United States District Court, D. New Hampshire
Robert V. Towle
Warden, New Hampshire State Prison
V. Towle, pro se
Elizabeth C. Woodcock, Esq.
J. McAuliffe, United States District Judge.
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.
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). 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.
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). 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.
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.
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).
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).
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.
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.
Claims Not Decided in the State Courts
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).
Claims 1 and 2
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).
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. 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.
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
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
[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.
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.
[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
[State]: Now, in terms of your testimony yesterday during
direct and cross-examination, you talked about visiting your
brother . . .
. . .
[State]: And you recall the Defendant propositioning you at
that time to do what had happened many times before that you
[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.
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)).
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.
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
Id. at 684-85.
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 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
[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.
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).
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.
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.
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.
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.
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.
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 ...