King v. MacEachern

United States Court of Appeals
For the First Circuit

No. 10-2095

MICHAEL KING,

Petitioner, Appellant,

v.

DUANE J. MACEACHERN, Superintendent,

Respondent, Appellee.

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

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Torruella, Boudin, and Thompson,
Circuit Judges.

Andrew S. Crouch, for petitioner-appellant.
David E. Rhinesmith, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief
for respondent-appellee.

December 2, 2011
 TORRUELLA, Circuit Judge. Convicted of armed robbery,

assault and battery, and intimidation of a witness, Petitioner-

Appellant Michael King ("King") appeals from the federal district

court's denial of his petition for a writ of habeas corpus. King

v. MacEachern, No. 08-10373, 2010 WL 3258870 (D. Mass. Aug. 17,

2010). King's principal claim is that there was insufficient

evidence to support his armed robbery and witness intimidation

convictions. For the following reasons, we affirm.

I. Background1

A. Midnight Robbery at the Mart

On September 9, 2003, Michael Jacques ("Jacques"), a

clerk at DB Mart, a convenience store located in Springfield,

Massachusetts, was working the 5:00 p.m. to 12:00 a.m. shift alone.

At approximately 11:30 p.m., King, a regular customer at the mart,

entered and left. At midnight, Jacques, having completed his

shift, began to close the store. While in the process of closing,

King returned. King knocked on the now-locked doors and asked to

be let in so he could look for a pager he claimed to have left

1
We set forth the facts as found in the Massachusetts Appeals
Court's ("MAC") decision affirming King's conviction, Commonwealth
v. King, 866 N.E.2d 938 (Mass. App. Ct. 2007). See DeBurgo v. St.
Amand, 587 F.3d 61, 62 (1st Cir. 2009). We supplement "with other
facts from the record that are consistent with the [state court's]
findings." Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006). We
are required to "accept the state court findings of fact unless
[King] convinces us, by clear and convincing evidence, that they
are in error." Id. (quoting McCambridge v. Hall, 303 F.3d 24, 26
(1st Cir. 2002)).

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behind during his earlier visit. Following a brief conversation,

Jacques opened the door and assisted King in searching the aisles

for the missing pager. The pager never surfaced. Jacques asked

King to leave, recommending that he return in the morning to speak

with the mart's manager.

Without warning, King punched Jacques on the left side of

his face. King then tackled Jacques, placed him in a "choke hold,"

and knocked him to the floor and up against his bicycle, which

Jacques had parked inside the store. King then tried to open the

cash register. On seeing Jacques begin to get up from the floor,

King warned, "I'm going to blow a hole in your head if you get up

and move." Jacques, taking King at his word, resumed his prior

position on the floor. He did not see King with a gun or other

weapon.

King ordered Jacques to tell him how to open the cash

register; Jacques complied. King removed approximately $1,400 from

the cash register, took Jacques's bicycle, and before leaving,

asked Jacques where the videotapes from the store's security camera

were located. Jacques told him they were in the manager's office

and that he did not have access to them. King warned that "[i]f he

saw [Jacques] on 22 News [a Springfield television program] he was

going to come back and kill [him], [his] whole family, [his] buddy

Ben, all of that." King, 866 N.E.2d at 941. King then left,

taking Jacques's bicycle.

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 Several minutes later, Jacques got up from the floor and

called the police. Officers arrived on the scene and searched the

surrounding area, but to no avail; they did not find an individual

matching King's description. Further investigation, however,

proved fruitful. On September 11, 2003 -- one day after the

robbery -- police apprehended King and arrested him. No weapon was

found on his person or in the nearby area at the time of arrest.

B. Indictment and Conviction

A grand jury indicted King for two counts of armed

robbery, Mass. Gen. Laws ch. 265, § 17 (1998); one count of assault

and battery, Mass. Gen. Laws ch. 265, § 13A (2002); and one count

of intimidation of a witness, Mass. Gen. Laws ch. 268, § 13B

(2010). A jury trial was held, at which the trial judge merged the

two armed robbery charges. The jury convicted King of all three

charges. The court sentenced King to a term of not more than six

years and not less than five years for the armed robbery

conviction, and to two concurrent one-year terms for the assault

and battery and intimidation of a witness convictions.

C. Challenging the Conviction: Seeking Appellate and Habeas Relief

King first appealed his conviction to the MAC. See King,

866 N.E.2d 938. He raised three arguments: (1) the trial judge

improperly denied King's motion for a required finding of not

guilty as to the armed robbery charge because there was

insufficient evidence showing he was in possession of a weapon at

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the time of the robbery; (2) the trial judge wrongly denied King's

motion for a required finding of not guilty as to the intimidation

of a witness charge because the evidence did not show he

intimidated a person furnishing information to a criminal

investigator; and (3) the trial judge improperly broadened the

scope of the witness intimidation statute in administering the jury

instructions. The MAC affirmed King's convictions. King, 866

N.E.2d at 940.

