Dereritt v. Warden, NHSP CV-03-535-JD 12/23/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Demeritt

v. Civil No. 03-535-JD Opinion No.

Warden, New Hampshire State Prison

O R D E R

Robert Demeritt seeks habeas corpus relief, pursuant to

, from his conviction on charges of negligent

homicide and reckless conduct and his confinement on consecutive

sentences of three-and-one-half to seven years.1 The charges

against Demeritt arose from an automobile collision that resulted

in the death of the driver of the other car involved. Following

preliminary review, twelve of Demeritt's thirteen claims were

approved for service on the Warden. Both the Warden and Demeritt

move for summary judgment.2

1The court notes that although Robert Demeritt signs his last name as "DeMeritt," he uses both "Demeritt" and "DeMeritt" in his court filings. The state court used "Demeritt." To avoid confusion, this court will also use "Demeritt."

2The Warden failed to file a response to Demeritt's motion. Discussion

The Warden contends that six of the issues raised by

Demeritt have been procedurally defaulted. Demeritt agrees that

two of the issues, whether the trial judge's failure to recuse

herself and whether the presentence investigation report deprived

him of due process, were procedurally defaulted. The court

addresses the remaining claims as follows.

A. Procedural Default

The procedural default doctrine is a corollary of the

exhaustion reguirement, both of which arise from "the general

principle that federal courts will not disturb state court

judgments based on adeguate and independent state law." Dretke

v. Haley, 124 S. C t . 1847, 1852 (2004). Therefore, "[i]n all

cases in which a state prisoner has defaulted his federal claims

in state court pursuant to an independent and adeguate state

procedural rule, federal habeas review of the claims is barred

unless the prisoner can demonstrate cause for the default and

actual prejudice as a result of the alleged violation of federal

law, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice." Coleman v.

Thompson,

(1991). A decision based on a state

2 procedural rule is an independent and adequate state ground for

purposes of the procedural default doctrine "so long as the state

court consistently applies its . . . rule and has not waived it

in the particular case by basing the decision on some other

ground." Horton v. Allen,

(1st Cir. 2004) .

1. Amendment of indictment and consecutive sentences.

The Warden contends that Demeritt procedurally defaulted his

claims that the indictment against him was improperly amended and

that the consecutive sentences were improper. The Warden argues

that procedural default occurred when the New Hampshire Supreme

Court "denied" Demerrit's pro se brief on direct appeal and those

issues were not raised in the appeal filed by his counsel.3 The

only indication of the supreme court's decision is a notation in

the state court docket that the pro se brief was denied. No

reason for the decision is given in the docket, and the decision

itself, if a written decision issued, is not part of the record

here.

"Generally, a federal habeas court defers to a state court's

3Demeritt was represented by counsel who filed a notice of appeal and a brief. Counsel also filed a motion to accept Demeritt's pro se brief. The notation in the court docket is: "Pro se brief denied." No other indication is given as to the court's decision on the issues raised in Demeritt's pro se brief.

3 articulation of a state law ground for a decision." Torres v.

Dubois,

(1st Cir. 1999) . On the other hand, if

the state court decision appears to be based on federal law or to

be interwoven with federal law, the federal court presumes that

no independent and adequate state law ground exists for the

decision. Brewer v. Marshall,

(1st Cir.

1997). When the state court asserts a state law basis for its

decision, the federal habeas court must ascertain whether the

judgment is based on an independent and adequate state ground.

Coleman,

.

Here, because the state supreme court gave no reason for its

decision, no state law ground was articulated as the basis for

the decision. Nor is there a lower state court decision that

articulates a reason for the decision. C f . Gunter v. Mahoney,

, 80 (1st Cir. 2002). The Warden characterizes the

supreme court's denial as a refusal to accept Demeritt's pro se

brief on procedural grounds either because it was filed pro se or

because the claims were not raised in the trial court. The

notation in the docket, however, does not indicate either of

those reasons or any other reason. The New Hampshire Supreme

Court reserves its discretion as to whether to allow a defendant

to proceed pro se on appeal. See State v. Thomas,

(2003). Under these circumstances, where the record lacks

4 any indication that the supreme court's decision was based on an

independent and adequate state law ground, the Warden's argument

for procedural default is not well-supported.

