Dereritt v. Warden, NHSP CV-03-535-JD 12/23/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Demeritt
v. Civil No. 03-535-JD Opinion No. 2004 DNH 186 Warden, New Hampshire State Prison
O R D E R
Robert Demeritt seeks habeas corpus relief, pursuant to 28
U.S.C. § 2254, from his conviction on charges of negligent
homicide and reckless conduct and his confinement on consecutive
sentences of three-and-one-half to seven years.1 The charges
against Demeritt arose from an automobile collision that resulted
in the death of the driver of the other car involved. Following
preliminary review, twelve of Demeritt's thirteen claims were
approved for service on the Warden. Both the Warden and Demeritt
move for summary judgment.2
1The court notes that although Robert Demeritt signs his last name as "DeMeritt," he uses both "Demeritt" and "DeMeritt" in his court filings. The state court used "Demeritt." To avoid confusion, this court will also use "Demeritt."
2The Warden failed to file a response to Demeritt's motion. Discussion
The Warden contends that six of the issues raised by
Demeritt have been procedurally defaulted. Demeritt agrees that
two of the issues, whether the trial judge's failure to recuse
herself and whether the presentence investigation report deprived
him of due process, were procedurally defaulted. The court
addresses the remaining claims as follows.
A. Procedural Default
The procedural default doctrine is a corollary of the
exhaustion reguirement, both of which arise from "the general
principle that federal courts will not disturb state court
judgments based on adeguate and independent state law." Dretke
v. Haley, 124 S. C t . 1847, 1852 (2004). Therefore, "[i]n all
cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adeguate state
procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice." Coleman v.
Thompson, 501 U.S. 722, 750 (1991). A decision based on a state
2 procedural rule is an independent and adequate state ground for
purposes of the procedural default doctrine "so long as the state
court consistently applies its . . . rule and has not waived it
in the particular case by basing the decision on some other
ground." Horton v. Allen, 370 F.3d 75, 80-81 (1st Cir. 2004) .
1. Amendment of indictment and consecutive sentences.
The Warden contends that Demeritt procedurally defaulted his
claims that the indictment against him was improperly amended and
that the consecutive sentences were improper. The Warden argues
that procedural default occurred when the New Hampshire Supreme
Court "denied" Demerrit's pro se brief on direct appeal and those
issues were not raised in the appeal filed by his counsel.3 The
only indication of the supreme court's decision is a notation in
the state court docket that the pro se brief was denied. No
reason for the decision is given in the docket, and the decision
itself, if a written decision issued, is not part of the record
here.
"Generally, a federal habeas court defers to a state court's
3Demeritt was represented by counsel who filed a notice of appeal and a brief. Counsel also filed a motion to accept Demeritt's pro se brief. The notation in the court docket is: "Pro se brief denied." No other indication is given as to the court's decision on the issues raised in Demeritt's pro se brief.
3 articulation of a state law ground for a decision." Torres v.
Dubois, 174 F.3d 43, 46 (1st Cir. 1999) . On the other hand, if
the state court decision appears to be based on federal law or to
be interwoven with federal law, the federal court presumes that
no independent and adequate state law ground exists for the
decision. Brewer v. Marshall, 199 F.3d 993, 999-1000 (1st Cir.
1997). When the state court asserts a state law basis for its
decision, the federal habeas court must ascertain whether the
judgment is based on an independent and adequate state ground.
Coleman, 501 U.S. at 736.
Here, because the state supreme court gave no reason for its
decision, no state law ground was articulated as the basis for
the decision. Nor is there a lower state court decision that
articulates a reason for the decision. C f . Gunter v. Mahoney,
291 F.3d 74, 80 (1st Cir. 2002). The Warden characterizes the
supreme court's denial as a refusal to accept Demeritt's pro se
brief on procedural grounds either because it was filed pro se or
because the claims were not raised in the trial court. The
notation in the docket, however, does not indicate either of
those reasons or any other reason. The New Hampshire Supreme
Court reserves its discretion as to whether to allow a defendant
to proceed pro se on appeal. See State v. Thomas, 150 N.H. 327,
332 (2003). Under these circumstances, where the record lacks
4 any indication that the supreme court's decision was based on an
independent and adequate state law ground, the Warden's argument
for procedural default is not well-supported.
