UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Anthony Dilboy

v. Civil No. 13-cv-465-LM Opinion No.

Warden, New Hampshire State Prison

O R D E R

Anthony Dilboy is serving one of the two consecutive

sentences he received from the New Hampshire Superior Court

after being convicted of two counts of manslaughter. The

charges against him arose out of a collision in which he killed

two people by driving a pick-up truck at a high rate of speed

through a red light and striking another vehicle that had the

right of way. Dilboy now petitions for a writ of habeas corpus.

See

. Before the court is respondent’s motion

for summary judgment. The court heard oral argument in this

matter on January 11, 2016. For the reasons that follow,

Dilboy’s petition is dismissed.

I. Discussion

“[A] district court shall entertain an application for a

writ of habeas corpus in behalf of a person in custody pursuant

to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties

of the United States.”

(a). Dilboy claims that

he is in custody in violation of his Sixth Amendment right to

confront the witnesses against him. His claim arises from the

trial court’s admission of testimony from Dr. Michael Wagner,

who reported the results of blood tests that he did not conduct

or observe. In Dilboy’s view, the admission of those test

results ran afoul of the United States Supreme Court’s decision

in Bullcoming v. New Mexico, which stands for the proposition

that

the [Sixth Amendment’s] Confrontation Clause [does not] permit[] the prosecution to introduce a forensic laboratory report containing a testimonial certification – made for the purpose of proving a particular fact – through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.

, 2710 (2011). The problem with Dilboy’s claim

is that even if the trial court’s admission of Dr. Wagner’s

testimony did violate the rule announced in Bullcoming, that

violation did not result in the conviction for which he is in

custody.

Dilboy was convicted of, and is currently serving a

sentence for, manslaughter. Under New Hampshire law:

A person is guilty of manslaughter when he causes the death of another:

2 (a) Under the influence of extreme mental or emotional disturbance caused by extreme provocation but which would otherwise constitute murder; or

(b) Recklessly.

N.H. Rev. Stat. Ann. (“RSA”) § 630:2, I. Dilboy was charged

with the reckless variant of manslaughter. See Trial Tr. Vol.

1, 3:9, 22.

At the end of Dilboy’s trial, Judge Fauver instructed the

jury on manslaughter. The New Hampshire Supreme Court, when

ruling on Dilboy’s direct appeal, described Judge Fauver’s jury

instructions this way:

The court then stated that manslaughter has “two parts or elements” that the State must prove beyond a reasonable doubt; first, that the defendant “caused the death of another person”; and, second, that he “acted recklessly.” The court defined recklessly, and then discussed the factual allegations in the indictments:

Although you do not need to find all of the factual allegations occurred, you must reach a unanimous decision as to the acts that amount to recklessness. The factual allegations that you can consider in determining recklessness are:

The defendant drove a vehicle at an excessive rate of speed;

Collided with a vehicle that had a right of way;

Drove through a red light;

And at the time was under the influence of one or more controlled drugs and/or suffering the effects of heroin withdrawal.

3 The trial court instructed the jurors that they could “find that one, some, all or none of the factual allegations occurred,” but that any such finding must be unanimous.

State v. Dilboy,

(2010). After giving his

instructions, Judge Fauver gave the jury a form that asked it to

record its findings on each of the four factual predicates that

could support a determination that Dilboy had acted recklessly.

See

. That form listed the four factual predicates

and provided, for each of them, a space where the jury could

place a check mark in front of the word “YES.”

.1

The jury found that Dilboy had been driving at an excessive

rate of speed, collided with a vehicle that had the right of

way, and ran a red light. See Dilboy,

. Any one

of those three findings would have been sufficient to support a

determination of recklessness and a conviction for manslaughter.

