DeBurgo v. St. Amand

Filing 920091119

Opinion

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var WPFootnote1 = 'The Appeals Court explicitly adopted the Commonwealth\'s\
recitation of the facts put forth on direct appeal to that court. \
'

var WPFootnote2 = 'The trial included the following exchange between DeBurgo\'s\
attorney and a police officer:\
\
Q: With regard to the firearm in this case, you ever compare a\
firearm put into custody or ask it be compared with that from an\
arrestee named Junior Lopes, AKA Manuel Lopes?\
A: Sir, I am not even aware of anything to do with Junior Lopes or\
Manuel Lopes.\
Q: Let me show you this photograph. Do you recognize this\
photograph as Junior or Manuel Lopes?\
A: I\'ve never had any dealings with a Manuel or Junior Lopes. \
'

var WPFootnote3 = 'The quotations are taken from a memorandum to the Assistant\
District Attorney from a secretary in the DA\'s office who took the\
phone message from the concerned juror.\
'

var WPFootnote4 = 'The only significant variation between LC\'s testimony and\
KM\'s recounting of her telephone conversation with LC was that KM\
remembered that MM told LC about Lopes before the jury rendered its\
verdict, rather than during the post-verdict conversation in the\
bathroom.\
'

var WPFootnote5 = 'The court engaged in an extended colloquy with attorneys for\
both parties as to whether the court should advise MM of the\
potential for criminal liability if indeed she knew DeBurgo before\
trial and did not reveal that information at voir dire. The\
lawyers and judge were rightly concerned that she be made aware of\
her right not to answer the judge\'s questions given her potential\
criminal liability. However, they were also concerned that an\
overt warning from the court could cause the juror to become\
alarmed and therefore conceal important information she had\
intended to share with the court. The court\'s solution to this\
conundrum was to allow MM to read the transcript of LC\'s testimony\
and then offer MM access to counsel before testifying under oath. \
We note that it was defense counsel who originally suggested\
presenting MM with the transcript.\
'

var WPFootnote6 = 'DeBurgo argues on appeal that one of the nine remaining\
jurors, KR, testified that she heard MM say she knew DeBurgo. \
However, our review of KR\'s transcript shows that KR was confused\
as to whether she remembered MM saying she knew DeBurgo or his\
girlfriend. During the course of her testimony, KR eventually\
seemed to settle on the conclusion that MM had only spoken of\
knowing the girlfriend, not DeBurgo. At side bar, the judge and\
defense counsel noted the unreliability of KR\'s testimony. The\
judge stated, "In the scale of memory, this juror does not have the\
same kind of memory as the others." In his written decision, the\
trial judge found that "[a]ll nine deliberating jurors denied that\
[MM] made any statement before or during deliberations about\
knowing DeBurgo." \
'

var WPFootnote7 = 'The court also used this analysis as the basis for its\
decision to deny DeBurgo\'s motion for a new trial. \
'

var WPFootnote8 = 'Rather than enumerating each factual detail in its opinion,\
the Appeals Court cited to the pertinent facts as outlined in the\
Commonwealth\'s appellate brief at pages 24-26. \
'

var WPFootnote9 = 'This not insignificant circumstantial evidence distinguishes\
this case from O\'Laughlin v. O\'Brien, 568 F.3d 287 (1st Cir. 2009), \
to which DeBurgo cites in his reply brief. In that case, a panel\
of this court held that the scant, often contradictory,\
circumstantial evidence was such that even when viewed in the light\
most favorable to the prosecution, no rational juror could have\
found the defendant guilty beyond a reasonable doubt. \
'

var WPFootnote10 = 'In his reply brief, DeBurgo also attempts to undermine\
Duarte\'s credibility by highlighting an inconsistency between\
Duarte\'s testimony and that of the neighbors. While Duarte\
testified that she saw only one man (according to her, DeBurgo)\
running from the scene, the neighbor witnesses saw two men running\
from the scene. Again, this raises a credibility issue that was\
for the jury to determine. \
'

var WPFootnote11 = 'DeBurgo also unpersuasively argues that his case is like\
Commonwealth v. Salemme, 395 Mass. 594 (1985). In that case, the\
SJC reversed a murder conviction on sufficiency grounds, where the\
only circumstantial evidence of guilt was that (1) the fatal bullet\
entered the victim\'s head from the right-hand side, (2) ten minutes\
before the shooting a waiter saw the defendant seated on the\
victim\'s right side and another man seated on the victim\'s left\
side, and (3) the defendant fled the scene after the shooting and\
eluded the police for about seventeen months. Id. at 595-600. The\
court held that no rational trier of fact could have concluded that\
the defendant, rather than the other man seated at the restaurant\
table, had fired the bullet. Unlike Salemme, in DeBurgo\'s case\
there is significant additional evidence suggesting that DeBurgo\
rather than his companion, Anthony Douglas, was the shooter. \
Salemme, therefore, is not on point. \
'

var WPFootnote12 = 'DeBurgo also briefly argues that the Appeals Court\'s\
determination of no prejudice amounted to an unreasonable\
determination of the facts, entitling him to the writ under §\
2254(d)(2). We conclude, however, that his challenge is to the\
reasonableness of the Appeals Court\'s conclusion regarding the\
question of prejudice, rather than to its fact-finding. Therefore,\
we do not analyze the prejudice issue under § 2254(d)(2). See\
Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002) ("[T]he special\
prophylaxis of section 2254(d)(2) applies only to determinations of\
basic, primary, or historical facts. Inferences, characterizations\
of the facts, and mixed fact/law conclusions are more appropriately\
analyzed under the "unreasonableness prong" of section\
2254(d)(1).") (internal quotations and citations omitted).\
'

var WPFootnote13 = 'We discount DeBurgo\'s attempt to use MM\'s comments to her\
fellow jurors regarding DeBurgo\'s girlfriend as evidence that MM\
lied at voir dire for the simple reason that the venire was not\
asked about familiarity with DeBurgo\'s girlfriend. In addition, \
there is no suggestion that MM would have realized she had a\
potential connection to the woman until she saw her seated in the\
courtroom.\
'

var WPFootnote14 = 'DeBurgo also briefly urges us to consider the voir dire issue\
under § 2254(d)(1) as an unreasonable application of established\
federal law regarding DeBurgo\'s constitutional right to an\
impartial jury of twelve. He cites to the law as set forth in\
Parker v. Gladden, 385 U.S. 363 (1966), Ross v. Oklahoma, 487 U.S.\
81 (1988), and Smith v. Phillips, 455 U.S. 209 (1982). While\
DeBurgo only devotes four sentences to this argument, and therefore\
arguably waived the claim, United States v. Zannino, 895 F.2d 1, 17\
(1st Cir. 1990), we briefly note that because we presume the\
correctness of the state court\'s factual findings on this issue,\
the state court did not unreasonably apply federal law in\
concluding that MM\'s presence on the jury did not violate DeBurgo\'s\
constitutional right to an impartial jury of twelve. \
'

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