Opinion
Civil Action No. 99-12104-MEL
January 24, 2001
Attorney's for Plaintiff Jerome P. Facher [COR LD NTC] William F. Lee [COR LD NTC] Wayne M. Kennard [COR LD NTC] Mark Daniel Selwyn [COR LD NTC] Hale Dorr Boston, MA
Elizabeth Olivier [COR LD NTC] Assistant General Counsel Palm Desert, CA
Christiee A. Maghone [COR LD NTC] Dimitry S. Herman [COR LD NTC] Beth E Turetsky [COR LD NTC] Wayne L. Stoner [COR LD NTC] Peter M. Dichiara [COR LD NTC] Hale and Dorr Boston, MA
Attorney's for Defendant James S. Dittmar [COR LD NTC] Hutchins, Wheeler Dittmar Boston, MA
Steven M. Bauer [COR LD NTC] John J. Cotter [COR LD NTC] Testa, Hurwitz Thibeault Boston, MA
Jeffrey R. Martin [COR LD NTC] Burns Levinson Boston, MA
Stephen Korn [COR LD NTC] Watertown, MA
Anthony J. Fitzpatrick [COR LD NTC] Michael R. Gottfried [COR LD NTC] Dennis D. Allegretti [COR LD NTC] Duane, Morris Hechscher LLP Boston, MA
Stanley L. Amberg [COR LD NTC] Orrick, Herrington Sutcliffe, New York, NY
MEMORANDUM AND DECISION
On October 28, 1993, Johnny Stephens was convicted by a Massachusetts Superior Court jury in Suffolk County of unarmed robbery, M.G.L. ch. 265, § 17, and assault and battery by means of a dangerous weapon (a shod foot), M.G.L. ch. 265, § 15A. On May 7, 1998, Stephens' convictions were affirmed by the Massachusetts Appeals Court inCommonwealth v. Stephens, 44 Mass. App. Ct. 940, 693 N.E.2d 717 (1998). The Massachusetts Supreme Judicial Court ("SJC") denied Stephens' application for further appellate review on October 23, 1998. Commonwealth v. Stephens, 428 Mass. 1106, 705 N.E.2d 277 (1998) (table) Stephens now files a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He claims that he was denied effective assistance of counsel and the right to confront the victim who acted as an adverse witness in violation of the Sixth Amendment. Because Stephens' conviction was secured through the denial of his Sixth Amendment right to effective assistance of counsel, his petition is granted.
I.
Eleanor Washington testified that on the evening of October 22, 1992, she was: approached by Stephens and his co-defendant, Kevin Walker, outside the Orchard Park housing project; that the two men accosted her and demanded money; Washington then handed the two men forty-two dollars; her compliance did not placate them; Stephens then placed a gun to her head and demanded more money; when she failed to produce any further funds, the men beat her with their boots and fists.
Both Stephens and Walker were charged with armed robbery and assault and battery by means of a dangerous weapon (their boots). On October 28, 1993, after a three-day trial, the defendants were found guilty ofunarmed robbery and assault and battery with a dangerous weapon. Stephens was sentenced to twenty-five to forty years in prison.
Stephens' claims for habeas relief are based on events that occurred at the trial. At trial, Washington was the sole witness to the crime. By all accounts, her credibility was the central issue. A number of grounds for impeachment were available to Stephens' defense. These grounds fell into four major categories: (1) inconsistencies in Washington's testimony; (2) evidence that Washington was drinking alcohol at the time of the alleged incident; (3) her prior convictions; and (4) a pending weapons charge against her.
While Stephens counsel tried to raise all of these grounds of impeachment, he was only successful in presenting the first two grounds to the jury. First, Stephens' counsel was successful in showing various inconsistencies in Washington's testimony. On direct examination, Washington testified that the attack took place outside the housing complex and that Stephens had placed a gun to her head. Stephens' counsel then brought out from the police officer who had filed the incident report and from the investigating officer that Washington had initially described the incident as having occurred in a hallway of the housing complex and had never mentioned a gun.
