Boggs v. CollinsBoggs v. Collins
COUNSEL
ARGUED: Stuart W. Harris, ASSISTANT ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellant. Kort W. Gatterdam, ASSISTANT STATE PUBLIC DEFENDER, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, for Appellee. ON BRIEF: Stuart W. Harris, ASSISTANT ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellant. Kort W. Gatterdam,
OPINION
NATHANIEL R. JONES, Circuit Judge. Respondent-Appellant Terry Collins, Warden of the Warren Correctional Institute in Lebanon, Ohio, appeals the district court‘s grant of Petitioner-Appellee Roger P. Boggs‘s
I.
On May 16, 1988, after a two-day trial in the Adams County, Ohio Court of Common Pleas, a jury convicted Boggs of the rape, kidnaping, and felonious assault of Elizabeth Berman. The court sentenced Boggs to fifteen to twenty-five years’ imprisonment for rape, and eight to fifteen years’ imprisonment for felonious assault, to be served consecutively. Boggs is currently incarcerated at the Warren Correctional Institution in Lebanon, Ohio.
A.
At trial, Berman testified that around eight or nine p.m. on Christmas Eve, 1988, Boggs knocked on her door and asked to use her bathroom. Berman agreed, and after using the bathroom, Boggs approached her and began making sexual advances. She refused, and as his advances became more aggressive, she screamed “about four times really loud.” J.A. at 130. According to Berman, Boggs then hit her on the side of the head, put a pillow over her face, and threatened to kill
Dr. Randall Volk, the emergency room doctor who examined Berman that evening, testified that she suffered several injuries consistent with the attack she had described. Although he did not find any injuries to the vulva or the vagina, he found a small rectal and anterior anal laceration that he determined to have been caused very recently. J.A. at 193-94. He also described bruises and contusions above her left eye, an episclera hematoma in her left eye consistent with a “striking blow,” and an abrasion on her chest.
Other witnesses for the prosecution testified that they had seen Boggs in an apartment complex (Eddie‘s Apartments) adjacent to Berman‘s complex (Glendale Apartments) on the evening in question. Cathy Jordan testified that she saw Boggs four times that evening. Boggs entered her family‘s residence once and left soon thereafter. He knocked on her door two additional times, asking to be let in. He appeared drunk, staggering and slurring his speech. Jordan testified that his presence and tone, although not “all that forceful,” scared her. J.A. at 209. On the fourth occasion, Jordan saw Boggs peeking in the window of an apartment across the parking lot. Eva White next testified that she, too, had
Boggs‘s cross-examination of Berman adduced that she was a past drug user who had a long history of mental illness. She further acknowledged that, for many years, she had undergone psychiatric treatment for schizophrenia-like conditions and depression, and that she had experienced “psychotic episodes” in which she would “lose touch with what‘s real and what‘s not real.” J.A. at 148; State v. Boggs, 624 N.E.2d 204, 206 (Ohio Ct. App. 1993). She had previously been hospitalized seven times for these conditions, the last time being six or seven years before the trial (around 1983). She had been treated for those conditions and drug abuse ever since, and was in psychiatric therapy at the time of the trial.
On cross-examination, Berman also described her attacker‘s appearance. He had two tattoos—one on his shoulder and one on his back. He had “[d]ark brown hair and [was] a lot bigger than me.” J.A. at 151. She did not remember how he was dressed, his facial hair, or how he wore his hair, stating that she does not generally notice whether a man is bearded or clean shaven. She testified that her attacker did not smell of alcohol, and did not appear to be intoxicated. She also reiterated that she had screamed loudly prior to the attack, and acknowledged that her apartment walls were thin.
Testifying in his own defense, Boggs stated that he had been in Berman‘s apartment several times prior to Christmas Eve, 1988, and that he had shown her his tattoos then. He also stated that he had stopped by Berman‘s residence on the day in question: “I stopped [by] earlier that morning, I was
Neither hair (other than Berman‘s) nor semen was found on Berman‘s person or clothing, or anywhere in her apartment.4 At trial, Boggs showed the jury that he had fourteen large tattoos covering his entire upper torso. Exhibits introduced during his testimony also showed that Boggs had a full beard at the time of the alleged attack. Several of Berman‘s neighbors testified that on the night in question, they did not hear screams from her apartment. Several witnesses also
B.
