Roy v. Coplan, NHSP CV-03-206-JD 03/25/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Steven J. Roy

v. Civil No. 03-206-JD Opinion No.

Jane Coplan, Warden, New Hampshire State Prison

O R D E R

Steven J. Roy, proceeding pro se, seeks relief pursuant to

from his state conviction and sentence for first

degree murder. Both Roy and the Warden have moved for summary

judgment. Their motions are resolved as follows.

Background

Pertinent background information is taken primarily from the

decisions of the New Hampshire Supreme Court in Roy's direct

appeal from his conviction. State v. Roy,

(1995),

cert, denied, 123 S. C t . 2094 (2003), and his appeal from the

denial of his motion for a new trial. State v. Roy,

(2002), cert, denied, 123 S. C t . 2094 (2003). The factual

findings reported in those decisions are presumed to be correct,

and Roy has not demonstrated otherwise.

(e).

Some additional factual detail is taken from record materials in

this case. Steven Roy operated a business. Wizard Software, out of the

basement of his home in Fremont, New Hampshire. In 1992, Joanna

Kozak worked for the business and lived in Roy's home. Maria

Zarate, the mother of Roy's children, also lived in the house

with Roy and Kozak and the children. Animosity developed between

Zarate and Kozak. Charles Kelley, known as C.J. Kelley, was

another Wizard employee, hired by Roy to do odd jobs.

On June 27, 1992, Roy and Kozak left the house to go for a

dirt bike ride. Kozak never returned from the ride. Roy told

Zarate that Kozak had packed her belongings and left because she

was a fugitive from justice. However, later Roy told Zarate that

he bludgeoned Kozak to death on the day they went for the dirt

bike ride and that he had buried her in an isolated cemetery and

disposed of her belongings with the help of C.J. Kelley.

Zarate decided to leave Roy in October of 1992. While

waiting at the Manchester Airport, she anonymously called the

Epping Police Department to report that a crime had been

committed at the Scribner Cemetery in Raymond, New Hampshire.

Zarate was interviewed by the FBI in November, and Kozak's body

was discovered at the Scribner Cemetery on December 10, 1992, by

the New Hampshire State Police. On March 16, 1993, C.J. Kelley

gave a statement to the state police in which he stated that Roy

killed Kozak and that he, Kelley, had helped bury the body.

2 Kelley was indicted for his role in assisting to conceal the

murder.

Roy was arrested on April 12, 1993, and charged with first

degree murder in Kozak's death. The trial began on October 26,

1993. Maria Zarate was the state's lead witness. The defense

hoped to call C.J. Kelley as a witness, but he asserted his Fifth

Amendment privilege and refused to testify. The state refused to

grant Kelley immunity for his testimony, and the court denied the

defense motion to reguire the state to reguest use immunity for

Kelley's testimony. The state then moved to exclude Kelley's

statement to investigators, which was granted.

The issue of C.J. Kelley's involvement in the crime was

nevertheless part of the trial. The defense theory, raised in

defense counsel's opening statement, was that Kelley and Zarate

killed Kozak and implicated Roy. During cross-examination of New

Hampshire State Police Detective David Kelley, defense counsel

elicited testimony that the detective had interviewed C.J. Kelley

for more than four hours, and on re-direct the state confirmed

that Kelley had been indicted for his part in the murder. The

prosecutor then asked if Kelley had admitted that he helped to

bury Kozak's body. Defense counsel objected to the guestion and

moved for a mistrial. After a hearing on the motion for a

mistrial, the court denied the motion, gave a curative

3 instruction to the jury, and resumed the trial.

The jury found Roy guilty of first degree murder. On

appeal, Roy contended that his conviction should be reversed

because the trial court failed to compel the state to reguest use

immunity for C.J. Kelley and failed to grant a mistrial after the

state asked Detective Kelley about C.J. Kelley's inadmissible

statement. Roy's conviction was affirmed on December 6, 1995.

