Magraw v. Roden

Filing 31

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered. Upon de novo review, 30 petitioners objections to the Report and Recommendation of the Magistrate Judge are overruled, and the 26 Report and Recommendation is accepted by the Court pursuant to 28 U.S.C. § 636(b)(1). The 1 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED.(Cicolini, Pietro)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
DAVID G. MAGRAW,
)
)
Petitioner,
)
)
Civil Action No.
v.
)
09-11534-FDS
)
GARY RODEN,
)
)
Respondent.
)
_______________________________________)
MEMORANDUM AND ORDER ON
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
SAYLOR, J.
This is a habeas corpus proceeding under 28 U.S.C. § 2254(d). Petitioner David G.
Magraw was convicted by a jury in Massachusetts state court of second-degree murder. The
conviction arose out of the death of his estranged wife during the time that the couple was
negotiating the terms of their divorce. The conviction, for which he is now serving a term of life
imprisonment, came after a second trial, conducted after the Supreme Judicial Court overturned
his initial conviction and granted him a retrial.
Petitioner asserted four claims in support of his petition for relief: (1) that the evidence
was insufficient to support his conviction in violation of the Due Process Clause of the
Fourteenth Amendment; (2) that the prosecution made statements and elicited testimony during
the trial about certain incidents, including the first trial, that deprived petitioner of his
constitutional right to a fair trial under the Sixth and Fourteenth Amendments; (3) that the trial
court’s admission of certain hearsay statements violated his rights under the Confrontation
Clause of the Sixth Amendment; and (4) that the Commonwealth destroyed certain medical

evidence in violation of the Due Process Clause of the Fourteenth Amendment.
The matter was referred to United States Magistrate Judge Robert B. Collings pursuant to
28 U.S.C. § 636(b)(1) for findings and recommendations. On February 19, 2013, the Magistrate
Judge issued a Report that recommended that the petition be denied.
Petitioner timely filed an objection to the Report and Recommendation. He objected to
the following findings: (1) that the Massachusetts Appeals Court reasonably applied Jackson v.
Virginia, 443 U.S. 307 (1979), in determining that there was sufficient evidence to support his
conviction beyond a reasonable doubt; (2) that the medical evidence destroyed by the
Commonwealth was not “apparently exculpatory;” (3) that the prosecution’s improper
statements and questioning at trial did not infect the trial with unfairness sufficient to render the
conviction unconstitutional.
Upon de novo review, and for the reasons set forth below, the Court will adopt the Report
and Recommendation of the Magistrate Judge.
I.

The Standard for Habeas Corpus Review
Under 28 U.S.C. § 2254(d), a federal court may not issue a habeas petition “with respect

to any claim that was adjudicated on the merits in State court proceedings” unless the state court
decision (1) “was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” or (2) “was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). Petitioner invokes both provisions here.

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II.

The Application of Jackson v. Virginia
Petitioner contends that there was insufficient evidence to support his conviction in

violation of the Due Process Clause of the Fourteenth Amendment. In support of this contention,
he argues that the Commonwealth’s case was based upon circumstantial evidence, and that the
finding of the Appeals Court as to the sufficiency of the evidence was based upon conjecture
from that circumstantial evidence, rather than the evidence itself. Petitioner contends that the
evidence was insufficient both as to (1) the cause of death (that is, was his estranged wife
murdered?) and (2) the identity of the perpetrator (that is, was he the murderer?). Petitioner
contends that in order to conclude that his wife died of strangulation and that petitioner
perpetrated the crime, the jury was required to engage in undue speculation.
In determining whether evidence is sufficient to uphold a conviction, the relevant
constitutional question is whether, “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). As here, when a
state court has reviewed a challenge to the sufficiency of the evidence under the appropriate
constitutional standard, a federal court may overturn that decision “only if the state court
decision was ‘objectively unreasonable.’” Cavazos v. Smith, 132 S. Ct. 2, 4 (2011); see also
Leftwich v. Maloney, 532 F.3d 20, 23 (1st Cir. 2008) (holding that the “state court’s decision is
not vulnerable unless it evinces some increment of incorrectness beyond mere error”). Petitioner
also correctly cites United States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir. 1995), for the
proposition that when “the evidence viewed in the light most favorable to the verdict gives equal
or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime

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charged, [the] court must reverse the conviction.”
Here, the Appeals Court determined that “the evidence taken in the light most favorable
to the Commonwealth, although circumstantial in nature, was extensive and proved the
defendant’s guilt beyond a reasonable doubt.” Commonwealth v. Magraw, 58 Mass. App. Ct.
1112, 2003 WL 21955875, at *2 (2003). The Magistrate Judge concluded that this brief
discussion of the claim was not “contrary to” the Jackson standard, despite the lack of citation to
a federal case. See Rept. at 13 (citing Early v. Packer, 537 U.S. 3, 8 (2002)). Petitioner does not
dispute that determination, but rather challenges the application of the Jackson standard to the
record evidence.
The record indicates that the trial involved several days of medical expert testimony on
the issue of the cause of the victim’s death. The Commonwealth called two medical examiners,
one of whom performed the autopsy. Both concluded that the victim died of mechanical
asphyxiation (in other words, strangulation). The defense put forth his own medical expert, a
forensic pathologist and former medical examiner, who attributed the victim’s death to natural
causes.
The Jackson standard “gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” 443 U.S. at 319; see also Hurtado v. Tucker, 245 F.3d 7, 19 (1st
Cir. 2001) (“[W]here the argument over the correctness of the state court's ultimate conclusion is
one of degree calling for a choice between credible (although mutually opposed) views, the
habeas inquiry on objective unreasonableness ends.”). Here, the jurors were asked to choose
between competing opinions from competent and qualified experts. It is not the role of this

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Court, on habeas review, to overrule the jury’s decision as to which version was more credible.
See Cavazos, 132 S. Ct. at 4 (“Because rational people can sometimes disagree, the inevitable
consequence of this settled law is that judges will sometimes encounter convictions that they
believe to be mistaken, but that they must nonetheless uphold. The Court of Appeals in this case
substituted its judgment for that of a California jury on the question whether the prosecution’s or
the defense’s expert witnesses more persuasively explained the cause of a death. For this reason,
certiorari is granted and the judgment of the Court of Appeals is reversed.”). Accordingly, the
Appeals Court was not unreasonable in its determination that a reasonable juror could have
found beyond a reasonable doubt that the victim died of strangulation.
The evidence that petitioner was the perpetrator is more circumstantial. There was no
physical evidence on the victim that implicated petitioner specifically. Petitioner conceded at
trial that he was at his wife’s home from around 9:00 a.m. to 10:15 a.m. on the morning that she
died; in fact, he was the last known person to have seen her alive. There was evidence indicating
that the time of death was sometime between 11:19 a.m. and 1:19 p.m. There was also evidence
that petitioner expressed happiness at wife’s passing, indicating consciousness of guilt. And
there was evidence that she feared being alone with petitioner and that he was angry with her
about the division of marital assets she was seeking. There was no evidence of forcible entry
into the home, a fact that the Commonwealth emphasized in suggesting that petitioner had “sole
access” to the victim. The Magistrate Judge found that he could not conclude, given this
evidence, that the Appeals Court was unreasonable in its determination that a rational jury could
have found petitioner guilty beyond a reasonable doubt.
“Guilt beyond a reasonable doubt cannot be premised on pure conjecture. But a

