Robert Haines v. NH DOC CV-99-153-B 03/25/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Haines
Civil No. 99-153 Opinion No. 2003 DNH 053 N.H. Department of Corrections
MEMORANDUM AND ORDER
Habeas corpus petitioner, Robert Haines, challenges his
convictions for reckless conduct, N.H. Rev. Stat. Ann. 631:311
(1996 & Supp. 2002), and felonious use of body armor, N.H. Rev.
Stat. Ann. 650-B2 (1996 & Supp. 2002). (Doc. No. 73). He asserts
that his trial counsel was constitutionally ineffective in four
ways: (1) in coercing petitioner to give up his constitutional
right to testify; (2) in incorrectly claiming during closing
argument that Haines had pointed a rifle at an alleged assailant
when the evidence did not reguire such a concession; (3) in
failing to develop and present an effective theory of self-
defense; and (4) in failing to preserve for appeal a constitutional challenge to jury instructions. I reject all four
arguments and grant respondent's motion for summary judgment.
(Doc. No. 74)
I. BACKGROUND1
The defendant campaigned for president in February 1995. He
traveled by truck with his wife and infant son from Washington,
D.C. to Manchester that same month. During the evening of
February 17, the defendant entered the Salty Dog restaurant and
bar to continue his campaigning. While handing out political
leaflets, the defendant encountered Kevin Lavigne, a patron of
the Salty Dog. Following a brief conversation, Lavigne ripped
one of the defendant's political leaflets and scattered pieces to
the floor. At this point, the defendant left the bar. From the
sidewalk, the defendant motioned for Lavigne to step outside.
Lavigne accepted. After some pushing between the two men, an
employee of the bar separated them. The defendant, however,
sought out a nearby police officer. The defendant told the
1 I describe the background facts as they were expressed in the New Hampshire Supreme Court's opinion disposing of Haines's direct appeal. See State v. Haines, 142 N.H. 692, 694-95 (1998) .
- 2 - officer, Robert Oxley, that he had been assaulted. After
investigating the incident. Officer Oxley informed the defendant
that he did not believe an assault had occurred. The defendant,
became upset with Officer Oxley and reported his failure to take
action in a "911" telephone call.
A short time later, two other patrons of the bar, Christian
Busch and Jeffrey Meyer, exited the Salty Dog looking for a
friend who was supposed to meet them. Busch crossed the street
and walked toward an individual he thought was his friend. The
defendant, observing Busch, simultaneously went to his truck and
retrieved a rifle. The defendant chambered a round into the
rifle by pumping the barrel once. He approached Busch, aimed the
gun at him, and put his hands in a position ready to fire. Busch
saw the rifle and ran away. The rifle was operational and loaded
with four bullets at the time the defendant approached Busch.
Officer Oxley witnessed the defendant's actions, ordered the
defendant to disarm and assume a prone position. Officer Oxley
then placed the defendant under arrest. During a pat-down search
of the defendant the police discovered that he was wearing body
armor, specifically a bullet-proof vest.
- 3 - At trial, the defendant contended he wore the body armor
because he was a candidate for president. He further argued that
he had drawn his weapon in self-defense after Busch allegedly
charged at him in the street. The jury convicted the defendant
of reckless conduct and felonious use of body armor.
II. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD
A court cannot overturn a conviction because of ineffective
assistance of counsel unless
(1) "counsel's performance was ’'deficient'"; that is, "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed to the defendant by the Sixth Amendment;" and (2) "the deficient performance prejudiced the defense; that is 'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' "
United States v. Derman, 211 F.3d 175, 184 (1st Cir. 2000)
(guoting Strickland v. Washington, 466 U.S. 668, 687 (1984) . I
apply this two-part test in evaluating Haines's petition.
III. ANALYSIS
Three of Haines's four arguments assert that his lawyer
failed to develop and properly present his self-defense claim.
