Filed: Oct. 20, 2006
Latest Update: Feb. 21, 2020
Summary: Some, of this evidence, but not Strongs first statement, was recovered, after the Supreme Judicial Courts order but before the trial court, conducted an evidentiary hearing., 13, United States v. Bey, 188 F.3d 1, 9 (1st Cir.missing witness argument violated Olszewskis due process rights.
United States Court of Appeals
For the First Circuit
No. 05-1833
ANTHONY OLSZEWSKI, III,
Petitioner, Appellant,
v.
LUIS SPENCER,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Selya and Dyk,* Circuit Judges.
David J. Nathanson for the appellant.
Cathryn A. Neaves, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief, for the appellee.
October 20, 2006
*
Of the Federal Circuit, sitting by designation.
DYK, Circuit Judge. This is a habeas case. The
petitioner, Anthony Olszewski III (“Olszewski”), was convicted of
first-degree murder in the Massachusetts state courts. He claims
that his due process rights were violated when the Commonwealth
permitted the destruction of exculpatory evidence prior to trial
and made improper statements in closing arguments at trial.
Olszewski also seeks relief on the grounds that he received
ineffective assistance of counsel and that the trial court
improperly dismissed a sitting juror based on ex parte
communications. We conclude that none of these claims warrants
habeas relief, and therefore affirm the district court’s denial of
the petition.
I.
Joanne Welch was murdered sometime between 7 and 9 P.M.
on January 28, 1982. Olszewski and Welch had been involved in a
romantic relationship that ended approximately one month before
Welch’s murder. Prior to the murder, Welch had begun dating
another man, which upset Olszewski. On the day of the murder,
several of Olszewski’s friends heard Olszewski threaten to kill
Welch. That same day, Welch told family members and coworkers that
she planned to drive to Olszewski’s house after work to retrieve
her personal belongings and some money. She intended to return
home for dinner and expected a call from her new boyfriend to
arrange a date for the evening of January 28. Welch visited
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Olszewski’s house and retrieved her belongings, but never returned
home.
On January 29, 1982, on Great Plains Road in West
Springfield, Massachusetts, the police located shoes and earrings
belonging to Welch along with two teeth, a strip of chrome
automobile trim, and a belt hanging from a tree. The police found
Welch’s body seven miles away. She had fractures to her jaw and
pelvis, bruising, abrasions, and several missing teeth. The teeth
found on Great Plains Road appeared to be Welch’s. Welch’s
injuries were consistent with blows from a fist or foot and
strangulation. On January 30, the police found Welch’s car parked
next to a Westfield, Massachusetts bowling alley. There was blood,
hair, and fiber belonging to Welch in the car, and a strip of
chrome trim was missing from the passenger side.
Olszewski admitted that Welch came to his house on
January 28; his defense was alibi during the period of time that
the murder was committed. He claimed that Welch left his house
around 6:30 that evening, and that between 7 and 9 P.M.,1 he was in
the company of his friend, Philip Strong. Olszewski met other
friends around 9 P.M.
1
Exactly when Olszewski allegedly met with Strong is
unclear. The Supreme Judicial Court found that Olszewski “told the
police that he was in the company of Philip Strong between 7 and 9
P.M.” Commonwealth v. Olszewski, 416 Mass. 707, 710,
625 N.E.2d
529, 533 (1993). At trial, however, Officer Whitehead testified
that Olszewski said that he met Strong at the Y.M.C.A. at 7:30 P.M.
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On January 31, 1982, Strong provided the police with a
written statement corroborating Olszewski’s alibi. On February 15,
1982, the police questioned Strong a second time, and Strong
admitted that the first statement was false. Contrary to
established procedures, the police did not copy the first statement
and left Strong alone with the only copy of the statement. Strong
ripped it up and threw the pieces in the trash. Strong then
provided the police with a second statement that stated that, on
January 29, Olszewski told Strong that Olszewski had murdered
Welch. The police did not attempt to retrieve the first statement
until later that night when Officer Sypek looked in the trash for
the pieces and found that the trash had already been emptied. The
first statement was never recovered.
On February 12, 1983, Olszewski was convicted of Welch’s
murder based in large part on Strong’s testimony. On direct
appeal, the Massachusetts Supreme Judicial Court vacated the
conviction and remanded the case based on the prosecution’s use at
trial of evidence that was lost or destroyed.2 The Supreme
Judicial Court instructed the trial court that on remand, under
2
The lost evidence at issue on appeal included
Strong’s first statement, the belt, blood samples taken from the
road and parking lot, a paint chip taken from Welch’s skin, a
carpet swatch taken from Welch’s vehicle, an automobile window
crank handle, and a plastic cup lid found in Welch’s vehicle. Some
of this evidence, but not Strong’s first statement, was recovered
after the Supreme Judicial Court’s order but before the trial court
conducted an evidentiary hearing.
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Commonwealth v. Willie, 400 Mass. 427,
510 N.E.2d 258 (1987),
“[f]or each piece of missing evidence shown to be potentially
exculpatory, the judge must weigh the culpability of the
Commonwealth and its agents, the materiality of the evidence, and
the potential prejudice to the defendant.” Commonwealth v.
Olszewski,
401 Mass. 749, 757,
519 N.E.2d 587, 592 (1988). It is
unclear whether the Supreme Judicial Court’s decision to vacate was
based in part on the destruction of Strong’s first statement. On
the one hand, there is language in the opinion directing the trial
court to consider the destruction of Strong’s first statement on
the remand. On the other hand, the Supreme Judicial Court
concluded that “the defense counsel fully described to the jury the
circumstances of the making and the destruction of Strong’s first
statement. The defense thoroughly cross-examined, and effectively
impeached, Strong. The judge properly admitted Strong’s
testimony.”
