63
N.E.2d 344, 345-46 (Mass. 1945). After a seven-day jury trial,
Fortini was convicted of second degree murder and given the
mandatory sentence of life in prison.
Fortini appealed to the Massachusetts Appeals Court,
arguing for the first time that the decision not to admit the
disputed evidence was not only error under state law but
violated the federal constitution as well. In his brief,
Fortini stated that the evidence was "relevant, trustworthy, and
critical to the defendant's defense," that its exclusion was
inconsistent with Chambers v. Mississippi, 410 U.S. 284, 303
(1973), and therefore that his constitutional right to due
process had been violated. In its appellate brief, the
Commonwealth argued that the trial court's ruling was correct as
a matter of evidence law, but it did not mention Fortini's
constitutional claim, Chambers, or the Fourteenth Amendment.
The Appeals Court affirmed the conviction and, like the
Commonwealth's brief, only addressed Fortini's claim in terms of
Massachusetts evidence law. The court said that the trial court
might have erred in not admitting the evidence of Monterio's
behavior, Fortini, 692 N.E.2d at 113 n.6, but it found (in
substance) that any error was harmless. The Massachusetts
harmless error standard for objected-to, non-constitutional
-6-
trial errors is that "the error did not influence the jury, or
had but very slight effect." Commonwealth v. Alphas, 712 N.E.2d
575, 580 n.7 (Mass. 1999). The Appeals Court gave two reasons:
First, the Appeals Court noted that Fortini was
permitted to introduce other evidence of Monterio's actions
which supported Fortini's contention that Monterio had acted
aggressively that evening. Specifically, the court pointed to
the evidence of Monterio's shouting and cursing at the house
earlier in the evening. Thus, the court held, Fortini was
already able to establish Monterio's "state of mind" and the
evidence of the basketball court incident "was to some degree
cumulative." Fortini, 692 N.E.2d at 113.
Second, and more central to its decision, the court
found that Fortini's "appearance with a loaded shotgun on the
darkened porch, coupled with his decision to eschew any retreat
to the safety of his apartment, were deliberate acts of
defiance, not defense." Fortini, 692 N.E.2d at 114. On this
premise, the court held that even if it was error to exclude the
basketball court incident, Fortini had suffered no prejudice
because he could not, as a matter of law, show that he acted in
self defense in light of his decision to "lie in wait" on the
porch rather than retreating to the safety of his apartment when
-7-
given the opportunity. Id. The Supreme Judicial Court denied
further appellate review. Commonwealth v. Fortini,
699 N.E.2d
850 (Mass. 1998).
Fortini filed a petition for writ of habeas corpus,
which the federal district court dismissed on the grounds that
he had not exhausted available state remedies as the statute
governing habeas petitions requires. 28 U.S.C. § 2254(b)(1).
Although conceding that Fortini's state court briefs contained
"isolated references" to his federal constitutional rights, the
district court said that they did not include a "developed
argument elaborating any particular claim." The district court
observed that the state appeals court had not addressed
Fortini's constitutional claim, suggesting that it had been
unaware that such a claim was being pressed.
Fortini now appeals to this court. He argues that the
district court erred in finding that he did not properly present
his constitutional claim in state court and, in addition, says
that excluding the basketball court episode denied him due
process under Chambers and had a likely effect on the jury's
verdict. The Commonwealth, while partly addressing the merits
of Fortini's claim, rests primarily on the district court's
waiver argument and on the strict standards for habeas now
applicable under the Antiterrorism and Effective Death Penalty
-8-
Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). See
28 U.S.C. § 2254(d)(1) (Supp. II 1996).
1. The threshold question in this case is whether
Fortini exhausted his state remedies. The Commonwealth says
that Fortini "did little if anything to properly alert the
Commonwealth's courts that he was asserting a federal
constitutional claim" and thus he is not entitled to habeas
review. The district court agreed, finding that while Fortini
had argued that the exclusion of the basketball court incident
implicated state evidence law issues, he had not adequately
raised the constitutional claim. We review de novo the district
court's dismissal on this ground. Adelson v. DiPaola, 131 F.3d
259, 262 (1st Cir. 1997).
