United States Court of Appeals
For the First Circuit
No. 09-2508
TROY BROWN,
Petitioner, Appellant,
v.
PAUL RUANE,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Dennis Shedd for appellant.
Jessica V. Barnett, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief, for appellee.
January 5, 2011
LIPEZ, Circuit Judge. Following a jury trial in the
Massachusetts Superior Court, petitioner Troy Brown was convicted
of armed assault with intent to rob a person sixty years of age or
older. Rejecting Brown's contention that the trial court
unconstitutionally restricted his cross-examination of two
investigating police officers in contravention of the Sixth and
Fourteenth Amendments of the United States Constitution, the
Massachusetts Appeals Court affirmed Brown's conviction in an
unpublished memorandum of decision. See Commonwealth v. Brown, 857
N.E.2d 507 (unpublished table decision), 2006 WL 3392089 (Mass.
App. Ct. Nov. 24, 2006). Both the Massachusetts Supreme Judicial
Court and the United States Supreme Court denied discretionary
review. See Commonwealth v. Brown, 861 N.E.2d 28 (Mass. 2007);
Brown v. Massachusetts, 552 U.S. 834 (2007). Brown then petitioned
in federal district court for a writ of habeas corpus, contending
that the Appeals Court's analysis of his confrontation claim was
either contrary to the Supreme Court's holding in Delaware v. Van
Arsdall, 475 U.S. 673 (1986), or was an unreasonable application of
both Van Arsdall and established principles of due process. The
district court disagreed and denied the petition. After careful
consideration, we affirm.
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I.
We recite the relevant facts as set forth by the Appeals
Court, supplemented where necessary by our review of the record.1
On August 19, 2002, Daniel Lynch was assaulted by three
young men during a late night walk through the "Corky Row"
neighborhood of Fall River, Massachusetts. Lynch, who was sixty-
five years old and in poor health, was initially confronted during
his walk by Brown and a second man, Tyrone Smith. Lynch and Smith
engaged in a brief verbal altercation. Smith then struck Lynch on
the side of the head, knocking him against a fence and then onto
the street. Lynch testified that, at this point, he witnessed
Brown standing approximately three to five feet away from him,
holding a small bicycle over his head. When Brown asked Lynch
whether he had any money, Lynch replied that he did not. Lynch
attempted to leave the area, but Brown followed close behind.
Lynch also noticed a third man approaching from behind Brown.
Smith suddenly reappeared and struck Lynch again. Lynch then felt
a second blow to the top of his head that knocked him out briefly.
When Lynch regained consciousness, Brown was going through his
pockets. The assailants left after finding nothing.
1
On habeas review, we presume the correctness of the state
court's factual findings. See 28 U.S.C. § 2254(e)(1). The
petitioner does not challenge the factual basis of the Appeals
Court's decision except for a lone statement, which we discuss
infra note 7.
-3-
Lynch was interviewed later that morning by police
officer David Gouveia. At that time, Lynch described the man who
had held the bicycle and had gone through his pockets as being five
feet six inches in height, 140 pounds, with long sideburns, a
slight moustache, and a short stringy beard. Officer Gouveia
showed Lynch a book of photographs, which included one of Smith but
not one of Brown. Lynch was unable to identify anyone in the
photographs at that time. Approximately two weeks later, Officer
Gouveia showed Lynch a second photo array, this time containing
only seven photographs. From this array, Lynch identified Smith as
the man who had punched him and Brown as the man who had held the
bicycle.
Brown was arrested on September 11, and indicted on
September 25.2 At the time of his arrest, Brown was attempting to
crawl under a bed in his apartment. Brown later told police that
he had been too drunk to remember anything on the night in
question, but denied being involved in the assault.
Prior to his trial, Brown unsuccessfully moved in limine
to introduce into evidence a hearsay statement that Smith had made
to police following his arrest. Smith apparently admitted to
encountering Lynch on the night in question. He informed police,
2
Brown was indicted on two charges, but was convicted only of
armed assault with intent to rob a person sixty years of age or
older. He was acquitted of assault and battery on a person sixty
years of age or older. Smith was indicted on identical charges,
and pleaded guilty prior to Brown's trial.
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however, that he had been with a man named Cagney Bettencourt, not
Brown, at the time of the incident and that neither he nor
Bettencourt had assaulted Lynch.3 Brown wished to use Smith's
statement to impeach the credibility of Lynch's identification of
Brown from the photo array, to demonstrate the likelihood that
Bettencourt was the true culprit, and to cast doubt on the
thoroughness of the police investigation. Although the trial judge
denied Brown's motion, he ruled that defense counsel could inquire
whether the police had interviewed Smith and what action, if any,
they took as a result of that interview.
