Bennett v. State of NH CV-00-507-B 06/06/01
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Eric Bennett
v. Civil No. 00-507-B 2001DNH111 State of New Hampshire
MEMORANDUM AND ORDER
Petitioner Eric Bennett, pro s e , is currently serving a
sentence of fifteen to thirty years in the New Hampshire State
Prison for manslaughter. He has petitioned this Court for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that: (1)
the trial court erred in admitting into evidence statements that
Bennett made to the police prior to having been given a Miranda
warning; (2) his trial counsel were ineffective; and (3) the
prosecution engaged in misconduct. Because I conclude that
Bennett’s arguments lack merit, I dismiss his petition.
I . BACKGROUND1
On the evening of August 3 , 1996, Bennett, his girlfriend
Jennifer Bohl, and a number of friends gathered at Bohl’s
apartment in Weare, New Hampshire. The group eventually left the
1 I take the facts from the parties’ briefs and the transcript of the trial. apartment and went to a bar in Concord, but returned, in part,
because Bennett was intoxicated.
Bennett consumed several shots of vodka at Bohl’s apartment
and later fell asleep on her bed. While Bennett slept, Bohl and
her remaining friends went to a party in a nearby town where they
encountered Douglas Goodman. After Bohl expressed concern that
Bennett was asleep in her bed, Goodman, an acquaintance of
Bennett, offered to return to Bohl’s apartment with her and drive
Bennett to his home in Manchester.
Bohl and Goodman returned to Bohl’s apartment, woke Bennett
and convinced him to get into Bohl’s car. Eventually, Bennett
got into the back seat and pretended to fall asleep. Goodman sat
in the front passenger seat. On the way to Bennett’s home,
Bennett suddenly put his right arm around Goodman’s throat and
began to choke him. Bennett also put his left hand around his
right wrist to strengthen his hold on Goodman’s neck. As Bennett
held Goodman against the passenger seat, Goodman struggled to
breathe. Bohl stopped the car and screamed at Bennett to stop.
Bennett responded by extending his leg forward into the front of
the car, onto the steering column and against the horn, thereby
obtaining more leverage on Goodman.
-2- The sound of the horn, and the voices of Bohl and Bennett,
awakened Sandra Chabot, who lived nearby. Chabot called the
police at 1:01 a.m.
Officer Lisa Mackey of the Goffstown Police Department
arrived on the scene approximately ten minutes after Chabot’s
call. As Officer Mackey approached the car she observed that
Bennett was still strangling Goodman. Officer Mackey asked
Bennett three times to stop, but he refused to do so until
Officer Mackey drew her gun and aimed it at Bennett.
Goodman died that morning. An autopsy revealed that Goodman
had died as a result of strangulation.
Bennett was charged with second-degree murder. A jury in
Hillsborough County Superior Court-Northern District convicted
Bennett of the lesser-included offense of manslaughter. On
appeal, the New Hampshire Supreme Court affirmed his conviction.
See New Hampshire v . Bennett, 737 A.2d 640, 647 (N.H. 1999).
Bennett subsequently filed a motion for a new trial with the
Hillsborough County Superior Court, raising many of the same
allegations of prosecutorial misconduct and ineffective
assistance of counsel he asserts in his habeas corpus petition.
See Mot. for New Trial, Exh. A . to State’s Answer for Writ of
-3- Habeas Corpus (“State’s Answer”), (Doc. No. 9 ) , at 27-30
(prosecutorial misconduct), 30-33 (ineffective assistance of
counsel). The court denied Bennett’s motion, as well as his
subsequent motion to reconsider, without comment. See Order of
March 1 4 , 2000, Exh B. to State’s Answer (“Defendant’s motion for
new trial is denied.”); Order of April 1 5 , 2000, Exh. D. to
State’s Answer (“The Motion to Reconsider is Denied.”). Bennett
then filed a notice of appeal to the New Hampshire Supreme Court
which declined to review the trial court’s ruling. Bennett
subsequently filed the instant petition for a writ of habeas
corpus.
