United States Court of Appeals
For the First Circuit
No. 07-2059
STEPHEN DAGLEY,
Petitioner, Appellant,
v.
LOIS RUSSO,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Torruella, John R. Gibson,* and Lipez,
Circuit Judges.
Brownlow M. Speer, with whom the Committee for Public Counsel
Services was on brief, for petitioner.
Scott Katz, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief, for respondent.
August 15, 2008
*
Of the Eighth Circuit, sitting by designation.
LIPEZ, Circuit Judge. Petitioner Stephen Dagley was
convicted in the Essex County Superior Court in Massachusetts of
first degree murder and sentenced to a mandatory term of life
imprisonment without the possibility of parole. After exhausting
his state court appeals, petitioner filed a 28 U.S.C. § 2254 habeas
petition challenging his detention. He asserted that a
prosecutor's prejudicial misstatement during closing arguments, and
the court's subsequent failure to directly cure the misstatement,
resulted in a fundamentally unfair trial and the infringement of
his right to due process under the Fourteenth Amendment. The
district court denied relief and Dagley appeals. We affirm.
I.
We recite only those facts necessary to resolve Dagley's
claim, as they were determined in the state proceedings. Pursuant
to 28 U.S.C. § 2254(e)(1), we presume the correctness of these
findings.1 Dagley does not dispute any of the state courts'
findings of fact.
1
In full, 28 U.S.C. § 2254(e)(1) states:
In a proceeding instituted by an application
for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State
court, a determination of a factual issue made
by a State court shall be presumed to be
correct. The applicant shall have the burden
of rebutting the presumption of correctness by
clear and convincing evidence.
-2-
The petitioner was indicted for murdering the victim in
September 2000. According to Dagley's neighbor downstairs, the
killing followed an argument between Dagley and the victim, his
girlfriend, earlier in the evening in which she told the petitioner
that he would have to move out of their apartment. The neighbor
recalled Dagley and the victim entering their apartment while still
arguing. He heard more yelling and screaming from the apartment,
then periodic banging sounds, like a "hammer hitting the floor."
The initial period of yelling and banging lasted approximately
twenty to twenty-five minutes, and the banging continued
intermittently for another ten minutes thereafter. The banging was
sufficiently powerful to cause ceiling tiles in the neighbor's
apartment to drop, and some plaster also loosened and fell. The
neighbor contacted both the building owner and the police regarding
the incident, and the police arrived within minutes to find the
victim lying unconscious on the floor of her apartment with a large
pool of blood around her head. Having suffered numerous blows to
her face, neck, and chest, causing multiple fractures, extensive
bruising and swelling, hemorrhaging in the back of her head and
back, and a lapse into a state of shock, she was pronounced dead,
despite attempts by emergency medical personnel to revive her.
The police inspected the scene, finding bloody footprints
(later matched to the soles of the petitioner's shoes) in a path
toward the window. The window screen appeared to have been kicked
-3-
out, with the perpetrator having escaped onto the roof. The police
obtained Dagley's name from the downstairs neighbor and alerted
other officers that they were on the lookout for the petitioner.
Very early the next morning, a Beverly, Massachusetts
police officer spotted the petitioner at the home of his ex-
girlfriend in Beverly and contacted the Salem police. When the
Salem police arrived at the scene, they asked if the petitioner
would accompany them to the police station for questioning. He
agreed. The petitioner was not arrested, nor restrained. On their
way to the station, he complained to the police that he was in
pain, stating that he had been "jumped by people" earlier in the
night.
When they arrived at the station around 1:55 A.M., the
police read Dagley his Miranda warnings. After reciting several
different versions of the night's events, the petitioner
acknowledged that he had gone back to the victim's apartment to try
to "make up" with her, and had "lost control." He claimed that
after being punched and kicked by the victim, he punched her twice
quickly, knocking her down, and then struck her a third time when
she was on the floor. He described the victim as "just groaning"
on the floor with her hands over her face. Upon hearing the police
arrive, he left through the window and over the roof on foot.
After confessing to the officers at the police station,
the petitioner also acknowledged that, although he had been
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confronted by some people earlier in the day, he had not been
attacked by them. The interview lasted approximately two hours.
