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Watts v. Mahally

United States District Court, E.D. Pennsylvania

March 27, 2017

JOHN G. WATTS, Petitioner,
LAWRENCE MAHALLY, et al., Respondents.


          C. Darnell Jones, II J.

         Petitioner John G. Watts seeks habeas relief, alleging violations of his constitutional rights in the course of a state trial that ended in a prison sentence of 24.5 to fifty years and two months for convictions stemming from a $100 robbery. After careful consideration of the state court record, this Court finds that the trial judge's decision to instruct the jury with an obviously irrelevant, inadmissible and highly prejudicial fact dehors the record, over defense counsel's objection and in deprecation of his proper closing argument, deprived Petitioner of his Sixth Amendment right to a fair trial and effective assistance of counsel. Because the trial court's error is per se prejudicial under clearly established federal law and, in any event, had a substantial and injurious effect or influence on the jury's verdict, this Court grants the writ of habeas corpus and directs the Commonwealth to release Petitioner from custody unless the state court holds a new trial within the next six months.

         Relevant Background

         According to the state court record, Watts and his alleged co-conspirator, Dontay Hughes, robbed Nicholas Harris of $100 at a train station in the Germantown section of Philadelphia around 4:15 p.m. on July 28, 2007. Harris testified the robbery involved two separate encounters. The first time Watts and Hughes approached Harris, Watts demanded $20, took Harris' cell phone and made a phone call. Harris asked whether he would be left alone if he complied, and Watts responded “yes.” Harris gave Watts $20 and Watts returned the cell phone. The assailants left to a different area of the station. N.T. 11/13/08 at 38:1-40:3.

         A few minutes passed. Watts and Hughes approached Harris again, each placing a hand on one of Harris' shoulders. Watts demanded the rest of Harris' belongings, and Harris complied by turning over his wallet. Watts took the remaining $80 and returned the wallet. Initially, Harris claimed Watts and Hughes left after taking the money. Harris went home without further incident and called the police. He said nothing about a gun or any threats of harm. Id. at 42:22-44:2. However, after the prosecutor asked Harris whether the assailants were armed, Harris testified he saw a bulge on Hughes' hip, which he believed was a handgun. And, after the prosecutor asked if the assailants had said anything about a gun, Harris testified that Hughes claimed to have a “burner” on the side of his hip and threatened to shoot him “in front of everybody” if he made a scene. Id. at 44:2-51:6. On cross-examination, Harris confirmed bystanders had witnessed the incident without fleeing. Id. at 77:9-78:15. He also admitted he never saw a firearm. Id. at 82:25-84:2.

         Two police officers responded to Harris' call and, with his assistance in the police vehicle, they located the alleged perpetrators about two blocks from the scene of the incident. Upon seeing Harris in the back of the police car, Watts and Hughes fled in separate directions. Id. at 56:12-61:4. The officer pursued Watts who entered an abandoned building and jumped out of a second story window. After a brief struggle, the officer subdued Watts and transported him to a hospital and then to the local police station for arraignment. Commonwealth v. Watts, 619 EDA 2009, slip op. at 2-3 (Pa. Super. Ct. Apr. 21, 2010). Hughes was purportedly apprehended at a later date. No handgun was ever recovered from either assailant. See id. at 21.

         Once in custody, Watts called Harris' cell phone. Harris recognized Watt's voice. He identified himself as “the boy that robbed you, ” and twice said, “[Y]oung boy, you don't want to do this.” N.T. 11/13/08 at 65:6-66:12. Watts changed his tone and added, “I can get your money back, but, actually, from the bottom of my heart, please don't do this, I got ten years back time.” Id. at 66:18-22. According to phone records, Watts tried to call Harris two more times from county prison but the calls failed. Watts, 619 EDA 2009, at 2-3.

         Watts was charged with first-degree robbery, criminal conspiracy, terroristic threats, intimidating a witness, criminal use of a communication facility, carrying a firearm without a license and possession of an instrument of crime. The district attorney offered Watts a negotiated plea, including a recommended sentence of seven to twenty years, but Watts rejected it and proceeded to trial. See Commonwealth v. Watts, No. 3157 EDA 2013, 2015 WL 7454021, at *1 (Pa. Super. Ct. Mar. 4, 2015).

