of the

codefendants' statements harmed him by limiting his ability to

disclaim his statements, made to a police detective, who

testified that Brown told police that he was at Rentas's

apartment the night of the shooting. It is pure fiction to

think this evidence, sponsored by the prosecution, is

exculpatory, Brown says.1 Rather, he argues, it should be

thought of as inculpatory, not exculpatory. Indeed, the SJC

found that the alibi statements were admissible as consciousness

of guilt evidence, in light of the testimony of eyewitnesses to

the shooting which tended to establish the falsity of the

alibis. Blake, 696 N.E.2d at 931 n.5.

The Commonwealth replies that even if the evidence had

the effect of inculpating Brown, it was not facially inculpatory

and so Bruton, as limited by subsequent Supreme Court cases,

1
Of course, the fact that the prosecution offered the
evidence does not itself mean that Bruton's inculpatory evidence
test has been met. In every Supreme Court case dealing with
Bruton, whether the Court found a Bruton problem or not, the
prosecution offered the evidence.

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e.g., Richardson, 481 U.S. at 208, does not apply. If the

evidence becomes inculpatory only by reviewing other evidence in

the record, the Commonwealth argues, then such evidence is also

not within Bruton. The Commonwealth's view is that Bruton does

not apply if the codefendant's statement is not facially

inculpatory or if linkage is required to make it inculpatory.

The Commonwealth further asserts that, in any event, it could

hardly be contrary to, or an unreasonable application of,

existing Supreme Court precedent for the SJC to conclude that

Bruton does not apply.

The parties each rely on Supreme Court cases, which

further elaborate on the Bruton rule, to support their

arguments. The Commonwealth relies on Richardson, which held

that Bruton did not apply to a codefendant confession which "was

not incriminating on its face, and became so only when linked

with evidence introduced later at trial," arguing this limits

Bruton to facially incriminating statements. 481 U.S. at 208;

id. at 203-04, 211 (holding that redacted codefendant confession

that did not mention defendant's presence when crime was being

planned was not covered by Bruton, despite fact that jury

learned of defendant's presence from later evidence). In

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Richardson, the Court rejected a "contextual implication"

interpretation of Bruton, which "would presumably require the

trial judge to assess at the end of each trial whether, in light

of all of the evidence, a nontestifying codefendant's confession

has been so 'powerfully incriminating' that a new, separate

trial is required." Id. at 209.

Brown cites Gray v. Maryland, 523 U.S. 185, 188 (1998),

which held that the Bruton rule applies to codefendant's

statements where the defendant's name has been replaced by a

blank space or redaction symbol, and Cruz v. New York, 481 U.S.

186, 193 (1987), which held that the Bruton rule applies even

where the codefendant's statement merely corroborates

defendant's own confession. He argues that Gray and Cruz focus

the Bruton inquiry on the effect of the codefendant statements

upon the jury. For instance, in Gray, the Court held that a

"jury will often realize that [a redacted] confession refers

specifically to the defendant" and "the obvious deletion may

well call the jurors' attention specifically to the removed

name." Gray, 523 U.S. at 193. In Cruz, the Court emphasized

that the "codefendant's confession will be . . . enormously

damaging if it confirms, in all essential respects, the

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defendant's alleged confession" where, "in the real world of

criminal litigation, the defendant is seeking to avoid his

confession." 481 U.S. at 192. More significantly, Gray

modified any reading of Richardson as applying whenever the jury

had to rely on any context or inference at all. Gray said that

it is the type of the inference, and not the fact of the

inference, which is important. Gray, 523 U.S. at 195-96. See B.

Rosenberg, The Future of Codefendant Confessions, 30 Seton Hall

L. Rev. 516, 528-36 (2000). On habeas review, our task is not

to resolve these tensions, but only to resolve the question of

whether the state court decision is contrary to, or an

unreasonable application of, clearly established Supreme Court

constitutional rulings.

