Opinion
CIVIL ACTION NO: 02-11382-DPW
August 6, 2003
MEMORANDUM AND ORDER
John Tague, a state prisoner, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254. Tague contends that his Fourteenth Amendment due process rights were violated when the Massachusetts state courts refused to order certain post-conviction discovery and authorized exclusion of an admission of guilt by a codefendant.
I. BACKGROUND
I summarize the facts, "the jury could have found," as determined by the Massachusetts Supreme Judicial Court. Commonwealth v. Tague, 434 Mass. 510, 511-13 (2001).
On the evening of October 26, 1996, Tague and a small group of friends were at the apartment of Larry Sullivan in Franklin, Massachusetts drinking beer and socializing. Late that evening, a group of friends, including Amy Tougas, arrived and told Tague and others that the group had been "kicked out" of a Halloween party in Norfolk. They also reported that one person dressed in a red devil costume had spit in Tougas's face as she left.
Infuriated by this report, Tague, Sullivan and the others decided to go "kick ass," and they proceeded to arm themselves with kitchen knives, baseball bats, pipes and belts before leaving the apartment. On their way to Norfolk, they attempted to recruit others as "reinforcements." Eventually numbering thirteen, the group, including Tague and Sullivan, arrived at the party. A fight broke out. Four guests were stabbed and others were kicked, punched and beaten. Jason Linsky, who was dressed in the red devil costume, suffered nine stab wounds, including five to his chest. While Linsky was lying on the ground, a white male fitting Tague's description was seen crouching over him delivering several downward blows. At the same time, a person fitting Sullivan's description was seen kicking Linsky. Linsky was later pronounced dead at the scene.
The defendant and half of the group of thirteen fled the scene. At some time soon thereafter, Tague told a convenience store clerk "I just fucked up some dude real bad. He's on his way to the hospital if he makes it that far." Later, Tague told Tougas that he "had stabbed the fool, the red devil," adding "I know I hit his heart."
Tague was indicted by a Norfolk County Massachusetts Grand Jury on December 4, 1996, charged with first degree murder, armed assault with intent to murder, numerous counts of assault and battery by means of a dangerous weapon, and intimidating a witness. At trial, the prosecution advanced theories of Tague's guilt as principal and as joint venturer with co-defendant Sullivan and others. The jury found Tague not guilty on the intimidation count, but guilty as to all remaining counts. On December 8, 1997, Tague was sentenced to life in prison for murder and a consecutive nineteen to twenty year term on the charge of armed assault with intent to murder. Tague was also sentenced to multiple nine to ten year sentences on the assault and battery by means of a dangerous weapon charges, to run concurrently with the sentence for armed assault with intent to murder. Finally, Tague was sentenced to a two and a half year house of correction sentence for assault and battery.
Tague filed a notice of appeal in the SJC that same day. The SJC stayed consideration of his appeal to allow Tague to file a motion for new trial.
On August 23, 1999, approximately two years after the verdict and sentencing, Tague filed a motion requesting that he be provided with funds for testing of the clothing of codefendant Sullivan, or that the Commonwealth conduct its own tests. On November 23, 1999, Petitioner filed a motion for post-trial discovery seeking to have the results of that testing disclosed to him. The trial judge denied that motion on December 22, 1999.
An article in the Boston Sunday Globe, Inmate says wrong man convicted in 1996 murder, July 11, 1999, appears to have provided some of the impetus for Tague's post-trial motions. In the article, Sullivan, serving nine to twelve years for involuntary manslaughter in connection with Linsky's death, claimed to take sole responsibility for the killing. He stated that he and others, including Tougas, had conspired to blame Tague for the killing, but that Tague was in fact innocent. Sullivan apparently gave this statement to the Globe reporter in the belief that, because he had already been tried for the crimes, "They can't take me and recharge me." The SJC rejected Tague's motion for a new trial based on the "new" evidence contained in the Globe article on the grounds that the statement was not admissible as a declaration against penal interest because, at the time he made the statement, Sullivan believed that he was immune from further prosecution. See Tague, 434 Mass. at 520.
