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Date: 09-11-2017

Case Style:

Bryan R. Johnston v. Lisa A. Mitchell

Federal Courthouse - Boston, Massachusetts

Case Number: 16-2277

Judge: Kayatta

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: David Nathanson and Eva G. Jellison

Defendant's Attorney: Jennifer K. Zalnasky and Maura Healey

Description: After he was convicted of first
degree murder in Massachusetts Superior Court, Bryan R. Johnston
took a collateral challenge to the Massachusetts Supreme Judicial
Court (SJC), arguing that his counsel rendered constitutionally
ineffective assistance at trial. The SJC affirmed Johnston's
conviction, and the United States District Court for the District
of Massachusetts denied his subsequent petition for a writ of
habeas corpus under 28 U.S.C. § 2254. On appeal, Johnston again
argues that trial counsel made objectively unreasonable decisions
at trial that ultimately led to Johnston's conviction. He contends
that trial counsel should have moved to suppress statements
Johnston made during psychiatric evaluations conducted in jail and
at a hospital after he was arrested and requested a lawyer. He
also contends that trial counsel should have made an effort to
prevent the jury from hearing about the various times that Johnston
asked to speak to his attorney while he was in custody. For the
following reasons, we affirm.
I. Background
The SJC's opinion describes the largely undisputed facts
of this case. See Commonwealth v. Johnston (Johnston I), 7 N.E.3d
424, 429–34 (Mass. 2014). We draw heavily from that account,
adding only the facts necessary to understand the contours of this
appeal.
- 3 -
During a telephone call late in the evening of
December 6, 2004, Johnston had an argument with David Sullivan, a
friend from high school with whom Johnston had remained close.
Id. at 429. Soon after the telephone call ended, Johnston drove
thirty-one miles from his home in Westfield, Massachusetts, to
Sullivan's home in Amherst, where Johnston shot Sullivan six times,
killing him. Id.
Driving back to Westfield early in the morning of
December 7, 2004, Johnston stopped in a swampy, wooded area near
a restaurant to dispose of the rifle he used to kill Sullivan.
Id. at 430. Leaving the site, he drove over a log that immobilized
his vehicle. Id. When a snowplow driver stopped to help him,
Johnston told the driver that because he had been drinking, he did
not want to call the police for assistance. Id. Their efforts to
move the car failed, and the snowplow driver left. Id. A short
time later, two police officers who had been dispatched to the
area of the restaurant saw the disabled vehicle and stopped. Id.
Johnston approached them to ask for help. Id. Johnston told the
officers that "he had come from a friend's house and had stopped
to urinate." Id. The officers observed that Johnston's eyes were
glassy and bloodshot and that he smelled lightly of alcohol, so
they asked whether he had been drinking. Id. He admitted he had,
but claimed he had stopped drinking much earlier in the evening
and was "fine" at that time. Id.
- 4 -
The officers asked Johnston to perform field sobriety
tests, but Johnston declined because he had heard from a college
professor that field sobriety tests were illegal. Id. The
officers explained that Johnston would not be arrested, but that
he would not be allowed to drive away without demonstrating that
he could safely operate the vehicle. Id. After Johnston took one
sobriety test, the officers determined he was too impaired to drive
safely. Id. Johnston's car was towed and he was allowed to
telephone a friend to drive him home, which Johnston calmly and
collectedly did. Id. Riding with the friend who picked him up,
Johnston told his friend he was relieved he had not been searched,
because, as he showed his friend, he was carrying a handgun despite
the fact that his license to carry had been revoked. Id.
Upon returning home, Johnston called his parents, who
would later testify that he was "making no sense, talking about
the mafia and gangs, and threatening to commit suicide." Id. at
433. An hour later, he spoke on the telephone with his sister,
who later stated that he made "no sense" during the call. Id.
Johnston's parents came to see him in the morning of December 7
and found that his eyes were unfocused and that he was saying
"bizarre" things. Id. Johnston's parents initiated civil
commitment proceedings against him, and police officers served the
commitment order on him later that morning. Id. at 430, 433.
Johnston refused to comply, struggled, and was eventually subdued
- 5 -
by the officers before being taken into protective custody on
December 7, 2004. Id. at 431.
