Pettiway v. Vose

• Court: Court of Appeals for the First Circuit
• Decided: November 12, 1996
• Docket: 96-1482
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 96-1482



                                   ANSLEY PETTIWAY,



                                Plaintiff - Appellant,



                                          v.



                               GEORGE A. VOSE, ET AL.,



                               Defendants - Appellees.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                       [Hon. Mary M. Lisi, U.S. District Judge]
                                           ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                            Coffin, Senior Circuit Judge,
                                    ____________________



                             and Tauro,* District Judge.
                                         ______________



                                _____________________



               Janice  M.   Weisfeld,   Assistant  Public   Defender,   for
               _____________________

          appellant.

               Andrea J. Mendes, Special  Assistant Attorney General,  with
               ________________

          whom Jeffry B. Pine, Attorney General, was on brief for appellee.
               ______________


____________________



                                  November 12, 1996

                                 ____________________


____________________



          *  Of the District of Massachusetts, sitting by designation.



TORRUELLA,  Chief Judge.  Defendant-Appellant Ansley S.
                    TORRUELLA,  Chief Judge.
                                ___________



          Pettiway, Jr. ("Pettiway")  was tried and convicted  of one count



          of first degree child molestation sexual assault, R.I.  Gen. Laws



            11-37-8.1,  and one  count of  second degree child  molestation



          sexual  assault, R.I.  Gen.  Laws     11-37-8.3.    He  was  also



          acquitted  of two counts of first  degree and one count of second



          degree child molestation sexual assault.  Pettiway unsuccessfully



          appealed  his conviction to the Rhode Island Supreme Court, State
                                                                      _____



          v. Pettiway, 657 A.2d 161 (R.I.  1995), and then filed for a writ
             ________



          of  habeas corpus  in the  United States  District Court  for the



          District of Rhode Island,  Pettiway v. Vose, 921 F. Supp.  61 (D.
                                     ________    ____



          R.I.  1996).  When the  district court denied  the writ, Pettiway



          filed this appeal.



                                I.  STANDARD OF REVIEW
                                I.  STANDARD OF REVIEW



                    Our review of a  harmless error determination on habeas



          corpus review is  de novo.   See Scarpa v.  Dubois, 38 F.3d 1,  9
                            _______    ___ ______     ______



          (1st  Cir. 1994)  ("mixed questions  of law  and fact  arising in



          section 2254  cases are ordinarily  subject to de  novo review");
                                                         ________



          Levasseur v. Pepe, 70 F.3d 187,  193 (1st Cir. 1993) ("a harmless
          _________    ____



          error determination on  habeas corpus review is  a mixed question



          of law and fact [and] we  examine this issue de novo").  Findings
                                                       _______



          of  fact by  the  state court,  however,  are entitled  to  great



          deference  on federal habeas review.  See 28 U.S.C. 2254(d); Tart
                                                ___                    ____



          v.  Commonwealth of  Massachusetts, 949  F.2d 490, 504  (1st Cir.
              ______________________________



          1990).


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II.  BACKGROUND
                                   II.  BACKGROUND



                    The principal facts of this  case are summarized in the



          opinion of the  state Supreme  Court on direct  review, State  v.
                                                                  _____



          Pettiway,  657 A.2d  161  (R.I. 1995),  and  the opinion  of  the
          ________



          federal district  court on  collateral review, Pettiway  v. Vose,
                                                         ________     ____



          921 F. Supp. 61, 61-62 (D. R.I. 1996), therefore, we present only



          a brief  factual review.  At trial, Pettiway was not permitted to



          enter into  evidence  a report  of  the Department  of  Children,



          Youth, and Families ("DCYF")  which included allegations that the



          victim had been  sexually abused by two other men whom her mother



          had brought home.   These  incidents were alleged  to have  taken



          place  subsequent  to  the abuse  by  defendant.    See State  v.
                                                              ___ _____



          Pettiway,  657 A.2d at 163.  In  addition to the testimony of the
          ________



          victim,  the prosecution relied  on a written  confession and the



          testimony of  two police detectives who stated that Pettiway made



          an oral confession.  Such other facts as may be pertinent will be



          discussed as they arise in this opinion.



