United States Court of Appeals
For the First Circuit
No. 01-2515
DONALD DOLINGER,
Petitioner, Appellant,
v.
TIMOTHY HALL,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
Nona E. Walker, with whom Committee for Public Counsel
Services, Public Defender Division, was on brief for petitioner.
William J. Meade, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief for respondent.
September 4, 2002
CYR, Senior Circuit Judge. Appellant Donald Dolinger
seeks to set aside a district court judgment which dismissed the
habeas corpus petition in which he claimed that his criminal
convictions for child rape under Massachusetts law were obtained in
violation of the Confrontation Clause. See U.S. Const. amends. VI,
XIV. We affirm the district court judgment.
I
BACKGROUND
The record on appeal reflects that in early 1993
Dolinger's putative fourteen-year-old victim ("Jonathan Doe")1
allegedly had begun having oral and anal intercourse three to four
times a week with an even younger boy. During the summer of 1993,
Dolinger's wife, Robin, complained to Jonathan Doe's mother that
Jonathan had kissed the Dolinger's minor daughter, yet there is no
evidence that Dolinger himself ever learned of the alleged "kissing
incident."
Dolinger and Jonathan Doe met for the first time in the
fall of 1993, when Dolinger hired Doe to assist him with various
maintenance and renovation jobs. Shortly thereafter, as a
"Christmas gift," Dolinger hired a female prostitute to perform
fellatio on Jonathan, who subsequently told Dolinger that he had
not enjoyed the experience because he was "bisexual." During the
1
The pseudonym "Jonathan Doe" is used simply to protect the
identity of the victim.
2
ensuing months, Dolinger and Doe mutually engaged in acts of
fellatio. On one such occasion, Dolinger inquired whether Doe
would allow Dolinger to "poke" him. Upon being asked by Doe what
"poke" meant, Dolinger explained: "That's where I put my penis in
your bum." Although Doe verbally agreed, he soon began to cry,
telling Dolinger to stop because it hurt. Dolinger initially
refused, then relented.
Early in 1994, Dolinger made a remark which caused
Jonathan to cry, though by the time of the March 1996 trial
Jonathan could not recall what Dolinger had said which upset him.
At about the same time, Jonathan's mother reported to her therapist
that Jonathan's behavior had become belligerent and erratic.
Following the ensuing police investigation, eleven counts
of child rape were lodged against Dolinger. See Mass. Gen. Laws
Ann. ch. 265, § 23.2 At trial, the defense contended that Dolinger
had never engaged in any sexual relations with Jonathan.3
Additionally, in an effort to impeach the trial testimony of the
then seventeen-year-old Jonathan — to the effect that he was
sexually naive at the time of the rapes, viz., unfamiliar with such
concepts as "bisexuality," "oral sex," and "anal sex" — Dolinger
2
The Massachusetts child-rape statute makes it a crime
"unlawfully [to] ha[ve] sexual intercourse or unnatural sexual
intercourse, and abuse[] a child under sixteen years of age."
Mass. Gen. Laws Ann. ch. 265, § 23.
3
Dolinger elected not to testify.
3
unsuccessfully sought to adduce evidence regarding Jonathan's
earlier homosexual relationship with the younger boy. Citing the
Massachusetts rape-shield statute, Mass. Gen. Laws Ann. ch. 233, §
21B,4 the trial court ruled that, whatever its relevance, the
proffered evidence was "well overshadowed . . . [by its]
prejudicial effect." Ultimately, the jury convicted Dolinger on
eight of the eleven child-rape charges.
On direct appeal, Dolinger contended that the trial
court's evidentiary ruling infringed his Sixth Amendment right to
cross-examine Doe in order to test the credibility of Doe's
4
The Massachusetts rape-shield statute provides, in pertinent
part:
Evidence of the reputation of a victim's
sexual conduct shall not be admissible in any
investigation or proceeding before a grand
jury or any court of the commonwealth for a
violation of [Mass. Gen. Laws Ann. ch. 265, §
23]. Evidence of specific instances of a
victim's sexual conduct in such an
investigation or proceeding shall not be
admissible except evidence of the victim's
sexual conduct with the defendant or evidence
of recent conduct of the victim alleged to be
the cause of any physical feature,
characteristic, or condition of the victim;
provided, however, that such evidence shall be
admissible only after an in camera hearing on
a written motion for admission of same and an
offer of proof. If, after said hearing, the
court finds that the weight and relevancy of
said evidence is sufficient to outweigh its
prejudicial effect to the victim, the evidence
shall be admitted; otherwise not.
