Lopez v. Commonwealth of MA

United States Court of Appeals
For the First Circuit

No. 06-1663

JOSÉ LÓPEZ,

Petitioner, Appellant,

v.

COMMONWEALTH OF MASSACHUSETTS and
PAGE TRUE, Warden, Sussex State Prison,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Chief Judge,

Lynch and Lipez, Circuit Judges.

Mary A. Azzarito with whom Benjamin D. Entine and The Law
Offices of Benjamin D. Entine, J.D., Ph.D were on brief for
appellant.
Scott A. Katz, Assistant Attorney General, Criminal Bureau,
with whom Thomas F. Reilly, Attorney General, was on brief for
appellees.

March 27, 2007
 BOUDIN, Chief Judge. This is an appeal by Jose Lopez, a

state prisoner, from the denial by the federal district court of

his habeas corpus petition. The central issue concerns the delayed

disclosure to Lopez of information helpful to his defense. We

recount briefly the factual background and prior proceedings,

reserving certain details for later discussion.

Lopez met Maria Rodriguez in July 1993 and, soon

thereafter, began to live with Rodriguez and her two sons in

Haverhill, Massachusetts. Lopez and Rodriguez quarreled and she

obtained a protection order against him but she also allowed him on

occasion to stay at her apartment. On June 28, 1994, they

quarreled again after Rodriguez was paid to enter into a sham

marriage with a man who sought U.S. citizenship.

Lopez left the apartment after this quarrel but returned

early in the morning on June 29. In the afternoon of the 29th,

Rodriguez left the apartment, leaving Lopez to watch after her son

Danny, age seven, who was then playing at a neighbor's house.

Later in the afternoon, Lopez picked up Danny in his truck. Lopez

returned to the apartment in the evening without Danny and said he

did not know where Danny had gone.

On June 30, police searched an apartment that Lopez had

visited on the afternoon Danny had disappeared and recovered

certain items, including pants that Lopez had been wearing on the

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prior day which were now wet. From his truck, they recovered a

piece of rope. On the same day, Lopez was arrested.

Danny's body was discovered at a salvage yard in

Haverhill on July 8, 1994, in the trunk of a white car that was

marked to be destroyed. A 100-pound transmission had been used to

weight down Danny's body, and rope was wrapped around his neck and

tied to the hinges of the trunk. Lopez, the police learned, had

visited the yard about 10 days before, looking for a transmission,

and had been directed to the area where the body was thereafter

found.

Lopez was tried for Danny's murder and for kidnapping.

In addition to the evidence described above, the Commonwealth

showed by medical testimony that Danny had died around the time of

his disappearance and that paint smears from a screwdriver found in

Lopez' truck were consistent with paint on the car in which Danny

was found, that two sets of fibers linked Danny to Lopez' truck,

and that Lopez' pants contained white paint chips, iron and rust

stains and also red fibers that matched those on Danny's shirt.

Julia Diaz, a friend of Rodriguez' who was acquainted

with Lopez, testified that Lopez had told her that, if Rodriguez

left him, he would "hurt [Rodriguez] where it hurts the most."

According to Diaz, Lopez told her a story about a couple "having

problems," which led the man to hide the woman's children for a few

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days, returning the children only once the couple "got back

together."

The Commonwealth also presented testimony from Angel

Miranda, Lopez' cellmate during his wait for trial. Miranda

testified that Lopez had confessed to Miranda that he (Lopez) had

offered Danny "ten dollars, driven him to a junkyard, strangled him

with a brown towel until he was unconscious, and placed him inside

the trunk of a car 'marked to be crushed,' with a transmission on

top of him." Commonwealth v. Lopez, 742 N.E.2d 1067, 1070 (Mass.

2001).

Lopez did not testify but, through other witnesses,

sought to establish that he had been close to and cared about the

boys; that without Danny he (Lopez) had been seen at a number of

places and spent time with various individuals on the afternoon of

the disappearance; that he worked with cars and patronized the

junkyard in question on other occasions; and (through an expert)

that the state's forensic evidence--paint, rust and fiber--was not

conclusive.

One other line of evidence offered in Lopez' defense is

directly pertinent to this appeal. Lopez' trial had begun on July

12, 1996, and the prosecution's case in chief had ended on July 17.

