United States Court of Appeals For the First Circuit

No. 22-1846

MICHEL ST. JEAN,

Petitioner, Appellant,

v.

RAYMOND MARCHILLI, Superintendent,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Kayatta, Circuit Judges.

Rosemary Curran Scapicchio, with whom Law Office of Rosemary C. Scapicchio was on brief, for appellant. Nicole Nixon, Assistant Attorney General, with whom Andrea Joy Campbell, Attorney General of Massachusetts, was on brief, for appellee.

September 23, 2024 SELYA, Circuit Judge. In this appeal, petitioner-

appellant Michel St. Jean, a state prisoner, challenges the

dismissal of his federal habeas petition, which asserted

violations of his constitutional rights under the Fifth, Sixth,

and Fourteenth Amendments. After careful consideration, we affirm

the denial of habeas relief.

I

We briefly rehearse the relevant facts and travel of the

case. "Because this appeal involves a challenge to evidentiary

sufficiency, we rehearse the facts in the light most compatible

with the jury's verdict, consistent with record support." Leftwich

v. Maloney,

(1st Cir. 2008). In conducting this

analysis, we are aware of the fact that — on habeas review — "a

determination of a factual issue made by a State court" is

"presumed to be correct."

(e)(1). This

presumption extends to factual findings made by state appellate

courts in the course of direct review. See Teti v. Bender,

(1st Cir. 2007). In turn, we draw upon the facts

recited by the Massachusetts Supreme Judicial Court (SJC),

supplemented by other facts in the record consistent with that

recitation. See Companonio v. O'Brien,

(1st

Cir. 2012).

The saga begins on September 1, 2010. On that afternoon,

the petitioner, Alexander Gallett, and Gallett's girlfriend,

- 2 - Yamiley Mathurin, were at Aline Valery's house in Hyde Park,

Boston. Before leaving her residence, Valery overheard the three

hatching a plan to rob someone. That evening, around 8 P.M., the

trio boarded a bus to a vacant house in the neighborhood. At

approximately 11 P.M., Mathurin asked Marie Tunis — who lived next

to the vacant houses — for permission to use her telephone. Once

leave was granted, Mathurin proceeded to call a pizzeria and order

pizzas, chicken wings, and soda. She requested that the food be

delivered to the back door of the address of the vacant house and

provided the petitioner's cell phone number as the call-back

number. She also asked if the delivery driver would have change

for a one-hundred or fifty-dollar bill.

At 11:30 P.M., Gallett borrowed a passerby's cell phone

and called the same pizzeria. The passerby testified at trial

that Gallett made the call while in front of the vacant house.

Richel Nova (the victim) arrived shortly thereafter with

the delivery. Mathurin escorted him up the rear staircase of the

vacant house. Five minutes later, the petitioner, Gallett, and

Mathurin — who was holding a pizza box — left the house and got

into the victim's vehicle. The petitioner proceeded to drive the

vehicle away.

After witnessing the three drive away, Michael Tunis,

along with his brother and friend, entered the vacant house. Tunis

found blood and chicken wings on the floor near the entryway. In

- 3 - a room off the kitchen, Tunis discovered the victim lying on his

back unresponsive and with visible puncture wounds. Tunis

proceeded to call the police, who arrived at the vacant house

around 12 A.M. They found the victim's body on the floor with his

pant pockets pulled inside out. They also found a pizza warmer

bag, a bloody chicken wings box, a knife handle, a bloody and

slightly bent knife blade, and blood on the door frame leading

into the kitchen.

Meanwhile, the petitioner, Gallett, and Mathurin drove

the victim's vehicle to the rear of a church parking lot — where

it was later found. The pizzeria sign that had previously been

atop the vehicle was found discarded behind the church. A white

pizza box with a label listing the vacant house as the delivery

address and the petitioner's cell phone number as the call-back

number was recovered either near or inside the vehicle. Empty

bleach and rubbing alcohol bottles were also found in proximity to

or inside the vehicle.

Having abandoned the victim's vehicle, the three

returned to Valery's house. They smelled of bleach and appeared

anxious. Gallett had blood on his shirt and on the bottom of his

shoes, while the petitioner had a cut on his right hand and was

using a bandana to try and stop the bleeding.

Within two days, the police arrested the petitioner,

Gallett, and Mathurin. All of them were later indicted for first-

- 4 - degree murder, armed robbery, and breaking and entering in the

nighttime with intent to commit a felony. Mathurin pleaded guilty.

The petitioner and Gallett proceeded to trial before a jury. At

the trial, redacted inculpatory statements from both the

petitioner and Gallett were introduced into evidence as audio-

video recordings. An abundance of forensic evidence that

implicated the two defendants was also introduced, including

fingerprints and deoxyribonucleic acid (DNA) found at the vacant

house, in the victim's car, on the victim, on the pizza box, on

the defendants' clothing, and on money that Mathurin gave to police

following her arrest. Throughout, the petitioner argued that,

although he admittedly broke into and entered the vacant house, he

neither participated in the victim's murder or robbery nor did he

share the intent to commit the crimes.

On September 23, 2014, a state-court jury returned a

general verdict finding the petitioner and Gallett guilty of first-

degree murder under the theories of felony-murder and extreme

atrocity and cruelty, armed robbery, and breaking and entering

with intent to commit a felony. The petitioner was sentenced to

life in prison without parole for first-degree murder, a concurrent

five-to-seven-year sentence for armed robbery, and a concurrent

one-to-three-year sentence for breaking and entering with intent

to commit a felony.

- 5 - On direct review, the SJC affirmed. See Commonwealth v.

Gallett,

(Mass. 2019). In its opinion, the SJC

rejected a multitude of the petitioner's contentions, including a

challenge to the sufficiency of the evidence, a challenge to the

admission of statements from Gallett's redacted police

interrogation, a challenge to the admission of his own redacted

statements, a challenge to various jury instruction requests, a

challenge to the judge's statements to the jury as prejudicial,

and a challenge to the judge's decision to limit the cross-

examination of a medical examiner. The court concluded by stating

that its review of the entire record, pursuant to Mass. Gen. Laws

ch. 278 § 33E, revealed no reason to disturb the verdict. See id.

at 652, 669.

Fifteen months later, the petitioner repaired to the

federal district court in search of a writ of habeas corpus. He

named as the respondent the superintendent of the North Central

Correctional Institution in Gardner, Massachusetts (for ease in

exposition, however, we shall treat the Commonwealth of

Massachusetts as the real party in interest). The petitioner

advanced seven claims of error, all of which were rejected by the

district court. See St. Jean v. Marchilli, No. 1:20-11139,

, at *4 (D. Mass. Oct. 3, 2022). This timely appeal

followed.

- 6 - II

We review de novo a district court's denial of a habeas

petition. See Porter v. Coyne-Fague,

(1st Cir.

2022). Pursuant to the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA),

Stat. 1214 (codified

as amended at

), we shall withhold a writ of habeas

corpus unless the state court decision either:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

(d). This first showing, described in section

2254(d)(1), is further divided into two distinct avenues for

relief: the "contrary to" clause and the "unreasonable

application" clause.

The "contrary to" clause applies when "the state court

arrives at a conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court decides a case

differently than [the Supreme] Court has on a set of materially

indistinguishable facts." Williams v. Taylor,

(2000). The "unreasonable application clause" applies when "the

state court identifies the correct governing legal principle from

[the Supreme] Court's decisions but unreasonably applies that

- 7 - principle to the facts of the prisoner's case."

The phrase

"clearly established Federal law, as determined by the Supreme

Court of the United States," means "the holdings, as opposed to

the dicta, of [the Supreme] Court's decisions as of the time of

the relevant state-court decision."

. Although state

courts must "reasonably apply" existing Supreme Court precedent,

they do not need to "extend that precedent." White v. Woodall,

(2014) (emphasis in original). Moreover, the

phrase "unreasonable application" means that the state court's

application of the Supreme Court's holdings "must be 'objectively

unreasonable,' not merely wrong; even 'clear error' will not

suffice."

at 419 (quoting Lockyer v. Andrade,

(2003)). The state court's application of the Supreme

Court's holdings is unreasonable "if, and only if, it is so obvious

that a clearly established rule applies to a given set of facts

that there could be no 'fairminded disagreement' on the question."

at 427 (quoting Harrington v. Richter,

(2011)). Finally, "evaluating whether a rule application was

unreasonable requires considering the rule's specificity," such

that "[t]he more general the rule, the more leeway courts have in

reaching outcomes in case-by-case determinations." Yarborough v.

Alvarado,

(2004).

The second showing, described in section 2254(d)(2),

requires that the state court's decision be "based on an

- 8 - unreasonable determination of the facts" on the record before that

court. This showing cannot be made when "'[r]easonable minds

reviewing the record might disagree' about the finding in

question." Brumfield v. Cain,

(2015) (alteration

in original) (quoting Wood v. Allen,

(2010)).

Even if we determine that a state court's decision

involves an unreasonable application of clearly established

federal law, "habeas relief will not follow automatically."

Foxworth v. St. Amand,

(1st Cir. 2009).

Prejudice is essential: only if the error is shown to have

prejudiced the petitioner and "had a 'substantial and injurious

effect or influence in determining the jury's verdict'" will habeas

relief be warranted. Delaney v. Bartee,

(1st

Cir. 2008) (quoting Brecht v. Abrahamson,

(1993)).

The short of it is that our review of a state court's

decision on the merits is subject to a number of "peculiarly

deferential standards." Porter,

(quoting Cronin v.

Comm'r of Prob.,

(1st Cir. 2015)). Yet, "[e]ven

in the context of federal habeas, deference does not imply

abandonment or abdication of judicial review."

(alteration in original) (quoting Brumfield,

).

With this framework in place, we turn to an examination

of the petitioner's claims regarding the SJC's opinion. We first

- 9 - examine his contention that the SJC failed to follow clearly

established precedent when it rejected his argument that there was

insufficient evidence that he acted as either a principal or joint

venturer in the killing and denied his motion for a required

finding of not guilty. Next, we address his contention that the

SJC's holding — that the trial court did not violate his

Confrontation Clause rights when it allowed the jurors to read his

codefendant's redacted statements — was based on an unreasonable

determination of the facts and/or a misapplication of federal

precedent. Third, we address his contention that the SJC

misapplied clearly established precedent in holding that the trial

court's refusal to allow him to cross-examine the medical examiner

about the location of the wounds on his hands was harmless error.

We then proceed to his contention that the SJC departed from

clearly established precedent and made its decision on the basis

of an unreasonable determination of the facts when it found no

error in the trial court's failure to provide various jury

instructions. Finally, we consider his contention that the SJC's

decision that the trial court committed no error when it told the

jurors that they were part of "the government" was contrary to and

an unreasonable application of clearly established precedent.

