United States Court of Appeals

For the First Circuit

No. 13-1483
DAVID G. MAGRAW,
Petitioner, Appellant,
v.
GARY RODEN, SUPERINTENDENT,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.

Jeffrey M. Brandt, with whom Robinson & Brandt, P.S.C. was on

brief, for appellant.
Anne M. Thomas, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, was on brief, for
appellee.

February 14, 2014

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme

Court of the United States, sitting by designation.

SELYA, Circuit Judge.

This is a habeas proceeding

brought by a state prisoner against a Massachusetts correctional

official in an effort to secure relief from a conviction and life
sentence for second-degree murder.

In pursuit of that habeas

relief, he advances three discrete claims of constitutional error.

After thoughtful consideration, the district court rejected these
claims.
I.

So do we.

BACKGROUND
Because the petitioner's asseverational array includes a

challenge to the sufficiency of the evidence, we rehearse the

background facts in the light most flattering to the jury's
verdict.
2009).

See Foxworth v. St. Amand, 570 F.3d 414, 420 (1st Cir.

In the summer of 1990, David and Nancy Magraw were in the

throes of a nasty divorce. The warring spouses and their attorneys

arranged to meet at 2:00 p.m. on July 23, but Nancy Magraw never
arrived.

After

unsuccessfully

attempting

to

ascertain

her

whereabouts, the attorneys and her husband (the petitioner here)

were advised of her death.

They immediately went to her home in

Walpole, Massachusetts and found her badly bruised body on the

living room floor.

The police were already at the scene.

An autopsy determined the cause of death to be mechanical

asphyxiation due to compression of the neck (and perhaps the mouth
and nose).

Following further investigation, a state grand jury

indicted the petitioner for the slaying.

-2-

The petitioner's initial

trial resulted in his conviction for first-degree murder, but that

conviction was set aside on appeal.

See Commonwealth v. Magraw,

690 N.E.2d 400, 401 (Mass. 1998).

At his second trial, the petitioner argued, inter alia,
that the victim had died from natural causes and that, in all
events, he was not her killer. The jury rejected these contentions
and found the petitioner guilty of second-degree murder.
The

petitioner

appealed

Massachusetts Appeals Court (MAC).

unsuccessfully

to

the

See Commonwealth v. Magraw

(Magraw II), No. 99-P-1937, 2003 WL 21955875, at *1 (Mass. App. Ct.

Aug. 15, 2003).

The Massachusetts Supreme Judicial Court denied

his application for leave to seek further appellate review.

See

Commonwealth v. Magraw, 799 N.E.2d 593 (Mass. 2003) (table).

The

petitioner then repaired to the federal district court, seeking a

writ of habeas corpus.

See 28 U.S.C. 2254.

The district court

proved inhospitable to the petitioner's importunings, see Magraw v.

Roden (Magraw III), No. 09-11534, 2013 WL 1213056, at *6 (D. Mass.
Mar. 22, 2013), but issued a certificate of appealability as to
three claims, see 28 U.S.C. 2253(c).
After

limning

the

framework

for

habeas

relief,

consider the petitioner's claims of error sequentially.

-3-

we

II.

THE HABEAS FRAMEWORK

When (as in this case) the district court has not

undertaken independent factfinding, its decision to grant or deny

habeas relief engenders de novo review.
F.3d 61, 68 (1st Cir. 2007).

See Pike v. Guarino, 492

The beacon by which a federal habeas

court must steer is the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Pub. L. No. 104-132, 104, 110 Stat. 1214,
1218-1219, codified at 28 U.S.C. 2254. Where, as here, the state
court has adjudicated a petitioner's federal claims on the merits,
the federal court may issue the writ if the state-court proceedings
"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."

28 U.S.C.

2254(d)(1). Under the AEDPA's unreasonable application standard,

a "state court's decision is not vulnerable unless it evinces some
increment

of

incorrectness

beyond

mere

error."

Leftwich

v.

Maloney, 532 F.3d 20, 23 (1st Cir. 2008); accord McCambridge v.

Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc).
III.

SUFFICIENCY OF THE EVIDENCE

The petitioner's first claim of error posits that the

evidence adduced at his trial was insufficient to support his

conviction for second-degree murder.

In his view, the evidence

failed to establish either that the victim was murdered or that, if

a murder occurred, he was the perpetrator.
-4-

The constitutional standard for evidentiary sufficiency

is familiar.

