DeWITT TASH v. GARY RODEN, Superintendent; MARTHA COAKLEY, Attorney General

Of the Seventh Circuit, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 10-1173
DeWITT TASH,
Petitioner, Appellant,
v.
GARY RODEN, Superintendent; MARTHA COAKLEY, Attorney General,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Boudin, Ripple and Selya, *
Circuit Judges.
Janet Hetherwick Pumphrey for appellant.
Amy L. Karangekis, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief
for appellees.
November 16, 2010

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BOUDIN, Circuit Judge. In 2002 Dewitt Tash was convicted
of raping a mentally impaired adult woman in his care at a state
facility in Feeding Hills, Massachusetts. The putative victim had
no use of her arms, legs or hands and was incapable of
communication. The case rested importantly, but not entirely, on
Tash's confession to the crime. After two unsuccessful state
appeals, he sought habeas corpus; the federal district court denied
the petition but granted a certificate of appealability.
We recount the facts found by the state courts,
supplemented with consistent record evidence. Lynch v. Ficco, 438
F.3d 35, 39 (1st Cir.), cert. denied, 549 U.S. 892 (2006). At
trial, the victim did not testify and presumably could not have
done so given her impairments. The Commonwealth relied instead on
testimony from Geraldine Brown, a licensed practical nurse at the
facility; Wayne Macey, an Agawam, Massachusetts, police sergeant to
whom Tash confessed; and Christopher Fox, a state psychologist who
examined the victim and found her incapable of consenting to sex.
Brown testified that she and Tash were working alone
together at the facility in the early morning hours of July 19,
2000. Tash's duties there included cleaning, preparing meals and
caring for the facility's four disabled residents; pertinently,
both Tash and Brown were responsible for routinely checking and
changing the adult briefs (i.e., diapers) worn by the residents,
all of whom were incontinent.

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At 2:00 a.m., Tash left Brown in a staff lounge and
walked toward the residents' rooms. Brown thought this was
unusual, as she had recently finished changing all the residents'
briefs, and went to investigate. From the hallway, she observed
Tash standing inside the victim's room next to her bed--his back to
the hallway, his untucked shirt bunched around his waist and his
belt unbuckled--as he held both of the victim's legs in the air and
pulled her toward him. The victim's diaper had been removed and
her nightgown pulled up, leaving her naked from the waist down.
Brown ducked into another resident's room, pretended to
be occupied there, said loudly, "I'm in here," and saw Tash rush
down the hallway and into the bathroom a few minutes later. Brown
then went into the victim's room and found the victim's diaper re-
fastened. A strip on the outside of the brief had changed color to
indicate moisture inside, but Brown opened it and observed nothing
out of the ordinary--including no sign of any sexual trauma. Brown
waited almost a week before reporting her suspicions to state
officials.
In due course, Macey interviewed Tash at a police
station. After Miranda warnings, Tash admitted under questioning
that he had twice engaged in sexual contact with the same victim,
putting his tongue and penis in the victim's vagina; each incident
occurred in the early morning hours, once about six months before
and the second time on or around July 19. Tash claimed that he had

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been experiencing impotency and was experimenting to see if his
condition had improved. Macey typed a written version of the
admissions, read it to Tash, and asked Tash to read and sign it,
which Tash did.
Under Massachusetts penal law, rape is defined as sexual
intercourse by force or threat of force and without consent. See
Mass. Gen. Laws ch. 265, § 22(b) (2008); Commonwealth v. Lopez, 745
N.E.2d 961, 965 (Mass. 2001). Sexual intercourse means penetration
of the victim's genitals, however slight. Commonwealth v.
Nylander, 532 N.E.2d 1223, 1225 (Mass. App. Ct. 1989). If the
victim is incapable of consenting--as Tash concedes was true here--
the only force that need be proven is the force necessary to effect
penetration. Commonwealth v. Blache, 880 N.E.2d 736, 741 (Mass.
2008).
Tash testified in his defense, contradicting Macey on
several key points. He conceded that he had told Macey that he was
experiencing impotency and then admitted upon questioning that he
was capable of penetrating the victim despite his impotency; but he
claimed in his own testimony that Macey had twisted this
hypothetical statement into historical fact. Although the written
confession was consistent with Macey's version, Tash denied reading
it or hearing it read before signing it, again contradicting Macey.
As for Brown's eyewitness account, Tash said that he was
merely changing the victim's diaper the same way and at the same