The Warden also contends that these claims were not
exhausted. See, e.g., Asadoorian v. Ficco, 2004 WL 1932753, at
*3-*4 (D. Mass. Aug. 23, 2004). Demeritt presented claims
pertaining to the indictment and the consecutive sentences in his
pro se supplemental brief as part of his direct appeal to the New
Hampshire Supreme Court, referencing both the state and federal
law bases for the claims. See Baldwin v. Reese, 124 S. C t . 1347,
1350-51 (2004) (discussing "fair presentation" requirement of
exhaustion). The New Hampshire Supreme Court then denied the
brief without addressing the claims and without giving reasons
for its decision. In the absence of an explanation to the
contrary, it appears that the supreme court exercised its
discretion not to consider the claims.4 Therefore, these claims
appear to have been fairly presented to the state courts and,
therefore, are exhausted.
41he Warden also argues that Demeritt failed to raise these claims to the trial court but cites Demeritt's objection to the state's motion to substitute and Demeritt's motion to dismiss, which raise the same issues. The trial court denied Demeritt's motion to dismiss in the margin without explanation. Therefore, it appears that these claims were raised before but rejected by the trial court.
5 2. Lost evidence.
Demeritt claimed on appeal to the New Hampshire Supreme
Court that the state lost or destroyed potentially exculpatory
evidence. Demeritt, 148 N.H. at 435. In briefing that issue,
however, Demeritt failed to properly identify what evidence was
lost or destroyed and instead directed the court to 150 pages of
the trial transcript. Id. The court held that "[b]ecause the
defendant's brief does not adeguately identify the evidence he
claims was lost or destroyed, we decline to address the issue."
Id.
In this proceeding, the Warden contends that the claim was
procedurally defaulted when the supreme court did not address the
issue of lost or destroyed evidence on the ground that Demeritt
had not properly presented his claim. Neither the supreme court
nor the Warden cited case law, a court rule, or a statute to
support the court's decision not to address the issue. A review
of New Hampshire Supreme Court precedent demonstrates, however,
that the court consistently declines to address issues that are
not adeguately briefed or presented in the record. See, e.g..
State v. King, 151 N.H. 59, 64 (2004); State v. Blackmer, 149
N.H. 47, 49 (2003); In re Thayer, 146 N.H. 342, 347 (2001).
Because the supreme court declined to address the issue of lost
or destroyed evidence due to Demeritt's failure to properly
6 present the claim, which is a state-law procedural ground
consistently applied by the New Hampshire Supreme Court, the
claim is procedurally defaulted. Demeritt has not suggested that
cause for the default exists or that he suffered actual
prejudice, nor has he demonstrated that failure to consider this
issue will result in a fundamental miscarriage of justice.
3. Excited utterance.
Demeritt challenges the trial court's decision to allow a
statement as an excited utterance that was made by an
unidentified person at the scene of the accident. On appeal, the
New Hampshire Supreme Court ruled that because the defense raised
the federal constitutional issue for the first time on appeal and
did not raise the issue at trial, it would not address the
federal challenge. Demeritt, 148 N.H. at 441-42. "It is a long
standing rule that parties may not have judicial review of
matters not raised in the forum of trial." Bean v. Red Oak Prop.
Mgmt., Inc., 855 A.2d 564, 565 (N.H. 2004). Therefore, Demeritt
procedurally defaulted that claim, and it will not be addressed
7 B. Review of the Remaining Claims
The events that led to the charges brought against Demeritt
began on the morning of August 17, 1998, in an incident of
apparent "road rage." Witnesses traveling in a car on Route 152
in Nottingham, New Hampshire, at about 7:45 a.m. were passed by a
Subaru that was traveling at a high rate of speed and was closely
followed by a white van. Demeritt, 148 N.H. at 437. Greg
Scanlon was driving the Subaru, and Robert Demeritt was driving
the van. Id. The witnesses testified that the van appeared to
be chasing the Subaru. Id.
Other witnesses testified that the van was traveling in the
wrong lane on Route 152, forcing oncoming vehicles off of the
road. Id. When Demeritt attempted to steer back into the
appropriate lane, he struck the Subaru, causing it to hit a
telephone pole and a tree. Id. at 437-38. Scanlon, the single
occupant of the Subaru, was killed instantly. Demeritt stopped
the van on the other side of Route 152. Id. at 438.
