Lavallee v . Warden, NH State Prison CV-02-174-JM 01/07/03 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Randy Lavallee
v. Civil N o . 02-174-JM Opinion N o . 2003 DNH 001 Jane Coplan, Warden New Hampshire State Prison, et a l .
ORDER
Petitioner Randy Lavallee is currently serving a sentence at
the New Hampshire State Prison for Men (“NHSP”). In this action,
Lavallee seeks a federal writ of habeas corpus claiming that the
New Hampshire state courts improperly refused him relief after
determining that certain exculpatory evidence was not disclosed
timely in his criminal case. Lavallee argues in his petition
that the state court decisions are contrary to clearly
established federal law under Brady v . Maryland, 373 U.S. 83
(1963), and its progeny.
The Respondent in this action is Jane Coplan, NHSP Warden.1
1 The New Hampshire Attorney General was served as an additional Respondent. Under 28 U.S.C. § 2252, the state attorney general must be provided notice prior to a hearing on a petition for a writ of habeas corpus, but need not file an answer. See Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts Respondent filed a motion for summary judgment on Lavallee’s
petition under Rule 11 of the Rules Governing § 2254 Cases and
Rule 56 of the Federal Rules of Civil Procedure. Respondent
contends that the record demonstrates that there is no genuine
issue of material fact, and that she is entitled to judgment as a
matter of law. Lavallee filed an objection.
Based upon my review of the parties’ submissions, I find
that the State of New Hampshire (the “State”) was responsible for
a violation of Lavallee’s constitutional right to discover
exculpatory evidence. I further find the Court may not determine
whether there is a reasonable probability that had the
exculpatory evidence been disclosed timely the result of
Lavallee’s criminal trial would have been different without
reviewing the entire state court record. Accordingly, for the
reasons set forth below, Respondent’s motion for summary judgment
is denied.
Background
When Lavallee’s stepdaughter, Alicia, was sixteen years old,
she reported to the police that Lavallee regularly molested her
when she was between the ages of twelve to fourteen years old.
(“Rules Governing § 2254 Cases”). 2 The State commenced a criminal investigation against Lavallee and
referred the matter for investigation to the New Hampshire
Department of Health and Human Services, Division of Children,
Youth and Families (“DCYF”). DCYF instituted an abuse and
neglect proceeding against Alicia’s mother. DCYF placed Alicia
in foster care and remained in contact with Alicia through the
time of Lavallee’s criminal trial.
Lavallee was indicted by a grand jury on multiple counts of
sexual assault. Prior to trial in the Hillsborough County
Superior Court, Lavallee moved for a court order requiring DCYF
to disclose its records pertaining to Alicia. Lavallee contended
that it was likely that the records contained exculpatory
evidence. The trial court agreed with Lavallee and ordered that
the entire DCYF file be disclosed to the parties. See T r . of
Hr’g on Pending Mot., Hillsborough County Super. C t . (Lynn, J . ) ,
Jan. 2 8 , 1998, at p p . 32-33. The trial court justice stated at
the hearing on Lavallee’s motion, “I’ll leave it to you, M r .
Harding [the prosecutor], to contact [DCYF]; and I’ll issue an
order saying that they turn that file over to the parties . . .
.” Id. DCYF forwarded the file to the prosecutor’s office,
which provided the file to the defense.
3 The criminal case against Lavallee was tried before a jury
over five days in February 1998. Alicia was the State’s primary
witness. The defense used portions of the DCYF file during
cross-examination. Following the close of evidence, while the
jury was deliberating, a DCYF employee notified the prosecutor
that some records from the DCYF file were omitted when the file
was originally turned over to the prosecutor’s office. The
undisclosed records consisted of 39 pages of typed and
handwritten notes detailing contacts between a DCYF caseworker
and Alicia, her family, and foster-care providers beginning
shortly after the accusations against Lavallee were made and
continuing through the time of trial. The prosecutor promptly
informed the defense and the trial court of the omitted evidence.
