United States District Court, E.D. Pennsylvania
February 24, 2004.
JEFFREY A. BEARD
The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge
MEMORANDUM AND ORDER
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
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
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
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
THE COURT: I cannot answer that.
JUROR NO. 2: Is that part of the law?
THE COURT: Yes.
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.
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
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).
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
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.
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
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 the statements. The court's non-response did not reaffirm
what the court had stated earlier, as argued by the respondent. The Court
concludes that it was error.
Concluding that there was constitutional error is just the first step
in the analysis, however. The next question is
does the petitioner have to show prejudice from the error or should
prejudice be presumed. The petitioner argues that prejudice must be
presumed because this error is structural under Cronic. The
Court is not persuaded by the petitioner's arguments.
Prejudice is not presumed every time a Court has an ex parte
discussion with a deliberating jury. See United States v.
Toliver, 330 F.3d 607, 617 (3d Cir. 2003). In Toliver, the
Court of Appeals found constitutional error in a trial judge's answering
a jury's question without counsel's presence or permission; but, the
Court, nevertheless, conducted a harmless error analysis. It is true that
the trial judge's interaction with the jury in Toliver was
arguably less prejudicial than what happened here. In Toliver,
the trial judge, after receiving a note from the jury requesting certain
testimony, had certain portions of the testimony transcribed and sent
back to the jury without consulting with counsel. Here, the jurors
expressed confusion over how they were allowed to use the defendants'
statements a situation calling for a re-instruction by the Court
or at least consultation with counsel as to the proper way to respond to
the jurors' questions. The Court's analysis, however, is also informed by
United States v. Richards, 241 F.3d 335 (3d Cir. 2001), in
which the Court of Appeals conducted a harmless error analysis of a
Bruton violation. When this Court puts Toliver and
Richards together, it concludes that even if
this were a direct appeal of a federal court conviction, prejudice
should not be presumed.
If prejudice would not be presumed in a direct appeal, it should not be
presumed in a habeas case. The question in a habeas case is whether the
Pennsylvania courts' decision was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States. The Court cannot
conclude that it was. The Court does not read Cronic to say
that every time a judge talks ex parte with the jury, prejudice
will be presumed. Here, the trial judge erred not in what the judge said
but in what the judge did not say and do: inform the lawyers of the
questions and reinstruct on Bruton.
Having concluded that prejudice should not be presumed, the next
question is whether or not the Superior Court's analysis of the harmless
error issue resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law. When a
state court finds error but finds that the error was harmless, a question
is raised as to whether the state court's application of
Chapman should be reviewed or whether the federal court should
independently apply the harmless error standard for habeas cases set
forth in Brecht v. Abrahamson, 507 U.S. 619, 622 (1993) ("The
standard for determining whether habeas relief must be granted is whether
the . . . error `had substantial and injurious effect or influence in
determining the jury's verdict.'"). See Penry v. Johnson,
532 U.S. 782, 795 (2001) (applying Brecht in habeas case post
The Third Circuit has not decided this issue. Marshall v.
Hendricks, 307 F.3d 36, 73 n. 25 (3d Cir. 2002). The Court does not
have to decide this issue here because it finds that the error would be
harmless under either standard. The co-defendant presented a
misidentification defense at trial, emphasizing the several failures of
eyewitnesses to identify him in photo arrays and lineups. During the
trial, the co-defendant contended that his statement to the police, in
which he admitted that he robbed the store with the petitioner, was
involuntary. To support this argument, the co-defendant elicited
testimony that the police placed him, shirtless and wet, in an
air-conditioned room for several hours. The jury acquitted the
The Court agrees with the respondent that the most reasonable
conclusion from the acquittal is that the jury believed that the
statement was coerced. It, therefore, is highly unlikely that the jury
used the discredited statement against the petitioner. This is especially
true in light of the strong evidence against the petitioner. The victim
identified the petitioner several times as the man standing at the door
with a shotgun and another employee of the store identified the
petitioner as one of the two men at the scene. The petitioner admitted in
his statement that he entered the store, armed with a
gun, intending to rob it. His defense was that he changed his mind.
In light of all of the evidence and the jury's acquittal of the
co-defendant, the Court finds no error in the Superior Court's harmless
error analysis. The Court's conclusion is the same under the
Although the Court denies the habeas petition, it will issue a
certificate of appealability ("COA"). The Supreme Court recently has
cautioned that the habeas court should not deny a COA merely because it
believes that the petitioner will not succeed on appeal. Miller-El
v. Cockrell, 537, U.S. 322, 337 (2003). "The petitioner must
demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong."
Id. at 338. The question whether the petitioner has met this
standard is a close one for the Court; but the Court will issue the COA.
I cannot say that the petitioner's interpretation of Cronic is
AND NOW, this 24th day of February, 2004, upon consideration of the
petitioner's Petition for Writ of Habeas Corpus, the respondents' Answer
to the Petition, and the Report and Recommendation ("R&R") of United
States Magistrate Judge Diane M. Welsh, the petitioner's Objections
thereto, the respondents' response thereto, and oral argument on the
petitioner's Objections held on February 19, 2004, IT IS HEREBY ORDERED
that the Petition for Writ of Habeas Corpus is DENIED and DISMISSED
without an evidentiary hearing; and a certificate of appealability is
GRANTED for the reasons stated in a memorandum of today's date.