
USCA1 Opinion

	




          October 22, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          No. 93-1037                                  THOMAS P. BOWLING,                                 Plaintiff-Appellant,                                          v.                             GEORGE A. VOSE, DIRECTOR OF                            THE DEPARTMENT OF CORRECTIONS,                            STATE OF RHODE ISLAND, ET AL.,                                Defendants-Appellees.                                 ____________________                                     ERRATA SHEET               The opinion of this  Court issued on September 10,  1993, is          amended as follows:               Add to the end of footnote 2 on page 2 of the opinion:                    It  is  apparently  the  state's   view  that                    Inspector  Byrne's  estimate  that  the  fire                    started thirty to  forty-five minutes  before                    discovery depended on the assumption that the                    fire did not  start until 11:46.   We see  no                    basis for this assumption and think  that, at                    the  very least, the  testimony is reasonably                    open to the interpretation that the fire  had                    been  started  thirty  to forty-five  minutes                    before it was actually discovered.               Add as  a footnote  on page 6  of the opinion  following the          first sentence on that page after the word "testimony":                    The trial judge and the Rhode Island  Supreme                    Court  conducted  the  required  weighing  of                    factors  elaborated  in Taylor  and concluded                                            ______                    that the exclusion of the  alibi evidence was                    an appropriate sanction.  As  the application                    of Taylor is a legal question, we review this                       ______                    ruling  de novo  and arrive  at the  opposite                    conclusion.               Add as a footnote at the end of the first  full paragraph on          page 7, after the word, "worst":                    The trial  court not only failed  to make any                    explicit finding of  willful misconduct,  see                                                              ___                    Bowling v.  Vose, No. 91-0472, slip  op. at 3                    _______     ____                    (D.R.I.   Nov.   13,   1992),  it   seemingly                    concluded   to   the   contrary.     In   its                    exclusionary ruling, the court stated that it                    was  "not persuaded  that [offering  an alibi                    witness]   was   the   defendant's   original                    intention . . . ."  Without such an intent to                    violate  the discovery  rules, the  fact that                    defense  counsel  later  felt that  an  alibi                    witness   should  be  called   would  not  be                    indicative of bad faith or misconduct.                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1037                                  THOMAS P. BOWLING,                                 Plaintiff-Appellant,                                          v.                             GEORGE A. VOSE, DIRECTOR OF                            THE DEPARTMENT OF CORRECTIONS,                            STATE OF RHODE ISLAND, ET AL.,                                Defendants-Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                                Boudin, Circuit Judge.                                        _____________                                _____________________               Paula Lynch Hardiman for appellant.               ____________________               Jane  M.  McSoley,  Assistant  Attorney  General,  Appellate               _________________          Division, with  whom Jeffrey  B. Pine,  Attorney General, was  on                               ________________          brief for appellee State of Rhode Island.                                 ____________________                                  September 10, 1993                                 ____________________                    TORRUELLA, Circuit Judge.  In   this   habeas    corpus                               _____________          action, appellant  was convicted  of first-degree arson  in Rhode          Island.  He claims that the trial judge excluded an alibi witness          in violation of his Sixth Amendment rights, and we agree.                    In the prosecution's request for  discovery information          prior to trial, the  prosecution specified that the suspect  fire          started between  11:00 p.m. and 12:00  a.m., on June  7, 1986, at          his  apartment building in Pawtucket, Rhode Island.  In complying          with  the  request  appellant  did not  aver  an  alibi  defense,          although Rhode Island  Rule of Criminal  Procedure 16 requires  a          defendant to provide such notice within 21 days of receipt of the          state's demand.1   Appellant claims  that he was  unaware of  any          alibi  for  that   evening  between  11:00  p.m.  to  12:00  a.m.          Appellant prepared his defense accordingly.                      At trial,  the state presented the  testimony of Donald          Byrne, a fire investigator.  On cross-examination, he stated that          the  fire actually started thirty to forty-five minutes before it          was  discovered.2    Appellant's  counsel  then calculated  that,                                        ____________________          1   The rule provides that  "upon demand by the  attorney for the          State and  delivery by him or  her to the defendant  of a written          statement describing with specificity the date  and time when and          the  place where the offense charged is alleged to have occurred,          the  defendant, within twenty-one (21) days after receipt of such          demand and  particulars, shall give written  notification whether          he or  she intends to rely in  any way on the  defense of alibi."          