428 F.3d 41 (1st Cir. 2005), 05-1555, Petrillo v. O'Neill

Docket Nº:05-1555.
Citation:428 F.3d 41
Party Name:Augustine PETRILLO, Petitioner, Appellant, v. Stephen O'NEILL, Respondent, Appellee.
Case Date:November 01, 2005
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 41

428 F.3d 41 (1st Cir. 2005)

Augustine PETRILLO, Petitioner, Appellant,


Stephen O'NEILL, Respondent, Appellee.

No. 05-1555.

United States Court of Appeals, First Circuit.

Nov. 1, 2005

        Heard Oct. 3, 2005.


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        Douglas J. Beaton for appellant.

        David M. Lieber, Assistant Attorney General, Criminal Bureau, with whom Thomas F. Reilly, Attorney General, was on brief for appellee.

        Before Lynch, Circuit Judge, Campbell and Stahl, Senior Circuit Judges.

        CAMPBELL, Senior Circuit Judge.

        Appellant petitioner Augustine Petrillo ("Petrillo") appeals from a final order of the United States District Court for the District of Massachusetts denying his habeas corpus petition.1 Petrillo was convicted in state court of one count each of aggravated rape, kidnapping, and threatening to commit assault. In his petition, he argues that the Massachusetts Appeals Court failed to apply the appropriate constitutional standard in reviewing an evidentiary error committed at his trial. We affirm the denial of the habeas petition.

        I. Background

        The facts of the case, set out in Commonwealth v. Augustine Petrillo, 50 Mass. App. Ct. 104, 735 N.E.2d 395 (2000), cert. denied, 532 U.S. 1030 (2001), are summarized below. Petrillo's victim, a 24-year-old immigrant from the Dominican Republic who spoke only Spanish, met him in the fall of 1995. Thinking he could help her learn English and gain financial independence from her mother, she began seeing him and soon moved into his rooms at a residential hotel. Thereafter, she alleged, Petrillo began to force her to have sex with him. He threatened her with knives and trapped her in the apartment for long periods of time. She left him on February 22, 1996.

        At trial, she testified that between February 19-22, 1996, Petrillo bound her with duct tape and forced her to have sex with him. She testified that "he grabbed me and put me across his knees and hit me on my butt, " that she was required to perform "from behind," as well as lying on her back with her legs above her head. On these occasions, she stated, Petrillo played pornographic videos and imitated "everything that was on the videos," in addition to doing "other things that were his own things."

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        The state's case focused on the testimony of the victim and of witnesses who corroborated some parts of her testimony. One witness testified that he had found the victim on February 22 hiding behind a car in his driveway. She had fled the apartment and appeared confused and upset. He took her to the police station. On February 28, 1996, the police obtained a search warrant for Petrillo's hotel room and recovered a number of items, including two pornographic videotapes which are at issue in this appeal.

        The defense called nine witnesses at trial, trying to demonstrate that there were several occasions on which the victim was free to escape or ask for help but did not do so. The defendant did not testify but through other witnesses sought to give the impression that he had had only consensual sex with the victim. The testimony of the defense witnesses and cross-examination of the government witnesses gave some foundation for the defense theory, rejected by the jury, that the victim was fabricating her story because the defendant had not provided the expected financial assistance.

        At the beginning of trial in Suffolk County Superior Court, the court heard a motion in limine about...

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