On July 18, when the defense began to present its case, the

prosecutor, Kevin Mitchell, learned from Massachusetts State Police

Sergeant John Garvin that a Haverhill police officer had received

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a phone call on July 17 from one John Roche, who had information

regarding Lopez' case. Mitchell directed Garvin to create a report

summarizing the call and upon receipt gave the report to Lopez'

counsel.

Roche testified on July 23, 1996, as a defense witness,

that he lived on a road abutting the salvage yard and that he had

observed a suspicious truck on the road in the last week of June

1994. There were three people in the truck, one of whom was

"stocky, bald and Spanish." Roche also said that he had told the

Haverhill police of this fact on July 3, 1994, and had re-contacted

the police during the trial to repeat this information because they

had apparently not followed up on it.1

Ronald Parolisi, captain of the Haverhill police, then

testified that the person described by Roche "sounded like a local

person that [the police] know as Kojak," who was suspected of

dealing drugs, and that Kojak had not been a subject of the murder

investigation. In his closing, Lopez seized on Roche's and

Parolisi's testimony, suggesting that Kojak--perhaps along with

Rodriguez--had killed Danny and disposed of the body.

The jury convicted Lopez of both murder and kidnapping,

the former resulting in a mandatory life sentence. See Mass. Gen.

1
Roche said that when he initially contacted the Haverhill
police on July 3, 1994, he had spoken to a person who identified
himself as Sergeant Smith. In a post-trial motion, Lopez pointed
to evidence that a Sergeant Smith had worked as a dispatcher for
the Haverhill police around the time of Roche's call.

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Laws ch. 265, § 2 (1994). Lopez then sought a new trial based on

allegedly new evidence, specifically, that "Kojak" was a drug

dealer named Juan Garcia, that Roche had now identified a

photograph of Garcia as one of the men he had seen in the truck

near the junkyard, and that--to Lopez' own knowledge--Garcia had

supplied drugs to Rodriguez and had vowed to have revenge against

Lopez after a fight between Garcia and Lopez.

The trial judge denied the new-trial motion, saying that

he did not see "a substantial risk that, [if] the jury [were]

exposed to [the Garcia-Kojak] evidence, [it] would have reached a

different conclusion."2 See Lopez, 742 N.E.2d at 1074. The

Supreme Judicial Court affirmed, saying that there was "no

evidence" that Garcia was involved in Danny's murder, that Roche

had been vague about when he saw Garcia, and that the only link of

Garcia to the crime was Lopez' own self-serving affidavit. Id.

The decision concluded:

Merely introducing another possible
suspect, without substantial admissible
evidence that this person, and not the
defendant, may have committed the crimes, does
not warrant a new trial. Here, the
possibility of Garcia as an alternate suspect
was presented to some extent at trial, and
rejected by the jury. The little additional
and generalized information contained in the
defendant's postconviction affidavits casts no

2
The motion also relied on an affidavit of Miranda recanting
his trial testimony; but the state trial judge disbelieved the
recantation and, as no evidence on this issue is claimed to have
been wrongfully withheld, it does not raise a constitutional issue.

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 real doubt on the validity of the jury's
verdicts.

Id. at 1074-75 (footnote omitted).

Lopez then filed a petition for habeas corpus in the

federal district court including a claim that the Kojak evidence

had been wrongfully withheld by the police in violation of the

Brady doctrine, see Brady v. Maryland, 373 U.S. 83 (1963), and the

district court ordered an evidentiary hearing. Lopez v.

Massachusetts, 349 F. Supp. 2d 109, 126 (D. Mass. 2004). At the

four-day hearing, there was testimony from Roche, Lopez, Garcia,

trial prosecutor Kevin Mitchell, and Haverhill police officer Todd

Smith.3

At the close of the hearing, on March 1, 2006, the

district court judge ruled from the bench. He denied the petition,

saying inter alia

•that he largely credited Roche's
testimony, although he thought that Roche's
identification of Garcia as the man in the
truck may have resulted from a suggestive
identification process by the defense;

•that he was not persuaded by Lopez
[apparently referring to Lopez' attempt to
link Garcia to Rodriguez and Lopez' claim of a
prior quarrel between him and Garcia];

3
Roche and Lopez stood by their stories. Garcia admitted a
prior conviction for drug dealing in 1984 but said he had stopped
selling drugs thereafter, said that he had been to the junkyard a
couple of times, and--most significant--said that he knew Rodriguez
but did not know Lopez at all.

