Levasseur v. Pepe

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-1346

MARK LEVASSEUR,

Appellant,

v.

PETER PEPE,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Stahl, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

ERRATA SHEET
ERRATA SHEET

The opinion issued on November 22, 1995, should be amended
as follows:

On Page 3, lines 1-2, delete the victim's
name and replace with "the victim (`Jane
Doe')".

On page 14, at the last two lines of the indented
quotation, replace the victim's name with "[Jane Doe]"

On the following locations, replace the
victim's last name with "Doe" or "Doe's":

Page 3, lines 3, 4, 5, 7, 11, 12, 13, 15 (2
times), 16, 18 and 21

Page 4, lines 2, 4, 11 and 24

Page 5, lines 1, 4, 6, 10, 17, 19 and 21

Page 6, lines 1 and 2

Page 16, lines 6, 7, 8, 13, 15 and 19

Page 17, lines 1, 4, 10, 14, 17 and 19

Page 18, lines 6 and 13

Page 19, line 15 and line 2 of footnote 6

Page 20, lines 1, 3, 9, 14 and 21

Page 21, lines 2, 8, 10, 15 and line 1 of
footnote 8

Page 22, line 4

Page 25, line 8 of footnote 9

Page 26, lines 10, 12, 14, 17 and line 4 of
footnote 10

Page 27, line 23

Page 29, line 23

Page 30, line 6

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-1346

MARK LEVASSEUR,

Appellant,

v.

PETER PEPE,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Stahl, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Thomas J. Gleason for appellant.

William J. Duensing, Assistant Attorney General, with whom

Scott Harshbarger, Attorney General of the Commonwealth of

Massachusetts, was on brief for appellee.

November 22, 1995

STAHL, Circuit Judge. In January of 1990,
STAHL, Circuit Judge.

petitioner Mark Levasseur was convicted in a Massachusetts

state court of rape, indecent assault and battery, and

assault and battery. After exhausting his state court

remedies, Levasseur sought a writ of habeas corpus in the

United States District Court for the District of

Massachusetts, pursuant to 28 U.S.C. 2254, claiming that

his state convictions were obtained in violation of the

United States Constitution. Specifically, Levasseur asserted

that an improper admission of hearsay testimony violated his

Sixth Amendment right to confrontation, an unduly suggestive

identification procedure violated his Fourteenth Amendment

right to due process of law, and his trial counsel's

deficient performance deprived him of his Sixth Amendment

right to the effective assistance of counsel. The district

court denied the habeas application, and this appeal

followed. For the reasons discussed below, we affirm.

I.

BACKGROUND

A. Pretrial Events1

At some time between the late evening and early

morning hours of June 30 and July 1, 1988, a man driving a

1. For a more comprehensive statement of the facts, see
Commonwealth v. Levasseur, 592 N.E.2d 1350, 1351-53 (Mass.

App. Ct.), review denied, 600 N.E.2d 171 (Mass. 1992), cert.

denied, 113 S. Ct. 978 (1993).

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big, dark-colored, "4 x 4" pickup truck approached the victim

('Jane Doe') as she was walking on the sidewalk and asked her

if she wanted a ride. Undeterred by Doe's initial rejection,

the driver returned and Doe relented. Instead of dropping

Doe at her destination, the driver took her to a deserted

area behind a factory and raped her on the truck seat. Her

attacker, still restraining Doe, drove away from the scene

and then pushed her out of the truck.

Ronald Ralls, driving behind the truck, saw Doe

fall from the truck and stopped to render aid. Ralls drove

Doe to his home and notified the police. Officer Mendes

arrived, but Doe rebuffed his attempts to approach her. The

officer detected the smell of alcohol on Doe's breath.

Emergency paramedics transported Doe to the hospital. Doe's

continued refusal to let anyone touch her prevented the

hospital staff from administering a "rape kit." Eventually,

Doe, in the presence of Officer Mendes, related the incident

in general terms to a female hospital administrator.

Five days later at the police station, Doe further

recounted the incident to Inspector Boutselis. She described

her assailant's pickup truck as a big, dark "4 x 4" sitting

high off the ground and her attacker as a white male with a

medium-type build, thin face, high cheekbones, dark hair,

dark eyelashes, and a small moustache. Boutselis showed Doe

over six thousand photographs of white males. A 1983

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photograph of Levasseur was among the six thousand. Although

Doe said several photographs, including Levasseur's, looked

similar to her assailant, she was unable to make an

identification.

