THORNTON v. WALL

2003 | Cited 0 times | D. Rhode Island | March 31, 2003

Report and Recommendation

Christopher S. Thornton, pro se, filed with the court a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, seeking relief following his conviction in Rhode Island state courts of kidnaping, domestic felony assaults, intimidation of a witness, and violation of a no-contact order. The Attorney General of the State of Rhode Island, designated a party respondent, has filed an Answer to the petition. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that the petition for a writ of habeas corpus be denied and dismissed. I have determined that a hearing is not necessary.

Background

A. Underlying Criminal Conduct

For some six years prior to June 1996, Debra Means ("Debra") and Christopher S. Thornton ("petitioner" or "defendant") had an amorous relationship, from which a daughter, Amy, was born. Debra lived with Amy and another son from a previous relationship in an apartment in Narragansett, Rhode Island.

The relationship between the petitioner and Debra was a tumultuous one, during which he had beaten her. On June 3, 1996, Debra broke off the relationship and obtained a no-contact order against him. The no-contact order prevented the petitioner from contacting Debra, but permitted him to visit his daughter Amy.

On June 18, 1996, an unexpected visitor appeared at Debra's apartment in Narragansett while she and Amy were at home. This unexpected, uninvited visitor was the petitioner. The petitioner walked into Debra's apartment, pulled a phone from the wall, and pulled Debra into a bedroom. Petitioner then threatened Debra, telling her that "[y]ou are going to die." Petitioner also threatened Amy, instructing Debra that he would "take her out, too" if she entered the bedroom where he was confining Debra.

A short time later, Amy's babysitter phoned. Sensing something was wrong, the babysitter asked Debra if the petitioner was there. Debra responded in the affirmative and the babysitter phoned the police. The babysitter phoned Debra again, and the petitioner threatened to kill the babysitter.

Apparently realizing that the babysitter had phoned the police, the petitioner became enraged, punching Debra in the face, knocking out her front teeth as Amy watched. Within minutes, the police arrived and Debra screamed out for help. The petitioner grabbed Debra by the hair, put a knife to her throat, and threatened to kill her again. A fourteen hour hostage standoff then ensued, with the petitioner frequently threatening to kill Debra. During the standoff, the petitioner dragged Debra to the window, in full view of the police, where he held her by the hair with a knife to her throat or with his arm around her with a knife in her back.

Debra made at least ten attempts to escape. After each attempt, the petitioner punched her in the face. The petitioner also stabbed Debra four times, twice in the side, once in the back, and once in the arm. After repeated pleas by the police, the petitioner eventually set Amy free.

Finally, in the early morning hours of June 19, a SWAT team arrived on the scene. The SWAT team stormed the apartment, subduing the petitioner. Debra was taken to the hospital for extensive medical treatment.

B. The Indictment

On September 23, 1996, a Washington County grand jury indicted the petitioner, charging him with ten offenses relating to the June 18-19, 1996, incident at Debra's apartment. The petitioner was charged with: Count I, first degree sexual assault of Debra; Count II, assault with a dangerous weapon in a dwelling; Count III, felony assault with a dangerous weapon; Count IV, assault with the intent to murder Debra; Count V, felony assault resulting in serious bodily injury; Count VI, breaking and entering of a dwelling; Count VII, violation of a no-contact order; Count VIII, kidnaping Debra; Count IX, intimidating a witness, the babysitter; Count X, kidnaping Amy.

C. Pre-Trial Proceedings

The petitioner was arraigned on September 25, 1996, pleaded not guilty to all of the charges, and was referred to the public defender's office. The public defender's office assigned Richard Brousseau ("Brousseau") to represent the petitioner. One month later, during a preliminary hearing, the petitioner moved to dismiss Brousseau, asserting that he did not feel "comfortable" with Brousseau's representation. Thornton did not set forth any specific concerns to the hearing justice, but requested a different public defender or the appointment of private counsel. The hearing justice deferred the pretrial proceedings and ordered Thornton to discuss his specific concerns with Brousseau, in an attempt to remedy the situation.

On November 25, 1996, Thornton appeared before the hearing justice and requested Brousseau's removal, stating that they had a difference of opinion. Given Thornton's complaints, Brousseau moved to withdraw from the case, which the hearing justice permitted. The hearing justice at the time, sensing that Thornton appeared to initiate a course intending to delay his trial, warned Thornton that she would not allow "differences of opinion," standing alone, to justify removal of his newly appointed attorney.

