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concluding that there was an absence of facts to demonstrate a presumption of prejudice where there were numerous newspaper articles published about the case and television coverage about the case on local and regional news that spanned about half a year
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CIVIL ACTION NO. 4:CV-07-0173
11-26-2012
KEVIN MARINELLI, Petitioner v. JEFFREY BEARD, Commissioner, Pennsylvania Department of Corrections; LOUIS B. FOLINO, Superintendent of the State Correctional Institution at Greene; and FRANKLIN J. TENNIS, Superintendent of the State Correctional Institution at Rockview, Respondents
(Judge Mariani)
THIS IS A CAPITAL CASE
MEMORANDUM
I. INTRODUCTION
Before the Court is a counseled petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, on behalf of Petitioner, Kevin Marinelli ("Marinelli"), an inmate currently incarcerated in the Greene State Correctional Institution, Waynesburg, Pennsylvania. Marinelli challenges his 1997 conviction and sentence in the Court of Common Pleas of Northumberland County, Pennsylvania. For the reasons set forth below, and after careful consideration of his petition, this Court concludes that Petitioner's claims are, either procedurally defaulted or, without merit.
II. FACTUAL AND PROCEDURAL HISTORY
On May 18, 1995, Marinelli was found guilty of first degree murder, robbery, conspiracy to commit robbery, burglary, theft by unlawful taking, receiving stolen property and aggravated assault, following a jury trial in the Court of Common Pleas of Northumberland County, Pennsylvania. The Pennsylvania Supreme Court summarized the relevant facts as follows:
The testimony at appellant's trial established the following facts. On the evening of April 26, 1994, appellant and his brother, Mark Marinelli (Mark), and Kirchoff met at appellant's apartment to plan a burglary of the residence of Conrad Dumchock (Dumchock), whom Mark knew to have stereo equipment. The three men obtained weapons, disguises, and gloves in preparation for the burglary, and proceeded to Dumchock's home in Kulpmont.See Commonwealth v. Marinelli, 547 Pa. 294, 306-308 690A.2d 203, 209-210 (1997) ("Marinelli-1"). The penalty phase commenced the following day, May 19, 1995. During the penalty phase, the jury found two aggravating circumstances: (1) Marinelli committed the killing while in the perpetration of a felony, see 42 Pa. Cons. Stat. Ann. § 9711(d)(6); and (2) Marinelli committed the offense by means of torture, see 42 Pa. Cons. Stat. Ann. § 9711(d)(8). The jury also found two mitigating circumstances: (1) Marinelli had no significant history of prior convictions, see 42 Pa. Cons. Stat. Ann. § 9711(e)(1); and (2) other evidence in mitigation concerning the character and record of Marinelli, see 42 Pa. Cons. Stat. Ann. § 9711(e)(8). The jury concluded that the aggravating circumstances outweighed the mitigating circumstances and returned a verdict of death, see 42 Pa. Cons. Stat. Ann. § 9711(c)(1)(iv).
Dumchock was home alone and had just spoken to his sister and brother-in-law on the telephone for forty-five minutes. The Marinelli brothers and Kirchoff arrived at Dumchock's home and initially had difficulty gaining entry. Observing that Dumchock's car was parked outside his house and concerned about the possibility of being discovered, the threesome left Dumchock's residence but returned a few minutes later to again attempt to enter. Eventually, they broke a small window in the kitchen door and entered the residence.
Upon entering Dumchock's residence, appellant immediately proceeded to the second floor, where he encountered Dumchock. When Dumchock requested that appellant leave his home, appellant
struck Dumchock's face with his gun and yelled for assistance from Mark and Kirchoff.
The appellant and Kirchoff continued to beat Dumchock, despite Dumchock's pleading with them to take what they wanted and leave him alone. The three rummaged through Dumchock's home looking for items to take and asking Dumchock where his guns and money were located. When Dumchock would moan or not answer, appellant would hit Dumchock again.
Mark and Kirchoff departed Dumchock's home after they had loaded the items they wished to steal, while appellant remained in the residence with Dumchock. Appellant then shot Dumchock twice in the head, with one shot into Dumchock's eye and the other directly between Dumchock's eyes. Appellant then ran out of Dumchock's house and exclaimed, "Let's get out of here!"
The threesome returned to Kirchoff's home and divided the items stolen from Dumchock. A short while later, the Marinelli brothers returned to Dumchock's house and took a motorcycle from the victim's porch.
Appellant attempted to start the motorcycle on compression, with Mark following in a car. They were observed crossing the main road in Kulpmont heading toward the other side of town. When the motorcycle would not start, appellant abandoned it.
On the morning following the killing, Clyde Metzger, who was waiting for Dumchock to drive him to work, entered the victim's home and discovered Dumchock's stereo equipment had been disarranged and Dumchock's dog was shaking. Metzger called out to Dumchock but received no response. Metzger became concerned and left Dumchock's home, and headed to the police station. On his way there, Metzger encountered a Kulpmont Police Sergeant Detective Robert Muldowney, and related to him the circumstances he had found.
Sergeant Muldowney entered Dumchock's home, noting that the storm door was open, the inside door was propped open with a chair, and the glass had been broken from a window in the door. Inside the house, Sergeant Muldowney discovered that telephone cords had been cut. Upstairs, Sergeant Muldowney discovered the victim's cold body lying at the top of the stairway landing. Sergeant Muldowney noted that Dumchock's bedroom was disheveled, with drawers removed from the dresser and various items strewn on the victim's bed. Pennsylvania State Police and County Coroner Richard Ulrich were called to the scene. The victim's sister also arrived at his house and noted that Dumchock's motorcycle was missing. The motorcycle was later recovered hidden in some brush where it had been abandoned. Dumchock's brother-in-law informed police that guns, tools, and electronic equipment were also missing from Dumchock's residence. One of Dumchock's friends, David Dormer, was brought to Dumchock's residence to assist police in determining which stereo equipment, as well as liquor, was missing.
On May 25, 1994, Mark Marinelli's girlfriend, Deeann Chamberlain, turned over to Coal Township Police certain weapons which Mark had brought to her home. These weapons were later identified as having belonged to the victim. County Coroner Ulrich was at the Coal Township police station when Ms. Chamberlain turned over these weapons. The coroner connected the items with the Dumchock killing, and notified the District Attorney and State Police. Further, Ms. Chamberlain allowed Shamokin Police to come to her home and remove other items Mark had left there, including a telephone answering machine. Coroner Ulrich recognized the telephone answering machine as being of the type reported missing from Dumchock's house, and he notified the State Police.
Additionally, a friend of appellant, Nathan Reigle, was questioned by police about the Dumchock murder. Reigle stated to police that appellant had bragged about how he had killed Dumchock. A search of appellant's residence by police recovered a number of items, including stereo equipment, later identified as property belonging to the victim. After being questioned by police, appellant gave police
both an oral and a taped confession as to his involvement in the Dumchock killing.
On August 11, 1995, the trial court formally imposed a sentence of death for first degree murder. Additionally, Marinelli was sentenced to consecutive terms of imprisonment of ten (10) to twenty (20) years on the robbery conviction; five (5) to ten (10) years on the conspiracy to commit robbery conviction; and ten (10) to twenty (20) years on the burglary conviction. No post sentence motions were filed.
Represented by Attorney James. J. Rosini, Petitioner filed a timely direct appeal to the Pennsylvania Supreme Court, raising four (4) claims for relief. Specifically, Petitioner presented the following issues for review:
The appeal of a death sentence is directly to the Pennsylvania Supreme Court rather than to the Superior Court. See 42 Pa. C.S.A. § 9711(h).
I. Is the verdict contrary to the evidence?(Doc. 27-2, App. I, Brief of Appellant at pp. 6-8).
II. Is the verdict contrary to the weight of the evidence?
III. Is the verdict as to the sentence of death invalid due to the Commonwealth's failure to prove torture?
IV. Did the trial court commit error when it:
1. Improperly granted Commonwealth's motion to consolidate?
2. Improperly denied defendant's motion to sever?
3. Improperly denied defendant's motion for changes of venue and/or venire said motion made both before and after co-defendant Mark Marinelli's plea of guilty?
4. Improperly denied defendant's motion to suppress statements made by defendant to police in violation of constitutional right to a speedy arraignment?
5. Improperly denied defendant's motion to suppress statements made by defendant to police in violation of right to counsel?
6. Failed to sustain defense counsel's objection to a death qualified jury?
7. Improperly permitted color and black and white photographs of the victim to be admitted when the prejudicial impact outweighed any probative or evidentiary value?
8. Improperly permitted a videotape depicting the body of the victim to be admitted when the prejudicial impact outweighed any probative or evidentiary value?
9. Improperly permitted a floor plan depicting the body of the victim to be admitted when the prejudicial impact outweighed any probative or evidentiary value?
10. Improperly permitted greatly enlarged photographic slides depicting the body of the victim to be admitted when the prejudicial impact outweighed any probative or evidentiary value?
11. Improperly denied defendant's motion for mistrial after counsel for co-defendant referred to defendant by name in his opening statement?
12. Improperly denied defendant's motion for severance after counsel for co-defendant referred to defendant by name in his opening statement?
13. Failed to provide defendant with Commonwealth witness Nathan Reigle's juvenile record?
14. Improperly denied defendant's motion to prevent Commonwealth witness Mark Marinelli from presenting testimony known by the Commonwealth to be untrue/untrustworthy?
15. Improperly admitted a drawing of crime scene drawn 5/24/94 by Commonwealth witness Mark Marinelli?
16. Improperly denied defendant's in chambers motion for mistrial after Commonwealth witness and co-defendant, Mark Marinelli, demanded, in the presence of the jury, to be permitted to stop testifying and that his testimony was not truthful?
17. Improperly denied defendant's motion for mistrial after Commonwealth witness, Mark Marinelli, while sequestered, was permitted to confer with counsel in the sheriffs holding cell, in the middle of his testimony, for over two (2) hours, outside the court's presence?
18. Improperly permitted Commonwealth witness Pennsylvania State Police Trooper Richard Bramhall to testify using improperly redacted statements made by co-defendant?
19. Failed to properly charge the jury on aggravating circumstance of torture?
20. Failed to charge the jury on voluntary intoxication?
21. Improperly charged the jury on degrees of murder by giving one instruction for first degree murder for defendant and a different instruction for first degree murder for co-defendant?
22. Improperly charged the jury on degrees of murder by giving an instruction for second degree murder for co-defendant to be used if defendant was found guilty of first degree murder?
23. Improperly permitted photographs and greatly enlarged slides, including autopsy, to be admitted during the penalty phase when the prejudicial impact outweighed any probative or evidentiary value?
24. Improperly denied defendant's motion to severance before summation?
25. Improperly denied defendant's motion for mistrial before summation?
The Pennsylvania Supreme Court affirmed the judgment of sentence upon direct appeal in an opinion dated February 25, 1997. See Marinelli-1, supra.
On July 25, 1997, Robert Dunham, Esquire from the Center for Legal Education Advocacy & Defense Assistance ("CLEADA"), filed a petition for writ of certiorari on behalf of Marinelli in the United States Supreme Court. (Doc. 27-5, App. L, Petition for Writ of Certiorari). Petitioner submitted the following grounds for relief:
I Does the admission of a non-testifying codefendant's confession that contains references to another participant in a joint trial violate the Confrontation Clause and this Court's holdings in Bruton v. United States, 391 U.S. 123 (1968) and Richardson v. Marsh. 481 U.S. 200 (1987) when those references are redacted and replaced with the term "the other guy," but the use of the term "the other guy" unmistakably refers to the defendant?(Doc. 27-5, App. L, Petition for Writ of Certiorari at p. ii).
II. Should this Court grant certiorari to address the conflicting resolutions by the United States Courts of Appeal and the state courts concerning the question reserved by this Court in Richardson v. Marsh, 481 U.S. 200 (1987), whether the Confrontation Clause is violated by the admission at trial of a non-testifying co-
defendant's "confession in which the defendant's name has been replaced with a symbol or neutral pronoun?"
III. In the alternative, should this Court hold this petition for writ of certiorari pending its resolution of similar issues for which it granted certiorari in Gray v. Maryland, - U.S. --, 1997 WL 195045 (U.S. June 6, 1997)?
On March 23, 1998, the United States Supreme Court denied Marinelli's petition for writ of certiorari. Marinelli v. Pennsylvania, 523 U.S. 1024 (1998).
Following disposition of the direct appeal, on April 28, 1998, Petitioner filed a timely, pro se petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§9541 et seq. The following day, the trial court again appointed Attorney Dunham to represent Marinelli in his petition for collateral relief. On October 13, 1998, Attorney Dunham filed an Amended PCRA petition on behalf of Marinelli. (Doc. 30-4, App. O, Amended PCRA Petition, Commonwealth v. Marinelli, No. 94-451 (Northumberland. County, Oct. 13, 1998)). In that petition, Marinelli raised claims relating to the following areas: (1) pretrial issues; (2) juror issues; (3) trial issues; (4) penalty phase issues; and (5) sentencing issues. Id. Following an evidentiary hearing on the Amended PCRA petition, from January 24, 2000 through January 27, 2000, newly appointed counsel, Jerome Nickerson, from the Defender Association of Philadelphia, filed a Second Amended PCRA petition. (Doc. 27-16, App. P, Second Amended Petition). The Second Amended Petition added the following claim:
Petitioner is entitled to a new trial because the Commonwealth withheld evidence that was exculpatory at guilt and sentencing in violation of Brady v. Maryland and elicited testimony which it knew or should have known to be false in violation of Giglio v. United States.Id. By Opinion and Order dated May 15, 2001, the PCRA court denied the PCRA petition. (Doc. 42, Ex. A, Opinion, Commonwealth v. Marinelli, No. 94-451 (Northumberland. County, May 15, 2001).
Marinelli, represented by Billy H. Nolas, Esquire, from the Defender Association of Philadelphia, filed a timely appeal to the Pennsylvania Supreme Court, raising the following issues:
I. Should Appellant's death sentence be vacated because he was denied an impartial capital sentencing jury and, as a result, consideration of mitigating evidence was restricted, in violation of the Sixth, Eighth, and Fourteenth Amendments and Article I, Sections 9 and 13?(Doc. 30-11, App. Q, Initial Brief of Appellant).
II. Is Appellant entitled to a new sentencing proceeding because the court's penalty phase instructions improperly shifted the burden of persuasion from the Commonwealth to the defendant and violated the presumption of life afforded defendants in capital sentencing proceedings, in violation of the Sixth, Eighth and Fourteenth Amendments?
III. Is Appellant entitled to a new trial because juror Clara Iwanski was a former client of an Assistant District Attorney involved in this case?
IV. Did the admission in this joint trial of the non-testifying co-defendant's confession, where the term "the other guy" unmistakably referred to Appellant, violate the Sixth, Eighth and Fourteenth Amendments?
V. Should Appellant's death sentence be vacated because the sentencing jury was never instructed that, if sentenced to life, he would be statutorily ineligible for parole?
VI. Was counsel ineffective in misapprising Appellant of his right to testify to personal background mitigating circumstances without being subject to cross-examination on the circumstances of the offense, and was Appellant's waiver of his right to testify in mitigation was invalid, in violation of the Sixth, Eighth and Fourteenth Amendments?
VII. Is relief appropriate because the court failed to properly instruct on the nature and use of aggravating and mitigating factors, in violation of the Sixth, Eighth and Fourteen Amendments?
VIII. Is Appellant entitled to the production of the remaining voir dire transcripts and restoration of his right to direct appeal, nunc pro tunc, because these notes of testimony of the voir dire proceedings were unavailable to him, in violation of due process under the Fourteenth Amendment?
IX. Should Appellant's death sentence be vacated because the Pennsylvania Supreme Court failed to provide him meaningful proportionality review in violation of 42 Pa.C.S. 9711 (h)(3)(iii) and Pennsylvania and Federal Constitutional Law?
X. Was the "torture" instruction, especially in conjunction with the prosecutor's argument, unconstitutionally vague, overbroad, arbitrary and capricious, in violation of the Sixth, Eighth and Fourteenth Amendments?
XI. Should Appellant's conviction and death sentence be vacated because they were obtained by inflammatory, unscientific, unreliable and misleading "expert" testimony?
XII. Is Appellant entitled to a new trial and should his death sentence be vacated because of errors under Brady v. Maryland and its progeny?
XIII. Was counsel ineffective at capital sentencing?
On November 25, 2002, the Pennsylvania Supreme Court issued its opinion in connection with Marinelli's appeal from the denial of his PCRA petition. Commonwealth v. Marinelli, 570 Pa. 622, 810 A.2d 1257 (Pa. 2002) ("Marinelli-2")(Doc. 27-9, App. R). The Court affirmed in part, and reversed in part, the order denying post-conviction relief, and remanded the case for further proceedings. See Marinelli-2, supra. Specifically, the Supreme Court concluded that the lower court had erred in its determination that claims I, II, III, V, VI, VII, VIII and IX were waived. Id. The case was remanded for the PCRA court to consider those eight (8) issues. Id. With respect to the remaining issues, the Supreme Court determined that claim IV ("Did the admission in this joint trial of the non-testifying co-defendant's confession, where the term "the other guy" unmistakably referred to Appellant, violate the Sixth, Eighth and Fourteenth Amendments?") and claim X ("Was the 'torture' instruction, especially in conjunction with the prosecutor's argument, unconstitutionally vague, overbroad, arbitrary and capricious, in violation of the Sixth, Eighth and Fourteenth Amendments?") were previously litigated on direct appeal and therefore not appropriate for consideration on collateral review. Id. The Court rejected Marinelli's remaining three (3) claims (XI, XII and XIII) as meritless. Id.
On remand, the PCRA court concluded that all eight of Marinelli's claims (I, II, III, V, VI, VII, VIII and IX) were meritless and entered an order on March 30, 2004 denying post-conviction relief. (Doc. 42, Ex. B, Memorandum Opinion and Order). Marinelli filed an appeal to the Pennsylvania Supreme Court, challenging the lower court's determination that his eight (8) claims were meritless. (Doc. 30-13, App. T, Initial Brief of Appellant (After Remand).
In a November 7, 2006 Opinion, the Pennsylvania Supreme Court affirmed the order of the PCRA court order. Commonwealth v. Marinelli, 589 Pa. 682, 910 A.2d 672 (2006), reargument denied (Jan 24, 2007) ("Marinelli-3") (Doc. 27-11, App. W, Opinion).
By Order dated January 24, 2007, Marinelli's application for reargument was denied.
On January 30, 2007, Marinelli filed the instant action (Doc. 1). On August 10, 2007, Marinelli filed his petition for writ of habeas corpus, in which he alleges eighteen (18) claims for relief. (Doc. 9, Petition). Specifically, those claims are set forth as follows:
I. Petitioner's convictions and death sentence should be vacated because his due process and confrontation rights were violated under Bruton v. United States and its progeny;
II. Petitioner's convictions and death sentences should be vacated because his due process rights were violated under Brady v. Maryland and its progeny;
III. Petitioner's convictions and death sentence should be vacated because his statements to police were obtained in violation of his Sixth Amendment right to counsel and should have been suppressed;
IV. Petitioner's convictions and death sentence should be vacated because they were obtained with unscientific, unreliable and misleading "expert" testimony;
V. Petitioner's convictions and death sentence should be vacated because the trial court prevented petitioner from effectively cross-examining Commonwealth witness Reigle;
VI. Petitioner's convictions and death sentence should be vacated because the Commonwealth presented evidence, from Mark Marinelli, that it knew to be unreliable;
VII. Petitioner's murder conviction and death sentence should be vacated because the guilt phase murder instructions violated due process;
VIII. Petitioner's convictions and death sentence should be vacated because he was denied his due process and Sixth Amendment rights to an impartial jury;
IX. Petitioner's convictions and death sentence should be vacated because his waiver of his right to testify was invalid;
X. Petitioner's death sentence should be vacated because trial counsel failed to reasonably investigate, develop and present mitigating evidence;
XI. Petitioner's death sentence should be vacated because the jury failed to give effect to mitigating evidence;
XII. Petitioner's death sentence should be vacated because of unconstitutional jury instructions and prosecutorial argument regarding torture;
XIII. Petitioner's death sentence should be vacated because the penalty phase instructions shifted the burden of persuasion from the Commonwealth to Petitioner and violated the presumption of life;
XIV. Petitioners' death sentence should be vacated because the sentencing jury was never instructed that, if sentenced to life, he would be ineligible for parole;
XV. Petitioners' death sentence should be vacated because the jury instructions' definition of mitigating
circumstances prevented the jury from giving full effect to mitigation;(Doc. 9, Amended Petition). On May 12, 2008, a response to the petition was filed, and supporting exhibits were filed on May 19, 2008, June 6, 2008 and December 17, 2009). (See Docs. 26, 27, 30, 42). Marinelli filed his reply brief on July 31, 2008. (Doc. 36). This matter is ripe for disposition.
XVI. Petitioner's death sentence should be vacated because the Pennsylvania Supreme Court failed to provide meaningful proportionality review;
XVII. Petitioner's convictions and death sentence should be vacated because of ineffective assistance of counsel at trial and on direct appeal; and
XVIII. Petitioner's convictions and death sentence should be vacated because of the cumulative prejudicial effect of the errors described in this petition.
III. STANDARDS OF REVIEW
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), went into effect and amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. A habeas corpus petition pursuant to § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68.
A. Exhaustion and Procedural Default
Habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).
A state prisoner exhausts state remedies by giving the "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Respect for the state court system requires that the petitioner demonstrate that the claims in question have been "fairly presented to the state courts." Castille v. Peoples, 489 U.S. 346, 351 (1989). To "fairly present" a claim, a petitioner must present its "factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); see also Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented when a petitioner presents the same factual and legal basis for the claim to the state courts). While the petitioner need not cite "book and verse" of the federal Constitution, Picard v. Connor, 404 U.S. 270, 278 (1971), he must "give the State 'the opportunity to pass upon and correct' alleged violations of its prisoners' federal rights" before presenting those claims here, Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard. 404 U.S. at 275).
A petitioner bears the burden of demonstrating that he has "fairly presented" his claims to the state's highest court, either on direct appeal or in a state post conviction proceeding. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). Further, pursuant to Pennsylvania Supreme Court Order 218, effective May 9, 2000, issues presented to the Pennsylvania Superior Court are considered exhausted for the purpose of federal habeas corpus relief under section 2254. See In re: Exhaustion of States Remedies in Criminal and Post-Conviction Relief Cases, No. 218, Judicial Administration Docket No. 1 (May 5, 2000) (per curiam).
Under this exhaustion rule, a federal court must dismiss without prejudice habeas petitions that contain any unexhausted claims. Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004). This dismissal requirement does not apply, however, in cases where the state courts would not consider the unexhausted claims because they are procedurally barred by state law. Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996). However, in that situation the petitioner must still overcome the concomitant doctrine of procedural default. Id. at 683.
The doctrine of procedural default bars federal habeas relief when a state prisoner has defaulted on his federal claims in state court pursuant to an independent and adequate state procedural rule. Id. For example, failure to present federal habeas claims to the state courts in a timely fashion results in procedural default. See O'Sullivan, 526 U.S. at 848 (citing Coleman v. Thompson. 501 U.S. 722, 731-32 (1991)). Like a state prisoner who has failed to exhaust his state remedies, "a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Coleman, 501 U.S. at 732. The doctrine of procedural default therefore ensures that a state prisoner cannot evade the exhaustion requirement of § 2254 by defaulting his federal claims in state court. Id.
However, a federal habeas court can review the merits of procedurally defaulted claims if the petitioner demonstrates either cause for the procedural default and actual prejudice, or that a fundamental miscarriage of justice will result if the court does not review the claims. See McCandless, 172 F.3d at 260; Coleman, 501 U.S. at 750-51; Caswell v. Ryan, 953 F.2d 853, 861-62 (3d Cir. 1992). To demonstrate "cause" for a procedural default, the petitioner must show that some objective external factor impeded petitioner's efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate "actual prejudice," the petitioner must show "not merely that the errors ... created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates that failure to review the claim will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). The miscarriage of justice exception applies only in extraordinary cases where a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. "'[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). To establish such a claim, a petitioner must "support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). Further, actual innocence "does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty." Id- at 329.
Respondents challenge the following claims as being unexhausted and procedurally defaulted.
Claim III
Petitioner's convictions and death sentence should be vacated because his statements to police were obtained in violation of his Sixth Amendment right to counsel and should have been suppressed.
In addition to the Sixth Amendment violation, Petitioner also includes the claim that he was denied his Sixth and Fourteenth Amendment right to effective assistance of counsel at trial and on direct appeal, when counsel failed to effectively litigate the suppression issue. (See Doc. 18-2, Memorandum of Law at p. 45). Respondents submit that because the issue of ineffective assistance of counsel, in connection with the suppression issue, was never presented to the Pennsylvania state courts, Marinelli is now procedurally barred from raising this claim before the Pennsylvania courts, and has procedurally defaulted the claim, preventing it from federal review. For the reasons set forth below, the Court agrees.
On direct appeal to the Pennsylvania Supreme Court, Marinelli raised the following issues regarding his Sixth Amendment right to counsel:
IV. Did the trial court commit error when it:(Doc. 27-2, App. I, Brief of Appellant at pp. 13, 17). The Pennsylvania Supreme Court addressed these issues as trial court errors. (See Doc. 27-4, App K, Marinelli-1 atpp 15-18).
4. Improperly denied Defendant's motion to suppress statements made by Defendant to police in violation of Constitutional right to a speedy arraignment?
5. Improperly denied Defendant's motion to suppress statements made by Defendant to police in violation of right to counsel?
Petitioner next raises his Sixth Amendment issue as a "preserved claim" in his Initial Brief of Appellant (After Remand), filed in the Pennsylvania Supreme Court on January 10, 2005. (Doc. 30-13, App. T, Initial Brief of Appellant (After Remand) at pp. 90-91). Petitioner's issue reads as follows:
Preserved Claim F. Appellant's conviction and death sentence are unconstitutional under Michigan v. Jackson, 475 U.S. 625 (1986) and related precedents.Id. However, within his discussion of the claim, Petitioner makes the following statement: "Moreover, counsel was ineffective by failing to appropriately argue this claim on direct appeal". Id. at p. 91. In addressing Petitioner's Sixth Amendment claim, the Pennsylvania Supreme Court found the following:
In Part III of his Brief, Appellant raised six so-called "Preserved Claims", which were already decided by this Court" but were included in the brief "to avoid any suggestion he had waived them" (Brief of Appellant at v-vi, 49-91). In particular, Appellant argues that: (1) the redaction of Kirchoff's incriminating statement was constitutionally inadequate; (2) the trial court's torture instruction was unconstitutionally vague and overbroad; (3) the expert testimony of forensic pathologist Isadore Mihalakis, M.D., which the Commonwealth presented, was unscientific, unreliable, and misleading; (4) the Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), and its progeny; (5) trial counsel was ineffective for failing to investigate, develop, and present mitigating evidence; and (6) the police violated Appellant's right to counsel when they interrogated him in the absence of counsel.(Doc. 27-11, App. W, Marinelli -3 at p. 8, fh 12)(emphasis added).
We considered the merits of each of these claims on either direct or collateral review of Appellant's convictions and Judgments of Sentence. See Commonwealth v. Marinelli, 690 A.2d at 220-21 (Pa. 1997) (denying first claim on its merits); id. (second claim); Commonwealth v. Marinelli, 810 A.2d 1257, 1266-70 (Pa. 2002) (third claim); id- At 1270-74 (fourth claim); id. At 1274-77 (fifth claim); Marinelli, 690 A.2d at 215-16 (sixth claim). Therefore, by Appellant's own concession, these claims are previously litigated. See 42 Pa.C.S. § 9544(a)(2). Appellant is thus not entitled to relief on these claims.
Although the issue of effective assistance of counsel was brought to the attention of the Pennsylvania Supreme Court on appeal from the PCRA remand decision, the issue was never presented to the PCRA court. As such, the issue is procedurally defaulted. To the extent that Petitioner references that this issue was raised in a separate petition for writ of habeas corpus, filed with the Pennsylvania Supreme Court, (see doc. 18-2, Memorandum of Law at p. 48), no petition for writ of habeas corpus has been filed with this court as an exhibit, and any attempt to obtain a copy from the Pennsylvania Supreme Court was fruitless, as communication with the Pennsylvania Supreme Court revealed that such document no longer exists with the Court. Moreover, with respect to Petitioner's argument that the Pennsylvania Supreme Court denied his ineffective assistance of counsel claim as "previously litigated", (see doc. 36, Petitioner's reply at p. 4), it is apparent from the Court's opinion that only the Sixth Amendment claim was determined to be previously litigated. As such, the ineffective assistance of counsel claim in connection with his Sixth Amendment right to counsel claim remains unexhausted.
Should Petitioner be able to produce such document to the Court, he has the remedy of a motion for reconsideration of this Court's analysis regarding his ineffective assistance of counsel claim.
As discussed above, a claim is procedurally defaulted if the petitioner failed to exhaust his state court remedies and is barred from presenting his claim to the state courts due to an independent and adequate state procedural rule. Coleman, 502 U.S. at 732. Marinelli's claim relating to counsel's ineffectiveness in pursuing his Sixth Amendment claim is unexhausted because he never presented it to the state courts, either on direct appeal or collateral attack. However, a new state habeas petition would be deemed time-barred under Pennsylvania law, see 42 Pa. Cons. Stat. Ann. § 9545(b) (requiring the filing of any petition for post conviction relief, including a second or successive petition, within one year of the date the judgment becomes final), and thus exhaustion is excused, but the claim is deemed procedurally defaulted. In order to have the Court consider the merits of his claim, Marinelli must show "cause and prejudice" or a "fundamental miscarriage of justice" to excuse default. Petitioner has not alleged a finding of cause and prejudice and/or miscarriage of justice sufficient to excuse the procedural default. Consequently Petitioner's claim that counsel was ineffective for failing to pursue his Sixth Amendment claims is dismissed, without consideration on the merits. Petitioner's claim that his convictions and death sentence should be vacated because his statements to police were obtained in violation of his Sixth Amendment right to counsel and should have been suppressed, will proceed on the merits.
The time period for filing a second PCRA petition has expired. See 42 Pa. Cons. Stat. Ann. § 9545(b)(1) (setting a one year limitations period). Marinelli raises no argument, and the record suggests no possibility, that his claim falls within any exception to the limitations period for filing a petition under the PCRA. See id. (permitting petitions to be filed more than one year after judgment if the failure to raise the claim is attributable to government interference, the facts underlying the claim could not have been ascertained previously, or the claim involves rights newly recognized and retroactively applied by the Supreme Court).
Claim V
Petitioner's convictions and death sentence should be vacated because the trial court prevented Petitioner from effectively cross-examining Commonwealth witness Reigle.
Petitioner claims that his due process and Sixth Amendment confrontation rights were violated when the trial court denied trial counsel's request that the defense be allowed to inspect Reigle's juvenile record; informed trial counsel only of some limited information about that record that the trial court gleaned from in camera inspection; and restricted counsel's cross-examination regarding that record to the fact of Reigle being on probation. (Doc. 18-2, Memorandum of Law at p. 69).
Petitioner presented this issue on direct appeal, as follows:
IV. Did the trial court commit error when it:(Doc. 27-2, App. I, Brief of Appellant at pp. 25, 26). His supporting argument contained the following:
13. Failed to provide Defendant with Commonwealth Witness Nathan Reigle's juvenile record?
Nathan Reigle was a witness at the Preliminary Hearing of Appellant and he was expected to and did testify at trial. It was understood by the defense that Nathan Reigle had an extensive juvenile record and was on probation. On April 18, 1995, Appellant filed a motion to be provided with the juvenile record Nathan Reigle.Id. The Pennsylvania Supreme Court addressed the issue in the following manner:
A defendant is permitted access to the juvenile record of a Commonwealth witness to determine if there is anything in the witness' record which would indicate that the witness might be biased against the defendant and in favor of the prosecution .. . Appellant was not permitted access to the witness' juvenile record. Appellant was therefore unable to effectively cross-examine the witness in violation of the Confrontation Clause.
Next, appellant contends that he was unable to effectively cross examine prosecution witness Nathan Reigle, in violation of his constitutional rights under the Confrontation Clause, because the trial court denied his request to have the Commonwealth provide Reigle's juvenile record . . . Nathan Reigle's juvenile record was disclosed by the trial court to counsel for both defendants, including the fact that Reigle was currently on juvenile probation. Further, Reigle's juvenile probationary status and possible bias or agreements with the(See Doc. 27-4, App K, Marinelli-1 at pp 24-25).
prosecution were brought out at trial by the Commonwealth. There is thus no merit to appellant's contention that he was denied an opportunity to confront the prosecution's witness.
Appellant relies on both Davis v. Alaska, 415 U.S. 302, 94 S.Ct. 1105, 39 L. Ed. 2d 347 (1974), and Commonwealth v. Simmons, 521 Pa. 218, 555 A.2d 860 (1989), but does not specify whether his objection is under the United States Constitution, the Pennsylvania Constitution, or both.
Petitioner, however, argues that the Pennsylvania Supreme Court failed to address the actual claim presented on direct appeal, that is, "that the trial court's in camera inspection was insufficient and that actual access to the record by the defense was required. Since the state court did not address the actual claim, habeas review is de novo." (Doc. 18-2, Memorandum of Law at p. 72). The Court finds this argument unpersuasive.
Marinelli never presented a due process challenge or alleged that the trial court's in camera inspection was insufficient on direct appeal. Instead, his argument dealt with the issue of whether he was afforded the opportunity to effectively cross-examine Reigle. Moreover, Marinelli never asserted on appeal in state court that he should have been permitted to impeach Reigle with his adjudication for a crimen falsi offense. As such, these claims cannot now be entertained, as they are procedurally defaulted. Because Marinelli offers no explanation to excuse the default, such challenges will be dismissed without consideration on the merits.
Claim VI
Petitioner's convictions and death sentence should be vacated because the Commonwealth presented evidence, from Mark Marinelli, that it knew to be unreliable.
Petitioner claims that when Mark Marinelli failed a polygraph, the Commonwealth found his testimony to be too unreliable to justify a third degree murder plea bargain and, instead, offered only a plea to second degree murder with a life without parole sentence. (Doc. 9, Amended Petition at p. 63). Petitioner further claims that the Commonwealth, however, then presented this testimony, and the jury was not allowed to learn that the Commonwealth deemed the testimony too unreliable to justify a third degree plea bargain. Moreover, Petitioner argues that the Commonwealth stressed the harshness of the second degree/life-without-parole deal, and the jury was not allowed to learn that this deal came about only after the earlier deal was withdrawn when Mark failed the polygraph. Id- Thus, Petitioner claims that these circumstances violated Petitioner's due process and Eighth Amendment rights.
On Appeal to the Pennsylvania Supreme Court, Petitioner presented this issue as follows:
IV. Did the trial court commit error when it:(Doc. 27-2, App. I, Brief of Appellant at p. 26). His argument in support contained, in relevant part, the following:
14. Improperly denied Defendant's motion to prevent Commonwealth witness Mark Marinelli from presenting testimony known by the Commonwealth tot be untrue/untrustworthy?
On May 26, 1994, the Commonwealth offered co-defendant, Mark Marinelli a plea to third degree murder on the condition that he pass a polygraph test. He did not pass and the offer was withdrawn. On April 20, 1995, co-defendant Mark Marinelli entered into a plea agreement for second degree murder/life in prison without parole in exchange for his testimony for the Commonwealth.Id. at pp. 26-28. In treating the issue solely as a claim of trial court error, the Pennsylvania Supreme Court stated:
A prosecutor has a duty to seek justice, not just to convict. A prosecutor also has an "affirmative and continuing duty to disclose exculpatory information to the defendant and to correct false testimony of a witness." ... In the instant case the Commonwealth withdrew its original plea offer to co-defendant Mark Marinelli based on his failure of a polygraph test, only later to have him testify to the same information they considered unreliable in making a deal. Mark Marinelli's testimony was key to the Commonwealth's case. . . It is likely that Mark Marinelli's testimony affected the judgment of the jury. Because the Commonwealth presented a witness they knew or should have known was unreliable and did not disclose this to the factfinder, a new trial is required.