Addressing each argument, the MAC held that (1) the

evidence at trial established that King threatened to shoot the

victim, that he was arrested a day later without a weapon, and

thus, the jury's inference that King actually had a weapon when he

threatened Jacques was not improper, id. at 943-44; (2) King

construed the witness intimidation statute too narrowly; the jury,

in evaluating the evidence and the circumstances in which King's

statement was made, rationally could have determined that King

intended to intimidate Jacques from providing an official

investigating authority information related to the robbery, id. at

944-45; and (3) the trial judge's instructions were proper2 as the

2
One of the judge's challenged instructions provided that a
victim under the witness intimidation statute constituted one "who
was to be a person furnishing information to a criminal
investigator about a criminal offense." King, 866 N.E.2d at 945.
Another challenged instruction of the trial judge's stated that the
defendant acted "with the specific intent of influencing, impeding,
obstructing, delaying or otherwise interfering with that person as
a potential witness." Id. King argued that a conviction under the
witness intimidation statute could not stand on the mere

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witness intimidation statute does not require that a victim

actually be in the process of furnishing information when

threatened. King, 866 N.E.2d at 945-46.

King then turned to the Massachusetts Supreme Judicial

Court ("SJC") to challenge the MAC's determinations, filing an

application for leave to obtain further appellate review

("ALOFAR"). He raised two arguments. He first asserted that the

MAC erred in holding that a defendant may be convicted of armed

robbery based solely on a statement that he would "blow a hole" in

a victim's head, with no additional direct or circumstantial

evidence confirming the existence of a weapon at the scene of the

alleged crime. Second, he argued that the MAC "too broadly

interpret[ed] the witness intimidation statute's 'criminal

investigator' prong to include an instance where a defendant warned

a victim not to speak with the television broadcast media." The

SJC denied King's ALOFAR. Commonwealth v. King, 871 N.E.2d 491

(Mass. 2007).

Thereafter, a federal district court evaluated King's

habeas petition pursuant to 28 U.S.C. § 2254, considering only the

two issues submitted before the SJC, i.e., whether the state

court's decision constituted an unreasonable application of federal

law because there was insufficient evidence showing either that he

possibility that a victim might provide information to authorities
in the future. The MAC rejected this argument. Id.

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was armed with a dangerous weapon at the time of the alleged armed

robbery, or that he intimidated a person furnishing information to

a criminal investigator.3 The court ultimately denied relief,

holding the MAC had not unreasonably applied clearly established

Supreme Court precedent.4 It subsequently granted a certificate of

appealability as to King's remaining two claims, i.e., insufficient

evidence to support the armed robbery and witness intimidation

charges. King v. MacEachern, No. 08-10373-NMG, 2010 WL 5373933, at

*1 (D. Mass. Dec. 20, 2010).

II. Discussion

Just as a builder cannot lay his first brick without a

blueprint, we begin our analysis by sketching the applicable

3
King initially raised a third issue for habeas review, asserting
that the trial judge improperly instructed the jury and effectively
expanded the scope of the witness intimidation statute. King
subsequently withdrew his third claim because he failed to properly
exhaust it in state court as required by 28 U.S.C. § 2254(b).
4
Before the district court considered King's habeas petition,
King filed a motion for summary judgment as to his armed robbery
and witness intimidation claims. Respondent-Appellee opposed and
cross-motioned for summary judgment. The matter was referred to a
magistrate judge, who recommended that summary judgment be denied
on King's remaining two claims following his withdrawal of a third
claim pertaining to jury instructions. The district court endorsed
the magistrate judge's recommendation as to denial of summary
judgment and referred the case back to the magistrate judge for a
report and recommendation on the merits as to King's habeas
petition. The magistrate judge concluded that the MAC's decision
was not an unreasonable application of clearly established federal
law and recommended that habeas relief be denied and the petition
dismissed.

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framework for federal habeas review of state-court convictions. We

then address each of King's constitutional claims in turn.

A. Standard of Review

A habeas petitioner asserting an unreasonable application

of federal law claim stands at the base of a very steep mountain,

which we scale alongside him -- ever mindful that our accompanying

alpinist is on different footing than most appellees and must

surmount "'a substantially higher threshold' for obtaining relief

than de novo review." Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)

(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)) (noting

this "substantially higher threshold" in the context of a habeas

petitioner's unreasonable application of federal law claim under §

2254(d)(1)). We begin our ascent.

"We review the district court's denial of habeas relief

de novo." Shuman v. Spencer, 636 F.3d 24, 30 (1st Cir. 2011)

(quoting Lynch, 438 F.3d at 44). In conducting this review, the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")

mandates that we remain highly deferential towards the state

court's decision if it adjudicated the relevant claim on the

merits. See Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010);

Rashad v. Walsh, 300 F.3d 27, 34 (1st Cir. 2002) (citing Lindh v.

Murphy, 521 U.S. 320, 322, 336 (1997)). Because King's claim was

adjudicated on the merits by the state court, we may only grant

relief if the state court proceeding:

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 (1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or

(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.

