United States Court of Appeals
For the First Circuit
No. 08-1010
MICHAEL O'LAUGHLIN,
Petitioner, Appellant,
v.
STEVEN O'BRIEN,
Superintendent, Old Colony Correctional Center,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Baldock,* and Howard,
Circuit Judges.
Kenneth I. Seiger, for appellant.
Scott A. Katz, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, was on brief for
appellee.
June 10, 2009
*
Of the Tenth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. On the morning of November 17,
2000, Annmarie Kotowski ("Mrs. Kotowski") was found in her
apartment severely beaten and covered in blood. She survived, but
could not remember the details surrounding the attack or the person
who attacked her. After an investigation, police identified
Petitioner-Appellant Michael O'Laughlin as the perpetrator.
A Massachusetts Superior Court jury subsequently
convicted O'Laughlin of the following counts: (1) burglary and
armed assault in a dwelling; (2) armed assault in a dwelling; (3)
armed assault with intent to murder; and (4) assault and battery by
means of a dangerous weapon. The Superior Court then sentenced
O'Laughlin to 35-50 years on Counts One and Two; 19-20 years on
Count 3; and 9-10 years on Count 4, ruling that the sentences were
to be served concurrently. The intermediate Massachusetts Appeals
Court reversed the judgments holding that there was insufficient
evidence to support the verdicts. Commonwealth v. O'Laughlin, 830
N.E.2d 222 (Mass. App. Ct. 2005) (hereinafter "O'Laughlin I"). The
Massachusetts Supreme Judicial Court ("SJC") reinstated the
judgment reasoning that there was sufficient evidence to support
the verdicts. Commonwealth v. O'Laughlin, 843 N.E.2d 617 (Mass.
2006) (hereinafter "O'Laughlin II").
O'Laughlin filed a petition for a writ of habeas corpus
in the United States District Court for the District of
Massachusetts on grounds that (1) the SJC's ruling was objectively
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unreasonable because there was insufficient evidence to support a
guilty verdict and (2) that the SJC violated his constitutional
right to present a defense. The district court denied O'Laughlin's
petition for habeas relief. After careful consideration, we
reverse the judgment of the district court and order the district
court to grant the petition.
I. Background
A. Factual Summary
"We must 'accept the state court findings of fact unless
[O'Laughlin] convinces us, by clear and convincing evidence, that
they are in error.'" Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir.
2006) (quoting McCambridge v. Hall, 303 F.3d 24, 26 (1st Cir. 2002)
(en banc)); see also 28 U.S.C. § 2254(e)(1). We note that the
SJC's findings of fact may be "supplemented with other facts from
the record that are consistent with the SJC's findings." Lynch,
438 F.3d at 39; see also Healy v. Spencer, 453 F.3d 21, 22 (1st
Cir. 2006). Thus, we recount the facts largely as they were
presented in the SJC's opinion.
In May 2000, Mrs. Kotowski revealed to David Kotowski
("Mr. Kotowski"), her husband of over twenty-five years, that she
was romantically involved with James Finn. In September 2000, Mrs.
Kotowski moved out of her home into the Fox Hollow condominium
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complex in a neighboring town.1 She resided alone. O'Laughlin, a
member of Fox Hollow's maintenance staff, lived two doors down from
Mrs. Kotowski. Like other members of the maintenance staff, he
possessed a master key to all the buildings on the property,
including a key to Mrs. Kotowski's apartment.2
The SJC noted that O'Laughlin "took some interest" in
Mrs. Kotowski prior to the attack. For example, when Mrs.
Kotowski's sister was visiting, O'Laughlin stood outside her
apartment and asked Mrs. Kotowski if there were "any more good
looking women in there[.]" Also, he referred to Mrs. Kotowski five
or six times in conversations with acquaintances, citing her
"beautiful antique furniture" in her apartment as evidence of her
wealth and remarking that he was attracted to her "body type."3
The day before the attack, O'Laughlin cashed a $457.16
paycheck and made $200 child support payment to his ex-wife. Also,
the SJC stated that O'Laughlin was agitated when he was unable to
1
The SJC indicated a "difficult" marital situation: "Both the
victim and her husband characterized their relationship as friendly
but strained. (Other witnesses described the husband's attitude as
alternating between loving and angry.)" Approximately a week
before the attack, she conversed for the first time with her
husband about the possibility of getting a divorce. Mrs. Kotowski
testified that Mr. Kotowski was "crushed" by the move.
2
O'Laughlin had been inside Mrs. Kotowski's apartment at least
once previously in September to fix a window, among other tasks.
3
In addition, the SJC states that just days before the attack,
one acquaintance testified that O'Laughlin had "really scared" Mrs.
Kotowski by inquiring "about the window in her apartment."
However, once Mrs. Kotowski realized he was on the maintenance
staff, she simply walked away.
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sell his trailer to his neighbor because the neighbor could not
come up with $500. The neighbor paid him the next day.
On the night of the attack, the SJC described O'Laughlin
as "[n]ervous, jittery, [and] paranoid . . . ." This was "typical
behavior when he smoked crack cocaine," which O'Laughlin had done
earlier that evening at the home of a friend, Mark Puleri.
As the night wore on, O'Laughlin was "depleted of drugs
and most of his cash." At 9:00 or 9:30 p.m. that evening,
O'Laughlin, now at home alone, telephoned another friend, Grover
Finkle, asking him for a ride to purchase drugs. Finkle, who was
at Richard O'Leary's house, had previously smoked crack cocaine
with O'Laughlin and knew a drug dealer. Finkle and O'Leary, a
taxicab driver, arrived at O'Laughlin's apartment an hour later.
However, they soon left without giving O'Laughlin a ride because
O'Laughlin was unable to secure money for cab fare.4
In the early morning hours of November 17, between 12:10
and 1:43 a.m., fourteen telephone calls were placed to or from
O'Laughlin's apartment. The majority of these calls were placed to
known drug dealers.
Shortly before 2:00 a.m. George Whittemore, a neighbor
living directly above Mrs. Kotowski, awakened to a woman screaming
directly below and the sound of "wood hitting wood." According to
4
O'Leary refused to drive unless O'Laughlin provided him with an
advance payment.
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Whittemore, a carpenter by profession, these sounds lasted for
about thirty seconds.
Whittemore dialed 911 at 1:55 a.m. He stayed awake until
the police arrived and flashed his apartment lights to indicate his
apartment to the police. Between the time he called 911 and when
the police arrived, Whittemore did not hear any vehicles arrive or
depart from the area. The police later conducted a reenactment of
the 911 call. Based on this reenactment, they concluded that a
person standing in Mrs. Kotowski's bedroom could have heard
Whittemore's footsteps as he walked to the telephone as well as
Whittemore's voice, but would have been unable to make out what was
being said.
Officers William Tierney and Phillip Skowron arrived six
or seven minutes after Whittemore's 911 call. They were unable to
find apartment number 202, the apartment reported in the dispatch,
because the apartment numbers at the complex had been recently
renumbered. They did not note anything unusual, but observed
O'Laughlin walking from the building on a walkway leading from
apartment number 19. O'Laughlin was wearing only boxer shorts and
Officer Tierney testified that O'Laughlin appeared "impervious" to
the near-freezing temperature.
O'Laughlin questioned the officers regarding what had
happened and the officers answered that they were responding to a
report of a woman screaming. When they asked him if he had heard
any screaming, O'Laughlin replied that he had been awakened by
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screaming, but believed it to be a raccoon trapped in a dumpster.5
O'Laughlin explained that he had placed a stick in the dumpster so
that it could escape. Officer Tierney then looked inside the
dumpster and saw a stick, but no animal. The SJC noted that during
his conversation with the officers, O'Laughlin seemed "uneasy and
distant," not making eye contact with them. The police further
searched the area, but left after finding nothing suspicious.
