United States Court of Appeals
For the First Circuit
No. 16-2167
EBER RIVERA,
Petitioner, Appellant,
v.
MICHAEL A. THOMPSON, Superintendent,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Lipez, Circuit Judges.
Benjamin Brooks, with whom Good Schneider Cormier & Fried was
on brief, for appellant.
Todd Michael Bloom, Assistant Attorney General, with whom
Maura Healey, Attorney General of Massachusetts, was on brief, for
appellee.
January 9, 2018
LIPEZ, Circuit Judge. Eber Rivera appeals from the
district court's denial of his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. Rivera was convicted in Massachusetts
state court after a jury trial on charges arising from the stabbing
of Robert Williams during an altercation between the two men.
Rivera contends that his Sixth Amendment right to the effective
assistance of counsel was violated when his trial counsel: (1) did
not move to suppress inculpatory statements he made in response to
questions from a police officer while in custody; and (2) failed
to introduce at trial evidence promised in her opening statement
that a third party committed the stabbing. Because we conclude
that trial counsel's failure to move to suppress Rivera's
statements to the police officer constituted ineffective
assistance of counsel under clearly established law, we reverse
and remand with instructions to grant the writ. We do not reach
the other ground on which Rivera bases his Sixth Amendment claim.
I.
A. Factual Background
Rivera was indicted by a grand jury in Middlesex County,
Massachusetts, for armed assault with intent to murder (count I),
assault and battery by means of a dangerous weapon causing serious
bodily injury (count II), and assault and battery upon a public
employee (count III). See Mass. Gen. Laws ch. 265, §§ 13D, 15,
15A(b). The first two charges stemmed from a fight in the early
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morning of December 16, 2007, during which Williams was stabbed.
The third stemmed from an altercation with a police officer at the
police station after Rivera was arrested.
At the six-day trial, the jury was presented with the
following testimony. Rivera, Williams, Ana Reyes, Josue Gonzalez,
and Robert Zonghi were gathered at Reyes' apartment drinking,
talking, and playing dominos. Gonzalez testified that he left the
room where Rivera and Williams were sitting for a few minutes.
When he returned, the atmosphere in the room had changed. He
speculated that "[a]t some point something happened that kind of
triggered [Rivera]," who soon walked outside followed by Williams.
Gonzalez then saw through the window that Rivera and Williams were
engaged in a fist fight, but he did not see who initiated it.
Rivera's attempts to hit Williams were unsuccessful, and Williams,
who was bigger, quickly gained the upper hand. Gonzalez saw that
Williams had pinned Rivera to the ground and was punching him,
with Rivera in a position where he "couldn't do nothing." At that
point, "everybody went outside" to attempt to break up the fight.
Gonzalez did not see what happened next, but he heard Williams say
"I think he stabbed me," and saw him fall forward onto Rivera.
Gonzalez testified that he initially did not believe that Williams
had been stabbed because he did not remember Rivera having a knife,
and he did not see a knife during the altercation.
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Gonzalez and Zonghi brought Williams inside the
apartment. Zonghi testified that, by the time he came outside,
Williams was on the ground bleeding. Reyes testified that she did
not see what happened during the fight, but that she did see
Gonzalez and Zonghi helping Williams, who was bleeding from the
stomach and face, into the apartment. It was later determined
that Williams had been stabbed in the head, abdomen, and chest,
causing damage to his heart and liver and significant internal
bleeding and blood loss. Gonzalez and Reyes both testified that
they did not see Rivera following the stabbing.
After bringing Williams inside, Gonzalez called 911, and
Framingham Police Officer Arthur Sistrand, who was nearby,
responded to the call. Sistrand testified that he turned onto the
street where the altercation happened within thirty or forty
seconds of receiving the call, and he saw Rivera jogging across
the street away from the address where the stabbing had been
reported. Sistrand, who was in uniform, got out of his marked
police cruiser and ordered Rivera to stop, but Rivera continued
jogging on the sidewalk. Sistrand then drew his gun and ordered
Rivera to get on the ground. Rivera complied, laying in the street
in a prone position. Sistrand testified that he noticed that
Rivera's right hand was bleeding and called for backup.
