United States Court of Appeals For the First Circuit
No. 19-1552
RODERICK TAYLOR
Petitioner, Appellant,
v.
SEAN MEDEIROS,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Howard, Chief Judge, Lynch and Lipez, Circuit Judges
Dany Allan Curhan for appellant. Anna Esther Lumelsky, Assistant Attorney General, Massachusetts Attorney General's Office, with whom Matthew P. Landry, Assistant Attorney General, Massachusetts Attorney General's Office, was on brief, for appellee.
December 23, 2020 LIPEZ, Circuit Judge. Following a nearly eight-week
jury trial in Massachusetts state court, Roderick Taylor was
convicted of murder in the second degree and sentenced to a
mandatory term of life imprisonment. Taylor claims that his
trial was fundamentally unfair in violation of his federal
constitutional right to due process because the prosecutor made
improper statements during his closing argument. Taylor now
seeks a writ of habeas corpus on the ground that the Supreme
Judicial Court of Massachusetts ("SJC") unreasonably denied this
federal constitutional claim.
As the SJC said, certain remarks by the prosecutor
"should not have been made." Commonwealth v. Taylor, 14 NE.3d
955, 966 (Mass. 2014). Nonetheless, after a careful review of
the record, and applying the standard prescribed by the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
28 U.S.C. § 2254(d), we conclude that the SJC reasonably applied
the clearly established law of the Supreme Court in holding that
the improper statements by the prosecutor did not render the
trial fundamentally unfair. Thus, we affirm the district court's
decision denying the petition for habeas relief.
- 2 - I.
A. Factual Background
In July 2006, Taylor was indicted by a grand jury for
the murder of Dominique Samuels. He was tried in Suffolk County
Superior Court from May 7 through July 3, 2008. We take from
the district court the well-stated summary of the government’s
case:
The Commonwealth presented credible evidence at trial that Taylor had strangled the victim, Dominique Samuels ("Samuels" or "the victim"), and burned her body in a public park days later. Samuels resided in a multi- bedroom apartment with Martin McCray ("McCray"), McCray's brother, McCray's female cousin and a male friend of McCray. Taylor is McCray's cousin . . . .
On the night in question, April 27 into the early hours of April 28, 2006, Taylor and McCray were in McCray's room, drinking alcohol and playing video games. Around 10:00 P.M., McCray left his apartment to spend the night at his girlfriend's home. Taylor remained in McCray's room.
A number of witnesses recalled hearing screaming that night coming from the victim's apartment. The landlord's daughter testified that she heard two men laughing and dragging something after an altercation. McCray's cousin heard what she initially assumed was a sexual encounter but later believed it to be a woman in distress and then a loud boom. Despite those noises, no one residing inside the building notified law enforcement.
The following morning, Taylor went to the apartment of McCray's girlfriend to see McCray. McCray claimed that Taylor
- 3 - confessed to killing Samuels at that time and showed McCray scratches on his hands and neck inflicted by Samuels. During the next few days, McCray and Taylor spoke on the phone several times. McCray alleged that Taylor sought access to a vehicle to dispose of Samuels's body. McCray also claimed that Taylor told him that he intended to burn Samuels's fingertips because his skin was underneath her fingernails. McCray testified that at 5:30 A.M. on Sunday, April 30, 2006, Taylor called him to tell him "it's done." Samuels's body was discovered in Franklin Park 30 minutes later.
A search of McCray's room thereafter revealed two distinct bloodstains: one containing the DNA of the victim and one containing the DNA of Taylor.
Taylor v. Medeiros, 381 F. Supp. 3d 110, 113-114 (D. Mass. 2019).
Taylor's defense was that McCray had actually
committed the murder. His counsel cross-examined McCray at
length about inconsistences in his testimony. When counsel
confronted McCray with the charge that he had murdered Samuels,
McCray appeared distraught, ran from the courtroom, and collapsed
in the bathroom.
