United States Court of Appeals
For the First Circuit
No. 08-1094
DIANE E. FARLEY,
Petitioner, Appellant,
v.
LYNN BISSONNETTE, SUPERINTENDENT,
MASSACHUSETTS CORRECTIONAL INSTITUTION, FRAMINGHAM,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin, Circuit Judge,
and Schwarzer,* District Judge.
Brownlow M. Speer, Committee For Public Counsel Services,
Public Defender Division, for appellant.
Randall E. Ravitz, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief
for appellee.
October 8, 2008
*
Of the Northern District of California, sitting by
designation.
BOUDIN, Circuit Judge. Diane Farley spent a portion of
the evening of April 23, 1993, at the home of Sarah Ann Marsceill
in Dedham, Massachusetts. The two went out together, returning to
Marsceill's home in the early morning hours of April 24. Farley
remained there until around 9:30 a.m. Driven away by a friend,
Farley was said to have had a dark, wet stain on her trousers, for
which she offered inconsistent explanations, and to have had a roll
of twenty dollar bills even though she had earlier said she had no
money. Later that afternoon, Marsceill was found dead in her
bedroom, having been stabbed to death in a bloody fashion.
Farley was tried and convicted of first degree murder.
There was some forensic evidence against Farley,1 enhanced by her
observed presence at the scene, arguable evidence of a quarrel
between the two women, and various inconsistent statements and
positions offered by Farley. An initial conviction was reversed
for ineffective assistance of counsel, Commonwealth v. Farley
(Farley I), 732 N.E.2d 893 (Mass. 2000), but her conviction after
a retrial was affirmed. Commonwealth v. Farley (Farley II), 824
N.E.2d 797 (Mass. 2005).
1
Over and above the supposed stain, blood consistent with
Farley's was found on Marsceill's body, under one of Marsceill's
fingernails, and on the bedspread. Both Farley's and Marsceill's
blood were found on a bathrobe in the living room. There was also
forensic evidence linking May to the scene but he admitted having
been there on an earlier evening, and Farley never claimed that she
had seen May at Marsceill's house the night of the murder.
-2-
Farley then sought habeas relief in the district court.
Although the district court denied relief, Farley v. Bissonnette,
No. 06-10672-GAO, 2007 WL 4377608 (D. Mass. Dec. 11, 2007), it
granted a certificate of appealability as to two questions. The
first (we set forth the second one later in this opinion) was
whether "the trial judge's instruction to the jury that the
prosecution 'does not have the burden of proving that no one else
may have committed the murder' [was] an error that was contrary to
clearly established Supreme Court precedent as stated in In re
Winship, 397 U.S. 358 (1970)." Farley v. Bissonnette, No. 06-
10672, 2008 WL 227870 (D. Mass. Jan. 28, 2008).
The context for the instruction was Farley's contention
at trial that the murder had been committed not by Farley but by
one of two other named individuals: Michael May, who admitted to
a brief association with Marsceill, or Ronald James, said to be a
drug dealer. Farley did not testify at trial, but the jury heard
government evidence that she had initially told police and
testified before the grand jury that she left while James and
Marsceill were arguing and then later changed her explanation to a
claim that James had stabbed both women.2 The Commonwealth called
2
The Commonwealth read portions of Farley's testimony from the
first trial and before the grand jury into the record and played an
audiotape of Farley's interview at the police station; in addition,
the investigating officer testified about Farley's various
statements. Farley II, 824 N.E.2d at 802 n.8.
-3-
both James and May as witnesses; both said that they had not even
been at the Marsceill house on the night of the murder.
The trial judge, at the Commonwealth's request and over
Farley's objection, told the jury that Farley was presumed innocent
and the Commonwealth had the burden of proving her guilty of every
element of the crime beyond a reasonable doubt, but that "[t]he
Commonwealth does not have the burden of proving that no one else
may have committed the murder." Farley II, 824 N.E.2d at 802 n.10.
Farley says that this was error because her defense--that May or
James had committed the murder--meant that this premise had to be
disproved in order to find her guilty and so was part of the
prosecution's burden.
Because this claim (and the one that follows) were
resolved on the merits by the state court, our review is governed
by the standard set forth in the Anti-Terrorism and Effective Death
Penalty Act (AEDPA), namely, we ask whether the state decision "was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States." 28 U.S.C. § 2254(d) (2006). In this instance,
this required deference does not matter: the instruction at issue
does not contravene Winship.
The jury was told repeatedly that the Commonwealth had to
prove beyond a reasonable doubt that Farley had committed the
murder, whose elements under Massachusetts law were defined in the
-4-
instructions.3 The proposition that Farley says the government had
to prove--that neither May nor James had committed the murder--is
not an element of the crime (such as "premeditation"); it is a
factual assertion that might, or might not, be relevant in the
jury's evaluation of the evidence against Farley.
Farley argues that if May or James murdered Marsceill,
then this would automatically exculpate Farley; but this is not
necessarily so since she could also have aided or participated.
And even in a case where in context it had to be so, the
prosecution would be perfectly free to concentrate on the evidence
that implicated Farley without in any way countering evidence
relied on by Farley to show that someone else had motive,
opportunity, access and so forth.