It is plain here, from the very discussion above, that

the SJC decision is not "contrary to" clearly established

Supreme Court precedent. The facts of this case do not fit the

patterns of the decided Supreme Court cases. The SJC's ruling

is also not an unreasonable application of such precedent. This

is not the archetypal powerful evidence of a confession from a

codefendant that also implicates the defendant, as in Bruton.

Here, there were no confessions at all from codefendants that

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implicated Brown. There were also no confessions merely

establishing the existence of another guilty party, which the

jurors could infer was Brown. Nonetheless, the SJC adopted

Brown's argument that the hearsay evidence claim was

appropriately analyzed under Bruton. Here, there were simply

alibi statements from codefendants, which some observers would

view to be inculpatory, while others would not. The "alibi"

statements of the codefendants say they were at a party with

defendant when the shootings took place. That was exculpatory.

But the fact that the place of the party was very close to the

place of the shootings and that it was a party, with people

coming and going, undercut Brown's defense, and so was

inculpatory.

The SJC cited both to Gray and to Richardson, the

pertinent Supreme Court opinions. It was certainly reasonable

for the SJC to conclude that the facts here were more within the

Richardson ambit than the Gray ambit: there was no confession

which facially incriminated Brown; the information became

somewhat incriminating when it was shown at trial that the alibi

location was very close to the crime location. And the trial

judge gave a limiting instruction that each statement was to be

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used only against the defendant who said it. In the absence of

powerful incriminating evidence such as the confession in

Bruton, it was not an unreasonable judgment by the SJC that the

jury would follow these instructions.

Brown's argument that the evidence, by putting him in

the vicinity of the crime, was inculpatory is not frivolous.

But it is not unreasonable for the SJC to conclude there is no

clearly established Supreme Court precedent that admission of

evidence of this sort, which may be inculpatory but is not a

confession directly implicating Brown, violates Bruton.

Brown's argument is less strong as to the second theory

of inculpation -- false alibi. Even if the Sixth Circuit

precedent in Lyle is read to support his position, it is Supreme

Court precedent that is the focus under § 2254.

On these facts, Brown has not met the standard for

habeas relief.

General Verdict and Two Theories of Guilt

Brown's second argument hinges on transforming a state

appellate rule as to appropriate remedy, which is more favorable

to defendants than the constitutional rule set by the Supreme

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Court, into a constitutional right. Brown makes a three step

argument. He argues that there was insufficient evidence to

support the joint venture theory, even if there was adequate

evidence to support his liability as a principal. He next says

he was entitled to a new trial under Plunkett. Thirdly, from

this, he argues, his due process rights under the United States

Constitution were violated. We take the argument in stages.

In order to prove a joint venture under Massachusetts

law, the Commonwealth must establish as elements: (1) that the

defendant was "present at the scene of the crime, (2) with

knowledge that another intends to commit the crime or with

intent to commit a crime, and (3) by agreement is willing and

available to help the other if necessary." Commonwealth v.

Green, 420 Mass. 771, 652 N.E.2d 572, 578 (1995). Brown argues

that the SJC findings supporting the joint venture theory,

specifically the finding that he continued firing after his

codefendants fired, are an objectively unreasonable conclusion

because the SJC misread what is the actual evidence on the

record. In support of this, he cites witness testimony that

there were three separate rounds of fire, likely attributable

separately to the three codefendants. He further argues that

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the evidence, on which the SJC relied, concerning the

codefendants' joint flight was legally irrelevant, as evidence

of post-incident cooperation does not speak to the question of

whether Brown knew that his codefendants would step in to

support him.

The district court rejected these arguments, finding

that the SJC's factual conclusion was objectively reasonable.

The district court buttressed the SJC's conclusion by noting

also that the codefendants knew each other and were at a party

together before the incident occurred. Brown v. Maloney, No.

99-CV-10731-MEL, slip op. at 6-7 (D. Mass. Nov. 2, 2000).

