United States Court of Appeals
For the First Circuit
____________________
No. 00-2504
THEODORE TRIGONES,
Petitioner, Appellant,
v.
LYNN BISSONNETTE, SUPERINTENDENT,
NORTH CENTRAL CORRECTIONAL INSTITUTION,
Respondent, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
____________________
Before
Lynch, Circuit Judge,
Bownes and Magill,* Senior Circuit Judges.
____________________
Judith Farris Bowman for appellant.
William J. Meade, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief for appellee.
____________________
July 10, 2002
____________________
*
Of the United States Court of Appeals for the Eighth
Circuit, sitting by designation.
LYNCH, Circuit Judge. This is a habeas corpus case
involving a state prisoner and raising Confrontation Clause
questions. The district court denied habeas relief; we find the
question closer, but affirm the denial of relief because the state
court decision affirming petitioner's murder conviction cannot be
said to be an unreasonable application of clearly established
federal law, as determined by the Supreme Court.
I.
On July 1, 1983, a thirteen-year-old babysitter, Erica
Forestiere, was stabbed to death between 12:30 a.m. and 2:30 a.m.
while her two young charges slept upstairs. In 1984, a state court
jury convicted Theodore J. Trigones of the crime, finding him
guilty of first degree murder. He was sentenced to life
imprisonment without parole.
Trigones's defense at trial was that the father of the
children, Leo Trzcinski Jr., intending to kill his estranged wife,
had mistakenly killed Forestiere, the babysitter. Trigones
testified that, on the night of the murder, he went to the
Trzcinski residence, where he encountered Trzcinski sitting near
the already dead babysitter.
Later that night, Trigones spoke with his stepfather,
Roland Weed. At a pretrial hearing on Trigones's motion to
suppress, Weed testified that Trigones, in the early morning hours
following the murder, had said "I've done something terrible" or "I
did something terrible." At that same hearing, Weed also testified
that he understood Trigones to say "I killed someone," and that
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Trigones said something like "[t]here's a lot of hate in me" and
"if it wasn't her it would have been somebody else."
The only purpose of this pretrial hearing was to
determine whether Trigones's statements to Weed were voluntary and
products of a rational intellect, given Trigones's contemporaneous
drug and alcohol ingestion.1 The trial court found the statements
voluntary and admissible.
Trigones was denied the opportunity to confront Weed at
trial. An edited version of the transcript of Weed's suppression
hearing testimony was read to the jury, over Trigones's objection,
when Weed exercised his Fifth Amendment rights by refusing to
testify at trial. Trigones sought interlocutory relief on the
question of the admissibility of the Weed testimony and lost.
At trial, Trigones testified and pointed the finger at
Trzcinski. Trigones also attempted to counter Weed's statement.
He testified that what he had said to Weed was not that he,
Trigones, had killed someone, but that it was Trzcinski who had
killed someone, although, in the conversation with Weed, Trigones
did not name Trzcinski as the killer. Trigones testified that he
had told Weed that there is a lot of hate in him, meaning
1
Although the federal constitutional prohibition against
coerced statements does not cover private citizens' conduct,
Colorado v. Connelly, 479 U.S. 157, 166 (1986), "[u]nder
Massachusetts law, statements extracted by private citizens, even
absent governmental involvement, are subject to suppression under
the involuntariness standard," P.J. Liacos et al., Handbook of
Massachusetts Evidence § 9.3, at 591 (7th ed. 1999) (citing
Commonwealth v. Mahnke, 368 Mass. 662, 335 N.E.2d 660, 672 (1975)).
We understand Trigones's suppression hearing argument to have
focused more on whether his inculpatory statements were products of
a rational intellect.
-3-
Trzcinski, and that, if it wasn't her (the babysitter), he, again
meaning Trzcinski, would have killed someone else. Trzcinski also
testified and provided a version of the facts which, if credited,
exculpated him. The jury had the opportunity to hear from both
Trigones and Trzcinski and to evaluate which witness to believe and
who was the killer.
