Lavallee v . Warden, NH State Prison CV-02-174-JM 01/07/03 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Randy Lavallee

v. Civil N o . 02-174-JM Opinion N o .

Jane Coplan, Warden New Hampshire State Prison, et a l .

ORDER

Petitioner Randy Lavallee is currently serving a sentence at

the New Hampshire State Prison for Men (“NHSP”). In this action,

Lavallee seeks a federal writ of habeas corpus claiming that the

New Hampshire state courts improperly refused him relief after

determining that certain exculpatory evidence was not disclosed

timely in his criminal case. Lavallee argues in his petition

that the state court decisions are contrary to clearly

established federal law under Brady v . Maryland,

(1963), and its progeny.

The Respondent in this action is Jane Coplan, NHSP Warden.1

1 The New Hampshire Attorney General was served as an additional Respondent. Under

, the state attorney general must be provided notice prior to a hearing on a petition for a writ of habeas corpus, but need not file an answer. See Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts Respondent filed a motion for summary judgment on Lavallee’s

petition under Rule 11 of the Rules Governing § 2254 Cases and

Rule 56 of the Federal Rules of Civil Procedure. Respondent

contends that the record demonstrates that there is no genuine

issue of material fact, and that she is entitled to judgment as a

matter of law. Lavallee filed an objection.

Based upon my review of the parties’ submissions, I find

that the State of New Hampshire (the “State”) was responsible for

a violation of Lavallee’s constitutional right to discover

exculpatory evidence. I further find the Court may not determine

whether there is a reasonable probability that had the

exculpatory evidence been disclosed timely the result of

Lavallee’s criminal trial would have been different without

reviewing the entire state court record. Accordingly, for the

reasons set forth below, Respondent’s motion for summary judgment

is denied.

Background

When Lavallee’s stepdaughter, Alicia, was sixteen years old,

she reported to the police that Lavallee regularly molested her

when she was between the ages of twelve to fourteen years old.

(“Rules Governing § 2254 Cases”). 2 The State commenced a criminal investigation against Lavallee and

referred the matter for investigation to the New Hampshire

Department of Health and Human Services, Division of Children,

Youth and Families (“DCYF”). DCYF instituted an abuse and

neglect proceeding against Alicia’s mother. DCYF placed Alicia

in foster care and remained in contact with Alicia through the

time of Lavallee’s criminal trial.

Lavallee was indicted by a grand jury on multiple counts of

sexual assault. Prior to trial in the Hillsborough County

Superior Court, Lavallee moved for a court order requiring DCYF

to disclose its records pertaining to Alicia. Lavallee contended

that it was likely that the records contained exculpatory

evidence. The trial court agreed with Lavallee and ordered that

the entire DCYF file be disclosed to the parties. See T r . of

Hr’g on Pending Mot., Hillsborough County Super. C t . (Lynn, J . ) ,

Jan. 2 8 , 1998, at p p . 32-33. The trial court justice stated at

the hearing on Lavallee’s motion, “I’ll leave it to you, M r .

Harding [the prosecutor], to contact [DCYF]; and I’ll issue an

order saying that they turn that file over to the parties . . .

.” Id. DCYF forwarded the file to the prosecutor’s office,

which provided the file to the defense.

3 The criminal case against Lavallee was tried before a jury

over five days in February 1998. Alicia was the State’s primary

witness. The defense used portions of the DCYF file during

cross-examination. Following the close of evidence, while the

jury was deliberating, a DCYF employee notified the prosecutor

that some records from the DCYF file were omitted when the file

was originally turned over to the prosecutor’s office. The

undisclosed records consisted of 39 pages of typed and

handwritten notes detailing contacts between a DCYF caseworker

and Alicia, her family, and foster-care providers beginning

shortly after the accusations against Lavallee were made and

continuing through the time of trial. The prosecutor promptly

informed the defense and the trial court of the omitted evidence.

