United States Court of Appeals

For the First Circuit

No. 05-2272

JOHN EVANS,

Petitioner, Appellant,

v.

PAUL VERDINI,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

 Torruella, Lynch, and Lipez,

Circuit Judges.

Emanuel Howard for petitioner.

Susanne G. Reardon, Assistant Attorney General, with whom

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

October 18, 2006
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LYNCH, Circuit Judge. John Evans was convicted in

Massachusetts state court of the first-degree murder of Lyle

Jackson and was sentenced to life in prison. His conviction was

affirmed by the Massachusetts Supreme Judicial Court (SJC). See

Commonwealth v. Evans, 786 N.E.2d 375, 380 (Mass. 2003). His

subsequent petition in federal district court for a writ of habeas

corpus was denied. See Evans v. Verdini, No. Civ.A. 04-10323, 2005

WL 1638119, at *3 (D. Mass. Jul. 13, 2005). 

Evans appeals from that denial. He argues that the

exclusion of certain defense witness testimony concerning a

recanted prior statement violated his Sixth Amendment right to

present a defense. He also argues that the state prosecutor

violated the rule that a prosecutor may not impeach his own witness

as a ploy for the introduction of inadmissible evidence, and that

this violated his Sixth Amendment Confrontation Clause rights.

These arguments cause us to explore the topic of impeachment and

recanted statements.

We reject Evans's claims and affirm the district court's

denial of the petition.

I.

We briefly recount the facts as recited in detail in

Commonwealth v. Evans, 786 N.E.2d at 381. 

In the early morning of January 25, 1995, Jackson and his

friend, Marcello Holliday, were at Cortee's, a nightclub in the
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Dorchester area of Boston. Evans also was at Cortee's with his

brother Jimmy Evans (Jimmy) and two friends, Robert Brown and

Ronald Tinsley. Around 1:45 a.m., Jackson and Holliday left

Cortee's for Walaikum's, a nearby restaurant. They arrived at

approximately 2:20 a.m. About fifteen minutes later, Evans, his

brother, Brown, and Tinsley entered Walaikum's, then crowded with

customers. Evans, Jimmy, Brown, and Tinsley left after a minute or

so, but quickly reentered the restaurant. Tinsley began talking

with a young woman, and Brown said to Evans and Jimmy, "That's one

of them right there." After verifying that Brown was referring to

Jackson, Jimmy drew a gun and approached Jackson, who backed away,

stumbled, crawled into a corner, and began begging for his life.

Jimmy then shot at Jackson four or five times. After seeing Jimmy

shoot at Jackson, Willy Wiggins, who owned Walaikum's, went to the

back of the restaurant and called the police.

Alton Clarke, another customer, tried to leave the

restaurant and was confronted by Evans, who also was armed with a

handgun. Evans allowed Clarke to leave once he stated that he had

nothing to do with Jackson. Evans then approached Jackson and shot

at him once. 

Evans, Jimmy, Brown, and Tinsley left Walaikum's, and a

car chase ensued. All four were apprehended by police after they

turned into a dead-end street and tried to flee on foot.
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Jackson died from an infection related to his gunshot

wounds. He had been shot three times.

The Evans brothers, Brown, and Tinsley were charged with

murder by joint venture and tried together before a jury. At

trial, the government introduced the testimony of Marvette Neal,

who knew Jackson, Evans, and Jimmy. Neal had told police

approximately two weeks after the shooting that he had seen both

Evans and his brother shoot at Jackson in Walaikum's. Later that

month, however, when he testified before the grand jury considering

the charges against Evans, Neal stated only that he had seen Evans

and Jimmy inside Cortee's and Walaikum's. By the time of Evans's

trial, in the fall of 1996, Neal had backed further away from his

initial statement. During voir dire, Neal stated that he could

recall no more than that he had seen Jackson at Cortee's and

Walaikum's. He testified that he did not remember making his prior

statement to police, that he did not see Evans or Jimmy shoot

Jackson, and that he did not tell police anything to that effect.

