Tracy v. Olson, CIV.A.01-12107-RGS.

• Decision Date: 30 November 2005
• Docket Number: No. CIV.A.01-12107-RGS.,CIV.A.01-12107-RGS.
• Citation: 400 F.Supp.2d 393
• Parties: Patrick TRACY v. Keith OLSON, et al.
• Court: U.S. District Court — District of Massachusetts

400 F.Supp.2d 393

Patrick TRACY v. Keith OLSON, et al.

No. CIV.A.01-12107-RGS.

United States District Court, D. Massachusetts.

November 30, 2005.

Patrick Tracy, White Deer, PA, pro se.

Maura D. McLaughlin, Office of Attorney General, Criminal Bureau, Appellate Division, Linda A. Wagner, Natalie S. Monroe, Attorney General's Office, Boston, MA, for Commonwealth of Mass, Respondent.

MEMORANDUM AND ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

STEARNS, District Judge.

After review, I will adopt Magistrate Judge Dein's Report and Recommendation.¹ That a defendant may be convicted of two statutory offenses arising out of the same criminal episode if each crime "requires proof of an additional fact that the other does not," is a long-established rule of law. Morey v. Commonwealth, 108 Mass. 433, 434 (1871).² Assault with intent to maim (second branch)³ requires proof of a specific intent to maim or disfigure, while assault with intent to murder requires proof of a specific intent to kill (among other separate and distinct elements). Thus, as the Magistrate Judge properly concluded, under the Blockburger test petitioner's dual convictions do not implicate the Double Jeopardy Clause. While I agree with the Magistrate Judge that the petitioner's mother's excited statement to police was not testimonial within the meaning of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),⁴ the issue is not open and shut. A split already exists among circuit and state courts that will require resolution by the Supreme Court. Compare United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004) with United States v. Saget, 377 F.3d 223, 228-229 (2nd Cir.2004). See also Washington v. Davis, 154 Wash.2d 291, 111 P.3d 844 (Wash.), cert. granted, ___ U.S. ___, 126 S.Ct. 547, ___ L.Ed.2d ___ (2005); Hammon v. Indiana, 829 N.E.2d 444 (Ind.), cert. granted, ___ U.S. ___, 126 S.Ct. 552, ___ L.Ed.2d ___ (2005). Nonetheless, because Crawford enunciates a new rule of criminal procedure (overruling in part Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)), it has no retroactive application to petitioner's case. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). Even in the unlikely event the Supreme Court should decide that one of the retroactivity exceptions set out in Lambrix v. Singletary, 520 U.S. 518, 539, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997), should apply in the Crawford context, I agree with the Magistrate Judge that the admission of the mother's statement was harmless error.

ORDER

For the foregoing reasons, the Magistrate Judge's Recommendation is ADOPTED and the petition is DISMISSED with prejudice.

SO ORDERED.

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

DEIN, United States Magistrate Judge.

I. INTRODUCTION

The Petitioner, Patrick Tracy ("Tracy"), has brought this Petition for a writ of habeas corpus challenging his state law convictions for armed assault with intent to murder, unlawfully carrying a firearm, and assault with intent to maim (the "Petition") (Docket # 3). Following a ruling on Respondent's Motion to Dismiss Petition as Unexhausted,⁵ there remain two claims which are ripe for review: whether Tracy's conviction for both assault with intent to murder and assault with intent to maim violates "the protection against double jeopardy" (Ground One), and whether the admission of statements made by Tracy's mother to the police, which were admitted by way of a police officer's testimony under the "excited utterance" exception to the hearsay rule, violated Tracy's Sixth Amendment rights. (Ground Three). For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the Petition for a writ of habeas corpus be DENIED.

II. STATEMENT OF FACTS⁶

The Underlying Facts

Tracy's convictions arise from an incident which occurred on March 1, 1991 at the White Dove Restaurant and Bar ("White Dove") in Dedham, Massachusetts. The facts are detailed more fully in the decision of the Massachusetts Appeals Court, Commonwealth v. Tracy, 50 Mass. App.Ct. 435, 737 N.E.2d 930 (2000), and will only be summarized herein. Briefly, at about 9:00 p.m., Tracy was at the White Dove when he got into a verbal, and then physical, altercation with the victim. Id. at 436, 737 N.E.2d at 932. He was taken into protective custody by the police. Id. While he was being taken away, Tracy threatened to come back and kill the victim. Id. Tracy was taken to the police station, booked and, at about 10:30 p.m., released into the custody of his mother. Id.