Whittemore testified that throughout the night he heard
a woman moaning and crying directly below him.6 He also testified
that later in the morning, he heard the sound of glass breaking,
banging, and a man outside Mrs. Kotowski's apartment calling her
name. The man subsequently yelled "Oh, my God."
The man Whittemore was referring to was Mrs. Kotowski's
boyfriend, Finn, who had arrived at 5:45 a.m. at Mrs. Kotowski's
apartment. On weekdays, Finn routinely joined Mrs. Kotowski for a
morning coffee prior to starting his workday. On this particular
morning, when Finn knocked on the door, he only heard her say, "Who
is it?" in a strange voice. After failing to reach her from a
nearby public telephone, Finn testified that he forced open a
locked sliding glass rear door. Although the living room appeared
to be in order, he found Mrs. Kotowski lying on the floor next to
5
O'Laughlin's supervisor testified that the complex had been
having problems with raccoons getting caught in the dumpster.
6
Although he heard these sounds, Whittemore did not contact the
police again that night.
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the bed. He testified that "there was just blood everywhere."
Finn dialed 911 just before 6:30 a.m. Mrs. Kotowski, who had
severe wounds on her head, was taken to Berkshire Medical Center.
The police ruled out Finn as a suspect because of his alibi (which
they confirmed), his reaction of shock upon discovering Mrs.
Kotowski, and his cooperation with the police.
Officers who arrived after Finn's 911 call observed blood
in the victim's bedroom on the bed, the pillow, the floors, the
walls, and on the door jambs of the bathroom and bedroom. The SJC
noted that the crime scene contained "'quite a bit of blood' that
appeared to be 'splatters' on the comforter." Further, the bed
rail was dented, with wood splinters on the ground beneath the
dent. Officer Skowron testified that everything else was intact as
the apartment was neat and nothing was displaced. Mrs. Kotowski's
purse was on the floor, however. Officer Skowron also testified
that there were no signs that the front door or the rear sliding
door had been forced open (which contradicted a report by an
earlier officer on the scene stating that the rear door was
broken); that the drawers were closed; and that the light and
figurines on the dresser were upright. Mrs. Kotowski testified
that no items of value were missing from the apartment. These
items, which were in plain view on top of the dresser, included
diamonds, pearls, and an expensive watch in the bedroom. Also,
Mrs. Kotowski's purse contained her credit cards, about $28 in
cash, and a checkbook. There was $522 in cash in a dresser drawer.
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Constance Cappel, a neighbor who lived in the apartment
between O'Laughlin and Mrs. Kotowski, testified that she heard
voices outside Mrs. Kotowski's apartment at about 6:45 a.m. Cappel
went outside and saw Mrs. Kotowski being loaded into an ambulance.
She knocked on O'Laughlin's door and told him that she thought
someone had been murdered. O'Laughlin, who answered the door in
his boxer shorts and looked like he had just awoken, responded
"What do you want me to do about it?"
At 8:45 a.m. O'Laughlin came out of his apartment dressed
for work, approached one of his co-workers and Cappel, and inquired
about what was happening. After his co-worker explained the
situation, O'Laughlin described his encounter with the police the
previous night and how he had been awakened by the police cruisers.
O'Laughlin also informed his co-worker that he told the police that
he thought raccoons had been in the dumpster making a "kind of
squealing sound."
At about 9:40 a.m., Officers Tierney and Todd Briggs
talked with O'Laughlin outside the apartment building and Officer
Tierney noticed a "scratch or a dig mark in [O'Laughlin's] left
cheek, [a] small cut on his chin and a round, circular
bruise . . . just below his left ear." Officer Tierney was unsure
about how fresh these marks were.
The SJC remarked that although O'Laughlin was initially
"reluctant," he agreed to give a statement at the police station
when informed that Officer Tierney would conduct the interview.
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O'Laughlin arrived at the station at 10:40 a.m., but was told by
Chief Ronald Glidden to wait for Officer Tierney, who had yet to
arrive. Officer Tierney arrived twenty minutes later and told
O'Laughlin that he would be "right with him." However, when he
returned five minutes later, O'Laughlin had left.7
O'Laughlin returned to the police station twenty minutes
later and was interviewed by Chief Glidden for about ten minutes.
Chief Glidden testified that O'Laughlin "seemed agitated" during
the interview. In his statement to Chief Glidden, O'Laughlin
stated that he had been "drinking before he went to bed and he just
didn't think he was awake until he heard the cruisers at
approximately two o'clock." He thought he may have heard foxes or
raccoons before that, but was uncertain. O'Laughlin said that he
had "seen [the victim] around,"; that he and a friend had joked
about her boyfriend; and that he had been in that apartment to
repair a window. After the interview concluded, he went home.
State Troopers David Buell and Brian Berkel arrived at
the complex around noon. Trooper Buell spoke to O'Laughlin, who
stated that he had been out with his friend, Puleri, the previous
night, returned at 10:30 p.m., went to sleep around 11:30 p.m., and
was awakened by screaming, which he thought was a fox fighting with
7
O'Laughlin's co-worker testified that O'Laughlin went back to
the apartment complex and told him the person O'Laughlin was
supposed to meet was not there. After discussing the matter
further, O'Laughlin decided to go back to the police station
accompanied by his co-worker.
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a raccoon. O'Laughlin said that a short time later the police
arrived and he went out to speak with them. After the officers
left, he slept until 7:30 a.m., when he was awakened by his
neighbor, who had informed him that there had been a murder.
Trooper Buell asked O'Laughlin for consent to search his
apartment in order to eliminate him as a suspect and because his
apartment was in close proximity to Mrs. Kotowski's apartment.
O'Laughlin consented, and allowed Trooper Berkel to take
photographs and two police chemists to search for blood stains.
Trooper Berkel photographed a red stain on a closet door near the
kitchen area. A chemist who saw the stain asked O'Laughlin if his
consent included taking swabbings. O'Laughlin responded that it
did not. Soon thereafter, O'Laughlin asked the officers to leave
his apartment.
Outside the apartment, the police decided to apply for a
search warrant. They returned to O'Laughlin's apartment and
informed him of their intent to secure the apartment and obtain a
warrant. O'Laughlin replied that they did not need to pursue a
warrant because he would allow them back into the apartment. He
also told the officers that he had wiped the red stain off the
closet door with his finger, and thought it was his own blood, but
was not certain. O'Laughlin told the police that he was concerned
about a search because he was afraid police would find his drug
paraphernalia and because he possessed money that he did not want
taken. Trooper Buell asked O'Laughlin to give him the drug
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paraphernalia, telling him that he would not be charged with drug
possession.
When the chemists returned to the apartment, the red
stain on the closet door was gone. However, the area, where the
stain had been, tested positive for the presumptive presence of
blood. The chemists collected a sample by swabbing.8
A state trooper searched the area surrounding the
apartment complex with a dog trained to search by scent. The dog
found an aluminum bat about twenty-five yards away from a
building's dumpster in the woods. It appeared to be covered in
leaves and debris, but was otherwise clean. O'Laughlin's name was
inscribed on the bat.
On November 20, O'Laughlin called a friend and informed
him that he was a suspect in the assault. The SJC noted that
O'Laughlin was "upset" while he told his friend that he was "very
happy that [Mrs. Kotowski] had survived . . . [s]o that she could
identify her assailant," but with his bad luck the assailant could
have been wearing a "Nixon mask" and entered with a baseball bat.
8
Chemists also collected swabs from two small, red-brown stains
in the apartment that tested positive for the presumptive presence
of blood, and cuttings of what appeared to be blood from
O'Laughlin's bed comforter. O'Laughlin handed over to the police
the clothes he said he wore the previous night and permitted the
chemist to examine his boots.
