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JOHNSTON v. LOVE

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


July 18, 1996

NORMAN L. JOHNSTON
v.
WILLIAM J. LOVE, et al

The opinion of the court was delivered by: POLLAK

OPINION

 Pollak, J.

 July 18, 1996

 Now before the court is a Report and Recommendation (R&R) by Magistrate Judge Rueter. The R&R recommends that this court deny a petition for habeas corpus filed by Norman L. Johnston, an inmate at the State Correctional Institution in Huntingdon, Pennsylvania. Mr. Johnston, who is proceeding pro se, has filed objections to the R&R. In lieu of filing a brief, the Commonwealth has filed a copy of the brief it has filed before the Third Circuit Court of Appeals in a related case, David Johnston v. James Price, No. 94-4314; the latter case is an appeal of the denial of the petition for habeas corpus of Norman Johnston's brother and codefendant, David K. Johnston.

 I. Background

 I will begin with a brief recitation of the factual and procedural background of this case. *fn1" The evidence presented at Johnston's trial indicated that a group including Norman Johnston, his brothers David Johnston and Bruce Johnston, Sr., Richard Mitchell, Leslie Dale, Roy Myers, and James Griffen operated a burglary ring in Chester County, Pennsylvania. The group also included a number of members who were teenagers; these members were apparently referred to as the "Kiddie Gang."

  In the summer of 1978, one of the members of the "Kiddie Gang," Bruce Johnston, Jr., began to cooperate with law enforcement authorities. He eventually testified before a federal grand jury investigation, which then subpoenaed other members of the "Kiddie Gang." In order to prevent their crimes from coming to light, the three Johnston brothers and Richard Mitchell apparently decided to kill the members of the "Kiddie Gang." In August 1978, they killed and buried three members of that group, James Johnston, Dwayne Lincoln, and Wayne Sampson. Thereafter, James Sampson, Wayne Sampson's older brother, who had become suspicious at his brother's disappearance, was also killed. (David and Norman Johnston were later charged with, and acquitted of, this murder; Bruce Johnston, Sr. was eventually found guilty of this crime.) With the assistance of Mitchell and Dale, David and Norman Johnston then attempted to murder Bruce Johnston, Jr. As a result of this incident, they injured Bruce Johnston, Jr., and killed his girlfriend, Robin Miller.

 Law enforcement officials then arrested Dale, Mitchell, Griffen, and other gang members; all agreed to cooperate as witnesses for the Commonwealth. On January 29, 1979, David and Norman Johnston were each charged with five counts of murder and one count each of criminal conspiracy, attempted murder, aggravated assault, and a weapons offense. Bruce Johnston, Sr. was charged with the same crimes, and one additional count of murder. As a result of this additional charge, the trial of Bruce Johnston, Sr., was severed from (and followed) the trial of his brothers.

 David and Norman Johnston were tried together before Judge Sugerman of the Chester County Court of Common Pleas. Their trial began on January 29, 1980; on March 18, they were found guilty of four of the counts of murder and all of the related charges. (As already noted, they were acquitted of the murder of Wayne Sampson.) Norman Johnston was sentenced to four consecutive life sentences and a further twelve and one-half to twenty-five years, to be served consecutive to the life sentences.

 Norman Johnston appealed his conviction. Before the disposition of that appeal, he filed a motion seeking a new trial on the basis of after-discovered evidence. The Superior Court then remanded the case to Judge Sugerman for a hearing on this evidence. Judge Sugerman conducted that hearing on May 26 and 27 and June 10, 1987. On May 9, 1989, Judge Sugerman issued a lengthy (343-page) opinion finding that a new trial was not necessary. See Commonwealth v. Norman L. Johnston, No. 0037779, slip op. (Court of Common Pleas, Chester County, May 9, 1989) (hereinafter "Opinion of Judge Sugerman"). Johnston appealed this ruling; his appeal was consolidated with his original direct appeal, and, on May 31, 1990, both appeals were denied. On May 14, 1991, the Pennsylvania Supreme Court denied Johnston's petition for allowance of appeal. On June 14, 1995, Johnston filed the present petition for habeas corpus.

