Morgan v. Dickhaut

United States Court of Appeals
For the First Circuit

No. 10-1208

DAVID MORGAN,

Petitioner - Appellant,

v.

THOMAS DICKHAUT, Superintendent,
Souza Baranowski Correctional Center,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael Ponsor, U.S. District Judge]

Before

Torruella, Lipez, and Howard,
Circuit Judges.

Catherine J. Hinton, with whom Rankin & Sultan was on brief,
for appellant.
Amy L. Karangekis, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief, for appellee.

April 27, 2012
 LIPEZ, Circuit Judge. In this appeal arising from a 28

U.S.C. § 2254 petition, David Morgan challenges his Massachusetts

state court conviction of first degree murder. Morgan argues that

the district court erred in dismissing his petition because the

Massachusetts Supreme Judicial Court ("SJC") applied a beyond a

reasonable doubt standard contrary to that articulated by the

Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979), in

evaluating his claim that there was insufficient evidence presented

at trial to support his conviction. Alternatively, Morgan argues

that, even if the SJC applied the correct standard, it did so

unreasonably, because the evidence presented against him was

insufficient to establish his guilt beyond a reasonable doubt. We

reject these arguments and affirm the district court's dismissal of

Morgan's petition.

I.

A. Factual Background

Morgan does not dispute the SJC's account of the facts of

this case, which we set forth almost in full below. We do so

because the import of Morgan's sufficiency argument, which presents

a closer question than some such arguments, cannot be understood

without a full statement of the facts. Before doing so, however,

we offer a brief introduction to the circumstances of the case and

the individuals involved for clarity's sake.

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 Morgan and Wayne Rowe, the victim, as well as many of the

witnesses in this case, were involved in the marijuana trade in and

around Springfield, Massachusetts in early 1999. After the theft

of marijuana and money from his apartment, Morgan suspected that

Rowe was responsible and told several individuals of his suspicion

and his intent to retaliate. The prosecution argued that this

burglary provided a motive for the crime and offered several

witnesses who implicated Morgan in the murder. Errol Lodge, a

sometime customer of Morgan and Rowe, testified that he saw Rowe

get into a car with Morgan and an associate, Floyd Johnson, on the

day that Rowe disappeared. Richard McLean, a local business owner

and an acquaintance of both Morgan and Rowe, testified that Morgan

stated his intent to kill Rowe two days before Rowe's

disappearance, and that Morgan made statements after the killing

suggesting that he was responsible. Additionally, the prosecution

offered several other witnesses, including Rowe's wife, who

testified that Morgan made general threats to harm the person who

broke into his apartment and specific threats to harm Rowe.

With that brief introduction, we turn to the SJC's

recitation of the facts.

The victim was last seen in the late
afternoon of March 3, 1999, getting into a
four-door green sedan with the defendant[,
David Morgan,] and Floyd Johnson, who was
driving. He was not seen again until his body
was recovered in Agawam, at the edge of the
Connecticut River, on April 18, 1999. When
his body was found the victim was wearing some

-3-
of the same clothing he was wearing on March
3. He had suffered a gunshot wound to the
head at close range. The medical examiner was
able to recover the projectile, a .38 caliber
metal jacket that could have been fired from a
.357 Magnum or specific types of nine
millimeter weapons.

In the days before his disappearance
and murder, the victim was living in the
basement of a residence in Springfield apart
from his wife and children. The victim's wife
testified that, on March 1, 2, and 3, 1999,
after work, she picked up the victim and drove
him to the defendant's apartment so that the
victim could obtain marijuana to sell. The
wife would drop the victim off at his
residence each evening. On March 1, 1999,
when the victim's wife took him to the
defendant's apartment, the defendant
approached the victim, who was sitting in the
vehicle's passenger seat, and told him that
his apartment had been broken into and that
whoever had anything to do with it was "going
to feel it."

On March 3, after his wife had brought
the victim to the defendant's apartment, she
dropped him off at his residence at
approximately 5 P.M. Sometime after that,
Errol Lodge wanted to purchase marijuana from
the victim. The victim invited Lodge to come
to his residence and wait in the driveway for
a delivery of marijuana. Lodge saw the
defendant and Johnson pull up in a green
sedan, and he saw the victim speak to the men
and then get into the back seat of the
vehicle, which sped away. Lodge waited for
the victim for a while but left when he did
not return.

In statements to police, the defendant
did not deny that Johnson drove him in a green
sedan to the victim's house between
approximately 4 P.M. and 5 P.M. that
afternoon. The defendant claimed that he and
Johnson went there to pick up money the victim
owed and that, once they did so, the pair

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left. The defendant also told police that the
victim could not be trusted because he would
"rob you."

At about 8:30 P.M. the evening of March
3, the victim's wife tried contacting him by
his pager and received no response, which was
uncharacteristic. She tried several times
that evening and in the days following, still
receiving no response. She went to the
victim's residence, and also searched for the
victim for several days, before reporting him
as a missing person on March 8. The victim's
cellular telephone records showed no outgoing
calls after March 3.

