Levasseur v. Pepe
U.S. Court of Appeals for the First Circuit
Levasseur v. Pepe
Opinion
USCA1 Opinion
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
_____________________
No. 95-1346
MARK LEVASSEUR,
Appellant,
v.
PETER PEPE,
Appellee.
_____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge] ___________________
_____________________
Before
Stahl, Circuit Judge, _____________
Campbell, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
_____________________
ERRATA SHEET ERRATA SHEET
The opinion issued on November 22, 1995, should be amended
as follows:
On Page 3, lines 1-2, delete the victim's
name and replace with "the victim (`Jane
Doe')".
On page 14, at the last two lines of the indented
quotation, replace the victim's name with "[Jane Doe]"
On the following locations, replace the
victim's last name with "Doe" or "Doe's":
Page 3, lines 3, 4, 5, 7, 11, 12, 13, 15 (2
times), 16, 18 and 21
Page 4, lines 2, 4, 11 and 24
Page 5, lines 1, 4, 6, 10, 17, 19 and 21
Page 6, lines 1 and 2
Page 16, lines 6, 7, 8, 13, 15 and 19
Page 17, lines 1, 4, 10, 14, 17 and 19
Page 18, lines 6 and 13
Page 19, line 15 and line 2 of footnote 6
Page 20, lines 1, 3, 9, 14 and 21
Page 21, lines 2, 8, 10, 15 and line 1 of
footnote 8
Page 22, line 4
Page 25, line 8 of footnote 9
Page 26, lines 10, 12, 14, 17 and line 4 of
footnote 10
Page 27, line 23
Page 29, line 23
Page 30, line 6
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
_____________________
No. 95-1346
MARK LEVASSEUR,
Appellant,
v.
PETER PEPE,
Appellee.
_____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge] ___________________
_____________________
Before
Stahl, Circuit Judge, _____________
Campbell, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
_____________________
Thomas J. Gleason for appellant. _________________
William J. Duensing, Assistant Attorney General, with whom ___________________
Scott Harshbarger, Attorney General of the Commonwealth of _________________
Massachusetts, was on brief for appellee.
_____________________
November 22, 1995
_____________________
STAHL, Circuit Judge. In January of 1990, STAHL, Circuit Judge. _____________
petitioner Mark Levasseur was convicted in a Massachusetts
state court of rape, indecent assault and battery, and
assault and battery. After exhausting his state court
remedies, Levasseur sought a writ of habeas corpus in the
United States District Court for the District of
Massachusetts, pursuant to 28 U.S.C. 2254, claiming that
his state convictions were obtained in violation of the
United States Constitution. Specifically, Levasseur asserted
that an improper admission of hearsay testimony violated his
Sixth Amendment right to confrontation, an unduly suggestive
identification procedure violated his Fourteenth Amendment
right to due process of law, and his trial counsel's
deficient performance deprived him of his Sixth Amendment
right to the effective assistance of counsel. The district
court denied the habeas application, and this appeal
followed. For the reasons discussed below, we affirm.
I. __
BACKGROUND __________
A. Pretrial Events1 ___________________
At some time between the late evening and early
morning hours of June 30 and July 1, 1988, a man driving a
____________________
1. For a more comprehensive statement of the facts, see
Commonwealth v. Levasseur, 592 N.E.2d 1350, 1351-53 (Mass. ____________ _________
App. Ct.), review denied, 600 N.E.2d 171 (Mass. 1992), cert. ______ ______ _____
denied, 113 S. Ct. 978 (1993). ______
-2- 2
big, dark-colored, "4 x 4" pickup truck approached the victim
('Jane Doe') as she was walking on the sidewalk and asked her
if she wanted a ride. Undeterred by Doe's initial rejection,
the driver returned and Doe relented. Instead of dropping
Doe at her destination, the driver took her to a deserted
area behind a factory and raped her on the truck seat. Her
attacker, still restraining Doe, drove away from the scene
and then pushed her out of the truck.
Ronald Ralls, driving behind the truck, saw Doe
fall from the truck and stopped to render aid. Ralls drove
Doe to his home and notified the police. Officer Mendes
arrived, but Doe rebuffed his attempts to approach her. The
officer detected the smell of alcohol on Doe's breath.
Emergency paramedics transported Doe to the hospital. Doe's
continued refusal to let anyone touch her prevented the
hospital staff from administering a "rape kit." Eventually,
Doe, in the presence of Officer Mendes, related the incident
in general terms to a female hospital administrator.
Five days later at the police station, Doe further
recounted the incident to Inspector Boutselis. She described
her assailant's pickup truck as a big, dark "4 x 4" sitting
high off the ground and her attacker as a white male with a
medium-type build, thin face, high cheekbones, dark hair,
dark eyelashes, and a small moustache. Boutselis showed Doe
over six thousand photographs of white males. A 1983
-3- 3
photograph of Levasseur was among the six thousand. Although
Doe said several photographs, including Levasseur's, looked
similar to her assailant, she was unable to make an
identification.