A

The petitioner's first contention is that the SJC

unreasonably sustained his conviction because the evidence was

- 10 - insufficient to support a jury finding beyond a reasonable doubt

that he acted as either a principal or joint venturer in the

killing of the victim. In his view, this insufficiency violated

his constitutional due process right to be convicted only upon

proof beyond a reasonable doubt of every element of a crime. See

In re Winship,

(1970) ("[T]he Due Process Clause

[of the Fourteenth Amendment] protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is charged.").

Jackson v. Virginia,

(1979), provides the

clearly established federal law governing direct review of

sufficiency claims. Jackson instructs a reviewing court to ask

"the relevant question [of] whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt."

(emphasis in original).

In reviewing a habeas petition that raises a sufficiency

claim under Jackson, we apply — in light of AEDPA's command that

we may not overturn an underlying state court decision rejecting

a sufficiency challenge unless the decision is "objectively

unreasonable," Parker v. Matthews,

(2012) (quoting

Cavazos v. Smith,

(2011)) — a "twice-deferential

standard,"

Our inquiry focuses on "whether the state court['s]

ruling that the evidence is constitutionally sufficient was itself

- 11 - 'unreasonable.'" Winfield v. O'Brien,

(1st Cir.

2014) (quoting

(d)(1)). "'Unreasonable' in this

context means that the decision 'evinces some increment of

incorrectness beyond mere error.'"

(quoting Leftwich,

).

With these principles in mind, we consider the SJC's

resolution of the petitioner's sufficiency challenge. Before the

SJC, the petitioner contended that the evidence was insufficient

to establish that he acted as either a principal or joint venturer

in the killing. See Gallett,

. The Commonwealth

argued that there was sufficient evidence to support a conviction

under a theory of felony-murder — with armed robbery as the

predicate felony — and under a theory of extreme atrocity and

cruelty. See

Following established Massachusetts law, the SJC

determined that it did not need to "examine the sufficiency of the

evidence separately as to principal and joint venture liability,"

but could limit its inquiry to "whether the evidence is sufficient

to permit a rational juror to conclude beyond a reasonable doubt

that the defendant knowingly participated in the commission of the

crime charged, with the intent required to commit the crime."

(quoting Commonwealth v. Zanetti,

(2009)).

Building on this foundation, it observed that the Commonwealth

only had to prove that the petitioner "was a joint venturer in an

- 12 - armed robbery and that the victim's death occurred in the

commission or attempted commission of that armed robbery."

To find the petitioner guilty under a theory of felony-

murder with armed robbery serving as the underlying felony, the

SJC explained, the Commonwealth had to prove that he "was part of

a venture in which at least one of the coventurers was armed with

a dangerous weapon, either applied violence to the victim's body

or put the victim in fear, and took the victim's property with the

intent to steal it."

Viewing the evidence in the light most

favorable to the Commonwealth, the SJC determined that:

Valery testified that she overheard the [petitioner, Gallett,] and Mathurin planning to rob someone. . . . The [petitioner, Gallett,] and Mathurin ordered pizza to be delivered to a vacant house. Mathurin asked if the delivery driver could change a one hundred or fifty dollar bill. [The petitioner] always carried a knife on his person, and Gallett carried his knife when he left the house. The jury reasonably could infer that [the petitioner] was armed with a knife; thus, the Commonwealth was not required to prove that [the petitioner] knew that Gallett was armed. The victim was lured into the vacant house and stabbed sixteen times. There was evidence of [the petitioner]'s bloody footprints inside the house, and [the petitioner] had the victim's blood on his jeans. Furthermore, Tunis testified that he saw Mathurin walk the victim to the rear door of the house and then witnessed the [petitioner, Gallett,] and Mathurin leave together. The jury could reasonably infer that [the petitioner] was inside the house. With [the petitioner] driving the victim's vehicle, the [petitioner, Gallett,] and

- 13 - Mathurin then fled the scene. The [petitioner, Gallett,] and Mathurin abandoned the vehicle at the rear of a church parking lot. . . . Valery testified that the [petitioner, Gallett,] and Mathurin were nervous and smelled of bleach when she saw them later that night. Upon discovering the victim's body, police noticed that the victim's pockets were turned inside out. Reasonable inferences from the evidence showed that [the petitioner] was armed with a knife, either applied violence to the victim's body or put the victim in fear, and took the victim's property — the pizza, money, and vehicle — with the intent to steal it.

Id. at 658-59. Given these facts, the SJC supportably concluded

that "[t]he evidence was more than sufficient to permit a

reasonable jury to find that the [petitioner] committed the murder

under a theory of felony-murder." Id. at 658.

There was more. To find the petitioner guilty under a

theory of extreme atrocity or cruelty, the SJC explained that the

Commonwealth had to prove that he "knowingly participated in the

killing, that he intended to cause death or grievous bodily harm

or engaged in an act a reasonable person would know created a plain

and strong likelihood of death, and that the killing was committed

with extreme atrocity or cruelty." Id. at 659. Assessing the

evidence in the light most favorable to the Commonwealth, the SJC

reasonably determined that:

Fair inferences from the evidence showed that [the petitioner] was armed with a knife, planned to rob someone, lured the victim into the vacant house, and attacked the victim. The victim was stabbed sixteen

- 14 - times. . . . [The petitioner] always carried a knife and had the victim's blood on his jeans and his sneakers. Furthermore, he had multiple cuts on his right hand. Although [the petitioner's] theory at trial was that he cut his hand by punching a window at the vacant house, [the petitioner] told doctors at a subsequent emergency room visit that he had cut his hand with a pocketknife; [and] told officers during his interrogation that he was cut with a knife during a fight.

Id. at 659-60. The SJC concluded, "the evidence supports the

conviction of murder under a theory of extreme atrocity or cruelty

as well." Id. at 660.

In this court, the petitioner contends that the SJC

failed to follow clearly established precedent when it rejected

his argument that the evidence was insufficient to support his

conviction. He advances two reasons in support of this claim.

First, he claims that, because the Commonwealth presented no

evidence that he stabbed the victim, it was unreasonable for the

SJC to find that the evidence was sufficient to support his

conviction under either a theory of felony-murder or a theory of

extreme atrocity or cruelty. Second, he claims that there was

insufficient evidence to find that he was a joint venturer. This

gap exists because the Commonwealth needed to establish either

that he had knowledge that Gallett was armed or that he was himself

armed with a knife. And yet, he claims, the evidence that the

Commonwealth proffered to establish the latter fact — the testimony

of Valery — was insufficient and circumstantial. After all, he

- 15 - notes, Valery had only known him for a few weeks and "she had only

seen [him] carry a pocketknife on a few occasions in the recent

past." Inasmuch as her testimony "does not support an inference

that he 'always' carried a knife," no reasonable jury could have

determined that he was guilty under either theory — and the SJC

was unreasonable in concluding otherwise.

The district court rejected the claim that the SJC failed

to follow clearly established precedent, and so do we. The SJC

resolved the petitioner's sufficiency claim under the

Massachusetts standard laid out in Commonwealth v. Gomes,

(2016). See Gallett,

. Because this

standard mirrors that of Jackson, we hold that the SJC's decision

did not deviate from clearly established federal law. See Housen

v. Gelb,

(1st Cir. 2014).

Nor do we see any foundation for the petitioner's more

specific claims as to why the SJC erred when it rejected his

argument that the evidence was insufficient to support his

conviction. The SJC appropriately noted that, because the

petitioner was convicted on a joint-venture theory, it did not

need to "examine the sufficiency of the evidence separately as to

principal and joint venture liability." Gallett,

(quoting Zanetti,

). Instead, it was only

required to inquire into "whether the evidence is sufficient to

permit a rational juror to conclude beyond a reasonable doubt that

- 16 - the defendant knowingly participated in the commission of the crime

charged, with the intent required to commit the crime."

(quoting Zanetti,

).

With respect to the conviction under a theory of felony-

murder with armed robbery as the predicate offense, the SJC only

needed to find that there was sufficient evidence to prove that

the petitioner "was part of a venture in which at least one of the

coventurers was armed with a dangerous weapon, either applied

violence to the victim's body or put the victim in fear, and took

the victim's property with the intent to steal it."

The

evidence amply demonstrated that the petitioner, Gallett, and

Mathurin planned the robbery, successfully lured the victim into

a vacant house with the intent to commit the robbery and — during

the course of the robbery — stabbed and killed him. Even though

there was no direct evidence that the petitioner was the one who

stabbed the victim, there was plenty of evidence to establish that

he was a joint venturer. As such, the petitioner's first argument

is beside the point.

So, too, the evidence supported the finding that the

petitioner was armed with a knife during the robbery. On this

record, we have little difficulty concluding that the SJC was not

"objectively unreasonable" in its determination. Parker,

(quoting Cavazos,

). Valery's testimony

underpinned this finding: in response to the question "How often

- 17 - had you seen [the petitioner] with a knife?" she testified that

"He always carried it on him." Even though the petitioner contends

that testimony should be interpreted more narrowly, this argument

does not move the needle. See Porter,

(explaining

that "demanding showing" that "the state court decision 'was based

on unreasonable determination of facts' . . . cannot be made when

'[r]easonable minds reviewing the record might disagree' about the

finding in question" (alteration in original) (quoting Brumfield,

)). If more evidence is needed to support the

finding that the petitioner was armed with a knife — though surely

it is not — the SJC also pointed to the fact that the petitioner

had the victim's blood on his jeans, see Gallett,

, and that the petitioner had multiple cuts on his right hand,

which he admitted were knife wounds when speaking with emergency

room doctors, see

.

With respect to the conviction under a theory of extreme

atrocity or cruelty, the SJC needed to find that there was

sufficient evidence to prove that the petitioner "knowingly

participated in the killing, that he intended to cause death or

grievous bodily harm or engaged in an act a reasonable person would

know created a plain and strong likelihood of death, and that the

killing was committed with extreme atrocity or cruelty."

. In this instance, the SJC's finding of sufficient evidence

was reasonable. As we already have determined, the evidence was

- 18 - sufficient to show that the petitioner was armed with a knife. By

the same token, it was reasonable to determine that the evidence

showed that the petitioner — along with Gallett and Mathurin —

attacked the victim and did so with extreme atrocity or cruelty.

We therefore hold that the SJC's determination that there was

sufficient evidence was not unreasonable.

B

We next consider the petitioner's claim that his

Confrontation Clause rights were violated.

1

The Constitution guarantees 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. In Bruton v. United States,

(1968), the Supreme

Court held that a defendant is deprived of this right "where the

powerfully incriminating extrajudicial statements of a

codefendant, who stands accused side-by-side with the defendant,

are deliberately spread before the jury in a joint trial," and the

codefendant "does not testify and cannot be tested by cross-

examination."

. This violates the Constitution, the

Court made clear, even if the jury receives limiting instructions

to disregard such statements. See

(explaining that

"the risk that the jury will not, or cannot, follow instructions

is so great, and the consequences of failure so vital to the

- 19 - defendant, that the practical and human limitations of the jury

system cannot be ignored").

