USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 94-1619
WILLIAM MORRILL GILDAY, JR.,
Petitioner, Appellant,
v.
WILLIAM F. CALLAHAN, SUPERINTENDENT, MCI NORFOLK,
Respondent, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Michael Avery for appellant.
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William J. Meade, Assistant Attorney General, with whom Scott
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Harshbarger, Attorney General, was on brief for appellee.
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July 5, 1995
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COFFIN, Senior Circuit Judge. Petitioner William Gilday was
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convicted of first degree murder and two counts of armed robbery
for his involvement 25 years ago in a notorious bank robbery in
which Boston Police Officer Walter A. Schroeder was killed. This
habeas case, originally filed in 1981, was reactivated after
disposition of the last of his four unsuccessful motions for new
trial in the Massachusetts courts. The district court denied the
petition in a comprehensive opinion. 866 F. Supp. 611 (D. Mass.
1994). After carefully reviewing the case authorities and
relevant portions of the record, we affirm.
I. Background
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We shall provide at this juncture only brief factual
background, adding more details in later sections as necessary
for an understanding of the issues discussed. A lengthy
description of the evidence presented at Gilday's five-week trial
is reported in Commonwealth v. Gilday, 367 Mass. 474, 478-485,
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327 N.E.2d 851, 854-58 (1975) ("Gilday I"). See also Gilday, 866
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F. Supp. at 640-43. A full chronology of the proceedings since
his 1972 conviction is set out in the district court's opinion.
Id. at 615-16.
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Gilday and five others were indicted on robbery and murder
charges.1 Evidence indicated that the group had planned a
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1 The other defendants charged in the crime were Stanley R.
Bond, Robert J. Valeri, Susan E. Saxe and Katherine A. Power.
Michael Fleischer was charged as an accessory after the fact.
Bond, who testified as a defense witness at Gilday's trial, died
in prison. Valeri testified as a Commonwealth witness against
Gilday, pled guilty eight months later to manslaughter, and is
now free. Fleischer also testified as a Commonwealth witness,
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series of bank robberies to raise funds in support of radical
political activities. The Supreme Judicial Court summarized as
follows the evidence supporting the Commonwealth's theory of what
occurred on the day of the robbery at issue here:
Bond, Valeri and Saxe entered the bank carrying guns,
robbed it and drove off in a blue Chevrolet . . . .
Gilday, armed with a semiautomatic rifle, was seated in
a white Ambassador automobile across the street from
the bank . . . . [A]fter the other three had escaped
from the scene, Gilday fired a number of shots at two
policemen who arrived, and Officer Schroeder thereby
sustained the wounds from which he died the next day.
Bond, Valeri, and Saxe later switched to a third
vehicle, a station wagon driven by Power, and made
their escape. Gilday also escaped in the white
Ambassador.
367 Mass. at 477.
On March 10, 1972, Gilday was convicted by a jury and
sentenced to death. Following the United States Supreme Court's
decision in Furman v. Georgia, 408 U.S. 238 (1972), and his first
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motion for new trial, the death sentence was changed to a
sentence of life imprisonment. His subsequent efforts to obtain
relief from the original convictions have proven unsuccessful.
In this appeal, Gilday argues that he is entitled to a writ
of habeas corpus because his trial was replete with
constitutional error, and there consequently is substantial
reason to believe he was innocent of the charges on which he was
convicted. We have considered each of his claims fully, but
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and his indictments ultimately were dismissed. Saxe was a
fugitive for several years. After her first trial ended with a
hung jury, she pled guilty to manslaughter and is now free.
Power surrendered to authorities in 1993, and is now serving a
prison sentence.
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cannot say that any of the identifiable flaws in the proceedings
constituted a deprivation of rights warranting reversal of his
convictions. We discuss most of these claims in some detail
below. As for the others, the district court's analysis so
closely reflects our own thoughts that we find it unnecessary to
repeat the discussion and, therefore, adopt its conclusions as
our own.
II. Reasonable Doubt Instruction
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Gilday claims a host of problems with the trial judge's
reasonable doubt instruction, several of which center on language
that has been expressly and repeatedly disapproved by this and
other courts. Because we agree that this charge was flawed, we
have studied its full text and context with particular care in
order to answer the relevant constitutional question: "whether
there is a reasonable likelihood that the jury understood the
instructions to allow conviction based on proof insufficient to
meet the [reasonable doubt] standard," Victor v. Nebraska, 114 S.
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Ct. 1239, 1243 (1994). Our review is de novo. See Ouimette v.
__ ____ ___ ________
Moran, 942 F.2d 1, 4 (1991) (presumption of correctness for state
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court findings of fact under 28 U.S.C. 2254 applies only to
"`basic, primary or historic facts'" (citation omitted)).
As we previously remarked when evaluating a strikingly
similar instruction in Bumpus v. Gunter, 635 F.2d 907, 910 (1st
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Cir. 1980),2 "[i]t is to be remembered . . . that [the
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2 The Bumpus trial and Gilday's both occurred early in the
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1970s, and the same judge presided over them.
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challenged] remarks have been separately culled from a very
lengthy charge. They, and the emanations from them, must be
assessed along with the rest of the charge . . . ." The Supreme
Court recently reaffirmed the need to examine a charge in context
to determine whether language possibly erroneous in the abstract
is cleansed because "the rest of the instruction . . . lends
content to the phrase," Victor, 114 S. Ct. at 1247, 1250-51. See
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also id. at 1243 ("`[T]aken as a whole, the instructions [must]
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correctly conve[y] the concept of reasonable doubt to the jury.'"
(quoting Holland v. United States, 348 U.S. 121, 140 (1954)).
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In the end, we have come to the conclusion that the charge
overall left the jury with an accurate impression of the
substantial burden faced by the prosecution in establishing the
defendant's guilt beyond a reasonable doubt. As shall become
apparent from our discussion below, none of the problems
identified by Gilday is, on its own, of a severity that warrants
reversal of his conviction. Indeed, several of the flaws are
significantly ameliorated by other aspects of the charge. And,
while the cumulative impact of the flaws is itself a separate
matter of concern, we are persuaded that it does not rise to the
level of constitutional error.
The charge, which spanned 20 paragraphs when reduced to
writing,3 loosely may be divided into three separate segments
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3 All nineteen substantive paragraphs are contained in one
of the three segments of the instruction set off in blocks from
the text of this opinion. The twentieth, which simply introduces
the final portion of the charge, is reproduced in text on pages
15 and 16.
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for purposes of our review. We therefore begin our discussion by
reproducing the first five paragraphs:
It is the burden of the Commonwealth to establish
its case beyond a reasonable doubt. What do those
words mean? Well, you give to them their common
ordinary meaning. A doubt means an uncertainty of mind
or a lack of conviction. And reasonable means based
upon a reason.
I am going to discuss with you what our Court has
said it does not mean. It does not mean a whimsical or
a fanciful doubt; that is, a doubt which is conjured
up, which has no strength to tie it together, which has
no foundation in fact. It is floating around in the
air. And you can't pull it down and root it to
something solid in the evidence. It is whimsical.
