Wiggins v. Boyette , 635 F.3d 116 ( 2011 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RAE LAMAR WIGGINS, a/k/a Rae 
Carruth,
Petitioner-Appellant,
v.  No. 09-6484
BONNIE BOYETTE,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Senior District Judge.
(3:05-cv-00346-GCM)
Argued: October 26, 2010
Decided: February 15, 2011
Before WILKINSON and MOTZ, Circuit Judges,
and Damon J. KEITH, Senior Circuit Judge of the
United States Court of Appeals for the Sixth Circuit,
sitting by designation.
Affirmed by published opinion. Judge Motz wrote the opin-
ion, in which Judge Wilkinson and Senior Judge Keith joined.
COUNSEL
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF,
WIDENHOUSE & FIALKO, Chapel Hill, North Carolina, for
2 WIGGINS v. BOYETTE
Appellant. Mary Carla Hollis, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: Roy Cooper, Attorney General, Clar-
ence Joe DelForge, III, Assistant Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
After a lengthy trial, a North Carolina jury convicted Rae
Lamar Wiggins, a.k.a. Rae Carruth ("Carruth"),1 of conspiracy
to commit the murder of his pregnant girlfriend, Cherica
Adams, use of an instrument to destroy their unborn child,
and discharge of a firearm into occupied property. Carruth
failed to obtain reversal on appeal, see State v. Wiggins, 584
S.E.2d 303 (N.C. Ct. App. 2003), disc. rev. denied, 588
S.E.2d 472 (N.C. 2003), cert. denied, 541 U.S. 910 (2004), or
any post-conviction relief in state court. He then filed this
petition for a writ of habeas corpus. Carruth maintains that the
state trial court’s decision to admit evidence of certain state-
ments made by Ms. Adams before she died mandates habeas
relief. For the reasons that follow, we affirm the district
court’s denial of the writ.
I.
We first set forth the facts as recounted by the North Caro-
lina Court of Appeals, Wiggins, 584 S.E.2d 303, then briefly
summarize the procedural history of the case.
1
Because all witnesses referred to the defendant as Carruth, we do so in
this opinion.
WIGGINS v. BOYETTE 3
A.
On the evening of November 15, 1999, Carruth and Ms.
Adams—then twenty-four years old and eight-months preg-
nant with Carruth’s child—went to a movie together at a the-
ater in Charlotte, North Carolina. After the movie, the two
rode together to Carruth’s house to pick up Ms. Adams’s car.
At his house, Carruth used his cell phone to call Michael Ken-
nedy and told Kennedy that he and Ms. Adams were about to
leave. Carruth and Ms. Adams then drove separate cars
toward Ms. Adams’s home.
The murder unfolded on Rea Road, a two-lane residential
street. Carruth led in his car, and Ms. Adams followed in hers.
Kennedy, accompanied by passengers Stanley Abraham in the
front seat and Van Brett Watkins in the backseat, followed
Ms. Adams in a rental car. As the three cars drove down the
street, Carruth slowed or stopped his large sport utility vehicle
in front of Ms. Adams’s car, forcing her to slow or stop her
car. Kennedy then drove his rental car beside Ms. Adams’s
car, and Watkins fired five shots into her car, wounding her
once in the neck and three times in the back. Carruth’s and
Kennedy’s vehicles fled the scene in different directions.
The shots did not kill Ms. Adams immediately. Rather, at
12:31 a.m., she called 911 from her cell phone and spoke to
an emergency dispatcher for over twelve minutes until an
ambulance arrived. During that call, Ms. Adams told the 911
dispatcher that: (1) she was eight months pregnant and had
been shot while driving her car; (2) she had been following
"her baby’s daddy," Rae Carruth, on Rea Road; (3) Carruth
had called somebody from his house before they left; (4) Car-
ruth slowed his car down in front of her; (5) another car then
pulled up beside Ms. Adams’s car; (6) somebody from that
other car shot her; and (7) after she was shot, Carruth "just
left" the scene of the shooting.
At around 12:43 a.m., Mecklenburg Police Officer Peter
Grant arrived on the scene. Officer Grant conducted an on-
4 WIGGINS v. BOYETTE
scene interview with Ms. Adams in which she identified Car-
ruth as the driver of the vehicle that slowed in front of her. At
1:10 a.m., an ambulance delivered Ms. Adams to the Caroli-
nas Medical Center. There, in an interview with Officer
Grant, Ms. Adams gave a chronology of the events, explain-
ing that: (1) she and Carruth went to the movies together and
returned to Carruth’s house to retrieve her car; (2) she fol-
lowed Carruth down Rea Road; (3) Carruth came to a stop;
and (4) she couldn’t go around Carruth on the two-lane Rea
Road. When Officer Grant asked Ms. Adams if "your boy-
friend [did] this to you," she "nodded her head ‘[y]es.’"