 II. Johnston's Petition

 Johnston's habeas corpus petition, which is brought under 28 U.S.C. § 2254, asserts five claims:

 

(1) that he was denied his right to a fair trial because the Commonwealth failed to disclose a number of promises made to or benefits conferred upon James Griffen, a witness for the Commonwealth;

 

(2) that the trial court erred in excluding the testimony of Graham Andes, Esq., testimony which Johnston asserts would have called into question the credibility of Richard Mitchell, another witness for the Commonwealth;

 

(3) that the trial court erred in admitting into evidence information as to prior criminal activity by Mr. Johnston;

 

(4) that the trial judge was biased against him; and

 

(5) that his trial counsel was ineffective in a number of respects.

 Johnston's petition was referred to Magistrate Judge Rueter. Judge Rueter prepared a 59-page R&R, to which Johnston has filed objections. Judge Rueter's R&R is learned and comprehensive, and reveals an intimate familiarity with the complex record in this case. I also note that Johnston's objections demonstrate a very high quality of advocacy, especially given that he is appearing pro se. I will now consider the R&R, together with Johnston's objections. *fn2"

 A. The Commonwealth's Failure to Disclose Promises To or Benefits Conferred Upon James Griffen

 James Griffen *fn3" was one of several important witnesses at the petitioner's trial who had at some point been confederates of the Johnstons. Griffen's testimony was that he had overheard the three Johnston brothers planning to bury "some snitches" - apparently referring to the victims of the triple murder - and that he had driven with Norman Johnston and others to the hardware store to buy shovels and lime for use in the burial. Griffen also testified that he had overheard Norman and David Johnston discussing the attack on Bruce Johnston, Jr. and Robin Miller, in terms that clearly implicated them. R&R at 19. Griffen was an important witness for the Commonwealth; indeed, Johnston points out that the Commonwealth's opening described a conversation to which Griffen was the only witness as the "crux" of the case, Tr., 2/8/80 at 109-110, and that the Commonwealth's closing emphasized Griffen's credibility as a witness. Tr., 3/14/80 at 5284.

 The petitioner claims that Griffen received three benefits in exchange for his testimony, all of which should have been disclosed as exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). These were: (1) an alleged plea agreement under which the Commonwealth agreed to dismiss a pending criminal charge against Griffen and to charge him with no further crimes; (2) an informal use immunity agreement that Griffen concluded with the United States Attorney's Office that prevented the use of Griffen's testimony at the Johnston trial against Griffen in a later federal proceeding, and (3) the Commonwealth's release of Griffen on favorable bail conditions in exchange for his testimony. I will address them in that order.

 1. Alleged Exchange of Leniency for Testimony. Johnston claims that the Commonwealth had an arrangement with Griffen under which a pending charge of conspiracy to commit criminal homicide would be dropped. Johnston asserts that the alleged agreement also provided that no charges would be brought against Griffen for some 150 crimes, generally involving theft of property, to which Griffen confessed in pretrial interviews and at trial.

 As Judge Rueter notes in his R&R, Judge Sugerman made a finding of fact that there was no such agreement, either as to the conspiracy charge or as to the additional charges. R&R at 23, 24, 26. By statute, this court is bound to defer to that finding unless it can be established that one of the statutory exceptions applies. See 28 U.S.C. § 2254(d). Judge Rueter's R&R finds that Judge Sugerman's findings were adequately supported by the record, R&R at 24, 26; Johnston does not object to this finding.

 Johnston's objections assert, however, that the legal standard applied by Judge Sugerman differs from the federal standard. Under the federal standard, as Johnston correctly observes, a bargain with a witness need not take the form of a formal promise or agreement; a bargain must be disclosed even if it is only an understanding or an informal assurance by the prosecution. See Haber v. Wainwright, 756 F.2d 1520, 1524 (11th Cir. 1985) (finding that the prosecution is required to disclose the "advice" of a government attorney to a witness that the witness would not be prosecuted).