Weed's testimony, read into evidence at trial, was an
important element of the Commonwealth's case. Trigones's alleged
confession, as recounted by Weed, was a significant part of the
evidence tending to show that Trigones, rather than Trzcinski,
committed the murder. Indeed, as the federal district court that
heard this habeas petition noted, "Weed's testimony recounting
[Trigones's] alleged confession was likely some of the most damning
evidence." Trigones v. Hall, 115 F. Supp. 2d 158, 171 (D. Mass.
2000). The differences between Trigones's version of his statement
to Weed and Weed's version of Trigones's statement make all the
difference, according to Trigones, because Trigones's version is an
admission only to being an accessory after the fact, whereas Weed's
version is an admission that Trigones committed the murder himself.
The jury convicted Trigones, and the Supreme Judicial
Court of Massachusetts ("SJC") affirmed the jury's verdict on
appeal, Commonwealth v. Trigones, 397 Mass. 633, 492 N.E.2d 1146
(1986). The SJC rejected Trigones's argument that, under the
Confrontation Clause, the court should not have admitted Weed's
statement. Id. at 1150. It concluded that, under Ohio v. Roberts,
448 U.S. 56 (1980), the testimony was admissible because Weed was
-4-
unavailable2 to testify at trial and his suppression hearing
testimony bore adequate indicia of reliability. Trigones, 492
N.E.2d at 1149-50.
In 1991 Trigones filed a new trial motion based on
ineffective assistance of counsel. The trial court initially
denied the motion without a hearing. A single justice of the SJC
then denied Trigones's motion for leave to appeal the denial, but
remanded to the trial court for an evidentiary hearing because the
justice could not make the requisite ineffective assistance of
counsel determination on the record as it existed at the time. The
trial court held an evidentiary hearing at which Trigones's trial
counsel testified. After this hearing, the trial court again
denied the motion and a single justice of the SJC then denied
Trigones's motion for leave to appeal. Trigones next filed an
unsuccessful action in the SJC for a declaration that it was
unconstitutional to deny him the right to appeal from the denial of
the new trial motion. Trigones v. Attorney Gen., 420 Mass. 859,
652 N.E.2d 893 (1995).
In 1997, some thirteen years after his conviction,
Trigones sought federal habeas corpus relief. He argues that the
admission into evidence of the transcript of Weed's testimony
denied him his rights under the Confrontation Clause of the Sixth
Amendment to cross-examine Weed at trial. The district court
2
The parties do not dispute Weed's status as an
unavailable declarant; Weed successfully asserted, on Fifth
Amendment grounds, that he could not be compelled to testify,
Commonwealth v. Weed, 17 Mass. App. Ct. 463, 459 N.E.2d 144, 148
(1984).
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denied the writ, holding 1) that it was bound by what it considered
the SJC's not-clearly-erroneous factual conclusion that Trigones
abandoned his bias line of questioning at the suppression hearing
and 2) that Trigones had failed to raise before the state courts
his argument that his counsel had lacked a similar motive to cross-
examine at the suppression hearing. Trigones, 115 F. Supp. 2d at
172-73.
Although Trigones's argument is far from frivolous, we
affirm the district court's denial. In light of the particular
circumstances of this case, we cannot say that the SJC's conclusion
was unreasonable.
II.
Trigones makes a two-part argument3: (1) that admission
at trial of the Weed transcript violated his Sixth Amendment right
to confront Weed; and (2) that the SJC's decision that there was no
Sixth Amendment violation was either "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) (2000).
There is no credible argument that this case fits within
the "contrary to" framework of analysis. See Williams v. Taylor,
529 U.S. 362, 405-06 (2000); Hurtado v. Tucker, 245 F.3d 7, 15 (1st
3
Trigones requested an expanded certificate of
appealability to permit him to pursue claims of ineffective
assistance of counsel and claims that the state procedures for
post-conviction petitions violate due process and equal protection.
This court denied the request.
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Cir.), cert. denied, 122 S. Ct. 282 (2001). This is simply because
Trigones has not shown that the SJC's decision "arrives at a
conclusion opposite to that reached by [the Supreme] Court on a
question of law." Williams, 529 U.S. at 405; see also Bell v.
