United States Court of Appeals

For the First Circuit

No. 01-2515

DONALD DOLINGER,

Petitioner, Appellant,

v.

TIMOTHY HALL,

Respondent, Appellee.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

 

Before

Torruella, Circuit Judge,

Campbell and Cyr, Senior Circuit Judges.

 

Nona E. Walker, with whom Committee for Public Counsel

Services, Public Defender Division, was on brief for petitioner.

William J. Meade, Assistant Attorney General, with whom Thomas

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

 

September 4, 2002

 
1The pseudonym "Jonathan Doe" is used simply to protect the

identity of the victim.

2

CYR, Senior Circuit Judge. Appellant Donald Dolinger

seeks to set aside a district court judgment which dismissed the

habeas corpus petition in which he claimed that his criminal

convictions for child rape under Massachusetts law were obtained in

violation of the Confrontation Clause. See U.S. Const. amends. VI,

XIV. We affirm the district court judgment.

I

BACKGROUND

The record on appeal reflects that in early 1993

Dolinger's putative fourteen-year-old victim ("Jonathan Doe")1

allegedly had begun having oral and anal intercourse three to four

times a week with an even younger boy. During the summer of 1993,

Dolinger's wife, Robin, complained to Jonathan Doe's mother that

Jonathan had kissed the Dolinger's minor daughter, yet there is no

evidence that Dolinger himself ever learned of the alleged "kissing

incident."

Dolinger and Jonathan Doe met for the first time in the

fall of 1993, when Dolinger hired Doe to assist him with various

maintenance and renovation jobs. Shortly thereafter, as a

"Christmas gift," Dolinger hired a female prostitute to perform

fellatio on Jonathan, who subsequently told Dolinger that he had

not enjoyed the experience because he was "bisexual." During the
2The Massachusetts child-rape statute makes it a crime

"unlawfully [to] ha[ve] sexual intercourse or unnatural sexual

intercourse, and abuse[] a child under sixteen years of age."

Mass. Gen. Laws Ann. ch. 265, § 23.

3Dolinger elected not to testify.

3

ensuing months, Dolinger and Doe mutually engaged in acts of

fellatio. On one such occasion, Dolinger inquired whether Doe

would allow Dolinger to "poke" him. Upon being asked by Doe what

"poke" meant, Dolinger explained: "That's where I put my penis in

your bum." Although Doe verbally agreed, he soon began to cry,

telling Dolinger to stop because it hurt. Dolinger initially

refused, then relented.

Early in 1994, Dolinger made a remark which caused

Jonathan to cry, though by the time of the March 1996 trial

Jonathan could not recall what Dolinger had said which upset him.

At about the same time, Jonathan's mother reported to her therapist

that Jonathan's behavior had become belligerent and erratic.

Following the ensuing police investigation, eleven counts

of child rape were lodged against Dolinger. See Mass. Gen. Laws

Ann. ch. 265, § 23.2 At trial, the defense contended that Dolinger

had never engaged in any sexual relations with Jonathan.3

Additionally, in an effort to impeach the trial testimony of the

then seventeen-year-old Jonathan — to the effect that he was

sexually naive at the time of the rapes, viz., unfamiliar with such

concepts as "bisexuality," "oral sex," and "anal sex" — Dolinger
4The Massachusetts rape-shield statute provides, in pertinent

part:

Evidence of the reputation of a victim's

sexual conduct shall not be admissible in any

investigation or proceeding before a grand

jury or any court of the commonwealth for a

violation of [Mass. Gen. Laws Ann. ch. 265, §

23]. Evidence of specific instances of a

victim's sexual conduct in such an

investigation or proceeding shall not be

admissible except evidence of the victim's

sexual conduct with the defendant or evidence

of recent conduct of the victim alleged to be

the cause of any physical feature,

characteristic, or condition of the victim;

provided, however, that such evidence shall be

admissible only after an in camera hearing on

a written motion for admission of same and an

offer of proof. If, after said hearing, the

court finds that the weight and relevancy of

said evidence is sufficient to outweigh its

prejudicial effect to the victim, the evidence

shall be admitted; otherwise not.

Mass. Gen. Laws Ann. ch. 233, § 21B.

