Clements v. Clarke
| Decision Date | 31 March 2009 |
| Docket Number | Civil Action No. 03-10377-GAO. |
| Citation | 635 F.Supp.2d 26 |
| Parties | Jason CLEMENTS, Petitioner, v. Howard W. CLARKE, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
O'TOOLE, District Judge.
The petitioner, Jason Clements, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Clements and his co-defendant, Kenneth Mattox, were tried jointly in the Massachusetts Superior Court on multiple charges arising from the fatal shooting of one Gregory Tillery on January 30, 1995, in Dorchester, Massachusetts. The jury convicted Clements of murder in the second degree as a joint venturer and armed assault with intent to murder as a principal, as well as unlicensed possession of a firearm. Mattox, Clements' alleged joint venturer, was acquitted by the jury of all charges. The prior history and facts of the case are amply set out in prior reported decisions. See Clements v. Maloney, 485 F.3d 158 (1st Cir.2007) (Clements IV); Clements v. Maloney, 359 F.Supp.2d 2 (D.Mass.2005) (Clements III); Commonwealth v. Clements, 436 Mass. 190, 763 N.E.2d 55 (2002) (Clements II); Commonwealth v. Clements, 51 Mass.App.Ct. 508, 747 N.E.2d 682 (2001) (Clements I).
The petition presents two claims, each arising under the Sixth Amendment to the United States Constitution as it is made applicable to the States by the Fourteenth Amendment: first, whether the admission of a witness's grand jury testimony identifying Clements as a shooter violated his rights under the Confrontation Clause, and second, whether the trial judge's interactions with the deliberating jury violated the guaranty of a fair trial before an impartial jury. In each case, the parties dispute not only the ultimate merits of the claim, but also the applicable standard for habeas review.
A central witness at Clements' trial was Sakoya Willis, who was a friend of the victim, Tillery, and who was acquainted with Clements. In his trial testimony before the jury, Willis testified that he was not able to identify the person who shot Tillery. He further testified that he had never known who the shooter was. Clements II, 763 N.E.2d at 57. The prosecution, which had called him as a witness, then impeached him with his own prior statements that were inconsistent with his professed inability to identify the shooter. Willis acknowledged that prior to trial he had identified Clements from a photo array as the assailant and that he had given a recorded statement to the police to that effect. Id. He also acknowledged that he had identified Clements as the shooter in his testimony before the grand jury. Id. He offered several explanations for his previous statements identifying Clements, but he maintained before the jury that he did not know who the shooter was. See id. After Willis completed his testimony and with the court's approval, the prosecution read into evidence excerpts from Willis's grand jury testimony in which he identified Clements as the person who shot Tillery. Id.
The grand jury testimony was admitted pursuant to a state evidentiary rule of admissibility announced in Commonwealth v. Daye, 393 Mass. 55, 469 N.E.2d 483 (1984). In Daye, the Massachusetts Supreme Judicial Court ("SJC") held that a witness's prior inconsistent statement may be admitted as substantive evidence if (i) the declarant—witness is subject to cross-examination at trial concerning the prior statement, (ii) the prior statement had not been coerced, and (iii) the statement was more than merely a perfunctory assent to a leading question but was actually the witness's own statement. See Clements II, 763 N.E.2d at 57-58; Daye, 469 N.E.2d 483, 495-96.
In his argument on the merits of the petition, Clements asserts that his right to confront witnesses against him was violated because Willis's grand jury testimony was formally admitted and read to the jury after Willis had completed his trial testimony. He contends that this sequencing of the evidence denied him the opportunity to cross-examine Willis about the grand jury testimony.1 Before turning to the merits of this claim, I address the parties' disagreements as to whether this claim should be deemed procedurally defaulted and, if not, whether the SJC adjudicated the federal claim on merits within the meaning of 28 U.S.C. § 2254(d), so that the statutory standard of review applies.
