Stetson v. Parole Board, NHSP C V - 96-186-B 05/27/98
UNITED STATE DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
James T. Stetson
v. Civil No. 96-186-B
Parole Board. NHSP1
MEMORANDUM AND ORDER
James Stetson was convicted of manslaughter in the shooting
death of Sherry Bubelynk. He has filed a habeas corpus petition
in this court claiming that trial counsel was ineffective.
Although he cites eleven different areas in which counsel's
performance allegedly was deficient, his primary arguments are
that counsel was ineffective because he failed to: (1) conduct an
adeguate pretrial investigation; (2) file a motion to suppress
certain statements Stetson made to the police; and (3) reguest a
jury instruction on the lesser included offense of negligent
homicide. For the reasons that follow, I reject Stetson's
arguments and dismiss his petition.
1 Stetson brought his claim against the Commissioner of Corrections. Because he has been released on parole, however, the correct respondent is the New Hampshire Parole Board. I. BACKGROUND
A. The Shooting and the Trial2
Around 1:50 a.m. on the morning of June 24, 1989,
the petitioner drove his pickup truck to an alley behind 340
Cedar Street in Manchester, New Hampshire. Intoxicated at the
time, the petitioner drove erratically. Upon his arrival, an
argument ensued between the petitioner and Wayne Owens, a
resident of 340 Cedar Street. The petitioner began to drive out
of the alley, then stopped, reversed a short distance, extended
his arm out of the driver's window and, while pointing it at an
upward angle, fired a single shot from a .22 semi-automatic
pistol and yelled to Owens, "the next one is for you." The
bullet ricocheted off an asphalt shingle and struck the victim.
Sherry Bubelynk, in the chest, mortally wounding her.
When the police arrived on the scene, they learned the shot
originated from the alley. The next morning, the police
recovered a spent .22 caliber shell casing from the alley. The
police also located two eyewitnesses, Dennis Citro and Marie
Thompkins.3 Both eyewitnesses identified the petitioner and his
2 I have taken the statement of facts concerning the shooting and the trial from Superior Court Judge James Barry's June 2, 1995 order denying Stetson's state court petition for habeas corpus.
3 Neither witness testified at trial. vehicle. They placed the petitioner in the alley at the time of
the shooting. Furthermore, Dennis Citro indicated he saw the
petitioner fire the gun.
On June 25, the police stopped the petitioner and
interviewed him at the police station for about one hour. During
the interview, the petitioner admitted he was in the alley on the
night of the shooting but denied owning a gun. The petitioner
later called the police station and asked if he was going to be
arrested. When he was told arrest was likely, the petitioner
asked, "what am I going to get for this, 30 years?"
Prior to his arrest, the petitioner made numerous
incriminating statements. On June 26, 1990, the petitioner
informed Mark LeBlanc that he had killed somebody. On June 28,
1990, the petitioner threatened Mark French, stating "I killed
Sherry and I am going to get you." On the same day, the
petitioner informed Donna Boulanger that "he was the sniper that
everyone is looking for." He also told Robert Harlow he
discharged a firearm in the alley on the night of the shooting.
Finally, the police located two additional eyewitnesses, Vincent
and Holly Jubrey.
The petitioner was indicted for manslaughter in July 1989.
The court appointed attorney Stephen White as defense counsel on October 31, 1989, after the N.H. Public Defenders withdrew from
the case. A paralegal from Attorney White's office interviewed
the petitioner in jail in November 1989. During this interview,
the petitioner informed the paralegal he had fired a weapon in
the alley on the night of the shooting.
Attorney White met briefly with the petitioner on December
8, 1989 for a bail hearing, and communicated briefly with the
petitioner by telephone. The next face-to-face meeting between
Attorney White and the petitioner occurred on April 3, 1990,
approximately two weeks before trial. The petitioner informed
Attorney White that while he had fired a weapon in the alley, he
had fired the weapon at 12:45 a.m., not 1:50 a.m., the time of
the alleged shooting.
During the final weeks before trial. Attorney White deposed
several of the state's witnesses and hired a private
investigator. When the petitioner informed Attorney White of the
possible existence of an eyewitness who could testify someone
other than petitioner was the shooter. Attorney White sent the
investigator to Rhode Island to locate this witness. The witness
could not, however, provide useful testimony. Attorney White did
not file any motions to suppress or motions in limine and refused
to file a continuance. Attorney White also attempted to enter plea negotiations.
