PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RAE LAMAR WIGGINS, a/k/a Rae 

Carruth,

Petitioner-Appellant,  No. 09-6484

v.

BONNIE BOYETTE,

Respondent-Appellee. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, Senior District Judge.

(3:05-cv-00346-GCM)

Argued: October 26, 2010

Decided: February 15, 2011

Before WILKINSON and MOTZ, Circuit Judges,

and Damon J. KEITH, Senior Circuit Judge of the

United States Court of Appeals for the Sixth Circuit,

sitting by designation.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Wilkinson and Senior Judge Keith joined.

COUNSEL

ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF,

WIDENHOUSE & FIALKO, Chapel Hill, North Carolina, for
Appellant. Mary Carla Hollis, NORTH CAROLINA

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for

Appellee. ON BRIEF: Roy Cooper, Attorney General, Clarence Joe DelForge, III, Assistant Attorney General, NORTH

CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North

Carolina, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After a lengthy trial, a North Carolina jury convicted Rae

Lamar Wiggins, a.k.a. Rae Carruth ("Carruth"),1 of conspiracy

to commit the murder of his pregnant girlfriend, Cherica

Adams, use of an instrument to destroy their unborn child,

and discharge of a firearm into occupied property. Carruth

failed to obtain reversal on appeal, see State v. Wiggins, 584

S.E.2d 303 (N.C. Ct. App. 2003), disc. rev. denied, 588

S.E.2d 472 (N.C. 2003), cert. denied, 541 U.S. 910 (2004), or

any post-conviction relief in state court. He then filed this

petition for a writ of habeas corpus. Carruth maintains that the

state trial court’s decision to admit evidence of certain statements made by Ms. Adams before she died mandates habeas

relief. For the reasons that follow, we affirm the district

court’s denial of the writ.

I.

We first set forth the facts as recounted by the North Carolina Court of Appeals, Wiggins, 584 S.E.2d 303, then briefly

summarize the procedural history of the case.

1Because all witnesses referred to the defendant as Carruth, we do so in

this opinion. 

2 WIGGINS v. BOYETTE
A.

On the evening of November 15, 1999, Carruth and Ms.

Adams—then twenty-four years old and eight-months pregnant with Carruth’s child—went to a movie together at a theater in Charlotte, North Carolina. After the movie, the two

rode together to Carruth’s house to pick up Ms. Adams’s car.

At his house, Carruth used his cell phone to call Michael Kennedy and told Kennedy that he and Ms. Adams were about to

leave. Carruth and Ms. Adams then drove separate cars

toward Ms. Adams’s home.

The murder unfolded on Rea Road, a two-lane residential

street. Carruth led in his car, and Ms. Adams followed in hers.

Kennedy, accompanied by passengers Stanley Abraham in the

front seat and Van Brett Watkins in the backseat, followed

Ms. Adams in a rental car. As the three cars drove down the

street, Carruth slowed or stopped his large sport utility vehicle

in front of Ms. Adams’s car, forcing her to slow or stop her

car. Kennedy then drove his rental car beside Ms. Adams’s

car, and Watkins fired five shots into her car, wounding her

once in the neck and three times in the back. Carruth’s and

Kennedy’s vehicles fled the scene in different directions.

The shots did not kill Ms. Adams immediately. Rather, at

12:31 a.m., she called 911 from her cell phone and spoke to

an emergency dispatcher for over twelve minutes until an

ambulance arrived. During that call, Ms. Adams told the 911

dispatcher that: (1) she was eight months pregnant and had

been shot while driving her car; (2) she had been following

"her baby’s daddy," Rae Carruth, on Rea Road; (3) Carruth

had called somebody from his house before they left; (4) Carruth slowed his car down in front of her; (5) another car then

pulled up beside Ms. Adams’s car; (6) somebody from that

other car shot her; and (7) after she was shot, Carruth "just

left" the scene of the shooting.

At around 12:43 a.m., Mecklenburg Police Officer Peter

Grant arrived on the scene. Officer Grant conducted an onWIGGINS v. BOYETTE 3
scene interview with Ms. Adams in which she identified Carruth as the driver of the vehicle that slowed in front of her. At

1:10 a.m., an ambulance delivered Ms. Adams to the Carolinas Medical Center. There, in an interview with Officer

Grant, Ms. Adams gave a chronology of the events, explaining that: (1) she and Carruth went to the movies together and

returned to Carruth’s house to retrieve her car; (2) she followed Carruth down Rea Road; (3) Carruth came to a stop;

and (4) she couldn’t go around Carruth on the two-lane Rea

Road. When Officer Grant asked Ms. Adams if "your boyfriend [did] this to you," she "nodded her head ‘[y]es.’"

