Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 1 of 20

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

James Wellington, Petitioner

v. Civil No. 04-cv-478-SM Opinion No.

Larry Blaisdell, Acting Warden, Northern New Hampshire Correctional Facility, Respondent

O R D E R

James Wellington, an inmate at the Northern New Hampshire

Correctional Facility, petitions for a writ of habeas corpus.

. He argues that his state incarceration is

unconstitutional because his convictions - for aggravated

felonious sexual assault, aggravated sexual assault, and indecent

exposure and lewdness - resulted from the trial court's decision

to deny him funds to secure the services of an expert witness in

the field of child witness interviewing. Before the court is

respondent's motion for summary judgment. Petitioner objects.

For the reasons given, respondent's motion for summary judgment

is granted. Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 2 of 20

The Legal Standard

Passage of the Anti-Terrorism and Effective Death Penalty

Act of 1996 ("AEDPA"),

(d), has significantly

limited the power of the federal courts to grant habeas corpus

relief to state prisoners. A federal court may disturb a state

conviction only when: (1) the state court adjudication "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)(2); or (2) the state court's

resolution of the issues before it "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,"

(d)(1); see also

Williams v. Taylor,

(2000).

The distinction between decisions that are "contrary to"

clearly established federal law and those involving an

"unreasonable application" of federal law has been explained by

the United States Supreme Court:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme]

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Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams,

.

"AEDPA's strict standard of review only applies to a ■'claim

that was adjudicated on the merits in state court proceedings.'"

Norton v. Spencer,

(1st Cir. 2003) (quoting Fortini

v. Murphy.

(1st Cir. 2001); citing Ellsworth v.

Warden,

(1st Cir. 2003)). Here, all agree that the

strict standard of review applies, as petitioner's claim was

adjudicated on the merits in the New Hampshire state courts.

Background

On September 19, 2001, Victoria C. told her mother that

James Wellington was a "bad man."1 The following day, Victoria

1 At that time, Victoria had spent significant amounts of time alone with Wellington, on approximately seven different days, at a local lake, at Wellington's apartment, and at the apartment where Victoria lived with her mother.

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elaborated, telling her mother that Wellington "had tried to put

his penis - and she reached towards her groin area - and that he

indicated she was too small and then he used his fingers and his

tongue down there." (Trial Tr. II at 41.) The events to which

Victoria referred took place between approximately August 20 and

September 11. As a result of Victoria's report, her mother

called the police.

On September 20, 2001, the same day that Victoria told her

mother about Wellington's behavior. Sergeant Norman Ashburn of

the Franklin Police Department spoke with Victoria's mother, and

spoke with Victoria alone, in their home. He listened to

Victoria's descriptions of Wellington's actions, but asked few

questions. Later, Detective Nancy Hicks met with Victoria at the

police station. Victoria told Detective Hicks what had happened

and also gave a written statement. In addition to her

conversations with Officer Ashburn and Detective Hicks, Victoria

told her story to a nurse at Franklin Hospital and had a second

examination at Concord Hospital.

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On September 24, Anne Pennock of the Division of Children,

Youth, and Families met with Detectives Hicks and Clough at the

Franklin police station, where Pennock and Detective Hicks

subsequently conducted an interview with Victoria that was

recorded on both audiotape and videotape. At the outset of the

interview, Victoria was eating a brownie she was given by either

Pennock or Detective Hicks, and at several points, Victoria asked

to play a game of hangman with Pennock. In response, Pennock

told Victoria that they could play the game after the interview

was completed. That interview included the following questions

and answers:

VC: He got undressed too and showed me.

Anne: And showed you?

VC: Uh huh.

Anne: How'd he do that?

VC: Well he showed me ways on how to make a baby and on how to

Anne: Would it be easier if you pointed to the picture ?

VC: Yes.

Anne: Okay.

5 Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 6 of 20

VC: Is there a girl in there? He tried um (circled vagina and drew a line between f & m figures)

Hicks: What did he try to do with his penis in your vagina?

VC: He tried to show me how man and woman made a baby.

Anne: Yeah?

VC: Uh huh.

Hicks: But what did he do with his penis in your vagina?

VC: Well he didn't really go in but he tried to show me with it. They were really (unclear) and then he showed me how they could have it but not have a baby by not using that. (drew line from mouth to vagina on drawings)

Anne: How did he show you that? With his mouth on your vagina?

VC: Uh huh.

