226 F.3d 728 (6th Cir. 2000), 99-3325, Boggs v Collins

Docket Nº:99-3325
Citation:226 F.3d 728
Party Name:Roger Boggs, Petitioner-Appellee, v. Terry Collins, Warden, Respondent-Appellant.
Case Date:September 18, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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226 F.3d 728 (6th Cir. 2000)

Roger Boggs, Petitioner-Appellee,


Terry Collins, Warden, Respondent-Appellant.

No. 99-3325

United States Court of Appeals, Sixth Circuit

September 18, 2000

Argued: May 5, 2000

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 94-00209--Sandra S. Beckwith, District Judge.

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[Copyrighted Material Omitted]

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Before: ENGEL, JONES, and COLE, Circuit Judges.

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NATHANIEL R. JONES, Circuit Judge.

Respondent-Appellant Terry Collins, Warden of the Warren Correctional Institute in Lebanon, Ohio, appeals the district court's grant of Petitioner-Appellee Roger P. Boggs's § 2254 habeas petition. For the reasons stated herein, we REVERSE and REMAND for further proceedings consistent with this opinion.


On May 16, 1988, after a two-day trial in the Adams County, Ohio Court of Common Pleas, a jury convicted Boggs of the rape, kidnaping, and felonious assault of Elizabeth Berman. The court sentenced Boggs to fifteen to twenty-five years' imprisonment for rape, and eight to fifteen years' imprisonment for felonious assault, to be served consecutively. Boggs is currently incarcerated at the Warren Correctional Institution in Lebanon, Ohio.


At trial, Berman testified that around eight or nine p.m. on Christmas Eve, 1988, Boggs knocked on her door and asked to use her bathroom. Berman agreed, and after using the bathroom, Boggs approached her and began making sexual advances. She refused, and as his advances became more aggressive, she screamed "about four times really loud." J.A. at 130. According to Berman, Boggs then hit her on the side of the head, put a pillow over her face, and threatened to kill her if she continued screaming. For about ninety minutes,1 he repeatedly raped her vaginally, orally and anally.2 Boggs eventually left her apartment, after which Berman telephoned her mother, who testified that she received the call around ten-thirty. After arriving at Berman's apartment, her mother first took her to the apartment manager and the police to report the incident, and then to a hospital emergency room. Berman's mother testified that Berman initially was reluctant to say who had raped her. As they left the apartment building, however, she indicated that Boggs was the perpetrator.

Dr. Randall Volk, the emergency room doctor who examined Berman that evening, testified that she suffered several injuries consistent with the attack she had described. Although he did not find any injuries to the vulva or the vagina, he found a small rectal and anterior anal laceration that he determined to have been caused very recently. J.A. at 193-94. He also described bruises and contusions above her left eye, an episclera hematoma in her left eye consistent with a "striking blow," and an abrasion on her chest.

Other witnesses for the prosecution testified that they had seen Boggs in an apartment complex (Eddie's Apartments) adjacent to Berman's complex (Glendale Apartments) on the evening in question. Cathy Jordan testified that she saw Boggs four times that evening. Boggs entered her family's residence once and left soon thereafter. He knocked on her door two additional times, asking to be let in. He appeared drunk, staggering and slurring his speech. Jordan testified that his presence and tone, although not "all that forceful," scared her. J.A. at 209. On the fourth occasion, Jordan saw Boggs peeking in the window of an apartment across the parking lot. Eva White next testified that she, too, had encountered Boggs that evening; clearly drunk, "[h]e came to my door and said he was the friendly maintenance man." J.A. at 215. After refusing to let him in, she retrieved a crow bar in case he returned. Other witnesses testified that Boggs was drunk on the night in question,

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while his probation officer and a deputy sheriff, respectively, testified that Boggs later had told them that he was so drunk that he would "not be surprised at anything," J.A. at 227, and that he could not remember what he had done for a number of days.

Boggs's cross-examination of Berman adduced that she was a past drug user who had a long history of mental illness. She further acknowledged that, for many years, she had undergone psychiatric treatment for schizophrenia-like conditions and depression, and that she had experienced "psychotic episodes" in which she would "lose touch with what's real and what's not real." J.A. at 148; State v. Boggs, 624 N.E.2d 204, 206 (Ohio Ct. App. 1993). She had previously been hospitalized seven times for these conditions, the last time being six or seven years before the trial (around 1983). She had been treated for those conditions and drug abuse ever since, and was in psychiatric therapy at the time of the trial.

On cross-examination, Berman also described her attacker's appearance. He had two tattoos--one on his shoulder and one on his back. He had "[d]ark brown hair and [was] a lot bigger than me." J.A. at 151. She did not remember how he was dressed, his facial hair, or how he wore his hair, stating that she does not generally notice whether a man is bearded or clean shaven. She testified that her attacker did not smell of alcohol, and did not appear to be intoxicated. She also reiterated that she had screamed loudly prior to the attack, and acknowledged that her apartment walls were thin.

Testifying in his own defense, Boggs stated that he had been in Berman's apartment several times prior to Christmas Eve, 1988, and that he had shown her his tattoos then. He also stated that he had stopped by Berman's residence on the day in question: "I stopped [by] earlier that morning, I was leaving and I pecked on the door [to] see if Gary [Rothwell, his boss and Berman's boyfriend] had made it in . . . and I told her when Gary come in, 'Merry Christmas,' and I went on my way." J.A. at 271. Over the remainder of the day, Boggs testified, he drank with a number of people. Between seven and nine o'clock that evening, he drank at his brother's house, went to a party at a friend's house, "and from there I just went all over the neighborhood," visiting different neighbors' homes. J.A. at 273. After nine, Boggs explained, "I was just roaming" around a nearby apartment complex, "aggravating everybody in the whole wide world." J.A. at 287. While Boggs's mother, in a deposition, stated that Boggs arrived home at ten-fifty that evening,3 he stated that he could not remember what time he arrived at her house. J.A. at 287. He also denied having seen Eva White that evening, and having been to Berman's apartment at any time that night. Finally, he denied having told the deputy sheriff and probation officer that he was too drunk to remember his actions, although he did acknowledge that he told his mother on Christmas day that if he "did [rape Berman, he] didn't remember." J.A. at 280.

Neither hair (other than Berman's) nor semen was found on Berman's person or clothing, or anywhere in her apartment4. At trial, Boggs showed the jury that he had fourteen large tattoos covering his entire upper torso. Exhibits introduced during his testimony also showed that Boggs had a full beard at the time of the alleged attack. Several of Berman's neighbors testified that on the night in

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question, they did not hear screams from her apartment. Several witnesses also testified that they saw him at various times between roughly seven and nine p.m.: Cathy Jordan testified that she saw him four times, between seven-thirty and nine; April Jones saw him around seven-fifteen; Rodney Denning stated that Boggs stopped by his home for about ten minutes between eight and nine o'clock. Samuel and Paula Freeland each stated that Boggs was at their residence for about fifteen minutes sometime between eight and ten p.m., with Paula Freeland estimating that it was most likely between nine and nine-thirty. None of the witnesses confirmed Bogg's written alibi that he was at friends' houses between ten and ten forty-five. J.A. at 284-85. Those who witnessed him stated that Boggs appeared very drunk, with some testifying that they could smell alcohol on him.


This appeal centers on the trial court's decision to limit Boggs's cross-examination of Berman. Specifically, Boggs sought to question Berman about a false accusation of rape that she allegedly made against another man approximately one month before she accused Boggs of rape. Boggs also sought to introduce the testimony of two witnesses, Wilma Copas, the apartment manager, and Rick Yazell, another tenant, concerning the prior false accusation. According to Boggs, Copas would have testified that Berman told her that she had been raped by Yazell, and Yazell would have testified that the accusation was untrue. The trial court, however, prohibited all questioning concerning the alleged accusation. The dialogue at trial was as follows:

[Boggs's counsel]. Miss Berman, have you ever accused anybody else of having raped you in the past?

[Prosecutor:] Objection, your Honor.

The Court: Sustained

. .

[Boggs's counsel]: Your honor, I have testimony to present that she told Mrs. Copas that Rick Yazell raped her approximately a month before this time and Rick Yazell will testify that he did not.

[Prosecutor:] So what?

[Boggs's counsel]: Well, she's made it up again, that's what I want to find out if she's made up all of this.

The Court: The only thing would be the credibility aspect and yet we're going right...

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