United States Court of Appeals
For the First Circuit
No. 03-1423
RUSSELL J. HORTON,
Petitioner, Appellant,
v.
PETER ALLEN, 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
Selya and Howard, Circuit Judges,
and Singal,** District Judge.
Emanuel Howard for appellant.
Annette C. Benedetto, Assistant Attorney General with whom
Thomas F. Reilly, Attorney General, was on brief, for appellees.
May 26, 2004
*
Of the Southern District of New York, sitting by designation.
**
Of the District of Maine, sitting by designation.
HOWARD, Circuit Judge. Petitioner Russell Horton, a
Massachusetts state prisoner convicted of two first-degree murders,
appeals from the denial of his petition for a writ of habeas
corpus. We affirm.
I. Factual Background
In June 1998, a jury convicted Horton of committing two
first-degree murders and an assault with the intent to murder. We
provide a summary of the evidence introduced at Horton's trial.
See Commonwealth v. Horton, 753 N.E.2d 119, 122-24 (Mass. 2001).
On May 25, 1994, the three victims, Carlos and Manuel
Araujo and Kepler Desir drove together from Boston to Brockton,
Massachusetts. During the drive, Desir instructed Manuel to pick
up Horton and Frederick Christian on Owens Street in Brockton.
Desir knew these two men, but the Araujos did not. Christian and
Horton got into the back seat of the car with Carlos, and the five
men drove off together.
During the drive, Horton announced that he wanted to rob
some "Dominican drug dealers" and instructed Manuel to drive to a
certain location where he could carry out his plan. Along the way,
Horton exposed a gun and asked the others if they had weapons.
They claimed that they did not. Upon arriving at the site, Horton
and Christian left the car but returned shortly, claiming that they
were unable to complete the robbery. After reentering the car,
Horton instructed Manuel to drive to a nearby parking lot.
-2-
In the parking lot, while staring out the window, Carlos
was shot in the head. He immediately slumped forward, pretending
to be dead. After two more shots were fired, Carlos heard Horton
say, "Go through their pockets." Carlos then sensed Christian move
from his seat and heard him ask Horton, "Did you do him?" Several
minutes later, Christian and Horton departed the scene.
After laying still for a few more moments, Carlos saw the
bodies of Manuel and Desir and ran to the nearest house for help.
Carlos told the people in the house that "Russell" had shot him.
Later, at the hospital, Carlos repeated that "Russell" had shot
him.
Barry Stephens lived near the parking lot where the
murders occurred and knew Horton and Christian. He testified that
Horton had sold drugs for Desir but, because of a recent falling
out, Horton was no longer working for Desir. He also testified
that, on the night of the murders, he had heard gun shots, and that
five minutes later, Horton and Christian had arrived at his house.
According to Stephens, Horton "was foaming at the mouth" and
looking "wild." Horton told him that, "[He] smoked him . . . [He]
smoked all three of them." In particular, Horton said that he had
"smoked Quarter," which was Desir's nickname. Stephens told Horton
and Christian to leave immediately.
At the time of the murders, Christian was in financial
trouble. On the day of the shootings, Christian stated that he
-3-
needed money and asked Desir for drugs on credit, a request which
Desir refused. Horton and Christian believed that Desir was
carrying a large amount of cash on the night of the murders because
he was planning to travel to New York later that night to buy
several thousand dollars worth of drugs.
Horton gave inconsistent statements concerning his
whereabouts on the night of the murders. He first told the police
that he had met up with Christian, that they had gone for a walk
with another friend, and had gone home at approximately 11 p.m.
After the police indicated that they intended to search the car for
fingerprints and talk to Christian, Horton changed his story. He
stated that he and Christian were with Desir and two other men, and
that they had driven to Fuller Avenue, where he and Christian left
to buy drugs. He told the police that he expected Desir to return
to pick him up, but Desir never did.
II. Procedural Background
The trial court sentenced Horton to concurrent life terms
of imprisonment for the murders and a 10-15 year term for the
assault. Horton subsequently filed a motion for new trial, see
Mass. R. Crim. P. 30, which was denied by the trial court.
Thereafter, the Supreme Judicial Court of Massachusetts (SJC)
rejected Horton's direct appeal and his appeal from the denial of
his new trial motion. See Horton, 753 N.E.2d at 131.
-4-
Horton then filed a timely petition for a writ of habeas
corpus in the United States District Court for the District of
Massachusetts. See 28 U.S.C. § 2254(d). In his petition, Horton
claimed that (1) his right to a public trial was violated; (2) his
right to confront witnesses was violated; (3) the jury instructions
were incorrect; and (4) his trial counsel was ineffective. In an
unpublished memorandum and order, the district court rejected the
petition. See Horton v. Maloney, No. 02-CV-10416-MEL, (D. Mass.
Feb. 5, 2003). Horton obtained certificates of appealability for
each of the claims, except the jury instruction issue. See 28
U.S.C. § 2253.
III. Discussion
Horton's appeal raises three claims. First, he argues
that the trial court violated his Sixth Amendment right to a public
trial by holding the individual voir dire of potential jurors in an
anteroom rather than the courtroom. Second, he contends that the
trial court violated his Sixth Amendment right to confront
witnesses by admitting certain hearsay testimony. Third, he
asserts that his Sixth Amendment right to effective counsel was
violated because defense counsel did not call certain alibi
witnesses and failed to interview certain potential character
witnesses.
Horton's habeas corpus petition is governed by the
Antiterrorism and Effective Death Penalty Act (AEDPA). See 28
-5-
U.S.C. §§ 2244-2266. Under the AEDPA, a federal court may grant a
habeas petition if it finds that the state court adjudication
"resulted in a decision that was contrary to, or involved an
unreasonable application of clearly established Federal law." 28
U.S.C. § 2254(d)(1).
Under the "contrary to" prong of 28 U.S.C. § 2254(d)(1),
the petition may be granted if the state court "arrives at a
conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently
than [the Supreme] Court has on a set of materially
indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-
13 (2000). Under the "unreasonable application" prong of 28 U.S.C.
§ 2254(d)(1), the petition may be granted if the state court
"identifies the correct governing legal principle from [the
Supreme] Court's decisions but unreasonably applies that principle
to the facts of the prisoner's case." Id. at 413. To be an
unreasonable application of governing law, the state court's
determination must not only be incorrect but also be objectively
unreasonable. Id. at 410-11. In other words, if the petition
presents a close call, it must be rejected, even if the state court
was wrong. See Nom v. Spencer, 337 F.3d 112, 116 (1st Cir. 2003).
If, however, the petition presents a federal claim that was raised
before the state court but was left unresolved, the AEDPA's strict
standards do not apply. See Fortini v. Murphy, 257 F.3d 39, 47
-6-
(1st Cir. 2001). In such a circumstance, we review the claim de
novo. See Norton v. Spencer, 351 F.3d 1, 5 (1st Cir. 2003).
A. Public Trial
Horton and the prosecution jointly requested that the
trial court conduct an individual voir dire of prospective jurors
to ask them about the effect that racial prejudice and pretrial
publicity could have on their ability to decide the case
impartially.1 Massachusetts law requires that an individual voir
dire be conducted "outside the presence of other persons about to
be called as jurors or already called." Mass. Gen. L. ch. 234, §
28. To comply with this statute, the court conducted the
individual voir dire in an anteroom, while the other potential
jurors waited in the courtroom. Horton and his counsel were
present for the entire proceeding, and Horton was able to aid his
counsel throughout.2 Defense counsel did not object to conducting
the individual voir dire in the anteroom. Accordingly, the SJC
held that the issue was not preserved for appellate review and
considered it only for "a substantial likelihood of a miscarriage
of justice." Horton, 753 N.E.2d at 127. The SJC rejected the
claim because Horton did not suffer prejudice from the voir dire
procedure. Id. at 128.
1
Horton is African American.
2
The judge, prosecutor, clerk, court reporter, and court
officer were also present.
-7-
Citing Press-Enterprise Co. v. Superior Court, 464 U.S.
501 (1984), Horton argued in the district court that this voir dire
procedure violated his right to a public trial because the public
was excluded from attending the individual juror questioning. The
district court rejected this claim on procedural default grounds
because defense counsel did not object at trial.
Generally, habeas review is precluded when a state court
reaches its decision on an independent and adequate state law
ground. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). A
state court's decision to find a forfeiture, based on the
defendant's failure to object at trial, is an independent and
adequate ground for decision so long as the state court
consistently applies its contemporaneous objection rule and has not
waived it in the particular case by basing the decision on some
other ground. See Burks v. Dubois, 55 F.3d 712, 716 (1st Cir.
1995). That is the situation here. The SJC consistently enforces
the rule that unpreserved claims are forfeited, see Gunter v.
Maloney, 291 F.3d 74, 79 (1st Cir. 2002), and enforced the rule in
the instant case, see Horton, 753 N.E.2d at 127. The SJC did
review the claim for a "substantial miscarriage of justice," id.,
but this sort of limited review does not work a waiver of the
contemporaneous objection requirement. See Gunter, 291 F.3d at 79-
80; Dubois, 55 F.3d at 716 n.2; Tart v. Massachusetts, 949 F.2d
-8-
490, 496 (1st Cir. 1991); Puleio v. Vose, 830 F.2d 1197, 1200 (1st
Cir. 1987).
Because the SJC resolved Horton's claim on state law
grounds, the habeas court may consider the claim if Horton
establishes "cause and prejudice" with respect to the procedural
default.3 See Dretke v. Haley, –- U.S. --, 124 S.Ct. 1847, 1851-52
(2004); Coleman, 501 U.S. at 750. To satisfy the cause portion of
the test, Horton must show "that some objective factor external to
the defense impeded counsel's efforts to comply with the State's
procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986).
One way to establish cause is to demonstrate that defense counsel's
inaction constituted ineffective assistance of counsel. See
Coleman, 501 U.S. at 752; Carrier, 477 U.S. at 488; Gunter, 291
F.3d at 81. Horton takes this tack in an effort to establish
cause.
Under Strickland v. Washington, 466 U.S. 668, 688 (1984),
counsel's performance is ineffective only if it was objectively
unreasonable under prevailing professional norms.4 To prevail on
3
A procedural default may also be excused if the defendant
shows a fundamental miscarriage of justice, i.e., "a constitutional
violation that has probably resulted in the conviction of one who
is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995)
(internal quotations and citations omitted). Horton has made no
such showing here.
4
Strickland also requires a demonstration of prejudice, i.e.,
"a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
466 U.S. at 694. Citing Waller v. Georgia, 467 U.S. 39, 49-50 &
-9-
his claim, Horton must overcome the "strong presumption that . . .
the challenged action might be considered sound trial strategy."
Tejeda v. Dubois, 142 F.3d 18, 22 (1st Cir. 1998) (quoting
Strickland, 466 U.S. at 689). Horton contends that his counsel was
ineffective by failing to object to the voir dire procedure because
the "public trial right of a criminal defendant was clearly
established by the time of trial." The trial court rejected this
claim, finding that Horton's counsel welcomed the individual voir
dire procedure because "it was most conducive to eliciting candid
responses by the jurors on possible prejudice." The SJC agreed,
noting that "the less public setting for the voir dire in all
likelihood helped rather than harmed [Horton]." Horton,753 N.E.2d
at 128.5
n.9 (1984), Horton argues that the prejudice prong of Strickland is
automatically satisfied because the denial of a public trial is a
structural error. Because, as discussed in the text, we resolve
the ineffective assistance claim on the performance prong of the
analysis, we do not decide if prejudice would be presumed in the
present circumstances.
5
Horton has not introduced competent evidence to challenge
the state court's finding that defense counsel welcomed the voir
procedure for strategic reasons. See 28 U.S.C. § 2254(e)(1)
(stating that in habeas proceeding state court factual
determinations are presumptively correct absent contrary showing by
clear and convincing evidence). The only arguably contrary
information is an affidavit from Horton's habeas counsel containing
a summary of his conversations with defense counsel in which
defense counsel stated that he should have insisted that the
individual voir dire be conducted in public. This affidavit is
inadequate to justify disregarding the state court's finding. Cf.
United States v. Maguire, 600 F.2d 330, 332 (1st Cir. 1979)
(holding that affidavit of appellate counsel summarizing
conversations with trial counsel in which trial counsel admitted
-10-
In some circumstances, defense counsel's interest in
protecting the accused's right to a completely public trial may
give way to other concerns, such as maximizing the accused's chance
of obtaining a favorable jury composition. For this reason, the
defendant may have an "interest in protecting juror privacy in
order to encourage honest answers to the voir dire questions."
Press-Enterprise, 464 U.S. at 515 (Blackmun, J., concurring). In
particular, defense counsel may wish to shield jurors from public
questioning when the objective is to identify possible racial
biases in the venire because the prospects of a potential juror
publically admitting such bias are slim. As one court noted, "It
is no doubt a difficult thing for any person to admit to any degree
of racial bias, but to do so [publically] might well require what
the theologians used to call heroic virtue." United States v.
