Opinion
Civil Action 19-1350
04-27-2023
LA'QUANTA CHAPMAN, Petitioner, v. ROBERT GILMORE, et al., Respondents.
REPORT AND RECOMMENDATION
DAVID R. STRAWBRIDGE UNITED STATES MAGISTRATE JUDGE
Before the Court for Report and Recommendation is the counseled petition of La'Quanta Chapman (“Chapman” or “Petitioner”), a prisoner incarcerated at SCI Greene in Waynesburg, Pennsylvania, for the issuance of a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Chapman is serving a life sentence following his jury trial and convictions in the Chester County Court of Common Pleas for first-degree murder, conspiracy to commit murder, and a number of related charges. By his petition, Chapman seeks habeas relief on four grounds, asserting that police misconduct rendered the evidence and verdict in his case unreliable, that his right to due process was violated when the prosecutor elicited testimony that Chapman declined to voluntarily provide a DNA sample, and that counsel provided ineffective assistance in two areas: as to a suppression motion and the introduction of DNA evidence. For the reasons that follow, we recommend that the Court deny the petition.
In preparing this Report, we have reviewed the following: the original pro se form petition, with appended list of claims asserted (Doc. 1); “Petitioners Amended Habeas Corpus Petition” filed by counsel in the form of a memorandum with appended exhibits (Doc. 15), which Petitioner has identified as the operative pleading (and which we will thus refer to as “Pet.”); and the Response to the cousneled petition filed by the Chester County District Attorney's Office (Doc. 17) (“Resp.”), which also included an appendix of exhibits. We have also considered the pertinent state court records received from the Court of Common Pleas of Chester County, which included the notes of testimony. The relevant appellate opinions are also found at No. 682 CAP, 635 Pa. 273 (Pa. Supreme Ct. Mar. 29, 2016) (direct review); No. 2963 EDA 2016 (second direct review but in Superior Court); and Nos. 175 and 176 EDA 2020, 2020 WL 7658354 (Pa. Super. Ct. Dec. 23, 2020) (PCRA appellate review).
A. A very gruesome crime
In November 2008, Chapman's Coatesville residence was the subject of a law enforcement investigation. Members of the Coatesville Police Department (the “CPD”) had begun preparing a search warrant application in late October after two confidential informants purchased cocaine there in September and October. By November, however, the CPD also suspected that Chapman may have been involved in the disappearance of 16-year-old Aaron Turner. Turner lived across the street from Chapman and had recently had a juvenile adjudication relating to drugs.
The CPD detectives with knowledge of the drug investigation as to Chapman swore out an affidavit on November 15, 2008 in support of a search warrant of his home and garage for evidence related to drug distribution. Their search warrant was approved by a district justice and executed on November 15, 2008. Marijuana, apparatus used in the drug trade, and numerous guns were found in the home. Chapman was in the home at the time of the execution of the warrant, and he was found wearing a bullet-proof vest and with several guns on his person. No cocaine was found.
While executing the search, the CPD officers observed several large, filled trash bags in the living room and bloodied items, including blood-soaked clothing, a bullet fragment, and empty bottles of bleach and ammonia. Detectives then presented a second application for a search warrant of Chapman's residence for evidence of crimes other than drug distribution and gun possession. That second search, conducted the same day, revealed two chainsaws that appeared to have blood and other debris on them that had given rise to a foul odor. They also found what appeared to be human tissue and blood in the basement of the residence and “swirl marks” where it appeared that the basement had been cleaned. A wooden table in the basement had blood on it and markings on the top consistent with the use of a chainsaw. While investigators believed this evidence related to Turner's disappearance, Chapman denied that Turner had ever been in his house. He gave a voluntary statement to police contending that he had dismembered two dogs in his basement.Chapman was arrested and charged with drug and firearm violations, as well as animal cruelty.
Remnants of a dog's body were found in the trash bags in his home.
As the evidence from Chapman's home was being studied, items from Turner's home were also obtained by police with his family's consent in an attempt to match DNA evidence. Clothing items found in the trash bags in Chapman's house were ultimately linked to the DNA of both Turner and Chapman. No remains of Turner were ever found but he was presumed dead. Following the DNA analysis, homicide charges were brought in the spring of 2009 against both Chapman and his 19-year-old cousin, Bryan Byrd, who had been visiting Chapman from Newark, New Jersey at the time Turner went missing.
Byrd gave a statement to police in April 2009. By his account, Chapman told Turner to come over to his house on October 30, 2008. Byrd took Turner to the basement, where Chapman and another man were waiting for him. Chapman directed Byrd to turn on music as loud as possible, following which Byrd observed Chapman and the other man screaming at Turner. They ordered Turner to take off his clothing while they both held him at gunpoint. Byrd witnessed both men shoot Turner, who was left for dead at the scene. A few days later, Byrd and Chapman used two chainsaws to dismember Turner's body, the pieces of which they placed in trash bags. They then used the tools to kill and dismember a pit bull in an attempt to cover up the human DNA evidence at the scene.
Byrd told detectives that he did not know who the man was but later selected a photo of Michael Purnell from an array. While we will refer to Purnell in this Report, he was never charged in this case nor did he testify at Chapman's trial.
Byrd stated that the trash bags with Turner's remains were put out for municipal trash collection. Sanitation workers recalled having picked up particularly smelly bags that fall. While the bags found on the first floor of Chapman's home during the search carried out of November 15, 2008 contained dog parts, bloody clothing, and items believed to have belonged to Turner, no bags containing Turner's remains were ever found, despite extensive searches of the local landfill.
Authorities brought charges against both Chapman and Byrd for the homicide of Turner and the disposal of his body. They proceeded with the case against Chapman as a capital case. By November 2011, however, Byrd had become a cooperating witness. In exchange for his anticipated testimony as to Chapman's role in orchestrating Turner's disappearance, Byrd was permitted to enter an open guilty plea to charges of third-degree murder, conspiracy to commit murder, hindering apprehension, and abuse of a corpse. His conviction on those counts exposed him to a possible aggregate sentence of 97 years, although sentencing was deferred.
Charges do not appear to have been filed against Michael Purnell, for reasons not apparent from our limited review. We note, however, that defense counsel argued to the jury at trial that the fact that no physical evidence linked Purnell to the crime scene showed that Byrd fabricated his account of Turner's death.
Chapman's case proceeded towards trial, with both guilt-phase and penalty-phase counsel investigating possible defenses and exploring strategies. Counsel sought to sever the animal cruelty charges from the murder charges, fearing that the former would unduly prejudice the jury against Chapman. Counsel also moved to suppress the physical evidence uncovered in the searches of Chapman's home on November 15, 2008 as fruit of the poisonous tree of the initial search warrant, which the defense argued was based on flimsy evidence of a cocaine distribution operation, particularly where no cocaine was found on the premises. Finally, counsel litigated the proper characterization of the prior convictions upon which the Commonwealth sought to establish an aggravating circumstance in any penalty phase. Ultimately, however, the case proceeded to a late October 2012 trial date before a death-qualified jury.
B. Coatesville Police Department complications
In the summer of 2012, some new developments unfolded. As set out in a July 5, 2012 letter from a Chester County ADA Michelle Frei to Chapman's counsel, the District Attorney's Office had been notified that the Pennsylvania Office of the Attorney General had opened an investigation into the CPD. ADA Frei provided no information about the nature of the investigation or what prompted it but noted that the DA's Office was “not the prosecuting agency in this investigation” and referred any inquiries to the Attorney General's Office. ADA Frei reported that the DA's position was that, because this was an investigation only and there were no convictions, “the investigation is not admissible in any trials.” (Commonwealth Resp. to PCRA Pet. at Appendix C.) See also 907 Notice (Oct. 18, 2019) at 8 (quoting letter).