Mass. Gen. Laws Ann. ch. 233, § 21B.
4
testimony to the effect that he had been sexually naive in 1993-94
when the alleged rapes occurred. Dolinger reasons that had the
jury determined that Doe lied regarding his naiveté, it may also
have found that Doe was fabricating the central trial testimony
that he had been raped by Dolinger.
In due course, the Massachusetts Appeals Court affirmed
the Dolinger convictions. See Commonwealth v. Dolinger, No. 97-P-
558 (Mass. App. Ct. Mar. 6, 1998) (unpublished opinion). First, it
rejected Dolinger's contention that the excluded evidence would
have explained how Doe had acquired his sexual knowledge, thereby
affirming the trial court observations that (i) "it strain[ed]
credulity that a fifteen-year old wouldn't know about anal and oral
sex," and (ii) Doe's "consensual" homosexual relationship with the
younger boy bore little similarity to Doe's relationship with
Dolinger. Id. at 2 (citing Commonwealth v. Ruffen, 507 N.E.2d 684,
687-88 (Mass. 1987) ("If the [ten-year-old] victim had been
sexually abused in the past in a manner similar to the abuse in the
instant case, such evidence would be admissible at trial because it
is relevant on the issue of the victim's knowledge about sexual
matters.") (emphasis added)).
Second, the Appeals Court rejected Dolinger's contention
that, even assuming fifteen-year-olds normally would be
knowledgeable regarding the sexual matters at issue, the
prosecution had gone out of its way to portray Doe as a sexual
5
neophyte before the jury. In addition, the Appeals Court noted
that the jury had not been invited to infer that Doe either
possessed "unusual knowledge or [an] unusual lack of knowledge
about sex." Id. at 3.
Moreover, the Appeals Court rejected Dolinger's claim
that the trial court abused its discretion in ruling that the
relevance of the excluded evidence was not outweighed by its
potential prejudice to Doe, particularly since the evidence of
Doe's prior homosexual relationship with the younger boy tended
directly to undermine Doe's overall credibility regarding his
sexual naiveté (e.g., Doe's testimony that he did not understand
what Dolinger had meant by the word "poke"), thereby inviting the
jury to infer that Doe may have fabricated the rape charges against
Dolinger as well. Finally, the Appeals Court ruled that the
prosecution had not attempted to establish that Doe was sexually
naive, but merely that he was "an emotionally and financially needy
child," and, in addition, that Dolinger had been able to present
other impeachment evidence to the jury, viz., Doe's prior
inconsistent statements that (i) Dolinger had raped him every day,
and (ii) Dolinger had raped him only on the eleven occasions
alleged in the indictment. Id. at 4 & n.3.
After the Massachusetts Supreme Judicial Court summarily
rejected the Dolinger application for further appellate review, see
Commonwealth v. Dolinger, 695 N.E.2d 667 (1998), the United States
6
District Court for the District of Massachusetts denied the ensuing
petition for habeas corpus relief, see 28 U.S.C. § 2254, then
issued its certificate of appealability.
II
DISCUSSION
The district court order denying the petition for habeas
corpus is subject to de novo review. See Almanzar v. Maloney, 281
F.3d 300, 303 (1st Cir. 2002). Additionally, Dolinger is entitled
to relief only if we determine that the adverse decisions reached
by the Commonwealth courts were "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).5
5
Dolinger also contends on appeal that the determinations of
fact made by the Commonwealth courts were unreasonable. See 28
U.S.C. § 2254(d)(2) (requiring habeas relief where state court
issues decision "based on an unreasonable determination of the
facts in light of the evidence presented"). But see Mastracchio v.
