Priester v. Vaughn

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

8-19-2004

Priester v. Vaughn Precedential or Non-Precedential: Precedential

Docket No. 03-2956 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation "Priester v. Vaughn" (2004). 2004 Decisions. Paper 366. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/366

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PRECEDENTIAL Thomas W. Dolgenos (Argued) Chief, Federal Litigation UNITED STATES COURT OF Ronald Eisenberg APPEALS FOR THE THIRD CIRCUIT Deputy District Attorney Law Division Arnold H. Gordon No. 03-2956 First Assistant District Attorney Lynne Abraham District Attorney BARRY PRIESTER, Philadelphia, PA 19102-1582 Appellant Attorneys for Appellees v. OPINION OF THE COURT DONALD T. VAUGHN; THE DISTRICT ATTORNEY OF SLOVITER, Circuit Judge. THE COUNTY OF PHILADELPHIA; This appeal arises from appellant THE ATTORNEY GENERAL OF THE Barry Priester’s 1991 state conviction of STATE OF PENNSYLVANIA first degree murder, two counts of aggravated assault, criminal conspiracy, and possession of an instrument of crime. Priester appeals the decision of the United On Appeal from the United States States District Court for the Eastern District Court for the Eastern District of District of Pennsylvania denying his Pennsylvania petition for a writ of habeas corpus. The (D.C. Civil No. 02-cv-00075) District Court had subject matter District Judge: Hon. Stewart Dalzell jurisdiction over Priester’s habeas corpus petition pursuant to 28 U.S.C. § 2254 and we have jurisdiction pursuant to 28 U.S.C. Argued May 4, 2004 §§ 1291, 2253. Before: SLOVITER, FUENTES and I. BECKER, Circuit Judges FACTS AND PROCEDURAL HISTORY (Filed: August 19, 2004) On May 19, 1990, Priester and Nathaniel Butler met Tracey Postell at the Johanna E. Markind (Argued) corner of 8th and Louden Streets in Philadelphia, PA 19102 Philadelphia. Priester told Postell that he was meeting a group of people to confront Attorney for Appellant the individuals who had “rolled” Darius Barnes – a mutual friend. Postell agreed to

accompany Priester and Butler to locate murder, two counts of aggravated assault, these individuals. Priester drove one car criminal conspiracy and possession of an while Barnes drove another. Two or three instrument of crime. They were tried other cars containing additional gang together in the Philadelphia Court of members joined the caravan. According to Common Pleas before a jury. During Postell’s trial testimony, at one point along testimony at trial, Postell attempted to the way Priester pulled alongside Barnes’ recant the story he told the police and car and said, “[w]hen we get up there, no stated that he had lied to the police and questions asked, start busting.” Trial Tr. at was asleep in the car when the incident 190 (Sept. 13, 1991). occurred. Having been forewarned by defense counsel about this change, the The cars arrived at the Belfield prosecution sought the trial court’s Recreational Center in North Philadelphia approval to admit Butler’s previous and Barnes began searching the statement, which the trial court granted playground for their targets. Once Barnes subject to redaction. Thereafter, a identified the individuals who “rolled” redacted version of the prior statement him, Priester removed a gun from his made by Butler, describing the incident, jacket and handed it to Butler. Butler fired was introduced at trial. This redacted several shots into the crowd. Shots were statement replaced Priester’s name, and all also fired from the other vehicles. Soon other names, with phrases such as “the after the shooting, Priester and the others other guy.” App. at 91-97. At the drove away from the scene. As a result of conclusion of the trial, the jury convicted the shooting, Terrence Lucan died, and Priester as well as Butler on all counts. At Ronald Holliman and Walter Jefferson the sentencing phase, the jury returned a sustained significant injures. sentence of life imprisonment for each On June 7, 1990, Philadelphia defendant on the murder convictions and Homicide Detective Frank M cGouirk the court imposed sentences on the questioned Postell about the shooting. At remaining counts, to run concurrently for that time, Postell, who subsequently pled both defendants. guilty in a negotiated plea, detailed the After the trial court denied post- factual scenario surrounding the shooting verdict motions, Priester appealed to the as well as Priester’s and Butler’s Pennsylvania Superior Court, contending involvement. Butler was then arrested and that the Commonwealth breached its questioned. He stated that Priester was in agreement not to introduce Butler’s prior the car with him and Postell, and that statement and challenging the sufficiency Butler shot twice into the crowd with a .38 of the redaction, the admission of Postell’s caliber pistol. earlier statement as substantive evidence, After further investigation, Priester and the sufficiency of the evidence to and Barnes were indicted on first degree convict him of first degree murder. The

