201 F.3d 428 (1st Cir. 1999), 99-1056, Platt v. State of Maine

Docket Nº:99-1056.
Citation:201 F.3d 428
Party Name:Thomas PLATT, Plaintiff, Appellant, v. The STATE of Maine, Defendant, Appellee.
Case Date:November 04, 1999
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 428

201 F.3d 428 (1st Cir. 1999)

Thomas PLATT, Plaintiff, Appellant,


The STATE of Maine, Defendant, Appellee.

No. 99-1056.

United States Court of Appeals, First Circuit

November 4, 1999

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA1 Rule 36 regarding use of unpublished opinions)

Appeal from the United States District Court for the District of Maine, Hon. Morton A. Brody, U.S. District Judge.

John A. Ciraldo, with whom Jennifer L. Sanders and Perkins, Thompson, Hinckley & Keddy were on brief for appellant.

Charles K. Leadbetter, Assistant Attorney General, with whom Andrew Ketterer, Attorney General, and Donald W. Macomber, Assistant Attorney General, were on brief for appellee.

Before TORRUELLA, Chief Judge, CYR, Senior Circuit Judge, and HILL, [*] Senior Circuit Judge.


Thomas Platt appeals from a district court order which dismissed his petition for a writ of habeas corpus. See 28 U.S.C. § 2254. We affirm.



In the early morning hours of July 17, 1994, two persons wearing camouflage net masks entered the office of the Econo-Lodge in Bangor, Maine, accosted the desk clerk with a knife, and made off with $1000 in cash. In due course, Platt and his friends, Robert King and Dale Braley, were arrested and charged with Class A robbery under Maine law. After entering into plea agreements with state and federal prosecutors, King and Braley were sentenced to lengthy prison terms.

At Platt's state court trial, King invoked the Fifth Amendment on the ground that he could be placed in jeopardy of future federal prosecution. The trial judge accordingly declared King an unavailable witness and the State introduced the transcript of a January 1995 police interview in which King described how he and Platt had robbed the Econo-Lodge while Braley waited in the car.

In order to safeguard Platt's rights under the Confrontation Clause, see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (admission of nontestifying codefendant's statements incriminating the defendant violates Confrontation Clause), the King statement was redacted to replace references to "Platt" with two asterisks (* *). When the King statement was read to the jury the two asterisks were referred to as "some person." Dale Braley testified that Platt and King had entered the motel while Braley waited in his car.

After Platt was convicted and sentenced to twelve years in prison, the Maine Supreme Judicial Court rejected his Bruton-based appeal in State v. Platt, 704 A.2d 370 (Me.1997). Three days before the SJC decision became final, however, the United States Supreme Court had issued its decision in Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), which held that the use of incriminating statements obtained from nontestifying codefendants violates the defendant's right of confrontation even though the prosecution redacts their statements by replacing the defendant's name with a neutral symbol. Id. at 1157.

Thereafter, Platt petitioned for habeas corpus relief in federal district court, contending that Gray required reversal of his state-court conviction. Although the district court denied the petition, it issued a certificate of appealability.



  1. The Federal Habeas Corpus Standard

    The Antiterrorism and Effective Death Penalty Act of 1996 narrowed the conditions in which state-court convictions may be reviewed in federal habeas corpus proceedings, by providing that the writ not be granted unless the state court's "adjudication of the claim ... 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." 28 U.S.C. § 2254(d)(1) (emphasis added). See O'Brien v. Dubois, 145 F.3d 16, 24 (1st Cir.1998).

    The parties agree that the admission of King's redacted statement into evidence violated Platt's rights under the Confrontation Clause if the Gray decision itself then constituted a "clearly established" Supreme Court precedent. But the parties disagree as to whether section 2254 requires that the pertinent Supreme Court precedent need have been decided by the time the state court rendered its confrontation-clause ruling, or thereafter but before the state-court conviction became "final."

    Although Platt was tried prior to the Gray decision, the state-court judgment did not become final until March 12, 1998, three days after Gray was decided. On an earlier occasion we deferred a ruling on this issue of first impression. See id. at 20 n. 3. We now do so once again, as the admission of the King statement into evidence amounted at most to harmless error.

  2. Harmless Error 1

    Platt argues that admission of the King statement was not harmless error, since the remaining evidence of his complicity in the Econo-Lodge robbery was not trustworthy. The burden rests with the State to establish that the putativeBruton-Gray error had no " 'substantial and injurious effect or influence in determining the jury's verdict,' " or that it "was [not] of such magnitude that it actually casts doubt on the integrity of the verdict." Sinnott v. Duval, 139 F.3d 12, 15 (1st Cir.1998) (citation omitted). Normally, we focus our analysis on three criteria: "(1) the extent to which the error permeated the proceeding, (2) the centrality of the issue affected by the error to the case as actually tried and (3) the relative strength of the properly admitted evidence of guilt." Levasseur v. Pepe, 70 F.3d 187, 193 (1st Cir.1995).

    1. The Robert King Statement

    At a post-arrest interview in January 1995, Robert King provided the following version of the Econo-Lodge robbery: On the evening of July 16, 1994, King and his friends, Dale Braley and Timothy Boudreau, were driving around Bangor in Boudreau's car when the police stopped the car and ticketed Boudreau for drag racing.

    Thereafter, Dale Braley and King left Boudreau and met "some person" (viz., Platt). Not long after this threesome began driving around Bangor in Braley's car, Platt suggested they rob the Econo-Lodge, claiming that he knew the clerk on duty and they could get "big bucks."

    Upon their arrival at the motel, King and Platt donned camouflage net masks or rubber Halloween masks, retrieved from Platt's red duffel bag. Platt was carrying a knife. 2 Dale Braley, the driver, waited in his car.

    When Platt and King confronted the motel clerk, she became frantic, which upset King, who had understood from Platt's earlier assertions about "knowing" the clerk that the robbery would be an "inside deal" and "real easy." After Platt brandished the knife and forced the clerk to open the cash register, he and King returned to the Braley car. Later, Platt divided the loot three ways.

    As the State acknowledges, Robert King's statement readily met the second of the three Levasseur tests--the centrality of the issue implicated by the error--since there can be no real question but that the jury would have understood "some person" as a reference to "Platt." See Gray, 118 S.Ct. at 1156 (holding that, as a "class," this sort of redacted statement poses too great a risk that the factfinder may presume that the unnamed actor was the defendant). Since the Econo-Lodge clerk could neither identify the two robbers, nor state whether a third participant had remained in the Braley car, the central dispute at trial was whether Platt or some other masked person (viz., Dale Braley) had accompanied Robert King into the motel office. Thus, the King statement was directly on point.

    2. The Pervasiveness of the Error and the Relative Strength of Other Evidence

    The fact that the Robert King statement implicated Platt is not necessarily dispositive of the harmless-error inquiry. Rather, the third criterion--"the relative strengths of the cases for the prosecution and the defense absent the offending evidence"--is "the major test of harmlessness." Sinnott, 139 F.3d at 18.

    As the other evidence of Platt's complicity--altogether aside from the King statement--overshadowed and undermined all defense theories, we conclude that the putative Bruton-Gray error did not "permeate[ ] the [state-court] proceeding." Levasseur, 70 F.3d at 193.

    a) Kim Stark

    Kim Stark, the clerk on duty at the Econo-Lodge on July 17, 1994, provided the following eyewitness version of the robbery: At 2 a.m., two persons entered the office while she was on the phone. Each wore a mask made of mesh netting. One wore a hooded camouflage shirt (State's Exhibit 17), had "dark eyes," wore no eyeglasses, spoke in a voice Stark did not recognize, wore gloves, and threatened her with a knife. The second robber, who did not speak, wore a blue-striped sweatshirt (State's Exhibit 1: blue-striped sweatshirt with the words "Old Orchard Beach, USA" on front). 3 The second robber removed approximately $1000 in cash from the register. Stark was unable to identify either robber. She knew Platt as a friend of a friend, and remembered having spoken with him on June 29, 1994, when he was an overnight guest at the Econo-Lodge.

    b) Dale Braley

    The State's other eyewitness to the robbery was codefendant Dale Braley, who gave the following account: In July 1994, he shared a Bangor apartment with his fiancee, Wendy, his brother Donald Braley, Thomas Platt, and Platt's girlfriend, Angela Turner. On the evening of July 16, 1994, Braley and his friend Robert King were...

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