28 U.S.C. § 2254(d).

King's underlying claim is one of insufficient evidence,

calling upon a federal constitutional rule derived from the Due

Process Clause of the Fourteenth Amendment and set forth in Jackson

v. Virginia, 443 U.S. 307 (1979). See Sivo v. Wall, 644 F.3d 46,

50 (1st Cir. 2011).5 Specifically, King asserts that the state

court's decision constituted an unreasonable application of Jackson

because the Commonwealth failed to prove by sufficient evidence

that he was armed with a dangerous weapon at the time of the

alleged armed robbery, or that he intimidated a person furnishing

information to a criminal investigator. Jackson requires that we

address "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

5
In evaluating King's arguments as to the sufficiency of the
evidence presented at trial, the MAC relied on Commonwealth v.
Latimore, 393 N.E.2d 370, 374-75 (Mass. 1979), which applies the
sufficiency standard set forth by the Supreme Court in Jackson, 443
U.S. at 313-16. See Hurtado v. Tucker, 245 F.3d 7, 12 (1st Cir.
2001) (noting that Latimore "appl[ies the] test articulated by the
Supreme Court in [Jackson]").

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doubt." Jackson, 443 U.S. at 319. We must take "credibility

determinations and competing factual inferences . . . in favor of

the verdict." Tash v. Roden, 626 F.3d 15, 20 (1st Cir. 2010)

(citing Jackson, 443 U.S. at 326). This Circuit has recognized

that "in practice the Jackson standard is higher and is rarely met

where there is plausible evidence to support a verdict." Id.

Because King asserts that the lower court unreasonably

applied the sufficiency standard as set forth in Jackson -- making

no arguments that the state court rulings are contrary to Supreme

Court precedent -- our analysis is governed by the provisions of

§ 2254(d)(1). See Foxworth v. St. Amand, 570 F.3d 414, 424-25 (1st

Cir. 2009) (providing "[t]his is an 'unreasonable application'

case; no colorable arguments are made suggesting that the relevant

state-court rulings are directly 'contrary to' clearly established

Supreme Court precedent"). To show an unreasonable application of

federal law, "[s]ome increment of incorrectness beyond error is

required." Jewett v. Brady, 634 F.3d 67, 74 (1st Cir. 2011)

(quoting McCambridge, 303 F.3d at 36) (internal quotation marks

omitted); see also Williams v. Taylor, 529 U.S. 362, 410 (2000)

(cautioning that "an unreasonable application of federal law is

different from an incorrect application of federal law"); Kibbe v.

DuBois, 269 F.3d 26, 36 (1st Cir. 2001) ("[A] federal court cannot

grant habeas relief simply because it disagrees with or finds error

in the state court's application of federal law.").

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 The SJC, Massachusetts' highest court, denied King's

ALOFAR. We therefore must "look through to the last reasoned

decision" in evaluating the basis for the state court's holding.

Clements, 592 F.3d at 52 (quoting Malone v. Clarke, 536 F.3d 54, 63

n.6 (1st Cir. 2008) (internal quotation marks omitted)).

Accordingly, we turn to the MAC's decision in King, 866 N.E.2d 938,

to assess King's sufficiency of the evidence claims, remaining ever

alert to the fact that we review each of his two claims with

reference to the specific elements of the contested state law

offense. See DeBurgo, 587 F.3d at 68-69.

B. Sufficiency of the Evidence

1. Armed Robbery

King argues the MAC improperly affirmed his conviction

for armed robbery because the evidence at trial showed he at most

made a verbal threat during the robbery, which he contends was not

sufficient on its own to satisfy the elements of armed robbery

(specifically, possession of a weapon) under Massachusetts law, and

that no rational juror could have found otherwise. For the

following reasons, we hold that the MAC's determination that a

rational juror could have found King possessed a weapon at the time

of the robbery was not objectively unreasonable. We first address

the underlying state law at issue, i.e., what are the elements of

armed robbery that a jury must find in order to convict a

defendant? We then turn to the MAC's determination that the

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government presented sufficient evidence at trial to allow a

rational juror to infer the existence of the essential elements of

armed robbery.

a. State Law: Requisites to an Armed Robbery

Massachusetts law defines armed robbery as when a person,

"armed with a dangerous weapon, assaults another and robs, steals

or takes from his person money or other property which may be the

subject of larceny." Mass. Gen. Laws ch. 265, § 17. Thus, for an

individual to be convicted of armed robbery under Massachusetts

law, the jury must conclude that (1) the individual committed a

robbery, and (2) commissioned the crime while in possession of a

weapon.6 See Commonwealth v. Tevlin, 741 N.E.2d 827, 833 (Mass.

2001). Notably, in analyzing the elements of armed robbery

pursuant to the statute, Massachusetts courts have not required a

showing that a weapon have been fired, employed to effectuate the

robbery, used in a threatening manner, or even generally or openly

displayed during the crime for a defendant to be convicted of armed

robbery.7

6
King only disputes whether the government satisfied its
evidentiary burden of showing he was armed at the time of the
robbery; he does not dispute his involvement in the underlying
robbery itself.
7
See, e.g., Commonwealth v. Chapman, 186 N.E.2d 818, 821 (Mass.
1962) (finding no error where judge, in reading armed robbery
charge to jury, provided that a finding of guilt did not require a
showing that the alleged weapon "played any part -- direct part in
this operation"); Commonwealth v. Nickologines, 76 N.E.2d 649, 651
(Mass. 1948) ("It is not necessary to show the use of a dangerous