On March 20, 2000, Petitioner filed a motion for new trial and a motion for reconsideration of his motion for discovery. The trial judge denied the motion to reconsider and the motion for new trial on March 24 and August 21, 2000 respectively. On September 20, 2000, Tague filed an appeal from the order denying post-conviction relief as well as from all subsidiary orders and rulings. The post-conviction relief appeal was subsequently consolidated with his direct appeal.
On July 10, 2001, the SJC affirmed the judgment and the denial of his motions for a new trial and post-trial discovery. Commonwealth v. Tague, 434 Mass. 510 (2001), cert. denied, 534 U.S. 1146 (2002).
II. DISCUSSION
Tague grounds his petition on two theories. First, he contends that the SJC decision denying his post-trial motion requesting post-trial discovery and or disclosure of the results of blood testing of Sullivan's clothing violated his due process rights. Specifically, Tague contends that the SJC's decision to require him to establish a prima facie case for relief, before allowing his motion for post-trial discovery, 434 Mass. at 519, set an unconstitutionally high standard. Second, Tague asserts that the SJC's determination that the trial court's exclusion of evidence — which might show that Sullivan admitted to stabbing the murder victim — was, although an error "of constitutional dimension," harmless constituted an unreasonable application of federal law. Before I consider each argument in turn, a summary of the applicable standard of review is appropriate to set the context.
A. Review of Habeas Corpus petitions
Tague's petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) Pub.L. No. 104-132, § 104, 110 Stat. 1214, 1219 (1996), and is therefore governed by its terms. "[Section] 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). Under AEDPA, a federal court may not issue a habeas petition "with respect to any claim that was adjudicated on the merits in State court proceedings" unless the state court decision: 1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or 2) "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); Taylor, 529 U.S. at 412-413; McCambridge v. Hall, 303 F.3d 24, 34-35 (1st Cir. 2002).
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than has the Supreme Court based on a set of materially indistinguishable facts. Taylor, 529 U.S. at 412-413.
Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from Supreme Court precedent but unreasonably applies that principle to the facts of the petitioner's case. See id. at 413. However, a state court's findings on factual issues "shall be presumed to be correct" and the petitioner bears the burden of disproving factual findings by "clear and convincing evidence." 28 U.S.C. § 2254 (e)(1); see McCambridge, 303 F.3d at 34-35; Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002) (presumption applies to facts as found by state appellate as well as trial courts).
In determining whether a state court decision violated these rules, the question is whether the decision was "objectively unreasonable." See Taylor, 529 U.S. at 411; Williams v. Matesanz, 230 F.3d 421, 426-27 (1st Cir. 2000). The First Circuit has parsed this requirement as involving a decision that is "so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes." Matesanz, 230 F.3d at 427, quoting O'Brien v. DuBois, 145 F.3d 16, 2425 (1st Cir. 1998). As the Supreme Court declared in Taylor, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." 529 U.S. at 411 (emphasis supplied.)
B. Refusal to allow post-conviction discovery
Applying these principles to Tague's petition, I conclude that the SJC decision was neither contrary to nor an unreasonable application of federal law. The governing precedent in this case is Brady v. Maryland, 373 U.S. 83, 87 (1963), and its progeny, in which the Supreme Court defined the rules controlling the disclosure of exculpatory evidence.See Strickler v. Greene, 527 U.S. 263, 281-82 (1999); United States v. Bagley, 473 U.S. 667, 682 (1985); United States v. Huddleston, 194 F.3d 214, 222 (1st Cir. 1999). Brady established that the failure to disclose exculpatory material may constitute a violation of a defendant's due process rights where that evidence is material to either guilt or punishment. 373 U.S. at 87. In Strickler, the Court defined the precise showing required to establish a due process violation; the Court stated that there are three components to a Brady violation: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. 527 U.S. at 281-82. Earlier, in Bagley, the Court explained that such evidence is "material" to a Brady determination if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." 473 U.S. at 682.
