Brown v. Ruane
| Decision Date | 19 August 2009 |
| Docket Number | Civil Action No. 08-10555-WGY. |
| Parties | Troy BROWN, Petitioner v. Paul RUANE, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Jessica Vincent Barnett, Office of the Attorney General, Boston, MA, for Petitioner.
Dennis A. Shedd, Lexington, MA, for Respondent.
Petitioner Troy Brown ("Brown"), convicted in 2003 of armed assault with intent to rob a person sixty years or older, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Brown Mem. in Support ( ) [Doc. No. 9] at 1. He alleges that he was deprived of his federal constitutional right to confront the witnesses against him when a justice in the Superior Court restricted his cross-examination of certain police officers regarding their investigation of another suspect. Id. at 9. He contends that the Massachusetts Appeals Court improperly relied upon Commonwealth v. Miles, 420 Mass. 67, 648 N.E.2d 719 (1995), rather than the standard set forth by the U.S. Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). See Brown Mem. in Sup. at 11-12.
The Commonwealth advances two grounds for denial. First, Brown's petition should be dismissed as unexhausted because he failed to argue in the state courts that the Massachusetts Appeals Court applied an incorrect legal standard to the confrontation clause issue. Respondent Mem. in Opposition ( ) [Doc. No. 10] at 1. Alternatively, the Commonwealth argues that the petition ought be denied because the Massachusetts Appeals Court reasonably applied the controlling Supreme Court precedent. Id.
Brown was indicted on September 25, 2002 for assault and battery on a person sixty years old or older and armed assault with intent to rob a person sixty years old or older. See Docket Sheet at 9. On November 23, 2003, a jury found Brown guilty of assault with intent to rob but acquitted him on the count of assault and battery. A justice in the Superior Court sentenced him to seven to ten years in MCI Cedar Junction. Id. at 6.
Brown subsequently appealed his conviction and filed a motion requesting a new trial, which was denied on June 6, 2005. Id. at 8. Brown appealed the denial. The Massachusetts Appeals Court consolidated this appeal with his direct appeal and affirmed Brown's conviction. Commonwealth v. Brown, No. 04-P-1158, 67 Mass. App.Ct. 1116, 2006 WL 3392089 (Mass. App.Ct. Nov. 24, 2006). Brown moved for reconsideration, which was denied on December 19, 2006. See Order Denying Rehearing [Doc. No. 6, Ex. I]. The Massachusetts Supreme Judicial Court denied Brown's request for further appellate review on February 1, 2007. See Commonwealth v. Brown, 448 Mass. 1103, 861 N.E.2d 28 (2007).
Subsequently, Brown appealed his case to the United States Supreme Court, see [Doc. No. 6, Ex. L], which denied certiorari on October 1, 2007, 552 U.S. 834, 128 S.Ct. 64, 169 L.Ed.2d 52 (2007). See [Doc. No. 6, Ex. M]. Brown timely filed this petition for a writ of habeas corpus on April 2, 2008. Petition [Doc. No. 1].
A petitioner seeking a writ of habeas corpus bears the burden of rebutting by clear and convincing evidence the presumption that the factual findings, including implicit factual findings, of both the state and trial appellate courts,1 are correct. See 28 U.S.C. § 2254(e)(1). This Court thus rests its analysis on the factual record incorporated in the Massachusetts Appeals Court's unpublished opinion.
The victim was a sixty five year old man who was in poor health after suffering a stroke. See Brown, 2006 WL 3392089, at *1. On August 19, 2002, the victim went for a late night walk through his Fall River neighborhood, also known as "Corky Row". Id. At the time, he was taking an Alzheimer's medication to maintain his memory, in addition to a regimen of medication designed to combat anxiety, depression, diabetes, and hypertension. Id. Prior to departing his house around 10:00 P.M., the victim consumed three shots of scotch. Id.
After walking for approximately an hour, the victim was confronted by two men. Id. The victim triggered a hostile exchange when he told the men that Corky Row was "going downhill." Id. Following this exchange, the first assailant (later identified to be Tyrone Smith) struck the victim on the side of the head causing him to fall into a fence. Id. As he began to steady himself, the second assailant (later identified as Brown) lifted a small bicycle over the victim's head and demanded that he turn over all of his money. Id. After telling the assailant that he carried no money, the victim walked a short distance before he was confronted by an unidentified third person. Soon thereafter the first assailant (Smith) reappeared, and again struck the victim on the top of his head, which rendered him unconscious. Id. Upon regaining consciousness, the victim saw the second assailant (Brown) rifling through his pockets. The three men then fled. Id.
