LIPEZ, Circuit Judge.
In this appeal arising from a 28 U.S.C. § 2254 petition, David Morgan challenges his Massachusetts state court conviction of first degree murder. Morgan argues that the district court erred in dismissing his petition because the Massachusetts Supreme Judicial Court ("SJC") applied a beyond a reasonable doubt standard contrary to that articulated by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in evaluating his claim that there was insufficient evidence presented at trial to support his conviction. Alternatively, Morgan argues that, even if the SJC applied the correct standard, it did so unreasonably, because the evidence presented against him was insufficient to establish his guilt beyond a reasonable doubt. We reject these arguments and affirm the district court's dismissal of Morgan's petition.
Morgan does not dispute the SJC's account of the facts of this case, which we set forth almost in full below. We do so because the import of Morgan's sufficiency argument, which presents a closer question than some such arguments, cannot be understood without a full statement of the facts. Before doing so, however, we offer a brief introduction to the circumstances of the case and the individuals involved for clarity's sake.
With that brief introduction, we turn to the SJC's recitation of the facts.
Magnum or specific types of nine millimeter weapons.
To summarize, the prosecution presented no physical evidence linking Morgan to the crime. However, there was extensive circumstantial evidence tending to show Morgan's guilt. This evidence included: 1) Morgan's general threats to kill the person who burglarized his apartment, 2) Morgan's specific threats to kill Rowe, 3) testimony that the last time Rowe was seen alive he was getting into a car with Morgan and Johnson, 4) testimony that Morgan knew Rowe was missing and identified the murder weapon as a 9 millimeter gun before this information was widely known, 5) testimony that while both Morgan and Johnson had weapons prior to the murder, Morgan needed a "clean" gun after the killing, and 6) numerous statements by Morgan indicating a consciousness of guilt.
Morgan, along with Floyd Johnson, was indicted for murder and conspiracy to commit murder. The trial judge granted an unopposed motion to sever Johnson's trial from Morgan's during the jury selection process, and the Commonwealth eventually entered a nolle prosequi of Johnson's murder indictment.
Morgan appealed. While that appeal was pending, he filed a motion for a new trial in 2004 that was denied by the trial judge. Morgan appealed that denial, and his two appeals were consolidated.
In 2007, the SJC affirmed Morgan's conviction and the denial of his motion for a new trial. Morgan then filed a habeas petition pursuant to 18 U.S.C. § 2254 with the United States District Court for the District of Massachusetts, seeking relief on four grounds: 1) the Commonwealth's evidence was insufficient to support his conviction, 2) he received ineffective assistance of counsel, 3) there was significant prosecutorial misconduct during his trial, and 4) he was denied his right to cross-examine witnesses. In a lengthy and carefully reasoned decision, the district court found Morgan's arguments unavailing and dismissed his petition. However, the district court granted a certificate of appealability as to Morgan's claim that the evidence was insufficient to support his conviction on a theory of principal liability.
Morgan raises two related arguments concerning the sufficiency of the evidence supporting his conviction: 1) in evaluating his sufficiency of the evidence argument, the SJC applied a beyond a reasonable doubt standard that was contrary to the Supreme Court's decision in Jackson, and 2) even if the SJC identified the correct Jackson standard, the standard was unreasonably applied. With regard to the latter argument, Morgan asserts that even if there was sufficient evidence to convict him under a joint venture theory, the evidence was insufficient to allow the jury to determine that he, as opposed to Floyd Johnson, was the principal actor in the murder, i.e., the one who pulled the trigger.
A district court's decision to deny or grant a habeas petition under 28 U.S.C. § 2254 is subject to de novo review. O'Laughlin v. O'Brien, 568 F.3d 287, 298 (1st Cir.2009). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a successful claim for relief pursuant to § 2254 must show that the challenged state court adjudication was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or that the decision "was based on an unreasonable determination of the facts," id. at § 2254(d)(2). As noted, Morgan does not challenge the state court's fact-finding. Instead, he focuses on the "contrary to" and "unreasonable application" prongs of § 2254(d)(1).