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 In addition to not requiring an actual showing of a gun's

presence at the scene of the robbery, Massachusetts law permits a

jury to take a party "at his word" and rely on a defendant's

statement made during the commission of a crime that he is armed

with a weapon to be a highly probative factor towards establishing

possession -- even if no evidence shows a defendant used or

displayed a weapon during the offense. Commonwealth v. Delgado,

326 N.E.2d 716, 718-19 (Mass. 1975) (stating that where defendant

warned robbery victim that he "would and could shoot . . . thus

impliedly informing the victim of the presence and possession of a

gun . . . the jury could reasonably conclude that the defendant

should be taken at his word," even where "there was no direct

evidence of a gun, no gun was seen by the store manager, and no gun

was found on the defendant's person or in the area when the

defendant was apprehended").8

weapon in proving the offence of robbery while armed. The gist of
the offence is being armed, not the use of the weapon.");
Commonwealth v. Simpson, 766 N.E.2d 84, 86 (Mass. App. Ct. 2002)
(noting that armed robbery under Massachusetts law "may be made out
by proof that the defendant was in possession of a weapon in the
course of a robbery but did not display or use it"); Commonwealth
v. Goldman, 367 N.E.2d 1181, 1182 (Mass. App. Ct. 1977) (stating
that Mass. Gen. Laws ch. 265, § 17 does not require that a victim
be aware of an assailant's possession of a weapon for the latter to
be guilty of armed robbery).
8
One post-Delgado decision that has challenged the case's holding
is Commonwealth v. Howard, 436 N.E.2d 1211 (Mass. 1982). In this
case, the defendant approached his victim at night with his right
hand in his jacket and said, "[w]alk straight, look down, and don't
try anything foolish or I'll pull the trigger." Id. (internal
quotation marks omitted). The Howard court held that "where a

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 Furthermore, even if no evidence actually establishes

that a gun was on a defendant at the time of the robbery, if a

defendant feigns or asserts he is armed at the time of the crime

and, between its occurrence and his apprehension, has a subsequent

opportunity to dispose of the weapon, Massachusetts courts have

held that a rational juror may reasonably conclude that a defendant

was armed during the robbery beyond a reasonable doubt. See

Commonwealth v. Samuel Jackson, 647 N.E.2d 401, 406 (Mass. 1995)

(holding that, where defendant's conduct and words at time of crime

-- specifically, defendant's hand in jacket creating suggestive

weapon-like appearance while stating, "I'll blow you away" --

suggested he was armed, and where defendant had opportunity between

the crime and the arrest to dispose of any such weapon, "there is

robber had no instrumentality at all [during the time of the
crime], although he said he had a gun, a conviction of armed
robbery is not warranted." Id. at 1212.

Subsequent courts comparing Delgado and Howard have noted a
significant distinction between the facts of each case: although
both cases concern a defendant who represented having a gun in his
possession at the time of a crime, the defendant in Howard was
arrested during the robbery, at which time police were able to
confirm that the defendant was not in fact armed during the crime;
in contrast, the defendant in Delgado had an opportunity between
the robbery itself and the subsequent arrest to dispose of the
alleged weapon. See Commonwealth v. Samuel Jackson, 647 N.E.2d
401, 406 (Mass. 1995) (comparing and reconciling the Delgado and
Howard holdings); see also Howard, 436 N.E.2d at 1212 (stating
that, because there was no opportunity for the defendant to dispose
of a weapon between the crime and the police's sudden arrival and
arrest, there was an "absence of any basis to infer that the
defendant may have had a gun[, which] distinguishes this case from
[Delgado]").

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no reason [for a juror] not to take an assailant at his word" and

to conclude he was armed during the robbery); cf. Howard, 436

N.E.2d at 1212 (providing that where defendant's conduct and words

at time of crime suggested he was armed, but where defendant had no

opportunity between crime and arrest to dispose of weapon, and

where police immediately were able to confirm defendant was not in

fact armed during the crime, "[t]he evidence would not have

warranted the jury in finding, on the basis of a reasonable

inference and beyond a reasonable doubt . . . that the defendant

had a gun").

Thus, in sum, under Massachusetts law, a juror may -- but

is not required to -- rationally conclude that a defendant was

armed during a robbery -- even if no evidence directly shows the

defendant in fact was armed -- if (1) a defendant represents

(through words and/or conduct)9 that he is armed at the time of the

9
Conduct that has been deemed sufficient for purposes of
supporting an armed robbery conviction or similar offense includes
the brandishing of what reasonably appears to be a weapon during
the crime, or creating the suggestive appearance of a gun on one's
person. See, e.g., Commonwealth v. Powell, 742 N.E.2d 1061, 1063
(Mass. 2001) (affirming conviction for armed robbery where victim
observed an object under defendant's jacket, which defendant
repeatedly touched, even though protruding tip of object made it
unclear as to whether it was in fact a weapon); Commonwealth v.
Henson, 259 N.E.2d 769, 772-74 (Mass. 1970) (upholding conviction
for aggravated assault where defendant brandished a firearm, even
though firearm was loaded with blank cartridges and was known by
defendant to effectively be unloaded); Commonwealth v. Colon, 756
N.E.2d 615, 618-19 (Mass. App. Ct. 2001) (evidence supported
conviction for armed robbery where defendant placed his hand in
pocket on a shiny object that the victim believed was a weapon
because it appeared to be made of chrome or metal); Commonwealth v.

