COFFIN, Senior Circuit Judge.
Petitioner William Gilday was convicted of first degree murder and two counts of armed robbery for his involvement 25 years ago in a notorious bank robbery in which Boston Police Officer Walter A. Schroeder was killed. This habeas case, originally filed in 1981, was reactivated after disposition of the last of his four unsuccessful motions for new trial in the Massachusetts courts. The district court denied the petition in a comprehensive opinion. 866 F.Supp. 611 (D.Mass.1994). After carefully reviewing the case authorities and relevant portions of the record, we affirm.
We shall provide at this juncture only brief factual background, adding more details in later sections as necessary for an understanding of the issues discussed. A lengthy description of the evidence presented at Gilday's five-week trial is reported in Commonwealth v. Gilday, 367 Mass. 474, 478-485, 327 N.E.2d 851, 854-58 (1975) ("Gilday I"). See also Gilday, 866 F.Supp. at 640-43. A full chronology of the proceedings since his 1972 conviction is set out in the district court's opinion. Id. at 615-16.
Gilday and five others were indicted on robbery and murder charges.
367 Mass. at 477, 327 N.E.2d 851.
On March 10, 1972, Gilday was convicted by a jury and sentenced to death. Following the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and his first motion for new trial, the death sentence was changed to a sentence of life imprisonment. His subsequent efforts to obtain relief from the original convictions have proven unsuccessful.
In this appeal, Gilday argues that he is entitled to a writ of habeas corpus because his trial was replete with constitutional error, and there consequently is substantial reason to believe he was innocent of the charges on which he was convicted. We have considered each of his claims fully, but cannot say that any of the identifiable flaws in the proceedings constituted a deprivation of rights warranting reversal of his convictions. We discuss most of these claims in some detail below. As for the others, the district court's analysis so closely reflects our own thoughts that we find it unnecessary to repeat the discussion and, therefore, adopt its conclusions as our own.
II. Reasonable Doubt Instruction
Gilday claims a host of problems with the trial judge's reasonable doubt instruction, several of which center on language that has been expressly and repeatedly disapproved by this and other courts. Because we agree that this charge was flawed, we have studied its full text and context with particular care in order to answer the relevant constitutional question: "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the [reasonable doubt] standard," Victor v. Nebraska, ___ U.S. ___, ___, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994). Our review is de novo. See Ouimette v. Moran, 942 F.2d 1, 4 (1991) (presumption of correctness for state court findings of fact under 28 U.S.C. § 2254 applies only to "`basic, primary or historic facts'" (citation omitted)).
As we previously remarked when evaluating a strikingly similar instruction in Bumpus v. Gunter, 635 F.2d 907, 910 (1st Cir.
In the end, we have come to the conclusion that the charge overall left the jury with an accurate impression of the substantial burden faced by the prosecution in establishing the defendant's guilt beyond a reasonable doubt. As shall become apparent from our discussion below, none of the problems identified by Gilday is, on its own, of a severity that warrants reversal of his conviction. Indeed, several of the flaws are significantly ameliorated by other aspects of the charge. And, while the cumulative impact of the flaws is itself a separate matter of concern, we are persuaded that it does not rise to the level of constitutional error.
The charge, which spanned 20 paragraphs when reduced to writing,
The judge thus began simply, telling the jurors that a reasonable doubt is an uncertainty "based upon a reason." Petitioner argues that the charge contained such a catalogue of examples of what was not reasonable doubt that the jury was in effect improperly influenced to assign whatever doubt it had to these examples. But tautology is not multiplicity; all of the references carried the identical message: that proof beyond a reasonable doubt is not beyond all
The next six paragraphs contain all of the troubling language. The section begins with a rhetorical question: "[s]o what does it [reasonable doubt] mean?" The judge then answered:
Petitioner directs his fire to four problem areas in these passages: (1) the use of the term "moral certainty," (2) the comparison of the level of certainty necessary for a finding "beyond a reasonable doubt" with the level of certainty applicable to personal decisionmaking, (3) the suggestion in the fourth paragraph that the jury need only weigh the pros and cons before making a decision, followed by the statement suggesting that whether the decision is right or wrong is of equivalent consequence; (4) the possibility that the third of these paragraphs could be understood as inverting the burden of proof by requiring the jurors to find in the evidence so strong a "conviction" of doubt that they would be able to argue for it to their peers in the jury room. We address each of these in turn, and then also consider their cumulative effect.