- 4 - Haines first argues that his lawyer coerced him into giving up
his right to testify. Haines Aff. 5 16. If Haines had
testified, he now claims, he would have told the jury that: (1)
he confronted Busch only after Busch ran toward him shouting "I
am going to beat the shit out of you"; (2) he deterred Busch from
assaulting him by pointing his rifle in the air and pumping a
round into the chamber; and (3) he had a heightened fear of
assault because he had previously witnessed a shooting incident
outside the White House and had himself been the victim of an
assault. Haines Aff. 55 4,5,6,12. Haines next argues that his
attorney undermined his self-defense claim by improperly
conceding during closing argument that Haines had "stuck the gun
basically in [Busch's] face" when, at most, the evidence
suggested that Haines pointed the rifle in Busch's general
direction. Tr. November 30, 1995 pp. 168-169. Third, Haines
claims that his lawyer doomed his self-defense claim by failing
to mention the term "self-defense" during his closing argument.
Haines's fourth argument is that his lawyer erred in failing to
object to a jury instruction that effectively amended the
indictment. I address each argument in turn.
- 5 - A. Right to Testify
Although Haines admits that his attorney told him that he
had a right to testify and that no one could keep him from
testifying, Haines Aff. 5 16, he nevertheless argues that his
attorney coerced him into remaining silent by standing over him
in a threatening manner and demanding that he keep his mouth
shut. Id. I reject Haines's argument.
Construing the evidence in the light most favorable to
Haines, the record demonstrates that he understood that he had a
right to testify but instead chose to accept his attorney's sound
tactical advice to remain silent. Counsel may have been
insistent in advising Haines not to testify but the record
demonstrates that Haines understood that the final decision as to
whether to testify was his to make. Moreover, had Haines
testified, the jury would have learned that Haines: remained in
the area after the conversation with Lavigne ended; donned a
bullet-proof vest; transferred his 35-caliber rifle from the rear
of his truck to the cab; took a box of bullets from the glove
box; and placed four rounds in his hand. The jury also would
have learned that after Busch began to approach him, Haines
- 6 - retrieved the rifle and pumped a round into the chamber. Rather
than allowing the jury to hear this damaging evidence, which is
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Robert Haines v. NH DOC CV-99-153-B 03/25/03
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Haines
Civil No. 99-153 Opinion No. 2003 DNH 053 N.H. Department of Corrections
MEMORANDUM AND ORDER
Habeas corpus petitioner, Robert Haines, challenges his
convictions for reckless conduct, N.H. Rev. Stat. Ann. 631:311
(1996 & Supp. 2002), and felonious use of body armor, N.H. Rev.
Stat. Ann. 650-B2 (1996 & Supp. 2002). (Doc. No. 73). He asserts
that his trial counsel was constitutionally ineffective in four
ways: (1) in coercing petitioner to give up his constitutional
right to testify; (2) in incorrectly claiming during closing
argument that Haines had pointed a rifle at an alleged assailant
when the evidence did not reguire such a concession; (3) in
failing to develop and present an effective theory of self-
defense; and (4) in failing to preserve for appeal a constitutional challenge to jury instructions. I reject all four
arguments and grant respondent's motion for summary judgment.
(Doc. No. 74)
I. BACKGROUND1
The defendant campaigned for president in February 1995. He
traveled by truck with his wife and infant son from Washington,
D.C. to Manchester that same month. During the evening of
February 17, the defendant entered the Salty Dog restaurant and
bar to continue his campaigning. While handing out political
leaflets, the defendant encountered Kevin Lavigne, a patron of
the Salty Dog. Following a brief conversation, Lavigne ripped
one of the defendant's political leaflets and scattered pieces to
the floor. At this point, the defendant left the bar. From the
sidewalk, the defendant motioned for Lavigne to step outside.
Lavigne accepted. After some pushing between the two men, an
employee of the bar separated them. The defendant, however,
sought out a nearby police officer. The defendant told the
1 I describe the background facts as they were expressed in the New Hampshire Supreme Court's opinion disposing of Haines's direct appeal. See State v. Haines, 142 N.H. 692, 694-95 (1998) .
