Opinion
Civil Action No. 04-924.
August 13, 2004
REPORT AND RECOMMENDATION
Now pending before this court is a petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution at Mahanoy, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On May 3, 2001, following a jury trial presided over by the Honorable David Savitt of the Philadelphia County Court of Common Pleas, petitioner was convicted of second degree murder, three counts of robbery, three counts of criminal conspiracy, and three counts of carrying a firearm without a license. Specifically, petitioner was convicted of participating in three armed robberies, the third of which culminated in the shooting and killing of Nicholas Sambor. The trial court sentenced petitioner to life in prison without parole, which was to run concurrently with two ten to twenty year consecutive sentences for the two robberies which did not merge with the murder, and three five to ten year consecutive sentences for the conspiracy charges.
Petitioner filed a direct appeal to the Superior Court of Pennsylvania on May 31, 2001, in which he raised the issues which are currently before the court in the instant petition for Writ of Habeas Corpus. The Superior Court issued a memorandum opinion on October 15, 2002, affirming petitioner's sentence. Commonwealth v. Harvey, 815 A.2d 1127 (Pa.Super. 2002). Petitioner filed a request for Allowance of Appeal to the Pennsylvania Supreme Court, which was denied on March 18, 2003. Commonwealth v. Harvey, 820 A.2d 703 (Pa. 2003). On October 6, 2003, the United States Supreme Court denied certiorari. Harvey v. Pennsylvania, 124 S. Ct. 205 (2003).
On March 19, 2004, petitioner filed the instant petition for Writ of Habeas Corpus, alleging the following claims:
(1) Petitioner's convictions must be vacated because they were obtained in violation of his rights to due process of law and an impartial jury from a fair cross-section of the community, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; and
(2) Petitioner is entitled to relief from his convictions because the trial court's redaction of his co-defendant's statement by substituting petitioner's name with the words "we", "one guy", and the like, violated both Gray v. Maryland and Bruton v. United States.
Respondents retort that petitioner's claims are without merit, and thus, petitioner is not entitled to federal relief.
II. STANDARD OF REVIEW
Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for Writ of Habeas Corpus from a state court judgment bears a significant burden. Section 104 of the AEDPA imparts a presumption of correctness to the state court's determination of factual issues — a presumption that petitioner can only rebut by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (1994). The statute also grants significant deference to legal conclusions announced by the state court as follows:
An application for a writ of habeas corpus on behalf of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless adjudication of the claim —
(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 United States Supreme Court, in Williams v. Taylor, 529 U.S. 362, 404-05, 120 S. Ct. 1495 (2000), interpreted the standards established by the AEDPA regarding the deference to be accorded state court legal decisions, and more clearly defined the two-part analysis set forth in the statute. Under the first part of the review, the federal habeas court must determine whether the state court decision was "contrary to" the "clearly established federal law, as determined by the Supreme Court of the United States." As defined by Justice O'Connor, writing for the majority of the Court on this issue, a state court decision can be contrary to Supreme Court precedent in two ways: (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] court on a question of law," or (2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Id. She explained, however, that this "contrary to" clause does not encompass the run-of-the-mill state court decisions "applying the correct legal rule from Supreme Court cases to the facts of the prisoner's case." Id. at 406.
To reach such "run-of-the-mill" cases, the Court turned to an interpretation of the "unreasonable application" clause of § 2254(d)(1). It found that a state court decision can involve an unreasonable application of Supreme Court precedent: (1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407-08. The Court specified, however, that under this clause, "a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410.
III. DISCUSSION OF MERITS
Petitioner's first claim is that he was denied his constitutional rights to due process of law and an impartial jury from a fair cross-section of the community, and thus that his convictions should be vacated. Petitioner argues that there were no aggravating factors to impanel a death qualified jury in his case, and that the intentional exclusion of jurors reluctant to impose the death penalty was a violation of the Fifth, Sixth, and Fourteenth Amendments to the Constitution.
On July 26, 2000, the Commonwealth filed notice of its intent to seek the death penalty under the aggravating circumstance that "the defendant committed a killing while in the perpetration of a felony." 42 Pa. C.S. § 9711(d)(6). Petitioner responded to the Commonwealth's motion just prior to trial, arguing that because someone else had already confessed to the killing, the trial court was obligated to quash the aggravating circumstance. The Commonwealth replied that should petitioner be convicted of the two additional robberies with which he was charged, it would amend its notice of aggravating circumstances to include the fact that "the defendant has a significant history of felony convictions involving the use or threat of violence to the person." 42 Pa. C.S. § 9711(d)(9).
The trial court did not quash the aggravator, but neither did it grant the Commonwealth's motion. Instead, the judge decided to defer that determination until the jury had made a decision as to whether or not the defendant was guilty of murder in the first degree.
