MASSEY v. WARREN et al
OPINION. Signed by Judge Renee Marie Bumb on 3/23/2015. (tf, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Lloyd A. Massey,
Charles Warren, et al.,
Civil Action No. 11-7261(RMB)
BUMB, District Judge
This matter is presently before the Court upon submission
of an Amended Petition for a Writ of Habeas Corpus under Title
28 U.S.C. § 2254 (“Pet.” Doc. No. 26), by Lloyd A. Massey
For the reasons stated below, the Petition will
Petitioner is presently confined at New Jersey State
Prison, in Trenton, New Jersey.
(Pet. at 1.)
On June 12, 2002,
he was convicted by a jury in the Superior Court of New Jersey,
Atlantic County, of purposeful and knowing murder of Richard
White, Lamont Wilson and Michael Demps; attempted murder of
Terrance Harris; possession of an assault firearm; possession of
a large capacity magazine; hindering apprehension; and tampering
(Mem. of Law in Supp. of Amended Answer to Pet.
for Writ of Habeas Corpus (“State’s Mem.”) Doc. No. 27-2 at 1).
Petitioner was subsequently sentenced to three consecutive terms
of life imprisonment without parole.
State v. Massey, 2007 WL
2301651, at *1 (N.J. Super. Ct. App. Div. Aug. 13, 2007).
Petitioner filed a direct appeal, and the appellate court
made the following findings.
A person identified as [Petitioner] fired an
AK47 assault rifle into a car killing three
occupants, and hitting a fourth, Terrance
Harris, who was able to run away. The
State's proofs included identification
testimony and evidence that [Petitioner] had
previously possessed an AK47, that all of
the bullets came from the same AK47, and
that [Petitioner] had a prior fight with a
friend of the victims and a confrontation
with one of the victims, Michael Demps, who
had threatened [Petitioner] earlier on the
morning of the 4 A.M. shootings. The
passenger in [Petitioner’s] vehicle at the
time of the shootings, Gary Way, was a
witness, as were passing motorists including
Karen Simpkins, and Harris, the surviving
passenger. Harris did not identify the
shooter, and did not see Way with a gun. A
cellmate of [Petitioner's] also testified
that [Petitioner] said he killed the victims
because they “pissed him off.”
The [Petitioner] asserted that Way was the
shooter, that Simpkins[,] who made a
positive identification[,] did so after
seeing his photo “at least five times in
three different arrays,” that the jail mate
was not in the same location of the jail as
[Petitioner], and that a Harrah's security
officer believed he saw Way with a gun.
[Petitioner] also endeavored to refute other
evidence produced by the State. Part of the
testimony developed by the defense was that
the witnesses described Way as wearing baggy
clothing, which could have concealed the
The State rebutted the defense with proofs
which included evidence that the long
barreled gun could not have been hidden in
Way's clothing, and that the shells found
all came from the same gun.
Remand to the trial court regarding the polygraph
examination of Gary Way
In 2007, the appellate court remanded several issues for
further proceedings, including whether failure to disclose Gary
Way’s polygraph testing and allow his cross examination on the
polygraph material required that a new trial be granted.
Massey, 2007 WL 2301651, at *2.
The defense characterized Way
as a critical witness of the State, whom the defense contended
was the actual perpetrator.
Way gave two statements to police during the investigation,
about a week apart.
taking a polygraph test.
He gave the second statement after
Way gave information in the
second statement that he had not given in the first statement,
that he saw the gun used in the shootings at Petitioner’s house
before the day of the crime and that he saw the gun in the
backseat of Petitioner’s car before the shooting began.
The defense argued it was prejudiced because it was not allowed
to “develop before the jury that Way changed his story after he
failed a polygraph.”
On March 27, 2008, after a hearing on remand, the trial
court, Judge James E. Isman, made the following findings
concerning whether defendant was prejudiced by exclusion of
testimony about the polygraph examination:
There were witnesses to this incident, not
just Gary Way. Gary Way is, only in the
minds of the Defense and creation of the
Defense, the key to the State’s case. He is
merely a small piece of the puzzle. He is a
piece that could be removed from the puzzle
and as the Prosecutor argued, you’d still
have a pretty intact jigsaw puzzle of who
the killer was and is. And as a matter of
fact, when it comes to Mr. Way,
approximately ninety-nine percent of his
testimony is corroborated by other people.
