Torres v. Dennehy

• Citation: 615 F.3d 1
• Decision Date: 27 July 2010
• Docket Number: No. 09-1522.,09-1522.
• Parties: Alberto TORRES, Petitioner, Appellant, v. Kathleen DENNEHY, Respondent, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

615 F.3d 1

Alberto TORRES, Petitioner, Appellant,

v.Kathleen DENNEHY, Respondent, Appellee.

No. 09-1522.

United States Court of Appeals,First Circuit.

Heard April 6, 2010.

Decided July 27, 2010.

John M. Thompson with whom Thompson & Thompson, P.C. was on brief for petitioner, appellant.

Natalie S. Monroe, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General, was on brief for respondent, appellee.

Before LYNCH, Chief Judge, TORRUELLA and BOUDIN, Circuit Judges.

BOUDIN, Circuit Judge.

Alberto Torres was indicted for murder in Massachusetts Superior Court in May 1997 for causing the death of his girlfriend's fifteen-month-old child in October 1996 and for charges growing out of the alleged abuse of her two other children. An autopsy of the deceased child revealed a weeks-old broken leg; bruising over most of his body; and significant internal injuries, including a tear of the small intestine likely caused by a single blow “of massive force” roughly twelve hours before his death. Torres was tried by a jury, found guilty of murder and sentenced to life imprisonment in April 1999.

After his state appeals proved unsuccessful, Torres filed this petition for habeas corpus in which he claims, first, that police deliberately elicited statements from him in violation of the Sixth Amendment, and, second, that his counsel was ineffective for not raising this objection at trial. To place the objections in context we describe very briefly the evidence at trial and the events bearing on the statements that Torres says were improperly obtained.

The government's trial evidence consisted primarily of testimony from Torres' neighbors, forensic evidence and statements by Torres himself. Multiple neighbors testified that they had often seen Torres and his girlfriend, Susan Fappiano, abuse the children, but that Fappiano had never done so with the fifteen-month-old, who was described as her “favorite.” One neighbor reported seeing Torres throw the baby against a couch, and another testified that on the day the baby died, Torres picked him up and shook him while yelling “shut up.” Police responded to a 911 call from Fappiano later that day and found Torres holding the baby, by then lifeless.

At the scene, the police asked both Torres and his girlfriend for an explanation of bruising on the child. Fappiano told them that the baby had fallen out of his stroller, and Torres nodded in agreement; but when Torres was again asked what had happened, he stated that he had done nothing wrong and attempted to walk away. Later that night, Torres again denied any wrongdoing, telling police that neither he nor Fappiano ever struck their children, aside from Fappiano's occasional “slap [on] their hands.”

This story changed in subsequent meetings with the police. Roughly a week after the 911 call, Torres met with the police and, when told that Fappiano had blamed him for the child's death, told them that Fappiano had “abused the kids.” Two days later, Torres again met with the police and now stated that he had seen Fappiano strike her children “quite a few times,” acknowledging that he had lied about this in earlier statements. Throughout these meetings, Torres continued to deny any wrongdoing and to offer innocuous explanations for some of the baby's more serious injuries, saying, for example, that the baby had broken his leg by falling off a couch.

An additional set of statements-those central to the present appeal-were given by Torres to the police after he was indicted in May 1997. At that time, Torres was in jail on charges unrelated to this case. Instead of having the sheriff serve the indictment on Torres-apparently the normal procedure, Mass. Gen. Laws ch. 277 § 65 (2010)-the prosecutor sent two troopers, Barry O'Brien and Andrew Bzdel. O'Brien was the lead investigator in the case, and Bzdel had interviewed and taken statements from Torres during the initial investigation into the child's death in October 1996.

The prosecutor instructed the two troopers that Torres was represented by counsel and that they should not question him, but did not inform Torres' lawyer of the indictment or that it would be delivered directly to Torres. Torres had been assigned counsel in connection with the grand jury proceedings relating to the death of the baby and the abuse of the other two children, and it was anticipated that the same lawyer would be assigned to represent him once he was charged with those offenses.

