Sinnott v. Duval

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-1715



                        JEFFREY SINNOTT,

                                

                          Petitioner,

                                

                               v.

                                

                         RONALD DUVAL,

                                

                          Respondent.


APPEAL FROM THE UNITED STATES DISTRICT COURT

                                

               FOR THE DISTRICT OF MASSACHUSETTS

                                

          [Hon. Robert E. Keeton, U.S. District Judge]


Before

                                

                     Boudin, Circuit Judge,

                 Coffin, Senior Circuit Judge,

and Shadur, Senior District Judge.


Max D. Stern for petitioner.

     William J. Meade, Assistant Attorney General, Criminal

Bureau, with whom Scott Harshbarger, Attorney General, was on

brief for respondent.


March 17, 1998


COFFIN, Senior Circuit Judge.  In this appeal from a district

court denial of a petition for habeas corpus, brought under 28

U.S.C.  2254, petitioner Jeffrey Sinnott seeks to set aside his

1987 conviction for first degree murder based on "extreme atrocity

and cruelty."  He was indicted in 1983, along with a co-defendant,

Gary E. Mosso, for the murder of Anthony Tamburro, and found

guilty by a Massachusetts Superior Court jury in 1984, the judgment

being affirmed by the Massachusetts Supreme Judicial Court in

Commonwealth v. Sinnott, 399 Mass. 863, 507 N.E.2d 699 (1987). 

After post-conviction proceedings were resolved against him, he

initiated this action in the district court for the District of

Massachusetts.

   Two asserted trial errors are before us: (I) introduction into

evidence of a written statement of the non-testifying co-defendant,

Mosso, in violation of  Bruton v. United States, 391 U.S. 123

(1968); and (II) certain jury instructions concerning malice,

alleged to have improperly reduced the Commonwealth's burden of

proof.  As to each, the question we address is whether any error

had a substantial and injurious effect or influence on the jury's

determinations.  See Brecht v. Abrahamson, 507 U.S. 619, 637

(1993).  We have concluded that in each case the answer is "No." 

                        I.  Factual Background

   Our analysis will require detailed review of certain areas of

evidence, but we here sketch the general scenario to give context. 

This criminal prosecution stemmed from a fight in the early morning

of December 9, 1983 in a parking lot behind a nightclub in Oxford,

Massachusetts, Kastle's Keep, where the attractions were drinking,

dancing, and listening to a band, "The Fools."  James Peloquin and

his friend, Anthony Tamburro, arrived at Kastle's Keep at 8:30 in

the evening of December 8, and at about 1:30 a.m. went to

Tamburro's car in the parking lot to get a demonstration tape of

another band.  They encountered a group of three men, petitioner

and co-defendants Mosso and Blanchard.

   Conversation then took place with Tamburro concerning the

purchase of some cocaine.  Soon Mosso purchased a half gram for

fifty dollars.  Shortly thereafter, he complained about the quality

and wanted his money back.  A fight started between Tamburro and

Mosso, and Tamburro fell or was thrown on the ground, where he was

repeatedly struck by Mosso.  At this point petitioner intervened,

kicking Tamburro in the face.  The extent of petitioner's continued

participation is the focus of much of the testimony.  Suffice it to

say here that after only several minutes, Tamburro was rendered

inert and unconscious, suffering from abrasions, bruises,

lacerations, hemorrhaging and fractures, the injured areas ranging

from cranium to testes.  Mosso and petitioner, in a car driven by

Blanchard, sped away from the scene as several persons summoned by

Peloquin came out from the Keep.  Tamburro soon stopped breathing,

was administered oxygen, received CPR ministrations, and was taken

to a hospital where he was pronounced dead at about 2:52 a.m.

                         II.  The Bruton error

   The first error alleged by petitioner is the trial court's

admission of a written statement given the police by Mosso. 

Petitioner submitted his own written statement to police in which

he said that he had kicked Tamburro only once with the side of his

foot, then had stepped aside, trying to keep others from

interfering.  Meanwhile, Tamburro was getting "beat bad" by Mosso. 

Mosso's statement represented petitioner as jumping in, early in

the fray, and repeatedly kicking for several minutes while he,

Mosso, was trying to persuade him to withdraw.  Mosso ascribed all

injuries inflicted on Tamburro to petitioner.  Neither petitioner

nor Mosso testified, and objection to admission of Mosso's

statement was properly made.     

A. Guidelines of Review

   While there was a misimpression of the admissibility of

Mosso's statement at the trial stage of this litigation, based on

no longer applicable caselaw, it is now undisputed that admission

of the incriminating statement violated the Confrontation Clause of the Sixth Amendment because petitioner was deprived of the

opportunity of cross examination.  See Bruton, 391 U.S. at 137.  

   The Supreme Court has made it clear that on collateral review

of habeas cases involving trial error, the test for harmless error

is not so rigorous as that demanded by Chapman v. California, 386

U.S. 18, 24 (1967) (where the prosecution must establish

harmlessness beyond a reasonable doubt), but follows the standard

enunciated in Kotteakos v. United States, 328 U.S. 750, 776 (1946):

did the error have "substantial and injurious effect or influence

in determining the jury's verdict"?  Brecht, 507 U.S. at 631, 637. 

