Fulgiam v. Kenneway

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

EARL FULGIAM, )

Petitioner, ) CIVIL ACTION NO.

) 18-12106-DPW

v. )

)

STEVEN KENNEWAY, )

Respondent. )

)

)

MEMORANDUM AND ORDER

March 8, 2019

Petitioner Earl Fulgiam seeks habeas corpus relief from

2013 Massachusetts state court convictions for first degree

murder, carrying a firearm without a license, carrying

ammunition without a license, and possession of a large capacity

firearm without a license. He is serving a life sentence

without parole.

Mr. Fulgiam filed this federal habeas corpus petition on

October 7, 2018. He argues that his right to confrontation

under the Sixth Amendment to the United States Constitution was

violated in two ways: (1) by admission of a ten-print

fingerprint card containing his name, and (2) by certain

testimony received from a fingerprint expert. The Respondent

has moved for judgment on the pleadings.

I. BACKGROUND

A. Factual Background

When evaluating habeas corpus petitions made by state

prisoners pursuant to 28 U.S.C. § 2254, findings of fact by the

state court “shall be presumed to be correct” and the petitioner

“shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. §

2254(e)(1); Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir. 2002)

(explaining that deference is accorded to findings of both state

trial and state appellate courts). The parties do not appear to

contest the factual findings reported by the Supreme Judicial

Court of Massachusetts, see generally Commonwealth v. Fulgiam,

73 N.E.3d 798 (Mass. 2017). I rely upon the state court’s

pertinent findings here.

On July 25, 2011, the victims, Billie Marie Kee and Kevin

Thomas, Jr., were robbed and killed in their Boston apartment.

Ms. Kee was found lying down on the floor. She had suffered

four gunshot wounds and multiple stab wounds that damaged her

torso, lungs, ribs, and spine. Mr. Thomas was found dead in the

front bedroom with his legs bound with a black cord. He had

suffered seven gunshot wounds and four stabs wounds that damaged

his torso and neck.

The police found a curling iron with its cord cut near Ms.

Kee’s body. The curling iron cord matched the wire that was

used to bind Mr. Thomas’ legs. The police also found a loaded

nine-millimeter semiautomatic pistol with a magazine. All

bullets, bullet fragments, and shell casings recovered from the

scene had been fired from the nine-millimeter semiautomatic

pistol. The police later individualized1 a latent print found on

the curling iron to co-defendant Michael T. Corbin, and four

latent prints from the nine-millimeter semiautomatic pistol to

Mr. Fulgiam.

B. Procedural History

Mr. Fulgiam and Mr. Corbin were tried by a jury in the

Suffolk County Superior Court from May 1 to May 20, 2013. At

trial, Kristen Tolan, a fingerprint examiner from the Boston

Police Department, testified that seven latent prints were

recovered from the nine-millimeter semiautomatic pistol. She

further testified that after she entered the first latent print

into the Automated Fingerprint Identification System (“AFIS

system”), the system generated a ten-print card2 for Earl

Fulgiam. The ten-print card contained Mr. Fulgiam’s name, date

of birth, sex, race, place of birth, height, weight, eye color,

and hair color. It did not, however, include the date, the name

of an arresting officer, the signature of the officer taking the

1 Individualization is “when a latent print examiner comes to a

conclusion that there is a sufficient amount of detail of

quality and quantity … between the latent print and the known

fingerprint … to establish that the latent print originated from

the known print ….” Commonwealth v. Fulgiam, 73 N.Ed.3d 798,

815 n.20 (Mass. 2017).

2  A ten-print card records fingerprints of the ten fingers of an

individual. A ten-print card generally also contains what

purports to be that individual’s name, signature, date of birth

and sometimes an address.

prints, the signature of the person being fingerprinted, or the

name of the Department. The card did contain an arrest date of

“07 18 2011,” seven days before the date of the murder. Ms.

Tolan testified that using the ACE-V methodology (analysis,

comparison, evaluation, and verification), she was able to

individualize four latent prints from the semiautomatic pistol

to Mr. Fulgiam.

Mr. Fulgiam sought to exclude the ten-print card and

objected at trial, stating that it was “hearsay … being offered

specifically for a testimonial purpose.” The trial court denied

the motion because it was “of the view that the AFIS ten-print

fingerprint card [was] not testimonial.”

In addition to his objection to the ten-print card, Mr.

Fulgiam also objected when the prosecutor asked Ms. Tolan,

“Without getting into the name, was your work with respect to

[the four individualized prints] verified after you came to your

conclusions?” The trial judge sustained the objection as to the

word “verified,” stating, however, that the prosecutor could

“get into the name,” but couldn’t elicit “anything other than

what he might have done when he examined them.” The prosecutor

then asked Ms. Tolan if her findings had been “reviewed” by Ioan

Truta, a criminalist in the Latent Print Unit, to which she

replied “yes.” Although Mr. Fulgiam again objected, the trial

court overruled the objection.