In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court distinguished between the "contrary to" and "unreasonable application" prongs of the statute. It explained that a state court decision is "contrary to" established law when 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." Id. at 413, 120 S.Ct. 1495. In contrast, the Court stated that "a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407, 120 S.Ct. 1495; see also Hurtado v. Tucker, 245 F.3d 7, 15 (1st Cir.2001) (noting distinction made in Williams).
In considering the "unreasonable application" prong of § 2254(d)(1), the Supreme Court has emphasized that reasonableness must be determined according to an objective standard. Williams, 529 U.S. at 409-10, 120 S.Ct. 1495. Furthermore, because the statute uses the word "unreasonable," as opposed to "erroneous" or "incorrect," a state court's application of federal law must go beyond simple error to justify issuance of the writ of habeas corpus. Id. at 411, 120 S.Ct. 1495. Thus, "`some increment of incorrectness beyond error is required.'" O'Laughlin, 568 F.3d at 299 (quoting McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir.2002)). "The increment need not necessarily be great, but it must be great enough to make the decision
Thus, as we have explained, "[h]abeas review involves the layering of two standards. The habeas question of whether the state court decision is objectively unreasonable is layered on top of the underlying standard governing the constitutional right asserted." O'Laughlin, 568 F.3d at 299 (internal quotation marks omitted). We turn next to the constitutional right at issue here.
In Jackson, the Court explained that a habeas court is not to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." 443 U.S. at 318-19, 99 S.Ct. 2781 (internal quotation marks omitted). Rather, the proper inquiry is "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." Id. at 319, 99 S.Ct. 2781. In applying the Jackson standard, not only must all evidence be examined in the light most favorable to the prosecution, but so must "inferences that may be reasonably drawn from it." United States v. Andujar, 49 F.3d 16, 20 (1st Cir.1995). Accordingly, "the reviewing court . . . [must] resolve[] all credibility issues in favor of the verdict." Id. Additionally, the reasoning employed by the state court is irrelevant, and "[t]he question whether the evidence is constitutionally sufficient is . . . wholly unrelated to the question of how rationally the verdict was actually reached." Jackson, 443 U.S. at 319 n. 13, 99 S.Ct. 2781.
We have previously noted that "[t]he Jackson standard is as easy to articulate as it is difficult to apply." O'Laughlin, 568 F.3d at 300. However, despite the imprecision inherent in the term reasonable doubt, we have attempted to describe the level of certainty necessary to support a criminal conviction. In doing so, we have explained that "beyond a reasonable doubt does not require the exclusion of every other hypothesis; it is enough that all reasonable doubts are excluded." O'Laughlin, 568 F.3d at 301 (quoting Stewart v. Coalter, 48 F.3d 610, 616 (1st Cir. 1995) (internal quotation marks omitted)). Accordingly, a conviction may be supported by circumstantial evidence alone. Id. While "guilt beyond a reasonable doubt cannot be premised on pure conjecture. . . .[,] a conjecture consistent with the evidence becomes less and less a conjecture, and moves gradually toward proof, as alternative innocent explanations are discarded or made less likely." Id. (internal quotation marks omitted).
However, there are limits to the probative value of circumstantial evidence, and "we are loath to stack inference upon inference in order to uphold the jury's verdict." United States v. Valerio, 48 F.3d 58, 64 (1st Cir.1995). Thus,
O'Laughlin, 568 F.3d at 301 (alterations omitted) (quoting United States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir.1995)).
In determining when such doubts must necessarily exist, we have identified certain guidelines by which to evaluate sufficiency of the evidence challenges raised under § 2254(d)(1)'s "unreasonable application" prong:
O'Laughlin, 568 F.3d at 304 n. 22 (quoting Hurtado, 245 F.3d at 18).
