Evans v. Verdini ( 2006 )

United States Court of Appeals
For the First Circuit
No. 05-2272
JOHN EVANS,
Petitioner, Appellant,
v.
PAUL VERDINI,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
Emanuel Howard for petitioner.
Susanne G. Reardon, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief, for respondent.
October 18, 2006
LYNCH, Circuit Judge. John Evans was convicted in
Massachusetts state court of the first-degree murder of Lyle
Jackson and was sentenced to life in prison. His conviction was
affirmed by the Massachusetts Supreme Judicial Court (SJC). See
Commonwealth v. Evans, 786 N.E.2d 375, 380 (Mass. 2003). His
subsequent petition in federal district court for a writ of habeas
corpus was denied. See Evans v. Verdini, No. Civ.A. 04-10323, 2005
WL 1638119, at *3 (D. Mass. Jul. 13, 2005).
Evans appeals from that denial. He argues that the
exclusion of certain defense witness testimony concerning a
recanted prior statement violated his Sixth Amendment right to
present a defense. He also argues that the state prosecutor
violated the rule that a prosecutor may not impeach his own witness
as a ploy for the introduction of inadmissible evidence, and that
this violated his Sixth Amendment Confrontation Clause rights.
These arguments cause us to explore the topic of impeachment and
recanted statements.
We reject Evans's claims and affirm the district court's
denial of the petition.
I.
We briefly recount the facts as recited in detail in
Commonwealth v. Evans, 786 N.E.2d at 381.
In the early morning of January 25, 1995, Jackson and his
friend, Marcello Holliday, were at Cortee's, a nightclub in the
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Dorchester area of Boston. Evans also was at Cortee's with his
brother Jimmy Evans (Jimmy) and two friends, Robert Brown and
Ronald Tinsley. Around 1:45 a.m., Jackson and Holliday left
Cortee's for Walaikum's, a nearby restaurant. They arrived at
approximately 2:20 a.m. About fifteen minutes later, Evans, his
brother, Brown, and Tinsley entered Walaikum's, then crowded with
customers. Evans, Jimmy, Brown, and Tinsley left after a minute or
so, but quickly reentered the restaurant. Tinsley began talking
with a young woman, and Brown said to Evans and Jimmy, "That's one
of them right there." After verifying that Brown was referring to
Jackson, Jimmy drew a gun and approached Jackson, who backed away,
stumbled, crawled into a corner, and began begging for his life.
Jimmy then shot at Jackson four or five times. After seeing Jimmy
shoot at Jackson, Willy Wiggins, who owned Walaikum's, went to the
back of the restaurant and called the police.
Alton Clarke, another customer, tried to leave the
restaurant and was confronted by Evans, who also was armed with a
handgun. Evans allowed Clarke to leave once he stated that he had
nothing to do with Jackson. Evans then approached Jackson and shot
at him once.
Evans, Jimmy, Brown, and Tinsley left Walaikum's, and a
car chase ensued. All four were apprehended by police after they
turned into a dead-end street and tried to flee on foot.
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Jackson died from an infection related to his gunshot
wounds. He had been shot three times.
The Evans brothers, Brown, and Tinsley were charged with
murder by joint venture and tried together before a jury. At
trial, the government introduced the testimony of Marvette Neal,
who knew Jackson, Evans, and Jimmy. Neal had told police
approximately two weeks after the shooting that he had seen both
Evans and his brother shoot at Jackson in Walaikum's. Later that
month, however, when he testified before the grand jury considering
the charges against Evans, Neal stated only that he had seen Evans
and Jimmy inside Cortee's and Walaikum's. By the time of Evans's
trial, in the fall of 1996, Neal had backed further away from his
initial statement. During voir dire, Neal stated that he could
recall no more than that he had seen Jackson at Cortee's and
Walaikum's. He testified that he did not remember making his prior
statement to police, that he did not see Evans or Jimmy shoot
Jackson, and that he did not tell police anything to that effect.
After voir dire, the prosecution proceeded with Neal as
a witness; Neal testified before the jury that he could not recall
having seen Evans or Jimmy at Cortee's or Walaikum's on the night
in question. The trial judge, over objection, permitted the
government to introduce Neal's grand jury testimony to the contrary
as substantive evidence. The government also was permitted, again
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over objection, to lay a foundation to impeach Neal with his prior
inconsistent statement to the police.