         The Honorable Chris R. Wogan of Philadelphia's Court of Common Pleas presided over the jury trial. During closing argument, defense counsel focused on whether the prosecution could establish beyond a reasonable doubt that Watts “threaten[ed] to cause serious bodily injury” as required for first-degree robbery since there had been no actual bodily injury in this case.[1] N.T. 11/14/08 at 37:13-25. Defense counsel questioned Harris' credibility and reminded the jury that Harris' testimony had a “tremendous inconsistency” insofar as he had said “nothing” about the “bulge” until after the prosecutor “rehabilite[d] . . . or prompt[ed]” him, as if that recollection was merely an “afterthought.” Id. at 38:12-39:5. Defense counsel argued: “This is what reasonable doubt consists of; inconsistencies in the testimony of the witnesses.” Id. at 39:1-4. Counsel pointed out that none of the bystanders appeared in court to corroborate Harris' testimony, and that Harris' own recollection suggested they had not been frightened by the incident. Id. at 39:16-40:20. He argued, “What does that tell you as to what was going on? That, basically, again, is a reasonable doubt as to whether there was even a bulge or there was even anything said about the shooting, because those people would have moved away.” Id. at 40:15-20. Counsel then questioned whether Harris had ever felt “threatened” since he did not call the police until after calling his brother and going home first. He argued, “If you were just threatened, you would be calling the police there . . . but [Harris] doesn't act like you would think a reasonable victim or complainant would.” Id. at 41:2-12. Lastly, counsel emphasized that there “was never any gun found in this case; none, none, none.” Id. at 46:6-7 (emphasis added). He argued, “Don't you think if they would have found a gun from Dante Hughes [sic] . . . that the gun would have been here today?” Id. at 45:19-46:3. He contended this was “another reason to believe that there is no gun in this case; that a bulge is a bulge.” Id. at 46:7-9 (emphasis added).

         At sidebar, the prosecutor complained that defense counsel had “made a big deal about the fact that no gun was recovered from Dante Hughes [sic].” Id. at 54:25-55:10. The prosecutor claimed that statement “[was] not true” because a .22 caliber rifle had been recovered from Hughes pursuant to his arrest for a “second robbery where a riffle was used.” Id. The prosecutor believed she should be allowed to disclose that information to the jury during her summation although she had chosen not to introduce the rifle into evidence. Id. at 55:12-23. Neither defense counsel nor the court was aware of the alleged rifle. Id. at 55:24-56:10.

         Instead of overruling the prosecutor's objection, Judge Wogan offered to instruct the jury as to the existence of the rifle in an attempt to “keep this as neutral as possible.” Id. at 56:12. Defense counsel objected, “That is going to be extremely prejudicial. There is a bulge.” Id. at 56:18-19. The court disagreed, “I don't think it hurts your client, but we can't leave [the jury] with an impression that is not true.” Id. at 56:22-24. Defense counsel argued his statement was true insofar “as the evidence that came in” did not include any reference to a rifle. Id. at 56:25-57:2. Judge Wogan acknowledged as much: “It doesn't sound like a rifle was used by Dante Hughes [sic] in this courtroom committing this crime.” Id. at 58:20-22 (emphasis added). Nevertheless, believing “no one [was] going to think a rifle was used in this crime, ” he overruled defense counsel's objection and instructed the jury as follows:

Ladies and gentlemen, you remember what I told you, that closings and even questions by attorneys may be helpful guides, but they don't constitute evidence.
In this case - I should say in this situation, the co-defendant, Dante Hughes [sic], there was no handgun recovered from Dante Hughes, that is determined that way and that is correct. There was, however, a rifle that was recovered from Dante Hughes. Dante Hughes is not on trial here, but you heard him mentioned as a co-defendant in this case. So I think I have an obligation to make sure that you know that there are no misimpressions left with you. And no one consciously is misleading you. These things happen during trials.

Id. at 59:4-61:23 (emphasis added). Defense counsel was not afforded the opportunity to comment on the instruction. Id. at 60:22-61:6. After the prosecution's closing argument, defense counsel moved for a mistrial due to the rifle instruction, but Judge Wogan denied the motion. Id. at 85:21-23. Defense counsel also moved for a charge of second-degree robbery, [2] but that motion was denied as well. Id. at 115:21-116:8. The jury convicted Watts of all charges except carrying a firearm without a license and possession of an instrument of crime. Id. at 120:10-121:15.

         On January 20, 2009, Judge Wogan sentenced Watts to 24.5 years to fifty years and two months in prison. N.T. Sentencing Hr'g 1/20/09 at 49:10-11. In computing the sentence for the robbery and criminal conspiracy, the court added a deadly weapon enhancement. Id. at 44:4-6; 45:4-6. The court reasoned that the enhancement applied in cases where a defendant was in close proximity to a co-conspirator carrying a gun. Id. at 23:4-10. And, even though there was never a finding that either of the alleged perpetrators possessed a gun during the robbery, the court deduced “there was a gun used in this case” because “there was a bulge.” Id. at 29:6-10. Furthermore, the court found it relevant that Watts had been “convicted of a robbery with fear of serious bodily injury, ” even though he had been acquitted of the firearm charges. Id. at 23:17-21. The weapon enhancement did not impact the sentence for robbery. Because this robbery was a second strike against Watts, the second strike rule mandated a minimum of ten to twenty years, far above the guideline range for the robbery even with a weapon enhancement. Id. at 44:2-17. The second strike rule did not apply to the other convictions. Thus, the weapon enhancement affected the sentence for criminal conspiracy, putting the guidelines range at forty-five to fifty-seven months (3.75 to 4.75 years), plus or minus twelve months, due to Watts' offense gravity score of nine and prior record score of four. Id. at ...

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