Second, Stephens' counsel effectively presented evidence that Washington was drinking alcohol at the time of the alleged incident. Stephens' counsel called the Emergency Medical Technician who attended to Washington on the night of the alleged attack as a witness. He testified that he had noticed an odor of alcohol on Washington's breath. In addition, in his cross-examination of Washington, Stephens' counsel got her to admit that "she might have had a wine cooler."
However, during his cross-examination of Washington, Stephens' counsel lost a page of his notes and neglected to question her about her prior convictions or the criminal charge which was pending against her. Significantly, the trial judge had already ruled on a motion in limine that Washington's prior convictions were admissible at trial. All that was left for Stephens' counsel to do was to question Washington about the convictions — a task he forgot to perform. Because of this significant error, Stephens was unable to point out to the jury that Washington, the sole witness against Stephens, had been convicted of: unlawful possession of a hypodermic needle; unlawful possession of cocaine; receiving stolen property; and uttering a forged instrument or that a charge for unlawful possession of a firearm was pending against her.
Stephens' counsel realized his mistake on the way home from court. The next day, explaining his mistake to the trial judge, Stephens' counsel moved to reopen his cross-examination of Washington. The trial judge denied the motion. Stephens' counsel then moved to introduce into evidence certified copies of Washington's convictions. The trial judge denied this request as well. Stephens was convicted of unarmed robbery and assault and battery by means of a dangerous weapon.
Stephens' petition to this Court makes two claims: first, that under the particular circumstances of his case, trial counsel's failure to question the alleged victim about her four prior convictions and a pending weapons charge rendered counsel's assistance ineffective in violation of the Sixth Amendment; second, that the trial judge's determination not to reopen Washington's cross-examination, compounded by the judge's decision not to allow certified copies of Washington's convictions into evidence, violated his right to Confrontation under the Sixth Amendment.
II.
Stephens' Ineffective Assistance of Counsel Claim The Massachusetts Appeals Court's Decision
In Commonwealth v. Stephens, 693 N.E.2d at 720, the Massachusetts Appeals Court explained its denial of Stephens' claim of ineffective assistance of counsel as follows:
Assuming, without deciding, that counsel's conduct fell measurably below that of an ordinary, fallible, lawyer, Stephens has nevertheless failed to demonstrate that better work would have made a difference in the jury's decision. See Commonwealth v. Satterfield, 373 Mass. 109, 115, 364 N.E.2d 1260 (1977). The "failure to impeach a witness does not [generally] prejudice the defendant [to such a degree as to] constitute ineffective assistance" of counsel. Commonwealth v. Bart B., 424 Mass. 911, 916, 679 N.E.2d 531 (1997), and cases cited. Moreover, here, Washington was thoroughly cross-examined using her prior inconsistent statements, and she admitted having consumed alcohol on the night of the alleged attack. Notwithstanding counsel's failure to use Washington's criminal history to cast doubt upon her credibility, his cross-examination was apparently quite effective, as evidenced by the jury's decision to acquit both defendants of armed robbery, in spite of Washington's claim that a gun was used in the attack.Was Stephens Denied Effective Assistance of Counsel?
Stephens argues that his trial counsel's failure to cross-examine Washington, the victim and sole witness against him, regarding her four prior convictions (including two crimes involving dishonesty) and a pending weapons charge rendered his counsel's assistance ineffective.
In Strickland v. Washington, 466 U.S. 668, 694 (1984), the Supreme Court ruled, that to establish ineffective assistance of counsel, a defendant must show: first, "that counsel's performance was deficient," that is, it "fell below an objective standard of reasonableness[;]" and second, that counsel's errors were "prejudicial" that is, "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-694.
i. Was Counsel's Assistance Deficient?
In Strickland, 466 U.S. at 688, the Supreme Court defined counsel deficiency as representation falling below an objective standard of reasonableness which is measured, in part, according to prevailing professional norms. "The type of breakdown in the adversarial process that implicates the Sixth Amendment is not limited to counsel's performance as a whole — specific errors and omissions may be the focus of a claim of ineffective assistance as well." United States v. Cronic, 466 U.S. 648, 657 (1984).