At 11:18 p.m., Tracy's mother returned to the police station and told an officer that "her son was in possession of a firearm" and that "he may return to the White Dove Restaurant" and "he might injure someone." Id., 737 N.E.2d at 932-33. Tracy objects to the admissibility of his mother's statements, which were admitted as "excited utterances."

Tracy had in fact returned to the White Dove at about 11:15 p.m. The Appeals Court described the incident as follows:

The victim saw the defendant entering the lounge with a coat over a gun. The defendant looked for the victim, saw him, and walked directly toward him and fired the gun twice. One of the bullets went through the victim's arm, causing a disabling injury. The defendant then walked up to the victim, stuck the gun into his back, said something, and pulled the trigger, shooting the victim in the side. The victim called the defendant a "motherf[]." The defendant shot him again. The victim again called him a "motherf[]," and the defendant shot him once more. That shot grazed the victim's skin. The defendant then left the White Dove.

Id. at 437, 737 N.E.2d at 933.

Tracy was arrested on May 18, 1991 in Maine after committing an armed robbery. Id. He was convicted on April 16, 1993 in the United States District Court in Maine for being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)). Id. at 440, 737 N.E.2d at 935. On October 29, 1993, Tracy was sentenced to 312 months on the federal conviction. Id. Meanwhile, on April 17, 1992, Tracy was indicted in connection with the White Dove incident for armed assault with intent to murder, assault and battery by means of a dangerous weapon, unlawfully carrying a firearm, and assault with intent to maim. Id. at 435-36, 737 N.E.2d at 932. He was brought back to Massachusetts for trial on June 28, 1994. Id. A jury trial was held beginning on December 11, 1996. Id. Tracy's defense was that he suffered from post-traumatic stress disorder (PTSD) caused by his active military service in Vietnam, and he presented the testimony of a psychiatrist and a psychologist who both opined that at the time of the shooting Tracy was mentally ill and that, as a result of that illness, he lacked the substantial capacity either to appreciate the wrongfulness of his act or to conform his behavior to the requirements of the law. Id. at 437, 737 N.E.2d at 933. The Commonwealth's expert testified to the contrary, and opined that Tracy did not suffer from any mental disease or defect. Id. On December 20, 1996, the jury convicted him on all counts of the indictment. Id.

Additional facts will be provided below where appropriate.

III. ANALYSIS

A. Standard of Review

The standard of review to be applied to Tracy's habeas corpus petition is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under this standard, a federal habeas court may not grant a writ of habeas corpus unless the underlying state court adjudication "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." 28 U.S.C. § 2254(d)(1). As the United States Supreme Court has explained:

A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts ... The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case.

Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). An "unreasonable application is different from an incorrect one." Id. In order to reach the level of "unreasonable," "some increment of incorrectness beyond error is required." McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir.2002) (en banc) (internal citation and quotation omitted). This increment "need not necessarily be great, but it must be great enough to make the decision unreasonable in the independent and objective judgment of the federal court." Id. Thus, a habeas petitioner "must do more than merely identify an incorrect result." Jackson v. Coalter, 337 F.3d 74, 81 (1st Cir.2003). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 1522, 146 L.Ed.2d 389 (2000). See also Horton v. Allen, 370 F.3d 75, 79-80 (1st Cir.2004).

B. Ground One — Double Jeopardy

Tracy claims as his first ground for habeas relief that his conviction for both assault with intent to murder and assault with intent to maim violates the Double Jeopardy Clause. "The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits successive prosecution or multiple punishment for the same offense.'" Witte v. United States, 515 U.S. 389, 391, 115 S.Ct. 2199, 2202, 132 L.Ed.2d 351 (1995). Thus, the "Double Jeopardy Clause ...