Chretien v . NH State Prison, Warden CV-07-44-JL 4/21/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Roland Chretien
v. Civil N o . 07-44-JL Opinion N o . 2008 DNH 084 New Hampshire State Prison, Warden
MEMORANDUM AND ORDER
Petitioner Roland Chretien, a New Hampshire State Prison
inmate, seeks federal habeas relief from his state court
conviction, alleging violations of his constitutional rights
based on evidentiary rulings at his trial. This court has
jurisdiction under 28 U.S.C. § 1331 (federal question) and the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
See 28 U.S.C. § 2254(a) (2006) (habeas relief for state
prisoners).
The respondent, the Warden of the New Hampshire State
Prison, has moved for summary judgment. After a hearing, and for
the following reasons, the Warden’s motion for summary judgment
is granted in part and denied in part, and an evidentiary hearing
will be scheduled to address Chretien’s remaining claim. APPLICABLE LEGAL STANDARD
A party is entitled to summary judgment where “the
pleadings, the discovery and disclosure materials on file, and
any affidavits, show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). The moving party bears
the initial burden of showing the absence of a genuine issue of
material fact. Celotex Corp. v . Catrett, 477 U.S. 317, 323
(1986).
Not every factual dispute is sufficient to thwart summary judgment; the contested fact must be “material” and the dispute over it must be “genuine.” In this regard, “material” means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. By like token, “genuine” means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.
Navarro v . Pfizer Corp., 261 F.3d 9 0 , 93-94 (1st Cir. 2001).
Once that burden is met, the burden shifts to the nonmoving party
to produce specific facts of record indicating a genuine issue
for trial. See Geffon v . Micrion Corp., 249 F.3d 2 9 , 34 (1st
Cir. 2001); see also Celotex, 477 U.S. at 323. In deciding
whether summary judgment is proper, the court must view the
entire record in the light most favorable to the nonmoving party
2 and draw all reasonable inferences in that party’s favor. See
Zyla v . Wadsworth, 360 F.3d 243, 246 (1st Cir. 2004).
BACKGROUND1
I. Facts
Petitioner Ronald Chretien was convicted of two counts of
sexual assault in violation of N.H. Rev. Stat. Ann. § 632-A:4,
and three counts of aggravated felonious sexual assault in
violation of § 632-A:2, occurring at the Blazing Saddles
Motorcycle Shop in Plaistow, New Hampshire on June 2 6 , 2003.
Around noon on that day, the complainant entered the store to
purchase a belt. Chretien, a co-owner of the store whom the
complainant had met on prior occasions, approached her and they
had a brief conversation. The complainant then went upstairs to
the second floor of the store to find a belt. Chretien followed
her to the top of the stairs and continued the conversation.
They discussed the possibility of the complainant working at the
store on a part-time basis. Chretien then spun her around, told
her she looked pretty good, pulled her toward him, and kissed
1 On habeas review, facts are considered in a manner “consistent with the state court findings,” see McCambridge v . Hall, 303 F.3d 2 4 , 26 (1st Cir. 2002), unless the petitioner rebuts them by clear and convincing evidence, which Chretien does not seek to do here. 28 U.S.C. § 2254(e)(1)(2007).
3 her. The complainant told him to stop and pulled away before
walking to the back of the store. Chretien then grabbed the
complainant by her wrist, hurting her, and kissed her again. She
pulled away from him and tried walking toward the front of the
store.
As she walked away from him, Chretien pulled the complainant
behind the cash register and told her she could not leave him
with an erection. He then put her hand onto his pants and told
her that his erection was her fault. Chretien pulled her into a
nearby stock room, shut the door, grabbed her around the throat,
and tried to lift up her shirt and touch her breasts. Angered by
the complainant’s refusals to cooperate, Chretien pushed her to
the floor and forced her to perform fellatio, eventually
ejaculating. Once the act was completed, Chretien pushed her out
of the stock room and went back to work. Before she left the
store, she cleaned off her face and mouth with tissue paper that
she then placed in her purse.