Stephens argues that his counsel's failure to cross-examine Washington regarding her prior convictions and a pending charge constituted such an error and omission. To support his position, he relies on evidence which he presented to the Massachusetts Appeals Court. This evidence included Stephens' trial counsel's affidavit explaining how his omission came about and concluding that his performance was deficient as well as the testimony of former Boston Municipal Court Judge, Margaret Burnham, that, under the circumstances, counsel's failure to cross-examine Washington regarding her prior convictions and a pending charge rendered Stephens' trial counsel's services deficient.
In reviewing Stephens' claim, the Massachusetts Appeals Court, "assum[ed], without deciding," that his trial counsel's services had been "deficient," Stephens, 693 N.E.2d at 720, and this assumption is not challenged by the Commonwealth.
I agree that Stephens' trial counsel's failure to cross-examine Washington regarding her prior criminal record and a pending charge, although induced involuntarily by a regrettable lapse of memory, caused his representation to fall below the "objective standard of reasonableness" based on "prevailing professional norms." Strickland, 466 U.S. at 688. Without question, the decisive issue at Stephens' trial was Washington's credibility and the evidence which most clearly called into question Washington's credibility was her criminal record and the fact that a new charge was pending against her. Trial counsel's failure to present this critical exculpatory evidence was deficient per se.
It is worth noting that in response to Stephens' counsel's request to re-open the cross-examination of Washington, the trial judge did allow counsel to re-call Washington as a witness. This would have allowed Stephens' counsel to question Washington about her pending weapons charge but not her prior convictions. Stephens' counsel declined to re-call Washington. In discussing Stephen's counsel's failure to cross-examine Washington regarding the pending charge, the respondent tries to deflect the focus from Stephens' counsel's initial inexplicable mistake in failing to adequately cross-examine Washington and to his decision not re-call Washington. counsel's extremely questionable decision not to re-call Washington has no bearing on whether his initial blunder of forgetting to adequately cross-examine Washington rendered his assistance defective. As explained in Strickland, "the reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances." Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (emphasis added) (citing Strickland, 466 U.S. at 689).
ii. Is There a Reasonable Probability That Counsel's Unprofessional Errors Made a Difference? 1. "Prejudice" Under Strickland
In Strickland, 466 U.S. at 694, the Supreme Court defined "prejudice" caused by ineffective assistance of counsel as meaning that: "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Thus, the operative question here is whether, if Stephens' counsel had presented the jury with evidence of Washington's four prior convictions and current weapons charge, there would have been a reasonable probability that the jury would have found a reasonable doubt that Stephens' was guilty.
I find that there is such a reasonable probability. My conclusion is based on the following propositions:
First, Washington's testimony, as the victim and sole witness to the alleged crime, was indisputably essential to the prosecution's case. If the jury did not believe Washington, the prosecution had no case.
Second, as Stephens' trial counsel demonstrated at trial, there were reasons, independent of Washington's run-ins with the law, to doubt her testimony. Washington's version of the mugging contained inconsistencies as to the location of the attack and whether Stephens had a gun. Washington also admitted to drinking alcohol on the night of the incident.
Third, when faced with these inconsistences and Washington's alcohol consumption, the jury not surprisingly indicated doubt as to Washington's current perception of the mugging, if not her credibility, as was demonstrated by the jury's acquittal of Stephens on charges of armed robbery (robbing Washington with a gun). In acquitting Stephens of this charge, the jury's conclusion must have been that Washington's recent recollection of Stephens using a gun during the mugging, which contradicted what she had told police officers earlier, was not dependable.
Fourth, the critical evidence that Stephens' counsel failed to present to the jury — that Washington had four prior convictions (two for crimes involving dishonesty) and a pending weapons charge — went to the heart of her credibility.
Under these circumstances, I find that it is not only reasonably probable, but indeed likely, that if the jury had been informed about Washington's criminally dishonest past and the pending charge, its uncertainty about Washington's testimony would have caused it to conclude that the Commonwealth had not proven any-of the charges against Stephens beyond a reasonable doubt.