On July 13, 1988, because of a new lead, Inspectors

Boutselis and Guilfoyle began to focus on Levasseur. On

their way to Levasseur's residence in an unmarked car,

Boutselis and Guilfoyle noticed a pickup truck fitting Doe's

description. Boutselis and Guilfoyle observed the truck pull

over to the side of the road, saw the driver beckon to a

young blond-haired girl walking on the sidewalk, and heard

him say "Come on." After the girl continued walking and the

truck drove on, Guilfoyle questioned the girl, who said that

the man in the truck had offered her a ride but she did not

know him. Learning from the police dispatcher that the truck

belonged to Levasseur, Boutselis and Guilfoyle stopped

Levasseur and asked about the girl. Levasseur told them that

she was his cousin and he had offered her a ride, but he did

not volunteer her name. Levasseur agreed to go to the police

station, where Boutselis and Guilfoyle questioned and

photographed him.

The next day, Inspector Boutselis showed Doe a

group of sixty photographs including Levasseur's photograph

from the day before. Doe stated that Levasseur's recent

photograph looked like her assailant and asked Boutselis for

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more photographs of Levasseur. Upon examining Levasseur's

1983 photograph, Doe said that it looked more like her

assailant than the recent photograph. Given the seriousness

of the charges, Doe refused to make a positive identification

of Levasseur based solely on the photographs and requested to

see him in person.

Using an unmarked car, Inspector Boutselis and Doe

began field identifications.2 Over the next five months,

they made nine excursions lasting two to three hours each to

locations near Levasseur's place of work and home. On five

occasions, they sat outside the Textron plant in Wilmington

thinking that Levasseur was employed there. Levasseur, it

was later discovered, worked at Digital Equipment

Corporation, not Textron. On the remaining four occasions,

Boutselis and Doe sat at an intersection in North Chelmsford

one-half mile from Levasseur's home. Doe never positively

identified anyone on the first eight excursions. During the

ninth trip, on December 16, 1988, however, Doe saw

Levasseur's truck approach and exclaimed, "Wow, this looks

like it." As the truck came within six feet of Doe and

Levasseur looked in her direction, Doe screamed, "It's him,

it's him. Get me . . . out of here right now."

2. Because Levasseur was no longer cooperating with the
investigation and probable cause to arrest him did not exist,
Inspector Boutselis could not require Levasseur to
participate in a line-up.

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B. The Trial

On January 24, 1990, Levasseur was brought to trial

on charges of rape, indecent assault and battery, and assault

and battery. The prosecution called six witnesses in its

direct case and one witness on rebuttal, with Levasseur

calling himself, his wife, and his mother-in-law as his

defense witnesses.

In his rebuttal case, the district attorney called

Inspector Guilfoyle to testify about the July 13, 1988,

incident with the blond-haired girl (we use the language used

at trial and refer to "the blond-girl incident"). In

recounting his conversation with the blond girl, Inspector

Guilfoyle uttered the following hearsay testimony:

Q. Sir, . . . what was the nature of the
conversation with her [the blond girl]?
A. We pulled up; we were in an unmarked
vehicle. We identified ourselves to the
young lady. We asked her if she knew the
gentleman in the truck; she said no. We

asked her if she could tell us what he
wanted and she said he offered her a

ride.

(emphasis added).

After a three-day trial, the jury found Levasseur

guilty of rape, indecent assault and battery, and assault and

battery. Levasseur was sentenced to concurrent state prison

terms of ten to fifteen years and four to five years.

C. Post-Conviction Proceedings

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After the jury's verdict, Levasseur filed a motion

for a new trial which the trial court denied. The

Massachusetts Appeals Court affirmed the convictions, and the

Supreme Judicial Court of the Commonwealth of Massachusetts

denied Levasseur's petition to obtain further appellate

review. The United States Supreme Court denied Levasseur's

petition for a writ of certiorari.

Having exhausted his state remedies, Levasseur

filed a petition for habeas corpus in the United States

District Court for the District of Massachusetts. The

district court denied the petition for the following reasons.

Levasseur's trial counsel had procedurally defaulted on the

claim of unduly suggestive identification by his failure to

object. The court held that Levasseur could not excuse this

procedural default because he could not show cause for that

failure via a claim of ineffective assistance of counsel.

Counsel's failure to object did not constitute deficient

performance because the identification method was not unduly

suggestive. With respect to the hearsay claim, the court

held that Levasseur's Confrontation Clause rights were

violated, but the error was harmless. Finally, according to

the district court, Levasseur's remaining ineffective-

assistance-of-counsel claims failed because trial counsel's

overall performance was not deficient and Levasseur suffered

no prejudice.

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II.

DISCUSSION

On appeal, Levasseur makes the following four

arguments: (1) he did not procedurally default on his Due

Process and Confrontation Clause claims, (2) the violation of

his Sixth Amendment right to confrontation was not harmless

error, (3) the pre-trial identification procedure was unduly

suggestive and violated his Fourteenth Amendment right to due

process of law, and (4) he was denied effective assistance of

counsel. We discuss each argument in turn.