No physical evidence tied the defendant
to the victim's murder. The gun was never
found, and a search of the green sedan Johnson
was driving, which was routinely cleaned,
turned up no fingerprints that matched the
victim's. A test of the vehicle yielded the
possible presence of human blood on the rear
exterior door handle on the driver's side.
The defendant's conduct and statements he made
to others both before and after the victim's
disappearance implicated him in the murder.

1. Errol Lodge. After the break-in of
his apartment, the defendant told Lodge what
had happened and that he knew who did it;
pulling a gun from his waist, he said that
Lodge "will hear about the person." On March
3, five days before the wife reported the
victim missing, the defendant telephoned Lodge
at home and, uncharacteristically, kept him on
the line for two hours. In the course of the
conversation, which was interrupted with the
defendant's putting Lodge on hold and
instructing him not to hang up, the defendant
told Lodge that he had dropped the victim off
"somewhere" and "cannot find [the victim]";
the victim's "wife reported him missing"; and
"people said I killed him."

When the defendant and Lodge were
arrested in June, 1999, on charges of selling
marijuana, the defendant told Lodge, "[y]ou

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cannot become an informant. You only charged
for weed and weed is a misdemeanor. I will
get you out. Don't tell them nothing. Don't
tell them nothing." In addition, the
defendant gave money to Lodge's girl friend so
she could move and paid for an attorney who
visited Lodge in jail three or four times.
After Lodge's arrest, the defendant kept in
contact with Lodge's girl friend, something he
had not done before. The telephone calls
between the defendant and Lodge's girl friend
continued until September, 1999. The
defendant was supposed to meet the girl friend
to talk because he knew Lodge was talking to
police officials and was going to testify
against him. The defendant never showed up.

2. The victim's wife. At some point
during her search for the victim, his wife
confronted the defendant, who told her that he
did go by the victim's house on March 3, but
that the victim did not get into the car with
him. After speaking to more individuals, the
wife later told the defendant that she knew he
lied because she had a witness who saw the
victim getting into the car with him. The
defendant started yelling at her and told her
to bring the witness to him; when the wife
said that she was going to the police, the
defendant stated, "[g]o to the cops because
you can't prove nothing anyways."

3. Richard McLean. Richard McLean
testified that, before the victim's murder,
the defendant and Johnson met with him and
showed him a nine millimeter weapon in
Johnson's possession; the defendant also
possessed a gun. The defendant told McLean
that he was going to kill the victim. McLean
told the defendant to forget about it, and the
defendant responded that if no one saw him do
it, there was nothing anyone could do. McLean
testified that the defendant also stated,
"[a]s a matter of fact that mother fucker
gonna be dead in a week anyway."

Two days after the victim disappeared,
the defendant met McLean and tried to buy a

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gun McLean was holding for the victim. McLean
asked the defendant why he needed a gun, given
that he had seen the defendant's gun. The
defendant stated that he needed a "clean gun"
because people associated with the victim were
after him. When McLean resisted giving him
the victim's gun, the defendant stated,
"[w]ell, you don't have to worry about [the
victim], because [you will] never see [him]
again. . . . Trust me. You will never see
[the victim] again." Sometime later, the
defendant told McLean that the gun that was
used to kill the victim was a nine millimeter.
In September, 1999, McLean had conversations
with the defendant on at least two occasions.
In the first conversation, the defendant told
McLean that Lodge was going to testify against
him for the victim's murder, because Lodge
witnessed the victim's departure with the
defendant and Johnson the day the victim
disappeared. McLean testified that he stated,
"[y]ou guys pick up somebody to kill him and
somebody there seen, and you guys still do it?
You guys got to be stupid." McLean testified
that the defendant did not say anything in
response; instead, he laughed. McLean also
testified that, in the second conversation,
the defendant told him that he was feeling
"fucked up" because he learned that the victim
was not the one who had broken into his
apartment and that the victim died for the
wrong reason.

4. Warren Smith. Warren Smith
testified that he had seen the defendant with
a .45 caliber gun, a .357 Magnum, and a nine
millimeter German Luger. He also testified
that, during a discussion between Smith, the
victim, and the defendant concerning marijuana
the defendant allegedly owed the victim, the
defendant waved a .45 caliber gun around and
stated that if the victim or anybody else
tried to rob him, he would kill them. At some
point the defendant also bragged to Smith that
he shot at an individual who owed the
defendant money for marijuana.

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 5. Jailhouse witnesses. The
Commonwealth also called two witnesses whom
the defendant met while he was incarcerated.
One testified that the defendant told him that
he was "going down" for a murder but he was
going to "bring it to trial and try to beat
it."

. . .