Cone, 122 S. Ct. 1843, 1850 (2002). Nor has he shown that the SJC
"confront[ed] facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrive[d] at a[n opposite]
result." Williams, 529 U.S. at 405; see also Bell, 122 S. Ct. at
1850. Because the SJC adjudicated the constitutional claim on its
merits, we apply the deferential, statutory "unreasonable
application" test, 28 U.S.C. § 2254(d)(1),4 and do not review the
SJC's constitutional conclusion de novo. Cf. Fortini v. Murphy,
257 F.3d 39, 47 (1st Cir. 2001) (stating that "we can hardly defer
to the state court on an issue that the state court did not
address"), cert. denied, 122 S. Ct. 1609 (2002). Even an incorrect
state court decision is not necessarily an "unreasonable" one for
habeas purposes. Williams, 529 U.S. at 410 (stating that "an
unreasonable application of federal law is different from an
incorrect application of federal law"); see also Bell, 122 S. Ct.
at 1850.
4
Though the Commonwealth attempts to characterize portions
of the SJC's determination as determinations of fact entitled to a
presumption of correctness rebuttable only by clear and convincing
evidence, § 2254(d)(2)'s heightened standard "applies only to
determinations of 'basic, primary, or historical facts.'" Ouber v.
Guarino, No. 01-2390, 2002 U.S. App. LEXIS 11885, at *22 (1st Cir.
June 17, 2002) (quoting Sanna v. DiPaolo, 265 F.3d 1, 7 (1st Cir.
2001)). "Inferences, characterizations of the facts, and mixed
fact/law conclusions are more appropriately analyzed under"
§ 2254(d)(1). Id.
-7-
The "unreasonable application" issue is measured against
the Sixth Amendment's requirements for the admission of prior
preliminary judicial hearing testimony of a witness who is
unavailable at trial. The Sixth Amendment's Confrontation Clause
states that "[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him." U.S. Const. amend. VI. It applies to the states through the
Fourteenth Amendment's Due Process Clause. Pointer v. Texas, 380
U.S. 400, 403 (1965).
The Confrontation Clause does not prohibit the admission
of all hearsay evidence. Idaho v. Wright, 497 U.S. 805, 813-14
(1990); Mattox v. United States, 156 U.S. 237 (1895). Although "a
literal interpretation of the Confrontation Clause could bar the
use of any out-of-court statements when the declarant is
unavailable, [the Supreme] Court has rejected that view as
'unintended and too extreme.'" Bourjaily v. United States, 483
U.S. 171, 182 (1987) (quoting Roberts, 448 U.S. at 63). "[T]here
has traditionally been an exception to the confrontation
requirement where a witness is unavailable and has given testimony
at previous judicial proceedings against the same defendant which
was subject to cross-examination by that defendant." Barber v.
Page, 390 U.S. 719, 722 (1968). That is because "the right of
cross-examination initially afforded provides substantial
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compliance with the purposes behind the confrontation requirement."
Id.5
Where hearsay evidence is offered, and that evidence
consists of testimony by an unavailable declarant, the
Confrontation Clause requires that the proponent (here the
Commonwealth) show that the transcribed testimony from the
preliminary judicial hearing bears adequate "indicia of
reliability," sufficient to offset the lack of cross-examination.
Roberts, 448 U.S. at 65-66 (quoting Dutton v. Evans, 400 U.S. 74,
89 (1970) (plurality)); see also Wright, 497 U.S. at 815-25
(applying the Roberts framework); 2 McCormick on Evidence § 252, at
123-24 (J.W. Strong ed., 5th ed. 1999) (outlining the Confrontation
Clause's standard for admission of prior testimony). Adequate
indicia are shown if the proffered testimony "falls within a firmly
rooted . . . exception" to the hearsay prohibition or if the
proponent of the evidence makes a showing of "particularized
5
The issue of use of prior hearing testimony at trial of
a newly unavailable witness is not one-sided. In the reported
caselaw under Fed. R. Evid. 804(b)(1), it is frequently the
prosecution which objects to the use of the testimony on the basis
that it lacked an opportunity or similar motive to cross-examine.
