Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 1 of 20
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
James Wellington, Petitioner
v. Civil No. 04-cv-478-SM Opinion No. 2005 DNH 135 Larry Blaisdell, Acting Warden, Northern New Hampshire Correctional Facility, Respondent
O R D E R
James Wellington, an inmate at the Northern New Hampshire
Correctional Facility, petitions for a writ of habeas corpus.
28 U.S.C. § 2254. He argues that his state incarceration is
unconstitutional because his convictions - for aggravated
felonious sexual assault, aggravated sexual assault, and indecent
exposure and lewdness - resulted from the trial court's decision
to deny him funds to secure the services of an expert witness in
the field of child witness interviewing. Before the court is
respondent's motion for summary judgment. Petitioner objects.
For the reasons given, respondent's motion for summary judgment
is granted. Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 2 of 20
The Legal Standard
Passage of the Anti-Terrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), has significantly
limited the power of the federal courts to grant habeas corpus
relief to state prisoners. A federal court may disturb a state
conviction only when: (1) the state court adjudication "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)(2); or (2) the state court's
resolution of the issues before it "resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States," 28 U.S.C. § 2254(d)(1); see also
Williams v. Taylor, 529 U.S. 362, 399 (2000).
The distinction between decisions that are "contrary to"
clearly established federal law and those involving an
"unreasonable application" of federal law has been explained by
the United States Supreme Court:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme]
2 Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 3 of 20
Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Williams, 529 U.S. at 412-13.
"AEDPA's strict standard of review only applies to a ■'claim
that was adjudicated on the merits in state court proceedings.'"
Norton v. Spencer, 351 F.3d 1, 5 (1st Cir. 2003) (quoting Fortini
v. Murphy. 257 F.3d 39, 47 (1st Cir. 2001); citing Ellsworth v.
Warden, 333 F.3d 1, 6 (1st Cir. 2003)). Here, all agree that the
strict standard of review applies, as petitioner's claim was
adjudicated on the merits in the New Hampshire state courts.
Background
On September 19, 2001, Victoria C. told her mother that
James Wellington was a "bad man."1 The following day, Victoria
1 At that time, Victoria had spent significant amounts of time alone with Wellington, on approximately seven different days, at a local lake, at Wellington's apartment, and at the apartment where Victoria lived with her mother.
3 Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 4 of 20
elaborated, telling her mother that Wellington "had tried to put
his penis - and she reached towards her groin area - and that he
indicated she was too small and then he used his fingers and his
tongue down there." (Trial Tr. II at 41.) The events to which
Victoria referred took place between approximately August 20 and
September 11. As a result of Victoria's report, her mother
called the police.
On September 20, 2001, the same day that Victoria told her
mother about Wellington's behavior. Sergeant Norman Ashburn of
the Franklin Police Department spoke with Victoria's mother, and
spoke with Victoria alone, in their home. He listened to
Victoria's descriptions of Wellington's actions, but asked few
questions. Later, Detective Nancy Hicks met with Victoria at the
police station. Victoria told Detective Hicks what had happened
and also gave a written statement. In addition to her
conversations with Officer Ashburn and Detective Hicks, Victoria
told her story to a nurse at Franklin Hospital and had a second
examination at Concord Hospital.
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On September 24, Anne Pennock of the Division of Children,
Youth, and Families met with Detectives Hicks and Clough at the
Franklin police station, where Pennock and Detective Hicks
subsequently conducted an interview with Victoria that was
recorded on both audiotape and videotape. At the outset of the
interview, Victoria was eating a brownie she was given by either
Pennock or Detective Hicks, and at several points, Victoria asked
to play a game of hangman with Pennock. In response, Pennock
told Victoria that they could play the game after the interview
was completed. That interview included the following questions
and answers:
VC: He got undressed too and showed me.
Anne: And showed you?
VC: Uh huh.
Anne: How'd he do that?
VC: Well he showed me ways on how to make a baby and on how to
Anne: Would it be easier if you pointed to the picture ?
VC: Yes.
Anne: Okay.
5 Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 6 of 20
VC: Is there a girl in there? He tried um (circled vagina and drew a line between f & m figures)
Hicks: What did he try to do with his penis in your vagina?
VC: He tried to show me how man and woman made a baby.
Anne: Yeah?
Hicks: But what did he do with his penis in your vagina?
VC: Well he didn't really go in but he tried to show me with it. They were really (unclear) and then he showed me how they could have it but not have a baby by not using that. (drew line from mouth to vagina on drawings)
Anne: How did he show you that? With his mouth on your vagina?
