Siegfriedt v. Fair

• Court: Court of Appeals for the First Circuit
• Decided: December 23, 1992
• Docket: 92-1731
• Status: Published

Opinion

USCA1 Opinion

December 23, 1992

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

_________________________

          No. 92-1731

                                 KENT A. SIEGFRIEDT,

                                Petitioner, Appellant,

                                          v.

                                    MICHAEL FAIR,

                                Respondent, Appellee.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Mark L. Wolf, U.S. District Judge]
                                           ___________________

                              _________________________

                                        Before

                        Selya, Cyr and Boudin, Circuit Judges.
                                               ______________

                              _________________________

               Brownlow M.  Speer, with  whom Committee for  Public Counsel
               __________________             _____________________________
          Services was on brief, for appellant.
          ________
               Pamela L. Hunt, Assistant  Attorney General, with whom Scott
               ______________                                         _____
          Harshbarger, Attorney General, was on brief, for appellee.
          ___________

                              _________________________

_________________________

SELYA,  Circuit  Judge.   Petitioner-appellant  Kent A.
                    SELYA,  Circuit  Judge.
                            ______________

          Siegfriedt  seeks appellate  review  of an  order  of the  United

          States  District  Court   for  the   District  of   Massachusetts

          dismissing  his application for habeas  relief.  See  28 U.S.C.  
                                                           ___

          2241-2254  (1988).  The issue  presented on appeal  is nominal in

          the  classic sense.  We  must determine whether  the admission at

          trial   of  an  unavailable  witness's  tape-recorded  testimony,

          originally  adduced at  a  probable cause  hearing, violated  the

          defendant's constitutional  rights because the  witness testified

          under  a  pseudonym.   Finding  no  constitutional shortfall,  we

          affirm.

                                          I.
                                          I.
                                          __

                                      Background
                                      Background
                                      __________

                    Because the Massachusetts Supreme Judicial  Court (SJC)

          has painstakingly traced the lay of the land, see Commonwealth v.
                                                        ___ ____________

          Siegfriedt, 402 Mass.  424, 522  N.E.2d 970 (1988),  it would  be
          __________

          pleonastic  to recount  the facts  in great  detail.   We provide

          instead only the bare minimum necessary to place the petitioner's

          appeal into workable perspective.

                    Siegfriedt  was charged  with arson.   At  the probable

          cause  hearing,  an  individual   known  as  Christopher   Martel

          maintained under oath  that Siegfriedt forewarned him of the fire

          and accurately predicted its approximate time of outbreak.  After

          Martel withstood cross-examination  at the hands of  petitioner's

          counsel, the court found probable guilt.

                    By the  time petitioner's  case was reached  for trial,

2

Martel's whereabouts were a mystery.  A diligent search failed to

          locate  him but revealed a previously unknown fact:  although the

          witness had gone by the name of Christopher Martel, his true name

          was  Albert Ciccarelli,  Jr.   The  presiding judge  nevertheless

          admitted Martel/Ciccarelli's  tape-recorded testimony, originally

          delivered  at  the  probable  cause  hearing,  into  evidence  at

          petitioner's trial.1   Thereafter,  the judge allowed  petitioner

          to  impeach the declarant's credibility.  To that end, petitioner

          called two witnesses,  including Martel/Ciccarelli's brother, who

          testified anent the declarant's parlous reputation for veracity.

                    The jury found Siegfriedt guilty.  The SJC affirmed the

          conviction.  Siegfriedt then sought habeas redress.   The federal

          district court  spurned his application but  issued a certificate

          of probable cause under 28 U.S.C.   2253.  This appeal ensued.

                                         II.
                                         II.
                                         ___

                                  Standard of Review
                                  Standard of Review
                                  __________________

                    Petitioner    contends    here,    as   he    contended

          unsuccessfully  below,   that  his  constitutional   rights  were

          abridged when the state court admitted Martel/Ciccarelli's  prior

          recorded testimony into evidence.  This contention evokes a mixed

          question  of  law  and  fact.    Under  the presently  prevailing

          standard, "mixed" constitutional questions are subject to plenary

          review  in federal habeas  proceedings.  See  Chakouian v. Moran,
                                                   ___  _________    _____

          975 F.2d 931, 934  (1st Cir. 1992); see  also Miranda v.  Cooper,
                                              ___  ____ _______     ______
                              
          ____________________

               1Siegfriedt's first trial resulted in a hung jury.  We refer
          here,  and below, only to  the second trial,  at which petitioner
          was found guilty.

