RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0136p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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LEWIS RODNEY GAGNE,
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Petitioner-Appellee,
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No. 07-1970
v.
,
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Respondent-Appellant. -
RAYMOND BOOKER, Warden,
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Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 04-60283—Marianne O. Battani, District Judge.
Argued: March 2, 2011
Decided and Filed: May 16, 2012
Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, NORRIS, MOORE,
COLE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN,
KETHLEDGE, WHITE, and STRANCH, Circuit Judges.
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COUNSEL
ARGUED: Laura Moody, MICHIGAN ATTORNEY GENERAL’S OFFICE, Lansing,
Michigan, for Appellant. Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE,
Grand Rapids, Michigan, for Appellee. ON BRIEF: Laura Moody, B. Eric Restuccia,
MICHIGAN ATTORNEY GENERAL’S OFFICE, Lansing, Michigan, for Appellant.
Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, Michigan,
for Appellee. Benjamin C. Mizer, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, Margaret Garvin, NATIONAL CRIME VICTIM LAW INSTITUTE
AT LEWIS & CLARK LAW SCHOOL, Portland, Oregon, Mellissa Fuhrmann,
JUSTICE LEAGUE OF OHIO, Powell, Ohio, for Amici Curiae.
BATCHELDER, C. J., announced the judgment of the court and delivered an
opinion, in which BOGGS, GIBBONS, SUTTON, COOK, McKEAGUE, and GRIFFIN,
JJ., joined. SUTTON (p. 34), and GRIFFIN (pp. 35–38), JJ., delivered separate
concurring opinions. MOORE, J. (pp. 39–44), in which COLE, J., joined, CLAY, J. (pp.
45–49), and WHITE, J. (p. 50), delivered separate opinions concurring in the judgment
only. MARTIN, J. (p. 51), delivered a separate dissenting opinion. KETHLEDGE, J.
1
No. 07-1970 Gagne v. Booker Page 2
(pp. 52–70), also delivered a separate dissenting opinion, in which MARTIN, NORRIS,
ROGERS, and STRANCH, JJ., joined.
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OPINION
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ALICE M. BATCHELDER, Chief Judge. The respondent, Warden Raymond
Booker, represented by the State of Michigan’s Attorney General and Solicitor General
(hereinafter “the State”), appealed the district court’s grant of habeas corpus to
petitioner-appellee Lewis Gagne. See Gagne v. Booker, No. 04-60283, 2007 WL
1975035, 2007 U.S. Dist. LEXIS 47616 (E.D. Mich. July 2, 2007). A three-judge panel
affirmed. Gagne v. Booker, 596 F.3d 335 (6th Cir. Feb. 23, 2010), opinion amended and
superseded by 606 F.3d 278 (6th Cir. May 25, 2010). The State sought en banc
rehearing, which we granted; we correspondingly vacated the panel opinion. Gagne v.
Booker, No. 07-1970, 2010 U.S. App. LEXIS 15052 (6th Cir. July 20, 2010). We now
REVERSE.
I.
In July 2000, Lewis Gagne and his friend Donald Swathwood (also his co-
defendant) had decided to move to California. Gagne was unemployed and his turbulent
six-month relationship with his former-girlfriend, P.C., had ended approximately three
weeks earlier. On the evening of July 3, 2000, Gagne, Swathwood, and another friend,
David Stout, were out for a good time.
When their car ran out of gas, they walked to P.C.’s house and found her there.
P.C., who had been drinking for most of the day, agreed to get cash from the ATM to
buy gas, beer, and crack cocaine. Upon their return, and after smoking, drinking, and
showering, P.C. began to have sex with Gagne, whereupon Swathwood joined in. P.C.
engaged in fellatio, vaginal intercourse, and anal intercourse with both men. She also
engaged in fellatio with Stout, albeit briefly, and during the course of this “escapade,”
had multiple vibrators and a wine bottle inserted into her vagina and rectum. At
No. 07-1970 Gagne v. Booker Page 3
approximately 5:00 a.m. the next morning, the three men took P.C.’s ATM card,
withdrew $300, bought crack cocaine, and smoked it all themselves.
Later that afternoon, P.C. called the police and accused Gagne and Swathwood
of rape. She claimed that, while she had originally begun a consensual sexual encounter
with Gagne, she had protested Swathwood’s uninvited participation and, rather than
relenting when she objected, Swathwood and Gagne had held her down, forcibly raped
and sodomized her, mocked her and laughed at her, and tried to force her to perform
fellatio on Stout, who was drunk, stoned, and virtually incoherent. Gagne and
Swathwood replied that the whole episode was consensual; that P.C. had initiated and
directed the “wild orgy” and had given them the ATM card with orders to return with
more crack. They claimed that P.C. was the classic “woman scorned,” frustrated that
Gagne was leaving for California and angry that the men had smoked the crack without
her.
The State charged Gagne and Swathwood with three counts each of first-degree
criminal sexual misconduct in violation of Michigan law, M.C.L. § 750.520b(1)(f)
(sexual penetration through use of force, causing injury to the victim). Both defendants
entered not-guilty pleas, and the case was set for a jury trial in a Michigan state court.
Stout was to be a witness, but not a defendant.
At the conclusion of a seven-day trial, the jury convicted Swathwood on all
counts and Gagne on two (the jury acquitted Gagne of one count of forced fellatio). The
court sentenced Swathwood to a prison term of 15 to 30 years, and Gagne to a term of
22½ to 45 years.
II.
The present appeal stems from a pre-trial ruling by a Michigan trial court on the
admissibility of two particular pieces of evidence proffered by the two criminal
defendants: an allegation that the alleged victim, P.C., and defendant Gagne had, on a
certain prior occasion, engaged in group sex with another individual, one Ruben
Bermudez; and a separate allegation that P.C. had, on a certain prior occasion, offered
No. 07-1970 Gagne v. Booker Page 4
to engage in group sex with Gagne and his father. The defendants moved to admit this
evidence pursuant to the Michigan Rape Shield Law, M.C.L. § 750.520j, but the trial
court denied the motion and excluded the evidence (and any argument regarding it).
After conviction, the defendants appealed this decision to the Michigan Court of
Appeals, arguing that the trial court’s exclusion of the evidence violated the Michigan
Rape Shield Law in a manner that also violated their Sixth Amendment rights to a fair
trial, to confront their accuser, and to present a complete defense. The Michigan Court
of Appeals rejected this claim and affirmed the convictions. See Michigan v.
Swathwood, Nos. 235540 & 235541, 2003 WL 1880143, 2003 Mich. App. LEXIS 922
(Mich. Ct. App. Apr. 15, 2003).1 Gagne sought leave to appeal to the Michigan
Supreme Court, but was denied. Michigan v. Gagne, 673 N.W.2d 755 (Mich. 2003).2
After exhausting his state-court appeals, Gagne petitioned for habeas corpus
relief in federal district court, claiming — among other things3 — that the Michigan
state courts had violated his Sixth Amendment rights to a fair trial by excluding the
testimonial evidence about the group sex with Bermudez and the offer of group sex with
his father. The district court granted the petition, see Gagne, 2007 WL 1975035, 2007
U.S. Dist. LEXIS 47616, and the State appealed.
Because Gagne’s argument on this issue has “evolved” over the course of the
proceedings, it is worthwhile to track this claim from the beginning and review the
arguments, counter-arguments, and decisions at each of the three prior stages: trial, state
appellate, and federal habeas.
1
The appellate court also rejected claims of improper exclusion of other evidence, prosecutorial
misconduct, ineffective assistance of counsel, insufficiency and weight of the evidence, cumulative error,
and error in sentencing.
2
Three Justices of the Michigan Supreme Court dissented from the denial. Justices Cavanagh and
Kelly would have reversed and remanded for a new trial, while Justice Markman would have granted leave
to appeal. None of the three wrote separately to explain the basis for his or her dissent. See Gagne, 673
N.W.2d at 755.
3
Gagne also claimed improper exclusion of evidence, prosecutorial misconduct, and ineffective
assistance of counsel. The district court denied relief on those claims. See Gagne, 2007 WL 1975035,
2007 U.S. Dist. LEXIS 47616. Gagne did not file any cross-appeal in this court to challenge the district
court’s denial of those claims.
No. 07-1970 Gagne v. Booker Page 5
A.
Michigan’s Rape Shield Law, which lies at the origin of Gagne’s constitutional
claim, is a rule of evidence particular to criminal sexual-misconduct cases and provides
that:
(1) Evidence of specific instances of the victim’s sexual conduct,
opinion evidence of the victim’s sexual conduct, and reputation
evidence of the victim’s sexual conduct shall not be admitted under
sections 520b to 520g [FN1] unless and only to the extent that the
judge finds that the following proposed evidence is material to a
fact at issue in the case and that its inflammatory or prejudicial
nature does not outweigh its probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the
source or origin of semen, pregnancy, or disease.
(2) If the defendant proposes to offer evidence described in subsection
(1)(a) or (b), the defendant within 10 days after the arraignment on
the information shall file a written motion and offer of proof. The
court may order an in camera hearing to determine whether the
proposed evidence is admissible under subsection (1). If new
information is discovered during the course of the trial that may
make the evidence described in subsection (1)(a) or (b) admissible,
the judge may order an in camera hearing to determine whether the
proposed evidence is admissible under subsection (1).
[FN1] M.C.L.A. §§ 750.520b to 750.520g.
M.C.L. § 750.520j.
Prior to trial, Gagne identified certain items or instances concerning P.C.’s sexual
history that he deemed relevant to his defense and filed a “Motion and Offer of Proof,”
pursuant to § 750.520j(2), seeking to admit them as “proof of the victim [P.C.]’s past
sexual conduct with him for the purpose of establishing consent.” Five of those items4
were argued together:
4
Gagne actually listed six items together in the motion, but voluntarily withdrew this one almost
immediately: “e. Defendant [Gagne] proposes to offer evidence that the alleged victim [P.C.] always gets
‘horny’ when she smokes crack cocaine as the evidence will reveal occurred on the date of the alleged
offense.”
No. 07-1970 Gagne v. Booker Page 6
1. An allegation that P.C., Gagne, and Swathwood had, on a certain
prior occasion in June 2000, engaged in group sex, which also
included two other women they had met at a bar (i.e., “the Tony’s
Lounge Incident”);
2. An allegation that P.C. and Gagne had, on a certain prior
occasion in June 2000, engaged in group sex with another
individual, one Ruben Bermudez;
3. An allegation that P.C. and Gagne, during their relationship, had
commonly used “sex toys”, including vibrators, a wine bottle,
and others;
4. An allegation that it was P.C. who had invited Stout (who was
not charged as a defendant) to participate in the group sex on the
night in question; and
5. An allegation that P.C. had, on a certain prior occasion, offered
to engage in group sex with Gagne and his father, Rodney Gagne.
Gagne asserted that these “factual scenarios[,] constituting [his] offer of proof[,] [we]re
probative of the issue of the alleged victim [P.C.]’s consent to have sexual relations with
multiple partners simultaneously[,] and that the use of objects in connection with sexual
activities is not necessarily inconsistent with the existence of consent on the part of the
alleged victim [P.C.].”5
The State opposed the motion and the trial court ordered a hearing pursuant to
§ 750.520j(2) — though not in camera — “to determine whether the proposed evidence
[wa]s admissible under [§ 750.520j] subsection (1).” See § 750.520j(2). At the hearing,
the State conceded that the first item (the Tony’s Lounge Incident) fell within the
subsection (1) exception because that past sexual conduct (i.e., that specific incident)
involved the victim and these same two defendants, but argued for exclusion because its
inflammatory or prejudicial nature outweighed its probative value. The State argued for
exclusion of the third item (the sex toys) on the basis that the statute did not allow for
such evidence, which the State characterized as “purely inflammatory.”
5
Gagne did not raise any constitutional argument in his “Motion and Offer of Proof,” but that is
hardly surprising inasmuch as that particular motion is a specific aspect of the Michigan Rape Shield Law,
see § 750.520j(2).
No. 07-1970 Gagne v. Booker Page 7
The State addressed the second and fifth items (i.e., the group sex with Bermudez
and the offer of group sex with Gagne’s father) together, and argued against their
admission:
[T]his evidence, Judge, is I believe totally prohibited by the statute. It is
irrelevant. It is inflammatory. And basically what [the defendants are]
doing is . . . taking what is prohibited under many rules of evidence that
we have, taking character evidence from which to infer conduct. In other
words, [the defendants are] saying and alleging that these [two particular]
prior invitations or activities . . . of the victim’s willingness, if you will,
to participate in sexual acts with multiple individuals therefore
predisposes her to have consented [to] sexual activities with both of these
defendants [Gagne and Swathwood]. That is prohibited by 404(A), the
first sentence, 404(B), the first sentence, of the Michigan Rules of
Evidence[6] as well as the rape shield statute. It has nothing to do with
sexual activity with these two gentlemen.
In discussing these items, the trial court expressed its concern that, “I just don’t
have any case law on a situation where somebody other than the victim and the actor,
being the defendant, participated in sexual activities,” to which Gagne’s counsel
responded:
6
The Rule cited here, Michigan Rule of Evidence 404: “Character Evidence Not Admissible to
Prove Conduct; Exceptions; Other Crimes,” states, in pertinent part:
(a) Character evidence generally. Evidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular occasion,
except:
...
(3) Character of victim of sexual conduct crime. In a prosecution for criminal sexual
conduct, evidence of the alleged victim’s past sexual conduct with the defendant and
evidence of specific instances of sexual activity showing the source or origin of semen,
pregnancy, or disease;
...
(b) Other crimes, wrongs, or acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or
system in doing an act, knowledge, identity, or absence of mistake or accident when the
same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or
prior or subsequent to the conduct at issue in the case.
....
Mich. R. Evid. 404 (effective June 1, 1995). This version was in effect at the time of Gagne’s trial (circa
February 2001). Rule 404 was amended on May 21, 2001 (effective September 1, 2001), but the only
change to the above-quoted passage was the substitution of “alleged victim” for “victim” in subrule (a)(3).
See Notes to the 2001 Amendment.
No. 07-1970 Gagne v. Booker Page 8
And . . . maybe this will be the case. This is, to put it mildly, an
unusual case, and I would only submit [that] to prohibit that evidence [of
the group sex with Bermudez and the offer of group sex with Gagne’s
father] from coming in because there is a third party involved would
serve no purpose either under the rape shield statute and it certainly
would, I think, violate my client’s [constitutional] right to
confrontation[7] and right to establish evidence that goes toward the issue
of consent.
At the trial court’s invitation, the State offered this response:
Yes, Judge. In relation to [the prior acts or offers of group sex],
I would suggest, number one, that . . . this is pure, unabashed character
evidence and trying to show character and action in conformity
therewith, which is prohibited by the first sentence of 404(A) and 404(B)
of the Michigan Rules of Evidence.
Secondly, it is irrelevant to the question of whether the victim on
the date in question consented to sexual activity with these two
defendants together. And I agree with the [c]ourt, Judge, that, as I said,
the presence of additional people other than the actors in this case shows
that the evidence is not allowed under the [rape shield] statute, and again,
Judge, it’s highly inflammatory. And in relation to [the Tony’s Lounge
Incident], Judge, yes, the two actors are involved and if this [c]ourt finds
that the balancing test weighs in favor of the admission for the
defendants [then] in order for that balancing test really to work, I think
this [c]ourt must preclude the information of the activities of other
individuals because it takes it to inflammatory levels and it also has
nothing to do with the victim’s consent [to the sexual activities, as
described,] with these two individuals. Nothing further.
The trial court analyzed the items’ admissibility under the Rape Shield Law,
M.C.L. § 750.520j, and did not address Gagne’s constitutional claim (i.e., “right to
confrontation”) or the State’s argument concerning Rule 404 of the Michigan Rules of
Evidence.8 The court explained:
7
This was defense counsel’s first assertion of a constitutional right to this evidence.
8
It is perhaps noteworthy that the analysis contained herein would have been markedly different
if the trial court had decided the issue based on the “standard” rules of evidence rather than the Rape Shield
Law, inasmuch as it is the established law of this Circuit (and, therefore, presumptively reasonable) that
“[t]he Sixth Amendment right to present a complete defense . . . does not imply a right to offer evidence
that is otherwise inadmissible under the standard rules of evidence.” Wynne v. Renico, 606 F.3d 867, 871
(6th Cir. 2010) (quoting United States v. Lucas, 357 F.3d 599, 606 (6th Cir. 2004)); accord United States
v. Armstrong, 436 F. App’x 501, 505 (6th Cir. 2011).
No. 07-1970 Gagne v. Booker Page 9
As to 520j(a), evidence of a victim’s past sexual conduct with the
actor, the [c]ourt believes that as to [the Tony’s Lounge Incident,] that
that matter ought to be permitted to come to the jury’s attention. I don’t
find that it is inflammatory or prejudicial in nature, and its probative
value outweighs its possible prejudicial value.
As to [the sex toys], the [c]ourt will permit discussions with the
victim, I take it on cross-examination of the victim by [Gagne’s counsel]
and perhaps [Swathwood’s counsel]. [The use of sex toys], it would
appear to the [c]ourt, if true, it is not inflammatory or prejudicial to the
extent that it outweighs its probative value.