The defense then cross-examined Neal. In particular,
Evans's counsel asked Neal whether he had seen Evans or his brother
with a gun on the night of the shooting. Neal testified that he
had not.
The next day, the government called Detective Kenneth
Dorch, who had taken Neal's initial statement. Detective Dorch
testified to Neal's prior inconsistent statement -- that is, that
Neal had told him that he had seen Evans shoot at Jackson. The
trial judge instructed the jury six times during Detective Dorch's
testimony that the prior statement was admitted only for the
purpose of impeachment and was not to be considered substantive
evidence.
During his defense case, Evans sought to introduce the
testimony of Eddie Hawkins, who had shared a jail cell with Tinsley
after the shooting. Hawkins had made a pre-trial statement to
police that Tinsley, while in jail, had admitted to shooting
Jackson and had acknowledged that he had intended to accept a plea
bargain until he learned that the Commonwealth could place him only
in the getaway car and not in Walaikum's. However, during voir
dire Hawkins repudiated his prior statement about Tinsley's
confession and stated that he had fabricated the story of the
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confession1 to gain more favorable treatment in his own pending
case. As a result of Hawkins's voir dire testimony, the trial
judge ruled that Evans's attorney could not question Hawkins about
his conversation with Tinsley other than to ask whether they had
discussed the pending charges against Tinsley. Evans then opted
not to call Hawkins.
On November 8, 1996, Evans was convicted of first-degree
murder on theories of deliberate premeditation and extreme atrocity
and cruelty.2 He also was found guilty of two charges of illegally
possessing ammunition, one charge of illegally discharging a
firearm within five hundred feet of a building, two charges of
illegally possessing a firearm, two charges of assault and battery
with a dangerous weapon, and various motor vehicle charges. The
trial judge sentenced Evans to a mandatory term of life
imprisonment on the murder conviction, and to concurrent terms of
four to five years for the illegal possession of a firearm and
assault and battery convictions. The other convictions were placed
on file with Evans's consent.
Evans filed a timely notice of appeal and a motion for a
new trial. The motion for a new trial was denied, and Evans
1
Hawkins did not recant his statements about Tinsley's
having changed his mind about accepting a plea bargain.
2
Jimmy also was convicted. Brown and Tinsley were
acquitted.
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appealed. His direct appeal to the SJC was consolidated with his
appeal from the denial of his motion for a new trial. The SJC
affirmed the convictions and the denial of the motion for a new
trial. Evans, 786 N.E.2d at 380. Evans then filed a habeas
petition in federal district court. The petition was denied. See
Evans, 2005 WL 1638119, at *3. A certificate of appealability was
granted as to two issues.
II.
Review of the district court's denial of habeas relief is
de novo. Norton v. Spencer, 351 F.3d 1, 4 (1st Cir. 2003). To
state a federal habeas claim concerning a state criminal
conviction, the petitioner must allege errors that violate the
Constitution, laws, or treaties of the United States. Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991); see also 28 U.S.C.
§§ 2241(c)(3), 2254(a). "[F]ederal habeas corpus relief does not
lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780
(1990).
Federal habeas review of the state court's decision is
governed by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. Under AEDPA,
habeas relief is unavailable on federal claims "adjudicated on the
merits in State court proceedings" unless the state court's
decision "was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme
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Court of the United States" or "was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding." 28 U.S.C. § 2254(d). Under our
circuit law, federal claims "raised before the state court but
. . . left unresolved" are reviewed de novo. Lynch v. Ficco, 438
F.3d 35, 44 (1st Cir. 2006) (quoting Horton v. Allen, 370 F.3d 75,
80 (1st Cir. 2004)) (internal quotation marks omitted); accord
Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001) ("AEDPA imposes
a requirement of deference to state court decisions, but we can
hardly defer to the state court on an issue that the state court
did not address.").
III.