In April of 1996, Roy moved for a new trial on the ground

that "his counsel's references to [C.J. Kelley's] inadmissible

statements improperly waived his constitutional right to

confrontation." Roy,

. After the proceedings

were delayed for five years while efforts were made to resolve

issues of attorney client privilege and waiver, the trial court

ruled that "(1) the defendant's constitutional right to

confrontation was not waived by counsel's conduct; and (2)

counsel's trial strategy was reasonable."

The New Hampshire

Supreme Court affirmed that decision on December 16, 2002.

Standard of Review

A federal court may not grant a habeas petition "with

respect to any claim that was adjudicated on the merits in State

court proceedings" unless the state court decision "was contrary

to, or involved an unreasonable application of, clearly

4 established Federal law, as determined by the Supreme Court of

the United States" or "was based on an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding."1

(d); see also Price v.

Vincent, 123 S. C t . 1848, 1852 (2003). That standard, however,

applies only to claims adjudicated on the merits; not to claims

that were raised in state court proceedings but never addressed.

See Norton v. Spencer,

(1st Cir. 2003). If a claim

was properly raised but not adjudicated on the merits in the

state court proceedings, this court reviews the claim under a de

novo standard.

Adjudication on the merits does not mean that the state

court necessarily decided the claim under federal law, and a

state court's decision is not "contrary to" federal law due to a

1The Warden's motion and memorandum, filed on her behalf by Assistant Attorney General Nicholas Cort, is unhelpful in resolving the issues raised in this habeas proceeding. Cort states that review is "principally governed by

(d)(1) (2000)," without further explanation, and then cites decisions from state courts and other circuits when the standard reguires Supreme Court precedent. Cort also provides little analysis of three of the four issues raised. As this court previously stated in Merritt v. Warden,

, at *6 n.2 (March 11, 2004), a habeas case in which Cort also represented the Warden: "The court expects attorneys appearing before it to be thoroughly familiar with the law relating to the subject matter in controversy and to present well considered motions and memoranda. Anything short of this does little to advance the resolution of a case."

5 lack of citation to any federal precedent. Early v. Packer,

(2002). " [A] state court need not even be aware of

[Supreme Court] precedents, so long as neither the reasoning nor

the result of the state-court decision contradicts them."

Mitchell v. Esparza, 124 S. C t . 7, 10 (2003) (internal guotation

marks omitted). A state court's decision is "contrary to"

clearly established Supreme Court precedent if it "'applies a

rule that contradicts the governing law set forth in our cases'

or if it '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.'"

(guoting

Williams v. Taylor,

(2000)) (citing Price,

123 S. C t . at 1853). A state court decision is an unreasonable

application of federal law if it is "shown to be not only

erroneous, but objectively unreasonable." Yarborough v. Gentry,

124 S. C t . 1, 4 (2003) .

Discussion

Roy raises four claims in support of his petition for habeas

relief: (1) denial of the right to confrontation, arising from

references to the statement of a non-testifying witness, C.J.

Kelley, (2) ineffective assistance of trial counsel, (3) denial

of due process arising from the New Hampshire Supreme Court

6 decisions, and (4) denial of due process based on the trial

court's jury instruction regarding references to C.J. Kelley's

statement. The first two claims were addressed by the state

courts in ruling on Roy's motion for a new trial. The third and

fourth claims, however, were raised on appeal from the denial of

Roy's motion for a new trial but were not addressed in the New

Hampshire Supreme Court's decision.

A. Denial of the Right to Confrontation

Roy contends that his Sixth Amendment right to confront

witnesses against him was denied when his own counsel and the

prosecutor referred to C.J. Kelley's statement, which implicated

Roy in Kozak's murder, and Kelley was not available for cross-

examination. Roy refers to this violation as a "Bruton-type"

error, casting C.J. Kelley as his "codefendant." The New

Hampshire Supreme Court found no error.