On December 9, 2004, police found the murder weapon in
the woods with Johnston's fingerprints on it, and they discovered
Sullivan's DNA on a pair of Johnston's pants. Id. Johnston was
placed under arrest for the murder. At the Hampshire County House
of Correction, Johnston "refused to answer questions on advice of
counsel" during a medical intake procedure. Id. at 435. The
following day, the sheriff directed Dr. Michael Sherry to conduct
an examination to determine whether Johnston should be committed
for observation pursuant to section 18(a) of Massachusetts General
Laws chapter 123.1 Id. Johnston's counsel was present for the
1 Section 18(a) provides, in pertinent part, that:
If the person in charge of any place of
detention within the commonwealth has reason
to believe that a person confined therein is
in need of hospitalization by reason of mental
illness at a facility of the department or at
the Bridgewater state hospital, he shall cause
such prisoner to be examined at such place of
detention by a physician or psychologist,
designated by the department as qualified to
perform such examination. Said physician or
psychologist shall report the results of the
examination to the district court which has
jurisdiction over the place of detention or,
if the prisoner is awaiting trial, to the
court which has jurisdiction of the criminal
case. Such report shall include an opinion,
with reasons therefore, as to whether such
hospitalization is actually required. The
court which receives such report may order the
prisoner to be taken to a facility or, if a
male, to the Bridgewater state hospital to be
- 6 -
examination. Id. Dr. Sherry determined that Johnston needed to
be hospitalized because he was in danger of harming himself. Id.
A petition was therefore filed in court seeking Johnston's thirtyday
commitment to Bridgewater State Hospital (Bridgewater). Id.;
see Mass. Gen. Laws ch. 123, § 18(a). A judge approved the order
the same day. Johnston I, 7 N.E.3d at 435. Over the weeks that
followed, Johnston was approached numerous times by medical
personnel who asked him questions about his mental state. Id. at
436. Medical staff made notes about these conversations, most of
which showed Johnston repeatedly and frequently stating that he
did not wish to respond until he could speak to his lawyer. Id.
at n.3.
At trial, Johnston's sole defense was lack of criminal
responsibility. Id. at 431. The evidence at trial showed that he
was a regular user of drugs and alcohol. Id. It also showed that
he began experiencing hallucinations and delusions while attending
college in Hawaii, during which time he reported to his family
that he was being followed, surveilled, and stalked. Id. He
feared the "mafia" and the Federal Bureau of Investigation, both
of which he thought were after him. Id. at 431–32. He began
taking steroids so that he would grow strong enough to protect
received for examination and observation for
a period not to exceed thirty days.
Mass. Gen. Laws ch. 123, § 18(a).
- 7 -
himself and his family. Id. at 432. Fearing that the mafia was
pursuing him, he abandoned his studies in Hawaii and enrolled at
a college in Massachusetts in 2002. Id. "His professors recalled
him as being friendly, highly competent, intelligent, and well
respected by his peers. They did not observe any unusual behavior
or comments." Id. Meanwhile, at one point in the fall of 2002,
Johnston walked into a police department and, in a panic, reported
he was being chased. Id. Later, when Sullivan extended an offer
to become roommates, Johnston declined because he was concerned
that Sullivan was "a crime family boss" and that many of their
friends were also involved with organized crime. Id. Johnston
believed that Sullivan had threatened him and also claimed to
believe that Sullivan's crime family had arranged to have Johnston
sexually assaulted while he had been living in Hawaii. Id.
Johnston presented at trial the expert testimony of a
psychologist, Dr. Carol Feldman, and a psychiatrist, Dr. Martin
Kelly. Id. at 433. Dr. Feldman opined that Johnston was suffering
from paranoid schizophrenia at the time of the killing and was
deluded into believing he was being persecuted by the victim and
others. She determined that Johnston "experienced hallucinations
in which he heard voices of people intending to kill him, and
delusions of being subjected to surveillance." Id. Dr. Kelly
opined that Johnston suffered from a paranoid delusional disorder.