(1) "Moral Certainty". Equating the concept of reasonable doubt to "moral certainty" may be, in isolation, reversible error. See Victor, ___ U.S. at ___-___, 114 S.Ct. at 1250-51; Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 329, 112 L.Ed.2d 339 (1990) (per curiam); Commonwealth v. Pinckney, 419 Mass. 341, 345-49, 644 N.E.2d 973 (1995). The Supreme Court has discouraged use of this phrase because of its ambiguous meaning, see Victor, ___ U.S. at ___, 114 S.Ct. at 1247-48, and we similarly have expressed concern because "the jury might feel justified in convicting based on a feeling rather than
Indeed, in Cage, the Supreme Court reversed a conviction based on a charge using "moral certainty" language because the only other meaning ascribed to reasonable doubt equated such doubt to "a grave uncertainty" or "an actual substantial doubt." The Court felt that those terms, in conjunction with the phrase "moral certainty," suggested a higher degree of doubt than is required for acquittal.
In Victor, however, the Court upheld the validity of two separate reasonable doubt instructions that contained "moral certainty" language, observing that that language "cannot be sequestered from its surroundings" and finding that the remainder of the charge lent appropriate content to the otherwise ambiguous words. ___ U.S. at ___, 114 S.Ct. at 1248.
As in Victor, the charge here contained far more explanation than was offered to the jury in Cage. The paragraph immediately following the first reference to "moral certainty" distinguishes that level of certitude from mathematical certainty, harking back to the message from the preceding section of the charge. The juxtaposition suggests that the requisite level of confidence was, indeed, substantial, though not proof beyond all doubt. See Pinckney, 419 Mass. at 347, 644 N.E.2d 973.
The lengthy charge also offered additional formulations emphasizing the high level of proof necessary for conviction. Twice during the course of the instruction, the court charged that the jury must attain a "settled conviction" of guilt. In Victor, the Supreme Court ruled that the use of a similar phrase, "abiding conviction," mitigated references to "moral certainty" and "substantial doubt." See ___ U.S. at ___, 114 S.Ct. at 1247 ("`The word "abiding" here has the signification of settled and fixed, a conviction which may follow a careful examination and comparison of the whole evidence.' ... As used in this instruction, ... we are satisfied that the reference to moral certainty, in conjunction with the abiding conviction language, `impress[ed] upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused.'" (quoting Hopt v. Utah, 120 U.S. 430, 439, 7 S.Ct. 614, 618, 30 L.Ed. 708 (1887) and Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979)).
It also is significant in evaluating the effect of the term "moral certainty" that the jury was told more than once that its decision must be based on the evidence presented. See Victor, ___ U.S. at ___, ___, 114 S.Ct. at 1248, 1251. In the third paragraph of this section of the charge, the judge began by noting that "[w]hen you get all through analyzing this evidence, it has to be a doubt nagging your mind, leaving you with an uncertainty of conviction...." Toward the end of the reasonable doubt instruction, the court noted the jurors' oath to render "a true verdict according to the evidence and the law," and earlier cautioned against "strain[ing] the evidence to any conclusion not warranted by its fair convincing force." Thus, as in Victor, the instruction here explicitly told the jurors that their decision had to be based on the evidence in the case, minimizing the possibility that the reference to "moral certainty" would have been viewed as permitting a conviction based "on a feeling rather than on the facts in the case," Drake, 673 F.2d at 21. See ___ U.S. at ___, 114 S.Ct. at 1248. And, also as in Victor, other instructions reinforced this message. See, e.g., Tr. at 4274 ("We look for a verdict which is dictated by your logic and your common sense and not your heart."); id. at 4276 ("It is your sworn duty to presume the defendant innocent and to give him the benefit of that presumption all throughout the trial and at every stage of the investigation of the evidence
(2) "Vital action in your everyday lives." Comparing "beyond a reasonable doubt" to the "degree of satisfaction of mind and conscience that jurors should have when they take action in the major affairs of their lives" is an analogy that has drawn criticism for decades. See Drake, 673 F.2d at 20 (noting Supreme Court's expressed displeasure of the "willing to act" instruction in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954)). Even when framed in the more accepted format of comparing reasonable doubt to a doubt that would cause a prudent person to hesitate before acting, the instruction is arguably unhelpful. See, e.g., Victor, ___ U.S. at ___, 114 S.Ct. at 1252 (Ginsburg, J., concurring).