A. Procedural Default

Levasseur asserts that the district court erred in

holding that he procedurally defaulted on his Due Process and

Confrontation Clause claims. Levasseur admits that his trial

counsel did not object to the pre-trial identification

procedure and the hearsay statement as each was introduced

and acknowledges that, to consider such claims on appeal,

Massachusetts requires contemporaneous objection to their

admission as evidence at trial, Mass. R. Crim. P. 24(b). He

contends, however, that his filing a motion for new trial and

the trial court's consideration of the issues presented acted

to resurrect and preserve these claims for review. We

disagree.

Under Massachusetts case law, issues previously

lost for appeal may be resurrected and preserved for

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appellate review if a trial judge exercises his discretion

and considers them in ruling on a motion for a new trial.

See Commonwealth v. Harrington, 399 N.E.2d 475, 478 (Mass.

1980); Commonwealth v. Gagne, 326 N.E.2d 907, 911 (Mass.

1975); Commonwealth v. Buckley, 458 N.E.2d 781, 783 (Mass.

App. Ct.), review denied, 461 N.E.2d 1219 (Mass. 1984).

Whether the trial court considered Levasseur's Due Process

and Confrontation Clause claims and thereby waived his

procedural default is a legal question subject to our plenary

review. See Burks v. Dubois, 55 F.3d 712, 716 (1st Cir.

1995) (reviewing de novo question of whether state court's

limited review of petitioner's claim for miscarriage of

justice effected a waiver); Puleio v. Vose, 830 F.2d 1197,

1200 (1st Cir. 1987), cert. denied, 485 U.S. 990 (1988)

(same).

In ruling on Levasseur's motion for new trial, the

trial judge did not consider Levasseur's Due Process and

Confrontation Clause claims individually but rather only as

part and parcel of Levasseur's ineffective-assistance-of-

counsel claim. The court concluded that the attorney's

failure to object to the identification process and the

hearsay testimony was not ineffective assistance of counsel.

Because the trial judge never considered the Due Process and

Confrontation Clause claims severally, it did not resurrect

these procedurally defaulted claims, and we consider them on

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appeal only as they constitute part of Levasseur's

ineffective-assistance-of-counsel claim.

Levasseur invites this court to rule that an

appellant claiming ineffective assistance of counsel in a

motion for a new trial before a state trial court preserves

for habeas corpus review not only the ineffective-assistance-

of-counsel claim but the substantive claims subsumed within

the ineffective-assistance-of-counsel claim. In this case

and typically, however, the substantive claims underlying the

ineffective-assistance-of-counsel claim are constitutional

claims that were procedurally defaulted due to the

ineffective performance of counsel. In Coleman v. Thompson,

501 U.S. 722, 750 (1991), the Supreme Court ruled that

federal habeas review of procedurally defaulted claims is

barred unless the petitioner demonstrates (1) cause for the

default and "actual prejudice as a result of the alleged

violation of federal law" or (2) that failure to consider the

claims will result in "a fundamental miscarriage of justice."

By proposing that procedurally defaulted claims should also

be preserved if they form part of an ineffective-assistance-

of-counsel claim, Levasseur suggests that we create a third

way to excuse procedural default, where Coleman purposefully

provides only two. Recognizing Levasseur's suggestion as an

attempt to make an end run around Coleman, we refuse his

invitation.

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Having determined that the trial court did not

resurrect Levasseur's otherwise procedurally defaulted Due

Process and Confrontation Clause claims, we turn our

attention to determining whether we nonetheless may review

the procedurally defaulted claims on habeas. We begin by

considering the Confrontation Clause claim.

B. Inadmissible Hearsay

Where a petitioner, like Levasseur, has

procedurally defaulted on his claim, we reach the merits on

habeas corpus review only if the default can be excused by

establishing either cause for the default and actual

prejudice resulting therefrom or that failure to consider the

claim will result in a "substantial miscarriage of justice."

Coleman, 501 U.S. at 750. Should the petitioner surmount

this hurdle and excuse his default, we may then reach the

merits of his claim and determine whether a constitutional

error has occurred and, if so, whether the error was harmless.3

3. We note that the Fourth and Eighth Circuits have held
that once cause and prejudice is found sufficient to excuse
the procedural default and an error is found on the merits,
no additional harmless-error review is necessary. Hill v.

Lockhart, 28 F.3d 832, 839 (8th Cir. 1994)("[I]t is

unnecessary to add a separate layer of harmless-error
analysis to an evaluation of whether a petitioner in a habeas
case has presented a constitutionally significant claim for
ineffective assistance of counsel."), cert. denied, 115 S.

Ct. 778 (1995); Smith v. Dixon, 14 F.3d 956, 974, 976 (4th

Cir.) (en banc), cert. denied, 115 S. Ct. 129 (1994).