So it’s not as though it’s just Gary Way
saying something. No. It’s Gary Way saying
something that Karen Simpkins echoes, Mr.
Simpkins echoes, Terrance Harris echoes,
Hakeem Moley echoes, Steven Hassenpat
echoes. It’s not just Gary Way and to
mislead a reviewing Court into thinking that
Way is the end all and be all of this case
or even a critical part of this case is not
accurate. Is simply not accurate.
. . .
So you have an admission. You have IDs and
you have one of, if not the strongest set of
circumstances evidence-wise that have ever
been presented in front of me . . . On top
of that, you have a little thing called
flight . . .
Transcript, State of New Jersey v. Massey, A-1794-02-T4
(N.J. Super. Ct. March 27, 2008; ECF No. 15-13 at 25-27).
When the issue returned to the appellate court in 2010, the
court held Petitioner was not prejudiced by the exclusion of
testimony on the matter.
Massey, 2010 WL 3419186, at *6.
We cannot disagree with the trial judge that
the result would have been the same without
Way's testimony and that there was no
reasonable possibility that disclosure of
the polygraph evidence would have affected
the result. The only substantive difference
in [Way’s] second statement was the
additional comments about seeing the gun
before the shooting.
In finding harmless error, the court noted:
[A]mong other evidence, Harris testified
that he saw Way without a gun before the
shooting began from the adjacent vehicle,
and there was testimony Way exited the car
before the shooting started and, according
to Harris, that the shooting came from the
driver's side of the vehicle. Karen Simpkins
also identified [Petitioner] as the driver,
and Steven Hassenpat, a cell mate of
defendant at the Ocean County Jail,
testified that [Petitioner] told him he
killed the trio because “they pissed [me]
Remand to the trial court regarding late disclosure of
The appellate court, in its 2007 decision, also addressed
Petitioner’s allegation of a discovery violation concerning AK47 parts that were found approximately forty miles from where
the murders were committed, according to the trial court on
See ECF No. 15-13 at 22.
The appellate court stated:
[D]uring his cross-examination the State's
ballistics expert, State Police Detective
James Storey, testified that he had been
given parts of an AK-47 to test fire and
compare with the shells found at the scene
of the crime. This testimony came as a
surprise to the defense. The expert report
provided in discovery did not include
reference to the finding of a gun. The trial
judge denied a mistrial which was premised
on the lack of a full report in discovery
and failure to give defendant an opportunity
to test the gun or its parts. The judge
stated that the gun was found at a time and
location too remote from the scene of the
crime and believed the gun could not be
In response to a later request for a read
back of Storey's testimony during
deliberations, the judge told the jury that
“there is no evidence or testimony in the
record ... in this trial to suggest that
those parts are in any way related to the
assault firearm used on September 8th of
2000” and that the jury should draw no
inference “against or in favor of either
side from this portion of his testimony.”
Defendant contends that the jury should have
been advised of when and where the parts
were found, because defendant could not have
taken [the gun parts to the place where they
were found] before he [was] arrested, and
only Way could have done so, which would
have supported the defense that [Way] had to
have possessed the AK-47 and shot the
[Petitioner] does not explain how testing by
his expert could have helped the defense or
what could be introduced to benefit
[Petitioner's] case. In fact, his expert
retained the gun (which Storey could not
test fire) at the time of sentencing, and
apparently never came up with anything of
substance beneficial to the defense. . . .
Nevertheless, because there must be a
remand, the parties should update the record
on the issue so that it can be considered in
connection with the trial judge's
reconsideration of defendant's motion for a
new trial and our ultimate review of the
case which may require consideration of the
judge's instructions to the jury on the
subject and a harmless error analysis.
Id. at *11-12.
After the hearing on remand, the trial court found “there
was nothing in the record to suggest that these gun parts that
were found months later in an area that is accessible to Camden,
Newark, Philly, New York, dozens of other - - dozens of other
towns, had anything to do with the AK alleged to be used in this
(ECF No. 15-13 at 23-24.)