It is not beyond all doubt. There are few things
in this world of ours which are capable of proof beyond
all doubt. That is an impossible burden. And if that
were the burden that we placed upon the Commonwealth,
no one who transgressed the laws of society or outraged
our populace would ever be convicted of a crime. Don't
confuse beyond a reasonable doubt with beyond all
doubt.
And I sometimes think the jurors take that as
their standard. They must be satisfied before they
find a defendant guilty that there is no possibility
that they are wrong before their full conviction. And
so again, the Court has said: "Proof beyond a
reasonable doubt is not beyond the possibility of
innocence," because I suppose almost anything is
possible.
And if you are satisfied as I define reasonable
doubt of the proof of the Commonwealth's case beyond a
reasonable doubt you should not hesitate because of a
haunting thought that there is a possibility that you
might be wrong. Because then you place on the
shoulders of the sovereign state a burden it does not
have.
The judge thus began simply, telling the jurors that a
reasonable doubt is an uncertainty "based upon a reason."
Petitioner argues that the charge contained such a catalogue of
examples of what was not reasonable doubt that the jury was in
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effect improperly influenced to assign whatever doubt it had to
these examples. But tautology is not multiplicity; all of the
references carried the identical message: that proof beyond a
reasonable doubt is not beyond all doubt. As we said in Bumpus,
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635 F.2d at 911:
While the judge placed what we regard as an
uncomfortable degree of emphasis on the limits of the
government's burden, . . . the charge in its entirety
was not so unbalanced as to undercut the reasonable
doubt standard, nor was it basically inaccurate.
The next six paragraphs contain all of the troubling
language. The section begins with a rhetorical question: "[s]o
what does it [reasonable doubt] mean?" The judge then answered:
Not one who is searching for a doubt to acquit; not one
who has made up his mind that the defendant is not
guilty, and then having decided the ultimate question,
to satisfy his conscience goes back through the
evidence and pores through it to find something upon
which to pin the doubt which he already has. No,
indeed. It is the doubt of a conscientious juror who
is earnestly seeking the truth in the fullest discharge
of the oath that he took. It is proof, as our Supreme
Judicial Court has said, "To a moral certainty."
That is not a mathematical certainty; that is not
a scientific certainty which is capable of exactness,
because human beings are endowed with a free will; and
they are capable of independent action. And you can't
take their conduct and put it into a test tube or a
computer and come out with a nice answer.
When you get all through analyzing this evidence,
it has to be a doubt nagging your mind, leaving you
with an uncertainty of conviction to that moral
certainty which you can stand up and argue in the jury
room with principle and integrity and honesty to your
fellow jurors. And if you don't believe in it
yourself, you haven't got a reasonable doubt.
The Supreme Court has expressed it as, "The same
degree of satisfaction of mind and conscience that
jurors should have when they take action in the major
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affairs of their lives," the major affairs of their
lives.
I do not attempt to define for you what are the
major affairs of your lives. I leave it to your
experience and I leave it to your wisdom. When you
take vital action in your everyday lives certainly you
should be satisfied to a moral certainty that what you
are doing is right.
None of us have a crystal ball. The future is not
ours to see. All we can do is weigh the pros and the
cons against any contemplated course of action; and
then with the wisdom and the intellect that we possess,
make a decision. We may be right; we may be wrong.
But if we are satisfied to a moral certainty when we do
an act in our private lives, that it is the right thing
to do, we have a settled conviction of mind. That is
the degree of proof which the law contemplates when
they talk about "proof to a moral certainty."
Petitioner directs his fire to four problem areas in these
passages: (1) the use of the term "moral certainty," (2) the
comparison of the level of certainty necessary for a finding
"beyond a reasonable doubt" with the level of certainty
applicable to personal decisionmaking, (3) the suggestion in the
fourth paragraph that the jury need only weigh the pros and cons
before making a decision, followed by the statement suggesting
that whether the decision is right or wrong is of equivalent
consequence; (4) the possibility that the third of these
paragraphs could be understood as inverting the burden of proof
by requiring the jurors to find in the evidence so strong a
"conviction" of doubt that they would be able to argue for it to
their peers in the jury room. We address each of these in turn,
and then also consider their cumulative effect.
(1) "Moral Certainty". Equating the concept of reasonable
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doubt to "moral certainty" may be, in isolation, reversible
-8-
error. See Victor, 114 S. Ct. at 1250-51; Cage v. Louisiana, 498
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U.S. 39, 41 (1990) (per curiam); Commonwealth v. Pinckney, 419
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Mass. 341, 345-49, 644 N.E.2d 973 (1995). The Supreme Court has
discouraged use of this phrase because of its ambiguous meaning,
see Victor, 114 S. Ct. at 1247-48, and we similarly have
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expressed concern because "the jury might feel justified in
convicting based on a feeling rather than on the facts in the
case," United States v. Drake, 673 F.2d 15, 21 (1st Cir. 1982).
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See also United States v. Indorato, 628 F.2d 711, 721 (1st Cir.
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1980) ("[W]e have indicated our uneasiness with this phraseology
and pointed out that it has been the subject of mixed reviews.").
Indeed, in Cage, the Supreme Court reversed a conviction
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based on a charge using "moral certainty" language because the
only other meaning ascribed to reasonable doubt equated such
doubt to "a grave uncertainty" or "an actual substantial doubt."
The Court felt that those terms, in conjunction with the phrase
"moral certainty," suggested a higher degree of doubt than is
required for acquittal.
In Victor, however, the Court upheld the validity of two
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separate reasonable doubt instructions that contained "moral
certainty" language, observing that that language "cannot be
sequestered from its surroundings" and finding that the remainder
of the charge lent appropriate content to the otherwise ambiguous
words. 114 S. Ct. at 1248.
As in Victor, the charge here contained far more explanation
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than was offered to the jury in Cage. The paragraph immediately
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following the first reference to "moral certainty" distinguishes
that level of certitude from mathematical certainty, harking back
to the message from the preceding section of the charge. The
juxtaposition suggests that the requisite level of confidence
was, indeed, substantial, though not proof beyond all doubt. See
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Pinckney, 419 Mass. at 347.4
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The lengthy charge also offered additional formulations
emphasizing the high level of proof necessary for conviction.
Twice during the course of the instruction, the court charged
that the jury must attain a "settled conviction" of guilt. In
Victor, the Supreme Court ruled that the use of a similar phrase,
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"abiding conviction," mitigated references to "moral certainty"
and "substantial doubt." See 114 S. Ct. at 1247 ("`The word
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"abiding" here has the signification of settled and fixed, a
conviction which may follow a careful examination and comparison
of the whole evidence.' . . . As used in this instruction, . . .
we are satisfied that the reference to moral certainty, in
conjunction with the abiding conviction language, `impress[ed]
upon the factfinder the need to reach a subjective state of near
certitude of the guilt of the accused.'" (quoting Hopt v. Utah,
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120 U.S. 430, 439 (1887) and Jackson v. Virginia, 443 U.S. 307,
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315 (1979)).
