Nardi v. Pepe

United States Court of Appeals
For the First Circuit

No. 11-1247

GEORGE J. NARDI,

Petitioner, Appellant,

v.

PETER PEPE, SUPERINTENDENT,
MASSACHUSETTS CORRECTIONAL INSTITUTE, CONCORD,

Respondent, Appellee.

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

[Hon. Rya W. Zobel, U.S. District Judge]

Before
Lynch, Chief Judge,
Boudin and Stahl, Circuit Judges.

Stewart T. Graham, Jr. with whom Graham & Graham was on brief
for appellant.
Jennifer L. Sullivan, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief
for appellee.

November 22, 2011
 BOUDIN, Circuit Judge. George Nardi was convicted of

first-degree murder in a Massachusetts state trial court for

killing his mother, Dianne Barchard. Nardi later sought federal

habeas relief and now, following its denial, presses a single claim

on appeal: he argues that the state trial court violated his rights

under the Confrontation Clause of the Sixth Amendment by admitting

expert opinion testimony resting on what he contends was

inadmissible testimonial hearsay.

The underlying facts are drawn from the Massachusetts

Supreme Judicial Court's ("SJC") opinion affirming Nardi's

conviction, Commonwealth v. Nardi, 893 N.E.2d 1221 (Mass. 2008).

See 28 U.S.C. § 2254(e)(1) (2006). At the time of Barchard's

death, Nardi, then thirty-seven years old, lived with Barchard,

then fifty-nine years old, in her apartment. The two had what the

SJC called a stormy relationship. In December 2002, Barchard began

telling friends--and Nardi became aware--that she planned to move

into elderly housing the following month, where Nardi could not

stay with her.

Shortly thereafter, Barchard disappeared. This happened

a few months after Nardi damaged beyond repair his car in a DUI

crash, preventing him from driving to work and further straining

his relationship with his mother, as he had less money and drank

more than usual. After his mother's disappearance, Nardi told her

friends various lies about her whereabouts.

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 Eventually, alerted by one of Barchard's friends who was

alarmed by her absence, authorities discovered Barchard's

decomposing body lying under a blanket in a bedroom of her

apartment in which Nardi continued to live. Nardi had concealed

Barchard's disappearance from her friends and family for about two

weeks; she had been dead most of that time. Forensic evidence

suggested that he had mopped up a blood trail going from the

kitchen to the bedroom where Barchard was found.

Dr. James Weiner performed an autopsy on Barchard's body

and recorded his findings in an autopsy report. The report noted

bruising on her face consistent with suffocation by the pressing of

a hand over the mouth and nose, as well as signs of limited heart

disease. Dr. Weiner concluded that the cause of death was

consistent with asphyxia by suffocation. The state charged Nardi

with first-degree murder and his case was scheduled for trial.

Before that trial, Dr. Weiner retired to Florida and was

unable to return to testify because of a medical condition. At

trial, the prosecution called instead Dr. Edward McDonough who had

extensive experience as a medical examiner but no involvement in

Barchard's autopsy. Before testifying, Dr. McDonough reviewed Dr.

Weiner's autopsy report, as well as autopsy photographs, tissue

slides and a toxicology report, and formed what he described as his

own opinion about the cause of Barchard's death.

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 Dr. McDonough testified during Nardi's trial that in his

expert opinion, the cause of Barchard's death was consistent with

asphyxia by suffocation. He also testified to several facts

derived from the autopsy report, and revealed that Dr. Weiner had

also concluded Barchard was suffocated. The government

additionally introduced evidence of the contentious relationship

between Nardi and Barchard, her plans to move out, his efforts at

concealment of the body, and evidence concerning the clean-up of

the blood trail in the apartment.

Nardi's defense at trial, supported by his own testimony,

was that Barchard died of a heart attack and that he had concealed

her death out of panic and bad judgment. Nardi offered his own

medical expert to interpret the autopsy findings regarding

Barchard's heart disease. Nardi's counsel focused his cross-

examination of Dr. McDonough on Barchard's heart condition, the

lack of certain injuries consistent with some forms of suffocation,

and possible inconsistencies between findings in the report.

At the end of the six-day trial, the jury deliberated for

several hours and then convicted Nardi of first-degree murder. He

was thereafter sentenced to life in prison. On direct review, the

SJC upheld the conviction, rejecting Nardi's claims based on the

Sixth Amendment's Confrontation Clause, see Crawford v. Washington,

541 U.S. 36 (2004), and its state constitutional equivalent, Mass.

Const. pt. 1, art. 12. Nardi, 893 N.E.2d at 1229-35.