II. STANDARD OF REVIEW
I may grant Bennett’s petition for a writ of habeas corpus
only if the adjudication of his claims in state court: (1)
“resulted in a decision that was contrary to . . . clearly
established [f]ederal law, as determined by the Supreme Court of
the United States;” or (2) “involved an unreasonable application”
of such law. 28 U.S.C. § 2254(d) (2000); see Williams v . Taylor,
120 S.Ct. 1495, 1518-23 (2000) (interpreting § 2254(d)); Williams
v . Matesanz, 230 F.3d 421, 424-26 (1st Cir. 2000). In this
-4- context, “clearly established federal law, as determined by the
Supreme Court of the United States” refers to the holdings of the
Supreme Court as of the time of the relevant state-court
decision. See Taylor, 120 S.Ct. at 1523.
Accordingly, I must first ascertain whether the state
court’s decision, as to each claim raised by the petitioner, was
contrary to relevant Supreme Court precedent. See Taylor, 120
S.Ct at 1519; Matesanz, 230 F.3d at 426 (applying Taylor). A
decision is contrary to Supreme Court precedent if the state
court: (1) applied a rule that contradicts the governing law set
forth by the Supreme Court; or (2) reached a different result
than that reached by the Supreme Court in a case involving
materially indistinguishable facts. See Taylor, 120 S.Ct. at
1519-20; Matesanz, 230 F.3d at 424-25 (comparing Taylor with
O’Brien v . Dubois, 145 F.3d 16 (1st Cir. 1998)); see also Ramdass
v . Angelone, 120 S.Ct. 2113, 2120 (2000) (plurality opinion of
Kennedy, J . ) . In essence, this initial inquiry requires the
petitioner to show that “Supreme Court precedent requires an
outcome contrary” to that reached by the state court. Matesanz,
230 F.3d at 425 (quoting O’Brien, 145 F.3d at 24-25).
-5- If the state court’s decision was not contrary to Supreme
Court precedent, I must then ask whether the state court’s
decision involved an “objectively unreasonable” application of
clearly established federal law, as determined by the Supreme
Court. See Taylor, 120 S.Ct. at 1519, 1521-22; Phoenix v .
Matesanz, 233 F.3d 7 7 , 80-81 (1st Cir. 2000); Matesanz, 230 F.3d
at 425. A decision is not objectively unreasonable solely
because I conclude that the state court applied the law
erroneously or incorrectly. See Taylor, 120 S.Ct. at 1521-23.
Rather, to be objectively unreasonable, the state court’s
application of law must be so erroneous or incorrect as to fall
“outside the universe of plausible, credible outcomes.”
Matesanz, 230 F.3d at 425 (quoting O’Brien, 145 F.3d at 2 5 ) ; see
Taylor, 120 S.Ct. at 1521-22 (rejecting the “reasonable jurist”
standard as impermissibly subjective).
In reviewing a petition for a writ of habeas corpus, a
federal court must accept the state court’s resolution of the
factual issues unless the petitioner can establish by clear and
convincing evidence that the state court determined the facts
incorrectly. See 28 U.S.C. § 2254(e)(1). I apply these
standards in reviewing Bennett’s petition.
-6- III. DISCUSSION
Bennett argues that: (1) the trial court erred in admitting
into evidence statements that Bennett made to the police prior to
having been given a Miranda warning; (2) his trial counsel were
ineffective; and (3) the prosecution engaged in misconduct. I
address each of Bennett’s arguments in turn.
A. Bennett’s Statements to the Police
Bennett argues that the trial court erred in admitting into
evidence statements that Bennett made to the police prior to
having been given a Miranda warning.2 Because the contested
statements were not the product of custodial interrogation, I
reject Bennett’s argument.
In Miranda v . Arizona, 384 U.S. 436 (1966), the Supreme
Court held that the prosecution may not use any statement at
trial that stems from “custodial interrogation” of the defendant,
unless the prosecution can show that the defendant was advised of
2 The Goffstown police eventually read Bennett his Miranda rights at the police station the morning of Goodman’s death. Bennett waived his rights. See Transcript (hereinafter “Tr.”) of jury trial, Day 4 , 3-4. Subsequently, the Goffstown police taped an interview with Bennett. Bennett argues that he was intoxicated at the time, and therefore his waiver was invalid. This argument is moot because the taped interview was never admitted into evidence. See Bennett, 737 A.2d at 643 (noting that the taped statement was never admitted into evidence).
-7- his Constitutional rights and knowingly and intelligently waived
those rights and agreed to answer questions. Id. at 444; see
United States v . Melendez, 228 F.3d 1 9 , 21-22 (1st Cir. 2000).
