United States Court of Appeals
For the First Circuit
No. 05-2419
MARK OBERSHAW,
Petitioner, Appellant,
v.
KATHLEEN LANMAN; PETER ALLEN,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Lynch, and Howard,
Circuit Judges.
Donald A. Harwood for appellant.
Daniel I. Smulow, Assistant Attorney General, Criminal Bureau,
with whom Thomas F. Reilly, Attorney General, was on brief, for
appellees.
June 30, 2006
LYNCH, Circuit Judge. Mark Obershaw ("Obershaw") was
convicted in Massachusetts state court of the first-degree murder
of his brother by extreme atrocity or cruelty. His conviction was
affirmed by the Massachusetts Supreme Judicial Court (SJC), see
Commonwealth v. Obershaw, 762 N.E.2d 276 (Mass. 2002), and his
subsequent petition for a writ of habeas corpus in the federal
district court was denied. He appeals from that denial, arguing
that his conviction is unconstitutional because the jury was not
instructed that it must be unanimous as to which particular factors
supporting the "extreme atrocity or cruelty" determination were
present. He also argues that the police obtained incriminating
statements from him in violation of his rights to remain silent and
to counsel, and that the prosecution made various remarks during
closing argument that were so improper as to amount to a violation
of due process. We reject all these arguments and affirm.
I.
We summarize the facts as found by the SJC, using the
record to supplement some points. See Lynch v. Ficco, 438 F.3d 35,
39 (1st Cir. 2006).
Obershaw lived in a townhouse in Rockland belonging to
his brother, Brian. In July of 1997, frustrated with Obershaw's
gambling problem, Brian packed up Obershaw's possessions and, when
Obershaw returned from a trip, asked Obershaw to leave. Obershaw,
762 N.E.2d at 281. Obershaw, in a rage, killed his brother Brian
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by hitting him on the head with "the Club," a steel device for
locking the steering wheel of a car. Obershaw, after attempting to
clean up the scene of his crime at the house, put Brian's body and
some bloody items in the trunk of his car. He buried Brian's body
in a landfill in Bedford, discarding his own bloody clothes and the
Club along the way. Id.
The police were called to the house on the evening of
July 25, found certain areas covered in blood, and noticed that a
portion of carpeting, the shower curtain, and other items were
missing. Id. A neighbor had seen a car like Obershaw's at the
house that morning, and the police broadcast a description of the
car. Id. at 281-82.
At roughly 3:00 a.m. on July 26, a Nahant police officer
saw Obershaw and his two dogs sleeping in his car by the side of
the road. Id. The officer told Obershaw that he could not sleep
there and suggested that he move his car to a nearby parking lot
located behind the police station and other municipal buildings.
Obershaw drove to that lot and went back to sleep. Id. The Nahant
police checked Obershaw's license plate and learned that he was
wanted for questioning in a homicide case (Brian's). They
contacted the state police and blocked the parking lot's exits.
When the state police arrived, Obershaw was asleep. Id.
The police woke Obershaw, asked him to step out of the
car, advised him of his rights under Miranda v. Arizona, 384 U.S.
-3-
436 (1966), and told him they were looking for Brian. Obershaw,
762 N.E.2d at 282. Obershaw asked what the problem was, said that
he did not know where Brian was, and told the police repeatedly
that he loved Brian. Id. He "agreed to accompany the police to
the station, and offered to 'voluntarily stay and cooperate' in the
search." Id.
The police told Obershaw he was free to leave, and they
allowed him to spend a great deal of time alone with his dogs. Id.
He voluntarily cooperated with the police, consenting to a search
of his car, trunk, and suitcase. He also agreed to have his hands
swabbed for blood and fingerprints. Id. After obtaining a written
Miranda waiver, the police asked Obershaw where he had been on the
25th. Obershaw said he had returned to Brian's house from a trip
to Atlantic City, entering at 6:00 a.m. and leaving shortly
thereafter without seeing or speaking to Brian. Id. Obershaw
"volunteered to submit to a polygraph test and cooperate fully."
Id.
When this conversation ended, Obershaw stayed at the
station, although he was told again that he was free to leave. Id.