This appeal centers on the trial court‘s decision to limit Boggs‘s cross-examination of Berman. Specifically, Boggs sought to question Berman about a false accusation of rape that she allegedly made against another man approximately one month before she accused Boggs of rape. Boggs also sought to introduce the testimony of two witnesses, Wilma Copas, the apartment manager, and Rick Yazell, another tenant, concerning the prior false accusation. According to Boggs, Copas would have testified that Berman told her that she had been raped by Yazell, and Yazell would have testified that the accusation was untrue. The trial court, however, prohibited all questioning concerning the alleged accusation. The dialogue at trial was as follows:
[Boggs‘s counsel]: Miss Berman, have you ever accused anybody else of having raped you in the past?
[Prosecutor]: Objection, your Honor.
The Court: Sustained
. . .
[Boggs‘s counsel]: Your honor, I have testimony to present that she told Mrs. Copas that Rick Yazell raped her approximately a month before this time and Rick Yazell will testify that he did not. [Prosecutor]: So what?
[Boggs‘s counsel]: Well, she‘s made it up again, that‘s what I want to find out if she‘s made up all of this.
The Court: The only thing would be the credibility aspect and yet we‘re going right back in the back door.
[Boggs‘s counsel]: I‘m not asking about her sexual activity with other people. All I‘m asking is if she ever accused someone else before.
[The court sustained the objection]
J.A. at 161-62.
Later, before Boggs began direct examination of Copas, the State requested that the court preclude any questions about the alleged prior false accusation. Boggs‘s counsel responded that “if she‘s previously cried ‘wolf,’ I think that‘s pertinent. . . . [Berman] informed this woman that somebody had raped her about a month earlier, and there was nothing happened.” J.A. at 241. The court agreed with the State, and barred examination on this subject.
C.
After the jury convicted Boggs, Boggs raised six assignments of error on appeal, including that the trial court improperly restricted cross-examination on the alleged prior false accusation. On May 29, 1991, Ohio‘s Fourth District Court of Appeals reversed Boggs‘s conviction based on the prior false accusation issue. State v. Boggs, No. CA 494, 1991 WL 13735 (Ohio Ct. App. 1991) Assuming that the trial court had precluded the cross-examination pursuant to Ohio‘s rape shield law,
The Ohio Supreme Court agreed with the court of appeals that false accusations of rape where no sexual activity is involved do not fall within Ohio‘s rape shield statute. See State v. Boggs, 588 N.E.2d 813, 816 (Ohio 1992). Rather, cross-examination of a rape victim regarding prior accusations of rape is governed by
[I]f defense counsel inquires of an alleged rape victim as to whether she has made any prior false accusations of rape, and the victim answers no, the trial court would have the discretion to determine whether and to what extent defense counsel can proceed with cross-examination. However, if the alleged victim answers in the affirmative, the trial court would have to conduct an in camera hearing to determine whether sexual activity had been involved. If the trial court determined that the accusations were entirely false (that is, that no sexual activity had been involved) the trial
court would then be permitted to exercise its discretion in determining whether to permit defense counsel to proceed with cross-examination of the alleged victim. We therefore hold that where an alleged rape victim admits on cross-examination that she has made a prior false rape accusation, the trial judge shall conduct an in camera hearing to ascertain whether sexual activity was involved and, as a result, would be prohibited by R.C. 2907.02(D) , or whether the accusation was totally unfounded and therefore could be inquired into on cross-examination pursuant toEvid.R. 608(B) .
Id. at 816-17. The court also established a per se rule that prior false allegations of sexual assault “are an entirely collateral matter,” and therefore “may not be proved by extrinsic evidence.” Id. at 817. Finally, the court explained that this approach did not violate the Confrontation Clause. See id. (“The rights to confront witnesses and to defend are not absolute and may bow to accommodate other legitimate interests in the criminal process.“). Accordingly, the court reversed and remanded Boggs‘s case to the trial court to conduct an in camera hearing. See id. at 818.