At 4 a.m., doctors moved Ms. Adams to a trauma intensive
care unit. At 7 a.m., Ms. Adams had an endotracheal tube
inserted into her throat. Traci Willard, the attending nurse at
the time, asked Ms. Adams if she remembered what had tran-
spired. Ms. Adams nodded and motioned the nurse to bring
her a pen and paper. In her own handwriting, Ms. Adams
again described that night’s events, including Carruth’s
actions. Soon after communicating with Nurse Willard, Ms.
Adams went into a coma until she died a month later on
December 14, 1999. Her baby son survived but suffered brain
damage.
On November 25, 1999, the State arrested Carruth and
charged him with offenses related to the shooting; Carruth
posted bond and was released on bail on the condition that he
remain in the city. When Carruth learned of Ms. Adams’s
death on the afternoon of December 14, 1999, however, he
fled. The State then issued a warrant for Carruth’s arrest on
murder charges. The FBI found Carruth the next day in the
trunk of a friend’s car in Tennessee.
B.
The State charged Carruth with first degree murder of Ms.
Adams, conspiracy to commit that murder, discharging a fire-
arm into occupied property, and using an instrument to
WIGGINS v. BOYETTE 5
destroy an unborn child. The State also charged co-
conspirators Kennedy, Watkins, and Abraham with crimes
related to the murder of Ms. Adams. Carruth was tried alone
before a death-qualified jury. The trial continued over six
weeks and consumed more than twenty-five trial days.
In its case in chief, in addition to Ms. Adams’s statements
detailed above, the State offered numerous exhibits and the
testimony of over twenty witnesses, including co-conspirator
Michael Kennedy, to establish Carruth’s orchestration of Ms.
Adams’s murder. Through cross-examination, the defense
attempted to establish that Ms. Adams was shot because of
Carruth’s coconspirators’ rage when he refused to finance a
drug deal. The defense offered forty-five witnesses who testi-
fied that Carruth had good character and a gentle nature, that
he was looking forward to the birth of his and Ms. Adams’s
child, and that his bright career as a professional football
player with the Carolina Panthers gave him the means to pay
child support. In rebuttal, the State offered the testimony of
two of Carruth’s former girlfriends. Both testified as to Car-
ruth’s anger when each of them became pregnant with Car-
ruth’s child, his unwillingness to pay child support, and his
threats of violence to them.
After two and a half days of deliberations, the jury indi-
cated in a note to the trial judge that it was divided on all
charges and wished instruction. In model language, not chal-
lenged by Carruth (and less coercive than that approved in
Allen v. United States, 164 U.S. 492 (1896)), the judge
instructed the jury to deliberate further. After another day, it
returned its verdict—acquitting Carruth of first degree murder
but finding him guilty of conspiracy to commit murder, dis-
charge of a firearm into occupied property, and use of an
instrument to destroy an unborn child. The court sentenced
Carruth to 245 months imprisonment for the conspiracy con-
viction plus two consecutive terms of 31 to 47 months for the
remaining two convictions.
6 WIGGINS v. BOYETTE
On appeal, the North Carolina Court of Appeals found error
in the trial court’s decision to admit into evidence Ms.
Adams’s handwritten notes to Nurse Willard. Wiggins, 584
S.E.2d at 308-09. But, "[g]iven the nature and extent of the
State’s evidence implicating defendant’s involvement in the
shooting," the state appellate court concluded that such error
was harmless and upheld the conviction. Id. at 310. The State
Supreme Court denied discretionary review and the Supreme
Court of the United States denied certiorari. See Wiggins, 588
S.E.2d 472, cert. denied 541 U.S. 910.
Carruth filed a Motion for Appropriate Relief (MAR) in
state court, claiming that the trial court’s admission of Ms.
Adams’s statements to Officer Grant (in addition to those to
Nurse Willard) violated his Sixth Amendment Confrontation
Clause rights. The MAR court agreed, finding that the trial
court had erroneously admitted all three of these statements in
violation of Carruth’s constitutional rights under the Confron-
tation Clause. But the MAR court held that such violations
were "harmless beyond a reasonable doubt" and so upheld the
conviction. The North Carolina Court of Appeals denied Car-
ruth’s request for review.
Carruth then filed this habeas petition in federal court,
reprising, among other claims, the Confrontation Clause chal-
lenge. The district court denied habeas relief but granted a
certificate of appealability as to the Confrontation Clause
claim. Carruth asked us to expand the certificate of appeala-
bility to consider whether Blakely v. Washington, 542 U.S.
