Cairns v. Johnson , 267 F. App'x 240 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6803
ROBERT CAIRNS,
Petitioner - Appellant,
versus
GENE M. JOHNSON, Director, Virginia Department
of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. M. Hannah Lauck, Magistrate
Judge. (3:05-cv-00396-MHL)
Argued: December 4, 2007 Decided: February 26, 2008
Before NIEMEYER and GREGORY, Circuit Judges, and James P. JONES,
Chief United States District Judge for the Western District of
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Jones wrote the opinion, in
which Judge Niemeyer and Judge Gregory joined.
ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant. Stephen R. McCullough, Deputy State Solicitor General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellee.
ON BRIEF: Robert F. McDonnell, Attorney General, William E. Thro,
State Solicitor General, William C. Mims, Chief Deputy Attorney
General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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JONES, Chief District Judge:
Robert Bruce Cairns, a Virginia prisoner, appeals the judgment
of the district court denying his petition for habeas corpus.
Cairns was convicted in state court of forcible sodomy, rape, and
manufacturing pornography and sentenced to a lengthy term of
imprisonment. In his federal habeas petition, Cairns argued that
the exclusion of a complaining witness’s journals was
constitutional error and that the Court of Appeals of Virginia had
failed to review that error using the appropriate harmless error
standard. Cairns also challenged the sufficiency of the evidence
for conviction. For the following reasons, we affirm the district
court’s decision denying relief.
I.
DeWayne Martin, a family friend, harbored suspicions that
Cairns was sexually abusing Cairns’s fourteen-year-old
stepdaughter, W, and eleven-year-old daughter, N. So, on October
11, 1998, Martin went to Cairns’s home, removed all four of
Cairns’s children, and drove them to a church where he telephoned
the police. Police officers responded to the call and interviewed
the children. W and N reported having been sexually abused by both
parents. Cairns and his wife were arrested that night.
At his first bench trial, Cairns was convicted of four counts
of forcible sodomy, one count of rape, and one count of
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manufacturing pornography. Cairns appealed and the Court of
Appeals of Virginia reversed his convictions and remanded for a new
trial. See Cairns v. Commonwealth, 542 S.E.2d 771 (Va. Ct. App.
2001).
At his second bench trial, Cairns sought to introduce two
journals kept by W. W had told the police that she had recorded
the details of the sexual abuse in her journals. The journals,
however, did not describe sexual abuse by Cairns and his wife.
Instead, they chronicled W’s numerous consensual sexual encounters
with other people. Cairns wanted to impeach W’s testimony by
demonstrating that she lied to the police about the contents of the
journals. Cairns also argued that the conspicuous absence of
sexual abuse in W’s journals cast doubt upon her testimony that she
had been abused. The trial court refused to admit the journals,
citing the Virginia rape shield statute, Va. Code Ann. § 18.2-67.7(Supp. 2007). Cairns was subsequently convicted of three counts of
forcible sodomy, one count of rape, and one count of manufacturing
pornography.
Cairns appealed his convictions and sentence, claiming, inter
alia, that the trial court had erred by excluding the journals and
that there had been insufficient evidence to convict him. The
Court of Appeals of Virginia (Virginia’s intermediate appellate
court)found that the trial court had erred in excluding the
journals because they were proper impeachment. The court
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determined, however, that the error was harmless and Cairns’s
convictions and sentence were affirmed. See Cairns v.
Commonwealth, 579 S.E.2d 340 (Va. Ct. App. 2003). The Supreme
Court of Virginia denied Cairns’s subsequent petition for appeal.
Cairns then unsuccessfully pursued state collateral remedies.
In his state habeas corpus petition, Cairns raised nine claims,
including exclusion of the journals and insufficiency of the
evidence. A state trial court summarily denied the petition, and
the Supreme Court of Virginia denied Cairns’s appeal.
In his petition in the court below under 28 U.S.C. § 2254(2000), Cairns raised nine claims, substantially identical to the
claims he had raised in his state habeas corpus petition. The
district court denied relief, and Cairns noted a timely appeal.