As the phrase “custodial interrogation” suggests, the
exclusionary rule established by Miranda applies only when the
prosecution seeks to introduce statements made by the defendant
while the defendant was: (1) in custody; and (2) under
interrogation. See Miranda, 384 U.S. at 444; United States v .
Vega-Figueroa, 234 F.3d 744, 749 (1st Cir. 2000).
In Rhode Island v . Innis, 446 U.S. 291 (1980), the Supreme
Court defined interrogation, for purposes of Miranda, to mean
“express questioning or its functional equivalent.” Id. at 300-
01. The court defined the latter phrase to mean “any words or
actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the
suspect.” Id. at 301.
Bennett identifies three statements, elicited on direct
examination by the prosecution, that he feels should not have
been admitted into evidence. I assume, for purposes of analysis,
that Bennett was in custody when he made each of these three
-8- statements. The question before me then is whether he was
subject to interrogation or its functional equivalent.
First, Officer Mackey testified as follows:
A : We were walking back to the second vehicle, which was Officer Tuttle’s, and he began saying some things to m e . He said – Q: What did he tell you? A : He said I killed him. They were going to take me in the woods and they were going to kill m e . Q: How did you respond to that? A : I asked him not to say anything else. He was under arrest. And that he shouldn’t say anything else because he hasn’t been read his Miranda rights.
Tr., Day 3 , 143.
Second, Officer Tuttle testified as follows:
Q: What happened when you got into your cruiser that night? A : Upon entering the cruiser the suspect identified me as Mr. Tuttle and said that he had had me as a substitute teacher at Goffstown High School. Q: Did the defendant make any other statements to you in the car, in the cruiser, on the way back to the Goffstown Police Department that night? A : He made some statements to me throughout the evening. Approximately four times he told me that or he made the comments, and these were voluntary comments that I did not solicit, that he didn’t mean to kill the bastard. He made one comment in addition to that that said I didn’t mean to kill the bastard, but better him than m e .
Tr., Day 3 , 171.
Third, Officer Tuttle also testified as follows:
Q : Other than referring to Mr. Goodman as a bastard, did– while he was you in the processing room, did he make any
-9- other spontaneous statements to you in a disparaging way about the victim in this case? A : He made a statement after the telephone calls. And he talked to me about how bored he was and that he was cold and so forth. And he said that he should be on the water instead of strangulated some asshole who needed i t . Q: Do you recall the exact words when he made that statement? A : Yes, I d o . Q: What were the defendant’s exact words when he made that statement? A : I believe he said that he should be on the water right now instead of strangulating some asshole who needed i t .
Tr., Day 3 , 173.
The Supreme Court has held that “volunteered statements
cannot properly be considered the result of police
interrogation.” Arizona v . Mauro, 481 U.S. 520, 529 (1987).
Accordingly, any voluntary statement, regardless of its
incriminatory nature, is admissible in evidence. See id.; Oregon
v . Elstad, 470 U.S. 298, 305 (1985); Innis, 446 U.S. at 299-300
(“Any statement given freely and voluntarily without any
compelling influences i s , of course, admissible in evidence.”
(quoting Miranda, 384 U.S. at 478)).
In this case, the uncontroverted testimony of Officers
Mackey and Tuttle establishes that Bennett spoke to them of his
own volition, without any prompting. See Singleton v . United
States, 26 F.3d 233, 239 (1st Cir. 1994). Accordingly, his
-10- statements can not be considered to be the product of custodial
interrogation or its functional equivalent. See Mauro, 481 U.S.
at 529. Therefore, I conclude that the trial court did not err
in admitting the contested statements into evidence. See id.
B. Ineffective Assistance of Counsel
Bennett argues that his trial counsel were ineffective for:
(1) failing to address the Miranda issues discussed above; (2)
appearing unprepared or nervous; (3) failing to object during the
prosecution’s direct examination of Officer Tuttle; and (4)
failing to object during the prosecution’s closing argument. I
address each argument in turn, after setting forth the applicable
law regarding ineffective assistance of counsel claims.
To prevail on his ineffective assistance of counsel claims,
Bennett must make a two-part showing. See Strickland v .
Washington, 466 U.S. 668, 687 (1984); Scarpa v . DuBois, 38 F.3d
1 , 8 (1st Cir. 1994). First, he must establish that his
counsel’s conduct was deficient, meaning that it was unreasonable
under prevailing professional norms. See Strickland, 466 U.S. at
688-90. This standard is difficult to meet because reviewing
courts begin with the presumption “that, under the circumstances,
the challenged action might be considered sound trial strategy.”
-11- Id. at 689 (internal quotation marks and citation omitted).
Bennett must overcome this deferential presumption in order to
meet the first part of the test. See id.
Second, Bennett must show his counsel’s asserted
deficiencies resulted in actual prejudice. See Strickland, 466
U.S. at 687; Scarpa, 38 F.3d at 8 . In other words, he must show
that there is a reasonable probability that, but for his
counsel’s conduct, the outcome of the trial would have been
different. See Strickland, 466 U.S. at 694; Scarpa, 38 F.3d at
8-9. A reasonable probability is “a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at
694.
In reviewing Bennett’s ineffective assistance of counsel
claims, I need not address both parts of the test if I conclude
that he cannot make a sufficient showing on one. See id. at 697.
1. The Miranda Issue
Bennett argues that his trial counsel’s “failure to address
the issue” of his Miranda rights constituted ineffective
assistance of counsel. Although his petition is unclear,
presumably he takes issue with his trial counsel’s failure to
object to the admission of the three incriminating statements
-12- Bennett made to members of the Goffstown Police Department. I
As discussed above, all of the contested statements were
properly allowed into evidence. Accordingly, any objection to
their admission would have been futile. “Effectiveness does not
require that counsel jump through every conceivable hoop, or
engage in futile exercises.” Singleton, 26 F.3d at 239 (quoting
United States v . Pellerito, 878 F.2d 1535, 1540 (1st Cir. 1985)).
Therefore, I conclude that Bennett’s trial counsel were not
ineffective for failing to raise a meritless Miranda objection.
See id. (finding no ineffective assistance of counsel for failing
to raise a Miranda objection where uncontroverted testimony
established that the defendant volunteered an admission to the
authorities).
2. Defense Counsel’s Preparation and Demeanor
Bennett points to a number of occasions during the trial
where his counsel appeared to be disorganized, unprepared, or
confused. These statements, he argues, show that his trial
counsel were ineffective.
The statements at issue include the following:
-13- When you said on direct, and I think that you said, and I wrote it down and I always get this stuff confused. Tr., Day 2 , 119.
That was a horrible question if you don’t understand i t . I’m going to change i t . And I think we’ve gone over it anyway. Tr., Day 2 , 132. I apologize for the delay. I’m afraid I’ve become a little disorganized here, but I hope not too much. Tr., Day 2 , 266.
I seem to have lost something, your Honor. If I may have a moment. Tr., Day 4 , 7 8 .
Bennett’s argument fails because defense counsel need not be
flawless to be effective. See, e.g., Dows v . Wood, 211 F.3d 480,
487 (9th C i r . ) , cert. denied, 121 S.Ct. (2000). The contested
statements merely reflect the difficulty inherent in preparing,
organizing, and articulately presenting a defense in a multi-day
criminal trial. See id. (holding that minor mistakes evincing
momentary confusion do not amount to objectively unreasonable
conduct). Moreover, counsel often make self-deprecating remarks
during trial in an attempt to appeal to the jury. I find no
indication in the record that defense counsel failed, due to
disorganization, unpreparedness or confusion, to thoroughly
examine and cross-examine witnesses or otherwise advance their
defense. Cf. Williamson v . Ward, 110 F.3d 1508, 1519-22 (10th
-14- Cir. 1997) (finding trial counsel to be ineffective where a lack
of investigation and preparation compromised the defense and left
counsel unprepared to respond to the prosecution’s objections).
Nor can I conclude that Bennett suffered any prejudice because of
a few verbal miscues by his trial counsel. See Strickland, 466
U.S. at 694; Scarpa, 38 F.3d at 8-9.
3. The Prosecution’s Examination of Officer Tuttle
Bennett claims that his trial counsel were deficient for
failing to object when the prosecution allegedly elicited false
testimony from Officer Tuttle on direct examination. The
testimony in question relates to a phone call made by Bennett to
Bohl from the police station the morning of Goodman’s death.
Bennett was unable to reach Bohl directly, but left a message on
her answering machine. The relevant section of the direct
examination is as follows:
Q: Do you recall what message he left for the woman named Jennifer?
A : The message that he left to Jennifer was, as close as I can get to what he said, was don’t try that on me again. The word bitch was used relative to that conversation. It was used either when he made the call or it was used right after the call. But he did make the statement in regards to what I said.
Tr., Day 3 , 172.
-15- Bennett correctly points out that the message he left on
Bohl’s machine was “don’t try that shit again on m e , woman.” See
Tr., Day 2 , 3 . Bennett argues that this fact renders Officer
Tuttle’s statement false and, therefore, objectionable.
I disagree. Bennett ignores the full testimony of Officer
Tuttle. Officer Tuttle testified that he recalled Bennett saying
the word “bitch” either during or right after leaving the message
on Bohl’s answering machine. Tr., Day 3 , 172. Therefore, his
testimony was not necessarily false in that he could have
correctly remembered that Bennett used the disputed word
immediately after the phone call. Accordingly, the prosecutor’s
conduct in eliciting this testimony was perfectly acceptable.
Moreover, the differences between Officer Tuttle’s testimony
concerning the message are minor and of no significance because
the tape of Bennett’s message was admitted into evidence.
Defense counsel reasonably decided not to object and instead made
a tactical decision to thoroughly cross-examine Officer Tuttle on
this matter. See Tr., Day 3 , 191-97; Strickland, 466 U.S. at
689.
4. The Prosecution’s Closing Argument
Bennett argues that his counsel’s failure to object to a
-16- number of statements made by the prosecutor during his closing
argument constitutes ineffective assistance of counsel. A
defense counsel’s decision not to object during closing argument
is generally considered to be a reasonable tactical decision.
See Santiago-Martinez v . United States, 993 F.2d 1530, 1993 WL
192818, at *4 (1st Cir. 1993)(per curiam)(table, text available
on Westlaw); United States v . Necoechea, 986 F.2d 1273, 1281 (9th
Cir. 1993) (“Because many lawyers refrain from objecting during
opening statement and closing argument, absent egregious
misstatements,” the decision not to object is not ineffective
assistance of counsel.) Moreover, because I conclude that none
of the prosecutor’s contested statements were improper and
therefore, any objection by defense counsel would have been
meritless, I reject Bennett’s argument. See United States v .
Victoria, 876 F.2d 1009, 1012-13 (1st Cir. 1989) (concluding that
defense counsel’s failure to raise meritless objections did not
constitute ineffective assistance of counsel); see also United
States v . Ortiz, 146 F.3d 2 5 , 28 (1st Cir. 1998) (stating that
defense counsel is not obliged to make a motion that would be of
no benefit to his client); Singleton, 26 F.3d at 239 (stating
that counsel need not raise meritless, futile claims).
-17- The first set of challenged statements were made as the
prosecution began to address Bennett’s defenses. The challenged
statements are indicated in bold below:
Judge Abramson will also tell you that there’s a second component to reckless conduct. And that is that the defendant also acts recklessly, yet because of the voluntary intoxication he was unaware of the risks of his conduct. This is because the law is that when somebody drinks excessively and puts the lives and safety of other people in jeopardy because of their drinking, they’re held responsible for that. Voluntary intoxication is no defense to reckless conduct. Its no excuse. If the defendant was unaware of what he was doing to Doug because he was drunk, he still acts recklessly. That’s the law . . . [Bennett] chose to drink that alcohol that night. There was no objective reasonable reason to be fearful. Any fear that he had that night was a product of his drinking. The law says that if you get drunk and you don’t know the consequences of your behavior, and you act because of that voluntary intoxication, that’s no excuse to reckless conduct.
Tr., Day 5 , 72-73; 75-76.
Bennett argues that the prosecutor exceeded the bounds of
permissible argument in these statements by arguing law to the
jury. I disagree.
The prosecutor’s statements were a correct statement of New
Hampshire law. See N.H. Rev. Stat. Ann. § 626:2, II(c) (2000)
(“A person who creates such a risk but is unaware thereof solely
-18- by reason of having voluntarily engaged in intoxication or
hypnosis also acts recklessly with respect thereto.”).
Accordingly, there was no need for defense counsel to object to
them. See Ortiz, 146 F.3d at 2 8 ; Victoria, 876 F.2d at 1012-13.
Moreover, any conceivable prejudice created by the prosecutor’s
statement was cured by the judge’s instruction: “[i]f the lawyers
have stated the law differently from the law as I explain it to
you, then you must follow my instructions and disregard the
statements of the lawyers.” Tr., Day 5 , 8 4 ; see United States v .
Ortiz, 23 F.3d 2 1 , 26 (1st Cir. 1994) (expressing confidence that
the judge’s instruction offset any potential prejudice from
prosecutor’s closing argument).