Exhaustion requires that a petitioner have "fairly
presented to the state courts" his constitutional claim. Picard
v. Connor, 404 U.S. 270, 275 (1971). This requires that the
issue be presented "in such a way as to make it probable that a
reasonable jurist would have been alerted to the existence of
the federal question," Scarpa v. DuBois,
38 F.3d 1, 6 (1st Cir.
1994), cert. denied,
513 U.S. 1129 (1995), for example, by
"specific constitutional language, constitutional citation, [or]
appropriate federal precedent . . . ." Nadworny v. Fair,
872
F.2d 1093, 1101 (1st Cir. 1989). By contrast, "a passing
-9-
reference" to a constitutional issue will not preserve it for
habeas review. Martens v. Shannon, 836 F.2d 715, 717 (1st Cir.
1988). Exhaustion is a closer issue than either side admits,
but in the end we think that Fortini did adequately present his
federal claim based on Chambers v. Mississippi in the state
appellate courts. The first section in Fortini's brief to the
Massachusetts Appeals Court--attacking the exclusion of the
basketball court episode--was titled, "The Trial Court Violated
The Defendant's State And Federal Constitutional Rights to Due
Process And A Fair Trial By Denying Him The Right To Present
Highly Relevant Evidence." His petition for further appellate
review to the SJC included virtually identical language.
In addition, the first case cited in the section was
Chambers v. Mississippi. After discussing the factual predicate
for the legal claim, the section concluded with further
citations to Chambers and Webb v. Texas, 409 U.S. 95 (1972) (due
process clause protects defendant's right to present witnesses),
and the assertion that "the exclusion of . . . evidence denied
the defendant a trial in accordance with fundamental standards
of due process." The brief's addendum included the text of the
Fourteenth Amendment, as required by Massachusetts rules for
appeals raising constitutional claims. Mass. R. App. Proc.
16(f).
-10-
In short, Fortini's papers included many of the
"trappings" that we have previously recognized to be central to
presenting a claim. Nadworny, 872 F.2d at 1101; accord Williams
v. Lord,
996 F.2d 1481, 1483 (2d Cir. 1993), cert. denied,
510
U.S. 1120 (1994). Admittedly, Fortini's constitutional argument
may have been obscured by his emphasis on Massachusetts cases
that deal with rules of evidence. See
Adelson, 131 F.3d at 263.
Nonetheless, we think that the briefs' language and citations
should have alerted the court that a constitutional argument was
also being made. That the Appeals Court did not address the
constitutional issue is not controlling. Pettijohn v. Hall,
599
F.2d 476, 480 n.2 (1st Cir.), cert. denied,
444 U.S. 946 (1979).
We note that Fortini apparently failed to raise the
constitutional claim in the state trial court when he there
urged the admission of the fight evidence. In all likelihood,
the Appeals Court could have refused to consider the due process
argument because it was not pressed in the trial court, see
Commonwealth v. Bibby, 624 N.E.2d 624, 628 (Mass. App. Ct.
1993), although it also had discretion to consider the claim
even if it was not raised earlier, Commonwealth v. Curtis,
632
N.E.2d 821, 825 (Mass. 1994).
However, the Appeals Court did not purport to reject
the federal constitutional claim on grounds of state waiver law.
-11-
Nor did the federal district court rest on Fortini's failure to
raise the issue at the trial stage. Neither in briefing nor in
oral argument in this court did the state argue that Fortini's
failure to raise the constitutional issue at the trial stage
precludes the argument in federal court. We conclude that the
state has itself waived any objection to the habeas petition
based on Fortini's failure to raise the constitutional issue at
trial. Adelson, 131 F.3d at 263-64.