We granted a certificate of appealability on the following two
issues: (1) whether Cairns’s Confrontation Clause and due process
rights were violated by not allowing into evidence the two journals
kept by W and (2) whether the evidence at trial was sufficient to
support his convictions.
II.
Cairns contends that he is entitled to relief under § 2254
because (1) exclusion of W’s journals was constitutional error; (2)
the Court of Appeals of Virginia applied the wrong standard in
finding that error to be harmless; (3) use of the incorrect
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standard was contrary to clearly established federal law and,
therefore, deference under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) is not appropriate, see 28 U.S.C. §
2254(d); and (4) a de novo harmless error analysis by this court
will lead us to conclude that exclusion of the journals was not
harmless.
A.
As a threshold matter, the Commonwealth of Virginia1 argues
that Cairns failed to exhaust his claim that the Court of Appeals
of Virginia applied the incorrect standard when it evaluated
whether exclusion of the journals was harmless error. The
Commonwealth contends that it was not sufficient for Cairns, in his
petition to the Supreme Court of Virginia, to assign as error
exclusion of the journals. Instead, he was also obligated to
assign, as separate error, the harmless error standard of review
employed by the Court of Appeals of Virginia. The Commonwealth
asserts that Cairns’s failure to assign separate error to the
harmless error standard precludes this court from reviewing that
standard. Therefore, the argument goes, we can only review the
trial court’s decision to exclude the journals using AEDPA
deference. See 28 U.S.C. § 2254(d).
1
For convenience, we will refer to the respondent as the
Commonwealth.
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Cairns disputes the Commonwealth’s interpretation of the
habeas statute. Cairns maintains that § 2254 merely requires a
petitioner to exhaust his claims in state court. His claim is that
the trial court’s exclusion of the journals violated his
Confrontation Clause and due process rights and that he has raised
and exhausted this claim in the state courts. Cairns further
argues that federal habeas exists to relieve petitioners from
constitutional errors at trial and sentencing. The state appellate
court’s application of an incorrect standard of review is not an
error in trial or at sentencing.
A state prisoner must assert his claims in state court before
seeking relief in a federal habeas petition in order to give the
state an opportunity to right constitutional wrongs. Federal
courts will not entertain a federal habeas claim unless it has been
“fairly presented to the state courts.” Picard v. Connor, 404 U.S.
270, 275 (1971). A claim will have been fairly presented to the
state courts if the substance of the federal habeas claim and,
specifically, the constitutional nature of that claim was presented
to the state court. “Some variations in the factual allegations or
legal theory in a federal habeas claim are permitted so long as
they do not ‘fundamentally alter’ the claim that was advanced in
state court.” Moses v. Branker, No. 06-8, 2007 WL 3083548, at *2
(4th Cir. Oct. 23, 2007) (unpublished).
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We reject the Commonwealth’s invitation to complicate
needlessly the restrictions on a state prisoner’s ability to pursue
relief from constitutional errors in a federal habeas petition.
The Commonwealth’s understanding of what constitutes a “claim” is
insupportable. Cairns’s “claim” is that the exclusion of the
complaining witness’s journals violated his Confrontation Clause
and due process rights, and the Commonwealth does not argue that
this federal constitutional claim was not properly exhausted in the
state courts. The correctness of the standard of review employed
by the Court of Appeals of Virginia is relevant to our analysis
only because it dictates whether we accord the state court decision
AEDPA deference.
The following procedural facts are undisputed. Cairns first
attempted to admit the journals pretrial by filing a motion in
limine. He sought to admit them at trial and, when he was denied,
made a proffer to create a thorough record. He cited their
exclusion as error in his direct appeal to the Court of Appeals of
Virginia and in his petition for appeal to the Supreme Court of
Virginia. He complained of their exclusion in his state habeas
petition filed with the state trial court and in his subsequent
petition for appeal to the Supreme Court of Virginia. He filed a
motion asking the Supreme Court of Virginia to reconsider its
decision to deny his petition for appeal. Cairns was required to
give the state courts a fair opportunity to consider the substance
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of his constitutional claim. We find that he did so and that he
has properly exhausted his claim.2
B.
