United States Court of Appeals
For the First Circuit
Nos. 07-2660, 07-2693
JORDAN MARTELL RICE,
Petitioner, Appellant,
v.
TIMOTHY HALL, SUPERINTENDENT,
Respondent, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Boudin, John R. Gibson,* and Howard,
Circuit Judge.
Shannon Frison with whom Frison Law Firm, P.C. was on brief
for appellant.
Argie K. Shapiro with whom Martha Coakley, Attorney General,
and James J. Arguin, Assistant Attorney General, Criminal Bureau,
were on brief for appellee.
May 4, 2009
*
Of the Eighth Circuit, sitting by designation.
BOUDIN, Circuit Judge. In 1998, Jordan Martell Rice was
convicted in Massachusetts state court of the murder of his
neighbor Diane Harrigan. Harrigan was raped and then fatally
stabbed eleven times; afterward, the couch on which she was raped
and stabbed and the bed on which her body was placed were set
afire. After a four-day trial, a jury convicted Rice of arson and
first-degree murder by reason of extreme atrocity and cruelty and
he was sentenced to life without the possibility of parole for
murder, concurrent with a 19- to 20-year prison term for arson.
There was substantial evidence at the trial that Rice had
committed the rape, the murder and the arson. This included DNA
evidence that Rice was the source of sperm found in the victim.
Further, he had initially denied to police that he had ever had
sexual relations with her but admitted at trial that they had had
sexual relations on the day before her death. But, said Rice, this
had been consensual, earlier in the day and at a different
location. He denied any involvement in the crimes.
However, several different witnesses testified to
inculpatory statements by Rice on several different occasions, some
close to the time of the crime and others considerably later. The
most damning were statements on two different occasions amounting
to confessions; one was that Rice had had a girlfriend who
"disrespected him, and he had gotten rid of her, and had put plenty
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of holes in her and burned her." The jury convicted after four
days of deliberation.
Rice thereafter filed a post-conviction motion for a new
trial in state court, alleging inter alia that he had been denied
effective assistance of counsel because his lawyer had not acted to
preserve, test and present "potentially exculpatory forensic
evidence at the crime scene." The state trial court denied the
motion and the Supreme Judicial Court ("SJC") affirmed, saying
that Rice "had made no showing that any tests would have produced
something that likely would have influenced the outcome of the
case." Commonwealth v. Rice, 805 N.E.2d 26, 38 (2004).
Rice then sought habeas review in the federal district
court on a host of grounds, but was denied relief. Our review of
this is effectively review of the SJC's disposition, Teti v.
Bender, 507 F.3d 50, 56 (1st Cir. 2007), which is cabined by
statute and case law: pertinently, state court factual findings are
presumed correct and the SJC's legal determinations are to be
overturned only if unreasonable or contrary to clearly established
federal law. 28 U.S.C. § 2254(d)-(e) (2006); see also McCambridge
v. Hall, 303 F.3d 24, 36 (1st Cir. 2002).
The competency claim before us, based on a certificate of
appealability, requires some context to be understood. A large
number of items in the victim's apartment were collected by the
police and catalogued, many apparently stained with blood; the
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prosecution had a few tested which proved by DNA analysis to be
that of the victim. Nothing suggested that the attacker had been
wounded and, apparently assuming with some reason that the badly
wounded victim was the source of all of the blood, the prosecution
left it at that.
The gist of Rice's competency claim is that defense
counsel should have insisted on DNA testing of all of the blood or
hair samples. Rice requested this of his attorney but the attorney
did not do so. And even if all the DNA samples belonged to the
victim, the jury (Rice argues) could have found it exculpatory that
no DNA evidence directly tied Rice to the immediate crime scene.
So, he says, defense counsel ought to have moved to test all 65
items from the scene that had blood, hair, or fibers affixed.
To prevail, a defendant must show that the counsel's
performance was unreasonable and that the outcome would likely have
been different but for the error. Strickland v. Washington, 466
U.S. 668, 687-92 (1984). The prejudice requirement has been
variously stated, Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir.
2007); in practice, at least, perhaps more egregious errors may
more readily be deemed prejudicial. But in the present case there
is no showing of incompetence, let alone likely prejudice.
At trial Rice's counsel presented what appears to be a
decent defense. There was no eye-witness proof that he had
committed the crime; Rice gave testimony explaining the forensic
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evidence (although the original false denial remained);1 and
counsel's efforts kept jury deliberations going for four days and
resulted in an acquittal on the rape charge.
Further, counsel took advantage of the lack of any other
forensic evidence linking Rice to the crime scene. The defense's
closing argument stressed the fact that the Commonwealth had not
presented any fingerprints, hair samples or other DNA evidence
linking Rice to the murder itself; and, of course, the sperm DNA
showed only what Rice was now prepared to admit, namely, voluntary
sexual relations. But the question remains to be answered: What
was to be lost by pressing for the testing of the other items?
Defense counsel had to consider the likelihood that
further forensic testing on items found in the apartment would have
provided a link to Rice, thus supplying the missing forensic link.
Counsel's judgment in situations like this is accorded great
respect. Sleeper, 510 F.3d at 38-39. Rice's trial counsel, who
had defended many murder cases, rejected Rice's request for testing
but made numerous pre-trial motions, including a motion to suppress
the results of DNA testing of sperm found in the victim’s body and
motions to hire a microbiologist and population frequency expert.
1
Rice's position at trial was that he was having an affair
with the victim and that he and the victim had engaged in sexual
relations at approximately 4 p.m. the afternoon of her death--the
latter occurring sometime between 1:15 and 4:40 a.m. the next
morning.
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On appeal Rice argues that he had already admitted having
sexual relations with the victim, so DNA evidence linking him to
her apartment would have left him no worse off; and evidence
showing the presence of someone else could have helped his cause.
But the sexual relations, according to Rice, had occurred elsewhere
and DNA evidence showing Rice at the victim's apartment, especially
if derived from blood stains, could have made his position worse.
One can challenge witnesses who say that the defendant confessed;
forensic evidence would have made the defense hopeless.
In addition, nothing creates any likelihood that the
result of forensic testing would have been exculpatory, let alone
so exculpatory as to overturn a conviction heavily supported by
four different witnesses testifying to incriminating statements by
Rice, two of them constituting virtual confessions. Prejudice is
an independent requirement for relief, and Rice's argument as to
prejudice rests almost entirely upon "mays" and "could haves."
On appeal, Rice points us to an affidavit from a forensic
geneticist submitted for the first time in this court and so not
part of the record, In re Colonial Mortgage Bankers Corp., 186 F.3d
46, 49-50 (1st Cir. 1999), and so has been stricken. Apart from
questioning the DNA evidence against Rice (an irrelevance since
Rice admits to sexual relations with the victim), the affidavit
says in entirely general terms that testing "may" have proved the
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presence of someone aside from Rice. This, as already explained,
is not enough.
Affirmed.
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