The prosecutor gave an approximately sixty-minute
closing argument. In urging the jury to find Taylor guilty, the
prosecutor characterized the defendant's theory of the case as
a "bald-face lie" and told the jurors that if they credited the
theory, "you will have violated the oath that you took as
jurors." He described defense counsel's cross-examination of
McCray as "accusatory, rude, . . . disrespectful, and at times
- 4 - vulgar." In referencing the uncertainty concerning Taylor's
whereabouts when he made certain incriminating phone calls, the
prosecutor commented that only Taylor knew his own location.
Toward the end of his closing argument, the prosecutor discussed
the DNA evidence against Taylor and stated "[i]t doesn't get any
better than that."
Defense counsel objected only to the "jury's oath"
comment. The judge gave an immediate curative instruction,
stating, "The jurors will make their decision, as has been
stated, from the evidence and the evidence only. That's what
controls." During the final jury charge, the judge gave
additional instructions regarding the jury's duty to evaluate
the evidence.
After the jury found Taylor guilty of murder in the
second degree, the judge imposed the mandatory life sentence.
B. Procedural History
Following his conviction, Taylor filed a direct
appeal. He also filed a motion for a new trial, arguing, among
other things, that the prosecutor's closing argument was
improper. The trial judge denied Taylor's motion, and Taylor
appealed. The two appeals were consolidated. The Massachusetts
Appeals Court affirmed the denial of the new trial motion and
the conviction. See Commonwealth v. Taylor, 981 N.E.2d 233
(Mass. App. Ct. 2013) (Table). Taylor appealed to the SJC. On
- 5 - August 29, 2014, the SJC issued an opinion affirming Taylor's
conviction. See Commonwealth v. Taylor, 14 N.E.3d 955 (Mass.
2014).
In his appeal to the SJC, Taylor claimed that he should
receive a new trial because the prosecutor made improper remarks
in his closing argument: specifically, disparaging comments
about defense counsel and the defense's theory of the case, the
remark invoking the jurors' oaths, a statement commenting on
Taylor's failure to testify, and an expression of personal
opinion. The SJC disapproved of two statements: the
characterization of the defense's theory as a "bald-face lie"
and the statement that it would be a violation of the jurors'
oaths if they believed that theory. Id. at 966. The court
reasoned that these statements were improper because the former
implied that defense counsel had fabricated evidence, and the
latter suggested that the jurors were not permitted to take a
different view of the evidence than the one proposed by the
prosecution. Id.
Nonetheless, the SJC concluded that these two
"unfortunate" remarks did not warrant a new trial. Id.
Considering the trial as a whole, the judge's two curative
instructions, and the strength of the evidence the Commonwealth
presented against Taylor, the improper prosecutorial statements
did not justify reversal. Id.
- 6 - In August 2017, appellant filed a habeas petition in
the United States District Court for the District of
Massachusetts. The petition raised two claims: first, that the
prosecutor's improper comments during his closing argument were
so egregious that they deprived Taylor of a fair trial; second,
that he received ineffective assistance of counsel because his
attorney failed to address an allegation that jurors were
sleeping during portions of the trial.1
The district court denied Taylor's petition. The court
agreed with the SJC that the prosecutor had made the two improper
remarks noted above. The court also agreed with the SJC that
these remarks did not warrant a new trial because (1) "a court
should not infer that the jury will draw the most damaging
meaning from an isolated remark after sitting through a lengthy
trial and jury instructions," (2) "much of the objectionable
content was made in response to the opening argument of the
defense," (3) the trial judge gave curative jury instructions,
and (4) "the weight of the evidence against the petitioner was
strong." 381 F. Supp. 3d at 118. The court also rejected
1 A year after the SJC decision, Taylor filed a second motion for a new trial, arguing that his counsel was ineffective because he did not address the fact that jurors were asleep during the trial. His second motion was denied by the Superior Court, and that decision was affirmed by the Appeals Court and the SJC.
- 7 - Taylor’s ineffective assistance of counsel claim regarding the
sleeping jurors. Id. at 117.
