Platt v. State of Maine

• Court: Court of Appeals for the First Circuit
• Decided: November 4, 1999
• Docket: 99-1056
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 99-1056

THOMAS PLATT,

Plaintiff, Appellant,

v.

THE STATE OF MAINE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Torruella, Chief Judge,

Cyr, Senior Circuit Judge,

and Hill, Senior Circuit Judge.

John A. Ciraldo, with whom Jennifer L. Sanders and Perkins, Thompson, Hinckley & Keddy were on brief for appellant. Charles K. Leadbetter, Assistant Attorney General, with whom Andrew Ketterer, Attorney General, and Donald W. Macomber, Assistant Attorney General, were on brief for appellee.

NOVEMBER 4, 1999 CYR, Senior Circuit Judge. Thomas Platt appeals from a district court order which dismissed his petition for a writ of habeas corpus. See 28 U.S.C. 2254. We affirm. I BACKGROUND In the early morning hours of July 17, 1994, two persons wearing camouflage net masks entered the office of the Econo-Lodge in Bangor, Maine, accosted the desk clerk with a knife, and made off with $1000 in cash. In due course, Platt and his friends, Robert King and Dale Braley, were arrested and charged with Class A robbery under Maine law. After entering into plea agreements with state and federal prosecutors, King and Braley were sentenced to lengthy prison terms. At Platt's state court trial, King invoked the Fifth Amendment on the ground that he could be placed in jeopardy of future federal prosecution. The trial judge accordingly declared King an unavailable witness and the State introduced the transcript of a January 1995 police interview in which King described how he and Platt had robbed the Econo-Lodge while Braley waited in the car. In order to safeguard Platt's rights under the Confrontation Clause, see Bruton v. United States, 391 U.S. 123 (1968) (admission of nontestifying codefendant's statements incriminating the defendant violates Confrontation Clause), the King statement was redacted to replace references to "Platt" with two asterisks (**). When the King statement was read to the jury the two asterisks were referred to as "some person." Dale Braley testified that Platt and King had entered the motel while Braley waited in his car. After Platt was convicted and sentenced to twelve years in prison, the Maine Supreme Judicial Court rejected his Bruton- based appeal in State v. Platt, 704 A.2d 370 (Me. 1997). Three days before the SJC decision became final, however, the United States Supreme Court had issued its decision in Gray v. Maryland, 118 S. Ct. 1151 (1998), which held that the use of incriminating statements obtained from nontestifying codefendants violates the defendant's right of confrontation even though the prosecution redacts their statements by replacing the defendant's name with a neutral symbol. Id. at 1157. Thereafter, Platt petitioned for habeas corpus relief in federal district court, contending that Gray required reversal of his state-court conviction. Although the district court denied the petition, it issued a certificate of appealability. II DISCUSSION A. The Federal Habeas Corpus Standard The Antiterrorism and Effective Death Penalty Act of 1996 narrowed the conditions in which state-court convictions may be reviewed in federal habeas corpus proceedings, by providing that the writ not be granted unless the state court's "adjudication of the claim . . . 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) (emphasis added). See O'Brien v. Dubois, 145 F.3d 16, 24 (1st Cir. 1998). The parties agree that the admission of King's redacted statement into evidence violated Platt's rights under the Confrontation Clause if the Gray decision itself then constituted a "clearly established" Supreme Court precedent. But the parties disagree as to whether section 2254 requires that the pertinent Supreme Court precedent need have been decided by the time the state court rendered its confrontation-clause ruling, or thereafter but before the state-court conviction became "final." Although Platt was tried prior to the Gray decision, the state-court judgment did not become final until March 12, 1998, three days after Gray was decided. On an earlier occasion we deferred a ruling on this issue of first impression. See id. at 20 n.3. We now do so once again, as the admission of the King statement into evidence amounted at most to harmless error. B. Harmless Error Platt argues that admission of the King statement was not harmless error, since the remaining evidence of his complicity in the Econo-Lodge robbery was not trustworthy. The burden rests with the State to establish that the putative Bruton-Gray error had no "'substantial and injurious effect or influence in determining the jury's verdict,'" or that it "was [not] of such magnitude that it actually casts doubt on the integrity of the verdict." Sinnott v. Duval, 139 F.3d 12, 15 (1st Cir. 1998) (citation omitted). Normally, we focus our analysis on three criteria: "(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." Levasseur v. Pepe, 70 F.3d 187, 193 (1st Cir. 1995). 1. The Robert King Statement At a post-arrest interview in January 1995, Robert King provided the following version of the Econo-Lodge robbery: On the evening of July 16, 1994, King and his friends, Dale Braley and Timothy Boudreau, were driving around Bangor in Boudreau's car when the police stopped the car and ticketed Boudreau for drag racing. Thereafter, Dale Braley and King left Boudreau and met "some person" (viz., Platt). Not long after this threesome began driving around Bangor in Braley's car, Platt suggested they rob the Econo-Lodge, claiming that he knew the clerk on duty and they could get "big bucks." Upon their arrival at the motel, King and Platt donned camouflage net masks or rubber Halloween masks, retrieved from Platt's red duffel bag. Platt was carrying a knife. Dale Braley, the driver, waited in his car. When Platt and King confronted the motel clerk, she became frantic, which upset King, who had understood from Platt's earlier assertions about "knowing" the clerk that the robbery would be an "inside deal" and "real easy." After Platt brandished the knife and forced the clerk to open the cash register, he and King returned to the Braley car. Later, Platt divided the loot three ways. As the State acknowledges, Robert King's statement readily met the second of the three Levasseur tests the centrality of the issue implicated by the error since there can be no real question but that the jury would have understood "some person" as a reference to "Platt." See Gray, 118 S. Ct. at 1156 (holding that, as a "class," this sort of redacted statement poses too great a risk that the factfinder may presume that the unnamed actor was the defendant). Since the Econo-Lodge clerk could neither identify the two robbers, nor state whether a third participant had remained in the Braley car, the central dispute at trial was whether Platt or some other masked person (viz., Dale Braley) had accompanied Robert King into the motel office. Thus, the King statement was directly on point. 2. The Pervasiveness of the Error and the Relative Strength of Other Evidence

