Fennell v. Cunningham CV-95-248-JD 08/15/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Edward Fennell, Jr.

v. Civil No. 95-248-JD

Michael Cunningham, Warden New Hampshire State Prison

O R D E R

The pro se petitioner, Edward J. Fennell, Jr., brought this

action against the respondent, Michael Cunningham, challenging

the constitutionality of his state court convictions for

aggravated felonious sexual assault. Before the court is the

respondent's renewed motion for summary judgment (document no.

22) .

Background

In April, 1985, the petitioner was convicted on four counts

of aggravated sexual assault against three different minor

victims and was sentenced to three terms of to 15 years, to

run concurrently, and one term of 3H to 7 years, to run

consecutively. The petitioner appealed his convictions to the

New Hampshire Supreme Court, challenging the trial court's

refusal to grant a mistrial and the sufficiency of the evidence

against him on one of the four counts. The New Hampshire Supreme Court affirmed the convictions, holding that the trial judge

acted within his discretion in resolving the petitioner's

allegations of juror misconduct, and declining to reach the

petitioner's challenge to the sufficiency of the evidence because

the petitioner had not raised the claim at trial.

In 1988, the petitioner filed a motion to vacate his

convictions on the basis of the ineffective assistance of his

trial counsel. The petitioner claimed that trial counsel was

burdened by a conflict of interest and, in addition, made the

following errors at trial: (1) failed to file a motion to sever

one or more of the charges against the petitioner; (2) failed to

file a bill of particulars so as to enable the petitioner to

present an alibi defense at trial; (3) failed to move for a

mistrial after one of the minor witnesses testified about a bad

act for which the petitioner had not been indicted; (4) failed to

perform adeguate investigation and discovery; (5) failed to move

for a dismissal based on the sufficiency of the evidence on one

of the counts; and (6) failed to reguest a hearing to enable the

petitioner to present evidence that the minor victims were

sexually experienced. The motion was denied.

On appeal, the New Hampshire Supreme Court reversed the

superior court's decision concerning the failure of petitioner's

counsel to move to dismiss one of the indictments, finding that

2 the indictment should have been dismissed and the conviction

vacated. Accordingly, the court dismissed one of the four

convictions and, having affirmed the superior court's order on

all other grounds, remanded the three convictions to the trial

court for resentencing. The petitioner was resentenced to two

concurrent terms of to 15 years and one consecutive term of 3H

to 7 years.

The petitioner filed the instant suit on April 27, 1995.

Discussion

I. Juror Misconduct

The plaintiff's first contention is that juror misconduct

deprived him of the right to a fair and impartial jury.

Specifically, he claims that following the completion of the

first day of the jury's deliberations, one juror said to another

outside the jury room, "When we were children, we didn't do

. . . ," and then, upon seeing the defendant's family, remarked,

"Here comes the family." The petitioner made a motion for a

mistrial the next morning, which the trial judge denied without

conducting a hearing concerning the incident or interviewing the

jurors involved. The petitioner also moved for a mistrial on the

basis of two jurors' admissions that they were aware of the

existence of newspaper and radio reports about the trial but had

3 not heard the contents of those reports. The trial judge

interviewed each of the jurors concerning his or her exposure to

media coverage of the trial and denied the motion.

Trial judges have broad discretion in formulating a response

to allegations of juror misconduct. United States v. Harris,

(11th Cir. 1990), cert, denied,

, and

cert, denied,

(1991), and extrinsic influence on

jurors, Mahoney v. Vonderqritt,

(1st Cir.

1991), cert, denied,

(1992). Here, the trial judge

interviewed each of the jurors concerning any extrinsic

information they had received. Immediately thereafter, he

considered the petitioner's claim regarding the jurors'

conversation outside the jury room. The conversation as reported

was incomplete and may or may not have concerned the petitioner's

trial, and the trial judge was in the best position to assess the

potential for prejudice. The court finds that the trial judge

acted within his discretion in responding to the petitioner's

allegations and concluding that the defendant's right to an

impartial jury had not been violated. The petition for habeas

corpus on the ground of juror misconduct is denied.

4 II. Ineffective Assistance of Counsel

The petitioner's second contention is that he was denied his

Sixth Amendment right to counsel by virtue of the ineffective

assistance trial counsel offered. In order to sustain a claim of

ineffective assistance of counsel, the petitioner must show "both

that trial counsel's performance fell below an objective standard

of reasonableness, and that counsel's deficient performance was

so prejudicial as to undermine confidence in the outcome of the

trial." Argencourt v. United States,

(1st Cir.

1996) (citing Strickland v. Washington,

(1984)). The court's inguiry into the reasonableness of

counsel's performance is highly deferential and reflects a

"strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance."

(guotation

marks omitted). In order to satisfy the "prejudice" prong, the

petitioner "must affirmatively prove a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different."

(guoting Strickland,

(guotation marks omitted)).

A. Counsel's Conflict of Interest

The petitioner first argues that trial counsel, whose law

partner was litigating a civil suit in which the petitioner was a

5 named defendant while the criminal trial was pending, was saddled

with an unconstitutional conflict of interest. The respondent

claims that trial counsel's performance was not deficient because

trial counsel was unaware of his law partner's activities.