Under clearly established Supreme Court precedent, a

conviction must be sustained if, "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." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Although this standard exhibits great respect for the jury's
verdict, an inquiring court must nonetheless avoid "evidentiary
interpretations and illations that are unreasonable, insupportable,
or overly speculative." United States v. Spinney, 65 F.3d 231, 234
(1st Cir. 1995).

For present purposes, the question reduces to

whether the MAC unreasonably applied the Jackson standard in

determining that the evidence was sufficient to allow a rational
jury to conclude both that the victim was murdered and that the
petitioner was her killer.
A.

Cause of Death.

We need not linger long over the sufficiency of the

evidence anent the cause of death.

The Commonwealth introduced

considerable evidence that the victim was strangled. This evidence

included the testimony of two medical examiners, one of whom was
the physician who had performed the autopsy.
The autopsy findings bolstered this opinion testimony.
The autopsy showed petechial hemorrhages on the victim's face,
lungs, heart, and inner eyelids.

The physician who performed the

-5-

autopsy explained that these findings were consistent with rupture

upon asphyxiation.

Similarly, the autopsy revealed hemorrhage

around the thyroid cartilage and other tissues in the victim's

neck.

Her inner lips were cut, and her tongue had bite marks.

The

medical witnesses attested that this pattern of injuries was

consistent with strangulation.
This is not to say that the cause-of-death evidence was
completely one-sided.

The petitioner proffered a medical expert

who opined that the victim died of natural causes.

This witness

expressed skepticism about the Commonwealth's theory because the

victim's corpse lacked some common indicia of manual strangulation,
such as bruising in certain neck tissues, suspicious marks on the
outside of the neck, and fractured hyoid and cricoid bones.

This

witness also tried to explain away the petechiae and larynx

hemorrhages.

The capstone of this testimony was the witness's

determination that the victim had suffered from chronic and acute
inflammation of the heart, which he concluded was the probable
cause of her death.
Citing this conflicting evidence, the petitioner reminds
us that when "the evidence viewed in the light most favorable to
the verdict gives equal or nearly equal circumstantial support to
a theory of guilt and a theory of innocence of the crime charged,
this court must reverse the conviction." O'Laughlin v. O'Brien, 568
F.3d 287, 301 (1st Cir. 2009) (quoting United States v. Flores-

-6-

Rivera, 56 F.3d 319, 323 (1st Cir. 1995)).

He argues that the

evidence as to cause of death in this case is in equipoise and,

thus, that the MAC unreasonably applied the Jackson standard in
allowing the conviction to stand.
This argument is wide of the mark. It fails to recognize
that this equal-evidence rule takes hold only after we have drawn
all reasonable inferences in favor of the verdict.

See, e.g.,

Morgan v. Dickhaut, 677 F.3d 39, 53-54 (1st Cir.), cert. denied,
133 S. Ct. 449 (2012).

In this case, the jury had to choose

between the conflicting views of each side's expert witnesses, and

its verdict indicates that it chose to believe the Commonwealth's
experts.

Once that choice is factored into the equation, the

evidence cannot fairly be said to be in equipoise.

Nor can we second-guess the MAC's decision to accept the
jury's choice.

See Magraw II, 2003 WL 21955875, at *2.

Resolving

conflicts in the evidence is customary fare for jurors and there is

nothing unreasonable about what the jurors did here.

This is

particularly true because the record makes manifest that the

Commonwealth's experts responded directly to the petitioner's
theory.

One acknowledged that the victim's heart showed signs of

inflammation, but explained that such inflammation is not typically

fatal.

The other stated flatly that the victim's pre-existing

cardiac condition "had nothing to do with the cause of death."

-7-

That ends this aspect of the matter.

Viewing the

evidence in the light most favorable to the verdict, it is readily

evident that the jury chose to credit the Commonwealth's amply
supported cause-of-death hypothesis.

Because that choice was well

within the jury's province, the MAC reasonably applied the Jackson
standard in deeming the evidence sufficient to support a finding
that the victim met her death through strangulation.
v.

Smith,

132

S.

Ct.

2,

6-7

(2011)

(per

curiam)

See Cavazos
(summarily

reversing grant of habeas relief and upholding jury's choice

between competing cause-of-death theories).
B.

Identity of the Perpetrator.

The petitioner likewise brands the evidence insufficient

to show that he killed his wife.