After voir dire, the prosecution proceeded with Neal as

a witness; Neal testified before the jury that he could not recall

having seen Evans or Jimmy at Cortee's or Walaikum's on the night

in question. The trial judge, over objection, permitted the

government to introduce Neal's grand jury testimony to the contrary

as substantive evidence. The government also was permitted, again
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over objection, to lay a foundation to impeach Neal with his prior

inconsistent statement to the police. 

The defense then cross-examined Neal. In particular,

Evans's counsel asked Neal whether he had seen Evans or his brother

with a gun on the night of the shooting. Neal testified that he

had not.

The next day, the government called Detective Kenneth

Dorch, who had taken Neal's initial statement. Detective Dorch

testified to Neal's prior inconsistent statement -- that is, that

Neal had told him that he had seen Evans shoot at Jackson. The

trial judge instructed the jury six times during Detective Dorch's

testimony that the prior statement was admitted only for the

purpose of impeachment and was not to be considered substantive

evidence.

During his defense case, Evans sought to introduce the

testimony of Eddie Hawkins, who had shared a jail cell with Tinsley

after the shooting. Hawkins had made a pre-trial statement to

police that Tinsley, while in jail, had admitted to shooting

Jackson and had acknowledged that he had intended to accept a plea

bargain until he learned that the Commonwealth could place him only

in the getaway car and not in Walaikum's. However, during voir

dire Hawkins repudiated his prior statement about Tinsley's

confession and stated that he had fabricated the story of the
Hawkins did not recant his statements about Tinsley's 1

having changed his mind about accepting a plea bargain.

Jimmy also was convicted. Brown and Tinsley were 2

acquitted.

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confession to gain more favorable treatment in his own pending 1

case. As a result of Hawkins's voir dire testimony, the trial

judge ruled that Evans's attorney could not question Hawkins about

his conversation with Tinsley other than to ask whether they had

discussed the pending charges against Tinsley. Evans then opted

not to call Hawkins.

On November 8, 1996, Evans was convicted of first-degree

murder on theories of deliberate premeditation and extreme atrocity

and cruelty. He also was found guilty of two charges of illegally 2

possessing ammunition, one charge of illegally discharging a

firearm within five hundred feet of a building, two charges of

illegally possessing a firearm, two charges of assault and battery

with a dangerous weapon, and various motor vehicle charges. The

trial judge sentenced Evans to a mandatory term of life

imprisonment on the murder conviction, and to concurrent terms of

four to five years for the illegal possession of a firearm and

assault and battery convictions. The other convictions were placed

on file with Evans's consent. 

Evans filed a timely notice of appeal and a motion for a

new trial. The motion for a new trial was denied, and Evans
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appealed. His direct appeal to the SJC was consolidated with his

appeal from the denial of his motion for a new trial. The SJC

affirmed the convictions and the denial of the motion for a new

trial. Evans, 786 N.E.2d at 380. Evans then filed a habeas

petition in federal district court. The petition was denied. See

Evans, 2005 WL 1638119, at *3. A certificate of appealability was

granted as to two issues.

II.

Review of the district court's denial of habeas relief is

de novo. Norton v. Spencer, 351 F.3d 1, 4 (1st Cir. 2003). To

state a federal habeas claim concerning a state criminal

conviction, the petitioner must allege errors that violate the

Constitution, laws, or treaties of the United States. Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991); see also 28 U.S.C.

§§ 2241(c)(3), 2254(a). "[F]ederal habeas corpus relief does not

lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780

(1990).

Federal habeas review of the state court's decision is

governed by the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. Under AEDPA,

habeas relief is unavailable on federal claims "adjudicated on the

merits in State court proceedings" unless the state court's

decision "was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme
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Court of the United States" or "was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding." 28 U.S.C. § 2254(d). Under our

circuit law, federal claims "raised before the state court but

. . . left unresolved" are reviewed de novo. Lynch v. Ficco, 438

F.3d 35, 44 (1st Cir. 2006) (quoting Horton v. Allen, 370 F.3d 75,

80 (1st Cir. 2004)) (internal quotation marks omitted); accord

Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001) ("AEDPA imposes

a requirement of deference to state court decisions, but we can

hardly defer to the state court on an issue that the state court

did not address.").

III.

