Healy v. Spencer

United States Court of Appeals
For the First Circuit

No. 06-1269

WAYNE BLYTH HEALY,

Petitioner, Appellee,

v.

LUIS SPENCER,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.

Maura D. McLaughlin, Assistant Attorney General, Criminal
Bureau, with whom Thomas F. Reilly, Attorney General, was on brief,
for appellant.
Wendy Sibbison for appellee.
Gary D. Buseck and Mary L. Bonauto on brief for Gay & Lesbian
Advocates & Defenders, amicus curiae.

June 27, 2006
 LYNCH, Circuit Judge. Petitioner Wayne Healy was tried

in 1981 for the murder of Richard Chalue, who had been found

stabbed to death in his home. At trial, the prosecution suggested,

in response to certain defense arguments, that Healy killed Chalue

during a homosexual encounter gone awry. Healy was convicted and

is now serving a life sentence.

More than fifteen years later, in response to a discovery

request connected to Healy's third motion for a new trial,

prosecutors for the first time turned over to Healy a pathologist's

report from the post-mortem examination of Chalue. (Healy had had

access all along to a shorter, final autopsy report). This

preliminary report said an examination of Chalue's genitals and

rectum had revealed no marks suggestive of sexual activity. Based

on this information, Healy subpoenaed the hospital where the exam

was conducted; in response, the hospital turned over a handwritten

note stating that smears from Chalue's mouth and rectum had tested

negative for sperm.

Relying on these documents, Healy in 1999 filed an

amended motion for a new trial in state court on the ground that

the prosecution had suppressed exculpatory evidence in violation of

his due process rights. See Brady v. Maryland, 373 U.S. 83 (1963).

He argued, inter alia, that the newly turned-over portion of the

report on the post-mortem exam tended to prove that the killing did

not occur in connection with a sexual encounter, and that this

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would have made a crucial difference at trial. The Massachusetts

Supreme Judicial Court (SJC) rejected his claim. See Commonwealth

v. Healy (Healy II), 783 N.E.2d 428 (Mass. 2003). Healy then

petitioned the federal court for habeas corpus.

The district court granted habeas corpus relief. The

court said the SJC had erred by failing to recognize the centrality

of the sexual encounter theory and by not explicitly factoring into

its analysis "how extremely close a case" the murder trial had

been. Healy v. Spencer (Healy III), 397 F. Supp. 2d 269, 290, 293

(D. Mass. 2005).

We reverse. The SJC considered the whole record and

reached a well-reasoned, supportable conclusion that Healy had not

demonstrated Brady prejudice. Its analysis was not "objectively

unreasonable," Lockyer v. Andrade, 538 U.S. 63, 75 (2003), and the

writ should not have issued.

I.

We describe the facts as they were found by the SJC,

supplemented with other record facts consistent with the SJC's

findings. Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006).1

1
Healy says on appeal that the Commonwealth "suggests that
this Court's review is restricted to the SJC's recitation of the
evidence." While the Commonwealth may have made this argument
before the district court, it did not do so on appeal. In any
event, our precedent makes clear that we may at least consider
other facts from the record consistent with the state court's
findings, Lynch, 438 F.3d at 39, and furthermore here the SJC
explicitly said it had considered the entire trial record.

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 Police came to Chalue's apartment in Holyoke,

Massachusetts, early on the morning of August 8, 1980, after

receiving a report that Chalue had been screaming for help. Healy

II, 783 N.E.2d at 431. The police found Chalue dead on his bed,

stabbed seventeen times in the chest, neck, and thigh. Id. Chalue

had on a pair of jeans, which were pulled halfway down his legs; he

was otherwise naked. His hands were bound with socks; he also was

gagged. Id. On top of a dresser in the bedroom, approximately

four to five feet from the body, police found a pair of underwear.

Testing of the underwear revealed the presence of semen consistent

with Chalue's blood group. Id. The pathologist who conducted

Chalue's autopsy opined, based on the location and angle of the

wounds, that the perpetrator had been kneeling on the bed at the

time the wounds were inflicted. Id.