Nonetheless on remand the trial court considered the
remand order as extending to the destruction of Strong’s first
statement. The trial court held a series of hearings and
suppressed certain evidence on the ground that the state destroyed
the predicate physical evidence.3 At the hearing, the trial judge
considered whether the destruction of Strong’s first statement
3
The trial judge suppressed all results of tests
conducted on blood stains found at Great Plains Road and beneath
Welch’s car in the bowling alley parking lot. The judge also
suppressed the results of blood tests taken on the belt.
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should be grounds for dismissing the indictment. The judge stated
in his findings of fact:
I do not believe that Captain Sypek and
Detective Zielinksi were so obtuse that they
did not realize that the first statement had
been destroyed until after Strong had given
his second statement and left the station and
until after the wastepaper basket in the
conference room had been emptied. On the
contrary, I strongly suspect that they
deliberately left the statement on the
conference room table and left the room in the
hope that Strong would destroy the statement
and give a new one.
Nonetheless, in finding that the indictment should not be
dismissed, the trial judge ruled that, although the police were
“incredibly foolish,” he did “not believe it was done maliciously.”
Leaving Strong alone with his first statement “did not amount to a
bad faith effort to deprive the defendant of exculpatory evidence.”
After “[w]eighing the culpability of the police against the
materiality of the evidence and the potential prejudice to the
defendant” under Massachusetts law, the court denied Olszewski’s
motion to dismiss the indictment.
At the second trial, the judge allowed Olszewski to
examine witnesses concerning the circumstances of the destruction
of the statement; permitted Olszewski to cross-examine the police
about the contents of the statement; and gave a jury instruction
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regarding the lost statement.4 On February 5, 1990, Olszewski
again was convicted of first-degree murder. He was sentenced to
life in prison. On his second direct appeal to the Supreme
Judicial Court, Olszewski argued, inter alia, that (1) Strong’s
testimony should have been excluded because Strong’s original
statement was destroyed; (2) the prosecutor made improper
statements during closing arguments; and (3) the trial court’s
dismissal of a sitting juror based on ex parte communications
between the juror and the court violated Olszewski’s federal
constitutional rights. Commonwealth v. Olszewski, 416 Mass. 707,
625 N.E.2d 529 (1993). The Supreme Judicial Court rejected these
arguments and affirmed the conviction.
After the Supreme Judicial Court affirmed his conviction,
Olszewski filed a motion for a new trial claiming that his trial
counsel was ineffective for failing to call his father at a witness
and that his appellate counsel was ineffective for failing to raise
an ineffective assistance argument on direct appeal. The trial
judge denied the motion on the merits. Olszewski through counsel
later filed a motion to amend his motion for a new trial. This
motion to amend included a claim, raised for the first time, that
his trial counsel was ineffective for failing to inform the court
4
The jury instruction stated, “If the jury believes
that the police destroyed, concealed, condoned or participated in
the destruction or concealment of any statement of any witness, the
jury may infer that the destroyed or concealed statement contained
something unfavorable to the Commonwealth’s case.”
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about the reason for not calling Olszewski’s father as a witness
(on the theory that the court would then have refused to allow the
prosecution to rely on the father’s failure to testify). The court
denied the motion to amend on the ground that the defendant had
waived the issue by failing to present it in his motion for a new
trial. A single justice of the Supreme Judicial Court denied
Olszewski’s petition for leave to appeal because his claim was “not
new.”
On December 5, 2001, Olszewski filed this petition for a
writ of habeas corpus in the United States District Court for the
District of Massachusetts. Olszewski raised the three arguments
that he raised on direct appeal and included the ineffective
assistance claim that he raised in his motion to amend.
On January 18, 2005, the magistrate judge issued a
detailed report recommending that Olszewski’s petition be rejected.
In her recommendation, the magistrate judge first addressed the
destruction of Strong’s original statement. Although the judge
assumed that the police acted in bad faith in allowing Strong to
destroy the statement, she ruled that the loss of evidence did not
violate Olszewski’s due process rights because, under California v.
Trombetta, 467 U.S. 479, 485 (1984), Olszewski could recreate the
substance of the document through cross-examining witnesses at
trial.
The magistrate judge then addressed whether the
prosecutor’s statements during closing argument violated
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Olszewski’s due process rights. As to three of the allegedly
improper statements, the magistrate judge found that the trial
court’s jury instruction cured any error. With respect to the
remaining two statements (as to which there was no instruction),
the magistrate judge also concluded that there was no
constitutional error. The prosecutor’s misstatement that two of
Olszewski’s alibi witnesses waited to testify until eight years
after the murder, while erroneous, was a “fleeting reference in the
midst of a detailed challenge to the veracity of these alibi
witnesses’ testimony” and “did not improperly taint the trial.”
As to the last allegedly improper comment, the magistrate judge
found that the prosecutor did not act improperly in asking the jury
to infer that the failure of Olszewski’s father to testify meant
that his testimony would have been adverse to Olszewski.
Next, the magistrate judge found that Olszewski’s
ineffective assistance of counsel claim was procedurally defaulted
because it was clear that neither the trial court nor the single
justice of the Supreme Judicial Court reached the merits of the
claim. Finally, the magistrate judge found that the trial court’s
ex parte communications with and the dismissal of a juror were not
improper because the juror was replaced with an alternate that
Olszewski’s counsel had selected and any possible error was
harmless.
On March 30, 2005, the district court issued an order
adopting the magistrate judge’s findings and denying Olszewski’s
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petition without holding an evidentiary hearing. This appeal
followed. This court has jurisdiction pursuant to 28 U.S.C. §§
1291 and 2253.
II.
Where the district court does not hold an evidentiary
hearing, we review the district court’s denial of habeas corpus
relief without deference. Evicci v. Maloney, 387 F.3d 37, 39-40
(1st Cir. 2004); Correia v. Hall,
364 F.3d 385, 387-88 (1st Cir.
2004).