With Rivera still on the ground and Sistrand's gun still
drawn, Sistrand asked Rivera what he was doing. Rivera responded
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that he "had a beef with a nigger." Sistrand then asked him why,
and Rivera responded that he had been "disrespected." Sistrand
asked Rivera for his name, but Rivera declined to give it, stating
that he was "too out of breath and too cold to respond." About
thirty seconds later, Sistrand asked Rivera how he had hurt his
hand, and Rivera said that he had cut it on a ring. After that,
Rivera "stated that he was cold, and he wasn't answering any more
of [Sistrand's] questions." Backup soon arrived and Rivera was
handcuffed and taken to the police station.
During booking at the police station, Sergeant Scott
Brown asked Rivera to remove his clothing that had blood on it so
that it could be processed as evidence. Rivera refused and became
combative, yelling at Brown and using racial slurs toward him.
When Brown tried to remove Rivera's sneaker, Rivera slapped his
hand away. Brown eventually removed Rivera's clothes, and DNA
testing later revealed that blood on Rivera's jeans belonged to
Williams.
At trial, the Commonwealth's theory of the case was
straightforward. It contended that Williams said something that
offended Rivera, leading Rivera to engage Williams in a fistfight
with the intent to stab and murder him. Rivera's counsel conceded
that Rivera had a fight with Williams, but argued that none of the
witnesses actually saw how the fight started or how the stabbing
occurred, and thus the prosecution had not proved beyond a
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reasonable doubt that Rivera committed the stabbing and that any
force used by Rivera was not in self-defense. She promised in her
opening statement that the jury would hear testimony that there
were two other people involved in an argument with Williams,
including "Mr. Ruiz," and that the jury was "going to hear
testimony that a Mr. Ruiz had a bat, and he was also wielding a
knife."1 Despite these promises, however, she did not elicit any
testimony that someone named Ruiz was present during the events in
question, nor did she elicit testimony that anyone present at the
scene of the altercation had a knife or a baseball bat. In her
closing argument, however, she again mentioned the presence of
"Mr. Ruiz," stating that "Mr. Rivera was present in the same way
that Mr. Gonzalez was, in the same way Mr. Zonghi was, in the same
way Mr. Ruiz was, in the same way Ms. Reyes was."
The jury found Rivera guilty of all three counts. He
was sentenced to nine to ten years in state prison for count II
(assault with a dangerous weapon), followed by five years of
supervised probation for counts I (armed assault with intent to
murder) and III (assault on a public employee).2
1 Counsel apparently intended to refer to Luis Diaz (a.k.a.
Frankie Alvarez), who was reported to be at the scene by several
of the trial witnesses when they initially spoke to police.
Evidently having trouble keeping the names of the men straight,
she also referred at one point to Rivera as "Mr. Gonzalez."
2 The Commonwealth recommended that the court sentence Rivera
to between ten and twelve years' imprisonment on the armed assault
with intent to murder charge and five years of probation on the
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B. Procedural History
Rivera appealed from his conviction. While the appeal
was pending, he filed a motion for a new trial pursuant to
Massachusetts Rule of Criminal Procedure 30, claiming that he had
received ineffective assistance of counsel because, among other
errors, his attorney had not moved to suppress his statements to
Sistrand and had failed to introduce the promised evidence that
"Mr. Ruiz" was at the scene of the stabbing wielding a knife. The
Massachusetts Superior Court denied the motion without a hearing
and without findings of fact or conclusions of law.
After Rivera appealed that decision, it was consolidated
with his direct appeal. The Massachusetts Appeals Court denied
the appeals in a summary decision. See Commonwealth v. Rivera,
966 N.E.2d 867 (Table), No. 10–P–1321, 2012 WL 1623373, at *1
(Mass. App. Ct. May 10, 2012). With respect to trial counsel's
failure to move to suppress the statements that Rivera made to
Sistrand, the court said only that "it was not ineffective
assistance for counsel to not move to suppress the defendant's
initial statements to the police where the questions did not
constitute interrogation for the purposes of Miranda warnings."
other two counts, to run concurrently. The court chose to instead
impose the total term of imprisonment on count II (assault and
battery with a dangerous weapon) and sentence Rivera to probation
on counts I and III because the possible jail time in the event
that Rivera violated probation on count I (armed assault with
intent to murder) was higher than it would be for count II.
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Id. at *1. Similarly, the court in one sentence disposed of the
claim that counsel was ineffective because she failed to introduce
promised evidence, finding that it "was a matter of tactics based
on how the Commonwealth's evidence unfolded and the lack of
corroboration for the third party's involvement." Id. The court
then concluded that, "[f]or these reasons, and for the reasons
included in the Commonwealth's brief at 13-39, the defendant was
not deprived of the effective assistance of counsel." Id. The
Massachusetts Supreme Judicial Court denied Rivera's petition for
further appellate review. See Commonwealth v. Rivera, 972 N.E.2d
23 (Table) (Mass. 2013).