On September 13, 2012, the Chief Deputy DA who was working with Ms. Frei on Chapman's case, Patrick Carmody, wrote to defense counsel with additional discoverable material in his file, some of which, he noted, had been requested recently by defense counsel. The items, which were listed in the letter, included criminal records of a prison informant, phone records pertaining to Chapman and Byrd, photos and diagrams identified by Byrd when interviewed by police in April 2009, and various other photos, one of which was described as:
One (1) color photo of cocaine that was in the living room of Chapman's house during 11/15/08 search warrant (1 page in length). This has been recently sent to lab.(Commonwealth Resp. to PCRA Pet. at Appendix D.)
We note here that Petitioner's counseled habeas petition asserts that:
On September 13, 2012 the District Attorney's Office forwarded to Petitioner's counsel a letter disclosing what had been found during their search of Det. Pawling's residence. (R.R. 77).(Pet. at 9 (emphasis added).) We are aware of
The issue of recently discovered cocaine related to this case was one of the subjects discussed at a pre-trial conference held a few weeks later, on October 2, 2012. The Commonwealth had filed a motion in limine to preclude the defense from going into some “issues” that had arisen involving certain CPD personnel, Detective Pawling and Sergeant McEvoy, both of whom had been involved in either the search of Chapman's home or his interrogation. (See N.T. 10/2/12 at 65.) Deputy DA Carmody explained to the court that he filed the motion, which concerned investigations that were unrelated to the Aaron Turner homicide case and which had not resulted in charges against either office, in case the defense argued that the “the cocaine” that was recently found corroborated recent reports that Detective Pawling was “doing things with evidence.” (Id. at 65-66.) The transcript of that proceeding does not reflect the entirety of the discussions concerning the question of whether cocaine had, in fact, been recovered from Chapman's residence. Rather, the transcript begins in the middle of a discussion of several agenda items and later makes reference back to earlier discussions that are not reflected in the transcript. What we can adduce from the transcribed portion of that proceeding, however, coupled with the judge's description of that proceeding in his subsequent Rule 907 Notice and later Order, is that the Commonwealth was to make no reference to any cocaine having been found at Chapman's home, and the defense would not impugn the integrity of the detectives who carried out the November 15, 2008 search for cocaine. See, e.g., N.T. 10/2/12 at 20 (statement by judge recounting agreement that “the cocaine will not be used”); id. at 66 (confirming that the defense would likewise be precluded “from bringing in any discussion concerning the subsequent issues or investigations concerning [Det.] Pawling or [Sgt.] McEvoy”). This agreement was reduced to an order that was entered on October 19, 2012.
While it is not clear when these concerns as to Pawling first came to light, in 2014, he pled guilty to charges of theft from charitable organizations with which he was involved, theft through the filing of a fraudulent insurance claim, and theft of cash that had been seized in various CPD investigations during times that the evidence locker was under his control. His fingerprints were found on empty evidence envelopes in the CPD evidence room, and empty evidence envelopes were found in Pawling's home in 2013. All of the empty evidence envelopes pertained to cash. The record does not reflect that he was believed to have taken any drug evidence. See generally Commonwealth v. Pawling, N.T. 4/9/14 (CP Nos. 1000-2014, 1006-2014 & 3205-2013) (appended to Commonwealth Response to PCRA Pet. at Appendix A). Pawling retired from the CPD in the summer of 2012.
A further investigation as to the circumstances of the discovery of this cocaine evidence was conducted by a CPD detective in 2019 at the request of members of the District Attorney's Office who were then addressing Chapman's counseled PCRA petition. They interpreted PCRA counsel's position to be that “a photograph of a bag of cocaine was evidence planted by former Coatesville Detective Gerald Pawling during the warranted search of Laquanta Chapman's residence.” (See Commonwealth Resp. to PCRA Pet. at Appendix E.) Detective Kevin Campbell reviewed the evidence inventory sheets, the crime report, and the lab report identifying the pieces of evidence used in DNA testing. He noted that a “clear plastic baggie cont. suspected crack cocaine” was inventoried as the 140th piece of evidence in the investigation into the disappearance of Aaron Turner and that other evidence items logged in on the same date were noted as possible “reference sample for Aaron Turner.” (Id.) Moreover, the log entry for the baggie of cocaine indicated that it was collected from “Aaron's bedroom under bed.” (Id.) Detective Campbell opined that the cocaine evidence pictured in the photo was discovered during a search of victim Aaron Turner's bedroom and removed as contraband. (Id.) He explained that the photograph could not have been “planted” in Chapman's home at the time it was searched in 2008, as an evidence bar code was visible on the evidence envelope directly behind the baggie of cocaine in the photo, as were additional boxes of evidence with additional bar codes visible in the background. He explained that bar codes could only be generated at the police station, after the seizure and transportation of the evidence from the location at which it was seized. (Id.) He concluded that the photo was taken from at the police station “during an evidence review session in September of 2012.” (Id.) He also stated that the description on the photo that suggested that the pictured cocaine was “in the living room of Chapman's House during 11.15.08” was a “misrepresentation.” (Id.) It is not necessary for our Court to conclusively resolve the origin of the photo. We observe, however, that the theory that Petitioner continues to advance - that cocaine seized from Chapman's home was removed by Detective Pawling to his own home, or that photos of evidence were improperly relocated to Pawling's home - is contradicted by the evidence of record in many ways, as we set out herein.
C. Trial
In light of Byrd's cooperation, Chapman's counsel at trial conceded that Turner had been killed in his client's basement and that Chapman and Byrd subsequently dismembered the corpse and cleaned up the crime scene. He argued, however, that it was Byrd who had committed the murder. Chapman did not testify, nor did the defense call any witnesses.
On November 9, 2012, the jury convicted Chapman of first-degree murder, conspiracy to commit murder, nine counts of possession of instruments of crime, abuse of corpse, two counts of hindering apprehension, two counts of receiving stolen property, possession with intent to deliver, simple possession, possession of drug paraphernalia, and cruelty to animals. In the separate penalty phase that followed, on November 14, 2012, the jury found an aggravating circumstance, in that Chapman had a significant history of violent felony convictions, and determined that Chapman should receive a death sentence. The trial court imposed that sentence, as well as a consecutive, aggregate sentence of imprisonment of 85-170 years for the remaining charges. Byrd was later sentenced to 20-40 years for his role in the crimes perpetrated against Turner.
II. POST-TRIAL PROCEDURAL HISTORY
Chapman was represented at trial by Evan Kelly, Esquire, and was assisted by J. Michael Farrell, Esquire, who primarily handled the penalty phase. Following Chapman's conviction and sentencing, he filed a direct appeal through Attorney Farrell, raising claims relating both to the guilt and penalty phases. However, after he later asked to proceed pro se, the court appointed P.J. Redmond of the public defenders' office to replace Farrell.
In earlier pre-trial phases, including the litigation of the first suppression motion, Chapman was represented by Michael Noone, Esquire. Attorney Noone was replaced after he resigned as a court-appointed attorney.
Petitioner has informed the Court of the subsequent legal troubles of Attorney Farrell. See Pet. at 1-2 n.1. Those facts have no bearing, however, on any of the claims presented in this petition, nor do they appear to have impacted any of the proceedings or appeals in Chapman's case in state court.