The Warden also contends that these claims were not

exhausted. See, e.g., Asadoorian v. Ficco,

, at

*3-*4 (D. Mass. Aug. 23, 2004). Demeritt presented claims

pertaining to the indictment and the consecutive sentences in his

pro se supplemental brief as part of his direct appeal to the New

Hampshire Supreme Court, referencing both the state and federal

law bases for the claims. See Baldwin v. Reese, 124 S. C t . 1347,

1350-51 (2004) (discussing "fair presentation" requirement of

exhaustion). The New Hampshire Supreme Court then denied the

brief without addressing the claims and without giving reasons

for its decision. In the absence of an explanation to the

contrary, it appears that the supreme court exercised its

discretion not to consider the claims.4 Therefore, these claims

appear to have been fairly presented to the state courts and,

therefore, are exhausted.

41he Warden also argues that Demeritt failed to raise these claims to the trial court but cites Demeritt's objection to the state's motion to substitute and Demeritt's motion to dismiss, which raise the same issues. The trial court denied Demeritt's motion to dismiss in the margin without explanation. Therefore, it appears that these claims were raised before but rejected by the trial court.

5 2. Lost evidence.

Demeritt claimed on appeal to the New Hampshire Supreme

Court that the state lost or destroyed potentially exculpatory

evidence. Demeritt, 148 N.H. at 435. In briefing that issue,

however, Demeritt failed to properly identify what evidence was

lost or destroyed and instead directed the court to 150 pages of

the trial transcript. Id. The court held that "[b]ecause the

defendant's brief does not adeguately identify the evidence he

claims was lost or destroyed, we decline to address the issue."

Id.

In this proceeding, the Warden contends that the claim was

procedurally defaulted when the supreme court did not address the

issue of lost or destroyed evidence on the ground that Demeritt

had not properly presented his claim. Neither the supreme court

nor the Warden cited case law, a court rule, or a statute to

support the court's decision not to address the issue. A review

of New Hampshire Supreme Court precedent demonstrates, however,

that the court consistently declines to address issues that are

not adeguately briefed or presented in the record. See, e.g..

State v. King,

(2004); State v. Blackmer,

(2003); In re Thayer,

(2001).

Because the supreme court declined to address the issue of lost

or destroyed evidence due to Demeritt's failure to properly

6 present the claim, which is a state-law procedural ground

consistently applied by the New Hampshire Supreme Court, the

claim is procedurally defaulted. Demeritt has not suggested that

cause for the default exists or that he suffered actual

prejudice, nor has he demonstrated that failure to consider this

issue will result in a fundamental miscarriage of justice.

3. Excited utterance.

Demeritt challenges the trial court's decision to allow a

statement as an excited utterance that was made by an

unidentified person at the scene of the accident. On appeal, the

New Hampshire Supreme Court ruled that because the defense raised

the federal constitutional issue for the first time on appeal and

did not raise the issue at trial, it would not address the

federal challenge. Demeritt, 148 N.H. at 441-42. "It is a long­

standing rule that parties may not have judicial review of

matters not raised in the forum of trial." Bean v. Red Oak Prop.

Mgmt., Inc.,

(N.H. 2004). Therefore, Demeritt

procedurally defaulted that claim, and it will not be addressed

here.

7 B. Review of the Remaining Claims

The events that led to the charges brought against Demeritt

began on the morning of August 17, 1998, in an incident of

apparent "road rage." Witnesses traveling in a car on Route 152

in Nottingham, New Hampshire, at about 7:45 a.m. were passed by a

Subaru that was traveling at a high rate of speed and was closely

followed by a white van. Demeritt, 148 N.H. at 437. Greg

Scanlon was driving the Subaru, and Robert Demeritt was driving

the van. Id. The witnesses testified that the van appeared to

be chasing the Subaru. Id.