A. Challenges Based on the Rule that a Prosecutor Cannot

Impeach His Own Witness as a Pretext for Placing

Inadmissible Evidence Before the Jury

We start with Evans's strongest claim. Evans's habeas

petition makes three arguments related to Neal. Taking the fact

that Neal's voir dire testimony showed that he would testify that

he recalled essentially nothing of importance to the prosecutor,

Evans argues (1) Neal himself should never have been allowed to

testify, (2) Neal's grand jury testimony that he had seen Evans at

Walaikum's should not have been admitted, and (3) Detective Dorch

should not have been allowed to testify that Neal had told the

police that he (Neal) had seen Evans and his brother shoot Jackson
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at Walaikum's. Evans asserts that his rights under the

Confrontation Clause were violated.

Violation of a rule of evidence does not itself amount to

a constitutional violation, which is a necessary predicate for a

habeas claim. Kater v. Maloney, 459 F.3d 56, 64 (1st Cir. 2006).

Still, on the facts of a given case, an evidentiary error may

result in such fundamental unfairness to the defendant as to

constitute a due process violation. See, e.g., Chambers v.

Mississippi, 410 U.S. 284 (1973).

Another necessary predicate for habeas relief is that the

claims presented in the federal habeas case have first been

presented to the state court. See 28 U.S.C. § 2254(b), (c); Picard

v. Connor, 404 U.S. 270, 275 (1971). The first argument -- that

Neal should not have been allowed to testify at all after his voir

dire disclaimer of his prior statements -- was not presented to the

SJC and so is not before us.

The second argument -- that the grand jury minutes should

not have been admitted -- was presented to the SJC. The SJC agreed

with Evans that those minutes did not meet the requirements of the

past recollection recorded exception to the hearsay rule. Evans,

786 N.E.2d at 382-83. It also held that the evidence was not

substantively admissible under a state law rule pertaining to

falsely testifying about a lack of memory because there was no

finding by the trial judge that the claimed lack of memory was
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fabricated. Id. at 383. The SJC held, nonetheless, that the error

in admitting the grand jury testimony was harmless, given that the

defendants and another witness had testified that Evans was at

Walaikum's on the night in question. Id. This ruling was

unassailable, and habeas relief thus is not warranted. See Brecht

v. Abrahamson, 507 U.S. 619, 637 (1993) (holding that a petitioner

is entitled to habeas relief on the basis of a trial error only if

that error "'had [a] substantial and injurious effect or influence

in determining the jury's verdict'" (quoting Kotteakos v. United

States, 328 U.S. 750, 776 (1946))); see also Petrillo v. O'Neill,

428 F.3d 41, 44-45 (1st Cir. 2005) (applying Brecht post-AEDPA).

The most significant of Evans's claims, at least in

theory, is the third: that the prosecution engaged in a subterfuge

to get into evidence Neal's prior statement to the police that he

had seen Evans shoot at Jackson. The prosecution had no other

witness who said as much, and the defendant testified that he had

not shot Jackson.

Evans's best arguments are grounded in the line of cases

holding that "a criminal prosecutor may not employ a prior

inconsistent statement to impeach a witness on a 'mere subterfuge'

or for the 'primary purpose' of placing before the jury substantive

evidence which is otherwise inadmissible." 1 Broun et al.,

McCormick on Evidence § 38, at 168 (6th ed. 2006) (emphasis

omitted). Of course, there is no general prohibition in the
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Constitution on a party impeaching its own witness. Cf. Fed. R.

Evid. 607; Mass. Gen. Laws ch. 233, § 23. In criminal cases,

however, such impeachment may trigger Due Process and Confrontation

Clause concerns.

This rule imposing constraints on prosecutors is widely

accepted. See, e.g., United States v. Gilbert, 57 F.3d 709, 711

(9th Cir. 1995) ("'[T]he government must not knowingly elicit

testimony from a witness in order to impeach him with otherwise

inadmissible testimony.'" (quoting United States v.

Gomez-Gallardo, 915 F.2d 553, 555 (9th Cir. 1990))); United States

v. Patterson, 23 F.3d 1239, 1245 (7th Cir. 1994) ("[T]he

prosecution may not 'call a witness that it [knows will] not give

it useful evidence, just so it [can] introduce hearsay evidence

against the defendant in the hope that the jury [will] miss the

subtle distinction between impeachment and substantive evidence."

