Gennaro Piscopo v. State of Michigan , 479 F. App'x 698 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0470n.06
No. 10-2617
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
GENNARO PISCOPO,
May 02, 2012
LEONARD GREEN, Clerk
Petitioner-Appellant,
v. On Appeal from the United
States District Court for the
STATE OF MICHIGAN, Eastern District of Michigan
Respondent-Appellee.
/
Before: GUY, COLE, and ROGERS, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Defendant Gennaro Piscopo seeks review
of the district court’s denial of his habeas corpus petition. Piscopo, a pastor, was sentenced
by a Michigan state court to five years of probation following his conviction on one count
of fourth-degree criminal sexual conduct (CSC) stemming from contact with a participant
in a church ceremony. He asserts that the state trial court’s exclusion of certain evidence
violated his constitutional rights to confront witnesses and present a defense. Because the
adjudication of these issues by the state courts represents a reasonable application of
Supreme Court precedent, we affirm.
I.
No. 10-2617 2
Complainant KB was a participant in a deliverance ceremony at the church run by
Pastor Piscopo in November 2001. Approximately 100 people were in attendance, one-third
or fewer to be delivered from evil spirits, and the balance to assist with the ceremony.
During the pertinent part of the events at the church that day, the deliverance participants sat
on folding chairs, with church workers and/or volunteers surrounding them, yelling at or
praying with the participants.
KB described her involvement in the ceremony as less than fully engaged. For this
reason, she was approached by Piscopo several times during the proceedings. KB alleged
that during one of these encounters, Piscopo instructed his assistants to restrain KB while he
touched and rubbed her breasts and genital area. KB described this behavior to law
enforcement the day after the deliverance ceremony.
Piscopo was charged with two counts of second-degree CSC for his conduct with KB.
He was also charged with separate counts of fourth-degree CSC involving two other
participants in deliverance ceremonies. No physical evidence was presented at trial, and KB
was the only source of evidence against Piscopo with regard to her allegations.1 At trial,
Piscopo sought to introduce statements made by KB on a couple of pages of a lengthy
questionnaire she submitted the day of the deliverance she attended. In that paperwork, KB
stated that she had been abused by her father, also a pastor, over a 10-year period when she
was a child. She also recounted her fear of demons and her belief that she had been raped
by a demon as a teenager.
1
Piscopo emphasizes that numerous witnesses testified that they had personally observed the
interaction between KB and Piscopo, but had seen no offensive contact.
No. 10-2617 3
As described by the Michigan Court of Appeals, the trial court excluded all of the KB
questionnaire evidence for the reasons that:
(1) the evidence was not relevant; (2) KB’s assertions were hearsay and did not
fall under the business records exception argued by defendant, MRE 803(6);
and (3) some of the statements were barred by the rape-shield statute, MCL
750.520j, and evidentiary rule, MRE 404(a)(3).
People v. Piscopo, No. 245835, 2004 WL 1416282, at *4, (Mich. Ct. App. June 24, 2004).
Following four and a half days of deliberation, Piscopo was convicted by a jury on one
lesser-included count of fourth-degree CSC as to KB. He was found not guilty on all
remaining counts, including those involving other complainants. He was sentenced to five
years of probation and ordered to pay restitution.2 Piscopo’s direct appeal was unsuccessful.
See id. His application for leave to appeal to the Michigan Supreme Court was ultimately
denied. See People v. Piscopo, 741 N.W.2d 826 (Mich. 2007).
Piscopo then sought habeas review of his conviction in the district court. The district
court denied the petition on the merits. Piscopo appealed the district court’s decision and
requested a certificate of appealability from both the district court and this court, enumerating
three distinct claims. The district court granted a certificate of appealability as to Piscopo’s
first and second claims, which both address information given by KB in her questionnaire
and allege violations of his constitutional rights.3 These are the claims before us on appeal.
II.
2
As a result of the conviction, Piscopo was also required to register as a sex offender.
3
Piscopo then sought an expanded certificate to include his third claim, which asserted that his due
process rights were violated by the trial court when it excluded expert testimony concerning how intense
emotions can affect perception. We denied the expansion of the certificate by order dated May 20, 2011.
No. 10-2617 4
A. Habeas Review
We review de novo the legal conclusions made by a district court in a habeas corpus
proceeding. Villagarcia v. Warden, Noble Corr. Inst., 599 F.3d 529, 533 (6th Cir. 2010).
