Olszewski v. Spencer

• Decision Date: 20 October 2006
• Docket Number: No. 05-1833.,05-1833.
• Citation: 466 F.3d 47
• Parties: Anthony OLSZEWSKI, III, Petitioner, Appellant, v. Luis SPENCER, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

466 F.3d 47

Anthony OLSZEWSKI, III, Petitioner, Appellant, v. Luis SPENCER, Respondent, Appellee.

No. 05-1833.

United States Court of Appeals, First Circuit.

Heard August 1, 2006.

Decided October 20, 2006.

David J. Nathanson for the appellant.

Cathryn A. Neaves, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for the appellee.

Before TORRUELLA, SELYA and DYK,^* Circuit Judges.

DYK, Circuit Judge.

This is a habeas case. The petitioner, Anthony Olszewski III ("Olszewski"), was convicted of first-degree murder in the Massachusetts state courts. He claims that his due process rights were violated when the Commonwealth permitted the destruction of exculpatory evidence prior to trial and made improper statements in closing arguments at trial. Olszewski also seeks relief on the grounds that he received ineffective assistance of counsel and that the trial court improperly dismissed a sitting juror based on ex parte communications. We conclude that none of these claims warrants habeas relief, and therefore affirm the district court's denial of the petition.

I.

Joanne Welch was murdered sometime between 7 and 9 P.M. on January 28, 1982. Olszewski and Welch had been involved in a romantic relationship that ended approximately one month before Welch's murder. Prior to the murder, Welch had begun dating another man, which upset Olszewski. On the day of the murder, several of Olszewski's friends heard Olszewski threaten to kill Welch. That same day, Welch told family members and coworkers that she planned to drive to Olszewski's house after work to retrieve her personal belongings and some money. She intended to return home for dinner and expected a call from her new boyfriend to arrange a date for the evening of January 28. Welch visited Olszewski's house and retrieved her belongings, but never returned home.

On January 29, 1982, on Great Plains Road in West Springfield, Massachusetts, the police located shoes and earrings belonging to Welch along with two teeth, a strip of chrome automobile trim, and a belt hanging from a tree. The police found Welch's body seven miles away. She had fractures to her jaw and pelvis, bruising, abrasions, and several missing teeth. The teeth found on Great Plains Road appeared to be Welch's. Welch's injuries were consistent with blows from a fist or foot and strangulation. On January 30, the police found Welch's car parked next to a Westfield, Massachusetts bowling alley. There was blood, hair, and fiber belonging to Welch in the car, and a strip of chrome trim was missing from the passenger side.

Olszewski admitted that Welch came to his house on January 28; his defense was alibi during the period of time that the murder was committed. He claimed that Welch left his house around 6:30 that evening, and that between 7 and 9 P.M.,¹ he was in the company of his friend, Philip Strong. Olszewski met other friends around 9 P.M.

On January 31, 1982, Strong provided the police with a written statement corroborating Olszewski's alibi. On February 15, 1982, the police questioned Strong a second time, and Strong admitted that the first statement was false. Contrary to established procedures, the police did not copy the first statement and left Strong alone with the only copy of the statement. Strong ripped it up and threw the pieces in the trash. Strong then provided the police with a second statement that stated that, on January 29, Olszewski told Strong that Olszewski had murdered Welch. The police did not attempt to retrieve the first statement until later that night when Officer Sypek looked in the trash for the pieces and found that the trash had already been emptied. The first statement was never recovered.

On February 12, 1983, Olszewski was convicted of Welch's murder based in large part on Strong's testimony. On direct appeal, the Massachusetts Supreme Judicial Court vacated the conviction and remanded the case based on the prosecution's use at trial of evidence that was lost or destroyed.² The Supreme Judicial Court instructed the trial court that on remand, under Commonwealth v. Willie, 400 Mass. 427, 510 N.E.2d 258 (1987), "[f]or each piece of missing evidence shown to be potentially exculpatory, the judge must weigh the culpability of the Commonwealth and its agents, the materiality of the evidence, and the potential prejudice to the defendant." Commonwealth v. Olszewski, 401 Mass. 749, 757, 519 N.E.2d 587, 592 (1988). It is unclear whether the Supreme Judicial Court's decision to vacate was based in part on the destruction of Strong's first statement. On the one hand, there is language in the opinion directing the trial court to consider the destruction of Strong's first statement on the remand. On the other hand, the Supreme Judicial Court concluded that "the defense counsel fully described to the jury the circumstances of the making and the destruction of Strong's first statement. The defense thoroughly cross-examined, and effectively impeached, Strong. The judge properly admitted Strong's testimony."