This court’s review of petitioner’s claims is governed by
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218-19
(1996). Under AEDPA, we may only grant the petition if the Supreme
Judicial Court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or “was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” § 104(3)(d).
Here, we conclude that there is no right to habeas relief. With
respect to most of the claims, petitioner’s constitutional rights
were not violated; in the case of petitioner’s ineffective
assistance of counsel claim, we find that his claim was
procedurally defaulted.
III.
Olszewski first contends that his constitutional due
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process rights were violated when the Commonwealth failed to
preserve Strong’s first statement.
A.
It is undisputed that Strong’s first statement
corroborated Olszewski’s alibi and that Strong destroyed the only
existing copy of his first statement. Strong testified that he
gave the first statement on January 31, 1982, in the presence of
Detective Edward Sypek and one or two officers whose names Strong
could not recall.5 At both the evidentiary hearing and at
Olszewski’s second trial, Strong testified that his first statement
recited that, between 7 and 9 P.M. on January 28, 1982, Strong and
Olszewski were talking in the Y.M.C.A. parking lot.6 At trial,
Detective Sypek confirmed that the statement “sa[id] I [Strong] was
with Tony [Olszewski] from seven to nine.”
5
The trial court found that Strong told the police
and wrote in his first statement that:
on January 28[, 1982] he had been driving around in his
own car at about 7:00 P.M. when he saw the defendant in
his car, parked by the old Y.M.C.A. on Upper Church
Street. He said he pulled his car alongside the
defendant’s car, that the two talked for about an hour
and a half, and that Joanne Welch was not mentioned at
all in the course of the conversation. He said the
defendant left shortly before 9:00 P.M. and that he did
not see him for the rest of the evening.
The Supreme Judicial Court adopted these factual findings.
6
On cross-examination, Strong admitted that his first
statement might have said that he was with Olszewski between 7:30
and 8:30 P.M., but his “memory [was] that it was sometime between
seven and nine.”
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At trial, Strong testified that when he returned to the
police station on February 15, 1982, Officer Sypek yelled at him
and accused him of lying in his first statement. Strong then
confessed that his first statement was false. After he admitted
that the statement was false, the police violated their established
procedures by failing to photocopy the first statement and leaving
Strong alone in an interview room for some period of time with the
only existing copy of the statement. Strong ripped up his first
statement and threw the pieces in the trash can while he was alone
in the interview room. The police did not immediately attempt to
retrieve the pieces from the trash. Although Officer Sypek later
looked for the pieces, the trash had already been emptied by the
cleaning service.
Strong gave his second statement on the same day that he
destroyed his first statement. In the second statement, Strong
said that he was not with Olszewski on January 28, but instead
encountered him on January 29, at which time Olszewski “told me
that he had killed Joanne Welch,” and stated that “he wanted to go
up and dispose of the body.” They got into Strong’s car, and
Strong drove toward the location where Welch’s body was found.
On February 16, 1982, Strong gave the police a
supplemental statement detailing his activities on January 28,
1982. He stated that he was having dinner with his fiancee at a
steakhouse in Holyoke between 7:40 P.M. and 9 P.M. on January 28.
At trial, Strong was a key prosecution witness. He
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testified to the substance of the second statement and elaborated
further:
[Olszewski] said that Joanne had stopped over
his house and they had an argument about her
new boyfriend there, and Joanne had asked
[Olszewski] for h[er] money and she said that
if he didn’t give her her money back, that she
would tell the cops about the robberies at the
Westfield Mobil station. And then [Olszewski]
said that they got into the car and drove over
to Bear Hole. He got in Bear Hole and started
to strangle her . . . and he wrapped a belt
around her neck, dragged her out of the car,
threw the belt away, stomped on her neck with
his heel of his shoe, then ran her over with
the car several times. One of the times she
got stuck underneath the car. He got out,
pulled her out underneath the car, put her in
the car, and then drove her up there to Shaker
Road where he threw the body off, and then
parked the car at the bowling alley.
As they approached the location of Welch’s body, “in front of us
was a state trooper’s car and some yellow tape . . . and
[Olszewski] said that’s where he had dumped the body, turn around.”
Strong turned the car around and drove to a Westfield bowling
alley, where Olszewski “pointed out where he had parked Joanne’s
car.” Strong testified that he drove Olszewski back into West
Springfield and eventually dropped him off.
B.
“It is axiomatic that [Brady v. Maryland, 373 U.S. 83
(1963)] and its progeny established that a defendant has a due
process right to request and receive evidence that the government
possesses which is material to his guilt or punishment.” United
States v. Femia,
9 F.3d 990, 993 (1st Cir. 1993). To address the
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problem of the loss or destruction of evidence by the prosecution,
“the Supreme Court has developed a framework to analyze ‘what might
loosely be called the area of constitutionally guaranteed access to
evidence.’” Id. (quoting California v. Trombetta,
467 U.S. 479,
485 (1984) and Arizona v. Youngblood,
488 U.S. 51, 55 (1988)). The
Supreme Court’s decisions in Trombetta and Youngblood govern the
constitutionality of the nondisclosure of evidence in “cases in
which the government no longer possesses the disputed evidence.”
Id.
In Trombetta, defendants were charged with drunk driving
and objected to the state’s admission of breath-analysis
tests.
467 U.S. at 483. They complained that the police had destroyed the
original breath samples and that as a consequence they could not
conduct their own tests.
Id. The Supreme Court rejected the
defendants’ due process claim.
Id. at 489. As a threshold matter,
the Court noted that the police “were acting ‘in good faith and in
accord with their normal practice’” when they disposed of the
breath samples.
Id. at 488 (citing Killian v. United States,
368
U.S. 231, 242 (1961)). The Court then held that “more
importantly,” the missing evidence did not “meet [the] standard of
constitutional materiality.”
Id. at 488-89. To satisfy this
standard, the “evidence must both possess an exculpatory value that
was apparent before the evidence was destroyed, and be of such a
nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.”