(3) Pros and cons; right and wrong. Read on their own, the opening sentences of the last paragraph in this section unquestionably present an inadequate articulation of the substantial and unique burden of proof born by the prosecution in a criminal case. Read in context, however, the thrust of these passages was to inform the jurors that a "settled conviction of mind" must be reached to find the defendant guilty. Immediately following the reference to right and wrong, the judge stated:
This explanation makes manifest that the previous comments, though poorly framed, were another restatement of the concept voiced repeatedly by the judge that absolute certainty was unnecessary. The jurors' decision will not necessarily be error-free: "we may be wrong." What is crucial, the jurors are told, is whether they can reach a "settled conviction" of guilt. We therefore conclude that the language of this paragraph, though far from ideal, was unlikely to be understood in its entirety in the overly casual way suggested by the opening sentences in isolation.
(4) Inversion of burden of proof. The third paragraph of this section of the charge contained two sentences, the first of which told the jurors: you have a reasonable doubt
The second sentence was much more direct: "And if you don't believe in it yourself, you haven't got a reasonable doubt."
Although the district court viewed the second sentence as a mistake that may have suggested an inversion of the burden of proof, it felt that the preceding sentence "plainly referred to a `conviction' that the defendant was guilty as charged," not to a "conviction", i.e., a belief, in a doubt. 866 F.Supp. at 618. It therefore felt that no misimpression was given. Our view is essentially the same. The first sentence clearly refers to the certainty a jury must feel as to conviction. As for the second sentence, the concept of having a belief or a moral certainty in a doubt (which in itself is a state of uncertainty) is, we think, a strange and awkward way of referring to the strength of one's doubt. The likely effect would have been to confuse, not to encourage an inversion of the burden of proof.
In addition, this paragraph was one of twenty in the charge, which began with a statement that "[i]t is the burden of the Commonwealth to establish its case beyond a reasonable doubt," and which concluded with several paragraphs emphasizing the defendant's "absolute right to hold the Commonwealth to this strictness of proof." We therefore find no reasonable likelihood that the jurors entered their deliberations with the false impression that petitioner had the burden of establishing a reasonable doubt.
(5) Cumulative effect. As we have discussed, none of the multiple deficiencies in the second portion of the charge was of sufficient magnitude to weaken the conviction. Taken together, however, their effect is more substantial. Reasonable doubt is defined with the imperfect term "moral certainty," and one alternative explanation of moral certainty is the disfavored formulation concerning personal decisionmaking. Yet another description of reasonable doubt and moral certainty suggests that the jury's task is simply a matter of weighing the pros and cons to reach a decision that "may be right" or "may be wrong." A central passage defining reasonable doubt is largely impenetrable, though its language taken literally could be understood to impose a burden of proving doubt on the defendant. And we have expressed our discomfort with the first portion of the charge, which at great length reiterates that the government's burden should not be overestimated.
If these two sections comprised the entire instruction, we might well conclude that reversal would be necessary. Of greatest significance to our contrary conclusion is the fact that, at the conclusion of the portions of the charge we have quoted so far, the judge essentially began anew, telling the jury, "so there will just be no doubt about what reasonable doubt means, I am going to define it in the precise and more scholarly language of our Supreme Judicial Court." In the next eight paragraphs, he presents the then-acceptable charge on reasonable doubt from Commonwealth v. Madeiros, 255 Mass. 304, 307-08, 151 N.E. 297 (1926), see Pinckney, 419 Mass. at 348, 644 N.E.2d 973, together with language emphasizing the importance of the reasonable doubt standard to our system of jurisprudence.