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Later that day O'Laughlin was arrested. While in
custody, O'Laughlin told an inmate that although he owned the bat,
he last saw it when he moved into his apartment.9
The police recovered fourteen fingerprints and one palm
print from Mrs. Kotowski's apartment, none of which matched those
of O'Laughlin.10 In addition, footprint impressions taken at the
apartment did not match O'Laughlin's boots. State Police
Lieutenant Brian O'Hara, trained in fingerprint analysis and
bloodstain patterns, opined that a blood stain on Mrs. Kotowski's
pillow was caused by the transfer of blood from a person's right
hand, but the handprint was unidentifiable. He testified that the
hand had to have had a significant amount of blood on it, not all
of which would have been transferred.
A state police chemist examined the aluminum bat found in
the woods. Three small reddish brown stains on the bat tested
positive for the presumptive presence of blood, only one of which
tested positive for human blood. The three stains were swabbed and
sent to the DNA unit for further testing. There was contamination
in the DNA lab, and thus the tests consumed all the testable
material without yielding results. An additional cutting from tape
9
At booking, O'Laughlin remarked during his photograph that the
mark on his face was a pimple. Trooper Michael Hill thought it was
a blemish or an injury.
10
Twelve of these prints were identifiable and excluded
O'Laughlin; two were unidentifiable; and one was identifiable, but
police could not match it to any known prints.
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on the bat's handle, an area where the presumptive presence of
blood could still be detected, was submitted to the laboratory. A
state police DNA analyst concluded that while Mrs. Kotowski could
not be excluded as a contributor, one in two of any randomly
selected individuals could have been the contributor.11
A surgeon who performed reconstructive surgeries on Mrs.
Kotowski after the attack testified that she had sustained between
fifteen to twenty blows that broke nearly every bone in her face
and skull. The only exception was her jaw. She also had defensive
wounds on her hands caused by five to ten blows. The surgeon gave
an opinion that Mrs. Kotowski's injuries were caused by a long,
sturdy, hard, round object, consistent with an aluminum bat that
was recovered in the woods on the day of the attack.
B. Procedural History
In December 2000, A Berkshire County grand jury charged
O'Laughlin with four offenses: (1) burglary and armed assault in a
dwelling, see Mass. Gen. Laws ch. 266, § 14; (2) armed assault in
a dwelling, see Mass. Gen. Laws ch. 265, § 18A; (3) armed assault
with intent to murder, see Mass. Gen. Laws ch. 265, § 18(b); and
11
Because of the contamination, only the following samples were
deemed adequate for further testing: blood on Mrs. Kotowski's
bathroom floor; a stain on the wall behind O'Laughlin's dresser;
and two cuttings from O'Laughlin's comforter. Of these samples, it
was concluded that all of the blood found in O'Laughlin's apartment
belonged to him, and O'Laughlin was excluded as a possible
contributor to the sample of blood taken from Mrs. Kotowski's
bathroom.
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(4) assault and battery by means of a dangerous weapon, see Mass.
Gen. Laws ch. 265, § 15A(b).
Following a nine-day jury trial in May 2002, O'Laughlin
was convicted of all four charges. O'Laughlin appealed.
1. The Massachusetts Appeals Court Opinion
On appeal, the Massachusetts Appeals Court concluded that
there was insufficient evidence to support the jury's verdicts.
The Appeals Court stated that while the government's evidence
demonstrated that O'Laughlin had a motive of robbery, an
opportunity to commit the crime, a means to commit the crime, and
a consciousness of guilt, the evidence was not enough to establish
guilt. The Appeals Court concluded that "[n]othing in the record
sufficiently links the defendant to the crime to permit the
conclusion beyond a reasonable doubt that he was the perpetrator"
and that "[p]iling inference upon inference does not amount to
proof beyond a reasonable doubt." O'Laughlin I, 830 N.E.2d at 231-
32. In reaching its conclusion, the Appeals Court noted that the
bat was only "consistent" with the weapon used in the attack; that
O'Laughlin's lies to the police concerning his whereabouts and his
removal of the stain from his closet door, "while certainly
permissible to show a guilty conscience, cannot fill the gap in the
proof of identity"; that O'Laughlin did not show physical strain in
his appearance and demeanor when confronted by the police just
about twelve minutes after the attack, which would have been
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consistent with someone who had just committed such a "brutal"
attack; and that the third-party culprit evidence in this case
detracted from the government's case. Id. at 232-34. Thus, the
Appeals Court reversed O'Laughlin's convictions and directed that
judgments be entered in his favor.
2. The SJC Opinion
The Commonwealth then sought and received further
appellate review from the SJC. The SJC concluded that the evidence
against O'Laughlin had been sufficient and affirmed his
convictions, stating that circumstantial evidence of motive,
opportunity, means, and consciousness of guilt "permissibly
convinced the jury of the defendant's guilt." O'Laughlin II, 843
N.E.2d at 627.
The SJC stated that the jury could permissibly find that
O'Laughlin's motive to break into Mrs. Kotowski's apartment was
robbery. Id. It pointed to the fact that O'Laughlin had taken
drugs twice previously on the night of November 16, had "run out"
of drugs and money, and was calling around as late as 1:43 a.m. to
purchase drugs, which the SJC noted was "only twelve minutes before
the victims' upstairs neighbor telephoned the police department to
report screams and banging sounds from downstairs." Id.
The SJC further noted that O'Laughlin had previously
entered the victim's apartment and "had reason to believe that she
was wealthy and might have cash or valuables." Id. The SJC
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commented that O'Laughlin "needed money immediately and the victim
was a nearby and likely source." Id. Accounting for the fact that
nothing was taken from the apartment, the SJC pointed to a
reenactment during trial demonstrating that the neighbor could be
heard in the apartment below when he called the police. The SJC
concluded that "[i]t is a reasonable inference that the defendant
was frightened off before he could steal anything when he heard the
neighbor speaking." Id. at 627 n.11.
The SJC also concluded that O'Laughlin had the
opportunity to commit the crime because he resided only two
apartment doors away from Mrs. Kotowski and that he had a master
key which gave him access to her apartment. Id. at 627. In
addition, the SJC pointed to Whittemore's testimony that he did not
hear any cars going to or from the apartment complex in the
interval between when he first heard the screaming and when the
police arrived. Id.
The SJC also reasoned that O'Laughlin had the means to
commit the crime by stating that the aluminum bat was found a short
distance from Mrs. Kotowski's apartment complex. Id. The SJC
stated that "[t]he jury would certainly be warranted in concluding
that the bat was the defendant's." Id. The SJC explained that
"[h]is surname, not a common one, was visible on the bat handle and
he mentioned to someone in jail that he was the owner of the bat
the police had found." Id. The SJC further noted, however, that
although the bat was covered by some leaves and debris, it was
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otherwise "clean" when discovered. Id. It also acknowledged
O'Laughlin's statement that he had not seen the bat since the day
he had moved into his apartment. Id. at 627 n.12.
Most notably, the SJC indicated the significant evidence
pointing to O'Laughlin's consciousness of guilt. Id. at 627.
First, the SJC referenced O'Laughlin's demeanor when the police
first arrived on the scene and discovered O'Laughlin outside in his
"boxer shorts in near freezing temperature." Id. The SJC noted
that when he talked with the police, he was "uneasy and distant"
and did not make eye contact with the police officers. Id. Also,
the SJC remarked that the differing versions O'Laughlin gave to
police as to the reason he woke up was indicative of his
untruthfulness.12 Id. at 627-28. The SJC further noted that
O'Laughlin reluctantly participated in an interview with the police
and seemed "agitated" when he spoke with them. Id. at 628.
Moreover, the SJC pointed to O'Laughlin's reaction to the
police's request when they asked for a swabbing of the red stain in
the closet door of his apartment. Id. Although O'Laughlin later
allowed the police to return, the stain was gone and O'Laughlin
12
The SJC stated that O'Laughlin lied to the police when he told
them that he was awakened by the screaming, but his telephone
records show that he was making phone calls until twenty minutes
before the police arrived on the scene. He later told the police
that the police cruisers woke him up. Also, he told the police in
an another interview that he went to bed at 11:30 p.m., awoke to
screaming that he believed were animals fighting, went back to
sleep and awoke to his neighbor's knock on his door who was there
to inform O'Laughlin that Mrs. Kotowski was severely beaten. Id.
at 627-28.