The district court issued a certificate of
appealability as to both claims. On appeal, Taylor dropped his
claim regarding the sleeping jurors, and he thus proceeds solely
on his claim that improper statements by the prosecutor denied
him due process in violation of the federal Constitution. The
Commonwealth argues that the SJC reasonably found that the
challenged statements did not warrant habeas relief.
II. A. Habeas Standard of Review
We review de novo a district court's denial of a
petition for a writ of habeas corpus. Linton v. Saba, 812 F.3d
112, 121 (1st Cir. 2016). Under AEDPA, habeas relief may be
granted if a state court's adjudication of a claim on the merits
"resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court." 28 U.S.C. § 2254(d)(1).
Here, the second prong, an unreasonable application of
the law, is at issue. "An unreasonable application occurs when
'the state court identifies the correct governing legal rule[,]
. . . but unreasonably applies it to the facts of the particular
state prisoner's case.'" Bebo v. Medeiros, 906 F.3d 129, 134
(1st Cir. 2018) (quoting White v. Woodall, 572 U.S. 415, 425
- 8 - (2014) (omission in original)). To meet this standard of
unreasonableness, a state court's application of the law "must
be 'objectively unreasonable,' not merely wrong; even 'clear
error' will not suffice." White, 572 U.S. at 419 (quoting Lockyer
v. Andrade, 538 U.S. 63, 75–76 (2003)). The writ can only be
granted "in cases where there is no possibility fairminded
jurists could disagree" that the state court's application of
the law to the facts of the case was unreasonable. Harrington
v. Richter, 562 U.S. 86, 102 (2011).
B. Clearly Established Law Regarding Improper Prosecutorial Statements
The clearly established law of the Supreme Court for
evaluating the import of improper statements by prosecutors and
the fairness of a trial is undisputed: a new trial is warranted
if improper statements "so infected the trial with unfairness as
to make the resulting conviction a denial of due process."
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly
v. DeChristoforo, 416 U.S. 637, 643 (1974)); see, e.g., Dorisca
v. Marchilli, 941 F.3d 12, 23 (1st Cir. 2019) (citing Darden as
the clearly established law for purposes of deciding an AEDPA
petition).
To reasonably apply the Darden standard, a state court
must assess the propriety of each of the allegedly improper
prosecutorial statements. See Darden, 477 U.S. at 180 (listing
- 9 - certain statements the prosecutor made in his closing argument
and declaring that "[t]hese comments undoubtedly were improper"
before beginning the due process analysis). Importantly, a
finding that a statement was improper does not mean that there
was a due process violation warranting a new trial. Darden, 477
U.S. at 181 ("[I]t is not enough that the prosecutors' remarks
were undesirable or even universally condemned." (quoting Darden
v. Wainwright, 699 F.2d 1031, 1036 (11th Cir. 1983)) (internal
quotation marks omitted)). The identification of improper
statements is a necessary prelude to the Darden due process
analysis.
The Supreme Court has emphasized that "the Darden
standard is a very general one, leaving courts 'more leeway
. . . in reaching outcomes in case-by-case determinations.'"
Parker v. Matthews, 567 U.S. 37, 48 (2012) (per curiam) (omission
in original) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). This case-by-case analysis requires courts to consider
improper prosecutorial statements in context. See Darden, 477
U.S. at 179. Among the factors the Court used in Darden to
evaluate the context were the severity of the improper
statements, whether the statements were invited by defense
argument, whether the trial judge issued appropriate curative
instructions, and the weight of the evidence against the
petitioner. See id. at 182.
- 10 - The SJC evaluated Taylor's prosecutorial misconduct
claim under Massachusetts state law, which requires courts to
"assess the prosecutor's remarks 'in light of the entire
argument, as well as in light of the judge's instructions to the
jury and the evidence at trial.'" Taylor, 14 N.E.3d at 965
(quoting Commonwealth v. Burgos, 965 N.E.2d 854, 870 (Mass.
2012)). This approach is consistent with Darden. See, e.g.,
Dagley v. Russo, 540 F. 3d 8, 17 (1st Cir. 2008) ("The SJC's
approach in addressing Dagley's claim [relying on Massachusetts
state law] was similar in substance to the approach taken by the
Supreme Court[.]"). Taylor does not contest the legal rule the
SJC applied to the fundamental fairness question. Rather, he
contests the SJC's application of that rule.