Attorney William O'Connell ("O'Connell") was subsequently appointed to represent Thornton. O'Connell's tenure was short lived. In March 1997, Thornton moved to have O'Connell discharged from his case, since O'Connell had declined to handle petitioner's earlier probation violation appeal. This matter was resolved when the public defender's office agreed to handle the appeal, and O'Connell remained as his attorney for the time being.

In August, 1997, three weeks prior to his scheduled trial, Thornton once again moved to dismiss O'Connell. Thornton also filed a disciplinary complaint against O'Connell, claiming that O'Connell failed to keep him properly informed and that O'Connell was not allocating enough time to Thornton's case. The hearing justice reminded Thornton that he was not entitled to counsel of his choice. Despite her continued suspicion that Thornton was attempting to delay the start of his trial, prompted by Thornton's request to remove O'Connell on the eve of trial, the hearing justice permitted O'Connell to withdraw, particularly because of the disciplinary complaint lodged against him by Thornton. The hearing justice however, refused to appoint new counsel and advised Thornton that it was now up to him to retain private counsel or proceed pro se. Thornton objected to the options provided by the hearing justice.

On September 8, 1997, Thornton appeared before a different superior court justice, to whom the trial of the case had been assigned. Thornton again objected to the options provided by the hearing justice. Thornton indicated that he was "uncomfortable with putting [his] life in any hands — O'Connell's hands or a standby counsel's hands" and that he would rather represent himself "even if it means having a fool for a client." He requested additional time to prepare his defense, make objections to the indictment, file discovery motions, and to request certain transcripts.

The trial justice then presented Thornton again with the option of proceeding pro se with standby counsel or being represented by O'Connell. Thornton refused O'Connell's appointment and decided to proceed pro se with standby counsel. The trial court thereafter appointed Anthony Amalfetano, a seasoned criminal defense lawyer, to serve as Thornton's standby counsel. Amalfetano filed motions on the petitioner's behalf and reviewed the motions that the petitioner had filed pro se. The trial court, at one point, also offered to appoint Amalfetano as Thornton's attorney. Thornton refused.

At a pre-trial hearing on November 14, 1997, Thornton moved to dismiss Amalfetano as his standby counsel, indicating Amalfetano was not competent in "this area of the law," apparently referring to Thornton's already decided diminished capacity defense. The trial justice refused Thornton's request.

On November 26, 1997, less than a week before trial, Thornton finally agreed to accept Amalfetano as his attorney, provided that he be given "at least a ninety day continuance to a six months continuance." The trial justice refused and considered petitioner's request yet another delay tactic. On December 2, 1997, Thornton proceeded to trial pro se, with Amalfetano as his standby counsel.

D. The Trial

The trial took place over four days. During the trial, the trial judge was a paradigm of patience. He entertained defense motions out of time, explained various points of law to Thornton, and encouraged Thornton to rely on standby counsel as much as possible. Thornton delivered an opening statement and closing argument, examined or cross examined various trial witnesses, and interposed objections. Thornton also successfully moved for judgement of acquittal of the breaking and entering charge.

E. The Verdict

On December 8, 1997, a Superior Court jury convicted the petitioner of: Count III, felony assault with a dangerous weapon; Count V, felony assault resulting in serious bodily injury; Count VII, violation of a no contact order; Count VIII, kidnaping Debra; and Count IX, intimidating a witness. He was acquitted of Count I, first degree sexual assault; Count II, assault with a dangerous weapon in a dwelling; Count IV, assault with intent to murder; and Count X, kidnaping Amy. As mentioned above, the trial justice granted the petitioner's motion for judgment of acquittal of Count VI, breaking and entering.

F. The Sentence

Prior to sentencing Thornton, the trial judge reviewed the pre-sentence report and read letters from the victim and others. The trial judge also reviewed Thornton's extensive criminal record and listened to Thornton's arguments and allocution. After so doing, the trial judge opted to impose consecutive maximum sentences on each charge for which Thornton had been convicted. This computed into some seventy five years of incarceration. The trial judge likened the events of June 18-19, 1996 to a "combat zone" and found that Thornton had to pay for the fourteen hours of repeated brutality that he had inflicted on Debra. The trial judge also noted that Thornton never attempted to take advantage of the "ample opportunities" to resolve the standoff in a peaceful manner. Rather, Thornton had placed in danger Debra's life as well as the lives of the police during the fourteen hour standoff.

