Gagne v. Booker

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0151a.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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LEWIS RODNEY GAGNE,
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Petitioner-Appellee,
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No. 07-1970
v.
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Respondent-Appellant. -
RAYMOND BOOKER, Warden,
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Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 04-60283—Marianne O. Battani, District Judge.
Argued: June 9, 2009
Decided and Filed: May 25, 2010
Before: BATCHELDER, Chief Judge; NORRIS and KETHLEDGE, Circuit Judges.

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COUNSEL
ARGUED: Janet A. Van Cleve, MICHIGAN ATTORNEY GENERAL’S OFFICE,
Lansing, Michigan, for Appellant. Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S
OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: William C. Campbell,
MICHIGAN ATTORNEY GENERAL’S OFFICE, Lansing, Michigan, for Appellant. Paul
L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, Michigan, for
Appellee. Benjamin C. Mizer, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Amici Curiae. Lewis Gagne, Detroit, Michigan, pro se.
NORRIS, J., delivered the opinion of the court, in which KETHLEDGE, J., joined,
with Judge KETHLEDGE (pp. 18-23), also delivering a separate concurring opinion.
BATCHELDER, C.J. (pp. 24-36), delivered a separate dissenting opinion.
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AMENDED OPINION
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ALAN E. NORRIS, Circuit Judge. Petitioner Lewis Gagne and his co-defendant,
Donald Swathwood, were each charged with three counts of criminal sexual misconduct for

1
No. 07-1970 Gagne v. Booker Page 2

forcibly and simultaneously engaging in sexual activities with Gagne’s ex-girlfriend, Pamela
Clark. All of the charges arose out of events occurring over the course of one night. The
key question at trial was one of consent. The jury convicted Gagne of two counts, and
Swathwood of three. Gagne filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254,
and the district court granted him relief on the basis that the state trial court’s decision to
exclude certain evidence had violated Gagne’s due process right to present a meaningful
defense. Respondent, Warden Raymond Booker, represented by the Michigan Attorney
General (“the State”), appealed. We now affirm.

I.

A.

Gagne and Swathwood were each charged with three counts of first-degree criminal
1
sexual conduct. Mich. Comp. Laws § 750.520b(1)(f). Gagne’s three charges included
two counts of forcible penis to mouth penetration and one count of forcible penis to
vagina penetration, charges for which consent is a full defense. See People v. Waltonen,
7238 N.W. 2d 881, 887 (Mich. Ct. App. 2006), appeal denied, 731 N.W. 2d 178 (Mich.
2007); see also People v. Hearn, 300 N.W.2d 396, 398 (Mich. Ct. App. 1980). A jury
convicted Gagne of forcible vaginal penetration and of one count of forcible oral
penetration.

The parties do not dispute the background facts that set the stage for what
occurred on the night of July 3, 2000. The complainant, Clark, and Gagne dated from
some time in January until early June of that year. Gagne moved in with Clark in late
January or early February, and the two lived together until their relationship ended.
Throughout this time, Clark worked, but Gagne did not, and Gagne would frequently use
her work phone and her personal ATM card, sometimes without her knowledge.

1
That statute provides as follows:
Sec. 520b. (1) A person is guilty of criminal sexual conduct in the first degree if he or
she engages in sexual penetration with another person and . . .
(f) The actor causes personal injury to the victim and force or coercion is used
to accomplish sexual penetration.
Mich. Comp. Laws § 750.520b(1)(f).
No. 07-1970 Gagne v. Booker Page 3

Also undisputed were the events that took place around midnight on July 3, 2000.
After spending most of that day doing yardwork, during which time she consumed most
of a pint of vodka, Clark retired to her house to watch television. Gagne arrived
uninvited at about 10:45 p.m. He informed Clark that he and his friend Swathwood,
whom Clark also knew, were going to move to California. Shortly thereafter
Swathwood and a third man, Michael Stout, arrived. The group began drinking beer and
possibly smoking marijuana. By Clark’s own estimate she consumed nine or ten beers
during this time.

This point in the story marks the beginning of the facts contested at trial. We
begin with the version urged by the prosecution, which was presented almost entirely
through Clark’s testimony. At some point after midnight, Clark and Gagne took a
shower together. Afterwards, Clark, who believed that Swathwood and Stout had left,
participated in oral sex with Gagne in the living room. Swathwood entered the room and
began engaging in intercourse with her while Gagne forcibly held her head down. A few
minutes later, Gagne released Clark and the two went into the bedroom where Clark told
Gagne she did not want to have sex with Swathwood. Clark then began performing oral
sex with Gagne. Swathwood again entered the room and began engaging in intercourse
with her. The men held Clark down, and each had intercourse and oral sex with her, at
various points slapping her buttocks and using sexual devices that Clark kept in her
room.

At approximately five a.m. the men tired of this activity and left the room. Clark
went into the bathroom, vomited, took a shower, and returned to bed where she slept
until approximately noon the next day. At that time she discovered her ATM card was
missing, and upon further investigation learned that at 5:28 that morning someone had
withdrawn $300 from her account, and had tried to withdraw more money twice in the
following fifteen minutes.

The defense’s version of events differed primarily on the issue of consent.
According to Gagne and Swathwood, the group purchased and smoked some crack
cocaine at around midnight. Clark then began talking with the men about engaging in
No. 07-1970 Gagne v. Booker Page 4

group sex, and in large part instigated the group sexual activity, first in the living room
and then later in the bedroom. Their description of the sexual activities differed only in
that Clark consented to them. They concede for instance, that they spanked Clark. At
about five a.m. Gagne and Clark agreed that Gagne should leave and purchase more
crack with money withdrawn using her ATM card. All three men left in Clark’s car.
Gagne dropped Stout off at home, withdrew $300 from an ATM using Clark’s card, and
then drove to a street corner and purchased crack. The defendants became nervous when
they saw police cars in the area, so instead of returning home, they drove to a cemetery
and smoked the crack. The defendants testified that they returned to Clark’s house later
that morning and Gagne returned her ATM card. Clark was angry and told Gagne to
leave, so he did.

Clark testified that, two days later, she told her adult son that she had been raped.
She also told the police, and saw several doctors. The doctors noted that she had some
bruising but no trauma to her wrists or shoulders, which are typically present after a
sexual assault. Nor did any of the doctors find any internal or external tears to Clark’s
vagina or rectum.

B.

As noted above, at the heart of Gagne’s petition for habeas corpus is the trial
judge’s exclusion of certain evidence from the trial. As required by the Michigan rape
shield law, Mich. Comp. Laws § 750.520j(1) & (2),2 Gagne filed a motion in limine
seeking to introduce evidence regarding several aspects of Clark’s prior sexual
experiences and tastes. The trial judge denied the motion in part, excluding evidence

2
The substantive portion of that law provides:
Sec. 520j (1) Evidence of specific instances of the victim's sexual conduct, opinion
evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual
conduct shall not be admitted under sections 520b to 520g unless and only to the extent
that the judge finds that the following proposed evidence is material to a fact at issue in
the case and that its inflammatory or prejudicial nature does not outweigh its probative
value:
(a) Evidence of the victim's past sexual conduct with the actor.
Mich. Comp. Laws § 750.520j (1) (a).
No. 07-1970 Gagne v. Booker Page 5

regarding two subjects that are relevant here: an incident of group sexual activity
involving Gagne, Clark, and a man named Ruben Bermudez; and Clark’s solicitation of
Gagne’s father to join her and Gagne in group sex. The court’s exclusion of this
evidence gives rise to this appeal.

The court also granted Gagne’s motion in part, and, because it is especially
relevant to our analysis, we recount in some detail the evidence the court decided to
admit regarding sexual activity that occurred one night involving Gagne, Swathwood,
Clark, and two other females they met at a bar called Tony’s Lounge (“the Tony’s
Lounge incident”). In the spring of 2000, Clark, Swathwood, and Gagne went to Tony’s
Lounge, where they drank for some time. At the bar Swathwood met two women. All
five of them departed together and went to a house belonging to one of the women.
There were people at the house when they arrived. Clark and Gagne began to engage
in some sort of “sexual behavior” in the living room while Swathwood had intercourse
nearby with the other two women. Clark testified that she did not “engage in sex of
whatever kind with Donny Swathwood” while they were in the living room. When
someone knocked at the door, Clark and Gagne relocated to the bedroom where they
began alternately having intercourse and arguing. Swathwood brought the other women
into the bedroom. Gagne and Clark’s argument escalated, and finally Clark left and
went home.