E.g., United States v. Bartelho, 129 F.3d 663, 670-72 (1st Cir.
1997) (holding suppression hearing statements inadmissible where
government's motive to cross-examine on the issue of voluntariness,
at a suppression hearing in a case against the declarant, differed
from the government's motive at a different trial, at which the
declarant's testimony inculpated the defendant); United States v.
Omar, 104 F.3d 519, 523-24 (1st Cir. 1997) (excluding from trial
prior grand jury testimony of witness who died in the interim,
where government lacked similar motive to cross-examine); United
States v. Wingate, 520 F.2d 309, 316 (2d Cir. 1975) (affirming the
exclusion of evidence given at a suppression hearing on
voluntariness by a witness unavailable at trial, because of
difference in government's motive to cross-examine).
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guarantees of trustworthiness." Roberts, 448 U.S. at 66. If the
testimony is within a firmly rooted hearsay exception, then it has
adequate indicia of reliability, without more. White v. Illinois,
502 U.S. 346, 355 n.8 (1992); Roberts, 448 U.S. at 66.
The federal and state hearsay rules, although they do not
control the constitutional inquiry, are instructive because they
outline the contours of the firmly rooted hearsay exception at
issue in this case. We have previously concluded that Fed. R.
Evid. 804(b)(1) codifies a firmly rooted exception to the hearsay
prohibition, and so evidence admissible under Rule 804(b)(1) is,
"by definition, not vulnerable to a challenge based upon the
Confrontation Clause." United States v. McKeeve, 131 F.3d 1, 9
(1st Cir. 1997).
The Federal Rules provide that former testimony is not
excluded by the hearsay prohibition if the declarant is unavailable
as a witness and "the party against whom the testimony is now
offered . . . had an opportunity and similar motive to develop the
testimony." Fed. R. Evid. 804(b)(1); see generally 2 McCormick on
Evidence, supra, § 304, at 296-97 (stating that "the issues in the
first proceeding, and hence the purpose for which the testimony was
offered, must have been such as to produce an adequate motive for
testing on cross-examination the credibility of the testimony").
The Massachusetts rule is similar. See Commonwealth v. Meech, 380
Mass. 490, 403 N.E.2d 1174, 1177-78 (1980); Trigones, 492 N.E.2d at
1149-50; P.J. Liacos et al., Handbook of Massachusetts Evidence §
8.7.1, at 489 (7th ed. 1999) (stating that "[p]rior testimony . . .
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is admissible if it was given under oath in a proceeding where the
issues were substantially the same as in the current proceeding and
the party against whom it is offered had an opportunity and a
similar motive to cross-examine the witness").
Even if the motives to develop the testimony are
dissimilar, that does not end the Confrontation Clause inquiry.
Although a showing of sufficiently dissimilar motives removes the
testimony from the "firmly rooted . . . exception" analysis by
placing the testimony outside of Rule 804(b)(1) or any other firmly
rooted hearsay exception, the testimony may still be analyzed for
"particularized guarantees of trustworthiness" and, if such
guarantees are found, admitted into evidence. Roberts, 448 U.S. at
66; see also Lee v. Illinois, 476 U.S. 530, 543 (1986) (stating
that hearsay evidence that does not fall within a firmly rooted
exception may nonetheless be admitted without violating the
Confrontation Clause upon a showing that it has particularized
guarantees of trustworthiness). If the testimony is not within a
firmly rooted exception, then the proponent must show
particularized guarantees of trustworthiness rendering the
contested hearsay statement at least as reliable as a statement
admissible under a firmly rooted exception. Wright, 497 U.S. at
821 (citing Roberts, 448 U.S. at 66).6
6
A failure to meet Rule 804(b)(1)'s requirements does not
necessarily imply a failure to meet the Confrontation Clause's
requirements. California v. Green, 399 U.S. 149, 156 (1970)
(stating that "merely because evidence is admitted in violation of
a long-established hearsay rule does not lead to the automatic
conclusion that confrontation rights have been denied").
