Olszewski v. Spencer

• Citation: 369 F.Supp.2d 113
• Decision Date: 30 March 2005
• Docket Number: No. CIV.A. 01-12143NMG.,CIV.A. 01-12143NMG.
• Parties: Anthony OLSZEWSKI, III, Petitioner, v. Luis SPENCER, Respondent.
• Court: U.S. District Court — District of Massachusetts

369 F.Supp.2d 113

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

No. CIV.A. 01-12143NMG.

United States District Court, D. Massachusetts.

March 30, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David J. Nathanson, Committee for Public Counsel Services, Boston, MA, for Anthony Olszewski, III, Plaintiff.

Cathryn A. Neaves, Attorney General's Office, Boston, MA, for Luis Spencer, Defendant.

ORDER

GORTON, District Judge.

Presently before the Court is the petition of Anthony Olszewski, III for a writ of habeas corpus. On January 18, 2005, United States Magistrate Judge Dein entered a 60-page Report and Recommendation, stating that the petition should be denied. Both parties have now filed objections.

Petitioner's principal objection concerns the Magistrate Judge's resolution of his claim that the destruction of a statement of a potentially exculpatory witness, while the statement was in police possession, constituted a violation of due process. Specifically, he argues that the Magistrate Judge erred in applying to his claim a three-part test, based upon both California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) and Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Petitioner contends that the appropriate test contains only two parts, which are derived solely from the Youngblood opinion. Applying that test, he argues that the Magistrate Judge should have reached the issue of police bad faith and resolved it in his favor.

Notwithstanding petitioner's citations to authority from other circuits, the Magistrate Judge applied the proper First Circuit test, as set forth in United States v. Femia, 9 F.3d 990 (1st Cir.1993). The Court in Femia held:

Trombetta and Youngblood together established a tripartite test to determine whether a defendant's due process rights have been infringed by law enforcement's failure to preserve evidence....

A defendant who seeks to suppress evidence ... must show that the government, in failing to preserve the evidence, (1) acted in bad faith when it destroyed the evidence, which (2) possessed an apparent exculpatory value and, which (3) is to some extent irreplaceable.

Id. at 993-94. Under that test, it was proper for the Magistrate Judge to resolve the issue by concluding that prongs two and three were not satisfied and declining to address the issue of police bad faith. Thus, petitioner's objection to the Magistrate Judge's resolution of his due process claim is unpersuasive and overruled.

This Court declines to address petitioner's other objections because they, and the underlying claims which the Magistrate Judge rejected, are adequately dealt with in the Report and Recommendation.

Likewise, the Court will not consider respondent's contention that the Magistrate Judge erred in reviewing de novo petitioner's due process claim. That argument is moot because, as fully explained in the Report and Recommendation, even applying a de novo standard of review (which is more favorable to petitioner), the petitioner's argument is without merit. Accordingly, this Court accepts and adopts the Magistrate Judge's Report and Recommendation and this petition for a writ of habeas corpus is DISMISSED.

So ordered.

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

DEIN, United States Magistrate Judge.

I. INTRODUCTION

The petitioner, Anthony Olszewski, III ("Olszewski" or the "defendant"), was convicted twice of first-degree murder by Hampden County Superior Court juries, and is presently serving a life sentence. Olszewski's first conviction was reversed by the Massachusetts Supreme Judicial Court in Commonwealth v. Olszewski, 401 Mass. 749, 519 N.E.2d 587 (1988) ("Olszewski I"). A second jury convicted the defendant again, and his conviction was affirmed by the SJC in Commonwealth v. Olszewski, 416 Mass. 707, 625 N.E.2d 529 (1993) ("Olszewski II"). By his Petition for Writ of Habeas Corpus (the "Petition"), Olszewski raises four claims: (1) that his due process rights were violated due to the deliberate destruction by police of an exculpatory alibi statement made by a witness; (2) that there was ineffective assistance of counsel in that trial counsel failed to explain the reason for his failure to call the defendant's father as a witness; (3) that he was deprived of a fair trial because, in his closing, the prosecutor made assertions he knew were false, relied on excluded evidence and injected his own personal feelings into the case; and (4) that he was deprived of his right to a trial by a jury of his selection when the trial judge excluded an impaneled juror based on ex parte communications with the juror. For the reasons detailed herein, this court recommends to the District Judge to whom the case is assigned that the Petition for Writ of Habeas Corpus be DENIED.