As to the remainder of [Gagne’s] motion, [the group sex with
Ruben Bermudez] doesn’t fit the statute, [the invitation to David Stout]
doesn’t fit the statute, [another item] is withdrawn, [and the offer of
group sex with Gagne’s father] doesn’t fit the statute. So none of those
may be - - inquiry may not be made about any of those; only [the Tony’s
Lounge Incident and the sex toys].
The court granted Gagne’s “Motion and Offer of Proof” in part, by admitting the first
and third items (the Tony’s Lounge Incident and the use of sex toys), and formalized this
decision in an order filed January 17, 2001. The court denied the second and fifth items
(the group sex with Bermudez and the offer of group sex with Gagne’s father), along
with some other proposed evidence. The court’s basis for excluding each of these items
was that it “doesn’t fit the statute,” meaning that because an item involved a third party
(i.e., another person), it would not satisfy the § 750.520j(1)(a) exception for “[e]vidence
of the victim’s past sexual conduct with the actor.” The trial court initially excluded the
fourth item (the invitation to Stout) based on a misunderstanding of its nature, but then
clarified that it would allow that item, as it was limited to events on the night in question.
That testimony was ultimately admitted during trial.
Gagne moved immediately for reconsideration, arguing as to the second and fifth
items (the group sex with Bermudez and the offer of group sex with Gagne’s father) that
Michigan case law, namely, Michigan v. Hackett, 365 N.W.2d 120 (Mich. 1985),
supported its admission. In Hackett, the Michigan Supreme Court said that “specific
instances of [a] complainant’s past sexual conduct with third persons is ordinarily
irrelevant and inadmissible to show consent,” but for “extraordinary circumstance.” Id.
No. 07-1970 Gagne v. Booker Page 10
at 128. In a footnote to the “extraordinary circumstance” caveat, the Hackett court noted
that “[s]exual history might . . . be relevant where the victim has engaged in a prior
pattern of behavior clearly similar to the conduct immediately in issue.” Id. at 128 n.4
(quoting United States v. Kasto, 584 F.2d 268, 271 n.2 (8th Cir. 1978)). From this,
Gagne argued for reconsideration and admission of these two items because they
“establish as clear a pattern as can be imagined which is similar to what is alleged here
as non-consensual conduct.”
Gagne did not argue in his motion for reconsideration that the trial court had
overlooked his constitutional right-to-confrontation claim, nor did he raise any other
constitutional claim (e.g., fair-trial or complete-defense). The trial court denied the
motion, finding no “palpable error” in its earlier decision and, thus, no basis upon which
it could grant reconsideration.
B.
On direct appeal to the Michigan Court of Appeals, Gagne9 challenged the trial
court’s exclusion of the evidence regarding the group sex with Bermudez and the offer
of group sex with Gagne’s father, claiming that the court had (1) misinterpreted the Rape
Shield Law and (2) misapplied the Rape Shield Law in a way that violated his
constitutional rights.
Gagne first argued that the trial court misinterpreted the Michigan Rape Shield
Law, specifically the exception in § 750.520j(1)(a) that allows for the admission of
“[e]vidence of the victim’s past sexual conduct with the actor,” by limiting its scope to
just those incidents of “the victim’s past sexual activity with only the actor.” Even
though others were involved or present — be it Swathwood, Bermudez, or Gagne’s
father — each of the incidents in question included victim P.C. and defendant-actor
Gagne and, therefore, satisfied the exception as written, i.e., “the victim’s past sexual
conduct with the actor.” In Gagne’s view, by excluding incidents on the basis that others
9
Although we refer to only Gagne, both defendants appealed, raising similar claims, and the
Michigan Court of Appeals consolidated the appeals. See Swathwood, 2003 WL 1880143 at *1.
No. 07-1970 Gagne v. Booker Page 11
were present in addition to the defendant-actor, the trial court improperly “read into the
statute a general exclusion of [evidence of past incidents of] group sexual activity.”
Gagne argued that “[i]n the context of group sex involving the complainant, the
defendant, and other parties, the presence of those other parties serves only to
characterize the type of sex between the complainant and the defendant,” and the
exception, § 750.520j(1)(a), “is not concerned with the type of sexual activity.” Or, as
Gagne argued:
The rape-shield law is designed to prevent Mr. Gagne from making the
argument that because [P.C.] had previously consented to sex with other
men she must have consented to sex with him on the night in question.
However, evidence that [P.C.] previously consented to group sex with
Mr. Gagne is clearly relevant to the issue of whether she consented to
group sex with Mr. Gagne on the night in question. The proposed
evidence [would have] had the tendency to make the existence of consent
more probable than it would [have been] without the evidence.
Obviously, this omits from consideration the identity of any other participant in the
group sex and, instead, defines “group sex” as just a type of sex or sex act, such as
vaginal sex, oral sex, anal sex, rough sex, exhibitionist sex, etc. That is, by this
reasoning, “the presence of those other parties” does not describe or alter the victim’s
perception of the “actor” (i.e., the victim’s chosen partner or partners), but merely
describes the nature of the sexual conduct between them.10
Gagne also argued that the trial court had misapplied the Michigan Rape Shield
Law in violation of his “constitutional rights to a fair trial, to confront the complainant,
and to present a [complete] defense.” Gagne cited Crane v. Kentucky, 476 U.S. 683
(1986), California v. Trombetta, 467 U.S. 479 (1984), and Washington v. Texas, 388
U.S. 14 (1967), in support of this proposition, but also acknowledged that these rights
are “not without limitation [and] may, in appropriate cases, bow to accommodate other
10
Indeed, the Michigan Court of Appeals understood Gagne and Swathwood to be arguing “that
the fact that [P.C.]’s and Gagne’s sexual history included another person was merely an aspect or
characteristic of their sexual relationship.” Swathwood, 2003 WL 1880143 at *1. But it did not address
this question and instead affirmed on another basis. Id. at *2 (“Even viewing the evidence as defendants
urge, as merely an instance of prior sexual conduct with defendant, an aspect of which was the inclusion
of other persons, the evidence is not automatically admissible.”)
No. 07-1970 Gagne v. Booker Page 12
legitimate interests in the criminal trial process,” quoting Michigan v. Lucas, 500 U.S.
145, 149 (1991) (editorial and quotation marks omitted) (quoting Rock v. Arkansas, 483
U.S. 44, 55 (1987).11 Gagne then pointed the court to Michigan case law for the
proposition that the State’s legitimate interest in limiting the admission of evidence must
be “balanced against the fundamental requirements of the [C]onstitution,” Michigan v.
Redmon, 315 N.W.2d 909, 914 (Mich. Ct. App. 1982) (citing Davis v. Alaska, 415 U.S.
308 (1974)), and argued that, while the State’s interest in its rape-shield law might be
sufficiently compelling when the evidence is of minimal probative value, “[a]s to
evidence of high probative value, . . . no state interest can be compelling enough to
preclude its introduction,” quoting Washington v. Hudlow, 659 P.2d 514, 523 (Wash.
1983) (citing Redmon). Gagne insisted that testimony about group sex with Bermudez
and the offer of group sex with Gagne’s father was highly probative:
The probative value of the proffered evidence to the issue of consent was
especially weighty because of the nature of the sexual activity in
question. The idea that a woman would have sex with two or more men
at the same time strikes most people as bizarre and a jury, therefore,
[would] be inclined to view a consent defense in a case like this one with
inherent disbelief. The evidence of past consensual group sexual activity
is relevant to show that the charged incident in question occurred
consensually, as [the defendants] testified it did, rather than as [P.C.]
stated.
To support his argument, Gagne analogized his case to three Michigan court cases, see
Michigan v. Perkins, 379 N.W.2d 390 (Mich. 1986); Michigan v. Williams, 330 N.W.2d
823 (Mich. 1982); Michigan v. Zysk, 386 N.W.2d 213 (Mich. Ct. App. 1986), and
discussed two cases in which “[o]ther states have . . . interpreted their own rape shield
statutes to allow evidence of past consensual group sex activity that included the victim
and defendant”; see South Dakota v. Blalack, 434 N.W.2d 55 (S.D. 1988), and
California v. Keith, 173 Cal. Rptr. 704 (Cal. Ct. App. 1981). Gagne concluded his
argument on his constitutional claim with this paragraph:
11
Gagne did not cite either Chambers v. Mississippi, 410 U.S. 284 (1973), or Olden v. Kentucky,
488 U.S. 227 (1988), in his brief to the Michigan Court of Appeals. Nor did the Michigan Court of
Appeals cite either in its opinion.
No. 07-1970 Gagne v. Booker Page 13
Given the remarkable similarity of the proposed evidence of past
consensual group sex involving [P.C.] and Mr. Gagne to the episode of
group sex that [P.C.] alleged was non-consensual, the evidence at issue
here was highly probative of the issue of her consent on the night in
question. The probative nature of the evidence far outweighed its
prejudicial effect and would have illuminated for the jury the nature of
[P.C.]’s and Gagne’s sexual relationship. Because the proffered evidence
was so probative on the issue of consent and because it was not overly
prejudicial in any way that would implicate a compelling state interest,
it should have been admitted to allow Lewis Gagne to confront [P.C.]’s
testimony and to establish his defense.
Essentially, Gagne’s “constitutional” argument to the Michigan Court of Appeals was
that the probative value of the evidence far outweighed its prejudicial effect.12
The Michigan Court of Appeals began its analysis by quoting the Rape Shield
Law, M.C.L. § 750.520j(1), but acknowledged that “[i]n certain limited situations,
evidence that does not come within the specific exceptions of the statute may be relevant
and its admission required to preserve a criminal defendant’s Sixth Amendment right of
confrontation.” Swathwood, 2003 WL 1880143 at *1. Consequently, the court looked
to three cases from the Michigan Supreme Court: Michigan v. Arenda, 330 N.W.2d 814
(Mich. 1982), Michigan v. Hackett, 365 N.W.2d 120 (Mich. 1984), and Michigan v.
Adair, 550 N.W.2d 505 (Mich. 1996), all of which considered Sixth Amendment
challenges to a trial court’s exclusion of evidence pursuant to the Michigan Rape Shield
Law.
In Arenda, 330 N.W.2d at 815, the defendant was charged with “sexual assaults
upon his eight-year-old son[,] during which the boy was made to perform acts of
fellatio,” id. at 819 (Kavanagh, J., dissenting); see also Michigan v. Arenda, 296 N.W.2d
143, 145 (Mich. Ct. App. 1980) (intermediate appellate court decision overruled on other
grounds). The defendant “denied participating in the alleged acts of fellatio, claiming
that he was not with his son when the acts occurred.” Arenda, 296 N.W.2d at 145. The
12
In fact, one might reasonably consider this less a “constitutional” argument than an argument
about the application of the Michigan Rape Shield Law, which contains the provision: “unless and only
to the extent that the judge finds that . . . its inflammatory or prejudicial nature does not outweigh its
probative value,” M.C.L. § 750.520j(1).
No. 07-1970 Gagne v. Booker Page 14
prosecution’s case was founded solely on the eight-year-old victim’s uncorroborated
testimony, but the persuasiveness of that testimony was enhanced considerably by the
child’s ability to describe the sex acts in great detail. See Arenda, 330 N.W.2d at 817;
id. at 820 (Kavanagh, J., dissenting) (“At trial, the prosecutor introduced evidence of
prior sexual conduct between the victim and defendant to show that the ability of the
youthful victim to explicitly describe fellatio was a result of having been forced by
defendant to perform it.”). In response, the defendant sought to introduce evidence of
the boy’s past, similar sexual conduct with others, to explain how this eight-year-old boy
could “describe vividly and accurately the sexual acts that allegedly occurred.” Id. at
815. The defendant argued that this evidence was indispensable to his defense, as it was
his only means of answering the question that the prosecutor had placed in the mind of
every juror: How else could the child have come by such detailed knowledge? See id.
The trial court excluded this evidence pursuant to the Rape Shield Law and, upon
conviction, the defendant appealed. The Michigan Court of Appeals affirmed this part
of the trial court’s decision succinctly, holding that “information about the child’s
alleged outside sexual encounters does not fall within either exception” to the Rape
Shield Law. Arenda, 296 N.W.2d at 145. On appeal to the Michigan Supreme Court,
the defendant claimed that the Rape Shield Law’s “prohibitions infringe[d] upon his
Sixth Amendment right of confrontation.” Arenda, 330 N.W.2d at 815; see also id. at
821 (Kavanagh, J., dissenting). The dissent agreed with the defendant, arguing that the
Rape Shield Law’s “categorical exclusion,” without proper consideration of context, of
“evidence of a victim’s sexual conduct with persons other than the defendant,” was
unconstitutional. Id. at 823 (Kavanagh, J., dissenting). The majority, however, found
that defense counsel had cross-examined the victim about possible sexual contact with
others (which the victim denied) and had failed to proffer evidence that the alleged prior
acts had actually occurred. Id. at 818. The majority held that the Rape Shield Law was
not unconstitutional on its face, id. at 815, and that “there [was] no basis on th[e] record
for the conclusion that [the] defendant was denied the right of confrontation,” id. at 818.
Therefore, the Michigan Supreme Court upheld the exclusion of the evidence.
No. 07-1970 Gagne v. Booker Page 15
In Hackett, 365 N.W.2d at 122-23, the Michigan Supreme Court considered the
constitutionality of the Michigan Rape Shield Law in a consolidated appeal from two
separate cases involving the trial courts’ exclusion of evidence of the victims’ prior
sexual conduct, over the defendants’ protests that such exclusion violated their Sixth
Amendment rights to confrontation and cross-examination. In the first sub-case,
defendant Hackett, a black man incarcerated at a Michigan correctional facility, was
charged with forcing the victim, a white male inmate, to submit to forced anal
intercourse. Id. at 126-27; id. at 128-29 (Kavanagh, J., concurring); id. at 132 (Levin,
J., dissenting). Hackett claimed consent and “sought to introduce specific instances of
the complainant’s prior homosexual conduct with [other black] prisoners . . . to
circumvent the inference that it would be improbable that a white male prisoner would
consent to sodomy by a black male prisoner.” Id. at 126.13 The Michigan Court of
Appeals reversed and vacated the conviction, holding that the exclusion of the victim’s
sex-history evidence denied Hackett a fair trial. Id. at 130 (Kavanagh, J., concurring).
In the other sub-case, defendant Paquette and his co-defendant were charged with
forcing the victim — a married woman, five months pregnant, whom they had picked
up on the highway after her car had run out of gas — to undress and “perform various
sexual acts with them[,] by threatening to hurt her and her unborn baby.” Michigan v.
Paquette, 319 N.W.2d 390, 391 (Mich. Ct. App. 1982); Hackett, 365 N.W.2d at 128; id.
at 129 (Kavanagh, J., concurring); id. at 133 (Levin, J., dissenting). Paquette claimed
consent and sought to introduce evidence that, on a night shortly before the incident, the
victim had “allegedly met a man in a bar and left with him for consensual sexual
13
See also id. (“Defendant [Hackett] also claims that evidence of the complainant’s reputation
for, or specific acts of, homosexual conduct, with black male prisoners in particular, should have been
admitted as necessary to establish his defense of consent. Defendant [Hackett] argues that such evidence
would have made it more probable for the jury to believe that the complainant, a white male prisoner,
consented to or solicited the act of sodomy with the defendant, a black male prisoner.”); id. at 129
(Kavanagh, J., concurring) (“The evidence was also needed, argued [Hackett’s] defense counsel, to
circumvent an assumption that it would be improbable that a white male prisoner would consent to sodomy
by a black male prisoner.”); id. at 133 (Levin, J., dissenting) (“Hackett’s written motion for admission of
the evidence asserted that it was relevant to show that the complainant would be likely to consent to or
solicit sexual contact with Hackett, to rebut the assumption that a white man would not consent to or solicit
sodomy by a black man, and to impeach the complainant’s preliminary examination testimony denying
that he was a homosexual.”).
No. 07-1970 Gagne v. Booker Page 16
relations in a motel.” Id. at 127.14 The Michigan Court of Appeals affirmed the
exclusion of the evidence and upheld the conviction. Paquette, 319 N.W.2d at 392.
On appeal to the Michigan Supreme Court, the prosecution argued that the
Michigan Rape Shield Law compelled the court to exclude the evidence; the defendants
argued that the Constitution compelled the court to admit it. Hackett, 365 N.W.2d at
122. The dissent argued that:
The procedures in the instant cases violated the defendants’ rights to
confrontation and compulsory process and denied them fair trials and due
process of law. In Hackett, the proffered evidence was relevant to rebut
jury assumption and inference that a white man would not solicit or
consent to an act of sodomy by a black man . . . . In Paquette, the
evidence was relevant to rebut jury assumption and inference that a
married, pregnant woman does not seek to engage in casual sexual
relations.
Id. at 135-36 (Levin, J., dissenting) (paragraph breaks and footnote omitted).
