Humphrey v. Cunningham, 89-403

• Decision Date: 28 December 1990
• Docket Number: No. 89-403,89-403
• Citation: 584 A.2d 763,133 N.H. 727
• Parties: Edward D. HUMPHREY, Sr. v. Michael CUNNINGHAM, Warden, The New Hampshire State Prison.
• Court: New Hampshire Supreme Court

Page 763

584 A.2d 763

133 N.H. 727

Edward D. HUMPHREY, Sr. v. Michael CUNNINGHAM, Warden, The New Hampshire State Prison.

No. 89-403.

Supreme Court of New Hampshire.

Dec. 28, 1990.

Murphy, McLaughlin & Hemeon, Laconia (James M. Carroll on the brief and orally), for petitioner.

John P. Arnold, Atty. Gen. (Jeffrey W. Spencer, Attorney, on the brief, and Monica Ciolfi, Asst. Atty. Gen., orally), for respondent.

BATCHELDER, Justice.

The petitioner, Edward D. Humphrey, Sr., was convicted of armed robbery and sentenced to seven and one-half to fifteen years in the State Prison. His conviction was affirmed on appeal. State v. Humphrey, 129 N.H. 654, 531 A.2d 329 (1987). He subsequently filed a petition for writ of habeas corpus, claiming that he was denied his right to the effective assistance of counsel by his counsel's failure to file a motion to dismiss for lack of speedy trial based upon an approximately sixteen-month delay between the date of his indictment for armed robbery and the date he received notice of the indictment. The petitioner maintained that this delay caused him actual prejudice, because it resulted in the loss of two alibi witnesses and a photographic array, as well as the dimming of all witnesses' memories. The Superior Court (Pappagianis, J.) dismissed his petition after a hearing held on March 31, 1989. It ruled that the petitioner did not suffer any prejudice, because a motion to dismiss on speedy trial grounds would have been unsuccessful and, therefore, there was no need to determine whether the petitioner's counsel was reasonably competent. On appeal, the petitioner argues that the court erred in ruling that he did not demonstrate actual prejudice as part of his ineffective assistance of counsel claim. He also asserts that the court erred in failing to rule that the approximately sixteen-month delay amounted to presumptive prejudice, thereby requiring an analysis as to whether his counsel was reasonably competent. We affirm.

The following facts are relevant to our determination of the issues presented by the petitioner. On November 1, 1983, the petitioner escaped from the State Prison, where he was serving an earlier sentence for an armed robbery committed in Nashua. He spent the night of November 1st and early morning of November 2nd in Natick, Massachusetts, with a woman named Lisa Quieros. At 8:30 a.m. on the morning of November 2nd, a Natick police officer on foot patrol recognized either the petitioner, who was with Quieros at the time, or the car the petitioner was driving, a Plymouth Barracuda that had been stolen in Nashua, and attempted to stop him. The petitioner, however, completely eluded the officer. That evening at approximately 7:30 p.m., an unmasked man carrying a sawed-off shotgun robbed Bergeron's Arco Station in Nashua. A more complete statement of facts regarding the robbery is found in State v. Humphrey, 129 N.H. 654, 531 A.2d 329.

At 10:21 p.m., the petitioner registered at a Holiday Inn in Providence, Rhode Island. He checked out the next day, November 3, 1983, at 4:37 p.m., and was arrested later that day for the armed robbery of a Providence liquor store. The "Barracuda," which was involved in the Nashua robbery, was found in a parking lot near the Providence liquor store with a sawed-off shotgun inside it. The petitioner pled guilty to the Providence robbery on April 10, 1984, after having been indicted for the second Nashua robbery on January 3, 1984. He testified during the hearing held on his petition for writ of habeas corpus that he was first notified of the Nashua robbery charge in April or May of 1985, when an exemplified capias was sent by the New Hampshire authorities to the Rhode Island authorities. The capias was issued on April 30, 1985, and an interstate detainer was filed on July 8, 1985.

At his trial for the second Nashua robbery, held on February 19 and 20, 1986, the petitioner attempted to show that he was not in Nashua at 7:30 p.m. on November 2, 1983, the time of the robbery. Jeff Oehley, a friend of the petitioner, testified that he saw him in Massachusetts one evening in November of 1983, and that the petitioner left before 9:00 p.m. for Rhode Island. The petitioner's sister, Beth Crawford, testified that the petitioner visited her at her home in Massachusetts sometime in late October or early November, after dinnertime. She stated that he stayed forty-five minutes to one hour and then told her he was going to Rhode Island. Neither Oehley nor Crawford could remember the date they had seen the petitioner. The petitioner unsuccessfully tried to locate Quieros and a bartender with whom he claims he was drinking and playing pool on the night of November 2, 1983. According to the petitioner's trial counsel, who testified at the March 31, 1989 hearing, Quieros's testimony might have been prejudicial to the petitioner's defense, in that she could have testified that there was a sawed-off shotgun in the "Barracuda" that the Natick police officer saw the petitioner driving on the morning of November 2, 1983, thus providing a link between the petitioner and the Nashua robbery.