After leaving, the complainant went to Anzalone’s Market in
Exeter, New Hampshire, where she washed her mouth out with a
carbonated beverage. After telling a clerk at the deli counter
about what had just happened, she discarded the tissues in a
garbage can outside the market. Police later retrieved these
tissues from the garbage. DNA testing of the semen on these
4 tissues was consistent with Chretien’s DNA. Chretien was
eventually indicted on the above-referenced sexual assault
charges.
II. Procedural history
Prior to his bench trial in Rockingham County Superior
Court, Chretien filed a motion in limine, as required by New
Hampshire Superior Court Rule 100-A, seeking permission t o : (1)
call Peter Hallinan2 as a witness to testify to a subsequent
sexual encounter with the complainant, including an implied
accusation of sexual assault after the fact and (2) depose and
cross-examine the complainant about that series of events. In
support of this motion, Chretien submitted Hallinan’s affidavit
detailing a consensual sexual encounter with the complainant in a
restaurant parking lot in the summer of 2003, after the assault
by Chretien. According to the affidavit, early the next morning,
Hallinan received a telephone call from the complainant’s phone
number. An unknown male asked about the incident. Soon
thereafter, Hallinan called the unknown male at the same number
and was told not to worry because the complainant had “changed
her story” and was not going to press charges. While reserving
2 In the trial transcript, Peter Hallinan’s last name is incorrectly transcribed as “Callahan.”
5 ruling to the time of trial, the superior court eventually
informed trial counsel for Chretien that his motion had been
denied.
During the course of the trial itself, Chretien asked the
court for permission to call Hallinan as a witness. The court
refused, citing the New Hampshire rape shield law, N.H. Rev.
Stat. Ann. § 632-A:6, and ruling, inter alia, that such testimony
was not relevant and its prejudicial effect to the complainant
far outweighed any probative value. At the conclusion of the
bench trial, Chretien was convicted on all counts.
Chretien moved in the superior court for a new trial,
arguing that the court erred by excluding Hallinan’s testimony,
and that his counsel was ineffective in advising Chretien to
waive his right to a trial by jury. The motion was denied.
Chretien then appealed his convictions to the New Hampshire
Supreme Court, which affirmed in an unpublished opinion. New
Hampshire v . Chretien, N o . 05-0228, slip op. at 1-2 (N.H. Aug.
1 1 , 2006) (“Direct Appeal Opinion”).
On appeal, Chretien argued that the trial court erred in
denying his motions: (1) to depose the victim before trial, (2)
to admit extrinsic evidence that the victim later made an
allegedly false accusation of sexual assault against another man,
and (3) for a new trial. The supreme court rejected Chretien’s
6 first and third claims, ruling that he had failed to preserve
them in the superior court. The supreme court further ruled that
Chretien also had not preserved any claim that he was wrongfully
prevented from “cross-examin[ing] the victim about the alleged
subsequent assault.” Direct Appeal Opinion, slip op. at 2 .
Limiting its review to whether the superior court correctly
excluded extrinsic evidence of the allegedly false accusation,
the supreme court ruled that the trial court’s ruling had
violated neither the New Hampshire nor the United States
Constitution. First, the supreme court upheld the evidentiary
ruling as a “sustainable exercise of discretion” under New
Hampshire law, ruling that “[e]xtrinsic evidence of a prior (or
in this case, a subsequent) false allegation of sexual assault by
a victim in a sexual assault case may be admitted only where the
allegations are similar, and the proffered evidence is highly
probative of the material issue of the complainant’s motives.”
Id. (internal quotations omitted). Second, the supreme court
ruled that excluding the extrinsic evidence did not violate
Chretien’s right to due process under the federal constitution.
Distinguishing the decision of the First Circuit in White v .
Coplan, 399 F.3d 18 (1st Cir. 2005), the supreme court reasoned
that “White concerned cross-examination, while this case concerns
extrinsic proof,” which “requires more witnesses and documents,
7 and so greater risks of confusion and delay.” Direct Appeal
Opinion, slip op. at 2 (quoting White, 399 F.3d at 25-26). The
court further reasoned that “in White, the evidence of the
falsity of the victims’ earlier accusations was much more
compelling than the evidence here,” which consisted only of
“testimony that an unknown man accused [Hallinan] of assaulting
the victim,” coupled with testimony that the same unknown man
later told Hallinan that the victim had recanted. Id. at 3 ; but
see infra notes 5 and 1 1 .
