Filed: Jan. 24, 2012
Latest Update: Feb. 22, 2020
Summary: After further, hearings and evaluations, he was held incompetent to stand trial in, April 1998 and re-committed to Bridgewater.Sufficiency of the evidence.U.S. at 318-19.-9-, this court on habeas review upheld a Jackson challenge. Commonwealth v. Vives, 854 N.E.2d 1241, 1243-45 (Mass., 2006).
United States Court of Appeals
For the First Circuit
No. 11-1037
ERIC BROWN,
Petitioner, Appellant,
v.
STEVEN J. O'BRIEN,
Superintendent of Old Colony Correctional Center,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Selya and Howard,
Circuit Judges.
Catherine J. Hinton with whom Rankin & Sultan was on brief for
appellant.
Jessica V. Barnett, Assistant Attorney General, Criminal
Bureau, Appeals Division, with whom Martha Coakley, Attorney
General, was on brief for appellee.
January 24, 2012
BOUDIN, Circuit Judge. Eric Brown, now in state prison
serving two life terms for first degree murder, was denied habeas
corpus relief in the federal district court, Brown v. O'Brien, 755
F. Supp. 2d 335 (D. Mass. 2010), and now appeals. The factual
background, recounted in detail in the state court decision
upholding his convictions, Commonwealth v. Brown,
872 N.E.2d 711
(Mass. 2007), is readily summarized.
In the early morning of June 16, 1996, two men were shot
at close range with a shotgun in Boston's South End and both were
killed. The day before the murders, Brown had accompanied his
friend Dwight Bobbitt, a security guard who had the credentials to
obtain firearms, to a Boston sporting goods store. After Brown
supplied Bobbitt with money, Bobbitt purchased a shotgun selected
by Brown, together with shells, and turned both the weapon and the
ammunition over to Brown. Brown, 872 N.E.2d at 716-17. Bobbitt
thereafter reported the shotgun as stolen, but later admitted he
had purchased it for Brown.
Id. at 716 n.15.
Then, sometime after midnight on June 16, 1996, Brown in
the company of several friends (including Bobbitt) fired the
shotgun into the air several times outside of his house in Roxbury.
Brown was back inside the house when police arrived to investigate,
and after they left he returned outside wearing a thigh-length
green jacket and black boots. Brown again fired into the air
-2-
several times and then left on foot toward Boston's South End
carrying the shotgun with him. Brown, 872 N.E.2d at 716-17.
Witnesses in the South End testified that in the early
morning hours on Appleton Street, a number of people were outside
socializing and walking about. At about 3:30 in the morning, a man
approached one of these people, Athos Oliveira, and shot him twice
with a shotgun, the second shot hitting Oliveira in the face and
killing him. The assailant continued down the street, encountered
one Thomas Meyer, killed him with a shot to the back of the head,
and left the scene. Brown, 872 N.E.2d at 717.
Five witnesses who either heard or saw one or the other
of the two crimes--and who eventually testified at Brown's trial--
could not identify Brown as the man who killed Oliveira and Meyer.
But most of the witnesses identified the assailant as a black male
and one identified the assailant as having "short African-American
hair"; another said he was wearing a green, three-quarter length
jacket; two said that he was about 5'8'' or so (Brown was in fact
5'7''); and one said he was 160 pounds (Brown was 150 pounds).
Although one said the jacket was waist-length, three agreed it was
thigh-length.
Ten days after the crimes, on June 26, 1996, a policeman
stopped Brown for erratic driving in a community not very far from
Boston and eventually discovered a shotgun and a spent shell on the
floor of the van he was driving. Brown, 872 N.E.2d at 718. Shell
-3-
casings recovered at the scenes where Oliveira and Meyer died were
matched to the shotgun recovered from Brown's van; Bobbitt
confirmed that this was the weapon he had bought and also that a
green jacket that police found in Brown's apartment matched the
color of the one Brown had worn on the night of the shootings.
Brown was indicted in August 1996 but was not put on
trial until March 2001. In the interim, Brown was committed to
Massachusetts' Bridgewater State Hospital ("Bridgewater") for an
extended period to determine his competence to stand trial.
Successive conflicting determinations as to competency followed
along with re-commitments for more observation.1 Finally, after
hearings in January and March 2001, he was twice determined to be
competent to stand trial by the state judge, although defense
experts and a court clinician disagreed. A trial commenced in late
March 2001 and lasted for four weeks.