G. Petitioner's Direct Appeal to the Rhode Island Supreme Court

Petitioner appealed his conviction to the state supreme court. In his appeal, Thornton contended: (1) the trial judge erred in permitting him to waive his right to counsel without determining that the waiver was knowing and intelligent; (2) the trial judge unduly impaired his right of self representation; (3) the trial judge erred when he precluded the admission of evidence that would have supported his diminished capacity defense; and (4) the trial justice erred in permitting introduction of prior bad acts by the defendant during the prosecutor's cross examination of a defense expert. Petitioner also simultaneously appealed his post trial motion for a reduction in sentence. The Rhode Island Supreme Court affirmed in all respects, with one justice dissenting and finding Sixth Amendment violations.

H. Instant Habeas Corpus Petition

On September 20, 2002, Thornton timely filed the instant petition for a habeas corpus, pursuant to 28 U.S.C. § 2254. As a basis for relief, petitioner contends essentially the same grounds presented to the state supreme court. Thus, his instant claims are exhausted. He asserts: (1) his Sixth Amendment rights were violated since his waiver of his right to counsel was not knowing and intelligent; (2) his Sixth Amendment right to self representation was impaired by the trial judge's refusal to allow him to participate in voir dire side bar conferences and side bar conferences that occurred during the trial; (3) his Sixth Amendment right to self representation was impaired by the trial judge's exclusion of the petitioner from all in-chambers conferences; (4) his Sixth Amendment rights were violated by the trial judge's exclusion of a defense witness's testimony; (5) the trial judge improperly allowed the petitioner's prior bad acts to be used to impeach Thornton's expert witness, in violation of the R.I. Rules of Evidence; and (6) the trial judge erroneously denied his motion to reduce his sentence.

In support of his petition, Thornton has submitted segments of his brief filed with the state supreme court in his direct appeal and the dissenting views of a justice of the state supreme court. According to the dissenting justice, the petitioner's Sixth Amendment rights were violated with respect to the first three above mentioned grounds for habeas relief.

Discussion

A. Habeas Corpus Standard

The Anti-terrorism and Effective Death Penalty Act ("AEDPA") significantly limits the scope of federal habeas review. AEDPA precludes the granting of habeas relief to a state prisoner, unless the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A decision is "contrary to" federal law if the state court applies a legal principle different from the governing principal set forth in Supreme Court cases, or if the state court decides the case differently from a Supreme Court case on materially indistinguishable facts. Bell v. Cone, 535 U.S. 685 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)).

To hold that a state court's decision is an "unreasonable application" of clearly established federal law, the federal habeas court must find that "the state court correctly identifie[d] the governing legal principle from [Supreme Court] decisions but unreasonably applie[d] it to the facts of the particular case." Bell, 535 U.S. at ___, 122 S.Ct. at 1850. In making this determination, a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409. The Court should be mindful that in order to grant habeas relief, the state court decision must be objectively unreasonable as opposed to merely incorrect. Williams, 529 U.S. at 411 ("A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."). Finally, the court's focus "is not how well reasoned the state court decision is, but whether the outcome is reasonable." Hurtado v. Tucker, 245 F.3d 7, 20 (1st Cir. 2001), cert. denied, 534 U.S. 925 (2001).

AEDPA also provides habeas relief when the state court decision 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)(2). However, the federal habeas court shall presume that the state court's determination of factual issues is correct and petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. § 2254(e)(1).

In this Circuit, the AEDPA deferential standard of review only applies where the state court actually addressed the merits of petitioner's federal claim. Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001). Where the state court did not address the federal issue, the standard is de novo review. Id.

B. Whether Petitioner's Waiver of his Sixth Amendment Right to Counsel Was Knowing and Intelligent, Despite the Fact That an on the Record Colloquy Did Not Occur.

The petitioner first contends that the trial court violated his Sixth Amendment rights by failing to specifically advise him of the dangers and pitfalls of self representation. That is, he contends that his decision to proceed pro se was not knowingly and intelligently made. The petitioner conceded before the state supreme court and this court that his waiver of the right to counsel was voluntary.

In addressing this issue on his direct appeal, the Rhode Island Supreme Court correctly identified the controlling Supreme Court precedent, namely, Faretta v. California, 422 U.S. 806 (1975). Thus, this instant habeas claim can not proceed under the "contrary to" prong of the habeas corpus standard. Rather, this Court must determine whether the Rhode Island Supreme Court's decision was an "unreasonable application" of Supreme Court precedent.