Finally, although we must reach our own conclusion on the petitioner's constitutional claims, we have emphasized "the great degree of deference state court judgments are due, especially those that uphold jury verdicts." Id. at 300. Accordingly, "[w]hen the record is fairly susceptible of two competing scenarios, the choice between those scenarios ordinarily is for the jury." United States v. Dwinells, 508 F.3d 63, 74 (1st Cir.2007); see also United States v. Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir.1985) ("[T]he jury is free to choose among varying interpretations of the evidence, as long as the interpretation they choose is reasonable.").
In Massachusetts, first degree murder is "committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life." Mass. Gen. Laws ch. 265, § 1. A defendant in Massachusetts may be convicted of first degree murder under a theory of either principal liability or joint venture. In order to convict a defendant under a principal liability theory, the evidence, "by any reasonable interpretation. . ., [must show that] the alleged perpetrator has himself committed all elements of the crime." Commonwealth v. Santos, 440 Mass. 281, 797 N.E.2d 1191, 1199 n. 6 (2003). When the crime charged is first degree murder and the killing is alleged to have been committed with a firearm, a principal liability theory requires that the prosecution prove that the defendant actually pulled the trigger to kill the victim. See, e.g., Commonwealth v. Stewart, 450 Mass. 25, 875 N.E.2d 846, 855 (2007) (finding that "sufficient evidence for a rational jury to find beyond a reasonable doubt that the defendant was the shooter. . . . supports a finding of principal liability"); Commonwealth v. Cannon, 449 Mass. 462, 869 N.E.2d 594, 599-600 (2007) (noting that there was insufficient evidence to support conviction under a theory of principal liability where "the evidence, collectively, was insufficient for the jury to find beyond a reasonable doubt that the defendant was the shooter").
The prosecution may choose to try a case under either a theory of principal liability, joint venture, or both. See, e.g., Stewart, 875 N.E.2d at 854 (noting that the case was submitted to the jury on theories of both principal and joint venture liability). However, if the prosecution chooses to proceed under a theory of principal liability, and the jury does not receive an instruction on joint venture, the joint venture theory is deemed to have been waived and may not be resurrected should the evidence be insufficient to convict on a principal liability theory. See Commonwealth v. Salemme, 395 Mass. 594, 481 N.E.2d 471, 474 n. 5, 476-77 (1985) (reversing conviction and remanding for a judgment of acquittal where state waived joint venture theory, but evidence equally well supported conclusion that a co-conspirator shot the victim).
Morgan argues that the SJC applied a preponderance of the evidence standard to the evidence presented at his trial, instead of the beyond a reasonable doubt standard required by Jackson. He cites the SJC's statement that Morgan's conviction under a principal liability theory was justified because "the evidence did point more strongly in the direction of the defendant's culpability as the perpetrator such that a jury could reasonably infer that the defendant was the shooter beyond a reasonable doubt." Morgan I, 868 N.E.2d at 107. In particular, Morgan argues that the SJC's statement that the "evidence did point more strongly" to him than to Johnson transformed the beyond a reasonable doubt standard into a mere preponderance of the evidence standard, and that it held that the evidence was sufficient to support his conviction under this lesser standard.
Morgan misreads the SJC's holding. The SJC began its analysis by describing the sufficiency of the evidence standard under Massachusetts law. In doing so, it relied on its previous decision, Commonwealth v. Latimore, 378 Mass. 671, 393 N.E.2d 370 (1979), in which it laid out a sufficiency of the evidence standard that we have recognized as consistent with Jackson. See Leftwich v. Maloney, 532 F.3d 20, 24 (1st Cir.2008) ("[T]he Latimore court adopted the governing federal constitutional standard as the Massachusetts standard for sufficiency of the evidence challenges."). We have explained that "a state-court adjudication of an issue framed in terms of state law may receive section 2254(d)(1) deference so long as the state standard is at least as protective of the defendant's rights as its federal counterpart." Id. at 23-24; see also O'Laughlin, 568 F.3d at 299 n. 15 (stating same and finding the Latimore decision to be an express adoption of the Jackson standard).
