United States Court of Appeals
For the First Circuit
No. 18-1862
JOSENER DORISCA,
Petitioner, Appellant,
v.
RAYMOND MARCHILLI,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Andrew S. Crouch for appellant.
Thomas E. Bocian, Assistant Attorney General, with whom Maura
Healey, Attorney General of Massachusetts, was on brief, for
appellee.
October 23, 2019
THOMPSON, Circuit Judge. After a jury convicted
Petitioner Josener Dorisca ("Dorisca") of second-degree murder, he
was sentenced to life in prison with the opportunity of parole
after fifteen years. When his state court appeals were denied, he
turned to the federal court: seeking a writ of habeas corpus, 28
U.S.C. § 2254, in the United States District Court for the District
of Massachusetts, he alleged a violation of his right to
confrontation and a violation of due process. The district court
denied the petition, and now before this court, Dorisca challenges
that dismissal. After due consideration, and bound by the tight
(to say the least) parameters of the Antiterrorism and Effective
Death Penalty Act ("AEDPA"), we affirm.
BACKGROUND
As we lay out the relevant facts and travel, we are
mindful that, "[w]hen we consider a state conviction on habeas
review, we presume the state court's factual findings to be
correct." Hensley v. Roden, 755 F.3d 724, 727 (1st Cir. 2014)
(citing Abram v. Gerry,
672 F.3d 45, 46 (1st Cir. 2012)). Where
the highest state court -- in this case, the Massachusetts Supreme
Judicial Court -- has denied review, we are to "look through to
the last reasoned decision" issued by the Massachusetts Appeals
Court ("MAC"). King v. MacEachern, 665 F.3d 247, 252 (1st Cir.
2011) (quoting Clements v. Clarke,
592 F.3d 45, 52 (1st Cir.
2010)). So the factual narrative below is derived from the
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decision of the MAC, Commonwealth v. Dorisca, 42 N.E.3d 1184 (Mass.
App. Ct. 2015), and the district court's decision, Dorisca v.
Marchilli, No. CV 17-10376-FDS,
2018 WL 3974784, at *1 (D. Mass.
Aug. 20, 2018), which drew from the MAC's decision too.
Dorisca and Bensney Toussaint ("Toussaint") attended a
June 8, 2008 graduation cookout in Brockton, Massachusetts, and
that's where the ultimately deadly physical altercation between
the two men went down. Toussaint was romantically involved with
the mother of Dorisca's two children at the time, and Dorisca and
Toussaint had been involved in at least one previous dust-up.
Toussaint instigated a physical fight with Dorisca, and the ensuing
brawl ended with Toussaint on the ground with multiple gunshots to
the chest and head. His wounds proved deadly -- Toussaint was
taken to a nearby hospital, but was pronounced dead upon arrival.
Dorisca bolted, leaving Massachusetts and hiding out in
Florida for two and a half years before being arrested on unrelated
charges in 2011 (which led to the discovery of the outstanding
warrant for his arrest in Massachusetts).
Discovery, Trial, Conviction, and Appeals
Dorisca was charged with first-degree murder, and the
facts underpinning his claims before us transpired over the course
of the weeks leading up to trial, during trial, and in closing
arguments, so we next provide an overview of those happenings (with
additional detail to follow later).
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Two months out from trial, the Commonwealth moved to
continue because one of its witnesses, medical examiner Dr.
Kimberley Springer ("Dr. Springer"), would be on maternity leave
as of the scheduled date of the trial and, as a result, would not
be able to testify at trial. The trial judge denied the motion
(without prejudice), then instructed the Commonwealth to find a
substitute witness. Within a matter of weeks, the Commonwealth
moved for a continuance on a new, but related basis: the digital
photographs from Toussaint's autopsy apparently had been
corrupted, and they were unavailable for examination by a
substitute medical examiner. Like the motion before it, that one
was denied without prejudice, this time to give Dorisca time to
decide whether he would waive his confrontation clause rights,
which he ultimately declined to do. So the Commonwealth moved to
conduct a deposition of Dr. Springer. The motion was allowed, and
Dr. Springer was deposed on videotape in a courtroom before the
trial judge.1 Dorisca's attorney was present and had an
opportunity to ask questions.