The second set of challenged statements involved the
prosecution’s attempt to drive home the point that Bennett
strangled Goodman for a long time, thus defeating any claim of
accident. Bennett finds fault with the prosecution’s repeated
references to the fact that Bennett strangled Goodman for
approximately twenty minutes. See Tr., Day 5 , 5 8 , 6 8 , 7 0 , 7 1 .
Bennett contends that the evidence admitted at trial does not
support this statement. I disagree.
There was substantial evidence in the record to support the
-19- prosecutor’s inference that Bennett strangled Goodman for
approximately twenty minutes. Bohl testified that Bennett
pressed his foot against the car horn shortly after he began
choking Goodman. Tr., Day 2 , 231-35. Sandra Chabot testified
that the noise from the horn woke her up somewhere between 12:45
and 12:50. Tr., Day 3 , 113-14. When Officer Mackey arrived at
the scene at approximately 1:11 a.m., Bennett still had his
forearm around Goodman’s neck. Tr., Day 3 , 131, 134. Since the
evidence clearly supported the inference that Bennett strangled
Goodman for approximately twenty minutes, the prosecutor was well
within his right to argue that inference to the jury. See United
States v . Hernandez, 218 F.3d 5 8 , 68 (1st Cir. 2000), cert.
denied, 121 S.Ct. 840 (2001) (“Prosecutors are free to ask the
jury to make reasonable inferences from the evidence submitted at
trial.”); New Hampshire v . Sylvia, 136 N.H. 428, 431 (1992) (“A
prosecutor may draw reasonable inferences from the facts proven .
. . and has great latitude in closing argument to summarize and
discuss the evidence presented to the jury.” (internal quotation
marks and citation omitted)). Therefore, defense counsel’s
decision not to object was a reasonable tactical decision. See
Ortiz, 146 F.3d at 2 8 ; Victoria, 876 F.2d at 1012-13.
-20- The third set of challenged statements are set forth in bold
below:
But things didn’t work out the way [Bennett] planned. He was very, very drunk. [Bohl] didn’t want him to spend the night in her room, in her bed. She didn’t want to sleep with him that night. He was drunk, he was a jerk, she wanted to take him home.
Tr., Day 5 , 6 0 .
Bennett argues that the evidence actually showed that Bohl
did want him to spend the night at her house. In support of this
argument, Bennett cites the testimony of Dan Biron who said that
he thought that Bennett would spend the night at Bohl’s house.
See Tr., Day 4 , 165.
Bennett fails to point out, however, that Bohl testified
that she told Bennett that she would bring Bennett home later
that night. Tr., Day 2 , 189-90, 195-96; see also Tr., Day 4 ,
141. Another witness confirmed that Bohl did not want Bennett to
stay the night and that she wanted to take him home. Tr., Day 2 ,
5 8 , 60-61. Given this evidence, the prosecutor’s statements were
clearly permissible. See Sylvia, 136 N.H. at 431 (“A prosecutor
. . . has great latitude in closing argument to both summarize
and discuss the evidence presented to the jury.” (internal
quotation marks and citation omitted)). Accordingly, defense
-21- counsel’s prudent decision not to object does not constitute
ineffective assistance of counsel. See Ortiz, 146 F.3d at 2 8 ;
Victoria, 876 F.2d at 1012-13.
The fourth disputed statement made by the prosecutor in his
closing argument is the reference, quoted above, to Bennett as a
“jerk.” Tr., Day 5 , 6 0 . In the context of explaining Bohl’s
desire not to have Bennett remain in her house or her bed, this
comment merely characterizes Bennett’s antisocial behavior that
evening. I can not say that this isolated comment, in this
context, exceeded the bounds of acceptable argument. Nor can I
say that defense counsel’s decision not to object, given the
evidence, was anything but sound trial strategy. See Ortiz, 146
F.3d at 2 8 ; Victoria, 876 F.2d at 1012-13.
Fifth, Bennett objects to the prosecutor’s statement that
Bennett was “jealous” of Goodman. Tr., Day 5 , 6 4 . This argument
lacks merit because the evidence in the record supports the
inference of jealousy raised by the prosecutor. Bohl testified
that, on many occasions when she told Bennett about other men she
was dating, he said that those men were “losers” who “weren’t
good enough” for Bohl. Tr., Day 2 , 182. Given these prior
remarks, it was reasonable for the prosecutor to suggest that
-22- Bennett might have been jealous of men, such as Goodman, who
expressed romantic interest in Bohl. See Hernandez, 218 F.3d at
6 8 ; Sylvia, 136 N.H. at 431. Given the reasonableness of the
prosecutor’s statements, the defense counsel exercised sound
trial strategy in deciding not to object to these statements.
