Brown v. Ruane

• Decision Date: 05 January 2011
• Docket Number: No. 09–2508.,09–2508.
• Citation: 630 F.3d 62
• Parties: Troy BROWN, Petitioner, Appellant,v.Paul RUANE, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

630 F.3d 62

Troy BROWN, Petitioner, Appellant,

v.Paul RUANE, Respondent, Appellee.

No. 09–2508.

United States Court of Appeals, First Circuit.

Heard May 6, 2010.Decided Jan. 5, 2011.

Dennis Shedd for appellant.Jessica V. Barnett, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee.Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.LIPEZ, Circuit Judge.

Following a jury trial in the Massachusetts Superior Court, petitioner Troy Brown was convicted of armed assault with intent to rob a person sixty years of age or older. Rejecting Brown's contention that the trial court unconstitutionally restricted his cross-examination of two investigating police officers in contravention of the Sixth and Fourteenth Amendments of the United States Constitution, the Massachusetts Appeals Court affirmed Brown's conviction in an unpublished memorandum of decision. See Commonwealth v. Brown, 67 Mass.App.Ct. 1116, 857 N.E.2d 507 (unpublished table decision), 2006 WL 3392089 (Mass.App.Ct. Nov.24, 2006). Both the Massachusetts Supreme Judicial Court and the United States Supreme Court denied discretionary review. See Commonwealth v. Brown, 448 Mass. 1103, 861 N.E.2d 28 (2007); Brown v. Massachusetts, 552 U.S. 834, 128 S.Ct. 64, 169 L.Ed.2d 52 (2007). Brown then petitioned in federal district court for a writ of habeas corpus, contending that the Appeals Court's analysis of his confrontation claim was either contrary to the Supreme Court's holding in Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), or was an unreasonable application of both Van Arsdall and established principles of due process. The district court disagreed and denied the petition. After careful consideration, we affirm.

I.

We recite the relevant facts as set forth by the Appeals Court, supplemented where necessary by our review of the record.¹

On August 19, 2002, Daniel Lynch was assaulted by three young men during a late night walk through the “Corky Row” neighborhood of Fall River, Massachusetts. Lynch, who was sixty-five years old and in poor health, was initially confronted during his walk by Brown and a second man, Tyrone Smith. Lynch and Smith engaged in a brief verbal altercation. Smith then struck Lynch on the side of the head, knocking him against a fence and then onto the street. Lynch testified that, at this point, he witnessed Brown standing approximately three to five feet away from him, holding a small bicycle over his head. When Brown asked Lynch whether he had any money, Lynch replied that he did not. Lynch attempted to leave the area, but Brown followed close behind. Lynch also noticed a third man approaching from behind Brown. Smith suddenly reappeared and struck Lynch again. Lynch then felt a second blow to the top of his head that knocked him out briefly. When Lynch regained consciousness, Brown was going through his pockets. The assailants left after finding nothing.

Lynch was interviewed later that morning by police officer David Gouveia. At that time, Lynch described the man who had held the bicycle and had gone through his pockets as being five feet six inches in height, 140 pounds, with long sideburns, a slight moustache, and a short stringy beard. Officer Gouveia showed Lynch a book of photographs, which included one of Smith but not one of Brown. Lynch was unable to identify anyone in the photographs at that time. Approximately two weeks later, Officer Gouveia showed Lynch a second photo array, this time containing only seven photographs. From this array, Lynch identified Smith as the man who had punched him and Brown as the man who had held the bicycle.

Brown was arrested on September 11, and indicted on September 25. ² At the time of his arrest, Brown was attempting to crawl under a bed in his apartment. Brown later told police that he had been too drunk to remember anything on the night in question, but denied being involved in the assault.

Prior to his trial, Brown unsuccessfully moved in limine to introduce into evidence a hearsay statement that Smith had made to police following his arrest. Smith apparently admitted to encountering Lynch on the night in question. He informed police, however, that he had been with a man named Cagney Bettencourt, not Brown, at the time of the incident and that neither he nor Bettencourt had assaulted Lynch.³ Brown wished to use Smith's statement to impeach the credibility of Lynch's identification of Brown from the photo array, to demonstrate the likelihood that Bettencourt was the true culprit, and to cast doubt on the thoroughness of the police investigation. Although the trial judge denied Brown's motion, he ruled that defense counsel could inquire whether the police had interviewed Smith and what action, if any, they took as a result of that interview.

