United States Court of Appeals

For the First Circuit

No. 02-1246

CHARLES FRYAR, JR.,

Petitioner, Appellant,

v.

LYNN BISSONNETTE,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Lynch, Circuit Judge,

 Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

David Hoose, with whom Katz, Sasson, Hoose & Turnbull and

Harris Freeman were on brief, for the appellant.

Cathryn A. Neaves, Assistant Attorney General, with whom

Thomas F. Reilly, Attorney General, was on brief, for appellee.

February 5, 2003
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HOWARD, Circuit Judge. Petitioner-appellant Charles

Fryar, Jr. ("Fryar") appeals from the district court's order

denying his petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. He argues that an evidentiary ruling at his state

court trial was a prejudicial violation of his Sixth and Fourteenth

Amendment rights, invoking Chambers v. Mississippi, 410 U.S. 284,

303 (1973) ("[W]here constitutional rights directly affecting the

ascertainment of guilt are implicated, the hearsay rule may not be

applied mechanistically to defeat the ends of justice."). We

disagree and accordingly affirm.

I. BACKGROUND

As the district court has meticulously set forth the

factual and procedural history of this case in a published opinion,

Fryar v. Bissonette, 185 F. Supp. 2d 87, 89-91 (2002) ("Fryar

III"), only a brief summary is necessary here.

Early on the morning of April 14, 1989, a fight broke out

on the streets of downtown Springfield, Massachusetts, between four

black high school students and a group of white college students.

During the brawl, one of the college students, Eric Palmer, was

stabbed to death. Fryar was arrested, and while in police custody

ultimately confessed to the stabbing. Fryar has since repudiated

this confession, and maintains that another of the youths, Thomas

Barklow ("Barklow"), was in fact responsible.
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Fryar was indicted on May 10, 1989, and on April 3, 1990,

was convicted of first-degree murder and two counts of assault and

battery. On appeal, the conviction resulting from this trial was

overturned by the Supreme Judicial Court of Massachusetts ("SJC")

on April 7, 1993, due to racial discrimination in the selection of

the petit jury. Commonwealth v. Fryar, 414 Mass. 732, 733 (1993)

("Fryar I"). The second trial, which is the subject of Fryar's

petition, began on January 13, 1994.

At the second trial, Fryar presented evidence consistent

with his claims of innocence - specifically, that Barklow was the

real killer and had confessed to the crime under reliable

circumstances. Fryar sought to include mention of Barklow's

confession in his opening statement, arguing an entitlement to do

so under Chambers. The trial court denied this request, basing its

ruling exclusively on state evidentiary law principles and without

reference to Fryar's Chambers argument. Barklow was ultimately

called as a witness for the prosecution, at which point Fryar was

able to subject him to vigorous cross-examination regarding the

confession and his involvement in the crime. At all times during

the trial, Barklow denied having committed or confessed to the

murder.

Immediately following Barklow's testimony and the

conclusion of the prosecution's case-in-chief, Fryar called Jason

Franklin ("Franklin") to the stand. Franklin testified that
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Barklow had, in fact, confessed to the murder in his presence five

months earlier, while Barklow was living with Franklin's family.

Franklin testified that Barklow had provided details about the

murder, and had stated that it "was real quick and easy." Franklin

also testified that Barklow was proficient with a butterfly knife,

the kind of knife used in the stabbing.

Fryar moved to have Barklow's out-of-court statements to

Franklin admitted as substantive evidence to show that Barklow, not

Fryar, had stabbed Palmer. The trial judge demurred and instructed

the jury at the end of Franklin's direct testimony that the

testimony could be used for impeachment purposes only. On January

25, 1994, Fryar was convicted of second-degree murder.

Fryar appealed, arguing that the trial court's refusal to

allow mention of Barklow's confession in his opening statement and

refusal to permit the use of Franklin's testimony as substantive

evidence of his innocence violated Chambers. The SJC rejected his

argument, without explicitly discussing the Chambers issue.

Commonwealth v. Fryar, 425 Mass. 237, 249-50 (1997) ("Fryar II").

Fryar's petition for a writ of certiorari to the United States

Supreme Court was denied on December 5, 1997. Fryar v.

Massachusetts, 522 U.S. 284 (1997).

On November 9, 1998, Fryar renewed his Chambers argument

in a petition for a writ of habeas corpus under 28 U.S.C. § 2254.