At 4 a.m., doctors moved Ms. Adams to a trauma intensive

care unit. At 7 a.m., Ms. Adams had an endotracheal tube

inserted into her throat. Traci Willard, the attending nurse at

the time, asked Ms. Adams if she remembered what had transpired. Ms. Adams nodded and motioned the nurse to bring

her a pen and paper. In her own handwriting, Ms. Adams

again described that night’s events, including Carruth’s

actions. Soon after communicating with Nurse Willard, Ms.

Adams went into a coma until she died a month later on

December 14, 1999. Her baby son survived but suffered brain

damage.

On November 25, 1999, the State arrested Carruth and

charged him with offenses related to the shooting; Carruth

posted bond and was released on bail on the condition that he

remain in the city. When Carruth learned of Ms. Adams’s

death on the afternoon of December 14, 1999, however, he

fled. The State then issued a warrant for Carruth’s arrest on

murder charges. The FBI found Carruth the next day in the

trunk of a friend’s car in Tennessee.

B.

The State charged Carruth with first degree murder of Ms.

Adams, conspiracy to commit that murder, discharging a firearm into occupied property, and using an instrument to

4 WIGGINS v. BOYETTE
destroy an unborn child. The State also charged coconspirators Kennedy, Watkins, and Abraham with crimes

related to the murder of Ms. Adams. Carruth was tried alone

before a death-qualified jury. The trial continued over six

weeks and consumed more than twenty-five trial days.

In its case in chief, in addition to Ms. Adams’s statements

detailed above, the State offered numerous exhibits and the

testimony of over twenty witnesses, including co-conspirator

Michael Kennedy, to establish Carruth’s orchestration of Ms.

Adams’s murder. Through cross-examination, the defense

attempted to establish that Ms. Adams was shot because of

Carruth’s coconspirators’ rage when he refused to finance a

drug deal. The defense offered forty-five witnesses who testified that Carruth had good character and a gentle nature, that

he was looking forward to the birth of his and Ms. Adams’s

child, and that his bright career as a professional football

player with the Carolina Panthers gave him the means to pay

child support. In rebuttal, the State offered the testimony of

two of Carruth’s former girlfriends. Both testified as to Carruth’s anger when each of them became pregnant with Carruth’s child, his unwillingness to pay child support, and his

threats of violence to them.

After two and a half days of deliberations, the jury indicated in a note to the trial judge that it was divided on all

charges and wished instruction. In model language, not challenged by Carruth (and less coercive than that approved in

Allen v. United States, 164 U.S. 492 (1896)), the judge

instructed the jury to deliberate further. After another day, it

returned its verdict—acquitting Carruth of first degree murder

but finding him guilty of conspiracy to commit murder, discharge of a firearm into occupied property, and use of an

instrument to destroy an unborn child. The court sentenced

Carruth to 245 months imprisonment for the conspiracy conviction plus two consecutive terms of 31 to 47 months for the

remaining two convictions.

WIGGINS v. BOYETTE 5
On appeal, the North Carolina Court of Appeals found error

in the trial court’s decision to admit into evidence Ms.

Adams’s handwritten notes to Nurse Willard. Wiggins, 584

S.E.2d at 308-09. But, "[g]iven the nature and extent of the

State’s evidence implicating defendant’s involvement in the

shooting," the state appellate court concluded that such error

was harmless and upheld the conviction. Id. at 310. The State

Supreme Court denied discretionary review and the Supreme

Court of the United States denied certiorari. See Wiggins, 588

S.E.2d 472, cert. denied 541 U.S. 910.

Carruth filed a Motion for Appropriate Relief (MAR) in

state court, claiming that the trial court’s admission of Ms.

Adams’s statements to Officer Grant (in addition to those to

Nurse Willard) violated his Sixth Amendment Confrontation

Clause rights. The MAR court agreed, finding that the trial

court had erroneously admitted all three of these statements in

violation of Carruth’s constitutional rights under the Confrontation Clause. But the MAR court held that such violations

were "harmless beyond a reasonable doubt" and so upheld the

conviction. The North Carolina Court of Appeals denied Carruth’s request for review.

Carruth then filed this habeas petition in federal court,

reprising, among other claims, the Confrontation Clause challenge. The district court denied habeas relief but granted a

certificate of appealability as to the Confrontation Clause

claim. Carruth asked us to expand the certificate of appealability to consider whether Blakely v. Washington, 542 U.S.

