Torres v. Dubois ( 1999 )

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<pre> United States Court of Appeals For the First Circuit ____________________ No. 98-1924 PEDRO F. TORRES, Petitioner, v. LARRY E. DUBOIS, SCOTT HARSHBARGER, Respondents. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Reginald C. Lindsay, U.S. District Judge] ____________________ Before Torruella, Chief Judge, Aldrich and Cudahy, Senior Circuit Judges. _____________________ Brownlow M. Speer, Committee for Public Counsel Services, Public Defender Division, was on brief, for petitioner. Susanne Levsen, Assistant Attorney General, Criminal Bureau, with whom Scott Harshbarger, Attorney General, was on brief, for respondents. ____________________ ____________________

 TORRUELLA, Chief Judge. Plaintiff-appellant Pedro F. Torres ("Torres") filed this petition for writ of habeas corpus under 28 U.S.C. 2254. The sole issue before us is whether the jury instructions in Torres's state court murder trial violated his due process rights by impermissibly shifting the burden of proof. Like the district court before us, we find that the jury instructions did not violate Torres's due process rights under the Fourteenth Amendment, and we therefore affirm the district court's dismissal of the petition for writ of habeas corpus. BACKGROUND The events that led to the murder charge in this case are detailed in the prior decision of the Supreme Judicial Court of Massachusetts ("SJC"). See Commonwealth v. Torres, 651 N.E.2d 360 (Mass. 1995). In brief, during the evening of December 14, 1990, the defendant and his sister went to visit an individual who resided in a second-floor apartment over the Harborview Caf, a bar located in New Bedford. Shortly after midnight, the defendant's sister and another woman went downstairs to purchase beer at the bar. When the sister returned, she told the defendant that the victim, Jos Fernndes, had bothered her while she was in the bar. The defendant then entered the bar and confronted the victim. The two men stepped outside and began to argue about improper remarks the victim allegedly had made to the defendant's sister. After the defendant pushed him, Fernndes pulled a knife from his rear pocket, placed it on the ground, and challenged the defendant to fight "man to man." The defendant indicated that he did not want to fight. Fernndes, the defendant, and his sister then returned to the bar. Shortly thereafter, Fernndes displayed the knife again and started to threaten the defendant's sister. The bartender yelled at Fernndes to stop, and Fernndes put away the knife. The defendant then pulled out a gun and fired three shots at Fernndes. The first shot, fired from a range of six to eighteen inches, hit the victim in the face. The other two shots entered the victim's back. When the defendant realized that the bartender had telephoned the police, he ran out of the bar. He and his sister telephoned a taxi and returned home, where the defendant ate dinner and went to sleep. Later that morning, an officer with the New Bedford police department arrested the defendant and transported him to the police station. On route to the station, the defendant asked the officer whether the victim had died. When the officer did not respond, the defendant asked whether the victim had "died right away, or did he talk to you cops." The officer advised the defendant of his Miranda rights and told him that if he wished to speak with the officer, he could do so at the police station. The defendant then stated that he wished to speak with the officer about the incident, and that the victim "had no respect and deserved what he got." At the station, the officer booked the defendant and again advised him of his Miranda rights. The defendant then gave a statement. He claimed that the victim had a knife when the two men had been standing outside the bar. Once inside the bar, the defendant heard Fernndes threaten his sister. The sister shoved the victim, and the victim responded by pushing her in the face with his hand. At this point, the defendant walked over to Fernndes and shot him in the face. When Fernndes tried to run away, the defendant pursued him and shot him twice in the back. The defendant agreed to repeat this statement and have it videotaped. The videotape was admitted in evidence and viewed by the jury. The defense offered no evidence, conceding the homicide and defending solely on a theory of manslaughter, rather than murder in the first degree by deliberate premeditation, as the prosecution claimed. The jury convicted the defendant of premeditated murder in the first degree, and the trial judge sentenced him to life imprisonment. Torres appealed, asserting several alleged errors in the judge's instructions to the jury. The Supreme Judicial Court affirmed his conviction, see id., and Torres brought this petition for writ of habeas corpus in the district court for the district of Massachusetts. The district court found that the jury instructions did not violate Torres' due process rights. However, the district court issued a certificate of appealability on the issue of whether the trial judge's jury instructions improperly shifted the burden of proof. This appeal ensued.