In Richardson v. Marsh,

(1987), the Supreme

Court clarified Bruton. It held that Bruton does not apply "when

the codefendant's confession is redacted to omit any reference to

the defendant, but the defendant is nonetheless linked to the

confession by evidence properly admitted against him at trial."

. In Bruton, the Court explained, "the codefendant's

confession 'expressly implicat[ed]' the defendant as his

accomplice" and "at the time that confession was introduced there

was not the slightest doubt that it would prove 'powerfully

incriminating.'"

(alteration in original) (quoting

Bruton,

n.1, 135). By contrast, the confession in

Richardson "was not incriminating on its face, and became so only

when linked with evidence introduced later at trial (the

defendant's own testimony)."

Consistent with the foregoing,

the Richardson Court held that "the Confrontation Clause is not

violated by the admission of a nontestifying codefendant's

confession with a proper limiting instruction when . . . the

confession is redacted to eliminate not only the defendant's name,

but any reference to his or her existence."

.

Richardson's bottom line was that, whereas statements that are

incriminating "only when linked to other evidence" can be cured by

proper limiting instructions, "facially incriminating" statements

- 20 - cannot.

; see United States v. Vega Molina,

(1st Cir. 2005) ("Statements that are incriminating

only when linked to other evidence in the case do not trigger

application of Bruton's preclusionary rule.").

Richardson was not the Supreme Court's last word on the

scope of Bruton. In Gray v. Maryland,

(1998), the

Court recounted that "Richardson placed outside the scope of

Bruton's rule those statements that incriminate inferentially."

. But — the Gray Court stressed — "inference pure and

simple cannot make the critical difference."

Rather, the

applicability of Richardson "must depend in significant part upon

the kind of, not the simple fact of, inference."

(emphasis in original).

The codefendant's statement at issue in Gray was a

response to the question, "Who was in the group that beat

Stacey[?]"

. The redacted statement — as read to the

jury — was "Me, deleted, deleted, and a few other guys."

. When this statement appeared in the transcript, which was

entered into evidence, it read "Me, , and a few other guys."

. The Court recognized that "the jury [had to] use inference

to connect . . . [this] redacted confession with the defendant."

. Even so — and despite the fact that it was not possible

to infer solely from the text of the codefendant's redacted

statement to whom the word "deleted" referred — the Court held

- 21 - that the redacted confession was facially incriminatory. See

"[W]e believe," Justice Breyer wrote, that "considered as a class,

redactions that replace a proper name with an obvious blank, the

word 'delete,' a symbol, or similarly notify the jury that a name

has been deleted are similar enough to Bruton's unredacted

confessions as to warrant the same legal results."

To explain why Gray was distinguishable from Richardson,

the Court focused on the different "kind of" inference at issue in

each case.

(emphasis in original). In Richardson, the

"inferences involved statements that did not refer directly to the

defendant himself and which became incriminating 'only when linked

with evidence introduced later at trial.'"

(quoting

Richardson,

). Gray, however, was a horse of a

different hue: there, the inferences "involve statements that,

despite redaction, obviously refer directly to someone, often

obviously the defendant," and the jury could "ordinarily" draw

these inferences "immediately."

What is more, in Gray, "the

redacted confession with the blank prominent on its face, in

Richardson's words, 'facially incriminat[ed]' the codefendant."

(emphasis in original) (quoting Richardson,

).

As such, while Richardson lay outside the scope of Bruton, Gray

fell within its ambit.

- 22 - In the last analysis,

Gray makes clear that, even when the jury must engage in some inferential reasoning in order to conclude that a codefendant's statement is incriminating, the statement still may fall within the scope of Bruton. For the statement to do so, though, the inference that is necessary to make it incriminating must be one 'that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial,' such that the statement 'obviously' and 'directly' implicates the defendant in the crime.

United States v. de Leon-De La Rosa,

(1st Cir.

2021) (quoting Gray,

).

2

Against this backdrop, we turn to the case at hand. At

the trial, Gallett did not testify, but a redacted audio-video

recording of his statements was played for the jury. For ease in

reference, the jury was given a redacted transcript of Gallett's

statements. Prior to playing the recordings, the judge informed

the jury that this transcript was redacted, that they were not to

speculate about the gaps or the reasons for the gaps in the

transcript, and that the transcript was not evidence.

Before the SJC, the petitioner argued that the use and

admission of the redacted audio-video recording of Gallett's

statements and the use of the redacted transcript of his statements

violated Bruton. The gaps in the recording and the blank spaces

- 23 - in the transcript, he argued, directly inculpated him by inviting

the jury to speculate on the identity of the redacted accomplice.

The SJC rejected this argument, holding "that there was

no Bruton violation because Gallett's redacted statements did not

name expressly, implicate, or obviously refer to [the petitioner]

so as to be 'facially' incriminating." Gallett,

(quoting Gray,

). The SJC offered a plethora of

reasons to substantiate this conclusion: that, given that there

were three people involved in the killing of the victim (Gallett,

the petitioner, and Mathurin), "[i]t would not have been obvious

to the jury that the blank space was specifically referring to

[the petitioner]," id. at 661; that, "even if we read in specific

pronouns to the transcript, a single pronoun, if not referencing

a specific individual, would not raise a Bruton issue in these

circumstances," id.; that the petitioner's argument that the jury

was able to combine the audio-video recording and the transcript

"to form the opinion that the blank spaces in the transcript

referred to [the petitioner]" was a weak one, given that "[e]ven

where pronouns such as 'us' and 'we' were redacted, the blank

spaces that remained were in the transcripts only," id.; that the

judge's limiting instructions concerning the transcript "were

sufficient to obviate [the petitioner's] concern over the gaps,"

id.; that the "redacted statements incriminate [the petitioner]

only to the extent that the jury accepted the other evidence

- 24 - against [the petitioner] that places him at the scene of the

crime," id.; that "the redactions from the audio-video recordings

and transcripts would not lead to confusion or undue speculation,"

id.; and that the petitioner actually "relied on his and Gallett's

statements as a critical part of his defense" and "benefited from

redactions in his own statements that would have contradicted his

theory on defense," id. at 662.

On appeal, the petitioner argues that the SJC erred in

holding that the trial court did not violate Bruton when it allowed

the jurors to read Gallett's redacted statements. In the

petitioner's view, the SJC's decision was based on both an

unreasonable determination of the facts and a misapplication of

federal precedent. He directs our attention to a number of

redacted statements, which he submits were "powerfully

incriminating." These include the following:1

• Gallett's statement that, once the victim entered

the abandoned house, he "starts like taking out the

pizzas and asking [ ] to turn on the light."

• Gallett's statement that, after he hit the victim

in the neck, "[ ] ended up all the way into like

the first room after the kitchen, in like this room,

and like [the victim] still wasn't dead."

1We have indicated where the redactions in the transcript were located with the following symbol: "[ ]".

- 25 - • Gallett's statement that, after he, Mathurin, and

the petitioner took the victim's vehicle and drove

to the church, "[ ] cleaned out the car, like all

the stuff in it."

• Gallett's statement that the "knife [he] used up

there" is "gone," that he is "not sure" where it

went, and that he "remember[s] [ ] cleaning it

up."

The SJC, the petitioner posits, made an unreasonable determination

of the facts when it found that these redactions were not

"facially" incriminating given that they did not obviously refer

to the petitioner rather than Mathurin. This was unreasonable,

the petitioner says, in light of the fact that Mathurin's name

appeared unredacted in other parts of the transcript. Thus, "[a]ny

reasonable juror" would have deduced that "[t]he court is not

hiding Mathurin's name" and any redaction must be of the

petitioner's name. In any event, the SJC — as the petitioner sees

it — misapplied Gray when it reasoned that there was no Bruton

violation given that "Gray makes no exception merely because a

blank space could refer to multiple persons." The petitioner adds

that Gray itself revolved around a redaction that could have

referred to multiple individuals — yet the Supreme Court found

that the redacted confession violated Bruton.

- 26 - 3

We have reviewed the state court trial record with care.

We conclude that the SJC's decision was based upon an unreasonable

application of Gray.

Gray made clear that "[r]edactions that simply replace

a name with an obvious blank space or a word such as 'deleted' or

a symbol or other similarly obvious indications of

alteration . . . leave statements that, considered as a class, so

closely resemble Bruton's unredacted statements that, in our view,

the law must require the same result."

. This

holds true even "if the juror hears the judge's instruction not to

consider the confession as evidence against [the defendant],"

, and even when "the reference might not be transparent"

like when "a confession . . . uses two (or more) blanks, even

though only one other defendant appears at trial,"

.

What is more, a Bruton violation occurs even when a redaction is

such that "the jury must use inference to connect the statement in

this redacted confession with the defendant."

.

The redactions here fall within the class that, Gray

determined, "so closely resemble[s] Bruton's unredacted

statements,"

, and, thus, are "facially incriminating"

under Richardson,

. This conclusion flows from the

simple fact that the jury would have easily and immediately been

able to infer that the redacted portions of Gallett's statements

- 27 - in the transcript referred to the petitioner rather than to

Mathurin. See Gray,

. We explain briefly.

To begin, the redacted portions of Gallett's statements

in the transcript clearly included "obvious indications of

alteration."2

. That these alterations consisted of

deletions of multiples lines and passages and not just blank spaces

— facts that the Commonwealth contends precludes a determination

that the alterations were facially incriminating — is beside the

point. What matters is that the redactions plainly indicate that

alterations have been made. These redactions would have led the

jury quite readily to infer that the deletions referred to the

petitioner. Given that it was Gallett's statement, the only other

option was that the deletions referred to Mathurin. Yet, Mathurin

was not on trial. A juror would thus have likely reasoned that

the most obvious person to whom the redactions were referring to

was the petitioner. To cinch the matter, Mathurin's name appeared

unredacted elsewhere in the transcript and, therefore, it would

have been child's play for the jury to deduce that the redacted

portions must refer to someone other than Mathurin. The

2 It is possible that the audio-visual recording of Gallett's statements did not make the deletions obvious. Even so, the fact that the deletions in the transcript were obvious compels our conclusion that there was a Bruton violation. And although the transcript itself was not introduced into evidence, even "a nonadmissible declaration cannot be wiped from the brains of the jurors." Bruton,

; see Freeman v. Superintendent Fayette SCI,

(3d Cir. 2023).

- 28 - petitioner, of course, was the only remaining option. In addition

— and in contradistinction to Richardson — the redactions referred

directly to the petitioner and were incriminating even without

being "linked with evidence introduced later at trial."

Richardson,

. To put it bluntly, these redactions

were "facially incriminating."

.

To say more on this point would be to paint the lily.

We conclude that the SJC's determination that there was no Bruton

violation was based on "an unreasonable application of[] clearly

established Federal law, as determined by the Supreme Court of the

United States."

(d)(1).

4

This conclusion does not end our inquiry. Having found

that the SJC unreasonably applied Gray, we next must determine

whether its error resulted in "actual prejudice" and had a

"substantial and injurious effect or influence in determining the

jury's verdict." Brecht,

.

