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Say v. Tennis

August 23, 2007


The opinion of the court was delivered by: Judge Conaboy


In this Petition, Mark Anthony Say seeks relief from his state convictions for third degree murder, aggravated assault, and tampering with evidence. On November 3, 2003, in Monroe County, Pennsylvania, Mark Anthony Say was convicted by a jury of these offenses after approximately four days of trial. The charges grew out of the death of Jamie Walling. Jamie Walling and Mark Anthony Say were living together when she was found on October 14, 2000, with a gunshot wound to the head lying on the floor in the bedroom of the house they shared. She died from the wound in a hospital on the following day.

By way of this Petition, filed pursuant to federal statute 28 U.S.C. § 2254, Mark Anthony Say ("Petitioner") asks this Court to grant him a new trial. He argues a new trial is warranted because he was denied a fair trial by the court in Monroe County due to certain improper evidentiary rulings and also because he now has evidence supporting his theory of the case which he did not have at the time of trial. Specifically, he presents three bases for a new trial to this Court. First, he argues the reference at trial to the report of the blood spatter expert, Paul Kish, caused irreversible prejudice. He also argues the report itself is favorable to his theory of the case. Second, Petitioner argues he was denied a fair trial when the trial judge curtailed the cross-examination of a government witness, Joseph Laird. Third, Petitioner maintains the trial court's allowance of the use of the term "victim" when referring to Jamie Walling denied him a fair trial.

When analyzing the issues raised, we are bound by a body of law which defines the role of a federal district court in reviewing state court proceedings. This is a limited review which does not consider whether the trial court could have made a different decision or whether the reviewing court would have decided the issue differently.

Applying the required analysis, the arguments presented do not provide a basis to grant a new trial for the reasons discussed later in this Memorandum. This Court has thoroughly reviewed Petitioner's claims and given him every favorable inference allowed by applicable law. Given the parameters of the review conducted, we conclude he was given a full and fair trial and his conviction was fully justified by virtue of the testimony and evidence presented to the Court and jury in Monroe County.

I. Background

A. Factual Background*fn1

On November 3, 2003, after a jury trial in Monroe County, Pennsylvania, Petitioner was convicted of Aggravated Assault, Tampering with Evidence and Third Degree Murder connected with the death of Jamie Walling. The incident underlying the conviction took place on October 14, 2000. On that date at approximately 9:15 p.m., the Monroe County Communication Center received a call from Joseph Laird saying "[s]omebody shot themselves in the head here." (Doc. 18-1 at 1.) Upon arrival at the residence identified by the caller, police found Jamie Walling unconscious and lying on the floor of the master bedroom. Also present in the house were Mr. Laird (an employee of Petitioner's in the house reportedly to do some painting) and Petitioner, who was Ms. Walling's boyfriend with whom she lived. The three were the only people present when the incident occurred. Ms. Walling's brother, Jared Walling, left shortly before. Ms. Walling died on October 15, 2000, as a result of her injuries.

Beyond agreeing that Ms. Walling and Petitioner had an argument prior to the incident, Petitioner's and Repondents' version of events vary dramatically. Petitioner asserts he was in the kitchen with Mr. Laird following an argument with Ms. Walling when the two "heard a bang." (Doc. 18-1 at 3.) He asserts that he thought she had thrown something against the bedroom door and when he looked into the room, he saw her lying on the floor bleeding from the head. Petitioner further asserts he was cooperative with authorities and consistently gave the same recitation of events.

With citation to the record, Respondents maintain that members of the Pocono Mountain Regional Police Department, the first to arrive on the scene, found Ms. Walling in the bedroom bleeding from the head with a gun lying at her feet. (Doc. 14 at 9.) It is asserted that Petitioner could not keep his story straight when first interviewed by police, initially saying Ms. Walling must have shot herself, then saying that someone in the closet shot her, and finally saying it was an accident. (Id.) Police also noted some clean-up after the shooting. (Id.)

Respondents cite the record regarding Mr. Laird's interview where he reported Petitioner and Ms. Walling had been fighting in the bathroom prior to the shooting and he attempted to break up the fight after observing Petitioner's hands around Ms. Walling's neck. (Doc. 14 at 10.) He then observed Petitioner grab a pistol, point it at Ms. Walling, and tell her "I'll blow your fucking head off." (Id.) Mr. Laird reported he returned to the kitchen and heard a banging noise from the bedroom after which Petitioner came to the kitchen saying Ms. Walling had shot herself. (Id.) Mr. Laird told police he then went to the bedroom but did not see a gun anywhere near Ms. Walling. (Id.) After Petitioner told him to leave the house to direct the ambulance, Mr. Laird did so. He later reported to an interviewer that when he returned to the house, he noticed Petitioner was dressed differently and his hair was wet. (Id.) He also reported noting that a gun had been placed at Ms. Walling's feet when he returned to the bedroom. (Id.)

