70 F.3d 187 (1st Cir. 1995), 95-1346, Levasseur v. Pepe

Docket Nº:95-1346.
Citation:70 F.3d 187
Party Name:Mark LEVASSEUR, Appellant, v. Peter PEPE, Appellee.
Case Date:November 22, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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70 F.3d 187 (1st Cir. 1995)

Mark LEVASSEUR, Appellant,


Peter PEPE, Appellee.

No. 95-1346.

United States Court of Appeals, First Circuit

November 22, 1995

Heard Sept. 15, 1995.

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[Copyrighted Material Omitted]

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Thomas J. Gleason, Haverhill, MA, for appellant.

William J. Duensing, Assistant Attorney General, with whom Scott Harshbarger, Attorney General of the Commonwealth of Massachusetts, Boston, MA, was on brief for appellee.

Before STAHL, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

STAHL, Circuit Judge.

In January of 1990, petitioner Mark Levasseur was convicted in a Massachusetts state court of rape, indecent assault and battery, and assault and battery. After exhausting his state court remedies, Levasseur sought a writ of habeas corpus in the United States District Court for the District of Massachusetts, pursuant to 28 U.S.C. Sec. 2254, claiming that his state convictions were obtained in violation of the United States Constitution. Specifically, Levasseur asserted that an improper admission of hearsay testimony violated his Sixth Amendment right to confrontation, an unduly suggestive identification procedure violated his Fourteenth Amendment right to due process of law, and his trial counsel's deficient performance deprived him of his Sixth Amendment right to the effective assistance of counsel. The district court denied the habeas application, and this appeal followed. For the reasons discussed below, we affirm.



A. Pretrial Events 1

At some time between the late evening and early morning hours of June 30 and July 1, 1988, a man driving a big, dark-colored, "4 X 4" pickup truck approached the victim ("Jane Doe") as she was walking on the sidewalk and asked her if she wanted a ride. Undeterred by Doe's initial rejection, the driver returned and Doe relented. Instead of dropping Doe at her destination, the driver took

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her to a deserted area behind a factory and raped her on the truck seat. Her attacker, still restraining Doe, drove away from the scene and then pushed her out of the truck.

Ronald Ralls, driving behind the truck, saw Doe fall from the truck and stopped to render aid. Ralls drove Doe to his home and notified the police. Officer Mendes arrived, but Doe rebuffed his attempts to approach her. The officer detected the smell of alcohol on Doe's breath. Emergency paramedics transported Doe to the hospital. Doe's continued refusal to let anyone touch her prevented the hospital staff from administering a "rape kit." Eventually, Doe, in the presence of Officer Mendes, related the incident in general terms to a female hospital administrator.

Five days later at the police station, Doe further recounted the incident to Inspector Boutselis. She described her assailant's pickup truck as a big, dark "4 X 4" sitting high off the ground and her attacker as a white male with a medium-type build, thin face, high cheekbones, dark hair, dark eyelashes, and a small moustache. Boutselis showed Doe over six thousand photographs of white males. A 1983 photograph of Levasseur was among the six thousand. Although Doe said several photographs, including Levasseur's, looked similar to her assailant, she was unable to make an identification.

On July 13, 1988, because of a new lead, Inspectors Boutselis and Guilfoyle began to focus on Levasseur. On their way to Levasseur's residence in an unmarked car, Boutselis and Guilfoyle noticed a pickup truck fitting Doe's description. Boutselis and Guilfoyle observed the truck pull over to the side of the road, saw the driver beckon to a young blond-haired girl walking on the sidewalk, and heard him say "Come on." After the girl continued walking and the truck drove on, Guilfoyle questioned the girl, who said that the man in the truck had offered her a ride but she did not know him. Learning from the police dispatcher that the truck belonged to Levasseur, Boutselis and Guilfoyle stopped Levasseur and asked about the girl. Levasseur told them that she was his cousin and he had offered her a ride, but he did not volunteer her name. Levasseur agreed to go to the police station, where Boutselis and Guilfoyle questioned and photographed him.

The next day, Inspector Boutselis showed Doe a group of sixty photographs including Levasseur's photograph from the day before. Doe stated that Levasseur's recent photograph looked like her assailant and asked Boutselis for more photographs of Levasseur. Upon examining Levasseur's 1983 photograph, Doe said that it looked more like her assailant than the recent photograph. Given the seriousness of the charges, Doe refused to make a positive identification of Levasseur based solely on the photographs and requested to see him in person.

Using an unmarked car, Inspector Boutselis and Doe began field identifications. 2 Over the next five months, they made nine excursions lasting two to three hours each to locations near Levasseur's place of work and home. On five occasions, they sat outside the Textron plant in Wilmington thinking that Levasseur was employed there. Levasseur, it was later discovered, worked at Digital Equipment Corporation, not Textron. On the remaining four occasions, Boutselis and Doe sat at an intersection in North Chelmsford one-half mile from Levasseur's home. Doe never positively identified anyone on the first eight excursions. During the ninth trip, on December 16, 1988, however, Doe saw Levasseur's truck approach and exclaimed, "Wow, this looks like it." As the truck came within six feet of Doe and Levasseur looked in her direction, Doe screamed, "It's him, it's him. Get me ... out of here right now."

B. The Trial

On January 24, 1990, Levasseur was brought to trial on charges of rape, indecent assault and battery, and assault and battery. The prosecution called six witnesses in its direct case and one witness on rebuttal, with Levasseur calling himself, his wife, and his mother-in-law as his defense witnesses.

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In his rebuttal case, the district attorney called Inspector Guilfoyle to testify about the July 13, 1988, incident with the blond-haired girl (we use the language used at trial and refer to "the blond-girl incident"). In recounting his conversation with the blond girl, Inspector Guilfoyle uttered the following hearsay testimony:

Q. Sir, ... what was the nature of the conversation with her [the blond girl]?

A. We pulled up; we were in an unmarked vehicle. We identified ourselves to the young lady. We asked her if she knew the gentleman in the truck; she said no. We asked her if she could tell us what he wanted and she said he offered her a ride.

(emphasis added).

After a three-day trial, the jury found Levasseur guilty of rape, indecent assault and battery, and assault and battery. Levasseur was sentenced to concurrent state prison terms of ten to fifteen years and four to five years.

C. Post-Conviction Proceedings

After the jury's verdict, Levasseur filed a motion for a new trial which the trial court denied. The Massachusetts Appeals Court affirmed the convictions, and the Supreme Judicial Court of the Commonwealth of Massachusetts denied Levasseur's petition to obtain further appellate review. The United States Supreme Court denied Levasseur's petition for a writ of certiorari.

Having exhausted his state remedies, Levasseur filed a petition for habeas corpus in the United States District Court for the District of Massachusetts. The district court denied the petition for the following reasons. Levasseur's trial counsel had procedurally defaulted on the claim of unduly suggestive identification by his failure to object. The court held that Levasseur could not excuse this procedural default because he could not show cause for that failure via a claim of ineffective assistance of counsel. Counsel's failure to object did not constitute deficient performance because the identification method was not unduly suggestive. With respect to the hearsay claim, the court held that Levasseur's Confrontation Clause rights were violated, but the error was harmless. Finally, according to the district court, Levasseur's remaining ineffective-assistance-of-counsel claims failed because trial counsel's overall performance was not deficient and Levasseur suffered no prejudice.



On appeal, Levasseur makes the following four arguments: (1) he did not procedurally default on his Due Process and Confrontation Clause claims, (2) the violation of his Sixth Amendment right to confrontation was not harmless error, (3) the pre-trial identification procedure was unduly suggestive and violated his Fourteenth Amendment right to due process of law, and (4) he was denied effective assistance of counsel. We discuss each argument in turn.

A. Procedural Default

Levasseur asserts that the district court erred in holding that he procedurally defaulted on his Due Process and Confrontation Clause claims. Levasseur admits that his trial counsel did not object to the pre-trial identification procedure and the hearsay statement as each was introduced and acknowledges that, to consider such claims on appeal, Massachusetts requires contemporaneous objection to their admission as evidence at trial, Mass.R.Crim.P. 24(b). He contends, however, that his filing a motion for new trial and the trial court's consideration of the issues presented acted to resurrect and preserve these claims for review. We disagree.

Under Massachusetts case law, issues previously lost for appeal may be resurrected and preserved for appellate review if a trial judge exercises his discretion and considers them in ruling on a motion for a new trial. See Commonwealth v. Harrington, 379 Mass. 446, 399 N.E.2d 475, 478 (1980); Commonwealth v. Gagne, 367...

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