Id. This disorder would not be "characterized by a decline in
- 8 -
functioning, which explains his capacity to work . . . and attend
college." Id. Dr. Kelly also testified that drug and alcohol use
were not the cause of Johnston's delusions. Id. at 433–34. The
Commonwealth offered an expert in rebuttal, Dr. Michael Welner, a
psychiatrist who opined that Johnston was likely not schizophrenic
and likely did not suffer from paranoid delusional disorder. Id.
at 434. Rather, Dr. Welner said, Johnston's hallucinations likely
originated from his drug use. Id.
The jury convicted Johnston of first degree murder,
armed burglary, possession of a large capacity firearm in the
commission of a felony, and possession of a large capacity firearm
without a license. Id. at 429. He appealed to the SJC and moved
for a new trial. Johnston's new trial motion was denied without
an evidentiary hearing, and his appeal of the denial was
consolidated with his direct appeal. Id. The SJC rejected all of
Johnston's claims on appeal, including his claims that he received
ineffective assistance of counsel. Id. Johnston proceeded to the
United States District Court for the District of Massachusetts in
search of a writ of habeas corpus, which was denied. See Johnston
v. Mitchell (Johnston II), 213 F. Supp. 3d 282, 285 (D. Mass.
2016). This timely appeal followed.
II. Discussion
On appeal, Johnston seeks habeas relief based on two
ineffective-assistance-of-counsel claims. First, he argues that
- 9 -
trial counsel should have moved to suppress evidence stemming from
the conversations Johnston had with mental health professionals
while in jail and while committed at Bridgewater, after he had
refused multiple times to speak without counsel present. Second,
Johnston contends that trial counsel should have prevented the
jury from considering evidence that Johnston repeatedly requested
to speak with his attorney. Johnston presented both of these
arguments to the district court, and both were rejected. Id. The
district court also issued a certificate of appealability, 28
U.S.C. § 2253(c), and Johnston filed this appeal. We review the
district court's denial of Johnston's petition for habeas relief
de novo. See Tran v. Roden, 847 F.3d 44, 50 (1st Cir. 2017).
A.
1.
"[T]he Fifth and Fourteenth Amendments' prohibition
against compelled self-incrimination require[s] that custodial
interrogation be preceded by advice to the putative defendant that
he has the right to remain silent and also the right to the presence
of an attorney." Edwards v. Arizona, 451 U.S. 477, 481–82 (1981)
(citing Miranda v. Arizona, 384 U.S. 436, 479 (1966)). "If the
accused indicates that he wishes to remain silent, 'the
interrogation must cease.' If he requests counsel, 'the
interrogation must cease until an attorney is present.'" Id. at
482 (quoting Miranda, 384 U.S. at 474). "[I]t is inconsistent
- 10 -
with Miranda and its progeny for the authorities, at their
instance, to reinterrogate an accused in custody if he has clearly
asserted his right to counsel." Id. at 485. Once the right to
counsel under the Fifth Amendment is invoked, custodial
interrogation of a putative defendant may not resume without a
lawyer present, even if the putative defendant has consulted with
an attorney in the interim. See Minnick v. Mississippi, 498 U.S.
146, 153 (1990). The remedy for a violation of these prophylactic
rules, in the ordinary case, is the exclusion of evidence
impermissibly gathered as a result of the violation. See Oregon
v. Elstad, 470 U.S. 298, 306–07 (1985); cf. Harris v. New York,
401 U.S. 222, 224–26 (1971) (evidence obtained in violation of
Miranda is admissible for impeachment purposes).
Johnston contends that the rules sculpted in Miranda,
Edwards, and Minnick were violated when, after he refused to answer
questions during his medical intake at the county jail, he was
subsequently subjected to questioning and psychiatric evaluation
by mental health professionals at Bridgewater without counsel
present. He relies heavily on Estelle v. Smith, 451 U.S. 454, 467
(1981), in which the Supreme Court held that a defendant's
statements given in a court-ordered psychiatric evaluation could
not be considered as evidence of future dangerousness at sentencing
because the defendant was not made aware of his Fifth Amendment
Miranda rights prior to questioning. Johnston argues that his
- 11 -
invocation of one of those Fifth Amendment rights secured by
Miranda--the right to receive counsel before being questioned--
rendered any subsequent statements made by him without counsel
inadmissible. He therefore argues that his attorney should have
moved to suppress all of the records produced at Bridgewater except
for those of interviews conducted with counsel present. By failing
to do so, says Johnston, trial counsel rendered unconstitutionally
ineffective assistance under Strickland v. Washington, 466 U.S.