Specifically:
The defendants are properly concerned that the jurors will see the
complaining witnesses as persons who are not likely to have consented
to the sexual acts, not because they are chaste persons . . . but because . . .
the charged sexual behavior is, in the jurors’ experience, ‘aberrant.’ It
is ‘aberrant’ for a married, pregnant woman to be looking for casual sex
and it is ‘aberrant’ for a white man to solicit or consent to a sexual
relationship with a black man. At least that is what most jurors will
think.
Id. at 135 (Levin, J., dissenting). But the majority was not persuaded. Concerning
Hackett:
[A] close[] question is presented where such evidence was sought to
dispel the assumption that most jurors would believe such an act,
especially given the interracial element, is not likely to occur voluntarily.
Nevertheless, we do not believe [the] defendant was denied his
14
See also id. at 129 (Kavanagh, J., concurring) (“[Paquette] also sought to introduce testimony
of what he said was a circumstance similar to the one for which [he] was on trial, that shortly before the
incident alleged the complainant had met a man in a bar and left with him to enjoy sexual relations that
night in a motel.”); id. at 133-34 (Levin, J., dissenting) (“Paquette sought to introduce evidence . . . that
[the victim] had engaged in consensual sexual relations with a stranger that she had met in a bar . . . . The
evidence was offered as relevant on the issue of consent.”).
No. 07-1970 Gagne v. Booker Page 17
constitutional right to confrontation since he had a reasonable
opportunity to introduce evidence which would have permitted a
discriminating appraisal of [the] complainant’s possible consent.
Evidence of a specific instance of alleged homosexual conduct between
complainant and a black male inmate occurring three days before the
incident in question was brought out at trial as well as evidence of two
stains of seminal fluid which may have been from more than one person.
The defendant was not denied his right to confrontation since he was
given the opportunity, even though limited in fashion, to expose to the
jury the complainant’s past homosexual encounter with a prisoner of the
same race as defendant as tending to show his consent in this instance.
Id. at 127. Concerning Paquette, the court concluded:
[T]here are no extraordinary circumstances disclosed in the record to take
this case out of the general rule of inadmissibility. The fact that [the]
complainant may have consented to sexual activity at some time in the
past with a man other than the defendant, whom she met in a bar and
accompanied to a motel, is not sufficiently similar to the facts at hand to
be relevant to the issue of consent. Here, the simultaneous sexual acts
between complainant and two strangers, one of whom was the defendant,
occurred in the cab of a truck after the strangers had picked up the
complainant on the road near her car which had run out of gas.
Moreover, complainant’s alleged reputation for engaging in consensual
sexual relations in the past, does not tend to prove that she did so with
defendant at the time in question.
Id. at 128. Therefore, the Michigan Supreme Court rejected the proposition that the
Sixth Amendment compelled the admission of evidence because, without it, the jury
would likely view the particular sexual conduct as “aberrant” and assume that the victim
would not consent to it.
In Adair, 550 N.W.2d at 507-08, the defendant was charged with sexually
assaulting his wife by “digital-anal penetration,” and sought to introduce evidence that
“digital-anal sexual activity was common practice in the couple’s marriage.” The trial
court excluded this evidence and the Michigan Court of Appeals affirmed. Id. at 508.
The Michigan Supreme Court characterized this evidence by “its highly prejudicial
nature and its nonexistent probative value” and agreed that it was properly excluded. Id.
at 513. But the dissent disagreed with the majority’s characterization:
No. 07-1970 Gagne v. Booker Page 18
[E]vidence of past consensual atypical sexual conduct is relevant to
negat[e] the inferences jurors might draw, on their own initiative, absent
such evidence, [such as] that the incident must have occurred as the
complainant testified, because [a juror] could not have imagined such
abnormal sexual conduct, or [a juror might imagine] that this abnormal
sexual conduct is just the kind of hostile behavior an estranged husband
would perpetrate on his wife to humiliate and subjugate her.
Id. at 513 n.2 (Levin, J., dissenting).
Digital-anal sex may or may not be part of the sexual experience of one
or more of the jurors who shall be empaneled to try this case. To the
extent that it is, the evidence of past consensual digital-anal sex is less
prejudicial; to the extent it is not, such evidence is more probative,
especially for jurors who may have had little or no experience with
digital-anal sex and who, on the basis of such inexperience, might regard
digital-anal sex as deviant sexual behavior, and who might conclude —
absent the evidence that the complainant and the defendant had
consensually engaged on a number of occasions in such atypical sexual
conduct — that a woman (the complainant) would not consent to such a
penetration of her body.
Id. at 513-14 (Levin, J., dissenting). The majority was, apparently, not persuaded.
In the present case, the Michigan Court of Appeals framed Gagne’s argument
thus: Gagne and Swathwood “argue that without this evidence that group sex was not
foreign to [P.C.], the jury likely would reject a consent defense because the incident
involved more than one partner.” Swathwood, 2003 WL 1880143 at *2. The court
rejected this argument, explaining:
[E]vidence of a victim’s prior sexual conduct with [a] defendant is only
admissible if and to the extent that the judge finds that the evidence is
material to a fact at issue in the case and that its inflammatory or
prejudicial nature does not outweigh its probative value. [P.C.]’s willing
participation in a threesome with Gagne and Bermudez is not probative
of whether she consented to a threesome with Gagne and Swathwood on
the night of the alleged offense. [T]he threesome involving Bermudez
occurred while [P.C.] and Gagne were still dating. The instant offense
occurred after they had ended their relationship and it involved
Swathwood, not Bermudez. In light of the lack of similarity between the
Bermudez threesome and the instant offense, we conclude that the trial
court did not abuse its discretion in excluding the evidence.
No. 07-1970 Gagne v. Booker Page 19
Id. (quoting M.C.L. § 750.520j(1)) (quotation and editorial marks omitted; other
citations omitted).
The Michigan Court of Appeals also rejected Gagne’s argument that the trial
court erred by excluding testimony of P.C.’s “expressed desire to engage in group sex
with Gagne and his father”:
Although the conduct involved defendant Gagne, like the evidence of the
threesome with Bermudez, the evidence is not probative of whether
[P.C.] consented in the instant matter to engage in sexual relations with
Gagne and Swathwood. . . . [T]he evidence was not relevant to the issue
of consent, and . . . the trial court did not abuse its discretion in excluding
the evidence.
Moreover, in light of the other evidence of [P.C.]’s past sexual
conduct that the trial court did admit, we reject [the] defendants’
argument that their [Sixth Amendment] rights of confrontation compelled
the admission of this evidence and take note of the evidence that the trial
court did admit. The jury heard about ‘The Tony’s Lounge Incident,’ in
which [the] defendants, [P.C.], and two other women engaged in group
sex, according to [the] defendants’ version of the incident. [The]
[d]efendants further testified that the incident included [P.C.] performing
oral sex on Swathwood. Even [P.C.] testified that[,] after The Tony’s
Lounge Incident[,] Gagne told her that she had engaged in oral sex with
Swathwood, but she was unable to recall whether she had done so
because she was intoxicated. Therefore, [the] defendants presented
evidence that [P.C.] was not averse to group sexual activity.
Id. at *3. The Michigan Court of Appeals also rejected the several other claims,
including prosecutorial misconduct and ineffective assistance, and affirmed the
convictions and sentences.
Gagne sought leave to appeal to the Michigan Supreme Court, but was denied.
Michigan v. Gagne, 673 N.W.2d 755 (Mich. Dec. 29, 2003). That exhausted his
possible state remedies.
C.
On December 29, 2004, Gagne filed an eight-page, pro se petition for a writ of
habeas corpus in the United States District Court for the Eastern District of Michigan.
No. 07-1970 Gagne v. Booker Page 20
Gagne raised three claims he had raised in the state courts — improper exclusion of
evidence, prosecutorial misconduct, and ineffective assistance of counsel — and
appended a copy of the brief his counsel had filed in the Michigan Court of Appeals as
the brief in support of his habeas petition.15 The State responded that the first aspect of
the improper-exclusion-of-evidence claim — that the Michigan Court of Appeals had
misinterpreted the Michigan Rape Shield Law — was a state-law issue and, therefore,
not cognizable on federal habeas. The State addressed the constitutional aspect of the
improper-exclusion-of-evidence claim by pointing out that a criminal defendant’s right
to present evidence is not unlimited, and argued that the Michigan courts had been
correct to conclude that P.C.’s past sexual acts with others was “legally irrelevant” to her
accusation of Gagne, such that the Sixth Amendment was not even implicated.16
The district court began its analysis by acknowledging that the Antiterrorism and
Effective Death Penalty Act (AEDPA) applies in this case and, under AEDPA, a federal
court may not grant a writ unless the state court’s decision “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court,” or “was based on an unreasonable determination of facts in light of the
evidence presented in the state court proceeding.” Gagne v. Booker, No. 04-60283, 2007
WL 1975035 at *3, 2007 U.S. Dist. LEXIS 47616 (E.D. Mich. July 2, 2007) (quoting
28 U.S.C. § 2254(d)(1)-(2)). The district court then explained what is meant by
“contrary to” and “unreasonable application of” clearly established federal law. Id. And
the district court expressly declined to consider Gagne’s claim that the Michigan Court
of Appeals had misinterpreted the Michigan Rape Shield Law because that state-law
claim was not cognizable on federal habeas review. Id. at *5 (“Whether the state courts
15
Recall that, in this brief, Gagne did not cite Chambers or Olden, and only cited Crane for the
general proposition that an accused is entitled to present a complete defense. See n.11, supra.
16
The State did not cite or refer to Crane v. Kentucky even one time in its response. That is
because Gagne had not pointed to Crane as the clearly established federal law that he was claiming the
Michigan Court of Appeals had unreasonably applied. The State did not cite to Olden in its response
either, and cited Chambers only in a parenthetical to United States v. Torres, 937 F.2d 1469, 1474 (9th Cir.
1991), which it cited for the proposition that “the right to present a defense is not absolute and may have
to bow to accommodate other legitimate interests in the criminal trial process.”
No. 07-1970 Gagne v. Booker Page 21
correctly applied their own rape shield law is, by itself, of no concern to a federal habeas
court.” (citation omitted)).
The district court granted the writ based on Gagne’s claim that, by excluding the
testimony regarding the group sex with Bermudez and the offer of group sex with his
father, the Michigan Court of Appeals had violated his Sixth Amendment rights to a fair
trial, to confront the witnesses against him, and to present a complete defense. Id. at *5-
9. Despite the district court’s acknowledgment of AEDPA’s application and the AEDPA
standard, it is far from clear from the opinion just what “clearly established federal law”
the court was referring to or relying on, or exactly how the Michigan Court of Appeals
had contradicted or unreasonably applied it. See id. The district court apparently
considered circuit and district court cases to be representative of “clearly established
Supreme Court precedent”; more importantly, the district court conducted a plenary
review. See id. The district court’s concluding paragraph on this issue is representative
of its overall analysis:
The [c]ourt concludes that [Gagne]’s right to a fair trial and his right to
present a full and meaningful defense were violated by his inability to
introduce additional facts about [P.C.]’s conduct. The omitted evidence
might have created a reasonable doubt that did not otherwise exist, and
it might have altered the jury’s impression of [P.C.]’s credibility.
Therefore, the state court’s decision resulted in a decision that was
contrary to, or an unreasonable application of, clearly established federal
law. Well-established constitutional principles required the trial court to
balance the State’s interest in excluding evidence against [Gagne]’s right
to present a defense and to establish his innocence. Johnson v. Moore,
472 F. Supp. 2d 1344, 1363 (M.D. Fla. 2007). The Constitution also
required the trial court, if [Gagne]’s interest were greater, to receive
testimony notwithstanding the [Michigan Rape Shield Law]. Id.
Id. at *9. In this one paragraph, the district court offers its own opinion on the value of
the withheld evidence, fails to state any authority for its assertion of “clearly established
federal law,” and relies (twice) on a Florida District Court case for its concluding
propositions of law.
No. 07-1970 Gagne v. Booker Page 22
To be sure, the district court did cite seven Supreme Court cases. The district
court cited Chambers v. Mississippi, 410 U.S. 284, 294 (1973), for the basic proposition
that “the right to confront and cross-examine witnesses and to call one’s own witnesses
is fundamental to a defendant’s due process rights.” Gagne, 2007 WL 1975035 at *5.
Similarly, the district court cited Holmes v. South Carolina, 547 U.S. 319, 324 (2006)
(quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)), for this unremarkable principle:
“the Constitution guarantees criminal defendants ‘a meaningful opportunity to present
a complete defense.’” See id. at *5. Notably, the Supreme Court issued Holmes on May
1, 2006 — over three full years after the Michigan Court of Appeals decided Gagne’s
appeal on April 15, 2003 — and this parenthetical citation to Crane’s quote-within-the-
quote is the only reference to Crane anywhere in the district court’s opinion. The district
court quoted Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987), in stating its proposition
that “[t]he [Sixth] Amendment provides a criminal defendant with ‘the right physically
to face those who testify against him, and the right to conduct cross-examination,” and
Alford v. United States, 282 U.S. 687, 694 (1931), for the proposition that “a trial court
abuses its discretion when it completely bars exploration of a relevant subject on
cross-examination.” Id. at *6. The district court cited Chapman v. California, 386 U.S.
18, 87 (1967), for the harmless-error standard, id., and Olden v. Kentucky, 488 U.S. 227,
232-33 (1988), as an example of a case in which a defendant, accused of rape, was
entitled to introduce certain evidence concerning his accuser’s sexual history, despite the
rape-shield law, because that evidence would have supported the accuser’s motive to lie
and “might have altered the jurors’ impression of the [accuser]’s credibility.” Id. at *8.
But these seven citations pale in comparison to the citations to, expositions of, and
reliance on the numerous circuit court cases.
As evidenced by the forgoing propositions and corresponding Supreme Court
citations, the district court’s opinion contains no explanation of how the Michigan Court
of Appeals contradicted or unreasonably applied clearly established Supreme Court
precedent in Gagne’s case, or just what that precedent was. Also missing from the
district court’s version of the “clearly established law” is any recognition that the
defendant’s Sixth Amendment rights are not absolute. See Lucas, 500 U.S. at 152-53
No. 07-1970 Gagne v. Booker Page 23
(considering Michigan’s Rape Shield Statute under a prior constitutional challenge);
Taylor v. Illinois, 484 U.S. 400, 410-11 (1988) (noting that the Sixth Amendment
Compulsory Process Clause does not grant defendants the unfettered right to offer
testimony); Chambers, 410 U.S. at 295 (clarifying that a defendant’s right to confront
and cross-examine witnesses may have to “bow to accommodate other legitimate
interests in the criminal trial process”).
D.
The State appealed the district court’s grant of the writ, arguing that the evidence
was only minimally relevant and would have been cumulative because the trial court had
admitted evidence of P.C.’s prior participation in group sex with Gagne and Swathwood
when it admitted the testimony about the Tony’s Lounge Incident. Therefore, argued the
State, the Michigan courts had properly excluded the other evidence of group sex (with
Bermudez and Gagne’s father) and, even if they erred by excluding it, any error was
harmless in light of the evidence that was admitted.
In his brief, Gagne did as the district court had done and relied primarily on
circuit and district court cases. Gagne omitted any AEDPA analysis — he did not
specifically identify any controlling Supreme Court precedent, nor did he specify how
the Michigan Court of Appeals had contradicted or unreasonably applied any such
precedent. One passage is particularly noteworthy:
By depriving Lewis Gagne of his ability to present relevant and material
evidence directly bearing on his consent defense, the [Michigan state]
trial court violated his Due Process right to a fair trial. Crane v.
Kentucky, 476 U.S. 683, 690-91, 106 S. Ct. 2142, 2146-47 (1986), and
cases cited therein. See also Johnson v. Moore, supra, 472 F. Supp.2d
at 1356-60 (right to present complete defense is clearly established in
United States Supreme Court decisions).
No. 07-1970 Gagne v. Booker Page 24
Appellee Br. at 23 (Dec. 17, 2008). This was Gagne’s only citation to Crane anywhere
in his brief.17
A Sixth Circuit panel affirmed the district court, holding that “the exclusion of
evidence . . . was an unreasonable application of the principles set forth by the Supreme
Court in Crane.” See Gagne v. Booker, 606 F.3d 278, 288-89 (6th Cir. 2010).18 The
State sought en banc rehearing, which we granted. In its brief to the en banc court, the
State argued that “[t]here is no clearly established Supreme Court law that required the
Michigan courts to admit the excluded evidence on constitutional grounds,” inasmuch
as “[t]he decision in Crane v. Kentucky involved claims very different in character to
those presented here.” Appellant Br. at 2 (Aug. 19, 2010) (footnote omitted). Gagne
responded that “Lucas and Crane converge to provide the principle under which the
district court and the panel granted . . . habeas relief.” Appellee Br. at 6 (Sept. 20, 2010).
III.
Because Gagne filed his habeas petition in December 2004, we apply the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214, codified at 28 U.S.C. § 2254 et al. Under AEDPA, we review the last
state court decision adjudicated on the merits, to determine whether that decision “was
contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or “was based on an
unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(1)-(2).
