Norton v. Spencer
| Decision Date | 25 March 2003 |
| Docket Number | No. CIV.A.01-30070-MAP.,CIV.A.01-30070-MAP. |
| Parties | Roger NORTON, Petitioner v. Luis S. SPENCER, Respondent |
| Court | U.S. District Court — District of Massachusetts |
Stewart T. Graham, Jr., Hampden, MA, for Roger Norton.
Roger Norton, Gardner, MA, pro Se
William J. Meade, Dean A Mazzone, Attorney General's Office, Boston, MA, for Luis S. Spencer, Respondent.
MEMORANDUM REGARDING PETTIONER'S FOR WRIT OF HABEAS CORPUS AND RESPONDENT'S MOTION TO DISMISS (Docket Nos. 1,20)
Habeas corpus petitioner Roger Norton ("Norton" or "petitioner") argues that he has been wrongly imprisoned following his conviction on four counts of indecent assault and battery on a person under the age of fourteen. His arguments can be divided into two categories: (1) that the prosecution's failure to disclose exculpatory evidence violated his rights as set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (2) that the prosecution's failure to provide a bill of particulars violated his right to due process. The respondent has moved to dismiss the petition pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254.
As will be seen below, the Commonwealth's apparent failure to provide petitioner crucial exculpatory evidence at his trial clearly violated petitioner's rights as established by Brady. Indeed, the apparent concealment of crucial evidence raises serious questions regarding the integrity of the jury verdict. For these reasons, the court will deny respondent's Motion to Dismiss and will allow the petition unless the respondent requests an evidentiary hearing.
All the events leading to the petitioner's conviction for indecent assault and battery on a person under the age of fourteen allegedly occurred sometime in 1989. At trial, the petitioner was accused of having, on several occasions, sexually assaulted Hector Fuentes ("Fuentes"), then eleven years old. The assaults were said to have occurred at the home of Fuentes' cousin, Jose Colon ("Colon"), and at a trailer park called Sunledge Campground ("Sunledge").
As the facts emerged at trial, Fuentes and petitioner first met at Colon's house, where both were staying as guests, in or around June 1989. During his testimony, Fuentes could not pinpoint the date of this first meeting, although he remembered that it occurred while his mother was in the hospital having a baby.
Fuentes testified that, at some point soon after the two had met, the petitioner approached Fuentes from behind, put his hands on Fuentes' buttocks, picked him up, and said, "This is my boy." (Docket 29, at 3). Fuentes testified further that the petitioner would not put him down despite Fuentes' requests to do so.
The following morning, Fuentes recounted, the petitioner jumped into bed with Fuentes, grabbing Fuentes' genitalia "real hard." Id. Fuentes claimed that he immediately left the bedroom, but did not tell anyone what had happened because he was afraid.
Later that summer, Fuentes and his mother resided in a trailer at Sunledge. At that time, the petitioner was also a Sunledge resident.
Fuentes testified at trial that, on one occasion when he went to the petitioner's trailer to retrieve a kite, the petitioner, who was unclothed, pushed Fuentes onto his bed, touched Fuentes' genitalia, and told Fuentes that he wanted to have sex.
Fuentes did not give the petitioner permission to touch him in this manner. He was apparently able to escape Norton without further assault.
At another time that summer, Fuentes testified, the petitioner tackled Fuentes during a game of football. Fuentes testified that, as the two lay on the ground, the petitioner again grabbed and squeezed Fuentes' genitalia.
Fuentes also recounted that, sometime that summer, the petitioner offered Fuentes five dollars to have sex with him and asked Fuentes to go skinny-dipping with him. Fuentes did not accept either proposition.
The last time he saw the petitioner at Sunledge, Fuentes testified, was after discovering his younger cousin, Noel Rodriguez ("Noel"), crying inside the petitioner's camper. After Fuentes threatened to report the petitioner's conduct to Fuentes' parents, the petitioner reportedly expressed indifference. By the following morning, however, the petitioner had disappeared from the campground.
On or about August 16, 1989, Fuentes made a statement to the state police in which he described these alleged sexual assaults. At the same time, Noel also told police that he was indecently assaulted by petitioner.
The petitioner was arrested sometime within the next month.
On September 14, 1989, a Hampden County grand jury indicted the petitioner on six counts of indecent assault and battery on a child under the age of fourteen, five counts pertaining to the alleged assaults on Fuentes, the sixth pertaining to the alleged assault on Noel. The indictments did not specify the dates of the alleged assaults, only that they occurred prior to August 15, 1989.