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The SJC correctly articulated the federal constitutional
standards; the only issue, then, on federal habeas review is
whether the SJC unreasonably applied those standards.
III.
Trigones, in his habeas appeal, argues that the admission
of the Weed transcript violated his Sixth Amendment rights because
he was unable to cross-examine Weed on two issues: (1) pro-
Commonwealth bias and (2) Weed's ability to recollect accurately
the statements Weed recounted. We address bias below, and find
that Trigones has failed to exhaust his argument pertaining to
Weed's ability to recollect (except to the extent that he is
alleging an inaccuracy in Weed's recollection due to bias, as
distinguished from inaccuracies resulting from other imperfections
in Weed's ability to have perceived and recalled Trigones's
statement, such as lack of memory or inability to hear the
statements at the time they were allegedly made). The SJC
concluded that Trigones's "sole argument" was that "Weed's
testimony lacked reliability because he was not fully cross-
examined on the possibility that he may have lied in order to
protect his wife and himself from prosecution as accessories to the
crime." Trigones, 492 N.E.2d at 1150. After closely examining
Trigones's arguments presented to the SJC, we agree that Trigones
did not make his "inability to recollect" argument before the SJC
-12-
and hence, for reasons of lack of exhaustion, he may not raise it
now. Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994).7
Trigones argued before the SJC that the admission of the
Weed transcript violated his Sixth Amendment rights because he was
unable to cross-examine Weed on the bias issue. He claimed that
his suppression motion sought to exclude Weed's testimony --
recounting Trigones's statements after the murder -- because Weed's
testimony also showed that Trigones was intoxicated on drugs and
alcohol and could not have made a voluntary statement. Bias,
Trigones argued to the SJC, was not an issue at the suppression
hearing, but would have been an issue at trial if Weed had
7
We note there was already substantial evidence in the
suppression hearing record, from Weed himself, that although he
testified as reliably as he could, his memory of that evening was
imperfect. For example, with respect to events earlier that
evening, Weed admitted that his memory was weak: "I don't remember,
it's been too long," he said in response to one question; "I don't
remember" or "I really don't remember," he replied to about ten
other questions. He also said he was "not really sure" about
another statement he attributed to Trigones, and he had to guess at
some distances. Even with respect to the incriminatory statements,
Weed offered two versions and then said he could not recall
specifics of other statements because he was in shock and that he
"was somewhere else at the time." He recalled that he was "very
angry" and "very emotional" during that conversation. All of these
statements were ample support for Trigones to argue his point to
the jury, that a tired and upset Weed had misperceived what
Trigones said to him. The point to be made -- that Weed's memory
was faulty -- could be argued to the jury from the basic facts.
Indeed, in his closing argument, Trigones argued that the small
difference between his own version of his statement on the night of
the murder and Weed's version of that statement, as recorded at the
suppression hearing, could be explained by the process of Weed's
listening to, interpretation of, and "regurgitation" of Trigones's
words. We do not decide that, had Trigones properly presented his
argument, all of this would have justified the state court
rejecting his claim. Rather, we present these facts from the
record as context to show that the exhaustion requirement has not
worked a substantial injustice.
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testified. The asserted bias was in favor of the Commonwealth, and
brought about by the interests of Weed and his wife in avoiding
being charged "as accessories after the fact to murder." Trigones,
492 N.E.2d at 1148.
The SJC addressed three issues: (1) "the extent of the
asserted restriction of cross-examination," (2) the "Sixth
Amendment principles governing the admission of Weed's recorded
testimony," and (3) "whether . . . the constitutional standard was
satisfied." Id. It concluded there was no constitutional
violation, id. at 1150, finding that Trigones had an opportunity to
cross-examine Weed on bias, although, "[p]erhaps for tactical
reasons, defense counsel . . . acquiesced in the judge's suggestion
of irrelevance and abandoned that line of questioning," id. at
1149. The SJC noted that there had been some limited examination
on bias at the suppression hearing. Id. at 1148-49. As to motive,
the SJC concluded that Trigones "should have had the same motive to
cross-examine Weed at the pretrial hearing on the relevant issue of
bias . . . as he would have had if Weed had testified in person at
trial." Id. at 1150.