A bloodstained knife was found on the dresser in Chalue's

bedroom. Id. On the table in Chalue's kitchen were a partially

empty bottle of rum, two bottles of cola, a glass, and an ashtray

containing cigarette butts. Commonwealth v. Healy (Healy I), 471

N.E.2d 359, 364 (Mass. 1984). Police also found a receipt for rum,

cola, and ice, stained with blood, on the third-floor landing in

Chalue's apartment building. Id.

Police contacted Healy after finding his telephone number

in Chalue's address book. Id. Healy at first said he had not seen

Chalue in months. He later changed his story, telling police that

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he had purchased the rum, coke, and ice and brought it to Chalue

that evening, but had not gone inside. Id. at 365. Healy also

lied about the timing of his movements that night: In an interview

with police on the evening of August 8, Healy stated that after

leaving Chalue, he had returned home by 10:15 p.m., and that police

could verify that with Healy's roommate, George Roy.2 When

questioned, however, Roy admitted that he and Healy had agreed to

say Healy returned home at 10:15 p.m. but that it actually might

have been closer to 12:30 a.m. Id. Healy then admitted to police

that he had not gotten home by 10:15 p.m., but instead had gone out

to two gay bars after leaving Chalue. Id.

At Healy's trial, the prosecution introduced a variety of

circumstantial evidence tying him to the crime. The Commonwealth's

fingerprint expert testified that Healy's fingerprints were on the

rum and cola bottles, and that at least one of the cigarettes in

the ashtray on Chalue's table had been smoked by someone who was

both a "nonsecretor," i.e., who did not secrete blood group

substances in his saliva, and who had Type B blood. Id. at 364.

Healy was a nonsecretor with Type B blood; the Commonwealth's

expert testified that these two characteristics appear together in

only 2% of the population. Id.

2
Healy first described Roy as his roommate. The two were
also lovers, a fact both testified to at trial.

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 The Commonwealth's expert serologist testified that the

blood on the knife contained antigens consistent with a mixture of

blood of Types A and B, and that a long-sleeved shirt found in

Healy's apartment also had a small bloodstain with both A and B

antigens. Chalue's blood was Type A. Id. Finally, Type B blood

was found on the gear shift and brake lever of Healy's car, and

police officers who questioned Healy on the evening of August 8 saw

that he had a bandage on the palm of his right hand. The doctor

who had sutured Healy's wound earlier that evening testified that

in his opinion the wound had been between four and twenty-four

hours old at the time he treated it, and that Healy's wound could

have been caused by the knife found in Chalue's bedroom. Id.

Testifying at trial, Healy said he had cut his hand on a

broken glass in his kitchen on the morning of the 8th. Id. at 365.

He admitted that, contrary to his earlier statements to police, he

had gone inside Chalue's apartment the night of the murder. Id. at

371. As to Healy's lies about what time he had come home that

night, Healy and Roy both testified that Healy had lied because he

had not wanted to disclose to the police that he was homosexual.

Healy II, 783 N.E.2d at 432. The prosecution countered that

explanation with evidence that Healy had led an openly gay

lifestyle, id., suggesting that the lie was not explained by the

reason Healy gave.

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 Later, during closing arguments, the defense argued that

the absence of blood on the clothes Healy said he had been wearing

that night3 meant he could not have been the person who stabbed

Chalue seventeen times. Healy I, 471 N.E.2d at 373. The

prosecution responded to this defense claim in its own closing by

arguing that the killer might well have been nude, thus explaining

why the killer's clothes might not have been bloody:

This man was stabbed 17 times. Blood was going
all over the place. . . . Now, you've seen the
photographs, Ladies and Gentlemen. The one I
just showed you, what kind of activity do you
think was going on in that bedroom? Ask
yourselves that. Don't leave your common
sense at home. Does it necessarily follow,
Ladies and Gentlemen, that that person who was
with Mr. Chalue had any clothes on at all?

Id.

The case went to the jury on April 3, 1981. In the

course of the deliberations, the Commonwealth made two motions for

mistrial. The first was based on a juror's requested re-

instruction on permissible inference, reasonable doubt, and

circumstantial evidence. The second came after a local newspaper

published an article on the case which was prejudicial to the

prosecution. In considering the second motion, the trial court

3
Healy apparently testified at trial that he had been wearing
jeans and a short-sleeved shirt that night, not the long-sleeved
shirt on which the police found a small blood stain. See Healy
III, 397 F. Supp. 2d at 279. Small stain or no, the thrust of the
defense argument was that Healy's clothes would have been soaked in
blood if he were the perpetrator.