In Bruton v. United States,

(1968), the Supreme

Court held that a defendant may be deprived of his Sixth

Amendment Confrontation Clause rights when the government

introduces the confession of a non-testifying co-defendant in a

joint trial.2 United States v. Lopez-Lopez,

(1st

2"Bruton involved two defendants accused of participating in the same crime and tried jointly before the same jury. One of

7 Cir. 2002). The Supreme Court has also held that "the admission

of a nontestifying accomplice's confession, which shifted

responsibility and implicated the defendant as the triggerman,

'plainly denied [the defendant] the right of cross-examination

secured by the Confrontation Clause.'" Lilly v. Virginia,

(1999) (guoting Douglas v. Alabama,

(1965)); see also Crawford v. Washington,

(U.S. Mar. 8, 2004). To implicate a defendant's rights under

the Confrontation Clause, an accomplice's confession, which is

used at trial, must be directly and powerfully incriminating.

Gray, 523 U.S. at 190-92 (discussing Bruton and Richardson v.

Marsh,

(1987)); Frazier v. Cupp,

, 734-

35 (1969) (mere inferences from prosecutor's opening statement

about expected testimony and witness's invocation of Fifth

Amendment privilege not Confrontation Clause violation with

limiting instruction); see also Lopez-Lopez,

;

Brown v. Maloney,

(1st Cir. 2001) .

The New Hampshire Supreme Court held that defense counsel's

the defendants had confessed. His confession named and incriminated the other defendant. The trial judge issued a limiting instruction, telling the jury that it should consider the confession as evidence only against the codefendant who had confessed and not against the defendant named in the confession. Bruton held that, despite the limiting instruction, the Constitution forbids the use of such a confession in the joint trial." Gray v. Maryland,

(1998). references to C.J. Kelley's statement during Roy's trial were not

Bruton errors because counsel did not disclose any part of the

statement to the jury. See Roy,

. In the absence

of any disclosure of the statement, the court concluded that

counsel's references were not "the sort of powerfully

incriminating evidence at issue in Bruton."

Roy candidly

acknowledges that he found no Supreme Court cases addressing a

Bruton violation arising from defense counsel's references to an

accomplice's confession, and this court has found none. In

addition, as the New Hampshire Supreme Court ruled, while Bruton

and its progeny pertain to the damaging effects of a powerfully

incriminating statement that is not subject to cross-examination,

no Supreme Court case has held that mere references to an

accomplice's statement or confession raise the same

constitutional concerns. Therefore, the New Hampshire Supreme

Court's decision that defense counsel's references to C.J.

Kelley's statement did not cause a Bruton error is neither

contrary to nor an unreasonable application of Supreme Court

precedent.3

3Roy contends that he did not waive his Sixth Amendment rights at trial because he did not expressly authorize his counsel's trial strategy. The state courts did not resolve the waiver issue because of attorney-client privilege problems. Therefore, this court does not consider whether defense counsel can violate the Confrontation Clause rights of his or her own The New Hampshire Supreme Court did not address the

Confrontation Clause issue raised here that the prosecutor's

question on re-direct examination of Detective Kelley about C.J.

Kelley's statement also was a Bruton error. In its decision on

the direct appeal, the supreme court considered the prosecutor's

question only in the context of whether the trial court erred in

failinq to qrant the defense motion for a mistrial.4 Because the

issue was raised but was not addressed by the New Hampshire

Supreme Court on appeal from the denial of Roy's motion for a new

trial, for purposes of habeas review, this court will address the

issue under a de novo standard. See Norton,

.

The challenqed part of the prosecutor's examination of

Detective Kelley on re-direct proceeded as follows:

client throuqh trial strateqy decisions. C f . United States v. Plitman,

(2d Cir. 1999) (discussinq counsel's waiver of client's Sixth Amendment riqht).

4Based on the supreme court's decision in Roy's direct appeal, in which he both appeared pro se and was represented by appointed counsel, it does not appear that he raised a Confrontation Clause issue. Instead, and to the contrary, Roy arqued that the trial court's failure to require the state to qrant C.J. Kelley use immunity for testimony at his trial violated his due process riqhts. The Confrontation Clause issue appears to have been raised for the first time in Roy's motion for a new trial, and the trial court concluded that no Bruton error occurred. Althouqh Roy appealed that issue, the supreme court did not address it.