Clark was extremely intoxicated during these events; she testified that she drove
home that night but did not remember doing so. The next day, Gagne informed her that
there was more from the previous night that she did not remember, including that she
had engaged in oral sex with Swathwood. Clark testified that she had no memory of
this. Nonetheless, she believed Gagne and told others what had happened with
Swathwood, including Swathwood’s girlfriend at the time.

Finally, Clark testified that, at some later date, she and Gagne “were talking
about being with other men or being with other women” sexually, and discussed the
Tony’s Lounge incident:
No. 07-1970 Gagne v. Booker Page 6

And I told him that, you know, I honestly have not been with any other
man except what you told me about [Swathwood] and I don’t remember
that. And he said to me, I was just lying ’cause I wanted to go to bed
with the same – the girl that [Swathwood] was having sex with. And I
– and then he told me that he did have sex with her that night. And she
– the girl had told me something different.

For his part, Swathwood testified that Clark engaged in oral sex with him that night in
the presence of Gagne and the other two women. Swathwood answered “yes” when
asked, “Fair assessment to say this was kind of a group-sex, orgy-type situation?”

In her closing argument, the prosecutor repeatedly emphasized the unlikeliness
of the defendants’ version of the story, which, in her words, was “more consistent with
the pornographic movie than real life.” The defense responded by attacking Clark’s
credibility and arguing that she had consented by pointing to the Tony’s Lounge incident
as evidence of this theory. During rebuttal, the prosecution argued to the jury, that,
insofar as the Tony’s Lounge incident was concerned, “Even if you believe, contrary to
. . . what Ms. Clark told you, that she did engage in consen[s]ual sexual contact with Mr.
Swathwood, the nature of the contact and relations here were 190 degrees [sic] different.
That situation did not involve, ladies and gentlemen, two men.”

On direct appeal, Gagne raised a number of claims, only one of which is relevant
here: that the trial court violated his due process right to present a defense when it
excluded the evidence regarding the group sexual activity with Bermudez, and Clark’s
solicitation of Gagne’s father to participate in group sex with her and Gagne.

The state appellate court acknowledged that rape shield statutes can occasionally
abridge a defendant’s constitutional rights, but concluded that the evidence of the group
sexual activity with Bermudez and the invitation to Gagne’s father were irrelevant
because they involved third parties, not Swathwood. People v. Swathwood, Nos. 235540
and 235541, 2003 WL 1880143, at *1-2 (Mich. Ct. App. Apr. 15, 2003). Additionally,
the Bermudez incident was said to be even less relevant because it had occurred while
Clark and Gagne were dating; by July 3, the couple had been separated for three weeks.
Id. at *2. The court of appeals also determined that Gagne’s constitutional rights were
No. 07-1970 Gagne v. Booker Page 7

not violated because he was allowed to present evidence regarding the Tony’s Lounge
incident, which the court felt sufficiently demonstrated that Clark “was not averse to
group sexual activity.” Id. at *3.

The court of appeals affirmed Gagne and Swathwood’s convictions and
remanded for sentencing determinations that are irrelevant to this appeal. The state court
proceedings ended when the Michigan Supreme Court denied Gagne leave to appeal.3
People v. Gagne, 673 N.W.2d 755 (Mich. 2003) (unpublished table decision).

Gagne filed a pro se petition for a writ of habeas corpus, asserting four claims.
The district court granted relief on the due process claim arising from the trial court’s
exclusion of evidence. The court determined that relief was warranted because the
excluded evidence was highly relevant since it involved occurrences remarkable in their
similarity to the events on the night of July 3. This evidence was crucial to the defense
because this case was essentially a “credibility contest” between Clark on the one hand,
and Gagne and Swathwood on the other. The court granted Gagne a conditional writ of
habeas corpus, and the State timely appealed.

II.

We review a district court’s decision to grant habeas relief de novo. Hereford
v. Warren, 536 F.3d 523, 527 (6th Cir. 2008). Because Gagne filed his habeas petition
after the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, we review the last reasoned state
court decision on the issue to determine whether that decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or “was based on an unreasonable
determination of the facts.” 28 U.S.C. § 2254(d). A state court’s determination is
contrary to clearly established federal law if “the state court arrives at a conclusion

3
At this point Gagne and Swathwood’s legal proceedings parted ways. Swathwood missed the
deadline to apply for leave to appeal in the Michigan Supreme Court, so his application was denied. See
Swathwood v. Lafler, No. 04-CV-72251, 2009 WL 322041, at *3 (E.D. Mich. Feb, 10, 2009). He also
filed a habeas petition, but the court denied relief because his claims were procedurally defaulted due to
his missing the deadline in the Michigan Supreme Court. Id. at *8.
No. 07-1970 Gagne v. Booker Page 8

opposite to that reached by [the Supreme Court] on a question of law or if the state court
decides a case differently than [the Supreme Court] has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state-court
decision is an unreasonable application of clearly established federal law “if the state
court identifies the correct governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
at 413.

III.

The Supreme Court has repeatedly recognized that the right to present a complete
defense in a criminal proceeding is one of the foundational principles of our adversarial
truth-finding process: “Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the
Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful
opportunity to present a complete defense.’” Holmes v. South Carolina, 547 U.S. 319,
324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California
v. Trombetta, 467 U.S. 479, 485 (1984)) (internal quotation marks omitted). But a
“meaningful opportunity” is not “every opportunity,” and relevant evidence is frequently
excluded from trial. Trial judges must make “dozens, sometimes hundreds” of
evidentiary decisions throughout the course of a typical case, and rarely are these of
constitutional significance: “the Constitution leaves to the judges who must make these
decisions ‘wide latitude’ to exclude evidence that is ‘repetitive . . . , only marginally
relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.’”
Crane, 476 U.S. at 689-90 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986))
(alterations and omissions in original). But while the Constitution leaves much in the
hands of the trial judge, “an essential component of procedural fairness is an opportunity
to be heard.” Id. at 690.

The Supreme Court in Crane made clear that whether a defendant has a
constitutional right to present evidence turns on the extent to which that evidence is so
“highly relevant” that it becomes “indispensable” to the success of the defense. 476 U.S.
No. 07-1970 Gagne v. Booker Page 9

at 691. In that case, the trial court excluded evidence of the circumstances surrounding
the defendant’s confession, which the defense argued would have cast doubt on the
credibility of that confession. Id. at 684-86. The Supreme Court, in determining that
this exclusion violated the defendant’s right to present a meaningful defense, explained
that the “opportunity [to be heard] would be an empty one if the State were permitted to
exclude competent, reliable evidence bearing on the credibility of a confession when
such evidence is central to the defendant’s claim of innocence.” Id. at 690. The
evidence, which related to the physical circumstances of the confession, was so “highly
relevant to [the] reliability and credibility” of the confession, and the confession was so
integral to the defense, that the excluded evidence was “all but indispensable to any
chance of [that defense] succeeding.” Id. at 691.

In Crane, the Court’s inquiry did not end with consideration of the defendant’s
interests. Rather, the Court sought to balance those interests against the state’s interests
in the evidentiary exclusion at issue; simplifying the Court’s task was the fact that the
state did not attempt to come forward with a justification for the questioned exclusion.
Crane, 476 U.S. at 691.

Thus, Crane makes clear that a proper inquiry into the constitutionality of a
court’s decision to exclude evidence begins with considering the relevancy and
cumulative nature of the excluded evidence, and the extent to which it was “central” or
“indispensable” to the defense. Against this courts must balance the state’s interests in
enforcing the evidentiary rule on which the exclusion was based, in this case Michigan’s
rape shield statute.

