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Towle v. Warden, New Hampshire State Prison

United States District Court, D. New Hampshire

September 30, 2019

Robert V. Towle
v.
Warden, New Hampshire State Prison

          Robert V. Towle, pro se

          Elizabeth C. Woodcock, Esq.

          ORDER

          Steven J. McAuliffe, United States District Judge.

         Petitioner Robert V. Towle has filed this action, pursuant to 28 U.S.C. § 2254, challenging the legality of his present incarceration pursuant to his 2013 convictions for sexually assaulting his son, J.T., and for being an accomplice to sexual assaults of J.T. by two other individuals. See § 2254 Pet. (Doc. No. 1), as amended by Doc. Nos. 9-1, 65, 67, 91, 123 (collectively “Petition”). Before the Court are two motions for summary judgment (Doc. Nos. 133, 139), filed by the Respondent, the Warden of the New Hampshire State Prison, and Towle's objections (Doc. Nos. 158, 161) to those motions.

         Background[1]

         Petitioner was convicted on January 29, 2013, of four counts of aggravated felonious sexual assault (“AFSA”) for engaging in fellatio and anal penetration with his minor son, J.T., and four counts of criminal liability for the conduct of another for being an accomplice to the sexual assaults of J.T. by Edna Jodoin and Katie Wilmot, after a jury trial held in the New Hampshire Superior Court, sitting at Coos County (“CCSC”), State v. Towle, Nos. 08-S-289, 09-S-96, -97, -99 (“Towle Crim.”). See generally Pet. (Doc. No. 1, at 1); State v. Towle, 111 A.3d 679, 681 (N.H. 2015) (citations omitted).[2] The court sentenced Petitioner on March 11, 2013 to serve 57 - 114 years in prison, and ordered that he have no contact with J.T. and Petitioner's other minor son. See Towle, 111 A.3d at 681.

         Prior to trial, Petitioner waived his right to counsel and indicated he wished to represent himself. The trial court held a two-hour hearing on May 1, 2012, pursuant to Faretta v. California, 422 U.S. 806, 835 (1975), to determine whether Petitioner's waiver of his right to counsel was knowing, intelligent, and voluntary. See generally May 1, 2012 Faretta Colloquy Hr'g Tr. (“Faretta Tr.”) (Doc. No. 19).[3] The CCSC concluded that Petitioner's waiver was knowing and voluntary, and it approved a partial representation plan proposed by Petitioner and his attorney. Under that plan, Petitioner would represent himself “from the moment the jury [was] sworn until the moment the jury retire[d] to begin deliberations, during which period Attorney [Joseph] Fricano [was] appointed and act[ed] as standby counsel.” Id. at 65; see also Id. at 7-8, 12, 13, 55. Prior to the jury being sworn in, and after the jury retired to deliberate, Petitioner was represented by Attorney Fricano. See id.

         The New Hampshire Supreme Court (“NHSC”) affirmed Petitioner's convictions on direct appeal but reversed the no-contact order imposed at sentencing. See Towle, 111 A.3d at 682. Petitioner's sentence remains otherwise intact. Id. at 690.

         On April 2, 2015, Petitioner filed his Petition in this Court. On August 28, 2015, the Court issued a preliminary review order, identifying fourteen proposed grounds for relief in the petition, and directing Petitioner to either: 1) file a motion to amend his petition asserting the federal nature of each of the proposed grounds for relief and demonstrating that each of those federal claims has been exhausted in the state courts; or 2) file a motion to stay this civil action to allow him to exhaust his state court remedies on his federal claims. See Aug. 28, 2015 Order (Doc. No. 5).

         Thereafter, Petitioner filed a motion to amend (Doc. No. 9) his Petition. The Court entered an Order (Doc. No. 13) granting the motion and finding that Petitioner had exhausted the federal grounds for Claims 1-14. Petitioner then filed two additional motions to amend (Doc. Nos. 65, 67), and a motion to stay this action (Doc. No. 85) to allow him to exhaust state court remedies for the federal claims raised in those two motions to amend. The Court granted Petitioner's motion to stay. See June 14, 2017 Order (Doc. No. 88).