The fact that the Robert King statement implicated Platt is not necessarily dispositive of the harmless-error inquiry. Rather, the third criterion "the relative strengths of the cases for the prosecution and the defense absent the offending evidence" is "the major test of harmlessness." Sinnott, 139 F.3d at 18. As the other evidence of Platt's complicity altogether aside from the King statement overshadowed and undermined all defense theories, we conclude that the putative Bruton-Gray error did not "permeate[] the [state-court] proceeding." Levasseur, 70 F.3d at 193. a) Kim Stark Kim Stark, the clerk on duty at the Econo-Lodge on July 17, 1994, provided the following eyewitness version of the robbery: At 2 a.m., two persons entered the office while she was on the phone. Each wore a mask made of mesh netting. One wore a hooded camouflage shirt (State's Exhibit 17), had "dark eyes," wore no eyeglasses, spoke in a voice Stark did not recognize, wore gloves, and threatened her with a knife. The second robber, who did not speak, wore a blue-striped sweatshirt (State's Exhibit 1: blue- striped sweatshirt with the words "Old Orchard Beach, USA" on front). The second robber removed approximately $1000 in cash from the register. Stark was unable to identify either robber. She knew Platt as a friend of a friend, and remembered having spoken with him on June 29, 1994, when he was an overnight guest at the Econo-Lodge. b) Dale Braley The State's other eyewitness to the robbery was codefendant Dale Braley, who gave the following account: In July 1994, he shared a Bangor apartment with his fiancee, Wendy, his brother Donald Braley, Thomas Platt, and Platt's girlfriend, Angela Turner. On the evening of July 16, 1994, Braley and his friend Robert King were riding on Main Street in Bangor with Tim Boudreau at the wheel. After Boudreau was ticketed for drag racing, he drove to a nearby auto parts store where he parted company with Braley and King. Thereafter, Braley and King met Platt, and the three drove off in Braley's car. Platt suggested that they rob the Econo-Lodge because he knew the woman who worked there. A maroon duffel bag (with white handles), which Platt had borrowed from Angela Turner, was visible in the back seat of the Braley car. The duffel bag contained "a couple of camouflage suits, couple of hats, shirts, [and] some tools." Braley testified that these items had been "used in previous jobs [viz., robberies]." While Braley waited in his car, Platt and King went into the motel. King was wearing a "camouflage net suit"; Platt an Old Orchard Beach sweatshirt. Braley could not recall either Platt or King donning any other clothing before leaving the car, nor removing the knife from the glove compartment. Three or four minutes later, Platt and King ran out of the motel. Braley then drove them to Tim Boudreau's house, where they left the duffel bag. The robbery accounts provided by Robert King, Kim Stark and Dale Braley thus plainly disclosed remarkable similarities. Although improperly admitted evidence will be considered harmless if merely cumulative of properly admitted evidence, see, e.g., United States v. Adams, 74 F.3d 1093, 1099 (11th Cir. 1996), Platt focuses on what he considers a crucial discrepancy: Robert King stated that he and Platt had donned the masks which were in the duffel bag, whereas Dale Braley did not see them do so. Thus, Platt argues, the King statement was more consistent with the descriptions of the robbers given by Kim Stark, the Econo-Lodge clerk; and, without the King statement, the jury would not have voted to convict based on Braley's inconsistent testimony. Since Dale Braley's testimony did not necessarily conflict with that of Kim Stark, however, we conclude that it had no "substantial and injurious effect" on the verdict. First, Braley acknowledged that Platt's duffel bag containing "[a] couple of camouflage suits" was in the back seat of the Braley car. Accordingly, no inconsistency existed, since the term "camouflage suits" amply embraces camouflage masks. Furthermore, Dale Braley neither testified that King and Platt had not retrieved the masks from the duffel bag, nor that they had not worn masks or carried a knife into the motel. Rather, Braley testified that he could not recall seeing Platt and King retrieve or put on masks. Nor did King state that he and Platt either donned the masks while in or near the Braley car, or that Braley had an opportunity to observe them retrieving or donning masks. Thus, the Dale Braley testimony did not contradict Kim Stark's statement that the robbers wore masks while inside the motel. Platt next contends that the jury must have rejected