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noted that the trial was "delicate" and that "a small matter

. . . could tip the balance."

The trial court ultimately denied the motions for

mistrial. The jury returned a conviction on April 8; the next day,

Healy was sentenced to life in prison.

In preparation for Healy's trial, prosecutors had turned

over to the defense a final autopsy report containing Chalue's

cause of death and a gross anatomical description. Healy II, 783

N.E.2d at 433. However, prosecutors had not turned over either the

earlier report discussing the examination of the victim's rectum

and genitalia or the handwritten notes reporting the absence of

sperm.4 On April 11, 1997, Healy brought a third new trial motion5

and requested additional discovery; this request led to production

of the earlier report and the notes. Healy subsequently filed an

amended new trial motion asserting his Brady argument. Following

an evidentiary hearing, a state Superior Court judge denied the

4
The Commonwealth argued in state court that the earlier
report in fact had been disclosed to the defense in preparation for
trial. The motion judge, however, found that the report was not
disclosed. The SJC declined to disturb that finding of fact.
Healy II, 783 N.E.2d at 433 n.6.
5
Healy brought his first two new trial motions in the
immediate aftermath of his conviction. Both were denied by the SJC
in Healy I. See 471 N.E.2d at 375 & n.17.

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motion. The SJC affirmed in Healy II. On November 8, 2005, the

district court granted habeas relief.6

II.

A. Standard of Review

Our review of a district court's grant or denial of

habeas is de novo. Norton v. Spencer, 351 F.3d 1, 4 (1st Cir.

2003). Put differently, the district court opinion, while helpful

for its reasoning, is entitled to no deference.

Under the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218-

19, our standard of review of the SJC's decision depends on whether

that court "adjudicated on the merits" Healy's Brady claim. 28

U.S.C. § 2254(d). If it did, we review only to determine whether

its conclusion "involved an unreasonable application of

. . . clearly established Federal law, as determined by the Supreme

Court of the United States." McCambridge v. Hall, 303 F.3d 24, 34

(1st Cir. 2002) (en banc) (internal quotation marks omitted)

(quoting 28 U.S.C. § 2254(d)); see also Lockyer, 538 U.S. at 75

(holding that state court's analysis must be "objectively

unreasonable" to run afoul of the "unreasonable application"

prong). If it did not, we review de novo. McCambridge, 303 F.3d

6
The district court ordered that Healy be retried or released
by March 1, 2006, and denied the Commonwealth's motion for a stay.
On February 23, 2006, this Court reversed that order and entered a
stay of release pending appeal.

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at 35. Here, as Healy concedes, the "objectively unreasonable"

standard applies. We explain why.

There are three components to a Brady claim: "The

evidence at issue must be favorable to the accused, either because

it is exculpatory, or because it is impeaching; that evidence must

have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued." Strickler v.

Greene, 527 U.S. 263, 281-82 (1999); see also Banks v. Dretke, 540

U.S. 668, 691 (2004). Prejudice exists only if there is a

"reasonable probability of a different result" had the evidence

been disclosed. Banks, 540 U.S. at 699 (internal quotation marks

omitted) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)); see

also McCambridge, 303 F.3d at 37. "Reasonable probability" denotes

a probability sufficient to "undermine confidence in the verdict."

Kyles, 514 U.S. at 435.

The SJC assumed that the first two elements of a Brady

claim -- that the evidence was favorable to the defendant and that

it had been withheld by the prosecutor -- had been made out. Healy

II, 783 N.E.2d at 435. In analyzing the third element, prejudice,

the SJC acknowledged the Brady standard. The SJC chose to use what

it has characterized as its more defendant-friendly state standard

for prejudice, applicable in certain Brady-type cases. Id. (citing

Commonwealth v. Tucceri, 589 N.E.2d 1216, 1220, 1223 n.11 (Mass.