The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, confers upon an individual defendant in a criminal proceeding, the right to represent himself or herself. See id. at 807. However, the decision to proceed pro se entails the waiver of the right to counsel provided by that same amendment. Any such decision is invalid unless knowingly and intelligently waived. Id. at 835. The defendant must be "aware of the dangers and disadvantages of self representation, so that the record will establish that he knows what he is doing and his choice is made with eyes wide open." Id.

Here, the petitioner was never specifically admonished about the dangers of proceeding pro se. The Rhode Island Supreme Court, however, after a de novo review of the record, found that the waiver was knowing and intelligent. The state court relied upon a number of factors in the record, finding: (1) defendant's background, experience, and conduct demonstrated that he understood the dangers and disadvantages of self-representation; (2) defendant's previous contact with his three appointed attorneys in this case demonstrated that he knew the nature of the charges, the need for trial preparation, and the need for trial strategies; (3) defendant's familiarity with the specific intent requirement of many of the charges leveled against him, his opening and closing statements, as well as his cross examinations, demonstrated he understood and appreciated the criminal proceedings that were occurring against him; (4) defendant's use of standby counsel, when requested, to provide assistance to him during the trial, including during jury voir dire, complicated procedural and evidentiary motions, and the examination of witnesses, demonstrated that he had knowledge of and appreciated the ongoing trial proceedings; and (5) Thornton's attempts to continuously manipulate the proceedings demonstrated that he was more of a "wily fox than the hapless defendant he was pretending to be." Thornton, 800 A.2d at 1028-31.

Thus, the Rhode Island Supreme Court considered the totality of the circumstance and found that, despite the failure of the trial court to advise Thornton of the pitfalls of self-representation, the petitioner nonetheless made his decision to proceed pro se knowingly and intelligently, with his eyes wide open. U.S. Supreme Court precedent, in particular, Faretta, supra, never required that the trial court conduct an on the record colloquy to demonstrate that a defendant has knowingly and intelligently relinquished his right to counsel.

Moreover, the Court of Appeals for the First Circuit has found that an explicit on the record warning need not always be given to a defendant to demonstrate that he has knowingly and intelligently waived his right to counsel. Maynard v. Meachum, 545 F.2d 273, 278-279 (1st Cir. 1976). For a waiver of counsel to be knowing and intelligent, a defendant must have

a sense of the magnitude of the undertaking and the disadvantages of self representation: an awareness that there are technical rules governing the conduct of a trial, and that presenting a defense is not a simple matter of telling one's story. In addition, the accused should have an appreciation of the seriousness of the charge and of the penalties. . . . 545 F.2d at 279 (internal citations omitted).

The Court of Appeals for the First Circuit has approved of the analysis used by the Rhode Island Supreme Court in determining whether a waiver of counsel was knowing and intelligent. See United States v. Benefield, 942 F.2d 60, 64-66. It is enough that the state supreme court considered the circumstances surrounding the defendant's case to find the petitioner's waiver knowing and intelligent. Id.; Maynard, 545 F.2d at 278; See also United States v. Kneeland, 148 F.3d 6, 12 (1st Cir. 1998) (record supports intelligent waiver where the record as a whole demonstrates a defendant was fully aware of the disadvantages of self representation); United States v. LaBare, 191 F.3d 60, 67-68 (1st Cir. 1999) (defendant who sat through prior criminal trials of his own has to know that trying a case is complex; if he thereafter decides to represent himself, the decision is knowingly, made with his eyes wide open); United States v. Campbell, 874 F.2d 838, 845 (1st Cir. 1989) (the validity of a waiver of counsel should be based upon the totality of the circumstances; the court must look to the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused).

Here, the Rhode Island Supreme Court considered all aspects of the petitioner's case in determining that his waiver of counsel was knowing and intelligent. This ruling can not be said to be an "unreasonable application" of Supreme Court precedent when the decision is on par with that of the Court of Appeals for the First Circuit. Accordingly, this ground fails to provide a basis for federal habeas relief.

C. Whether the Trial Judge Interfered with Petitioner's Sixth Amendment Right to Represent Himself by (1) Requiring the Petitioner to Participate in Sidebar Bench Conferences in Handcuffs or Not at All; and (2) Flatly Refusing to Permit the Petitioner from Participating in Sidebar Conferences Conducted During the Jury Voir Dire.