R.I. Sup. Ct. R. Crim. P. 16.            2    Inspector  Byrne believed  that  the  fire  was reported  at          11:46 p.m., and testified  as such.  However,  the Pawtucket Fire          Department  reported  that  it was  informed  about  the fire  at          11:34 p.m.    The  latter  report  would  seem  to  be  the  most          definitive   evidence  of  the  actual  starting  time.    It  is          apparently the state's view  that Inspector Byrne's estimate that                                         -2-          according to the  inspector, the fire  must have started  between          10:49 and 11:04 p.m.  This new time period obviously was somewhat          removed from the 11:00 p.m. to 12:00 a.m. period that counsel had          previously focused on in preparing the defense.                    The  revised  time  window  suggested  a  new  defense.          Counsel remembered an affidavit, supplied during discovery by the          state, from  appellant's common-law  wife, Doris Palmieri.3   Ms.          Palmieri stated that appellant  had picked her and her  sister up          at a club  in Providence sometime  after ten o'clock.   Because a          witness  placed  appellant at  the  building at  10:34  p.m., and          others  saw him there before  then, counsel inferred  that he did          not leave to pick up his wife until after approximately half past          ten.                    Counsel  then  tracked  down  Ms.   Palmieri's  sister,          Jenette Fagundes, and learned  that after picking up the  sisters          at  the  club,  appellant  drove  her home  before  returning  to          Pawtucket.   Counsel  determined that  appellant could  not leave          Pawtucket after 10:34 p.m., drive to the club in Providence, take          Ms. Fagundes to her  home in Providence, and return  to Pawtucket          in  time to  start the fire  by 11:04  p.m.   Appellant therefore          could not have burned down the building.                                          ____________________          the fire  started thirty  to forty-five minutes  before discovery          depended  on the  assumption that  the fire  did not  start until          11:46.  We se no basis for this assumption and think that, at the          very   least,   the  testimony   is   reasonably   open  to   the          interpretation that  the fire had  been started thirty  to forty-          five minutes before it was actually discovered.          3   Ms. Palmieri passed  away shortly after  the fire, of  causes          unrelated to the fire.                                           -3-                    After  the state  closed  its evidence,  and five  days          after the fire inspector  testified, counsel petitioned the court          to allow  Ms. Fagundes  to testify.   He stated  that he  did not          recognize the  relevance of  her story  until the fire  inspector          testified about when the  fire started.  Furthermore, he  did not          learn Ms.  Fagundes' name or  address until two days  later.  The          state responded that it would  not oppose the motion if  it could          introduce Ms. Palmieri's statement, which contained incriminating          facts, in full  as rebuttal.   In it, Ms. Palmieri  revealed that          upon arriving at the apartment building, appellant told her  that          she should sleep elsewhere.                    The  trial judge took a recess to ponder the matter and          ultimately decided to exclude Ms. Fagundes' testimony.  The judge          noted that appellant had the  Palmieri statement well before  the          trial,  and that  it sufficiently  raised the possibility  of the          alibi.   Because Rule 16 imposed an affirmative duty on appellant          to disclose reliance on an alibi, even if the name of the witness          was  unknown,    the  judge found  that  appellant  had  violated          discovery.   The judge excluded the alibi testimony as a sanction          under  Taylor  v.  Illinois, 484  U.S.  400  (1988).   The  judge                 ______      ________          determined that defendant "seized upon this tact having heard the          state's entire case and the state rested,"  and cited the need to          ensure the "orderly administration of justice."                      In  contrast  to the  proffered alibi,  the inculpatory          evidence  at  trial  was   substantial.    Two  eyewitnesses  saw          appellant  in the vicinity of the fire overcome by smoke; one saw                                         -4-          him running from the building.  Another eyewitness saw  appellant          throwing lighted paper into  a vent leading to the first floor of          the building.  Witnesses  testified that appellant threatened the          building's  owners  shortly before  the  fire.   Another  witness          apparently  testified that  appellant had  warned the  witness to          leave the building.  Swayed by this evidence, the jury rendered a          guilty verdict and appellant received a 25 year sentence.                    Appellant bases  his argument  on the  Sixth Amendment,          which states:   "In all criminal prosecutions,  the accused shall          enjoy the right  . . . to  have compulsory process  for obtaining          witnesses  in  his favor."   Of  course, the  "right to  compel a          witness'  presence in the courtroom" would  be meaningless "if it          did not embrace the right to have the witness' testimony heard by          the trier of fact."   