Other witnesses testified that the van was traveling in the

wrong lane on Route 152, forcing oncoming vehicles off of the

road. Id. When Demeritt attempted to steer back into the

appropriate lane, he struck the Subaru, causing it to hit a

telephone pole and a tree. Id. at 437-38. Scanlon, the single

occupant of the Subaru, was killed instantly. Demeritt stopped

the van on the other side of Route 152. Id. at 438.

The chief of police in Nottingham arrived within minutes of

the accident. Id. Demeritt identified himself as the driver of

the van. Id. Someone at the accident scene told the chief that

the van pushed the Subaru off of the road. Id. Demeritt told

the chief that the Subaru was speeding up when he tried to pass

and would then slow down. Id. He said: "'Up here, I bumped it off the road.'" Id. The chief told Demeritt not to say any more

and to stand by his cruiser. When a state trooper arrived at the

scene and tried to talk with Demeritt, he refused to talk to him.

Id.

Demeritt was indicted on charges of manslaughter and

reckless conduct. Id. He was acguitted on the manslaughter

charge, but convicted of the lesser-included offense of negligent

homicide. Id. He was also convicted of reckless conduct. Id.

When the trial judge discovered that juror misconduct had

occurred in the course of the trial, she granted Demeritt's

motion to vacate the convictions. Demeritt was retried on

charges of negligent homicide and reckless conduct and was

convicted on both charges. Id. On appeal, the New Hampshire

Supreme Court affirmed his convictions.

Demeritt then filed for a writ of habeas corpus in this

court. The following claims raised in his petition will be

reviewed here:

1. Whether the indictment used in Demeritt's second trial,

which was altered to charge negligent homicide and reckless

conduct without the charge of negligent homicide having been

submitted to a grand jury, was invalid.

2. Whether Demeritt's consecutive sentences on his

convictions violate the prohibition against double jeopardy. 3. Whether retrial using the original indictment, which

charged manslaughter, violated the prohibition against double

jeopardy.

4. Whether the New Hampshire Supreme Court's decision

affirming as harmless error the trial court's decision to allow

evidence of Demeritt's silence is either contrary to or an

unreasonable application of Chapman v. California,

(1967) .

5. Whether disclosure of Demeritt's prior record violated

his right to a fair trial under Chambers v. Mississippi, 410 U.

2 84 (1983), and Spencer v. Texas,

(1967).

6. Whether the trial court's decision not to admit Greg

Scanlon's prior convictions for reckless driving violated

Demeritt's right to a fair trial under Crane v. Kentucky,

(1986) .

7. Whether the trial court's refusal to give a jury

instruction on the New Hampshire statute prohibiting passing on

the right violated due process.

8. Whether the trial court's decision to exclude Demeritt

female companion from part of the view of the accident scene

violated his Sixth Amendment right to a fair trial.

In a case brought pursuant to § 2254, the federal court

reviews claims that were adjudicated on the merits by the state court under a deferential standard. Allison v. Ficco,

(1st Cir. 2004). Under that standard, "the petitioner

must show that the decision of the state courts was either

'contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of

the United States; or . . . that [the decision] was based on an

unreasonable determination of the facts in light of the evidence

presented in the state court proceeding[s]'"

(guoting §

2254(d)). If, on the other hand, the petitioner raised a federal

claim in state court that was not adjudicated on the merits, the

deferential standard does not apply and, instead, this court

reviews the claim de novo. Horton v. Allen,

(1st

Cir. 2 004).

1. De Novo Review

Because the New Hampshire Supreme Court did not address the

claims raised in Demeritt's pro se brief, those claims were not

adjudicated on the merits. Therefore, Demeritt's claims that the

indictment was invalid and that his consecutive sentences violate

double jeopardy are reviewed de novo.

11 a. Indictment.