This information from Mr. Laird was not provided at the scene or at the police station immediately thereafter. Rather, according to Petitioner, it was provided some time in February 2001. On the night of the incident, though both Petitioner and Mr. Laird were taken to the police station for questioning, Petitioner was released while Mr. Laird was detained. He was arrested and charged with Unsworn Falsification to Authorities, 18 Pa. C.S.A. § 4904(a)(1), and False Reports to Law Enforcement Authorities, 18 Pa. C.S.A. § 4906(b)(1). Mr. Laird was incarcerated at the Monroe County Correctional Facility in lieu of bail.

Petitioner maintains Mr. Laird filed a Petition for Writ of Habeas Corpus on or about October 25, 2000, through an assistant public defender. The allegations therein included that "[t]he charges are filed against the Defendant to cause the Defendant to testify beyond the power of his recollection in a manner desired by the police investigating the manner of Jamie Walling's death."

(Doc. 18-1 at 4.)

On April 27, 2001, Monroe County Assistant District Attorney Mancuso filed a Petition to Nolle Prosequi the charges against Laird because the case lacked "prosecutorial merit." (Id.)

On March 22, 2002, the defense filed a pretrial motion for discovery requesting, among other things, "all expert reports generated by Commonwealth witnesses." (Doc. 18-1 at 4.)

On September 3, 2002, the defense filed an Omnibus Pretrial Motion, within which Defendant moved to compel the Commonwealth to produce the expert report of Paul Kish, a blood spatter expert.

On September 9, 2002, Monroe County Assistant District Attorney Christine stated he did not intend to use Mr. Kish in his case in chief and, as of that date, did not intend to get a report from him.

Mr. Kish provided a report to the Commonwealth dated December 3, 2002, which was given to the prosecution's expert, Dr. Mihalakis. Petitioner asserts a copy of the report was not provided to defense counsel until August 30, 2006.

On October 28, 2003, trial commenced.*fn2 Dr. Mihalakis briefly discussed blood spatter findings and stated that he reviewed Dr. Kish's report. Defense counsel objected on the basis that he had not received the report. When the prosecution could not show the Court that it had sent the report to defense counsel, the Court stated: "I am going to remove any reference to Mr. Kish. [Dr. Mihalakis] can't testify about anything that involves Mr. Kish." (Doc. 1 at 29.)

Mr. Laird also testified at trial. In cross-examining Mr. Laird, defense counsel asked him about a habeas petition previously filed by his attorney. Mr. Laird stated he did not know his counsel had filed a petition. Defense counsel then sought to question Mr. Laird about a statement in the petition: "And in it did you say that the police wanted you to testify to something you didn't see . . . or they wanted you to testify contrary to your memory?" (Doc. 1 at 38.) After Mr. Laird responded "[n]ot that I recall," the trial judge called a sidebar conference. (Id.) The prosecution argued that, because Mr. Laird did not know his attorney filed the petition, it was improper cross-examination. The court determined "[i]t is not his statement" and sustained the objection. (Id. at 40.)

While the responding officer was testifying at trial, defense counsel twice objected to the use of the term "victim" when referring to the decedent. The judge first overruled the objection without comment. After the second objection, he stated "she can be a victim of her own hand," and again overruled the objection. (Doc. 1 at 44.)

As noted above, the trial concluded on November 3, 2003, with the Defendant being found guilty of third degree murder, aggravated assault and tampering with evidence.

B. Procedural Background

Following the guilty verdict, Petitioner appealed the conviction to the Superior Court of the Commonwealth of Pennsylvania asserting eight (8) issues of error, (Doc. 18-1 at 5; Doc. 18-6 at 10), including the three grounds for relief set out in the instant Petition. On March 15, 2005, the Superior Court adopted President Judge Vican's Pa. R.A.P. 1925(a) Opinion/Statement and Order. (Doc. 18-6 at 12.)

Petitioner filed a Petition for Allowance of Appeal in the Supreme Court of Pennsylvania in which he presented four (4) questions for review. (See Doc. 14 at 44. ) The questions presented include two of the grounds for relief set out in the instant Petition. The Supreme Court denied the Petition for Allowance of Appeal on October 18, 2005.

Petitioner filed the instant counseled 28 U.S.C. § 2254 habeas petition on October 5, 2006. (Doc. 1.) The Court ordered service on October 17, 2006. (Doc. 3.) A response to the Petition was filed by the Monroe County District Attorney's office on November 6, 2006. (Doc. 14.) Petitioner's Memorandum of Law in Support of Petition for Writ of Habeas Corpus and Contra Respondent's Reply (Doc. 18-1) was filed on December 5, 2006. On May 24, 2007, after review of the parties' submissions, the Court ordered supplemental briefing of certain issues identified in the Order. (Doc. 27.) The briefs were to be filed on or before June 6, 2007, and the parties were allowed until June 20, 2007, to file reply briefs. (Id.) Only Respondents filed the supplemental brief. (Doc. 28.) Petitioner did not file a reply to Respondents' submission and the time for such filing has passed. Therefore, this matter is now ripe for disposition.

