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Forte v. Medeiros

United States District Court, D. Massachusetts

March 9, 2017

MICHAEL FORTE, Petitioner,
v.
SUPERINTENDENT, SEAN MEDEIROS, MCI-NORFOLK, Respondent.

          MEMORANDUM OF DECISION AND ORDER

          TIMOTHY S. HILLMAN, TIMOTHY HILLMAN DISTRICT JUDGE

         Background

         Michael Forte (“Forte” or “Petitioner”) has filed a Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody (Docket No. 6)(“Petition”) against Sean Medeiros, Superintendent, MCI-Norfolk, Norfolk, MA (“Respondent”). Petitioner was convicted in Massachusetts Superior Court of murder in the first degree on the theory of extreme atrocity or cruelty and sentenced to life in prison. The Supreme Judicial Court of Massachusetts (“SJC”) affirmed his conviction on January 10, 2014. On December 8, 2014, he filed his Petition in which he asserts the following three grounds for relief:

Ground One: The trial court deprived of his Sixth Amendment Right to compulsory process by refusing to allow him to recall the two percipient witnesses in his case-in-chief.
Ground Two: The trial court deprived him of his Fourteenth Amendment Right to present a complete defense by delaying access to review of a surveillance video, by refusing to allow the defense to examine two identification witnesses, and because there was no direct physical evidence he had committed the murder.
Ground Three: The trial court deprived him of his Fourteenth Amendment Right to a fair trial by allowing the admission of tainted material evidence.

         Forte has exhausted state-court remedies with respect to all of the grounds for relief asserted in his Petition. For the following reasons, the Petition is denied.

         Facts[1]

         The Underlying Crime

         At approximately 3 a.m. on July 27, 2008, Ivette Torres (“Torres”) and her cousin, Jariely Vazquez (“Vazquez”), who were both eighteen years of age at the time, left Torres's house on Howard Street in Springfield, Massachusetts in order to get something to eat. They walked to Main Street, and turned left onto Main Street to head toward the Crown Fried Chicken restaurant, located on the northwest corner of State and Main Streets. As they walked along the west side of Main Street, they passed the victim, Steven Donoghue, a local homeless man who was resting in the alcove of Chapin's Furniture Store at the intersection of Main and Bliss Streets. The women exchanged greetings with the victim, whom they had seen before in the neighborhood, and continued onward. Shortly thereafter, the women noticed a man coming toward them from in front of the restaurant. As the man approached, he shouted at the women angrily, calling them “bitches and sluts.” The women had almost reached the corner of State and Main Streets when they decided to cross Main Street because they were afraid of the approaching man. They observed that the man continued to walk south along the west side of Main Street, toward where they had seen the victim.

         When the women reached the United Bank on the northeast corner of State and Main Streets, they looked across the intersection and saw that the restaurant was closed. They turned back to return to Howard Street and noticed the man who had been shouting at them washing his hands in a puddle “next” to where they had seen the victim. When they heard an automobile horn, the women turned away, and when they looked back the man was gone. The women walked south on Main Street, back in the direction from which they came, and crossed Main Street near Bliss Street. When they approached the alcove where they had seen the victim resting, they saw that his throat had been slit and he was covered in blood. Torres attempted to dial 911 from her cellular telephone but the battery had died, and the women continued south on Main Street until they were able to stop a passing motor vehicle and contact the police. From the time they left Torres's apartment to the time they sought assistance in calling the police, the women did not see anyone else on Main Street other than the victim and the man who had shouted at them.

         The women initially described the man they had seen to the police as “a white male ... wearing a black T-shirt [and] tan pants, ” in his forties, “with a pot belly but not really fat or built.” They described his hair as “bushy, blond, possibly whitish” or gray, and “scruffy.” Both women observed that the man had white lettering on the front and back of his shirt and that he was walking strangely. An officer broadcast a description of the perpetrator as approximately forty to fifty years of age, with “kind of bushy, shoulder-length, blondish-gray hair, wearing a black T-shirt and tan pants.” The women went to the police station and were shown many photographs of men from the police data base who were between forty and fifty years old; they did not recognize any of them. At around 6 a.m., a police detective was returning to the station from the scene when he saw the Forte leaving a small park wearing a black T-shirt and tan pants. The officer observed that Forte's clothing was wet and his shirt was inside out, and that he fit the general description of the potential perpetrator. The detective stopped, asked to speak to Forte, and conducted a pat-down to ensure he had no weapons. The detective then informed the police dispatch that he had found an individual who fit the description of the perpetrator.