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crime, or (2) makes such a representation and has an opportunity

following the commission of the crime to dispose of the alleged

weapon before his subsequent arrest. Having reviewed the

underlying state law at issue, we now turn to the state court's

determination that a rational juror could have found King liable of

armed robbery to determine whether its holding constituted an

unreasonable application of Jackson because, based on the evidence

presented at trial -- which we review through government-favored

lenses -- no rational trier of fact could have found the essential

elements of armed robbery beyond a reasonable doubt. For the

following reasons, we hold that the MAC's decision did not

constitute an unreasonable application of federal law.

b. State Court Decision: No Unreasonable
Application of Federal Law

The MAC correctly articulated Massachusetts law as to

armed robbery, providing that convictions for armed robbery "are

not limited to instances in which a defendant actually uses or

displays the weapon." King, 866 N.E.2d at 941. Further, the MAC

accurately noted the highly probative nature under Massachusetts

Johnson, 543 N.E.2d 22, 23-24 (Mass. App. Ct. 1989) (finding that
a hairbrush in a pocket, creating the reasonable appearance of a
weapon, supported a conviction of armed assault with intent to
rob); Commonwealth v. Garafolo, 499 N.E.2d 839, 841 (Mass. App. Ct.
1986) (upholding conviction for armed assault with intent to rob
where evidence showed defendant assaulted victim with a toy gun);
Commonwealth v. Nicholson, 477 N.E.2d 1038, 1044 (Mass. App. Ct.
1985) (noting that armed robbery may be committed with a "fake
plastic gun" if "it reasonably appeared capable of inflicting
bodily harm").

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law of a defendant's statement that he is armed during a robbery

for purposes of assessing the rationality of a jury's findings.

See id. at 942-43. It also acknowledged some tension between

Delgado and Howard, but clarified their holdings pursuant to

established state law:

Reading Delgado and Howard together, however,
the Commonwealth may obtain a verdict by proof
of such a statement together with evidence
that the defendant had an opportunity to
dispose of the weapon prior to his arrest. It
is that latter evidence [of an opportunity to
dispose of the weapon] that permits the jury
to draw the inference that the defendant
should be taken at his word. . . . Such a case
is distinguished from a case in which the
defendant is apprehended at the scene and
found to have no weapon. In such a situation,
there is no basis on which a juror could
rationally conclude that the defendant was
armed.

Id. (internal citation omitted).

Applying governing Massachusetts law to the record, and

viewing all evidence in a light most favorable to the government,

the MAC held that a reasonable juror could have found King had a

gun at the time of the robbery. Id. at 943. Indeed, in reviewing

the facts, the MAC specifically noted the defendant's warning to

the victim, "I'm going to blow a hole in your head if you get up

and move," id. at 941, and the one day lapse of time between the

robbery and the defendant's arrest, id., as evidence supporting the

jury's finding. See id. at 943 ("[W]e conclude that the jury's

inference that the defendant actually carried a dangerous weapon at

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the time of the robbery was permissible. The evidence supported

findings that the defendant threatened to shoot the victim, and

that he was arrested a day later without a weapon. Thus, the jury

could, if they wished, find that he in fact had a weapon when he

made the threat.").

King attempts to counter such circumstantial evidence by

arguing that a conviction for armed robbery under Massachusetts law

cannot stand on a defendant's verbal statement alone; stated

differently, where no evidence established that a defendant made

"any gesture or behavior to indicate the presence of a weapon," or

"where the defendant's hands could not be seen" during the crime,

and "where the arrest of the petitioner did not take place at the

scene of the offense," King contends that a "conviction for armed

robbery is not based on legally sufficient evidence and violates

the protections of the Due Process Clause of the Fourteenth

Amendment." As our prior review of governing state law on armed

robbery shows, this is not a correct articulation of Massachusetts

law.

Without belaboring the point, Massachusetts courts have

held that a conviction for armed robbery may stand, even if a

defendant does not display a weapon during the robbery or make a

gesture indicating possession of the same, provided that other

evidence creates a reasonable inference that a defendant was armed

at the time of the crime. See, e.g., Samuel Jackson, 647 N.E.2d at

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406 (upholding armed robbery conviction where defendant never

displayed or used a weapon during commission of crime; holding that

a jury could reasonably determine defendant was armed based on his

"I'll blow you away" statement, coupled with his subsequent

"opportunity to dispose of the gun before he was arrested"); see

also Delgado, 326 N.E.2d at 719 (noting that no gesture is per se

required to permit an armed robbery conviction to stand because a

defendant's warning statement may be "informational" and "take the

place of a threatening movement or gesture and complete the

assault").