2. Turning to the merits, Fortini's constitutional
claim presents a difficult issue that cannot be said to be
directly governed by existing Supreme Court precedent. In
Chambers, a state capital murder case, seemingly reliable
hearsay evidence (from several witnesses) of a confession by
someone other than Chambers was excluded at his trial. The
"someone else" was called as a witness but denied being the
culprit, and Chambers' ability to question the "someone else" in
court was severely curtailed by the old-fashion rule limiting
impeachment of one's own witness. The Supreme Court reversed:
it said that in such extreme circumstances, the exclusion of the
evidence violated due process principles. Chambers, 410 U.S. at
302.
Although Chambers unquestionably remains "the law,"
e.g., Crane v. Kentucky, 476 U.S. 683, 690 (1986), the Court has
-12-
rarely used it to overturn convictions and in recent years has
made clear that it can be invoked only in extreme cases. Most
recently, a majority of the Court said that a state law
justification for exclusion will prevail unless it is "arbitrary
or disproportionate" and "infringe[s] upon a weighty interest of
the accused," United States v. Scheffer, 523 U.S. 303, 308
(1998). See also Montana v. Egelhoff,
518 U.S. 37, 53 (1996)
(plurality opinion suggestion that any justification is
sufficient to satisfy due process).
Inevitably, the lower federal courts have tended to
"balance" incommensurate competing interests, taking account of
the importance of the testimony to the defense, its inherent
strength and reliability, and various kinds of countervailing
reasons for excluding it offered by the state. E.g., Pettijohn,
599 F.2d at 480-81. Nevertheless, in cases less powerful than
Chambers, a defendant whose proffer of evidence was rejected for
any conventionally plausible reason or rule usually has an
uphill struggle.
Admittedly, Fortini has a strong argument that the
evidence in question should have been admitted under
conventional evidence rules. To begin, the evidence was
relevant to Fortini's claim of self defense, and here the trial
judge was misled. Although the evidence of the basketball court
-13-
episode was certainly not relevant to Fortini's state of mind
(since he did not then know about the fight), it was relevant to
Monterio's state of mind, making it more likely than it would be
without the evidence that Monterio lunged at Fortini, as the
latter claimed. This in turn might have helped Fortini if the
jury had doubts about his story--a key qualification to which we
will return.
Of course, relevant evidence is excluded all the time
where other considerations override relevance. Here, it might
look as if the basketball court incident was merely character
evidence, tending to portray Monterio as a violent man. Such
evidence is commonly excluded by courts because of its
remoteness and tendency to prejudice the jury. Fed. R. Evid.
404; see, e.g., United States v. Varoudakis, 233 F.3d 113, 118-
19 (1st Cir. 2000). But in a federal court, and so far as we
can tell under Massachusetts law, the basketball court incident
was so close in time to the shooting as to suggest that it might
fall within the exceptions that admit (where pertinent) acts
demonstrating state of mind and emotion of the actor, here
Monterio.4
4
See United States v. Aguilar-Arenceta, 58 F.3d 796, 798
(1st Cir. 1995); Government of the Virgin Islands v. Carino,
631
F.2d 226, 229 (3d Cir. 1980); Commonwealth v. O'Brien,
736
N.E.2d 841, 852 (Mass. 2000); Commonwealth v. Scullin,
687
N.E.2d 1258, 1263 (Mass. App. Ct. 1997).
-14-
Prejudice is a different question. Even highly
relevant evidence can be excluded if it is unduly prejudicial.
The evidence in question was certainly prejudicial in the
pertinent sense, that is, it invited the jury to acquit because
it made Monterio out to be a violent and dangerous man of whom
the world was well rid. But the state court did not exclude the
evidence on grounds of undue prejudice and there is no certainty
that it would have done so if it had appreciated the relevance
of the evidence. Nor did the Appeals Court mention prejudice of
this kind.
