“Under [the ‘substantial and injurious’] standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’”
How later courts described this case
- “Under [the ‘substantial and injurious’] standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’”
- “[T]he Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.”
- “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
MATTEO TROTTO, )
)
Plaintiff, )
) Civil Action
v. ) No. 22-12058
)
MICHAEL RODRIGUES, )
)
Defendant. )
______________________________ )
MEMORANDUM AND ORDER
August 8, 2024
Saris, D.J.
Having reviewed the objections of both parties, I adopt the
well-reasoned Report and Recommendation of the magistrate judge
and deny the petition. The court assumes familiarity with his
opinion. Dkt. 26. I write separately with regard to Petitioner’s
federal Confrontation Clause claim concerning the testimony of
Captain Sargent and the magistrate judge’s de novo review of that
claim. See Dkt. 26 at 50-52. Both parties have objected to his
analysis.
Matteo Trotto was convicted in May 2014 on murder charges
related to the 1994 disappearance of Kevin Harkins. The
Confrontation Clause issue concerns the testimony of Worcester
police officer Steven Sargent. Sargent was called as a defense
witness to answer questions challenging the police department’s
investigation. On cross examination, he was permitted to testify
to statements made by another witness, Anthony Carlo. In March of
2002, Carlo made a statement to Worcester police claiming that
Trotto had confessed to him that he had been in a car and was
holding a gun when the decedent was shot. Ten years later, after
receiving immunity, Carlo testified to the same before a grand
jury. Carlo was called to the stand at trial but claimed to have
no recollection of Trotto’s purported confession to him. The trial
judge allowed Carlo’s grand jury testimony to be admitted as prior
inconsistent sworn testimony. Dkt. 10-13 at 68-71. After the
prosecution rested, Sargent was called and on cross examination he
was permitted to testify as to statements Carlo had purportedly
made to various Worcester police officers, some of which Sargent
had not heard firsthand. Sargent testified that Carlo had given a
statement to two other officers in 2002 describing Trotto’s
confession. He further testified that a different officer had
contacted Carlo in 2006, and that Carlo had confirmed the substance
of his prior statements but indicated he would refuse to confirm
his statements if called at trial.
The SJC concluded that the trial court erred in admitting
Sargent’s testimony as a part of a so-called Bowden defense to
parry the defendant’s attack on the police investigation. But the
SJC concluded it was harmless error, writing that “if the error
had not been made, the jury verdict would have been the same.”
Commonwealth v. Trotto, 169 N.E.3d 883, 901 (Mass. 2021). The SJC
did not address the Confrontation Clause challenge and did not
apply the stringent harmless beyond a reasonable doubt standard
required for federal constitutional claims. See Chapman v.
California, 386 U.S. 18, 24 (1967) (“[B]efore a federal
constitutional error can be held harmless, the court must be able
to declare a belief that it was harmless beyond a reasonable
doubt.”).
Trotto filed his petition for a writ of habeas corpus arguing
that though the SJC had considered the issues of Sargent’s
testimony under state law, it had failed to address the federal
constitutional question, and de novo review by the federal court
was therefore appropriate. See Dkt. 15 at 59-60. The magistrate
judge agreed and proceeded to review the issue de novo, ultimately
concluding that the confrontation error with respect to Sargent’s
testimony had no “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750,
776 (1946)); see Dkt. 26 at 66. The Commonwealth objects, arguing
that it was not sufficiently clear that the SJC had not ruled on
Trotto’s federal Confrontation Clause claim to warrant de novo
review. See Dkt. 32.
I agree with the magistrate judge that the Confrontation
Clause claim should be reviewed de novo. Federal claims raised but
unadjudicated in state court are reviewed de novo by federal
courts. See Hodge v. Mendonsa, 739 F.3d 34, 41 (1st Cir. 2013).
However, “[w]hen a federal claim has been presented to a state
court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the
absence of any indication of state-law procedural principles to
the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). That
presumption is overcome, and a litigant is entitled to de novo
review under 28 U.S.C. § 2254(d), “[w]hen the evidence leads very
clearly to the conclusion that a federal claim was inadvertently
overlooked in state court.” Johnson v. Williams, 568 U.S. 289, 303
(2013).
In my view, the magistrate judge correctly concluded that the
presumption has been rebutted. In examining the federal
constitutional claims regarding the death certificate and the
database, the opinion is explicit that the SJC reviewed the claims
under the harmless error beyond a reasonable doubt standard. See,
e.g., Trotto, 169 N.E. 3d at 905. Because the SJC analyzed those
claims using Chapman’s heightened harmless-error standard, the
magistrate judge read the opinion to indicate that the SJC was
reviewing the state law Bowden claim under the state law standard,
and that it had neglected to address the federal constitutional
claim. He held that the presumption is rebutted because the Supreme
Judicial Court applied the harmless beyond a reasonable doubt
standard elsewhere in addressing the constitutional Confrontation
Clause questions. This “very clearly” shows the Confrontation
Clause claim with respect to Sargent’s testimony was
“inadvertently overlooked” by the state court. Johnson, 568 U.S.
at 303.
