United States Court of Appeals
For the First Circuit
No. 06-2595
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL PRIDGEN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Senior Circuit Judge,
and Gelpí,* District Judge.
Christopher R. Goddu, Assistant Federal Public Defender, with
whom Page Kelley, Assistant Federal Public Defender, and Federal
Defender Office were on brief, for appellant.
James F. Lang, Assistant United States Attorney, with whom
Donald L. Cabell, Assistant United States Attorney, and Michael J.
Sullivan, United States Attorney, were on brief, for appellee.
February 29, 2008
*
Of the District of Puerto Rico, sitting by designation.
GELPÍ, District Judge. Michael Pridgen appeals his
conviction in the district court for being a felon in possession of
a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).
He argues that the trial judge committed reversible error upon
refusing to allow him to introduce extrinsic evidence of a
government witness’s prior inconsistent statements. For the
reasons discussed below, we conclude that the trial court erred,
but that the error was harmless.
I. Factual Overview
We summarize here the relevant facts evidenced in the
trial record.
On the morning of October 29, 2004, someone fired shots
outside of the Roxbury District Courthouse in Dudley Square,
Roxbury, Massachusetts. On the day of the shooting, Maria Sousa,
a probation officer in the courthouse, was meeting with a client in
her office. Shortly before 11:00 a.m., she heard a gunshot outside
her window. Sousa looked out her window and saw several people
including two men standing together. They stood approximately
twenty to twenty-five feet away from her office window. She had a
clear view of the men and observed one of the them holding a silver
revolver in his right hand. The man holding the revolver was
approximately five feet eight inches in height, weighed
approximately 140 to 150 pounds, had cornrow braids in his hair and
a medium complexion, and wore a black sweatshirt, jeans, and
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sneakers. The other man was two or three inches taller and of
medium build and complexion. He wore jeans, sneakers, and a light
gray sweatshirt.
Sousa saw the man holding the revolver fire it in the
direction of the front of the courthouse. She then saw him run
towards Warren Place. She saw the other man run but could not see
in which direction.
Martha Holley, a construction landscaper, was working
across the street from the courthouse at the corner of Warren Place
and Warren Street when the shooting occurred. Holley heard two to
four loud bangs that sounded like gunshots come from the direction
of the courthouse. She looked towards the courthouse and saw
people running in all directions. She observed one man looking
back at the commotion while crossing the street near her. The
young man was dressed in a dark sweatshirt, light blue jeans, and
sneakers. He wore cornrow braids in his hair, had light skin, and
appeared to be “twenty-ish.” Holley watched him run, with his
hands in his sweatshirt pouch, down Warren Place and then up a
driveway at 8 Warren Place.
At around the same time, Scott Alden was working on the
roof of the Urban League Building near the same intersection where
Holley saw the man. Alden also heard gunshots. When he heard the
shots, he looked in the direction of the courthouse and saw an
African-American male wearing jeans and a dark-colored hooded
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sweatshirt run past. The man held a silver firearm in his right
hand. Alden lost sight of the man when he ran under the overhang
of the building on which he was working.
Boston Police Department (“BPD”) Officers Michael Ross
and Juan Seoane were in the courthouse the day of the shooting.
Both officers exited the courthouse when they heard two shots.
Outside the building, the officers observed twenty to thirty people
running or laying on the ground.
Holley and Alden pointed the officers in the direction of
Warren Place. Holley directed the officers to the first house on
the street, 8 Warren Place, saying, “He just went behind the new
construction house, right there.” Three other individuals, a tow
truck driver, a taxi driver, and a criminal defense attorney, also
directed the officers toward Warren Place. When Officer Seoane
arrived at Warren Place, construction workers on a nearby roof
indicated to him that a man had run behind the new construction
site at 8 Warren Place. Officer Seoane arrived at 8 Warren Place
approximately thirty seconds to one minute after he exited the
courthouse; Officer Ross arrived approximately twenty to thirty
seconds after he exited the courthouse.
An approximately six-foot-high chain link fence with an
opening surrounded the front of the house at 8 Warren Place.