The chief of police in Nottingham arrived within minutes of
the accident. Id. Demeritt identified himself as the driver of
the van. Id. Someone at the accident scene told the chief that
the van pushed the Subaru off of the road. Id. Demeritt told
the chief that the Subaru was speeding up when he tried to pass
and would then slow down. Id. He said: "'Up here, I bumped it off the road.'" Id. The chief told Demeritt not to say any more
and to stand by his cruiser. When a state trooper arrived at the
scene and tried to talk with Demeritt, he refused to talk to him.
Demeritt was indicted on charges of manslaughter and
reckless conduct. Id. He was acguitted on the manslaughter
charge, but convicted of the lesser-included offense of negligent
homicide. Id. He was also convicted of reckless conduct. Id.
When the trial judge discovered that juror misconduct had
occurred in the course of the trial, she granted Demeritt's
motion to vacate the convictions. Demeritt was retried on
charges of negligent homicide and reckless conduct and was
convicted on both charges. Id. On appeal, the New Hampshire
Supreme Court affirmed his convictions.
Demeritt then filed for a writ of habeas corpus in this
court. The following claims raised in his petition will be
reviewed here:
1. Whether the indictment used in Demeritt's second trial,
which was altered to charge negligent homicide and reckless
conduct without the charge of negligent homicide having been
submitted to a grand jury, was invalid.
2. Whether Demeritt's consecutive sentences on his
convictions violate the prohibition against double jeopardy. 3. Whether retrial using the original indictment, which
charged manslaughter, violated the prohibition against double
jeopardy.
4. Whether the New Hampshire Supreme Court's decision
affirming as harmless error the trial court's decision to allow
evidence of Demeritt's silence is either contrary to or an
unreasonable application of Chapman v. California, 386 U.S. 18
(1967) .
5. Whether disclosure of Demeritt's prior record violated
his right to a fair trial under Chambers v. Mississippi, 410 U.
2 84 (1983), and Spencer v. Texas, 385 U.S. 554 (1967).
6. Whether the trial court's decision not to admit Greg
Scanlon's prior convictions for reckless driving violated
Demeritt's right to a fair trial under Crane v. Kentucky, 476
U.S. 683 (1986) .
7. Whether the trial court's refusal to give a jury
instruction on the New Hampshire statute prohibiting passing on
the right violated due process.
8. Whether the trial court's decision to exclude Demeritt
female companion from part of the view of the accident scene
violated his Sixth Amendment right to a fair trial.
In a case brought pursuant to § 2254, the federal court
reviews claims that were adjudicated on the merits by the state court under a deferential standard. Allison v. Ficco, 388 F.3d
367, 369 (1st Cir. 2004). Under that standard, "the petitioner
must show that the decision of the state courts was either
'contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States; or . . . that [the decision] was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding[s]'" Id. (guoting §
2254(d)). If, on the other hand, the petitioner raised a federal
claim in state court that was not adjudicated on the merits, the
deferential standard does not apply and, instead, this court
reviews the claim de novo. Horton v. Allen, 370 F.3d 75, 80 (1st
Cir. 2 004).
1. De Novo Review
Because the New Hampshire Supreme Court did not address the
claims raised in Demeritt's pro se brief, those claims were not
adjudicated on the merits. Therefore, Demeritt's claims that the
indictment was invalid and that his consecutive sentences violate
double jeopardy are reviewed de novo.
11 a. Indictment.
Demeritt contends that the indictment used in his second
trial was improperly amended because the court clerk marked out
"manslaughter" and wrote in "negligent homicide" and marked out
"recklessly" and wrote in "negligently." He argues that charging
the lesser included offense of negligent homicide broadened the
grounds by which he could be convicted and, therefore, reguired
indictment by a grand jury. See United States v. Miller, 471
U.S. 130, 138-45 (1985). He does not claim that he received
insufficient notice of the charge on which he was tried and
convicted. C f ., e.g., Hartman v. Lee, 283 F.3d 190, 194 (4th
Cir. 2002) (petitioner claimed indictment insufficient because it
lacked some elements of the offense charged); Bae v. Peters, 950
F.2d 469, 477-78 (7th Cir. 1991) (discussing difference between
Fifth and Fourteenth Amendment reguirements).
Although the Fifth Amendment includes a right to have
charges presented to a grand jury in certain criminal cases, that
right has not been construed to apply to the states through the
Fourteenth Amendment. See Apprendi v. New Jersey, 530 U.S. 466,
477, n.3 (2000); Hurtado v. California, 110 U.S. 516 (1884);
LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002); Campiti v.
Matesanz, 186 F. Supp. 2d 29, 53 (D. Mass. 2002). As Demeritt
points out, the New Hampshire Constitution also protects a
12 defendant from being convicted of a crime that is not charged in
an indictment. See State v. Glanville, 145 N.H. 631, 633 (2002) .
Federal habeas relief pursuant to § 2254, however, is available
only for violations of federal law. § 2254(a); Bae, 950 F.2d at
477. Therefore, Demeritt is not entitled to relief under § 2254
based on his claim that the indictment was invalid because the
state failed to have him indicted on the charge of negligent
homicide.
b. Consecutive sentences.
Demeritt was convicted of negligent homicide and reckless
conduct. He was sentenced to consecutive sentences of three-and-
one-half to seven years. He contends that the consecutive
sentencing effectively punished him twice for the same offense,
in violation of the constitutional protection against double
jeopardy, and was an unconstitutional enhancement of his sentence
in violation of the Sixth Amendment under Apprendi v. New Jersey,
530 U.S. 466 (2000) .
"The Double Jeopardy Clause guarantees that no person shall
'be subject for the same offence to be twice put in jeopardy of
life or limb.'" Gonzalez v. Justices of Mun. Court of Boston,
382 F.3d 1, 7 (1st Cir. 2004) (guoting U.S. Const, amend. V).
The Fifth Amendment prohibition against double jeopardy applies,
13 through the Fourteenth Amendment, to state prosecutions. Id.
Part of the protection is that a defendant may not be sentenced
to multiple punishments for the same offense. Id.
Demeritt contends that his consecutive sentences on his
convictions of negligent homicide and reckless conduct violate
double jeopardy because he is being punished twice for the same
act. He argues that the events on the morning of August 17,
1998, when he was speeding after Greg Scanlon on R t . 152, driving
in the wrong lane into oncoming traffic, and then forcing the
Subaru off the road, were one transaction which would permit only
one punishment. The facts do not support Demeritt's argument.
He was convicted of negligent homicide for forcing Greg
Scanlon off the road, which caused Scanlon's death. See RSA
630:1, I. He was convicted of reckless conduct for crossing a
double yellow line and driving in the wrong lane on R t . 152 into
oncoming traffic, which forced other drivers off the road. See
RSA 631:3, I. Those are two separate offenses, based on
different conduct. Therefore, Demeritt was convicted of and
sentenced for two separate offenses arising from separate acts,
not one transaction as he claims.
Demeritt also argues that because the trial judge decided to
impose his sentences consecutively, rather than concurrently, she
effectively enhanced his sentence without having a jury determine
14 facts to support the enhancement. He contends that such an
"enhancement" violates Apprendi.
In Apprendi, the Supreme Court held that a "fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490. Other courts have concluded
that consecutive sentencing does not violate Apprendi as long as
each sentence is not longer than the statutory maximum for that
crime. See e.g.. United States v. Noble, 299 F.3d 907, 909-10
(7th Cir. 2002); State v. Higgins, 149 N.H. 290, 303 (2003).
Negligent homicide and reckless conduct are both Class B felonies
which, under New Hampshire law, have maximum penalties of seven
years. See RSA 630:3, II; RSA 631:3, II; RSA 651:2, 11(b).
Therefore, the maximum statutory penalty for each crime is seven
years, and Demeritt was not sentenced to more than the statutory
maximum for each crime. Demeritt's consecutive sentences do not
violate the Sixth Amendment restrictions found in Apprendi.
2. Contrary to or an unreasonable application of federal
law .
Demeritt's remaining claims were adjudicated on the merits
in state court. Therefore, those claims are reviewed using the
deferential standard under which this court determines whether
15 the state court's decision on each issue was either contrary to
or an unreasonable application of federal law.5 Allison, 388
F.3d at 369. "A state court's decision is 'contrary to' our
clearly established law if it 'applies a rule that contradicts
the governing law set forth in our cases' or if it 'confronts a
set of facts that are materially indistinguishable from a
decision of this Court and nevertheless arrives at a result
different from our precedent.'" Mitchell v. Esparza, 124 S. C t .