668 (1984). In other words, "counsel's representation fell below
an objective standard of reasonableness and . . . there exists a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012).
Johnston mounted the same challenge before the SJC.
Citing Edwards, Minnick, and Estelle's discussions of a putative
defendant's Fifth Amendment right to counsel, he argued that his
responses to medical questions after refusing to answer questions
without counsel present should have been excluded from trial.
Instead, his own trial counsel "moved [for] the admission of the
entire Bridgewater record." The prosecution used Johnston's
statements to Bridgewater staff to "bolster[] the Commonwealth's
position that Johnston['s] functioning was unimpaired" and to
counter his defense based on mental illness. Specifically,
Johnston complained to the SJC that the jury was permitted to
- 12 -
consider statements he gave to medical staff in which he denied
having hallucinations when asked on December 11, December 17, and
December 18, 2004. Johnston also pointed to records stating that
during a medical examination on December 20, 2004, he denied any
history of sexual abuse. These statements, along with others
admitted at trial, directly undermined Johnston's experts'
testimonies that he suffered from hallucinations and irrationally
feared that he had been raped in Hawaii at the victim's direction.
The SJC found that Johnston's counsel was not
ineffective for failing to seek suppression.2 The court's
explanation for its holding, however, characterized the nested
claim in Johnston's ineffective-assistance claim as a Sixth
Amendment right-to-counsel claim rather than the Fifth Amendment
right-to-counsel claim actually asserted. Indeed, the court
explicitly found that "what [was] not being argued" was "that
[Johnston] invoked his right to remain silent." Johnston I, 7
N.E.3d at 435–36. Rather, said the SJC, Johnston's argument was
"focuse[d] on the right to counsel under the Sixth Amendment to
the United States Constitution, which attached at the time of his
arraignment on the complaint that issued in the District Court."
2 The SJC applied the standard articulated in Commonwealth v.
Comita, 803 N.E.2d 700, 703 (Mass. 2004) (citing Commonwealth v.
Saferian, 315 N.E.2d 878 (Mass. 1974)), which we have found to be
"the functional equivalent of the federal Strickland standard."
Powell v. Tompkins, 783 F.3d 332, 349 n.12 (1st Cir. 2015).
- 13 -
Id. at 436. Finding that Johnston's pre-arraignment psychiatric
evaluations were not critical stages of his criminal proceeding,
the SJC held that Johnston "had no Sixth Amendment right that
required hospital staff to refrain from interviewing him or to
terminate interviews with him until counsel was present." Id. It
accordingly found that a suppression motion "based on an alleged
violation of the defendant's Sixth Amendment right to counsel[]
would not have succeeded," so trial counsel did not provide
ineffective assistance by failing to file such a motion. Id.
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2254, "we are typically required to
accord substantial deference to a state court's decision on the
merits." Jackson v. Marshall, 864 F.3d 1, 9 (1st Cir. 2017). If
a claim was "adjudicated on the merits in State court proceedings,"
28 U.S.C. § 2254(d), we may grant habeas relief on that claim only
if the state adjudication "was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States," Williams v.
Taylor, 529 U.S. 362, 376 (2000) (opinion of Stevens, J.) (quoting
28 U.S.C. § 2254(d)(1)), or "was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding," 28 U.S.C. § 2254(d)(2). "Only when
a petitioner's claims are exhausted in state court but the state
court fails to consider them on the merits or resolve them on
- 14 -
adequate and independent state law grounds do we review them de
novo." Jackson, 864 F.3d at 9 (citing Jenkins v. Bergeron, 824
F.3d 148, 152 (1st Cir. 2016)).
Johnston contends that this is one such situation. He
construes the SJC's missive that "what [was] not being argued . . .