Anne: Yeah.
Hicks: What did he do with his mouth?
VC: He showed me another way on how not to have a baby.
Anne: Yeah how's that? His mouth inyourvagina?
VC: Un huh.
(Pet'r's Mot. Summ. J., Ex. 2b at 18-19.)
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Prior to trial, Wellington, who was indigent and represented
by the public defender, moved the court to provide $2000 to allow
his counsel to consult with Dr. Phillip Esplin, an expert in
interviewing techniques and child witness suggestibility. In his
motion, Wellington argued:
There are grounds for challenging the interview techniques used in this case as improper because they were not recorded, because leading questions and anatomical drawings were used, and because the child was not asked about her memories of prior instances of abuse. Such interview techniques, when used on a young child, can undermine the reliability of the children's statements and their subsequent testimony.
(Resp't's Mot. Summ. J., Ex. 1 56 (citing S. C e c i & M. B r u c k ,
Jeopardy in t h e C o u r t r o o m : A Sc i e n t i f i c A n a l y s is of C h i l d r e n 's T e s t i m o n y ,
233-68 (American Psychological Association); State v. Michaels.
642 A.2d 1372 (N.J. 1994); State v. Sargent. 144 N.H. 103
(1999)). Relying on Sargent, Wellington contended that his
defense required an expert to examine the transcript of the
September 24 interview, to explore the possibility of false
memory implantation resulting from improper interviewing
techniques.“
“ Sargent holds that "the proper protocols and techniques used to interview child victim witnesses is a matter not within
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After a hearing, and after reviewing the videotape of the
September 24 interview. Judge McGuire denied Wellington's motion.
She construed Wellington's complaint as being that the initial
interviews with Victoria were not recorded and that
the taped interview [on September 24] was improperly conducted because the interviewers: 1) gave Victoria C. a brownie and allowed her to play a game of "hangman"; 2) asked suggestive and leading questions; and 3) failed to ask her about prior instances of child abuse.
(Resp't's Mot. Summ. J., Ex. 3 at 4.) Based upon her own review
of the videotape. Judge McGuire determined that the interviewers'
conduct was not "unduly suggestive or otherwise improper," id. at
5, because it involved neither "implied promises of reward for
specific evidence," id., nor "any improper leading or incessant
questioning." Id. The judge also noted that the interviewers'
questions were not improperly suggestive, based upon Victoria's
ability to "provide answers to open-ended questions." Id.
Finally, the judge determined that, contrary to Wellington's
assertion, Victoria had not been involved in any prior instances
the knowledge and understanding of the average juror," 144 N.H. at 106 (citations omitted), and that a party may introduce expert testimony on that subject after making "a particularized showing that improper interview techniques were used," id. Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 9 of 20
of child abuse and that, as a result, the interviewers could not
be faulted for failing to inquire about prior sexual abuse. (Id.
at 6 .)
Wellington moved the court to reconsider its denial of funds
to hire Dr. Esplin. In his motion, he advanced the following
reasons:
I. An interview with Dr. Esplin and information from recent depositions show that improper and leading questions were used during the interview of the alleged victim;
II. The deposition of witnesses in this case has shown that the alleged victim was on medication at the time of the interviews, suffers from a mental illness and developmental disabilities which Dr. Esplin has said would affect her developmental age and therefore affect her susceptibility to suggestibility, and;
III. There were multiple unrecorded interviews of the alleged victim prior to her tape recorded interview with the Franklin Police, some of which were conducted by individuals with no training in the proper interviewing of children in this area.
(Resp't's Mot. Summ. J., Ex. 4 at 1-2.) Wellington identified
the following examples of leading questioning:
During the questioning on pages 17-19 of the transcript, leading questions were used in conjunction
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with the anatomical drawings. On page 18, when Victoria drew a line from the circled groin area of one drawing to the other. Detective Hicks said, "what did he try to do with his penis in your vagina?" Three lines later Detective Hicks says, "But what did he do with his penis in your vagina?" On page 19, the technique is repeated when Detective Hicks says, "Yeah How's that? His mouth in your vagina?" Dr. Esplin indicated that these are leading questions and are improper interview techniques.
Id. at 3. Judge McGuire denied Wellington's motion to
reconsider.
Wellington appealed to the New Hampshire Supreme Court.