In his petition to the district court for a writ of
habeas corpus, Rivera again argued that he was deprived of
effective assistance of counsel because trial counsel failed to
seek the suppression of his statements to Sistrand and because she
did not introduce the promised evidence of a third-party culprit
at the scene of the stabbing. The district court denied the
petition, see Rivera v. Thompson, No. 13-11789-IT, 2016 WL 4273180
(D. Mass. Aug. 12, 2016), but granted a certificate of
appealability pursuant to 28 U.S.C. § 2253(c). Rivera timely filed
this appeal.
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II.
A. Ineffective Assistance of Counsel Standard
To prevail on an ineffective assistance of counsel
claim, Rivera must show both that his "counsel's representation
fell below an objective standard of reasonableness" (the
performance prong), and that "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different" (the prejudice prong).
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
With respect to the performance prong, we inquire
"whether counsel's assistance was reasonable considering all of
the circumstances," id. at 688, evaluating the attorney's conduct
"from counsel's perspective at the time" and in light of
"prevailing professional norms," id. at 688-89. Because there is
"a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance," id. at 689, the
performance of trial counsel is deficient "only where, given the
facts known at the time, counsel's choice was so patently
unreasonable that no competent attorney would have made it," Knight
v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (internal quotation
marks omitted).
To succeed on the prejudice prong, it is not enough for
Rivera "to show that the errors had 'some conceivable effect on
the outcome,'" but he is also not required to "prove that the
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errors were more likely than not to have affected the verdict."
González-Soberal v. United States, 244 F.3d 273, 278 (1st Cir.
2001) (quoting Strickland, 466 U.S. at 693). Instead, "[a]
reasonable probability is one 'sufficient to undermine confidence
in the outcome.'" Id. (quoting Strickland, 466 U.S. at 694). In
essence, the prejudice inquiry is focused on "the fundamental
fairness of the proceeding." Strickland, 466 U.S. at 696.
B. Habeas Standard of Review
This case is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254. AEDPA
dictates that, in reviewing a state court adjudication on the
merits of the petitioner's federal claim, federal courts ask
whether the state court's 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)(1), or was based on "an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding," id. § 2254(d)(2). Pursuant to this standard, a "state
court's decision is not vulnerable unless it evinces some increment
of incorrectness beyond mere error." Magraw v. Roden, 743 F.3d 1,
4 (1st Cir. 2014) (quoting Leftwich v. Maloney, 532 F.3d 20, 23
(1st Cir. 2008)). When combined with Strickland's already "highly
deferential" standard for a trial attorney's conduct, 466 U.S. at
689, the AEDPA standard "is 'doubly' so," requiring the court to
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ask "whether there is any reasonable argument that counsel
satisfied Strickland's deferential standard." Harrington v.
Richter, 562 U.S. 86, 105 (2011) (quoting Knowles v. Mirzayance,
556 U.S. 111, 123 (2009)).
However, the AEDPA standard only applies when the state
court has addressed the merits of the petitioner's federal habeas
claim. See Gray v. Brady, 592 F.3d 296, 301 (1st Cir. 2010). Of
particular relevance here, when the state court has reached only
one prong of the test for ineffective assistance of counsel, the
other prong is reviewed de novo. See Rompilla v. Beard, 545 U.S.
374, 390 (2005); Dugas v. Coplan, 428 F.3d 317, 327 (1st Cir.
2005). The Massachusetts Appeals Court, having concluded that
Rivera did not satisfy the performance prong, did not reach the
merits of the prejudice prong.3 Thus, with regard to the
performance prong, Rivera must show that the state court's decision
"was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility
for fairminded disagreement." Harrington, 562 U.S. at 103. With
respect to the prejudice prong, however, we review de novo whether
3Its summary decision incorporates by reference pages of the
Commonwealth's brief that primarily focus on the deficiency of
Rivera's counsel's performance but cursorily argue in the
alternative that Rivera did not satisfy the prejudice prong.
However, because the court expressly stated that it was deciding
Rivera's ineffective assistance of counsel claim on the
performance prong, we do not treat its incorporation of the
Commonwealth's brief as reaching the merits of the prejudice prong.
