Cassell v. State of NH CV-95-593-JD 04/15/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jerome E. Cassell

v. Civil No. 95-593-JD

State of New Hampshire

O R D E R

The petitioner, Jerome Cassell, brought this action under

, seeking a writ of habeas corpus. Before the court

is the motion for summary judgment of the respondent, the State

of New Hampshire (document no. 106).

Background

Following a jury trial and based primarily on the testimony

of his victim, the petitioner was convicted in Strafford County

Superior Court in August 1992 for having committed aggravated

felonious sexual assault in violation of N.H. Rev. Stat. Ann.

("RSA") § l 632-A:2.'1 He currently is serving a seven-and-one-half

to fifteen year sentence at the New Hampshire State Prison.

Following his conviction, the petitioner appealed his

conviction to the New Hampshire Supreme Court and also filed a

'in an order on the petitioner's motion to set aside his conviction and for a new trial, the trial judge opined that the victim was among "the most credible witnesses [he had] ever encountered," and described her testimony as "compelling." motion for a new trial and to set aside his conviction in

Strafford County Superior Court. After this motion was denied,

the petitioner appealed the decision to the New Hampshire Supreme

Court. The New Hampshire Supreme Court consolidated his post­

conviction claim with his direct appeal and, on October 24, 1995,

affirmed the plaintiff's conviction. The court expressly

addressed only the petitioner's claim that the trial court

committed reversible error by failing to instruct the jury on the

proper use of his prior convictions for property-related

offenses2 and summarily rejected the petitioner's remaining

twenty-eight claims. See State v. Cassell,

(1995).

While his appeals were pending, the petitioner also filed a

petition for a writ of habeas corpus in state court and a

petition for a writ of mandamus to the New Hampshire Supreme

Court. The trial court denied the habeas petition, and the New

2Under New Hampshire law, a trial judge ordinarily must instruct the jury about the proper use of a defendant's previous convictions if such evidence is elicited on cross-examination for impeachment purposes. See State v. Skidmore,

,

(1993). However, because the petitioner's previous convictions came to light during his direct testimony and because the petitioner did not make a reguest for a limiting instruction, the New Hampshire Supreme Court ruled that none was reguired in the petitioner's case. See State v. Cassell,

,

, 954 (1995) (noting that "the trial court could reasonably have determined that the [petitioner's] counsel elicited this information as a matter of trial tactics and that counsel did not want to call further attention to it through an instruction to the jury").

2 Hampshire Supreme Court denied both the appeal of that denial and

the mandamus petition, without prejudice to the petitioner's

rights to raise his properly preserved claims in his appeal. The

instant petition was filed on December 11, 1995.

Discussion

The court has gleaned ten separate categories of arguments

from the petitioner's voluminous pleadings in support of his

assertion that he is "in custody pursuant to the judgment of a

State court . . . in violation of the Constitution or laws or

treaties of the United States."

(a) (West

1994). The court considers the petitioner's assertions

seriatim.3

(d) was amended effective April 24, 1996, to provide that

[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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 to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

The United States Supreme Court has granted certiorari to determine whether the amendment to § 2 2 5 4 (d) applies to habeas petitions, such as the current one, that were pending as of April

3 A. Fifth Amendment Violation

The petitioner first asserts that his conviction was

obtained in violation of his right against self-incrimination

because certain statements he made to James Trueman, the chief of

police of Middleton, New Hampshire, were admitted into evidence.

Specifically, the plaintiff objects to Trueman's testimony

concerning a telephone conversation between the petitioner and

Trueman about the alleged assault after the petitioner had been

taken into custody, and to testimony concerning a conversation

about the assault between the petitioner and Trueman while

Trueman was driving the petitioner to his arraignment.

The petitioner's claims are without merit. Distinct from a

petitioner's rights under Miranda v. Arizona,

(1966), the Fifth Amendment "limits prosecutors' ability to use

testimony that has been compelled." Baltimore City Dep't of

Social Servs. v. Boukniqht,

(1990) (collecting

cases). The petitioner has offered no factual or legal basis to

support his contention that he was compelled to provide

24, 1996. See Lindh v. Murphy, 117 S. C t . 726 (1997), granting cert, to Lindh v. Murphy,

(7th Cir. 1996) (holding that amendment applies to habeas petitions filed prior to April 24, 1996). Because the petitioner has failed to establish that he would be entitled to habeas relief either under the current § 2254 or under the more deferential pre-amendment standard of review, the court need not address the retroactivity guestion currently before the Supreme Court.

4 information to Trueman during a telephone conversation during

which he was free to hang up. See generally United States v.