On July 13, 1988, because of a new lead, Inspectors
Boutselis and Guilfoyle began to focus on Levasseur. On
their way to Levasseur's residence in an unmarked car,
Boutselis and Guilfoyle noticed a pickup truck fitting Doe's
description. Boutselis and Guilfoyle observed the truck pull
over to the side of the road, saw the driver beckon to a
young blond-haired girl walking on the sidewalk, and heard
him say "Come on." After the girl continued walking and the
truck drove on, Guilfoyle questioned the girl, who said that
the man in the truck had offered her a ride but she did not
know him. Learning from the police dispatcher that the truck
belonged to Levasseur, Boutselis and Guilfoyle stopped
Levasseur and asked about the girl. Levasseur told them that
she was his cousin and he had offered her a ride, but he did
not volunteer her name. Levasseur agreed to go to the police
station, where Boutselis and Guilfoyle questioned and
photographed him.
The next day, Inspector Boutselis showed Doe a
group of sixty photographs including Levasseur's photograph
from the day before. Doe stated that Levasseur's recent
photograph looked like her assailant and asked Boutselis for
-4- 4
more photographs of Levasseur. Upon examining Levasseur's
1983 photograph, Doe said that it looked more like her
assailant than the recent photograph. Given the seriousness
of the charges, Doe refused to make a positive identification
of Levasseur based solely on the photographs and requested to
see him in person.
Using an unmarked car, Inspector Boutselis and Doe
began field identifications.2 Over the next five months,
they made nine excursions lasting two to three hours each to
locations near Levasseur's place of work and home. On five
occasions, they sat outside the Textron plant in Wilmington
thinking that Levasseur was employed there. Levasseur, it
was later discovered, worked at Digital Equipment
Corporation, not Textron. On the remaining four occasions,
Boutselis and Doe sat at an intersection in North Chelmsford
one-half mile from Levasseur's home. Doe never positively
identified anyone on the first eight excursions. During the
ninth trip, on December 16, 1988, however, Doe saw
Levasseur's truck approach and exclaimed, "Wow, this looks
like it." As the truck came within six feet of Doe and
Levasseur looked in her direction, Doe screamed, "It's him,
it's him. Get me . . . out of here right now."
____________________
2. Because Levasseur was no longer cooperating with the
investigation and probable cause to arrest him did not exist,
Inspector Boutselis could not require Levasseur to
participate in a line-up.
-5- 5
B. The Trial _____________
On January 24, 1990, Levasseur was brought to trial
on charges of rape, indecent assault and battery, and assault
and battery. The prosecution called six witnesses in its
direct case and one witness on rebuttal, with Levasseur
calling himself, his wife, and his mother-in-law as his
defense witnesses.
In his rebuttal case, the district attorney called
Inspector Guilfoyle to testify about the July 13, 1988,
incident with the blond-haired girl (we use the language used
at trial and refer to "the blond-girl incident"). In
recounting his conversation with the blond girl, Inspector
Guilfoyle uttered the following hearsay testimony:
Q. Sir, . . . what was the nature of the
conversation with her [the blond girl]?
A. We pulled up; we were in an unmarked
vehicle. We identified ourselves to the
young lady. We asked her if she knew the
gentleman in the truck; she said no. We ___________
asked her if she could tell us what he
wanted and she said he offered her a _________________________
ride. ____
(emphasis added).
After a three-day trial, the jury found Levasseur
guilty of rape, indecent assault and battery, and assault and
battery. Levasseur was sentenced to concurrent state prison
terms of ten to fifteen years and four to five years.
C. Post-Conviction Proceedings _______________________________
-6- 6
After the jury's verdict, Levasseur filed a motion
for a new trial which the trial court denied. The
Massachusetts Appeals Court affirmed the convictions, and the
Supreme Judicial Court of the Commonwealth of Massachusetts
denied Levasseur's petition to obtain further appellate
review. The United States Supreme Court denied Levasseur's
petition for a writ of certiorari.
Having exhausted his state remedies, Levasseur
filed a petition for habeas corpus in the United States
District Court for the District of Massachusetts. The
district court denied the petition for the following reasons.
Levasseur's trial counsel had procedurally defaulted on the
claim of unduly suggestive identification by his failure to
object. The court held that Levasseur could not excuse this
procedural default because he could not show cause for that
failure via a claim of ineffective assistance of counsel.
Counsel's failure to object did not constitute deficient
performance because the identification method was not unduly
suggestive. With respect to the hearsay claim, the court
held that Levasseur's Confrontation Clause rights were
violated, but the error was harmless. Finally, according to
the district court, Levasseur's remaining ineffective-
assistance-of-counsel claims failed because trial counsel's
overall performance was not deficient and Levasseur suffered
no prejudice.
