O'Laughlin v. O'Brien

Filing 920090610

Opinion

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var WPFootnote1 = '  Of the Tenth Circuit, sitting by designation.\
'

var WPFootnote2 = 'The SJC indicated a "difficult" marital situation: "Both the\
victim and her husband characterized their relationship as friendly\
but strained. (Other witnesses described the husband\'s attitude as\
alternating between loving and angry.)" Approximately a week\
before the attack, she conversed for the first time with her\
husband about the possibility of getting a divorce. Mrs. Kotowski\
testified that Mr. Kotowski was "crushed" by the move.\
'

var WPFootnote3 = 'O\'Laughlin had been inside Mrs. Kotowski\'s apartment at least\
once previously in September to fix a window, among other tasks.\
'

var WPFootnote4 = 'In addition, the SJC states that just days before the attack,\
one acquaintance testified that O\'Laughlin had "really scared" Mrs.\
Kotowski by inquiring "about the window in her apartment." \
However, once Mrs. Kotowski realized he was on the maintenance\
staff, she simply walked away.\
'

var WPFootnote5 = 'O\'Leary refused to drive unless O\'Laughlin provided him with an\
advance payment.\
'

var WPFootnote6 = 'O\'Laughlin\'s supervisor testified that the complex had been\
having problems with raccoons getting caught in the dumpster.\
'

var WPFootnote7 = 'Although he heard these sounds, Whittemore did not contact the\
police again that night.\
'

var WPFootnote8 = 'O\'Laughlin\'s co-worker testified that O\'Laughlin went back to\
the apartment complex and told him the person O\'Laughlin was\
supposed to meet was not there. After discussing the matter\
further, O\'Laughlin decided to go back to the police station\
accompanied by his co-worker.\
'

var WPFootnote9 = 'Chemists also collected swabs from two small, red-brown stains\
in the apartment that tested positive for the presumptive presence\
of blood, and cuttings of what appeared to be blood from\
O\'Laughlin\'s bed comforter. O\'Laughlin handed over to the police\
the clothes he said he wore the previous night and permitted the\
chemist to examine his boots.\
'

var WPFootnote10 = 'At booking, O\'Laughlin remarked during his photograph that the\
mark on his face was a pimple. Trooper Michael Hill thought it was\
a blemish or an injury.\
'

var WPFootnote11 = 'Twelve of these prints were identifiable and excluded\
O\'Laughlin; two were unidentifiable; and one was identifiable, but\
police could not match it to any known prints.\
'

var WPFootnote12 = 'Because of the contamination, only the following samples were\
deemed adequate for further testing: blood on Mrs. Kotowski\'s\
bathroom floor; a stain on the wall behind O\'Laughlin\'s dresser;\
and two cuttings from O\'Laughlin\'s comforter. Of these samples, it\
was concluded that all of the blood found in O\'Laughlin\'s apartment\
belonged to him, and O\'Laughlin was excluded as a possible\
contributor to the sample of blood taken from Mrs. Kotowski\'s\
bathroom.\
'

var WPFootnote13 = 'The SJC stated that O\'Laughlin lied to the police when he told\
them that he was awakened by the screaming, but his telephone\
records show that he was making phone calls until twenty minutes\
before the police arrived on the scene. He later told the police\
that the police cruisers woke him up. Also, he told the police in\
an another interview that he went to bed at 11:30 p.m., awoke to\
screaming that he believed were animals fighting, went back to\
sleep and awoke to his neighbor\'s knock on his door who was there\
to inform O\'Laughlin that Mrs. Kotowski was severely beaten. Id.\
at 627-28.\
'