         Subsequently, Petitioner filed a motion to lift the stay (Doc. No. 90), and a fourth motion to amend (Doc. No. 91) the Petition. The Court lifted the stay on January 9, 2018 and entered an Order identifying ten new federal claims (identified as Claims 15 - 24) raised in Petitioner's second, third, and fourth motions to amend. See Feb. 15, 2018 Order (Doc. No. 117) (approving Jan. 16, 2018 R&R (Doc. No. 100)). The Court granted the motions to amend, to the extent they alleged violations of Petitioner's rights under federal constitutional law. See Id. On February 1, 2018, this Court entered an Order (Doc. No. 107) granting another stay in this matter to allow Towle to again return to the state courts to exhaust claims alleging that his trial and appellate counsel in the state criminal proceedings had denied him the effective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights.

         On May 31, 2018, Petitioner filed a motion to lift the stay (Doc. No. 123) which this Court construed, in part, as a fifth motion to amend the Petition to add three claims asserting ineffective assistance of trial counsel, identified as Claims 25 - 27. See June 28, 2018 Order (Doc. No. 127). Respondent filed two motions for summary judgment, one addressing Claims 1 - 14 (Doc. No. 139) and one addressing Claims 15 - 27 (Doc. No. 133). Towle filed objections (Doc. Nos. 158, 161) to the motions for summary judgment.[4]

         Discussion

         I. Claims Not Decided in the State Courts

         A. De Novo Standard

         A federal court may review a petition for a writ of habeas corpus “only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). When a petitioner raises a federal constitutional claim in the state court, and the state court does not address that claim, the federal habeas court will consider the claim de novo. See Pike v. Guarino, 492 F.3d 61, 67 (1st Cir. 2007).

         B. Claims 1 and 2

         In his Petition, Towle asserted the following claims, identified by the Court as Claims 1 and 2:

1. The trial court erred in allowing the prosecutor to refresh J.T.'s recollection when J.T. had not testified to any lack of recollection, concerning whether Towle engaged in fellatio with J.T. on one occasion.
2. The trial court erred in allowing the state to elicit testimony that photographic evidence corroborated the allegations against Towle, while the photograph itself was excluded from the trial.

Aug. 28, 2015 Order (Doc. No. 5, at 2).

         Towle raised these claims in a post-conviction motion, entitled “Motion to Vacate II” (“MTV II”) (Doc. No. 9-1) filed in his criminal case in the CCSC.[5] The CCSC denied that motion and dismissed Claims 1 and 2 because it believed “they present[ed] the very same issues that the defendant raised and the New Hampshire Supreme Court decided on his direct appeal . . . [and] the Supreme Court's rulings are final.” See Sept. 30, 2015 Order, Towle Crim. (Doc. No. 9-2, at 2). Towle, however, did not argue in his brief on direct appeal that the two evidentiary rulings described in Claims 1 and 2 violated his federal constitutional rights; thus, he raised those issues as claims that the trial court had misapplied state rules of evidence. See Apr. 4, 2014 Def.'s Rule 7 Appeal Br. (“Def.'s Br.”), State v. Towle, No. 2013-0217 (N.H.) (“Direct Appeal”) (Doc. No. 139-2). In its opinion affirming Towle's convictions, the NHSC did not address the claims raised on appeal in federal constitutional terms. See Towle, 111 A.3d 679 (N.H. 2015). Accordingly, the court considers the federal nature of Claims 1 and 2 de novo. See Pike, 492 F.3d at 67.

         1. Claim 1

         In Claim 1, Towle claims the trial court violated his Sixth and Fourteenth Amendment rights when it allowed the prosecutor to refresh J.T.'s recollection, when J.T. had not testified to any lack of recollection, concerning whether Towle engaged in fellatio with J.T. on one occasion. See Pet. (Doc. No. 1, at 7-8). The NHSC summarized the facts related to this claim as follows:

The defendant first argues that the trial court erred by permitting the State to use prior statements to refresh the victim's recollection of the final sexual assault that occurred in early 2006, after the victim had been removed from the defendant's custody. The defendant asserts that the victim testified unequivocally that the defendant had not sexually assaulted him on that occasion and was neither confused nor uncertain. Therefore, he argues, the State had no justification for refreshing his recollection.
The record reflects the following exchange on direct examination:
[State]: And did anything happen at that time when your father [was] there?
[Victim]: Well, I had showed up. And he was in the computer room with the baby. I went back there. And we were chit-chatting. He was doing whatever on the computer and drinking a beer. And then he had asked me to take my pants off. And I was like, really? You know, we're already in this situation and you're right here asking me to take my pants off. And I just had a serious problem with that.
[State]: And then what ended up happening?
[Victim]: To the best of my knowledge, I just decided against it. I was really uncomfortable with the whole situation. I didn't want it to happen, period. You know? It was I'm here to see my brother, not to engage with you. You know? It's unnecessary.
. . .
[State]: [D]id you argue with him or what?
[Victim]: No, I don't believe there was any real arguing. Just, you know, I felt my time being there was over and I believe I left.
. . .
[State]: And so did anything happen between you and your father at that location?
[Victim]: No, because I believe I made sure it didn't.

