United States Court of Appeals
For the First Circuit
No. 02-1246
CHARLES FRYAR, JR.,
Petitioner, Appellant,
v.
LYNN BISSONNETTE,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
David Hoose, with whom Katz, Sasson, Hoose & Turnbull and
Harris Freeman were on brief, for the appellant.
Cathryn A. Neaves, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief, for appellee.
February 5, 2003
HOWARD, Circuit Judge. Petitioner-appellant Charles
Fryar, Jr. ("Fryar") appeals from the district court's order
denying his petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. He argues that an evidentiary ruling at his state
court trial was a prejudicial violation of his Sixth and Fourteenth
Amendment rights, invoking Chambers v. Mississippi, 410 U.S. 284,
303 (1973) ("[W]here constitutional rights directly affecting the
ascertainment of guilt are implicated, the hearsay rule may not be
applied mechanistically to defeat the ends of justice."). We
disagree and accordingly affirm.
I. BACKGROUND
As the district court has meticulously set forth the
factual and procedural history of this case in a published opinion,
Fryar v. Bissonette, 185 F. Supp. 2d 87, 89-91 (2002) ("Fryar
III"), only a brief summary is necessary here.
Early on the morning of April 14, 1989, a fight broke out
on the streets of downtown Springfield, Massachusetts, between four
black high school students and a group of white college students.
During the brawl, one of the college students, Eric Palmer, was
stabbed to death. Fryar was arrested, and while in police custody
ultimately confessed to the stabbing. Fryar has since repudiated
this confession, and maintains that another of the youths, Thomas
Barklow ("Barklow"), was in fact responsible.
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Fryar was indicted on May 10, 1989, and on April 3, 1990,
was convicted of first-degree murder and two counts of assault and
battery. On appeal, the conviction resulting from this trial was
overturned by the Supreme Judicial Court of Massachusetts ("SJC")
on April 7, 1993, due to racial discrimination in the selection of
the petit jury. Commonwealth v. Fryar, 414 Mass. 732, 733 (1993)
("Fryar I"). The second trial, which is the subject of Fryar's
petition, began on January 13, 1994.
At the second trial, Fryar presented evidence consistent
with his claims of innocence - specifically, that Barklow was the
real killer and had confessed to the crime under reliable
circumstances. Fryar sought to include mention of Barklow's
confession in his opening statement, arguing an entitlement to do
so under Chambers. The trial court denied this request, basing its
ruling exclusively on state evidentiary law principles and without
reference to Fryar's Chambers argument. Barklow was ultimately
called as a witness for the prosecution, at which point Fryar was
able to subject him to vigorous cross-examination regarding the
confession and his involvement in the crime. At all times during
the trial, Barklow denied having committed or confessed to the
murder.
Immediately following Barklow's testimony and the
conclusion of the prosecution's case-in-chief, Fryar called Jason
Franklin ("Franklin") to the stand. Franklin testified that
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Barklow had, in fact, confessed to the murder in his presence five
months earlier, while Barklow was living with Franklin's family.
Franklin testified that Barklow had provided details about the
murder, and had stated that it "was real quick and easy." Franklin
also testified that Barklow was proficient with a butterfly knife,
the kind of knife used in the stabbing.
Fryar moved to have Barklow's out-of-court statements to
Franklin admitted as substantive evidence to show that Barklow, not
Fryar, had stabbed Palmer. The trial judge demurred and instructed
the jury at the end of Franklin's direct testimony that the
testimony could be used for impeachment purposes only. On January
25, 1994, Fryar was convicted of second-degree murder.
Fryar appealed, arguing that the trial court's refusal to
allow mention of Barklow's confession in his opening statement and
refusal to permit the use of Franklin's testimony as substantive
evidence of his innocence violated Chambers. The SJC rejected his
argument, without explicitly discussing the Chambers issue.
Commonwealth v. Fryar, 425 Mass. 237, 249-50 (1997) ("Fryar II").
Fryar's petition for a writ of certiorari to the United States
Supreme Court was denied on December 5, 1997. Fryar v.
Massachusetts, 522 U.S. 284 (1997).
On November 9, 1998, Fryar renewed his Chambers argument
in a petition for a writ of habeas corpus under 28 U.S.C. § 2254.