Because we review the Confrontation Clause issue as the
district court decided it, assuming arguendo that Levasseur

excused his procedural default, we need not decide whether we
agree with our sister circuits.

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In considering Levasseur's procedurally defaulted

Confrontation Clause claim, the district court assumed

arguendo that Levasseur had excused his default and limited

its analysis to the merits of Levasseur's Confrontation

Clause claim. Specifically, the district court held that

although Inspector Guilfoyle's testimony about the blond

girl's statements was inadmissible hearsay that violated

Levasseur's Sixth Amendment right to confront his accusers,

it was harmless error. Similarly we limit our analysis to

the determination of harmless error and affirm for the

reasons that follow.

We first set forth the legal framework. The

standard here for determining whether habeas relief must be

granted because of unconstitutional trial error is the

Brecht/Kotteakos standard of harmless error. Under that

standard, an unconstitutional trial error is harmless unless

the court finds with fair assurance that the error,

considered in light of the record as a whole, "`had [a]

substantial and injurious effect or influence in determining

the jury's verdict.'" Brecht v. Abrahamson, 113 S. Ct. 1710,

1721-22 (1993) (quoting Kotteakos v. United States, 328 U.S.

750, 776 (1946)); see Kotteakos, 328 U.S. at 765 (holding

that requisite degree of certainty is "fair assurance").

Assessments of harmless error are necessarily context-

specific. Kotteakos, 328 U.S. at 762. The following

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factors, however, are relevant to our determination of

whether the jury was substantially swayed by the tainted

hearsay evidence: (1) the extent to which the error

permeated the proceeding, (2) the centrality of the issue

affected by the error to the case as actually tried and (3)

the relative strength of the properly admitted evidence of

guilt. See Brecht, 113 S. Ct. at 1722 (considering

infrequency of state's references to constitutional error and

strength of evidence of guilt as factors relevant to

assessing whether error "substantially influence[d]" jury);

Shaw v. Collins, 5 F.3d 128, 132-33 (5th Cir. 1993)

(considering centrality of the issue affected by the error to

the case as tried and finding that Confrontation Clause

violation was not harmless because tainted testimony "was the

linchpin in the State's case"). After reciting the standard

of review, we consider each factor in turn.

Because a harmless-error determination on habeas

corpus review is a mixed question of law and fact, we examine

this issue de novo. Brecht, 113 S. Ct. at 1724 (Stevens, J.,

concurring); Scarpa v. Dubois, 38 F.3d 1, 9 (1st Cir.

1994)(holding that "[i]n federal courts, mixed questions of

law and fact arising in section 2254 cases are ordinarily

subject to de novo review"), cert. denied, 115 S. Ct. 940

(1995).

1. Prevalence of the error

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The constitutional error in this case consists of

two discrete statements uttered at the end of the trial.

During his rebuttal case, the district attorney violated

Levasseur's Sixth Amendment right to confront his accusers by

eliciting from Inspector Guilfoyle the hearsay testimony

about the blond girl's statements to him. Specifically,

Guilfoyle testified that the blond girl said Levasseur had

offered her a ride and that she had said no. In his closing

argument, the district attorney paraphrased the offending

statement:

One can look at this case, and if one
adds up the facts that were proven beyond
a reasonable doubt and then add any
inferences that can be drawn from the
account with the young female on the
bridge on July 13th, with almost the same

words that were spoken to [Jane Doe]: Do

you want a ride?

(emphasis added).

Viewing these two constitutionally erroneous

statements in the context of the trial as a whole, we find

that they did not permeate the trial proceedings. During his

opening argument and throughout the presentation of his

direct case, the district attorney carefully avoided any

hearsay testimony about the blond girl's statements. The

district attorney purposefully excluded Guilfoyle--the only

witness with personal knowledge of the blond girl's

statements--from the six witnesses who testified as part of

his direct case. Only after Levasseur took the stand and

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stated that the blond girl was his cousin did the district

attorney offer Guilfoyle's hearsay evidence on rebuttal and

paraphrase it in his closing argument. At least on the facts

of this case, an error occurring in the rebuttal case and

repeated once in closing argument--comprising three lines in

a 513-page transcript--is not prevalent in the context of a

three-day trial in which the opening argument and direct case

(the first two days) are free of error. See Brecht, 113 S.

Ct. at 1722 (finding that error comprising less than two

pages of a 900-page trial transcript was not prevalent).4

4. Levasseur would have us consider every reference to the
blond-girl incident in determining prevalence. Although such
evidence is relevant to the next factor we consider,
determining the centrality of the issue affected by the
error, it is not relevant here. To determine prevalence, we
need only ask how often the error occurred. Because the
other references to the blond-girl incident in the record
were free of constitutional error, we do not consider them in
assessing the error's prevalence. For instance, when
Inspector Boutselis testified in the prosecution's direct
case about the blond-girl incident, he limited himself to
what he saw and heard transpire between Levasseur and the
blond girl. He stated that he saw Levasseur beckon to the
blond girl and heard Levasseur call, "Come on." Because this
evidence is free of constitutional error and clearly
admissible, we do not consider it in assessing the error's
prevalence.