State v. Wellington. 150 N.H. 782, 784 (2004). The supreme court
affirmed, explaining that "[a]t the time of [Wellington's]
request, he merely pointed out to the trial court, through his
motions and during his motion hearings, that a few improper
techniques may have been employed during the interview without
demonstrating how those improper techniques would affect his
case." Id. at 785. The court further observed that "[i]n all
instances, the defendant, while citing examples of possible
improper interview techniques, failed to point out how, under the
facts and circumstances of his case, those techniques, if
improper, affected the victim's answers so that an expert was
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necessary to ensure effective preparation of his case." Id. at
786 (citing State v. Campbell, 127 N.H. 112, 115 (1985)). The
supreme court found "no evidence that the victim's answers were a
result of any suggestibility that could be attributed to leading
questions or other allegedly improper techniques." Id. at 787.
The court concluded by stating:
The defendant must point to some evidence, aside from mere hope for its existence, which would tend to indicate a causative effect of an improper interview technique, and, in this case, he failed to satisfy that burden.
Id.
In his petition to this court, Wellington asserts that the
New Hampshire Supreme Court's decision was both contrary to and
an unreasonable application of the United States Supreme Court's
decision in Ake v. Oklahoma, 470 U.S. 68 (1985). Specifically,
he asserts that Victoria was subjected to repeated interviews;
that two of the police officers who interviewed her were not
trained in interviewing children; and that the police officers
who interviewed Victoria on September 20 did not tape record
their interviews. He also complains that the interviewers
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conducting the September 24 interview used leading questions and
introduced sexual terms before Victoria did; used anatomical
diagrams before Victoria gave a full description of the alleged
assaults; and offered Victoria a reward, in the form of a game of
hangman, for completing the interview. He also asserts that
Victoria may have been especially vulnerable to suggestion due to
medication she was taking for depression and counseling she was
receiving for poor socialization skills.
Discussion
Respondent moves for summary judgment, arguing that
petitioner was not entitled to the funds he sought because he
never made anything more than "undeveloped assertions" that the
requested assistance was necessary for an adequate defense.
In Ake, the decision upon which petitioner relies, the
Supreme Court held that
when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one.
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Id. at 74. The Court explained that
while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, see Ross v. Moffitt. 417 U.S. 600 (1974), it has often reaffirmed that fundamental fairness entitles indigent defendants to "an adequate opportunity to present their claims fairly within the adversary system," id., at 612. To implement this principle, we have focused on identifying the "basic tools of an adequate defense or appeal," Britt v. North Carolina. 404 U.S. 226, 227 (1971), and we have required that such tools be provided to those defendants who cannot afford to pay for them.
Ake, 470 U.S. at 77 (parallel citations omitted.) In another
opinion, the Supreme Court elaborated on its holding in Ake,
observing that a trial court's refusal to appoint various experts
to assist a criminal defendant did not violate the defendant's
due process rights when he "offered little more than undeveloped
assertions that the requested assistance would be beneficial."
Caldwell v. Mississippi, 472 U.S. 320, 323 n.l (citing Ake, 470
U.S. at 82-83).
A. "Contrary to"
Petitioner concedes that the New Hampshire Supreme Court did
not reach a conclusion different from that reached by the United
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States Supreme Court on a materially indistinguishable set of
facts. Instead, he rests his "contrary to" argument on the
theory that the "state court arrive[d] at a conclusion opposite
to that reached by [the Supreme] Court on a question of law."
Williams, 529 U.S. at 413.
The New Hampshire Supreme Court's decision in Wellington did
not hold that the assistance of an expert, at government expense,
need not be provided to an indigent criminal defendant who has
"made a preliminary showing" that an issue within the requested
witness's expertise was likely to be a significant factor at
trial. Ake, 470 U.S. at 74. Petitioner, rather, argues that the
state supreme court's ruling was contrary to Ake under principles
outlined in Williams v. Matesanz, 230 F.3d 421 (1st Cir. 2000):
[Williams v .1 Tavlor[, 429 U.S. 362] and 0 'Brien [v. Dubois, 145 F.3d 16 (1st Cir. 1998)], read together, shed some helpful light on how [28 U.S.C.] section 2254(d)(1) operates. For example, in discussing when a state court decision would be contrary to clearly established Supreme Court case law, the Tavlor Court noted that "[a] state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases." [529 U.S. at 405]. The Court added that "[a] state- court decision will also be contrary to this Court's clearly established precedent if the state court
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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." Id. at [406]. These statements dovetail with our earlier observation that the "contrary to" prong of section 2254(d)(1) imposes a burden on the petitioner to "show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court." 0"Brien, 145 F.3d at 24-25 (emphasis supplied). Explicating what was meant by this requirement, we stated that "the key inquiry . . . is whether a Supreme Court rule by virtue of its factual similarity (though not necessarily identicality) or its distillation of general federal law precepts into a channeled mode of analysis specifically intended for application to variant factual situations can fairly be said to require a particular result in a particular case." Id. at 25.
230 F .3d at 424-25.
Ake does not require an outcome contrary to that reached by
the New Hampshire Supreme Court in Wellington. For one thing,
the opinion in Ake does not represent a "distillation of general
federal law precepts into a channeled mode of analysis
specifically intended for application to variant factual
situations." Matesanz, 230 F.3d at 425 (emphasis added). There
is nothing in Ake to suggest that the Supreme Court intended its
decision to apply to experts other than psychiatrists or to
situations other than the assertion of a defense based upon the
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defendant's mental condition. Rather than establishing a broadly
applicable general principle, the Ake decision applied the
general principle set out in Britt - that indigent criminal
defendants are entitled to the basic tools of an adequate defense
- to a specific set of facts.
Moreover, Ake plainly contemplates a demonstration of need,
on a case-by-case basis, not a blanket entitlement to all
services requested. In petitioner's view, he made a preliminary
showing of need, by pointing to allegedly improper interviewing
techniques employed by those who interviewed Victoria.
But improper, clumsy, insufficient or deficient interviewing
techniques do not necessarily result in false testimony or
unreliable witnesses. Petitioner failed to link the allegedly
improper interviews to inculpatory testimony at trial. An expert
was not needed to opine on whether questions were leading or the
police interviews deviated from accepted norms, but to testify
that leading questions might have caused the witness to assert
fiction as fact, or to give the interviewers' suggestions as her
own memory. The state supreme court repeatedly observed that
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while Wellington identified several improper interviewing
techniques, he failed to identify any of Victoria's responses
during the interview, or any trial testimony, that may have been
the product of the improper techniques he identified. The court
also noted several instances in which Victoria was asked a
leading question but responded by disagreeing with - and
correcting - the objectionable part of the question, thus
negating any suggestion of implanted memory or testimony. It
seems fairly apparent that Supreme Court precedent requires an
indigent defendant to make a "preliminary showing" that some
inculpatory evidence that an expert might effectively undermine
is likely to be presented, before the state must provide funds to
secure expert services.
Ake does not require a different standard than that employed
by the New Hampshire Supreme Court in Wellington. In Ake, the
defendant's sanity at the time of the offense was "seriously in
question," 470 U.S. at 70, as evidenced by pre-trial behavior so
bizarre that the trial judge, sua sponte, ordered a psychiatric
evaluation of Ake's competency to stand trial, a subsequent
diagnosis of paranoid schizophrenia; and a judicial
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determination, six months after the offense conduct, that Ake was
incompetent to stand trial. Id. at 71.
Here, the record discloses some leading questions by
interviewers, but answers by the victim establishing that she
effectively resisted the "implantation" of inculpatory testimony.
None of her answers were shown to be both inculpatory and
arguably the product of improper questioning. Accordingly, the
state supreme court did not err in holding that funds for an
expert witness on that issue need not be provided, defendant
having failed to meet his burden to make a preliminary showing of
need. The state court's holding was not contrary to Ake or other
Supreme Court precedent.
B. "Unreasonable Application"
Petitioner offers essentially the identical argument under
the "unreasonable application" prong of Williams. (Pet'r's Resp.
to Mot. Summ. J. 5 11.) He contends that the New Hampshire
Supreme Court either derived the wrong rule from Ake, by
requiring him to "explain specifically how an expert would use
the improper interviewing techniques and other factors to aid the
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defense, at a stage in the litigation where the expert had not
had the opportunity to review either the discovery or the video
taped interview," or, misapplied the rule from Ake, by denying
him expert assistance because he could not "explain the expert's
conclusion before the expert [had] conducted a measured review of
the case." Id. For the reasons already given, it was neither
contrary to Ake nor an unreasonable application of Ake for the
New Hampshire Supreme Court to require Wellington to make a
preliminary showing that allegedly improper interviewing
techniques might have resulted in the development (and admission
at trial) of unreliable inculpatory victim testimony, before
public funds would be made available for expert services related
to that defense.
Conclusion
Respondent's motion for summary judgment (document no. 6) is
granted and so, necessarily, Wellington's petition is dismissed.
The clerk of the court shall enter judgment in accordance with
this order and close the case.
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SO ORDERED.
S^teven J/’McAuliffe "hief Judge
September 27, 2005
cc: David M. Rothstein, Esq. Susan P. McGinnis, Esq.