var WPFootnote14 = 'The SJC noted O\'Laughlin\'s third-party culprit evidence in a\
footnote:\
\
              The defense sought to portray the victim\'s husband, from\
whom she had recently separated, as the third-party\
culprit. The husband was aware of the wife\'s new address\
and that she was involved with another man. The victim\
described the husband as being "upset" but not angry\
about this relationship. Others said the husband\
alternated between being "nice" and verbally abusive. The\
husband testified that he was at home at the time of the\
assault and that he received two telephone calls just\
before 6 a.m. Each time his "caller ID" indicated the\
source of the call as the victim\'s apartment, but no one\
was on the line. He dialed the number, and a man\
answered. One witness thought he saw the husband\'s car\
in his workplace parking lot at approximately 6 a.m. on\
the morning of the attack, but a neighbor saw the\
husband\'s car parked at home at 6:20 a.m. The husband\
was generally cooperative with the police, but did not\
permit the police access to "personal" letters to his\
wife. Tests indicated the presumptive presence of blood\
on one of the husband\'s forearms on the day of the\
attack. On the evening of November 17, the police\
observed garbage bags on the floor of the husband\'s\
garage and dark clothing in a clothes dryer. Two wet\
towels strongly smelling of bleach were found in a\
plastic bag in the trunk of the husband\'s car. One of\
the towels was the same as towels found in the victim\'s\
linen closet. The husband explained that the towels\
smelled because he did not know how to do laundry and had\
used too much bleach on them. He said he brought them on\
a hunting trip the previous weekend and had forgotten\
them in the trunk. Finally, the husband kept wooden\
baseball bats and other athletic equipment in his garage.\
\
Id. at 630 n.14.\
'

var WPFootnote15 = 'Although an analysis under § 2254(d)(1) is appropriate in the\
present case, we say "generally" because we need not conclude that\
we must "evaluate a state court\'s resolution of a Jackson\
sufficiency-of-the-evidence claim in all cases under § 2254(d)(1)\
rather than § 2254(d)(2)." Sarausad v. Porter, 479 F.3d 671, 678\
(9th Cir. 2007) (emphasis added), rev\'d on other grounds sub nom. \
Waddington v. Sarausad, 129 S. Ct. 823 (2009); cf. id. at 695\
(Reinhardt, J., concurring in part and dissenting in part) ("I see\
nothing in law or logic preventing us from evaluating Jackson\
claims under § 2254(d)(2), which authorizes us to grant habeas\
relief when the state court decision we are reviewing is \'based on\
an unreasonable determination of the facts in light of the evidence\
presented in the State court proceeding.\'" (quoting § 2254(d)(2)).\
'

var WPFootnote16 = 'We also note "that a state-court adjudication of an issue framed\
in terms of state law may receive section 2254(d)(1) deference so\
long as the state standard is at least as protective of the\
defendant\'s rights as its federal counterpart." Leftwich v.\
Maloney, 532 F.3d 20, 23-24 (1st Cir. 2008); see also White v.\
Coplan, 399 F.3d 18, 23 (1st Cir. 2005) (explaining that a federal\
habeas court may "infer that the federal claim was considered if\
the state court rejects a counterpart state claim and then cites to\
a case holding that the federal constitution provides no greater\
protection"). Even though the SJC did not cite Jackson, we have no\
qualms with its analysis in this respect. The SJC relied on\
Massachusetts case law that has expressly adopted the federal\
constitutional standard in Jackson. See Commonwealth v. Latimore,\
393 N.E.2d 370, 375 (Mass. 1979); see also Leftwich, 532 F.3d at 24\
("Because the Latimore court adopted the governing federal\
constitutional standard as the Massachusetts standard for\
sufficiency of the evidence challenges, . . . we can securely\
reason that in scouring the record for Latimore error and finding\
none the SJC effectively answered the federal constitutional\
question.") (citations omitted).\
'

var WPFootnote17 = 'For example, in Hurtado, we explained:\
\
              [A]s a general rule, federal courts should be\
particularly cautious about issuing habeas, on grounds of\
the objective unreasonableness of a state court\'s\
conclusion that the evidence is sufficient, where there\
has been a verdict of guilt by a jury of a defendant\'s\
peers, where the defendant\'s credibility was evaluated by\
the jury hearing his testimony, where that verdict has\
been affirmed on appeal in the state system, and where\
there is no claim of constitutional error in the conduct\
of the trial. Even on direct appeal, claims that the\
evidence was insufficient to support the verdict are\
"often made, but rarely successful."\
\
245 F.3d at 19-20 (quoting United States v. Moran, 984 F.2d 1299,\
1300 (1st Cir. 1993)).\
'