Among the claims raised as to the guilt phase --- and presented again on habeas review ---was Chapman's contention that his refusal to voluntarily surrender a DNA sample to investigators was wrongfully used against him at trial. He also argued that the lower court erred when it denied a pretrial motion seeking to suppress evidence taken from his residence, suggesting that the search warrant application described criminal conduct only in a detached garage such that a warrant to search the house was unlawful.
The Pennsylvania Supreme Court characterized Chapman's argument as “materially misleading,” as the search warrant “expressly identified the premises to be searched” as both the single-family dwelling twin house and the detached garage, and the affiants “specifically sought permission to search the residence” based on pertinent criteria that was set forth in the affidavit. See infra, Section IV.B.2, for further discussion of the support for the affidavit.
The Pennsylvania Supreme Court vacated the death sentence. It found that Chapman's prior out-of-state convictions did not qualify as felonies and thus could not establish that he had a significant history of prior felony convictions, which was the aggravating circumstance found by the jury to have justified capital punishment. However, the court denied relief on the guilt-phase claims. It remanded only for imposition of a sentence of life imprisonment without the possibility of parole. Commonwealth v. Chapman, 136 A.3d 126 (Pa. 2016).
The trial court imposed the new sentence on August 16, 2016. Chapman filed a notice of appeal as to that judgment as well, but Attorney Redmond subsequently submitted an Anders brief. The Superior Court affirmed the judgment of sentence on March 27, 2018 and permitted counsel to withdraw. Commonwealth v. Chapman, 2018 WL 1477040 (Pa. Super. Ct. Mar. 27, 2018). Petitioner did not seek further review in the Pennsylvania Supreme Court.
In Anders v. California, 386 U.S. 738 (1967), the Supreme Court described a process that required counsel, before withdrawing, to file a brief with the history of the case and the basis for counsel's conclusion that a pending direct appeal is frivolous. The client is then permitted to respond to the brief, to retain new counsel for the appeal, or to proceed pro se. The court then makes an independent judgment as to whether the appeal is, in fact, frivolous. See Commonwealth v. Chapman, No. 2963 EDA 2016, 2018 WL 1477040, at *2-3 (Pa. Super. Ct. Mar. 27, 2018) (describing process).
On March 25, 2019, Chapman filed a collateral relief petition under Pennsylvania's Post-Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541-9546 (“PCRA”), through new, retained counsel, Teri B. Himebaugh, Esquire. His petition, as later amended, presented two claims, both of which are included in the claims presented on habeas review: (1) that after-discovered evidence --- that lead detectives in his case had committed criminal misconduct --- rendered the evidence in his case, and the verdict, unreliable, violating Petitioner's 4th, 6th, and 14th Amendment rights; and (2) that trial counsel rendered ineffective assistance in failing to make the correct argument in relation to the motion to suppress that had been presented prior to trial and pursued in the direct appeal. The PCRA Court dismissed the petition without a hearing on November 13, 2019. Chapman appealed to the Superior Court, but on December 23, 2020, that court affirmed the dismissal of the PCRA petition. Commonwealth v. Chapman, 2020 WL 7658354 (Pa. Super. Ct. Dec. 23, 2020).
During the pendency of the PCRA litigation, Chapman initiated this habeas action with the filing of a pro se petition on or about March 29, 2019. At Petitioner's request, the proceedings were stayed pending the state court review. See Doc. 10. Upon the conclusion of PCRA review, Attorney Himebaugh entered her appearance in this action as well. She filed an amended petition on his behalf in the form of a legal memorandum on April 13, 2021. (Doc. 15.) Chapman now raises four grounds for relief, one of which was raised on the first direct review and the remainder of which were presented during the PCRA round of state review.
This is the operative pleading and the filing to which we refer with the citation to “Pet.”
In the first claim, Chapman contends that “after-discovered evidence” revealed that “the lead homicide detectives” had a history of misconduct, rendering the evidence introduced at his trial and therefore the verdict “unreliable,” in violation of his “Fourth, Sixth and Fourteenth Amendment rights.” (Pet. at 7.) His second claim asserts ineffective assistance of counsel at trial and on appeal, where counsel, in his view, failed to “make the correct argument in relation to the Motion to Suppress, violating Petitioner's rights under the Confrontation Clause.” (Pet. at 22.) Next he argues that his Sixth and Fourteenth Amendment rights were violated by what he characterizes as “trial counsel's agreement to inconclusive DNA results without an on-record colloquy reflecting Petitioner's understanding of the consequences,” in violation of his right to confront the witnesses against him. (Pet. at 32.) Finally, he contends that his Fourteenth Amendment rights were violated by “the prosecution comments about his refusal to voluntarily surrender DNA samples to police.” (Pet. at 36.)
The Commonwealth respondents, collectively represented by the Chester County District Attorney's Office, filed a Response. Doc. 17 (“Resp.”). Petitioner did not seek leave to file a reply. The matter is now ripe for review.
III. LEGAL STANDARDS
Where a claim presented in a federal habeas petition was “adjudicated on the merits” in the state courts, a federal court shall not grant habeas relief unless the adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that 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). The “clearly established Federal law, as determined by the Supreme Court of the United States” in § 2254(d)(1) refers only to the holdings, not the dicta, of that Court. Williams v. Taylor, 529 U.S. 362, 412 (2000).
The Supreme Court has explained that a writ may issue under the “contrary to” clause of Section 2254(d)(1) only if “the state court applies a rule different from the governing rule set forth in [United States Supreme Court] cases or if [the state court] decides a case differently than [the United States Supreme Court has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). “A state court decision is ‘contrary to' [the Court's] clearly established precedents if it ‘applies a rule that contradicts the governing law set forth in [the Court's] cases' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent.'” Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
A writ may issue under the “unreasonable application” clause only where there has been a correct identification of a legal principle from the Supreme Court but the state court “unreasonably applies it to the facts of the particular case.” Bell, 535 U.S. at 694. This requires the petitioner to demonstrate that the state court's analysis was “objectively unreasonable.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002). Even if a federal court were to believe that a constitutional violation occurred, if “it is at least reasonable to conclude that there was not, [that] means that the state court's determination to that effect must stand.” Early, 537 U.S. at 11.
Similarly, for relief to be warranted under 28 U.S.C. § 2254(d)(2) for a state court adjudication “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” the petitioner must demonstrate that a reasonable fact-finder could not have reached the same factual conclusions as the state court. When considering this question, the federal court must presume that factual findings made by the state courts are correct, and it is the petitioner's burden to overcome that presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
IV. DISCUSSION
As noted above, the operative pleading filed by Chapman after retaining counsel advances four grounds for relief. See Doc. 15. We will discuss the claims in the order in which he presents them.
Comprehending these claims has been more challenging than we would have expected from a counseled petition. Misleading and factually incorrect assertions in the counseled submission presented both in state court and here have complicated this effort unnecessarily, although we cannot say that Petitioner or counsel intended to misrepresent the record to our Court.