   In arriving at this conclusion, the Court observed that a

constitutional violation occurring during presentation of the case

to the jury is amenable to harmless-error analysis because it "'may

. . . be quantitatively assessed in the context of other evidence

presented in order to determine [the effect it had on the trial].'"

Id. at 629 (citing Arizona v. Fulminante, 499 U.S. 279, 307-308

(1991)).  While the Court determined that habeas relief should not

be granted based on merely a "reasonable possibility" that the

error contributed to the verdict, id. at 637, it also recognized

that relief should not be denied simply because a reviewing court

felt that a petitioner "would have been convicted even if the

constitutional error had not taken place."  Id. at 642 (concurring

opinion of Justice Stevens, who cast the deciding vote).  As we

said in Gilday v. Callahan, 59 F.3d 257, 269 (1st Cir. 1995),

   [W]e . . . must consider -- to restate the Brechtstandard -- whether the error was of such magnitude that

   it actually casts doubt on the integrity of the verdict. 

   This is the difference between a possibility and a

   probability. 

Moreover, our review is plenary and the burden of establishing

harmlessness is on the prosecution.  O'Neal v. McAninch, 513 U.S.

432, 436 (1995).

   We derive some additional guidance for our review from

Kotteakos itself.  We are told that errors "conceivably may be

altogether harmless in the face of other clear evidence, although

the same error might turn scales otherwise level."  328 U.S. at

763.  A court must have "the conviction . . . that the error did

not influence the jury, or had but very slight effect. . . ." Id.at 764.  The Court's careful comparative weighing to distinguish a

case in which the same error resulted in a reversal, Berger v.

United States, 295 U.S. 78 (1935), see 328 U.S. at 766-774, informs

our own analysis of the likely impact of the offending evidence.

   B. The Evidence

   The question we must consider, therefore, is whether admission

of Mosso's statement implicating petitioner as the primary

combatant had such a "substantial and injurious effect or

influence" that it "casts doubt on the integrity of the verdict." 

Central to this issue is the evidence concerning the extent and

nature of petitioner's involvement in the fracas and his state of

mind.  We shall examine in detail the relevant testimony of four

non-party eyewitnesses, that of the pathologist who conducted the

autopsy, written statements given the police by both petitioner and

Mosso, and the closing argument of the prosecutor, who commented on

the two defendants' statements.  We shall then assess the likely

impact of the admission and use of the Mosso statement.

   (1) Eyewitness Testimony.  We begin by identifying the crucial

and relevant testimony of each of the four non-party witnesses as

to the participation of petitioner in the beating of Tamburro.  It

is clear that the full import of the testimony cannot be adequately

conveyed by merely listing the varying number of blows or kicks

that each witness saw petitioner inflict.  For not only did the

witnesses observe for different periods of time, but the

surrounding circumstances also add relevant detail.  And since our

task is to gauge the probability of Mosso's statement having had a

substantial effect on the jury's deliberations, we strive to have

as complete a picture in mind as did the jury.

   James Peloquin was the first witness.  A good friend of the

victim, he was on the scene at the very beginning and remained

until very nearly the end.  From 8:30 p.m. until 1:30 a.m. he had

only three alcoholic drinks. These are the major points he made:

   -- After Mosso complained of the quality of the cocaine

Tamburro had sold him, he demanded a sample of Tamburro's personal

supply and was offered a "taste."  He accused Tamburro of not

trusting him, and then took off his jacket.  Petitioner took off

his own jacket, saying, "So it is going to be one of those."

   -- Mosso then hit Tamburro in the face, Tamburro struck back,

hitting him lightly, the two wrestled, and Tamburro tripped and

fell with Mosso on top of him.  Mosso pinned Tamburro's left arm

and head, and elbowed him in the eye five or six times.

   -- As Tamburro was wriggling, trying to free himself, Peloquin

started over but was hit on the back of the head by petitioner and

fell down as a result.

   -- Petitioner then approached Tamburro and, as he was trying

to get up, his hands behind his back in a lifting position,

petitioner kicked Tamburro in the face "right square," the front of

his ankle hitting the left side of the bridge of Tamburro's nose.

   -- Tamburro fell on his back again, legs to one side.  Mosso,

standing at Tamburro's feet, started kicking him in the lower

abdomen, and petitioner, standing above the upper part of his body,

"was still kicking Tony" around the face.  Peloquin could not say

how many times either man struck Tamburro.  During this time,

Tamburro was apparently helpless, doing nothing. 

   -- Peloquin then grabbed Tamburro with a bear hug from the

rear and dragged him several feet away.  He was being hit by both

Mosso and petitioner, and then petitioner kicked him in the ribs. 

