Of the Seventh Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 10-1173

DeWITT TASH,

Petitioner, Appellant,

v.

GARY RODEN, Superintendent; MARTHA COAKLEY, Attorney General,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Boudin, Ripple and Selya, *

Circuit Judges.

Janet Hetherwick Pumphrey for appellant.

Amy L. Karangekis, Assistant Attorney General, Criminal

Bureau, with whom Martha Coakley, Attorney General, was on brief

for appellees. 

November 16, 2010
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BOUDIN, Circuit Judge. In 2002 Dewitt Tash was convicted

of raping a mentally impaired adult woman in his care at a state

facility in Feeding Hills, Massachusetts. The putative victim had

no use of her arms, legs or hands and was incapable of

communication. The case rested importantly, but not entirely, on

Tash's confession to the crime. After two unsuccessful state

appeals, he sought habeas corpus; the federal district court denied

the petition but granted a certificate of appealability.

We recount the facts found by the state courts,

supplemented with consistent record evidence. Lynch v. Ficco, 438

F.3d 35, 39 (1st Cir.), cert. denied, 549 U.S. 892 (2006). At

trial, the victim did not testify and presumably could not have

done so given her impairments. The Commonwealth relied instead on

testimony from Geraldine Brown, a licensed practical nurse at the

facility; Wayne Macey, an Agawam, Massachusetts, police sergeant to

whom Tash confessed; and Christopher Fox, a state psychologist who

examined the victim and found her incapable of consenting to sex.

Brown testified that she and Tash were working alone

together at the facility in the early morning hours of July 19,

2000. Tash's duties there included cleaning, preparing meals and

caring for the facility's four disabled residents; pertinently,

both Tash and Brown were responsible for routinely checking and

changing the adult briefs (i.e., diapers) worn by the residents,

all of whom were incontinent.
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At 2:00 a.m., Tash left Brown in a staff lounge and

walked toward the residents' rooms. Brown thought this was

unusual, as she had recently finished changing all the residents'

briefs, and went to investigate. From the hallway, she observed

Tash standing inside the victim's room next to her bed--his back to

the hallway, his untucked shirt bunched around his waist and his

belt unbuckled--as he held both of the victim's legs in the air and

pulled her toward him. The victim's diaper had been removed and

her nightgown pulled up, leaving her naked from the waist down.

Brown ducked into another resident's room, pretended to

be occupied there, said loudly, "I'm in here," and saw Tash rush

down the hallway and into the bathroom a few minutes later. Brown

then went into the victim's room and found the victim's diaper refastened. A strip on the outside of the brief had changed color to

indicate moisture inside, but Brown opened it and observed nothing

out of the ordinary--including no sign of any sexual trauma. Brown

waited almost a week before reporting her suspicions to state

officials.

In due course, Macey interviewed Tash at a police

station. After Miranda warnings, Tash admitted under questioning

that he had twice engaged in sexual contact with the same victim,

putting his tongue and penis in the victim's vagina; each incident

occurred in the early morning hours, once about six months before

and the second time on or around July 19. Tash claimed that he had
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been experiencing impotency and was experimenting to see if his

condition had improved. Macey typed a written version of the

admissions, read it to Tash, and asked Tash to read and sign it,

which Tash did.

Under Massachusetts penal law, rape is defined as sexual

intercourse by force or threat of force and without consent. See

Mass. Gen. Laws ch. 265, § 22(b) (2008); Commonwealth v. Lopez, 745

N.E.2d 961, 965 (Mass. 2001). Sexual intercourse means penetration

of the victim's genitals, however slight. Commonwealth v.

Nylander, 532 N.E.2d 1223, 1225 (Mass. App. Ct. 1989). If the

victim is incapable of consenting--as Tash concedes was true here--

the only force that need be proven is the force necessary to effect

penetration. Commonwealth v. Blache, 880 N.E.2d 736, 741 (Mass.

2008).

