Opinion
CIVIL ACTION NO. 01-30213-MAP.
July 11, 2003
MEMORANDUM AND ORDER REGARDING PETITIONER'S MOTION FOR A WRIT OF HABEAS CORPUS AND RESPONDENT'S MOTION TO DISMISS (Docket Nos. 2 and 28)
I. INTRODUCTION
Petitioner Robert Francis ("Francis") seeks relief pursuant to 28 U.S.C. § 2254, arguing that he has been wrongly imprisoned following convictions on charges of (1) accessory before the fact to murder; (2) accessory before the fact to three armed assaults with intent to commit murder; and (3) accessory before the fact to three acts of assault and battery with a dangerous weapon. The respondent has moved to dismiss. For the reasons set forth below, the respondent's motion will be allowed and the petition will be dismissed.
II. FACTUAL BACKGROUND
This summary relies on Commonwealth v. Francis, 734 N.E.2d 315 (Mass. 2000). The Supreme Judicial Court's findings of fact are "presumed to be correct" under 28 U.S.C. § 2254(e)(1).
On February 28, 1995, Carlos Falcon ("Falcon") and three other men were shot outside the Kentucky Fried Chicken restaurant ("KFC") on State Street in Springfield, Massachusetts. Falcon died of a gunshot wound to the back of the head; the other three men survived the shooting. Prior to the incident, members of two Springfield gangs known as Los Solidos and the Original Family Organization ("OFO"), a subordinate group whose members aspired to be Los Solidos members, gathered in the 659 State Street apartment of Sharleen Alvarez. Six Los Solidos members were present: the petitioner, Luis Berrios, Victor Figueroa, Johnny Sanchez, Luis Concepcion and David Jiles. Several OFO members, Daniel Rodriguez ("Rodriguez"), Michael Borden, Jason Jiles and Sharleen Alvarez, were also present in the apartment. Rodriguez was "president" of OFO and the Commonwealth's key witness in the case against the petitioner.
At trial, the Commonwealth presented evidence that petitioner Robert Francis was the "chief enforcer" of Los Solidos. In this position, petitioner was responsible for maintaining the gang's guns, handling threats to the gang and (during so-called "wartime") working with the "warlord" to control the gang. Testimony at trial indicated that at the time of the shooting, the Los Solidos gang was in a state of "war" with the Latin Kings, a rival gang.
Rodriguez testified to the events the night of the shooting. Luis Concepcion and David Jiles entered the apartment and complained that Latin King members at a nearby KFC were "throwing signs" (i.e., displaying their hand signal) as an expression of their lack of respect for the Los Solidos gang. Some in the apartment urged retaliation, and Francis told everyone to calm down, saying, "We going [sic] to take care of this." Commonwealth v. Francis, 734 N.E.2d 315, 320. Francis met with Rodriguez, Borden, Jason Jiles and Berrios in the bathroom and told them, "If you can get those Kings, we got to do what we got to do." Id. Jason Jiles responded that he would address the situation, and Francis talked to Jiles and Borden alone after directing Rodriguez and Berrios to leave the bathroom.
After an interval, the three men left the bathroom, and Francis reassured Rodriguez he would take care of the problem. Jiles picked up a .22 caliber semiautomatic handgun and said, "I'm going to do this." Id. Before leaving the apartment, Jiles put on a hooded sweatshirt at Francis' direction. Borden left the apartment at the same time Jiles did; when Rodriguez asked where Borden went, Francis told him not to worry about it. Borden was known to carry a .38 caliber revolver.
Jiles returned to the apartment and said that the people at the KFC were not Kings. Francis responded, "They Kings. They Kings. Go and do what you got to do and take care of it." Id. at 356. Jiles left the apartment again. Near the KFC, Falcon was standing behind his car; his three friends sat inside. A man matching the description of Borden approached them and, after a brief verbal exchange, shot and wounded the three men in the car. Jiles approached the group from the rear and fatally shot Falcon in the back of the head.
