United States Court of Appeals
For the First Circuit
No. 09-1186
PETER J. SANTIAGO, JR.,
Petitioner, Appellant,
v.
STEVEN O'BRIEN,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Boudin, Selya and Stahl,
Circuit Judges.
Donald K. Freyleue for appellant.
Susanne G. Reardon, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief
for appellee.
December 22, 2010
BOUDIN, Circuit Judge. Peter J. Santiago, Jr., appeals
from the denial of his petition for a writ of habeas corpus. At
his state trial for trafficking cocaine, he was prevented from
introducing hearsay testimony arguably favorable to his defense--
namely, a friend's claim that the drugs at issue belonged to the
friend and not Santiago. He now seeks a writ of habeas corpus
premised solely on this alleged violation of his Sixth Amendment
right to present a defense.
On November 28, 1997, state and local police officers
executed a warrant to search Santiago's one-bedroom apartment in
Sunderland, Massachusetts. Inside a closet in the bedroom, they
found two caches of powder cocaine that together weighed more than
a kilogram. The search also revealed various tools of the trade,
including a digital scale (stored next to the drugs), approximately
five hundred small plastic bags, several thousand dollars in cash,
and a ledger containing an apparent record of transactions.
Santiago was indicted and tried in Massachusetts Superior
Court on one count of trafficking in two hundred or more grams of
cocaine. Mass. Gen. Laws ch. 94C, § 32E(b)(4) (2008). His defense
was that the drugs and drug-dealing paraphernalia found in his
apartment belonged to Oley Saradeth--an acquaintance who stayed in
Santiago's apartment from time to time and who died of pneumonia in
the interim between the police raid in November 1997 and the trial
in October 1998. Although Santiago testified that the drugs were
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Oley's, this effort to shift blame was hampered by the trial
court's refusal to admit into evidence a confession Oley
purportedly made to his brother, Fanta Saradeth.
Fanta Saradeth related the putative confession--said to
have been made in a private conversation between the brothers in
December 1997--at a voir dire conducted before trial. Fanta
claimed that Oley took responsibility for the drugs for which
Santiago had been arrested:
Well, [Oley] told me that the drugs that Peter
got arrested for was his, and I was stunned.
I didn't know what to say. And he just told
me that, and then he said a week after he had
been arrested, that he had got pulled over and
been arrested, and he didn't know what to do.
And he said he told him where he had it and
went and got it. And that was it. That's all
he told me. I didn't want to know anymore.
That's all I wanted to know. I didn't want to
have nothing to do with it.
Fanta further testified that "the drugs" referred to an unknown
quantity of cocaine.
On cross-examination, Fanta clarified his statement,
saying that Oley told him that he (Oley) had been stopped in a car
a week before Santiago's arrest; that Oley had drugs in the car
when stopped; and that the police officer who arrested Oley
demanded to know where he had gotten the drugs. Fanta claimed that
Oley answered the officer's question, but Fanta denied knowing what
answer Oley had given. According to Fanta, Oley visited Santiago's
apartment at some point in the week before Santiago's arrest.
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Fanta also testified at the voir dire that on April 27,
1998--the day of his brother's death--Oley, Fanta, and Fanta's
roommate drove together to the hospital. En route, Oley allegedly
asked Fanta to try to get hold of Santiago so that Oley could
apologize. Fanta did not inquire further and assumed that the
apology related back to the earlier claim that Santiago had been
arrested for Oley's drugs. Santiago was prepared to call the
roommate at the voir dire to corroborate Fanta's account of this
conversation.
The trial court excluded both conversations. The
December 1997 admissions by Oley, proffered as statements against
penal interest, were excluded on the grounds that they were not
truly against Oley's penal interest--being made privately to his
brother--and were in any event untrustworthy; the April 1998
apology was excluded on the grounds that it had not been properly
disclosed to the Commonwealth and also was not against Oley's penal
interest when made. It is these rulings that are the subject of
the case now before us.
Ultimately, Santiago was convicted by the jury and
sentenced to fifteen years in state prison. On direct review, the
Massachusetts Appeals Court affirmed, saying: "For substantially
the reasons advanced and the authorities cited in the
Commonwealth's Memorandum of Law in Lieu of Brief at 6-20, we
discern neither error nor abuse of discretion. Judgement
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affirmed." Commonwealth v. Santiago, 746 N.E.2d 595 (Mass. App.
Ct. 2001) (unpublished table decision). The Supreme Judicial Court
("SJC") denied further appellate review. Commonwealth v. Santiago,
757 N.E.2d 730 (Mass. 2001) (unpublished table decision).1
Santiago then filed a timely petition for a writ of
habeas corpus in federal district court, 28 U.S.C. § 2254 (2006),
challenging the exclusion of Fanta's testimony on the ground that
it violated his rights under the Sixth Amendment to present
witnesses in his defense. On this issue, the district court
ultimately denied relief but granted a certificate of
appealability. Santiago also attacked his conviction on other
grounds, but they were not certified for further review and are not
before us.