 If Judge Sugerman applied a different legal standard, his factual findings would not be binding on this court. Judge Sugerman's findings are consistent, however, with the federal standard. His opinion states that "there was no arrangement of any kind - no promise, offer, plea bargain or otherwise - between the Commonwealth and the witness Griffen." Opinion of Judge Sugerman at 178. This language would appear to encompass both formal and informal agreements or assurances. Judge Sugerman's findings are adequately supported by the record; thus, I will defer to his finding that there was no agreement of any sort under which the Commonwealth would either drop charges pending against Griffen or abstain from bringing any new charges. *fn4"

 2. Federal Use Immunity Agreement. The second Brady issue raised by Johnston is the prosecution's failure to disclose to him the fact that Griffen was the beneficiary of a federal use immunity agreement. *fn5" This agreement was concluded in 1979 between Griffen and federal officials (under the leadership of Assistant U.S. Attorney Douglas Richardson), apparently in anticipation of Griffen's testimony at the federal trial of one Thomas Rebert. (Although the record does not identify Rebert with precision, it appears that his prosecution was related to theft and transportation of stolen goods by the Johnstons and their associates, but not to the murder charges. *fn6" ) The immunity agreement was not limited to testimony at that trial, however; it encompassed testimony relating to a total of nineteen persons - including Norman Johnston - and specifically mentioned testimony relating to the murder of federal witnesses. The agreement provided that no testimony provided by Griffen would be used "directly or indirectly against him in any federal prosecution." The agreement also stated, however, that it "was not intended to, and does not, in any way influence or limit the prosecutive [sic] discretion of any state or local authority." Exhibit P-8 to Plaintiff's Petition for Habeas Corpus. *fn7"

 Had the state prosecutors known of this agreement, they would have been obligated to disclose its existence to Johnston under Brady. The agreement prevented Griffen's testimony from being used against him in a federal prosecution, and hence had some impeachment value. See United States v. Pflaumer, 774 F.2d 1224, 1226 (3rd Cir. 1985). At the state-court hearing on Johnston's motion for a new trial, Judge Sugerman found that the Commonwealth's prosecutorial team was not in fact aware of this agreement. Opinion of Judge Sugerman at 205. Johnston has not contested this finding.

 Johnston has, however, argued that the Commonwealth had constructive knowledge of the existence of this agreement. In Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972), the Court found that, for purposes of establishing a Brady violation, government officials who did not have actual knowledge of certain information can nevertheless be deemed to have had constructive knowledge of it in some circumstances. See id. at 154. In Giglio, a witness had been told by an Assistant U.S. Attorney that he would be given immunity in exchange for his testimony; the prosecution was then conducted by a different member of the same office, who was not aware of this promise, and who therefore did not disclose it to the defense. The Giglio court found, citing agency principles, that "the prosecutor's office is an entity" and that "[a] promise made by one attorney must be attributed, for these purposes, to the Government." See Giglio, 405 U.S. at 154. Giglio's constructive-knowledge rule has been applied to situations in which the prosecutorial team included both federal and state officials. See United States v. Antone, 603 F.2d 566, 569 (5th Cir. 1979) (finding that knowledge of a state official functioning as part of a joint federal-state investigation could be imputed to federal officials). The Third Circuit has specifically approved Antone's holding. See United States v. Perdomo, 929 F.2d 967, 970 (3rd Cir. 1991). *fn8"

 In order to apply Giglio's agency-law methodology, it is necessary to identify the relevant entity within which officials are deemed to have constructive knowledge of information known to one another. In Giglio, the relevant entity was apparently the federal prosecutorial team. In Antone, it was the federal investigative and prosecutorial team, of which a state official was acting as an agent. See 603 F.2d at 570. If the relevant entity in the present case is thought to be the state prosecutorial team, then Giglio would not appear dispositive, as it seems clear that federal officials were not acting as agents of the state prosecutorial team in negotiating the immunity agreement. *fn9"

 In some circumstances, however, it seems that a court, in applying Giglio, must impute knowledge within a hybrid entity that is not, strictly speaking, either a state or a federal prosecutorial team. Antone emphasized that in cases in which federal and state investigations overlap, and the two groups of officials "have cooperated intimately from the outset of an investigation," the courts must conduct a "case-by-case analysis of the extent of interaction and cooperation between the two governments." 603 F.2d at 570. To assume that a prosecutorial undertaking is always within the exclusive control of either state or federal officials would ignore the practical reality of federal-state cooperation. At times, federal and state officials may cooperate closely enough to be functionally a single unit, but divide their responsibilities in such a way that each assumes the lead on certain matters, so that neither group controls the entire effort.