Officer Ross, who arrived first at the house, entered through the
opening. He then noticed that the front door to the house was ajar
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and a gate to the backyard was open. He peered around an opening
in the fence and saw Pridgen walking toward him up the driveway
from the rear of the house. Officer Ross observed that Pridgen had
cornrow braids in his hair and was wearing jeans and sneakers. He
also observed that Pridgen was wearing a white tee-shirt, which
struck him as odd given that it was a cold October day. Pridgen
raised one hand and backed up a few steps when he saw Officer Ross.
Officers Ross and Seoane then detained Pridgen.
After detaining Pridgen, the officers searched the
immediate area. The search revealed no evidence of another person
in the vicinity. Officer Ross then went down the driveway to the
backyard where he noticed a set of footprints leading to and from
an approximately three-foot-high fence at the rear of the yard. He
compared the footprints to the soles of Pridgen’s sneakers; they
appeared to be consistent. Officer Ross then looked over the fence
and saw a rolled-up black sweatshirt about five to ten feet away
from the fence. There was no debris on top of the sweatshirt. BPD
Detective Greg Gallagher recovered the sweatshirt. He discovered
wrapped inside of it a silver Smith & Wesson .357 caliber revolver.
The firearm contained four live rounds and two spent shells,
indicating that the firearm had been fired twice. Detective
Gallagher found only partial prints, insufficient to make an
identification, on the firearm and one round of ammunition.
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On December 15, 2004, a federal grand jury in the
District of Massachusetts returned an indictment charging Pridgen
with being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. § 922(g)(1). Trial commenced on July 24,
2006. The government called Sousa as its first witness. During
her direct examination, Sousa provided details regarding the two
men she saw outside her window on October 29th. She testified that
the shooter was approximately five feet eight inches in height,
weighed approximately 140 to 150 pounds, had cornrow braids in his
hair and a medium complexion, and wore a black sweatshirt, jeans,
and sneakers. She also testified that the man next to the shooter
was two or three inches taller, had a medium build and complexion,
and wore jeans, sneakers, and a light gray sweatshirt.
On cross examination, Pridgen’s counsel questioned Sousa
about allegedly conflicting descriptions she had previously given.
Counsel asked Sousa about two meetings with defense investigator
Alicia Hutton during which she allegedly stated that the shooter
was taller and wore a gray sweatshirt. Sousa responded that she
did not recall making the statements.
During re-direct, Sousa testified that she made notes of
the October 29th events two days after the events occurred. She
explained why she made the notes. She stated that she “wanted to
write something so that [she] could look back when the case came to
court.” Familiar with the courts, she knew that cases sometimes
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take years to get to court. Sousa testified that she did not
review the notes before either meeting with Hutton but reviewed
them before trial.
Defense counsel later tried to impeach Sousa via
extrinsic evidence of prior inconsistent statements.1 Pridgen
called Hutton to testify that Sousa had previously told her that
the shooter was the taller man wearing a gray sweatshirt. The
district court, however, excluded the evidence, stating “That’s not
how you get a prior inconsistent statement into evidence” and “it
doesn’t fit within the rules.”
During her opening statement, defense counsel told the
jury and the court about inconsistencies they would hear in Sousa’s
statements. The judge, however, excluded the evidence defense
counsel planned to introduce to demonstrate the inconsistencies.
Notwithstanding the exclusion, defense counsel, in her closing
argument, suggested to the jury that Sousa had made inconsistent
statements and perhaps had fabricated her trial testimony.
1
Pridgen sought to admit the hearsay evidence under Rule
613(b) of the Federal Rules of Evidence, which permits admission of
extrinsic evidence of a prior inconsistent statement to impeach a
witness’s credibility. Sousa’s prior inconsistent statements would
not have been admissible as substantive evidence. Compare United
States v. Winchenbach, 197 F.3d 548, 558 (1st Cir. 1999) (noting
Rule 613(b) evidence admissible to call into question declarant’s
credibility, not to demonstrate truth of either statement), with
Fed. R. Evid. 801(d)(1) (delineating circumstances in which
witness’s prior statement constitutes nonhearsay admissible for
substantive purposes).