In making this determination, our review is de novo.

Importantly, the SJC did not engage in a Brecht analysis. Thus —

notwithstanding the deferential review mandated by AEDPA — "we can

hardly defer to the state court on an issue that the state court

did not address." Fortini v. Murphy,

(1st Cir.

2001).

- 29 - In undertaking a Brecht analysis, "[t]he burden of

establishing harmlessness rests with the state qua respondent."

Foxworth,

. And if we "entertain[] 'grave doubt as

to harmlessness, the petitioner must win.'"

(quoting O'Neal

v. McAninch,

(1995)).

The Commonwealth argues that the petitioner failed to

show that the Brecht hurdle was cleared for three reasons. First,

it suggests that "Gallett's statements, when read as a whole,

recount only his own involvement in the crimes." Although it

concedes that some of Gallett's statements "could have been

construed to refer to [someone] else," it insists that none of

these statements "directly implicate another individual in the

commission of the robbery or murder." Second, the Commonwealth

suggests that there was no Brecht error because the petitioner

"used Gallett's confessions to advance his [own] defense." Third,

it suggests that "there was overwhelming evidence supporting

petitioner's convictions" and, thus, even if Gallett's redacted

statements were improperly received in evidence, they did not have

a substantial and injurious effect or influence in arriving at the

jury's verdict.

We start with the Commonwealth's second suggestion,

which we find unpersuasive. We do not see how the petitioner's

use of Gallett's statements in support of his own defense

necessarily insulates those statements from the claim that they

- 30 - had a prejudicial effect vis-à-vis the verdict. The Commonwealth

offers no persuasive authority in support of its position, and we

are not aware of any. Consequently, we reject this suggestion out

of hand.

This leaves the Commonwealth's first and third

suggestions. The first suggestion — that none of the redacted

statements directly implicates the petitioner in the commission of

the robbery or murder — is literally correct. None of those

statements explicitly singles out the petitioner as being the one

who either robbed or murdered the victim. But to constitute a

prejudicial Brecht error, the redacted statements need not

directly link the petitioner to these crimes. All that they need

to do is to have a "substantial and injurious effect or influence

in determining the jury's verdict." Brecht,

. The

Commonwealth's first suggestion is, therefore, a dead letter.

This brings us to the Commonwealth's final suggestion.

That suggestion is built on bedrock: there was abundant evidence

for the jury to find the petitioner guilty under either a theory

of felony-murder or a theory of extreme atrocity or cruelty. But

our finding that the SJC reasonably determined that there was

sufficient evidence to convict the petitioner is not necessarily

coterminous with the outcome of a Brecht analysis. See, e.g.,

Foxworth,

. On this issue, we hold that the

substantial evidence available obviated the possibility that

- 31 - Gallett's redacted statements prejudiced the jury. Put another

way, we entertain no grave doubt that the jury would have reached

the same verdict even if it had not heard Gallett's redacted

testimony.

Of course, Gallett's redacted statement in which he

asserted that he "remember[ed] [ ] cleaning [the knife] up" was

arguably different in kind from his other redacted statements.

The other redacted statements placed the petitioner in the

abandoned house, in the room in which the victim died, and in the

victim's vehicle. One of those statements further implicated the

petitioner in cleaning up blood from the vehicle. And yet — in

addition to the fact that there was a substantial amount of

evidence in the record that already established these connections

between the petitioner and the crime scene — none of these

statements linked the petitioner to the murder. By contrast,

Gallett's statement describing the petitioner cleaning the knife

seemingly close in time and space to the murder may have insinuated

just that.

Even so, the assertion that this redacted statement

prejudiced the petitioner stands on shaky ground. There was a

substantial amount of other evidence in the record that already

tied the petitioner to the murder. Valery's testimony established

that the petitioner helped plan the heist and carried a knife on

his person. The victim was stabbed repeatedly; a bent and broken

- 32 - knife was found at the scene; the petitioner had the victim's blood

on his clothes; and the petitioner had bleeding cuts on his hand

shortly after the murder. See Gallett,

. What

is more, the petitioner himself told the doctors treating him in

the emergency room that the injuries were caused by a knife. See

In short, the petitioner was caught red-handed.

The most that the petitioner's counsel could offer to

blunt the force of this evidence was to point to the petitioner's

shifting stories and evidence that there was some broken glass at

the scene of the murder. He then speculated that the petitioner

had acquired the wounds from breaking the glass to enter the scene

(contrary to what the petitioner told the doctors). The dissent

conjectures that, if indeed the glass were the true source of the

cuts, the petitioner may have lied to the treating physicians to

conceal his presence at the scene of the crime. But if the

petitioner was intent on lying, it seems implausible that — knowing

that the victim had died of stab wounds — he would have volunteered

that a knife was the source of the cuts. All in all, this properly

admitted evidence, by itself, left little room for any doubt that

the petitioner stabbed the victim. Cf. Foxworth,

(holding that codefendant's redacted statement both violated

Bruton and constituted Brecht error when other incriminating

evidence was scarce and thus it was probable that redacted

statement had substantial and injurious influence on outcome).

- 33 - And because the jury was given a joint venturer instruction, it

was not required to pick only one murderer.

Then, too, Gallett's testimony was hardly a model of

truthfulness. When it came to describing the knife, he offered

wildly inconsistent testimony about who cleaned it and about who

possessed it on the morning after the murder. In any event,

whatever probative value Gallett's testimony might be said to have

had, it was like coals to Newcastle. See Sinnott v. Duval,

(1st Cir. 1998) (finding no Brecht error in

codefendant's improperly admitted testimony because that testimony

"had to have fared poorly in the jury's minds").

The genius of the jury system is the ability of impartial

jurors to make a common-sense appraisal of the evidence before

them. The dissent's analysis posits a jury made up of remarkably

gullible individuals. We think that almost any real-life jury

would find guilt after taking into account the petitioner's role

in planning a crime that would be easy to investigate if a live

victim was left behind, the blood on the petitioner's clothes, his

ownership of a knife, the cuts on his hands, his admission to the

emergency room doctors, and his flimsy theory for why that

admission was supposedly a lie. Viewed in light of the totality

of the evidence in this case, we conclude that Gallett's statements

did not have a "substantial and injurious effect or influence in

determining the jury's verdict." Brecht,

. It

- 34 - follows inexorably that the SJC's application of Gray, though

mistaken, does not warrant habeas relief.

C

The petitioner next argues that the SJC misapplied

clearly established precedent when it held that the trial court

committed only harmless error in refusing to allow him to cross-

examine the Commonwealth's medical examiner about the location of

the wounds on his hands. We set the stage.

During the trial, the petitioner attempted to cross-

examine the medical examiner about wounds on his right hand. After

a detective testified that the petitioner had cuts on "the meaty

side on the back of [his] right hand," "a laceration type injury

on the heel near his wrist," and "on the knuckle," the petitioner's

counsel asked the medical examiner, "If a person were wielding a

knife and injured themselves on the knife that they were wielding,

you would expect to see injuries to the interior of their palm; is

that fair to say?" The Commonwealth objected, and the judge

sustained the objection. At sidebar, the judge held firm, stating

that she did not "think this witness [was] qualified to talk about

the possible wounds that might be inflicted on knife wielders."

The petitioner argued that the judge violated his

confrontation rights by limiting his cross-examination of the

medical examiner. The SJC acknowledged that "the judge should

have permitted [the petitioner] to cross-examine the medical

- 35 - examiner about theoretical wounds on [the petitioner's] hand," but

determined that the petitioner was "unable . . . to demonstrate

that he was prejudiced by the judge's ruling." Gallett,

. In support, the SJC explained that, "the judge did not

completely bar [the petitioner] from cross-examining the medical

examiner about knife wounds," inviting the petitioner to present

expert testimony about the cut to his hand if it was relevant.

The petitioner never did so. Moreover, the petitioner was

allowed to present other evidence to demonstrate that he did not

wield a knife.

The petitioner suggests that the SJC's decision was a

misapplication of the Supreme Court's holding in Delaware v. Van

Arsdall,

(1986).3 He insists that a proper analysis

of Van Arsdall requires a finding that he was prejudiced by the

trial court's limitation on his cross-examination of the medical

examiner.

This suggestion does not move the needle. Van Arsdall

is not on point. The issue before the Van Arsdall Court was

whether a trial court's denial of a defendant's ability to engage

in an "otherwise appropriate cross-examination designed to show a

3Although the SJC did not cite Van Arsdall, we find this omission inconsequential. See Zuluaga v. Spencer,

(1st Cir. 2009) ("[I]t would elevate form over substance to impose some sort of requirement that busy state judges provide case citations to federal law (or corresponding state law) before federal courts will give deference to state court reasoning.").

- 36 - prototypical form of bias on the part of the witness" constituted

a violation of the Confrontation Clause. Id. at 680. To be

specific, the inquiry concerned whether a limitation on a

defendant's ability to cross-examine a witness in order to impeach

the witness prejudiced the defendant. See Brown v. Ruane,

(1st Cir. 2011) ("The Supreme Court's application of

Van Arsdall has always involved evaluation of restrictions on

cross-examination intended to impeach the credibility of the

witness being examined."). Here, by contrast, the limitation on

the cross-examination had nothing to do with impeaching or

questioning the credibility of the medical examiner. Because Van

Arsdall's prejudice analysis is inapposite, we do not see how the

SJC's holding can be deemed to be "contrary to, or involve[] an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States."

(d)(1); see Knowles v. Mirzayance,

(2009)

("[T]his Court has held on numerous occasions that it is not 'an

unreasonable application of' 'clearly established Federal law' for

a state court to decline to apply a specific legal rule that has

not been squarely established by this Court.").

We add, moreover, that the petitioner's claim that the

SJC unreasonably applied federal precedent fails to withstand

scrutiny when analyzed in light of relevant Supreme Court

precedent. "Whether rooted directly in the Due Process Clause of

- 37 - the Fourteenth Amendment or in the Compulsory Process or

Confrontation clauses of the Sixth Amendment, the Constitution

guarantees criminal defendants 'a meaningful opportunity to

present a complete defense.'" Crane v. Kentucky,

(1986) (citations omitted) (quoting California v. Trombetta,

(1984)). As part of this meaningful opportunity,

defendants enjoy the right to confront and cross-examine

witnesses, see Chambers v. Mississippi,

(1973),

and "elicit exculpatory defense evidence through cross-

examination," Brown,

. But this right "is not

absolute and may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process." Chambers,

. Withal, "[t]his right is abridged by evidence

rules that 'infring[e] upon a weighty interest of the accused' and

are 'arbitrary' or 'disproportionate to the purposes they are

designed to serve.'" Holmes v. South Carolina,

, 324-

25 (2006) (second alteration in original) (internal quotation

marks omitted) (quoting United States v. Scheffer,

(1998)). Infringements on this right to present a complete

defense are subject to a harmless-error standard. See Crane,

.