III.
The allegedly improper prosecutorial remarks
challenged by Taylor can be grouped into three categories: (1)
attacks on defense counsel and the defense's theory of the case;
(2) a statement of personal opinion as to the strength of the
evidence; and (3) implicit comments on Taylor's decision not to
testify.
In our assessment of the reasonableness of the SJC's
application of the clearly established law of the Supreme Court
to each statement, we acknowledge that "[t]he line separating
acceptable from improper advocacy is not easily drawn; there is
- 11 - often a gray zone." United States v. Young, 470 U.S. 1, 7 (1985).
But there are nonetheless limits as to what a prosecutor may say
to a jury. We are guided by the Court's oft-quoted admonition
that a prosecutor
may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935).
A. Alleged Attacks on Defense Counsel and the Defense Theory
In discussing the language to which Taylor objects, we
include both the particular phrases he challenges as
improper -- which are underlined -- and any surrounding sentences
we view as necessary for understanding the context of the
allegedly improper remarks.2
1. "Bald-face Lie"
And, finally, in the most provocative claim that was made, and one that was repeated throughout this trial and throughout [defense counsel's] closing argument, is that Martin McCray is the killer. . . . To call that a rumor, to call that speculation, to call that innuendo, is to give that statement too much credit. That is a bald- face lie. There is not a single shred of evidence in this case, not one, that even suggests that Martin McCray killed Dominique
2We similarly provide the surrounding comments for the other two categories of challenged comments.
- 12 - Samuels. . . . And the fact of the matter is that [defense counsel's] entire argument is based on that proposition, a proposition that is simply untrue.
The SJC found the prosecutor's use of the phrase "bald-
face lie" to be "ill-advised." 14 N.E.3d at 966. The district
court similarly noted that this statement was "inappropriate."
381 F. Supp. 3d at 118. The district court correctly determined
that the SJC's decision was a reasonable application of clearly
established federal law, as determined by the Supreme Court. See
Young, 470 U.S. at 9 ("[Counsel] must not be permitted to make
unfounded and inflammatory attacks on the opposing advocate.");
cf., e.g., United States v. Xiong, 262 F.3d 672, 675 (7th Cir.
2001) (noting that accusations that defense counsel is lying may
"direct[] the jury's attention away from the legal issues[,]. .
. induc[e] the jury to give greater weight to the government's
view of the case[,]. . . [or] caus[e] the jury to believe that
the defense's characterization of the evidence should not be
trusted"). Indeed, although the prosecutor certainly may argue
the plausibility of the defendant's theory of the case, the SJC
appropriately observed that "a prosecutor treads on dangerous
ground when he can be seen as accusing defense counsel of
engaging in fabrication." 14 N.E.3d at 366.
- 13 - 2. "You will have violated the oath that you took as jurors"
But the one thing you must do, the one thing that you are required to do is that if you are going to make a determination about the credibility of a witness, you must do so with the evidence. If you decide not to believe Martin McCray, that is your right. But if you don't believe Martin McCray because you think he killed Dominique Samuels, I suggest to you, ladies and gentlemen, you will have violated the oath that you took as jurors . . . to decide this case . . . upon the evidence.3
The SJC found that the prosecutor's comment regarding
the jury's oath was improper because it
could have been misunderstood by the jury to mean that they were not permitted to take a different view of the evidence or credit a theory of Martin's guilt without violating their oaths. Prudence counsels against invocation of the jurors' oath in this fashion.
14 N.E.3d at 966. The district court also characterized the
prosecutor's suggestion that "you will have violated the oath
that you took as jurors" as "inappropriate." 381 F. Supp. 3d at
117.
This reference to the jury's oath was undisputedly
improper under clearly established federal law as determined by
the Supreme Court. In Young, the Court stated that a
3Where the ellipses appear, Taylor's defense counsel was interjecting objections.