7, 15-16 (2003) (guoting Williams v. Taylor, 529 U.S. 362, 405-06
(2000)). "The 'unreasonable application' clause of § 2254(d) (1)
applies when the 'state court identifies the correct governing
legal principle from this Court's decisions but unreasonably
applies that principle to the facts of the prisoner's case.'"
Holland v. Jackson, 124 S. C t . 2736, 2737 (2004) (guoting
Williams, 529 U.S. at 413) . Whether the decision is
unreasonable is "assessed in light of the record the court had
before it." Id.
5 A habeas application may also be premised on a claim that the decision was based on an unreasonable determination of the facts, but that ground is not at issue here. Allison, 388 F.3d at 369.
16 a. Double jeopardy.
Demeritt contends that the prohibition against double
jeopardy was violated when the prosecution retried him using the
same indictment that had been used in his first trial, which
charged him with manslaughter. He argues that because he was
found guilty of negligent homicide rather than manslaughter, the
retrial constituted double jeopardy. The New Hampshire Supreme
Court held that both the federal and state constitutions "have
long been interpreted to allow a second trial when a defendant
procures a reversal of his first conviction." Demeritt, 148 N.H.
446 (citing United States v. Ball, 163 U.S. 662 (1896), and Burks
v. United States, 437 U.S. 1, 12-15 (1978)).
First, despite Demeritt's attempts to confuse the issues, he
was not retried for manslaughter. He was convicted of negligent
homicide and reckless conduct in the first trial, and then
successfully moved to vacate the convictions after the trial
court discovered juror misconduct. He was retried on charges of
negligent homicide and reckless conduct.
Since Demeritt was not retried for manslaughter, the double
jeopardy issues he raises did not occur in his case. See Price
v. Georgia, 398 U.S. 323, 332 (1970) . As the supreme court held,
his retrial fell within the jurisprudence of Ball and Burks. See
also Sattazahn v. Pennsylvania, 537 U.S. 101, 112-13 (2003).
17 Therefore, the state court's decision was neither contrary to nor
an unreasonable application of federal law as determined by the
Supreme Court.
b. Harmless error.
On appeal, Demeritt challenged the trial court's ruling that
permitted the prosecution to introduce evidence that he refused
to talk to a state trooper at the accident scene. The New
Hampshire Supreme Court ruled that the Fourteenth Amendment, as
interpreted in Doyle v. Ohio, 426 U.S. 610, 616-20 (1976),
applied so that evidence of Demeritt's silence was inadmissible
because the police chief told him not to say anything. Demeritt,
148 N.H. at 440. Having found error in the trial court's
decision, the supreme court then considered whether the error was
harmless.6 Id.
The supreme court applied the state-law harmless error
standard and considered whether the state had shown, beyond a
reasonable doubt, that the erroneously admitted evidence did not
61he court notes that Demeritt was not under arrest nor had he been warned under the reguirements of Miranda v. Arizona, 384 U.S. 436, 467-73 (1966), when he refused to talk to the trooper. Instead, the chief of police told Demeritt not to say anything. Therefore, his refusal to talk to the trooper was in the context of the chief's prior instruction, and these circumstances certainly mitigated any error in allowing the evidence.
18 affect the verdict. Id. After reviewing the evidence, the
supreme court concluded that "[a]longside this abundance of
direct evidence demonstrating reckless and negligent driving, the
testimony of the defendant's silence introduced by the State was
relatively unimportant," and held that the error was harmless
beyond a reasonable doubt Id. at 440-41.
Demeritt contends that the supreme court's harmless error
analysis was contrary to and an unreasonable application of the
federal harmless error standard in Chapman v. California, 386
U.S. 18 (1967). The Chapman standard applies on direct appeal to
determine whether a preserved constitutional error was harmless.
Sanna v. DiPaolo, 265 F.3d 1, 14 (1st Cir. 2001) . On collateral
review, however, "a federal habeas court is bound to uphold a
state court judgment, notwithstanding trial-type federal
constitutional error, so long as that error did not have a
'substantial and injurious effect or influence in determining the
jury's verdict.'"7 Fryar v. Bissonette, 318 F.3d 339, 342 (1st
7A trial error--unlike a structural defect in the prosecution such as total deprivation of the right to trial counsel--occurs during the presentation of evidence to the jury and therefore may be "guantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." United States v. Downs-Moses, 329 F.3d 253, 267-68 (1st Cir. 2003) (guoting Arizona v. Fulminante, 499 U.S. 279, 308 (1991)).
19 Cir. 2003) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)).
Assuming that the supreme court was correct that admitting
the testimonial evidence of Demeritt's silence was a violation of
the Fourteenth Amendment under Doyle, in the context of this
case, any such error was harmless. Demeritt was convicted of
negligent homicide and reckless conduct. To find him guilty of
negligent homicide, the jury had to find, beyond a reasonable
doubt, that he negligently caused Greg Scanlon's death by failing
to be aware of a substantial and unjustifiable risk that his
conduct might cause Scanlon's death. See State v. Liakos, 142
N.H. 726, 730-31 (1998). To find Demeritt guilty of reckless
conduct, the jury had to find, beyond a reasonable doubt, that he
was aware of and disregarded a substantial and unjustifiable risk
that serious bodily injury would result when he crossed the
double yellow line and drove on the wrong side of the road into
oncoming traffic. See State v. Hull, 149 N.H. 706, 713 (2003).
Demeritt did not dispute that he tried to pass Scanlon by
crossing the double yellow line and driving on the wrong side of
the road alongside of Scanlon and into oncoming traffic.
Demeritt, 148 N.H. at 440. He also did not dispute that he came
into contact with Scanlon's car when he tried to move back into
that lane. Id. He admitted to the police chief that he "bumped"
20 Scanlon's car off of the road. Id. Witnesses testified at trial
that Demeritt was traveling at high speed in the wrong lane when
the accident happened. Id.
Nevertheless, Demeritt argues that evidence of his silence
undermined his credibility as to his testimony about events
leading up to the accident. He does not explain the significance
of those events in light of the evidence of the circumstances of
the accident. The court agrees that given "the abundance of
direct evidence demonstrating reckless and negligent driving, the
testimony of [Demeritt's] silence introduced by the State was
relatively unimportant." Id. Therefore, if an error occurred,
admission of the evidence of Demeritt's silence "did not have a
substantial and injurious effect or influence in determining the
jury's verdict." Fryar, 318 F.3d at 342 (internal guotation
marks omitted).
c. Admission of Demeritt's prior convictions.
Demeritt was convicted on three charges of felonious sexual
assault in 1988. He was released in 1992 after serving his
sentence. The trial court ruled that the prosecution could
introduce evidence of Demeritt's convictions for impeachment
purposes but only as felony assaults, omitting any referenceto
the sexual nature of the crimes. The New Hampshire SupremeCourt
21 held that admission of the convictions was permissible under New
Hampshire Rule of Evidence 609(b) and affirmed the trial court's
discretionary decision to admit that evidence. Demeritt, 148
N.H. at 442-43.
For purposes of habeas review, Demeritt argues that
admission of his prior convictions violated his right to a fair
trial. He represents that the convictions were for non-violent
statutory sexual assault and, therefore, that the convictions had
no probative value because they do not pertain to his credibility
or driving. He also contends that their admission was unfairly
prejudicial because felony assault suggests violence.
The Supreme Court has held that a defendant who testifies on
his own behalf may be impeached by proof of prior convictions
without offending due process. Ohio Adult Parole Auth. v.
Woodard, 523 U.S. 272, 287 (1998) (citing Spencer, 385 U.S. at
5 61)); see also Marshall v. Lonberger, 459 U.S. 422, 438 n.6
(1983); Leno v. Gaughan, 664 F.2d 314, 315 (1st Cir. 1981).
Because the defense asked the trial court to describe the prior
offenses as felony assaults rather than felonious sexual assault,
Demeritt cannot now claim that the reguested designation violated
due process. Further, as the supreme court noted, defense
counsel brought out the information at trial that the prior
convictions did not involve driving. Therefore, the supreme
22 court's decision upholding the trial court's evidentiary ruling
is not contrary to federal law.
d. Failure to allow evidence of Scanlon's prior
convictions.
