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Smith v. Horn

July 24, 1997

CLIFFORD SMITH

v.

MARTIN HORN, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JAMES PRICE, SUPERINTENDENT, OF THE STATE CORRECTIONAL INSTITUTION AT GREENE, AND; JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT, OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW DISTRICT ATTORNEY OF BUCKS COUNTY, APPELLANT

NO. 96-9002

CLIFFORD SMITH, APPELLANT

v.

MARTIN HORN, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JAMES PRICE, SUPERINTENDENT, OF THE STATE CORRECTIONAL INSTITUTION AT GREENE, AND; JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT, OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW



On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. No. 95-cv-03671)

Before March 26, 1974, the definition of murder in the first degree in Pennsylvania included felony-murder. See 18 PA. CONS. STAT. ANN.Section(s) 2502, Historical Note (1983). Thus, Roux would be inapposite even if the defendant there had been convicted of first-degree murder.

COWEN, Circuit Judge.

Filed July 24, 1997

Argued March 11, 1997

OPINION OF THE COURT

This is an appeal from a judgment of the district court granting in part petitioner-appellee/cross-appellant Clifford Smith's petition for a writ of habeas corpus. The district court held that certain comments made by the prosecutor at the penalty phase of Smith's trial for first-degree murder violated Smith's rights pursuant to the Eighth and Fourteenth Amendments. The district court further held that the failure of Smith's attorney to object to these comments violated Smith's right to the effective assistance of counsel pursuant to the Sixth and Fourteenth Amendments. The district court rejected Smith's claim that instructions to the jury at the guilt phase of the trial, concerning the elements of first-degree murder pursuant to Pennsylvania law, violated Smith's right to a fair trial pursuant to the Due Process Clause of the Fourteenth Amendment. Similarly, the district court rejected Smith's arguments that other constitutional errors occurred at the penalty phase.

Respondents-appellants/cross-appellees ("Pennsylvania" or "the Commonwealth") contend that the district court erred in its determination that the prosecutor's closing argument at the penalty phase, and the failure of Smith's attorney to object to that argument, violated Smith's federal constitutional rights. Smith cross-appeals, contending that the district court erred in denying him habeas relief with regard to his conviction for first-degree murder, and in rejecting his other arguments for granting relief based on alleged defects at the penalty phase.

We agree with Smith that errors in the jury instructions at the guilt phase of his trial violated his rights pursuant to the Due Process Clause of the Fourteenth Amendment. We thus do not reach the district court's holding that errors at the penalty phase violated Smith's rights pursuant to the Sixth, Eighth, and Fourteenth Amendments. We also do not reach Smith's arguments concerning other claims of error that occurred at the penalty phase. Accordingly, we will vacate the judgment of the district court in part, reverse in part, and remand with directions to grant habeas relief.

I.

On November 22, 1983, in the Court of Common Pleas, Bucks County, Pennsylvania, Smith was convicted offirst-degree murder, among other crimes. The evidence at trial showed that on June 17 of that year, Smith and Roland Alston entered a pharmacy with the intention of robbing it, that they forced three persons inside the store to lie in a prone position on the floor as they committed the robbery, and that one of the robbery victims, Richard Sharp, sustained a fatal gunshot wound to the head.

Yvette Barrow and Cheryl Yancey, who later pled guilty to being accomplices to the robbery, testified that Alston and Smith committed the robbery while Barrow and Yancey waited in Barrow's car. One eyewitness saw Alston and Smith enter and leave the pharmacy at the time of the robbery. A second eyewitness saw the pair walk in the direction of the pharmacy just prior to the robbery. A third eyewitness identified the car in which Smith and Alston were traveling just after the robbery. All three independent eyewitnesses identified the clothing worn by the robbers, which was later found at the homes of Alston, Yancey, and Frances Atkins, Smith's former girlfriend. Items taken from the three robbery victims were later found at the homes of Barrow and Yancey.

Although there was evidence that both Alston and Smith carried handguns that day, the evidence tended to show that Smith actually committed the killing. According to the Commonwealth, Barrow testified that immediately after the murder, Alston yelled at Smith, "Why did you shoot the motherf[uck]er, why did you shoot him?" Appellant's Br. at 11. *fn1 Smith responded, "He walked into the store and he scared me -- the guy lifted his head and I had to do it, I had to do it." Id. Barrow also testified that Smith told Alston that "[s]ince [Smith] did the murder, he wanted the ring" that was one of the proceeds of the robbery. Id. Yancey similarly testified that Alston yelled at Smith, "Why did you shoot that motherf[uck]er, man? You almost shot me," to which Smith replied, "I had to." Id. She also testified that Smith stated that "he should have the ring because he's the one that killed the man." Id. There was also evidence that Smith's shoes had human blood on them. Finally, there was evidence that unfired cartridges found at Yancey's house had been loaded into and ejected from Alston's pistol, indicating that Alston's weapon had not been fired.

At the guilt phase of the trial, the district attorney made the following comments in closing argument:

[W]ho shot Richard Sharp is of no moment in this trial, because as His Honor will tell you, it makes no difference under the law and under the facts. It doesn't make one bit of difference who shot Mr. Sharp, because if you find as a fact, and I suggest you can based on the evidence, that Richard Sharp was killed by either Roland Alston or Clifford Smith, you canfind as a fact that there was murder in the first degree. It makes no difference who pulled the trigger. The acts of one accomplice are the acts of the other. The doings of one are the doings of the other.

. . . .

. . . [I]t makes no difference who fired the fatal shot . . . [F]or your purposes, it doesn't make any difference. The act of one is the act of the other. . . .

. . . .

. . . [I]f you find that this defendant or both defendants or either of them had the conscious purpose to take human life, you can find as a matter of fact and as a matter of law that it's murder in the first degree. . . .

. . . .

. . . [I]f you find that either Smith or Alston fired that bullet . . . if you find that either did this, both as conspirators or as accomplices are guilty of the crime of first degree murder.

. . . .

. . . Does the evidence indicate that Clifford Smith or Roland Alston, either or both of them, made a conscious decision to take human life, a willful, a deliberate, an intentional killing, no accident? Cross App. at 1007-08, 1010, 1012-13, 1014, 1017 (emphasis added).

The court first instructed the jury on homicide without reference to any specific offense or degree:

[I]f . . . you find that Smith and Alston were accomplices of each other, then it is not important for you to determine which one actually pulled the trigger that brought about the killing of Richard Sharp, if you find beyond a reasonable doubt that one of the two did so and were [sic] acting as the accomplice of each other at the time. In order, however, to find Clifford Smith to be guilty, you need not conclude, as I said, that he was the actor; that is, if I can use the word "shooter," but he was, nevertheless, acting as an accomplice of Alston and it was his intent of promoting or facilitating ...


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