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4 Although that same distinction was drawn in the reasonable
doubt instruction in Cage, the charge there did not elaborate any
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further and, to the extent it did provide additional explanation,
could not overcome the "grave uncertainty" and "actual
substantial doubt" language that the Court found unacceptable.
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It also is significant in evaluating the effect of the term
"moral certainty" that the jury was told more than once that its
decision must be based on the evidence presented. See Victor,
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114 S. Ct. at 1248, 1251. In the third paragraph of this section
of the charge, the judge began by noting that "[w]hen you get all
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through analyzing this evidence, it has to be a doubt nagging
________________________________
your mind, leaving you with an uncertainty of conviction . . . ."
Toward the end of the reasonable doubt instruction, the court
noted the jurors' oath to render "a true verdict according to the
evidence and the law," and earlier cautioned against "strain[ing]
the evidence to any conclusion not warranted by its fair
convincing force." Thus, as in Victor, the instruction here
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explicitly told the jurors that their decision had to be based on
the evidence in the case, minimizing the possibility that the
reference to "moral certainty" would have been viewed as
permitting a conviction based "on a feeling rather than on the
facts in the case," Drake, 673 F.2d at 21. See 114 S. Ct. at
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1248. And, also as in Victor, other instructions reinforced this
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message. See, e.g., Tr. at 4274 ("We look for a verdict which is
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dictated by your logic and your common sense and not your
heart."); id. at 4276 ("It is your sworn duty to presume the
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defendant innocent and to give him the benefit of that
presumption all throughout the trial and at every stage of the
investigation of the evidence in the jury room, until it is
overcome by proof beyond a reasonable doubt."); id. at 4281
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("[I]n the last analysis it comes to your most important
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obligation, and that is, to decide this case on the body of the
evidence as I define it."); id. at 4283 ("[W]hen it comes time to
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base your verdict, find a foundation in the evidence upon which
it must rest."); id. at 4291 ("The facts must exclude
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innocence.").
(2) "Vital action in your everyday lives". Comparing
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"beyond a reasonable doubt" to the "degree of satisfaction of
mind and conscience that jurors should have when they take action
in the major affairs of their lives" is an analogy that has drawn
criticism for decades. See Drake, 673 F.2d at 20 (noting Supreme
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Court's expressed displeasure of the "willing to act" instruction
in Holland v. United States, 348 U.S. 121 (1954)). Even when
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framed in the more accepted format of comparing reasonable doubt
to a doubt that would cause a prudent person to hesitate before
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acting, the instruction is arguably unhelpful. See, e.g.,
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Victor, 114 S. Ct. at 1252 (Ginsburg, J., concurring).5 The
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instruction here, however, did not include the sort of specific,
supposedly comparable, examples that have been viewed as
prejudicially misleading to jurors. Compare, e.g., Commonwealth
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v. Ferreira, 373 Mass. 116, 128-29, 364 N.E.2d 1264, 1272-73
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(1977) (reversing because a number of examples of important
personal decisions "understated and tended to trivialize the
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5 The Supreme Court repeatedly has approved the "hesitate to
act" formulation, however, and the majority in Victor relied in
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part on the trial court's use of it as an alternative definition
of reasonable doubt to support its conclusion that the
instruction there was adequate. The Court noted that it "gives a
common-sense benchmark for just how substantial such a doubt must
be." 114 S. Ct. at 1250.
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awesome duty of the jury to determine whether the defendant's
guilt was proved beyond a reasonable doubt") with Rogers v.
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Carver, 833 F.2d 379, 382-83 (1st Cir. 1987) (no reversible error
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where reference to important decisions was brief and general,
with no specific examples) and Bumpus, 635 F.2d at 912-13 (single
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example of deciding whether to have heart surgery did not
trivialize the jurors' duty or minimize the government's burden).
Because no such examples were used, and because the charge
focused on "vital" or "major" personal matters, we think it
unlikely that this aspect of the instruction deprived the
defendant of the right to be found guilty only upon proof beyond
a reasonable doubt.6
(3) Pros and cons; right and wrong. Read on their own, the
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opening sentences of the last paragraph in this section
unquestionably present an inadequate articulation of the
substantial and unique burden of proof born by the prosecution in
a criminal case. Read in context, however, the thrust of these
passages was to inform the jurors that a "settled conviction of
mind" must be reached to find the defendant guilty. Immediately
following the reference to right and wrong, the judge stated:
But if we are satisfied to a moral certainty when we do
an act in our private lives, that it is the right thing
to do, we have a settled conviction of mind. That is
the degree of proof which the law contemplates when
they talk about "proof to a moral certainty."
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6 The judge's third reference to everyday decisionmaking was
not qualified with an adjective such as "vital" or "major," but
we think the need to equate the criminal trial with a matter of
grave importance was by that time clear.
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This explanation makes manifest that the previous comments,
though poorly framed, were another restatement of the concept
voiced repeatedly by the judge that absolute certainty was
unnecessary. The jurors' decision will not necessarily be error-
free: "we may be wrong." What is crucial, the jurors are told,
is whether they can reach a "settled conviction" of guilt. We
therefore conclude that the language of this paragraph, though
far from ideal, was unlikely to be understood in its entirety in
theoverly casualway suggestedby theopening sentencesin isolation.
(4) Inversion of burden of proof. The third paragraph of
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this section of the charge contained two sentences, the first of
which told the jurors: you have a reasonable doubt if, when you
finish analyzing the evidence, you have
a doubt nagging your mind, leaving you with an
uncertainty of conviction to that moral certainty which
you can stand up and argue in the jury room with
principle and integrity and honesty to your fellow
jurors.
The second sentence was much more direct: "And if you don't
believe in it yourself, you haven't got a reasonable doubt."
Although the district court viewed the second sentence as a
mistake that may have suggested an inversion of the burden of
proof, it felt that the preceding sentence "plainly referred to a
`conviction' that the defendant was guilty as charged," not to a
"conviction", i.e., a belief, in a doubt. 866 F. Supp. at 618.
It therefore felt that no misimpression was given. Our view is
essentially the same. The first sentence clearly refers to the
certainty a jury must feel as to conviction. As for the second
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sentence, the concept of having a belief or a moral certainty in
a doubt (which in itself is a state of uncertainty) is, we think,
a strange and awkward way of referring to the strength of one's
doubt. The likely effect would have been to confuse, not to
encourage an inversion of the burden of proof.
In addition, this paragraph was one of twenty in the charge,
which began with a statement that "[i]t is the burden of the
Commonwealth to establish its case beyond a reasonable doubt,"
and which concluded with several paragraphs emphasizing the
defendant's "absolute right to hold the Commonwealth to this
strictness of proof." We therefore find no reasonable likelihood
that the jurors entered their deliberations with the false
impression that petitioner had the burden of establishing a
reasonable doubt.