         The defendant, who represented himself at trial, revisited the incident during his cross-examination of the victim:

[Defendant]: [The State] asked you-he was trying to ask you, you know, if you were assaulted by me at the Reed's [sic] house on High Street.
[Victim]: Right.
[Defendant]: And just in your testimony, you conveyed to him that nothing happened?
[Victim]: To the best of my memory, nothing happened. I put it-you know, I said No.
[Defendant]: Just a second ago, did you not just say to me that it wasn't in front of [infant son], it was-
[Victim]: Well, the situation that you were trying to do wasn't happening in front of [infant son].
[Defendant]: My question to you was not whether there was a situation. My question was-
[Victim]: Well, if you're referring to nothing happening, you know, you trying to get me to take my pants off, and if that's not it, then please fix me-point me to where I'm supposed to go with that. Correct me. That's what I'm trying to say.
On redirect, the State attempted to use the victim's prior statements to refresh his recollection of the incident. The defendant objected on the basis that the State had not laid a foundation for refreshing the victim's recollection. The trial court sustained the objection and ordered the State to first establish that the victim's recollection needed refreshing. The following exchange occurred:
[State]: Now, in terms of your testimony yesterday during direct and cross-examination, you talked about visiting your brother . . .
[Victim]: Uh-huh.
. . .
[State]: And you recall the Defendant propositioning you at that time to do what had happened many times before that you testified?
[Victim]: Yes, sir.
[State]: And at that point you testified that you didn't recall him actually performing oral sex on you at that time; is that correct?
[Victim]: I did.
Next, the State asked the victim to review a portion of his interview with a staff member at the Child Advocacy Center and whether the interview refreshed his recollection about the incident that had occurred in early 2006. The victim stated that the interview did refresh his recollection, and the defendant objected.
During the ensuing sidebar conference, the defendant argued that the State was attempting to refresh the victim's recollection when the victim, on direct examination, had never stated that he could not remember what had occurred and stated clearly that nothing had happened. The State argued that the victim had just declared that he did not recall what had occurred, and only at that point did the State ask the victim to review the interview transcript. The trial court overruled the objection and allowed the State's examination to continue. The State continued its redirect examination and the victim stated that he remembered the defendant asking him to take his pants off and the defendant actually performing oral sex on him.
The defendant reiterated his objection during the next day of trial and in a motion to dismiss after the conclusion of the State's case. The State argued that the victim had stated on redirect examination that he did not remember if anything had occurred during that visit with the defendant in early 2006 and that its efforts to refresh the victim's recollection were proper. After noting that it had “observed and heard the entire course of trial and . . . the circumstances presented, ” the trial court ruled that refreshing the victim's memory was proper.

Towle, 111 A.3d at 682-83.

         The rules of admissibility of evidence are governed by state law, which is beyond the province of this Court with respect to habeas relief, unless there is a federal constitutional claim raised. See Kater v. Maloney, 459 F.3d 56, 61 (1st Cir. 2006). “An erroneous evidentiary ruling that results in a fundamentally unfair trial may constitute a due process violation and thus provide a basis for habeas relief.” Lyons v. Brady, 666 F.3d 51, 55 (1st Cir. 2012). “[T]o give rise to habeas relief, the state court's application of state law must be so arbitrary or capricious as to constitute an independent due process violation” and “must so infuse the trial with inflammatory prejudice that it renders a fair trial impossible.” Id. at 55-56 (internal quotation marks, ellipsis, and citations omitted). “The Supreme Court has ‘defined the category of infractions that violate fundamental fairness very narrowly.'” Kater, 459 F.3d at 61 (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). “Generally, state-court evidentiary rulings cannot rise to the level of due process violations unless they ‘offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'” Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (brackets omitted) (quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)).

