Cassell v. State of NH CV-95-593-JD 04/15/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jerome E. Cassell
v. Civil No. 95-593-JD
State of New Hampshire
O R D E R
The petitioner, Jerome Cassell, brought this action under 28
U.S.C. § 2254, seeking a writ of habeas corpus. Before the court
is the motion for summary judgment of the respondent, the State
of New Hampshire (document no. 106).
Background
Following a jury trial and based primarily on the testimony
of his victim, the petitioner was convicted in Strafford County
Superior Court in August 1992 for having committed aggravated
felonious sexual assault in violation of N.H. Rev. Stat. Ann.
("RSA") § l 632-A:2.'1 He currently is serving a seven-and-one-half
to fifteen year sentence at the New Hampshire State Prison.
Following his conviction, the petitioner appealed his
conviction to the New Hampshire Supreme Court and also filed a
'in an order on the petitioner's motion to set aside his conviction and for a new trial, the trial judge opined that the victim was among "the most credible witnesses [he had] ever encountered," and described her testimony as "compelling." motion for a new trial and to set aside his conviction in
Strafford County Superior Court. After this motion was denied,
the petitioner appealed the decision to the New Hampshire Supreme
Court. The New Hampshire Supreme Court consolidated his post
conviction claim with his direct appeal and, on October 24, 1995,
affirmed the plaintiff's conviction. The court expressly
addressed only the petitioner's claim that the trial court
committed reversible error by failing to instruct the jury on the
proper use of his prior convictions for property-related
offenses2 and summarily rejected the petitioner's remaining
twenty-eight claims. See State v. Cassell, 140 N.H. 317 (1995).
While his appeals were pending, the petitioner also filed a
petition for a writ of habeas corpus in state court and a
petition for a writ of mandamus to the New Hampshire Supreme
Court. The trial court denied the habeas petition, and the New
2Under New Hampshire law, a trial judge ordinarily must instruct the jury about the proper use of a defendant's previous convictions if such evidence is elicited on cross-examination for impeachment purposes. See State v. Skidmore, 138 N.H. 201, 202, 636 A.2d 64, 65 (1993). However, because the petitioner's previous convictions came to light during his direct testimony and because the petitioner did not make a reguest for a limiting instruction, the New Hampshire Supreme Court ruled that none was reguired in the petitioner's case. See State v. Cassell, 140 N.H. 317, 318, 666 N.H. 953, 954 (1995) (noting that "the trial court could reasonably have determined that the [petitioner's] counsel elicited this information as a matter of trial tactics and that counsel did not want to call further attention to it through an instruction to the jury").
2 Hampshire Supreme Court denied both the appeal of that denial and
the mandamus petition, without prejudice to the petitioner's
rights to raise his properly preserved claims in his appeal. The
instant petition was filed on December 11, 1995.
Discussion
The court has gleaned ten separate categories of arguments
from the petitioner's voluminous pleadings in support of his
assertion that he is "in custody pursuant to the judgment of a
State court . . . in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C.A. § 2254(a) (West
1994). The court considers the petitioner's assertions
seriatim.3
328 U.S.C. § 2254(d) was amended effective April 24, 1996, to provide that
[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.
The United States Supreme Court has granted certiorari to determine whether the amendment to § 2 2 5 4 (d) applies to habeas petitions, such as the current one, that were pending as of April
3 A. Fifth Amendment Violation
The petitioner first asserts that his conviction was
obtained in violation of his right against self-incrimination
because certain statements he made to James Trueman, the chief of
police of Middleton, New Hampshire, were admitted into evidence.
Specifically, the plaintiff objects to Trueman's testimony
concerning a telephone conversation between the petitioner and
Trueman about the alleged assault after the petitioner had been
taken into custody, and to testimony concerning a conversation
about the assault between the petitioner and Trueman while
Trueman was driving the petitioner to his arraignment.
