White v. Coplan

• Decision Date: 18 February 2005
• Docket Number: No. 04-1044.,04-1044.
• Citation: 399 F.3d 18
• Parties: Delvin WHITE, Petitioner, Appellant, v. Jane COPLAN, Warden, New Hampshire State Prison, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

399 F.3d 18

Delvin WHITE, Petitioner, Appellant, v. Jane COPLAN, Warden, New Hampshire State Prison, Respondent, Appellee.

No. 04-1044.

United States Court of Appeals, First Circuit.

Heard August 6, 2004.

Decided February 18, 2005.

David M. Rothstein, Deputy Chief Appellate Defender, Appellate Defender Program with whom Behzad Mirhashem, New Hampshire Public Defender, was on brief for petitioner.

Andrew R. Schulman and Getman, Stacey, Schulthess & Steere, P.A. on brief for New Hampshire Association of Criminal Defense Lawyers, Amicus Curiae.

Nicholas P. Cort, Assistant Attorney General, Criminal Justice Bureau, with whom Peter W. Heed, Attorney General, was on brief for respondent.

Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, and SARIS,^* District Judge.

BOUDIN, Chief Judge.

In 1997, following a jury trial in New Hampshire Superior Court, Delvin White was convicted of three counts of sexual assault against two young girls and sentenced to a term of 30 to 90 years' imprisonment. At trial he was forbidden to offer evidence that both girls had previously made such accusations against other persons, even though the state supreme court ultimately found that such prior accusations showed a reasonable probability of falsity. In this habeas appeal, White pursues his claim that this restriction violated his confrontation clause rights.

Some core facts are undisputed. On March 2, 1996, White visited his friend Wayne and Wayne's girlfriend Marguerite at Wayne's apartment. Also present were Wayne's two daughters, ages eight and twelve, and Marguerite's two sons, 14-year-old Danny and her one-year-old infant. After dinner the two men played cards for a while but White spent most of the evening playing and watching television with the children in the playroom, except for trips out with Wayne to buy beer and provisions. There was evidence that each of the men drank in excess of a six-pack during the visit.

At around 9:00 p.m., Marguerite put the older girl to bed; the younger continued to watch television with Danny and White in the playroom. At 9:30, the younger daughter went to Marguerite and Wayne in the living room and told them that White had put his hand in her nightshirt and placed his finger on her "private." Wayne immediately attacked White, who responded by shouting a denial. During the confrontation, the older girl came out of her bedroom crying hysterically; Marguerite took all of the children to an upstairs neighbor's apartment and left them there while she went and called the police.

The police arrived shortly thereafter and one officer spoke briefly with the younger girl about her alleged assault (the older one appeared too distraught to interview). At the suggestion of the police, a doctor at the local hospital examined both girls, who complained to him of sexual assault; but the examination provided no confirmation, nor did a police forensic examination of 14 items of clothing worn by White and the two girls on that evening. There was evidence that these negative findings did not necessarily disprove the assault claims.

Police officers interviewed the two girls separately the next day. The older girl claimed that in the living room White had rubbed her breast and later touched her vagina before going to the store and, in the playroom after his return, had twice attempted to touch her and at one point had inserted his finger in her vagina. The younger girl made similar claims as to the period after which her sister had gone to bed. Danny, who had been present in the playroom, later said that he had not seen any of these alleged events. Although the apartment was small and one room opened into another, neither Wayne or Marguerite claimed to have witnessed the touchings.

White was tried three times, the first two cases ending in mistrials. In the third trial, as in the first two, the only direct evidence of the assaults came from the two girls. The forensic evidence was negative. Danny's version of events was helpful to White, and Marguerite and Wayne, who also testified, had not seen the assaults. The doctor and various police officers who testified had no direct knowledge but only the girls' own version.

White did not testify; quite possibly he feared cross-examination on his own criminal record, which included at least two instances of sexual misconduct in the 1970s. He relied instead on Danny's testimony and on cross-examination of the two girls, designed to elicit inconsistencies within their stories and between them. He also suggested that the girls were alarmed by the extent of their father's drinking with White (Wayne had previously gone to prison for drinking-related offenses) and had sought their father's attention by making up the story of the assaults.

