Sleeper v. Spencer

• Decision Date: 05 December 2007
• Docket Number: No. 06-2477.,06-2477.
• Citation: 510 F.3d 32
• Parties: Joseph SLEEPER, Petitioner, Appellant, v. Luis S. SPENCER, Superintendent, M.C.I. Norfolk; Martha Coakley, Attorney General of the Commonwealth of Massachusetts, Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

510 F.3d 32

Joseph SLEEPER, Petitioner, Appellant, v. Luis S. SPENCER, Superintendent, M.C.I. Norfolk; Martha Coakley, Attorney General of the Commonwealth of Massachusetts, Respondents, Appellees.

No. 06-2477.

United States Court of Appeals, First Circuit.

Heard September 10, 2007.

Decided December 5, 2007.

William C. Newman, with whom Richard L. Goldman was on the brief, for appellant.

Eva M. Badway, Assistant Attorney General, Commonwealth of Massachusetts, with whom Martha Coakley, Attorney General, was on brief for appellee.

Before LYNCH and LIPEZ, Circuit Judges and BARBADORO,^* District Judge.

BARBADORO, District Judge.

Joseph Sleeper was convicted of first degree murder in Massachusetts Superior Court. The Supreme Judicial Court (SJC) affirmed Sleeper's conviction, Commonwealth v. Sleeper, 435 Mass. 581, 760 N.E.2d 693, 713 (2002), and the United States District Court for the District of Massachusetts denied his petition for a writ of habeas corpus. Sleeper v. Spencer, 453 F.Supp.2d 204, 223 (D.Mass.2006). The sole ground certified for appeal is Sleeper's claim that he received ineffective assistance of counsel because his attorney promised in his opening statement to present an insanity defense even though he knew or should have known that the court would not allow the jury to consider the defense. The SJC confronted this argument head on, concluding that counsel's alleged promise was a misstatement rather than a broken promise and was, in any event, inconsequential. Because the SJC's determination that Sleeper suffered no prejudice is reasonable in light of controlling Supreme Court precedent, we affirm without resolving Sleeper's contention that counsel's performance was deficient.

I.

A. The crime

Sleeper and his wife, Victoria, separated in March 1992.¹ She filed for divorce several months later and obtained a protective order barring Sleeper from the marital home. In August 1993, after 17 months of separation, Victoria began dating another man. Sleeper soon became aware of this new relationship.

On September 2, 1993, Victoria and her male friend left the area for a Labor Day weekend vacation. While they were away, Sleeper made numerous telephone calls and entered Victoria's home in an effort to determine her whereabouts. Victoria returned, alone, on September 6, 1993. That evening, sometime before 9:00 p.m., Sleeper confronted Victoria at home. After chasing her into the bedroom, Sleeper stabbed her at least eight times with a knife. Two of the stab wounds severed her ribs, and the deepest wound went between six and one-half and seven inches into her chest. Sleeper noticed that Victoria was still breathing but did not telephone for an ambulance. She remained conscious for approximately four to five minutes after being stabbed, and died a few minutes later.

Sleeper left Victoria's home at about 9:30 p.m. Several hours later, he entered a nearby State Police barracks and told the trooper at the front desk that he had just killed his wife. In explaining what had happened, Sleeper told the officers who questioned him that he had gone to the home to confront Victoria about her new relationship and that he had obtained the knife he used to kill her from a toolbox in her home.

B. The trial

Sleeper's counsel filed a motion seeking funds for a psychological examination on October 26, 1993. In support of the motion, counsel asserted that "facts exist to substantiate a defense of either partial or total mental defect of the Defendant." The court granted the motion and counsel retained Dr. Ronald Ebert, a forensic psychologist, to examine Sleeper. Counsel filed Dr. Ebert's report with the court on April 19, 1994. On May 23, 1994, counsel filed requests for jury instructions that included both instructions on an insanity defense pursuant to Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556 (1967), and instructions on mental impairment negating the mens rea required for first-degree murder, pursuant to Commonwealth v. Gould, 380 Mass. 672, 405 N.E.2d 927 (1980).