Once the federal court proceeds to review de novo, the burden
is on the Petitioner to prove that the claimed constitutional error
resulted in “actual prejudice.” Brecht, 507 U.S. at 637 (“Under
[the ‘substantial and injurious’] standard, habeas petitioners may
obtain plenary review of their constitutional claims, but they are
not entitled to habeas relief based on trial error unless they can
establish that it resulted in ‘actual prejudice.’”). Applying the
“substantial and injurious” standard, the magistrate judge
concluded Petitioner did not meet his burden because the relevant
aspects of Sargent’s testimony were otherwise properly before the
jury and the impact of the additional information was “minimal.”
Dkt. 26 at 56.
In arriving at this conclusion, the magistrate judge relied
primarily on the fact that substantially all of the information
presented to the jury through Sargent’s improperly admitted
testimony was also available to them through the grand jury
testimony. Petitioner protests that the magistrate judge
improperly shifted the Commonwealth’s burden onto him by treating
trial counsel’s choice not to call Carlo or O’Connor as witnesses
as evidence that any prejudice to Trotto was so minimal as to be
harmless. See Dkt. 26 at 56 (“Had the issue been significant,
Petitioner’s counsel could have re-called Carlo as a witness to
explore these additional details”); id. at 60 (“There was an
obvious cure for the Confrontation Clause error . . . : O’Connor
himself was available to testify. But Petitioner declined to avail
himself of that cure at trial.”); id. at 61-62 (“The key point is
that Petitioner had every opportunity to call O’Connor back to the
witness stand. That petitioner chose not to speaks volumes.”); id.
at 63 (“That Petitioner chose not [to recall O’Connor and Carlo]
calls into question whether there was any actual Confrontation
Clause violation . . . .”).
The ability to subpoena a witness at trial “is no substitute
for the right of confrontation.” Melendez-Diaz v. Massachusetts,
557 U.S. 305, 324 (2009). The ability of the Petitioner to call
O’Connor or Carlo does not cure the Confrontation Clause violation
because it impermissibly shifts the Commonwealth’s burden onto
him. Id. (“[T]he Confrontation Clause imposes a burden on the
prosecution to present its witnesses, not on the defendant to bring
those adverse witnesses into court.”).
However, as the magistrate judge thoroughly explained, the
significance of Sargent’s testimony must be weighed against the
full trial record to determine whether the error caused “actual
prejudice” and thus violated the Brecht standard. Brecht, 507 U.S.
at 637. I agree with the magistrate judge that the substance of
Carlo’s 2002 statements was already before the jury through Carlo’s
reading of his 2012 grand jury testimony. The new information that
the jury improperly heard from Sargent was that “Samia and Fredette
[threw] a key to the trunk in the air vent to prevent police from
opening the trunk” during the 2 a.m. traffic stop, and that Samia
and Fredette were relieved to not have been arrested. Dkt. 15 at
61-62. The magistrate judge evaluated these additional details
from the 2002 statement and found that their value was “limited.”
Dkt. 26 at 55-56. I agree because Trotto was not even in the car
during the 2 a.m. traffic stop. See Dkt. 10-12 at 53-55. The key
point is that Carlo’s grand jury testimony concerning Trotto’s
presence in the car was already properly before the jury. See Dkt.
10-13 at 11, 82-83.
The magistrate judge also held the “bolstering effect” in
Sargent’s testimony was “tangential, at best.” Id. at 62. For
example, the jury improperly heard Carlo’s threat to feign amnesia
and help the defense through Sargent. Dkt. 10-13 at 168-69. But
Petitioner had already cross-examined Carlo on his reliability as
a witness, eliciting that he: had “memory issues,” id. at 90, had
been told by the prosecutor that the prosecutor “wanted [Carlo] to
give certain testimony at the grand jury,” id. at 91, was
threatened with indictment if he said to the grand jury that he
had no memory, id., and did not remember Trotto “saying anything
that [Trotto] was involved in this case,” id. at 96. Sargent’s
testimony did not raise any confrontation error that “had
substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht, 507 U.S. at 637.
Even after excising references by the magistrate judge to
defense counsel’s choice not to call Carlo or O’Connor, which
Petitioner characterizes as a burden shift, the magistrate judge’s
ultimate conclusion is amply supported by the record. Federal
habeas relief is therefore not available in this case. See 28
U.S.C. § 2254(d).
ORDER
Accordingly, the habeas petition, Dkt. 1, is DENIED.
SO ORDERED.
/s/ PATTI B. SARIS_______________
Hon. Patti B. Saris
United States District Judge