The petitioner's claims are without merit. Distinct from a
petitioner's rights under Miranda v. Arizona, 384 U.S. 436, 474
(1966), the Fifth Amendment "limits prosecutors' ability to use
testimony that has been compelled." Baltimore City Dep't of
Social Servs. v. Boukniqht, 493 U.S. 549, 562 (1990) (collecting
cases). The petitioner has offered no factual or legal basis to
support his contention that he was compelled to provide
24, 1996. See Lindh v. Murphy, 117 S. C t . 726 (1997), granting cert, to Lindh v. Murphy, 96 F.3d 856, 861-68 (7th Cir. 1996) (holding that amendment applies to habeas petitions filed prior to April 24, 1996). Because the petitioner has failed to establish that he would be entitled to habeas relief either under the current § 2254 or under the more deferential pre-amendment standard of review, the court need not address the retroactivity guestion currently before the Supreme Court.
4 information to Trueman during a telephone conversation during
which he was free to hang up. See generally United States v.
Lawrence, 889 F.2d 1187, 1189 (1st Cir. 1989) (statement is
compelled if it is result of physical or psychological pressures
that can override defendant's wil l ) . As to the petitioner's
contention concerning his conversation about the alleged assault
with Trueman en route to his arraignment, it was the petitioner
who introduced evidence of the statements he made during that
conversation.4 Because no prosecution witness, including
Trueman, testified that the petitioner made incriminating
statements during this conversation, it follows that no compelled
testimony was used against the petitioner.
B. Violation of Petitioner's Miranda Rights
The petitioner next contends that his statements during the
above-mentioned conversations with Trueman were erroneously
admitted because he was not read his Miranda rights prior to the
commencement of custodial interrogation. These contentions also
4During cross-examination, the petitioner testified that he told Trueman on the way to his arraignment that the victim had rubbed his back on the day of the alleged assault. On rebuttal, Trueman denied that the petitioner made the statement in guestion, and testified that he informed the petitioner of his Miranda rights and cautioned him not to talk about the case as soon as he started to do so.
5 are unavailing. As noted above, the statements made in the car
were introduced by the petitioner, and thus are not subject to
Miranda's exclusionary rule. As to the introduction of the
statements made by the petitioner during his telephone
conversation with Trueman, the record indicates that these
statements were elicited by the prosecution during its rebuttal
for the purpose of impeaching the petitioner's trial testimony
suggesting that (1) the victim had rubbed the petitioner's back
on the day that the sexual assault was alleged to have taken
place; and (2) the petitioner had seen the victim walking on the
side of the road on the day of the assault, appearing to be
"crazy-eyed." The court finds no error in the admission of this
evidence for the purpose of impeaching the petitioner's
testimony. See Harris v. New York, 401 U.S. 222, 226 (1971).
C. Prosecutorial Misconduct
1. Closing Argument
The petitioner claims that the prosecutor accused defense
counsel of being a liar, made prejudicial remarks about the
petitioner, and vouched for the credibility of prosecution
witnesses during his closing argument. However, the court has
reviewed the prosecutor's closing argument and finds no evidence
that prosecutorial misconduct "so poisoned the well that a new
6 trial is required." United States v. Manning, 23 F.3d 570, 574
(1st Cir. 1994) (citation and quotation marks omitted). Althouqh
at one point the prosecutor suqqested to the jury durinq his
closinq arqument that the evidence presented by the defendant was
"an attempt to mislead you, to mischaracterize what the evidence
in this case is about and they've done it throuqhout the case"
and at other times used similar rhetoric, the trial judqe
cautioned the jury that
attorneys are allowed to make arquments as to what they believe the evidence has shown and what they believe the law is but it is not appropriate or proper to say that an attorney is attemptinq or tryinq to mislead anybody. If one side arques that the other side's evidence is misleadinq or a witness is tryinq to be misleadinq, that's one thinq but it is not appropriate, you should not return any verdict based on any statement that you think came from [the prosecutor] that [defense counsel] is attemptinq to mislead by either his questions or by his defense.
In liqht of the content and context of judqe's curative
instructions and the strenqth of the victim's direct testimony
aqainst the petitioner, the court cannot conclude that the
prosecutor's conduct was likely to have affected the trial's
outcome. See i d . (identifyinq relevant factors).
7 2. Use of Perjured Testimony and Conspiracy to Convict the Petitioner
Relying on various inconsistencies in the testimony
introduced at trial, the petitioner asserts that the prosecution
knowingly introduced perjured testimony. Relatedly, the
petitioner contends that the prosecution was involved in an
overarching conspiracy to convict him that included the
alteration and fabrication of evidence and the nondisclosure of
exculpatory evidence. The court has reviewed these claims and
finds them to be without any evidentiary support and therefore
without merit. See, e.g.. United States v. Lebon, 4 F.3d 1, 2
(1st Cir. 1993) (per curiam) (citing Tapia v. Tansy, 926 F.2d
1554, 1563 (10th Cir. 1991)).
D. Ineffective Assistance of Counsel
The petitioner next contends that he was denied the
effective assistance of counsel guaranteed by the Sixth Amendment
because trial counsel was burdened with a conflict of interest
and because trial counsel made a series of errors at or in
preparation for trial.5
5In assessing this claim, the court notes that at the hearing on his motion for a new trial and to set aside his conviction, the petitioner refused to permit the prosecutor to guestion his trial counsel, citing attorney-client privilege. In Cuvier v. Sullivan, the Supreme Court held that a
criminal "defendant who shows that a conflict of interest
actually affected the adequacy of his representation need not
demonstrate prejudice in order to obtain relief." 446 U.S. 335,
349-50 (1980). However, the court cautioned that "until a
defendant shows that his counsel actively represented conflicting
interests, he has not established the constitutional predicate
for his claim of ineffective assistance." I d . at 350. Here, the
petitioner has offered only his bare assertion that his trial
counsel defrauded him out of money, apparently by moving to
withdraw after the entry of the verdict against the defendant.
The petitioner's allegation is insufficient to warrant an
inference that counsel actively represented conflicting
interests, and thus does not constitute a meritorious basis for
habeas relief.
To succeed on his claim of ineffective assistance of counsel
based on counsel's deficient performance at or in preparation for
trial, the petitioner must show "both that trial counsel's
performance fell below an objective standard of reasonableness,
and that counsel's deficient performance was so prejudicial as to
undermine confidence in the outcome of the trial." Argencourt v.
United States, 78 F.3d 14, 16 (1st Cir. 1996) (citing Strickland
v. Washington, 466 U.S. 668, 688-89 (1984)). The court's inquiry into the reasonableness of counsel's performance is highly
deferential and reflects a "strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance." I d . (guotation marks omitted). In order to satisfy
the "prejudice" prong, the petitioner "must affirmatively prove a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
I d . (guoting Strickland, 466 U.S. at 694 (guotation marks
omitted)).
At least three of the petitioner's seven separate
assignments of error by trial counsel rest on misunderstandings
of the applicable law. Although the petitioner claims that trial
counsel should have objected to the introduction of one
prosecution witness's testimony concerning the victim's
reputation for truthfulness, this evidence was admissible because
the petitioner's trial counsel had previously attempted to
undermine the victim's credibility by suggesting that she had
fabricated her story. See N.H. R. Evid. 608(a). Similarly, as
noted supra, trial counsel's failure to move prior to trial for
suppression of the petitioner's statements made during a
telephone call with Trueman did not constitute deficient
performance because the statements were properly admitted for
impeachment purposes. Finally, the record indicates that trial
10 counsel did not confuse New Hampshire Rules of Evidence 404 and
609. Despite trial counsel's submission of a motion in limine to
suppress the petitioner's prior convictions, these convictions
were admitted under Rule 609, at the trial court's discretion,
for the purpose of impeaching the petitioner's credibility.
Turning to the petitioner's remaining claims of ineffective
assistance of counsel, the court will not second-guess trial
counsel's decision to bring to the jury's attention the fact that
the petitioner was incarcerated after being arrested. The
petitioner refused to permit his trial counsel to testify during
his postconviction hearing in state court and therefore has
necessarily limited the information available to the court to
assess his ineffective assistance claims. The court will not
speculate about the strategic decisions of counsel. In any
event, the references to the petitioner's incarcerated status
were limited to his brief incarceration following his arrest for
the crime with which he was charged, and both defense counsel and
the trial judge emphasized to the jury that the petitioner was
innocent until proven guilty. Under these circumstances, and in
light of the strength of the victim's testimony, there is no
reasonable probability that the outcome would likely have been
different but for trial counsel's decision.
Nor does the court find fault with trial counsel's closing
11 argument. Although the petitioner has characterized it as a
"hodge-podge of musings of different defense theories," the
record indicates that trial counsel's closing argument exposed
several inconsistencies in the prosecution's case and fell within
the wide realm of competent representation.
Finally, as to the petitioner's contentions that trial
counsel failed to object to certain out-of-court statements made
by the victim, in spite of his prolific filings he has failed to
carry his burden of identifying the unobjected-to statements in
guestion and of establishing the prejudice resulting from their
admission. Similarly, as to the petitioner's contention that
trial counsel failed to elicit opinion testimony of his good
character, he has failed to establish that such testimony would
have been reasonably likely to change the outcome of the trial.
E. Trial Court's Abuse of Discretion and Misinterpretation of the Law
This assertion relates to the petitioner's contention that
the trial judge improperly admitted evidence of his prior
convictions under N.H. R. Evid. 609 for the purpose of impeaching
his credibility. However, as noted supra, the petitioner has
failed to demonstrate that this evidence was improperly admitted.
Moreover, it is well-settled that "habeas review does not
12 ordinarily encompass garden-variety evidentiary rulings,"
Palmariello v. Superintendent of M.C.I. Norfolk, 873 F.2d 491,
494 (1st Cir. 1989), and that habeas relief is only available to
correct evidentiary errors of constitutional magnitude, see Allen
v. Snow, 635 F.2d 12, 15 (1st Cir. 1980) (error must "so infuse
the trial with inflammatory prejudice as to render a fair trial
impossible" (guotation marks omitted)). The introduction of the
petitioner's prior convictions, which were unrelated to the crime
with which he was charged and admitted solely for impeachment
purposes, does not rise to such a level.
F. Improper Introduction of Evidence
The petitioner next contests the admission of evidence
indicating that the petitioner was incarcerated as a result of
the victim's allegations of sexual assault. However, as noted in
the court's discussion of the petitioners's ineffective
assistance of counsel claim, the admission of this evidence was
not so prejudicial as to undermine confidence in the outcome of
the trial, let alone to "so infuse the trial with inflammatory
prejudice as to render a fair trial impossible."
To the extent the petitioner's evidentiary claim is based on
the introduction of perjured testimony and the trial court's
decisions concerning the admissibility of certain evidence, the
13 claim is denied for the reasons set forth in parts C.2. and E,
supra, respectively. To the extent the plaintiff's claim is
based on his assertion that the evidence adduced at trial,
namely, the victim's testimony that she was raped by the
petitioner, is insufficient to support his conviction, this claim
is without merit. See infra part H.
G. Judicial Bias
The petitioner's next argument is that the trial judge
failed to preside over his trial and over his sentencing in an
impartial manner. In support of his argument, the petitioner
points to the comments made by the judge in responding to the
petitioner's reguest for a new attorney prior to the commencement
of his sentencing hearing,6 and to the fact that the judge's
6In granting the petitioner's reguest for a continuance and the petitioner's attorney's motion to withdraw, the trial judge stated to the petitioner:
I'm going to continue this case, we're going to appoint a lawyer for you. But no matter what you do--let me make it clear to you right now. You can fire your next lawyer, you can throw a knife at your lawyer, your next lawyer can insult you until you're blue in the face. You're either going to be represented by that lawyer or you're going to represent yourself at the final [sentencing] hearing. You call off any witnesses, you do anything on your own that delays that, you might as well face the conseguences. Do you understand that?
The judge later informed the petitioner that his sentencing
14 daughter was the assistant attorney general of state of New
Hampshire at the time of the petitioner's trial.7
A habeas petitioner alleging a denial of due process based
on judicial bias must prove either that the judge actually was
biased against the petitioner, or that the appearance of bias is
"so substantial as to create a conclusive presumption of actual
bias." Fero v. Kerbv, 39 F.3d 1462, 1478 (10th Cir. 1994)
(guotation marks omitted); see also Bracv v. Gramlev, 81 F.3d
684, 688 (7th Cir. 1996), cert, granted, 117 S. C t . 1726 (1997).