A. Whether history of misconduct by the lead detectives, revealed in after-discovered evidence, rendered the evidence and guilty verdict unreliable, in violation of the Fourth, Sixth, and Fourteenth Amendments
Chapman's first claim is that the Commonwealth violated his right to due process where it allegedly knowingly used false evidence, some of which he suggests was obtained from an unlawful search. He contends that the verdict that resulted from testimony obtained in this manner “cannot be considered inherently reliable enough to sustain a verdict.” (Pet. at 20, citing, inter alia, Miller v. Pate, 386 U.S. 1 (1967), and Napue v. Illinois, 360 U.S. 264 (1959).) See also Pet. at 16 (describing police and prosecutorial misconduct rendering verdict unreliable as violative of right to due process). He points to the lead homicide investigator and the custodian of the CPD evidence room, Sgt. McEvoy and Det. Pawling respectively, and suggests that Pawling had a “habit” of tampering with police evidence and forging public records. (Pet. at 11.) He alleges that had the Suppression Court known of the scope and nature of criminal misconduct of Det. Pawling, including theft of cash seized as evidence in CPD criminal investigations and what Chapman believes is the relation of that misconduct to this case, it would have found the averments contained in the affidavits of probable cause to be inherently unreliable and the court would have suppressed all of the evidentiary “fruits” of the two searches of Chapman's home. (Pet. at 21.) He argues that the defense theory of what happened to Aaron Turner --- that Byrd and perhaps Purnell were the shooters --- then would have been as plausible as the prosecution's theory and would have established reasonable doubt of Petitioner's guilt.
Elsewhere in his petition he describes McEvoy as having been the subject of investigation in regard to a romantic relationship he had with another CPD officer and his attempts to avoid detection of improprieties in that relationship, which led to his resignation.
This would have resulted in the exclusion not just of the marijuana and the most direct evidence of drug dealing, such as the guns and bulletproof vest, but also the chainsaws, bloody clothing, cleaning supplies, and the DNA evidence traced to Turner.
Respondents assert that no nexus has been shown between the November 2008 investigation into the murder of Aaron Taylor and Det. Pawling's “unrelated” criminal conduct. (Resp. at 41.)
1. Due process standards
The Supreme Court has long held “that the Fourteenth Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence.” Miller v. Pate, 386 U.S. 1, 7 (1967) (citing cases). The same is true if the state, while not soliciting false evidence, “allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264, 270 (1959) (citations omitted). In addition, as the Court recognized in Brady v. Maryland, 373 U.S. 83 (1963), “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. The Court recognizes that “[e]vidence qualifies as material when there is any reasonable likelihood it could have affected the judgment of the jury.” Wearry v. Cain, 577 U.S. 385, 392 (2016) (quotations omitted). The Court more recently acknowledged that, pursuant to this standard, the petitioner can prevail even if “the undisclosed information may not have affected the jury's verdict.” Id. at 392 n.6. That is, to prevail on a Brady claim, the petitioner “need not show that he ‘more likely than not' would have been acquitted had the new evidence been admitted,” but rather “must show only that the new evidence is sufficient to ‘undermine confidence' in the verdict.” Id. at 392 (internal citations omitted).
2. Detective Pawling's role in Chapman's conviction
Detective Pawling testified at Chapman's trial on November 2, 2012, five months after he had retired from the CPD, and was qualified as an expert in crime scene investigation. He testified about how the first search on November 15, 2008 led to observations of physical evidence of a crime that led to a second search that same day, and he explained how he processed the crime scene. He authenticated photos of the bags that were found in the dining and living rooms, described their contents, and detailed the various items seized from the basement. He described his role as limited to the outset of the investigation and reported that he then turned the matter over to another detective. He testified that the DNA results came out in June 2009. See N.T. 11/2/12 at 2-80. On cross-examination, he testified that he was not involved in lifting fingerprints from the crime scene. He also answered questions relating to the search for evidence connecting Michael Purnell to the crime scene. See N.T. 11/2/12 at 80-88. He was not asked any questions concerning the basis for the affidavit supporting the search warrant application.
See note 3, supra.
3.Analysis of due process claim
Chapman presented this claim to the state court on PCRA review upon receipt of “after-discovered evidence” of Detective Pawling's “misconduct,” specifically, Pawling's subsequent convictions for theft and tampering with evidence from CPD investigations. The state court recognized Chapman's contentions as implicating the Fourth, Sixth, and Fourteenth Amendments, and the Superior Court recounted his argument, advanced in his appellate brief, that he was asserting that Detective Pawling “had a history/habit of misconduct significant for the tampering with police evidence, forgery and tampering with public records.” Commonwealth v. Chapman, 2020 WL 7658354, **4 (Pa. Super. Ct. Dec. 23, 2020) (quoting Appellate Br. at 15). The Superior Court ultimately determined that Chapman had not shown a nexus between his case and Detective Pawling's misconduct that would have led to a different result at trial. Id. at **5.
We find nothing unreasonable in the state court's application of Brady or its progeny in the state court's resolution of factual questions. We are not aware of any misrepresentation made by Detective Pawling regarding any evidence in this case. His testimony concerning how the search was carried out on November 15, 2008 and the evidence of a killing and clean-up that was found in Chapman's home would not have been undermined by his apparent proclivity to steal funds from organizations to which he had access, including cash stored in the CPD evidence room. To be sure, no cash was found in the search of Chapman's home when looking initially for evidence of drug dealing, nor was the presence or absence of money central to the murder and associated charges lodged against Chapman. Moreover, it is unclear how the Commonwealth could have knowingly presented false evidence against Chapman as to Detective Pawling where his testimony concerning the crime scene remained unimpeached and the discovery of his responsibility for missing evidence or expropriating charitable funds does not appear to have been confirmed until Pawling's residence was searched in July 2013, some 8 months after Chapman's conviction.
To the extent that Chapman seeks to create a nexus between his case and Detective Pawling, he seeks to bridge a gap too far. He points to news reports indicating that a file marked with his name was found in Pawling's residence when it was searched in 2013. Yet that does not make it more likely that Detective Pawling offered false testimony at trial as to what was found when Chapman's residence was searched in 2008. In addition, while the trial prosecutors created some confusion when they produced to the defense shortly before a trial a photo of cocaine that was found in relation to this case --- indicating it was found in Chapman's home --- no such cocaine was found in Detective Pawling's residence, nor was there any basis to support the conclusion that any evidence from the investigation into the disappearance of Turner and the prosecution of Chapman was ever misappropriated by Detective Pawling. To be sure, the PCRA Court took judicial notice of Pawling's guilty plea colloquy of April 9, 2014 and confirmed that “there were no allegations that [he] concealed, mishandled or otherwise tampered with evidence to affect the outcome of any trials.” Commonwealth v. Chapman, 2020 WL 7658354, **5 (Pa. Super. Ct. Dec. 23, 2020) (quoting PCRA Court Rule 907 notice of intent to dismiss, 10/8/19 at 2 n.3 pp. 7-9)).
The Superior Court reasonably found that there was no factual nexus between Pawling's misconduct and this case. Chapman has not overcome the presumption of correctness of that factual finding with clear and convincing evidence but rather continues to advance confusing and unproven contentions. He has not shown that the rejection of his PCRA claim “was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” See 28 U.S.C. § 2254(d)(2). In addition, the Superior Court's rejection of Chapman's Brady arguments did not reflect an unreasonable application of any Supreme Court precedents, including Wearry and Napue. See 28 U.S.C. § 2254(d)(1). Given these conclusions, Ground One does not warrant habeas relief.