296 (2004), should be applied retroactively to his sentence;

we denied that motion. Accordingly, the sole issue before us

is whether the Confrontation Clause error requires the grant

of habeas relief.

II.

We initially recognize the extent and limit of the asserted

constitutional error at issue here. On one hand, Carruth does

6 WIGGINS v. BOYETTE
not contend before us that admission of the 911 call (both

playing the recording and publishing the transcript) violated

his Sixth Amendment Confrontation Clause rights. See Davis

v. Washington, 547 U.S. 813 (2006). On the other hand, the

State does not contend before us that admission of Ms.

Adams’s two statements to Officer Grant—one at the crime

scene and one at the hospital—and her handwritten notes to

Nurse Willard did not violate Carruth’s Sixth Amendment

rights. See Crawford v. Washington, 541 U.S. 36 (2004).

Because it makes no difference to our resolution of this case,

we assume without deciding that Carruth and the State accurately assess the constitutionality of Ms. Adams’s statements,

i.e., that admission of her statements to Officer Grant and

Nurse Willard amounted to constitutional error but admission

of the 911 call did not.

Of course, as Carruth correctly recognizes, such error does

not automatically entitle a petitioner to a grant of a writ of

habeas corpus. Instead, a habeas court reviews such error for

harmlessness. See Gutierrez v. McGinnis, 389 F.3d 300, 302-

03 (2d Cir. 2004) (Sotomayor, J.); see also Delaware v. Van

Arsdall, 475 U.S. 673, 684 (1986). The Supreme Court

explained in Brecht v. Abrahamson that, in determining the

harmlessness of a state court’s constitutional error in a criminal trial, a federal habeas court asks whether the error had a

"substantial and injurious effect or influence in determining

the jury’s verdict." 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

Courts have recently disagreed as to whether enactment of

the Antiterrorism and Effective Death Penalty Act

("AEDPA"), 28 U.S.C. § 2254(d), changes that standard.

Some courts have concluded that AEDPA requires a federal

habeas court to apply both Brecht and the deferential standard

of review contained in AEDPA to a state court’s harmless

error determination; others have held that the Brecht

harmless-error standard alone governs habeas review. Compare Johnson v. Acevedo, 572 F.3d 398 (7th Cir. 2009) with

WIGGINS v. BOYETTE 7
Ruelas v. Wolfenbarger, 580 F.3d 403 (6th Cir. 2009). We

have recently held that, in light of Fry v. Pliler, 551 U.S. 112,

120 (2007), even post-AEDPA, a federal habeas court need

only apply the Brecht standard to evaluate the harmlessness

of constitutional error in a state trial. See Bauberger v.

Haynes, ___ F.3d ___, No. 09-8111, at 9 (4th Cir. 2011).

Carruth vigorously contends that the Crawford error in his

case meets the Brecht standard. Indeed, he contends that the

three improperly admitted statements (which consumed less

than a day of this lengthy trial, in which the jury properly considered Ms. Adams’s 911 call and evidence of numerous

admissions by Carruth) constitute the "centerpiece of the

state’s case." Appellant’s Br. at 18. According to Carruth, the

state’s "primary evidence included and flowed from" the

improperly admitted evidence. Id. at 21. Accordingly, Carruth

maintains that the State "cannot carry its burden of proving

that" the decision to admit the challenged statements "did not

have a substantial and injurious" effect on the jury’s verdict.

Appellant’s Br. at 33 (emphasis added); see also id. at 39, 41.

We note at the outset that Carruth misstates the governing

standard of review. The Supreme Court has "deliberately"

refused to "phrase" the Brecht standard "in terms of ‘burden

of proof.’" O’Neal v. McAninch, 513 U.S. 432, 436 (1995).

Instead, a court must ask, "Do [we], the judge[s], think that

the error substantially influenced the jury’s decision?" Id. If

a court finds itself in "grave doubt" about whether a trial error

is harmless, it must grant habeas relief. Id. at 435. A "grave

doubt" exists when "in the judge’s mind, the matter is so

evenly balanced that he [or she] feels . . . in virtual equipoise

as to the harmlessness of the error." Id. at 435. If a habeas

court finds itself without any grave doubt as to the harmlessness of error, it must deny habeas relief.