- 2 - officer, Robert Oxley, that he had been assaulted. After
investigating the incident. Officer Oxley informed the defendant
that he did not believe an assault had occurred. The defendant,
became upset with Officer Oxley and reported his failure to take
action in a "911" telephone call.
A short time later, two other patrons of the bar, Christian
Busch and Jeffrey Meyer, exited the Salty Dog looking for a
friend who was supposed to meet them. Busch crossed the street
and walked toward an individual he thought was his friend. The
defendant, observing Busch, simultaneously went to his truck and
retrieved a rifle. The defendant chambered a round into the
rifle by pumping the barrel once. He approached Busch, aimed the
gun at him, and put his hands in a position ready to fire. Busch
saw the rifle and ran away. The rifle was operational and loaded
with four bullets at the time the defendant approached Busch.
Officer Oxley witnessed the defendant's actions, ordered the
defendant to disarm and assume a prone position. Officer Oxley
then placed the defendant under arrest. During a pat-down search
of the defendant the police discovered that he was wearing body
armor, specifically a bullet-proof vest.
- 3 - At trial, the defendant contended he wore the body armor
because he was a candidate for president. He further argued that
he had drawn his weapon in self-defense after Busch allegedly
charged at him in the street. The jury convicted the defendant
of reckless conduct and felonious use of body armor.
II. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD
A court cannot overturn a conviction because of ineffective
assistance of counsel unless
(1) "counsel's performance was ’'deficient'"; that is, "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed to the defendant by the Sixth Amendment;" and (2) "the deficient performance prejudiced the defense; that is 'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' "
United States v. Derman, 211 F.3d 175, 184 (1st Cir. 2000)
(guoting Strickland v. Washington, 466 U.S. 668, 687 (1984) . I
apply this two-part test in evaluating Haines's petition.
III. ANALYSIS
Three of Haines's four arguments assert that his lawyer
failed to develop and properly present his self-defense claim.
- 4 - Haines first argues that his lawyer coerced him into giving up
his right to testify. Haines Aff. 5 16. If Haines had
testified, he now claims, he would have told the jury that: (1)
he confronted Busch only after Busch ran toward him shouting "I
am going to beat the shit out of you"; (2) he deterred Busch from
assaulting him by pointing his rifle in the air and pumping a
round into the chamber; and (3) he had a heightened fear of
assault because he had previously witnessed a shooting incident
outside the White House and had himself been the victim of an
assault. Haines Aff. 55 4,5,6,12. Haines next argues that his
attorney undermined his self-defense claim by improperly
conceding during closing argument that Haines had "stuck the gun
basically in [Busch's] face" when, at most, the evidence
suggested that Haines pointed the rifle in Busch's general
direction. Tr. November 30, 1995 pp. 168-169. Third, Haines
claims that his lawyer doomed his self-defense claim by failing
to mention the term "self-defense" during his closing argument.
Haines's fourth argument is that his lawyer erred in failing to
object to a jury instruction that effectively amended the
indictment. I address each argument in turn.
- 5 - A. Right to Testify
Although Haines admits that his attorney told him that he
had a right to testify and that no one could keep him from
testifying, Haines Aff. 5 16, he nevertheless argues that his
attorney coerced him into remaining silent by standing over him
in a threatening manner and demanding that he keep his mouth
shut. Id. I reject Haines's argument.