Peloquin dropped Tamburro and headed toward the nightclub.  Before

entering the club to obtain help, he looked around and saw

petitioner give one final blow to Tamburro's head.  Peloquin

acknowledged on cross-examination that he had given four separate

statements to the police, all of which varied some in detail.  When

asked if he had given a statement in which he had said that he did

not remember who administered the last kick, Peloquin replied that

what he had said on the stand was his best memory.

   -- Asked about petitioner's sobriety, Peloquin said he seemed

very drunk, and was swaying and slurring his words.  He did not

recall his staggering or messy clothes, but said that counsel's

description of petitioner as "falling down drunk" was a fair

statement.

   Stephen Amaral, who did not know Tamburro, had come to

Kastle's Keep with his friend Ducharme.  He had consumed many beers

and White Russians (kahlua, vodka and milk) and described himself

as very drunk by the time he arrived at the nightclub, at about

12:30 a.m.  The two left at approximately 1:45 a.m.  These were

Amaral's observations about the fighting:

   -- From the passenger seat of Ducharme's pickup truck, he saw

two men going down on the ground, the smaller one on the bottom,

the larger one on top.  The larger man was facing the feet of the

smaller one and punched him in the groin three times.  Amaral

looked away to talk to Ducharme.  When he looked back, the smaller

man was on the ground, his back leaning against a car.  The larger

man, whom he observed to have dark hair, kicked him twice in the

head.

   -- Then another person, a blonde man, was on the left of the

reclining man; he and the larger man then each kicked the victim in

the head twice. "They kicked him as if you were going to kick a

football on a kickoff or something." 

   -- The victim then stood up, ran about ten feet, and fell down

on his back. Then "[t]he kid with blonde hair went over to him and

halfheartedly kicked the side of his face, turning his head from

one side to the other."  The dark-haired assailant approached the

victim and appeared to be checking his pulse.  As a group from the

nightclub came running toward them, the two men got in a car and

took off.

   Gary Ducharme had drunk only two beers in two hours.  When he

and Amaral left Kastle's Keep, Ducharme was to drive.  He testified

that Amaral did not appear "to be bad to me at all," but could not

be sure of his condition.  Ducharme's relevant testimony follows:

    -- He was trying to fix the car radio when Amaral called his

attention to a fist fight between two men, one about eight inches

taller than the other.  The two fell, the larger one on top and

facing the other's feet; he punched his opponent in the groin three

times.  The smaller man was on the ground, tried to push himself

up, but was kicked in the face two or three times.

    -- At this point Ducharme observed "the other taller kid

going in and kicking him also."  This person, a blonde haired man,

kicked the prone man in the face, alternating with the other man,

kicking him "once or twice."  The other man also kicked once or

twice.

   Douglas Cassidy had gone to the same high school as Tamburro,

but the two were not friends.  He had consumed approximately six to

eight drinks from 9:30 p.m. to 1:30 a.m.  Although "having a good

time," he described himself as "quite aware."   When he and his

friends prepared to leave, he observed:

   -- Two persons were standing beside another, who lay face up

on the ground, and were kicking him.  The blonde haired person was

on the left and kicked the prone individual "a number of times" in

"the upper body, head area."  The other man also kicked a number of

times in the same area.

   -- Cassidy then ran over and said to petitioner, "You're a

loser."  He raised the victim to a sitting position, and the two

men who had kicked him took off in a car. 

   (2) The Co-defendants' Statements.  In addition to this

testimony from non-party witnesses, a written statement from each

defendant was admitted into evidence.  Petitioner's statement was

in the form of an interview with a state trooper and included the

following points:

   --  After Mosso purchased the cocaine from a man petitioner

described as shorter than himself, Mosso tried it.  Shortly

thereafter, petitioner got out of the car and saw Mosso and the

other man fighting. 

   -- Petitioner then got out of the car, ran over, and gave

Tamburro a side kick in the ribs.  Tamburro went down, got up

again, and continued fighting.

   -- Petitioner "kept other people from jumping into the fight."

   -- The "kid" was "getting beat bad . . . .  Gary (Mosso) kept

kicking the kid after he was down.  I think he went nuts."

   -- That night, petitioner was wearing black combat boots.

   Mosso's statement contained these remarks:

   -- The dispute was over the quality of the half gram of

cocaine that Mosso had bought for $50.  Mosso complained and wanted

his money back.  The "kid," about 5 feet eight or nine inches tall,

refused, grabbed Mosso by the chest, and hit him in the forehead. 

The two wrestled to the ground, punching at each other.  When Mosso

tried to get up, the kid grabbed his right leg by the ankle; Mosso

started kicking to get loose and managed to free his leg.

   -- At this point, petitioner jumped out of the car and started

kicking the kid, kicking him a few times in the face and shoulder

area.

   -- Mosso told petitioner, "Forget it, cut it out, let's get

out of here."  Although Mosso went back to their car, petitioner

stayed and continued to kick the kid for three minutes.

   -- Mosso did not think he "caught [the kid] with any punches

at all," and believed that the kid was not hurt by him, but "was

hurt bad after Jeff [petitioner] got through kicking him." 