Following the attack, the victim walked home and rested for some time before he walked by himself to a nearby hospital for treatment, where he later described the assailants to Police Officer David Gouveia. Id. at *2. After reviewing photographs contained in a "gang book", the victim failed to identify his attackers. Id. Weeks later, Officer Gouveia visited the victim's home to show him an array of seven photographs. Id. The victim immediately identified Brown as the individual who held the bicycle over his head (the second assailant) and Smith as the man who punched him (the first assailant). Id.
The police went to Brown's residence on September 11, 2002. When they arrived at his home, Brown's girlfriend answered the door after a delay. Id. The police soon found Brown attempting to hide underneath a bed. Id. After he was arrested, Brown denied involvement in the assault and claimed that he was too drunk to remember anything. Id. Smith was arrested as well and later pled guilty. Id. at *1 n. 2.
Brown's defense rested on a theory of misidentification. Id. at *2. To support this theory, defense counsel cross-examined the victim regarding his ability to recall the assault based on his various medical conditions, and how alcohol in combination with prescription medications may have decreased his mental faculties. Id. Defense counsel also attempted to establish alibis for Brown. For example, Brown's girlfriend testified that he attended a party with her that night, and a hostess of that party confirmed his presence. Id. Additionally, defense counsel emphasized that Brown's appearance did not fit the victim's initial description of the second assailant. Id. Most importantly here, defense counsel sought to elicit police testimony that would cast Cagney Bettencourt ("Bettencourt") as the second assailant. Id. In particular, defense counsel sought to introduce Smith's post-arrest statements which contended that he and Bettencourt were together at the time of the incident, and that they had both talked to the victim but did not assault him. Smith also reported that he saw a third person named "Triz" punch the victim. Brown's counsel, however, did not call on Smith to elicit this testimony. Rather, he sought this evidence through cross examination of one of the police officers. As noted by the Massachusetts Appeals Court, "[t]rial counsel chose not to call Smith as a witness because he was not sure that Smith would affirm his earlier statement to the police." Id.
The trial judge excluded all questions relating to the police interview of Smith. Id. at *3. Brown contends that this ruling directly and improperly affected his ability to introduce evidence that Bettencourt, and not Brown, was the second assailant, thus depriving him of his constitutional right to confront a witness against him. Brown Mem. in Sup. at 11-14.
Brown also alleges that the government's closing argument was misleading and prejudicial by conflating the second and third suspects, even though Brown was suspected of being the second person:
We have this other array that somehow [trial counsel] wants to criticize the police for going back and showing another photo array after Mr. Brown and Mr. Smith had been arrested. Well, there was another person there that night. Should the police stop looking for this third person?
Tr. Vol 3. at 3-37. Brown argues that the jury was influenced by this statement and led to believe that Bettencourt was suspected of being the third person involved in the attack rather than the second assailant, in place of Brown. Brown Mem. In Sup. at 7.
Despite the limitations on cross examination, defense counsel nevertheless was able to introduce the Bettencourt theory into trial in several ways. For example, "Officer Gouveia testified on cross-examination that Bettencourt's name had surfaced during the investigation and that Officer Gouveia had attempted to locate him." Brown, 2006 WL 3392089, at *3. Moreover, defense counsel successfully "introduced Bettencourt's photograph in evidence and then argued to the jury that the description provided by [the victim] more closely resembled Bettencourt than the defendant." Id. More generally, the defense counsel solicited testimony from Officer Gouveia suggesting that Brown was taller than the victim's description of the man who held the bicycle over his head. Id. at *3 & n. 6.
In his closing remarks to the jury, defense counsel forcefully questioned the victim's ability to identify the attackers and argued that there were discrepancies between Brown's appearance and the victim's initial description of the second assailant to the police. Id. at *2.
In order for this Court to grant Brown a writ of habeas corpus, Brown must satisfy the requirements of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2254. AEDPA provides...
To continue reading
Request your trial