In his next argument, appellant asserts that the trial court improperly denied his motion to prevent Mark from presenting testimony known to the Commonwealth to be untrue and/or untrustworthy. Appellant contends that the Commonwealth knew Mark's testimony was(See Doc. 27-4, App K, Marinelli-1 at p. 26).
untrustworthy because he failed to pass a polygraph test, passage of which was a condition of Mark's entry of a guilty plea to third degree murder. Appellant asserts that when Mark did not pass this polygraph test, the Commonwealth later entered a deal with Mark whereby he entered a guilty plea to second degree murder/life imprisonment, without parole, in exchange for his testimony.
The issue as to Mark's testimony was one of credibility. The results of the polygraph examination taken by Mark would not be admissible into evidence because of their lack of scientific accuracy.
Petitioner argues that the Pennsylvania Supreme Court "misses the point of this claim, which is that the prosecution knew Mark's testimony was unreliable", because, "in light of the actual claim, the inadmissibility of the polygraph makes the prosecution's conduct even worse, because the defense had no way to show the jury that the prosecution knew Mark to be unreliable." (See Doc. 18-2, Memorandum of Law at p. 78) (emphasis in original). The Court finds no merit to Petitioner's argument. In connection with the above issue, the Pennsylvania Supreme Court addressed Petitioner's issue that the trial court improperly denied Petitioner's in-chambers motion for mistrial, made after Mark, while on the witness stand and in the presence of the jury, demanded to stop testifying and indicated that his testimony was untruthful. (See Doc. 27-4, App K, Marinelli-1 at pp. 27-28). In addressing this claim, the Supreme Court found that:
When Mark's testimony resumed, each party's counsel had a opportunity to question him as to his outburst and the truthfulness of his testimony, and Mark indicated that he had not been lying during his testimony prior to his outburst... It was then up to the jury to determine the credibility of Mark's testimony in light of his outburst.Id. Thus, it is apparent from the Pennsylvania Supreme Court's opinion, that the issue of the admissibility of Mark's testimony was addressed. However, the Supreme Court addressed the issue as one of trial court error, and not as an Eighth Amendment or due process claim. As such, Petitioner has never fairly presented Claim VI to the Pennsylvania state courts. Since he cannot seek review of this claim in state court now, the claim is procedurally defaulted and precluded from federal review. Moreover, because Petitioner does not allege in his petition a finding of cause and prejudice and/or miscarriage of justice sufficient to excuse the procedural default, the claim will be dismissed, without consideration on the merits.
We conclude that Mark's outburst did not deny appellant a fair trial. Indeed, Mark's outburst was prejudicial to the Commonwealth, if anyone, because it suggested to the jury that the Commonwealth had elicited false testimony from Mark. In light of counsel's subsequent exploration of whether Mark's testimony prior to his outburst had been truthful, we find no abuse of the trial court's discretion in denying appellant's motion for mistrial.
Claim VII
Petitioner's murder conviction and death sentence should be vacated because the guilt phase murder instructions violated due process.
Petitioner claims that the guilt phase murder instructions violated due process because they presumed Petitioner was the cause of death; relieved the Commonwealth of its burden of proving every element of murder by proof beyond a reasonable doubt; directed a finding for the Commonwealth on a critical matter; and provided no outlet for the jury to give effect to the defense theory of the case. (Doc. 9, Amended Petition at p. 64). In his memorandum of law in support of his petition, Marinelli states that "the guilt phase jury instructions on murder violated Petitioner's due process and Sixth Amendment rights." (Doc. 18-2, Memorandum of Law at p. 78).
This issue was raised on direct appeal as follows:
IV. Did the trial court commit error when it:(Doc. 27-2, App. I, Brief of Appellant at p. 33).
21. Improperly charged the jury on degrees of murder by giving one instruction for first degree murder for defendant and a different instruction for first degree murder for co-defendant?
22. Improperly charged the jury on degrees of murder by giving an instruction for second degree murder for co-defendant to be used if defendant was found guilty of first degree murder?
On direct appeal, the Supreme Court considered Petitioner's argument to be as follows:
Finally, appellant asserts that it was prejudicial error for the trial court to give separate charges for first and second degree murder and to refer to the impact of appellant's guilt in the charges regarding the proof needed to convict co-defendant Kirchoff. Moreover, appellant urges that the trial judge's charging the jury on accomplice liability with regard to codefendant Kirchoff, but not appellant, had the effect of directing the jury to find appellant guilty of first degree murder while considering Kirchoff as an accomplice. Appellant argues that the jury charge as a whole had the general effect of directing the jury that they could find appellant guilty of nothing less than first degree murder.(See Doc. 27-4, App K, Marinellie-1 at p. 33).
In analyzing the above claim, the Supreme Court held that:
"A verdict will not be set aside if the instructions of the trial court, taken as a whole, and in context, accurately set forth the applicable law." Bracev, 541 Pa. at 335-36, 662 A.2d at 1068.Id. at pp. 33-34. As is apparent from the manner in which the issue was framed, and from the Pennsylvania Supreme Court's analysis, Marinelli did not fairly present his due process and Sixth Amendment constitutional challenges to the Pennsylvania Supreme Court. While the Court agrees with Petitioner's argument that a Petitioner may assert a federal claim without explicitly referencing specific portions of the federal constitution, see Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d 1227, 1232 (3d Cir.l992)(holding that a federal claim can be conveyed through (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation), the Court finds that, here, Petitioner did not serve fair notice to the state courts that he was asserting violations of the Sixth Amendment due process rights that jury instructions, among other things, must hold the prosecution to its burden of proving every element of the offense by proof beyond a reasonable doubt, see e.g., In Re. Winship, 397 U.S. 358, 361-64 (1970); Francis v. Franklin, 471 U.S. 307, 313-15 (1985); Carella v. California, 491 U.S. 263, 265 (1989); and United States v. Korey, 472 F.3d 89, 93 (3d Cir. 2007); never direct a finding for the prosecution on any element of the offense, see e.g., Sullivan v. Louisiana, 508 U.S. 275, 277 (1993); United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977); and United States v. Perries, 129 F.3d 1293, 1311-12 (D.C. Cir. 1997); and allow the jury to give full effect to the defense theory of the case, see e.g., Cool v. United States, 409 U.S. 100, 104 (1972); Crane v. Kentucky, 476 U.S. 683, 690 (1986); Strauss v. United States, 376 F.2d 416, 419 (5th Cir. 1967); Zemina v. Solem, 438 F. Supp. 455, 467 (D. S.D. 1977), aff'd, 573 F.2d 1027 (8th Cir. 1978) (per curiam); United States v. Hicks, 748 F.2d 854, 857-58 (4th Cir. 1984): Conde v. Henry, 198 F.3d 734, 739-40 (9th Cir. 2000). Petitioner's claims in state court made no reference to a constitutional or federal right and cited only state cases, without employing any constitutional analysis. Moreover, Petitioner's Supreme Court brief does not assert these claims in "terms so particular as to bring to mind" a constitutional right, nor does he "allege a pattern of facts well within the mainstream of constitutional litigation." McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 275 (1971); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997)). To "fairly present" a claim to a federal habeas court, a petitioner must present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted. McCandless, 172 F.3d at 261 (citing Anderson v. Harless, 459 U.S. 4, 6 (1982) and Picard, 404 U.S. 270). It is not sufficient that a "somewhat similar state-law claim was made." Id. (citing Harless, 459 U.S. at 6). Thus, Petitioner's due process and Sixth Amendment claims are procedurally defaulted because he failed to properly present them to the state courts.
The trial court instructed the jury separately as to each defendant on first degree murder and second degree murder because of the question as to whether appellant used a deadly weapon on a vital part of Dumchock's body. The trial court instructed the jury as to accomplice liability regarding Kirchoff's participation in the killing because only Kirchoff, and not appellant, was charged as an accomplice to the killing.
Our review of the trial court's instructions reveals that the trial court accurately set forth the applicable law as to all degrees of murder as
well as accomplice liability, leaving the degree of murder to the jury to determine for each defendant. See Commonwealth v. Joseph, 451 7Pa. 440, 304 A.2d 163 (1973); Commonwealth v. Gibbs, 366 Pa. 182, 76 A.2d 608 (1950). We find no merit to appellant's arguments.
Claim XVII
Petitioner's convictions and death sentence should be vacated because of ineffective assistance of counsel at trial and on direct appeal.
Petitioner states that "to the extent that counsel failed to reasonably raise and litigate at trial and on direct appeal the errors described throughout this Petition, Petitioner was denied his Sixth and Fourteenth Amendment right to effective assistance of counsel, and his convictions and death sentence should be vacated." (Doc. 9, Amended Petition at p. 75).
Respondent argues that his claim is redundant to the ineffectiveness claims that are raised in connection with the individual claims, (see doc. 27, complete answer at p. 26), and Petitioner agrees. (Doc. 36, Petitioner's reply brief at p. 20). Thus, the Court will not separately consider this claim.
Nevertheless, the Court is not precluded from addressing the merits of the exhausted claims. See Wenger, 266 F.3d at 227-28 ("A petition containing unexhausted but procedurally barred claims in addition to exhausted claims, is not a mixed petition requiring dismissal under Rose pv. Lundy, 455 U.S. 509 (1982)]. Although the unexhausted claims may not have been presented to the highest state court, exhaustion is not possible because the state court would find the claims procedurally defaulted. The district court may not go to the merits of the barred claims, but must decide the merits of the claims that are exhausted and not barred.") (quoting Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993)).
B. Merits' Standard
Section 2254(d) of Title 28 of the United States Code provides, in pertinent part, that an application for a writ of habeas corpus premised on a claim previously adjudicated on the merits in state court shall not be granted unless:
(1) [the decision] was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or28 U.S.C. § 2254(d). To establish that the decision was contrary to federal law, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, 171 F.3d 877, 888 (3d Cir. 1999) (emphasis in original). Similarly, a federal court will only find a state court decision to be an unreasonable application of federal law if the decision, "evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Id. at 890.
(2) [the decision] was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Further, under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a state court's findings of fact are correct. A petitioner may only rebut this presumption with clear and convincing evidence of the state court's error. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions); Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 491, 497-98 (3d Cir. 2005). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 285-86 (3d Cir. 2000). Consequently, a habeas petitioner "must clear a high hurdle before a federal court will set aside any of the state court's factual findings." Mastracchio v. Vose. 274 F.3d 590, 598 (1st Cir. 2000).
Like the "unreasonable application" prong of paragraph (1), a factual determination should be adjudged "unreasonable" under paragraph (2) only if the court finds that a rational jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa. 2003); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 317 (1979). "This provision essentially requires the district court to step into the shoes of an appellate tribunal, examining the record below to ascertain whether sufficient evidence existed to support the findings of fact material to the conviction." Breighner v. Chesney, 301 F. Supp. 2d 354, 364 (M.D. Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and (f)). "Mere disagreement with the state court's determination, or even erroneous factfinding, is insufficient to grant relief if the Court acted reasonably." Porter, 276 F. Supp. 2d at 296; see also Williams v. Taylor, 529 U.S. 362, 410 (2000); Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001). Only when the finding lacks evidentiary support in the state court record or is plainly controverted by evidence therein should the federal habeas court overturn a state court's factual determination. Breighner, 301 F. Supp.2d at 369 (citing Porter, 276 F. Supp. 2d at 296; Williams, 529 U.S. at 408-10).
"If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the state court's determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination." 28 U.S.C. § 2254(f).
Further, the United States Supreme Court has clarified the test a district court must apply before granting relief where the court finds constitutional error:
[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the "substantial and injurious effect" standard set forth in [Brecht, supra, 87 S.Ct. 824, 17 L.Ed.3d 705, 507 U.S. 619 (1993], whether or not the state appellate court recognized the error and reviewed it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in [Chapman v. California,] 386 U.S. 18 (1967).Fry v. Pliler, 551 U.S. 112, 121-22 (2007). Thus, even if the Court concludes that constitutional error occurred in the state court, the Court may not grant relief unless the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 631; see also Bond v. Beard, 539 F.3d 256, 276 (3d Cir. 2008). See also O'Neal v. McAninch, 513 U.S. 432, 436 (1995) ("When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict, that error is not harmless.") (quotations omitted).
Of course, AEDPA scrutiny is applicable only if the state court adjudicated the petitioner's claims "on the merits." 28 U.S.C. § 2254(d); see Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). " An 'adjudication on the merits' has a well settled meaning: a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004), rev'd on other grounds, Rompilla v. Beard, 545 U.S. 374 (2005) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)). Further, an "adjudication on the merits" can occur at any level of state court. Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009). However, "to qualify as an 'adjudication on the merits,' the state court decision must finally resolve the claim. This means that the state court's resolution of the claim must have preclusive effect." Id. (citing Rompilla, 355 F.3d at 247 (quoting Sellan, 261 F.3d at 311)). Where a state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential AEDPA standards do not apply, and the federal court must exercise de novo review over pure legal questions and mixed questions of law and fact. Simmons v. Beard, No. 05-9001, 2009 WL 2902251, at *6 (3d Cir. Sept. 11, 2009) (citing Appel. 250 F.3d at 210) (precedential). However, the state court's factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence. Simmons, 2009 WL 2902251, at *6 (citing Appel, 150 F.3d at 210).
In Thomas, the Third Circuit Court of Appeals was presented with a question of whether a claim has been "adjudicated on the merits" in state court proceedings when a lower state court decided the claim on the merits, but the appellate state court resolved the claim entirely on procedural grounds. Thomas, 570 F.3d at 114. The Commonwealth argued in that case that the PCRA court's decision on the merits with respect to two claims presented in the federal habeas petition was an "adjudication on the merits," rendering § 2254(d) applicable to those two claims. Id. However, the petitioner contended that the Pennsylvania Supreme Court's determination that those claims were waived because they had not been raised in the amended PCRA petition superceded the PCRA court's decision on the substantive grounds. (Id.) The Third Circuit Court rejected the Commonwealth's argument, holding
Applying this rule [that to qualify as an "adjudication of the merits," the state court decision's must have preclusive effect] to the state court decisions here, we see no "adjudication on the merits." Here, the Pennsylvania Supreme Court decided Thomas' claims on purely procedural, not substantive, grounds. This decision stripped the PCRA court's substantive determination of Thomas' claims of preclusive effect. See Restatement (Second) of Judgments § 27 cmt. o (1982) ("If the judgment of the court of first instance was based on a determination of two issues, either of which standing independently would be sufficient to support the result . . . [and] [i]f the appellate court upholds one of these determinations as sufficient and refuses to consider whether or not the other is sufficient and accordingly affirms the judgment, the judgment is conclusive as to the first determination."); 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4432 (2d ed. 2002) ("If the appellate court terminates the case by final rulings as to some matters only, preclusion is limited to the matters actually resolved by the appellate court . . . ."); see also, e.g., Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322, 327-28 (4th Cir. 2005) (holding that, although the trial court reversed an administrative determination on, inter alia, Constitutional grounds, res judicata did not apply to the Constitutional claims because the appellate court affirmed the trial court's decision without reaching the Constitutional issues). The Pennsylvania Supreme Court's procedure-based decision remains as the only resolution of Thomas' claims with preclusive effect. Accordingly, there has been no "adjudication on the merits," and AEDPA deference is not due. See also Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th Cir. 1997) (noting that Section 2254(d) did not apply to claims decided on the merits in state trial court, but disposed of on procedural grounds in the state court of appeals because "the disposition of the last state court to issue an opinion determines whether the state has invoked a ground of forfeiture" (citing Ylst v. Nunnemaker. 501 U.S. 797 (1991))).
Thomas. 570 F.3d at 115-16.
In fact, "the § 2254(e)(1) presumption of correctness applies regardless of whether there has been an 'adjudication on the merits' for purposes of § 2254(d)." Thomas, 570 F.3d at 116 (quoting Nara, 488 F.3d at 200-01).
IV. DISCUSSION
Claim I
Petitioner's convictions and death sentence should be vacated because his due process and confrontation rights were violated under Bruton v. United States, and its progeny.
Petitioner contends that, although neither he, nor his co-defendant, Thomas Kirchoff, testified at trial, the prosecution introduced Kirchoff's statement, which was highly inculpatory of Petitioner, after "redacting" it by replacing Petitioner's name with the phrase "the other guy." (Doc. 18, Memorandum of Law at p. 9-10). He argues that "it was patently obvious to the jury that 'the other guy' was Petitioner; moreover, the 'redaction' repeatedly was broken and Petitioner expressly identified as 'the other guy'." Id. As such, Petitioner contends that he is entitled to habeas relief because his Confrontation Clause and due process rights were violated when he could not confront and cross-examine Kirchoff. Id.
The Confrontation Clause guarantees a defendant's right "to be confronted with the witnesses against him." U.S. Const. Amend. VI. This right includes the ability to cross-examine witnesses. See Pointer v. Texas, 380 U.S. 400, 404, 406-07(1965).
In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that the Confrontation Clause was violated by the admission of a non-testifying co- defendant's statement implicating the petitioner by name in the crime, despite an instruction that the jury not consider the statement against the defendant. In 1987, the Supreme Court decided Richardson v. Marsh, 481 U.S. 200 (1987). Marsh made clear that, in addition to forbidding the introduction of a "facially incriminating confession of a nontestifying co-defendant," id. at 207, the Confrontation Clause also prohibits the government from seeking "to undo the effect of [a] limiting instruction by urging the jury to use [the co-defendant's] confession in evaluating [the defendant's] case." Id. at 211. The Court left open the question whether "a confession in which the defendant's name has been replaced with a symbol or neutral pronoun" violates the Confrontation Clause. Id. at 211 n. 5.
The Supreme Court resolved that question in Gray v. Maryland, 523 U.S. 185 (1998), holding that "[r]edactions that simply replace a name with an obvious blank space or a word such as 'deleted' or a symbol or other similarly obvious indications of alteration" also violate the Confrontation Clause, id. at 192. Because Gray was decided after the Pennsylvania Supreme Court addressed Marinelli's Bruton claim, however, we do not consider it in our analysis of whether the Commonwealth's adjudication of that claim involved an unreasonable application of "clearly established Federal law." See 28 U.S.C. § 2254(d)(1); Greene v. Palakovich, 606 F.3d 85, 94-95 (3d Cir.2010) (holding that the date of the "relevant state-court decision" controls for purposes of determining what constitutes "clearly established Federal law" under § 2254(d)(1)).
In Bruton, the defendant was tried together with codefendant Evans on the charge of armed postal robbery. Evans did not testify, but a postal inspector testified that Evans confessed that he and Bruton committed the robbery, and the judge instructed the jury not to consider Evans' confession as evidence against Bruton. 391 U.S. at 124-25. Overruling its prior holding to the contrary, the Court held that "because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [Bruton]'s guilt, admission of Evans' confession in this joint trial violated [Bruton]'s right of cross-examination secured by the Confrontation Clause." Id. at 126. In identifying the evil sought to be avoided by its holding, the Court focused on the weight likely to be given to the "powerfully incriminating extrajudicial statements of a co-defendant, who stands accused side-by-side with the defendant." Id. at 135-36. "The unreliability of such evidence is intolerably compounded when the alleged accomplice. . .does not testify and cannot be tested by cross-examination." Id. at 136. By its terms, the Court's holding does not rest on the fact that Evans' statement named Bruton, but rather that Evans' statement "inculpat[ed]" and was "powerfully incriminating" as to Bruton. Id. at 126, 137.
Justice Stewart put it this way: "I think it is clear that the underlying rationale of the Sixth Amendment's Confrontation Clause precludes reliance upon cautionary instructions when the highly damaging out-of-court statement of a codefendant, who is not subject to cross-examination, is deliberately placed before the jury at a joint trial." 391 U.S. at 137-38 (Stewart, J., concurring).
In Marsh, a woman named Knighton survived a shooting in which her son and aunt were killed. Defendants Marsh and Williams were tried jointly for the assault and murders. 481 U.S. at 202. Another defendant, Martin, who was Marsh's boyfriend, was a fugitive at the time of trial. Knighton testified that she and her son and aunt, Ollie Scott, were at Scott's home when Marsh, Martin, and later Williams, arrived. Both Martin and Williams were armed. Some time later, Martin and Williams forced the three victims to the basement and shot them. Id. at 202-04.
The state introduced Williams' confession at trial. The confession was redacted before being read to the jury so that it made no reference to any perpetrator other than Williams and Martin. For example, the jury heard Williams say that "[Martin] went up to the house and went inside. A couple minutes later I moved the car and went up to the house. As I entered, [Martin] and this older lady were in the dining room, a little boy and another younger woman were sitting on the couch in the front room. I pulled my pistol and told the younger woman and the little boy to lay on the floor." Id. at 203 n. 1. According to Williams' statement, he and Martin discussed the armed robbery plan as they drove together to Scott's house. Id.
Williams did not testify at trial, but Marsh did. She testified that on Martin's suggestion the three drove together to Scott's house to borrow money. During the drive, Marsh testified that she was unable to hear the conversation Martin and Williams were having in the front seat. She denied knowledge that Martin and Williams were armed or that they intended to rob or kill anyone. Id. at 204. Marsh's testimony was the only evidence offered in the case that she was with Williams and Martin as they drove to Scott's house. Thus, even though Williams' statement did not place Marsh in the car, when considered together with Marsh's testimony, it allowed the inference that Marsh heard them discussing the armed robbery plan.
The Supreme Court began with the holding of Bruton: "[A] defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying co-defendant is introduced at their joint trial." Id. at 207 (emphasis added). In contrast to Bruton, where "at the time that confession was introduced there was not the slightest doubt that it would prove 'powerfully incriminating,' " Williams' confession became incriminating as to Marsh only once Marsh took the stand and testified that she was in the car with Williams and Martin. Id. at 208. The Court found this distinction critical to the Confrontation Clause analysis, because "[s]pecific testimony that 'the defendant helped me commit the crime' is more vivid than inferential incrimination, and hence more difficult to thrust out of mind." Id. at 208. Also, excluding a statement that will only be incriminating by inference when linked with other evidence would be impractical, as it would not be possible to anticipate the impact of the evidence in advance of trial. Id. at 208-09. Therefore, the Court declined to "extend" Bruton to a trial where "the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Id. at 211.
In Marinelli's case, two Defendants, Marinelli and Kirchoff, were jointly tried for the murder of Conrad Dumchock, and neither Defendant testified. The Commonwealth, during its case in chief, introduced Kirchoff and Marinelli's inculpatory statements through the testimony of Trooper Richard Bramhall of the Pennsylvania State Police. When reading each statement, the phrase "the other guy" was substituted for the name of the Defendant. Trooper Bramhall testified that Kirchoff provided the following statement, in relevant part, about the circumstances surrounding the death of Conrad Dumchock:
At the end of Kirchoff's statement, and before Trooper Bramhall read Marinelli's statement, the trial Court instructed the jury as follows:
Members of the jury, as a matter of law, a defendant's statement may only be considered by you as evidence against the defendant who gave the statement. Therefore, you must not consider the statement given to Trooper Bramhall by Thomas Kirchoff as evidence against Kevin Marinelli. In the statement testified to by Trooper Bramhall he used the phrase the other guy. In accordance with the rule of law which I have given you the actual name of the other guy was redacted or removed when the statement was testified to by Trooper Bramhall.(Doc. 26-5, App. D, Trial NT 5/16/95 at 591-592).
Trooper Bramhall will now testify concerning a statement given by Kevin Marinelli. The same rule of law applies. The statement may only be used against Kevin Marinelli and not Thomas Kirchoff. Trooper Bramhall will use the phrase the other guy rather than the actual name given by Kevin Marinelli.
As I said, he [Kirchoff] began by explaining what transpired that evening before he actually went to Kulpmont. And Tom said at that point that at sometime between 10:00 and 11:00 p.m. that night, which we talked about, and was clarified to mean that Tuesday evening, April 26, 1994, sometime between 10:00 and 11:00 p.m. that night he said he arrived at the other guy's apartment in Shamokin. And he met there with the other guy and Mark Marinelli. He said that when he arrived there, he said that Mark Marinelli began talking to him and told him of a plan to go and rob a guy in Kulpmont, who he later identified as Conrad Dumchock.(Doc. 26-5, App. D, Trial NT 5/16/95 at 536-561).
Mark told him that he knew the guy from previously working with him, and he indicated that he believed he had stereo equipment and guns and possibly money that they could steal from the house. So they talked about going there and talked about it for approximately an hour and he thought it was about 11:00 p.m. when they left that apartment in Shamokin.
* * *
He said at - - at that point he described that they - - that all three of them got into a car. He said that he didn't know whose car it was, but described that they all took things with them. He said that he took a flashlight and a baseball bat. He said that Mark Marinelli took a flashlight and - - he took a flashlight and screwdriver. And he said that the other guy took a flashlight and a baseball bat.
We also had some discussion about what the three of them were wearing at that point and throughout that evening. He said that they were wearing - - he couldn't remember the exact clothing that Mark Marinelli and the other guy had on, but he knew they were all wearing black leather, combat style boots; that they all had camouflage military type pants and so forth.
He described, at that point, them getting into this car, he said Mark Marinelli had. And he described Mark Marinelli as being the driver of the car, since he knew where the house was in Kulpmont. And he described the other guy as seated in the right, front seat, and he was in the back seat.
* * *
He said that - - when he talked about after they left the apartment in Shamokin, he said that prior to them leaving, when they were in the apartment talking about going to Dumchock's house, he said that Mark Marinelli knew that Dumchock wasn't going to be there at a particular time that evening. Now, Tom told me he didn't know what time that was, and Mark Marinelli never told him. But he just
explained that for some reason he knew he wouldn't be there at a particular time.
So, as I said, he left - - he said they left at around 11:00 p.m. And as Mark Marinelli was driving the car, he said he was driving slow, like he was intentionally stalling, because he knew of a specific time when they should arrive. And he said that they drove around Shamokin for a little while. They drove around Kulpmont. . .
* * *
Eventually after this driving around, he said that Mark Marinelli decided it was time to do it. And he turned from the Main Street in Kulpmont and drove up the hill, as Tom described it. And he said he drove to a house and pointed it out as Conrad Dumchock's house. And then he parked the car there along the side of the house near the gate that went into the yard into the back porch of the house.
* * *
He said that, at that point, they all three got out of the car, and they all three went up on the porch. He said that Mark tried to open the back door but it was locked.
* * *
He said that once they - - once they found out that none of the doors were open and the windows were all secured, that eventually he said the other guy broke a small window which was on the back door of the house with the baseball bat, broke some of the glass out. And that the other guy reached in and unlocked the door through that broken window.
He said that once the door was open that they all three went into the house. And he said that they all went in in succession, one after the other, through the door ... And he said that then they all went into a living room on the first floor of the house. And at that time, they saw
the stereo equipment that was in an entertainment system, a rack system.
* * *
He said that as he and Mark Marinelli were looking at - - as they all were looking at the entertainment system, he said that the other guy went up those stairs towards the second floor.
* * *
As I said, he said that the other guy left that area and went up the stairway. Soon afterwards Tom described - - he said he heard what he described as a scuffle up the stairs, at the top of the stairs. He said at that point when he heard the scuffle, he said that he began going up the stairs himself.
* * *
He said that when he got near the top of the stairs, to the point that he could see at the top of the stairs, he said that he saw the other guy. And he described it as pounding on a guy with the baseball bat. And he said that that guy, who was being pounded on, was Conrad Dumchock.
* * *
He said that the other guy - - that Dumchock was knocked down. And he could not remember specifically if he was lying on his side or not. But a little bit later on he described how Dumchock's body was lying there. To the point that he said his head was near the opposite side of the door frame that was to the left of the top of the stairs, and that his feet were down towards the top of the stairway. And that is the way he was lying.
* * *
At the point when he described getting near the top of the stairs, and he described the other guy pounding on Conrad Dumchock with the baseball bat, he paused in his account of what had happened. I asked him to go and describe what happened next. And I asked him what did he do. He eventually said he got to the top of the stairs. And he said, 'I went into a frenzy.'
* * *
... he said again, 'You know, I lost It, I just lost it.' And then he became more agitated. And he said, I had the baseball bat, and I started hitting him and hitting him. And he was coming off his chair. And he said, I was hitting him and hitting him and I kicked him a few times. And then I settled down and I stopped hitting him, and I realized that I did something very wrong. And the whole time he was moving with his arms as if he was actually hitting someone.
* * *
I asked him if there was any resistance or if Conrad Dumchock fought back at all. And he said, 'No.' I asked him if he remembered anything being said, if Conrad Dumchock was saying anything, or if he was saying anything to Conrad, or to the other guy, or if the other guy was saying anything. He said he couldn't remember any of them saying anything throughout that.
* * *
When the beating was over, he said that the other guy told him to just stay there and watch Conrad Dumchock. And then he went on to explain that that is basically what he did for the remainder of the time that he was in the house ... He went on to say that the other guy then began going around in some of the other rooms upstairs. And the other guy was carrying things out of the rooms and down the stairs a few times. He really didn't know what those things were ...
* * *
And eventually when it came time that they all left, the other guy, again, gave him direction.
* * *
He said that - - when they were in the house, he said that he and Mark Marinelli had on bandanas. And he described the other guy as wearing a hockey mask and a baseball hat on backwards.
* * *
I asked him how long all three of them were in the house. And he said that he thought it was about two hours. And I also asked him how long it was from the time they first went in the house until the beating took place. And he said that that was five minutes or less.
* * *
He said that eventually at the end of what he believed was about two hours, he said that the other guy, again, was upstairs, told him to go downstairs, get Mark Marinelli and go out to the car. He said that when he got downstairs, Mark Marinelli was not downstairs. And he said that all the items - - he didn't see any of the items around that he believed that were going to be taken, so he assumed that they were all removed to the car already. So he left the house and went out to the car.
He said that Mark Marinelli was at the car. And just as he got to the car, and he and Mark were standing outside, he said he heard two gunshots. He said he and Mark were scared. They jumped into the car. He said about a minute later the other guy came running out of the house, jumped in the car and said, 'Let's get the hell out of here.' He said that Mark asked the other guy what happened. And the other guy said, 'Don't worry about it, just get out of here.' And they all left. He said at that time, they were in the same places in the vehicle as they were in when they came; Mark Marinelli was driving that he
was in the back seat and the other guy was in the right front. He said, at that time, a lot of the items that were taken were in the back seat with him.
* * *
He said that he specifically remembered that it was 3:30 in the morning when they got back to his house. And he said that once they got back to his house they all went into his basement where he has a little area .. .And when they went inside they took some of the items with them that they took out of Conrad Dumchock's house. He said at that point that they took some guns. They took jugs of whiskey ... And he said Mark Marinelli had some money.
* * *
He said that a few days later, after that night or that early morning, the other guy came back to his house, his meaning Tom's. And, again, they went in that basement area that he described ... He said that on that particular date the other guy brought with him a pistol and showed it to Tom. Tom described the pistol. He said he wasn't very familiar with guns, but he described it as a silver colored pistol with wooden grips. He said that it was the same pistol that he had seen the other guy with previously; that the other guy used to carry it around with him most of the time. At that point, the other guy was showing him this pistol. And at that point, the other guy told him that this is the pistol and I shot Conrad Dumchock with it.
* * *
And he said that on the day when the other guy came and showed him the gun, and told him that he shot Conrad Dumchock with that gun, he said that the other guy explained to him that he took a pillow and put it over Conrad Dumchock's head to try to muffle the sound of the shot. But he said that Dumchock was scuffling too much, so he just shot him.
Marinelli points to times in the trial when the "redaction" was broken and Petitioner was expressly identified as "the other guy." In his opening statement, Kirchoff's attorney identified Petitioner as "the other guy." The transcript reads, "Kirchoff stated that he was on his way back into the house and trying to talk Kevin out of it, referring to something bad, when he heard the shots." (Doc. 26-2, App. A, Trial NT 5/12/95 at 90). After a sidebar conference, at which Kirchoff's attorney admitted his mistake in which he "said Kevin once", id. at 95, Marinelli's attorney "request[ed] a mistrial and again ask[ed] the Court for severance." Id. The trial court denied the motion for mistrial. Id. at 98.
Additionally, Marinelli argues that, throughout his argument, the prosecutor relied on the statements of Petitioner and Kirchoff without distinguishing which statement could be used against which defendant, see e.g.,(doc. 26-7, App. F, Trial NT 5/18/95 at 774, 808-10, 814-16), and then the prosecutor eventually dropped any pretense of "redaction" and expressly identified Petitioner as "the other guy" in Kirchoff's statement. Id. at 815 ("Then the next thing out of Kirchoff's mouth, the statement to McElheny was, he turned and he was going in to try to stop Kevin from doing it."); 815-816 ("So he said he turned to go in and to stop Kevin from doing this bad thing and the next moment two shots rang out ... [and] Kevin comes running out.").
When the prosecutor also expressly identified Kirchoff as "the other guy" in Petitioner's statement, Kirchoff's counsel objected, (doc. 26-7, App. F, Trial NT 5/18/95 at 817), and the trial court, once again, instructed the jury that:
As a matter of law, a defendant's statement can only be considered by you as evidence against the defendant who gave that statement.Id. at 820.
Therefore, you should not consider the statement given by Kevin Marinelli to Trooper Bramhall as evidence against Tom Kirchoff. And, likewise, you should not consider the statement given by Thomas Kirchoff to Trooper Bramhall as evidence against Kevin Marinelli.
At the end of the trial, the judge instructed the jury that it was not to consider the co-defendants' statements against one another. (Doc. 26-7, App. F, Trial NT 5/18/95 at 851.
The Pennsylvania Supreme Court rejected Petitioner's Bruton claim (presented both as a Confrontation Clause violation and court error for failing to sever the trials), finding that Kirchoff's statements were properly redacted and the evidence against Marinelli was overwhelming, such that any error was harmless.
In addressing appellant's allegation of error, the appropriate standard is the harmless error test set forth in Commonwealth v. Story, 476 Pa. 39, 383 A.2d 155 (1978). See Bond, supra. An error is harmless "only when in light of the overwhelming evidence of guilt it was so(Doc. 27-4, App. K, Marinelli-1. at 24).
insignificant that it could not have contributed to the verdict." Bond 539 Pa. at 313, 654 A.2d at 314.
Co-defendant's counsel stated in his opening statement:(N.T. Vol. 1, at 90). There was no prejudice from this reference to appellant by name. All three co-conspirators admitted their involvement in the conspiracy which resulted in the killing. Appellant admitted he pulled the trigger. Moreover, the trial court cautioned the jury that arguments of counsel were not evidence. In light of the overwhelming evidence of appellant's guilt, this reference to his name in co-defendant's opening statement was so insignificant that it could not have contributed to the verdict.
Kirchoff stated that he was on his way back into the house and trying to talk Kevin out of it, referring to something bad, when he heard the shots.
Appellant next asserts that co-defendant Kirchoff's redacted statement implicating appellant remained powerfully incriminating against appellant, thus violating his right to confrontation set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Neither appellant nor his co-defendant testified at their joint trial, but Trooper Bramhall testified as to each of their statements, redacting these statements to refer to the respective co-defendant as the "other guy".(Doc. 27-4, App. K, Marinelli-1, at 30-31).
In Bruton, the United States Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution when his non-testifying co-defendant's confession naming him as a participant in the crime is introduced at their joint trial. Subsequent to Bruton, however, we have approved the process of redaction whereby the names of co-defendants are deleted from each of the others' confessions in joint trial situations. Bond, supra; Commonwealth v. Wharton, 530 Pa.
127, 607 A.2d 710 (1992); Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859(1977).
We stated in Bond,
Admittedly, the redacted confessions along with the other evidence presented may reasonably lead the jury to infer that the "other guy" referred to within the confession of one defendant is obviously the co-defendant. This Court recognizes that where the jury can infer that the redacted confession implicates the defendant, the defendant's rights under the confrontation clause are implicated. However, not all violations of the accused's right to confront his witnesses results in reversible error. The appropriate standard for review under these circumstances is the harmless error test as set forth in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). Commonwealth v. Chestnut, 511 Pa. 169,512 A.2d 603 (1986) (violation of a defendant's right to confrontation occurring through the admission of a co-defendant's redacted confession is subjected to harmless error analysis.Id. at 312, 652 A.2d at 314.
The error alleged by appellant here is that redaction had the effect of emphasizing the incriminating statements. We find that in view of the overwhelming evidence against appellant in this matter and the trial court's repeated instructions to the jury that the statements were to be used only against the person who made them, the trial court's admission of these redacted statements, if error at all, was harmless error at best.
The Pennsylvania Supreme Court relied on its own prior cases applying Bruton, which permitted use of a confession that redacted reference to the existence of the defendant. Id. (citing Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859, 860-61 (Pa. 1977) (reference to defendant was deleted including any reference to "we"); Commonwealth v. Chestnut, 512 A.2d 605, 605 (Pa. 1986) (rejecting blanket rule prohibiting all "contextual" implication redactions but finding Bruton violation where "jury could not have failed to understand that appellant was "the other person" referred to in the testimony implicating [codefendant]")).
In determining whether the Pennsylvania Supreme Court's decision was contrary to or involved an unreasonable application of Bruton and Marsh to the facts of Marinelli's case, it appears that Kirchoff's statements in Marinelli's case fall somewhere between that deemed constitutionally infirm in Bruton and that deemed acceptable in Marsh. Unlike Bruton, where the co-defendant's statement identified the defendant by name, Marinelli was never identified by name in the statements admitted at trial (although Marinelli was mentioned by name by both Kirchoff's attorney and the prosecutor). However, unlike Marsh, where the co-defendant's statement contained no reference to the existence of a co-conspirator, Kirchoff's statements not only referred to one unnamed, co-conspirator, but laid the blame for the murders directly at the co-conspirator's feet. The essential question in reviewing Marinelli's trial under Bruton and Marsh is whether the statements incriminated Kevin Marinelli powerfully, directly, and on their face, or only inferentially in light of other evidence.
The Commonwealth's consistent theory of the case was that three, individuals, Thomas Kirchoff, Mark Marinelli, and Kevin Marinelli, entered the home of Conrad Dumchock, with the intention of committing a robbery, and exited with the resulting beating, shooting and brutal death of Conrad Dumchock. In his statements, Kirchoff denied committing the murder and accused his co-defendant of committing it on his own. The introduction of Kirchoff's statements, without eliminating reference to the other two co-conspirators, directly implicated Kevin Marinelli. The statements on their face pointed to the only other, unnamed coconspirator, namely Kevin Marinelli. Without doubt, the statements were powerfully incriminating as to Kevin Marinelli.
The Pennsylvania Supreme Court's analysis of the Bruton issue is limited to noting that "We find that in view of the overwhelming evidence against appellant in this matter and the trial court's repeated instructions to the jury that the statements were to be used only against the person who made them, the trial admission of these redacted statements, if error at all, was harmless error at best." The Pennsylvania Supreme Court unreasonably applied Bruton by not examining whether the statements directly implicated Marinelli, which they did, despite the substitution of "the other guy" for his name. Thus, the Court concludes that the admission of Kirchoff's statements when he was unavailable for cross-examination violated the Confrontation Clause and the Pennsylvania Supreme Court's determination to the contrary was an unreasonable application of Bruton.
While not directly relevant to determining the state of firmly established Supreme Court law, appellate decisions can nonetheless be helpful and support the conclusion that the Pennsylvania Supreme Court's application of Bruton was unreasonable. Two cases decided by the Third Circuit are particularly instructive. In the most recent, Greene v. Palakovich, 606 F.3d 85 (3d Cir.2010), three or four men robbed a small grocery store and the owner died after being shot. The robbers carried away the cash register and escaped in a vehicle parked nearby. In the investigation, Jackson, a prosecution witness, gave a statement identifying six individuals involved and stating that he and Greene and another individual stayed in the car while the other three committed the robbery. Two co-defendants who did not testify, Finney and Womack, also gave statements. Both implicated Greene in the robbery, and one of them stated that Greene carried out the cash register. Greene did not give any statement. Id. at 88.
At trial, Jackson was a witness for the Commonwealth and testified that Greene entered the store and carried out the cash register, and Greene's counsel cross-examined him based on inconsistencies between his testimony and his statement. The Commonwealth introduced Finney's and Womack's statements, redacted to substitute reference to any of the co-defendants by name with phrases such as "this guy," "other guys," and "two guys," and with neutral pronouns such as "we" or "someone," and in a few instances with simply the word "blank." Id. at 89-90. The Pennsylvania Superior Court upheld Greene's conviction because "all references to the other defendants by proper name or nickname had been removed." Id. at 106.
On habeas review, the Third Circuit concluded that the Superior Court reasonably applied Bruton and Marsh. Id. at 104. The court focused on the fact that there were five or six co-conspirators, in contrast to the two and three defendants involved in Bruton and Marsh. "As a result, Finney's and Womack's redacted statements did not directly implicate Greene." Id. at 106. Additionally, the substitutions used in the redactions-e.g., "other guys"-"yielded confusing statements that failed to establish either the number of persons involved or ... the role that each person played in committing the offense." Id. For these reasons, the statements did not "expressly implicate [ ] Greene," and the Superior Court reasonably concluded that the jury followed the limiting instruction. Id.
As discussed supra at n. 9, Gray was not relevant to the Third Circuit's analysis because it was decided after the Superior Court reviewed Greene's conviction. 606 F.3d at 93-99.
Greene can be contrasted with another recent Third Circuit case, Vazquez v. Wilson, 550 F.3d 270 (3d Cir.2008). There, Vazquez and Santiago were on trial for murder and other offenses. The evidence showed that three men were driving in a car when one of them fired a weapon at another vehicle, killing the victim. A weapon was recovered which contained one fingerprint that was matched to Vazquez and other prints that were too smudged for comparison. Santiago gave a statement in which he reported that he was the driver and that Vazquez and another individual, George Rivera, were the passengers, and that Vazquez was the shooter. Id. at 272-73.
Santiago did not testify at trial, and the prosecution introduced his statement, substituting "my boy" or "the other guy" for the names of Vazquez and Rivera. Santiago's attorney was permitted to tell the jury that Santiago had identified the other individuals by name and had offered to show the police their homes. Vazquez took the stand and testified that Rivera (who was not on trial) was the shooter, and that Rivera passed him the weapon telling him to get rid of it. In closing argument the prosecutor " 'referred to 'Mr. Santiago's statement that he and the other man George, excuse me, the man who's not the shooter, he said, [had] jumped out of the car.' " The jury acquitted Santiago and convicted Vazquez. Id. at 273-75.
On federal habeas review, the Third Circuit concluded that the state courts had unreasonably applied Bruton when they concluded that Vazquez's confrontation rights were not violated. Id. at 280-81. The court applied Bruton, Marsh, and Gray to reach this conclusion, although its analysis rests less on Gray than on Bruton itself. Its reasoning turns on the role Santiago's statement played in the context of the evidence, and in particular on the fact that Santiago's statement could refer to only two co-conspirators-Vazquez and Rivera-and that therefore the references to "other guy" were not effective in concealing Vazquez's identity.
[A]s far as admission or use of [Santiago's] statement is concerned, this is and always had been a two-person case involving Vazquez and Rivera.... The fact that there were only two possible shooters under Santiago's statement should have made clear to the trial court that, whether or not the jury credited the statement in its entirety, it was almost certain to conclude that the individual Santiago described in his redacted statement as 'my boy' or 'the other guy' as the shooter was Vazquez because Rivera was not on trial and the Commonwealth argued that Vazquez fired the fatal shot.Id. Indeed, the court found the implication of Vazquez so apparent as to describe it this way: "[I]f this case does not involve 'an unreasonable application ... of clearly established Federal law, as determined by the Supreme Court of the United States,' it is difficult to conceive of any case that could meet that admittedly exacting standard." Id. at 281.
These cases teach that whereas a statement that refers to multiple conspirators will not necessarily implicate a particular unnamed actor, a statement that refers to the co-defendant himself and one other individual will directly implicate that other individual regardless of the name or label used, particularly when there are only two defendants on trial. Marinelli's case is distinct from Greene. However, it is right on par with Vazquez. While there were three co-conspirators, Thomas Kirchoff, Mark Marinelli and Kevin Marinelli, there were only two defendants on trial for Dumchock's murder. Kirchoff referenced himself, the other co-conspirator, Mark Marinelli, and "the other guy" in his statements. As the case was presented, there was no possibility that "the other guy" in those statements referred to anyone other than Kevin Marinelli. It was an inescapable conclusion easily drawn by anyone listening to the evidence. Thus, despite the redactions, Kirchoff's statements directly implicated Kevin Marinelli.
The Third Circuit queried in Vazquez "if this case does not involve 'an unreasonable application ... of clearly established Federal law ...' it is difficult to conceive of any case that could meet that admittedly exacting standard." 550 F.3d at 281. So, too, with the present case. Kirchoff's statements, laying blame for the murder at the hands of "the other guy," when three people were involved in the crimes, only two of whom were on trial, and only one person's name was redacted from the statements, and that person happens to be sitting beside him at the defense table, "posed a substantial threat to petitioner's right to confront the witnesses against him." Bruton, 391 U.S. at 137.
It also bears mentioning that Kirchoff's attorney's use of Kevin Marinelli in his opening statements, as well as, the prosecutor's use of Kevin Marinelli's name during closing argument compounded the Bruton violation. Specifically damaging was the prosecutor's reference to Kirchoff's statement that "he turned to go in and to stop Kevin from doing this bad thing and the next moment two shots rang out... [and] Kevin comes running out.").
When viewed in the context of the testimony presented at trial, these reliances on Kirchoff's statements to prove Marinelli's guilt amount to a direct attack on the Bruton rule. In Vazquez, the Third Circuit concluded that the prosecutor's misstatement, inserting the name of Vazquez's codefendant as the non-shooter, "effectively eliminated the redaction of Vazquez's name." Vazquez, 550 F.3d at 275. Here, the statements in the prosecutor's closing had the same effect of eliminating the redaction and inserting Kevin Marinelli's name back into Kirchoff's statements.
Finding a Bruton violation, however, does not end the inquiry. Before granting habeas relief, the court must determine if the constitutional violation had a "substantial and injurious effect" on the fairness of the trial. Fry v. Pliler, 551 U.S. 112, 121, 127 (2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). This requires the petitioner to establish that the constitutional error resulted in actual prejudice. Brecht, 507 U.S. at 637 (citing United States v. Lane, 474 U.S. 438, 449 (1986)). "When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict, that error is not harmless." See Bond v. Beard, 539 F.3d 256, 276 (3d Cir.2008) (quoting O'Neal v. McAninch, 513 U.S. 432, 436 (1995)). The harmless error analysis is performed de novo by the federal courts. Id. at 275-76 ("Fry instructs us to perform our own harmless error analysis under Brechtrather than review the state court's harmless error analysis under the AEDPA standard.").
The Pennsylvania Supreme Court determined that the Commonwealth presented "overwhelming evidence" of Marinelli's guilt, such that even if Marinelli was implicated by context, the result was harmless error. Although the federal courts do not owe deference to the Court's harmless error conclusion, this Court agrees that the evidence against Marinelli was strong enough, even apart from the evidence admitted in violation of Bruton, that the error did not cause actual prejudice.
In addition to the testimony of Marinelli's brother, Mark, who implicated Marinelli in the murder, witness Nathan Reigle, who testified that Kevin Marinelli had bragged about how he had killed Dumchock, and the physical evidence recovered after a search of Marinelli's residence, Kevin Marinelli's statement, in which he admits that he intentionally shot Conrad Dumchock, was presented by the Commonwealth at trial. At trial, Trooper Bramhall recounted Marinelli's statement to police:
He [Marinelli] said that that night... his brother, Mark, came up with an idea of going to a house in Kulpmont and stealing some things ... this was a house that belonged to Conrad Dumchock... And he also said that Mark told him that he believed - - he knew that Conrad used to be in a band and that he had a lot of stereo equipment, expensive stereo equipment and that he believed that they could go there and steal that, and he also thought that he had guns.(Doc. 26-6, App. E, Trial NT 5/17/95 at 593-651).
* * *
He said that after Mark described all this to him, and the two of them talking about this, he decided that he would like to go and steal these items with his brother, Mark. At some point then, his brother, Mark said that probably they need somebody to go with them to help them
get some of the items out of the house. And Kevin said that he told Mark he knew of another guy who would probably help.
* * *
He said that once the other guy arrived, which was around 10:00 p.m., he said that then he and his brother, Mark, sat around with this other guy and explained the plan to him about going to Conrad Dumchock's and stealing these things. And that after they explained it to him, the other guy eventually decided that he would go and help them.
* * *
. . . And when he talked about what they all took with them, he said that they all took flashlights, each of them had a flashlight that they took with them. He said that he had a .25 caliber pistol which he later said was a Raven brand. It was a pistol he said that he carried around with him for protection. . .
* * *
. . . He said that his brother, Mark, took a baseball bat. And he explained that that baseball bat was already in the car when they got in the car, that Mark usually kept it in the car, and it was already there. And he described that all three of them got in the car.
He said that Mark drove; his brother, Mark, drove. He was in the front of the car and the other guy was in the back seat. . .
* * *
. . . He said, again, they all three went upon the porch. And at that point he said they talked about breaking out the little window in the back door. And he mentioned that he was concerned that it might make too much noise. And his brother, Mark, told him to put his jacket, that he had on, up against the window and use his elbow to break it out, which he said he did. He said just a little piece of glass
broke out and he picked sought [sic] some other pieces from the window which he laid down carefully so not to make too much noise. And then he reached inside and unlocked the door and opened it up.
* * *
He said that when they entered the house through that back door, he said the first room that they were in was the kitchen .. .
* * *
He said that once they passed through the kitchen and the next room they entered the living room in the first floor there of the house. He said once they got in the living room they saw the - - all the stereo equipment in an entertainment system, in a rack system. He said that they all went over to where that was located and they started checking it out. He said they started looking it over.
* * *
. . . He said as they were standing there looking at the stereo equipment, his brother, Mark, told him no, and said he motioned with his hand or his finger, pointed to the stairs and up the stairs. He said no, go upstairs, that his brother, Mark, told him that. He said at that point he assumed that Mark meant to go upstairs because there was good stuff up there to steal.
* * *
. . . he said when he got to the top of the stairs, off to his right, he said that he heard a dog growling ...
* * *
At any rate, he walked across the hall into the bathroom. He said when he got inside the bathroom, the door which he described as opening into the bathroom, he said he got behind the door and he held
onto the door knob and pulled the door closed against him, so that he was between the door and the wall . . .
He said that right after he felt that tug against the door he said that a person looked around the end of the door and looked at him. And he said that person was Conrad Dumchock.
* * *
. . . He said at that point Conrad said to him, What the hell are you doing here. And Kevin described that he didn't really say anything. And Conrad said, Well, I guess you better leave. And Kevin said, he said in response, Yeah, I guess I better. So at that point, he said the door was open. He stepped out from behind it. He said that Conrad then stepped out of the way slightly so that Kevin could pass him. And Kevin said he walked out of the bathroom past Conrad and walked towards the top of the stairs.
* * *
He said that just as he got to the top of the stairs, he looked down towards the bottom of the stairway. And he said right at the bottom of the stairway with - - and he specifically said, again, about his brother, Mark, with the Do Rag over his face, he said his brother, Mark, was standing at the bottom of the stairway looking up at him and shaking his head no.
* * *
Kevin, again, said that when he saw Mark do that he said he knew what Mark meant. And he explained that he knew Mark meant that they weren't going to leave without taking some stuff. So, he said at that point he said he reached into his pocket, the pocket of his jacked that he had on, and he took the .256 caliber pistol that he had - - he said he got that out of his pocket and turned and held the gun up between himself and Conrad. And I asked him if he pointed it at Conrad at that point. And he said, no, he held it up between the two of them so that Conrad could see it . . .
* * *
He said that he held the gun up, and he believed Conrad recognized it as a gun. He said that Conrad - - again, he described that he looked scared. And he said that Conrad made a comment to the effect of, you can have whatever you want, or take whatever you want.
* * *
... And he said that after he got the gun out and held it up between himself and Conrad, he said that his brother, Mark, then came from the bottom of the stairs, came up the stairs and go to the top and stood - -what he described as slightly behind him and off to his left. He said, against, that his brother still had the baseball bat.
* * *
... At any rate, while his brother, Mark had gotten up to the top of the stairs, and was standing somewhat behind him, he said then he saw the other guy start to come up the stairs quickly. He said the other guy had the ax handle in his hand, and he was quickly coming up the stairs. At that point, Kevin said he believed, because of the way the other guy was coming up the stairs and how that was happening, he believed that the other guy was going to hit Conrad with the ax handle.
* * *
He said that since he thought that the other guy was going to hit Conrad with the ax handle, that if he hit him first, that the other guy wouldn't hit him. So he said that he took the gun and hit Conrad in the face with it.
* * *
He said that just after he hit Conrad in the face with the gun, he said the other guy now had gotten to the top of the stairs. And he said the
other guy hit Conrad in the legs, he said around the area of the knees with the ax handle that he had. He said once the other guy hit Conrad in the legs with the ax handle, he said then Conrad fell down. And he described him falling on to his right side. He said at that point - -Kevin said at that point Conrad made a comment about, 'Please don't hurt me,' after he got hit and fell down. And Kevin said that he told the other guy something along the lines of, you know, 'don't hit him anymore, don't hit him again.'
* * *
. . . But anyway, the other guy, he said, just started hitting him with the ax handle. He said he hit him a lot of time and he hit him all over.
* * *
. . . he said that Conrad wasn't fighting back. He said he didn't even try to get up. He said he thinks he was trying to cover up with his hands, maybe to protect himself, but he wasn't fighting back or trying to get up at all. And he said that the other guy was hitting him with the ax handle, kept hitting him and hitting him. And Kevin said he told the other guy to stop, to stop hitting him. And he said at first it seemed like the other guy didn't hear him, because the other guy didn't stop.
* * *
. . . And then he said he reached out and grabbed him [the other guy] either his shoulder or somewhere in that area, he grabbed him and kind of yanked him. And he said then the guy finally stopped hitting him. And he said, at that point, he told the other guy, you know, again, he said, he told him, 'Don't hit him anymore.' And he told the other guy, 'Just stay here and watch him.'
* * *
. . . we talked about how Conrad was lying at that point and what was happening and so on. He said, again, that Conrad was lying on his
right side. And he described his head as being up near the opposite side of a door frame, so that he looking into another bedroom, so that Conrad was facing another bedroom. And he described his body as being somewhat curved, and that his feet were down by the top of the stairs . . .
* * *
... once the beating had stopped, then he said Mark was still at the top of the stairs, and Mark told him that he was going to go downstairs and get the stereo equipment and start loading it onto the kitchen table, or taking it into the car, loading it into the car. And he said Mark did go downstairs.
* * *
He said that at that point after Mark went downstairs, saying he was going to get the stereo equipment, Kevin said that he then went from the area on the hallway there into the bedroom at the right - - to the right of the top of the stairs ...
* * *
He said that once he turned the closet light on, he looked around in the closet. In the corner of the closet he founds some guns ... He took them out of the closet and he laid them on the bed, he said.
Then he said he went to a filing cabinet that was long the wall next to the bed somewhere. And he opened up the drawers of the filing cabinets, and inside there he found - - he said he found about eight boxes of .22 shells or ammunition, and he found some 12 gauge shotgun shells. I think he said about three or four, just a few. And he also found - - he said he found a revolver. At that point he said he didn't know exactly what kind it was, but he found a revolver, a handgun. And he laid all of that on the bed also.
Later on, as we were talking about that, this whole scenario against, he described that he also, in that drawer, found a stack of Two Dollars bills, and he laid them on the bed also.
* * *
He said that after he laid the guns and the ammunition on the bed, he said he wanted his brother, Mark, to look at them. So he said that he yelled for his brother Mark, to come up the stairs to look at that stuff. And he talked about that. And he said the first time he wasn't sure if Mark heard him. So he went outside the bedroom, and he was going to yell for Mark again to come up the stairs. And he described now that when he comes out of the bedroom - -
* * *
He said that when he came out of the bedroom into the hallway, now he sees the other guy - - he sees Conrad laying in the same place, but now he says he sees the other guy with the ax handle. He says that the other guy has the ax handle around the neck of Conrad Dumchock, underneath his neck, and that he has got both of his hands on the ax handle. And he describes him as having his knee on his back and him pulling up on the ax handle, like he believed he was trying to choke him. He believed that he was trying to choke him.
* * *
He claimed, again, that he went up to the guy and yelled at him and told him, 'Get off of him, you're going to kill him,' something to that effect. He said, again, he reached out and he had to grab the guy's shoulder, or something to that effect, and pull the guy ...
* * *
... And he described at that point that he described Conrad as being - - he said there was a lot more blood. He said he thought that Conrad must have been hit more times while he was in the bedroom because
he said that compared to the first time he saw him, now there was more blood on the — he described it on the door frame and around Conrad's head, and on his head, and so on and on, the floor. And he figured that he must have been beaten more.
* * *
... he [Marinelli] talks about going back into the bedroom from which he had come, from where he found the guns. And he talked about grabbing pillows. And we talked about that. He said that he grabbed two pillows out of that bedroom. He brought them back out into the hallway.
* * *
Well, Kevin claims that he put one pillow behind Conrad's head, between his head and the door frame. And he claims that he put the other pillow underneath Conrad's head ... And he said then he remembered his [Conrad's] hands falling away from his face, just limp. He said Conrad's eyes were closed. He saw that at that point. And he said he assumed or he figured that Conrad was knocked out, is what he said.
* * *
. . . he said he was concerned for Conrad that - - he said he was concerned about his welfare; basically that, you know, he was bleeding so much and he was concerned about that bleeding . . . he talks about having medic training or whatever. And he talks about maybe that kicked in, and he had some kind of concern for the injuries that Conrad had. And that was the explanation he gave for the pillows.
* * *
He said when Mark got to the top of the stairs, he motioned him to the bedroom . . . And he said Mark began looking at the guns then. And he said at that point Mark looked at the revolver, the handgun he had
found .. . And he said Mark told him it was a .22 revolver . . . Mark told Kevin to take the rifles and the shotgun and take them downstairs.
* * *
He said he took the guns downstairs ... He talks about going through that room into a bathroom at the back of the house. And he talks about ripping a phone cord from a phone that was in that bathroom.
* * *
Kevin said, at that point, again, he went back up the stairs ... He said at that point, his brother, Mark, took some of the ammunition that he had found, that Kevin had found, the .22 ammunition, he said he took that, and he saw his brother, Mark load that into the .22 revolver. And he mentioned about having - - he thought it was seven shots. But anyway, his brother, Mark, loaded, he thought seven shots into that gun.
* * *
... And then he said eventually his brother, Mark, made a comment to him, said to him, 'You know what you're going to have to do now, you're going to have to kill him,' meaning - - referring to Conrad.
* * *
Kevin said that he made a comment in return to his brother, Mark, that 'I don't want to shoot nobody or I don't want to kill nobody.' And his brother, Mark, again, said that, you know, 'You're going to have to shoot him - - you're going to have to kill him, because he saw your face'. . .
* * *
... he said his brother, Mark, reached into the side pocket and pulled out the .22 revolver that he had had in there from the other bedroom.
He said that his brother, Mark, took that revolver and pointed it at him. He said different things at this point. He said that at one point he stuck it in his stomach. He said he pointed it at him. At any rate, the bottom line is that he claimed from a very short distance away his brother Mark had the gun and pointed it at him
* * *
He said that his brother, Mark, made a comment to him about, 'Well, if you don't shoot him, I'm going to shoot you'. And he claimed that - - first, he said by the look on Mark's face ... he talks about the look in Mark's eyes.
* * *
... And he talked about, you know, he took out the gun that he had, the .25 caliber pistol, when he turned and walked up to Conrad. And he said that Mark, his brother, still had the gun out pointed at him while he turned around and walked closer to Conrad. And as he showed us how things were situated and where he was standing and so forth, the distance that he described was approximately five feet, is where he claimed that he actually shot Conrad Dumchock from . ..
He said he pointed it right at Conrad's head. And he said he pulled the trigger twice. He basically described it as being twice, one right after the other, right in a row, and in rapid succession.
* * *
... He said they went downstairs, went through the living room back into the kitchen. He said that when they go to the kitchen they noticed all the stuff, stereo equipment and whatever, was off the kitchen table. He noticed that. He said they went outside, right to the car. He said when they got to the car the other guy was already inside the car.
* * *
... he talked about his brother, Mark, driving slow from Dumchock's house in Kulpmont back to the other guy's house, just outside Shamokin. When they got there to the other guy's house, he said that they took some of the items that they had stolen from Conrad Dumchock's house, they took them out of the car and took them into the other guy's basement.
* * *
.. he said before they left, he said that the other guy started complaining about the things that they were leaving at his house, and he thought he wasn't getting a fair deal in what they left him, so - -and they talked about specifically money, so he was complaining about that. So Kevin said to satisfy the other guy or to keep him quiet and keep him from complaining, he said that he gave the other guy his pistol that he had, that .25 caliber pistol.
* * *
... he says that Mark mentions to him that he wants to go back to Conrad Dumchock's house and steal motorcycles that were at Dumchock's house.
* * *
... he said they drove to Conrad Dumchock's house. He said they drove around again to check things out and make sure that no one was out looking or nothing was unusual or whatever . . .
* * *
.. he said his brother, Mark, left him off, dropped him off, left him out of the car and told him to go up and get the motorcycles off the porch where they were ... Mark told him just to get one of the motorcycles, and he told him to get the better one, which he says was the Yamaha YZ, which he then talked about him having a motorcycle at one point
like that. And so he said he took that motorcycle down off of the porch and through the gate and the fence.
* * *
And he talked about at one point when he got to the end of the first block that he laid it down because he said he was trying to fool with the gas switch to make sure that the gas was on. And then he said he got to the end of the second block and he still couldn't get the motorcycle started . . .And he said again, his brother, Mark was following him in the car. He said he got on the motorcycle and he was drifting it down the hill. And he said now he was trying to jump start it. And he said he was trying to start it by compression . . .
* * *
He said he kept on going all the way until he got to the bottom of that street, to where he couldn't go any further at the bottom of Kulpmont. And then he described that he still couldn't get the motorcycle started so he just decided to ditch it.
Marinelli argues that inclusion of Kirchoff's statement was more than harmless error, because the differences between Kirchoff's statement and his statement went to the heart of the case against Petitioner at both phases of trial.
At guilt-phase, the Commonwealth introduced Petitioner's statements to the police, in which he admitted shooting Dumchock. However, Petitioner also stated that Dumchock was brutally beaten by Kirchoff before the shooting; that Petitioner did not know if Dumchock was still alive when he was shot; that Petitioner shot Dumchock under the duress of death-threats from his brother; and that, to escape his brother's threats, he shot quickly and from several feet away. Petitioner's possible guilt-phase defenses, therefore, were that he lacked a specific intent to kill (an element of first degree murder); that he was under duress, see 18 Pa.C.S. § 309; and/or that the gunshot wounds were not the cause of death (an element of any degree of murder) and that, instead, the death was caused by Kirchoff's beating. Petitioner claims that these defenses were consistent with his statement, but inconsistent with Kirchoff's.
Petitioner claims that at penalty-phase, the conflicts between his and Kirchoff's statements were critical to both aggravating circumstances - the "offense was committed by means of torture," 42 Pa.C.S. § 9711(d)(8), and the "defendant committed a killing while in the perpetration of a felony," § 9711(d)(6). The statements differed on who committed the beating and, thus, who "committed ... torture." Thus, Petitioner concludes that the statements gave rise to different inferences about whose actions were the cause of death and, thus, who "committed a killing while in the perpetration of a felony." See Commonwealth v. Lassister, 722 A.2d 657, 661 (Pa. 1998) (the (d)(6) aggravating circumstance applies only to the defendant who "performed the murder herself in the sense of bringing it to completion of finishing it"). Petitioner argues that the statements also conflicted on the issue of duress/domination, a statutory mitigating factor in Pennsylvania. See 42 Pa.C.S. § 9711(e)(5) ("defendant acted under extreme duress, although not such duress as to constitute a defense to prosecution [at the guilt-phase], or acted under the substantial domination of another person").
Once again, the Court finds that Marinelli falls short of establishing that the error had a substantial and injurious effect or influence on the verdict. Although Marinelli undoubtedly disagreed with some portions of Kirchoff's account and did not want the jury to hear Kirchoff's statement at all, this does not mean that the admission of such statements, in light of all the overwhelming evidence, had a substantial and injurious effect on the verdict. See e.g. Cruz v. New York, 481 U.S. 186, 192-93 (1987) (recognizing that a corroborating co-conspirator confession can be more damaging than a contradictory co-conspirator confession).
To the extent that some doubt remains as to whether the jury would have convicted Marinelli, without hearing Kirchoff's statements, in light of the Commonwealth's evidence apart from Kirchoff's statements, this Court cannot say that such doubt is "grave." Rather, on the basis of the entire trial transcript, the Court concludes that Marinelli has failed to show that the Bruton violation had a "substantial and injurious effect" on the fairness of his trial. See, e.g., Bond, 539 F.3d at 276 (Bruton error harmless on habeas review where eyewitness identified defendant, another witness gave statement identifying defendant as shooter which she recanted at trial, and defendant admitted the shooting but argued confession was coerced); Sanders v. Klem, 341 Fed. Appx. 839, 843 (3d Cir. 2009) (Bruton error harmless on habeas review where defendant's own statements and medical examiner's testimony that shooting was at close range established that shooting occurred during robbery rather than during flight); Robinson v Shannon, Civ. No. 08-1074, 2009 WL 2474632, at *6 (E.D. Pa. Aug.l 1, 2009) (Bruton error harmless on habeas review where defendant confessed and a witness described defendant's role in plan); see also United States v. Hardwick, 544 F.3d 565, 574 (3d Cir.2008) (Bruton error harmless beyond a reasonable doubt on direct appeal where several witnesses including co-conspirators testified to defendants' participation in murders, another witness described escalating dispute between defendant and one of victims, and shell casings from one murder scene matched those at another murder scene); United States v. Ruff, 717 F.2d 855, 858 (3d Cir.1983) (Bruton error harmless on direct review where defendant admitted crimes to witness, did not deny crimes when co-defendant admitted them to another witness, and defendant drove victim's car and had her personal effects; cf. Vazquez, 550 F.3d at 282-83 ( Bruton error not harmless on habeas review where defendant did not confess to shooting victim and no witness testified that he fired a weapon); Holland v. Attorney General of New Jersey, 777 F.2d 150, 157-59 (3d Cir. 1985) (Bruton error not harmless on habeas review where defendant did not admit crime and no eyewitness placed defendant at scene at the time of crime).
This Court finds that the state court unreasonably applied settled Supreme Court law in concluding that the trial court's admission of Kirchoff's statements did not violate Bruton. Nevertheless, in light of the other evidence admitted at trial, this Court concludes that the error was harmless. For these reasons, Marinelli's petition will be denied as to Claim I.
Claim II
Petitioner's convictions and death sentence should be vacated because his due process rights were violated under Brady v. Maryland, and its progeny.
Petitioner contends that the prosecution violated Brady by withholding: (1) mitigating information regarding Petitioner's traumatic life history; (2) exculpatory/mitigating information regarding Petitioner's intoxication at the time of the offense; (3) impeachment information regarding Commonwealth witness Mark Marinelli; and (4) impeachment information regarding Commonwealth witness Nathan Reigle. (Doc. 18, Memorandum of Law at p. 23-29).
As the Court of Appeals has recently reaffirmed, "[a] Brady violation occurs if: (1) the evidence at issue is favorable to the accused, because either exculpatory or impeaching; (2) the prosecution withheld it; and (3) the defendant was prejudiced because the evidence was 'material.' " Breakiron v. Horn, 642 F.3d 126, 133 (3d Cir.2011) (internal citations omitted). The requirement that the prosecution disclose such information extends not only to information that is actually known to the prosecutors, but also to "all information in the possession of the prosecutor's office, the police, and others acting on behalf of the prosecution." Wilson v. Beard, 589 F.3d 651, 659 (3d Cir.2009) (citing Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006)); see also Kyles v. Whitley, 514 U.S. 419, 437-38 (1995). Willful or morally culpable suppression of Brady evidence is not necessary for relief to be granted. The Supreme Court has long recognized that "[i]f the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor." United States v. Agurs, 427 U.S. 97, 110 (1976). Even a criminal defendant's failure to request favorable evidence does not abrogate the prosecution's disclosure obligations. Kyles, 514 U.S. at 432-33. "[A] defendant's failure to request favorable evidence [does] not leave the Government free of all obligation[,]" and a Brady violation might arise even "where the Government failed to volunteer exculpatory evidence never requested, or requested only in a general way." Id. at 433 (citing Agurs, 427 U.S. at 108).
"Impeachment evidence ... as well as exculpatory evidence, falls within the Brady rule." United States v. Bagley, 473 U.S. 667, 676 (1985) (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). "Such evidence is 'evidence favorable to an accused,' so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." Id. (quoting Brady, 373 U.S. at 87; citing Napue v. Illinois, 360 U.S. 264, 269 (1959)) ("The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend"). "Brady ... envisions two requirements for overturning a verdict: (1) that evidence in the possession of the government was actually suppressed, and (2) that the suppressed evidence was material." Slutzker, 393 F.3d at 386.
The Supreme Court has explicitly held that impeachment evidence need not also be exculpatory in order to be favorable, and thus discoverable, under Brady. Strickler v. Greene, 527 U.S. 263, 282 n. 21 (1999).
The "materiality" of suppressed evidence must be determined collectively, and not item-by-item. Kyles, 514 U.S. at 436. Additionally, the "materiality" test under Brady does not require a petitioner to show that "after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict." Id. at 434-35. Instead, evidence is "material" if it "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 435(footnote omitted). Indeed, a Brady violation may occur even if the record contains adequate evidence to convict after the disclosure of favorable evidence. Id. at 435 n. 8. " 'The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.' " Beard, 633 F.3d at 133 (quoting Kyles, 514 U.S. at 434). " '[C]onfidence in the outcome is particularly doubtful when the withheld evidence impeaches a witness whose testimony is uncorroborated and essential to the conviction.' " Beard, 633 F.3d at 134 n. 3 (quoting Norton v. Spencer, 351 F.3d 1, 9 (1st Cir.2003)).
The prosecution's obligation to disclose Brady materials applies even to evidence that appears redundant. "Redundancy may be factored into the materiality analysis, but it does not excuse disclosure obligations." Monroe v. Angelone, 323 F.3d 286, 301 (4th Cir.2003). Finally, the determination of materiality of evidence under Brady is a mixed question of law and fact that is not subject to the presumption of correctness of § 2254(e)(1). Simmons v. Beard, 590 F.3d 223, 233 n. 5 (3d Cir.2009) (internal quotes and citations omitted).