In Petitioner's second ground for habeas relief, he asserts that the trial court interfered with his Sixth Amendment right to represent himself by requiring him to participate in sidebar bench conferences during the trial in handcuffs or not at all, and by flatly refusing to permit him to participate in sidebar conferences conducted during the jury voir dire.

The state supreme court correctly identified the controlling U.S. Supreme Court precedents, here Faretta v. California, 422 U.S. 806, and McKaskle v. Wiggins, 465 U.S. 168 (1984). Thus, the state court's determination was not "contrary to" Supreme Court precedent. This court's chore is to determine whether the state court's decision was an "unreasonable application" of Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).

In Faretta, the Supreme Court found that the Sixth Amendment guarantees an accused "personally the right to make his defense," recognizing in doing so it is "[t]he defendant, and not his lawyer or the State, [who] bear[s] the personal consequences of a conviction." Faretta, 422 U.S. at 817.

The language and the spirit of the Sixth Amendment contemplate that counsel . . . shall be an aid to a willing defendant — not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the amendment insists. Id. at 820.

In McKaskle v. Wiggins, 465 U.S. 168, the Supreme Court further articulated guideposts that should be followed to assure a pro se defendant's rights recognized in Faretta are vindicated.

First, the pro se defendant is entitled to preserve actual control over the case he chooses to represent to the jury. This is the core Faretta right.

Second, participation by standby counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself. The defendant's appearance in the status of one conducting his own defense is important in a criminal trial, since the right to appear pro se exists to affirm the accused's individual dignity and autonomy. Id. at 178.

1. Trial Sidebar Conferences

Here, the Rhode Island Supreme Court found that the trial judge had placed the reasonable restriction of attending sidebar conferences in handcuffs on the petitioner, considering (1) the violent nature of the charges, (2) the petitioner's extensive criminal background involving crimes of violence, and (3) petitioner's disruptive conduct at many pre-trial proceedings. The state supreme court found that the restriction of requiring the petitioner to wear handcuffs if he chose to participate in sidebars reasonable. At no other times during the trial was Thornton required to wear handcuffs while representing himself pro se. The state court found that the petitioner's choice not to attend sidebar conferences in handcuffs, and rather, allowing his standby counsel to participate, did not erode his Sixth Amendment rights to represent himself as set forth in McKaskle.

The Sixth Amendment requires that a pro se defendant "be allowed to control the organization and content of his own defense. . . ." McKaskle, 465 U.S. at 174. However, a defendant's invitation to counsel to participate in the trial destroys any claim that the participation in question deprived the defendant control over his own defense. "[A] pro se defendant's solicitation of or acquiescence in certain types of participation by counsel substantially undermines later protestations that counsel interfered unacceptably." Id. at 182.

Here, there is no dispute that the trial court afforded Thornton the option of participating in sidebar conferences during the trial with handcuffs or allowing his standby counsel to participate. Thornton controlled the perception presented to the jury since he chose to have standby counsel attend these sidebar conferences. No Sixth Amendment right was eroded by the defendant's own decision to have his standby counsel participate in the sidebar conferences. Accordingly, the state court's decision was not unreasonable.

2. Voir Dire Side Bar Conferences

Thornton also complains that the trial judge's flat out bar on his participation in jury voir dire sidebar bench conferences violated his Sixth Amendment rights. However, the state supreme court found that the record failed to indicate that there "had in fact been any sidebar bench conferences that had taken place during the jury voir dire proceedings." Thornton, 800 A.2d at 1031. Pursuant to AEDPA, a state court's factual determinations are presumed to be correct unless the petitioner can show by clear and convincing evidence that this is not so. 28 U.S.C. § 2254(e)(1); Rashad v. Walsh, 300 F.3d 29, 39 n. 8 (even if a federal court could have drawn different factual inferences . . . where a state court did not do so, the AEDPA requires that federal courts abide by the factual choices made by the state court). Since the state supreme court found that there was no evidence of sidebar bench conferences during jury voir dire, petitioner's claim lacks any factual basis. Accordingly, this claim fails to provide a ground for federal habeas relief.

D. Whether the Trial Judge Impaired Petitioner's Sixth Amendment Right to Self Representation by Excluding the Pro Se Petitioner from All In-Chambers Conferences.