A. Challenges Based on the Rule that a Prosecutor Cannot
Impeach His Own Witness as a Pretext for Placing
Inadmissible Evidence Before the Jury
We start with Evans's strongest claim. Evans's habeas
petition makes three arguments related to Neal. Taking the fact
that Neal's voir dire testimony showed that he would testify that
he recalled essentially nothing of importance to the prosecutor,
Evans argues (1) Neal himself should never have been allowed to
testify, (2) Neal's grand jury testimony that he had seen Evans at
Walaikum's should not have been admitted, and (3) Detective Dorch
should not have been allowed to testify that Neal had told the
police that he (Neal) had seen Evans and his brother shoot Jackson
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at Walaikum's. Evans asserts that his rights under the
Confrontation Clause were violated.
Violation of a rule of evidence does not itself amount to
a constitutional violation, which is a necessary predicate for a
habeas claim. Kater v. Maloney, 459 F.3d 56, 64 (1st Cir. 2006).
Still, on the facts of a given case, an evidentiary error may
result in such fundamental unfairness to the defendant as to
constitute a due process violation. See, e.g., Chambers v.
Mississippi, 410 U.S. 284 (1973).
Another necessary predicate for habeas relief is that the
claims presented in the federal habeas case have first been
presented to the state court. See 28 U.S.C. § 2254(b), (c); Picard
v. Connor, 404 U.S. 270, 275 (1971). The first argument -- that
Neal should not have been allowed to testify at all after his voir
dire disclaimer of his prior statements -- was not presented to the
SJC and so is not before us.
The second argument -- that the grand jury minutes should
not have been admitted -- was presented to the SJC. The SJC agreed
with Evans that those minutes did not meet the requirements of the
past recollection recorded exception to the hearsay rule. Evans,
786 N.E.2d at 382-83. It also held that the evidence was not
substantively admissible under a state law rule pertaining to
falsely testifying about a lack of memory because there was no
finding by the trial judge that the claimed lack of memory was
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fabricated. Id. at 383. The SJC held, nonetheless, that the error
in admitting the grand jury testimony was harmless, given that the
defendants and another witness had testified that Evans was at
Walaikum's on the night in question. Id. This ruling was
unassailable, and habeas relief thus is not warranted. See Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993) (holding that a petitioner
is entitled to habeas relief on the basis of a trial error only if
that error "'had [a] substantial and injurious effect or influence
in determining the jury's verdict'" (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946))); see also Petrillo v. O'Neill,
428 F.3d 41, 44-45 (1st Cir. 2005) (applying Brecht post-AEDPA).
The most significant of Evans's claims, at least in
theory, is the third: that the prosecution engaged in a subterfuge
to get into evidence Neal's prior statement to the police that he
had seen Evans shoot at Jackson. The prosecution had no other
witness who said as much, and the defendant testified that he had
not shot Jackson.
Evans's best arguments are grounded in the line of cases
holding that "a criminal prosecutor may not employ a prior
inconsistent statement to impeach a witness on a 'mere subterfuge'
or for the 'primary purpose' of placing before the jury substantive
evidence which is otherwise inadmissible." 1 Broun et al.,
McCormick on Evidence § 38, at 168 (6th ed. 2006) (emphasis
omitted). Of course, there is no general prohibition in the
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Constitution on a party impeaching its own witness. Cf. Fed. R.
Evid. 607; Mass. Gen. Laws ch. 233, § 23. In criminal cases,
however, such impeachment may trigger Due Process and Confrontation
Clause concerns.
This rule imposing constraints on prosecutors is widely
accepted. See, e.g., United States v. Gilbert, 57 F.3d 709, 711
(9th Cir. 1995) ("'[T]he government must not knowingly elicit
testimony from a witness in order to impeach him with otherwise
inadmissible testimony.'" (quoting United States v.
Gomez-Gallardo, 915 F.2d 553, 555 (9th Cir. 1990))); United States
v. Patterson, 23 F.3d 1239, 1245 (7th Cir. 1994) ("[T]he
prosecution may not 'call a witness that it [knows will] not give
it useful evidence, just so it [can] introduce hearsay evidence
against the defendant in the hope that the jury [will] miss the
subtle distinction between impeachment and substantive evidence."
(second and third alterations in original) (quoting United States
v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984))); United States v.