Applying the correct standard in assessing harmlessness in

cases involving Confrontation Clause error, we consider "a

host of factors." Van Arsdall, 475 U.S. at 684. These include

8 WIGGINS v. BOYETTE
"the importance of the [improperly admitted] witness’ testimony in the prosecution’s case, whether the testimony was

cumulative, the presence or absence of evidence corroborating

or contradicting the testimony of the witness on material

points, the extent of cross-examination otherwise permitted,

and, of course, the overall strength of the prosecution’s case."

Id.

III.

With these principles in mind, we turn to analysis of Carruth’s contentions. In doing so, we consider the factors set

forth in Van Arsdall to determine if the three statements erroneously admitted in violation of Carruth’s Confrontation

Clause rights—both individually and taken together—require

the grant of habeas relief.

A.

As to the importance of the improperly admitted statements, Carruth contends that they formed the "focal point" of

the prosecution’s case. Appellant’s Br. at 16. In support of

this contention, he maintains that the prosecution heavily

relied on these statements in its opening and closing statements by describing Ms. Adams’s role as an "eyewitness" to

the crime and her testimony as "a voice" telling "her message." Id. at 19. This argument ignores the most critical evidence in this case, the twelve-minute 911 call—an extremely

powerful and unchallenged account provided by Ms. Adams

in her actual "voice." Id. Carruth himself now not only fails

to dispute that the trial court properly admitted the 911 call

but also concedes that it "had great visceral impact." Id. at 32.

In the 911 call, immediately after being shot, Ms. Adams

related:

[MS. ADAMS]: Police, I’ve been shot. I’ve been

shot.

WIGGINS v. BOYETTE 9
911: You’ve been shot? Where are you at Ma’am?

***

[MS. ADAMS]: I passed Calvary Church on the

. . .

911: Calvary Church

[MS. ADAMS]: Ah, no . . .

911: You’re where? Talk Ma’am, I —

[MS. ADAMS]: On Rea Road

***

MEDIC: Okay. How did this happen?

[MS. ADAMS]: I was following my baby’s daddy,

Rae Carruth the football player.

MEDIC: So you think he did it?

[MS. ADAMS]: He slowed down. And, a car

pulled up beside me.

MEDIC: And then shot at you?

[MS. ADAMS]: Yes.

***

[MS. ADAMS]: And before—and before we left,

he called somebody from his house.

***

10 WIGGINS v. BOYETTE
MEDIC: Where’s your husband at?

[MS. ADAMS]: I don’t have one.

MEDIC: Or your boyfriend? The one that you said

was with you. Where’s he at?

[MS. ADAMS]: He was in the car in front of me

and he slowed down and somebody pulled up

besides me and did this.

MEDIC: And then where’d he go?

[MS. ADAMS]: He just left.

MEDIC: Okay. All right. What’s his name?

[MS. ADAMS]: Rae Carruth, he plays for the Panthers.

***

MEDIC: Okay. All right. You got an officer close.

[Speaking to the medic] Did you hear what she said

about that boyfriend?

911: [Repeating what Ms. Adams told her] I got

his name was Rae Carroso [sic]. He’s in a white

Expedition. With a tag Mary Sam Nora, something,

something, 77.

***

911: Ma’am. I hate to do this to you. But, when

you last saw this Ford, when you last saw this car,

which way was it going? What road?

[MS. ADAMS]: Straight down Rea Road.

WIGGINS v. BOYETTE 11
Thus, Ms. Adams’s 911 call offered the State an extremely

powerful first-hand account of the crime by the victim herself.

The State proceeded to make full use of this abundant testimonial resource. The prosecutor began his opening statement

with a description of the call and a promise to the jury that it

would hear Ms. Adams herself "hold on and use her cell

phone to call 911" and "tell the 911 operator" about the attack

on her. At trial, the prosecutor made good on this promise. At

the very outset, before introduction of any of the improperly

admitted statements, the State focused on the crucial 911 call.

The prosecutor properly authenticated the tape of the call

through testimony from both the 911 operator and the medic

dispatcher. Then, after the trial court admitted the tape into

evidence, the prosecutor played the 911 call to the jury in

open court. Finally, the prosecutor distributed a transcript of

the 911 call to the jurors.

The statements to Officer Grant and Nurse Willard were

only admitted later, in less than a day, in this lengthy trial.

They may have enhanced Ms. Adams’s testimony, but the

substantial focus on, and probative weight of, the 911 call

overwhelmed the importance of these statements. It was the

911 call that turned Ms. Adams into the important "eyewitness" that she was, a person who gave a nearcontemporaneous "voice" to the night’s tragic events.

B.