Under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, which
applies to this case, a federal court may grant the writ of habeas corpus with respect to a
“claim that was adjudicated on the merits in State court proceedings,” if that adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or
(2) resulted in a decision that 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).4
A state court decision is “contrary to” established Supreme Court law if (1) “the state
court applies a rule that contradicts the governing law set forth in our cases,” or (2) “the state
court confronts a set of facts that are materially indistinguishable from a decision of this
Court and nevertheless arrives at a result different from our precedent.” Williams v. Taylor,
529 U.S. 362, 405-06 (2000). Concerning the question of an “unreasonable application,” “a
federal habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established
4
In the instant case, the parties dispute the applicable standard as to the evidence of abuse by demons,
because Piscopo’s claim concerning this evidence was not specifically discussed by the Michigan Court of
Appeals. This issue is discussed in conjunction with that claim, below.
No. 10-2617 5
federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”
Id. at 411.
B. Sexual Abuse by Pastor-Father
We will first address the statements in KB’s questionnaire concerning the alleged
abuse by her father, also a pastor.5 In that document, KB wrote that when she was seven
years old, her father “stood naked in the bathtub, soaped up, tried to get [her] to touch him,”
and that this continued for 10 years. When cross-examining her on this statement for
purposes of making an appellate record, outside of the hearing of the jury, defense counsel
asked KB if it would surprise her if her father told an investigator KB’s allegations were
untrue.
In his brief, Piscopo states that this evidence was admissible to show that KB’s
perception of the events at the deliverance ceremony was unreliable. He states that his
“argument to the jury would have been that [KB] had a bias against male pastors because of
her bad experiences with a pastor who happened to also be her father,” and that this bias
“caused her to perceive the touchings as sexual when in fact they were not.”
5
We note that this evidence is not even mentioned in Piscopo’s actual habeas petition. In that
document, he lists only two grounds raised:
Whether the Petitioner’s constitutional right of confrontation was violated when he was not
allowed to question his accuser about her statement that she was raped by a demon?
Whether the Petitioner’s rights to Due Process and a Fair Trial under the Michigan and
Federal Constitutions were violated when an expert witness was not allowed to testify[?]
Although the claim was not included in the habeas petition itself, we address it because the parties briefed
the issue before state courts and the federal district court, it was addressed in the Michigan Court of Appeals
opinion and the federal district court habeas opinion, and it was briefed by both parties on appeal.
No. 10-2617 6
At the time of the deliverance ceremony, KB (according to her handwritten document)
was 43 years old. The accuracy of the reported abuse by her father, decades in the past, was
questioned by defense counsel in the record he made for appeal. This suggests that defense
counsel wanted to admit the evidence of KB’s allegations, as well as shed uncertainty upon
their accuracy. We question how evidence of sexual abuse by KB’s father (whether the jury
learned that such abuse was disputed by the father or not) could be used to show a propensity
on the part of KB to consider much later, physical contact by a pastor to be sexual in nature.
Piscopo does not develop any theory as to why the fact that KB’s father was a pastor might
cause her to single out other pastors for false accusations of offensive sexual conduct.
Under the Sixth Amendment, a criminal defendant is guaranteed the right to confront
“witnesses against him.” U.S. C ONST. amend. VI. In Davis v. Alaska, 415 U.S. 308 (1974),
the Supreme Court found that the state trial court had violated the defendant’s Sixth
Amendment rights by failing to allow his impeachment of a prosecution witness—a
juvenile—with that witness’s prior criminal record. Id. at 310-11. In the case of Delaware
v. Van Arsdall, 475 U.S. 673 (1986), which examined the Davis case, the Supreme Court
emphasized that the trial court has “wide latitude” to impose “reasonable limits” to avoid
“harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” Id. at 679. In Van Arsdall, the defendant sought to
impeach a witness whose drunkenness charge was dropped after he agreed to talk to the
prosecutor about the defendant’s case. That court found a Sixth Amendment violation where
No. 10-2617 7
the trial court had “prohibited all inquiry into the possibility that [the witness] would be
biased as a result of the State’s dismissal of his pending public drunkenness charge.” Id.
In our decision in Boggs v. Collins, 226 F.3d 728 (6th Cir. 2000), the habeas action
of a defendant convicted of rape, we considered the trial court’s exclusion of evidence of a
prior, allegedly false accusation of rape. Determining that the desired cross-examination was
an intended attack on the witness’s general credibility, and finding no plausible defense
theory of motive or bias, we found no constitutional violation in its exclusion. Id. at 740.