It might thus be argued that there was no valid
justification invoked for excluding the evidence. The Appeals
Court itself assumed arguendo that the evidence should not have
been excluded. Although the SJC has never squarely addressed
the issue, it is hard for us to see why--assuming relevance--
such bad acts would be categorically inadmissible where offered
to show the state of mind of the victim rather than the state of
mind of the defendant. There is ample precedent elsewhere for
admitting evidence on this theory. E.g., State v. Day, 535
S.E.2d 431, 436 (S.C. 2000); Randolph v. Commonwealth,
56 S.E.2d
226, 231 (Va. 1949).
Yet not every ad hoc mistake in applying state evidence
rules, even in a murder case, should be called a violation of
-15-
due process; otherwise every significant state court error in
excluding evidence offered by the defendant would be a basis for
undoing the conviction. The few Supreme Court cases that
actually undid convictions based on a Chambers analysis involved
far more egregious situations; and the more recent decisions of
the Court we have cited create serious doubts that the Court is
interested in carrying the doctrine beyond egregious cases.
Chambers and Crane both involved highly probative
evidence absolutely critical to the defense, 410 U.S. at 302;
and 476 U.S. at 690; and the third (and last) decision favoring
a defendant, Rock v. Arkansas,
483 U.S. 44, 55 (1987), concerned
a defendant's own right to testify. By contrast, in the present
case the defendant offered direct testimony on the pertinent
issue--whether Monterio lunged at him. The basketball court
incident that was excluded is at best indirect evidence which
does no more than add to existing proof that Monterio was in a
mood to lunge.
Because this case is sufficiently weaker than Chambers,
Crane and Rock, it would be easy to uphold the state court
ruling under AEDPA's ordinary standard for evaluating state
legal determinations, if that standard were applicable. In
habeas proceedings, a federal court is now directed to accept a
state legal ruling unless it is "contrary to, or involved an
-16-
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). The
state says that this rubric governs in the present case, but the
state is mistaken.
AEDPA's strict standard of review only applies to a
"claim that was adjudicated on the merits in state court
proceedings." 28 U.S.C. § 2254(d). Here, the federal claim was
never addressed by the state courts. All of the cases that have
touched on this problem (none is directly in point) assume that
the statute applies only when the state court decided the
federal issue.5 After all, AEDPA imposes a requirement of
deference to state court decisions, but we can hardly defer to
the state court on an issue that the state court did not
address. Cf. Williams v. Taylor, 529 U.S. 362, 402-06 (2000).
Nevertheless, viewing the issue de novo, we conclude
that the exclusion of evidence in question does not rise to the
level of a Chambers violation. The evidence at best lies on the
margin of a blurred line that divides character evidence,
commonly but not always excluded, cf. Fed. R. Evid. 404, from
state-of-mind evidence; the evidence at best does no more than
5
See Smith v. Massey, 235 F.3d 1259, 1264-65 (10th Cir.
2000); Weeks v. Angelone,
176 F.3d 249, 258-59 (4th Cir. 1999);
Moore v. Parke,
148 F.3d 705, 708 (7th Cir. 1998); cf. Nobles v.
Johnson,
127 F.3d 409, 416 (5th Cir. 1997), cert. denied,
523
U.S. 1139 (1998).
-17-
increase somewhat the likelihood of a lunge, already the subject
of Fortini's direct testimony; and the risk of unfair prejudice
to the prosecution was real even if many courts would not have
chosen to exclude the evidence on this ground.
It is very difficult to predict the evolution of
Chambers because in over 30 years it has been used by the
Supreme Court only a handful of times to overturn convictions;
and the Supreme Court's standards are quite vague, although
understandably so in a due process matter. Although this is a
close case, exclusion of the evidence does not in our view add
up to the kind of fundamental unfairness that warrants a federal
court in finding a violation of due process. The exclusion in
our view was error but it was not constitutional error.
3. Even if exclusion of the evidence were a
constitutional error, we would find the error to be harmless.