Given this legal landscape, we cannot say that the SJC's

ruling "was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme

- 38 - Court of the United States."

(d)(1). As the SJC

explained, even though the trial court erred, the petitioner was

wholly unable to demonstrate that he was prejudiced by this error.

See Gallett,

. The petitioner was given ample

opportunity to present his defense, including a chance to present

his own expert testimony regarding the cut to his hand. See

That he never sought to call such a witness does not render the

trial court's error prejudicial. We therefore conclude that the

SJC's ruling did not involve an unreasonable application of Supreme

Court precedent.

D

The petitioner next argues that the SJC's finding of no

error in the trial court's failure to provide various jury

instructions departed from clearly established precedent and was

based on an unreasonable determination of the facts. At issue is

the trial court's failure to provide (1) a supplemental instruction

regarding armed robbery, (2) a lesser included offense instruction

for use of a motor vehicle without authority, and (3) a humane

practice instruction. We consider these matters sequentially.4

4 The Commonwealth argues that the petitioner's first two claims of instructional error are unexhausted given that the constitutional objections pressed by the petitioner were not made in the state court. We do not agree: we believe that there are grounds for finding that his claim of prejudice was "functionally identical to a federal-law claim" of a due process violation and that he has exhausted any such claim. Scarpa v. Dubois,

(1st Cir. 1994); see Coningford v. Rhode Island, 640 F.3d

- 39 - 1

At trial, the petitioner requested "that the judge

instruct the jur[ors] that they 'must find that the required intent

to steal coincided with the use of force' to find him guilty of

armed robbery and felony-murder. The judge declined to give the

instruction, stating: 'I think it's inappropriate based on the

state of [the] evidence . . . .'" Id. at 662 (second alteration

in original). The SJC affirmed the trial court's refusal. See

id. at 663. In the SJC's estimation, the trial court's

instructions regarding felony-murder with robbery serving as the

predicate offense "as a whole, sufficiently explained to the jury

that the Commonwealth was required to prove the defendant harbored

an intent to steal at the same time he used force." Id. at 662.

The SJC explained that the trial court's instructions to the jury

— "that '[t]he actual force and violence must be the cause of the

defendant obtaining possession of the property,' and that 'the

Commonwealth must prove that the defendant took and carried away

the property against the alleged victim's will with the intent to

deprive the alleged victim of his possessions permanently'" — were

"located mere lines apart in the transcript." Id. (alteration in

original). Owing to the fact that the instruction on felony-

murder similarly conveyed that the Commonwealth had to prove that

478, 482-83 (1st Cir. 2011). Accordingly, we consider his argument on the merits.

- 40 - "the killing occurred in connection with the felony, and at

substantially the same time and place" — the SJC found no error.

Id. at 663.

The petitioner invites us to hold that the SJC's decision

was based on an unreasonable application of facts. He contends

that the SJC did not appreciate the fact that the trial court's

instructions failed adequately to convey that armed robbery

requires that the intent to steal coincide with the act of force.

We decline this invitation. Nothing in the SJC's

conclusions was unreasonable in light of the facts. Among other

things, it reasonably concluded that the instructions — taken as

a whole — properly explained that the intent to steal must coincide

with the act of force.

So, too, we decline to hold the SJC's decision to be

contrary to and an unreasonable application of clearly established

federal precedent. The petitioner asserts that the SJC flouted

the statement in Mathews v. United States,

(1988),

that "[a]s a general proposition a defendant is entitled to an

instruction as to any recognized defense for which there exists

evidence sufficient for a reasonable jury to find in his favor."

We do not agree. Mathews concerned an entrapment defense and, as

we have explained, "the Supreme Court has never applied the

language in Mathews relied on by petitioner in any other case, nor

to any defense other than the entrapment defense at stake in

- 41 - Mathews." Hardy v. Maloney,

(1st Cir. 2018).

At any rate, this excerpt "from Mathews is dicta, not a holding,

and we do not set aside state court rulings on habeas review for

being at odds with Supreme Court dicta."

We therefore

conclude that the SJC's decision was not contrary to or an

unreasonable application of clearly established federal

precedent.5

2

At trial, the petitioner requested that the jury be

instructed on the use of a motor vehicle without authority as a

lesser included offense of armed robbery. "The judge declined to

give the instruction because she thought it was 'highly

inappropriate when [there were] four alternative items that are

alleged to have been stolen' and that the instruction did not fit

with 'the facts and circumstances of this case.'" Gallett,

(alteration in original). The SJC affirmed this

The petitioner also relies on the decision in Stevenson v. 5

United States,

(1896), and on this court's decision in United States v. Gamache,

(1st Cir. 1998), as supporting his claim that the SJC's decision was contrary to and an unreasonable application of clearly established federal precedent. Inasmuch as neither of these cases speaks to whether a requested instruction may be denied on the ground that other instructions cover the requested one in substance — which was the basis given by the SJC for denying the petitioner's requested supplemental instruction here — we have little difficulty in concluding that they do not render the SJC's decision contrary to or an unreasonable application of clearly established federal precedent.

- 42 - decision, concluding that "the evidence did not warrant a finding

of the lesser included offense of use of a motor vehicle without

authority."

In addition to pointing to the fact that "[t]he

elements differentiating the two crimes were not sufficiently in

dispute so that the jury could consistently find the defendant

innocent of the greater and guilty of the lesser included offense,"

the SJC commented that there was not even sufficient dispute that

the petitioner intended to permanently deprive the victim of his

vehicle.

Given that the indictment alleged that the

petitioner stole more than just the victim's vehicle, the SJC

concluded that "[i]t would have been inappropriate to give the

lesser included instruction where the evidence and circumstances

of the case did not support it." Id. at 664.

The petitioner argues that the SJC's decision was based

on an unreasonable determination of the facts. Whereas the SJC

determined that a jury could not rationally have found that the

petitioner did not intend to permanently deprive the victim of his

vehicle, the petitioner contends that a jury could have rationally

found that he did not know that the victim was dead, that he was

already leaving the abandoned house when Gallett gave him the keys,

and that he drove the vehicle a short distance to a church parking

lot and abandoned it there. From these facts, he suggests a

rational jury could have found this incident to be "more like

joyriding than armed robbery."

- 43 - This suggestion is unconvincing. First, the evidence

showed that the petitioner drove the victim's vehicle to the back

of the church parking lot, removed the pizzeria sign that had

previously been atop it, cleaned the vehicle with bleach and

rubbing alcohol, and proceeded to abandon it. These actions, as

the SJC reasonably noted, indicated that the petitioner intended

to deprive the victim of the vehicle permanently. See id. at 659,

663. What is more, the evidence showed that the petitioner stole

more than just the vehicle from the victim. See id. There was,

therefore, nothing unreasonable about the SJC's determination that

the trial judge did not err in refusing to give the jury the lesser

included offense instruction.

3

We reach a similar conclusion with respect to the

petitioner's argument regarding the trial court's failure to

provide a humane practice instruction. At trial, the petitioner

requested such an instruction. See id. at 666. Although conceding

that he "didn't raise [voluntariness] as an issue in the trial,"

the petitioner argued that he did not do so specifically because

he believed that the video of his interrogation — in which he

implicated himself in the crime — "spoke for itself, and [he]

didn't need to ask more questions about it." Id. at 667

(alterations in original). The trial judge declined this request,

- 44 - finding that the petitioner "chose not to make the voluntariness

of [his] statement[] a live issue at trial." Id. at 666.

The SJC affirmed this decision. "[T]he settled law in

the Commonwealth is that 'if the voluntariness of the defendant's

statements remains a live issue at trial, the judge must submit

the issue of voluntariness to the jury.'" Id. at 668 (quoting

Commonwealth v. Sunahara,

(2010)). But "[t]o

be considered a live issue, 'substantial evidence of

involuntariness [must be] produced.'"

(second alteration in

original) (quoting Commonwealth v. Kirwan,

(2007)). Here, however, "the issue of voluntariness was

insufficiently raised to require the judge to give a humane

practice instruction."

In support, the SJC noted that the

petitioner not only conceded that he did not raise voluntariness

as an issue but also employed a theory of defense — that he neither

participated in the victim's murder or robbery nor that he had the

requisite intent — that "did not require a humane practice

instruction" given that "his argument to the jury was that his

interrogation statements were evidence that he was not culpable

for the murder." Id. at 669.

The petitioner argues that the SJC's decision denied him

his "right to due process secured by the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution and

- 45 - violated Supreme Court precedent" and was based on an unreasonable

determination of the facts. Not so.

In support of his first claim, the petitioner again

relies on Mathews,

. Yet — as explained above —

Mathews does not constitute clearly established federal precedent

outside the context of entrapment. And to the extent that the

petitioner argues that the failure to give a humane practice

instruction constituted an independent due process violation, his

argument falls flat. As the SJC explained, such an instruction is

required (as a matter of state law) only "if the voluntariness of

the defendant's statements remains a live issue at trial" and

"'substantial evidence' of involuntariness was produced."

Gallett,

(quoting Kirwan,

). Since

the SJC reasonably concluded that the facts of the case did not

render voluntariness a live issue, we have little difficulty in

concluding that its determination regarding the refusal to grant

a humane practice instruction was not unreasonable. And given

that the facts amply demonstrate that voluntariness was not a live

issue, we conclude that the SJC's decision was not based on an

unreasonable determination of the facts.

To sum up, we hold that none of the SJC's rulings

concerning the petitioner's claims of instructional error

constitute grounds for federal habeas relief.

- 46 - E

The petitioner's final plaint stems from the trial

court's statement to the jury on September 11, 2014, in which it

acknowledged the anniversary of September 11, 2001. Before the

SJC, the petitioner argued that the trial court's statement

prejudiced him. The SJC demurred, finding no prejudicial error.

See id. at 664. In this court, the petitioner asserts that the

SJC's decision was contrary to and an unreasonable application of

clearly established federal precedent.

As the SJC observed, the trial judge addressed the jury

to acknowledge the anniversary of September 11, 2001. See id.

The judge told the jury that, on September 11, 2001, she had

presided over a trial and was forced to evacuate the courthouse

that day. Still, she was moved when the jurors in the 2001 case

"all voted unanimously to come back the very next day." Id. After

relaying this story to the jury she had empaneled, the judge

stated,

I just wanted to share that story with you because I'm sure you'll appreciate you're part of the government here, and the government did go on and has continued to go on and you are the government here. So I wanted to share that story with you and hope you further appreciate your vital role in our justice system here in the Commonwealth of Massachusetts and the United States of America.

Id.

- 47 - In finding that this statement did not prejudice the

petitioner, the SJC explained that, although it was "mindful that

the 'effect on the jury of whatever a judge says or does may be

significant,'" id. (quoting Commonwealth v. Fitzgerald,

(1980)), in this instance there was no prejudice because

"the judge's remarks were made to emphasize the importance of jury

duty. Her reference that the jury were part of the government was

cursory and nonprejudicial."