The case proceeded to trial in March of 2013, and five
days into it, the Commonwealth moved to introduce the videotaped
deposition of Dr. Springer into evidence. Based on the
Commonwealth's report four days earlier that Dr. Springer had gone
1 We'll discuss the substance of her deposition testimony
later.
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into labor, the trial judge found that Dr. Springer was unavailable
to testify, and -- over Dorisca's objection as to the doctor's
unavailability -- allowed the videotaped deposition to be played
for the jury. This witness-availability saga forms the basis for
the first of Dorisca's habeas arguments now before us.
Next up, closing arguments, during which the prosecutor
made two misstatements. These misstatements (and the trial judge's
handling of them) constitute the second basis for Dorisca's appeal.
First misstatement:
You heard [Dorisca's] testimony; he's not face up. He
says he's face down, all these men are kicking him and
at the time he wants you to believe that Bensney
Toussaint is slamming his head in the ground. But then
he says I can still see Rodley Doriscat[, Dorisca's
cousin and fellow cookout-goer,] come up, poke Bensney
with the gun. I can see Bensney reach for it and then
I see Rodley shoot him.
Is that credible? Is it reasonable that someone with
his face down can miraculously now see Rodley Doriscat
allegedly shooting to protect him? No. But he needs it
to be credible. Why? He needs to corroborate the
confession.
Dorisca objected because he never testified that he saw Rodley2
shoot Toussaint (no one disputes this was a misstatement). Rather,
Dorisca had testified that he saw Rodley running away with a gun.
He also testified that Rodley later explained to Dorisca that he
had poked Toussaint with the gun (in an effort to get Toussaint
2 Rodley -- who we refer to by first name to avoid confusion
-- committed suicide about three years before trial, having never
gone to the police as Dorisca testified Rodley told him he would.
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off Dorisca, he said), but when Toussaint grabbed Rodley's wrist,
Rodley shot him.
The next prosecutorial misstep (undisputedly a
misstatement, like the one before it) came when the prosecutor
mischaracterized how Dorisca had testified regarding the arresting
event in Florida. Specifically, in the course of being picked up,
Dorisca was a passenger in a car that was stopped by a police
officer. During closing, the prosecutor stated that Dorisca
testified that the officer asked for Dorisca's name before
requesting the driver's name. The prosecutor told the jury, "[t]he
defendant says that he is stopped and [the officer] asks him first,
not the driver who is stopped, but the passenger what his name
was." Dorisca objected because what Dorisca actually said was
that the officer questioned the driver, then asked for Dorisca's
name, and although Dorisca initially gave the officer his real
name, the officer did not believe him (thinking that Dorisca, like
the driver, should have a Haitian-sounding name (whatever that
means)), so Dorisca offered him a fake name instead. At some
point, Dorisca moved for a mistrial on the basis of these
misstatements, but it is unclear from the record precisely when
that motion was made.
Before sending the jury out, the trial judge gave the
jury the standard instruction that closing arguments are not
evidence. The jury convicted Dorisca of second-degree murder.
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As we already mentioned, Dorisca appealed his conviction
to the MAC, but that appeal was unavailing -- the MAC concluded
that, despite what it deemed an error in designating Dr. Springer
"unavailable," the admission of the videotaped deposition was
harmless, and further, the misstatements by the prosecution in
closing were not prejudicial and not significant in view of the
evidence as a whole.3 Dorisca, 42 N.E.3d at 1192-93, 1193 n.19.
The Supreme Judicial Court of Massachusetts denied without a
written opinion Dorisca's application for leave to obtain further
appellate review. Commonwealth v. Dorisca, 48 N.E.3d 464 (Mass.
2016).
Out of options in the state court system, Dorisca
petitioned the federal district court for habeas relief, 28 U.S.C.