To the extent that specific portions of the instruction up to this point had been less than clear, the jury explicitly was told that this restatement was equivalent and complete. Although the judge repeated in this part of the instruction the "moral certainty" phraseology, he contrasted a moral certainty only with an absolute or mathematical certainty. See Pinckney, 419 Mass. at 347, 644 N.E.2d 973 (finding that the identical language "properly impressed upon the jury the need to reach a subjective state of near certitude of the guilt of the accused"). See also supra at 262-63. Moreover, the judge again emphasized that the proof must leave "reasonable men" with "a clear and settled conviction of guilt," and, failing that, the defendant must be found innocent. With the language discouraging a verdict for the prosecution unless based on the law and the evidence, this alternative charge was entirely correct. In our view, even the cumulative effect of the earlier imperfections was offset by this lengthy and independent charge, which the judge praised to the jury as "precise and more scholarly."
In sum, this instruction possessed a number of flaws, as did the instructions reviewed in Victor. As we look at some of the less defensible language, we find it difficult to say that a juror could not have been led astray. But as the Court reminded us in Victor, ___ U.S. at ___, 114 S.Ct. at 1243, the standard is not "could have" but rather: is there a reasonable likelihood that the jury understood the instruction as a whole to permit conviction based on a level of proof below that required by the Due Process Clause? Our review convinces us that there was no such likelihood in this case. Accordingly, it
III. Brady/Giglio Claims
Gilday contends that the government's failure to disclose cooperation agreements with two accomplices who testified as prosecution witnesses, and the failure to correct their false testimony that no deals were made, violated his due process rights as established in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).
We begin our discussion by noting the relevant standards. A Brady error occurs when the prosecution suppresses "material" evidence that is favorable to the accused. See Kyles v. Whitley, ___ U.S. ___, ___, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995). In most circumstances, exculpatory evidence is material only "`if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,'" id. (quoting United States v. Bagley, 473 U.S. 667, 682, 685, 105 S.Ct. 3375, 3383, 3385, 87 L.Ed.2d 481 (1985)).
A standard of materiality more favorable to the defendant applies, however, when previously undisclosed evidence reveals that the prosecutor knowingly used perjured testimony or, "equivalently," knowingly failed to disclose that testimony used to convict the defendant was false. Bagley, 473 U.S. at 678-80, 105 S.Ct. at 3381-82. In such situations, "`a conviction ... is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury,'" Kyles, ___ U.S. at ___ n. 7, 115 S.Ct. at 1565 n. 7 (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976)) (emphasis added).
Although the tests for materiality suggest a harmless error-like inquiry, it is important to note that these standards must be applied to determine the threshold question: has constitutional error occurred? Only then does the issue of harmlessness arise. And, as the Supreme Court's recent decision in Kyles makes clear, see ___ U.S. at ___, 115 S.Ct. at 1567, the approach to harmless error in the Brady/Giglio context has evolved as the Chapman formulation of "harmless beyond a reasonable doubt" has yielded in habeas cases to the softer Brecht test of whether the error "`had substantial and injurious effect or influence in determining the jury's verdict,'" Brecht v. Abrahamson, ___ U.S. ___, ___, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)).
In Kyles, the Court observed that harmless error analysis is inapplicable to a Brady/Giglio claim arising in a habeas case outside the perjury-related context. ___ U.S. at ___ & n. 7, 115 S.Ct. at 1565 & n. 7 (noting that "our decision today does not address any
But a prosecutor's knowing use of false testimony presents a different analytical situation. As Bagley makes clear, a petitioner is given the benefit of a friendly standard (hostile to the prosecution) to establish materiality: whether a reasonable jury could have been affected. 473 U.S. at 678-80, 105 S.Ct. at 3381-82. This is, in essence, the old Chapman inquiry. Id. at 679-80 & n. 9, 105 S.Ct. at 3382 & n. 9. Applying this standard in most cases involving perjury or its equivalent will likely result in a finding of constitutional error. Scaling that lower materiality hurdle, however, still will leave the petitioner facing the Brecht harmless error inquiry into whether the perjured testimony in fact had a substantial and injurious effect or influence on the jury's verdict.
Having laid out this framework, we now turn to petitioner's claims.