The defendant did not testify at trial. His
strategy was to attack the Commonwealth's
case, including impeaching the credibility of
the Commonwealth's witnesses through cross-
examination. He also called three witnesses.
The first was the defendant's good friend and
landlord, a woman who owned a four-door green
Acura automobile that she let the defendant
drive. She stated that the defendant was not
that upset about the break-in of his
apartment. The second witness had been doing
carpentry work at the defendant's apartment in
March, 1999, and had told police that the
defendant was home for the critical time
period when the victim disappeared. However,
at trial, he testified that he was not sure of
the exact date he was at the defendant's
apartment. The third witness was a teenaged
boy. The victim was staying in the basement
of his house. He saw a dark green car on what
he believed was the day the victim
disappeared, but when police showed him both
Johnson's girl friend's and the defendant's
landlord's vehicles, he could not positively
identify either one.

Commonwealth v. Morgan, 868 N.E.2d 99, 103-06 (Mass. 2007) ("Morgan

I") (footnotes omitted).

To summarize, the prosecution presented no physical

evidence linking Morgan to the crime. However, there was extensive

circumstantial evidence tending to show Morgan's guilt. This

evidence included: 1) Morgan's general threats to kill the person

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who burglarized his apartment, 2) Morgan's specific threats to kill

Rowe, 3) testimony that the last time Rowe was seen alive he was

getting into a car with Morgan and Johnson, 4) testimony that

Morgan knew Rowe was missing and identified the murder weapon as a

9 millimeter gun before this information was widely known, 5)

testimony that while both Morgan and Johnson had weapons prior to

the murder, Morgan needed a "clean" gun after the killing, and 6)

numerous statements by Morgan indicating a consciousness of guilt.

B. Procedural History

Morgan, along with Floyd Johnson, was indicted for murder

and conspiracy to commit murder. The trial judge granted an

unopposed motion to sever Johnson's trial from Morgan's during the

jury selection process, and the Commonwealth eventually entered a

nolle prosequi of Johnson's murder indictment.1 Morgan proceeded

to a jury trial. Significantly, the prosecution declined at trial

to advance a theory of joint venture and instead insisted that

Morgan was the principal, meaning that he himself pulled the

trigger and killed Rowe.2 At the close of the Commonwealth's case,

1
A third individual was also indicted with Morgan and
Johnson, but his trial was similarly severed. This individual died
prior to his trial, and evidence regarding him was deemed largely
inadmissible at Morgan's trial. Accordingly, he plays no role in
this appeal.
2
The district court noted that the facts of this case "make
the Commonwealth's decision to forego an alternative joint venture
theory inexplicable." Morgan v. Dickhaut, 677 F. Supp. 2d 424, 439
n.10 (D. Mass. 2010) ("Morgan II"). That prosecutorial decision
gives rise to the sufficiency issue addressed here.

-9-
Morgan moved for a finding of not guilty, arguing that the evidence

was insufficient to permit the jury to return a guilty verdict.

The motion was denied. The jury convicted Morgan of deliberately

premeditated murder in the first degree.

Morgan appealed. While that appeal was pending, he filed

a motion for a new trial in 2004 that was denied by the trial

judge. Morgan appealed that denial, and his two appeals were

consolidated.

In 2007, the SJC affirmed Morgan's conviction and the

denial of his motion for a new trial. Morgan then filed a habeas

petition pursuant to 18 U.S.C. § 2254 with the United States

District Court for the District of Massachusetts, seeking relief on

four grounds: 1) the Commonwealth's evidence was insufficient to

support his conviction, 2) he received ineffective assistance of

counsel, 3) there was significant prosecutorial misconduct during

his trial, and 4) he was denied his right to cross-examine

witnesses. In a lengthy and carefully reasoned decision, the

district court found Morgan's arguments unavailing and dismissed

his petition. However, the district court granted a certificate of

appealability as to Morgan's claim that the evidence was

insufficient to support his conviction on a theory of principal

-10-
liability.3 Morgan's application to this court for an expanded

certificate of appealability was denied.

Morgan raises two related arguments concerning the

sufficiency of the evidence supporting his conviction: 1) in

evaluating his sufficiency of the evidence argument, the SJC

applied a beyond a reasonable doubt standard that was contrary to

the Supreme Court's decision in Jackson, and 2) even if the SJC

identified the correct Jackson standard, the standard was

unreasonably applied. With regard to the latter argument, Morgan

asserts that even if there was sufficient evidence to convict him

under a joint venture theory, the evidence was insufficient to

allow the jury to determine that he, as opposed to Floyd Johnson,

was the principal actor in the murder, i.e., the one who pulled the

trigger.

II.

A. The AEDPA Standard

A district court's decision to deny or grant a habeas

petition under 28 U.S.C. § 2254 is subject to de novo review.