296 (2004), should be applied retroactively to his sentence;
we denied that motion. Accordingly, the sole issue before us
is whether the Confrontation Clause error requires the grant
of habeas relief.
II.
We initially recognize the extent and limit of the asserted
constitutional error at issue here. On one hand, Carruth does
WIGGINS v. BOYETTE 7
not contend before us that admission of the 911 call (both
playing the recording and publishing the transcript) violated
his Sixth Amendment Confrontation Clause rights. See Davis
v. Washington, 547 U.S. 813 (2006). On the other hand, the
State does not contend before us that admission of Ms.
Adams’s two statements to Officer Grant—one at the crime
scene and one at the hospital—and her handwritten notes to
Nurse Willard did not violate Carruth’s Sixth Amendment
rights. See Crawford v. Washington, 541 U.S. 36 (2004).
Because it makes no difference to our resolution of this case,
we assume without deciding that Carruth and the State accu-
rately assess the constitutionality of Ms. Adams’s statements,
i.e., that admission of her statements to Officer Grant and
Nurse Willard amounted to constitutional error but admission
of the 911 call did not.
Of course, as Carruth correctly recognizes, such error does
not automatically entitle a petitioner to a grant of a writ of
habeas corpus. Instead, a habeas court reviews such error for
harmlessness. See Gutierrez v. McGinnis, 389 F.3d 300, 302-
03 (2d Cir. 2004) (Sotomayor, J.); see also Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986). The Supreme Court
explained in Brecht v. Abrahamson that, in determining the
harmlessness of a state court’s constitutional error in a crimi-
nal trial, a federal habeas court asks whether the error had a
"substantial and injurious effect or influence in determining
the jury’s verdict." 507 U.S. 619, 637 (1993) (quoting Kot-
teakos v. United States, 328 U.S. 750, 776 (1946)).
Courts have recently disagreed as to whether enactment of
the Antiterrorism and Effective Death Penalty Act
("AEDPA"), 28 U.S.C. § 2254(d), changes that standard.
Some courts have concluded that AEDPA requires a federal
habeas court to apply both Brecht and the deferential standard
of review contained in AEDPA to a state court’s harmless
error determination; others have held that the Brecht
harmless-error standard alone governs habeas review. Com-
pare Johnson v. Acevedo, 572 F.3d 398 (7th Cir. 2009) with
8 WIGGINS v. BOYETTE
Ruelas v. Wolfenbarger, 580 F.3d 403 (6th Cir. 2009). We
have recently held that, in light of Fry v. Pliler, 551 U.S. 112,
120 (2007), even post-AEDPA, a federal habeas court need
only apply the Brecht standard to evaluate the harmlessness
of constitutional error in a state trial. See Bauberger v.
Haynes, ___ F.3d ___, No. 09-8111, at 9 (4th Cir. 2011).
Carruth vigorously contends that the Crawford error in his
case meets the Brecht standard. Indeed, he contends that the
three improperly admitted statements (which consumed less
than a day of this lengthy trial, in which the jury properly con-
sidered Ms. Adams’s 911 call and evidence of numerous
admissions by Carruth) constitute the "centerpiece of the
state’s case." Appellant’s Br. at 18. According to Carruth, the
state’s "primary evidence included and flowed from" the
improperly admitted evidence. Id. at 21. Accordingly, Carruth
maintains that the State "cannot carry its burden of proving
that" the decision to admit the challenged statements "did not
have a substantial and injurious" effect on the jury’s verdict.
Appellant’s Br. at 33 (emphasis added); see also id. at 39, 41.
We note at the outset that Carruth misstates the governing
standard of review. The Supreme Court has "deliberately"
refused to "phrase" the Brecht standard "in terms of ‘burden
of proof.’" O’Neal v. McAninch, 513 U.S. 432, 436 (1995).
Instead, a court must ask, "Do [we], the judge[s], think that
the error substantially influenced the jury’s decision?" Id. If
a court finds itself in "grave doubt" about whether a trial error
is harmless, it must grant habeas relief. Id. at 435. A "grave
doubt" exists when "in the judge’s mind, the matter is so
evenly balanced that he [or she] feels . . . in virtual equipoise
as to the harmlessness of the error." Id. at 435. If a habeas
court finds itself without any grave doubt as to the harmless-
ness of error, it must deny habeas relief.