We considered the Davis and Van Arsdall cases in concluding “that cross-examination as to
bias, motive or prejudice is constitutionally protected, but cross-examination as to general
credibility is not.” Boggs, 226 F.3d at 737. As the parties recognize, this “rule” noted in
Boggs was vigorously questioned by our decision in Vasquez v. Jones, 496 F.3d 564, 574
(6th Cir. 2007). In Vasquez, we held that the trial court’s refusal to allow a defendant to
impeach hearsay testimony with a witness’s prior criminal record violated the Confrontation
Clause. We held the proposition to be equally true whether the cross-examination went to
credibility or bias. We found the Boggs case nondispositive on several fronts, including the
trial court’s reliance on the rape shield statute, and distinguishable facts.6
6
The parties dispute whether the evidence in the questionnaire—alleging sexual abuse by the father
and rape by demons—was properly excluded under Michigan’s rape shield statute. As the state argued, state-
law evidentiary claims are not cognizable on habeas review. Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Piscopo cites Lewis v. Wilkinson, 307 F.3d 413 (6th Cir. 2002), as an example of a situation where Sixth
Amendment protections “trumped” a state’s rape-shield statute. He also suggests, alternatively, that he could
avoid application of the rape shield law by being allowed to admit evidence of unspecified abuse by the
father, which would allow him to develop his theory of bias against male pastors. Because we find no Sixth
Amendment violations here, we decline to further address these arguments.
No. 10-2617 8
Regardless of whether Piscopo sought to admit this evidence as an attack on KB’s
credibility, generally, or more specifically to show a bias or motive on the part of KB, the
state appellate court did not unreasonably apply Supreme Court precedent in upholding its
exclusion. The instant case does not involve a “prototypical form of bias,” as did the Van
Arsdall and Davis cases. The assertion that the questionnaire answers reveal a bias against
pastors is speculative. Nonetheless, defense counsel was allowed to pursue this argument.
On more than one occasion defense counsel did tell the jury that KB had been abused by
men, in particular her father, and also told the jury that KB had filled out “paperwork”
indicating that she had issues with men and her father. At closing, defense counsel argued
that
[y]ou cannot put a burden on us to find out why KR and KB testified the way
they did. Did they have pre-set ideas in their head of what was happening?
Did they have some fears? I don’t know who’s been involved in a car
accident, but if you’re behind that wheel, and you’re-you’re like this. You’re
jumpy. That’s normal, human reaction. We don’t know if these, what their
backgrounds were, whether they were jumpy around men, whether they had
trouble with Pastor, whether they had trouble with men. We weren’t allowed
to find out. But if they were, and someone came up after they’re in an altered
state of consciousness, as Jim Bacon testifies, and scares them, they’re going
to imagine all kinds of things happened.
As noted by the district court, the questioning of KB on this evidence by defense
counsel suggests that, at that juncture, the defense intended to use the evidence to show a
prior false accusation of sexual abuse. Such evidence would be used to attack KB’s
credibility, not to show a bias. In any event, as both the Michigan Court of Appeals and the
district court noted, the allegations against KB’s father are “removed in time and markedly
different” from those made against Piscopo.
No. 10-2617 9
Given the multiple possible reasons counsel sought to have the evidence admitted, the
trial court’s ruling was not inconsistent with Davis or Van Arsdall. The Michigan court’s
conclusion that Piscopo’s rights under the Confrontation Clause were not violated by the
exclusion of this evidence was not unreasonable.
C. Demon Statements
Piscopo also asserts his constitutional right to confront witnesses and present a
defense was violated by the trial court when it did not admit KB’s statements concerning her
asserted rape and threats by demons.7 Piscopo contends that such evidence would have
shown the jury that KB misperceived what happened to her during the deliverance ceremony,
and that her “delusions” rendered her testimony unreliable.
As noted above, the defendant was permitted to make a record of testimony
concerning this evidence outside of the presence of the jury. KB confirmed that she wrote
on her deliverance questionnaire that she was raped by a demon as a teenager. She explained
that she was lying in bed and sensed the presence of a “spirit” without a human form. She
also acknowledged writing that evil spirits had tried to kill her and her sister, and she had told
people of her fear of the basement stairs because she was afraid that demons would grab her
by the ankles.
7
Although Piscopo’s briefs include arguments concerning his constitutional right to present a
defense, and the state responds to these arguments, this claim was neither in his habeas petition nor included
in the certificate of appealability. In any event, these arguments largely reiterate his Confrontation Clause
arguments. To the extent Piscopo’s claim is properly before us, we conclude that the state courts’ exclusion
of the questionnaire evidence was not unreasonable under Supreme Court precedent, as Piscopo was given
a “meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986).
No. 10-2617 10
Piscopo’s argument concerning KB’s experience with demons was mentioned only
in passing by the opinion of the Michigan Court of Appeals. On habeas review, the district
court then determined that because the state court of appeals decision “provided only a
cursory analysis of demon-rape issue,” the appropriate standard of review to apply was that
of “modified AEDPA deference.” “This standard of review requires the court to conduct a
careful review of the record and applicable law, but nonetheless bars the court from reversing
unless the state court’s decision is contrary to or an unreasonable application of federal law.”
Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir. 2005).
As the state asserts, however, all of the deference afforded by § 2254 applies to our
review. This is true whether or not “a state court’s order is unaccompanied by an opinion
explaining the reasons relief has been denied.” Harrington v. Richter, 562 U.S. __, 131 S.
