United States Court of Appeals For the First Circuit ____________________ No. 00-2504

THEODORE TRIGONES,

Petitioner, Appellant, v. LYNN BISSONNETTE, SUPERINTENDENT, NORTH CENTRAL CORRECTIONAL INSTITUTION, Respondent, Appellee.

____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Joseph L. Tauro, U.S. District Judge] ____________________ Before Lynch, Circuit Judge, Bownes and Magill,* Senior Circuit Judges.

____________________

Judith Farris Bowman for appellant. William J. Meade, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief for appellee. ____________________

July 10, 2002 ____________________

* Of the United States Court of Appeals for the Eighth Circuit, sitting by designation. LYNCH, Circuit Judge. This is a habeas corpus case

involving a state prisoner and raising Confrontation Clause

questions. The district court denied habeas relief; we find the

question closer, but affirm the denial of relief because the state

court decision affirming petitioner's murder conviction cannot be

said to be an unreasonable application of clearly established

federal law, as determined by the Supreme Court.

I.

On July 1, 1983, a thirteen-year-old babysitter, Erica

Forestiere, was stabbed to death between 12:30 a.m. and 2:30 a.m. while her two young charges slept upstairs. In 1984, a state court jury convicted Theodore J. Trigones of the crime, finding him guilty of first degree murder. He was sentenced to life

imprisonment without parole. Trigones's defense at trial was that the father of the children, Leo Trzcinski Jr., intending to kill his estranged wife,

had mistakenly killed Forestiere, the babysitter. Trigones testified that, on the night of the murder, he went to the Trzcinski residence, where he encountered Trzcinski sitting near the already dead babysitter.

Later that night, Trigones spoke with his stepfather,

Roland Weed. At a pretrial hearing on Trigones's motion to

suppress, Weed testified that Trigones, in the early morning hours

following the murder, had said "I've done something terrible" or "I

did something terrible." At that same hearing, Weed also testified

that he understood Trigones to say "I killed someone," and that

-2- Trigones said something like "[t]here's a lot of hate in me" and

"if it wasn't her it would have been somebody else."

The only purpose of this pretrial hearing was to determine whether Trigones's statements to Weed were voluntary and

products of a rational intellect, given Trigones's contemporaneous

drug and alcohol ingestion.1 The trial court found the statements voluntary and admissible.

Trigones was denied the opportunity to confront Weed at

trial. An edited version of the transcript of Weed's suppression

hearing testimony was read to the jury, over Trigones's objection,

when Weed exercised his Fifth Amendment rights by refusing to

testify at trial. Trigones sought interlocutory relief on the

question of the admissibility of the Weed testimony and lost. At trial, Trigones testified and pointed the finger at

Trzcinski. Trigones also attempted to counter Weed's statement.

He testified that what he had said to Weed was not that he, Trigones, had killed someone, but that it was Trzcinski who had

killed someone, although, in the conversation with Weed, Trigones

did not name Trzcinski as the killer. Trigones testified that he

had told Weed that there is a lot of hate in him, meaning

1 Although the federal constitutional prohibition against coerced statements does not cover private citizens' conduct, Colorado v. Connelly,

(1986), "[u]nder Massachusetts law, statements extracted by private citizens, even absent governmental involvement, are subject to suppression under the involuntariness standard," P.J. Liacos et al., Handbook of Massachusetts Evidence § 9.3, at 591 (7th ed. 1999) (citing Commonwealth v. Mahnke,

,

(1975)). We understand Trigones's suppression hearing argument to have focused more on whether his inculpatory statements were products of a rational intellect.

-3- Trzcinski, and that, if it wasn't her (the babysitter), he, again

meaning Trzcinski, would have killed someone else. Trzcinski also

testified and provided a version of the facts which, if credited, exculpated him. The jury had the opportunity to hear from both

Trigones and Trzcinski and to evaluate which witness to believe and

who was the killer. Weed's testimony, read into evidence at trial, was an

important element of the Commonwealth's case. Trigones's alleged

confession, as recounted by Weed, was a significant part of the

evidence tending to show that Trigones, rather than Trzcinski,

committed the murder. Indeed, as the federal district court that

heard this habeas petition noted, "Weed's testimony recounting

[Trigones's] alleged confession was likely some of the most damning evidence." Trigones v. Hall,

(D. Mass.