the Braley testimony (i) as unreliable, since he admittedly gave the police different versions of the crime, and (ii) as self-serving, since he received a reduced sentence for cooperating with the State. Neither contention withstands scrutiny. Braley conceded that he lied to the police at the outset in order to conceal his own involvement in the robbery, but decided to confess in November 1994 after hearing rumors that other witnesses had implicated him. Moreover, in no subsequent interview did Braley fail to implicate Platt as the third participant in the motel robbery. Furthermore, although the defense impeached Braley with his prior criminal record, and thoroughly explored the terms of the plea agreement, the jury heard testimony that Braley had important reasons not to lie about Platt's involvement: Braley, who was serving a twelve-year prison sentence, with all but six years suspended, acknowledged that perjury would have exposed him to six years' further imprisonment. Braley also testified that he and Platt, a "close friend," shared an apartment in July 1994. Finally, under the harmless-error analysis the critical inquiry is not whether the Braley testimony standing alone was reliable, but whether the jury returned a guilty verdict against Platt solely because the Robert King statement was in evidence. Importantly, the defense impeached the King statement along substantially the same lines as it had done with Braley, introducing evidence of King's plea agreement and prior criminal record (e.g., a 1992 robbery conviction). And the defense adduced evidence that in January 1996 Robert King had given a different account of the robbery, claiming that Platt was not involved. Thus, had the jury found grounds to consider Braley's testimony suspect, it would have had like grounds to reject, as unreliable, the Robert King statement. c) The Corroborative Evidence The State bolstered the Braley testimony with independent corroborative testimony connecting Platt to the motel robbery. In order to substantiate the Braley testimony that Platt knew Kim Stark, the State called both Stark and Dale Braley's brother, Donald, to confirm that Platt had stayed overnight at the Econo- Lodge two weeks prior to the robbery. Stark testified that she had spoken to Platt on that occasion, and that she had met him previously through a friend. Ten days after the Econo-Lodge robbery, an electric company worker found a red corduroy duffel bag with white handles (State's Exhibit 2) behind a tree near Church Road in Bangor. Inside the bag there was a tag bearing the name and address of Platt's girlfriend, Angela Turner, as well as a camouflage net jacket with hood, two camouflage baseball caps fitted with netting masks, some brown gloves, and a Halloween mask. Turner testified that she had loaned the bag to Platt for a trip to Chicago on July 9-11, 1994, that she had not seen it after Platt returned from the trip, and, further, that a friend had supplied Platt with camouflage clothing. Braley testified that Platt had the duffel bag in his possession when Braley and Boudreau picked him up at the airport, and that the same bag was in the back seat of Braley's car on the morning of the robbery. Four days after the duffel bag was found near Church Road, an off-duty detective discovered a plastic shopping bag inside the foundation of a washed-out bridge at the Ohio Street extension in Bangor. Among other items, the bag contained the Old Orchard Beach sweatshirt and a Department of Labor Childcare Certification card bearing the name "Angela Turner." Stark testified that one of the robbers had worn the Old Orchard Beach sweatshirt (State's Exhibit 1); Braley testified that Platt owned the sweatshirt, and had worn it on the day of the robbery. Tellingly, Dale Braley's brother, Donald, testified that Platt had bought the sweatshirt on a recent trip to Old Orchard Beach. Donald also testified that some time after the robbery he had driven to Ohio Street with Platt, Platt's friend, Dennis Sullivan, and Sullivan's girlfriend, Susan Boober where he saw them hide the plastic shopping bag in the bridge foundation. Finally, Timothy Boudreau testified that Platt, King, and Dale Braley had shown up together at Boudreau's apartment on the morning of the robbery, that all three were acting "hyper," and that Platt looked "wide-eyed and attentive." Thus, the corroborating evidence tended strongly to substantiate the Dale Braley testimony that Platt had been the third participant in the Econo-Lodge robbery. d) The Platt Admissions The State also presented four witnesses Angela Turner, Donald Braley, Timothy Boudreau and Susan Boober who testified