-7- 7
II. ___
DISCUSSION __________
On appeal, Levasseur makes the following four
arguments: (1) he did not procedurally default on his Due
Process and Confrontation Clause claims, (2) the violation of
his Sixth Amendment right to confrontation was not harmless
error, (3) the pre-trial identification procedure was unduly
suggestive and violated his Fourteenth Amendment right to due
process of law, and (4) he was denied effective assistance of
counsel. We discuss each argument in turn.
A. Procedural Default ______________________
Levasseur asserts that the district court erred in
holding that he procedurally defaulted on his Due Process and
Confrontation Clause claims. Levasseur admits that his trial
counsel did not object to the pre-trial identification
procedure and the hearsay statement as each was introduced
and acknowledges that, to consider such claims on appeal,
Massachusetts requires contemporaneous objection to their
admission as evidence at trial, Mass. R. Crim. P. 24(b). He
contends, however, that his filing a motion for new trial and
the trial court's consideration of the issues presented acted
to resurrect and preserve these claims for review. We
disagree.
Under Massachusetts case law, issues previously
lost for appeal may be resurrected and preserved for
-8- 8
appellate review if a trial judge exercises his discretion
and considers them in ruling on a motion for a new trial.
See Commonwealth v. Harrington, 399 N.E.2d 475, 478 (Mass. ___ ____________ __________
1980); Commonwealth v. Gagne, 326 N.E.2d 907, 911 (Mass. ____________ _____
1975); Commonwealth v. Buckley, 458 N.E.2d 781, 783 (Mass. ____________ _______
App. Ct.), review denied, 461 N.E.2d 1219 (Mass. 1984). ______ ______
Whether the trial court considered Levasseur's Due Process
and Confrontation Clause claims and thereby waived his
procedural default is a legal question subject to our plenary
review. See Burks v. Dubois, 55 F.3d 712, 716 (1st Cir. ___ _____ ______
1995) (reviewing de novo question of whether state court's __ ____
limited review of petitioner's claim for miscarriage of
justice effected a waiver); Puleio v. Vose, 830 F.2d 1197, ______ ____
1200 (1st Cir. 1987), cert. denied, 485 U.S. 990 (1988) _____ ______
(same).
In ruling on Levasseur's motion for new trial, the
trial judge did not consider Levasseur's Due Process and
Confrontation Clause claims individually but rather only as
part and parcel of Levasseur's ineffective-assistance-of-
counsel claim. The court concluded that the attorney's
failure to object to the identification process and the
hearsay testimony was not ineffective assistance of counsel.
Because the trial judge never considered the Due Process and
Confrontation Clause claims severally, it did not resurrect
these procedurally defaulted claims, and we consider them on
-9- 9
appeal only as they constitute part of Levasseur's
ineffective-assistance-of-counsel claim.
Levasseur invites this court to rule that an
appellant claiming ineffective assistance of counsel in a
motion for a new trial before a state trial court preserves
for habeas corpus review not only the ineffective-assistance-
of-counsel claim but the substantive claims subsumed within
the ineffective-assistance-of-counsel claim. In this case
and typically, however, the substantive claims underlying the
ineffective-assistance-of-counsel claim are constitutional
claims that were procedurally defaulted due to the
ineffective performance of counsel. In Coleman v. Thompson, _______ ________
501 U.S. 722, 750 (1991), the Supreme Court ruled that
federal habeas review of procedurally defaulted claims is
barred unless the petitioner demonstrates (1) cause for the
default and "actual prejudice as a result of the alleged
violation of federal law" or (2) that failure to consider the
claims will result in "a fundamental miscarriage of justice."
By proposing that procedurally defaulted claims should also
be preserved if they form part of an ineffective-assistance-
of-counsel claim, Levasseur suggests that we create a third
way to excuse procedural default, where Coleman purposefully _______
provides only two. Recognizing Levasseur's suggestion as an
attempt to make an end run around Coleman, we refuse his _______
invitation.
-10- 10
Having determined that the trial court did not
resurrect Levasseur's otherwise procedurally defaulted Due
Process and Confrontation Clause claims, we turn our
attention to determining whether we nonetheless may review
the procedurally defaulted claims on habeas. We begin by
considering the Confrontation Clause claim.
B. Inadmissible Hearsay ________________________
Where a petitioner, like Levasseur, has
procedurally defaulted on his claim, we reach the merits on
habeas corpus review only if the default can be excused by
establishing either cause for the default and actual
prejudice resulting therefrom or that failure to consider the
claim will result in a "substantial miscarriage of justice."