In its 2010 decision, the appellate court denied
Petitioner’s claim regarding the late disclosure of the AK-47
Massey, 2010 WL 3419186, at *6.
The court found there
was no viable issue because “defendant has still been unable to
develop anything exculpatory with respect to the AK47 . . . ”
Appellate Court Decision on issues reserved from
In 2010, the appellate court addressed the issues it had
reserved, pending the result of the remand proceedings, from the
Massey, 2010 WL 3419186, at *7-11.
affirmed Petitioner’s convictions.
Exclusion of expert testimony on unreliability of
As background, the trial court held a pre-trial hearing on
the State’s motion to preclude the defense from calling Dr.
Steven Penrod as an expert on the issue of the reliability of
(ECF No. 11-1 at 4-9.)
argued the subject matter was inappropriate for expert testimony
under New Jersey Evidence Rule 702 and New Jersey Supreme Court
precedent because the subject matter was not beyond the ken of
the average juror.
The trial court excluded the
testimony, relying on New Jersey Rule of Evidence 702, which was
“adopted from the Federal rule”:
If scientific, technical or other
specialized knowledge will assist the trier
of fact to understand the evidence or
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience or training or education, may
testify thereto in the form of an opinion or
(ECF No. 11-1 at 22-23, 28.)
The New Jersey Supreme Court interpreted Rule 702 to
require the following prior to admission of expert testimony:
(1) the subject matter of the testimony must be beyond the ken
of the average juror; (2) the expert testimony must be
sufficiently reliable; and (3) the witness must have sufficient
expertise to offer the intended testimony.
(Id. at 23.)
trial court also discussed the New Jersey Supreme Court case
State v. Cromedy, 158 N.J. 112 (1999), which concluded it was
appropriate to give a “cross racial” instruction to the jury,
but that expert testimony on eyewitness identification would not
assist the fact-finder and was not beyond the ken of the average
(Id. at 24.)
The trial court determined that the defense failed to
establish the first prong of admissibility under New Jersey
precedent, that Dr. Penrod’s testimony was on a subject beyond
the ken of the average juror.
(Id. at 25-26.)
Thus, the court
concluded Dr. Penrod’s testimony would impede on the jury’s
province of determining the credibility of witnesses.
Furthermore, Dr. Penrod’s testimony regarding unreliability of
cross racial identification would not assist the jury because
“it’s clearly addressed in the model jury charge as promulgated
. . . in response to the Cromedy decision.”
(Id. at 26.)
The appellate court summarily rejected Petitioner’s claims
regarding expert identification testimony but also suggested
that Petitioner could raise additional claims in a postconviction proceeding, based on a pending New Jersey Supreme
Court decision on the issue.
Massey, 2010 WL 3419186, at *7.
The appellate court also found that any error was harmless,
describing the following evidence against Petitioner: (1) shots
were fired from a car identified as one owned by defendant's
mother and considered by defendant's friends to be his; (2)
there was confirming evidence that Way was with his girlfriend
at the time of the altercation in the parking lot of the bar;
(3) witness Hakim testified as to defendant's threats at that
time about owning a gun that “spits rapid”; (4) Steven
Hassenpat, a cellmate of Petitioner while at the Ocean County
Jail, testified that Petitioner said he killed the trio because
they “pissed [him] off”; and (5) Petitioner took flight to
Georgia where he was arrested, suggesting consciousness of
Id. at *7.
The last issue addressed by the appellate court, relevant
here, is whether the prosecutor’s summation was unduly
Id. at *11.
The court concluded any overreaching
by the prosecutor in defending police conduct “could not have
affected the result.”
Petitioner appealed to the New Jersey Supreme Court, and it
denied certification on January 20, 2011.
(Pet., ¶ 9(g)).
Petitioner did not seek post-conviction relief.