None of the examples of bias asserted by the petitioner, whether
considered individually or collectively, satisfy this standard.
The trial judge made the statements about which the petitioner
has complained in response to the petitioner's reguest for a
continuance of his sentencing, which the petitioner filed after
having lodged a disciplinary complaint against his second
attorney and informing the court that he was unprepared to
proceed without a new attorney. Although the trial judge clearly
was frustrated with the petitioner's actions, he granted the
petitioner's reguest for a new attorney and gave him a full
hearing would not be delayed again "for any reason short of nuclear attack."
7In addition, the judge's son-in-law worked for the public defender's office.
15 opportunity to prepare for his sentencing hearing. With respect
to the petitioner's assertion that the judge should have recused
himself because of his daughter's and son-in-law's employment
with the New Hampshire Attorney General's office and the Public
Defender's office, respectively, this claim does not present a
sufficiently substantial bias to reguire recusal. C f . Fero, 39
F.3d at 1479 (no conclusive presumption of bias where trial
judge's son worked as law clerk in district attorney's office and
attended trial); Dyas v. Lockhart, 705 F.2d 993, 997 (8th Cir.
1983) (no conclusive presumption of bias where judge was uncle of
prosecuting attorney and brother and father of two deputy
prosecuting attorneys who participated in trial) .
H. Constitutionality of Conviction Under RSA § 632-A:2
The petitioner contends that his conviction under RSA § 632-
A:2 is unconstitutional because it was obtained solely on the
basis of the victim's testimony, without any corroborating
physical evidence.8 This claim is without merit. As noted
above, the victim gave "compelling" testimony that she was
8RSA § 632-A:6 provides: "The testimony of the victim shall not be reguired to be corroborated in prosecutions under this chapter." RSA § 632-A:6 (1986). To the extent the petitioner reguests a declaration that this provision is unconstitutional, the court declines to create such a blanket rule.
16 sexually assaulted by the petitioner, and the court's review of
the trial transcript confirms this conclusion. Under these
circumstances, the court cannot conclude that "no rational trier
of fact could have found proof of guilt beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979); c f .
Gilbert v. Parke, 763 F.2d 821, 826 (6th Cir. 1985) (rape
victim's testimony that habeas petitioner forced her to enter
car, drove her to secluded area, and raped her sufficient to
sustain conviction).
I. Instructions to Jury Concerning Petitioner's Prior Convictions
The petitioner next asserts that habeas relief is warranted
because the trial court failed to instruct the jury concerning
the proper use of his prior convictions.9 To the extent this
argument presents a due process claim that might entitle him to
habeas relief, it is unavailing. The petitioner has provided,
and the court has found, no support for the proposition that due
process entitles a defendant who has not made a reguest for a
cautionary instruction concerning the use of prior convictions to
such an instruction. Because the court is not empowered to
9As noted supra, evidence of the petitioner's two prior property-related convictions were elicited during the petitioner's direct examination.
17 create new rules of criminal procedure on habeas review either
under the case law established prior to the April 24, 1996,
amendments to § 2254, see Teague v. Lane, 489 U.S. 288, 310
(1989), or under the 1996 amendments, see 28 U.S.C.A.
§ 2254(d)(1) (West Supp. July 1996), the petitioner's argument
fails.
J. Pre-Sentence Report
The petitioner's final contention is that the trial judge
improperly relied on a pre-sentence report prepared by a
probation officer whose supervisor, a former parole officer for
the petitioner, had been named by the petitioner in a federal
conspiracy complaint. However, the petitioner has failed to
articulate any evidentiary basis to support his allegation of
bias on the part of the probation officer who prepared the report
or his supervisor, and has not presented to the court any factual
inaccuracies in the report.10
10The court notes that the petitioner declined to meet with the probation officer who was preparing the report and opted not to read it prior to his sentencing.
18 Conclusion
For the foregoing reasons, the respondent's motion for
summary judgment (document no. 106) is granted. The clerk is
ordered to close the case.
SO ORDERED.
Joseph A. DiClerico, Jr, Chief Judge
April 15, 1997
cc: Jerome E. Cassell Jeffrey S. Cahill, Esguire