Cronin v. Commissioner of Probation , 783 F.3d 47 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1580
STEPHEN CRONIN,
Petitioner, Appellant,
v.
COMMISSIONER OF PROBATION,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Barron, Selya and Stahl,
Circuit Judges.
Edward Crane, with whom Law Office of Kevin Crane was on
brief, for appellant.
Todd M. Blume, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, was on brief, for
appellee.
April 7, 2015
SELYA, Circuit Judge. In Doyle v. Ohio, 426 U.S. 610
(1976), the United States Supreme Court proscribed the
prosecution's use of a defendant's post-Miranda silence in a
criminal case. See id. at 619. This state habeas case implicates
that proscription. After careful consideration, we conclude that
even if the Massachusetts Appeals Court (MAC) misapplied the Doyle
rule — a matter on which we take no view — any comment on the
petitioner's silence was harmless when considered in the context of
the trial as a whole. Consequently, we affirm the district court's
denial of habeas relief.
I. BACKGROUND
We briefly rehearse the factual and procedural
background. In May of 2009, petitioner-appellant Stephen Cronin
was charged in a Massachusetts state court with operating a motor
vehicle under the influence of alcohol, third offense, and
negligent operation of a motor vehicle. See Mass. Gen. Laws ch.
90, § 24(1)(a)(1), (2)(a). At trial, Officer David Jordan
testified that he witnessed a van veer into a motel parking lot in
Braintree, drive across a traffic island, and twice stop abruptly
before parking haphazardly. Officer Jordan approached the van on
foot, keeping in view the driver (whom he identified as the
petitioner). Officer Brian Eng, who was called to the scene to
provide backup, testified that the petitioner stated that he was
coming from Jamaica Plain and had consumed a few cocktails.
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Following a failed field sobriety test, the petitioner was
arrested. At some point during the booking process, the petitioner
was given written Miranda warnings, see Miranda v. Arizona, 384
U.S. 436, 444 (1966), and invoked his right to remain silent.
The petitioner testified to a starkly different version
of the relevant events. He claimed that he had not been driving
the van; rather, Michelle Sires (his quondam roommate) drove the
van back to the motel after running an errand. The petitioner had
been drinking beer at the motel for most of the day and became
involved with the police, he said, only when he went to the van
that Sires had parked to retrieve a pack of cigarettes from the
glove compartment. Officer Jordan confronted the petitioner just
as he exited the driver's side door, cigarettes in hand. The
petitioner further testified that he told the officers that he was
not the driver.
After eliciting this testimony, defense counsel asked:
"Did you ever tell [the officer] that your friend Michelle was
actually the driver of the van?" The petitioner replied in the
negative. When defense counsel asked "Why didn't you do that?" the
petitioner responded, "Because she had a couple of warrants on
her."
The prosecutor's cross-examination began as follows:
Q: Good afternoon. So you never told
the officers anything about what you're
telling us today?
A: What's that?
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Q: About Michelle.
A: No. No.
Q: You never told either of these
officers?
A: No.
Q: You never told them during the
course of your booking?
A: No.
Q: You thought you were arrested
wrongly for a crime you didn't do?
A: Yes.
Q: But you never told the police
anything about this over the hours you were
with them?
A: No.
Michelle Sires did not testify (according to the petitioner, she
had moved to Florida shortly after his arrest).
In his closing argument,1 the prosecutor pointed out a
number of inconsistencies between the officers' account and that of
the petitioner, and then stated,
He never said anyone else was driving. He
said nothing about this Michelle individual
. . . . Michelle never came out . . . if this
person even exists; if she does exist, if she
was even there . . . . He's concerned about
this other person who has warrants; and yet,
he's getting arrested, and he says nothing.
Does that make any sense that someone would
actually do that in . . . some sort of
. . . chivalrous act that he'd do for this
other individual?
1
While the petitioner did not make a contemporaneous
objection to either the prosecutor's line of questioning or closing
argument, he did move in limine to preclude reference to his "lack
of cooperation," citing Doyle. The trial justice denied this
motion prior to trial. Under Massachusetts practice, the denial of
a pretrial motion in limine seeking to preclude the introduction of
evidence on constitutional grounds is reviewable without further
objection at trial. See Commonwealth v. Whelton, 696 N.E.2d 540,
543 (Mass. 1998).