Id. The Court held
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that neither condition was met. Id. First, the samples were not
apparently exculpatory because “the chances [were] extremely low
that preserved samples would have been exculpatory.”
Id. The
second condition was not met because the defendants had
“alternative means of demonstrating their innocence,”
e.g. inspecting the calibration of the breathalyzer machine or
cross-examining the officer who administered the test.
Id. at 490.
Four years later, in Arizona v. Youngblood, the Supreme
Court considered the police’s failure to preserve blood and semen
samples taken from a rape victim. A police criminologist had
conducted an initial review of the samples, but the state failed to
preserve the samples by refrigeration so that the defendant could
conduct his own tests. 488 U.S. at 53-54. The Youngblood Court
found that the evidence was not apparently exculpatory, even though
it had potentially greater value than the breath samples in
Trombetta, because “[t]he possibility that the semen samples could
have exculpated respondent if preserved or tested is not enough to
satisfy the standard of constitutional materiality in Trombetta.”
Id. at 56 n.*. In explaining Trombetta’s “apparently exculpatory”
requirement, the Court emphasized that it must be apparent that the
evidence is exculpatory before it is lost or destroyed.
Id. at 56.
The Court then set forth a new standard for lost evidence that is
only “potentially useful.”
Id. at 58. The Court held “that unless
a criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute
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a denial of due process of law.” Id. at 58. In contrast, the
Court recognized that a bad faith showing is not required when the
evidence is apparently exculpatory: “[t]he Due Process Clause of
the Fourteenth Amendment, as interpreted in Brady, makes the good
or bad faith of the State irrelevant when the State fails to
disclose to the defendant material exculpatory evidence.”
Id. at
57. The defendant did not establish a due process violation under
the facts of Youngblood because the evidence was only “potentially
useful” and the actions of the police could “at worst be described
as negligent.”
Id. at 58.
The issue again arose in Illinois v. Fisher, 540 U.S.
544, 549 (2004), where the Court reviewed Youngblood and Trombetta.
In Fisher, the defendant, who was charged with possession of
cocaine, filed a discovery motion requesting all physical evidence,
including the cocaine, that the state intended to use at trial.
Id. at 545. Before the cocaine was provided to the defendant, the
defendant “jumped bond” becoming a fugitive.
Id. When he was
captured ten years later, the state reinstated the possession
charges but had, in good faith, already destroyed the cocaine.
Id.
at 546. The Court reiterated that “the applicability of the bad-
faith requirement in Youngblood depended ... on the distinction
between ‘materially exculpatory’ evidence and ‘potentially useful’
evidence.”
Id. at 549. Bad faith was not necessary if the
evidence was “materially exculpatory.” Such a showing was only
necessary if the evidence was “potentially useful.” The Court
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concluded that the cocaine was only “potentially useful evidence”
and that there was no due process violation under
Youngblood because the defendant did not allege that the police
acted in bad faith. Id. at 547-48.
A variety of other circuits have considered the
relationship between Trombetta and Youngblood and have concluded
that (1) the destruction of “apparently exculpatory” evidence does
not require a showing of bad faith but that (2) if the evidence is
only “potentially useful,” a bad-faith showing is required.7 Each
of this court's past decisions in this area has involved
potentially useful evidence, rather than apparently exculpatory
evidence,8 and in these cases, the court has held that a showing of
7
See United States v. Moore, 452 F.3d 382, 388 (5th
Cir. 2006)(“impermissibly withheld evidence must be either (1)
material and exculpatory or (2) only potentially useful, in
combination with a showing of bad faith on the part of the
government”); United States v. Estrada,
453 F.3d 1208, 1212-13 (9th
Cir. 2006) (only requiring a showing of bad faith when the evidence
is “potentially exculpatory, as opposed to apparently
exculpatory”); Bullock v. Carver
297 F.3d 1036, 1056 (10th Cir.
2002) (“A defendant can obtain relief under the Due Process Clause
when he can show that a police department destroyed evidence with
‘an exculpatory value that was apparent before [it] was destroyed.’
... Where, however, the police only failed to preserve ‘potentially
useful’ evidence that might have been exculpatory, a defendant must
prove that the police acted in bad faith by destroying the
evidence.”) (internal citations omitted); United States v. Wright,
260 F.3d 568, 571 (6th Cir. 2001) (“The destruction of material
exculpatory evidence violates due process regardless of whether the
government acted in bad faith.”).
8
See United States v. Garza,435 F.3d 73, 75 (1st Cir.
2006)(noting that drugs and tape recordings of drug transactions
are only “potentially exculpatory”); DiBenedetto v. Hall, 272 F.3d
1, 13 (1st Cir. 2001) (finding that blood stains on a sneaker were
not “clearly exculpatory”);
Femia, 9 F.3d at 995 (finding that the
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bad faith is required.9 In contrast, this case involves apparently
exculpatory evidence, rather than merely potentially useful
evidence. We need not decide whether, as the Supreme Court has
suggested and other circuits have held, a showing of bad faith is
unnecessary in these circumstances, although we note that the state
agrees that such a showing is not required because Strong’s first
statement was apparently exculpatory. Nor need we decide whether
bad faith was demonstrated on the facts of this case, as the
district court assumed. We proceed instead to the question of
whether the destroyed evidence satisfies Trombetta’s requirement
that it be “to some extent irreplaceable.” Femia, 9 F.3d at 994.
The requirement that the evidence be irreplaceable was
directly addressed by the Supreme Court in Trombetta in connection
with the second prong of the materiality requirement. The Supreme
Court considered whether the defendants “were without alternate
means of demonstrating their innocence.” Trombetta, 467 U.S. at
490. In that case, the Court concluded that sufficient
parts of audio tapes capturing conversations between the defendant
and other alleged co-conspirators “can only be characterized as
potentially exculpatory evidence”).