The SJC did not depart from this analysis in Morgan's case. As the district court explained,
Morgan II, 677 F.Supp.2d at 434-35.
At a hearing before the district court, in his brief on appeal, and at oral argument Morgan acknowledged that the evidence presented at trial may have been sufficient for the jury to have found him guilty on a theory of joint venture. As recounted above, there was evidence of Morgan's motive, means and opportunity to commit the murder, as well as evidence that Rowe was last seen alive getting into a car with Morgan and his co-conspirator, that Morgan was aware of his disappearance before Rowe's family realized that he was missing,
In this appeal, Morgan claims that the evidence offered at his trial equally, or nearly equally, supports the conclusion that Johnson was the shooter and thus principally liable for Rowe's death. In making this argument, Morgan relies on several cases from both federal and Massachusetts state courts holding that "[w]hen the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof." Salemme, 481 N.E.2d at 476 (internal quotation marks omitted).
After the jury found the defendant guilty, the SJC reversed the conviction and remanded the case for entry of a judgment of acquittal. It held that "[n]o rational trier of fact . . . could conclude, beyond a reasonable doubt . . . that [the defendant], rather than [the alternate suspect], fired the shot." Salemme, 481 N.E.2d at 475 (citation omitted). The SJC noted that the possibility that the victim simply turned his head would explain the direction from which the shot appeared to have been fired, and added that "a defendant may not be convicted solely on the basis of consciousness of guilt evidence." Id. at 476. Essentially, the SJC found that the scant circumstantial evidence pointing to the defendant in that case was insufficient to allow anything more than conjecture as to which suspect actually killed the victim. It went on to explain that "[i]f, upon all the evidence, the question of the guilt of the defendant is left to conjecture or surmise and has no solid foundation in established facts, a verdict of guilty cannot stand." Id. at 475.
Morgan also relies on the Sixth Circuit's decision in Joseph v. Coyle, 469 F.3d 441 (6th Cir.2006). In that case, the victim was the current boyfriend of the defendant's ex-girlfriend and the defendant was alleged to have murdered the victim out of jealousy. There was testimony at trial that the defendant wrote letters to his ex-girlfriend communicating his jealousy and indicating that he was secretly watching her and the victim when they were together. Additionally, a car similar to that driven by the defendant and his roommate was seen circling the area prior to the victim's disappearance, and tires on that vehicle were matched to tire tracks found in the area. The defendant admitted that he and his roommate were driving the car on the evening of the murder and a knife that was usually kept in the car was missing the following day. The victim was found with two potentially fatal stab wounds. His body was discovered on property owned by the defendant's grandparents and it was wrapped in construction material, the jagged edge of which matched material found at a job site at which the defendant and his roommate worked.
Considering these facts, the Sixth Circuit found that there was insufficient evidence to support application of a capital specification that required that the defendant was the "principal offender," meaning that he personally struck the fatal blow. It reasoned that all of the evidence implicating the defendant also implicated his roommate, and "none of th[e] evidence shows that [the defendant] personally inflicted either stab wound." Joseph, 469 F.3d at 455. The court explained that, for application of the capital specification, "when the defendant and a coconspirator are present at the time and place of the murder, there must be evidence showing
Id.
Morgan argues that, as in Salemme and Joseph, the circumstantial evidence offered against him is insufficient to prove beyond a reasonable doubt that he, and not a specific alternate suspect (Johnson), was the principal actor in the crime charged. This argument ignores evidence that goes significantly further in distinguishing between Morgan and his co-conspirator than the evidence in Salemme and Joseph.
First, there is evidence of numerous actions and statements by Morgan after Rowe's disappearance that tend to show Morgan's consciousness of guilt. In the evening of the day after Lodge saw Rowe get into a car with Morgan and Johnson, Morgan called Lodge and uncharacteristically kept him on the phone for an extended period of time. In the course of this conversation, Morgan told Lodge that "[Rowe's] wife report[ed] him missing" and "people said I killed him." These statements were made five days before Rowe was actually reported missing, and Rowe's wife testified that, on March 3, the day of Morgan's call to Lodge, she believed that Rowe was not returning her calls or answering the door because he had simply gone to sleep.
