Kibbe v. Dubois
| Decision Date | 26 September 2000 |
| Docket Number | No. Civ.A. 97-10010-NG.,Civ.A. 97-10010-NG. |
| Citation | 120 F.Supp.2d 114 |
| Parties | Mark A. KIBBE, Petitioner, v. Larry E. DUBOIS and Scott Harshbarger, Respondents. |
| Court | U.S. District Court — District of Massachusetts |
Brownlow M. Speer, Committee For Public Counsel Services, Boston, MA, for Mark A. Kibbe, petitioner.
Pamela L. Hunt, Attorney General's Office, Criminal Bureau, Boston, MA, Annette C. Benedetto, Assistant Attorney General, Criminal Bureau, Boston, MA, for Larry E. DuBois, Respondent, as he is Commissioner of Correction of the Commonwealth of Massachusetts, Scott Harshbarger, Respondent, as he is Attorney General of the Commonwealth of Massachusetts.
Petitioner Mark A. Kibbe ("Kibbe") comes before this Court in an action for the writ of habeas corpus. Kibbe was convicted of arson by a Massachusetts Superior Court jury on June 10, 1992. The state court sentenced him to a prison term of five to ten years to begin after Kibbe completes a twenty-year sentence which he is currently serving on unrelated charges.
The Appeals Court of Massachusetts summarily affirmed Kibbe's conviction in March 1995. Commonwealth v. Kibbe, 38 Mass.App.Ct. 1111, 646 N.E.2d 1097 (Mass.App.Ct.1995) (mem.). On April 25, 1995, the Supreme Judicial Court of Massachusetts denied Kibbe's request for further review.1 Commonwealth v. Kibbe, 420 Mass. 1102, 648 N.E.2d 1286 (Mass. 1995). Petitioner's state court remedies have been exhausted as required by 28 U.S.C. § 2254(b).
Presently, Kibbe asserts that his constitutional right to due process was violated as a result of several errors made by the prosecutor during the trial of his case. The prosecutor, Kibbe claims, erred when he referred to Kibbe's post-Miranda silence during cross-examination and closing arguments in violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Kibbe also claims the prosecutor erred by shifting the burden of proof during closing argument. I agree that the prosecutor erred, and that these errors rise to the level of constitutional violation. Furthermore, I agree that the Doyle errors are not harmless within the meaning of the relevant case law. I therefore GRANT the writ of habeas corpus.
A fire broke out in an abandoned house at 171 Almira Road in Springfield, Massachusetts, shortly after 11:00 p.m. on November 19, 1991. A neighbor reported the fire and waited outside his home for the fire trucks to arrive. From that vantage point, the neighbor observed a person wearing a bright red or orange jacket walk from the back of the yard at 171 Almira Road, and down the driveway toward the edge of the road. This person stood for a moment, until the sirens became audible in the distance. The person then turned and walked back up the driveway toward the backyard of 171 Almira Road.
Within minutes a police cruiser, with Officers Witkowski and Rooke inside, arrived at the scene and spoke to the neighbor who had reported the fire. When Officer Witkowski entered the backyard of the burning house, he saw Kibbe in the rear corner of the yard wearing a red jacket. Officer Witkowski identified himself as a police officer and requested that Kibbe talk with him.2 At that point, Kibbe ran.
Kibbe was apprehended in the woods, after he had stumbled and fell. The officers recovered a flashlight, gloves, and a small propane tank. They observed soot on Kibbe's clothes and face, and noted he smelled of smoke, but not tobacco smoke. They gave him Miranda warnings and asked him to return to their cruiser at the scene of the fire. There, Kibbe was placed under arrest and subjected to a pat-down search. At the officers' direction, Kibbe removed matches, paper towels, a pipe, and pipe tobacco from his pockets.3
The officers asked Kibbe several questions concerning his reasons for being in the area of the abandoned house.4 Officer Witkowski testified in relevant part:
[Counsel] And at that point you had a conversation
with [Kibbe]; is that correct
[Witkowski] A brief conversation
[Counsel] Regarding that incident? Regarding
the incident; is that correct
[Witkowski] Regarding his reason for being in the
area, yes
[Counsel] And he answered your questions
[Witkowski] Yes, sir.
[Counsel] And he told you why he was in the
area?
* * *
[Witkowski] Yes, sir.
