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Geschwendt v. Ryan

argued: September 5, 1991.


On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 90-4043.

Stapleton, Greenberg and Aldisert, Circuit Judges.

Author: Aldisert


The major question for decision in this appeal by George Geschwendt from a denial of federal habeas corpus relief is whether he was deprived of liberty without due process of law in violation of the Fourteenth Amendment when he was convicted of first-degree murder by a Pennsylvania jury that was not given the option of finding him not guilty by reason of insanity. Secondary issues are whether Geschwendt exhausted this argument before the state court system, and whether his counsel's failure to raise the argument on direct appeal constituted ineffective assistance of counsel.

We hold that Geschwendt has exhausted his due process claim and that he was denied his due process rights under the Fourteenth Amendment. Accordingly, we will reverse the judgment of the district court and remand with instructions to enter an order granting the petition for habeas corpus and directing Geschwendt's release from custody unless the Commonwealth of Pennsylvania grants him a new trial within a reasonable period of time.

The district court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, following the district court's grant of a certificate of probable cause. The appeal was timely filed under Rule 4(a), F.R.A.P.


The facts surrounding the killing of five members of the Abt family and a family friend were not disputed at trial. Sometime prior to March 12, 1976, Geschwendt purchased a .22 caliber revolver, which he falsely reported stolen on the day of the purchase. On March 12, at approximately 8:30 a.m., he took the gun and ammunition, walked across the street to the Abt residence and broke into the house. Over the course of the next several hours, he shot and killed five members of the Abt family and a boyfriend of one of the Abt daughters as they returned from work or school. After each shooting, he dragged the body of the victim into the cellar and cleaned up all evidence of the killing. At approximately 6:30 p.m., when the telephone began to ring repeatedly, he left the Abt residence by the front door and returned to his home across the street by an indirect route.

When he arrived home, Geschwendt concealed the gun, the rubber gloves he had worn during the shootings and his blood-stained clothing in the saddle bags of his motorcycle. On the next day, he drove to the Delaware River, where he disposed of his shoes and the rubber gloves. He donated the clothing to Goodwill Industries after washing it to remove all visible evidence of blood. He threw the gun, the spent casings and unused ammunition into a creek.

Geschwendt subsequently confessed to the killings. At trial in 1976, his sole defense was insanity. The court instructed the jury that it could return only two possible verdicts -- guilty or not guilty -- even though defense counsel requested an instruction on a third possible verdict of not guilty by reason of insanity. Defense counsel argued that Pennsylvania law required such an instruction when a defense of insanity was raised.

Following his conviction on all six murder counts, Geschwendt appealed first to the Superior Court and then to the Pennsylvania Supreme Court, alleging five assignments of error. Both courts affirmed the trial court's judgments of sentence, with the Supreme Court being divided, 4-3. Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982). Geschwendt then filed a pro se habeas petition in federal court asserting the same five assignments of error. The magistrate judge appointed counsel.

On February 4, 1991, the magistrate judge issued a report recommending that the district court grant the petition for writ of habeas corpus "for failure of the trial court to charge the jury as to the possible verdict of not guilty by reason of insanity in violation of Petitioner's due process rights." Mag. Rpt. at 35; App. at 66A. On March 20, 1991, the district court rejected this recommendation and denied the petition for three reasons: (1) the record strongly suggests that Geschwendt has not exhausted his alternative verdict claim before the state court; (2) the trial judge's failure to charge on the alternative verdict did not violate Geschwendt's due process rights; and (3) even if the trial judge did err, the error was harmless. D.C. Mem. at 9-17; App. at 75A-83A. On April 4, 1991, the district court issued a certificate of probable cause, and this appeal followed.


Geschwendt argues that his due process rights were violated when the trial court rejected his request for a jury instruction on a third alternative verdict of not guilty by reason of insanity. The Commonwealth responds that this argument must fail because (1) Geschwendt has not exhausted the argument before the state court; (2) the trial court did not err because the alternative verdict instruction was not required by law at the time of trial; (3) even if an error did occur, it did not amount to a constitutional violation; and (4) even if a constitutional violation did occur, it was harmless error,

The determination that a habeas petitioner has not exhausted state remedies involves the application and interpretation of legal precepts, and thus receives plenary review. Schandelmeier v. Cunningham, 819 F.2d 52, 54 (3d Cir. 1986), cert. denied, 480 U.S. 938 (1987). Whether the trial court erred in failing to instruct the jury on a third alternative verdict also is a question of law subject to plenary review. Carter v. Rafferty, 826 F.2d 1299, 1304 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988). In a habeas proceeding, however, we do not consider whether the instruction was erroneous or undesirable, but whether the defective instruction "'so infected the entire trial that the resulting conviction violates due process.'" Polsky v. Patton, 890 F.2d 647, 650 (3d Cir. 1989) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)).


