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Johnston v. Mitchell

United States Court of Appeals, First Circuit

September 8, 2017

BRYAN R. JOHNSTON, Petitioner, Appellant,
LISA A. MITCHELL, Superintendent, Old Colony Correctional Center, Respondent, Appellee.


          David J. Nathanson, with whom Eva G. Jellison and Wood & Nathanson, LLP were on brief, for appellant.

          Jennifer K. Zalnasky, Assistant Attorney General, Criminal Appeals Division, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee.

          Before Torruella, Selya, and Kayatta, Circuit Judges.


         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.

         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.

         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 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 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 thirty-day 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 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 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 ...

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