# United Stat es Court of Appeals For the First C ircuit

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 .

DavidHoose , with whom Katz, Sasson, Hoose & Turnbull and Harris Freeman were on brief, for the appellant. Cathryn A. Neaves , Assistant Atto rn ey General, with whom Thomas F. Reilly , Attorney General, was on brief, for appellee.

February 5, 2003-2- HOWARD, Circuit Judge . Petitioner-appellant Charles Fryar, Jr. ("Fryar") appeals from the district court's orde r de nying 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 ap plied mechanistically to defeat the ends of justice."). We disagree and accordingly affirm. I. BACKGROUND As the distri ct c ourt 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.

Earlyon 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 stabbedto 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.-3- Fryar was indicted on May 10, 1989, andon 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 o f Fryar's petition, began on January 13, 1994.

At the secondtrial, Fryar presented evidence consistent with his claims of innocence - specifically, that Barklow was the
rea l killer and had confessed to the crime under reliable circumstances. Fryar sought to in clud e 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 evidentiarylaw 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. Immediatelyfollowing Barklow's testimony and the conclusion of the prosecution's case-in-chief, Fryar called Jason Franklin ("Franklin") to t he stand. Franklin testified that-4-

Barklow had, in fact, confessedto the murder in his presence five months earlier, while Bark low was living with Franklin's family. Franklin testified that Barklow ha d pr ovided 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 movedto 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 testimonycould 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 subst antive 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. T he district court reviewed Fryar's habeas claim de novo b ecaus e-5-

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 ("Acourt 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 admittedsubstantively, 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 subjec t to reasonable restrictions, and "evidentiary exclusions will not violate the constitution so long as they are not arbitrary or disproportionate to the purposes theyare 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 , e ven if the trial j udge's evidentiary ruling had been incorrect, any error w as, i n-6-

all likelihood, harmless. "It is almost impossible to imagine that anyjury could (a) fin d pet itioner guilty of the murder beyond a reasonable doubt, and (b) simultaneouslybelieve that Barklow lied when he denied confessing to the same murder." Id. at 94, n.5 (analyzing whether the assumed error had a subst anti al 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 confessio n 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 abilityto 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 allowe d t o mention Barklow's confession in his opening statement), and effectively precluded the juryfrom 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.-7- We assume argu endo that the state trial court's ruling underminedFryar'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 lon g 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 t here 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 importanc e of t he 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 th at the jury almost certainly did not find Fryar guilty of murder beyond a reasonable doubt while simultaneously believing that Barklow had lied on the-8-

witness stand when he denied confessing to the murder. See Fryar III , 185 F. Supp. 2d at 94 n.5. Both Barklowan d Franklin were fullye xamined an d cross-examined in front of the jury. If the ju ry bel ieved 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.