                                          3

967  F.2d 392,  401  (10th Cir.)  (affording  de novo  review  to
                                                        __ ____

          district  court's   decision   concerning  adequacy   of   cross-

          examination in state criminal case), cert. denied, 113 S. Ct. 347
                                               _____ ______

          (1992).    Hence,  we   scrutinize  the  denial  of  petitioner's

          application for habeas corpus without special deference either to

          the district  court or to  the state courts on  the central issue

          raised by this appeal.   Withal, we remain "bound by  the [state]

          court's interpretation of  [its] evidentiary law" so long  as the

          record  shows  "a  sufficient  factual  predicate  rationally  to

          support" that court's categorization of the contested evidentiary

          proffer.  Puleio  v. Vose, 830  F.2d 1197,  1204, 1207 (1st  Cir.
                    ______     ____

          1987)  (citations and  internal  quotation marks  omitted), cert.
                                                                      _____

          denied, 485 U.S. 990 (1988).
          ______

                                         III.
                                         III.
                                         ____

                                       Analysis
                                       Analysis
                                       ________

                                          A
                                          A
                                          _

                    The  Confrontation Clause ensures  a criminal defendant

          the  right "to  be confronted  with the  witnesses against  him."

          U.S.  Const. amend.  VI.   This guarantee  applies to  the States

          through the Fourteenth Amendment.  See Pointer v. Texas, 380 U.S.
                                             ___ _______    _____

          400, 403 (1965).  While the guarantee restricts the circumstances

          under  which  a court  may  admit the  statements  of unavailable

          declarants into evidence, the restriction is not  an absolute bar

          since  the  keen  "societal  interest  in  accurate  factfinding"

          necessarily  tempers  the  sweep  of  the  Confrontation  Clause.

          Bourjaily  v. United  States, 483  U.S. 171,  182 (1987).   Thus,
          _________     ______________

4

hearsay  evidence  from  an  unavailable  declarant  may  survive

          exclusion  if the  proponent can  demonstrate that  the proffered

          evidence  "bears  adequate  indicia  of reliability."    Ohio  v.
                                                                   ____

          Roberts,  448  U.S.  56,  66  (1980)  (internal  quotation  marks
          _______

          omitted).  Such indicia can be established either by showing that

          the evidence  "falls within a firmly rooted hearsay exception" or

          by showing that the evidence possesses "particularized guarantees

          of trustworthiness."   Id.; accord  Idaho v. Wright,  110 S.  Ct.
                                 ___  ______  _____    ______

          3139, 3147 (1990) (collecting cases).

                    Former  testimony  in  the  same case  generally  comes

          within  a  recognized  hearsay  exception  if  the  declarant  is

          unavailable  and  the  party  resisting  the  proffer  has had  a

          "complete and adequate opportunity to cross-examine."  California
                                                                 __________

          v.  Green, 399 U.S. 149, 165-66 (1970) (quoting Pointer, 380 U.S.
              _____                                       _______

          at  407); see also Mancusi  v. Stubbs, 408  U.S. 204, 216 (1972);
                    ___ ____ _______     ______

          United  States  v. Zannino,  895 F.2d  1,  5-6 (1st  Cir.), cert.
          ______________     _______                                  _____

          denied, 494 U.S. 1082 (1990); cf. Fed. R. Evid. 804(b)(1).  Here,
          ______                        ___

          the  parties agree that the  tape recording was  generated in the

          same  case and comprised the  prior testimony of  a declarant who

          was  genuinely unavailable at the time of trial.2  They disagree,

          however,  about  the  adequacy  of  the  opportunity  for  cross-
                              
          ____________________

               2The  Court recently  cast doubt  upon the  admissibility of
          prior  testimony in criminal  cases absent a  concrete showing of
          the declarant's unavailability.   See White  v. Illinois, 112  S.
                                            ___ _____     ________
          Ct. 736, 743  (1992) (suggesting,  in dictum, that  a showing  of
          declarant's  unavailability  might  be necessary  to  trigger the
          prior  testimony  exception to  the hearsay  rule because  of the
          constitutional  "preference  for  live testimony").    Given  the
          witness's acknowledged  unavailability in this case,  we need not
          ponder the import of the White dictum.
                                   _____

                                          5

examination.