At trial, the principal defense witness (Dr. Rosmarin),
a forensic psychiatrist from Massachusetts General Hospital,
testified that Brown was a paranoid schizophrenic who exhibited
prominent symptoms of the disease and suffered from delusions of
persecution, a horror of homosexuality, and voices telling him to
1
Brown was initially found competent to stand trial in
February 1997 but was then re-committed to Bridgewater at its
request for further observation and treatment. After further
hearings and evaluations, he was held incompetent to stand trial in
April 1998 and re-committed to Bridgewater. Brown was then held
competent in December 1998 but then re-committed for further
observation.
-4-
kill those he believed to be "sexual immoralizers." He also gave
his opinion that at the time of the deaths, Brown was not sane and
lacked criminal responsibility under the standard used in
Massachusetts.2
Two treating psychiatrists and a treating psychologist
from Bridgewater agreed that Brown was a paranoid schizophrenic
suffering from delusions, and described the symptoms they had
observed during his time at Bridgewater. Supporting evidence from
friends and family members confirmed Brown's mental and emotional
deterioration in 1995 and 1996. But several witnesses for the
prosecution testified on rebuttal that Brown seemed normal to them
both before and after the killings and the prosecution's expert
testified, albeit rather summarily and after limited exposure to
him, that Brown was not psychotic on the day of the shootings.
The jury convicted Brown in 2001 of two separate counts
of first degree murder, as well as other less serious firearms-
related offenses, and on each murder count he received a life
sentence. The Supreme Judicial Court of Massachusetts ("SJC")
2
Commonwealth v. DiPadova, 951 N.E.2d 891, 897 (Mass. 2011)
("Under the McHoul test, a defendant is not criminally responsible
for his actions—and, therefore entitled to a verdict of not
guilty—if, at the relevant time and due to a mental illness (mental
disease or defect), he lacks the substantial capacity to appreciate
the wrongfulness of an action or to act in conformity with the
law." (citing Commonwealth v. McHoul, 226 N.E.2d 556 (Mass.
1967))).
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affirmed the conviction. Brown, 872 N.E.2d 711. Brown then filed
a habeas petition in the federal district court, 28 U.S.C. § 2254
(2006). The magistrate judge recommended that the habeas petition
be dismissed on the merits, and the district judge agreed, but also
granted a certificate of appealability as to four different issues,
which are now before us.
Brown, 755 F. Supp. 2d at 337.
A federal court may grant a writ of habeas corpus when a
state court adjudication resulted in a decision "that was contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States" or "resulted in a decision that was based on an
unreasonable determination of the facts." 28 U.S.C. § 2254(d)(1)-
(2).3 There are additional provisions relating to factual issues,
id. § 2254(e)(1), but any ambiguity resulting from the interaction
of the factual provisions, see Wood v. Allen,
130 S. Ct. 841, 848-
49 (2010) (noting circuit split), does not impact the outcome here.
Sufficiency of the evidence. Brown's first argument is
that under Jackson v. Virginia, 443 U.S. 307 (1979), no reasonable
jury could find that he is the person who committed the murders.
3
Under the "law" prong, a state court's decision is "contrary
to" federal law either if it "arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or if the
state court decides a case differently than [the Supreme] Court has
on a set of materially indistinguishable facts." Williams v.
Taylor, 529 U.S. 362, 413 (2000). Review under the "fact" prong is
limited to "the record that was before [the] state court." Cullen
v. Pinholster,
131 S. Ct. 1388, 1400 (2011).
-6-
The SJC rejected this claim on the merits, Brown, 872 N.E.2d at
723-24, so our review is deferential. But, in this instance,
deference to the state court is beside the point: if an identical
insufficiency of evidence claim were made on direct appeal after a
federal trial, the evidence would be entirely sufficient to support
a jury verdict finding that Brown shot the two victims.
Brown says the prosecution established, at most,
"circumstantial evidence" connecting Brown and the gun used in the
shootings. The prosecution's case was "circumstantial" in the
limited sense that no one at the scene testified in court to
recognizing Brown as the shooter; but there was direct eyewitness
evidence (1) that the man was similar to Brown in race, height,
weight, hair style and green jacket; (2) that Brown left for the
South End with his shotgun an hour or two before the murders; (3)
that he possessed that shotgun less than two weeks later; and (4)
that the shell casings at the scene matched his weapon.