   (3) The Medical Testimony.  Dr. Sussman, Chief of Pathology of

the Worcester City Hospital, conducted an autopsy, had photographs

taken, and testified at length.  In very summary fashion, these

were his observations and conclusions:

   -- External injuries included multiple abrasions, lacerations,

and bruises on the head, face, and both ears, and abrasions on both

cheeks; a crepitant nose, with a bubbly feeling; a swollen and

hemorrhaging upper lip; abrasions on right and side portions of the

back; multiple abrasions on right upper, left side, and front of

chest; abrasions on top of the left shoulder; abrasions on knee;

and a tear in one thumb.

    -- Internal injuries included the brain, which was swollen

and had moved from normal position to compress the pons medulla

(responsible for controlling respiration and heart beat); the

scalp, which experienced hemorrhaging on the left side, near the

ear; the larynx and trachea, which contained blood and stomach

contents; two fractured ribs, with underlying contusions to the

lungs and associated bleeding; the abdominal wall and large

intestine, which were hemorrhaging; a bruised spinal cord and

hemorrhaging adjacent to the spine; hemorrhaging also seen in and

around testicles.

   -- All injuries were consistent with kicks except those to the

testes, which were more consistent with blows from a fist or elbow.

   -- Death was caused by "multiple blunt trauma," there being at

least twelve injuries: at least two on the chest, five on the face,

one on the back of the neck, one on the hand, one on the shoulder,

one on the back, and one in the testes.  The most likely cause of

death lay in traumas to the head, although the injuries to the

chest, neck, testes, and abdomen could have contributed.

   (4) The Prosecutor's Closing Argument.  Petitioner claims that

the prosecutor's closing argument, although not evidence, "enhanced

and fortified" the Bruton error by comparing and contrasting the

two defendants' statements "with dramatic oral and visual

fingerpointing."  Here are the salient portions:

   If you believe everything that [defendants' counsel] said

   on behalf of their respective clients, . . . then Mr.

   Mosso, at least, and Mr. Sinnott, didn't do anything, and

   Mr. Tamburro is really not dead.  Because if you listen

   exclusively to Mr. Sinnott and Mr. Mosso, neither one of

   them hurt [Tamburro]. If you listen to both of them, what

   have they done with respect to this trial . . . all the

   way up to today in the final argument, when both of them

   in effect went like this (illustrating by crisscrossing

   one hand over the other and pointing index finger) "I'm

   not responsible."



   . . . 



        Well, I would submit to you, ladies and gentlemen,

   that based on all the evidence that you have heard from

   all the other witnesses, that both Mr. Mosso and Mr.

   Sinnott were making self-serving statements.  They both

   didn't tell the complete truth.  They both told the

   police what they wanted to convince the police what

   happened. "Look, I was involved, but I am really not the

   one who is guilty here.  It is him."

C. Our Assessment Absent the Mosso Statement

   In Levasseur v. Pepe, 70 F.3d 187, 193 (1st Cir. 1995), we

identified three factors that are relevant to determining if the

jury was "substantially swayed" by offending evidence: "(1) the

extent to which the error permeated the proceeding, (2) the

centrality of the issue affected by the error to the case as

actually tried and (3) the relative strength of the properly

admitted evidence of guilt."  In this case, there is no question

that the issues to which the Mosso statement is most relevant --

petitioner's mental states and degree of atrocity -- are central. 

We shall discuss the first factor, prevalence, when we consider the

impact of the statement in the next section.  In this section, we

deal with perhaps the major test of harmlessness -- the relative

strengths of the cases for the prosecution and the defense absent

the offending evidence.

   We first sort out the extent of agreement or disagreement in,

and the nature of, the non-party eyewitness testimony so that we

can assess its general force and weight.  We then evaluate the

medical evidence.  Finally, we consider the potency of the

petitioner's case.

   Although the evidence shows that each of the eyewitnesses had

consumed some alcohol on the night in question, there is little

basis for challenging the sobriety of two them -- Peloquin and

Ducharme, neither of whom had had much to drink.  Cassidy was

"feeling good," but his claim of being aware is consistent with the

span of time over which he had consumed his drinks.  Only Amaral

admitted to being drunk, with some justification based on his

record of consumption.  As for opportunity to observe, Peloquin,

significantly, was on the scene from the beginning to almost the

end, and both Amaral and Ducharme were present for critical parts

of the fight.  Cassidy was on the scene for the final act.

   Most of the evidence, and all of it concerning the core

evidence of kicking, was remarkably consistent and corroborative. 

Although not evidence contributed by the eyewitnesses, petitioner's

own statement that he was wearing black combat boots at the time

establishes this notable fact.  The consensus narrative began with

the inception of the fight between Tamburro and Mosso, their

wrestling, and falling to the ground.

   Peloquin saw Mosso elbowing Tamburro in his eye five or six

times.  Amaral and Ducharme saw him punching Tamburro in the groin

three times.  We know from the medical testimony that the testes

were injured.  In either event, Tamburro at this juncture was

supine and helpless.  Then came petitioner's entry into the affray,

kicking Tamburro.  Peloquin is the only non-party witness to a

specific first kick, but petitioner in his statement confirmed this

fact, differing only in that he said it was a side kick in the

ribs, not a side kick to the bridge of the nose.  