9
See Garza, 435 F.3d at 75 (“where lost or destroyed
evidence is deemed to be only potentially exculpatory, as opposed
to apparently exculpatory, the defendant must show that the
evidence was destroyed in bad faith”);
Femia, 9 F.3d at 994 (“we
find no due process violation with respect to evidence that no
longer exists because it was not destroyed in bad faith”); cf.
DiBenedetto, 272 F.3d at 12 (“We need not decide whether this meets
the ‘bad faith’ standard, because a closer look at the Supreme
Court decision in Trombetta indicates that DiBenedetto’s due
process claims falls short in other regards.”).
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alternatives existed, including (1) inspecting the breathalyzer
machine, (2) raising an argument that radio waves or the diet of
the defendant influenced the results, or (3) cross-examining the
officer who administered the test. Id. The irreplaceability
requirement was also recognized by this court in DiBenedetto, which
held that the loss of a blood spot on a sneaker was not
irreplaceable. 272 F.3d at 13. In DiBenedetto, we compared the
blood spot to the breath samples in Trombetta: “in this case, the
evidence to be presented was not the spot itself, but rather the
test results, which the defendant was free to impeach by
questioning the expert about the test methodology, the inconsistent
results, and, most importantly, about the test’s inability to
conclude the spot was even human blood.”
Id.
The defendant argues that Trombetta’s irreplaceability
requirement has been eliminated by Youngblood. We disagree. There
is nothing in Youngblood to suggest elimination of the
irreplaceability requirement. Also, while neither the Supreme
Court nor this court has directly addressed the irreplaceability
requirement in the context of apparently exculpatory evidence (as
opposed to potentially exculpatory evidence), we conclude that
proof of irreplaceability is required in both apparent and
potential exculpatory evidence cases. In all cases under Brady,
the defendant must demonstrate that the evidence was material to
establish a constitutional violation whether the prosecution acted
in good fath or bad faith. See Brady v. Maryland,
373 U.S. 83, 87
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(1963); Kyles v. Whitley, 514 U.S. 419, 434-35 (1995); United
States v. Hansen,
434 F.3d 92, 102 (1st Cir. 2006).
Irreplaceability is part of the materiality requirement in
destroyed evidence cases, and it follows that the defendant in such
a case bears the burden of showing that the evidence was
irreplaceable. See
Trombetta, 467 U.S. at 489;
Femia, 9 F.3d at
993. Olszewski has not met that burden.
The question of whether evidence is “to some extent
irreplaceable” is a legal question based on underlying facts. See
Trombetta, 467 U.S. at 489. Here, the underlying facts are not in
dispute, so we must determine whether, in light of those undisputed
facts, the irreplaceability requirement has been satisfied. We
conclude that the destroyed evidence was not irreplaceable. There
has been no showing that Olszewski was unable to recreate the
substance of Strong’s original statement through testimony.10
Strong’s first statement was short, roughly one paragraph (and less
than one page). There were no internal conflicts in Strong’s
testimony about the content of the statement, and Strong’s
testimony about the statement did not conflict with Sypek’s
testimony about the statement.
10
This case is unlike United States v. Cooper, 983
F.2d 928 (9th Cir. 1993), where the police destroyed laboratory
equipment allegedly used to manufacture methamphetamine. The Ninth
Circuit held that “[general] testimony about the possible nature of
the destroyed equipment would be an inadequate substitute.”
Id. at
932. In that case, no witness was directly familiar with the
destroyed evidence and there was no other record of the evidence,
e.g. photographs or laboratory tests.
-20-
Perhaps most importantly, Olszewski did not show that
there was material information in the first statement that Strong
and Sypek could not recall. Even though Strong appears to have
memory lapses as to surrounding events and could not remember the
statement “word for word,” he testified that he “mostly” remembered
what was in his first statement. Likewise, although Officer Sypek
agreed on cross-examination that there might be “other things” in
the statement that he could not remember, he remembered “the
substance of the statement.” Thus, at best the testimony
established that the witnesses could not recall details in the
first statement unrelated to its substance.
In short, although the loss of exculpatory information as
a result of the destruction of Strong’s first statement could
result in a due process violation,11 Olszewski has failed to show
that the statement contained additional, material information that
was lost as a result of the destruction. Mere speculation about
the possible existence of additional, material evidence in the
destroyed statement is simply insufficient to demonstrate a due
process violation.
11
At oral argument, we asked the assistant attorney
general to “assume that Strong recalled that he had listed the
identity of another witness in the statement who was with them
during the supposed alibi period and he could not remember the name
of the person and the police could not remember the name. Would we
have a due process violation under those circumstances, assuming
bad faith?” In response, the assistant attorney general conceded
that “if there were such a piece of evidence in that statement that
nobody could recall but everyone knew there was a name in there,
you would have a due process violation.”
-21-
Olszewski also argues that his statement was
irreplaceable because cross-examining Strong and the police about
the statement was not sufficient because it “forced Olszewski to
try to prove his case through impeachment of a damaging, hostile
witness.” Trombetta itself involved the need to recreate the
evidence through hostile witnesses, but there is no suggestion that
this is insufficient.
Because Olszewski has not shown that he was “unable to
obtain comparable evidence by other reasonably available means,” we
conclude that the destruction of Strong’s statement was not a
violation of due process under the Supreme Court’s decisions in
Trombetta, Youngblood, and Fisher.
IV.
Olszewski next argues that the prosecution made a number
of prejudicial statements in closing argument that violated
Olszewski’s due process rights. For this kind of due process
challenge to succeed, “it is not enough that prosecutors’ remarks
were undesirable or even universally condemned . . . .” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks
omitted). Rather, as the Supreme Court has made clear, “[t]he
relevant question is whether the prosecutor’s comments ‘so infected
the trial with unfairness as to make the resulting conviction a
denial of due process.’”