Following the denial of his appeal, Chretien filed a second
motion for a new trial in the superior court, this time claiming
that counsel was ineffective for failing to cross-examine the
victim about her allegedly false charge that Hallinan had
sexually assaulted her. In a written order denying the motion,
the superior court explained that it had “advised the defendant’s
trial counsel that such evidence would not be permitted because
it was not relevant,” and that counsel had not simply
“forgot[ten] to ask the victim about the subsequent incident.”3
New Hampshire v . Chretien, Rockingham County, N o . 04-S-774, slip
3 This order rectified the supreme court’s mistaken but understandable belief that Chretien failed to preserve his cross examination claim at trial. The superior court’s ruling that Chretien had in fact preserved this claim was not entered into the record until October 2 3 , 2006, well after the supreme court issued its decision.
8 op. at 2 (Oct. 2 3 , 2006). The superior court focused its
analysis not on the complainant’s allegedly false accusation (as
cited in the motion), but on alleged sexual conduct, explaining
its view that “a subsequent sexual encounter with a different
individual had absolutely no relevance to any issue in this
case.” Id. Chretien appealed this decision to the New Hampshire
Supreme Court, which declined to accept the discretionary appeal.
New Hampshire v . Chretien, N o . 2006-864, slip op. (Jan. 1 7 ,
2007); see N.H. SUP. C T . R. 7(1)(B).
III. Petition for writ of habeas corpus
Chretien then filed a petition for a writ of habeas corpus
in this court under 28 U.S.C. § 2254. He challenges his
conviction on the grounds that the superior court improperly
denied him the opportunity t o : (1) cross-examine the victim
about the allegedly false accusation of sexual assault she made
against Hallinan, (2) cross-examine the victim about the alleged
incident of consensual sex between her and Hallinan, and (3)
introduce extrinsic evidence on both of these points.
9 ANALYSIS
I. Applicable Law
A federal court may not disturb a state court adjudication
of a federal claim on the merits unless the state court decision
“was contrary t o , or involved an unreasonable application o f ,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1); see also
Williams v . Taylor, 529 U.S. 362, 412 (2000). A state court
decision is “contrary to” federal law if it contradicts the
Supreme Court on a question of law or “decides a case differently
. . . on a set of materially indistinguishable facts.” Id. at
412-13. A decision is an “unreasonable application” of Supreme
Court precedent if it “identifies the correct governing legal
principle from [the Supreme] Court’s decisions, but unreasonably
applies that principle to the facts of the prisoner’s case.” Id.
at 413. An unreasonable application of federal law must be
objectively unreasonable, not merely incorrect or erroneous, to
warrant habeas relief. Id. at 411; accord Phoenix v . Matesanz,
233 F.3d 7 7 , 80-81 (1st Cir. 2000). If “the petition presents a
federal claim that was raised before the state court but was left
unresolved, the AEDPA’s strict standards do not apply” and the
court will review the claim de novo. Horton v . Allen, 370 F.3d
7 5 , 80 (1st Cir. 2004).
10 While a criminal defendant has constitutional rights to (1)
cross-examine the witnesses who testify against him, and (2) to
present evidence in his own defense, see United States v .
Scheffer, 523 U.S. 303, 308 (1998); Delaware v . Van Arsdall, 475
U.S. 673, 679 (1986), neither right is absolute and “may, in
appropriate cases, bow to accommodate other legitimate interests
in the criminal trial process.” Chambers v . Mississippi, 410
U.S. 284, 295 (1973). Thus, these rights may be subject to
reasonable restrictions reflecting concerns of harassment,
prejudice, witness safety, confusion, relevance, or delay. Olden
v . Kentucky, 488 U.S. 227, 232 (1988); see also Scheffer, 523
U.S. at 308 (unreasonable restrictions are those that are
arbitrary or disproportionate to the purposes they are designed
to serve).