Moreover, the record belies Carruth’s contention that the

improperly admitted evidence was not cumulative. Standing

alone, without these improperly admitted statements, the 911

call established the critical elements of the State’s case

against Carruth: (1) before Carruth and Ms. Adams left his

house, Carruth called somebody; (2) Ms. Adams followed

Carruth down Rea Road, with Carruth driving his white Ford

Expedition in front of her smaller car; (3) Carruth slowed

down; (4) a car pulled up beside Ms. Adams’s car and some12 WIGGINS v. BOYETTE
body shot her; and then (5) after she was shot, Carruth "just

left" the scene.

Additionally, the State called Ms. Adams’s cousin and

roommate to testify that she received a call from Ms. Adams

just prior to the shooting, at around 12:15 a.m. In the call to

her cousin, Ms. Adams said that she and Carruth were "on

their way over to the apartment," would be there in 15 minutes, and asked that the apartment be "straighten[ed] up"

because Ms. Adams had not "expect[ed] him to come over."

Furthermore, co-conspirator Michael Kennedy testified at

length, without the benefit of a plea agreement, to all of the

facts (and much more) set forth in the improperly admitted

statements. According to Kennedy, after he met Carruth in

January or February 1999, he socialized with Carruth and visited Carruth’s home "a lot of times." Some hours before the

shooting, Carruth elicited his assistance in the plan to kill Ms.

Adams. Carruth told Kennedy that he had "got [Ms. Adams]

pregnant," that she was trying to "juice him for money," and

that "he was already paying like Five Thousand Dollars in

child support, and he didn’t want to pay another 5,000 in child

support." Carruth explained that he had previously paid Van

Brett Watkins "to beat up [Ms. Adams] so that she would lose

the baby," but Watkins "hadn’t done it yet." According to

Kennedy, Carruth "was telling me that he was gonna take

[Ms. Adams] to the movies, and for me to stay in the area"

and await Carruth’s phone call. Upon receiving that call, Kennedy was to follow Ms. Adams’s car; Watkins was "to do the

rest." Carruth then gave Kennedy $100 and told him to "take

[Watkins] to get the gun."

Kennedy testified that, at 11:51 p.m., Carruth called to tell

him that he and Ms. Adams left the movies. At 12:19 a.m.,

Kennedy received another call from Carruth in which Carruth

told him: "We’re getting ready to leave the house." A short

time later, after following Ms. Adams (who in turn was following Carruth) down Rea Road, Kennedy testified that:

WIGGINS v. BOYETTE 13
Rae [Carruth] went over a hill and then down in the

dip. Then, he stopped his car; she stopped behind

his; I stopped behind her. Then, Watkins told me to

pull up beside her car. So, I pulled up beside her car

and he started shooting in her car.

All the while, according to Kennedy, Carruth remained in a

"stopped" position. After the shooting, Kennedy testified,

Carruth went "straight on Rea Road," just as Ms. Adams told

the 911 dispatcher.

Ms. Adams’s father also offered evidence duplicating the

improperly admitted evidence and corroborating Kennedy’s

testimony that Carruth stopped his car to facilitate the shooting.2

Ms. Adams’s father testified that when he asked Ms. Adams

at the hospital whether Carruth had a legitimate reason to

stop, due to a stoplight or stop sign, Ms. Adams shook her

head "no"—that no stoplight or stop sign caused Carruth to

stop.

In addition, a friend of Carruth’s, Candace Smith, also presented testimony duplicative of the improperly admitted evidence. Smith related that, in the early morning of November

16, 1999, at the hospital, just after Ms. Adams had been shot,

Carruth told her that he "wished that [Ms. Adams] would die."

When Smith asked Carruth if he was involved, Carruth "went

into like a deep trance; and, he wouldn’t even look at me."

According to Smith, Carruth said that he "hit his brakes, in his

car, to slow [Ms. Adams’s] car down" and witnessed the

2The parties dispute whether Carruth slowed down or stopped. Possibly

he both slowed down and then stopped. In the 911 call, Ms. Adams said

that Carruth slowed down; in the improperly admitted statements to Nurse

Willard and Officer Grant and the uncontested statement of her father, she

said that he stopped. This makes little difference given the testimony of

a forensic pathologist that slowing down in itself could have facilitated the

shooting by helping to align Kennedy’s car with Ms. Adams’s car. 

14 WIGGINS v. BOYETTE
shooting. Afterwards, Carruth told Smith, he "just drove off

and went to" a friend’s home.3

In sum, the improperly admitted statements, though of

course supportive of the State’s case, constituted mere drops

in the sea of evidence offered by the State to show Carruth’s

guilt and were cumulative of the 911 call and other evidence.