2000). The differences between Trigones's version of his statement

to Weed and Weed's version of Trigones's statement make all the difference, according to Trigones, because Trigones's version is an

admission only to being an accessory after the fact, whereas Weed's version is an admission that Trigones committed the murder himself.

The jury convicted Trigones, and the Supreme Judicial

Court of Massachusetts ("SJC") affirmed the jury's verdict on

appeal, Commonwealth v. Trigones,

,

(1986). The SJC rejected Trigones's argument that, under the

Confrontation Clause, the court should not have admitted Weed's

statement. Id. at 1150. It concluded that, under Ohio v. Roberts,

(1980), the testimony was admissible because Weed was

-4- unavailable2 to testify at trial and his suppression hearing

testimony bore adequate indicia of reliability. Trigones,

. In 1991 Trigones filed a new trial motion based on

ineffective assistance of counsel. The trial court initially

denied the motion without a hearing. A single justice of the SJC then denied Trigones's motion for leave to appeal the denial, but

remanded to the trial court for an evidentiary hearing because the

justice could not make the requisite ineffective assistance of

counsel determination on the record as it existed at the time. The

trial court held an evidentiary hearing at which Trigones's trial

counsel testified. After this hearing, the trial court again

denied the motion and a single justice of the SJC then denied Trigones's motion for leave to appeal. Trigones next filed an

unsuccessful action in the SJC for a declaration that it was

unconstitutional to deny him the right to appeal from the denial of the new trial motion. Trigones v. Attorney Gen.,

,

(1995).

In 1997, some thirteen years after his conviction,

Trigones sought federal habeas corpus relief. He argues that the

admission into evidence of the transcript of Weed's testimony

denied him his rights under the Confrontation Clause of the Sixth

Amendment to cross-examine Weed at trial. The district court

2 The parties do not dispute Weed's status as an unavailable declarant; Weed successfully asserted, on Fifth Amendment grounds, that he could not be compelled to testify, Commonwealth v. Weed,

,

(1984).

-5- denied the writ, holding 1) that it was bound by what it considered

the SJC's not-clearly-erroneous factual conclusion that Trigones

abandoned his bias line of questioning at the suppression hearing and 2) that Trigones had failed to raise before the state courts

his argument that his counsel had lacked a similar motive to cross-

examine at the suppression hearing. Trigones,

.

Although Trigones's argument is far from frivolous, we

affirm the district court's denial. In light of the particular

circumstances of this case, we cannot say that the SJC's conclusion

was unreasonable.

II.

Trigones makes a two-part argument3: (1) that admission at trial of the Weed transcript violated his Sixth Amendment right

to confront Weed; and (2) that the SJC's decision that there was no Sixth Amendment violation was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States."

(d)(1) (2000). There is no credible argument that this case fits within

the "contrary to" framework of analysis. See Williams v. Taylor,

(2000); Hurtado v. Tucker,

(1st

3 Trigones requested an expanded certificate of appealability to permit him to pursue claims of ineffective assistance of counsel and claims that the state procedures for post-conviction petitions violate due process and equal protection. This court denied the request.

-6- Cir.), cert. denied,

(2001). This is simply because

Trigones has not shown that the SJC's decision "arrives at a

conclusion opposite to that reached by [the Supreme] Court on a question of law." Williams,

; see also Bell v.

Cone,

(2002). Nor has he shown that the SJC

"confront[ed] facts that are materially indistinguishable from a relevant Supreme Court precedent and arrive[d] at a[n opposite]

result." Williams,

; see also Bell,

. Because the SJC adjudicated the constitutional claim on its

merits, we apply the deferential, statutory "unreasonable

application" test,

(d)(1),4 and do not review the

SJC's constitutional conclusion de novo. Cf. Fortini v. Murphy,

(1st Cir. 2001) (stating that "we can hardly defer to the state court on an issue that the state court did not

address"), cert. denied,

(2002). Even an incorrect

state court decision is not necessarily an "unreasonable" one for habeas purposes. Williams,

(stating that "an

unreasonable application of federal law is different from an

incorrect application of federal law"); see also Bell,

.