The SJC added that "because the

judge's remarks were neither intemperate nor critical of the

attorneys, there was no danger that the judge exhibited to the

jury a bias against the defendant."

(quoting Commonwealth v.

Mello,

(1995)).

The petitioner complains that the SJC's holding violated

his due process and fair trial rights, including his right to a

fair trial. In support, he cites to Gray v. Mississippi,

(1987), asserting that Gray establishes that "an impartial

jury is so basic to a fair trial that its infraction can never be

treated as harmless."

This complaint lacks force. Although the Gray Court

recognized that the right to an "impartial adjudicator, be it judge

or jury," is "'so basic to a fair trial that [its] infraction can

never be treated as harmless error,'" the facts of that case render

it inapposite here.

at 668 (quoting Chapman v. California,

(1967)). Gray concerned whether the impermissible

- 48 - exclusion of a prospective juror in a capital case could be subject

to harmless error review. See id. at 651. Because nothing

resembling such an issue arises in the case at hand, we find Gray

to be of little relevance. On the facts here, we hold that the

SJC reasonably concluded that the judge's remarks — when read in

context — were merely intended to emphasize the importance of jury

duty. Consequently, the SJC was not unreasonable when it held

that the trial court's remark "was cursory and nonprejudicial."

Gallett,

.

III

We need go no further. We hold that the SJC's decision

affirming the petitioner's conviction was neither contrary to

clearly established federal law nor did it involve an unreasonable

application of clearly established federal law. Similarly, we

hold that the SJC's decision did not result in a decision that was

based on an unreasonable determination of the facts in light of

the evidence presented at the trial court. It follows that the

district court did not err in declining to issue a writ of habeas

corpus.

- 49 - For the reasons elucidated above, the judgment of the

district court is

Affirmed.

—Dissenting Opinion Follows—

- 50 - BARRON, Chief Judge, concurring in part and dissenting

in part. Michel St. Jean is serving a life sentence in a

Massachusetts state prison for his state law convictions for felony

murder and murder in the first-degree by reason of extreme atrocity

or cruelty. He petitions for federal habeas relief based, in part,

on the use of a confession by his co-defendant, Alexander Gallett,

at his Massachusetts state court criminal trial on the underlying

charges.6 St. Jean contends that under Bruton v. United States,

(1968), and precedents applying it, his federal

constitutional right as a criminal defendant to "be confronted

with the witnesses against him," U.S. Const. amend. VI, was

violated by the Commonwealth's use of Gallett's confession at

trial. The Supreme Judicial Court of Massachusetts (SJC) held

that there was no Sixth Amendment violation. See Commonwealth v.

Gallett,

(Mass. 2019).

The majority agrees with St. Jean, as do I, that, because

of the reasons that the SJC gave for its Sixth Amendment ruling,

we need not defer to it. The majority also agrees with St. Jean,

as do I, that, reviewing de novo, the Commonwealth's use of

Gallett's confession at St. Jean's criminal trial violated the

Sixth Amendment because, by providing an eyewitness narration of

St. Jean's conduct on the night of the crimes, it inculpated him

6 St. Jean also seeks habeas relief on other grounds, that, like the majority, I conclude are without merit.

- 51 - directly in the charged offenses. The majority nonetheless

declines to grant St. Jean's petition, because the majority

concludes that under Brecht v. Abrahamson,

(1993),

St. Jean did not suffer the kind of prejudice from the Sixth

Amendment violation that would entitle him to habeas relief. I

cannot agree.

As I will explain, in light of the defense theory that

St. Jean pressed at his trial, the record fails to reveal a strong

enough case against him to remove "grave doubt" that Gallett's

statement influenced the jury's decision to render a guilty

verdict. Foxworth v. St. Amand,

(1st Cir. 2009)

(quoting O'Neal v. McAninch,

(1995)). Indeed,

the record shows that, after the close of evidence, the

Commonwealth made the case to the trial judge that a jury could

find a fact that was plainly critical to the prosecution -- namely,

that at all the relevant times St. Jean had possession of a

knife -- by invoking the eyewitness account that Gallett gave in

his confession rather than the wholly circumstantial body of

evidence that the majority considers so compelling. I would

therefore grant the petition and so, respectfully, dissent, as I

see no basis for our confidently discounting the influence of the

confession in conducting federal habeas review when the

Commonwealth itself had deemed that statement a difference-maker

in state court.

- 52 - I.

I begin by briefly recapping what happened in the

Massachusetts courts. I then explain why we must proceed on the

understanding that the use of the Gallett statement at trial

violated St. Jean's Sixth Amendment confrontation right,

notwithstanding the SJC's contrary ruling. Finally, I explain why

Brecht is satisfied.

A.

The Commonwealth potentially had a powerful card to play

in its case against Gallett: the confession he gave to police that

he had robbed and stabbed Richel Nova. Gallett did more than

describe his own conduct in giving the police his confession to

those crimes, however. He also described what his accomplices had

done in relation to them. And, in doing so, he thereby also

incriminated St. Jean as well as a third person, Yamiley Mathurin.

As a result, the confession posed a potential problem

for the Commonwealth under Bruton, because the Commonwealth was

planning to try St. Jean and Mathurin alongside Gallett on the

theory that all three had participated in the crimes that,

ultimately, resulted in Nova's death. After all, in Bruton, the

Supreme Court held that a defendant is deprived of the Sixth

Amendment confrontation right when "the powerfully incriminating

extrajudicial statements of a codefendant, who stands accused

side-by-side with the defendant, are deliberately spread before

- 53 - the jury in a joint trial" and the "alleged accomplice . . . does

not testify and cannot be tested by cross-examination."

. Indeed, in such cases, Bruton held, even limiting

instructions cannot mitigate the Sixth Amendment problem.

. The Court explained that although we generally assume jurors

follow a trial judge's instructions not to consider certain

evidence, "the risk that a jury will not, or cannot, follow

instructions is so great, and the consequences of failure so vital

to the defendant" when it comes to the untested accusations of a

co-defendant, "that the practical and human limitations of the

jury system cannot be ignored."

.

The Commonwealth proposed to the trial judge what

appears to have been a workaround. Rather than provide the jury

with Gallett's statement as-is, the Commonwealth would remove from

it all references to St. Jean and Mathurin, including in some

instances by redacting a single word where a reference to St. Jean

otherwise would have appeared.

The trial judge permitted the use of the sanitized

version of the statement and that was how it appeared when

introduced at trial. Even in its cleaned up form, however, the

statement referred to at least one -- now unnamed -- accomplice

and placed that accomplice with Nova in the room where Nova was

found dead; described the accomplice cleaning a knife after the

stabbing and cleaning "all the blood"; described the accomplice

- 54 - leaving the house with Gallett when they were "done"; and described

the accomplice taking Nova's car, driving it away, cleaning it

out, and then abandoning it.

Moreover, by that time, Mathurin had pleaded guilty to

certain charges related to the alleged events. That left only

Gallett and St. Jean to be tried together, with the Commonwealth

contending at their joint trial that the two were joint venturers

who each had stabbed Nova.7

Accordingly, on direct appeal, St. Jean raised a Sixth

Amendment claim under Bruton and Gray v. Maryland,

(1998), arguing that the blanks that appeared in the cleaned-up

version of Gallett's confession were as good as references to St.

Jean by name. The SJC did not agree. It rejected the challenge

on the ground that, as revised, the statement did not "'facially'

incriminat[e]" St. Jean and, for that reason, posed no

constitutional concern. Gallett,

(quoting Gray,

). This was so, the SJC explained, because, as

Mathurin had also been involved in the events that pertained to

the charged crimes, the jury would not necessarily have understood

the statement's various blank spaces to refer specifically to St.

7 In laying out its joint venture theory at trial, there was no contention by the Commonwealth that anyone other than Gallett and St. Jean had been involved in the stabbing.

- 55 - Jean, even though, by the time of the trial, Mathurin was no longer

a co-defendant; only Gallett and St. Jean were. Id. at 660-61.

St. Jean then filed this habeas petition in the United

States District Court for the District of Massachusetts. Because

St. Jean's petition follows an adjudication by Massachusetts's

highest court, relief is only proper, given the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-

132,

(codified as amended in

), if

the state-court determination of St. Jean's Sixth Amendment claim

was "'contrary to,' or . . . involved, 'an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States.'" Foxworth,

(quoting

(d)(1)). In rejecting St. Jean's

Sixth Amendment claim, the District Court concluded that the SJC's

ruling was "both reasonable and consistent with Bruton."

B.

I cannot agree that the SJC's ruling reasonably applied

the controlling precedents of the Supreme Court of the United

States, given the Supreme Court's post-Bruton decision in Gray v.

Maryland,

(1998). There, the Court addressed the

admission at a joint criminal trial of a redacted confession by

one of the co-defendants, Anthony Bell.

. In the course

of giving his confession, Bell had answered the question posed by

law enforcement, "Who was in the group that beat Stacey[?]" with

- 56 - the phrase (as it appeared to the jury), "Me, , and a few other

guys."

. The police witness who introduced Bell's

confession at the joint trial read out Bell's answer as "Me,

deleted, deleted, and a few other guys."

. The other

defendant being tried along with Bell, Kevin Gray, contended that

his Sixth Amendment right to confrontation under Bruton had been

violated by the state's use of Bell's redacted statement at the

joint trial with him.

. The Supreme Court agreed with

Gray.

The Court acknowledged that an earlier case had placed

outside of Bruton's scope statements of a co-defendant that merely

incriminate the non-confessing defendant "inferentially."

at

195 (citing Richardson v. Marsh,

(1987)). But

the Court explained that "inference pure and simple cannot make

the critical difference"; rather, the application of Bruton

"depend[s] in significant part upon the kind of, not the simple

fact of, inference." Id. at 196 (emphasis in original). The Court

went on to hold that that statements of a co-defendant that are

redacted to "replace a proper name with an obvious blank, the word

'delete,' a symbol, or similarly notify the jury that a name has

been deleted" are, "as a class," so similar to Bruton's unredacted

confession that they "warrant the same legal results." Id. at

195.

- 57 - Notably, Gray acknowledged that "in some instances the

person to whom [a] blank refers may not be clear" -- for instance,

when the "trial indicates that there are more participants [in the

crime] than the confession has named." Id. at 194-95. But, the

Court reasoned, the fact that an "obvious blank" may refer to one

of multiple people does not alter the underlying risk that a jury

will "realize that the [redacted] confession refers specifically

to the defendant" and will consider it against him. Id. at 193,

195. Faced with a confession that "obviously refers directly to

someone," the Court observed, a juror "need only lift his eyes to

[the defendant], sitting at counsel table, to find what will seem

the obvious answer" as to the identity of the redacted referent.

Id. at 193, 196.

Based on Gray, I am convinced that the SJC unreasonably

applied controlling and clearly established Supreme Court

precedent. See Harrington v. Richter,

(2011).