With regard to the fourth possible factual predicate, i.e.,

being “under the influence of one or more controlled drugs

and/or suffering the effects of heroin withdrawal,” the jury

“appeared to have checked ‘yes’ for question 4, but then crossed

1 In addition to asking whether the jury unanimously found beyond a reasonable doubt that Dilboy performed any of the four acts that could support a determination of recklessness, the form asked an additional question: “If you have unanimously agreed on one or more of the acts above, do you also find that act(s) sufficient to prove the defendant acted recklessly as defined in my instructions and that the reckless act caused the death of another?” Dilboy,

.

4 it out and wrote ‘Ignore’ with an arrow pointing towards the

crossed-out check.”

. Thus, in the context of

convicting Dilboy of manslaughter, the crime for which he is now

in custody, it does not appear that the jury found that Dilboy

“was under the influence of one or more controlled drugs and/or

suffering the effects of heroin withdrawal.”

. But,

even if the jury had made such a finding, that finding would

have been necessary to support its verdict only if it had not

found that the State had proven any of the other three acts the

form asked about. Finally, while being under the influence of a

controlled drug is an element of negligent homicide, see RSA

630:3, II, and Dilboy was convicted of that crime, he was never

sentenced for his two negligent homicide convictions. See

Sentencing Tr., 70:15-17, 72:8-10.

In his amended petition, Dilboy framed the central issue

this way:

After trial, the jury convicted Dilboy of two counts of manslaughter, and two counts of negligent homicide. . . . By convicting him of manslaughter, the jury necessarily found that the State had proven the element of impairment beyond a reasonable doubt.

Am. Pet. (doc. no. 21) ¶ 21 (citation omitted). If impairment

was an element of manslaughter then, perhaps, Dilboy’s claim

might have some merit. But, as Dilboy now concedes, his

conviction for manslaughter did not require the jury to find

5 that the State had proven that he was impaired at the time of

the collision. Still, he argues that the trial court’s

admission of Dr. Wagner’s testimony had a substantial injurious

effect on the jury’s verdict because that testimony allowed the

jury to find that he drove too fast, struck a vehicle with the

right of way, and/or ran a red light because he was impaired at

the time of the collision. The court is not persuaded by

Dilboy’s argument.

In his briefing and at oral argument, Dilboy explained that

he construed the court’s order of December 31, 2015, as invoking

the principle of harmless error. The court’s actual concern was

with an antecedent issue raised by the manner in which Dilboy

framed the claim he asserts in his amended petition. That issue

is whether Dilboy’s incarceration resulted from a determination

by the jury that he was impaired by drugs at the time of the

collision, a determination that could have been influenced by

the testimony from Dr. Wagner that he now challenges. If

analyzed along the lines suggested by Dilboy’s petition, his

claim fails.

Dilboy is in custody as a result of his convictions for

manslaughter. Impairment, or being under the influence of a

controlled substance, is not an element of manslaughter.

Recklessness, which is an element of manslaughter, may be proven

6 by at least three other factual predicates that were proven in

this case. Specifically, the State proved that Dilboy was

driving too fast, struck a vehicle with the right of way, and

ran a red light. However, in order to secure a conviction for

manslaughter, the State was not required to prove that

impairment or any other condition or circumstance was the reason

why Dilboy did those things. Thus, even if the trial court

admitted Dr. Wagner’s testimony about Dilboy’s blood test

results in violation of the Sixth Amendment, Dilboy is not in

custody as a result of any such error. Stated another way,

Dilboy is not in custody due to a finding by the jury that he

was impaired, because the conviction that resulted in his

incarceration did not require the State to prove impairment. In

short, Dilboy is not entitled to the relief he seeks because he

is not in custody as a result of any finding by the jury that

required Dr. Wagner’s testimony.

The result is the same even if the court assumes that Dr.

Wagner’s testimony was impermissible under Bullcoming and

accepts Dilboy’s invitation to view this case through the lens

of harmless error. Where, as here, the state appellate court

did not conduct a harmless-error analysis pursuant to Chapman v.