Demeritt contends that the indictment used in his second

trial was improperly amended because the court clerk marked out

"manslaughter" and wrote in "negligent homicide" and marked out

"recklessly" and wrote in "negligently." He argues that charging

the lesser included offense of negligent homicide broadened the

grounds by which he could be convicted and, therefore, reguired

indictment by a grand jury. See United States v. Miller,

(1985). He does not claim that he received

insufficient notice of the charge on which he was tried and

convicted. C f ., e.g., Hartman v. Lee,

(4th

Cir. 2002) (petitioner claimed indictment insufficient because it

lacked some elements of the offense charged); Bae v. Peters,

(7th Cir. 1991) (discussing difference between

Fifth and Fourteenth Amendment reguirements).

Although the Fifth Amendment includes a right to have

charges presented to a grand jury in certain criminal cases, that

right has not been construed to apply to the states through the

Fourteenth Amendment. See Apprendi v. New Jersey,

(2000); Hurtado v. California,

(1884);

LanFranco v. Murray,

(2d Cir. 2002); Campiti v.

Matesanz,

(D. Mass. 2002). As Demeritt

points out, the New Hampshire Constitution also protects a

12 defendant from being convicted of a crime that is not charged in

an indictment. See State v. Glanville,

(2002) .

Federal habeas relief pursuant to § 2254, however, is available

only for violations of federal law. § 2254(a); Bae,

. Therefore, Demeritt is not entitled to relief under § 2254

based on his claim that the indictment was invalid because the

state failed to have him indicted on the charge of negligent

homicide.

b. Consecutive sentences.

Demeritt was convicted of negligent homicide and reckless

conduct. He was sentenced to consecutive sentences of three-and-

one-half to seven years. He contends that the consecutive

sentencing effectively punished him twice for the same offense,

in violation of the constitutional protection against double

jeopardy, and was an unconstitutional enhancement of his sentence

in violation of the Sixth Amendment under Apprendi v. New Jersey,

(2000) .

"The Double Jeopardy Clause guarantees that no person shall

'be subject for the same offence to be twice put in jeopardy of

life or limb.'" Gonzalez v. Justices of Mun. Court of Boston,

(1st Cir. 2004) (guoting U.S. Const, amend. V).

The Fifth Amendment prohibition against double jeopardy applies,

13 through the Fourteenth Amendment, to state prosecutions.

Part of the protection is that a defendant may not be sentenced

to multiple punishments for the same offense.

Demeritt contends that his consecutive sentences on his

convictions of negligent homicide and reckless conduct violate

double jeopardy because he is being punished twice for the same

act. He argues that the events on the morning of August 17,

1998, when he was speeding after Greg Scanlon on R t . 152, driving

in the wrong lane into oncoming traffic, and then forcing the

Subaru off the road, were one transaction which would permit only

one punishment. The facts do not support Demeritt's argument.

He was convicted of negligent homicide for forcing Greg

Scanlon off the road, which caused Scanlon's death. See RSA

630:1, I. He was convicted of reckless conduct for crossing a

double yellow line and driving in the wrong lane on R t . 152 into

oncoming traffic, which forced other drivers off the road. See

RSA 631:3, I. Those are two separate offenses, based on

different conduct. Therefore, Demeritt was convicted of and

sentenced for two separate offenses arising from separate acts,

not one transaction as he claims.

Demeritt also argues that because the trial judge decided to

impose his sentences consecutively, rather than concurrently, she

effectively enhanced his sentence without having a jury determine

14 facts to support the enhancement. He contends that such an

"enhancement" violates Apprendi.

In Apprendi, the Supreme Court held that a "fact that

increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a

reasonable doubt."

. Other courts have concluded

that consecutive sentencing does not violate Apprendi as long as

each sentence is not longer than the statutory maximum for that

crime. See e.g.. United States v. Noble,

(7th Cir. 2002); State v. Higgins,

(2003).

Negligent homicide and reckless conduct are both Class B felonies

which, under New Hampshire law, have maximum penalties of seven

years. See RSA 630:3, II; RSA 631:3, II; RSA 651:2, 11(b).

Therefore, the maximum statutory penalty for each crime is seven

years, and Demeritt was not sentenced to more than the statutory

maximum for each crime. Demeritt's consecutive sentences do not

violate the Sixth Amendment restrictions found in Apprendi.