We review de novo the district court’s denial of a § 2254
petition. McNeil v. Polk, 476 F.3d 206, 210 (4th Cir. 2007). The
ultimate issue we must determine is whether exclusion of the
journals was harmless error.3 Because the Court of Appeals of
Virginia has already decided this issue, we may only grant relief
if that decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).4
The Supreme Court has articulated two standards for evaluating
harmless error. On direct appeal, federal constitutional errors
must be assessed with the “harmless beyond a reasonable doubt”
standard set forth in Chapman v. California, 386 U.S. 18, 24
(1967). On collateral review, federal constitutional errors must
be evaluated using the “substantial and injurious” standard
2
The Commonwealth does not argue that Cairns failed to
properly exhaust his claim that the evidence presented at trial was
insufficient.
3
The Commonwealth conceded in its brief that the exclusion of
the journals was constitutional error.
4
Because the Supreme Court of Virginia summarily denied
without opinion Cairns’s petition for appeal, we examine the court
of appeals opinion—the last explained state court decision—to
determine whether that decision was contrary to or involved an
unreasonable application of clearly established federal law. See
Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991).
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articulated first in Kotteakos v. United States, 328 U.S. 750, 764-
65 (1946), and made applicable to habeas petitions in Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993). If the court is “in grave
doubt about whether or not that error is harmless,” then the court
“should treat the error . . . as if it had a ‘substantial and
injurious effect or influence’” on the verdict. O’Neal v.
McAninch, 513 U.S. 432, 435 (1995).
Accordingly, under clearly established federal law, the Court
of Appeals of Virginia was obligated to determine whether the
exclusion of the journals was harmless beyond a reasonable doubt.
Cairns argues that the court of appeals erroneously applied the
Kotteakos-Brecht harmless error test adopted in the Commonwealth
for evaluating nonconstitutional errors. See Clay v. Commonwealth,
546 S.E.2d 728, 731-32 (Va. 2001). The Commonwealth maintains that
the court of appeals correctly applied the Chapman standard.
If we were to conclude that the court of appeals erroneously
applied the Kotteakos-Brecht standard, then we would conduct an
independent review of the error, using the same standard.
[I]n § 2254 proceedings, a court must assess the
prejudicial impact of constitutional error in a state-
court criminal trial under the ‘substantial and injurious
effect’ standard set forth in Brecht . . . whether or not
the state appellate court recognized the error and
reviewed it for harmlessness under the ‘harmless beyond
a reasonable doubt’ standard set forth in Chapman.
Fry v. Pliler, 127 S. Ct. 2321, 2328 (2007). Thus, we would review
de novo the record and decide whether it was highly probable that
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the exclusion of the journals had a substantial and injurious
effect or influence in determining the guilty verdict.
The Court of Appeals of Virginia found that the journals had
been excluded improperly for two reasons. First, “the journals
were not offered to prove the kind of ‘sexual conduct’ prohibited
by” the rape shield statute. Cairns, 579 S.E.2d at 347. Second,
the journals were proper impeachment under the circumstances of the
case. Id. After concluding that exclusion of the journals was
error, the court of appeals evaluated the harmlessness of that
exclusion. The court observed that “the error [was] harmless only
if [it could] say beyond a reasonable doubt that the error did not
affect the verdict.” Id. The court of appeals then reviewed the
“overwhelming evidence” of Cairns’s guilt and concluded that
“beyond a reasonable doubt and without usurping the fact finding
function, . . . the verdict would have been the same had the
journals been introduced into evidence.” Id. at 348.
Recitation of the phrase “beyond a reasonable doubt” will not,
by itself, evidence that the state court actually conducted the
correct harmless error analysis. Sochor v. Florida, 504 U.S. 527,
541 (1992) (O’Connor, J., concurring). Having carefully reviewed
the substance of the court of appeals’ opinion, however, we believe
that the court properly evaluated the exclusion using the Chapman
“harmless beyond a reasonable doubt” standard. Nevertheless, we
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also independently conclude that the exclusion of the journals did
not have a substantial and injurious effect on the verdict.