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admitted to having removed it with his finger, saying that he
believed that it was his own blood. The SJC concluded that "[t]his
evidence reflected not merely a general consciousness of guilt, but
indicated that the defendant feared that the blood stain could be
that of the victim, a fear he would have only if he were in fact
the perpetrator." Id.
Finally, the SJC pointed to the fact that O'Laughlin had
"a 'scratch or dig mark' on his cheek, a small cut on his chin and
a bruise on his neck." Id. While acknowledging that the police
officer could not discern whether the marks were "fresh," the SJC
concluded that "it could be inferred that the injuries were
sustained during a physical encounter with the victim." Id.
In sum, the SJC stated that the evidence taken together
"was sufficient to permit the jury to determine beyond a reasonable
doubt that the defendant was the perpetrator of the vicious attack
on the victim." Id.
In reversing the lower appellate court decision, the SJC
distinguished its case law in Commonwealth v. Mazza, 504 N.E.2d 630
(Mass. 1987), stating that in the instant case the prosecution
"presented more evidence linking [O'Laughlin] to the assault."
O'Laughlin II, 843 N.E.2d at 629. Furthermore, the instant case
contained evidence of means as represented by the aluminum bat,
"significantly stronger evidence of consciousness of guilt,"
bruises on O'Laughlin's face, and the fact that O'Laughlin was
wearing only boxers when the police found him, which "would be
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consistent with his having disposed of bloody outer garments." Id.
With respect to O'Laughlin's attire, the SJC added that "[t]he jury
could find that, had the defendant gone outside to check for
animals in the dumpster (as he claimed), it was implausible that he
would have done so without putting on at least minimal clothing,
not only for purposes of protection against the cold but also for
purposes of decency." Id.
The SJC disagreed with the weight placed by the Appeals
Court on the fact that O'Laughlin "did not manifest any signs of
recent physical exertion (sweat, shortness of breath, wet hair or
disarray)" twelve minutes after the attack. Id. at 629 n.13. The
SJC stated that this did not detract from the government's case
because twelve minutes after the attack there would be no reason
for O'Laughlin to show signs of this physical exertion. Id.
Also, the SJC disagreed with the Appeals Court that the
third-party culprit evidence presented in this case detracted from
the government's argument or affected the sufficiency of the
evidence because it was not "so overwhelming that no rational jury
could conclude that the defendant was guilty." Id. at 630. The
SJC stated that the third-party culprit evidence "simply tended to
contradict the Commonwealth's evidence; it did not show it to be
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incredible or conclusively incorrect."13 Id. (internal quotation
marks omitted).
3. O'Laughlin's Habeas Petition
In his habeas petition before the district court,
O'Laughlin alleged that (1) the evidence at trial was insufficient
13
The SJC noted O'Laughlin's third-party culprit evidence in a
footnote:
The defense sought to portray the victim's husband, from
whom she had recently separated, as the third-party
culprit. The husband was aware of the wife's new address
and that she was involved with another man. The victim
described the husband as being "upset" but not angry
about this relationship. Others said the husband
alternated between being "nice" and verbally abusive. The
husband testified that he was at home at the time of the
assault and that he received two telephone calls just
before 6 a.m. Each time his "caller ID" indicated the
source of the call as the victim's apartment, but no one
was on the line. He dialed the number, and a man
answered. One witness thought he saw the husband's car
in his workplace parking lot at approximately 6 a.m. on
the morning of the attack, but a neighbor saw the
husband's car parked at home at 6:20 a.m. The husband
was generally cooperative with the police, but did not
permit the police access to "personal" letters to his
wife. Tests indicated the presumptive presence of blood
on one of the husband's forearms on the day of the
attack. On the evening of November 17, the police
observed garbage bags on the floor of the husband's
garage and dark clothing in a clothes dryer. Two wet
towels strongly smelling of bleach were found in a
plastic bag in the trunk of the husband's car. One of
the towels was the same as towels found in the victim's
linen closet. The husband explained that the towels
smelled because he did not know how to do laundry and had
used too much bleach on them. He said he brought them on
a hunting trip the previous weekend and had forgotten
them in the trunk. Finally, the husband kept wooden
baseball bats and other athletic equipment in his garage.
Id. at 630 n.14.
-21-
to prove that he was a perpetrator of the offenses for which he was
convicted; and (2) the trial court violated his right to present a
defense by excluding a handwritten note that, according to
O'Laughlin, supported his third-party culprit defense. After
briefing by the parties and a non-evidentiary hearing, the district
court denied O'Laughlin's petition reasoning that "like the courts
that have looked at this cold record before me, this is a close
question. But the petition must be under federal law denied."
O'Laughlin then filed a timely notice of appeal and
requested a Certificate of Appealability ("COA") as to his
sufficiency and right-to-present a defense claims. The district
court granted a COA with respect to both issues.
II. Discussion
A. Standard of Review
We review de novo the district court's decision to grant
or deny a habeas petition under 28 U.S.C. § 2254. Healy, 453 F.3d
at 25. Under the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1219
(1996), a federal court shall not grant a petition for habeas
relief "with respect to any claim that was adjudicated on the
merits in State court proceedings" unless the state court decision:
1) "was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States" or 2) "was based on an unreasonable
-22-
determination of the facts in light of the evidence presented in
the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). "A state
court's findings on factual issues 'shall be presumed to be
correct' and the petitioner bears the burden of disproving factual
findings by 'clear and convincing evidence.'" McCambridge, 303
F.3d at 34-35 (quoting 28 U.S.C. § 2254(e)(1)).
Sufficiency claims are generally14 evaluated under
§ 2254(d)(1) and we look to "whether the state court decision
constitutes an unreasonable application of clearly established
Supreme Court case law." Hurtado v. Tucker, 245 F.3d 7, 15 (1st
Cir. 2001) (quoting Williams v. Matesanz, 230 F.3d 421, 426 (1st
Cir. 2000)).
"[T]he 'unreasonable application of' prong of
§ 2254(d)(1) 'reduces to a question of whether the state court's
derivation of a case-specific rule from the [Supreme] Court's
generally relevant jurisprudence appears objectively reasonable.'"
Id. at 16 (quoting Matesanz, 230 F.3d at 425).
14
Although an analysis under § 2254(d)(1) is appropriate in the
present case, we say "generally" because we need not conclude that
we must "evaluate a state court's resolution of a Jackson
sufficiency-of-the-evidence claim in all cases under § 2254(d)(1)
rather than § 2254(d)(2)." Sarausad v. Porter, 479 F.3d 671, 678
(9th Cir. 2007) (emphasis added), rev'd on other grounds sub nom.
Waddington v. Sarausad, 129 S. Ct. 823 (2009); cf. id. at 695
(Reinhardt, J., concurring in part and dissenting in part) ("I see
nothing in law or logic preventing us from evaluating Jackson
claims under § 2254(d)(2), which authorizes us to grant habeas
relief when the state court decision we are reviewing is 'based on
an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.'" (quoting § 2254(d)(2)).
-23-
"Habeas review involves the layering of two standards.
The habeas question of whether the state court decision is
objectively unreasonable is layered on top of the underlying
standard governing the constitutional right asserted." Id.
The constitutional right asserted in sufficiency of the
evidence claims is set forth by the Supreme Court's decision in
Jackson v. Virginia, 443 U.S. 307 (1979). Under Jackson, due
process requires that "no person shall be made to suffer the onus
of a criminal conviction except upon sufficient proof - defined as
evidence necessary to convince a trier of fact beyond a reasonable
doubt of the existence of every element of the offense." Id. at
316. More succinctly, the relevant test we take from Jackson is
"whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Id. at
319 (emphasis in original).