2. Contrary to or an unreasonable application of federal

law .

Demeritt's remaining claims were adjudicated on the merits

in state court. Therefore, those claims are reviewed using the

deferential standard under which this court determines whether

15 the state court's decision on each issue was either contrary to

or an unreasonable application of federal law.5 Allison,

. "A state court's decision is 'contrary to' our

clearly established law 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.'" Mitchell v. Esparza, 124 S. C t .

7, 15-16 (2003) (guoting Williams v. Taylor,

(2000)). "The 'unreasonable application' clause of § 2254(d) (1)

applies when the 'state court identifies the correct governing

legal principle from this Court's decisions but unreasonably

applies that principle to the facts of the prisoner's case.'"

Holland v. Jackson, 124 S. C t . 2736, 2737 (2004) (guoting

Williams,

) . Whether the decision is

unreasonable is "assessed in light of the record the court had

before it."

5 A habeas application may also be premised on a claim that the decision was based on an unreasonable determination of the facts, but that ground is not at issue here. Allison,

.

16 a. Double jeopardy.

Demeritt contends that the prohibition against double

jeopardy was violated when the prosecution retried him using the

same indictment that had been used in his first trial, which

charged him with manslaughter. He argues that because he was

found guilty of negligent homicide rather than manslaughter, the

retrial constituted double jeopardy. The New Hampshire Supreme

Court held that both the federal and state constitutions "have

long been interpreted to allow a second trial when a defendant

procures a reversal of his first conviction." Demeritt,

(citing United States v. Ball,

(1896), and Burks

v. United States,

(1978)).

First, despite Demeritt's attempts to confuse the issues, he

was not retried for manslaughter. He was convicted of negligent

homicide and reckless conduct in the first trial, and then

successfully moved to vacate the convictions after the trial

court discovered juror misconduct. He was retried on charges of

negligent homicide and reckless conduct.

Since Demeritt was not retried for manslaughter, the double

jeopardy issues he raises did not occur in his case. See Price

v. Georgia,

(1970) . As the supreme court held,

his retrial fell within the jurisprudence of Ball and Burks. See

also Sattazahn v. Pennsylvania,

(2003).

17 Therefore, the state court's decision was neither contrary to nor

an unreasonable application of federal law as determined by the

Supreme Court.

b. Harmless error.

On appeal, Demeritt challenged the trial court's ruling that

permitted the prosecution to introduce evidence that he refused

to talk to a state trooper at the accident scene. The New

Hampshire Supreme Court ruled that the Fourteenth Amendment, as

interpreted in Doyle v. Ohio,

(1976),

applied so that evidence of Demeritt's silence was inadmissible

because the police chief told him not to say anything. Demeritt,

. Having found error in the trial court's

decision, the supreme court then considered whether the error was

harmless.6

The supreme court applied the state-law harmless error

standard and considered whether the state had shown, beyond a

reasonable doubt, that the erroneously admitted evidence did not

61he court notes that Demeritt was not under arrest nor had he been warned under the reguirements of Miranda v. Arizona,

(1966), when he refused to talk to the trooper. Instead, the chief of police told Demeritt not to say anything. Therefore, his refusal to talk to the trooper was in the context of the chief's prior instruction, and these circumstances certainly mitigated any error in allowing the evidence.

18 affect the verdict.

After reviewing the evidence, the

supreme court concluded that "[a]longside this abundance of

direct evidence demonstrating reckless and negligent driving, the

testimony of the defendant's silence introduced by the State was

relatively unimportant," and held that the error was harmless

beyond a reasonable doubt

.

Demeritt contends that the supreme court's harmless error

analysis was contrary to and an unreasonable application of the

federal harmless error standard in Chapman v. California,

(1967). The Chapman standard applies on direct appeal to

determine whether a preserved constitutional error was harmless.