Id. (quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)). In assessing whether the prosecutor’s
“improper statements during closing argument require[s] a new
-22-
trial, we examine (1) whether the prosecutor's conduct was isolated
and/or deliberate; (2) whether the trial court gave a strong and
explicit cautionary instruction; and (3) whether it is likely that
any prejudice surviving the judge's instruction could have affected
the outcome of the case.” United States v. Lowe, 145 F.3d 45, 50
(1st Cir. 1998)
Two of the prosecutor’s statements involved
misdescriptions of the evidence, and the court gave a curative jury
instruction urging the jury to disregard the statements.12 This
12
Olszewski argues that the prosecutor improperly
stated that Olszewski demonstrated a lack of remorse because
Olszewski did not have contact with the Welch family “[e]ven after
[Joanne’s] body was found.” Defense counsel objected, explaining
that Olszewski attended Welch’s wake, and the judge immediately
instructed the jury:
there was a mention made with regard to any
contact between the defendant and the Welch
family. If that should possibly be
interpreted as a suggestion that the defendant
did not attend the wake of the deceased, that
should be ignored completely. There was no
evidence one way or the other on that point,
but no inference should be drawn that that was
true if any suggestion to that effect was
made.
Olszewski also contends that he was prejudiced by the
prosecution’s closing-argument reference to a witness’s opinion
that Olszewski was guilty. Defense counsel objected, arguing that
the statement had previously been excluded. The trial judge
immediately instructed the jury: “[i]f there was . . . any
argument with regard to any of the witnesses expressing an opinion
as to the guilt or innocence of the defendant, I ask you to ignore
that also.” In the jury charge, the judge further instructed:
“There was in the course of the trial certain evidence which I
ordered stricken. . . . You must not consider any evidence which
has been stricken. Please do everything in your power to put that
completely out of your mind. Once it is stricken, it should play
-23-
court has consistently held that where the prosecutor
unintentionally misstates the evidence during closing argument, a
jury instruction ordinarily is “sufficient to cure any potential
prejudice,”13 particularly where, as here, the instruction was given
immediately after the statement. There is no suggestion here that
the prosecutor deliberately misstated the evidence. We find that
these instructions were sufficient to cure any error by the
prosecutor.
Olszewski also complains that the prosecutor personally
vouched for Olszewski’s guilt. The prosecutor stated: “ladies and
gentlemen, there is no fear in my voice when I say to you that
either Phil Strong killed this girl or the defendant killed her.
Absolutely none.” He then suggested that because Strong had no
motive or opportunity, the killer had to be Olszewski. Defense
counsel objected, and the trial judge gave an immediate limiting
instruction: “It is important to remember that anything that
counsel says in closing argument is not evidence. I think I made
that point before and I want to re-emphasize it.” The judge also
gave an instruction in the jury charge itself: “[Y]ou must make
no part in your deliberations.”
13
United States v. Bey, 188 F.3d 1, 9 (1st Cir. 1999);
see also United States v. Ortiz,
447 F.3d 28, 35-36 (1st Cir.
2006) (holding that where the prosecutor inadvertently misstated
the evidence any prejudice was cured by the trial judge’s jury
instruction);
Lowe, 145 F.3d at 50 (“The court [through a curative
instruction] properly accounted for any possible prejudice from the
government’s remark.”).
-24-
your determination of the facts on the basis of the evidence which
has been presented in the course of the trial. . . . The evidence
does not include anything that either counsel may have said at any
time in the course of the trial.”
This court has stated that “the representative of the
government approaches the jury with . . . tremendous credibility
but that personal credibility is one weapon he must not use.”
United States v. Gonzalez Vargas, 558 F.2d 631, 633 (1st Cir.
1977). This case is distinguishable from cases such as Gonzalez
Vargas where the prosecutor’s argument was held to deny due
process.
Id. In Gonzalez Vargas, the prosecutor told the jury
what he “personally believe[d]” on four separate occasions, and the
court failed to give any curative jury instruction.
Id. at 632-33.
Here, while the prosecutor may have erred in stating his personal
opinion to the jury, the statement was brief and the trial court’s
instructions to the jury sufficiently corrected for any potential
prejudice.14
In two other instances there was no curative instruction.
Olszewski contends that the prosecutor improperly questioned the
credibility of two witnesses, Lori Garvey and Michelle Herrieux-
Bernier, who gave statements that they saw Joanne Welch between 7
14
The Supreme Judicial Court noted, “[A] single
unfortunate and unartful isolated instance of the use of the first-
person pronoun ... in the course of a legitimate argument as to the
inferences the jury should draw from the evidence does not
constitute error.” Commonwealth v. Olszewski, 416 Mass. at 726,
625 N.E.2d at 541-42 (internal citations omitted).
-25-
and 9 P.M. on January 28, 1982, by arguing that “it didn’t happen
[until] eight years later that this information [came] forward.”
In fact, at least one of these witnesses testified at Olszewski’s
first trial. There was no curative instruction because Olszewski
did not object to this statement at trial. We are not persuaded
that this fleeting comment “so infected the trial with unfairness
as to make the resulting conviction a denial of due process.”
Darden, 477 U.S. at 181.
In the other instance, Olszewski argues that the
prosecutor improperly urged the jury to infer, from the fact that
Olszewski’s father did not testify at the trial, that the father’s
testimony would have been adverse to Olszewski. There was no
curative instruction. Indeed, the trial court approved the
argument in advance and instructed the jurors that they could infer
that the witness “would have given testimony unfavorable to”
Olszewski if the jurors found that the witness was available, was
“friendly to or at least not hostilely disposed toward” the
defendant, and could “be expected to give testimony of distinct
importance to the case.”