“In order for an error to have a ‘substantial and injurious
effect or influence,’ it must have ‘affected the verdict.’” Cooper
v. Taylor, 103 F.3d 366, 370 (4th Cir. 1996). An error will not
have had a substantial or injurious effect or influence if the
evidence against the defendant was “so powerful, overwhelming, or
cumulative that the error simply could not reasonably be said to
have substantially swayed” the verdict. Id. Of course, the
harmfulness of the error must be evaluated in the context of the
trial as it occurred. Thus, in addition to the strength and
quantity of properly admitted evidence of guilt, we also consider
“the extent to which the error permeated the” trial and “the
centrality of the issue affected by the error.” Levasseur v. Pepe,
70 F.3d 187, 193 (1st Cir. 1995). See, e.g., United States v.
Rhynes, 218 F.3d 310, 323 (4th Cir. 2000) (en banc) (concluding
that exclusion of the defendant’s only witness for violation of a
sequestration order was not harmless error because it deprived the
defendant of the ability to challenge the government on numerous
issues); Satcher v. Pruett, 126 F.3d 561, 567-69 (4th Cir. 1997)
(evaluating the harmfulness of an in-court identification by
considering its effect on identification evidence because “the
Commonwealth’s case depended on solid and persuasive identification
evidence”).
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There was strong, uncontradicted evidence of Cairns’s guilt
introduced at trial. Although there was no physical evidence
linking Cairns to the sexual assault of either girl or the
manufacture of pornography, the prosecution offered ample direct
evidence. W, Cairn’s stepdaughter, testified that she had been
first sexually assaulted by her mother and Cairns on February 16,
1998. She described in graphic detail that encounter and several
others that occurred before Martin removed her from the home on
October 11, 1998. N, Cairns’s daughter, also testified that she
had been sexually abused by her parents. Each girl testified that
the other girl had also been abused. P, Cairns’s son, testified
that he had found a videotape that showed N giving his father oral
sex. This is not, as counsel suggested at oral argument, a “he-
said, she-said” situation where the only evidence against the
defendant is the testimony of the complaining witness. Instead, it
is a “he-said, they-said” case where the two complaining witnesses
and their brother have corroborated each other’s stories. Thus,
the credibility of one witness is not of such paramount importance.
Exclusion of the journals was not an error that permeated the
entire trial. Rather, it limited only one avenue of cross
examination of one witness, W. Cairns was free to cross examine W
about a range of other topics, including discrepancies between her
testimony at the present trial and her testimony at his first
trial. The exclusion of the journals also did not impair Cairns’s
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ability to cross examine the remaining Commonwealth witnesses,
including N and P.
Furthermore, it is important to note that the journals do not
contradict W’s claim that she had been abused. Nor do they
directly contradict any material matter to which she testified in
court. Cairns sought to introduce the journals to highlight their
contemporaneous silence with regard to sexual abuse and to
demonstrate that W lied to the police when she told them that she
had recorded the sexual abuse in her journals. Given this minimal
impeachment value and the corroborative testimony of two other
witnesses (all of whom Cairns was able to cross-examine), we can
confidently say that the exclusion of the journals was not an error
that permeated the entire trial.
Finally, we find that although the excluded evidence was
relevant to a central issue—credibility—the impact on that issue
was minimal.
As demonstrated by the proffer Cairns made, cross-examination
of W using the journals would have brought out the following facts.
First, during the time period that W was being sexually assaulted
by her parents, she was engaging in consensual sex with people her
own age. Second, W listed all of her sexual partners in her
journals and did not include her parent’s actual names—Robert and
Alice. Third, the only reference to sexual abuse was an entry made
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after her parents had been arrested.5 W also stated that she used
code names for her parents and those code names appear in the list
of her sexual partners. She explained that she did not use her
parents’ real names for fear of someone finding the journals and
also because she did not want to be reminded of the abuse if she
read them. Finally, she testified that she did not recall telling
the police that her journals recounted the sexual abuse by her
parents.