1992) (stating that the SJC's prejudice standard is "more favorable

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to defendants than the Federal Constitutional standard")). The SJC

stated that the defendant bore the burden of establishing a

"'substantial basis' for . . . claim[ing] prejudice." Healy II,

783 N.E.2d at 435 (quoting Tucceri, 589 N.E.2d at 1223). It said

prejudice is measured by whether the reviewing court, examining the

entire record, "can be confident that, even if the prosecution had

supplied the report to the defendant[] in timely fashion, the

report or available evidence disclosed by it would not have

influenced the jury." Id. (alteration in original) (internal

quotation marks omitted) (quoting Commonwealth v. Daye, 587 N.E.2d

194, 200 (Mass. 1992)). Since the SJC used a standard more

favorable to Healy than the federal standard, we consider the Brady

issue to have been "adjudicated on the merits" within the meaning

of 28 U.S.C. § 2254(d). See McCambridge, 303 F.3d at 35 ("If there

is a federal or state case that explicitly says that the state

adheres to a standard that is more favorable to defendants than the

federal standard (and it is correct in its characterization of the

law), we will presume the federal law adjudication to be subsumed

within the state law adjudication.").

As a federal court sitting in habeas, then, we utilize

the Brady standard of prejudice and ask whether the SJC's

conclusion that there was no prejudice was "objectively

unreasonable." Lockyer, 538 U.S. at 75. For a conclusion to be

objectively unreasonable, it must carry some increment beyond

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merely being incorrect. See McCambridge, 303 F.3d at 36 ("[T]he

mere fact that there was some error or that the state decision was

incorrect is not enough."); see also Williams v. Taylor, 529 U.S.

362, 410-12 (2000). On the other hand, a state court's analysis is

not to be deemed reasonable merely because "it is possible that a

competent court could have reached the same conclusion."

McCambridge, 303 F.3d at 36. "The range for what is an

unreasonable application must fall somewhere between the two.

Within that range, if it is a close question whether the state

decision is in error, then the state decision cannot be an

unreasonable application." Id.

B. Analysis

The premise of Healy's Brady argument, both before the

SJC and on federal habeas, is that the post-mortem report and notes

were significant because they did not show signs of recent sexual

activity by the victim. Healy argues that this absence of evidence

of sexual activity, in turn, was significant for two reasons:

First, it undermined the Commonwealth's theory that the murder was

a result of a homosexual encounter gone wrong. (It is this initial

theory of prejudice on which the federal habeas claim largely

rests). Second, it would help the defense theory that the police

were biased against homosexuals, and that their investigation was

slanted and suspect. This, Healy argues, was because the

preliminary report shows that the police were considering Chalue's

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killing a homosexual-related murder and instructing the pathologist

to search for evidence of homosexual activity from the outset.

The SJC "reviewed the entire trial transcript," Healy II,

783 N.E.2d at 438, and recounted the facts at some length, id. at

430-33. It rejected Healy's Brady arguments.

As to the second Brady argument, the bias claim, the SJC

disagreed that "mere examination and testing of the victim's body

for signs of sexual activity somehow suggests police bias. From

the condition of the victim at the crime scene . . . it would be

reasonable for the police to consider and investigate the

possibility that the murder had some connection to sexual

activity." Id. at 438.

As to Healy's initial theory of prejudice -- the sexual

encounter argument -- the SJC responded, quite reasonably, that the

theory was weak on its own terms for several reasons and could not

demonstrate a likelihood of prejudice. First, the fact that the

withheld evidence excluded certain forms of sexual activity did not

itself mean that no form of sexual encounter took place. Id. at

436. Second, the SJC reasoned, the state of the record without the

suppressed materials was essentially the same as with those

materials: The prosecution at trial had introduced no evidence of

recent sexual activity by the victim, so Healy was not deprived of

the ability to argue that there was no sexual activity. Id. at

437. Further, Healy had chosen not to make this argument of no

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sexual activity at trial, when it was available, thus undermining

the assertion that it was an important argument for the defense to

make. Id. at 437-38.

The methodology used by the SJC is not to be faulted. As

its careful ten-page opinion demonstrates, the SJC reviewed the

entire record, discussed each of the defendant's arguments, and

provided reasoned rejections for each point the defendant raised.

