Cormier v. Saba

953 F.Supp.2d 274

Daniel CORMIER, Petitioner,

v.James SABA, Respondent.

Civil Action No. 10–10962–FDS.

United States District Court, D. Massachusetts.

June 21, 2013.

Jessica Vincent Barnett, Office of the Attorney General, Boston, MA, for Respondent.

Behzad Mirhashem, Federal Public Defender Office, Concord, NH, for Petitioner.

MEMORANDUM AND ORDER ON REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

SAYLOR, District Judge.

This is a habeas corpus proceeding under 28 U.S.C. § 2254(d). Petitioner Daniel Cormier was convicted by a jury in state court of one count of rape, one count of assault with intent to rape, and six counts of assault and battery in connection with attacks on two women.

Petitioner alleges four grounds for relief: (1) that his Sixth Amendment right to confrontation was violated by the trial judge's limitation on his counsel's cross-examination of a witness; (2) that his waiver of his right to testify was not made knowingly and intelligently, and that the trial judge erred in failing to grant him a hearing on the issue; (3) that his due process rights were violated by the use of impermissibly suggestive identification procedures; and (4) that his due process rights were violated by the joinder of offenses involving two different victims.

The matter was referred to United States Magistrate Judge Judith Gail Dein pursuant to 28 U.S.C. § 636(b)(1) for findings and recommendations. On November 30, 2012, the Magistrate Judge issued a Report and Recommendation recommending that the petition be denied. Petitioner filed a timely objection to the Report and Recommendation on February 14, 2013. He objected to all of the Magistrate Judge's findings, pointing to the facts and reasoning in his prior filings and setting out additional argument as grounds for his objections.

Upon de novo review, the Court adopts the Report and Recommendation of the Magistrate Judge.

I. BackgroundA. Factual Background

The facts surrounding the crimes that led to petitioner's conviction are set out in the decision of the Massachusetts Appeals Court and are entitled to a presumption of correctness on habeas review. 28 U.S.C. § 2254(e)(1). The Appeals Court described the facts relating to the crimes as follows:

On July 24, 2000, the defendant picked up the first victim, a prostitute, in the Chinatown section of Boston in a greenish-blue Ford Explorer, and drover her to a secluded location. He pummeled her on her face with his fists, climbed on top of her in the passenger seat, and, after she managed to escape from the vehicle, orally raped her. On September 10, 2000, the defendant picked up the second victim, also a prostitute, in Chinatown, in a Ford Explorer (black or ‘like green’), drover her to a secluded location, hit her on the face with his fists, ripped a braid of her hair from her scalp, climbed on top of her in the passenger seat, and demanded sex.

Commonwealth v. Cormier, 2009 WL 2525164 (Mass.App.Ct. Aug. 20, 2009).

A month after the first assault, the first victim—referred to as “EW”—was shown a array of eight photographs, including one of Cormier. Id. She was told that the police had a suspect, and that her attacker might or might not be represented in the photo array. Id. Although the witness's testimony and the detective's testimony conflicted somewhat in terms of how definitively she identified Cormier's photo, both agreed that she selected the photo and initialed the corner. Id.

Five months later, EW attended an eight-person live line-up, which was videotaped. Cormier was the only person who was in both the photo array and the in-person line-up. Although the state appeals court opinion never explicitly says that EW positively identified Cormier at the line-up, it appears to be uncontested that she did.

B. Procedural Background

On January 26, 2001, a Suffolk County grand jury indicted Cormier for the attacks against both women.¹ He pleaded not guilty to all counts.

On August 6, 2002, the government filed a motion for joinder of all charges at trial. Cormier opposed the motion, and shortly thereafter filed a motion to sever. On October 2002, the trial court granted the government's motion for joinder, and denied the motion to sever. Cormier later renewed his motion to sever, which was again denied.

On April 28, 2004, Cormier filed a motion to suppress the identifications of him made by EW, contending that they created a substantial likelihood of irreparable misidentification and violated his state and federal constitutional rights. The court held evidentiary hearings on August 5 and September 3, 2004. The court then denied the motion on September 28, 2004.