A. Prosecutorial agreements with Fleischer and Valeri
Petitioner argues that the government deliberately relied on the false testimony of two witnesses, Fleischer and Valeri, who denied that any deals had been made with the prosecution for their cooperation. The district court, like the Commonwealth courts before it, concluded that no error occurred with respect to Valeri because his acknowledgement at trial of "a generalized expectation of leniency" (i.e., that his cooperative trial testimony would be brought to the court's attention) served to disclose his possible motivation to testify favorably for the government. We agree with this determination essentially for the reasons expressed by the district court, and do not address it further. See 866 F.Supp. at 634-36.
The Supreme Judicial Court did conclude, however, that the government improperly failed to disclose a deal made with the attorney for the other witness, Fleischer. Called in rebuttal, Fleischer testified most crucially that, in a discussion shortly after the robbery, Saxe and Power accused Gilday of being "trigger-happy" and that Gilday said, "What did you want me to do, the cop was right there, he was only thirty seconds behind you."
In cross-examination, Fleischer specifically denied that any deals had been made for his testimony, and testified further that his only promise from the Commonwealth was that high bail would be requested but not demanded. In fact, as found by a Superior Court judge following a hearing on petitioner's motion for new trial, the prosecutor had told Fleischer's attorney that, in exchange for Fleischer's testimony, he would attempt to reach a disposition of the charges against Fleischer that would leave him with no criminal record.
The Supreme Judicial Court noted that neither the lack of a formal agreement with Fleischer nor Fleischer's lack of knowledge of the specifics of the understanding relieved
Our review of the determination that the prosecutor had a duty to disclose the Fleischer arrangement is de novo. See Ouimette, 942 F.2d at 4. We apply the Agurs standard of materiality, more favorable to the petitioner, because of the prosecutor's deliberate strategy to misrepresent Fleischer's credibility and the knowing acquiescence in Fleischer's false testimony. See id. at 11; see also supra at 267.
As we have explained, the relevant inquiry is whether there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. To put the question the other way around: can we say that no reasonable jury could have been affected by the undisclosed information? We think the answer is fairly obvious. The information withheld by the prosecutor would have provided the basis for powerful impeachment of Fleischer's testimony. Not only did Fleischer deny that any deals had been struck on his behalf, but he also claimed that he was testifying only because a man had been killed and he wanted to "see justice done."
The fact that his lawyer and the prosecutor had come to an understanding would have markedly strengthened the defense's claim that Fleischer was highly motivated to implicate Gilday to protect himself. First, it would have permitted the jury reasonably to infer that, even if the "wink and nod" deal had not been explicitly communicated to Fleischer, he must have been given some indication that testimony helpful to the government would be helpful to his own cause. Cf. Bagley, 473 U.S. at 683, 105 S.Ct. at 3384 (making reward contingent upon outcome "served only to strengthen any incentive to testify falsely in order to secure a conviction"). In addition, evidence of the deal would have reinforced the testimony of defense witness Bond, another accomplice, who implicated Fleischer as the gunman. The stakes for Fleischer were substantial indeed if his testimony blaming someone else could secure his release entirely from criminal responsibility for a murder he had committed; his motivation to lie could not have been greater.
Disclosure of the deal in all likelihood would have reduced substantially, or even destroyed, Fleischer's credibility. Because the direct accusation of an accomplice is of more than minimal consequence in a case where the defense is that someone else was responsible for the charged crime, we think it at least reasonably likely that the suppression of this evidence could have affected the jurors' judgment. Presumably, the government agrees with this assessment; for what other reason would the prosecutor have gone to such lengths to keep the information from them?
Recognition of error does not end our task, however. Although we have determined that the jury might have been affected by knowledge of Fleischer's deal, and thus that the prosecution's suppression of the evidence violated its constitutional obligation under Brady and Giglio, we also must consider—to restate the Brecht standard—whether the error was of such magnitude that it actually casts doubt on the integrity of the verdict. This is the difference between a possibility and a probability. See O'Neal v. McAninch, ___ U.S. ___, ___, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995) (to find harmlessness, reviewing court must conclude that error more likely than not had no effect on the verdict). Our review of the evidence indicates that, even if the jury had assigned no weight to Fleischer's testimony, the substance
Indeed, Fleischer was a rebuttal witness, and as such simply repeated the earlier testimony of another witness, Valeri, that Gilday had admitted to being the shooter. Valeri had reported that Gilday was at the scene of the robbery in the car from which the shots were fired, that Gilday possessed the murder weapon after the crime, and that Gilday said that he had waited at the scene of the robbery until the police officers arrived because "he had always wanted to shoot a police officer."