We are faced here with an appeal by an individual who was convicted by a state court jury in a high-profile, mass-murder case. In a case such as this, where it is difficult to muster any sympathy for the appellant, determining whether the state trial court protected his constitutional rights is an onerous responsibility that necessarily taxes the objectivity, if not the very integrity, of the federal judicial system in its obligation to process the Great Writ.

Federal judges are keenly aware that as we measure the contours of the Constitution, we do not engage in a popularity contest. Our role as ultimate guardians of the Bill of Rights is to insure that society, when prosecuting those who breach its rules of conduct, does not breach its own rules of procedure, which are enshrined in the Constitution. Our task in federal collateral review of state convictions, therefore, is not to ask whether the habeas petitioner has violated rules of social conduct, but only whether society has respected the rules it has established to guarantee fair trials.

Before we embark on this examination, we must consider the rule of comity that exists between the state and federal judicial systems. This rule generally requires a federal habeas petitioner to exhaust all constitutional claims in the state court system before proceeding to federal court. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 510 (1982). Here we must decide whether Geschwendt has exhausted his due process claim in the Pennsylvania courts.

Geschwendt argues that he was deprived of the protections of the due process clause when his jury was denied the option of considering three alternative verdicts at his murder trial: guilty, not guilty or not guilty by reason of insanity. Although the plurality opinion in Commonwealth v. Geschwendt, 500 Pa. at 135 n.8, 454 A.2d at 999 n.8, stated that the issue had not been raised on appeal, three of the justices addressed it in detail. See id. at 136-39, 454 A.2d at 1000-01 (Roberts, J., dissenting). In Bisaccia v. Attorney Gen. of State of N.J., 623 F.2d 307 (3d Cir.), cert. denied, 449 U.S. 1042 (1980), we suggested that where a petitioner claims to have raised a due process claim in the state system, and the state court majority opinion does not squarely address the petitioner's due process claim, the analysis in the dissenting opinion may be deemed a factor supporting the conclusion that the habeas claim was fairly presented to the state court. Id. at 311.

Although we are satisfied that exhaustion is present under the teachings of Bisaccia, we believe even more evidence of exhaustion exists here. First, after criticizing the dissent for addressing an issue not before the court, Justice Nix, writing for the plurality, proceeded to meet the very question: "Nor is [the purported denial of the third possible verdict of not guilty by reason of insanity] supported by the record when the charge is viewed as a whole." Commonwealth v. Geschwendt, 500 Pa. at 135 n.8, 454 A.2d at 999 n.8. Second, Geschwendt's brief before the Pennsylvania Supreme Court evidently raised the issue: "'Certainly if the jury was not informed of this permissible verdict, a full and informed decision could not be made. This is so because consideration would only be given to two of three permissible verdicts.'" Id. at 139 & n.4, 454 A.2d at 1001 & n.4 (Roberts, J., dissenting) (quoting Appellant's Brief at 26). We conclude, therefore, that Geschwendt has exhausted his state remedies.


We now turn to the principal contention presented in this appeal that due process guaranteed Geschwendt the fair opportunity to present his insanity defense to this Pennsylvania jury, see United States ex rel. Smith v. Baldi, 192 F.2d 540, 544 (3d Cir. 1951), aff'd, 344 U.S. 561 (1953), and that this opportunity was foreclosed when the trial court refused to instruct the jury that it could return a verdict of not guilty by reason of insanity. Geschwendt makes a classic procedural due process argument that he was deprived of both a quality and quantum of liberty in the sense of freedom from physical restraint because his jury was not permitted to make an "informed judgment" regarding the possibility of reaching a verdict of not guilty by reason of insanity. He argues that had the jury rendered such a verdict, he would have been confined to a mental institution, rather than to a prison, and his period of confinement under Pennsylvania law would have been for "so long as [he] shall continue to be of unsound mind," rather than for life. See 19 Pa. Stat. Ann. § 1351 (Purdon 1964).