After reviewing the newly produced DCYF records, Lavallee’s

counsel moved for dismissal of the indictments based on the

Supreme Court’s decision in Brady v . Maryland. The defense

argued that the undisclosed records contained impeachment

evidence that supported the defense theory that Alicia fabricated

the allegations against Lavallee. After a hearing, the trial

court denied Lavallee’s motion. The trial court analyzed

Lavallee’s arguments under Brady v . Maryland and State v . Laurie,

4

,

(1995), and made the following rulings

on the record:

Well, first of all, I don’t think that –- [DCYF] is an agent of the State for purposes of the Brady rule in this case. So for that reason alone, I don’t think that your request would have any merit. Secondly, I don’t think that this material rises to the level of Brady material which would make a reasonable probability of a different result, . . . . I don’t think the things you’ve pointed to rise to the level of material necessary to meet a Brady –- the Brady test of reasonable probability of a different result. By and large, the material is cumulative and really doesn’t add a heck of a lot with regard to . . . what is already in the evidence. And the other matters you relate t o , they’re, in my opinion, not so weighty as to produce a reasonable probability of a different result if there were a guilty verdict on one or more of the charges. So the motion is denied.

Tr. of Jury Trial (Day 5 ) , Hillsborough County Super. C t .

(Hollman, J . ) , Feb. 1 2 , 1998, at p p . 21-22. Lavallee was

convicted on all charges except on a charge of second-degree

assault, on which he was acquitted.

On April 2 0 , 1998, Lavallee filed a pro se motion to set

aside the verdict. The trial court denied the motion on November

2 , 1998 following a two-day hearing. Lavallee was then sentenced

to serve 22 and ½ to 45 years at NHSP.

Lavallee filed an appeal in the New Hampshire Supreme Court.

On November 2 2 , 2000, the court affirmed the convictions.

5 Lavallee filed a motion for reconsideration of that decision, but

the court denied the motion on January 3 1 , 2001.

On February 6, 2001, Lavallee filed a motion for a new trial

in the trial court. The trial court denied the motion after a

hearing on April 1 3 , 2001. The trial court denied Lavallee’s

motion to reconsider that decision on May 2 5 , 2001. The New

Hampshire Supreme Court declined to accept an appeal on

Lavallee’s motion for a new trial on July 1 7 , 2001.

Lavallee filed his petition for a federal writ of habeas

corpus on April 1 6 , 2002.

Standard of Review

Summary judgment is appropriate in a habeas proceeding when

“the pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c). A genuine issue is one “that properly can be

resolved only by a finder of fact because [it] . . . may

reasonably be resolved in favor of either party.” Anderson v .

Liberty Lobby, Inc.,

4 2 , 250 (1986). A material fact

is one that affects the outcome of the suit. See id. at 248.

6 Lavallee’s petition is subject to the standards of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), P.L. N o .

104-132,

(1996). Under the AEDPA, the federal

courts may not grant a writ of habeas corpus to a state prisoner

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 t o , or involved an unreasonable application o f , clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) 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.

(d) (West 2002).

Lavallee contends that this Court should give his federal

claim de novo review because the New Hampshire Supreme Court did

not separately address the merits of that claim. On direct

appeal, the court considered Lavallee’s arguments under Part I ,

Article 15 of the New Hampshire Constitution.2 The court stated:

2 Part I , Article 15 of the New Hampshire Constitution is entitled Right of Accused. The Article provides in relevant part:

Every subject shall have a right to produce all proofs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defense, by himself, and counsel. No subject shall be arrested, imprisoned, despoiled, or deprived of his

7 “‘Because Part I , Article 15 of the New Hampshire Constitution is

at least as protective of the defendant’s rights as the Due

Process Clause of the Fourteenth Amendment, . . . we do not

engage in a separate federal analysis.’” State v . Lavallee,

2 4 , 4 2 7 ,

7 1 , 672-673 (2000) (quoting State v .

Marti,

0 8 , 6 1 1 ,

1 4 , 417 (1999)). Thus, the

court expressly indicated that it did not conduct a separate

analysis of Lavallee’s federal claim.

If the New Hampshire Supreme Court were the only state court

that considered Lavallee’s federal claim, I would agree with his

argument that this Court should give his claim de novo review.

It is clear, however, that the trial court adjudicated the merits

of Lavallee’s claim. The trial court held a hearing on

Lavallee’s Brady claim during which it analyzed the merits of the

claim and made findings on the record. The trial court’s

decision on Lavallee’s claim was an adjudication on the merits to

property, immunities, or privileges, put out of protection of the law, exiled or deprived of his life, iberty, or estate, but by the judgment of his peers, or the law of the land.