Sanna v. DiPaolo,

(1st Cir. 2001) . On collateral

review, however, "a federal habeas court is bound to uphold a

state court judgment, notwithstanding trial-type federal

constitutional error, so long as that error did not have a

'substantial and injurious effect or influence in determining the

jury's verdict.'"7 Fryar v. Bissonette,

(1st

7A trial error--unlike a structural defect in the prosecution such as total deprivation of the right to trial counsel--occurs during the presentation of evidence to the jury and therefore may be "guantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." United States v. Downs-Moses,

(1st Cir. 2003) (guoting Arizona v. Fulminante,

(1991)).

19 Cir. 2003) (quoting Brecht v. Abrahamson,

(1993)).

Assuming that the supreme court was correct that admitting

the testimonial evidence of Demeritt's silence was a violation of

the Fourteenth Amendment under Doyle, in the context of this

case, any such error was harmless. Demeritt was convicted of

negligent homicide and reckless conduct. To find him guilty of

negligent homicide, the jury had to find, beyond a reasonable

doubt, that he negligently caused Greg Scanlon's death by failing

to be aware of a substantial and unjustifiable risk that his

conduct might cause Scanlon's death. See State v. Liakos,

(1998). To find Demeritt guilty of reckless

conduct, the jury had to find, beyond a reasonable doubt, that he

was aware of and disregarded a substantial and unjustifiable risk

that serious bodily injury would result when he crossed the

double yellow line and drove on the wrong side of the road into

oncoming traffic. See State v. Hull,

(2003).

Demeritt did not dispute that he tried to pass Scanlon by

crossing the double yellow line and driving on the wrong side of

the road alongside of Scanlon and into oncoming traffic.

Demeritt,

. He also did not dispute that he came

into contact with Scanlon's car when he tried to move back into

that lane.

He admitted to the police chief that he "bumped"

20 Scanlon's car off of the road.

Witnesses testified at trial

that Demeritt was traveling at high speed in the wrong lane when

the accident happened.

Nevertheless, Demeritt argues that evidence of his silence

undermined his credibility as to his testimony about events

leading up to the accident. He does not explain the significance

of those events in light of the evidence of the circumstances of

the accident. The court agrees that given "the abundance of

direct evidence demonstrating reckless and negligent driving, the

testimony of [Demeritt's] silence introduced by the State was

relatively unimportant."

Therefore, if an error occurred,

admission of the evidence of Demeritt's silence "did not have a

substantial and injurious effect or influence in determining the

jury's verdict." Fryar,

(internal guotation

marks omitted).

c. Admission of Demeritt's prior convictions.

Demeritt was convicted on three charges of felonious sexual

assault in 1988. He was released in 1992 after serving his

sentence. The trial court ruled that the prosecution could

introduce evidence of Demeritt's convictions for impeachment

purposes but only as felony assaults, omitting any referenceto

the sexual nature of the crimes. The New Hampshire SupremeCourt

21 held that admission of the convictions was permissible under New

Hampshire Rule of Evidence 609(b) and affirmed the trial court's

discretionary decision to admit that evidence. Demeritt,

.

For purposes of habeas review, Demeritt argues that

admission of his prior convictions violated his right to a fair

trial. He represents that the convictions were for non-violent

statutory sexual assault and, therefore, that the convictions had

no probative value because they do not pertain to his credibility

or driving. He also contends that their admission was unfairly

prejudicial because felony assault suggests violence.

The Supreme Court has held that a defendant who testifies on

his own behalf may be impeached by proof of prior convictions

without offending due process. Ohio Adult Parole Auth. v.

Woodard,

(1998) (citing Spencer,

61)); see also Marshall v. Lonberger,

, 438 n.6

(1983); Leno v. Gaughan,

(1st Cir. 1981).

Because the defense asked the trial court to describe the prior

offenses as felony assaults rather than felonious sexual assault,

Demeritt cannot now claim that the reguested designation violated

due process. Further, as the supreme court noted, defense

counsel brought out the information at trial that the prior

convictions did not involve driving. Therefore, the supreme

22 court's decision upholding the trial court's evidentiary ruling

is not contrary to federal law.

d. Failure to allow evidence of Scanlon's prior

convictions.