Petitioner's third ground for habeas relief concerns the trial judge's exclusion of the petitioner from six in-chambers conference that occurred. In addressing this issue on his direct appeal, the state supreme court, invoking the U.S. Supreme Court case of Snyder v. Massachusetts, 291 U.S. 97 (1934), found no Fourteenth Amendment violation. However, the federal claim presented to the state supreme court was not framed in the context of a Fourteenth Amendment due process violation. Rather, in his direct appeal, the petitioner framed the issue as an impairment of his Sixth Amendment right to self-representation. The state supreme court missed the mark.

Since this claim was presented to the state supreme court but not adjudicated on the merits by that tribunal, the standard set forth by AEDPA is not applicable. Dibenedetto v. Hall, 272 F.3d 1, 6 (1st Cir. 2001); Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001). Rather, this court must conduct a de novo review as to this issue only. Id.

As noted above, the Sixth Amendment guarantees an accused "personally the right to make his defense." Faretta, 422 U.S. at 817. To thrust counsel on an unwilling defendant violates that amendment. To determine whether a pro se defendant's sixth amendment rights are violated when counsel participates, the Supreme Court has articulated a two part analysis:

First, the pro se defendant is entitled to preserve actual control over the case he chooses to represent to the jury.

Second, participation by standby counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself. Id. at 178.

However, participation by standby counsel outside the presence of the jury engages only the first part of the analysis. McKaskle, 465 U.S. at 178. Faretta rights are adequately vindicated in proceedings outside the presence of the jury if the pro se defendant is allowed to address the court freely on his own behalf and if disagreements between counsel and the pro se defendant are resoled in the defendant's favor whenever the matter is one that would normally be left to the discretion of counsel. Id. The court, however, must keep in mind that "[t]he primary focus must be on whether the defendant had a fair chance to represent his case in his own way." Id. at 176.

Here, there were six in chambers conferences where the trial judge excluded the pro se defendant, with the first five occurring before the trial began. The first chambers conference concerned Thornton's request to hire an expert witness. The second chambers conference concerned Thornton's motion to preform various medical tests and to set deadlines for those test to be completed. The third chambers conference was initiated by the trial justice for the sole purpose of informing the parties that he would permit the defendant's expert witness to testify. These three conferences were resolved all in Thornton's favor, despite the fact the trial judge excluded the pro se plaintiff from these conferences.

The fourth chambers conference concerned a request by Thornton to be furnished with all other previous criminal trial transcripts in which Thornton had been a defendant, at the state's expense. None of the witnesses in the prior trials were expected to be called in Thornton's upcoming trial. The trial justice denied Thornton's request, without Thornton present to argue or present his point of view.

The fifth chambers conference occurred during voir dire when a prospective juror indicated that he could not be impartial. During the chambers conference held without Thornton, this juror, who was biased against Thornton, was excused.

The sixth chambers conference occurred during the trial. During the trial, one of the jurors notified the trial judge that he had realized that he was acquainted with the defense's expert witness. The trial justice questioned the juror in chambers and in the presence of the prosecutor and standby counsel. The prosecutor, standby counsel, and trial judge agreed that the juror could remain impartial and was permitted to remain on the jury. Thornton however was not present at the chambers conference and could not present his views. Thornton was advised after the fact of what had transpired at the chambers conference by standby counsel, after the decision to allow the juror to remain had already been made by the trial judge.

Here, there is no dispute that the trial judge flatly barred the petitioner from the above mentioned chambers conferences. It is also undisputed that standby counsel represented the petitioner's interest at these chambers conference. It is also undisputed that the trial judge made his rulings concerning the substance of the chambers conferences without receiving any input from the pro se defendant, despite the teachings of McKaskle. The McKaskle Court specifically found that where, as here, standby counsel speaks "instead of the defendant on an matter of importance, the Faretta right is eroded." 465 U.S. at 178. The trial judge did not hear the pro se defendant's voice, who was acting as his own lawyer. Standby counsel is just that — standby counsel. The trial judge conducted discussions regarding the defendant's trial outside the presence of the person Faretta and McKaskle instruct must retain actual control over the pro se defense. The trial judge's wholesale prohibition of the petitioner from these chambers conferences eroded the petitioner's Sixth Amendment rights. Erode, however, is not a synonym for violate.