                                 III.  LEGAL ANALYSIS
                                 III.  LEGAL ANALYSIS



                    On direct review, the  Rhode Island Supreme Court held,



          and  neither  party  disputes,  that  the  trial  court's  ruling



          limiting  Pettiway's  ability  to cross-examine  the  complaining



          witness    violated   Pettiway's   Sixth   Amendment   right   to



          confrontation.  See  State v. Pettiway, 657 A.2d  at 163-64.  The
                          ___  _____    ________



          state Supreme Court also  concluded, however, that the denial  of


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Pettiway'sright to confrontation was harmless error.  Id. at 164.
                                                                ___



                    We now  review Pettiway's  petition for  habeas corpus.



          In order  to  prevail  Pettiway  must show  that  the  trial-type



          constitutional  error, considered  in light  of the  record  as a



          whole, had a "'substantial and  injurious effect or influence  in



          determining the jury's verdict.'"  Brecht v. Abrahamson, 507 U.S.
                                             ______    __________



          619, 623 (1993)  (quoting Kotteakos  v. United  States, 328  U.S.
                                    _________     ______________



          750,  776 (1946)).   In  Bowling v.  Vose, 3  F.3d 559  (1st Cir.
                                   _______     ____



          1993),   this  Court   stated   that  "the   inquiry  entails   a



          determination  of the  exact nature and  force of  [the] proposed



          testimony  and an  effort  to place  [the]  testimony within  the



          context of  the evidence  as a  whole.  In  short, the  weight of



          [the] testimony  must  be  balanced against  the  weight  of  the



          inculpatory  evidence."   Id. at  563.1   Relevant factors  to be
                                    ___



          considered  in determining  whether  the  jury was  substantially



          swayed by the  error include: "(1) the extent to  which the error



          permeated  the  proceeding,  (2)  the  centrality  of  the  issue



          affected by the error to the  case as actually tried, and (3) the



          relative strength  of the  properly admitted evidence  of guilt."


____________________



          1  Neither party mentioned  in its brief or at oral  argument the

          Antiterrorism and Effective  Death Penalty Act  of 1996, Pub.  L.

          No.  104-132, 110  Stat.  1218, which  amends  the habeas  corpus

          provisions of 28 U.S.C.   2254.  We need not, however, attempt to

          navigate  the amended  statute  in this  case.   Using  the  pre-

          amendment habeas corpus  requirements established by this  Court,

          we  find that  defendant-appellant's request  for relief  must be

          denied.  Because  the amendments make  habeas corpus relief  more

          difficult to obtain, the result would be the same whether  or not

          the  amendments are relevant to this case and whether or not they

          affect our inquiry.



                                         -4-



Levasseur, 70 F.3d  at 193.  We will  follow the approach adopted
          _________



          in Levasseur, considering each of the factors in turn.
             _________


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IV. DISCUSSION
                                    IV. DISCUSSION



                    A.  Prevalence of the error
                    A.  Prevalence of the error



                    The  constitutional  error   in  this   case  was   the



          limitation of Pettiway's  right to cross-examine the victim.  The



          victim was interviewed by a child protective investigator for the



          DCYF  in September  1992, after  the indictment of  Pettiway, but



          prior to his trial.  During that interview, she reported that she



          had been  sexually abused by  two other  men that her  mother had



          brought home.  These incidents occurred subsequent to the alleged



          sexual abuse by  Pettiway, and have  been neither prosecuted  nor



          proven false.   See State v.  Pettiway, 657  A.2d 161, 163  (R.I.
                          ___ _____     ________



          1995).



                    Pettiway was not permitted to introduce the DCYF report



          at  trial, nor was he permitted to cross-examine the victim about



          the allegations contained therein.  Id.  Defendant-appellant was,
                                              ___



          however, permitted to



                      confront   Melissa,   his  accuser,   and

                      challenge her  credibility.  Indeed . . .

                      [the] trial justice gave  defense counsel

                      wide  latitude  to cross-examine  Melissa

                      fully   in  regard  to  the  matters  she

                      testified  to  on direct-examination  and

                      . . .  to  explore  in   depth  Melissa's

                      memory about the  incidents of abuse  and

                      her reasons  for not reporting  the abuse

                      sooner.



          Id. at 164.
          ___



                    Pettiway claims that  the excluded evidence  would have



          enabled  him  to  challenge  the credibility  of  the  victim  by



          demonstrating a  pattern of  accusing her mother's  boyfriends of



          sexual abuse.



                                         -6-



B.  Centrality of the issue affected by the error
                    B.  Centrality of the issue affected by the error



                    By  limiting  the  cross  examination  of  the  victim,



          Pettiway claims, the trial justice affected the defense's ability



          to challenge her credibility.   We recognize that this  case was,



          in part, a credibility contest  between the victim and  Pettiway.