[was] that he invoked his right to remain silent" to mean that the
SJC refused to consider the Fifth Amendment grounds that would
have supported a suppression motion. Johnston I, 7 N.E.3d at 435–
36. Although Johnston acknowledges that we must presume, absent
contrary indication, that a state court's adjudication is "on the
merits," he notes that this presumption may be rebutted "when there
is reason to think some other explanation for the state court's
decision is more likely." Harrington v. Richter, 562 U.S. 86, 99–
100 (2011). There is plenty of reason to think so here, says
Johnston: By affirmatively stating that Johnston was not arguing
that counsel should have sought suppression under the Fifth
Amendment, and instead evaluating only whether counsel should have
sought suppression under the Sixth Amendment, the SJC was presented
with Johnston's claim but failed to consider it.
Clearly appreciating and acknowledging the conduct of
counsel that Johnston alleged to be ineffective assistance, the
SJC stated: "The defendant . . . claims that trial counsel was
ineffective for failing to move to suppress all responses the
defendant made to officers at the Hampshire County house of
- 15 -
correction . . . and at Bridgewater State Hospital . . . after
invoking his right to assistance of counsel." Johnston I, 7 N.E.3d
at 435. The SJC also clearly understood that Johnston was arguing
that a motion to suppress would have succeeded because "assertion[]
of his right to assistance of counsel . . . required hospital staff
to refrain from talking to him." Id. at 436. Nevertheless, what
the SJC seems not to have understood is Johnston's grounding of
his argument in the standards of the Fifth, rather than the Sixth,
Amendment. This misapprehension likely arose from Johnston's
failure to mention the Fifth Amendment by name in his initial brief
to the SJC, although he did rely primarily on Fifth Amendment cases
such as Edwards and Minnick. See generally Estelle, 451 U.S. at
462, 469 (differentiating the Fifth Amendment right to counsel
from the Sixth Amendment right to counsel).
Ultimately, we need not decide whether the SJC's
apparent misapprehension of the precise argument being made to it
means that it did not adjudicate Johnston's claim on the merits.
Rather, we can assume such a failure, yet nevertheless affirm on
de novo review because Johnston has not demonstrated that trial
counsel's performance in failing to seek suppression of his
statements to medical personnel on Fifth Amendment grounds was so
deficient as to constitute a deprivation of his Sixth Amendment
right to counsel.
- 16 -
2.
Where an ineffectiveness claim is based on counsel's
decision not to file a suppression motion, the petitioner must
demonstrate that a meritorious claim formed the basis of the
proposed motion in order to establish deficient performance. See
Lockhart v. Fretwell, 506 U.S. 364, 374 (1993) (O'Connor, J.,
concurring) (citing Kimmelman v. Morrison, 477 U.S. 365, 382
(1986)); Long v. United States, 847 F.3d 916, 920 (7th Cir. 2017)
(stating that a claimant can only show deficient performance under
Strickland if he can prove a suppression motion would have been
meritorious); Jaynes v. Mitchell, 824 F.3d 187, 196 (1st Cir. 2016)
(Souter, J.) (stating that a claimant must show the claim
underlying the proposed suppression motion is meritorious, but
classifying this requirement as an aspect of the prejudice prong,
rather than the deficient-performance prong, of Strickland);
United States v. Mercedes-De La Cruz, 787 F.3d 61, 67 (1st Cir.
2015) (same).
We begin with the state of the law as reasonable counsel
would have perceived it. Even today, Johnston points to no federal
or state court decision holding that a putative defendant's
responses to doctors' mental-health questions posed after the
invocation of the right to counsel must be excluded when the
defendant puts his mental state or capacity directly at issue.
See Vargas-De Jesϊs v. United States, 813 F.3d 414, 418 (1st Cir.
- 17 -
2016) (observing that a lack of favorable precedent is one factor
that can undermine a showing of deficient performance). Johnston
argues that Estelle, Edwards, and Minnick formed a framework within
which any reasonably competent lawyer would think a suppression
motion filed on these grounds had merit. But Edwards and Minnick
provide only the baseline principles that, in the ordinary case,
a defendant's statements should be excluded if solicited by police
after the defendant makes an affirmative, unambiguous invocation
of the Fifth Amendment right to counsel, see Edwards, 451 U.S. at
485, and that an intervening meeting between the defendant and his
counsel does not sterilize statements given in subsequent
interrogations where counsel is not present, see Minnick, 498 U.S.
at 153–55. Neither case involved medical professionals asking
questions aimed at evaluating whether the putative defendant is a
danger to himself or others or requires medical treatment, and
neither case provided that answers given to any and all questions
asked after the invocation of a Miranda right must be excluded.