Under Scheffer, states have “broad latitude under the
Constitution to establish rules excluding evidence” where those
restrictions serve a legitimate government purpose. 523 U.S. at
308; see also Michigan v . Lucas, 500 U.S. 145, 149 (1991); Rock
v . Arkansas, 483 U.S. 4 4 , 55 (1987); Dolinger v . Hall, 302 F.3d
5 , 14-15 (1st Cir. 2002). Rape shield laws, 4 which provide for
4 New Hampshire’s rape shield law is set forth in both a statute, N.H. Rev. Stat. Ann. § 632-A:6, and a rule of evidence N.H. R. Evid. 412.
11 the exclusion of certain types of otherwise admissible evidence
in sexual assault cases, generally have been upheld as
permissibly protecting victims of sexual assault “against
surprise, harassment, and unnecessary invasions of privacy.”
See, e.g., Lucas, 500 U.S. at 150 (upholding a Michigan rape
shield statute as a “valid legislative determination that rape
victims deserve heightened protection against surprise,
harassment, and unnecessary invasions of privacy”). As explained
infra, however, to withstand constitutional scrutiny, rape shield
laws may not, in every case and under all circumstances, be
strictly construed and rigidly enforced, or broadly applied.
A. Extrinsic evidence
Chretien asserts that his conviction was obtained in
violation of his Fourteenth Amendment due process right to a fair
opportunity to present a defense. See U.S. CONST. amend. XIV.
Specifically, he argues that the superior court deprived him of
this right when it excluded extrinsic evidence--in the form of
Hallinan’s testimony--of the complainant’s alleged sexual liaison
with him, and her allegedly false accusation of sexual assault
against him.
The Supreme Court has recognized that while “[f]ew rights
are more fundamental than that of an accused to present witnesses
12 in his own defense,” Chambers, 410 U.S. at 302, that right is not
absolute. Scheffer, 523 U.S. at 308. As discussed supra, the
right to present witnesses is subject to “reasonable
restrictions” and may, in appropriate circumstances, be
restricted in favor of legitimate state interests. Id.
In rejecting Chretien’s claim that the superior court had
violated his federal due process and confrontation rights by
excluding extrinsic evidence of the complainant’s allegedly false
accusation against Hallinan, the supreme court’s application of
this principle cannot be characterized as objectively
unreasonable. See Williams, 529 U.S. at 412. Noting the “risks
of confusion and delay” attendant to extrinsic evidence of a
victim’s credibility in general, the court reasoned that these
risks were heightened in the case of Hallinan’s proffered
testimony as to the allegedly false accusation, which depended
entirely on what an “unknown man” alleged the complainant had
said. There is arguably room for disagreement over the trial
court’s decision to exclude the evidence from a bench trial,5
5 The court notes that Hallinan’s affidavit submitted by defense counsel at trial was highly detailed, and arguably quite probative on the issue of a possibly similar, and allegedly false, accusation by the complainant. See N.H. R. Evid. 608(b) (allowing cross-examination of witness concerning specific instances of conduct probative of untruthfulness). Although the caller’s identity was not precisely known by Hallinan, his affidavit stated that the call came from the complainant’s phone
13 because the risk of prejudice to the complainant was likely less
than that involved in a jury trial. United States v . Shukri, 207
F.3d 412, 419 (7th Cir. 2000). Still, the supreme court’s
balancing of Chretien’s right to present evidence in his own
defense against the interest in excluding that kind of evidence
was not an unreasonable application of Olden. 488 U.S. at 232
(constitutional trial rights of the accused may be subject to
prejudice, witness safety, confusion, relevance, or delay).
