[Not for Publication - Not to be Cited as Precedent]



# United States Court of Appeals

For the First Circuit

No. 01-1544

ARTHUR BLAKE,
Petitioner, Appellant,

v.
MICHAEL T. MALONEY; THOMAS F. REILLY, D.A.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge ]

Before
Selya, Circuit Judge , Stahl, Senior Circuit Judge , and Lipez, Circuit Judge

.

Margaret G. Barmack and Barmack & Boggs on brief for appellant. James J. Arguin , Assistant Attorney General, and Thomas F. Reilly , Attorney General, on brief for appellees.

February 12, 2002-3- PER CURIAM. Petitioner-Appellant Arthur Blake appeals the
denial of his petition for writ of habeas corpus challenging his state

cour t conviction for armed assault with intent to murder, and related
assault and weapons charges. Citing Bruton v. United States , 391 U.S.

12 3 (1968), Blake claims first that the trial court violated his Sixth
Amendment right to confront his accusers by admitting statements made
by his non-testifying codefendants to the grand jury, and that the
Massachusetts Supreme Judicial Court (“SJC”) failed to correct this
error on appeal. Second, Blake argues that the evidence underlying his

conviction for assault with intent to murder as a joint venture r of

codefendant Damon Brown was cons titutionally insufficient. Because
neither argument has merit, we affirm the district court’s order.

The facts of this case have been explained previously, first
by the SJC on direct review, C ommonwealth v. Blake , 696 N.E.2d 929,

930-31 (Mass. 1998), and then by this court on review of the habeas
petition fi led by Damon Brown, B rown v. Maloney , 267 F.3d 36, 38-39
(1st Cir. 2001 ). For purposes of this opinion, the relevant facts are
recounted, albeit briefly, below.

Petitioner and Brown attended a “Caribbean Festival” on
August 2 8, 1993, and were part of a large crowd gathered in Franklin

Park. Later that day in the evening, after attempting to snatch a gold
chain from the neck of Kerry Davis, who was also attending the

Festiv al, Brown shot and injured several bystanders. Blake and another1 Rentas was acquitted at trial. Blake , 696 N.E.2d at 930

n.2.

2 Blake claims that the Com m onwealth introduced these statements to prove that he had offered a false alibi. As his defense rested on a theory of misidentification, Blake insists that any evidence that he had previously offered a (false) alibi would poison the jury against him by suggesting that he had something to hide and was, in fact, one of the shooters.

-4- friend of Brown, Angel Rentas, apparently also shot into the crowd
after Brown fired his weapon. 1

Identification of the shooters was the central issue before

the jury. Although none of the defendants testified at trial, the
prosecution introduced statements made by Blake and Brown to the grand
jury, in which they claimed that they had been at Rentas’s apartment

from about 7:30 or 8 :00 p.m. until approximately midnight, and knew
nothing about the shootings. The government also introduced statements
made by Rentas to the grand jury that Blake and Brown left his
apartment somewhere between 9:00 and 9:30 p.m. Although Petitioner
vehemently opposed the use of these statements by the government at
trial, his objections were overruled.

In his habe as petition, Petitioner alleges that the trial
court violated the Supreme Court’s instruction in Bruton by improperly
admitting into evidence inculp atory statements of non-testifying codefendants that also implicated him, thereby infecting the trial with

unfair preju dice. 2Damon Brown presented this precise argument in his3 Although Brown’s and Blake’s habeas petitions raised

substantially similar issues, the motion to consolidate the two petitions was denied by both judges to whom the petitions were originally allotted. Consequently, Brown’s petition was considered by Judge Lasker, and Blake’s petition was considered by Chief Judge Young.

-5- habeas petition, the denial of which we recently affirmed. 3 B ro wn , 267

F.3d at 40-43. As there is no reason for us to retread the same
ground , we reject Blake’s assignment of B ruton error for the reasons
offered in Brown

. See id.

Bl ake’s contention that there was insufficient evidence to
sustain his conviction as a joint venturer is also meritless. To prove

t he existence of a joint venture under Massachusetts law , the
prosecution must demonstrate that the defendant was “(1) present at the

scene of the crime, (2) with knowledge that another intend[ed] to
commit the crime or with intent to commit a crime, and (3) by agreement
[was] willing and availabl e to help the other if necessary."

Commonwealth v. Longo , 524 N.E.2d 67, 70 (Mass. 1988) . Blake
acknowledges that the evidence at trial proved that he was at the scene
and that he was firing a gun at approximately the same time as Brown.
Nevertheless, Blake maintains that the Commonwealth failed to satisfy

the third prong, citing the alleged lack of any direct evidence or

b asis from which a jury could infer that he intended to help Brown kill

Davis. As the SJC concluded, however, the fact that Blake joined

Brown after the initial shots were fired and also began to shoot in4 Even ass uming that Blake had no knowledge of Brown’s

malice toward Davis at the beginning of the evening, once Brown began shooting at Davis, Blake could no longer claim ignorance of Brown’s criminal intent. Therefore, to the extent that Blake also seeks to challenge the sufficiency of his conviction under prong two, we reject his argument.

-6- Davis’s direction provides sufficient evidence to allow a jury to infer

not only “that Blake was availab le and willing to help Brown, but also

that he, in fact, did so.” B lake , 696 N.E.2d at 934 (citing

Commonwealth v. Williams , 661 N.E.2d 617, 625 (Mass. 1996)). 4 We agree

with the district court that Blake has “fail[ed] to advance any

evidence of an unreasonable determination of the fa cts” by the SJC,

Blake v. Maloney , 142 F. Supp. 2d 135, 139 (D. Mass. 2000) (citing 28
U.S.C. § 2254(d)(2)), and find no error in the proceedings below.

For the foregoing reasons, the distric t court’s denial of
Petitioner’s habeas petition is affirmed.