O'Laughlin v. O'Brien, 568 F.3d 287, 298 (1st Cir. 2009). Pursuant

to the Antiterrorism and Effective Death Penalty Act of 1996

3
The district court found the sufficiency of the evidence
issue presented by Morgan's petition to be a close question. In
its conclusion, the district court stated that "[p]etitioner's
extraordinarily powerful memorandum and vigorous arguments have
given the court much food for thought and required a longer time
for consideration, and a lengthier memorandum, than is usual for a
habeas petition." Morgan II, 677 F. Supp. 2d at 445.

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("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), a successful

claim for relief pursuant to § 2254 must show that the challenged

state court adjudication 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), or that the decision "was based on an unreasonable

determination of the facts," id. at § 2254(d)(2). As noted, Morgan

does not challenge the state court's fact-finding. Instead, he

focuses on the "contrary to" and "unreasonable application" prongs

of § 2254(d)(1).

In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme

Court distinguished between the "contrary to" and "unreasonable

application" prongs of the statute. It explained that a state

court decision is "contrary to" established law when it "arrives at

a conclusion opposite to that reached by [the Supreme Court] on a

question of law or if the state court decides a case differently

than [the Supreme Court] has on a set of materially

indistinguishable facts." Id. at 413. In contrast, the Court

stated that "a state-court decision involves an unreasonable

application of this Court's precedent if the state court identifies

the correct governing legal rule from this Court's cases but

unreasonably applies it to the facts of the particular state

prisoner's case." Id. at 407; see also Hurtado v. Tucker, 245 F.3d

7, 15 (1st Cir. 2001) (noting distinction made in Williams).

-12-
 In considering the "unreasonable application" prong of

§ 2254(d)(1), the Supreme Court has emphasized that reasonableness

must be determined according to an objective standard. Williams,

529 U.S. at 409-10. Furthermore, because the statute uses the word

"unreasonable," as opposed to "erroneous" or "incorrect," a state

court's application of federal law must go beyond simple error to

justify issuance of the writ of habeas corpus. Id. at 411. Thus,

"'some increment of incorrectness beyond error is required.'"

O'Laughlin, 568 F.3d at 299 (quoting McCambridge v. Hall, 303 F.3d

24, 36 (1st Cir. 2002)). "The increment need not necessarily be

great, but it must be great enough to make the decision

unreasonable in the independent and objective judgment of the

federal court." Id. Although the concept of unreasonableness is

admittedly "difficult to define," Williams, 529 U.S. at 410, it is

fair to say that "if it is a close question whether the state

decision is in error, then the state decision cannot be an

unreasonable application" of federal law, McCambridge, 303 F.3d at

36.

Thus, as we have explained, "[h]abeas 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." O'Laughlin, 568 F.3d at 299 (internal quotation marks

omitted). We turn next to the constitutional right at issue here.

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B. Jackson's Sufficiency of the Evidence Standard

In Jackson, the Court explained that a habeas court is

not to "ask itself whether it believes that the evidence at the

trial established guilt beyond a reasonable doubt." 443 U.S. at

318-19 (internal quotation marks omitted). Rather, the proper

inquiry 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. In applying the Jackson standard, not only

must all evidence be examined in the light most favorable to the

prosecution, but so must "inferences that may be reasonably drawn

from it." United States v. Andujar, 49 F.3d 16, 20 (1st Cir.

1995). Accordingly, "the reviewing court . . . [must] resolve[]

all credibility issues in favor of the verdict." Id.

Additionally, the reasoning employed by the state court is

irrelevant, and "[t]he question whether the evidence is

constitutionally sufficient is . . . wholly unrelated to the

question of how rationally the verdict was actually reached."

Jackson, 443 U.S. at 319 n.13.

We have previously noted that "[t]he Jackson standard is

as easy to articulate as it is difficult to apply." O'Laughlin,

568 F.3d at 300. However, despite the imprecision inherent in the

term reasonable doubt, we have attempted to describe the level of

certainty necessary to support a criminal conviction. In doing so,

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we have explained that "beyond a reasonable doubt does not require

the exclusion of every other hypothesis; it is enough that all

reasonable doubts are excluded." O'Laughlin, 568 F.3d at 301

(quoting Stewart v. Coalter, 48 F.3d 610, 616 (1st Cir.

1995)(internal quotation marks omitted)). Accordingly, a

conviction may be supported by circumstantial evidence alone. Id.

While "guilt beyond a reasonable doubt cannot be premised on pure

conjecture. . . .[,] 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. (internal quotation marks omitted).

However, there are limits to the probative value of

circumstantial evidence, and "we are loath to stack inference upon

inference in order to uphold the jury's verdict." United States v.

Valerio, 48 F.3d 58, 64 (1st Cir. 1995). Thus,

if 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.

O'Laughlin, 568 F.3d at 301 (alterations omitted) (quoting United

States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir. 1995)).

-15-
 In determining when such doubts must necessarily exist,

we have identified certain guidelines by which to evaluate

sufficiency of the evidence challenges raised under § 2254(d)(1)'s

"unreasonable application" prong:

(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.

O'Laughlin, 568 F.3d at 304 n.22 (quoting Hurtado, 245 F.3d at 18).

Finally, although we must reach our own conclusion on the

petitioner's constitutional claims, we have emphasized "the great

degree of deference state court judgments are due, especially those

that uphold jury verdicts." Id. at 300. Accordingly, "[w]hen the

record is fairly susceptible of two competing scenarios, the choice

between those scenarios ordinarily is for the jury." United States

-16-
v. Dwinells, 508 F.3d 63, 74 (1st Cir. 2007); see also United

States v. Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir. 1985)

("[T]he jury is free to choose among varying interpretations of the

evidence, as long as the interpretation they choose is

reasonable.").

C. Massachusetts Elements of First Degree Murder

In Massachusetts, first degree murder is "committed with

deliberately premeditated malice aforethought, or with extreme

atrocity or cruelty, or in the commission or attempted commission

of a crime punishable with death or imprisonment for life." Mass.

Gen. Laws ch. 265, § 1. A defendant in Massachusetts may be

convicted of first degree murder under a theory of either principal

liability or joint venture. In order to convict a defendant under

a principal liability theory, the evidence, "by any reasonable

interpretation . . ., [must show that] the alleged perpetrator has

himself committed all elements of the crime." Commonwealth v.

Santos, 797 N.E.2d 1191, 1199 n.6 (Mass. 2003). When the crime

charged is first degree murder and the killing is alleged to have

been committed with a firearm, a principal liability theory

requires that the prosecution prove that the defendant actually

pulled the trigger to kill the victim. See, e.g., Commonwealth v.

Stewart, 875 N.E.2d 846, 855 (Mass. 2007) (finding that "sufficient

evidence for a rational jury to find beyond a reasonable doubt that

the defendant was the shooter. . . . supports a finding of

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principal liability"); Commonwealth v. Cannon, 869 N.E.2d 594, 599-

600 (Mass. 2007) (noting that there was insufficient evidence to

support conviction under a theory of principal liability where "the

evidence, collectively, was insufficient for the jury to find

beyond a reasonable doubt that the defendant was the shooter").

In contrast, in order to convict on a theory of joint

venture, the prosecution must show that "the defendant was at the

scene of the crime, with knowledge that another intended to commit

the crime and with a shared intent to commit the crime, and that

the defendant aided or assisted in the commission of the crime, or

was willing and available to assist the other person in carrying

out the crime if necessary." Cannon, 869 N.E.2d at 600. Thus, a

defendant may be convicted of first degree murder as a joint

venturer even if the evidence does not support a finding that he,

himself, fired the shots that killed the victim. See id. at 600-

02.

The prosecution may choose to try a case under either a

theory of principal liability, joint venture, or both. See, e.g.,

Stewart, 875 N.E.2d at 854 (noting that the case was submitted to

the jury on theories of both principal and joint venture

liability). However, if the prosecution chooses to proceed under

a theory of principal liability, and the jury does not receive an

instruction on joint venture, the joint venture theory is deemed to

have been waived and may not be resurrected should the evidence be

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insufficient to convict on a principal liability theory. See

Commonwealth v. Salemme, 481 N.E.2d 471, 474 n.5, 476-77 (Mass.

1985) (reversing conviction and remanding for a judgment of

acquittal where state waived joint venture theory, but evidence

equally well supported conclusion that a co-conspirator shot the

victim).

III.

A. The Legal Standard Applied by the SJC

Morgan argues that the SJC applied a preponderance of the

evidence standard to the evidence presented at his trial, instead

of the beyond a reasonable doubt standard required by Jackson. He

cites the SJC's statement that Morgan's conviction under a

principal liability theory was justified because "the evidence did

point more strongly in the direction of the defendant's culpability

as the perpetrator such that a jury could reasonably infer that the

defendant was the shooter beyond a reasonable doubt." Morgan I,

868 N.E.2d at 107. In particular, Morgan argues that the SJC's

statement that the "evidence did point more strongly" to him than

to Johnson transformed the beyond a reasonable doubt standard into

a mere preponderance of the evidence standard, and that it held

that the evidence was sufficient to support his conviction under

this lesser standard.

Morgan misreads the SJC's holding. The SJC began its

analysis by describing the sufficiency of the evidence standard

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under Massachusetts law. In doing so, it relied on its previous

decision, Commonwealth v. Latimore, 393 N.E.2d 370 (Mass. 1979), in

which it laid out a sufficiency of the evidence standard that we

have recognized as consistent with Jackson. See Leftwich v.

Maloney, 532 F.3d 20, 24 (1st Cir. 2008) ("[T]he Latimore court

adopted the governing federal constitutional standard as the

Massachusetts standard for sufficiency of the evidence

challenges."). We have explained 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."