N.H. Rev. Stat. Ann., Constitution of New Hampshire, Part I , Art. 15 (Equity Follows The Law Publishing C o . 1988 e d . ) .

8 which this Court must give deference under

(d). 3

I. Supreme Court Precedent on Disclosure of Exculpatory Evidence

In Brady v . Maryland, the Supreme Court found that “the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment irrespective of the

good faith or bad faith of the prosecution.”

7 . It

is well-settled that impeachment evidence must be disclosed to

the defense pursuant to Brady. United States v . Bagley,

(1985); Giglio v . United States,

5 0 , 154

(1972). It is also well-settled that a Brady violation may occur

in cases of a prosecutor’s inadvertent failure to disclose.

Strickler v . Greene,

(1999); see also, United

States v . Agurs,

7 , 110 (1976) (the constitutional

obligation to disclose under Brady is not measured by the moral

culpability or willfulness of the prosecutor). Accordingly, it

is of no consequence to Lavallee’s federal claim that the State

3 It should also be noted that for purposes of the federal court’s review under § 2254, a factual determination made by the state court is presumed to be correct and the petitioner bears the burden of rebutting that presumption by clear and convincing evidence. See

(e).

9 did not act in bad faith in failing to disclose impeachment

evidence until after the jury began deliberating.

The state’s obligation to produce exculpatory evidence is

not limited to the evidence in the prosecutor’s possession. In

Kyles v . Whitley,

(1995), the Supreme Court found

that:

the prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that i s , a failure to disclose is in good faith or bad faith, see Brady,

7 , 83 S . Ct., at 1196-1197), the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.

. The Court’s earlier decision in

Pennsylvania v . Ritchie,

9 , 57-58 (1987), is consistent

with the broad language used in Kyles. In Ritchie, the Court

indicated that records held by a state protective service agency

may be the subject of a Brady violation. The Court recognized

that the defendant’s right to due process had been violated based

on the agency’s refusal to turn over material records to the

defense in response to the defendant’s subpoena.

-

58. The Court found that due process outweighed the state’s

interest in keeping the records confidential, and the Court

10 mandated disclosure of the records to the defendant after in

camera review by the court for materiality.

at 5 8 .

In 1999, the Supreme Court clarified the requirements of a

Brady violation in Strickler v . Greene. There the Court found

that three elements must be established before a defendant can

show that a true Brady violation has occurred: “The evidence at

issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must have

been suppressed by the State, either willfully or inadvertently;

and prejudice must have ensued.”

.

II. Requirements of

(d)(1)

This Court must consider Lavallee’s Brady claim in light of

the requirements of the AEDPA. Under the AEDPA, Lavallee must

demonstrate that the trial court’s ruling on the scope of the

State’s duty to disclose exculpatory evidence was “contrary t o ,

or involved an unreasonable application o f , clearly established

Federal law, as determined by the Supreme Court of the United

States.” See

(d)(1). On review of his claim,

this Court must independently consider the “contrary to” and

“unreasonable application” clauses in § 2254(d)(1). “A federal

habeas court may issue the writ under the ‘contrary to’ clause if

11 the state court applies a rule different from the governing law

set forth in [Supreme Court] cases, or if it decides a case

differently than [the Supreme Court has] done on a set of

materially indistinguishable facts.” Bell v . Cone,

,

--, 122 S . C t . 1843, 1850 (2002) (citing Williams v . Taylor,

6 2 , 406 (2000)). The federal habeas court may grant relief

under the “unreasonable application” clause if “the state court

correctly identifies the governing legal principle” from the

Supreme Court’s decisions, “but unreasonably applies it to the

facts of the particular case.” Bell, 122 S . C t . at 1850;

Williams, 529 U.S. at 407-409.