Ct. 770, 784 (2011). See also Treesh v. Bagley, 612 F.3d 424, 429 (6th Cir. 2010), cert.
denied, 131 S. Ct. 1678 (2011). The Supreme Court’s recent Harrington opinion described
the AEDPA’s role as a “part of the basic structure of federal habeas jurisdiction, designed
to confirm that state courts are the principal forum for asserting constitutional challenges to
state convictions.” Harrington, 131 S. Ct. at 787. A state court order lacking in reasoning
or explanation does not have to include citation to, or demonstrate its awareness of, Supreme
Court decisions as long as any reasoning that is given, and the result, are not in conflict with
Supreme Court precedent. Treesh, 612 F.3d at 430 (citing Williams v. Bagley, 380 F.3d 932,
942 (6th Cir. 2004)).
No. 10-2617 11
As with the sexual abuse evidence, the parties also dispute the characterization of this
evidence. Piscopo asserts that the evidence would have been used to show that KB
misperceived the incident, rather than to attack her credibility. This is asserted by Piscopo
to distinguish the case from the facts of Boggs, where we found that “cross-examination as
to general credibility is not [constitutionally protected].” 226 F.3d at 737. However, as
discussed above, in Vasquez, we held that attacks on general credibility were protected under
the Confrontation Clause.8
There is no need to address the tension between the Boggs and Vasquez decisions in
deciding this case. Even if Piscopo’s intended use of the evidence was as described, it was
not unreasonable for the Michigan courts to conclude that it was a constitutionally permitted
limit on cross examination. The jury was presented with the circumstances of the contact
between KB and Piscopo. Members of the jury were aware that KB was someone who
claimed to be plagued by evil spirits and was in fact at the deliverance ceremony to exorcise
them. The jury also heard testimony concerning her attendance at other pastors’ deliverance
ceremonies in the past. KB filled out a lengthy form, including a couple of pages briefly
describing upsetting experiences in her life, in preparation for deliverance by Piscopo from
evil spirits. Piscopo does not argue that these past incidents somehow incapacitated KB, or
caused her to be generally unable to distinguish real life events from imagined ones. He
8
Also as with the sexual abuse evidence, the parties dispute whether the trial court properly excluded
the evidence under Michigan’s rape shield statute. However, in our habeas review we do not “determine
whether the exclusion of the evidence by the trial judge was correct or incorrect under state law, but rather
whether such exclusion rendered petitioner’s trial so fundamentally unfair as to constitute a denial of federal
constitutional rights.” Lewis v. Wilkinson, 307 F.3d 413, 420 (6th Cir. 2002) (quoting Logan v. Marshall,
680 F.2d 1121, 1123 (6th Cir. 1982)).
No. 10-2617 12
offers no argument as to how one questionnaire answer concerning KB’s perceived teenage
demon rape demonstrates that she incorrectly sexualizes situations as an adult.9
The Supreme Court has described the Confrontation Clause’s guarantee as that of “an
opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474
U.S. 15, 20 (1985). Whether or not we would have come to the same conclusion as the trial
court on these evidentiary questions is not dispositive of this action. See Bell v. Cone, 535
U.S. 685, 699 (2002).
As the Supreme Court stated in Harrington, habeas corpus is not a “substitute for
ordinary error correction through appeal.” Harrington, 131 S. Ct. at 786. Habeas review
employs a deference which “demands that state-court decisions be given the benefit of the
doubt.” Montgomery v. Bobby, 654 F.3d 668, 676 (6th Cir. 2011) (quoting Cullen v.
Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398, 179 L.Ed 2d 557 (2011)). Application of that
deference to the state court rulings at issue here demonstrates that Piscopo is not entitled to
the relief that he seeks.
Because the decision in the Michigan state courts—that excluding this evidence
represented a constitutionally permitted limit on Piscopo’s cross-examination of KB—was
9
We find distinguishable the case of Hargrave v. McKee, 248 F. App’x. 718 (6th Cir. 2007), cited
by Piscopo. In Hargrave, a woman living out of her car complained of a rape and carjacking by the
defendant. The defendant was convicted on the carjacking charges, despite his defense that the complainant
had consented to his temporary possession of the car, and was not permitted to cross-examine the
complainant in any depth on her psychiatric condition. In that case, we held that the Confrontation Clause
guaranteed a defendant the right to additional cross-examination. We came to this determination finding a
“strong possibility” that the complaining witness’s mental condition impacted the reliability of testimony
concerning her consent to the “very events at issue.” Hargrave, 248 F. App’x at 727.
No. 10-2617 13
not an unreasonable application of Supreme Court precedent, we AFFIRM the district
court’s denial of the petition.