Because this is the issue for decision, it is important to emphasize what is not. This is not a case controlled by the holding in Schad v. Arizona, U.S. , 111 S. Ct. 2491 (1991), as vigorously urged by the dissent. We do not consider that holding as authority to excuse the trial court's refusal to instruct the jury on the possible verdict of not guilty by reason of insanity. In Schad, the Court held that the refusal to charge on the lesser-included offense of robbery was harmless error. Applying Beck v. Alabama, 447 U.S. 625 (1980), the Court determined that the fact "that the jury's 'third option' was second-degree murder rather than robbery [did] not diminish the reliability of the jury's capital murder verdict." U.S. at , 111 S. Ct. at 2505. But the court explained:

That is not to suggest that Beck would be satisfied by instructing the jury on just any lesser included offense, even one without any support in the evidence. Cf. Roberts v. Louisiana, 428 U.S. 325, 334-35 (1976) (plurality opinion). In the present case, however, petitioner concedes that the evidence would have supported a second-degree murder conviction, Brief for Petitioner 18-19, and that is adequate to indicate that the verdict of capital murder represented no impermissible choice.

Id. (emphasis added). By "no impermissible choice," the Court meant that the alternative instruction in that case was supported by the evidence and thus represented a viable option for the jury. In the present case, however, the lesser-included offenses were third-degree murder and voluntary manslaughter. Under Pennsylvania law in effect at the time of Geschwendt's trial, a conviction of either of these offenses would have required the jury to find that Geschwendt's acts were not "wilful, deliberate, intentional and premeditated." App. at 101A.

Such a finding would have been in stark contrast with the uncontroverted evidence, as the dissent ably points out: "This was a cold-blooded calculated mass homicide carefully planned by a vicious criminal who subsequently attempted to cover-up his heinous acts." Dissent Typescript at 20-21. Leaving aside for a moment the question of Geschwendt's sanity, these acts were wilful, deliberate, intentional and premeditated, and the jury could not have found otherwise. Because the charges on third-degree murder and voluntary manslaughter were not supported by the evidence, this case is outside the holding of Schad.

Our conclusion is further supported by precedent of this court. In Vujosevic v. Rafferty, 844 F.2d 1023, 1027 (3d Cir. 1988), we determined that the district court had erred in failing to instruct the jury on the lesser-included offense of aggravated assault, which was supported by the record. Engaging in a harmless error analysis, we held that "the instruction on simple manslaughter was not a constitutionally adequate substitute for an instruction on aggravated assault" because it "did not necessarily offer the jury a rational compromise between aggravated manslaughter and acquittal; only an aggravated assault charge could do that." Id. at 1028.

Accordingly, we believe that the trial court's instructions on the lesser-included offenses of third-degree murder and voluntary manslaughter in Geschwendt's case were not viable alternatives on this record, and that these instructions were not a constitutionally adequate substitute for the instruction on the third alternative verdict of not guilty by reason of insanity.

Moreover, we do not have a claim that in 1976 the court was required to instruct the jury as to the consequences of a verdict of not guilty by reason of insanity. We also do not have a claim that Pennsylvania law is constitutionally infirm because it does not permit an insanity defense. The Commonwealth of Pennsylvania recognizes this defense and has done so since it was one of the original thirteen colonies. See Commonwealth v. Smith, 374 Pa. 220, 226-27, 97 A.2d 25, 29 (1953) (restating rule that a person has a right not to pay the penalty for an action if his or her mental condition does not satisfy the legal test for sanity); Commonwealth ex rel. Smith v. Ashe, 364 Pa. 93, 106-07, 71 A.2d 107, 115, cert. denied, 340 U.S. 812 (1950) (recognizing that an individual's insanity at the time of an offense requires an acquittal). Thus, Chief Justice Rehnquist's casual observation in Ake v. Oklahoma, 470 U.S. 68, 91 (1985) (Rehnquist J., dissenting), that "it is highly doubtful that due process requires a State to make available an insanity defense to a criminal defendant," is not applicable here.