§ 2254, arguing violations of his right to confrontation (based on
the admission of Dr. Springer's videotaped deposition testimony)
and of due process (based on what Dorisca characterizes as
prejudicial misstatements of evidence during closing arguments),4
3We will not recount each of the appellate contentions
Dorisca has advanced since his trial because only two are before
us on appeal, as we will explain.
4 We note that Dorisca initially advanced three grounds for
habeas relief -- (1) the violation of his right to confrontation
of a witness, (2) violation of due process by denying his motion
for mistrial due to misstatements of evidence during the state's
closing, and (3) violation of due process in allowing repetitious
testimony into evidence -- but the state moved to dismiss the
entire petition because ground (3) had not been exhausted. The
district court stated that it would grant the motion to dismiss
unless Dorisca moved to dismiss the unexhausted claim, and when he
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but the district court, concluding that the MAC's harmlessness
determination as to the challenged deposition testimony was
appropriate and the MAC's decision with respect to the
prosecutorial misconduct did not run afoul of Supreme Court
precedent, dismissed the petition (granting a certificate of
appealability). Dorisca challenged that dismissal, which brings
us to the appeal now before us.
DISCUSSION
The district court did not hold an evidentiary hearing
(nor was it asked to), so it made no factual findings of its own.
As such, our review of the district court's dismissal of the habeas
petition is de novo. See Bebo v. Medeiros, 906 F.3d 129, 134 (1st
Cir. 2018), cert. denied,
139 S. Ct. 1203 (2019) (citing Pike v.
Guarino,
492 F.3d 61, 68 (1st Cir. 2007)). "Like the district
court, however, we are required to afford significant deference to
the state court's decision under most circumstances." Lucien v.
Spencer,
871 F.3d 117, 122 (1st Cir. 2017) (citing Scoggins v.
Hall,
765 F.3d 53, 57 (1st Cir. 2014)).
Before turning to Dorisca's arguments, we provide the
big-picture legal framework that will shape our analysis. Just
like the district court's review of Dorisca's habeas petition,
did so, the district court granted that motion. So Dorisca
ultimately pursued only grounds (1) and (2) before the district
court. Those are the sole grounds here on appeal.
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ours is shepherded by AEDPA. 28 U.S.C. § 2254. As an overarching
matter, under AEDPA, "error by a state court, without more, is not
enough to warrant federal habeas relief." Bebo,
906 F.3d at 134
(quoting Cronin v. Comm'r of Prob.,
783 F.3d 47, 50 (1st Cir.
2015)). Indeed, as relevant here, a state court decision may be
overturned on habeas review only when a petitioner demonstrates
that the state court's adjudication on the merits of his claims
resulted in a decision that is "contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States."
28 U.S.C.
§ 2254(d)(1). We've observed that AEDPA's "standards ensure that
federal habeas relief will be granted only in cases in which all
fairminded jurists would agree that a final state court decision
is at odds with the Supreme Court's existing precedents." Bebo,
906 F.3d at 134 (citing Harrington v. Richter,
562 U.S. 86, 102
(2011)). Indeed, "[t]he more general the rule, the more leeway
courts have in reaching outcomes in case-by-case determinations."
Yarborough v. Alvarado,
541 U.S. 652, 664 (2004). As such, a
habeas petitioner must show "the state court's ruling on the claim
. . . was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility
for fairminded disagreement." Linton v. Saba,
812 F.3d 112, 123
(1st Cir. 2016) (quoting Harrington,
562 U.S. at 103).
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This first layer of set-up complete, we turn to the
specifics of Dorisca's two claims before us: (1) his right to
confrontation was violated when, in an unreasonable application of
federal law resulting in prejudicial error, the deposition
testimony of Dr. Springer was admitted without an adequate showing
that she was unavailable to testify at trial; and (2) his due-
process rights were violated when his mistrial motion -- based on
the misstatements of evidence during closing arguments and the
trial judge's response to them -- was denied.