          In  this sense, the right to  confront and attempt to impeach the



          victim was central to the defense.  Our inquiry does not end with



          this determination, however.  It is not enough to simply say that



          credibility was an important question,  we must also consider the



          impact of the error on the credibility issue.



                    We are not persuaded that  testimony to the effect that



          the  victim  claimed  to have  been  abused by  other  men  -- an



          allegation  that   is  very  possibly  truthful   --  would  have



          substantially   affected   the  jury's   credibility  assessment.



          Indeed, it  is possible that such testimony would have emphasized



          to the jury the lack of parental supervision in the household and



          made them more inclined  to believe the testimony of  the victim.
                    ____



          Furthermore,  Pettiway has pointed to no place in the record, and



          has made no argument, to the  effect that the allegations made by



          the victim  were false.  Nor  did he give any  indication that he



          intended to  discredit those allegations  in court.   His current



          position appears to be that the mere mention of other allegations



          of abuse, without any evidence that those allegations were false,



          would  sway  the jury  to the  point  of disregarding  the entire



          testimony of the victim.


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We  also note  that  Pettiway was  not foreclosed  from



          challenging the victim's credibility, but was only prevented from



          pursuing  questions pertinent to the  DCYF report.   It is simply



          too large an inferential leap for this Court to conclude that the



          admission of  this  evidence could  have had  a "substantial  and



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



          Brecht v. Abrahamson, 507 U.S. 619, 637 (1992).
          ______    __________



                    C.  Relative Strength of the properly admitted evidence
                    C.  Relative Strength of the properly admitted evidence



                    The final factor  in the Levasseur test  requires us to
                                             _________



          examine the  strength of the properly admitted  evidence of guilt



          and determine whether "the error substantially affected the jury.



          Was the properly admitted evidence so strong that  it overwhelmed



          the  impact of  the [error]?"   Levasseur,  70 F.3d  at 195.   We
                                          _________



          conclude that it was.   The evidence admitted at  trial consisted



          of: (1)  the testimony of  the victim; (2)  the testimony of  two



          police officers that defendant  made an oral confession;  and (3)



          defendant's written  confession.   See Pettiway v.  Vose, 921  F.
                                             ___ ________     ____



          Supp. at 63.



                    The  victim testified  to  eleven incidents  of  sexual



          molestation.   She  detailed one  incident during  which Pettiway



          touched her  breast and penetrated  her vagina with  his fingers,



          and  she mentioned  several  other, more  general allegations  of



          molestation.    Id.    Both detectives  testified  that  Pettiway
                          ___



          admitted  to  sexually  touching  and digitally  penetrating  the



          victim.  Id.  In his written confession, Pettiway admitted to one
                   ___



          act  of touching the victim's  breast and one  act of penetrating


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her  vagina,  and  stated that  he  touched  her  on three  other



          occasions.   The important point for present purposes is the fact



          that the  confessions and the  victim's testimony all  relate the



          same  incidents  of touching  in detail  --  one touching  of the



          breast  and one  act of  vaginal penetration.   Beyond  these two



          events, the testimony and the written confession are both vague.



                    The court submitted five counts of  sexual abuse to the



          jury, and the jury returned  guilty verdicts on two.  Id.  at 64.
                                                                ___



          Pettiway points out that the  jury's verdict mirrors the victim's



          testimony  and contends  that  the  jury  relied solely  on  this



          testimony and  disregarded the allegedly coerced  confession.  In



          light  of  this  fact,  the  defendant's  theory  goes, an  error



          limiting his  ability to  impeach the  credibility of the  victim



          cannot be  harmless.   Appellee  responds that  the jury  verdict



          mirrors  the written  confession  and  claims  that  it  is  this



          evidence that the jury  found compelling.  As a  result, appellee



          argues,  the error  is harmless  because it  relates only  to the



          testimony of the victim.