For the next few hours, while the police inspected his car with his
consent, he played with his dogs near the station, "not accompanied
by a police escort or restrained in any way." Id. Some stains in
the trunk tested positive for blood. The police stopped their
consent search and decided to seize the car and obtain a warrant to
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search it; they so informed Obershaw. Obershaw, after spending
some time with his dogs, "indicated that he wanted to talk." Id.
He started crying and told the police, "I love my brother. It was
my fault. I'm sorry. I hit him."1 Id.
Obershaw asked for some time. After ten or fifteen
minutes, the police asked him whether he would take them to Brian's
body. Obershaw asked, "Can I talk to a lawyer first?" Id. at 284.
The police told him that he could use the telephone to call a
lawyer, but Obershaw declined, saying that he did not want to call
a lawyer, and that he wanted instead to spend some time outside
with his dogs. Id. The police allowed this, keeping Obershaw
under guard. Id. at 282. After a short while, Obershaw
"approached [an officer] outside the station and initiated a
conversation." Id. at 284. That officer again told Obershaw he
could use the telephone if he wanted a lawyer. Id. Obershaw again
declined and decided to spend another half hour with his dogs.
Obershaw then told one of the officers that "this wasn't
premeditated" and that he "didn't plan it." The police asked where
Brian's body was; Obershaw agreed to lead police to the body. Id.
at 283. He also told the police that Brian became upset with him
for being in the house. Brian started to push him out and hit him
lightly in the head, hurting him only emotionally; Obershaw said he
1
Starting then, Obershaw was not free to leave, and the
police considered him to be in custody, although they did not
handcuff him. Id.
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then took up the Club and began hitting Brian with it, ultimately
chasing Brian upstairs, where he continued to hit him. Id.
Obershaw accompanied the police to the landfill and
directed them to Brian's body. Id. After being advised again of
his Miranda rights, he went on to tell police that he had thrown
the Club along a particular road and had put some other items
behind a certain school, and he provided further details about the
homicide itself and what he did in the immediate aftermath. Id.
Obershaw took the stand at trial. He testified that
Brian "was the aggressor the whole time" -- that Brian was the one
who picked up the Club and chased him (Obershaw) upstairs, and that
after a struggle, he hit Brian just once with the Club before
hitting his own head against the wall and blacking out. Id. at
286. This testimony was contradicted by the story Obershaw had
earlier told to the police, which was admitted into evidence
through police testimony after Obershaw's motion to suppress was
denied. Id. at 280. There was also evidence, including more than
eighty photographs, that Brian received "at least ten blows to the
head," "did not die immediately from the first blow," and suffered
defensive injuries to his hands. Id. at 286. The jury convicted
Obershaw of murder committed with extreme atrocity or cruelty --
that is, first-degree murder. Id. at 280. The SJC affirmed. Id.
at 290.
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Obershaw then filed a federal petition for habeas corpus.
The district court denied the petition, but granted an amended
certificate of appealability as to the following issues:
1. Whether petitioner's rights under the
4th and 5th Amendment[s] were violated by the
admission into evidence of his statements.
2. Whether petitioner's rights under the
5th Amendment were violated . . . by the
prosecution's closing argument. . . .
[3]. Whether petitioner's 5th and 6th
Amendment rights were violated by the refusal
by the trial court to instruct the jury that
it had to be unanimous in deciding the factors
concerning extreme atrocity.
Of these, the third is the most significant issue.
II.
We review de novo the district court's denial of habeas
relief. Lynch, 438 F.3d at 44.
The Antiterrorism and Effective Death Penalty Act
(AEDPA), 28 U.S.C. § 2254, provides for deferential review as to
any federal claim that was "adjudicated on the merits in State
court proceedings": habeas relief is unavailable on such a claim
unless the state court's adjudication of the claim resulted in a
decision that "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States," or "was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." Id. § 2254(d).
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However, we review de novo any federal claim that was
"raised before the state court but was left unresolved." Lynch,
438 F.3d at 44 (internal quotation marks omitted) (quoting Horton
v. Allen, 370 F.3d 75, 80 (1st Cir. 2004)). Moreover, "a
determination of a factual issue made by a State court shall be
presumed to be correct," and the petitioner has "the burden of
rebutting the presumption of correctness by clear and convincing
evidence." 28 U.S.C. § 2254(e)(1). Finally, we cannot reach the
merits of the federal claim at all if it was procedurally defaulted
at trial, unless the default is excused. Lynch, 438 F.3d at 44.