(5) Cumulative effect. As we have discussed, none of the
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multiple deficiencies in the second portion of the charge was of
sufficient magnitude to weaken the conviction. Taken together,
however, their effect is more substantial. Reasonable doubt is
defined with the imperfect term "moral certainty," and one
alternative explanation of moral certainty is the disfavored
formulation concerning personal decisionmaking. Yet another
description of reasonable doubt and moral certainty suggests that
the jury's task is simply a matter of weighing the pros and cons
to reach a decision that "may be right" or "may be wrong." A
central passage defining reasonable doubt is largely
impenetrable, though its language taken literally could be
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understood to impose a burden of proving doubt on the defendant.
And we have expressed our discomfort with the first portion of
the charge, which at great length reiterates that the
government's burden should not be overestimated.
If these two sections comprised the entire instruction, we
might well conclude that reversal would be necessary. Of
greatest significance to our contrary conclusion is the fact
that, at the conclusion of the portions of the charge we have
quoted so far, the judge essentially began anew, telling the
jury, "so there will just be no doubt about what reasonable doubt
means, I am going to define it in the precise and more scholarly
language of our Supreme Judicial Court." In the next eight
paragraphs, he presents the then-acceptable charge on reasonable
doubt from Commonwealth v. Madeiros, 255 Mass. 304, 307-08, 151
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N.E. 297 (1926), see Pinckney, 419 Mass. at 348, together with
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language emphasizing the importance of the reasonable doubt
standard to our system of jurisprudence.7
"Proof beyond a reasonable doubt does not mean
proof beyond all doubt, nor beyond a whimsical or a
fanciful doubt, nor proof beyond the possibility of
innocence.
"It is rarely, if ever possible, to find a case so
clear that there cannot be a possibility of innocence.
If an unreasonable doubt or a mere possibility of
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7 The Supreme Judicial Court has since criticized the
Madeiros language, in the second paragraph quoted here, as
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warning the jury against holding the prosecution to too high a
standard of proof. See Commonwealth v. Pinckney, 419 Mass. 341,
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348, 644 N.E.2d 973 (1995) (citing cases). In this case, the
judge remedied that deficiency later in the instruction by
warning the jury against relaxing the reasonable doubt standard
in response to concerns about public safety or shocking crimes.
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innocence were sufficient to prevent a conviction,
practically every criminal would be set free to prey
upon the community. Such a rule would be wholly
impracticable and would break down the forces of law
and order, and make the lawless supreme.
"A reasonable doubt does not mean such doubt as
may exist in the mind of a man who is earnestly seeking
for doubts or for an excuse to acquit a defendant; but
it means such doubt as remains in the mind of a
reasonable man who is earnestly seeking the truth.
"A fact is proved beyond a reasonable doubt when
it is proved to a moral certainty, as distinguished
from an absolute or mathematical certainty; when it is
proved to a degree of certainty that satisfies the
judgment and consciences of the jury as reasonable men,
and leaves in their minds, as reasonable men, a clear
and settled conviction of guilt. But if when all is
said and done there remains in the minds of the jury
any reasonable doubt of the existence of any fact which
is essential to the guilt of the defendant on the
particular charge, the defendant must have the benefit
of it and cannot be found guilty upon that charge."
And if you have a reasonable doubt, your verdict
ought to be not guilty.
I want to say a few more words about reasonable
doubt. A standard which produces great satisfaction to
me, and I think should to you, the defendant has an
absolute right to hold the Commonwealth to this
strictness of proof. No consideration of public
safety, nor righteous indignation at atrocious crime
which shocks the community, nor zeal for the
suppression of crime can give to the Court and jury the
discretion, or the right to relax this standard of
proof; nor to strain the evidence to any conclusion not
warranted by its fair convincing force.
This is a government of laws and not of men. If
the guilty go unpunished today because jurors observed
their oath and rendered a true verdict according to the
evidence and the law, then the community and every
citizen in it is still safer, because the law has
prevailed.
The Court cannot state this principle too strongly
as a principle to be observed, to guard the rights of a
defendant. And I would be remiss in my duty if I did
not with equal force remind you that the community is
not safe if only the rights of those charged with crime
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are safeguarded and protected and the rights of the
Commonwealth to have a verdict if guilt is proved
beyond a reasonable doubt is just as absolute and just
as sacred as the right of a defendant to an acquit[t]al
if the proof does not meet that test.
To the extent that specific portions of the instruction up
to this point had been less than clear, the jury explicitly was
told that this restatement was equivalent and complete. Although
the judge repeated in this part of the instruction the "moral
certainty" phraseology, he contrasted a moral certainty only with
an absolute or mathematical certainty. See Pinckney, 419 Mass.
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at 347 (finding that the identical language "properly impressed
upon the jury the need to reach a subjective state of near
certitude of the guilt of the accused"). See also supra at 9-10.
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Moreover, the judge again emphasized that the proof must leave
"reasonable men" with "a clear and settled conviction of guilt,"
and, failing that, the defendant must be found innocent. With
the language discouraging a verdict for the prosecution unless
based on the law and the evidence, this alternative charge was
entirely correct. In our view, even the cumulative effect of the
earlier imperfections was offset by this lengthy and independent
charge, which the judge praised to the jury as "precise and more
scholarly."
In sum, this instruction possessed a number of flaws, as did
the instructions reviewed in Victor. As we look at some of the
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less defensible language, we find it difficult to say that a
juror could not have been led astray. But as the Court reminded
us in Victor, 114 S. Ct. at 1243, the standard is not "could
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have" but rather: is there a reasonable likelihood that the jury
understood the instruction as a whole to permit conviction based
on a level of proof below that required by the Due Process
Clause? Our review convinces us that there was no such
likelihood in this case. Accordingly, it provides no basis for
disturbing Gilday's conviction.
III. Brady/Giglio Claims
___________________
Gilday contends that the government's failure to disclose
cooperation agreements with two accomplices who testified as
prosecution witnesses, and the failure to correct their false
testimony that no deals were made, violated his due process
rights as established in Brady v. Maryland, 373 U.S. 83, 87
_____ ________
(1963) and Giglio v. United States, 405 U.S. 150, 154-55
______ ______________
(1972).8 He additionally raises separate Brady claims based on
_____
the government's failure to disclose exculpatory statements by an
eyewitness to the crime who did not testify at trial and by two
trial witnesses. We have examined these claims with care, and
have concluded that none of the asserted nondisclosures nor all
of them cumulatively constitute reversible error.
We begin our discussion by noting the relevant standards.
A Brady error occurs when the prosecution suppresses "material"
_____
evidence that is favorable to the accused. See Kyles v. Whitley,
___ _____ _______
No. 93-7927, 63 U.S.L.W. 4303, 4307 (U.S. April 19, 1995). In
____________________
8 Brady established a prosecutor's obligation to turn over
_____
exculpatory material. In Giglio, the Supreme Court held that the
______
obligation includes evidence that would impeach the credibility
of government witnesses.