                    The petitioner claims  that, because  Martel/Ciccarelli

          testified under  an adopted name  at the probable  cause hearing,

          the opportunity for cross-examination  was inadequate as a matter

          of law.   This claim derives from the Supreme  Court's opinion in

          Smith v. Illinois, 390 U.S. 129 (1968).  There, an informant in a
          _____    ________

          drug-trafficking case  testified at trial under  an assumed name.

          When defense  counsel attempted  to ascertain the  witness's true

          name  and address,  the  trial judge  sustained the  prosecutor's

          objections.   The Supreme  Court vacated the  ensuing conviction.

          In  the  Court's view,  the  trial  judge's ruling  impermissibly

          interfered with the defendant's right to confrontation because it

          foreclosed "the opportunity  to place the  witness in his  proper

          setting and put .  . . his  credibility to a test."   Id. at  132
                                                                ___

          (citation and quotation marks omitted).

                    Petitioner interprets Smith  as spawning a  bright-line
                                          _____

          rule    a  rule  which mandates  that,  whatever nuances  may  be

          supplied by the surrounding circumstances, testimony  given under

          an  apocryphal name  can never  be admitted  over objection  in a

          criminal trial.  But, this interpretation effectively ignores the

          Court's   instruction  that   society's   interest  in   accurate

          factfinding  is  to   be  regarded  as  an  important  factor  in

          Confrontation Clause inquiries.  See Bourjaily, 483  U.S. at 182.
                                           ___ _________

          Accordingly,  we decline  to  read Smith  in  the wooden  fashion
                                             _____

          petitioner suggests.

                    Even  before Bourjaily  we  held that  Smith's  guiding
                                 _________                 _____

6

principle, insofar  as it  concerns a witness's  current address,

          "is not, like a  rule of plane geometry,  absolute."  McGrath  v.
                                                                _______

          Vinzant,  528 F.2d 681, 684 (1st Cir.), cert. dismissed, 426 U.S.
          _______                                 _____ _________

          902 (1976).  In  our estimation, the Smith principle,  insofar as
                                               _____

          it concerns  a  witness's true  name, is  likewise not  absolute.

          Accord United States  v. Rangel,  534 F.2d 147,  148 (9th  Cir.),
          ______ _____________     ______

          cert.  denied, 429 U.S. 854  (1976) (Smith "does  not establish a
          _____  ______                        _____

          rigid  rule  of disclosure  [of  a  witness's  name], but  rather

          discusses disclosure against a background of factors") (citations

          and internal quotation marks omitted).

                    The long and short of it is that the Smith standard has
                                                         _____

          a core purpose:   to prevent a  criminal conviction based on  the

          testimony  of  a  witness who  remains  "a  mere  shadow" in  the

          defendant's  mind.  McGrath,  528 F.2d  at 685.   When  that core
                              _______

          purpose  is not  implicated,  we see  no  reason for  reflexively

          excluding  otherwise  admissible  testimony.    Certainly,  Smith
                                                                      _____

          itself  gives no  indication that  its guiding  principle extends

          beyond the confines  of its articulated rationale  into such far-

          flung galaxies.  See Smith, 390  U.S. at 132 (explaining that the
                           ___ _____

          defendant must be accorded a fair opportunity to place an adverse

          witness  in the witness's proper setting and to put his testimony

          and credibility to a meaningful test).

                    Against this backdrop, it  is readily apparent that all

          pseudonyms are not equal in the eyes of the Confrontation Clause.

          Rather, courts must gauge the pull of Smith in any  given case by
                                                _____

          the  degree to  which its  rationale applies.   Sometimes,  as in

7

Smith itself, a witness's use of a fictitious name will transform
          _____

          him  into  a wraith  and thereby  thwart  the efficacy  of cross-

          examination.  Other times, the  use of a fictitious name will  be

          no  more  than a  mere  curiosity,  possessing no  constitutional

          significance.3

                                          B
                                          B
                                          _

                    The case at hand is at a substantial remove from Smith.
                                                                     _____