Lawrence,

(1st Cir. 1989) (statement is

compelled if it is result of physical or psychological pressures

that can override defendant's wil l ) . As to the petitioner's

contention concerning his conversation about the alleged assault

with Trueman en route to his arraignment, it was the petitioner

who introduced evidence of the statements he made during that

conversation.4 Because no prosecution witness, including

Trueman, testified that the petitioner made incriminating

statements during this conversation, it follows that no compelled

testimony was used against the petitioner.

B. Violation of Petitioner's Miranda Rights

The petitioner next contends that his statements during the

above-mentioned conversations with Trueman were erroneously

admitted because he was not read his Miranda rights prior to the

commencement of custodial interrogation. These contentions also

4During cross-examination, the petitioner testified that he told Trueman on the way to his arraignment that the victim had rubbed his back on the day of the alleged assault. On rebuttal, Trueman denied that the petitioner made the statement in guestion, and testified that he informed the petitioner of his Miranda rights and cautioned him not to talk about the case as soon as he started to do so.

5 are unavailing. As noted above, the statements made in the car

were introduced by the petitioner, and thus are not subject to

Miranda's exclusionary rule. As to the introduction of the

statements made by the petitioner during his telephone

conversation with Trueman, the record indicates that these

statements were elicited by the prosecution during its rebuttal

for the purpose of impeaching the petitioner's trial testimony

suggesting that (1) the victim had rubbed the petitioner's back

on the day that the sexual assault was alleged to have taken

place; and (2) the petitioner had seen the victim walking on the

side of the road on the day of the assault, appearing to be

"crazy-eyed." The court finds no error in the admission of this

evidence for the purpose of impeaching the petitioner's

testimony. See Harris v. New York,

(1971).

C. Prosecutorial Misconduct

1. Closing Argument

The petitioner claims that the prosecutor accused defense

counsel of being a liar, made prejudicial remarks about the

petitioner, and vouched for the credibility of prosecution

witnesses during his closing argument. However, the court has

reviewed the prosecutor's closing argument and finds no evidence

that prosecutorial misconduct "so poisoned the well that a new

6 trial is required." United States v. Manning,

(1st Cir. 1994) (citation and quotation marks omitted). Althouqh

at one point the prosecutor suqqested to the jury durinq his

closinq arqument that the evidence presented by the defendant was

"an attempt to mislead you, to mischaracterize what the evidence

in this case is about and they've done it throuqhout the case"

and at other times used similar rhetoric, the trial judqe

cautioned the jury that

attorneys are allowed to make arquments as to what they believe the evidence has shown and what they believe the law is but it is not appropriate or proper to say that an attorney is attemptinq or tryinq to mislead anybody. If one side arques that the other side's evidence is misleadinq or a witness is tryinq to be misleadinq, that's one thinq but it is not appropriate, you should not return any verdict based on any statement that you think came from [the prosecutor] that [defense counsel] is attemptinq to mislead by either his questions or by his defense.

In liqht of the content and context of judqe's curative

instructions and the strenqth of the victim's direct testimony

aqainst the petitioner, the court cannot conclude that the

prosecutor's conduct was likely to have affected the trial's

outcome. See i d . (identifyinq relevant factors).

7 2. Use of Perjured Testimony and Conspiracy to Convict the Petitioner

Relying on various inconsistencies in the testimony

introduced at trial, the petitioner asserts that the prosecution

knowingly introduced perjured testimony. Relatedly, the

petitioner contends that the prosecution was involved in an

overarching conspiracy to convict him that included the

alteration and fabrication of evidence and the nondisclosure of

exculpatory evidence. The court has reviewed these claims and

finds them to be without any evidentiary support and therefore

without merit. See, e.g.. United States v. Lebon,

(1st Cir. 1993) (per curiam) (citing Tapia v. Tansy,

(10th Cir. 1991)).

D. Ineffective Assistance of Counsel

The petitioner next contends that he was denied the

effective assistance of counsel guaranteed by the Sixth Amendment

because trial counsel was burdened with a conflict of interest

and because trial counsel made a series of errors at or in

preparation for trial.5

5In assessing this claim, the court notes that at the hearing on his motion for a new trial and to set aside his conviction, the petitioner refused to permit the prosecutor to guestion his trial counsel, citing attorney-client privilege. In Cuvier v. Sullivan, 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."

(1980). 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." I d . at 350. Here, the

petitioner has offered only his bare assertion that his trial

counsel defrauded him out of money, apparently by moving to

withdraw after the entry of the verdict against the defendant.

The petitioner's allegation is insufficient to warrant an

inference that counsel actively represented conflicting

interests, and thus does not constitute a meritorious basis for

habeas relief.

To succeed on his claim of ineffective assistance of counsel

based on counsel's deficient performance at or in preparation for

trial, 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 inquiry 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." I d . (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."

I d . (guoting Strickland,

(guotation marks

omitted)).