4

unsuccessfully sought to adduce evidence regarding Jonathan's

earlier homosexual relationship with the younger boy. Citing the

Massachusetts rape-shield statute, Mass. Gen. Laws Ann. ch. 233, §

21B,4 the trial court ruled that, whatever its relevance, the

proffered evidence was "well overshadowed . . . [by its]

prejudicial effect." Ultimately, the jury convicted Dolinger on

eight of the eleven child-rape charges.

On direct appeal, Dolinger contended that the trial

court's evidentiary ruling infringed his Sixth Amendment right to

cross-examine Doe in order to test the credibility of Doe's
5

testimony to the effect that he had been sexually naive in 1993-94

when the alleged rapes occurred. Dolinger reasons that had the

jury determined that Doe lied regarding his naiveté, it may also

have found that Doe was fabricating the central trial testimony

that he had been raped by Dolinger.

In due course, the Massachusetts Appeals Court affirmed

the Dolinger convictions. See Commonwealth v. Dolinger, No. 97-P558 (Mass. App. Ct. Mar. 6, 1998) (unpublished opinion). First, it

rejected Dolinger's contention that the excluded evidence would

have explained how Doe had acquired his sexual knowledge, thereby

affirming the trial court observations that (i) "it strain[ed]

credulity that a fifteen-year old wouldn't know about anal and oral

sex," and (ii) Doe's "consensual" homosexual relationship with the

younger boy bore little similarity to Doe's relationship with

Dolinger. Id. at 2 (citing Commonwealth v. Ruffen, 507 N.E.2d 684,

687-88 (Mass. 1987) ("If the [ten-year-old] victim had been

sexually abused in the past in a manner similar to the abuse in the

instant case, such evidence would be admissible at trial because it

is relevant on the issue of the victim's knowledge about sexual

matters.") (emphasis added)). 

Second, the Appeals Court rejected Dolinger's contention

that, even assuming fifteen-year-olds normally would be

knowledgeable regarding the sexual matters at issue, the

prosecution had gone out of its way to portray Doe as a sexual
6

neophyte before the jury. In addition, the Appeals Court noted

that the jury had not been invited to infer that Doe either

possessed "unusual knowledge or [an] unusual lack of knowledge

about sex." Id. at 3.

Moreover, the Appeals Court rejected Dolinger's claim

that the trial court abused its discretion in ruling that the

relevance of the excluded evidence was not outweighed by its

potential prejudice to Doe, particularly since the evidence of

Doe's prior homosexual relationship with the younger boy tended

directly to undermine Doe's overall credibility regarding his

sexual naiveté (e.g., Doe's testimony that he did not understand

what Dolinger had meant by the word "poke"), thereby inviting the

jury to infer that Doe may have fabricated the rape charges against

Dolinger as well. Finally, the Appeals Court ruled that the

prosecution had not attempted to establish that Doe was sexually

naive, but merely that he was "an emotionally and financially needy

child," and, in addition, that Dolinger had been able to present

other impeachment evidence to the jury, viz., Doe's prior

inconsistent statements that (i) Dolinger had raped him every day,

and (ii) Dolinger had raped him only on the eleven occasions

alleged in the indictment. Id. at 4 & n.3.

After the Massachusetts Supreme Judicial Court summarily

rejected the Dolinger application for further appellate review, see

Commonwealth v. Dolinger, 695 N.E.2d 667 (1998), the United States
5Dolinger also contends on appeal that the determinations of

fact made by the Commonwealth courts were unreasonable. See 28

U.S.C. § 2254(d)(2) (requiring habeas relief where state court

issues decision "based on an unreasonable determination of the

facts in light of the evidence presented"). But see Mastracchio v.

Vose, 274 F.3d 590, 598 (1st Cir. 2001) (noting that findings of

fact made by state courts are entitled to a presumption of

correctness which can be rebutted only by "clear and convincing"

evidence); 28 U.S.C. § 2254(e). Subsection 2254(d)(2) applies

exclusively to determinations of "'basic, primary, or historical

facts,'" however, Sanna v. Dipaolo, 265 F.3d 1, 7 (1st Cir. 2001)

(citation omitted), not to mixed questions of fact and law, which

are more amenable to analysis under section 2254(d)(1). See Ouber

v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002). Since the issue as to

whether the trial court violated Dolinger's rights under the

Confrontation Clause presents a mixed question of law and fact,

see, e.g., Wilkerson v. Cain, 233 F.3d 886, 890 (5th Cir. 2000), we

need not address the Dolinger contention predicated on subsection

2254(d)(2).

