USCA1 Opinion

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

Assistant Attorney General,

with

appellant.
Andrea J. Mendes, Special
________________

whom Jeffry B. Pine, Attorney General, was on brief for appellee.

______________

____________________

November 12, 1996

____________________

____________________

Of the District of Massachusetts, sitting by designation.

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
___________

Defendant-Appellant Ansley S.

Pettiway, Jr. ("Pettiway")

was tried and convicted

of one count

of first degree child molestation sexual assault, R.I.

11-37-8.1,

sexual

and one

assault, R.I.

acquitted

count of

Gen.

Laws

of two counts of first

second degree child

11-37-8.3.

habeas corpus

in the

District of Rhode Island,

R.I.

He

was

also

Pettiway unsuccessfully

his conviction to the Rhode Island Supreme Court, State

_____

v. Pettiway, 657 A.2d 161 (R.I.

________

of

molestation

degree and one count of second

degree child molestation sexual assault.

appealed

Gen. Laws

1996).

When the

1995), and then filed for a writ

United States

District Court

Pettiway v. Vose, 921 F. Supp.

________
____

district court denied

filed this appeal.

I.

STANDARD OF REVIEW

for the

61 (D.

the writ, Pettiway

I.

STANDARD OF REVIEW

Our review of a

harmless error determination on habeas

corpus review is

de novo.
_______

(1st

("mixed questions

Cir. 1994)

section 2254

See Scarpa v.
___ ______

cases are ordinarily

Levasseur v. Pepe, 70 F.3d 187,

_________
____

error determination on

of law and fact [and] we

of

fact by

deference

v.

the

of law

and fact

arising in

193 (1st Cir. 1993) ("a harmless

habeas corpus review is

a mixed question

examine this issue de novo").

_______

state court,

subject to de novo review");

________

however,

on federal habeas review.

are entitled

Findings

to

great

See 28 U.S.C. 2254(d); Tart

___
____

Commonwealth of Massachusetts, 949

______________________________

1990).

Dubois, 38 F.3d 1,
______

F.2d 490, 504

(1st Cir.

-2-

II.
II.

BACKGROUND
BACKGROUND

The principal facts of this

opinion of the

Pettiway,
________

state Supreme

657 A.2d

federal district

161

court on

case are summarized in the

Court on direct

(R.I. 1995),

and

review, State
_____

the opinion

collateral review, Pettiway

of

v.

the

v. Vose,

________

____

921 F. Supp. 61, 61-62 (D. R.I. 1996), therefore, we present only

a brief

factual review.

enter into

evidence

At trial, Pettiway was not permitted to

a report

Youth, and Families ("DCYF")

victim had been

subsequent

Pettiway,
________

victim,

These

to

of

Children,

which included allegations that the

incidents were alleged

the abuse

657 A.2d at 163.

In

the prosecution relied

testimony of

the Department

sexually abused by two other men whom her mother

had brought home.

place

of

by

defendant.

to have

taken

See State
___ _____

v.

addition to the testimony of the

on a written

confession and the

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.
III.

LEGAL ANALYSIS
LEGAL ANALYSIS

On direct review, the

and

neither

party

limiting

Pettiway's

witness

violated

confrontation.

See
___

Rhode Island Supreme Court held,

disputes,

ability

that

the

trial

to cross-examine

Pettiway's

Sixth

the

Amendment

State v. Pettiway, 657 A.2d

_____
________

state Supreme Court also

court's

ruling

complaining

right

to

at 163-64.

The

concluded, however, that the denial

-3-

of

Pettiway'sright to confrontation was harmless error.

We now

In order

to

review Pettiway's

prevail

constitutional

Pettiway

must show

error, considered

whole, had a "'substantial and

750,

1993),

Court

In

Bowling v.
_______

stated

the

of the

trial-type

record

as a

in

Brecht v. Abrahamson, 507 U.S.

______
__________

(quoting Kotteakos
_________

776 (1946)).

this

in light

that

habeas corpus.

injurious effect or influence

determining the jury's verdict.'"

619, 623 (1993)

petition for

Id. at 164.
___

that

v. United States, 328

______________

Vose, 3
____

"the

F.3d 559

inquiry

U.S.

(1st Cir.

entails

determination

testimony

context of

of the

and an

inculpatory

must

to place

as a

be

evidence."

the

force of

[the]

whole.

Id. at
___

In

563.1

whether

short, the

the

Relevant factors

the

jury was

(2)

affected by the error to the

relative strength

of the

the

the

weight of

weight

error include: "(1) the extent to

proceeding,

[the] proposed

testimony within

balanced against

in determining

swayed by the

permeated

effort

the evidence

[the] testimony

considered

exact nature and

of

the

to be

substantially

which the error

centrality

of

the

issue

case as actually tried, and (3) the

properly admitted evidence

of guilt."

