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February 24, 2004.


The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge


The petitioner was convicted by a jury in the Court of Common Pleas of Philadelphia on February 26, 1998, of robbery, theft, possession of an instrument of crime, and criminal conspiracy. His co-defendant was acquitted. The Superior Court of Pennsylvania affirmed the petitioner's conviction on November 6, 2000. The petitioner has filed the present habeas petition, alleging that the trial judge violated his constitutional rights by having an ex parte discussion with the jury during their deliberations, about statements given to the police by the petitioner and his co-defendant.

The Honorable Diane M. Welsh has filed a Report and Recommendation ("R&R") that the petition be denied and a certificate of appealability not issue. The petitioner filed objections to the R&R and the Court held oral argument on February 19, 2004. The Court agrees with the recommendation of Page 2 Judge Welsh that the petition be denied. But the Court will issue a certificate of appealability.

  The Court incorporates the background section of the R&R into this memorandum. In summary, the petitioner was tried with a co-defendant for the robbery of a tire store. After his arrest, the petitioner admitted going into the tire store to commit robbery but said that he "got scared" and withdrew from participating in the robbery with the co-defendant. The co-defendant also gave a statement admitting his involvement in the robbery and implicating the petitioner.

  The trial court ordered that both defendants' statements be redacted to delete any reference to the other defendant. The petitioner does not dispute that the statements were properly redacted and the jury properly instructed initially under Bruton v. United States, 391 U.S. 123 (1968). The petitioner's claims arise from interaction between the trial judge and the jury during deliberations.

  After the jury began deliberating, the trial judge conferred with the parties' counsel regarding questions from the jury as to the time of the robbery and the time of the petitioner's arrest. Upon agreement of all counsel as to the appropriate response to the jurors' questions, the judge entered the deliberation room without counsel and instructed the jurors that they should use their own recollection to make determinations of fact. The petitioner's counsel did consent to Page 3 the judge communicating with the jurors in the deliberation room on that particular issue without counsel present. While the judge was in the deliberation room, the foreperson asked if it would be permissible for the jury to see an exhibit to help the jurors answer their questions regarding the time of the robbery and the time of the petitioner's arrest. The judge left the deliberation room and again conferred with the parties' counsel and counsel again agreed upon an acceptable response for the jury.

  After the judge went into the deliberation room with the court reporter and provided the agreed upon response for the jury, the following communication occurred between the judge and the jury:
JUROR NO. 9: A trial like this when there are two defendants, is it possible for one to say the name of the other or visa versa?
JUROR NO. 6: On the statement is it possible they can mention the other, you know what I mean, defendant's name and state if they confessed to a crime?
THE COURT: I cannot answer that.
JUROR NO. 2: Is that part of the law?
It is this particular communication between the judge and jury and the judge's alleged failure to notify the petitioner of the communication which petitioner presently claims violated his constitutional rights. Page 4

  While the judge was still in the deliberation room, jurors asked the judge about the definition of "Possession of an Instrument of Crime." The record indicates that the judge left the deliberation room and conferred with the lawyers again, and the judge subsequently re-entered the deliberation room. The judge then told the jury: "I have just had discussions with all three lawyers, I explained to them the question that you asked in the room as the court reporter was taking it down, and I indicated I would re-read the definition of Possession of an Instrument of Crime, and that was agreed by all the lawyers." The judge re-read the requested definition.

  The petitioner raised three issues in the Superior Court, only one of which relates to the claims raised in his habeas petition. The Superior Court considered whether "the trial court err[ed] when the court answered questions posed by the jury regarding [the petitioner's] statement, and implicating the principles of Bruton v. United States, without first informing the parties that the questions had been asked, in violation of [the petitioner's] state and federal constitutionally guaranteed rights to counsel, due process of law, confrontation and cross-examination, and to be present during the proceedings against him." Commonwealth v. Mashore, No. 1599 Philadelphia 1998, slip op. at 2 (Pa. Super.Ct. Nov. 6, 2000). Page 5

  Although the Superior Court does not say so explicitly, it appears that the Superior Court either found or assumed error because it performed a harmless error analysis under the following rubric: "`where there has been ex parte contact between the court and jury in a criminal case, we are constrained to reverse the defendant's conviction unless there is no reasonable possibility that the error might have contributed to the conviction.'" Id. at 7-8, quoting Commonwealth v. Young, 748 A.2d 166, 175 (1999). This analysis is comparable to the analysis for constitutional error set out by the United States Supreme Court in Chapman v. California, 386 U.S. 18 (1967): "`[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.'"

  The petitioner claims that the Superior Court erred by not presuming prejudice by the petitioner's absence at a critical stage of the proceedings against him, citing United States v. Cronic, 446 U.S. 648 (1984). The petitioner also argues that even if prejudice should not have been presumed, the Superior Court unreasonably applied the Chapman analysis. The respondent argued before the Magistrate Judge that the petitioner's claims were procedurally defaulted. Judge Welsh recommended that the Court reject this argument. At oral argument before this Court, the respondent appears to argue that only the claim that prejudice should be presumed is defaulted because the petitioner Page 6 did not specifically cite Cronic to the Superior Court. The Court is not persuaded by this argument; the obligation to exhaust state remedies does not include the obligation to name a specific Supreme Court case on which the petitioner ultimately relies. The Court adopts the analysis of Judge Welsh on the issue of exhaustion of state remedies.

  The Court, therefore, will consider the merits of the petition.*fn1 The Court incorporates herein the legal standard under 28 U.S.C. § 2254 set out by the Magistrate Judge. See R&R at 5-8. The petitioner argues that the Pennsylvania courts unreasonably applied clearly established United States Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) in its analysis of the error committed by the trial judge and in its harmless error analysis. Page 7

  As stated above, the Court reads the Superior Court decision as finding error at least in the ex parte nature of the conversation among the trial judge and the jurors. The Superior Court does appear to have rejected the argument that the trial judge's responses to the jurors' questions violated Bruton. The Court agrees with the Superior Court that the trial judge erred in answering the jurors' questions ex parte but also concludes that the trial judge's colloquy with the jurors and its failure either to tell defense counsel of the colloquy or to reinstruct the jury on the proper use of the statements was error.

  The questions from the two jurors exhibited confusion over how the jury was to use the defendants' statements. It does appear that at least some of the jurors were going beyond what the trial court had originally instructed on the use to be made of the statements under Bruton, The jurors appeared to be considering each defendant's statement in relation to the other defendant. Rather than saying, "I cannot answer that," the trial judge should have consulted with counsel about the question and then reinstructed on Bruton, making clear that the jury should not make any inferences about what was redacted from ...

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