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Johnson v. Lamas

United States Court of Appeals, Third Circuit

March 3, 2017


          Argued February 8, 2016

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No.: 2-12-cv-05156) District Judge: Honorable Anita B. Brody

          David Rudovsky [ARGUED] Kairys, Rudovsky, Messing & Feinberg Counsel for Appellant.

          Catherine B. Kiefer [ARGUED] Assistant District Attorney Susan E. Affronti Chief, Federal Litigation Unit Ronald Eisenberg Deputy District Attorney, Law Division Edward F. McCann, Jr. First Assistant District Attorney R. Seth Williams District Attorney Max C. Kaufman Philadelphia County Office of District Attorney Counsel for Appellees.

          Before: FUENTES [*] , KRAUSE, and RENDELL, Circuit Judges.


          RENDELL, Circuit Judge.

         In the early morning hours of August 26, 2005, off-duty police officer Terrence Flomo was shot to death while he sat in his car near the intersection of 20th Street and Cecil B. Moore Avenue in North Philadelphia. The Commonwealth charged William Johnson and Mumin Slaughter with murder based on witness identifications and forensic testimony. The shooting occurred after Flomo had stopped his car and solicited Brenda Bowens, a prostitute and Slaughter's and Johnson's long-time drug customer.

         At trial, the jury acquitted both defendants of first-degree murder, but convicted Slaughter on third-degree murder and criminal conspiracy. It failed to reach a verdict on any remaining charges as to Johnson.

         At Johnson's retrial, the prosecution introduced a statement that Slaughter had given police that implicated Johnson. Everyone agrees that this violated Johnson's right to confront witnesses against him, and Johnson now argues that the error caused him prejudice warranting habeas relief. Separately, Johnson urges that the prosecutor's calling Slaughter to testify knowing that Slaughter would invoke his Fifth Amendment privilege denied him of due process. For the reasons that follow, we will affirm the District Court's denial of Johnson's habeas petition.

         I. BACKGROUND

         Johnson's second trial began on May 28, 2009 and lasted four days. The Commonwealth's witnesses included Dr. Lieberman, the medical examiner, who testified that Flomo was shot in his right elbow and wrist area, as well as his chest. He opined that the gunshot to the chest caused significant damage to his liver, right lower lung, heart, and left lung, and as such was the "more immediately fatal of all three gunshot wounds." R.579.[1] Lieberman also testified that the muzzle of the gun was fired from two-and-one-half to three feet from Flomo. He opined that the entries were on the right side of his body, "including the shot that actually kill[ed] him, the one to his heart, the most immediately fatal one." R.595. Given the scenario of Flomo's sitting in the driver's seat of the car, Lieberman testified that the shots could only have come from the front passenger's side of the vehicle.

         Further, a firearms expert testified that two particles of unburnt gunshot residue were recovered from the front passenger's side armrest, indicating that the gun was within three feet of the passenger's side window.

         There was no physical evidence, however, linking Johnson to the crime scene. The Commonwealth offered two eyewitnesses, Brenda Bowens and Nora Williams, each of whom implicated Slaughter and Johnson and identified Johnson as the passenger's side shooter. The Commonwealth also put Slaughter on the stand and, when he refused to testify, introduced the statement he gave to police implicating Johnson. Because Slaughter's statement was admitted erroneously, and the remaining two identifications are central to our analysis as to harmless error, we recount their testimony in some detail.

         A. Brenda Bowens

         To support her crack addiction, Bowens worked as a prostitute in the area of 20th Street and Cecil B. Moore Avenue. Slaughter, whom she knew as "Muk, " and Johnson, whom she knew as "Juice, " were her drug dealers. R.647. She testified that she had known Johnson for "five, six years, " and Slaughter for "ten, twelve." R.647. In fact, she "would see them every day" because she "always bought crack from them." R.647-48.

         On the morning of the murder, Bowens reported being solicited by a man near the intersection of 20th and Cecil B. Moore. She declined because she intended to go into a nearby house to get high.[2] She crossed the street and reported the encounter to Slaughter and Johnson, who were walking up Cecil B. Moore Avenue. Bowens then continued to an all-night convenience store around the corner. Upon her return shortly after, she saw the same car that had solicited her before. As she approached the house, she "turned around" and "[saw] Muk and Juice. Muk's standing on the driver's side; Juice was on the other side, the passenger['s] side." R.632. She testified that Johnson was "leaning in the car." R.689. She stated:

I didn't "see" it happen, but I saw flashes and I heard a gunshot, and immediately I ran, because that's what I do. When you see two neighborhood drug dealing guys, you run, because, you know. I don't have to go into detail. But I ran and started banging on the door, [saying] "Let me the hell in."

         R.633. While banging on the door to be let in, she "glanced" behind her to "make sure that [she] was . . . out of harm's way." R.633. She then "heard another shot" and saw the "flash again." R.633. She testified that Johnson, at that point, was still standing at the passenger's side door. She then finally was able to enter the house.

         At trial, the prosecutor reviewed the entire episode using a demonstrative map of the intersection. Bowens identified the house she intended to smoke in as well as where other events occurred. Bowens also addressed her failure to come forward to the police initially:

Q. . . . When you went the second time to Homicide, after they're talking to you and you told them what you saw, what caused you to tell them that you saw this? What happened?
A. I was saying that my family was real concerned that I was in danger, someone was going to kill me and that I needed help.