var WPFootnote18 = 'Like the SJC, we acknowledge that to pass constitutional muster,\
direct evidence of identification is not necessary. \
"Identification can be inferred from all the facts and\
circumstances that are in evidence." Ayala, 289 F.3d at 25 \
(quotation marks and citations omitted).\
'

var WPFootnote19 = 'A reenactment demonstrated that the assailant would not have\
been able to make out that Whittemore was calling the police.\
'

var WPFootnote20 = 'This is not to say that each of us is convinced that the state\
court\'s decision is unreasonable in every respect. But this case\
comes to us on arguments as presented by the parties. This panel\
may not be in complete unanimity in all particulars, but we do\
agree that the petitioner has the better of the argument with\
respect to the means evidence introduced by the prosecution at\
trial.\
'

var WPFootnote21 = 'We compare infra the consciousness of guilt evidence in our case\
to that of Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005). In\
Juan H., the Ninth Circuit granted habeas relief to a petitioner in\
part because it viewed that any conclusion regarding the\
petitioner\'s guilt based on the prosecution\'s consciousness of\
guilt evidence amounted to no more than "bare conjecture." Id. at\
1277.\
'

var WPFootnote22 = 'This is not a case where the defendant stonewalled the police. \
He approached the police just minutes after the attack, he\
submitted to a ten-minute interview with the Chief of Police, and\
ultimately allowed the police to search his apartment.\
'

var WPFootnote23 = 'These include:\
\
              (1) The focus of the inquiry is on the state court\
decision; \
              (2) Even with the deference due by statute to the state\
court\'s determinations, the federal habeas court must\
itself look to "the totality of the evidence" in\
evaluating the state court\'s decision; \
              (3) The failure of the state court to consider at all a\
key argument of the defendant may indicate that its\
conclusion is objectively unreasonable; however, the\
paucity of reasoning employed by the state court does not\
itself establish that its result is objectively\
unreasonable; \
              (4) The failure of a state court to give appropriate\
weight to all of the evidence may mean that its\
conclusion is objectively unreasonable; and \
              (5) The absence of cases of conviction precisely parallel\
on their facts does not, by itself, establish objective\
unreasonableness.\
\
Hurtado, 245 F.3d at 18.\
'

var WPFootnote24 = 'With respect to the murder weapon, the Newman court acknowledged\
that "the prosecution offered ample evidence to support an\
inference that [the petitioner] had previously possessed at least\
one of the murder weapons." Id. at 795. However, it noted that\
"the prosecution did not offer any evidence that [the petitioner]\
had used or possessed the weapons on the day of the murder," any\
"eyewitness testimony," any "latent fingerprints from the crime\
scene or the items in the gym bag" in which the alleged murder\
weapon was found. Id.\
'

var WPFootnote25 = 'Even if, in Newman, the petitioner\'s motive was anger because\
the victim had made a pass at the petitioner\'s girlfriend, the\
victim\'s gunshot wound is not inconsistent with this motive.\
'

var WPFootnote26 = 'As we stated above, here the SJC viewed its consciousness of\
guilt evidence to be most probative of O\'Laughlin\'s guilt.\
'

var WPFootnote27 = 'As explained above, O\'Laughlin\'s interactions with the police\
immediately after the assault and the day after, while not\
irrelevant, did not constitute sufficient evidence for a rational\
jury, even combined with the other circumstantial evidence, to\
conclude he was the assailant. Again, it may have been permissible\
for the jury to find that O\'Laughlin possessed consciousness of\
guilt of some crime, such as drug possession, for which the\
evidence showed there was some basis, but not of a vicious attack\
on a neighbor with whom he had very little prior contact.\
'

var WPFootnote28 = 'O\'Laughlin also claims that the SJC, in concluding that the\
trial judge properly excluded a note O\'Laughlin alleged to have\
supported his third-party culprit defense, violated his\
constitutional right to present a defense. In view of our holding\
regarding O\'Laughlin\'s Jackson claim, we need not reach this issue.\
'

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