Doucette v. Warden, NHSP

2003 DNH 177

• Court: District Court, D. New Hampshire
• Decided: October 20, 2003
• Docket: CV-02-515-B
• Status: Published

Opinion

Doucette v. Warden, NHSP CV-02-515-B 10/20/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher Doucette

v. Civil No. 02-515-B Opinion No. 2003 DNH 177 Warden, N.H. State Prison, et a l .

MEMORANDUM AND ORDER

Christopher Doucette is serving a 37-year-to-life sentence

for second-degree murder and conspiracy to murder Leeann Millius.

He petitions the court for habeas corpus relief on Sixth and

Fourteenth Amendment grounds claiming that the trial court

improperly limited cross-examination of the prosecution's

principal witness and otherwise excluded evidence that the

witness had assaulted Millius approximately three weeks before

the murder. He also argues that his appellate counsel was

ineffective because he failed to consult with Doucette concerning

his appeal. Defendants seek summary judgment.

I. BACKGROUND

A. The Murders and The Arrests

The bodies of Millius and her friend Kimberly Farrah were discovered at a park in Salem, New Hampshire on September 13,

1997. Farrah's body was found in a bathhouse inside the park and

Millius's body was discovered along the shore of an adjacent

pond. Both women had been stabbed to death.

Farrah's car was recovered later that day and Doucette's

wallet and hat were found inside the car. When Doucette appeared

at his mother's home in Michigan the next day, she told him that

the police wanted to guestion him concerning the murders.

Doucette responded by telling her that he and two friends had

been "partying" with the women earlier in the evening but that

they had left them unharmed at approximately 4:00 a.m.

Doucette, Eric Jeleniewski, and James Grant were arrested on

September 15 at a trailer a few miles from Doucette's mother's

home. The three men had broken into the trailer and were wearing

shoes or boots that they had taken from the trailer. The police

later found three pairs of burned sneakers and several cans of

lighter fluid in the woods nearby. Doucette's fingerprint was on

one of the cans.

Grant later made a statement implicating himself,

Jeleniewski, and Doucette in the murders. The police also

determined that Jeleniewski had left a bloody fingerprint on

- 2 - Farrah's body and that Grant's watch contained a mixture of blood

matching his DNA and Farrah's. All three men were charged with

first degree murder. Grant agreed to cooperate with the police

and was allowed to plead guilty to a lesser charge. Jeleniewski

was convicted of murdering Farrah in a separate trial. Doucette

was charged only with Millius's murder.

B. Doucette's Trial

1. The Prosecution's Case

The prosecution based its case against Doucette largely on

testimony provided by Grant. Grant claimed that he, Jeleniewski

and Doucette had left their homes in Massachusetts and traveled

to Virginia in the weeks prior to the murders. On September 12,

they drove to Millius's home in Derry from Virginia and spent

most of the day and evening with her and her friend Farrah. At

some point that evening, Jeleniewski told Grant that he wanted to

kill both women and that Doucette had agreed to help. Grant

claimed that he didn't believe that Jeleniewski was serious but

nevertheless told him that he wanted nothing to do with the

killings. Later that evening, after Jeleniewski had lured Farrah

to the boathouse and stabbed her to death. Grant reluctantly

agreed to help Doucette kill Millius because he wanted to prevent

- 3 - her from becoming a witness against them. According to Grant,

Doucette retrieved the knife that Jeleniewski had earlier used to

kill Farrah, gave it to him, and held Millius while Grant stabbed

her in the throat. The two men then took turns restraining and

stabbing Millius until she was dead.

C. Doucette's Case

Doucette's attorneys conceded that Doucette was in the park

when the murders were committed but argued that Grant and

Jeleniewski committed the murders on their own. To support their

defense, they argued that the physical evidence linked Grant and

Jeleniewski to the murders but not Doucette. They also attempted

to explain Doucette's behavior after the murders by arguing that

he was motivated by fear that he would be falsely implicated in

the crimes rather than concern that his involvement would be

uncovered. Finally, they argued that Grant lied when he

testified at trial that Doucette had participated in Millius's

murder.

Doucette's lawyers attacked Grant's credibility on several

fronts. They demonstrated that he had made several false

statements to the police concerning the crimes - at first

claiming that the three men were innocent and then falsely

- 4 - claiming that Doucette was the one who had stabbed Millius in the

throat. They argued that his testimony did not make sense in

several areas, such as his claim that he had no plan to kill

Millius when he took the murder weapon from her room earlier in

the day, and his claim that Doucette gave him the knife after

Jeleniewski had killed Farrah but then begged Grant not to kill

him. They also argued that Grant was lying about Doucette's

involvement in the crimes to escape from the life sentence that

he would otherwise have received if he had been convicted of

first degree murder.

In a final assault on Grant's version of the murders,

Doucette's lawyers attempted to prove that Grant was angry with

Millius because she had rejected his advances and, therefore, his

real motive for killing Millius was jealousy rather than to

conceal Farrah's murder. Grant admitted during his direct

testimony and under vigorous cross-examination that he met

Millius the summer before the murders, that he was attracted to

her, and that she had spurned his sexual advances. He

acknowledged that he and Millius had guarreled approximately

three weeks prior to the murders and that he had sent her a page

calling her a "bitch." He admitted that he was upset that

- 5 - Millius had been interested in his best friend rather than him.