True, the credibility of Bobbitt (who testified to the
purchase of the gun and the incident in front of Brown's house
before the murders) was open to attack, although his version of the
gun purchase was not effectively challenged. The eyewitness
testimony as to identity of the shooter was in some respects vague;
and certainly the jury could have doubted Brown's sanity. But this
last issue is not before us and Brown's plainly disturbed
personality, if the disturbance fell short of insanity, provided an
-7-
explanation for what otherwise might be viewed as a senseless, and
therefore improbable, crime.
Brown's counsel at trial conceded to the jury in closing
that Brown had done the shootings, and sensibly concentrated on
persuading the jury that Brown was insane. In his presentation of
the case, defense counsel provided strong expert and lay testimony
that Brown was insane which would likely have persuaded many
juries--especially because the prosecution had a bare minimum of
expert evidence on its side and appeared to rely heavily on the
doubtful inference that Brown cannot have been insane because he
was fairly organized and systematic.
However, under the Massachusetts standard (see note 2,
above), showing a severe mental illness is not conclusive; the jury
must also decide whether the illness prevented the defendant from
appreciating the wrongfulness of his actions or conforming his
conduct to the requirements of the law. Commonwealth v. DiPadova,
951 N.E.2d 891, 897 (Mass. 2011). The main defense expert said
Brown met this standard; the prosecution expert said that Brown was
not even psychotic on the day of the murders; and the SJC upheld
the jury verdict.
Brown, 872 N.E.2d at 731. The insanity issue
was not pressed in the habeas proceeding.
Instead, in this court, Brown presses his attack on the
sufficiency of the identification evidence along two lines. First,
counsel points out that under Massachusetts law, the evidence can
-8-
be found insufficient based solely on what is presented in the
prosecutor's opening case (if the defendant files a motion at the
close of the prosecution's case);4 and, on this premise, Brown's
counsel urges that Jackson should be applied so as to disregard any
evidence that came in only later through the defense case or
prosecution rebuttal--where a limited amount of evidence adverse to
Brown was admitted.
But this Massachusetts practice is not imposed by federal
constitutional law. See LaMere v. Slaughter, 458 F.3d 878, 882
(9th Cir. 2006); Hernandez v. Cowan,
200 F.3d 995, 998 (7th Cir.
2000). And Jackson does not say or even suggest that its test is
to be applied to the prosecution's case but asks instead whether
"after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt." 443
U.S. at 318-19. Accord McDaniel v. Brown,
130 S. Ct. 665, 672
(2010).
Second, Brown relies on O'Laughlin v. O'Brien, 568 F.3d
287 (1st Cir. 2009), cert. denied,
130 S. Ct. 1142 (2010), where
4
Mass. Crim. Pro. R. 25(a); see also Commonwealth v. Berry,
727 N.E.2d 517, 522 (Mass. 2000). By contrast, under federal
practice (and in the majority of states) a defendant can challenge
the government's opening case after it is presented but, if the
defendant then puts on his own case, any challenge to the
sufficiency of the evidence must be based on the full record
including anything presented in the defense case. See State v.
Perkins,
856 A.2d 917, 932 n.23 (Conn. 2004) (listing federal and
state practices).
-9-
this court on habeas review upheld a Jackson challenge. In that
case, the defendant was directly connected with a vicious assault
only by some small blood stains in the defendant's apartment linked
by DNA testing to him--not the victim--and his baseball bat--
presumptively the murder weapon--found in the woods, also with
blood stains which yielded no conclusive results after DNA testing.
Id. at 294.
In practice, Jackson challenges are rarely upheld on
habeas and O'Laughlin is a rare exception. The evidence showing
that Brown committed the crime, described above, was far stronger
than in O'Laughlin. The only truly close issue as to guilt was
Brown's sanity, and, as noted earlier, that issue was resolved
against Brown based on what can charitably be regarded as
conflicting expert evidence, and anyway that issue is not before
us.
Intoxication. Brown does raise a related state of mind
issue on this appeal. Specifically, Brown claims that the trial
court should have granted his request for a jury instruction on
intoxication. At trial, psychiatrists for both the defense and the
prosecution made mention of Brown's drinking on the night of the
crimes. But, although Brown submitted a written request for an
intoxication instruction, the trial judge's instructions to the
jury did not include one on intoxication. Brown, 872 N.E.2d at 728
& n.39.