The Petition for Writ of Habeas Corpus, Answer and
In the instant petition, Petitioner raised the following
grounds for relief: (1) Petitioner was denied his Sixth and
Fourteenth Amendment right to present a defense when the trial
court precluded expert testimony on eyewitness identification;
(2) Petitioner was denied his Fourteenth Amendment right to due
process because the prosecution failed to reveal evidence of the
potential murder weapon until the middle of trial; (3)
Petitioner was denied his Sixth Amendment right to confrontation
when the trial court precluded cross-examination regarding a
failed polygraph test; and (4) Petitioner was denied his
Fourteenth Amendment right to due process when the prosecutor,
in summation, stated that defense counsel made scurrilous and
irrelevant attacks on the police officers to distract the jury
from the real issues.
The State filed an Amended Answer (“Answer”) and Memorandum
of Law in Support of Amended Answer to Petition for Writ of
Habeas Corpus (“State’s Mem.”)
Mem. Doc. No. 27-2.)
(Answer, Doc. No. 27, State’s
Respondents asserted an affirmative
defense in their Answer, that three of Petitioner’s four grounds
for relief, Grounds 1, 3, and 4, were state court decisions
based on state law that are not reviewable under 28 U.S.C. §
(Answer at 10.)
Respondents, however, also addressed
the merits of each of Petitioner’s claims.
Petitioner filed a
(Petitioner’s Supplemental Reply to Respondent’s Amended
Answer (“Petr’s Reply”), Doc. No. 28.)
Standard of Review
28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus
on behalf of a person in custody pursuant to
the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim-(1) 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
(2) resulted in a decision that was
based on an unreasonable determination
of the facts in light of the evidence
presented in the State court
to clearly established Federal law” means the
state court applied a rule that contradicted the governing law
set forth in U.S. Supreme Court precedent or that the state
court confronted a set of facts that were materially
indistinguishable from U.S. Supreme Court precedent and arrived
at a different result than the Supreme Court.
Eley v. Erickson,
712 F.3d 837, 846 (3d Cir. 2013)(citing Williams v. Taylor, 529
U.S. 362, 405 (2000)).
The phrase “clearly established Federal
law” “refers to the holdings, not the dicta” of the U.S. Supreme
Williams, 529 U.S. at 412.
An “unreasonable application” of clearly established
federal law is an “objectively unreasonable” application of law,
not merely an erroneous application.
Eley, 712 F.3d at 846
(quoting Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)).
federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.”
Harrington v. Richter, 562 U.S. 86, 99 (2011).
Thus, when a
state court summarily denies a claim “a habeas court must
determine what arguments or theories ... could have supporte[d]
the state court's decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments
or theories are inconsistent with the holding in a prior
decision of this Court.”
Cullen v. Pinholster, 131 S.Ct. 1388,
1402 (2011)(quoting Harrington, 562 U.S. at 100 (emphasis
State Law Grounds
Respondents contend a habeas court cannot address claims
that solely involve application of state law.
(Answer at 8.)
While this is a true statement, it is not pertinent here.
direct appeal and in his habeas petition, Petitioner challenged
the state court rulings, including Grounds One, Three and Four
of the Petition, as violations of his federal constitutional
rights, and it is undisputed that Petitioner exhausted these
federal claims in state court.
See, Massey, 2010 WL 3419186, at
Therefore, this Court may address Petitioner’s
constitutional claims under 28 U.S.C. § 2254.
See Porter v.
Horn, 276 F.Supp.2d 278, 362 (E.D. Pa. 2003)(exhausted federal
claims were available for federal habeas review).
Merits of the Habeas Claims
In Ground One of the Petition, Petitioner argued he was
denied his Sixth and Fourteenth Amendment Rights to present a
defense when the trial court precluded expert testimony on
Petitioner asserted that
identification was a crucial issue in his case, and the trial
court arbitrarily excluded expert testimony.
(Petr’s Mem. at
Respondents argued that the rights to confrontation or
compulsory process are only violated when state rules infringe
upon “a weighty interest of the accused” and are “arbitrary” or
“disproportionate to the purposes they are designed to serve.”
(Id. at 22-23)(citing Holmes v. South Carolina, 547 U.S. 319,
319-20 (2006)(quoting United States v. Scheffer, 523 U.S. 303,
Respondents concluded the state court ruling on
admissibility of expert testimony, which relied on a well-
established local rule of evidence, was not arbitrary or
(Id. at 29.)