At least three of the petitioner's seven separate

assignments of error by trial counsel rest on misunderstandings

of the applicable law. Although the petitioner claims that trial

counsel should have objected to the introduction of one

prosecution witness's testimony concerning the victim's

reputation for truthfulness, this evidence was admissible because

the petitioner's trial counsel had previously attempted to

undermine the victim's credibility by suggesting that she had

fabricated her story. See N.H. R. Evid. 608(a). Similarly, as

noted supra, trial counsel's failure to move prior to trial for

suppression of the petitioner's statements made during a

telephone call with Trueman did not constitute deficient

performance because the statements were properly admitted for

impeachment purposes. Finally, the record indicates that trial

10 counsel did not confuse New Hampshire Rules of Evidence 404 and

609. Despite trial counsel's submission of a motion in limine to

suppress the petitioner's prior convictions, these convictions

were admitted under Rule 609, at the trial court's discretion,

for the purpose of impeaching the petitioner's credibility.

Turning to the petitioner's remaining claims of ineffective

assistance of counsel, the court will not second-guess trial

counsel's decision to bring to the jury's attention the fact that

the petitioner was incarcerated after being arrested. The

petitioner refused to permit his trial counsel to testify during

his postconviction hearing in state court and therefore has

necessarily limited the information available to the court to

assess his ineffective assistance claims. The court will not

speculate about the strategic decisions of counsel. In any

event, the references to the petitioner's incarcerated status

were limited to his brief incarceration following his arrest for

the crime with which he was charged, and both defense counsel and

the trial judge emphasized to the jury that the petitioner was

innocent until proven guilty. Under these circumstances, and in

light of the strength of the victim's testimony, there is no

reasonable probability that the outcome would likely have been

different but for trial counsel's decision.

Nor does the court find fault with trial counsel's closing

11 argument. Although the petitioner has characterized it as a

"hodge-podge of musings of different defense theories," the

record indicates that trial counsel's closing argument exposed

several inconsistencies in the prosecution's case and fell within

the wide realm of competent representation.

Finally, as to the petitioner's contentions that trial

counsel failed to object to certain out-of-court statements made

by the victim, in spite of his prolific filings he has failed to

carry his burden of identifying the unobjected-to statements in

guestion and of establishing the prejudice resulting from their

admission. Similarly, as to the petitioner's contention that

trial counsel failed to elicit opinion testimony of his good

character, he has failed to establish that such testimony would

have been reasonably likely to change the outcome of the trial.

E. Trial Court's Abuse of Discretion and Misinterpretation of the Law

This assertion relates to the petitioner's contention that

the trial judge improperly admitted evidence of his prior

convictions under N.H. R. Evid. 609 for the purpose of impeaching

his credibility. However, as noted supra, the petitioner has

failed to demonstrate that this evidence was improperly admitted.

Moreover, it is well-settled that "habeas review does not

12 ordinarily encompass garden-variety evidentiary rulings,"

Palmariello v. Superintendent of M.C.I. Norfolk,

(1st Cir. 1989), and that habeas relief is only available to

correct evidentiary errors of constitutional magnitude, see Allen

v. Snow,

(1st Cir. 1980) (error must "so infuse

the trial with inflammatory prejudice as to render a fair trial

impossible" (guotation marks omitted)). The introduction of the

petitioner's prior convictions, which were unrelated to the crime

with which he was charged and admitted solely for impeachment

purposes, does not rise to such a level.

F. Improper Introduction of Evidence

The petitioner next contests the admission of evidence

indicating that the petitioner was incarcerated as a result of

the victim's allegations of sexual assault. However, as noted in

the court's discussion of the petitioners's ineffective

assistance of counsel claim, the admission of this evidence was

not so prejudicial as to undermine confidence in the outcome of

the trial, let alone to "so infuse the trial with inflammatory

prejudice as to render a fair trial impossible."

To the extent the petitioner's evidentiary claim is based on

the introduction of perjured testimony and the trial court's

decisions concerning the admissibility of certain evidence, the

13 claim is denied for the reasons set forth in parts C.2. and

respectively. To the extent the plaintiff's claim is

based on his assertion that the evidence adduced at trial,

namely, the victim's testimony that she was raped by the

petitioner, is insufficient to support his conviction, this claim

is without merit. See infra part H.

G. Judicial Bias

The petitioner's next argument is that the trial judge

failed to preside over his trial and over his sentencing in an

impartial manner. In support of his argument, the petitioner

points to the comments made by the judge in responding to the

petitioner's reguest for a new attorney prior to the commencement

of his sentencing hearing,6 and to the fact that the judge's

6In granting the petitioner's reguest for a continuance and the petitioner's attorney's motion to withdraw, the trial judge stated to the petitioner:

I'm going to continue this case, we're going to appoint a lawyer for you. But no matter what you do--let me make it clear to you right now. You can fire your next lawyer, you can throw a knife at your lawyer, your next lawyer can insult you until you're blue in the face. You're either going to be represented by that lawyer or you're going to represent yourself at the final [sentencing] hearing. You call off any witnesses, you do anything on your own that delays that, you might as well face the conseguences. Do you understand that?