7

District Court for the District of Massachusetts denied the ensuing

petition for habeas corpus relief, see 28 U.S.C. § 2254, then

issued its certificate of appealability.

II

DISCUSSION

The district court order denying the petition for habeas

corpus is subject to de novo review. See Almanzar v. Maloney, 281

F.3d 300, 303 (1st Cir. 2002). Additionally, Dolinger is entitled

to relief only if we determine that the adverse decisions reached

by the Commonwealth courts were "contrary to, or involved 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).5
8

"Under the 'contrary to' clause, a federal habeas court

may grant the writ if the state court arrives at a conclusion

opposite to that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than [the

Supreme] Court has on a set of materially indistinguishable facts.

Under the 'unreasonable application' clause, a federal habeas court

may grant the writ if the state court identifies the correct

governing legal principle from [the Supreme] Court's decisions but

unreasonably applies that principle to the facts of the prisoner's

case." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

The parties are in agreement that Olden v. Kentucky, 488

U.S. 227 (1988), provides the controlling Supreme Court

confrontation-clause precedent. Olden, an African-American male,

was charged with sodomizing a white female. During trial, the

court rejected an evidentiary proffer by the defense — viz., that

the alleged victim was living with another African-American male at

the time of trial — notwithstanding the victim's inconsistent trial

testimony that she had been living with her mother. Id. at 229-30.

Despite the impeachment value inherent in the defense proffer, the

trial court reasoned that the jury might harbor a racial bias which

could prompt it unfairly to hold the victim's current interracial

relationship against her. Id. at 232. 

The Supreme Court reversed the Olden conviction, id. at

233, explaining that "[w]hile a trial court may, of course, impose
9

reasonable limits on defense counsel's inquiry into the potential

bias of a prosecution witness, to take account of such factors as

'harassment, prejudice, confusion of the issues, the witness'

safety, or interrogation that [would be] repetitive or only

marginally relevant,' the limitation here was beyond reason, [and

amounted to] [s]peculation as to the effect of jurors' racial

biases." Id. at 232; see also Delaware v. Van Arsdall, 475 U.S.

673, 679 (1986) ("'[T]he Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-examination

that is effective in whatever way, and to whatever extent, the

defense might wish.'") (citation omitted). Further, the Supreme

Court concluded that the erroneous evidentiary ruling was not

harmless. Olden, 488 U.S. at 233.

Turning now to the "contrary to" clause in 28 U.S.C. §

2254(d)(1), we cannot conclude that the Appeals Court came to "a

conclusion opposite to that reached by [the United States Supreme]

Court on a question of law or . . . decide[d] [the] case

differently than [the Supreme] Court has on a set of materially

indistinguishable facts." Williams, 529 U.S. at 412-13. For one

thing, although the legal rule announced in Olden delineates a

nonexclusive list of criteria which may inform trial court

evidentiary rulings under the Confrontation Clause (e.g.,

harassment), these criteria are not susceptible to bright-line

definition, but rather require that the trial court apply a case-
10

and-fact-specific balancing test. Furthermore, as our case

summary demonstrates, the facts in Olden are in no sense

"materially indistinguishable" from those in the present case. For

instance, Olden asserted the defense of consent, whereas no such

defense is available under the Massachusetts child-rape statute,

see supra note 2, and unlike the Dolinger proffer, the Olden

proffer was not barred by the state rape-shield law.

 As the Appeals Court "identifie[d] the correct governing

legal principle from [the Supreme] Court's decisions," we need only

inquire as to whether it "unreasonably applie[d] that principle to

the facts." Williams, 529 U.S. at 412-13. It is clear that the

Appeals Court appropriately focused its determination on the

components of the Olden analysis most pertinent to the Dolinger

proffer excluded below, by balancing (i) its degree of relevance;

(ii) its potential to cause unfair prejudice to Doe; and (iii) the

extent to which the proffer was repetitive or duplicative of other

available impeachment evidence.