The district court reviewed Fryar's habeas claim de novo because
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the SJC did not address Fryar's federal claims, even though Fryar
had properly presented them. Fryar III, 185 F. Supp. 2d at 90-91
("A court can hardly defer to the state court on an issue that the
state court did not address."). This was required by circuit
precedent. See Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001).
As summarized by the district court, Fryar claimed that
"Chambers stands for the proposition that under the Sixth
Amendment, a reliable exculpatory out-of-court confession must be
admitted substantively, regardless of whether declarant is
available." Fryar III, 185 F. Supp. 2d at 91. The court
concluded, however, that Chambers was not controlling. Id. at 92.
Chambers addressed the right to cross-examination and the right to
present witnesses, the district court reasoned, while the instant
case concerned a potential violation of the "more amorphous 'right
to present a meaningful defense'." Id. The right to present a
defense is subject to reasonable restrictions, and "evidentiary
exclusions will not violate the constitution so long as they are
not arbitrary or disproportionate to the purposes they are designed
to serve." Id. (citing DiBenedetto v. Hall, 272 F.3d 1, 8 (1st
Cir. 2001)). The district court found the state trial judge's
handling of the evidentiary issues raised by Fryar to be "neither
'arbitrary' nor 'disproportionate'." Id.
The district court also noted that, even if the trial
judge's evidentiary ruling had been incorrect, any error was, in
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all likelihood, harmless. "It is almost impossible to imagine that
any jury could (a) find petitioner guilty of the murder beyond a
reasonable doubt, and (b) simultaneously believe that Barklow lied
when he denied confessing to the same murder." Id. at 94, n.5
(analyzing whether the assumed error had a substantial and
injurious effect on the jury's verdict) (citing Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993)). We granted a certificate of
appealability on the Chambers issue and now affirm.
II. ANALYSIS
As before, Fryar contends that the Constitution required
Barklow's out-of-court confession to be admitted as substantive
evidence. In Fryar's view, the district court erred in concluding
that his constitutional rights were sufficiently safeguarded by the
admission of Franklin's testimony for impeachment purposes and his
ability to cross-examine Barklow. Fryar concludes instead that the
trial court's rulings skewed the jury's perception of the case from
the beginning (as Fryar was not allowed to mention Barklow's
confession in his opening statement), and effectively precluded the
jury from using the confession in deliberation to corroborate
other, substantive, evidence tending to show Fryar's innocence.
While we believe Fryar's constitutional claim deserved more serious
consideration from the state courts, we disagree with Fryar's
conclusions.
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We assume arguendo that the state trial court's ruling
undermined Fryar's federal constitutional right, as he has argued.
Nevertheless, the assumed error was harmless. As the district
court observed, a federal habeas court is bound to uphold a state
court judgment, notwithstanding trial-type federal constitutional
error, so long as that error did not have a "substantial and
injurious effect or influence in determining the jury's verdict."
Brecht, 507 U.S. at 637 (citations omitted). If there was any
constitutional error at all in this case, it was trial error. See
California v. Roy, 519 U.S. 2, 5 (1996) (emphasizing that the
Brecht standard applies to trial-type, not structural, error).
While we are loath to understate the importance of the
impeachment/substantive distinction, we are convinced that the
distinction would not have made a difference in the outcome of this
case. Eyewitnesses testified that Fryar attacked the victim with
a stick, a fact to which Fryar also testified. A witness testified
that he saw Fryar "punch" the victim, and that immediately after
the punch, the victim started bleeding. The knife that was used to
kill the victim was found, lying open, a short distance from where
Fryar was arrested and taken into custody. Finally, in his second
statement to police, Fryar confessed to the stabbing.
We agree with the district court that the jury almost
certainly did not find Fryar guilty of murder beyond a reasonable
doubt while simultaneously believing that Barklow had lied on the
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witness stand when he denied confessing to the murder. See Fryar
III, 185 F. Supp. 2d at 94 n.5. Both Barklow and Franklin were
fully examined and cross-examined in front of the jury. If the
jury believed that Barklow's testimony had been successfully
impeached, and that Barklow had confessed to Franklin, this could
easily have been the basis for a finding of reasonable doubt. We
can perceive nothing in the state court's rulings that would have
interfered with such a result. Any error was therefore harmless.
Affirmed.
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