These conclusions, if correct (or, for habeas purposes,
at least reasonable), were sufficient under clearly established
Supreme Court law for the SJC to reject Trigones's Confrontation
Clause argument. The SJC, however, proceeded to address whether
Weed's testimony should nonetheless be excluded because Trigones
did not adequately pursue his opportunity to cross-examine Weed on
bias, and concluded that cross-examination on this point would not
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have made a difference. Id. We hold that the SJC's conclusions on
opportunity and similar motive were not unreasonable and therefore
conclude that Weed's testimony fell within a firmly rooted hearsay
exception. Because it would not have been unreasonable for the SJC
to stop the analysis there, given that the Supreme Court has not
resolved whether an unexercised opportunity is sufficient to
satisfy the Confrontation Clause's requirements, Roberts, 448 U.S.
at 61-62, 70-71, we conclude without the need to address the SJC's
holding that cross-examination on bias at trial would not have made
a difference.
A. Opportunity to Cross-Examine Weed on Bias
The question whether Trigones had an opportunity to
pursue his bias line of questioning at the suppression hearing is
a very close one. Even if, faced with the issue on direct appeal,
we would have resolved the issue differently, we cannot say that
the SJC's conclusion as to opportunity was unreasonable.
The question whether Trigones's counsel, regardless of
his motive, had a sufficient opportunity to cross-examine Weed at
the suppression hearing turns on one's interpretation of the
following exchange, which occurred at the suppression hearing,
between counsel (Mr. Delinsky) and Weed, immediately followed by an
exchange between counsel and the trial judge:
Q: Were you told at that time that Mrs. Weed
could not be prosecuted . . . for helping
somebody after a crime was committed because
she was a blood relative and a mother? Were
you told that by the Police?
A: No, I wasn't.
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Q: Were you told that by the District Attorney?
THE COURT: Now wait, Mr. Delinsky, please. Let's
assume that all of this happened that you're
asking him. What relevance does it have to
this hearing?
DELINSKY: I'll go on.
Q: Now, --
THE COURT: No, I mean tell me. What relevance does it
have? The only thing that I've got to
decide in this is was his statement that of
a rational intellect and I'm going to let
the jury listen.
DELINSKY: I agree.
THE COURT: And what he told his wife and what his wife
did or what he did has got absolutely
nothing to do with this hearing. Now when
we get in front of the jury as to what
caused him to make this statement, that's a
different story. I'm not going to stop you
there.
DELINSKY: Okay, thank you.
One view of this colloquy, not unreasonable, is that
counsel had an opportunity to engage in the bias line of
questioning, but chose not to pursue it. When the trial judge
first asked counsel "[w]hat relevance does [this line of
questioning] have to this hearing?" counsel's only response was
"I'll go on," apparently meaning that he would proceed to a
different topic. The judge, refusing to permit counsel to abandon
his line of questioning so easily, asked counsel a second time,
"[w]hat relevance does [this line of questioning] have?" The judge
explained his own reason for thinking that the bias-related
question was not relevant, stating "[t]he only thing that I've got
to decide in this is was his statement that of a rational
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intellect." At this point, counsel did not rebut the judge's
suggestion of lack of relevance, but instead stated "I agree."
As the SJC concluded, Trigones, 492 N.E.2d at 1149,
Weed's purported pro-Commonwealth bias was of course relevant at
the suppression hearing, even though the suppression hearing was
limited to the rational intellect question. Pro-Commonwealth bias
would tend to diminish the credibility of any of Weed's statements
favoring the Commonwealth, and to enhance the force of any of
Weed's statements favoring Trigones. Upon prompting by the trial
judge to describe the relevance of the bias line of questioning to
the suppression hearing, counsel could have pointed this out.
