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,

,

289-90 & n. 6 (1992); Sumner v. Mata,

(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,

(1st Cir.

1994), cert. denied,

(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,

(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,

(1984); Scarpa,

;

United States v. Natanel,

(1st Cir. 1991),

state court factual findings. See

(d) (West 1994) . cert. denied,

(1992).

First, the petitioner must establish that counsel's conduct

was unreasonable under professional norms prevailing at the time

of the conduct. See Strickland,

; Scarpa,

; Natanel,

. 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,

(guoting Powell v. Alabama,

(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,

(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,

(citing

Engle v. Isaac,

(1982)).

Second, petitioner must show that counsel's asserted

deficiencies resulted in actual prejudice. See Strickland, 466

-8- U.S. at 691-92; Scarpa,

. In other words, petitioner

must show that, but for counsel's conduct, the trial outcome

would have been different. See Strickland,

;

Scarpa,

. 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,

(1st Cir.). cert. denied,

(1996); Stetson

was not entitled to Miranda warnings when he made his statements

-10- because he was not "in custody," see Thompson v. Keohane,

(1995); and Stetson's statements to the police were

not involuntary, see United States v. Burns,

(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,

(8th Cir. 1997); Kubat v. Thieret,

(7th Cir.), cert. denied,

(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,

(1st Cir. 1991) (citing United States v.

Crpnic,

, 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,

; Scarpa,

.

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,

; Scarpa,

.

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;

(West 1994); United States

v. Whiffen,

(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,

(1st Cir. 1989), vacated on other

grounds,

(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,

(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,

(1st Cir. 1996); Lema

v. United States,

(1st Cir. 1993). Because

Stetson cannot refute the presumption of reasonableness, he has

no basis for an ineffective assistance of counsel claim. See

Strickland,

; Scarpa,

.

-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-