Id. at 23-24; see also O'Laughlin, 568 F.3d at 299 n.15 (stating

same and finding the Latimore decision to be an express adoption of

the Jackson standard).

The SJC did not depart from this analysis in Morgan's

case. As the district court explained,

[t]he SJC did not merely determine that there
was more evidence suggesting Petitioner, not
Johnson (or some third party), pulled the
trigger; rather it determined that there was
enough evidence pointing to Petitioner "that a
jury could reasonably infer that the defendant
was the shooter beyond a reasonable doubt."
The SJC's use of the "point more strongly"
language was a means of distinguishing this
case from Commonwealth v. Salemme . . . , in
which it had determined that when the
available evidence supported an equal
likelihood that either of two individuals
could have shot the victim, the guilt of
neither can be said to have been established
by a reasonable doubt.

-20-
Morgan II, 677 F. Supp. 2d at 434-35.4 The SJC's "point[s] more

strongly" statement immediately follows an extensive discussion of

Salemme. Furthermore, the SJC noted that it understood Morgan's

argument to be that the evidence is in equipoise as between the

possibility that he or Johnson murdered Rowe. Morgan I, 868 N.E.2d

at 106. Finally, and most importantly, the very sentence in which

the challenged language appears concludes by stating that the

evidence is "such that a jury could reasonably infer that the

defendant was the shooter beyond a reasonable doubt." Id. at 107

(emphasis added). Viewed in context, the SJC's statement was

plainly an attempt to distinguish the case before it from Salemme

and was not an articulation of a new standard by which to evaluate

Morgan's sufficiency of the evidence claim.

B. The SJC's Application of the Jackson Standard to Morgan's
Conviction

At a hearing before the district court, in his brief on

appeal, and at oral argument Morgan acknowledged that the evidence

presented at trial may have been sufficient for the jury to have

found him guilty on a theory of joint venture. As recounted above,

there was evidence of Morgan's motive, means and opportunity to

4
The Salemme case is discussed in greater detail below.
There, as here, the defendant was one of two suspects in a murder.
The SJC reversed his conviction because the evidence as between the
two suspects was nearly in equipoise and the only evidence
distinguishing the defendant was circumstantial consciousness of
guilt evidence. 481 N.E.2d 471. The SJC held that this evidence
was insufficient to establish guilt beyond a reasonable doubt.

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commit the murder, as well as evidence that Rowe was last seen

alive getting into a car with Morgan and his co-conspirator, that

Morgan was aware of his disappearance before Rowe's family realized

that he was missing,5 and that Morgan was aware of the type of

weapon used in the killing.

In this appeal, Morgan claims that the evidence offered

at his trial equally, or nearly equally, supports the conclusion

that Johnson was the shooter and thus principally liable for Rowe's

death. In making this argument, Morgan relies on several cases

from both federal and Massachusetts state courts holding that

"[w]hen the evidence tends equally to sustain either of two

inconsistent propositions, neither of them can be said to have been

established by legitimate proof." Salemme, 481 N.E.2d at 476

(internal quotation marks omitted).

Morgan relies heavily on Salemme, in which the SJC also

addressed a sufficiency of the evidence challenge to a conviction

of first degree murder. There, as here, the defendant was one of

two people who were last seen with the victim before the murder.

In that case, the prosecution's key witness, a waiter, testified

5
Morgan makes much of somewhat inconsistent testimony by
several witnesses as to the time that Lodge saw Rowe getting into
Morgan's car, the time that Lodge returned home, and the time that
Morgan called Lodge that evening. However, the jury was certainly
entitled to believe that a witness's testimony was truthful, even
if her recollection of events was off by an hour or two.
Furthermore, even accepting Morgan's argument regarding the timing
of these events, there was still ample time for Morgan to call
Lodge before Rowe's wife first attempted to reach him.

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that he saw the two suspects sitting at a table with the victim in

a restaurant approximately 10 minutes prior to the shooting. The

waiter testified that all three individuals interacted in a

friendly manner, and there was no evidence as to what transpired

during that 10 minute period. The defendant was tried under a

principal liability theory. At trial, the prosecution introduced

evidence that the defendant was sitting on the side of the victim

from which the shot was fired, as well as evidence of the

defendant's flight, which tended to show consciousness of guilt.

After the jury found the defendant guilty, the SJC

reversed the conviction and remanded the case for entry of a

judgment of acquittal. It held that "[n]o rational trier of fact

. . . could conclude, beyond a reasonable doubt . . . that [the

defendant], rather than [the alternate suspect], fired the shot."

Salemme, 481 N.E.2d at 475 (citation omitted). The SJC noted that

the possibility that the victim simply turned his head would

explain the direction from which the shot appeared to have been

fired, and added that "a defendant may not be convicted solely on

the basis of consciousness of guilt evidence." Id. at 476.