4 Though the Commonwealth attempts to characterize portions of the SJC's determination as determinations of fact entitled to a presumption of correctness rebuttable only by clear and convincing evidence, § 2254(d)(2)'s heightened standard "applies only to determinations of 'basic, primary, or historical facts.'" Ouber v. Guarino, No. 01-2390,

(1st Cir. June 17, 2002) (quoting Sanna v. DiPaolo,

(1st Cir. 2001)). "Inferences, characterizations of the facts, and mixed fact/law conclusions are more appropriately analyzed under" § 2254(d)(1). Id.

-7- The "unreasonable application" issue is measured against

the Sixth Amendment's requirements for the admission of prior

preliminary judicial hearing testimony of a witness who is unavailable at trial. The Sixth Amendment's Confrontation Clause

states that "[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. It applies to the states through the

Fourteenth Amendment's Due Process Clause. Pointer v. Texas,

(1965).

The Confrontation Clause does not prohibit the admission

of all hearsay evidence. Idaho v. Wright,

(1990); Mattox v. United States,

(1895). Although "a

literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is

unavailable, [the Supreme] Court has rejected that view as

'unintended and too extreme.'" Bourjaily v. United States,

(1987) (quoting Roberts,

). "[T]here

has traditionally been an exception to the confrontation

requirement where a witness is unavailable and has given testimony

at previous judicial proceedings against the same defendant which

was subject to cross-examination by that defendant." Barber v.

Page,

(1968). That is because "the right of

cross-examination initially afforded provides substantial

-8- compliance with the purposes behind the confrontation requirement."

Id.5

Where hearsay evidence is offered, and that evidence consists of testimony by an unavailable declarant, the

Confrontation Clause requires that the proponent (here the

Commonwealth) show that the transcribed testimony from the preliminary judicial hearing bears adequate "indicia of

reliability," sufficient to offset the lack of cross-examination.

Roberts,

-66 (quoting Dutton v. Evans,

(1970) (plurality)); see also Wright,

(applying the Roberts framework); 2 McCormick on Evidence § 252, at

123-24 (J.W. Strong ed., 5th ed. 1999) (outlining the Confrontation

Clause's standard for admission of prior testimony). Adequate indicia are shown if the proffered testimony "falls within a firmly

rooted . . . exception" to the hearsay prohibition or if the

proponent of the evidence makes a showing of "particularized

5 The issue of use of prior hearing testimony at trial of a newly unavailable witness is not one-sided. In the reported caselaw under Fed. R. Evid. 804(b)(1), it is frequently the prosecution which objects to the use of the testimony on the basis that it lacked an opportunity or similar motive to cross-examine. E.g., United States v. Bartelho,

(1st Cir. 1997) (holding suppression hearing statements inadmissible where government's motive to cross-examine on the issue of voluntariness, at a suppression hearing in a case against the declarant, differed from the government's motive at a different trial, at which the declarant's testimony inculpated the defendant); United States v. Omar,

(1st Cir. 1997) (excluding from trial prior grand jury testimony of witness who died in the interim, where government lacked similar motive to cross-examine); United States v. Wingate,

(2d Cir. 1975) (affirming the exclusion of evidence given at a suppression hearing on voluntariness by a witness unavailable at trial, because of difference in government's motive to cross-examine).

-9- guarantees of trustworthiness." Roberts,

. If the

testimony is within a firmly rooted hearsay exception, then it has

adequate indicia of reliability, without more. White v. Illinois,

, 355 n.8 (1992); Roberts,

.

The federal and state hearsay rules, although they do not

control the constitutional inquiry, are instructive because they outline the contours of the firmly rooted hearsay exception at

issue in this case. We have previously concluded that Fed. R.

Evid. 804(b)(1) codifies a firmly rooted exception to the hearsay

prohibition, and so evidence admissible under Rule 804(b)(1) is,

"by definition, not vulnerable to a challenge based upon the

Confrontation Clause." United States v. McKeeve,

(1st Cir. 1997). The Federal Rules provide that former testimony is not

excluded by the hearsay prohibition if the declarant is unavailable

as a witness and "the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the

testimony." Fed. R. Evid. 804(b)(1); see generally 2 McCormick on

Evidence, supra, § 304, at 296-97 (stating that "the issues in the

first proceeding, and hence the purpose for which the testimony was

offered, must have been such as to produce an adequate motive for

testing on cross-examination the credibility of the testimony").