-10-
Massachusetts defines first degree murder as requiring
premeditated malice, Mass. Gen. Laws ch. 265, § 1, and it endorses
a jury instruction allowing the jury to consider intoxication to
negate the required scienter; but such an instruction is required
only when there is evidence presented of intoxication so
debilitating it prevents the defendant from forming the requisite
intent. Commonwealth v. Morgan, 663 N.E.2d 247, 250-51 (Mass.
1996). On direct appeal, the SJC found there was no such evidence
in this case.
Brown, 872 N.E.2d at 727-28.
Brown's principal claim here is that the "no such
evidence" ruling was an "unreasonable determination of the facts."
28 U.S.C. § 2254(d)(2). Ordinarily, errors of state law are not
the basis for federal habeas relief, Estelle v. McGuire, 502 U.S.
62, 71-72 (1991); Pulley v. Harris,
465 U.S. 37, 41 (1984), but
Brown also argues that the failure to give the instruction where
the facts and law made it appropriate violated his due process
rights.5 In all events, no evidence of disabling intoxication was
presented in this case--or at least the state court could
permissibly so find.
5
See generally In re Winship, 397 U.S. 358, 364 (1970)("[T]he
Due Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime."); see also Gilmore v. Taylor, 508 U.S. 333,
343-44 (1993); Sandstrom v. Montana,
442 U.S. 510, 512-14, 521
(1979); Commonwealth v. Vives,
854 N.E.2d 1241, 1243-45 (Mass.
2006).
-11-
True, Brown points to testimony of the prosecution and
defense psychiatric experts--Dr. Rogers and Dr. Rosmarin--both of
whom adverted to statements Brown himself made during their
examinations that he had drunk vodka and beer on the night of the
murders; Dr. Rosmarin also mentioned some intake of marijuana; and
Dr. Rogers, negating insanity, referred to Brown's "drinking
excessively" (and homophobia) to explain the killings.
But Brown's statements to the doctors were admitted only
to disclose the basis for their expert opinions on sanity and not
for the truth of Brown's statements. Brown, 872 N.E.2d at 728.
The distinction was conveyed to Brown's jury and is not directly
challenged in this case. Commonwealth v. Sama,
582 N.E.2d 498, 502
(Mass. 1991), cited to us by Brown, did require an instruction but
there the expert gave his own opinion that the defendant might have
been hallucinating at the time of the crimes as a result of
substance abuse.
Thus, strictly speaking, practically no evidence of
Brown's drinking was properly before the jury.6 Even if the
statements were considered as substantive evidence, the SJC pointed
out that
6
The prosecutor seems to have ignored the distinction in his
closing by arguing that drinking and marijuana, rather than
insanity, might have explained Brown's actions; but no objection
was made by the defense; and the SJC held that "to the extent the
argument was improper, it did not create a substantial likelihood
of a miscarriage of justice." Brown, 872 N.E.2d at 728 n.41.
-12-
none of this evidence--or any other evidence
admitted at trial--demonstrated how much or
for how long Brown had been drinking on the
night of the shootings or what effect any
alcohol that he may have ingested had on him
or whether his ability to form the requisite
criminal intent was impaired.
Brown, 872 N.E.2d at 728 (internal citation omitted). Assuming a
federal issue exists, the state court's fact-based assessment
rejecting such an instruction was not "unreasonable," given the
lack of any specific testimony about a debilitating impact.
Wood,
130 S. Ct. at 849.
Competence. Brown's third argument on habeas is that he
was not competent to stand trial, or at least that the procedures
used to determine his competency were defective. Competence to
stand trial is a narrowly focused concept: a defendant may have all
kinds of mental afflictions, but he can avoid trial only if he
lacks "sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding-and . . . a rational
as well as factual understanding of the proceedings." Dusky v.
United States, 362 U.S. 402, 402 (1960).
As already explained, after his arrest Brown was for
several years confined to Bridgewater. The competency
determination now before us was initially made in January 2001 and
then reaffirmed after a hearing in March 2001 shortly before trial.
The finding was made despite affidavits from Brown's counsel
stating that Brown was "unable to consult with his attorneys with
-13-
a reasonable degree of rational understanding" and did not have a
rational understanding of the proceedings against him.