After its conclusion, Dagley was given an opportunity to correct
the notes taken during the interrogation. Dagley was then formally
arrested and booked.
At trial, Dagley again admitted to having killed the
victim, but sought to convince the jury that his use of force was
an instinctual response to the victim's unprovoked attack on him.
He testified that after engaging in an argument with the victim
about their living arrangement and her failure to attend her
methadone clinic, he packed his belongings and prepared to move out
of the apartment. After loading his car, he explained that he
returned to the apartment to leave a note for the victim in hopes
of "mak[ing] up." Having been drinking previously, Dagley claimed
to have passed out on the bed in the apartment. He testified that
when he awoke the victim was "on top of him, grabbing at him."
Instinctively, and still in a "stupor," he said he "started
swinging" at the victim. According to his testimony, the next
thing he knew the victim was on the floor bleeding and unconscious.
In response, he claims to have "freaked out" and escaped out the
window because he heard yelling outside the building.
In his closing argument, Dagley's counsel asserted that
because Dagley acted instinctually in response to a "reasonable
provocation," he should only be found guilty of manslaughter, not
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murder. Counsel repeatedly stated that the Commonwealth was
required to prove that the petitioner acted "in cold blood" in
order to obtain a murder conviction.
The prosecutor urged the jury to reach a different
conclusion. Insisting that the evidence presented to them
undermined Dagley's version of the events, the prosecutor stated
the following near the end of the closing argument:
His [the petitioner's] actions that night were
not just what he wants you to believe,
manslaughter, simply manslaughter, reckless
conduct, or heat of passion, or response to
some sort of provocation, reasonable response
or reasonable provocation or even sudden
combat. This was murder.
Commonwealth v. Dagley, 816 N.E.2d 527, 534 (Mass. 2004) (emphasis
added). After the prosecutor completed his argument, Dagley's
counsel objected to the above portion, asserting that the use of
the phrase "reasonable response" was legally inaccurate as
manslaughter does not require the petitioner's response to be
reasonable. Instead, defense counsel noted that manslaughter is
emphatically "an unreasonable or excessive response to a reasonable
provocation." Id. at 535.
In response, the judge noted that both counsel had
inaccurately stated the law at points during the trial and that any
confusion would be remedied in his instructions to the jury. In
those instructions, the judge provided accurate legal distinctions
between murder and manslaughter, including a definition of
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"reasonable provocation," and noted that the "Commonwealth has the
burden to prove the absence of mitigation beyond a reasonable doubt
in order to convict the [petitioner] of murder."2 Id. Further,
2
The judge's instruction on "reasonable provocation" was as
follows:
In order to prove the petitioner acted
with malice, the Commonwealth must prove
beyond a reasonable doubt the absence of
mitigating factors [one of which is heat of
passion upon reasonable provocation]. . . .
Reasonable provocation is provocation of
the type which would be likely to produce in a
reasonable person in the circumstances known
to the petitioner such a state of passion,
anger, fear, fright, or nervous excitement as
would overcome his capacity for reflection or
restraint, and did actually produce such a
state of mind in the petitioner.
The provocation must be such that a
reasonable person would have become
sufficiently provoked and would not have
cooled off by the time of the killing.
In addition, there must be a causal
connection between the provocation, state of
passion, and the killing. The killing must
follow the provocation before there is
sufficient time for the emotion to cool and
must be the result of the state of mind
induced by the provocation rather than a
preexisting intent to kill or injure.
Mere words, no matter how insulting or
abusive standing alone do not constitute
reasonable provocation. Physical contact,
even a single blow, may amount to a reasonable
provocation. Whether the contact is
sufficient will depend on whether a reasonable
person under similar circumstances would have
been provoked to act out of emotion rather
than reasoned reflection.
The heat of passion must also be sudden;
that is, the killing must have occurred before
a reasonable person would have regained
control of his emotions.
-7-
the judge repeatedly instructed the jury that they were required to
apply the law as the judge gave it to them, and that they could
only convict the petitioner of a crime if they found that the
Commonwealth had proven every element of that crime. The court
provided written instructions to the jury, which at no point asked
for clarification from the judge before returning a conviction for
first-degree murder.