The State, on the other hand, presented evidence that two eyewitnesses to the second Nashua robbery, Richard Bergeron and his co-worker, Gary Bathalon, had identified the petitioner as the robber from two photographic arrays. The first array of six photographs contained an older photograph of the petitioner taken when he had longer hair and a mustache. Bergeron and Bathalon separately chose the petitioner's photograph and said that they were seventy percent certain that he was the robber. Two days later, they were shown a second array of five photographs, including a photograph taken of the petitioner after he was arrested for the Providence robbery, in which he had shorter hair and no mustache. They again selected the petitioner's photograph, this time stating that they were one hundred percent certain that he was the robber. The police did not preserve the first photographic array. During trial, the petitioner made an oral motion to dismiss the case for failure to preserve the first array, which he argued constituted potentially exculpatory evidence. The trial court denied the petitioner's motion, and the petitioner appealed its decision. We did not address this issue because it was not briefed by the petitioner. See Stewart v. Cunningham, Warden, 131 N.H. 68, 71, 550 A.2d 96, 98 (1988).

Before we analyze the petitioner's arguments, there are two preliminary procedural issues raised by the State which should be addressed. Although the State did not raise this issue in its brief, it asserted at oral argument that the petitioner's ineffective assistance of counsel claim should be denied, because it could have been raised as part of the petitioner's direct appeal of his armed robbery conviction. A petitioner, however, may collaterally attack a proceeding by filing a petition for writ of habeas corpus after the time for a direct appeal has expired, if he can establish a harmful constitutional error. Bussiere v. Cunningham, Warden, 132 N.H. 747, ----, 571 A.2d 908, 910 (1990). We therefore reject the State's argument that the petitioner's ineffective assistance of counsel claim should be summarily denied.

Second, the State contends that the alleged prejudice to the petitioner caused by the loss of the first photographic array should not be considered in evaluating the petitioner's argument that his trial counsel's failure to file a motion to dismiss on speedy trial grounds deprived him of his right to the effective assistance of counsel. It argues that this issue may not be raised in the present appeal, because the petitioner presented the issue of the loss of the photographic array in the notice of appeal filed during his direct appeal. In support of its position, the State cites Grote v. Powell, Commissioner, 132 N.H. 96, 562 A.2d 152 (1989). The issue previously appealed by the petitioner, as stated in the notice of appeal, was "[w]hether the Court erred by denying the oral motion to dismiss for failure to preserve potentially exculpatory evidence [i.e., the first photographic array]." The petitioner, however, waived this issue by not briefing it. See Stewart v. Cunningham, Warden, 131 N.H. at 71, 550 A.2d at 98.

In Grote v. Powell, Commissioner, supra, we stated that we would not consider an issue raised "under the guise of an ineffective assistance of counsel claim" that we had previously considered as part of a petitioner's original appeal. Id. 132 N.H. at 100-01, 562 A.2d at 154-55. The petitioner in Grote, after appealing the trial court's decision to admit certain evidence at trial, subsequently filed a petition for writ of habeas corpus in which he argued that the admission of this evidence contributed to his trial counsel's ineffective assistance. Id. at 100, 562 A.2d at 154. Grote is distinguishable from the present case in that, during the direct appeal of his armed robbery conviction, we never addressed the issue of prejudice to Humphrey caused by the loss of the photographic array. This issue was not, therefore, fully litigated on appeal. Moreover, the issue of prejudice due to the loss of the photographic array, which the petitioner waived during his direct appeal, is not the precise issue raised by the petitioner in the context of his ineffective assistance of counsel claim; namely, whether a motion to dismiss on speedy trial grounds would have been successful. Rather, it is an issue which arises simply because one of the factors in the speedy trial analysis happens to be the prejudice to the defendant caused by the pretrial delay. See State v. Tucker, 132 N.H. 31, 32, 561 A.2d 1075, 1077 (1989).

Thus, the petitioner, by arguing that he was denied his right to a speedy trial in part because the loss of the photographic array prejudiced his defense, does not appear to be circumventing the appellate process. Because the issue of prejudice due...