Instead, counsel acquiesced.
We might have decided the opportunity issue differently
were it raised on direct appeal, given that counsel might plausibly
be understood to have acquiesced not in the face of an invitation
to explain the relevance of his inquiry, but rather in light of the
trial judge's final conclusion that the line of questioning was not
relevant. This alternative characterization of the colloquy is
strengthened by the trial judge's reassuring statement to counsel
that "when we get in front of the jury as to what caused him to
make this statement, that's a different story. I'm not going to
stop you there."
But the SJC's conclusion that defense counsel, perhaps
for tactical reasons, acquiesced and abandoned the bias line of
questioning despite the trial judge's invitation to explain its
relevance is not "unreasonable" as that term has been interpreted
-17-
under § 2254. Similarly, the conclusion that an opportunity,
though hardly used, is sufficient to qualify as an "opportunity" to
cross-examine for purposes of the Confrontation Clause is not
unreasonable. See Roberts, 448 U.S. at 61-62, 70-71, 73 n.12;
Siegfriedt v. Fair, 982 F.2d 14, 19 (1st Cir. 1992) (citing
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam), and
Roberts, 448 U.S. at 73 n.12); Fed. R. Evid. 804 advisory
committee's note (stating "no unfairness is apparent in requiring
[a party] to accept his own prior . . . decision not to cross-
examine").
B. Similarity of Motive to Cross-Examine Weed on Bias
In this case, the similarity of motive question is a
complicated one. Our analysis differs substantially from the
SJC's, but we again conclude that the SJC's position was not
unreasonable.8
8
The Commonwealth defends the SJC's "similarity of motive"
conclusion as being a factual finding to which we must give
deference. See 28 U.S.C. § 2254(d)(2). It may be that a court's
determination as to similarity of motive is treated as a factual
determination. See United States v. Salerno, 505 U.S. 317, 326
(1992) (Blackmun, J., concurring) (stating that Rule 804(b)(1)'s
"similar-motive inquiry . . . is inherently a factual inquiry");
Battle v. Mem'l Hosp. at Gulfport, 228 F.3d 544, 552 (5th Cir.
2000) (same in a civil case). If so, it is a factual determination
made after comparing the "similarity of the underlying issues" and
the context of the prior questioning. Salerno, 505 U.S. at 326.
We reiterate, however, that "[i]nferences, characterizations of the
facts, and mixed fact/law conclusions are more appropriately
analyzed under" § 2254(d)(1). Ouber, 2002 U.S. App. LEXIS 11885,
at *22. We need not determine, on these facts, whether the SJC's
similarity of motive conclusion was one of law or one of fact
because, either way, it was not unreasonable.
-18-
At first cut, there appears to be a substantial argument
that Trigones's motive to cross-examine Weed on bias at the
suppression hearing was significantly different from the motive he
would have had at trial. Weed's suppression hearing testimony that
Trigones was incoherent and irrational tended to favor Trigones,
who was then trying to prove that his confession was not the
product of a rational intellect and, for that reason, should be
suppressed. At the suppression hearing, the truth of Weed's
rendition of Trigones's statement was not at issue. The only issue
was whether Trigones's alcohol and drug intoxication rendered
whatever statements he made involuntary. The limited scope of the
suppression hearing is evident from the text of Trigones's original
motion to suppress, the trial judge's statements at the suppression
hearing, and the trial judge's ruling on the motion to suppress,
all of which were limited to the issue of voluntariness.
At trial, in contrast, the truth of Weed's testimony
about the content of the inculpatory statements was certainly at
issue and, when credited, that testimony hurt Trigones. It formed
an important part of the evidence tending to implicate Trigones,
rather than Trzcinski, in the murder. At trial, one could argue
that Trigones had an incentive to attack Weed's credibility and
thereby undermine his harmful testimony, whereas at the suppression
hearing Trigones had an incentive to defend Weed's credibility and
thereby bolster his helpful testimony. Such differences can make
for dissimilar motives. Cf. United States v. Bartelho, 129 F.3d
663, 672 (1st Cir. 1997) (concluding that similar motive to cross-
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examine did not exist when, "[a]lthough [the witness's] credibility
was generally at issue in each proceeding, . . . the more
particular points [counsel] sought to make were quite different").