Nonetheless on remand the trial court considered the remand order as extending to the destruction of Strong's first statement. The trial court held a series of hearings and suppressed certain evidence on the ground that the state destroyed the predicate physical evidence.³ At the hearing the trial judge considered whether the destruction of Strong's first statement should be grounds for dismissing the indictment. The judge stated in his findings of fact:

I do not believe that Captain Sypek and Detective Zielinksi were so obtuse that they did not realize that the first statement had been destroyed until after Strong had given his second statement and left the station and until after the wastepaper basket in the conference room had been emptied. On the contrary, I strongly suspect that they deliberately left the statement on the conference room table and left the room in the hope that Strong would destroy the statement and give a new one.

Nonetheless, in finding that the indictment should not be dismissed, the trial judge ruled that, although the police were "incredibly foolish," he did "not believe it was done maliciously." Leaving Strong alone with his first statement "did not amount to a bad faith effort to deprive the defendant of exculpatory evidence." After "[w]eighing the culpability of the police against the materiality of the evidence and the potential prejudice to the defendant" under Massachusetts law, the court denied Olszewski's motion to dismiss the indictment.

At the second trial, the judge allowed Olszewski to examine witnesses concerning the circumstances of the destruction of the statement; permitted Olszewski to cross-examine the police about the contents of the statement; and gave a jury instruction regarding the lost statement.⁴ On February 5, 1990, Olszewski again was convicted of first-degree murder. He was sentenced to life in prison. On his second direct appeal to the Supreme Judicial Court, Olszewski argued, inter alia, that (1) Strong's testimony should have been excluded because Strong's original statement was destroyed; (2) the prosecutor made improper statements during closing arguments; and (3) the trial court's dismissal of a sitting juror based on ex parte communications between the juror and the court violated Olszewski's federal constitutional rights. Commonwealth v. Olszewski, 416 Mass. 707, 625 N.E.2d 529 (1993). The Supreme Judicial Court rejected these arguments and affirmed the conviction.

After the Supreme Judicial Court affirmed his conviction, Olszewski filed a motion for a new trial claiming that his trial counsel was ineffective for failing to call his father at a witness and that his appellate counsel was ineffective for failing to raise an ineffective assistance argument on direct appeal. The trial judge denied the motion on the merits. Olszewski through counsel later filed a motion to amend his motion for a new trial. This motion to amend included a claim, raised for the first time, that his trial counsel was ineffective for failing to inform the court about the reason for not calling Olszewski's father as a witness (on the theory that the court would then have refused to allow the prosecution to rely on the father's failure to testify). The court denied the motion to amend on the ground that the defendant had waived the issue by failing to present it in his motion for a new trial. A single justice of the Supreme Judicial Court denied Olszewski's petition for leave to appeal because his claim was "not new."

On December 5, 2001, Olszewski filed this petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts. Olszewski raised the three arguments that he raised on direct appeal and included the ineffective assistance claim that he raised in his motion to amend.

On January 18, 2005, the magistrate judge issued a detailed report recommending that Olszewski's petition be rejected. In her recommendation, the magistrate judge first addressed the destruction of Strong's original statement. Although the judge assumed that the police acted in bad faith in allowing Strong to destroy the statement, she ruled that the loss of evidence did not violate Olszewski's due process rights because, under California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), Olszewski could recreate the substance of the document through cross-examining witnesses at trial.

The magistrate judge then addressed whether the prosecutor's statements during closing argument violated Olszewski's due process rights. As to three of the allegedly improper statements, the magistrate judge found that the trial court's jury instruction cured any error. With respect to the remaining two statements (as to which there was no instruction), the magistrate judge also concluded that there was no constitutional error. The prosecutor's misstatement that two of...