 In the present case, Judge Rueter's R&R finds, and I agree, that the record supports the conclusion that "there was a joint federal-state effort to investigate and prosecute the Johnston gang for the murders." R&R at 33 n.12. This joint effort can be characterized either (1) as a joint effort to prosecute the Johnstons and their associates for murder, or (2) as a joint effort to prosecute the Johnstons for all of their criminal activities. Under the first characterization, imputation of knowledge would not be appropriate. As I have already observed, the immunity agreement was concluded in contemplation of the Rebert prosecution, a prosecution which apparently was related to the Johnstons' alleged theft and transportation of stolen goods, but not to the murder charges. *fn10" Under the first characterization of the joint federal-state effort, then, federal officials would not have been acting as agents of that effort when they concluded an immunity agreement with Griffen. *fn11"

 Turning to the second characterization of the joint federal-state effort - as having been directed at all of the criminal activities of the Johnstons and their associates - I will now consider whether there existed such an effort, and whether this effort was sufficiently closely integrated to permit imputation of knowledge under Giglio and Antone. There is some evidence that there was close federal-state cooperation in this area. Federal and state officials apparently had an agreement to share information related to the Johnston cases. See Testimony of David Richter, 6/10/87, at 130. This agreement appears not to have been limited to the murder prosecutions. Indeed, at the evidentiary hearing before Judge Sugerman, AUSA Richardson (who had an important role in the federal component of the Johnston investigation) expressed some surprise that the state prosecutors were unaware of the immunity deal with Griffen, because of the nature of the information flow between federal and state officials. See Tr., 6/10/87, at 109. Richardson also testified that he did not recall formally notifying state officials of the existence of the immunity agreement, and stated that this was presumably because his "thinking at the time" was that "the instrument related to federal prosecution, and did not purport to bind or to limit state prosecutions." See id. at 106-07.

 It is also noteworthy that federal officials apparently considered it appropriate to meet with their state counterparts to discuss their intention to grant immunity to Griffen, even though the immunity was to be granted in anticipation of a prosecution unrelated to the murder charges. At that meeting, which apparently occurred in mid-1979, Assistant District Attorney Dolores Troiani, a member of the Chester County team that prosecuted the Johnstons, specifically objected to any immunity arrangement that encompassed the murder charges. See Tr., 5/27/87, at 115. Federal officials assured Troiani that no such immunity deal would be struck. See id. at 119. *fn12" The fact that federal officials consulted with their state counterparts, and expressed a willingness to defer to their wishes, suggests that there was some cooperation between federal and state officials on the investigation as a whole. *fn13"

 Because there appears to have been little inquiry into these topics in the state proceedings, there is little other material in the record addressing the nature of the federal-state relationship. However, the investigation into the activities of the Johnstons and their associates involved at least nineteen defendants (the number listed in the federal immunity agreement) and a wide range of types of crimes, from interstate transportation of stolen goods to narcotics distribution. Although it seems possible that federal and state officials could have cooperated closely throughout such a large and diverse investigation, it is unlikely. Moreover, the principal target of the Rebert prosecution appears to have been interstate transportation of stolen goods. Although a county district attorney's office could be expected to have an interest in this subject, that interest would seem unlikely to rise to the level of full-fledged partnership.

 It therefore seems improbable that the appropriate unit of analysis for purposes of Giglio is the joint federal-state investigation into all of the criminal activities of the Johnstons and their associates. Nevertheless, I find that the present record does not permit me completely to foreclose this possibility. Thus, I will proceed to consider the likelihood that the defense's ignorance of the federal use immunity agreement would have changed the result of Johnston's trial. Because the Supreme Court has found that such an analysis must consider the impact of undisclosed evidence "collectively, not item-by-item," Kyles v. Whitley, 514 U.S. 419, 131 L. Ed. 2d 490, 115 S. Ct. 1555, 1567 (1995), I will defer this analysis until I have considered the circumstances of the Commonwealth's release of Griffen on bail.

 3. Conditions of Griffen's Release on Bail. Before his cooperation with the authorities began, Griffen was arrested and held in prison in Florida as a result of burglary charges pending against him in Pike County, Pennsylvania. While Griffen was in prison in Florida, the Chester County District Attorney's Office filed a complaint charging him with conspiracy to commit criminal homicide (a complaint based on Griffen's involvement in the murders for which the Johnstons were eventually prosecuted). Griffen was then transferred to Pennsylvania, first to the Chester County Prison, and then to the Lancaster County Prison; his bail was set at $ 50,000. In April, 1979, the Commonwealth filed a motion to reduce Griffen's bail to $ 1.00, and Griffen was released. As a condition of his release, Griffen was required to live in lodging designated or approved by the District Attorney's Office, to work at a job designated or approved by that office, and to report to local officials a total of three times a week. He was also barred from telling anyone of his new location, speaking about his involvement in the Johnston cases, meeting with friends or relatives without prior approval, making any collect calls, or corresponding with anyone except through local officials. Griffen was also provided with $ 300 for his living expenses. R&R at 27-28.