The Massachusetts rule is similar. See Commonwealth v. Meech,

,

, 1177-78 (1980); Trigones,

; P.J. Liacos et al., Handbook of Massachusetts Evidence §

8.7.1, at 489 (7th ed. 1999) (stating that "[p]rior testimony . . .

-10- is admissible if it was given under oath in a proceeding where the

issues were substantially the same as in the current proceeding and

the party against whom it is offered had an opportunity and a

similar motive to cross-examine the witness").

Even if the motives to develop the testimony are

dissimilar, that does not end the Confrontation Clause inquiry.

Although a showing of sufficiently dissimilar motives removes the

testimony from the "firmly rooted . . . exception" analysis by

placing the testimony outside of Rule 804(b)(1) or any other firmly

rooted hearsay exception, the testimony may still be analyzed for "particularized guarantees of trustworthiness" and, if such

guarantees are found, admitted into evidence. Roberts,

; see also Lee v. Illinois,

(1986) (stating

that hearsay evidence that does not fall within a firmly rooted

exception may nonetheless be admitted without violating the Confrontation Clause upon a showing that it has particularized guarantees of trustworthiness). If the testimony is not within a

firmly rooted exception, then the proponent must show particularized guarantees of trustworthiness rendering the contested hearsay statement at least as reliable as a statement

admissible under a firmly rooted exception. Wright,

(citing Roberts,

).6

6 A failure to meet Rule 804(b)(1)'s requirements does not necessarily imply a failure to meet the Confrontation Clause's requirements. California v. Green,

(1970) (stating that "merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied").

-11- The SJC correctly articulated the federal constitutional

standards; the only issue, then, on federal habeas review is

whether the SJC unreasonably applied those standards.

III.

Trigones, in his habeas appeal, argues that the admission

of the Weed transcript violated his Sixth Amendment rights because

he was unable to cross-examine Weed on two issues: (1) pro-

Commonwealth bias and (2) Weed's ability to recollect accurately

the statements Weed recounted. We address bias below, and find

that Trigones has failed to exhaust his argument pertaining to Weed's ability to recollect (except to the extent that he is

alleging an inaccuracy in Weed's recollection due to bias, as distinguished from inaccuracies resulting from other imperfections in Weed's ability to have perceived and recalled Trigones's

statement, such as lack of memory or inability to hear the statements at the time they were allegedly made). The SJC concluded that Trigones's "sole argument" was that "Weed's

testimony lacked reliability because he was not fully cross- examined on the possibility that he may have lied in order to protect his wife and himself from prosecution as accessories to the

crime." Trigones,

. After closely examining Trigones's arguments presented to the SJC, we agree that Trigones did not make his "inability to recollect" argument before the SJC

-12- and hence, for reasons of lack of exhaustion, he may not raise it

now. Scarpa v. Dubois,

(1st Cir. 1994).7

Trigones argued before the SJC that the admission of the Weed transcript violated his Sixth Amendment rights because he was

unable to cross-examine Weed on the bias issue. He claimed that

his suppression motion sought to exclude Weed's testimony -- recounting Trigones's statements after the murder -- because Weed's

testimony also showed that Trigones was intoxicated on drugs and

alcohol and could not have made a voluntary statement. Bias,

Trigones argued to the SJC, was not an issue at the suppression

hearing, but would have been an issue at trial if Weed had

7 We note there was already substantial evidence in the suppression hearing record, from Weed himself, that although he testified as reliably as he could, his memory of that evening was imperfect. For example, with respect to events earlier that evening, Weed admitted that his memory was weak: "I don't remember, it's been too long," he said in response to one question; "I don't remember" or "I really don't remember," he replied to about ten other questions. He also said he was "not really sure" about another statement he attributed to Trigones, and he had to guess at some distances. Even with respect to the incriminatory statements, Weed offered two versions and then said he could not recall specifics of other statements because he was in shock and that he "was somewhere else at the time." He recalled that he was "very angry" and "very emotional" during that conversation. All of these statements were ample support for Trigones to argue his point to the jury, that a tired and upset Weed had misperceived what Trigones said to him. The point to be made -- that Weed's memory was faulty -- could be argued to the jury from the basic facts. Indeed, in his closing argument, Trigones argued that the small difference between his own version of his statement on the night of the murder and Weed's version of that statement, as recorded at the suppression hearing, could be explained by the process of Weed's listening to, interpretation of, and "regurgitation" of Trigones's words. We do not decide that, had Trigones properly presented his argument, all of this would have justified the state court rejecting his claim. Rather, we present these facts from the record as context to show that the exhaustion requirement has not worked a substantial injustice.