Cf. Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990) (recognizing
"'routine booking question' exception which exempts from Miranda's
coverage questions to secure the 'biographical data necessary to
complete booking or pretrial services'" (quoting United States v.
Horton, 873 F.2d 180, 181 n.2 (8th Cir. 1989))).
Estelle, for its part, provides that a defendant is
entitled, under the Fifth Amendment, to a Miranda warning before
- 18 -
speaking to a court-appointed psychiatrist if the prosecution
seeks to admit the psychiatrist's testimony to demonstrate the
defendant's future dangerousness. Estelle, 451 U.S. at 469. But
the Court in Estelle expressly declined to address the propriety
of admitting evidence gathered in a Miranda-violative psychiatric
examination in cases where the defendant "attempts to
introduce . . . psychiatric evidence." Id. at 468.
Johnston also argues that the D.C. Circuit's opinion in
United States v. Hinckley, 672 F.2d 115 (D.C. Cir. 1982) (per
curiam), abrogated on other grounds by Hudson v. Palmer, 468 U.S.
517 (1984), demonstrates that he had a meritorious Fifth Amendment
claim. There, the defendant, John Hinckley, Jr., was arrested for
attempting to assassinate President Ronald Reagan. Id. at 117.
After being turned over to the FBI, he informed agents that he
would not make any statement until he consulted with his attorney.
Id. at 120. Later, and without Hinckley waiving the right he had
invoked, two agents conducted a twenty-five-minute "background"
interview in which they asked Hinckley questions about his
background, his marital status, his educational and employment
history, his medical problems, his history of psychiatric
treatment, and his relationship with his family (among other
things). Id. at 121. The district court granted suppression of
the answers given to the agents' questions and of the testimonies
of the agents as to Hinckley's demeanor during the interview, and
- 19 -
the D.C. Circuit affirmed. Id. at 119. The D.C. Circuit rejected
the government's argument that because the agents should not have
known their questions were reasonably likely to elicit an
incriminating response from Hinckley, the interview was not a
"custodial interrogation" under Rhode Island v. Innis, 446 U.S.
291 (1980). Hinckley, 672 F.2d at 124–25. The court observed
that the "agents who conducted the 'background' interview of
Hinckley would naturally have been aware of the likelihood that he
would present an insanity defense," and "most details about an
individual's background are relevant to a determination of sanity,
[so] a systematic 'background' interview necessarily elicits
responses that the prosecution might want to introduce at trial."
Id. at 124–25.
Hinckley had nothing to say, however, about whether
statements made to physicians in the wake of an unfulfilled request
for counsel must be excluded even when the defendant introduces
the testimony of a psychiatric expert who opines on the defendant's
mental state. On that subject, the Supreme Court in Estelle
acknowledged and distinguished, with no hint of disapproval,
numerous opinions holding that it is not a Fifth Amendment
violation to require a defendant "to submit to a sanity examination
conducted by the prosecution's psychiatrist" if "the defendant
asserts the insanity defense and introduces supporting psychiatric
testimony," because the defendant's "silence may deprive the State
- 20 -
of the only effective means it has of controverting his proof on
an issue that he interjected into the case." 451 U.S. at 465–66.
And a few years after Hinckley was decided, the Supreme Court
blessed the admission of a psychiatric report describing "general
observations about the mental state of [a] petitioner." Buchanan
v. Kentucky, 483 U.S. 402, 423 (1987). The Court in Buchanan
distinguished Estelle by noting both that trial counsel joined in
the motion requesting an examination and that "petitioner's entire
defense strategy was to establish the 'mental status' defense of
extreme emotional disturbance." Id. "In such circumstances," the
Court explained, "with petitioner not taking the stand, the
Commonwealth could not respond to this defense unless it presented
other psychological evidence." Id.