The SJC affirmed the conviction on appeal. Dagley, 442
N.E.2d at 537. Dagley's petition for certiorari to the United
States Supreme Court was denied shortly thereafter in March 2005.
Dagley subsequently filed a petition for writ of habeas corpus in
December 2005, raising a single claim. He argued that the
prosecutor's inclusion of the phrase "reasonable response" in his
closing argument, which represents a misstatement of the definition
of manslaughter, and the court's failure to specifically correct
the error, deprived him of his right to due process under the
Fourteenth Amendment.
In June 2007, the District Court of Massachusetts denied
Dagley's petition after briefing by the parties and a non-
evidentiary hearing. In a thorough and thoughtful opinion, the
court found that the prosecutor's legally incorrect use of the
If the Commonwealth has not proved beyond
a reasonable doubt the absence of heat of
passion upon reasonable provocation, the
Commonwealth has not proved malice.
-8-
phrase "reasonable response" during closing argument in describing
the elements of manslaughter, and the trial court's failure to
correct explicitly that error in its jury instructions, did not
violate Dagley's due process rights by rendering the trial
fundamentally unfair. The district court subsequently issued a
Certificate of Appealability on Dagley's due process claim.
II.
We review a district court's denial of a petitioner's
habeas claim de novo. Delaney v. Bartee, 522 F.3d 100, 102 (1st
Cir. 2008). Under the Antiterrorism and Effective Death Penalty
Act ("AEDPA"), 28 U.S.C. 2254, we may issue the writ if the SJC's
adjudication "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." 28 U.S.C. § 2254(d)(1); see Teti v. Bender, 507 F.3d 50,
56 (1st Cir. 2007). To be "contrary to" clearly established
Supreme Court law, a state court must "appl[y] a rule that
contradicts the governing law set forth in [the Supreme Court's]
cases" or "confronts a set of facts that are materially
indistinguishable from a decision of th[e] [Supreme] Court and
nevertheless arrives at a result different from [its] precedent."
Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Alternatively, a
state court's decision runs afoul of the "unreasonable application"
prong if the court either "identifies the correct governing legal
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rule from th[e] [Supreme] Court's cases but unreasonably applies it
to the facts of the particular state prisoner's case" or
"unreasonably extends a legal principle from [the Supreme Court's]
precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context
where it should apply." Id. at 407. The rule relied upon by the
petitioner for relief must be "clearly established law as
determined by th[e] [Supreme] Court," which refers to holdings, not
dicta. Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004).
III.
A. Petitioner's Claim
Relying on the Supreme Court's decision in Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974), Dagley asserts that the
prosecutor's closing argument, in which he stated that "the
petitioner wants you to believe [his actions] were some sort of .
. . reasonable response or reasonable provocation or even sudden
combat," contributed to a violation of his due process rights under
the Fourteenth Amendment. In Donnelly, the Court recognized that
a prosecutor's closing argument could be sufficiently prejudicial
so as to constitute a deprivation of a petitioner's constitutional
rights. See id. Applying that decision to this case, Dagley
argues that the prosecutor's mention of a "reasonable response"
requirement gravely misstated the definition of manslaughter,
thereby misleading the jury into believing that such a response is
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a required element of manslaughter and creating a fundamentally
unfair proceeding.
According to the petitioner, the harmful effect of the
prosecutor's misstatement is clear when one examines Dagley's trial
tactics. At trial, Dagley's sole defense was a claim that because
his actions were a response to a reasonable provocation by the
victim, the government could not establish that Dagley acted with
malice, a necessary element of murder. See, e.g., Commonwealth v.