court rejected these claims. The accomplice liability. 1 We now consider Pennsylvania Supreme Court denied these issues on appeal. allocatur. Commonwealth v. Priester, 634 II. A.2d 220 (Pa. 1993). Priester then filed a petition for collateral review under the DISCUSSION Pennsylvania Post-Conviction Relief Act, A. Standard of Review 42 Pa. Cons. Stat. § 9541 et seq. (2003) (“PCRA”), which was denied by both the At the outset, we set forth our trial court and the Superior Court. standard of review. Under the Anti- Terrorism and Effective Death Penalty Act Priester next petitioned for allocatur (“AEDPA”): in the Pennsylvania Supreme Court of three issues. He argued that Butler’s An application for a writ of statement was insufficiently redacted in habeas corpus on behalf of a violation of Bruton v. United States, 391 person in custody pursuant U.S. 123 (1968); that the trial court erred to the judgment of a State because it admitted Postell’s prior court shall not be granted inconsistent statements as substantive with respect to any claim evidence; and that the jury instructions that was adjudicated on the regarding accomplice liability were merits in State court deficient. The Pennsylvania Supreme proceedings unless th e Court denied allocatur. adjudication of the claim – Thereafter, Priester filed a pro se petition for a writ of habeas corpus in the 1 Counsel for Priester attempts to District Court, which was amended after add an ineffectiveness of counsel claim the appointment of new counsel. The based on a failure to object to the matter was referred to a Magistrate Judge, admission of the redacted statement. See who issued an opinion recommending that Appellant’s Br. at 20-24. However, the Priester’s claims be denied. The District District Court certified only the two Court appro ved a nd ad opted the issues set forth above for appeal, App. at Magistrate Judge’s recommendation, but 7, and we denied Priester’s request to certified for appeal two of the many claims certify other issues on September 23, raised by Priester: the claim that the 2003. Therefore, we decline to discuss admission of Butler’s redacted statement this issue herein. In any event, in his violated the Confrontation Clause of the reply brief Priester states that the issue is Sixth Amendment, and the claim that trial properly presented as a Confrontation counsel was ineffective because of his Clause claim. Appellant’s Reply Br. at 2 failure to object to the jury instruction on n.1. We decline to discuss the due process claims related to the arguments made on appeal for the same reason.