A. Jury Instructions
Obershaw's primary challenge is to the jury instructions
as to unanimity on the first-degree murder charge. In
Massachusetts, "[m]urder committed with deliberately premeditated
malice aforethought, or with extreme atrocity or cruelty, or in the
commission or attempted commission of a crime punishable with death
or imprisonment for life, is murder in the first degree." Mass.
Gen. Laws ch. 265, § 1. Further, "[m]urder which does not appear
to be in the first degree is murder in the second degree," and
"[t]he degree of murder shall be found by the jury." Id.
In Commonwealth v. Cunneen, 449 N.E.2d 658 (Mass. 1983),
the SJC listed seven "factors which a jury can consider in deciding
whether a murder was committed with extreme atrocity or cruelty."
Id. at 665. These factors, the SJC said, "include indifference to
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or taking pleasure in the victim's suffering, consciousness and
degree of suffering of the victim, extent of physical injuries,
number of blows, manner and force with which delivered, instrument
employed, and disproportion between the means needed to cause death
and those employed." Id.
Over Obershaw's objection, the trial court refused to
instruct the jury that it must be unanimous as to which specific
Cunneen factors justified a verdict of first-degree murder by
extreme atrocity or cruelty. Obershaw, 762 N.E.2d at 289.
Obershaw's arguments under federal law, described below, were
preserved and adjudicated on the merits. See id. at 290 & n.5.
Thus, the deferential AEDPA standard of review applies.
Obershaw's first argument is that a jury determination
that one or more the Cunneen factors is present results "in an
enhanced verdict of first-degree murder, and thus, more harsh
sentencing consequences," in violation of the rule articulated in
Apprendi v. New Jersey, 530 U.S. 466 (2000), that "[o]ther than the
fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt," id. at 490. He
argues that the sentenced is "enhanced" in the sense that those
convicted of first-degree murder receive a mandatory life sentence
without the possibility of parole, whereas those convicted of
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second-degree murder receive a mandatory life sentence which
includes the possibility of parole after fifteen years.
Obershaw is correct that there is a parole-eligibility
differential. See Mass. Gen. Laws ch. 127, § 133A; id. ch. 265,
§ 2; Commonwealth v. Glass, 519 N.E.2d 1311, 1316 (Mass. 1988). He
is mistaken, however, to view this case as presenting an Apprendi
problem. When the jury finds that one or more of the Cunneen
factors was present and therefore that the murder was committed
with extreme atrocity or cruelty (and therefore that the murder was
in the first degree), there is no increase in the prescribed
statutory maximum penalty. The maximum penalty for both first- and
second-degree murder is life in prison, and indeed, a life sentence
is mandatory for both degrees of murder.2 See Mass. Gen. Laws ch.
265, § 2 (providing for mandatory penalty of "imprisonment in the
state prison for life" for both first- and second-degree murder).
Thus, no Apprendi problem is presented.
In any event, even if the Supreme Court might arguably
extend the Apprendi holding to this sort of situation, where actual
time in prison is potentially increased within a statutory maximum
through the mandatory denial of parole, it has not done so yet.
2
The Massachusetts murder statute still provides that the
death penalty is available for first-degree murder committed with
extreme atrocity or cruelty, see Mass. Gen. Laws ch. 265, § 2, but
the SJC has ruled that the death penalty violates a provision of
the state constitution, see Dist. Attorney for Suffolk Dist. v.
Watson, 411 N.E.2d 1274, 1275 (Mass. 1980).
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Cf. United States v. Booker, 543 U.S. 220, 244 (2005) (describing
the "holding in Apprendi" as requiring that "[a]ny fact . . . which
is necessary to support a sentence exceeding the maximum authorized
by the facts established by a plea of guilty or a jury verdict
. . . be admitted by the defendant or proved to a jury beyond a
reasonable doubt" (emphasis added)). Thus, the SJC's decision that
there was no Apprendi problem was not contrary to, and did not
involve an unreasonable application of, clearly established federal
law.
Obershaw's next argument is that, Apprendi aside, jury
unanimity, as a matter of federal due process, is required as to
identifying which particular Cunneen factors are present, because
those factors are "elements" of the crime of first-degree murder by
extreme atrocity or cruelty. Obershaw's argument rests on his
constitutional right to "a jury determination that [he] is guilty
of every element of the crime with which he is charged, beyond a
reasonable doubt." Apprendi, 530 U.S. at 477 (internal quotation
marks omitted) (alteration in original) (quoting United States v.
