Opinion
No. A3-00-138
August 21, 2001
REPORT AND RECOMMENDATION and ORDER
Petitioner Adrian Marshall Spath, who is confined at the Prairie Correctional Facility in Appleton, MN, has applied to this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both respondent's motion to dismiss and petitioner's motion for summary judgment, and their respective responses, are before the court. Petitioner on July 11, 2001, moved the court to withdraw his petition in order to pursue state remedies. This came several months after respondent's motion to dismiss was filed (1/18/01) and after petitioner had submitted multiple responses to respondent's motion. Were it earlier in the case, the court would undoubtedly grant petitioner's motion, but the court is now prepared to rule on the merits of the petition. Granting petitioner's motion at this time would work to abuse the writ. Thus, the court should deny petitioner's motion to withdraw case and address the merits of Spath's petition.
For the reasons articulated in this report, the undersigned magistrate judge recommends that the court grant respondent's motion to dismiss and deny petitioner's motion for summary judgment.
I. Background
The following factual summary is taken from the North Dakota Supreme Court's opinion on the direct appeal of the judgment of conviction in State v. Spath, 581 N.W.2d 123, 124 (N.D. 1998). Petitioner and his brother were arrested by Fargo police officers on October 23, 1996. The police had been contacted by petitioner's girlfriend, Nicole Hannig, who told them Spath and his brother intended to murder and rob the owner of J.T.'s Rock Shop. Petitioner's girlfriend told the police what he would be wearing and that he and his brother would be carrying a gun and a homemade silencer in a green duffle bag. The police began surveillance of petitioner and his brother, based on the information from petitioner's girlfriend, and arrested petitioner and his brother after they had passed to within 200 feet of J.T.'s Rock Shop. When the police arrested petitioner and his brother, Spath was dressed as Hannig had said he would be, and petitioner's brother was carrying the green duffle bag. A search revealed a .22 caliber handgun, a homemade silencer, a knife, and two nylon stockings in the duffle bag.
Petitioner and his brother were charged with conspiracy to commit murder and conspiracy to commit robbery. Petitioner's brother entered into a plea agreement with the prosecution. At trial, petitioner's girlfriend and brother both testified. A federal prisoner who had been at the North Dakota State Hospital when petitioner was there for an evaluation also testified. The prisoner said petitioner told him of the details of his and his brother's plan. The jury found petitioner guilty of conspiracy to commit murder and conspiracy to commit robbery. He was sentenced to 25 years in prison with five years suspended on the conspiracy to commit murder, and a consecutive term of four years on the count of conspiracy to commit robbery.
Petitioner appealed the conviction to the North Dakota Supreme Court. He argued (1) the court's refusal to order release of medical records of his girlfriend violated his rights; (2) he was denied a fair trial because the prosecution made references to his brother's criminal acts and thus it is likely the jury improperly considered evidence of his brother's criminal acts as evidence of petitioner's guilt; and (3) the trial court abused its discretion when it sentenced him. After reviewing the facts and law, the North Dakota Supreme Court found no merit to petitioner's arguments and affirmed the conviction.
Subsequently, petitioner filed a petition with Cass County District Court for post-conviction relief. The court allowed petitioner to pursue his claims of ineffective assistance of counsel and discovery violations. The state trial court had an evidentiary hearing on the two claims and held that petitioner failed to prove he was denied effective assistance of counsel and that he failed to prove any discovery violations. Petitioner appealed to the North Dakota Supreme Court, arguing his trial counsel was ineffective. The North Dakota Supreme Court summarily affirmed the trial court's decision. See Spath v. State, 2000 ND 40, 609 N.W.2d 455 (N.D. 2000).
II. Analysis
Petitioner's petition for habeas relief claims four errors of constitutional magnitude: (1) ineffective assistance of counsel; (2) failure by the prosecution to disclose information related to the forensic examination of the handgun and other items seized from the Spaths; (3) violation of his right to a fair trial because of the prosecution's handling of a military bayonet; and (4) prejudice by pre-trial publicity.
An application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim "(1) 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; or
(2) 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." 28 U.S.C. § 2254(d). While the two phrases do not necessarily define two mutually exclusive categories of questions, they "express a `mood' that the federal judiciary must respect." Williams v. Taylor, 529 U.S. 362, 385-86 (2000). "Congress intended federal judges to attend with the utmost care to state-court decisions, including all of the reasons supporting those decisions, before concluding that those proceedings were infected by constitutional error sufficiently serious to warrant the issuance of the writ." Id. "State court judgments must be upheld unless, after the closest examination of the state-court judgment, a federal court is firmly convinced that a federal constitutional right has been violated." Id. at 389.