Additionally, there was evidence that Morgan went out of his way to ingratiate himself with Lodge. When Lodge was arrested for possession of marijuana, Morgan told him "[y]ou cannot become an informant. You only charged for weed and weed is a misdemeanor. I will get you out. Don't tell them nothing." The day after the arrest, Morgan told Lodge's girlfriend that he would pay Lodge's bail, and, after it was determined that Lodge would not be released because of an immigration detainer, Morgan paid for an attorney to visit Lodge on several occasions to help with his case. Additionally, Morgan paid moving expenses for Lodge's girlfriend.
There is also a series of statements by Morgan to McLean that more directly implicate him in the murder. In particular, McLean testified that he was in possession of a gun that belonged to Rowe, and that shortly after Rowe's disappearance Morgan sought to buy the gun from him because "[Rowe's] friends [were] after him so he wanted a clean gun." When McLean demurred, explaining that Rowe may come back to retrieve the gun, Morgan told him "[w]ell, you don't have to worry about [Rowe], because [you'll] never see [Rowe] again. Trust me, you'll never see [Rowe] again." Not only does this statement indicate that Morgan was aware of Rowe's death, but it also suggests that the gun that Morgan was previously seen with was no longer "clean," meaning that it had since been used in the commission of a crime. Given the fact that McLean testified that he saw both Morgan and Johnson with guns just a few days before, the fact that Morgan is the one who now needs a "clean" gun suggests that he was the shooter.
The prosecution also introduced numerous statements by Morgan reflecting a general intent to harm the person who robbed his apartment, as well as a specific intent to harm Rowe. In particular, Morgan told Rowe and Rowe's wife that whoever broke into his apartment would "feel it," and, brandishing a gun, told one witness that "you will hear about" the person who robbed him. Furthermore, a second witness testified that on another occasion Morgan, while "waving" a gun, stated that "if [Rowe] or anybody tried to rob him, he would kill them." There was also evidence that Morgan believed Rowe to be a thief, as he told police officers that Rowe "would rob you."
Morgan argues forcefully that the evidence recited above does not rule out the theory that Johnson was the one who actually shot Rowe. He notes that Johnson was present when he made some of the statements and that all of the statements and actions attributed to him would also make sense if Johnson had been the one to kill Rowe: Morgan's intent to kill Rowe would be satisfied; he would have some consciousness of guilt as to the murder; and he would possess information about the killing that a completely innocent person would not.
Morgan's argument is, at best, a reasonable response to the incorrect question. When reviewing a jury verdict for sufficiency of the evidence, we do not ask whether there is a plausible alternate interpretation of the evidence. Rather, the proper question is "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." Jackson, 443 U.S. at 319, 99 S.Ct. 2781.
The jury heard testimony from multiple witnesses regarding Morgan's threats to kill the person who burglarized his apartment, his specific intent to kill Rowe, his need for a "clean" gun after the murder, and his consciousness of guilt after Rowe's disappearance. The jury found this testimony credible, as must we, see Jackson, 443 U.S. at 319, 99 S.Ct. 2781 ("Once a defendant has been found guilty of the crime charged . . . upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution"), and, after a proper charge regarding the beyond a reasonable doubt standard, determined that Morgan was guilty. This case does not present "equal or nearly
Although "application of the beyond-a-reasonable-doubt standard to the evidence is not irretrievably committed to jury discretion," Jackson, 443 U.S. at 317 n. 10, 99 S.Ct. 2781, we may not second guess a jury's verdict where it has chosen a reasonable interpretation of the evidence before it, see Guerrero-Guerrero, 776 F.2d at 1075 ("[T]he jury is free to choose among varying interpretations of the evidence, as long as the interpretation they choose is reasonable.").
Affirmed.