Gagne claims that the Michigan Court of Appeals unreasonably applied the
principles announced in Michigan v. Lucas, 500 U.S. 145 (1991), and Crane v.
Kentucky, 476 U.S. 683 (1986). Gagne does not claim that the decision was contrary to
17
Gagne did not cite Chambers at all, and he cited Olden only for the proposition that the jury
“might have received a significantly different impression” if the excluded evidence had been presented.
Appellee Br. at 19.
18
Neither the majority opinion nor the concurrence cited either Chambers or Olden.
No. 07-1970 Gagne v. Booker Page 25
the fact-specific outcomes in either of those cases (or any others), nor does he allege any
unreasonable determination of fact.19
19
Judge Kethledge argues in dissent that we should find the Michigan Court of Appeal’s decision
to be “contrary to” the clearly established holdings of three Supreme Court decisions: Chambers v.
Mississippi, 410 U.S. 284 (1973), Crane v. Kentucky, 476 U.S. 683 (1986), and Olden v. Kentucky, 488
U.S. 227 (1988). But we cannot.
There are “two scenarios” in which a “state-court decision falls within [§ 2254(d)(1)]’s ‘contrary
to’ clause”: (1) “the state court applies a rule that contradicts the governing law set forth in [Supreme
Court] cases”; or (2) “the state court confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.”
Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
None of the three Supreme Court cases that Judge Kethledge cites could be considered “governing
law” as to the issue before us here — i.e., the application of Michigan’s Rape Shield Law and the
constitutional limits thereon. The first case, Chambers, 410 U.S. at 294, concerned Mississippi’s hearsay
and voucher rules. The next, Crane, 476 U.S. at 687, concerned Kentucky’s procedure of barring evidence
about the voluntariness of a defendant’s pre-trial confession. And Olden, 488 U.S. at 232, concerned a
state trial court’s exclusion of evidence based on improper “[s]peculation as to the effect of juror’s racial
biases.” None of these holdings directly governs the present issue. See Premo v. Moore, 562 U.S. --, 131
S. Ct. 733, 743 (2011) (explaining that, under AEDPA’s “contrary to” analysis, a federal habeas court may
not “transpose[] [a Supreme Court holding] into a novel context”).
Nor do we believe that Judge Kethledge is suggesting as much. Instead, Judge Kethledge finds
that the present “case is indistinguishable from Chambers”; that “[t]he analysis flows in the same channels
here” as in Crane; and that, “in this case, the Michigan Court of Appeals confronted a ‘set of facts that are
materially indistinguishable from’ [those in] a decision of the Supreme Court, namely Olden.” See
Kethledge, J., Dissenting, infra. To be sure, Judge Kethledge has painstakingly applied the present facts
to the circumstances of those Supreme Court cases, drawn clever analogies between the factual
underpinnings, and argued that the facts of this case should lead to the same outcomes as those cases. But
the present facts are clearly distinguishable from a case about a third-party confession (Chambers), a case
about a defendant’s allegedly coerced confession (Clay), or a case about a rape victim’s interracial
relationship (Olden).
Judge Kethledge has applied the holdings of those three Supreme Court cases to the present facts,
and has done so persuasively. But that does not demonstrate that the outcome is “contrary to” the holdings
of those cases. Which is to say that the “contrary to” and “unreasonable application” clauses are different
things, with independent meanings. Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams, 529 U.S. at
405). As the Supreme Court explained in Williams:
“On the other hand, a run-of-the-mill state-court decision applying the correct legal rule
from [Supreme Court] cases to the facts of a prisoner’s case would not fit comfortably
within § 2254(d)(1)’s ‘contrary to’ clause. Assume, for example, that a state-court
decision on a prisoner’s ineffective-assistance claim correctly identifies Strickland as
the controlling legal authority and, applying that framework, rejects the prisoner’s claim.
Quite clearly, the state-court decision would be in accord with our decision in Strickland
as to the legal prerequisites for establishing an ineffective-assistance claim, even
assuming the federal court considering the prisoner’s habeas application might reach a
different result applying the Strickland framework itself. It is difficult, however, to
describe such a run-of-the-mill state-court decision as ‘diametrically different’ from,
‘opposite in character or nature’ from, or ‘mutually opposed’ to Strickland, our clearly
established precedent. Although the state-court decision may be contrary to the federal
court’s conception of how Strickland ought to be applied in that particular case, the
decision is not ‘mutually opposed’ to Strickland itself.
“Justice STEVENS would instead construe § 2254(d)(1)’s ‘contrary to’ clause to
encompass such a routine state-court decision. That construction, however, saps the
‘unreasonable application’ clause of any meaning. If a federal habeas court can, under
the ‘contrary to’ clause, issue the writ whenever it concludes that the state court’s
application of clearly established federal law was incorrect, the ‘unreasonable
application’ clause becomes a nullity. We must, however, if possible, give meaning to
every clause of the statute. Justice STEVENS not only makes no attempt to do so, but
also construes the ‘contrary to’ clause in a manner that ensures that the ‘unreasonable
No. 07-1970 Gagne v. Booker Page 26
A.
A state court “unreasonably applies” clearly established law when its ruling is
“so lacking in justification that [the] error [is] well understood and comprehended in
existing law[,] beyond any possibility for fairminded disagreement.” Harrington v.
Richter, 562 U.S. --, 131 S. Ct. 770, 786-87 (2011); see also Williams v. Taylor, 529
U.S. 362, 409 (2000) (“objectively unreasonable”).
Importantly, “an unreasonable application of federal law is different from an
incorrect application of federal law . . . [and] [t]his distinction creates a substantially
higher threshold for obtaining relief than [would] de novo review.” Renico v. Lett,
559 U.S. --, 130 S. Ct. 1855, 1862 (2010) (quotation marks omitted). In fact, “[i]t is not
necessary . . . to decide whether the [state court]’s decision — or, for that matter, the trial
judge’s [decision] — was right or wrong . . . . [W]hether the trial judge was right or
wrong is not the pertinent question under AEDPA.” Id. at 1865 n.3. And the possibility
that the federal habeas court might “conclude[] in its independent judgment that the
[state court] applied clearly established federal law erroneously or incorrectly” is wholly
irrelevant. See Williams, 529 U.S. at 411. “[E]ven a strong case for relief does not mean
the state court’s contrary conclusion was unreasonable.” Harrington, 131 S. Ct. at 786.
Because “[a] federal court’s collateral review of a state-court decision must be
consistent with the respect due state courts in our federal system,” Miller–El v. Cockrell,
application’ clause will have no independent meaning. We reject that expansive
interpretation of the statute. Reading § 2254(d)(1)’s ‘contrary to’ clause to permit a
federal court to grant relief in cases where a state court’s error is limited to the manner
in which it applies Supreme Court precedent is suspect given the logical and natural fit
of the neighboring ‘unreasonable application’ clause to such cases.”
Williams, 529 U.S. at 406-07 (internal citations omitted).
Even if we were to assume for the sake of argument that the Michigan Court of Appeals’s
decision in the present case — to exclude evidence of the victim’s past willingness to engage in consensual
group sex — is inconsistent with the principles established by the Court in Chambers, Clay, and Olden,
the decision is not “mutually opposed to [Chambers, Clay, or Olden] itself.” Chambers itself specifically
protects a defendant’s right to introduce evidence about a third-party’s confession to the charged murder.
Clay specifically protects a defendant’s right to introduce evidence about the circumstances surrounding
his own confession to the charged murder. And Olden specifically protects a defendant’s right to introduce
a witness’s inter-racial relationship as evidence of that witness’s bias or motive to lie, even if the trial court
thinks the jurors’ racial biases will prejudice the jury against that witness.
Judge Kethledge has effectively adopted Justice Stevens’s view of the “contrary to” clause — a
view rejected by a majority of the Supreme Court in Williams. We are not at liberty to join him.
No. 07-1970 Gagne v. Booker Page 27
537 U.S. 322, 340 (2003), “AEDPA . . . imposes a highly deferential standard [on the
federal courts] for evaluating state-court rulings, and demands that state-court decisions
be given the benefit of the doubt,” Renico, 130 S. Ct. at 1862 (quotation marks omitted).
Even in the case of a summary denial, when the state court has not fully explained the
rationale for its decision, the reviewing “habeas court must determine what arguments
or theories could have supported the state court’s decision; and then it must ask whether
it is possible [that] fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior [Supreme Court] decision.” Cullen v. Pinholster,
563 U.S. --, 131 S. Ct. 1388, 1402 (2011) (quotation marks and editorial marks omitted).
Moreover, “[e]valuating whether a rule application was unreasonable requires
considering the rule’s specificity.” Harrington, 131 S. Ct. at 786. “The more general
the rule at issue — and thus the greater the potential for reasoned disagreement among
fair-minded judges — the more leeway state courts have in reaching outcomes in
case-by-case determinations.” Renico, 130 S. Ct. at 1864 (editorial and quotation marks
omitted). “[I]t is not an unreasonable application of clearly established Federal law for
a state court to decline to apply a specific legal rule that has not been squarely
established by [the Supreme] Court.” Harrington, 131 S. Ct. at 786 (quoting Knowles
v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419 (2009) (quotation marks omitted)).
“If this standard is difficult to meet, that is because it was meant to be.”
Harrington, 131 S. Ct. at 786. Indeed, “[s]ection 2254(d) reflects the view that habeas
corpus is a guard against extreme malfunctions in the state criminal justice systems, not
a substitute for ordinary error correction through appeal.” Id. (quotation marks and
citation omitted; emphasis added).
B.
Gagne contends that the Michigan Court of Appeals unreasonably applied the
principles clearly established in Lucas and Crane when it affirmed the trial court’s
exclusion of the testimony and questioning about the alleged group sex with Bermudez
and the alleged offer of group sex with Gagne’s father. Lucas, 500 U.S. at 152-53,
stands for the proposition that the trial court must balance a state’s interest in excluding
No. 07-1970 Gagne v. Booker Page 28
certain evidence under the rape shield statute against a defendant’s constitutionally
protected interest in admitting that evidence, on a case-by-case basis — neither interest
is superior per se. And Crane, 476 U.S. at 690-91, stands for the general proposition
that “the Constitution guarantees criminal defendants a meaningful opportunity to
present a complete defense”— such that the court may not “exclude competent, reliable
evidence . . . central to the defendant’s claim of innocence[,] . . . [i]n the absence of any
valid state justification.”
The Michigan Court of Appeals did not cite Lucas or Crane by name, but
identified the governing principles nonetheless, stating: “Application of the rape-shield
statute must be done on a case-by-case basis, and the balance between the rights of the
victim and the defendant must be weighed anew in each case.” Swathwood, 2003 WL
1880143 at *1. Moreover, “[i]n certain limited situations, evidence that does not come
within the specific exceptions of the [rape-shield] statute may be relevant and its
admission required to preserve a criminal defendant’s Sixth Amendment right of
confrontation.” Id. And, “[i]n exercising its discretion, the trial court should be mindful
of the significant legislative purposes underlying the rape-shield statute and should
always favor exclusion of evidence of a complainant’s sexual conduct where its
exclusion would not unconstitutionally abridge the defendant’s right to confrontation.”
Id. (quotation marks omitted).
The Michigan Court of Appeals then analyzed this particular evidence by
weighing its probative value against its prejudicial effect, and the State’s interest against
the defendant’s:
The rape-shield statute generally precludes admission of evidence
of a victim’s past sexual conduct with others, while excepting instances
of a victim’s past sexual conduct with the defendant to the extent it is
relevant and not unfairly []prejudicial. In this case, the prior sexual
conduct in question involves both ‘others’, (i.e., Ruben Bermudez) and
defendant Gagne. Defendants argue that the complainant’s prior
consensual participation in a threesome with Gagne tends to show that
the complainant is not averse to such conduct, which is probative of
whether she consented in the instant case. The trial court was concerned
that although the threesome was indeed prior sexual conduct with
No. 07-1970 Gagne v. Booker Page 29
defendant, it also involved a nonactor, Bermudez. Defendants argue that
the fact that the complainant’s and Gagne’s sexual history included
another person was merely an aspect or characteristic of their sexual
relationship. Defendants argue that without this evidence that group sex
was not foreign to the complainant, the jury likely would reject a consent
defense because the incident involved more than one partner.
We disagree. Even viewing the evidence as defendants urge, as
merely an instance of prior sexual conduct with defendant, an aspect of
which was the inclusion of other persons, the evidence is not
automatically admissible. Rather, evidence of a victim’s prior sexual
conduct with defendant is only admissible if and to the extent that the
judge finds that the evidence is material to a fact at issue in the case and
that its inflammatory or prejudicial nature does not outweigh its
probative value. Here, the complainant’s willing participation in a
threesome with Gagne and Bermudez is not probative of whether she
consented to a threesome with Gagne and Swathwood on the night of the
alleged offense. Notably, the threesome involving Bermudez occurred
while the complainant and Gagne were still dating. The instant offense
occurred after they had ended their relationship, and it involved
Swathwood, not Bermudez. In light of the lack of similarity between the
Bermudez threesome and the instant offense, we conclude that the trial
court did not abuse its discretion in excluding the evidence.
Defendants also argue that the trial court erred in excluding
evidence that the complainant invited Gagne and his father to participate
in a threesome. We disagree.
The evidence that the complainant expressed a desire to have a
threesome with Gagne and his father is a statement that may also be
conduct. . . . Although the conduct involved defendant Gagne, like the
evidence of the threesome with Bermudez, the evidence is not probative
of whether the complainant consented in the instant matter to engage in
sexual relations with Gagne and Swathwood . . . . We conclude that the
evidence was not relevant to the issue of consent, and that the trial court
did not abuse its discretion in excluding the evidence.
Moreover, in light of the other evidence of the complainant’s past
sexual conduct that the trial court did admit, we reject defendants’
argument that their rights of confrontation compelled the admission of
this evidence and take note of the evidence that the trial court did admit.
The jury heard about ‘The Tony’s Lounge Incident,’ in which
defendants, the complainant, and two other women engaged in group sex,
according to defendants’ version of the incident. Defendants further
testified that the incident included the complainant performing oral sex
on Swathwood. Even the complainant testified that after The Tony’s
No. 07-1970 Gagne v. Booker Page 30
Lounge Incident Gagne told her that she had engaged in oral sex with
Swathwood, but she was unable to recall whether she had done so
because she was intoxicated. Therefore, defendants presented evidence
that the complainant was not averse to group sexual activity.
Swathwood, 2003 WL 1880143 at *2-3 (quotation marks and citations omitted).
The Michigan Court of Appeals therefore decided that neither the evidence of
group sex with Bermudez nor the offer of group sex with Gagne’s father was probative
of P.C.’s consent on the night in question because the third participant was different
(Swathwood rather than Bermudez or Gagne’s father) and the surrounding circumstances
were different (i.e., “the threesome involving Bermudez occurred while [P.C.] and
Gagne were still dating[, whereas] [t]he instant offense occurred after they had ended
their relationship”). Furthermore, the jury did hear evidence of P.C.’s participation in
group sex with Gagne and Swathwood during the Tony’s Lounge Incident.
The Michigan Court of Appeals accepted that the State has a legitimate interest
under its Rape Shield Law in excluding evidence, and considered the probity of the
evidence as a measure of Gagne’s interest in admitting it. The United States Supreme
Court has never held that rape-shield statutes do not represent a legitimate state interest,
nor has it ever held that highly probative evidence will necessarily outweigh that
interest. Quite to the contrary, the Court held in Lucas, 500 U.S. at 152-53, that the trial
court must balance the state’s interest against the defendant’s interest on a case-by-case
basis, and neither interest is superior per se. And the Court concluded in Crane, 476
U.S. at 690, that a trial court may even “exclude competent, reliable evidence . . . central
to the defendant’s claim of innocence,” so long as there exists a “valid state
justification.” The Michigan Court of Appeals properly weighed the competing
interests, as Supreme Court precedent requires, and did not misidentify or misapply any
clearly established federal law.
No. 07-1970 Gagne v. Booker Page 31
C.
Gagne argues here — as he argued to the Michigan Court of Appeals20 — that
evidence of group sex with Bermudez and the offer of group sex with Gagne’s father
was not merely competent, reliable, and central to his claim of innocence, but was the
“most relevant piece of evidence”:
[T]he excluded evidence was the most relevant piece of evidence.
It was critical for the defense to show that [P.C.] was willing to engage
in sex with Mr. Gagne and another person at the same time. Without
such a showing, the jury undoubtedly viewed Mr. Gagne’s claim that
[P.C.] voluntarily engaged in group sex with him with inherent
disbelief. . . .
The possibility that a woman would consent to have sex with two
or more men at the same time strikes most people as bizarre, disgusting,
and unlikely. In fact, a recent survey found that only 1% of women
found group sex appealing. Thus, a jury may be inclined to view a
consent defense with inherent disbelief. In this regard, evidence that the
complainant previously consented to group sex with two or more men
including one or more of the defendants does have legitimate probative
value on the issue of consent, beyond the forbidden yes/yes inference.
In any event, courts tend to admit such evidence.