The defense expert, Dr. Price, based on examinations in
February and March 2001, agreed. She stated that Brown was
suffering from chronic paranoid schizophrenia, was delusional,
believed he was the Anti-Christ, and heard voices. She said that
Brown appeared to have deteriorated significantly since his last
evaluation, was inattentive, and would have serious difficulties
following the proceedings and preparing a defense. She also said
that Brown would likely substantially improve if he resumed
medication.7
The court's clinical psychologist evaluated Brown on
March 7, and also found him incompetent. He summarized his review
of Brown's past evaluations as follows:
[T]he prevailing clinical opinion is that
[Brown] indeed can be competent, particularly
when he is appropriately medicated. Under the
influence of anti-psychotic medication his
symptoms are significantly improved although
never completely absent. . . . [H]is
competency can fluctuate under a number of
different conditions.
7
Brown ceased taking medication in mid-February 2001 (before
Dr. Price's first evaluation) so that he could "concentrate more
easily on court proceedings"; another state judge ordered Brown be
forcibly medicated on March 14, the day after the first day of the
competency hearing. In Massachusetts, "a distinct adjudication of
incapacity to make treatment decisions (incompetence) must precede
any determination to override patients' rights to make their own
treatment decisions." Rogers v. Comm'r of the Dept. of Mental
Health, 458 N.E.2d 308, 314-315 (Mass. 1983).
-14-
The psychologist reported that while Brown could respond
well to short, concrete questions, he could not process questions
that were longer or complex. He concluded that Brown could
understand only simple concepts, did not have more than a
superficial understanding of key legal processes (for example, he
could name the two possible defenses as "Not guilty by Insanity"
and "Not-There" but could not explain how he might choose between
the two), and was not currently competent and would only worsen
without medication.
After receiving these reports, the judge ordered another
evaluation by the Commonwealth's expert, a forensic psychiatrist.
Dr. Annunziata met with Brown for two evaluations (both when Brown
was still un-medicated), and testified that Brown was competent to
stand trial. Dr. Annunziata said that while Brown did hear voices,
they were not overly distracting, and that during the evaluation,
Brown was able to concentrate and focus, had a good short-term
memory, and showed no "gross impairment in judgment."8
Despite further defense testimony by Dr. Price after
another brief interview with Brown, the trial judge ruled on March
23, 2001, that Brown was competent, expressly relying solely on Dr.
8
However, Dr. Annunziata admitted that he had not reviewed
Brown's medical records from his four-and-a-half years at
Bridgewater, and that he did not ask Brown "many complex
questions." He also testified that when Brown's attorney asked him
a moderately complex question--specifically, whether Brown
remembered three motions from a hearing the day before--Brown could
not recall any.
-15-
Annunziata's testimony, to which he gave "great weight and credit,"
and his own observations of the defendant's conduct during the
competency hearing. On direct appeal, the SJC upheld Brown's
competency, finding that determination within the province of the
trial judge who heard the witnesses and observed the defendant.
Brown, 872 N.E.2d at 722-23. The question for us is whether this
result is so clearly unreasonable that it should be set aside.
Habeas challenges to state competency findings fail with
remarkable regularity, 40 Geo. L.J. Ann. Rev. Crim. Proc. at 468
n.1432 (2011) (citing cases), partly because habeas review is
deferential and partly because the trial judge has seen the
witnesses and the defendant. E.g., United States v. Figueroa-
Gonzalez, 621 F.3d 44, 48 (1st Cir. 2010). The ability to
understand the proceedings and assist counsel is both a matter of
degree and one in which trial judges, as well as health
professionals, have pertinent expertise. See United States v.
Ahrendt,
560 F.3d 69, 75 (1st Cir. 2009), cert. denied,
129 S. Ct.
2815.
Here, Brown was surely impaired and, at the same time,
all experts agreed that he at least possessed some understanding of
the situation and some ability to reason about it and discuss
issues with counsel.9 No one knows just how to measure precisely
9
Mental illness, limited intelligence, emotional troubles and
even amnesia as to pertinent events afflict many defendants, and
they do not automatically prevent a defendant from being tried or
-16-
that "sufficient present ability" to consult and understand of
which the Supreme Court spoke in Dusky. And, of course, a
defendant who refuses medication can worsen his own condition until
forcibly medicated; Brown, as it happens, was required to resume
medication before his trial commenced. See note 7, above.