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At trial, Pridgen presented an innocent bystander
defense. He argued that he was innocently walking down the
driveway of 8 Warren Place when Officers Ross and Seoane came upon
him. He also argued that the shooter escaped police by using an
alternate exit from the backyard at 8 Warren Place. The jury
rejected his defense and returned a guilty verdict on July 26,
2006. The judge sentenced him to eighty-four months, below the
guidelines range.
The instant appeal followed. Pridgen’s sole claim before
us is that the exclusion of extrinsic evidence regarding Sousa’s
alleged prior inconsistent statements violated his Sixth Amendment
confrontation rights and constitutes reversible error.
II. Analysis
Pridgen contends that Rule 613(b) of the Federal Rules of
Evidence permitted the admission, for impeachment purposes, of
extrinsic evidence of Sousa’s alleged prior inconsistent
statements. He further argues that the district court violated his
Sixth Amendment confrontation rights in excluding the impeachment
evidence and that the error was not harmless beyond a reasonable
doubt. The government concedes that the impeachment evidence was
admissible but notes that, upon the district court’s exclusionary
ruling, Pridgen failed to identify which evidentiary rule called
for admission of the evidence. Pridgen’s failure, the government
argues, precludes this court from finding that the district court
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abused its discretion in excluding the evidence. Alternatively,
the government contends that the challenged exclusion was harmless.
We agree with Pridgen that Hutton’s testimony was
admissible to impeach Sousa. It is not clear from the record why
the district court excluded Hutton’s impeachment testimony. Rule
613(b) permits admission of extrinsic evidence of a witness’s prior
inconsistent statement in limited circumstances; extrinsic evidence
is only admissible when a foundation has been laid for its
admission. This required foundation includes giving the witness
an opportunity to explain or deny the out of court statement. Fed.
R. Evid. 613(b); see also United States v. Hudson, 970 F.2d 948,
955 (1st Cir. 1992) (discussing Rule 613(b) foundation
requirements). A review of the record reveals that Pridgen laid a
proper foundation, which included giving Sousa the opportunity to
explain or deny her statements, for admission of the extrinsic
evidence. We therefore conclude that the district court erred in
not allowing Sousa to be impeached. We now must determine if the
error was harmless.
The parties dispute whether the court should apply the
constitutional or non-constitutional formulation of the harmless
error test. The government advocates for the non-constitutional,
or evidentiary, harmless error test. Under the non-constitutional
harmless error test, a conviction must be upheld if it is highly
probable that the error did not affect the verdict. United States
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v. Roberson, 459 F.3d 39, 49 (1st Cir. 2006), cert. denied, 127 S.
Ct. 1261 (2007). Conversely, Pridgen urges the court to apply the
constitutional formulation of the harmless error test. The
constitutional test requires the government to demonstrate that the
error was harmless beyond a reasonable doubt by showing that the
defendant would have been convicted in the absence of the error.
Hudson, 970 F.2d at 953.
Today, we need not decide which harmless error test
applies. Under either the constitutional or non-constitutional
standard, the exclusion of the impeachment evidence was harmless.2
Pridgen would have been convicted, in light of the compelling
evidence of guilt the government offered, even if the district
court had admitted Hutton’s impeachment testimony.
The government presented an exceedingly strong case of
guilt based on eyewitness testimony and circumstantial evidence
regardless of Sousa’s testimony regarding who fired the shots.
Sousa was not the only eyewitness who offered testimony of the
event and a physical description of the man who ran toward Warren
Place following the shooting. Holley and Alden also offered
detailed and largely consistent descriptions of the scene and the
2
We note that Pridgen failed to raise his constitutional
argument during trial and could be held to have lost this claim.
See United States v. Vigneau, 187 F.3d 82, 86 (1st Cir. 1999); see
also United States v. Lombard, 72 F.3d 170, 187 (1st Cir. 1995)
(noting harmless beyond a reasonable doubt standard applies to
properly preserved constitutional error).