Coleman, 501 U.S. at 750. Should the petitioner surmount _______
this hurdle and excuse his default, we may then reach the
merits of his claim and determine whether a constitutional
error has occurred and, if so, whether the error was harmless.3
____________________
3. We note that the Fourth and Eighth Circuits have held
that once cause and prejudice is found sufficient to excuse
the procedural default and an error is found on the merits,
no additional harmless-error review is necessary. Hill v. ____
Lockhart, 28 F.3d 832, 839 (8th Cir. 1994)("[I]t is ________
unnecessary to add a separate layer of harmless-error
analysis to an evaluation of whether a petitioner in a habeas
case has presented a constitutionally significant claim for
ineffective assistance of counsel."), cert. denied, 115 S. _____ ______
Ct. 778 (1995); Smith v. Dixon, 14 F.3d 956, 974, 976 (4th _____ _____
Cir.) (en banc), cert. denied, 115 S. Ct. 129 (1994). _____ ______
Because we review the Confrontation Clause issue as the
district court decided it, assuming arguendo that Levasseur ________
excused his procedural default, we need not decide whether we
agree with our sister circuits.
-11- 11
In considering Levasseur's procedurally defaulted
Confrontation Clause claim, the district court assumed
arguendo that Levasseur had excused his default and limited ________
its analysis to the merits of Levasseur's Confrontation
Clause claim. Specifically, the district court held that
although Inspector Guilfoyle's testimony about the blond
girl's statements was inadmissible hearsay that violated
Levasseur's Sixth Amendment right to confront his accusers,
it was harmless error. Similarly we limit our analysis to
the determination of harmless error and affirm for the
reasons that follow.
We first set forth the legal framework. The
standard here for determining whether habeas relief must be
granted because of unconstitutional trial error is the
Brecht/Kotteakos standard of harmless error. Under that ______ _________
standard, an unconstitutional trial error is harmless unless
the court finds with fair assurance that the 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, 113 S. Ct. 1710, ______ __________
1721-22 (1993) (quoting Kotteakos v. United States, 328 U.S. _________ _____________
750, 776 (1946)); see Kotteakos, 328 U.S. at 765 (holding ___ _________
that requisite degree of certainty is "fair assurance").
Assessments of harmless error are necessarily context-
specific. Kotteakos, 328 U.S. at 762. The following _________
-12- 12
factors, however, are relevant to our determination of
whether the jury was substantially swayed by the tainted
hearsay evidence: (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. See Brecht, 113 S. Ct. at 1722 (considering ___ ______
infrequency of state's references to constitutional error and
strength of evidence of guilt as factors relevant to
assessing whether error "substantially influence[d]" jury);
Shaw v. Collins, 5 F.3d 128, 132-33 (5th Cir. 1993) ____ _______
(considering centrality of the issue affected by the error to
the case as tried and finding that Confrontation Clause
violation was not harmless because tainted testimony "was the
linchpin in the State's case"). After reciting the standard
of review, we consider each factor in turn.
Because a harmless-error determination on habeas
corpus review is a mixed question of law and fact, we examine
this issue de novo. Brecht, 113 S. Ct. at 1724 (Stevens, J., __ ____ ______
concurring); Scarpa v. Dubois, 38 F.3d 1, 9 (1st Cir. ______ ______
1994)(holding that "[i]n federal courts, mixed questions of
law and fact arising in section 2254 cases are ordinarily
subject to de novo review"), cert. denied, 115 S. Ct. 940 __ ____ ____ ______
(1995).
1. Prevalence of the error ___________________________
-13- 13
The constitutional error in this case consists of
two discrete statements uttered at the end of the trial.
During his rebuttal case, the district attorney violated
Levasseur's Sixth Amendment right to confront his accusers by
eliciting from Inspector Guilfoyle the hearsay testimony
about the blond girl's statements to him. Specifically,
Guilfoyle testified that the blond girl said Levasseur had
offered her a ride and that she had said no. In his closing
argument, the district attorney paraphrased the offending
statement:
One can look at this case, and if one
adds up the facts that were proven beyond
a reasonable doubt and then add any
inferences that can be drawn from the
account with the young female on the
bridge on July 13th, with almost the same ____________________
words that were spoken to [Jane Doe]: Do _________________________________________
you want a ride? ________________
(emphasis added).
Viewing these two constitutionally erroneous
statements in the context of the trial as a whole, we find
that they did not permeate the trial proceedings. During his
opening argument and throughout the presentation of his
direct case, the district attorney carefully avoided any
hearsay testimony about the blond girl's statements. The
district attorney purposefully excluded Guilfoyle--the only
witness with personal knowledge of the blond girl's
statements--from the six witnesses who testified as part of
his direct case. Only after Levasseur took the stand and
-14- 14
stated that the blond girl was his cousin did the district
attorney offer Guilfoyle's hearsay evidence on rebuttal and
paraphrase it in his closing argument. At least on the facts
of this case, an error occurring in the rebuttal case and
repeated once in closing argument--comprising three lines in
a 513-page transcript--is not prevalent in the context of a
three-day trial in which the opening argument and direct case
(the first two days) are free of error. See Brecht, 113 S. ___ ______
Ct. at 1722 (finding that error comprising less than two
pages of a 900-page trial transcript was not prevalent).4
____________________
4. Levasseur would have us consider every reference to the
blond-girl incident in determining prevalence. Although such
evidence is relevant to the next factor we consider,
determining the centrality of the issue affected by the
error, it is not relevant here. To determine prevalence, we
need only ask how often the error occurred. Because the
other references to the blond-girl incident in the record
were free of constitutional error, we do not consider them in
assessing the error's prevalence. For instance, when
Inspector Boutselis testified in the prosecution's direct
case about the blond-girl incident, he limited himself to
what he saw and heard transpire between Levasseur and the
blond girl. He stated that he saw Levasseur beckon to the
blond girl and heard Levasseur call, "Come on." Because this
evidence is free of constitutional error and clearly
admissible, we do not consider it in assessing the error's
prevalence.