 Johnston asserts that the reduction of bail was a quid pro quo for Griffen's agreement to testify, and that this quid pro quo should have been disclosed. Judge Rueter's R&R finds that, on the contrary, Griffen's release was intended to protect Griffen. Griffen had apparently been receiving threats from the Johnston brothers. Although the Johnstons were in a different prison, state officials seem to have believed that Griffen's life might still be in danger, especially because it was thought that the Johnstons had killed other witnesses. Testimony of Dolores Troiani, 5/27/87, at 135-37. Judge Rueter's R&R finds, and I agree, that Griffen's release was not a quid pro quo for testimony.

 Judge Rueter does, however, conclude that Griffen's release from incarceration at the request of the Commonwealth and his receipt of $ 300 should have been disclosed to Johnston's defense as potential impeachment material. R&R at 28-29; see also U.S. v. Thornton, 1 F.3d 149, 158 (3rd Cir. 1993) (holding that the government was required to disclose payments made to prosecution witnesses). I agree with Judge Rueter's findings, and would add that the general terms of Griffen's release on bail - for instance, the fact that the release agreement suggested that state officials might supply Griffen with housing and a job - should also have been disclosed to the defense.

 I will now consider whether disclosure to Johnston's counsel of the terms of Griffen's release on bail or of Griffen's use immunity agreement with federal officials could have changed the outcome of Johnston's trial. Failure to disclose exculpatory evidence only rises to the level of constitutional error "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles, 115 S. Ct. at 1565 (quoting United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985)). As already noted, Kyles requires that this analysis consider the impact of undisclosed evidence "collectively, not item-by-item." 115 S. Ct. at 1567.

 The undisclosed evidence at issue in this case, although somewhat troubling, is not of such a character as to create a reasonable probability that, had it been disclosed, the result of Johnston's trial would have been different. Both items of undisclosed evidence would have been of fairly small value in impeaching Griffen's testimony. To begin with the conditions of Griffen's release on bail, I agree with Judge Rueter's finding that Griffen was released for his own protection, and that the conditions of his release were essentially analogous to those imposed on participants in the federal witness protection program. (Indeed, state officials attempted to place Griffen in that program, and later succeeded in securing such a placement.) R&R at 28-31. Johnston's counsel presumably could not have used the circumstances of Griffen's release on bail to impeach Griffen as a witness without revealing that Griffen was released to protect him from being killed by the Johnston brothers. See United States v. Adams, 785 F.2d 917, 921 (11th Cir.), cert. denied, 479 U.S. 1009, 93 L. Ed. 2d 706, 107 S. Ct. 650 (1986). As Judge Rueter observes, the defense knew that Griffen was in the federal witness protection program when he testified, but chose not to cross-examine him about that fact. R&R at 31.

 Turning to the federal use immunity agreement, and assuming arguendo that knowledge of this agreement can be imputed to state officials, I find that this agreement would also have been of relatively small impeachment value. Use immunity only impedes, and does not preclude, a subsequent prosecution. Thus, it has less impeachment value than do more direct benefits that the prosecution may confer upon a witness, such as promises of leniency. See United States v. Pflaumer, 774 F.2d 1224, 1230 (3rd Cir. 1985). Moreover, this particular immunity agreement did not give Griffen any protection from the use of his testimony in a state-court prosecution. The agreement would still have been of some use in impeaching Griffen's testimony, both because it protected Griffen from the use of his testimony in a federal prosecution, and because it might have indicated to the jury that Griffen was, generally speaking, allied with the prosecution.