Therefore, as a matter of habeas review under the AEDPA standard,
the Warden is entitled to summary judgment as to Chretien’s claim
arising out of the exclusion of extrinsic evidence of the
complainant’s allegedly false accusation.
number. This further indicated that the complainant had disclosed the alleged encounter with someone likely in her household, followed by contact between a man using the complainant’s phone and the alleged assailant, thereby creating another (although inferential) similarity between the two incidents. In a subsequent phone call from the same phone, the caller said the complainant had “changed her story.” Further, the probative value of this evidence may have increased depending on the cross-examination denied by the trial court. See White, 399 F.3d at 2 2 ; State v . Miller, 155 N.H. 246, 250, 921 A.2d 942, 947 (2007). As explained infra, a pre-trial evidentiary hearing might have brought these issues into sharper focus.
14 B. Cross-examination
Chretien also asserts that his conviction was obtained in
violation of his Sixth Amendment right to confront adverse
witnesses because the superior court prevented him from cross-
examining the complainant about her conduct during and after the
alleged Hallinan encounter. Because neither the trial court nor
the supreme court6 addressed the merits of Chretien’s federal
constitutional claim based on his restricted right to cross-
examination, this court reviews the claim de novo. Norton v .
Spencer, 351 F.3d 1 , 5 (1st Cir. 2003); Fryar v . Bissonnette, 318
F.3d 339 (1st Cir. 2003). 7
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . .” U.S. CONST.
6 Again, the supreme court initially declined to address the issue, Direct Appeal Opinion, slip op. at 2 , based on an understandably mistaken belief, later corrected by the superior court, that it was unpreserved. See supra at n . 3 . When, in his appeal from the denial of his second motion for a new trial, Chretien corrected the record to establish that he had, in fact, preserved the issue, the supreme court nonetheless declined to accept the appeal. 7 The Warden does not argue that, as a result, this claim is procedurally defaulted, and this court declines to consider such an argument sua sponte, see Belton v . Warden, 2008 DNH 070 (D.N.H. Apr. 2 , 2008) (explaining procedural default doctrine), particularly where the superior court subsequently clarified that Chretien had, in fact, asked the court to permit cross- examination of the complainant regarding these subjects.
15 amend. V I . A primary interest secured by the Confrontation
Clause is the right of the accused to cross-examine adverse
witnesses. Douglas v . Alabama, 380 U.S. 415, 418 (1965). The
right of cross-examination is a “functional” right designed to
promote reliability in the truth-finding functions of a criminal
trial. Kentucky v . Stincer, 482 U.S. 730, 736 (1987); see also
Pointer v . Texas, 380 U.S. 400, 404 (1965) (“certainly no one
experienced in the trial of lawsuits, would deny the value of
cross-examination in exposing falsehood and bringing out the
truth in the trial of a criminal case”).
Nevertheless, “trial judges retain wide latitude insofar as
the Confrontation Clause is concerned to impose reasonable limits
on [the cross-examination of an adverse witness] based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.” Van Arsdall,
475 U.S. at 679. The Confrontation Clause “guarantees an
opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever
extent, the defense might wish.” Delaware v . Fensterer. 474 U.S.
1 5 , 20 (1985). Accordingly, a Confrontation Clause violation
occurs only when restrictions on cross-examination work
“effectively to emasculate the right of cross-examination
16 itself.” Smith v . Illinois, 390 U.S. 129, 131 (1968); see also
Stincer, 482 U.S. at 737; Fensterer, 474 U.S. at 1 8 .
Chretien claims that the trial court erred in denying him
the opportunity to cross-examine the complainant about: (1) her
alleged sexual liaison with Hallinan subsequent to the charged
sexual assault, and (2) the allegedly false accusation against
Hallinan based on inferences drawn from Hallinan’s nearly
contemporaneous phone conversation with a man possessing both the
complainant’s phone and knowledge of the accusation. The New
Hampshire rape shield law generally excludes all evidence of
prior consensual activity on the part of the complainant. N.H.
Rev. Stat. Ann. § 632-A:6; N.H. R. Evid. 412. But in the seminal
New Hampshire case on point, State v . Howard, the New Hampshire
Supreme Court held that the victim’s privilege created by the law
must, like all statutory or common law privileges, yield to a
competing public interest when the Constitution demands i t . 121
N.H. 5 3 , 427 A.2d 457 (1981); see also State v . Goulet, 129 N.H.