-19-
most circumstances, exculpatory evidence is material only "`if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different,'" id. (quoting United States v. Bagley, 473 U.S.
___ _____________ ______
667, 682, 685 (1985)).9 We refer to this as the Bagley
______
standard.
A standard of materiality more favorable to the defendant
applies, however, when previously undisclosed evidence reveals
that the prosecutor knowingly used perjured testimony or,
"equivalently," knowingly failed to disclose that testimony used
to convict the defendant was false. Bagley, 473 U.S. at 678-80.
______
In such situations, "`a conviction . . . is fundamentally unfair,
and must be set aside if there is any reasonable likelihood that
the false testimony could have affected the judgment of the
_____
jury,'" Kyles, 63 U.S.L.W. at 4307 n.7 (quoting United States v.
_____ _____________
Agurs, 427 U.S. 97, 103 (1976)) (emphasis added).10 We shall
_____
label this test the Agurs standard.
_____
____________________
9 This standard applies when the government failed to
respond to a specific defense request for exculpatory evidence,
and when the government failed to volunteer exculpatory evidence
never requested, or requested only in a general way. Kyles v.
_____
Whitley, No. 93-7927, 63 U.S.L.W. 4303, 4307 (U.S. April 19,
_______
1995).
10 Kyles explicitly refers only to the knowing use of
_____
perjured testimony, but we think it implicit that the Court also
________
contemplated application of this test to those "equivalent"
circumstances noted in Bagley. We have applied the Agurs
______ _____
standard in a non-perjury setting, when a prosecutor
intentionally withheld materials relating to a witness's prior
criminal record and to the deals he made with the state. See
___
Ouimette v. Moran, 942 F.2d 1, 10-11 (1st Cir. 1991).
________ _____
-20-
Although the tests for materiality suggest a harmless error-
like inquiry, it is important to note that these standards must
be applied to determine the threshold question: has
constitutional error occurred? Only then does the issue of
harmlessness arise. And, as the Supreme Court's recent decision
in Kyles makes clear, see 63 U.S.L.W. at 4308, the approach to
_____ ___
harmless error in the Brady/Giglio context has evolved as the
____________
Chapman formulation of "harmless beyond a reasonable doubt" has
_______
yielded in habeas cases to the softer Brecht test of whether the
______
error "`had substantial and injurious effect or influence in
determining the jury's verdict,'" Brecht v. Abrahamson, 113 S.
______ __________
Ct. 1710, 1722 (1993) (quoting Kotteakos v. United States, 328
_________ ______________
U.S. 750, 776 (1946)).
In Kyles, the Court observed that harmless error analysis is
_____
inapplicable to a Brady/Giglio claim arising in a habeas case
____________
outside the perjury-related context. 63 U.S.L.W. at 4307-08 &
n.7 (noting that "our decision today does not address any claim
under the first Agurs category [i.e., perjury-related]"). The
_____
reason is compelling: the Bagley materiality standard necessarily
______
requires a court to find an impact on the jury verdict
sufficiently substantial to satisfy the Brecht harmless error
______
test. Thus, in the non-perjury setting, all that is required or
appropriate is the one-step Bagley inquiry into reasonable
______
probability.
But a prosecutor's knowing use of false testimony presents a
different analytical situation. As Bagley makes clear, a
______
-21-
petitioner is given the benefit of a friendly standard (hostile
to the prosecution) to establish materiality: whether a
reasonable jury could have been affected. 473 U.S. at 678-80.
_____
This is, in essence, the old Chapman inquiry. Id. at 679-80 &
_______ ___
n.9. Applying this standard in most cases involving perjury or
its equivalent will likely result in a finding of constitutional
error. Scaling that lower materiality hurdle, however, still
will leave the petitioner facing the Brecht harmless error
______
inquiry into whether the perjured testimony in fact had a
substantial and injurious effect or influence on the jury's
verdict.11 In other words, where the Agurs standard applies,
_____
it is quite possible to find a constitutional violation, but to
conclude that it was harmless. When faced with such a claim,
therefore, our inquiry is necessarily two-pronged: was there a
failure to disclose material exculpatory evidence, and, if yes,
was such failure harmless?
Having laid out this framework, we now turn to petitioner's
claims.
A. Prosecutorial agreements with Fleischer and Valeri
__________________________________________________
Petitioner argues that the government deliberately relied on
the false testimony of two witnesses, Fleischer and Valeri, who
denied that any deals had been made with the prosecution for
their cooperation. The district court, like the Commonwealth
courts before it, concluded that no error occurred with respect
____________________
11 It is the government's burden, of course, to demonstrate
that the error is harmless. O'Neal v. McAninch, 115 S. Ct. 992,
______ ________
995-98 (1995).
-22-
to Valeri because his acknowledgement at trial of "a generalized
expectation of leniency" (i.e., that his cooperative trial
testimony would be brought to the court's attention) served to
disclose his possible motivation to testify favorably for the
government. We agree with this determination essentially for the
reasons expressed by the district court, and do not address it
further. See 866 F. Supp. at 634-36.
___
The Supreme Judicial Court did conclude, however, that the
government improperly failed to disclose a deal made with the
attorney for the other witness, Fleischer. Called in rebuttal,
Fleischer testified most crucially that, in a discussion shortly
after the robbery, Saxe and Power accused Gilday of being
"trigger-happy" and that Gilday said, "What did you want me to
do, the cop was right there, he was only thirty seconds behind
you."
In cross-examination, Fleischer specifically denied that any
deals had been made for his testimony, and testified further that
his only promise from the Commonwealth was that high bail would
be requested but not demanded. In fact, as found by a Superior
Court judge following a hearing on petitioner's motion for new
trial, the prosecutor had told Fleischer's attorney that, in
exchange for Fleischer's testimony, he would attempt to reach a
disposition of the charges against Fleischer that would leave him
with no criminal record.12 Commonwealth v. Gilday (Gilday II),
____________ ______ __________
____________________
12 Petitioner states in his brief, although without
citation, that the nine indictments against Fleischer, including
accessory after the fact to first degree murder, in fact were
-23-
382 Mass. 166, 175, 415 N.E.2d 797, 802 (1980). The motion judge
also found that, as the prosecutor and Fleischer's attorney had
agreed, Fleischer was not told of this specific arrangement; he
knew only that it would be "in his best interest to testify in
the case." Id.
___
The Supreme Judicial Court noted that neither the lack of a
formal agreement with Fleischer nor Fleischer's lack of knowledge
of the specifics of the understanding relieved the prosecutor of
his obligation to disclose material facts concerning Fleischer's
credibility and possible bias. Indeed, the court noted that to
hold otherwise would be "in effect [to] approve the evasion of
the Giglio rule by means of artful device." 382 Mass. at 177,
______
415 N.E.2d at 803. That court, however, agreed with the motion
judge that the suppression of this information had no effect on
the jury and therefore did not require a new trial. 382 Mass. at
177-78, 415 N.E.2d at 803-04. The district court reached the
same conclusion in rejecting the habeas petition. 866 F. Supp.
at 633.13
Our review of the determination that the prosecutor had a
duty to disclose the Fleischer arrangement is de novo. See
__ ____ ___
Ouimette, 942 F.2d at 4. We apply the Agurs standard of
________ _____
____________________
dropped after he testified against Gilday and Saxe in their
separate trials. The Commonwealth does not dispute this
representation.