-13- testified. The asserted bias was in favor of the Commonwealth, and

brought about by the interests of Weed and his wife in avoiding

being charged "as accessories after the fact to murder." Trigones,

.

The SJC addressed three issues: (1) "the extent of the

asserted restriction of cross-examination," (2) the "Sixth Amendment principles governing the admission of Weed's recorded

testimony," and (3) "whether . . . the constitutional standard was

satisfied."

It concluded there was no constitutional

violation, id. at 1150, finding that Trigones had an opportunity to

cross-examine Weed on bias, although, "[p]erhaps for tactical

reasons, defense counsel . . . acquiesced in the judge's suggestion

of irrelevance and abandoned that line of questioning," id. at 1149. The SJC noted that there had been some limited examination

on bias at the suppression hearing. Id. at 1148-49. As to motive,

the SJC concluded that Trigones "should have had the same motive to cross-examine Weed at the pretrial hearing on the relevant issue of

bias . . . as he would have had if Weed had testified in person at trial." Id. at 1150.

These conclusions, if correct (or, for habeas purposes,

at least reasonable), were sufficient under clearly established

Supreme Court law for the SJC to reject Trigones's Confrontation

Clause argument. The SJC, however, proceeded to address whether

Weed's testimony should nonetheless be excluded because Trigones

did not adequately pursue his opportunity to cross-examine Weed on

bias, and concluded that cross-examination on this point would not

-14- have made a difference. Id. We hold that the SJC's conclusions on

opportunity and similar motive were not unreasonable and therefore

conclude that Weed's testimony fell within a firmly rooted hearsay exception. Because it would not have been unreasonable for the SJC

to stop the analysis there, given that the Supreme Court has not

resolved whether an unexercised opportunity is sufficient to satisfy the Confrontation Clause's requirements, Roberts,

, we conclude without the need to address the SJC's

holding that cross-examination on bias at trial would not have made

a difference.

A. Opportunity to Cross-Examine Weed on Bias

The question whether Trigones had an opportunity to

pursue his bias line of questioning at the suppression hearing is a very close one. Even if, faced with the issue on direct appeal,

we would have resolved the issue differently, we cannot say that

the SJC's conclusion as to opportunity was unreasonable. The question whether Trigones's counsel, regardless of

his motive, had a sufficient opportunity to cross-examine Weed at

the suppression hearing turns on one's interpretation of the

following exchange, which occurred at the suppression hearing,

between counsel (Mr. Delinsky) and Weed, immediately followed by an

exchange between counsel and the trial judge:

Q: Were you told at that time that Mrs. Weed could not be prosecuted . . . for helping somebody after a crime was committed because she was a blood relative and a mother? Were you told that by the Police?

A: No, I wasn't.

-15- Q: Were you told that by the District Attorney?

THE COURT: Now wait, Mr. Delinsky, please. Let's assume that all of this happened that you're asking him. What relevance does it have to this hearing?

DELINSKY: I'll go on. Q: Now, --

THE COURT: No, I mean tell me. What relevance does it have? The only thing that I've got to decide in this is was his statement that of a rational intellect and I'm going to let the jury listen.

DELINSKY: I agree.

THE COURT: And what he told his wife and what his wife did or what he did has got absolutely nothing to do with this hearing. Now when we get in front of the jury as to what caused him to make this statement, that's a different story. I'm not going to stop you there.