Gaudin, 515 U.S. 506, 510 (1995)). Obershaw invokes Richardson v.
United States, 526 U.S. 813 (1999), in which the Supreme Court
stated that it "has indicated that the Constitution itself limits
a State's power to define crimes in ways that would permit juries
to convict while disagreeing about means, at least where that
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definition risks serious unfairness and lacks support in history or
tradition."3 Id. at 820.
Obershaw's argument that the Cunneen factors are
"elements" relies, in part, on his view that because the Cunneen
factors consist of "broad and non-specific categories of proscribed
conduct sounding in the nature of elements," as opposed to
particular means of accomplishing a single element, they meet the
definitional requirement for "elements," as a matter of federal
law, under a test he says was established in Richardson. Obershaw
also stresses that the SJC has made it a mandatory prerequisite for
a first-degree murder conviction on the theory of extreme atrocity
or cruelty that the jury find at least one of the Cunneen factors
to be present. As Obershaw notes, the SJC has held that "the judge
should delineate the [Cunneen] factors for the jurors'
consideration and inform the jurors that they must base their
3
In Richardson, the Court noted that it "has not held that
the Constitution imposes a jury unanimity requirement" for state
criminal cases. 526 U.S. at 821; see also Schad v. Arizona, 501
U.S. 624, 630-31 (1991) (plurality opinion) (declining to hold
"that the Sixth, Eighth, and Fourteenth Amendments require a
unanimous jury in state capital cases"); Johnson v. Louisiana, 406
U.S. 356 (1972) (unanimous jury not required in state noncapital
cases). This does not necessarily mean Obershaw has no
constitutional claim, for the question of how much leeway a state
has in defining crimes still remains. Schad, 501 U.S. at 630-31.
This case deals only with that issue -- the scope of facts on which
the requisite number of jurors had to agree, not the particular
number of jurors who had to be in agreement -- and our references
to "unanimity" should be read accordingly. (Here, the Commonwealth
did require all twelve jurors to agree on the verdict.)
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verdict of guilty of murder by extreme atrocity or cruelty on
evidence of at least one of the delineated considerations."
Commonwealth v. Semedo, 665 N.E.2d 638, 646 (Mass. 1996); see also
Commonwealth v. Dahl, 724 N.E.2d 300, 309 (Mass. 2000) ("[A] jury
must find the presence of at least one of the Cunneen factors
before [it] can find that a homicide has been committed with
extreme atrocity or cruelty[,] and . . . language suggesting other
factors as determined by the jury [is] improper."); Commonwealth v.
Hunter, 695 N.E.2d 653, 658 (Mass. 1998) (judge did not err in
telling jurors that they must consider all of the Cunneen factors
and in refusing to withdraw two factors from their consideration).
The SJC has, however, made clear that as a matter of
state law, the Cunneen factors are only evidentiary considerations,
not elements. It so held in rejecting the claim that the judge
must instruct the jurors that they are "required to agree
unanimously on which of the Cunneen factors provided the basis for
their verdict." Hunter, 695 N.E.2d at 658. Explaining why jury
unanimity as to specific Cunneen factors is not required, the SJC
clarified that the factors are simply "'evidentiary considerations'
that guide the jury in determining whether a murder was committed
with extreme atrocity or cruelty." Id. That reasoning was at the
heart of the SJC's analysis in this case. Obershaw, 762 N.E.2d at
290 & n.5. Given the SJC's interpretation of state law, we are not
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free to reinterpret the status of the Cunneen factors on our own.4
Cf. Schad v. Arizona, 501 U.S. 624, 636-37 (1991) (plurality
opinion) (noting that "we simply are not at liberty to ignore [the
state courts'] determination and conclude that the alternatives
are, in fact, independent elements under state law," and that the
only issue was whether the state's choice was constitutional).
Obershaw argues that the state court's labeling of the
Cunneen factors as mere evidentiary considerations and not as
elements is not conclusive. He argues essentially that as a matter
of federal law, regardless of the state law label, if it walks like
a duck and quacks like a duck, it is a duck. He cites Ring v.
Arizona, 536 U.S. 584 (2002), and in particular, its language that
"[i]f a State makes an increase in a defendant's authorized
punishment contingent on the finding of a fact, that fact -- no
matter how the State labels it -- must be found by a jury beyond a
reasonable doubt," id. at 602.
We agree that state law labels for what is an element and
what is not are not always determinative for purposes of the
constitutional inquiry. See id. at 604-05 (noting that Apprendi,
in the context of "elevation of the maximum punishment, . . .
instructs . . . that the characterization of a fact or circumstance
4
The SJC's interpretation of state law precludes this court
from treating the question of interpretation as an open one, and
thus precludes application of the rule of lenity or of
constitutional avoidance, as urged by Obershaw.
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as an 'element' or a 'sentencing factor' is not determinative of
the question 'who decides,' judge or jury"). And one can imagine
a situation in which, under Ring, a state's definition of something
as not an element of a crime, but merely an evidentiary
consideration, would be unconstitutional if it infringed on the
right to a jury finding of a certain fact. But this is not such a
case. Further, the SJC was not unreasonable in thinking this was
not such a case.
We have several reasons for our conclusion. First, the
maximum sentence authorized under the murder statute -- with or
without a jury finding of first-degree murder by extreme atrocity
or cruelty -- was the same (life imprisonment), and therefore Ring
is inapposite. Further, in Schad, the Supreme Court rejected the
argument that the Constitution requires the jury to be instructed
that it must be unanimous as to the theory of first-degree murder
(premeditation or felony murder) before it may render a verdict of
first-degree murder. See 501 U.S. at 627. This suggests that
Massachusetts, although it may choose as a matter of state law to
require unanimity as to which theory of first-degree murder was
proven, see Commonwealth v. Berry, 648 N.E.2d 732, 742 (Mass.
1995), has significant leeway under the Constitution to choose not
to require unanimity as to specific sub-determinations supporting
the ultimate conclusion on a particular theory. Cf. Kansas v.
Marsh, No. 04–1170, slip op. at 10, -- U.S. --, 2006 U.S. LEXIS
-15-
5163, *20 (U.S. June 26, 2006) ("So long as a state system
satisfies [certain] requirements, our precedents establish that a
State enjoys a range of discretion in imposing the death penalty,
including the manner in which aggravating and mitigating
circumstances are to be weighed.").
Obershaw misreads Richardson. Richardson does not set up
a due process standard for what is an element and what is not.
Obershaw is simply wrong to say that anything which is a "broad and
non-specific categor[y] of proscribed conduct sounding in the
nature of [an] element" is an element. Richardson involved only
interpretation of a federal statute, it did not use the language
Obershaw suggests as a test, and to the extent it relied on such a
concept, it was only in attempting to ascertain congressional
intent as to what was an element. Richardson did not evaluate the
constitutionality of a state statute as interpreted by a state
court as to what was an element. Rather, Richardson works against
Obershaw's argument. It noted that the jury "need not always
decide unanimously which of several possible sets of underlying
brute facts make up a particular element, say, which of several
possible means the defendant used to commit an element of the
crime." 526 U.S. at 817. Obershaw's case fits into this latter
category.
This court has recently observed that "the law is less
clear than it might be as to when juror unanimity is required in
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the face of alternative paths to a verdict," and that "[w]ithin a
single count there may be alternative theories, alternative factual
scenarios, and alternative lines of evidentiary inference, making
generalizations about unanimity hazardous." United States v.
Pagán-Santini, -- F.3d --, No. 03-2574, 2006 U.S. App. LEXIS 14627,
at *19-20 (1st Cir. June 14, 2006); see also id. at *16-20 (holding
that defendant charged with one count of perjury based on three
separate statements had not shown plain error in court's failure to
instruct jurors that they must unanimously agree on which specific
statements were perjurious). We have also noted that "[w]hether a
particular fact is a means or an element is a 'value choice[] more
appropriately made in the first instance by a legislature than by
a court.'" United States v. Verrecchia, 196 F.3d 294, 299 (1st
Cir. 1999) (quoting Schad, 501 U.S. at 637 (plurality opinion));
see also id. at 301 (holding that "Congress did not intend the
possession of a particular firearm to be an element of [the crime
of possession of 'any firearm' by a felon]," so that district court
did not err in "fail[ing] to give an instruction requiring jury
unanimity on any particular firearm").
