Nardi v. Pepe
Filing
OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Michael Boudin, Appellate Judge and Norman H. Stahl, Appellate Judge. Published. [11-1247]
Case: 11-1247
Document: 00116294903
Page: 1
Date Filed: 11/22/2011
Entry ID: 5597713
United States Court of Appeals
For the First Circuit
No. 11-1247
GEORGE J. NARDI,
Petitioner, Appellant,
v.
PETER PEPE, SUPERINTENDENT,
MASSACHUSETTS CORRECTIONAL INSTITUTE, CONCORD,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Stahl, Circuit Judges.
Stewart T. Graham, Jr. with whom Graham & Graham was on brief
for appellant.
Jennifer L. Sullivan, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief
for appellee.
November 22, 2011
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BOUDIN, Circuit Judge.
Date Filed: 11/22/2011
Entry ID: 5597713
George Nardi was convicted of
first-degree murder in a Massachusetts state trial court for
killing his mother, Dianne Barchard.
Nardi later sought federal
habeas relief and now, following its denial, presses a single claim
on appeal: he argues that the state trial court violated his rights
under the Confrontation Clause of the Sixth Amendment by admitting
expert
opinion
testimony
resting
on
what
he
contends
was
inadmissible testimonial hearsay.
The underlying facts are drawn from the Massachusetts
Supreme
Judicial
Court's
("SJC")
opinion
affirming
Nardi's
conviction, Commonwealth v. Nardi, 893 N.E.2d 1221 (Mass. 2008).
See 28 U.S.C. § 2254(e)(1) (2006).
At the time of Barchard's
death, Nardi, then thirty-seven years old, lived with Barchard,
then fifty-nine years old, in her apartment.
The two had what the
SJC called a stormy relationship. In December 2002, Barchard began
telling friends--and Nardi became aware--that she planned to move
into elderly housing the following month, where Nardi could not
stay with her.
Shortly thereafter, Barchard disappeared. This happened
a few months after Nardi damaged beyond repair his car in a DUI
crash, preventing him from driving to work and further straining
his relationship with his mother, as he had less money and drank
more than usual.
After his mother's disappearance, Nardi told her
friends various lies about her whereabouts.
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Eventually, alerted by one of Barchard's friends who was
alarmed
by
her
decomposing
body
absence,
lying
authorities
under
a
discovered
blanket
in
apartment in which Nardi continued to live.
a
Barchard's
bedroom
of
her
Nardi had concealed
Barchard's disappearance from her friends and family for about two
weeks; she had been dead most of that time.
Forensic evidence
suggested that he had mopped up a blood trail going from the
kitchen to the bedroom where Barchard was found.
Dr. James Weiner performed an autopsy on Barchard's body
and recorded his findings in an autopsy report.
The report noted
bruising on her face consistent with suffocation by the pressing of
a hand over the mouth and nose, as well as signs of limited heart
disease.
Dr.
Weiner
concluded
that
consistent with asphyxia by suffocation.
the
cause
of
death
was
The state charged Nardi
with first-degree murder and his case was scheduled for trial.
Before that trial, Dr. Weiner retired to Florida and was
unable to return to testify because of a medical condition.
At
trial, the prosecution called instead Dr. Edward McDonough who had
extensive experience as a medical examiner but no involvement in
Barchard's autopsy.
Before testifying, Dr. McDonough reviewed Dr.
Weiner's autopsy report, as well as autopsy photographs, tissue
slides and a toxicology report, and formed what he described as his
own opinion about the cause of Barchard's death.
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Dr. McDonough testified during Nardi's trial that in his
expert opinion, the cause of Barchard's death was consistent with
asphyxia by suffocation.
He also testified to several facts
derived from the autopsy report, and revealed that Dr. Weiner had
also
concluded
Barchard
was
suffocated.
The
government
additionally introduced evidence of the contentious relationship
between Nardi and Barchard, her plans to move out, his efforts at
concealment of the body, and evidence concerning the clean-up of
the blood trail in the apartment.
Nardi's defense at trial, supported by his own testimony,
was that Barchard died of a heart attack and that he had concealed
her death out of panic and bad judgment.
medical
expert
to
interpret
Barchard's heart disease.
the
Nardi offered his own
autopsy
findings
regarding
Nardi's counsel focused his cross-
examination of Dr. McDonough on Barchard's heart condition, the
lack of certain injuries consistent with some forms of suffocation,
and possible inconsistencies between findings in the report.
At the end of the six-day trial, the jury deliberated for
several hours and then convicted Nardi of first-degree murder.
was thereafter sentenced to life in prison.
He
On direct review, the
SJC upheld the conviction, rejecting Nardi's claims based on the
Sixth Amendment's Confrontation Clause, see Crawford v. Washington,
541 U.S. 36 (2004), and its state constitutional equivalent, Mass.
Const. pt. 1, art. 12.
Nardi, 893 N.E.2d at 1229-35.