Jiles was tried separately and convicted on charges of homicide and armed assault. His conviction was affirmed by the SJC in Commonwealth v. Jiles, 698 N.E.2d 10 (Mass. 1998). Borden pled guilty to second degree murder, conspiracy to commit murder, and three charges of assault and battery by means of a dangerous weapon. Berrios also pled guilty to charges of accessory before the fact to second degree murder, three charges of armed assault with intent to murder and a charge of assault and battery by means of a dangerous weapon.
Jiles and Borden returned to the apartment and were congratulated by the others. When a Los Solidos member complained that the shooting was a bad idea, Francis said, "[t]hey'll never figure this one out. Everybody keep quiet." Id. Some of this conversation was overheard by Springfield police officers who were outside the apartment responding to the shooting. The police entered the apartment and arrested Rodriguez on an outstanding warrant. Francis was arrested two months later after Rodriguez implicated him in a statement to the police.
Petitioner has made claims regarding four aspects of the trial. This memorandum will address each of these.
1. Co-Defendant Jiles' Statement
The Commonwealth filed a pretrial motion seeking permission to introduce at trial a statement to the police made by co-defendant Jason Jiles. The statement inculpated Francis and quoted statements Francis allegedly made the night of the shooting. The trial court judge denied the Commonwealth's motion and excluded this statement from evidence. Jason Jiles was not called as a witness at trial, nor was his statement offered into evidence.
During the cross examination of Francis, however, the Commonwealth questioned Francis on his conversation with Jason Jiles on the night of the shooting. After Assistant District Attorney ("ADA") Howard Safford asked the defendant if he told Jason Jiles to "go light up the car" before the shooting, the judge called counsel to sidebar. The trial transcript of the cross examination of Francis on this issue and the sidebar reads as follows:
Q: Do you recall having a conversation with him [Jason Jiles], sir, where you said, "Light up the car"?
A: Never told him nothing like that.
Q: You recall Jason Jiles — are you aware that Jason Jiles gave a statement?
A: Yes.
Q: You've seen it.
A: I think so, yes.
Q: And, sir, you don't recall telling Jason Jiles to "go light up the car"?
A: No. I don't recall that, no.
Q: You don't recall telling Jason Jiles, sir —
MR. SAFFORD: Your Honor, may I have a moment.
THE COURT: Mr. Safford, I think we're going to take a 10-minute recess.
MR. SAFFORD: All right, your Honor. Thank you.
THE COURT: Could I see counsel.
BENCH CONFERENCE:
THE COURT: Look just — now, I'll agree you have a right in cross-examination to ask him things that he has a good faith — you have a good faith reason to believe —
MR. SAFFORD: Yes.
THE COURT: — were said. That's fine.
MR. SAFFORD: Yes.
THE COURT: But not if you're suggesting it's coming out of his statement which I have excluded. By "his statement" I mean —
MR. JACOBSON: Jason Jiles.
THE COURT: Jason Jiles.
MR. SAFFORD: Well, your Honor, why would I not have a good faith basis for believing that's what he said if that's in his statement?
THE COURT: You can ask him if he said it, that is — "did you say this" to whatever your asking.
MR. SAFFORD: I see. As a follow-up here, your Honor, I don't intend to impeach him with the statement, if that's what you mean.
THE COURT: Well, my point was —
MR. SAFFORD: Yes.
THE COURT: I think it looks kind of obvious to the jury that you're looking at — you just asked him about a statement, "You've seen Jason Jiles' statement, haven't you?"
MR. SAFFORD: Okay. Yes.
THE COURT: Okay? And he said he had.
MR. SAFFORD: Well, yes.
THE COURT: And now, you take out this piece of paper which quite apparently is that statement.
MR. SAFFORD: Okay.
THE COURT: And you're asking him things or about to ask him something from that statement.
MR. SAFFORD: That's correct.
THE COURT: Okay. You can ask, but do not make it apparent when the jury comes back that you're reading from the statement of Jason Jiles.
***
THE COURT: You can have an outline of the statement in front of you. [I] just don't want the implication to get across to the jury that you're reading from the statement of Jason Jiles. You have your own notes and that could include all the statements that you have.
MR. JACOBSON: Your Honor, along these lines, if the preliminary question's "Have you read so and so's statement", and then the follow-up question is, "Did you say this" then —
THE COURT: That's the point that disturbed me.
