UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1482
ANSLEY PETTIWAY,
Plaintiff - Appellant,
v.
GEORGE A. VOSE, ET AL.,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Tauro,* District Judge.
Janice M. Weisfeld, Assistant Public Defender, for
appellant.
Andrea J. Mendes, Special Assistant Attorney General, with
whom Jeffry B. Pine, Attorney General, was on brief for appellee.
November 12, 1996
* Of the District of Massachusetts, sitting by designation.
TORRUELLA, Chief Judge. Defendant-Appellant Ansley S.
TORRUELLA, Chief Judge.
Pettiway, Jr. ("Pettiway") was tried and convicted of one count
of first degree child molestation sexual assault, R.I. Gen. Laws
11-37-8.1, and one count of second degree child molestation
sexual assault, R.I. Gen. Laws 11-37-8.3. He was also
acquitted of two counts of first degree and one count of second
degree child molestation sexual assault. Pettiway unsuccessfully
appealed his conviction to the Rhode Island Supreme Court, State
v. Pettiway, 657 A.2d 161 (R.I. 1995), and then filed for a writ
of habeas corpus in the United States District Court for the
District of Rhode Island, Pettiway v. Vose, 921 F. Supp. 61 (D.
R.I. 1996). When the district court denied the writ, Pettiway
filed this appeal.
I. STANDARD OF REVIEW
I. STANDARD OF REVIEW
Our review of a harmless error determination on habeas
corpus review is de novo. See Scarpa v. Dubois, 38 F.3d 1, 9
(1st Cir. 1994) ("mixed questions of law and fact arising in
section 2254 cases are ordinarily subject to de novo review");
Levasseur v. Pepe, 70 F.3d 187, 193 (1st Cir. 1993) ("a harmless
error determination on habeas corpus review is a mixed question
of law and fact [and] we examine this issue de novo"). Findings
of fact by the state court, however, are entitled to great
deference on federal habeas review. See 28 U.S.C. 2254(d); Tart
v. Commonwealth of Massachusetts, 949 F.2d 490, 504 (1st Cir.
1990).
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II. BACKGROUND
II. BACKGROUND
The principal facts of this case are summarized in the
opinion of the state Supreme Court on direct review, State v.
Pettiway, 657 A.2d 161 (R.I. 1995), and the opinion of the
federal district court on collateral review, Pettiway v. Vose,
921 F. Supp. 61, 61-62 (D. R.I. 1996), therefore, we present only
a brief factual review. At trial, Pettiway was not permitted to
enter into evidence a report of the Department of Children,
Youth, and Families ("DCYF") which included allegations that the
victim had been sexually abused by two other men whom her mother
had brought home. These incidents were alleged to have taken
place subsequent to the abuse by defendant. See State v.
Pettiway, 657 A.2d at 163. In addition to the testimony of the
victim, the prosecution relied on a written confession and the
testimony of two police detectives who stated that Pettiway made
an oral confession. Such other facts as may be pertinent will be
discussed as they arise in this opinion.
III. LEGAL ANALYSIS
III. LEGAL ANALYSIS
On direct review, the Rhode Island Supreme Court held,
and neither party disputes, that the trial court's ruling
limiting Pettiway's ability to cross-examine the complaining
witness violated Pettiway's Sixth Amendment right to
confrontation. See State v. Pettiway, 657 A.2d at 163-64. The
state Supreme Court also concluded, however, that the denial of
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Pettiway'sright to confrontation was harmless error. Id. at 164.
We now review Pettiway's petition for habeas corpus.
In order to prevail Pettiway must show that the trial-type
constitutional 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, 507 U.S.
619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946)). In Bowling v. Vose, 3 F.3d 559 (1st Cir.
1993), this Court stated that "the inquiry entails a
determination of the exact nature and force of [the] proposed
testimony and an effort to place [the] testimony within the
context of the evidence as a whole. In short, the weight of
[the] testimony must be balanced against the weight of the
inculpatory evidence." Id. at 563.1 Relevant factors to be
considered in determining whether the jury was substantially
swayed by the error include: "(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."
1 Neither party mentioned in its brief or at oral argument the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, 110 Stat. 1218, which amends the habeas corpus
provisions of 28 U.S.C. 2254. We need not, however, attempt to
navigate the amended statute in this case. Using the pre-
amendment habeas corpus requirements established by this Court,
we find that defendant-appellant's request for relief must be
denied. Because the amendments make habeas corpus relief more
difficult to obtain, the result would be the same whether or not
the amendments are relevant to this case and whether or not they
affect our inquiry.