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The SJC first concluded that admission of Dr. McDonough's
opinion based on the autopsy report did not standing alone violate
the
Confrontation
Clause;
Dr.
McDonough,
said
the
SJC,
was
providing his own opinion and it in turn rested on what were
traditional and permissible sources of expert knowledge.
893 N.E.2d at 1229-31.
Nardi,
Nardi, the SJC concluded, was free to
cross-examine Dr. McDonough regarding the strengths and weaknesses
of the foundation of that opinion.
Id.
The SJC did view as a violation of the Confrontation
Clause Dr. McDonough's testimony revealing portions of the content
of
Dr.
Weiner's
autopsy
report.
But
it
found
under
state
procedural law that this claim--not preserved at trial--was subject
to review only for error that created a "substantial likelihood of
a miscarriage of justice."
Nardi, 893 N.E.2d at 1233-34.
Because
Nardi himself used the autopsy report to support his heart attack
theory, the SJC saw no substantial likelihood of a miscarriage of
justice.
Id.
Repairing to the federal habeas court, Nardi argued that
both Dr. McDonough's opinion and his testimony repeating in part
contents of the autopsy report violated Nardi's Sixth Amendment
rights.
The district court denied both claims, concluding that at
the time of the SJC decision, neither claim was supported by
"clearly
established"
law
under
then-existing
Supreme
Court
precedent; as to the latter claim, the district court also ruled
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that it was procedurally defaulted and that any error would have
been harmless
given
Dr.
McDonough's
testimony
as
to
his
own
certificate
of
opinion.
The
district
court
granted
a
appealability, 28 U.S.C. § 2253(c); Fed. R. App. P. 22, limited to
the issue whether it was clearly established law at the time of
Nardi's trial that an autopsy report was inadmissible testimonial
hearsay and, if so, whether "a testifying expert's opinion may rely
on inadmissible [testimonial] hearsay."
Our concern here is with
Dr. McDonough's opinion testimony rather than the references made
by him to the original report and to Dr. Weiner's views.1
Where a state court decides on the merits a question of
federal law--here, the admissibility of Dr. McDonough's own opinion
based in part on an autopsy report prepared by a non-testifying
witness--a federal habeas court may grant the writ only if the
state decision 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).
This narrowed habeas remedy was an effort by Congress to prevent
federal courts in habeas proceedings from second-guessing state
1
The SJC held that any objection to the references was not
preserved, so an independent and adequate state ground bars federal
habeas review. Coleman v. Thompson, 501 U.S. 722, 749-50 (1991).
Nardi does not contend otherwise or suggest this case falls within
an exception to the procedural default rule.
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courts in doubtful cases.
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Entry ID: 5597713
Williams v. Taylor, 529 U.S. 362, 404,
406, 411 (2000).
Nardi says that the state court here did not decide the
Confrontation Clause question on the merits and relied only on
state law, see DiBenedetto v. Hall, 272 F.3d 1, 6-7 (1st Cir.
2001), cert. denied, 535 U.S. 1024 (2002), but he is wrong.
The
SJC cited both the seminal Crawford decision of the Supreme Court
and prior state cases dealing with the federal right.
N.E.2d at 1227, 1229-31.
Nardi, 893
Indeed, the SJC made clear at the outset
of its discussion that Massachusetts' state constitution provides
protection
coextensive
confrontation issues.
with
that
of
the
Sixth
Amendment
on
See Nardi, 893 N.E.2d at 1229 n.10.
Under section 2254(d)(1), only Supreme Court precedent in
effect at the time of the state court adjudication on the merits
counts as "clearly established Federal law," Greene v. Fisher, No.
10-637, 2011 WL 5335411, at *3-4 (U.S. Nov. 8, 2011); the only
pertinent Supreme Court precedent that applied at the time of the
SJC's decision affirming Nardi's conviction was Crawford.
In our
view, Crawford (as matters stood when the SJC decided Nardi's
appeal) did not "clearly establish" that either the autopsy report
or
Dr.
McDonough's
opinion
in
partial
reliance
upon
it
were
inadmissible under the Confrontation Clause.
We start with Nardi's predicate contention that the
autopsy report Dr. McDonough partly relied on was testimonial
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hearsay forbidden by Crawford.
Date Filed: 11/22/2011
Entry ID: 5597713
Crawford, reversing longstanding
precedent to the contrary, e.g., White v. Illinois, 502 U.S. 346,
356-57 (1992); Ohio v. Roberts, 448 U.S. 56, 62-66 (1980), held
that
the
Confrontation
Clause
barred
"testimonial"
hearsay,
specifically in Crawford itself, statements taken by the police
from a crime witness who later refused to testify and could not be
cross-examined.
541 U.S. at 68.
Although all nine Justices concurred in the result and
the majority opinion commanded seven votes, the apparent consensus
was misleading, partly because the Court declined to determine how
far its new "testimonial statement" category extended.
In fact,
the majority opinion seemed to suggest a narrow reading of what
counts as "testimonial."
