any further cross-examination on her fainting history.
Based on this evidence, the jury found Alvarez guilty of
attempted first-degree murder. The Illinois appellate court
affirmed his conviction and subsequently denied his petition for
rehearing. (Pet'r.'s Mem. Supp. at 2.) Alvarez filed a Petition
for Leave to Appeal with the Illinois Supreme Court, which was
rejected. (Pet'r.'s Mem. Supp. at 2.) Having exhausted state
remedies, he now seeks habeas corpus relief in this Court.
(Pet'r.'s Mem. Supp. at 11-12.) Before assessing the merits of
his claims, we set forth the applicable standards that guide our
STANDARD OF REVIEW*fn2
Under the Antiterrorism and Effective Death Penalty Act of
1996, Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA), a federal court
must deny habeas relief unless the state court's adjudication
"resulted in a decision 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).*fn3 The standard for mixed questions of law and fact
is whether the state court's application of clearly established
Supreme Court law was reasonable. Spreitzer v. Peters,
114 F.3d 1435, 1441 (7th Cir. 1997). A state court has reasonably applied
Supreme Court caselaw if its application is "at least minimally
consistent with the facts and circumstances of the case." Id.
at 1442. Under this limited analysis, the state court's decision
must stand "if it is one of several equally plausible outcomes."
Ashford v. Gilmore, 167 F.3d 1130, 1134 (7th Cir. 1999),
quoting Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir.
1997). Having set forth the applicable standards for federal
habeas corpus review, we will now address the merits of Alvarez's
I. Prevention of Cross-Examination as Violation of Confrontation
Alvarez claims that his Sixth Amendment rights were violated
when the trial court prohibited cross-examination of Godina's
fainting history. He correctly notes that courts have the power
to limit cross-examination where the interrogation is "repetitive
or only marginally relevant." Delaware v. Van Arsdall,
The Confrontation Clause guarantees a defendant "an opportunity
for effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense
might wish." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct.
292, 88 L.Ed.2d 15 (1985). Additionally, the subject of
admissibility of evidence is generally a matter of state concern.
Estelle v. McGuire, 502 U.S. 62, 65-69, 112 S.Ct. 475, 116
L.Ed.2d 385 (1991); U.S. ex rel. Bryant v. Washington,
869 F. Supp. 601, 603 (N.D.Ill. 1994). Our task is not to
"second-guess" the correctness of the trial court's rulings based
on state evidentiary rules; rather, we are only to decide if a
constitutional right has been violated by those determinations.
Koo v. McBride, 124 F.3d 869, 874-75 (7th Cir. 1997). To make
this decision, we balance the effect of the precluded evidence on
the defendant's Sixth Amendment rights against the state's
interest in excluding the evidence in question. Tague v.
Richards, 3 F.3d 1133, 1137-39 (7th Cir. 1993).
The trial court's limitation on the cross-examination of Godina
could be constitutional error if her fainting history was
genuinely relevant to substantive issues in the case. A witness'
testimony should be subject to cross-examination if it is clearly
probative of the witness' cognitive ability to recognize and
identify an offender. Henderson v. DeTella, 97 F.3d 942, 949
(7th Cir. 1996) (holding that an inquiry into a witness' drug use
is permissible only if it relates to the cognitive abilities of
the witness at the time of the offense or other pertinent time);
United States v. Miranda, No. 94 CR 714, 1997 WL 627655, at *8
(N.D.Ill. Sept. 22, 1997) (allowing the defendant to question a
witness on drug use that may have impaired "his ability to
perceive, recall, and recount events at issue during the time
period at issue"). Here, the line of questioning proposed by
Alvarez would not have probed Godina's ability to identify him
the day of the stabbing because she had already testified that
she remained conscious during the attack. That she had fainted on
three previous occasions, none of which had any relation to each
other or to the circumstances of the stabbing, does not establish
that she may have fainted while being stabbed. The Henderson
court held that a state trial court properly excluded evidence of
a witness' drug use on occasions that were not clearly related to
the crime. 97 F.3d at 949. Likewise, the trial court here could
properly prevent cross-examination about fainting spells that
were completely unrelated to Godina's ability to recall the
Alvarez argues that the evidence shows Godina may have fainted
that day because 1) she was unconscious immediately before her
operation, 2) she said that she "felt faint" several times, and
3) her testimony differed from Thompson's. However, these facts
do not necessarily raise the inference that she fainted. While
she was unconscious before the operation, she was awake in the
emergency room when she spoke with nurse Kuska. The record
contains no evidence to suggest that she was unconscious prior to
the operation. Although Godina did say that she "felt faint," she
also testified that she did not faint the day of the attack.