Lynch testified for the Commonwealth at the trial; he
again identified Brown as the man who had held the bicycle. He
further testified that he was sure of his identification. Brown's
trial counsel cross-examined Lynch regarding his ability to make an
accurate identification. The Commonwealth also called as witnesses
both Officer Gouveia and the officer to whom Smith had made his
statement, Officer James Smith. Brown's counsel cross-examined
Officer Gouveia regarding the discrepancy between Lynch's initial
physical description of his assailant and Brown's physical
characteristics.4 During this cross-examination, Brown's counsel
3
Smith claimed to have witnessed a person known only as
"Triz" punch Lynch. Smith was unable to identify "Triz" when shown
a photo array that included a picture of Brown.
4
Brown is six feet one inch in height. There was also no
evidence that Brown had ever displayed facial hair.
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also elicited from Officer Gouveia that Bettencourt's name had
surfaced during the investigation, and he introduced a photograph
of Bettencourt in evidence.
Notwithstanding his prior ruling, however, the trial
judge sustained hearsay objections to defense counsel's repeated
inquiry into whether Officer Gouveia's investigation of Bettencourt
began after police interviewed Smith and whether Officer Gouveia
considered Bettencourt to be a suspect during his investigation.5
The trial judge sustained similar objections to defense counsel's
inquiry into whether Officer Smith had interviewed Smith or had
occasion to show him any photographs.
Although Brown presented alibi witnesses to bolster his
misidentification defense, and although his trial counsel argued to
the jury that Bettencourt better fit the physical description of
Lynch's assailant, Brown chose not to call Smith as a witness in
his defense. As noted by the Appeals Court, "[t]rial counsel chose
not to call Smith as a witness because he was not sure that Smith
5
The trial judge held a sidebar conference following the
latter inquiry, at which the prosecutor explained that he objected
to the question because "what counsel is trying to do is trying to
invite the jury to draw the inference as to what the hearsay
statement was." The following exchange then occurred:
THE COURT: Where are you heading with this?
[DEFENSE COUNSEL]: For hearsay, simply to contradict
testimony from certainly Mr. Lynch as to the identity of
the assailant. It's not information. It's for hearsay
purposes.
THE COURT: No, sustained.
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would affirm his earlier statement to police." Brown, 2006 WL
3392089, at *2.
Brown appealed his conviction, asserting, among other
things, that the trial judge's limitation on his cross-examination
of the two officers denied him the right to confront the witnesses
against him in violation of Article XII of the Massachusetts
Declaration of Rights and the Sixth and Fourteenth Amendments to
the United States Constitution. The Appeals Court denied relief.
In so doing, that court employed a balancing test established by
the Massachusetts Supreme Judicial Court in Commonwealth v.
Kirouac, 542 N.E.2d 270, 273 (Mass. 1989), and reaffirmed in
Commonwealth v. Miles, 648 N.E.2d 719, 724 (Mass. 1995). According
to the Kirouac court:
In deciding whether a defendant's
constitutional right to cross-examine and thus
confront a witness against him has been denied
because of an unreasonable limitation of
cross-examination, a court must weigh the
materiality of the witness's direct testimony
and the degree of the restriction on
cross-examination. The determination can only
be made on a case-by-case basis.
Kirouac, 542 N.E.2d at 273.
Applying the Kirouac test to Brown's case, the Appeals
Court first noted that "testimony from Officers Smith and Gouveia
regarding their investigation of Bettencourt was marginally
relevant to the Commonwealth's case, which was based almost
entirely on Lynch's identification of the defendant." Brown, 2006
-7-
WL 3392089, at *3. The court then explained that the defendant had
been permitted ample opportunity to generate reasonable doubt about
the accuracy of Lynch's identification through unfettered cross-
examination of Lynch, extensive cross-examination of Officer
Gouveia, and defense counsel's forceful closing argument. The
court concluded that Brown had not been prejudiced by the
limitations on cross-examination and thus that his right to
confrontation had not been violated.