King, 911 F. Supp. 113, 117 (S.D.N.Y. 1995), aff'd 140 F.3d 76 (2d
Cir. 1998); see also In re S. Carolina Press Ass'n, 946 F.2d 1037,
1043 (4th Cir. 1991) ("[F]ear of publicity that might be given to
answers of venirepersons during voir dire may so inhibit or chill
truthful responses that an accused is denied the fair trial to
which he is entitled under the Fourteenth Amendment"); United
States v. Colabella, 448 F.2d 1299, 1304 (2d Cir. 1971) ("It is too
much to expect of human nature that a juror would volunteer in open
making errors is hearsay and cannot establish ineffective
assistance claim).
-11-
court, before his fellow jurors, that he would be influenced in his
verdict by a newspaper story of the trial. Not only so, but had
one or more of them said they would be so influenced, and
especially if they had then explained why, the damage to the
defendant would have been spread to the listening other jurors.")
(internal quotations and citations omitted); United States v.
Koubriti, 252 F. Supp. 2d 424, 431 (E.D. Mich. 2003) ("The
potential jurors will be more candid in their responses if they do
not have to worry about what the public's opinion of those
responses might be.") (internal quotations and citations omitted);
Kimba M. Wood, Reexamining the Access Doctrine, 69 S. Cal. L. Rev.
1105, 1119 (1996) ("When jurors are reticent, the parties are
denied the opportunity to probe meaningfully for bias. The more
intimate setting of the robing room is far more conducive for
probing bias.").
While Horton may have had a right to insist that the
entire voir dire be conducted publically, see State v. Torres, 844
A.2d 155, 158 (R.I. 2004), the strategic advantage that he received
from the individual voir dire taking place in private cannot be
ignored.6 Defense counsel's decision to agree to a closed
6
Arguably, Horton's public trial rights were not violated
because he has not demonstrated that the trial court actually
excluded any members of the public from attending the juror
questioning. See Commonwealth v. Harris, 703 A.2d 441, 446 (Pa.
1998) (rejecting public trial claim based on voir dire conducted in
anteroom because "no exclusionary order was entered and the record
does not establish that the court prohibited the public from
-12-
individual voir dire was an objectively reasonable strategy
designed to elicit forthcoming responses from the jurors about
racial bias. Accordingly, we cannot conclude that defense counsel
was ineffective in failing to object to the voir dire procedure.
Because Horton has failed to demonstrate ineffective assistance of
counsel, he has not established cause for the procedural default.
The district court therefore correctly declined to reach the merits
of the public trial claim. See Dubois, 55 F.3d at 718.
B. Confrontation Clause
Over Horton's objection, the trial court admitted
testimony from one Henry Garcia that, on the day of the murders,
Christian had stated that he needed money and that Desir had
refused to give him drugs on credit. The SJC affirmed the
admission of this testimony under the state-of-mind exception to
the hearsay rule. See Horton, 753 N.E.2d at 125. The SJC's
analysis was based exclusively on Massachusetts evidence law and
did not reference Horton's Confrontation Clause claim. Id.
Because the SJC did not resolve the constitutional issue, we
consider it de novo. See Fortini, 257 F.3d at 47.
observing the individualized voir dire"). Moreover, there is no
evidence that the trial court limited the availability of a
transcript of the individual voir dire proceeding. As the Press-
Enterprise Court recognized, in at least some circumstances, "the
constitutional values sought to be protected by holding open
proceedings may be satisfied later by making a transcript of the
closed proceeding available within a reasonable time." 464 U.S. at
512.
-13-
After this appeal was briefed, the Supreme Court decided
Crawford v. Washington, -- U.S. --, 124 S.Ct. 1354 (2004), which
changed the legal landscape for determining whether the admission
of certain hearsay statements violates the accused's right to
confront witnesses. In Crawford, the Court held that the
Confrontation Clause bars the admission of testimonial hearsay
unless the declarant is unavailable and the accused has had a prior
opportunity to cross-examine the declarant. Id. at 1374. This
holding abrogated, in part, the prior rule that the admission of
hearsay did not violate the Confrontation Clause if the declarant
was unavailable and the statement fell under a "firmly rooted
hearsay exception" or otherwise bore particularized guarantees of
trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66 (1980).