On May 11, 1992, the trial court held a hearing on Berman‘s alleged prior false accusation of rape. At the hearing, Berman denied having made any such accusation. J.A. at 549-50. When Boggs sought to introduce the contradictory testimony of Yazell and Copas, the trial court refused to hear it, although it allowed Boggs‘s attorney to summarize their accounts. J.A. at 552-53 (proffering that Copas stated that Berman told her “three to five weeks prior to the allegations against Mr. Boggs . . . that Rick Yazell had raped her,” and that Yazell stated that he did not have a sexual relationship with Berman in the four months prior to the allegations against Boggs). Crediting Berman‘s testimony, the court found no reason to reopen the case and denied Boggs‘s request for a new trial. J.A. at 557.
On May 6, 1993, the Ohio Court of Appeals again reversed the trial court, concluding that Boggs should have been
On August 3, 1993, after having conducted an in camera hearing in which Copas and Yazell testified,5 the trial court denied Boggs‘s request for a new trial and reaffirmed his convictions. It concluded that Berman had shown by clear and convincing evidence that she had not made any prior accusations of rape. J.A. at 990-91. Boggs did not appeal this decision. On November 24, 1993, the Ohio Supreme Court declined to hear the constitutional issue on appeal for a second time. See State v. Boggs, 622 N.E.2d 657 (Ohio Sup. Ct. 1993).
On March 17, 1994, Boggs brought this habeas corpus action pursuant to
Following the remand, the magistrate court issued a report and recommendation that the writ be granted. The court found that the trial court‘s preclusion of cross-examination on the alleged prior accusation violated Boggs‘s Confrontation Clause rights and his right to present a defense. “Based on the present record, it appears the restriction prohibiting defense counsel from cross-examining the victim was unreasonable.” J.A. at 1456. Moreover, the magistrate court concluded that the evidence Boggs sought to elicit through cross-examination was highly relevant, in part because of the paucity of physical evidence supporting Berman‘s account. “[T]he restrictions imposed totally precluded him from introducing evidence which . . . could have undermined the victim‘s credibility and exposed her motives and state-of-mind as related directly to the rape charge at issue.” J.A. at 1463. The court further concluded that the error was not harmless. The district court rejected each of the State‘s objections, and adopted the magistrate court‘s report and recommendation.
II.
This court reviews de novo a district court‘s grant of a writ of habeas corpus. See Barker v. Yukins, 199 F.3d 863, 870 (6th Cir. 1999). We review the district court‘s findings of fact for clear error. See McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996). Primary or historical facts found by state courts are “presumed correct and are rebuttable only by clear
III.
A federal court may issue a writ of habeas corpus to correct a state trial if the state proceeding was rendered fundamentally unfair by a violation of the Constitution, the laws, or the treaties of the United States. See
1.
The Sixth Amendment guarantees the criminal defendant the right “to be confronted with the witnesses against him.”