The trial began on May 25, 1994. Sleeper's counsel delivered his opening statement immediately after the prosecutor's opening. He began by conceding that "Joseph Sleeper killed his wife, he stabbed her at least eight times viciously in the chest and other parts of her body." He then explained that, "We are not going to sit here and pretend, to play games as to who done it . . . . You're here to determine whether or not Joe Sleeper committed first degree murder, second degree murder, manslaughter, or was insane at the time he did it." Counsel then detailed Sleeper's early adult life, his marriage to Victoria, and how he began to drink and feel that "things were coming apart in his heart" after the first time he saw his wife "with another guy in a pickup truck." Counsel described the night of the killing from Sleeper's perspective, describing Sleeper's mental state as "insane" and "absolutely frenzied." Counsel ended his opening statement with this request: "Put yourself in the real world, please, and then make a determination as to whether this was a premeditated and planned scheme, a first degree murder case, which it is not; or something that built in this man and drove him crazy. That is what happened."

Sleeper testified at trial. He claimed that he went to Victoria's home on the night of the crime to borrow a car from one of their sons. He also testified that he encountered Victoria outside the home and that she invited him to come inside. He admitted that they argued. When he followed Victoria into her bedroom in an effort to stop her from calling the police, he claimed he saw a condom and a knife in an open chest of drawers. At that point, Sleeper said, "Everything just went crazy. I started seeing a merry-go-round, a ferris wheel with the numbers on it . . . I grabbed the knife and I had stabbed her." After the stabbing, "I was spinning all around, I remember spinning, I remember I didn't know what to do and I went down." In short, Sleeper claimed that he was unaware of what he was doing when he killed Victoria.

Dr. Ebert testified as an expert witness for Sleeper. Dr. Ebert opined that Sleeper was a long-time alcoholic and was suffering from an acute state of depression with psychotic features. Although Dr. Ebert acknowledged that Sleeper was not insane, he opined that Sleeper had a "diminished capacity" to act with criminal intent when he killed Victoria.

Dr. Wesley Profit, then the director of forensic services at Bridgewater State Hospital, offered expert rebuttal testimony. Dr. Profit opined that Sleeper was not suffering from any major mental illness, that he did not lack criminal responsibility at the time of the killing, and that he had the ability to harbor malice. On cross-examination, however, he conceded that he had not formed an opinion as to whether Sleeper suffered from "a diminished capacity."

During the charge conference after the conclusion of the evidence, the court agreed to provide instructions regarding counsel's mental impairment defense. Sleeper's counsel requested an insanity instruction notwithstanding the expert testimony, but the court denied this request.

In his closing statement, Sleeper's counsel began, "We are not asking you to make a determination as to whether or not Joseph Sleeper stabbed his wife eight times in the heart . . . what you're going to have to determine is the state of mind Joseph Sleeper was in at the time." Counsel emphasized, "this is not a first degree murder case . . . . This is the act of someone that was in a frenzy, that had a diminished capacity of intent." He contrasted the testimony of Dr. Ebert and Dr. Profit, emphasized Dr. Ebert's opinion that "there was a diminished capacity in this man's intent to perform premeditation and his intent to perform malice," and noted that Dr. Profit had not contradicted Dr. Ebert's opinion on diminished capacity. After discussing Sleeper's relationship with Victoria and the events on the night he killed her, counsel returned to the psychological testimony and again repeated Dr. Ebert's conclusions and credentials.

The court instructed the jury that it could convict Sleeper of first degree murder if Sleeper committed either premeditated murder or murder with extreme atrocity or cruelty. It also instructed on the lesser included offenses of second degree murder and voluntary manslaughter. Over the Commonwealth's objection, the court informed the jury that it could consider evidence of Sleeper's mental state at the time of the offense in determining whether he acted with the mens rea required for either first or second degree murder. The court also instructed the jury on Sleeper's claim that he was at most guilty of manslaughter because he committed the crime in the heat of passion with adequate provocation.

The jury ultimately convicted Sleeper of first degree murder because it determined that he acted with premeditation. It, however, rejected the Commonwealth's contention that Sleeper was also guilty of committing the murder with extreme atrocity or cruelty.

C. The Appeal

Sleeper appealed his conviction directly to the SJC, asserting twenty-nine assignments of error. As to ineffective assistance, Sleeper argued that his trial counsel was ineffective because counsel improperly promised that he would present an insanity defense in his opening statement even though he knew or should have known that no evidence would be introduced to support that defense. The SJC reviewed his claim under the ineffective assistance of counsel standard it uses on direct review of first degree murder cases: "whether there was an error in the course of the trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion." Sleeper, 760 N.E.2d at 710 (quoting Commonwealth v. Wright, 411 Mass. 678, 584 N.E.2d 621, 624 (1992)). Using this standard, the SJC held that...