Our review of the district court's denial of habeas
relief is de novo. Fortini v. Murphy, 257 F.3d 39, 44 (1st Cir.
2001), cert. denied, 535 U.S. 1018 (2002). Santiago has exhausted
the state remedies available to him for his Sixth Amendment claim,
having presenting it both to the Appeals Court and in his request
for further review by the SJC. See 28 U.S.C. § 2254(b)(1).
Because the Appeals Court decided the claim on the merits, its
legal ruling is also arguably entitled to respect under the
1
Santiago's efforts to secure post-conviction relief in the
state courts were equally unsuccessful. See Commonwealth v.
Santiago, 823 N.E.2d 436 (Mass. App. Ct.) (unpublished table
decision), review denied, 830 N.E.2d 1088 (Mass. 2005).
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deferential standard ordinarily entailed by statute--i.e., that the
state court ruling must stand unless contrary to, or an
unreasonable application of, settled Supreme Court precedent, id.
§ 2254(d)(1).
This would be so in this circuit even though the Appeals
Court acted by summary disposition, merely cross-referencing the
arguments in the Commonwealth's brief. See Clements v. Clarke, 592
F.3d 45, 55-56 (1st Cir.), cert. denied, 130 S. Ct. 3475 (2010).
The decision remains one on the merits and the basis is easily
discerned. But, as this view may be affected by a pending Supreme
Court case, Richter v. Hickman, 578 F.3d 944 (9th Cir. 2009), cert.
granted sub nom. Harrington v. Richter, 130 S. Ct. 1506 (argued
Oct. 12, 2010) (No. 09-587), we note that our disposition would be
the same even if we gave no deference whatever to the Appeals
Court.
Santiago spends much of his energy attempting to show
that the exclusion of Oley's statement was error as a matter of
Massachusetts hearsay law. An error of state law standing alone is
not sufficient for habeas relief, Estelle v. McGuire, 502 U.S. 62,
67-68 (1991), nor is it necessary to the federal constitutional
claim. Indeed, the leading Supreme Court precedents holding
evidentiary rulings to be constitutional error tend to arise
precisely where the state court's ruling--whether excluding
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evidence (as here) or admitting it over defense objection--was
correct under state law.
The more dramatic examples come in the latter domain.
There, under the aegis of the Confrontation Clause, the Supreme
Court has held it to be a constitutional violation to admit against
a defendant certain kinds of inculpating hearsay statements.
Typically the cases involve hearsay that falls within some hearsay
exception but where, nevertheless, the Supreme Court forbids
admission in the particular circumstances--the doctrine is still
evolving--absent a prior opportunity for the defendant to cross-
examine the out-of-court declarant.2
The converse problem, presented here, is the exclusion
under state law of exculpatory hearsay that the defendant wants
admitted. These cases turn on due process notions of fairness.
See O'Brien v. Marshall, 453 F.3d 13, 19-20 (1st Cir. 2006). The
locus classicus is Chambers v. Mississippi, 410 U.S. 284 (1973),
where an apparently reliable third-party confession--corroborated
by other evidence and offered to exculpate the accused in a capital
case--was excluded in strict compliance with the state's settled
(but peculiarly rigid) view of the interplay between the "vouching
for your witness" rule and the pertinent hearsay exception for
declarations against penal interest, id. at 288-94.
2
See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531-32
(2009); Davis v. Washington, 547 U.S. 813, 828-32 (2006); Crawford
v. Washington, 541 U.S. 36, 65-68 (2004).
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Most Sixth Amendment challenges do not involve such
extreme facts, and the Supreme Court has been cautious about
extending Chambers. See United States v. Scheffer, 523 U.S. 303,
316 (1998); Montana v. Egelhoff, 518 U.S. 37, 52-53 (1996)
(plurality opinion). Not every exclusion of hearsay favorable to
the defendant violates the right to present a defense. Scheffer,
523 U.S. at 316. The Constitution ultimately demands a fair
opportunity to present a defense, and it is generally fair to force
a defendant to comply with established rules of procedure and
evidence and to abide by the balancing of values such rules
represent. Chambers, 410 U.S. at 302.
A central concern of evidence law, and the rule against
hearsay in particular, is with the reliability of evidence--
especially out-of-court statements by one not available for cross-
examination. The pattern created by hearsay law and its exceptions
is to exclude such statements save in categories deemed reliable;
and sometimes--even within the category--a statement may be
excluded if untrustworthy, e.g., Fed. R. Evid. 803(6), or not also
shown to be reliable, e.g., Fed. R. Evid. 803(18).3
In the present case, Santiago proffered Oley's alleged
December 1997 confession as a statement against penal interest. In
3
Lack of reliability is not the only value to be balanced
against possible relevance, see, e.g., Michigan v. Lucas, 500 U.S.