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Levasseur, 70 F.3d at 193. We will follow the approach adopted
in Levasseur, considering each of the factors in turn.
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IV. DISCUSSION
IV. DISCUSSION
A. Prevalence of the error
A. Prevalence of the error
The constitutional error in this case was the
limitation of Pettiway's right to cross-examine the victim. The
victim was interviewed by a child protective investigator for the
DCYF in September 1992, after the indictment of Pettiway, but
prior to his trial. During that interview, she reported that she
had been sexually abused by two other men that her mother had
brought home. These incidents occurred subsequent to the alleged
sexual abuse by Pettiway, and have been neither prosecuted nor
proven false. See State v. Pettiway, 657 A.2d 161, 163 (R.I.
1995).
Pettiway was not permitted to introduce the DCYF report
at trial, nor was he permitted to cross-examine the victim about
the allegations contained therein. Id. Defendant-appellant was,
however, permitted to
confront Melissa, his accuser, and
challenge her credibility. Indeed . . .
[the] trial justice gave defense counsel
wide latitude to cross-examine Melissa
fully in regard to the matters she
testified to on direct-examination and
. . . to explore in depth Melissa's
memory about the incidents of abuse and
her reasons for not reporting the abuse
sooner.
Id. at 164.
Pettiway claims that the excluded evidence would have
enabled him to challenge the credibility of the victim by
demonstrating a pattern of accusing her mother's boyfriends of
sexual abuse.
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B. Centrality of the issue affected by the error
B. Centrality of the issue affected by the error
By limiting the cross examination of the victim,
Pettiway claims, the trial justice affected the defense's ability
to challenge her credibility. We recognize that this case was,
in part, a credibility contest between the victim and Pettiway.
In this sense, the right to confront and attempt to impeach the
victim was central to the defense. Our inquiry does not end with
this determination, however. It is not enough to simply say that
credibility was an important question, we must also consider the
impact of the error on the credibility issue.
We are not persuaded that testimony to the effect that
the victim claimed to have been abused by other men -- an
allegation that is very possibly truthful -- would have
substantially affected the jury's credibility assessment.
Indeed, it is possible that such testimony would have emphasized
to the jury the lack of parental supervision in the household and
made them more inclined to believe the testimony of the victim.
Furthermore, Pettiway has pointed to no place in the record, and
has made no argument, to the effect that the allegations made by
the victim were false. Nor did he give any indication that he
intended to discredit those allegations in court. His current
position appears to be that the mere mention of other allegations
of abuse, without any evidence that those allegations were false,
would sway the jury to the point of disregarding the entire
testimony of the victim.
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We also note that Pettiway was not foreclosed from
challenging the victim's credibility, but was only prevented from
pursuing questions pertinent to the DCYF report. It is simply
too large an inferential leap for this Court to conclude that the
admission of this evidence could have had a "substantial and
injurious effect or influence in determining the jury's verdict."
Brecht v. Abrahamson, 507 U.S. 619, 637 (1992).
C. Relative Strength of the properly admitted evidence
C. Relative Strength of the properly admitted evidence
The final factor in the Levasseur test requires us to
examine the strength of the properly admitted evidence of guilt
and determine whether "the error substantially affected the jury.
Was the properly admitted evidence so strong that it overwhelmed
the impact of the [error]?" Levasseur, 70 F.3d at 195. We
conclude that it was. The evidence admitted at trial consisted
of: (1) the testimony of the victim; (2) the testimony of two
police officers that defendant made an oral confession; and (3)
defendant's written confession. See Pettiway v. Vose, 921 F.
Supp. at 63.
The victim testified to eleven incidents of sexual
molestation. She detailed one incident during which Pettiway
touched her breast and penetrated her vagina with his fingers,
and she mentioned several other, more general allegations of
molestation. Id. Both detectives testified that Pettiway
admitted to sexually touching and digitally penetrating the
victim. Id. In his written confession, Pettiway admitted to one
act of touching the victim's breast and one act of penetrating
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her vagina, and stated that he touched her on three other
occasions. The important point for present purposes is the fact
that the confessions and the victim's testimony all relate the
same incidents of touching in detail -- one touching of the
breast and one act of vaginal penetration. Beyond these two
events, the testimony and the written confession are both vague.
The court submitted five counts of sexual abuse to the
jury, and the jury returned guilty verdicts on two. Id. at 64.