Because Lewis Gagne was not permitted to introduce the
evidence of the prior instances of where [P.C.] engaged in or sought to
engage in sex with him and another man, a critical question on the jury’s
mind — how would anyone consent to this kind of three-way group
sexual activity, was left unanswered. Unanswered by evidence, the jury
would be likely to conclude that she did not consent to such activity.
Appellee Br. at 16-17 (Sept. 20, 2010) (quotation and editorial marks, and citations
omitted).
But this argument had been raised to the Michigan Supreme Court in no less than
four cases, and had been rejected each time. An eight-year-old boy’s prior acts of
fellatio were inadmissible, even though it was critical for the defense to explain how the
20
Recall that Gagne had argued to the Michigan Court of Appeals that “[t]he idea that a woman
would have sex with two or more men at the same time strikes most people as bizarre and a jury, therefore,
[would] be inclined to view a consent defense in a case like this one with inherent disbelief.” See Section
II.B, supra.
No. 07-1970 Gagne v. Booker Page 32
boy had such exacting knowledge of the act. Arenda, 330 N.W.2d at 815. A white
man’s prior solicitation of anal sex from black men was inadmissible, even though jurors
would otherwise find such activities “aberrant” and consent unbelievable. Hackett, 365
N.W.2d at 122. Similarly, a woman’s consensual sex with other men while she was
married and pregnant was inadmissible even though, without such evidence, the jurors
would find such activities “aberrant” and consent unbelievable. Id. A married couple’s
history of “digital-anal penetration” was inadmissible even though jurors would
otherwise find it “abnormal” and assume that no woman would consent to such a
“deviant” invasion of her body. Adair, 550 N.W.2d at 507. The Michigan Court of
Appeals cited each of these cases and was not only aware of these holdings, but as an
intermediate appellate court, was bound by them.
It might be that Gagne is correct that, as a matter of his defense, this was the
“most relevant evidence” and the state courts were wrong to exclude it, but “whether the
trial judge was right or wrong is not the pertinent question under AEDPA,” Renico, 130
S. Ct. at 1865 n.3. The question is whether the last state court’s decision was
“objectively unreasonable,” Williams, 529 U.S. at 409. One might disagree with the
reasons given by the Michigan Court of Appeals — that the evidence was not
sufficiently probative because the third participant(s) in and the surrounding
circumstances of these other incidents were different, or that exclusion of the evidence
was not particularly prejudicial because the jury heard about the Tony’s Lounge Incident
— but these are nonetheless legitimate reasons, and certainly not “so lacking in
justification” as to be “beyond any possibility for fairminded disagreement,” see
Harrington, 131 S. Ct. at 787.
The “group sex” at issue in this case involved P.C.’s prolonged sex (oral, vaginal,
and anal) in various positions with both men concurrently, spankings, and repeated
vaginal and anal penetrations with multiple sex toys, vibrators and a wine bottle,
resulting in vaginal and rectal bleeding and bruising. To be sure, jurors might find this
behavior outlandish, aberrant, abnormal, bizarre, disgusting, or even deviant and,
therefore, find it incredible or inherently unbelievable that P.C. would have consented
No. 07-1970 Gagne v. Booker Page 33
to it. And it is not unreasonable to surmise that those jurors would be more likely to find
consent if they were told that she had engaged in — and offered to engage in — group
sex at least two other times in the past. But, again, that is not the question. The question
is whether the Michigan Court of Appeals was “objectively unreasonable” in rejecting
this argument. Considering the general antipathy for propensity evidence, the State’s
established interest in rape-shield laws, and the Michigan Supreme Court’s repeated
rejection of this argument, we cannot say that the decision in this case was “beyond any
possibility for fairminded disagreement.”
IV.
Because Lewis Gagne cannot demonstrate that the decision of the Michigan
Court of Appeals was objectively unreasonable, we REVERSE the district court and
deny the petition.
No. 07-1970 Gagne v. Booker Page 34
_________________
CONCURRENCE
_________________
SUTTON, Circuit Judge, concurring. I concur in full in the plurality opinion.
I write separately to say two things. First, Judges Moore, Clay and Griffin offer
three additional reasons for denying the writ, all of which make sense to me: (1)
Gagne’s proffered evidence is not as probative as he submits once it is stripped of the
forbidden inference that a woman who consents once to group sex is more likely to
consent to it in the future; (2) the State’s interests in its rape shield laws remain strong
even after a trial court admits some evidence of the victim’s past sexual practices; and
(3) Crane and Chambers do not demand a contrary conclusion because the State’s
interest in its evidentiary rule was either nonexistent (Crane) or weak given the
reliability and relevance of the evidence (Chambers).
Second, the combination of AEDPA and Lucas precludes me from joining Judge
Kethledge’s otherwise-forceful dissenting opinion.
No. 07-1970 Gagne v. Booker Page 35
________________
CONCURRENCE
________________
GRIFFIN, Circuit Judge, concurring. I join Chief Judge Batchelder’s opinion.
I write separately to emphasize the dissent’s unwise trumpeting of propensity evidence
and its failure to appreciate the State’s interest in excluding such evidence.
A defendant’s Sixth Amendment right to present a “complete defense” is not
unlimited. Rather, the right “‘may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process.’” Michigan v. Lucas, 500 U.S. 145, 149
(1991) (quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987)). In this case, it is undisputed
that legitimate State interests support the enforcement of Michigan’s Rape Shield
Statute. Indeed, the Supreme Court has noted that this very statute “represents a valid
legislative determination that rape victims deserve heightened protection against
surprise, harassment, and unnecessary invasions of privacy.” Id. at 150.
In order to resolve Gagne’s Sixth Amendment challenge, the Michigan courts
were required to balance the State interest in enforcing its Rape Shield Statute against
Gagne’s interest in putting forth a complete defense. Id. at 152-53. Given the level of
deference required by AEDPA, I agree with the majority that the Michigan courts were
not unreasonable in performing this case-specific analysis. The dissent, however, holds
that the Michigan courts were unreasonable in weighing the competing interests at stake.
In so doing, the dissent gives little credence to the State’s interest in enforcing its Rape
Shield Statute. Indeed, the dissent maintains that this statute’s “proscription does not
even apply” in this case. I respectfully disagree.
Michigan’s Rape Shield Statute provides that
[e]vidence of specific instances of the victim’s sexual conduct, opinion
evidence of the victim’s sexual conduct, and reputation evidence of the
victim’s sexual conduct shall not be admitted . . . unless and only to the
extent that the judge finds that the following proposed evidence is
material to a fact at issue in the case and that its inflammatory or
prejudicial nature does not outweigh its probative value:
No. 07-1970 Gagne v. Booker Page 36
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source
or origin of semen, pregnancy, or disease.
Mich. Comp. Laws § 750.520j(1). According to the dissent, because the excluded
evidence in this case consisted of group sexual conduct involving both the victim and
Gagne, the Rape Shield Statute does not apply. This is incorrect. Evidence of a victim’s
past sexual conduct with the defendant is admissible “only to the extent that the judge
finds that the . . . proposed evidence is material to a fact at issue in the case and that its
inflammatory or prejudicial nature does not outweigh its probative value.” Id. (emphasis
added). In performing this assessment, the State’s interests underlying the Rape Shield
Statute must still be considered. People v. Adair, 550 N.W.2d 505, 511 (Mich. 1996).
Contrary to the dissent’s conclusion, evidence regarding consensual group sex
does not fit into an exception to Michigan’s Rape Shield Statute, a fact reasonably
considered by the Michigan courts in weighing its probative value and prejudicial nature.
People v. Swathwood, Nos. 235540, 235541, 2003 WL 1880143, at *2-3 (Mich. Ct. App.
Apr. 15, 2003). Indeed, evidence of the victim’s past sexual conduct with others (in this
case Bermudez and Gagne Senior) is generally considered irrelevant and highly
prejudicial. Bell v. Harrison, 670 F.2d 656, 658 (6th Cir. 1982) (“[E]vidence of a rape
victim’s prior sexual activity is of dubious probative value and relevance and is highly
embarrassing and prejudicial.”); People v. Arenda, 330 N.W.2d 814, 817 (Mich. 1982)
(“The prohibitions contained in the rape-shield law represent a legislative determination
that, in most cases, such evidence is irrelevant.”).
Moreover, such propensity evidence is not generally admissible in either Federal
or Michigan courts. See Fed. R. Evid. 404(b) (“Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
conformity therewith[.]”); Mich. R. Evid. 404(b) (same). While it may be commonplace
for one to assume that because a defendant robbed a bank before he likely committed a
charged bank robbery, our well-established law does not permit such an inference
No. 07-1970 Gagne v. Booker Page 37
because it distracts from the issue of whether the crime alleged was committed by the
defendant. Old Chief v. United States, 519 U.S. 172, 181 (1997). As the Supreme Court
has explained, “[a]lthough . . . propensity evidence is relevant, the risk that a jury will
convict for crimes other than those charged–or that, uncertain of guilt, it will convict
anyway because a bad person deserves punishment–creates a prejudicial effect that
outweighs ordinary relevance.” Id. (internal quotation marks and citation omitted).
While propensity evidence is often admissible when it comes to a victim’s past
sexual conduct with the defendant to show consent, Bell, 670 F.2d at 658-59; Adair, 550
N.W.2d at 510; Fed. R. Evid. 412(b)(1)(B), in this case, the evidence at issue was not
offered to demonstrate the victim’s willingness to consent to sexual relations with
Gagne. Indeed, the jury was well aware that the victim had a romantic, sexual
relationship with defendant. Rather, the evidence was submitted to demonstrate the
victim’s general sexual proclivities to show conformity therewith. This is classic
propensity evidence generally excluded by both the Rape Shield Statute and Rule 404(b)
of both the Michigan and Federal Rules of Evidence. As the dissent acknowledges, the
evidence was submitted to show that the victim was willing to engage in “facially
coercive” sexual conduct, not that she was willing to engage in sexual relations with
Gagne. Indeed, the logic espoused by the dissent opens the door to prior sexual conduct
of the victim being admissible, as a constitutional requirement, whenever the sexual
conduct at issue is outside the norm.
In my view, despite the victim’s prior participation with Gagne in group sex, and
prior willingness to participate in group sex with him, the State had an interest in
preventing this propensity evidence from being submitted to the jury on the basis that
it is highly prejudicial and irrelevant. Bell, 670 F.2d at 658; Arenda, 330 N.W.2d at 817.
In sum, the dissent claims that a fundamental, clearly-established constitutional
error was committed by the State courts, not by the exclusion of any direct evidence of
whether the alleged crime was committed, but by the exclusion of propensity evidence.
The dissent embraces the inference that because the victim did it before, she likely did
it again. Moreover, the dissent would not only allow the jury to consider such an
No. 07-1970 Gagne v. Booker Page 38
inference, but would hold that for purposes of habeas corpus review, the exclusion of
such an inference was an unreasonable application of clearly established Federal law, as
determined by the Supreme Court. I respectfully disagree. Given the State’s interest in
enforcing its Rape Shield Statute and the nature of the evidence at issue, the State was
not unreasonable in weighing the interests at stake in favor of exclusion.
No. 07-1970 Gagne v. Booker Page 39
_______________________________________
CONCURRING IN THE JUDGMENT ONLY
_______________________________________
KAREN NELSON MOORE, Circuit Judge, concurring in the judgment only.
I agree that habeas relief is unwarranted under these circumstances. I do not agree,
however, with the plurality’s explanation of why the district court erred in granting
habeas relief in this case.
Clearly established federal law requires that when excluding evidence offered by
a criminal defendant, the trial court must balance the interests of the state in excluding
the evidence with the infringement upon the weighty interests of the defendant in
presenting a complete defense. “Whether rooted directly in the Due Process Clause of
the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of
the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690
(1986) (internal citations and quotation marks omitted). However, the exclusion of
evidence pursuant to evidentiary rules “do[es] not abridge an accused’s right to present
a defense so long as [the rules] are not ‘arbitrary’ or ‘disproportionate to the purposes
they are designed to serve’” and thus do not “infringe[] upon a weighty interest of the
accused.” United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock v.
Arkansas, 483 U.S. 44, 56 (1987)). Rape-shield statutes represent legitimate state
interests and may, in some circumstances, preclude the admission of evidence relating
to a prior sexual relationship between a victim and a defendant. Michigan v. Lucas, 500
U.S. 145, 152-53 (1991).
The plurality starts off on the right track, correctly explaining that a “trial court
must balance a state’s interest in excluding certain evidence under the rape shield statute
against a defendant’s constitutionally protected interest in admitting that evidence, on
a case-by-case basis.” Plur. Op. at 28. But the plurality then makes no effort to analyze
whether the state court reasonably conducted that balancing in Gagne’s case. Instead,
the plurality concludes that because the Supreme Court has not explicitly held that
No. 07-1970 Gagne v. Booker Page 40
“highly probative evidence” could ever outweigh the state’s interest in a rape-shield
statute, the state court’s identification of the state’s interest in a rape-shield statute alone
justifies the exclusion of all related evidence. Id. at 30. Even when that evidence is
purportedly the “most relevant piece of evidence” to a defense, the plurality’s approach
would presumptively call a state-court decision excluding such evidence reasonable
simply if the state court identified a rape-shield statute as the reason behind the
exclusion. Id. at 31. This is not a correct basis for concluding that the Michigan Court
of Appeals in this case—or in any case—did not unreasonably apply clearly established
federal law.
The plurality’s error flows in part from its misinterpretation of the principle that
state courts are entitled to more leeway in the application of “general principles” than
they are specific constitutional rules. Plur. Op. at 27.1 The plurality implies that this
leeway creates an insurmountable hurdle for defendants seeking habeas relief based on
the unreasonable application of general principles. This is not so. The extent to which
clearly established law “‘requires a case-by-case examination of the evidence,’ . . .
obviates neither the clarity of the rule nor the extent to which the rule must be seen as
‘established.’” Williams v. Taylor, 529 U.S. 362, 391 (2000); see Lockyer v. Andrade,
538 U.S. 63, 76 (2003) (reviewing on habeas the application of a “proportionality
principle—the ‘precise contours’ of which ‘are unclear’”). Clearly established law
“encompasses more than just bright-line rules laid down by the Court,” Taylor v.
Withrow, 288 F.3d 846, 850 (6th Cir. 2002), and a lower court errs when it
“unreasonably refuses to extend that principle to a new context where it should apply,”
Williams, 529 U.S. at 407.
Gagne is not entitled to habeas relief because the Michigan Court of Appeals did
not unreasonably apply the clearly established constitutional principles discussed above
to the excluded evidence in this case. An examination of the last reasoned state-court
1
The plurality’s error also rests on its excessive reliance on Michigan Supreme Court opinions.
The plurality suggests, without support, that because the Michigan Supreme Court routinely excludes
purportedly highly relevant evidence under the Michigan rape-shield statute, the Michigan Court of
Appeals opinion could not have unreasonably excluded the proffered evidence in Gagne’s case. Plur. Op.
at 31-32.
No. 07-1970 Gagne v. Booker Page 41
decision reveals a not-unreasonable weighing of the probative value of the excluded
evidence against the state’s interest in its rape-shield statute, resulting in exclusion that
was neither arbitrary nor disproportionate. See People v. Swathwood, Nos. 235540,
235541, 2003 WL 1880143, at *3 (Mich. Ct. App. Apr. 15, 2003) (unpublished opinion).
In many ways, the dissent by Judge Kethledge has the better exposition of the general
constitutional principles at issue in this case and how they should be considered on
habeas. But the dissent, too, errs by grossly exaggerating the application of these
principles to the facts of this case in assessing the reasonableness of the state court’s
application of these principles. I do not agree with the dissent that the evidence excluded
from Gagne’s trial was “indispensable.” Dissent Op. at 64. Nor would I categorize the
state’s interest in this case as “minimal.” Id. At a minimum, reasonable minds could
readily differ on these issues, making habeas relief inappropriate.
The dissent of Judge Kethledge boldly claims that “[t]he only evidence with
which Gagne could realistically defend himself . . . was the evidence that the trial court
excluded.” Dissent Op. at 62. I do not find the excluded evidence so compelling. The
dissent relies heavily on the defense counsel’s proffer that the Bermudez incident was
“nearly identical” to the charged events to then conclude that the Bermudez incident was
“nearly identical brutal sex.” Dissent Op. at 61, 66 (emphasis added). This is a
significant overstatement of the proffer. Defense counsel told the court that “the events
alleged by [Bermudez] is nearly identical in most regards. There are some exceptions,
but the general M.O., if you will, the way that event took place is almost identical to the
way that the events charged in this case took place.” R. 11-2 (1/2/01 State Hr’g Tr. at
19). At no point did defense counsel, either in his papers or at the hearing, characterize
the Bermudez incident as “brutal” or “violent” in any way, and the defense certainly did
not proffer that the Bermudez incident left the victim bleeding and with bruises all over
No. 07-1970 Gagne v. Booker Page 42
her body.2 R. 11-2 (1/2/01 State Hr’g Tr. at 18-19); R. 23-4 (Def.’s Mot. and Offer of
Proof at ¶ 4).