-15- 15
2. Centrality of the issue affected by the error _________________________________________________
The issue primarily affected by the erroneous
admission of Guilfoyle's hearsay statement was the
prosecution's modus operandi theory: because Levasseur _____ ________
attempted to pick up the blond girl two weeks after Doe's
rape using the same modus operandi he had used to lure Doe _____ ________
into his truck, Levasseur must have raped Doe.5 Had modus _____
operandi been the prosecution's central theory to support ________
Levasseur's conviction, the constitutional error in admitting
the hearsay would likely have been fatal to the prosecution's
case and necessarily harmful. The prosecution, however, only
used the modus operandi evidence to corroborate Doe's _____ ________
otherwise strong identification of Levasseur. After
considering the trial in its entirety, we find that Doe's
clear identification of Levasseur was the linchpin in the
prosecution's case, and the modus operandi evidence was _____ ________
merely collateral thereto.
In his opening argument, the district attorney
concentrated exclusively on Doe's identification of
Levasseur; he did not mention the blond-girl incident. The
____________________
5. Levasseur's trial counsel failed to object under
Massachusetts' rules of evidence to the introduction of the
blond-girl incident as a prior bad act offered to show
identity (modus operandi). Because 28 U.S.C. 2254 limits _____ ________
habeas corpus review of a state prisoner's conviction to
violations "of the Constitution or laws or treaties of the
United States," we consider this failure only as it
implicates the Sixth Amendment right to effective assistance
of counsel.
-16- 16
bulk of the prosecution's direct case concerned Doe's
identification of Levasseur, to which four of the six
prosecution witnesses testified. The testimony of the
prosecution's first witness, Doe, centered on her ability to
view her assailant and his truck, the effect of her
consumption of two drinks on her perception, her description
of her assailant and his truck, and her identification of
Levasseur in photo arrays and in the field. Officer Mendes,
the prosecution's second witness, testified to Doe's
condition closely following the rape, concluding that she was
not intoxicated, and to her initial description of the
incident. Mr. Ralls, the third witness, gave an eyewitness
description of the truck from which he saw Doe thrown. He
also described Doe's condition immediately following the
rape, detecting no odor of alcohol. The sixth and final
witness, Inspector Boutselis, recalled Doe's detailed
description of her assailant, the truck, and the incident,
recounted five days after the rape. He also recalled Doe's
reactions to the photo arrays and the field identifications.
He then provided the only account of the blond-girl incident
in the prosecution's direct case. As previously stated, this
account was limited to what Boutselis saw and heard transpire
between Levasseur and the blond girl.
In response to Levasseur's assertion that the blond
girl was his cousin, the district attorney presented
-17- 17
additional evidence illustrating modus operandi in his _____ ________
rebuttal case. Finally, in his closing argument, the
district attorney referred to the blond-girl incident only
twice, focusing his comments instead on Doe's identification
of Levasseur.
The district attorney's tactical decision not to
introduce the blond-girl incident in his opening argument and
to wait until the last witness in his direct case to do so
reveals the diminished importance the prosecution placed on
the issue of modus operandi. Conversely, the primacy of _____ ________
Doe's identification of Levasseur is evident throughout the
trial, being the district attorney's focus in both his
opening and closing arguments and his direct case.
3. Relative strength of the properly admitted ______________________________________________
evidence ________
The final factor tests the strength of the properly
admitted evidence of guilt in deciding whether the error
substantially affected the jury. Was the properly admitted
evidence so strong that it overwhelmed the impact of the
erroneously admitted evidence? Or was the case very close,
with evidence evenly balanced on both sides, enhancing the
effect of the error on the jury's verdict? In answering
these questions, we heed Brecht's warning not to assess the ______
potential strength of the properly admitted evidence if
offered at a new trial but rather to assess the strength of
-18- 18
the properly admitted evidence as that evidence actually was
presented at the trial. Brecht, 113 S. Ct. at 1724 (Stevens, ______
J., concurring) ("The habeas court cannot ask only whether it
thinks the petitioner would have been convicted even if the
constitutional error had not taken place. Kotteakos is full _________
of warnings to avoid that result."). We find that this
factor also militates against Levasseur and that the
prosecution's properly admitted evidence was strong enough to
minimize the impact of the erroneously admitted hearsay
testimony.