This is itself a close question, turning on the proper standard
for judging harmless error. Still, because the constitutional
"merits" are debatable, it is useful to address this alternative
ground for affirmance.
Because we are assuming constitutional error, it might
at first blush be thought that the error must be harmless
"beyond a reasonable doubt" under Chapman v. California, 386
U.S. 18, 24 (1967). Chapman continues to govern on direct
-18-
appeal (although why a constitutional error should be
intrinsically different than some other kind of serious error is
unclear); but more recently in Brecht v. Abrahamson, 507 U.S.
619, 638 (1993), the Supreme Court adopted a different test for
habeas more favorable to the prosecution, namely, that the error
(constitutional or not) is harmless if it did not have a
substantial and injurious effect or influence on the jury's
verdict.
Brecht's standard could in theory be restricted to
cases in which the state court had itself applied Chapman (so
that Brecht would be an expression of deference to a state
determination). Most circuits, however, have taken the view
that Brecht applies in habeas corpus cases without
qualification.6 One can find the language in Brecht pointing in
both directions, but most of its expression of rationale
suggests that the Brecht test applies in habeas cases regardless
of whether the state court itself made a Chapman harmless error
analysis. See Tyson v. Trigg, 50 F.3d 436, 446 (7th Cir. 1995)
(Posner, C.J.).
6
Compare Bains v. Cambra, 204 F.3d 964, 976-77 (9th Cir.),
cert. denied,
121 S. Ct. 627 (2000) (collecting numerous cases
applying Brecht), with Orndorff v. Lockhart,
998 F.2d 1426, 1430
(8th Cir. 1993) (contra), cert. denied,
511 U.S. 1063 (1994).
-19-
Assuming that Brecht applies, we do not think that the
excluded evidence in this case would likely have affected the
outcome, but our reasons are different than the harmless error
ruling made by the state Appeals Court. The Appeals Court, it
will be recalled, said that the basketball court incident was
somewhat cumulative and, in any event, could not have altered
the outcome: this was so because, regardless of what happened
on the porch, Fortini undermined his self-defense claim when he
chose to appear on the porch carrying his shotgun and then
failed to go upstairs when he heard whispering on the sidewalk.
The implication of the Appeals Court's reasoning is
that the evidence for Fortini's claim of self-defense was so
weak that the defense should not have been submitted to the jury
or, in the alternative, that no reasonable jury could have
accepted it. But no SJC case law adopts such a view: on the
contrary, the SJC's stress is on the fact-specific character of
the defense and the need for a jury evaluation whenever the
issue is debatable.7 The Appeals Court's reading of state law
7Massachusetts requires a self-defense instruction if the
evidence, seen in the light most favorable to the defendant,
shows that the defendant: (1) had a reasonable belief he was in
imminent danger of death or serious bodily harm; (2) availed
himself of all reasonable means of escape; and (3) used no more
force than reasonably necessary. Commonwealth v. Harrington,
399 N.E.2d 475, 479 (Mass. 1980). "[W]hether a defendant used
all reasonable means of escape before acting in self-defense is
a factual question dependent on a variety of circumstances."
-20-
is usually "trustworthy data" but it is not binding on a federal
court, Losacco v. F.D. Rich Constr. Co., 992 F.2d 382, 384 (1st
Cir.), cert. denied,
510 U.S. 923 (1993), and in this case the
state itself does not defend the Appeals Court's harmless error
reasoning.
Here, Fortini's version of events, which the jury could
have accepted, was that he was encouraged by the police
dispatcher to obtain a license plate or other identification if
the harassing party returned; that he went to the porch without
aggressive intent carrying the shotgun solely for self-defense;
that when he heard the threatening language from Monterio and
heard Monterio's footsteps, he (Fortini) made no effort to shoot
or advance but told Monterio to get off the porch, and that he
fired only after Monterio lunged at him. If it accepted all of
this, a jury might rationally have accepted Fortini's claim of
self-defense.