C.

Next, we assess the extent and nature of corroborating or

contradicting evidence as compared with the improperly

admitted evidence. Close examination of the record leaves us

with the firm conclusion that the same evidence that makes

the improperly admitted statements cumulative corroborates

them—and nothing in the record contradicts this corroborating evidence.

Carruth asks us to disregard Kennedy’s and Smith’s testimony. We have reviewed the extensive cross-examination of

both witnesses, in which defense counsel effectively explored

their biases, their histories, and the inconsistencies between

their testimony and prior statements. For example, counsel

focused on Kennedy’s bias as a co-conspirator seeking favor

from the State in exchange for his testimony and highlighted

several inconsistencies in Kennedy’s effort to place all the

3Van Brett Watkins, who pled guilty to second degree murder and so

avoided the death penalty, had a substantial history of violent criminal

activity, and had made a series of inflammatory and inconsistent statements; the State did not call him as a witness at trial. But, after the trial

court instructed the jury that Watkins had entered into a plea agreement

with the State and that it should examine his testimony "with great care

and caution," the defense called Watkins. Watkins corroborated Kennedy’s account as to Carruth’s motive (unwillingness to pay child support)

and role (planning and slowing down or stopping) in the murder. Moreover, phone records introduced by the State showed six calls between Carruth and Watkins on the day of the murder. Stanley Abraham, the last coconspirator, did not testify at trial. 

WIGGINS v. BOYETTE 15
blame on Carruth who assertedly "forced" Kennedy to participate. Similarly, defense counsel stressed Kennedy’s access to

all the trial testimony, providing him an opportunity to tailor

his testimony to the theory that Carruth designed the whole

scheme. As for Smith, defense counsel pointed to her potential bias and receipt of use immunity in exchange for her testimony, her delay in coming forward (suggesting a fear of

criminal liability for her involvement in the murder), and her

failure to relate Carruth’s asserted admissions at the hospital

to the defense’s private investigator in a pre-trial interview.

We have considered all of these efforts at impeachment and

can find no basis for holding that the jury could not credit

Kennedy’s and Smith’s testimony. Indeed, we have found

nothing in the record contradicting the critical portions of

their testimony. Moreover, other evidence corroborates their

testimony to a significant extent. For example, the State

offered, for corroboration purposes only, an audiotape replaying a police investigator’s early interview of Kennedy. In that

interview, Kennedy explained, consistent with his testimony

at trial, the plan as Carruth originally conceived it. Cell phone

records additionally corroborate Kennedy’s testimony. Furthermore, Kennedy’s testimony accorded with Ms. Adams’s

911 call. His testimony completes Ms. Adams’s story by

admitting that he drove the car that Ms. Adams witnessed pull

up beside hers, and that Watkins pulled the trigger. It also

confirms Ms. Adams’s statement, reinforced by her father’s

uncontested testimony, that Carruth slowed his car unexpectedly, with no stop sign or stoplight in sight.

D.

Additionally, we examine the extent of cross-examination

or impeachment of the improperly admitted statements. Carruth insists that the trial court admitted the three statements

not only "without cross-examination," but also "unimpeached." Appellant’s Br. at 18. Again the record belies Carruth’s claims. Of course, because she had been murdered,

16 WIGGINS v. BOYETTE
defense counsel could not cross examine Ms. Adams at trial.

But the defense could elicit considerable testimony that the

shock caused by the gun wounds, pharmacological sedatives,

and volatility of memory formation associated with traumatic

events rendered Ms. Adams’s improperly admitted statements

unreliable.

Defense counsel questioned Nurse Willard as to Ms.

Adams’s mental capacity in the hospital. The nurse elaborated

on Ms. Adams’s precarious state, recalling her continuous

treatment with Versed and Morphine—an anti-anxiety medication and painkiller, respectively—that may have caused a

"synergistic effect" on Ms. Adams’s central nervous system.

On doctor’s orders, the nurse eventually put Ms. Adams to

sleep with these narcotics, highlighting their potency.

Later in the trial, the jury heard testimony from Dr.

Thomason—Ms. Adams’s treating physician in the hospital—

about the effects of these drugs. Dr. Thomason explained that

studies have not conclusively determined the retrograde

amnesia effects of Versed—that is, disruption of existing

memories formed prior to taking the medication. Dr. Thomason also acknowledged that these medications affect the

"awareness" and "wakefulness" of a patient and increase the

risks of "suggestibility" and confirmed that Ms. Adams suffered from shock. The defense was thus able to argue that

even though Ms. Adams did not lapse into total unconsciousness, she was suffering from certain cognitive impairments

that undermined her capacity to accurately recount the shooting.