Applying the correct standard in assessing harmlessness in
cases involving Confrontation Clause error, we consider "a
host of factors." Van Arsdall, 475 U.S. at 684. These include
WIGGINS v. BOYETTE 9
"the importance of the [improperly admitted] witness’ testi-
mony 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.III.
With these principles in mind, we turn to analysis of Car-
ruth’s contentions. In doing so, we consider the factors set
forth in Van Arsdall to determine if the three statements erro-
neously admitted in violation of Carruth’s Confrontation
Clause rights—both individually and taken together—require
the grant of habeas relief.
A.
As to the importance of the improperly admitted state-
ments, Carruth contends that they formed the "focal point" of
the prosecution’s case. Appellant’s Br. at 16. In support of
this contention, he maintains that the prosecution heavily
relied on these statements in its opening and closing state-
ments by describing Ms. Adams’s role as an "eyewitness" to
the crime and her testimony as "a voice" telling "her mes-
sage." Id. at 19. This argument ignores the most critical evi-
dence in this case, the twelve-minute 911 call—an extremely
powerful and unchallenged account provided by Ms. Adams
in her actual "voice." Id. Carruth himself now not only fails
to dispute that the trial court properly admitted the 911 call
but also concedes that it "had great visceral impact." Id. at 32.
In the 911 call, immediately after being shot, Ms. Adams
related:
[MS. ADAMS]: Police, I’ve been shot. I’ve been
shot.
10 WIGGINS v. BOYETTE
911: You’ve been shot? Where are you at Ma’am?
***
[MS. ADAMS]: I passed Calvary Church on the
...
911: Calvary Church
[MS. ADAMS]: Ah, no . . .
911: You’re where? Talk Ma’am, I —
[MS. ADAMS]: On Rea Road
***
MEDIC: Okay. How did this happen?
[MS. ADAMS]: I was following my baby’s daddy,
Rae Carruth the football player.
MEDIC: So you think he did it?
[MS. ADAMS]: He slowed down. And, a car
pulled up beside me.
MEDIC: And then shot at you?
[MS. ADAMS]: Yes.
***
[MS. ADAMS]: And before—and before we left,
he called somebody from his house.
***
WIGGINS v. BOYETTE 11
MEDIC: Where’s your husband at?
[MS. ADAMS]: I don’t have one.
MEDIC: Or your boyfriend? The one that you said
was with you. Where’s he at?
[MS. ADAMS]: He was in the car in front of me
and he slowed down and somebody pulled up
besides me and did this.
MEDIC: And then where’d he go?
[MS. ADAMS]: He just left.
MEDIC: Okay. All right. What’s his name?
[MS. ADAMS]: Rae Carruth, he plays for the Pan-
thers.
***
MEDIC: Okay. All right. You got an officer close.
[Speaking to the medic] Did you hear what she said
about that boyfriend?
911: [Repeating what Ms. Adams told her] I got
his name was Rae Carroso [sic]. He’s in a white
Expedition. With a tag Mary Sam Nora, something,
something, 77.
***
911: Ma’am. I hate to do this to you. But, when
you last saw this Ford, when you last saw this car,
which way was it going? What road?
[MS. ADAMS]: Straight down Rea Road.
12 WIGGINS v. BOYETTE
Thus, Ms. Adams’s 911 call offered the State an extremely
powerful first-hand account of the crime by the victim herself.
The State proceeded to make full use of this abundant testi-
monial resource. The prosecutor began his opening statement
with a description of the call and a promise to the jury that it
would hear Ms. Adams herself "hold on and use her cell
phone to call 911" and "tell the 911 operator" about the attack
on her. At trial, the prosecutor made good on this promise. At
the very outset, before introduction of any of the improperly
admitted statements, the State focused on the crucial 911 call.
The prosecutor properly authenticated the tape of the call
through testimony from both the 911 operator and the medic
dispatcher. Then, after the trial court admitted the tape into
evidence, the prosecutor played the 911 call to the jury in
open court. Finally, the prosecutor distributed a transcript of
the 911 call to the jurors.
The statements to Officer Grant and Nurse Willard were
only admitted later, in less than a day, in this lengthy trial.
They may have enhanced Ms. Adams’s testimony, but the
substantial focus on, and probative weight of, the 911 call
overwhelmed the importance of these statements. It was the
911 call that turned Ms. Adams into the important "eyewit-
ness" that she was, a person who gave a near-
contemporaneous "voice" to the night’s tragic events.
B.