Brown filed a petition for a writ of habeas corpus in
federal district court in April 2008, arguing that the Kirouac test
is contrary to the clearly established rule enunciated by the
Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673 (1986), and
that, alternatively, the Appeals Court unreasonably applied the
Supreme Court's relevant Sixth and Fourteenth Amendment
jurisprudence in concluding that the restrictions on cross-
examination did not deny him the right to confront the witnesses
against him and to thereby present a complete defense. He also
contended that the Appeals Court decision contained an unreasonable
factual finding. After first rejecting the government's procedural
arguments concerning exhaustion and judicial estoppel, the district
court denied Brown's petition on the merits.6 The court agreed
6
The government contends that the petitioner's claim under
the "contrary to" prong of § 2254(d)(1) is either unexhausted or
barred by the principle of judicial estoppel because the petitioner
argued to the Appeals Court that Miles, which quotes from Kirouac,
provided the applicable legal standard and, further, treated the
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with Brown that Van Arsdall is a source of clearly established
federal law relevant to the petition, but concluded that the
Appeals Court's decision was neither contrary to nor an
unreasonable application of Van Arsdall.
II.
We review the district court's denial of habeas relief de
novo and may affirm on any ground made manifest by the record.
Pike v. Guarino, 492 F.3d 61, 69 (1st Cir. 2007). Pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a
federal court may not grant habeas relief with respect to any claim
that was adjudicated on the merits in state court unless the state
court's decision either (1) "was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States," or (2) "was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28 U.S.C.
§ 2254(d)(1)-(2). The instant petition implicates only the first
holding of Van Arsdall as consistent with the Kirouac test in his
petition to the Supreme Judicial Court for further appellate
review. However, we need not resolve the government's exhaustion
argument if we conclude on the merits that the denial of the
petition for habeas corpus was proper. See 28 U.S.C. § 2254(b)(2)
("An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State."). We therefore
elect to begin our analysis by addressing the substance of the
petitioner's claims.
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ground for relief: that the Appeals Court's decision was contrary
to, or involved an unreasonable application of, federal law.7
A state court decision is "contrary to" clearly
established federal law as determined by the Supreme Court if it
"contradicts the governing law set forth in the Supreme Court's
cases or confronts a set of facts that are materially
indistinguishable from a decision of the Supreme Court and
nevertheless arrives at a result different from its precedent."
John v. Russo, 561 F.3d 88, 96 (1st Cir. 2009) (internal quotation
marks omitted) (alterations omitted). The statutory phrase
"contrary to" "suggests that the state court's decision must be
substantially different from the relevant precedent of [the
Supreme] Court." Williams v. Taylor, 529 U.S. 362, 405 (2000)
(emphasis added). By contrast, a state court adjudication involves
an "unreasonable application of" clearly established federal law if
the state court "identifies the correct governing legal principle
7
In the district court, the petitioner asserted that the
Appeals Court made an unreasonable factual determination when it
stated that Lynch described to Officer Gouveia only "two of the
three young men who attacked him." Brown, 2006 WL 3392089, at *2.
The district court rejected the claim, noting that AEDPA allows
state courts "some room for mistakes," such as imprecise factual
descriptions. See Hurtado v. Tucker, 245 F.3d 7, 12 (1st Cir.
2001). On this appeal, the petitioner maintains that the Appeals
Court erred in its factual recitation, but he explicitly disclaims
that the error rises to the level required to entitle him to relief
under the statute's second prong, § 2254(d)(2). Instead, he
suggests that the Appeals Court's misstatement merely highlights
the general unreasonableness of its decision. Accordingly, we
confine the scope of our review to the statute's first prong,
§ 2254(d)(1).
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from [the Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case." Id. at 413.
"Unreasonableness" is an objective standard -- one that requires
some increment of incorrectness beyond error that, though not
necessarily great, "must be great enough to make the decision
unreasonable in the independent and objective judgment of the
federal court." McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir.
2002) (en banc). For either analysis, "clearly established federal
law" refers to "the governing legal principle or principles set
forth by the Supreme Court at the time the state court renders its
decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A legal
principle is "clearly established" only when it is embodied in a
holding of the Supreme Court. Thaler v. Haynes, ___ U.S. ___, 130
S. Ct. 1171, 1173 (2010) (per curiam).
III.
On this appeal, the petitioner reasserts his contention
that the trial court violated his rights under the Sixth and
Fourteenth Amendments of the United States Constitution to confront
prosecution witnesses and to thereby present a complete defense.