Gladney, 607 N.E.2d 750, 755 (Mass. 1993); Commonwealth v. Boucher,
532 N.E.2d 37, 39 (Mass. 1989). Instead, Dagley argued, the
government could only prove that he committed manslaughter. In
Massachusetts, "if a person kills another in the heat of passion,
which is occasioned by adequate and reasonable provocation, or in
sudden combat, then even though that person had an intent to kill,
the killing is designated manslaughter and not murder because of
the mitigating circumstances." Commonwealth v. Whitman, 722 N.E.2d
1284, 1289 (Mass. 2000) (quoting Commonwealth v. Acevedo, 695
N.E.2d 1065, 1067 (1998)). In cases "[w]here the evidence raises
the possibility that the petitioner may have acted on reasonable
provocation, the Commonwealth must prove, and the jury must find,
beyond a reasonable doubt that the petitioner did not act on
reasonable provocation." Acevedo, 695 N.E.2d at 1067. Thus,
Dagley asserts, the error went to the heart of his defense.
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Compounding the prosecutor's error, according to Dagley,
was the trial judge's inadequate response to the error. Rather
than specifically instructing the jury to disregard the
prosecutor's misstatement, the judge's response was limited to
stating the elements of murder and manslaughter in the course of
giving its overall instructions to the jury. Thus, Dagley argues,
the taint from the prosecutor's misstatement had not been
adequately cured, leaving a lasting impression in the jury's mind
that his response had to be "reasonable" in order to satisfy the
requirements of manslaughter. He asserts that the combination of
the error, which reached to the heart of his defense, and this
failure by the trial judge to adequately address and cure such
error, made the entire proceeding "fundamentally unfair," thereby
amounting to an infringement of his due process rights.
B. The SJC's Decision
The SJC evaluated Dagley's prosecutorial error claim
under the standard outlined in Commonwealth v. Kelly, which sets
forth four factors for determining if a new trial is warranted.
629 N.E.2d 999, 1002 (Mass. 1994).3 The court examined (1) whether
3
Petitioner concedes that the deferential AEDPA standard of
review applies to the SJC's decision. With that concession, the
petitioner acknowledges that the Kelly standard applied by the SJC
is "as least as protective of the [petitioner]'s rights as its
federal counterpart." Leftwich v. Maloney, No. 06-2583, 2008 WL
2600365, at *3 (1st Cir. July 2, 2008); see also Fortini v. Murphy,
257 F.3d 39, 47 (1st Cir. 2001) (noting that the AEDPA standard of
review applies only when the state court has decided the federal
issue). There is no precise federal standard governing due process
-12-
there was a timely objection, (2) whether the inaccuracy went to a
collateral issue or to the "heart of the case," (3) what steps the
judge took to mitigate the prosecutor's mistake, and (4) whether it
would "possibly make a difference in the jury's conclusion." See
id.
The SJC found that the first two factors weighed in favor
of Dagley. The court acknowledged Dagley's contemporaneous
objection to the prosecutor's statement. It also agreed with
Dagley that the prosecutorial error went to the heart of Dagley's
claim, as it addressed the elements required to establish the crime
of manslaughter. However, the SJC concluded that the third and
claims based on a prosecutor's remarks. In its two cases directly
addressing the issue, the Supreme Court has concluded, based on the
circumstances of each case, that the petitioner's due process
rights had not been violated. See Donnelly, 416 U.S. at 642-45
(rejecting due process claim after considering, inter alia, the
likely impact of the prosecutor's remark when viewed in relation to
the entire trial, and the trial court's instructions to the jury);
Darden v. Wainwright, 477 U.S. 168, 178-83 (1986) (rejecting claim
based on the individual circumstances of the case, including the
trial judge's subsequent instructions to the jury and the strong
weight of the evidence against the petitioner); see also United
States v. Nelson-Rodríguez, 319 F.3d 12, 38 (1st Cir. 2003)
(reciting the standard we use to evaluate whether improper
statements made during closing argument are harmful, which focuses
on "(1) the severity of the prosecutor's misconduct, including
whether it was deliberate or accidental; (2) the context in which
the misconduct occurred; (3) whether the judge gave curative
instructions and the likely effect of such instructions; and (4)
the strength of the evidence against the defendants") (internal
quotation omitted). The Kelly standard, which guided the SJC's
analysis here, includes all of the factors explicitly considered by
the Court in Donnelly and Darden, or close variants thereof, and is
also functionally equivalent to our own standard for assessing such
claims.
-13-
fourth Kelly factors weighed heavily in favor of the government.