Moreover, the record belies Carruth’s contention that the
improperly admitted evidence was not cumulative. Standing
alone, without these improperly admitted statements, the 911
call established the critical elements of the State’s case
against Carruth: (1) before Carruth and Ms. Adams left his
house, Carruth called somebody; (2) Ms. Adams followed
Carruth down Rea Road, with Carruth driving his white Ford
Expedition in front of her smaller car; (3) Carruth slowed
down; (4) a car pulled up beside Ms. Adams’s car and some-
WIGGINS v. BOYETTE 13
body shot her; and then (5) after she was shot, Carruth "just
left" the scene.
Additionally, the State called Ms. Adams’s cousin and
roommate to testify that she received a call from Ms. Adams
just prior to the shooting, at around 12:15 a.m. In the call to
her cousin, Ms. Adams said that she and Carruth were "on
their way over to the apartment," would be there in 15 min-
utes, and asked that the apartment be "straighten[ed] up"
because Ms. Adams had not "expect[ed] him to come over."
Furthermore, co-conspirator Michael Kennedy testified at
length, without the benefit of a plea agreement, to all of the
facts (and much more) set forth in the improperly admitted
statements. According to Kennedy, after he met Carruth in
January or February 1999, he socialized with Carruth and vis-
ited Carruth’s home "a lot of times." Some hours before the
shooting, Carruth elicited his assistance in the plan to kill Ms.
Adams. Carruth told Kennedy that he had "got [Ms. Adams]
pregnant," that she was trying to "juice him for money," and
that "he was already paying like Five Thousand Dollars in
child support, and he didn’t want to pay another 5,000 in child
support." Carruth explained that he had previously paid Van
Brett Watkins "to beat up [Ms. Adams] so that she would lose
the baby," but Watkins "hadn’t done it yet." According to
Kennedy, Carruth "was telling me that he was gonna take
[Ms. Adams] to the movies, and for me to stay in the area"
and await Carruth’s phone call. Upon receiving that call, Ken-
nedy was to follow Ms. Adams’s car; Watkins was "to do the
rest." Carruth then gave Kennedy $100 and told him to "take
[Watkins] to get the gun."
Kennedy testified that, at 11:51 p.m., Carruth called to tell
him that he and Ms. Adams left the movies. At 12:19 a.m.,
Kennedy received another call from Carruth in which Carruth
told him: "We’re getting ready to leave the house." A short
time later, after following Ms. Adams (who in turn was fol-
lowing Carruth) down Rea Road, Kennedy testified that:
14 WIGGINS v. BOYETTE
Rae [Carruth] went over a hill and then down in the
dip. Then, he stopped his car; she stopped behind
his; I stopped behind her. Then, Watkins told me to
pull up beside her car. So, I pulled up beside her car
and he started shooting in her car.
All the while, according to Kennedy, Carruth remained in a
"stopped" position. After the shooting, Kennedy testified,
Carruth went "straight on Rea Road," just as Ms. Adams told
the 911 dispatcher.
Ms. Adams’s father also offered evidence duplicating the
improperly admitted evidence and corroborating Kennedy’s
testimony that Carruth stopped his car to facilitate the shooting.2
Ms. Adams’s father testified that when he asked Ms. Adams
at the hospital whether Carruth had a legitimate reason to
stop, due to a stoplight or stop sign, Ms. Adams shook her
head "no"—that no stoplight or stop sign caused Carruth to
stop.
In addition, a friend of Carruth’s, Candace Smith, also pres-
ented testimony duplicative of the improperly admitted evi-
dence. Smith related that, in the early morning of November
16, 1999, at the hospital, just after Ms. Adams had been shot,
Carruth told her that he "wished that [Ms. Adams] would die."
When Smith asked Carruth if he was involved, Carruth "went
into like a deep trance; and, he wouldn’t even look at me."
According to Smith, Carruth said that he "hit his brakes, in his
car, to slow [Ms. Adams’s] car down" and witnessed the
2
The parties dispute whether Carruth slowed down or stopped. Possibly
he both slowed down and then stopped. In the 911 call, Ms. Adams said
that Carruth slowed down; in the improperly admitted statements to Nurse
Willard and Officer Grant and the uncontested statement of her father, she
said that he stopped. This makes little difference given the testimony of
a forensic pathologist that slowing down in itself could have facilitated the
shooting by helping to align Kennedy’s car with Ms. Adams’s car.
WIGGINS v. BOYETTE 15
shooting. Afterwards, Carruth told Smith, he "just drove off
and went to" a friend’s home.3
In sum, the improperly admitted statements, though of
course supportive of the State’s case, constituted mere drops
in the sea of evidence offered by the State to show Carruth’s
guilt and were cumulative of the 911 call and other evidence.
C.