Some of petitioner's claims were not adjudicated in state court and are thus unexhausted, procedurally defaulted, or both. However, in the interests of efficiency and in light of petitioner's motion to withdraw his petition, these claims will be analyzed to see if petitioner's constitutional rights were violated. See 28 U.S.C. § 2254(b)(2) (explaining that a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state).
A. Ineffective Assistance of Counsel
Petitioner first argues his trial counsel was ineffective. The right to effective assistance of counsel has two components: (1) petitioner must show that counsel's performance was deficient; and (2) petitioner must show that the deficient performance prejudiced the defense. Id. at 390. The deficiency portion requires showing counsel made errors so serious that counsel was not functioning as `counsel' guaranteed by the Sixth Amendment. Id. The petitioner must show that counsel's representation fell below an objective standard of reasonableness. Id. at 390-91. To establish prejudice, petitioner must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 391. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 391.
Petitioner makes several points in his effort to demonstrate his trial counsel was ineffective. First, petitioner claims his trial counsel failed to secure the medical/psychological record of a key prosecution witness, petitioner's former girlfriend, Nicole Hannig. Petitioner argues that if Hannig's mental illness had been revealed, the outcome of the trial would have been different. This argument fails for two reasons.
Petitioner's counsel did file a motion asking the court to order the release of Nicole Hannig's medical records and to authorize funds for an expert to review the records and to provide an expert opinion at trial. The requested records are confidential and privileged under North Dakota law and the trial court held Hannig must consent to release of the records. Petitioner's trial counsel renewed her motion at the beginning of trial and the trial court again denied her motion. Petitioner's counsel did her part in requesting the records and there is no reason to believe the requested relief was denied because counsel was ineffective.
Furthermore, Hannig was questioned regarding her psychological and drug problems. She testified about her diagnosis of a bipolar disorder. She testified that she was prescribed medication for her psychological problems and that she did not take it regularly. She testified that during September and October of 1996, she had not been thinking clearly, in part due to the fact she had not been taking her medication. She testified at the same time she was prescribed medications, she was using drugs. Petitioner's counsel also challenged Hannig's objectivity because petitioner had fathered a child with another woman and was involved in a paternity suit, which made Hannig angry. Petitioner's first argument for ineffective assistance of counsel is without merit because trial counsel attempted to get Hannig's records released and Hannig's credibility and mental state were brought into question during the trial.
Petitioner next argues trial counsel was ineffective because counsel failed to secure testimony of a key witness, which allowed the state to promote accusations with unsupported hearsay. Petitioner apparently believes trial counsel should have called Les Ferrick to testify on his behalf, to contradict Hannig's testimony that the gun found with petitioner and his brother belonged to Ferrick. Petitioner apparently believes Ferrick would have testified the gun was not his (Ferrick's). However, it is not clear Ferrick would have so testified had he been called as a witness. According to a Fargo Police Department Report that Spath has offered, Ferrick told the officer "the weapon used in the conspiracy to commit murder and armed robbery was quite possibly the same weapon he'd (Ferrick) had at his apartment which he had shown to Mr. Spath."
Regardless of how Ferrick would have testified, petitioner and his brother had a .22 Jennings semi-automatic handgun with a homemade silencer in their possession when they were arrested. Had Ferrick testified the gun was not his, it would not contradict this fact. Ferrick's testimony would appear to have no real exculpatory value. Thus, counsel's decision to not call Ferrick to testify (if trial counsel made that decision) falls well within counsel's discretion to make tactical judgments. See, e.g., Cox v. Norris, 133 F.3d 565, 573 (8th Cir. 1998) (holding counsel's tactical decision to not request change of venue was not outside the range of professional competence).
Thirdly, petitioner argues his counsel was ineffective because she did not object to evidence relating to fingerprint identification. Although it is not entirely clear, this argument may have two parts: failure of counsel to pursue fingerprint evidence regarding the handgun seized by police and the failure of counsel to object to certain physical evidence. Petitioner appears to be referencing a small portion of testimony at trial. Detective James LeDoux was asked whether the gun and silencer looked the same at trial as they did the day he took the items. LeDoux said, "Yes, except for the white from the fingerprinting that we conducted on the gun. There's just some white residue that we try to fingerprint." Although fingerprint tests were conducted on the gun, no fingerprints were found. Petitioner suggests this testimony unfairly implied fingerprints were found on the gun when none were.
