United States Court of Appeals
For the First Circuit
Nos. 01-1304, 01-1369
JOHNNY STEPHENS,
Petitioner, Appellee/Cross-Appellant,
v.
TIMOTHY HALL,
Respondent, Appellant/Cross-Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, Senior U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
John Salsberg, with whom Michael R. Schneider and Salsberg &
Schneider were on brief, for appellant/cross-appellee.
William J. Meade, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, was on brief, for appellee/cross-
appellant.
June 28, 2002
LIPEZ, Circuit Judge. Johnny Stephens was convicted by
a Massachusetts jury of unarmed robbery and assault and battery
with a dangerous weapon. On appeal, he argued that his right to
effective assistance of counsel was violated when his trial counsel
neglected to cross-examine the alleged victim as to her prior
convictions and pending criminal charges, and that the trial court
violated his rights under the Confrontation Clause when it refused
to allow counsel to recall the victim for further cross-
examination. The Massachusetts Appeals Court rejected both claims
and affirmed Stephens's conviction. Commonwealth v. Stephens, 693
N.E.2d 717 (Mass. App. Ct. 1998) (Stephens I). The Supreme
Judicial Court denied further review.
Stephens then filed a petition for habeas corpus under 28
U.S.C. § 2254, again alleging violations of his rights to effective
assistance of counsel and to confront adverse witnesses. The
district court rejected the Confrontation Clause claim, but agreed
that Stephens had received ineffective assistance of counsel.
Stephens v. Hall, No. Civ. A. 99-12104-MEL, 2001 WL 92269 (D. Mass.
Jan. 24, 2001) (Stephens II). It concluded further that the
Appeals Court's decision to the contrary was an unreasonable
application of federal law, and ordered a new trial for Stephens.
See 28 U.S.C. § 2254(d)(1). The Commonwealth appeals from that
judgment. Stephens cross-appeals from the district court's
rejection of his claim under the Confrontation Clause. We affirm
the latter judgment, but reverse the district court's issuance of
the writ on the ineffective assistance of counsel claim.
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I. BACKGROUND
On October 22, 1992, at approximately 7:30 p.m., Eleanor
Washington staggered into a police station in the Roxbury section
of Boston bruised and bleeding. She claimed to have been robbed by
two men, one of whom she referred to as "Johnny." She later told
police that her assailants were named Johnny Stephens and Kevin
Walker, and identified both men from police photographs. She also
added that Stephens had threatened her with a gun during the
robbery.
Stephens and Walker soon were arrested, and charged with
armed robbery and assault and battery with a dangerous weapon
(namely, their boots). They were tried together in October, 1993.
Washington was the government's star witness, and her testimony was
damning. She described the robbery and assault in detail,
explaining how Stephens hit her until she fell to the ground, and
then kicked her repeatedly. Washington identified Stephens and
Walker in the courtroom, stating that she had "no doubt" that they
were the men who attacked her.
On cross-examination, Stephens's counsel attempted to
impeach Washington's credibility by pointing out inconsistencies
between her trial testimony and the statements she made to the
police immediately after the assault. That strategy was
frustrated, however, by Washington's insistence that she lost
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consciousness during the beating, and could not remember anything
prior to waking up in the hospital.1
Defense counsel also had prepared a second avenue of
attack. Washington had several prior convictions: a 1992
conviction for possession of cocaine and two 1987 convictions for
uttering a forged instrument and receiving stolen property. In
addition, at the time of the alleged robbery, charges were pending
against her in a different county for possession of a hypodermic
needle and possession of a firearm. Both cases were adjudicated
early in 1993, less than a month after Washington's grand jury
testimony in the case against Stephens. She was convicted of the
charges for possession of a hypodermic needle, but acquitted on the
firearms charge.
According to his notes made in anticipation of trial,2
Stephens's attorney planned to question Washington extensively
about her criminal history. His questions were designed to suggest
that Washington had been treated leniently on the pending charges
as a result of her allegations, and grand jury testimony, against
Stephens. More generally, counsel hoped to show that Washington
was savvy about the criminal justice system and therefore would
1
As counsel acknowledged at side bar, Washington was an
effective witness on cross-examination:
THE COURT: This lady is a lot better witness than many of my
plaintiffs. This lady picks up a little steam on cross-
examination.
Mr. OSLER [Stephens's counsel]: Yeah. Don't rub it in.
2
Stephens's attorney submitted copies of those notes to
substantiate Stephens's claim that his failure to cross-examine
Washington about her criminal history was a mistake rather than
part of counsel's trial strategy.
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have had no trouble fabricating or embellishing charges. Finally,
Washington's prior convictions could have been used to assail her
credibility as a witness.
Stephens's counsel never pursued that line of
questioning, however, because he forgot to bring his notes
regarding Washington's criminal history to the podium when he began
cross-examination. Thus, when he reviewed his notes at the end of
questioning, he believed (mistakenly) that he had not omitted
anything. That evening, he remembered that he had meant to
question Washington as to her prior convictions and pending
charges.
On the next day of trial, Stephens's counsel sought
permission to recall Washington so that he could reopen his cross-
examination. The court, distrustful of counsel's claim that the
omission was a simple mistake rather than a strategic ploy, denied
the request.3 Nevertheless, the judge indicated that he would
permit Stephens to call Washington as his own witness. If Stephens
had done so, he arguably could have questioned Washington on pro-
prosecution bias and thus gotten into evidence the pending charges
on the theory that Washington wished to curry favor with the
government. It is unlikely that he could have gotten into evidence
the prior convictions, as one may not impeach one's own witness
3
The court also expressed concern that "in any criminal case,
if the defendant wishes to get another crack at the victim, another
shot at a victim, another chance to cross-examine the victim, they
could always file an affidavit and ask that person to be called as
the last witness, or whatever it is, under threat that it may be
incompetency of counsel. I think that would be an awful bad
precedent to start . . . ."