After reviewing the newly produced DCYF records, Lavallee’s
counsel moved for dismissal of the indictments based on the
Supreme Court’s decision in Brady v . Maryland. The defense
argued that the undisclosed records contained impeachment
evidence that supported the defense theory that Alicia fabricated
the allegations against Lavallee. After a hearing, the trial
court denied Lavallee’s motion. The trial court analyzed
Lavallee’s arguments under Brady v . Maryland and State v . Laurie,
4 139 N.H. 325, 653 A.2d 549 (1995), and made the following rulings
on the record:
Well, first of all, I don’t think that –- [DCYF] is an agent of the State for purposes of the Brady rule in this case. So for that reason alone, I don’t think that your request would have any merit. Secondly, I don’t think that this material rises to the level of Brady material which would make a reasonable probability of a different result, . . . . I don’t think the things you’ve pointed to rise to the level of material necessary to meet a Brady –- the Brady test of reasonable probability of a different result. By and large, the material is cumulative and really doesn’t add a heck of a lot with regard to . . . what is already in the evidence. And the other matters you relate t o , they’re, in my opinion, not so weighty as to produce a reasonable probability of a different result if there were a guilty verdict on one or more of the charges. So the motion is denied.
Tr. of Jury Trial (Day 5 ) , Hillsborough County Super. C t .
(Hollman, J . ) , Feb. 1 2 , 1998, at p p . 21-22. Lavallee was
convicted on all charges except on a charge of second-degree
assault, on which he was acquitted.
On April 2 0 , 1998, Lavallee filed a pro se motion to set
aside the verdict. The trial court denied the motion on November
2 , 1998 following a two-day hearing. Lavallee was then sentenced
to serve 22 and ½ to 45 years at NHSP.
Lavallee filed an appeal in the New Hampshire Supreme Court.
On November 2 2 , 2000, the court affirmed the convictions.
5 Lavallee filed a motion for reconsideration of that decision, but
the court denied the motion on January 3 1 , 2001.
On February 6, 2001, Lavallee filed a motion for a new trial
in the trial court. The trial court denied the motion after a
hearing on April 1 3 , 2001. The trial court denied Lavallee’s
motion to reconsider that decision on May 2 5 , 2001. The New
Hampshire Supreme Court declined to accept an appeal on
Lavallee’s motion for a new trial on July 1 7 , 2001.
Lavallee filed his petition for a federal writ of habeas
corpus on April 1 6 , 2002.
Standard of Review
Summary judgment is appropriate in a habeas proceeding when
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). A genuine issue is one “that properly can be
resolved only by a finder of fact because [it] . . . may
reasonably be resolved in favor of either party.” Anderson v .
Liberty Lobby, Inc., 477 U.S. 2 4 2 , 250 (1986). A material fact
is one that affects the outcome of the suit. See id. at 248.
6 Lavallee’s petition is subject to the standards of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), P.L. N o .
104-132, 110 Stat. 1214 (1996). Under the AEDPA, the federal
courts may not grant a writ of habeas corpus to a state prisoner
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 t o , or involved an unreasonable application o f , clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d) (West 2002).
Lavallee contends that this Court should give his federal
claim de novo review because the New Hampshire Supreme Court did
not separately address the merits of that claim. On direct
appeal, the court considered Lavallee’s arguments under Part I ,
Article 15 of the New Hampshire Constitution.2 The court stated:
2 Part I , Article 15 of the New Hampshire Constitution is entitled Right of Accused. The Article provides in relevant part:
Every subject shall have a right to produce all proofs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defense, by himself, and counsel. No subject shall be arrested, imprisoned, despoiled, or deprived of his
7 “‘Because Part I , Article 15 of the New Hampshire Constitution is
at least as protective of the defendant’s rights as the Due
Process Clause of the Fourteenth Amendment, . . . we do not
engage in a separate federal analysis.’” State v . Lavallee, 145
N.H. 4 2 4 , 4 2 7 , 765 A.2d 6 7 1 , 672-673 (2000) (quoting State v .
Marti, 143 N.H. 6 0 8 , 6 1 1 , 732 A.2d 4 1 4 , 417 (1999)). Thus, the
court expressly indicated that it did not conduct a separate
analysis of Lavallee’s federal claim.
If the New Hampshire Supreme Court were the only state court
that considered Lavallee’s federal claim, I would agree with his
argument that this Court should give his claim de novo review.
It is clear, however, that the trial court adjudicated the merits
of Lavallee’s claim. The trial court held a hearing on
Lavallee’s Brady claim during which it analyzed the merits of the
claim and made findings on the record. The trial court’s
decision on Lavallee’s claim was an adjudication on the merits to
property, immunities, or privileges, put out of protection of the law, exiled or deprived of his life, iberty, or estate, but by the judgment of his peers, or the law of the land.
N.H. Rev. Stat. Ann., Constitution of New Hampshire, Part I , Art. 15 (Equity Follows The Law Publishing C o . 1988 e d . ) .
8 which this Court must give deference under 28 U.S.C. § 2254(d). 3
I. Supreme Court Precedent on Disclosure of Exculpatory Evidence
In Brady v . Maryland, the Supreme Court found that “the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment irrespective of the
good faith or bad faith of the prosecution.” 373 U.S. at 8 7 . It
is well-settled that impeachment evidence must be disclosed to
the defense pursuant to Brady. United States v . Bagley, 473 U.S.
667, 676 (1985); Giglio v . United States, 405 U.S. 1 5 0 , 154
(1972). It is also well-settled that a Brady violation may occur
in cases of a prosecutor’s inadvertent failure to disclose.
Strickler v . Greene, 527 U.S. 263, 282 (1999); see also, United
States v . Agurs, 427 U.S. 9 7 , 110 (1976) (the constitutional
obligation to disclose under Brady is not measured by the moral
culpability or willfulness of the prosecutor). Accordingly, it
is of no consequence to Lavallee’s federal claim that the State
3 It should also be noted that for purposes of the federal court’s review under § 2254, a factual determination made by the state court is presumed to be correct and the petitioner bears the burden of rebutting that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e).
9 did not act in bad faith in failing to disclose impeachment
evidence until after the jury began deliberating.
The state’s obligation to produce exculpatory evidence is
not limited to the evidence in the prosecutor’s possession. In
Kyles v . Whitley, 514 U.S. 419 (1995), the Supreme Court found
that:
the prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that i s , a failure to disclose is in good faith or bad faith, see Brady, 373 U.S., at 8 7 , 83 S . Ct., at 1196-1197), the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.
514 U.S. at 437-438. The Court’s earlier decision in
Pennsylvania v . Ritchie, 480 U.S. 3 9 , 57-58 (1987), is consistent
with the broad language used in Kyles. In Ritchie, the Court
indicated that records held by a state protective service agency
may be the subject of a Brady violation. The Court recognized
that the defendant’s right to due process had been violated based
on the agency’s refusal to turn over material records to the
defense in response to the defendant’s subpoena. 480 U.S. at 57-
58. The Court found that due process outweighed the state’s
interest in keeping the records confidential, and the Court
10 mandated disclosure of the records to the defendant after in
camera review by the court for materiality. Id. at 5 8 .
In 1999, the Supreme Court clarified the requirements of a
Brady violation in Strickler v . Greene. There the Court found
that three elements must be established before a defendant can
show that a true Brady violation has occurred: “The evidence at
issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.” 527 U.S. at 281-82.
II. Requirements of 28 U.S.C. Section 2254(d)(1)
This Court must consider Lavallee’s Brady claim in light of
the requirements of the AEDPA. Under the AEDPA, Lavallee must
demonstrate that the trial court’s ruling on the scope of the
State’s duty to disclose exculpatory evidence was “contrary t o ,
or involved an unreasonable application o f , clearly established
Federal law, as determined by the Supreme Court of the United
States.” See 28 U.S.C. § 2254(d)(1). On review of his claim,
this Court must independently consider the “contrary to” and
“unreasonable application” clauses in § 2254(d)(1). “A federal
habeas court may issue the writ under the ‘contrary to’ clause if
11 the state court applies a rule different from the governing law
set forth in [Supreme Court] cases, or if it decides a case
differently than [the Supreme Court has] done on a set of
materially indistinguishable facts.” Bell v . Cone, 535 U.S. 685,
--, 122 S . C t . 1843, 1850 (2002) (citing Williams v . Taylor, 529
U.S. 3 6 2 , 406 (2000)). The federal habeas court may grant relief
under the “unreasonable application” clause if “the state court
correctly identifies the governing legal principle” from the
Supreme Court’s decisions, “but unreasonably applies it to the
facts of the particular case.” Bell, 122 S . C t . at 1850;
Williams, 529 U.S. at 407-409.