We consider this a close question, even with the

presumption of correctness. Brown's argument, from the

evidence, is far from frivolous. The evidence as to joint

venture was very thin indeed and, unlike the usual sufficiency

of the evidence argument made on habeas, we have no way of

knowing whether the jury here found the evidence on joint

venture sufficient. Cf. Hurtado, 245 F.3d at 19 ("[F]ederal

courts should be particularly cautious

about issuing habeas, on grounds of the objective

unreasonableness of a state court's conclusion that the evidence

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is sufficient, where there has been a verdict of guilt by a jury

of a defendant's peers, where the defendant's credibility was

evaluated by the jury hearing his testimony, where that verdict

has been affirmed on appeal in the state system, and where there

is no claim of constitutional error in the conduct of the

trial."). The evidence on the "principal" theory of guilt was

far stronger and, in our view, the far more likely basis for the

conviction. But we need not reach the question of whether the

state court made an "unreasonable determination of the facts"

under 28 U.S.C. § 2254(d)(1) as to joint venture because Brown's

argument falters in its latter stages.

In order to prevail on a habeas claim, Brown must here

show that his conviction was based upon a violation of the

Constitution. We do not need to reach Brown's broader

contention that some violations of state law may infringe

liberty interests sufficiently to amount to a violation of

federal constitutional rights. Cf. Hicks v. Oklahoma, 447 U.S.

343 (1980) (due process violation where state created a right to

be sentenced by the jury, jury was instructed to sentence under

statute later held unconstitutional and jury may well have, if

properly instructed, imposed much lesser sentence). Due process

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problems in the application of state laws by state courts most

frequently arise under the ex post facto clause and related due

process constraints when the state changes a law or a rule.

See, e.g., Hamm v. Latessa, 72 F.3d 947 (1st Cir. 1995). That

is not the situation here: the state has not changed its rule,

but rather has concluded that, based on its factual

determinations, the rule does not apply. If the state court, on

a close question, erroneously drew certain factual conclusions,

that alone does not establish a due process violation.

Under federal constitutional law, in contrast to

Massachusetts law, Brown has no right to a new trial as a remedy

where his claim is that there was insufficient evidence to

support one theory of conviction on the count but concedes that

there was sufficient evidence as to the other theory. Griffin,

502 U.S. at 60. Brown's argument, based solely on factual

inadequacy, does not fit within the exception to the Griffin

rule for convictions that rest on a theory resulting from error

of law or unconstitutionality. See United States v. Nieves-

Burgos, 62 F.3d 431, 435-36 (1st Cir. 1995) (discussing

exception). Brown's claim fails at the third stage of his

argument. Brown argues that if the SJC failed to follow its own

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Plunkett rule, then that deviation amounts to a deprivation of

his due process rights protected by the federal Constitution.

Ordinarily a federal court may not issue a writ "based on a

perceived error of state law," although there may be an

exception "if an error of state law could be sufficiently

egregious to amount to a denial of equal protection or of due

process of law." Pulley v. Harris, 465 U.S. 37, 41 (1984). See

also Barclay v. Florida, 463 U.S. 939, 957-58 (1983) (plurality

opinion) ("[M]ere errors of state law are not the concern of

this Court unless they rise for some other reason to the level

of a denial of rights protected by the United States

Constitution.") (citation omitted). But even if the SJC made an

unreasonable determination of the facts here, we cannot say that

its failure to apply its own judicially-crafted rule of granting

new trials in dual theory/general verdict cases rose to the

level of a deprivation of due process where the federal rule

governing the same situation would not require a new trial. See

Barclay, 463 U.S. at 969-70 (Stevens, J., concurring) (noting

that, although state court may have considered aggravating

factors not allowed by state law, there was no federal

constitutional violation); Richards v. Solem, 693 F.2d 760, 767

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(8th Cir. 1982) ("[F]ailure to follow state procedures makes out

a constitutional violation only if the failure to follow them

renders the proceedings so fundamentally unfair they are

inconsistent with the rudimentary demands of fair procedure.").

There was nothing fundamentally unfair about the conclusion the

SJC reached, and so there was no basis for Brown's due process

claim.

V.

Conclusion

The denial of the habeas petition is affirmed.

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