In considering Lavallee’s motion to dismiss the indictments,

the trial court ruled that DCYF is not an agent of the State for

purposes of the Brady rule. On appeal, the New Hampshire Supreme

Court followed the trial court’s lead with respect to its

determination that DCYF is not “the State” under New Hampshire

law. That court found that the prosecutor’s duty to produce

exculpatory evidence “extends only to evidence in the

prosecutor’s possession or in the possession of a law enforcement

agency charged with the investigation and presentation of the

case.” Lavallee,

2 7 , 765 A.2d at 673. According to

12 the court, the reason for imputing the police’s knowledge to the

prosecution arises from the special relationship that exists

between the prosecution and law enforcement in investigating and

prosecuting criminal conduct. Id., citing 1 R. McNamara, New

Hampshire Practice, Criminal Practice and Procedure §§ 1 2 , 14 (3d

ed. 1997). 4 The court found that “there is no similar

justification for imputing DCYF’s knowledge of the existence of

possibly exculpatory evidence to the prosecution.” Id.

The state courts’ rulings that the State had no duty to

produce the suppressed DCYF records is “contrary to” clearly

established federal law because the state courts applied a rule

that is different from the governing law set forth in Supreme

Court precedent. In Pennsylvania v . Ritchie, the Supreme Court

clearly indicated that the type of evidence at issue here may be

the subject of a Brady violation.

. In

discussing the state’s duty to disclose, the Court made no

distinction between the prosecution and a state protective

service agency that possessed exculpatory evidence sought by the

defense. Rather, the Court recognized that the defendant’s right

to due process had been violated based on the state agency’s

4 The sections of the New Hampshire Practice series cited by the New Hampshire Supreme Court do not discuss any federal law.

13 refusal to turn over material records in response to the

defendant’s subpoena. Ritchie,

. The Court

found that due process required disclosure of the records to the

defendant after in camera review by the court for materiality.

. 5

The limitation that the state courts imposed on the State’s

duty to disclose exculpatory evidence contradicts the broad

language used by the Supreme Court in Kyles v . Whitley. The

Court found in Kyles that: “the prosecutor has a duty to learn of

any favorable evidence known to the others acting on the

government’s behalf in the case, including the police.”

. The Court’s use of the phrases “any favorable

evidence known to others” and “including the police” shows that a

state’s obligation to produce exculpatory evidence may extend

beyond law enforcement.

The policy justification behind the Brady rule is to ensure

5 In State v . Gagne,

0 1 , 105,

(1992), the New Hampshire Supreme Court adopted the same standard for disclosure of DCYF records under New Hampshire law as the Supreme Court set forth Ritchie. The New Hampshire Supreme Court noted in Gagne that the issue raised by the defendant in Ritchie was remarkably similar to the issue before the court and that the “CYS file” in Ritchie was similar to the file at issue in Gagne. Id. at 105,

. It is not clear from the record, but the New Hampshire Supreme Court may have overlooked Gagne when it considered Lavallee’s direct appeal.

14 that a miscarriage of justice does not occur. United States v .

Bagley,

; see also, Strickler v . Greene,

(finding that the American prosecutor has a special role

to play in ensuring that justice is done in criminal cases). In

Ritchie, the prosecutor’s knowledge of the records possessed by

the state agency, or lack thereof, played no part in the Court’s

decision. The justification discussed by the New Hampshire

Supreme Court for limiting the State’s obligation to disclose

exculpatory evidence -- focusing on the special relationship

between the prosecutor and law enforcement -- differs from the

Supreme Court’s focus on preventing a miscarriage of justice.

While the New Hampshire Supreme Court’s decision in State v .

Lavallee is binding New Hampshire precedent, the standard that it

applies to the scope of the State’s duty to disclose exculpatory

evidence is inconsistent with the federal standard.

To be clear, I do not find that the Supreme Court held in

Pennsylvania v . Ritchie and Kyles v . Whitley that prosecutors

have an obligation to survey every state agency to determine

whether the agencies possess potentially exculpatory evidence.

Where as in this case, however, the state has a statute

pertaining to the disclosure of confidential state records, and

15 the trial court has ordered the prosecutor to produce those

records to the defense, the disclosure obligations of Brady v .

Maryland, and its progeny, apply.

I find that the trial court’s decision that the prosecutor,

and therefore the State, had no duty under Brady to produce the

DCYF records that were suppressed in Lavallee’s case, despite the

trial court’s pretrial order requiring production, is contrary to

federal law as decided by the Supreme Court of the United States.