The surrounding facts are as follows: At Olszewski’s
first trial, his father testified that, around 6:30 P.M. on January
28, 1982, he picked his son up on Hillcrest Avenue in West
Springfield and brought him home. Olszewski’s father did not
testify at the second trial. According to Strong’s testimony at
the second trial, Olszewski informed Strong that Olszewski’s father
-26-
had picked him up in Westfield (where the body was found) after the
murder (later than 6:30 P.M.). In closing, the prosecutor argued:
“ladies and gentlemen, his father has been here for two weeks
sitting here watching this case. You can infer by the fact that he
didn’t get up and tell you that he didn’t pick up his son, you can
infer from that . . . that he did pick up his son in Westfield,” in
accordance with Strong’s version of events.
A jury may draw an adverse inference from a witness’s
failure to testify if “the evidence shows that the witness is
available to testify on behalf of the party, that the testimony of
the witness would be relevant and noncumulative, and that the
witness is not prejudiced against the nonproducing party.” United
States v. Ariza-Ibarra, 651 F.2d 2, 16 (1st Cir. 1981). We find
that this standard is met here where Olszewski’s father was present
at the trial, his testimony was relevant, and he was not apparently
prejudiced against Olszewski. However, the defendant argues that
the statement was constitutionally improper because the prosecution
misrepresented the likely testimony of the witness.
We agree that under the decisions of the Supreme Court a
due process violation may occur when the prosecution
mischaracterizes the earlier sworn testimony of a witness. Miller
v. Pate, 386 U.S. 1, 7 (1967). That is not what happened here.
The prosecutor in closing did not misstate the father’s testimony
at the first trial. The prosecutor was not required to assume
that, if the father were to testify again, his testimony would be
-27-
favorable to Olszewski given the possibility that Olszewski’s
father could change his testimony were he to testify a second time.
Under these circumstances, we fail to see how the prosecutor’s
“missing witness” argument violated Olszewski’s due process rights.
Finally, we conclude that any prejudice caused by the
prosecutor’s closing argument was far outweighed by the strength of
the government’s evidence against Olszewski. See United States v.
Udechukwu, 11 F.3d 1101, 1106 (1st Cir. 1993) (considering “the
strength of the evidence against the defendant”). Strong’s
testimony recounted Olszewski’s confession in detail, contained
facts that would only have been known to someone involved in the
murder, and was consistent with Welch’s extensive injuries. The
prosecution also presented evidence that Olszewski had a motive to
kill Welch, that he threatened to kill Welch, and that Welch
intended to meet with Olszewski on the night of the murder.
Accordingly, we conclude that the prosecutor’s statements
in closing argument, whether considered individually or
cumulatively, did not constitute a due process violation.
V.
Olszewski argues that he suffered ineffective assistance
of counsel when his trial counsel failed to explain to the court
that she did not call Olszewski’s father as a witness because of
her concern that the father’s hostility toward the prosecution
might damage the jury’s perception of Olszewski. If the court had
received this information, Olszewski contends, it would have
-28-
prohibited the prosecution from arguing in closing that Olszewski’s
failure to call his father was grounds to infer that the father’s
testimony would have been adverse to Olszewski. The district court
concluded that Olszewski’s ineffective assistance claim was
defaulted in the course of the state court proceedings and thus was
not available for relief on habeas. We agree.
We are precluded from reviewing state court decisions on
habeas review if the decision rests on “independent and adequate
state ground[s].” Simpson v. Matesanz, 175 F.3d 200, 205-06 (1st
Cir. 1999) (citing Trest v. Cain,
522 U.S. 87,
118 S. Ct. 478, 480
(1997)). “[I]ndependent and adequate state grounds exist where
‘the state court declined to hear [the federal claims] because the
[defendant] failed to meet a state procedural requirement.’”
Id.
(quoting Brewer v. Marshall,
119 F.3d 993, 999 (1st Cir. 1997)).
Under Massachusetts law, after a defendant’s direct appeal is
completed, the Supreme Judicial Court cannot review appeals from
the denial of collateral attacks on a defendant’s conviction unless
a single justice finds the claims to be “new and substantial.”
Id.
(citing Mass. Gen. Laws ch. 278, § 33E). This court has held that
“[w]here there has been procedural waiver below, the denial of
review under § 33E [because the claim is not new and substantial]
is an independent and adequate state ground that bars federal
habeas review.”
Id.
The default here concerns the new trial proceedings in
-29-
the Massachusetts state court, proceedings that were somewhat
complex. After Olszewski’s second trial, but before his direct
appeal, Olszewski’s trial counsel filed a motion for a new trial,
which the trial judge denied on the merits. This motion did not
raise an ineffective assistance of counsel claim. Olszewski’s
conviction was affirmed on direct appeal. The direct appeal also
did not raise an ineffectiveness claim.
After his direct appeal, Olszewski filed a pro se motion
for a new trial, arguing that (1) his trial counsel was ineffective
for not calling Olszewski’s father as a witness (we refer to this
ineffectiveness claim as “the failure to call claim”) and (2)
appellate counsel was ineffective for failing to raise the failure
to call claim on direct appeal. The trial judge denied the pro se
motion. Olszewski then filed a motion for appointment of counsel,
which a single Supreme Judicial Court justice granted. After
counsel was appointed, but still acting pro se, Olszewski filed a
motion to amend his motion for a new trial. His pro se motion to
amend again raised the failure to call claim. Three months later,
Olszewski, now through counsel, filed a second motion to amend,
arguing for the first time that his trial counsel was ineffective
for failing to inform the court of the reason for not calling
Olszewski’s father to testify. We refer to this ineffectiveness
claim as the "communication claim." The trial court rejected both
ineffectiveness claims. The trial judge held that the failure to
-30-
call claim was “already raised in the ... new trial motion [filed
pro se after the direct appeal], which was argued, considered and
denied.” The trial judge rejected the communication claim because
it should have been raised in the second new trial motion and was
not new.