- 14 - prosecutor's exhortation to the jury that "I don't think you're
doing your job as jurors [if you acquit,]," 470 U.S. at 5-6, was
a "kind of pressure . . . [that] has no place in the
administration of criminal justice," id. at 18. Similarly, the
Court has acknowledged that a prosecutor is making an
impermissible emotional appeal if she suggests that jurors have
a civic duty to convict. See Viereck v. United States, 318 U.S.
236, 247-48 & n.3 (1943); United States v. Kinsella, 622 F.3d
75, 85 (1st Cir. 2010) (citing Viereck for this proposition).
3. Other Alleged Improper Attacks on the Defense Theory and Defense Counsel
Taylor challenges two additional statements as attacks
on the defense theory: (1) a characterization of the defense's
theory as "fantastic" and "outlandish[,]" and (2) a description
of the defense's theory as a "path of speculation, of cynicism,
and innuendo." Taylor also challenges the description of the
defense counsel's cross-examination of Martin McCray as
"accusatory, rude, and disrespectful, and at times vulgar" as a
personal attack on defense counsel.
The SJC briefly stated in a footnote that these
statements were not improper.4 This was a reasonable application
4 The full footnote, which also addressed other challenges to the prosecutor's comments, see infra, is as follows: "The defendant also objects to what he terms the prosecutor's improper reference to his personal opinion, his comment allegedly regarding the defendant's decision not to take the stand, and
- 15 - of clearly established federal law as determined by the Supreme
Court. See Berger, 295 U.S. at 88 (noting the leeway afforded
prosecutors to vigorously advocate for a conviction). Reflecting
the Court's view of permissible advocacy by government counsel,
our court has acknowledged that prosecutors must be given "some
latitude 'to discuss competing inferences from the evidence on
the record,' and 'to comment on the plausibility of the
defendant's theory.'" United States v. Berroa, 856 F.3d 141,
161 (1st Cir. 2017) (quoting United States v. Glover, 558 F.3d
71, 77–78 (1st Cir. 2009)). The prosecutor's characterizations
of the defense's theory in this case fell within that leeway.
See Glover, 558 F.3d at 78 (noting that the court had previously
found acceptable a prosecutor's statement that the defense's
theory was "absurd").
As for the prosecutor's description of defense
counsel's cross-examination of McCray, the "alternate suspect,"
it included poorly chosen words: "rude," "disrespectful," and
"vulgar." These words were "undignified and ill-chosen for a
professional who is bound by the rules of civility and proper
court decorum." United States v. Davis, 15 F.3d 1393, 1402–03
(7th Cir. 1994). Nonetheless, in the context of Taylor's trial,
his disparagement of defense counsel. As to these statements, we agree with the panel of the Appeals Court that there was no error." Taylor, 14 N.E.3d at 966 n.18.
- 16 - the prosecution faced an unusual circumstance -- the need to
rehabilitate the testimony of a crucial witness who appeared to
have an emotional breakdown during defense counsel's vigorous
cross-examination. Under this circumstance, and consistent with
clearly established Supreme Court law, the SJC reasonably
concluded that the prosecutor's harsh characterization of
defense counsel's cross-examination was not an improper personal
attack on defense counsel.
B. The Prosecutor's Expression of a Personal Opinion
Taylor claims the following statement constituted an
improper expression of the prosecutor's personal opinion:
That bloodstain on the back of the television, an arm's length from the bloodstain on the floor, a bloodstain that belongs to Dominique Samuels. The bloodstain that the defendant tried to clean up. An arm's length away, the defendant's blood and the victim's blood. It doesn't get any better than that.