   Then came the period of joint kicking by both petitioner and

Mosso, one on either side of Tamburro, the smallest of the three. 

The quantitative estimates do not dramatically vary: Peloquin

refers to petitioner as "still kicking" around the face although he

could not give a number of times either man kicked; Amaral said

both men kicked Tamburro in the head twice, much in the manner of

kicking a football at kickoff; Ducharme described both men as

"alternating" in their kicking "once or twice"; and Cassidy

described both men as kicking "a number of times" in "the upper

body, head area."

   Finally, there was substantial consensus, and no

contradiction, as to a final kick by petitioner.  Peloquin's best

memory was that it was petitioner who administered the final blow. 

Amaral described it as a half-hearted kick, turning Tamburro's head

from one side to the other.  And Cassidy, while not identifying a

single final blow, was sufficiently moved by what he saw to rush

toward petitioner and say, "You're a loser."

   Not corroborated by other witnesses, but in no way

contradicted, was Peloquin's testimony that, at the very outset,

petitioner not only removed his jacket along with Mosso, but made

the statement, "So it is going to be one of those"; that, as

Tamburro was wriggling to escape Mosso's elbowing in his eye,

petitioner hit Peloquin on the back of his head as he started to

intervene; and that, again, when Peloquin was trying to drag

Tamburro to safety, petitioner kicked him in the ribs, causing him

to drop Tamburro.  Subsequent medical examination at St. Vincent's

Hospital corroborated this testimony, revealing contusions in

Peloquin's rib areas.

   To this testimony must be added the findings of a pathologist

reviewing his autopsy of Tamburro: at least twelve separate

injuries, comprising abrasions, bruises, lacerations, swellings,

discolorations, hemorrhaging, fractures to the head, chest,

abdomen, neck, spine, and other vital parts. 

   All this presents a cohesive, consistent picture of an affray

pitting two larger men against a smaller one, with Mosso initiating

and petitioner intervening after the smaller man, on the ground and

on his back, had suffered a series of hard blows to his eyes and/or

testicles, then the two continuing to kick, with petitioner staying

in to the end.  The injuries were multiple and serious from testes

to cranium, and inflicted largely through the medium of violent

kicks with, at least in petitioner's case, heavy boots; so many

discrete injuries occurred in so many parts of the victim's body

that they could not have been produced by only a few kicks or

blows.  Moreover, the short time span of the affair argues for more

than one participant.  Perhaps even more persuasive of continued

dual participation is the extent to which injuries were observed to

both ears, both cheeks, and both sides of the victim's chest,

indicating more than one assailant.

   To borrow the language of the Court in Brecht, "the State's

evidence of guilt was, if not overwhelming, certainly weighty." 

507 U.S. at 639.

   Against this evidence, petitioner's case is not impressive. 

His claim that all the eyewitnesses had been drinking overlooks the

different amounts of alcohol consumed and the time span of

consumption, indicating that only Amaral could be said to be drunk. 

As for the minor differences in the numbers of kicks observed, the

witnesses' total testimony, as we have seen, was remarkably

internally consistent for a violent, short-lived fracas, observed

in the early morning hours by four people at slightly different

times from different vantage points.  Moreover, it is likely that

petitioner's own statement hurt rather than helped him.  That he

would have rushed in after Mosso had Tamburro on the ground and

kicked him in the ribs, then suddenly have withdrawn and merely

tried to keep other people from jumping into the fight while Mosso

was going "nuts" and beating Tamburro, seems counter intuitive.

        After our minute review of all the evidence, quantitative and

qualitative, from eyewitnesses and the pathologist, as well as from

petitioner, we conclude that, absent Mosso's statement, the

evidence was far from being in equipoise, but rather was

impressively cogent on the part of the prosecution, any chipping

away as the result of vigorous cross examination being canceled out

by the unlikely persuasiveness of petitioner's version.

  D. Likely Impact of the Mosso Statement  

   Petitioner argues that the extent of his participation in the

beating was critical to two issues: whether he exhibited malice,

which is a prerequisite to a finding of even second degree murder

(requiring an intent to kill, an intent to do grievous bodily harm,

or circumstances that would have led a reasonably prudent person to

believe there was a plain and strong likelihood of death), and

whether the killing was marked by "extreme atrocity and cruelty,"

one of the two bases for a first-degree murder finding (the jury

having explicitly ruled out the alternative basis, premeditation). 

Petitioner argues that Mosso's statement "tilted the balance of the

evidence," corroborating the testimony of Peloquin and Cassidy, who

testified to more extensive involvement on his part than did Amaral

and Ducharme.

   As we have just concluded, we see no initial "balance" to be

tilted.  But assuming we are wrong in our assessment, what impact

was likely from Mosso's statement?  When we juxtapose Mosso's

account against this critical body of evidence, we assess the

likely effect as follows.  Mosso's description of the beginning of

the episode, ending with both him and Tamburro on the ground, adds

nothing to other accounts except the highly unlikely detail that

Tamburro, the smaller man who was content to let the transaction

stand, started the fight.    