On May 20, 2013, the jury convicted Mr. Fulgiam and Mr.

Corbin guilty as joint venturers in first degree murder. The

jury also convicted Mr. Fulgiam and Mr. Corbin of carrying a

firearm without a license, possession of a large capacity

firearm without a license, and carrying ammunition without a

license.

Mr. Fulgiam and Mr. Corbin appealed to the SJC. As

pertinent here, Mr. Fulgiam argued to the SJC that the trial

court erred in the admission of (1) the ten-print card without

proper authentication or reliability; and (2) expert testimony

related to the fingerprint analysis. On May 5, 2017, the SJC

upheld the convictions. Mr. Fulgiam subsequently filed a

petition for rehearing. On June 28, 2017, the SJC denied the

petition but amended its decision. Mr. Fulgiam then sought —

but on October 10, 2017, was denied — a writ of certiorari from

the Supreme Court of the United States. On October 7, 2018, Mr.

Fulgiam filed this petition for a writ of habeas corpus from

this Court pursuant to 28 U.S.C. § 2254, on the grounds that his

Sixth Amendment right to confront witnesses was violated by the

admissions of (1) the ten-print card bearing his name and (2)

Ms. Tolan’s testimony relating to Mr. Truta.

II. STANDARD OF REVIEW

A state petitioner seeking federal habeas corpus relief

under the Antiterrorism and Effective Death Penalty Act of 1996

(the “AEDPA”), must overcome a demanding burden. Cooper v.

Bergeron, 778 F.3d 294, 299 (1st Cir. 2015). A federal court

may not grant an application for a writ of habeas corpus unless

the state court decision was (1) “contrary to, or an

unreasonable application of clearly established” federal law, as

determined by the Supreme Court, or (2) “based on an

unreasonable determination of the facts in light of the

evidence” presented during the state court proceeding. 28

U.S.C. § 2254(d).

In this context, “clearly established” federal law “refers

to the holdings, as opposed to the dicta, of [the Supreme]

Court’s decisions as of the time of the relevant state-court

decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003). To

secure habeas relief on the basis of an “unreasonable

application of” Supreme Court precedent, the state-court

decision must not merely be based on an “erroneous” or

“incorrect” legal interpretation. Id. at 75. Rather, it must

be “so lacking in justification that there was an error well

understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington v.

Richter, 562 U.S. 86, 103 (2011). Additionally, “evaluating

whether a rule application was unreasonable requires considering

the rule’s specificity. The more general the rule, the more

leeway courts have in reaching outcomes in case-by-case

determinations.” Id. at 101.

Finally, even if a state court decision is contrary to, or

an unreasonable application of, established federal law, a

petitioner is not entitled to habeas relief unless harm

resulted. The standard for determining whether relief must be

granted is whether the error had a “substantial and injurious

effect or influence in determining the jury’s verdict.” Fry v.

Pliler, 551 U.S. 112, 116 (2007) (quoting Brecht v. Abrahamson,

507 U.S. 619, 631 (1993)).

III. DISCUSSION

Mr. Fulgiam’s claims turn on alleged violation of the Sixth

Amendment to the United States Constitution.3

The Sixth Amendment’s Confrontation Clause, which is

binding on the states through the Fourteenth Amendment, Pointer

v. Texas, 380 U.S. 400, 403 (1965), provides: “In all criminal

prosecutions, the accused shall enjoy the right … to be

3 I note that the Respondent contends Mr. Fulgiam “separately

challenges the admission of the ten-print card on due process or

fair trial grounds,” without raising the argument in state

courts. I do not address this point because Mr. Fulgiam himself

maintains that he does not intend to raise a separate Fourteenth

Amendment claim apart from the alleged Sixth Amendment

violation. In his Opposition to Respondent’s Motion for

Judgment on the Pleadings, Mr. Fulgiam makes explicit that he

does not present a separate due process argument. He explains

that he included reference to the Fourteenth Amendment in his

Petition because “the 6th Amendment’s right to cross-examination

is applicable to the states through the 14th amendment.”

confronted with the witnesses against him.” U.S. Const. amend.

VI; see generally Ohio v. Clark, 135 S. Ct. 2173, 2179 (2015).

The Clause enables a criminal defendant to bar out-of-court

statements that are “testimonial” by witnesses who did not

appear at trial unless the witnesses are unavailable to testify

and the defendant had a prior opportunity to cross-examine them.

Crawford v. Washington, 541 U.S. 36, 53-54 (2004).