Construing the evidence in the light most favorable to
Haines, the record demonstrates that he understood that he had a
right to testify but instead chose to accept his attorney's sound
tactical advice to remain silent. Counsel may have been
insistent in advising Haines not to testify but the record
demonstrates that Haines understood that the final decision as to
whether to testify was his to make. Moreover, had Haines
testified, the jury would have learned that Haines: remained in
the area after the conversation with Lavigne ended; donned a
bullet-proof vest; transferred his 35-caliber rifle from the rear
of his truck to the cab; took a box of bullets from the glove
box; and placed four rounds in his hand. The jury also would
have learned that after Busch began to approach him, Haines
- 6 - retrieved the rifle and pumped a round into the chamber. Rather
than allowing the jury to hear this damaging evidence, which is
consistent neither with Haines's claim of self-defense nor his
argument that he behaved reasonably under the circumstances,
Haines's attorney instead presented a viable although ultimately
unsuccessful argument that Haines had been patiently waiting at
the scene for a response to his 911 call when he was forced to
reasonably respond to an unforseen threat by brandishing a rifle
with no round in its chamber.2 The record demonstrates that
Haines acguiesced in this tactical decision with a full
understanding of the fact that he had an absolute right to
testify on his own behalf.
In short, I am unpersuaded by Haines's claim that his
attorney coerced him into abandoning his right to testify.
Instead, the record reveals that Haines made a free choice to
accept his counsel's sound tactical advise to remain silent. As
2 Haines's attorney based this argument on Meyer's testimony that he saw Haines point the rifle at Busch before Haines was arrested and Officer Oxley's testimony that Haines chambered a round immediately before Oxley arrested him. Counsel argued that this evidence, coupled with the fact that no ejected ammunition had been found at the scene, left a reasonable doubt as to whether the rifle had a round in the chamber when Haines confronted Busch. Tr. November 30, 1995 pp. 169-75.
- 7 - this advice was appropriate under the circumstances, I reject
Haines's contention that his attorney's performance was
deficient. For similar reasons, I also agree with the Department
of Corrections that Haines cannot demonstrate that he suffered
any prejudice as a result of his decision not to testify.
B. Misstatement of Evidence
Haines's claim that counsel's closing argument was
constitutionally ineffective is also unavailing. While counsel
stated during his closing argument that Haines "stuck the gun
basically in [Busch's] face," it is apparent from the context in
which he made this remark that he was speaking figuratively.
Counsel defended the case by trying to convince the jury that
Haines had not acted recklessly because, when he brandished the
rifle, it could not be fired without first pumping a round into
the chamber. In this context, counsel's statement was not
prejudicial. Any possibility that the jury might have
misunderstood counsel's closing argument was negated by the fact
that he accurately summarized the evidence regarding Haines's
confrontation with Busch elsewhere during his closing argument.
Tr. November 30, 1995 pp. 149-176. Again, counsel was not
ineffective and Haines suffered no prejudice. C. Failure to Mention Self-Defense
Haines's third argument is that his counsel essentially
abandoned Haines's self-defense claim by failing to mention it
during his closing argument. While it is true that Haines's
attorney did not use the term "self-defense," his argument was
that Haines was not guilty because he used the minimal amount of
force that was reasonably necessary to deter Busch from what
Haines believed was an impending assault. This argument fits
both Haines's broader argument that he did not act recklessly
under the circumstances and his claim that he acted in self-
defense. The argument was effectively developed and the jury was
properly instructed on Haines's self-defense claim. Thus, his
attorney's performance did not prejudice Haines in his ability to
present his self-defense claim.3
D. Jury Instructions
Haines's argument that counsel was ineffective because he
3 Haines also faults counsel for failing to call a Secret Service agent who could have testified that Haines had previously helped subdue a person who had been involved in a shooting incident outside the White House. This argument is without merit as this evidence would have been of limited, if any, relevance. Moreover, the evidence would have been cumulative as Haines's wife informed the jury of Haines's involvement in the White House shooting incident. failed to preserve an objection to the court's jury instructions
is equally unavailing. The court's instructions did not
materially deviate from the charge set forth in the indictment.
Therefore, his challenge to the instructions could not have
succeeded even if it had been properly preserved.
IV. CONCLUSION
As none of Haines' arguments, either individually or taken
together, support his claim for relief, I grant respondent's
motion for summary judgment (document no. 74).
SO ORDERED.
Paul Barbadoro Chief Judge
March 25, 2003 cc: Robert Haines Bjorn Lange, Esq. Ann Rice, Esq.
- 10 -