BRYAN R. JOHNSTON, Petitioner, Appellant,
LISA A. MITCHELL, Superintendent, Old Colony Correctional Center, Respondent, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS HON. WILLIAM G. YOUNG, U.S. DISTRICT JUDGE
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.
Torruella, Selya, and Kayatta, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
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.
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.
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.
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.
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.
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.
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. 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.
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.
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.
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 ...