He also acknowledged that he thought that Millius was attracted

to Doucette and that the two may have had sex when they

disappeared into the woods together a few hours before the

murders. Nevertheless, he downplayed his jealousy and claimed

that he was no longer upset with Millius when the murders

occurred.

D. The Excluded Evidence

The prosecution moved prior to trial to exclude evidence

that Grant had pushed Millius to the ground and bloodied her

hands during the argument between them approximately three weeks

before the murders. The trial court limited Doucette's right to

cross-examine Grant concerning the physical assault and otherwise

excluded evidence of the assault pursuant to N.H. R. Evid. 403

because he concluded that the evidence was prejudicial and that

Doucette could demonstrate that Grant was angry and jealous

without introducing evidence of the physical component of their

argument.

E. Post-Trial Proceedings

After Doucette was convicted, his counsel unsuccessfully

- 6 - litigated a motion for new trial based on the trial court's

exclusion of the assault evidence. Counsel then filed a notice

of appeal on his behalf that raised three issues but did not

challenge the evidentiary exclusion. Doucette claims that his

counsel failed to consult with him concerning the appeal and that

he would have directed counsel to appeal the issue if he had been

consulted.

After Doucette's conviction was affirmed on appeal, Doucette

filed a motion for new trial raising the same issues that form

the basis of his present petition. The trial court denied his

motion and the New Hampshire Supreme Court rejected his attempt

to appeal.

II. ANALYSIS

Doucette raises two arguments in his habeas corpus petition.

First, he claims that the trial court violated his Sixth and

Fourteenth Amendment rights by denying him the right to guestion

Grant concerning the assault and by preventing him from proving

the assault through extrinsic evidence. Second, he argues that

he was denied the effective assistance of counsel because his

lawyer failed to consult with him concerning his appeal. I

- 7 - analyze each claim in turn using the now-familiar standards that

govern the review of habeas corpus claims.1 Because defendants

challenge Doucette's petition in a motion for summary judgment, I

construe the record in the light most favorable to him and will

enter summary judgment against him only if the undisputed

material facts demonstrate that he is entitled to judgment as a

matter of law.2 See Podiatrist Ass'n, Inc. v. La Cruz Azul de

1 A habeas corpus petitioner cannot prevail on an issue of federal law that was previously litigated in state court unless he demonstrates that state court's ruling: (1) "was contrary to" clearly established Supreme Court precedent; (2) "involved an unreasonable application of" such precedent; or (3) was based on "an unreasonable determination of the facts." 28 U.S.C. § 2254(d); c f . Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001) (§ 2254(d) applies only to federal claims adjudicated on merits in state court). A decision is contrary to Supreme Court precedent if it is "diametrically different" from or "mutually opposed" to such precedent. Jackson v. Coalter, 337 F.3d 74, 81 (1st Cir. 2003) (guoting Williams v. Taylor, 529 U.S. 362, 407 (2000). A decision involves an unreasonable application of Supreme Court precedent if it "either unreasonably extends a legal principal . . . to a new context where it should not apply or unreasonably refuses to extend that principal to a new context where it should apply." Id. Further, state court fact finding is sacrosanct unless "clear and convincing evidence" demonstrates that the state court resolved the facts incorrectly. 28 U.S.C. § 2254 (e) (1) .

2 Doucette argues that he is entitled to an evidentiary hearing on his claims because factual disputes exist concerning "the timing and nature of the assault, the impact of the evidence of the assault on the jury, and the ineffectiveness of counsel. . . ." Pet.'s Opp. to Mot. for Summ. J. at 9. I disagree with Puerto Rico, 332 F.3d 6, 13 (1st Cir. 2003) (describing summary

judgment standard).

A. Exclusion of Evidence Claim

A defendant has a constitutional right both to cross-examine

the witnesses who testify against him and to present evidence in

his own defense. See Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986); United States v. Scheffer, 523 U.S. 303, 308 (1998).

Neither right, however, is absolute. Instead, trial judges

retain broad discretion to impose reasonable limitations on both

cross-examination and the presentation of evidence. See

Delaware, 475 U.S. at 679; Fortini v. Murphy, 257 F.3d 39, 46

(1st Cir. 2 001).

Here, the trial judge excluded the assault evidence because

he determined that other evidence available to Doucette could

prove that Grant was angry with Millius and any potential

additional probative value of the assault evidence was

Doucette's argument insofar as it bears on his challenge to the exclusion of the assault evidence. I have accepted Doucette's proffer concerning the timing and nature of the assault and have determined de novo that the trial court's exclusion of the assault evidence was not unreasonable and, in any event, was harmless. Thus, an evidentiary hearing is not necessary on this issue because the factual disputes Doucette cites are not material to my ruling. substantially outweighed by the risk that the jury would

improperly conclude that Grant had a propensity for violence.

