Barry v. Ficco

• Decision Date: 26 September 2005
• Docket Number: No. CIV.A. 03-CV10686RGS.,CIV.A. 03-CV10686RGS.
• Citation: 392 F.Supp.2d 83
• Parties: Kevin BARRY v. Edward FICCO.
• Court: U.S. District Court — District of Massachusetts

392 F.Supp.2d 83

Kevin BARRY v. Edward FICCO.

No. CIV.A. 03-CV10686RGS.

United States District Court, D. Massachusetts.

September 26, 2005.

COPYRIGHT MATERIAL OMITTED

Eva M. Badway, Attorney General's Office, Boston, for Souza Baranowski Correctional Center, Defendant.

Leslie W. O'Brien, Winchester, for Kevin Barry, Plaintiff.

MEMORANDUM AND ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

STEARNS, District Judge.

Upon review of the Magistrate Judge's Report and the petitioner's objections, I will adopt her Recommendation and order the petition dismissed. The Magistrate Judge correctly concludes that both grounds asserted in the petition are barred by procedural default. She is also correct that a motion to suppress would not have succeeded in light of the custodial inventory rule of United States v. Edwards, 415 U.S. 800, 807-808, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). See also Illinois v. Lafayette, 462 U.S. 640, 646, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). While Massachusetts may in some respects enforce the rule more strictly, see Commonwealth v. Bishop, 402 Mass. 449, 451, 523 N.E.2d 779 (1988), a federal habeas court is guided by federal law and the decisions of the United States Supreme Court. 28 U.S.C. § 2254(d)(1). Petitioner's hearsay claim is less a testimonial objection than an impugning of the chain of custody preceding the appearance of his boots as evidence at trial. Weaknesses in the chain of custody go to the weight and not the admissibility of evidence. That is the rule in both the federal and state courts. See United States v. Scharon, 187 F.3d 17, 22 (1st Cir.1999); Commonwealth v. Hogg, 365 Mass. 290, 294-295, 311 N.E.2d 63 (1974).

ORDER

For the foregoing reasons, the Recommendation of the Magistrate Judge is ADOPTED and the petition is DISMISSED.

SO ORDERED.

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

DEIN, United States Magistrate Judge.

I. INTRODUCTION

On January 22, 1998, the petitioner Kevin Barry ("Barry" or the "petitioner") was found guilty by a Worcester Superior Court jury of larceny of a motor vehicle (Mass. Gen. Laws ch. 266, § 28), eight counts of larceny of property with a value of more than $250.00 (Mass. Gen. Laws ch. 266, § 30), larceny of property with a value of $250.00 or less (Mass. Gen. Laws ch. 266, § 30) and breaking and entering a truck or trailer (Mass. Gen. Laws ch. 266, § 20A). The court found the petitioner to be a common and notorious thief under Mass. Gen. Laws ch. 266, § 40, and he was sentenced on these and other charges to which he had pleaded guilty, to a term of ten to fifteen years. The petitioner is presently serving that sentence.

Following several unsuccessful motions seeking primarily to set aside his guilty pleas, Barry's convictions were affirmed by the Massachusetts Appeals Court in an unpublished opinion on August 1, 2000. Commonwealth v. Barry, 49 Mass.App.Ct. 1120, 735 N.E.2d 1274 (2000) ("Barry I"). His application for leave to obtain further appellate review ("ALOFAR") was denied by the Massachusetts Supreme Judicial Court ("SJC") without opinion on September 29, 2000. Commonwealth v. Barry, 432 Mass. 1109, 738 N.E.2d 750 (2000) (table). His post-convictions motions, including a motion for a new trial pursuant to Mass. R.Crim. P. 30(a) and (b), and a motion for reconsideration, were denied. The Appeals Court entered its unpublished decision rejecting the petitioner's new claims on June 18, 2002. Commonwealth v. Barry, 55 Mass.App.Ct. 1104, 770 N.E.2d 558 (2002) ("Barry II"). Barry's ALOFAR was denied by the SJC without opinion on September 6, 2002. Commonwealth v. Barry, 437 Mass. 1107, 774 N.E.2d 1098 (2002) (table).

This matter is presently before the court on Barry's petition for a writ of habeas corpus. Therein he contends (1) that he was denied effective assistance of counsel "when his trial counsel failed to move to suppress a pair of boots that was the only evidence arguably connecting the petitioner to the scene of the crime," and that this argument was not procedurally defaulted, and (2) that he was denied effective assistance of counsel "when his trial counsel failed to object to hearsay evidence that was the only evidence connecting the boots to the petitioner, and therefore to the scene of the crime" and when his appellate counsel failed "to raise in the direct appeal the issue of trial counsel's ineffectiveness in failing to object to the hearsay evidence, which was a winning issue under Massachusetts case law." Memorandum in Support of Petition for Writ of Habeas Corpus (Docket No. 1) ("Pet.Mem.") at 1-2. Because this court finds that a motion to suppress would not likely have been successful, and that the admission of the challenged testimony did not create a substantial risk of a miscarriage of justice warranting reversal of the convictions, this court recommends to the District Judge to whom this case is assigned that the Petition for Writ of Habeas Corpus be DENIED.

