Clarke v. Spencer

• Decision Date: 22 September 2009
• Docket Number: No. 08-2476.,08-2476.
• Citation: Clarke v. Spencer, 582 F.3d 135 (1st Cir. 2009)
• Parties: Alton CLARKE, Petitioner, Appellant, v. Luis SPENCER, Superintendent at MCI-Norfolk, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

582 F.3d 135

Alton CLARKE, Petitioner, Appellant, v.Luis SPENCER, Superintendent at MCI-Norfolk, Respondent, Appellee.

No. 08-2476.

United States Court of Appeals, First Circuit.

Heard June 1, 2009.

Decided September 22, 2009.

Victoria L. Nadel, for appellant.

Susanne G. Reardon, Assistant Attorney General, Martha Coakley, Attorney General, was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and EBEL,^* Circuit Judges.

EBEL, Circuit Judge.

Habeas PetitionerAlton Clarke appeals the district court's decision denying him relief, under 28 U.S.C. § 2254, from his Massachusetts convictions for kidnapping and rape.Clarke argues that 1) the Commonwealth unconstitutionally used the fact that he invoked his right to remain silent during a police interrogation against him at trial; and 2) Clarke's retrial, following two earlier trials on similar charges, violated double jeopardy.We reject these arguments and, having jurisdiction under 28 U.S.C. § 2253, we AFFIRM.

I.BACKGROUND

A.Factual background

Viewed in the light most favorable to the verdict, seeBrewer v. Marshall,119 F.3d 993, 995(1st Cir.1997), the evidence presented during Clarke's third trial established the following: At approximately 9:30 p.m. one night in March 1995, the victim was walking from her home in Roxbury, Massachusetts, to a nearby restaurant.A burgundy-colored car drove up onto the sidewalk, blocking the victim's path.A man, unknown to the victim at the time but later identified as Clarke, jumped out of the car, pointed a gun at the victim, and pushed her into the car.Clarke then drove to a home at 22 Skyview Lane, where he forced the victim into the home's basement at gunpoint.There, Clarke "raped her by first inserting the gun into her vagina, then inserting his penis into her vagina, and finally by inserting his penis into her mouth."Clarke v. Spencer,585 F.Supp.2d 196, 200(D.Mass.2008).

Several weeks later, the victim "recognized and identified Clarke as the man who raped her when, by chance, she ran into him at Boston City Hospital.After a chase by [the victim's] boyfriend and hospital security guards, Clarke was apprehended and taken into custody by Boston Police officers."Id.

At the time of his arrest, Clarke told police that he knew the woman who lived at 22 Skyview Lane, but that he had never taken another woman there and he had never seen the woman who was now accusing him of rape.At trial, however, Clarke testified instead that he met the victim at a club and she propositioned him, offering sex for money.According to Clarke, he accepted the offer, paid the woman half of their agreed-upon fee, and drove her to 22 Skyview Lane, where he knew the owner would not be at home.Clarke testified that, once they got to the house, he was unable to pay the rest of the agreed-upon fee and the woman, therefore, threatened to accuse Clarke of rape.

B.Procedural background

1.State proceedings

The Commonwealth tried Clarke three times.

a. First trial, occurring in January 1997

Massachusetts initially charged Clarke with five offenses: "assault and battery with a dangerous weapon, kidnapping, and three counts of aggravated rape, one count for each different form of penetration.Clarke's first trial ... resulted in a mistrial when the jury failed to reach a unanimous verdict."Id.

b. Second trial, occurring in August 1997

"Clarke was retried in August, 1997, on the same charges."Id.The jury convicted him of kidnapping and two counts of the lesser included offense of rape.Seeid. at 201.The jury acquitted Clarke of the aggravated portion of the rape charges, as well as the charge of assault and battery with a dangerous weapon and the third rape count.Seeid. at 201.On direct appeal, however, the Massachusetts Appeals Court reversed Clarke's three convictions and remanded his case for another trial, after concluding the Commonwealth had improperly used Clarke's post-Miranda silence against him at trial.SeeCommonwealth v. Clarke,48 Mass.App.Ct. 482, 722 N.E.2d 987, 992(2000), further review denied,431 Mass. 1103, 733 N.E.2d 124(Table)(2000).

c. Third trial, occurring in August 2001

Clarke's third trial, the one at issue here, occurred in August 2001.The Commonwealth, this time, tried Clarke only on two charges of rape and one count of kidnapping.SeeClarke,585 F.Supp.2d at 201.The third jury convicted Clarke of all three offenses, and the court sentenced Clarke to twelve years in prison.Seeid.According to Clarke, that sentence was later reduced to "eight to ten years."(Aplt. Br.at 4 n. 1.)