B. Whether counsel failed to “make the correct argument” in relation to the suppression motion, which allegedly led to a Confrontation Clause violation
Chapman's second claim for relief asserts that both pre-trial counsel arguing the suppression motion in 2011 and later counsel on appeal should have presented authority that the seized evidence should be suppressed because the veracity of the averments in the Affidavit of Probable Cause could not be determined. (Pet. at 27.) He contends that the state court determination as to this claim was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(2). (Pet. at 28.) He also asserts that the state court decision was an unreasonable application of Strickland, inasmuch as he believes counsel failed to develop and present available and admissible evidence to support suppression of this evidence, which would have been the only viable complete defense. (Pet. at 29.) He asserts that the state court unreasonably determined that he was not prejudiced by counsel's deficiency in this regard where the court focused on irrelevant facts and failed to appreciate that the purportedly invalid first warrant enabled police to access his home and observe further items in the second search, especially in the basement, to his detriment. (Pet. at 31-32.)
This claim is distinguished from the previous claim arising from the subsequent revelations of Det. Pawling's tampering with cash when entrusted with the CPD evidence room.
We begin our analysis with an overview of the constitutional provision asserted and proceed to evaluate how this claim was presented to and adjudicated by the state courts.
1. Strickland ineffectiveness standard
A petitioner claiming ineffective assistance of counsel must prove that 1) “counsel's representation fell below an objective standard of reasonableness,” and 2) there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694.
To satisfy the first or “unreasonable performance” prong of the Strickland test, a petitioner must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687. In evaluating counsel's performance, a reviewing court must be “highly deferential” and must make “every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689. Moreover, there is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. Courts cannot hold counsel ineffective for failing to take an action that would have had no basis, and counsel is never ineffective for failing to pursue a meritless claim. See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000).
To satisfy the second or “prejudice” prong of the Strickland test, the petitioner must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome” of the proceeding. Id. It requires more than just a “conceivable” likelihood of a different result. Harrington v. Richter, 562 U.S. 86, 104 (2011). Our Court of Appeals reminds us that “[t]he effect of counsel's inadequate performance must be evaluated in light of the totality of the evidence at trial: ‘a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.'” United States v. Gray, 878 F.2d 702, 710-11 (3d Cir. 1989) (quoting Strickland, 466 U.S. at 696).
2. State-court presentation and adjudication of ineffectiveness claim
Chapman raised this ineffectiveness claim on PCRA review. He asserted, as he does here, that counsel should have challenged the veracity of the averments in the initial affidavit of probable cause during the suppression motion and in subsequent appellate court proceedings. The PCRA Court dismissed his claim as devoid of arguable merit, finding that it was based solely on conjecture. See Rule 907 Notice (Oct. 18, 2019) at 11.
Petitioner then presented this claim to the Superior Court. The Superior Court interpreted “[t]he gist of [his] argument [to be] that because the initial search warrant sought crack cocaine and none was found, it establishes a ‘possible motive' that the ‘detectives used non-existent cocaine sales to non-existent [confidential informants] as a ruse in order to obtain evidence related to the missing person case.'” Commonwealth v. Chapman, Nos. 175 EDA 2020 & 176 EDA 2020, 2020 WL 7658354, **5 (Pa. Super. Ct. Dec. 23, 2020) (quoting Appellant's Brief). The court offered both a procedural and substantive basis for denying relief. First, the court examined how the suppression issue had been presented in earlier phases of the case. The court noted that the PCRA defines “a claim that has been previously litigated” as non-cognizable on PCRA review. Id. (describing 42 Pa. Cons. Stat. § 9544(a)(2)). It further noted that the Act defines a matter as having been previously litigated when “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” Id. It cited prior case law for the proposition that “[t]he fact that a petitioner presents a new argument or advances a new theory in support of a previously litigated issue will not circumvent the previous litigation bar.” Id. The court found that, as Chapman “raised the affiants' veracity and motive before the suppression court, and did not raise it on appeal,” his claim “was previously litigated and he is not entitled to PCRA relief.” Id. at **6.
Chapman had also argued in the motion to suppress filed on November 10, 2011 that the absence of cocaine, cash, and stash hiding places undermined the affidavit and gave reason to believe the affidavit was false. He also argued that it was unusual for CPD to execute a search warrant based upon only one “controlled buy” by each confidential informant. But the court found that any ulterior motive concerning the search warrant at the time it was executed was not relevant to its legality.
Notwithstanding its procedural finding, however, the Superior Court went on to explain that even had the issue not been previously litigated, no relief was warranted. It found that Petitioner had not “made a single showing that the police included false information in the affidavit” and that he had failed to produce or otherwise point to any evidence to support his claim that the affiants either knew that the information was false and deliberately included it in their search warrant application or that they included it in reckless disregard for whether it was true or false. Id. at **7. The court recounted the following findings of the suppression court on Chapman's initial motion to suppress:
[T]he affidavit in support of warrant #1 contains ten (10) independent sources that believe the residence was being used in the sale of drugs and that three (3) individual sources over the past month confirmed that the suspected drug activity that had been taking place in the detached garage had moved to the rear door of the residence. Those ten (10) independent sources and three (3) individual sources and the information provided by them were corroborated by police observation and as such corroborate each other and are in fact corroborated by the police.Id. (quoting Suppression Court order, 7/20/10 at 1 n.1 at 2). The Superior Court explained that it therefore agreed with the PCRA Court that there was no arguable merit to the claim of ineffective assistance of suppression counsel. It also determined that the failure to prove trial counsel's ineffectiveness was “fatal to his layered ineffectiveness claim” concerning the performance of appellate counsel. Id.
3. Analysis of ineffective assistance claim asserted in petition
We see nothing unreasonable in the state court's determination that Chapman failed to demonstrate deficient performance by counsel in the initial challenge to the search warrant. The argument that he suggests Attorney Noone should have made - that the absence of cocaine in the house casts doubt on the veracity of the alleged confidential informants' reports of cocaine sales - was not a strong one. The argument was no more compelling when successor counsel, Attorney Kelly, argued it a year later. Simply stated, Chapman has not shown that the state court's rejection of this ineffectiveness claim was an unreasonable application of Strickland or that it was based on an unreasonable determination of facts. Therefore, habeas relief is not appropriate as to this claim. See 28 U.S.C. § 2254(d).
Respondents' brief does not present a clear position on this issue but seems to defend that the search warrant application was supported by probable cause. (Resp. at 79-82.)
To the extent Chapman also seeks to interject Detective Pawling's troubles into this claim, we note that Pawling was not the affiant for the initial search warrant regarding drug sales at his property. As the PCRA Court found, there was no nexus between Pawling's theft of money from the evidence room and other officers' authorship of an affidavit of probable cause as to drug operations believed to be run out of Chapman's house.
C. Whether counsel “agreed” to inconclusive DNA results without obtaining proper consent from Petitioner, in violation of his Confrontation Clause rights
In his third ground for relief, Chapman claims that trial counsel performed deficiently when he “allowed the Commonwealth to admit DNA results which were inconclusive without consulting with his client and gaining his approval to do so first.” (Pet. at 32.) He contends that counsel's failure to object to the Commonwealth's “line of questioning” and the admission of the DNA results was equivalent to a stipulation. (Id. at 32-33, citing N.T. 11/7/12 at 192-201.) He argues that this de facto “agreement” by counsel violated his constitutional right to confront the DNA expert with a cross-examination. (Id. at 33.) The state court rejected this claim. As we set out below, we agree that no relief is warranted on this claim.
1. The Sixth Amendment right to confrontation
Under the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause “applies to witnesses - in other words, those who ‘bear testimony.'” Crawford v. Washington, 541 U.S. 36, 51 (2004). Testimonial out-of-court statements admitted as evidence must be accompanied by its author's in-court testimony. Michigan v. Bryant, 562 U.S. 344, 354 (2011). Confrontation Clause violations are subject to harmless-error review. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). “[T]he Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee,” and it “commands that reliability should be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford, 541 U.S. at 61.