In sum, the SJC has determined that the Cunneen factors
are simply evidentiary considerations on the ultimate question of
extreme atrocity or cruelty, not elements, and we cannot say that
the choice not to require jury unanimity as to specific factors is
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contrary to, or involves an unreasonable application of, clearly
established federal law.
B. Statements to the Police
Obershaw moved to suppress his statements to the police,
partly on the ground he raises here: that he requested a lawyer,
and that instead of honoring that request, the police elicited
statements from him without a valid waiver of his rights.
Obershaw, 762 N.E.2d at 280. This claim was presented to the state
courts in federal constitutional terms, and adjudicated in such
terms. See id. at 281, 283-84. The deferential AEDPA standard of
review applies. We first describe the federal law.
Once a suspect invokes his right to have counsel present
during custodial interrogation, the fact that he responds to later
interrogation by the police does not, in itself, establish that he
validly waived that right. Edwards v. Arizona, 451 U.S. 477,
484-85 (1981). In fact, once a suspect "expresse[s] his desire to
deal with the police only through counsel, [he] is not subject to
further interrogation by the authorities until counsel has been
made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police." Id.
In Davis v. United States, 512 U.S. 452 (1994), the
Supreme Court held that "after a knowing and voluntary waiver of
the Miranda rights, law enforcement officers may continue
questioning until and unless the suspect clearly requests an
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attorney." Id. at 461. "[T]he suspect must unambiguously request
counsel," and "if [he] makes a reference to an attorney that is
ambiguous or equivocal in that a reasonable officer in light of the
circumstances would have understood only that [he] might be
invoking the right to counsel," police questioning need not cease.
Id. at 459. The test is an objective one: whether the suspect has
"articulate[d] his desire to have counsel present sufficiently
clearly that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney." Id.
Obershaw does not take issue with his initial statements
to the police. He was advised of his Miranda rights at the outset,
and he willingly conversed and cooperated with the police, even
signing a written Miranda waiver. Eventually, though, the police
discovered blood, and Obershaw made a brief, tearful confession.
It was shortly after that statement, when the police asked Obershaw
whether he would show them where Brian's body was, that Obershaw
asked, "Can I talk to a lawyer first?" Obershaw's argument is that
this was a clear, unambiguous request for counsel, and that the
statements he gave to the police after that request were improperly
obtained and should have been suppressed.
The state trial court determined that Obershaw "never
adequately and affirmatively invoked his right to counsel."
Obershaw, 762 N.E.2d at 283 (internal quotation marks omitted).
The SJC, citing Davis, inter alia, agreed. Id. at 283-84. The SJC
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stressed that the police responded to Obershaw's question by
telling him he could use the telephone to call a lawyer, that he
declined, that it was Obershaw who later initiated a conversation
with the police, that he was again invited to use the telephone to
call a lawyer, and that he again declined, after which he spent
half an hour with his dogs and then started speaking to the police
again. Id. at 284. The SJC reasoned that in this context,
Obershaw had not clearly and affirmatively requested an attorney.
Id.
Under AEDPA, this court is limited to determining whether
the SJC reached a decision contrary to, or involving an
unreasonable application of, clearly established federal law, or
one based on an unreasonable determination of the facts in light of
the evidence.5 The SJC's decision falls into neither category.
Obershaw inquired whether he could talk to a lawyer,
rather than expressly asserting that he in fact wanted to do so.
He has not directed us to any precedent, Supreme Court or
otherwise, holding that language like his meets the Davis standard
of unambiguously requesting counsel by expressing, with sufficient
5
Respondents argue that whether Obershaw adequately requested
an attorney is a factual determination which, under 28 U.S.C.
§ 2254(e)(1), must be presumed correct, and which Obershaw can only
rebut by clear and convincing evidence. Respondents point to Sanna
v. DiPaolo, 265 F.3d 1, 10 (1st Cir. 2001), but the challenge there
was only to the state courts' credibility-based determination of a
historical fact. The question here is not what the basic facts
are, but what their legal import is.
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clarity, a desire to have counsel present. Moreover, even if
Obershaw did initially invoke his right to counsel by asking
whether he had such a right, he subsequently became subject to
further police questioning when, despite twice being invited to
call a lawyer, he chose to initiate further conversation with the
police. See Edwards, 451 U.S. at 484-85.