In support, he notes that the

case against him was entirely circumstantial; that no hard evidence

linked him to his wife's demise; and that the prosecution put the
time of death at sometime between 11:19 a.m. and 1:19 p.m., whereas
the evidence indicated that he had left his wife's home no later
than 10:15 a.m. that day.1

The petitioner incorporates in this argument an assertion

that testimony from his wife's attorney about statements that the
petitioner allegedly made, introduced to show consciousness of
guilt, was so evidently false that it should be disregarded. We
need not explore this assertion: the record, even if stripped of
the challenged testimony, contains sufficient evidence to sustain
a finding that the petitioner committed the murder.
-8-

With this view of the record in mind, the petitioner

invokes our decision in O'Laughlin.

There, we granted habeas

relief

evidence

after

deeming

circumstantial

support the conviction.

insufficient

to

See 568 F.3d at 308.

The principal problem with this argument is that, under

Jackson, direct evidence is not necessary to sustain a conviction.
See, e.g., United States v. O'Brien, 14 F.3d 703, 706-07 (1st Cir.
1994).

This

connection

principle

with

the

is

even

deferential

more

firmly

approach

established
to

decisionmaking that federal habeas review demands.

in

state-court
See, e.g.,

Morgan, 677 F.3d at 54; Leftwich, 532 F.3d at 27-28; Hurtado v.

Tucker, 245 F.3d 7, 18-19 (1st Cir. 2001).
What is more, not all circumstantial evidence cases are
created equal.

The evidence in this case, though circumstantial,

is far stronger than the evidence in O'Laughlin, especially with

respect to motive and opportunity.
To begin, the petitioner has never questioned that he
possessed the physical ability to strangle his wife.

He also had

a powerful motive: the couple was embroiled in an acrimonious

divorce with hundreds of thousands of dollars on the line.

No

items were missing from the victim's house (a fact that tended to
exclude robbery as a possible motive). In addition, the petitioner
had recently left a rifle on the victim's bed an act easily
construed as threatening.

-9-

Furthermore, the petitioner had access to the victim's

home and there were no signs of forced entry.2

The jury could

plausibly have concluded that the petitioner was the last person to
have seen the victim alive.

Witnesses testified that, by his own

account, he was with her in her home from roughly 9:00 a.m. to
10:15 a.m. on the morning of the murder.

Although this does not

line up perfectly with the time of death estimated by the medical

examiner, estimates are merely estimates; and the jury had room to
conclude either that the slaying occurred earlier or that the
petitioner left later than he claimed.3

Here, moreover, a jury

reasonably could have rejected both the petitioner's claim that his
wife had been unharmed when he left her home and his related claim
that she had died from natural causes. This is significant because
"if the jury disbelieves a defendant's story, it may legitimately
presume that the fabrication was an indicium of his guilt."
Leftwich,

532

F.3d

at

26.

Virtually

by

definition,

any

circumstantial evidence case requires some level of conjecture.

"But a conjecture consistent with the evidence becomes less and
less a conjecture, and moves gradually toward proof, as alternative

Unlike O'Laughlin, in which "several others on the

maintenance staff possessed a master key" in addition to the
petitioner, 568 F.3d at 302, here, there is no indication that
access to the victim's home was widely shared.
3

To be sure, the petitioner proffered an alibi witness, but

the witness (a tenant at one of the petitioner's properties) could
not remember the exact time that the petitioner arrived at the
tenant's apartment.
-10-

innocent explanations are discarded or made less likely."

v. Coalter, 48 F.3d 610, 615-16 (1st Cir. 1995).

Stewart

So it is here.

The short of it is that the Commonwealth presented

evidence adequate to show that the victim was murdered; that the
petitioner had both the means and the motive to commit the murder;
that he had threatened the victim in the past; that he had been
with the victim in close proximity to the time of her death; and
that his explanation of the events was open to question.

In

conducting its review of a state-court conviction for evidentiary

sufficiency, a habeas court may not freely reweigh competing
inferences but must accept those reasonable inferences that are
most compatible with the jury's verdict. See, e.g., Tash v. Roden,
626 F.3d 15, 20 (1st Cir. 2010).

Adhering to this principle, we

conclude that the MAC did not unreasonably apply the Jackson
standard

in

rejecting

the

petitioner's

claim

of

evidentiary

insufficiency.
IV.