1. Mitigating Information Regarding Petitioner's Life History.
Petitioner claims that the prosecutor knew, but did not disclose to the defense, that Petitioner's step-mother, Charlotte Marinelli, was severely mentally ill, frightening, violent and dangerous, and committed suicide in prison. (Doc. 18, Memorandum of Law at 23).
Specifically, Petitioner states that the trial prosecutor, Robert B. Sacavage, who was the District Attorney of Northumberland County from 1983 through the time of Petitioner's trial, gave information, in September 1988, when Petitioner was 16 years old, to mental health authorities, which resulted in Charlotte Marinelli's involuntary mental hospitalization. Id. at 24. Allegedly, he informed authorities that Charlotte was "a clear and present danger to herself and others" because she was "setting fires and adulterating a neighbor's food and/or drink" with drugs. Id. Also in September, 1988, it is alleged that District Attorney Sacavage wrote a letter to Geisinger Medical Center, describing some of his knowledge of Charlotte's mental illness and violent acts, and again urging that she be involuntarily committed. Id. Petitioner claims that District Attorney Sacavage wrote, inter alia, that Charlotte was a "former mental patient"; that he believed she had committed numerous arsons and attempted arsons, including of her own home; that he believed she had tried to poison neighbors by putting drugs in their drinks and food; that police officers who observed her saw that her "behavior was 'bizarre'"; that people who lived near her were afraid of her because of her bizarre and dangerous behavior; that she was the subject of ongoing investigation, which he expected to result in criminal charges against her; that she posed a "clear and present danger to herself and to the people in the neighborhood,"and that failure to commit her could cause "a catastrophe." Id.
Attorney Sacavage is now a judge in the Northumberland County Court of Common Pleas.
Moreover, Petitioner alleges that in March 1989, District Attorney Sacavage charged Charlotte Marinelli with arson, risking a catastrophe, reckless endangering and criminal mischief. She was arrested and imprisoned in the Northumberland County Prison, where she committed suicide, by hanging herself with a bedsheet, just a few hours later. Id.
Thus, Petitioner argues that "had this information about Petitioner's traumatic background been provided to trial counsel, 'any reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses' at penalty phase, would have further investigated Petitioner's background, and would have developed the significant mitigating evidence that was available here." Id. at 26.
The Pennsylvania Supreme Court addressed Petitioner's claim as follows:
Next, Marinelli submits that the Commonwealth failed to provide him with mitigating information concerning his own upbringing. Specifically, Marinelli asserts that Robert Sacavage (now Judge Sacavage), the prosecutor assigned to his case, was aware that Marinelli had a "horrific" childhood because the prosecutor had had dealings with Marinelli's stepmother, Charlotte Marinelli (Charlotte), seven years before Marinelli's trial, and had then attempted to get Charlotte committed. Marinelli alleges that Judge Sacavage intentionally misled the jury about the childhood of Marinelli.(Doc. 27-9, App. R, Marinelli-2 at 21-24).
When questioned by counsel for Marinelli at the PCRA hearing, Judge Sacavage testified as follows:
Q: Okay. When you made that argument to the jury that was sitting over here, and you told them that, "Mr. Marinelli had a rough childhood, that he came from a broken home, the Commonwealth submits to you that on the last point there are millions of Americans that come from broken homes these days, and it doesn't necessarily equate to someone committing a very serious crime." Judge, when you made that argument you were aware that Mr. Marinelli not only came from a broken home, he came from a home where there was a psychotic individual that was attempting to kill people; were you not?
A: When did he live in this-I don't-it is difficult to answer that. Are you referring to Charlotte Marinelli? ... Charlotte Marinelli was a stepmother of Mr. Marinelli . . . I have no idea
when Mr. Marinelli resided in that household. In fact, I don't recall Kevin Marinelli residing in that household at the time that we were involved with Charlotte Marinelli . . . At the time we were involved with Charlotte Marinelli, there were no matters pertaining to Kevin Marinelli. That was -- there was no real reference to that at all. We were investigating an arson case in Atlas.
Q: Okay. And let me just sharpen this so perhaps I can make the relevance clear. You make an argument in front of a jury that my client merely comes from a broken home. When you made that argument, you knew that it is not merely a broken home, it is a home where there is a step mom that is attempting to burn down houses, poison her husband, poison other neighbors and attempting to kill her husband. You knew these things; didn't you?
A: You are entirely wrong, I believe. And I would say that you are wrong because Kevin Marinelli probably was grown by that time. I think Kevin's mother lived in Shamokin. Joseph and Charlotte lived in Atlas. I don't see your connection there . . . And with regard to those words that I spoke, trying to equate that with Charlotte Marinelli, you are totally off base. The comment there was simply that if Joseph Marinelli would have been married and then remarried, it is a broken home. I mean, and it says what it says. There are millions of Americans that come from broken homes, and they don't end up killing people.
Q: So that if you are in possession of information in your files, in your records, which goes to sentencing, which is mitigating in sentencing, you
are telling me that I'm the one that is off base if you don't disclose that? Is that what you're telling me?(PCRA N.T., 1/24/00-1/27/00, at 370-373, 380). This testimony reflects that Judge Sacavage was not aware that Charlotte and Marinelli resided together, nor did he connect his September 1988 dealings with Charlotte in any way to Marinelli. We do not find it
A: I'm telling you I don't know what relationship Kevin Marinelli had with Charlotte Marinelli, if any. And if there is something in some report in this whole case that references that, show it to me. [Whereupon PCRA counsel for Marinelli showed Sacavage the letter dated September 9, 1988.]
* * *
Q: So that I'm clear, Judge Sacavage, at the time that you tried the penalty phase in Mr. Kevin Marinelli's case you thought that Charlotte Marinelli had absolutely no connection with the man you were trying, who had the same last name; do I have that right?
A: What I thought and what information I had are two different things. One, I didn't think it because I had no information to connect Charlotte with Kevin, except that Charlotte was the second wife of Joseph Marinelli.
unreasonable that Judge Sacavage failed to turn over this letter that he had no way of connecting to the case against Marinelli. Moreover, Marinelli has not met his burden of proving a Brady violation pursuant to the test set forth in Agurs and Moose, which requires one claiming a Brady violation following a general request for exculpatory information to show that "the omitted evidence creates a reasonable doubt that did not otherwise exist." Moose, 602 A.2d at 1272 (quoting Agurs, 427 U.S. at 112, 96 S.Ct. 2392). The PCRA court properly rejected this allegation of error.
The letter to which Marinelli refers was sent by Judge Sacavage to Geisinger Medical Center in September of 1998, asking that facility to reconsider its decision not to commit Charlotte.
As the Commonwealth notes, "[n]owhere in the letter is it mentioned about the marital state of Charlotte Marinelli, to whom she was married and with whom she was residing." (Brief of Commonwealth, at 36).
Marinelli argues that when evaluating this claim, the Pennsylvania Supreme Court applied the Agurs materiality standard, a standard which he argues is contrary to the clearly established United States Supreme Court law in Kyles and Bagley, supra.
In United States v. Agurs, 427 U.S. 97 (1976), the Supreme court described three (3) different situations of prosecutorial nondisclosure and framed a different standard for determining materiality in each situation. Id. The first is an instance involving "a corruption of the truth-seeking function of the trial process," by prosecutorial misconduct as when the prosecution's case includes perjured testimony and the prosecution knew, or should have known, of the perjury. Agurs, 427 U.S. at 106. Recognizing that a conviction obtained by the knowing use of perjury is fundamentally unfair, the court stated such a verdict must be set aside "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Id. This was described as a "strict standard of materiality." Id.
The second situation arises when the defendant has made a specific request for information and the prosecution has failed or refused to respond to the request, as occurred in Brady. Non-response by the prosecutor in such a case, the Court found, "is seldom, if ever, excusable." Agurs, 427 U.S. at 106. Evidence will be deemed material if the suppressed evidence might have affected the outcome of the trial." Agurs. 427 U.S. at 106.
Thirdly, when no request is made by defendant or only a general request is made, information not revealed by the prosecutor will be held to be material only if "the omitted evidence creates a reasonable doubt that did not otherwise exist." Agurs, U.S. 427 at 112.
In United States v. Bagley, 473 U.S. 667 (1985), the Supreme Court disavowed any difference between exculpatory and impeachment evidence for Brady purposes, and it abandoned the distinction between the second and third Agurs circumstances, i.e., the "specific-request" and "general- or no-request" situations. Kyles, 514 U.S. at 433-34 (quoting Bagley, 473 U.S. at 682). Bagley held that regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id.
However, even when viewed against the backdrop of Kvles and Bagley, this Court finds the Supreme Court's decision reasonable.
First, in keeping with the mandates of Brady, the Supreme Court determined that the evidence at issue, namely the information the District Attorney possessed concerning Kevin Marinelli's stepmother, Charlotte Marinelli's mental health, was not exculpatory, in that it, in no way, connected Kevin Marinelli with Charlotte Marinelli. However, regardless of whether, or not, the prosecutor perceived a connection between Charlotte and Kevin Marinelli, the Court questions whether such information is Brady evidence at all. The facts pertaining to Charlotte Marinelli were known by or readily available to the Petitioner long before trial. It is well-settled that the government does not violate Brady by failing to disclose exculpatory or impeaching evidence that is available to the defense from other sources in the exercise of due diligence. See, e.g., United States v. Hicks, 848 F.2d 1, 4 (1st Cir. 1988) (no Brady violation for failure to disclose grand jury testimony of potential witness not called to testify at trial because defense knew of and had access to witness and thus was "on notice of the essential facts required to enable him to take advantage of [the] exculpatory testimony") (citation omitted); Lugo v. Munoz, 682 F.2d 7, 9-10 (1st Cir.1982) (government has no Brady burden when facts are readily available to a diligent defender); United States v. Zackson, 6 F.3d 911, 918 (2d Cir.1993) ("Evidence is not 'suppressed' if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence."); United States v. Perdomo, 929 F.2d 967, 973 (3d Cir.1991) (dicta) ("Evidence is not considered suppressed if the defendant either knew or should have known of the essential facts permitting him to take advantage of any exculpatory evidence."); United States v. Todd, 920 F.2d 399, 405 (6th Cir.1990) (nondisclosure of possible exculpatory material does not violate Brady when the "defendant was aware of the essential facts that would enable him to take advantage of the exculpatory evidence."); United States v. Romo, 914 F.2d 889, 899 (7th Cir.1990) (when defense counsel knows about a witness with possible exculpatory information, and has an opportunity to subpoena that witness, prosecutor has no obligation to seek out and provide the information).
Here, Petitioner's father married Charlotte Bednarchick Marinelli when Petitioner was about eleven years old, and Petitioner lived with them. (Doc. 9, petition at 27). Up until the time of her suicide in 1988, Charlotte Marinelli was psychiatrically hospitalized several times and had attempted suicide on more than one occasion. Thus, this information does not fall within Brady, as Petitioner possessed knowledge of Charlotte Marinelli's mental state long before the onus of disclosure was placed on the prosecutor.
Second, there is no evidence of record that the prosecutor willfully or inadvertently suppressed evidence of Charlotte Marinelli's mental health. As the Supreme Court noted, "[t]his testimony reflects that Judge Sacavage was not aware that Charlotte and Marinelli resided together, nor did he connect his September 1988 dealings with Charlotte in any way to Marinelli." (Doc. 27-9, App. R, Marinelli-2 at 21-24).
Lastly, the Court finds that Petitioner has not established that Charlotte Marinelli's mental health information was material and would have changed the outcome of the trial. In order to demonstrate a reasonable probability of a different outcome, the defendant must show "the favorable evidence [withheld] could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. at 420. However, in making this determination, the assessment of the omitted evidence's impact must take account of the cumulative effect of the suppressed evidence in light of the other evidence, not merely the probative value of the suppressed evidence standing alone. Id. at 436-37.
Here, as explained above, there was strong evidence of Petitioner's guilt. In light of this evidence, the court finds that even if the government had produced Charlotte Marinelli's mental health records, it cannot be said that a reasonable probability exists that the outcome of the trial would have been different. Moreover, to the extent that Petitioner argues in his supporting memorandum that "had this information about Petitioner's traumatic background been provided to trial counsel, 'any reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses" at penalty phase, would have further investigated Petitioner's background, and would have developed the significant mitigating evidence that was available here . . .", such argument goes more to the effectiveness of trial counsel in his pursuit of mitigating information that was already in Petitioner's possession, then to the prosecutor's withholding of evidence pursuant to Brady. Petitioner is not entitled to relief on this claim.
2. Mark Marinelli's Testimony.
Petitioner claims that the prosecution instructed Mark Marinelli to falsely minimize the amount of alcohol that Mark had consumed at the time of the offense, thus, knowingly presenting false evidence and suppressing impeachment information regarding Mark's ability to accurately observe and recall events from the time of the offense. (Doc. 18, Memorandum of Law at 28).
The Pennsylvania Supreme Court addressed this claim as follows:
Marinelli's final Brady contention is that Judge Sacavage impermissibly instructed Mark to provide the jury with false information and withheld impeachment information about Mark. Mark testified before the PCRA court that Judge Sacavage and other members of the prosecution team instructed him to lie to the jury. However, during the course of his testimony, Mark invoked his Fifth Amendment privilege not to incriminate himself and the PCRA court ordered his testimony stricken. Without Mark's testimony that he was told to perjure himself by the prosecution and in light of the testimony of Judge Sacavage that he in no way asked or told Mark to alter his testimony, we cannot find that Judge Sacavage impermissibly instructed Mark to perjure himself before the trial jury.(Doc. 27-9, App. R, Marinelli-2 at 24).
Aside from Mark Marinelli's bald assertion that he was instructed to lie to the jury about the amount of alcohol he consumed at the time of the offense, an assertion that was stricken as a result of Petitioner's invoking his Fifth Amendment privilege not to incriminate himself, there is no evidence to support Petitioner's allegation that the Commonwealth instructed Mark Marinelli to present perjured testimony. As such, Petitioner fails to raise a Brady claim. Thus, the Pennsylvania Supreme Court's decision that Petitioner failed to establish a Brady claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. See § 2254(d)(1).
At the PCRA hearing, Mark Marinelli asserted his Fifth Amendment privilege in response to further questioning. The PCRA court ruled that Mark properly invoked his Fifth Amendment privilege. To the extent that Petitioner now suggests that this Court should conduct an evidentiary hearing to "hear and consider Mark's testimony, or in the alternative, accept Mark's direct PCRA testimony", such suggestion intimates that the PCRA court erred when it permitted Mark Marinelli to assert his Fifth Amendment privilege. Petitioner, however, provides no support for his claim that Mark Marinelli's assertion of his Fifth Amendment privilege at the PCRA hearing violated Petitioner's constitutional rights. A federal court may intervene in the state judicial process only to correct wrongs of a constitutional dimension. See Wainwright v. Goode, 464 U.S. 78, 83 (1983). Petitioner has failed to develop a factual basis for his claim, and an evidentiary hearing is not warranted. See 2254(e)(2).
3. Mark Marinelli's Statement
Petitioner claims that the prosecution withheld from the defense impeachment information regarding the circumstances of Mark's statement, upon which his trial testimony was based. (Doc. 18, Memorandum of Law at 28). Petitioner asserts that when Mark made the statements, he was suffering severe symptoms from alcohol withdrawal and from lack of anti-seizure medication, which was denied to him by the Commonwealth, leaving him in tenuous contact with reality; and he gave the statement under threat from the Commonwealth that the Commonwealth would arrest Mark's pregnant girlfriend and charge her as an accessory after the fact, even though the Commonwealth knew she had nothing to do with the offense. Id. at 29. Citing to Crane v. Kentucky, 476 U.S. 683, 688-89 (1986), Petitioner concludes that this "evidence surrounding the making of Mark's statement, including "the physical and psychological environment that yielded the" statement, "bears on its credibility," and, thus, it is significant impeachment information that the Commonwealth knew, but did not disclose to the defense.
The Pennsylvania Supreme Court addressed this claim on appeal from the denial of Marinelli's PCRA remand petition:
We now turn to the prosecution's alleged failure to disclose material impeachment evidence concerning Mark. "[I]n order to be entitled to a new trial for failure to disclose evidence affecting a witness' credibility, the defendant must demonstrate that the reliability of the witness may well be determinative of his guilt or innocence." Johnson, 727 A.2d at 1094 (citing Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516, 523 (1997)). Marinelli takes the position that the prosecution should have turned over to him information concerning Mark's state of intoxication at the time of the offense. Marinelli posits(Doc. 27-9, App. R. Marinelli-2 at 24-25).
that he would rely on this information to demonstrate that he was in fact "quite intoxicated" at the time of the offense. (Brief of Marinelli, at 87). However, this allegation, even if proven, does not meet his burden of demonstrating that Mark's reliability was determinative of his guilt or innocence. Given the overwhelming evidence of Marinelli's guilt, including his confession, and the testimony of Dr. Kelsey, discussed infra, that Marinelli could control his actions at the time of the murder, (PCRA N.T., 1/24/00-1/27/00, at 258-263), the actions of the Commonwealth in allegedly withholding impeachment evidence do not rise to the level of a Brady violation. The PCRA court did not err in concluding that Marinelli failed to demonstrate a violation of due process.
In Bagley, the prosecutor failed to disclose evidence that the defense might have used to impeach the Government's witnesses by showing bias or interest, which is similar to the circumstances before this Court. The Court in Bagley found that impeachment evidence falls within the Brady rule. Id. In Giglio v. United States, 405 U.S. 150 (1972), the Government failed to disclose impeachment evidence of a promise made to the key Government witness that he would not be prosecuted if he testified for the Government. The Supreme Court found that
[w]hen the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within th[e] general rule [of Brady ]. We do not, however, automatically require a new trial whenever a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict. A finding of materiality of the evidence is required under Brady. A new trial is405 U.S. at 154 (citations, quotations, and alterations omitted).
required if the false testimony could in any reasonable likelihood have affected the judgment of the jury.
，
The alleged suppression of impeachment information regarding Mark's ability to accurately observe and recall events from the time of the offense notwithstanding, Petitioner has failed to demonstrate a reasonable probability that the outcome of his trial would have been different had the aforementioned evidence been presented. In reviewing the evidence against Petitioner, the state court found that "given the overwhelming evidence of Marinelli's guilt, including his confession, and the testimony of Dr. Kelsey, discussed infra, that Marinelli could control his actions at the time of the murder, the actions of the Commonwealth in allegedly withholding impeachment evidence do not rise to the level of a Brady violation. This Court agrees with the state court that, given the weight of the evidence presented against Petitioner, he has not demonstrated "a reasonable probability that the [criminal] jury would have returned a different verdict if the information had been disclosed." Smith v. Holtz, 210 F.3d 186, 198-99 (3d Cir.2000). Thus, the Pennsylvania Supreme Court's decision on this claim was not contrary to, nor an unreasonable application of, clearly established federal law.
4. Impeachment Information Regarding Nathan Reigle.
Petitioner's factual proffer is that the withheld impeachment information includes the following:
[T]he Commonwealth failed to disclose that Reigle received a deal from the Commonwealth that, in return for his testimony, he was guaranteed immunity from prosecution for his knowledge and possession of the Raven pistol and for any criminal liability related to the decedent's death; the Commonwealth failed to disclose that the interrogation of Reigle, leading to his statement incriminating Petitioner, was conducted outside the presence of an adult guardian or an attorney, despite Reigle's status as a minor and his request for the presence of his mother and an attorney, and was conducted after Reigle was taken unannounced from his home at 5:00 am by a number of law enforcement officers.(Doc. 18, Memorandum of Law at 29). Petitioner argues that this is significant impeachment information, in that the "evidence surrounding the making of Reigle's statement, including "the physical and psychological environment that yielded the" statement, "bears on its credibility," Crane, 476 U.S. at 688-89; and the undisclosed immunity deal plainly is relevant to Reigle's motive and credibility, see Giglio v. United States, 405 U.S. 150 (1972) (Brady violated where government failed to disclose immunity deal with prosecution witness). Id. at 30.
Petitioner claims that he attempted to prove the above-described proffer about Reigle by calling Reigle as a witness at Petitioner's PCRA hearing, and he states that the following occurred:
Before Reigle could be questioned, however, the Commonwealth asked the [PCRA] court to advise him "[o]f his rights since he has testified previously under oath." NT-PC-1 at 323-24. After a short debate, in Reigle's presence, the Commonwealth withdrew its objection, but ominously stated that it would wait and see if Reigle "[c]rosses into incrimination." Id. at 324. The Commonwealth's threat was clear - if Reigle testified contrary to his trial testimony, he would be charged with perjury.(Doc. 18, Memorandum of Law at 33-34). Thus, Petitioner concludes that he was prevented, through no fault of his own, from presenting Reigle's testimony at the PCRA hearing. Id.
Reigle stated "I wish to plead the Fifth Amendment," and refused to answer questions. NT-PC-1 at 325-28. The PCRA court stated:
If... he feels that any testimony he gives is going to incriminate himself in any way, including but not limited to perjury as to prior statements, I think he is entitled to invoke this privilege. So unless he chooses to answer, I'm not going to force him to in anyway. (NT-PC-1 at 326)Petition ¶¶ 142-43 (paragraph numbers omitted). The Commonwealth declined to grant immunity to Reigle, and he did not testify.
In rejecting this claim, the Pennsylvania Supreme Court found the following:
Marinelli's first claim, that the prosecution failed to disclose the terms of a deal between the Commonwealth and Reigle, is really an assertion that "the Commonwealth failed to disclose impeachment evidence regarding ... Reigle." Marinelli cites to the PCRA testimony of Robert Sacavage (now Judge Sacavage), the prosecutor assigned to his case, who testified that he "shaked" Reigle. Judge Sacavage explained that "[w]hen you're talking to individuals that are mostly(Doc. 27-9, App. R, Marinelli-2 at 20-21).
strangers to you, you want to make sure you're getting accurate information; and you warn them, certainly, that you expect them to tell the truth." (PCRAN.T, 1/24/00-1/27/00, at 358-360). As the PCRA court properly determined, this does not demonstrate the existence of a deal between Reigle and the Commonwealth and does not constitute evidence that might have affected the outcome of the trial. Accordingly, Marinelli has failed to prove a Brady violation in this regard. Moreover, we substantially addressed this contention on direct appeal, where we noted the following:
Nathan Reigle's juvenile record was disclosed by the trial court to counsel for both defendants, including the fact that Reigle was currently on juvenile probation. Further, Reigle's juvenile probationary status and possible bias or agreements with the prosecution were brought out at trial by the Commonwealth. There is thus no merit to [Marinelli's] contention that he was denied an opportunity to confront the prosecution's witness.
Aside from Petitioner's conclusory allegation that there was a deal between Reigle and the Commonwealth, there is simply no evidence of record to support this claim. Moreover, to the extent that Petitioner argues that he was unable to prove his Brady claim because he was "prevented, through no fault of his own" from presenting Reigle's testimony at the PCRA hearing, due to Reigle invoking the Fifth Amendment, this argument is without merit, as the Pennsylvania Supreme Court amply addressed the issue of what testimony was elicited during the PCRA hearing, as well as having addressed the issue on direct appeal.
The state court properly identified Brady as controlling precedent. (Doc. 42, Ex. A, PCRA Opinion at 13). In light of its factual determinations that no deal existed between the Commonwealth and Reigle, the PCRA court concluded that the prosecution had not withheld any materially favorable evidence. Id. at 14. In its decision denying petitioner's PRCA appeal, the Supreme Court of Pennsylvania also looked to Brady as the controlling source of law. (Doc. 27-9, App. R, Marinelli-2 at 19-20). Thereafter, the court found that Petitioner failed to prove a Brady violation. Id. at 21. Moreover, the Court found that the circumstances surrounding any intimation of an agreement with the prosecution were brought out at trial by the Commonwealth and Petitioner had an opportunity to adequately confront the witness about any agreement. Id. As such, the Court concludes that the decision of the state courts was neither contrary to nor an unreasonable application of Brady and its progeny. The state courts found as fact that no deal existed between the prosecution and Reigle. As already discussed, these findings are not unreasonable. Therefore, because it is axiomatic that a Brady claim cannot survive where a defendant fails to demonstrate that evidence allegedly withheld by the prosecution even existed in the first instance, Petitioner's claim will be denied. Claim III
Petitioner's convictions and death sentence should be vacated because his statements to police were obtained in violation of his Sixth Amendment right to counsel and should have been suppressed.(Doc. 9, Petition).
In support of this claim, Petitioner states the following:
On May 26, 1994, while Petitioner was held in the Northumberland County Prison on an arrest in another matter, he was transported by State Police to the basement of the Sunbury Police Station, where he was kept handcuffed and in leg irons and questioned about the Dumchock killing. He was not read his Miranda rights at that time, but was told he was not under arrest and could refuse to talk to the Troopers and be returned to prison. After about 30 minutes, he was returned to prison without making any incriminating statements. See Marinelli-1 at 214.
On May 27, 1994, a criminal complaint and warrant of arrest were filed against Petitioner in the Dumchock killing, and Petitioner was arraigned on the Dumchock charges. Marinelli-1 at 215. The Sixth Amendment right to counsel attached for purposes of the capital prosecution at this arraignment. Petitioner did not waive his right to counsel at the arraignment. To the contrary, he requested counsel to represent him on those charges.
Later that same day, the police initiated an interrogation and again questioned Petitioner. They obtained an oral statement ("May 27 statement"). On May 28, 1994, the police again questioned Petitioner, and obtained a tape-recorded statement ("May 28 statement"). The May 27 and May 28 statements were used at trial to obtain Petitioner's convictions and death sentence. The suppression court found, and the Pennsylvania Supreme Court affirmed, that Petitioner was given Miranda warnings before he made the May 27 and May 28 statements, waived his Miranda rights after they were read by police
on each occasion, and did not request counsel on either questioning occasion. See Marinelli-1 at 216.
Marinelli challenged the denial of his motion to suppress on direct appeal to the Pennsylvania Supreme Court. (See Doc. 27-2, App. I, Brief for Appellant at 17). He argued that the trial court erred in denying his suppression motion because his statements were made in violation of his right to counsel. Id.
The Pennsylvania Supreme Court resolved Petitioner's claim as follows:
We next turn to appellant's argument that police violated his right to counsel under the Fifth Amendment of the United States Constitution during all interrogations where counsel was not present, and, thus, that the suppression court erred by refusing to suppress his statements to police, (citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d378 (1981), and Commonwealth v. Santiago, 528 Pa. 516, 599 A.2d 200(1991)).(See Doc. 27-4, App K, Marinelli-1 at 18, 20-21).
* * *
In the present matter, appellant testified at the suppression motion hearing that he had been read his rights on May 27, 1994 prior to his arraignment, and that afterwards, he had requested legal counsel on May 27, 1994 before giving his confession, but was advised by the troopers that it would not help him. (N.T. 1/31/95, at 72-73). Appellant, however, could not recall which officer he had advised that he wished legal counsel, and admitted to signing the Miranda waiver card on May 27, 1994. (N.T. 1/31/95, at 74-75). Corporal Latsha testified that he had advised appellant of his Miranda rights and witnessed appellant's signature on the waiver card, and that at no time had appellant requested to speak with an attorney. (N.T. 1/31/95, at 79-80). The suppression court found appellant's testimony totally lacking in credibility, and found that the testimony of each of the
troopers who had interrogated appellant showed that appellant was neither confused nor coerced, but willingly gave his statements to police, and that each of the interviews with appellant at which he gave incriminating statements was preceded by a recitation of Miranda warnings to appellant. Thus, the court refused to suppress appellant's statements.
Upon a review of the testimony and rulings of the suppression court, we find the record supports the findings of the suppression court. See Queen, supra. Unlike the situation in Santiago or Edwards, there is nothing credible in the record here which would suggest that appellant invoked his Fifth Amendment right to counsel. We therefore affirm the suppression court.
Petitioner argues that his May 27 and May 28 statements resulted from police-initiated interrogation after Petitioner asserted his right to counsel at his arraignment on the Dumchock charges, and that under these circumstances, the state court findings of Miranda rights waivers are not dispositive because Petitioner's Sixth Amendment right to counsel was violated, and the May 27 and May 28 statements should have been suppressed under Michigan v. Jackson, 475 U.S. 625, 636 (1986), and related precedents. (Doc. 9, Petition).
Respondents concede that Marinelli raised the issue that the Pennsylvania Supreme Court overlooked controlling United States Supreme Court constitutional precedent set forth in Michigan v. Jackson, 475 U.S. 625 (1986), both on collateral review, and in a separate petition for writ of habeas corpus. (See Doc. 27, response at 61, 62). However, in its Opinion dated November 27, 2006, the Supreme Court noted that Marinelli's claim that the police violated his right to counsel when they interrogated him in the absence of counsel had been previously litigated on direct appeal and therefore the Court declined to review his claim on the merits. (See Doc. 27-11, App. W, Marinelli-3 at 8, n. 12). Respondents acknowledge that claims that are deemed "previously litigated" in PCRA court are not procedurally defaulted for federal habeas purposes and the Court may review the claim on the merits. See, e.g., Moore v. Beard, 2007 U.S. Dist. LEXIS 91025, at *6 n.l (M.D. Pa. Dec. 11, 2007) ("A finding that a claim was 'previously litigated' carries no implication of procedural error on the petitioner's part, and instead, indicates that the petitioner previously raised the claim, but was unsuccessful.").
Finding that a previously litigated claim is not procedurally defaulted for federal habeas review, the Court must now reach the merits of Petitioner's claim. However, because the claim was properly presented to the state court, but not adjudicated on its merits, the deferential standards provided by AEDPA do not apply. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). "In such an instance, the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact, as a court would have done prior to the enactment of the AEDPA." Id. (citing McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).
By its own terms, § 2254(d) applies only to claims already "adjudicated on the merits in State Court proceedings."
Sixth Amendment right to counsel
Marinelli moved to suppress the statements he made on May 27 and May 28, on the basis that the interviews violated his Sixth Amendment right to counsel. The Sixth Amendment establishes a criminal defendant's right to the assistance of counsel. See United States v. Gouveia, 467 U.S. 180, 187(1984). This right to counsel arises at the initiation of adversarial judicial proceedings against the defendant. See Kirbv v. Illinois, 406 U.S. 682 (1972). Judicial proceedings against an accused include the "formal charge, preliminary hearing, indictment, information, or arraignment." Id. at 688-89. Thus, when formal criminal charges are brought against an accused, the Sixth Amendment establishes the defendant's right to have an attorney to assist in his defense. Id.
The defendant may choose to exercise his right to counsel or face the government prosecution without an attorney. See Patterson v. Illinois, 487 U.S. 285, 291 (1988). There, the Court made clear that
So long as the accused is made aware of the 'dangers and disadvantages of self-representation' during post-indictment questioning by use of the Miranda warnings, his waiver of his Sixth Amendment right to counsel at such questioning is 'knowing and intelligent'. Id. at 300.
A defendant invokes his Sixth Amendment right to counsel by retaining an attorney or requesting that an attorney be appointed for him. See id. at 290, n. 3. Defendants' invocation of their right to counsel under the Sixth Amendment must be clear and unequivocal. See Davis v. United States, 512 U.S. 452 (1994).Once a defendant asserts a right to counsel at an arraignment or similar proceeding, any subsequent waiver of that right is invalid. Michigan v. Jackson, 475 U.S. 625, 636 (1986). The government is forbidden from deliberately eliciting incriminating evidence from the defendant about the crime outside the presence of his counsel. See Massiah v. United States, 377 U.S. 201 (1964). The Sixth Amendment right to counsel is "offense-specific," in that it attaches only to the specific offense that has been formally charged. See McNeil v. Wisconsin, 501 U.S. 171 (1991). Because the Sixth Amendment right to counsel attaches only to a formally-charged offense, the government may question the defendant outside the presence of counsel about crimes that have not been charged. See Moran v. Burbine, 475 U.S. 412 (1986).
In Davis, the Supreme Court held that in order for a suspect to invoke a right to counsel, he or she must do so clearly and unequivocally. See 512 U.S. at 459. The suspect in Davis stated during a police interview, "Maybe I should talk to a lawyer." The Court held that this statement was too ambiguous to invoke the suspect's right to counsel.
The effect of the Davis ruling may be to place the burden of persuasion on the discrete issue of invocation of the right to counsel on the defendant to establish that he clearly invoked his Sixth Amendment right. See id. Thus, unlike the burden of persuasion in motions to suppress arising under the Fourth or Fifth Amendments, in which the government must prove that it did not violate the defendant's constitutional rights, see, e.g., Bumper v.. North Carolina, 394 U.S. 165, 183 (1968), Colorado v. Connelly, 479 U.S. 157, 168 (1986), the government may not be required to persuade the court that the defendant did not invoke his Sixth Amendment right to counsel. Instead, the defendant in a Sixth Amendment case may have to establish that his statement was a clear and unequivocal invocation of his right to counsel. The issue is not whether, under an objective standard, the statement was ambiguous, but whether it was unequivocal. Thus, the burden of persuasion for this component of a motion to suppress may have effectively shifted to the defendant. See id.
If an accused does not invoke his Sixth Amendment right to counsel, he can waive his right to an attorney and face the government prosecution without counsel. See Patterson, 487 U.S. at 291. The Patterson Court expressed its view that if an accused "knowingly and intelligently" chose to proceed without the aid of counsel "we see no reason why the uncounseled statements he then makes must be excluded at his trial." A waiver by an accused of his Sixth Amendment right to counsel is valid only if the accused knew of his right to have counsel and of the consequences of forgoing that right. See id. at 292-3. For waiver of the right to counsel at postindictment questioning, the Miranda warnings are sufficient to apprise an accused of his right to counsel and the consequences of forgoing counsel. See id. at 298-99. Therefore, if a defendant has not invoked his Sixth Amendment right to counsel and has received Miranda warnings, he can properly waive his Sixth Amendment right to counsel for postindictment questioning with a Miranda waiver. See id. at 296.
A Sixth Amendment right to counsel attached for Marinelli's May 27, 1994 charges in state court. Marinelli alleges that he invoked his Sixth Amendment right to counsel on the basis of his claim that he requested counsel at his arraignment on the charges. If Marinelli had requested counsel or an attorney had entered an appearance to defend Marinelli on the pending charges, he would have been deemed to invoke his Sixth Amendment right to counsel and, of course, the government would have been precluded from questioning him about that charge.
However, there is no credible evidence on the record that Marinelli had invoked his Sixth Amendment right to counsel. In fact, in addressing Petitioner's Fifth Amendment claim, the Pennsylvania Supreme Court, relying on the suppression court's findings, established that Marinelli had not invoked his right to counsel at anytime on May 27, 1994. (See Doc. 27-4, App K, Marinelli-1 at 18, 20-21). These factual findings are entitled to a presumptions of correctness pursuant to 28 U.S.C. § 2254 (d)(2) and (e)(1), and Marinelli has offered no evidence to overcome this presumption.
As further evidence that Marinelli did not have an attorney at the time of the interviews, Trooper Clark immediately stopped an interview on May 26, 1994, when Marinelli stated that he did not want to cooperate with the government any further. (See Doc. 44-1, N.T. 1/1/95, at 45-46). Trooper Clark's action corroborates the conclusion that Marinelli did not have an attorney before the interviews and that the government was not trying to coerce Marinelli into giving a statement outside the presence of his counsel.
In contrast to the evidence that Marinelli failed to invoke his Sixth Amendment right to counsel, no credible evidence has been produced that Marinelli had invoked his right to counsel. All Marinelli has done to overcome the presumption afforded the state courts' finding of facts is to maintain his assertion that he requested counsel at his arraignment; he has provided no evidence other than his own self-serving affidavit, penned years after his conviction. (See Doc. 44-5, Ex. 4, Affidavit/Declaration of Kevin Marinelli, dated July 11, 2008). This Court cannot credit Marinelli's affidavit, since Petitioner's statements and the testimony elicited during Petitioner's suppression hearing, stand in stark contrast to Petitioner's belated, self-serving allegations that he was coerced into making a confession in violation of his right to counsel. In addition to Corporal Latsha, and Troopers Wilson and Bramhall, testifying that Petitioner never asked for an attorney (see Doc. 44-1, N.T. 1/1/95, at 17, 55, 80), Petitioner, himself, admits to signing a waiver card, waiving his right to counsel). Id. at 74, 75. The Trial Court determined and the Pennsylvania Supreme Court affirmed that Marinelli "was provided with a copy of the criminal complaint filed against him and the attached affidavit. At 5:15 p.m. on May 27, following his arraignment on the charges in this case, appellant was advised of his Miranda rights and he signed a Miranda warning card. An oral confession was taken from appellant by Troopers Richard Bramhall, Jr. and Corporal Carey Latsha. Both Trooper Bramhall and Corporal Latsha testified that appellant did not request counsel at any point during his interview." 690 A.2d 203, 215 (Pa. 1997). Further, at the hearing held on Marinelli's Motion to suppress his oral confession, the Pennsylvania Supreme Court noted that the suppression court found Marinelli's testimony "totally lacking in credibility." The Supreme Court's treatment of this matter is as follows:
In the present matter, appellant testified at the suppression motion hearing that he had been read his rights on May 27, 1994 prior to his arraignment, and that afterwards, he had requested legal counsel on May 27, 1994 before giving his confession, but was advised by the troopers that it would not help him. (N.T. 1/3/95, at 72-73) Appellant, however, could not recall which officer he had advised that he wished legal counsel, and admitted to signing the Miranda waiver card on May 27, 1994. (N.T. 1/31/95, at 74-75) Corporal Latsha testified that he had advised appellant of his Miranda rights and witnessed appellant's signature on the waiver card, and that at no time had appellant request to speak with an attorney. (N.T. 1/31/95, at 79-80)
The suppression court found appellant's testimony totally lacking in credibility, and found that the testimony of each of the troopers who had interrogated appellant showed that appellant was neither confused nor coerced, but willingly gave his statements to police, and that each of the interviews with appellant at which he gave incriminating statements was preceded by a recitation of Miranda warnings to appellant. Thus, the court refused to suppress appellant's statements. 690 A.2d at 216.
Section 2254(e)(1) mandates that:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
Here, Petitioner has failed to meet his burden of rebutting the statutory presumption of correctness by clear and convincing evidence.
In accepting the state courts' factual findings as its own that Marinelli had not invoked his Sixth Amendment right to counsel before the challenged interviews, this Court finds that Marinelli's waiver of his Miranda rights before the challenged interviews was constitutionally sufficient to waive his Sixth Amendment right to counsel. See Patterson, 487 U.S. at 291, 296. Therefore, the government was free to question Marinelli about the May 18, 1995 murder charges without violating Marinelli's Sixth Amendment right to counsel. Because the questioning did not violate Marinelli's constitutional right to counsel, his statements from the interviews on May 27 and May 28, 1994 were admissible in their entirety.
Once the state court findings are accepted, as they must be under Section 2254(e)(1), given the absence of any clear and convincing evidence to the contrary, that Marinelli did not request the assistance of counsel after being given his Miranda warnings by Trooper Bramhall and Trooper Latsha, and thereafter provided a confession of his involvement in the murder of Conrad Dumchock, his statements cannot be deemed to have been obtained in violation of his Fifth or Sixth Amendment rights. Claim IV
Petitioner's convictions and death sentence should be vacated because they were obtained with unscientific, unreliable and misleading "expert" testimony.
Petitioner states that at trial, the Commonwealth presented extensive testimony from Dr. Mihalakis, a forensic pathologist, and that the PCRA proceedings show that Dr. Mihalakis' testimony was unscientific, unreliable and misleading, in violation of Pennsylvania law and the Sixth, Eighth and Fourteenth Amendments. (Doc. 9, Petition at p. 62). Petitioner claims that he was also denied his Sixth Amendment and Fourteenth Amendment rights to effective assistance of counsel at trial and on direct appeal when counsel failed to seek an appropriate defense expert to assist counsel in cross-examining Dr. Mihalakis and presenting rebuttal testimony; failed to effectively cross-examine or otherwise counter Dr. Mihalakis' damaging testimony; failed to show that the testimony had no scientific basis, was unreliable and was misleading; and failing to effectively litigate these issues on direct appeal. Id.
The Pennsylvania Supreme Court addressed this issue on appeal from the denial of Petitioner's PCRA petition, as follows:
Allegedly Inflammatory and Misleading Expert Testimony(Notes of Testimony, Trial Hearing (Trial N.T.), dated 5/12//95, at 181-183). The Commonwealth contends that a forensic pathologist can determine, from the location and type of the wounds, the path of the bullets in the body, and the gunshot residue present, whether the wound was proximal and from where the bullet originated. Marinelli concedes that it is within the expertise of a forensic pathologist to determine whether a wound was proximally inflicted, but submits that Dr. Mihalakis had no expertise from which to testify about the location of the shooter.
11. Should Marinelli's conviction and death sentence be vacated because they were obtained by inflammatory, unscientific, unreliable, and misleading expert testimony?
Marinelli next alleges that Dr. Isadore Mihalakis (Dr. Mihalakis), a forensic pathologist, answered questions concerning crime scene analysis and bullet trajectory that were outside of his expert discipline, and that trial counsel, Rosini, was ineffective for failing to object to the testimony of Dr. Mihalakis, or in the alternative, effectively cross-examine the doctor or present his own witnesses to counterbalance the testimony. The trial court qualified Dr. Mihalakis, who performed the autopsy on Dumchock, as an expert in the field of forensic pathology. On direct appeal, we characterized the testimony of Dr. Mihalakis as follows:
A forensic pathologist, Dr. Isidore [sic] Mihalakis, determined the victim's cause of death was two gunshot wounds to his head, and the killing was considered a homicide. Dr. Mihalakis testified that prior to receiving the two gunshot wounds to his head, the victim received two types of impact injuries: those from a cylindrical
object, consistent with the throat of a baseball bat, and those administered by kicks. The victim had separate injuries to his left arm and hand, and had injuries to his left leg, upper chest, right side of his abdomen, right hand, base of his neck and the skin around his neck, left ear, cheek, head and scalp. The victim suffered twelve fractures to his ribs, and forty-seven blunt force injuries in all.Marinelli, 690 A.2d at 212. Marinelli submits that this testimony was unfairly prejudicial to him during both the guilt and penalty phases of his trial. Marinelli posits that Dr. Mihalakis' unscientific and misleading opinion unfairly foreclosed to him potential defenses of duress, lack of specific intent to kill, and that the gunshot wounds were not the cause of death, and the testimony was critical to the prosecution in establishing the torture aggravating circumstance.
Dr. Mihalakis testified the victim's bruises indicated that considerable force was used on him and that he suffered extreme pain as a result of the beating. Dr. Mihalakis further determined that the victim's wounds resulted from a beating which lasted at least one half hour and perhaps as long as two hours. Moreover, the forensic pathologist determined that because there was gunpowder residue present on the victim's hand from his attempt to ward off his killer and his eye was open at the time he was shot, the victim had been conscious and aware of what was happening during the beating.
In effect, Marinelli is raising three separate claims: (1) counsel rendered ineffective assistance by failing to object to portions of the testimony of Dr. Mihalakis; (2) counsel rendered ineffective assistance by failing to adequately cross-examine Dr. Mihalakis on these points; and (3) counsel rendered ineffective assistance by failing to call defense experts to rebut this testimony. It is well-settled that one alleging ineffective assistance of counsel must show: (1) that the [underlying] claim is of arguable merit; (2) that counsel had no
reasonable strategic basis for his or her action or inaction; and, (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999). Counsel will not be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Tilley, 566 Pa. 312, 780 A.2d 649 (2001).
"[T]he question whether a witness is qualified to testify as an 'expert' is within the sound discretion of the trial court and will not be overturned except in clear cases of abuse." Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373, 375 (1977). "In Pennsylvania, a liberal standard for the qualification of an expert prevails. Generally, 'if a witness has any reasonable pretension to specialized knowledge on the subject matter under investigation he may testify and the weight to be given to his evidence is for the [fact finder].' " Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26,31 (1988) (quoting Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914, 924 (1974)). "It is also well established that an expert may render an opinion based on training and experience; formal education on the subject matter is not necessarily required." Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242, 255 (1998), cert. denied, 528 U.S. 830, 120 S.Ct. 86, 145 L.Ed.2d 73 (1999).
Marinelli does not argue that Dr. Mihalakis should not have been qualified as an expert; rather, he posits that Dr. Mihalakis exceeded his expertise when he testified about: (1) gunshot residue on Dumchock's hands; (2) the significance of Dumchock's eyes being open at the time of the shooting; and (3) the trajectory of bullets, based on the location of shell casings recovered from the floor of the crime scene. Clearly, gunshot residue on the hands of a murder victim and the state of consciousness of that victim at the time of the shooting are within the expertise of a forensic pathologist and trial counsel was not ineffective for failing to object to that testimony. Whether Dr. Mihalakis exceeded the scope of his expertise in testifying about the trajectory of bullets based on the locations of the shell casings, however, is not as clear.
When questioned by the prosecution at trial, Dr. Mihalakis testified concerning the bullet trajectories as follows:
Q: Dr. Mihalakis, if there were testimony that-testimony that a casing from a .25 caliber bullet was found-let the record reflect that I'm pointing to the area of a hallway located behind the body in the area that is adjacent to the top of a stairway. If the casing was-one casing was found in this particular area and there's testimony that the second casing was behind the body, with respect to your expertise of gunshots and so forth, where would the shooter most likely be located.
A: The shooter, Mr. Sacavage, would have to be in the hallway because the vast majority of automatic or semiautomatic firearms, they will eject to the right, some forward, some to the side, some backward. So that if we find a bullet-a casing rather-then we know that since there is a stairway and there is a wall, the options for the individual who is doing the shooting are very limited and he has to be in the hallway at the-close to the foot end of the body or near there.
Q: And if there were some testimony that one of the assailants stated that when he fired the shots that he was-I'm just outlining an area that I will describe as the southeast corner bedroom, and I'm pointing to an area, doctor, where the lines are broken up and that would be an exit to a stairwell, to an attic stairwell; if the shooter is describing to a person that he shot the bullets from the area near the entrance to the attic where the pointer is pointing to, would that be consistent with the distance to the gunshot and what would you say with regard to the casings that were described out in the hallway.
A: Well, there are two questions here. The first is, "Is it consistent with the distance?" I said that the one at the inner end of the left eyebrow is a near contact wound or extremely close range. Therefore the distance is proximal. The wound to the globe of the left eye, I can't tell where-it could be distant, but it could be close range. There is nothing in the white of the eye to indicate any residue. So therefore assuming distance the distance may correspond. However the location of the casings or the empty cartridges does not correspond because they were found within the hallway.
Q: In light of the position of the casings and the gunshot residue, would you have an opinion in light of those factors whether the shooter would have been located in the area I'm pointing to near the exit... to an attic stairwell?
A: Yes, I have an opinion.
Q: Would you give that opinion to the jury?
A: That the individual or individuals doing the shooting could not have been in that location.
While the underlying claim may have arguable merit, Marinelli has failed to demonstrate that counsel did not have a reasonable basis for not objecting to this testimony. When questioned by Marinelli's PCRA counsel at the PCRA hearing, Rosini, the trial, sentencing, and direct appeal attorney of Marinelli, testified as follows:
Q: Did you have a tactical or strategic reason for not objecting to-and this is my characterization, Dr. Mihalakis testifying outside his field, that he was qualified in Pennsylvania, in forensic pathology?(Notes of Testimony, PCRA Hearing (PCRA N.T.), dated 1/24/00-1/27/00, at 233-234). As Rosini indicated at the PCRA hearing, this issue was irrelevant to trial strategy, which was to say that Marinelli was involved in the shooting, but that his involvement was forced by Mark and Kirchoff. Accordingly, Rosini testified that "the strategy was not to say he did not do it, but [rather] to mitigate his involvement." (PCRA N.T., 1/24/00-1/27/00, at 252). Thus, Rosini had a reasonable strategic basis for failing to object to this testimony as it was not inconsistent with Marinelli's defense.
A: I don't know what specific testimony you're referring to.
Q: Do you recall whether or not Dr. Mihalakis started making reference to forensic ballistic issues? For example, how a shell ejected from a semiautomatic weapon?
A: I vaguely recall that. Do you want me to answer the initial question? I believe the question was, did I have a tactical reason for not objecting to that?
Q: Yes.
A: Yes. Tactically, as far as I was concerned the manner of death was never an issue.... So those questions I did not feel-I attempt, when I am trying a case, to not object to things that are not relevant to the strategy I'm using.
So, where the shell went or who handled the gun, or the method of death, at that time and that place was not an issue. So there was no real point in objecting to it.
Marinelli's other contentions in this regard are that Rosini was ineffective for failing to call defense expert witnesses to rebut the testimony of Dr. Mihalakis and for failing to properly cross-examine the doctor. "Trial counsel need not introduce expert testimony on his client's behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony." Copenhefer, 719 A.2d at 253; accord Commonwealth v. Williams, 537 Pa. 1,640 A.2d 1251, 1265 (1994). Additionally, "trial counsel will not be deemed ineffective for failing to call a medical, forensic, or scientific expert merely to critically evaluate expert testimony which was presented by the prosecution." Copenhefer, 719 A.2d at 253, n. 12. Thus, the question becomes whether or not Rosini effectively cross-examined Dr. Mihalakis. The testimony of Dr. Mihalakis about the trajectory of the bullets and the gunshot residue on Dumchock was not inconsistent with the trial strategy of Rosini, either during the guilt phase or the penalty phase. Thus, Rosini had a reasonable strategic basis for not cross-examining Dr. Mihalakis on these issues. Whether the victim's eyes were open and, thus, whether Dumchock was conscious at the time of the shooting, however, was material to the existence of the torture aggravating circumstance. Accordingly, we must determine whether Rosini effectively cross-examined Dr. Mihalakis on this question.
At sentencing, the prosecution moved into evidence "all the matters offered during the trial, the evidence particularly with respect to the aggravating circumstances...." (Trial N.T., 5/19/95, at 907). The parties did not present any substantial additional testimony during the penalty phase, so the court instructed the jury to refer to the evidence presented during the guilt phase when making its determination concerning aggravating and mitigating circumstances. During the guilt phase of trial, Rosini elicited the following cross-examination testimony from Dr. Mihalakis:
Q: Is there any way from your examination that you could tell whether the victim was conscious for that half hour [between the beating and the shooting]? In other(Trial N.T., 5/12/95, at 199-201). Through this line of questioning, Rosini attempted to establish the possibility that Dumchock was not conscious at the time he was shot through the eye, which would militate against the aggravating circumstance of torture. Rosini testified at the PCRA hearing that his cross-examination of Dr. Mihalakis was designed to elicit a response that Dumchock could have been dead when he was shot, providing an alternate reason why Dumchock's eyes were open. (PCRA N.T., 1/24/00-1/27/00, at 234-235). We find that Rosini effectively cross-examined Dr. Mihalakis on the torture aggravating circumstance and, accordingly, Marinelli has failed to prove that Rosini rendered ineffective assistance of counsel in this regard.
words, it is possible that the victim, if he had received one of the head blows or something like that initially, could have been unconscious for that half hour period?
A: I believe that he was indeed conscious and aware what was happening because, (a), as [the prosecution] brought out, we have the gunpowder residue from the hand which would indicate that the hand was raised. And in order to raise a hand in response to something one has to be aware that something is about to happen.
* * *
Q: Is there any way to know if he was unconscious for a period of time before that? In other words, isn't is possible that he was unconscious and if somebody tried to smother him or something this would have caused a reaction?
A: Yes, I-I-I believe I can answer that, sir. I don't believe he was unconscious. The only reason why I say that is I have a fairly broad experience with about thirty or so of forensic-rather medical practice, and, you know, two injuries to the head are not necessarily equivalent to knocking somebody out, (a), because-and there's a reason for this. And that has to do with the brains [sic] capacity to compensate.
The "clearly established Federal law" for AEDPA purposes in which to analyze Marinelli's claim of ineffective assistance is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Marinelli must show that his counsel's representation fell below an objective standard of reasonableness. 466 U.S. at 688. The law presumes that counsel was effective. Id. at 689. Strickland also requires Marinelli to demonstrate that he was prejudiced by his counsel's alleged deficient performance. This requires him to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
The Court in Strickland noted that although it had discussed the performance component of an effectiveness claim prior to the prejudice component, there is no reason for an analysis of an ineffectiveness claim to proceed in that order. 466 U.S. at 697. Consequently, if it is more efficient to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, as it is here, this course should be followed. Id.
The Pennsylvania Supreme Court's adjudication was not "contrary to" Strickland. In Commonwealth v. Pierce, 515 Pa. 153 (1987), the Court held that Pennsylvania law forjudging ineffectiveness corresponds with the Strickland standard. See also Commonwealth v. Kimball, 555 Pa. 299 (1999); Jacobs v. Horn, 395 F.3d 92, 106 (3d Cir.2005) ("We have previously ruled that Pennsylvania's test for assessing ineffective assistance of counsel claims is not contrary to Strickland.") (citing Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir.2000)). Although not citing directly to Strickland, the Pennsylvania Supreme Court did outline the elements of such a claim—failure to raise a meritorious claim, lack of strategic reason, and prejudice. (See Doc. 27-9, App. R, Marinelli-2 at 12-13).
Although Pennsylvania courts articulate a three-prong test for gauging ineffective assistance claims and Strickland sets forth its test in two prongs, the legal evaluation is the same, and the differences merely reflect a stylistic choice on the part of state courts. Rompilla v. Horn, 355 F.3d 233, 248 (3d Cir.2004), rev'd on other grounds sub nom„ 545 U.S. 374 (2005); Werts, 228 F.3d at 202-04.
Moreover, the U.S. Supreme Court has counseled that a federal habeas court should not be quick to assume that the state court applied the wrong law, even if the state court was imprecise in language it used in evaluating a claim. Woodford v. Visciotti, 537 U.S. 19, 23-24 (2002) (per curiam) (finding the Court of Appeals for the Ninth Circuit's "readiness to attribute error [to the state court] is inconsistent with the presumption that state courts know and follow the law," and is "also incompatible with § 2254(d)'s 'highly deferential standard for evaluating state-court rulings,' which demands that state court decisions be given the benefit of the doubt."); see also Williams v. Beard, 637 F.3d 195, 233 n. 30 (3d Cir.2011). In Visciotti, the Supreme Court admitted that even it has stated imprecisely Strickland's prejudice standard at points in some of its decisions, and noted that the California Supreme Court's shorthand reference to the Strickland standard that was not entirely accurate "can no more be considered a repudiation of the standard than can this Court's own occasional indulgence in the same imprecision." 537 U.S. at 24 (citing Mickens v. Taylor, 535 U.S. 162, 166 (2002); Williams, 529 U.S. at 393).
Therefore, the Pennsylvania Supreme Court applied the correct legal standard, and that is sufficient to satisfy review under the "contrary to" clause of § 2254(d)(1). Williams, 529 U.S. at 406; Jacobs, 395 F.3d at 106; Werts, 228 F.3d at 202-04.
Thus, the only remaining question to decide is whether the Pennsylvania Supreme Court's adjudication of these ineffective assistance claims was an "unreasonable application of Strickland or "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)(1)-(2). In conducting this analysis, the Court is cognizant that:
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both "highly deferential," [Strickland, 466 U.S.] at 689; Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and when the two apply in tandem, review is "doubly" so, [Knowles v. Mirzayance, 556 U.S. 111 (2009) ]. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123-25.Harrington v. Richter, — U.S. —, 131 S.Ct. 770,788, 178 L.Ed.2d 624 (2011). See also Knowles, 556 U.S. at 123. ("[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.") (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.")).
Finally, the reviewing court must evaluate counsel's performance in light of the totality of the evidence. Strickland, 466 U.S. at 695-96; see also Jacobs, 395 F.3d at 106-07. It is the petitioner's burden to establish both deficient performance and resulting prejudice in order to state an ineffective assistance of counsel claim. Strickland, 466 U.S. at 697; see also Jacobs, 395 F.3d at 102.
Petitioner claims that Dr. Mihalakis' testimony about the supposed significance of the locations of the shell casings was important because it appeared to support the prosecution's claim that Petitioner shot from very close/contact range, and appeared to negate Petitioner's statement that he shot under duress, from a distance and without intent to kill. (Doc. 18, Memorandum of Law at 54). As such, Petitioner argues that the Pennsylvania Supreme Court's holding that counsel had a reasonable strategic basis for failing to object to this testimony, as it was not inconsistent with Marinelli's defense, "is not contrary to law and unreasonable on the law and facts". Id. The Court finds no merit to Petitioner's argument.
The facts addressing the soundness of counsel's trial strategy, as elicited by the PCRA court at Petitioner's PCRA hearing, and relied upon by the Pennsylvania Supreme Court, are as follows:
(Doc. 42-29, Ex. I, Part5, PCRA N.T., 1/24/00-1/27/00, at 233-235).
DIRECT EXAMINATION
Q. Did you have a tactical or strategic reason for not objecting to - and this is my characterization, Dr. Mihalakis testifying outside his field, that he was qualified in Pennsylvania, in forensic pathology?
A. I don't know what specific testimony you're referring to.
Q. Do you recall whether or not Dr. Mihalakis started making reference to forensic ballistic issues? For example, how a shell ejected from a semiautomatic weapon?
A. I vaguely recall that. Do you want me to answer the initial question?
Q. Thank you. That is what my co-counsel said I should ask.
A. I believe the question was did I have a tactical reason for not objecting to that?
Q. Yes.
A. Yes. Tactically, as far as I was concerned the manner of death was never an issue.
Q. Right.
A. So those questions I did not feel - I attempt, when I am trying a case, to not object to things that are not relevant to the strategy I'm using. So, where the shell went or who handled the gun, or the method of death, at that time and that place was not an issue. So there was no real point to objecting to it.
Q. Well, I'll agree with you that the question who was handling the gun was out. That was pretty well established. But did not the torture aggravator loomed large in this litigation?
A. The torture certainly was an issue.
Q. Did not Dr. Mihalakis, if you recall, did he not offer opinions as to the flight of projectiles, the path of projectiles and from that attempt to establish, and did establish within a reasonable degree of medical certainly the position of the victim's head when the shot was fired. Do you recall that?
A. Yes. There was substantial, I think I questioned either he or the trooper at length about that.
Q. When Dr. Mihalakis was on the stand and you started hearing this and how he was explaining this what did you think? A. I thought he was incorrect. And that is why I would attempt to cross-examine him on that issue.
Q. There was testimony from Dr. Mihalakis about the victim being shot in the eye; do you recall that?
A. Yes.
Q. And Dr. Mihalakis testified that because that projectile did not pierce the eyelid, therefore, the eyes, were open, and ipso facto, the victim was conscious; do you recall that?
A. Yes, I do.
Q. What did you think about that when he said that?
A. I believe my cross-examination indicates that I tried to turn that around to show that the victim was dead when he was shot, and that is why his eyes weren't closed.
Q. Would you agree with me that a defense forensic pathologist or a defense neurologist would have been useful in attempting to attack the testimony of Dr. Mihalakis as it relates to torture?
A. Once I heard his testimony, yes. At that stage, it may have been helpful. We were already in the middle of the trial.
(Doc. 42-29, Ex. I, Part5, PCRA N.T., 1/24/00-1/27/00, at 269-270).
CROSS EXAMINATION
MS. TARGONSKI: Now, relative to the testimony of Dr. Mihalakis, why didn't you hire an independent pathologist?
THE WITNESS: Because as far as I was concerned, the method of death or the mode of death was never an issue. All the statements, the pathology report and everything else I knew about the death, there was no contradiction that he as, you know, he was hit more than once. There is obviously an argument about how much he was hit. And he was shot. As the locations and the method, I don't think there was ever an issue. So I didn't feel there was any point in duplicating what was already done.
Q. And relative to the issue of hiring an independent ballistic expert, did you have a reasonable reason for not doing that?
A. Well, to be perfectly honest with you, at the time, preparation for trial, I didn't think there was an issue. During the testimony of Dr. Mihalakis and one state trooper, it became apparent, at least in my mind, that Kevin or whomever could have been standing where they alleged he was standing and so on; but that was in the middle of the questioning, not in preparation.
(Doc. 42-29, Ex. I, Part5, PCRA N.T., 1/24/00-1/27/00, at 275-276).
REDIRECT EXAMINATION
Q. For purposes of the record, it is Page 191 of the notes of trial. If a ballistics examiner had actually come into the courtroom, could you not have attempted to elicit information from the ballistics examiner about the questions you were having with respect to Dr. Mihalakis's theory or explanation about how projectiles were traveling and the angles?
MS. TARGONSKI: I'm going to object. It calls for speculation.
THE COURT: Not really. I think it is calling for an answer to his trial strategy and that is what we're questioning. I'm going to overrule your objection and allow him to answer.
THE WITNESS: I did not then, nor do I now, think that since there was no testimony that he did the shooting that since he, in his statement, said he did the shooting, that where the shot came from, the right side of the victim or the left side of the victim, really were significant.
Accepting the state court findings with respect to these facts, as the Court must under Section 2254(e)(1), Marinelli has not shown that the state court's rejection of his ineffective assistance of counsel claims represented an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
The state courts found that there was a tactical basis for trial counsel's decisions, and that factual determination is binding in federal court. See Berryman v. Morton, 100 F.3d 1089, 1095 (3d Cir.1996). "Under the doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard," Knowles, 556 U.S. at 123, Marinelli's claim that his defense counsel was ineffective fails. As explained in Price v. Wynder, 350 F. App'x. 692, 695 (3d Cir.2009), "[w]ith respect to the PCRA court's application of federal law, Strickland mandates deference to tactical decisions made by trial attorneys and [the habeas statute] mandates deference to state court decisions interpreting Strickland." It was reasonable in this case for the state courts to conclude that Strickland affords counsel discretion to make judgments as to what witnesses to call, what objections to make, what evidence to impeach and what evidence may be used to a client's advantage if not impeached. The state courts found that defense counsel articulated a reasonably sound basis for his failing to object to the testimony of Dr. Mihalakis, for not cross-examining Dr. Mihalakis on these issues, and for failing to call defense expert witnesses to rebut the testimony of Dr. Mihalakis, and these findings are not unreasonable in light of the facts. See Henderson v. DiGuglielmo, 138 F. App'x. 463, 470 (3d Cir.2005) ("Counsel's decision not to introduce testimony potentially in conflict with the central defense strategy is not unreasonable.").
Indeed, the state court followed the relevant Pennsylvania authority for the proposition that trial counsel need not introduce expert testimony on his client's behalf if he is able effectively to cross-examine prosecution witnesses and elicit helpful testimony. See Commonwealth v. Williams, 537 Pa. 1, 640 A.2d 1251, 1265 (1994).
Given the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689, Petitioner has failed to show that trial counsel's failure to object to the expert witness' testimony and engage in adequate cross-examination fell well below an objective standard of reasonableness. Because Petitioner has not satisfied the first prong of the Strickland inquiry, this claim is without merit. Additionally, even if trial counsel's actions were deemed unreasonable, Petitioner has not satisfied the second prong of Strickland "that there is a reasonable probability but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Here, given the overwhelming evidence of Petitioner's guilt at trial, this Court is not persuaded that, but for trial counsel's alleged dereliction in failing to call an expert at trial, the jury's verdict would have been different. Thus, Marinelli fails to establish the prejudice where he cannot prove that a different outcome would likely have resulted, or that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.
Finally, Petitioner claims that the Supreme Court's resolution of trial counsel's effectiveness in cross-examining Dr. Mihalakis about the gun shot residue on the victim's hand, and whether the victim's eyes were open, both of which were material to the existence of the torture aggravating circumstance, was unreasonable.
During the guilt phase of trial, Rosini elicited the following cross-examination testimony from Dr. Mihalakis:
Q: So you testified it is your opinion that the bruises were roughly, at a minimum, thirty minutes old and up to two hours old. Could it have been somewhat less, somewhat more?(Doc. 23-3, App. B, Trial N.T., 5/12/95 at 199-201).
A: I - - I'm not so sure if I'm making myself clear. When I said half an hour, what I'm trying to say is blunt impacts of this magnitude the earliest I would expect to see black and blue marks on the skin would be a half hour. But it may be prolonged into one, two, maybe even three hours. I - - I have no way of knowing because I don't know
what the propensity is of this individual to bleed somewhat and this type of thing. I don't know how rapidly he went into shock and - -
Q: Yeah, I can understand that, doctor. What I'm saying is that the death could have come as soon as a half hour after the injury in your opinion?
A: It - - it could conceivably be, yes, that's correct.
Q: Is there any way from your examination that you could tell whether the victim was conscious for that half hour? In other words, it is possible that the victim, if he had received one of the head blows or something like that initially, could have been unconscious for that half hour period?
A: I - - the answer to that, counselor, is yes. I have an opinion as to whether or not he was conscious and aware of what was happening.
Q: And what is that opinion?
A: I believe that he was indeed conscious and aware that was happening because, (a), as Mr. Sacavage brought out, we have the gunpowder residue from the hand which would indicate that the hand was raised. And in order to raise a hand in response to something one has to be aware that something is about to happen.
* * *
Q: Is there any way to know if he was unconscious for a period of time before that? In other words, isn't is possible that he was unconscious and if somebody tried to smother him or something this would have caused a reaction?
A: Yes, I- - I - - I believe I can answer that, sir. I don't believe he was unconscious. The only reason why I say that is I have a fairly broad experience with about thirty or so of forensic-rather medical practice, and, you know, two injuries to the head are not necessarily equivalent
to knocking somebody out, (a), because - - and there's a reason for this. And that has to do with the brains [sic] capacity to compensate.
The Pennsylvania Supreme Court found that through this line of questioning, Rosini attempted to establish the possibility that Dumchock was not conscious at the time he was shot through the eye, which militated against the aggravating circumstance of torture.
Rosini testified at the PCRA hearing that his cross-examination of Dr. Mihalakis was designed to elicit a response that Dumchock could have been dead when he was shot, providing an alternate reason why Dumchock's eyes were open. (Doc. 42-29, Ex. I, Part5, PCRA N.T., 1/24/00-1/27/00, at 233-235). A thorough review of the trial transcript reveals that counsel's cross-examination of this witness was within applicable standards of competency. This court is instructed to refrain from second guessing "counsel's discretionary decisions that are 'well within the range of professionally reasonable judgments.'" United States v. Gordon, 335 Fed. Appx. 236, 239 (3d Cir.2009), quoting Strickland v. Washington, 466 U.S. 668, 699, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Claim VIII
Petitioner's convictions and death sentence should be vacated because he was denied his Due Process and Sixth Amendment rights to an impartial jury.
In his petition, Marinelli claims that his right to an impartial jury was violated by (1) inflammatory pretrial publicity; (2) the seating of a juror who had a client-attorney relationship with the prosecutor, without adequate voir dire about that relationship; and (3) the seating of jurors who could not give full consideration and effect to mitigating evidence. (Doc. 18, Memorandum of Law at 81). These claims will be addressed seriatim below.
1. Inflammatory pretrial publicity.
Petitioner states that before trial, through counsel, he filed a Motion for Change of Venue/Venire, in his Omnibus Pretrial Motion, dated November 2, 1994, and Supplemental Omnibus Pretrial Motion, dated April 21, 1995, arguing that Northumberland County, which encompasses a population of about 90,000, was saturated with pre-trial publicity about this case. (Doc. Amended Petition at \ 5).
Specifically, Petitioner claims that there were three newspapers of general circulation in the County, and that these newspapers, as well as local and regional television, publicized the case starting on the day of the offense (April 1994) and continuing until the time of trial (May 1995). Id. at ¶ 6). At a February 21, 1995 hearing, trial counsel introduced at least 69 articles about the case, dated between April 28 and December 2, 1994. Id, citing NT 2/21/95 at 12-18. Petitioner argues that the February 21, 1995 hearing and subsequent pre-trial proceedings - including Petitioner's late-March 1995 request for new counsel, the early April 1995 replacement of Kirchoff's counsel, Mark Marinelli's April 20, 1995 guilty plea, and the trial court's April 25, 1995 denial of pre-trial motions - each generated further publicity. Id. at ¶ 6. Most of the coverage was front page headline news. Id.
Petitioner alleges that this substantial pre-trial publicity was sensational, inflammatory and slanted toward conviction. Id. at ¶ 7. In particular, Petitioner described the pre-trial publicity as follows:
It focused on Petitioner, identifying him as a "Skinhead," "Skinhead Boss" and leader of a "hate group." It referred to statements and confessions made by Petitioner, Kirchoff and Mark Marinelli. It referred to numerous unrelated crimes for which Petitioner and the co-defendants were charged or suspected. It described threats Petitioner purportedly made to Mark Marinelli. It contained statements of Petitioner's guilt by law enforcement officials. It reported that the law enforcement personnel assigned to investigate this case were given promotions and commendations even before trial began. It highlighted the grief of the decedent's family and friends. It reported that the decedent's family members were calling for the death penalty. It described large, angry crowds outside the courtroom for pre-trial proceedings, calling for death. As the trial judge stated after trial, this offense "greatly affected the community." NT 8/11/95 at 6. That effect is reflected in the pre-trial publicity.Id. at ¶ 7. Petitioner claims that as a result of the publicity, large, angry crowds calling for death gathered outside the courtroom for pre-trial and trial proceedings. (Doc. 18-2, Memorandum of Law at 82). He states that several selected jurors admitted to reading or hearing about the case. E. g. , NT-JS at 14-15 (Juror Radel read about case two weeks before); id. at 90-1 (Juror Miller heard about case from newspaper and gossip in the courtroom); id. at 416 (Juror Iwanski read about case); id. at 735 (Juror Barton read about case); id. at 813 (Juror Strohecker read about case). The trial court denied the motion for change of venue/venire, and the Pennsylvania Supreme Court affirmed on direct appeal. (See Doc. 27-4, App K, Marinelli-1 at 13-15). Petitioner believes that, under these circumstances, the state court's failure to allow a change of venue denied Petitioner his Sixth Amendment and due process right to an impartial jury.
The Pennsylvania Supreme Court addressed Marinelli's challenge to the denial of his motion for change of venue on direct appeal. The Court stated:
Next, appellant contends that it was error for the trial court to deny appellant's motions for a change of venue/venire made both prior to and after Mark's guilty plea. Appellant claims that inherently prejudicial pretrial publicity occurred in the three newspapers circulated in Northumberland County and through coverage on local and regional television news following appellant's arrest in May of 1994 and continued throughout the summer and autumn of 1994. Appellant asserts that in this pre-trial publicity, he and his co-(See Doc. 27-4, App K, Marinelli-1 at 13-15).
defendant were described as "skinheads"; other unrelated crimes with which appellant and his co-defendants were charged were discussed; confessions and admissions by appellant and his codefendants relating to the Dumchock killing were discussed; and statements by law enforcement officials regarding appellant's guilt were discussed. He further asserts that similar publicity began in April of 1995, after Mark pled guilty to second degree murder, prompting appellant's second motion for change of venue/venire, and continued until a few weeks before trial commenced on May 8, 1995. Appellant urges that this pre-trial publicity resulted in an inability to select a fair and impartial jury in Northumberland County.
The trial court's decision on appellant's motions for change of venue/venire rests within the sound discretion of the trial judge, whose ruling thereon will not be disturbed on appeal absent an abuse of that discretion. Commonwealth v. Paolello, 542 Pa. 47, 665 A.2d 439, 450(1995).