Thus, although Davis trumpets the vital role cross-examination can play in casting doubt on a witness‘s credibility, not all conceivable methods of undermining credibility are constitutionally guaranteed. In particular, the Davis Court distinguished between a “general attack” on the credibility of a witness—in which the cross-examiner “intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony“—and a more particular attack on credibility “directed toward revealing possible biases, prejudices, or ulterior motives as they may relate directly to issues or personalities in the case at hand.” Davis, 415 U.S. at 316. The Court, concluding that “[t]he partiality of a witness . . . is always relevant as discrediting the witness and affecting the weight of the testimony,” found this latter type of attack to be part of the constitutionally protected right of cross-examination. Id. Faced with a situation where a trial court barred cross-examination bearing on a witness‘s bias and motive to testify,6 the Court
In Van Arsdall, the Court emphasized that Davis and prior decisions recognized that “‘the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross examination.‘” 475 U.S. at 678-79 (quoting Davis, 415 U.S. at 316-17). It then elaborated that “a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” Id. at 680 (emphasis added). The Court therefore criticized the trial court‘s refusal to allow Van Arsdall to cross-examine a key prosecution witness about the fact that charges of public drunkenness had been dismissed in exchange for his testimony. See id. at 679. This limitation foreclosed investigation into an event “that a jury might reasonably have found [to have] furnished the witness a motive for favoring the prosecution in his testimony,” and therefore violated the Confrontation Clause. Id. Courts after Davis and Van Arsdall have adhered to the distinction drawn by those cases and by Justice Stewart in his concurrence—that cross-examination as to bias, motive or prejudice is constitutionally protected, but cross-examination as to general credibility is not. See Olden v. Kentucky, 488 U.S. 227, 232 (1988) (finding error in a trial court‘s refusal to allow cross-examination on a rape victim‘s extramarital relationship when that relationship would have shown the victim‘s bias or motivation); United States v. Abel, 469 U.S. 45, 56 (1984) (permitting impeachment evidence that a witness was a member of the Aryan Nation, which showed his potential
When faced with alleged prior false accusations of rape, federal courts have adhered to the fine line drawn in Davis and Van Arsdall, finding cross-examination constitutionally compelled when it reveals witness bias or prejudice, but not when it is aimed solely to diminish a witness‘s general credibility. In Hughes v. Raines, 641 F.2d 790 (9th Cir. 1981), the trial court refused to allow defense counsel to cross-examine an alleged rape victim about an alleged prior false accusation of rape. The Ninth Circuit relied on the distinction drawn in Davis “between an attack on the general credibility of the witness and a more particular attack on credibility” through revealing biases, prejudices or ulterior motives. Id. at 793. Looking closely at the defendant‘s purpose for introducing the testimony, the Court found that the defense was simply asking the jury to make an inference “that because the complaining witness made a false accusation of attempted rape on a prior occasion, her accusation in this case was false.” Id. In other words, the intended cross-examination “was not to establish bias against the defendant or for the prosecution; it merely would have been to attack the general credibility of the witness on the basis of an unrelated prior incident.” Id. Under Davis, the Hughes Court concluded, limiting cross-examination for that purpose did not violate the Confrontation Clause. See id. at 793.
Similarly, in United States v. Bartlett, 856 F.2d 1071 (8th Cir. 1988), a rape defendant challenged as unconstitutional the district court‘s refusal to admit evidence of a victim‘s alleged prior false accusation of rape. Like the Ninth Circuit, the Eighth Circuit noted the distinction between cross-
Although not directly addressing the Confrontation Clause, this Court adhered to the logic of Hughes and Bartlett in United States v. Cardinal, 782 F.2d 34 (6th Cir. 1986). Cardinal was convicted for rape on an Indian reservation; on appeal, he challenged the district court‘s refusal, pursuant to
If a trial court has curtailed cross-examination from which a jury could have assessed a witness‘s bias, prejudice or motive to testify, a court must take two additional steps. First, a reviewing court must assess whether the jury had enough information, despite the limits placed on otherwise permitted cross-examination, to assess the defense theory of bias or improper motive. See Dorsey, 872 F.2d at 167; Stevens v. Bordenkircher, 746 F.2d 342, 347 (6th Cir. 1984). Second, if this is not the case, and there is indeed a denial or significant diminution of cross-examination that implicates the Confrontation Clause, the Court applies a balancing test, weighing the violation against the competing interests at stake. See Chambers, 410 U.S. at 295. In Davis, the Court found that the state‘s interest in protecting the anonymity of a juvenile offender was not comparable to the “paramount” interest in the right to show the bias of an adverse witness. Id. at 319. In Michigan v. Lucas, 500 U.S. 145 (1991), on the other hand, the Court upheld a Michigan rape-shield statute‘s notice-and-hearing requirement that operated to bar cross-examination in the case in question. Although the Court concluded that the rule could diminish a defendant‘s ability to confront adverse witnesses, it found that this effect was outweighed by countervailing state interests in protecting rape victims from surprise, harassment and unnecessary invasions of privacy. See id. at 149-50.