DELINSKY: Okay, thank you. One view of this colloquy, not unreasonable, is that

counsel had an opportunity to engage in the bias line of

questioning, but chose not to pursue it. When the trial judge

first asked counsel "[w]hat relevance does [this line of questioning] have to this hearing?" counsel's only response was

"I'll go on," apparently meaning that he would proceed to a

different topic. The judge, refusing to permit counsel to abandon

his line of questioning so easily, asked counsel a second time,

"[w]hat relevance does [this line of questioning] have?" The judge

explained his own reason for thinking that the bias-related

question was not relevant, stating "[t]he only thing that I've got

to decide in this is was his statement that of a rational

-16- intellect." At this point, counsel did not rebut the judge's

suggestion of lack of relevance, but instead stated "I agree."

As the SJC concluded, Trigones,

, Weed's purported pro-Commonwealth bias was of course relevant at

the suppression hearing, even though the suppression hearing was

limited to the rational intellect question. Pro-Commonwealth bias would tend to diminish the credibility of any of Weed's statements

favoring the Commonwealth, and to enhance the force of any of

Weed's statements favoring Trigones. Upon prompting by the trial

judge to describe the relevance of the bias line of questioning to

the suppression hearing, counsel could have pointed this out.

Instead, counsel acquiesced.

We might have decided the opportunity issue differently were it raised on direct appeal, given that counsel might plausibly

be understood to have acquiesced not in the face of an invitation

to explain the relevance of his inquiry, but rather in light of the trial judge's final conclusion that the line of questioning was not

relevant. This alternative characterization of the colloquy is

strengthened by the trial judge's reassuring statement to counsel

that "when we get in front of the jury as to what caused him to

make this statement, that's a different story. I'm not going to

stop you there."

But the SJC's conclusion that defense counsel, perhaps

for tactical reasons, acquiesced and abandoned the bias line of

questioning despite the trial judge's invitation to explain its

relevance is not "unreasonable" as that term has been interpreted

-17- under § 2254. Similarly, the conclusion that an opportunity,

though hardly used, is sufficient to qualify as an "opportunity" to

cross-examine for purposes of the Confrontation Clause is not unreasonable. See Roberts,

, 73 n.12;

Siegfriedt v. Fair,

(1st Cir. 1992) (citing

Delaware v. Fensterer,

(1985) (per curiam), and Roberts,

n.12); Fed. R. Evid. 804 advisory

committee's note (stating "no unfairness is apparent in requiring

[a party] to accept his own prior . . . decision not to cross-

examine").

B. Similarity of Motive to Cross-Examine Weed on Bias

In this case, the similarity of motive question is a

complicated one. Our analysis differs substantially from the SJC's, but we again conclude that the SJC's position was not

unreasonable.8

8 The Commonwealth defends the SJC's "similarity of motive" conclusion as being a factual finding to which we must give deference. See

(d)(2). It may be that a court's determination as to similarity of motive is treated as a factual determination. See United States v. Salerno,

(1992) (Blackmun, J., concurring) (stating that Rule 804(b)(1)'s "similar-motive inquiry . . . is inherently a factual inquiry"); Battle v. Mem'l Hosp. at Gulfport,

(5th Cir. 2000) (same in a civil case). If so, it is a factual determination made after comparing the "similarity of the underlying issues" and the context of the prior questioning. Salerno,

. We reiterate, however, that "[i]nferences, characterizations of the facts, and mixed fact/law conclusions are more appropriately analyzed under" § 2254(d)(1). Ouber,

. We need not determine, on these facts, whether the SJC's similarity of motive conclusion was one of law or one of fact because, either way, it was not unreasonable.

-18- At first cut, there appears to be a substantial argument

that Trigones's motive to cross-examine Weed on bias at the

suppression hearing was significantly different from the motive he would have had at trial. Weed's suppression hearing testimony that

Trigones was incoherent and irrational tended to favor Trigones,

who was then trying to prove that his confession was not the product of a rational intellect and, for that reason, should be

suppressed. At the suppression hearing, the truth of Weed's

rendition of Trigones's statement was not at issue. The only issue

was whether Trigones's alcohol and drug intoxication rendered

whatever statements he made involuntary. The limited scope of the

suppression hearing is evident from the text of Trigones's original

motion to suppress, the trial judge's statements at the suppression hearing, and the trial judge's ruling on the motion to suppress,

all of which were limited to the issue of voluntariness.