13 Neither the Supreme Judicial Court nor the district court
found it necessary to state precisely whether the applicable
Brady standard had been met and a constitutional violation thus
_____
established because each found the asserted error harmless in any
event.
-24-
materiality, more favorable to the petitioner, because of the
prosecutor's deliberate strategy to misrepresent Fleischer's
credibility and the knowing acquiescence in Fleischer's false
testimony. See id. at 11; see also supra at 19-20.
___ ___ ___ ____ _____
As we have explained, the relevant inquiry is whether there
is any reasonable likelihood that the false testimony could have
_____
affected the judgment of the jury. To put the question the other
way around: can we say that no reasonable jury could have been
affected by the undisclosed information? We think the answer is
fairly obvious. The information withheld by the prosecutor would
have provided the basis for powerful impeachment of Fleischer's
testimony. Not only did Fleischer deny that any deals had been
struck on his behalf, but he also claimed that he was testifying
only because a man had been killed and he wanted to "see justice
done."
The fact that his lawyer and the prosecutor had come to an
understanding would have markedly strengthened the defense's
claim that Fleischer was highly motivated to implicate Gilday to
protect himself. First, it would have permitted the jury
reasonably to infer that, even if the "wink and nod" deal had not
been explicitly communicated to Fleischer, he must have been
given some indication that testimony helpful to the government
would be helpful to his own cause. Cf. Bagley, 473 U.S. at 683
___ ______
(making reward contingent upon outcome "served only to strengthen
any incentive to testify falsely in order to secure a
conviction"). In addition, evidence of the deal would have
-25-
reinforced the testimony of defense witness Bond, another
accomplice, who implicated Fleischer as the gunman. The stakes
for Fleischer were substantial indeed if his testimony blaming
someone else could secure his release entirely from criminal
responsibility for a murder he had committed; his motivation to
lie could not have been greater.
Disclosure of the deal in all likelihood would have reduced
substantially, or even destroyed, Fleischer's credibility.
Because the direct accusation of an accomplice is of more than
minimal consequence in a case where the defense is that someone
else was responsible for the charged crime, we think it at least
reasonably likely that the suppression of this evidence could
have affected the jurors' judgment. Presumably, the government
agrees with this assessment; for what other reason would the
prosecutor have gone to such lengths to keep the information from
them?
Recognition of error does not end our task, however.
Although we have determined that the jury might have been
_____
affected by knowledge of Fleischer's deal, and thus that the
prosecution's suppression of the evidence violated its
constitutional obligation under Brady and Giglio, we also must
_____ ______
consider -- to restate the Brecht standard -- whether the error
______
was of such magnitude that it actually casts doubt on the
integrity of the verdict. This is the difference between a
possibility and a probability. See O'Neal v. McAninch, 115 S.
___ ______ ________
Ct. 992, 994 (1995) (to find harmlessness, reviewing court must
-26-
conclude that error more likely than not had no effect on the
verdict). Our review of the evidence indicates that, even if the
jury had assigned no weight to Fleischer's testimony, the
substance of the case against Gilday would have remained the
same. The other evidence, moreover, was considerable. Cf.
___
Giglio, 405 U.S. at 154-55 (government's case depended "almost
______
entirely" on witness whose deal with prosecution was not
disclosed).
Indeed, Fleischer was a rebuttal witness, and as such simply
repeated the earlier testimony of another witness, Valeri, that
Gilday had admitted to being the shooter. Valeri had reported
that Gilday was at the scene of the robbery in the car from which
the shots were fired, that Gilday possessed the murder weapon
after the crime, and that Gilday said that he had waited at the
scene of the robbery until the police officers arrived because
"he had always wanted to shoot a police officer."
Three eyewitnesses testified, all disinterested outsiders
who were in close proximity to the shooting. The strongest,
Becker, made an in-court identification of Gilday, who was
sitting unobtrusively with spectators. He also had chosen
Gilday's picture from a spread of photographs shown to him two
months after the shooting. He further recalled at trial, after
having stood up to make his identification, that the gunman, like
himself (and like Gilday), had a little bald spot on the top of
his head. Cross-examination elicited that the only description
Becker had given police at the time of the shooting was that the
-27-
gunman was a white male and that he probably had seen Gilday's
picture in the media; while acknowledging the possibility that
this influenced him, he insisted that his identifications were
based solely on his observations at the time of the crime.
A second witness, Goddard, described the gunman as a white
male in his late thirties, clean-shaven, with a receding
hairline, hair combed straight back, wearing an olive jacket --
all consistent with Gilday's appearance. True, he did not pick
out Gilday's picture from spreads shown him on the day of the
shooting, or two weeks later. On the first occasion, he saw "a
couple of pictures that resembled the man that I saw" but did not
pick them out because he was not sure. On the second occasion,
he had seen Gilday's picture in the papers and recognized it in
the spread.
The third witness, Gaudette, described the gunman as of
medium build, similar to himself, with weight around 185 pounds,
height five feet six or seven inches, in his thirties, with dark
hair. He picked Gilday's picture out of a photospread two months
after the shooting. Then, in the courtroom, he failed to
identify Gilday, who was not wearing glasses at the start of
Gaudette'sperusal butput themon asGaudette continuedhis scrutiny.
On the whole, we consider this eyewitness evidence, while
not without weaknesses, impressive. Further, the evidence was
overwhelming that Gilday was involved in the crime. In his own
testimony, he acknowledged that he had bought the semiautomatic
weapon and one of the cars that had been used in the robbery and
-28-
murder, that he had stolen a license plate and affixed it to
another car used by the robbers, and that he took some of the
holdup money from an apartment where Bond, Saxe, Power and
Fleischer were gathered after the crime. In addition, an
acquaintance of the group, McGrory, testified to a conversation
with Gilday after the robbery about McGrory's having figured out
who was responsible for the crime. McGrory stated that, during
the exchange, Gilday first claimed that he had not heard that a
police officer had been critically wounded, but later said "I did
it" and warned that even if Gilday were imprisoned on death row,
he would take care of McGrory if he said anything.
While neither the activities to which Gilday confessed nor
McGrory's testimony require a finding that Gilday was the
gunman14 -- or even at the scene of the robbery -- the other
evidence provided a strong link between his confessed complicity
in the crime and the alleged role of gunman. Fleischer's
testimony on rebuttal corroborated the government's case, but it
shed no new or different light on it.