Vose, 274 F.3d 590, 598 (1st Cir. 2001) (noting that findings of
fact made by state courts are entitled to a presumption of
correctness which can be rebutted only by "clear and convincing"
evidence); 28 U.S.C. § 2254(e). Subsection 2254(d)(2) applies
exclusively to determinations of "'basic, primary, or historical
facts,'" however, Sanna v. Dipaolo, 265 F.3d 1, 7 (1st Cir. 2001)
(citation omitted), not to mixed questions of fact and law, which
are more amenable to analysis under section 2254(d)(1). See Ouber
v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002). Since the issue as to
whether the trial court violated Dolinger's rights under the
Confrontation Clause presents a mixed question of law and fact,
see, e.g., Wilkerson v. Cain, 233 F.3d 886, 890 (5th Cir. 2000), we
need not address the Dolinger contention predicated on subsection
2254(d)(2).
7
"Under the 'contrary to' clause, a federal habeas court
may grant the writ if the state court arrives at a conclusion
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.
Under the 'unreasonable application' clause, a federal habeas court
may grant the writ 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." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
The parties are in agreement that Olden v. Kentucky, 488
U.S. 227 (1988), provides the controlling Supreme Court
confrontation-clause precedent. Olden, an African-American male,
was charged with sodomizing a white female. During trial, the
court rejected an evidentiary proffer by the defense — viz., that
the alleged victim was living with another African-American male at
the time of trial — notwithstanding the victim's inconsistent trial
testimony that she had been living with her mother. Id. at 229-30.
Despite the impeachment value inherent in the defense proffer, the
trial court reasoned that the jury might harbor a racial bias which
could prompt it unfairly to hold the victim's current interracial
relationship against her. Id. at 232.
The Supreme Court reversed the Olden conviction, id. at
233, explaining that "[w]hile a trial court may, of course, impose
8
reasonable limits on defense counsel's inquiry into the potential
bias of a prosecution witness, to take account of such factors as
'harassment, prejudice, confusion of the issues, the witness'
safety, or interrogation that [would be] repetitive or only
marginally relevant,' the limitation here was beyond reason, [and
amounted to] [s]peculation as to the effect of jurors' racial
biases." Id. at 232; see also Delaware v. Van Arsdall, 475 U.S.
673, 679 (1986) ("'[T]he 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.'") (citation omitted). Further, the Supreme
Court concluded that the erroneous evidentiary ruling was not
harmless. Olden, 488 U.S. at 233.
Turning now to the "contrary to" clause in 28 U.S.C. §
2254(d)(1), we cannot conclude that the Appeals Court came to "a
conclusion opposite to that reached by [the United States Supreme]
Court on a question of law or . . . decide[d] [the] case
differently than [the Supreme] Court has on a set of materially
indistinguishable facts." Williams, 529 U.S. at 412-13. For one
thing, although the legal rule announced in Olden delineates a
nonexclusive list of criteria which may inform trial court
evidentiary rulings under the Confrontation Clause (e.g.,
harassment), these criteria are not susceptible to bright-line
definition, but rather require that the trial court apply a case-
9
and-fact-specific balancing test. Furthermore, as our case
summary demonstrates, the facts in Olden are in no sense
"materially indistinguishable" from those in the present case. For
instance, Olden asserted the defense of consent, whereas no such
defense is available under the Massachusetts child-rape statute,
see supra note 2, and unlike the Dolinger proffer, the Olden
proffer was not barred by the state rape-shield law.
As the Appeals Court "identifie[d] the correct governing
legal principle from [the Supreme] Court's decisions," we need only
inquire as to whether it "unreasonably applie[d] that principle to
the facts." Williams, 529 U.S. at 412-13. It is clear that the
Appeals Court appropriately focused its determination on the
components of the Olden analysis most pertinent to the Dolinger
proffer excluded below, by balancing (i) its degree of relevance;
(ii) its potential to cause unfair prejudice to Doe; and (iii) the
extent to which the proffer was repetitive or duplicative of other
available impeachment evidence.