For this reason, the state court decision cannot be attacked on the

basis that it is "devoid of record support for its conclusions or

is arbitrary." McCambridge, 303 F.3d at 37. It is a daunting task

for a habeas petitioner to show that a considered opinion by the

state's highest court is objectively unreasonable when that court

has made an evaluative judgment, based on the entire record and

applying the correct legal standard, that the petitioner has not

met the Brady standard for prejudice. Where petitioners have

succeeded in such claims post-AEDPA, it has sometimes been because

the state court made an error of law as to the standard to apply.

See Bailey v. Rae, 339 F.3d 1107, 1118 (9th Cir. 2003) (finding

state court's Brady decision unreasonable where it used a state-law

prejudice standard less favorable to petitioner than the federal

standard). No such error is present here; indeed, the SJC

concluded there was no prejudice on a standard more favorable to

Healy than that required under federal law. It also bears note

that the SJC was affirming, not reversing, the finding of the

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motion judge, who also applied the correct standard, that no new

trial was warranted.

Turning to Healy's arguments on habeas, we quickly

dispatch, as did the district court, Healy's second prejudice claim

-- that the SJC was objectively unreasonable in rejecting the

theory of police bias. The victim's largely unclothed body, found

on a bed, raised an obvious possibility of a sexual encounter which

the police were well warranted in investigating.

As to Healy's principal theory of prejudice: The SJC's

conclusion that the withheld evidence did not come close to

disproving a sexual encounter was not unreasonable. As the SJC

wrote, "[t]here is a wide range of sexual activity, up to and

including many forms of sexual assault, that leaves neither sperm

nor signs of injury to sexual organs." Healy II, 783 N.E.2d at

436. Further, the SJC was correct to note that even absent the

withheld materials, the defense could have argued that the

Commonwealth had introduced no direct evidence that a sexual

encounter had in fact occurred.7

Healy argues to us that the defense could have used the

withheld evidence to dramatic effect not just to disprove the idea

7
On habeas, Healy argues that the defense surely would have
made this argument had there been corroboration, which the withheld
documents would have provided. But even if this is so, it does not
mean the SJC's no-prejudice finding was objectively unreasonable,
particularly given its conclusion as to the limited probative force
of the withheld evidence.

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that there was a sexual encounter, rendering it less likely the

killer was nude (and thus reinforcing the importance of the lack of

blood on Healy's clothes), but also to negate the relevance of the

semen-stained underwear, to corroborate Healy's testimony that he

had no sexual relationship with Chalue, and to undercut the

prosecution's purported attempts to "establish[] a 'homosexual

murder' theory as a substitute for the missing evidence of motive."

But even accepting Healy's premise that it was essential for the

prosecution to prove a sexual encounter (which premise the SJC did

not accept, as we shall see), the SJC's conclusion that the

evidence's suppression did not meet the Brady prejudice standard

was not objectively unreasonable. The withheld evidence was of

only limited probative value regarding the likelihood of a sexual

encounter based on the record viewed as a whole, and its

suppression did not create a new argument for the defense which was

not already available at trial. The SJC's decision that there was

no prejudice was objectively reasonable, and habeas must be denied

on this basis alone.

Although no more is needed to deny habeas relief, we go

on to comment on the other arguments made.

In a second line of reasoning, not dependent on the

first, the SJC rejected the defendant's very premise that it was

key to the prosecution to show the murder had occurred during a

homosexual encounter. The SJC, having reviewed the record, found

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that the homosexual encounter theory was significant only in a

"narrow, limited" sense. Healy II, 783 N.E.2d at 436. The

prosecutor, in his closing, did not express such a theory, the SJC

noted. Id. The prosecutor mentioned it only in the Commonwealth's

rebuttal closing, in response to the defense argument that if Healy

had killed the victim, Healy would have been drenched in the

victim's blood. This demonstrated, the SJC said, that the "only

way" the sexual nature of the encounter "had any significance was

to establish the reasonable possibility that the perpetrator may

have been naked, so that the jury would not attach undue importance

to the fact that the defendant's shirt was bloodstained in only one

small area." Id. at 437.

In granting habeas, the district court found two main

faults with the SJC's analysis, which it felt made the SJC's

decision objectively unreasonable.

The Closeness of the Case

First, the federal court said, the SJC's conclusion that

confidence in the trial was not undermined could only be reached by

ignoring how extremely close the case was. The federal court

impermissibly faulted the SJC for "ignoring" (by not explicitly

mentioning) the trial judge's statement that the case was close.

