Pettiway v. Vose

921 F. Supp. 61, 1996 U.S. Dist. LEXIS 4598, 1996 WL 172402
CourtDistrict Court, D. Rhode Island
DecidedApril 8, 1996
DocketCivil Action No. 95-0514ML
StatusPublished
Cited by2 cases

This text of 921 F. Supp. 61 (Pettiway v. Vose) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pettiway v. Vose, 921 F. Supp. 61, 1996 U.S. Dist. LEXIS 4598, 1996 WL 172402 (D.R.I. 1996).

Opinion

MEMORANDUM AND ORDER

LISI, District Judge.

This matter is before the court on the objection of the plaintiff, Ansley Pettiway (Pettiway), to a Report and Recommendation filed by United States Magistrate Judge Robert W. Lovegreen. The Report and Recommendation counsels that Pettiway’s habeas corpus petition should be dismissed because Pettiway has not shown that the violation of his Sixth Amendment right of confrontation had “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239,1253, 90 L.Ed. 1557 (1946)). Pettiway contends that the Magistrate Judge failed to weigh the force of certain excluded testimony against the strength of the inculpatory evidence offered at trial. This court adopts the Magistrate Judge’s Report and Recommen[62]*62dation subject to the ensuing discussion and modification.1

I. Background

Pettiway was convicted of one count of first-degree child-molestation sexual assault and one count of second-degree child-molestation sexual assault. State v. Pettiway, 657 A.2d 161, 162 (R.I.1995). A person is guilty of first-degree child molestation if “he or she engages in sexual penetration with a person fourteen (14) years of age or under.” RJ.Gen. Laws § 11-37-8.1. Sexual penetration is defined as “sexual intercourse, eunnilingus, fellatio, and anal intercourse, or any other intrusion, however slight, by any part of a person’s body or by any object into the genital or anal openings of another person’s body, but emission of semen is not required.” R.I.Gen. Laws § 11-37-1(8). A person is guilty of second-degree child molestation if “he or she engages in sexual contact with another person fourteen (14) years of age or under.” R.I.Gen.Laws § 11-37-8.3. Sexual contact is defined as the “intentional touching of the victim’s or accused’s intimate parts, clothed or unclothed, if that intentional touching can be reasonably construed as intended by the accused to be for the purpose of sexual arousal, gratification, or assault.” R.I.Gen.Laws § 11-37-1(7). Intimate parts are defined as the “genital or anal areas, groin, inner thigh, or buttock of any person or the breast of a female.” R.I.Gen.Laws § 11-37-1(3).

On direct appeal, Pettiway argued that his constitutional rights were violated as a result of the trial justice’s limitation of cross-examination of the complaining witness. Pettiway, 657 A.2d at 162. Specifically, the trial justice refused to admit into evidence a Department of Children, Youth, and Families’ report in which the complaining witness reportedly told a Department of Children, Youth, and Families’ investigator that she had been sexually abused by two other men subsequent to the molestation by Pettiway. Id. at 163. The trial judge also refused to allow defense counsel to question the victim about these allegations. Id. The Rhode Island Supreme Court held that although the trial justice’s evidentiary rulings had violated Pettiway’s Sixth Amendment right to confrontation, such error was “harmless beyond a reasonable doubt.” Id. at 164.

Pettiway now contends that the Magistrate Judge failed to apply the correct legal analysis to the allegations contained in his habeas corpus petition. Pettiway avers that the Magistrate Judge failed to undertake the required balancing of the force of the excluded evidence against the strength of the state’s case. See Bowling v. Vose, 3 F.3d 559, 563 (1st Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1236, 127 L.Ed.2d 580 (1994). Pettiway argues that had the Magistrate Judge “properly weighed the compelling force of the excluded evidence — that the complainant was unworthy of belief in this case because she was engaged in a pattern of accusing her mother’s boyfriends of molesting her — against the equivocal and weak evidence produced by the state, he would have come to the inescapable conclusion that the Sixth Amendment violation indeed had a substantial and injurious effect or influence in determining the jury’s verdict.” Petitioner’s Memorandum In Support Of Objection to Report and Recommendation at 3-4. This court disagrees with Pettiway’s sweeping allegation.

Both parties agree that Pettiway’s Sixth Amendment right of confrontation was violated. It is well settled, however, that a trial-type constitutional error “must have been sufficiently prejudicial” to Pettiway’s rights to warrant habeas relief. Bowling, 3 F.3d at 562. In order to reach this “sufficiently prejudicial” threshold the habeas petitioner must show that the prejudicial error had “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht, 507 U.S. at 623, 113 S.Ct. at 1714 (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253). Where testimony has been unconstitutionally excluded, the First Circuit has further defined the Brecht standard, refining [63]*63the inquiry to entail “a determination of the exact nature and force of [the excluded] 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 in [the] case____” Bowling, 3 F.3d at 563.

II. Discussion

a. Inculpatory Evidence

In order to apply the Bowling test, this court must examine the inculpatory evidence adduced at trial. There were three primary sources of inculpatoiy evidence: the victim’s testimony, Pettiway’s written confession, and Pettiway’s oral confession to the Warwick police. The inculpatory evidence is summarized as follows.

The victim’s testimony described eleven incidents of sexual molestation by Pettiway. Pettiway, 657 A.2d at 162. She described one incident in 1989 where Pettiway touched her breast and penetrated her vagina with his fingers. Id. In his written confession Pettiway admitted to digital penetration of the victim’s vagina and touching the breast of the victim. Id. at 163. Pettiway also admitted that he “touch [sic] her 3 times.” In addition to the victim’s testimony and Pettiway’s written confession, the jury heard testimony from two Warwick police detectives who arrested Pettiway and took his confession. Both detectives testified that Pettiway was advised of and waived his constitutional rights. During questioning by the detectives, Pettiway admitted to sexually touching and digitally penetrating the victim. Pettiway’s admissions were subsequently reduced to writing and that writing was introduced as the confession discussed above.

b.

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Related

Pettiway v. Vose
First Circuit, 1996

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Bluebook (online)
921 F. Supp. 61, 1996 U.S. Dist. LEXIS 4598, 1996 WL 172402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pettiway-v-vose-rid-1996.