____________________

Neither party mentioned

in its brief or at oral

Antiterrorism and Effective

No.

104-132, 110

Stat.

Death Penalty Act

1218, which

amends

argument the

of 1996, Pub.
the habeas

L.

corpus

provisions of 28 U.S.C.
navigate

the amended

amendment habeas corpus

we

find that

denied.

2254.
statute

We need not, however, attempt to

in this

case.

the

requirements established by this

defendant-appellant's request

Because

Using

the amendments make

for relief

the

Court,

must be

habeas corpus relief

difficult to obtain, the result would be the same whether

pre-

more

or not

amendments are relevant to this case and whether or not they

affect our inquiry.

-4-

Levasseur, 70 F.3d
_________

at 193.

We will

follow the approach adopted

in Levasseur, considering each of the factors in turn.

_________

-5-

IV. DISCUSSION
IV. DISCUSSION

A.
A.

The

Prevalence of the error

Prevalence of the error

constitutional

limitation of Pettiway's

error

in

this

case

was

right to cross-examine the victim.

the

The

victim was interviewed by a child protective investigator for the

DCYF

in September

prior to his trial.

had been

1992, after

the indictment of

Pettiway, but

During that interview, she reported that she

sexually abused by

two other

men that her

mother had

brought home.

These incidents occurred subsequent to the alleged

sexual abuse by

proven false.

Pettiway, and have

See State v.
___ _____

been neither prosecuted

Pettiway, 657
________

A.2d 161, 163

nor

(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,

challenge her

his

credibility.

[the] trial justice gave

wide

latitude

fully

in

regard

on direct-examination

and

explore

memory about the

sooner.

in

the

Melissa
she

. . .

her reasons

defense counsel

matters

to

to

and

Indeed . . .

to cross-examine

testified
to

accuser,

depth

Melissa's

incidents of abuse

for not reporting

and

the abuse

Id. at 164.
___

Pettiway claims that

enabled

him

to

demonstrating a

challenge

pattern of

the excluded evidence

the credibility

of

accusing her mother's

the

would have

victim

boyfriends of

sexual abuse.

-6-

B.
B.

by

Centrality of the issue affected by the error

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.

this determination, however.

Our inquiry does not end with

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

the

victim

allegation

claimed

that

substantially

is

to have

been

very

possibly

affected

the

testimony to the effect that

abused by

jury's

truthful

other

men

-- an

--

would

have

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

____

Furthermore,

to believe the testimony of

the victim.

Pettiway has pointed to no place in the record, and

has made no argument, to the

effect that the allegations made by

the victim

did he give any

intended to

were false.

Nor

discredit those allegations

indication that he

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

testimony of the victim.

-7-

of disregarding

the entire

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.
C.

Relative Strength of the properly admitted evidence

Relative Strength of the properly admitted evidence

The final factor

examine the

in the Levasseur test

_________

strength of the properly admitted

requires us to

evidence of guilt

and determine whether "the error substantially affected the jury.

Was the properly admitted evidence so strong that

the

impact of

the [error]?"

conclude that it was.

of: (1)

70 F.3d

The evidence admitted at

the testimony of

the victim; (2)

police officers that defendant

defendant's written

Levasseur,
_________

it overwhelmed

at 195.

trial consisted

the testimony of

made an oral confession;

confession.

See Pettiway v.
___ ________

We

two

and (3)

Vose, 921
____

F.

Supp. at 63.

The

molestation.

victim testified

She

detailed one

to

eleven incidents

incident during

of

sexual

which Pettiway

touched her

and

she mentioned

molestation.

admitted

to

victim.

Id.
___

act

breast and penetrated

several

Id.
___

sexually

her vagina with

other, more

Both detectives

touching

his fingers,

general allegations

testified

and digitally

that

of

Pettiway

penetrating

the

In his written confession, Pettiway admitted to one

of touching the victim's

breast and one

-8-

act of penetrating

her

vagina,

occasions.

that the

same

breast

and

stated that

he

touched

her

on three

other

The important point for present purposes is the fact

confessions and the

incidents

and one

of touching

act of

victim's testimony all

in detail

--

relate the

one touching

vaginal penetration.

Beyond

of the

these two

events, the testimony and the written confession are both vague.

