Chaleumphong v. Fico, Civil Action No. 02-10997-RGS.
| Decision Date | 24 April 2006 |
| Docket Number | Civil Action No. 02-10997-RGS. |
| Citation | 429 F.Supp.2d 410 |
| Parties | Viengsaymay CHALEUMPHONG, Petitioner, v. Edward FICO, Superintendent, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Robert L. Sheketoff, Boston, MA, for Petitioner.
Linda A. Wagner, Attorney General's Office, Boston, MA, for Respondent.
ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Magistrate Judge Dein's thorough analysis is persuasive. I agree with her that (1) that a proper federal constitutional ground supporting the vouching claim was invoked before the Supreme Judicial Court (SJC) by petitioner's citation to United States v. Dailey, 759 F.2d 192 (1st Cir. 1985); (2) that the SJC correctly determined that the trial judge committed no error in admitting the former prosecutor's testimony with appropriate limiting instructions, see Commonwealth v. Ciampa, 406 Mass. 257, 547 N.E.2d 314 (1989); (3) that there is no federal basis for petitioner's challenge of the refusal of the trial judge to instruct on the impact that voluntary intoxication might have had on petitioner's state of mind; (4) that petitioner waived any challenge to the trial judge's decision to seat a sixteenth juror by failing to raise a seasonable objection; and (5) that there is no merit to the claim that the Commonwealth was obligated to prove that the defendant knew that his (and the acts of his coventurers) met the legal definition of "extreme atrocity or cruelty." Consequently, the Magistrate Judge's Recommendation is ADOPTED and the petition is DISMISSED with prejudice.
SO ORDERED.
REPORT AND RECOMMENDATION ON RESPONDENT'S MOTION TO DISMISS
Viengsaymay Chaleumphong ("Chaleumphong") has brought this petition for a writ of habeas corpus challenging his state law convictions for first degree murder of Joshua Molina on a theory of extreme atrocity and cruelty, and assault and battery on Juan Santana by means of a dangerous weapon (the "Petition") (Docket # 1). Chaleumphong contends that the trial court violated his Fourteenth Amendment due process rights by (1) erroneously permitting a former prosecutor to vouch for cooperating witnesses; (2) failing to instruct the jury on voluntary intoxication; (3) depriving him of the benefit of state law regarding peremptory challenges; and (4) erroneously instructing the jury concerning the intent needed to convict for a joint venture involving a crime of extreme atrocity or cruelty. For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the Petition for Writ of Habeas Corpus be DENIED.
Chaleumphong's convictions arise from an incident which occurred on the evening of November 20, 1997 in Lowell, Massachusetts. The facts are provided in greater detail in the decision of the Massachusetts Supreme Judicial Court ("SJC"), Commonwealth v. Chaleumphong, 434 Mass. 70, 746 N.E.2d 1009 (2001), and will only be summarized herein.2
Chaleumphong and nine of his friends, most of whom were members of the Laos Boyz street gang in Lowell, ventured out to go "hunting," a semi-monthly activity that involved attacks on members of other rival gangs. Id. at 71, 746 N.E.2d at 1011-12. At approximately 9:30 p.m., Chaleumphong and his fellow gang members were driving around in two separate vehicles and encountered a group of three male Hispanic youths, namely Joshua Molina ("Molina"), Juan Santana ("Santana") and Johnny Lozada ("Lozada"). Id. at 71, 746 N.E.2d at 1012. Chaleumphong was driving one of the vehicles, and he pulled alongside the three men. Id. One of the passengers in Chaleumphong's vehicle summoned Molina, who walked over to the vehicle to speak with its occupants. Id. After a brief conversation, Molina walked away from Chaleumphong's vehicle and rejoined his two friends while Chaleumphong and his friends departed to meet up with the other members of his group. Id.
Chaleumphong and his friends decided to attack Molina and his friends based on a previous encounter between Molina and Chaleumphong's co-defendant, Donnie B ouphavongsa ("B ouphavongsa"). Id. at 72, 746 N.E.2d at 1012. Chaleumphong and his group proceeded to park their cars in an alley a short distance up the street and waited for Molina and his friends to pass. Id. Chaleumphong was armed with a claw-hammer, and Bouphavongsa had a ball peen hammer. Chaleumphong and his friends hid along the side of a diner and, as Molina walked by the diner, one of the gang members sprang from his hiding position and knocked him to the ground while Bouphavongsa, wielding the ball peen hammer, struck Molina in the face. Id. Bouphavongsa continued to strike Molina, but not in the head. Others beat him as well. Chaleumphong continued the beating of Molina by repeatedly striking him in the head with a claw-hammer even as Molina lay motionless on the sidewalk curled in the fetal position. Id. Molina's friend, Santana, was also beaten senseless during the attack while the third youth, Lozada, fled and was able to avoid the attack. Id. Chaleumphong and the other nine members of the group fled the scene before the police arrived. Id.