In reviewing Tague's appeal from the denial of his post-trial discovery motion, the SJC applied Rule 30(c)(4) of the Massachusetts Rules of Criminal Procedure which requires that post-conviction discovery may only be ordered where the movant has established a "prima-facie case for relief." See Tague, 434 Mass, at 519. Applying this rule, the SJC affirmed the denial of Tague's motion, explaining
The presence of Linsky's blood on Sullivan's clothing would not exculpate the defendant. It would not demonstrate that Sullivan alone stabbed Linsky or that he stabbed him at all. There was evidence from which the jury could have concluded that, if blood were transferred to Sullivan's clothes, it happened as he kicked Linsky. The defendant failed to meet his burden. There was no error.Tague, 434 Mass, at 519.
Tague contends that the SJC's use of the Rule 30(c) standard violated his due process rights because it is a "more onerous" standard than that set forth in applicable Supreme Court precedents. In support of this proposition, he cites Illinois v. Gates, 462 U.S. 213, 235 (1983). The citation is inapposite.
The principle for which Tague cites Gates, namely that establishing a prima facie case is a more onerous standard, appears within a discussion of the proper standard to be applied to the demonstration of probable cause for issuance of a search warrant. See Gates, 462 U.S. at 235.Gates, however, does not address the standard of proof required underBrady.
Moreover, Tague's citation to Gates relies on an analogy that is flawed at its root. Tague suggests that because Gates, he claims, holds that a prima facie case is more rigorous than a probability showing in the context of probable cause, the Supreme Court would be likely to insist on the same calculation of "reasonable probability" in the Brady context.Compare Bagley, 473 U.S. at 682, with Gates, 462 U.S. at 235-36. However, the Gates Court expressly rejected a direct parallel between the analysis of probable cause and "more formal legal proceedings." See Gates, 462 U.S. at 236. Thus the Gates Court stated:
The rigorous inquiry . . . and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our [prior decisions], cannot be reconciled with the fact that many warrants are — quite properly — issued on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings.Gates, 462 U.S. at 235-36 (emphasis added). In other words, Gates stands for the proposition that the standard of "probability" that must be applied in evaluating the propriety of a warrant is substantially less than must be applied in more formal legal proceedings, such as a motion for post-conviction discovery or evaluation of a Brady claim. See id. For this reason, even accepting the proposition that "probability" demands a lower quantum of proof than a prima facie case might require, it seems highly unlikely that the standard of probability articulated in theGates context — the grounds for a search warrant — would translate to the highly technical, formal, analysis of an alleged Constitutional violation.
Rather than appropriating the Gates standard of probability, I find the Supreme Court's formulation in Strickler and Bagley, cases which expressly address the standard to be applied in the Brady context, provide the appropriate standard here. Bagley held that a evidence would be material if "there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682. Likewise, as the Court explained in Strickler, "there is never a real `Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict."Strickler, 527 U.S. at 281 (emphasis added). The Massachusetts "prima facie" case standard derived from Mass. R. Crim. Pro. 30(c)(4), contrary to Tague's assertions, requires essentially the same showing as theBagley formulation, namely a demonstration evidence is likely to result in "relief," i.e. a different result.
I also conclude that the SJC did not unreasonably apply this standard to the facts before it on Tague's appeal. Specifically, the SJC concluded that Tague had not met his burden of showing that the evidence of blood testing of the Sullivan's jacket would have changed the result of the proceeding. See Strickler, 527 U.S. at 682. The SJC explained that the presence of the victim's blood on the Sullivan's jacket would not have exculpated Tague because "it would not demonstrate that [the co-defendant] alone stabbed Linsky or that he stabbed him at all." See Tague, 434 Mass. at 519. To put this another way, because Tague was charged as both a principal and joint-venturer in the murder of Linsky, 434 Mass. at 513, Tague would have needed to offer evidence tending to show that he, in fact, had nothing to do with Linsky's death in order to exculpate himself under either or both theories. As the SJC explained however, evidence of the existence of Linsky's blood on a co-defendant's jacket would not undermine Tague's guilt under either theory. See id.