In Crawford, the Supreme Court defined a “core class” of

testimonial statements as those “that were made under

circumstances which would lead an objective witness reasonably

to believe that the statement would be available for use at a

later trial.” Id. at 51-52. The Supreme Court has further

explained that statements are testimonial when the circumstances

objectively indicate that the primary purpose is “to establish

or prove past events potentially relevant to later criminal

prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006).

The First Circuit has synthesized the core concern of this

Supreme Court case law as whether an objectively reasonable

declarant could have anticipated the statement would be used at

trial. See United States v. Meises, 645 F.3d 5, 20 (1st Cir.

2011).

It bears emphasizing that the Confrontation Clause does not

depend on the law of evidence. See Crawford, 124 S. Ct. at 1370

(stating that the Framers did not intend to leave the Sixth

Amendment protection “to the vagaries of the rules of

evidence”). While business records are generally not

testimonial in this sense, if they are created with a later

prosecution in mind, they may be treated as testimonial. See

United States v. Cameron, 699 F.3d 621, 643-44 (1st Cir. 2012)

(holding although the receipts of Yahoo!’s child pornography

report containing information related to the “suspects” were

kept in the ordinary course of business, they were testimonial

because they were clearly created in anticipation of later

trials).

A. Ground one: The ten-print card

Mr. Fulgiam first argues that because the ten-print card

bearing his name contained testimonial hearsay he was unable to

confront at trial, he was denied his Sixth Amendment right to

confront witnesses.

Mr. Fulgiam contends that the SJC unreasonably applied

Supreme Court Confrontation Clause law when it concluded the

ten-print card was a non-testimonial business record. Mr.

Fulgiam spends much time arguing the identifying information in

the ten-print card should not fall within the business records

exception. This state law evidence issue is not directly on-

point in Confrontation Clause analysis. Although the SJC did

conclude ten-print cards were business records, that court

correctly stated that “[i]t is the testimonial character of any

item of evidence that triggers the confrontation right.”

Fulgiam, 73 N.E.3d at 819 (quoting Commonwealth v. Siny Van

Tran, 460 Mass. 535, 552 (2011)). The SJC observed that

business records are usually admissible without confrontation

“not because they qualify under an exception to the hearsay

rules, but because——having been created for the administration

of an entity’s affairs and not for the purpose of establishing

or proving some fact at trial——they are not testimonial.” Id.

(quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324

(2009)). In reaching its conclusion that admission of the ten-

print card did not violate Mr. Fulgiam’s confrontation rights,

the SJC implicitly noted the overlap between the basis for the

business records exception and its generally non-testimonial

characterization of ten-print cards: “[f]ingerprint records are

nontestimonial because they are created for the ‘administration

of an entity’s affairs’ rather than to establish or prove some

fact at trial.” Id. (quotation marks in original) (citation

omitted).

I now turn to the essential issue: whether the SJC’s

decision that the ten-print card was non-testimonial was an

unreasonable application of clearly established federal law.

Mr. Fulgiam argues the SJC unreasonably applied Supreme

Court law. He contends that Supreme Court case law provides

clarity as to whether ten-print cards are testimonial. He

specifically points to Melendez-Diaz and Crawford. Melendez-

Diaz concerned drug analysis certificates showing that evidence

connected to the defendant was cocaine. Melendez-Diaz, 557 U.S.

at 305. Crawford involved a recorded statement the defendant’s

wife had made during police interrogation, after the defendant

had been arrested. Crawford, 541 U.S. at 38. In both cases,

the Supreme Court held the statements involved were testimonial.

A ten-print card created prior to the crime at issue is not

comparable to testimonial statements in Melendez-Diaz and

Crawford. First, in both Melendez-Diaz and Crawford, the

statements were developed after the arrest for the offense at

issue and with a specific view to providing evidence as to that

offense. The drug test certificates in Melendez-Diaz were

created to determine the nature of the controlled substance, in

order to prove the defendant’s charge of distributing cocaine.

The wife’s statement in Crawford was taken to support the

prosecution’s allegation after the defendant’s arrest. Here,

the ten-print card was created seven days before the murder for

inclusion in the library of the AFIS, and therefore could not

have been generated for the purpose for proving some fact

related to the subsequent murder at issue before me.

Additionally, unlike a witness’s testimony about the crime

or a drug test certificate, a fingerprint card itself cannot

implicate a defendant without analysis. See Maryland v. King,

569 U.S. 435, 451 (2013)(analogizing DNA profiles to

fingerprints, stating “[l]ike a fingerprint, [DNA profiles] are

not themselves evidence of any particular crime, in the way that

a drug test can by itself be evidence of illegal narcotic use”).

