FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. F. Dennis Saylor, IV, U.S. District Judge
S. Crouch for appellant.
E. Bocian, Assistant Attorney General, with whom Maura
Healey, Attorney General of Massachusetts, was on brief, for
Howard, Chief Judge, Thompson and Barron, Circuit Judges.
THOMPSON, CIRCUIT JUDGE.
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.
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.
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.
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).
Trial, Conviction, and Appeals
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).
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. Dorisca's attorney was present and
had an opportunity to ask questions.
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.
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.
objected because he never testified that he saw
Rodley 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
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 ...