A. Relevance

On appeal, Dolinger contends that the proffer made before

the trial court was relevant to (i) whether Jonathan Doe perjured

himself when he testified that he had been sexually naive in 1993-

94, thus making it more likely that he had fabricated the child

rape accusations as well; (ii) whether Doe wanted revenge against

Dolinger, who in early 1994 angrily had confronted him about the
11

"kissing incident" involving Dolinger's minor daughter; and (iii)

whether Doe was sufficiently sophisticated to understand that

Dolinger would be arrested and prosecuted if Doe were falsely to

accuse Dolinger of child rape.

Like the trial court, the Appeals Court reasonably

recognized that this evidence was relevant to impeach Jonathan Doe

on the issue relating to his sexual naiveté. Dolinger, No. 97-P558, at 4 (Mass. App. Ct. Mar. 6, 1998) ("[Doe's] testimony

displays a certain unsureness about oral and anal sex, and . . .

testimony as to [Doe's] prior acts with another might have the

tendency to impeach the witness."). Doe testified that, in

December 1993, when Dolinger asked whether he had enjoyed his

experience with the female prostitute, Doe replied that he had not,

because he thought he was bisexual. Similarly, Doe testified that

he did not understand what Dolinger meant by the term "poke," and

had not understood it until Dolinger defined it for him. See supra

at p. 3.

On the other hand, the Appeals Court reasonably

discounted the relevance of the proffer relating to the "revenge"

theory as propounded by Dolinger. First, although the defense

maintained that Dolinger had confronted Doe in early 1994 about the

"kissing incident," Doe testified that he could not remember the

reason for the confrontation. More importantly, Doe's prior

homosexual relationship with a younger boy at most would tend to
12

show Doe's precocious understanding regarding sexual mechanics,

rather than demonstrate his awareness that an allegation that an

adult had raped a child could be used as a weapon of revenge. 

Dolinger, No. 97-P-558, at 5 (Mass. App. Ct. Mar. 6, 1998).

Accordingly, we conclude that the Commonwealth courts

appropriately evaluated the materiality and relevance of the

Dolinger proffer.

B. Prejudice

Next, Dolinger contends that (i) the Massachusetts rapeshield statute precludes evidence of a victim's predisposition to

sexual promiscuity, unless independently relevant to the victim's

biases, see Commonwealth v. O.C Houston, 722 N.E.2d 942, 945 (Mass.

2000); and (ii) in all events the protections afforded under the

rape-shield statute cannot trump the Confrontation Clause.

The Appeals Court recognized that the analyses required

under Olden and the Massachusetts rape-shield statute are not

incompatible, but rather that each requires a similar balancing of

competing factors. The rape-shield statute establishes a

rebuttable presumption that evidence of a victim's alleged sexual

promiscuity would be prejudicial to the rape victim, see Mass. Gen.

Laws Ann. ch. 233, § 21B ("Evidence of the reputation of a victim's

sexual conduct shall not be admissible . . . provided, however,

that such evidence shall be admissible only after an in camera

hearing [at which] . . . the court finds that the weight and
13

relevancy of said evidence is sufficient to outweigh its

prejudicial effect to the victim."), since it seriously intrudes

upon his privacy and threatens to permit the jury unfairly to

extrapolate, from the victim's prior consensual sexual acts, his

consensual participation in the crime charged. See Houston, 722

N.E.2d at 945; see also Michigan v. Lucas, 500 U.S. 145, 149 (1991)

(holding that rape-shield evidentiary exclusions are not per se

Sixth Amendment violations, because, depending on the facts of the

case, an exclusion may serve legitimate State interests in

protecting victim); Stephens v. Miller, 13 F.3d 998, 1002 (7th Cir.

1994) (observing that rape victims "deserve heightened protection

against . . . unnecessary invasions of privacy"); cf. Fed. R. Evid.

412.

