Kibbe v. Dubois

• Decision Date: 06 June 2001
• Docket Number: No. 00-2440,00-2440
• Citation: 269 F.3d 26
• Parties: (1st Cir. 2001) MARK A. KIBBE, Petitioner, Appellee, v. LARRY E. DUBOIS, ET AL., Respondents, Appellants. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 26

269 F.3d 26 (1st Cir. 2001)

MARK A. KIBBE, Petitioner, Appellee, v. LARRY E. DUBOIS, ET AL., Respondents, Appellants.

No. 00-2440

United States Court of Appeals For the First Circuit

Heard June 6, 2001

Decided October 23, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

[Copyrighted Material Omitted] Annette C. Benedetto, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellants.

Brownlow M. Speer, on brief, for appellee.

Before Torruella, Circuit Judge, Cyr, Senior Circuit Judge, and Lynch, Circuit Judge.

TORRUELLA, Circuit Judge.

Appellee Mark A. Kibbe ("Kibbe") was charged with arson of a dwelling house in Hampden County court in Massachusetts. He was tried before a jury on June 9 and 10, 1992, and found guilty of the lesser included offense of arson of a building. After exhausting state court remedies, Kibbe petitioned for the writ of habeas corpus. The district court granted Kibbe's petition, ruling that the prosecutor's reference to Kibbe's post-Miranda silence during cross examination and closing arguments was unconstitutional. Because we conclude that Kibbe has not satisfied his burden under the exacting standards of 28 U.S.C. § 2254(d) as amended by the Antiterrorism and Effective Death Penalty Act of 1996, we reverse the district court's decision to grant Mark Kibbe's petition for the writ of habeas corpus.

BACKGROUND

A. Facts Elicited from the Trial Testimony

On November 15, 1991, at approximately 11:15 in the evening, Paul Martin walked outside of his parents' house and saw that the unoccupied house at 171 Almira Road was heavily engulfed in smoke. He also heard crackling noises consistent with a fire. Martin returned to his parents' house, told his mother to call "911," and returned to the street. From this vantage point, Martin observed a man who was wearing what appeared to be a down, either red or orange, brightly-colored jacket. The unidentified man walked from the backyard of 171 Almira down the driveway to the edge of the road. When the sound of sirens was audible, the man walked back up the driveway in the direction from which he had come.

Within a few minutes, Detective Albert Witkowski and Officer Eugene Rooke, both members of the Springfield police department, arrived at the scene. They spoke with Martin, who told them that he had observed a man come from the backyard. Witkowski went to the backyard to investigate, where he saw a person in the rear corner of the yard wearing a red jacket and holding an object in his hand. Witkowski testified at trial that he identified himself as a police officer and asked the man if he could talk with him for a moment. In response, the man, later identified as Kibbe, ran. Witkowski gave chase and radioed for assistance. Officer Rooke, who had continued to interview Martin, responded to Witkowski's request and joined the chase. Rooke ran down Newfield Street, ordering Kibbe to stop, which allegedly only hastened his flight. The chase continued, terminating only after Kibbe fell in the wooded area in which he was running. Kibbe was wearing a red, heavy winter jacket and black gloves. He also had black soot marks on his nose and smelled of smoke. The officers recovered a flashlight and a small propane tank that Kibbe had dropped during his flight.

The officers advised Kibbe of his Miranda rights and asked him to return to the police cruiser. There, they placed him under arrest and told him that they would conduct a pat-down search on him for weapons. Hearing this, Kibbe voluntarily removed matches, paper towels, a pipe, and pipe tobacco from his pockets. The officers then had a brief conversation with Kibbe. Witkowski testified that Kibbe answered his questions and told him why he was in the area.

At trial, Kibbe took the stand and offered the following testimony. On the night in question, he attended an Alcoholics Anonymous meeting until approximately 9:00 p.m., and then took a bus home. Once he arrived at home, he immediately went out again to smoke his pipe, because he was not allowed to do so in the house. He walked all around the neighborhood and found a flashlight and propane tank in the woods. He then went into the backyard of 171 Almira Road because he needed to urinate. There, he noticed smoke coming from the back of the house. After several minutes, he walked to the front of the house and, upon hearing a siren, he turned around and walked into the backyard. He then "got scared" and ran away, allegedly because he was on parole. After he was apprehended by Rooke, Kibbe testified that the officers "questioned me as to what I was doing," and that he "answered them over and over again."