Thus, for our purposes, we must decide whether the SJC's
application of Jackson to O'Laughlin's case was "objectively
unreasonable." Although "[t]he term 'unreasonable' is no doubt
difficult to define," Hurtado, 245 F.3d at 17 (quoting Williams v.
Taylor, 529 U.S. 362, 410 (2000)), we have explained that "some
increment of incorrectness beyond error is required." McCambridge,
303 F.3d at 36 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d
Cir. 2000)). "The increment need not necessarily be great, but it
must be great enough to make the decision unreasonable in the
-24-
independent and objective judgment of the federal court." Id.15 To
be sure, "the gap between erroneous state court decisions and
unreasonable ones is narrow," Evans v. Thompson, 518 F.3d 1, 6
(1st Cir. 2008), and "it will be the rare case that will fall into
this gap," id. (citing Williams, 529 U.S. at 388). However, for an
erroneous decision to be unreasonable, judicial incompetence is not
necessary and "a case will fall into this narrow gap precluding
relief only when 'it is a close question whether the state decision
is in error.'" Id. at 7 (quoting McCambridge, 303 F.3d at 36)
(emphasis in original). "'It is enough if the Supreme Court's
general principles can be discerned and if, respectfully but with
confidence,' the federal court concludes that the state court
unreasonably applied federal law." Id. (quoting White, 399 F.3d at
25).
15
We also note "that a state-court adjudication of an issue framed
in terms of state law may receive section 2254(d)(1) deference so
long as the state standard is at least as protective of the
defendant's rights as its federal counterpart." Leftwich v.
Maloney, 532 F.3d 20, 23-24 (1st Cir. 2008); see also White v.
Coplan, 399 F.3d 18, 23 (1st Cir. 2005) (explaining that a federal
habeas court may "infer that the federal claim was considered if
the state court rejects a counterpart state claim and then cites to
a case holding that the federal constitution provides no greater
protection"). Even though the SJC did not cite Jackson, we have no
qualms with its analysis in this respect. The SJC relied on
Massachusetts case law that has expressly adopted the federal
constitutional standard in Jackson. See Commonwealth v. Latimore,
393 N.E.2d 370, 375 (Mass. 1979); see also Leftwich, 532 F.3d at 24
("Because the Latimore court adopted the governing federal
constitutional standard as the Massachusetts standard for
sufficiency of the evidence challenges, . . . we can securely
reason that in scouring the record for Latimore error and finding
none the SJC effectively answered the federal constitutional
question.") (citations omitted).
-25-
Further, in our inquiry of objective unreasonableness the
question "is not how well reasoned the state court decision is, but
whether the outcome is reasonable." Hurtado, 245 F.3d at 20. We
note that just because an opinion is poorly reasoned does not "mean
that the outcome represents an unreasonable application, although
. . . it is certainly ground for further inquiry if the state court
ignores material facts." Id. (internal citation omitted). "'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.'" Healy, 453 F.3d
at 28-29 (1st Cir. 2006) (quoting Bui v. DiPaolo, 170 F.3d 232, 243
(1st Cir. 1999)).
As a final note, we emphasize the great degree of
deference state court judgments are due, especially those that
uphold jury verdicts.16
16
For example, in Hurtado, we explained:
[A]s a general rule, federal courts should be
particularly cautious about issuing habeas, on grounds of
the objective unreasonableness of a state court's
conclusion that the evidence is sufficient, where there
has been a verdict of guilt by a jury of a defendant's
peers, where the defendant's credibility was evaluated by
the jury hearing his testimony, where that verdict has
been affirmed on appeal in the state system, and where
there is no claim of constitutional error in the conduct
of the trial. Even on direct appeal, claims that the
evidence was insufficient to support the verdict are
"often made, but rarely successful."
245 F.3d at 19-20 (quoting United States v. Moran, 984 F.2d 1299,
-26-
B. Applicable Law
1. The Jackson Standard
Turning to the underlying constitutional right asserted
here, O'Laughlin maintains that his due process rights were
violated because after viewing the evidence in the light most
favorable to the prosecution, no rational trier of fact could have
identified him as the assailant beyond a reasonable doubt. See
Jackson, 443 U.S. at 319 ("whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt.") (emphasis in original); United States v. Ayala,
289 F.3d 16, 25 (1st Cir. 2002) ("Identification of the defendant
as the person who committed the charged crime is always an
essential element which the government must establish beyond a
reasonable doubt.") (quotation marks and citations omitted).
"The Jackson standard is as easy to articulate as it is
difficult to apply." Newman v. Metrish, 543 F.3d 793, 796 (6th
Cir. 2008); see generally Hon. Jon O. Newman, Beyond "Reasonable
Doubt," 68 N.Y.U. L. Rev. 979 (1993) (discussing difficulty of
defining term); Note, Reasonable Doubt: An Argument Against
Definition, 108 Harv. L. Rev. 1955 (1995) (same). This is
particularly the case where we have no eyewitness to identify the
perpetrator. In cases based on circumstantial evidence such as the
1300 (1st Cir. 1993)).
-27-
instant case,17 "we face head-on the disturbing truth that guilty
verdicts rest on judgments about probabilities and those judgments
are usually intuitive rather than scientific." Stewart v. Coalter,
48 F.3d 610, 614 (1st Cir. 1995).
Despite the lack of precision in determining what
constitutes reasonable doubt and the inherent difficulty in
defining the term, this court and others have attempted to
explicate the standard. For example, we have stated that "[g]uilt
beyond a reasonable doubt cannot be premised on pure conjecture.
But a conjecture consistent with the evidence becomes less and less
a conjecture, and moves gradually toward proof, as alternative
innocent explanations are discarded or made less likely." Id. at
615-16.
As we have stated on multiple occasions, "'[b]eyond a
reasonable doubt' does not require the exclusion of every other
hypothesis; it is enough that all 'reasonable' doubts be excluded."
Id. at 616 (quoting United States v. Oreto, 37 F.3d 739, 753 (1st
Cir. 1994)); see also United States v. Dwinells, 508 F.3d 63, 74
(1st Cir. 2007); United States v. Olbres, 61 F.3d 967, 976 (1st
Cir. 1995); United States v. Brown, 603 F.2d 1022, 1025 (1st Cir.
1979) ("The prosecution may prove its case by circumstantial
17
Like the SJC, we acknowledge that to pass constitutional muster,
direct evidence of identification is not necessary.
"Identification can be inferred from all the facts and
circumstances that are in evidence." Ayala, 289 F.3d at 25
(quotation marks and citations omitted).
-28-
evidence, and it need not exclude every reasonable hypothesis of
innocence so long as the total evidence permits a conclusion of
guilt beyond a reasonable doubt.").
We note that although the circumstantial evidence is
permissible to discern the identity of the perpetrator, there are
some limits to its probative value. "[A] reviewing court should
not give credence to 'evidentiary interpretations and illations
that are unreasonable, insupportable, or overly speculative.'"
Leftwich, 532 F.3d at 23 (quoting United States v. Spinney, 65 F.3d
231, 234 (1st Cir. 1995)); see also United States v. Valerio, 48
F.3d 58, 64 (1st Cir. 1995) ("we are loath to stack inference upon
inference in order to uphold the jury's verdict"). Further,
[i]f the evidence viewed in the light most
favorable to the verdict gives equal or nearly
equal circumstantial support to a theory of
guilt and a theory of innocence of the crime
charged, this court must reverse the
conviction. This is so because . . . where an
equal or nearly equal theory of guilt and a
theory of innocence is supported by the
evidence viewed in the light most favorable to
the prosecution, a reasonable jury must
necessarily entertain a reasonable doubt.
United States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir. 1995)
(alterations, ellipses, and emphasis in original) (internal
quotation marks omitted).