The dissent also suggests that the Bermudez incident and the alleged offer
regarding Gagne’s father were necessary to establish that the victim was willing to
consent to simultaneous sex with more than one person. This is another overstatement.
Although the admitted testimony regarding the Tony’s Lounge incident did not involve
simultaneous sex with two men, the incident involved allegations that the victim engaged
in sexual acts in a group setting with both Gagne and Swathwood. To the extent that any
prior sexual conduct by the victim could bear on her consent in the instant offense
without resting purely on an inappropriate propensity argument, the Tony’s Lounge
incident arguably had greater probative value than either of the excluded encounters in
that it involved group sexual activity with the two men she accused of rape. The
excluded evidence was not so probative of consent in the instant offense as to render its
exclusion a violation of Gagne’s rights, particularly because the trial court did permit
similar testimony relating to the victim’s history. It was certainly not unreasonable for
the state court to conclude as much.
On the other side of the balancing test, the state’s interest in this case is
particularly compelling. The state has a valid interest “in encouraging rape victims to
come forward and in protecting victims from an embarrassing display of their past sexual
history regardless of whether that history includes socially acceptable sexual practices.”
Resp. Supp. Br. at 11; see also Lucas, 500 U.S. at 149-50 (“The Michigan [rape-shield]
statute represents a valid legislative determination that rape victims deserve heightened
protection against surprise, harassment, and unnecessary invasions of privacy.”). The
state also has an interest in preventing irrelevant character evidence in the form of a
victim’s sexual history from misleading or prejudicing a jury when considering a
2
Defense counsel also never proffered that the Bermudez incident involved the use of “a whip”
and a “blue champagne bottle” as the dissent implies. Dissent Op. at 61. The proffer with respect to those
items was that “it was common practice” for the victim and Gagne to use such items during their
consensual sexual encounters. R. 23-4 (Def.’s Mot. and Offer of Proof at ¶ 4). The trial court specifically
allowed the victim to be questioned regarding the use of such objects; the victim admitted to the
consensual use of a whip but denied ever using a wine bottle.
No. 07-1970 Gagne v. Booker Page 43
victim’s testimony relating to the charged events. I do not agree with the dissent’s view
that the state’s interest in excluding evidence under a rape-shield statute in this case was
“minimal.” Dissent Op. at 64, 66. The state’s interests are not eviscerated just because
a trial court has admitted some evidence of a victim’s past sexual practices, as the dissent
seems to suggest. Dissent Op. at 63.
The dissent’s efforts to analogize the enforcement of the state rape-shield statute
in this case with the state rules arbitrarily enforced in Chambers and Crane
inappropriately minimizes the state’s interest in shielding rape victims and in preventing
irrelevant character evidence from biasing a jury. In Crane, the state had not “advanced
any rational justification for the wholesale exclusion” of evidence relating to the
circumstances surrounding a confession when doing so undoubtedly infringed on
weighty interests of the defendant. Crane, 476 U.S. at 691. In Chambers, the state had
a discernible interest in the rule in question—hearsay generally may be excluded to
insure fairness and reliability—but the Supreme Court held that “the hearsay rule may
not be applied mechanistically to defeat the ends of justice,” particularly when the
excluded testimony had other indicia of reliability that would protect the state’s interests
in a fair proceeding. Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Neither case
is truly comparable to the state’s interest in excluding evidence in this case.
When a state court mechanistically applies a rape-shield statute to exclude
indispensable evidence of a victim’s sexual history, habeas relief may be warranted.
That situation, however, is not before us today. The Michigan Court of Appeals properly
stated the relevant constitutional principles and conducted a reasonable review of the
trial court’s evidentiary rulings in light of these constitutional principles. Swathwood,
2003 WL 1880143, at *1 (acknowledging need to balance interests protected by rape-
shield statute with defendant’s right to confrontation). The Michigan Court of Appeals
considered the probative value of the excluded evidence and concluded that the trial
court did not err in excluding some, but not all, of the victim’s past sexual conduct. Id.
at *3. The added probative value of the excluded evidence was indeed questionable, and
the state court’s application of the rape-shield statute was neither arbitrary nor
No. 07-1970 Gagne v. Booker Page 44
disproportionate to the state’s interests in exclusion in this case. Even assuming that it
was a close question whether the excluded evidence should have been admitted, the state
court’s decision upon balancing these interests was not unreasonable. I therefore concur
in the judgment reversing the district court.
No. 07-1970 Gagne v. Booker Page 45
________________________________________
CONCURRING IN THE JUDGMENT ONLY
________________________________________
CLAY, Circuit Judge, concurring in the judgment only. While I agree with the
plurality’s decision to deny habeas relief, I write separately to clarify the limitations
required under the Michigan rape shield law and to further respond to the dissent’s
argument in favor of admitting “pattern of conduct” evidence.
In its discussion of evidence indispensable to the defense, the dissent misapplies
the facts and the application of law as to whether Clark’s sexual history is admissible
evidence as an exception under Michigan’s rape shield law. According to Michigan
evidentiary rules, “evidence of the victim’s past sexual conduct with the actor” may only
be admitted under Michigan’s rape shield law if the “proposed evidence is material to
a fact at issue in the case.” Mich. Comp. Laws § 750.520j(1)(a). As a matter of legal
interpretation, it is clear that this statutory provision outlines what evidence can be
presented (past conduct between victim and actor) and for what purpose (as an offer of
proof of a material fact at issue).
In this case, the fact at issue was one of consent. Therefore, under the rape shield
statute, the trial court had the discretion to permit Gagne to present the Bermudez
evidence if it was material to prior consent between Clark and himself. But there was
no dispute at trial that Clark and Gagne had had prior consensual sexual encounters, even
on the day in question. So it is clear that the purpose of the Bermudez evidence would
not have been to demonstrate prior consent between Clark and Gagne, but prior consent
between Clark and Bermudez. What is not clear is how evidence of consensual sex
between Clark and Bermudez would be material to the material factual issue of whether
Clark consented to sex with Gagne on July 3, 2000. Contrary to the dissent’s position
that the Bermudez incident was “critical” to Gagne’s defense, the factual conclusion that
the Bermudez evidence was indispensable to the central dispute in the case because of
the lack of other evidence is unsupported by the record. The only bridge to finding
evidence of consensual sex between Clark and Bermudez material to whether Clark had
No. 07-1970 Gagne v. Booker Page 46
consensual sex with Gagne on July 3, 2000 is to conclude that the kind of woman who
would say “yes” to someone is the kind of woman who always says “yes.” But this is
the kind of assumption that the Michigan legislature attempted to circumvent by enacting
its rape shield law, and to rule otherwise would undermine the obvious intent of the
legislature. See People v. Arenda, 330 N.W. 2d 814, 816 (Mich. 1982) (stating that
“[p]rimarily, [rape shield statutes] serve the substantial interests of the state in guarding
the complainant’s sexual privacy and protecting her from undue harassment.”). It is
clear that the purpose of the Michigan rape shield law is to protect witnesses, such as
Clark, from the intrusive inquiries which could open the evidentiary door to allow a
defendant to pry into a victim’s sexual history. Such superfluous details of Clark’s
sexual activity with Bermudez would serve no purpose but to embarrass or humiliate
Clark; and furthermore, they fail the materiality test, and should be excluded.
Regardless, whether the Michigan rape shield law actually required exclusion of
the Bermudez evidence is a state law question not cognizable by this Court under habeas
review. The issue of whether the trial court rightly excluded this evidence should not
factor into this Court’s determination. See Logan v. Marshall, 680 F.2d 1121, 1123 (6th
Cir. 1982) (per curiam) (finding that it is not the court’s responsibility to determine
whether the exclusion of the evidence by the trial judge was correct or incorrect under
state law, but rather whether such exclusion rendered petitioner’s “trial so fundamentally
unfair as to constitute a denial of federal constitutional rights”) (citation omitted).
Therefore, there is no evidence of clearly established federal law on the specific issue
presented in this case, which is primarily one of state court application of state law. In
addition, the evidence from the Bermudez incident was not sufficiently material to
warrant an exception under the Michigan rape shield law.
Equally unpersuasive is the dissent’s “fairness and common sense” standard that
it utilizes to support the admissibility of “pattern of conduct” evidence. In this regard,
the dissent would support the analysis of the district court. The opinion of the district
court hinged on its conclusion that “[e]vidence of prior group sex involving Petitioner
and Bermudez and evidence of the complainant’s invitation to Petitioner’s father was an
No. 07-1970 Gagne v. Booker Page 47
indication that it was not unusual or implausible for the complainant to engage in a
‘threesome.’” Gagne v. Booker, 2007 WL 1975035, at * 8 (E.D. Mich. 2007). Simply
speaking, the district court found that the evidence was critical to show Clark’s
propensity, or “pattern of conduct,” for engaging in group sexual activity. Id.
The district court determined that the presentation of this kind of propensity
evidence was pivotal to Gagne’s defense because it helped establish a “pattern of
conduct” which made the claim that Clark consented to the July 3, 2000 sexual
encounter “more probable.” Id. The district court therefore held “that Petitioner’s right
to a fair trial and his right to present a full and meaningful defense were violated by his
inability to introduce additional facts about the complainant’s conduct. The omitted
evidence might have created a reasonable doubt that did not otherwise exist, and it might
have altered the jury’s impression of the complainant’s credibility.”1 Id.
Gagne did not argue, nor did the district court find, that the purpose of
introducing the Bermudez evidence went to Clark’s “motive, bias or prejudice,” but
instead to her propensity. Nonetheless, the district court found that the Sixth
Amendment required that Gagne be allowed to point to individual instances of Clark’s
past conduct to generally attack her credibility, even though this Circuit has previously
held that the Constitution has no such requirement. See Boggs v. Collins, 226 F.3d 728,
739–41 (6th Cir. 2000) (concluding that an accuser’s credibility “will almost always be
the cornerstone of a rape or sexual assault case, even if there is physical evidence—the
Constitution does not require that a defendant be given the opportunity to wage a general
attack on [an accuser’s] credibility by pointing to individual instances of past conduct. . .
[and] simply does not reflect Sixth Amendment caselaw.”).
As the plurality appropriately states, Crane represents the general principle that
“the Constitution guarantees criminal defendants ‘a meaningful opportunity to present
a complete defense—such that the court may not ‘exclude competent, reliable,
1
Relevant to the issue of credibility is the fact that Clark never testified that she was averse to
group sexual activities or that she had never participated in them. On the contrary, she testified that she
may have engaged in exactly such activities with Gagne and Swathwood in the past. However, she testified
that she did not consent on the evening of July 3, 2000.
No. 07-1970 Gagne v. Booker Page 48
evidence. . . central to the defendant’s claim of innocence, . . . [i]n the absence of any
valid state justification.”’ Plur. Op. at 30. But the relevant holding of Crane was that
“the blanket exclusion of the proffered testimony about the circumstances of petitioner’s
confession deprived him of a fair trial.” Crane v. Kentucky, 476 U.S. 683, 690 (1986).
The Supreme Court rationalized this holding by explaining as follows:
That opportunity [to be heard] would be an empty one if the State were
permitted to exclude competent, reliable evidence bearing on the
credibility of a confession when such evidence is central to the
defendant’s claim of innocence. In the absence of any valid state
justification, exclusion of this kind of exculpatory evidence deprives a
defendant of the basic right to have the prosecutor’s case encounter and
survive the crucible of meaningful adversarial testing.
Id. at 690–91 (internal quotation marks and citation omitted). Mindful of this relevant
holding, the Supreme Court’s conclusion must be considered in light of the facts of that
particular case. The Supreme Court’s four-page decision in Crane concerned a
Kentucky procedural rule that disallowed evidence of the “voluntariness” of a confession
to be litigated at trial. Due to this rule, evidence of the highly coercive circumstances
of a 16-year old boy’s murder confession was not presented before a jury, where the
prosecution “rested almost entirely” on the confession. Id. at 685.
Contrary to the dissent, a federal court sitting in habeas should not conclude that
this analysis and holding “clearly establishes” that a defendant in a criminal sexual
assault case has a constitutional right to present hearsay evidence2 (that is, neither
“competent” nor “reliable”) bearing only on “predilections” (not credibility or
“innocence”) when such evidence is cumulative, perhaps irrelevant, and certainly not
impeaching (instead of “central”). See Bell v. Harrison, 670 F.2d 656, 658 (6th Cir.
1982) (finding that evidence of a rape victim’s past sexual behavior is neither a
determinative or reliable indicator of the victim’s consent to a specific act nor
constitutionally required to be admitted); see also Logan, 680 F.2d at 1123. And
furthermore, such a defendant’s right to present this hearsay evidence bearing on
2
There is no indication that Gagne was prepared to call Bermudez or his father to the stand, but
instead it appears that Gagne would have introduced the Bermudez evidence only through his testimony.
No. 07-1970 Gagne v. Booker Page 49
predilections survives even when the state does have a “valid state justification” for its
exclusion; and there is no “blanket exclusion” rule, but instead a discretionary, state law
evidentiary rule, held to be constitutionally valid by the Supreme Court. See Michigan
v. Lucas, 500 U.S. 145 (1991).
I therefore concur in the judgment, only, to reverse the district court.
No. 07-1970 Gagne v. Booker Page 50
________________________________________
CONCURRING IN THE JUDGMENT ONLY
________________________________________
HELENE N. WHITE, Circuit Judge, concurring in the judgment only. I concur
in the ultimate determination to reverse the district court’s grant of habeas relief.
Unlike the plurality, I do not reject the dissent’s legal analysis and find its
application of clearly established law sound based on the record as it interprets it. If the
record is not so interpreted, however, the excluded evidence ceases to have the crucial
significance necessary to support the conclusion that Gagne was denied his constitutional
rights to confront witnesses against him and present a defense. Although I find the
dissent’s interpretation of the record reasonable, I do not think it is compelled. Because
I conclude that the record is also reasonably susceptible of the interpretation espoused
by Judge Moore, Op. Concurring in Judgment at 3-4, and believe that we must read it
in that manner under AEDPA, I concur in the judgment of reversal.
No. 07-1970 Gagne v. Booker Page 51
___________
DISSENT
___________
MARTIN, Circuit Judge, dissenting. I join Judge Kethledge in his dissent. I
write separately only to express my personal views on this case. I disagree with the
majority’s characterization of this case as one about the application of Michigan’s rape-
shield statute. I believe this case is instead about the standards for admission of
evidence.
The Michigan rape-shield statute is an important mechanism by which Michigan
protects victims of sexual assault. The question before us today, however, is not whether
the statute presents a legitimate state interest, which I believe it does. Michigan’s
interest in protecting victims of sexual assault is not at issue here. The issue is instead
purely evidentiary: whether an individual has met his evidentiary burden.
In a rape case, adult individuals should be allowed to introduce evidence of past
relevant behavior going towards whether the sexual act in question was consensual. The
language of Michigan’s rape-shield statute does not bar the admission of Lewis Gagne’s
proposed evidence of past similar consensual conduct involving himself, P.C.,1 and a
third individual, and an offer by P.C. to engage in an additional instance of such conduct.
I believe the probative value of this evidence outweighed the prejudice, and the
exclusion of this evidence violated Gagne’s constitutional rights. I am disappointed in
the majority’s decision to frame this evidentiary issue as a protection of Michigan’s rape-
shield statute.
1
At the request of Judge Griffin, the complainant’s initials have been used in lieu of her full name.
No. 07-1970 Gagne v. Booker Page 52
___________
DISSENT
___________
KETHLEDGE, Circuit Judge, dissenting. Even the State admitted, in oral
argument for this case, that the sexual conduct at issue here—rough, three-way sex
involving the complainant, the defendant, and another man—would appear “facially
coercive” to a jury. The charged conduct would appear that way, that is, unless the jury
was told that the complainant had consented to virtually identical conduct with Gagne
and another man just four weeks earlier, and had proposed the same thing to Gagne and
another man on a third occasion. Viewed in that context, conduct that at first seemed
facially coercive to the jury might not have seemed coercive at all, at least not on its
face. That is a critical difference in a rape trial in which the only issue was consent and
the stakes ran as high as 45 years in prison. Yet the state courts barred Gagne from
presenting evidence of these incidents on relevance grounds.
The logic of the State’s concession is that, as a practical matter, the burden was
on Gagne at trial to prove that the charged conduct was consensual. And so the question
presented by Gagne’s case is a narrow one: whether, in a trial where the charged
conduct is facially coercive and the only issue is consent, evidence that the complainant
had consented to the same kind of conduct with the defendant, only a handful of weeks
before, is indispensable to his defense. Under the Supreme Court’s caselaw—and by any
measure of fairness and common sense—the clear answer to that question is yes.
I.
At the outset, it is important to make clear what this case is not about. The State
and its amici argued in seeking rehearing, and continue to argue before the court en
banc, that a decision to affirm the district court’s issuance of the writ in this case would
“effectively abrogate every rape-shield law in this circuit.” Seldom in legal analysis is
an assertion so demonstrably false.
No. 07-1970 Gagne v. Booker Page 53
Begin with the fact that the State does not even venture to assert that Michigan’s
rape-shield statute (or any other) actually bars admission of the evidence at issue here.