that Platt had admitted in the presence of each that he had taken part in the Econo-Lodge robbery. These witnesses testified that Platt had volunteered different details relating to the robbery: Platt told Angela Turner that he had used a four-inch knife in the robbery; he told Boudreau that he had used a knife and a camouflage mask, and that he knew the motel clerk. Susan Boober overheard Platt admit to her boyfriend, Dennis Sullivan, that he had used a "butter or jack knife" or a "[small] pocket knife." Platt discounts their testimony as unreliable because they were not eyewitnesses to the robbery. Cf. Sinnott, 139 F.3d at 18-19 (no harmless error where improperly admitted evidence was cumulative of testimony of four nonparty eyewitnesses). Although we found nonparty eyewitness testimony to be compelling in Sinnott, it does not follow that non-eyewitness evidence cannot support a finding of harmless error. Each case is to be judged on its facts. In some circumstances, eyewitness testimony may be untrustworthy; whereas third-party reports of a defendant's self-incriminating statements may prove compelling, as was the case here. Platt did not simply admit criminal complicity to these four individuals on the same occasion; he did so in some detail, on four separate occasions, to nonparty witnesses. Nor does Platt suggest any reason to suppose that any of these nonparty witnesses had a motive to testify falsely against him. Rather, Angela Turner, one of two defense witnesses, had been a reluctant government witness, see supra note 5, who testified not only that Platt was the father of her infant daughter, but that she remained "close" to him and visited him often. Similarly, Boudreau testified that Platt was his friend and that in the fall of 1994 he had not told the police that Platt had admitted his involvement in the Econo-Lodge robbery. Susan Boober, whose relationship with Platt was more attenuated and whose testimony was read back to the jury during its deliberations, had even less apparent motive to testify falsely against him. Thus, the trial record reveals no plausible basis for supposing that these four witnesses, independently or in concert, sought falsely to implicate Platt. 3. Relative Strength of the Defense Platt offered two defense theories. First, the defense suggested that Dale Braley's brother, Donald, who had a prior robbery conviction, committed the Econo-Lodge robbery along with Robert King and Dale Braley, and that Dale falsely implicated Platt to protect Donald. Second, the defense intimated that two persons Robert King and Dale Braley robbed the Econo-Lodge, not three. We conclude that the Robert King statement to the police in January 1995 could not have caused the jury to reject either defense theory. The defense suggested that State's Exhibit 1, the Old Orchard Beach sweatshirt worn by one of the robbers, belonged to Dale Braley's brother, Donald, rather than Platt. Be that as it may, the King statement does not so much as mention the Old Orchard Beach sweatshirt. See supra Section II.B.1. Further, the defense noted that Kim Stark had not seen either robber wearing eyeglasses, whereas Platt always wore his glasses. Once again, however, the King statement never indicated whether or not King's companion had worn eyeglasses. Finally, the defense relied on evidence that Donald Braley had spent one night with Platt at the Econo-Lodge in late June 1994, thus suggesting that Donald may have been the person who told Dale Braley and Robert King on July 17 that he knew the motel clerk. Once again, however, the Robert King statement could not have hobbled this defense theory, since King did not purport to comprehend how his companion had become acquainted with Kim Stark. Nor did King ever suggest that Donald Braley did not know Stark. Finally, Donald Braley acknowledged that he and Platt had stayed at the Econo-Lodge on a previous occasion. Far from hindering the defense, the King statement allowed it to exploit an otherwise unavailable theory that only two people (viz., Dale Braley and King) committed the Econo-Lodge robbery, and that no third person remained outside in the getaway vehicle. Thus, in attempting to impeach the King statement, the defense was allowed to introduce evidence that King had recently recanted his January 1995 statement, and now claimed that Platt was never involved in the robbery. III CONCLUSION For these reasons, we cannot conclude that admission of the redacted King statement into evidence constituted error of such magnitude as to have had a substantial effect on the jury verdict. See Sinnott, 139 F.3d at 15. Accordingly, the district court order is affirmed.