A jury trial began on February 2, 2005. During presentation of the government's case, a dispute arose over a line of cross-examination that Cormier's counsel sought to explore. The Appeals Court found the relevant facts as follows:

During direct examination[,] the second victim [referred to as GJ] testified that while she was at the hospital after the incident, her boyfriend and his friend came to visit her. They were outside the hospital smoking when the defendant drove by.

She asked the men to follow him. A chase ensued, and both cars were stopped by police. She yelled that she had been attacked and asked the police to check the defendant's arm where she had bitten him during the struggle. When the police saw the bite, they arrested the defendant.

Defense counsel cross-examined the second victim and elicited her acknowledgment that she had lied to the police about getting a ride to her mother's house from the defendant, and that she also had lied about where the defendant had picked her up. After counsel asked the victim to describe her boyfriend and his friend, he asked “were either one of these men your pimp?” The Commonwealth objected, and a lengthy sidebar ensued.

The judge stated that counsel had to have a good faith basis, that is, admissible evidence for this question, otherwise all he was doing was embarrassing the witness. After discussion with the judge who showed skepticism of counsel's claims, counsel, based on information from the defendant and from his roommate's testimony at the grand jury, made a proffer as follows:

“[A]bout an hour before she showed up at the hospital my client ran into somebody that he believed to be her pimp and her in that general vicinity, and there was a discussion about the payment of money, and that during that discussion which, you know, there was an argument, that she got into the car, she tried to get the keys out of the ignition to disable the car, and when he was trying to push her out which he indeed did push her out, she bit him in the arm and he drove away, and that he, you know, vehemently denies that he took her down to South Boston and beat the living hell out of her.”

The judge in relevant part responded:

“Again, it seems to me ... there's no reason to ask whether somebody is a pimp. You can ask her whether there was any involvement, you know, with the boyfriend or the friend and the defendant before she got into the car. You can ask that, and then you can explore if you believe that there is an [explanation], that you, you know, you have a good faith basis for doing that, and frankly thus far it doesn't make any logical sense to me, this story, but you can explore. If you've got, you know, some reason to believe that some other gentleman of some size did something with the defendant beforehand, you know, it can't be, again, spun out of nothing.”

The judge reiterated that she would not let counsel use the term pimp, “but you can ask whether there's an interaction beforehand, because that's what you're trying to demonstrate.”

After the sidebar conference, counsel asked the witness a number of questions about the time she was picked up, and he then asked the questions set forth in the margin ³ to elicit if there had been a confrontation between the defendant and her boyfriend and her or if she had seen the defendant with another man prior to being picked up. Her answer was “no.” Counsel then turned to another subject.

[FN3] Q: “Was there a confrontation between either you and your boyfriend or any other man that occurred between you and your boyfriend or you and somebody else on the one hand, and Mr. Cormier before you went off to South Boston with him?”

The Court: “I'm afraid I—”

Counsel: “I'm sorry, was that a bad question?”

The Court: “Just try it again because I didn't quite get the question.”

Q: “Other than going to South Boston you say you went to South Boston with my client, correct?”

A: “Yes.”

Q: “And you think that was sometime between nine and eleven?”

A: “Yes.”

Q: “And before that time that you went to South Boston with just him, according to your testimony, did you see him while you were in the presence of another man.”

A: (No response)

Q: “Do you understand my question?”

A: “If before I saw him I was with somebody else and saw him?”

Q: “Right.”

A: “Like another man?”

Q: “Right.”

A: “No.”

Q: “Were there any men with you or in your vicinity near Tyler Street where you were working before you got in the car with Mr. Cormier, as you say, and went to South Boston?”

Prosecutor: “Objection.”

The Court: “Sustained, form. Well, do you want to withdraw the objection? She answered no to the question. I'll let the question in.”

Q: “Did you get into Mr. Cormier's car and try to take the keys out of his car in the area of Chinatown?”

A: “No.”

Cormier, 2009 WL 2525164, at *3.

Cormier did not testify at trial, and the defense did not present any other witnesses. After the Commonwealth rested, the trial judge conducted a colloquy with the defendant. The Massachusetts Appeals Courts describes that colloquy as follows:

[The judge] asked him if he was aware of his absolute right to testify or not to testify, if he understood that the decision was one to make with anyone he wished including his attorneys, but in the end was his decision. The defendant answered “yes” to the judge's questions.

Id. at *5.

...