The prosecution agreed that its case was based on the theory that "these kids are telling the truth" and that the defense's case was based on the proposition that "[t]he kids are lying." Towards the very end of closing, the prosecutor asked rhetorically whether it would be "human nature to tell a horrific, huge lie against a stranger"; called the girls' truthfulness "the heart and soul of this case"; and suggested that they had "no motivation" and "no reason" to lie.

The third trial started with seven counts against White. Two were dismissed by the trial judge as inconsistent with the indictment and the jury deadlocked on two others — both for aggravated felonious assault based on the charges of digital penetration. The jury convicted, however, on two charges of ordinary felonious assault based on touchings of both of the girls' breasts and one charge of aggravated felonious assault for touching the outside of the older sister's vagina. The state's supreme court affirmed, considering and rejecting the constitutional claim now pursued in federal court.

The claim revolves around cross-examination and backup evidence that White sought to employ at trial. Specifically, White sought to cross-examine both girls about prior accusations of sexual assault that they had made against three individuals: a neighbor whom both girls had accused of sexually assaulting them in 1993, and who had been acquitted by a jury of the charges in 1994; a cousin whom the older girl had accused of sexually assaulting her, but against whom charges were never brought; and another individual named "Mac" whom the older daughter had accused of sexually assaulting her but who was never identified by the police.

White claimed that all of these prior allegations were false and pointed to evidence available to support that claim if the girls denied making prior false accusations. With regard to the two girls' charges against their neighbor, White proffered the neighbor's verdict of acquittal; testimony from two witnesses at the 1994 trial claiming that the older girl had admitted to her mother and her mother's then-boyfriend that the original accusations were a lie; and various law enforcement reports of the incident from the younger girl that described the alleged assault inconsistently over time.

White also proffered testimony from the 1994 trial suggesting that the older girl had admitted the accusations against her cousin were a lie, and supplemented this proffer with reports from a police investigation into the incident that was eventually terminated due to a finding of reasonable doubt and inconsistencies between the girl's claims and background facts collected by the police officer assigned to the case. The only evidence as to falsity of the accusations against "Mac" was law enforcement's failure to identify anyone fitting his description; how thorough an investigation occurred is unclear.

In his motion in limine, White pointed to the similarity between the younger girl's accusations against her former neighbor and those against White (both claims involved an older man who had, in her words, "put his finger inside her private" and "reached over with one hand and rubbed her private" while sitting next to her on a couch) and a somewhat weaker congruence between the older girl's accusations against "Mac" and hers against White (both touching the outside skin of her vagina). White sought both to cross-examine the girls about their prior accusations and supposed recantations and, if the girls stood by their prior accusations, to offer the extrinsic evidence described above.

White argued in a pretrial hearing that the evidence bore upon credibility and showed prior sexual knowledge.¹ The trial judge ultimately prohibited all inquiry into the prior allegations. He said that so far as the evidence bore directly on credibility, New Hampshire law required such prior accusations to be "demonstrably false," which he said was not the case here; that the past and present allegations were similar only in generic terms; and that sexual knowledge could be shown by other means (e.g., through the children's doctor) without the same prejudice and invasion of privacy.

In addition to requiring that the prior accusations be demonstrably false, the trial judge also relied upon a New Hampshire evidence rule, N.H. R. Evid. 608, which is the counterpart to Fed.R.Evid. 608. In both cases, the rule in pertinent part permits an attack on a witness' credibility by opinion or reputation evidence, with restrictions and "in the discretion of the court," by cross-examination of the witness directed to specific instances of conduct bearing on truthfulness — including instances of prior untruths. See 4 Weinstein's Federal Evidence § 608.22 (McLaughlin ed., 2d ed. rev.2004).

On White's state court appeal, White argued that the ban on the evidence violated his confrontation rights under both the federal and state constitutions. The state supreme court held that White had proven the falsity of the girls' earlier accusations to a "reasonable probability," but it concluded that New Hampshire law required a higher standard for prior accusations — demonstrable falsity — which the court...