On a petition for leave to appeal, the issues were
addressed by a single justice of the Supreme Judicial Court who
ruled that the claims were “not new.” We understand the single
justice's ruling that the claims were “not new" to rest on two
separate grounds: first, as to the failure to call claim, the
single justice concluded that the “missing witness” argument had
been fully considered on the direct appeal; that counsel's
ineffectiveness in failing to call the father as a witness could
have been raised on direct appeal; and that there was no showing
that appellate counsel had been ineffective in presenting the
appeal. In this connection, the single justice stated:
given (1) the full bench’s thorough evaluation
of the “missing witness” issue and its ruling,
after plenary review, to affirm the
conviction; and (2) the absence of any proof
that counsel was constitutionally ineffective
in presenting the appeal, I find the
defendant’s claim is not new.
Second, with respect to the communication claim, the
single justice concluded that counsel in the second new trial
motion had presented a closely related ineffectiveness argument
(the failure to call claim), and that the communication claim was
-31-
not new because it could have been raised in the earlier new trial
motion. The single justice stated, “The strategic decision to
press one approach in a motion for a new trial rather than another
does not make the claim new.”
We think that the single justice's ground for finding the
communication claim not new - that is, the failure to raise it in
the new trial motion after the direct appeal - constitutes an
independent and adequate state ground for the refusal to consider
the communication claim, and is completely unrelated to the merits.
The defendant's argument to the contrary rests on reading the
single justice's first ground for denying relief as related to the
communications claim. While the single justice's opinion is hardly
a model of clarity, we do not read that opinion as disagreeing with
the trial judge's reasons for rejecting the claim - which clearly
were grounded in the failure to raise the communication claim in
the new trial motion filed after the direct appeal. Rather, we
read the single justice's opinion as agreeing with that decision.
Moreover, we do not see how the single justice could have intended
to tax counsel for failure to raise the ineffectiveness issue
(concerning the failure to communicate with the trial judge) on
direct appeal since the record on direct appeal would not have
supported such an argument. Accordingly, we hold that the district
court was correct to deny habeas review of the communication
-32-
claim.15
VI.
Finally, Olszewski argues that his Sixth Amendment rights
were violated when the trial judge excused a sitting juror on the
basis of ex parte communications. We reject this contention as
well.
The jury for Olszewski’s second trial was impaneled in
Pittsfield (Berkshire County), to be sequestered in Springfield
(Hampden County). During jury selection, a prospective juror asked
to be excused on the ground that sequestration would cause personal
hardship because his wife was ill and needed at-home care. The
judge rejected the excuse and the juror was impaneled along with
fifteen others. When the prospective juror returned home that
evening, his wife became distraught that she would be left alone.
That night, the juror’s son telephoned the judge and stated that
his mother could not be left alone. After contacting the juror’s
wife’s physician for confirmation of her condition, the judge
excused the juror from further service on grounds of hardship. The
judge informed counsel for both parties of these events in court
the next day. The excused juror was replaced by an alternate.
15
Even when a petitioner’s claims are procedurally
barred, this court may review the claims if “the prisoner can
demonstrate cause for the default and actual prejudice” or “that
failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991). Olszewski does not argue that either of these exceptions
applies here.
-33-
The defendant here does not assert that the trial judge
erred in excusing the juror, and it is well established that “[t]he
decision to substitute an alternate juror is committed to the sound
discretion of the trial court” and will not be overturned “absent
a showing of bias or prejudice to the defendant.”16 United States
v. Corsino, 812 F.2d 26, 33 (1st Cir. 1987) (internal citations
omitted). Rather, the defendant contends that he had a Sixth
Amendment right to be present when the trial judge communicated
with the juror’s son and doctor, and when the juror was excused.
“[T]he right to personal presence at all critical stages
of the trial ... [is a] fundamental right[ ] of each criminal
defendant.” Rushen v. Spain, 464 U.S. 114, 117 (1983). This right
must be balanced against “the necessity for preserving society’s
interest in the administration of criminal justice.”
Id. at 118.
We see no basis for Olszewski’s claim that the judge’s action in
excusing the juror violated his Sixth Amendment rights. Nor do we
think that the judge’s ex parte communications amounted to
prejudicial error. Unrecorded ex parte communications between a
trial judge and a juror are subject to harmless error review.
Id.
at 119-20. Error is harmless where “the jury’s deliberations, as
a whole, [are] not biased by the undisclosed communication.”
Id.
16
In fact, the Supreme Judicial Court found that it is
“obvious that the defendant would not have opposed excusing the
juror” where defense counsel “did not move for a mistrial, or
request empanelment of an additional juror or any other remedial
measure.”
Olszewski, 416 Mass. at 722, 625 N.E.2d at 539.
-34-
at 121. Olszewski has not alleged that the jury was biased by the
ex parte communications.
This case is like United States v. Evans, 352 F.3d 65 (2d
Cir. 2003), where a juror suffered an asthma attack during trial.
That evening, the trial judge telephoned the juror ex parte and was
told that the attack was “more serious than usual” and that the
juror’s doctor instructed him to stay at home.
Id. at 68. While
on the telephone, the judge excused the juror.
Id. The Second
Circuit found that any error was harmless because the juror was
excused “well before” the case was sent to the jury, the remaining
jurors were “not adversely influenced,” and the dismissal did not
“produce a drastic shift in the jury’s composition.”
Id. at 70.
The lack of prejudice in this case is particularly clear
where there is no suggestion that the juror discussed the case with
other jurors; he was dismissed before the trial began; and counsel
was informed of the communications the next morning at which time
there was no suggestion of actual or potential prejudice or any
request for curative action by the trial court. Indeed, that the
judge dismissed the juror before court reconvened in the morning
helped to ensure that the remaining jurors would not be prejudiced
by the dismissed juror’s dissatisfaction. Accordingly, we conclude
that the district court correctly denied habeas relief as to this
claim.
-35-
VII.
The decision of the district court is
Affirmed.
-36-