Given these precedents, we must reject Boggs‘s primary argument because it improperly blurs the precise distinctions drawn in Confrontation Clause jurisprudence. Not having articulated an argument sounding in motive, bias or prejudice, Boggs instead seeks to elevate his purpose—attacking Berman‘s general credibility—into a constitutionally mandated right. He argues that because Berman‘s credibility is central to his case, the Sixth Amendment requires that he be allowed to cross-examine her on an incident bearing on that credibility. Because this contention goes beyond the clear sweep of the Confrontation Clause traced by Davis and Van Arsdall, we cannot accept it as a ground for habeas relief. Nor can we accept the reasoning of the lower courts in granting the writ on this ground.
The record and Boggs‘s arguments on appeal show that, just as in Hughes and Bartlett, Boggs‘s purpose in introducing the alleged prior false accusation was to attack Berman‘s general credibility. Both at trial and on appeal, Boggs essentially contended that the evidence was crucial because if Berman lied or fabricated once, she would do so again. At the sidebar during the trial, Boggs‘s counsel explained: “[S]he‘s made it up again[.] I want to find out if she‘s made up all of this.” J.A. at 161. In his brief before this Court, Boggs repeatedly underscores the importance of the prior accusation in diminishing Berman‘s general credibility. See Boggs‘s Br. at 13 (“the defense was simply seeking to give the jury additional evidence with which to weigh the alleged victim‘s credibility.“); id. at 16 (“[T]he key issue in the instant case was the accuser‘s credibility. To not allow inquiry into her prior instances of untruthfulness is to render the federal constitutional guarantee to confront and cross-examine meaningless.“); id. at 26 (“The jury should be able to decide what weight a prior false accusation has on the alleged victim‘s credibility, not the trial judge.“). Thus, Boggs‘s argument echoes the Davis Court‘s definition of a general attack on credibility—when a party “intends to afford the jury a basis to infer that the witness’ character is such that he
But this emphasis on Berman‘s general credibility overlooks the fundamental distinction drawn in Davis and Van Arsdall. No matter how central an accuser‘s credibility is to a case—indeed, her credibility will almost always be the cornerstone of a rape or sexual assault case, even if there is physical evidence—the Constitution does not require that a defendant be given the opportunity to wage a general attack on credibility by pointing to individual instances of past conduct. In other words, Boggs‘s argument that credibility is crucial to this case, and that therefore any evidence bearing on that credibility must be allowed in, simply does not reflect Sixth Amendment caselaw. Under Davis and its progeny, the Sixth Amendment only compels cross-examination if that examination aims to reveal the motive, bias or prejudice of a witness/accuser. Because he failed to articulate such an argument either at trial or on appeal, and because there is not a plausible theory of motive or bias apparent from the trial record (including from the in camera hearings) or from Boggs‘s arguments on appeal, Boggs has not demonstrated a Confrontation Clause infraction.7
[D]efense counsel was not attempting to mount a general attack on the victim‘s credibility but rather more particularly to show that the victim . . . fabricated the rape charges against petitioner. . . . [T]he restriction on cross-examination prevented petitioner from developing facts which more particularly could have undermined the victim‘s credibility and expose her motives and state-of-mind as related directly to the rape charge at hand. . . . [T]he evidence defense counsel sought to elicit on cross-examination was highly relevant to the issues of the victim‘s credibility and her motives or state-of-mind in bringing the rape charge against the petitioner.
J.A. at 1455-56. See also Boggs‘s Br. at 13 (repeating the magistrate court‘s language that the jury “was entitled to consider her motives or state of mind in bringing the rape charges against Mr. Boggs“)(emphasis added). But despite this semantic distinction, we search in vain for the magistrate court or Boggs to have provided an explanation of Berman‘s motive to testify falsely.