The petitioner, apparently convinced of his own innocence,
rejected an offer of five to ten years, and instructed Attorney
White to discontinue future negotiations. During trial, the
petitioner repeated this instruction and executed a written
document memorializing this reguest.
During trial. Attorney White determined that allowing the
petitioner to testify would result in the petitioner admitting
both that he was in the alley on the night of the shooting and
that he had fired a weapon. Being unable to locate a witness who
could corroborate the petitioner's "two shot" theory and fearing
such an admission on the part of the petitioner would likely lead
to a conviction. Attorney White decided to pursue a strategy of
attacking the credibility of the state's witnesses in order to
introduce reasonable doubt into the minds of the jurors. At the
close of the trial. Attorney White decided not to ask for a
lesser included offense, as such a reguest would be inconsistent
with his client's position. After five hours of deliberation,
the jury returned a guilty verdict.
B. The State Court Habeas Corpus Proceeding
Stetson filed a state court petition for habeas corpus after
unsuccessfully appealing his conviction. He based his petition on the same claim that he raises in this action.
The state court held an evidentiary hearing on April 28,
1995 and subsequently issued a 12-page opinion denying the
petition. The New Hampshire Supreme Court refused to consider
Stetson's request for review.
II. STANDARD OF REVIEW
A federal court's degree of deference when reviewing a
habeas corpus request arising from state court proceedings varies
depending on whether the review addresses questions of fact, law,
or mixed questions of law and fact.4 A reviewing court presumes
that state court findings of fact are correct unless one of eight
statutory exceptions applies.5 Questions of law, on the other
4 Congress amended the habeas corpus statute when it enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"). However, AEDPA does not apply in this case because Stetson filed his petition before the Act became effective. See Lindh v. Murphy, 117 S. C t . 2059, 2067-68 (1997).
5 To qualify for an exception to the rule presuming that state court findings of fact are correct, the petitioner must prove or the respondent must admit that: (1) the merits were not resolved by the state hearing; (2) the fact-finding procedure did not afford a sufficiently full and fair hearing; (3) the material facts were not adequately developed; (4) the state lacked jurisdiction over the subject matter or the petitioner; (5) the applicant was indigent and the state failed to provide counsel at the hearing; (6) the applicant did not receive a full and fair hearing; (7) the applicant's due process was in some other way abridged at the hearing; or (8) the record does not support the
-6- hand, receive de novo review. See Wright v. West, 505 U.S. 277,
289-90 & n. 6 (1992); Sumner v. Mata, 455 U.S. 591, 597 (1982).
In the First Circuit, mixed questions of law and fact, such as
whether trial counsel rendered effective assistance, are also
reviewed de novo. See Scarpa v. Dubois, 38 F.3d 1, 9 (1st Cir.
1994), cert. denied, 513 U.S. 1129 (1995).
Stetson is not entitled to an evidentiary hearing in federal
court as he has demonstrated neither cause nor prejudice for his
failure to develop an adequate record in state court. See Keeney
v. Tamavo-Reves, 504 U.S. 1, 8-9 (1992). Accordingly, I decide
the case based on the expanded evidentiary record produced in
state court and evaluate that record in light of the above-
mentioned standard of review.
III. DISCUSSION
Stetson claims that his counsel was ineffective both before
and during trial. In order to succeed with such a claim, a
habeas petitioner must make a two-part showing. See Strickland
v. Washington, 466 U.S. 668, 687 (1984); Scarpa, 38 F.3d at 8;
United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991),
state court factual findings. See 28 U.S.C.A. § 2254(d) (West 1994) . cert. denied, 502 U.S. 1079 (1992).
First, the petitioner must establish that counsel's conduct
was unreasonable under professional norms prevailing at the time
of the conduct. See Strickland, 466 U.S. at 688-90; Scarpa, 38
F.3d at 8; Natanel, 938 F.2d at 309. This burden is difficult to
meet because the constitutional right to counsel guarantees only
that the trial will be a "reliable adversarial testing process;"
it is not intended to ensure the defendant will be acguitted.
See Strickland, 466 U.S. at 688 (guoting Powell v. Alabama, 287
U.S. 45, 68-69 (1932)). Thus, reviewing courts begin with the
presumption, regarding counsel's action, "that, under the
circumstances, the challenged action 'might be considered sound
trial strategy.'" Id. at 689 (guoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)). This presumption is warranted because
"[i]t is all too tempting for a defendant to second guess
counsel's assistance after conviction . . . and it is all too
easy for a court, examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable." Strickland, 466 U.S. at 689 (citing
Engle v. Isaac, 456 U.S. 107, 133-34 (1982)).