Pettiway points out that the jury's verdict mirrors the victim's
testimony and contends that the jury relied solely on this
testimony and disregarded the allegedly coerced confession. In
light of this fact, the defendant's theory goes, an error
limiting his ability to impeach the credibility of the victim
cannot be harmless. Appellee responds that the jury verdict
mirrors the written confession and claims that it is this
evidence that the jury found compelling. As a result, appellee
argues, the error is harmless because it relates only to the
testimony of the victim.
We disagree that the verdict reflects a disregard for
Pettiway's confession. The written confession, the oral
confession, and the testimony of the victim were substantially
similar. This collection of evidence from the two most reliable
sources possible -- the victim and the accused -- is extremely
persuasive and the error in this case is simply not consequential
enough to undermine this evidence. First, as pointed out above,
there is serious doubt about the probative value of the evidence
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that Pettiway sought to introduce. Second, even if some doubts
about credibility could have been placed in the minds of the
jury, the oral and written confessions cannot so easily be
overcome. They provide substantial corroboration of the victim's
testimony and strong support for the verdict returned by the
jury. Despite the attempts of both parties to present the jury's
deliberations as focusing on only one piece of evidence, we see
no reason why this must be so. The evidence, taken as a whole,
is consistent and strongly supports the guilty verdicts. Even if
the victim's testimony had been called into question -- an
outcome that strikes us as unlikely -- the oral and written
confessions provide sufficient evidence of guilt and
corroboration of the testimony to conclude that the error was
harmless.
We also feel compelled to address Pettiway's claim that
the oral and written confessions were coerced. This issue was
specifically addressed by the state court. The trial justice,
after a detailed inquiry into the claim of coercion and after
hearing evidence on the issue from both sides, wrote:
I do not believe that this defendant
asked for an attorney in that
interrogation room. I don't believe he
asked for a telephone call, nor do I
believe he asked to stop the
interrogation.
I find . . . first the verbal
statements, then the written statements,
were made with full consent of the will
and knowingly and intelligently waving
[sic] all his constitutional rights and
that the State has now in my opinion
proven . . . beyond a reasonable doubt
. . . [that] the statements attributable
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to the defendant were voluntarily [sic]
and not of any coercion and that he was
afforded all of his constitutional rights
and he knowingly, intelligently, waived
his rights.
Trial Transcript I at 133-34.
Such a finding of fact by the state court is entitled
to great deference. See 28 U.S.C. 2254(d); Tart v. Commonwealth
of Massachusetts, 949 F.2d 490, 504 (1st Cir. 1990); Tavares v.
Holbrook, 779 F.2d 1, 3 (1st Cir. 1985). On habeas corpus
review, we overturn such a finding of fact only if we "conclude[]
that such factual determination is not fairly supported by the
record." 28 U.S.C. 2254(d).
We find, upon our own review of the record, that we
must adopt this finding of fact. Pettiway claims that he was
"under a lot of pressure . . . from the doctor" because he had
"adult acne" and was taking tetracycline, yet he failed to
introduce any evidence that this medication would affect his
judgment. At trial, he admitted that he was told of his Miranda
rights, and that he understood that he did not have to answer any
questions. Despite the fact that he understood these rights, he
testified that he began to write the written confession only "a
couple of minutes" after being advised of those rights. With
reference to the written confession, he stated that he "wrote
everything that they told [him] to write." Trial Transcript I at
103. Yet only a few pages later in the transcript, he states
that he "can't even be sure" that he wrote the confession. Id.
at 106. If the defendant was aware of his rights, why was it so
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easy for the detectives to coerce his confession? How could it
be that "his will was completely overborne," Brief of Appellant
at 4, when the entire interrogation lasted only one hour? If he
claimed to have been coerced into writing the confession, why did
he then express doubt about having written it? Upon review of
the record, we conclude that there is ample support in the record
for the findings of the trial court with respect to Pettiway's
allegation of a coerced confession.
V. CONCLUSION
V. CONCLUSION
We conclude, therefore, that the Sixth Amendment
violation was harmless error and we affirm the district court's
affirm
dismissal of the habeas corpus petition. The oral confession,
the written confession, and the testimony of the victim amount to
a powerful body of evidence. We do not believe that the
admission of allegations made by the victim about other incidents
of abuse could have overcome this evidence. The error did not
have a "substantial and injurious effect or influence in
determining the jury's verdict." Brecht, 507 U.S. at 623.
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