A. Relevance
On appeal, Dolinger contends that the proffer made before
the trial court was relevant to (i) whether Jonathan Doe perjured
himself when he testified that he had been sexually naive in 1993-
94, thus making it more likely that he had fabricated the child
rape accusations as well; (ii) whether Doe wanted revenge against
Dolinger, who in early 1994 angrily had confronted him about the
10
"kissing incident" involving Dolinger's minor daughter; and (iii)
whether Doe was sufficiently sophisticated to understand that
Dolinger would be arrested and prosecuted if Doe were falsely to
accuse Dolinger of child rape.
Like the trial court, the Appeals Court reasonably
recognized that this evidence was relevant to impeach Jonathan Doe
on the issue relating to his sexual naiveté. Dolinger, No. 97-P-
558, at 4 (Mass. App. Ct. Mar. 6, 1998) ("[Doe's] testimony
displays a certain unsureness about oral and anal sex, and . . .
testimony as to [Doe's] prior acts with another might have the
tendency to impeach the witness."). Doe testified that, in
December 1993, when Dolinger asked whether he had enjoyed his
experience with the female prostitute, Doe replied that he had not,
because he thought he was bisexual. Similarly, Doe testified that
he did not understand what Dolinger meant by the term "poke," and
had not understood it until Dolinger defined it for him. See supra
at p. 3.
On the other hand, the Appeals Court reasonably
discounted the relevance of the proffer relating to the "revenge"
theory as propounded by Dolinger. First, although the defense
maintained that Dolinger had confronted Doe in early 1994 about the
"kissing incident," Doe testified that he could not remember the
reason for the confrontation. More importantly, Doe's prior
homosexual relationship with a younger boy at most would tend to
11
show Doe's precocious understanding regarding sexual mechanics,
rather than demonstrate his awareness that an allegation that an
adult had raped a child could be used as a weapon of revenge.
Dolinger, No. 97-P-558, at 5 (Mass. App. Ct. Mar. 6, 1998).
Accordingly, we conclude that the Commonwealth courts
appropriately evaluated the materiality and relevance of the
Dolinger proffer.
B. Prejudice
Next, Dolinger contends that (i) the Massachusetts rape-
shield statute precludes evidence of a victim's predisposition to
sexual promiscuity, unless independently relevant to the victim's
biases, see Commonwealth v. O.C Houston, 722 N.E.2d 942, 945 (Mass.
2000); and (ii) in all events the protections afforded under the
rape-shield statute cannot trump the Confrontation Clause.
The Appeals Court recognized that the analyses required
under Olden and the Massachusetts rape-shield statute are not
incompatible, but rather that each requires a similar balancing of
competing factors. The rape-shield statute establishes a
rebuttable presumption that evidence of a victim's alleged sexual
promiscuity would be prejudicial to the rape victim, see Mass. Gen.
Laws Ann. ch. 233, § 21B ("Evidence of the reputation of a victim's
sexual conduct shall not be admissible . . . provided, however,
that such evidence shall be admissible only after an in camera
hearing [at which] . . . the court finds that the weight and
12
relevancy of said evidence is sufficient to outweigh its
prejudicial effect to the victim."), since it seriously intrudes
upon his privacy and threatens to permit the jury unfairly to
extrapolate, from the victim's prior consensual sexual acts, his
consensual participation in the crime charged. See Houston, 722
N.E.2d at 945; see also Michigan v. Lucas, 500 U.S. 145, 149 (1991)
(holding that rape-shield evidentiary exclusions are not per se
Sixth Amendment violations, because, depending on the facts of the
case, an exclusion may serve legitimate State interests in
protecting victim); Stephens v. Miller, 13 F.3d 998, 1002 (7th Cir.
1994) (observing that rape victims "deserve heightened protection
against . . . unnecessary invasions of privacy"); cf. Fed. R. Evid.
412.
Echoing the rape-shield statute, Olden likewise
contemplates that the trial court should weigh factors such as the
potential for "harassment, prejudice, [and] confusion of the
issues." Olden, 488 U.S. at 232. Thus, it is hardly an
unreasonable application of Olden to conclude, in light of the
potential for substantial jury confusion, that trial courts should
first find compelling reasons before setting aside the presumption
of nonadmissibility, particularly where, as here, the prejudice and
harassing cross-examination proffered is to be inflicted upon a
victim who is a minor. Accord, e.g., Quinn v. Haynes, 234 F.3d 837,
850 (4th Cir. 2000) (observing that state court appropriately
13
considered minor victim's age and emotional susceptibility in
determining whether to admit evidence of prior sexual conduct).