Echoing the rape-shield statute, Olden likewise

contemplates that the trial court should weigh factors such as the

potential for "harassment, prejudice, [and] confusion of the

issues." Olden, 488 U.S. at 232. Thus, it is hardly an

unreasonable application of Olden to conclude, in light of the

potential for substantial jury confusion, that trial courts should

first find compelling reasons before setting aside the presumption

of nonadmissibility, particularly where, as here, the prejudice and

harassing cross-examination proffered is to be inflicted upon a

victim who is a minor. Accord, e.g., Quinn v. Haynes, 234 F.3d 837,

850 (4th Cir. 2000) (observing that state court appropriately
14

considered minor victim's age and emotional susceptibility in

determining whether to admit evidence of prior sexual conduct).

C. Redundancy

Dolinger maintains that no redundancy would have resulted

had the trial court admitted his excluded proffer along with the

other impeachment evidence. He contends that (i) Doe's motive to

frame him, by way of revenge, was not strongly established by the

other evidence admitted in the trial court — i.e., that Dolinger

had confronted Doe in early 1994 regarding the "kissing incident"

— since Doe testified that he could not remember what Dolinger had

said to him during that confrontation, and the jury therefore could

infer no concrete motive for Doe's revenge; and (ii) evidence that

Doe previously had told his counselor that Dolinger raped him every

day, instead of on the eleven occasions charged in the indictment,

merely demonstrated Doe's predisposition to exaggerate facts,

rather than a predisposition to fabricate events (i.e., the rapes)

out of whole cloth. On the other hand, however, given the level of

prejudice threatened by the Dolinger proffer, it was not

unreasonable for the state courts to determine that Dolinger had

been accorded an adequate opportunity to challenge Doe's bias and

truthfulness in other meaningful ways.

First, whether or not the "kissing incident" constituted

the motive for Doe's alleged revenge is largely immaterial. The

jury was presented with evidence that Dolinger had confronted Doe
6Of course, Confrontation Clause claims are subject to

"harmless error" analysis as well. See Olden, 488 U.S. at 232:

"The correct inquiry is whether, assuming that

the damaging potential of the

cross-examination [or excluded evidence] were

fully realized, a reviewing court might

nonetheless say that the error was harmless

beyond a reasonable doubt. Whether such error

is harmless in a particular case depends upon

a host of factors, all readily accessible to

15

angrily a few days before Doe made the rape accusations, and in

fact had made Doe cry. We think that this evidence, if accepted by

the jury, was itself sufficient to support the defense theory that

Doe had framed Dolinger out of revenge. See, e.g., Stephens, 13

F.3d at 1002 (noting that the defendant adduced evidence that "he

said something to [his victim] that angered her and caused her to

fabricate the attempted rape charge," but trial court properly

excluded further lurid details of the victim's past sexual conduct

"to avoid embarrassing her and subjecting her to possible public

denigration").

Second, as concerns the prior inconsistent statement by

Doe, in the present context we perceive no significant distinction

between Doe's predispositions to exaggerate and to lie, since each

strongly suggests his tendency to speak untruthfully: whether

regarding the occurrence of the rapes or their frequency. Thus, we

conclude that it was not beyond the realm of reason for the

Commonwealth courts to determine that the Dolinger proffer was

largely cumulative.6
reviewing courts. These factors include the

importance of the 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. at 232-33 (citation omitted) (emphasis added).

16

Under section 2254(d)(1), it is immaterial whether we

would assess the Olden factors as the Commonwealth courts have done

in the instant case had we been directly presented with these

issues in a non-habeas context. Of necessity, a balancing test

normally occasions an exercise of the trial court's informed

discretion. See Domaingue v. MacDonald, 978 F. Supp. 53, 58 (D.

Mass. 1997) (upholding discretionary exclusion of evidence of

incest victim's alleged prior sexual promiscuity, given that trial

court otherwise afforded defendant "a reasonable opportunity to

question the witness' veracity and motivation," and to present "a

reasonably complete picture of the witness's bias") (citing United

States v. LaBoy-Delgado, 84 F.3d 22, 28 (1st Cir. 1996)). Thus, it

is sufficient that we are able to conclude that the Commonwealth

courts "identifie[d] the correct governing legal principle from

[the Supreme] Court's decisions [viz., the Olden factors],"

"appl[ied] that principle to the facts of the . . . case," and

reasonably balanced the competing factors. Williams, 529 U.S. at

412-13.
17

AFFIRMED.