On direct appeal, the Massachusetts Appeals Court affirmed Clarke's convictions, Commonwealth v. Clarke, 799 N.E.2d 605(Table), 2003 WL 22881000(Mass.App.Ct.Dec.5, 2003)(unpublished), and the Massachusetts Supreme Judicial Court denied further review, Commonwealth v. Clarke,441 Mass. 1105, 806 N.E.2d 102(Table)(Mass.Mar. 31, 2004)(unpublished).

2.Federal habeas proceedings

In March 2006, Clarke filed his federal habeas petition pursuant to 28 U.S.C. § 2254.The district court denied relief, but granted Clarke a certificate of appealability ("COA"), see28 U.S.C. § 2253(c), on the claims he is currently pursuing on appeal.

II.DISCUSSION

A.Whether the Commonwealth used Clarke's invocation of his right to remain silent during a police interrogation against him at trial

1.Standard of review

Because the Massachusetts Appeals Court addressed and rejected the merits of this claim, seeClarke,2003 WL 22881000, at *1, a federal court"shall not" grant Clarke habeas relief on this basis unless the state appellate court's

adjudication of the claim—

(1) 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

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).This court reviews the district court's decision to deny § 2254 relief de novo.SeeJohn v. Russo,561 F.3d 88, 91(1st Cir.2009).

2.Merits

The Government may not use at trial the fact that a defendant, after receiving Miranda¹ warnings, invoked his right to remain silent.SeeAnderson v. Charles,447 U.S. 404, 407-08, 100 S.Ct. 2180, 65 L.Ed.2d 222(1980);Doyle v. Ohio,426 U.S. 610, 611, 96 S.Ct. 2240, 49 L.Ed.2d 91(1976);Miranda,384 U.S. at 468 n. 37, 86 S.Ct. 1602.A defendant can, however, knowingly and voluntarily waive his right to remain silent, seeMiranda,384 U.S. at 444, 86 S.Ct. 1602, by, for example, voluntarily answering questions after receiving Miranda warnings.SeeCharles,447 U.S. at 408, 100 S.Ct. 2180;cf.Montejo v. Louisiana,___ U.S. ___, 129 S.Ct. 2079, 2085, 173 L.Ed.2d 955(2009)(addressing waiver of Fifth Amendment right to counsel after Miranda warnings).But such waiver "is not an all-or-nothing proposition."United States v. Andújar-Basco,488 F.3d 549, 555(1st Cir.2007).A suspect may invoke his right to remain silent in any manner at any time before or during interrogation.SeeMiranda,384 U.S. at 444-45, 473-74, 86 S.Ct. 1602.The First Circuit has further concluded that "the words the defendant uses to assert the privilege are themselves protected by it."Andújar-Basco,488 F.3d at 557.

Clarke contends that at trial the Commonwealth, in three ways, improperly used at trial the fact that he invoked his right to remain silent during an interrogation.

a. Detective Gavin's testimony

Clarke first argues that the Commonwealth improperly used his post-Miranda silence during its direct examination of Detective Donna Gavin.Gavin testified that when she interviewed Clarke, following his arrest, Clarke told her that he had never seen the victim before and that he had never brought any female guest to 22 Skyview Lane.Gavin asked Clarke how it was, then, that the victim could describe the home located at 22 Skyview Lane.But, before Gavin could explain to the jury Clarke's answer to that question, the court sustained defense counsel's objection because it was in response to that question that Clarke invoked his right to remain silent.Gavin then testified simply that the interview had ended shortly thereafter.

The Massachusetts Appeals Court rejected Clarke's claim that Detective Gavin's direct testimony amounted to improper use of his invoking his right to remain silent at the post-arrest interview because the trial court sustained the objection and Gavin never answered the question.SeeClarke,2003 WL 22881000, at *1.That determination was not contrary to, nor an unreasonable application of, clearly established Supreme Court precedent.SeeGreer v. Miller,483 U.S. 756, 763-65, 107 S.Ct. 3102, 97 L.Ed.2d 618(1987).

b. Cross-examination of Clarke

Clarke next argues that the prosecutor improperly used Clarke's post-Miranda silence while cross-examining him.On direct examination, Clarke testified, contrary to Detective Gavin, that he told the detective that he had once brought a prostitute to 22 Skyview Lane and that when he could not pay her, she threatened to accuse him of rape.During cross-examination, the following exchange occurred:

Q.It's your testimony ____

A.It's my testimony today before the jurors that I did told [Detective Gavin] I brought someone, a guest, a prostitute, at 22 Skyview Lane.

Q.Sir, isn't it true that you told Detective Gavin that you never brought anyone to Skyview Lane, right sir?

A.Totally impossible.

Q.And sir, when she asked you, she asked you, didn't she, sir, how the woman would know the inside and outside of that house, right?

[Defense Counsel]: Objection

THE COURT: Sustained.

[Prosecutor]: Your Honor, may I be heard at sidebar?

THE COURT: No, you may not.Sustained.Move on, let's go.

[Prosecutor]: Your Honor, may I be heard at side bar?

THE COURT: No, you may not.

Q.You were asked about the...