   Mosso's statement about petitioner's intervention and kicking

Tamburro adds little to petitioner's own admission.  It departs

from petitioner's version by going beyond a single kick to a few

kicks in the face and shoulder area.  This observation concededly

paralleled the testimony of Peloquin and Cassidy.  If the number of

kicks were the only important fact, and if Mosso's statement

possessed earmarks of credibility, this might be a closer case.

   But not only did the testimony of all four eyewitnesses point

to a brutal boot-kicking of a defenseless, felled person in the

head and upper body, inflicting multiple injuries, but Mosso's

statement also had to have fared poorly in the jury's minds.  In

the first place, Mosso already had demonstrated his ability to

fabricate, with a first statement in which he denied knowledge of

Tamburro or any fight.  Even more important, however, was the

balance of the statement, in which Mosso portrayed himself as

leaving the fray, asking petitioner to desist, and sitting in the

car while petitioner continued kicking Tamburro for three minutes. 

This version not only contradicted all the eyewitnesses but also

was inherently implausible.  After all, it was Mosso who had paid

the fifty dollars and was the initial fight participant.  His

further statement that he did not think he had inflicted any

damage, and that all of the injuries had to be caused by his co-

defendant, could not have affected the jury in any manner adverse

to petitioner.

   We therefore conclude that no reasonable jury could have been

influenced in its determinations, not to mention substantially

influenced, by Mosso's statement.  We have been pointed to no place

in the trial where it played a role except in the prosecutor's

closing argument, a subject to which we now turn.  Petitioner's

claim is that, by coupling petitioner and his co-defendant with

their reciprocal finger-pointing statements accusing the other, the

prosecutor effectively canceled out petitioner's statement.

   If the closing argument's use of the Mosso statement were both

the dominant motif and the source of significant prejudice that

otherwise would not have existed, the "prevalence" factor might be

satisfied and perhaps the previous imbalance of evidence might be

overcome.

   But such is not the case here.  In the first place, we note

that petitioner is now asking us to ride two horses, going in

opposite directions.  On the one hand, petitioner asserts that the

prosecutor's use of the Mosso statement "increased the likelihood

the jury viewed Sinnott's participation as greater than it was." 

On the other hand, he also asserts that the evil lies in the

prosecutor's deft claim that each was pointing the finger at the

other, and thus Mosso's statement improperly canceled out that of

petitioner.  It is difficult to see how the Mosso statement could

at the same time add to the weight of the state's case and also be

dismissed as another transparent attempt to shift blame.

   Nevertheless, even though the finger-pointing argument was not

made at trial or before the state court, we shall, like the

district court, consider it.  In homage to a search for prevalence,

we note that in the course of an eleven-day trial, occupying 1,389

pages of transcript, the prosecutor's challenged remarks occupied

at most four pages, one at the very beginning of his 37-page

argument and three two-thirds of the way through.  The significant

fact is that the predominant part of the prosecutor's closing

rested on the evidence, not the statements of the defendants.  

   More to the point is that the basic message conveyed by the

prosecutor could and undoubtedly would have been conveyed had there

been no Mosso statement, namely, that petitioner was obviously

trying to shift blame.  When counsel argues that, by showing that

another defendant succumbed to the instinct of self preservation,

the prosecutor unfairly demeaned petitioner, we cannot quite see

the logic.  But perhaps, apart from logic, there was some impact

from the prosecutor's dramatic ploy of crossing his hands with

fingers pointing.  All we can say as to this is that at the very

most any additional effect on the jury's deliberations was

"slight."

   We are convinced from our meticulous review of this trial that

the admission of the Mosso statement and the use made of it by the

prosecutor in his closing argument did not in all probability have

a substantial and injurious effect or influence on the

determinations of the jury.    

                 III.  The Instructions on Malice            

   Petitioner has advanced four claims of error in the trial

court's jury instructions.  None was made at trial.  The

Massachusetts Supreme Judicial Court and the district court have

considered them at considerable length and found no merit.  At this

juncture, we see no point in addressing issues of exhaustion, other

procedural problems, or even the correctness vel non of the several

instructions.  Just as was the case with the Bruton error we have

discussed, the substantive question is whether, in this collateral

consideration of the record as a whole, any errors, singly or

collectively, have been demonstrated by the Commonwealth as having

had no substantial and injurious effect or influence in determining

the jury's verdict.  Libby v. Duval, 19 F.3d 733, 738-40 (1st Cir.

1994) (applying Brecht harmless error review to error in giving

mandatory presumption instruction).

   Petitioner's underlying theme is that the instructions failed

in various ways to satisfy Massachusetts case law on how to charge

malice, a state of mind that is a prerequisite for finding either

first or second degree murder.  Massachusetts cases establish that

malice can be proven in one of three ways: (1) showing that the

defendant, without justification or excuse, possessed an intent to

kill, (2) showing that the defendant, without justification or

excuse, possessed an intent to cause grievous bodily harm, or (3)

showing circumstances in which a reasonably prudent person would

have known there was a plain and strong likelihood that death or

grievous bodily harm would result.  See, e.g., Commonwealth v.