Defense counsel called Dr. Loftus, a memory expert, to cast

doubt on the improperly admitted statements. Dr. Loftus identified specific indications that Ms. Adams’s statements to

Officer Grant and to Nurse Willard revealed a faulty recollection of the shooting. The doctor explained how the shock of

the shooting caused Ms. Adams to misreport a "well-known

fact" like the color of Carruth’s Expedition. The doctor also

WIGGINS v. BOYETTE 17
testified that an "atmosphere of suggestion and suspicion"

may have contaminated the improperly admitted statements.

Through these witnesses, the defense offered evidence

challenging the improperly admitted statements. Carruth’s

counsel thus drew the jury’s attention to Ms. Adams’s unstable condition at the time of those statements—a pregnant

woman wounded by gun shots, sedated by medication, suffering from shock, and exposed to the atmosphere of suspicion

emanating from the police and her family. Accordingly, we

do not find that the lack of cross-examination forecloses a

finding of harmlessness.

E.

Although not specifically mentioned in Van Arsdall as relevant, Carruth argues that "given [1] the continual emphasis

placed on [the improperly admitted] statements throughout

[Carruth’s] trial, [2] the importance of those statements . . . at

trial, [3] the substantial impeachment of the state’s other witnesses, [and] [4] the strength of the defense," the course of

jury deliberations and the compromise verdict demonstrate

that the State "cannot carry its burden of proving that the

admission of these statements did not substantially affect the

. . . verdict." Appellant’s Br. at 41.

This argument rests on two faulty premises. First, as noted

above, it rests on Carruth’s misunderstanding of the proper

analysis. The State has no "burden" to prove harmlessness;

rather, a habeas court examines the evidence admitted at trial

and the trial error and determines whether it has any "grave

doubt" as to whether the error was harmless. O’Neal, 513

U.S. at 435. Second, and equally fundamentally, Carruth has

not established the four predicates on which he relies, i.e.,

emphasis on the improperly admitted statements, importance

of these statements, substantial impeachment of the State’s

case, and strength of his own defense. Stripped of the faulty

premises, Carruth’s argument on this point is reduced to the

18 WIGGINS v. BOYETTE
contention that the length of jury deliberations, need for further instruction, and compromise verdict, in and of themselves, demonstrate that the asserted Confrontation Clause

error was prejudicial. This argument fails.

The length of the deliberations here—four days after a trial

consuming six weeks—hardly seems untoward and, of course,

the need for additional instruction does not signal prejudice.

See, e.g., United States v. Aldridge, 413 F.3d 829, 833-35 (8th

Cir. 2005). This is particularly so given that the trial judge

gave a model reinstruction, which was singularly noncoercive and simply explained to the jurors that they should

continue to deliberate. They did so and returned after another

day of deliberations with a unanimous verdict.4

Similarly, that the verdict may be inconsistent—acquittal of

first degree murder and conviction on the other counts—does

not provide a basis to upend it. See United States v. Powell,

469 U.S. 57, 64-65 (1984). Rather, as the Supreme Court has

instructed, "[the] most that can be said" of an inconsistent verdict is that "[it] shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that

does not show that they were not convinced of the defendant’s

guilt." Id. at 63 (quoting Dunn v. United States, 284 U.S. 390,

393 (1932) (Holmes, J.)).

We recognize that the length of deliberations and an initial

impasse may indicate a "difficult case," see Kennedy v. Lockyer, 379 F.3d 1041, 1056 n.18 (9th Cir. 2004) (internal quotation omitted), and may in some circumstances support the

conclusion that habeas relief is warranted. But a difficult case

does not necessarily mean a weak one. See, e.g., United States

v. Valencia, 600 F.3d 389, 412 (5th Cir. 2010); United States

v. Gilsenan, 949 F.2d 90, 96 (3d Cir. 1991). And here, given

4We note that not even Carruth maintains that the jurors’ deliberations

were infected by any improper external influence. Cf. United States v.

Duncan, 598 F.2d 839, 866 (4th Cir. 1979). 

WIGGINS v. BOYETTE 19
the abundant evidence outlined above, these facts do not provide support for the grant of a writ of habeas corpus.5

F.

Finally, we consider the overall strength of the State’s case.

Through the admissible evidence described above—including

Ms. Adams’s 911 call; the testimony from Kennedy, Smith,

Ms. Adams’s cousin, and her father; and the cell phone

records—the State presented a very strong case in chief that

Carruth conceived and saw to the murder of Ms. Adams.