145, 149-50 (1991) (protection of victim); Taylor v. Illinois, 484
U.S. 400, 410-11 (1988) (orderly presentation of evidence), but it
is the usual concern in hearsay cases.
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Massachusetts, a statement against penal interest is not admissible
to exculpate the defendant in a criminal trial unless (i) the
declarant is unavailable; (ii) making the statement "tended so far
to subject the declarant to criminal liability that a reasonable
man in the declarant's position would not have made it unless he
believed it to be true," Commonwealth v. Carr, 369 N.E.2d 970, 973
(Mass. 1977); and (iii) circumstances corroborate the
trustworthiness of the statement. Commonwealth v. Drew, 489 N.E.2d
1233, 1239-41 (Mass. 1986); Carr, 369 N.E.2d at 973-74.
This is a fairly conventional statement of the rule,
closely parallel to the federal version, Fed. R. Evid. 804(b)(3),
and there is no direct claim by Santiago that the rule in the
abstract is unconstitutional. Rather, his focus is on the
application of the rule by the state court to the present facts--
essentially, an "as applied" challenge to the fit between the
generalization and the circumstances. If the state court's
assessment was a reasonable application of a reasonable rule, it
could hardly violate due process standards of fairness.
In excluding the December 1997 confession, the trial
court accepted the Commonwealth's argument that a statement made
only to one's brother is not genuinely against the speaker's penal
interest because the speaker assumes the statement will remain
private; further, the court found that the statement was
uncorroborated by any circumstances indicating its trustworthiness.
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Whether the first ground (if intended as a blanket statement rather
than a judgment on the particular facts) accords with Massachusetts
law is unclear. Compare Commonwealth v. Marple, 524 N.E.2d 863,
869 (Mass. App. Ct. 1988), with Commonwealth v. Galloway, 534
N.E.2d 778, 781 (Mass. 1989). Elsewhere, statements made in
private--even when the possibility of future disclosure seems
remote--may at least on some facts nevertheless be against penal
interest.4
Yet private statements, even if potentially against penal
interest, are not all the same, and the trial court's grounds of
decision in this case overlap: a private confession to a brother,
where there is nothing to suggest it will become public while the
speaker is alive, is at best minimally "against penal interest" and
certainly not (standing alone) shown to have a further hallmark of
trustworthiness. Here, the supposed confession, as clarified on
cross-examination, is not even a straightforward exculpation of
Santiago. It was surely not shown to be "trustworthy" hearsay.
In the end, Santiago has failed to show that the state
court decision was contrary to, or an unreasonable application of,
clearly established federal law as determined by the Supreme Court;
indeed, as already noted, our decision would be the same even if we
4
E.g., United States v. Barrett, 539 F.2d 244, 251 (1st Cir.
1976) (statement to friends over cards); United States v. Goins,
593 F.2d 88, 90-91 (8th Cir.) (statement to daughter in private),
cert. denied, 444 U.S. 827 (1979); 2 McCormick on Evidence § 319,
at 386 n.24 (K. Broun ed., 6th ed. 2006) (collecting cases).
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were considering the issues de novo. For the sake of completeness,
we note two further possible difficulties with petitioner's claim,
although it is unnecessary to resolve either definitively.
First, it could be argued that a further inference of
untrustworthiness might be drawn from the weighty evidence against
Santiago. Santiago's apartment was a one-bedroom unit and had only
a single bed; he told the police that he lived there alone (and
bills, receipts, and other papers confirmed this view); and much of
the cocaine in the apartment was found inside a box in the bedroom
closet addressed to one "Johnny R. Santiago" at Santiago's
apartment number. Santiago's middle name is John.
Santiago says that contradictory trial evidence is not to
be considered in assessing the trustworthiness of a declaration
against penal interest, citing our decision in Barrett, 539 F.2d at
253. But that case says no such thing, and some precedent--in our
court, in Massachusetts courts, and in the Supreme Court--might
suggest the contrary, e.g., Chambers, 410 U.S. at 300-01; United
States v. Millan, 230 F.3d 431, 437 (1st Cir. 2000); Drew, 489
N.E.2d at 1241. Here, the result is the same either way.
Second, even if error was found, the independent strong
evidence that the drugs were Santiago's could be relevant to the
question of prejudice. A constitutional violation, if violation
there were, ordinarily would not merit habeas relief unless it had
"'substantial and injurious effect or influence in determining the
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jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); cf.
Fortini, 257 F.3d at 48. Whether Santiago could establish such
harmful effect is at best doubtful; but we need not decide the
question as we find no error.
Affirmed.
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