(1) resulted in a decision Supreme Court of the United States have that was contrary to, or made clear that as long as the reasoning of involved an unreasonable the state court does not contradict relevant application of, clearly Supreme Court precedent, AEDPA’s established Federal law, as general rule of deference applies. Early v. determined by the Supreme Packer, 537 U.S. 3 (2002); Woodford v. Court of the United States . Visciotti, 537 U.S. 19 (2002). In Early, ... the Supreme Court held that qualification for AEDPA deference “does not require 28 U.S.C. § 2254(d) (emphasis added). citation of our cases – indeed, it does not Priester argues that because the even require awareness of our cases, so Pennsylvania Superior Court cited only long as neither the reasoning nor the result Pennsylvania law with no reference to of the state court decision contradicts federal law, we need not apply AEDPA’s them.” Early, 537 U.S. at 8 (emphasis in deferential standard of review. In granting original). Similarly, in Woodford, the a certificate of appealability, the District Supreme Court held that the California Court stated it believed that the deferential Supreme Court’s “shorthand reference” to standard was applicable, but cited in a the ineffective assistance of counsel footnote this court’s opinion in Everett v. standard, while imprecise, did not render Beard, 290 F.3d 500 (3d Cir. 2002), which the decision unworthy of deference. held otherwise. We need not dwell on this Woodford, 537 U.S. at 24; see also Bell v. issue2 because subsequent opinions of the Cone, 535 U.S. 685, 698 (2002) (applying the deferential AEDPA standard of review where the state court had relied only on its 2 We note that in Everett, the accomplice liability instruction was patently erroneous as a matter of law, as time of Everett’s trial, but we held that the trial court peppered its instructions Everett’s trial counsel was ineffective for with legal admonitions such as, “[a] failing to object to an instruction that killing is willful and deliberate if the allowed a juror to ascribe an defendant and/or his accomplice . . . accomplice’s intent to the defendant and consciously decided to kill the victim . . . that a Pennsylvania Superior Court .” Everett, 290 F.3d at 504 (emphasis in decision filed well before Everett’s trial original). Instead of objecting, trial should have given counsel a basis to counsel actually “complimented the object. The Everett opinion noted that judge on the fairness of these instructions the Pennsylvania Supreme Court after the jury left the courtroom.” Id. at thereafter specifically held that for an 505. The Commonwealth argued that accomplice to be found guilty, s/he must accomplice liability for first-degree have intended that the victim be killed. murder was not clearly established at the Id. at 512-14.

own precedent to reject the petitioner’s Confrontation Clause of the Sixth ineff ectiv e assistance of counsel Amendment.” Id. at 126. The Court noted allegation); Rompilla v. Horn, 355 F.3d that some courts had redacted the 233 (3d Cir. 2004) (applying AEDPA statement to avoid the Sixth Amendment deference to Pennsylvania co urt’s issues. See id. at 134 n.10 (“Some courts determination of petitioner’s allegation of have required deletion of references to ineffective assistance of counsel despite code fend ants whe re practicable.”). the court’s failure to expressly cite to the Thereafter, the courts generally followed Strickland standard). the practice of redacting co-defendants’ statements in order to eliminate all explicit Accordingly, we hold that the references to other defendants on trial deferential standard of AEDPA applies before those statements were admitted into even if the state court does not cite to any evidence. federal law as long as the state court decision is consistent with federal law. Priester argues that the admission of Butler’s redacted statement violated his B. Bruton Issue Sixth Amendment right to confrontation. In order to protect a defendant’s The issue arose in the instant case because Sixth Amendment rights to confrontation Postell gave testimony at trial that differed and cross-examination, trial courts that from the statements that he gave to police. admitted statements of non-testifying co- The state moved to admit Butler’s defendants would routinely instruct jurors statement as evidence of B utler’s that the statements were not to be involvement in the shooting. The statement considered evidence against the defendant was redacted to replace all references to at trial. In Bruton, the Supreme Court Priester and other participants in the recognized the inadequacy of such shootings with words such as “the other instructions, stating that “there are some guy,” “someone,” “someone else,” “the contexts in which the risk that the jury will guy,” and “another guy.” App. at 91-97. not, or cannot, follow instructions is so In relevant part, the redacted statement great . . . that the practical and human read at trial was: limitations of the jury system cannot be A: Well like 15 guys came ignored.” Bruton, 391 U.S. at 135. and we were all sitting on The Court held that “because of the the corner of 8th and substantial risk that the jury, despite Louden Sts. It was like 4 instructions to the contrary, looked to the something in the afternoon. incriminating extrajudicial statements in Several guys came up to the determining petitioner’s guilt, admission corner some were walking of [the co-defendant’s] confession in this and others were in cars. joint trial violated petitioner’s right of They started fighting and cross- exam ination secured b y the shooting at anybody who

was out there. . . . jurors: Somebody gave one of the A statement made by a guys a .38 caliber gun . . . . defendant before trial may Then another guy shot be considered as evidence twice. After the first guy but only a ga inst the shot they pulled off and defendant who made the after the other two shots I statement. You may not pulled off. consider one defendant’s .... statement as evidence against the other defendant[ Q: In what car was the guy ].... who shot first? Trial Tr. at 416 (Sept. 17, 1991). A: He was the passenger in the front seat of the brown Priester argues that the admission of Toyota. That was the first this redacted statement violated the Sixth car. Amendment because replacing Priester’s name with varying phrases and pronouns Q: How many were in the did not adequately shield his identity, as car with him? other trial testimony made clear who was A: Two other guys. in the second car. During Postell’s testimony, he identified the occupants of Q: How many were in the his car as being “Barry [Priester] and Nate second car? [Butler].” App. at 108 (quoting Trial Tr. at A: I was the driver and two 182 (Sept. 13, 1991)). Furthermore, in his others. opening statement, the prosecutor claimed, Q: How many shots did you in the first of those cars was see fired from the second an individual by the name of car? Darius Barnes. In another c a r, t h e d e f e ndants , A: Two. Nathaniel Butler and Barry .... Priester, were riding along with an individual named Q: Who did the guy in your Tracey Postell. car shoot at? App. at 106 (quoting Trial Tr. at 20 (Sept. A: He just put out the 12, 1991)). window and shot twice. He wasn’t looking. From Postell’s testimony and the prosecutor’s opening statement, which is App. at 91-93. The trial court instructed not evidence, the jury could have inferred

that the “other guy” in Butler’s statement U.S. 185 (1998), and this court’s decision was Priester. But this inference is not a in United States v. Richards, 241 F.3d 335 foregone conclusion. There were at least (3d Cir. 2001), clarify the rule set forth in fifteen perpetrators in various cars Richardson in a manner that supports his involved in the shooting. The redacted argument. We find this unpersuasive. In statement by Butler is unclear as to the the first place, both decisions were people in the first car, in the second car, announced after Priester’s merits appeal who was shooting when and from which was heard in the Pennsylvania Superior car. This is because the trial court Court and it did not act unreasonably in removed not just references to Priester, but failing to predict the Supreme Court’s removed references to every name in the decision in Gray. Moreover, the decision statement, making the statement difficult in Gray, even if applicable, does not to follow. support Priester’s contention. The Court explained in Gray that it “granted certiorari Subsequent to Bruton, the Supreme in order to consider Bruton’s application to Court held that the introduction of the a redaction that replaces a name with an redacted statement of a nontestifying co- obvious blank space or symbol or word defendant was not unconstitutional. It such as ‘deleted.’” Gray, 523 U.S. at 188. rejected the contextual implication It then held that such redactions were argument Priester makes here. It stated constitutionally impermissible. In that where ascertaining the identity of a Richardson, the issue was “whether Bruton co-defendant in a redacted statement requires the same result when the requires an inference drawn from linking codefendant’s confession is redacted to other evidence to the statement, the risk omit any reference to the defendant, but that the jury cannot follow limiting the defendant is nonetheless linked to the instructions is not sufficiently substantial confession by evidence properly admitted to violate the S ixth Amendment. against him at trial.” Richardson, 481 U.S. Richardson v. Marsh, 481 U.S. 200, 208 at 202. The Court held that the admission (1987) (“Where the necessity of such of the redacted confession was not linkage is involved, it is a less valid unconstitutional. generalization that the jury will not likely obey the instruction to disregard the The Court in Gray explained that evidence.”). “In short, while it may not the key difference between Gray and always be simple for the members of a jury Richardson was the extent to which the to obey the instruction that they disregard statement’s alterations directly connected an incriminating inference, there does not the statement to the defendant, as exist the overwhelming probability of their “nicknames and specific descriptions fall inability to do so . . . .” Id. inside, not outside, Bruton’s protection.” Gray, 523 U.S. at 195. The reasons given Priester argues that the Supreme in Gray for holding such redactions Court’s decision in Gray v. Maryland, 523