U.S. ex rel. Poole v. Gramley, No. 94 C 4148, 1997 WL 403689,
at *4 (N.D.Ill. July 15, 1997) (noting that a witness' drug use
was not relevant at trial because the victim had already denied
using drugs at any relevant time). Additionally, the
discrepancies between Thompson's and Godina's accounts of the
attack do not demonstrate that she passed out. Her story, though
different from his, is detailed and complete. Furthermore,
Thompson, a defense witness, said that he found Godina lying on
her back; yet he did not testify that she was unconscious at
anytime during the attack. The State's interest in eliminating
irrelevant and possibly confusing evidence outweighs Alvarez's
interest in presenting evidence that does not concern the
witness' ability to identify him.
Though we need not consider the effect of the trial court's
continue our analysis to show the harmless nature of the alleged
error. An error is harmless absent a showing that the decision
had a "substantial and injurious effect or influence in
determining the jury's verdict." Brecht v. Abrahamson,
507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), quoting
Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90
L.Ed. 1557 (1946); see also Tague, 3 F.3d at 1140. A federal
reviewing court cannot grant habeas corpus relief based on a
trial error unless the petitioner demonstrates actual prejudice.
Brecht, 507 U.S. at 637, 113 S.Ct. 1710. Trial error is not
prejudicial unless the petitioner can establish that it caused
the conviction of an innocent person, Thompkins v. Cohen,
965 F.2d 330, 333 (7th Cir. 1992); Gonzalez, 918 F. Supp. at 1220,
or at least that the outcome of the trial would have been
different if not for the error, Murray v. Carrier,
477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Austin v.
Peters, No. 89 C 2304, 1990 WL 139272 (N.D.Ill. Sept.17, 1990).
In light of the Brecht standard, we cannot say that the state
trial court's exclusion of the fainting evidence had a
substantial effect such that the outcome of the trial would have
otherwise been different. Alvarez argues that the jury "might
have inferred that she did faint" from evidence of Godina's prior
fainting spells, but such a weak assertion does not show that
this decision worked to his actual disadvantage. Carrier, 477
U.S. at 494, 106 S.Ct. 2639; Maciel v. Carter, 22 F. Supp.2d 843,
854 (N.D.Ill. 1998). Even if the trial court had allowed
defense counsel to pursue this line of questioning, Godina
nonetheless testified that she did not faint during the attack.
Her statement was corroborated by the details she recounted and,
as the Illinois appellate court noted, by the defensive wounds on
her wrists. Even if the evidence permitted the jury to conclude
that Godina did faint at some point, she was not unconscious for
the entire attack and had ample opportunity to view and identify
her attacker. Alvarez fails to show that the preclusion of this
evidence actually prejudiced the outcome of his trial.
We move now to consider the reasonableness of the Illinois
appellate court's application of established law to this alleged
error. The appellate court correctly set forth the issue, the
trial court's reasoning, and the applicable standard of review.
The appellate court agreed that the fainting history was not
relevant without evidence that she fainted during the attack. The
appellate court cited evidence from the record to support its
conclusion that the trial court had not abused its discretion in
preventing the cross-examination. The appellate court's review
was brief, but logical and reasonable. Therefore, it "must be
respected . . . because the grave remedy of upsetting a judgment
entered by another judicial system after full litigation is
reserved for grave occasions." Lindh v. Murphy, 96 F.3d 856,
871 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320, 117
S.Ct. 2059, 138 L.Ed.2d 481 (1997).
II. Exclusion of Non-identification Statements as Violation of
Compulsory Process Clause
Alvarez next claims that the trial court violated his Sixth
Amendment right to present a defense when it excluded Thompson's
two out-of-court statements that Alvarez was not the attacker.
According to Alvarez, the trial court erred in finding that
Thompson's proposed testimony did not fall within the
identification exception to the hearsay rule as prescribed by §
115-12 of the Illinois Code of Criminal Procedure of 1963. 725
ILCS 5/115-12 (West 1994). Although Alvarez would have us review
the trial court's state law determinations, we have neither the
power, nor the inclination, to do so. This Court cannot sit as a
super-appellate body and consider state law matters.