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In her summation, defense counsel asserted that the
petitioner "told the officers that he was not driving, but he did
not tell them that Ms. [Sires] was driving. He did not tell them
because she had warrants out for her arrest, and he did not want
her to get in trouble." She suggested that "[t]he only thing that
Mr. Cronin may be guilty of is misguided chivalry."
The jury rejected the petitioner's exculpatory tale and
found him guilty. The trial justice sentenced the petitioner to a
term of imprisonment followed by a term of probation.
The petitioner appealed. Pertinently, he complained that
the prosecutor's cross-examination and closing argument constituted
constitutionally forbidden commentary on his post-Miranda silence.
The MAC spurned this plaint, see Commonwealth v. Cronin, 978 N.E.2d
592 (Mass. App. Ct. 2012) (table), full text at 2012 WL 6027750,
and the Supreme Judicial Court summarily denied the petitioner's
application for further appellate review, see Commonwealth v.
Cronin, 982 N.E.2d 1188 (Mass. 2013) (table).
The petitioner repaired to the federal district court in
search of habeas relief, see 28 U.S.C. § 2254, naming as the
respondent the Commissioner of Probation of the Commonwealth of
Massachusetts. The district court rebuffed his habeas petition,
see Cronin v. Comm'r of Prob., No. 13-11169, 2014 WL 1784056, at *6
(D. Mass. May 2, 2014), but issued a certificate of appealability,
see 28 U.S.C. § 2253(c), limited to the question of whether the
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MAC's decision was contrary to or an unreasonable application of
the Doyle rule. This timely appeal followed. While the petitioner
has fully served the incarcerative portion of his sentence, he
remains on probation and, thus, in custody for federal habeas
purposes. See 28 U.S.C. § 2254(a); Jackson v. Coalter, 337 F.3d
74, 78-79 (1st Cir. 2003).
II. ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, governs federal
habeas review of state-court convictions. See id. § 104, 110 Stat.
at 1218-19 (codified as amended at 28 U.S.C. § 2254). Under the
AEDPA's peculiarly deferential standards, error by a state court,
without more, is not enough to warrant federal habeas relief. See
McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc).
The AEDPA contemplates increments of error: to warrant habeas
relief, the last reasoned state-court decision must be not only
erroneous but also "contrary to," or infected by "an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1);
see Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). In conducting
this inquiry, state-court factual findings are presumed correct,
and that presumption may be overcome only by clear and convincing
proof. See 28 U.S.C. § 2254(e)(1); Ouber v. Guarino, 293 F.3d 19,
27 (1st Cir. 2002).
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Under the first furculum of the AEDPA regime, a decision
is contrary to clearly established federal law either if it
announces a rule of law that directly contradicts existing Supreme
Court precedent or if the state court has reached a different
result than the Supreme Court on materially indistinguishable
facts. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000);
Foxworth v. St. Amand, 570 F.3d 414, 424 (1st Cir. 2009). Under
the second furculum, an unreasonable application of clearly
established federal law occurs when:
the state court correctly identifies the
governing legal principles, but (i) applies
those principles to the facts of the case in
an objectively unreasonable manner; (ii)
unreasonably extends clearly established legal
principles to a new context where they should
not apply; or (iii) unreasonably refuses to
extend established principles to a new context
where they should apply.
Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007).
That these standards are strict is no accident. The
Supreme Court has admonished that federal habeas relief is to be
granted only sparingly and is reserved for cases in which "there is
no possibility fairminded jurists could disagree that the state
court's decision conflicts with this Court's precedents."
Harrington v. Richter, 131 S. Ct. 770, 786 (2011); see Janosky v.
St. Amand, 594 F.3d 39, 47 (1st Cir. 2010) ("To justify federal
intervention, the state court's application must be both incorrect
and unreasonable."). And even if the state court's decision fails
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this deferential test, federal habeas relief will not follow unless
the error had a "substantial and injurious effect or influence in
determining the jury's verdict." Brecht v. Abrahamson, 507 U.S.
619, 638 (1993) (quoting Kotteakos v. United States, 328 U.S. 750,
776 (1946)).
With this analytic framework in place, we turn to the
case at hand. Our review of the district court's disposition of a
habeas petition is de novo. See Lynch v. Ficco, 438 F.3d 35, 44
(1st Cir. 2006).