Lynch testified for the Commonwealth at the trial; he again identified Brown as the man who had held the bicycle. He further testified that he was sure of his identification. Brown's trial counsel cross-examined Lynch regarding his ability to make an accurate identification. The Commonwealth also called as witnesses both Officer Gouveia and the officer to whom Smith had made his statement, Officer James Smith. Brown's counsel cross-examined Officer Gouveia regarding the discrepancy between Lynch's initial physical description of his assailant and Brown's physical characteristics.⁴ During this cross-examination, Brown's counsel also elicited from Officer Gouveia that Bettencourt's name had surfaced during the investigation, and he introduced a photograph of Bettencourt in evidence.

Notwithstanding his prior ruling, however, the trial judge sustained hearsay objections to defense counsel's repeated inquiry into whether Officer Gouveia's investigation of Bettencourt began after police interviewed Smith and whether Officer Gouveia considered Bettencourt to be a suspect during his investigation.⁵ The trial judge sustained similar objections to defense counsel's inquiry into whether Officer Smith had interviewed Smith or had occasion to show him any photographs.

Although Brown presented alibi witnesses to bolster his misidentification defense, and although his trial counsel argued to the jury that Bettencourt better fit the physical description of Lynch's assailant, Brown chose not to call Smith as a witness in his defense. As noted by the Appeals Court, “[t]rial counsel chose not to call Smith as a witness because he was not sure that Smith would affirm his earlier statement to police.” Brown, 2006 WL 3392089, at *2.

Brown appealed his conviction, asserting, among other things, that the trial judge's limitation on his cross-examination of the two officers denied him the right to confront the witnesses against him in violation of Article XII of the Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments to the United States Constitution. The Appeals Court denied relief. In so doing, that court employed a balancing test established by the Massachusetts Supreme Judicial Court in Commonwealth v. Kirouac, 405 Mass. 557, 542 N.E.2d 270, 273 (1989), and reaffirmed in Commonwealth v. Miles, 420 Mass. 67, 648 N.E.2d 719, 724 (1995). According to the Kirouac court:

In deciding whether a defendant's constitutional right to cross-examine and thus confront a witness against him has been denied because of an unreasonable limitation of cross-examination, a court must weigh the materiality of the witness's direct testimony and the degree of the restriction on cross-examination. The determination can only be made on a case-by-case basis.

Kirouac, 542 N.E.2d at 273.

Applying the Kirouac test to Brown's case, the Appeals Court first noted that “testimony from Officers Smith and Gouveia regarding their investigation of Bettencourt was marginally relevant to the Commonwealth's case, which was based almost entirely on Lynch's identification of the defendant.” Brown, 2006 WL 3392089, at *3. The court then explained that the defendant had been permitted ample opportunity to generate reasonable doubt about the accuracy of Lynch's identification through unfettered cross-examination of Lynch, extensive cross-examination of Officer Gouveia, and defense counsel's forceful closing argument. The court concluded that Brown had not been prejudiced by the limitations on cross-examination and thus that his right to confrontation had not been violated.

Brown filed a petition for a writ of habeas corpus in federal district court in April 2008, arguing that the Kirouac test is contrary to the clearly established rule enunciated by the Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), and that, alternatively, the Appeals Court unreasonably applied the Supreme Court's relevant Sixth and Fourteenth Amendment jurisprudence in concluding that the restrictions on cross-examination did not deny him the right to confront the witnesses against him and to thereby present a complete defense. He also contended that the Appeals Court decision contained an unreasonable factual finding. After first rejecting the government's procedural arguments concerning exhaustion and judicial estoppel, the district court denied Brown's petition on the merits. ⁶ The court agreed with Brown that Van Arsdall is a source of clearly established federal law relevant to the petition, but concluded that the Appeals Court's decision was neither contrary to nor an unreasonable application of Van Arsdall.

II.

We review the district court's denial of habeas relief de novo and may affirm on any ground made manifest by the record. Pike v. Guarino, 492 F.3d 61, 69 (1st Cir.2007). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas relief with respect to any claim that was adjudicated on the merits in state court unless the state court's decision either (1) “was contrary to, or involved an...