         Shortly thereafter, another detective brought Torres and Vazquez to the area. The detective instructed only Torres to step out of the police cruiser and look at the man. She understood that she was being asked to determine whether it was the man she had seen three hours prior. She later reported that she did not feel rushed. Torres told the detective and Vazquez that, although the man had similar clothing, he was not the man she had seen.[2] Afterward, the women returned to the station to look at more photographs, but could not identify anyone as the perpetrator. On July 28, the police acquired footage from the surveillance videotapes at MassMutual Center (“MassMutual”), located at the northeast corner of State and Main Streets, and from the restaurant. The MassMutual footage from around the time of the murder shows a silhouette walking south on the west side of Main Street, crossing in front of the restaurant, wearing a dark top and lighter pants. The restaurant videotape, which provides a clearer image, depicts an individual, walking south on Main Street, who the police determined fit the description provided by the two women. Two officers familiar with Forte, who had each seen him within the last two days, recognized him as the man in the restaurant videotape. Later that day, the two women returned to the police station, where each woman was shown the restaurant videotape separately and asked if she saw anybody that she did or did not recognize. Both confirmed that the man in the videotape was the man they had seen that night. Torres also indicated that it was the same man she had seen at the show-up the day before, but that she had not recognized him then because his hair had been darker and wet and his shirt was inside out, hiding the white lettering.[3] Immediately after watching the videotape, each woman was shown a photographic array containing eight individual color photographs of men between the ages of forty-eight and fifty-two with other characteristics matching those of Forte. The women were told that the man they had seen may or may not be among the photographs. Each selected Forte as the man she had seen that night and in the videotape.

         Trial Proceedings

         At trial, Torres and Vazquez watched the restaurant videotape and provided in-court identifications of Forte as the man in the videotape and the man they had seen that night. Torres testified that that they passed within fifteen feet of the man and had gotten a fairly good look at him; Vazquez testified that they had gotten within 20 - 35 feet of the man. In addition to the introduction of the restaurant videotape and MassMutual footage at trial, other evidence corroborated the identification of Forte as the man in the videotapes and the man the two women had seen that night. A security officer had seen him in a park near Tower Square at approximately 8:20 p.m. on July 26 and had asked him to leave because he was drinking beer. Surveillance footage of the park admitted at trial revealed a man who closely resembled, both in physical appearance and attire, the man in the restaurant videotape and fit the description the two women had provided. A Springfield police officer also had observed Forte, whom he recognized from a police department homeless initiative, at approximately 11:30 p.m. on July 26 wearing khaki-colored pants and a dark blue or black T-shirt with a white emblem on it. Another individual testified that he had been in the park on the morning of July 27th and had seen Forte there; he had previously seen Forte around and knew that he was homeless. Surveillance footage of the park showed Forte.

         The Commonwealth also introduced evidence of several incidents within the sixteen-hour period preceding the murder to establish that Forte was in a hostile and aggressive state of mind at the time of the murder. On July 26th, at approximately 11 a.m., Forte was discharged from Providence Hospital after he had engaged in disruptive and violent behavior, including turning over the furniture in the television room, throwing a chair into the hallway, shouting obscenities, and threatening to kill people. At approximately 4 p.m. that day, he had caused a disruption in a local supermarket, where he was “looming over” a female customer, shouting in her ear and saying that he wanted to kill her and kill Hispanics, and that he was drug-addicted and was going to start killing people because they made him sick. The store manager, who described Forte as “unstable and dangerous, ” cautiously walked him to the front of the store, where police officers escorted him away. At approximately 8 p.m., Forte appeared on a surveillance videotape in a park near Tower Square, a few blocks from the intersection of State and Main Streets, apparently chasing two other men out of the park, before he was asked to leave by the security officer for drinking beer. Finally, at approximately 11 p.m., Forte went to McCaffrey's Public House, a bar on Main Street just south of State Street, and ordered a beer. As he left, he had an outburst, appearing suddenly angry and shouting that everyone in the bar was “human scum.” Post-Trial Proceedings Forte filed a direct appeal from his conviction to the SJC, raising the following claims for relief: (1) whether the trial judge erred by denying Forte's motion for a required finding of not guilty; (2) whether the late disclosure by the prosecution of access codes needed to view a surveillance video (the MassMutual footage) prevented him from learning its evidentiary value, thus violating his due process rights; (3) whether the prosecution's knowing use of false evidence required a reversal of his conviction; (4) whether the trial judge erred and created a substantial likelihood of a miscarriage of justice by refusing to permit him to call the Commonwealth's identifying witnesses as part of the defense case[4]; (5) whether the trial judge erred by admitting, over objection, Forte's prior bad acts to show his state of mind; and (6) whether the trial judge erred by denying Forte's motions to suppress as unduly suggestive the out-of-court and in-court identifications of him by Torres and Vazquez.

