Stephens v. Hall

• Decision Date: 28 June 2002
• Docket Number: No. 01-1304.,No. 01-1369.,01-1304.,01-1369.
• Citation: 294 F.3d 210
• Parties: Johnny STEPHENS, Petitioner, Appellee/Cross-Appellant, v. Timothy HALL, Respondent, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — First Circuit

294 F.3d 210

Johnny STEPHENS, Petitioner, Appellee/Cross-Appellant, v. Timothy HALL, Respondent, Appellant/Cross-Appellee.

No. 01-1304.

No. 01-1369.

United States Court of Appeals, First Circuit.

Heard January 11, 2002.

Decided June 28, 2002.

COPYRIGHT MATERIAL OMITTED

John Salsberg, with whom Michael R. Schneider and Salsberg & Schneider were on brief, for appellant/cross-appellee.

William J. Meade, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellee/cross-appellant.

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

LIPEZ, Circuit Judge.

Johnny Stephens was convicted by a Massachusetts jury of unarmed robbery and assault and battery with a dangerous weapon. On appeal, he argued that his right to effective assistance of counsel was violated when his trial counsel neglected to cross-examine the alleged victim as to her prior convictions and pending criminal charges, and that the trial court violated his rights under the Confrontation Clause when it refused to allow counsel to recall the victim for further cross-examination. The Massachusetts Appeals Court rejected both claims and affirmed Stephens's conviction. Commonwealth v. Stephens, 44 Mass.App.Ct. 940, 693 N.E.2d 717 (1998) (Stephens I). The Supreme Judicial Court denied further review.

Stephens then filed a petition for habeas corpus under 28 U.S.C. § 2254, again alleging violations of his rights to effective assistance of counsel and to confront adverse witnesses. The district court rejected the Confrontation Clause claim, but agreed that Stephens had received ineffective assistance of counsel. Stephens v. Hall, No. Civ. A. 99-12104-MEL, 2001 WL 92269 (D.Mass. Jan.24, 2001) (Stephens II). It concluded further that the Appeals Court's decision to the contrary was an unreasonable application of federal law, and ordered a new trial for Stephens. See 28 U.S.C. § 2254(d)(1). The Commonwealth appeals from that judgment. Stephens cross-appeals from the district court's rejection of his claim under the Confrontation Clause. We affirm the latter judgment, but reverse the district court's issuance of the writ on the ineffective assistance of counsel claim.

I. BACKGROUND

On October 22, 1992, at approximately 7:30 p.m., Eleanor Washington staggered into a police station in the Roxbury section of Boston bruised and bleeding. She claimed to have been robbed by two men, one of whom she referred to as "Johnny." She later told police that her assailants were named Johnny Stephens and Kevin Walker, and identified both men from police photographs. She also added that Stephens had threatened her with a gun during the robbery.

Stephens and Walker soon were arrested, and charged with armed robbery and assault and battery with a dangerous weapon (namely, their boots). They were tried together in October, 1993. Washington was the government's star witness, and her testimony was damning. She described the robbery and assault in detail, explaining how Stephens hit her until she fell to the ground, and then kicked her repeatedly. Washington identified Stephens and Walker in the courtroom, stating that she had "no doubt" that they were the men who attacked her.

On cross-examination, Stephens's counsel attempted to impeach Washington's credibility by pointing out inconsistencies between her trial testimony and the statements she made to the police immediately after the assault. That strategy was frustrated, however, by Washington's insistence that she lost consciousness during the beating, and could not remember anything prior to waking up in the hospital.¹

Defense counsel also had prepared a second avenue of attack. Washington had several prior convictions: a 1992 conviction for possession of cocaine and two 1987 convictions for uttering a forged instrument and receiving stolen property. In addition, at the time of the alleged robbery, charges were pending against her in a different county for possession of a hypodermic needle and possession of a firearm. Both cases were adjudicated early in 1993, less than a month after Washington's grand jury testimony in the case against Stephens. She was convicted of the charges for possession of a hypodermic needle, but acquitted on the firearms charge.