The ten-print card, therefore, is not comparable to the

testimonial statements in Melendez-Diaz and Crawford.

The fact there are no on-point Supreme Court cases that

clearly establish ten-print cards as testimonial might be a

sufficient answer to Mr. Fulgiam’s claim. The absence of such

Supreme Court cases on point implicitly speaks at a minimum to

the absence of clearly established contrary Supreme Court

rulings at the time the SJC decided Mr. Fulgiam’s case. It

bears noting in addition that courts from other circuits have

reached the same conclusion as the SJC. This consistent lower

court case law underscores the reasonableness of the SJC’s

application of the Supreme Court’s Confrontation Clause case

law. See, e.g., United States v. Williams, 720 F.3d 674, 698

(8th Cir, 2013) (stating fingerprint cards created as part of a

routine booking procedure from prior incident, and not in

anticipation of present litigation, were not testimonial under

Crawford); United States v. Dale, 494 F. App'x 317, 317 (4th

Cir. 2012) (per curiam) (holding fingerprint cards were not

testimonial because they “serve[d] no prosecutorial function on

their own and [did] not (without additional testimony and

analysis) implicate defendant in criminal activity”); United

States v. Diaz-Lopez, 403 F. App'x 199, 202 (9th Cir. 2010)

(holding a fingerprint card “contain[ed] only ministerial,

objective observations,” and was not created in anticipation of

litigation and therefore not testimonial).

Under the extraordinarily deferential standards of the

AEDPA, federal habeas relief only “provides a remedy for

instances in which a state court unreasonably applies [the

Supreme] Court’s precedent; it does not require state courts to

extend that precedent or license federal courts to treat the

failure to do so as error.” White v. Woodall, 572 U.S. 415, 426

(2014) (emphasis in original).

The SJC here carefully examined the record and applied the

Supreme Court’s Confrontation Clause precedents. Specifically,

the SJC carefully analyzed on the basis of Crawford and

Melendez-Diaz. Considering (1) the lack of more precise Supreme

Court precedent on the particular issue, and (2) the consistent

decisions from other lower courts, I find the SJC’s

determination that admission of the ten-print card did not

violate Mr. Fulgiam’s Sixth Amendment not unreasonable.

B. Ground two: Ms. Tolan’s testimony regarding Mr. Truta

In Mr. Fulgiam’s Petition for a Writ of Habeas Corpus, he

generally identifies as a second ground for relief violation of

his Sixth Amendment right to confrontation on the basis that

“testimonial hearsay [was] admitted when fingerprint expert said

someone verified her work but that person did not testify.” Yet

nowhere does Mr. Fulgiam argue or even separately mention this

second ground in either his Memorandum in support of his

Petition or in his Opposition to Respondent’s Motion for

Judgment on the Pleadings. Instead, Mr. Fulgiam’s arguments

focus exclusively on the first ground. I nevertheless discuss

this second ground barely raised by Mr. Fulgiam, and for the

reasons set forth below, I find this second ground separately

unavailing.

Mr. Fulgiam claims the trial court erred in allowing the

fingerprint expert Ms. Tolan to testify that another non-

testifying fingerprint analyst Mr. Truta “verified her work.”

The SJC, however, found that “the judge allowed the analyst’s

testimony that the other analyst ‘reviewed’ her work, but did

not allow testimony that the second analyst verified her work.”

Fulgiam, 73 N.E.3d at 821 (emphasis in original). Specifically,

the SJC noted that:

During the analyst’s testimony, counsel for

Fulgiam preemptively objected to any

questioning by the Commonwealth regarding

whether the analyst’s findings were verified

by another fingerprint examiner. While the

judge sustained the objection, the judge

indicated that the witness would be allowed

to testify that another fingerprint analyst

reviewed her work.

[Id. at n.27].

The SJC’s report of facts is consistent with the trial

record. Mr. Fulgiam has failed to present any factual basis to

support his conclusorily asserted claim. Consequently, Mr.

Fulgiam’s second ground that “testimonial hearsay admitted when

fingerprint expert said someone verified her work” is factually

baseless. Only Ms. Tolan’s testimony that Mr. Truta performed

an act——a review of her work——was admitted. Because Ms. Tolan

did not testify to any conclusions that Mr. Truta had reached,

she did not introduce any testimonial hearsay from Mr. Truta.

Thus, the Confrontation Clause was not directly implicated and

the SJC did not act unreasonably in permitting Ms. Tolan’s

testimony to stand.

IV. CONCLUSION

For the reasons set forth above, I GRANT the Respondent’s

Motion for Judgment on the Pleadings with respect to Mr.

Fulgiam’s habeas corpus petition. The Clerk is directed to

enter a judgment of dismissal of this matter.

/s/ Douglas P. Woodlock____

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE