
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).                                         -2-                                   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                                         -3-          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.             _________                                         -5-                                    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.                                         -7-                    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                                         -8-          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                                         -9-          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                                         -11-          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.                                            ______                                         -12-