         In his Petition, Towle does not identify any reason why the trial court's ruling was “arbitrary or capricious” or how admission of J.T.'s testimony “so infuse[d] the trial with inflammatory prejudice” that it rendered Towle's trial fundamentally unfair; he only argues that the trial court's ruling was erroneous under state law. See Pet. (Doc. No. 1, at 7-8). Additionally, in his objection to the Warden's motion for summary judgment, Towle again argues whether the trial court's ruling was correct under the New Hampshire Rules of Evidence. See May 14, 2019 Pet'r's Obj. to Resp't's Mot. for Summ. J. (Doc. No. 158, at 1-11). Towle makes only passing reference to due process, stating, without explanation, that the trial court's ruling was not supported by the record “and prejudiced Towle to the extent that it rendered the trial fundamentally unfair.” Id. at 9.

         The NHSC, however, concluded that the trial court's ruling was supported by the record, specifically rejecting Towle's assertion that “[n]othing in [the victim's] trial testimony . . . afforded a basis to allow the prosecutor to employ the refreshing-recollection device.” Towle, 111 A.3d at 684.

In his testimony, the victim described a myriad of abuses inflicted on him by the defendant. He testified with clear and unambiguous language to such things as statements the defendant made to him, acts the defendant made him perform or performed on him, and where and when such acts occurred. When he began to detail the incident that occurred in early 2006, however, the tone of his language became uncertain and ambiguous. In his description of that incident, he began using phrases such as “I believe, ” “to the best of my knowledge, ” or “to the best of my memory” before detailing what he believed had occurred. This phraseology suggests uncertainty or a failure of memory, and the shift from clear and unambiguous language to uncertain language, along with the trial court's ability to observe the victim's demeanor, supports the trial court's reasonable conclusion that the victim's memory was exhausted. Furthermore, the victim, on redirect examination, testified that he “didn't recall [the defendant] actually performing oral sex on [him]” in early 2006. Accordingly, we conclude that the trial court properly exercised its discretion by permitting the State to use the victim's prior statements to refresh his recollection.

Id. at 684-85.

         Towle does not allege that he was unable to confront or cross-examine J.T. about his memory of the event and it was within the province of the jury to evaluate J.T.'s credibility. See Roman v. Mitchell, 924 F.3d 3, 8 (1st Cir. 2019). Accordingly, the Court concludes that regardless of whether the trial court's ruling was unquestionably correct, allowing the prosecutor to refresh J.T.'s recollection was “well within the universe of plausible evidentiary rulings” and, “therefore, not so arbitrary or capricious as to work a denial of [Towle's] constitutionally secured fair-trial right.” Coningford v. Rhode Island, 640 F.3d 478, 485 (1st Cir 2011). Accordingly, the Respondent's motion for summary judgment (Doc. No. 139) is granted as to Claim 1.

         2. Claim 2

         In Claim 2, Towle asserts that the trial court erred in allowing the state to elicit testimony that photographic evidence corroborated the allegations against Towle, while the photographs themselves were excluded from the trial. See Pet. (Doc. No. 1, at 10). The NHSC summarized the facts related to this claim as follows:

Before the trial began, the defendant filed a pre-trial motion to exclude five photographs that depicted the defendant and the victim nude and in various states of arousal. The trial court granted the motion to the extent that the photographs and any “explicit inflammatory testimony” describing the photographs would not be admissible at trial unless the defendant “opened the door.” Nevertheless, the trial court allowed the State to elicit testimony regarding the photographs and their “inappropriate” nature to explain why E.J., the witness who brought the sexual abuse to the attention of the police and the New Hampshire Division for Children, Youth, and Families (DCYF), came forward with her allegations. Then, prior to E.J.'s testimony, the trial court ruled that the photographs could be described as evidence that E.J. believed would implicate the defendant in criminal activity. In reaching this conclusion, the trial court found that the photographs had significant probative value, particularly with respect to explaining why E.J. went to the police and DCYF and why those agencies took action against the defendant, but the photographs could unfairly prejudice the defendant. Therefore, the trial court excluded the photographs and any graphic descriptions thereof but permitted testimony that E.J. had evidence that she believed substantiated her allegations in order to provide context to her actions and testimony.
During the trial, other witnesses briefly discussed the photographs in various contexts. The victim, during the State's direct examination, testified that he finally “opened up” about the sexual abuse after his guardian ad litem (GAL) confronted him with the fact that she had “[seen] the pictures.” This was the only time during trial that this evidence was referred to as being photographic in nature.[FN 1] Attorney Jennifer Dougherty and Karen York, who were both affiliated with DCYF, Detective Karl Nelson of the Berlin Police Department, and Attorney Wendy Roberts, the victim's GAL, were all asked on cross-examination by the State about physical evidence, specifically referring to the photographs, brought by E.J. to substantiate the allegations she made to DCYF and the Berlin police. The trial court overruled the defendant's objections to these lines of questioning because it found that the defendant, during his direct examination of each witness, had challenged E.J.'s credibility regarding the claims she had made to DCYF and the Berlin police, as well as the bases for both entities to take action against him. The trial court concluded that the defendant had “opened the door” for the State to correct any false or misleading impressions the witnesses' responses may have created and, further, that the probative value of the testimony the State sought to elicit was not substantially outweighed by the danger of unfair prejudice to the defendant.
[FN 1:] We note that this testimony occurred prior to the trial court's decision to prevent E.J. from referring to the photographs as anything but “evidence.” After the trial court imposed this limitation, the photographs were referred to as either evidence or evidence that E.J. believed was substantial or credible.