Essentially, the SJC found that the scant circumstantial evidence

pointing to the defendant in that case was insufficient to allow

anything more than conjecture as to which suspect actually killed

the victim. It went on to explain that "[i]f, upon all the

evidence, the question of the guilt of the defendant is left to

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conjecture or surmise and has no solid foundation in established

facts, a verdict of guilty cannot stand." Id. at 475.

Morgan also relies on the Sixth Circuit's decision in

Joseph v. Coyle, 469 F.3d 441 (6th Cir. 2006). In that case, the

victim was the current boyfriend of the defendant's ex-girlfriend

and the defendant was alleged to have murdered the victim out of

jealousy. There was testimony at trial that the defendant wrote

letters to his ex-girlfriend communicating his jealousy and

indicating that he was secretly watching her and the victim when

they were together. Additionally, a car similar to that driven by

the defendant and his roommate was seen circling the area prior to

the victim's disappearance, and tires on that vehicle were matched

to tire tracks found in the area. The defendant admitted that he

and his roommate were driving the car on the evening of the murder

and a knife that was usually kept in the car was missing the

following day. The victim was found with two potentially fatal

stab wounds. His body was discovered on property owned by the

defendant's grandparents and it was wrapped in construction

material, the jagged edge of which matched material found at a job

site at which the defendant and his roommate worked.

Considering these facts, the Sixth Circuit found that

there was insufficient evidence to support application of a capital

specification that required that the defendant was the "principal

offender," meaning that he personally struck the fatal blow. It

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reasoned that all of the evidence implicating the defendant also

implicated his roommate, and "none of th[e] evidence shows that

[the defendant] personally inflicted either stab wound." Joseph,

469 F.3d at 455. The court explained that, for application of the

capital specification, "when the defendant and a coconspirator are

present at the time and place of the murder, there must be evidence

showing that the defendant struck the fatal blow(s)." Id.

Importantly, the prosecution conceded at trial that there was

uncertainty as to who struck the fatal blow. Id. at 456. As the

Sixth Circuit explained:

[i]n light of the clear line of precedent
requiring proof that [the defendant] was the
actual killer, the equally clear precedent
that the actual-killer element requires proof
that the defendant personally inflicted the
death blows in a situation where (as here) the
defendant and a coconspirator are both present
at the scene, and the total absence of such
proof (accompanied by the state's concession
that it could not offer such proof, to boot),
we conclude that the Ohio Supreme Court's
decision was an unreasonable application of
the due-process standard of Jackson v.
Virginia.

Id.

Morgan argues that, as in Salemme and Joseph, the

circumstantial evidence offered against him is insufficient to

prove beyond a reasonable doubt that he, and not a specific

alternate suspect (Johnson), was the principal actor in the crime

charged. This argument ignores evidence that goes significantly

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further in distinguishing between Morgan and his co-conspirator

than the evidence in Salemme and Joseph.

First, there is evidence of numerous actions and

statements by Morgan after Rowe's disappearance that tend to show

Morgan's consciousness of guilt. In the evening of the day after

Lodge saw Rowe get into a car with Morgan and Johnson, Morgan

called Lodge and uncharacteristically kept him on the phone for an

extended period of time. In the course of this conversation,

Morgan told Lodge that "[Rowe's] wife report[ed] him missing" and

"people said I killed him." These statements were made five days

before Rowe was actually reported missing, and Rowe's wife

testified that, on March 3, the day of Morgan's call to Lodge, she

believed that Rowe was not returning her calls or answering the

door because he had simply gone to sleep.

Additionally, there was evidence that Morgan went out of

his way to ingratiate himself with Lodge. When Lodge was arrested

for possession of marijuana, Morgan told him "[y]ou cannot become

an informant. You only charged for weed and weed is a misdemeanor.

I will get you out. Don't tell them nothing." The day after the

arrest, Morgan told Lodge's girlfriend that he would pay Lodge's

bail, and, after it was determined that Lodge would not be released

because of an immigration detainer, Morgan paid for an attorney to

visit Lodge on several occasions to help with his case.

Additionally, Morgan paid moving expenses for Lodge's girlfriend.

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 There is also a series of statements by Morgan to McLean

that more directly implicate him in the murder. In particular,

McLean testified that he was in possession of a gun that belonged

to Rowe, and that shortly after Rowe's disappearance Morgan sought

to buy the gun from him because "[Rowe's] friends [were] after him

so he wanted a clean gun." When McLean demurred, explaining that

Rowe may come back to retrieve the gun, Morgan told him "[w]ell,

you don't have to worry about [Rowe], because [you'll] never see

[Rowe] again. Trust me, you'll never see [Rowe] again." Not only

does this statement indicate that Morgan was aware of Rowe's death,

but it also suggests that the gun that Morgan was previously seen

with was no longer "clean," meaning that it had since been used in

the commission of a crime. Given the fact that McLean testified

that he saw both Morgan and Johnson with guns just a few days

before, the fact that Morgan is the one who now needs a "clean" gun

suggests that he was the shooter.