Although we give great deference to jury verdicts, we
have held that evidence may sometimes be insufficient to sustain a
jury verdict of guilt beyond a reasonable doubt. See, e.g., United
States v. García-Torres, 280 F.3d 1, 6 (1st Cir. 2002) (holding
-29-
evidence insufficient to show proof beyond reasonable doubt that
defendant knew he was aiding in drug conspiracy when participating
in kidnapping and murder); United States v. Blasini-Lluberas, 169
F.3d 57, 62-64) (1st Cir. 1999) (holding evidence insufficient to
support convictions of bank officer on four of five counts of
misapplication of bank funds); United States v. Morillo, 158 F.3d
18, 24 (1st Cir. 1998) (holding evidence insufficient to support
inference of knowledge of conspiracy's purpose); United States v.
Czubinski, 106 F.3d 1069, 1073-74 (1st Cir. 1997) (holding evidence
insufficient to show defendant intended to carry out a scheme to
defraud the IRS under wire fraud statute); United States v. de la
Cruz-Paulino, 61 F.3d 986, 1001 (1st Cir. 1995) (holding evidence
insufficient to support conviction for aiding and abetting where
prosecution failed to show defendant shared the specific intent of
the principal); Valerio, 48 F.3d at 65 (holding evidence
insufficient to support a finding of intent to distribute cocaine).
C. Analysis of the SJC Opinion
As our sister court has noted, "[a]lthough circumstantial
evidence alone can support a conviction, there are times that it
amounts to only a reasonable speculation and not to sufficient
evidence." Newman, 543 F.3d at 796. This is such a case.
The instant facts may support a reasonable speculation
that O'Laughlin was the assailant, but not sufficient evidence to
establish his guilt. Taken together, the circumstantial evidence
-30-
in this case, even when drawing all reasonable inferences in favor
of the prosecution, does not permit any rational jury to conclude
that O'Laughlin was the assailant beyond a reasonable doubt.
Specifically, the evidence that O'Laughlin acted upon a
financial motive to commit the attack is weak at best. A jury
could permissibly conclude that he needed money to acquire crack
cocaine, giving him reason to break into Mrs. Kotowski's apartment,
a person whom he knew had money. However, Mrs. Kotowski testified
that nothing of value was taken and no items, not even expensive
jewelry in plain view, were disturbed. The SJC accounted for this
fact by stating that the jury could draw "a reasonable inference
that the defendant was frightened off before he could steal
anything when he heard the neighbor [Whittemore] speaking."
O'Laughlin II, 843 N.E.2d at 627 n.11. Even if the assailant
deduced that the neighbor was calling the police in response to the
attack,18 no rational juror could conclude that the placement of
this phone call frightened him off given the volume and duration of
Mrs. Kotowski's screams. Moreover, the assailant's actions are
inconsistent with O'Laughlin's purported financial motive in view
of the savage beating Mrs. Kotowski suffered at the hands of the
assailant, an attack involving at least fifteen to twenty blows
that nearly broke every bone in her face and skull. If the
18
A reenactment demonstrated that the assailant would not have
been able to make out that Whittemore was calling the police.
-31-
assailant were motivated by money, a few blows to incapacitate her
would have been sufficient.
With respect to the opportunity to commit the crime,
O'Laughlin had a master key and there were no signs of forced
entry; thus, one possible inference is that O'Laughlin used his
master key to enter Mrs. Kotowski's apartment. It is notable,
however, that several others on the maintenance staff possessed a
master key. Also, Mrs. Kotowski could have let someone familiar to
her into the apartment.
With respect to the means for the attack, a jury could
permissibly find that the aluminum bat found in the woods was
O'Laughlin's bat given that his name was on the bat and that he
admitted to owning the bat at one time. Yet, there was little
evidence connecting the aluminum bat, a non-unique item in a
residential complex, to the crime scene apart from the fact that it
was found twenty-five yards from the residential complex the
following day and the use of such an object was "consistent" with
Mrs. Kotowski's injuries.19 Of course, any bat likely would have
been consistent with her injuries. Also, Whittemore, a carpenter,
testified that he heard "wood hitting wood," as opposed to hearing
19
This is not to say that each of us is convinced that the state
court's decision is unreasonable in every respect. But this case
comes to us on arguments as presented by the parties. This panel
may not be in complete unanimity in all particulars, but we do
agree that the petitioner has the better of the argument with
respect to the means evidence introduced by the prosecution at
trial.
-32-
the sound of a hollow aluminum bat, when he was awakened.
Furthermore, wooden bats were found in Mrs. Kotowski's estranged
husband's garage.
We next turn to O'Laughlin's consciousness of guilt,
which the SJC considered the strongest evidence in favor of
reinstating the conviction.20 When viewed in context, this evidence
is minimally probative on the question of whether O'Laughlin was
the assailant.
Notwithstanding the fact that it was just after 2:00
a.m., the SJC cited to O'Laughlin's "uneasy and distant" demeanor
and his unwillingness to look Officers Tierney and Skowron in the
eye when they confronted him just minutes after the attack.
However, both officers, even though they were responding to reports
of a possible assault, did not consider O'Laughlin's behavior
suspicious at the time. Indeed, they initially believed he was the
reporting party and after asking him a few brief questions they
left the area. Even the fact that O'Laughlin was only clad in
boxers in near-freezing temperature did not give them pause after
he explained to them that he was awakened by animal screams and had
gone outside to place a stick in the dumpster, a fact Officer
20
We compare infra the consciousness of guilt evidence in our case
to that of Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005). In
Juan H., the Ninth Circuit granted habeas relief to a petitioner in
part because it viewed that any conclusion regarding the
petitioner's guilt based on the prosecution's consciousness of
guilt evidence amounted to no more than "bare conjecture." Id. at
1277.
-33-
Tierney promptly verified. Also, the SJC explained that a jury
could find it "implausible" that O'Laughlin would have gone outside
without "putting on at least minimal clothing" if his true reason
for going outside was to check for animals. Yet, Officer Tierney
stated that O'Laughlin appeared unfazed by the cold and
O'Laughlin's alibi shows that he did not intend to stay outside for
a very long time.
The other consciousness of guilt evidence cited by the
SJC -- O'Laughlin's reluctance to be interviewed by the police, the
inconsistent versions of how he was awoken, his reaction to the
neighbor's report of an assault, the fact that he was agitated
during the interview, and his reaction when the police wanted to
swab his closet door -- while not helpful to his case, are not
enough, even when considered in combination with other
circumstantial evidence, to allow a jury to permissibly conclude
O'Laughlin's guilt beyond a reasonable doubt.
With respect to this evidence, the fact that O'Laughlin
was reluctant to come down to the police station and displayed some
agitation during the interview has minimal probative value in
determining whether O'Laughlin was the assailant. Although this
behavior could indicate consciousness of guilt for some crime, such
as possessing crack cocaine (which the evidence shows he admitted
to being concerned about), it is an impermissible inferential leap
for a jury to find this behavior significantly probative of whether
-34-
O'Laughlin committed such a brutal attack.21 Likewise, his
indifferent reaction to his neighbor informing him of the attack
the following morning may bear on whether he was a compassionate
person, but has little probative value in assessing O'Laughlin's
guilt.
Admittedly, the conflicting versions O'Laughlin gave the
police as to how he was awoken and his reaction to the police's
request to swab his closet door when they were searching his home
could be probative evidence linking O'Laughlin to the crime.
However, in light of O'Laughlin's concerns that the police would
discover his drug use, this evidence was insufficient to serve as
the primary basis upon which the jury could rely to conclude
O'Laughlin's guilt beyond a reasonable doubt.
Lastly, the SJC cited bruises and marks on O'Laughlin's
face as evidence from which the jury could infer that an
altercation occurred between O'Laughlin and Mrs. Kotowski.
However, these bruises and marks have minimal, if any, probative
force given the fact that they were not even noted by Officers
Tierney and Skowron when they were responding to an assault just
minutes after the attack.
It bears repeating that the prosecution had to rely on
circumstantial evidence because no physical or DNA evidence linked
21
This is not a case where the defendant stonewalled the police.