Towle, 111 A.3d at 685 & n.1.

         Towle does not identify any reason why the trial court's evidentiary rulings were “arbitrary or capricious” or how the witnesses' testimony about the photographs “so infuse[d] the trial with inflammatory prejudice” that it rendered his trial fundamentally unfair. Lyons, 666 F.3d at 55, 56; see Pet. (Doc. No. 1, at 10). Instead, Towle contends the trial court's evidentiary rulings were erroneous because “there is no such ‘evidence' in existence as the court came to know at an evidentiary hearing outside the presence of the jury.” Pet. (Doc. No. 1, at 10). Towle's assertion that the photographs about which the witnesses testified did not exist simply is not consistent with the record, given that defense counsel moved to have the photographs excluded, and Towle's brief on appeal describes what was depicted in the photographs. See Def.'s Br., Direct Appeal (Doc. No. 139-2, at 19).

         On direct appeal, Towle challenged the trial court's application of New Hampshire Rule of Evidence 403, which states that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” N.H. R. Evid. 403. Towle argued that the cumulative effect of the references to the photographs created the same impression that would have been created had more explicit testimony describing the photographs been admitted. See Towle, 111 A.3d at 686. The NHSC held that the trial court did not abuse its discretion in allowing the testimony. See Id. at 687.

         The trial court allowed testimony about the photographs because it provided necessary context to the testimony of the witnesses - specifically, it explained why the witnesses took certain actions in the case, such as filing a complaint with the police, opening an investigation, confronting another witness, and acknowledging acts of sexual abuse. Only once was the evidence identified as “pictures, ” and that was a passing reference made by J.T. when he was explaining why he finally admitted Towle's abuse to his guardian ad litem (“GAL”). Otherwise, the witnesses were permitted to testify that they were in possession of, or had seen, “evidence” corroborating the reporting witness's allegations to police and the Division for Children, Youth, and Families (“DCYF”) that Towle had abused J.T.

         Towle himself opened the door to the testimony of the DCYF witnesses, the Berlin Police Department witness, and J.T.'s GAL concerning the photographs, by attacking the conclusions they reached about whether Towle might have sexually assaulted or otherwise sexually abused J.T., and by attacking whether there were grounds for the actions that the witnesses took based on those conclusions. The trial court allowed the State to elicit limited testimony about the photographs on cross-examination of the witnesses, finding that “the witnesses' testimony could, without clarification, lead the jury to conclude that the Berlin police and DCYF had no justification for taking action against the defendant.” Id.

         The trial court's evidentiary rulings were not “arbitrary” or “capricious”; throughout the trial, the court ruled that the limited testimony it allowed about the photographs was necessary to provide context to the witnesses' actions. In addition, Towle has failed to show that any unfair prejudice outweighed the testimony's probative value. The mere fact that evidence hurts a defendant's case does not make its admission erroneous. See United States v. Rodríguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989). Such evidence is problematic under the Constitution only when the evidence “so infuse[s] the trial with inflammatory prejudice” that it renders a defendant's trial fundamentally unfair. Lyons, 666 F.3d at 56.

         In Towle's case the trial court took affirmative steps to minimize the risk of unfair prejudice by excluding from trial the most prejudicial aspect of the evidence, the photographs themselves and any graphic or inflammatory descriptions of the photographs. Furthermore, the trial court offered to issue a limiting instruction to the jury to cure any potential unfair prejudice that Towle believed to exist, but Towle “declined the offer.” Towle, 111 A.3d at 688.[6]

         In short, Towle has failed to demonstrate that the trial court violated his right to a fundamentally fair trial under the Sixth and Fourteenth Amendments when it allowed testimony about the photographs. Accordingly, Respondent's ...


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