Brown v. O'Brien

• Decision Date: 24 January 2012
• Docket Number: No. 11–1037.,11–1037.
• Citation: 666 F.3d 818
• Parties: Eric BROWN, Petitioner, Appellant, v. Steven J. O'BRIEN, Superintendent of Old Colony Correctional Center, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

666 F.3d 818

Eric BROWN, Petitioner, Appellant,

v.Steven J. O'BRIEN, Superintendent of Old Colony Correctional Center, Respondent, Appellee.

No. 11–1037.

United States Court of Appeals, First Circuit.

Heard Nov. 9, 2011.Decided Jan. 24, 2012.

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.

Before BOUDIN, SELYA and HOWARD, Circuit Judges.

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, 449 Mass. 747, 872 N.E.2d 711 (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 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 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 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”) 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, ––– U.S. ––––, 130 S.Ct. 841, 848–49, 175 L.Ed.2d 738 (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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), no reasonable jury could find that he is the person who committed the murders. 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 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, 460 Mass. 424, 951 N.E.2d 891, 897 (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 be...