In Reply, Petitioner asserted there was only one witness
who testified that Petitioner was the shooter, and there were
serious problems with her identification.
(Petr’s Reply at 6.)
Petitioner argued the appropriate standard for addressing his
claim is whether the proffered defense evidence was “weighty:
not whether it would have negated all of the prosecution’s
(Id. at 8)(citing Holmes, 547 U.S. at 328-31.)
The test described by the Supreme Court in Holmes v. South
Carolina, 547 U.S. 319 (2006) governs Petitioner’s habeas claim
that his Sixth Amendment right to present a defense was violated
by the trial court’s exclusion of expert testimony on the
unreliability of eyewitness identifications.
explained the constitutional standard:
“Whether rooted directly in the Due Process
Clause of the Fourteenth Amendment or in the
Compulsory Process or Confrontation Clauses
of the Sixth Amendment, the Constitution
guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense.’
” Crane [v. Kentucky, 476 U.S. 683] 690, 106
S.Ct. 2142 (quoting California v. Trombetta,
467 U.S. 479, 485, 104 S.Ct. 2528, 81
L.Ed.2d 413 (1984); (citations omitted).
This right is abridged by evidence rules
that “infring[e] upon a weighty interest of
the accused” and are “ ‘arbitrary’ or
‘disproportionate to the purposes they are
designed to serve.’ ” [United States v.]
Scheffer, [523 U.S. 303] at 308, 118 S.Ct.
1261 (quoting Rock v. Arkansas, 483
U.S. 44, 58, 56, 107 S.Ct. 2704, 97 L.Ed.2d
Holmes, 547 U.S. at 324-25.
Although Petitioner raised a federal constitutional claim
in the state courts, the state court determinations were based
on state law.
Under such circumstances, the role of the habeas
court is to “determine what arguments or theories ... could have
supporte[d] the state court's decision; and then it must ask
whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding in
a prior decision of this Court.
Harrington, 562 U.S. at 100.
There is little doubt that Petitioner had a “weighty
interest” in reliable eyewitness identification of the shooter,
given he was faced with the death penalty at trial.
question then, is whether there is no reasonable basis for the
state court’s decision on this claim, according to fairminded
jurists, that was consistent with the Supreme Court’s holding in
In Holmes, the Court reviewed cases in which it found state
court rules were “arbitrary,” defined as ”rules that excluded
important defense evidence but that did not serve any legitimate
Holmes, 547 U.S. at 325.
One such rule was a state
statute that “barred a person who had been charged as a
participant in a crime from testifying in defense of another
alleged participant unless the witness had been acquitted.”
(citing Washington v. Texas, 388 U.S. 14 (1967)).
defendant was precluded from calling as a witness a person who
had been charged and convicted of committing the same murder the
defendant was charged with.
Another “arbitrary” rule barred parties from impeaching
their own witnesses, and was applied in a case that prevented
the defendant from impeaching a witness who had confessed to the
murder at issue, but then recanted his confession on the stand.
Id. (citing Chambers v. Mississippi, 410 U.S. 284, 294 (1973)).
The Supreme Court also found a state rule “arbitrary” because it
prevented a defendant from attempting to show his confession was
unreliable based on the circumstances under which it was made.
Id. (citing Crane v. Kentucky 476 U.S. 683, 691 (1986)).
Finally, a rule prohibiting hypnotically refreshed
testimony was unconstitutional because it was an arbitrary
restriction on the right to testify absent clear evidence
“repudiating the validity of all post-hypnosis recollections.”
Id. (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).
contrast, a rule excluding all polygraph evidence did not
abridge the right to present a defense.
Id. (citing United
States v. Scheffer, 523 U.S. 303, 309 (1998)).
served by the exclusionary rule in Scheffer was insuring that
only reliable evidence was presented to a trier of fact in a
523 U.S. at 310-11.
Here, the trial court excluded expert testimony on
eyewitness identification because the defense failed to
establish that Dr. Penrod’s testimony was on a subject beyond
the ken of the average juror.
(ECF No. 11-1 at 25-26.)
purpose of excluding such evidence was that it impeded on the
jury’s province of determining the credibility of witnesses.
“Determining the weight and credibility of witness
testimony . . . has long been held to be the “part of every case
[that] belongs to the jury, who are presumed to be fitted for it
by their natural intelligence and their practical knowledge . .
Scheffer, 523 U.S. at 313 (quoting Aetna Life Ins. Co. v.
Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724–725, 35 L.Ed. 371
Here, the trial court’s ruling did not deprive the defense
of the opportunity to test the reliability of the eyewitness
testimony on cross-examination, the court determined only that
the jury was capable of addressing the reliability of the
testimony without the need for an expert.
Although jurors might
have less knowledge of issues concerning cross racial
identification than of other issues affecting eyewitness
identification, the trial court determined this would be
addressed by the jury instruction it was required to give under
state law,1 thus, precluding the need for an expert to testify on
This case is not like the exceptional cases
described in Holmes, where the Supreme Court found that
application of a state rule precluding certain testimony
violated a defendant’s right to present a defense.
For this reason, fair-minded jurists could disagree on
whether New Jersey Court Rule 702, as applied by the state trial
court here, was arbitrary, and if the rule was proportionate and
served a legitimate interest of preserving the jury’s role in
determining the credibility of witnesses.
Therefore, under the
habeas standard of review, the state court decision did not
involve an unreasonable application of Holmes.
Ground One of
the Petition will be denied.
In support of Ground Two of the Petition, Petitioner argued
he was denied his Fourteenth Amendment right to due process
because the prosecution failed to reveal evidence of parts of an
AK-47 that were found and sent to the prosecutor before trial.
In Cromedy, the New Jersey Supreme Court requested that the
Criminal Practice and Model Jury Committees develop a crossracial jury instruction in accordance with the Court’s opinion,
and held that a cross-racial instruction “should be given only
when . . . identification is a critical issue in the case, and
an eyewitness's cross-racial identification is not corroborated
by other evidence giving it independent reliability.” 151 N.J.
112, 132 (1999)(abrogated by State v. Henderson 208 N.J. 208
(2011)(holding a jury instruction on cross-racial identification
should be given whenever cross-racial identification is in issue
(Petr’s Mem. at 35.)
Petitioner asserted the appellate court’s
decision involved an unreasonable application of Brady v.
Maryland, 373 U.S. 83 (1963) and its progeny.
(Id. at 39.)
contended that undisclosed evidence need not be exculpatory to
constitute a Brady violation, the issue is whether evidence was
favorable to the accused.
(Petr’s Mem. at 36.)
Petitioner stated the appropriate standard for review is
“whether favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence
in the verdict.”
Id. at 37 (quoting Kyles v. Whitley, 514 U.S.
Petitioner contended the gun parts were favorable even if
they could not be conclusively tied to the crime because a
crucial issue was whether the AK-47 was small enough that Gary
Way could have hidden it in his baggy pants.
(Id. at 37-38.)
If defense counsel had prior notice of the
existence of the gun parts, they could have
had Det. Storey, a State Police officer,
testify that he had examined a cut-up AK-47
in connection with this case, and that it
was only 18 ½ inches long with the stock
folded. That testimony would have
completely demolished the State’s theory
that the murder weapon was too long for Gary
Way to have hidden it in his pants as Tara
Mays and Dudley Johnson told the police.
(Id. at 38-39.)
Petitioner asserted that because there was no
physical evidence connecting him to the crime, and the only
eyewitness identification was questionable, the undisclosed
evidence about the AK-47 was enough to undermine the confidence
in the outcome of the trial.
(Id. at 40.)
Respondents argued there was no error because evidence of
the discarded AK-47 was not material, not favorable to the
accused, and not exculpatory.
(State’s Mem. at 29.)
Respondents asserted that as soon as the State became aware of
the existence of the AK-47 parts, full disclosure was made,
weeks before the defense rested its case.
(Id. at 31.)
defense could have offered evidence that pieces of the AK-47
were found, and could have made any arguments supported by such
(Id. at 33.)
Respondents argued the trial court was
correct in ruling that “it was entirely possible for the defense
itself to have offered evidence that the pieces of the AK-47
were found and make the arguments that the petitioner now claims
it would have.”