On the third factor -- what steps the judge took to mitigate the
prosecutor's mistake -- the SJC found that the judge properly
instructed the jury on the distinction between murder and
manslaughter, including the concept of "reasonable provocation."
Although the trial court did not specifically address the
prosecutor's mistake by telling the jury to ignore the erroneous
statement, the trial judge did assure the jury throughout the
course of the trial that he would instruct them, both orally and in
writing, on all of the applicable issues of law. According to the
SJC, "from the outset [of the trial], the jury had been told that
they should look solely to the judge for an explanation of the
applicable legal principles, and to ignore any differing
explanations suggested by either of the attorneys." Based on its
examination of the trial court's conduct, the SJC concluded that
the judge's final instructions were adequate to cure any confusion
caused by the prosecutor's misstatement of the law, even though the
instructions did not specifically refer to the misstatement.
On the fourth factor, the SJC was "satisfied that the
prosecutor's statement would not have made any difference to the
jury's determination." Reciting the context in which the
prosecutor erred, the court suggested that it was nothing more than
a "slip of the tongue," meant only to summarize the petitioner's
contentions and not as an explicit legal definition of
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manslaughter. Further, the SJC noted that the prosecutor's
argument was focused primarily on contesting the factual basis of
the petitioner's manslaughter defense that there was reasonable
provocation for his actions. In sum, the SJC concluded that,
viewed in the context of the proceedings as a whole, "the
prosecutor's fleeting reference to the concept of a 'reasonable
response' to provocation would not have affected the jury's
understanding of the distinction between manslaughter and murder."
Finding that the third and fourth prongs heavily favored the
government, the SJC concluded that there were "no grounds [in the
record] warranting relief."
C. Clearly Established Supreme Court Precedent
In assessing whether Dagley has met the high burdens
AEDPA imposes on him, we begin -- as a threshold matter -- by
determining whether there is clearly established Supreme Court law
applicable to Dagley's constitutional claim. On this point, Dagley
has rightly pointed us to the Court's decision in Donnelly v.
DeChristoforo. See 416 U.S. 637. As noted above, Donnelly stands
for the principle that a prosecutor's closing argument may be
sufficiently prejudicial so as to constitute a deprivation of a
petitioner's due process rights. Id. at 643. Although the Court
in Donnelly ultimately rejected the various arguments advanced by
the petitioner, noting that the prosecutor's erroneous remark was
"ambiguous" and was "followed by specific disapproving
-15-
instructions," it acknowledged implicitly that a prosecutor's
remarks may make a petitioner's trial "so fundamentally unfair as
to deny him due process." Id. at 645. The Court has applied the
principle of Donnelly in other cases, see, e.g., Darden, 477 U.S.
at 168, and, as a circuit, we have recognized this principle as
"clearly established federal law, as determined by the Supreme
Court." Olszewski, 466 F.3d at 53, 59; see also Fahy v. Horn, 516
F.3d 169, 198-99, 202 (3rd Cir. 2008) (applying the Donnelly and
Darden due process standard in the context of a habeas claim).
D. "Contrary to"
Next, Dagley must establish that the state-court decision
was either "contrary to, or involved an unreasonable application
of" Supreme Court precedent. 28 U.S.C. § 2254(d)(1). As noted
above, a state-court decision is "contrary to" Supreme Court
precedent "if it 'applies a rule that contradicts the governing law
set forth in our cases' or if it 'confronts a set of facts that are
materially indistinguishable from a decision of this Court and
nevertheless arrives at a result different from our precedent.'"
Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams, 529 U.S.
at 405-406). A failure to cite Supreme Court decisions does not
itself suggest a state court decision is "contrary to" such
precedents, Mitchell v. Esparza, 540 U.S. 12, 16 (2003), "so long
as neither the reasoning nor the result of the state-court decision
contradicts them," id. (quoting Early, 537 U.S. at 8).
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Here, Dagley has failed to show that either the reasoning
or the result of the SJC's decision contradicts the Court's
precedents. In Donnelly, the decision upon which Dagley relies,
the Supreme Court affirmed the habeas petitioner's conviction in
the face of arguments that the prosecutor's remarks during a
closing argument deprived the petitioner of his due process rights.