The judge later informed the petitioner that his sentencing

14 daughter was the assistant attorney general of state of New

Hampshire at the time of the petitioner's trial.7

A habeas petitioner alleging a denial of due process based

on judicial bias must prove either that the judge actually was

biased against the petitioner, or that the appearance of bias is

"so substantial as to create a conclusive presumption of actual

bias." Fero v. Kerbv,

(10th Cir. 1994)

(guotation marks omitted); see also Bracv v. Gramlev,

(7th Cir. 1996), cert, granted, 117 S. C t . 1726 (1997).

None of the examples of bias asserted by the petitioner, whether

considered individually or collectively, satisfy this standard.

The trial judge made the statements about which the petitioner

has complained in response to the petitioner's reguest for a

continuance of his sentencing, which the petitioner filed after

having lodged a disciplinary complaint against his second

attorney and informing the court that he was unprepared to

proceed without a new attorney. Although the trial judge clearly

was frustrated with the petitioner's actions, he granted the

petitioner's reguest for a new attorney and gave him a full

hearing would not be delayed again "for any reason short of nuclear attack."

7In addition, the judge's son-in-law worked for the public defender's office.

15 opportunity to prepare for his sentencing hearing. With respect

to the petitioner's assertion that the judge should have recused

himself because of his daughter's and son-in-law's employment

with the New Hampshire Attorney General's office and the Public

Defender's office, respectively, this claim does not present a

sufficiently substantial bias to reguire recusal. C f . Fero,

(no conclusive presumption of bias where trial

judge's son worked as law clerk in district attorney's office and

attended trial); Dyas v. Lockhart,

(8th Cir.

1983) (no conclusive presumption of bias where judge was uncle of

prosecuting attorney and brother and father of two deputy

prosecuting attorneys who participated in trial) .

H. Constitutionality of Conviction Under RSA § 632-A:2

The petitioner contends that his conviction under RSA § 632-

A:2 is unconstitutional because it was obtained solely on the

basis of the victim's testimony, without any corroborating

physical evidence.8 This claim is without merit. As noted

above, the victim gave "compelling" testimony that she was

8RSA § 632-A:6 provides: "The testimony of the victim shall not be reguired to be corroborated in prosecutions under this chapter." RSA § 632-A:6 (1986). To the extent the petitioner reguests a declaration that this provision is unconstitutional, the court declines to create such a blanket rule.

16 sexually assaulted by the petitioner, and the court's review of

the trial transcript confirms this conclusion. Under these

circumstances, the court cannot conclude that "no rational trier

of fact could have found proof of guilt beyond a reasonable

doubt." Jackson v. Virginia,

(1979); c f .

Gilbert v. Parke,

(6th Cir. 1985) (rape

victim's testimony that habeas petitioner forced her to enter

car, drove her to secluded area, and raped her sufficient to

sustain conviction).

I. Instructions to Jury Concerning Petitioner's Prior Convictions

The petitioner next asserts that habeas relief is warranted

because the trial court failed to instruct the jury concerning

the proper use of his prior convictions.9 To the extent this

argument presents a due process claim that might entitle him to

habeas relief, it is unavailing. The petitioner has provided,

and the court has found, no support for the proposition that due

process entitles a defendant who has not made a reguest for a

cautionary instruction concerning the use of prior convictions to

such an instruction. Because the court is not empowered to

9As noted supra, evidence of the petitioner's two prior property-related convictions were elicited during the petitioner's direct examination.

17 create new rules of criminal procedure on habeas review either

under the case law established prior to the April 24, 1996,

amendments to § 2254, see Teague v. Lane,

(1989), or under the 1996 amendments, see

(d)(1) (West Supp. July 1996), the petitioner's argument

fails.

J. Pre-Sentence Report

The petitioner's final contention is that the trial judge

improperly relied on a pre-sentence report prepared by a

probation officer whose supervisor, a former parole officer for

the petitioner, had been named by the petitioner in a federal

conspiracy complaint. However, the petitioner has failed to

articulate any evidentiary basis to support his allegation of

bias on the part of the probation officer who prepared the report

or his supervisor, and has not presented to the court any factual

inaccuracies in the report.10

10The court notes that the petitioner declined to meet with the probation officer who was preparing the report and opted not to read it prior to his sentencing.

18 Conclusion

For the foregoing reasons, the respondent's motion for

summary judgment (document no. 106) is granted. The clerk is

ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge

April 15, 1997

cc: Jerome E. Cassell Jeffrey S. Cahill, Esguire

19