 I note, however, that the defense was already able to argue to the jury that Griffen was an ally of the prosecution. The defense established that Griffen had admitted to about a hundred and twenty-five thefts for which he had never been charged. Testimony of James Griffen, 2/18/80, at 1554-56. In his closing, Johnston's attorney observed that Griffen had not been charged for these thefts after almost two years, and asserted that Griffen must have thought to himself as he testified: "I better help the Commonwealth or I'm going to go away for a long time." Transcript, 3/13/1980, at 5162-63. Thus, although the federal immunity agreement represented an additional increment of impeachment evidence, its marginal value would not have been large. Judge Rueter also observes that the Commonwealth presented many other witnesses, whose testimony was quite incriminating. R&R at 30. I therefore conclude that there is not a reasonable probability that the small margin of impeachment provided by the federal use immunity agreement would have altered the result of the petitioner's trial.

 B. Testimony of Graham Andes

 The second basis for relief asserted in Johnston's petition for habeas corpus is that the trial court erred in excluding the testimony of Graham Andes, testimony which Johnston asserts would have called into question the credibility of Richard Mitchell, a witness for the Commonwealth. At the petitioner's trial, Mitchell testified that he had witnessed the petitioner's murder of James Sampson. Mitchell also testified that he had overheard conversations in which Norman and David Johnston discussed the attack on Bruce Johnston, Jr. and Robin Miller.

 Johnston asserts that Andes had been Mitchell's lawyer in 1975, and that Andes would have testified that Mitchell, seeking favorable treatment from the authorities, had told Andes that Bruce and Norman Johnston had told Mitchell that they had killed a person named Kenny Howell. Mr. Howell, it later emerged, was alive at the time that Mitchell's statement was made. Johnston asserts that Andes' testimony would have demonstrated that Mitchell had a general practice of testifying falsely that the Johnston brothers had committed murder in order to secure favorable treatment for himself.

 Judge Sugerman excluded this evidence; Johnston argues that this ruling was incorrect. I will not address that question, however, because I agree with Judge Rueter's conclusion that, even supposing that Judge Sugerman's ruling was erroneous, Johnston cannot demonstrate that it infringed his constitutional rights. Andes' testimony was of limited value in impeaching Mitchell's credibility, because it was susceptible to at least two interpretations: that Mitchell had lied about the Johnstons' discussion of Howell, and that it was the Johnstons who had lied, and that Mitchell's report of what he had heard was correct. *fn14" As Judge Rueter observes, a mistaken evidentiary ruling will only rise to the level of constitutional error if that ruling is arbitrary. Washington v. Texas, 388 U.S. 14, 16-17, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967). I do not find that Judge Sugerman's ruling was arbitrary, given the ambiguous nature of Andes' testimony and the fact that it was to be introduced on the collateral question of Mitchell's credibility.

 C. Norman Johnston's Prior Bad Acts

 Johnston asserts that Judge Sugerman's rulings admitting considerable evidence of Johnston's past criminal activity were arbitrary and deprived him of his right to a fair trial. There was a considerable amount of evidence of Johnston's past criminal activity admitted at his trial. This included, inter alia, evidence that Johnston had fled following his indictment by a federal grand jury for obstruction of justice, evidence that he had repeatedly sold stolen goods to two persons who testified as to those transactions, and evidence that Johnston had discussed escaping from prison with a fellow inmate.

 Judge Rueter's R&R finds that this evidence was all properly admitted, R&R at 46, and I agree. The theory of the prosecution was that Johnston and his brother committed the murders with which they were charged in order to prevent a federal investigation from revealing the thefts in which they had been involved. It was therefore appropriate for the prosecution to introduce evidence that Johnston had sold stolen goods, as this demonstrated the extent of the crimes that Johnston wished to conceal. Judge Sugerman also gave a cautionary instruction to the jury directing them not to convict Johnston of uncharged conduct. R&R at 46.

 The federal obstruction of justice charge related to Johnston's alleged intimidation of witnesses associated with the federal investigation; Johnston's flight from that charge would therefore demonstrate consciousness of guilt of the underlying crime. See United States v. Bamberger, 456 F.2d 1119, 1126 (3rd Cir.), cert. denied, 413 U.S. 919, 37 L. Ed. 2d 1040, 93 S. Ct. 3067 (1973). Finally, the evidence that Johnston had considered escaping from prison before his trial was admissible as evidence of his consciousness of guilt of the underlying charges.