-5-
with such evidence. See Mass. Gen. Laws ch. 233, § 23 (forbidding
impeachment of party's own witness with evidence of bad character);
Commonwealth v. Arsenault, 280 N.E.2d 129, 137 (Mass. 1972) (noting
that prior convictions usually are used to prove bad character).
Defense counsel decided not to recall Washington as a
witness in Stephens's case, and the jury never learned of her
criminal history. However, counsel was able to impeach her
credibility by other means. Through cross-examination of other
government witnesses, Stephens's counsel exposed certain
inconsistencies in Washington's story of the alleged robbery. For
example, the jury learned that Washington had not mentioned a gun
when she was interviewed at the police station on the night of the
alleged robbery, nor when she first described the incident to the
detective assigned to the case. Similarly, government witnesses
conceded that Washington originally had indicated that the robbery
and beating took place inside the hallway of a building, although
she later placed the incident in an outside courtyard.
Washington's description of her assailants also took on more detail
in the days following the assault.
In his closing argument, Stephens's counsel argued that
the inconsistencies in Washington's story were sufficient to create
a reasonable doubt as to whether Washington was lying about the
defendants' role in the beating, and about the robbery itself.
Unpersuaded, the jurors returned a verdict finding both Stephens
and Walker guilty of assault with a dangerous weapon. The jury
also found both men guilty of unarmed robbery, acquitting them of
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the more serious charge of armed robbery. Stephens was sentenced
to a term of 25 to 40 years for the unarmed robbery, and a
concurrent term of nine and one-half years to ten years for the
assault.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Stephens argues that counsel's failure to cross-examine
Washington regarding her prior convictions and pending charges
violated his right to effective assistance of counsel. Under the
well-known test set out in Strickland v. Washington, 466 U.S. 668
(1984), he must show, first, that counsel's representation fell
below an objective standard of reasonableness, based on prevailing
professional norms. See id. at 688-90. Second, Stephens must
demonstrate that the identified acts or omissions prejudiced his
defense. That is, he must establish "a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. "A reasonable
probability is a probability sufficient to undermine confidence in
the outcome." Id.
Massachusetts courts observe a similar standard when
assessing claims under the state constitution. Specifically, the
defendant must show that his attorney's conduct fell "measurably
below that which might be expected from an ordinary, fallible
lawyer," and that, as a result of counsel's errors, he was "likely
deprived . . . of an otherwise available, substantial ground of
defen[s]e." Commonwealth v. Saferian, 315 N.E.2d 878, 883 (Mass.
1974). We have concluded elsewhere that "[t]he standard for
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ineffective assistance under Massachusetts law appears functionally
equivalent to the federal standard." Phoenix v. Matesanz, 189 F.3d
20, 27 n.4 (1st Cir. 1999); accord Ouber v. Guarino, No. 01-2390,
2002 WL 1290413, at *13 (1st Cir. June 17, 2002) (observing that,
"for habeas purposes, Saferian is the functional equivalent of
Strickland"). Accordingly, in discussing Stephens's claim, we do
not differentiate between the two standards.
A. The State Court's Decision
The Massachusetts Appeals Court affirmed Stephens's
conviction on direct review, rejecting his claim of ineffective
assistance of counsel. The court assumed, without deciding, that
counsel's failure to cross-examine Washington as to her criminal
history was objectively unreasonable under the "performance" prong
of the test for ineffective assistance. Stephens I, 693 N.E.2d at
720. It concluded, however, that Stephens had "failed to
demonstrate that better work would have made a difference in the
jury's decision." Id. (citing Commonwealth v. Satterfield, 364
N.E.2d 1260, 1264 (Mass. 1977)). The court reasoned as follows:
The failure to impeach a witness does not
generally prejudice the defendant to such a
degree as to constitute ineffective assistance
of counsel. Moreover, here, Washington was
thoroughly cross-examined using her prior
inconsistent statements, and she admitted
having consumed alcohol on the night of the
alleged attack. Notwithstanding counsel's
failure to use Washington's criminal history
to cast doubt upon her credibility, his cross-
examination was apparently quite effective, as
evidenced by the jury's decision to acquit
both defendants of armed robbery, in spite of
Washington's claim that a gun was used in the
attack.
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Id. (internal quotation marks, citations, and alterations omitted).
With respect to counsel's failure to recall Washington as
a witness in Stephens's case, the court observed that "there is
nothing in the record to indicate that Washington had entered into
an agreement with the prosecutor, or had been promised leniency in
exchange for her testimony." Id. Consequently, the court
concluded that counsel's decision to forego the opportunity to
question Washington about the charges pending against her at the
time of the incident was not "manifestly unreasonable," and
therefore did not support a finding of ineffectiveness. Id.
(internal quotation marks omitted). The Supreme Judicial Court
rejected Stephens's application for leave to obtain further
appellate review.
B. The District Court's Decision
Stephens then filed the instant petition in the district
court, seeking federal habeas corpus relief under 28 U.S.C. § 2254.
Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), the district court could grant habeas relief only if it
concluded that the Massachusetts Appeals 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)(1). The Supreme Court
elaborated on AEDPA's standards of review in Williams v. Taylor,
explaining that:
Under the "contrary to" clause, a federal
habeas court may grant the writ if the state
court arrives at a conclusion opposite to that
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reached by [the Supreme] Court on a question
of law or if the state court decides a case
differently than [the Supreme] Court has on a
set of materially indistinguishable facts.