Cairns’s defense theory was that the girls had fabricated
tales of sexual abuse in order to punish him for being a strict
disciplinarian. His belief that the admission and use of the
journals would have lent credence to this theory was simply not
borne out by the proffer. W confirmed that the events relayed in
her journals were real and offered a plausible explanation for why
she had not described sexual encounters with her parents in the
journal. Throughout cross examination she maintained that both she
and her sister had been sexually abused by their parents,
notwithstanding the fact that she had not included the abuse in her
private journals.
The central issue in this case was credibility and certainly
the journals were relevant to W’s credibility. However, as defense
5
This was the first entry in the second journal. The second
journal began on March 13, 1999, five months after Cairns and his
wife were arrested. W’s first journal was contemporaneous with the
abuse, and it spanned from August 24, 1997, to August 25, 1998.
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counsel demonstrated during his proffer, the journals had minimal
impeachment value, much of which was diffused by W’s believable
explanations. Even if the court believed that W had lied to the
police about the contents of her journals and that the absence of
sexual abuse descriptions in her journals was probative of whether
the abuse had occurred, that would not impeach her credibility to
the extent necessary to make the fact of the sexual abuse itself
doubtful. In light of these considerations and the fact that the
journals have no bearing on the credibility of the remaining
witnesses, we conclude that the central issue of credibility was
not so affected by the error that we have grave doubts as to the
validity of the verdict.
After a careful review of the record, we can confidently say
that exclusion of W’s journals and Cairns’s subsequent inability to
cross-examine her using the journals, did not have a substantial
and injurious effect on the verdict and, thus, their exclusion was
harmless.6
6
The Commonwealth argues that the harmlessness of the error is
further supported by the state trial court’s statement at
sentencing that the journals would not have affected his decision.
We reject this argument. The court’s statement was directed to the
mitigation value of the journals in the context of sentencing and
thus had no bearing on what the verdict would have been had the
court considered the journals.
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III.
We turn next to the sufficiency of the evidence. Cairns
specifically asserts that the Commonwealth failed to prove
intimidation, which is a necessary element of the two sodomy
convictions and one rape conviction with regard to W.7 See Va.
Code Ann. §§ 18.2-61(A)(i), -67.1(A)(2) (Supp. 2007).8 And, more
generally, he claims that there was insufficient evidence adduced
at trial to sustain all of his convictions.
“[T]he Due Process Clause of the Fourteenth Amendment protects
a defendant in a criminal case against conviction ‘except upon
proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.’” Jackson v.
Virginia, 443 U.S. 307, 315 (1979) (quoting In re Winship, 397 U.S.
358, 364 (1970)). Accordingly, the Court of Appeals of Virginia
was obligated to decide, “after viewing the evidence in the light
most favorable to the prosecution, [whether] any rational trier of
fact could have found the essential elements of the crime[s] beyond
a reasonable doubt.” Id. at 319 (emphasis omitted) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)).
7
According to the Virginia statutes the Commonwealth could
have proceeded under a theory of force or threat, instead of
intimidation. However, the Commonwealth announced at trial that it
would not introduce evidence of force or threat.
8
Because N was under the age of thirteen at the time of the
sexual abuse, the Commonwealth was not required to prove force,
threat or intimidation. See Va. Code Ann. §§ 18.2-61(A)(iii), -
67.1(A)(1) (Supp. 2007).
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Because the court of appeals considered the merits of Cairns’s
sufficiency of the evidence claim, we may only review that claim if
the court of appeals reached a conclusion “that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”9 28 U.S.C. § 2254(d)(2).
We must presume that determinations of factual issues made by the
court of appeals are correct unless Cairns rebuts this presumption
with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lenz
v. Washington, 444 F.3d 295, 300 (4th Cir. 2006). We conclude that
AEDPA deference is due the decision of the court of appeals and
therefore will not consider the merits of Cairns’s sufficiency
claims.