At trial, defense counsel sought to introduce evidence,
during cross examination of Scanlon's wife, of his prior
convictions for reckless driving and disobeying a police officer,
two speeding tickets, and his certification as a habitual
offender. The trial court denied the reguest. On appeal, the
supreme court ruled that the evidence was properly excluded under
New Hampshire Rules of Evidence 404(a) and (b) .
Demeritt argues that the trial court's ruling deprived him
of a fair opportunity to present a defense. See Crane v.
Kentucky, 476 U.S. 683, 689-91 (1986). Demeritt's theory was
that Scanlon was the aggressor in the events that led to the
accident and that his "reckless character" was an essential
element of that defense. The supreme court held, however, that
under state law, a victim's aggressive character was not an
element of a claim of self defense. Demeritt, 148 N.H. at 444.
Therefore, since the evidence of Scanlon's prior driving record
was not an element of Demeritt's self defense claim, the
exclusion of the evidence of Scanlon's record did not deprive him
23 of an opportunity to present his defense.
e. Failure to give jury instruction.
Demeritt contends that the trial court's failure to give
his requested instruction on the New Hampshire statute pertaining
to passing on the right, RSA 265:19, violated due process. He
argues that the statute was pertinent to his defense that Scanlon
caused the accident by overtaking him on the right. The supreme
court reviewed the claim under state law without addressing the
federal due process issue.
Although criminal defendants have a constitutional right to
have a meaningful opportunity to present a complete defense, that
right does not require that a defendant's requested instructions
be given to the jury. See Gilmore v. Taylor, 508 U.S. 333, 342-
43 (1993). Further, as the New Hampshire Supreme Court noted,
Demeritt's "own testimony established that the accident occurred
when the defendant tried to pass Scanlon on the left. Without
evidence that Scanlon attempted to pass [Demeritt] on the right,
we do not see any grounds for reading RSA 265:19 to the jury."
8Further, even if the exclusion of Scanlon's record had been constitutionally erroneous, any error was harmless. Demeritt does not contest that he "bumped" Scanlon's car off the road rather than slowing or otherwise avoiding his car. Therefore, the absence of Scanlon's driving record "did not have a substantial and injurious effect or influence in determining the jury's verdict." Fryar, 318 F.3d at 342.
24 Demeritt, 148 N.H. at 445. As due process would not require the
jury instruction Demeritt requested, no due process violation
occurred. The supreme court's decision is not contrary to
federal law.
f. Exclusion of female companion.
A friend of Demeritt's attended the jury's view of the
accident scene. After the friend did not heed the judqe's
instructions to stand back and not to let the jury overhear her
conversation with Demeritt, the judqe told the friend to sit in
her car until the view was completed. Demeritt contends that the
exclusion of his friend from the second part of the view violated
his riqht to have a public trial. The New Hampshire Supreme
Court found no merit in the arqument. Id.
Demeritt cites Waller v. Georgia, 467 U.S. 39 (1984), in
support of his claim to a right to have the view open to the
public. In Waller, the Supreme Court held that a criminal
defendant's Sixth Amendment right to a public trial extended to a
pretrial suppression hearing. Id. at 47. This court has not
found, and Demeritt has not cited, any Supreme Court case
applying the same requirement to a view of the scene in the
course of a criminal trial.
Demeritt's claim is not the same as the suppression hearing
issue decided in Waller, where the court discussed all of the
25 reasons the public trial rule would apply to a suppression
hearing. The New Hampshire Supreme Court found that even if the
rule in Waller were to apply in the context of a view, the
partial exclusion of Demeritt's friend was not tantamount to
closing the view to the public. That determination is neither
contrary to nor an unreasonable application of Waller.
Furthermore, a trial judge has a duty to see that the jury does
not overhear comments of bystanders concerning a case. After due
warning, the trial judge had the authority to remove Demeritt's
friend from the scene to protect the integrity of the jury
without violating Demeritt's right to a public trial.
Conclusion
For the foregoing reasons, the warden's motion for summary
judgment (document no. 14) is granted. The petitioner's motion
for summary judgment (document no. 17) is denied. The
petitioner's reguest for a writ of habeas corpus is denied.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. United States District Judge
December 23, 2004 cc: Robert DeMeritt Sr., pro se Nicholas P. Cort, Esguire