1. Admission of Dr. Springer's deposition testimony and the
MAC's harmlessness determination
Dorisca argued that the trial court's admission of Dr.
Springer's deposition (premised on an erroneous unavailability
determination) violated his right to confrontation, and the MAC
agreed, finding error in the trial judge's unavailability
determination. But the MAC reasoned that the error was a harmless
one (more on this shortly), and it is this harmlessness
determination that Dorisca tells us the MAC got wrong.5 He says
the error was not harmless in that, without live cross-examination,
his ability to challenge the case against him was substantially
prejudiced, particularly as to who pulled the trigger and the
5
Dorisca never truly fleshes out exactly how it is that the
MAC's harmlessness determination was an unreasonable application
of federal law (nonetheless we work with the arguments he does
offer in support of his proposition that the MAC's "decision was
unreasonable").
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trajectory of the gunshots. He could not fully and effectively
explore these topics -- especially the "intermediate range" piece
-- in the course of Dr. Springer's deposition because he did not
yet have the full picture of wholly developed facts. And the jury
was left with no way to assess Dr. Springer's credibility and
reliability. At oral argument, Dorisca said the deposition had
been approached more like traditional discovery rather than as
something that would be introduced at trial: counsel told us he
figured the deposition wouldn't be defense counsel's "last shot at
Dr. Springer." Dorisca has not explained why it was reasonable
for him to believe defense counsel would have another opportunity
to examine Dr. Springer when the trial judge had demonstrated clear
intractability when it came to moving the trial date to ensure her
availability, but this is his position.
Meanwhile, the Commonwealth asserts that even if there
was a confrontation clause violation, the MAC did not unreasonably
apply federal law in reaching its conclusion that any such error
was a harmless one.6 Running through factors set forth in the
relevant clearly established federal law, which is Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986), the Commonwealth tells us, inter
alia, that Dr. Springer's testimony was "largely redundant of other
6 The Commonwealth tells us that the MAC's decision was not
contrary to Supreme Court precedent (another of AEDPA's grounds
for habeas relief, remember) -- but since Dorisca himself never
argues that point, we don't go there.
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evidence" and that her testimony regarding the intermediate
shooting range "actually redounded to the benefit of" Dorisca since
it empowered him to press the theory that the shooter was someone
farther away from Toussaint than Dorisca had been. The
Commonwealth also notes that Dorisca's arguments with respect to
the prejudice he says he suffered are speculative.
So let's turn to the merits. At the heart of Dorisca's
claim for habeas relief here is the Sixth Amendment's guarantee
that "[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him." U.S.
Const. amend. VI. The Supreme Court in Davis v. Washington, 547
U.S. 813, 821 (2006), held that this provision "bars 'admission of
testimonial statements of a witness who did not appear at trial
unless he was unavailable to testify, and the defendant had had a
prior opportunity for cross-examination.'"
Id. (quoting Crawford
v. Washington,
541 U.S. 36, 53-54 (2004)).
Recall that the trial judge here had deemed Dr. Springer
unavailable, a determination he arrived at based on the
Commonwealth's report several days earlier that she was in labor.
That ruling in place, the prosecutor offered, and the trial judge
allowed into evidence, Dr. Springer's videotaped deposition in
which she testified about Toussaint's wounds and cause of death.
In the course of her testimony, she explained that the gunshots to
Toussaint's chest caused his death, and she believed the wounds
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were not so-called "close" wounds, but rather they were caused by
gunshots fired from a distance of "a couple of inches to a few
feet away," or from "intermediate range."
When the case reached the MAC, it had the benefit of a
new framework handed down to it by the Commonwealth's high court
that "clarified the requirements for a judicial determination of
unavailability." Dorisca, 42 N.E.3d at 1189 (citing Commonwealth
v. Housewright, 25 N.E.3d 273, 281 (Mass. 2015)). Long story
short, Dorisca's trial judge's unavailability determination fell
short: the trial judge did not have (or inquire about) up-to-date
information about Dr. Springer's condition and had failed to either
consider whether she could appear later in the trial or to
entertain a short continuance to accommodate her current
unavailability, so the MAC concluded that the admission of the
deposition violated Dorisca's right to confrontation. Id. at 1191.
From there, the MAC pivoted to a Chapman v. California,
386 U.S. 18 (1967), harmless-beyond-a-reasonable-doubt analysis
because even though this constitutional right was violated, it
does not automatically follow that Dorisca was entitled to relief,
see, e.g., Glebe v. Frost,
574 U.S. 21, 23 (2014) (per curiam)
("Most constitutional mistakes call for reversal only if the
government cannot demonstrate harmlessness[,] Neder v. United
States, 527 U.S. 1, 8 (1999)[, while] [o]nly the rare type of error
. . . requires automatic reversal."). So the MAC queried: the
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unavailability determination was an error (resulting in a
confrontation clause violation), but was it a harmless one?
Dorisca, 42 N.E.3d at 1191 (Commonwealth v. Marini, 378 N.E.2d 51,
58 (Mass. 1978), which quotes Chapman,
386 U.S. at 24). The MAC
answered that question in the affirmative -- it was a harmless
error because: the central factual dispute was the identity of
the shooter, and Dr. Springer's testimony had no bearing on that
question because nothing in her testimony made it more likely that
the shooter was Dorisca; only passing reference was made to her
testimony in closing argument -- for both sides; Dorisca actually
relied on her intermediate range testimony to support his position
that the shooter was Rodley; Dorisca had not pointed the MAC to
any testimony by Dr. Springer that was "essential to the
Commonwealth's case or significant to the jury's resolution of the
defendant's guilt"; Dr. Springer's testimony was cumulative, not
significant or indispensable; and Dorisca "thoroughly cross-
examined Dr. Springer at her deposition, and there is no indication
that either her testimony or the defense strategy on cross-
examination would have differed at trial." Dorisca, 42 N.E.3d at
1192 (collecting cases applying Chapman or Chapman-style harmless-
error analysis in this context).
Our job is to scrutinize the harmlessness determination.
"[W]hen a state court determines that a constitutional violation
[here, the confrontation clause violation stemming from the faulty
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unavailability determination] is harmless [under Chapman, 386 U.S.
at 24], a federal court may not award habeas relief under § 2254
unless the harmlessness determination itself was unreasonable."7
Fry v. Pliler,
551 U.S. 112, 119 (2007) (citing Mitchell v.
Esparza,
540 U.S. 12 (2003) (per curiam)). Indeed, the critical
inquiry is whether the MAC's harmlessness determination was
reasonable; we do not perform our own harmlessness analysis.
We conclude that Dorisca has not met his burden on the
threshold issue of whether the harmlessness determination stemmed
from an unreasonable application of Supreme Court law. We explain.
In looking de novo at the MAC's harmlessness
determination, we keep in mind that an unreasonable application of
7 In Chapman, the Court "articulated the constitutional
harmless error standard, which provides that, on direct appellate
review, an error at trial affecting the defendant's constitutional
rights will be deemed harmless only if it can be shown to be
harmless beyond a reasonable doubt." Connolly v. Roden, 752 F.3d
505, 509 (1st Cir. 2014), cert. denied,
135 S. Ct. 960 (2015)
(citing Chapman,
386 U.S. at 24).
Our court has explained that, "when a state court decides
that a constitutional error is harmless beyond a reasonable doubt
under Chapman, a federal court on habeas review may choose between
two equally valid options" in undertaking its review: ask under
AEDPA whether the harmlessness determination was an unreasonable
application of Chapman, and only if it was may we move on to ask
whether actual prejudice resulted; or begin directly with the
actual-prejudice question. Connolly, 752 F.3d at 511; see also
Fry v. Pliler,
551 U.S. 112, 120 (2007).
Truth be told, there's more background to all of this, and we
would urge the curious reader to check out Connolly for a helpful
account of Supreme Court pronouncements regarding our review in
this arena. For our purposes today, though, we need not replicate
the entire history Connolly lays out.
