Berthel v. New Hampshire, CIV. 99-533-B.
| Decision Date | 04 December 2000 |
| Docket Number | No. CIV. 99-533-B.,CIV. 99-533-B. |
| Citation | 122 F.Supp.2d 247 |
| Parties | Glen C. BERTHEL v. State of NEW HAMPSHIRE |
| Court | U.S. District Court — District of New Hampshire |
Glen C. Berthel, Concord, NH, Pro se.
Ann M. Rice, Attorney General's Office, Concord, NH, for Respondent.
Petitioner Glen Berthel, pro se, is currently serving an eighteen-year to life sentence in the New Hampshire State Prison for second degree murder. He has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his trial counsel were ineffective.
Berthel's primary arguments are that his trial counsel: (1) improperly introduced the results of a blood alcohol test at trial showing that he had a blood alcohol level of approximately .14 percent; (2) failed to inform the jury that an apple tree identified to the jury during the view was missing branches that would have prevented two of the state's witnesses from making certain observations they claimed to have made shortly before the murder; and (3) failed to object to certain statements made by the prosecutor during his closing argument.
Presently before me is the State of New Hampshire's motion for summary judgment (Doc. no. 11). For the following reasons, I grant the State's motion.
On the morning of June 18, 1994, Berthel injured his back while helping his parents-in-law install a window. After leaving his parents-in-law's home, Berthel and his wife went to the Joliette Snowshoe Club, a private drinking establishment in Berlin. They arrived at the Club at around 2:30 p.m. Berthel intended to have a few drinks to help him relax and to ease his back pain. Berthel consumed four beers and a shot of rum at the Club. Eddie McDonald joined the Berthels at their table at the Club and invited them to a cookout at his apartment.
Shortly thereafter, the Berthels left the Club and went to Eddie McDonald's cookout where Berthel drank another beer. Steve McDonald, the victim, arrived at the cookout wearing sexually suggestive attire. Berthel told McDonald that his attire was not appropriate because there were women and children at the party. In response, McDonald attacked Berthel, hitting him in the head repeatedly. After the initial fight, McDonald engaged in two more unprovoked physical attacks on Berthel.
Eddie McDonald ordered Berthel and Steve McDonald to leave the apartment. Berthel and his wife left the house and walked down the street to an adjacent parking lot where their car was parked. Because of his back injury, Berthel felt severe pain and shortness of breath. Therefore, he stood at his car trying to catch his breath. Berthel testified that he also watched Steve McDonald, who was still standing in front of the house, to keep an eye on him. After at least ten minutes had passed, McDonald came running toward Berthel yelling angrily. McDonald attacked Berthel when he reached the car, and Berthel retrieved a knife from his car and stabbed him, allegedly in self-defense. McDonald died a short time later. A blood alcohol test performed as part of the autopsy established that McDonald had a blood alcohol level of .25 percent, more than three times the legal limit for drivers.
Berlin Police Corporal Supry arrived at the scene at about 5:40 p.m. Supry observed that most of the people at the scene of the crime were intoxicated, including Berthel. He arrested Berthel shortly after his arrival. A blood alcohol test revealed that Berthel's blood alcohol level was approximately .14 percent.
Berthel stood trial in the Coos County Superior Court from April 11, 1995 to April 19, 1995, on alternative counts of knowing second degree murder and reckless second degree murder. Berthel's defense at trial was that he acted in self-defense. The jury convicted him of the reckless murder charge and acquitted him of the knowing murder charge. The New Hampshire Supreme Court summarily affirmed his conviction on December 20, 1996.
After unsuccessfully appealing his conviction, Berthel filed a pro se motion for a new trial in February 1998, raising the same three claims of ineffective assistance of counsel that he raises in this action. The trial court denied the motion. Berthel filed a motion to reconsider, and the trial court denied that motion, too. On May 18, 1998, Berthel filed a notice of appeal with the New Hampshire Supreme Court, which denied the appeal. Berthel filed a motion to reconsider, and that motion was also denied on March 26, 1999. Berthel then filed the instant petition.
In a habeas corpus proceeding, as in all civil actions, summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue is one "that properly can be resolved only by a finder of fact because [it] ... may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that affects the outcome of the suit. See id. at 248, 106 S.Ct. 2505.
In ruling on a motion for summary judgment, the court must construe the evidence in the light most favorable to the non-movant. See Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir.1988). The party moving for summary judgment, however, "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record]...which it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has properly supported its motion, the burden shifts to the nonmoving party to "produce evidence on which a reasonable finder of fact, under the appropriate proof burden, could base a verdict for it; if that party cannot produce such evidence, the motion must be granted." Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir.1996) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548).
I apply these standards in ruling on the State's motion for summary judgment.
To prevail on an ineffective assistance of counsel claim, a petitioner must make a two-part showing. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Scarpa v. DuBois, 38 F.3d 1, 8 (1st Cir.1994). First, he must establish that counsel's conduct was deficient, meaning that it was unreasonable under prevailing professional norms. See Strickland, 466 U.S. at 688-90, 104 S.Ct. 2052. This standard is difficult to meet because reviewing courts begin with the presumption "that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689, 104 S.Ct. 2052 (internal quotation marks and citation omitted). A petitioner must overcome this deferential presumption in order to meet the first part of the test. See id.
Second, a petitioner must show that counsel's asserted deficiencies resulted in actual prejudice. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Scarpa, 38 F.3d at 8. In other words, he must show that there is a reasonable probability that, but for counsel's conduct, the trial outcome would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Scarpa, 38 F.3d at 8-9. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
In reviewing an ineffective assistance of counsel claim, the court need not address both parts of the test if a petitioner cannot make a sufficient showing on one. See id. at 697, 104 S.Ct. 2052. Therefore, I can determine whether a petitioner suffered prejudice as a result of counsel's conduct without first examining whether counsel's performance was deficient. See id.
Berthel argues that his trial counsel were ineffective because they introduced the results of a blood alcohol test showing that he was intoxicated. Presumably, Berthel believes that this decision prejudiced his case because it may have caused the jury to conclude that he was guilty in part because he was intoxicated when he stabbed McDonald.
I reject Berthel's argument because his attorneys' decision to introduce the results of the blood alcohol test was a legitimate tactical judgment designed to bolster his self-defense claim. Berthel's defense strategy was to establish a reasonable doubt in the jurors' minds about whether McDonald was so out of control when he attacked Berthel that he reasonably caused Berthel to believe that his life was in danger. Toward that end, it benefitted Berthel to demonstrate that McDonald had a blood alcohol level of more than three times the legal limit for drivers when he was killed. It also was reasonable for counsel to place McDonald's blood alcohol level in its appropriate context by allowing the jury to learn that Berthel's blood alcohol level was significantly lower than McDonald's. If counsel had failed to introduce the results of Berthel's blood alcohol level, given the other evidence that Berthel had been drinking and was intoxicated, the jury might have mistakenly concluded that McDonald was no more intoxicated than Berthel. Counsel's decision to introduce the results of the blood alcohol test thus represents a legitimate tactical choice that cannot serve as the basis for an ineffective assistance of counsel claim.2
Two of the state's witnesses testified concerning observations that they made of Berthel shortly before the stabbing. Linda Cantu testified that she was standing in the vicinity of Eddie McDonald's porch when she saw Berthel leaning up against the passenger side of his car staring...
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