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 The SJC first concluded that admission of Dr. McDonough's

opinion based on the autopsy report did not standing alone violate

the Confrontation Clause; Dr. McDonough, said the SJC, was

providing his own opinion and it in turn rested on what were

traditional and permissible sources of expert knowledge. Nardi,

893 N.E.2d at 1229-31. Nardi, the SJC concluded, was free to

cross-examine Dr. McDonough regarding the strengths and weaknesses

of the foundation of that opinion. Id.

The SJC did view as a violation of the Confrontation

Clause Dr. McDonough's testimony revealing portions of the content

of Dr. Weiner's autopsy report. But it found under state

procedural law that this claim--not preserved at trial--was subject

to review only for error that created a "substantial likelihood of

a miscarriage of justice." Nardi, 893 N.E.2d at 1233-34. Because

Nardi himself used the autopsy report to support his heart attack

theory, the SJC saw no substantial likelihood of a miscarriage of

justice. Id.

Repairing to the federal habeas court, Nardi argued that

both Dr. McDonough's opinion and his testimony repeating in part

contents of the autopsy report violated Nardi's Sixth Amendment

rights. The district court denied both claims, concluding that at

the time of the SJC decision, neither claim was supported by

"clearly established" law under then-existing Supreme Court

precedent; as to the latter claim, the district court also ruled

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that it was procedurally defaulted and that any error would have

been harmless given Dr. McDonough's testimony as to his own

opinion.

The district court granted a certificate of

appealability, 28 U.S.C. § 2253(c); Fed. R. App. P. 22, limited to

the issue whether it was clearly established law at the time of

Nardi's trial that an autopsy report was inadmissible testimonial

hearsay and, if so, whether "a testifying expert's opinion may rely

on inadmissible [testimonial] hearsay." Our concern here is with

Dr. McDonough's opinion testimony rather than the references made

by him to the original report and to Dr. Weiner's views.1

Where a state court decides on the merits a question of

federal law--here, the admissibility of Dr. McDonough's own opinion

based in part on an autopsy report prepared by a non-testifying

witness--a federal habeas court may grant the writ only if the

state decision was "contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).

This narrowed habeas remedy was an effort by Congress to prevent

federal courts in habeas proceedings from second-guessing state

1
The SJC held that any objection to the references was not
preserved, so an independent and adequate state ground bars federal
habeas review. Coleman v. Thompson, 501 U.S. 722, 749-50 (1991).
Nardi does not contend otherwise or suggest this case falls within
an exception to the procedural default rule.

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courts in doubtful cases. Williams v. Taylor, 529 U.S. 362, 404,

406, 411 (2000).

Nardi says that the state court here did not decide the

Confrontation Clause question on the merits and relied only on

state law, see DiBenedetto v. Hall, 272 F.3d 1, 6-7 (1st Cir.

2001), cert. denied, 535 U.S. 1024 (2002), but he is wrong. The

SJC cited both the seminal Crawford decision of the Supreme Court

and prior state cases dealing with the federal right. Nardi, 893

N.E.2d at 1227, 1229-31. Indeed, the SJC made clear at the outset

of its discussion that Massachusetts' state constitution provides

protection coextensive with that of the Sixth Amendment on

confrontation issues. See Nardi, 893 N.E.2d at 1229 n.10.

Under section 2254(d)(1), only Supreme Court precedent in

effect at the time of the state court adjudication on the merits

counts as "clearly established Federal law," Greene v. Fisher, No.

10-637, 2011 WL 5335411, at *3-4 (U.S. Nov. 8, 2011); the only

pertinent Supreme Court precedent that applied at the time of the

SJC's decision affirming Nardi's conviction was Crawford. In our

view, Crawford (as matters stood when the SJC decided Nardi's

appeal) did not "clearly establish" that either the autopsy report

or Dr. McDonough's opinion in partial reliance upon it were

inadmissible under the Confrontation Clause.

We start with Nardi's predicate contention that the

autopsy report Dr. McDonough partly relied on was testimonial

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hearsay forbidden by Crawford. Crawford, reversing longstanding

precedent to the contrary, e.g., White v. Illinois, 502 U.S. 346,

356-57 (1992); Ohio v. Roberts, 448 U.S. 56, 62-66 (1980), held

that the Confrontation Clause barred "testimonial" hearsay,

specifically in Crawford itself, statements taken by the police

from a crime witness who later refused to testify and could not be

cross-examined. 541 U.S. at 68.

Although all nine Justices concurred in the result and

the majority opinion commanded seven votes, the apparent consensus

was misleading, partly because the Court declined to determine how

far its new "testimonial statement" category extended. In fact,

the majority opinion seemed to suggest a narrow reading of what

counts as "testimonial." Crawford, 541 U.S. at 56 ("Most of the

hearsay exceptions covered statements that by their nature were not

testimonial—for example, business records or statements in

furtherance of a conspiracy.").