The prosecution's evidence of Levasseur's guilt,
stripped of the erroneously admitted evidence, reduces to two
broad areas of incrimination: (1) Doe's identification of
Levasseur and (2) Levasseur's encounter with the blond girl.6
We will consider the strength of each area of incriminating
evidence separately, then cumulatively, and finally we will
compare the prosecution's evidence of guilt to Levasseur's
defense.
____________________
6. No scientific evidence of Levasseur's guilt, such as a
semen specimen, exists. Doe's refusal to let anyone touch
her following the rape prevented the hospital staff from
administering a "rape kit."
-19- 19
a. Doe's identification of Levasseur _____________________________________
As the linchpin in the prosecution's case, Doe's
identification of Levasseur is strong inculpatory evidence.
It readily satisfies all but one of the traditional indicia
of reliability that the Due Process Clause requires of
identifications. See Manson v. Brathwaite, 432 U.S. 98, 114 ___ ______ __________
(1977) (setting out the factors for assessing reliability of
identification testimony). Doe had adequate opportunity to
view her assailant throughout the incident; her degree of
attention during a traumatic experience is presumed to have
been acute, despite her having consumed two drinks earlier
that evening; her prior description of her assailant
accurately fits Levasseur; when she saw Levasseur in his
truck, Doe demonstrated a high degree of certainty in
identifying him as the perpetrator (and this comes from a
woman who appreciated the gravity of the charges as
demonstrated by her refusal to identify Levasseur by his
photo alone and request to see him in person); and she never
positively identified anyone other than Levasseur throughout
the six-month investigation. Although the six-month lapse
between the rape and Doe's identification of Levasseur is
troubling, its effect is outweighed by the sheer strength and
number of the other factors.
Officer Mendes' and Inspector Boutselis' testimony
corroborated Doe's identification testimony on certain
-20- 20
events, such as her initial and subsequent descriptions of
her assailant and the truck, her assertion that she was not
intoxicated, and her reactions to the photo arrays and field
identification. In addition, Mr. Ralls' eyewitness testimony
describing the assailant's truck was consistent with Doe's.
The only inroads that Levasseur's counsel was able
to make against Doe's credibility was highlighting her
failure to notice a scar on Levasseur's neck and tattoos7 on
his arm despite her testimony that Levasseur was wearing a
tanktop when he raped her. Such an oversight, however, is
understandable given the circumstances8 and would be unlikely
to undermine Doe's otherwise detailed description.
b. Levasseur's encounter with the blond girl _____________________________________________
After removing the tainted hearsay evidence from
our consideration, we conclude that the remaining evidence
about the blond-girl incident is still moderately probative
of Levasseur's guilt. Before assessing its probative
strength, we recount the evidence as it came in at trial.
Inspector Boutselis introduced the blond-girl
incident by testifying that two weeks after Doe's rape he saw
Levasseur drive up to an approximately sixteen-year-old blond
____________________
7. Although Levasseur showed his scar to the jury, he did
not show his tattoos to the jury.
8. Discussing Doe's failure to notice Levasseur's tattoos,
the district court found it reasonable to assume that a rape
victim would focus on her assailant's face rather than on his
arms.
-21- 21
girl walking on the sidewalk, beckon to her, and say "Come
on"; the young girl kept walking and did not get in the
truck. Boutselis also testified that when he and Guilfoyle
subsequently pulled Levasseur over, Levasseur told Boutselis
that the girl was his cousin and he was going to give her a
ride. When Boutselis asked Levasseur her name, Levasseur did
not answer.
Levasseur's testimony provided a different account
of the blond-girl incident. Levasseur testified that he had
been swimming with his aunt and cousin, that he had taken his
aunt home first, and that he was dropping his cousin off when
Inspectors Boutselis and Guilfoyle arrived on the scene. He
testified that his cousin's name is Tina Guillemette, she was
twenty-seven or twenty-eight years old, and he does not know
where she lives now.
Although she was not a witness to the blond-girl
incident, Levasseur's wife, Judith Levasseur, testified to
historical facts underlying Levasseur's explanation of the
incident. Judith Levasseur testified that Tina Guillemette
is Levasseur's cousin, she was approximately twenty-eight
years old on July 13, 1988, and does not look sixteen years
old. Judith Levasseur also testified that Tina Guillemette
is not a good friend of her husband's, it would be unusual
for Levasseur to go swimming with Tina Guillemette and his
-22- 22
aunt, and she knows how to get to Tina Guillemette's house in
Lowell.
To rebut the Levasseurs' testimony, the district
attorney called Inspector Guilfoyle. Consistent with
Boutselis, Guilfoyle testified to seeing a young blond girl
walking on the sidewalk, Levasseur's truck pulling up next to
her, Levasseur motioning to her, and the girl continuing to
walk on. After having spoken with the blond girl in close
proximity, Guilfoyle presumed that she was sixteen or
seventeen years old.
We begin our assessment of the strength of the
blond-girl incident by noting that although the Inspectors
and Levasseur provided competing explanations of the blond-
girl incident, consideration of the nature, source and extent
of the contradictions between the stories reveals the
weakness of Levasseur's explanation. Boutselis' and
Guilfoyle's testimony, Levasseur's prior statements to the
police, and his wife's testimony all contradict Levasseur's
explanation on significant details. We briefly note each of
the contradictions.
After talking with the blond girl face-to-face,
Guilfoyle testified that the blond girl was sixteen or
seventeen years old, and Boutselis estimated that she was
sixteen after seeing her from the police car. Levasseur,
however, testified that Tina Guillemette was twenty-eight
-23- 23
years old and Levasseur's wife testified that Tina
Guillemette does not look sixteen. Boutselis and Guilfoyle
both testified that Levasseur had beckoned and called "Come
on" to the blond girl, consistent with offering her a ride,
whereas Levasseur testified that he was dropping his "cousin"
off. Similarly, Guilfoyle testified that the blond girl was
walking along the sidewalk before Levasseur pulled over,
which is also inconsistent with Levasseur's claim that he was
dropping her off.
Levasseur's statement to Boutselis immediately
following the blond-girl incident contradicted his trial
testimony. Boutselis testified that when he questioned
Levasseur on the day of the blond-girl incident, Levasseur
explained his encounter with the blond girl as offering to
give his cousin a ride and he did not provide his cousin's
name when asked. However, Levasseur testified at trial that
he was dropping his cousin off and his cousin's name is Tina
Guillemette.
Most telling, perhaps, is that even Levasseur's
wife, testifying to seemingly innocuous background
information, indirectly contradicted Levasseur. While
Levasseur claimed that he had gone swimming with his aunt and
his cousin on July 13, 1988, Judith Levasseur testified that
Levasseur and Guillemette were not good friends and such an
event would have been an unusual occurrence. Similarly,
-24- 24
after Levasseur testified that he did not know where Tina
Guillemette now lives, Judith Levasseur testified that she
knows how to find Guillemette. This testimony raises the
question why Levasseur would not have contacted Guillemette
to have her testify and corroborate his testimony if his wife
knows where she lives.9 Given her importance to Levasseur's
explanation of the blond-girl incident, Tina Guillemette is
notably absent.
Having noted the contradictions discounting
Levasseur's explanation, we must assess how strong Inspectors
Boutselis' and Guilfoyle's testimony about the blond-girl
incident is as evidence of Levasseur's guilt. Even without
the hearsay evidence, Boutselis' and Guilfoyle's testimony
presents circumstantial evidence that the blond girl did not
know Levasseur and he had offered her a ride. For instance,
that Levasseur did not know the blond girl can be inferred
from Boutselis' and Guilfoyle's testimony that the blond girl
kept walking, did not stop and talk with Levasseur and did
____________________
9. Although a similar question may be asked of the
prosecution regarding its failure to call the blond girl to
testify, its failure to do so seems more excusable:
Inspectors Boutselis and Guilfoyle did not get the blond
girl's name and address. After learning from the blond girl
that she did not know Levasseur and he had offered her a ride
and deducing that Levasseur was following the same modus _____
operandi used to lure Doe into the truck, Boutselis and ________
Guilfoyle immediately pursued Levasseur, who had driven away
from the scene moments before. Under these circumstances,
one can excuse Boutselis and Guilfoyle for not taking the
additional time needed to remain and obtain the blond girl's
name and address.
-25- 25
not get in his truck. Similarly, that Levasseur offered the
blond girl a ride can be inferred from the testimony that
Levasseur beckoned to her and said "Come on."
These two inferential facts support the
prosecution's suggestion that, two weeks after Doe's rape,
Levasseur followed the same modus operandi with the blond _____ ________
girl as was used to lure Doe into the truck. Because this
evidence makes it more probable that Levasseur raped Doe, it
is moderately probative of Levasseur's guilt.10
Considering the prosecution's case cumulatively, we
find Doe's strong identification of Levasseur corroborated by
moderately strong evidence of modus operandi. Levasseur's _____ ________
defense, in contrast, is too unsound to weaken the
prosecution's case.
c. Levasseur's defense _______________________
Levasseur's defense was misidentification, and it
entailed his refutation of the charges and an alibi.
Levasseur's alibi and his refutation testimony are weak
exculpatory evidence, however, because Levasseur's alibi
witness was sleeping during the time of the disputed event,
and the district attorney impeached Levasseur's credibility.
____________________
10. This evidence becomes stronger evidence of guilt,
however, considering that the inconsistencies likely damaged
Levasseur's credibility overall and affected the other
elements of his defense, i.e., that he did not know Doe and ____
that he was misidentified.
-26- 26
Levasseur's wife, Judith Levasseur, was his alibi
witness. She testified that on the night of the rape, she
and Levasseur obtained take-out pizza (as was their custom on
Thursday nights), drove home, ate it, watched television and
went to bed around 10:00 p.m. On cross-examination, the
district attorney elicited the following damaging
information: Judith Levasseur is a heavier sleeper than her
husband and she frequently does not awaken when he gets out
of bed during the night. Even accepting Judith Levasseur's
testimony as true, she was asleep during the hours
surrounding the incident and could not consciously account
for Levasseur's presence in bed at that time. The rape
occurred sometime after midnight, leaving Levasseur ample
time to get out of bed undetected, get dressed and reach the
scene of the incident in nearby Lowell.