I further find, therefore, that Lavallee has satisfied the

conditions of § 2254(d)(1) necessary to proceed further with this

action.

III. Untimely Disclosure of Material Evidence

The Respondent argues that even if the State had a duty to

produce the suppressed DCYF records to Lavallee, the State

fulfilled its duty by producing those records to Lavallee before

his criminal case concluded. Respondent contends that Lavallee’s

claim of prejudice is without merit because he chose to not ask

for a mistrial or to move to reopen the case for further cross-

examination. Lavallee responds that the State’s disclosure,

during the jury’s deliberations, was in effect a nondisclosure.

Lavallee’s argument invokes a “well-established extension of

16 [the Brady] rule prohibiting unwarranted delays in the disclosure

of material evidence.” United States v . Lememmer,

(1st Cir. 2002) (citing United States v . Ingraldi,

(1st Cir. 1986)). Delayed disclosure of exculpatory

evidence by the prosecution does not automatically entitle a

defendant to a new trial. In United States v . Osorio,

(1st Cir. 1991), the court held that in cases involving

delayed disclosures, “the critical inquiry is . . . whether the

tardiness prevented defense counsel from employing the material

to good effect.” Id.; see also, Ingraldi,

(the

effect of a delayed disclosure “depends on the extent the

defendant actually managed to use the information in the files

despite the delay.”).

I find that Lavallee was denied any opportunity to use the

untimely disclosed evidence effectively. At the point of the

trial during which the State produced the evidence, the trial

court had already given its jury instructions and the jury had

retired to consider the evidence. I find it unreasonable to

suggest that Lavallee should have asked the trial court to re-

open the evidence at that point for additional cross-examination.

Respondent has not cited any case where a trial court has done so

17 under similar circumstances.

I further find that Lavallee did not waive his Brady claim

by asking the trial court to dismiss the indictments in response

to the State’s untimely disclosure. In denying a defendant’s

request for a new trial, the court in Osorio found it significant

that defense counsel “made no objection, motion for dismissal, or

motion for continuance, either at the time he first became aware

of [the delayed disclosure] or the next day when it was brought

to the court’s attention.”

. Thus, the court

indicated that making a motion to dismiss is one way to preserve

an objection for appeal. And moreover, the New Hampshire Supreme

Court did not find that Lavallee waived his Brady claim when that

court considered his direct appeal. I find, therefore, that

Lavallee adequately preserved his Brady claim by making a motion

to dismiss in the trial court.

IV. Materiality of Suppressed Evidence

Before Lavallee is entitled to any relief under Brady based

on the untimely disclosure of exculpatory evidence, he must

demonstrate that the suppressed evidence was material. To meet

the materiality threshold, Lavallee must show that “there is a

18 reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceeding would have been

different.” Strickler v . Greene,

(quoting United

States v . Bagley,

8 2 ) . In the instant case, the

trial court found that the suppressed evidence was not material

because it was, in that court’s view, largely cumulative of

evidence that was presented to the jury. On direct appeal, the

New Hampshire Supreme Court did not decide the materiality issue

because the court found that the prosecution had no duty to

disclose the evidence.

The DCYF file has not been submitted to this Court for

review. Absent that file, I cannot determine whether Lavallee

meets the Brady materiality standard. And since the trial court

ruled that the suppressed evidence in this case was not material

under Brady, this Court must also determine whether the trial

court’s materiality ruling was “contrary t o , or involved an

unreasonable application o f , clearly established Federal law, as

determined by the Supreme Court of the United States” under

(d)(1). Accordingly, in order to determine whether

Lavallee meets these requirements for obtaining relief, I must

review the DCYF file in light of the entire state court record.

19 Conclusion

Respondent’s motion for summary judgment (document n o . 10)

is denied. The Respondent shall submit to the Court within 30

days any remaining state court records that have not been

previously submitted in these proceedings. A copy of those

records shall be produced to Lavallee’s counsel, who is ordered

to maintain the confidentiality of the DCYF records. The DCYF

records that are submitted to the Court shall be filed under

seal.

SO ORDERED.

James R. Muirhead United States Magistrate Judge Date: January 7 , 2003

cc: Christopher M . Johnson, Esq. Jonathan V . Gallo, Esq.

20