California,

(1967), this court must apply the

standard announced in Brecht v. Abrahamson,

(1993),

7 to determine whether the trial court’s constitutional error was

harmless. See Connolly v. Roden,

(1st Cir.

2014). Under Brecht, “a habeas petitioner . . . must show that

the error ‘had a substantial and injurious effect or influence

in determining the jury’s verdict.’” Connolly,

(quoting Brecht,

; citing Kotteakos v. United

States,

(1946)).

In Connolly, the trial court admitted “a certificate from

[a] drug analysis laboratory explaining that [a certain piece of

evidence] was cocaine and weighed 124.31 grams, without calling

the analyst as a witness and so not making the analyst available

for confrontation.”

. The composition and

weight of the piece of evidence in Connolly were both material

facts:

For all counts, the prosecution had to prove that the substance in question was cocaine. The distribution counts, however, did not require any evidence of quantity; that evidence was relevant only to the trafficking count, for which the prosecution had to prove a quantity of between 100 and 200 grams. See Mass. Gen. Laws ch. 94C, §§ 32A(c), 32E(b)(3).

Id. at 507 n.3. The trial court’s admission of the certificate

in Connolly violated the defendant’s Sixth Amendment right to

confrontation under the rule announced in Melendez-Diaz v.

Massachusetts,

(2009). See Connolly,

. The Massachusetts Supreme Judicial Court held that the

8 trial court’s Melendez-Diaz error was harmless. See

“On

federal habeas review, the district court denied the petition,

reasoning that the state courts had already found that the error

was harmless and that the petitioner could not show sufficient

injury under the highly deferential standards announced by the

Supreme Court in Brecht . . . and Fry v. Pliler,

(2007).”

(parallel citations omitted).

The court of appeals affirmed, and explained that because

the petitioner had “not challenged the accuracy of the lab

certificates,” he could not “show substantial and injurious

effects on the jury’s verdict.” Connolly,

(citing Dominguez v. Duval,

(1st Cir.

2013)). The court elaborated:

Connolly does not claim that, had he been able to cross-examine the lab technician, the jury would have been more likely to conclude that the ball of cocaine weighed under 100 grams. Without any such claim, he cannot show on habeas review that the admission of the drug certificates had a “substantial and injurious” effect on the jury’s decision. And even if he made that claim, he has not put forward any evidence indicating what would have been revealed on cross- examination, leaving the support for his claim a matter of “pure speculation.” That is insufficient to show a “substantial and injurious” effect on the verdict.

Id. at 515 (footnote and citation omitted).

Here, Dilboy does not claim that had he been able to cross-

examine the lab technician who tested his blood, the jury would

9 have been more likely to conclude that he was not driving at an

excessive rate of speed, that he did not collide with a vehicle

that had the right of way, or that he did not run a red light.2

Without any such claim, he cannot show that the admission of Dr.

Wagner’s testimony had a substantial and injurious effect on the

jury’s verdict. If it was harmless error, under the Brecht

standard, for the trial court in Connolly to admit testimony

that violated the Confrontation Clause on matters that the State

was obligated to prove, there can be no doubt that it was

harmless error in this case for the trial court to admit Dr.

Wagner’s testimony, which was relevant only to impairment, a

matter that the State was not obligated to prove to secure a

conviction for manslaughter.

II. Conclusion

For the reasons described above, Dilboy has failed to state

a claim for habeas relief. Accordingly, respondent’s motion for

summary judgment, document no. 26, is granted. The clerk of the

2 If Dilboy could show that cross-examination of the lab technician would have made the jury more likely to conclude that he was not impaired at the time of the collision, that might call into question the validity of his conviction for negligent homicide. But he is not serving time for that conviction. Thus, the invalidity of that conviction could not provide the basis for habeas relief.

10 court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

January 19, 2016

cc: Theodore M. Lothstein, Esq. Elizabeth C. Woodcock, Esq.

11