At trial, defense counsel sought to introduce evidence,

during cross examination of Scanlon's wife, of his prior

convictions for reckless driving and disobeying a police officer,

two speeding tickets, and his certification as a habitual

offender. The trial court denied the reguest. On appeal, the

supreme court ruled that the evidence was properly excluded under

New Hampshire Rules of Evidence 404(a) and (b) .

Demeritt argues that the trial court's ruling deprived him

of a fair opportunity to present a defense. See Crane v.

Kentucky,

(1986). Demeritt's theory was

that Scanlon was the aggressor in the events that led to the

accident and that his "reckless character" was an essential

element of that defense. The supreme court held, however, that

under state law, a victim's aggressive character was not an

element of a claim of self defense. Demeritt,

.

Therefore, since the evidence of Scanlon's prior driving record

was not an element of Demeritt's self defense claim, the

exclusion of the evidence of Scanlon's record did not deprive him

23 of an opportunity to present his defense.

e. Failure to give jury instruction.

Demeritt contends that the trial court's failure to give

his requested instruction on the New Hampshire statute pertaining

to passing on the right, RSA 265:19, violated due process. He

argues that the statute was pertinent to his defense that Scanlon

caused the accident by overtaking him on the right. The supreme

court reviewed the claim under state law without addressing the

federal due process issue.

Although criminal defendants have a constitutional right to

have a meaningful opportunity to present a complete defense, that

right does not require that a defendant's requested instructions

be given to the jury. See Gilmore v. Taylor,

, 342-

43 (1993). Further, as the New Hampshire Supreme Court noted,

Demeritt's "own testimony established that the accident occurred

when the defendant tried to pass Scanlon on the left. Without

evidence that Scanlon attempted to pass [Demeritt] on the right,

we do not see any grounds for reading RSA 265:19 to the jury."

8Further, even if the exclusion of Scanlon's record had been constitutionally erroneous, any error was harmless. Demeritt does not contest that he "bumped" Scanlon's car off the road rather than slowing or otherwise avoiding his car. Therefore, the absence of Scanlon's driving record "did not have a substantial and injurious effect or influence in determining the jury's verdict." Fryar,

.

24 Demeritt,

. As due process would not require the

jury instruction Demeritt requested, no due process violation

occurred. The supreme court's decision is not contrary to

federal law.

f. Exclusion of female companion.

A friend of Demeritt's attended the jury's view of the

accident scene. After the friend did not heed the judqe's

instructions to stand back and not to let the jury overhear her

conversation with Demeritt, the judqe told the friend to sit in

her car until the view was completed. Demeritt contends that the

exclusion of his friend from the second part of the view violated

his riqht to have a public trial. The New Hampshire Supreme

Court found no merit in the arqument.

Demeritt cites Waller v. Georgia,

(1984), in

support of his claim to a right to have the view open to the

public. In Waller, the Supreme Court held that a criminal

defendant's Sixth Amendment right to a public trial extended to a

pretrial suppression hearing.

. This court has not

found, and Demeritt has not cited, any Supreme Court case

applying the same requirement to a view of the scene in the

course of a criminal trial.

Demeritt's claim is not the same as the suppression hearing

issue decided in Waller, where the court discussed all of the

25 reasons the public trial rule would apply to a suppression

hearing. The New Hampshire Supreme Court found that even if the

rule in Waller were to apply in the context of a view, the

partial exclusion of Demeritt's friend was not tantamount to

closing the view to the public. That determination is neither

contrary to nor an unreasonable application of Waller.

Furthermore, a trial judge has a duty to see that the jury does

not overhear comments of bystanders concerning a case. After due

warning, the trial judge had the authority to remove Demeritt's

friend from the scene to protect the integrity of the jury

without violating Demeritt's right to a public trial.

Conclusion

For the foregoing reasons, the warden's motion for summary

judgment (document no. 14) is granted. The petitioner's motion

for summary judgment (document no. 17) is denied. The

petitioner's reguest for a writ of habeas corpus is denied.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. United States District Judge

December 23, 2004 cc: Robert DeMeritt Sr., pro se Nicholas P. Cort, Esguire

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