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federal law happens when a state court "identifies the correct
governing legal principle from the Supreme Court's then-current
decisions but unreasonably applies that principle to the facts of
the prisoner's case." Hensley, 755 F.3d at 731 (quoting Abrante
v. St. Amand,
595 F.3d 11, 15 (1st Cir. 2010)). "For purposes of
§ 2254(d)(1), 'an unreasonable application of federal law is
different from an incorrect application of federal law,'" and a
state court is afforded "deference and latitude." Harrington,
562
U.S. at 101 (quoting Williams v. Taylor,
529 U.S. 362, 410 (2000));
see also Hensley,
755 F.3d at 731. And we observe that it must be
an objectively unreasonable application of federal law -- "even
'clear error' will not suffice." White v. Woodall,
572 U.S. 415,
419 (2014) (quoting Lockyer v. Andrade,
538 U.S. 63, 75-76 (2003)).
Here, Chapman and Van Arsdall -- taken together -- are
what the MAC is alleged to have unreasonably applied. Chapman,
386 U.S. at 24, as we just mentioned, announces the constitutional
harmless-error standard, while Van Arsdall,
475 U.S. at 684, tells
us that, when it comes to a confrontation clause violation under
Chapman, a court should take into account "the importance of the
witness' testimony in the prosecution's case, whether the
testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
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prosecution's case." In reviewing Dorisca's claim of error, the
MAC undertook a Chapman harmlessness analysis that tracked
(without explicitly referring to) the factors laid out in Van
Arsdall.
Dr. Springer's videotaped deposition testimony was
referenced only in passing during each side's closing, which we
take to mean it wasn't afforded a high mark on "importance" to the
prosecution's case since the MAC observed that closing arguments
focused more on credibility determinations. Dorisca, 42 N.E.3d at
1192. Indeed, the MAC reasoned that Dorisca never pointed to any
testimony by Dr. Springer "that was essential to the Commonwealth's
case." Id. And it is clear that Dr. Springer's testimony with
respect to the nature and extent of Toussaint's wounds, as well as
his cause of death, was corroborated by other witnesses and
evidence (such as the emergency room doctor, autopsy photographs,
and medical records). Id. at 1192 & n.17. The cause of death was
not disputed, so Dr. Springer's testimony on that score was not of
the utmost importance, either; and to the extent her "intermediate
range" testimony could be seen as problematic, her testimony on
that topic neither incriminated Dorisca nor absolved him of guilt
since the gunshots' point of origin remained wholly in doubt.8 Id.
8
Dorisca does not contend that Dr. Springer's "intermediate
range" testimony supported a Dorisca-pulled-the-trigger theory of
the crime, nor does he say it was a particularly important
component of the Commonwealth's case or critical to the eventual
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In fact, as the MAC reasoned, Dorisca himself even used Dr.
Springer's testimony on that point to cast reasonable doubt on
Dorisca being the shooter (telling the jury it could have been
Rodley, not Dorisca, who pulled the trigger). Id. at 1192.
And what's more, nothing in the record or the appellate
papers before us indicates that Dr. Springer's testimony would
have been any different at trial than it was at deposition. While
Dorisca tells us her live testimony would have been preferable --
and we're not saying we disagree -- the fact is that the deposition
was being conducted in lieu of live testimony, so he should have
planned accordingly rather than banking on getting "another shot
at Dr. Springer" at trial.
The strength of the Commonwealth's case is yet another
factor, and one which also supports the harmlessness
determination. Indeed, the MAC noted that even with the identity
of the shooter a mystery, the "compelling circumstantial evidence"
against Dorisca was "sufficient to permit the jury to find [him]
guilty beyond a reasonable doubt." Id. at 1187. More
particularly, the MAC pointed to "eyewitness testimony that only
two men were fighting, one of whom was the defendant and the other
guilty verdict, so any such argument is waived. Moreover, we do
not see how such arguments could succeed in light of
the Brecht v. Abrahamson, 507 U.S. 619 (1993), standard.