In reviewing the trial court's decision, our inquiry must focus upon whether any juror formed a fixed opinion of the defendant's guilt or innocence as a result of the pretrial publicity. Pre-trial publicity will be deemed inherently prejudicial where the publicity is sensational, inflammatory, slanted towards conviction rather than factual and objective; revealed that the accused had a criminal record; referred to confessions, admissions or re-enactments of the crime by the accused; or derived from reports from the police and prosecuting officers. However, even if one of these elements exists, a change of venue will not be required where there has been sufficient time between publication and trial for the prejudice to dissipate.Paolello, 542 Pa . at 68, 665 A.2d at 450 (quoting Commonwealth v. Gorbv, 527 Pa. 98, 108, 588 A.2d 902, 906 (1991) (citations omitted)).
We pointed out in Paolello that a change of venue becomes necessary when a fair and impartial jury cannot be selected. The trial court in the instant matter took measures to ensure that the jury panel consisted of jurors who were fair and impartial and had no "fixed opinion". Individual voir dire was conducted, and jurors who had recently read a prejudicial account of the crime were stricken for cause. The trial court granted appellant great leeway in questioning prospective jurors, and as each juror was selected, he or she was immediately sequestered. All of the jurors selected indicated that they had not formed an opinion and could apply the law as given in the court's instructions. We accordingly find the trial court did not err in denying appellant's request for change of venue. See Commonwealth v. Tedford, 523 Pa. 305, 567 A.2d 610 (1989).
The due process clause of the Fourteenth Amendment guarantees a criminal defendant the right to "a trial by an impartial jury free from outside influences." Sheppard v. Maxwell, 384 U.S. 333, 362 (1966); see also Irvin v. Dowd, 366 U.S. 717, 722 (1961); Rideau v. Louisiana, 373 U.S. 723 (1963); Estes v. Texas, 381 U.S. 532 (1965); Murphy v. Florida, 421 U.S. 794 (1975); Patton v. Yount, 467 U.S. 1025 (1984). As these cases hold, when prejudicial pretrial publicity wholly undermines the impartiality of the jury, the trial court should take steps to assure a fair trial granting a change of venue or venire. Sheppard, 384 U.S. at 363; Rideau, 373 U.S. at 723.
In some cases, adverse pretrial publicity is so extreme that the court will presume prejudice to the defendant. Irvin, 366 U.S. at 723; Patton, 467 U.S. at 1031. "Where media or other community reaction to a crime or a defendant engenders an atmosphere so hostile and pervasive as to preclude a rational trial process, a court reviewing for constitutional error will presume prejudice to the defendant without reference to an examination of the attitudes of those who served as the defendant's jurors." Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir.1992), overruled on other grounds. Brecht v. Abrahamson, 507 U.S. 619 (1993); see also Sheppard, 384 U.S. at 333; Rideau, 373 U.S. at 723. Such cases, however, are "exceedingly rare." Rock, 959 F.2d at 1253; Flamer v. Delaware, 68 F.3d 736, 754 (3d Cir.1995). In fact, for a court to presume prejudice, "the community and media reaction ... must have been so hostile and so pervasive as to make it apparent that even the most careful voir dire process would be unable to assure an impartial jury." Rock, 959 F.2d at 1252.
In the absence of facts that demonstrate a presumption of prejudice, a petitioner must prove actual prejudice, that is, that those who served on his jury could not reach an impartial verdict based solely on the evidence presented at trial. Patton, 467 U.S. at 1035(citing Irvin, 366 U.S. at 723); Rock, 959 F.2d at 1253.
It is not required ... that jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed someIrvin, 366 U.S. at 722-23. To determine whether actual prejudice exists, the court should look to the totality of the circumstances, including the voir dire of the jury. Murphy, 421 U.S. at 799-801.
impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
The Pennsylvania Supreme Court's decision denying Claim VIII was neither "contrary to" nor "an unreasonable application of the above-cited law. 28 U.S.C. § 2254(d). Marinelli appears to take issue with its decision because he argues that the local newspaper coverage of his trial was so pervasive and inflammatory that prejudiced should have been presumed. He has presented no evidence to support this contention. The only specific support that he provides are his conclusory allegations of prejudicial pretrial publicity set forth in his petition. These summarizations fall far short of establishing that there was a "trial atmosphere... utterly corrupted by press coverage," Murphy, 421 U.S. at 799, that the United States Supreme Court has required before attaching a presumption of prejudice. Therefore, Marinelli has failed to show that his was one of those "exceedingly rare" cases, Rock, 959 F.2d at 1252, where "the community and media reaction ... [was] so hostile and so pervasive as to make it apparent that even the most careful voir dire process would be unable to assure an impartial jury." Id.
In rejecting this claim, the Pennsylvania Supreme Court applied the correct rule of law from United States Supreme Court precedent. It relied on Commonwealth v. Paolello, 542 Pa. 47, 665 A.2d 439, 450 (1995), a state case which adopted the holdings in Commonwealth v. Bachert, 499 Pa. 398, 453 A.2d 931 (1982), Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985), and Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978), state cases which all properly recognized Irvin, Rideau, Sheppard, and Murphy as setting forth the guiding principles for claims concerning prejudicial pretrial publicity.
Marinelli does not appear to be contending that he can demonstrate "actual prejudice." Such a contention would be denied. To show the existence of actual prejudice, Marinelli must satisfy two basic prerequisites. First, he must show that one or more jurors who decided the case entertained an opinion, before hearing the evidence adduced at the sentencing hearing, that the defendant should be sentenced to death. "Unless he shows the actual existence of such an opinion in the mind of the juror as will revise the presumption of partiality, the juror need not necessarily be set aside." See Irvin, 366 U.S. at 723. Second, he must show that these jurors could not have laid aside preconceived opinions and impressions and rendered a decision "based on the evidence presented in court." Id. These prerequisites are not present.
Moreover, a review of the jury voir dire also confirms the state court's conclusion that a jury selected in Northumberland County was capable of impartially determining Marinelli's guilt or innocence. It appears that out of 115 prospective jurors, only fifteen of the prospective jurors questioned were dismissed for cause because they had a fixed opinion about punishment as a result of the media coverage. (Doc. 42-4 - 42-22, Ex. D, Jury Selection N.T., 5/8/95, 5/9/955/12/95). Some of the prospective jurors indicated that they had not read, or had little memory of, the media reporting of the case. Id- Many others indicated that although they had read about the murder in the papers at the time of the incident they had not formed a fixed opinion about the trial, and could be impartial. Id. As a result, Marinelli is not entitled to habeas relief on this claim.
2. Juror Clara Iwanski.
Marinelli claims that his right to an impartial jury was also violated when Juror Iwanski was seated without adequate voir dire regarding her relationship with the prosecutor. (Doc. 9, Amended Petition at ¶ 22). Specifically, Petitioner claims that during the voir dire of Iwanski, one of the trial prosecutors stated that Iwanski "is a client of mine and I recently represented her on a matter"; Iwanski said the "matter" arose when she "slipped and fell and broke a bone." Id. Upon objection from the prosecutor, the trial court precluded the defense from inquiring into the relationship between Iwanski and the prosecutor, because "[i]t wasn't a criminal matter." Id. Petitioner alleges that counsel should have been allowed further inquiry.
Petitioner further claims that he was also denied his right to effective assistance of counsel, at trial and on direct appeal, with respect to this juror. (Doc. 18-2, Memorandum of Law at 40). Plaintiff argues that when the trial court improperly restricted counsel's questioning of Iwanski, a reasonable capital defense lawyer would have challenged the restriction in the trial court and on direct appeal. Id. Petitioner concludes that confidence in the result is undermined, showing that Petitioner was prejudiced by counsel's failures to object at trial and/or on appeal. Id.
Petitioner further contends that he is also entitled to relief on ineffective assistance of counsel grounds because counsel should have moved to excuse this juror. Id. He states that even with the trial court's unconstitutional limitations on questioning, the juror said enough to demonstrate to a reasonable lawyer that she should not have sat on this jury. Id. Thus, he concludes that the failure of counsel to challenge her for cause, and to use a peremptory strike if a cause challenge was disallowed, also constituted ineffective assistance. Id.
The Pennsylvania Supreme Court addressed this issue on appeal from the denial of Marinelli's PCRA petition. (See Doc. 27-11, App W, Marinelli-3 at 18-19). The Court rejected the claim, finding the following;
Appellant next argues that he is entitled to a new trial because a juror, Clara Iwanski (Iwanski) was a former client of the Assistant District Attorney (ADA) who represented the Commonwealth in the case sub judice and "consequently was not fair and impartial." (Brief of Appellant at 25). Appellant further asserts that he was denied his right to an impartial jury because the trial court "precluded [his counsel] from inquiring further into the relationship." (Id.).
After reviewing the record of voir dire, the PCRA court deemed the instant claim to be without merit, reasoning as follows:
The [trial c]ourt, both defense counsels ... and the prosecution adequately questioned Juror Iwanski. The [c]ourt specifically asked Juror Iwanski if the fact that [the ADA] had handled a civil matter for her would influence her in any way, to which she answered "I would say not". (N.T., 5/11/95, at 418). Juror Iwanski was also repeatedly asked by the court and defense counsels if she could render a verdict based only upon evidence presented at trial. (N.T., 5/11/95, at 416-39). Juror Iwanski repeatedly answered questions on her ability to be fair, impartial and base her decision only upon evidence heard at trial, always affirming her ability to act in accordance with the duties of a juror. (Id.)(PCRA ct. Op. at 7 (citations modified)).
Our own review of the voir dire record finds ample support for the findings of the PCRA court. Iwanski stated that the ADA's representation of her was brief, that he no longer represented her, and that she did not know him socially. (N.T., 5/11/95, at 418, 424). Moreover, Appellant fails to provide any corroboration of his bald allegation that Iwanski did not serve fairly and impartially, nor does he cite any authority pursuant to which we must presume partiality based on such a brief professional relationship. Accordingly, the instant claim lacks arguable merit, and counsel for Appellant cannot
be found ineffective for failing to raise it. [Commonwealth v.] Hall, 701 A.2d at 203.
Id.
Under the Sixth and Fourteenth Amendments, a defendant may not be deprived of any liberty without due process of law and in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. See Irvin v. Dowd, 366 U.S. 717, 722 (1961) ("[T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors."). The bias of a juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as a matter of law. United States v. Wood, 299 U.S. 123, 133 (1936).
The principal way in which this right to trial by "indifferent" jurors is secured is through the system of challenges exercised during voir dire. A court must excuse a prospective juror if actual bias is discovered during voir dire. Accord Morgan v. Illinois, 504 U.S. 719, 729-730 (1992) ("Voir dire plays a critical function in assuring the criminal defendant that his [constitutional] right to an impartial jury will be honored. Without an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled.") (internal quotations and citations omitted). Bias can be revealed by a juror's express admission of that fact, but, more frequently, the reality of biased attitudes must be revealed by circumstantial evidence. Id. The Constitution does not require a new trial every time a juror has been placed in a potentially compromising situation, however, because it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Smith v. Phillips, 455 U.S. 209, 217 (1982).
The question of bias is one of fact best determined by the trial court's own determinations as to impartiality, credibility and demeanor. See Patton, 467 U.S. at 1036; Rosales-Lopez v. U.S., 451 U.S. 182, 188(1981). Under AEDPA, such factual determinations are "presumed to be correct," 28 U.S.C. § 2254(e)(1), and a petitioner, like Marinelli, bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. Accordingly, the reviewing court should not easily second-guess the conclusion of the trial court who heard and observed the voir dire. See Rosales-Lopez, 451 U.S. at 188. Therefore, the question that the court must answer is whether there is fair support in the record for the state court's conclusion that juror Iwanski would be impartial.
Based on the totality of juror Iwanski's responses, this Court concludes that there is simply not the kind of clear and convincing evidence of bias that is needed to rebut § 2254(e)(l)'s presumption. Accordingly, under § 2254(e)(l)'s presumption of correctness, the trial court's decision to empanel Iwanski was correct and Marinelli's lawyer would have had no basis to appeal this claim. As such, the Supreme Court's affirmance of the trial judge's determination that Iwanski would be a fair and impartial juror, was not an unreasonable determination of the facts. Consequently, Petitioner is not entitled to habeas corpus relief as to this claim.
Because Marinelli's underlying claim lacks merit, he "cannot successfully argue that counsel's failure to object at trial, or raise the claim on direct appeal denied [him] [his] constitutional right of representation." United States v. Mannino, 212 F.3d 835, 840 (3d Cir.2000). Success or failure on the Strickland claim, in other words, is linked with success or failure on Marinelli's underlying claim.
3. Mitigating Evidence
Petitioner claims that his right to an impartial capital sentencing jury was violated when several jurors, during jury selection, were required to agree that they would not allow sympathy for Petitioner to enter into their sentencing decision and, in particular, would not allow Petitioner's youthful age (21 years) to mitigate at all. (Doc. 9, Amended petition at ¶¶ 10-21). He further alleges that, in addition to the 159 general prohibition on even evidence-based sympathy for Petitioner, jurors were prevented, or at least substantially impaired, from giving any consideration or effect to the specific mitigating circumstance that Petitioner was only 21 years old at the time of the offense. Id
Because this claim is subsumed in Petitioner's Claim XI, which alleges that Petitioner's death sentence should be vacated because the jury failed to give effect to mitigating evidence, it will be addressed, infra, under the Court's analysis of Claim XI. Claim IX
Petitioner's convictions and death sentence should be vacated because his waiver of his right to testify was invalid.
Petitioner states that he "did not knowingly, voluntarily and intelligently waive his right to testify because his decision to not testify was based on material misinformation - counsel, without correction from the trial court, erroneously advised Petitioner that he "quite probably" would be subject to cross-examination on the circumstances of the offense if he offered life history testimony when, actually, life history testimony would not open the door to cross-examination about the circumstances of the offense." (Doc. 9, Petition at ¶ 191). Petitioner further states that "in addition to being denied his due process and Eighth Amendment right to testify on his own behalf, Petitioner was denied his Sixth and Fourteenth Amendment right to effective assistance of counsel at trial and on appeal when counsel failed to properly advise Petitioner and failed to raise these issues on appeal." Id.
In Rock v. Arkansas, 483 U.S. 44 (1987), the Supreme Court explicitly confirmed that criminal defendants have a constitutional right to testify on their own behalf. Because the right to testify is a fundamental constitutional guarantee, only the defendant is empowered to waive the right. See Jones v. Barnes, 463 U.S. 745, 751 (1983) ("The accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to ... testify in his or her own behalf..."). Moreover, the defendant's waiver of his right to testify, like his waiver of other constitutional rights, should be made voluntarily and knowingly. Cf, Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938) ("waiver of right to counsel must be intelligently and competently made.").
Here, Petitioner does not argue he was denied the right to testify, but argues that counsel's advice regarding giving testimony was professionally unreasonable, when counsel misinformed him that he "quite probably" would be subject to cross-examination on the circumstances of the offense if he offered life history testimony.
The Fifth Amendment privilege against self-incrimination applies equally at the guilt and penalty phases of a capital trial. Estelle v. Smith, 451 U.S. 454 (1981). As the Supreme Court explained:
Just as the Fifth Amendment prevents a criminal defendant from being made " 'the deluded instrument of his own conviction,' "... it protects him as well from being made the "deluded instrument" of his own execution.Id. at 462-63 (citations omitted).
We can discern no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned. Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees.
Should a defendant testify at the penalty phase of the trial, he would not automatically waive the privilege in its entirety, as to all subjects. Lesko v. Lehman, 925 F.2d 1527 (3d Cir.1991). In Lesko, the defendant had "provided testimony of a biographical nature at the penalty phase of his trial." Id. at 1542. The decision concluded that the defendant:
could not claim a fifth amendment privilege against cross-examination or prosecutorial comment on matters reasonably related to his credibility or the subject matter of his testimony .... [But,] defendant's penalty phase testimony about mitigating factors that are wholly collateral to the charges against him [did not] operate [ ] as a complete waiver of the defendant's self-incrimination privilege or his rights under Griffin.Id. at 1542 (citing Griffin v. California, 380 U.S. 609 (1965)).
In addressing Petitioner's claim, the Pennsylvania Supreme Court found the following:
Appellant next argues that his counsel was ineffective for improperly advising Appellant that he would be subject to cross-examination on the circumstances of the offense if he testified about his life history at his penalty hearing. Appellant claims that he based his decision to waive his right to testify at the penalty phase of his trial upon this misinformation and that, therefore, his waiver was neither voluntarily nor knowingly given. Although this claim is properly before this Court, as it is neither waived nor previously litigated, it nonetheless fails on its merits.(See Doc. 27-11, App W, Marinelli-3 at 21-24).
In support of the instant claim, Appellant cites the following statement of trial counsel upon concluding his presentation at the penalty phase of Appellant's trial:
[Counsel for Appellant]: [C]oncerning [Appellant's right to take the stand during the sentencing phase. I have discussed it with him. I have explained to him that if he takes the stand, the District Attorney has the right of cross-examination. It was my opinion that during cross-examination the District Attorney, quite probably, would get into going over much of the evidence from the guilt phase of the trial and asking questions concerning it, and that he could ask him questions at this point concerning his guilt. I have explained to him that in my opinion no - -that the [c]ourt has already instructed the jury, and I don't know if you instruct the jury at this point or not, but we would request that no adverse inference can be taken from his failure to take the stand.
[Trial court]: That would be included in my instructions.
[Counsel for Appellant]: And, frankly, I have also expressed to him what I feel are appealable issues from the trial itself, for him to consider. And he has expressed to me that under those circumstances, that he did not want to get on the stand at this time and make any statements concerning his involvement or lack of involvement in the offense.(N.T., 5/19/95, at 920-21).
As the PCRA court noted, a defendant who testifies during the penalty phase of his capital trial is subject to all relevant cross-examination by the prosecution. See, e.g., Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846, 857 (1989) ("We reject the suggestion that cross-examination of a defendant at the penalty hearing of a capital case is improper."). Appellant argues, however, that case law makes clear that a defendant who testifies at his penalty hearing about his life history does not ever open the door to cross-examination about the circumstances of the homicide. (Brief of Appellant at 35-36). In support of this contention, Appellant cites Commonwealth v. Percell, 499 Pa. 589, 454 A.2d 542 (1982); Commonwealth v. Luther, 317 Pa. Super. 41, 463 A.2d 1073 (1983); and Lesko v. Lehman, 925 F.2d 1527 (3d Cir. 1991).
As the Commonwealth notes and the PCRA court found, these cases simply do not advance Appellant's argument in any way. Percell involved an appeal from a voluntary manslaughter conviction where, during trial, the defendant took the stand and was improperly cross-examined by the prosecution about a non- crimen falsi criminal conviction and prior criminal charges that did not result in convictions. As the Commonwealth states, "[i]n no manner does this case stand for, or even address, the asserted proposition that a defendant presenting mitigating evidence during a penalty phase cannot be subject to cross-examination about the circumstances of the crime." (Brief of Appellee at 37). At the same time, Luther involved an appeal by a defendant who had been convicted of rape and who alleged that counsel had been ineffective for failing to present
character evidence on behalf of the defendant. As the PCRA court observed, Luther has no bearing on the case at bar.
While Lesko does involve a defendant who testified during the penalty phase of his capital murder trial, Lesko actually states that when a defendant testifies about his biographical background at the penalty phase of his trial, he cannot "claim a fifth amendment privilege against cross-examination or prosecutorial comment on matters reasonably related to his credibility or the subject matter of his testimony." Lesko, 925 F.2d at 1542. The same is true in the context of the instant claim. Contrary to Appellant's position, there is no blanket rule that a prosecutor can never cross-examine a defendant about the circumstances of the offense when that defendant takes the stand at the penalty phase of his trial to offer mitigation testimony. Rather, the scope of permissible cross-examination will necessarily depend on the testimony of the defendant and what, in the discretion of the trial court, becomes relevant by virtue of that testimony.
Thus, we agree with the PCRA court that counsel was not ineffective for advising Appellant that if he took the stand at the penalty hearing the prosecutor was entitled to cross-examine him and that such cross-examination might include questions regarding the circumstances of the murder. As counsel will not be deemed ineffective for failing to raise a meritless claim, Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190, 203 (1997), Appellant is not entitled to relief on this issue.
The Pennsylvania Supreme Court's ruling that trial counsel was not ineffective for advising petitioner regarding his right to testify is not contrary to, or an unreasonable application of, clearly established federal law, nor is it an unreasonable determination of the facts in light of the evidence presented to the state courts. The Supreme Court's decision espoused the clearly established federal law which holds that a defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives. See Harrison v. United States, 392 U.S. 219, 222 (1968). In accordance federal law, Petitioner's counsel properly explained to Petitioner the risk in taking the stand, namely that the District Attorney has the right of cross-examination. While Counsel opined that the District Attorney "quite probably" could get into going over much of the evidence from the guilt phase, ultimately, it was Petitioner's decision whether or not to testify. See Jones, 463 U.S. at 751.
However, even if counsel's advice were to be considered unreasonable, the Court finds that Petitioner's claim fails the prejudice prong of Strickland. Petitioner fails to demonstrate how his testimony was reasonably probable to have resulted in a different verdict under Strickland. Petitioner's bare statement that his testimony would have convinced at least one juror to vote for life, is insufficient to obtain habeas relief. See United States v. Aikens, 358 F. Supp.2d 433, 436 (E.D. Pa.2005) (Petitioner's bare assertions that his testimony "could have convinced the jury to believe his 'side of the story,' " "would have contradicted the testimony of the cooperating witnesses," and "would have 'set the record straight,' " fail to show that, "with petitioner's testimony, there is a reasonable probability that the result of the proceedings would have been different."). See also Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir.2001) (defendant's self-serving statement that his testimony would have resulted in an acquittal fails to satisfy the Strickland prejudice prong). Accordingly, Petitioner is not entitled to relief on this claim. Claim X
Petitioner's death sentence should be vacated because trial counsel failed to reasonably investigate, develop and present mitigating evidence.
Marinelli contends that he was deprived of effective assistance of counsel during the sentencing phase of trial because counsel failed to investigate, develop, and present significant mitigating evidence about Marinelli's traumatic childhood and sad life history, mistreatment by his parents and others, head injuries, learning problems, mental problems, alcoholism, and intoxication at the time of the offense. (Doc. 18-3, Memorandum of Law at 107-117). The crux of Marinelli's claim is that trial counsel was ineffective for failing to seek out, interview, and present testimony from Marinelli's family, friends, and mental health experts, prior to trial. Id.
Petitioner states that before trial, counsel had a report from psychologist John Kelsey, Ph.D., who saw Petitioner to determine if Petitioner was competent to stand trial and if there was a guilt-phase mental state defense. Id. at 111. He states that "Dr. Kelsey's report is replete with red flags showing the need for investigation of mitigating evidence for the penalty phase, including Petitioner's traumatic life history and his history of substance abuse and intoxication." Id.
Petitioner further alleges that, after the guilty verdict, trial counsel spoke briefly to Petitioner's brother, Joseph Marinelli, III ("Joseph"), just before Joseph testified at capital sentencing; counsel then elicited limited evidence from Joseph at the sentencing hearing, comprising just five transcript pages of testimony. Id. at 110. Petitioner argues, however, that such a brief, post-guilty verdict conversation with one family member was far too little and far too late to satisfy the Sixth Amendment. Id.
"The standard by which we judge deficient performance is an objective standard of reasonableness, viewed to the extent possible from the attorney's perspective at the time, without 'the distorting effects of hindsight.' " Strickland, 466 U.S. at 688-90. In addressing the reasonableness of an attorney's representation, a reviewing court must be deferential in its scrutiny "because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell v. Cone, 535 U.S. 685 (2002) (citing Strickland, 466 U.S. at 689). Furthermore, a party claiming ineffective assistance must identify specific errors by counsel, and the court must indulge a strong presumption that counsel's conduct was reasonable. Strickland, 466 U.S. at 690.
In Strickland, when the Supreme Court pronounced this standard, it expressly declined to dictate detailed rules for deciding reasonableness: "More specific guidelines are not appropriate." Id. However, Strickland gave us several guides to decision: we must assess reasonableness on all the facts of the particular case, we must view the facts as they existed at the time of counsel's conduct, and we must evaluate counsel's performance with a view to whether counsel functioned to assure adversarial testing of the state's case. Id. at 690. Moreover, the reasonableness of counsel's actions may depend on his client's wishes and statements. Id. at 691; see United States v. Gray, 878 F.2d 702, 710 (3d Cir.1989) ("counsel's failure to pursue certain investigations cannot be later challenged as unreasonable when the defendant has given counsel reason to believe that a line of investigation should not be pursued").
It happens that Strickland also involved an ineffectiveness claim relating to a duty to investigate. The Supreme Court did not offer any special standards concerning the duty to investigate, but it did say that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. A decision not to investigate must be directly assessed for "reasonableness in all the circumstances," and the habeas court must apply "a heavy measure of deference to counsel's judgments." Id. The Court's observations in Strickland speak to the issues raised in this case:
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.
Id.
Satisfying Strickland's investigation mandate, therefore, ultimately turns on counsel's adherence to the professional standards for investigation and preparation of a mitigation case at the time of trial. In defining what constitutes a complete investigation in this matter, therefore, we look to the prevailing professional norms as they existed in 1995.
In 1995, the ABA Standard for Criminal Justice ("Standard") stated:
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of1 ABA Standards for Criminal Justice: Prosecution Function and Defense Function, 4-4.1 (2d ed.1982 Sup.); see also Strickland, 466 U.S. at 688-89 (discussing the use of ABA standards as guides for determining "prevailing norms of practice"); Rompilla v. Horn, 355 F.3d 233 (3d Cir. 2004) 259 n. 14 (referring to the ABA standards as "important guides" although cautioning against viewing them as "a codification of the requirements of the Sixth Amendment"). The Standard, coupled with Strickland's explicit language requiring a thorough investigation into facts relevant to both guilt and sentencing, clearly show that a separate penalty phase investigation was the very foundation of reasonable representation in 1995. See Strickland, 466 U.S. at 690-91.
conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty.
The PCRA Court and Pennsylvania Supreme Court both determined that Marinelli's counsel was not deficient in connection with the presentation of mitigating evidence. The Pennsylvania Supreme Court determined the following:
Marinelli finally contends that he is entitled to a new penalty phase hearing because trial counsel, Rosini, was ineffective for failing to investigate, develop, and present significant mitigating evidence: (1) that Marinelli was abused and neglected as a child; and (2) that Marinelli suffered significant mental impairments. Marinelli(Doc. 27-9, App. R, Marinelli-2 at 25-31).
specifically alleges that Rosini should have looked into: (1) the alcoholism of his parents and the resultant abuse his father inflicted upon him and his siblings; (2) his mother's frequent lengthy periods of abandonment of the family; (3) the separation of his parents; (4) the mental illness, violence, and homicidal tendencies of his stepmother; (5) her subsequent suicide; (6) the debilitating psychological effects of all of these events on Marinelli; and (7) his pattern of substance abuse.
When questioned by PCRA counsel for Marinelli at the PCRA hearing, Rosini testified as follows:
Q: Can you tell me, do you recall, what, if any, action you took to try and prepare a penalty phase? And I'm talking pretrial now. Do you remember efforts you undertook to prepare for a penalty phase should you have to reach that?
A: The only thing we did was discuss it with Kevin, who basically instructed us he did not want his family or anything involved.
* * *
Q: When Mr. Marinelli told you, don't call my family, did you undertake to try to explain to him the mitigating factors under the Pennsylvania Capital Sentencing Statute? Did you try to go through those?
A: Verbatim, probably not. In substance, yes.
Q: When Mr. Marinelli told you that don't-stay away from my family, did you attempt to do anything else with
respect to the family members?
* * *
A: We had talked to, at the very least, the brother; and ultimately did get him on the witness stand.
* * *
Q: Just so I-so that it is clear, was Mr. Marinelli drawing a line with the family, and he didn't want those people called, but he would have allowed others, other than family, or could you explain that?
A: He really wasn't cooperative in giving us any information concerning a penalty phase.
Q: I'm sorry. I don't know-Mr. Marinelli was not cooperative in giving you information?
A: Correct. He was not really-I don't know how to describe this. It was sort of, it was like he sort of didn't really want to think about that phase or defend that phase or whatever.
Q: Do you recall whether or not, Mr. Rosini, that-I need to ask you some questions about the conversations that you had with Mr. Marinelli vis-avis, the penalty phase. Do you know whether or not you turned to Mr. Marinelli and said, Kevin, if we don't put on any evidence in the penalty phase, based on Pennsylvania law-are you familiar with the decision of Bleistone [sic] versus Commonwealth?
A: The specific decision, no, I'm familiar with what the law was at that time.
Q: Would you agree with me that the law, at the time that Mr. Marinelli's case in 1995, was that if the Commonwealth establishes an aggravating factor and the defense fails to establish mitigating factors, that the actual sentencing instruction says the sentence shall be death?
A: Yes.
Q: Did you explain that to Mr. Marinelli?
A: I did explain the situation with aggravating and mitigating circumstances, yes.
Q: Did you explain to him that the Commonwealth, as [the prosecutor] argued to the jury in the penalty phase of the Commonwealth's presentation of guilt and innocence, had established a homicide in the course of a felony that under Pennsylvania law, that was an aggravating factor that he had already established that based on the guilt-innocence conviction?
A: Did I say it in those words, or did I say it after the verdict? I'm not sure. I know that we had discussed the aggravating circumstances which were filed by the District Attorney's Office including the felony issue, the weapons issue, the torture issue, etcetera, at various times.
* * *
Q: What efforts did defense make with respect to trying to understand Mr. Marinelli's background and history?
A: What I can tell you is we talked to a number of people and the impression that I got, from those various people and from the information we had, was that through his early years and up through high school, etcetera, that he was an extremely intelligent young man. He was, in fact, well behaved, well liked and involved with school, involved with everything. He went to the military. And what ever happened, no one knew. But from that point on, got involved in the socialist party, etcetera, and was a
completely different [person] than he had been earlier in his life, and the person he had been.(PCRA N.T., 1/24/00-1/27/00, at 204-209, 218).
This testimony clearly demonstrates that Rosini attempted to develop background information on Marinelli in the hopes of presenting that information to the jury should a penalty phase have become necessary; however, Marinelli thwarted these efforts by being uncooperative in response to counsel's questions and forbidding Rosini from discussing Marinelli's background with Marinelli's mother. We have held that a defendant "is not entitled to a new trial where trial counsel acceded to [the defendant's] wishes and refrained from presenting evidence of mitigating factors when it was [the defendant] himself who prevented the presentation of any mitigating factors." Commonwealth v. Blystone, 555 Pa. 565, 725 A.2d 1197, 1205-1206 (1999); accord Commonwealth v. Cross, 535 Pa. 38, 634 A.2d 173, 176 (1993), cert, denied, 513 U.S. 833, 115 S.Ct. 109, 130 L.Ed.2d 56 (1994) (counsel cannot override what the client considers to be in his best interest). We reasoned that if "this Court were to allow an ineffectiveness claim to succeed after appellant made a knowing, intelligent and voluntary waiver of his right to present mitigating evidence, it would have the unwanted and absurd effect of allowing appellant and other defendants to build automatic ineffective assistance claims into their case in order to guarantee themselves a new sentencing hearing should they receive the death penalty." Blystone, 725 A.2d at 1206.
Moreover, Rosini testified at the PCRA hearing that his impression of other witnesses who knew Marinelli as a child contradicted the testimony of Marinelli and his family presented at the PCRA hearing that he suffered marked childhood trauma. In preparation for trial, Rosini had learned some limited information about Marinelli's upbringing. As indicated above, Rosini testified that, according to the persons to whom he spoke, through the conclusion of high school, Marinelli was an intelligent, well behaved, well liked young man who was involved with school. On cross-examination before the PCRA
court, the Commonwealth asked Rosini whether, "as part of your trial strategy, did you believe that attempts to bring in any evidence relative to a poor childhood could have a negative effect on a jury?" (PCRA N.T., 1/24/00-1/27/00, at 269). Rosini responded "I didn't think it was something that would be accepted as a mitigating factor in this case." Id. Thus, Marinelli has failed to meet his burden of proving that Rosini lacked a reasonable strategic basis for failing to present evidence of his allegedly tumultuous upbringing.
Marinelli's contention that Rosini was ineffective for failing to present evidence of Marinelli's psychological impairments likewise fails. Rosini retained the services of a psychologist, one Dr. Kelsey. After examining Marinelli, Dr. Kelsey concluded that Marinelli could distinguish right from wrong, did not suffer from any mental illness, and was able to control his actions at the time of the murder. (PCRA N.T., 1/24/00-1/27/00, at 258-263). The doctor further concluded that Marinelli had engaged in some degree of preparation and planning in anticipation of the murder. Id. at 261. Based on the information gleaned from his interview with Marinelli, Dr. Kelsey informed Rosini that Marinelli would be able to assist in the preparation of his defense. Id. at 260. Thus, pursuant to the report of Dr. Kelsey, Marinelli did not suffer from any psychological impairments. Rosini reasonably relied on Dr. Kelsey's report and, accordingly, did not present a mental health mitigating circumstance. Counsel will not be deemed ineffective for failing to raise a meritless claim. Tilley, 566 Pa. 312, 780 A.2d 649.
Marinelli also avers that trial counsel was ineffective for failing to present evidence of his substance abuse as a mitigating circumstance during the penalty phase. Marinelli contends that Rosini should have presented evidence of Marinelli's intoxication at the time of the murder as a mitigating circumstance pursuant to 42 Pa.C.S. § 9711(e)(3) (that Marinelli could not appreciate the criminality of his conduct or conform his conduct to the requirements of law at the time) and Marinelli's general substance abuse problem as a mitigating circumstance pursuant to 42 Pa.C.S. § 9711(e)(8) (the catchall provision). Marinelli points to his admission to Dr. Kelsey that he had
been drinking a case a day of whiskey or beer for an extended period of time. However, in Dr. Kelsey's report to Rosini, Dr. Kelsey indicated there was evidence only of mild intoxication. (PCRA N.T., 1/24/00-1/27/00, at 259-260).
The standard for proof of a voluntary intoxication as a mitigating circumstance pursuant to 42 Pa.C.S. § 9711(e)(3) is as follows: "[f]or a charge to have been given on intoxication, the evidence would have to show that the Appellant was overwhelmed or overpowered by alcohol to the point of losing his faculties so as to be incapable of forming a specific intent to kill." Commonwealth v. Carpenter, 533 Pa. 40, 617 A.2d 1263, 1268 (1992) (standard applicable to claims of voluntary intoxication in both the guilt phase and the penalty phase). On direct appeal, we held that "[although there was testimony of alcohol consumption prior to the killing in this matter, there was no evidence that [Marinelli] was overwhelmed or overpowered by alcohol. This evidence, thus, did not meet the requisite standard for the court to instruct the jury as to the effect of voluntary intoxication on the degree of murder." Marinelli, 690 A.2d at 221. As we have already determined that Marinelli was not overwhelmed or overpowered by alcohol at the time of the killing, the evidence was insufficient to warrant presentation to the penalty phase jury of a voluntary intoxication mitigating circumstance.
As to Marinelli's claim of a substance abuse problem, because of Marinelli's lack of cooperation and refusal to permit Rosini to interview his family members, the only information available to Rosini at the time of the penalty phase hearing was the report of Dr. Kelsey, which indicated that there was evidence of mild intoxication but also stated that Marinelli did not suffer from any psychological impairment and could exercise unhindered self-control and judgment. Thus, it reasonably appeared to Rosini that Dr. Kelsey did not believe that Marinelli suffered from a substance abuse problem; Dr. Rosini found evidence of mild intoxication. As more fully discussed above, we will not deem counsel ineffective for failing to raise a claim that the defendant prevents counsel from discovering. Blystone.
Accordingly, Marinelli has failed to meet his burden of proving that Rosini was ineffective in failing to present the above-described allegedly mitigating evidence to the penalty phase jury.
The Pennsylvania Supreme Court applied the correct legal standard when it evaluated Petitioner's claim of counsel's ineffectiveness. Therefore, its adjudication passes federal habeas review under the "contrary to" clause of § 2254(d)(1). See Williams, 529 U.S. at 406.
The only remaining question for this Court to decide is whether the Supreme Court's adjudication was an "unreasonable application of Strickland or an unreasonable determination of the facts. 28 U.S.C. § 2254(d). This Court finds that the Pennsylvania Supreme Court's conclusion that trial counsel acted reasonably and rendered effective assistance was not an unreasonable application of Strickland. The findings of the PCRA court and uncontradicted testimony at the PCRA hearing establish that trial counsel did conduct an investigation for mitigating evidence. According to his testimony, trial counsel talked to a number of people and the impression that he had from those various people, and from the information he had, was that through his early years and up through high school, Petitioner was an extremely intelligent young man, and was, in fact, well behaved, well liked and involved with school, involved with everything. Specifically, counsel testified that he talked to at least one teacher, read interviews and notes of co-counsel concerning people they talked to. (Doc. 42-18, Art. I, PCRA N.T., 1/24/00-1/27/00, at 218).
Trial counsel retained a well-qualified mental health expert to examine Marinelli, in preparation for trial. Based upon the findings in Dr. Kelsey's report, trial counsel did not present a mental health mitigating circumstance, testifying, in part, as follows:
THE WITNESS: This report basically said that he did not find any basis for a mental illness defense or inability to know right from wrong.(Doc. 42-18, Art. I, PCRA N.T., 1/24/00-1/27/00, at 258-261).
Q: The report also - - did the report also indicate that the defendant was able to assist you in his defense?
A: That was the conclusion, yes.
* * *
Q: Does it talk about the defendant's mental health at the time of the incident?
A: Well, I could read the whole thing, but to sum it up, it does not find anything irregular about the defendants' mental health. There is no report of bizarre behavior. No amnesia, no report of hallucinations, etcetera, etcetera.
Q: Does it indicate he was unable to control himself at the time?
A: It does not appear that he was not able to control himself.
Q: Does it indicate he was able to formulate plans?
A: It indicates in the doctor's opinion that there was indication of planning and preparation.
Q: In addition, relative to the criminal incident itself and this is continuing into the next paragraph, does this report indicate that the defendant was unable to control himself?
A: It does not appear to indicate that.
* * *
MS. TARGONSKI: Mr. Rosini, I'm not exactly sure where I was with my last question to you, so if I'm repeating myself, excuse me. Does this report indicate what the defendant's behavior was during the week prior to the commission of the homicide?
THE WITNESS: What his behavior was?
MS. TARGONSKI: Yes.
THE WITNESS: Yes.
Q: What does it say?
A: The last paragraph on Page 8 seems to be indicating that in the week prior to the commission of the crime, the patient reported no impairment to self control, no impairment of judgment, no impairment of behavior of any kind.
Q: Based either on a mental disorder?
A: I'm sorry?
Q: Based upon a mental disorder. Would you read that first sentence at the top of Page 9?
A: "There is no indication of impaired judgment on the basis of mental disorder during the alleged crime. No indication of - - all right, "psychopathology based impairment or behavior at the time of the alleged crime. No indication of impaired reality testing at the time of the alleged crime, No incapacity for self-care of personal or home environmental needs at the time of the alleged crime."
Q: While you were preparing for both the guilt and the penalty phase in this matter, would this have been something that you would have reviewed for that preparation?
A: Definitely.
Q: Would this have been something that you would have considered in making your trial strategy?
A: Certainly.
In view of this record, we cannot say that the Pennsylvania Supreme Court unreasonably applied Strickland in concluding that trial counsel's investigation regarding mitigating evidence relating to Marinelli's family background and mental condition did not fall below the Sixth Amendment floor.
Marinelli criticizes many aspects of trial counsel's performance at the penalty phase, but this Court sees no ground for relief under the habeas statute. Marinelli faults his trial attorney for failing to interview his mother, his sister, his brother Mark, and his aunt, all of whom testified at the PCRA hearing. Counsel testified that Marinelli "had little or no involvement with his family" and "did not want his family or anything involved", and that "the impressions I got was in several conversations with Mr. Marinelli was he did not want his mom involved in any of this in any way, shape, or form." (Doc. 42-18, Att. I, PCRA N.T., 1/24/00-1/27/00, at 204, 227, 258). Trial counsel did interview one of Marinelli's siblings, Joseph Marinelli. At least this sibling who was interviewed must have been aware of the lurid conditions in the family home that were portrayed at the PCRA hearing, but he never mentioned anything about these matters to trial counsel despite being interviewed. It was thus not constitutionally ineffective for trial counsel to fail to conclude that interviewing the remainder of Marinelli's family would have yielded important new information about the family home.
The following testimony was elicited with respect to Marinelli's siblings: MS. TARGONSKI: Mr. Rosini, would you read into the record the second full paragraph?
THE WITNESS: . . . "Mr. Marinelli indicated he has four siblings, brother Joseph, age 32, who don't talk to me on the phone. Brother, David, 29; who is in Rockview. He used to write but he doesn't now. A married sister, Debbie, with whom he reports no contact. And, Mark, who is in Camp Hill, and he is not allowed to speak to him." (Doc. 42-18, Att. I, PCRA N.T., 1/24/00-1/27/00, at 259).
Additionally, with respect to Marinelli's mother, counsel testified that he had "spoken to her on one or two occasions, briefly" and that "usually she was - - at least sounded drunk." (Doc. 42-18, Art. I, PCRA N.T., 1/24/00-1/27/00, at 216).
Moreover, when asked whether "as part of your trial strategy, did you believe that attempts to bring in any evidence relative to a poor childhood could have a negative impact on the jury", Rosini responded "I didn't think it was something that would be accepted as a mitigating factor in this case." (Doc. 42-18, Art. I, PCRA N.T., 1/24/00-1/27/00, at 216). Specifically, Rosini testified that:
A: In this particular case with the testimony that was presented on the fact that they planned the burglary, that he was beaten with a baseball bat or some other object, that they repeatedly went back, with the testimony of Mark, whether it be true or not true, that Kevin went back in and intentionally shot him; no, I did not think that the jury would accept that as a mitigating factor.Id. Thus, counsel provided a reasonable basis for not presenting evidence of Petitioner's upbringing, and Petitioner has failed to rebut such strategy.
Finally, Marinelli contends that trial counsel should have presented evidence of his substance abuse as mitigating circumstances during the penalty phase. Specifically, Petitioner contends that counsel should have presented evidence of Petitioner's intoxication at the time of the crime. However, as counsel testified, he relied on Dr. Kelsey's report which indicated "mild intoxication", (see Doc. 42- 18, Att. I, PCRA N.T., 1/24/00-1/27/00, at 260), not nearly enough to meet the necessary standard of proof of "overwhelmed or overpowered by alcohol." See 42 Pa.C.S. § 9711(e)(3). Likewise, counsel relied on his expert's evaluation, the only information available to him, that Marinelli did not suffer from any psychological impairment and could exercise unhindered self-control and judgment. (See Doc. 42-18, Att. I, PCRA N.T., 1/24/00-1/27/00, at 258-261). Thus, It was not unreasonable for trial counsel to rely on its mental health experts to detect whether there was any basis for further pursuit of mitigating evidence relating to their client's mental condition. This was not a case where counsel knew of the defendant's mental health or other problems and failed to inform or provide the experts with the information. See Caro v. Calderon, 165 F.3d 1223, 1228 (9th Cir.1999) ("A lawyer who knows of but does not inform his expert witnesses about ... essential pieces of information going to the heart of the case for mitigation does not function as 'counsel' under the Sixth Amendment.") cert. denied, sub nom, Woodford v. Caro, 527 U.S. 1049 (1999). Despite counsel's attempts to find out otherwise, Marinelli offered Attorney Rosini very limited information regarding his problems and/or childhood abuse. As noted, Marinelli's lack of cooperation and refusal to permit counsel to interview his family members, provided counsel with very limited availability of information. In view of these circumstances, it was not unreasonable for the state courts to conclude that trial counsel did not fall below the constitutionally mandated level of representation.
To this end, Petitioner's reliance on the United States Supreme Court's holding in Schriro v. Landrigan, 127 S.Ct. 1933 (2007), reaffirming the teaching of cases like Rompilla v. Beard, 545 U.S. 374 (2005), Marshall v. Cathel, 428 F.3d 452 (3d Cir. 2005), that capital counsel retains the duty of thorough investigation in cases where "the defendant refuse[s] to assist in the development of a mitigation case", is misplaced. The Court notes that all three of these cases postdate the Pennsylvania Supreme Court's decision in this case. As such, they cannot be considered in our analysis of whether the Commonwealth's adjudication of that claim involved an unreasonable application of "clearly established Federal law." See 28 U.S.C. § 2254(d)(1); Greene v. Palakovich, 606 F.3d 85, 94-95 (3d Cir.2010) (holding that the date of the "relevant state-court decision" controls for purposes of determining what constitutes "clearly established Federal law" under § 2254(d)(1)).
Moreover, although Petitioner attempted to call counsel's actions into question in his PCRA hearing, by offering testimony of witnesses who would have testified on behalf of Marinelli, had they been contacted, Marinelli failed to meet his post-conviction burden, by providing the PCRA court with the opportunity to assess Petitioner's credibility as to what he told his counsel respecting mitigation. In the absence of such evidence, the PCRA court and the Pennsylvania Supreme Court ruled on the credibility of the witnesses who did testify. Marinelli points to nothing in the testimony that undermines the state courts' credibility rulings. As reviewed above, the state courts carefully examined the trial and hearing testimony, and it is beyond the province of this Court under AEDPA to disturb their findings unless clear and convincing evidence shows they are mistaken. As such, this Court finds Petitioner's claim lacks merit. Claim XI
Petitioner's death sentence should be vacated because the jury failed to give effect to mitigating evidence.
Petitioner states that he was twenty-one years old at the time of the offense, and that because of his youth, the Commonwealth stipulated to the existence of Pennsylvania's "age" mitigating circumstance, pursuant to 42 Pa.C.S. § 9711(e)(4). (Doc. 18-3, Memorandum of Law at 141). He argues that under Pennsylvania law, a stipulation means that the agreed-upon fact is proven, and thus, the (e)(4) "age" mitigating circumstance was proven and the jury was "required to find it and weigh it." Id. Petitioner concludes, however, that the jury "failed to find, and thus failed to weigh or give any effect to this proven mitigating circumstance." Id. As a result of such, the Petitioner argues that his resulting death sentence is unconstitutional. Id.
Petitioner presented this issue on appeal, after remand, to the Pennsylvania Supreme Court as follows:
Appellant is entitled to a new sentencing hearing because his right to an impartial jury was violated when jurors were restricted from considering and giving full effect to relevant mitigating evidence, as required by the 6th, 8th, and 14th Amendments and Article I, Section 13 of the Pennsylvania Constitution.(Doc. 30-13, App. Tl, Initial Brief of Appellant (After Remand) at 11).
Although presented in a constitutional context, the Pennsylvania Supreme Court addressed this issue solely as a state court claim, as follows:
Appellant first argues that his death sentence should be vacated because the jury failed to find the mitigating circumstance of 42 Pa.C.S. § 9711(e)(4) based on "[t]he age of the defendant at the time of the crime." According to Appellant, the jury was required to find this mitigating circumstance because the Commonwealth stipulated to it during the sentencing hearing. (Brief of Appellant at 11) (citing Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069 (2001))(Doc. 27-11, App. W1, Marinelli-3 at 11-14).
We have previously rejected the notion that a defendant's youthful age at the time of the crime automatically renders the age mitigator applicable. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75, 82 (1990). Instead, it is for the jury to decide whether a particular defendant was so young or immature at the time of the crime as to justify considering his age as a mitigating factor. Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929, 939 (1990), abrogated on other grounds by Commonwealth v. Wilson, 580 Pa. 439, 861 A.2d 919 (2004).
With this distinction in mind, the PCRA court found that "[t]he Commonwealth stipulated only to the birth date of [Appellant], not to the fact that his age and/or immaturity played a role in the commission of the crime." (PCRA ct. Op. at 4). The Commonwealth asserts that the record sub judice clearly supports this finding.
Nevertheless, our review of the record leads us to conclude that the Commonwealth did indeed stipulate to this mitigating circumstance. During the sentencing hearing, the prosecutor stated the following in open court:
May it please the Court, at this time, I would like to put on the record a stipulation entered into by the Commonwealth and the defense concerning two of the items listed in the-by the Court as mitigating circumstances; Number One, that the defendant has no significant history of prior criminal convictions; and Number Two, that under the category age of the defendant, at the time of the crime, that he was born April 30th, 1972, and was 21 years old at the time of the crime.(Notes of Testimony (N.T.), 5/19/95, at 913 (emphasis added)). Later, during the Commonwealth's penalty phase closing argument, the prosecutor stated the following to the jury:
Mr. Rosini, counsel for [Appellant], has offered to you three mitigating circumstances. And the Commonwealth doesn't contest them. It's not for me and I don't have to show you that they don't exist. I agree that when this individual - when this crime was committed he was 21 years old. His birthday was April 30th. Conrad [Dumchock] died April 27th. He was three days from the age of 22 if that makes a difference.(Id. at 936-38 (emphasis added)). While we do discern a certain degree of ambiguity as to exactly what the prosecutor meant by the first of the two above-quoted remarks, we find that there is sufficient support in the record as a whole to conclude that the Commonwealth stipulated to the mitigating circumstance of 42 Pa.C.S. § 9711(e)(4). Although, taken in isolation, certain portions of the above statements suggest that the Commonwealth was stipulating merely that Appellant was twenty-one years old when he killed Dumchock (see, e.g., N.T. at 936 ("I agree that ... when this crime was committed he was 21 years old.")), the context of the statements convinces us that the Commonwealth stipulated to three mitigating circumstances, including that based on the age of the defendant at the time of the crime.
We also agree that there is no significant criminal history. And that is a mitigating factor. And Mr. Joseph Marinelli, his brother, came on as a third mitigating factor that Mr. Kevin Marinelli had a rough childhood, that he came from a broken home. . ..
* * *
I submit we have proven two aggravating circumstances beyond a reasonable doubt. And I will give them their mitigating circumstances, all three of them.
Nevertheless, Appellant cannot prevail on this claim for the simple reason that, pursuant to the law existing at the time of his sentencing,
the jury was not required to find a mitigating circumstance to which the Commonwealth had stipulated. See Commonwealth v. Copenhefer, 526 Pa. 555, 587 A.2d 1353 (1991), abrogated by Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069 (2001). Although Appellant correctly cites Commonwealth v. Rizzuto for the proposition that "where a mitigating circumstance is presented to the jury by stipulation, the jury is required by law to find that mitigating factor," Rizzuto, 777 A.2d at 1089, we did not decide Rizzuto until more than six years after Appellant's sentencing. As Rizzuto expressly overruled Copenhefer, trial counsel for Appellant may not be found ineffective for failing to predict such a change in the law. Commonwealth v. Tilley, 566 Pa. 312, 780 A.2d 649, 653 (2001); Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 582 (2002) (applying Tilley in rejecting appellant's reliance on Rizzuto in challenging his 1997 sentencing).
Appellant additionally argues that the jury was improperly impaneled as a result of voir dire questions from the prosecutor suggesting that prospective jurors should not be "influenced by 'outside influences' such as feelings of sympathy or mercy arising from mitigating evidence present in the case (in particular, Appellant's youthful age), and elicit[ing] promises from veniremembers who were selected as jurors that they would set aside such sympathy and mercy". (Brief if Appellant at 15). Although Appellant refers to additional facts from the record to support this argument as to improper paneling, he fails to distinguish it from his overall legal claim. In fact, he relies on Rizzuto throughout his discussion of his argument, and he fails to specify why his counsel was ineffective for failing to raise it previously. Consequently, Appellant's failure to apply the three prongs of the test of ineffectiveness to this argument precludes us from meaningful reviewing it as distinct from his Rizzuto claim. See Todaro, 701 A.2d at 1346.
Since the Pennsylvania Supreme Court failed to address the merits of Petitioner's Eighth Amendment claim, habeas review is de novo. See Jacobs, 395 F.3d at 100 ("AEDPA's deferential standards of review do not apply unless it is clear from the face of the state court decision that the merits of the petitioner's constitutional claims were examined in light of federal law as established by the Supreme Court of the United States" (citations and quotation marks omitted)).
Once a determination is made that a person is eligible for the death penalty, the sentencer must then consider relevant mitigating evidence, allowing for "an individualized determination on the basis of the character of the individual and the circumstances of the crime." Tuilaepa v. California, 512 U.S. 967, 972 ) (1994) (citing Zant v. Stephens, 462 U.S. 862, 878, 103 S.Ct. 2733, 2743 (1983). The Supreme Court has explained that "evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background [or to emotional and mental problems] may be less culpable than defendants who have no such excuse." Penry v. Lvnaugh, 492 U.S. 302, 319 (1989) (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841 (1987)). Therefore, the sentencer in a capital case is required to consider any mitigating information offered by a defendant, including non-statutory mitigation. See Lockett v. Ohio, 438 U.S. 586, 604 (1978) (right to individualized sentencing in capital cases violated by Ohio statute that permitted consideration of only three mitigating factors); Eddings v. Oklahoma, 455 U.S. 104, 113-15 (1982) (Lockett violated where state courts refused as a matter of law to consider mitigating evidence that did not excuse the crime). In Lockett, the Court held that under the Eighth and Fourteenth Amendments the sentencer must "not be precluded from considering, "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett, 438 U.S. at 604.
Further, the Court in Eddings, supra, stated:
We find that the limitations placed by these courts upon the mitigating evidence they would consider violated the rule in Lockett. Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.455 U.S. at 114-15. Cemphasis in the original)
The Supreme Court has held that if a death penalty scheme provides a rational criterion for eligibility and no limitation on the consideration of relevant circumstances that could mitigate against a death sentence, then "the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished." Romano v. Oklahoma, 512 U.S. 1,7 (1994) (quoting Blystone v. Pennsylvania, 494 U.S. 299, 309 (1990)). The Court has emphasized that there is no required formula for weighing mitigating evidence, and the sentencer may be given "unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty." Zant v. Stephens, 462 U.S. 862, 875 (1983); see Kansas v. Marsh, 548 U.S. 163, 175 (2006) ("our precedents confer upon defendants the right to present sentencers with information relevant to the sentencing decision and oblige sentencers to consider that information in determining the appropriate sentence. The thrust of our mitigation jurisprudence ends here."); Harris v. Alabama, 513 U.S. 504, 512 (1995) (Constitution does not require that a specific weight be given to any particular mitigating factor); Tuilaepa, 512 U.S. at 979-80.
Conversely, while the sentencer in a capital case may be afforded unbridled discretion in considering the appropriate sentence, "there is no ... constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence 'in an effort to achieve a more rational and equitable administration of the death penalty.' " Boyde v. California, 494 U.S. 370, 377 (1990) (quoting Franklin v. Lvnaugh, 487 U.S. 164, 181 (1988) (plurality opinion)); see Johnson v. Texas, 509 U.S. 350, 362 (1993). The Supreme Court has explained that" Lockett and its progeny stand only for the proposition that a State may not cut off in an absolute manner the presentation of mitigating evidence, either by statute or judicial instruction, or by limiting the inquiries to which it is relevant so severely that the evidence could never be part of the sentencing decision at all." Johnson, 509 U.S. at 361-62 (quoting McKoy v. North Carolina, 494 U.S. 433, 456 (1990) (Kennedy, J., concurring in judgment)). Thus, "[a]lthough Lockett and Eddings prevent a State from placing relevant mitigating evidence 'beyond the effective reach of the sentencer,' Graham v. Collins, [506 U.S. 461, 475 (1993) ], those cases and others in that decisional line do not bar a State from guiding the sentencer's consideration of mitigating evidence." Johnson, 509 U.S. at 362. There is only a constitutional violation if there exists a reasonable likelihood that the jurors believed themselves precluded from considering relevant mitigating evidence. See Boyde, 494 U.S. 386.
Here, the jury was certainly allowed to consider Marinelli's age as a mitigating factor. Specifically, at the penalty phase, the jury was instructed by the court as follows:
THE COURT: In this case under the sentencing code the following matters, if proven to your satisfaction by a preponderance of the evidence can be mitigating circumstances:(Doc. 42-23, App. H1, Sentencing N.T., 5/19/95 at 956-958).
First, the defendant has no significant history of prior criminal convictions.
Second, the age of the defendant at the time of the crime; and
Third, any other evidence of mitigation concerning the character and record of the defendant and the circumstances of the offense.
* * *
In deciding whether aggravating outweigh mitigating circumstances, do not simply count their number. Compare the seriousness and importance of the aggravating with the mitigating circumstances. If you all agree on either one of the two general findings then you can and must sentence the defendant to death.
When voting on the general findings, you are to regard a particular aggravating circumstance as present only if you all agree that it is present. On the other hand, each of you is free to regard a particular mitigating circumstance as present despite what other jurors believe. This is a difference between aggravating and mitigating findings. And I'll repeat it. In voting on the general findings, you are to regard a particular aggravating circumstance as present only if you all agree that it was present. On the other hand, each of you is free to regard a particular mitigating circumstance as present despite what other jurors believe. This different treatment of aggravating and mitigating circumstances is one of the law's safeguards against unjust death sentences. It gives the defendant a full benefit of any mitigating circumstances.
Accordingly, this Court finds that the trial court and the Pennsylvania Supreme Court fulfilled their constitutional obligation by allowing the jury to "consider and give effect to all mitigating evidence." Blystone, 494 U.S. at 309. See also Zettlemoyer v. Fulcomer, 923 F.2d 284, 293 (3d Cir. 1991) ("[The] unrestricted consideration of mitigating circumstances [under the Pennsylvania death penalty statute] clearly meets the Eighth Amendment's requirements.").
To the extent that Petitioner makes the argument that the jury was "prevented, or, at least substantially impaired" from giving "full consideration" and "full effect" to the specific mitigating circumstance of Petitioner's age, due to the prosecutor's instruction to the jury, during voir dire, to not be influenced by purported "outside influences," such as feelings of sympathy for Petitioner (see Doc. 18-2, Memorandum of Law at 86), this Court finds Petitioner's argument meritless.
In his petition, Petitioner points out several incidents where the prosecutor encouraged prospective jurors to avoid the influence of sympathy. They are as follows:
Juror Violet Radel was told that "the individuals charged here are probably around 23, 23 years old, and the judge will tell you that one of the outside influences you should put aside is sympathy; just merely sympathy, that doesn't play in this case," and she promised to do so. NT-JS at 27.
Juror Jeffrey Miller was told to, and said he would, eliminate sympathetic feelings for Petitioner and that, with respect to sympathy, "either for the victim or the accused, you're supposed to look at the facts coldly and make a decision." NT-JS at 103. He was then immediately told about the defendants' ages and asked to affirm that it would not "present any particular problem." Id. He swore it would not.
Juror Christopher Miller was in one sentence warned that he "should not make decisions based upon emotionalism", asked "how old are you" and after informing the prosecutor that he was "31" was informed the "the defendants in this case are 23 or 24" and that the fact that they're within the same age ranges as you may be, that what comes into play is the evidence, not those outside considerations". NT-JS at 318-19. Juror Christopher Miller was told, and said that he understood, "that the matter of sympathy should not come into play either for the victim or for the defendants." NT-JS at 319.
Juror Clara Iwanski was told that "you're not supposed to use sympathy or emotion to decide the case, that is sympathy for either Tom here or the victim in the case isn't part of the process," and promised to follow that directive. NT-JS at 429. She was further instructed "about not bringing emotions into the case, that you know, we all have feelings; but the judge will tell you that you make your decision based on the evidence, that sympathy for the victim is not to be considered" and that "sympathy for the defendants because of their age - - their ages are about 23 or thereabouts - - that the mere fact that they're of a younger age is not to be a matter to affect your sympathy and it affecting your verdict .... You can do that?" NT-JS at 438. Ms. Iwanski said she would. NT-JS at 438-49.
Juror Bruce Barton was told that "sympathy for the victim, even sympathy for Mr. Kirchoff, that emotion should play no role in this, that you need to look at the facts, need to look at the evidence and whether or not it convinces you beyond a reasonable doubt, and apply the law as the judge will give you." NT-JS at 745.
In Caldwell v. Mississippi, 472 U.S. 320 (1985), the Supreme Court vacated a defendant's death sentence when it found that the jury responsible for imposing the sentence was misled into believing that the responsibility for determining the appropriateness of the death sentence rested with the appellate court which later reviews cases, and not with the jury. Id. at 323. A Caldwell violation occurs where the jury is affirmatively misled regarding its role in the sentencing process so as to diminish its sense of responsibility. Romano v. Oklahoma, 512 U.S. 1, 8-9 (1994).
All of the challenged comments occurred in the voir dire portion of the trial. They were directed towards a finding of guilt—not towards a determination of Marinelli's sentence. Furthermore, such comments addressed only how the jury can consider the evidence, not what evidence it can consider. Given the nature of these comments as made in this case, and further given the timing of them during the voir dire portion of the trial, see Coury v. Livesay, 868 F.2d 842, 845-46 (6th Cir.1989), we conclude that there is not a reasonable likelihood the jurors here understood the challenged comments to preclude consideration of relevant mitigating evidence offered by Marinelli. As such, this Court concludes that there was not "a reasonable likelihood" that the prosecutors comments were applied by the jury in a way that interfered with the jury's consideration of constitutionally relevant evidence, and will deny the petitioner's request for habeas relief. See Boyde, 494 U.S. 370 (1990).
In Boyde, the Court held that the "reasonable likelihood" standard was the correct standard to use when reviewing the constitutionality of a jury instruction in a capital case. The court implicitly also applied the "reasonable likelihood" standard when it reviewed the impact of the prosecutor's comments and their effect upon the jury's understanding of the relevant instruction. Boyde, 494 U.S. at 386. We note, however, that while the same standard applies when reviewing both the jury instructions and the prosecutor's comments, because the prosecutor's comments by their nature carry less weight with the jury than jury instructions, the
Moreover, any harm caused by these comments would have been further minimized because the Court's instruction unambiguously instructed the jury that it could consider the mitigating evidence stipulated to by the parties. (See Doc. 42-23, App. H1, Sentencing N.T., 5/19/95 at 956-958). Furthermore, arguments of counsel are not viewed as having the same force as jury instructions, Bovde, 494 U.S. at 386.
Finally, in his closing argument at the end of the sentencing phase, the prosecutor himself made it clear that the jury could consider any mitigating evidence:
"Mr. Rosini, counsel for [Appellant], has offered to you three mitigating circumstances. And the Commonwealth doesn't contest them. It's not for me and I don't have to show you that they don't exist. I agree that when this individual - when this crime was committed he was 21 years old. His birthday was April 30th. Conrad [Dumchock] died April 27th. He was three days from the age of 22 if that makes a difference.(Doc. 42-24, App. H1, Sentencing N.T., 5/19/95 at 936). Thus, the Court cannot accept Petitioner's argument that there is a reasonable likelihood that the likelihood that the comments influenced the jury is generally less. Id. prosecutor's comments, occurring during the voir dire portion of the trial, precluded the jury from considering relevant mitigating evidence. Accordingly, we find no constitutional violation. Claim XII
We also agree that there is no significant criminal history. And that is a mitigating factor. And Mr. Joseph Marinelli, his brother, came on as a third mitigating factor that Mr. Kevin Marinelli had a rough childhood, that he came from a broken home... .
* * *
I submit we have proven two aggravating circumstances beyond a reasonable doubt. And I will give them their mitigating circumstances, all three of them.
Petitioner's death sentence should be vacated because of unconstitutional jury instructions and prosecutorial argument regarding torture.
Marinelli argues that the trial court's instruction on the aggravating circumstance of torture, 42 Pa. Cons. Stat. § 9711(d)(8), was unconstitutionally vague in violation of the Eighth Amendment and that his counsel was ineffective for failing to object and litigate the alleged constitutional error. (Doc. 18-4, Memorandum of Law at 147-152). Specifically, Petitioner objects to the trial court's definition of "torture" as a killing that is "unnecessarily heinous, atrocious or cruel, manifesting exceptional depravity". Id. Although trial counsel argued on direct appeal that the Commonwealth failed to prove torture beyond a reasonable doubt, Marinelli claims that such an argument was frivolous and "counsel's litigation of this frivolous challenge to the 'torture' instruction, when the above-described meritorious challenge would have been obvious to any effective lawyer," violated his Sixth and Fourteenth Amendment rights. Id. at 150-152.
Marinelli presented this constitutional challenge to the torture instruction to the Pennsylvania Supreme Court on appeal from the denial of his PCRA petition. Marinelli, framing his argument as follows: "The 'Torture' Instruction, Especially in Conjunction With the Prosecutor's Argument was Unconstitutionally Vague, Overbroad, Arbitrary and Capricious in Violation of the Sixth, Eighth and Fourteenth Amendments." (Doc. 30-12, App. Q2, Initial Brief of Appellant at 61). The Pennsylvania Supreme Court declined to address this issue, however, finding that it was previously litigated on direct appeal. Specifically, the Court stated that "A PCRA petitioner cannot obtain post-conviction review of claims that were previously litigated by alleging ineffectiveness of prior counsel and presenting new theories of relief to support a previously litigated claim." (Doc. 27-9, App. R, Marinelli-2 at 20-11). Thus, because the Pennsylvania Supreme Court was provided with the opportunity to address Marinelli's constitutional challenge to the torture instruction, but declined to do so, this Court may review the claim de novo.
On direct appeal, the Pennsylvania Supreme Court addressed Marinelli's issue in connection with the torture instruction as follows:
Appellant next contends that the Commonwealth failed to prove torture beyond a reasonable doubt. The aggravating circumstance of torture set forth in 42 Pa.C.S. § 9711(d)(8) must be proven beyond a reasonable doubt. 42 Pa.C.S. § 971 l(c)(l)(iii). In order to establish torture, the Commonwealth must prove that the defendant had a specific intent to inflict "a considerable amount of pain and suffering on a victim which is unnecessarily heinous, atrocious, or cruel, manifesting exceptional depravity." Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078,1091 (1993)(citing Commonwealth v. Thomas, 522 Pa. 256, 277, 561 A.2d 699, 709 (1989)). As we explained in Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987):(See Doc. 27-4, App K, Marinelli-1 at 9-11).
The aggravating circumstance provides an additional element to the intentional killing which justifies the ultimate sentence. Thus subsection 8 of section 9711 must of necessity require more than a mere intent to kill. Implicit in subsection 8 is the requirement of an intent to cause pain and suffering in addition to the intent to kill.Id. at 279-80, 523 A.2d at 737 (footnote omitted). Moreover, this court recently stated in Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305 (1996):
Neither the efficacy of the means employed by a defendant to murder his victim nor the immediacy of death is in itself determinative of the question whether the offense was committed by means of torture. Commonwealth v. Caldwell, 516 Pa. 441, 448, 532 A.2d 813, 817 (1987). There must be an indication that the killer was not satisfied with the killing alone. Edmiston, ["supra ].Id. at 551, 681 A.2d at 1321.
A forensic pathologist, Dr. Isidore Mihalakis, determined the victim's cause of death was two gunshot wounds to his head, and the killing was considered a homicide. Dr. Mihalakis testified that prior to receiving the two gunshot wounds to his head, the victim received two types of impact injuries: those from a cylindrical object, consistent with the throat of a baseball bat, and those administered by kicks. The victim had separate injuries to his left arm and hand, and had injuries to his left leg, upper chest, right side of his abdomen, right hand, base of his neck and the skin around his neck, left ear, cheek, head and scalp. The victim suffered twelve fractures to his ribs, and forty-seven blunt force injuries in all.
Dr. Mihalakis testified the victim's bruises indicated that considerable force was used on him and that he suffered extreme pain as a result of the beating. Dr. Mihalakis further determined that the victim's wounds resulted from a beating which lasted at least one half hour and perhaps as long as two hours. Moreover, the forensic pathologist determined that because there was gunpowder residue present on the victim's hand from his attempt to ward off his killer and his eye was open at the time he was shot, the victim had been conscious and aware of what was happening during the beating.
We find that the Commonwealth proved the aggravating circumstance of torture beyond a reasonable doubt in this matter.
In Furman v. Georgia, 408 U.S. 238 (1972), the United States Supreme Court held that the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner. The Court sounded this theme in Gregg v. Georgia, 428 U.S. 153, 189 (1976): "[W]here discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably limited so as to minimize the risk of wholly arbitrary and capricious action." In Godfrey v. Georgia, it was explained:
[I]f a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates "standardless [sentencing] discretion." Gregg v. Georgia, supra, at 196, n. 47. See also Proffitt v. Florida, 428 U.S. 242 [1999]; Jurek v. Texas, 428 U.S. 262 [1976]. It must channel the sentencer's discretion by "clear and objective standards" that provide "specific and detailed guidance," and that "make rationally reviewable the process for imposing a sentence of death."446 U.S. 420, 428 (1980) (additional citations contained in footnotes and parallel citations omitted).
A state's sentencing procedures can run afoul of the rule set down in Furman and Gregg if: (1) the state defines its aggravating circumstances too broadly, either in a statute or in an instruction given to the jury, such that these circumstances could apply to every possible defendant convicted of murder, see Tuilaepa v. California, 512 U.S. 967, 972 (1994): see also Godfrey, 446 U.S. at 428; or, (2) the state defines its aggravating circumstances in a way that is too vague, such that they fail to "channel the [jury's] discretion by 'clear and objective standards' that provide 'specific and detailed guidance.' " Godfrey, 446 U.S. at 428 (citations omitted). When jury instructions are overly broad or overly vague they create the risk that the jury will arbitrarily impose the death penalty in violation of the Eighth Amendment. Id.
In Godfrey, a Georgia jury was instructed on an aggravating circumstance that provided that a defendant could be sentenced to death if it found beyond a reasonable doubt that the murder "was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Id. at 422, 426. In his opinion announcing the judgment of the Court, Justice Stewart observed that the words "outrageously or wantonly vile, horrible and inhuman" did not, standing alone, impose any limitation on "the arbitrary and capricious infliction of the death sentence." Id. at 428. Because "[a] person of ordinary sensibility could fairly characterize almost every murder as 'outrageously or wantonly vile, horrible and inhuman,' " it was concluded that the trial court gave no guidance concerning the meaning of those words and its interpretation of them "can only be the subject of sheer speculation." Id. at 428-29. Since there was "no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not," it was held that the challenged jury instruction was unconstitutionally vague. Id. at 433.
The holding in Godfrey was applied in Mavnard v. Cartwright, 486 U.S. 356, (1988), where the Court again struck down a jury instruction as unconstitutionally vague. In that case, the jury sentenced the defendant to death relying on two aggravating circumstances, one being that the murder was "especially heinous, atrocious, or cruel." Id. at 358-59. Addressing the jury instruction, the Court stated the following:
[T]he language of the Oklahoma aggravating circumstance at issue-"especially heinous, atrocious, or cruel"-gave no more guidance than the "outrageously or wantonly vile, horrible or inhuman" language that the jury returned in its verdict in Godfrey. The State's contention that the addition of the word "especially" somehow guides the jury's discretion, even if the term "heinous" does not, is untenable. To say that something is "especially heinous" merely suggests that the individual jurors should determine that the murder is more than just "heinous," whatever that means, and an ordinary person could honestly believe that every unjustified, intentional taking of human life is "especially heinous."Id. at 363-64. Accordingly, the Court held that the instruction violated the Eighth Amendment and vacated the defendant's death sentence. Id.
Marinelli argues that the torture instruction given in his case was unconstitutionally vague because, similar to the instruction given in Mavnard, it instructed that the jury could find that the aggravating circumstance of torture was present in the murder of Dumchock, if it found that his murder was "heinous or atrocious or cruel and show[ed] exceptional depravity." See, e.g., Shell v. Mississippi, 498 U.S. 1 (1990); Espinosa v. Florida, 505 U.S. 1079, 1081 (1992); Richmond v. Lewis, 506 U.S. 40, 47 (1992); Walton v. Arizona, 497 U.S. 639, 654 (1990). When language injury instructions is challenged, the language in question " 'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The court must then consider " 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Id. (quoting Boyde v. California, 494 U.S. 370, 380 (1990)); see also Victor v. Nebraska, 511 U.S. 1, 6 (1994); Smith v. Horn, 120 F.3d 400, 411 (3d Cir.1997).
Applying this standard, the shortcoming in Marinelli's argument is immediately obvious. He fails to acknowledge that the instruction given in his case contained a much more detailed definition of torture than he recites. See Mavnard, 486 U.S. at 364-65 (approving the limitation of the "heinous, atrocious, or cruel" aggravating circumstance to killings in which the victim suffered "some kind of torture or serious physical abuse" prior to the murder). The trial court's complete instruction on the aggravating circumstance of torture was as follows:
Now, the second alleged aggravating circumstance is that the offense was committed by means of torture. For a person to commit First Degree Murder by torture he must intend to do more than kill his victim. He must intend to inflict a considerable amount of pain and suffering on the victim which is unnecessarily heinous, atrocious or cruel, manifesting exceptional depravity. One acts with intent if it is his conscious object to cause a particular result.(Doc. 42-24, App. H1, Sentencing N.T., 5/19/95 at 956).
The trial court's instruction advised the jury not only that the manner in which Marinelli killed Dumchock had to have been unnecessarily heinous or atrocious or cruel, showing exceptional depravity, but that it also had to have been committed with the intent to inflict a considerable amount of pain and suffering upon Dumchock that was unnecessary or more than needed to effectuate his death. Thus, the instruction was much different than those given in the cases upon which Marinelli relies. In his case, the trial court's instruction sufficiently channeled the jury's discretion to prevent an arbitrary and capricious sentencing decision. As such, counsel was not ineffective for failing to challenge the instruction. Claim XIII
Petitioner's death sentence should be vacated because the penalty phase instructions shifted the burden of persuasion from the Commonwealth to Petitioner and violated the presumption of life.
Petitioner claims that the penalty phase jury instructions shifted the burden of persuasion from the Commonwealth to Petitioner and violated the presumption of life. (Doc. 18-4, Memorandum of Law at 152). Specifically, he states that "the jury instructions told the jury it had to 'reject[] the death penalty' in order to impose a life sentence and had to give a 'reason for rejecting the death penalty.' Id. The instructions thus imposed a presumption in favor of death, instead of a presumption of life, which violated Petitioner's Sixth, Eighth and Fourteenth Amendment rights. Id. Petitioner claims that he was also denied his Sixth and Fourteenth Amendment right to effective assistance of counsel at trial and on direct appeal when counsel failed to object to the instructions, failed to seek proper instructions, and failed to raise the issue on direct appeal. (Doc. 9, Petition at ¶ 204).
Marinelli's claim that the court's jury instruction impermissibly shifted the burden of persuasion from the Commonwealth to him was presented to the Pennsylvania Supreme Court, on appeal from the denial of post-conviction relief (after remand), as follows:
The penalty phase jury instructions unconstitutionally shifted the burden of persuasion from the Commonwealth to Appellant and violated the presumption of life afforded defendants in capital sentencing proceedings. These errors violated 42 Pa.C.S. 9711(c); the 6th, 8th and 14th Amendments; and Article I, Sections 9 and 13 of the Pennsylvania Constitution.(Doc. 30-13, App. T1 at 21).
The Pennsylvania Supreme Court rejected Marinelli's claim. (Doc. 27-11, App. W1, Marinelli-3 at 14-18). The Court provided the following extensive analysis in support of its decision:
Appellant next argues that his death sentence should be vacated because the trial court's penalty phase instructions to the jury "unconstitutionally shifted the burden of persuasion from the Commonwealth to Appellant and violated the presumption of life afforded defendants in capital sentencing proceedings." (Brief of Appellant at 21). In support of this claim, Appellant cites a single, three-sentence excerpt from the trial court's penalty phase instructions, which span fourteen pages of the notes of testimony.(Doc. 27-11, App. W1, Marinelli-3 at 14-18).
During its penalty phase instructions, the trial court provided specific directions to the jury as to how to record its verdict and findings on the sentencing verdict slip. Appellant cites the following excerpt from those specific directions:
If your sentence is life imprisonment you check the findings of either CI or C2, which explains why you are rejecting the death penalty and imposing a life sentence.... If the reason for rejecting the death penalty is that all of you find no aggravating circumstances, check CI. If the reason for rejecting death is that although all of you agree on at least one aggravating circumstance, one or more of you find that the mitigating are not outweighed by the aggravating circumstances, then check C2.(Brief of Appellant at 22 (quoting N.T., 5/19/95, at 964)). According to Appellant, the trial court's use of the word "reject" both "suggested that a death sentence is the rule and a life sentence is the exception" and "requir [ed] the defendant to rebut a presumption of death resulting from findings of enumerated aggravating circumstances." (Id.)
Our standard of review of penalty phase jury instructions is no different from that which guides us in reviewing a jury charge given during the guilt phase of a trial:
In reviewing a challenge to a jury instruction the entire charge is considered, not merely discrete portions thereof. Commonwealth v. Stokes, 532 Pa. 242, 615 A.2d 704, 708 (1992). The trial court is free to use its own expressions as long as the concepts at issue are clearly and accurately presented to the jury. Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d 28 (1991).Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346, 360 (1999); accord Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 779 (1998).
When viewed in their entirety, the trial court's penalty phase instructions clearly and accurately explained the respective burdens of proof of Appellant and the Commonwealth as well as the presumption of life to which Appellant was entitled. The trial court began its sentencing charge to the jury as follows:
Members of the jury, you must now decide whether to sentence the defendant to death or life imprisonment. Your sentence will depend upon what you find about aggravating and mitigating circumstances. The sentencing code defines aggravating and mitigating circumstances. They are things that make a First Degree Murder case either more terrible or else less terrible. Your verdict must be a sentence of death if you unanimously find, that is, all of you find at least one aggravating and no mitigating circumstances, or if you unanimously find one or more aggravating circumstances which outweighs as to quality, not quantity, any mitigating circumstances. If you do not all agree on one or the other of these findings, then the only verdict that you may return is a sentence of life imprisonment.
The Commonwealth must prove any aggravating circumstances beyond a reasonable doubt. This does not
mean that the Commonwealth must prove the aggravating circumstances beyond all doubt or to a mathematical certainty. A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his own affairs....(N.T., 5/19/95, at 952-53). After accurately defining "preponderance of the evidence" (id. at 953-54), the trial court proceeded to enumerate and separately define each of the aggravating and mitigating circumstances at issue in the case (id. at 954- 57). Next, the trial court provided its specific directions to guide the jury in recording its verdict and findings on the sentencing verdict slip. In this context, the trial court instructed the jury as follows:
By contrast, the defendant must prove any mitigating circumstances. However, he only has to prove mitigating circumstances by a preponderance of the evidence, that is by the greater weight of the evidence. This is a lesser standard than that of beyond a reasonable doubt. And I will define it for you.
As I told you earlier, you must agree unanimously on one of two general findings before you can sentence the defendant to death. They are a finding that there is at least one aggravating circumstance and no mitigating circumstance, or a finding that there are one or more aggravating circumstances which outweigh any mitigating circumstances.
In deciding whether aggravating outweigh mitigating circumstances, do not simply count their number. Compare the seriousness and importance of the aggravating with the mitigating circumstances. If you all agree on either one of the two general findings then you can and must sentence the defendant to death.
When voting on the general findings, you are to regard a particular aggravating circumstance as present only if you all agree that it is present. On the other hand, each of you is free to regard a particular mitigating circumstance as present despite what other jurors may believe. This is a difference between aggravating and mitigating findings. And I'll repeat it.... This different treatment of aggravating and mitigating circumstances is one of the law's safeguards against unjust death sentences. It gives the defendant a full benefit of any mitigating circumstances.(Id. at 957-58). The trial court then proceeded to read aloud the instructions as printed on the verdict slip, which, inter alia, explained the distinct burdens of proof and degrees of consensus required with respect to aggravating and mitigating circumstances. (Id. at 959-63). Finally, the trial court clarified the verdict slip instructions as follows:
It is closely related to the burden of proof requirements. Remember, the Commonwealth must prove any aggravating circumstance beyond a reasonable doubt while the defendant only has to prove any mitigating circumstance by a preponderance of the evidence.
Members of the jury, I'm sure that this instruction seems very confusing and it is very complex, but I believe that when you deliberate and you go over it and review it, it will become self-explanatory. I will just repeat that under part two, which is your findings and your verdict, before you can sentence the defendant to death, you must all agree on a general finding in either B1 or B2. If you all agree on the aggravating circumstances and all agree that there are no mitigating circumstances then check B1.
. . .
If you all agree on one or more aggravating circumstances, and although one or more of you find
mitigating circumstances, you must all agree that the aggravating outweigh the mitigating circumstances, then check B2. . . .(Id. at 963-64).
If your sentence is life imprisonment, you check the findings of either C1 or C2, which explains why you are rejecting the death penalty and imposing a life sentence.. . .If the reason for rejecting the death penalty is that all of you find no aggravating circumstances, check C1. If the reason for rejecting death is that although all of you agree on at least one aggravating circumstance, one or more of you find that the mitigating are not outweighed by the aggravating circumstances, then check C2.
Thus, the three-sentence excerpt upon which Appellant relies appears in the context of the trial court's repeated emphasis on the more exacting requirements that the Commonwealth faced in attempting to prove its two aggravating circumstances, compared to the relatively lenient standards applicable to Appellant with respect to his two mitigating circumstances. Accordingly, Appellant's claim that the trial court's use of the word "reject" rendered its penalty phase instructions erroneous lacks arguable merit, and counsel for Appellant cannot be found ineffective for failing to raise it. Commonwealth v. Hall, 701 A.2d 190, 203 (1997).
The due process clause of the Fourteenth Amendment requires the government to prove beyond a reasonable doubt every element of the crime with which a defendant is charged. In re Winship, 397 U.S. 358 (1970); United States v. Gaudin, 515 U.S. 506, 510, 522-23 (1995). Accordingly, a criminal conviction violates due process when the trial court fails to instruct the jury on an element that the prosecution must prove beyond a reasonable doubt. Gaudin, 515 U.S. at 522-23. In Gaudin, for instance, the defendant was charged with making false statements under 18 U.S.C. § 1001, a statute that contains "materiality" as an element of the offense. Gaudin, 515 U.S. at 509. At trial, the district court informed the jury that "[t]he issue of materiality ... is not submitted to you for your decision.... You are instructed that the statements charged in the indictment are material statements." Id- The Court of Appeals reversed the defendant's conviction, and the Supreme Court affirmed. Id. at 522-23. "The Constitution," it wrote in an opinion by Justice Scalia, "gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged. The trial judge's refusal to allow the jury to pass on the 'materiality' of Gaudin's false statements infringed that right." Id.
In determining whether a jury instruction runs afoul of due process, a district court "must focus initially on the specific language challenged." Francis v. Franklin, 471 U.S. 307, 315 (1985); Smith v. Horn, 120 F.3d 400, 411 (3d Cir. 1997). The court must then consider the challenged language in the context of the jury charge as a whole. Francis, 471 U.S. at 309, 318-19; Smith, 120 F.3d at 411. The ultimate question is " 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Bovde v. California, 494 U.S. 370, 380 (1990)); Smith, 120 F.3d at 411. Under Bovde, it is not enough that a disputed charge might have been, or could have been, misinterpreted by the jury, or that a single juror or some number less than all of the jurors was confused by the instruction. Id. at 378-80. The Bovde standard requires the petitioner to demonstrate a reasonable probability that all of the jurors were sufficiently confused by the disputed instruction as to have interpreted the charge in an unconstitutional manner. Id. See also Weeks v. Angelone, 528 U.S. 225, 238 (2000) (rejecting notion that possibility, rather than reasonable probability, of total jury confusion is sufficient for constitutional error).
Nonetheless, even if a jury instruction is found to violate due process, a district court should grant a new trial only if the error is not harmless. Neder v. United States, 527 U.S. 1, 9 (1999) (holding that harmless error analysis applies to jury instructions that violate the principle of Gaudin); Smith, 120 F.3d at 417-18 (applying the harmless error standard from Brecht IV. Abrahamson, 507 U.S. 619 (1993)], to habeas petitioner's claim that trial court improperly instructed the jury that it could convict without finding that petitioner had specific intent to kill).
This Court finds that the Pennsylvania Supreme Court's conclusion that Petitioner's penalty phase instructions challenge lacks merit was not an unreasonable application of clearly established Federal law. In accordance with federal law, the Court appropriately reviewed the jury instruction as a whole, finding that it amply complied with constitutional standards, by effectively setting forth that which was required of the Commonwealth to prove its two aggravating circumstances, compared to that what was required of Petitioner, in proving his two mitigating circumstances. Thus, Petitioner falls short of establishing that there was a reasonable likelihood that the jury applied the challenged instructions in a way that violated the Constitution. Finding that Petitioner's claim is without merit, there can be no finding that Petitioner's counsel was ineffective for failing to object to such instruction; nor can appellate counsel be found ineffective for failing to purse this claim on appeal. Petitioner's claim is denied. Claim XIV
Petitioner's death sentence should be vacated because the sentencing jury was never instructed that, if sentenced to life, he would be ineligible for parole.
Marinelli argues that the trial court violated his Due Process and Eighth Amendment rights when it failed to instruct the jury that a life sentence means life without parole, as is required under Simmons v. South Carolina, 512 U.S. 154 (1994) and its progeny, after the Commonwealth put his future dangerousness at issue during both phases of his trial. (Doc. 18-4, Memorandum of Law at 158-159). Marinelli also argues that direct appeal counsel was ineffective for failing to properly litigate this claim. Id. For the reasons that follow, the Court finds these claims have no merit.
In support of his contention that the Commonwealth put his future dangerousness at issue, Petitioner states that "given the evidence and prosecutorial arguments presented at trial and sentencing regarding this offense, future dangerousness likely weighed heavily here". Id. He further states that "numerous other factors painted for the jury a frightening image of Petitioner, including the evidence and arguments that Petitioner became "more aggressive" while in the military; the prosecutor's repeated descriptions of the offense as a "military like operation"; the prosecutor's repeated emphasis that Petitioner was dressed in a military-like fashion (e.g., "camouflage" and "military like boots"); the prosecutor's arguments that Petitioner is a violent (ergo dangerous) person; the prosecutor's assertions that Petitioner was the ringleader in the offense; the prosecutor's assertion that Petitioner killed to prevent the victim from identifying him; and the prosecutor's argument that Petitioner is a violent, young torturer who committed multiple felonies, while also having the jury promise to not have sympathy because of Petitioner's age. Id. Marinelli concludes that because the jury was not instructed that life imprisonment is without parole, Petitioner's youth, which should have been mitigating, made him appear to present a future danger since it made it likely he would live long enough to be paroled even if the presumed term of years was lengthy. Id.
Marinelli presented this claim to the Pennsylvania Supreme Court, on appeal from the denial of post-conviction relief (after remand). Citing Simmons and Pennsylvania law, the Pennsylvania Supreme Court resolved the issue as follows:
Appellant next argues that his death sentence should be vacated because the trial court failed to include in its sentencing charge the instruction that, in Pennsylvania, a defendant who receives a life sentence for first-degree murder is statutorily ineligible for parole. See Simmons v. South Carolina, 512 U.S. 154 (1994). According to Appellant, the absence of a Simmons instruction violated his constitutional rights to, inter alia, due process and an impartial jury capable of making a reasoned moral judgment.(Doc. 27-11, App. W1, Marinelli-3 at 20-21).
In Simmons, the United States Supreme Court recognized that a state "may not create a false dilemma by advancing generalized arguments regarding the defendant's future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole." Id. at 171. Therefore, the Simmons Court held that, where the state puts the future dangerousness of the defendant into issue, due process requires that the defendant be entitled to inform the jury that he or she is ineligible for parole. Id. In Pennsylvania, however, where future dangerousness is not expressly indicated, instructions detailing the character of a life sentence are not required. Commonwealth v. King, 721 A.2d 763, 779 (Pa. 1998) (citing Commonwealth v. May, 710 A.2d 44, 47 (Pa. (1998)).
Appellant presently argues that the prosecutor put future dangerousness at issue by such conduct as "eliciting testimony that [Appellant] became a [sic] 'more aggressive' while in the military" (Brief of Appellant at 27 (quoting N.T., 5/16/95, at 479-83, 489-99)(emphasis added)), and by "assert[ing] that Appellant was the ringleader in the offense," which the prosecutor "repeatedly described ... as a 'military like operation.'" (id. at 27-28 (quoting N.T., 5/12/95 - 5/18/95, at 45, 48-49, 412-13, 418, 538, 600, 794-95, 802-03)(emphasis added)). Nevertheless, we have continually made clear that a prosecutor does not implicate Simmons merely by making reference to the defendant's violent past.
In the instant case, as the PCRA court found, "the prosecution never argued, either directly or by implication ... that [Appellant] would present a future threat to society." (PCRA ct. Op. at 9). Therefore, Simmons was not applicable to the case sub judice, and counsel for Appellant cannot be found ineffective for failing to argue otherwise. Hall, 701 A.2d at 203.
In Simmons, the Supreme Court held that not informing a jury that a defendant would never be released on parole if sentenced to life is a violation of due process requiring a new sentencing phase. Simmons, 512 U.S. at 154. However, that requirement is only applicable when the prosecution argues future dangerousness. The Court explained:
Holding all other factors constant, it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not. Indeed, there may be no greater assurance of a defendant's future nondangerousness to the public than the fact that he never will be released on parole. TheId., 512 U.S. at 164.
trial court's refusal to apprise the jury of information so crucial to its sentencing determination, particularly when the prosecution alluded to the defendant's future dangerousness in its argument to the jury, cannot be reconciled with our well-established precedents interpreting the Due Process Clause.
Further, the Third Circuit Court of Appeals has emphasized that in reviewing the constitutionality of the Commonwealth's conduct at sentencing, "[t]he relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Thomas v. Horn, 570 F.3d 105, 120 (3d Cir.2009) (quoting Darden v. Wainwright, 477 U.S. 168, 181(1986) (citation omitted)). It has further instructed that in evaluating a claim like the one at issue here, the habeas court must not consider the alleged improper argument and evidence in isolation. Thomas, 570 F.3d at 120-21. Rather, they must be considered in context to see if the Commonwealth urged the jury to consider future dangerousness when contemplating the death penalty and created an unacceptable risk that the jury believed, in error, that the defendant could be released on parole if he were not sentenced to death. Id.
In this case, when considered in context, the prosecutor's comments did not convey a message that Marinelli posed a threat of future dangerousness if not sentenced to death. Referencing Petitioner behavior in the military, and that he was the ringleader in the offense, does not expressly suggest to the jury that Marinelli would pose a danger to society if he was released from prison. These circumstances, in fact, speak to Marinelli's past rather than his future. Thus, the prosecutor's comments cannot be read as an encouragement to the jury to consider any future danger Marinelli may have posed to others if he was not sentenced to death. Nor did the prosecutor's comments create an unacceptable risk that the jury believed that, if it did not impose the death penalty, Marinelli could be released on parole. As such, the state court's decision is not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).
In addition to the substantive claim, Marinelli claims counsel was ineffective for failing to properly litigate this claim. As discussed in the preceding subsection, the underlying claim put forth by Marinelli is meritless, and counsel's performance cannot be deficient based on a failure to advance meritless claims. Strickland, 466 U.S. at 691. Therefore, Marinelli's claim of ineffective assistance of counsel must fail. Claim XV
Petitioner's death sentence should be vacated because the jury instructions' definition of mitigating circumstances prevented the jury from giving full effect to mitigation.
Petitioner claims a violation of the Eighth Amendment when the trial court "instructed the jury that mitigating circumstances are things that "make the case less terrible", and that this instruction "diverted the focus of the jury's life or death deliberation from a reasoned determination as to Petitioner's personal culpability to an amorphous and unguided consideration of how 'terrible the case' was." . (Doc. 18-4, Memorandum of Law at 170-171). He argues that "the emphasis on 'the case' directs the jury's attention to the circumstances of the offenses, at the expense of the constitutionally mandated consideration of those aspects of defendant's personal background and history that make him a 'uniquely individual human being'," and that the "focus on 'terrible[ness]' is also inappropriate, since no reasonable juror could consider a first-degree murder case to be anything but of the utmost 'terribleness'." Id. Petitioner also claims that he was denied his Sixth and Fourteenth Amendment right to effective assistance of counsel and on direct appeal when counsel failed to object, seek appropriate instructions, and raise this issue on direct appeal. (Doc. 9, Petition at ¶ 216).
In addressing this issue on appeal from the denial of Marinelli's PCRA petition, the Pennsylvania Supreme Court found the following:
Appellant next claims that the trial court failed to instruct the jury properly as to the nature and use of aggravating and mitigating circumstances. Specifically, according to Appellant, the trial court's(Doc. 27-11, App. W1. Marinelli-3 at 24-25).
description of those circumstances as " 'mak[ing] a first degree murder case either more terrible or less terrible' diverted the focus of the jury's life or death deliberation from a reasoned determination as to the defendant's personal culpability to an amorphous and unguided consideration of how 'terrible"the case' was."
The excerpt that serves as the basis for the instant claim reads as follows:
The sentencing that you impose will depend on whether you find any of the things that the Pennsylvania Sentencing Code calls aggravating or mitigating circumstances. Aggravating circumstances are things about the killing and the killer which make a First Degree Murder case more terrible and deserving of the death penalty. Mitigating circumstances are those things that make the case less terrible and less deserving of death.As we noted in discussing Appellant's other penalty phase instruction claim, our standard of review of penalty phase jury instructions is no different from that which guides us in reviewing a jury charge given during the guilt phase of a trial. In particular, we recall that "[a] trial court has broad discretion in phrasing its instructions to the jury and can choose its own wording so long as the law is clearly, adequately and accurately presented to the jury for consideration."
In Commonwealth v. Stevens, 559 Pa. 171, 739 A.2d 507, 527 (1999), we deemed meritless a similar challenge based on a portion of penalty phase instructions that is materially identical to that upon which Appellant relies. As we stated in Stevens, the trial court's explanation of aggravators and mitigators as aspects of the killing and the killer that make a first-degree "case" either more or less "terrible" appropriately "expressed to the jury, in laymen's terms, the purpose for the distinction between aggravating and mitigating circumstances in a capital penalty phase." Id. Although we decided Stevens subsequent to Appellant's sentencing, Appellant fails to cite any earlier authority holding that explaining aggravating and mitigating
circumstances in these terms constitutes reversible error. Therefore, the underlying claim of the instant issue lacks merit, and counsel cannot be deemed ineffective for failing to raise it. Hall, 701 A.2d at 203.
The question for consideration in evaluating an allegedly erroneous jury instruction is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72, 112 (1991) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The instruction is considered in the context of the instructions as a whole and the trial record, Cupp, 414 U.S. at 147, and reviewed to determine "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution. Bovde v. California, 494 U.S. 370, 380 (1990).
Marinelli has not met this standard here. Upon review, the court concludes that the Pennsylvania Supreme Court's adjudication of this issue survives federal habeas review under AEDPA, 28 U.S.C. § 2254(d)(1). Considering the context of the instructions as a whole, Marinelli has not shown that there is a reasonable likelihood that the jury applied the challenged instructions in a way that violates the Constitution. See, e.g., Estelle, 502 U.S. at 72; Bovde, 494 U.S. at 380. There was no error in the language he challenges. It did not divert the jury from focusing on his personal culpability to whether his case was "terrible." The trial court merely was explaining generally the role of mitigating and aggravating factors in a capital case as it introduced those concepts to the jury. Viewing the instructions as a whole, the court concludes that the Pennsylvania Supreme Court's decision is not contrary to, or an unreasonable application of, clearly established federal law. Id. § 2254(d)(1). Moreover, as the court has determined that Marinelli's claim with respect to this instruction is meritless, his ineffective assistance of counsel claim also fails. See Strickland, 466 U.S. at 691 (reasoning counsel's performance cannot be deficient based on a failure to advance meritless claims). Claim XVI
Petitioner's death sentence should be vacated because the Pennsylvania Supreme Court failed to provide meaningful proportionality review.
At the time of Petitioner's direct appeal of his death sentence in 1995, the Pennsylvania Supreme Court was statutorily required to determine whether his sentence was "excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant." 42 Pa.C.S. § 971 l(h)(3)(iii) (1992). In light of this directive, the Pennsylvania Supreme Court, relying upon "sentencing data compiled by the Administrative Office of the Pennsylvania Courts [,]" determined that "the sentence imposed upon [Petitioner] to be not excessive or disproportionate to the sentence imposed upon defendants in similar cases." (Doc. 27-4, App. K, Marinelli-1, at 35-36).
Petitioner challenges the Supreme Court's determination, asserting that the review he was provided was not "meaningful"; the Court failed to take into account Petitioner's undisputed mitigation in their proportionality review; Petitioner was never provided the materials relied upon by the Pennsylvania Supreme Court in its proportionality review, nor afforded formal notice and an opportunity to be meaningfully heard in the Pennsylvania Supreme Court's review; and counsel was ineffective for failing to object to such errors, in violation of "state and federal constitutional law." (Doc. 18-4, Memorandum of Law at 176-179).
In addressing this issue on appeal from the denial of Marinelli's PCRA petition, the Pennsylvania Supreme Court found the following:
Finally, Appellant argues that his death sentence must be vacated because this Court failed to provide meaningful proportionality review. We have consistently held that such a claim is previously litigated where the Court conducted proportionality review on direct appeal. On direct review of Appellant's conviction and death(Doc. 27-11, App. W1. Marinelli-3 at 27).
sentence, we performed an independent review of this case because it involved a death sentence imposed before June 25, 1997, the effective date of the act that repealed the statutory requirement of proportionality review. We ultimately determined that Appellant's sentence of death was proportional to the sentences imposed in similar cases. Therefore, Appellant is ineligible for relief on this claim.
Appellant actually concedes as much in his Brief to this Court. (See Brief of Appellant at 8 ("The lower court held that [this c]laim is 'previously litigated.' Under this Court's precedent, the lower court is right. [Appellant] nevertheless presents [this c]laim here to preserve it and urges this Court to consider it.") (internal citation omitted)).
The United States Constitution does not require state appellate courts to engage in proportionality review in capital cases, Pulley v. Hicks, 465 U.S. 37, 50-51 (1984), and it is not the "province of a federal habeas court to reexamine state-court determinations on state court questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Further, it is "unclear whether, under Third Circuit law, a state proportionality-review statute creates any cognizable liberty interest for due process purposes." Riley v. Taylor, 277 F.3d 261, 311-12 (3d Cir.2001); see Frey v. Fulcomer, 132 F.3d 916, 925 n. 7 (3d Cir.1997). Even assuming such a liberty interest exists, a federal court's review of state proportionality review is generally limited. If a federal court finds that the state court performed its proportionality review in good faith, "it cannot 'look behind' the state court's conclusion of proportionality to consider whether the state court misapplied state proportionality law." Id. (quoting Walton v. Arizona, 497 U.S. 639, 656 (1990), rev.'d on other grounds Ring v. Arizona, 536 U.S. 584 (2002)); see also Bannister v. Delo, 100 F.3d 610, 627 (8th Cir. 1996).
Petitioner contends that the Pennsylvania Supreme Court's proportionality review was not meaningful, because the database of cases that it relied upon included material inaccuracies and omissions. Plaintiff claims that a "proportionality review grounded in an identifiably flawed database which the court has consistently refused to correct, is a review done in bad faith [,]" particularly considering that the "mistakes ... have been frequently called to the Pennsylvania Supreme Court's attention[.]" (Doc. 36, Petitioner's Reply at 19-20.) There is no indication in Petitioner's submission, however, that the alleged errors in the database were called to the Supreme Court's attention at the time it performed its proportionality review of Petitioner's case in 1995.
In any event, the Pennsylvania Supreme Court has repeatedly rejected claims challenging its proportionality review process, including claims based upon the alleged errors Petitioner relies upon here. In Commonwealth v. Gribble, the Pennsylvania Supreme Court held that "we believe that our proportionality review comports with the General Assembly's desire to afford capital defendants an additional check against the arbitrary imposition of the death penalty." 550 Pa. 62, 703 A.2d 426, 440 (Pa. 1997). In Commonwealth v. Harris, the Court rejected a claim that the "data base maintained by the Administrative Office of Pennsylvania Courts (AOPC) is substantially flawed and the procedures which produce the results are inherently defective." Given the Supreme Court's pronouncement on this issue, there is no indication that the Court performed its proportionality review of Petitioner's claim in bad faith. We, therefore, will not "look behind" the Supreme Court's conclusion to consider whether it properly applied state proportionality law. See Riley, 277 F.3d at 311-12; Stevens v. Beard, 701 F. Supp.2d 671, 706-07 (W.D. Pa.2010).
550 Pa. 92, 703 A.2d 441, 451-52 (1997); see Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346, 361 (Pa. 1999); Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 708-09 (Pa. 1998) (rejecting challenge to proportionality review because "litigants are afforded no access to the data upon which it is based and because that data, by virtue of underinclusiveness, is fundamentally flawed").
Petitioner further asserts that he was unable to challenge the integrity of the database, since he "was never provided the materials relied upon by the Pennsylvania Supreme Court in its proportionality review, nor afforded formal notice and an opportunity to be meaningfully heard" on this issue in violation of due process. (Doc. 18-4, Memorandum of Law at 178).
The information that the Pennsylvania Supreme Court relied upon in performing its review "is made available by ... [the Administrative Office of Pennsylvania Courts] free of charge." Commonwealth v. DeHart, 516 A.2d 656, 260-61 (Pa. 1986). In addition, the proportionality review process was "an appellate process, statutorily mandated, to ensure that sentences of death are not imposed by Pennsylvania juries and/or jurists, in a disproportionate manner." Laird, 726 A.2d at 361. Under state law, it was not an "adversarial part of the trial or the sentencing procedures in a death penalty case." Commonwealth v. Banks, 540 Pa. 143, 656 A.2d 467, 474 (1995).
In denying Petitioner federal relief on this basis, our decision is in accordance with other district courts that have rejected challenges to the Pennsylvania Supreme Court's proportionality review process. Stevens v. Beard, 701 F. Supp.2d 671, 706-07 (W.D. Pa.2010); Lambert v. Beard, Docket No. 02-9034, 2007 WL 2173390, *51-52 (E.D. Pa. July 24, 2007) (rejecting claims that petitioner was denied a meaningful proportionality review because he was not given an opportunity to review and challenge the information relied on by the Pennsylvania Supreme Court, and because the database, data collection instruments, and methodology employed in the review process allegedly were "egregiously" flawed; petitioner presented no evidence that that Pennsylvania Supreme Court conducted its proportionality review in bad faith) (certificate of appealability denied); Rollins v. Horn, Docket No. 00-1288, 2005 WL 1806504, *39-40 (E.D. Pa. July 26, 2005) (denying petitioner's challenges to the procedure by which the Pennsylvania Supreme Court conducted its proportionality review because that court had examined the procedures in Commonwealth v. Gribble, [550 Pa. 62, 703 A.2d 426(1997)] and had found nothing arbitrary or capricious about them) (certificate of appealability denied); Kindler v. Horn, 291 F. Supp.2d 323, 351-53 (E.D. Pa.2003) (denying petitioner's claims that the Pennsylvania Supreme Court's proportionality review did not provide him with the meaningful appellate review in violation of the Eighth and Fourteenth Amendments) (certificate of appealability denied); Laird v. Horn, 159 F. Supp.2d 58, 124 (E.D. Pa.2001) (denying petitioner's challenge to proportionality review because there was no evidence that the Pennsylvania Supreme Court had undertaken its review in bad faith); Jermyn v. Horn, Docket No. 97-634, 1998 WL 754567 *52-54 (M.D. Pa. Oct. 27, 1998) (rejecting petitioner's due process and Eighth Amendment challenges to his proportionality review), aff'd 266 F.3d 257 (3d Cir.2001) (affirming summarily district court's denial of certain claims, including his challenge to proportionality review).
Because the state court reviewed Marinelli's case under procedures found not to be "arbitrary or capricious," the Court finds that there is no basis for federal review of this claim. Further, as previously discussed, where the substantive claim put forth by Marinelli is meritless, counsel's performance cannot be deficient based on a failure to advance meritless claims. Strickland, 466 U.S. at 691. Thus, the ineffectiveness claim is also denied. Claim XVIII
Petitioner's convictions and death sentence should be vacated because of the cumulative prejudicial effect of the errors described in this petition.
Petitioner's final claim is that the cumulative effect of all of the errors at trial entitle him to habeas relief. The Third Circuit has pronounced that "[i]ndividual errors that do not entitle a petitioner to relief may do so when combined, if cumulatively the prejudice resulting from them undermined the fundamental fairness of his trial and denied him his constitutional right to due process." Fahy v. Horn, 516 F.3d 169, 205 (3d Cir.2008) (quoting Albrecht v. Horn, 471 F.3d 435, 468 (3d Cir.2006)). See also Marshall v. Hendricks, 307 F.3d 36, 94 (3d Cir.2002) (finding that certain errors, harmless when viewed individually, may be so prejudicial when taken cumulatively as to warrant a new trial) (citing United States ex rel. Sullivan v. Cuyler, 631 F.2d 14, 17 (3d Cir.1980)). Cumulative errors will only be deemed not harmless where "they had a substantial and injurious effect or influence in determining the jury's verdict, which means that a habeas petitioner is not entitled to relief based on cumulative errors unless he can establish 'actual prejudice.' " Fahy, 516 F.3d at 205 (internal citation omitted); see Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). To demonstrate actual prejudice, Petitioner must show that the errors during his trial created more than a possibility of prejudice; he must show that the errors "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Murray v. Carrier, 477 U.S. 478, 494 (1986). Where weighty evidence of guilt is in the record, even in spite of all of the petitioner's alleged errors, the cumulative error standard has not been met. Fahy, 516 F.3d at 205.
As explained above, the overwhelming evidence of guilt presented by the Commonwealth forecloses Petitioner's argument in favor of cumulative error. Moreover, Marinelli has failed to demonstrate any such cumulative prejudicial effect. This Court has found all of Marinelli's claims relating to both the guilt phase and the sentencing phase to be meritless. Even considering cumulatively the single instance of harmless error identified by Marinelli, and recognized by the Court, it's overall effect is not so prejudicial to the fairness of the proceedings as to warrant a new trial. See generally Marshall, 307 F.3d at 94. Therefore, this claim will be denied.
V. CONCLUSION
Based on the foregoing, the Court will deny Marinelli's petition for writ of habeas corpus. 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 petition under 28 U.S.C. § 2254, the Court must make a determination as to whether a certificate of appealability should issue. 3d Cir. L.A.R. 22.2. A certificate of appealability should issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this burden a petitioner must show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484-83 (2000) (internal citations and quotations omitted). This Court concludes that a reasonable jurist could debate whether the Court properly resolved Petitioner's Petitioner's Confrontation Clause claim under Bruton v. United States, 391 U.S. 123 (1968) (Claim I). The certificate of appealability is denied in all other respects.
An appropriate Order accompanies this Memorandum Opinion.
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United States District Judge