Additionally, McLean testified that on a later occasion,

after Morgan had discovered that Rowe had not burglarized his

apartment, Morgan told him that he was "feeling real fucked up

. . . because [Rowe] died for the wrong reason." Lastly, McLean

testified that, when Morgan told him that Lodge had seen Rowe get

into the car with Morgan and Johnson on the evening of his

disappearance, he told Morgan "you guys pick up somebody to kill

him and somebody there seen, and you guys still do it? You guys

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got to be stupid." McLean testified that, in response to this

statement, Morgan simply laughed.

The prosecution also introduced numerous statements by

Morgan reflecting a general intent to harm the person who robbed

his apartment, as well as a specific intent to harm Rowe. In

particular, Morgan told Rowe and Rowe's wife that whoever broke

into his apartment would "feel it," and, brandishing a gun, told

one witness that "you will hear about" the person who robbed him.

Furthermore, a second witness testified that on another occasion

Morgan, while "waving" a gun, stated that "if [Rowe] or anybody

tried to rob him, he would kill them." There was also evidence

that Morgan believed Rowe to be a thief, as he told police officers

that Rowe "would rob you."6 Finally, and most significantly, a

third witness testified that, two days before Rowe's disappearance,

Morgan told him explicitly that he was going to kill Rowe. The

witness stated that he unsuccessfully tried to dissuade Morgan from

killing Rowe. Morgan replied "if no one see [me] kill [Rowe]

there's nothing no one can do about it . . . . As a matter of fact

that mother fucker gonna be dead in a week, anyway."

Morgan argues forcefully that the evidence recited above

does not rule out the theory that Johnson was the one who actually

6
Morgan made this statement to police officers approximately
two days after Rowe's body was discovered. Morgan was not yet in
custody or under arrest, but voluntarily went to the Agawam police
station with his lawyer to give a statement to police.

-28-
shot Rowe. He notes that Johnson was present when he made some of

the statements and that all of the statements and actions

attributed to him would also make sense if Johnson had been the one

to kill Rowe: Morgan's intent to kill Rowe would be satisfied; he

would have some consciousness of guilt as to the murder; and he

would possess information about the killing that a completely

innocent person would not.

Morgan's argument is, at best, a reasonable response to

the incorrect question. When reviewing a jury verdict for

sufficiency of the evidence, we do not ask whether there is a

plausible alternate interpretation of the evidence. Rather, the

proper question 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." Jackson, 443 U.S. at 319.

The jury heard testimony from multiple witnesses

regarding Morgan's threats to kill the person who burglarized his

apartment, his specific intent to kill Rowe, his need for a "clean"

gun after the murder, and his consciousness of guilt after Rowe's

disappearance. The jury found this testimony credible, as must we,

see Jackson, 443 U.S. at 319 ("Once a defendant has been found

guilty of the crime charged . . . upon judicial review all of the

evidence is to be considered in the light most favorable to the

prosecution"), and, after a proper charge regarding the beyond a

-29-
reasonable doubt standard, determined that Morgan was guilty. This

case does not present "equal or nearly equal circumstantial support

for a theory of guilt and a theory of innocence of the crime

charged." O'Laughlin, 568 F.3d at 301. In fact, there is almost

no evidence pointing directly to Johnson, while there is ample

evidence, albeit circumstantial, pointing to Morgan. Of course,

Morgan bears no burden to prove his innocence. However, in

evaluating the argument that he makes now, we are obliged to assess

any evidence in the record implicating Johnson, and to determine

how any such evidence may cast a doubt on Morgan's guilt. Having

done so, we conclude that the evidence in this case is not in

equipoise, or close to it, but rather presents sufficient evidence

to support Morgan's conviction.

Although "application of the beyond-a-reasonable-doubt

standard to the evidence is not irretrievably committed to jury

discretion," Jackson, 443 U.S. at 317 n.10, we may not second guess

a jury's verdict where it has chosen a reasonable interpretation of

the evidence before it, see Guerrero-Guerrero, 776 F.2d at 1075

("[T]he jury is free to choose among varying interpretations of the

-30-
evidence, as long as the interpretation they choose is

reasonable.").7 That is the case here.8

Affirmed.

7
In reaching this conclusion, we note that it is entirely
consistent with the guidelines we have previously identified for
evaluation of a sufficiency of the evidence challenge to a state
court conviction. Most notably, we consider the totality of the
evidence, we do not find that the state court failed to consider a
key argument, and we do not find that the state court failed to
give appropriate weight to the evidence. See O'Laughlin, 568 F.3d
at 304 n.22.
8
Of course, because there was no error by the SJC in
application of the Jackson standard, there was necessarily no
unreasonable application of the standard that would permit the
relief sought under AEDPA.

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