MR. JACOBSON: Whether or not they've actually —
MR. SAFFORD: Actually, your Honor, I've been getting objections to foundation questions throughout this trial, so I try to lay somewhat of a foundation to know he has a familiarity because, rest assured, the objection would be there's no basis to know that he knows that. So I —
THE COURT: I recognize.
Mr. SAFFORD: — two edged sword.
THE COURT: I recognize that there is a basis. At least I think there is.
(Docket No. 3 at A-214-218).
The following day the judge denied defense counsel's motion for a mistrial on the basis that this questioning regarding the Jiles statement violated the defendant's right of confrontation. The cross examination of Francis continued and the ADA asked Francis a series of seven questions derived from the Jiles statement. Defense counsel objected to each of these questions. The questions were as follows: (1) Did the defendant recall asking Jiles when he came back to the apartment after the incident at the KFC what he did with the gun? (2) Did Jiles tell the defendant that he disposed of the gun in the wooded area behind the apartment block? (3) Did the defendant recall telling Jiles after he came back from the KFC not to answer the phone and not to take any beeper calls? (4) Did the defendant recall that, after Jiles went out of the apartment the first time, Jiles came back saying he couldn't do it, that "It's too hot out there," that the apartment was too hot, that "Eddie the narcotic is out there and he knows Sharleen real well."? (5) Did the defendant recall saying to Jiles, "Them are Kings. Them are Kings. Get back down there. Do what you gotta do. Go take care of it."? (6) Did the defendant recall Jiles changing his clothes after the shootings? and (7) Did the defendant recall Luis Concepcion and David Jiles running into the apartment and telling him that the Latin Kings were across the street? (Docket No. 3 at A-278-84, 289).
After these questions, the judge called counsel to sidebar and stated that it was obvious that the prosecutor was reading from the Jiles statement as he put these questions, and that some of the questions reflected statements that were not testified to during the trial. The judge at that point instructed the prosecutor to stop using the Jiles statement or anything from that statement. (Docket No. 3 at A-281-82)
The SJC found that several of the questions were proper since either the defendant himself had previously testified to them or Rodriguez had testified to them. Francis, 734 N.E.2d at n. 7. The SJC ultimately found that four questions were of concern, (1) the question about "light[ing] up the car"; (2) the question about what Jiles did with the gun; (3) the question about whether Jiles told the defendant that he discarded the gun in the wooded area behind the apartment block; and (4) the question about Jiles not answering his phone or beeper.
The SJC examined these four statements individually and determined that under Douglas v. Alabama, 380 U.S. 415 (1965), it was improper for the prosecutor to cross examine Francis using the inadmissible extrajudicial, incriminating statements of Jiles, a separately tried codefendant who did not testify at Francis' trial. The SJC found that a confrontation clause violation occurred. However, the court found that no unfair prejudice resulted from the prosecutor's use of the Jiles statement, and therefore, no reversal of the convictions on this ground was appropriate.
The court concluded that the Jiles statement to the effect that Francis told him to "light up the car" was not properly objected to by defense counsel. The prosecutor asked the defendant the question twice before the judge, sua sponte, called counsel to sidebar to question the prosecutor's use of the Jiles statement. It was not until the next day that defense counsel moved for a mistrial on this basis. Given the lack of objection, the appellant's confrontation clause argument was reviewed under the standard requiring "a substantial likelihood of a miscarriage of justice."
The SJC found that the "light up the car" question did not create such a substantial likelihood. The court noted that the defendant, in fact, denied telling Jiles to "light up the car," and the judge later instructed the jury, in essence, that a negative response to a leading question on cross examination eliminated any possibility that the premise of that question could be considered as evidence. He reminded the jury of this rule in his charge, and the prosecutor did not refer to any "light up the car" statement in his closing argument.
With respect to the other three questions, which defense counsel did properly object to, the SJC applied the harmless error standard underCommonwealth v. Vinnie, 698 N.E.2d 896, 900 (Mass. 1998). The court found that the question whether the defendant recalled Jiles telling him what he did with the gun was harmless beyond a reasonable doubt, because it incriminated Jiles only and did not relate to the charges against Francis.