Crawford, 541 U.S. at 56 ("Most of the
hearsay exceptions covered statements that by their nature were not
testimonial—for
example,
business
records
or
statements
in
furtherance of a conspiracy.").
Thus, the Court was sharply divided when, five years
later, Crawford was extended to affidavits prepared in a state
medical laboratory as to the quantity and nature of a seized drug.
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531, 2542 (2009).
Five Justices ruled that the affidavits were plainly made for
purposes of trial and so amounted to witness testimony subject to
the Confrontation Clause.
Id. at 2532.
However, four dissenters
saw this as a mistaken extension of Crawford, see 129 S. Ct. at
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(Kennedy,
J.,
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dissenting),
Date Filed: 11/22/2011
and--more
Entry ID: 5597713
important
here--a
necessary fifth vote for the majority limited his support to
"formalized testimonial materials, such as affidavits, depositions,
prior testimony, or confessions," id. (Thomas, J., concurring).
Most recently, in Bullcoming v. New Mexico, 131 S. Ct.
2705
(2011),
the
Court
extended
Melendez-Diaz
to
a
forensic
laboratory report prepared for trial purposes that certified a
machine read-out of blood alcohol level.
Id. at 2709, 2717.
This
time, Justice Sotomayor provided the needed fifth vote, stressing
that the certificate's primary purpose was as trial evidence, and
adding: "this is not a case in which an expert witness was asked
for his independent opinion about underlying testimonial reports
that were not themselves admitted into evidence."
Id. at 2719,
2722 (Sotomayor, J., concurring).2
Abstractly, an autopsy report can be distinguished from,
or
assimilated
to,
the
sworn
documents
in
Melendez-Diaz
and
Bullcoming, and it is uncertain how the Court would resolve the
question.
We
treated
such
reports
as
not
covered
by
the
Confrontation Clause, United States v. De La Cruz, 514 F.3d 121,
133-34 (1st Cir. 2008), cert. denied, 129 S. Ct. 2858 (2009), but
2
The significance of this primary purpose test was underscored
in Michigan v. Bryant, decided only last spring, where Justice
Sotomayor--writing for five Justices--explicitly employed the
primary purpose test in deciding that the dying statement of a
mortally wounded victim to the police was not testimonial and so
not barred by the Confrontation Clause. 131 S. Ct. 1143, 1156,
1165-67 (2011).
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the law has continued to evolve and no one can be certain just what
the Supreme Court would say about that issue today.
However, our
concern here is with "clearly established" law when the SJC acted.
Melendez-Diaz and Bullcoming were decided after the SJC
acted in this case, and the Crawford decision predating SJC review
did not "clearly establish" that forensic laboratory reports were
barred as testimonial.
We recently so held in Likely v. Ruane, 642
F.3d 99, 102 (1st Cir. 2011).
That close decisions in the later
Supreme Court cases extended Crawford to new situations hardly
shows the outcomes were clearly preordained.
And, even now it is
uncertain whether, under its primary purpose test, the Supreme
Court would classify autopsy reports as testimonial.
It is also unclear whether, even if the Court were to so
classify them, the admissibility of in-court expert testimony that
relied in some measure on such a report would be affected.
In such
a case, a witness exists who can be cross-examined; and a long
tradition exists of allowing experts to rely on hearsay where it is
common practice in the profession to rely upon such evidence.
E.g., Fed. R. Evid. 703; 2 Broun et al., McCormick on Evidence
§ 324.3, at 417-19 (6th ed. 2006).
a
testifying
doctor
who
relies
One of the common examples is
in
part
on
medical
tests
or
specialist reports.
Many experts in trials, in one degree or another, rely on
information supplied by others who are not present to testify.
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Several circuits, in addition to our own in De La Cruz, 514 F.3d at
134,3 have said that the Confrontation Clause does not limit
experts offering their own opinion regardless of the independent
admissibility of the material relied upon.
The Supreme Court is
now considering whether the expert may disclose that material to
explain the opinion's foundation. People v. Williams, 939 N.E.2d
268 (Ill. 2010), cert. granted, 131 S. Ct. 3090 (U.S. June 28,
2011) (No. 10-8505).
In all events, we stress the present uncertainty of the
law only to emphasize that it was even more unsettled at the time
of Crawford just how far that decision would be extended beyond
statements
taken
by
the
police
for
specific
use
at
trial.
Certainly it was not clearly established law at the time of the SJC
decision that any part of Dr. McDonough's testimony violated
clearly established Supreme Court precedent.
That is enough to
resolve this case.
Affirmed.
3
E.g., United States v. Turner, 591 F.3d 928, 933-34 (7th Cir.
2010), petition for cert. filed (U.S. Apr. 12, 2010) (No. 0910231); United States v. Johnson, 587 F.3d 625, 636 (4th Cir.
2009), cert. denied, 130 S. Ct. 2128 (2010); United States v. Law,
528 F.3d 888, 912 (D.C. Cir. 2008), cert. denied, 129 S. Ct. 1023
(2009).
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