Three eyewitnesses testified, all disinterested outsiders who were in close proximity to the shooting. The strongest, Becker, made an in-court identification of Gilday, who was sitting unobtrusively with spectators. He also had chosen Gilday's picture from a spread of photographs shown to him two months after the shooting. He further recalled at trial, after having stood up to make his identification, that the gunman, like himself (and like Gilday), had a little bald spot on the top of his head. Cross-examination elicited that the only description Becker had given police at the time of the shooting was that the gunman was a white male and that he probably had seen Gilday's picture in the media; while acknowledging the possibility that this influenced him, he insisted that his identifications were based solely on his observations at the time of the crime.
A second witness, Goddard, described the gunman as a white male in his late thirties, clean-shaven, with a receding hairline, hair combed straight back, wearing an olive jacket—all consistent with Gilday's appearance. True, he did not pick out Gilday's picture from spreads shown him on the day of the shooting, or two weeks later. On the first occasion, he saw "a couple of pictures that resembled the man that I saw" but did not pick them out because he was not sure. On the second occasion, he had seen Gilday's picture in the papers and recognized it in the spread.
The third witness, Gaudette, described the gunman as of medium build, similar to himself, with weight around 185 pounds, height five feet six or seven inches, in his thirties, with dark hair. He picked Gilday's picture out of a photospread two months after the shooting. Then, in the courtroom, he failed to identify Gilday, who was not wearing glasses at the start of Gaudette's perusal but put them on as Gaudette continued his scrutiny.
On the whole, we consider this eyewitness evidence, while not without weaknesses, impressive. Further, the evidence was overwhelming that Gilday was involved in the crime. In his own testimony, he acknowledged that he had bought the semiautomatic weapon and one of the cars that had been used in the robbery and murder, that he had stolen a license plate and affixed it to another car used by the robbers, and that he took some of the holdup money from an apartment where Bond, Saxe, Power and Fleischer were gathered after the crime. In addition, an acquaintance of the group, McGrory, testified to a conversation with Gilday after the robbery about McGrory's having figured out who was responsible for the crime. McGrory stated that, during the exchange, Gilday first claimed that he had not heard that a police officer had been critically wounded, but later said "I did it" and warned that even if Gilday were imprisoned on death row, he would take care of McGrory if he said anything.
While neither the activities to which Gilday confessed nor McGrory's testimony require a finding that Gilday was the gunman
In sum, we are persuaded that suppression of the Fleischer agreement did not have a substantial and injurious effect or influence in determining the jury's verdict. The nature of the other evidence makes it unlikely that even a stinging impeachment of Fleischer based on the undisclosed deal would have had the requisite impact on the jury's deliberations.
B. Eyewitness and other statements.
Petitioner also claims error in the government's failure to disclose exculpatory evidence from three witnesses: (1) a statement by Michael Finn shortly after the crime that described the gunman in terms inconsistent with Gilday's appearance; (2) an FBI report that Bernard Becker, who identified Gilday as the gunman at trial, stated three weeks after the crime that he could not provide a description of the gunman; (3) a report that Fleischer initially denied knowing Gilday when asked by the FBI. To determine the materiality of these pieces of undisclosed evidence, we apply the Bagley test: whether there is "`a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,'" Kyles, ___ U.S. at ___, 115 S.Ct. at 1565 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. at 3383).
Only two merit more than passing discussion.
As for Becker, while we appreciate that statements made in close temporal proximity to the crime are significant in evaluating an eyewitness's reliability, see Kyles, ___ U.S. at ___, 115 S.Ct. at 1569 (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977)), we think it only of modest importance that his identification of petitioner was preceded by an earlier inability to provide a description. The fact that someone cannot articulate a description of an individual does not necessarily
Moreover, Becker's testimony at trial essentially reflected the fact that he was unable to give a description at the time of crime. He stated that he told the police only that the shooter was "[a] white male," acknowledging that he provided "[n]o other distinguishing characteristics or descriptions." In these circumstances, we think the withheld FBI report would have had a minimal effect upon the jury.