C. Prosecution's Summation
Obershaw's final claim is that "the prosecutor's
summation was grossly improper, thereby rendering the resulting
conviction a denial of due process."6 He relies on Darden v.
Wainwright, 477 U.S. 168 (1986). There, the Supreme Court held
that certain comments made by the prosecution during closing
argument "undoubtedly were improper." Id. at 180. Even so, the
Court held, "it is not enough that the prosecutors' remarks were
undesirable or even universally condemned. The relevant question
is whether the prosecutors' comments 'so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.'" Id. at 181 (some internal quotation marks and citations
omitted) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)).
We begin with those remarks to which Obershaw objected at
trial.7 The SJC reviewed these objected-to comments "to determine
6
Obershaw argued to the SJC that the prosecutor's summation
"violated . . . federal due process of law."
7
Obershaw raised some objections during the prosecution's
summation, and some immediately after. With one exception noted in
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whether there were improprieties, and if so, whether they were
harmless." Obershaw, 762 N.E.2d at 287. There is a question, not
briefed by the parties, as to whether the SJC applied a standard at
least as favorable to Obershaw as the federal standard, in which
case the deferential AEDPA standard of review would apply, or not,
in which case we would review Obershaw's claim de novo.8 See Ouber
v. Guarino, 293 F.3d 19, 31-32 & n.8 (1st Cir. 2002). Obershaw
assumes that de novo review is proper here, while respondents
assume that the deferential AEDPA standard of review applies. It
is unnecessary here to resolve the issue, because we would reach
the same conclusion under either standard of review: the
prosecutor's comments do not form a basis for habeas relief.
First, the prosecutor said, "I suggest to you in no
uncertain terms" that Obershaw "lied to you" and to the police. In
a similar vein, the prosecutor later called Obershaw's claim that
he did not remember killing Brian "an insult to your intelligence
the text, the SJC treated Obershaw as having preserved each issue
for review. Obershaw, 762 N.E.2d at 287.
8
The SJC cited Chapman v. California, 386 U.S. 18 (1967), a
case involving improper prosecutorial comments which held that
"before a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless beyond
a reasonable doubt," id. at 24. The SJC also cited Commonwealth v.
Dougan, 386 N.E.2d 1 (Mass. 1979), which stated that "[t]he task of
this court is to assess on exceptions by the defendants whether the
argument as a whole is prejudicial in light of all the
circumstances, including the nature of the evidence, the
persistence or flagrancy of the remarks, and the instructions of
the judge," id. at 6. The SJC also relied on other state cases.
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. . . as jurors." This theme, that the story Obershaw told the
jury was a lie, was reiterated several more times. Obershaw argues
that these statements were nothing more than the prosecutor's
personal opinion. Not so; it was reasonable to view them as
comments based on the evidence. As the SJC noted, there was ample
evidence that Obershaw told the jury a story that not only was
different from the one he told the police, but also was
implausible. Obershaw, 762 N.E.2d at 288-89. The prosecutor was
simply urging the jury to draw a particular conclusion from the
evidence, and the comment that the apparent lie was "insult[ing]"
was, as the SJC observed, "no more than a 'rhetorical flourish,'
undoubtedly recognizable to the jury as such." Id. at 289 (quoting
Commonwealth v. Hamilton, 686 N.E.2d 975, 981 (Mass. 1997)).
Second, Obershaw claims there was no evidence showing
that Brian was struck with the "ten blows" to which the prosecutor
referred. But the medical examiner testified that there were "at
least ten blows to the head" (in addition to multiple injuries to
other parts of the body).
Third, Obershaw notes that the court precluded the
Commonwealth's forensic expert from testifying as to what caused
several gouge marks on the bathroom wall. Citing that limitation,
he challenges the prosecutor's claims that "[the expert] show[ed]
you . . . gouge marks," that "he showed you that photograph with
the gouges in it," and that the marks showed that "[you] can see
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where this defendant is pounding away on his skull."9 The expert
had in fact testified about the significance of certain aspects of
the photographs. The prosecutor did not tell the jury that the
expert had testified that it was Obershaw's blows with the Club
that caused the marks. That was a reasonable inference supported
by other evidence at trial, and the court had told the prosecutor
he was free to so argue.