Anne: Yeah.

Hicks: What did he do with his mouth?

VC: He showed me another way on how not to have a baby.

Anne: Yeah how's that? His mouth inyourvagina?

VC: Un huh.

(Pet'r's Mot. Summ. J., Ex. 2b at 18-19.)

6 Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 7 of 20

Prior to trial, Wellington, who was indigent and represented

by the public defender, moved the court to provide $2000 to allow

his counsel to consult with Dr. Phillip Esplin, an expert in

interviewing techniques and child witness suggestibility. In his

motion, Wellington argued:

There are grounds for challenging the interview techniques used in this case as improper because they were not recorded, because leading questions and anatomical drawings were used, and because the child was not asked about her memories of prior instances of abuse. Such interview techniques, when used on a young child, can undermine the reliability of the children's statements and their subsequent testimony.

(Resp't's Mot. Summ. J., Ex. 1 56 (citing S. C e c i & M. B r u c k ,

Jeopardy in t h e C o u r t r o o m : A Sc i e n t i f i c A n a l y s is of C h i l d r e n 's T e s t i m o n y ,

233-68 (American Psychological Association); State v. Michaels.

(N.J. 1994); State v. Sargent.

(1999)). Relying on Sargent, Wellington contended that his

defense required an expert to examine the transcript of the

September 24 interview, to explore the possibility of false

memory implantation resulting from improper interviewing

techniques.“

“ Sargent holds that "the proper protocols and techniques used to interview child victim witnesses is a matter not within

7 Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 8 of 20

After a hearing, and after reviewing the videotape of the

September 24 interview. Judge McGuire denied Wellington's motion.

She construed Wellington's complaint as being that the initial

interviews with Victoria were not recorded and that

the taped interview [on September 24] was improperly conducted because the interviewers: 1) gave Victoria C. a brownie and allowed her to play a game of "hangman"; 2) asked suggestive and leading questions; and 3) failed to ask her about prior instances of child abuse.

(Resp't's Mot. Summ. J., Ex. 3 at 4.) Based upon her own review

of the videotape. Judge McGuire determined that the interviewers'

conduct was not "unduly suggestive or otherwise improper," id. at

5, because it involved neither "implied promises of reward for

specific evidence," id., nor "any improper leading or incessant

questioning." Id. The judge also noted that the interviewers'

questions were not improperly suggestive, based upon Victoria's

ability to "provide answers to open-ended questions." Id.

Finally, the judge determined that, contrary to Wellington's

assertion, Victoria had not been involved in any prior instances

the knowledge and understanding of the average juror,"

(citations omitted), and that a party may introduce expert testimony on that subject after making "a particularized showing that improper interview techniques were used,"

Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 9 of 20

of child abuse and that, as a result, the interviewers could not

be faulted for failing to inquire about prior sexual abuse. (Id.

at 6 .)

Wellington moved the court to reconsider its denial of funds

to hire Dr. Esplin. In his motion, he advanced the following

reasons:

I. An interview with Dr. Esplin and information from recent depositions show that improper and leading questions were used during the interview of the alleged victim;

II. The deposition of witnesses in this case has shown that the alleged victim was on medication at the time of the interviews, suffers from a mental illness and developmental disabilities which Dr. Esplin has said would affect her developmental age and therefore affect her susceptibility to suggestibility, and;

III. There were multiple unrecorded interviews of the alleged victim prior to her tape recorded interview with the Franklin Police, some of which were conducted by individuals with no training in the proper interviewing of children in this area.

(Resp't's Mot. Summ. J., Ex. 4 at 1-2.) Wellington identified

the following examples of leading questioning:

During the questioning on pages 17-19 of the transcript, leading questions were used in conjunction

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with the anatomical drawings. On page 18, when Victoria drew a line from the circled groin area of one drawing to the other. Detective Hicks said, "what did he try to do with his penis in your vagina?" Three lines later Detective Hicks says, "But what did he do with his penis in your vagina?" On page 19, the technique is repeated when Detective Hicks says, "Yeah How's that? His mouth in your vagina?" Dr. Esplin indicated that these are leading questions and are improper interview techniques.

Id. at 3. Judge McGuire denied Wellington's motion to

reconsider.

Wellington appealed to the New Hampshire Supreme Court.

State v. Wellington.

(2004). The supreme court

affirmed, explaining that "[a]t the time of [Wellington's]

request, he merely pointed out to the trial court, through his

motions and during his motion hearings, that a few improper

techniques may have been employed during the interview without

demonstrating how those improper techniques would affect his

case."