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 •that he could not conclude "that any
of the facts upon which [the state courts had]
based their legal rulings were unreasonable as
a matter of law"; and

•that Lopez had had it within his
knowledge to provide the information needed to
pursue "any additional follow-ups" [apparently
meaning that when Kojak's name first surfaced,
Lopez could have made the connection and
offered the exculpatory information about drug
dealing and the alleged quarrel].

The district court granted a certificate of

appealability, 28 U.S.C. § 2253(c) (2000); Fed. R. App. P.

22(b)(1), and Lopez appealed to this court. The question before

us, broadly framed, is whether there was a Brady violation

warranting Lopez' release, subject always to the right of the state

to retry him. Where the state court has resolved a constitutional

issue, the habeas court must defer within specified limits to

judgments by the state court as to issues of both law and fact.

See 28 U.S.C. § 2254(d)(1), (e)(1).

The Brady issue was raised in the state proceedings, but

the state courts relied not on federal precedent but on state-law

cases; nor did they phrase their grounds for rejecting a new trial

in traditional Brady terms. See Lopez, 742 N.E.2d at 1073-75.

Neither of these facts necessarily precludes deference, see Gipson

v. Jordan, 376 F.3d 1193, 1196-97 & n.1, 1200-05 (10th Cir. 2004),

cert. denied, 126 S. Ct. 729 (2005); see also Early v. Packer, 537

U.S. 3, 8 (2002), but we bypass the issue because the result is the

same even if no deference is accorded.

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 Under Brady, the prosecutor has a duty to make available

to the defense exculpatory evidence, including evidence useful for

impeachment, possessed by the prosecution team or its agents.

Giglio v. United States, 405 U.S. 150, 153-54 (1972); Brady, 373

U.S. at 87. Roche's evidence was certainly helpful to the defense-

-how helpful is a separate issue--but it was turned over and Lopez

made use of it both through Roche and in closing. So the evidence

possessed by the prosecutor was turned over--but only in mid-trial.

On this appeal, the Commonwealth argues that although

circuit precedent has applied Brady to cases of delayed disclosure,

see United States v. Lemmerer, 277 F.3d 579, 584 (1st Cir.), cert.

denied, 537 U.S. 901 (2002), no Supreme Court case does so.

Accordingly the Commonwealth argues, the state court in denying

relief cannot be accused of an unreasonable application of clearly

established Supreme Court precedent. See Carey v. Musladin, 127 S.

Ct. 649 (2006). The Commonwealth's blanket position limiting Brady

to complete non-disclosure is mistaken.

It could not, for example, comport with Brady's duty to

disclose to say that a prosecutor could choose to sit on vital

exculpatory evidence for six months and belatedly turn it over to

the defense in mid-trial too late to be effectively used.

Depending upon all kinds of circumstances, delayed release may not

be a violation or it may mitigate a prior withholding; but to treat

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Brady as mechanically limited solely to complete non-disclosure

would be foolish and not "reasonable."

However, the non-disclosure claim in this case is less

straightforward, whether couched as delay or complete non-

disclosure. The prosecutor turned over the information from the

second call to the state police about as fast as could be expected.

So to make out a Brady violation depends at the outset on showing

that the first call should have been disclosed in a more timely

fashion--specifically, that the prosecutor is responsible for what

Smith knew and that Smith should have regarded as exculpatory the

somewhat vague and unpromising initial call from Roche.

Both issues raise interesting questions not addressed by

Lopez in his brief and only indirectly adverted to by the

Commonwealth and the state courts.4 We need not pursue them

because even a wrongful withholding of evidence is not a basis for

Brady relief unless it was prejudicial, meaning (in this context)

either a likelihood of a different result or circumstances that

otherwise shake a court's confidence in the result of the trial.

4
Kyles v. Whitley, 514 U.S. 419, 438 (1995), holds that Brady
applies even if evidence is known only to police investigators, but
who counts in the latter category could be debated. See generally
United States v. Bender, 304 F.3d 161, 164 (1st Cir. 2002), cert.
denied, 537 U.S. 1167 (2003); United States v. Osorio, 929 F.2d
753, 760-62 (1st Cir. 1991). As for when information must be
regarded as exculpatory, compare Jones v. Jago, 575 F.2d 1164,
1166-67 (6th Cir.), cert. denied, 439 U.S. 883 (1978), with United
States v. Rhodes, 569 F.2d 384 (5th Cir.), cert. denied, 439 U.S.
844 (1978).