SPOLIATION
At

some

time

after

discarded the victim's larynx.

the

autopsy,

the

Commonwealth

The petitioner now claims that the

loss of this potential source of evidence violated his due process

rights.

The MAC rejected this claim.

21955875, at *1-2.

See Magraw II, 2003 WL

So did the district court.

2013 WL 1213056, at *4-5.

-11-

See Magraw III,

The record indicates that the larynx was examined both at

the autopsy and at a subsequent meeting involving three state
medical examiners.

However, the Commonwealth failed to preserve

the larynx, and it was not to be found when (in 1994) the defense
team asked to examine it in preparation for the petitioner's first
trial.
It is common ground that, upon request, a criminal
defendant has a due process right to review all evidence in the
government's
punishment.

possession

that

is

material

to

his

guilt

See Brady v. Maryland, 373 U.S. 83, 87 (1963).

or
But

this right would be empty if the government could trump it by the

simple expedient of destroying evidence harmful to its theory of
the

case.

dimensions

of

pair
a

of

Supreme

defendant's

Court

rights

decisions
when

speak

requested

to

the

evidence,

formerly in the government's possession, is lost, destroyed, or

otherwise unavailable.
The first of these bookend decisions is California v.
Trombetta, 467 U.S. 479 (1984).

Under Trombetta, a state violates

due process when it fails to preserve irreplaceable evidence

possessing
destruction.

exculpatory

value

See id. 488-89.

that

is

apparent

before

its

This precept holds true regardless

of why the evidence was destroyed.

See id.; United States v.

Laurent, 607 F.3d 895, 900 (1st Cir. 2010).

-12-

The other bookend decision is Arizona v. Youngblood, 488

U.S. 51 (1988).

Under Youngblood, a different rule obtains when

the evidence is merely potentially useful to the defense (that is,

when

its

exculpatory

destruction).

value

was

See id. at 57-58.

not

apparent

before

its

In that event, the defendant

cannot prevail on his due process claim unless he establishes that

the state acted in bad faith.

See id.

Fairly read, Trombetta and Youngblood frame a dichotomy

between evidence that is apparently exculpatory and evidence that
is no more than potentially useful.

See Illinois v. Fisher, 540

U.S. 544, 547-48 (2004) (per curiam); Olszewski v. Spencer, 466

F.3d 47, 56-57 (1st Cir. 2006).

Because the record contains

nothing to suggest that the Commonwealth acted in bad faith, the

petitioner's claim of error necessarily turns on which branch of
the dichotomy applies here.
We conclude that Youngblood is controlling.

There, the

Court considered the import of spoiled semen samples in a rape case

in which the rapist's identity had been the primary issue at trial.
See 488 U.S. at 53-54. The defendant argued that these samples, if
properly preserved or tested earlier, might well have served to
exonerate him.

See id. at 54.

But the Court was chary of imposing

upon police an "absolute duty to retain and to preserve all

material that might be of conceivable evidentiary significance in
a particular prosecution."

Id. at 58.

-13-

Since the semen samples

were no more than "potentially exculpatory evidence" and there was

no evidence that the authorities had acted in bad faith, the Court
ruled

that

infringed.

the

defendant's

due

process

rights

had

not

been

Id. at 57-58 (quoting Trombetta, 467 U.S. at 486).

The parallel between Youngblood and the case at hand is

striking. The petitioner does not point to any frankly exculpatory

aspect of the larynx but, rather, argues merely that if his expert
had the opportunity to inspect the larynx, he might well have found
evidence that the victim was not strangled.

So viewed, the larynx

like the semen samples in Youngblood is evidence about which

"no more can be said than that it could have been subjected to
tests, the results of which might have exonerated the defendant."
Id. at 57.
Despite the obvious similarity between this case and
Youngblood, the petitioner strives to convince us that logic
militates toward a conclusion that the larynx was exculpatory.

In

support, he notes that the Commonwealth's experts inspected the

larynx at some length and speculates that the Commonwealth surely
would have introduced the larynx into evidence if that examination
tended to establish that the victim was strangled.
this

speculation,

he

insists

that

if

the

Building on

larynx

was

not

inculpatory, then it must have been exculpatory.

We do not agree.

Giving force to this line of reasoning

would topple the careful balance constructed by the Supreme Court's

-14-

decisions in Trombetta and Youngblood.

It will often be the case

that evidence no longer available might have been inculpatory,

exculpatory, or simply inconclusive.