Grey, 399 Mass. 469, 470 n.1, 505 N.E.2d 171, 173 n.1 (1987);

Commonwealth v. Huot, 380 Mass. 403, 408, 403 N.E.2d 411, 414

(1980).  Although the trial court discussed malice at considerable

length, it did not list the three alternatives as such.

   As might well be expected in a criminal prosecution of three

defendants charged with the most serious offenses, the court's

instructions were lengthy, encompassing forty pages of transcript. 

Those relevant to the claims at issue occupied some fifteen pages. 

Petitioner's claims are based on passages appearing on three of

these pages.  Our task is to view these statements in the context

of a complicated and lengthy set of instructions and to assess the

extent to which they would likely have affected the jury's thought

processes.

   We discuss first an instruction that petitioner describes as

"automatically equating use of a deadly weapon with malice."  The

court said:

   A killing may be malice, and consequently murder, even

   though the slayer did not wish to cause death.  If a man

   intentionally and without legal justification uses upon

   the body of another a deadly weapon, such as a gun or a

   knife, and death results, a jury may infer that malice

   aforethought is present.

Petitioner asserts that the court never explained that there must

be an intent to kill, or to do grievous bodily harm, or that a

prudent person would have known that he was creating a plain and

strong likelihood of death.  

   This assertion overlooks a number of other efforts by the

court to explain the kinds of actions that would be required to

reach the malice threshold.  We mention three.  The first came

several pages earlier than the above quoted passage and addressed

the definition of a dangerous weapon.  Although the court was

discussing the charges against Blanchard, who was being prosecuted

as an accessory after the fact to the crime of assault and battery

by means of a dangerous weapon, it had to explain the offense of

the principals.  It identified two kinds of dangerous weapons,

quoting from an unidentified case in describing the second type:

   One type is by design a dangerous weapon, guns, daggers,

   they are designed to do serious bodily injury to people

   . . . .



   "[Another type] may also be defined as an instrument . .

   . which, because of the manner in which it is used, or

   attempted to be used, endangers the life or inflicts

   great bodily harm, or is calculated as likely to produce

   death or serious bodily injury . . . ."

     

   It is for you to decide in this case whether as to a

   particular charge, an instrument such as a foot covering,

   was used in such a manner that in the particular

   circumstances of the case, it was a dangerous weapon.  

   With this discussion of a dangerous weapon and its use, the

court, a few pages after the passage first quoted, fleshes out

"malice aforethought" by stating that if the jury finds beyond a

reasonable doubt that an assault and battery by means of a

dangerous weapon has been committed, causing death, and 

   that the murder was the natural and probable consequence

   of the commission of the crime, and . . .  that that

   crime, assault and battery by means of a dangerous

   weapon, is a crime that involved inherent danger to human

   life, then the fact of the commission of that crime, with

   death resulting, allows you to find the presence of

   malice aforethought from those facts.  So that under

   those circumstances, you would have at least a murder in

   the second-degree. (Emphasis added.)

   From this overview of the instructions, it is clear, whether

required or not, that all three alternative ways of meeting the

malice requirement were discussed by the court.  Petitioner himself

concedes that "the court instructed, according to the first prong

of malice, that malice may be found from an intent to kill."   The

third prong, knowledge of a prudent person that his actions created

a plain and strong likelihood of death or grievous bodily harm, was

substantially covered by the court's references to using an

instrument in a way "calculated as likely to produce death or

serious bodily injury," to murder being "the natural and probable

consequence" of the use of the dangerous weapon, and to a crime

"that involved inherent danger to human life."   Any difference

between these comments and the "plain and strong likelihood"

language of the cases is so slight as not to weigh significantly in

the scales of probable injurious effect.

   As for the second prong, intent to do grievous bodily harm,

the fact that the jury rendered a special finding of extreme

atrocity and cruelty excluded any possibility that the jury was

misled by the absence of a haec verba instruction.  For the court,

in addressing the requisites of first degree murder, after saying

that more than ordinary atrocity or cruelty was needed, said:

   Repeated violent blows have been held to evince such

   ferocity as would warrant a finding of extreme atrocity

   or cruelty.  

The court added, quoting from a case:

   "Evidence that a defendant struck the fatal blow 'for

   kicks,'" using the colloquial expression.  "A crime that

   was committed with such savagery and brutality, where

   there were repeated violent blows, which were held to

   evince a particular ferocity that would constitute

   extreme atrocity and cruelty.

   In our view, there is accordingly no likelihood that the jury

would have acted on the assumption that mere use, simpliciter, of

a deadly weapon, resulting in death, without the requisite intent

or knowledge of consequences, was a sufficient basis for its

conclusions.  The same extracts from the instructions suffices to

dispose of two other claimed errors.

   Very similar to the first claim is the assertion that the

court erred in creating a mandatory presumption, in violation of

the teaching of Sandstrom v. Montana, 442 U.S. 510 (1979), by use

of the following language:

   If you have a death resulting under the circumstances I

   described by one who has committed a felony, an assault

   and battery by means of a dangerous weapon, then you have

   a murder in the second-degree.

This excerpt is found in the penultimate paragraph of the entire

charge and is clearly part of a thumbnail summary.  It is

immediately preceded by a page listing the "circumstances" it

references; the jurors were instructed that to find malice

aforethought from the commission of the crime of assault and

battery by means of a dangerous weapon, they must conclude that the

crime is one in which "the natural and probable consequence" is

death and one which involves "inherent danger to human life."

   The language pinpointed by petitioner, suggesting a mandatory

presumption, seems to us effectively qualified and explained by the

earlier passage.  See Hill v. Maloney, 927 F.2d 646, 649 (1st Cir.

1990).  In any event, even if any error remains, there is in our

judgment no likelihood that it had any substantial influence upon

the jury's deliberations.

   The same analysis and conclusion apply to petitioner's third

claim of error, directed to this extract:

   There also, of course, can be actual malice.  You can

   find there is ill will and there is hatred and harboring

   of a grudge, motives of revenge or punishment.

Petitioner claims that this instruction permitted the jury to find

malice "upon proof of a mere intent to injure," considerably

watering down the required intent or knowledge.

   Once again, a statement is taken out of context and without

regard to other qualifying instructions.  In the first place, the

statement follows a reference to situations permitting the

inference of malice from use of a deadly weapon, and is part of a

systematic effort to limn the contours of malice without at that

point filling in details.  In the second place, petitioner strains

the text in his effort to find error, going beyond the listed

examples which suggest mental states prior to the petitioner's

involvement in a fight -- ill will, hatred, a grudge, revenge,

punishment.  Ordinarily one would not characterize an instantaneous

decision to step into a fight to help a friend as malice.

   But, even according "ill will" the meaning of "intent to

injure" urged by petitioner, the passages we have quoted above

adequately flesh out the kind of action that must accompany the

motive of ill will to meet the requirement of malice.  Moreover, we

cannot imagine how a jury could arrive at a finding of extreme

atrocity and cruelty if it felt that petitioner harbored a mere

intent to injure, rather than at least an intent to cause grievous

bodily harm.  This instruction, if not explained and cured by

context and other instructions, most certainly possessed no

likelihood of influencing the jury's deliberations.

   The final claim of error is that, contrary to Massachusetts

law, the jury was instructed that it might consider whether

defendant had an impaired capacity because of his consumption of

alcohol solely as to "first-degree murder, but not on any other

degree of offense."  Petitioner cites Commonwealth v. Henson, 394

Mass. 584, 582, 476 N.E.2d 947 (1985), for the proposition that

voluntary intoxication is relevant to all three species of malice,

and thus to second-degree murder as well.  The government responds

that, even if there were an error of state law, such is not a basis

for habeas corpus relief if there is no violation of the

Constitution, laws, or treaties of the United States, citing

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), and it points out

that the defense of voluntary intoxication is not constitutionally

required.  See Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013,

2024 (1996); Robinson v. Ponte, 933 F.2d 101, 104-105 (1st Cir.

1991).  We do not reject the government's argument, but prefer to

rest on what we think is dictated by the jury's decision.

   In the somewhat restrained review we conduct under the

dictates of Brecht, we have difficulty in understanding how, in

light of the court's lengthy instructions on alcohol-induced

impairment of mental capacity to engage knowingly in acts of

extreme atrocity or cruelty, one could argue that restricting such

instruction to first degree murder was prejudicial.  After all,

there was no conviction as to any offense except first degree

murder by extreme atrocity or cruelty.  As to this, the court went

beyond saying that the jury could consider defendant's mental and

emotional state in light of his alcohol consumption.  It added:

        Let me be a little bit more precise regarding that. 

   If the jurors determine from the evidence that a

   defendant had substantially reduced mental capacity at

   the time that the murder or the crime was committed, they

   can consider the effect, if any, that the defendant's

   impaired capacity had on his ability to comprehend the

   consequences of his choices.  Thus, a defendant's mental

   impairment is to be weighed in evaluating the evidence of

   the manner and means of inflicting death . . . .

   In light of the special verdict finding of extreme atrocity or

cruelty, pursuant to these instructions, we do not see how it was

possible for the absence of a voluntary intoxication instruction on

the issue of malice to have prejudiced petitioner.  Although a

negative finding as to extreme atrocity or cruelty would not, under

the instructions, have barred a second degree murder conviction,

the finding of extreme atrocity, notwithstanding the evidence of

drunkenness, presupposed a determination of "ability to comprehend

the consequences of his choices."  That the jury found first degree

murder in these circumstances eliminates the possibility that the

absence of instruction on second degree murder was prejudicial.  In

sum, we discern no likelihood that this claimed error influenced

the jury's thought processes.

   Accordingly, our review of the instructions indicates no error

cognizable under habeas corpus strictures.

   AFFIRMED.