2. Instructive Supreme Court Precedent
Two rulings of the Supreme Court support, if not compel, this finding of prejudice above. In Davis v. Alaska, 415 U.S. 308 (1974) (Burger, C.J.), the defendant was convicted of burglary and grand larceny. A "crucial" witness in the case who had identified the defendant had previously been convicted of juvenile delinquency for burglary and was, as a result, on probation. Davis, 415 U.S. at 310. At trial, the judge prohibited defense counsel from cross-examining the witness about his probationary status because it was for a juvenile offense. In reviewing his conviction, Davis argued that the judge's decision violated his rights under the Confrontation Clause of the Sixth Amendment. The Supreme Court agreed. Davis, 415 U.S. at 318. In so ruling, the Supreme Court commented that: "[s]erious damage to the strength of the State's case would have been a real possibility had petitioner been allowed to pursue this line of inquiry." 415 U.S. at 319.
Similarly, in Delaware v. Van Arsdall, 475 U.S. 673 (1986) (Rehnquist, J.), the defendant was convicted of murder. An important witness in the case had been the subject of a criminal charge which was dropped by the state shortly after he agreed to testify. At trial, the judge prohibited defense counsel from cross-examining the witness about the charge. In reviewing his conviction, Van Arsdall argued that the judge's decision violated his rights under the Confrontation Clause of the Sixth Amendment. The Supreme Court agreed and remanded the case for a determination of whether the violation was harmless error. Van Arsdall, 475 U.S. at 684. In so ruling, the Supreme Court commented on the effect that excluding evidence about the charge against the witness had: "a reasonable jury might have received a significantly different impression of [the witnesses'] credibility had [the defendant's] counsel been permitted to pursue his proposed line of cross-examination." Van Arsdall, 475 U.S. at 680.
Davis and Van Arsdall attest to the significant impeachment value of evidence showing that a witness is, or has been, the subject of a criminal charge. Standing alone, the Supreme Court has found that the failure to present this type of impeachment evidence to the jury is enough to raise serious doubts about whether a jury's judgment about a witness has been based on false assumptions as to a witness' credibility. These serious doubts rise to a level of near certainty where, as in the present case, the jury was deprived not only of evidence about a pending criminal charge, but was also left in the dark about the witness' four prior convictions (including two for crimes of dishonesty).
3. The Massachusetts Appeals Court's Rationale
Even though the facts in Stephens' case clearly demonstrate the importance of the omitted cross-examination testimony and the Supreme Court has emphasized the importance of similar impeachment testimony, the Massachusetts Appeals Court found no "prejudice" under the state law equivalent of Strickland. The decision is not supportable.
In its decision, the Appeals Court's rationale for finding no "prejudice" relied heavily, if not exclusively, on other more competent work performed by Stephens' counsel at trial:
here, Washington was thoroughly cross-examined using her prior inconsistent statements, and she admitted having consumed alcohol on the night of the alleged attack. Notwithstanding counsel's failure to use Washington's criminal history to cast doubt upon her credibility, his cross-examination was apparently quite effective, as evidenced by the jury's decision to acquit both defendants of armed robbery, in spite of Washington's claim that a gun was used in the attack.Stephens, 693 N.E.2d at 720.
The implicit reasoning in the decision is that because the jury only partially believed the alleged victim when faced with some of the problems in her story, there is no reasonable probability that harm was done. The Appeals Court's conclusion simply does not follow from its premise. The jury's half-hearted belief only makes it more (not less) likely that if they were to have been apprized of her record of criminal dishonesty and her pending weapons charge, the disclosure would have lead to their total disbelief of her story.
Do the Federal Courts Offer a Remedy?
With the enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Congress placed "a new constraint on the power of a Federal habeas court to grant a state prisoner's application for a writ of habeas corpus." Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523 (2000). Under AEDPA:
Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, (codified in scattered sections of 8, 18, 22, 28, 40, and 42 U.S.c.).
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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).
Stephens argues that the Massachusetts Appeals Court's decision "involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254 (d)(1).
In O'Brien v. DuBois, 145 F.3d 16 (1st Cir. 1998), the Court of Appeals has provided a refinement of the meaning of the "unreasonable application" clause in 28 U.S.C. § 2254(d)(1). The Court of Appeals held that a state court's application of Supreme Court precedent is not "unreasonable" unless it is "so offensive to existing precedent, so devoid of record support, or so arbitrary as to indicate that it is outside the universe of plausible, credible outcomes." O'Brien, 145 F.3d at 25.