When applying this delicate balance to the Michigan rape shield statute, we do
not write on a blank slate. The Supreme Court has already considered that statute and,
in doing so, reiterated these competing considerations. Michigan v. Lucas, 500 U.S. 145
(1991). In that case, the Court reviewed a holding of the Michigan Court of Appeals that
the rape shield statute’s “notice-and-hearing requirement is unconstitutional in all cases
where it is used to preclude evidence of past sexual conduct between a rape victim and
a criminal defendant.” Id. at 148. Among other provisions, the statute requires the
No. 07-1970 Gagne v. Booker Page 10

accused to file “a written motion and offer of proof” within ten days of his arraignment
if he plans to introduce evidence of the victim’s past sexual conduct. Mich. Comp. Laws
§ 750.20j(2). In Lucas, the defendant failed to file the motion in a timely manner and
the trial court excluded the evidence on that basis. The Supreme Court recognized that
“the [rape shield] statute unquestionably implicates the Sixth Amendment” but also
noted that placing limits on the ability to present a defense “does not necessarily render
the statute unconstitutional.” Lucas, 500 U.S. at 149. Quoting the same passage from
Van Arsdall, 475 U.S. at 679, that it relied upon in Crane, supra, the Court recognized
the wide latitude enjoyed by trial judges to limit the introduction of evidence. Id. In the
Court’s view, the Michigan rape shield law “represents a valid legislative determination
that rape victims deserve heightened protection against surprise, harassment, and
unnecessary invasions of privacy.” Id. at 150. Given these competing considerations,
the Court framed the question posed to it as follows: “[W]hether the legitimate interests
served by a notice requirement can ever justify precluding evidence of a prior sexual
relationship between a rape victim and a criminal defendant.” Id. at 151.

The Court answered in the affirmative and reversed the per se rule of the
Michigan Court of Appeals. Id. at 152-53. Significantly in our view, it did not hold that
preclusion of evidence for failure to comply with a notice provision is always
appropriate. As in all of its cases balancing evidentiary considerations with the right to
present a complete defense, the Court made clear that a case by case evaluation is
required. Accordingly, it remanded for the Michigan courts to perform such a balancing
and, in doing so, the Court “express[ed] no opinion as to whether or not preclusion was
justified in this case.” Id. at 153.

IV.

With these precepts in mind, we turn to the facts before us. The writ may issue
only when petitioner is “in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(c)(3). And, as we stressed earlier in this opinion,
our task is not to reach our own independent conclusion regarding the constitutional
validity of the evidentiary decision to exclude evidence; rather, we must determine if the
No. 07-1970 Gagne v. Booker Page 11

last reasoned state court opinion was either 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).4

The Michigan Court of Appeals affirmed the trial court’s judgment. It
acknowledged that evidentiary laws, including rape shield statutes, must give way when
constitutional rights of the accused, specifically the Sixth Amendment right to
confrontation, are implicated. People v. Swathwood, 2003 WL 1880143, at *1 (citing
People v. Hackett, 365 N.W.2d 120, 124 (Mich. 1984) (“in certain limited situations,
such evidence [of prior sexual conduct] may not only be relevant, but its admission may
be required to preserve a defendant’s constitutional right to confrontation”)). Balanced
against these constitutional considerations, the court of appeals observed that the
Michigan Supreme Court has instructed trial courts to be “mindful of the significant
legislative purposes underlying the rape-shield statute and should always favor exclusion
of evidence of a complainant’s sexual conduct where its exclusion would not
unconstitutionally abridge the defendant’s right to confrontation.” Id. (quoting People
v. Adair, 550 N.W.2d 505, 511 (Mich. 1996) (quoting Hackett, 365 N.W.2d at 125))
(quotation marks omitted). The balance struck by the court of appeals in this case is
entirely consistent with the approach taken by the United States Supreme Court in Lucas.
While the Michigan Court of Appeals did not cite federal constitutional law in its
decision, its rendition of the appropriate legal analysis was not “contrary to” the “clearly
established” federal law reflected in either Crane or Lucas.

That being the case, the writ may issue only if the court of appeals unreasonably
applied that law. 28 U.S.C. § 2254(d)(1). We conclude that it did. With respect to the
evidence regarding a “threesome” that included petitioner, Clark, and Bermudez, it
reasoned as follows:

[T]he complainant’s willing participation in a threesome with Gagne and
Bermudez is not probative of whether she consented to a threesome with

4
The parties do not argue that the Michigan courts violated AEDPA by basing their decision “on
an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(2).
No. 07-1970 Gagne v. Booker Page 12

Gagne and Swathwood on the night of the alleged offense. Notably, the
threesome involving Bermudez occurred while the complainant and
Gagne were still dating. The instant offense occurred after they had
ended their relationship, and it involved Swathwood, not Bermudez. In
light of the lack of similarity between the Bermudez threesome and the
instant offense, we conclude that the trial court did not abuse its
discretion in excluding the evidence.

Swathwood, at *2. The court of appeals also observed that the jury heard at length about
the group sexual activity that followed the visit to Tony’s Lounge, which included Clark
and multiple partners. Id. at *3. Thus, “defendants presented evidence that the
complainant was not averse to group sexual activity” and “the trial court did not abuse
its discretion in excluding the evidence.” Id. at *2-3. The court employed similar
reasoning before reaching the same conclusion with respect to the invitation to Gagne’s
father to join in group sex. Id. at *3.

In our view, the court of appeals underestimated the vital nature of the disputed
material, which we believe to be highly relevant, primarily as substantive evidence on
the issue of whether Clark consented to the sexual activity the night of July 3, 2000.5
The State argues otherwise in its brief to this court; inferring Clark’s consent from these
past incidents is

the very inference that rape-shield laws are meant to avoid; that
somehow consent to unrelated sexual activity is relevant to whether the
victim consented to the charged offense. Like evidence of a defendant’s
prior criminal acts, governed by MRE and FRE 404(b), propensity
evidence carries a significant danger of unfair inference and prejudice.

The State is correct that evidentiary rules generally disfavor showing a person’s
propensity for certain actions by introducing evidence of past similar acts, and it is
further correct that in rape cases evidence regarding “unrelated sexual activity” is
generally accepted as only minimally relevant to the question of consent. But rape
shield laws, including Michigan’s, almost universally except from this rule evidence
regarding prior sexual activity between the complainant and the defendant, precisely

5
It may also have impeachment purposes, but in our view, this purpose is less relevant than the
substantive role this evidence would play, so we focus our analysis on the latter.
No. 07-1970 Gagne v. Booker Page 13

because that evidence carries heightened relevancy due to its increased similarity to the
instance of the alleged rape. See Mich. Comp. Laws § 750.520j(1)(a); see also Fed. R.
Evid. 412(b)(1)(B). In this case, these prior incidents have significant relevance not only
because Gagne and Clark were involved in them, but also because they are both
remarkably similar to the events that occurred the night of July 3.

Nor do we agree with the State that the excluded evidence was cumulative to the
testimony already introduced regarding the Tony’s Lounge incident. There are, of
course, similarities between this evidence and the excluded evidence: if Swathwood’s
version of the Tony’s Lounge incident is believed, then it demonstrates that Clark had,
on at least one occasion, engaged in sexual activities of some variety with multiple
partners over the course of one night; it also shows that she did so with Gagne and
Swathwood. But we find the differences, which the prosecution took pains to highlight
in closing argument, to be more significant. First, the evidence that Clark engaged in
group sex during the Tony’s Lounge incident is at best equivocal because Clark testified
that she did not remember engaging in any sexual activities with Swathwood that night.
She further testified that Gagne later told her that he had made up that part of the story.
And although Swathwood testified that this had, in fact, occurred, it would have been
obvious to the jury that he had reason to lie about this incident in order to show that
Clark had engaged in these similar activities in the past. The prosecution realized that
the jury might not believe Swathwood and argued in closing that Clark had not engaged
in oral sex with Swathwood during the Tony’s Lounge incident.

Second, even if the jury did believe that Clark and Swathwood had engaged in
some sexual activity that night, there is no evidence at all that Clark engaged in that
activity with multiple partners at once. At most the evidence shows only that, at some
point during that night, she engaged in sexual intercourse with Gagne, and, at another
point during the night, she engaged in oral sex with Swathwood, and did so in the
presence of other people. This kind of activity differs substantially from the activity that
occurred the night of July 3, in which three people engaged in simultaneous group sex.
The prosecution, in discussing the Tony’s Lounge incident, pointed out this difference
No. 07-1970 Gagne v. Booker Page 14

to the jury in closing: “Even if you believe, contrary to . . . what Ms. Clark told you, that
she did engage in consen[s]ual sexual contact with Mr. Swathwood, the nature of the
contact and relations here were 190 degrees [sic] different. That situation did not
involve, ladies and gentlemen, two men.”

Finally, even if the excluded evidence merely points to the same predilections
shown by the Tony’s Lounge incident, the entire trial hinged upon consent, so the weight
of the evidence on this question is extremely important. This is evident from the closing
arguments, in which the prosecutor repeatedly stressed the unlikeliness of Gagne’s story,
and told the the jury that his story was “much more consistent with the pornographic
movie than real life.” The defense’s theory was that Clark consented to the activities of
July 3, but it had only the Tony’s Lounge incident as evidence that she may have done
so. In our view, the exclusion of the evidence of the group sexual activity with
Bermudez and the invitation to Gagne’s father were indispensable to the jury’s ability
to assess the likelihood of this theory.