Second, petitioner must show that counsel's asserted
deficiencies resulted in actual prejudice. See Strickland, 466
-8- U.S. at 691-92; Scarpa, 38 F.3d at 8. In other words, petitioner
must show that, but for counsel's conduct, the trial outcome
would have been different. See Strickland, 466 U.S. at 694;
Scarpa, 38 F.3d at 8-9. I consider Stetson's claim in light of
these requirements.
A. Failure to Investigate and Prepare for Trial
Stetson argues that his counsel failed to properly
investigate the charges against him. In particular, he claims
that his counsel failed to locate certain witnesses that would
have been favorable to the defense. The state court found with
respect to this claim that "counsel made reasonable attempts to
locate any favorable witnesses. . . . Counsel indicated that he
would communicate with any person whom the petitioner felt could
give favorable testimony and counsel hired a private investigator
to locate possible defense witnesses. These attempts proved
fruitless as the witnesses either could not provide the needed
information and [sic] placed the petitioner in the alley at the
time of the shooting." Nothing in the record casts doubt on
these findings. Nor does the record otherwise suggest that
counsel conducted an inadequate pretrial investigation.
Accordingly, I reject Stetson's claim that his counsel was ineffective because he failed to conduct an adequate pretrial
investigation.
B. Failure to Suppress Stetson's Statements
Stetson claims that his counsel should have moved to
suppress statements given to the police during the June 25
interview. The state habeas judge found with respect to this
claim that: (1) Stetson initially was stopped because he matched
eyewitness descriptions; (2) Stetson was told before accompanying
the police to the station that he was not under arrest and the
decision about whether to come to the station was his; (3) the
police did not threaten Stetson or otherwise engage in coercive
conduct when questioning him; and (4) while there was some
evidence in the record to suggest that Stetson had been drinking,
he was not so intoxicated that he was incapable of answering the
questions put to him. The record does not provide a basis for
second-guessing the state court's factual findings on these
issues. Moreover, reviewing the remaining questions de novo, I
agree with the state habeas judge that any motion to suppress
could not have been successful because the police had reasonable
suspicion to stop Stetson, see United States v. McCarthy, 77 F.3d
522, 529 (1st Cir.). cert. denied, 117 S. Ct. 479 (1996); Stetson
was not entitled to Miranda warnings when he made his statements
-10- because he was not "in custody," see Thompson v. Keohane, 516
U.S. 99, 107 (1995); and Stetson's statements to the police were
not involuntary, see United States v. Burns, 15 F.3d 211, 216
(1st Cir. 1994).
C. Failure to Request a Lesser Included Offense Instruction
Stetson argues that his lawyer was ineffective because he
failed to request an instruction on the lesser included offense
of negligent homicide. Stetson's theory of defense was that he
had not fired the shot that killed Bubelynk. To support this
defense. Stetson relied heavily on a statement that he had given
to the police in which he denied that he had fired the fatal
shot. Defense counsel explained his decision not to request a
lesser included offense instruction at the state habeas corpus
hearing by stating "I deliberately intended to let his statement
speak for itself -- well, let the officer testify what his
statement was, that he denied having a gun and shooting a gun in
the alley. I did not feel I could he[sic] ask for a lesser
included offense when I was creating the impression he was
denying the event, having any involvement in it." Transcript at
191-92.6 Under the circumstances presented in this case,
6 At one point Attorney White appeared to suggest that it would have been unethical to request a lesser included offense instruction. I disagree with this assertion. Nevertheless, in a
-11- counsel's tactical judgment was reasonable. Therefore, his
failure to seek a lesser included offense instruction will not
support an ineffective assistance of counsel claim. See Neal v.
Acevedo, 114 F.3d 803, 806 (8th Cir. 1997); Kubat v. Thieret, 867
F.2d 351, 364-65 (7th Cir.), cert. denied, 493 U.S. 874 (1989).
D. Other Arguments
Stetson also argues that counsel was ineffective because he
(1) failed to communicate meaningfully; (2) disclosed a ricochet
theory to the prosecution; (3) failed to guash an allegedly
defective indictment; (4) failed to object to improper
prosecution arguments; (5) opened the door for inadmissable
hearsay testimony; (6) failed to hire a defense reconstruction
expert; (7) failed to object to the prosecution's expert; and (8)
threatened to disclose privileged information. I discuss each
argument in turn below.
1. Failure to communicate meaningfully
Stetson alleges that Attorney White was ineffective because
he failed to communicate meaningfully with Stetson prior to
case such as this where a defendant claims he was not responsible for a shooting, the ultimate guestion as to whether it would have been better to reguest a lesser included offense instruction than to give the jury a choice only between acguittal and manslaughter plainly presents a matter of tactical judgment that ordinarily should not be guestioned on habeas corpus review.
-12- trial. However, Stetson cannot show how counsel's conduct
prejudiced his trial. "The legal question of 'ineffective
assistance' focuses, not on client expressions of satisfaction
. . but upon counsel's performance." United States v. Porter,
924 F.2d 395, 398 (1st Cir. 1991) (citing United States v.
Crpnic, 466 U.S. 648, 657 n.21 (1984)). If counsel's performance
did not prejudice the defendant, then, regardless of defendant's
satisfaction with the result, counsel's duty to meaningfully
communicate is satisfied.
The record shows that Attorney White did communicate with
Stetson prior to trial, though not extensively. White's
paralegal interviewed Stetson and placed a report of the
interview on file. Stetson and White exchanged numerous
telephone calls and letters and had a meeting in April 1990 to
discuss aspects of the case including pleas and avenues of
defense. White then presented a coherent defense taking into
account all the evidence. Because the defense was not blatantly
deficient. Stetson cannot show prejudice. Thus, he does not
satisfy the second requirement of the ineffective assistance of
counsel test. Strickland, 466 U.S. at 687; Scarpa, 38 F.3d at 9.
2. Counsel disclosed a ricochet theory to the prosecution
Prior to trial. Attorney White counsel requested a proximity
-13- report from the prosecutor. This report apparently mapped the
crime scene, indicating the locations of the victim, shooter, any
objects around the scene, and the trajectory of the bullet.
Stetson claims that by requesting the report, counsel informed
the prosecutors of a theory of which they had previously been
unaware; namely, that the bullet had glanced off something prior
to striking and killing Bubelnyk.
The evidence in the record shows, however, that months prior
to trial, particles of asphalt shingle had been found embedded in
the lead bullet, and that the prosecutors had planned to use a
ricochet theory since then. Because the prosecution already knew
of the theory at the time of counsel's request, counsel could not
have disclosed the theory and, thus, his actions did not
prejudice the trial. Hence, this claim cannot satisfy the second
requirement of an ineffective assistance of counsel claim. See
Strickland, 466 U.S. at 687; Scarpa, 38 F.3d at 9.
3. Failure to quash allegedly defective indictment
Stetson asserts that the indictment charging him with
manslaughter was defective and that his counsel should have
attempted to have it quashed. The record indicates that Stetson
is dissatisfied with the indictment's alleged lack of
specificity.
-14- Attorney White testified at the state habeas corpus hearing
that he did not move to quash the indictment because he felt he
lacked sufficient grounds to support such a request. I agree
with his assessment. An indictment must only allege the offense
with sufficient specificity to inform the defendant of the
charges against him. See Fed. R. Grim. P. 7(c)(1) advisory
committee's note; 28 U.S.C.A. § 2071 (West 1994); United States
v. Whiffen, 121 F.3d 18, 21 (1st Cir. 1997). The indictment
states: ". . . on the 24th day of June, 1989 at 1:50 a.m. . . .
[James T. Stetson of Manchester] . . . did commit the offense of
manslaughter . . . [by] recklessly causing the death of Sherry
Bubelynk by shooting her in the chest with a handgun." This
allegation informs Stetson that he is being charged with
recklessly shooting Bubelnyk in the chest and thereby killing
her. Thus, it provides all of the specific information to which
he is entitled.
4. Failure to object to improper arguments
Stetson faults his counsel for not objecting to certain
comments made by the prosecution during its closing. Again,
Stetson fails to state in his petition which comments were
impermissible, but a review of the record and counsel's testimony
shows that counsel's conduct was reasonable. Counsel testified
-15- that he failed to object to the prosecution's closing because he
did not want to look foolish or impolite in the eyes of the jury.
As a practical matter, none of the prosecutor's arguments were
plainly improper and it was a reasonable tactical judgment for
counsel to withhold objection so as not to highlight the
objectionable material or potentially antagonize the jury. In
sum, failing to object to the prosecution's arguments under these
circumstances is reasonable trial conduct. See United States v.
Garcia-Rosa, 876 F.2d 209, 232 (1st Cir. 1989), vacated on other
grounds, 498 U.S. 954 (1990).