. The court further observed that "[i]n all

instances, the defendant, while citing examples of possible

improper interview techniques, failed to point out how, under the

facts and circumstances of his case, those techniques, if

improper, affected the victim's answers so that an expert was

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necessary to ensure effective preparation of his case."

at

786 (citing State v. Campbell,

(1985)). The

supreme court found "no evidence that the victim's answers were a

result of any suggestibility that could be attributed to leading

questions or other allegedly improper techniques." Id. at 787.

The court concluded by stating:

The defendant must point to some evidence, aside from mere hope for its existence, which would tend to indicate a causative effect of an improper interview technique, and, in this case, he failed to satisfy that burden.

Id.

In his petition to this court, Wellington asserts that the

New Hampshire Supreme Court's decision was both contrary to and

an unreasonable application of the United States Supreme Court's

decision in Ake v. Oklahoma,

(1985). Specifically,

he asserts that Victoria was subjected to repeated interviews;

that two of the police officers who interviewed her were not

trained in interviewing children; and that the police officers

who interviewed Victoria on September 20 did not tape record

their interviews. He also complains that the interviewers

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conducting the September 24 interview used leading questions and

introduced sexual terms before Victoria did; used anatomical

diagrams before Victoria gave a full description of the alleged

assaults; and offered Victoria a reward, in the form of a game of

hangman, for completing the interview. He also asserts that

Victoria may have been especially vulnerable to suggestion due to

medication she was taking for depression and counseling she was

receiving for poor socialization skills.

Discussion

Respondent moves for summary judgment, arguing that

petitioner was not entitled to the funds he sought because he

never made anything more than "undeveloped assertions" that the

requested assistance was necessary for an adequate defense.

In Ake, the decision upon which petitioner relies, the

Supreme Court held that

when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one.

12 Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 13 of 20

. The Court explained that

while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, see Ross v. Moffitt.

(1974), it has often reaffirmed that fundamental fairness entitles indigent defendants to "an adequate opportunity to present their claims fairly within the adversary system,"

. To implement this principle, we have focused on identifying the "basic tools of an adequate defense or appeal," Britt v. North Carolina.

(1971), and we have required that such tools be provided to those defendants who cannot afford to pay for them.

Ake,

(parallel citations omitted.) In another

opinion, the Supreme Court elaborated on its holding in Ake,

observing that a trial court's refusal to appoint various experts

to assist a criminal defendant did not violate the defendant's

due process rights when he "offered little more than undeveloped

assertions that the requested assistance would be beneficial."

Caldwell v. Mississippi,

, 323 n.l (citing Ake,

).

A. "Contrary to"

Petitioner concedes that the New Hampshire Supreme Court did

not reach a conclusion different from that reached by the United

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States Supreme Court on a materially indistinguishable set of

facts. Instead, he rests his "contrary to" argument on the

theory that the "state court arrive[d] at a conclusion opposite

to that reached by [the Supreme] Court on a question of law."

Williams,

.

The New Hampshire Supreme Court's decision in Wellington did

not hold that the assistance of an expert, at government expense,

need not be provided to an indigent criminal defendant who has

"made a preliminary showing" that an issue within the requested

witness's expertise was likely to be a significant factor at

trial. Ake,

. Petitioner, rather, argues that the

state supreme court's ruling was contrary to Ake under principles

outlined in Williams v. Matesanz,

(1st Cir. 2000):

[Williams v .1 Tavlor[,

] and 0 'Brien [v. Dubois,

(1st Cir. 1998)], read together, shed some helpful light on how [28 U.S.C.] section 2254(d)(1) operates. For example, in discussing when a state court decision would be contrary to clearly established Supreme Court case law, the Tavlor Court noted that "[a] state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases." [

]. The Court added that "[a] state- court decision will also be contrary to this Court's clearly established precedent if the state court

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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."

at [406]. These statements dovetail with our earlier observation that the "contrary to" prong of section 2254(d)(1) imposes a burden on the petitioner to "show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court." 0"Brien,

(emphasis supplied). Explicating what was meant by this requirement, we stated that "the key inquiry . . . is whether a Supreme Court rule by virtue of its factual similarity (though not necessarily identicality) or its distillation of general federal law precepts into a channeled mode of analysis specifically intended for application to variant factual situations can fairly be said to require a particular result in a particular case."