We cannot accurately portray the extent of Gagne’s interest in presenting this
evidence without reference to the lack of other evidence in this case. Other than the two
defendants and the complainant, there were no eyewitnesses at all.6 Nor did the physical
evidence tend weigh in favor of one side or the other. In short, the excluded evidence
was not just relevant to this case, it was in all likelihood the most relevant evidence
regarding the sole contested issue at trial – an issue about which there was not much
evidence in the first place. We believe it was indispensable to the defense’s theory, a
conclusion amply demonstrated by the consistent focus during closing arguments on
what little evidence the court did admit regarding the likelihood (or unlikelihood) that
Clark would have consented to the activity the night of July 3, 2000.

With this in mind, we turn to the Michigan Supreme Court for an indication of
the State’s interests in enforcing the rape shield statute. As the court of appeals

6
Stout was present for at least some of the activity, but he testified that he was so intoxicated that
he remembers nothing, a claim that is in line with Gagne, Swathwood, and Clark’s accounts of Stout’s
general state of intoxication that night.
No. 07-1970 Gagne v. Booker Page 15

recognized, the Michigan Supreme Court has explained that those interests are two-fold:
to encourage victims to report criminal activity and testify at trial; and to further the
truth-finding process by preventing the admission of minimally relevant evidence that
creates a significant risk of prejudice or confusion. See Adair, 550 N.W.2d at 509. We
have acknowledged that there is always a real risk that allowing evidence concerning a
complainant’s sexual history will turn the case into a trial of the victim instead of the
defendant. Lewis v. Wilkinson, 307 F.3d 413, 422 (6th Cir. 2002).

Nonetheless, we do not believe that admitting the evidence at issue in this case
would overly frustrate the legitimate purposes of the rape shield statute. After all, the
statute itself contains exceptions that demonstrate that the interests it usually serves must
also accommodate the defendant’s interest in the admission of evidence that is highly
relevant, such as prior sexual conduct between the complainant and the defendant.
While we are not reviewing the manner in which the Michigan courts applied the rape
shield statute, which is a matter of state law, the fact that it contains this exception
illustrates that the Michigan legislature recognized that the defendant has a heightened
claim to the introduction of evidence of previous sexual contact with his accuser. This
is not a case involving sex a decade before the subject incident. And what made the
evidence even more central to petitioner’s defense was the extraordinary nature of the
events giving rise to the charge. The idea that someone could have consented to this sort
of thing seems incredible absent proof that the person had consented to it before.
Therein lies another similarity to Crane. In the underlying trial in Crane and in this
case, the evidence that was admitted gave rise to a “question every rational juror needs
answered[.]” 469 U.S. at 689. In Crane, that question was, “[i]f the defendant is
innocent, why did he previously admit his guilt?” Id. Here the question jurors would
need to have answered if Gagne was to be acquitted was, “how is it possible for anyone
to consent to three-way sex of the kind described here?” In each case the exclusion of
evidence “effectively disabled” the defendant from answering the question. Id.
Moreover, in this case, the excluded evidence would not have been unfairly prejudicial
given the sexually graphic testimony that had already been admitted as well as the
testimony involving the use of crack cocaine and other narcotics. And as we pointed out
No. 07-1970 Gagne v. Booker Page 16

in Lewis, “the court could minimize any danger of undue prejudice by admitting the
evidence with a cautionary instruction and strictly limiting the scope of cross-
examination.” Id.

Finally, we stress that our holding is fact-bound in the extreme: under the
circumstances present here, the exclusion of evidence of the complainant’s consensual
three-way sex with the defendant only a month before the subject incident, in a three-
way rape case in which extensive evidence of the victim’s sexual conduct had already
been admitted at trial, and where the question of guilt or innocence turned almost
entirely on the credibility of the victim’s testimony regarding consent, was an
unreasonable application of the principles set forth by the Supreme Court in Crane. That
case made clear that a defendant’s constitutional right to present a defense, arising from
the Due Process Clause of the Fourteenth Amendment, entails the right to put before the
jury evidence which is highly relevant, non-cumulative, and indispensable to the central
dispute in a criminal trial. This conclusion is also consistent with Lucas, a case in which
the Court recognized that the Michigan rape shield statute implicates the Sixth
Amendment rights of the accused and therefore its application must be carefully
balanced against the legitimate interests served by the statute on a case by case basis.
Lucas, 550 U.S. at 149. Reliance upon those legitimate interests in this case to exclude
the incidents at issue runs contrary to the statute’s exception that would allow a
defendant – in this case petitioner – to present evidence of the victim’s past sexual
conduct with the actor. Mich. Comp. Laws § 750.520j. While the trial judge may
exclude such evidence if its inflammatory or prejudicial nature outweighs its probative
value, that discretion cannot trump the constitutional right of the accused to present
evidence that is so “highly relevant” that its introduction, as in this case, is
“indispensable” to the defense. Crane, 476 U.S. at 691. For these reasons, we hold that
the Michigan Court of Appeals opinion constitutes an “unreasonable application of[]
clearly established Federal law,” 28 U.S.C. § 2254(d)(1), that deprived petitioner of his
constitutional right to “a meaningful opportunity to present a complete defense” as
articulated by the Supreme Court in Crane. The writ shall issue.
No. 07-1970 Gagne v. Booker Page 17

V.

The judgment of the district court is affirmed.
No. 07-1970 Gagne v. Booker Page 18

_____________________

CONCURRENCE
_____________________

KETHLEDGE, Circuit Judge, concurring. It is hard for a court to invalidate a
provision that does not even apply to the case at hand. It is harder still to invalidate a
whole gaggle of provisions that actually support the result reached in the case. Yet that,
according to the rhetoric in support of the State’s petition for rehearing, is the feat we
have managed here. I think the rhetoric is seriously overblown.

We are told, in support of rehearing, that our decision effectively invalidates
every rape-shield law in this circuit. That argument cannot be squared with the text of
those laws. The core of any rape-shield law is its proscription against evidence of past
sexual activity by the victim. But every one of those laws—or at least every one we are
said to have vaporized here—contains an exception for evidence of the victim’s prior
sexual activity with the defendant. And that is exactly the kind of evidence that we hold
should have been admitted in this case. Michigan’s statute excepts from its proscription
“[e]vidence of the victim’s past sexual conduct with the actor.” Mich. Comp. Laws
§ 750.520j(1)(a). Ohio’s statute does the same. See Ohio Rev. Code § 2907.02(D)
(excepting evidence of “the victim’s past sexual activity with the offender”). So does
the Tennessee rule. See Tenn. R. Evid. 412(c)(3) (allowing admission of evidence of
“sexual behavior . . . with the accused, on the issue of consent”). The federal rule
affirmatively provides that “evidence of specific instances of sexual behavior” between
the alleged victim and defendant “is admissible,” if offered to prove consent and
otherwise admissible under the rules. Fed. R. Evid. 412(b)(1)(B) (emphasis added).
Kentucky’s rule is identical to the federal one. See Ky. R. Evid. 412(b)(1)(B). I am of
course mindful that we apply only constitutional rules, not statutory ones, on habeas
review. But rhetorically speaking, our decision applies these laws, rather than abrogates
them.

Equally misdirected is the claim that we have trampled upon the policies that
animate these laws. As Judge Norris’s opinion carefully explains, we hold that, under
No. 07-1970 Gagne v. Booker Page 19

the rather extraordinary facts presented here, certain evidence of the complainant’s prior
consensual sex with the defendant was indispensable to his ability to present a complete
defense at trial. The argument now is that, in deeming that evidence indispensable, we
have indulged in outdated inferences whose eradication was a principal aim of these
laws. But the argument again is let down by the laws. Every one of these laws is
supported by significant state interests. (The extent to which those interests are
implicated in a particular case, as discussed below, is another matter.) And yet,
notwithstanding those important interests, every one of these laws contains an exception
for evidence of consensual sex with the defendant. These laws must infer something
very important about such evidence; and they do so especially in cases—like this
one—where consent itself is the issue. The inference is that, in some (and perhaps most)
cases, evidence of past consensual sex with the defendant is highly relevant to the issue
of consent in the incident giving rise to the charge. We merely conclude that this is such
a case.

Notable as well is that the caselaw in Michigan, and the terms of the federal and
Tennessee rules, expressly wave off the rape-shield proscription as to “evidence the
exclusion of which would violate the constitutional rights of the defendant.” Fed. R.
Evid. 412(b)(1)(C); see also People v. Hackett, 365 N.W.2d 120, 124 (Mich. 1984)
(recognizing that, in some situations, admission of evidence relating to the victim’s
sexual conduct “may be required to preserve a defendant’s constitutional right to
confrontation”); People v. Adair, 550 N.W.2d 505, 511 (Mich. 1996) (rejecting a
construction of Michigan’s rape-shield statute that would have “run[] the risk of
violating a defendant’s Sixth Amendment constitutional right to confrontation”); Tenn.
R. Evid. 412(c)(1). We do not, of course, look to these rules in determining whether
there was a violation of clearly established federal constitutional law. But these
provisions do show that the rules’ drafters knew very well that they were operating close
to the constitutional line. That the rules’ application might cross it, on occasion, should
surprise no one.
No. 07-1970 Gagne v. Booker Page 20

I also think the rehearing petition overstates the breadth of our holding in this
case. We do not hold that the Supreme Court’s decision in Crane v. Kentucky, 476 U.S.
683 (1986), clearly establishes a rape defendant’s constitutional right to admit evidence
of the victim’s prior consensual activity with the defendant (much less with persons
other than the defendant). What we do say, as a starting point for the analysis, is that
Crane clearly establishes that “the Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense.’” Id. at 690 (quoting California
v. Trombetta, 467 U.S. 479, 485 (1984)). The State of Ohio, as amicus, says this rule is
stated at too high a level of generality to support habeas relief here. That point is a
serious one; the more general a rule, the more difficult it is to say that the state court
unreasonably applied the rule to a particular set of facts. With generality often comes
discretion. But I think the facts of Crane and those of this case converge at a level closer
to the ground than the State realizes.

Crane requires consideration of two factors in determining whether the exclusion
of evidence denies the defendant a meaningful right to present a complete defense. The
first is the extent to which the evidence was “central to the defendant’s claim of
innocence.” Id. The second is the extent to which its exclusion was supported by a
“valid state justification[.]” Id. In Crane, the defendant was convicted of murder. He
was 16 years old at the time of the crime. There was “no physical evidence to link him”
to the murder. Id. at 691. The State’s evidence of guilt was primarily Crane’s own
confession. Crane sought to discredit the confession with testimony that “he had been
detained in a windowless room for a protracted period of time, that he had been
surrounded by as many as six police officers during the interrogation, that he had
repeatedly requested and been denied permission to telephone his mother, and that he
had been badgered into making a false confession.” Id. at 685. That evidence, the
Supreme Court said, was “highly relevant” to the reliability and credibility of the
confession, which again was the State’s primary evidence of guilt. Id. at 691. And the
Court saw no justification for excluding the evidence under the circumstances presented
there. The Court did not “pass on the strength or merits” of Crane’s defense. Id. But
No. 07-1970 Gagne v. Booker Page 21

it held, unanimously, that the exclusion of Crane’s testimony violated his right to present
a complete defense.

The analysis flows in the same channels here. First, the excluded evidence was
“central to the defendant’s claim of innocence.” Id. at 690. Gagne was convicted of
forcing Clark to engage in an outlandish sexual encounter with himself and another man.
The events making up that encounter were largely undisputed; what was disputed was
whether Clark consented. There was little if any physical evidence of non-consent. The
State’s primary evidence of guilt, rather, was Clark’s own testimony that she did not
consent. Gagne sought to discredit that testimony with evidence that—only one month
before the subject incident—Clark had voluntarily engaged in three-way sex with Gagne
and another man, and that she had suggested the same thing on another occasion. That
evidence would have included testimony not only from Gagne, but also from Ruben
Bermudez, the other participant in the three-way the month before, who according to
Gagne’s lawyer was prepared to testify at trial. See 1/2/01 Hearing Tr. 18-19. But the
trial court excluded all of that testimony. That exclusion was affirmed by the state court
of appeals, which held—remarkably—that the excluded testimony was not even relevant
to the case.

That the excluded evidence was highly relevant can be inferred, as discussed
above, from the rape-shield statutes themselves. Moreover, as Judge Norris explains,
in both this case and Crane the excluded evidence, if credited, answers a question that,
if left unanswered, leads directly to conviction. See Maj. Op. at 15-16.

The State says the trial court’s admission of evidence of another sexual
encounter—the so-called Tony’s Lounge incident, which involved five people—made
the three-way evidence only marginal, rather than central, to Gagne’s defense. But the
prosecution itself did a credible job of explaining, in closing argument, why the Tony’s
Lounge evidence did very little to answer the question described above. I think that
Judge Norris’s opinion convincingly finishes the job.

What is significant is the effect of the Tony’s Lounge evidence upon the State’s
interest in excluding the Gagne and Bermudez three-way testimony. This, in my view,
No. 07-1970 Gagne v. Booker Page 22

is where the bottom falls out of the State’s argument on appeal. As an initial matter, this
case only weakly implicates the interests protected by Michigan’s rape-shield statute,
since the statute’s terms did not even bar the excluded testimony, but instead left its
admission to the discretion of the Ingham County Circuit Judge. See Mich. Comp. Laws
§ 750.520j(1)(a). And it is hard to see what was left of those interests, such as they were
in this case, given the evidence that was admitted at trial. That evidence included that,
during the Tony’s Lounge incident, Clark had engaged in oral sex with Swathwood
shortly after intercourse with Gagne, and that she had engaged in consensual oral sex
with Gagne minutes before the very incident for which he was convicted (and moreover
that she had drunk a pint of vodka and nine or so beers and smoked crack in the hours
before the incident). I entirely agree that Michigan’s rape-shield law protects important
state interests in the vast majority of cases in which it is implicated. But I submit that,
under the circumstances of this trial, there was virtually nothing left of those interests
to protect.

So here, as in Crane, the prosecution’s case hinged on a single account of what
happened during the underlying incident. In each case, the nature of that account—a
confession there, and the outlandish conduct alleged to have been coerced here—tended
to make the account especially persuasive to a jury. In each case, the trial court excluded
highly relevant evidence that, if credited, could have undermined the account upon
which the State relied. And in each case the State’s interest in excluding that evidence
was negligible.

These parallels emerge, admittedly, only after close analysis. But I think they
are clear enough to render the state court’s decision unreasonable within the meaning of
the habeas statute. (It bears mention that two Justices of the Michigan Supreme Court
voted to reverse the decision summarily, and that Justice Markman voted to hear the
case. See 673 N.W.2d 755 (Mich. 2003) (unpublished table disposition).) The exclusion
of the three-way evidence clearly violated Gagne’s Sixth Amendment and procedural
due process rights. He should have been able to present that evidence to a jury before
ultimately being sentenced to a prison term of up to 45 years.
No. 07-1970 Gagne v. Booker Page 23

My purpose in reciting this evidence, however, is not to explain what Judge
Norris has already explained in his nuanced opinion. And I readily admit that reasonable
people, including the respected Chief Judge of our court, can disagree with my
conclusion in this case. Nor do I mean to “pass on the strength or merits” of Gagne’s
defense. Crane, 476 U.S. at 691. I think those merits should have been left to the jury;
and otherwise I do not hold a torch for anyone involved in the underlying events of this
case.

My purpose, instead, is to emphasize the limited nature of our holding in this
case. See also Maj. Op. at 16-17. With respect, I do not think that holding has nearly
the jurisprudential consequences that Michigan and the amici States seem to think it has.

For these reasons, I continue to concur fully in Judge Norris’s opinion.
No. 07-1970 Gagne v. Booker Page 24

________________

DISSENT
________________

ALICE M. BATCHELDER, Chief Judge, dissenting. Some 35 years ago, the
Michigan state legislature determined that a criminal defendant accused of rape may not
introduce evidence about the victim’s past sexual behavior, because the victim’s past
willingness is not relevant to the question of present consent. The majority here
disagrees with that legislative determination and concludes that evidence of the victim’s
promiscuity or previous willingness to engage in somewhat similar sex acts was not only
relevant but was “indispensable” and “the most relevant evidence.” Moreover, because
this appeal arises in the context of a habeas proceeding, the majority ultimately holds
that the rape defendant has a “constitutionally protected” and “clearly established” right
to introduce this evidence. In so holding, the majority effectively abrogates every rape-
shield statute in this circuit.1 I do not believe that there is any such constitutional right
to present evidence of a rape victim’s promiscuity or past willingness to engage in sex
acts, nor do I believe that the majority is justified in its condemnation of the rape-shield
concept. I dissent.