5. "Opening the door" for inadmissible hearsay testimony
Stetson asserts that defense counsel unreasonably "opened
the door" to inadmissible hearsay testimony. In response to
guestioning from defense counsel, police officer John Jaskola
testified about an interview that he had conducted with Wayne
Owens, a potential prosecution witness, in which Owens claimed
that he knew nothing about the shooting. Owens later was called
as a prosecution witness, but he refused to testify and was held
in contempt. The prosecution then called William Brennan,
another police officer, who testified that Owens had admitted in
a later statement given after his arrest that he had seen Stetson
fire the shot that killed Bubelynk. The New Hampshire Supreme
-16- Court ultimately concluded that the trial judge had properly
admitted the evidence because the defense had opened the door to
its admission. State v. Stetson, 135 N.H. 267, 269 (1992).
Attorney White testified that he elicited Owen's first
statement to attack Owens' credibility and to cast doubt on the
state's case by suggesting that Owens' temporizing about his
knowledge of the events of June 24, 1989, tended to implicate him
in the crime. In addition, counsel felt the second statement was
of negligible importance for two reasons: (1) it was made under
conditions suggesting self-interest and therefore not very
credible; and (2) it was only one of a number of similar
statements implicating Stetson so that in itself, counsel felt,
it would not greatly influence the jury. In balancing the two
pieces of testimony, counsel believed that the useful effects of
the first statement outweighed the detrimental effects of the
second statement. This determination falls well within the
purview of a trial lawyer's reasonable tactical judgment. See
Araencourt v. United States, 78 F.3d 14, 17 (1st Cir. 1996); Lema
v. United States, 987 F.2d 48, 55-56 (1st Cir. 1993). Because
Stetson cannot refute the presumption of reasonableness, he has
no basis for an ineffective assistance of counsel claim. See
-17- 6. Failure to obtain defense reconstruction expert
Stetson claims that his counsel unreasonably failed to
retain a reconstruction expert to testify as to what happened to
the bullet on the morning of June 24, 1989. The record shows
that counsel considered hiring an expert but decided not to
because it would not add anything to the defense. Counsel felt
that the prosecution expert's calculations had a sufficient
margin of error so that the jury could conclude that the bullet
might have been fired from some location other than the proposed
location of Stetson's truck. Such a conclusion would gualify as
reasonable doubt, counsel reasoned. Toward this end, counsel
even managed to get the prosecution's expert to admit on cross-
examination that the fatal bullet may have been fired from inside
340 Elm Street, Mr. Owens' apartment, suggesting a "frame-up."
Once again, this was a legitimate tactical judgment that counsel
could reasonably have made under the circumstances.
7. Failure to object to prosecution's expert
Stetson claims that his trial counsel unreasonably failed to
object to the State's reconstruction expert's testimony. Counsel
defended his decision at the habeas corpus hearing by claiming
that the testimony was so inconclusive that its admission
benefitted the defense. Further, counsel reasoned that if the
-18- expert's testimony were excluded, the jury would have based its
decision on lay witness testimony, most of which implicated
Stetson. Hence, counsel's judgment had a reasonable basis and
reinforced his trial strategy.
8. Threatening to disclose privileged information
Stetson claims that White threatened to disclose privileged
information to the judge during the sentencing hearing if he
attempted to hire a new attorney for his sentencing hearing.
Attorney White denies the charge. The state habeas court found
that even if Stetson's claim were true, it would not entitle him
to a new trial because he did not suffer any prejudice. I agree.
The record reveals that defense counsel argued vigorously and
effectively for a reduced sentence. Stetson has failed to
explain how he was prejudiced as a result of counsel's alleged
threat. Accordingly, this claim cannot serve as a basis for
habeas corpus relief.
V. CONCLUSION
I find that Attorney White's pretrial and trial conduct
passes the Strickland test as to each claim made by petitioner.
White followed reasonable practice in devising his strategy for
trial, and adeguately investigated the facts of the case in
-19- preparation for the trial. Despite Stetson's conviction, I find
that he has failed the burden of proving ineffective assistance
of counsel based on unreasonable attorney conduct which may have
prejudiced the outcome of the trial. Therefore, his habeas
corpus petition is without merit. For these reasons, I dismiss
his petition.
SO ORDERED.
Paul Barbadoro Chief Judge
May 27, 1998
cc: James Stetson, pro se Patrick Donovan, Esg.
-20-