Under the "unreasonable application" clause, a
federal habeas court may grant the writ if the
state court identifies the correct governing
legal principle from [the Supreme] Court's
decisions but unreasonably applies that
principle to the facts of the prisoner's case.
529 U.S. 362, 412-13 (2000); accord Bell v. Cone, 122 S. Ct. 1843,
1850 (2002).
Stephens argued that the Appeals Court "unreasonabl[y]
appli[ed]" the federal standard for ineffective assistance in
rejecting his claim. The district court agreed. It determined,
first, that Stephens had satisfied the performance prong of the
Strickland test: "Stephens' trial counsel's failure to
cross-examine Washington regarding her prior criminal record and a
pending charge, although induced involuntarily by a regrettable
lapse of memory, caused his representation to fall below the
'objective standard of reasonableness' based on 'prevailing
professional norms.'" Stephens II, 2001 WL 92269, at *3 (quoting
Strickland, 466 U.S. at 688) (footnote omitted)).4
The court then turned to the prejudice inquiry, noting
that "the operative question [under the prejudice prong] is
4
The court made clear that its conclusion was based only on
counsel's initial failure to cross-examine Washington as to her
prior convictions and pending charges. It rejected the state's
attempt to "deflect the focus from Stephens' counsel's initial
inexplicable mistake . . . to his decision not [to] re-call
Washington," reasoning that "[c]ounsel's extremely questionable
decision not to re-call Washington has no bearing on whether his
initial blunder of forgetting to adequately cross-examine
Washington rendered his assistance defective." Stephens II, 2001
WL 92269, at *3 n.1.
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whether, if Stephens' counsel had presented the jury with evidence
of Washington's four prior convictions and [pending charges], there
would have been a reasonable probability that the jury would have
found a reasonable doubt that Stephens' [sic] was guilty." Id. at
*4. In addressing that question, the court emphasized the
importance of Washington's testimony: "If the jury did not believe
Washington, the prosecution had no case." Id. It pointed out that
the jurors would have had cause to doubt Washington's testimony
even without knowledge of her criminal history, given the
inconsistencies in her story. Indeed, the jurors apparently did
doubt Washington's veracity, as demonstrated by their conclusion
that Stephens had not brandished a gun during the robbery as
Washington claimed. Finally, the court observed that Washington's
criminal history -- which included two crimes (uttering a forged
instrument and accepting stolen goods) involving dishonesty --
"went to the heart of her credibility." Id. Based on those
factors, the court concluded that it was "likely" that the jury
would not have voted to convict Stephens if it had been informed of
Washington's "criminally dishonest past." Id.
The next question, therefore, was whether the Appeals
Court's contrary conclusion represented an "unreasonable
application" of federal law, so as to warrant relief under AEDPA,
28 U.S.C. § 2254(d)(1). The district court acknowledged that AEDPA
"dramatically narrowed the class of petitions in which a state
prisoner is entitled to Federal habeas relief." Id. at 6.
Nevertheless, it concluded that Stephens's was one of the "minute
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number of habeas petitions" that still were entitled to relief
under the restrictive standards set out in AEDPA. Id.
In the district court's view, the Massachusetts Appeals
Court's finding that Stephens was not prejudiced by his counsel's
errors was "unrealistic and implausible." Id. The Appeals Court
-- like the district court -- had placed emphasis on the jury's
acquittal of Stephens on the charge of armed robbery, apparently
because it did not credit Washington's testimony that Stephens held
a gun to her head during the robbery. However, while the district
court believed that factor strongly supported Stephens's claim, the
state court drew a different conclusion, reasoning that if the jury
partially disbelieved Washington even without knowledge of her
criminal history, it was unlikely that additional impeachment
evidence would have made a difference. The district found such
logic "not supportable": "The jury's half-hearted belief only
makes it more (not less) likely that if they were to have been
apprized of her record of criminal dishonesty [and the charges
pending against her] the disclosure would have [led] to their total
disbelief of her story." Id. at 5. The court concluded that the
Appeals Court's explanation for its decision was "simply
unpersuasive in light of the counter argument that if the jury only
half-believed Washington without hearing of her record or the
pending charge[s] there was more than a reasonable probability that
they would not have believed her at all, if they had known about
her criminal record and the pending charge[s]." Id. at 6. Thus,
the court granted Stephens's § 2254 petition on the ground that his
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"conviction was secured through the denial of his Sixth Amendment
right to effective assistance of counsel." Id. at 7.
C. Analysis
The Commonwealth appeals, arguing that the district court
improperly substituted its judgment for that of the Massachusetts
Appeals Court. We review the district court's decision de novo.
Simpson v. Matesanz, 175 F.3d 200, 205 (1st Cir. 1999). Thus, like
the district court, we must determine whether the state court's
decision was contrary to, or represented an unreasonable
application of, federal law.
Stephens concedes that the Appeals Court applied the
correct standard to his claim of ineffective assistance. The key
question, therefore, is whether the state court unreasonably
applied that standard in rejecting Stephens's claim. The Appeals
Court assumed, without deciding, that counsel committed serious
error when he forgot to cross-examine Washington about her criminal
history. It did not indulge the same assumption with respect to
counsel's decision not to recall Washington as part of Stephens's
case, concluding that this decision was not unreasonable. Thus,
under the Appeals Court's approach, the only possible prejudice
arose from the failure to examine as to the prior convictions; no
prejudice could arise from the failure to call Washington and
question her about a pro-prosecution bias arising from her pending
charges. Nevertheless, we will, in Stephens's favor, include both
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categories of evidence in the prejudice analysis.5 Rather than
assessing the reasonableness of counsel's performance, we assume
that counsel erred both in neglecting to cross-examine Washington
originally, and in deciding not to recall her as a witness for
Stephens. See Strickland, 466 U.S. at 697 (stating that reviewing
courts may forego inquiry into counsel's performance and focus
solely on the second prong of the test "[i]f it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice"). Accordingly, we turn directly to the
question that divided the district court and the Massachusetts
Appeals Court: whether there was a "reasonable probability" that
the outcome of the trial would have been different if the jury had
known about Washington's criminal history. Id. at 694.