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time that he always did. Brown herself conceded that Tash normally
checked the residents' briefs at 2:00 a.m., although both Brown and
a second nurse testified that the accepted method for changing the
victim's diaper was to roll her to the side--not to raise her legs
in the air.
The jury convicted Tash of one count of rape, Mass. Gen.
Laws ch. 265, § 22(b). Tash sought review in the Massachusetts
Appeals Court on two occasions, raising claims of insufficient
evidence corroborating his confession and ineffective assistance of
counsel; both these appeals failed on the merits and the Supreme
Judicial Court ("SJC") refused further discretionary review.
Commonwealth v. Tash, 814 N.E.2d 764, 2004 WL 2049264 (Mass. App.
Ct.) (unpublished table decision), review denied, 816 N.E.2d 1222
(Mass. 2004); Commonwealth v. Tash (Tash II), 897 N.E.2d 1042, 2008
WL 5191455 (Mass. App. Ct. 2008) (unpublished table decision),
review denied, 902 N.E.2d 947 (Mass. 2009).
Tash then filed a timely petition for a writ of habeas
corpus, 28 U.S.C. § 2254 (2006), in federal district court. His
petition claimed three grounds for relief: insufficient
corroboration of his confession; insufficient evidence of guilt;
and ineffective assistance of counsel. The district court denied
the petition but granted a certificate of appealability to this
court as to all three issues.

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We review de novo the district court's denial of Tash's
petition, DeBurgo v. St. Amand, 587 F.3d 61, 67 (1st Cir. 2009);
but where a legal claim has been decided by the state court on the
merits, a habeas petitioner must show the ruling to be "contrary
to, or involv[ing] 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); see Williams v. Taylor, 529
U.S. 362, 409-13 (2000). Similarly, factual determinations by the
state court must be respected unless shown to be "unreasonable."
28 U.S.C. § 2254(d)(2).
Tash asserts that the Commonwealth failed to show that
his confession was "corroborated" by other evidence; in a nutshell,
the doctrine is that a criminal conviction cannot rest upon a
confession unless it is substantiated by other evidence. The
requirement is widely imposed in state and federal criminal cases,
see 1 McCormick on Evidence § 145, at 592 (K. Broun ed., 6th ed.
2006); 7 J. Wigmore, Evidence § 2071, at 511-24 (Chadbourn rev.
1978), although Massachusetts did not adopt it until Commonwealth
v. Forde, 466 N.E.2d 510, 513 (Mass. 1984).
What Tash overlooks in his briefing of this issue is that
the Massachusetts requirement imposed by Forde, even if it were
mistakenly applied by the state courts in this case, is not
(standing alone) a basis for habeas corpus or its section 2254
counterpart. Both federal remedies are, so far as pertinent, aimed

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only at those held "in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. §§ 2241(c)(3), 2254(a).
Habeas jurisprudence is often impenetrable; but this aspect is
clear. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Of course, a state requirement may also be one mandated
by the federal Constitution, but Tash fails to argue, let alone
demonstrate, that corroboration of confessions is of this
character. The leading Supreme Court cases that established the
requirement for federal trials, Opper v. United States, 348 U.S.
84, 89-93 (1954), and Smith v. United States, 348 U.S. 147, 156
(1954), described the requirement as the ordinary practice in state
as well as federal courts, but noted as well that it was not
universally followed in English courts.
More important, Opper and Smith made no reference to
constitutional compulsion; corroboration was merely deemed a better
rule sanctioned by common law. See Opper, 348 U.S. at 93. Learned
Hand doubted the soundness of the requirement, Daeche v. United
States, 250 F. 566, 571 (2d Cir. 1918), and Wigmore deemed it an
obstacle to truth, 7 Wigmore, supra, § 2070, at 510; and in any
event, as McCormick observed, "[c]onstitutional considerations . .
. do not demand it." 1 McCormick, supra, § 145, at 593. We have
agreed with McCormick. United States v. Singleterry, 29 F.3d 733,
737 (1st Cir.), cert. denied, 513 U.S. 1048 (1994); accord United
States v. Dickerson, 163 F.3d 639, 643 (D.C. Cir. 1999).

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Even if it were assumed arguendo that Opper represents a
constitutional minimum in at least some cases--which we are far
from holding--the outcome in this case would be the same, because
there was substantial corroboration of Tash's confession. There is
good reason to address the issue here independent of any
constitutional requirement of corroboration: this is so because
whether Brown's testimony provided substantial evidence of the
crime--the key issue under the corroboration doctrine--also bears
on Tash's further claim that the entire body evidence against him
was constitutionally insufficient.
Jurisdictions applying the requirement differ as to just
what must be corroborated, the required proof, and even the
rationale. See 1 McCormick, supra, § 145, at 595-96; id. §§ 147-
148, at 600-05. Massachusetts takes a narrow view favored by
Wigmore, demanding only "some evidence, besides the confession,
that the criminal act was committed by someone, that is, that the
crime was real and not imaginary." Forde, 466 N.E.2d at 513
(following 7 Wigmore, supra, § 2072, at 524). In federal criminal
trials, district courts require "substantial independent evidence"
that warrants belief in the truthfulness of the confession. Opper,
348 U.S. at 93.
But neither Opper nor Forde requires that the
corroborative evidence be sufficient of its own force to prove the
crime beyond a reasonable doubt. Smith, 348 U.S. at 156; cf.

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Commonwealth v. Costello, 582 N.E.2d 938, 940 (Mass. 1991). The
point is to fortify the confession, not render it superfluous.
"Fortification" is a matter of degree; but the corroborating
evidence against Tash was substantial. For Brown, a co-worker
present on the scene, testified to seeing Tash in circumstances
supporting the charge of rape and testified further to Tash's
retreat when she warned him of her presence.
As already recounted, Brown testified to seeing Tash on
the night in question, with his untucked shirt bunched around his
waist and his belt unbuckled, standing opposite the victim naked to
the waist in her bed, as he held both of the victim's legs in the
air and pulled her toward him. Further, it was Brown and not Tash
who usually changed the female residents' briefs when the two
worked together. And holding the victim's legs in the air with one
hand and lifting her buttocks off the bed--as Brown observed Tash
doing--was contrary to standard practice for changing the diapers.
Tash's counsel argues that Brown's testimony alone does
not prove actual physical contact; it is Tash's confession that
supplies this critical detail, as well as a motive for his
behavior. But, as the precedents recited above make clear, the
corroboration need not prove the offense: it is enough that
corroboration bolster significantly the likelihood that the
confession itself is true and that, taken together, the

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corroboration and the confession establish the crime beyond a
reasonable doubt. To this latter issue we now turn.
Tash's insufficient evidence claim, relying on Jackson v.
Virginia, 443 U.S. 307 (1979), does invoke a rule of federal
constitutional law; but it is not clear that the claim was
exhausted. Tash's first application to the SJC did include Jackson
in a string cite for the statement that sufficient evidence is a
due process requirement; but the argument developed before and
after in the application related not to the overall sufficiency of
the evidence but to the sufficiency of the corroboration. Still,
the Jackson claim fails on the merits, and we are free to affirm on
this ground. Clarke v. Spencer, 582 F.3d 135, 145 (1st Cir. 2009).
For a Jackson claim, Tash must show that no "rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt," 443 U.S. at 319, even when credibility
determinations and competing factual inferences are taken in favor
of the verdict, id. at 326. This might sound like ordinary circuit
court review of jury verdicts in federal trials--no easy hurdle
itself, United States v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998),
cert. denied, 525 U.S. 1138 (1999)--but in practice the Jackson
standard is higher and is rarely met where there is plausible
evidence to support a verdict. Cf. Stewart v. Coalter, 48 F.3d
610, 613-16 (1st Cir.), cert. denied, 516 U.S. 853 (1995).