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the effect of any error by Rivera's attorney is sufficient to
undermine our confidence in the jury's verdict.
Where the district court in a federal habeas case does
not undertake independent factfinding, as was the case here, "we
are effectively in the same position as the district court vis-à-
vis the state court record," and thus we review the district
court's entire decision, including its application of the AEDPA
standard, de novo. Pike v. Guarino, 492 F.3d 61, 68 (1st Cir.
2007).
III.
Rivera argues that Sistrand's failure to administer
Miranda warnings before questioning him was such a clear violation
of his Fifth Amendment rights that his attorney's failure to move
to suppress his statements on that ground "fell below an objective
standard of reasonableness." Further, he argues that, because the
statements amounted to a confession that he was involved in the
altercation and were the only direct evidence of his intent in
stabbing Williams, the failure to move to suppress them was
prejudicial. We consider each prong of the Strickland analysis in
turn.
A. Performance
Under the familiar rule of Miranda v. Arizona, a suspect
who is subject to "custodial interrogation" must first be informed
of his Fifth Amendment privilege against self-incrimination and
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his right to an attorney to safeguard that privilege. 384 U.S.
436, 444, 469 (1966); see Johnston v. Mitchell, 871 F.3d 52, 57
(1st Cir. 2017). The remedy for a violation of Miranda's
"prophylactic rules, in the ordinary case, is the exclusion of
evidence impermissibly gathered as a result of the violation."
Johnston, 871 F.3d at 58. Here, it is undisputed that Sistrand
did not administer Miranda warnings before questioning Rivera when
he confronted him on the street. Thus, the issue of the deficiency
of counsel's performance turns in the first instance on whether
any "competent attorney" would nonetheless "think a motion to
suppress would have failed." Premo v. Moore, 562 U.S. 115, 124
(2011). Under AEDPA, Rivera has the burden of showing that the
Massachusetts Appeals Court's answer to this question "was so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement." Harrington, 562 U.S. at 103.
1. Custody
Miranda's protections apply once "a person has been
taken into custody or otherwise deprived of his freedom in any
significant way." Beckwith v. United States, 425 U.S. 341, 347
(1976). "In determining whether an individual was in custody," we
assess "all of the circumstances surrounding the interrogation,"
with the "ultimate inquiry" being "whether there was a formal
arrest or restraint on freedom of movement of the degree associated
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with a formal arrest." Stansbury v. California, 511 U.S. 318, 322
(1994) (per curiam) (internal quotation marks and alterations
omitted).
Although the Commonwealth's brief to the Massachusetts
Appeals Court argued that Rivera was not in custody when he made
the statements to Sistrand, the court did not expressly address
that argument, and appellee has not developed any argument in
federal court that Rivera was not in custody at the time of his
statements to Sistrand or that counsel reasonably could have
believed on that basis that a suppression motion would fail. See
Rivera v. Thompson, No. 13-11789-IT, 2016 WL 4273180, at *8 (D.
Mass. Aug. 12, 2016) ("Neither Respondent nor the Massachusetts
Appeals Court dispute that Rivera was in custody while lying face
down on the street with an officer, with his gun drawn, standing
over him."). Appellee has therefore waived those arguments. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding
that party's failure to develop argument in appellate brief results
in waiver).
In any event, pre-trial events substantially undermine
the reasonableness of any belief by Rivera's counsel that a motion
would not be successful because Rivera was not in custody.
Although Rivera's counsel did not move to suppress Rivera's
statements to Sistrand, she did move to suppress physical evidence
and several other statements made by Rivera at the police station.
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A suppression hearing was held during which Rivera's counsel
elicited detailed testimony from Sistrand regarding his encounter
with Rivera to support the argument that the physical evidence
should be suppressed. At that hearing, the court expressly agreed
with the contention that Rivera was in custody at the time Sistrand
ordered him to the ground, even though he had not yet been
arrested, stating, "I accept that the defendant is in custody from
the minute he's placed at gunpoint on the ground." That the court
was receptive to the argument that Rivera was in custody at the
time he made the statements to Sistrand makes it even more
incomprehensible that his attorney failed to move to suppress the
statements before trial, particularly given the interrogative
nature of the questions asked by Sistrand.