.

230 F .3d at 424-25.

Ake does not require an outcome contrary to that reached by

the New Hampshire Supreme Court in Wellington. For one thing,

the opinion in Ake does not represent a "distillation of general

federal law precepts into a channeled mode of analysis

specifically intended for application to variant factual

situations." Matesanz,

(emphasis added). There

is nothing in Ake to suggest that the Supreme Court intended its

decision to apply to experts other than psychiatrists or to

situations other than the assertion of a defense based upon the

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defendant's mental condition. Rather than establishing a broadly

applicable general principle, the Ake decision applied the

general principle set out in Britt - that indigent criminal

defendants are entitled to the basic tools of an adequate defense

- to a specific set of facts.

Moreover, Ake plainly contemplates a demonstration of need,

on a case-by-case basis, not a blanket entitlement to all

services requested. In petitioner's view, he made a preliminary

showing of need, by pointing to allegedly improper interviewing

techniques employed by those who interviewed Victoria.

But improper, clumsy, insufficient or deficient interviewing

techniques do not necessarily result in false testimony or

unreliable witnesses. Petitioner failed to link the allegedly

improper interviews to inculpatory testimony at trial. An expert

was not needed to opine on whether questions were leading or the

police interviews deviated from accepted norms, but to testify

that leading questions might have caused the witness to assert

fiction as fact, or to give the interviewers' suggestions as her

own memory. The state supreme court repeatedly observed that

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while Wellington identified several improper interviewing

techniques, he failed to identify any of Victoria's responses

during the interview, or any trial testimony, that may have been

the product of the improper techniques he identified. The court

also noted several instances in which Victoria was asked a

leading question but responded by disagreeing with - and

correcting - the objectionable part of the question, thus

negating any suggestion of implanted memory or testimony. It

seems fairly apparent that Supreme Court precedent requires an

indigent defendant to make a "preliminary showing" that some

inculpatory evidence that an expert might effectively undermine

is likely to be presented, before the state must provide funds to

secure expert services.

Ake does not require a different standard than that employed

by the New Hampshire Supreme Court in Wellington. In Ake, the

defendant's sanity at the time of the offense was "seriously in

question,"

, as evidenced by pre-trial behavior so

bizarre that the trial judge, sua sponte, ordered a psychiatric

evaluation of Ake's competency to stand trial, a subsequent

diagnosis of paranoid schizophrenia; and a judicial

17 Case l:04-cv-00478-SM Document 8 Filed 09/27/05 Page 18 of 20

determination, six months after the offense conduct, that Ake was

incompetent to stand trial.

.

Here, the record discloses some leading questions by

interviewers, but answers by the victim establishing that she

effectively resisted the "implantation" of inculpatory testimony.

None of her answers were shown to be both inculpatory and

arguably the product of improper questioning. Accordingly, the

state supreme court did not err in holding that funds for an

expert witness on that issue need not be provided, defendant

having failed to meet his burden to make a preliminary showing of

need. The state court's holding was not contrary to Ake or other

Supreme Court precedent.

B. "Unreasonable Application"

Petitioner offers essentially the identical argument under

the "unreasonable application" prong of Williams. (Pet'r's Resp.

to Mot. Summ. J. 5 11.) He contends that the New Hampshire

Supreme Court either derived the wrong rule from Ake, by

requiring him to "explain specifically how an expert would use

the improper interviewing techniques and other factors to aid the

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defense, at a stage in the litigation where the expert had not

had the opportunity to review either the discovery or the video

taped interview," or, misapplied the rule from Ake, by denying

him expert assistance because he could not "explain the expert's

conclusion before the expert [had] conducted a measured review of

the case."

For the reasons already given, it was neither

contrary to Ake nor an unreasonable application of Ake for the

New Hampshire Supreme Court to require Wellington to make a

preliminary showing that allegedly improper interviewing

techniques might have resulted in the development (and admission

at trial) of unreliable inculpatory victim testimony, before

public funds would be made available for expert services related

to that defense.

Conclusion

Respondent's motion for summary judgment (document no. 6) is

granted and so, necessarily, Wellington's petition is dismissed.

The clerk of the court shall enter judgment in accordance with

this order and close the case.

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SO ORDERED.

S^teven J/’McAuliffe "hief Judge

September 27, 2005

cc: David M. Rothstein, Esq. Susan P. McGinnis, Esq.

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