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2. Centrality of the issue affected by the error

The issue primarily affected by the erroneous

admission of Guilfoyle's hearsay statement was the

prosecution's modus operandi theory: because Levasseur

attempted to pick up the blond girl two weeks after Doe's

rape using the same modus operandi he had used to lure Doe

into his truck, Levasseur must have raped Doe.5 Had modus

operandi been the prosecution's central theory to support

Levasseur's conviction, the constitutional error in admitting

the hearsay would likely have been fatal to the prosecution's

case and necessarily harmful. The prosecution, however, only

used the modus operandi evidence to corroborate Doe's

otherwise strong identification of Levasseur. After

considering the trial in its entirety, we find that Doe's

clear identification of Levasseur was the linchpin in the

prosecution's case, and the modus operandi evidence was

merely collateral thereto.

In his opening argument, the district attorney

concentrated exclusively on Doe's identification of

Levasseur; he did not mention the blond-girl incident. The

5. Levasseur's trial counsel failed to object under
Massachusetts' rules of evidence to the introduction of the
blond-girl incident as a prior bad act offered to show
identity (modus operandi). Because 28 U.S.C. 2254 limits

habeas corpus review of a state prisoner's conviction to
violations "of the Constitution or laws or treaties of the
United States," we consider this failure only as it
implicates the Sixth Amendment right to effective assistance
of counsel.

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bulk of the prosecution's direct case concerned Doe's

identification of Levasseur, to which four of the six

prosecution witnesses testified. The testimony of the

prosecution's first witness, Doe, centered on her ability to

view her assailant and his truck, the effect of her

consumption of two drinks on her perception, her description

of her assailant and his truck, and her identification of

Levasseur in photo arrays and in the field. Officer Mendes,

the prosecution's second witness, testified to Doe's

condition closely following the rape, concluding that she was

not intoxicated, and to her initial description of the

incident. Mr. Ralls, the third witness, gave an eyewitness

description of the truck from which he saw Doe thrown. He

also described Doe's condition immediately following the

rape, detecting no odor of alcohol. The sixth and final

witness, Inspector Boutselis, recalled Doe's detailed

description of her assailant, the truck, and the incident,

recounted five days after the rape. He also recalled Doe's

reactions to the photo arrays and the field identifications.

He then provided the only account of the blond-girl incident

in the prosecution's direct case. As previously stated, this

account was limited to what Boutselis saw and heard transpire

between Levasseur and the blond girl.

In response to Levasseur's assertion that the blond

girl was his cousin, the district attorney presented

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additional evidence illustrating modus operandi in his

rebuttal case. Finally, in his closing argument, the

district attorney referred to the blond-girl incident only

twice, focusing his comments instead on Doe's identification

of Levasseur.

The district attorney's tactical decision not to

introduce the blond-girl incident in his opening argument and

to wait until the last witness in his direct case to do so

reveals the diminished importance the prosecution placed on

the issue of modus operandi. Conversely, the primacy of

Doe's identification of Levasseur is evident throughout the

trial, being the district attorney's focus in both his

opening and closing arguments and his direct case.

3. Relative strength of the properly admitted

evidence

The final factor tests the strength of the properly

admitted evidence of guilt in deciding whether the error

substantially affected the jury. Was the properly admitted

evidence so strong that it overwhelmed the impact of the

erroneously admitted evidence? Or was the case very close,

with evidence evenly balanced on both sides, enhancing the

effect of the error on the jury's verdict? In answering

these questions, we heed Brecht's warning not to assess the

potential strength of the properly admitted evidence if

offered at a new trial but rather to assess the strength of

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the properly admitted evidence as that evidence actually was

presented at the trial. Brecht, 113 S. Ct. at 1724 (Stevens,

J., concurring) ("The habeas court cannot ask only whether it

thinks the petitioner would have been convicted even if the

constitutional error had not taken place. Kotteakos is full

of warnings to avoid that result."). We find that this

factor also militates against Levasseur and that the

prosecution's properly admitted evidence was strong enough to

minimize the impact of the erroneously admitted hearsay

testimony.

The prosecution's evidence of Levasseur's guilt,

stripped of the erroneously admitted evidence, reduces to two

broad areas of incrimination: (1) Doe's identification of

Levasseur and (2) Levasseur's encounter with the blond girl.6

We will consider the strength of each area of incriminating

evidence separately, then cumulatively, and finally we will

compare the prosecution's evidence of guilt to Levasseur's

defense.