416 U.S. at 638.4 During the closing arguments in Donnelly, the
prosecutor implied that the petitioner had wanted to plead guilty
but was denied the opportunity. He then stated that the petitioner
and his counsel "hope that you find him guilty of something a
little less than first-degree murder."5 Id. at 640. After the
petitioner's counsel promptly objected to the statement and
requested a response from the court, the trial judge instructed the
jury not to consider any of the closing arguments as evidence,
4
By affirming the conviction, the Court reversed the decision
of a divided panel of this court that granted Donnelly's habeas
petition. See DeChristoforo v. Donnelly, 473 F.2d 1236 (1st Cir.
1973).
5
The context in which this statement was made is relevant to
understanding its potential harm to Donnelly. Because Donnelly's
co-petitioner had decided to plead guilty to a charge of second-
degree murder at the close of the evidence but before final
argument, we inferred that the jury might interpret the
prosecutor's statement as conveying the false impression that
Donnelly had unsuccessfully sought to plead to a lesser charge in
the case. Accordingly, we found that the prosecutor's actions
deliberately misled the jury on a critical point, thereby depriving
Donnelly of a constitutionally fair trial. Donnelly, 416 U.S. at
641-42.
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including, specifically, the prosecutor's misstatement regarding
Donnelly's willingness to plea.6
The Supreme Court rejected the petitioner's assertion
that the remark "so infected the trial with unfairness as to make
the resulting conviction a denial of due process." Id. at 643.
Reviewing the record as a whole, it warned courts against giving
too much weight to stray remarks in the course of a closing
argument or assuming that the jury would interpret each and every
statement in the most damaging manner possible. Id. at 647.
Accordingly, it concluded that "the prosecutor's remark here,
admittedly an ambiguous one, was but one moment in an extended
trial and was followed by specific disapproving instructions.
Although the process of constitutional line drawing in this regard
is necessarily imprecise, we simply do not believe that this
6
In Donnelly, the trial court gave the following instruction
to the jury:
Closing arguments are not evidence for your
consideration. . . .
Now in his closing, the District Attorney, I
noted, made a statement: "I don't know what
they want you to do by way of a verdict. They
said they hope that you find him not guilty. I
quite frankly think that they hope that you
find him guilty of something a little less
than first-degree murder." There is no
evidence of that whatsoever, of course, you
are instructed to disregard that statement
made by the District Attorney.
Consider the case as though no such statement
was made.
Id. at 641.
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incident made respondent's trial so fundamentally unfair as to deny
him due process." Id. at 645.
The SJC's approach in addressing Dagley's claim was
similar in substance to the approach taken by the Supreme Court in
Donnelly. Evaluating the entire record to determine if the trial
was so "fundamentally unfair as to deny him due process," the Court
in Donnelly considered, inter alia, the seriousness of the improper
remark, the context in which the statement was made, the court's
response or curative instructions, and the effect of the statement
on the overall proceeding. Id. at 644-47; see also United States
v. Ingraldi, 793 F.2d 408, 416 (1st Cir. 1986) (evaluating whether
a new trial was required for prosecutorial misconduct by
considering the severity of the misconduct, whether it was
deliberate or accidental, the context in which it occurred, the
likely curative effect of the judge's admonitions and the strength
of the evidence against the petitioner). The Kelly factors, which
guided the SJC's analysis here, focus on the same considerations
explicitly addressed by the Court in Donnelly. See supra n.3. The
SJC did not treat one factor as determinative, nor did it ignore
any factor the Supreme Court deemed essential to its decision in
Donnelly. Accordingly, the SJC's approach was not contrary to
Supreme Court precedent. Moreover, because the facts of this case
are distinguishable from any Supreme Court decision recognizing a
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due process violation, the result is not contrary to any clearly
established law. See Williams, 529 U.S. at 405.
E. "Unreasonable Application of"
To meet this standard, a petitioner must establish that
the state court decision identifies the correct governing legal
principle, but applies it in an objectively unreasonable manner to
the facts of the case. Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003). The decision must be "more than incorrect or erroneous."