In reaching this conclusion, the SJC found that the record showed that evidence was presented to the jury which could have explained the presence of the victim's blood on Sullivan's jacket. See Tague, 434 Mass. at 519. Likewise, other evidence including Tague's statements after the fight, and identifications of him at the scene — supported the jury's finding that Tague was guilty as a principal or joint venturer in the murder. See id. at 517. Thus, given the nature of the evidence Tague sought, I conclude that there was no "reasonable probability" that the disclosure of this evidence would have exculpated him, and therefore that the prima facie standard employed by the Massachusetts court was not unreasonably applied to Tague's case. See Bagley, 473 U.S. at 682.
Moreover, I note that there is some question whether the evidence sought by Tague satisfies the second prong of the Strickler test, namely that the evidence was suppressed by the State in advance of trial. See Strickler, 527 U.S. at 281-82; United States v. Huddleston, 194 F.3d 214, 222 (1st Cir. 1999) In his Supplemental Brief to the SJC, Tague conceded that a DNA test of the co-defendant's clothing was not sought, and the results not available, until after trial. Because the evidence was not available in advance of trial it follows that there could have been no suppression of this evidence by the State at trial. See Huddleston, 194 F.3d at 222.
Tague has not demonstrated that the state court's decision was "so offensive to existing precedent, so devoid of record support, or so arbitrary" as to place it "outside the universe of plausible, credible outcomes." See O'Brien, 145 F.3d at 25.
C. Refusal to allow Tague to elicit evidence of co-defendant's purported admission of responsibility for stabbing.
The second theory on which Tague grounds his petition for habeas relief concerns the SJC's determination that the trial court's exclusion of a purported nonverbal admission by co-defendant Sullivan, although erroneous, was harmless. See Tague, 434 Mass. at 517.
At trial, before calling witness Marlene Eich, Linsky's girlfriend, to testify, prosecutors filed a motion in limine to prevent Eich from being cross-examined as to a conversation she had with Sullivan at the scene of the melee. See id. at 515. Prosecutors sought to prevent Eich from testifying that, when she confronted Sullivan at the scene by saying "Larry . . . you stabbed my boyfriend," Sullivan had "turned around and smiled at her and nodded." See id. The trial judge excluded the evidence of Sullivan's apparent agreement with Eich's accusation on the grounds that there was no evidence to indicate that Sullivan knew at the time that Linsky was Eich's boyfriend. See id.
On appeal, Tague argued that Sullivan's response to Eich constituted a "declaration against penal interest" taking the form of an adoptive admission. The SJC agreed that Sullivan's response met the requirements of an adoptive admission and that it was error to exclude the statement.See id. at 517.
Applying the "harmless error" standard articulated in Commonwealth v. Adams, 416 Mass. 55, 58 (1993), the SJC explained that this error was harmless because "the Commonwealth's case against the defendant as joint venturer would have remained overwhelming." Tague, 434 Mass. at 517. The court explained that, "Sullivan's admission, if believed, was not a statement that he alone stabbed Linsky. That is, it did not tend to prove that Sullivan, and not the defendant, stabbed Linsky." See id. Consequently, the jury could reasonably have concluded, notwithstanding the Sullivan admission, that Tague, even if not solely guilty of Linsky's murder, was responsible for Linsky's death as a joint venturer. See id.
Tague contends however that the prosecution did not, in fact, argue its joint venturer theory to the jury "in any meaningful way." However, Tague makes no showing in support of this assertion. Indeed, he concedes that the trial judge instructed the jury on the joint venture theory, but asserts that the Commonwealth "urged the jurors to find the petitioner guilty as a principal and as the sole perpetrator of the murder."