This silence as to a theory of motive sharply differentiates this case from those where courts have found Confrontation Clause violations. As explained supra, an articulated theory that a witness had a motive to fabricate lay at the heart of the Davis and Van Arsdall defenses. Similarly, in Olden, the Supreme Court found constitutionally improper the court‘s refusal to allow testimony of an accuser‘s relationship with
Finally, both Boggs and the magistrate court indicate that the intended cross-examination went to Berman‘s “state of mind” in bringing the rape charges against Boggs, and was therefore compelled by the Confrontation Clause. See J.A. at 1456 (stating that the evidence defense counsel sought to elicit on cross-examination “was highly relevant to the issues of the victim‘s credibility and her motives or state-of-mind in bringing the rape charge“)(emphasis added); Boggs‘s Br. at 13 (echoing the magistrate court that the jury “was entitled to consider her motives or state of mind in bringing the rape charges against Mr. Boggs“)(emphasis added). It is not clear to us how this unspecified “state of mind” justification fits within the constitutional analysis required by Davis and its progeny. However, both at trial and on appeal, Boggs pointed to Berman‘s history of mental illness to cast doubt on the reliability of her accusations against Boggs. To the extent that this reference to Berman‘s “state of mind” is an extension of that argument, we do not find a Confrontation Clause violation.
While mental illness can indeed be relevant to a witness‘s credibility, see United States v. Butt, 955 F.2d 77, 82 (1st Cir. 1992); United States v. Lindstrom, 698 F.2d 1154, 1161-64 (11th Cir. 1983), courts hold that the decision of whether or not to allow in evidence of a witness‘s mental illness falls within the broad discretion of trial courts as they balance possible prejudice versus probative value. See, e.g., United States v. Moore, 923 F.2d 910, 913 (1st Cir. 1991) (stating
Unlike cases such as Lindstrom and Greene, the trial court below granted Boggs considerable leeway in cross-examining Berman on her history of mental illness. Outside of the presence of the jury, the trial court heard Berman describe her past treatment for mental illness and substance abuse, concluding that “it would be certainly unfair under the circumstances to not permit the defendant to at least inquire as to whether or not the doctor at times felt like she was out of touch with reality.” J.A. at 144-45. Therefore, over the objection of the prosecutor, the court permitted Boggs to elicit from both Berman and her mother that doctors had previously found her to have suffered psychotic episodes in which she had lost touch with reality. J.A. at 148. The defense also elicited that Berman had been hospitalized for mental illness and substance abuse on numerous occasions in the past, with her last hospitalization having been approximately six or seven years before the events in question. Berman also testified under cross-examination that she had been undergoing treatment for substance abuse and mental health in the years since that hospitalization, although both she and her mother testified that her condition had improved in recent years. J.A. at 165. The witnesses spoke ambiguously about the specific mental infirmity Berman suffered, noting that she was “sometimes” schizophrenic or showed “schizophrenia-like” tendencies, and had suffered depression, psychotic episodes, and nightmares. J.A. at 148, 177. Boggs also elicited that she received social security benefits due to her mental illness. This wide-open inquiry into Berman‘s mental health starkly contrasts with cases such as Lindstrom, where the jury “was denied any evidence on whether [a] key witness was a schizophrenic, what schizophrenia means and whether it affects one‘s perceptions of external reality,” 698 F.2d at 1168, and Greene, where the defense was “absolute[ly] prohibit[ed]” from inquiring into a key witness‘s recent history of mental instability. 634 F.2d at 276. Nor did the court at any point limit other evidence that may have further
In Dorsey, when faced with a similar situation where considerable cross-examination had been permitted as to a government witness‘s prior mental treatment, this Court held that when “it is merely the extent of cross-examination that is limited, the trial judge retains a much wider latitude of discretion.” Dorsey, 872 F.2d at 167. “Once cross examination reveals sufficient information to appraise the witnesses’ veracity, confrontation demands are satisfied.” Id. Given the considerable cross-examination of Berman‘s past mental condition and treatment, we believe that the jury had sufficient information to assess Boggs‘s argument that her history of mental illness cast doubt on her accusation against Boggs, satisfying the Confrontation Clause.
IV.
Boggs also argues that because he was precluded from introducing crucial evidence in his favor, the proceedings below deprived him of his constitutional right to present a full defense. We disagree.
The right to present a complete and meaningful defense emerges from the Sixth Amendment‘s Confrontation Clause and the Due Process Clause of the Fourteenth Amendment. See Crane v. Kentucky, 476 U.S. 683, 690 (1986); California v. Trombetta, 467 U.S. 479, 485 (1984). In circumstances where procedural rules or trial court decisions have excluded evidence in a way that denies a defendant a fair trial, the Supreme Court has found a violation of that defendant‘s right to present a defense. See Crane, 476 U.S. at 690 (finding that the trial court violated Crane‘s right to present a defense when it excluded evidence bearing on the credibility of his confession); Chambers, 410 U.S. at 302 (invalidating a state‘s hearsay rule because it violated a defendant‘s right to present witnesses in his own defense). At the same time, finding that
Given these standards, we do not find that the exclusion of the testimony regarding the prior rape accusation implicated Boggs‘s constitutional right to present a defense. First, this evidence was not so highly probative of the charges against Boggs so as to be constitutionally required. Boggs was asking the jury to infer that the alleged prior incident meant that Berman was also accusing Boggs falsely. But our rules of evidence generally frown upon using evidence of past “wrongs” or “acts” to show “the character of a person in order to show action in conformity therewith” on a later occasion. See
Moreover, on close examination, the prior accusation characterized by Boggs differs in important ways from Berman‘s account of the attack by Boggs. According to Boggs, Berman simply fabricated an accusation against Yazell out of whole cloth. This, Boggs suggests, was consistent with Berman‘s history of mental illness and past “delusions and hallucinations.” Boggs‘s Br. at 12-13. In other words, she simply “made up” the event, “cry[ing] Wolf.” In contrast, the physical evidence strongly supports Berman‘s claim that she suffered from a violent physical and sexual attack on Christmas Eve, 1994. Dr. Volk found that an anterior rectal and anal laceration had occurred “very recently” and was still “freshly bleeding,” J.A. at 193-94, and described bruises and contusions above her left eye, an episclera hematoma in her left eye consistent with a striking blow, and an abrasion on her chest that appeared to result from “something [] scratch[ing] down her neck and chest.” J.A. at 194. He further stated that these injuries were consistent with the violent physical assault and rape Berman had described. Police also found blood stains on a bed sheet and on Berman‘s robe. J.A. at 295-96, 365. This medical testimony went unchallenged by Boggs, and Boggs failed to adduce testimony as to other possible sources of such injuries. Given these very real injuries, Boggs‘s allegation that Berman wholly fabricated on a previous occasion would thus have carried only marginal probative value as to whether she accurately identified Boggs as the perpetrator of the attack that she clearly endured. In other words, Boggs‘s suggestion at trial that the prior alleged fabrication shows “she‘s made it up again” and that “she‘s made up all of this” simply rings
Finally, the exclusion of the particular evidence did not trample Boggs‘s right to present a defense given the considerable latitude the trial court granted Boggs in pursuing his theory that Berman fabricated the rape charge due in part to her history of mental illness and drug use. As explained supra, over the government‘s objections, the trial court allowed Boggs to cross-examine Berman on her history of mental illness, including the fact that her doctors had found her to lose touch with reality, that she remained in therapy with a psychiatrist, and that she had been treated for substance and drug abuse. Boggs also questioned Berman‘s mother extensively about her daughter‘s history of mental illness and substance abuse. In its closing argument, Boggs‘s counsel reminded the jury of this testimony:
Liz Berman admittedly testified that the last fourteen years she‘s suffering from mental illness. She receives [social security] because she is mentally ill. She‘s abused drugs and has received treatment for that. That particularly she‘s had schizophrenia and psychotic episodes; lost touch with reality. She‘s told the neighbors about two months ago that she has had nightmares. Now that doesn‘t make Liz Berman‘s a bad person. But it does put some question on her ability to remember how all of this happened and determined [sic] whether they were real or unreal.
J.A. at 320.
V.
While Boggs sought to cross-examine Berman on an alleged false accusation of rape, he desired to do so to attack further her general credibility. Under Davis and Van Arsdall, that purpose alone does not implicate the Confrontation Clause. Nor, on the facts of this case, did the restriction trammel Boggs‘s constitutional right to mount a full and meaningful defense. For these reasons, we REVERSE the