On direct examination, Levasseur resolutely denied
that he had raped Doe and testified consistently with his
wife that on June 30, 1988, the night in question, they had
taken pizza home and gone to bed. On cross-examination,
however, the district attorney impeached Levasseur's
refutation. The district attorney elicited from Levasseur
that on July 13, 1988, at the police station he had told
Inspector Boutselis that at 9:00 p.m. on June 30, 1988, he
could have been driving around downtown Lowell, but he was
-27- 27
not sure.11 Levasseur admitted that he only became sure
about his whereabouts after he spoke with his wife and her
immediate family. Levasseur conceded, however, that his in-
laws were not with Levasseur and his wife on June 30, 1988.
Therefore, their assistance in reconstructing his whereabouts
is dubious.
In addition to the impeachment of Levasseur's
testimony about the blond-girl incident, the district
attorney also impeached Levasseur's credibility more
generally with another logical inconsistency. Levasseur
testified on direct that he had offered to give Inspector
Boutselis a sperm sample while he was at the police station
on July 13, 1988. On cross-examination, however, Levasseur
conceded that as of July 13, 1988, the police had not
specifically informed him that he was suspected of rape; they
had only made vague references to abusing some girl and
claims of sexual harassment. With this line of questioning,
the district attorney implied that Levasseur disclosed a
guilty mind by offering a sperm sample when all that was
charged was battery and sexual harassment, neither of which
necessarily involve the ejaculation of semen.
____________________
11. In contrast, Boutselis testified that Levasseur had told
him that "he was in the Lowell area, the downtown area from
9:00 p.m. on, but he couldn't recall his exact whereabouts or
account for his exact whereabouts."
-28- 28
Given the inability of Levasseur's alibi witness to
vouch for his whereabouts and the widespread impeachment of
Levasseur's testimony, Levasseur's shaky defense case helped
the prosecution's case more than it hurt it. After comparing
the prosecution's case to Levasseur's defense, we conclude
that the strength of the prosecution's remaining evidence of
guilt, relative to Levasseur's defense, minimizes the impact
of the improperly admitted evidence on the jury's verdict.
Having determined that the error did not permeate
the record, the issue affected by the error was not central
to the prosecution's case, and the prosecution's case minus
the inadmissible evidence was strong, we find with fair
assurance that, in light of the record as a whole, the
Confrontation Clause violation did not substantially
influence the jury's verdict, and therefore it was harmless.
We now turn to Levasseur's remaining arguments.
C. Pre-trial Identification ____________________________
Levasseur also contends that the district court
erred by holding that Doe's December 17, 1988, identification
of him in his truck one-half mile from his home was not
unduly suggestive and did not violate the Due Process Clause.
We disagree and affirm for the reasons set forth in the well-
reasoned opinion of the district court below. Levasseur v. _________
Pepe, No. 93-10832-DPW, slip op. at 14-22 (D. Mass. Feb. 28, ____
1995). Careful review of the record convinces us that the
-29- 29
district court was correct in finding that Doe's
identification of Levasseur, under the totality of the
circumstances, possessed sufficient indicia of reliability,
as we discussed in section B.3.a. supra, and that counsel's _____
failure to object to the identification was not ineffective
assistance of counsel.
D. Ineffective Assistance of Counsel _____________________________________
Levasseur contends that the district court erred in
concluding that Levasseur was not denied effective assistance
of counsel when his trial counsel failed to object to the
hearsay testimony of the blond girl, failed to object to the
testimony of Levasseur's prior bad acts offered solely to
impugn his character, failed to object to the jury
instruction on identification, and failed to call a rebuttal
witness claiming to be the blond girl. We disagree and
affirm for the reasons set forth in the opinion of the
district court below. Levasseur v. Pepe, No. 93-10832-DPW, _________ ____
slip op. at 27-32 (D. Mass. Feb. 28, 1995). Careful review
of the record convinces us that the district court was
correct to find that only one of the alleged errors amounted
to deficient performance--the failure to object to the
hearsay testimony of the blond girl--but that no actual
prejudice resulted therefrom.
-30- 30
II. ___
CONCLUSION __________
In sum, we find that Levasseur procedurally
defaulted on his Due Process Clause and Confrontation Clause
claims; the Confrontation Clause violation was harmless
error; the pre-trial identification procedure was not unduly
suggestive and counsel's failure to object to the
identification was not ineffective assistance of counsel; and
Levasseur was not denied effective assistance of counsel.
For the reasons articulated, the district court did
not err in denying the application for habeas relief. The
district court's judgment is affirmed. ________
-31- 31
Reference
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