Petitioner argues that counsel should have pursued this fingerprint issue and clarified that his fingerprints were not found on the gun. Other than the above quoted testimony, no reference was made at trial to fingerprints and the State did not attempt to insinuate petitioner or his brother's fingerprints were on the weapon. Most importantly, the gun in question was found on petitioner's brother when the two of them were arrested near J.T.'s Rock Shop. Establishing that petitioner's fingerprints were not on the gun would have made little difference in the context of the evidence at trial. This issue is another example of counsel making legitimate tactical judgments. See, e.g., Cox, 133 F.3d at 573.
Petitioner may also be arguing trial counsel was ineffective because she failed to object to physical evidence displayed in the courtroom. Based on the trial court post-conviction pleadings, it appears Spath is specifically referring to a bayonet and a derringer that were displayed during the trial. The bayonet was found in the proposed get-away car and was given to the police by Nicole Hannig. Neither weapon was offered and received into evidence. Objecting to this evidence could just as well have had the effect of highlighting it as diluting it. Therefore, this, like the previous two issues, is a question of trial tactics. See, e.g., Cox, 133 F.3d at 573. These instances listed by petitioner do not demonstrate counsel's representation fell below an objectively reasonable standard. Consequently, the North Dakota Supreme Court's decision to summarily affirm the lower court's dismissal of petitioner's post-conviction petition did not result in a decision that was contrary to, or involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.
B. Failure to Disclose Evidence
Petitioner next seeks habeas relief because the prosecution failed to disclose forensic evidence regarding the handgun and other items seized from defendant. Petitioner argues he was prejudiced because the prosecution did not tell him that his fingerprints were not on the items. Although this claim (and the others that follow) has not been presented to the state courts either in the direct appeal or in Spath's petition for post-conviction relief, this court will address it. See 28 U.S.C. § 2254 (b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.")
The issue is not whether Rule 16, N.D.R.Crim.P., was violated, but whether petitioner's due process rights were violated. Even if this court assumes the prosecution suppressed the evidence, petitioner's claim still fails. To establish a violation under Brady v. Maryland, 373 U.S. 83, 87, (1963), petitioner must demonstrate the prosecution suppressed evidence, the evidence was favorable to the accused, and the evidence was material to guilt or punishment. United States v. Duke, 50 F.3d 571, 577 (8th Cir. 1995). Evidence is "material," for purposes of Brady, "`only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id. (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id.
Rule 16 of the North Dakota Rules of Criminal Procedure deals with disclosure ofevidence by a prosecuting attorney.
The fact the prosecution failed to notify defense counsel that fingerprint analysis was done on the gun and other evidence found in the possession of the Spaths does not undermine confidence in the outcome of the guilty verdict in this case. In the context of this case, the fact that petitioner's fingerprints were not on the gun (or other items) does not prove exculpatory. Petitioner was with his brother, who was carrying a duffle bag that contained the items, just as Hannig had described to the police. Testimony at trial by petitioner's brother, Hannig and Kenneth DeMarce tied him to the crime, making any fingerprint evidence of questionable significance. Therefore, because the lack of petitioner's fingerprints on the gun and other items does not undermine confidence in the outcome of his trial, petitioner's second claim is without merit.
C. Display of Evidence
Petitioner next argues that he was denied his rights to due process and/or fair trial because the prosecution paraded a bayonet around the courtroom. The display of this bayonet, petitioner argues, planted seeds of prejudice in the minds of the jury. Nicole Hannig was questioned about different weapons that Adrian and his brother possessed. Hannig testified William, petitioner's brother, possessed a bayonet. According to Hannig, William left the bayonet in her car and then she turned it over to police after the Spaths were arrested. Hannig testified that Adrian Spath never possessed the bayonet as far as she knows.
Since petitioner did not object to the presentation or mention of the bayonet at trial, the only avenue available for review is whether the display and/or mention of the bayonet was plain error. See United States v. Campa-Fabela, 210 F.3d 837, 840 (8th Cir. 2000) (holding failure to timely object to evidentiary rulings at trial limits appellate review to plain error). Plain error occurs if 1) there is an error, (2) the error is obvious, and (3) the error affects a defendant's substantial rights. Id. Even if there has been plain error affecting the defendant's substantial rights, the conviction will be reversed only where the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.