A.

In concluding its analysis, and justifying its grant of habeas relief, the majority
cites Crane v. Kentucky, 476 U.S. 683 (1986), as the “clearly established law” that the
Michigan Court of Appeals “unreasonably applied.” See Maj. Op. at 17 (“We therefore
conclude that the state appellate court’s determination on this issue was an unreasonable
application of the principles set forth by the Supreme Court in Crane.”). The majority
offers the following exposition of those “principles”:

Crane makes clear that a proper inquiry into the constitutionality of a
court’s decision to exclude evidence begins with considering the

1
See Fed. R. Evid. 412 (108 Stat. 1919, eff. Sept. 13, 1994); Tenn. R. Evid. 412 (adopted July
1, 1991, to replace T.C.A. § 40-17-119); Ky. R. Evid. (1990 c 88 § 22, eff. Mar. 16, 1990); Ohio Rev.
Code § 2907.02(D) (1975 S 144, eff. Aug. 27, 1975); Mich. Comp. L. § 750.520j (P.A. 1974, No. 266 § 1,
eff. Apr. 1, 1975).
No. 07-1970 Gagne v. Booker Page 25

relevancy and cumulative nature of the excluded evidence, and the extent
to which it was ‘central’ or ‘indispensable’ to the defense. Against this
courts must balance the state’s interests in enforcing the evidentiary rule
on which the exclusion was based, in this case Michigan’s rape shield
statute.

Maj. Op. at 9 (underlining added) (citing Crane, 476 U.S. at 691). So, according to the
majority, Crane stands for the clear proposition that if a defendant accused of rape can
show that evidence of the rape victim’s promiscuity or prior willingness to perform sex
acts is “highly relevant, non-cumulative, and indispensable to the central dispute in a
criminal trial,” then that defendant has a constitutional right to “put [that evidence]
before the jury.” Maj. Op. at 16.

I cannot accept this proposition. Foremost, I do not agree with its constitutional
premise. That is, in light of Michigan v. Lucas, 500 U.S. 145 (1991), I do not believe
that there is any such constitutional right. But, even if I am mistaken in my reading of
Lucas, I cannot agree that this proposition was — or, indeed, is now — “clearly
established” as Supreme Court precedent, and I do not agree that such a liberal extension
of Crane is justified (or justifiable). Moreover, I cannot agree that the Michigan Court
of Appeals’s application of these governing principles (such as they are) was
“objectively unreasonable.” Finally, I am simply unwilling to sanction the inevitable,
albeit unacknowledged, consequence of this decision — that rape-shield statutes are ipso
facto unconstitutional, inasmuch as their very purpose is to exclude, on policy grounds,
evidence that is almost always “highly relevant, non-cumulative, and indispensable to
the central dispute in a criminal trial.”

1.

In Lucas, 500 U.S. at 147, the Michigan prosecutor charged Nolan Lucas with
criminal sexual conduct based on his ex-girlfriend’s accusation that he forced her to his
apartment at knife point and forced her to perform various sex acts against her will. Id.
at 147. Lucas and the ex-girlfriend had ended a six-to-seven month relationship just two
weeks earlier and Lucas insisted that the entire episode was consensual, that he had not
used a knife or any other force. See Michigan v. Lucas, 408 N.W.2d 431, 431-32 (Mich.
No. 07-1970 Gagne v. Booker Page 26

App. 1987). At trial, the ex-girlfriend claimed rape and Lucas claimed consent. See
Michigan v. Lucas, 469 N.W.2d 435, 436 (Mich. App. 1991) (“Virtually all of the
evidence in this case consisted of complainant’s word against the word of defendant.”).

At trial, Lucas’s counsel sought to introduce testimony regarding the couple’s
relationship — specifically, their sexual history — as evidence of consent, but the state
objected on the basis that defense counsel had not given prior notice of its intent to use
that evidence, as was required by the Michigan rape-shield statute, M.C.L. §750.520j.
See Lucas, 500 U.S. at 147. The trial court agreed that Lucas’s counsel had failed to
comply with the notice provision of the rape-shield statute and refused to admit the
evidence. Id. at 148.

After being convicted and sentenced, Lucas appealed. Id. The Michigan Court
of Appeals vacated the conviction, holding “that the [Michigan rape-shield statute]’s
notice-and-hearing requirement is unconstitutional in all cases where it is used to
preclude evidence of past sexual conduct between a rape victim and a criminal
defendant.” Id. The United State Supreme Court granted certiorari to decide this
constitutional question and ultimately concluded:

[T]he Michigan Court of Appeals erred in adopting a per se rule that
Michigan’s notice-and-hearing requirement violates the Sixth
Amendment in all cases where it is used to preclude evidence of past
sexual conduct between a rape victim and a defendant. The Sixth
Amendment is not so rigid. The notice-and-hearing requirement serves
legitimate state interests in protecting against surprise, harassment, and
undue delay. Failure to comply with this requirement may in some cases
justify even the severe sanction of preclusion.

Id. at 152-53. The Supreme Court vacated the judgment and remanded the case, stating:

We leave it to the Michigan courts to address in the first instance whether
Michigan’s rape-shield statute authorizes preclusion and whether, on the
facts of this case, preclusion violated Lucas’ rights under the Sixth
Amendment.
Id. at 153. So, the Supreme Court expressly did not decide the preclusion question,
which is the question before us here. And, the inescapable consequence of this non-
No. 07-1970 Gagne v. Booker Page 27

decision — the avoidance of this particular question — is that the Court has not
articulated any “clearly established” law on this issue.

In the present case, however, the Michigan courts did consider whether
Michigan’s rape-shield statute authorizes preclusion and determined, on the facts of this
case, that preclusion of certain testimony concerning Ms. Clark’s alleged prior sexual
activities did not violate defendant Gagne’s rights under the Sixth Amendment. Because
the Lucas Court had left this issue unresolved, Lucas offers little direct guidance on this
issue (i.e., Lucas did not “clearly establish” any law on this particular issue), but it
certainly offers some guidance, the most telling of which comes from what it did not
hold.

The Lucas Court did not hold what the majority holds today — that a defendant
has a constitutional right to put evidence before the jury because the evidence was highly
relevant, non-cumulative, and indispensable to the central dispute. If the evidence at
issue in the present case was highly relevant, non-cumulative, and indispensable to the
central dispute, then the evidence in Lucas was equally or more so. In the present case,
the evidence concerned the victim’s alleged willingness to participate in a particular
sexual practice on at least two prior occasions; in Lucas, the evidence concerned the
victim’s six-to-seven month relationship with the defendant, the emotional, physical, and
sexual nature of their relationship, and the patterns and practices incident thereto. If the
former is “highly relevant,” then so must be the latter. In the present case, the court
excluded two incidents of prior sexual activities, but admitted testimony about three
others; in Lucas, the court excluded any reference whatsoever to the prior sexual
relationship. If the former is “non-cumulative,” so must be the latter. And, finally, the
central issue in the present case was the defendant’s asserted defense of consent, which
was also the central issue in Lucas. If evidence concerning consent in the former is
“indispensable to the central dispute,” so it must be in the latter.

So, it bears emphasizing that even though the evidence in Lucas was clearly
“highly relevant, non-cumulative, and indispensable to the central dispute in a criminal
trial,” see Maj. Op. at 16, the Lucas Court did not hold — and did not even suggest —
No. 07-1970 Gagne v. Booker Page 28

that the defendant therefore had some over-arching constitutional right to “put [that
evidence] before the jury,” see Maj. Op. at 16. In fact, the Lucas Court implicitly
rejected any such right, holding instead that the defendant’s “[f]ailure to comply with
[the notice] requirement may in some cases justify even the severe sanction of
preclu[ding]” such highly relevant, non-cumulative, and indispensable evidence. See
Lucas, 500 U.S. at 153. It is perhaps just as important that the Lucas Court expressly left
it to the Michigan courts to decide “whether, on the facts of this case, preclusion [of the
propensity evidence] violated Lucas’ rights under the Sixth Amendment.” See id. The
majority notes that “rape shield laws, including Michigan’s, almost universally except
from this rule evidence regarding prior sexual activity between the complainant and the
defendant, precisely because that evidence carries heightened relevancy due to its
increased similarity to the instance of the alleged rape.” Maj. Op. at 13 (emphasis in
original). But in Lucas, it was exactly that type of sexual-history evidence that had been
precluded.

So, the clear implication of Lucas is that the trial court can, without running afoul
of the Constitution, exclude highly relevant, non-cumulative, and indispensable evidence
from a criminal defendant’s trial. That is, Lucas clearly demonstrates that a court can
constitutionally exclude such evidence on the basis that the defendant’s attorney failed
to comply with the statute’s notice requirement. Therefore, the right (such as it is) to put
that evidence before the jury is not grounded in the Constitution, but is instead grounded
in state law or the state’s proper application of that law. Cf. Dist. Atty.’s Office for the
Third Judicial Dist. v. Osborne, 557 U.S. --, 129 S. Ct. 2308, 2320 (2009) (holding that
there is no stand-alone constitutional right to access evidence for purposes of DNA
testing, there is at most a constitutional right to the proper application of a state-created
right).

The majority’s proposition cannot survive Lucas. While the Supreme Court has
left its Sixth Amendment analysis unarticulated post-Lucas, it is evident from the
foregoing that whatever the proper analysis may be, the majority’s (unprecedented)
proposition does not conform to it.
No. 07-1970 Gagne v. Booker Page 29

2.

The majority’s holding is premised on Crane v. Kentucky, 476 U.S. 683, 684
(1986), a case in which a 16-year-old defendant was implicated in the murder of a liquor
store clerk and signed a confession at the police station. At the boy’s trial, the court
refused to admit evidence about the circumstances surrounding his confession — “that
he had been detained in a windowless room for a protracted period of time . . .
surrounded by as many as six police officers. . . , that he had repeatedly requested and
been denied permission to telephone his mother, and that he had been badgered into
making a false confession.” Id. at 685. The jury convicted him of the murder and the
court sentenced him to 40 years in prison. Id. On appeal to the Supreme Court, the
Court reversed the conviction on constitutional grounds. Id. at 687.

The Court explained that, while a pre-trial confession is “not conclusive of guilt,”
it certainly changes the complexion of the defense and invariably raises “the one
question every rational juror needs answered: If the defendant is innocent, why did he
previously admit his guilt?” Id. at 689. Thus, the Court explained, such “a defendant’s
case may stand or fall on his ability to convince the jury that the manner in which the
confession was obtained casts doubt on its credibility.” Id.

This simple insight is reflected in a federal statute, 18 U.S.C.
§ 3501(a), the Federal Rules of Evidence, Fed. Rule Evid. 104(e), and the
statutory and decisional law of virtually every State in the Nation
[citations omitted]. We recognize, of course, that under our federal
system even a consensus as broad as this one is not inevitably congruent
with the dictates of the Constitution. We acknowledge also our
traditional reluctance to impose constitutional constraints on ordinary
evidentiary rulings by state trial courts. In any given criminal case the
trial judge is called upon to make dozens, sometimes hundreds, of
decisions concerning the admissibility of evidence. As we reaffirmed
earlier this Term, the Constitution leaves to the judges who must make
these decisions wide latitude to exclude evidence that is repetitive, only
marginally relevant[,] or poses an undue risk of harassment, prejudice,
or confusion of the issues. Moreover, we have never questioned the
power of States to exclude evidence through the application of
evidentiary rules that themselves serve the interests of fairness and
reliability — even if the defendant would prefer to see that evidence
admitted. Nonetheless, without signaling any diminution in the respect
No. 07-1970 Gagne v. Booker Page 30

traditionally accorded to the States in the establishment and
implementation of their own criminal trial rules and procedures, we have
little trouble concluding on the facts of this case that the blanket
exclusion of the proffered testimony about the circumstances of
petitioner’s confession deprived him of a fair trial.

Id. at 689-90 (citations, quotation and editorial marks omitted; emphasis added).

Thus, the clear proposition for which Crane stands is that when a criminal
defendant, having signed a confession, nonetheless proceeds to trial, the Constitution
guarantees that defendant the right to present evidence (i.e., the right to be heard) about
the circumstances surrounding the confession, so that he may present a complete defense
by challenging the credibility of that pre-trial confession. A broader application is not
evident (or inevitable) from the text of the Crane opinion.

In Holmes v. South Carolina, 547 U.S. 319 (2006) — a case the majority cites
in support of Crane — the Supreme Court characterized Crane as a case about an
“arbitrary” rule:

Another arbitrary rule was held unconstitutional in Crane v. Kentucky,
[476 U.S. 683 (1986)]. There, the defendant was prevented from
attempting to show at trial that his confession was unreliable because of
the circumstances under which it was obtained, and neither the
[Kentucky] State Supreme Court nor the prosecution ‘advanced any
rational justification for the wholesale exclusion of this body of
potentially exculpatory evidence.’ Id. at 691.

Holmes, 547 U.S. at 326. It is noteworthy that, although it cited Holmes, the majority
here did not hold that the Michigan rape-shield statute is “arbitrary” or that the Michigan
Court of Appeals failed to “advance[] any rational justification” for its exclusion of the
sexual propensity evidence.

The majority cites Crane as the “clearly established law” that the Michigan Court
of Appeals “unreasonably applied” in this case. See Maj. Op. at 17 (“We therefore
conclude that the state appellate court’s determination on this issue was an unreasonable
application of the principles set forth by the Supreme Court in Crane.”). That is, the
majority views Crane — a decision that upheld a criminal defendant’s constitutional
No. 07-1970 Gagne v. Booker Page 31

right to introduce evidence about the circumstances surrounding his own (allegedly
coerced) pre-trial confession — as the “clearly established” or governing law on the
constitutionality of a criminal defendant’s right to introduce evidence about the victim’s
prior willingness to participate in certain private, potentially humiliating, sex acts, based
on the defendant’s theory that her previous willingness would be indicative of her
current willingness.

I do not agree that the majority’s rendition of Crane is or was “clearly
established.” In my view, the majority has extended Crane well beyond any reading or
application justified by the language of the opinion or any subsequent case. It is unfair
to fault the Michigan Court of Appeals, as the majority does, for failing to anticipate this
novel extension of Crane.

3.

The majority’s approach does not comply with the limitations of AEDPA. Under
AEDPA, the phrase “unreasonable application of” Supreme Court precedent means that
the state court “identifie[d] the correct governing legal principle from [Supreme Court]
decisions but unreasonably applie[d] that principle to the facts” of the case. Williams
v. Taylor, 529 U.S. 362, 413 (2000). But, “a federal habeas court may not issue the writ
simply because [it] concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.” Lockyer v.
Andrade, 538 U.S. 63, 75-76 (2003) (quoting Williams, 529 U.S. at 411). Even “a firm
conviction that the state court was erroneous” is not enough. Id. at 75 (quotation marks
omitted; emphasis added). Rather, “[t]he state court’s application of clearly established
law must be objectively unreasonable.” Id. at 76 (emphasis added); see also Wright v.
Van Patten, 552 U.S. 120, 128 S. Ct. 743, 747 (2008) (“Because our cases give no clear
answer to the question presented, let alone one in [petitioner]’s favor, it cannot be said
that the state court unreasonably applied clearly established Federal law.” (quotation
marks and citations omitted)).
No. 07-1970 Gagne v. Booker Page 32

A review of the Michigan Court of Appeals’ decision reveals that its application,
far from being “objectively unreasonable,” was eminently reasonable. The court
explained its approach:

Evidence of specific instances of a victim’s past sexual conduct
with others is generally legally irrelevant and inadmissible under the
rape-shield statute, M.C.L. § 750.520j. In certain limited situations,
evidence that does not come within the specific exceptions of the statute
may be relevant and its admission required to preserve a criminal
defendant’s Sixth Amendment right of confrontation. . . .
Inquiries into sex histories, even when minimally relevant, carry
a danger of unfairly prejudicing and misleading the jury. Application of
the rape-shield statute must be done on a case-by-case basis, and the
balance between the rights of the victim and the defendant must be
weighed anew in each case. In exercising its discretion, the trial court
should be mindful of the significant legislative purposes underlying the
rape-shield statute and should always favor exclusion of evidence of a
complainant’s sexual conduct where its exclusion would not
unconstitutionally abridge the defendant’s right to confrontation.