Molina died three days later from nine head wounds, any one of which was life threatening. Id. Each of Molina's head wounds were consistent with the blow of a heavy object (i.e., hammer) wielded with significant force. Id. Molina suffered severe hemorrhaging and multiple skull fractures which caused his brain to protrude through a hole in his skull. Id. Santana, who was beaten senseless in the attack, regained consciousness in a hospital and eventually recovered from his wounds. Id.
Additional facts relating to the events at trial will be addressed in connection with Chaleumphong's specific challenges.
A grand jury sitting in Middlesex County returned a three count indictment on December 24, 1997 charging the Petitioner with: (1) murder in the first degree of Joshua Molina on November 20, 1997; (2) armed assault with the intent to murder Juan Santana on November 20, 1997; and (3) assault and battery by means of a dangerous weapon of Juan Santana on November 20, 1997. On January 13, 1998, the Petitioner pleaded not guilty to all three counts. (SA Ex. 1).
A jury trial commenced on November 17, 1998 before Judge McHugh. (SA Ex. 1 at 7-8). On December 3, 1998, after the close of the evidence and deliberations, the jury returned guilty verdicts on the charges of murder in the first degree by reason of extreme atrocity and cruelty of Joshua Molina and assault and battery with a dangerous weapon of Juan Santana. (Id. at 10). The jury also returned a not guilty verdict on the charge of armed assault with intent to murder Juan Santana. (Id.). On the charge of murder in the first degree, the Petitioner was sentenced to a mandatory life sentence at MCI Cedar Junction. (Id. at 8). On the charge of assault and battery with a dangerous weapon, the Petitioner was sentenced to a term of nine to ten years to be served concurrently with the mandatory life term. (Id.).
The Petitioner filed a timely appeal with the Massachusetts Supreme Judicial Court on December 9, 1998.(Id.). On appeal, the Petitioner claimed that the trial judge erred by: "(1) announcing during the third day of empanelment that he might seat fewer than sixteen jurors; (2) admitting vouching evidence, and permitting the prosecutor to vouch for witnesses during argument; (3) refusing to instruct on involuntary intoxication; (4) lowering the Commonwealth's burden in an instruction that permitted the jury to infer malice from consciousness of guilt; and (5) lowering the Commonwealth's burden by instructing the jury that the Commonwealth was not required to prove that, for purposes of joint venture, the defendant was aware that the killing was committed with extreme atrocity or cruelty, or that he desired the killing to be carried out in that manner." Chaleumphong, 434 Mass. at 71, 746 N.E.2d at 1011.
The SJC affirmed Chaleumphong's lower court convictions on April 30, 2001, holding that: (1) the trial court's jury empanelment procedure was not in error and did not prejudice the defendant; (2) there was no improper vouching for the credibility of the Commonwealth's cooperating witnesses; (3) there was no error in denying an instruction on involuntary intoxication absent evidence of "debilitating intoxication;" (4) the trial court correctly instructed the jury on malice aforethought in the context of extreme atrocity and cruelty; and (5) the joint venture instructions were appropriate and the defendant's knowledge of the nature of his acts was not an element of murder by extreme atrocity or cruelty. Id. at 73-80, 746 N.E.2d at 1012-17.
On May 30, 2002, Petitioner filed the instant petition pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. (Docket No. 1). On December 12, 2002, Petitioner filed an "Initial Memorandum in Support of His Petition for Writ of Habeas Corpus" (Docket No. 10) ("Pet.Mem."). On May 9, 2003, Respondent filed a "Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus" (Docket No. 15) ("Opp.") arguing that the petition should be denied on grounds that the Petitioner's claims are not cognizable for habeas review because: (1) Petitioner has failed to exhaust state court remedies (ground one); (2) Petitioner challenges the state court's interpretation and application of state law (all grounds); (3) Petitioner is procedurally defaulted by reason of his failure to comport with Massachusetts' contemporaneous-objection rule (ground three); and (4) Petitioner's claims would create a new rule of constitutional law (grounds one and four). Respondent further asserts that the Petitioner cannot demonstrate that the state court's adjudication of his claims on the merits resulted in a decision that was contrary...
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