Here, the last reasoned state-court decision is that of
the MAC. The petitioner submits that the MAC's decision was both
contrary to and an unreasonable application of clearly established
federal law because the prosecutor's questions and comments about
his failure to mention Michelle at or after the time of arrest
contravened Doyle and, therefore, abridged his right to due
process.2
Under the AEDPA, clearly established federal law is that
articulated by the Supreme Court, not that articulated by lower
federal courts. See 28 U.S.C. § 2254(d)(1); Renico v. Lett, 130 S.
Ct. 1855, 1865-66 (2010). Both sides acknowledge that the clearly
2
The petitioner concedes that no due process violation occurs
when a prosecutor uses a defendant's pre-Miranda silence to impeach
his trial testimony. See Fletcher v. Weir, 455 U.S. 603, 607
(1982) (per curiam); Jenkins v. Anderson, 447 U.S. 231, 240 (1980).
For present purposes, we assume (favorably to the petitioner) that
at least some of the questions and comments at issue were directed
at the petitioner's post-Miranda silence.
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established federal law governing this claim derives from the
Supreme Court's decision in Doyle. There, the defendants claimed
for the first time at trial that they had been framed. See 426
U.S. at 612-13. The state courts permitted the prosecution to
impeach this claim by asking why the defendants had not related the
frame-up story to the authorities at the time of arrest. See id.
at 613-16. The defendants argued that this tactic violated their
constitutional rights, and the Supreme Court agreed. See id. at
616, 619.
The Court began by explaining that the Miranda warnings
convey an implicit assurance to anyone who receives them that
"silence will carry no penalty." Id. at 618. Citing this implicit
assurance, the Court held that the prosecution's use of a
defendant's post-Miranda silence for impeachment purposes was
"fundamentally unfair" and, thus, offended the Due Process Clause.
Id. at 618-19. "[T]he unfairness occurs," the Court explained,
"when the prosecution, in the presence of the jury, is allowed to
undertake impeachment on the basis of what may be the exercise of
[the] right [to remain silent]." Id. at 619 n.10; see Wainwright
v. Greenfield, 474 U.S. 284, 292 (1986) ("The point of the Doyle
holding is that it is fundamentally unfair to promise an arrested
person that his silence will not be used against him and thereafter
to breach that promise by using the silence to impeach his trial
testimony."). The Court reasoned that "every post-arrest silence
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is insolubly ambiguous" because "[s]ilence in the wake of [Miranda]
warnings may be nothing more than the arrestee's exercise of these
Miranda rights." Doyle, 426 U.S. at 617.
Viewed against this backdrop, we can swiftly dispose of
the petitioner's assertion that the MAC's decision in this case was
contrary to Doyle. Although the contested cross-examinations in
each case bear a family resemblance to one another, the direct
examinations were quite different. Unlike in Doyle, the petitioner
testified at some length on direct examination about his statements
to the police, including his claim of innocence at or around the
time of his arrest. He tried to bolster his tale by offering an
explanation for his failure to disclose the actual driver's
identity at an earlier time. This stands in marked contrast to
Doyle, where the defendants did not raise — much less affirmatively
explain — their post-arrest silence on direct examination.
In upholding the petitioner's conviction, the MAC relied
on this distinction: it noted that the petitioner himself had
brought up the subject of his post-arrest silence and tried to
wield it affirmatively in marshaling his defense. It therefore
concluded that the prosecution was entitled to cross-examine him
"as to his postarrest silence because [his] explanation for his
silence was the basis for his defense." Cronin, 2012 WL 6027750,
at *1. The petitioner's use of silence as a sword rather than a
shield sufficiently distinguishes this case from Doyle to defeat a
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claim that the MAC's decision is contrary to clearly established
federal law. See Williams, 529 U.S. at 406.
The more vexing question is whether the MAC unreasonably
applied Doyle either by construing it in an objectively
unreasonable manner or by refusing to extend it to the facts at
hand. In this regard, the petitioner insists that the MAC
misapprehended the limits that Doyle placed on the scope of cross-
examination after a defendant opens the door by affirmatively
raising the fact of his silence.