Similarly, the SJC found the other two questions (did the defendant recall asking Jiles about the gun, and did he recall telling Jiles not to answer his phone or beeper) were also harmless beyond a reasonable doubt, because they did not bear on the charges against the defendant. Since the defendant was charged as an accessory before the fact to murder and other felony assaults, his statements after the shooting were not directly relevant. The SJC further found that the trial judge clearly instructed the jury that defendant's conduct prior to the shooting was the relevant focus of the trial.
Finally, the court determined that the errors in permitting the Commonwealth to ask the questions were harmless because the statements were cumulative of the Rodriguez testimony and did not strengthen the prosecution's case significantly. In sum, the SJC determined that although the line of questioning based on the Jiles statement constituted a confrontation clause violation, the errors permitting the questioning were harmless. 2. Cross Examination of Commonwealth Witness Rodriguez
The SJC's finding of a confrontation clause violation appears to have been generous to defendant. In fact, from the record it is clear that the jury was never actually given, or informed directly of the contents of, any statement by Jiles. Rather, the prosecutor, as noted, asked the witness whether he was aware that Jiles made a statement and then, for at least a portion of his cross examination, allowed the jury to observe him reading from a document they might well have inferred was Jiles' statement. As the state trial judge noted, no rule of evidence prevents a prosecutor from asking a defendant on the stand whether he made particular statements, provided the prosecutor has a good faith basis for believing the defendant may have made the statements. The problem addressed by the trial judge was the prosecutor's dubious tactic of reading from an inadmissible document in order to telegraph the fact of its existence to the jury. The document itself was never placed in evidence.
At trial, the petitioner's attorney was prohibited from cross examining the Commonwealth's chief witness, Rodriguez, on his address and place of employment. Defense counsel was permitted to question Rodriguez as to whether he lived in Western Massachusetts or Connecticut, whether he was engaged in employment other than selling drugs and whether his relatives in Hartford had introduced him to gangs. On direct, Rodriguez testified that he was employed as a cook, was no longer involved with gangs, had moved from Springfield and had not sold drugs. Commonwealth v. Francis, 734 N.E.2d 315, 321-22.
Upon review, the SJC found that the trial judge properly balanced the defendant's right to cross examine the witness with the danger that revealing his specific home address and place of employment posed to the cooperating witness. The trial court carefully considered the defendant's need to question the witness on these issues and the physical danger the witness might be placed in by having to disclose his personal information.
3. Subsequent Firearm Issue
At trial, the Commonwealth questioned the defendant about illegally possessing a handgun and his prior arrest on this charge. Defendant had been acquitted of this charge and he denied ever committing this crime. The defense objected to the ADA's cross examination of the defendant on this previous arrest and moved for a mistrial on this basis. The judge, in response, stopped all questioning on this issue and instructed the jury that the acquittal on the charge was binding. The ADA did not continue this line of questioning or mention it in closing argument. The judge, as noted, also instructed the jury during the prosecutor's cross examination that a witness' negative response to a leading question rendered improper any consideration of the premise contained in the question. Id. at 322.
The SJC found that the trial judge properly exercised his discretion in denying the defendant's motion for a mistrial on this issue. Although the SJC concluded that the prosecutor had improperly questioned the defendant on his alleged unlawful possession of a firearm, the court found that this misconduct could not have influenced the jury.
The SJC noted the fact that the defendant denied that he possessed the firearm, the fact that defendant testified that he was acquitted on the charge, the fact that the prosecutor stopped this line of questioning when the judge instructed to and did not raise the issue again or argue it in closing, and the fact that the judge instructed the jury during cross examination and in his charge that since the defendant was found not guilty of the possession charge they were required to find that he had not possessed the firearm as alleged. Id. at 322-23.
4. Excused Juror
On the first day of deliberations, juror 5-2, Onida Montanez, informed the trial judge, on voir dire in the presence of the defendant and counsel, that she was apprehensive about returning a verdict because she lived in a neighborhood where gang members were present. She also stated that she told the other jurors about her fears.