The SJC concluded that there was no Sixth Amendment violation

solely because, in its view, the "blank spaces in the

transcript . . . easily could have been references to Mathurin"

and it therefore "would not have been obvious to the jury" that

the blank spaces referred to St. Jean. Gallett,

. But Gray was unequivocal in stating that, "as a class,"

confessions that replace a name with an "obvious blank" fall within

- 58 - Bruton's scope, and so violate the Sixth Amendment, even if it is

not "transparent" to whom the blank refers.8 523 U.S. at 195.

This clear holding easily reaches Gallett's redacted

confession, which likewise replaced references to a named

accomplice with "obvious blank[s]."9 Id. It thus clearly follows

that Mathurin's role in the events that led to Nova's death does

not make the use of Gallett's statement at St. Jean's trial

compatible with the Sixth Amendment.10 To the contrary, for a

8 In providing an illustration of how redacted statements might still obviously refer to the defendant, the Court in Gray gave as an example a straightforward confession naming a single accomplice. The Court explained that, in those circumstances, a "sophisticated juror" might wonder how the statement could refer to anyone but the defendant, if the prosecutor has been arguing that the statement is reliable, and that the defendant, "not someone else, helped [the co-defendant] commit the crime." 523 U.S. at 193. It would misread the clear import of Gray, however, to conclude from this example that a statement falls outside Bruton's scope whenever "someone else" -- other than the defendant -- is also implicated in the crime. This is clear from the face of the decision, which was unambiguous in holding that an "obvious[ly]" redacted statement is barred by Bruton even when "trial indicates that there are more participants [in the crime] than the confession has named." Id. at 195. 9 The audio-visual recording of Gallett's confession is not in the record before us, so I cannot determine whether the deletions in the recording were obvious. However, the written transcript that was handed to the jurors in binders "simply replaced the nonconfessing defendant's name with . . . an obvious blank." Gray,

. So, although the transcript itself was not evidence, "a nonadmissible declaration cannot be wiped from the brains of the jurors" and can still violate a defendant's Sixth Amendment rights. Bruton,

(quoting Delli Paoli v. United States,

(1957) (Frankfurter, J., dissenting)). 10That different blanks throughout Gallett's statement might, in fact, have variably referred to both St. Jean and Mathurin

- 59 - juror left wondering who the deletions referred to, St. Jean

remained the most "obvious answer."11 Id. at 193. As St. Jean

explains, Mathurin was not herself on trial, her name appeared

unredacted in the transcript of his police interview, and the

government's own theory of the case was that St. Jean, and not

Mathurin, participated with Gallett in Nova's slaying.

Although we cannot defer to the SJC's ruling, we still

must decide, reviewing de novo, whether St. Jean's Sixth Amendment

claim has merit. Lynch v. Ficco,

(1st Cir. 2006).

It is clear to me that, under Gray, the claim does.

likewise does not suffice to take Gallett's statements outside Bruton's ambit. Gray, after all, contemplated the same legal result obtaining even when a confession "uses two (or more) blanks, even though only one other defendant appears at trial." 523 U.S. at 195. For that matter, redactions in cases like this one can exacerbate the Bruton problem by "encouraging the jury to speculate about the [redacted] reference," and thereby "overemphasiz[ing] the importance of the confession's accusation." Id. at 193. 11 Because the SJC unreasonably determined that, under Gray, a jury would not have concluded that the blanks in Gallett's statement referred to St. Jean, it reasoned that the statement therefore only "implicate[d] [St. Jean] circumstantially when combined with other evidence" that "place[d] him at the scene of the crime." Commonwealth v. Gallett,

(Mass. 2019). As I have explained, however, Gray precludes the conclusion that an obviously redacted confession is not "directly accusatory" of the defendant just because it is redacted. 523 U.S. at 194. And this case is not one in which the statement "omit[ted] all indication that anyone [else]" had "participated in the crime," and so could not incriminate the defendant absent other evidence in the case. Id. at 191 (quoting Richardson v. Marsh,

(1987)) (emphasis in original).

- 60 - There cannot be any question that Gallett's redacted

statement was inculpatory if understood to refer to St. Jean.12

See Gallett,

. That being so, Gray requires

the conclusion that the use of the statement violated St. Jean's

Sixth Amendment confrontation right.

C.

I turn, then, to the final step in the analysis, which

concerns whether the Sixth Amendment violation caused St. Jean

"actual prejudice." Brecht,

(quoting United States

v. Lane,

(1986)). I conclude that the violation

did.

We have often noted that Bruton proscribes the use of a co- 12

defendant's confession when that confession "powerfully incriminat[es]" the defendant. See, e.g., United States v. Rodriguez-Duran,

(1st Cir. 2007) (citation omitted); Foxworth v. St. Amand,

(1st Cir. 2009) (citation omitted). Neither this Court, nor the Supreme Court, however, has ever treated as a distinct requirement that a statement that otherwise "directly implicate[s]" the defendant do so powerfully. See Samia v. United States,

(2023) (noting that Bruton cases distinguish between "confessions that directly implicate a defendant and those that do so indirectly"). To the contrary, Bruton and its progeny rest on the assumption that a co-defendant's accusation is, by its nature, powerfully incriminating. See Gray,

. I therefore do not understand our precedent to require an additional inquiry into just how incriminating a confession is when it is sufficiently clear from the face of the confession that it refers to the defendant and that it implicates him in criminal activity. See United States v. Vega Molina,

(1st Cir. 2005) (a statement is "powerfully incriminating" when it is "inculpatory on its face").

- 61 - 1.

The Brecht prejudice standard is demanding. It requires

that the federal constitutional violation "had a substantial and

injurious effect or influence in determining the jury's verdict."

at 623 (quoting Kotteakos v. United States,

(1946)).

At the same time, the focus under Brecht is not on

whether the jury was "right in their judgment," but on "what effect

the error had or reasonably may be taken to have had upon the

jury's decision." Kotteakos,

; see also Sinnott v.

Duval,

(1st Cir. 1998) (explaining that Brecht,

, adopted the harmless error standard from

Kotteakos,

). In applying Brecht, therefore, we

must keep in mind that we are not evaluating the record to see if

the evidence suffices to uphold the convictions, which is a task

that requires us to review the evidence "in the light most

flattering to the prosecution" while making "all reasonable

inferences favorable to it[s] [case]." Leftwich v. Maloney,

(1st Cir. 2008) (quoting United States v. Olbres,

(1st Cir. 1995)). Instead, under Brecht, we are

assessing whether "the properly admitted evidence [was] so strong

that it overwhelmed the impact of the erroneously admitted

evidence." Levasseur v. Pepe,

(1st Cir. 1995)

(emphasis added). For that reason, we must take care not to view

- 62 - the prosecution's evidence in isolation. We instead must consider

the strength of it in relation to the defense that the defendant

offered.

Moreover, Brecht requires only that there be a

"probability" that the offending evidence influenced the verdict,

Sinnott,

(quoting Gilday v. Callahan,

(1st Cir. 1995)), and that probability can exist even if it is

not "more likely than not" that the evidence at issue altered the

outcome of the trial. See Kyles v. Whitley,

(1995). Put otherwise, relief may not be denied "simply because

[the] reviewing court fe[els] that [the] petitioner 'would have

been convicted even if the constitutional error had not taken

place.'" Sinnott,

(quoting Brecht,

(Stevens, J., concurring)); see also Kotteakos,

(explaining that an error can be prejudicial even if the remaining

evidence is "enough to support" a conviction). The habeas court

must have "the conviction . . . that the error did not influence

the jury, or had but very slight effect." Sinnott,

(emphasis added) (quoting Kotteakos,

); see also

Kotteakos,

(an error is prejudicial if "one cannot

say, with fair assurance," that it did not have a "substantial

influence" on the judgment). If there is "grave doubt" as to

whether there was such influence, moreover, Brecht is satisfied.

Foxworth,

(quoting McAninch,

).

- 63 - 2.

The majority concludes that the Brecht standard has not

been met here because there was a "substantial amount of other

evidence in the record" that "linked [St. Jean] to the knife and

the murder." The majority concludes that, in consequence, the

jury would "in all probability have reached the same verdict" even

absent the offending evidence. In fact, the majority suggests,

only the most "gullible" of juries would have been given pause by

St. Jean's defense. But, while the evidence the majority describes

may be enough to show that there was sufficient evidence to warrant

a conviction of the charged offenses, I do not see how that

evidence was "overwhelm[ing]" enough to relieve us of "grave doubt"

as to whether Gallett's statement influenced the jury, when we

consider that evidence in light of St. Jean's defense. Levasseur,

; Foxworth,

(quoting McAninch,

).

a.

True, as the majority points out, the record shows that

there was some of the victim's blood on St. Jean's clothes. But,

given the charges against St. Jean and the Commonwealth's theory

of his guilt, this evidence on its own hardly makes an overwhelming

case for the prosecution.

The Commonwealth's theory of St. Jean's guilt was, in

significant part, that, in addition to Gallett, St. Jean himself

- 64 - had stabbed Nova. The Commonwealth even framed its closing

argument around that theory of St. Jean's guilt. St. Jean,

however, in articulating his defense, did not dispute that he had

been at the house where the slaying occurred. And the

Commonwealth's own witness testified to the presence of blood

throughout that apartment. See Levasseur,

(evaluating prejudice through "comparing the prosecution's case to

[the asserted] defense" (emphasis added)). Thus, while the blood

evidence certainly tied St. Jean to the scene of the stabbing, it

did not thereby contradict the theory of what had transpired that

St. Jean was pressing.

The majority also emphasizes that the record shows both

that Nova was stabbed repeatedly and that the knife found at the

scene of the crime was bent and broken. Here, too, the evidence

does little to dispel a grave doubt about the influence of the

Gallett statement on the jury, given the nature of St. Jean's

defense. In countering the Commonwealth's case, St. Jean did not

deny that Gallett had stabbed Nova. It is therefore significant

that the medical examiner testified that he could not say whether

more than one knife had been used or whether there had been more

than one assailant.

The majority points as well to the cuts on St. Jean's

hand that were seen by police soon after the slaying, in addition

to the statements St. Jean made to the emergency room doctor that

- 65 - those injuries were caused by a knife. St. Jean, however, did not

dispute that he had told both the emergency room doctor and his

cousin that he had been injured in a fight in the street. Nor did

St. Jean dispute that he had told the doctor that his injury had

come from a knife. In other words, in asserting in his defense

that there was no evidence that sufficed to show that he had a

knife on the night of the stabbing, St. Jean did not deny saying

what other evidence showed he had said about his hand having been

cut by a knife. Instead, his defense counsel contended only that

St. Jean, understandably, made up an excuse for the injury to his

hand, because he had not wanted to tell the truth -- that he had

cut his hand by breaking glass to enter an abandoned house where

a man was later stabbed to death in his presence.

Consistent with that explanation, St. Jean's defense

proceeded as follows. Although St. Jean initially told police the

same false story that he told his cousin and the emergency room

doctor, he ultimately admitted in that same interview with the

police that he had been at the empty house when the stabbing

occurred and that he had acquired the cuts on his hand from

breaking glass on the backdoor of that house. And, at trial, St.