(second and third alterations in original) (quoting United States

v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984))); United States v.

Morlang, 531 F.2d 183, 189 (4th Cir. 1975) (stating that the

government must not, "in the name of impeachment, . . . present

testimony to the jury by indirection which would not otherwise be

admissible").

The rule has several components, usually articulated as

requiring a showing of "mere subterfuge" or "primary purpose" by

the prosecutor in eliciting the testimony. Those requirements, in
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turn, lead to further inquiry. Application of the "mere

subterfuge" or "primary purpose" doctrine focuses on the entire

content of the witness's testimony, not just the challenged

statement. If the testimony as a whole is useful on any fact of

consequence, then the witness may be impeached on any other matter

testified to by means of a prior inconsistent statement. 1 Broun

et al., supra, § 38, at 168-69; accord United States v. Kane, 944

F.2d 1406, 1412 (7th Cir. 1991) ("When a government witness

provides evidence both helpful and harmful to the prosecution, the

government should not be forced to choose between the Scylla of

foregoing impeachment and the Charybdis of not calling the witness

at all."). The claim here is that Neal's testimony was not useful

to the prosecutor on any matter of consequence, and that Neal was

called as a subterfuge to get into evidence his prior hearsay

statement.

There is an initial question of whether this claim, which

was presented to the SJC, was presented as a matter of federal

constitutional law. The Commonwealth concedes that this exhaustion

question is very close and difficult. We bypass this issue because

it is clear Evans would fail on this claim, even if it had been

presented in constitutional terms to the SJC and even if we gave no

deference to the SJC's decision. See Fortini, 257 F.3d at 47.

As the SJC noted, Evans's argument has some initial

appeal, but it ignores one important fact. See Evans, 786 N.E.2d
Evans argues that his counsel was required, as a zealous 3

advocate, to cross-examine Neal. Because Neal offered no testimony

of any value to the prosecution, however, this argument is without

merit.

Evans also contests the exclusion of those parts of 4

Hawkins's reported conversation with Tinsley that Hawkins did not

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at 384. Our turning point (as was the SJC's) is that it was the

defense's cross examination of Neal, not the Commonwealth's direct

examination, that created the basis for the admission into evidence

of Neal's prior inconsistent statement. It was defense counsel

who, on cross examination, asked Neal if he had ever seen Evans

with a gun in his hand on January 24 or 25. When Neal said he had

not, the door was open for the prosecution to impeach Neal's

testimony with his statement to Detective Dorch that he had seen

Evans shoot Jackson. There was no violation of the rules of

evidence, much less a violation of constitutional rights.3

B. Challenge Based on the Exclusion of Hawkins's Testimony

Evans's second argument is that he should have been

permitted to question Hawkins about his earlier conversation with

Tinsley, which the trial court excluded. He argues that because

Hawkins's prior statement to the police (that Tinsley had

confessed) supported the defense's theory of the case (that

Tinsley, not Evans, had been the second shooter), defense counsel

should have been permitted to question Hawkins about the portion of

the conversation concerning Tinsley's supposed confession and to

impeach Hawkins with his prior statement to the police. Evans 4
repudiate (that is, that Tinsley was planning to enter into a plea

bargain until he realized that the police might be unable to place

him at the scene). Any error with respect to the exclusion of such

testimony was harmless. See Brecht, 507 U.S. at 637-38.

To be clear, the court permitted Evans to call Hawkins 5

but precluded questions about the conversation with Tinsley other

than to say that a conversation had occurred. Evans then decided

not to call Hawkins. As the astute federal habeas judge pointed

out, Hawkins was permitted to testify, but not about a statement he

had just sworn was untrue. See Evans, 2005 WL 1638119, at *2.

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argues that in limiting Hawkins's testimony by precluding questions

about the confession, the trial judge violated his (Evans's) Sixth 5

Amendment compulsory process rights.

The question was presented to and ruled on by the SJC.

The SJC ruled that the trial judge could have properly concluded,

based on Hawkins's voir dire, that Hawkins would offer no relevant

testimony if called. Id. at 385. In addition, it held that

Hawkins's prior statement was inadmissible hearsay, and that Evans

had not shown it to be inconsistent with any relevant testimony

that Hawkins would have given. Id. Moreover, the SJC ruled that

the defense was not permitted to call Hawkins just so it could

impeach him with an otherwise inadmissible prior statement. Id.