The two troopers met with Torres in jail; explained to him that he had been indicted and that they had a warrant for his arrest on those indictments; and, knowing that Torres could understand English but could not read it, read the indictments to him out loud. The Supreme Judicial Court of Massachusetts (“SJC”), described the remainder of this interaction as follows:

After hearing just the first indictment, the defendant interrupted, saying that he had not hit any of the children. The trooper told him to stop, and the trooper resumed the reading of the remaining indictments. The defendant interrupted again. At that point ... the trooper read the defendant his Miranda warnings. Beyond the standard warnings, the trooper also told the defendant that he knew the defendant had a lawyer and that he (the defendant) should not say anything about the new charges. The defendant replied that his lawyer had told him there was nothing to worry about, and that he wanted to speak to the officers. The trooper asked him whether he really wanted to do so, reminding him of the rights that had been read to him and that he already had a lawyer. The defendant insisted that he wanted to talk. The trooper then read the defendant his Miranda rights a second time, and the defendant acknowledged that he understood each of those rights. The defendant then gave a statement, the contents of which were introduced at trial.

Commonwealth v. Torres, 442 Mass. 554, 813 N.E.2d 1261, 1276-77 (2004) (footnotes omitted). During this conversation, Torres told the police that Fappiano “must have” killed the child, but he refused to reduce his statement to writing, saying his lawyer had advised against it. Torres eventually told the troopers that he wanted to speak with his lawyer, and the conversation ended.

As Torres was being prepared to return to his cell, he gestured to Bzdel and asked him to come over. Torres then said, contrary to earlier statements, that he had seen Fappiano kill the baby; Bzdel asked what Fappiano had done, but Torres responded that he could not tell him. Later that afternoon, Torres asked to speak with a correctional officer and told the officer that Fappiano had “kicked [the baby] repeatedly” before his death-a description that conflicted with forensic evidence.

Torres was found guilty at trial and sentenced to life imprisonment, his May 1997 statements being introduced against him at trial to show evidence of a joint venture with Fappiano and consciousness of guilt. He filed a notice of appeal and thereafter unsuccessfully moved for a new trial, asserting for the first time that his May 1997 statements were taken in violation of his Sixth Amendment right to counsel because the troopers, knowing that he had an attorney, visited him at jail in hopes that he would make inculpatory statements.

The Sixth Amendment guarantees criminal defendants the right to counsel once formal criminal proceedings have begun, see Moran v. Burbine, 475 U.S. 412, 428, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); from that point forward, government agents may not “deliberately and designedly set out to elicit information” from a defendant represented by counsel, Brewer v. Williams, 430 U.S. 387, 399, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); see also Massiah v. United States, 377 U.S. 201, 205-06, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). However, “[t]he defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled.” Montejo v. Louisiana, --- U.S. ----, 129 S.Ct. 2079, 2085, 173 L.Ed.2d 955 (2009); see also Michigan v. Harvey, 494 U.S. 344, 352, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990).

The SJC affirmed both Torres' conviction and the denial of his motion for a new trial, holding among other things that the record failed to show that the troopers had deliberately attempted to elicit statements from him in violation of the Sixth Amendment. Torres, 813 N.E.2d at 1278. On October 19, 2005, Torres filed a petition for habeas corpus in federal district court in which he asserted the Sixth Amendment and inadequate assistance claims, along with an attack on the evidence and a Confrontation Clause claim.

The district court entered summary judgment against Torres on his deliberate elicitation and ineffective assistance claims, concluding that while various interpretations of the record might be possible, the SJC's findings were adequately supported and reasonable. Torres v. Dennehy, No. 05-30226, slip op. at 14-15, 22 (D.Mass. Jan.4, 2008). The district court denied reconsideration but certified appealability as to all claims except the attack on the evidence and entered final judgment denying the habeas petition. On this appeal, Torres presses only the deliberate elicitation and ineffective assistance claims.

We review the district court de novo, Forsyth v. Spencer, 595 F.3d 81, 84 (1st Cir.2010); but the governing habeas statute, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), provides that state courts' factual findings are presumed correct absent clear and convincing evidence to the contrary, 28 U.S.C. § 2254(e)(1) (2006), ¹ and that their dispositions of federal law are to be set aside only when “contrary to, or ... an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” id. § 2254(d)(1).

A state court decision is “contrary to” federal law if it “arrives at a conclusion opposite to that...