The petitioner concedes that his "introduction and
explanation of his silence opened the door for the prosecutor to
argue that this explanation was not credible," but contends that
the prosecutor transgressed the letter (or at least the spirit) of
Doyle when he "argued that the [petitioner's] silence was itself
inconsistent with innocence." Appellant's Br. at 17-18. At oral
argument, the petitioner identified a single sentence of the
prosecutor's cross-examination as the embodiment of this
transgression: "But you never told the police anything about this
over the hours you were with them?" In context, the meaning of
"this" is ambiguous: it might refer, as the Commonwealth contends,
to the petitioner's testimony about Michelle (a concededly
permissible inquiry). But it also might refer, as the petitioner
contends, to the petitioner's belief that he was "arrested wrongly
for a crime [he] didn't do" (arguably a Doyle violation).
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We need not resolve this dispute. Even were we to
conclude that a Doyle error occurred and that the MAC faltered in
this respect — matters upon which we take no view — the
petitioner's cause would not be advanced. We explain briefly.
For an improper question or comment to warrant relief
under the AEDPA, the question or comment must have had a
"substantial and injurious effect or influence in determining the
jury's verdict." Brecht, 507 U.S. at 637 (quoting Kotteakos, 328
U.S. at 776). Here, as in Brecht, the evidence of guilt "was, if
not overwhelming, certainly weighty." Id. at 639. The
Commonwealth offered competent evidence that the petitioner was
seen driving the van erratically, failed a field sobriety test, and
admitted to police that he was returning from Jamaica Plain (where
he had consumed a few cocktails). While a reasonable jury might
have accepted the petitioner's version of events, the jury in this
case surely was entitled to reject that version in favor of the
officers' account.
In all events, the prosecutor's ambiguous question on
cross-examination constituted, at most, a single misstep among
extensive and permissible references to the petitioner's silence.
As the petitioner conceded at oral argument, nearly all of the
prosecutor's references to the petitioner's silence were plainly
directed at the credibility of the petitioner's late-blooming story
about Michelle. See United States ex rel. Saulsbury v. Greer, 702
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F.2d 651, 655-56 (7th Cir. 1983). Furthermore, the record does not
reveal the timing of the Miranda warnings given to the petitioner.
Consequently, many (if not all) of these references can be
reasonably understood as comments on pre-Miranda silence, which are
not constrained by Doyle. See Fletcher v. Weir, 455 U.S. 603, 606
(1982) (per curiam); Jenkins v. Anderson, 447 U.S. 231, 240 (1980).
It follows that the jury knew from admittedly proper evidence (some
of which was generated by the petitioner himself) about the
petitioner's silence and doubtless would have drawn its own
conclusions — favorable or otherwise — about the significance of
that silence. Silhouetted against this background, the
prosecutor's ambiguous reference to the petitioner's post-Miranda
silence, even if proscribed, was "in effect, cumulative," and thus
harmless. Brecht, 507 U.S. at 639.
We think, too, that the prosecutor's closing argument
mitigated any possible bevue in his cross-examination. The thrust
of the argument was that no one is so chivalrous as to refrain from
pointing the finger at the real culprit when doing so would head
off a wrongful arrest: if Michelle really existed and if she was
the driver, her outstanding warrants were not a credible reason for
failing to mention her to the police. This was a permissible line
of argument, and likely steered the jury's attention away from a
direct inference of guilt from silence and toward a permissible
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inference that the professed reason for the petitioner's silence
(misguided chivalry) was incredible.
In the last analysis, impeachment of one part of a
defendant's testimony (his ostensible justification for remaining
silent) has a natural tendency to encourage the jury to discredit
the rest of his testimony (including his claim of innocence). See
Saulsbury, 702 F.2d at 656. To the extent that an inference that
the petitioner's explanation was bogus necessarily bled into an
inference that his silence undercut his claim of innocence, we are
on this record "not persuaded that the rather sophisticated
distinction between permissible comment on credibility and
impermissible comment on an inference of guilt justifies a reversal
of th[is] state conviction[]." Doyle, 426 U.S. at 636 (Stevens,
J., dissenting); see Saulsbury, 702 F.2d at 656 (adopting this
reasoning).
We need go no further. Under the Brecht standard,
federal habeas relief in unavailable to the petitioner unless he
can show "actual prejudice" from the purported Doyle violation.
Brecht, 507 U.S. at 637. Seen in the setting of the trial as a
whole, he has failed to clear that high bar. Accordingly, the
district court did not err in denying habeas relief.
Affirmed.
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