Morlang, 531 F.2d 183, 189 (4th Cir. 1975) (stating that the
government must not, "in the name of impeachment, . . . present
testimony to the jury by indirection which would not otherwise be
admissible").
The rule has several components, usually articulated as
requiring a showing of "mere subterfuge" or "primary purpose" by
the prosecutor in eliciting the testimony. Those requirements, in
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turn, lead to further inquiry. Application of the "mere
subterfuge" or "primary purpose" doctrine focuses on the entire
content of the witness's testimony, not just the challenged
statement. If the testimony as a whole is useful on any fact of
consequence, then the witness may be impeached on any other matter
testified to by means of a prior inconsistent statement. 1 Broun
et al., supra, § 38, at 168-69; accord United States v. Kane, 944
F.2d 1406, 1412 (7th Cir. 1991) ("When a government witness
provides evidence both helpful and harmful to the prosecution, the
government should not be forced to choose between the Scylla of
foregoing impeachment and the Charybdis of not calling the witness
at all."). The claim here is that Neal's testimony was not useful
to the prosecutor on any matter of consequence, and that Neal was
called as a subterfuge to get into evidence his prior hearsay
statement.
There is an initial question of whether this claim, which
was presented to the SJC, was presented as a matter of federal
constitutional law. The Commonwealth concedes that this exhaustion
question is very close and difficult. We bypass this issue because
it is clear Evans would fail on this claim, even if it had been
presented in constitutional terms to the SJC and even if we gave no
deference to the SJC's decision. See Fortini, 257 F.3d at 47.
As the SJC noted, Evans's argument has some initial
appeal, but it ignores one important fact. See Evans, 786 N.E.2d
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at 384. Our turning point (as was the SJC's) is that it was the
defense's cross examination of Neal, not the Commonwealth's direct
examination, that created the basis for the admission into evidence
of Neal's prior inconsistent statement. It was defense counsel
who, on cross examination, asked Neal if he had ever seen Evans
with a gun in his hand on January 24 or 25. When Neal said he had
not, the door was open for the prosecution to impeach Neal's
testimony with his statement to Detective Dorch that he had seen
Evans shoot Jackson. There was no violation of the rules of
evidence, much less a violation of constitutional rights.3
B. Challenge Based on the Exclusion of Hawkins's Testimony
Evans's second argument is that he should have been
permitted to question Hawkins about his earlier conversation with
Tinsley, which the trial court excluded. He argues that because
Hawkins's prior statement to the police (that Tinsley had
confessed) supported the defense's theory of the case (that
Tinsley, not Evans, had been the second shooter), defense counsel
should have been permitted to question Hawkins about the portion of
the conversation concerning Tinsley's supposed confession and to
impeach Hawkins with his prior statement to the police.4 Evans
3
Evans argues that his counsel was required, as a zealous
advocate, to cross-examine Neal. Because Neal offered no testimony
of any value to the prosecution, however, this argument is without
merit.
4
Evans also contests the exclusion of those parts of
Hawkins's reported conversation with Tinsley that Hawkins did not
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argues that in limiting Hawkins's testimony by precluding questions
about the confession,5 the trial judge violated his (Evans's) Sixth
Amendment compulsory process rights.
The question was presented to and ruled on by the SJC.
The SJC ruled that the trial judge could have properly concluded,
based on Hawkins's voir dire, that Hawkins would offer no relevant
testimony if called. Id. at 385. In addition, it held that
Hawkins's prior statement was inadmissible hearsay, and that Evans
had not shown it to be inconsistent with any relevant testimony
that Hawkins would have given. Id. Moreover, the SJC ruled that
the defense was not permitted to call Hawkins just so it could
impeach him with an otherwise inadmissible prior statement. Id.
Finally, the SJC held that given Hawkins's repudiation of his prior
statement, it was hardly apparent that the statement, although
hearsay, was so reliable and trustworthy that its exclusion
interfered with Evans's constitutional right to present a defense.
Id. Our inquiry is whether the SJC's conclusions involved an
repudiate (that is, that Tinsley was planning to enter into a plea
bargain until he realized that the police might be unable to place
him at the scene). Any error with respect to the exclusion of such
testimony was harmless. See Brecht, 507 U.S. at 637-38.