Standby counsel did not "represent" Thornton, and the trial judge erred in not permitting Thornton to make his own arguments and express his views at these chambers conferences. However, these minor incursions, albeit regrettable, did not amount to a violation of the petitioner's Sixth Amendment rights. First, Thornton does not contend that his standby counsel took any action that was not authorized. Second, McKaskle held that Faretta did not contemplate an absolute bar on participation by standby counsel. McKaskle, 465 U.S. at 176-180. Rather, the "primary focus must be on whether the defendant had a fair chance to present his case in his own way." Id. at 176.

Here, Thornton certainly had a fair chance to present his case in his own way. The record demonstrates that Thornton made his own opening and closing statements, examined and cross examined witnesses, and planned and pursued his own defense. Thornton successfully moved for judgement of acquittal of the breaking and entering charge, and he was able to convince the jury to acquit him of first degree sexual assault, assault with a dangerous weapon in a dwelling house, assault with intent to murder, and kidnaping his daughter charges. Thus, there is no indication that in the context of the trial as a whole, Thornton did not control and guide his defense. See United States v. Mills, 895 F.2d 897, 904 (2nd Cir. 1990) cert. denied 495 U.S. 951 (1990) (record as a whole demonstrates defendant guided and controlled his own defense despite minor incursions of his Sixth Amendment right to self representation). Accordingly, petitioner's Sixth Amendment rights were not violated.

E. Whether Petitioner's Sixth Amendment Rights Were Violated by the Trial Judge's Exclusion of a Witness's Testimony.

Petitioner, as his fourth ground for relief, claims that his Sixth Amendment rights were compromised when the trial judge prohibited him from presenting the testimony of a police officer in support of his diminished capacity defense. Thornton attempted to establish at trial that he was so influenced by cocaine that he was unable to form the specific intent necessary to convict him of those crimes which required a specific intent.

In analyzing this claim, the state supreme court found no Sixth Amendment violation. Although that court did not recite the chapter and verse of the supporting U.S. Supreme Court case law, the state court rather found that based on state law precedent, specifically, State v. Malone, 568 A.2d 1378 (R.I. 1990), that no Sixth Amendment right was infringed. After a review of Malone and the authorities cited therein, it is clear that Malone is consistent with controlling U.S. Supreme Court precedent. See e.g. United States v. Scheffer, 523 U.S. 303 (1998), Rock v. Arkansas, 483 U.S. 44 (1987). Thus, the state court decision is not contrary to controlling supreme court precedent. Early v. Packer, 123 S.Ct. 363, 364 (2002) (state court decision is not contrary to controlling precedents simply because it fails to cite Supreme Court decisions, or, because the state court was unaware of controlling precedent, "so long as neither the reasoning nor the result contradicts them.") Thus, this court must determine whether the state court's application was "unreasonable."

The right to offer testimony is grounded in the Sixth Amendment. Taylor v. Illinois, 484 U.S. 400, 408-409 (1988). Criminal defendants generally have the right to present "competent, reliable . . . evidence." Crane v. Kentucky, 476 U.S. 683, 690 (1986). A defendant's right to present evidence "is not unlimited, but rather, subject to reasonable restrictions." Scheffer, 523 U.S. at 308. A defendant's interest in presenting such evidence may "bow to accommodate other legitimate interests in the criminal trial process." Rock v. Arkansas, 483 U.S. at 55. As a result, state and federal rule makers have a broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Scheffer, 523 U.S. at 307.

During cross examination of the state's witnesses, Thornton attempted to demonstrate that his behavior on June 18 was consistent with being "high" and that he only returned to a coherent state after the effects of the drugs had dissipated. During the state's case in chief, Thornton extensively cross examined Sgt. Little, who, along with Officer Owens, served as a negotiator with Thornton during the standoff. During the course of the standoff, Sgt. Little had engaged in over forty conversations with Thornton. Officer Owens, who arrived later on the scene, assumed the role of lead negotiator, but she and Sgt. Little had acted jointly throughout the standoff. Both had an opportunity to observe Thornton.

At trial, Thornton attempted to call Officer Owens as a witness, explaining that Officer Owens had "more time to develop [an] opinion" of Thornton. Thornton, 800 A.2d at 1039. The state objected that Officer Owens' testimony would be cumulative and that Officer Owens should not be permitted to offer lay testimony as to Thornton's state of mind. The trial judge agreed and found that the proposed testimony was cumulative and Officer Owens' lay opinion inadmissible.