10 Q. Mr. Kelley, C.J. Kelley's been indicted for helping Steven Roy bury the body of Joanna Kozak, hasn't he?

A. Yes he has.

Q. And he admitted to you that he helped bury the body, came to the cemet[e]ry and helped bury the body during that interview?

Roy,

. After the second guestion, defense counsel

objected and moved for a mistrial before Detective Kelley

answered. The trial court instructed the jury to disregard the

last guestion completely and adjourned the trial for the day.

After denying the motion for a mistrial, the court resumed the

trial and gave a lengthy curative instruction to the jury.

Although Detective Kelley did not answer the last guestion,

Roy argues that it was asked in such as way as to state C.J.

Kelley's admission without needing an answer. Even if that were

true, such a disclosure would be insufficient to violate the

Confrontation Clause under the Bruton rule. As presented in the

guestion, the admission would be that C.J. Kelley helped bury

Kozak's body. There is no mention of anything that inculpates

Roy. As such, the admission "neither name[s] nor impugn[s] [the

defendant] directly, and thus cannot be supposed to have

implanted in the jurors' minds the kinds of powerfully

incriminating impressions against which Bruton protects." United

States v. Sotomayor-Vazguez,

(1st Cir. 2001)

11 (internal quotation marks omitted). In addition, without a

Bruton error, the jury is presumed to follow the court's curative

instruction to disregard the improper question. See Richardson,

. Therefore, the prosecutor's improper

question about C.J. Kelley's admission did not violate Roy's

Confrontation Clause rights.

B. Ineffective Assistance of Counsel

Roy was represented by Barbara Keshen, Esquire, and James

Moir, Esquire, through his trial. He contends that Keshen and

Moir were ineffective in their representation of him because

Keshen disclosed C.J. Kelley's accusation of him in her opening

statement and again raised C.J. Kelley's accusation during her

cross-examination of Detective Kelley. Specifically, Roy argues

that Keshen's opening statement informed the jury that C.J.

Kelley had accused Roy of murdering Kozak, which corroborated the

testimony of the state's key witness, Maria Zarate.

Roy contends that Keshen's cross-examination of Detective

Kelley reinforced that disclosure when she demonstrated, using an

easel, that Roy was arrested after police interviewed C.J.

Kelley. Keshen's use of C.J. Kelley's statement to police, Roy

asserts, left him subject to accusations by both Kelley and

12 Zarate, without the opportunity to have Kelley's statement tested

by cross-examination. Instead, Roy asserts, his counsel should

have discredited Zarate and presented the theory of a conspiracy

between C.J. Kelley and Zarate without implicating him. He

contends that the incriminating implication from references to

C.J. Kelley helped the prosecution prove its case. As such, Roy

argues that Keshen's strategy choice was unreasonable and

prejudiced his defense.

"To successfully claim ineffective assistance of counsel

under the Sixth Amendment, a defendant must establish that his

counsel's performance fell below an objective standard of

reasonableness and 'that there was a reasonable probability that,

but for counsel's unprofessional errors, the results of the

proceeding would have been different.'" United States v.

Theodore,

(1st Cir. 2003) (guoting and citing

Strickland v. Washington,

(1984)). Habeas

review of counsel's performance "'must be highly deferential,'"

based on the circumstances when the tactical choices were made,

not on hindsight. Ouber v. Guarino,

(1st Cir.

2002) (guoting Strickland,

). Counsel's tactical

choices are constitutionally deficient only if "the net reckoning

is patently unreasonable." Epsom v. Hall,

(1st

Cir. 2003). Stated in other terms, because "counsel is strongly

13 presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional

judgment,' counsel's 'strategic choices made after thorough

investigation of law and facts relevant to plausible options are

virtually unchallengeable.'" Phoenix v. Matesanz,

(1st Cir. 2000) (quoting Strickland,

).

The New Hampshire Supreme Court articulated the applicable

standard, taken from state law, as follows: "To successfully

assert a claim for ineffective assistance of counsel, a defendant

must first show that counsel's representation was

constitutionally deficient and, second, that counsel's deficient

performance actually prejudiced the outcome of the case." Roy,

. The court recognized the broad discretion

afforded to trial counsel in determining trial strategy and a

"presumption that counsel's trial strategy was reasonably

adopted."