2. Interrogation
The Massachusetts Appeals Court held that the failure to
move to suppress the statements was excusable on the ground that
"the questions did not constitute interrogation for the purposes
of Miranda warnings," Rivera, 2012 WL 1623373, at *1, and thus
trial counsel could reasonably believe it would be futile to file
a motion to suppress. That conclusion of the Court of Appeals is
clearly contrary to the Supreme Court's definition of
interrogation for Miranda purposes.
In Rhode Island v. Innis, 446 U.S. 291 (1980), the
Supreme Court held that the term interrogation in Miranda refers
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"not only to express questioning, but also to any words or actions
on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect." Id.
at 301 (footnote omitted). Appellee reads the second part of this
definition as a restriction on the first, arguing that express
questioning is interrogation "only when police conduct is
'reasonably likely to elicit an incriminating response from the
suspect.'" To the contrary, the definition of interrogation in
Innis encompasses any express question asked of a suspect in
custody, subject to a few narrow exceptions. See United States v.
Downing, 665 F.2d 404, 407 (1st Cir. 1981).
Here, although they were few in number, Sistrand asked
Rivera express questions, including "what are you doing?" and
"why?". We therefore do not need to determine whether Sistrand's
words or actions were the "functional equivalent" of express
questioning by evaluating whether his queries were "reasonably
likely to elicit an incriminating response." Innis, 446 U.S. at
301; see United States v. Montgomery, 714 F.2d 201, 202 (1st Cir.
1983) ("Since the questioning here was express, we have no occasion
to go farther. This was custodial interrogation."). In any event,
the questions "what are you doing?" and "why?" when asked of a
suspect who is seen fleeing from the direction of a stabbing and
is bleeding from a cut on his hand are clearly reasonably likely
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to elicit an incriminating response. Indeed, Sistrand's actions
-- drawing his gun and ordering Rivera to stop and lay on the
ground -- indicate that he suspected Rivera was involved in the
stabbing that he was investigating.4
Appellee suggests that the fact that Sistrand's
questions were "introductory" or "preliminary" precludes them from
being interrogation. However, there is no such exception to the
Supreme Court's definition of interrogation, nor does appellee
point to any cases recognizing one. Whether Sistrand questioned
Rivera soon after he encountered him on the street or hours later
at the police station, his express questions were still
interrogation under Innis. Therefore, the Massachusetts Appeals
Court's conclusion that Sistrand's questions were not
interrogation was clearly contrary to the Supreme Court's
definition of interrogation.
3. Routine Booking Exception
Strickland obliges us "to affirmatively entertain the
range of possible reasons . . . counsel may have had" for not
moving to suppress Rivera's statements to Sistrand. Cullen v.
Pinholster, 563 U.S. 170, 196 (2011) (internal quotation marks
omitted). The only such reason proffered by appellee is that
4 Sistrand stated at the hearing on Rivera's motion to
suppress that his decision to stop Rivera was based on "the nature
of the incident, the time of the morning, and what was put out
over the radio," which was that a stabbing had taken place nearby.
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counsel could reasonably have believed that Sistrand's questions
fell under the "routine booking" exception to the Miranda rule.
That assertion is implausible.
Appellee has failed to show as a threshold matter that
the aptly named routine booking exception would apply here, where
the questions were asked for investigative reasons, not routine
administrative purposes, before Rivera was arrested and booked.
The routine booking exception applies to "biographical data
necessary to complete booking or pretrial services." Pennsylvania
v. Muniz, 496 U.S. 582, 601 (1990) (plurality opinion) (internal
quotation marks omitted). In Muniz, the plurality applied the
exception to questions that were "requested for record-keeping
purposes only" and were "reasonably related to the police's
administrative concerns." Id. at 601-02 (internal quotation marks
omitted); see also United States v. Sanchez, 817 F.3d 38, 46 (1st
Cir. 2016) (holding that the exception applied where the officer
"asked only routine questions to help with the booking process" at
the police station); United States v. Reyes, 225 F.3d 71, 77 (1st
Cir. 2000) (holding that "requesting [the defendant's] name, date
of birth, and social security number" fell within the routine
booking exception). Indeed, appellee primarily relies on United
States v. Doe, 878 F.2d 1546, 1551 (1st Cir. 1989), where we held
that the exception did not apply to biographical questions asked
of an arrestee on a boat on the high seas, stating that "the
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administrative need for initial background questioning seems less
great here than typically present at a police station."
