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Dorisca v. Marchilli

United States Court of Appeals, First Circuit

October 23, 2019

JOSENER DORISCA, Petitioner, Appellant,
RAYMOND MARCHILLI, Respondent, Appellee.


          Andrew S. Crouch for appellant.

          Thomas E. Bocian, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee.

          Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.


         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.


         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 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).

         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 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 Rodley[2] 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 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 ...

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