In weighing the prejudicial effect of counsel's errors,
we must consider the totality of the evidence before the judge or
jury. "[A] verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one with
overwhelming record support." Id. at 696. Where, as here, the
relevant error is the failure to impeach a government witness, we
begin by assessing the strength of the prosecution's case and the
5
We note that the district court seems to have considered the
impeachment value of the pending charges (which could have been
used on direct examination if Stephens chose to call Washington as
part of his own case) as a factor in its prejudice analysis.
However, the court never determined whether counsel's decision not
to recall Washington was objectively unreasonable under the
performance prong of the Strickland test. If, as the Appeals Court
concluded, counsel acted reasonably in deciding not to call
Washington as a witness, then the fact that the jury never learned
of the pending charges should not have entered into the prejudice
analysis.
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effectiveness of the defense absent the impeachment evidence. We
then consider "the potential impeachment value of [that evidence]
in undermining the credibility of the government witness['s]
testimony." Gonzalez-Soberal v. United States, 244 F.3d 273, 278
(1st Cir. 2001).
1. The prosecution and defense cases
In assessing the evidence presented at trial, we describe
in detail the testimony of the various witnesses and the arguments
advanced by the lawyers for each side. Such careful analysis is
necessary in cases such as this, where we must make a difficult
judgment about the potential impact on jurors of evidence not
presented to them.
a. The prosecution's case
Washington's credibility was central both to the
government's case and to Stephens's defense. Stephens did not
dispute that Washington had been assaulted on the night in
question. Rather, his defense hinged on the notion that she had
not been robbed -- at least not by Stephens and Walker -- but had
invented the robbery and named Stephens and Walker as the
perpetrators in order to please the police or to deflect attention
from the real cause of her injuries.6 In his opening statement,
defense counsel urged the jury to "pay very, very careful
attention, because the government's case against my client . . . is
6
Apparently, Stephens hoped to suggest that Washington
incurred her injuries during a fight with her boyfriend.
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based entirely on the words of Eleanor Washington. Words and
stories."
i. Eleanor Washington
The prosecution's first witness was Washington herself.
She testified that, at approximately 6:30 p.m. on October 22, 1992,
she was on her way to visit a friend who lived in the Orchard Park
housing development in Roxbury. She was walking down a path
through the middle of the development and was about to "cut through
[a] building to get to one side" when she was approached by two men
whom she knew from the neighborhood as "Johnny" and "Kevin."
Walker asked her "What's up? What's up?" He then snatched at her
pocketbook several times. When Washington tried to pull her
pocketbook away, Stephens demanded that she turn over her money.
She gave him $42 in cash, but Stephens, apparently, believed that
she had more. He pulled out a silver gun and, holding it to
Washington's forehead, asked her repeatedly whether she had any
more money. She did not. Washington showed him that her pockets
were empty and dumped out her purse. Stephens then started hitting
her with his hands.7 At one point, Washington tried to break away,
but Walker was blocking her path. Eventually, she fell to the
ground, and Stephens -- who was wearing heavy yellow work boots --
began to kick her in the face, head, and back. She was not sure
whether Walker kicked her as well. Eventually, she passed out.
7
Washington testified that she did not know what he had done
with the gun.
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Washington testified that she did not remember going to
the police station on the night of the robbery. Instead, the first
thing she could remember after losing consciousness was waking up
in the hospital, where she stayed that night. The next day,
October 23, she spoke on the telephone with Detective Paul Martin
of the Boston Police Department. She told him that she had been
attacked and robbed by Johnny Stephens and Kevin Walker, and
described both men. On October 24, Detective Martin came to her
home with a book of photographs. She identified both Stephens and
Walker. Washington also described to Detective Martin the handgun
that Stephens had used during the robbery.8
Washington was cross-examined extensively by Stevens's
counsel, but without much success. Washington denied having told
Detective Martin that the robbery and beating occurred inside a
hallway, explaining that she told him that she was cutting "through
a building," but that "it didn't happen inside a building." She
also denied telling the detective that two people had participated
in the beating. Washington reiterated that she did not know how
many people hit and kicked her once she fell to the ground: "I was
down on the ground trying to save my face and everything else that
I was blocking."
Defense counsel then turned to Washington's statements at
the police station immediately after the incident, before she was
taken to the hospital. Although Washington told Detective Martin
8
Detective Martin took several pictures of Washington that
day, and those photographs were introduced into evidence to show
Washington's injuries.
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that she knew both Walker and Stephens by their first names, she
gave only the name "Johnny" at the police station. Defense counsel
pressed her on that point, but to no avail. "Like I said," she
responded, "I don't remember how I got to the police station. I
don't remember what I said to anybody at the police station. I
don't even know how I got to the hospital, so therefore I can't
tell you what I said when I got in the police station . . . ." In
response to further questioning, Washington explained that she knew
Walker and Stephens by their first names, and had learned their
last names by "ask[ing] around." She refused to divulge the names
of the people to whom she had spoken.
Eventually, defense counsel returned to the subject of
Washington's recollections of the police station and the hospital.
She repeated that she had no memory of anything before waking up in
the hospital -- and so did not recall talking to EMTs at the police
station, or to a nurse at the hospital. She did remember, however,
that one of her assailants had put a gun to her head. When defense
counsel tried to exploit her selective memory, she explained that
she remembered the gun "[b]ecause I was alert then. I wasn't beat.