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suspect.3 Holley testified that, immediately after the shooting,
she saw a man wearing cornrow braids in his hair and dressed in a
dark sweatshirt, blue jeans, and sneakers run down Warren Place and
up the driveway at 8 Warren Place. Alden, who had a different
vantage point than Holley, testified that he observed an African-
American male dressed in a dark hooded sweatshirt and jeans. Alden
testified that the man had a silver revolver in his right hand.
Pridgen’s physical appearance just moments after the shooting
matched the witness’s description, absent the sweatshirt. The
sweatshirt police recovered matched the description of the one worn
by the runner. The firearm wrapped in the sweatshirt matched the
description of the firearm Alden observed in the runner’s hand.
Pridgen offered no plausible reason to doubt either Alden’s or
Holley’s testimony. Cf. United States v. de Jesus-Rios, 990 F.2d
672, 679 n.10 (1st Cir. 1993) (noting jury had reason to doubt
credibility of only witness who provided admissible testimony
linking defendant to crime).
The government also offered strong circumstantial
evidence of Pridgen’s guilt. The evidence presented at trial
demonstrated that five people, including Holley and Alden,
indicated to police that a man had run from the courthouse toward
Warren Place immediately after the shooting. Moments after the
3
Holley and Alden’s descriptions of the runner generally
comport with Sousa’s trial testimony regarding the shooter who ran
toward Warren Place.
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shooting, police discovered Pridgen in close proximity to the
silver firearm found at 8 Warren Place. Despite the day’s cold
weather, Pridgen was wearing only a tee-shirt, jeans, and sneakers.
Police found no other individual in the immediate vicinity of where
they found the bundled black sweatshirt and the firearm. Officer
Ross observed a set of footprints, which appeared to match
Pridgen’s footwear, leading to and from the fence behind which
where they found the firearm. Given the wealth of circumstantial
evidence and eyewitness testimony linking Pridgen to the crime, we
conclude that Pridgen would have been convicted in the absence of
the district court’s erroneous exclusion of the impeachment
evidence. The district court’s error, therefore, was harmess.
Pridgen’s argument that the district court committed
reversible error relies heavily upon de Jesus-Rios. This case,
however, is readily distinguishable from de Jesus-Rios. In de
Jesus-Rios, the court, calling it a “close call,” held that the
district court’s erroneous admission of a pretrial identification
constituted reversible error where the government presented little
remaining evidence to link the defendant to the crime, and where
the court had no way to determine the role the identification
played in the jury’s verdict. De Jesus-Rios, 990 F.2d at 678-79.
The court also noted that the record revealed a basis for genuine
concern regarding the only remaining witness’s credibility on a key
question. Id. at 679 n.10. In this case, the government’s
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circumstantial evidence and eye witness testimony was extremely
more compelling than the admissible evidence the government
presented in de Jesus-Rios. Cf. id. at 679 (acknowledging only
admissible evidence linking defendant to crime consisted of one
witness’s identification testimony). Additionally, unlike in de
Jesus-Rios, Pridgen offered no viable challenge to the remaining
witness’s, particularly Alden’s and Holley’s, credibility. Cf. id.
at 679 n.10 (highlighting remaining witness’s lack of credibility
on central issue). These distinctions limit the applicability of
de Jesus-Rios to this case.
Pridgen offers one final argument to demonstrate the
purported harmfulness of the district court's error. He draws our
attention to his trial counsel's promise, made to the jury during
her opening statement, to present Hutton's testimony to challenge
Sousa's credibility. In light of this promise, Pridgen argues, the
erroneous exclusion was so prejudicial that it could not constitute
harmless error. See Anderson v. Butler, 858 F.2d 16, 17 (1st Cir.
1988) ("[L]ittle is more damaging than to fail to produce important
evidence that had been promised in an opening."). The overwhelming
evidence of Pridgen's guilt, however, limited the importance of
Hutton’s testimony and rebuts Pridgen's argument. The result would
have been the same even if the court had admitted the impeachment
evidence. Additionally, we note that Pridgen's counsel presented
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her closing argument as if the district court had admitted the
impeachment evidence.
In sum, any error by the district court was harmless,
given the government’s strong evidence of Pridgen’s guilt.
III. Conclusion
For the reasons explained above, we affirm Pridgen’s
conviction.
Affirmed.
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