Petitioner's first claim for relief has two portions. With regard to the first portion — that petitioner was denied his right to an impartial jury from a fair cross-section of the community — the fact that the jury was death qualified did not violate petitioner's constitutional rights. In Lockhart v. McCree, 476 U.S. 162, 174 (1986), the Supreme Court held that ". . . an extension of the fair cross-section requirement to petit juries would be unworkable and unsound . . ." Because petitioner's claim extends only to the petit jury, and not to the entire venire, he is not entitled to relief. It is of no matter that every juror impaneled was death qualified.
With regard to the second portion of petitioner's claim — that petitioner was denied due process of law — the fact that the jury was death qualified did not violate petitioner's constitutional rights. The Commonwealth is permitted to death qualify a jury in a capital case. This case was properly considered a capital case under Commonwealth v. Buck, 709 A.2d 892, 896 (Pa. 1998), as the minimum requirements were met: there was at least one aggravating factor supported by at least some evidence.
A number of the prerequisites of the § 9711(d)(6) aggravator were established when petitioner confessed to participating in the robbery which culminated in the murder of Nicholas Sambor. In addition, as mentioned above, the Commonwealth planned to amend its notice of aggravating circumstances to include the fact that "the defendant has a significant history of felony convictions involving the use or threat of violence to the person" under § 9711(d)(9), if and when petitioner was convicted of the other two robberies with which he was charged. The Commonwealth is entitled to make such an amendment where, at the time of sentencing, petitioner has been convicted of the type of felonies described in § 9711(d)(9). See Commonwealth v. Reid, 642 A.2d 453, 458 (Pa. 1994); see also Commonwealth v. Buck, 709 A.2d 892, 898, n. 10 (Pa. 1998). As petitioner had already confessed to one of the two additional robberies by the time of his trial, it was highly likely that he would be convicted of both.
In addition, petitioner was not prejudiced by Judge Savitt's decision to allow the jury to be death qualified. In Lockhart, the Supreme Court held that death qualification does not prevent jurors from conscientiously and properly carrying out their sworn duty to apply the law to the facts of the particular case, and thus does not violate the Constitution. 476 U.S. at 184. As there is no inherent unfairness in a death qualified jury, petitioner suffered no harm in having a death qualified jury decide the case against him.
In fact, the death qualified jury acquitted petitioner of first-degree murder, rendering him ineligible to be sentenced to death. Rather, the jury properly convicted petitioner of second degree murder, as he had confessed to participating in the felony murder. Thus, petitioner's constitutional right to due process of law was not violated by the death qualified jury. As such, we must dismiss the habeas petition as to this claim.
Petitioner's second claim is that the admission of his co-defendant's redacted statement violated both Gray v. Maryland and Bruton v. United States, thus rendering petitioner's convictions invalid.
At petitioner's trial, a redacted statement made by petitioner's co-defendant was read into evidence. The redacted portions substituted petitioner's name with the words "we", "one guy", and the like. Petitioner admits that the redacted confession, in and of itself, did not inculpate him, but argues that when combined with his own statement and the testimony of another participant in the robbery and murder, it was evident to the jury that it was petitioner's name that had been redacted.
In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that the admission of the confession of a non-testifying co-defendant which implicated Bruton by name violated Bruton's rights under the confrontation clause. Even though the jury was instructed not to consider the confession as evidence against Bruton, there was a substantial risk that it would do so nevertheless. In the case at bar, petitioner was not implicated by name, and thus the redacted statement did not violate Bruton.
In Richardson v. Marsh, 481 U.S. 200, 206-08 (1987), the Supreme Court rejected the argument to expand Bruton's reach, noting that Bruton was but a "narrow exception" to the "almost inevitable assumption of the law that jurors follow their instructions." The Richardson court drew a line between confessions from co-defendants which act to inculpate the defendant, and those which are only incriminating when pieced together with other admissible evidence at trial. In the case of the latter, the court held that there was no violation of the confrontation clause. See id. Thus, the fact that a confession could be considered inculpatory when linked with other evidence does not amount to a constitutional violation.
In the case at bar, the fact that the jury may have pieced together petitioner's confession, the testimony of a government witness, and the redacted confession of petitioner's co-defendant is of no matter. As noted above, such linking of evidence in the minds of the jurors is permissible under Richardson. See also Gray v. Maryland, 523 U.S. 185 (1998) (holding that an impermissible redacted statement is one which refers directly to someone, often obviously the defendant, and which involves inferences that a jury could make immediately, even if the statement were the first item introduced at trial). The form of redaction used in the instant case replacing petitioner's name with "we", "one guy", and the like — was specifically noted as an acceptable form in Gray: "Question: Who was in the group that beat Stacey? Answer: Me and a few other guys." 523 U.S. at 196 (emphasis added).
Furthermore, even if the redactions had been unconstitutional, petitioner still would not be entitled to federal relief. Petitioner's claim would not have survived harmless error analysis, due to the overwhelming evidence of his guilt. As such, we must dismiss the habeas petition as to this claim and in its entirety.
Therefore, I make the following: