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McMullen v. Tennis

November 29, 2006

KIM MCMULLEN PETITIONER
v.
FRANKLIN TENNIS RESPONDENT



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is a petition for writ of habeas corpus (Doc. 1) in which petitioner, Kim McMullen ("McMullen"), challenges a Pennsylvania state conviction for murder. He contends that the Double Jeopardy Clause was violated and that trial counsel was ineffective for failing to move to suppress his inculpatory statement. Also, in his reply, he challenges the admissibility of the inculpatory statement. For the reasons that follow, the petition will be denied.

I. Statement of Facts

The pertinent facts and state court procedural history are as follows:

In the early morning hours of February 14, 1985, a grocery store in Orbisonia, Pennsylvania was burglarized. No suspect was arrested. A week later, the body of [the victim, [Dominic Barcelona]], a thirty year-old schizophrenic who frequently wandered around the community, was discovered in a creek not far from the scene of the burglary. At the time, the police made no connection between the two events, and, following an autopsy, [the victim's] death was ruled an accidental drowning. Both a highway bridge and railroad bridge were located not far upstream from where [the victim's] body was found.

In late 1989, when rumors surfaced that the burglary and [the victim's] death were related, both investigations were reopened. [McMullen] who at the time was incarcerated on other charges, gave a statement to police admitting that he and another man, Adam Wiser, committed the burglary, and, while fleeing, encountered [the victim] on a nearby bridge. [McMullen] stated that Wiser knocked [the victim] to the ground and then threw him into the creek.

A police investigation cleared Wiser of culpability in either crime, and [McMullen] was charged with burglary and homicide. The charges were tried together, and, on December 8, 1990, [McMullen] was convicted of both crimes. He was immediately sentenced to life imprisonment for the second degree murder conviction, and subsequently sentenced to eleven months to five year imprisonment for the burglary conviction. [McMullen] appealed both convictions, contending, inter alia, that the Commonwealth had failed to establish a corpus delicti and, therefore, the trial court had erred in admitting his inculpatory statement. On direct appeal, [the Pennsylvania Superior Court] agreed, concluding that there was "no convincing evidence to indicate [the victim's] death was more consistent with a homicide than with an accident." Commonwealth v. McMullen, [616 A.2d 14, 17 (Pa. Super. 1992) (emphasis in original)]. Accordingly [the superior court] vacated both convictions and remanded for a new trial.

The Commonwealth, however, appealed to the Pennsylvania Supreme Court, which affirmed that portion of [the lower court's] order vacating [McMullen's] conviction for second degree murder, and reversed that portion vacating [McMullen's] burglary conviction. Commonwealth v. McMullen, 545 Pa. 361, 373, 681 A.2d 717, 723 (1995).

Prior to [McMullen's] retrial on the homicide charge, the Commonwealth petitioned to exhume [the victim's] body and conduct a second autopsy. The trial court granted the Commonwealth's petition, although the petition was not served on [McMullen] until after the second autopsy had already been completed. Following the second autopsy, the cause of death was definitely ruled a homicide. [McMullen] subsequently filed a pre-trial motion to dismiss based on double jeopardy. The trial court denied the motion on February 4, 1997, and [McMullen] filed an appeal to the Pennsylvania Superior Court. [The superior court] affirmed the trial court's ruling, holding that the double jeopardy clause does not bar retrial in cases where the conviction is reversed because of improperly admitted evidence; only when an appellate court finds the evidence insufficient to sustain the verdict does the double jeopardy clause prohibit a retrial. Commonwealth v. McMullen, 721 A.2d 370, 371 (Pa. Super. 1998) (McMullen II). [The superior court] noted that, "although the evidence presently of record is insufficient to establish the corpus deliciti of murder," the Commonwealth must be granted an opportunity to "present its entire case . . . before any review of the sufficiency of the evidence may be undertaken by this Court." [McMullen] did not petition the Pennsylvania Supreme Court for review. On February 19, 1999, following a second trial, [McMullen] was once again convicted of second degree murder, and sentenced to life imprisonment.

Commonwealth v. McMullen, 745 A.2d 683, 685-86 (Pa. Super. 2000), appeal denied, 563 Pa. 700, 761 A.2d 549 (2000) ("McMullen III") (some internal citations omitted).

His judgment of sentence was affirmed. Id. The Pennsylvania Supreme Court denied allocatur. Thereafter, McMullen timely filed a PCRA petition. An evidentiary hearing was conducted. The PCRA petition was dismissed on February 20, 2004, and McMullen appealed to the superior court. (Doc. 15-7, pp. 4, 15-19). The superior court affirmed the dismissal of the PCRA petition. (Doc. 15-7, p. 14). His petition for allowance of appeal was denied on November 23, 2005. McMullen filed the present petition on January 24, 2005.

II. Claims Presented in Federal Petition

A. Double Jeopardy

McMullen's double jeopardy argument is twofold. First, he argues that the reversal of his first conviction on the grounds of insufficiency of the evidence invoked the double jeopardy clause and prevented a retrial. This issue was raised on direct appeal.*fn1 Commonwealth v. McMullen, 754 A.2d 683, 685-89 (Pa.Super. 2000). The superior court addressed the issue as follows:

The Double Jeopardy Clause clearly prevents a retrial in two circumstances.

First, the Double Jeopardy Clause attaches special weight to judgments of acquittal. A verdict of not guilty, whether rendered by the jury or directed by the trail judge, absolutely shields the defendant from retrial. A reversal based on the insufficiency of the evidence has the same effect because it means that no rational factfinder could have voted to convict the defendant.

Tibbs [v. Florida], 457 U.S. [31,] 41, 102 S.Ct. [2211], 2218, 72 L.Ed.2d [652], 661 [(1982)]. When reversal is based on insufficiency of the evidence, "the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble." Burks [v. United States], 437 U.S. [1], 16, 98 S.Ct. [2141], 2149-50, 57 L.Ed.2d [1], 12 [(1978)]. To permit retrial would "afford the government an opportunity for the proverbial 'second bite at the apple.'" Id. at 17, 98 S.Ct. at 2150, 57 L.Ed.2d at 13. However, the Double Jeopardy Clause does not preclude retrial when a defendant's conviction is overturned on grounds other than the insufficiency of the evidence. Lockhart v. Nelson, 488 U.S. 33, 38-39, 109 S.Ct. 285, 289-90, 102 L.Ed.2d 265, 272 (1988) (citing Burks, supra.)

In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through judicial process which is defective in some fundamental respect, e.g. incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in ...


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