Although King heavily rests his no-gesture-no-weapon

position upon the crutch of Howard's holding, Howard offers King

little support because in that case, there was no room for any

inference but that the defendant was not armed at the time of the

robbery, as the defendant was apprehended at the scene of the crime

with no weapon on his person. See 436 N.E.2d at 1212. Here, the

established facts do not require such a finding, as there was a day

lapse between the crime and King's arrest.

It is where indisputable evidence ends that the role of

the fact finder truly begins; the question of whether King

possessed a weapon at the time of the robbery was a question best

left to the jury's jurisdiction. In light of governing

Massachusetts law and the established record, we cannot say the

MAC's determination that a rational juror could have inferred King

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was armed at the time of the robbery constituted an "unreasonable

application" of Jackson. See DeBurgo, 587 F.3d at 69 ("[G]iven the

sufficiently suggestive circumstantial evidence presented at trial,

we are satisfied that the [state court's] analysis of the

sufficiency of the evidence was not an unreasonable application of

the Supreme Court's standard announced in Jackson."); see also

Hurtado, 245 F.3d at 18-19 (noting that "[w]here it is a matter of

what inferences may be drawn" by the jury, if "the argument over

the correctness of the state court's ultimate conclusion is one of

degree calling for a choice between credible (although mutually

opposed) views, the habeas inquiry on objective unreasonableness

ends").

2. Intimidation of a Witness

King also contests the MAC's determination that there was

sufficient evidence to support his conviction for witness

intimidation on two grounds: (1) the witness intimidation statute

is limited to those witnesses who are in the active process of

attempting to communicate with the police, or who have expressed a

present intent to do so; that is, it does not apply to future

communications; and (2) King's warning that he did not want to see

the victim on the local television news was solely intended to

discourage Jacques from describing the transpired events to the

media; it did not qualify as an interference with the "furnishing

[of] information to a criminal investigator" because news media are

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not included within the statute's definition of a "criminal

investigator." We hold that the MAC's conclusion that a rational

juror could have inferred from King's statement that he feared

Jacques might report the robbery and thus threatened him in order

to prevent any future communications about the crime, particularly

to investigating authorities, was not objectively unreasonable.

a. State Law: How to Intimidate a Witness (and
Not Get Away With It)

Under governing Massachusetts law at the time of the

robbery,10 an individual could be guilty of intimidating a witness

through two means: (1) "directly or indirectly, willfully"

interfering "with any witness or juror in any stage of a trial,

grand jury or other criminal proceeding;" or (2) "directly or

indirectly, willfully" interfering "with any person furnishing

information to a criminal investigator relating to a violation of

a criminal statute of the commonwealth." Mass. Gen. Laws ch. 268,

§ 13B, as amended by St. 1970, ch. 177. Additionally, the statute

defined a criminal investigator as "an individual or a group of

individuals lawfully authorized by a department or agency of the

commonwealth or any political subdivision thereof to conduct, or

engage in, an investigation of, or prosecution for, a violation of

the laws of the commonwealth in the course of his official duties."

10
In 2006, the Massachusetts legislature revised section 13B of
Mass. Gen. Laws ch. 268. However, according to the Appeals Court,
the amendments did not substantively alter the meaning of the prior
statute for purposes of our review. King, 866 N.E.2d at 944 n.5.

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Id. Because King's statement was made during the armed robbery

itself, before the start of any pre-trial or trial proceedings, the

government pursued a conviction under the statute's second

definition of intimidation, i.e., "furnishing information" to an

investigator.

Massachusetts courts applying the pre-2006 amendment

version of the witness intimidation statute have recognized that

its purpose is to "deter[] interference with future communication

of information.'" Commonwealth v. Burt, 663 N.E.2d 271, 274 (Mass.

App. Ct. 1996) (quoting United States v. San Martin, 515 F.2d 317,

320 (5th Cir. 1975) (internal quotation mark omitted)); see also

Commonwealth v. McCreary, 702 N.E.2d 37, 39 (Mass. App. Ct. 1998)

(providing that the statute is intended "to protect witnesses from

being bullied or harried so that they do not become reluctant to

testify or to give truthful evidence in investigatory or judicial

proceedings. The larger purpose is to prevent interference with

the administration of justice"). Additionally, Massachusetts

courts have noted that the legislature created "a somewhat lower

threshold of purposeful activity" for what may suffice to

constitute witness intimidation. Commonwealth v. Belle Isle, 694

N.E.2d 5, 8 (Mass. App. Ct. 1998) (internal quotation mark omitted)

(noting that the statute's use of the word "endeavor" signified the

legislature's intent "to punish any wilful conduct that amounted to

an effort to interfere with a potential witness" (emphasis added)).

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Lastly, the statute casts a broad net, sweeping in intimidating

acts that occurred before the commencement of any formal criminal

proceedings, Belle Isle, 694 N.E.2d at 7-8, as well as instances in

which a witness did not immediately report to a criminal

investigator, Burt, 663 N.E.2d at 274.

Thus, pursuant to Massachusetts law, a juror assessing a

defendant's alleged intimidation of a witness should consider the

complete context of events -- i.e., the potential purpose of the

defendant's actions towards the witness, which may be assessed by

evaluating the "place, time, and circumstances" surrounding the

underlying acts, Commonwealth v. Robinson, 825 N.E.2d 1021, 1028-29

(Mass. 2005) (quoting McCreary, 702 N.E.2d at 39) (internal

quotation marks omitted) -- bearing in mind that there is a

"somewhat lower threshold" for what may rise to an intimidatory

act, and further, that the statute's scope expands beyond the trial

stage and includes a witness's future statements to police.

Having laid the applicable legal foundation, we now

address the MAC's holding that a rational juror could have found

King liable of witness intimidation to assess whether the evidence,

reviewed drawing all inferences in the government's favor, was

sufficient to support the jury's verdict. We hold that it was, and

that the MAC's determination was not an unreasonable application of

Jackson's sufficiency standard.

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 b. State Court Decision: Sufficiency of the
Witness Intimidation Evidence

The MAC correctly articulated Massachusetts law on

witness intimidation, stating that pursuant to the statute, "[a]

fact finder may evaluate the circumstances in which the statement

was made, including its timing, to determine whether the defendant

in fact intended to intimidate the victim"; that "[a] criminal

investigation need not have commenced" for the statute to be

applicable; and that a victim need not "be furnishing information

on the day that the intimidating action [was] taken or statement

made" for the statute's provisions to be triggered. King, 866

N.E.2d at 944-45. The MAC noted that the determination of whether

a statement constitutes a threat against a witness must be made by

considering a statement's underlying "purpose of 'deterring

interference with future communication of information [by a

witness].'" Id. at 945 (quoting Burt, 663 N.E.2d at 278). On

reviewing and applying the governing law to the facts, and

examining all evidence in a light most favorable to the government,

the MAC held that a rational juror could "reasonably conclude from

the surrounding circumstances that it was likely that the victim

would furnish to an official investigating authority information

pertaining to the crime and that the defendant intended to

discourage such communication." Id.

In its review of the record, the MAC carefully noted the

following factual "surrounding circumstances:" King's specific

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statement that "[i]f he saw [the victim] on 22 News [a Springfield

television program] he was going to come back and kill [him], [his]

whole family, [his] buddy Ben, all of that," id. at 944; that King

made the statement during the robbery; that King's statement

followed his punching of the victim, placing him in a choke hold,

knocking him to the floor, threatening to shoot him, and ordering

him to explain how to open the register; and that prior to making

the threat, King had tried to obtain access to the store's security

surveillance videotapes, which the victim said he could not provide

because the videotapes were kept in the manager's office to which

he did not have access. Id. at 940-41. Given these circumstances,

the MAC held that the "jury could reasonably infer that the

defendant's reference to television news was a shorthand

recognition that a broadcast featuring the victim would most likely

come about if the victim reported the robbery to the police," that

"it was the defendant's purpose to prevent that communication on

the part of the victim," and that "such a finding by the jury was

plainly warranted." Id. at 944. Having reviewed the record

ourselves and the reasons provided by the MAC in its decision, we

hold that it was reasonable for the MAC to conclude that a rational

juror could have determined there was sufficient evidence

supporting a conviction for witness intimidation under

Massachusetts law.

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 King challenges the MAC's decision with two arguments,

both of which dwindle in the face of established precedent and fail

to show an unreasonable decision on the part of the state court.

First, King submits that the witness intimidation statute only

applies to witnesses who are currently trying to communicate with

the police or who have represented an intent, either in the past or

present, to so communicate.11 Thus, because Jacques was not

communicating with the police or attempting to so communicate at

the time of King's threat, no rational juror could have found that

King intimidated a witness pursuant to the terms of section 13B.

King relies on the MAC's previous decision in Belle Isle,

in which the defendant impeded the attacked victim's wife from

contacting authorities after she had expressed her intent to call

the police. 694 N.E.2d 5. King contends that Belle Isle requires

a showing of a targeted witness's present intent at the time of the

defendant's threat to contact investigating authorities in order

for the witness intimidation statute to be triggered.

Belle Isle is not the authoritative haven in which King

should seek refuge; nowhere did the Belle Isle court require a

11
Specifically, King asserts that "the witness intimidation
statute does not protect what individuals may do in theory, namely
that they may choose to speak with police in the future, but
instead implicates what they are presently attempting to do, have
stated an intention to do, or what they have already done. . . .
[A]t no point in the present case did the victim announce his
intention to speak with any criminal investigator, nor did he make
any attempts to contact the police."

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showing of a witness's present intent to communicate with

authorities for the witness intimidation statute to be applicable.

See Belle Isle, 694 N.E.2d at 8 (simply holding that "[a]

reasonable jury could have found that by following [the victim's

wife] from the room when she stated she was going to call the

police, and using force to sever the phone cord from the wall, [the

defendant] forcefully interfered with [her] attempt to furnish

information to the police"). Here, the MAC similarly considered

and rejected King's reliance on Belle Isle, correctly stating that

the decision "was not intended to suggest that an attempt to

communicate to authorities must be underway in order for there to

be a violation of G.L. c. 268, § 13B," King, 866 N.E.2d at 945, and

accurately noting that it had rejected such a proposition

previously in Burt, 663 N.E.2d at 274 (rejecting defendant's

argument that because the attacked witness "was not furnishing

information to the police on the day she allegedly was intimidated,

the statute [was] not satisfied"). King, 866 N.E.2d at 945.