(internal quotation marks omitted). The court

concluded that Roy had not demonstrated that his counsel's

performance was deficient and therefore did not address the

prejudice part of the analysis.

The trial court, affirmed by the New Hampshire Supreme

Court, found that the " [d]efendant's trial attorney in her

opening remarks suggested that the evidence would show that both

the State's chief witness, Maria Zarate, and C.J. Kelley had the

14 motive and opportunity to kill the victim."5 State v. Roy, 93-S-

794, at *7 (N.H. Sup. C t . May 7th, 2001). The defense theory was

that Kelley and Zarate murdered Kozak and conspired to blame the

crime on Roy, and "[cjounsel's references to C.J. Kelley's

involvement were made to establish the conspiracy theory link

between him and Zarate." Roy,

. The trial court

ruled: "Given the nature of the State's evidence, that strategy

was not only sound but perhaps the only viable one available to

the defense." Roy, 93-S-740 at *7-8. The supreme court held

that Roy had not offered "any alternatives that render counsel's

choice of strategy unreasonable." Roy,

.

Contrary to Roy's characterization of counsel's references

to C.J. Kelley, she did not concede any aspect of the state's

case and instead attempted to use Kelley's statement in Roy's

favor. C f . Scarpa v. Dubois,

(1st Cir. 1994).

As the state courts found, counsel attempted to use damaging

evidence to support the defense. As the New Hampshire Supreme

Court properly concluded, to be constitutionally deficient, the

choice of strategy must be "unreasonable" and Roy did not show

that it was. Therefore, the supreme court's decision is neither

contrary to nor an unreasonable application of Supreme Court

precedent.

5The trial transcript also confirms the court's summary of Roy's trial counsel's opening.

15 C. Denial of Due Process Arising from the Introduction of C.J.

_____ Kelley's Statement

Roy contends that the New Hampshire Supreme Court decisions

violated due process.6 Roy now claims that the New Hampshire

Supreme Court violated due process by twice upholding his

conviction based on reasoning that was contrary to clearly

established law interpreting the Confrontation Clause. Roy's

argument appears to be that because, as he contends, the

references made by the prosecutor and his own counsel to C.J.

Kelley violated his Confrontation Clause rights, the supreme

court's decisions finding no Confrontation Clause violation

violated his right to due process. If that is his claim, Roy

does not state a basis for habeas relief.

Pursuant to § 2254, a writ of habeas corpus may be

considered "only on the ground that [the applicant] is in custody

in violation of the Constitution or laws or treaties of the

United States." § 2254(a). When a conviction is challenged

based on the legal grounds for the state court's decision, a writ

^Although Roy raised a due process issue in his notice of appeal from the denial of his motion for a new trial, asserting that the trial court's decision denied him due process and a fair trial, the New Hampshire Supreme Court did not address that issue. The issue Roy raises here is different. To the extent the claim raised for purposes of habeas relief in this court was not exhausted in the state court proceedings, the court will nevertheless address the claim pursuant to § 2254(b) (2) .

16 will not be granted unless the state court's adjudication of the

claim "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." §

2254(d)(1). Therefore, § 2254 does not permit relief based on a

claim that the state court's misapplication of federal law

amounted to a violation of due process.

As is discussed above, Roy has not demonstrated that he is

entitled to relief based on the asserted violations of the

Confrontation Clause. To the extent he intended to argue that

the references to C.J. Kelley's statement were also a violation

of due process, he has not shown that clearly established federal

law exists to support such a claim. Although Justice Harlan

indicated that due process, rather than the Confrontation Clause,

might protect a defendant from the use at trial of an

accomplice's confession, see Dutton v. Evans,

(1970) (Harlan, J. concurring), that minority view has never

become part of established Supreme Court jurisprudence, see

Crawford,

. See also Depree v. Thomas,

(11th Cir. 1991); Thompson v. Lynaugh,

(5th Cir. 1987); United States v. Dailey,

, 196-

97 (1st Cir. 1985).