2. The evidence as to DNA
At Chapman's trial, the Commonwealth called forensic biologist Katherine Cross. Without objection as to her qualifications, she was permitted to testify as an expert in the field of DNA and blood splatter analyses. (N.T. 11/7/12 at 174-78.) She testified that DNA samples from known individuals were compared against DNA obtained from clothing, swabs taken from basement surfaces, knives, machetes, and chainsaws. (Id. at 189.) She compared evidence against “indirect” DNA evidence from Aaron Turner and “direct” DNA evidence from his mother. She agreed, to a reasonable degree of scientific certainty, “that Aaron Turner's DNA appeared on a variety of difference samples,” including surfaces in the basement and items found in the trash bags in the house. She specified that her conclusion was based on the DNA found having been “consistent with that of Aaron Turner” and that in many of the comparisons the likelihood that two people could have produced the same DNA profile was 1 in 7 trillion. (Id. at 192-93.) She testified clearly as to the analyses where the alleles found on some of the items were “consistent with” but not “conclusive” as to known sources such as Chapman or Byrd, although she could exclude large segments of the United States population as contributors. (Id. at 207.) On cross-examination, Cross acknowledged that her DNA analysis did not reveal who was present during the shooting. She also confirmed that a particular revolver that Byrd said was fired by Michael Purnell did not contain DNA of Purnell, although it did contain DNA of others. (Id. at 237-39.)
An allele is “[o]ne of two or more versions of a genetic sequence at a particular region on a chromosome. An individual inherits two alleles for each gene, one from each parent.” National Cancer Institute, Dictionary of Genetics Terms, https://www.cancer.gov/publications/ dictionaries/genetics-dictionary/def/allele (visited Apr. 21, 2023).
No stipulation to any DNA evidence or forensic testimony is apparent to us in the notes of testimony on this date.
3. Analysis
Chapman argues that counsel was ineffective for “not at least discussing the stipulation with Petitioner and asking his permission to enter into it.” (Pet. at 35.) He contends that had he been colloquied by the court, “his lack of knowledge that his counsel was going to enter into the agreement/stipulation and his opposition to it would have been known and on the record.” (Id.) He then proceeds with an argument that gives the impression that no DNA expert had taken the stand, inasmuch as he contends that, but for this supposed “stipulation,” the Commonwealth would have been required to call the expert for the DNA results to be admitted, and defense counsel “would have had the opportunity to cross-examine the expert on the nature of the inconclusive results.” (Id.) He argues that because the jury lacked guidance as to what it meant for the DNA results to be “inconclusive,” it “could have likely inaccurately and very prejudicially concluded that ‘inconclusive' meant that it is more probable or possible but just not guaranteed that the DNA matched the Petitioner.” (Id. at 36.) He contends that if counsel had cross-examined the expert, “the jury would have likely viewed the DNA results in a less prejudicial light.” (Id.)
These issues were explored on PCRA review, and the court concluded that no evidentiary hearing was warranted. The PCRA Court concluded that Chapman's claim was belied by the existing record, as he failed to identify or cite to any perceived agreement or stipulation with regard to the DNA evidence.
On appeal, the Superior Court agreed that relief was not due on this ineffectiveness claim. It again provided both a procedural and merits-based justification. The Superior Court noted that while Chapman cited to a particular section of the Notes of Testimony, N.T. 11/7/12 at 192-201, he failed to “cite to any perceived agreement or stipulation with regard to DNA evidence.” Commonwealth v. Chapman, 2020 WL 7658354, **7 (Pa. Super. Ct. Dec. 23, 2020). Citing case law on appellate procedure rules on waiver, the Superior Court determined Chapman's failure to have provided appropriate factual background and citation to the record impeded the court's ability to address the issue on appeal and amounted to a waiver of the claim. Id. at **7-8.
Alternatively, however, the Superior Court also determined that no relief would be warranted even if it were to review the claim. It noted the deficiencies in the record that had been identified by the PCRA Court. It also noted that based on its review of the testimony at N.T. 11/7/12 at 174-240 of Katherine Cross, the Commonwealth's DNA and blood spatter expert, it “could discern no such agreement or stipulation as alleged by appellant.” (Id. at **8.) The Superior Court also noted that Chapman's argument that counsel's deficient performance deprived him of the opportunity to cross-examine on the nature of the DNA results was “belied by the record,” as trial counsel did cross-examine Ms. Cross. (Id., citing N.T. at 11/7/12 at 236-40.) The court found that this ineffectiveness claim “is without arguable merit” and that the PCRA Court did not abuse its discretion in denying it.
We have reviewed the record and confirmed the state court's characterization. We are at a loss to understand how Chapman can continue to advance this claim. If he is focusing on certain DNA matches as being inconclusive as to Chapman, we observe that the DNA expert's testimony was largely focused on the evidence that Aaron Turner had been in the basement. This was relevant inasmuch as Chapman was charged with his homicide but Turner's body was never recovered. It was also relevant to undermine Chapman's denial to police that Turner had ever been in the basement and to bolster Byrd's account that Turner was shot and dismembered there. In addition, Ms. Cross offered sufficiently clear testimony that certain items were “not conclusive” as to matching Chapman's DNA. We fail to see how there was either “deficient performance” by counsel or prejudice to Chapman due to counsel's failure to meaningfully challenge the admissibility of expert testimony. There is no basis in 28 U.S.C. § 2254 for habeas relief on this claim.
For example, the Commonwealth asked Ms. Cross about her testing of a pair of “True Religion” brand jeans that had been found in the trash bags and contained dark material that was consistent with blood and “other material,” some of it … consistent with tissue, skin, things of that nature, and some of it … consistent with whatever might be found in trash.” (N.T. 11/7/12 at 205.) She explained that blood or human tissue yielded a greater volume of DNA but that “touch DNA from someone wearing an item or touching an item,” where some surface skin cells may just “rub off,” produced much smaller samples. (Id. at 206.) She stated her finding that the jeans “produced a mixture profile that was consistent with Aaron Turner, possibly Laquanta Chapman and possibly Bryan Byrd.” (N.T. 11/7/12 at 203.) When asked about why she used the term “possibly” and “the percentages,” she explained that “[r]egarding Aaron Turner, all 26 of the alleles that are in Aaron Turner's reference profile were observed in this sample.” (Id. at 203.) She noted that in the 14 different areas of DNA tested in Aaron Turner's reference sample, she counted 26 alleles, and that “[a]ll 26 of those were observed in this sample on the jeans.” (Id. at 204.) This profile excluded over 99% of the U.S. population as a source of that DNA material. (Id.) The finding as to Chapman were less certain because “there are two places with Mr. Chapman that there are alleles present in his reference sample that we did not find in this question sample. So, we cannot say with 100 percent absolute certainty that he is the source of this, but we can say he cannot be excluded as being one of the contributors to the sample.” (Id. at 206.) Given that there were only 18 of 20 matches to Chapman's reference profile, over 99% of Americans could be excluded as the DNA source. (Id. at 207.) Bryan Byrd's reference sample matched at 21 of the 23 alleles identified in the pair of jeans, again “not enough to say conclusively that it is Bryan Byrd, but enough to say he cannot be excluded as potentially being a part of this mixture.” (Id.) We conclude that Ms. Cross adequately explained her findings.
