Ellsworth v. Warden

• Decision Date: 16 June 2003
• Docket Number: No. 02-1226.,02-1226.
• Citation: 333 F.3d 1
• Parties: Raymond ELLSWORTH, Petitioner, Appellant, v. WARDEN, New Hampshire State Prison, and Philip McLaughlin, Attorney General for the State of New Hampshire, Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1

333 F.3d 1

Raymond ELLSWORTH, Petitioner, Appellant, v. WARDEN, New Hampshire State Prison, and Philip McLaughlin, Attorney General for the State of New Hampshire, Respondents, Appellees.

No. 02-1226.

United States Court of Appeals, First Circuit.

Submitted May 29, 2003.

Decided June 16, 2003.

Andrew R. Schulman with whom Getman, Stacey, Tamposi, Schulthess & Steere, P.A. were on brief, for appellant.

James D. Rosenberg, Assistant Attorney General, for appellees.

Before BOUDIN, Chief Judge, TORRUELLA, SELYA, LYNCH, LIPEZ, and HOWARD,^* Circuit Judges.

OPINION EN BANC

BOUDIN, Chief Judge.

Raymond Ellsworth appeals from the district court's judgment denying his petition under 28 U.S.C. § 2254 (2000) for a writ of habeas corpus. Between 1988 and 1992, Ellsworth worked at the Spaulding Youth Center ("Spaulding"), a residential school and treatment facility for children with emotional, behavioral, and neurological impairments, in Northfield, New Hampshire. Ellsworth was a "cottage teacher" at Colcord Cottage, a dormitory facility at Spaulding for boys between the ages of six and twelve. His job included supervising the boys at meals and on field trips, meeting with several students on a weekly basis, and sleeping in the staff room at the cottage approximately once a week.

In November 1991, an eleven-year-old boy named Matthew was transferred from another treatment facility to Spaulding's Colcord Cottage. In November 1992, Matthew accused Ellsworth of sexual abuse. In January 1995, Ellsworth was tried in New Hampshire state court on four counts of aggravated felonious sexual assault and eight counts of felonious sexual abuse, relating to three different alleged episodes of abuse. The primary evidence at trial was the conflicting testimony of Ellsworth and Matthew.

Matthew testified that Ellsworth sexually abused him on three separate occasions. He claimed that the first occurred on a bicycle trip near Spaulding in the summer of 1992. Matthew stated that Ellsworth lured him into the woods by claiming that he heard a noise and then pulled down his own pants and told Matthew to touch and put his mouth on Ellsworth's penis. Matthew said that Ellsworth's penis became erect when Matthew did this and that Ellsworth also took off Matthew's pants and touched his penis. Matthew claims that Ellsworth threatened to hurt him if he told anyone about the incident.

According to Matthew, the second incident took place at a swimming pond near Spaulding when Matthew went swimming with Ellsworth and another Spaulding resident named Stephen. Matthew claimed that the three were in the pond and that Ellsworth asked Stephen to swim away. Matthew recalled that no one else was at the pond and that Ellsworth removed both of their bathing suits, touched Matthew's penis and buttocks, and told him to put his mouth on Ellsworth's penis. Matthew said that Ellsworth again told him not to tell anyone about the incident.

The third and final incident allegedly occurred when Matthew returned early to Spaulding from a weekend home-visit and Ellsworth was the only staff member on duty. Matthew stated that while he was putting on his pajamas, Ellsworth entered his room and touched him. He also asked Matthew to put his mouth on Ellsworth's penis.

Ellsworth denied all three incidents. He claimed that he never took a bicycle ride with Matthew without others present, and that he did not draw Matthew into the woods. He also stated that he did go swimming with Matthew and Stephen, but that nothing sexual occurred. Ellsworth denied that he ever abused Matthew at the cottage.

Little direct or circumstantial evidence supported either side's version of events. Another cottage resident testified that Matthew had previously told him that Ellsworth had molested him in the afternoon but mentioned nothing concerning the evening abuse about which Matthew testified at trial. Stephen, the boy who accompanied Matthew and Ellsworth on the swimming trip, also testified and stated that he went on two such trips with Matthew, but that the pond had been crowded on both occasions and that he had been within twenty feet of Matthew and Ellsworth and did not notice anything unusual. Ellsworth offered evidence, described below, seeking to cast doubt on Matthew's credibility but the evidence was not allowed.

The jury convicted Ellsworth on two counts of aggravated felonious sexual assault and five counts of felonious sexual assault. He was sentenced to 18½ to 37 years in prison, with an additional 14 to 28 years in prison deferred. The New Hampshire Supreme Court affirmed Ellsworth's conviction. New Hampshire v. Ellsworth, 142 N.H. 710, 709 A.2d 768 (1998). Ellsworth then petitioned for habeas relief in the federal district court on three grounds: first, that the prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to turn over exculpatory evidence; second, that the trial court violated the confrontation clause, U.S. Const. amend. VI, by refusing to permit him to cross-examine Matthew as to sexual abuse by a babysitter when he was three; and third, that the trial court had similarly erred in excluding testimony from a counselor at the Pine Haven School, where Matthew lived after he left Spaulding, that Matthew falsely accused boys there of peeking at him in the shower and at the toilet and of stealing his toys.

The district court rejected all three constitutional claims and denied the petition. Ellsworth appealed, and a divided panel of this court reversed the district court on all three grounds. Concerned with the precedential effect of certain of the panel's rulings, the en banc court granted rehearing sua sponte and withdrew the panel opinion (as is customary when rehearing en banc is granted). We now resolve the merits, concluding that only one of Ellsworth's three constitutional claims is substantial and that as to it further proceedings are required.

Appellate review of the district court's denial of habeas relief is de novo, Almanzar v. Maloney, 281 F.3d 300, 303 (1st Cir.2002), cert. denied, 537 U.S. 817 123 S.Ct. 86, 154 L.Ed.2d 22 (2002), but we accord deference to the state court as to issues it actually decided. 28 U.S.C. § 2254(d)(1) (2000). In this case, the state court addressed only Ellsworth's claim that the trial court violated his rights under the confrontation clause by refusing to allow him to admit testimony from the counselor at Pine Haven. The state court did not address Ellsworth's other two claims, and thus our review of those claims is de novo. Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.2001), cert. denied, 535 U.S. 1018, 122 S.Ct. 1609, 152 L.Ed.2d 623 (2002).¹

We begin with the Brady claim. Brady requires the prosecution to provide a defendant access to exculpatory evidence that is in the prosecutor's control. 373 U.S. at 87, 83 S.Ct. 1194; Conley v. United States, 323 F.3d 7, 14 (1st Cir.2003) (en banc). Withheld evidence warrants undoing a conviction only when "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different," a "reasonable probability" here being one that is "sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

Ellsworth claims that the state withheld evidence as to three matters but only one seems to us potentially powerful enough even arguably to meet the reasonable probability standard.² This is an intake note written by Jan Smith, Director of the Program for Emotionally Disturbed Boys at Spaulding, indicating that Matthew alleged that he was abused by staff members at Hampstead Hospital, where he stayed prior to his stay at Spaulding, that Matthew expressed concern that he would be sexually assaulted at Spaulding, and that Spaulding would need to take special precautions to protect staff members from false accusations if Matthew enrolled.

The intake note is exculpatory; it suggests that Matthew had made false accusations of sexual abuse against caretakers in the past. But there are two problems: first, the note itself is inadmissible as double hearsay; someone at Hampstead Hospital told Jan Smith that Matthew's accusations there were false and she then recorded this in her intake note. See New Hampshire v. Winders, 127 N.H. 471, 503 A.2d 798, 802 (1985).³ Second, New Hampshire only permits the defendant to introduce extrinsic evidence of a prior false allegation of sexual assault by the victim if the allegations are similar and the defendant can show that the prior allegations were "demonstrably false." New Hampshire v. Gordon, 146 N.H. 258, 770 A.2d 702, 704 (2001); accord New Hampshire v. White, 145 N.H. 544, 765 A.2d 156, 159 (2000).

The circuits are split on whether a petitioner can have a viable Brady claim if the withheld evidence itself is inadmissible. Most circuits addressing the issue have said yes if the withheld evidence would have led directly to material admissible evidence.⁴ We have never squarely ruled on this question, but cf. United States v. Hemmer, 729 F.2d 10, 16 n. 3 (1st Cir.), cert. denied, 467 U.S. 1218, 104 S.Ct. 2666, 81 L.Ed.2d 371 (1984); United States v. Ranney, 719 F.2d 1183, 1190 (1st Cir.1983), yet given the policy underlying Brady, we think it plain that evidence itself inadmissible could be so promising a lead to strong exculpatory evidence that there could be no justification for withholding it. Wood v. Bartholomew, 516 U.S. 1, 6-8, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995), implicitly assumes this is so.

Whether the intake note at issue in this case undermines confidence in the verdict is a more difficult question. The clear implication of Jan Smith's note is that someone at Hampstead Hospital, where Matthew made the prior allegations, told her that the allegations were false. If the defense had known about the note before trial, it presumably could have traced...