C. Cumulative Impact.
In its recent decision in Kyles v. Whitley, the Supreme Court stressed the importance of considering the cumulative effect of all suppressed evidence in determining whether a Brady violation has occurred. ___ U.S. at ___, 115 S.Ct. at 1567. The Court concluded that, had the prosecution disclosed to competent counsel the substantial amount of evidence at issue there, a different result would have been reasonably probable;
The circumstances here are markedly different. While the various pieces of suppressed evidence in Kyles fit together factually to make the defense theory of the case more likely, the evidence here taken cumulatively sheds no new light on the crime or petitioner's involvement in it. The suppressed material went primarily to the credibility of witnesses, one of whom (Becker) acknowledged at trial information equivalent to the undisclosed evidence. The only significantly potent undisclosed material was the Fleischer agreement;
IV. Sandstrom Claims
Petitioner argues that the trial judge's charge to the jury included five mandatory presumptions of intent that violated his due process rights as established in Sandstrom v. Montana, 442 U.S. 510, 520-24, 99 S.Ct. 2450, 2457-59, 61 L.Ed.2d 39 (1979).
The SJC reviewed the instructions on intent only as they related to the issue of intoxication. The court ruled that the intoxication portion of the charge correctly reflected the law at the time of petitioner's trial, and that he was not entitled to retroactive application of a change in the law that was announced thirteen years later. See Commonwealth v. Gilday (Gilday III), 409 Mass. 45, 47, 564 N.E.2d 577, 579 (1991). The court found that no other assertion of instructional error, including the more general Sandstrom claims, had been raised in the relevant (fourth) motion for new trial. It therefore held that such additional claims were waived. Id., 409 Mass. at 46 & n. 3, 564 N.E.2d at 578 & n. 3.
The district court did not explicitly address the intoxication issue. Petitioner raises it on appeal in limited fashion, recognizing that we previously have declined to disturb the SJC's determination that Henson's protection of the intoxication defense is not retroactive. See Robinson v. Ponte, 933 F.2d 101, 103-05 (1st Cir.1991). We decline to revisit that precedent here, and the claim is therefore unavailing.
As for the general Sandstrom claims, the district court gave two reasons for rejecting them. First, it concluded that petitioner was not entitled to protection from the Sandstrom rule because that case was decided after his conviction became final, and, under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the principle established there was not retroactive. Second, the court held that the SJC's refusal to consider the "non-intoxication claims" based on petitioner's procedural default constituted an independent state law ground for rejecting those claims, thus barring habeas review unless the petitioner can show "cause for", and "prejudice from" his noncompliance with the Commonwealth's procedures. See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977); Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir.1994).
We need not delve into the retroactivity issue because we agree with the district court's judgment that the non-intoxication Sandstrom claims are procedurally barred. Petitioner's fourth motion for new trial and his memorandum in support of the motion focused entirely on the effect of the intoxication instruction on the jury's determination of intent. Although the memorandum cited to Sandstrom and related precedent, i.e., In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), it is apparent to us that those cases were invoked in support of the intoxication argument and not as a basis for a general challenge to the presumptions on intent contained in the instruction. In these
V. Pretrial Publicity
Petitioner contends that he was denied his right to a fair trial because of extensive pretrial publicity, specifically claiming that the trial judge erred in denying his motion for an additional continuance of the trial date and for a change of venue.
Essentially for the reasons expressed by the Supreme Judicial Court and the district court, we find no reversible error in the trial judge's handling of the case in this respect. See Gilday I, 367 Mass. at 491-93, 327 N.E.2d at 861-62; Gilday v. Callahan, 866 F.Supp. at 623-24.
VI. Conclusion
We have examined with care each of petitioner's claims of constitutional error. Having found that the only meritorious claim — the Brady violation in suppressing the Fleischer agreement—was harmless, we affirm the judgment of the district court denying petitioner's writ of habeas corpus.
Affirmed.
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