Moreover, in its case in chief, the State also presented powerful evidence of Carruth’s flight to avoid arrest and his

motive for the crime. After being charged with first degree

murder of Ms. Adams on December 14, 1999, Carruth fled

North Carolina. Executing a warrant for his arrest, an FBI

agent found Carruth in the trunk of a friend’s car at a Tennessee motel, with $3900, food, and water. From this evidence,

the jury certainly could conclude Carruth fled to avoid a

charge and conviction for murder. As for motive, Kennedy

and Smith testified that Carruth sought to murder Ms. Adams

and the child to avoid the sort of child support payments a

court had ordered him to pay to the mother of another one of

his children and the State also offered evidence that Carruth

claimed he could not afford the combined child support payments.

Furthermore, when Carruth’s witnesses testified that he

welcomed the birth of a new child and that, as a professional

football player, he had ample income and no motive to avoid

child support, the State produced rebuttal witnesses that cast

5While a mistrial is not necessary to show prejudice under Brecht, we

note that unlike the cases on which Carruth so heavily relies, the verdict

here did not follow previous mistrials due to deadlocked juries. See Fry,

551 U.S. at 122-23 (Stevens, J., concurring); Kennedy, 379 F.3d at 1056

n.18. 

20 WIGGINS v. BOYETTE
serious doubt on these claims. Michelle Wright—the mother

of Carruth’s son, Rae, Jr.—described her difficulties in

obtaining child support from an unwilling Carruth. When Carruth refused to pay child support, Wright had to file suit and

submit her son to a paternity test to obtain court-ordered

relief; only then did Carruth pay any child support. And, after

Wright attempted to involve Carruth in their son’s life, Carruth "joked" that she should not be surprised if she "got in a

fatal car accident."

Another of Carruth’s girlfriends, Amber Turner, both substantiated Wright’s testimony and testified to a similar threat

to her. Turner explained that from 1995 to 1997, when Carruth was refusing to pay child support to Wright for his baby

son, and forcing Wright to take him to court, he was giving

Turner $500 every month and buying her a Lexus and clothes.

Carruth told Turner that he intended to "fix" his blood test to

avoid paying child support to Wright. In March 1998, when

Turner herself became pregnant with another of Carruth’s

children, Carruth threatened her—"don’t make me send somebody out there to kill you, you know I’d do it." He told Turner

to abort their child, which she ultimately did. Turner also

identified a four-page letter that Carruth had written her while

in prison awaiting trial in this case, which substantially corroborated their close relationship. In the letter, Carruth

implored Turner not to talk to the police. Instead, Carruth told

Turner to talk to his lawyers and explained "here’s what you

recall"—that he loved and missed his son, "didn’t mind paying child support" and other facts helpful to his case—all of

which Turner testified were untrue.

In short, given the admissible 911 call from Ms. Adams and

the testimony and documentary evidence outlined above, the

three improperly admitted statements, considered both individually and taken together, were almost entirely cumulative.

With a wealth of admissible evidence, the State presented an

overwhelmingly strong case that Carruth orchestrated a plan

to kill Ms. Adams to avoid paying child support and that the

WIGGINS v. BOYETTE 21
plan unfolded as he had designed it. After Carruth and Ms.

Adams left the movies and returned to his house to pick up

Ms. Adams’s car, Carruth unexpectedly told Ms. Adams he

would follow her home and then called Kennedy to alert him

that they were on the way. On the drive to Ms. Adams’s

home, Carruth led her down Rea Road, where Kennedy followed both cars with Watkins as the backseat passenger.

Without any legitimate reason to slow or stop, Carruth did

slow or stop in the middle of Rea Road, compelling Ms.

Adams to do so as well. Kennedy pulled up next to Ms.

Adams’s car and Watkins fired the gun, striking Ms. Adams

with four bullets and fatally wounding her. Carruth fled the

scene of the shooting and, when later charged with Ms.

Adams’s murder, fled the state. Given the overwhelming

admissible evidence, we are confident that the asserted Confrontation Clause error did not "substantially influence[ ] the

jury’s decision." O’Neal, 513 U.S. at 436.

IV.

In sum, we hold that the error asserted here did not produce

a "substantial and injurious effect" on the jury’s verdict.

Brecht, 507 U.S. at 637 (internal quotation omitted). Accordingly, the judgment of the district court denying habeas relief

is 

AFFIRMED.

22 WIGGINS v. BOYETTE