The district court reviewed Fryar's habeas claim de novo because
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the SJC did not address Fryar's federal claims, even though Fryar

had properly presented them. Fryar III, 185 F. Supp. 2d at 90-91

("A court can hardly defer to the state court on an issue that the

state court did not address."). This was required by circuit

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

As summarized by the district court, Fryar claimed that

"Chambers stands for the proposition that under the Sixth

Amendment, a reliable exculpatory out-of-court confession must be

admitted substantively, regardless of whether declarant is

available." Fryar III, 185 F. Supp. 2d at 91. The court

concluded, however, that Chambers was not controlling. Id. at 92.

Chambers addressed the right to cross-examination and the right to

present witnesses, the district court reasoned, while the instant

case concerned a potential violation of the "more amorphous 'right

to present a meaningful defense'." Id. The right to present a

defense is subject to reasonable restrictions, and "evidentiary

exclusions will not violate the constitution so long as they are

not arbitrary or disproportionate to the purposes they are designed

to serve." Id. (citing DiBenedetto v. Hall, 272 F.3d 1, 8 (1st

Cir. 2001)). The district court found the state trial judge's

handling of the evidentiary issues raised by Fryar to be "neither

'arbitrary' nor 'disproportionate'." Id.

The district court also noted that, even if the trial

judge's evidentiary ruling had been incorrect, any error was, in
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all likelihood, harmless. "It is almost impossible to imagine that

any jury could (a) find petitioner guilty of the murder beyond a

reasonable doubt, and (b) simultaneously believe that Barklow lied

when he denied confessing to the same murder." Id. at 94, n.5

(analyzing whether the assumed error had a substantial and

injurious effect on the jury's verdict) (citing Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993)). We granted a certificate of

appealability on the Chambers issue and now affirm.

II. ANALYSIS

As before, Fryar contends that the Constitution required

Barklow's out-of-court confession to be admitted as substantive

evidence. In Fryar's view, the district court erred in concluding

that his constitutional rights were sufficiently safeguarded by the

admission of Franklin's testimony for impeachment purposes and his

ability to cross-examine Barklow. Fryar concludes instead that the

trial court's rulings skewed the jury's perception of the case from

the beginning (as Fryar was not allowed to mention Barklow's

confession in his opening statement), and effectively precluded the

jury from using the confession in deliberation to corroborate

other, substantive, evidence tending to show Fryar's innocence.

While we believe Fryar's constitutional claim deserved more serious

consideration from the state courts, we disagree with Fryar's

conclusions.
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We assume arguendo that the state trial court's ruling

undermined Fryar's federal constitutional right, as he has argued.

Nevertheless, the assumed error was harmless. As the district

court observed, a federal habeas court is bound to uphold a state

court judgment, notwithstanding trial-type federal constitutional

error, so long as that error did not have a "substantial and

injurious effect or influence in determining the jury's verdict."

Brecht, 507 U.S. at 637 (citations omitted). If there was any

constitutional error at all in this case, it was trial error. See

California v. Roy, 519 U.S. 2, 5 (1996) (emphasizing that the

Brecht standard applies to trial-type, not structural, error). 

While we are loath to understate the importance of the

impeachment/substantive distinction, we are convinced that the

distinction would not have made a difference in the outcome of this

case. Eyewitnesses testified that Fryar attacked the victim with

a stick, a fact to which Fryar also testified. A witness testified

that he saw Fryar "punch" the victim, and that immediately after

the punch, the victim started bleeding. The knife that was used to

kill the victim was found, lying open, a short distance from where

Fryar was arrested and taken into custody. Finally, in his second

statement to police, Fryar confessed to the stabbing.

We agree with the district court that the jury almost

certainly did not find Fryar guilty of murder beyond a reasonable

doubt while simultaneously believing that Barklow had lied on the
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witness stand when he denied confessing to the murder. See Fryar

III, 185 F. Supp. 2d at 94 n.5. Both Barklow and Franklin were

fully examined and cross-examined in front of the jury. If the

jury believed that Barklow's testimony had been successfully

impeached, and that Barklow had confessed to Franklin, this could

easily have been the basis for a finding of reasonable doubt. We

can perceive nothing in the state court's rulings that would have

interfered with such a result. Any error was therefore harmless.

Affirmed.