         On cross-examination, Bowens was impeached with her "severe drug habit, " R.655, and criminal history. Bowens admitted to a prior conviction (for which she was sentenced to eleven-and-a-half to twenty-three months in jail), to being on probation, and to having a bench warrant out for her arrest when she gave her statement. She was also impeached with her failure to report what she saw to the police and her initial refusal to give a statement after she was picked up for questioning. Bowens disclosed that, during these interrogations, she was "promised" that she would be given help with her drug addiction.[3] R.663.

         Bowens's perception of the shooting was also impeached. While Bowens reported seeing Johnson leaning into Flomo's car, she did not see anything in his hands. Bowens admitted that she only glanced in the direction of the shooting for what defense counsel characterized as a "mini-second . . . a flash." R.687. Defense counsel also impeached her with her prior inconsistent statements about the exact location of Flomo's car in the intersection when the shooting occurred. Finally, the distance between the shooting and the crack house Bowens attempted to enter (and in the vicinity of which Bowens reportedly saw the shooting) was, defense counsel urged in his closing, approximately 600 feet.[4]

         On re-direct, the prosecutor attempted to rehabilitate Bowens on a number of points. He reviewed Bowens's identification of Johnson again:

Q. In terms of that car, and counsel has asked you where the car was back and forth. When you see the shooting, are you concentrating on where the car is?
A. No, not at all.
Q. What are you concentrating on?
A. Me getting away.
Q. And did you recognize the guys who did it?
A. Yes
Q. And who are they?
A. Juice and Muk.
Q. And is Juice here now?
A. Yes, sir.
Q. Point to Juice.
A. Right there (indicating)
Q. No doubt in your mind it was them, right?
A. That's a hard question. It was so many years ago, and I done been through so much, sir. I'm really honestly going to say that I am not really sure. I'm really honestly going to say that I'm not really sure. I been through so fucking much. I been through so much.
Q. And I know you've been through - Brenda, listen to me -
[DEFENSE COUNSEL]: Your Honor, may we have a break at this point?
[PROSECUTOR]: Look at me. No.
I'm asking the Court.
THE COURT: No. Well, let me see.
Are you all right? You all right?
(Witness crying.)
[DEFENSE COUNSEL]: Your Honor, perhaps we should take a break.
THE COURT: We're going to take a break.


         After a brief recess, Bowens testified that she was "very tired, " and agreed with the prosecutor that she was "emotionally drained" and "want[ed] to get this over with." R.731. She continued, however, and testified again that Slaughter and Johnson stood next to Flomo's car:

Q. Okay. Now, I'm going to ask you this: That morning when you were out there and you hear the shot, what do you see?
[A.] That morning when I was out there, I see Juice and Muk standing at the car.
Q. You sure of that?
A. Am I positive, a hundred percent positive? I just said I wasn't. You asked me did I have any doubt, and I just said it. I was just - I mean, I'm emotionally drained. You all asking me the same thing over and over and over again.
Q. When you made the statement to homicide, did you tell them the truth?
[A.] Yes.
Q. When you went to the preliminary hearing - remember it was just a judge, no jury, and I was there and asked you questions - did you tell that judge the truth?
A. Yes.
Q. When you were here in 2007 before that judge and another jury, did you tell this judge the truth?
THE COURT: I was the Judge.
Q. Are you telling us the truth now?
A. Yes.

R.732-34. The prosecutor then read portions of Bowens's prior consistent statements to the jury, which confirmed the essential details of her eyewitness account, including that Johnson stood on the passenger's side of Flomo's car.[5]

         Bowens also testified that she feared for her safety. She stated that she had to be "relocated" after giving her statement to the police.[6] R.649. The prosecutor also questioned whether persons in the courtroom might have threatened her:

Q. You said you were worried or not comfortable about certain people in this room. Are you afraid of the defendant's people and his family that are sitting in this room right now? A. I'm afraid of everything right now, you know. I'm afraid of everything right now. I'm very - yeah, very afraid of everything. Not only them, but everybody. It's like everybody out to get me. When this shit went down, everybody was out to get me. . . .
THE COURT: . . . You want to get off the stand; Is that correct?
THE WITNESS: Yes. I have a life. I'm just tired of being badgered. It's been five, four years I've been being badgered, badgered, badgered. The DA been badgering me, other people badgering me, everybody badgering me.

R.748-50. She was then briefly recrossed and redirected[7] before being excused.[8]

         B. Nora Williams

         The Commonwealth next called Nora Williams, who also placed Johnson at the passenger's side of Flomo's car during the shooting. Williams was also a prostitute who worked in the vicinity of 20th Street and Cecil B. Moore Avenue and who knew Bowens from having worked there.[9]Williams knew Johnson and Slaughter too and testified that she saw them every day on the block. Williams also purchased her drugs from them, sometimes several times a day.

         On the morning of the murder, Williams had just finished with a customer when she saw Bowens across the street "arguing" with a man in a car.[10] R.760. She then saw Bowens "walk away." R.761. She testified that Bowens "walked to [Slaughter and Johnson]" and "talked to them for a minute" before Bowens left the area. R.762-63. Then Williams saw "the car come back around" the block. R.764. When asked what happened next, she relayed the following:

Q. When you see the car on 20th, what happens?
A. That's when I seen Muk and Juice running towards the car.
Q. Okay. When they run towards the car, do they get to ...

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