He claims that he is entitled to habeas relief on two alternate
grounds. The petitioner's central contention is that the Kirouac
balancing test applied by the Appeals Court is contrary to the
Supreme Court's Van Arsdall decision because the Kirouac test
requires a reviewing court to weigh the materiality of a witness's
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direct testimony as a factor in determining whether the
Confrontation Clause was violated, rather than as a factor in
determining whether any such violation was harmless.8 According to
the petitioner, Van Arsdall stands for the proposition that a
restriction on cross-examination violates the Confrontation Clause
whenever the proposed cross-examination would have left the jury
with "a significantly different impression of the issue for which
the evidence was offered." Therefore, he argues, the only factor
relevant to finding a constitutional violation is the effect that
the excluded testimony would have had on the jury. The petitioner
also notes that the Van Arsdall Court explicitly included "the
importance of the witness's testimony in the prosecution's case"
among the numerous factors that may be relevant to a reviewing
court's harmless error analysis, which he suggests creates a
necessary implication that witness materiality is an issue on which
the government bears the sole burden of proof. See Van Arsdall,
475 U.S. at 684.
8
The distinction is not insignificant. Under both
Massachusetts and federal law, a defendant bears the burden on both
direct and collateral review of demonstrating a constitutional
violation. Once a violation is found, the government bears the
burden of demonstrating that the error was harmless. See, e.g.,
United States v. Casas, 356 F.3d 104, 121 (1st Cir. 2004);
Commonwealth v. Depina, 922 N.E.2d 778, 788 (Mass. 2010). The
essence of the petitioner's claim, therefore, is that the Kirouac
test impermissibly burdened him with proving the materiality of the
officers' direct testimony when, in fact, it is the Commonwealth's
burden to prove that the officers' testimony was immaterial.
-12-
Alternatively, the petitioner contends that the Appeals
Court's decision was objectively unreasonable. He cites a litany
of Supreme Court cases holding that, under the Sixth and Fourteenth
Amendments, restrictions on a defendant's right to elicit relevant
defense evidence may not be imposed arbitrarily or mechanistically,
and must not be disproportionate to the purposes that the
restrictions are designed to serve. See, e.g., Michigan v. Lucas,
500 U.S. 145, 149 (1991); Chambers v. Mississippi, 410 U.S. 284,
302 (1973). The petitioner contends that the restriction in his
case was arbitrary and disproportionate to its purpose because the
precluded testimony, describing Smith's custodial statement to the
officers and aspects of the subsequent police investigation of
Bettencourt, either was not hearsay or was hearsay that bore
particular indicia of reliability. He also faults the Appeals
Court's analysis for failing to address his argument that the
excluded evidence was necessary to clarify for the jury the
relevance of the remaining misidentification evidence. He believes
that, absent testimony about Smith's statement and the subsequent
police investigation, jurors were left with the mistaken impression
that Bettencourt was suspected by police of being the third
assailant (who was never identified), rather than an alternative
suspect to Brown.9
9
In particular, the petitioner draws our attention to the
following statement made by the prosecutor during closing argument:
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A. Clearly Established Federal Law
We begin by determining whether the petitioner's
constitutional challenge in state court was governed by any clearly
established federal law. A threshold determination that no holding
of the Supreme Court required application to the factual context
presented by the petitioner's claim is dispositive in the habeas
analysis. See generally Carey v. Musladin, 549 U.S. 70, 77 (2006);
accord House v. Hatch, 527 F.3d 1010, 1017 (10th Cir. 2008)
("Musladin has now dispelled the uncertainty: The absence of
clearly established federal law is dispositive under
§ 2254(d)(1)."). State courts are entitled to resolve "an open
question in [Supreme Court] jurisprudence" without triggering
federal court review under AEDPA. See Musladin, 549 U.S. at 76;
cf. Renico v. Lett, ___ U.S. ___, 130 S. Ct. 1855, 1866 (2010)
("AEDPA prevents defendants -- and federal courts -- from using
federal habeas corpus review as a vehicle to second-guess the
reasonable decisions of state courts."). If Supreme Court cases
"give no clear answer to the question presented," a state court's
resolution of a constitutional question may not serve as a basis
We have this other array that somehow [defense
counsel] wants to criticize the police for going back and
showing another photo array after Mr. Brown and Mr. Smith
had been arrested. Well, there was another person there
that night. Should the police stop looking for this
third person?
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for habeas relief. Wright v. Van Patten, 552 U.S. 120, 128 (2008)
(per curiam).
The Supreme Court has recently emphasized that whether
federal law is clearly established for the purpose of the habeas
statute is not simply a function of the clarity of the particular
legal principle relied upon by a petitioner, but also of the
clarity of that principle's application to the facts of the
petitioner's case.10 It has cautioned that reviewing courts must
be careful not to improperly turn the Court's context-specific
holdings into "blanket rule[s]." See Thaler, 130 S. Ct. at 1175.