348, 351, 529 A.2d 879 (1987) (“the right of confrontation
limit[s] the application of the rape shield law when evidence of
the victim’s prior sexual activity with people other than the
defendant has a probative value in the context of a particular
case that outweighs its prejudicial effect on the victim”); State
17 v . Spaulding, 147 N.H. 583, 589, 794 A.2d 800 (2002). It is
recognized that:
Because strictly construed, the shield law would bar evidence of prior sexual activity in all cases, and such a construction would render the law unconstitutional, the [New Hampshire Supreme] Court has held that a defendant in a [sexual assault] prosecution must be given an opportunity to demonstrate that due process requires the admission of such evidence because the probative value in the context of the particular case outweighs its prejudicial effect on the prosecutrix.
2 R. McNamara, New Hampshire Practice, Criminal Practice and
Procedure § 28.27 (3d ed. 1997) (citing several supporting N.H.
Supreme Court decisions). Thus, disallowing cross-examination of
the victim of a sexual assault about other sexual conduct does
not offend the confrontation clause, so long as the ruling is
based on a proper weighing of the competing interests identified
by Olden. See Lucas, 500 U.S. at 149; Dolinger v . Hall, 302 F.3d
5 , 11 (1st Cir. 2002) (affirming trial court’s limitation on
scope of cross-examination where questioning posed risk of
prejudice and harassment to victim).
While the federal evidentiary rules broadly prohibit
evidence of “all sexual conduct other than the rape or assault at
issue,” see Fed. R. Evid. 412; United States v . Yazzie, 59 F.3d
807, 814 (9th Cir. 1995), the New Hampshire rape shield statute
appears by its terms to be limited to evidence of “prior” sexual
18 conduct. See N.H. Rev. Stat. Ann. § 632-A:6; N.H. R. Evid. 412.
Chretien has never disputed that New Hampshire’s statute and rule
properly may be applied to evidence of subsequent sexual conduct,
and this court will assume, as did the New Hampshire Supreme
Court, that the law applies to evidence of subsequent, as well as
prior, conduct. As just discussed, however, the simple fact that
evidence falls within the scope of a state rape shield law does
not mean that its exclusion in a particular case does not violate
the defendant’s confrontation clause rights. See Lucas, 500 U.S.
at 149. 8
New Hampshire Rule of Evidence 608(b), the counterpart to
Federal Rule 608(b), “permits an attack on a witness’ credibility
. . . with restrictions and in the discretion of the court, by
cross-examination of the witness directed to specific instances
of conduct bearing on truthfulness--including instances of prior
untruths.” White, 399 F.3d at 22 (internal quotations omitted).
Such evidence, although relevant, may be excluded if its
“probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
8 “A federal court may grant habeas corpus relief to state prisoners only for violations of federal [and not state] law.” Bae v . Peters, 950 F.2d 469, 477 (7th Cir. 1991); 28 U.S.C. § 2254.
19 needless presentation of cumulative evidence.” N.H. R. Evid.
403.
In this case, although cross-examination regarding the
alleged Hallinan encounter itself was neither clearly admissible
(under state law) nor constitutionally required (under federal
l a w ) , some probing of the purported false accusation would have
been highly probative while violating no law or rule of evidence.
Generally, if this line of questioning is allowed by the court,
the cross-examiner must accept the answer as the witness gives it
and is prohibited from introducing extrinsic evidence, or
“evidence other than the witness’s own answers on cross-
examination.” Miller, 155 N.H. at 250. I f , however, a defendant
in a sexual assault case is able to show by clear and convincing
evidence that the putative complainant has previously made
“demonstrably false” allegations, the evidentiary rules shift in
favor of admissibility. White, 399 F.3d at 2 6 . Upon a clear
demonstration of falsity, the trial court is not only permitted,
but is “constitutionally required to permit this cross-
examination.” Miller, 155 N.H. at 250 (emphasis in original).