6. No scientific evidence of Levasseur's guilt, such as a
semen specimen, exists. Doe's refusal to let anyone touch
her following the rape prevented the hospital staff from
administering a "rape kit."

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a. Doe's identification of Levasseur

As the linchpin in the prosecution's case, Doe's

identification of Levasseur is strong inculpatory evidence.

It readily satisfies all but one of the traditional indicia

of reliability that the Due Process Clause requires of

identifications. See Manson v. Brathwaite, 432 U.S. 98, 114

(1977) (setting out the factors for assessing reliability of

identification testimony). Doe had adequate opportunity to

view her assailant throughout the incident; her degree of

attention during a traumatic experience is presumed to have

been acute, despite her having consumed two drinks earlier

that evening; her prior description of her assailant

accurately fits Levasseur; when she saw Levasseur in his

truck, Doe demonstrated a high degree of certainty in

identifying him as the perpetrator (and this comes from a

woman who appreciated the gravity of the charges as

demonstrated by her refusal to identify Levasseur by his

photo alone and request to see him in person); and she never

positively identified anyone other than Levasseur throughout

the six-month investigation. Although the six-month lapse

between the rape and Doe's identification of Levasseur is

troubling, its effect is outweighed by the sheer strength and

number of the other factors.

Officer Mendes' and Inspector Boutselis' testimony

corroborated Doe's identification testimony on certain

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events, such as her initial and subsequent descriptions of

her assailant and the truck, her assertion that she was not

intoxicated, and her reactions to the photo arrays and field

identification. In addition, Mr. Ralls' eyewitness testimony

describing the assailant's truck was consistent with Doe's.

The only inroads that Levasseur's counsel was able

to make against Doe's credibility was highlighting her

failure to notice a scar on Levasseur's neck and tattoos7 on

his arm despite her testimony that Levasseur was wearing a

tanktop when he raped her. Such an oversight, however, is

understandable given the circumstances8 and would be unlikely

to undermine Doe's otherwise detailed description.

b. Levasseur's encounter with the blond girl

After removing the tainted hearsay evidence from

our consideration, we conclude that the remaining evidence

about the blond-girl incident is still moderately probative

of Levasseur's guilt. Before assessing its probative

strength, we recount the evidence as it came in at trial.

Inspector Boutselis introduced the blond-girl

incident by testifying that two weeks after Doe's rape he saw

Levasseur drive up to an approximately sixteen-year-old blond

7. Although Levasseur showed his scar to the jury, he did
not show his tattoos to the jury.

8. Discussing Doe's failure to notice Levasseur's tattoos,
the district court found it reasonable to assume that a rape
victim would focus on her assailant's face rather than on his
arms.

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girl walking on the sidewalk, beckon to her, and say "Come

on"; the young girl kept walking and did not get in the

truck. Boutselis also testified that when he and Guilfoyle

subsequently pulled Levasseur over, Levasseur told Boutselis

that the girl was his cousin and he was going to give her a

ride. When Boutselis asked Levasseur her name, Levasseur did

not answer.

Levasseur's testimony provided a different account

of the blond-girl incident. Levasseur testified that he had

been swimming with his aunt and cousin, that he had taken his

aunt home first, and that he was dropping his cousin off when

Inspectors Boutselis and Guilfoyle arrived on the scene. He

testified that his cousin's name is Tina Guillemette, she was

twenty-seven or twenty-eight years old, and he does not know

where she lives now.

Although she was not a witness to the blond-girl

incident, Levasseur's wife, Judith Levasseur, testified to

historical facts underlying Levasseur's explanation of the

incident. Judith Levasseur testified that Tina Guillemette

is Levasseur's cousin, she was approximately twenty-eight

years old on July 13, 1988, and does not look sixteen years

old. Judith Levasseur also testified that Tina Guillemette

is not a good friend of her husband's, it would be unusual

for Levasseur to go swimming with Tina Guillemette and his

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aunt, and she knows how to get to Tina Guillemette's house in

Lowell.

To rebut the Levasseurs' testimony, the district

attorney called Inspector Guilfoyle. Consistent with

Boutselis, Guilfoyle testified to seeing a young blond girl

walking on the sidewalk, Levasseur's truck pulling up next to

her, Levasseur motioning to her, and the girl continuing to

walk on. After having spoken with the blond girl in close

proximity, Guilfoyle presumed that she was sixteen or

seventeen years old.

We begin our assessment of the strength of the

blond-girl incident by noting that although the Inspectors

and Levasseur provided competing explanations of the blond-

girl incident, consideration of the nature, source and extent

of the contradictions between the stories reveals the

weakness of Levasseur's explanation. Boutselis' and

Guilfoyle's testimony, Levasseur's prior statements to the

police, and his wife's testimony all contradict Levasseur's

explanation on significant details. We briefly note each of

the contradictions.

