Filed: May 11, 2009
Latest Update: Feb. 21, 2020
Summary: court under 28 U.S.C. § 2254.essentially cumulative of Anna's prior testimony.2, In considering Smith's claim, the Massachusetts Appeals Court, applied the Massachusetts standard for ineffective assistance of, counsel laid out in Commonwealth v. Saferian, 366 Mass. 89, 96, (1974).
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1425
AUSTIN SMITH,
Petitioner, Appellant,
v.
MICHAEL THOMPSON,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella, Stahl, and Howard, Circuit Judges.
Kenneth G. Littman, by Appointment of the Court, for
appellant.
Argiro Kosmetatos, Assistant Attorney General, with whom
Martha Coakley, Attorney General, and James J. Arguin, Assistant
Attorney General were on brief for appellee.
May 11, 2009
STAHL, Circuit Judge. In 1997, Austin Smith was
convicted in Massachusetts Superior Court of six counts of sexual
assault on a minor and was sentenced to eighteen to twenty years in
prison. After exhausting his state court appeals, Smith brought
a habeas petition in federal court, under 28 U.S.C. § 2254,
alleging ineffective assistance of counsel at his state court
trial. The district court below denied the habeas petition,
adopting in full a magistrate judge's report and recommendation.
After careful review of the record and finding no error, we affirm.
The magistrate judge's detailed report includes a
thorough recitation of the facts of the case and we therefore do
not recount them in detail here. Essentially, Smith was convicted
of repeatedly sexually assaulting his live-in girlfriend's
daughter, Anna Garcia (a pseudonym), when she was five and six
years old. The assaults occurred between December 1993 and May
1995. Initially, Anna did not tell anyone of the sexual abuse. In
June 1995, Anna's aunt made a report of child abuse and neglect to
the Framingham, Massachusetts police department, alleging that Anna
and her younger brother (who was the biological son of Anna's
mother and Smith) were being physically abused by Smith. Following
up on the report, a Massachusetts Department of Social Services
investigator, James Nally, interviewed Anna and she revealed to
Nally for the first time that Smith had also sexually abused her.
After the interview and while Nally was still present, Anna then
-2-
told her mother of the sexual abuse. After the Nally interview was
over, Anna's mother took Anna to see a pediatrician, Dr. Nancy
Rosselot, and Anna described the sexual abuse to her as well. At
some later point, Anna also told her aunt and grandmother what
Smith had done to her.
At trial, the prosecution presented three key witnesses,
Anna,1 Nally, and Dr. Rosselot. Under Massachusetts law at the
time, Nally and Dr. Rosselot qualified as "fresh complaint
witnesses," meaning that they could testify to "an out-of-court
complaint seasonably made by the victim after [the] sexual assault"
and such testimony would be "admissible as part of the
prosecution's case-in-chief." Commonwealth v. Licata, 412 Mass.
654, 657 (1992). In addition, under the law as it stood at that
time, "[a] fresh complaint witness [could] testify to the details
of acts discussed during a fresh complaint; the acts about which
the witness testifie[d], however, must have been testified to by
the complainant." Commonwealth v. Flebotte,
417 Mass. 348, 351
(1994). The "fresh complaint doctrine" also put a significant
limitation on how such evidence could be used by the jury:
"Evidence of the complaint is admissible only to corroborate the
complainant's testimony; it cannot be presented to establish the
truth of the complaint itself."
Licata, 412 Mass. at 657.
1
At the time of trial, Anna was eight years old. Tragically,
she passed away two years after the trial, due to complications
from strep throat.
-3-
Smith did not present any witnesses at trial. His theory
of the case was that Anna had been coached by her mother, aunt, and
grandmother to fabricate the sexual abuse allegations because they
had an on-going feud with Smith. His trial counsel sought to
highlight inconsistencies within Anna's testimony, inconsistencies
between her testimony and what she previously told Nally and Dr.
Rosselot, and the lack of physical evidence supporting Anna's
claim.