The SJC found that the trial judge determined that the juror's problem was not related to her views on the evidence of the case but instead arose from her personal concerns. The trial judge discharged the juror for "good cause", substituted an alternate juror for juror 5-2, and instructed the jury that the reason for discharging the juror was unrelated to her views on the case or her relationship with the other jurors. Commonwealth v. Francis, 734 N.E.2d 315, 328.
III. PROCEDURAL BACKGROUND
The timeline of this case is as follows. On February 28, 1996, Francis was convicted by a jury as an accessory before the fact to murder, an accessory before the fact to three armed assaults with intent to commit murder, and an accessory before the fact to three acts of assault and battery with a dangerous weapon. He was sentenced to life imprisonment and three concurrent twelve to fifteen year sentences.
On March 7, 1996, Francis appealed his conviction. On October 22, 1998, while his appeal was pending, Francis filed a motion for a new trial based on newly discovered evidence. The motion for a new trial was remanded to the Hampden County Superior Court, and all appellate proceedings were stayed. On March 22, 1999, the Superior Court denied the motion for a new trial and Francis appealed that ruling. On August 22, 2000, the SJC affirmed the convictions as well as the Superior Court's denial of the motion for a new trial. Commonwealth v. Francis, 734 N.E.2d 315 (Mass. 2000). Francis filed a petition for a rehearing on September 6, 2000; and the SJC denied this petition on the same day.
This petition for writ of habeas corpus was filed on November 28, 2001. The respondent moved to dismiss the petition, and the court allowed the motion the with respect to claims 5, 6, and 7 of the petition on the ground that these claims had not been exhausted. Francis thereafter chose to amend his petition to include claims 1 through 4 only.
IV. DISCUSSION
A. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d) permits federal courts to issue a writ of habeas corpus only if the underlying state adjudication:
(1) resulted in a decision that was contrary to, or involved in an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
The AEDPA requires this court to focus on the state court's decision upholding petitioner's conviction, asking "`whether the [state] court's application of the analytic framework dictated by the relevant Supreme Court precedents was objectively unreasonable' or contrary to that law."Mountjoy v. Warden, 245 F.3d 31, 35 (1st Cir. 2001) (quoting Williams v. Matesanz, 230 F.3d 421, 427-28 (1st Cir. 2000)).
Two separate analyses are required under the statute. A federal court must, first, determine if the state court's decision was contrary to federal law and, second, examine whether the state court's decision constituted an unreasonable application of the Supreme Court precedent. There are distinct tests for each of these determinations.
A state court decision is "contrary to" federal law, as determined by the United States Supreme Court, if the state court (1) directly contradicted a rule clearly articulated by the Supreme Court, or (2) confronted a set of facts that was materially indistinguishable from an earlier Supreme Court decision but arrived at a different result. See Williams v. Taylor, 529 U.S. 362, 406 (2000).
A state court decision will be set aside as an "unreasonable application" of Supreme Court precedent if the state court (1) identified the correct governing legal rule but unreasonably applied it to the facts, (2) unreasonably extended a legal principle to a new context where it should not have been applied, or (3) unreasonably refused to apply a legal principle to a new context were it should have been applied. See id. at 408; Mountjoy, 245 F.3d at 35.
An incorrect application of federal law is distinct from an unreasonable application of federal law. Thus, "a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather the application must also be unreasonable." Taylor, 529 U.S. at 411. The First Circuit has articulated this standard as follows: "Refined to bare essence, a state court decision is objectively unreasonable only if it `falls outside the universe of plausible, credible outcomes.'"Mastracchio v. Vose, 274 F.3d 590, 597 (1st Cir. 2001) (quoting O'Brien v. DuBois, 145 F.3d 15, 25 (1st Cir. 1998)).
B. ANALYSIS
As noted, Francis makes four arguments in support of his petition. First, he contends that he was denied his constitutional right to confront witnesses against him when the trial judge allowed the prosecutor to impeach him by using a nontestifying co-defendant's statement that was previously deemed inadmissible by the trial judge.
Second, petitioner asserts that he was denied his constitutional right to confront witnesses against him when the trial judge refused to allow petitioner's counsel to cross examine the key Commonwealth witness Rodriguez on his precise address and place of employment.