Kenneth Friberg, the arson investigator who was at the scene, also testified. Once the fire was extinguished and the smoke had cleared, Friberg entered the cellar at 171 Almira to determine the cause of the fire. There, he found an empty matchbook on top of a pile of lumber about twenty feet from the cellar door. There was also some paper and rubbish in the cellar. He could not identify what kind of paper it was due to its charred and sodden state. From these and other observations, Friberg concluded that the fire had been deliberately set by an open fire without the use of accelerants. He found paper towels just outside and to the left of the cellar door.¹

B. Relevant Excerpts from the Trial Transcript

As noted above, Kibbe took the stand in his own defense, offering an explanation for his presence at 171 Almira Road, his flight from the police, and his possession of the matches, paper towels, flashlight, and propane tank. On direct examination by his attorney, the following exchanges occurred:

Q. And now, why did you run?

A. I'm on parole.

***

Q. And after [Rooke] brought you back to the car what did you do?

A. They questioned me as to what I was doing. I answered them over and over again. . . .

Q. All right. When they were questioning you what did you tell them?²

A. I told them what had happened.

During cross-examination, the Commonwealth asked Kibbe:

Q. You didn't tell the police that you ran because you were on parole, right?

A. No, I did not.

Q. You never told them why you ran?

A. I don't believe I did.

Both Kibbe and the Commonwealth commented at trial on Kibbe's forthrightness, or lack thereof, in his conversation with the police on the night of the fire. In his opening statement Kibbe's attorney said:

[Kibbe] was stopped a short distance away, spoke to the police. They spoke to him and he explained what he was doing and what the situation was on that evening.

In closing, Kibbe's attorney reinforced this point:

What about Mr. Kibbe? Mr. Kibbe told the police what he was up to that night. He didn't have to, but he did. He told you on the stand where he went that night. He didn't have to, but he did.

To counter, the Commonwealth said during closing argument:

And [Kibbe] 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 the facts, you have to decide credibility. 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, the 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.

***

It is not a reasonable story. It is the one arrived at after the facts to mislead you.

C. Procedural History

After Kibbe's jury trial and conviction, the case proceeded to the Appeals Court for the Commonwealth of Massachusetts. In a Memorandum and Order, the court affirmed Kibbe's conviction. Commonwealth v. Kibbe, 646 N.E.2d 1097 38 Mass. App. Ct. 1111, 646 N.E.2d 1097 (1995) (affirming judgment only), No. 93-P-1761 (Mar. 3, 1995) (mem. and order under Rule 1:28). Relying in large part on Anderson v. Charles, 447 U.S. 404 (1980), and Commonwealth v. McClary, 604 N.E.2d 706 (Mass. App. Ct. 1992), the court rejected Kibbe's argument that the Commonwealth's cross-examination and closing argument violated the rule established in Doyle v. Ohio, 426 U.S. 610, 617-19 (1976), prohibiting the use of post-Miranda silence to impeach a defendant. Kibbe, No. 93-P-1761 at 2.³ The Court ruled that since Kibbe had spoken to police about "all matters concerning the charge for which he was arrested," the Commonwealth was permitted to question Kibbe about any omissions in his story. Id. at 3. In support, the court quoted McClary: "if a defendant does not elect to remain silent but speaks to the police about matters concerning the crime for which he has been arrested, the prosecutor may ask the defendant about any omission from his post-Miranda statement which is at variance with his trial testimony." 604 N.E.2d at 710. The Massachusetts Supreme Judicial Court denied Kibbe's request for further review. Commonwealth v. Kibbe, 648 N.E.2d 1286 (Mass. 1995).

Kibbe next petitioned for a writ of habeas corpus in the federal district court of Massachusetts, which was granted in a Memorandum and Order on September 26, 2000. Kibbe v. Dubois, 120 F. Supp. 2d 114 (D. Mass. 2000). In analyzing Kibbe's alleged Doyle violation, the district court first found that the claim was subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), petitioner's case having been filed in January of 1997. Kibbe, 120 F. Supp. 2d at 118. As such, Kibbe's writ must be denied unless the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as...