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the victim, and conduct of and statements made by the defendant
indicating consciousness of guilt." Id.
In light of all this, we cannot say that the MAC's
conclusion was an unreasonable application of Chapman and, by
extension, Van Arsdall.9 Remember, the MAC's determination would
need to be objectively unreasonable -- clear error, even if we saw
it (and we don't), wouldn't do the trick. White, 572 U.S. at 419.
In the end, and giving the MAC the due "deference and latitude" it
is owed, Harrington,
562 U.S. at 101, we do not see any objectively
unreasonable application of the law, nor can we conclude that "all
fairminded jurists" would see the MAC's decision as being "at odds
with the Supreme Court's existing precedents," Bebo,
906 F.3d at
134 (citing Harrington,
562 U.S. at 102). Bound by the confines
of AEDPA and all the case law we've laid out in reaching this
point, we conclude that the district court did not err when it
concluded that the MAC reasonably determined that the
constitutional violation was harmless beyond a reasonable doubt,
so Dorisca is not entitled to habeas relief on this ground.10
9 We pause here only to observe that consideration of another
of Van Arsdall's factors cited by the MAC -- cumulativeness --
would not alter our conclusion. Even if Dr. Springer's testimony
was not actually "cumulative of other evidence in the case,"
Dorisca, 42 N.E.3d at 1192, it is one factor of many, so our
preceding analysis of and conclusion regarding the MAC's
harmlessness determination (based on Chapman and the other Van
Arsdall factors) would be unchanged.
10 Because we so conclude, we need not contend with actual
prejudice. See Connolly, 752 F.3d at 514 (taking this approach).
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2. Prosecution's misstatements during closing arguments
In his next effort to support his habeas petition,
Dorisca contends that the prosecution intentionally misstated the
evidence twice during the course of the closing argument, and those
misstatements, along with the trial judge's refusal to grant a
mistrial, constitute a prejudicial error. Remember, the
misstatements were (a) Dorisca testified that he saw Rodley shoot
Toussaint (which is not what he said) and (b) Dorisca testified
that the officer asked for his name first, not the driver's name
(the reverse was what Dorisca had said). This prosecutorial
misconduct, Dorisca says, rendered the whole of Dorisca's
testimony implausible and undermined his credibility, and the
trial judge's "boilerplate" jury instruction that closing
But, even if the MAC's harmlessness determination was premised on
an unreasonable application of the law, Dorisca still would not
prevail because he cannot show error under the actual-prejudice
standard. See Brecht, 507 U.S. at 637 (explaining the key inquiry
of whether an error had substantial and injurious effect on the
verdict -- habeas petitioners are not necessarily entitled to
relief unless they establish that the error resulted in actual
prejudice). Here, Dorisca did not identify any non-speculative
actual prejudice. In his papers and at oral argument, Dorisca
claimed the actual prejudice was that Dr. Springer never appeared
before the jury and her intermediate range testimony, without live
cross-examination, was harmful to his case. This is purely
speculative and certainly doesn't rise to the level of a
substantial and injurious effect on the verdict since Dorisca has
not demonstrated what would have been different about Dr.
Springer's cross-examination at trial versus at deposition, nor
has he identified what information he had hoped to pin down through
Dr. Springer's cross that was not already in the record.
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arguments are not evidence was insufficient to address the
ramifications of the misstatements.
But, although he identifies the relevant clearly
established Supreme Court case, nowhere in the pages Dorisca
devotes to this argument does he explain to us how the MAC's
prosecutorial-misstatements analysis ran contrary to or
constituted an unreasonable application of the law, as he must to
succeed. 28 U.S.C. § 2254(d)(1). Instead, he focuses on
relitigating the incorrectness of the misstatements and how the
trial judge's "bland" curative instruction failed to offset the
negative effect the misstatements had on the jury -- both are
relevant to our review of his claim, but he has not shown us how,
under AEDPA, the MAC's determinations on those points ran afoul of
the contrary to/unreasonable application of federal law standard.