(Id. at 33, citing ECF No. 14-8 at 17-22.)
Respondents also pointed to Judge Isman’s finding that
there “was nothing in the record to suggest that these gun parts
 had anything to do with the AK47 alleged to be used in this
case,” and the gun parts differed physically from the alleged
(State’s Mem. at 32, citing ECF No. 15-11 at 13-
Respondents further asserted that the Petitioner’s
arguments regarding the gun do not “nearly approach the level of
undermining confidence in the outcome of the verdict, as in
Brady, Bagley,2 and Youngblood.”3
(Id. at 33-34.)
The state appellate court found no Brady violation because
there was nothing exculpatory about the AK-47.
3419186, at *6.
Massey, 2010 WL
Even if the court was wrong to consider whether
the evidence was “exculpatory” instead of “favorable to the
accused,” the evidence in the state court record did not
establish that the gun parts were favorable to the accused in
any meaningful way.
First, there was virtually no evidence
supporting a conclusion that the gun parts found were from the
same gun used in the crime.
Second, Petitioner was not
precluded from presenting his argument that Gary Way could have
hidden an AK-47 in his baggy clothing, explaining why witnesses
at the scene did not see him with a gun.
Assuming the AK-47 parts were favorable to Petitioner, his
inability to use this evidence does not undermine confidence in
There was plenty of evidence supporting the jury’s
conclusion that Petitioner was the shooter, including an
In U.S. v. Bagley, the Supreme Court held that impeachment
evidence is evidence favorable to the accused, and falls within
the Brady rule for disclosure. 473 U.S. 667, 676 (1985).
In Arizona v. Youngblood, the Supreme Court held that, unlike
Brady, the good or bad faith of the State is relevant where the
issue is the failure of the State to preserve evidentiary
material that could have been subjected to tests, the results of
which might have exonerated the defendant. 488 U.S. 51, 57
uninterested eyewitness’s identification of Petitioner.
2010 WL 3419186, at *2.
There was much corroborating evidence
to the identification, including testimony from the victim who
survived, excluding Way as the shooter because Way exited the
car without a gun before the shooting started; testimony from an
eyewitness that the shooter drove away from the scene, in
combination with testimony that Way ran away from the scene on
foot; and testimony that Petitioner told a cellmate he killed
three people because they “pissed him off.”
3419186, at *2.
Massey, 2010 WL
For these reasons, Ground Two of the Petition
will be denied because the state court decision did not involve
an unreasonable application of Brady and its progeny.
In Ground Three of the Petition, Petitioner alleged the
trial court violated his constitutional right to confrontation
by precluding cross-examination of witness Gary Way regarding
his polygraph testing.
(Petr’s Mem. at 40-41.)
Way failed the
polygraph exam on the question of whether he shot any of the
(Id. at 40.)
At trial, Way admitted the police called
him in for further questioning because his first statement did
not appear to be the truth.
(Id. at 41.)
Petitioner further argued he should have been allowed to
cross-examine Way about his statement to police after his
polygraph test, that he was emotional while being tested because
he was present during the murders and felt partly responsible
for what happened.
(Id. at 41-42.)
Respondents asserted that
inability to cross-examine Way was not prejudicial because his
statements did not directly contradict his trial testimony.
(State’s Mem. at 37.)
Moreover, Respondents contended the
inability to cross-examine with this information did not have a
substantial and injurious effect on the verdict, in light of the
evidence against Petitioner.
(State’s Mem. at 38.)
In conducting habeas review under 28 U.S.C. § 2254, a
federal court must assess the prejudicial impact of the
unconstitutional exclusion of evidence for harmless error, and
error is harmless unless it “had substantial and injurious
effect or influence in determining the jury's verdict.”
Pliler, 551 U.S. 112, 120-21 (2007).
This Court cannot conclude
that excluding cross-examination of Way regarding his polygraph
testing had a substantial and injurious influence on the jury’s
Even if the jury had heard that Way failed the polygraph
examination, he explained that he was nervous during the
polygraph because he felt partly responsible for what happened.
He was present during the murders.
However, it is not likely
the jury would have believed Way was the shooter because he did
not have a motive.