At oral argument, the parties disagreed over Crawford's
application to Horton's petition. The debate is important because
"new rules of criminal procedure" do not apply in habeas
proceedings unless they fall within either of two exceptions: (1)
the rule places a class of private conduct beyond the power of the
state to proscribe, or (2) the rule is a "watershed rule" of
criminal procedure, implicating the fundamental fairness and
accuracy of the proceeding. See Teague v. Lane, 489 U.S. 288, 310-
11 (1989); Curtis v. Duval, 124 F.3d 1, 5 (1st Cir. 1997). While
the question of the retroactive effect of Crawford, if any, is an
important one, we bypass the question here because, as explained
-14-
below, Crawford does not apply to this case. See Campiti v.
Matesanz, 333 F.3d 317, 321-22 (1st Cir. 2003) (stating that court
need not resolve a Teague issue that was susceptible of resolution
on narrower or easier grounds).
Crawford draws a distinction between testimonial and
nontestimonial hearsay and applies only to the former category of
statements. See 124 S.Ct. at 1374. As the Court explained, "Where
nontestimonial hearsay is at issue, it is wholly consistent with
the Framers' design to afford the States flexibility in their
development of hearsay law--as does Roberts, and as would an
approach that exempted such statements from Confrontation Clause
scrutiny altogether." Id. Thus, unless Christian's statements
qualify as "testimonial," Crawford is inapplicable and Roberts
continues to apply.
The Crawford Court declined to provide a comprehensive
definition of testimonial statements. Id. at 1374 & n.10. It did,
however, provide three "formulations of [the] core class of
testimonial statements." Id. at 1364. In the first, testimonial
statements consist of "ex parte in-court testimony or its
functional equivalent--that is, material such as affidavits,
custodial examinations, prior testimony that the defendant was
unable to cross-examine or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially."
Id. The second formulation described testimonial statements as
-15-
consisting of "extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions,
prior testimony, or confessions." Id. (quoting White v. Illinois,
502 U.S. 346, 365 (1992)). Finally, the third explained that
testimonial statements are those "made under circumstances which
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial." Id. While
the Court declined to settle on a single formulation, it noted
that, "[w]hatever else the term [testimonial] covers, it applies .
. . to prior testimony at a preliminary hearing, before a grand
jury, or at a former trial, and to police interrogations. These
are the modern abuses at which the Confrontation Clause was
directed." Id. at 1374.
In light of these formulations, Christian's statements do
not qualify as testimonial. They were not ex-parte in-court
testimony or its equivalent; were not contained in formalized
documents such as affidavits, depositions, or prior testimony
transcripts; and were not made as part of a confession resulting
from custodial examination. Rather, Christian's statements were
made during a private conversation with Garcia. In short,
Christian did not make the statements under circumstances in which
an objective person would "reasonably believe that the statement
would be available for use at a later trial." Id. at 1364.
Because Christian's statements were nontestimonial, their admission
-16-
is outside of Crawford's scope. See id. ("an accuser who makes a
formal statement to government officers bears testimony in a sense
that a person who makes a casual remark to an acquaintance does
not"); United States v. Reyes, 362 F.3d 536, 540 n.4 (8th Cir.
2004) (stating that Crawford does not apply to co-conspirator
statements because they are nontestimonial). Accordingly, we apply
Roberts to determine whether the admission of Christian's hearsay
statements violated Horton's Confrontation Clause rights.
As discussed above, Roberts permits the admission of a
hearsay statement of an unavailable declarant as long as the
statement "falls within a firmly rooted hearsay exception" or
otherwise bears particularized guarantees of trustworthiness. See
supra at 13-14. The relevant exception here is state-of-mind.
Under Massachusetts law, the state-of-mind exception permits the
admission of statements that demonstrate the declarant's intent to
perform some future act. See P.J. Liacos et al., Handbook of
Massachusetts Evidence, § 8.15 (7th ed. 1999)(citing cases). The
SJC determined that Christian's statements that he needed money and
that Desir would not give him drugs on credit suggested his intent
to subsequently rob Desir, and the statements were admissible to
show this intent. See Horton, 753 N.E.2d at 125.7
7
The statements were relevant because they provided an
explanation for Christian's conduct on the night of the murders
when he was acting with Horton. Because the prosecution charged
Horton with felony murder (based on the armed robbery of Desir),
evidence suggesting that Horton's compatriot had a motive for
-17-
The admission of Christian's statements comports with
Roberts. First, Christian was unavailable to testify because he
was also accused of the murders. See Commonwealth v. Christian,
722 N.E.2d 416 (Mass. 2000). Second, the statements fall within a
firmly rooted hearsay exception for statements evidencing the
declarant's state-of-mind.