After talking with the blond girl face-to-face,

Guilfoyle testified that the blond girl was sixteen or

seventeen years old, and Boutselis estimated that she was

sixteen after seeing her from the police car. Levasseur,

however, testified that Tina Guillemette was twenty-eight

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years old and Levasseur's wife testified that Tina

Guillemette does not look sixteen. Boutselis and Guilfoyle

both testified that Levasseur had beckoned and called "Come

on" to the blond girl, consistent with offering her a ride,

whereas Levasseur testified that he was dropping his "cousin"

off. Similarly, Guilfoyle testified that the blond girl was

walking along the sidewalk before Levasseur pulled over,

which is also inconsistent with Levasseur's claim that he was

dropping her off.

Levasseur's statement to Boutselis immediately

following the blond-girl incident contradicted his trial

testimony. Boutselis testified that when he questioned

Levasseur on the day of the blond-girl incident, Levasseur

explained his encounter with the blond girl as offering to

give his cousin a ride and he did not provide his cousin's

name when asked. However, Levasseur testified at trial that

he was dropping his cousin off and his cousin's name is Tina

Guillemette.

Most telling, perhaps, is that even Levasseur's

wife, testifying to seemingly innocuous background

information, indirectly contradicted Levasseur. While

Levasseur claimed that he had gone swimming with his aunt and

his cousin on July 13, 1988, Judith Levasseur testified that

Levasseur and Guillemette were not good friends and such an

event would have been an unusual occurrence. Similarly,

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after Levasseur testified that he did not know where Tina

Guillemette now lives, Judith Levasseur testified that she

knows how to find Guillemette. This testimony raises the

question why Levasseur would not have contacted Guillemette

to have her testify and corroborate his testimony if his wife

knows where she lives.9 Given her importance to Levasseur's

explanation of the blond-girl incident, Tina Guillemette is

notably absent.

Having noted the contradictions discounting

Levasseur's explanation, we must assess how strong Inspectors

Boutselis' and Guilfoyle's testimony about the blond-girl

incident is as evidence of Levasseur's guilt. Even without

the hearsay evidence, Boutselis' and Guilfoyle's testimony

presents circumstantial evidence that the blond girl did not

know Levasseur and he had offered her a ride. For instance,

that Levasseur did not know the blond girl can be inferred

from Boutselis' and Guilfoyle's testimony that the blond girl

kept walking, did not stop and talk with Levasseur and did

9. Although a similar question may be asked of the
prosecution regarding its failure to call the blond girl to
testify, its failure to do so seems more excusable:
Inspectors Boutselis and Guilfoyle did not get the blond
girl's name and address. After learning from the blond girl
that she did not know Levasseur and he had offered her a ride
and deducing that Levasseur was following the same modus

operandi used to lure Doe into the truck, Boutselis and

Guilfoyle immediately pursued Levasseur, who had driven away
from the scene moments before. Under these circumstances,
one can excuse Boutselis and Guilfoyle for not taking the
additional time needed to remain and obtain the blond girl's
name and address.

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not get in his truck. Similarly, that Levasseur offered the

blond girl a ride can be inferred from the testimony that

Levasseur beckoned to her and said "Come on."

These two inferential facts support the

prosecution's suggestion that, two weeks after Doe's rape,

Levasseur followed the same modus operandi with the blond

girl as was used to lure Doe into the truck. Because this

evidence makes it more probable that Levasseur raped Doe, it

is moderately probative of Levasseur's guilt.10

Considering the prosecution's case cumulatively, we

find Doe's strong identification of Levasseur corroborated by

moderately strong evidence of modus operandi. Levasseur's

defense, in contrast, is too unsound to weaken the

prosecution's case.

c. Levasseur's defense

Levasseur's defense was misidentification, and it

entailed his refutation of the charges and an alibi.

Levasseur's alibi and his refutation testimony are weak

exculpatory evidence, however, because Levasseur's alibi

witness was sleeping during the time of the disputed event,

and the district attorney impeached Levasseur's credibility.

10. This evidence becomes stronger evidence of guilt,
however, considering that the inconsistencies likely damaged
Levasseur's credibility overall and affected the other
elements of his defense, i.e., that he did not know Doe and

that he was misidentified.

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Levasseur's wife, Judith Levasseur, was his alibi

witness. She testified that on the night of the rape, she

and Levasseur obtained take-out pizza (as was their custom on

Thursday nights), drove home, ate it, watched television and

went to bed around 10:00 p.m. On cross-examination, the

district attorney elicited the following damaging

information: Judith Levasseur is a heavier sleeper than her

husband and she frequently does not awaken when he gets out

of bed during the night. Even accepting Judith Levasseur's

testimony as true, she was asleep during the hours

surrounding the incident and could not consciously account

for Levasseur's presence in bed at that time. The rape

occurred sometime after midnight, leaving Levasseur ample

time to get out of bed undetected, get dressed and reach the

scene of the incident in nearby Lowell.