Thus, the Court was sharply divided when, five years

later, Crawford was extended to affidavits prepared in a state

medical laboratory as to the quantity and nature of a seized drug.

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531, 2542 (2009).

Five Justices ruled that the affidavits were plainly made for

purposes of trial and so amounted to witness testimony subject to

the Confrontation Clause. Id. at 2532. However, four dissenters

saw this as a mistaken extension of Crawford, see 129 S. Ct. at

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2543 (Kennedy, J., dissenting), and--more important here--a

necessary fifth vote for the majority limited his support to

"formalized testimonial materials, such as affidavits, depositions,

prior testimony, or confessions," id. (Thomas, J., concurring).

Most recently, in Bullcoming v. New Mexico, 131 S. Ct.

2705 (2011), the Court extended Melendez-Diaz to a forensic

laboratory report prepared for trial purposes that certified a

machine read-out of blood alcohol level. Id. at 2709, 2717. This

time, Justice Sotomayor provided the needed fifth vote, stressing

that the certificate's primary purpose was as trial evidence, and

adding: "this is not a case in which an expert witness was asked

for his independent opinion about underlying testimonial reports

that were not themselves admitted into evidence." Id. at 2719,

2722 (Sotomayor, J., concurring).2

Abstractly, an autopsy report can be distinguished from,

or assimilated to, the sworn documents in Melendez-Diaz and

Bullcoming, and it is uncertain how the Court would resolve the

question. We treated such reports as not covered by the

Confrontation Clause, United States v. De La Cruz, 514 F.3d 121,

133-34 (1st Cir. 2008), cert. denied, 129 S. Ct. 2858 (2009), but

2
The significance of this primary purpose test was underscored
in Michigan v. Bryant, decided only last spring, where Justice
Sotomayor--writing for five Justices--explicitly employed the
primary purpose test in deciding that the dying statement of a
mortally wounded victim to the police was not testimonial and so
not barred by the Confrontation Clause. 131 S. Ct. 1143, 1156,
1165-67 (2011).

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the law has continued to evolve and no one can be certain just what

the Supreme Court would say about that issue today. However, our

concern here is with "clearly established" law when the SJC acted.

Melendez-Diaz and Bullcoming were decided after the SJC

acted in this case, and the Crawford decision predating SJC review

did not "clearly establish" that forensic laboratory reports were

barred as testimonial. We recently so held in Likely v. Ruane, 642

F.3d 99, 102 (1st Cir. 2011). That close decisions in the later

Supreme Court cases extended Crawford to new situations hardly

shows the outcomes were clearly preordained. And, even now it is

uncertain whether, under its primary purpose test, the Supreme

Court would classify autopsy reports as testimonial.

It is also unclear whether, even if the Court were to so

classify them, the admissibility of in-court expert testimony that

relied in some measure on such a report would be affected. In such

a case, a witness exists who can be cross-examined; and a long

tradition exists of allowing experts to rely on hearsay where it is

common practice in the profession to rely upon such evidence.

E.g., Fed. R. Evid. 703; 2 Broun et al., McCormick on Evidence

§ 324.3, at 417-19 (6th ed. 2006). One of the common examples is

a testifying doctor who relies in part on medical tests or

specialist reports.

Many experts in trials, in one degree or another, rely on

information supplied by others who are not present to testify.

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Several circuits, in addition to our own in De La Cruz, 514 F.3d at

134,3 have said that the Confrontation Clause does not limit

experts offering their own opinion regardless of the independent

admissibility of the material relied upon. The Supreme Court is

now considering whether the expert may disclose that material to

explain the opinion's foundation. People v. Williams, 939 N.E.2d

268 (Ill. 2010), cert. granted, 131 S. Ct. 3090 (U.S. June 28,

2011) (No. 10-8505).

In all events, we stress the present uncertainty of the

law only to emphasize that it was even more unsettled at the time

of Crawford just how far that decision would be extended beyond

statements taken by the police for specific use at trial.

Certainly it was not clearly established law at the time of the SJC

decision that any part of Dr. McDonough's testimony violated

clearly established Supreme Court precedent. That is enough to

resolve this case.

Affirmed.

3
E.g., United States v. Turner, 591 F.3d 928, 933-34 (7th Cir.
2010), petition for cert. filed (U.S. Apr. 12, 2010) (No. 09-
10231); United States v. Johnson, 587 F.3d 625, 636 (4th Cir.
2009), cert. denied, 130 S. Ct. 2128 (2010); United States v. Law,
528 F.3d 888, 912 (D.C. Cir. 2008), cert. denied, 129 S. Ct. 1023
(2009).

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