Third, the petitioner claims that his due process rights under the Fifth and Fourteenth Amendments were violated when the Commonwealth was permitted to cross examine him about a subsequent incident in which he was charged with carrying a firearm without a permit and was acquitted of this charge.
Fourth, petitioner alleges that his Sixth and Fourteenth Amendment rights were violated when the trial judge excused a juror who stated she was afraid to render a verdict in the case and expressed this fear to the other jurors, particularly since the judge refused to conduct a voir dire of the rest of the panel and denied petitioner's request for a mistrial.
As will be seen, none of these arguments provides adequate grounds forhabeas relief.
1. Questions Based on the Jiles Statement a) The "Light up the car" Statement
The prosecutor's manner in conducting his cross examination of the defendant (see n. 3, supra) while using the Jiles statement was disturbing; however, this confrontation clause violation (if any) does not provide grounds for the issuance of the writ of habeas corpus. Petitioner procedurally defaulted in state court and has not demonstrated cause and prejudice or established the likelihood of a miscarriage of justice. In Coleman v. Thompson, the Supreme Court found that,
[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Massachusetts Rule of Criminal Procedure 22 requires contemporaneous objection. Failure to object results in procedural default. Gilday v. Callahan, 59 F.3d 257, 271 (1st Cir. 1995). Here, there was no contemporaneous objection by defense counsel to the cross examination of Francis using the Jiles statement "light up the car". The SJC's review of this claim under the "substantial risk of miscarriage of justice" standard did not constitute a waiver of the contemporaneous objection requirement. See Tart v. Massachusetts, 949 F.2d 490, 496 (1st Cir. 1991) (state appellate review under Massachusetts miscarriage of justice standard does not amount to state waiver of contemporaneous objection rule); see also Puleio v. Vose, 830 F.2d 1197, 1200 (1st Cir. 1987) (same).
This procedural default has not been cured by any showing of cause for the default or prejudice; nor has the petitioner shown that a refusal to consider the merits of the constitutional claim will result in a miscarriage of justice. See, e.g., Coleman v. Thompson, 501 U.S. at 750;Burks v. DuBois, 55 F.3d 712, 716 (1st Cir. 1995).
In order to show cause, a petitioner must meet specific requirements; to excuse a procedural default, a petitioner's cause must relate to an objective factor, external to the defense, which thwarted (or at least substantially obstructed) the efforts of the defendant or his counsel to obey the state's procedural rule. Burks, 55 F.3d at 717. Cause is not met by mere attorney error that does not rise to the level of constitutionally ineffective assistance of counsel. Id.
From a review of the trial record, this court can only conclude that — to the extent a confrontation clause violation actually occurred — defense counsel made an error in failing to object contemporaneously. Although a sidebar was held, and the judge addressed the initial use of the Jiles statement, defense counsel did not make an objection on the record.
The error, such as it was, may be explained by the fact that it was unclear that the prosecutor had actually done something requiring an objection. As noted, supra n. 3, the confrontation clause violation here is hardly glaring.
Moreover, the petitioner has not shown that failure to consider his claims would result in a fundamental miscarriage of justice. The miscarriage of justice exception is reserved for situations where the petitioner can make a colorable showing of factual innocence. McCleskey v. Zant, 499 U.S. 467, 495 (1991). The First Circuit notes that, "a habeas petitioner need not prove his innocence beyond all doubt in order to reach the safe haven of the miscarriage exception: it suffices if the petitioner can show a probability that a reasonable jury would not have convicted but for the constitutional violation." Burks, 55 F.3d at 718.
The petitioner has not made an adequate showing of factual innocence. Petitioner argues that the use of the Jiles statement supported the testimony of Rodriguez, the only witness against him. This alone is not enough to demonstrate a probability of actual innocence. As the Supreme Court articulated, "Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim." Schlup v. Delo, 513 U.S. 298, 316 (1995). Because petitioner has not shown that the procedural default barring federal habeas review of this claim will result in a miscarriage of justice, his habeas petition cannot be granted on this ground.
b) The Three Other Questions Based on the Jiles Statement
Neither can the petitioner's claim on the other three questions provide grounds for the grant of the writ. The questions regarding the three other statements were properly objected to by defense counsel, but the evidence obtained by this line of questioning could not have significantly affected the verdict.