II. Discussion

As noted by our Third Circuit Court of Appeals, the Supreme Court has often said habeas corpus is an "'extraordinary remedy' reserved for defendants who were 'grievously wronged' by the criminal proceedings." Dunn v. Colleran, 247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998)). The reasons for restraint exercised by federal courts in reviewing and granting habeas relief are many, including the considerations of comity and federalism. "The States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power and their good-faith attempts to honor constitutional law." Engle v. Isaac, 456 U.S. 107, 128 (1982). Also, states have a recognized interest in the finality of convictions that have survived direct review within the state court system. Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).

A district court may entertain an application for a writ of habeas corpus filed by a person in state custody "only on the ground that he is in custody in violation of the Constitution or laws of the United States." 28 U.S.C. § 2254(a). Absent special circumstances, the petition "shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the state." 28 U.S.C. § 2254(b). If an applicant has the right to raise the questions presented under any available state procedure, he shall not be deemed to have exhausted the remedies available. 28 U.S.C. § 2254(c). If a claim presented in a habeas § 2254 petition has been adjudicated on the merits in state court proceedings, habeas relief cannot be granted unless the adjudication of the claim -- (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

A one year limitation period applies to a § 2254 petition. 28 U.S.C. § 2244(d)(1). The limitation period runs from the latest of one of four predicate occurrences, most commonly the date on which the judgment became final by the conclusion of direct review or the expiration of the time for filing such review. 28 U.S.C. § 2244(d)(1)(A).

Here, Petitioner's habeas petition raises the questions of whether he has complied with the procedural requirements of § 2254 and § 2244 and, concerning the merits of his claims, whether there has been a violation of constitutional rights or federal law in the actions complained of which took place during Petitioner's trial.

Petitioner asserts he is entitled to relief because he was denied a fair trial on the following three grounds: 1) Due Process and right to cross-examination violations based on the prosecution's failure to provide the defense with a blood spatter expert report relied upon by a testifying expert, prosecution witness Mihalakis, and related trial court rulings (Doc. 1 Ex. 3); 2) Due Process and right to cross-examination violations based on limitations imposed on the cross-examination of prosecution witness Laird (Doc. 1 Ex. 4); and 3) the presumption of innocence and procedural due process were rendered meaningless by the trial court's allowing the prosecution to refer to the decedent as "the victim" (Doc. 1 Ex. 5). We will address each of these grounds for relief in turn.

A. Blood Spatter Expert Report

As his first ground for relief, Petitioner states the following:

The lower court erred with respect to the Commonwealth's discovery violation when government expert witness Mihalakis testified to and relied on the report of a blood spatter expert not provided to the defense despite repeated specific discovery requests thus denying Petitioner procedural due process of law, the ability to conduct an effective cross examination and fair trial. (Doc. 1 at 17.) As will be discussed in greater detail below, this claim as stated is similar, though not identical, to those raised before state courts. (See Doc. 14 Exs. B, C, D.) However, in Petitioner's Memorandum of Law in Support of Petition for Writ of Habeas Corpus and Contra Respondent's Reply (Doc. 18-1), he also argues the report of the blood spatter expert, which he received on August 30, 2006, favors the defense. (Doc. 18-1 at 12.) He did not make this argument in state court. (See Doc. 14 Exs. B, C, D.)

1. Due Process Violation Based on Failure to Produce Evidence

Regarding the failure of the prosecution to produce the blood spatter expert report, Petitioner asserts he filed a pretrial motion for discovery requesting, inter alia, all expert reports generated by Commonwealth witnesses. (Doc. 1 at 17.) Petitioner later filed an Omnibus Pre-Trial Motion within which he requested the expert report of Paul Kish, the Commonwealth's blood spatter expert. (Id.) At the hearing held on the Omnibus Motion, Monroe County Assistant District Attorney Christine stated Mr. Kish would not be a witness for the Commonwealth case in chief and as of that date the Commonwealth did not intend to get a report from him. (Id.) When Dr. Isadore Mihalakis was called by the Commonwealth as an expert witness to render an opinion as to the manner of death, in the course of his testimony he indicated he reviewed Mr. Kish's report. (Id.) Although the prosecution said they included it in discovery, they could not show the court they had done so. (Id.)

Petitioner argues "[a] mistrial was the proper and only adequate remedy due to the irreparable prejudice caused by the discovery violation." (Doc. 18-1 at 8.) Petitioner cites the fact that Dr. Mihalakis had referred to the report before the court excluded it and Petitioner did not have the benefit of the report to effectively cross-examine Dr. Mihalakis or present a complete defense. (Id.) Petitioner cites Pennsylvania Rules of Criminal Procedure and decisions of Pennsylvania courts in support of his argument that a new trial is warranted. (Doc. 18-1 at 6-9.) He faults the trial court opinion and Superior Court ruling for not conducting a proper discovery violation analysis. (Id. at 9.)

Petitioner also maintains the prosecution's withholding of evidence constitutes a violation of the Due Process Clause of the Fourteenth Amendment because he has suffered the required prejudice. (Doc. 18-1 at 10-13.) Petitioner contends prejudice can be found on three bases: he was precluded from cross-examining Dr. Mihalakis concerning one of the bases of his expert opinion; his experts did not have the benefit of reviewing the report in forming their opinions; and he was precluded from reviewing the report with expert consultants in preparation for trial. (Doc. ...

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