But the SJC's contrary position, that Trigones "should
have had the same motive to cross-examine Weed at the pretrial
hearing on the relevant issue of bias in favor of the Commonwealth
as he would have had if Weed had testified in person at trial,"
Trigones, 492 N.E.2d at 1150, is not unreasonable. At both the
suppression hearing and at trial Trigones had an incentive to paint
Weed as biased in favor of the Commonwealth. Such a
characterization would tend to diminish the credibility of any of
Weed's statements favoring the Commonwealth. It would also tend to
enhance the force of any of Weed's statements favoring Trigones
because any such statements, made despite pressure to testify
unfavorably to Trigones, could be characterized as all the more
believable in light of Weed's incentive to testify contrary to
Trigones's interests. At the suppression hearing, showing Weed's
pro-Commonwealth bias could only have helped Trigones, by showing
that Weed was willing to describe Trigones as unable to make
rational statements -- testimony helping Trigones -- despite his
incentive to provide testimony favoring the Commonwealth, and
perhaps by casting doubt on whether Trigones even made the exact
statements that Weed recounted.
For these reasons, it is not unreasonable to conclude
that Trigones had a motive at the suppression hearing to cross-
examine Weed on the issue of pro-Commonwealth bias similar to the
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motive he would have had at trial. True, the stakes at trial would
have been higher, but the stakes are almost always higher then (or
at least different), and it is clear that in many cases the motive
at a preliminary hearing is sufficiently similar to the motive at
trial to bring the evidence within the Confrontation Clause's
requirements, e.g., Roberts, 448 U.S. at 72-73; California v.
Green, 399 U.S. 149, 165 (1970). See generally 5 Weinstein's
Federal Evidence § 804.04[5] (J.M. McLaughlin ed., 2d ed. 2002)
(stating that "similar motive does not mean identical motive"). In
addition, the stakes were also high at the suppression hearing,
where, if Trigones had successfully asserted his involuntariness
argument, the inculpatory statements could have been kept out
altogether. Trigones could only have been helped by showing Weed's
bias against him.
The more simplistic characterization -- that Trigones had
a motive to paint Weed as truthful at the suppression hearing, but
as a liar at trial -- is not necessarily the best characterization
because it fails adequately to account for the nuances of
Trigones's bias argument. Trigones's argument was never that Weed
was a liar. Rather, his argument was that the import of Weed's
testimony turned on the small details, those small details were
matters of recollection, and Weed's recollection could easily have
been tilted against him as a result of Weed's desire to please the
Commonwealth and thereby avoid prosecution of himself or his wife
as an accessory after the fact to murder. Trigones had a motive to
cross-examine Weed on this subtle pro-Commonwealth bias at the
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suppression hearing and would have had a similar motive to cross-
examine on this point at trial. It was not unreasonable to
conclude that he had a motive to cross-examine on this subject
matter at the suppression hearing similar to the motive he would
have had at trial.
In light of this conclusion, we hold that the SJC
reasonably concluded that Weed's testimony was admissible under the
firmly rooted exception to the hearsay rule for prior recorded
testimony. This finding alone suffices to reject Trigones's
Confrontation Clause challenge and we need not address the SJC's
resolution of whether Trigones's pursuit of the bias point would
have made a difference.
IV.
The Supreme Court's Confrontation Clause cases have
sought to accommodate competing interests. Those interests include
both allowing the prosecution to present material, reliable
evidence and preserving the accuracy of the judicial process
through the defendant's exercise of his rights to confront and
cross-examine adverse witnesses. The SJC's conclusion that there
was no Confrontation Clause violation is within the range of
reasonable judgments which may be reached. The state court
decision is not an unreasonable application of clearly established
federal law, as determined by the Supreme Court.
We affirm the district court order denying the writ of
habeas corpus.
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Trigones v. Bissonnette
Combined Opinion