                    We disagree  that the verdict reflects  a disregard for



          Pettiway's  confession.     The  written  confession,   the  oral



          confession, and  the testimony  of the victim  were substantially



          similar.   This collection of evidence from the two most reliable



          sources  possible -- the victim  and the accused  -- is extremely



          persuasive and the error in this case is simply not consequential



          enough  to undermine this evidence.  First, as pointed out above,



          there  is serious doubt about the probative value of the evidence


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that Pettiway sought to  introduce.  Second, even if  some doubts



          about  credibility could  have been  placed in  the minds  of the



          jury, the  oral  and  written  confessions cannot  so  easily  be



          overcome.  They provide substantial corroboration of the victim's



          testimony and  strong  support for  the verdict  returned by  the



          jury.  Despite the attempts of both parties to present the jury's



          deliberations as focusing on  only one piece of evidence,  we see



          no reason why this must be  so.  The evidence, taken as  a whole,



          is consistent and strongly supports the guilty verdicts.  Even if



          the  victim's testimony  had  been  called  into question  --  an



          outcome  that  strikes us  as unlikely  --  the oral  and written



          confessions   provide   sufficient    evidence   of   guilt   and



          corroboration of  the testimony  to conclude  that the error  was



          harmless.



                    We also feel compelled to address Pettiway's claim that



          the  oral and written confessions  were coerced.   This issue was



          specifically  addressed by the  state court.   The trial justice,



          after a detailed  inquiry into  the claim of  coercion and  after



          hearing evidence on the issue from both sides, wrote:



                         I  do not believe  that this defendant

                      asked   for   an    attorney   in    that

                      interrogation room.   I don't  believe he

                      asked for  a  telephone call,  nor  do  I

                      believe    he    asked   to    stop   the

                      interrogation.

                         I  find   .  .  .  first   the  verbal

                      statements, then  the written statements,

                      were made with  full consent of the  will

                      and  knowingly  and intelligently  waving

                      [sic] all his  constitutional rights  and

                      that  the State  has  now  in my  opinion

                      proven .  . . beyond  a reasonable  doubt

                      . . . [that]  the statements attributable



                                         -10-



to the defendant  were voluntarily  [sic]

                      and not  of any coercion and  that he was

                      afforded all of his constitutional rights

                      and  he knowingly,  intelligently, waived

                      his rights.



          Trial Transcript I at 133-34.



                    Such a finding of  fact by the state court  is entitled



          to  great deference.  See 28 U.S.C. 2254(d); Tart v. Commonwealth
                                ___                    ____    ____________



          of Massachusetts, 949 F.2d  490, 504 (1st Cir. 1990);  Tavares v.
          ________________                                       _______



          Holbrook,  779 F.2d  1,  3 (1st  Cir. 1985).    On habeas  corpus
          ________



          review, we overturn such a finding of fact only if we "conclude[]



          that such factual  determination is not  fairly supported by  the



          record."  28 U.S.C. 2254(d).



                    We find, upon  our own  review of the  record, that  we



          must adopt this  finding of  fact.  Pettiway  claims that he  was



          "under a lot of  pressure . . .  from the doctor" because he  had



          "adult  acne"  and  was taking  tetracycline,  yet  he  failed to



          introduce  any evidence  that  this medication  would affect  his



          judgment.   At trial, he admitted that he was told of his Miranda
                                                                    _______



          rights, and that he understood that he did not have to answer any



          questions.   Despite the fact that he understood these rights, he



          testified that he began  to write the written confession  only "a



          couple of minutes"  after being  advised of those  rights.   With



          reference to  the written  confession, he  stated that he  "wrote



          everything that they told [him] to write."  Trial Transcript I at



          103.   Yet only a  few pages later  in the transcript,  he states



          that  he "can't even be sure" that  he wrote the confession.  Id.
                                                                        ___



          at 106.   If the defendant was aware of his rights, why was it so


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easy for the  detectives to coerce his confession?   How could it



          be that "his  will was completely overborne,"  Brief of Appellant



          at 4, when the entire interrogation  lasted only one hour?  If he



          claimed to have been coerced into writing the confession, why did



          he then  express doubt about having  written it?  Upon  review of



          the record, we conclude that there is ample support in the record



          for  the findings of the  trial court with  respect to Pettiway's



          allegation of a coerced confession.



                                    V.  CONCLUSION
                                    V.  CONCLUSION



                    We   conclude,  therefore,  that  the  Sixth  Amendment



          violation was harmless  error and we affirm  the district court's
                                               affirm
                                               ______



          dismissal of  the habeas corpus  petition.  The  oral confession,



          the written confession, and the testimony of the victim amount to



          a  powerful  body  of  evidence.   We  do  not  believe  that the



          admission of allegations made by the victim about other incidents



          of abuse  could have overcome this  evidence.  The error  did not



          have  a  "substantial  and   injurious  effect  or  influence  in



          determining the jury's verdict."  Brecht, 507 U.S. at 623.
                                            ______


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