In any event, because we can go the route of rejecting
Dorisca's claim on the merits -- and because the Commonwealth did
not implore us to do otherwise -- we need not go as far as to say
this piece of the appeal is waived. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) (treating arguments not developed
on appeal as waived because litigants must develop their own
arguments rather than "leaving the court to do counsel's work").
So, with our AEDPA framework in mind, we turn to the
MAC's analysis. In evaluating the appellate contentions relative
to the prosecutor's misstatements, the MAC properly relied on
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Massachusetts state law consistent with Darden v. Wainwright, 477
U.S. 168 (1986), the clearly established Supreme Court case law
instructing that "it is not enough that [a] prosecutors' remarks
[are] undesirable or even universally condemned."
Id. at 181
(internal quotation marks omitted). Under Darden, "[t]he relevant
question is whether the prosecutors' comments 'so infected the
trial with unfairness as to make the resulting conviction a denial
of due process.'"
Id. (quoting Donnelly v. DeChristoforo,
416
U.S. 637, 643 (1974)). That question is to be answered on a case-
by-case basis, Parker v. Matthews,
567 U.S. 37, 48 (2012), taking
into account considerations such as whether the jury was adequately
instructed, the nature and seriousness of the comments, and the
weight of the evidence, see, e.g., Dagley v. Russo,
540 F.3d 8, 15
n.3, 17-18 (1st Cir. 2008) (citing Darden,
477 U.S. at 178-83;
Donnelly,
416 U.S. at 642-45); see also Hardy v. Maloney,
909 F.3d
494, 501 (1st Cir. 2018).
Here, the MAC agreed that the prosecutor misstated the
testimony, but determined that, "[u]nder the circumstances,"
considering the evidence as a whole, the misstatements were not
prejudicial in that they were not significant errors. Dorisca, 42
N.E.3d at 1192-93, 1193 n.19 (citing Commonwealth v. Wood, 14
N.E.3d 140, 158-59 (Mass. 2014); Commonwealth v. Kozec,
505 N.E.2d
519, 520 (Mass. 1987)). Yes, the prosecutor's statement that
Dorisca had seen Rodley shoot Toussaint was inaccurate, but the
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MAC concluded that because Dorisca "testified that he heard shots,
and then saw Rodley running from the scene holding a gun," and
further had "testified that Rodley told him that he poked the
victim with a gun," the prosecutor's error was not prejudicial.
Dorisca, 42 N.E.3d at 1193. And with respect to the officer asking
Dorisca his name either before or after asking the driver,
depending on who's telling the story, the MAC held that the
prosecutor's inaccurate version was not prejudicial error because
it was insignificant. Id. at 1193 n.19 (citing Commonwealth v.
Richenburg, 518 N.E.2d 1143, 1150 (Mass. 1988)). Moreover, the
trial judge "instructed the jury that the arguments were not
evidence, and that the jurors were to rely on their own memories
of the evidence."
Id. at 1193.
Overall, the MAC appropriately considered the
seriousness of the misstatements, the weight of all the evidence,
and the curative instructions issued. See, e.g., Dagley, 540 F.3d
at 15 n.3, 17-18 (citing Darden,
477 U.S. at 178-83; Donnelly,
416
U.S. at 642-45). Accordingly, the MAC's determination that the
prosecutor's misstatements were not prejudicial is not contrary to
or an unreasonable application of clearly established federal law,
nor did the misstatements "so infect[] the trial with unfairness
as to make the resulting conviction a denial of due process."
Darden,
477 U.S. at 181 (quoting Donnelly,
416 U.S. at 643). The
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district court, given AEDPA's strictures, correctly determined
that Dorisca is not entitled to habeas relief on this ground.
CONCLUSION
For the reasons stated, the district court's dismissal
of the habeas petition is affirmed.
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