Pettiway v. Vose

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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