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conjecture consistent with the evidence becomes less and less a conjecture, and moves gradually
toward proof, as alternative innocent explanations are discarded or made less likely.” Stewart v.
Coalter, 48 F.3d 610, 615-616 (1st Cir. 1995). Where, as here, the Commonwealth’s case was
premised largely on circumstantial evidence and inferences, it is the task of the Court, on habeas
review, to adduce whether any rational trier of fact could have found proof of guilt beyond a
reasonable doubt. Newman v. Metrish, 543 F.3d 793, 797 (6th Cir. 2008). The inquiry becomes
even more deferential where, as here, the Appeals Court has determined that the evidence was
sufficient to support the conviction. Again, the role of this Court is not to make its own
determination of guilt, but rather to determine whether the Appeals Court reasonably determined
that the evidence was sufficient.
It is true that federal courts have occasionally reversed state court decisions on the basis
that the evidence relied too heavily on conjecture to support a conviction. But those cases
almost invariably involve a complete lack of physical evidence linking the accused to the victim
or the scene of the crime. See, e.g., O'Laughlin v. O'Brien, 568 F.3d 287, 304 (1st Cir. 2009) (“It
bears repeating that the prosecution had to rely on circumstantial evidence because no physical
or DNA evidence linked O'Laughlin to the attack despite the copious amount of blood at the
crime scene. Considering the large amount of blood, it is difficult to fathom how O'Laughlin
was able to avoid having any blood or other DNA evidence connect him to Mrs. Kotowski.”);
Newman, 543 F.3d at 797 (“[E]ven assuming that Newman's gun was indeed the one used in the
homicide, there was no evidence of what happened to it between that date and the date of the
homicide, and we need not speculate as to what might have happened.”). Here, too, there is a
lack of such physical evidence. But unlike the defendants in those cases, petitioner has admitted

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that he was at the scene of the crime on the morning it took place. Where the evidence places a
defendant at the scene of the crime in close temporal proximity to its perpetration, the inference
of his guilt gains substantial weight. Accord. Newman, 543 F.3d at 797 n. 4 (“For example, if
the witness had observed the gun in Newman's house only a day before the homicide and had
been more certain that it was indeed the same gun as that used in the homicide, there would be a
stronger inference that Newman was present. With these hypothetical facts, Newman’s petition
would more closely resemble those made in cases where circumstantial evidence did satisfy the
Jackson standard.”). Furthermore, the Commonwealth introduced credible evidence of motive
and opportunity. There was also credible evidence—although vigorously disputed—concerning
petitioner’s consciousness of guilt.
Where there is no physical evidence and no eyewitness account, it is possible to “imagine
[or concoct] innocent explanations for almost anything,” but a reasonable jury can reject them as
“far-fetched.” Stewart, 48 F.3d at 615. And it is well-established that “the evidence need not
exclude every reasonable hypothesis except that of guilt.” Newman, 543 F.3d at 797. The
Appeals Court determined that a rational juror could have made the necessary credibility
determinations and reasonable inferences to eliminate any reasonable doubt as to petitioner’s
guilt. This Court does not find that determination to be unreasonable, and is not prepared to
substitute its judgment based upon the cold record for the fact-finding determination of the jury.
Accordingly, this Court finds that the decision of the Appeals Court was not an
unreasonable application of Jackson, and petitioner will therefore not be granted habeas corpus
relief on that basis.

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III.

The Destruction of Medical Evidence
Petitioner further contends that the Commonwealth improperly destroyed certain

exculpatory medical evidence (in particular, the victim’s larynx) in violation of the Due Process
Clause of the Fourteenth Amendment.
The principal cases governing the use of lost or destroyed evidence are California v.
Trombetta, 467 U.S. 479, 485 (1984) and Arizona v. Youngblood, 488 U.S. 51, 55 (1988). See
Olszewski v. Spencer, 466 F.3d 47, 55 (1st Cir. 2006) (“Trombetta and Youngblood govern the
constitutionality of the nondisclosure of evidence in cases in which the government no longer
possesses the disputed evidence.”). The distinction articulated by Trombetta and Youngblood
deals with the nature of the withheld evidence. If the evidence was only “potentially useful,”
Youngblood requires that petitioner prove bad faith on the part of the government in destroying
or withholding it. Youngblood, 488 U.S. at 56. However, if the evidence was “apparently
exculpatory,” Trombetta dictates that petitioner need not prove bad faith. Trombetta, 467 U.S. at
485-86. Petitioner contends that the medical evidence at issue was “apparently exculpatory,”
and, therefore, the Appeals Court erred in rejecting his claim for failure to prove bad faith on the
part of the Commonwealth.
As a preliminary matter, it is important to note that the finding of the Appeals Court that
petitioner failed to demonstrate the exculpatory nature of the evidence at issue is a factual
finding that this Court “shall [presume] to be correct,” and petitioner bears the burden of
disproving such a finding by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The
Magistrate Judge found that petitioner failed to meet that burden.
Petitioner argues that the Commonwealth would have preserved the evidence if it had