Moreover, although Sistrand did at one point ask Rivera
his name, his other questions went well beyond simple identifying
data to information that could be used as evidence of Rivera's
involvement in a crime. Unlike biographical questions asked during
booking, which "do not, by their very nature, involve the
psychological intimidation that Miranda is designed to prevent,"
Doe, 878 F.2d at 1551 (quoting United States v. Booth, 669 F.2d
1231, 1237 (9th Cir. 1981)), a police officer asking, with his gun
drawn, "what are you doing?" and "why?" to a suspect laying prone
in the street is precisely the type of coercive questioning that
implicates a suspect's Fifth Amendment rights.5 Rivera's attorney
therefore had no reason to believe that a motion to suppress the
statements would be futile.6
5 Additionally, there is "an exception to the exception" for
"[c]ases in which law enforcement officers have reason to know
that routine booking questions may indeed produce inculpatory
responses." United States v. Scott, 270 F.3d 30, 43 n.8 (1st Cir.
2001). The questions asked of Rivera here were clearly not routine
booking questions, but this exception makes counsel's failure to
move to suppress Rivera's answers even more inexplicable because
Sistrand had reason to know that questions asked under these
circumstances -- Rivera was seen running from the direction of the
address where the stabbing occurred, failed to stop when commanded
to do so, and was bleeding from his hand -- were likely to produce
an inculpatory response.
6 In addition to the routine booking exception, the Supreme
Court has recognized a public safety exception to the Miranda
requirement, which allows police officers to ask "questions
necessary to secure their own safety or the safety of the public."
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4. Application of the AEDPA Standard
The district court held that the Massachusetts Appeals
Court's ruling concerning Rivera's counsel's failure to move for
suppression, even if erroneous, was not so unreasonable that it
warranted relief under AEDPA. That holding takes the deferential
standards of Strickland and AEDPA too far. Although it is true
that assessing custodial interrogation is a fact-specific inquiry
often susceptible to reasonable differences of opinion, this is
not a close case. Posing the relevant AEDPA question, "whether it
is possible fairminded jurists could disagree" that the state
court's decision was inconsistent with a prior decision of the
Supreme Court, Harrington, 562 U.S. at 102, we conclude that no
fair-minded jurist could disagree that the Massachusetts Appeals
Court's holding was contrary to governing Supreme Court law
defining interrogation. Based on the plain statement of law in
Innis, there is no reasonable argument that the express questions
asked of Rivera with the purpose of ascertaining whether he was
involved in the stabbing to which Sistrand was responding were not
in fact interrogation. Nor is there any colorable argument that
the routine booking exception would apply to questions that are
neither routine nor asked for administrative purposes during
New York v. Quarles, 467 U.S. 649, 659 (1984). That exception is
not at issue here, where Sistrand's questions were directed at
investigating whether Rivera was involved in a crime, not
protecting his safety or the safety of others.
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arrest or booking. Thus, the Massachusetts Appeals Court's
conclusion that counsel's performance was adequate because she
could have reasonably believed that Miranda warnings were not
required under the circumstances at issue "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).
B. Prejudice
Rivera contends that the introduction of his responses
to Sistrand's questions was prejudicial for two reasons: (1) the
statements amounted to a confession that he was involved in the
fight with Williams, and (2) the statements were the only direct
evidence of his intent. With regard to his first argument,
although Sistrand's testimony that Rivera stated that he "had a
beef" with someone could be construed by the jury as Rivera
confessing his involvement in the fight with Williams, that effect
on the jury would not be prejudicial. Rivera's counsel did not
dispute at trial that he was involved in a fight with Williams,
and testimony of eyewitnesses at trial established that
involvement. Rivera's argument at trial instead focused only on
whether the government had proved beyond a reasonable doubt that
he committed the stabbing with the requisite intent to kill or
injure Williams. Thus, a confession that he was involved in the
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fight in some way, without more, does not "undermine confidence in
the outcome" of the trial.
Nonetheless, we are persuaded by Rivera's second
argument that his statement that he "had a beef" because he had
been "disrespected" provided crucial evidence of intent to murder
Williams and thus was sufficiently prejudicial that there is a
reasonable probability that trial counsel's error in failing to
move to suppress the statements affected the jury's verdict.
Rivera's intent was critical in this case for two
reasons. First, to convict him of armed assault with intent to
murder, rather than the lesser included offense of armed assault
with intent to kill, the jury had to find beyond a reasonable doubt
that Rivera acted with malice. Thus, a partial defense to the
armed assault with intent to murder charge was the presence of
mitigating factors showing that Rivera did not act with malice.
Second, as a complete defense to counts I and II, the jury was
instructed to acquit Rivera of armed assault with intent to murder
and assault with a dangerous weapon if it found that there was
evidence that he acted in self-defense and the government failed
to prove beyond a reasonable doubt that he did not do so. Rivera's
counsel's failure to suppress his statements had a prejudicial
effect on both of these defenses.
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1. Partial Defense of Absence of Malice
The elements of armed assault with intent to murder are
"assault and a specific intent to kill that equates with malice."
Commonwealth v. Johnston, 845 N.E.2d 350, 354 (Mass. 2006). The
Massachusetts Supreme Judicial Court has explained that "[m]alice
necessarily exists when specific intent to kill is proved and there
is no evidence of justification, excuse, or mitigation." Id.
Therefore, where there is evidence of mitigating factors, such as
"heat of passion induced by reasonable provocation, sudden combat,
or excessive force in self-defense," the Commonwealth must prove
the absence of mitigation beyond a reasonable doubt. Id. If the
Commonwealth proves the other elements of armed assault with intent
to murder but fails to prove the absence of mitigating factors, it
"reduces the crime from assault with intent to murder to assault
with intent to kill, a lesser included offense." Commonwealth v.
Vick, 910 N.E.2d 339, 350 (Mass. 2009). The elements of armed
assault with intent to kill are "assault, specific intent to kill,
and [a] mitigating factor." Id. (quoting Commonwealth v. Nardone,
546 N.E.2d 359, 365 (Mass. 1989)) (alteration in original)
(emphasis omitted).
Having concluded that there was evidence of mitigation,
the trial court instructed the jurors that, even if they decided
that Rivera stabbed Williams, they had to find the absence of
mitigating circumstances beyond a reasonable doubt to find him
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guilty of armed assault with intent to murder. Otherwise, the
court explained, the jury should convict Rivera of the lesser
included offense of armed assault with intent to kill. On the
second day of deliberations, the jury sent a note to the court
indicating that it had reached a verdict on two of the counts in
the indictment but was having difficulty deciding on a verdict for
armed assault with intent to murder. Although the jury ultimately
convicted Rivera of armed assault with intent to murder after it
was instructed to continue deliberating, the presence of
mitigating factors was obviously a central issue in the jury
deliberations because mitigation is the only difference between
armed assault with intent to murder and the lesser included offense
of armed assault with intent to kill.
Rivera's primary defense at trial was that the
Commonwealth had failed to produce any eyewitness testimony
regarding how the fight had started or what occurred during the
fight, and that it therefore had failed to prove beyond a
reasonable doubt the elements of the charged crimes, including
specific intent and the absence of mitigating factors. Without
Rivera's statements to Sistrand, the only evidentiary basis for
the Commonwealth's assertion that Rivera initiated the fight with
the intent to stab and kill Williams would have been Gonzalez's
ambiguous testimony that he thought something had "triggered"
Rivera. However, the jury may have disregarded or given little
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weight to Gonzalez's suggestion that Rivera started the fight
because Gonzalez was out of the room and did not actually hear
what was said between Rivera and Williams. Moreover, the only
eyewitness account of the fight itself was Gonzalez's testimony
that the larger Williams had the smaller Rivera pinned to the
ground and was punching him. Such testimony would permit the jury
to conclude that Williams was the aggressor and Rivera merely acted
"in the heat of passion" due to Williams' provocation. See
Commonwealth v. Acevedo, 845 N.E.2d 274, 283, 284 (Mass. 2006)
(describing "reasonable provocation" as when "a reasonable person
in the defendant's position would have felt an 'immediate and
intense' threat, and lashed out in fear as a result"); id. (stating
that "[a]t times, even a single blow from the victim can constitute
reasonable provocation" (quoting Commonwealth v. Amaral, 450
N.E.2d 142, 145 (Mass. 1983))).
Rivera's statements to Sistrand significantly change the
mitigating factors analysis. Even with Rivera's statements, the
jury had trouble deciding whether mitigating factors were present.