If the state's failure to

preserve such evidence could give rise to an inference that the

evidence was exculpatory, there would be little need for the
Trombetta-Youngblood dichotomy.
We add that, if the inference suggested by the petitioner
were to prevail, the state would have little choice but to preserve
all evidence that might conceivably be useful to the defense. Such
a result would run directly contrary to the goal of the Youngblood
Court.

See 488 U.S. at 58.

If more were needed and we doubt that it is the

petitioner's thesis that the larynx was most likely exculpatory is

not supported by the factual record.

A plethora of evidence

gleaned from the larynx was in fact tendered to the petitioner and
introduced into evidence at the trial.

This evidence fit neatly

with the Commonwealth's strangulation theory.

For example, the

medical examiner who performed the autopsy and found strangulation

to be the cause of death testified at length to findings stemming
from a layer-by-layer dissection of the victim's neck, including
identification
structure.

of

hemorrhages

throughout

the

entire

larynx

Similarly, a second medical examiner opined that

injuries around the victim's neck and larynx were indicative of

strangulation. She based this conclusion in part on photographs of

-15-

the neck and larynx, which were available to the defense and
explained to the jury.

This evidentiary predicate undermines the

petitioner's ipse dixit that the preservation of the larynx would

likely have served to exonerate him.

On this record, then, it

would be folly to say that the MAC unreasonably applied Trombetta

and Youngblood when it declined to find a due process violation
based on the unavailability of the larynx itself.4

Cf. Youngblood,

488 U.S. at 58 (observing that courts ordinarily should abjure

"'the treacherous task of divining the import of materials whose
contents

are

unknown

and,

very

often,

disputed'"

(quoting

Trombetta, 467 U.S. at 486)).

V.

PROSECUTORIAL MISCONDUCT
As a parting shot, the petitioner asserts that certain

statements made by the prosecutor were so outlandish as to sully

the fairness of the trial. These statements fall into two groups.
First, the petitioner identifies three instances in which the
prosecutor, while cross-examining the petitioner's medical expert,
made reference to the petitioner's prior trial.

Second, he

identifies two instances in which the prosecutor referred to the

Because the larynx evidence was not apparently exculpatory,

we need not address the ancillary question of whether that
unavailable evidence was irreplaceable. See Olszewski, 466 F.3d at
58 (describing irreplaceability requirement). We do note, however,
that the MAC concluded that "the absence of such evidence did not
preclude the defendant from presenting his theory of the case to
the jury," Magraw II, 2003 WL 21955875, at *2, and that this
conclusion bears the hallmarks of objective reasonableness.
-16-

petitioner's placement of a rifle on his wife's bed.

As to both

groups, the petitioner avers that the prosecutor's references were

directly contrary to instructions previously given by the trial
justice.
In habeas jurisdiction, our focus is "the narrow one of
due process, and not the broad exercise of supervisory power."
Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974) (internal
quotation mark omitted).

The clearly established law in this

area is exemplified by the Supreme Court's decision in Darden v.

Wainwright, 477 U.S. 168 (1986).

Under Darden, the constitutional

test is whether the prosecutor's alleged misconduct "'so infected

the trial with unfairness as to make the resulting conviction a
denial of due process.'" Id. at 181 (quoting Donnelly, 416 U.S. at
643).

This is a case-specific inquiry; "[t]here is no precise

federal

standard

governing

prosecutor's remarks."

due

process

claims

based

on

Dagley v. Russo, 540 F.3d 8, 15 n.3 (1st

Cir. 2008).
The MAC disposed of this issue in a footnote: "The
defendant's remaining claims regarding prosecutorial misconduct
lack

merit

for

the

reasons

stated

at

pages

49-67

of

the

Commonwealth's brief, and they do not warrant further discussion by

us."

Magraw II, 2003 WL 21955875, at *1 n.1.

The petitioner

succeeded in persuading the district court that the cursory nature

of this ruling paved the way for de novo review.

-17-

See Magraw III,

2013 WL 1213056, at *5; see also Fortini v. Murphy, 257 F.3d 39, 47
(1st Cir. 2001) (calling for de novo review of claims not addressed
on merits by state court).
We do not think that de novo review is appropriate.
Federal habeas courts must apply a rebuttable presumption that any
federal

claim

properly

brought

before

the

state

court

and

thereafter rejected was "adjudicated on the merits" for AEDPA

purposes.

See Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013).

This is so even if the state-court opinion does not expressly

address the issue.

See id.

Such an approach strikes a careful

federalist balance and recognizes that a federal habeas court has

"no power to tell state courts how they must write their opinions."
Coleman v. Thompson, 501 U.S. 722, 739 (1991); see Hodge v.
Mendonsa, 739 F.3d 34, 45 (1st Cir. 2013) (recognizing that "state
appellate

courts

carrying

heavy

caseloads

have

adopted

many

mechanisms to handle their case load expeditiously").

In

this

case,

the

MAC

made

pellucid

prosecutorial misconduct claim had its full attention.

that

the

Although

the MAC's rejection was not elaborately reasoned, the pages of the
Commonwealth's brief to which it alluded described in some detail
both the instances of alleged misconduct and the reasons why the
behavior was innocuous.

The brief's analysis closely mirrors what

one would expect of a court addressing the federal issues raised.

It follows that, for habeas purposes, this claim must be deemed to

-18-

have been adjudicated on the merits by the MAC.

See, e.g., Hodge,

739 F.3d 34, 41-42; Zuluaga v. Spencer, 585 F.3d 27, 31 (1st Cir.
2009).

Our

review

therefore

centers

on

whether

the

MAC's

resolution of the claim constituted an unreasonable application of

Darden.
We start with the trial justice's pre-trial instruction
to the parties to eschew any reference to the earlier murder trial.
The lawyers were told in substance that, when questioning witnesses
about

prior

testimony,

"proceeding."5

they

should

use

blander

terms

like

Despite this instruction, the prosecutor thrice

referred to the first "trial" while attempting to impeach the

petitioner's medical expert.

These references were isolated and

dispersed through a lengthy cross-examination.

The trial justice

did not believe that they required a mistrial, nor did the MAC
believe that they rendered the trial unfair.
The

jury

obviously

knew

that

some

sort

of

prior

proceeding took place; the trial transcript contains ubiquitous

allusions to a prior hearing, to prior testimony, and the like
and many of these allusions were made by defense counsel.

Given

this context, it seems highly unlikely that three uses of the word

The record does not contain the trial justice's verbatim

instruction, but the parties seem to be in agreement as to its
substance. This informal interpretation of what the trial justice
said is consistent with the multitude of references in the trial
transcript, not objected to, to a prior hearing and prior
testimony.
-19-

"trial," in a thirteen-day proceeding unadorned by any mention of

the prior trial's nature or outcome, would have altered the jury's
perceptions of the merits of the petitioner's case.

Consequently,

we discern no error let alone the increment of incorrectness that

habeas relief requires in the MAC's refusal to vacate the
petitioner's conviction based on these remarks.6 See Donnelly, 416
U.S. at 647 (stating that "a court should not lightly infer
. . . that a jury, sitting through lengthy exhortation," will draw
the most damaging meaning from a prosecutor's remark); United
States v. Lilly, 983 F.2d 300, 307 (1st Cir. 1992) (similar).
This leaves the second group of statements, which took
place during the prosecutor's cross-examination of the petitioner's
son.

Some background is necessary.

During earlier proceedings, the son had invoked his Fifth

Amendment right against self-incrimination when questioned about

two rifles that belonged to his father.

One of these rifles had

once been left by the petitioner on the victim's bed.

The son

apparently was concerned that some of his conduct, possibly in

moving

or

hiding

prosecution.

the

rifles,

might

expose

him

to

criminal

Following an in camera hearing, the trial justice

instructed the prosecutor that he was not to ask any rifle-related

We note that the trial justice twice offered to give a

curative instruction to the jury.
The petitioner's counsel
demurred.
-20-

questions that might implicate the son's privilege against self-incrimination.

The prosecutor did not violate this proscription.
two rifle-related questions to the son drew no objection.

His
They

inquired only as to whether the son knew whether the "rifle on the
bed" incident had occurred.

The witness answered the questions

without invoking the Fifth Amendment.

Reading

the

record

as

whole,

it

is

surpassingly

difficult to see how the posing of these rifle-related questions

constituted

misconduct

determination

that

at

these

all.

Manifestly,

references

did

then,
not

the

MAC's

constitute

prosecutorial misconduct sufficient to warrant setting aside the

petitioner's conviction was not an unreasonable application of
clearly established law.
VI.

CONCLUSION
We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

-21-