Petitioner’s motive, however, was well-
established at trial, Petitioner fled the state after the crime,
and a cellmate testified Petitioner told him that he killed
three people who “pissed him off.”
For this reason, the Court
will deny Ground Three of the petition.
In Ground Four of the Petition, Petitioner alleged that
prosecutorial misconduct in summation denied his right to a fair
The prosecutor told the jury in summation that defense
counsel attacked the police officers who investigated the case
with “scurrilous and irrelevant criticism.”
45)(citing ECF No. 14-4 at 24.)
(Petr’s Mem. at
The prosecutor suggested
defense counsel’s accusations against the police:
[w]ere argued in the cynical belief that it
would distract you from your principle role
of reviewing the evidence of guilt, and the
cynical belief that you would somehow be
distracted that your perhaps level of
discomfort with which the manner in which
the case was investigated would somehow rub
off in favor of the Defense’s argument that
there is reasonable doubt.
(Id. at 45-46.)
According to Petitioner, the prosecutor’s statements were
an attempt to divert the jury from focusing on a defense
witness’s statement to the police.
(Id. at 47-48.)
argued the witness only told the police what they wanted to
hear, recanting her testimony that Way had a gun so they would
not send her to Florida on a warrant.
No. 14-4 at 28.)
(Id. at 47)(citing ECF
Defense counsel played the witness’s taped
statement to the jury to demonstrate she told the truth when she
said Gary Way had an AK-47, and she felt a gun in his pants.
(Id. at 46)(citing ECF. No. 13-3, at 108-10).
On habeas review, the question of whether prosecutorial
misconduct violated a defendant’s Fourteenth Amendment right to
due process is governed by the Supreme Court’s decision in
Darden v. Wainwright, 477 U.S. 168 (1986).
The issue is
“whether the prosecutor’s comments so infected the trial with
unfairness as to make the resulting conviction a denial of due
Id. at 181.
The “quantum or weight of the evidence
is crucial to determine whether the prosecutor’s statements
before the jury were so prejudicial as to result in a denial of
Although “an invited response” during
closing arguments does not excuse improper comments, it is used
to determine the effect on the trial as a whole.
Id. at 182.
On remand, the trial judge opined that defense counsel’s
attack on police tactics “really invited a lot of comment back
about the police work that was done.”
(State’s Mem. at
42)(citing ECF No. 15-7 at 46-47.) The appellate court concluded
any overreaching by the prosecutor in defending police conduct
“could not have affected the result.”
This Court agrees.
Massey, 2010 WL 3419186,
Even if the prosecutor was wrong to
suggest the defense was cynical or that it tried to distract the
jury from reviewing the evidence, it is very unlikely the jury
was influenced by this suggestion.
The jury heard from both sides regarding the nature of the
police conduct during investigation, and could make their own
inferences from the facts, and the opposing arguments offered in
As to the effect on the verdict, the trial
was lengthy and the jurors were unlikely to have discarded their
impressions from the presentation of evidence in favor of a
suggestion by the prosecutor regarding the defense tactics.
There was strong evidence against Petitioner.
evidence included an eyewitness identification with
corroborating testimony, Petitioner’s flight from the state, and
Petitioner’s cellmate testifying that Petition had confessed.
On the other hand, evidence supporting Petitioner’s theory that
Gary Way hid an AK-47 in his baggy clothing and that he was the
shooter was weak in comparison.
Considering the weight of the
evidence, it is highly unlikely the prosecutor’s statements were
so prejudicial as to result in a denial of due process.
Therefore, the state court’s decision was not an unreasonable
application of the test announced by the Supreme Court in
The Court will deny Ground Four of the petition.
For the reasons set forth above, the Petition under 28
U.S.C. § 2254 [Doc. No. 26] will be denied on the merits.
appropriate order follows.
CERTIFICATE OF APPEALABILITY
This Court must determine whether Petitioner is entitled to
a certificate of appealability in this matter.
Circuit Local Appellate Rule 22.2.
The Court will issue a
certificate of appealability if the petitioner “has made a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
The discussion of Petitioner’s claims
above demonstrates that Petitioner has not made such a showing,
and this Court will not issue a certification of appealability.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: March 23, 2015
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