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If Macey's testimony is credited, Tash confessed orally
and in writing to the only disputed element--sexual intercourse.
Tash did not deny signing the document but merely claimed that he
had not read it. If Brown's testimony is credited, highly
suspicious circumstances "fortified" the confession, and
penetration--if not alone proved by Brown's testimony--was
certainly made much more likely. Thus, the Jackson claim fails--
even if considered de novo because not decided on the merits in
state court, Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001),
cert. denied, 535 U.S. 1018 (2002).
Tash's remaining argument is that his trial counsel was
ineffective under Strickland v. Washington, 466 U.S. 668 (1984),
and its progeny. The Massachusetts Appeals Court decided this
claim on the merits, Tash II, 2008 WL 5191455, at *1-*2, under
state case law functionally equivalent to the relevant federal
standards, see Scarpa v. Dubois, 38 F.3d 1, 7-8 (1st Cir. 1994),
cert. denied, 513 U.S. 1129 (1995); and it was raised in Tash's
second application to the SJC. So the claim is ripe for habeas
review, albeit under the deferential standards already described.
The ineffectiveness claim rests on three alleged errors
by trial counsel. The first is that trial counsel retained a
psychologist with purported expertise in false confessions but
declined to call him as a witness at trial. But, as the Appeals
Court persuasively explained, once counsel had reviewed the

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Trial counsel elicited that Brown told the grand jury that 1
she changed the residents' briefs that night at 12:30 a.m., not
1:30 a.m., and that it was "intuition" that led her to investigate
Tash's activities at 2:00 a.m. rather than the oddity of Tash going
to change the briefs again so soon after she had done so. He also
brought out that Brown had never before described Tash as "rushing"
out of the victim's room nor claimed to be afraid of him in
explaining her reluctance to report what she saw.
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expert's proposed testimony, declining to call him was a reasonable
tactical judgment. Tash II, 2008 WL 5191455, at *1.
This is so because the psychologist's proposed testimony
about false confessions was based upon a theory that had not been
established as reliable; the theory concerned false confessions by
individuals of low intelligence and compliant personalities, but
the psychologist had examined Tash and found him to be intelligent;
and a false-confession defense would have effectively, if not
literally, required Tash to admit to making the confession in the
first place. In some respects, the expert could easily have
worsened Tash's position.
Next, Tash says that trial counsel botched the
impeachment of Brown by failing to cross-examine her on some of the
inconsistencies between her trial testimony and her testimony at
prior hearings, opting instead to play taped recordings of those
statements at the close of the defense case. But in fact counsel
did vigorously cross-examine Brown on inconsistent details, and 1
electing to focus on some points rather than others is
presumptively a strategic choice. Yarborough v. Gentry, 540 U.S.

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1, 8 (2003) (per curiam); Knight v. Spencer, 447 F.3d 6, 17 (1st
Cir. 2006).
Here, the additional details that Tash now says should
have been stressed were hardly critical. One claim is that counsel
should have contrasted one Brown reckoning of time with another--
that Tash had been with the victim for "a few minutes" versus
"three minutes." The other is that counsel allowed Brown to say,
inaccurately, that she had never before said she was afraid of Tash
because no one had ever asked her--matters relevant mainly to her
delay in reporting the crime to authorities. This kind of second-
guessing of cross-examination on small details is fruitless.
Finally, although Brown helpfully conceded that her check
of the victim showed no signs of sexual trauma, Tash says counsel
should have pursued additional, cumulative evidence of the absence
of sexual trauma. The Appeals Court was hardly unreasonable in
finding that counsel was not deficient for failing to pile on
duplicative evidence of this uncontested fact. Cf. Ruiz v. United
States, 339 F.3d 39, 42 (1st Cir. 2003).
Affirmed.

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