I wasn't stomped. I wasn't kicked in my head. I was looking,
standing dead at them." However, due to her subsequent loss of
consciousness, Washington continued, she did not remember whether
she had told anyone at the police station or the hospital about the
gun. Defense counsel suggested that her loss of consciousness
might have been caused by alcohol, but Washington denied drinking
that night. "If I had anything, I might have had a wine cooler.
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I don't have -- because I don't drink alcohol, okay? A wine
cooler."
Counsel for co-defendant Walker cross-examined Washington
as well. Rather than attempt to impeach her testimony, he sought
to make clear that Walker never took any of Washington's money, and
that he never punched her. Washington conceded both points, but
would not confirm that Walker did not kick her when she was on the
ground, saying "I do believe he was involved in what was going on
with me."
ii. Officer Evelyn Davis
The prosecution then called its next witness, Officer
Evelyn Davis, who had been staffing the front desk of the Roxbury
police station on the evening of October 22. Officer Davis
testified that she saw Washington stagger into the station at
approximately 7:30 that evening. Washington was holding her face,
which was covered in blood. Officer Davis helped Washington sit
down on a bench, and cleaned off her face with paper towels. She
then called the EMTs and, while waiting for them to arrive, asked
Washington several questions about the incident. Officer Davis
explained that Washington told her that she had been robbed in the
Orchard Park projects. She described one of her assailants, whom
she identified as "Johnny." After consulting her report from that
evening, Officer Davis added that Washington had described "Johnny"
as a black male, approximately 40 years old. She could not
describe what he was wearing. Officer Davis stressed that her
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primary concern at that point was Washington's well-being, and that
the interview was not intended to be "thorough or complete."
On cross-examination by Stephens's counsel, Officer Davis
confirmed that Washington was conscious when she entered the police
station, and that she apparently had walked there herself. Indeed,
she was lucid enough to give her address, phone number, and date of
birth. Officer Davis also confirmed that Washington had stated
that the robbery took place in a hallway inside one of the
buildings in the housing development. Moreover, although Officer
Davis asked her whether any kind of weapon was used, Washington did
not mention a gun. Instead, she indicated that the robbery and
assault had been accomplished with "feet and hands." Finally,
Officer Davis testified that Washington gave only a partial
description of Stephens, and could not describe -- and did not name
-- Walker at all.
Walker's counsel cross-examined Officer Davis briefly,
asking her only whether her report mentioned Walker by name.
Officer Davis stated again that Washington "did not mention a
second name."
iii. Joseph O'Hare
On the next day of trial, the prosecution called Joseph
O'Hare, one of the EMTs who treated Washington at the police
station and transported her to the hospital on October 22. O'Hare
testified that Washington's injuries were consistent with "trauma
to the face from an outside force," "some type of blow or trauma to
her face," but not with falling down. His report from that evening
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confirmed that Washington had a normal "level of consciousness" and
was "up walking around." Although O'Hare had noticed an odor of
alcohol on her breath (and noted it in his report), he explained
that she "did not appear impaired."
On cross-examination, Stephens's attorney asked several
questions designed to emphasize that Washington appeared to be
"conscious and alert" in the police station. O'Hare stated that he
had asked her whether she might have lost consciousness during the
beating, and that Washington "denied that she had any loss of
consciousness."
iv. Detective Paul Martin
The prosecution's final witness was Detective Paul
Martin. The prosecutor led him through his telephone conversation
with Washington on October 23 and his meeting with her on October
24. Over defense counsel's objections, Detective Martin recounted
the story of the robbery and assault as told to him by Washington
on October 23. The story was, for the most part, consistent with
Washington's testimony at trial, including the fact that Washington
could not remember going to the police station.
Detective Martin testified that Washington had given him
the first names and descriptions of both her assailants on October
23. She explained to him that she knew both men from the
neighborhood, but did not know their last names. However, she knew
some people in the Orchard Park development who she thought could
give her the full names of the two men. Detective Martin called
Washington again the next day, October 24, and at that point she
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was able to give him the last names of Walker and Stephens. Later
that day, Detective Martin brought a book of photographs to
Washington's house, and she positively identified both men.
On cross-examination, Stephens's counsel drew out several
inconsistencies in Washington's story. First, Detective Martin
confirmed that Washington initially told him that the incident took
place "[i]n the hallway . . . in one of the apartment buildings."
Washington, he explained, had said she was on the first floor of
the building, "cutting through from one door to go out the other
door on the other side of the building." She did not know which
building it was, and Detective Martin conceded that he never went
to the site with her to try to identify the building. Second,
Detective Martin's notes from his first conversation with
Washington indicated that she had reported that both of her
assailants had beaten and kicked her, whereas she testified at
trial that Walker had not hit her, and that she could not recall
whether Walker had kicked her once she fell to the ground.
Detective Martin also stated that Washington's descriptions of the
two men were significantly more detailed on October 23 than they
had been in the police station the previous day, directly after the
incident. Finally, he confirmed that Washington did not mention a
gun when she first described the incident to him on October 23.
b. Stephens's case
At the close of the prosecution's case, Stephens called
his first and only witness: private investigator Gerard Belleveau.