Rather, we must look for Supreme Court precedent that either
"squarely addresses the issue" in the case or that articulates
legal principles that "clearly extend" to the new factual context.
10
In the last five terms, the Supreme Court has overturned
five federal grants of habeas corpus on the ground that the cited
Supreme Court precedent had not been clearly established in the
factual context presented. See Berghuis v. Smith, ___ U.S. ___,
130 S. Ct. 1382, 1392-94 (2010) (holding that the Supreme Court's
"pathmarking decision" in Duren v. Missouri, 439 U.S. 357 (1979),
"hardly establishes -- no less 'clearly' so -- that [the
petitioner] was denied his Sixth Amendment right" on
distinguishable facts); Thaler, 130 S. Ct. at 1175 (reversing a
grant of habeas relief where "[t]he part of [the Supreme Court's
precedent] on which the Court of Appeals relied concerned a very
different problem"); Van Patten, 552 U.S. at 125 (reversing grant
of habeas where Supreme Court precedent did not "squarely
address[]" the question at issue); Schriro v. Landrigan, 550 U.S.
465, 478 (2007) (reversing grant of habeas where Supreme Court had
never addressed "a situation in which a client interferes with
counsel's efforts to present mitigating evidence"); Musladin, 549
U.S. at 77 (noting a "contrast" between existing Supreme Court
precedent involving "state-sponsored courtroom practices" and the
conduct "to which Musladin objects" involving "private-actor
courtroom conduct").
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See Van Patten, 552 U.S. at 123-125. Compare Panetti v.
Quarterman, 551 U.S. 930, 949-50 (2007) (extending precedent
establishing the "basic requirements" of due process to new factual
context), with Musladin, 549 U.S. at 77 (denying habeas petition
where no holding of the Supreme Court "required" the application of
precedent to distinguishable facts).
1. The Inapplicability of Van Arsdall as a Source of
Clearly Established Federal Law.
Petitioner's reliance on Van Arsdall as the primary legal
authority governing his confrontation claim is misplaced. Van
Arsdall involved a constitutional challenge to restrictions imposed
on a defendant's impeachment, on cross-examination, of a
prosecution witness for bias. There, the Supreme Court announced
that "a criminal defendant states a violation of the Confrontation
Clause by showing that he was prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical form
of bias on the part of the witness, and thereby 'to expose to the
jury the facts from which jurors . . . could appropriately draw
inferences relating to the reliability of the witness.'" Van
Arsdall, 475 U.S. at 680 (alteration in original) (quoting Davis v.
Alaska, 415 U.S. 308, 318 (1974)).
Before turning to the facts of the case before it, the
Van Arsdall Court emphasized that "trial judges retain wide
latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on . . . cross-examination." Id. at 679. It
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explained that such "reasonable limits" may be justified by
concerns about, among other things, "harassment, prejudice,
confusion of the issues, the witness' safety, or interrogation that
is repetitive or only marginally relevant." Id. It also
reiterated its previous admonition that "'the Confrontation Clause
guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.'" Id. (quoting Delaware
v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)). The Van
Arsdall Court nevertheless concluded that, "[b]y . . . cutting off
all questioning about an event that the State conceded had taken
place and that a jury might reasonably have found furnished the
witness a motive for favoring the prosecution in his testimony, the
court's ruling violated [Van Arsdall]'s rights secured by the
Confrontation Clause." Id. (emphasis added).
The Supreme Court's application of Van Arsdall has always
involved evaluation of restrictions on cross-examination intended
to impeach the credibility of the witness being examined.
Nonetheless, the petitioner invites us to hold that Van Arsdall
clearly extends to a restriction on his cross-examination of two
prosecution witnesses (Officer Gouveia and Officer Smith) for the
purpose of impeaching a third (Lynch). We decline the invitation.
Van Arsdall's application of its own rule was both narrow
and fact-specific. That narrow application and the decision's
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bias-specific considerations provide little guidance on how the
rule ought to apply in a case as different as the one at bar.
Indeed, the blanket rule suggested by the petitioner, under which
the Confrontation Clause is violated by any restriction on
cross-examination excluding evidence that would have left the jury
with "a significantly different impression of the issue for which
the evidence was offered," reflects the consequences of unmooring
the rule articulated in that decision from its direct impeachment
context.