A hearsay exception is firmly rooted if, "in light of
longstanding judicial and legislative experience [the exception]
rests on such a solid foundation that admission of virtually any
evidence within it comports with the substance of the
constitutional protection." Lilly v. Virginia, 527 U.S. 116, 126
(1999) (internal quotations and citations omitted). The state-of-
mind exception has been recognized by the Supreme Court and the SJC
for over a century. See Mut. Life Ins. Co. v. Hillman, 145 U.S.
285, 295-96 (1892) (admitting letter stating that declarant
intended to travel to a certain destination with another);
Commonwealth v. Trefethen, 31 N.E. 961, 964-65 (Mass. 1892)
(admitting statement of declarant's intention to commit suicide).
Indeed, "the exception exists in every jurisdiction in the country,
whether by statute, court rule, or common law tradition," Hayes v.
York, 311 F.3d 321, 325 (4th Cir. 2002), and has been codified in
the Federal Rules of Evidence, see Fed. R. Evid. 803(3). The
robbing Desir was relevant to proving the prosecution's theory of
the case.
-18-
premise for admitting hearsay statements evidencing state-of-mind
is that such statements are reliable because of their "spontaneity
and [the] resulting probable sincerity." McCormick on Evidence, §
274 (5th ed. 1999). Thus, the rationale for the state-of-mind
exception is similar to the rationale for the other hearsay
exceptions that the Supreme Court has recognized as "firmly
rooted." See Lilly, 527 U.S. at 127 (stating that firmly rooted
exceptions are those that permit the admission of declarations
"made without motive to reflect on the legal consequences of one's
statements and in situations that are exceptionally conducive to
veracity"). Considering the state-of-mind exception's lineage and
policy origins, we agree with the many other courts that have
recognized it to be a firmly rooted hearsay exception. See, e.g.,
Hayes, 311 F.3d at 326; Moore v. Reynolds, 153 F.3d 1086, 1107
(10th Cir. 1998); Terrovona v. Kincheloe, 852 F.2d 424, 427 (9th
Cir. 1988); Barber v. Scully, 731 F.2d 1073, 1075 (2d Cir. 1984);
Lenza v. Wyrick, 665 F.2d 804, 811 (8th Cir. 1981); Frazier v.
Mitchell, 188 F. Supp. 2d 798, 813-14 (N.D. Ohio 2001); United
States v. Alfonso, 66 F. Supp. 2d 261, 267 (D.P.R. 1999); Reyes v.
State, 819 A.2d 305, 313 (Del. 2003); People v. Waidla, 996 P.2d
46, 67 n.8 (Cal. 2000); Wyatt v. State, 981 P.2d 109, 115 (Alaska
1999); State v. Wood, 881 P.2d 1158, 1169 (Ariz. 1994).
To sum up, because Christian's hearsay statements were
nontestimonial, we apply Roberts to decide the Confrontation Clause
-19-
issue. The admission of these statements satisfies Roberts because
Christian was unavailable to testify, and the statements were
admitted pursuant to a firmly rooted hearsay exception.
Accordingly, Horton's Confrontation Clause rights were not
violated.
C. Ineffective Assistance of Counsel
Finally, Horton claims that the SJC misapplied federal
law in rejecting his ineffective assistance of counsel arguments
based on defense counsel's failure to call his family members as
alibi witnesses and to interview his school teachers as possible
character witnesses. In assessing these arguments, the SJC applied
its rule that "on a claim of ineffective assistance of counsel in
a case of murder in the first degree, the defendant must show there
was an error in the trial and that the error likely influenced the
jury's decision." Horton, 753 N.E.2d at 127 (citing Commonwealth
v. Wright, 584 N.E.2d 621 (Mass. 1992)). The Wright standard is at
least as generous to the defendant as the federal ineffective
assistance of counsel standard. See Mello v. DiPaulo, 295 F.3d
137, 144-45 (1st Cir. 2002). Because the SJC applied the
appropriate legal standard to Horton's claims, he can only succeed
by demonstrating that the SJC unreasonably applied this standard to
the facts of his case. See supra at 5-6.