II. STATEMENT OF FACTS¹

Procedural Background

Olszewski was indicted on March 2, 1982 by a Hampden County grand jury for the first-degree murder of his ex-girlfriend, JoAnne Welch. (SA Ex. 1 at 1). A jury trial began on January 12, 1983, Keady, J. presiding. (Id. at 6). On February 12, 1983 the jury returned a verdict, finding the defendant guilty of first degree murder on theories of deliberate premeditation and extreme atrocity and cruelty. (Id. at 6-7). Olszewski was sentenced to life imprisonment. (Id.). On direct appeal, the Massachusetts Supreme Judicial Court ("SJC") reversed and remanded the case due to the Commonwealth's loss of a number of potentially exculpatory items. Olszewski I, 401 Mass. at 758, 519 N.E.2d at 592. In so ruling, the SJC specifically addressed the destruction of a statement by an alibi witness, Philip Strong, which is relevant to the instant Petition. Id. An original, handwritten statement by Mr. Strong, who later changed his testimony, was destroyed under circumstances which will be described in more detail, infra. Mr. Strong's first statement had provided the defendant with an alibi, while in his second statement he contended the defendant had confessed to the crime. Id. at 752, 519 N.E.2d at 589. Mr. Strong's second statement was the only direct evidence of the defendant's guilt, the rest of the evidence being circumstantial. Id. at 755 & n. 4, 519 N.E.2d at 590-91 & n. 4. While finding that the original statement was both exculpatory and material, the SJC nevertheless found that the admission of Mr. Strong's testimony at trial was proper since "the defense counsel fully described to the jury the circumstances of the making and the destruction of Strong's first statement ... [and] thoroughly cross-examined, and effectively impeached, Strong." Id. at 758, 519 N.E.2d at 592.

In reversing and remanding the case due to the loss of other evidence, the SJC ordered as follows:

On remand, the judge, on proper showing by defense counsel that the lost or destroyed evidence is potentially exculpatory, must undertake the weighing test set forth in [Commonwealth v. Willie, 400 Mass. 427, 432-433, 510 N.E.2d 258 (1987)]. For 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.

Id., at 757, 519 N.E.2d at 591-92. Thereafter, the trial judge (Moriarity, J.) undertook extensive hearings relating to the evidence which had been lost and destroyed. By the time of these hearings, some physical evidence, although not Mr. Strong's first statement, had been located. (A.61).

In connection with Mr. Strong's first statement, the defendant argued that its destruction required that the case against him be dismissed. The trial judge rejected this argument and concluded as follows:

Weighing the culpability of the police against the materiality of the evidence and the potential prejudice to the defendant resulting from its destruction, I do not believe that dismissal of the indictment is required or warranted. As was true at the first trial, defense counsel will have full opportunity to describe the circumstances of the making and destruction of the first statement and to thoroughly cross-examine both Strong and the police officers with regard to it. I am also prepared, if requested to do so, to instruct the jury that they may draw inferences adverse to the prosecution's case based on the destruction of the statement.

(A.157-58). The trial judge further rejected the defendant's alternative request that the Commonwealth be precluded from addressing the first statement in its case-in-chief, and that the defendant be allowed to bring it out on cross-examination. (A.158). Such an approach, according to the trial judge, might result in the jury inferring "that the Commonwealth tried to conceal that information from them" and "would be a further distortion of the truth-seeking process." (A.158-59).

The trial began on January 16, 1990, Moriarity, J. presiding. (SA Ex. 1 at 12). On February 5, 1990 the jury returned a verdict of guilty of first degree murder by reason of extreme atrocity or cruelty. (Id.). See also Olszewski II, 416 Mass. at 708, 625 N.E.2d at 532. The defendant was again sentenced to life imprisonment. (SA Ex. 1 at 12). Olszewski filed a timely motion for a new trial pursuant to Mass. R.Crim. P. 25, which was denied on November 30, 1990. (See SA Ex. 9 at 1-2). On December 30, 1993, after conducting a plenary review in accordance with Mass. Gen. Laws ch. 278, § 33E (which governs capital cases), the SJC affirmed the conviction. Olszewski II.² In his direct appeal, the defendant had raised the following issues relevant to the instant habeas petition: (1) that Philip Strong's testimony should have been excluded because of the destruction of his original handwritten statement, Olszewski II at 714, 625 N.E.2d at 535; (2) that his federal constitutional rights had been violated by the dismissal of an impaneled juror before testimony began based on ex parte...