C. Redundancy
Dolinger maintains that no redundancy would have resulted
had the trial court admitted his excluded proffer along with the
other impeachment evidence. He contends that (i) Doe's motive to
frame him, by way of revenge, was not strongly established by the
other evidence admitted in the trial court — i.e., that Dolinger
had confronted Doe in early 1994 regarding the "kissing incident"
— since Doe testified that he could not remember what Dolinger had
said to him during that confrontation, and the jury therefore could
infer no concrete motive for Doe's revenge; and (ii) evidence that
Doe previously had told his counselor that Dolinger raped him every
day, instead of on the eleven occasions charged in the indictment,
merely demonstrated Doe's predisposition to exaggerate facts,
rather than a predisposition to fabricate events (i.e., the rapes)
out of whole cloth. On the other hand, however, given the level of
prejudice threatened by the Dolinger proffer, it was not
unreasonable for the state courts to determine that Dolinger had
been accorded an adequate opportunity to challenge Doe's bias and
truthfulness in other meaningful ways.
First, whether or not the "kissing incident" constituted
the motive for Doe's alleged revenge is largely immaterial. The
jury was presented with evidence that Dolinger had confronted Doe
14
angrily a few days before Doe made the rape accusations, and in
fact had made Doe cry. We think that this evidence, if accepted by
the jury, was itself sufficient to support the defense theory that
Doe had framed Dolinger out of revenge. See, e.g., Stephens, 13
F.3d at 1002 (noting that the defendant adduced evidence that "he
said something to [his victim] that angered her and caused her to
fabricate the attempted rape charge," but trial court properly
excluded further lurid details of the victim's past sexual conduct
"to avoid embarrassing her and subjecting her to possible public
denigration").
Second, as concerns the prior inconsistent statement by
Doe, in the present context we perceive no significant distinction
between Doe's predispositions to exaggerate and to lie, since each
strongly suggests his tendency to speak untruthfully: whether
regarding the occurrence of the rapes or their frequency. Thus, we
conclude that it was not beyond the realm of reason for the
Commonwealth courts to determine that the Dolinger proffer was
largely cumulative.6
6
Of course, Confrontation Clause claims are subject to
"harmless error" analysis as well. See Olden, 488 U.S. at 232:
"The correct inquiry is whether, assuming that
the damaging potential of the
cross-examination [or excluded evidence] were
fully realized, a reviewing court might
nonetheless say that the error was harmless
beyond a reasonable doubt. Whether such error
is harmless in a particular case depends upon
a host of factors, all readily accessible to
15
Under section 2254(d)(1), it is immaterial whether we
would assess the Olden factors as the Commonwealth courts have done
in the instant case had we been directly presented with these
issues in a non-habeas context. Of necessity, a balancing test
normally occasions an exercise of the trial court's informed
discretion. See Domaingue v. MacDonald, 978 F. Supp. 53, 58 (D.
Mass. 1997) (upholding discretionary exclusion of evidence of
incest victim's alleged prior sexual promiscuity, given that trial
court otherwise afforded defendant "a reasonable opportunity to
question the witness' veracity and motivation," and to present "a
reasonably complete picture of the witness's bias") (citing United
States v. LaBoy-Delgado, 84 F.3d 22, 28 (1st Cir. 1996)). Thus, it
is sufficient that we are able to conclude that the Commonwealth
courts "identifie[d] the correct governing legal principle from
[the Supreme] Court's decisions [viz., the Olden factors],"
"appl[ied] that principle to the facts of the . . . case," and
reasonably balanced the competing factors. Williams, 529 U.S. at
412-13.
reviewing courts. These factors include the
importance of the witness' testimony in the
prosecution's case, whether the testimony was
cumulative, the presence or absence of
evidence corroborating or contradicting the
testimony of the witness on material points,
the extent of cross-examination otherwise
permitted, and, of course, the overall
strength of the prosecution's case."
Id. at 232-33 (citation omitted) (emphasis added).
16
AFFIRMED.
17