A.
In order to convict Cairns of forcible sodomy, the trial court
had to find beyond a reasonable doubt that Cairns had engaged in
oral sex with W, that the act had been against W’s will, and that
it had been accomplished by intimidation. See Va. Code Ann.
§ 18.2-67.1 (Supp. 2007). Similarly, in order to convict him of
rape, the trial court had to find beyond a reasonable doubt that
Cairns had engaged in sexual intercourse with W against her will
and by intimidation. See Va. Code Ann. § 18.2-61 (Supp. 2007).
9
In his brief, Cairns acknowledges that the court of appeals
applied the correct law.
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The Court of Appeals of Virginia properly focused in on the
intimidation element in both crimes. Under Virginia law,
intimidation may be proved by showing that the victim feared bodily
harm, was subject to the dominion and control of the defendant such
that her mind and will were overborne, or was vulnerable to the
psychological pressure imposed by the defendant. See Cairns, 579
S.E.2d at 351 (citing Sabol v. Commonwealth, 553 S.E.2d 533, 537
(Va. Ct. App. 2001)). Fear of the bodily harm accompanying sexual
assault is sufficient under Virginia law to satisfy the
intimidation element. Also relevant are the victim’s age and the
relationship between the victim and the defendant. Id. (citing
Commonwealth v. Bower, 563 S.E.2d 736, 738 (Va. 2002)).
In reviewing the evidence that had been presented at trial,
the court of appeals noted W’s testimony that she had not wanted to
engage in sexual activity with Cairns, that resisting him would
have been futile because he was more powerful than her, and that
she had been afraid of him when he was angry. Id. The court of
appeals remarked upon the familial relationship between Cairns and
W and W’s particular helplessness because her mother had
participated in the abuse. Finally, the court highlighted evidence
demonstrating that the Cairns household had been a violent place,
including testimony that Cairns had physically abused his wife and
one of his sons in W’s presence. The court of appeals found that
“[c]redible evidence support[ed] the trial court’s finding that the
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Commonwealth [had] proved intimidation beyond a reasonable doubt.”
Id. at 352.
We agree. Even if W’s journals had been admitted, they would
not have rebutted any of the aforementioned evidence of
intimidation. The court of appeals did not base its decision upon
an unreasonable interpretation of the facts.
B.
Cairns was convicted of two counts of forcibly sodomizing W
and one count of raping her. He was convicted of one count of
forcibly sodomizing N. His conviction for manufacturing
pornography was based on videotaping the sexual abuse. He contends
that the evidence is insufficient as a matter of law to support any
of these convictions.
The court of appeals properly considered the evidence in the
light most favorable to the Commonwealth, the prevailing party
below. In so doing, it held that “[c]redible evidence support[ed]
the trial court’s finding.” Id.The court of appeals found that, viewed in the light most
favorable to the Commonwealth, the evidence at trial showed that
Cairns first attempted to rape W on February 16, 1998, his
birthday. In April and May of that year he sodomized her by
forcing her to give and receive oral sex. During a game of strip
poker with his wife and W, he both raped W and forced her to
perform oral sex on him. In the summer of 1998, he videotaped
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himself giving and receiving oral sex with both W and N. One of
the videos was found and viewed, albeit briefly, by his son P who
testified that the tape showed N performing oral sex on their
father. At the time of the abuse, N was under thirteen years of
age. W testified that she had not wanted to engage in sexual
activities with her father but that fighting him had not been an
option.
It was reasonable for the court of appeals to conclude that
there was sufficient evidence from which a rational trier of fact
could conclude that the Commonwealth had proved “beyond a
reasonable doubt of every fact necessary to constitute the” crimes
with which Cairns was charged. In re Winship, 397 U.S. at 364.
Therefore, we accord that decision AEDPA deference and will not
review the merits of Cairns’s sufficiency claim.
IV.
Because we conclude that the district court correctly rejected
Cairns’s federal constitutional claims, the judgment of the
district court denying his § 2254 petition is
AFFIRMED.
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