The court may, in its discretion, permit the introduction of
extrinsic evidence, White, 399 F.3d at 2 6 , albeit subject to the
overriding protection of Rule 403, discussed supra.
20 Here, the trial court was proffered highly detailed and
credible (albeit inferential)9 evidence of an allegedly false
accusation of sexual assault following an alleged non-forcible,
semi-public sexual encounter. The record contains no suggestion
that the source of this evidence, Hallinan, was biased in favor
of Chretien or prejudiced against the complainant. Since the
prosecution of the case involved somewhat similar circumstances,
and a consent defense had been asserted, the trial court should
have taken steps to determine the nature and extent of the
evidence’s probative value.
One such step would have been a pretrial evidentiary
hearing, commonly referred to in New Hampshire state courts as a
“Howard hearing,” limited to questioning the complainant about
whether the Hallinan accusation (as opposed to the sexual
encounter) occurred, and if s o , whether it was false.10 At that
point, by balancing the various rules, requirements, and purposes
of New Hampshire Rules of Evidence 402, 403, 412, and 608(b), as
well as the Sixth Amendment, the trial court would have been in a
9 See supra at n . 5 . 10 The hearing is named for the Howard decision. 121 N.H. 5 3 , 426 A.2d 457. Technically, a hearing limited to the allegedly false accusation of Hallinan might not constitute a true “Howard hearing” in that it would not directly focus on any alleged sexual conduct of the complainant.
21 better position to determine the trial admissibility of the
cross-examination, and what effect the complainant’s answers may
have had, if any, on the admissibility of other evidence
proffered by Chretien. “Evidence suggesting a motive to lie,”
such as explaining a regretted extramarital sexual encounter to a
spouse, “has long been regarded as powerful evidence undermining
credibility, and its importance has been stressed in Supreme
Court confrontation cases.” White, 399 F.3d at 2 6 ; see, e.g.,
Olden, 488 U.S. at 231; Van Arsdall, 475 U.S. at 680; Davis v .
Alaska, 415 U.S. 308, 319 (1974). As the First Circuit stated in
White:
If the witness were prepared to admit on the stand that a prior accusation of similar nature was false, it is hard to imagine good reason for excluding the evidence. Prior admitted lies of the same kind in similar circumstances could powerfully discredit the witness. No time-consuming excursion beyond the witness would be required. Further, the accusation being conceded to be untrue, inquiry would not require the witness to admit to prior sexual activity or assault. The difficulties arise when it is assumed that the witness will make no such admission of past lies.
399 F.3d at 25. 11
11 The trial court did in fact note in its order on Chretien’s second motion for a new trial that “[t]he alleged victim subsequently denied any sexual contact with this adult male.” New Hampshire v . Chretien, Rockingham County, N o . 04-S 774, slip op. at 1 (Oct. 2 3 , 2006). The record contains no
22 Due to the sexual nature of the allegedly false accusation,
and therefore the danger of unfair prejudice to the complainant
in a sexual assault case, (see N.H. R. Evid. 403, 412) the scope
of the cross-examination that should have been permitted, if any,
is not clear based on the superior court record. See United
States v . Crowley, 318 F.3d 401, 416-17 (2d Cir. 2003) (court
authorized to limit cross-exam of sexual assault victim
concerning false accusations where risk of unfair prejudice and
confusion outweighed its probative value); see also Redmond v .
Kingston, 240 F.3d 590, 591-92 (7th Cir. 2001) (prior false
accusation provided powerful reason to disbelieve alleged
victim’s testimony); Depetris v . Kuykendall, 239 F.3d 1057, 1062
(9th Cir. 2001) (where defendant’s guilt hinged largely on
testimony of prosecution witness, exclusion of impeachment
evidence critical to assessing witness’s credibility violated
confrontation clause); United States v . Stamper, 766 F. Supp.
1396, 1405 (W.D.N.C. 1991) (“Evidence of prior false allegations
is so probative of the central issue in a rape case that to
exclude it might deny evidence critical to the defense”). But a
indication, however, of how the court came by that information (i.e. a prosecutor’s proffer, police report, in-chambers comment, e t c . ) . It does not appear that it came from deposition, courtroom testimony during a “Howard hearing” or other proceeding, affidavit, or any other recorded presentation to the court.