II. STATEMENT OF FACTS¹

The Underlying Crime

Barry's convictions arise from a break-in at the West Boylston RV Center in West Boylston, Massachusetts, during the early morning of May 30, 1995. The relevant facts, as found by the Appeals Court in its unpublished Memorandum and Order Pursuant to Rule 1:28, Barry I (SA Ex. 6) are as follows.²

In the early morning of May 30, 1995, approximately twenty-five pieces of entertainment equipment including televisions, VCRs, radios, and CD players were removed from ten trailers on the premises of West Boylston RV Center (RV Center). A company pickup truck was also stolen and Massachusetts registration plate 808ZNT was removed from another vehicle on the lot.

The West Boylston police department discovered two sets of footprints tracking between the trailers and returning repeatedly to an initial point. The footprints were consistent with the defendant's boots in manufacturing characteristics, size, width, and degree of wear.

Several days later, on June 3, 1995, the defendant was seen in Cherryfield, Maine driving a pickup truck described as "identical" to the stolen truck. At 1:46 A.M. on June 4, 1995, a resident of Highland Avenue in Augusta, Maine noticed a suspicious vehicle on his street and telephoned the local police department. When the responding police cruiser drove past the parked truck, three individuals got out of the truck and ran. The abandoned truck was the same as that stolen from the RV Center and had attached to it the stolen Massachusetts registration plate 808ZNT.

Approximately four hours later, Officer Richard Dubois of the Augusta police department stopped the defendant at a traffic rotary 1.6 miles from where the truck had been abandoned. The area between Highland Avenue and the traffic rotary was described as a wooded area with tall grass and a steep embankment. The defendant was wet and muddy from the waist down, his jacket was dirty, and he was wearing brown work boots. The defendant identified himself as "David Jennings" and gave Officer Dubois three different social security numbers.

(Footnote omitted).

Footprint/Boots Evidence

At trial, the following evidence was adduced relating to the boots and footprints which are the basis of the habeas petition.

After Officer Dubois of the Augusta police department stopped Barry on June 4, 1995, he asked Barry to come down to the police station to be fingerprinted and photographed for I.D. purposes only. (Tr. I:122). Barry agreed and went to the station. (Tr. I:123). He was released about two hours later, around 8:00 A.M., without being charged with anything. (Tr. I:123-24). No prints or photographs were apparently taken of his boots.

Officer Mark Morrissey of the Sheriff's Department testified at trial. His brief testimony, which the petitioner now objects to as being inadmissible hearsay, was as follows:

Q. Did you become aware that on June 23rd of 1995, boots were taken from Kevin Barry by a member of the Sheriff's department staff?

A. Yes.

Q. What was done with those boots if you know?

A. They were taken and given to Officer Hanlon, which in turn Officer Hanlon gave the boots to myself.

Q. What town was Mr. Barry in when these boots were seized from?

A. West Boylston, MA.

Q. Did you come into contact or possession of these boots at some point?

A. Yes, I did.

Q. And what did you do with the boots?

A. They were put in an evidence bag and given to Detective Glynn of the West Boylston Police Department.

(Tr. I: 130-31). There were no objections to this testimony, and no cross-examination.

Officer Francis Glynn of the West Boylston Police Department also testified. (Tr. I:132). He testified that he had gone to the crime scene on May 30, 1995. (Id.). He testified as to the damage he observed, as well as to the footprints he observed which had been formed in the dirt apparently because of severe rains which had fallen between midnight and 2:00 A.M. that morning. (Tr. I:133-34). He took photographs of some of the prints, which were introduced as exhibits without objection. (Tr. I:134-41). Officer Glynn also testified as to a plaster cast he had taken of one of the footprints. (Tr. I:141-42). While the trailers and RVs were dusted for fingerprints, none were found. (Tr. 1:142). Officer Glynn gave the following testimony about receiving Barry's boots:

Q: At some point did you come into possession of a pair of boots?

A: Yes, I did.

Q: And can you tell us who gave you those boots?

A: Those boots came from Deputy Mark Morrissey from the House of Correction.

Q: What did you do with these boots upon receipt?

A: I received those boots and then I transported them to the Leominster State Police crime scene services.

Q: What happened after the boots were taken from the Leominster State Police?

A: They were reviewed and [testimony stricken]

Q: Did you come into possession of those boots again?

A: Yes, I did.

Q: What did you do with those boots at that point?

A: Those boots were taken back to my...