Without them, it is unlikely that the jury would have found beyond
a reasonable doubt that Rivera had not been reacting to Williams'
provocation. Rivera's admission that he "had a beef with a nigger"
because he had been "disrespected" provided crucial evidence to
corroborate Gonzalez's statement that something "triggered" Rivera
and reinforced the inference that Rivera initiated the fight. In
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turn, if the jury concluded that Rivera started the fight, Rivera's
statements strengthened the Commonwealth's argument that he did so
with malice and the specific intent to kill Williams, rather than
having been provoked by something Williams did.7 Indeed, the
Commonwealth seized on Rivera's statements in its closing
argument, asserting that Rivera started the fight with the
intention of stabbing Williams as retribution for being
"disrespected," and drawing a connection between Rivera's
statement that his "beef" was about being "disrespected" and
Gonzalez's testimony that something "triggered" Rivera before he
went outside.8
It is thus reasonably probable that, in the absence of
Rivera's statements, the jury would have found that the
Commonwealth had failed to prove the absence of mitigating factors,
7 Rivera's statement that he "had a beef with a nigger" was
especially prejudicial because Rivera used a racial slur to refer
to Williams, who, according to witnesses, was the only black person
present at the party. Brown testified that Rivera used the same
slur toward him at the police station after being arrested. The
testimony that Rivera twice used racial slurs could support a
finding by the jury that the stabbing was motivated by racial
animus. If the jury reached that conclusion, it would have another
reason to think that the stabbing was premeditated rather than
committed in the heat of the fight with Williams.
8 Specifically, the Commonwealth repeated Sistrand's
testimony that Rivera had said someone had disrespected him, and
then said: "Remember Josue Gonzalez? Something triggered Eber
Rivera. Something triggered that guy. Someone disrespected him."
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and Rivera would not have been convicted of armed assault with
intent to murder.
2. Self-Defense
In addition to instructing the jury on the lesser
included offense of armed assault with intent to kill, the court
gave the jury a self-defense instruction for both armed assault
with intent to murder (count I) and assault and battery with a
dangerous weapon (count II). Self-defense would be a complete
defense to both charges. The court concluded that a self-defense
instruction was appropriate based on its assessment that "the
defendant was on the bottom and [Williams] was on top" and
"[Williams] was getting the better of [Rivera]," and thus "the
jury could find on that evidence that Mr. Rivera used the knife in
self-defense." The court told the jurors that they must find
Rivera not guilty on each of the two counts if there was some
evidence that Rivera acted in self-defense and the Commonwealth
failed to prove beyond a reasonable doubt that Rivera did not act
in self-defense. The court defined self-defense as when "a person
in defendant's circumstances would reasonably believe that he was
about to be attacked and that he was in immediate danger of being
killed or seriously injured, and there was no other way to avoid
the attack."
Without Rivera's statements to Sistrand, Gonzalez's
testimony that Williams was dominating the fight, coupled with the
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inconclusive testimony regarding who started the fight, would make
it difficult for the jury to conclude that the Commonwealth had
proved beyond a reasonable doubt that Rivera did not act in self-
defense. That Williams followed Rivera outside and then was seen
beating him while he was on the ground would support a finding by
the jury that Williams started the fight and was close to seriously
injuring Rivera, who was unable to extract himself from the fight
because he was pinned to the ground. The jury therefore could
have concluded that Rivera had reason to believe that the only way
to stop the beating was to stab Williams, thus leading to a finding
that the Commonwealth had failed to prove beyond a reasonable doubt
that Rivera did not act in self-defense.
On the other hand, with Rivera's statements before the
jury, there was a reason for Rivera to initiate the fight -- he
was "disrespected" -- and to have formed the intent to stab
Williams before Williams had him on the ground. Because the jury
could infer from Rivera's statements to Sistrand that he was intent
on hurting Williams from the beginning of the fight, those
statements permitted it to find that the Commonwealth had proved
beyond a reasonable doubt that Rivera did not act in self-defense.
Therefore, trial counsel's error in not moving to suppress Rivera's
statements undermines our confidence in the jury's conclusion that
Rivera was guilty of armed assault with intent to murder and
assault and battery with a dangerous weapon.
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IV.
For the reasons set forth, we conclude that Rivera's
counsel's deficient performance was sufficiently prejudicial to
amount to a violation of his Sixth Amendment right to counsel, and
that the Massachusetts Appeals Court's decision to the contrary
was an unreasonable application of Supreme Court precedent.
Accordingly, we reverse the judgment of the district court and
remand with instructions to issue the writ of habeas corpus.
So ordered.
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Rivera v. Thompson
Court: Court of Appeals for the First Circuit
Date filed: 2018-01-09
Citations: 879 F.3d 7
Copy CitationsCombined Opinion