D. Whether the reference to Chapman's refusal to voluntarily provide DNA samples to police violated Due Process
In his fourth and final ground for relief, Chapman claims that his right to Due Process was violated when his refusal to consent to a warrantless search was allegedly “intentionally elicited” by the prosecutor and “wrongfully used against him at trial.” (Pet. at 36.) He contends that the prosecution's “spotlighting” his decision not to submit his DNA to the police should be treated like a violation of the traditional self-incrimination protection, and that the trial court should have granted his request for a mistrial when this occurred. (Pet. at 38.) The state court rejected this claim when it was presented in the initial direct appeal to the Pennsylvania Supreme Court. As we set out below, we agree that no relief is warranted on this claim.
1. Due process and the role of prosecutors
The Supreme Court has considered the effects of misdeeds by prosecutors in several contexts. In Griffin v. California, 380 U.S. 609 (1965), it was presented with the question of whether comment on the failure to testify violated the defendant's Fifth Amendment rights under the Self-Incrimination Clause. The defendant in Griffin was on trial for murder and had been seen with the decedent the evening of her death, including in the alley in which her body was found. He chose not to testify at trial. The court instructed the jury that he had a constitutional right not to testify and that a defendant's failure to deny or explain evidence of which he had knowledge did not create a presumption of guilt nor relieve the prosecution of any of its burden of proof. Yet in the closing argument, the prosecutor drew attention to the fact that Griffin did not testify, stating that “[h]e would know” how the victim arrived in the alley, how blood got where it did, and whether he had mistreated her. Griffin, 380 U.S. at 610-11. The Court held that the Fifth Amendment forbade this “comment by the prosecution on the accused's silence.” Id. at 615.
Apart from breaches of specific Constitutional protections, the Supreme Court has explained that, when assessing whether actions by the prosecutor could constitute a violation of the defendant's Due Process trial rights as to vacate a conviction, it is “not enough” that the defendant establishes that the prosecutor's actions were “undesirable or even universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). Rather, the operative question for a reviewing court is whether they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Our Court of Appeals has noted that reviewing courts must “examine the prosecutor's offensive actions in context and in light of the entire trial, assessing the severity of the conduct, the effect of the curative instructions, and the quantum of evidence against the defendant[.]” Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001).
As it did in Griffin, with the comment on the defendant's silence, the Court's most significant cases arise in the context of closing arguments by the government. In Darden, the prosecutor stated in the closing that the death penalty could “guarantee against a future similar act” by the defendant and made emotional comments such as: “He shouldn't be out of his cell unless he has a leash on him and a prison guard at the other end of that leash.” Darden, 477 U.S. at 180 n.12. The Darden Court acknowledged that the comments were improper but also recognized that “[t]he prosecutors' argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent.” Id. at 181- 82. The Court ultimately found that the prosecutor's actions did not “so infect the trial with unfairness” as to deny the defendant due process. Id. at 181.
In Donnelly, the due process claim was also based on the prosecutor's remarks in closing arguments, where the prosecutor expressed a personal opinion of guilt and what the defendant hoped to achieve at trial by continuing to stand trial even after a co-defendant elected to plead guilty to a lesser offense. Donnelly, 416 U.S. at 639-40. The Court found that the prosecutor's remarks did not constitute a violation of due process. It noted that the “trial court took special pains to correct any impression that the jury could consider the prosecutor's statements as evidence in the case.” Id. at 644. The Donnelly Court additionally noted that the prosecutor had told the jury that his argument was not evidence, and “the trial judge specifically re-emphasized that point.” Id. Thus, the prosecution's statements stating his personal belief or theory as to the defendant's guilt was not so prejudicial that a curative instruction would fail to mitigate the effect of the statements. Id.
2. The trial testimony and jury instruction
On direct examination, Commonwealth witness Lt. Kevin Dykes remarked that Bryan Byrd and Michael Purnell voluntarily provided DNA samples to police but that Chapman had not done so. See N.T. 11/5/12 at 123. Chapman's counsel voiced an objection and the court, acting sua sponte, cautioned the jury:
Ladies and gentlemen, the defendant is required to provide no evidence whatsoever in this matter. And I instructed you earlier on the presumption of innocence. And I instructed you about the obligation of the defense to provide no evidence, only if it deems appropriate to do so.
And the fact that any requests were made of Mr. Chapman to do anything in this matter is completely irrelevant. He is under no obligation to provide any evidence, either during the course of the trial or during the course of the investigation.Id. at 123-24. At a sidebar discussion, the defense then moved for a mistrial, asserting that the refusal to provide the DNA sample was “clearly an assertion of the right to silence.” Id. at 124.
The prosecutor apologized to the court. He also noted, however, that the jury was about to hear a recording of a police interview which would also reveal that Chapman declined to volunteer a DNA sample. Defense counsel objected that such an exchange should not be heard by the jury. The court agreed and ruled that “it can't be on the tape.” The court explicitly required the Commonwealth to ensure that the upcoming playback of the interview of Chapman was edited appropriately, but it denied the motion for mistrial.
After a break, the prosecution played for the jury the edited videotape of the police interview with Chapman. Although the prosecutor had set out to redact references to Chapman's refusal to furnish a DNA sample, one such reference slipped through the cracks. The jury thus heard the following exchange from the interview:
[Detective]: And you're telling me I should check everybody's DNA but I can't even get your DNA. You understand like how I'm supposed to check everybody's?
[Chapman]: No I'm saying like.
[Detective]: You want me to eliminate you from stuff.
[Chapman]: Yeah.
[Detective]: Well.
[Another Detective]: You want me to check DNA on other people that stay in the house but the person that owns the house....Commonwealth Ex. 38-B at 153 (Transcript of 11/24/08 Interview) (played on 11/5/12). After the video clip was over, the defense again moved for a mistrial. The Commonwealth noted that the reference was fleeting and in the context of a lengthy statement that ran 160 pages in transcription. The trial court again denied the mistrial motion. It noted that the exchange did not reveal that Chapman refused to provide DNA after being requested for it, although the court agreed that it would have been better had the subject not been referenced at all. The court offered to repeat its cautionary instruction. Defense counsel asked to think about it overnight. N.T. 11/5/12 at 135-38. The subject did not come up again in any transcribed portion of the next day's proceedings.
3. State-court presentation and adjudication
On direct appeal to the Pennsylvania Supreme Court, Chapman continued to press the claim that the trial court should have granted a mistrial when the jury heard the detective's statement that Chapman did not volunteer his DNA. In his appellate brief, he suggested that his Fifth Amendment right against self-incrimination was violated, but also generally alluded to the notion that his Due Process rights were violated inasmuch as he perceived the Commonwealth to be inviting the jury to infer guilt from his failure to submit DNA and where he suggested the instruction could not cure the prejudice. Commonwealth v. Chapman, 136 A.3d 126, 130 (Pa. 2016). The state court concluded that the Fifth Amendment challenge was “misplaced,” reasoning that the United States Supreme Court had held that evidence garnered from a blood test was “neither testimony nor evidence relating to some communicative act or writing,” which placed it outside the scope of the Fifth Amendment. Id. at 131 (citing Schmerber v. California, 384 U.S. 757, 765 (1966)). The court agreed, however, that “the circumstances presented implicate a broader due process concern,” as “most jurisdictions” hold that admission of evidence of a refusal to consent to a warrantless search “unacceptably burdens an accused's right to refuse consent.” Id. (citing cases).