In Cuvier v. Sullivan,

(1980), the Supreme

Court held that a criminal "defendant who shows that a conflict

of interest actually affected the adequacy of his representation

need not demonstrate prejudice in order to obtain relief."

. However, the court cautioned that "until a defendant

shows that his counsel actively represented conflicting

interests, he has not established the constitutional predicate

for his claim of ineffective assistance."

.

After conducting a hearing, the superior court determined

that the petitioner's trial counsel was unaware of his law

partner's activities while he represented the petitioner. New

Hampshire v. Fennell, No. S-84-0097-0100, slip op. at 8-9 (N.H.

Sup. C t . May 18, 1989) (McHugh, J.). This finding is entitled to

a presumption of correctness, which the petitioner has failed to

rebut.1 Without knowledge of his law partner's activities, trial

counsel could not have violated Cuvier's prohibition against

1Because the court would reach this result if it applied

(e)(1) (West Supp. July 1994), or its predecessor, 28 U.S.C.A § 2254(d) (West 1994), the court need not address the question of whether § 2254(e) (1) applies retroactively.

6 "actively represent[ing] competing interests," and, thus, could

not have been saddled with an unconstitutional conflict of

interest.

_____ B . Failure to File Motion to Sever

The petitioner next contends that he was prejudiced by trial

counsel's failure to move for severance of at least one of the

charges against him. However, trial counsel testified that the

decision not to sever was made for strategic reasons, i.e.,

because the petitioner had alibi defenses available for three of

the counts, a jury crediting the alibis would be likely to

dismiss the fourth count, which rested on the credibility of one

of the victims. Trial counsel also testified that the petitioner

was consulted about the possibility of severance and did not

voice an objection to trying all four counts at once.

After reviewing the record the court finds that the

petitioner has failed to rebut the presumption that counsel's

decision fell within the range of competent representation. The

decision not to move for severance rested on solid strategic

footing. Moreover, in the opinion of the court it is unlikely

that a motion to sever would have been granted, see State v.

Winders,

,

(1985), or,

given the damaging testimony offered by each of the victims.

7 would have been likely to affect the outcome of the proceedings

against the petitioner.

C. Failure to Move for Dismissal of One of the Indictments

As noted supra, the New Hampshire Supreme Court granted the

relief that the petitioner reguested concerning trial counsel's

failure to move for dismissal of one of the indictments.

However, the mere fact that counsel failed to reguest dismissal

of one of the indictments does not cast doubt on the reliability

of the other three convictions. The court finds that counsel's

error at trial did not prejudice the petitioner with respect to

the convictions for which the petitioner currently is in custody.

D. Failure to Move for Mistrial Based on Evidence of _____ Unindicted Acts

The petitioner next claims that trial counsel should have

moved for a mistrial after one of the victims, in testifying

about an act alleged in the indictment to have occurred in the

attic of another girl's home, testified about what may have been

a separate act in which she performed fellatio on the petitioner

in the other girl's bathroom. However, the court's review of the

record indicates that the victim's account of the incidents in

guestion was somewhat confused, and that trial counsel

effectively explored the inconsistencies in the victim's testimony during cross-examination, thereby reducing any

prejudice to a minimum and, at the same time, casting doubt on

the victim's credibility. As such, the court concludes that the

victim's testimony concerning what may have been an act for which

the petitioner was not indicted was not so prejudicial as to

undermine confidence in the outcome of the trial.

E. Failure to Request a Bill of Particulars

The petitioner claims that trial counsel erred in failing to

reguest a bill of particulars, which, he claims, would have

assisted in the presentation of his alibi defenses. The argument

is unavailing. The indictments and testimony at trial indicated

the particular days on which the assaults were alleged to have

occurred, and the petitioner presented evidence of his

whereabouts on the days in guestion. Thus, assuming arguendo

that a motion for a bill of particulars would have been granted,

the court finds that the plaintiff was not prejudicedby trial

counsel's failure to reguest one. Accord State v.Tynan,

,

(1989).

F. Failure to Request a Howard Hearing

The final basis for the petitioner's ineffective assistance

of counsel claim rests on his trial counsel's failure to reguest a Howard hearing, see State v. Howard,

,

(1981), to determine the admissibility of evidence concerning the

victims' prior sexual activity. Ordinarily, such evidence is

admissible to rebut evidence or suggestion of the victims'

unfamiliarity with sexual experiences. See

,

. However, in this case the graphic vocabulary the victims

used in testifying about sexual acts belies any insinuation the

prosecution might have made that the victims were sexually naive.

Indeed, the victims' language evinced a level of knowledge or

experience in sexual matters beyond their years. Accordingly,

the court finds that the petitioner was not prejudiced by

counsel's failure to seek introduction of Howard evidence.

The petition for habeas corpus on the basis of ineffective

assistance of trial counsel is denied.

Conclusion

The respondent's renewed motion for summary judgment

(document no. 22) is granted. The clerk is ordered to close the

case.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge August 15, 1996 cc: Edward J. Fennell, Jr., pro se John Paul Kacavas, Esguire

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