5
To be clear, the court permitted Evans to call Hawkins
but precluded questions about the conversation with Tinsley other
than to say that a conversation had occurred. Evans then decided
not to call Hawkins. As the astute federal habeas judge pointed
out, Hawkins was permitted to testify, but not about a statement he
had just sworn was untrue. See Evans, 2005 WL 1638119, at *2.
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unreasonable application of clearly established federal law as
interpreted by the Supreme Court. 28 U.S.C. § 2254(d).
"A defendant's right to present relevant evidence is not
unlimited, but rather is subject to reasonable restrictions."
United States v. Scheffer, 523 U.S. 303, 308 (1998); see also
Taylor v. Illinois, 484 U.S. 400, 410 (1988) ("The accused does not
have an unfettered right to offer testimony that is incompetent,
privileged, or otherwise inadmissible under standard rules of
evidence."); Rock v. Arkansas, 483 U.S. 44, 55 (1987) ("Of course,
the right to present relevant testimony is not without limitation.
The right 'may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process.'" (quoting
Chambers, 410 U.S. at 295)). As long as they are not "arbitrary or
disproportionate to the purposes they are designed to serve,"
limitations on the admissibility of evidence do not violate a
defendant's right to present a defense. Rock, 483 U.S. at 56; see
also Scheffer, 523 U.S. at 308. Hawkins's prior statement was
hearsay not within any exception and was therefore not
independently admissible. See Commonwealth v. Semedo, 665 N.E.2d
638, 646 (Mass. 1996).
Evans argues that even if the prior statement was not
substantively admissible, he should have been permitted to use it
for impeachment purposes. He argues that it was particularly
unfair to exclude Hawkins's testimony after he had recanted, but to
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permit Neal, who also had recanted, to testify. Moreover, Evans
emphasizes that although it was the prosecution that sought to
present Neal's prior statement, here it was the defendant who
sought to impeach Hawkins, and that denying him the opportunity to
do so impaired his Sixth Amendment right to present a defense.6 In
theory at least, a defendant may have a viable claim that "applying
the rule [against impeachment of one's own witness] to prevent him
from mounting a critical attack on a key defense witness is
unconstitutional." 1 Broun et al., supra, § 39, at 169; see
Imwinkelried & Garland, Exculpatory Evidence: The Accused's
Constitutional Right To Introduce Favorable Evidence § 8-2, at 260-
61 (3d ed. 2004).
There are material differences between the two
situations, however, apart from the fact that the prior
inconsistent statement by Neal came in because the defense opened
the door. There was a difference in the reliability of the two
statements. Hawkins was not a first-hand witness to the shooting,
but purported to repeat a statement by Tinsley that confessed that
6
Massachusetts seems to have adopted a broader rule that
no party (not just prosecutors) has a statutory right "to call a
witness whom he knows beforehand will offer no testimony relevant
to an issue at trial solely for the purpose of impeaching that
witness with prior inconsistent statements that would otherwise be
inadmissible." Commonwealth v. McAfee, 722 N.E.2d 1, 8 (Mass.
1999). Our concern is only whether this state evidentiary rule as
applied to Hawkins constituted a deprivation of federal
constitutional rights so as to render the SJC's opinion an
unreasonable application of the pertinent law.
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Tinsley had shot Jackson. Hawkins then told the trial judge on
voir dire that Tinsley had never made a confession. Hawkins said
he made up the whole thing in order to curry favor with the
police.7 By contrast, Neal's recantation by loss of memory could
easily be taken as a fabrication.
As the SJC held, the state trial judge correctly found
that the recently recanted prior statement was not "so reliable and
trustworthy that, although hearsay, its exclusion might offend
[Evans's] constitutional right to present a defense." Evans, 786
N.E.2d at 385. The SJC's holding was not an unreasonable
application of law for habeas purposes.
The dismissal of the petition for habeas corpus is
affirmed.
7
"The hearsay rule, which has long been recognized and
respected by virtually every State, is based on experience and
grounded in the notion that untrustworthy evidence should not be
presented to the triers of fact." Chambers, 410 U.S. at 298.
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