17 D. Denial of Due Process Based on the Trial Court's Jury

_____ Instruction Regarding C.J. Kelley's Statement

In his last claim, Roy challenges the trial court's jury

instruction that was given following the prosecutor's unanswered

guestion to Detective Kelley about C.J. Kelley's admission. Roy

contends that the instruction violated due process by reinforcing

the previous Bruton errors, by introducing inferences based on

C.J. Kelley's claim of privilege, and by providing the jury with

too much information about C.J. Kelley's guilt. Because the New

Hampshire Supreme Court did not address this issue, it is

reviewed de novo.

The prosecutor asked Detective Kelley whether C.J. Kelley

had admitted, during an interview, that he helped bury Kozak's

body. Defense counsel objected immediately, and the guestion was

not answered. The trial judge instructed the jury to disregard

the guestion, reminding them that the guestion had not been

answered, and adjourned the trial.

When the trial resumed several days later, the judge gave a

lengthy instruction on the unanswered guestion. He reminded the

jury that the unanswered guestion "made some reference to a

statement allegedly made by C.J. Kelley." Petitioner's "Response

to Court's 6/24/2003 Order," excerpt of 1995 state brief (guoting

transcript of instruction) at 14. The judge informed the jury

18 that because the question was legally improper, the jury was not

to speculate as to the answer. He stated that Kelley was not

going to testify because he had been charged with certain crimes

relating to Kozak's murder and had elected to assert his Fifth

Amendment privilege not to testify. Because Kelley would not

testify, the judge explained, it would be unfair for the jury to

consider any statement Kelley might have made to the police, and

he again instructed them to disregard the last question asked by

the prosecutor.

As is discussed above, to implicate a defendant's rights

under the Confrontation Clause, an accomplice's confession, which

is used at trial, must be directly and powerfully incriminating.

Gray,

(discussing Bruton and Richardson); see

also Lopez-Lopez,

; Brown,

.

Considering defense counsel's challenged remarks and the

prosecutor's question under that standard for purposes of de novo

review, no "Bruton-type" violation occurred in this case. C.J.

Kelley's admission was not used at trial. To the extent any

inferences might have been drawn from the statements made about

C.J. Kelley's admissions, any such inferences were not

sufficiently incriminating of Roy to raise a Confrontation Clause

issue. The court's instruction could not reinforce violations

that did not occur.

19 When a witness takes the stand in a criminal trial but

invokes his Fifth Amendment privilege, inferences against the

defendant from the witness's refusal to answer may violate the

Confrontation Clause.7 Douglas,

; cf Frazier,

; see also Namet, 373 U.S. at 185-86 (considering

whether evidentiary error occurred but not considering

constitutional issue). C.J. Kelley did not testify in this case.

The court explained that he was not testifying because of the

privilege and cautioned the jury not to consider any part of the

improper guestion referring to Kelley's admission.

Generally, courts presume that jurors follow their

instructions. See, e.g., Richardson,

. Nothing

in the circumstances of this case suggests that the jury did not

follow the clear and explicit instruction given by the trial

court. Therefore, no due process or Confrontation Clause

violation occurred based on the jury instruction.

7Some courts have referred to a due process violation in the context of prosecutorial misconduct in using a witness, who invokes the privilege, to bolster the government's case by negative inferences against the defendant. See, e.g., Perez v. Jones,

(2d Cir 1991); United States v. Vandetti,

(6th Cir. 1980); Person v. Meachum,

(D. Conn. 1991). Other courts focus on the Confrontation Clause. See, e.g., Harmon v. McVicar,

(7th Cir. 1996); United States v. Espinosa,

(10th Cir. 1985); see also Namet v. United States,

(1963) (discussing two theories).

20 Conclusion

For the foregoing reasons, the plaintiff's motion for

summary judgment (document no. 35) is denied. The petition for a

writ of habeas corpus is denied for the reasons stated in this

order. The respondent's motion for summary judgment (document

no. 28) is terminated without ruling.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

March 25, 2004

cc: Nicholas P. Cort, Esguire Steven J. Roy, pro se Peter Heed, Attorney General

21