Finally, the SJC held that given Hawkins's repudiation of his prior

statement, it was hardly apparent that the statement, although

hearsay, was so reliable and trustworthy that its exclusion

interfered with Evans's constitutional right to present a defense.

Id. Our inquiry is whether the SJC's conclusions involved an
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unreasonable application of clearly established federal law as

interpreted by the Supreme Court. 28 U.S.C. § 2254(d).

"A defendant's right to present relevant evidence is not

unlimited, but rather is subject to reasonable restrictions."

United States v. Scheffer, 523 U.S. 303, 308 (1998); see also

Taylor v. Illinois, 484 U.S. 400, 410 (1988) ("The accused does not

have an unfettered right to offer testimony that is incompetent,

privileged, or otherwise inadmissible under standard rules of

evidence."); Rock v. Arkansas, 483 U.S. 44, 55 (1987) ("Of course,

the right to present relevant testimony is not without limitation.

The right 'may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.'" (quoting

Chambers, 410 U.S. at 295)). As long as they are not "arbitrary or

disproportionate to the purposes they are designed to serve,"

limitations on the admissibility of evidence do not violate a

defendant's right to present a defense. Rock, 483 U.S. at 56; see

also Scheffer, 523 U.S. at 308. Hawkins's prior statement was

hearsay not within any exception and was therefore not

independently admissible. See Commonwealth v. Semedo, 665 N.E.2d

638, 646 (Mass. 1996).

Evans argues that even if the prior statement was not

substantively admissible, he should have been permitted to use it

for impeachment purposes. He argues that it was particularly

unfair to exclude Hawkins's testimony after he had recanted, but to
Massachusetts seems to have adopted a broader rule that 6

no party (not just prosecutors) has a statutory right "to call a

witness whom he knows beforehand will offer no testimony relevant

to an issue at trial solely for the purpose of impeaching that

witness with prior inconsistent statements that would otherwise be

inadmissible." Commonwealth v. McAfee, 722 N.E.2d 1, 8 (Mass.

1999). Our concern is only whether this state evidentiary rule as

applied to Hawkins constituted a deprivation of federal

constitutional rights so as to render the SJC's opinion an

unreasonable application of the pertinent law.

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permit Neal, who also had recanted, to testify. Moreover, Evans

emphasizes that although it was the prosecution that sought to

present Neal's prior statement, here it was the defendant who

sought to impeach Hawkins, and that denying him the opportunity to

do so impaired his Sixth Amendment right to present a defense. In 6

theory at least, a defendant may have a viable claim that "applying

the rule [against impeachment of one's own witness] to prevent him

from mounting a critical attack on a key defense witness is

unconstitutional." 1 Broun et al., supra, § 39, at 169; see

Imwinkelried & Garland, Exculpatory Evidence: The Accused's

Constitutional Right To Introduce Favorable Evidence § 8-2, at 260-

61 (3d ed. 2004).

There are material differences between the two

situations, however, apart from the fact that the prior

inconsistent statement by Neal came in because the defense opened

the door. There was a difference in the reliability of the two

statements. Hawkins was not a first-hand witness to the shooting,

but purported to repeat a statement by Tinsley that confessed that
"The hearsay rule, which has long been recognized and 7

respected by virtually every State, is based on experience and

grounded in the notion that untrustworthy evidence should not be

presented to the triers of fact." Chambers, 410 U.S. at 298.

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Tinsley had shot Jackson. Hawkins then told the trial judge on

voir dire that Tinsley had never made a confession. Hawkins said

he made up the whole thing in order to curry favor with the

police. By contrast, Neal's recantation by loss of memory could 7

easily be taken as a fabrication.

As the SJC held, the state trial judge correctly found

that the recently recanted prior statement was not "so reliable and

trustworthy that, although hearsay, its exclusion might offend

[Evans's] constitutional right to present a defense." Evans, 786

N.E.2d at 385. The SJC's holding was not an unreasonable

application of law for habeas purposes.

The dismissal of the petition for habeas corpus is

affirmed.