There is a reason for that omission. The core of any rape-shield law is its proscription
against evidence of past sexual activity by the victim. But every one of those laws
contains an exception for evidence of the victim’s prior sexual activity with the
defendant. And that is precisely the kind of evidence at issue here. Michigan’s statute
excepts from its proscription “[e]vidence of the victim’s past sexual conduct with the
actor.” Mich. Comp. Laws § 750.520j(1)(a). Ohio’s statute does the same. See Ohio
Rev. Code § 2907.02(D) (excepting evidence of “the victim’s past sexual activity with
the offender”). So does the Tennessee rule. See Tenn. R. Evid. 412(c)(3) (allowing
admission of evidence if “sexual behavior was with the accused, on the issue of
consent”). The Kentucky rule affirmatively provides that “evidence of specific instances
of sexual behavior” between the alleged victim and defendant “is admissible” if offered
to prove consent and otherwise admissible under the rules. See Ky. R. Evid.
412(b)(1)(B) (emphasis added). The federal rule does the same. See Fed. R. Evid.
412(b)(1)(B).
And thus the State’s rhetoric runs into a reality of judging: it is hard to invalidate
a provision that does not even apply to the case at hand. It is harder still to invalidate
provisions that actually support the result reached in the case. Here, none of the rape-
shield statutes in our circuit would bar admission of the evidence at issue, and the federal
and Kentucky rules would affirmatively allow its admission. The State does not even
dispute the point. The conclusion that affirmance of the district court’s judgment would
not “invalidate” these statutes follows almost by mathematical proof.
The various arguments offered in support of the State’s position on rehearing, in
contrast, do not offer anything at all like mathematical proofs. What they offer is
scarecrow rhetoric. We are told, for example, that affirmance of the district court’s
judgment would deal the statutes a “serious blow,” and indeed would “call into question
the ordinary application of the rape-shield statute”—this, in a case where the statute’s
bar would not apply in the first place. The arguments’ driving impulse, it seems, is that
No. 07-1970 Gagne v. Booker Page 54
we ought to have a penumbra of inadmissibility around the zone of inadmissibility that
the rape-shield statutes actually prescribe—lest anyone ever infer that we undermine
those statutes in vindicating a defendant’s constitutional rights. The arguments’ premise,
fundamentally, is that certain statutory values are so important as to trump constitutional
ones. The premise is viable only to the extent it remains unstated. There is no rape-
defendant exception to the Constitution.
But the conflict the State posits is a false one. The dynamic between a
defendant’s constitutional rights and the interests served by the rape-shield laws is not
a zero-sum game. The laws themselves strike a balance between the important interests
they serve, on the one hand, and evidence critical to the defense, on the other. And thus
our concern for a defendant’s constitutional rights does not amount to a lack of concern
for the interests served by the rape-shield laws. We honor these laws when we respect
the balance they strike. It is the State’s position, and not ours, that imperils these laws,
by giving them a scope beyond their terms, and thus bringing them into conflict,
needlessly, with constitutional values.
Equally misdirected is the claim that a decision to affirm the district court would
trample upon the policies that animate these laws. The argument is that, in deeming the
evidence here indispensable, the district court indulged in forbidden inferences whose
eradication was a principal aim of these laws. But again the argument is let down by the
laws. Everyone agrees that these laws are supported by important state interests. (The
extent to which those interests are implicated in a particular case, as discussed below,
is another matter.) And yet, notwithstanding those important interests, every one of
these laws contains an exception for evidence of consensual sex with the defendant.
These laws must infer something very important about such evidence; and they do so
especially in cases—like this one—where consent itself is the issue. The rape-shield
laws are more nuanced than the State gives them credit for. The laws’ own inference is
that, in some cases, evidence of past consensual sex with the defendant is highly relevant
to the issue of consent in the incident giving rise to the charge. Here, the district court
No. 07-1970 Gagne v. Booker Page 55
merely concluded that this was such a case. In doing so, the district court did not
abrogate the policies reflected in these laws; it applied them.
II.
The State otherwise argues that the Michigan Court of Appeals’s decision in this
case falls within the latitude afforded a state court under AEDPA. As relevant here, the
statute limits habeas relief to cases where the state court’s decision “was 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). I am well-aware
that this standard is difficult to meet. But it is not impossible to meet; and it is met here.
A.
During his rape trial, Gagne sought to admit evidence that, “within 30 days of the
charged offense,” the complainant had engaged in three-way sex with Gagne and another
man, Ruben Bermudez, and that “the way that event took place is almost identical to the
way that the events charged in this case took place.” 1/2/01 Hearing Tr. at 18-19.
Gagne’s counsel stated that both Bermudez and Gagne himself would testify to that
effect. Gagne also sought to admit evidence that, within approximately two months of
the charged conduct, the complainant had proposed the same kind of conduct to Gagne
and his father. The trial court excluded all this evidence on grounds that it was more
prejudicial than probative.
In his direct appeal, Gagne claimed that the exclusion of this evidence violated
his procedural due-process right to present a complete defense and his Sixth Amendment
right to confront the witnesses against him. The Michigan Court of Appeals held that
these claims were meritless. The decisions of the Supreme Court of the United States
show otherwise.
No. 07-1970 Gagne v. Booker Page 56
B.
“Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity
to present a complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324 (2006)
(quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). At the same time, trial judges
must make “dozens, sometimes hundreds” of evidentiary decisions throughout the course
of a typical case; and “the Constitution leaves to the judges who must make these
decisions ‘wide latitude’ to exclude evidence that is ‘repetitive . . . , only marginally
relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.’”
Crane, 476 U.S. at 689-90 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986))
(alterations and omissions in original). The point of cases like Crane, however, is not
that this latitude exists. The point is that the Constitution places limits upon it.
1.
One case that marks out those limits is Chambers v. Mississippi, 410 U.S. 284
(1973). There, Leon Chambers had been charged in state court with the fatal shooting
of a police officer, Aaron Liberty. After Chambers had been charged, another man,
Gable McDonald, gave a sworn confession that he had shot the officer. But McDonald
repudiated his confession a month later, claiming that he had only made the confession
as part of a deal to share the proceeds of a lawsuit that Chambers allegedly planned to
bring as a result of Chambers’s own injuries in the melee in which the officer was killed.
The State proceeded with Chambers’s prosecution. His defense was that McDonald shot
Officer Liberty. At trial, the court allowed Chambers to admit some evidence in support
of that defense, including McDonald’s written confession, a witness’s testimony that he
saw McDonald shoot the officer, another witness’s testimony that he saw McDonald
with a gun after the shooting, and the testimony of a third witness who contradicted
McDonald’s alibi. But the trial court excluded testimony from three witnesses to the
effect that, in separate conversations with each of them, McDonald had confessed to the
No. 07-1970 Gagne v. Booker Page 57
killing. The court also refused to allow Chambers to cross-examine McDonald as an
adverse witness. The jury eventually convicted Chambers of murdering Officer Liberty.
Chambers argued in the Supreme Court that the trial court’s evidentiary decisions
had violated his procedural due-process right “to a fair opportunity to defend against the
State’s accusations.” Id. at 294. The State there appeared to respond much as the State
does here: trial courts have wide latitude to exclude evidence at trial; the court’s
decisions were based upon state evidentiary rules that serve important interests; and,
given the evidence that the trial court did admit, its decisions adverse to Chambers did
not render his trial fundamentally unfair.
The Supreme Court rejected the State’s arguments. The Court said that “[t]he
rights to confront and cross-examine witnesses and to call witnesses in one’s own behalf
have long been recognized as essential to due process.” Id. The Court described these
two rights—confrontation and calling witnesses—in similar terms. Although the right
to confront and cross-examine is “essential and fundamental” to a fair trial, the Court
said, the right “may, in appropriate cases, bow to accommodate other legitimate interests
in the criminal trial process.” Id. at 295. But the right’s “denial or significant
diminution calls into question the ultimate integrity of the fact-finding process and
requires that the competing interest be closely examined.” Id. (internal punctuation
omitted). Similarly, the Court said that “[f]ew rights are more fundamental than that of
an accused to present witnesses in his own defense.” Id. at 302. And so the Court took
a close look at the competing interests with respect to that right as well. Id.
In gauging these interests, the Court delivered a notably realistic assessment of
how Chambers’s ability to defend himself was affected by the trial court’s decisions in
his case. The Court observed that the trial boiled down to a credibility contest between
Chambers and McDonald, since, “in the circumstances of this case, McDonald’s
retraction [of his confession] inculpated Chambers to the same extent that it exculpated
McDonald.” Id. at 297. And in that contest Chambers was significantly, though by no
means totally, disabled. His “predicament” as a result of the trial court’s rulings, the
Court said, was that “he was unable either to cross-examine McDonald or to present
No. 07-1970 Gagne v. Booker Page 58
witnesses in his own behalf who would have discredited McDonald’s repudiation and
demonstrated his complicity.” Id. at 294. It was true, the Court said, that the evidence
admitted at trial—McDonald’s written confession, testimony from one witness
contradicting McDonald’s alibi, testimony from another who said he had seen McDonald
shoot the officer first-hand—had “chipped away” at McDonald’s credibility. Id. Thus
the State argued in effect—just as the amici States argue here—that the trial court had
split the difference, and that the Court ought to leave things where they were. But the
Supreme Court chose not to decide the case upon a mere recitation of platitudes. It
instead took a careful look at all of the evidence, admitted and excluded alike, and
analyzed impartially the effect of the trial court’s decisions upon the dynamic at trial.
Its conclusion was based upon common sense: “Chambers’ defense was far less
persuasive than it might have been had he been given an opportunity to subject
McDonald’s statements to cross-examination or had the other confessions been
admitted.” Id.
Against these interests, the Court weighed the State’s interests in support of the
trial court’s decisions. The trial court had excluded McDonald’s confessions to the three
witnesses on hearsay grounds. As a generic matter, the Court recognized, the interests
supporting that rule are significant: “perhaps no rule of evidence has been more
respected or more frequently applied in jury trials than that applicable to the exclusion
of hearsay[.]” Id. at 302. But the court did not weigh those interests generically; it
weighed them “under the facts and circumstances of this case[.]” Id. at 303. And having
done so, the Court determined that the interests supporting exclusion of the three
confessions were slight, primarily because the confessions themselves were
trustworthy—again in light of the particular facts and circumstances of Chambers’s case.
Id. at 302.
The Court likewise made short work of the trial court’s decision to bar Chambers
from examining McDonald as an adverse witness, which had been based on
Mississippi’s “voucher rule.” Id. at 295-96. Again looking at the specific facts of his
case, the Court said that “McDonald’s testimony was in fact seriously adverse to
No. 07-1970 Gagne v. Booker Page 59
Chambers[,]” regardless of who put McDonald on the stand. Id. at 297. Thus, the Court
held, “[t]he ‘voucher’ rule, as applied in this case, plainly interfered with Chambers’
right to defend against the State’s charges.” Id. at 298. The Court concluded: “the
exclusion of this critical evidence, coupled with the State’s refusal to permit Chambers
to cross-examine McDonald, denied him a trial in accord with traditional and
fundamental standards of due process.” Id. at 302.
a.
The parallels here are not hard to discern. This case too boiled down to a
credibility contest between the defendant and another witness. In this case too the
defendant was allowed to admit some of the evidence he proffered at trial—specifically,
testimony concerning the so-called “Tony’s Lounge” incident, which was a five-way
orgy in which the complainant consensually participated, and which the State and the
Michigan Court of Appeals said was an adequate substitute for the three-way evidence
that the trial court excluded. (To be clear, however, the record indicates that this
incident was actually a room full of two-way sex, during which the complainant engaged
in sex with Gagne and Swathwood sequentially rather than at the same time, see Joint
App’x at 43-46; and, as shown below, the State itself characterized the incident as
sequential two-way sex in its closing argument to the jury.) The issue here, then, is no
different from the issue in Chambers: Whether the excluded evidence lost its “critical”
nature in light of the evidence that the trial court did admit. That, I suggest, is the nub
of this appeal.
The issue, in terms specific to this case, is whether the admission of the Tony’s
Lounge evidence rendered the prior three-way incidents merely “cumulative[,]” as the
State now argues, rather than critical. But on this issue the State has virtually made
Gagne’s case for him. To do more than “chip[] away” at the State’s case against him,
Chambers, 410 U.S. at 294, Gagne had to do more than demonstrate the complainant’s
willingness to engage in sequential sex with Gagne and another man. Instead, he had to
demonstrate the complainant’s willingness specifically to engage in the kind of facially
coercive three-way sex (with Gagne) involved in the charged incident. This distinction
No. 07-1970 Gagne v. Booker Page 60
has been the prosecution’s battering ram throughout this litigation. Consider, for
example, how in closing argument the prosecution itself distinguished the Tony’s
Lounge incident from the charged conduct in this case:
That situation [the Tony’s Lounge incident] did not involve, ladies and
gentlemen, two men. That situation did not involve penetration of her
anus multiple times, her vagina, multiple times, and oral sex multiple
times. It did not involve physical abuse, which is what is charged here,
and what the physical and testimonial evidence show occurred.
2/5/01 Trial Tr. at 12-13 (emphasis added).
To which I would say: Precisely. The Tony’s Lounge evidence was not a fair
substitute for the excluded evidence precisely because of the very distinctions called out
by the prosecution in seeking (and obtaining) a conviction in this case. That the
complainant would engage in comparatively benign sequential sex in the Tony’s Lounge
incident does not come close to refuting the prosecution’s argument that she would not
consent to what the State itself calls the “brutal” three-way sex at issue here. State’s
Supp. Br. at 12. To offer some bland assurance to the contrary is to ignore reality, and
to apply the Constitution’s principles to a fairyland trial rather than the trial that actually
occurred.
The State makes this point even more emphatically in its supplemental brief to
this court—albeit inadvertently. The State argues:
[T]he dissimilarity between the charged act and the prior excluded acts
cannot be emphasized enough because of the violent nature of the
rape. . . . [T]here is no evidence that the alleged threesome with
Bermudez involved the type of sexual activity or the type of brutality that
the charged incident involved. There was no offer of proof that [the
complainant] engaged in anal sex, that she allowed a bottle to be inserted
in her rectum and vagina, that she allowed a whip to be used, or that she
allowed or enjoyed being hit in the buttocks. There is nothing in the
excluded evidence that indicates she would consent to the brutal sex that
took place on the night of the charged incident. Thus, it is only
minimally relevant.
No. 07-1970 Gagne v. Booker Page 61
State’s Supp. Br. at 12 (emphasis added). The major premise of the State’s argument
here, as with its closing argument at trial, is that the complainant’s participation in non-
brutal sex—such as the Tony’s Lounge incident—is “only minimally relevant” to
whether she would have consented to “the brutal sex that took place on the night of the
charged incident.” (More on that below.) The argument’s minor premise is that the
Gagne-Bermudez incident was not brutal in the ways that the charged incident was.
Thus, the State concludes, the Gagne-Bermudez incident was “only minimally relevant.”
The problem with the State’s syllogism is that it has its facts wrong. Gagne’s
counsel stated that Gagne and Bermudez were each ready to testify that their three-way
sex with the complainant—less than 30 days before the charged incident—was “almost
identical to the way that the events charged in this case took place.” See 1/2/01 Hearing
Tr. at 18-19 (emphasis added); see also id. at 19 (noting that the prior incident was
“nearly identical in most regards”) (emphasis added).1 Non-brutal three-way sex is not
“almost identical” or “nearly identical” to brutal three-way sex. And thus it is simply
not an accurate reading of the record to say that the Bermudez incident, as described in
the proffer, was less brutal than the charged incident.
Moreover, Gagne’s counsel stated in a Motion for Reconsideration that, when the
excluded testimony is considered “in conjunction” with the evidence that the court did
admit (including testimony relating to the use of sex objects, such as the whip and blue
champagne bottle), the Bermudez incident “establish[es] as clear a pattern as can be
imagined which is similar to what is alleged here as non-consensual conduct.” R. 23-4
at 20 (emphasis added). The trial court did admit testimony that the complainant had
used the whip and bottle during sex generally; but the true power of that testimony
comes from its combination (or “conjunction”) with the excluded testimony regarding
the Bermudez incident—which then could have been shown to have been “almost
1
At the prosecution’s request, the parties stipulated to paraphrase these points during the hearing,
because otherwise, the prosecution said, it would move to clear the courtroom. See id. at 16-17. We
therefore should not hold against Gagne the fact that his lawyer did not enumerate the rough details that
the State enumerated in the passage excerpted above from its brief.
No. 07-1970 Gagne v. Booker Page 62
identical to the events charged in this case.” The State simply overlooks these aspects
of the record in its brief.
And so the State should reap the whirlwind here. It is undisputed that evidence
of the complainant’s consent to non-brutal sex was only minimally relevant to Gagne’s
ability to defend himself at trial. The Tony’s Lounge evidence was precisely that. Per
the State’s own arguments, that evidence was no substitute for the evidence that the trial
court excluded in this case.
It follows that the excluded evidence was “critical” to Gagne’s defense.