While I do not share the trial court's concern about the possible

prejudicial effect of the assault evidence, I cannot say that his

balancing of probative value and prejudicial effect was

unreasonable because, as I will explain, the probative value of

the assault evidence was minuscule.

I recognize that evidence that an important prosecution

witness had a motive to commit the crime will often be highly

probative because such evidence can suggest that the crime was

committed by someone other than the defendant. Here, however.

Grant admitted that he helped kill Millius and the guestion

before the jury thus was whether he and Jeleniewski had acted

alone or with Doucette's help. Given Grant's admission, the

value of the assault evidence was largely limited to its

usefulness for credibility purposes in contradicting Grant's

claim that he was not angry with Millius on the night of the

murders. Doucette, however, was allowed to cross-examine Grant

extensively concerning his motive to commit the crime and he was

successful in eliciting substantial evidence to support his

theory that Grant was not truthful when he claimed that he was no

- 10 - longer angry with Millius. In light of this evidence, the added

value of the assault evidence was minimal. Thus, the trial

court's exclusion of the evidence did not violate Doucette's

constitutional rights.

More fundamentally, any error that the trial court committed

was harmless. Claims that a trial judge erroneously limited

cross examination or excluded evidence warrant habeas relief only

if they had a "substantial and injurious effect or influence in

determining the jury's verdict." Brecht v. Abrahamson, 507 U.S.

619, 631 (1993). Given Doucette's admission to his mother that

he. Grant, and Jeleniewski had been with Millius and Farrah on

the evening of the murders and Doucette's incriminating conduct

after the crime, the jury had strong evidence to corroborate

Grant's testimony that Doucette had helped him kill Millius.

Moreover, given the wide latitude that Doucette was given to

attack Grant's testimony on cross examination, the trial court's

decision to prevent Doucette from guestioning Grant about the

assault could not possibly have affected the jury's assessment of

Doucette's culpability. Accordingly, I grant defendants' motion

for summary judgment with respect to Doucette's Sixth Amendment

claim.

- 11 - B. Ineffective Assistance of Counsel Claim

An ineffective assistance of counsel claim can only be

successful if petitioner shows "(1) that counsel's representation

'fell below an objective standard of reasonableness,' and (2)

that counsel's deficient performance prejudiced the defendant."

Roe v. Flores-Qrtega, 528 U.S. 470, 476-77 (2000), quoting

Strickland v. Washington, 466 U.S. 668, 688 (1984). To show

prejudice, petitioner must establish that "there [was] a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694. Petitioner bears the burden of

showing both ineffectiveness and prejudice. Scarpa v. DuBois, 38

F .3d 1, 8-9 (1st Cir. 1994).

While Doucette concedes that his appellate counsel filed a

notice of appeal on his behalf raising several issues, he faults

counsel for failing to consult with him concerning the grounds

for his appeal. Whether this alleged failure to consult

constitutes a denial of Doucette's right to effective assistance

of counsel is unclear. An attorney has a duty to consult with

the defendant about the initial filing of a notice of appeal

"when there is reason to think either (1) that a rational

- 12 - defendant would want to appeal . . . or (2) that this particular

defendant reasonably demonstrated to counsel that he was

interested in appealing." Roe, 528 U.S. at 480. However, the

question of which grounds to raise in the appeal itself is a

tactical choice for the attorney, not the client. Smith v.

Murray, 477 U.S. 527, 136 (1986) (the "process of 'winnowing out

weaker arguments on appeal and focusing on' those more likely to

prevail, far from being evidence of incompetence, is the hallmark

of effective appellate advocacy." (quoting Jones v. Barnes, 463

U.S. 745 751,752 (1983)). Whether the duty to consult concerning

the filing of an appeal, which was recognized in Roe, also

includes a right to consultation concerning the grounds for the

appeal is a subject that the parties have not briefed. Further,

this potentially difficult legal issue would be moot if, after an

evidentiary hearing, I were to determine that counsel consulted

with Doucette concerning the possible grounds for an appeal.

Thus, rather than attempt to resolve this issue now, I want to

obtain a better understanding of the underlying facts. In

particular, I would like to know whether counsel completely

failed to consult with Doucette concerning his appeal, or instead

whether counsel merely failed to specifically discuss whether an

- 13 - appeal should be taken from the court's ruling on the assault

evidence. Accordingly, I deny defendants' motion for summary

judgment with respect to this issue without prejudice and direct

the clerk to schedule this matter for an evidentiary hearing

concerning Doucette's ineffective assistance of counsel claim.

Evidence presented at this hearing shall be limited to whether

counsel consulted with Doucette concerning the issues that should

be raised on appeal.

IV. CONCLUSION

For the reasons set forth herein, I grant defendants' motion

for summary judgment (Doc. No. 9) with respect to Doucette's

exclusion of evidence claim and deny the motion without prejudice

with respect to his ineffective assistance of counsel claim.

SO ORDERED.

Paul Barbadoro Chief Judge October 20, 2003

cc: Thomas J. Butters, Esg. Ann M. Rice, Esg. Mark F. Sullivan, Esg.

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