 DISCUSSION I. Procedural Default Federal habeas review is precluded if the state court reached its decision on an adequate and independent state-law ground when affirming Torres's conviction. See Burks v. DuBois, 55 F.3d 712, 716 (1st Cir. 1995) (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991); Harris v. DuBois, 489 U.S. 255 (1989); and Ortizv. DuBois, 19 F.3d 708, 714 (1st Cir. 1994)). One such ground in this case may be Massachusetts' "contemporaneous objection" rule. Commonwealth v. Fluker, 385 N.E.2d 256 (Mass. 1979) (failure to object specifically to trial deficiency "precludes appellate review"); see also McLaughlin v. Gabriel, 726 F.2d 7, 8 (1st Cir. 1984) (in Massachusetts, "defendant normally cannot challenge an allegedly defective charge unless he has objected to the specific instruction at trial"). Torres did not object to the giving of the contested jury instruction at trial. We normally find a waiver of this state ground where the state courts, after reviewing a conviction, affirm it, not on the basis of the "contemporaneous objection rule," but on the basis of their own analysis of federal law. See Puleio v. Vose, 830 F.2d 1197, 1200 (1st Cir. 1987) (waiver only occurs if court reaches "gist of the federal constitutional question"); McCown v. Callahan, 726 F.2d 1, 3 (1st Cir. 1984) (waiver if Supreme Judicial Court conducts "detailed examination of federal law and federal cases . . . necessary to decide a specific question of federal law"). Sometimes it is difficult to determine whether or not the state courts have relied on the "contemporaneous objection rule," or on their view of federal law, particularly where, as here, the state Supreme Judicial Court exercised its special statutory power to review verdicts in capital cases, see Mass. Gen. Laws ch. 278, 33E, in order to determine whether there was a "substantial risk of a miscarriage of justice." This special discretionary review, in a sense, always overlooks a failure to raise an objection at trial, but it does so only in the context of applying a specially stringent standard of review. See Doucette v. Vose, 842 F.2d 538, 539 (1st Cir. 1988). We have held that the mere fact that the Supreme Judicial Court engages in such review does not automatically waive -- for federal habeas purposes -- its "adequate state ground." Id. Nonetheless, if, in the course of such review, the Supreme Judicial Court makes reasonably clear that its reasons for affirming a conviction rest upon its view of federal law, we will find a waiver. See id. That is the case here. In our view, the Supreme Judicial Court reached, and decided, the federal issue. Because it may be useful for the reader to see the kind of state court discussion that will lead us to find a waiver, and because the discussion clearly explains the federal law issue, we set forth that discussion in full: c. Reasonable provocation instruction. The defendant next asserts that, because the judge mingled correct with incorrect instructions regarding the mitigating circumstance of heat of passion, without any explanation of the "constitutionally infirm" instructions, the portion of the charge addressing "reasonable provocation" denied the defendant his Fourteenth Amendment due process rights. We agree that the judge misstated the law when he instructed that "in order to prove the defendant guilty of voluntary manslaughter, the Commonwealth must prove . . . [that] the defendant injured the victim as a result of a sudden combat or in the heat of passion." Nevertheless, we conclude that the error did not violate the defendant's Federal due process rights, nor did it create a substantial likelihood of a miscarriage of justice. The due process clause of the Fourteenth Amendment to the United States Constitution "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Francis v. Franklin, 471 U.S. 307, 313 (1985), quoting In re Winship, 397 U.S. 358, 364 (1970). This fundamental principle prohibits a judge from using "evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime." Francis v. Franklin, supra. See Sandstrom v. Montana, 442 U.S. 510, 520-524 (1979); Commonwealth v. Lykus, 406 Mass. 135, 143 (1989). In order to determine whether a jury instruction fails to meet constitutional muster, a reviewing court first must focus on the specific language challenged. California v. Brown, 479 U.S. 538, 541 (1987), citing Francis v. Franklin, supra at 315. If that language, considered in isolation, "could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense," Francis v. Franklin, supra, then the reviewing court must examine the charge as a whole to see if the entire charge delivered a correct interpretation of the law. SeeCalifornia v. Brown, supra at 541. See alsoBoyde v. California, 494 U.S. 370, 378 (1990), quoting Cupp v. Naughten, 414 U.S. 141 (1973) ("we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge"). The defendant cites Francis v. Franklin, supra, in support of his claim. In that case, the United States Supreme Court stated that "[l]anguage that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity" because "[a] reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict" (footnote omitted). Id. at 322. Francis v. Franklin does not assist the defendant for two reasons. First, although, at one point, the judge misstated the Commonwealth's burden, we do not believe that the error had "the effect of relieving the [Commonwealth] of its burden of persuasion beyond a reasonable doubt of every essential element of [the] crime [charged]," id. at 313, nor did it shift any burden to the defendant. See Sandstrom v. Montana, supra at 520-524. The judge's misstatement, therefore, was not "constitutionally infirm." Second, even if we were to conclude that the instruction was constitutionally infirm, Francis v. Franklinaccepts the general principle that such an instruction should be considered in the context of the entire charge. See Estelle v.McGuire, 502 U.S. 62, 72 (1991), quoting Cuppv. Naughten, 414 U.S. 141, 147 (1973) ("instruction 'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole"); Commonwealth v. Repoza, 400 Mass. 516, 519, cert. denied, 484 U.S. 935 (1987) ("jury instructions are not to be viewed in isolation but rather in the context of the charge as a whole"). Reviewing the whole charge, including the judge's emphatic and repeated statements that only the Commonwealth--and never the defendant--bore any burden, we believe that the jury could not have concluded that the judge's misstatement created an unconstitutional presumption relieving the State of its burden of persuasion beyond a reasonable doubt of every element of deliberately premeditated murder in the first degree. The instruction did not violate the defendant's Federal due process rights, nor did it create a substantial likelihood of a miscarriage of justice. Torres, 651 N.E.2d at 366-68 (footnotes in original). Although state law is cited in this discussion, federal case law is preeminent. Because the resolution of Torres's claim was not based on an adequate and independent state-law ground, but rather on federal constitutional law, his claim is not in procedural default. II. Clearly Established Federal Law The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, Title I, 104, 110 Stat. 1219, governs the issuance of writs of habeas corpus. It states in part that: (d) [a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-- (1) 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 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. 2254(d). First, we must determine whether "the Supreme Court has prescribed a rule that governs the petitioner's claim." Ortiz v. DuBois, 145 F.3d 16, 24 (1st Cir. 1998). If so, we analyze whether the state court decision is "contrary to" that prescribed rule. See id. "To obtain relief . . . [the] petitioner must show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court." Id. at 24-25. Because we agree with the parties that Francis v. Franklin, 471 U.S. 307 (1985), provides the governing rule, our discussion centers on that Supreme Court case. In Franklin, the Supreme Court evaluated jury instructions stating that: (1) "[t]he acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted," id. at 309, and (2) "[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted." Id. At issue was "whether these instructions, when read in the context of a jury charge as a whole, violate the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt." Id. Because these jury instructions directed "the jury to presume an essential element of the offense," id. at 316, they undermined "the factfinder's responsibility at trial, based on evidence adduced by the State to find the ultimate facts beyond a reasonable doubt." Id. Here, Torres complains that the judge's instruction on mitigating circumstances created an evidentiary presumption that had the effect of relieving the Commonwealth of its burden to prove beyond a reasonable doubt each element of the crime charged against the petitioner. The contested instruction is as follows: The crime of manslaughter involves certain mitigating circumstances which I will outline for you, and these mitigating circumstances, if they exist to your satisfaction, operate to negate the element of malice. (Emphasis added). As demonstrated in the quotation from the SJC's opinion, see supra at 8, the state court recognized that this instruction was a misstatement of the law, but the instruction did not constitute error under Franklin because: (1) it did not relieve the Commonwealth of proving beyond a reasonable doubt each element of the offense charged; and (2) it did not inappropriately shift any burden of proof to the petitioner. We agree with the district court in this case that "[t]he instruction merely pointed out that the jury could find the lesser included offense of manslaughter if the jury found, in the evidence, circumstances which mitigated one of the elements of murder." Consequently, the petitioner has failed to show that Supreme Court precedent requires an outcome contrary to that reached by the Supreme Judicial Court. CONCLUSION For the reasons stated above, the judgment of the district court is AFFIRMED. </pre>

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