Tash testified in his defense, contradicting Macey on

several key points. He conceded that he had told Macey that he was

experiencing impotency and then admitted upon questioning that he

was capable of penetrating the victim despite his impotency; but he

claimed in his own testimony that Macey had twisted this

hypothetical statement into historical fact. Although the written

confession was consistent with Macey's version, Tash denied reading

it or hearing it read before signing it, again contradicting Macey.

As for Brown's eyewitness account, Tash said that he was

merely changing the victim's diaper the same way and at the same
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time that he always did. Brown herself conceded that Tash normally

checked the residents' briefs at 2:00 a.m., although both Brown and

a second nurse testified that the accepted method for changing the

victim's diaper was to roll her to the side--not to raise her legs

in the air.

The jury convicted Tash of one count of rape, Mass. Gen.

Laws ch. 265, § 22(b). Tash sought review in the Massachusetts

Appeals Court on two occasions, raising claims of insufficient

evidence corroborating his confession and ineffective assistance of

counsel; both these appeals failed on the merits and the Supreme

Judicial Court ("SJC") refused further discretionary review.

Commonwealth v. Tash, 814 N.E.2d 764, 2004 WL 2049264 (Mass. App.

Ct.) (unpublished table decision), review denied, 816 N.E.2d 1222

(Mass. 2004); Commonwealth v. Tash (Tash II), 897 N.E.2d 1042, 2008

WL 5191455 (Mass. App. Ct. 2008) (unpublished table decision),

review denied, 902 N.E.2d 947 (Mass. 2009).

Tash then filed a timely petition for a writ of habeas

corpus, 28 U.S.C. § 2254 (2006), in federal district court. His

petition claimed three grounds for relief: insufficient

corroboration of his confession; insufficient evidence of guilt;

and ineffective assistance of counsel. The district court denied

the petition but granted a certificate of appealability to this

court as to all three issues.
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We review de novo the district court's denial of Tash's

petition, DeBurgo v. St. Amand, 587 F.3d 61, 67 (1st Cir. 2009);

but where a legal claim has been decided by the state court on the

merits, a habeas petitioner must show the ruling to be "contrary

to, or involv[ing] 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); see Williams v. Taylor, 529

U.S. 362, 409-13 (2000). Similarly, factual determinations by the

state court must be respected unless shown to be "unreasonable."

28 U.S.C. § 2254(d)(2).

Tash asserts that the Commonwealth failed to show that

his confession was "corroborated" by other evidence; in a nutshell,

the doctrine is that a criminal conviction cannot rest upon a

confession unless it is substantiated by other evidence. The

requirement is widely imposed in state and federal criminal cases,

see 1 McCormick on Evidence § 145, at 592 (K. Broun ed., 6th ed.

2006); 7 J. Wigmore, Evidence § 2071, at 511-24 (Chadbourn rev.

1978), although Massachusetts did not adopt it until Commonwealth

v. Forde, 466 N.E.2d 510, 513 (Mass. 1984).

What Tash overlooks in his briefing of this issue is that

the Massachusetts requirement imposed by Forde, even if it were

mistakenly applied by the state courts in this case, is not

(standing alone) a basis for habeas corpus or its section 2254

counterpart. Both federal remedies are, so far as pertinent, aimed
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only at those held "in violation of the Constitution or laws or

treaties of the United States." 28 U.S.C. §§ 2241(c)(3), 2254(a).

Habeas jurisprudence is often impenetrable; but this aspect is

clear. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Of course, a state requirement may also be one mandated

by the federal Constitution, but Tash fails to argue, let alone

demonstrate, that corroboration of confessions is of this

character. The leading Supreme Court cases that established the

requirement for federal trials, Opper v. United States, 348 U.S.

84, 89-93 (1954), and Smith v. United States, 348 U.S. 147, 156

(1954), described the requirement as the ordinary practice in state

as well as federal courts, but noted as well that it was not

universally followed in English courts.

More important, Opper and Smith made no reference to

constitutional compulsion; corroboration was merely deemed a better

rule sanctioned by common law. See Opper, 348 U.S. at 93. Learned

Hand doubted the soundness of the requirement, Daeche v. United

States, 250 F. 566, 571 (2d Cir. 1918), and Wigmore deemed it an

obstacle to truth, 7 Wigmore, supra, § 2070, at 510; and in any

event, as McCormick observed, "[c]onstitutional considerations . .