Smith's ineffective assistance of counsel claim focuses
on four aspects of his counsel's conduct during the trial. First,
Smith argues that his trial counsel mishandled Anna's cross-
examination by asking her detailed questions about what she told
Nally and Dr. Rosselot about Smith's abuse. This line of
questioning, presumably intended to uncover inconsistencies,
elicited graphic testimony from Anna about the details of Smith's
abuse. Second, Smith argues that the cross-examination of Anna was
also constitutionally deficient because counsel asked Anna about
what she told her mother, aunt, and grandmother about Smith's
abuse. Smith says this was prejudicial error because Anna's
statements to her relatives about the abuse had not been presented
by the government in its case-in-chief, and therefore this line of
questioning introduced new and damning fresh complaint testimony
that otherwise would not have been before the jury. Third, Smith
argues that counsel's cross-examination of Nally and Dr. Rosselot
-4-
was deficient because he repeatedly asked them to describe what
Anna had told them about Smith's actions. This elicited further
repetitive statements describing in graphic detail Smith's abuse.
Fourth, Smith condemns his counsel's failure to request a limiting
instruction indicating that Anna's testimony about her out-of-court
statements to others could not be used as substantive evidence of
the truth of her allegations.
Smith first raised his ineffective assistance claim
before the Massachusetts Appeals Court, which affirmed his
conviction and denied his motion for a new trial. Thereafter, the
Massachusetts Supreme Judicial Court denied Smith's application for
leave to obtain further appellate review, leaving the Appeals Court
decision as the final state adjudication of the claim. The Appeals
Court concluded that Smith's trial counsel's performance "fell
measurably below that of the ordinary fallible lawyer," because
counsel "repeatedly elicit[ed] corroborative testimony from the
victim and other witnesses." Commonwealth v. Smith, No. 99-P-766,
2001 WL 695108,
51 Mass. App. Ct. 1116 (June 20, 2001) (unpublished
table decision). However, the court concluded that, on the record
as a whole, this deficient representation did not "'cast doubt on
the validity of the jury's verdict.'"
Id. (quoting Commonwealth v.
Peters,
429 Mass. 22, 33 (1999)).
Smith subsequently filed a habeas petition in federal
court under 28 U.S.C. § 2254. Agreeing with a magistrate judge's
-5-
report and recommendation, the district court denied the writ,
concluding that the Massachusetts Appeals Court did not
unreasonably apply the law governing claims of ineffective
assistance of counsel. The magistrate report, which was adopted in
full by the district court, explained its reasoning as follows:
Having read the entire trial record, it is just
as probable that the jury would have found Anna
credible based solely on the testimony which was
properly admitted. Put another way, there is not
a reasonable probability that the erroneously
admitted evidence would have altered the result.
The reason for this conclusion is that although
erroneously admitted, the evidence was
essentially cumulative. Anna testified that she
gave substantially the same recitation of facts
to all of the people to whom she reported the
abuse. The Court might feel differently if
within the evidence which was erroneously
admitted, there was some important evidence
necessary for conviction or which was
particularly weighty in favor of conviction which
was not otherwise before the jury in the form of
properly admitted evidence. But there is no such
evidence.
In other words, the court below denied the writ on prejudice
grounds, concluding that the state court did not unreasonably apply
the law regarding ineffective assistance given that there was no
reasonable probability that without the deficient representation
the jury would have found in Smith's favor.
On a petition for a writ of habeas corpus, we review the
district court's legal conclusions de novo. Teti v. Bender, 507
F.3d 50, 56 (1st Cir. 2007). We will only grant the writ as to a
-6-
claim adjudicated on the merits in state court if the adjudication
of the claim "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." 28 U.S.C. § 2254 (d)(1). Smith argues that the state
court unreasonably applied federal law regarding ineffective
assistance of counsel in finding that his counsel's errors were not
prejudicial. We have previously held that a finding of
"unreasonable application" requires more than "the mere fact that
there was some error or that the state decision was incorrect."
McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002). Indeed,
"'some increment of incorrectness beyond error is required.'"
Id.
(quoting Francis S. v. Stone,
221 F.3d 100, 111 (2d Cir. 2000)).
A claim of ineffective assistance of counsel requires a
showing that, "counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result." Strickland v.