We agree with the MAC's well-reasoned explanation on this

issue: King's proposed interpretation effectively shoehorns the

witness intimidation statute's language into the narrow confines of

a witness's presently ongoing or expressed attempts to communicate

to a criminal investigator; the statute is not so constricting.

King, 866 N.E.2d at 945 (stating that the statute's underlying

purpose is to "deter[] interference with future communication of

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information. . . . A criminal investigation need not have

commenced[, n]or must the victim be furnishing information on the

day that the intimidating action is taken or statement made"

(internal citation and quotation marks omitted)). Having noted and

corrected King's effort to hammer the statutory language peg into

a narrower present-or-past-communications-only hole, and having

reviewed relevant precedent and the evidentiary record, it was

entirely reasonable for the MAC to conclude that a rational juror

could have found that King feared Jacques, once certain that King

had left the store, would report the robbery, and that King made

the threat to discourage such from occurring.

Turning to King's second argument, King contends that his

threatening statement was limited to preventing the victim from

reaching out to the news media; because he did not try to impede

Jacques from talking to criminal investigators, the witness

intimidation statute is inapplicable.

In brief, case law makes clear that a defendant's threat

does not have to expressly reference the police or other form of

criminal investigator in order to trigger the prohibitions of the

witness intimidation statute. See Burt, 663 N.E.2d at 273 (finding

that defendant's statements, in which he questioned the victim

concerning her children and revealed personal details as to them,

"were sufficient to constitute an 'endeavor' to influence [the

victim] by means of 'threats' or 'intimidation'"); McCreary, 702

-28-
N.E.2d at 39 ("[a]ssuming intimidation by the defendant . . . for

which there was ample evidence," where defendant moved close to

victim and threatened to kick the victim and/or his son in the

head); see also Commonwealth v. Gordon, 694 N.E.2d 2, 4-5 (Mass.

App. Ct. 1998) (finding that evidence was sufficient to show

intimidation of a juror where defendant stood close to juror and

stated he recognized her, had been watching her, asked personal

details concerning her life, and suggested she watch a movie that

was extremely violent).12

12
Although King cites to both Belle Isle and Commonwealth v.
Belete, 640 N.E.2d 511 (Mass. App. Ct. 1994) for authoritative
support for the principle that a defendant's threat must be
directed against a victim's direct "furnishing [of] information" to
the police, neither serves as the nail on which he may hang his
case. For instance, in Belle Isle, the defendant violently
attacked his brother-in-law in the presence of family members and
severed the phone cord to prevent the victim's wife from contacting
the police after she had expressed her intent to call them. 694
N.E.2d at 8. At no point did the defendant expressly order or
threaten the victim against calling the police; however, the state
court determined that the evidence was sufficient for the jury to
infer that defendant's display of force in cutting the phone wire
was defendant's manner of deterring the victim from contacting the
police.

Likewise here, defendant did not expressly prohibit the victim
from contacting the police; instead, his various displays of force
-- including punching the victim, knocking him to the ground,
putting him in a choke hold, demanding to see the surveillance
tapes, taking the victim's only form of transportation (his
bicycle) from the store -- and his violent admonition against
contacting the media served as telling circumstantial evidence, of
which the MAC took careful note, suggesting that defendant intended
to prevent the victim from reaching out to criminal investigators
concerning the robbery. King, 866 N.E.2d at 944-45.

Belete similarly offers little support to King, as the case
specifically addressed whether a witness's interpreter fell within

-29-
 Moreover, the specific terms of the statute do not

require that the threat be so limited in its scope; rather, it

simply requires that the individual's statement "directly or

indirectly" interfere with or hinder a criminal investigation. See

Mass. Gen. Laws ch. 268, § 13B(1). Indeed, the MAC carefully noted

the statute's broader sweep, providing that the statute "does not

require that a defendant specifically articulate a threat not to

speak to the police or other criminal investigator" for a defendant

to be held liable of witness intimidation. King, 866 N.E.2d at

944.

Reviewing the evidence and "surrounding circumstances" in

the light most favorable to the prosecution, there was sufficient

evidence for a rational juror to conclude that King's statement --

made after he had assaulted, beaten, and threatened to shoot the

victim, requested access to security tapes, and taken the victim's

bicycle -- was made with the intent to prevent the victim from

future dissemination of information or evidence concerning the

crime to relevant authorities. For these reasons, the MAC's

decision does not constitute an unreasonable application of

Jackson.

the parameters of the witness intimidation statute; the state court
held that such a party did not because "[i]nterpreters are not
witnesses, nor do they normally possess any knowledge of a fact or
occurrence sufficient to testify in a case." 640 N.E.2d at 512.
The underlying issue in Belete is thus distinguishable from King's
argument that a certain level of specificity or detail is required
in an intimidating act to trigger the prohibitions of the statute.

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 III. Conclusion

For the foregoing reasons, the MAC's decision in this

case was not unreasonable under AEDPA. We thus affirm the district

court's decision to deny King a writ of habeas corpus.

Affirmed.

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