. do not demand it." 1 McCormick, supra, § 145, at 593. We have

agreed with McCormick. United States v. Singleterry, 29 F.3d 733,

737 (1st Cir.), cert. denied, 513 U.S. 1048 (1994); accord United

States v. Dickerson, 163 F.3d 639, 643 (D.C. Cir. 1999).
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Even if it were assumed arguendo that Opper represents a

constitutional minimum in at least some cases--which we are far

from holding--the outcome in this case would be the same, because

there was substantial corroboration of Tash's confession. There is

good reason to address the issue here independent of any

constitutional requirement of corroboration: this is so because

whether Brown's testimony provided substantial evidence of the

crime--the key issue under the corroboration doctrine--also bears

on Tash's further claim that the entire body evidence against him

was constitutionally insufficient.

Jurisdictions applying the requirement differ as to just

what must be corroborated, the required proof, and even the

rationale. See 1 McCormick, supra, § 145, at 595-96; id. §§ 147-

148, at 600-05. Massachusetts takes a narrow view favored by

Wigmore, demanding only "some evidence, besides the confession,

that the criminal act was committed by someone, that is, that the

crime was real and not imaginary." Forde, 466 N.E.2d at 513

(following 7 Wigmore, supra, § 2072, at 524). In federal criminal

trials, district courts require "substantial independent evidence"

that warrants belief in the truthfulness of the confession. Opper,

348 U.S. at 93. 

But neither Opper nor Forde requires that the

corroborative evidence be sufficient of its own force to prove the

crime beyond a reasonable doubt. Smith, 348 U.S. at 156; cf.
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Commonwealth v. Costello, 582 N.E.2d 938, 940 (Mass. 1991). The

point is to fortify the confession, not render it superfluous.

"Fortification" is a matter of degree; but the corroborating

evidence against Tash was substantial. For Brown, a co-worker

present on the scene, testified to seeing Tash in circumstances

supporting the charge of rape and testified further to Tash's

retreat when she warned him of her presence.

As already recounted, Brown testified to seeing Tash on

the night in question, with his untucked shirt bunched around his

waist and his belt unbuckled, standing opposite the victim naked to

the waist in her bed, as he held both of the victim's legs in the

air and pulled her toward him. Further, it was Brown and not Tash

who usually changed the female residents' briefs when the two

worked together. And holding the victim's legs in the air with one

hand and lifting her buttocks off the bed--as Brown observed Tash

doing--was contrary to standard practice for changing the diapers.

Tash's counsel argues that Brown's testimony alone does

not prove actual physical contact; it is Tash's confession that

supplies this critical detail, as well as a motive for his

behavior. But, as the precedents recited above make clear, the

corroboration need not prove the offense: it is enough that

corroboration bolster significantly the likelihood that the

confession itself is true and that, taken together, the
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corroboration and the confession establish the crime beyond a

reasonable doubt. To this latter issue we now turn.

Tash's insufficient evidence claim, relying on Jackson v.

Virginia, 443 U.S. 307 (1979), does invoke a rule of federal

constitutional law; but it is not clear that the claim was

exhausted. Tash's first application to the SJC did include Jackson

in a string cite for the statement that sufficient evidence is a

due process requirement; but the argument developed before and

after in the application related not to the overall sufficiency of

the evidence but to the sufficiency of the corroboration. Still,

the Jackson claim fails on the merits, and we are free to affirm on

this ground. Clarke v. Spencer, 582 F.3d 135, 145 (1st Cir. 2009).