The SJC rejected Horton's claims because it determined
that defense counsel had valid reasons for declining to call
-20-
Horton's family members and that Horton was not prejudiced by
defense counsel's failure to interview his teachers. See Horton,
753 N.E.2d at 128-29. Horton argued that his family members would
have established his alibi by testifying that he was home at 10
p.m., the time that the murders occurred. The SJC concluded,
however, that had these witnesses been called they would have been
open to damaging impeachment. Id. at 128. Therefore, it was a
reasonable decision not to call them. Id. The SJC also
determined that interviewing Horton's teachers would not have
benefitted the defense because there would have been testimony of
an unflattering change in Horton's demeanor just prior to the
murders. Id. at 128-29.
As discussed above, to succeed on his ineffective
assistance of counsel claims, Horton must show that his counsel's
performance was deficient and that the deficient performance
prejudiced the defense. See supra at 9-10; Phoenix v. Matesanz,
233 F.3d 77, 81 (citing Strickland, 466 U.S. at 687). "The habeas
court must evaluate the challenged conduct from counsel's
perspective at the time . . . making every effort to eliminate the
distorting effects of hindsight." Lema v. United States, 987 F.2d
48, 51 (1st Cir. 1993) (internal citations and quotations omitted).
It must also start with the presumption that the challenged action
was sound trial strategy. Phoenix, 233 F.3d at 82.
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The SJC reasonably determined that defense counsel made
a sound decision in declining to call Horton's family members as
alibi witnesses. As we have explained,
The decision whether to call a particular
witness is almost always strategic,
requiring a balancing of the benefits and
risks of the anticipated testimony. The
witness may not testify as anticipated or
the witness's demeanor or character may
impress the jury unfavorably and taint the
jury's perception of the accused; or the
testimony, though sympathetic, may prompt
jurors to draw inferences unfavorable to
the accused.
Lema, 987 F.2d at 54 (internal citations omitted).
Defense counsel interviewed the family members before
deciding that their testimony would not have helped Horton's case.
The proposed alibi testimony would have been open to impeachment
because it was based primarily on vague assertions from Horton's
father on the approximate time of a basketball game. More
important, the proposed testimony would have conflicted with
Horton's own version of events (that he came home at 11 p.m.),
leaving the jury with the option of rejecting the alibi witnesses's
testimony or rejecting Horton's own story. Considering the
possible danger to the defense from calling these witnesses, the
decision to bypass them reasonably could be viewed as legitimate
trial strategy. See Phoenix, 233 F.3d at 82 n.2 (stating that
trial strategy does not constitute ineffective assistance unless
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counsel's decision was "so patently unreasonable that no competent
attorney would have made it").
The SJC was also reasonable in rejecting Horton's claim
concerning defense counsel's failure to interview his teachers.
Despite being told by Horton's father that Horton's teachers could
provide positive character testimony, defense counsel failed to
speak with them. In some instances, the failure of defense counsel
to interview witnesses can establish the deficient performance
prong of the Strickland analysis. See, e.g., Riley v. Payne, 352
F.3d 1313, 1318 (9th Cir. 2003). But even assuming that defense
counsel's performance was deficient in this respect, the error
would not have prejudiced Horton's defense.
The affidavits summarizing the teachers' expected
testimony are mixed. The teachers would have presented a generally
favorable view of Horton as a courteous person and a good student.
But they also would have also testified that Horton seemed
distracted in the days leading to the murders. In particular, one
teacher would have testified that, because of Horton's changed
demeanor, she asked him if "anything was going on," and he
responded that he "was just taking care of business." Testimony of
a noticeable change in Horton's demeanor, just prior to the
murders, likely would have damaged his case more than testimony
about his general good character would have helped. Considering
the limited positive impact (if any) that the character testimony
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would have had, the SJC reasonably concluded that defense counsel's
failure to interview these witnesses likely would not have
influenced the trial outcome. See Siers v. Weber, 259 F.3d 969,
974-75 (8th Cir. 2001) (affirming denial of habeas petition based
on ineffective assistance counsel due to counsel's failure to
interview witnesses where defendant failed to establish prejudice);
United States v. Mitchell, 216 F.3d 1126, 1131 (D.C. Cir. 2000)
(similar); Clabourne v. Lewis, 64 F.3d 1373, 1382 (9th Cir. 1995)
(similar); Galowski v. Murphy, 891 F.2d 629, 638 (7th Cir. 1989)
(similar).
IV. Conclusion
For the reasons set forth above, the judgment of the
district court is affirmed.
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