Pettiway v. Vose, 96-1482
| Decision Date | 11 September 1996 |
| Docket Number | No. 96-1482,96-1482 |
| Citation | 100 F.3d 198 |
| Parties | Ansley PETTIWAY, Plaintiff-Appellant, v. George A. VOSE, et al., Defendants-Appellees. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Janice M. Weisfeld, Assistant Public Defender, Providence, RI, for appellant.
Andrea J. Mendes, Special Assistant Attorney General, Providence, RI, with whom Jeffry B. Pine, Attorney General, was on brief for appellee.
Before TORRUELLA, C.J., COFFIN, Senior Circuit Judge, and TAURO, * District Judge.
Defendant-Appellant Ansley S. Pettiway, Jr. ("Pettiway") was tried and convicted of one count of first degree child molestation sexual assault, R.I. Gen. Laws § 11-37-8.1, and one count of second degree child molestation sexual assault, R.I. Gen. Laws § 11- 37-8.3. He was also acquitted of two counts of first degree and one count of second degree child molestation sexual assault. Pettiway unsuccessfully appealed his conviction to the Rhode Island Supreme Court, State v. Pettiway, 657 A.2d 161 (R.I.1995), and then filed for a writ of habeas corpus in the United States District Court for the District of Rhode Island, Pettiway v. Vose, 921 F.Supp. 61 (D.R.I.1996). When the district court denied the writ, Pettiway filed this appeal.
Our review of a harmless error determination on habeas corpus review is de novo. See Scarpa v. Dubois, 38 F.3d 1, 9 (1st Cir.1994) (); Levasseur v. Pepe, 70 F.3d 187, 193 (1st Cir.1995) (). Findings of fact by the state court, however, are entitled to great deference on federal habeas review. See 28 U.S.C. 2254(d); Tart v. Commonwealth of Massachusetts, 949 F.2d 490, 504 (1st Cir.1991).
The principal facts of this case are summarized in the opinion of the state Supreme Court on direct review, State v. Pettiway, 657 A.2d 161 (R.I.1995), and the opinion of the federal district court on collateral review, Pettiway v. Vose, 921 F.Supp. 61, 61-62 (D.R.I.1996), therefore, we present only a brief factual review. At trial, Pettiway was not permitted to enter into evidence a report of the Department of Children, Youth, and Families ("DCYF") which included allegations that the victim had been sexually abused by two other men whom her mother had brought home. These incidents were alleged to have taken place subsequent to the abuse by defendant. See State v. Pettiway, 657 A.2d at 163. In addition to the testimony of the victim, the prosecution relied on a written confession and the testimony of two police detectives who stated that Pettiway made an oral confession. Such other facts as may be pertinent will be discussed as they arise in this opinion.
On direct review, the Rhode Island Supreme Court held, and neither party disputes, that the trial court's ruling limiting Pettiway's ability to cross-examine the complaining witness violated Pettiway's Sixth Amendment right to confrontation. See State v. Pettiway, 657 A.2d at 163-64. The state Supreme Court also concluded, however, that the denial of Pettiway's right to confrontation was harmless error. Id. at 164.
We now review Pettiway's petition for habeas corpus. In order to prevail Pettiway must show that the trial-type constitutional error, considered in light of the record as a whole, had a " 'substantial and injurious effect or influence in determining the jury's verdict.' " Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). In Bowling v. Vose, 3 F.3d 559 (1st Cir.1993), this Court stated that Id. at 563. 1 Relevant factors to be considered in determining whether the jury was substantially swayed by the error include: "(1) the extent to which the error permeated the proceeding, (2) the centrality of the issue affected by the error to the case as actually tried, and (3) the relative strength of the properly admitted evidence of guilt." Levasseur, 70 F.3d at 193. We will follow the approach adopted in Levasseur, considering each of the factors in turn.
The constitutional error in this case was the limitation of Pettiway's right to cross-examine the victim. The victim was interviewed by a child protective investigator for the DCYF in September 1992, after the indictment of Pettiway, but prior to his trial. During that interview, she reported that she had been sexually abused by two other men that her mother had brought home. These incidents occurred subsequent to the alleged sexual abuse by Pettiway, and have been neither prosecuted nor proven false. See State v. Pettiway, 657 A.2d 161, 163 (R.I.1995).
Pettiway was not permitted to introduce the DCYF report at trial, nor was he permitted to cross-examine the victim about the allegations contained therein. Id. Defendant-appellant was, however, permitted to
confront Melissa, his accuser, and challenge her credibility. Indeed ... [the] trial justice gave defense counsel wide latitude to cross-examine Melissa fully in regard to the matters she testified to on direct-examination and ... to explore in depth Melissa's memory about the incidents of abuse and her reasons for not reporting the abuse sooner.
Pettiway claims that the excluded evidence would have enabled him to challenge the credibility of the victim by demonstrating a pattern of accusing her mother's boyfriends of sexual abuse.
By limiting the cross examination of the victim, Pettiway claims, the trial justice affected the defense's ability to challenge her credibility. We recognize that this case was, in part, a credibility contest between the victim and Pettiway. In this sense, the right to confront and attempt to impeach the victim was central to the defense. Our inquiry does not end with this determination, however. It is not enough to simply say that credibility was an important question, we must also consider the impact of the error on the credibility issue.
We are not persuaded that testimony to the effect that the victim claimed to have been abused by other men--an allegation that is very possibly truthful--would have substantially affected the jury's credibility assessment. Indeed, it is possible that such testimony would have emphasized to the jury the lack of parental supervision in the household and made them more inclined to believe the testimony of the victim. Furthermore, Pettiway has pointed to no place in the record, and has made no argument, to the effect that the allegations made by the victim were false. Nor did he give any indication that he intended to discredit those allegations in court. His current position appears to be that the mere mention of other allegations of abuse, without any evidence that those allegations were false, would sway the jury to the point of disregarding the entire testimony of the victim.
We also note that Pettiway was not foreclosed from challenging the victim's credibility, but was only prevented from pursuing questions pertinent to the DCYF report. It is simply too large an inferential leap for this Court to conclude that the admission of this evidence could have had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993).
The final factor in the Levasseur test requires us to examine the strength of the properly admitted evidence of guilt and determine whether Levasseur, 70 F.3d at 195. We conclude that it was. The evidence admitted at trial consisted of: (1) the testimony of the victim; (2) the testimony of two police officers that defendant made an oral confession; and (3) defendant's written confession. See Pettiway v. Vose, 921 F.Supp. at 63.
The victim testified to eleven incidents of sexual molestation. She detailed one incident during which Pettiway touched her breast and penetrated her vagina with his fingers, and she mentioned several other, more general allegations of molestation. Id. Both detectives testified that Pettiway admitted to sexually touching and digitally penetrating the victim. Id. In his written confession, Pettiway admitted to one act of touching the victim's breast and one act of penetrating her vagina, and stated that he touched her on three other occasions. The important point for present purposes is the fact that the confessions and the victim's testimony all relate the same incidents of touching in detail--one touching of the breast and one act of vaginal penetration. Beyond these two events, the testimony and the written confession are both vague.
The court submitted five counts of sexual abuse to the jury, and the jury returned guilty verdicts on two. Id. at 64. Pettiway points out that the jury's verdict mirrors the victim's testimony and contends that the jury relied solely on this testimony and disregarded the allegedly coerced confession. In light of this fact, the defendant's theory goes, an error limiting his ability to impeach the credibility of the victim cannot be harmless. Appellee responds that the jury verdict mirrors the written confession and claims that it is this evidence that the...
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