          In  Smith, unlike here, the  witness adopted a  pseudonym for the
              _____

          sole purpose of testifying.  In Smith, unlike here, the defendant
                                          _____

          did not know the witness's true identity before the jury returned

          its  verdict.  In Smith, unlike here, the witness's anonymity was
                            _____

          the  direct result  of  government contrivance.    We find  these

          distinctions  more than  sufficient to  propel this  case  out of

          Smith's precedential orbit.
          _____

                    1.      In this  situation,  the name  under which  the
                    1.   

          witness  testified  (Christopher  Martel) was  not  some  passing

          cognominal fancy assumed  solely for the purpose of  the judicial

          proceeding and bearing no relation  to the witness's life outside

          the courthouse.  To the contrary, this was a name the witness had

          clasped to his  bosom and made his own.   He held himself  out to

____________________

               3Petitioner's  insistence upon a bright-line rule, slavishly
          followed,  could  produce a  bizarre  anomaly.   One  can  easily
          envision circumstances  in which  a witness testifying  under his
          birth name might present a  much more spectral figure than  if he
          or  she  testified  under an  adopted  name.    For example,  the
          appellations Issur  Danielovitch Demsky,  Betty Joan Perske,  and
          Marion Michael Morrison  will probably be  of less assistance  in
          placing the  affected individuals  in their proper  settings than
          their  screen names (Kirk Douglas, Lauren Bacall, and John Wayne,
          respectively).

                                          8

the  world   as  Christopher  Martel;  he   was  identifiable  in

          Siegfriedt's community by  that name;  and he was  known by  that

          name  at his  own  address     an  address  which  he  accurately

          recounted   in   the   course    of   his   testimony.      Thus,

          Martel/Ciccarelli was  not some  incorporeal apparition    as was

          his ostensible counterpart in Smith   but a flesh-and-blood human
                                        _____

          being easily placed within his relevant context.

                    2.   At the probable cause hearing, petitioner was able
                    2.

          effectively  to question  the  declarant qua  Martel.   Moreover,

          because petitioner  discovered the  witness's true name  prior to

          trial, he  was able  effectively to  investigate and  impeach the

          declarant qua Ciccarelli.   He took full advantage of  both these

          opportunities, in  the  first  instance  through  lengthy  cross-

          examination  and in the  latter instance by  calling witnesses to

          debunk the declarant's reputation for truthfulness.  The goals of

          Smith's guiding principle    placing  the witness  in his  proper
          _____

          setting  and  putting  his credibility  to  a  fair  test    were

          satisfied.  See  generally United States v.  McLaughlin, 957 F.2d
                      ___  _________ _____________     __________

          12,  17 (1st  Cir. 1992)  (explaining that  the main  purposes of

          cross-examination  are to  impeach  credibility and  to expose  a

          witness's biases and possible motives for testifying) (collecting

          cases); see also Clark  v. Ricketts, 958 F.2d 851, 855  (9th Cir.
                  ___ ____ _____     ________

          1991)  (discerning  no  Confrontation  Clause  violation  despite

          informant's  refusal  to   reveal  his  name  while   testifying;

          defendant knew  the witness's  name before trial  and, therefore,

          had an opportunity to  conduct both an out-of-court investigation

9

and  an in-court  examination),  cert.  denied,  101 S.  Ct.  796
                                           _____  ______

          (1992).

                    3.  In Smith, the defense failed to learn the witness's
                    3.     _____

          true name and  address because government actors   the prosecutor

          and the  judge    combined to  block its  access to  the witness,

          thereby  restricting  the  scope  of  cross-examination.    Here,

          however,  there  is  no   suggestion  that  the  State   knew  of

          Martel/Ciccarelli's   hidden  identity   at  the   time  of   the

          preliminary  hearing  or  that   the  presiding  judge  sustained

          objections   or   otherwise  imposed   any   Smith-related  scope
                                                       _____

          restriction on  cross-examination.   That  the  cross-examination

          conducted   by    petitioner's   attorney   failed    to   reveal

          Martel/Ciccarelli's birth name was not in any way attributable to

          official conduct.

                    We believe that this distinction is significant because

          "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. 15, 20 (1985) (per curiam).  This
          ________    _________

          precept applies even when the witness himself is unequivocally to

          blame for  the relative ineffectiveness of the cross-examination.

          See  id. at 19 (discussing  a situation where  a witness's memory
          ___  ___

          lapse  prevented  him  from  answering  potentially  discrediting

          questions).   We do not think this precept diminishes in vitality

          simply because  the  defense's opportunity  to cross-examine  the

          declarant arises at  a preliminary hearing.  See,  e.g., Roberts,
                                                       ___   ____  _______

10

448 U.S.  at 73 n.12 (indicating that,  under such circumstances,

          "no inquiry  into  'effectiveness' is  [ordinarily]  required").4

          Because  petitioner  questions the  effectiveness  of  the cross-

          examination rather than an undue, State-imposed limitation on its

          scope,  he is  hard  pressed to  contend  that Smith  requires  a
                                                         _____

          reversal here.