He approached the police just minutes after the attack, he
submitted to a ten-minute interview with the Chief of Police, and
ultimately allowed the police to search his apartment.
-35-
O'Laughlin to the attack despite the copious amount of blood at the
crime scene. Considering the large amount of blood, it is
difficult to fathom how O'Laughlin was able to avoid having any
blood or other DNA evidence connect him to Mrs. Kotowski. Given
the insufficiency of the evidence, circumstantial or otherwise,
tying O'Laughlin to the attack, we conclude that a rational jury
could not find O'Laughlin's guilt beyond a reasonable doubt.
D. Objectively Unreasonable Standard for Purposes of
Habeas Review
Although we have identified several gaps in the SJC's
analysis, we are mindful that on habeas review under AEDPA we are
not permitted to grant a writ if we merely disagree with the jury
verdict or if we identify an error in the SJC's reasoning. The
relevant inquiry is whether the SJC was objectively unreasonable in
upholding the conviction.
We once again acknowledge the extremely high bar that
must be overcome on habeas review to overturn a state court
decision; however, that bar is not insurmountable and on rare
occasions we have held a state court decision to be objectively
unreasonable. See, e.g., White, 399 F.3d at 25 (holding on habeas
review that state court unreasonably applied Supreme Court's
Confrontation Clause jurisprudence where state court barred
petitioner from cross examining complainants regarding prior
accusations).
-36-
This court has identified certain guidelines that it
finds useful in analyzing sufficiency claims on habeas review.22
In addition, we note that although we evaluate the state court
decision in light of Supreme Court precedent, we are not precluded
from looking at other federal court decisions that may help guide
us in applying the Jackson standard. Indeed, "'[d]ecisions from
the lower federal courts may help inform the AEDPA analysis to the
extent that they state the clearly established federal law
determined by the Supreme Court.'" Evans, 518 F.3d at 10
(alteration in original) (quoting Aspen v. Bissonnette, 480 F.3d
571, 574 n.1 (1st Cir. 2007)). This is especially true when
"'factually similar cases from the lower federal courts' can
'provid[e] a valuable reference point' when considering the
22
These include:
(1) The focus of the inquiry is on the state court
decision;
(2) Even with the deference due by statute to the state
court's determinations, the federal habeas court must
itself look to "the totality of the evidence" in
evaluating the state court's decision;
(3) The failure of the state court to consider at all a
key argument of the defendant may indicate that its
conclusion is objectively unreasonable; however, the
paucity of reasoning employed by the state court does not
itself establish that its result is objectively
unreasonable;
(4) The failure of a state court to give appropriate
weight to all of the evidence may mean that its
conclusion is objectively unreasonable; and
(5) The absence of cases of conviction precisely parallel
on their facts does not, by itself, establish objective
unreasonableness.
Hurtado, 245 F.3d at 18.
-37-
reasonableness of a state court's application of Supreme Court
precedent to a particular set of facts." Id. (alteration in
original) (quoting Rashad v. Walsh, 300 F.3d 35 (1st Cir. 2002)).
Under § 2254(d)(1), we are not constrained in our "ability to draw
from any legal source in determining whether the state court's
decision rests on constitutional error or is an unreasonable
application of Supreme Court precedent. [Section 2254(d)(1)] only
limits the grounds on which habeas relief may be granted." Id.
With this in mind, we look to a recent case, Newman v.
Metrish, where the Sixth Circuit held a state court ruling to be
objectively unreasonable on grounds that the prosecution did not
present sufficient evidence to support a prosecution for murder of
a known drug dealer. 543 F.3d at 797. In Newman, the prosecution
presented evidence at trial that the petitioner planned to rob drug
dealers for drugs or money; that the victim was a known drug dealer
who kept drugs in his freezer; that the petitioner and the victim
were known to engage in drug transactions in the past; that the
victim's freezer was "open and empty" after he was killed; and that
the petitioner had a motive for the killing because he had seen the
victim "make a pass" at the petitioner's girlfriend. Id. at 794.
Furthermore, the prosecution presented evidence supporting an
inference that Newman had possessed and once purchased the murder
weapon. Id. This evidence included forensic evidence and the fact
-38-
that the petitioner's friend saw a gun similar to the murder weapon
in the petitioner's home a few weeks prior to the murder.23 Id.
In analyzing the evidence under Jackson, the Newman court
stated that even when "consider[ing] all of the evidence in the
light most favorable to the prosecution, there remains reasonable
doubt because we are limited by what inferences reason will allow
us to draw." Id. at 797. It remarked that these limitations
included its ability to "infer only that [the petitioner] intended
to rob a drug dealer and knew that [the victim] was a drug dealer,
that a gun previously owned by [the petitioner] was used to kill
[the victim], and that a similar looking gun was seen in [the
petitioner's] home approximately two weeks before the murder." Id.
The Newman court added that "even assuming that [the petitioner's]
gun was indeed the one used in the homicide, there was no evidence
of what happened to it between that date and the date of the
homicide, and we need not speculate as to what might have
happened." Id.
The Newman court reasoned that while there was "a wealth
of information showing that [the petitioner] owned the gun,"
23
With respect to the murder weapon, the Newman court acknowledged
that "the prosecution offered ample evidence to support an
inference that [the petitioner] had previously possessed at least
one of the murder weapons." Id. at 795. However, it noted that
"the prosecution did not offer any evidence that [the petitioner]
had used or possessed the weapons on the day of the murder," any
"eyewitness testimony," any "latent fingerprints from the crime
scene or the items in the gym bag" in which the alleged murder
weapon was found. Id.
-39-
"evidence placing [the petitioner] at the scene" was "conspicuously
absent." Id. at 797. It pointed to the fact that there was no
eyewitness testimony and the police did not recover any
fingerprints from the crime scene. Id. The Newman court stated
that "[w]ithout additional evidence placing [him] at the scene of
the crime, there is only a reasonable speculation that [the
petitioner] himself was present." Id. It concluded that "where
the evidence taken in the light most favorable to the prosecution
creates only a reasonable speculation that a defendant was present
at the crime, there is insufficient evidence to satisfy the Jackson
standard." Id. Accordingly, the Newman court declared the state
court ruling an unreasonable application of clearly established
federal law. Id.
While Newman's reasoning certainly does not control our
analysis, it is significant that our sister court ruled a state
court decision to be objectively unreasonable under Jackson on
facts more probative of a petitioner's guilt than what we have
here. For example, O'Laughlin, like the petitioner in Newman, was
not connected to the crime scene by forensic evidence or eyewitness
testimony; however, unlike the petitioner in Newman who had prior
business dealings with the victim in that case, O'Laughlin had
minimal contact with the victim apart from a few casual
conversations and a maintenance call. Moreover, the petitioner's
robbery motive in Newman was consistent with the evidence -- as the
victim's freezer, which was his storage place for drugs, was open
-40-
and empty.24 In the instant case, however, O'Laughlin's alleged
motive of robbery to satisfy his need for crack cocaine does not
align with the fact that nothing of value was taken from Mrs.
Kotowski's apartment or with how savagely she was beaten at the
hands of her assailant. Lastly, in Newman, the petitioner owned a
gun whose spent cartridges and bullets matched those found in the
victim's body. Here, the aluminum baseball bat that O'Laughlin
owned was merely "consistent" with Mrs. Kotowski's injuries, in the
same way a metal pipe or some other long, sturdy object would be
consistent with her injuries.
Another decision from a sister court also informs our
analysis as to whether the SJC unreasonably applied the Jackson
standard. In Juan H. v. Allen, the Ninth Circuit held that the
state court decision was objectively unreasonable because there was
insufficient evidence to conclude that a juvenile petitioner aided
and abetted a principal in committing first-degree murder and
first-degree attempted murder. 408 F.3d at 1278-79.