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been inculpatory, and, therefore, because it was not preserved, it must have been exculpatory.
This is a flawed logical inference for a number of reasons, not the least of which is that the
evidence may have simply been inconclusive or even cumulative. The medical evidence that
was not preserved is analogous to the untested semen samples in Youngblood; there, as here, “the
possibility that the [medical evidence] could have exculpated respondent if preserved or tested is
not enough to satisfy the standard of constitutional materiality.” Youngblood, 488 U.S. at 56.
Accordingly, the Court finds that the Appeals Court correctly applied constitutional precedent
when it denied petitioner’s due process claim on the ground that he could not show that the
medical evidence was “apparently exculpatory” or that the Commonwealth destroyed it in bad
faith.
Upon de novo review, this Court finds that the Appeals Court did not unreasonably apply
established Supreme Court precedent to petitioner’s due process claim. Accordingly, his claim
for habeas corpus relief on that basis will be denied.
IV.

The Commonwealth’s Allegedly Improper Statements and Questioning
Petitioner’s final contention is that the Commonwealth engaged in prosecutorial

misconduct in violation of his right to a fair trial under the Sixth and Fourteenth Amendments.
Specifically, petitioner contends that the Commonwealth’s two references to his previous
trial—in direct contravention of the trial court’s order not to do so—“so infected the trial with
unfairness as to make the resulting convictions a denial of due process.” Darden v. Wainwright,
477 U.S. 168, 181 (1986). Because the Appeals Court made only cursory reference to
petitioner’s claims of prosecutorial misconduct, it is difficult for the Court to ascertain whether
those claims were adjudicated on the merits of the federal claims and therefore entitled to

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deferential review. See Clements v. Clarke, 592 F.3d 45, 52 (1st Cir. 2010) (nothing that
“determining precisely which substance [a state court relied on] proves a bit more elusive”). In
an abundance of caution, the Court will review the claims de novo.
The two references to the previous trial occurred during the cross-examination of
petitioner’s expert forensic pathologist, who had also testified in the first trial. Twice during that
examination, the Commonwealth referred the defense witness to his prior testimony given “at the
first trial.” Tr. X at 136:18, 158:6. The trial judge appropriately admonished the prosecution,
but refused to grant a mistrial on the basis of those references. The Magistrate Judge likewise
concluded that the two isolated references did not “so infect the trial with unfairness as to make
the resulting conviction a denial of due process;” his Report emphasized, in particular, the fact
that the references did not make clear that the “first trial” was a criminal trial, let alone that it led
to a conviction. See Rep. and Rec. at 27-28.
This Court has independently examined the trial record to determine whether the
references to petitioner’s first trial amounted to unconstitutional prosecutorial misconduct. Both
of the references occurred when the prosecutor was confronting the witness with prior
inconsistent statements made in the course of his testimony at the first trial. Both appear to have
been made for the purpose of referring to the testimony in the transcript that the prosecution was
using with the witness. Neither reference indicated that petitioner was found guilty in the
previous trial. Over defense counsel’s strong objection, the trial judge decided not to grant a
mistrial on the basis of the comments, although the judge did reprimand the prosecution and
directed that counsel choose his words very carefully to avoid another misstep.
There is, of course, no excuse for the error—particularly the second time that it occurred.

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That is not enough, however, to warrant habeas relief. Although this Court is not convinced that
the comments were completely innocuous, the record does appear to indicate that the
Commonwealth did not intend to impermissibly draw the jury’s attention to the existence of a
prior trial. More importantly, it is unlikely that the statements actually had any significant
prejudicial effect. Fairly read in context, the statements were not so prejudicial as to infect “the
trial with unfairness as to make the resulting convictions a denial of due process.” Darden, 477
U.S. at 181.
Upon de novo review, this Court finds that petitioner’s prosecutorial misconduct claim is
without merit. Accordingly, his claim for habeas corpus relief on that basis will be denied.
V.

Conclusion
For the foregoing reasons, upon de novo review, petitioner’s objections to the Report and

Recommendation of the Magistrate Judge are overruled, and the Report and Recommendation is
accepted by the Court pursuant to 28 U.S.C. § 636(b)(1). The petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is DENIED.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: March 22, 2013

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