Michigan v. Swathwood, No. 235540 & 235541, 2003 WL 1880143, *1 (Mich. App.
Apr. 15, 2003) (citations and quotations marks omitted). The court considered the
evidence and, concluding that evidence of Ms. Clark’s propensity to participate in
certain sex acts was not probative of whether she consented to the acts complained of
in the present case, affirmed the trial court. Id. at *2-4.

I cannot agree that the Michigan Court of Appeals’s application of the governing
principles was “objectively unreasonable.” It appears to me that the majority does not
dispute the state court’s application of the law so much as it simply disagrees with either
the Michigan legislature’s policy determination about the relevance of this propensity
evidence or with the state court’s measure of the probity or relevance of this evidence.
Neither is a proper basis for habeas relief.
No. 07-1970 Gagne v. Booker Page 33

4.

It is commonly understood that the uncorroborated testimony of a rape victim is
sufficient to support a conviction. See Tibbs v. Florida, 457 U.S. 31, 45 n.21 (1982);
Brown v. Davis, 752 F.2d 1142, 1144 (6th Cir. 1985) (holding that the testimony of a
single, uncorroborated rape victim is sufficient to support conviction); Michigan v.
Whittaker, 2007 WL 914342, *5 (Mich. App. Mar. 27, 2007) (“Indeed, in cases of sexual
assault, a conviction may ‘be based upon the uncorroborated testimony of the woman
assaulted.’”) (quoting Michigan v. Miller, 55 NW 675, 676 (Mich. 1893)); M.C.L.
§750.520h (“The testimony of a victim need not be corroborated in [rape and sexual
assault] prosecutions under sections 520b to 520g.”). But, the majority is not so easily
persuaded.

The defense’s theory was that Clark consented to the activities of July 3,
but it had only the Tony’s Lounge incident as evidence that she may have
done so. In our view, the exclusion of the evidence of the group sexual
activity with Bermudez and the invitation to Gagne’s father were
indispensable to the jury’s ability to assess the likelihood of this theory.
We cannot accurately portray the extent of Gagne’s interest in presenting
this evidence without reference to the lack of other evidence in this case.
Other than the two defendants and the complainant, there were no
eyewitnesses at all. Nor did the physical evidence tend weigh in favor
of one side or the other. In short, the excluded evidence was not just
relevant to this case, it was in all likelihood the most relevant evidence
regarding the sole contested issue at trial — an issue about which there
was not much evidence in the first place. We believe it was
indispensable to the defense’s theory . . . .

Maj. Op. at 14-15 (paragraph break and footnote omitted).

First, let’s be very clear about what the majority means when it says “evidence
of the group sexual activity with Bermudez and the invitation to Gagne’s father.” This
“evidence” is simply Gagne’s uncorroborated testimony about these alleged incidents.
No one contends that either Bermudez or Gagne’s father was prepared to testify about
these incidents, or that there was any other “proof.” And Clark was prepared to refute
these accusations, had Gagne been allowed to raise them.
No. 07-1970 Gagne v. Booker Page 34

And, it bears emphasizing that the defense did not have “only the Tony’s Lounge
incident as evidence” that “Clark consented to the activities of July 3”; the defense had
testimony by both Gagne and Swathwood — which is twice as much testimony as a rape
defendant would typically have — and an opportunity to cross-examine the sole
complainant, Pamela Clark. Moreover, the “lack of other evidence” did not hinder
Gagne’s defense; if anything it hindered the prosecution, whose burden it was to prove
the offense beyond a reasonable doubt.

So, the majority is really saying that despite the absence of physical evidence,
and despite Gagne’s and Swathwood’s consistent testimony that Clark consented, and
despite their consistent testimony about the Tony’s Lounge incident, and despite defense
counsel’s opportunity to cross-examine Clark at length — Gagne’s self-serving and
unverifiable testimony about those two other past, unrelated incidents of sexual
debauchery on the part of his accuser, Pamela Clark, was “indispensable to the jury’s
ability to assess the likelihood” that she had consented to the far more violent and
humiliating form of sexual debauchery with Gagne and Swathwood on the night in
question. The majority contends: “the excluded evidence was not just relevant to this
case, it was in all likelihood the most relevant evidence regarding the sole contested
issue at trial,” consent.

So, the majority’s position is that “the most relevant evidence” in a rape trial, the
“indispensable” evidence, is the perpetrator’s testimony about the victim’s promiscuity
or prior sex acts. And this, according to the majority, is because a rape defendant has
a constitutional right to prove present consent by producing evidence of past willingness,
at least insofar as the defendant can characterize that evidence as highly relevant, non-
cumulative, and central to the dispute.

I disagree and find that I am not alone. In Sandoval v. Acevedo, 996 F.2d 145,
147-48 (7th Cir. 1993), the Seventh Circuit decided a case in which the defendant —
accused of forcibly sodomizing his ex-girlfriend — sought to introduce testimony by
other men that she had enjoyed anal intercourse with them in the past, thus
demonstrating her propensity for it. The court explained:
No. 07-1970 Gagne v. Booker Page 35

The essential insight behind the rape shield statute is that in an age of
post-Victorian sexual practice, in which most unmarried young women
are sexually active, the fact that a woman has voluntarily engaged in a
particular sexual activity on previous occasions does not provide
appreciable support for an inference that she consented to engage in this
activity with the defendant on the occasion on which she claims that she
was raped. And allowing defense counsel to spread the details of a
woman’s sex life on the public record not only causes embarrassment to
the woman but by doing so makes it less likely that victims of rape will
press charges.

Id. at 149. The Seventh Circuit continued:

The fact that [she] had had pleasurable anal intercourse with another man
on another occasion would not show that she would have enjoyed having
it with Sandoval on an occasion when he was enraged and wanted by
penetrating her anally to humiliate and, quite possibly, physically hurt
her. Indeed, by that logic rape shield laws would be unconstitutional to
the core because their central aim is to prevent the drawing of an
inference of consent from previous consensual intercourse with other
men.

Id. at 151.

[E]ven without a rape shield law it is doubtful that testimony that she had
enjoyed it with another man would be admissible, for it doesn’t, or at
least shouldn’t, require a rape shield law to show that consent to sex with
X on one occasion is not good evidence of consent to sex with Y on
another.

Id. To extend this basic reasoning to the present case: it shouldn’t require a rape shield
law to show that consent to sex with X and Y on one occasion is not good evidence of
consent to sex with X and Z on another. But, as so many states have discovered, it does
require a rape-shield law, because too many people — like the majority here — succumb
to the “propensity evidence” problem.

There is, to be sure, a commonplace assumption behind propensity evidence: If
she did it before, she’s more likely to have done it again. Cf., e.g., Old Chief v. United
States, 519 U.S. 172, 181 (1997); Fed. R. Evid. 404(b). And there is a peculiar aspect
to propensity evidence in rape cases, in which evidence of the victim’s sexual
No. 07-1970 Gagne v. Booker Page 36

predilections — e.g., a propensity for sexual willingness — has historically been
considered indicative of whether the victim consented to the incident in question. See
Fed. R. Evid. 412. And this is an assumption that the Michigan legislature (like many
others across the country) was attempting to overcome by enacting its rape shield statute.

The Michigan legislature has declared such evidence generally inadmissible as
a matter of public policy: that rape victims should be encouraged to report and prosecute
rapes without fear that private, potentially embarrassing, incidents from their past will
become the centerpiece of the ensuing trial. The majority disagrees and holds that the
rape-shield statute is no bar to evidence of a rape victim’s promiscuity or prior
willingness to engage in sexual debauchery, if that evidence is “highly relevant, non-
cumulative, and indispensable to the central dispute in a criminal trial.”

But, as the Seventh Circuit stated so cogently, “by that logic rape shield laws
would be unconstitutional to the core,” see Sandoval, 996 F.2d at 151, inasmuch as the
very purpose of a rape-shield statute is to exclude, on policy grounds, evidence that is
almost always highly relevant, non-cumulative, and indispensable to the central dispute
in a criminal trial. If the majority wants to hold that rape-shield statutes are
unconstitutional, it should do so forthrightly. At least, that way, we would have the issue
front and center, with an opportunity for debate and dissent.

B.

I cannot agree that the Michigan Court of Appeals unreasonably applied any
clearly established law, and I cannot join the majority opinion which, in effect,
invalidates all rape shield laws as violative of the Sixth Amendment. Therefore, I
respectfully dissent. I would reverse the district court’s judgment and deny the
petitioner’s request for habeas relief.