The state supreme court heard Chapman's case on the initial direct appeal from conviction, inasmuch as he was under a death sentence.
Having accepted that there may have been a due process violation, the court proceeded to consider whether the error was harmless. The court concluded that the reference to Chapman's refusal to volunteer a DNA sample was harmless due to three circumstances. First, the refusal “was not highlighted to the jury by the prosecutor” - a reference to the prosecutor's examination of Lt. Dykes and subsequent closing argument. Id. Second, “the trial court had issued an appropriate cautionary instruction and offered to repeat it.” Id. And third, citing to defense counsel's concessions in his closing argument, the court suggested that the prosecutor's actions were not so damaging where “Chapman's consciousness of guilt relative to his many crimes was manifest … by virtue of his admitted conduct in destroying evidence and lying pervasively to police.” Id. Considering the record as a whole, which it found presented “strong direct and circumstantial evidence of [Chapman's] guilt,” the court found that the reference to Chapman's refusal to provide a DNA sample voluntarily “simply did not make a difference in the verdict.” Id.
In his closing, defense counsel suggested that Chapman lied to protect Byrd, his younger cousin from Newark, New Jersey, from facing legal repercussions for his actions while staying with Chapman in Coatesville. See N.T. 11/8/2012 at 104.
The state court pointed to the portion of the closing argument in which defense counsel acknowledged: “The evidence shows, and most of the witnesses show, Laquanta Chapman was involved in cleaning up the crime scene. The issue in this case is, did the Commonwealth prove beyond a reasonable doubt he is guilty of homicide?” (N.T. 11/8/2012 at 98.)
4. Analysis
Given that this claim was adjudicated on the merits in the state court, relief is foreclosed to Chapman unless he can demonstrate that the state court's adjudication of this claim was contrary to, or an unreasonable application of, clearly established Supreme Court caselaw or was based upon an unreasonable determination of the facts in light of the evidentiary record before the state court. In this case, and in the context of harmless error analysis, we may focus on the singular question of whether the admission of this evidence, and notwithstanding the curative instruction, had a substantial and injurious effect on the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619 (1993). See also Fry v. Pliler, 551 U.S. 112, 119-20 (2007) (noting that there is no requirement to apply both AEDPA and Brecht “when the latter obviously subsumes the former” and therefore that it was “correct to apply the Brecht standard of review in assessing the prejudicial impact of federal constitutional error in a state-court criminal trial”).
Citing the United States Supreme Court's observation that “there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial,” United States v. Hasting, 461 U.S. 499, 508-09 (1983), Respondents urge the Court to look at the entirety of the proceeding and whether the alleged prosecutorial misconduct “so infect[ed] the trial with unfairness as to make the resulting conviction a denial of due process.” (Resp. at 92, quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Respondents also suggest that “the alleged error” is “rendered harmless” when a trial court takes prompt curative actions, as juries are presumed to follow the trial court's instructions. (Resp. at 93.) Respondents point to the limited references in the testimony given live in court and heard from the edited videotape of the police interview of Chapman about his decision not to volunteer his DNA to authorities. They note that the prosecutor did not again refer to Chapman's refusal to give a DNA sample. (Resp. at 104.) They also argue that “any adverse inference from these references pale in significance when compared to the actual DNA and forensic evidence,” which contradicted Chapman's statements to police about his conduct. (Id.)
We proceed to consider whether the fact that the jury heard this evidence had “substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 637. If a reviewing court “is in grave doubt” about this question, then “[the] error is not harmless.” O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (emphasis added) (internal citations omitted). We have no such doubt. Chapman overstates his case when he argues that “repeated” references to his refusal to volunteer a DNA sample would have played to the jury's “likely … suspicion” that someone who was “innocent” would have provided his DNA and would not “hinder” an investigation in this manner. (Pet. at 41.) The Commonwealth did not, however, refer to this in the closing argument or invite the jury to consider Chapman's response to the detectives' request for a DNA sample as evidence of consciousness of guilt. We thus do not agree with Petitioner that these “improper references played on the jury's emotions and underlying misconceptions about what an innocent person ‘would have done' under like circumstances.” The jury also heard that Chapman's DNA was ultimately obtained through a warrant and analyzed in relation to physical evidence collected at the crime scene. Thus, Chapman's “refusal” had little effect in hindering any investigation. Our consideration of the context of the entire case also assures us that this evidence did not have a substantial or injurious effect on the outcome.
Between its examination of its witnesses and the playing of the recording of Chapman's interview containing the one statement that was not redacted, the jury heard just two times that detectives had asked Chapman to provide a DNA sample voluntarily and that they were not successful.
Chapman notes that the Commonwealth's case against him was “heavily reliant on the evidence related to the gruesome and bloody dismembering and disposal of the victim's body and retention of the chainsaw[.]” (Pet. at 41.) But whether or not Chapman declined the offer to voluntarily surrender his DNA does not make the physical evidence and DNA identification any more impactful. And the most significant DNA that was found was not of Chapman but of Turner, who was missing and whose body was never recovered, as it was the presence of his DNA that refuted Chapman's assertion that Turner was never in his home and that only dogs had been dismembered in his basement.
The fact that Chapman did not offer up his DNA voluntarily when he was being questioned with regard to Turner's disappearance would not have been the tipping point in the jury's consideration of his guilt for the charges he faced. The references to Chapman's refusal to acquiesce to a DNA search did not “so infect the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The state court's rejection of this claim in the first direct appeal did not reflect an unreasonable application of the Supreme Court's due process jurisprudence nor was it based upon an unreasonable determination of any facts. Therefore, there is no basis under 28 U.S.C. § 2254 to award habeas relief.
V. CONCLUSION
None of the grounds for relief presented in Chapman's habeas petition provides a basis for relief. The state courts' adjudications of the claims presented here were not unreasonable as set out in 28 U.S.C. § 2244(d). We therefore cannot recommend that habeas relief be granted on any of the grounds raised.
Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals for the Third Circuit, at the time a final order denying a habeas petition is issued, the district court judge is required to make a determination as to whether a certificate of appealability (“COA”) should issue. A COA should not issue unless the petitioner demonstrates that jurists of reason would find it to be debatable whether the petition states a valid claim for the denial of a constitutional right.
Here, for the reasons set forth above, we do not believe a reasonable jurist would find the Court to have erred in denying the present petition. Accordingly, we do not believe a COA should issue. Our Recommendation follows.
RECOMMENDATION AND NOW, this 27th day of April, 2023, it is respectfully RECOMMENDED that the petition for a writ of habeas corpus be DENIED. It is FURTHER RECOMMENDED that a certificate of appealability should NOT ISSUE, as we do not believe that Petitioner has demonstrated that reasonable jurists would debate the merits of the substantive claims.
Petitioner may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.
no such letter “forwarded to” or otherwise describing to Chapman's counsel the results of any search of Detective Pawling's residence. To be sure, the page identified as “RR 77” in the exhibits appended to the counseled habeas petition is the first page of the September 13, 2012 letter from Chief Deputy Carmody that we describe above. That letter contains no reference to any search of Detective Pawling's residence. See ECF 15-3 at 28. Rather, another document that Petitioner also appended to the counseled petition, reflects news reporting in August 2013 that Det. Pawling's residence had been searched the previous month (July 2013
) as a result of an investigation into thefts from charitable organizations with which he was involved. See ECF 15-3 at 24-27. This search of Pawling's residence postdated Chapman's trial and therefore could not have been referenced in a letter composed prior to Chapman's trial.