According to his notes made in anticipation of trial,² Stephens's attorney planned to question Washington extensively about her criminal history. His questions were designed to suggest that Washington had been treated leniently on the pending charges as a result of her allegations, and grand jury testimony, against Stephens. More generally, counsel hoped to show that Washington was savvy about the criminal justice system and therefore would have had no trouble fabricating or embellishing charges. Finally, Washington's prior convictions could have been used to assail her credibility as a witness.

Stephens's counsel never pursued that line of questioning, however, because he forgot to bring his notes regarding Washington's criminal history to the podium when he began cross-examination. Thus, when he reviewed his notes at the end of questioning, he believed (mistakenly) that he had not omitted anything. That evening, he remembered that he had meant to question Washington as to her prior convictions and pending charges.

On the next day of trial, Stephens's counsel sought permission to recall Washington so that he could reopen his cross-examination. The court, distrustful of counsel's claim that the omission was a simple mistake rather than a strategic ploy, denied the request.³ Nevertheless, the judge indicated that he would permit Stephens to call Washington as his own witness. If Stephens had done so, he arguably could have questioned Washington on pro-prosecution bias and thus gotten into evidence the pending charges on the theory that Washington wished to curry favor with the government. It is unlikely that he could have gotten into evidence the prior convictions, as one may not impeach one's own witness with such evidence. See Mass. Gen. Laws ch. 233, § 23 (forbidding impeachment of party's own witness with evidence of bad character); Commonwealth v. Arsenault, 361 Mass. 287, 280 N.E.2d 129, 137 (1972) (noting that prior convictions usually are used to prove bad character).

Defense counsel decided not to recall Washington as a witness in Stephens's case, and the jury never learned of her criminal history. However, counsel was able to impeach her credibility by other means. Through cross-examination of other government witnesses, Stephens's counsel exposed certain inconsistencies in Washington's story of the alleged robbery. For example, the jury learned that Washington had not mentioned a gun when she was interviewed at the police station on the night of the alleged robbery, nor when she first described the incident to the detective assigned to the case. Similarly, government witnesses conceded that Washington originally had indicated that the robbery and beating took place inside the hallway of a building, although she later placed the incident in an outside courtyard. Washington's description of her assailants also took on more detail in the days following the assault.

In his closing argument, Stephens's counsel argued that the inconsistencies in Washington's story were sufficient to create a reasonable doubt as to whether Washington was lying about the defendants' role in the beating, and about the robbery itself. Unpersuaded, the jurors returned a verdict finding both Stephens and Walker guilty of assault with a dangerous weapon. The jury also found both men guilty of unarmed robbery, acquitting them of the more serious charge of armed robbery. Stephens was sentenced to a term of 25 to 40 years for the unarmed robbery, and a concurrent term of nine and one-half years to ten years for the assault.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Stephens argues that counsel's failure to cross-examine Washington regarding her prior convictions and pending charges violated his right to effective assistance of counsel. Under the well-known test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), he must show, first, that counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms. See id. at 688-90, 104 S.Ct. 2052. Second, Stephens must demonstrate that the identified acts or omissions prejudiced his defense. That is, he must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

Massachusetts courts observe a similar standard when assessing claims under the state constitution. Specifically, the defendant must show that his attorney's conduct fell "measurably below that which might be expected from an ordinary, fallible lawyer," and that, as a result of counsel's errors, he was "likely deprived ... of an otherwise available, substantial ground of defen[s]e." Commonwealth v. Saferian, 366 Mass. 89, 315 N.E.2d 878, 883 (1974). We have concluded elsewhere that "[t]he standard for ineffective assistance under Massachusetts law appears functionally equivalent to the federal standard." Phoenix v. Matesanz, 189 F.3d 20, 27 n. 4 (1st Cir.1999); accord Ouber v. Guarino, 293 F.3d 19, 32 (1st Cir.2002) (observing that, "for habeas purposes, Saferian is the functional equivalent of Strickland"). Accordingly, in discussing Stephens's claim, we do not differentiate between the two standards.

A. The State Court's Decision

The Massachusetts Appeals Court affirmed Stephens's conviction on direct review, rejecting his claim of ineffective assistance of counsel. The court assumed, without deciding, that counsel's failure to cross-examine Washington as to her criminal history was objectively unreasonable under...