The court submitted five counts of

jury, and the jury returned

Pettiway points out that the

testimony

and contends

testimony and

light

of

guilty verdicts on two.

fact,

ability to

the

Id.
___

at 64.

jury's verdict mirrors the victim's

the

jury

relied solely

disregarded the allegedly coerced

this

limiting his

that

sexual abuse to the

defendant's

impeach the

theory

on

this

confession.

goes, an

credibility of the

In

error

victim

cannot be

mirrors

harmless.

Appellee

the written

confession

evidence that the jury

argues,

the error

responds that

and

claims

found compelling.

is harmless

the jury

that

As a

because it

verdict

it

is

this

result, appellee

relates only

to the

testimony of the victim.

We disagree

Pettiway's

confession.

confession, and

similar.

sources

that the verdict reflects

The

the testimony

written

a disregard for

confession,

of the victim

the

oral

were substantially

This collection of evidence from the two most reliable

possible -- the victim

and the accused

-- is extremely

persuasive and the error in this case is simply not consequential

enough

there

to undermine this evidence.

First, as pointed out above,

is serious doubt about the probative value of the evidence

-9-

that Pettiway sought to

about

introduce.

credibility could

the minds

overcome.

They provide substantial corroboration of the victim's

jury.

confessions cannot

support for

the verdict

so

of the

oral

strong

written

placed in

some doubts

jury, the

testimony and

and

have been

Second, even if

easily

returned by

be

the

Despite the attempts of both parties to present the jury's

deliberations as focusing on

no reason why this must be

only one piece of evidence,

so.

The evidence, taken as

we see

a whole,

is consistent and strongly supports the guilty verdicts.

the

victim's testimony

outcome

that

confessions

had

strikes us

provide

corroboration of

been

called

as unlikely

sufficient

the testimony

--

into question

the oral

evidence

to conclude

Even if

of

--

an

and written

guilt

that the error

and

was

harmless.

We also feel compelled to address Pettiway's claim that

the

oral and written confessions

specifically

addressed by the

after a detailed

inquiry into

were coerced.

state court.

the claim of

This issue was

The trial justice,

coercion and

hearing evidence on the issue from both sides, wrote:

do not believe

that this defendant

after

asked

for

an

attorney

interrogation room.
asked for

believe

he

I don't

telephone call,
asked

to

in

that

believe he
nor

do

stop

I
the

interrogation.
I

find

statements, then

first

the

verbal

the written statements,

were made with

full consent of the

and

and intelligently

knowingly

[sic] all his

that

has

. . beyond

. . . [that]

waving

constitutional rights

the State

proven .

will

now

in my

a reasonable

and

opinion
doubt

the statements attributable

-10-

to the defendant
and not

were voluntarily

of any coercion and

[sic]

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

to

great deference.

779 F.2d

is entitled

See 28 U.S.C. 2254(d); Tart v. Commonwealth

___
____
____________

of Massachusetts, 949 F.2d

________________

Holbrook,
________

fact by the state court

1,

490, 504 (1st Cir. 1990);

3 (1st

Cir. 1985).

Tavares v.
_______

On habeas

corpus

review, we overturn such a finding of fact only if we "conclude[]

that such factual

record."

determination is not

fairly supported by

the

28 U.S.C. 2254(d).

We find, upon

our own

review of the

record, that

we

must adopt this

finding of

"under a lot of

pressure . . .

"adult

acne"

introduce

and

was taking

any evidence

judgment.

fact.

that

Pettiway

claims that he

was

from the doctor" because he

had

tetracycline,

this medication

yet

he

failed to

would affect

his

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

couple of minutes"

reference to

to write the written confession

after being

the written

advised of those

confession, he

everything that they told [him] to write."

103.

that

Yet only a

few pages later

he "can't even be sure" that

only "a

rights.

stated that he

With

"wrote

Trial Transcript I at

in the transcript,

he states

he wrote the confession.

Id.
___

at 106.

If the defendant was aware of his rights, why was it so

-11-

easy for the

detectives to coerce his confession?

be that "his

will was completely overborne,"

at 4, when the entire interrogation

How could it

Brief of Appellant

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.
V.

We

conclude,

violation was harmless

dismissal of

CONCLUSION
CONCLUSION

therefore,

that

the

error and we affirm

affirm
______

the habeas corpus

petition.

Sixth

Amendment

the district court's

The

oral confession,

the written confession, and the testimony of the victim amount to

powerful

body

of

evidence.

We

do

not

believe

that the

admission of allegations made by the victim about other incidents

of abuse

have

could have overcome this

"substantial

and

evidence.

injurious

determining the jury's verdict."

effect

The error

or

did not

influence

Brecht, 507 U.S. at 623.

______

in

-12-