Jean pointed to evidence in the record that showed that the glass

on the backdoor had been broken.

The jury certainly would have been entitled to discount

the story that St. Jean had been injured in a fight on the street;

- 66 - indeed, not even St. Jean maintains that story was true. The jury

also certainly would have been entitled to disbelieve his story to

the police that the wounds on his hand had come from broken glass

rather than a knife. By then his credibility was certainly open

to question. I thus do not deny that the jury may have been

entitled to find that the cuts must have come from a knife,

notwithstanding St. Jean's alternative account at trial of why he

had them. And, I suppose, as a result, the jury may then even

have been permitted to infer that the knife must have been St.

Jean's and, further, that he must have used that knife to stab

Nova, even though St. Jean was not reported as ever having told

anyone that was the case. But none of these inferences is so

overwhelmingly supported by the evidence -- whether considered

piece by piece or in combination -- that I can be confident the

jury would not have been influenced by a powerfully incriminating

statement from an eyewitness.

The majority does point to Aline Valery's testimony that

she overheard St. Jean on the day of the stabbing say that he was

looking for a "vic" and her additional testimony that St. Jean

always carried a knife. Valery's testimony, however, was "scarcely

unassailable." Foxworth,

. The statement about

St. Jean looking for a "vic" was made in the grand jury proceeding.

At trial, however, Valery recanted and testified that it was

Mathurin not St. Jean who had made that statement to her. And,

- 67 - even if the recantation did not therefore cast doubt about her

testimony more generally, her testimony did not provide

particularly strong evidence that St. Jean had a knife with him

that day. Valery had known him only a few weeks, had seen him on

only a handful of occasions, and in fact testified that she did

not see him with a knife on the day of the stabbing. So, it is

difficult for me to see how we must proceed on the

understanding -- for Brecht purposes -- that the jury credited

this evidence from Valery.

Even if the jury did, though, we are not trying to assess

whether the evidence was sufficient to support the convictions.

We are trying to figure out whether the evidence of the cuts and

the blood and Valery's statements -- when considered in light of

St. Jean's defense -- so strongly supported a finding that St.

Jean personally stabbed Nova that we are left with no "grave doubt"

about the influence on the jury of Gallett's statement identifying

St. Jean as a participant in the crime. I do not see why we would

conclude that the evidence was strong in that sense.

Finally, the majority notes -- correctly -- that the

Commonwealth was proceeding on a joint venture theory, such that

the jury "was not required to pick only one murderer." But, as I

noted above, St. Jean did not dispute that Gallett had stabbed

Nova. His defense was only that he had not participated in the

crimes. And, while it is true that a finding that St. Jean

- 68 - personally participated in the killing was not necessary to find

him guilty on a joint venture theory, only such a finding could

have supported St. Jean's conviction for murder by reason of

extreme atrocity or cruelty. And the theory that St. Jean was one

of the individuals who stabbed Nova was also the Commonwealth's

lead theory of the case and the only theory of guilt as to St.

Jean for which the SJC found sufficient evidence. See Gallett,

. Nor was there a special verdict form. So, I

do not see how the fact that the joint venture theory was available

to the jury shows that the Gallett statement had no influence on

the jury's assessment of St. Jean's guilt.

This case, then, is not one in which, as in Sinnott, the

"relative strength of the properly admitted evidence of guilt"

weighs in favor of finding that the Brecht standard is not met.

(quoting Levasseur,

). In denying

habeas relief from a Bruton error there, we concluded that the

prosecution's case was "impressively cogent." Id. at 20. We

explained that multiple eyewitnesses had provided testimony on the

"core" issue of defendant's guilt that was "remarkably consistent

and corroborative," and that, together with a pathologist's

testimony "present[ed] a cohesive, consistent picture" of the

defendant's involvement in the charged assault. Id. at 19. By

contrast, we explained, the defendant's "[un]impressive" defense

comprised entirely of the -- questionable -- claim that all the

- 69 - eyewitnesses were intoxicated and that their testimony was

therefore unreliable. Id. at 19-20.

In this case, the record is very different. There was

no eyewitness testimony about St. Jean's participation in the crime

at all -- save, of course, for the testimony from Gallett himself.

The entirety of the Commonwealth's case, therefore, depended on

the jury drawing inferences from circumstances that certainly

placed St. Jean in the house where Nova was killed but did not in

any direct way identify St. Jean as someone who had stabbed Nova.

In addition, St. Jean had an explanation for all the circumstantial

evidence against him that, although far from airtight, was itself

coherent and therefore capable of being credited. There was in

fact evidence of broken glass at the backdoor to the Hyde Park

house; Gallett likewise told police that they had entered the house

by breaking glass; and St. Jean raised some question as to whether

the cuts on his hand were consistent with him having acquired them

from using a knife, as the Commonwealth alleged. Nor is it

incredible that a person at the scene of a crime would be reluctant

to disclose facts that would place him there.

b.

It is against this backdrop, that we must evaluate the

impact of Gallett's statement for purposes of Brecht. Critically,

we must, given Gray, treat the statement as having done the very

thing that none of the Commonwealth's other evidence did: provide

- 70 - a blow-by-blow eyewitness account of St. Jean's conduct before,

during, and after the slaying. And that account hardly undermined

the Commonwealth's theory of St. Jean's guilt. It powerfully

supported it by placing St. Jean with Nova in the room where Nova

was found dead, before he was dead; indicating that St. Jean had

a knife at the time; and describing St. Jean, after Nova's

stabbing, cleaning a knife and "cleaning all the blood."

In concluding that Gallett's statement was important to

the Commonwealth's case against St. Jean, notwithstanding the

circumstantial evidence described above, I emphasize that I am not

relying solely on my own necessarily somewhat removed assessment

of the statement's impact on the jury. Nor am I positing a jury

that was unusually susceptible to being swayed by St. Jean and so,

for that reason, willing to reject an objectively overwhelming

circumstantial case against him. My assessment of the Gallett

statement's influence on the jury merely parrots the

assessment -- unmentioned by the majority -- that the Commonwealth

itself advanced in state court in seeking to explain why the case

it had just made to the jury sufficed to support the charges St.

Jeans faced.

In that regard, I note that, after the close of evidence,

the Commonwealth opposed St. Jean's motion for a required finding

of not guilty as to principal liability because of what it

contended that the record showed regarding St. Jean's having had

- 71 - a knife that was used in Nova's stabbing. Tellingly, though, in

doing so, the Commonwealth did not rely on the evidence in the

record that the majority describes as being so substantial that

"in all probability" it would have influenced any rational jury to

find that St. Jean was involved in Nova's stabbing. Instead, the

Commonwealth chose to rely on what the majority treats as the

beside-the-point statement from Gallett, as the Commonwealth

argued that "there [was] evidence, based on Mr. Gallett's

[confession], that Mr. St. Jean had that knife . . . and was

involved at some point in stabbing Mr. Nova" (emphasis added).

Given that the Commonwealth itself appears to have been

of the view that Gallett's statement provided the difference-

making evidentiary support for a finding that St. Jean had a knife

at the time of the attack, it is hard for me to see how we can say

with confidence that the statement's introduction to the jury had

no influence on it. All the charges against St. Jean would have

been impacted by a finding that he had a knife at the time. So,

a statement that the Commonwealth itself thought sealed the deal

in showing that St. Jean had such a weapon would seem hard to

discount.

This, then, is not a case -- if the Commonwealth itself

is to be believed -- where I can see a basis for having confidence

that the Bruton error added "little" to "nothing" to other

accounts. Sinnott,

. Nor is it a case where the

- 72 - challenged confession -- here, Gallett's statement -- was

"inherently implausible" or "contradicted" other substantial

evidence.13

To the contrary, because the other evidence in

the case was at least susceptible to multiple

interpretations -- including St. Jean's -- Gallett's narration

indisputably went to "central" issues in the Commonwealth's case

against St. Jean. See

. By providing the jury with the

only firsthand account of what happened inside the Hyde Park house

and the events that led to Nova's death, the statement from Gallett

provided a powerful and coherent narrative that explained the

otherwise circumstantial proof of St. Jean's guilt. No doubt,

that is why the Commonwealth thought to rely on it to fend off St.

Jean's sufficiency challenge.

3.

Even without Gallett's statement, the jury might have

disbelieved St. Jean's account and credited the inferences that

the Commonwealth urged it to make. My concern, though, is that

Gallett's statement was influential precisely because it

13I cannot agree with the majority's conclusion that the impact of Gallett's statement must be discounted because it likely would have "fared poorly in the jury's minds." Sinnott v. Duval,

(1st Cir. 1998). To the contrary, both the Commonwealth and Gallett's attorney encouraged the jury to rely on Gallett's statement -- the Commonwealth for the very evidence the majority suggests is unreliable. In any event, unlike in Sinnott, Gallett's statement was consistent with the remaining evidence and there was no real suggestion that it had been "fabricate[d]."

- 73 - inculpated St. Jean so directly in a case resting otherwise

entirely on circumstantial evidence. Adding to that concern is

the fact that the statement was introduced to the jury at the end

of the trial. As such, it arguably would have had the powerful

effect of tying together and explaining all the previous evidence.

Indeed, as the last piece of evidence, it provided the jury's final

impression before closing arguments and deliberations. Cf.

Sinnott,

(considering "the extent to which the

error permeated the proceeding" (quoting Levasseur,

)).

I do recognize that assessments under Brecht are

necessarily fact specific. I am not aware, however, of any prior

precedent of ours in which we have held that the Brecht standard

was not met in a case analogous to this one. Nor, I note, does

either the majority or the Commonwealth identify one.

II.

Bruton's premise is that there is good reason to think

that a jury, when faced with the "powerfully incriminating

extrajudicial statements of a codefendant," will be unable to

follow the court's instructions to disregard that evidence.

. Gray built on that premise by holding that the

concern Bruton expressed about how a jury will go about its

deliberations is no less true when the co-defendant's statement is

- 74 - revised to substitute obvious blanks in place of references to the

non-confessing defendant. 523 U.S. at 195.

Assuming, then, as I must, that the jury considered

Gallett's confession when deliberating on St. Jean's guilt, I find

it at least "probable" -- in the sense required by Brecht -- that

the statement would have "tipped the balance" against St. Jean,

Foxworth,

, regardless of whether it is more likely

than not that it altered the outcome at trial, Kyles,

. At the very least, I entertain "grave doubt" about whether

the statement had such an influence. Foxworth,

(quoting McAninch,

). And, because I lack the

requisite confidence that the Bruton error "did not influence the

jury, or had but very slight effect," Sinnott,

(quoting Kotteakos,

), I conclude that the Brecht

standard has been met. I thus would hold, contrary to the

majority, that a writ of habeas corpus must issue, and so I

respectfully dissent from the decision to deny the writ.

- 75 -