         In affirming Forte's conviction the SJC made the following rulings relevant to the grounds for relief raised in his Petition:

(1) Untimely Disclosure of Access Codes. At trial, Forte objected when the Commonwealth sought to introduce video footage obtained from the MassMutual building. Forte objected on the grounds that he had not had the opportunity to review the footage prior to trial. The Commonwealth represented that the footage about to be shown had been provided to the defense. Forte then withdrew his objection. The footage was shown to the jury without further objection. On appeal, Forte asserted that he had not had sufficient time to review the footage prior to trial and therefore, did not learn of its evidentiary value. He asserted that he had informed the trial court through numerous motions that the Commonwealth had delayed giving him the access codes necessary to review the footage and if he had been able to review it earlier, he could have prepared a more cogent defense. The SJC held that Forte had waived the claim first, by not objecting to the introduction of the footage at trial, and then, by not raising the claim in his motion for new trial. The SJC then reviewed the claim to determine whether there was a substantial likelihood of a miscarriage of justice. Citing both state and federal case law, the SJC noted that the Commonwealth is required to disclose “exculpatory material evidence ‘at such time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case' [and] [w]here such evidence is disclosed belatedly, ‘it is the consequences of the delay that matter, not the likely impact [of the evidence]' ” Forte, 469 Mass. at 486, 14 N.E.3d 900 (citation to quoted case omitted). The SJC held that even if it assumed that there had been a lengthy delay in disclosing the access codes, Forte failed to show how he “‘would have been able to prepare and present [his] case in such a manner as to create a reasonable doubt that would not otherwise have existed'” had the evidence been disclosed in a timely manner. Id. Instead, the SJC found that Forte had ample opportunity to cross-examine witnesses about the MassMutual footage and to incorporate references thereto in his opening and closing statements and therefore, had “failed to show any prejudice, let alone that any delay caused a substantial likelihood of a miscarriage of justice.” Id.
2. Request to Recall Witnesses. Prior to trial, Forte had filed a motion to include Vazquez and Torres on the witness list. The trial judge noted they were already on the witness list; Forte confirmed he understood this. The Commonwealth called both Vazquez and Torres in its case-in-chief. Forte cross-examined both witnesses. Before the defense case started, Forte indicated he wanted to recall Vazquez and Torres in order to introduce their witness statements and to discuss the issue of mistaken identification. The judge found that Forte could have raised these issues during his cross-examination of these witnesses. Forte responded that he thought that his cross-examination was limited to topics raised by the Commonwealth in its direct examination. The judge stated that Forte's cross-examination had gone beyond the scope of the Commonwealth's direct examination and therefore, did not support his alleged reason for recalling the witnesses. The judge further found that Forte had a full and fair opportunity to cross-examine Vazquez and Torres and he would not be given “a second bite at the apple to do that which [he had] already done.” Id., at 487. Forte's request to recall these witnesses was denied, but the judge did allow Forte to introduce their witness statements. The SJC noted that the trial judge had stated that the central issue at trial was identification, that Forte had represented himself with standby counsel and that Forte had engaged in “vigorous cross- and recross-examination with each of the percipient witnesses that was ‘thorough and repetitious'”. Id., 14 N.E.3d 900. The SJC noted that the manner and order of the presentation of evidence and questioning of witnesses is left to the sound discretion of the trial judge, including the determination of whether to allow witnesses to be recalled. Recall of a witness is appropriate where the defendant would be unreasonably deprived of the opportunity to present newly discovered evidence which would be material to his defense. Id., at 488. The SJC found that Forte had not presented any explanation, either in his motion for new trial or on appeal, as to why he could not have questioned Vazquez and Torres about the inconsistencies about the MassMutual footage and related still photographs and their testimony during cross-examination. The SJC agreed with the trial ...

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