Next, we assess the extent and nature of corroborating or
contradicting evidence as compared with the improperly
admitted evidence. Close examination of the record leaves us
with the firm conclusion that the same evidence that makes
the improperly admitted statements cumulative corroborates
them—and nothing in the record contradicts this corroborat-
ing evidence.
Carruth asks us to disregard Kennedy’s and Smith’s testi-
mony. We have reviewed the extensive cross-examination of
both witnesses, in which defense counsel effectively explored
their biases, their histories, and the inconsistencies between
their testimony and prior statements. For example, counsel
focused on Kennedy’s bias as a co-conspirator seeking favor
from the State in exchange for his testimony and highlighted
several inconsistencies in Kennedy’s effort to place all the
3
Van Brett Watkins, who pled guilty to second degree murder and so
avoided the death penalty, had a substantial history of violent criminal
activity, and had made a series of inflammatory and inconsistent state-
ments; the State did not call him as a witness at trial. But, after the trial
court instructed the jury that Watkins had entered into a plea agreement
with the State and that it should examine his testimony "with great care
and caution," the defense called Watkins. Watkins corroborated Kenne-
dy’s account as to Carruth’s motive (unwillingness to pay child support)
and role (planning and slowing down or stopping) in the murder. More-
over, phone records introduced by the State showed six calls between Car-
ruth and Watkins on the day of the murder. Stanley Abraham, the last co-
conspirator, did not testify at trial.
16 WIGGINS v. BOYETTE
blame on Carruth who assertedly "forced" Kennedy to partici-
pate. Similarly, defense counsel stressed Kennedy’s access to
all the trial testimony, providing him an opportunity to tailor
his testimony to the theory that Carruth designed the whole
scheme. As for Smith, defense counsel pointed to her poten-
tial bias and receipt of use immunity in exchange for her testi-
mony, her delay in coming forward (suggesting a fear of
criminal liability for her involvement in the murder), and her
failure to relate Carruth’s asserted admissions at the hospital
to the defense’s private investigator in a pre-trial interview.
We have considered all of these efforts at impeachment and
can find no basis for holding that the jury could not credit
Kennedy’s and Smith’s testimony. Indeed, we have found
nothing in the record contradicting the critical portions of
their testimony. Moreover, other evidence corroborates their
testimony to a significant extent. For example, the State
offered, for corroboration purposes only, an audiotape replay-
ing a police investigator’s early interview of Kennedy. In that
interview, Kennedy explained, consistent with his testimony
at trial, the plan as Carruth originally conceived it. Cell phone
records additionally corroborate Kennedy’s testimony. Fur-
thermore, Kennedy’s testimony accorded with Ms. Adams’s
911 call. His testimony completes Ms. Adams’s story by
admitting that he drove the car that Ms. Adams witnessed pull
up beside hers, and that Watkins pulled the trigger. It also
confirms Ms. Adams’s statement, reinforced by her father’s
uncontested testimony, that Carruth slowed his car unexpect-
edly, with no stop sign or stoplight in sight.
D.
Additionally, we examine the extent of cross-examination
or impeachment of the improperly admitted statements. Car-
ruth insists that the trial court admitted the three statements
not only "without cross-examination," but also "unimpea-
ched." Appellant’s Br. at 18. Again the record belies Car-
ruth’s claims. Of course, because she had been murdered,
WIGGINS v. BOYETTE 17
defense counsel could not cross examine Ms. Adams at trial.
But the defense could elicit considerable testimony that the
shock caused by the gun wounds, pharmacological sedatives,
and volatility of memory formation associated with traumatic
events rendered Ms. Adams’s improperly admitted statements
unreliable.
Defense counsel questioned Nurse Willard as to Ms.
Adams’s mental capacity in the hospital. The nurse elaborated
on Ms. Adams’s precarious state, recalling her continuous
treatment with Versed and Morphine—an anti-anxiety medi-
cation and painkiller, respectively—that may have caused a
"synergistic effect" on Ms. Adams’s central nervous system.
On doctor’s orders, the nurse eventually put Ms. Adams to
sleep with these narcotics, highlighting their potency.
Later in the trial, the jury heard testimony from Dr.
Thomason—Ms. Adams’s treating physician in the hospital—
about the effects of these drugs. Dr. Thomason explained that
studies have not conclusively determined the retrograde
amnesia effects of Versed—that is, disruption of existing
memories formed prior to taking the medication. Dr. Thoma-
son also acknowledged that these medications affect the
"awareness" and "wakefulness" of a patient and increase the
risks of "suggestibility" and confirmed that Ms. Adams suf-
fered from shock. The defense was thus able to argue that
even though Ms. Adams did not lapse into total unconscious-
ness, she was suffering from certain cognitive impairments
that undermined her capacity to accurately recount the shoot-
ing.