Thus, where the defense attempts to cast the blame on
someone other than the defendant, it is not unusual for the court
to remind the jury that the government's burden is to show that the
defendant is guilty--not that the other person whom the defendant
seeks to blame is innocent. In Jackson v. Virginia, 443 U.S. 307
(1979), the Court itself observed that Winship does not place "the
prosecution . . . under an affirmative duty to rule out every
hypothesis except that of guilt beyond a reasonable doubt." Id. at
3
The challenged instruction appeared between two sentences
stating that the prosecution had the burden of proof beyond a
reasonable doubt as to each element of the crime, a burden that was
repeated at least ten additional times in the instruction.
-5-
326. The contested instruction in this case did no more than
repeat Jackson's caveat.
Every instruction must be judged on its own terms,
including the language used and the context of facts and arguments
offered in the case. See Victor v. Nebraska, 511 U.S. 1, 6 (1994)
(the relevant question is "whether there is a reasonable likelihood
that the jury understood the instructions to allow conviction based
on proof insufficient to meet the Winship standard"). Perhaps some
rare case might arise in which a warning by the judge as to what
the government did not have to prove might confuse the situation or
lead the jury to believe that a legitimate argument by the defense
was logically irrelevant. Taking the instructions as a whole, see
Estelle v. McGuire, 502 U.S. 62, 72 (1991), nothing of the sort
occurred in this case.
Farley's second claim is that the trial court violated
her Sixth Amendment Confrontation Clause right under Delaware v.
Van Arsdall, 475 U.S. 673 (1986), by limiting her cross-examination
of James. This is reflected in the district court's second
certified issue, namely, whether "the state court's decision that
the trial judge's limitation of the petitioner's cross-examination
of Ronald James, though error, was harmless beyond a reasonable
doubt [was] an unreasonable application of clearly established
Supreme Court precedent, namely, Delaware v. Van Arsdall, 475 U.S.
673 (1986)." Farley, 2008 WL 227870, at *1.
-6-
James had testified that he did not know May. On cross-
examination, Farley wanted to show this testimony was false by
questioning James about his relationship to Sarah Zene, a former
drug runner who was going to testify that she had delivered drugs
for James to May and that the two knew one another. The trial
judge allowed James to invoke his Fifth Amendment privilege to
block this line of questioning.
The Supreme Judicial Court held that the trial judge
should have allowed the questioning because in its view James had
waived the privilege by testimony he had given in the first trial;
but, the SJC found the error harmless beyond a reasonable doubt
under Chapman v. California, 386 U.S. 18 (1967), because Zene
herself testified in the second trial that she had delivered drugs
for James to May and that the two knew one another. The SJC said
that the cross-examination would at best have been cumulative.
Again, the SJC gets deference under AEDPA so, strictly
speaking, the question is not our own judgment about Chapman and
Van Arsdall but the reasonableness of the SJC's application, see
Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003); Hurtado v. Tucker,
245 F.3d 7, 20 (1st Cir.), cert. denied, 534 U.S. 925 (2001),
substituting a more deferential form of harmless error review on
habeas. See generally Fry v. Pliler, 127 S. Ct. 2321, 2327-28
(2007); Brecht v. Abrahamson, 507 U.S. 619 (1993). In all events,
we would reach the same decision ourselves.
-7-
Farley does not claim that the cross-examination was
designed to do anything other than attack James' credibility. His
credibility was relevant since Farley--seeking to suggest that
James might have committed the crime--had to challenge his denial
of involvement. But Farley's counsel was able to raise serious
questions about James' credibility on cross-examination through
evidence of his prior criminal conviction and prior inconsistent
statements. When Zene then testified that James did know May, she
added a further contradiction and supplied the information that
Farley had wanted to elicit on cross-examination.
Doubtless it is often best to have the witness being
impeached made on cross-examination himself to admit he was lying;
but (as we have explained) James' general credibility was amply put
in question. It is pure speculation to think that he would have
admitted to knowing May after flatly denying it; and, if he had, it
would have been an admission to a fact to which Zene herself
testified. There is no reason whatever to think that cross-
examination would have changed the result.
In Van Arsdall, the Court mentioned a number of factors
bearing on an assessment of harmlessness, including the importance
of the testimony foreclosed, whether it was cumulative, the extent
of cross-examination otherwise permitted, "and, of course, the
overall strength of the prosecution's case." 475 U.S. at 684.
Here, the excluded cross-examination was on a collateral issue--
-8-
that is, for impeachment and not the merits--and largely
cumulative; it is worth adding that the prosecution's case was
strong.
Although no eye witness saw Farley commit the murder, she
alone had been observed at the scene, there was arguable evidence
of a quarrel between the women, both the dark patch and the mingled
blood samples linked Farley to the crime, and her inconsistent
statements enhanced suspicion. By contrast, nothing directly
linked James to the crime beyond Farley's prior claims that James
had stabbed both women--a claim presented to the jury only through
her prior testimony and statements to the police. See note 2,
above. The chance of shifting blame to James was slight indeed.
The denial of the writ is affirmed.
-9-