Chambers, 410 U.S. at 302. What Gagne faced was a theory of res ipsa loquitur as
applied to a rape case: the brutal and facially coercive nature of the charged conduct
spoke for itself at trial, to the effect that the conduct was not consensual. That
undisputed fact severely disadvantaged Gagne in the credibility contest upon which his
trial turned. His only chance of defending himself was to admit evidence that the
complainant had consented to in one instance, and proposed in another, almost identical
conduct with Gagne and another man—and moreover that the complainant had done so
just weeks before the charged conduct here. Absent this evidence, Gagne’s “defense was
far less persuasive than it might have been had he been given an opportunity” to admit
this evidence and then cross-examine the complainant on the basis of it. Id. at 294. That
parallel with Chambers, I think, cannot be seriously disputed. Indeed I think that Leon
Chambers was better off in his trial than Gagne was in his—since in Chambers’s
credibility contest he at least had McDonald’s written confession and a witness’s first-
hand testimony that McDonald had done the shooting. Gagne, by comparison, had next
to nothing at all.
The only evidence with which Gagne could realistically defend
himself—evidence, I might add, that suggests a substantial possibility that he is
innocent—was the evidence that the trial court excluded. Even when viewed
deferentially, the court’s decision to strip that evidence out of the case “plainly interfered
with [Gagne’s] right to defend against the State’s charges.” Id. at 298. What was left
No. 07-1970 Gagne v. Booker Page 63
was an empty husk of a trial—at whose conclusion came a prison sentence of up to 45
years.
b.
Chambers instructs that we must look at not only the interests supporting
admission of Gagne’s evidence, but also the interests supporting its exclusion. I begin
with the rationale offered by the Michigan Court of Appeals for the exclusion of Gagne’s
evidence. That court did not even discuss federal constitutional law in rejecting Gagne’s
claim that the exclusion of the subject evidence violated his due-process right to present
a complete defense. What the court did say was that “the complainant’s willing
participation” in the Gagne-Bermudez three-way was “not probative” of whether she
willingly participated in the Gagne-Swathwood three-way (the charged conduct) four
weeks later, because “the threesome involving Bermudez occurred while the
complainant and Gagne were still dating.” Mich. Ct. App. Op. at 3. (Apparently they
broke up a week or two later.) The court also noted that the third participant in the
charged conduct was “Swathwood, not Bermudez.” Id. The court held that evidence of
the complainant’s proposed three-way with Gagne and his father was “not relevant” for
essentially the same reasons.
As an initial matter, none of this reasoning makes much sense even on its own
terms. That the complainant and Gagne were “dating” at the time of the Gagne-
Bermudez incident and the Gagne-Gagne, Sr., proposal is not a serious reason to
distinguish those events, for purposes of the complainant’s consent, from the Gagne-
Swathwood incident four weeks later. The court of appeals’s assumption, apparently,
was that the complainant and Gagne were less likely to engage in consensual sex once
their relationship had ended. Generically, that assumption might make sense. On this
record, it does not—because the assumption is affirmatively refuted by the undisputed
fact that the charged incident began with consensual oral sex between the complainant
and Gagne.
Nor is there any basis to distinguish the excluded incidents from the charged one
on the ground that the excluded incidents involved Bermudez and Gagne, Sr.,
No. 07-1970 Gagne v. Booker Page 64
respectively, whereas the charged one involved Swathwood. Here the court’s
assumption, apparently, was that the complainant was for some reason more willing to
consent to group sex with Bermudez or Gagne, Sr., as the third participant, than she was
with Swathwood. The court cited no basis for that assumption. And again the record
refutes it, since the complainant undisputedly engaged in consensual sex with
Swathwood during the Tony’s Lounge incident. Thus, even when viewed deferentially,
none of this reasoning describes an interest remotely as significant as Gagne’s interest
in defending himself at trial.
But the State suggests that other interests lurk in this appeal. The interests are
those advanced by Michigan’s rape-shield law. As a generic matter, I entirely agree that
Michigan’s rape-shield law (like the hearsay rule in Chambers) protects important state
interests in the vast majority of cases in which it is implicated. We cast no aspersion
upon that law when we say that a defendant was denied a fair trial in a case in which the
law’s proscription does not even apply. But more to the point: Chambers makes clear,
as discussed above, that the interests supporting exclusion of Gagne’s evidence must be
assessed not generically, but rather in light of “the circumstances of this case.” 410 U.S.
at 297.
In this trial, I respectfully submit, there was virtually nothing left for the rape-
shield statute to protect. As an initial matter, this case only weakly implicates the
interests protected by the statute, since the statute’s terms did not even bar the excluded
testimony, but instead left its admission to the discretion of the Ingham County Circuit
Judge. See Mich. Comp. Laws § 750.520j(1)(a). And it is hard to see what was left of
those interests, such as they were in this case, given the evidence of sexual activity
(albeit non-brutal) and drug use that was admitted at trial. The only sense in which
Gagne’s evidence was “cumulative,” I submit, was as to whether its admission in this
trial would have diminished those interests any further.
And so we must decide whether the court of appeals’s decision in this case
reflects an unreasonable application of Chambers. For all the reasons described
above—the palpably indispensable nature of this evidence to Gagne’s defense, the
No. 07-1970 Gagne v. Booker Page 65
minimal interests supporting its exclusion in the circumstances of this case, and the
State’s own arguments as to why the Tony’s Lounge evidence was no substitute—I do
not think that “fairminded jurists” could conclude that the state court’s decision here was
consistent with Chambers. See generally Harrington v. Richter, 131 S. Ct. 770, 786
(2011). Indeed I submit that the state court’s decision was worse than an unreasonable
application; it was arguably “contrary to” Chambers. See 28 U.S.C. § 2254(d)(1). A
state court’s decision is contrary to Supreme Court precedent if the state court
“‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a’” different result. Price v. Vincent, 538
U.S. 634, 640 (2003) (citation omitted). Aside from the nature of the offenses, this case
is indistinguishable from Chambers: Both state courts relied on flimsy evidentiary
rationales to exclude evidence that was critical to resolving a credibility dispute, all on
the mistaken theory that the defendant was allowed to introduce some similar evidence
in his defense.
Even genuine deference has its limits. They were passed here. Chambers
requires issuance of the writ in this case.
2.
The Supreme Court’s decision in Crane v. Kentucky, 476 U.S. 683 (1986),
confirms that conclusion. Like Chambers, Crane requires consideration of two factors
in determining whether the exclusion of evidence denies a defendant the right to present
a complete defense. The first is the extent to which the evidence was “central to the
defendant’s claim of innocence.” Id. at 690. The second is the extent to which its
exclusion was supported by a “valid state justification[.]” Id.
In Crane, the defendant was convicted of murder. He was 16 years old at the
time of the crime. There was “no physical evidence to link him” to the murder. Id. at
691. The State’s evidence of guilt was primarily Crane’s own confession. Crane sought
to discredit the confession with testimony that “he had been detained in a windowless
room for a protracted period of time, that he had been surrounded by as many as six
police officers during the interrogation, that he had repeatedly requested and been denied
No. 07-1970 Gagne v. Booker Page 66
permission to telephone his mother, and that he had been badgered into making a false
confession.” Id. at 685. That evidence, the Supreme Court said, was “highly relevant”
to the reliability and credibility of the confession, which again was the State’s primary
evidence of guilt. Id. at 691. And the Court saw no justification for excluding the
evidence under the circumstances presented there. The Court held, unanimously, that
the exclusion of Crane’s testimony violated his right to present a complete defense.
The analysis flows in the same channels here. In both Crane and this case, the
excluded evidence was “central to the defendant’s claim of innocence.” Id. at 690. The
excluded evidence was central in each case because the cases themselves were alike in
a critical respect: given the res ipsa nature of the prosecution’s evidence—a confession
there, the facially coercive nature of the charged conduct here—the burden was on the
defendant, as a practical matter, to demonstrate his innocence at trial. The Supreme
Court described Crane’s predicament as follows: “[S]tripped of the power to describe
to the jury the circumstances that prompted his confession, the defendant is effectively
disabled from answering the one question every rational juror needs answered: If the
defendant is innocent, why did he previously admit his guilt?” Id. at 689. The
dynamics of Gagne’s trial were no different: stripped of the ability to introduce evidence
that the complainant had consented to brutal three-way sex in the recent past, Gagne was
effectively disabled from demonstrating to the jury that she had consented to nearly
identical brutal sex in the charged incident.
In both this case and Crane, the excluded evidence was indispensable to the
defendant’s ability to demonstrate his innocence. And in each case the State’s interests
in excluding the evidence were minimal. Thus, for essentially the same reasons already
discussed with respect to Chambers, Crane supports issuance of the writ in this case.
3.
The Supreme Court’s decision in Olden v. Kentucky, 488 U.S. 227 (1988) (per
curiam), is significant for purposes of Gagne’s claim under the Confrontation Clause.
Like this case, Olden was a rape case. There, the complainant had been drinking at a
local bar with James Olden and his co-defendant, Charlie Ray Harris. The three of them
No. 07-1970 Gagne v. Booker Page 67
left the bar in Harris’s car. The complainant later told police that Harris had stopped the
car at some location and held her down as Olden raped her at knife-point. She said that
Harris and Olden then drove her to a dump, where two other men joined them and Olden
raped her again. Finally, Harris dropped off the complainant near the home of Bill
Russell, with whom she was then having an extramarital affair. Russell emerged from
his home as the complainant stepped out of Harris’s car. She immediately told him that
she had been raped by Olden and Harris.
At trial, Olden and Harris “asserted a defense of consent.” Id. at 229.
Specifically, they claimed that the complainant had engaged in consensual sex with them
and then “concocted the rape story to protect her relationship with Russell, who would
have grown suspicious upon seeing her disembark from Harris’ car” in the early-morning
hours. Id. at 230. At trial, two other men testified that they had joined the group after
the alleged rape occurred, and that the complainant “did not appear upset.” Id. at 229.
One of those witnesses also testified that the complainant had approached him at the bar
that evening and said “that she was looking for a black man with whom to have sex.”
Id. (The defendants in Olden were black.) A third “independent witness” also testified
that “he had seen [the complainant], Harris, and [Olden] at a store called Big O’s on the
evening in question, that a policeman was in the store at the time,” and that the
complainant had “made no attempt to signal for assistance.” Id. When the complainant
herself testified at trial, Olden’s counsel cross-examined her concerning “a number of
inconsistencies in [her] various accounts of the alleged crime.” Id. at 228. Specifically,
the complainant “originally told the police that she had been raped by four men.” Id.
Later, she claimed that only Olden and Harris had raped her; and at trial, “she contended
that [Olden] was the sole rapist.” Id. In addition, “while [the complainant] testified at
trial that [Olden] had threatened her with a knife, she had not previously alleged that [he]
had been armed.” Id.
But the trial court barred Olden from cross-examining the complainant with one
piece of evidence in particular: the fact that she was living with Russell at the time of
trial. Olden contended at trial that evidence of their cohabitation was “crucial” to
No. 07-1970 Gagne v. Booker Page 68
Olden’s efforts to demonstrate the complainant’s “motive to lie[.]” Id. at 230. But the
trial court “granted the prosecutor’s motion in limine to keep all evidence of [the
complainant’s] and Russell’s living arrangement from the jury.” Id. Olden was
thereafter convicted of forcible sodomy and sentenced to 10 years in prison.
The Kentucky Court of Appeals affirmed, holding that the cohabitation evidence
was properly excluded. Its reasoning marked the path of the trial court’s reasoning in
excluding Gagne’s evidence here. Specifically, the Kentucky court held that the
cohabitation evidence “was not barred by the State’s rape shield law[,]” but that “its
probative value was outweighed by its possibility for prejudice.” Id. (internal
punctuation and alterations omitted). The court went on to say that the cohabitation
evidence could “have created extreme prejudice against [the complainant]” with the jury,
because she “was white and Russell was black.” Id. at 231 (internal punctuation
omitted).
The Supreme Court summarily reversed, holding that “[t]he Kentucky Court of
Appeals failed to accord proper weight to [Olden’s] Sixth Amendment right to be
confronted with the witnesses against him.” Id. (internal punctuation omitted). “That
right,” the Court made clear, “includes the right to conduct reasonable cross-
examination.” Id. The right was violated in Olden’s case, the Court reasoned, because
“‘[i]t is plain to us that ‘a reasonable jury might have received a significantly different
impression of the witness’ credibility had defense counsel been permitted to pursue his
proposed line of cross-examination.’” Id. at 232 (quoting Van Arsdall, 475 U.S. at 680)
(internal alterations omitted).
Again the parallels here are not hard to discern. In both cases the charge was
rape. Both cases boiled down to a credibility contest in which the sole issue was
consent. In both cases the complainant’s “testimony was central, indeed crucial, to the
prosecution’s case.” Id. at 233. In both cases the defendant sought to impeach the
complainant’s testimony with evidence that the state courts chose to exclude. In both
cases the state courts held that the evidence was not barred by the State’s rape-shield
No. 07-1970 Gagne v. Booker Page 69
law, but that it was more prejudicial than probative. And in both cases the defendant was
permitted to cross-examine the complainant based upon other evidence in the case.
Thus, in this case, the Michigan Court of Appeals confronted a “‘set of facts that
are materially indistinguishable from’” a decision of the Supreme Court, namely Olden.
Price, 538 U.S. at 640 (citation omitted). Yet the Michigan Court of Appeals “‘arrive[d]
at a [different] result,’” id., than the Supreme Court did. In doing so, the Michigan court
reasoned that, “in light of the other evidence of the complainant’s past sexual conduct
that the trial court did admit, we reject defendants’ argument that their rights of
confrontation compelled the admission of this evidence[.]” Mich. Ct. App. Op. at 4. The
court then went on to say that the jury had “heard about” the Tony’s Lounge incident and
that the subject incident began with consensual oral sex between the complainant and
Gagne.
The “other evidence” cited by the Michigan court does not even begin to
distinguish this case from Olden. The Tony’s Lounge incident was only minimally
helpful to Gagne’s defense, as shown above. The same is true for the consensual oral
sex at the beginning of the charged incident, since that sex too was not “brutal” or
facially coercive. Olden’s impeachment evidence looks stronger by comparison: it
included the numerous changes in the complainant’s own account of the incident, plus
the testimony of three witnesses—one of whom was unconnected with the parties to the
case, and all of whom corroborated Olden’s account and contradicted that of the
complainant. In credibility contests in which the issue was consent, Olden held a
markedly better hand than Gagne did. And otherwise I think it nearly indisputable that
the evidence excluded in Gagne’s case was just as important to his defense, if not more
so, than the evidence excluded in Olden’s case was.
For all of these reasons, I do not think that “fair minded jurists” (which I use only
as a term of art here) could reconcile the Michigan Court of Appeals’s reasoning with
that of the Supreme Court in Olden. In this case, as in Olden, it is plain that “‘a
reasonable jury might have received a significantly different impression of the
[complainant’s] credibility had defense counsel been permitted to pursue his proposed
No. 07-1970 Gagne v. Booker Page 70
line of cross-examination.’” Olden, 488 U.S. at 232 (citation and internal alterations
omitted). Indeed, as noted above, the way the trials proceeded in each case was so
similar that the Michigan court’s decision was arguably “contrary to” the Supreme
Court’s decision in Olden.2 See 28 U.S.C. § 2254(d). But in any event the Michigan
court’s decision was an unreasonable application of Olden; and that is enough to require
issuance of the writ.
* * *
In this case, as in Chambers, a decision to grant relief would “establish no new
principles of constitutional law.” 410 U.S. at 302. It would only require us to apply
long-established principles in a specific context in which the Supreme Court has already
told us they apply. In Michigan v. Lucas, 500 U.S. 145 (1991), the Court said that the
exclusion of the specific kind of evidence at issue here—evidence of past consensual sex
between a rape defendant and the complainant—“unquestionably implicates the Sixth
Amendment” and “diminishe[s]” the defendant’s rights “to confront adverse witnesses
and present a defense[.]” Id. at 149. Whether the diminution of those rights amounts to
a violation of them, of course, depends “on the facts of th[e] case[.]” Id. at 153.
Gagne’s rights were violated on the facts of this case. The Michigan courts
unreasonably applied the Supreme Court’s precedents in holding the contrary. I
respectfully dissent.
2
The plurality opinion is incorrect in its assertion that I have adopted an interpretation of
“contrary to” that would find the standard met when “the state-court decision [was] simply erroneous or
wrong.” Williams v. Taylor, 529 U.S. 362, 389 (2000) (Stevens, J., dissenting) (internal punctuation
omitted). What I have tried to do, rather, is to analyze the factual and legal parallels between Olden and
Chambers, on the one hand, and this case on the other—a task that the plurality does not even attempt.
It is those parallels, and not a sense that the state court of appeals’s decision was “simply wrong,” that
underlie my conclusion that the state court’s decision was arguably contrary to the relevant Supreme Court
decisions (and more certainly an unreasonable application of them). The plurality, for its part, does little
more than announce that the state court’s reasons were “legitimate”—which amounts to an assertion that
the state court’s decision was simply right.