Taylor, 484 U.S.  at 409.  Exercise of  the                                ______          right  thus assists  the adversary  process in  its truth-seeking          function by ensuring that the trial court hears the full array of          admissible  facts pertinent  to the  case.   The Court  in Taylor                                                                     ______          noted  that  "few rights  are more  fundamental  than that  of an          accused to present witnesses in his own defense."  Id. at 408.                                                             ___                    It  is  not an  absolute  right,  however.   Given  the          demands of the adversary system, the Court in Taylor found that a                                                        ______          trial court may  exclude a defense  witness without trampling  on          the Sixth Amendment.   The Court issued no  hard test; rather, it          listed  various considerations that a judge could use as a guide.          These  include the  "integrity  of the  adversary process,  which          depends both  on the  presentation of reliable  evidence and  the                                         -5-          rejection of unreliable  evidence, the interest  in the fair  and          efficient administration of justice,  and the potential prejudice          to  the truth-determining function of the trial process."  Id. at                                                                     ___          414-15.   If these concerns  outweigh the defendant's interest in          presenting witnesses,  the trial  court can properly  exclude the          testimony4.                    Courts thus have upheld the exclusion of a witness when          a party willfully violates the discovery rules to gain a tactical          advantage  in litigation.  In Taylor, for instance, it was "plain                                        ______          that  the case fit[] into  the category of  willful misconduct in          which the severest  sanction is appropriate."   Id. at 417.   The                                                          ___          proposed testimony appeared to be fabricated -- "witnesses [were]          being found  that really  weren't there."   Id.   In Michigan  v.                                                      ___      ________          Lucas,  111 S.  Ct. 1743,  1748 (1991),  the Court  explained its          _____          earlier holding:  "We  did not hold in Taylor  that preclusion is                                                 ______          permissible  every time a discovery rule is violated.  Rather, we          acknowledged that alternative  sanctions would  be 'adequate  and          appropriate in  most cases'" (quoting  Taylor, 484 U.S.  at 414).                                                 ______          The  Court  in Lucas  justified  the imposition  of  the severest                         _____          sanction of exclusion  in Taylor by noting  the willful character                                    ______          of the discovery violation.                    Indeed, most circuit court cases affirming exclusion in                                        ____________________          4   The trial judge and the  Rhode Island Supreme Court conducted          the  required  weighing  of  factors  elaborated  in  Taylor  and                                                                ______          concluded  that  the  exclusion  of  the alibi  evidence  was  an          appropriate  sanction.  As the  application of Taylor  is a legal                                                         ______          question,  we  review  this ruling  de  novo  and  arrive at  the          opposite conclusion.                                         -6-          response to  discovery violations  involve willful conduct.   See                                                                        ___          United States v.  Johnson, 970  F.2d 907, 911  (D.C. Cir.  1992);          _____________     _______          United  States v.  Mitan, 966  F.2d 1165,  1175 (7th  Cir. 1992);          ______________     _____          Horton v.  Zant, 941 F.2d  1449, 1467 (11th  Cir. 1991);   United          ______     ____                                            ______          States v. Peters, 937 F.2d 1422,  1426 (9th Cir. 1991); Eckert v.          ______    ______                                        ______          Tansy, 936 F.2d 444 (9th Cir. 1991); Escalera v. Coombe, 852 F.2d          _____                                ________    ______          45, 48 (2d  Cir. 1988); Chappee  v. Vose, 843  F.2d 25 (1st  Cir.                                  _______     ____          1988).  The  Ninth Circuit  has even interpreted  Taylor to  mean                                                            ______          that  exclusion  is  permissible  only  when  the  case  involves          misconduct.  Peters, 937 F.2d at 1426.                       ______                    In this case, there was  no such misconduct.  Appellant          did not, and could not, learn that the fire was set between 10:49          to 11:04  p.m., until  the fire  inspector was cross-examined  at          trial.   Appellant  proceeded on  the theory  that 11:00  p.m. to          12:00  a.m.  was  the relevant  time  period  simply  because the          government  suggested  that it  was  the  relevant time  period.5          While counsel could have learned about appellant's travels on the          night  in question with some ease from the Palmieri statement, we          view counsel's ultimate failure as negligence at worst6.                                        ____________________          5    The  reporter's notes  appended  to  Rule  16 recognize  the          significance  of the  state-provided  time of  offense.   "Unless          defendant  is given specific information about the time and place          of the offense, his ability to predict whether or through whom he          will raise  the defense of alibi  may be impaired."   Sup. Ct. R.          Crim. P. 16 reporter's notes to 1974 amendment.          6  The  trial court not only failed to  make any explicit finding          of willful misconduct, see Bowling v. Vose, No. 91-0472, slip op.                                 ___ _______    ____          at  3 (D.R.I.  Nov.  13, 1992),  it  seemingly concluded  to  the          contrary.  In its  exclusionary ruling, the court stated  that it          was "not  persuaded  that [offering  an  alibi witness]  was  the          defendant's original intention . . .  ."  Without such an  intent                                         -7-                    In  this  circumstance,  it is  obvious  that  concerns          related to the  integrity of  the trial process  do not weigh  in          favor  of exclusion.    Indeed, exclusion  of an  exculpatory and          potentially   reliable  alibi  would  distort  the  truth-seeking          function of trial.   The proposed testimony does not  threaten to          pollute  the trial  with unreliable  evidence; it  corroborates a          written statement that the prosecution itself was content to use.          The fact  that no willful misconduct  prevented timely disclosure          of the alibi also allays fears of fabrication and untruthfulness.                    The prosecution could  have received  a continuance  to          investigate the  alibi and  cross-examine Ms. Fagundes  about the          night  in question.  Furthermore, the  proposed testimony was not          particularly scientific or technical  in nature, which could have          imposed  a  hardship  on  the government  in  preparing  a cross-          examination on short notice.   Given the unintentional nature  of          the violation in this case, we see no threat to the trial process          as a whole.                    Undoubtedly the  interest  in the  fair  and  efficient          administration of justice  is burdened by  the introduction of  a          new defense theory after the  government has closed its evidence.          Alternative  remedies   exist,  however,  which   adequately  and          appropriately address fairness and efficiency.  Rhode Island Rule          16 does not limit trial judges to exclusion as the only  sanction          for a violation  of its  discovery rules.   It lists less  severe                                        ____________________          to violate  the discovery rules,  the fact  that defense  counsel          later  felt that an alibi  witness should be  called would not be          indicative of bad faith or misconduct.                                         -8-          remedies such  as requiring  the  offending party  to reveal  the          discovery  or inspection,  granting  a  continuance, or  entering          "such  other order as  it deems appropriate."   R.I.  Sup. Ct. R.          Crim. P. 16(i).                      Given the important nature of the proposed testimony to          the defendant,  and the nonwillful  character of the  offense, we          find  that   concerns  over  fairness  and   efficiency  are  not          sufficiently weighty  to justify the denial  of appellant's Sixth          Amendment  rights.    Indeed,  the  trial  court's  concern  over          fairness and efficiency seems  less credible when the prosecution          itself was willing to have the evidence admitted.  This is one of          those cases in  which a less severe sanction  than exclusion of a          witness was "adequate and appropriate."  Taylor, 484 U.S. at 414.                                                   ______                    Although  we have  found that  error  of constitutional          magnitude infected this case, our analysis is not over.  Before a          writ  of habeas  corpus  may issue,  that  error must  have  been          sufficiently prejudicial to defendant's rights  to warrant habeas          relief.  As the Supreme  Court has framed the inquiry,  the error          must have "had  substantial or injurious  effect or influence  in          determining  the jury's verdict."  Brecht v. Ahmanson, 113 S. Ct.                                             ______    ________          1710, 1714  (1993) (citing Kotteakos  v. United States,  328 U.S.                                     _________     _____________          750, 776 (1946)).   As this standard is "grounded in  the federal          harmless-error rule (28 U.S.C.    2111), federal courts may  turn          to an existing body of case law in applying it."  Id. at 1722.                                                            __                    On  the  record we  have before  us,  we cannot  make a          sufficiently  appropriate  determination  on  whether  the Taylor                                                                     ______                                         -9-          violation in this case  meets this standard.  The  district court          is  in a  better position  to evaluate  this issue  in  the first          instance, as  the inquiry entails  a determination  of the  exact          nature  and  force of  Ms.  Fagundes' proposed  testimony  and an          effort  to place her testimony within the context of the evidence          as  a whole.   In  short,  the weight  of her  testimony must  be          balanced against the weight  of the inculpatory evidence  in this          case, which is substantial.                    We therefore remand the case  to the district court for                                 ______          a  determination of this issue.   The district  court should hold          such hearings as necessary.                                         -10-