Defense counsel called Dr. Loftus, a memory expert, to cast
doubt on the improperly admitted statements. Dr. Loftus iden-
tified specific indications that Ms. Adams’s statements to
Officer Grant and to Nurse Willard revealed a faulty recollec-
tion of the shooting. The doctor explained how the shock of
the shooting caused Ms. Adams to misreport a "well-known
fact" like the color of Carruth’s Expedition. The doctor also
18 WIGGINS v. BOYETTE
testified that an "atmosphere of suggestion and suspicion"
may have contaminated the improperly admitted statements.
Through these witnesses, the defense offered evidence
challenging the improperly admitted statements. Carruth’s
counsel thus drew the jury’s attention to Ms. Adams’s unsta-
ble condition at the time of those statements—a pregnant
woman wounded by gun shots, sedated by medication, suffer-
ing from shock, and exposed to the atmosphere of suspicion
emanating from the police and her family. Accordingly, we
do not find that the lack of cross-examination forecloses a
finding of harmlessness.
E.
Although not specifically mentioned in Van Arsdall as rele-
vant, Carruth argues that "given [1] the continual emphasis
placed on [the improperly admitted] statements throughout
[Carruth’s] trial, [2] the importance of those statements . . . at
trial, [3] the substantial impeachment of the state’s other wit-
nesses, [and] [4] the strength of the defense," the course of
jury deliberations and the compromise verdict demonstrate
that the State "cannot carry its burden of proving that the
admission of these statements did not substantially affect the
. . . verdict." Appellant’s Br. at 41.
This argument rests on two faulty premises. First, as noted
above, it rests on Carruth’s misunderstanding of the proper
analysis. The State has no "burden" to prove harmlessness;
rather, a habeas court examines the evidence admitted at trial
and the trial error and determines whether it has any "grave
doubt" as to whether the error was harmless. O’Neal, 513
U.S. at 435. Second, and equally fundamentally, Carruth has
not established the four predicates on which he relies, i.e.,
emphasis on the improperly admitted statements, importance
of these statements, substantial impeachment of the State’s
case, and strength of his own defense. Stripped of the faulty
premises, Carruth’s argument on this point is reduced to the
WIGGINS v. BOYETTE 19
contention that the length of jury deliberations, need for fur-
ther instruction, and compromise verdict, in and of them-
selves, demonstrate that the asserted Confrontation Clause
error was prejudicial. This argument fails.
The length of the deliberations here—four days after a trial
consuming six weeks—hardly seems untoward and, of course,
the need for additional instruction does not signal prejudice.
See, e.g., United States v. Aldridge, 413 F.3d 829, 833-35 (8th
Cir. 2005). This is particularly so given that the trial judge
gave a model reinstruction, which was singularly non-
coercive and simply explained to the jurors that they should
continue to deliberate. They did so and returned after another
day of deliberations with a unanimous verdict.4
Similarly, that the verdict may be inconsistent—acquittal of
first degree murder and conviction on the other counts—does
not provide a basis to upend it. See United States v. Powell,
469 U.S. 57, 64-65 (1984). Rather, as the Supreme Court has
instructed, "[the] most that can be said" of an inconsistent ver-
dict is that "[it] shows that either in the acquittal or the con-
viction the jury did not speak their real conclusions, but that
does not show that they were not convinced of the defendant’s
guilt." Id. at 63 (quoting Dunn v. United States, 284 U.S. 390,
393 (1932) (Holmes, J.)).
We recognize that the length of deliberations and an initial
impasse may indicate a "difficult case," see Kennedy v. Lock-
yer, 379 F.3d 1041, 1056 n.18 (9th Cir. 2004) (internal quota-
tion omitted), and may in some circumstances support the
conclusion that habeas relief is warranted. But a difficult case
does not necessarily mean a weak one. See, e.g., United States
v. Valencia, 600 F.3d 389, 412 (5th Cir. 2010); United States
v. Gilsenan, 949 F.2d 90, 96 (3d Cir. 1991). And here, given
4
We note that not even Carruth maintains that the jurors’ deliberations
were infected by any improper external influence. Cf. United States v.
Duncan, 598 F.2d 839, 866 (4th Cir. 1979).
20 WIGGINS v. BOYETTE
the abundant evidence outlined above, these facts do not pro-
vide support for the grant of a writ of habeas corpus.5
F.
Finally, we consider the overall strength of the State’s case.
Through the admissible evidence described above—including
Ms. Adams’s 911 call; the testimony from Kennedy, Smith,
Ms. Adams’s cousin, and her father; and the cell phone
records—the State presented a very strong case in chief that
Carruth conceived and saw to the murder of Ms. Adams.