At trial, in contrast, the truth of Weed's testimony about the content of the inculpatory statements was certainly at

issue and, when credited, that testimony hurt Trigones. It formed

an important part of the evidence tending to implicate Trigones,

rather than Trzcinski, in the murder. At trial, one could argue

that Trigones had an incentive to attack Weed's credibility and

thereby undermine his harmful testimony, whereas at the suppression

hearing Trigones had an incentive to defend Weed's credibility and

thereby bolster his helpful testimony. Such differences can make

for dissimilar motives. Cf. United States v. Bartelho,

(1st Cir. 1997) (concluding that similar motive to cross-

-19- examine did not exist when, "[a]lthough [the witness's] credibility

was generally at issue in each proceeding, . . . the more

particular points [counsel] sought to make were quite different"). But the SJC's contrary position, that Trigones "should

have had the same motive to cross-examine Weed at the pretrial

hearing on the relevant issue of bias in favor of the Commonwealth as he would have had if Weed had testified in person at trial,"

Trigones,

, is not unreasonable. At both the

suppression hearing and at trial Trigones had an incentive to paint

Weed as biased in favor of the Commonwealth. Such a

characterization would tend to diminish the credibility of any of

Weed's statements favoring the Commonwealth. It would also tend to

enhance the force of any of Weed's statements favoring Trigones because any such statements, made despite pressure to testify

unfavorably to Trigones, could be characterized as all the more

believable in light of Weed's incentive to testify contrary to Trigones's interests. At the suppression hearing, showing Weed's

pro-Commonwealth bias could only have helped Trigones, by showing

that Weed was willing to describe Trigones as unable to make

rational statements -- testimony helping Trigones -- despite his

incentive to provide testimony favoring the Commonwealth, and

perhaps by casting doubt on whether Trigones even made the exact

statements that Weed recounted.

For these reasons, it is not unreasonable to conclude

that Trigones had a motive at the suppression hearing to cross-

examine Weed on the issue of pro-Commonwealth bias similar to the

-20- motive he would have had at trial. True, the stakes at trial would

have been higher, but the stakes are almost always higher then (or

at least different), and it is clear that in many cases the motive at a preliminary hearing is sufficiently similar to the motive at

trial to bring the evidence within the Confrontation Clause's

requirements, e.g., Roberts,

; California v.

Green,

(1970). See generally 5 Weinstein's

Federal Evidence § 804.04[5] (J.M. McLaughlin ed., 2d ed. 2002)

(stating that "similar motive does not mean identical motive"). In

addition, the stakes were also high at the suppression hearing,

where, if Trigones had successfully asserted his involuntariness

argument, the inculpatory statements could have been kept out

altogether. Trigones could only have been helped by showing Weed's bias against him.

The more simplistic characterization -- that Trigones had

a motive to paint Weed as truthful at the suppression hearing, but as a liar at trial -- is not necessarily the best characterization

because it fails adequately to account for the nuances of

Trigones's bias argument. Trigones's argument was never that Weed

was a liar. Rather, his argument was that the import of Weed's

testimony turned on the small details, those small details were

matters of recollection, and Weed's recollection could easily have

been tilted against him as a result of Weed's desire to please the

Commonwealth and thereby avoid prosecution of himself or his wife

as an accessory after the fact to murder. Trigones had a motive to

cross-examine Weed on this subtle pro-Commonwealth bias at the

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examine on this point at trial. It was not unreasonable to

conclude that he had a motive to cross-examine on this subject matter at the suppression hearing similar to the motive he would

have had at trial.

In light of this conclusion, we hold that the SJC reasonably concluded that Weed's testimony was admissible under the

firmly rooted exception to the hearsay rule for prior recorded

testimony. This finding alone suffices to reject Trigones's

Confrontation Clause challenge and we need not address the SJC's

resolution of whether Trigones's pursuit of the bias point would

have made a difference.

IV.

The Supreme Court's Confrontation Clause cases have

sought to accommodate competing interests. Those interests include both allowing the prosecution to present material, reliable evidence and preserving the accuracy of the judicial process

through the defendant's exercise of his rights to confront and cross-examine adverse witnesses. The SJC's conclusion that there was no Confrontation Clause violation is within the range of

reasonable judgments which may be reached. The state court decision is not an unreasonable application of clearly established federal law, as determined by the Supreme Court.

We affirm the district court order denying the writ of

habeas corpus.

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