See Ortiz, 146 F.3d at 2 8 ; Victoria, 876 F.2d at 1012-13.
Finally, Bennett objects to the following characterization
of Chabot’s testimony as to what she heard the night of Goodman’s
death:
And [Chabot] distinctly heard [Bennett] yell at Jennifer Bohl, scream at her, fuck you. Go ahead, call the cops. You heard [Chabot’s] description of that. She said he said it in a daring way.
Tr., Day 5 , 6 7 .
Bennett’s objection to these statements is misplaced. These
statements are virtually identical to the testimony of Chabot,
who stated that Bennett said “F-U, go ahead, call the police” and
that he sounded angry and very hostile, “[a]lmost like a dare
type of thing,” as if Bennett was daring Bohl to call the police.
Tr., Day 3 , 115. The prosecution’s correct restatement of
Chabot’s testimony was entirely appropriate. See Sylvia, 136
N.H. at 431. Accordingly, defense counsel’s decision not to
-23- object was sound trial strategy. See Ortiz, 146 F.3d at 2 8 ;
Victoria, 876 F.2d at 1012-13. Moreover, any conceivable
prejudice created by these statements was cured by the judge’s
instruction that the parties’ closing arguments were not
evidence. Tr., Day 5 , 8 4 ; see Ortiz, 23 F.3d at 2 6 .
4. Conclusion
After reviewing the record and the arguments raised by
Bennett, I conclude that the actions of Bennett’s trial counsel
fall squarely within the bounds of reasonable professional
conduct and in no way prejudiced the outcome of his trial. See
Strickland, 466 U.S. at 687. Accordingly, I conclude that he was
not denied the effective assistance of counsel. See id.
C. Prosecutorial Misconduct
Bennett claims that the prosecution’s comments and actions,
discussed above, constituted prosecutorial misconduct because
they prevented him from getting a fair trial.
To prevail on his claim of prosecutorial misconduct, Bennett
must show more than mere error or impropriety by the prosecution,
rather he must show that the error was so severe as to deprive
him of a fair trial. See Smith v . Phillips, 455 U.S. 209, 219
-24- (1982) (“the touchstone of due process analysis in cases of
alleged prosecutorial misconduct is the fairness of the trial,
not the culpability of the prosecutor”); Ferreira v . Fair, 732
F.2d 245, 249 (1st Cir. 1984). Bennett must establish that the
prosecution’s actions “so infected the trial with unfairness as
to make the resulting conviction a denial of due process.”
Darden v . Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly
v . DeChristoforo, 416 U.S. 637, 643 (1974)). In analyzing
Bennett’s claims, I must evaluate the prosecution’s actions in
light of the entire proceeding, not in isolation. See id. at
179-80; Donnelly, 416 U.S. at 643.
As discussed above, I conclude that none of the contested
statements or actions of the prosecutors were erroneous or
improper. Moreover, the trial record reveals a strong case
against Bennett, including, among other evidence: (1) the
eyewitness testimony of Bohl and Officer Mackey establishing that
Bennett strangled Goodman; and (2) the medical examiner’s expert
opinion that strangulation caused Goodman’s death. See, e.g.,
Tr., Day 2 , 227-28, 232-34 (testimony of Bohl); Day 3 , 134-36
(testimony of Officer Mackey); Day 4 , 46-47 (testimony of Dr.
Kaplan). Given the propriety of the prosecutors’ actions and the
-25- strength of the case against Bennett, I can not conclude that
Bennett was deprived of a fair trial. See Darden, 477 U.S. at
180-82 (finding, despite improper remarks by the prosecutor, that
defendant was not denied a fair trial).
IV. CONCLUSION
For the foregoing reasons, I conclude that Bennett’s
arguments lack merit. Accordingly, I dismiss Bennett’s petition
for a writ of habeas corpus, (Doc. N o . 1 ) .
SO ORDERED.
Paul Barbadoro Chief Judge
June 6, 2001
cc: Eric Bennett, pro se Ann M. Rice, Esq.
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