Fourth, Obershaw argues that there was no evidentiary
support for the prosecutor's statements that at the time the gouge
marks were made, Brian was "alive" and "suffering," and that Brian
"was alive throughout the entire beating." But there was indeed
such evidence: Obershaw himself testified that Brian, "very badly
hurt," "covered in blood," and making "ugly breathing sounds," died
in his arms; further, the medical examiner testified that Brian
lived for at least several minutes after the first blow, that he
had defensive wounds, that he had brain injuries which required
several minutes to develop, and that he sustained bruises to his
ankles while still alive -- bruises likely incurred after the
beating, given Obershaw's testimony that, believing Brian already
dead, he dragged Brian by the ankles down the stairs before putting
him in the trunk of his car.
9
The prosecutor was arguing that Brian's head was near the
ground when he was struck.
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Fifth, Obershaw argues that the prosecutor improperly
stated his personal opinion when he asked whether Obershaw was
"indifferent to his brother's suffering" and answered, "You bet he
was. Look at what he did: backed him into a corner and beat him as
he lay there defenseless. He showed him no mercy, he was
indifferent to [Brian's] suffering." The prosecutor was not
stating his opinion, but rather urging the jury to draw a
reasonable inference from the evidence. As the SJC noted, the
"[y]ou bet" language was simply "a colloquial way of emphasizing
the defendant's indifference." Id. at 289.
Finally, Obershaw takes issue with the prosecutor's
suggestion that Brian "died in agony, . . . begging his brother to
stop." Obershaw argues that there was no evidence to support the
claim that Brian was "begging" him to stop. The SJC agreed. Id.
at 288. It reasoned, however, that the remark had to be evaluated
in the context of the entire summation, the jury charge, and all of
the trial evidence, and that the "begging" claim "was not central
to the case." Id. The SJC also noted that "the judge instructed
the jury that the closing arguments of counsel were not evidence,"
id., and Obershaw concedes as much. We agree with the SJC that in
context, the remark, though incorrect, was unlikely to have caused
unfair prejudice to Obershaw.
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There is one challenge which, although he did not raise
it at trial, Obershaw raised on appeal to the SJC and raises again
here. Obershaw points to the following passage:
Now, I'm going to be honest with you,
ladies and gentlemen, I don't really give a
crap what [Obershaw] went through. I'm here
to tell you what his brother Brian went
through, and those photographs, all 90 of
them, show you what his brother Brian went
through. And the testimony tells you what his
brother Brian went through, and how his
brother Brian died. I suggest to you [that]
he died in agony, he died begging his brother
to stop, he died with his hands over his head
until he was pounded to the point of
defenselessness, and . . . this guy just went
on swinging that Club.
Obershaw argues that this was an improper appeal to
emotion. Because it found that this objection (as distinct from
the evidentiary challenge to the "begging" claim) was not made at
trial, the SJC reviewed only "to determine whether there has been
any error that creates a substantial likelihood of a miscarriage of
justice." Id. at 289. The SJC noted that it was improper for the
prosecutor to interject his personal opinion to the effect that he
did not "really give a crap what [Obershaw] went through." Id.
Even so, the SJC reasoned, the argument did not "play[] to the
emotions and sympathies of the jury," and in the context of the
entire, lengthy closing argument, this one small portion "could not
have created a substantial likelihood of a miscarriage of justice."
Id.
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We cannot review this claim, because "[i]n all cases in
which a state prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state procedural
rule, federal habeas review of the claims is barred." Coleman v.
Thompson, 501 U.S. 722, 750 (1991). The default may be excused,
and the bar to federal habeas review removed, only in certain
circumstances: where "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." Id.
Where, as here, the state court finds forfeiture because
of the defendant's failure to object at trial, the fact that it
reviews for a "substantial likelihood of a miscarriage of justice"
does not constitute a waiver of the requirement that the defendant
timely object. Lynch, 438 F.3d at 45; Horton, 370 F.3d at 81. In
sum, there is an independent and adequate state ground for decision
here. Obershaw makes no effort to challenge that conclusion by
showing cause for the default and prejudice therefrom, or by
demonstrating that "failure to consider the claims will result in
a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
III.
The judgment of the district court denying the petition
for habeas corpus is affirmed.
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