If there was an error in this case by allowing the jury to see the bayonet, it was harmless error, not plain error. It is highly unlikely the testimony involving and display of the bayonet prejudiced petitioner. Hannig testified the bayonet was William's and that petitioner never possessed the bayonet to her knowledge. Furthermore, the bayonet meant very little in the context of the evidence offered against petitioner at trial. Hannig testified in detail about William and Adrian Spath's plans to rob J.T.'s Rock Shop and kill the owner. The Spaths investigated the procedures of the shop, acquired a handgun, made a silencer and arranged for Hannig to drive the get-away car. On approximately October 21 or 22, 1996, Hannig drove William and Adrian Spath to J.T.'s Rock Shop. However, when they arrived at the store armed with a gun and silencer, it was not yet open.
At this point, Hannig apparently realized the Spaths really intended to rob the shop and murder the owner. She then contacted Fargo police and informed them of the plan. Hannig described what petitioner would be wearing. She also said petitioner and his brother would be carrying a gun with a silencer in a green duffle bag and that they planned to carry out the plan when the shop opened again. The Fargo police began surveillance on petitioner and his brother on October 22, 1996. At about 1 p.m. on October 23, 1996, the Fargo police followed the Spaths from a residence in south Fargo to J.T.'s Rock Shop. Petitioner was wearing the clothes Hannig had described to the police and William was carrying the green duffle bag Hannig had described. The police arrested petitioner and his brother when they came within 200 feet of the shop. The police found a loaded handgun, a homemade silencer, a knife, and two stockings in the duffle bag.
Kenneth DeMarce, petitioner's cellmate at the North Dakota State Hospital in March 1997, also testified. DeMarce testified that petitioner said he and his brother were going to rob a rock shop but before they got a chance to rob it, they were arrested. DeMarce testified that petitioner told him they had been watching the store, and when they were done robbing it, they were going to kill the owner and go back to their mother's home in North Carolina. DeMarce also testified that petitioner told him he had a gun and "some kind of bottle deal to muffle the noise." DeMarce testified that petitioner picked the rock shop because it was an easy place to hit and the owner attended the store by himself.
This description of the silencer is consistent with Officer LeDoux's description.
In light of this testimony, the brief references and display of the bayonet were not the focus of the trial and made little impact based on the other evidence admitted at trial. The references to the bayonet and display of the bayonet were not plain error and did not deprive petitioner of a fair trial.
D. Pretrial Publicity
Spath's final argument for habeas relief is a broad, catchall ground. Spath states, `Further grounds are provided on attached pages, supporting information.' Respondent asserts the only other ground it finds in Spath's supporting pages is that pretrial publicity surrounding Spath's guilty plea (that was subsequently withdrawn) prejudiced him in the mind of prospective jury members. The court finds no additional arguments from petitioner in his supporting materials aside from the publicity argument.
As to the publicity argument, Spath does not come close to satisfying the high standard he must demonstrate. To prove inherent prejudice, Spath must demonstrate the trial atmosphere was "utterly corrupted by press coverage." Murphy v. Florida, 421 U.S. 794, 798 (1975). Spath provides no evidence of prejudicial pretrial publicity and thus fails to show inherent prejudice. Spath also provides no evidence of actual prejudice. Spath's claim of prejudicial pretrial publicity is without merit.
III. Conclusion
Petitioner has failed to prove the North Dakota Supreme Court's decision to summarily affirm the lower court's dismissal of petitioner's post-conviction petition 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, or 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. Petitioner's argument that the prosecution failed to disclose important information and thus violated petitioner's constitutional rights fails because the facts, even if true, do not undermine confidence in the outcome of Spath's trial. Petitioner's claim his right to a fair trial was violated because of the handling of a military bayonet fails because such error was harmless error, not plain error. Petitioner claim of pretrial publicity fails because Spath cannot demonstrate inherent or actual prejudice.
IT IS RECOMMENDED:
1. Petitioner's motion to withdraw petition (doc. # 28) be DENIED.
2. Respondent's motion to dismiss (Doc. # 13) be GRANTED.
3. Petitioner's motion for summary judgment (Doc. # 22) be DENIED.
Pursuant to Local Rule 72.1(E)(4) any party may object to this report and recommendation within 10 calendar days after being served with a copy hereof.
IT IS ORDERED:
Petitioner's renewed motions for appointment of counsel (Docs. # 15, 17) are again DENIED.
Pursuant to Local Rule 72.1(E)(3), any party may appeal from this order within ten (10) days after being served.