Healy III, 397 F. Supp. 2d at 311. The federal court erred in its

approach.

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 The district court misread the SJC's opinion. The SJC

did not ignore the relative strengths and weaknesses of the case.

It expressly said it had considered the entire record, Healy II,

783 N.E.2d at 438, and it acknowledged that the Commonwealth's case

rested on circumstantial evidence, id. at 431. The SJC explained

with analytic clarity and precision how the suppressed material

could have affected the issues in the case. It expressly addressed

the arguments made. The SJC was not required to explicitly address

the trial judge's statement at all, much less when the statement

was made in a different context on a different issue.8

Further, we held in Bui v. DiPaolo, 170 F.3d 232 (1st

Cir. 1999), that "it is not necessary that the federal court agree

with every last detail of the state court's analysis. By like

token, state courts are not required to supply the specific reasons

that a federal court thinks are most persuasive for upholding the

judgment." Id. at 243. But this is the very approach the district

court took. The district court was not obligated, as it said it

was, to make its own determination of whether it was deprived of

confidence in the jury verdict, as though it were engaged in de

8
The trial judge's comment did not occur in a vacuum. The
judge noted that the case was circumstantial during a discussion of
the potential prejudicial effect of the newspaper article, and of
whether mistrial was warranted. The judge inquired of each juror
whether he or she had seen the article and eventually returned the
jury to deliberations. None of this undermines the reasoning of
the SJC, which itself stressed that the prosecution's case was
circumstantial.

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novo review. Its task was limited to determining, irrespective of

whether it differed with the SJC's conclusion, the separate

question of whether the petitioner met his burden to show that that

conclusion was objectively unreasonable. The SJC's conclusion was

not objectively unreasonable.

The Centrality of the Sexual Encounter Theory

The district court also concluded that the SJC had

unreasonably downplayed the role of the homosexual encounter theory

in this case. Healy III, 397 F. Supp. 2d at 292-93. But this

conclusion is a simple difference of opinion with the SJC about the

import of the evidence. The SJC did not ignore the point that the

homosexual encounter theory played a role in the trial. It

expressly acknowledged that "there was extensive reference at trial

to the defendant's homosexuality." Healy II, 783 N.E.2d at 437.

Even if one could, on de novo examination, reach a different

conclusion as to the effect of the withheld evidence, that is no

warrant for a finding that the SJC's conclusion was unreasonable.

Underlying the district court's opinion is a concern

about the possibility of homophobia playing a role which tainted

the jury deliberations and verdict. This concern is shared by, and

discussed in, the brief amicus curiae filed by the Gay & Lesbian

Advocates & Defenders. Without in the least discounting the

described issues of bias and stereotyping in the abstract, the

concern has little to do with the Brady prejudice issue presented

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in this case.9 The SJC understood that the defense as well as the

prosecution relied on evidence of Healy's homosexuality. The issue

presented by this habeas petition is not whether Healy was or was

not homosexual; he said he was. On the very narrow issue of

constitutional law before it, the SJC reasonably concluded that the

suppressed evidence neither confirmed nor excluded a sexual

encounter, and that given this limitation on the probative value of

the evidence, its exclusion from the trial did not undermine that

court's confidence in the jury verdict.

We reverse the issuance of habeas corpus and remand to

the district court for further proceedings consistent with this

opinion.

9
The issue on which habeas is sought is not that of
questioning prospective jurors for bias as to homosexual sexual
behavior, cf. Ham v. South Carolina, 409 U.S. 524, 527 (1973)
(holding that the Due Process Clause required the state court to
ask the venire brief general questions about race where the defense
was arguing that police officers were "out to get" the black
defendant because of his civil rights activities), nor should we be
understood as suggesting any such questioning was required, see Mu'
Min v. Virginia, 500 U.S. 415, 431-32 (1991) (rejecting due process
challenge to court's failure to individually question jurors about
pretrial publicity); Ristaino v. Ross, 424 U.S. 589, 598 (1976)
(finding no due process violation from court's failure to ask the
venire about racial prejudice, where the victims were white and the
defendants black but the "special factors" present in Ham were
missing).

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