23 pretrial evidentiary hearing or deposition would have aided the
trial court in making that determination, as well as the New
Hampshire Supreme Court in reviewing it. 12 Also, as alluded to
supra, the question of the admissibility of extrinsic evidence
relating to the accusation, while excluded under a strict Rule
608(b) analysis, could be reopened if the accusation was shown to
be demonstrably false. White, 399 F.3d at 2 6 .
Ultimately, the record before the court is insufficient for
the court to render a decision on the Warden’s motion for summary
judgement with respect to the cross-examination claim. The
ruling here, however, is not that the complainant in this case
12 Such a pretrial hearing might have seemed futile or unnecessary to the trial court given its observation that:
[T]his Court was the finder of fact in this case, not a jury. Thus this Court was aware of the allegation of subsequent sexual activity by the alleged victim and another adult male and determined it not to be relevant to any issue in the case. This is not a situation where if a jury knew about the subsequent act, the jury might have looked upon the alleged victim’s credibility with a jaundiced eye.
New Hampshire v . Chretien, Rockingham County, N o . 04-S-774, slip op. at 2 (Oct. 2 3 , 2006). This observation, however--that the trial court itself, and not the jury, was the trier of fact--cuts both ways. Even if minimally relevant and highly prejudicial information had been elicited from the complainant, the trial court, experienced in matters of preliminary admissibility determination and admissibility for limited purposes, see N.H. R. Evid. 104, 105, would not have been influenced by it to Chretien’s detriment.
24 should have been required to undergo cross-examination regarding
an unrelated sexual encounter; rather, it is that on the state
court record before the court, it is impossible to determine
whether, and to what extent, cross-examination regarding an
allegedly similar, allegedly false accusation should have been
permitted. This court is left with no choice but to make that
determination with the tools and procedures available to it in
the form of an evidentiary hearing (closed to non-parties, if
requested, in order to protect the complainant’s privacy) 13 with
strict limitations on the scope of such cross-examination. Fed.
R. Hab. Corp. 8 ( a ) . See 28 U.S.C. § 2254(e)(2); Townsend v .
Sain, 372 U.S. 293, 312 (1963) (partially overruled by Keeney v .
Tamayo-Reyes, 504 U.S. 1 , 11-12 (1992), on other grounds)
(applicant for federal habeas entitled to evidentiary hearing
where “it appears the state trier of fact did not afford the
habeas applicant a full and fair hearing”).
CONCLUSION
For the reasons stated above, summary judgment is granted in
part and denied in part. Summary judgment is granted to the
Warden with respect to Chretien’s extrinsic evidence-based claims
See Howard, 121 N.H. at 5 9 .
25 raised under the Fourteenth Amendment. The motion is denied on
the cross-examination-based claims raised in the petition. An
evidentiary hearing will be scheduled by the Clerk to address the
issues raised in this order. As guidance to the parties, the
court leaves open for argument, as part of that hearing: (1) the
breadth of the cross-examination, if any, relating to the
allegedly false accusation that should have been allowed under
Rule 403; (2) whether, under White, it can be shown that the
prior accusation, if it occurred, was demonstrably false; and (3)
whether, if the hearing established that “preserved
constitutional error” occurred, the error had a “substantial,
injurious effect” on the court’s verdict, or merely constituted
harmless error. See Sanna v . Dipaolo, 265 F.3d 1 , 14 (2001).
The petitioner shall file a witness list ten days prior to
the hearing date in the Clerk’s scheduling order, and the
respondent shall file a witness list seven days before the
hearing date. Upon a request by the respondent’s counsel or a
representative of the complainant’s interests, the courtroom
shall be closed to non-parties to the underlying state court
proceeding.
26 SO ORDERED.
y^^/siTgb Joseph N. Laplante United States District Judge
April 2 1 , 2008
cc: Brian R. Graf, Esq. Thomas J. Gleason, Esq. Scott F. Gleason, Esq.