The SJC rejected Tague's arguments that joint venture was not actually presented in the case because of the differential emphasis given in the prosecution's presentation of its alternate theories to the jury at trial. See Tague, 434 Mass. at 513. The SJC found, in fact, that the prosecutor announced in his opening that the Commonwealth was proceeding against Tague both as joint venturer and as principal and that the judge had instructed the jury as to both theories. See id.
The question, on habeas review, is whether the SJC decision, particularly its use of the harmlessness standard, was either contrary to or an unreasonable application of federal law. 28 U.S.C. § 2254 (d). The First Circuit has held that the harmless error standard under Brecht v. Abrahamson, 507 U.S. at 619, 637 (1993), governs habeas review after AEDPA. See Medina v. Matesanz, 298 F.3d 98, 101 (1st Cir. 2002) citing Sanna v. Dipaolo, 265 F.3d 1, 14 (1st Cir. 2001) (noting contrast between harmless error standard in habeas cases and "beyond a reasonable doubt" standard of review on direct appeal) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). As the Brecht Court explained, "Under this standard, habeas petitioners may obtain plenary review of the constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice." 507 U.S. at 637 (internal quotation omitted). The Brecht harmless error standard thus parallels the standards articulated inStrickler and Bagley in that the charged error must have resulted in actual prejudice such that the correction of the error could change the outcome of the case. See id. at 638. As the First Circuit has explained, the "actual prejudice" rule requires that a federal habeas court be bound to uphold a state court judgment, notwithstanding a preserved constitutional error, as long as the error did not have "a substantial, injurious effect on the jury's verdict." Medina, 298 F.3d at 101 (emphasis added), quoting Sanna. 265 F.3d at 14 (applying Brecht analysis to habeas claims, post-AEDPA); see Brecht, 507 U.S. at 637-38 (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
I conclude that the SJC applied the correct analysis of the trial error described here. See Brecht, 507 U.S. at 636 (noting that state courts apply Chapman "beyond a reasonable doubt" analysis of "harmless" trial errors, whereas federal courts undertaking collateral review of habeas petitions apply more deferential standard); see also Brecht, 507 U.S. at 629 (differentiating between "trial errors," which occur during the presentation of the case to the jury and which are controlled by harmless error standard, and so-called "structural defects" in trial, which are not). The SJC's application of this standard in this case was well grounded in evidence in the record.
As in Brecht, the record here demonstrates evidence of Tague's guilt that was "certainly weighty." See id. at 639. Indeed the SJC described the evidence of Tague's guilt as "overwhelming." See Tague, 434 Mass. at 517. For example, the Commonwealth produced Tague's own statements to Tougas and a convenience store clerk to the effect that he had mortally wounded Linsky. See id. at 512-13, 517. The record also contained evidence that a person matching Tague's description was seen pummeling the prostrate body of Linsky during the melee. See id. at 512.
Moreover, the evidence Tague offers to rebut this evidence, Sullivan's adoptive admission of complicity, even if admitted, would not have absolved Tague. As the SJC explained, Sullivan's admission, such as it was, had the effect of implicating him in the murder of Linsky, see id. at 517, but it did not thereby exculpate Tague. Because Tague could have been found guilty under either a joint venture or principal theory, the SJC reasoned, the exclusion of this evidence did not result in actual prejudice to Tague. See id. That is, the mere fact that Sullivan may also have stabbed Linsky did not preclude or otherwise undermine the jury's determination that Tague was himself guilty.
As a consequence, I conclude that any error in excluding Sullivan's admission was harmless. Because the admission or exclusion of Sullivan's non-verbal assertion would not have made a difference in the jury's verdict — for which there was substantial credible evidence in the record — the exclusion cannot be said to have substantial or injurious effect on that verdict.
III. CONCLUSION
For the reasons set forth above, the clerk is directed to dismiss the Petition.