Here, the state court excluded the testimony of Officer Owens who was called to describe the events that had already been established. A number of witnesses had already testified with respect to such events. Such an exclusion of Officer Owens's cumulative testimony is entirely consistent with Supreme Court precedent. See e.g. Dolinger v. Hall, 302 F.3d 5, 11-12 (1st Cir. 2002); Lujan v. Tansy, 2 F.3d 1031 (10th Cir. 1993). A criminal defendant has no right to offer testimony that is cumulative. Accordingly, the Rhode Island Supreme Court's decision is not an "unreasonable application" of controlling Supreme Court precedent. Thus, this ground fails to sustain petitioner's claim for federal habeas relief.

F. Whether the Trial Judge Improperly Allowed the Petitioner's Prior Bad Acts to Be Used to Impeach the Defense's Expert Witness, in Violation of the Rhode Island Rules of Evidence.

As his fifth claim for federal habeas relief, the petitioner contends that the state trial court improperly allowed his prior criminal record to be used to impeach the defense's expert witness. Petitioner contends here, as he did in the state supreme court, that the trial justice violated the Rhode Island Rules of Evidence. The state supreme court rejected his contentions.

The factual basis for this claim rests upon the testimony of Thornton's expert witness, Dr. Stewart. In the cross examination, the trial justice permitted the state to test Dr. Stewart's opinion by inquiring into the background of the petitioner. Dr. Stewart acknowledged that his opinion was based upon two interviews conducted with the petitioner, and that the petitioner failed to inform Dr. Stewart of the petitioner's prior bad acts, specifically Thornton's past history of violent domestic assaults. When Thornton objected to the inquiry, the trial judge allowed it and provided the jury with a cautionary instruction. Moreover, the petitioner himself opened the door to such testimony since he had elicited testimony of his past violent behavior from the victim, Debra, in his pro se cross examination of her.

The state supreme court found that such an inquiry was permissible under the Rhode Island Rules of Evidence because it was used to test the credibility of the defense's expert. Moreover, the state supreme court found that the trial court adequately gave a cautionary instruction to the jury.

Here, the petitioner can not receive an independent review of state law issues. That is a matter of discretion for the state courts. The petitioner, in this federal habeas petition, is limited to claims that are of a constitutional dimension. See 28 U.S.C. § 2254(a). "[T]he writ of habeas corpus ordinarily will not rise solely to correct alleged errors in evidentiary rulings." Lisenba v. California, 314 U.S. 219, 228 (1941). To rise to a constitutional dimension, such an error must infuse the trial with inflammatory prejudice as to render a fair trial impossible. Salemme v. Ristaino, 587 F.2d 81, 86 (1st Cir. 1978); Allen v. Snow, 635 F.2d 12, 15 (1st Cir. 1980). However, if the trial court gives a cautionary instruction, such instructions are deemed to cure any prejudice resulting from the jury's exposure to the challenged testimony. Allen, 635 F.2d at 15; United States v. Carillo, 565 F.2d 1323, 1236 (1st Cir. 1978).

Here, petitioner's fifth ground for habeas relief is without merit since it fails to present issues of a constitutional dimension. This court does not sit as a super appellate court on issues of state law. Moreover, the trial justice gave a cautionary instruction which would have cured any alleged improper testimony. This ground fails to sustain a claim for federal habeas relief.

G. Whether the Trial Judge Erroneously Denied Petitioner's Motion to Reduce His Sentence.

As his final ground for habeas relief, petitioner contends the trial judge erroneously denied his motion to reduce his sentence. Petitioner does not dispute that his sentence is within the statutory parameters enacted by the Rhode Island General Assembly. Rather, petitioner contends that the trial court should have shown discretion and imposed the sentences concurrently, instead of consecutively.

However, this issue is a matter of state law and no constitutional violation is implicated. See 28 U.S.C. § 2254(a) (Court may entertain an application for a writ of habeas corpus only on the ground that the petitioner is in custody in violation of the Constitution or laws or treaties of the United States). As long as the sentences imposed were within the state statutory limits, no federal constitutional issue are presented. Townsend v. Burke, 334 U.S. 736, 740 (1948); United States ex rel. v. Pate, 418 F.2d 1028, 1031 (7th Cir. 1970). Accordingly, this ground fails to qualify for federal habeas relief.

Conclusion

For the reasons set forth above, I recommend that the petitioner's writ of habeas corpus be denied and dismissed. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).

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