Without elaboration, the SJC stated that the remark "It doesn't
get any better than that" was not improper. Taylor, 14 N.E.3d
at 966 n.18. This judgment was a reasonable application of
Supreme Court law. The Court forbids expressions of the
prosecutor's personal opinion on "the truth or falsity of any
testimony or evidence or the guilt of the defendant." Young,
470 U.S. at 8 (quoting ABA Standards for Criminal Justice 3-
5.8(b)(2d ed. 1980)). But the SJC could reasonably conclude
- 17 - that this comment was not a personal opinion as to the truth of
the evidence, but rather an observation that a certain type of
evidence is particularly probative of guilt. The SJC's
determination that the statement was not improper was thus a
reasonable application of Supreme Court law. Cf. United States
v. Andreas, 216 F.3d 645, 671-72 (7th Cir. 2000) (concluding the
trial court did not abuse its discretion by finding that the
prosecutor's statement that "you can't get better evidence than
that" was not improper because it was not unreasonable to allow
a prosecutor to comment on the persuasiveness of certain "types
of evidence").
C. Alleged Comments on the Failure to Testify
It is a bedrock principle of constitutional law that
a prosecutor is not permitted to comment on the defendant's
exercise of his Fifth Amendment right to silence. See, e.g.,
Griffin v. California, 380 U.S. 609, 615 (1965). A prosecutor's
statements violate the Fifth Amendment if "the language used was
manifestly intended or was of such a character that the jury
would naturally and necessarily take it to be a comment on the
failure of the accused to testify." United States v. Wilkerson,
411 F.3d 1, 9 (1st Cir. 2005) (quoting United States v. Wihbey,
75 F.3d 761, 769 (1st Cir. 1996)).
In his brief to this court, Taylor argues that two of
the prosecutor's statements improperly commented on his failure
- 18 - to testify. However, as the government argues, one of those
statements was not challenged in the state court proceedings.5
That claim of error is therefore not exhausted, and, accordingly,
we may not consider it. See 28 U.S.C. § 2254(b)-(c).
The other comment is as follows:
[Defense counsel] says I can't tell you that [the cell phone evidence] means he was in Franklin Park. I'm not saying he was in Franklin Park. I have no idea where he was when he made those calls. Nobody does except for the defendant. But the cell phone records prove something: he wasn't in Norwood. He was not in Norwood as [his attorney] claimed he would be.
Part of Taylor's defense was that he was in a different
city (Norwood) at the time the victim's body was burned at
Franklin Park. Thus, the prosecutor was observing that, even
though the evidence was not conclusive as to Taylor's exact
location at the time the victim's body was burned, the records
indicated he was not in Norwood as his attorney claimed.
Again without elaboration, the SJC disposed of this
failure to testify issue in the same brief footnote quoted above,
5 The unchallenged statement was the following: "And not one witness in this case puts the defendant at Martha Laing's house, not one, not any of the witnesses [defense counsel] called. Marie Anderson doesn't say that. Martha Laing doesn't say that. And you know who else doesn't say that? The defendant doesn't say that." Although the district court analyzed this statement on the merits, finding that it did not implicate Taylor's Fifth Amendment rights, it was not properly before the court.
- 19 - finding no impropriety. The district court agreed with this
finding, concluding that the prosecutor's statement is more
naturally understood as a comment on the evidence, rather than
as a comment on Taylor's decision not to testify. As the district
court explained:
When read in the context of the entire statement, the prosecutor was referring to evidence which indicated that Taylor's cell phone was not located where he claimed he was when the victim's body was being disposed of. A prosecutor is entitled to use the evidence to undermine the defense's theory.
381 F. Supp. 3d at 119.
We concur in this assessment of the SJC's finding. A
prosecutor is entitled to comment on the plausibility of the
defense theory if those comments are "aimed at the evidence,
rather than at the defendant." United States v. Akinola, 985
F.2d 1105, 1111-12 (1st Cir. 1993) (finding no error in
prosecutor's statement at closing argument that certain facts
were "unexplained"). The prosecutor's comment was appropriately
targeted at the evidence (and lack thereof), rather than Taylor's
failure to testify. Accordingly, the SJC reasonably applied
clearly established Supreme Court law affording prosecutors
flexibility "to use every legitimate means to bring about a just"
conviction. Berger, 295 U.S. at 88.