On direct examination, Levasseur resolutely denied

that he had raped Doe and testified consistently with his

wife that on June 30, 1988, the night in question, they had

taken pizza home and gone to bed. On cross-examination,

however, the district attorney impeached Levasseur's

refutation. The district attorney elicited from Levasseur

that on July 13, 1988, at the police station he had told

Inspector Boutselis that at 9:00 p.m. on June 30, 1988, he

could have been driving around downtown Lowell, but he was

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not sure.11 Levasseur admitted that he only became sure

about his whereabouts after he spoke with his wife and her

immediate family. Levasseur conceded, however, that his in-

laws were not with Levasseur and his wife on June 30, 1988.

Therefore, their assistance in reconstructing his whereabouts

is dubious.

In addition to the impeachment of Levasseur's

testimony about the blond-girl incident, the district

attorney also impeached Levasseur's credibility more

generally with another logical inconsistency. Levasseur

testified on direct that he had offered to give Inspector

Boutselis a sperm sample while he was at the police station

on July 13, 1988. On cross-examination, however, Levasseur

conceded that as of July 13, 1988, the police had not

specifically informed him that he was suspected of rape; they

had only made vague references to abusing some girl and

claims of sexual harassment. With this line of questioning,

the district attorney implied that Levasseur disclosed a

guilty mind by offering a sperm sample when all that was

charged was battery and sexual harassment, neither of which

necessarily involve the ejaculation of semen.

11. In contrast, Boutselis testified that Levasseur had told
him that "he was in the Lowell area, the downtown area from
9:00 p.m. on, but he couldn't recall his exact whereabouts or
account for his exact whereabouts."

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Given the inability of Levasseur's alibi witness to

vouch for his whereabouts and the widespread impeachment of

Levasseur's testimony, Levasseur's shaky defense case helped

the prosecution's case more than it hurt it. After comparing

the prosecution's case to Levasseur's defense, we conclude

that the strength of the prosecution's remaining evidence of

guilt, relative to Levasseur's defense, minimizes the impact

of the improperly admitted evidence on the jury's verdict.

Having determined that the error did not permeate

the record, the issue affected by the error was not central

to the prosecution's case, and the prosecution's case minus

the inadmissible evidence was strong, we find with fair

assurance that, in light of the record as a whole, the

Confrontation Clause violation did not substantially

influence the jury's verdict, and therefore it was harmless.

We now turn to Levasseur's remaining arguments.

C. Pre-trial Identification

Levasseur also contends that the district court

erred by holding that Doe's December 17, 1988, identification

of him in his truck one-half mile from his home was not

unduly suggestive and did not violate the Due Process Clause.

We disagree and affirm for the reasons set forth in the well-

reasoned opinion of the district court below. Levasseur v.

Pepe, No. 93-10832-DPW, slip op. at 14-22 (D. Mass. Feb. 28,

1995). Careful review of the record convinces us that the

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district court was correct in finding that Doe's

identification of Levasseur, under the totality of the

circumstances, possessed sufficient indicia of reliability,

as we discussed in section B.3.a. supra, and that counsel's

failure to object to the identification was not ineffective

assistance of counsel.

D. Ineffective Assistance of Counsel

Levasseur contends that the district court erred in

concluding that Levasseur was not denied effective assistance

of counsel when his trial counsel failed to object to the

hearsay testimony of the blond girl, failed to object to the

testimony of Levasseur's prior bad acts offered solely to

impugn his character, failed to object to the jury

instruction on identification, and failed to call a rebuttal

witness claiming to be the blond girl. We disagree and

affirm for the reasons set forth in the opinion of the

district court below. Levasseur v. Pepe, No. 93-10832-DPW,

slip op. at 27-32 (D. Mass. Feb. 28, 1995). Careful review

of the record convinces us that the district court was

correct to find that only one of the alleged errors amounted

to deficient performance--the failure to object to the

hearsay testimony of the blond girl--but that no actual

prejudice resulted therefrom.

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II.

CONCLUSION

In sum, we find that Levasseur procedurally

defaulted on his Due Process Clause and Confrontation Clause

claims; the Confrontation Clause violation was harmless

error; the pre-trial identification procedure was not unduly

suggestive and counsel's failure to object to the

identification was not ineffective assistance of counsel; and

Levasseur was not denied effective assistance of counsel.

For the reasons articulated, the district court did

not err in denying the application for habeas relief. The

district court's judgment is affirmed.

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