Indisputably, AEDPA, as interpreted by Williams and O'Brien, has dramatically narrowed the class of petitions in which a state prisoner is entitled to Federal habeas relief. Nevertheless, this narrowing does not mean that in enacting AEDPA, Congress intended to eliminate Federal habeas relief in all cases. While a minute number of habeas petitions may fall outside the "universe of plausible outcomes," Stephens' petition is one of the few.
As described above, an examination of the record and Supreme Court precedent establishes that while the Massachusetts Appeals Court appliedStrickland's two-prong analysis, its conclusion that Stephens' "counsel's failure to cross-examine Washington did not raise a reasonable probability that a jury might find reasonable doubt, is unrealistic and implausible. The sole explanation of its decision given by the Massachusetts Appeals Court, that the jury did not completely believe Washington, and so, therefore, no prejudice to Stevens' had occurred, is simply unpersuasive in light of the counter argument that if the jury only half-believed Washington without hearing of her record or the pending charge there was more than a reasonable probability that they would not have believed her at all, if they had known about her criminal record and the pending charge. Accordingly, Stephens' petition is granted.
III. Stephens' Confrontation Clause Claim
Stephens contends that the trial judge's decision not to allow his counsel to reopen his cross-examination of Washington denied him his right to confront Washington in violation of the Sixth Amendment. Although the Appeals Court was presented with Stephens' Confrontation Clause claim, the Court dealt with the issue largely as a matter of state procedural law:
See Stephens v. Hall, No. 99-12104 (D.Mass. April 2, 2000) (finding exhaustion of Stephens' claims).
Stephens also maintains that the judge's refusal to allow counsel to reopen his cross-examination of Washington warrants reversal of his convictions. The decision whether to allow defense counsel to reopen a cross-examination is a matter within the sound discretion of the trial judge. Commonwealth v. Peterson, 7 Mass. App. Ct. 855, 856, 385 N.E.2d 531 (1979). While the better practice would have been to allow counsel to reopen his cross-examination, where, as here, counsel had the opportunity to use Washington's prior convictions and failed to do so, yet otherwise did an effective job of impeaching her credibility, there was no "duty on the part of the judge to [permit counsel to] recall [her] after she had left the witness stand and . . . departed the courtroom." Commonwealth v. Horton, 376 Mass. 380, 400, 380 N.E.2d 687 (1978).Stephens, 693 N.E.2d 720.
Stephens argues that Davis and United States v. Tracey, 675 F.2d 433 (1St Cir. 1982), demonstrate that the trial judge abused his discretion in "refus[ing] to re-open cross-examination to allow the jury to hear admissible, relevant and highly exculpatory evidence." Pl.'s Mem. 26. "Such a limit on defense counsel's cross-examination essentially excluded the most relevant and important evidence showing the complainant's lack of credibility[.]" Pl.'s Mem. 26-27.
Stephens' Confrontation Clause argument overlooks the fact that the trial judge did not limit defense counsel's ability to inquire about Washington's prior convictions or the pending charge during his initial cross-examination. Through a regrettable omission, Stephens' counsel inexcusably forgot to cross-examine Washington about her record or the pending charge. The trial judge merely refused to re-open cross-examination. While undoubtedly, as the Appeals Court held, the "better practice" would have been to allow Stephens' counsel to re-open his cross-examination of Washington (especially considering that counsel's services would be rendered ineffective if the judge did not), the Confrontation Clause did not require the judge to do so. Simply put, there is no right under the Confrontation Clause to re-open a cross-examination. No Supreme Court precedent, including Davis, establishes such a right.
IV.
Because Stephens' conviction was secured through the denial of his Sixth Amendment right to effective assistance of counsel, his petition is granted. Stephens' convictions for unarmed robbery and assault and battery by means of a dangerous weapon are vacated and the case is remanded to the Massachusetts Superior Court for a new trial.
It is so ordered.