- 20 - D. Fundamental Fairness
As we have now explained, the SJC reasonably applied
clearly established federal law as determined by the Supreme
Court in concluding that the prosecutor made two improper
statements: accusing defense counsel of a "bald-face lie" and
stating that the jurors would be violating their oaths if they
believed defense counsel. According to Darden, the effect of
the improper statements on the fundamental fairness of the trial
is to be assessed by examining the statements in context, thereby
considering factors that would minimize their impact, including
the corrective instructions of the judge and the strength of the
evidence against the defendant. See Darden, 477 U.S. at 182;
see also Hardy v. Maloney, 909 F.3d 494, 501 (1st Cir. 2018)
(applying this standard in the context of AEDPA review). Darden
does not require a court to consider any precise combination of
factors in the fundamental fairness analysis. See Parker, 567
U.S. at 48 (referring to "[t]he highly generalized standard for
evaluating claims of improper prosecutorial statements set forth
in Darden").
Here, the SJC focused on curative jury instructions
and the strength of the evidence. Directly following an
objection to the prosecutor's statement regarding the jurors'
oath, the judge told the jury, "The jurors will make their
decision, as has been stated, from the evidence and the evidence
- 21 - only. That's what controls." The closing jury instructions
included the following:
[I]n the context of his argument regarding your evaluation of the credibility of Martin McCray's testimony, [the prosecutor] stated that if you don't believe Martin McCray because you think he killed Dominique Samuels, you will have violated your oaths you took as jurors. I want to be sure that you understand that as [the prosecutor] stated, both before and after the statement I just referred to, your judgment of the credibility of Martin McCray's testimony and all other witness[es] in this case must be based solely upon the evidence presented at trial. I will be defining evidence for you in these instructions. You will have followed your oath as jurors when you have made your credibility determinations based on the evidence, whatever those determinations turn out to be.
[Y]ou and you alone determine what the facts are. In a sense, you are the judges when you do that. You are the sole judges of the facts. It does not matter what I or the attorneys think the facts are; all that matters is what you find facts to be. . . . You alone determine the weight and the effect and the value of the evidence and the credibility, that is, the believability of the witnesses.
The personal belief[s] [of] counsel on any issue in the case or what the evidence is are not evidence.
The SJC found that these instructions "sufficed to 'mitigate any
prejudice in the final argument'" because they appropriately
"direct[ed] the jury to reach their decision based on the
evidence before it." Taylor, 14 N.E.3d at 966. Notably, these
- 22 - jury instructions mirror the instructions that the Supreme Court
found to have a mitigating effect in Darden. 477 U.S. at 182
(listing the trial court's instructions to the jurors "that their
decision was to be made on the basis of the evidence alone, and
that the arguments of counsel were not evidence" as a reason why
the trial was not fundamentally unfair).
The SJC also considered the strength of the evidence
as part of its determination of whether the improper statements
rendered Taylor's trial fundamentally unfair. The court stated:
[T]hroughout this nearly eight-week trial, the Commonwealth presented a substantial case against the defendant, including forensic evidence corroborating his presence at the site of the victim's death and testimony that he had confessed to strangling the victim.
Taylor, 14 N.E.3d at 966. This consideration of the strength of
the evidence is consistent with the Darden court's assessment
that "the 'overwhelming eyewitness and circumstantial evidence
to support a finding of guilt on all charges,' reduced the
likelihood that the jury's decision was influenced by argument."
Darden, 477 U.S. at 182 (citation omitted) (quoting Darden v.
State, 329 So. 2d 287, 291 (Fla. 1976)).
In its dispositive statement on fundamental fairness,
the SJC concluded: "In light of the Commonwealth's strong case
and the judge's curative instructions, the prosecutor's
'fleeting' comments cannot reasonably be thought to have affected
- 23 - the jury's careful deliberations." Taylor, 14 N.E.3d at 966.
This conclusion that the "bald-face lie" and "oath as jurors"
statements did not render the appellant's trial fundamentally
unfair, and hence violative of due process, was a reasonable
application of clearly established federal law as determined by
the Supreme Court. See Darden, 477 U.S. at 181-83. Thus, we
affirm the district court's denial of Taylor's petition for a
writ of habeas corpus.
So ordered.
- 24 -