The respondent argues that the petitioner is barred from obtaining habeas relief on the basis of his Confrontation Clause claim because it was rejected by the SJC on an independent and adequate state ground, namely, the enforcement of a state procedural rule requiring a contemporaneous objection to preserve an issue for appeal on the merits. See Coleman v. Thompson, 501 U.S. 722, 729-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
In considering whether the first criterion for admissibility under Daye was met— whether Willis was available for cross-examination regarding the prior testimony— the SJC explained:
It was clear from Willis's direct examination that his testimony before the grand jury was a subject of contention. A lengthy bench conference was held on the subject just prior to cross-examination. Indeed, defense counsel cross-examined Willis regarding his grand jury testimony and the judge ruled immediately after counsel's cross-examination of Willis, and before counsel's recross-examination, that the inconsistent portions of the grand jury testimony could be read to the jury by the prosecutor. Moreover, the defendant did not object on this basis until the following day and he did not seek to recall Willis at any time.
Clements II, 763 N.E.2d at 59 (emphasis in original). The respondent argues that by noting the defendant's late objection, the SJC invoked Massachusetts's contemporaneous objection rule as an alternative independent basis for its decision, and therefore the petitioner's claim is procedurally defaulted. See Coleman, 501 U.S. at 734-35, 111 S.Ct. 2546; Burks v. Dubois, 55 F.3d 712, 716 (1st Cir.1995) ()
The parties also disagree about the proper standard of review. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1213, provides that when a claim has been "adjudicated on the merits" by a state court, a petition for a writ of habeas corpus based on that claim cannot be granted "unless the adjudication of the claim ..." by the state court either "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 in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). However, if the state court did not decide the federal constitutional claim but instead adjudicated the claim only on state law grounds, the claim has not been "adjudicated on the merits" within the meaning of § 2254 and a habeas court may undertake a de novo review. See DiBenedetto v. Hall, 272 F.3d 1, 6-7 (1st Cir.2001); Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.2001).
As to both issues—whether the grand jury testimony claim was procedurally defaulted and whether the SJC adjudicated it on the merits within the meaning of § 2254(d)—the arguments of both parties ignore the important point that the SJC did not explicitly address the petitioner's Confrontation Clause claim at all. See Clements II, 763 N.E.2d at 58-59. The SJC's discussion was focused entirely on the state law claim that the grand jury testimony did not qualify for admission under Daye's admissibility requirements (availability for cross-examination, lack of coercion, and more than a mere confirmation or denial) and sufficiency requirement (if the prior testimony concerns an essential element of the crime, there must be other corroborating evidence to support a conviction). See id. at 57-59; see also Clements III, 359 F.Supp.2d at 9 ().
Because the SJC did not consider Clements' Confrontation Clause claim, the SJC's statement, made in the course of rejecting the separate state law argument, that Clements had failed to make a timely objection to the admission of the grand jury testimony clearly did not result in the procedural default of the federal claim. It also follows from the fact that, because the SJC did not address the federal claim, that federal claim was not "adjudicated on the merits" within the meaning of § 2254(d), even though it has been deemed exhausted for habeas purposes. Accordingly, the standard of review in § 2254(d) is inapplicable, and the claim is now subject to review de novo. See Fortini, 257 F.3d at 47.
Clements' argument under the Confrontation Clause is that the admission of Willis's prior grand jury testimony was improper because the conditions for admission of such testimony set out in California v. Green, 399 U.S. 149, 90 S.Ct. 1930 26 L.Ed.2d 489 (1970) were not satisfied.2 In particular, he argues that Willis was not available for...
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Clements v. Clarke
...a guilty verdict as a result of a series of voir dire examinations of individual deliberating jurors. See Clements v. Clarke, 635 F.Supp.2d 26 (D.Mass.2009) (Clements V). The Commonwealth now appeals. We conclude that the district court employed an insufficiently deferential standard of rev......
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