Following a pretrial hearing in Massachusetts Superior Court, the trial judge ruled that Noel was not competent to testify at trial. At the hearing, Noel had refused to answer any questions regarding the area of his body where the petitioner had allegedly touched him. Subsequently, the Commonwealth of Massachusetts ("Commonwealth") chose not proceed on the indictment pertaining to Noel, but continued to prosecute the other five indictments pertaining to Fuentes.
At some point, the petitioner filed a motion for a bill of particulars in order to narrow the time period for the alleged assaults. The Commonwealth responded that the incidents occurred sometime in 1988 and 1989.
As there were no other eyewitnesses to any of the alleged assaults, Fuentes was the only person to testify to these incidents at trial. Although Fuentes' testimony did not pinpoint dates for the alleged assaults, the prosecutor later confirmed that they likely occurred in the latter half of 1989, around the time when Fuentes' mother was in the hospital having a child.
On or about August 18, 1992, the petitioner was convicted on four counts of indecent assault and battery on a child under the age of fourteen. The trial judge directed a verdict of not guilty on the fifth count.
The petitioner was sentenced to the following terms of incarceration in state prison: a term of eight to ten years on indictment number 89-5635; a consecutive term of eight to ten years on indictment number 89-5636; a term of three to five years on indictment 89-5634, concurrent with the sentence imposed for indictment 89-5635; and a term of three to five years on indictment 89-5638, consecutive to the sentence imposed for indictment 89-5636.
On September 28, 1992, the petitioner filed a timely notice of appeal.
On May 14, 1996, the Massachusetts Appeals Court affirmed the conviction in Commonwealth v. Norton, 40 Mass.App. Ct. 1121, 664 N.E.2d 883 (1996). On July 9, 1996, the Massachusetts Supreme Judicial Court ("SJC") denied the petitioner's application for leave to obtain further appellate review in Commonwealth v. Norton, 423 Mass. 1103, 667 N.E.2d 1159 (1996).
At some point after 1996 the petitioner made two discoveries that he argued constituted "new evidence" within the meaning of 28 U.S.C. § 2245(d)(1)(D).
First, the petitioner found the birth certificate of Fuentes' new sibling, who was born on June 7, 1989. Upon seeing this birth certificate, various members of the Colon household provided affidavits in which they denied that Fuentes had stayed with them during the period surrounding June 7, 1989, as he had stated at trial.
Second, the petitioner asserted that Noel and Noel's mother, Maria Sonia Rodriguez ("Rodriguez"), had told the prosecutor prior to trial that (1) Noel had fabricated his allegations against the petitioner at the insistence of Fuentes, (2) the petitioner had actually done nothing to Noel, and (3) Fuentes had also fabricated his allegations.
Petitioner obtained an affidavit from Noel, in which Noel stated:
I made up the story against [the petitioner] because my cousin Hector [Fuentes] told me to. Hector told me that he had made up a story about [the petitioner] and Hector told me that I had to say that [the petitioner] had done the same things to me. I was not indecently assaulted by Roger Norton. I made up the story at Hector's insistence.
The petitioner also obtained an affidavit from Rodriguez, which stated, in relevant part:
During [Fuentes'] childhood, he was a hyperactive child and needed to be medicated to control his hypertension [sic]. I also know that [Fuentes] was a habitual liar and often times ... stole money from his parents.
Because of [Fuentes'] character traits of lying and stealing, my brother in law and sister Rubin and Maria Colon never allowed [him] to stay at their house without one of his parents being present.
. . . . .
Noel ... told me that Roger Norton [petitioner] had not touched him or assaulted him and Noel told me he made up the story against [petitioner] because his cousin Hector Fuentes told him to do it. Noel told me that Hector made up the story about [petitioner] and [Fuentes] told Noel that he had to say that [petitioner] had done the same things to him. Noel has told me that he was not indecently assaulted by Roger Norton and Noel made up the story at [Fuentes'] insistence.
(Docket 10, Ex. 5). Rodriguez added that she saw the Assistant District Attorney Susan Loehn and another person named Rivera "repeatedly tell Noel and [Fuentes] exactly what they had to testify to, even after ... Noel told them that none of it was true, that [Fuentes] had made it all up." Id.
It is undisputed that the prosecutor never provided the petitioner with the information contained in the Noel and Rodriguez affidavits.
Petitioner brought this evidence before the state court and moved...
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