In considering Lavallee’s motion to dismiss the indictments,
the trial court ruled that DCYF is not an agent of the State for
purposes of the Brady rule. On appeal, the New Hampshire Supreme
Court followed the trial court’s lead with respect to its
determination that DCYF is not “the State” under New Hampshire
law. That court found that the prosecutor’s duty to produce
exculpatory evidence “extends only to evidence in the
prosecutor’s possession or in the possession of a law enforcement
agency charged with the investigation and presentation of the
case.” Lavallee, 145 N.H. at 4 2 7 , 765 A.2d at 673. According to
12 the court, the reason for imputing the police’s knowledge to the
prosecution arises from the special relationship that exists
between the prosecution and law enforcement in investigating and
prosecuting criminal conduct. Id., citing 1 R. McNamara, New
Hampshire Practice, Criminal Practice and Procedure §§ 1 2 , 14 (3d
ed. 1997). 4 The court found that “there is no similar
justification for imputing DCYF’s knowledge of the existence of
possibly exculpatory evidence to the prosecution.” Id.
The state courts’ rulings that the State had no duty to
produce the suppressed DCYF records is “contrary to” clearly
established federal law because the state courts applied a rule
that is different from the governing law set forth in Supreme
Court precedent. In Pennsylvania v . Ritchie, the Supreme Court
clearly indicated that the type of evidence at issue here may be
the subject of a Brady violation. 480 U.S. at 57-58. In
discussing the state’s duty to disclose, the Court made no
distinction between the prosecution and a state protective
service agency that possessed exculpatory evidence sought by the
defense. Rather, the Court recognized that the defendant’s right
to due process had been violated based on the state agency’s
4 The sections of the New Hampshire Practice series cited by the New Hampshire Supreme Court do not discuss any federal law.
13 refusal to turn over material records in response to the
defendant’s subpoena. Ritchie, 480 U.S. at 57-58. The Court
found that due process required disclosure of the records to the
defendant after in camera review by the court for materiality. Id. at 58. 5
The limitation that the state courts imposed on the State’s
duty to disclose exculpatory evidence contradicts the broad
language used by the Supreme Court in Kyles v . Whitley. The
Court found in Kyles that: “the prosecutor has a duty to learn of
any favorable evidence known to the others acting on the
government’s behalf in the case, including the police.” 514 U.S.
at 437-438. The Court’s use of the phrases “any favorable
evidence known to others” and “including the police” shows that a
state’s obligation to produce exculpatory evidence may extend
beyond law enforcement.
The policy justification behind the Brady rule is to ensure
5 In State v . Gagne, 136 N.H. 1 0 1 , 105, 612 A.2d 899, 901 (1992), the New Hampshire Supreme Court adopted the same standard for disclosure of DCYF records under New Hampshire law as the Supreme Court set forth Ritchie. The New Hampshire Supreme Court noted in Gagne that the issue raised by the defendant in Ritchie was remarkably similar to the issue before the court and that the “CYS file” in Ritchie was similar to the file at issue in Gagne. Id. at 105, 612 A.2d at 901. It is not clear from the record, but the New Hampshire Supreme Court may have overlooked Gagne when it considered Lavallee’s direct appeal.
14 that a miscarriage of justice does not occur. United States v .
Bagley, 473 U.S. at 675; see also, Strickler v . Greene, 527 U.S.
at 281 (finding that the American prosecutor has a special role
to play in ensuring that justice is done in criminal cases). In
Ritchie, the prosecutor’s knowledge of the records possessed by
the state agency, or lack thereof, played no part in the Court’s
decision. The justification discussed by the New Hampshire
Supreme Court for limiting the State’s obligation to disclose
exculpatory evidence -- focusing on the special relationship
between the prosecutor and law enforcement -- differs from the
Supreme Court’s focus on preventing a miscarriage of justice.
While the New Hampshire Supreme Court’s decision in State v .
Lavallee is binding New Hampshire precedent, the standard that it
applies to the scope of the State’s duty to disclose exculpatory
evidence is inconsistent with the federal standard.
To be clear, I do not find that the Supreme Court held in
Pennsylvania v . Ritchie and Kyles v . Whitley that prosecutors
have an obligation to survey every state agency to determine
whether the agencies possess potentially exculpatory evidence.
Where as in this case, however, the state has a statute
pertaining to the disclosure of confidential state records, and
15 the trial court has ordered the prosecutor to produce those
records to the defense, the disclosure obligations of Brady v .
Maryland, and its progeny, apply.
I find that the trial court’s decision that the prosecutor,
and therefore the State, had no duty under Brady to produce the
DCYF records that were suppressed in Lavallee’s case, despite the
trial court’s pretrial order requiring production, is contrary to
federal law as decided by the Supreme Court of the United States.
I further find, therefore, that Lavallee has satisfied the
conditions of § 2254(d)(1) necessary to proceed further with this
action.
III. Untimely Disclosure of Material Evidence
The Respondent argues that even if the State had a duty to
produce the suppressed DCYF records to Lavallee, the State
fulfilled its duty by producing those records to Lavallee before
his criminal case concluded. Respondent contends that Lavallee’s
claim of prejudice is without merit because he chose to not ask
for a mistrial or to move to reopen the case for further cross-
examination. Lavallee responds that the State’s disclosure,
during the jury’s deliberations, was in effect a nondisclosure.
Lavallee’s argument invokes a “well-established extension of
16 [the Brady] rule prohibiting unwarranted delays in the disclosure
of material evidence.” United States v . Lememmer, 277 F.3d 579,
584 (1st Cir. 2002) (citing United States v . Ingraldi, 793 F.2d
408, 411-12 (1st Cir. 1986)). Delayed disclosure of exculpatory
evidence by the prosecution does not automatically entitle a
defendant to a new trial. In United States v . Osorio, 929 F.2d
753, 757 (1st Cir. 1991), the court held that in cases involving
delayed disclosures, “the critical inquiry is . . . whether the
tardiness prevented defense counsel from employing the material
to good effect.” Id.; see also, Ingraldi, 793 F.2d at 412 (the
effect of a delayed disclosure “depends on the extent the
defendant actually managed to use the information in the files
despite the delay.”).
I find that Lavallee was denied any opportunity to use the
untimely disclosed evidence effectively. At the point of the
trial during which the State produced the evidence, the trial
court had already given its jury instructions and the jury had
retired to consider the evidence. I find it unreasonable to
suggest that Lavallee should have asked the trial court to re-
open the evidence at that point for additional cross-examination.
Respondent has not cited any case where a trial court has done so
17 under similar circumstances.
I further find that Lavallee did not waive his Brady claim
by asking the trial court to dismiss the indictments in response
to the State’s untimely disclosure. In denying a defendant’s
request for a new trial, the court in Osorio found it significant
that defense counsel “made no objection, motion for dismissal, or
motion for continuance, either at the time he first became aware
of [the delayed disclosure] or the next day when it was brought
to the court’s attention.” 929 F.2d at 758. Thus, the court
indicated that making a motion to dismiss is one way to preserve
an objection for appeal. And moreover, the New Hampshire Supreme
Court did not find that Lavallee waived his Brady claim when that
court considered his direct appeal. I find, therefore, that
Lavallee adequately preserved his Brady claim by making a motion
to dismiss in the trial court.
IV. Materiality of Suppressed Evidence
Before Lavallee is entitled to any relief under Brady based
on the untimely disclosure of exculpatory evidence, he must
demonstrate that the suppressed evidence was material. To meet
the materiality threshold, Lavallee must show that “there is a
18 reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different.” Strickler v . Greene, 527 U.S. at 280 (quoting United
States v . Bagley, 473 U.S. at 6 8 2 ) . In the instant case, the
trial court found that the suppressed evidence was not material
because it was, in that court’s view, largely cumulative of
evidence that was presented to the jury. On direct appeal, the
New Hampshire Supreme Court did not decide the materiality issue
because the court found that the prosecution had no duty to
disclose the evidence.
The DCYF file has not been submitted to this Court for
review. Absent that file, I cannot determine whether Lavallee
meets the Brady materiality standard. And since the trial court
ruled that the suppressed evidence in this case was not material
under Brady, this Court must also determine whether the trial
court’s materiality ruling was “contrary t o , or involved an
unreasonable application o f , clearly established Federal law, as
determined by the Supreme Court of the United States” under 28
U.S.C. § 2254(d)(1). Accordingly, in order to determine whether
Lavallee meets these requirements for obtaining relief, I must
review the DCYF file in light of the entire state court record.
19 Conclusion
Respondent’s motion for summary judgment (document n o . 10)
is denied. The Respondent shall submit to the Court within 30
days any remaining state court records that have not been
previously submitted in these proceedings. A copy of those
records shall be produced to Lavallee’s counsel, who is ordered
to maintain the confidentiality of the DCYF records. The DCYF
records that are submitted to the Court shall be filed under
seal.
SO ORDERED.
James R. Muirhead United States Magistrate Judge Date: January 7 , 2003
cc: Christopher M . Johnson, Esq. Jonathan V . Gallo, Esq.