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