Evans v. Verdini

• Decision Date: 18 October 2006
• Docket Number: No. 05-2272.,05-2272.
• Citation: 466 F.3d 141
• Parties: John EVANS, Petitioner, Appellant, v. Paul VERDINI, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

466 F.3d 141

John EVANS, Petitioner, Appellant, v. Paul VERDINI, Respondent, Appellee.

No. 05-2272.

United States Court of Appeals, First Circuit.

Heard September 11, 2006.

Decided October 18, 2006.

Rehearing and Rehearing En Banc Denied November 14, 2006.

Emanuel Howard for petitioner.

Susanne G. Reardon, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for respondent.

Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

John Evans was convicted in Massachusetts state court of the first-degree murder of Lyle Jackson and was sentenced to life in prison. His conviction was affirmed by the Massachusetts Supreme Judicial Court (SJC). See Commonwealth v. Evans, 439 Mass. 184, 786 N.E.2d 375, 380 (Mass. 2003). His subsequent petition in federal district court for a writ of habeas corpus was denied. See Evans v. Verdini, No. Civ.A. 04-10323, 2005 WL 1638119, at *3 (D.Mass. Jul.13, 2005).

Evans appeals from that denial. He argues that the exclusion of certain defense witness testimony concerning a recanted prior statement violated his Sixth Amendment right to present a defense. He also argues that the state prosecutor violated the rule that a prosecutor may not impeach his own witness as a ploy for the introduction of inadmissible evidence, and that this violated his Sixth Amendment Confrontation Clause rights. These arguments cause us to explore the topic of impeachment and recanted statements.

We reject Evans's claims and affirm the district court's denial of the petition.

I.

We briefly recount the facts as recited in detail in Commonwealth v. Evans, 786 N.E.2d at 381.

In the early morning of January 25, 1995, Jackson and his friend, Marcello Holliday, were at Cortee's, a nightclub in the Dorchester area of Boston. Evans also was at Cortee's with his brother Jimmy Evans (Jimmy) and two friends, Robert Brown and Ronald Tinsley. Around 1:45 a.m., Jackson and Holliday left Cortee's for Walaikum's, a nearby restaurant. They arrived at approximately 2:20 a.m. About fifteen minutes later, Evans, his brother, Brown, and Tinsley entered Walaikum's, then crowded with customers. Evans, Jimmy, Brown, and Tinsley left after a minute or so, but quickly reentered the restaurant. Tinsley began talking with a young woman, and Brown said to Evans and Jimmy, "That's one of them right there." After verifying that Brown was referring to Jackson, Jimmy drew a gun and approached Jackson, who backed away, stumbled, crawled into a corner, and began begging for his life. Jimmy then shot at Jackson four or five times. After seeing Jimmy shoot at Jackson, Willy Wiggins, who owned Walaikum's, went to the back of the restaurant and called the police.

Alton Clarke, another customer, tried to leave the restaurant and was confronted by Evans, who also was armed with a handgun. Evans allowed Clarke to leave once he stated that he had nothing to do with Jackson. Evans then approached Jackson and shot at him once.

Evans, Jimmy, Brown, and Tinsley left Walaikum's, and a car chase ensued. All four were apprehended by police after they turned into a dead-end street and tried to flee on foot.

Jackson died from an infection related to his gunshot wounds. He had been shot three times.

The Evans brothers, Brown, and Tinsley were charged with murder by joint venture and tried together before a jury. At trial, the government introduced the testimony of Marvette Neal, who knew Jackson, Evans, and Jimmy. Neal had told police approximately two weeks after the shooting that he had seen both Evans and his brother shoot at Jackson in Walaikum's. Later that month, however, when he testified before the grand jury considering the charges against Evans, Neal stated only that he had seen Evans and Jimmy inside Cortee's and Walaikum's. By the time of Evans's trial, in the fall of 1996, Neal had backed further away from his initial statement. During voir dire, Neal stated that he could recall no more than that he had seen Jackson at Cortee's and Walaikum's. He testified that he did not remember making his prior statement to police, that he did not see Evans or Jimmy shoot Jackson, and that he did not tell police anything to that effect.

After voir dire, the prosecution proceeded with Neal as a witness; Neal testified before the jury that he could not recall having seen Evans or Jimmy at Cortee's or Walaikum's on the night in question. The trial judge, over objection, permitted the government to introduce Neal's grand jury testimony to the contrary as substantive evidence. The government also was permitted, again over objection, to lay a foundation to impeach Neal with his prior inconsistent statement to the police.

The defense then cross-examined Neal. In particular, Evans's counsel asked Neal whether he had seen Evans or his brother with a gun on the night of the shooting. Neal testified that he had not.

The next day, the government called Detective Kenneth Dorch, who had taken Neal's initial statement. Detective Dorch testified to Neal's prior inconsistent statement — that is, that Neal had told him that he had seen Evans shoot at Jackson. The trial judge instructed the jury six times during Detective Dorch's testimony that the prior statement was admitted only for the purpose of impeachment and was not to be considered substantive evidence.

During his defense case, Evans sought to introduce the testimony of Eddie Hawkins, who had shared a jail cell with Tinsley after the shooting. Hawkins had made a pre-trial statement to police that Tinsley, while in jail, had admitted to shooting Jackson and had acknowledged that he had intended to accept a plea bargain until he learned that the Commonwealth could place him only in the getaway car and not in Walaikum's. However, during voir dire Hawkins repudiated his prior statement about Tinsley's confession and stated that he had fabricated the story of the confession¹ to gain more favorable treatment in his own pending case. As a result of Hawkins's voir dire testimony, the trial judge ruled that Evans's attorney could not question Hawkins about his conversation with Tinsley other than to ask whether they had discussed the pending charges against Tinsley. Evans then opted not to call Hawkins.

On November 8, 1996, Evans was convicted of first-degree murder on theories of deliberate premeditation and extreme atrocity and cruelty.² He also was found guilty of two charges of illegally possessing ammunition, one charge of illegally discharging a firearm within five hundred feet of a building, two charges of illegally possessing a firearm, two charges of assault and battery with a dangerous weapon, and various motor vehicle charges. The trial judge sentenced Evans to a mandatory term of life imprisonment on the murder conviction, and to concurrent terms of four to five years for the illegal possession of a firearm and assault and battery convictions. The other convictions were placed on file with Evans's consent.

Evans filed a timely notice of appeal and a motion for a new trial. The motion for a new trial was denied, and Evans appealed. His direct appeal to the SJC was consolidated with his appeal from the denial of his motion for a new trial. The SJC affirmed the convictions and the denial of the motion for a new trial. Evans, 786 N.E.2d at 380. Evans then filed a habeas petition in federal district court. The petition was denied. See Evans, 2005 WL 1638119, at *3. A certificate of appealability was granted as to two issues.

II.

Review of the district court's denial of habeas relief is de novo. Norton v. Spencer, 351 F.3d 1, 4 (1st Cir.2003). To state a federal habeas claim concerning a state criminal conviction, the petitioner must allege errors that violate the Constitution laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); see also 28 U.S.C. §§ 2241(c)(3), 2254(a). "[F]ederal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990).

Federal habeas review of the state court's decision is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214. Under AEDPA, habeas relief is unavailable on federal claims "adjudicated on the merits in State court proceedings" unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Under our circuit law, federal claims "raised before the state court but ... left unresolved" are reviewed de novo. Lynch v. Ficco, 438 F.3d 35, 44 (1st Cir.2006) (quoting Horton v. Allen, 370 F.3d 75, 80 (1st Cir.2004)) (internal quotation marks omitted); accord Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.2001) ("AEDPA imposes a requirement of deference to state court decisions, but we can hardly defer to the state court on an issue that the state court did not address.").

III.

A. Challenges Based on the Rule that a Prosecutor Cannot Impeach His Own Witness as a Pretext for Placing Inadmissible Evidence Before the Jury

We start with Evans's strongest claim. Evans's habeas petition makes three arguments related to Neal. Taking the fact that Neal's voir dire testimony showed that he would testify that he recalled essentially nothing of importance to the prosecutor, Evans argues (1) Neal himself should never have been allowed to testify, (2) Neal's grand jury testimony that he had seen Evans at Walaikum's should not have been admitted, and (3) Detective Dorch should not have been allowed to testify that Neal had told the police that he (Neal) had seen Evans and his brother shoot Jackson at Walaikum's. Evans asserts that his rights under the Confrontation Clause...