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See Strickler v. Greene, 527 U.S. 263, 281 (1999); Kyles v.

Whitley, 514 U.S. 419, 434 (1995).

The evidence against Lopez was largely circumstantial but

very strong. Indeed, it was more than circumstantial if one gives

significant weight to Lopez' supposed confession to Miranda. But

absent corroboration (e.g., by a tape recording of the confession

or a newly revealed detail), alleged confessions to cellmates are

often to be treated very skeptically, given the incentives to lie

and the limited ability to cross-examine a witness who claims no

first-hand knowledge of anything but the supposed confession.5

Miranda later recanted his testimony.

But the circumstantial evidence of Lopez' guilt--motive,

opportunity and forensic ties--was even stronger than our outline

of the main facts indicates. Just prior to Danny's disappearance,

Lopez had had a serious quarrel with Rodriguez and a clear motive

to retaliate. Further, according to Diaz, Rodriguez had virtually

outlined such a course of revenge on a child--to the extent at

least of kidnapping--after a quarrel with Rodriguez in 1993.

As for opportunity, Lopez had admittedly made contact

with Danny during the afternoon in question; he said afterwards

that he called Danny away from the neighbor to help him close a

window--itself a somewhat surprising explanation--but he denied

5
See Zappulla v. New York, 391 F.3d 462, 470 n.3 (2d Cir.
2004), cert. denied, 126 S. Ct. 472 (2005); Moore v. Olson, 368
F.3d 757, 760 (7th Cir.), cert. denied, 543 U.S. 949 (2004).

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that Danny had left with him in his truck. However, a neighbor had

seen Danny getting into the truck with Lopez on that afternoon.

The evidence showed that Lopez was familiar not only with

the junkyard but with the very location where Danny's body was

found in a car. And the forensic evidence linking Lopez with the

crime was considerable. The state court's summary on this point is

telling:

Paint smears taken from a screwdriver found in
the defendant's truck matched the paint on the
automobile in which the body was found.
Fibers consistent with those from the victim's
multicolored shorts were found in the
defendant's truck, and black fibers consistent
with the truck's carpet were found on the
victim's sandals. In addition, the
defendant's black pants contained stains of
iron and rust, white paint chips, and red
fibers consistent with those from the victim's
hooded shirt.

Lopez, 742 N.E.2d at 1070.

The defense offered some counters--Lopez' supposed

affection for the children, incomplete alibi evidence, and an

attack on the state's forensics--but the Commonwealth's case was

assuredly a strong one, even disregarding Miranda. Further,

Roche's main story, including the identification of "Kojak" by a

police witness at the trial, was made available to the jury. Let

us see just what is added by what Lopez claims to be new evidence.

The single critical fact that could have helped Lopez

appreciably is testimony that Garcia--in addition to knowing

Rodriguez--had a strong motive to kill her child; and Lopez' basis

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for this was a supposed quarrel between Lopez and Garcia. Even so,

it would take a pretty remarkable leap for the jury to think that

Garcia would revenge himself by killing an innocent child to frame

Lopez when he could more simply have killed Lopez himself.

And, there is a further difficulty. Garcia, as we now

know, would have testified at trial that he did not even know

Lopez. Lopez could not have countered him at trial with an

affidavit; Lopez himself would have had to testify to the contrary.

This in turn would have opened Lopez to cross-examination on a host

of issues that could easily have been devastating, ranging from the

lie about Danny not getting into his truck to gaps in his alibi

evidence to the multi-strand forensic evidence and wet pants.

It is far from certain that Lopez would have taken this

risk--even with the added incentive of Roche's later clear-cut (if

suspect) identification of Garcia as the man Roche had seen. And,

if Lopez had testified, it is uncertain that the jury would have

believed him (the district judge did not) and even more uncertain

that it would have thought Garcia's quarrel (if it occurred) was a

plausible motive for Garcia to kill Danny.

Of course, to acquit Lopez, it would have been enough for

him to raise a reasonable doubt; but, as against the quite strong

circumstantial case against Lopez, the very most that Lopez'

testimony could have shown about Garcia as an alternative suspect

is far from strong; and by testifying Lopez could easily have made

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his position much worse. We understand why the district court held

a hearing but our confidence in the verdict is not at all shaken.

Affirmed.

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