 D. Bias of the Trial Judge

 One of the Commonwealth's witnesses was Richard Falasco, a prison inmate. Falasco testified that Johnston's attorney, Lawrence Goldberg, had been present (although not necessarily within earshot) when Goldberg's assistant had sought to induce Falasco to testify falsely. According to Goldberg's testimony at a 1982 post-trial evidentiary proceeding before Judge Sugerman, Judge Sugerman stared at Goldberg during Falasco's testimony for ten to fifteen seconds with his glasses lowered and a look of "astonishment" on his face. Testimony of Lawrence Goldberg, 7/7/82, at 6-7. Johnston contends that the judge's stare discomfited Goldberg and suggested to the jury that the judge believed that Goldberg had misbehaved, and so prejudiced Johnston's right to a fair trial. Judge Rueter's R&R finds that Judge Sugerman's stare was not sufficiently indicative of bias to violate the petitioner's due process rights. I agree with this finding, and adopt Judge Rueter's reasoning on this point.

 E. Ineffectiveness of Trial Counsel

 Johnston makes five claims of ineffective assistance of counsel. In order to establish that his counsel was ineffective, Johnston must show (1) that his attorney's representation "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694.

 1. Failure to Seek Mistrial. Johnston's first claim of ineffective assistance of counsel is based upon the failure of his attorney, Lawrence Goldberg, to seek a mistrial or a cautionary instruction after the incident, described above, in which Judge Sugerman stared at his attorney. I agree with and adopt Judge Rueter's analysis of this claim. See R&R at 50-52. In particular, I do not find that there is a reasonable probability that a request for a mistrial would have been granted, or that, had Judge Sugerman delivered a cautionary instruction, the result of the proceeding would have been different.

 2. Failure to Seek Permission to Testify. Johnston's second claim, based upon the same incident, is that Goldberg should have sought permission to testify in order to rebut Falasco's charges that Goldberg had been involved in an attempt to induce Falasco to commit perjury. Judge Rueter notes: (1) that Falasco had not directly accused Goldberg of involvement, reducing the need for Goldberg to testify, and (2) that Goldberg had consulted with counsel for Johnston's codefendant, and that the two agreed that Goldberg's testimony would only remind the jury of the incident. Judge Rueter therefore finds that Goldberg's decision was reasonable. R&R at 52-53. I agree.

  3. Failure to Object to Mitchell's Testimony that Johnston Had Put a Contract on Mitchell's Life. Johnston's third claim is that Goldberg should have objected to Mitchell's testimony that Johnston had a "contract" on Mitchell's life. I concur with Judge Rueter's finding that such an objection would have in all likelihood been futile. In his cross-examination of Mitchell, Goldberg had sought to show that there was evidence that Mitchell had committed the murders himself, Tr., 2/13/80, at 769-07, and invited the jury to conclude that Mitchell had made a bargain with the Commonwealth in exchange for his testimony. Tr., 2/13/80, at 761-64. It was appropriate for the Commonwealth to respond to this line of questioning by seeking to show that Mitchell's motive for testifying was instead that one or both of the two defendants had placed a contract on Mitchell's life. See R&R at 53-54. Goldberg's decision not to object was therefore not unreasonable.

 4. Failure to Object to Mitchell's Testimony that Johnston Had Been Involved in Other Murders. Johnston's fourth claim is that Goldberg should have objected to Mitchell's testimony that David Johnston had said, in the course of a conversation with Norman Johnston and Bruce Johnston about the disposal of the body of James Sampson, that if Sampson's body were put in the landfill "it would not be found like the other guys that were put in the landfill." R&R at 55. Although this testimony related only to comments by David Johnston, it could have suggested to the jury that the Johnston brothers, as a group, had been responsible for other murders. Thus, the testimony was harmful to Norman Johnston.

 Goldberg himself explained his failure to object to Mitchell's testimony as being part of a strategy of impeaching Mitchell by attempting to show that his testimony was inconsistent. The defense anticipated that Johnston would be confused as to how many bodies were in the landfill and in another burial site, and saw Mitchell's landfill testimony as "another example of Mitchell being inconsistent." Tr., 7/7/82 at 27. Both Goldberg and John Lachall (who was David Johnston's attorney) devoted a considerable effort in their closing arguments to attacking Mitchell's credibility, specifically on the ground that Mitchell was confused about events and therefore unreliable. Tr., 3/13/80, at 5128-41, 5198, 5221-25. Judge Sugerman, in an opinion ruling on a post-trial motion by Johnston for a new trial, found that attacking Mitchell as unreliable had indeed been Goldberg's strategy, Opinion of Judge Sugerman at 225-35, and that finding is binding on this court. See 28 U.S.C. § 2254(d); see also Flamer v. State of Delaware, 68 F.3d 736, 756 (3rd. Cir. 1995) (similarly treating a state-court finding as to the nature of counsel's trial strategy as binding).