Belleveau testified that he had spoken to Washington roughly eight
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months after the incident, and that she told him that she did not
know either Stephens's or Walker's names previously, but had
"learned [the name Johnny] during the incident."
c. Walker's case
Stephens rested his case at the close of Belleveau's
testimony, and Walker called his only witness, attorney John
Conwell. Conwell had represented Walker earlier in the case, and
testified that he spoke to Washington on three occasions. On the
first occasion, he stated that he approached Washington in the
courtroom of the Roxbury District Court, and asked her, "'What did
Kevin do to you?'" Washington replied, "'He didn't help me. He
was there and he didn't help me.'" Conwell saw Washington again
before a hearing in the case, and asked her what she planned to say
at the hearing. "[S]he said she was going to testify that Kevin did
nothing, that he didn't do anything." The last time Conwell saw
Washington, she had arrived at the courthouse late, missing a
hearing that had already been rescheduled due to several
continuances. In Washington's absence, the Roxbury district court
had dismissed the charges against Walker for want of prosecution.
(Washington later testified before the grand jury and the charges
were reinstated.) Conwell remembered speaking to Washington at
approximately 3:30 that afternoon. She inquired after Walker, and
Conwell told her that he was going to be released. Washington
replied, "'[t]hat's good because he didn't do anything anyway.'"
Conwell then arranged with Washington to meet Walker at a nearby
deli as soon as he was released. When Walker arrived at the deli,
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he and Washington embraced and then "walk[ed] down Warren [Street]
towards the Orchard Park Project with their arms around each
other." In response to a question from Stephens's counsel, Conwell
added that he said to Washington and Walker, "'You're going down to
Zeigler Street to get high'" and that "[t]hey both turned around
and laughed and nodded and said, 'Yes.'"
d. Rebuttal
The prosecutor then called a rebuttal witness, Assistant
District Attorney Sean Donahue. Donahue was handling Walker's case
on the day it was dismissed, and had called Washington to ask her
to come to court to testify. Washington did not show up, and the
district court judge dismissed the case at approximately 3:10 p.m.
Washington arrived soon thereafter, explaining that she was late
because she had walked to the courthouse from Brookline. Donahue
asked the judge to vacate the dismissal, but the judge denied the
request and told him that the case could be presented to the grand
jury. Donahue had other hearings that day, so he asked Washington
to sit down and wait for him so that they could discuss what to do
about the case. Once his other matters were finished, he spoke
with Washington in the office of the Roxbury Court. Washington was
annoyed at having walked all the way to the courthouse only to find
that the case had been dismissed, so Donahue arranged for a police
officer to drive her home. Washington left the office at
approximately 4:00 p.m.
Stephens's counsel cross-examined Donahue, attempting to
show that he had confused Walker's case with Stephens's, and that
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the events he described took place in connection with Stephens's
case, and did not contradict Conwell's testimony. That attempt was
largely unsuccessful, as Donahue testified that he had a record of
the events in Walker's file, referencing the date on which Walker's
case was dismissed.
e. Summary
At the close of evidence, therefore, the government had
shown, without contradiction from the defendants, that Washington
had been badly beaten on the night in question. Washington had
testified unequivocally that Stephens and Walker were responsible
for the beating, and that Stephens had taken her money while Walker
stood by. Officer Davis and Detective Martin confirmed that the
essence of Washington's story -- that she was assaulted and robbed
by a man she knew as Johnny -- remained consistent from the outset.
Nevertheless, the defendants managed to expose certain
inconsistencies in the details of Washington's story. Stephens's
counsel emphasized those inconsistencies in his closing argument,
pulling together the various threads of testimony that called into
question the accuracy of Washington's account. He pointed out that
Washington initially told Officer Davis and Detective Martin that
the robbery took place in the hallway of one of the buildings in
the housing development. At trial, however, she stated explicitly
that the incident occurred outside, in a courtyard. Defense
counsel argued that the difference between those two accounts was
not merely a matter of recollection; rather, Washington had
provided specific details to support each version. For example,
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Washington told Detective Martin that Walker had stood in her way
so that she could not get out of the hallway. And at trial, she
testified that during the assault someone shouted out of a window
to "take this shit away from the window." Defense counsel argued
that such evocative details suggested fabrication, not a memory
lapse or simple confusion.
As both the district court and the Massachusetts Appeals
Court observed, defense counsel's efforts to discredit Washington
were at least partially successful. The jurors apparently
concluded that at least some of Washington's testimony was not to
be believed, and refused to convict Stephens of armed robbery. We
turn, therefore, to the "potential impeachment value" of the
missing evidence of her criminal history. Gonzalez-Soberal, 244
F.3d at 278. Before we determine whether the state court's
conclusion was unreasonable, we assess whether there is a
"reasonable probability" that the missing impeachment evidence
would have so undermined Washington's credibility as to call into
question the rest of her story. Strickland, 466 U.S. at 694.
2. The impeachment evidence
In assessing the impeachment value of the evidence of
Washington's prior convictions and pending charges, we are guided
by the Supreme Court's decision in Davis v. Alaska, in which the
Court discussed the nature of such evidence:
One way of discrediting the witness is to
introduce evidence of a prior criminal
conviction of that witness. By so doing the
cross-examiner intends to afford the jury a
basis to infer that the witness' character is
-26-
such that he would be less likely than the
average trustworthy citizen to be truthful in
his testimony. The introduction of evidence
of a prior crime is thus a general attack on
the credibility of the witness. A more
particular attack on the witness' credibility
is effected by means of cross-examination
directed toward revealing biases, prejudices,
or ulterior motives of the witness as they may
relate directly to the issues or personalities
in the case at hand. The partiality of a
witness is subject to exploration at trial,
and is always relevant as discrediting the
witness and affecting the weight of his
testimony.
415 U.S. 308, 316 (1974) (internal quotation marks omitted).
Here, the bulk of the relevant evidence related to prior
convictions, and therefore would have served as a "general attack"
on Washington's credibility. Id. Under Massachusetts law, as
elsewhere, Stephens's counsel would have been permitted to
introduce the fact of the prior convictions -- including the date
and the crime charged -- but could not question Washington as to
their details. Thus, the jury would have learned that, in the past
five years, Washington had been convicted of possession of drugs
and related paraphernalia (cocaine and a hypodermic needle), and
that she had "utter[ed] a forged instrument" and accepted stolen
property. The judge would have instructed the jurors that they
could not rely on those convictions as proof that Washington was a
person of bad character; that is, someone who was prone to abuse
drugs, or to steal, for example. Rather, the jurors could consider
evidence of prior convictions only to determine whether or not they
called into question Washington's credibility as a witness.
Commonwealth v. Roberts, 389 N.E.2d 989, 996-97 (Mass. 1979); see
-27-
also Commonwealth v. Riccard, 575 N.E.2d 57, 60-61 (Mass. 1991)
(approving of the portion of trial court's jury instructions that
stated that jury could "consider the evidence of prior convictions
of [government witnesses] only on the issue of whether or not you
believe or find it impeaches the believability or credibility of
the witness' present testimony here in this courtroom").9
Stephens also was prepared to question Washington about
charges that were pending against her at the time of the alleged
incident on October 22, 1992, and when she testified before the
grand jury in March of 1993. As a general rule, pending charges
are relevant to show pro-government bias on the part of the
testifying witness, on the theory that the witness might tailor her
testimony to please the prosecutor, in exchange for a promise of
leniency on the pending charges. See Commonwealth v. Henson, 476
N.E.2d 947, 951-52 (Mass. 1985). A colorable showing of bias can
be important because, unlike evidence of prior inconsistent
statements -- which might indicate that the witness is lying --
evidence of bias suggests why the witness might be lying. See
Commonwealth v. Martin, 750 N.E.2d 1009, 1011 (Mass. 2001) (holding
that district court erred in barring inquiry into bias because,
"[a]lthough arguably defense counsel was able to illustrate some
9
The judge might also have instructed the jurors that
convictions "which involved basic honesty, such as perjury or
larceny," might affect the witness's credibility more than a crime
not involving honesty, such as prostitution. Commonwealth v.
Bumpus, 290 N.E.2d 167, 176 (Mass. 1972) (approving such an
instruction, provided that the jurors are reminded that they are
"the ultimate arbiters of credibility" (internal quotation marks
omitted)), vacated on other grounds, 411 U.S. 945 (1973).
-28-
inconsistencies in the complainant's testimony, evidence respecting
her motive in accusing the defendant was entirely lacking").
We note, however, that any suggestion of bias would have
been rather weak in this case. The charges against Washington were
pending in a different county, under the authority of a different
prosecutor. What Washington alleged or testified to in Stephens's
case was "not likely to win [her] points" with a prosecutor from a
different county. Commonwealth v. Supplee, 697 N.E.2d 547, 550
(Mass. App. Ct. 1998); see also Henson, 476 N.E.2d at 951-52
(stating rule that "charges pending in the same county normally may
be inquired into if the ground of bias is specifically asserted"
(emphasis added)). Defense counsel's notes suggest that he planned
to argue that the charges pending against Washington might have
encouraged her to stick to her original story to avoid the wrath of
a prosecutor who likely could make trouble for her. Perhaps so,
but that possibility does not explain why the existence of those
charges would have prompted her to invent the story in the first
place. Washington did not need to fabricate a robbery or name the
wrong perpetrators in order to engage the sympathy of the
prosecutor who was handling the charges against her: she already
was a sympathetic figure because of the brutal attack that
indisputably occurred.
In sum, it is debatable whether Stephens's counsel would
have been able to parlay the pending charges into a strong showing
of bias. Nevertheless, the existence of such charges had some
value as impeachment evidence. And, as noted, defense counsel
-29-
could have used Washington's prior convictions to argue to the jury
that Washington was "less likely than the average trustworthy
citizen to be truthful in [her] testimony." Davis, 415 U.S. at
316. Although such a general attack on her veracity may not have
been enough to persuade the jury that Washington had fabricated the
charges against Stephens and Walker, it bears emphasis that
Washington's credibility was critical to the prosecution's case.
We noted in Gonzalez-Soberal that "a significant factor weighing in
favor of finding prejudice is the absence of any corroborating
evidence other than the testimony of" the witness whom defense
counsel failed to impeach. 244 F.3d at 278. Such is the case
here. Washington was the only witness who could place Stephens at
the scene of the attack, and who could testify that the crime
involved a robbery (whether armed or not). Moreover, as in
Gonzalez-Soberal, there were "several weaknesses" in her testimony,
even without the missing impeachment evidence. Id. Together,
these factors make the question of prejudice a "close call." Id.
at 279.
3. AEDPA applied
The dispositive question under AEDPA, however, is not
whether we believe that Stephens was prejudiced by his counsel's
errors. See Bell, 122 S. Ct. at 1852 ("[U]nder § 2254(d)(1), it is
not enough to convince a federal habeas court that, in its
independent judgment, the state-court decision applied Strickland
incorrectly."). Rather, we must ask whether it was unreasonable
for the Massachusetts Appeals Court to conclude that he had not met
-30-
his burden of showing prejudice. In defining an "unreasonable
application" of federal law, the Supreme Court has said that "the
most important point is that an unreasonable application of federal
law is different from an incorrect application of federal law."
Williams, 529 U.S. at 410. Thus, under AEDPA, "a federal habeas
court may not issue the writ simply because that court concludes in
its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable." Id. at 411.
On the facts of this case, we conclude that the state
court's rejection of Stephens's claim of ineffective assistance of
counsel did not represent an unreasonable application of federal
law. As noted, both the Appeals Court and the district court found
it important that defense counsel was able to call into question
Washington's credibility even without the evidence of her criminal
history. The district court thought there was a reasonable
probability that the jurors' refusal to credit Washington's claim
that Stephens had used a gun would have matured into a reasonable
doubt as to her entire story if they had known about her prior
convictions and pending charges. The Appeals Court thought
otherwise, reasoning that the missing impeachment evidence added
nothing new. The jurors already suspected that Washington's
testimony might not be entirely accurate, yet -- despite those
doubts -- they still concluded that she was not lying about the
core facts of the assault and robbery.
-31-
Thus, both courts recognized that the prosecution's case
depended almost entirely on Washington's credibility, and that
Stephens had succeeded in calling into question some of the
specifics of Washington's story. They differed only in their
assessments of whether and to what degree knowledge of Washington's
criminal history would have shaken the jury's belief in the
essential elements of her story. We have carefully reviewed the
evidence presented at trial, and considered the nature of the
missing impeachment evidence. Based on that review, we do not
think the evidence regarding Washington's criminal history was so
damaging that it was unreasonable for the Appeals Court to conclude
that Stephens was not prejudiced by its omission. Under AEDPA,
that is the end of the matter.
III. CONFRONTATION CLAUSE
Stephens also argues that the trial judge's refusal to
allow defense counsel to reopen his cross-examination of Washington
violated Stephens's rights under the Confrontation Clause of the
Sixth Amendment. U.S. Const. amend. VI (guaranteeing right of
criminal defendant "to be confronted with the witnesses against
him"). The Supreme Court long has recognized that "a primary
interest secured by [the Confrontation Clause] is the right of
cross-examination." Douglas v. Alabama, 380 U.S. 415, 418 (1965).
The reason is simple: "Cross-examination is the principal means by
which the believability of a witness and the truth of his testimony
are tested." Davis, 415 U.S. at 316.
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In order to safeguard the defendant's rights under the
Confrontation Clause, we have held that the trial judge may not so
restrict cross-examination as to deprive the defendant of the
"constitutionally required threshold level of inquiry," United
States v. Tracey, 675 F.2d 433, 437 (1st Cir. 1982), and must give
the accused "sufficient leeway to establish a reasonably complete
picture of the witness's veracity, bias, and motivation," United
States v. Laboy-Delgado, 84 F.3d 22, 28 (1st Cir. 1996) (internal
quotation marks omitted). Stephens argues that the trial judge
violated that directive here by refusing defense counsel's request
to re-open his cross-examination of Washington in order to question
her about her criminal history.
Although Stephens presented his Confrontation Clause
claim in his state appeal, it is unclear whether the Massachusetts
Appeals Court actually decided the federal constitutional issue.
Rather, it appears that the court addressed the alleged error
largely as a matter of state law. See Stephens I, 693 N.E.2d at
720. Stephens argues, therefore, that we should review his
Confrontation Clause claim de novo rather than under the
deferential "contrary to or unreasonable application of" standard
set out in § 2254(d)(1). See Fortini v. Murphy, 257 F.3d 39, 47
(1st Cir. 2001) ("[W]e can hardly defer to the state court on an
issue that the state court did not address."). The district court
appears to have taken the same view. In rejecting Stephens's
claim, the court did not mention the Appeals Court's decision, but
-33-
simply concluded that Stephens had not stated a violation of the
Confrontation Clause. See Stephens II, 2001 WL 92269, at *7.
We need not dwell on the proper standard of review
because we agree with the district court that Stephens's claim is
without merit. "'[T]he Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the
defense might wish.'" Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986) (quoting Delaware v. Fernsterer, 474 U.S. 15, 20 (1985) (per
curiam)); accord United States v. Abel, 469 U.S. 45, 50 (1984)
(stating that "the Confrontation Clause of the Sixth Amendment
requires a defendant to have some opportunity to show bias on the
part of a prosecution witness"). Here, the court ruled prior to
trial that Stephens's counsel could cross-examine Washington as to
her criminal history, including the charges pending against her at
the time of the incident. Due to his unfortunate memory lapse,
counsel did not take advantage of that opportunity. Although we
agree with the Massachusetts Appeals Court that the "better
practice" would have been to permit Stephens's attorney to correct
his error by reopening cross-examination, Stephens I, 693 N.E.2d at
720, the court was not constitutionally compelled to give counsel
that second chance.
The Confrontation Clause requires the trial court to give
the defendant the opportunity to confront adverse witnesses and "to
expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the
-34-
witness." Van Arsdall, 475 U.S. at 680 (internal quotation marks
omitted). It does not require the court to reopen cross-
examination so that defense counsel can pursue a line of
questioning that was available when the witness testified
initially. That is especially true here, since the court indicated
that it would permit Stephens to recall Washington as his own
witness. Cf. United States v. Medina, 992 F.2d 573, 581 n.2 (6th
Cir. 1993) (finding that trial court did not abuse its discretion
in refusing to re-open cross-examination of government witnesses,
"particularly when it told counsel they could recall witnesses if
they wished"). Counsel's decision to forego that opportunity,
while relevant to Stephens's claims of ineffective assistance, has
no bearing on the Confrontation Clause issue.
IV. CONCLUSION
Having concluded that the Massachusetts Appeals Court's
ruling on Stephens's claim of ineffective assistance of counsel did
not constitute an unreasonable application of federal law, we must
reverse the district court's decision granting relief under 28
U.S.C. § 2254 and ordering a new trial. We affirm the judgment of
the district court insofar as it rejected Stephens's Confrontation
Clause claim.
Affirmed in part and reversed in part.
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Stephens v. Hall
Court: Court of Appeals for the First Circuit
Date filed: 2002-06-28
Citations: 294 F.3d 210
Copy Citations