Brecht v. Abrahamson, 507 U.S. 619 (1993) held that a federal habeas court was bound to uphold a state court judgment, notwithstanding a preserved constitutional error, as long as the error did not have a "substantial, injurious effect or influence on the jury's verdict." Id. at 638. The First Circuit has held that the standard articulated inBrecht is properly applied to cases arising under the AEDPA. Sanna v. Dipaolo, 265 F.3d 1, 15 (1st Cir. 2001).
Applying the Brecht standard, this court finds that the prosecutor's use of the Jiles statement in cross examining the petitioner on the three statements properly objected to (the question about what Jiles did with the gun, the question about whether Jiles told the defendant that he discarded the gun in the woods, and the question about Jiles not answering his phone and pager after the shootings) did not have a substantial, injurious effect on the jury's verdict.
Three factors establish the lack of impact of the three questions at issue. First, when the petitioner was asked whether he recalled these events on cross examination, he answered each of the three questions about these statements negatively. (Docket No. 3 at A-279-80). Second, this was not the first time that the jury had heard this information; Rodriguez had already testified to these events. Finally, these three questions went to the petitioner's conduct after the shootings. The trial judge instructed the jury to focus on the charges against the defendant — accessory before the fact — and not on the conduct of the petitioner after the shooting occurred.
This court concludes that any impact that this questioning had on the jury's deliberations was minimal and could not have had the substantial and injurious effect Brecht requires. The petitioner is not entitled tohabeas relief on the basis of the prosecutor's use of these three Jiles statements.
2. Cross Examination of Commonwealth Witness Rodriguez
The SJC's analysis of the trial judge's resolution of this issue was complete and proper. The Supreme Court has indicated that, where the safety of the witness is at issue, the trial judge may appropriately limit the scope of cross examination. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Here, the SJC found that the trial judge weighed the petitioner's right to cross examination against the real potential for gang retaliation, and "the judge sought and found a compromise that allowed sufficient disclosure while minimizing any danger to the witness." Commonwealth v. Francis, 734 N.E.2d at 322. This was an entirely proper application of the law.
3. Subsequent Firearm Issue
No basis exists for upsetting the SJC's reasoned determination that any error in allowing the prosecution to question the defendant on a prior unrelated firearm charge did not improperly influence the jury. Given the trial court's careful instructions to the jury on this issue and the negative answers given by the defendant during this line of questioning, the SJC's determination that the trial court properly exercised its discretion in denying the defendant's motion for a mistrial was entirely correct.
4. Excused Juror
Finally, no error occurred when the trial court excused a juror who stated she was afraid to render a verdict in the case and expressed this fear to the other jurors, even where the trial court declined to conductvoir dire on the rest of the panel and denied the request for mistrial.
The Supreme Court has stated that the phrase in § 2254(d)(1) "clearly established federal law, as determined by the Supreme Court of the United States" means "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 123 S.Ct. 1166, 1172 (2003). In Williams, the Court explicitly noted that "§ 2254(d)(1) restricts the source of clearly established law to this Court's jurisprudence." Williams v. Taylor, 529 U.S. 362, 412 (2000).
The SJC's determination that the juror was properly excused was not contrary to and did not involve an unreasonable interpretation of any clearly established Supreme Court law. The petitioner has not cited any Supreme Court precedent in support of his argument. Nor has the petitioner indicated what clearly established Supreme Court precedents the state court action was contrary to or what Supreme Court precedent the state court unreasonably interpreted. On its face, the trial judge's handling of this situation appears well within the bounds of reasonable judicial oversight.
As such, petitioner's claim based on this point cannot provide a basis for the issuance of a habeas writ.
V. CONCLUSION
For the reasons set forth above, respondent's motion to dismiss is hereby ALLOWED and petitioner's motion for a writ of habeas corpus is hereby DENIED. The clerk will enter judgment for the respondent.
It is So Ordered.