 Certainly, this represented a risky choice of trial strategy. In adopting it, Goldberg was hoping that the jury would view Mitchell's testimony as evidence of Mitchell's own confusion, rather than as evidence of his client's involvement in other, uncharged murders. However, under Strickland, "counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment," and "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." 466 U.S. at 690. There is no indication that any further investigation of either law or facts would have affected Goldberg's assessment of his trial strategy. Thus, this court must determine whether Goldberg's strategic choice was so unreasonable as to meet Strickland's high standard for challenges to counsel's strategic decisions. Although Goldberg's strategic choice was a risky one, it cannot be said to be so unwise as to meet that standard.

 5. Failure to Object to Commonwealth's Closing Argument. Johnston's fifth and final claim of ineffective assistance of counsel is that his counsel was ineffective because he failed either to object during the Commonwealth's closing argument or to request a curative instruction. *fn15" Johnston cites seven instances in which he believes an objection would have been appropriate. As to four of these statements, an objection would very likely not have been sustained, so that Goldberg's failure to object was reasonable. Three of those four were efforts by the Commonwealth to explain its reliance on the testimony of Johnston's co-conspirators. *fn16" The fourth was a somewhat overstated, but acceptable, attempt by the Commonwealth to set forth its theory as to Johnston's motive for committing the murders. *fn17" A fifth statement was clearly, in context, a slip of the tongue by the prosecutor, and Goldberg's failure to object could not have been prejudicial. *fn18"

 The two remaining instances cited by Johnston appear to be cases in which an objection would likely have been sustained. The first was the prosecutor's statement that "Norman tells you a couple of other things, that the night of the ambush he just beat the police home -- the night of the ambush he just beat the police home, and that is the testimony that came from Trooper Yoder, and that is the testimony that came from Agent Carr . . . ." Tr., 3/14/80, at 5284-85. There appears to be no support in the record for the proposition that Norman Johnston had testified that he had "just beat the police home." The prosecutor's attribution of such testimony to Norman Johnston was almost certainly another slip of the tongue. Very likely, the prosecutor meant to attribute this statement to Yoder and to Carr, but not to Johnston; the fact that he seems to have repeated himself suggests that the second part of his statement may have been intended to correct the first.

  An objection might also have been an appropriate response to the prosecutor's reference to the petitioner's having allegedly put a "contract" on Mitchell's life. Tr. at 5313. The prosecutor did not purport to raise this evidence in the course of a discussion of Mitchell's motives for testifying, but referred to it in the course of a prolonged listing of what he called "the supporting evidence with respect to the triple killing." Id. This use of the evidence was inappropriate, and an objection to this statement would presumably have been sustained.

 Goldberg may well have had some strategic reason for not objecting to these two statements; he may have thought, for instance, that repeated objections during a closing argument would hurt his client in the eyes of the jury. Goldberg's reasons are not before this court. Even supposing, however, that Goldberg's failure to object was not a strategic decision, I cannot say that, had he objected, "there is a reasonable probability that the result of the proceeding would have been different." Strickland, 466 U.S. at 694. As to the prosecutor's statement that Norman Johnston had testified that he had "just beat the police home," the jury would have almost certainly recognized this remark as a slip of the tongue, both because of its phrasing and because they had heard Johnston's testimony.

 The prosecutor's reference to the alleged "contract" on Mitchell's life raises somewhat more difficult questions. However, the prosecutor's reference to the "contract" was fleeting; it was one item in a long list of items of misconduct attributed to Johnston. Tr. at 5313. The jury had already been told that a "contract" existed, as part of the Commonwealth's effort to establish Mitchell's motive in testifying. It is therefore unlikely that much incremental harm was done to the petitioner's case by the prosecutor's inappropriate citation of the "contract" as direct evidence of Johnston's guilt. I find, therefore, that there is not a reasonable probability that, had Goldberg objected, the result of Johnston's trial would have been different.

 III. Conclusion.

 I conclude that Johnston's petition for habeas corpus should be denied. An appropriate order follows.


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