For a Jackson claim, Tash must show that no "rational

trier of fact could have found the essential elements of the crime

beyond a reasonable doubt," 443 U.S. at 319, even when credibility

determinations and competing factual inferences are taken in favor

of the verdict, id. at 326. This might sound like ordinary circuit

court review of jury verdicts in federal trials--no easy hurdle

itself, United States v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998),

cert. denied, 525 U.S. 1138 (1999)--but in practice the Jackson

standard is higher and is rarely met where there is plausible

evidence to support a verdict. Cf. Stewart v. Coalter, 48 F.3d

610, 613-16 (1st Cir.), cert. denied, 516 U.S. 853 (1995).
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If Macey's testimony is credited, Tash confessed orally

and in writing to the only disputed element--sexual intercourse.

Tash did not deny signing the document but merely claimed that he

had not read it. If Brown's testimony is credited, highly

suspicious circumstances "fortified" the confession, and

penetration--if not alone proved by Brown's testimony--was

certainly made much more likely. Thus, the Jackson claim fails--

even if considered de novo because not decided on the merits in

state court, Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001),

cert. denied, 535 U.S. 1018 (2002).

Tash's remaining argument is that his trial counsel was

ineffective under Strickland v. Washington, 466 U.S. 668 (1984),

and its progeny. The Massachusetts Appeals Court decided this

claim on the merits, Tash II, 2008 WL 5191455, at *1-*2, under

state case law functionally equivalent to the relevant federal

standards, see Scarpa v. Dubois, 38 F.3d 1, 7-8 (1st Cir. 1994),

cert. denied, 513 U.S. 1129 (1995); and it was raised in Tash's

second application to the SJC. So the claim is ripe for habeas

review, albeit under the deferential standards already described.

The ineffectiveness claim rests on three alleged errors

by trial counsel. The first is that trial counsel retained a

psychologist with purported expertise in false confessions but

declined to call him as a witness at trial. But, as the Appeals

Court persuasively explained, once counsel had reviewed the
Trial counsel elicited that Brown told the grand jury that 1

she changed the residents' briefs that night at 12:30 a.m., not

1:30 a.m., and that it was "intuition" that led her to investigate

Tash's activities at 2:00 a.m. rather than the oddity of Tash going

to change the briefs again so soon after she had done so. He also

brought out that Brown had never before described Tash as "rushing"

out of the victim's room nor claimed to be afraid of him in

explaining her reluctance to report what she saw.

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expert's proposed testimony, declining to call him was a reasonable

tactical judgment. Tash II, 2008 WL 5191455, at *1. 

This is so because the psychologist's proposed testimony

about false confessions was based upon a theory that had not been

established as reliable; the theory concerned false confessions by

individuals of low intelligence and compliant personalities, but

the psychologist had examined Tash and found him to be intelligent;

and a false-confession defense would have effectively, if not

literally, required Tash to admit to making the confession in the

first place. In some respects, the expert could easily have

worsened Tash's position.

Next, Tash says that trial counsel botched the

impeachment of Brown by failing to cross-examine her on some of the

inconsistencies between her trial testimony and her testimony at

prior hearings, opting instead to play taped recordings of those

statements at the close of the defense case. But in fact counsel

did vigorously cross-examine Brown on inconsistent details, and 1

electing to focus on some points rather than others is

presumptively a strategic choice. Yarborough v. Gentry, 540 U.S.
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1, 8 (2003) (per curiam); Knight v. Spencer, 447 F.3d 6, 17 (1st

Cir. 2006).

Here, the additional details that Tash now says should

have been stressed were hardly critical. One claim is that counsel

should have contrasted one Brown reckoning of time with another--

that Tash had been with the victim for "a few minutes" versus

"three minutes." The other is that counsel allowed Brown to say,

inaccurately, that she had never before said she was afraid of Tash

because no one had ever asked her--matters relevant mainly to her

delay in reporting the crime to authorities. This kind of secondguessing of cross-examination on small details is fruitless.

Finally, although Brown helpfully conceded that her check

of the victim showed no signs of sexual trauma, Tash says counsel

should have pursued additional, cumulative evidence of the absence

of sexual trauma. The Appeals Court was hardly unreasonable in

finding that counsel was not deficient for failing to pile on

duplicative evidence of this uncontested fact. Cf. Ruiz v. United

States, 339 F.3d 39, 42 (1st Cir. 2003).

Affirmed.