Respondent's Supplemental Answer, Exhibit No. 5, at 20-21 [hereinafter "Trial Trans."].
Kibbe's response to Witkowski concerning why he was near the abandoned house was entirely consistent with the account he related at trial: He lived nearby and was walking around the neighborhood to smoke his pipe, since smoking in his home was not allowed. While walking in the nearby woods, he found shopping bags, a flashlight, and a propane cylinder tank. He put the latter two items into the shopping bag and took them with him. Kibbe maintained that he entered the backyard of the abandoned house to urinate when he noticed smoke coming from a window. Not knowing what to do, Kibbe walked up the driveway toward the street but then heard sirens and returned to the back yard.
Kibbe also testified as to why he had run from the police: an area about which Witkowski had not questioned him. Kibbe testified that when the police arrived he became frightened and ran because he was on parole. When the police officers caught up with Kibbe and brought him back to their patrol car, Kibbe did not hesitate to answer the questions asked of him. All questions concerned why Kibbe had been in the area of the fire. On direct examination by defense counsel, Kibbe summarized the interrogation as follows:
[Counsel] And after he brought you back to the
car what did you do?
[Kibbe] They questioned me as to what I was
doing. I answered them over and over
again.
* * *
[Counsel] All right. When they were questioning
you what did you tell them?
* * *
[Kibbe] I told them what had happened.
[Counsel] All right. And did you do anything
physically.
[Kibbe] Not to my memory except to pull the
stuff out of my pockets.
[Counsel] Okay. So you explained to them what
happened; is that correct?
[Kibbe] Yes.
On cross-examination, the state prosecutor inquired further:
[Prosecutor] You didn't tell the police you ran because
you were on parole, right?
[Kibbe] No, I did not.
[Prosecutor] You never told them why you ran?
[Kibbe] I don't believe I did.
Defense counsel did not object to these questions.5 These were the last questions Kibbe answered while on the witness stand.
In closing argument to the jury, the state prosecutor made the following remarks:
The fire is caught in its incipient stage, right at the beginning. And who is there right at the beginning? Mark Kibbe was, nobody else was in the area. And he tells you that he is there before the smoke is even seen. And he runs. And he tells you he runs because he is on parole, but you know he didn't tell the police that, didn't offer that as an explanation for what he was doing.
In a case where you're the finders of facts, you have to decide credibility ... You must decide whether you believe what Mark Kibbe said. Whether it had a ring of truth or whether it didn't. If you don't believe what Mark Kibbe said, Mark Kibbe is guilty ...
There's a reasonable inference ... of guilt of consciousness, guilt from his flight. The explanation that he offered to you is not worthy of believing. This is a fanciful explanation, not one that comports with your idea of common sense. I urge you to look closely at the dice. I urge you to decide credibility and having decided that, you'll know what the facts are and the facts are that Mark Kibbe is guilty of setting this fire ... The only doubts in this case are doubts that are whimsical and fanciful and speculation. They are not reasonable. It is not a reasonable story. It is the one arrived at after the facts to mislead you ... Listen to the law from the judge and take the common sense that you have as everyday citizens, as jurors, and apply it to the facts and tell us where the truth lies.
Trial Trans. at 117-18 (emphasis added).
Defense counsel objected to the closing remarks, "If you don't believe what Mark Kibbe said, Mark Kibbe is guilty." Counsel did not ask for a curative instruction, nor did counsel specifically object to the remarks regarding Kibbe's post-arrest silence.
Kibbe claims that the state prosecutor's cross-examination and closing argument violated his Fourteenth Amendment right to due process under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The prosecutor referred to Kibbe's failure to disclose to the police his reason for fleeing after Kibbe had received Miranda warnings. The Appeals Court of Massachusetts rejected the argument that a Doyle violation had occurred. Respondent's Supplemental Answer, Exhibit No. 3, at 2 (Memorandum and Order Under Rule 1:28) [hereinafter "Appeals Court Op."]. The Supreme Judicial Court of Massachusetts denied Kibbe's Application for Further Appellate Review without discussion. Commonwealth v. Kibbe, 420 Mass. 1102, 648 N.E.2d 1286 (Mass.1995).
I conclude that the decision of the Appeals Court in Commonwealth v. Kibbe erroneously and unreasonably found no Doyle violation. The Kibbe decision is both contrary to, and involves an unreasonable application of, clearly established federal law. Furthermore, after...
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