Nor are we persuaded by the Appeals Court's other
reason for thinking that the fight evidence did not matter,
namely, that it was cumulative of other evidence (his apparent
"drive by" cursing) showing Monterio's aggressive intent on the
night of the incident. It is one thing to yell epithets from a
Commonwealth v. Pike, 701 N.E.2d 951, 957 (Mass. 1998). Cf.
Commonwealth v. Latimore,
393 N.E.2d 370, 373 (Mass. 1979).
-21-
passing car; quite another--and far more shocking--to attack
four men who, so far as appears, were engaged in playing
basketball and had done nothing to provoke Monterio. That this
incident occurred only minutes before Monterio appeared on
Fortini's porch makes the evidence even more telling in support
of Fortini's claim.
However, we do think that the exclusion of the fight
evidence was harmless error under Brecht for a quite different
reason. Fortini's only legitimate reason for introducing the
basketball court episode was to back up his own testimony that
Monterio lunged at him, forcing him to fire in self defense.
Our own independent review of the record, Rushen v. Spain, 464
U.S. 114, 120 (1983) (per curiam); Sinnott v. Duval,
139 F.3d
12, 15 (1st Cir. 1998), shows that Fortini's version of what
happened on the porch was subject only to limited challenge by
the state and, far more important, the state's answer to the
self-defense claim did not depend at all on whether Monterio
lunged.
Fortini gave the only direct testimony on whether
Monterio lunged and the state did not cross examine him on the
point. However, the state did raise doubts indirectly: Lopes
testified for the state that Monterio was slowly moving up to
the porch in Fortini's direction when Fortini shot him and a
-22-
state expert, in necessarily speculative testimony, said that a
study of the wounds suggested that Monterio was at some distance
when Fortini fired.
Nevertheless, the state's basic argument to the jury
bypassed the lunge issue. In its opening, the prosecution
conceded that Monterio "may have taken a step" towards Fortini.
In its summation the prosecution never argued that Monterio had
not lunged at Fortini (it again admitted that he took a step
towards Fortini once he saw him with the gun). Instead, it
contended that the shooting was not a "split-second situation"
where Fortini was suddenly at risk and that Fortini had gone
armed to the porch looking for trouble.
The prosecution throughout the proceedings asserted
that Fortini had been angered by Monterio's earlier shouts at
the house; the prosecution offered evidence that he (Fortini)
was openly racist; and it argued that by the time Fortini went
down to the porch he had decided that he wanted to shoot the
perceived troublemakers. The jury's verdict suggests strongly
that it bought this view--not because it had to (the Appeals
Court's position) but because it was an available and plausible
theory to negate self defense and was the only theory actually
argued to it for that purpose.
-23-
It is true that the excluded evidence could have helped
Fortini in a quite different way than as support for Fortini's
lunge testimony. By suggesting that Monterio was a violent and
dangerous individual, it might have encouraged the jury to
acquit Fortini on the ground that Monterio was a wicked man who
ought to be put out of business. But unless the evidence was
necessary to a legitimate defense, this inference would be an
argument for excluding the evidence--not for admitting it. See
Strong, McCormick on Evidence § 190 (5th ed. 1999). However
mistaken under state law, a ruling whose only ultimate effect
was to deprive the defendant of an improper defense is hardly a
basis for granting the writ. Cf. Burks v. DuBois, 55 F.3d 712,
715-16 (1st Cir. 1995).
To sum up, the legitimate use of the evidence would in
our view have had only a very small likelihood of altering the
result. This is not sufficient under Brecht. We could not say
exclusion was harmless "beyond a reasonable doubt" under Chapman
(since the jury might have disregarded the state's argument and
made everything turn on the lunge). But even if the consensus
of the circuits is wrong and Chapman does apply to habeas, we
still think that there was no Chambers violation for reasons
already explained.
-24-
For the reasons stated, the judgment of the district
court is affirmed. Counsel for Fortini is commended for his
very able representation in this difficult case.
It is so ordered.
-25-