The law of Massachusetts also suggested the difficulty
of prevailing on the challenge Johnston contends counsel should
have mounted. In Blaisdell v. Commonwealth, the SJC determined
that "a defendant who seeks to put in issue his statements as the
basis of psychiatric expert opinion in his behalf opens to the
State the opportunity to rebut such testimonial evidence in
essentially the same way as if he himself had testified." 364
N.E.2d 191, 200 (Mass. 1977). In Seng v. Commonwealth, the SJC
indicated even less concern that a criminal defendant's Fifth
Amendment right against self-incrimination is implicated in an
examination "not directed to the ultimate issue to be decided--
- 21 -
whether the defendant is guilty of the crime," like an examination
for competence rather than to assess criminal responsibility. 839
N.E.2d 283, 291 (Mass. 2005).
Since the conclusion of Johnston's trial, the Supreme
Court has reaffirmed its holding in Buchanan that "where a defense
expert who has examined the defendant testifies that the defendant
lacked the requisite mental state to commit an offense, the
prosecution may present psychiatric evidence in rebuttal." Kansas
v. Cheever, 134 S. Ct. 596, 601 (2013) (citing Buchanan, 483 U.S.
at 408, 422). In Cheever, the Supreme Court found no Fifth
Amendment violation where, to rebut the defendant's evidence that
he lacked the mental capacity to commit the charged crime, the
prosecution proffered evidence from a court-ordered psychological
examination. Id. at 602–03.
Johnston seeks to distinguish Buchanan and Cheever by
pointing out that the petitioner in Buchanan joined the motion for
a psychiatric examination and did not proactively invoke his
Miranda rights, while Cheever declined to decide whether the
psychiatric examiner's statements went beyond merely rebutting the
defendant's psychiatric evidence. Johnston also points out that
the psychiatric evaluations in these cases were different in
character from the intake procedures conducted and the questions
asked during rounds while he was being observed at Bridgewater.
It is true that neither Buchanan nor Cheever dealt with a precise
- 22 -
factual analogue to this case. But the point we make here is not
that Cheever controls; after all, it was decided after Johnston's
trial was completed. Rather, the point is that Cheever would not
read as it does if the prior case law had offered strong support
for the notion that the results of a psychiatric examination
compelled without counsel present could not be offered by the
government in a case in which a defendant mounted an insanity
defense.
To some extent, Johnston's argument on this front boils
down to the notion that a suppression motion would not have been
frivolous, so his attorney had nothing to lose and everything to
gain by taking a shot at it. But a lawyer's performance does not
fall to the level of a Sixth Amendment violation under Strickland
simply because the lawyer fails to pursue any and all nonfrivolous
strategies. See Knowles v. Mirzayance, 556 U.S. 111, 127 (2009)
("The law does not require counsel to raise every available
nonfrivolous defense. Counsel also is not required to have a
tactical reason--above and beyond a reasonable appraisal of a
claim's dismal prospects for success--for recommending that a weak
claim be dropped altogether." (citations omitted)). Rather,
except perhaps in an unusual case presenting circumstances not
present here, when defense counsel is faulted for having failed to
file a motion to suppress, the failure may constitute ineffective
assistance under Strickland only when "no competent attorney would
- 23 -
think a motion to suppress would have failed." Premo v. Moore,
562 U.S. 115, 124 (2011).
Johnston cannot meet that test. With nary an on-point
case in support and plenty of signals from the state and federal
courts pointing the other way, it was reasonable for trial counsel
to conclude that a Fifth-Amendment-based suppression motion was
highly likely to fail and thus was not worth bringing. Johnston's
ineffective-assistance claim therefore fails.3 See United States
v. Ortiz, 146 F.3d 25, 28 (1st Cir. 1998) (finding counsel's
conduct "well within the acceptable range of reasonable
professional assistance" because counsel relied on precedent that
led him to "reasonably believe[]" a suppression motion "would be
of no benefit to his client"). And because we find that Johnston
fails to establish deficient performance under Strickland, we need
not proceed to consider whether he has established prejudice under
Strickland on this first claim.
3 The district court came to the same conclusion, but it did
so on different grounds, finding that because the "medical
interviews were not of a criminal-investigative nature," they "did
not constitute 'interrogations' under the Fifth Amendment."
Johnston II, 213 F. Supp. 3d at 292 (citing Coble v. Quarterman,
496 F.3d 430, 440 (5th Cir. 2007)). While we need not and do not
decide whether this finding was correct, the fact that the district
court judge so concluded certainly supports the point that trial
counsel (like the district court here) could have reasonably viewed
a suppression motion as doomed to fail.
- 24 -
B.
Johnston's second claim on appeal is narrower: He
contends that he received ineffective assistance of trial counsel
because his attorney failed to move to redact the Bridgewater
medical records so that the jury would not see Johnston's numerous
refusals to answer questions on advice of counsel and his requests
that he be permitted to confer with counsel. According to
Johnston, these references were prejudicial because they allowed
the jury to draw an adverse inference that Johnston was withholding
inculpatory evidence. Johnston concedes that the SJC adjudicated
and rejected this Strickland claim on the merits, and he makes no
claim that the SJC's decision "was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding." 28 U.S.C. § 2254(d)(2). Hence, we
consider only whether the SJC's conclusion "was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States." Id. § 2254(d)(1).
A meritorious Strickland claim requires a claimant to
establish both deficient performance and prejudice. Prejudice
under Strickland requires a showing that there is a "reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Porter v.
McCollum, 558 U.S. 30, 38–39 (2009) (quoting Strickland, 466 U.S.
- 25 -
at 694). "A reasonable probability is one 'sufficient to undermine
confidence in the outcome.'" Gonzαlez-Soberal v. United States,
244 F.3d 273, 278 (1st Cir. 2001) (quoting Strickland, 466 U.S. at
694).
The SJC found that Johnston was not prejudiced by his
counsel's failure to attempt to redact the Bridgewater records.
It noted that "[t]he evidence of [Johnston's] refusals on advice
of counsel and his request to confer with counsel played a minor
role in the battle of experts on the question of criminal
responsibility, with an enormous amount of personal history,
conduct, and other material as ammunition for that battle."
Johnston I, 7 N.E.3d at 439 (internal quotations omitted). The
SJC observed that the jury was presented with evidence that
Johnston "disposed of the murder weapon and cleverly avoided
potential problems with the two Hadley police officers who were
dispatched to the restaurant"; that his employer thought him highly
competent and reliable in stressful situations; that faculty at
his college thought him capable and observed no unusual behavior
from him; that friends said that "he appeared normal when sober";
that he had never been hospitalized for psychosis before; and that
the doctor who conducted his Massachusetts General Laws
chapter 123, section 18(a) evaluation on January 6, 2005, testified
that Johnston "did not show psychotic symptoms while at Bridgewater
State Hospital." Johnston I, 7 N.E.3d at 438–39. The SJC also
- 26 -
recounted that the trial judge "forcefully instructed the jury
that [Johnston's] refusals to answer questions on advice of counsel
were 'appropriate,'" and that the jury "should 'not draw any
adverse inference from the fact that somebody has been advised by
their attorney not to answer questions,' 'either because of the
advice or because actions were taken pursuant to the advice.'"
Id. at 439.
On this record, we cannot conclude that the SJC's finding
of no prejudice was "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
To the contrary, it seems perfectly reasonable to conclude that
any jury that would find evidence of sanity in Johnston's assertion
of his rights would certainly find more than ample evidence of
sanity in the other testimony concerning Johnston's behavior and
comments. Moreover, Johnston's theory in this case was not that
he was never lucid and rational. Rather, it was that he
episodically acted delusionally. The challenged evidence bore
very little on that issue. AEDPA requires us to consider not
whether we agree with the SJC's holding, but rather whether the
SJC misconstrued or misapplied clearly established federal law in
finding no prejudice to Johnston. From this deferential vantage
point, we cannot say that it did.

Outcome: For the most part, the SJC clearly understood and
reasonably rejected Johnston's claims on the merits in a manner
consistent with federal constitutional law. To the extent that
the SJC misapprehended Johnston's argument regarding his Fifth
Amendment rights, Johnston suffered no prejudice because his
Strickland argument pertaining to his questioning by mental health
officials would not have prevailed. For these reasons, we affirm.

Plaintiff's Experts:

Defendant's Experts:

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