A raving lunatic may not be tried, however patently
guilty and however hopeless his defense. But Brown is in a gray
area, somewhat impaired; and although "prejudice" is not part of
the equation, it is hard to see what more Brown could have
contributed to the thorough "all fronts" defense he received.
Competence to stand trial, as defined by the Supreme Court, is
decidedly a functional concept. In the end, the state court
finding was contestable, but it was not "unreasonable" under the
deferential habeas standard.
Brown also brings a procedural claim relating to
competency, saying that due process obliged the trial judge, as the
defense requested, to review Brown's Bridgewater medical records
and a tape of the Rogers hearing relating to forced medication, see
note 7, above, before ruling on competency. But one of Brown's
experts testified at the hearing to the contents of his medical
records and the other two had worked with him at Bridgewater; one
pleading guilty. E.g., United States v. Rodríguez-León, 402 F.3d
17 (1st Cir. 2005) (limited intelligence); Wright v. Sec'y for the
Dep't of Corr.,
278 F.3d 1245 (11th Cir. 2002) (mental illness),
cert. denied,
538 U.S. 906 (2003); Wilson v. United States,
391
F.2d 460 (D.C. Cir. 1968) (amnesia).
-17-
of those had recommended that the Rogers hearing be held and
testified there. Brown has not pointed to any additional specific
information (material or otherwise) that would have been revealed.
In a further procedural challenge, Brown argues that
after the court clinical psychologist found him incompetent on
March 7, 2001, Massachusetts law mandated an additional extended
observation and evaluation at Bridgewater before determining
competency. Mass. Gen. Laws ch. 123, § 15(b). As the SJC pointed
out, section 15(b)'s language is permissive, not mandatory, and it
was reasonable to find that in light of the already-completed
evaluations and extensive medical record, no further observation
was "necessary." Brown, 872 N.E.2d at 760.
Voluntariness. Finally, Brown claims that the district
court violated due process by failing to hold a sua sponte hearing
on the voluntariness of various statements made by Brown--seemingly
statements he made between June 15 (the day before the killings)
and June 26, 1996 (the day he was apprehended outside of Boston).
These statements, which came into evidence through the testimony of
various prosecution witnesses, are not directly quoted in Brown's
brief, but are listed in a similar claim made in the SJC. Brown,
872 N.E.2d at 725 n.35 (listing statements).
These included Brown asking Bobbitt to purchase a shotgun
for him the day before the killings and indicating the one he
wanted, and a denial of involvement to Bobbitt the day after;
-18-
statements made on June 18 (two days after the murders) to an
acquaintance, Samuel Lewis, indicating Brown was talking and acting
normally; and statements to the police officers who apprehended
Brown after a traffic stop outside of Boston (including both
answers to routine booking questions and Brown's statements when
stopped for the traffic violation that he was returning from a
party after dropping two girls at home).
The judge allowed the statements in evidence over a
defense objection after ruling (outside of the presence of the
jury) they were made voluntarily, but ultimately instructed the
jury that it should determine whether the statements were voluntary
and must disregard any statement that was not voluntary. Brown
argues that the judge erred in not holding a separate sua sponte
voluntariness inquiry in light of the evidence of his mental
illness at the time the statements were made.
Massachusetts law so requires under certain conditions,
Commonwealth v. Sheriff, 680 N.E.2d 75, 79-80 (Mass. 1997), but the
SJC held none was required here (and the trial court ultimately
instructed the jury to determine the voluntariness of the
statements),
Brown, 872 N.E.2d at 726-27. As we explained earlier,
state law errors are not independent bases for habeas review.
Given the context of the statements, it is far from clear that a
federal constitutional issue could be made out. See, e.g.,
Colorado v. Connelly,
479 U.S. 157 (1986).
-19-
In any case, the most critical of the statements
initially contested appear to be those made to Bobbitt while
purchasing the gun for Brown, but the SJC held these statements--to
which Bobbitt himself testified--were not subject to voluntariness
analysis because they were "part and parcel of the crime." Brown,
872 N.E.2d at 726. The other statements of Brown, made to
witnesses who testified to his seeming rationality, merely provided
the basis for their own assessment and--in a debatable case--are
admissible under state law.
Sheriff, 680 N.E.2d at 79-80.
Affirmed.
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