Washington, 466 U.S. 668, 686 (1984). A successful claim under
Strickland requires two showings. First, a defendant must show
that counsel's performance was deficient, meaning that "counsel
made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment."
Id. at
687. Second, a defendant must show that the deficient performance
prejudiced the defense, which "requires showing that counsel's
-7-
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable." Id.
The Massachusetts Appeals Court correctly applied what
has been held to be the functional equivalent of the two-part
Strickland test to evaluate Smith's ineffective assistance claim.2
Because that court found that counsel's performance was indeed
constitutionally deficient, we need only examine the court's
evaluation of the second prong of Strickland, the prejudice
question. But, because this case reaches us on habeas review, we
do not evaluate whether the errors actually prejudiced Smith, but
only whether the Appeals Court reached an unreasonable conclusion
on the prejudice question. We hold that it did not, for
substantially the reasons highlighted in the magistrate's report.
First, during the cross-examination of Anna by Smith's
trial counsel, she was asked about her out-of-court statements to
Nally and Dr. Rosselot, as well as to her mother, aunt, and
grandmother. While this line of questioning certainly elicited
damning and graphic testimony regarding Smith's actions, it was
essentially cumulative of Anna's prior testimony. Anna had already
properly testified about her statements to Nally and Dr. Rosselot,
2
In considering Smith's claim, the Massachusetts Appeals Court
applied the Massachusetts standard for ineffective assistance of
counsel laid out in Commonwealth v. Saferian, 366 Mass. 89, 96
(1974). We have previously held that "'for habeas purposes,
Saferian is a functional equivalent of Strickland.'" Malone v.
Clark,
536 F.3d 54, 63 (1st Cir. 2008) (quoting Ouber v. Guarino,
293 F.3d 19, 32 (1st Cir. 2002)).
-8-
and the statements Anna recounted making to her relatives were not
substantially different from those she reported making to Nally and
Dr. Rosselot. It is true that trial counsel's questioning
permitted Anna to recount the graphic content of these statements
several times, and such repetition could, in some cases, be so
significant as to undermine a defendant's right to a fair trial.
See Dugas v. Coplan, 428 F.3d 317, 335 (1st Cir. 2005) ("Strickland
clearly allows the court to consider the cumulative effect of
counsel's errors in determining whether a defendant was
prejudiced.") (quoting Kubat v. Thieret, 867 F.2d 351, 370 (7th
Cir. 1989)). But here, the merely cumulative nature of the
erroneously admitted evidence combined with the strength of the
prosecution's properly admitted evidence -- the compelling
testimony from the young victim and two fresh complaint witnesses
-- leads us to conclude that the Appeals Court's determination of
'no prejudice' was not an unreasonable application of Strickland.
Second, as to counsel's cross-examination of Nally and
Dr. Rosselot regarding what Anna told them about Smith's actions,
we similarly conclude that such testimony was cumulative of the
witnesses' primary testimony about their interviews with Anna.
Again, the Appeals Court's 'no prejudice' determination was not
unreasonable.
Finally, as to counsel's failure to request a limiting
instruction regarding the fresh complaint testimony, the Appeals
-9-
Court's determination of 'no prejudice' was not unreasonable given
that the trial court instructed the jury on three occasions3 about
the nature of fresh complaint evidence and its limited
applicability.
Smith argues that the district court erroneously denied
the writ because it failed to recognize the "serious weaknesses" in
the prosecution's case. In other words, he argues that without the
improperly admitted evidence, the jury would likely have returned
a verdict of acquittal, meaning his counsel's errors did indeed
cause him prejudice. However, the supposed "weaknesses" that Smith
points out -- the lack of physical evidence of sexual abuse, and
some very minor inconsistencies in Anna's recounting of Smith's
abuse -- are not significant when weighed against the detailed and
generally consistent testimony of Anna, Nally, and Dr. Rosselot.
We agree with the court below that "there is no reasonable
probability the result would have been different" had the jury not
heard the improperly admitted evidence.
For the foregoing reasons we affirm the district court's
denial of the writ of habeas corpus.
3
The court gave these limiting instructions prior to the
testimony of Nally and Dr. Rosselot and during the court's final
instructions to the jury.
-10-