In Juan H., the state court had concluded that the
petitioner had "manifested consciousness of guilt" because he fled
from the crime scene; he attempted to leave his home with his
family after the shooting; and he gave a false alibi to the police
that he was in a trailer and not present during the shooting. Id.
24
Even if, in Newman, the petitioner's motive was anger because
the victim had made a pass at the petitioner's girlfriend, the
victim's gunshot wound is not inconsistent with this motive.
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at 1277. Also, as motive evidence, the state court cited
petitioner's gang gestures towards the victim and the fact that the
petitioner had punched the victim on a prior occasion. Id.
With respect to the evidence of flight, the Juan H. court
reasoned that "[n]o reasonable trier of fact could find evidence of
criminal culpability in the decision of a teenager to run home from
the scene of a shooting, regardless of whether the home was in the
same general direction as the car of a fleeing suspect." Id. The
Juan H. court added that "[l]ikewise, any rational factfinder would
find little or no evidence of guilt in the fact that [the
petitioner] attempted, along with the rest of his family, to leave
his home as it was being surrounded by an angry mob of neighbors."
Id.
Regarding the false alibi, the Juan H. court remarked
that it was "bare conjecture" to regard the petitioner's untrue
statements to the police as reflective of consciousness of guilt.
Id. The court explained that the petitioner "might have made a
false statement to law enforcement for any number of reasons,
especially given that any statements he made as a witness would
likely be used to prosecute his older brother, a member of his
immediate family." Id. The Juan H. court stressed: "Although we
must draw all reasonable inferences in favor of the prosecution, a
'reasonable' inference is one that is supported by a chain of
logic, rather than, as in this case, mere speculation dressed up in
the guise of evidence." Id.
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Finally, the Juan H. court stated that the prosecution's
motive evidence was mere conjecture, reasoning that the
"interpersonal tensions" between the petitioner and the victim "do
not create a sufficiently strong inference of motive to allow a
reasonable trier of fact to conclude beyond a reasonable doubt that
[the petitioner] had reason to aid and abet first-degree murder."
Id. at 1278.
The Juan H. court maintained that "[s]peculation and
conjecture cannot take the place of reasonable inferences and
evidence -- whether direct or circumstantial -- that [the
petitioner] -- through both guilty mind and guilty act -- acted in
consort with [the principal]." Id. at 1279. Applying the Jackson
standard to the state court decision, the Juan H. court ruled that
"only speculation . . . supports a conclusion" that the petitioner
was guilty of aiding and abetting the first-degree murders. Id.
It concluded that "[s]uch a lack of evidence violates the
Fourteenth Amendment guarantee that an accused must go free unless
and until the prosecution presents evidence that proves guilt
beyond a reasonable doubt." Id. (citing In re Winship, 397 U.S.
358, 365-68 (1970)).
Admittedly, the facts in Juan H. do not line up precisely
with those of the instant case. However, we find instructive the
Juan H. court's treatment of its consciousness of guilt evidence.25
25
As we stated above, here the SJC viewed its consciousness of
guilt evidence to be most probative of O'Laughlin's guilt.
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The Juan H. court held that the petitioner's lies about his
presence at the crime scene and the fact that he fled the area were
insufficient to support an inference that he aided and abetted the
murderer, reasoning that a conclusion regarding the petitioner's
guilt from this evidence would be no more than "bare conjecture."
The evidence in Juan H. is far more reflective of
consciousness of guilt than what we have here. Unlike the
petitioner in Juan H., O'Laughlin was not caught in a lie about
whether he was present at the crime scene and did not flee the
scene of the crime. In fact, O'Laughlin approached the police just
minutes after the attack.26 Similar to the Juan H. court's
reasoning, this consciousness of guilt evidence constituted "bare
conjecture" regarding O'Laughlin's guilt and thus renders the SJC
decision that relied primarily on this evidence, objectively
unreasonable.
We reiterate that Juan H. and Newman, while not
controlling, powerfully illustrate how federal courts, acting under
the AEDPA regime, can hold in appropriate circumstances state court
decisions to be objectively unreasonable when applying Jackson.
26
As explained above, O'Laughlin's interactions with the police
immediately after the assault and the day after, while not
irrelevant, did not constitute sufficient evidence for a rational
jury, even combined with the other circumstantial evidence, to
conclude he was the assailant. Again, it may have been permissible
for the jury to find that O'Laughlin possessed consciousness of
guilt of some crime, such as drug possession, for which the
evidence showed there was some basis, but not of a vicious attack
on a neighbor with whom he had very little prior contact.
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Our sister courts' reasoning in these cases underscore why we
believe habeas relief should be granted in the instant case.
Our holding is further bolstered by a post-AEDPA case of
our own, Leftwich v. Maloney, where a petitioner claimed there to
be insufficient evidence for a state court to correctly identify
him as the perpetrator of the offense for which he was convicted.
See Leftwich, 532 F.3d at 21. Although we held that habeas relief
was not warranted in Leftwich, it is helpful to consider the
factors we considered relevant.
In Leftwich, the petitioner argued that there was
insufficient evidence to conclude that he was a principal rather
than an accessory to the murder of a bishop who had taken the
petitioner in when he was released from prison. Id. In holding
that there was sufficient evidence to support a guilty verdict, the
Leftwich court considered that the petitioner confessed to being in
the same place, a ditch, within minutes of when the murder
occurred; that the police recovered from the petitioner a
Leatherman tool whose length and width were consistent with the
victim's wounds; that he "embarked on a wide-ranging cleaning
spree" shortly before his arrest; that forensic evidence included
fingerprint evidence and the victim's blood on the petitioner's
clothes and hands; that the petitioner lied about having any
knowledge of the victim's death; that the petitioner's motive
resulted from the victim's disapproval of the petitioner's use of
company credit card to satisfy a gambling debt; and that the
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"record [was] barren of any evidence as to who besides the
petitioner could have inflicted the fatal stab wounds." Id. at 25-
27.
We note the many distinguishing features of the instant
case as compared to Leftwich. Specifically, unlike the petitioner
in Leftwich, there was no physical or forensic evidence linking
O'Laughlin to the crime scene; O'Laughlin's financial motive was
inconsistent with the evidence in Mrs. Kotowski's apartment; and
O'Laughlin presented compelling third-party evidence that Mr.
Kotowski was the actual assailant. We recognize that the stronger
evidence supporting the petitioner's guilt in Leftwich, when
compared to the present case, is not persuasive by itself to render
the evidence insufficient here. However, the fact that the instant
facts satisfy very few of the criteria the Leftwich court
considered relevant in its Jackson analysis, provides additional
support for our conclusion here that the SJC's decision to
reinstate the conviction was objectively unreasonable.
We acknowledge the many strands of circumstantial
evidence the prosecution has presented in this case; however, when
viewing this evidence in its totality, as we must do on habeas
review, that evidence is far from sufficient to establish
O'Laughlin's guilt under Jackson. Based on the record before us
and drawing all reasonable inferences in favor of the prosecution,
we hold that it would be overly speculative to conclude O'Laughlin
to be the assailant beyond a reasonable doubt. Accordingly, we
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conclude that the SJC's decision to uphold O'Laughlin's conviction
was objectively unreasonable.
III. Conclusion
Because double jeopardy principles apply here, we remand
to the district court to order O'Laughlin's unconditional release
with prejudice to reprosecution. See Burks v. United States, 437
U.S. 1, 18 (1978) (holding that "the Double Jeopardy Clause
precludes a second trial once the reviewing court has found the
evidence legally insufficient"), quoted in Foxworth v. Maloney, 515
F.3d 1, 2 (1st Cir. 2008).27
Reversed and Remanded for action consistent with this
opinion.
27
O'Laughlin also claims that the SJC, in concluding that the
trial judge properly excluded a note O'Laughlin alleged to have
supported his third-party culprit defense, violated his
constitutional right to present a defense. In view of our holding
regarding O'Laughlin's Jackson claim, we need not reach this issue.
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