Moreover, some impeachment of Fleischer did take place. A
____
former FBI agent, George Bernard Kennedy, testified in
surrebuttal that Fleischer had told him in the spring of 1971
that Gilday had not shot the police officer. In addition, as we
have noted, Fleischer was implicated by defense witness Bond as
the gunman; that testimony made transparent a motive to accuse
____________________
14 Gilday maintains that none of this testimony explicitly
refers to his being the gunman, but simply indicates
participation generally in the group's pursuits.
-29-
someone else. Thus, while the challenge to Fleischer's
credibility would have been measurably more potent with the
withheld information, he was already a sullied witness.
In sum, we are persuaded that suppression of the Fleischer
agreement did not have a substantial and injurious effect or
influence in determining the jury's verdict. The nature of the
other evidence makes it unlikely that even a stinging impeachment
of Fleischer based on the undisclosed deal would have had the
requisite impact on the jury's deliberations.15 The error was
therefore harmless.16
B. Eyewitness and other statements.
_______________________________
Petitioner also claims error in the government's failure to
disclose exculpatory evidence from three witnesses: (1) a
statement by Michael Finn shortly after the crime that described
the gunman in terms inconsistent with Gilday's appearance; (2) an
FBI report that Bernard Becker, who identified Gilday as the
gunman at trial, stated three weeks after the crime that he could
not provide a description of the gunman; (3) a report that
Fleischer initially denied knowing Gilday when asked by the FBI.
____________________
15 Contrary to petitioner's suggestion, the references to
Fleischer in the prosecutor's closing argument did not
particularly highlight his testimony. Indeed, Fleischer was
significant in the prosecution's summary of the case in part
because defense witness Bond indicated that he was the gunman.
16 Petitioner urges that this is the "unusual case"
identified in Brecht as perhaps warranting habeas relief even if
______
the asserted error did not substantially influence the jury's
verdict. See 113 S. Ct. at 1722 n.9. We do not find that "the
___
integrity of the proceeding" was so infected here as to justify
such an extraordinary remedy.
-30-
To determine the materiality of these pieces of undisclosed
evidence, we apply the Bagley test: whether there is "`a
______
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different,'" Kyles, 63 U.S.L.W. at 4307 (quoting Bagley, 473 U.S.
_____ ______
at 682).
Only two merit more than passing discussion.17 While
recognizing that Finn's first description of the gunman should
have been viewed by the prosecutor at the outset of the trial as
significant exculpatory evidence subject to disclosure, the
vantage of hindsight leads us to conclude that the likely impact
of suppressing it turned out to be slight. At the hearing on
petitioner's second motion for new trial, which was premised in
part on this asserted Brady violation, Finn, who was not called
_____
as a witness at trial, gave a different description of the
shooter -- one consistent with Gilday's appearance. The motion
judge found that Finn, who had a reputation for mental
instability and alcoholism, would have been an unreliable
witness. Gilday I, 367 Mass. at 487-89, 327 N.E.2d at 859-60.
________
The district court credited this finding, 866 F. Supp. at 636,
and we are likewise inclined to do so. Based on the record
before us, it seems most likely that, had Finn testified at
trial, his impact on the jury would have been at best equivocal.
____________________
17 The failure to disclose Fleischer's false statement is
measurably less significant to his credibility than the
cooperation agreement, and our earlier discussion concerning
Fleischer's testimony effectively resolves this issue as well.
-31-
We certainly cannot say that there is a reasonable probability
that his testimony would have materially changed the face of the
trial.
As for Becker, while we appreciate that statements made in
close temporal proximity to the crime are significant in
evaluating an eyewitness's reliability, see Kyles, 63 U.S.L.W. at
___ _____
4310 (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977)), we
______ __________
think it only of modest importance that his identification of
petitioner was preceded by an earlier inability to provide a
description. The fact that someone cannot articulate a
description of an individual does not necessarily undermine the
accuracy of a later identification; the challenge would be
substantially more potent had Becker given an earlier description
inconsistent with his trial testimony.
Moreover, Becker's testimony at trial essentially reflected
the fact that he was unable to give a description at the time of
crime. He stated that he told the police only that the shooter
was "[a] white male," acknowledging that he provided "[n]o other
distinguishing characteristics or descriptions." In these
circumstances, we think the withheld FBI report would have had a
minimal effect upon the jury.
C. Cumulative Impact.
_________________
In its recent decision in Kyles v. Whitley, the Supreme
_____ _______
Court stressed the importance of considering the cumulative
effect of all suppressed evidence in determining whether a Brady
_____
-32-
violation has occurred. 63 U.S.L.W. at 4308. The Court
concluded that, had the prosecution disclosed to competent
counsel the substantial amount of evidence at issue there, a
different result would have been reasonably probable;18 the
jury would have been considerably more likely to have accepted
the defendant's theory that he was framed by a police informant
who was actually the murderer. See id. at 4306.19 Not only
___ ___
would disclosure have severely discredited two of the four
eyewitnesses who were "`the essence of the State's case,'" id. at
___
4310 (quoting district court), but it also would have "entitled a
jury to find that . . . the most damning physical evidence was
subject to suspicion, that the investigation that produced it was
insufficiently probing, and that the principal police witness was
insufficiently informed or candid." Id. at 4313.
___
The circumstances here are markedly different. While the
various pieces of suppressed evidence in Kyles fit together
_____
____________________
18 Indeed, a mistrial was declared in the defendant's first
trial because the jury became deadlocked on the issue of guilt.
63 U.S.L.W. at 4306.
19 The undisclosed evidence in Kyles consisted of six
_____
contemporaneous eyewitness statements with significant
inconsistencies; records of the informant's initial call to the
police stating that he had bought a car like the victim's from
the defendant on the day of the murder; a tape recording of
another conversation between the informant and police officers
further incriminating the defendant; a signed statement from the
informant repeating matters from the tape-recorded discussion,
although with inconsistencies; a computer print-out of license
numbers of cars parked on the night of the crime at the market
where the murder occurred, which did not list the defendant's car
license number; an internal memorandum directing seizure of the
defendant's trash after the informant had suggested the victim's
purse might be found there, and evidence linking the informant to
other crimes at the market and to an unrelated murder.
-33-
factually to make the defense theory of the case more likely, the
evidence here taken cumulatively sheds no new light on the crime
or petitioner's involvement in it. The suppressed material went
primarily to the credibility of witnesses, one of whom (Becker)
acknowledged at trial information equivalent to the undisclosed
evidence. The only significantly potent undisclosed material was
the Fleischer agreement;20 we are sufficiently persuaded that
none of the other evidence adds to its effect in such a way as to
have influenced the jury's judgment. Here, unlike in Kyles, the
_____
whole of the challenge to the prosecution's case was no greater
than the sum of its individual parts. Accordingly, we find no
remediable Brady violation.
_____
IV. Sandstrom Claims
________________
Petitioner argues that the trial judge's charge to the jury
included five mandatory presumptions of intent that violated his
due process rights as established in Sandstrom v. Montana, 442
_________ _______
U.S. 510, 520-24 (1979).21 In a related argument, he
challenges a portion of the instruction foreclosing the jury from
considering an intoxication defense, arguing that it
unconstitutionally relieved the Commonwealth of its burden of
____________________
20 Although we found error in the prosecution's suppression
of the Fleischer agreement, our conclusion that the error was
harmless effectively is equivalent to our finding that the other
evidence withheld did not satisfy the Bagley materiality
______
standard. We therefore reconsider the agreement in assessing the
cumulative effect of the government's non-disclosures.
21 Sandstrom held that a jury instruction containing a
_________
presumption that has the effect of relieving the prosecution of
the burden of proof on an element of a charged crime violates the
Due Process Clause. 442 U.S. at 520-24.
-34-
proof on the issue of intent as recognized by the Supreme
Judicial Court in a series of cases beginning with Commonwealth
____________
v. Henson, 394 Mass. 584, 592-93, 476 N.E.2d 947, 953-54
______
(1985).22
The SJC reviewed the instructions on intent only as they
related to the issue of intoxication. The court ruled that the
intoxication portion of the charge correctly reflected the law at
the time of petitioner's trial, and that he was not entitled to
retroactive application of a change in the law that was announced
thirteen years later. See Commonwealth v. Gilday (Gilday III),
___ ____________ ______ __________
409 Mass. 45, 47, 564 N.E.2d 577, 579 (1991). The court found
that no other assertion of instructional error, including the
more general Sandstrom claims, had been raised in the relevant
_________
(fourth) motion for new trial. It therefore held that such
additional claims were waived. Id., 409 Mass. at 46 & n.3, 564
___
N.E.2d at 578 & n.3.
The district court did not explicitly address the
intoxication issue. Petitioner raises it on appeal in limited
fashion, recognizing that we previously have declined to disturb
the SJC's determination that Henson's protection of the
______
intoxication defense is not retroactive. See Robinson v. Ponte,
___ ________ _____
____________________
22 The court stated in Henson that "where proof of a crime
______
requires proof of a specific criminal intent and there is
evidence tending to show that the defendant was under the
influence of alcohol or some other drug at the time of the crime,
the judge should instruct the jury, if requested, that they may
consider evidence of the defendant's intoxication at the time of
the crime in deciding whether the Commonwealth has proved that
specific intent beyond a reasonable doubt." 394 Mass. at 593,
476 N.E.2d at 954.
-35-
933 F.2d 101, 103-05 (1st Cir. 1991). We decline to revisit that
precedent here, and the claim is therefore unavailing.23
As for the general Sandstrom claims, the district court gave
_________
two reasons for rejecting them. First, it concluded that
petitioner was not entitled to protection from the Sandstrom rule
_________
because that case was decided after his conviction became final,
and, under Teague v. Lane, 489 U.S. 288 (1989), the principle
______ ____
established there was not retroactive. Second, the court held
that the SJC's refusal to consider the "non-intoxication claims"
based on petitioner's procedural default constituted an
independent state law ground for rejecting those claims, thus
barring habeas review unless the petitioner can show "cause
for", and "prejudice from" his noncompliance with the
Commonwealth's procedures. See Wainwright v. Sykes, 433 U.S. 72,
___ __________ _____
86-87 (1977); Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir.
_____ ______
1994).24
____________________
23 To the extent that petitioner seeks to raise the federal
constitutional claim directly on appeal, we decline to address
the issue. His brief contains only two paragraphs on the
intoxication instruction, primarily directed to the Supreme
Judicial Court's caselaw and our decision in Robinson v. Ponte.
________ _____
His reference to arguments raised in the district court, without
elaboration, is insufficient to warrant our review. See Cray
___ ____
Communications v. Novatel Computer Systems, 33 F.3d 390, 396 n.6
______________ ________________________
(4th Cir. 1994) (adopting by reference memoranda filed in the
district court is a practice "that has been consistently and
roundly condemned by the Courts of Appeals"); United States v.
_____________
Bales, 813 F.2d 1289, 1297 (4th Cir. 1987) (noting that "other
_____
courts have stated that arguments incorporated by reference need
not be considered on appeal").
24 Petitioner has not argued that there was "cause for" or
"prejudice from" his failure to comply with the procedural rule,
relying instead on the assertion that no default occurred.
-36-
We need not delve into the retroactivity issue because we
agree with the district court's judgment that the non-
intoxication Sandstrom claims are procedurally barred.
_________
Petitioner's fourth motion for new trial and his memorandum in
support of the motion focused entirely on the effect of the
intoxication instruction on the jury's determination of intent.
Although the memorandum cited to Sandstrom and related precedent,
_________
i.e., In re Winship, 397 U.S. 358 (1970) and Mullaney v. Wilbur,
_____________ ________ ______
421 U.S. 684 (1975), it is apparent to us that those cases were
invoked in support of the intoxication argument and not as a
basis for a general challenge to the presumptions on intent
contained in the instruction. In these circumstances, we cannot
contradict the SJC's determination that, as a matter of
Massachusetts law, the motion did not preserve the Sandstrom
_________
claims for appeal. See Ortiz, 19 F.3d at 713 n.5 ("the law of
___ _____
Massachusetts is what the SJC says it is"). Cf., e.g., Williams
___ ____ ________
v. Lane, 826 F.2d 654, 660 (7th Cir. 1987) (state court
____
determination of waiver does not preclude federal habeas review
where record shows that petitioner fully complied with state's
articulated procedural rules). Accordingly, we do not consider
them.25
____________________
25 We suspect, however, that even if considered on the
merits, the Sandstrom claims would be deemed harmless error.
_________
Petitioner's defense was not that he lacked the requisite mens
rea to be found guilty on the crimes charged, but that he was not
the gunman who shot Officer Schroeder. See Bembury v. Butler,
___ _______ ______
968 F.2d 1399, 1402-1404 (1st Cir. 1992) (instruction creating
mandatory presumption of intent was harmless where question of
intent never raised: "[Defendant] merely presented an alibi,
claiming he was not the culprit.")
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V. Pretrial Publicity
__________________
Petitioner contends that he was denied his right to a fair
trial because of extensive pretrial publicity, specifically
claiming that the trial judge erred in denying his motion for an
additional continuance of the trial date and for a change of
venue.26
Essentially for the reasons expressed by the Supreme
Judicial Court and the district court, we find no reversible
error in the trial judge's handling of the case in this respect.
See Gilday I, 367 Mass. at 491-93, 327 N.E.2d at 861-62; Gilday
___ ________ ______
v. Callahan, 866 F. Supp. at 623-24.
________
VI. Conclusion
__________
We have examined with care each of petitioner's claims of
constitutional error. Having found that the only meritorious
claim -- the Brady violation in suppressing the Fleischer
_____
agreement -- was harmless, we affirm the judgment of the district
court denying petitioner's writ of habeas corpus.
Affirmed.
________
____________________
26 The trial originally was scheduled to start in April
1971, about six months after the crime, but the court granted a
continuance and it did not begin until February 1972.
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