Moreover, applying Van Arsdall to the facts of the
instant petition is in tension with both the internal logic of the
Van Arsdall decision and existing case law. A central premise of
the Van Arsdall decision was that "the focus of the . . . inquiry
in determining whether the confrontation right has been violated
must be on the particular witness, not on the outcome of the entire
trial," because "the focus of the Confrontation Clause is on
individual witnesses." Id. at 680. Yet the primary evidentiary
function of the testimony sought by the petitioner would have been
to impeach the identification made by Lynch, a witness other than
the one being examined. In contrast to Van Arsdall's explicit
witness-specific approach, the petitioner implores us to hold that
Van Arsdall "clearly established" that the significance to his
defense of that missed extrinsic impeachment opportunity is the
single relevant factor in finding a Confrontation Clause violation.
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However, we have previously explained that the Supreme Court's
Confrontation Clause jurisprudence left a defendant's right to
introduce extrinsic impeachment evidence as an open constitutional
question.11 See, e.g., United States v. Catalán-Roman, 585 F.3d
453, 465 (1st Cir. 2009) ("Although the ability to pursue an
impeaching line of inquiry with the introduction of extrinsic
evidence supporting that inquiry might be viewed as part and parcel
of the right to cross-examination, this circuit has yet to decide
whether the Confrontation Clause provides defendants a right to
impeach witnesses through extrinsic evidence.").
Since the rule of Van Arsdall was articulated in a case,
and applied to circumstances, much different from the circumstances
in which the petitioner now seeks to employ it, we cannot conclude
that Van Arsdall "squarely established" a "specific legal rule"
applicable to the petitioner's case. See Knowles v. Mirzayance,
___ U.S. ___, 129 S. Ct. 1411, 1419 (2009). Van Arsdall does
provide a "clearly established" federal rule for a class of cases,
but it is not the class within which the petitioner's case falls.
Therefore, the Kirouac test is not "contrary to" the rule Van
Arsdall adopted nor was Van Arsdall unreasonably applied in this
case.
11
Although not valid sources of clearly established federal
law under AEDPA, "[d]ecisions from the lower federal courts may
help inform the AEDPA analysis to the extent that they state the
clearly established federal law determined by the Supreme Court."
Aspen v. Bissonnette, 480 F.3d 571, 574 n.1 (1st Cir. 2007).
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2. Clearly Established Law on the Right to Present a
Defense
As noted, the petitioner does not rely exclusively on Van
Arsdall in pursuing habeas relief. He also argues that the
restrictions on his cross-examination of Officer Gouveia and
Officer Smith impaired his right, protected by clearly established
law under the Sixth and Fourteenth Amendments, to present a
complete defense. He suggests that testimony from the officers
describing both Smith's post-arrest statement and the subsequent
police investigation of Bettencourt was needed not only to impeach
Lynch's in-court and out-of-court identifications of the
petitioner, but also to demonstrate to the jury the likelihood that
Bettencourt was the true culprit and to invite reasonable doubt
based on inadequacies in the police investigation. He therefore
challenges the objective reasonableness of the Appeals Court's
conclusion that he was not prejudiced by the restrictions on cross-
examination.
It is well established that a state's "broad latitude" to
define rules for the exclusion of evidence and to apply those rules
to criminal defendants has constitutional limits. See Clark v.
Arizona, 548 U.S. 735, 789 (2006). Evidentiary restrictions that
hinder a defendant's ability to present defense evidence can, in
some circumstances, be severe enough to violate due process. See
Chambers, 410 U.S. at 302. "Whether rooted directly in the Due
Process Clause of the Fourteenth Amendment, or in the Compulsory
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Process or Confrontation clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants 'a meaningful
opportunity to present a complete defense.'"12 Crane v. Kentucky,
476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S.
479, 485 (1984)) (internal citations omitted).
The Supreme Court has described this right as "a
fundamental element of due process of law," Washington v. Texas,
388 U.S. 14, 19 (1967), which "is abridged by evidence rules that
'infring[e] upon a weighty interest of the accused' and are
'arbitrary' or 'disproportionate to the purposes they are designed
to serve.'" Holmes v. South Carolina, 547 U.S. 319, 324 (2006)
(quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)
(alteration in original) (internal quotation marks omitted)). Even
a generally defensible rule of evidence may be applied so as to
produce an unconstitutional infringement. White v. Coplan, 399
F.3d 18, 24 (1st Cir. 2005).
It is also clear that a defendant's right to elicit
exculpatory defense evidence through cross-examination falls within
the ambit of this longstanding right. See, e.g., Chambers, 410
12
In his brief, the petitioner principally characterizes the
right to present a defense as one secured by the Confrontation
Clause. For the purpose of this appeal, it is unnecessary for us
to resolve whether the right is rooted in the Sixth Amendment and
applied to the states through the Fourteenth Amendment, or whether
it is rooted directly in the Due Process Clause of the Fourteenth
Amendment. Cf. Pike, 492 F.3d at 78 n.8. See generally United
States v. Scheffer, 523 U.S. 303, 307-08 & n.3 (1998).
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U.S. at 302 (holding that a defendant was denied a meaningful
opportunity to present a complete defense where he was allowed
neither to cross-examine an alternative suspect in the case nor to
call witnesses for the purpose of impeaching that suspect's
testimony); Catalán-Roman, 585 F.3d at 465-66 (evaluating a
defendant's right to present extrinsic impeachment evidence as a
due process claim where the defendant's failure to address adverse
precedent had waived his argument under the Confrontation Clause).
Despite the generality of these principles, "AEDPA does
not 'require state and federal courts to wait for some nearly
identical factual pattern before a legal rule must be applied.'"
Panetti, 551 U.S. at 953 (quoting Musladin, 549 U.S. at 81
(Kennedy, J., concurring in judgment)). Nevertheless, in order to
be entitled to relief, the petitioner must meet his burden of
demonstrating that the Appeals Court's decision reflects an
unreasonable application of the clearly established "arbitrary and
disproportionate" standard to the facts of his case.
B. The Appeals Court's Application of Federal Law
1. Deference Under § 2254(d)(1)
In evaluating a state court's application of federal law,
our inquiry "is not how well reasoned the state court decision is,
but whether the outcome is reasonable." Hurtado v. Tucker, 245
F.3d 7, 20 (1st Cir. 2001). In this regard, "the most important
point is that an unreasonable application of federal law is
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different from an incorrect application of federal law." Williams,
529 U.S. at 410. Moreover, the Supreme Court has explained that
"evaluating whether a rule application was unreasonable requires
considering the rule's specificity. The more general the rule, the
more leeway courts have in reaching outcomes in case-by-case
determinations." Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Our own decisions involving a defendant's constitutional
right to present a defense demonstrate the generality of the right
and the substantial element of judgment required of trial courts in
excluding defense evidence. See, e.g., Dolinger v. Hall, 302 F.3d
5, 11 (1st Cir. 2002) (affirming denial of habeas petition where
the exclusion of evidence still afforded the defendant "an adequate
opportunity" to challenge the witness's bias in other ways); United
States v. Cunan, 152 F.3d 29, 38-39 (1st Cir. 1998) (finding no
constitutional violation in the exclusion of hearsay evidence where
"sufficient evidence" of the defense theory remained); cf. United
States v. Holden, 557 F.3d 698, 704 (6th Cir. 2009) ("The key issue
is whether the jury had enough information to assess the defense's
theory of the case despite the limits placed on
cross-examination."). The Appeals Court's adjudication of the
petitioner's claim is therefore entitled to substantial deference
under AEDPA. See O'Laughlin v. O'Brien, 568 F.3d 287, 299 (1st
Cir. 2009) (noting that habeas review involves layering the
deference federal courts owe to state courts on top of the
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underlying standard governing the constitutional right asserted);
cf. Renico, 130 S. Ct. at 1865 (describing "the dual layers of
deference required by AEDPA" in cases where the standard applied by
a state appellate court is deferential to the trial court). We may
only upset the Appeals Court's decision if we conclude that it
falls outside of the "broader range of reasonable judgements" that
accompanies the application of so general a legal test. See Locke
v. Cattell, 476 F.3d 46, 51 (1st Cir. 2007).
Here, the Appeals Court concluded that, in light of the
defendant's numerous other avenues for advancing his
misidentification defense, "the restrictions placed upon the
defendant's cross-examination of Officers Smith and Gouveia did not
prejudice the defendant." Brown, 2006 WL 3392089, at *3. We
cannot say that outcome was unreasonable.
2. Restrictions on the Presentation of Evidence
The petitioner argues that the trial court imposed
"arbitrary and disproportionate" restrictions on his right to
present relevant evidence in his defense. First, he suggests that
the exclusion of Smith's statement on hearsay grounds was
"disproportionate to the ends that [the hearsay rule is] asserted
to promote," see Holmes, 547 U.S. at 321, because the statement
bears particular indicia of reliability that mitigated traditional
hearsay concerns. Second, he suggests that critical defense
evidence was arbitrarily excluded when the trial court exceeded the
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scope of its pre-trial ruling and sustained objections to questions
by defense counsel about whether Officer Gouveia initiated his
investigation of Bettencourt following a police interview of Smith,
whether Officer Gouveia considered Smith a suspect, and whether
Officer Smith interviewed or had occasion to show photographs to
Smith. The petitioner argues that the answers to these questions
did not depend on the truth of Smith's out-of-court statement, and
were admissible under state law as evidence of the police
investigation (or lack thereof) into Bettencourt as an alternative
suspect. See generally Commonwealth v. Cordle, 537 N.E.2d 130, 137
(Mass. 1989).