Id. at 75. In addition, where the applicable rule is general in
nature, such as the Donnelly fundamental unfairness standard, state
courts have "more leeway . . . in reaching outcomes in [their]
case-by-case determinations." Yarborough, 541 U.S. at 664.
The SJC's analysis of the Kelly factors was a reasonable
application of established Supreme Court precedent. The
prosecutorial misconduct at issue in this case is less severe than
the conduct evaluated by the Court in Donnelly, where the
prosecutor, responding to defense counsel's expressed hope that the
jury would return a verdict of not guilty in a first-degree murder
case, intimated that the petitioner had wanted to plead guilty but
was denied the opportunity. By contrast, the prosecutor's
misstatement to the jury in this case was a single, isolated and
unelaborated reference in the course of an extended closing
argument intended to summarize the petitioner's various assertions.
Further, the trial judge addressed the prosecutor's error, albeit
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indirectly, through accurate oral and written jury instructions.
In sum, the potential effect that the prosecutor's statement might
have had on Dagley's trial does not approach that present in
Donnelly.7 See Darden, 477 U.S. at 181-82 (finding that a
prosecutor's several erroneous and inflammatory statements during
closing argument did not "so infect[] the trial with unfairness as
7
As an additional argument on appeal, petitioner claims that
the jury's return of a first-degree murder verdict based on a
theory of "extreme atrocity or cruelty" rather than "premeditation"
suggests that the jury accepted the petitioner's testimony that he
did not possess a specific intent to kill the victim, as required
under a theory of premeditation, but found first-degree murder
appropriate based on the petitioner's failure to meet the erroneous
"reasonable response" element. The logic of this argument is not
entirely clear from the petitioner's brief. Petitioner appears to
be arguing that because the jury rejected the prosecutor's version
of the crime, it would have accepted the petitioner's manslaughter
version had it not been for the prosecutor's "reasonable response"
misstatement of the law. In other words, the misstatement caused
the jury to focus predominantly on the conduct of the petitioner
rather than his intent, thereby accentuating the significance of
the prosecutor's misstatement. This assertion involves
considerable speculation on the part of the petitioner. Moreover,
the underlying logic of the argument is dubious. In order to
convict an individual for first-degree murder under a theory of
extreme atrocity or cruelty, the jury still must make some
determination about the petitioner's intent. See, e.g.,
Commonwealth v. Cunneen, 449 N.E.2d 658, 664-65 (Mass. 1983)
(discussing the intent required for a conviction of murder in the
first degree with extreme atrocity or cruelty). Thus, the jury's
focus was not solely on the petitioner's conduct and whether it
could be deemed a reasonable response to provocation. Furthermore,
the court instructed the jury to focus on how the petitioner
committed the crime in its instruction on first-degree murder by
extreme atrocity and cruelty. To suggest that it was only the
prosecutor's misstatement that focused the jury on how the
petitioner committed the crime contradicts the explicit
instructions that the court gave.
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to make the resulting conviction a denial of due process" (quoting
Donnelly, 416 U.S. at 637)).
Most notable for purposes of Dagley's claim is the SJC's
discussion of the third factor -- the mitigating steps the trial
court took in response to the prosecutorial error. Although Dagley
argues that the trial court's failure to specifically address the
prosecutor's misstatement to the jury made the statement more
prejudicial overall than the one in Donnelly, where the court
directly told the jury to disregard the prosecutor's misstatement,
the SJC's conclusion regarding the trial court's handling of the
prosecutor's misstatement is far from unreasonable. As the SJC
points out, the trial judge took reasonable steps to clarify the
prosecutor's misstatement of the law by providing both oral and
written instructions to the jury correctly explaining the different
elements of murder and manslaughter. This explanation followed
statements by the judge on several occasions throughout the trial
to the jury that they would be given the proper legal instructions
orally and in writing at the close of the proceedings. Although a
direct instruction responding to a prosecutorial error may have
been preferable, the SJC was correct in finding that such an
instruction was not required in this case. The SJC's conclusion on
this factor -- that the judge's steps to remedy the mistake were
sensible under the circumstances -- does not represent an
unreasonable application of Donnelly.
Affirmed.
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