                    4.  When  this case is  judged by the  totality-of-the-
                    4.

          circumstances test that proper application of the Smith principle
                                                            _____

          requires,  it readily  passes constitutional  muster.5   We hold,

          therefore,  that  Martel/Ciccarelli's  use  of an  alias  at  the

          probable  cause  hearing  did  not,  without  more,  render  that

          testimony inadmissible at a later proceeding in the same case.

                                          C
                                          C

                    Once   the   Smith   hurdle  is   cleared,   this  case
                                 _____

          unquestionably   meets  the   Roberts  criteria.     Apart   from
                                        _______

          Martel/Ciccarelli's unique  brand of  name-dropping, there  is no

          basis  for  any suggestion  that  the  defense's opportunity  for

          cross-examination was  incomplete  or inadequate.    The  witness

          testified under  oath, before a judge,  and in the same  case.  A
                              
          ____________________

               4The Roberts Court indicated that an exception might lie for
                    _______
          extraordinary cases in which defense counsel provided ineffective
          assistance at the  earlier hearing.  See Roberts, 448  U.S. at 73
                                               ___ _______
          n.12,  In  the case at hand,  however, appellant has advanced  no
          such claim.

               5Although  we  deem  the  three main  points  of  divergence
          between this case and  Smith, see text supra, to be important, we
                                 _____  ___      _____
          emphasize that Smith must be  applied in a case-specific fashion,
                         _____
          having  in mind the entire array of circumstances that attend the
          testimonial  proffer  in  any  given  situation.    We   do  not,
          therefore,   assign   decretory   significance   to   any  single
          distinguishing factor.

                                          11

verbatim record  of the  proceedings was  contemporaneously made.

          The  defendant was  represented  by counsel.    His attorney  was

          permitted  to  cross-examine without  undue  restriction.   Under

          these circumstances,  we find that the  state court appropriately

          classified the  tape recording  within the hearsay  exception for

          prior testimony of an unavailable declarant.  See Green, 399 U.S.
                                                        ___ _____

          at 165-66.

IV.
                                         IV.
                                         ___

                                      Conclusion
                                      Conclusion
                                      __________

                    We need go no further.  With Juliet we ask "What's in a

          name?" and with  her we conclude "[t]hat which we  call a rose by

          any other name would  smell as sweet."  W. Shakespeare, Romeo and
                                                                  _________

          Juliet, Act II, Sc. ii.  Though the State's witness had one legal
          ______

          name, he was not made a  phantom to the defense merely because he

          testified  at the preliminary hearing under a name he had assumed

          some  time previously.  The complete and adequate opportunity for

          cross-examination  which  prevailed  at  the  first hearing,  the

          defense's subsequent  opportunity, once armed  with knowledge  of

          the witness's  birth name, to put his  credibility to the test at

          trial, and the utter  absence of State action limiting  the scope

          of the defense's cross-questioning,  combine to bring the earlier

          testimony  well within a  firmly rooted hearsay  exception.6  The
                              
          ____________________

               6We  note in  passing  that, even  apart  from whether  this
          evidence  fell  within a  firmly  rooted  hearsay exception,  the
          Confrontation  Clause would be satisfied so  long as the totality
          of  the   circumstances  evinced  the   requisite  guarantees  of
          trustworthiness.   See  Wright, 110  S. Ct.  at  3148 (describing
                             ___  ______

                                          12

Confrontation  Clause was  satisfied in  petitioner's case.   See
                                                                        ___

          generally Maryland
          _________ ________

v.  Craig, 110 S. Ct. 3157,  3163 (1990) (discussing the need for
              _____

          "rigorous testing [of a  witness] in the context of  an adversary

          proceeding"  in order  to satisfy  the  imperatives of  the Sixth

          Amendment). 

Affirmed.
          Affirmed.
          ________

____________________

          test; collecting cases).   Although we do not  decide the case on
          this  ground, we  remark  the obvious:    a strong  argument  for
          admissibility  can  be made  on  this  basis, particularly  since
          Martel/Ciccarelli appeared  at the probable cause hearing without
          the protection of  immunity and  spoke about  matters within  his
          personal  knowledge.    These  latter two  points  are  important
          considerations in  a trustworthiness  inquiry.  See  Zannino, 895
                                                          ___  _______
          F.2d at 7.

                                          13