Smith's post-arrest statement implicating Bettencourt in
the assault is prototypical hearsay evidence. See Fed. R. Evid.
801(c). With rare exception, a trial court's exclusion of hearsay
evidence does not offend the Constitution. See Montana v.
Egelhoff, 518 U.S. 37, 42 (1996) (plurality opinion) (describing
the hearsay rule as "familiar and unquestionably constitutional");
Chambers, 410 U.S. at 298 ("The hearsay rule, which has long been
recognized and respected by virtually every State, is based on
experience and grounded in the notion that untrustworthy evidence
should not be presented to the triers of fact.").
The Appeals Court was presented with, and expressly
rejected, the petitioner's argument that the statement bore
particular indicia of reliability. On direct appeal, the
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petitioner asserted that Smith's statement was reliable because it
was self-incriminatory, see generally Chambers, 410 U.S. at 300-01,
and because it tended to show that another person committed the
crime, see generally Commonwealth v. O'Brien, 736 N.E.2d 841, 851
(Mass. 2000) (explaining that, under Massachusetts law, hearsay
evidence "may be admitted, in the judge's discretion, to show that
a third party might have committed the crime"). The Appeals Court
concluded that the trial court did not abuse its discretion in
excluding Smith's statement because the statement was not "in a
very real sense self-incriminatory" (since it was not made by
Bettencourt and denied both Smith and Bettencourt's participation
in the assault) and because it did not contain sufficiently
substantial "connecting links" between Bettencourt and the assault.
See Brown, 2006 WL 3392089, at *4-*5 (internal quotation marks
omitted). We see nothing unreasonable about the Appeals Court's
determination that the hearsay rule was properly applied to exclude
Smith's statement.
Turning to the other limitations placed on the
petitioner's cross-examination of Officer Smith and Officer Gouveia
regarding their investigation of Bettencourt, we disagree with the
petitioner's contention that the Appeals Court unreasonably failed
to find that the restrictions imposed in his case arbitrarily
infringed on his ability to present a complete defense. Even
assuming that some of the excluded testimony was otherwise proper
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and admissible for a non-hearsay purpose, which we need not decide,
we have been clear that "not every ad hoc mistake in applying state
evidence rules . . . should be called a violation of due process;
otherwise every significant state court error in excluding evidence
offered by the defendant would be a basis for undoing the
conviction." Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001).
As we have noted elsewhere, "the Supreme Court has rarely
overturned state convictions because evidence was excluded and has
in recent years made clear that only in extreme cases" will such
claims succeed. O'Brien, 453 F.3d at 20 (alterations omitted)
(internal quotation marks omitted); see also Ellsworth v. Warden,
333 F.3d 1, 7 (1st Cir. 2003) (en banc) (describing constitutional
challenges to restrictions on cross-examination as "tenable only
where the restriction is manifestly unreasonable or overbroad").
Provided that a defendant retains an adequate opportunity to
present his theory of the case, the Supreme Court has made clear
that a defendant's right to present relevant evidence "'may, in
appropriate cases, bow to accommodate other legitimate interests in
the criminal trial process.'" Lucas, 500 U.S. at 149 (quoting Rock
v. Arkansas, 483 U.S. 44, 55 (1987)).
As the Appeals Court recognized, despite the exclusion of
Smith's statement by the trial court, the petitioner was permitted
to establish through his cross-examination of Officer Gouveia that
Bettencourt's name had surfaced during the police investigation of
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the assault, that Officer Gouveia had attempted to locate
Bettencourt, and that Bettencourt better fit Lynch's physical
description of his assailant. The defendant was also provided a
full opportunity to cross-examine Lynch, the Commonwealth's most
important witness, and declined to exercise his right to call Smith
as a witness to his own statements. In light of these substantial
other opportunities to call the jury's attention to the likelihood
that Bettencourt was the true culprit and that the police
investigation of Bettencourt was suspect, we cannot say on this
record that the Appeals Court's conclusion that the petitioner was
not prejudiced by the preclusion of additional testimony from the
officers regarding the police investigation of Bettencourt was an
unreasonable application of clearly established law on the right to
present a defense.
Affirmed.
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