The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
On September 22, 2006, Petitioner, John Lamont Lane, through his counsel, filed this petition and it was referred to United States Magistrate Judge Robert C. Mitchell for pretrial proceedings in accordance with 28 U.S.C. §§ 636(b)(1)(A) and (B), and Rules 72.1.3 and 72.1.4 of the Local Rules of the United States District Court for the Western District of Pennsylvania.
On January 8, 2007, the magistrate judge filed a Report and Recommendation (Docket No. 35), recommending that the petition for a writ of habeas corpus filed by Petitioner (Docket No. 1) be dismissed and that a certificate of appealability be denied.
Service of the Report and Recommendation was made on the parties, and Petitioner filed objections (Docket No. 38) on February 28, 2007. Respondents have not filed a response thereto.
In his objections, Petitioner contends, inter alia,*fn1 that the magistrate judge erred in deferring to the conclusion reached by the state courts that his allegations of trial counsel ineffectiveness and denial of a fair trial for allowing a former teacher of the Commonwealth's lead detective to serve on the jury were defeated by counsel's testimony at the PCRA hearing that counsel wanted to strike the teacher for cause but Petitioner insisted that she remain. He argues that seating a biased juror is a structural error that is not subject to harmless error analysis; that even if the right to an impartial jury can be waived, such waiver must be knowingly, intelligently and voluntarily made on the record (which did not occur here); and that, in the alternative, he should receive an evidentiary hearing on this issue. These contentions will be discussed seriatim.
First, although Petitioner is correct that seating a biased juror is a structural error, he has not demonstrated that such an error occurred in this case. He cites Hughes v. United States, 258 F.3d 453 (6th Cir. 2001), in which a prospective juror was asked at voir dire about her relationship with certain police officers and she stated "I don't think I could be fair." The defendant asked his lawyer to remove the juror, but counsel failed to do so. The government made no effort to rehabilitate her or pursue the matter further and thus the record established that she was a biased juror. The court of appeals held that seating this juror, whether the fault lay with the trial judge or trial counsel, was a structural error requiring a new trial. Id. at 463.
Here, by contrast, no record of the voir dire proceedings was transcribed and Petitioner has not suggested that the juror (Sarah Sumpter) stated on the record that she could not be impartial. Rather, he relies on the fact that Sumpter had been a teacher of Dennis Logan, the Commonwealth's lead investigator in the case, to create a presumption that she was biased in favor of the prosecution. This argument does not withstand scrutiny.
The test for determining whether a prospective juror should be disqualified is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor, Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). It must be determined whether any biases or prejudices can be put aside on proper instruction of the court, Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983). A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct and answers to question, Commonwealth v. Colon, 223 Pa. Super. 202, 299 A.2d 326 (1972).
Commonwealth v. Colson, 490 A.2d 811, 818 (Pa. 1985), abrogated on other grounds, Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001). In this case, Petitioner is relying on the test concerning Sumpter's "relationship" with Logan.
In Colson, the prospective juror knew the victim's mother, who had taught her son in school four years earlier, she was acquainted with one of the motorists who discovered the victim's van, and she was acquainted with the wife of the state trooper who was the prosecuting officer. The court held that none of these relationships was close enough to create a presumption of prejudice.
The decisions in which a relationship was found to be so close as to create a presumption of prejudice have involved situations in which the prospective juror was also a police officer or the close relative of a police officer. In Commonwealth v. Jones, 383 A.2d 874, 876 (Pa. 1978), prejudice was presumed because the prospective juror was a Philadelphia police officer in a case involving Philadelphia police officers and the focus of the defense was on the alleged voluntariness of the defendant's confession, because the credibility of the testifying officers was a critical factor.*fn2 In Commonwealth v. Fletcher, 369 A.2d 307, 308-09 (Pa. Super. Ct. 1976), prejudice was presumed because the prospective juror was a member of the same police department as the investigating officers, he knew them personally, he knew the district attorney who tried the case for the Commonwealth and he had experienced personal attacks during the course of performing his duties as a police officer (which was relevant because the defendant had forcibly resisted arrest in the case).
In Commonwealth v. Dye, 765 A.2d 1123, 1125-26 (Pa. Super. Ct. 2000), appeal denied, 784 A.2d 114 (Pa. 2001), prejudice was presumed when the prospective juror was the wife of the supervisor of the investigating police officer who was anticipated to and did in fact testify for the Commonwealth at trial. In Commonwealth v. Stamm, 429 A.2d 4, 7 (Pa. Super. Ct. 1981), prejudice was not presumed when the prospective juror was the aunt of a member of the district attorney's office (not the trial prosecutor) and was related to the police prosecutor in the case, although the exact degree of relationship was not disclosed by the record.
No Pennsylvania court has suggested that prejudice should be presumed when a prospective juror had been a teacher of the Commonwealth's lead investigator. Petitioner has not demonstrated that an objectively reasonable attorney in Pennsylvania would have concluded that Sumpter had such a close relationship with Logan that she should have been presumed to be ...