What is presented for our consideration is a fundamental concept, properly expressed in the teachings of Hicks v. Oklahoma, 447 U.S. 343 (1980):

Where . . . a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant's interest in the exercise of that discretion is merely a matter of state procedural law. That defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State. In this case Oklahoma denied the petitioner the jury sentence to which he was entitled under state law, simply on the frail conjecture that a jury might have imposed a sentence equally as harsh as that mandated by the invalid habitual offender provision. Such an arbitrary disregard of the petitioner's right to liberty is a denial of due process of law.

Id. at 346 (citations omitted) (footnote omitted). This court specifically has recognized that when a state, such as Pennsylvania, has created an insanity defense, "due process guarantees all defendants fair opportunity to present the defense." United States ex rel. Smith v. Baldi, 192 F.2d at 544; see also Thomas v. Cunningham, 313 F.2d 934, 938 & n.7 (4th Cir. 1963) ("Procedural due process requires that a state shall afford [a defendant] adequate opportunity to raise [an insanity defense].").

As stated before, Geschwendt alleges that the trial court's denial of an opportunity for confinement to a mental institution for "so long as [he] shall continue to be of unsound mind," instead of to a prison for life, deprived him of both a quality and quantity of liberty. "To deny [a defendant] the possibility of a lesser restraint of liberty because of a practice which permits arbitrary trial court activity is offensive to . . . settled concepts of due process." United States ex rel. Matthews v. Johnson, 503 F.2d 339, 345 (3d Cir. 1974) (in banc), cert. denied, 420 U.S. 952 (1975).

Involved here are those precepts of constitutional law that concern "the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states." Palko v. Connecticut, 302 U.S. 319, 327 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969). Freedom from physical restraint without due process of law is among those "'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,'" Powell v. Alabama, 287 U.S. 45, 67 (1932) (quoting Herbert v. Louisiana, 272 U.S. 312, 316 (1926)); is "basic to our system of jurisprudence," In re Oliver, 333 U.S. 257, 273 (1948); and is "essential to a fair trial." Gideon v. Wainwright, 372 U.S. 335, 342-44 (1963); see Pointer v. Texas, 380 U.S. 400, 403 (1965).

With these revered axioms of procedural due process as a jurisprudential backdrop, we now turn to an examination of the substantive Pennsylvania law governing the trial of criminal cases.


At the time of Geschwendt's trial in 1976, two Pennsylvania statutes required that a jury acquitting a defendant on the basis of insanity state the reason for such acquittal in the verdict. First and foremost, the Act of March 31, 1860, P.L. 427, § 66, as amended, provided:

In every case in which it shall be given in evidence upon the trial of any person charged with any crime or misdemeanor, that such person was insane at the time of the commission of such offence, and he shall be acquitted, the jury shall be required to and specially whether such person was insane at the time of the commission of such offence, and to declare whether he was acquitted by them on the ground of such insanity; and if they shall so find and declare, the court before whom the trial is had shall order the cost of prosecution to be paid by the county, and shall have power to order him to be kept in strict custody, in such place and in such manner as to the said court shall seem fit, at the expense of the county in which the trial is had, so long as such person shall continue to be of unsound mind.

19 Pa. Stat. Ann. § 1351 (Purdon 1964) (emphasis added) [hereinafter "Act of 1860"], repealed by Act of April 28, 1978, P.L. 202, § 2(a)[377], 42 Pa. Cons. Stat. § 20002(a)[377] (Supp. 1982) (effective June 27, 1980). The Mental Health and Mental Retardation Act of 1966*fn1 also provided:

(a) Whenever any person charged with any crime is acquitted on the ground of insanity or having been insane at the time he committed the crime, the jury or the court as the case may be, shall state such reason for acquittal in its verdict.

(b) In such event, the court may direct the Attorney for the Commonwealth to act as petitioner to initiate commitment proceedings under section 406.

50 Pa. Stat. Ann. § 4413 (Purdon 1969), repealed in part by Act of July 9, 1976, P.L. 817, § 502, 50 Pa. Stat. Ann. § 7502 (Purdon 1976).

After presenting insanity as his sole defense, Geschwendt's trial counsel brought the criminal procedure requirements of the Act of 1860, as amended, to the trial court's attention and asked the court to instruct the jury on ...

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