Moreover, in its case in chief, the State also presented pow-
erful evidence of Carruth’s flight to avoid arrest and his
motive for the crime. After being charged with first degree
murder of Ms. Adams on December 14, 1999, Carruth fled
North Carolina. Executing a warrant for his arrest, an FBI
agent found Carruth in the trunk of a friend’s car at a Tennes-
see motel, with $3900, food, and water. From this evidence,
the jury certainly could conclude Carruth fled to avoid a
charge and conviction for murder. As for motive, Kennedy
and Smith testified that Carruth sought to murder Ms. Adams
and the child to avoid the sort of child support payments a
court had ordered him to pay to the mother of another one of
his children and the State also offered evidence that Carruth
claimed he could not afford the combined child support pay-
ments.
Furthermore, when Carruth’s witnesses testified that he
welcomed the birth of a new child and that, as a professional
football player, he had ample income and no motive to avoid
child support, the State produced rebuttal witnesses that cast
5
While a mistrial is not necessary to show prejudice under Brecht, we
note that unlike the cases on which Carruth so heavily relies, the verdict
here did not follow previous mistrials due to deadlocked juries. See Fry,
551 U.S. at 122-23 (Stevens, J., concurring); Kennedy, 379 F.3d at 1056
n.18.
WIGGINS v. BOYETTE 21
serious doubt on these claims. Michelle Wright—the mother
of Carruth’s son, Rae, Jr.—described her difficulties in
obtaining child support from an unwilling Carruth. When Car-
ruth refused to pay child support, Wright had to file suit and
submit her son to a paternity test to obtain court-ordered
relief; only then did Carruth pay any child support. And, after
Wright attempted to involve Carruth in their son’s life, Car-
ruth "joked" that she should not be surprised if she "got in a
fatal car accident."
Another of Carruth’s girlfriends, Amber Turner, both sub-
stantiated Wright’s testimony and testified to a similar threat
to her. Turner explained that from 1995 to 1997, when Car-
ruth was refusing to pay child support to Wright for his baby
son, and forcing Wright to take him to court, he was giving
Turner $500 every month and buying her a Lexus and clothes.
Carruth told Turner that he intended to "fix" his blood test to
avoid paying child support to Wright. In March 1998, when
Turner herself became pregnant with another of Carruth’s
children, Carruth threatened her—"don’t make me send some-
body out there to kill you, you know I’d do it." He told Turner
to abort their child, which she ultimately did. Turner also
identified a four-page letter that Carruth had written her while
in prison awaiting trial in this case, which substantially cor-
roborated their close relationship. In the letter, Carruth
implored Turner not to talk to the police. Instead, Carruth told
Turner to talk to his lawyers and explained "here’s what you
recall"—that he loved and missed his son, "didn’t mind pay-
ing child support" and other facts helpful to his case—all of
which Turner testified were untrue.
In short, given the admissible 911 call from Ms. Adams and
the testimony and documentary evidence outlined above, the
three improperly admitted statements, considered both indi-
vidually and taken together, were almost entirely cumulative.
With a wealth of admissible evidence, the State presented an
overwhelmingly strong case that Carruth orchestrated a plan
to kill Ms. Adams to avoid paying child support and that the
22 WIGGINS v. BOYETTE
plan unfolded as he had designed it. After Carruth and Ms.
Adams left the movies and returned to his house to pick up
Ms. Adams’s car, Carruth unexpectedly told Ms. Adams he
would follow her home and then called Kennedy to alert him
that they were on the way. On the drive to Ms. Adams’s
home, Carruth led her down Rea Road, where Kennedy fol-
lowed both cars with Watkins as the backseat passenger.
Without any legitimate reason to slow or stop, Carruth did
slow or stop in the middle of Rea Road, compelling Ms.
Adams to do so as well. Kennedy pulled up next to Ms.
Adams’s car and Watkins fired the gun, striking Ms. Adams
with four bullets and fatally wounding her. Carruth fled the
scene of the shooting and, when later charged with Ms.
Adams’s murder, fled the state. Given the overwhelming
admissible evidence, we are confident that the asserted Con-
frontation Clause error did not "substantially influence[ ] the
jury’s decision." O’Neal, 513 U.S. at 436.
IV.
In sum, we hold that the error asserted here did not produce
a "substantial and injurious effect" on the jury’s verdict.
Brecht, 507 U.S. at 637 (internal quotation omitted). Accord-
ingly, the judgment of the district court denying habeas relief
is
AFFIRMED.