impermissible – such as “an obvious blank Sixth Amendment. will not likely fool anyone,” “the obvious C. Jury Instruction Issue deletion may well call the jurors’ attention specially to the removed name,” and that Priester argues that the District “a blank or some other similarly obvious Court erred in concluding that his trial alteration” are “directly accusatory,” Gray, attorney’s failure to object to the jury 523 U.S. at 193-94 – do not apply to the instructions did not constitute ineffective instant case. There are no such assistance of counsel. The parameters of “nicknames,” descriptions or phrases that the Sixth Amendment right of a criminal directly implicate Priester in the instant defendant to receive effective assistance of case. counsel were set forth in Strickland v. Washington, 466 U.S. 668, 686 (1984). A Finally, in this court’s Richards defendant claiming a violation of this right opinion, on which Priester relies, there must make a two-part showing: were only three people involved in the case, one of whom was the confessor and First, the defendant must one of whom was the co-defendant show that c oun sel’s Richards, and the word “friend” was performance was deficient. substituted for Richards’ name. Richards, This requires showing that 241 F.3d at 341. As the prosecutor called counsel made errors so the co-defendant’s mother to testify that serious that counsel was not the confessor and co-defendant Richards functioning as the “counsel” were “friends,” the word “friend” guaranteed the defendant by unequivocally pointed to Richards. In the Sixth Amendment. contrast, in this case there were at least Second, the defendant must fifteen perpetrators involved in the show that the deficient shooting, and the phrases “the other guy” performance prejudiced the or “another guy” are bereft of any defense. This requires a innuendo that ties them unavoidably to show ing that coun sel’s Priester. In Richards, the replacement was errors were so serious as to tantamount to an explicit reference to the deprive the defendant of a co-defendant; the same cannot be said for fair trial, a trial whose result the redaction in the instant case. is reliable. Because the trial court redacted the Id. at 687. statement carefully, and because it gave “Judicial scrutiny of counsel’s appropriate limiting instructions before the performance must be highly deferential” to admission of the statement and during jury ensure “the wide latitude counsel must instructions, the District Court did not err have in making tactical decisions.” Id. at in holding that the admission of Butler’s 689. “[A] court must indulge a strong redacted statement did not run afoul of the

presumption that counsel’s conduct falls A defendant does not within the wide range of reasonable become an acco mplice professional assistance . . . .” Id. merely by being present at the scene or merely by The portion of the trial judge’s jury knowing of the crime. He is instruction which Priester claims was an accomplice if, with the misleading was: intent of promotion or [M]urder of the first degree facilitating commission of is a criminal homicide the crime, he solicits or committed with a specific commands or encourages or intent to kill. An intentional requests another person to killing is a killing by means commit it or if he aids or of poison or by lying in wait agrees to aid or attempts to or by any other kind of aid the other person in willfu l, deliberate and planning or committing it. premeditated act. You may fin d the Therefore, in order to find defendants guilty of a crime the defendants guilty of on the theory that they were murder in the first degree, an accomplice as long as you must find that the you are satisfied beyond a killing was a willful, reasonable doubt that the deliberate and premeditated crime was committed and act. the defendants were an accomplice of the persons .... who committed it. Members of the jury, you Trial Tr. at 564-65, 577-78 (Sept. 19, may find a defendant guilty 1991). of a crime without finding that he personally engaged Priester argues that although he was in the conduct required for charged with three different degrees of commission of that crime or homicide, including first degree murder even that he was personally which requires a specific intent to kill, present when the crime was Smith v. Horn, 120 F.3d 400, 422 (3d Cir. committed. 1997), “the import of the instruction regarding the requirement of specific A defendant is guilty of a intent to kill was diluted by the court’s crime if he is an accomplice instr uctions regarding acco mp lice of another person who liability.” Appellant’s Br. at 25. As the commits that crime. District Court stated:

Priester claims that 1367, 1384 (Pa. 1991) (same). the instruction to the jury Bound by the state court’s enabled the jury to find him determination that the instruction at issue guilty as an accomplice to comported with state law, it is evident that first-degree murder even if Priester cannot satisfy the first component he did not have the intent to of a viable ineffective assistance of kill. This instruction, c ouns e l claim – that c oun sel’ s Priester continues, violated performance was deficient. Thus Priester Pennsylvania law – which cannot overcome the “strong presumption” makes specific intent to kill that his counsel’s conduct fell outside the an essential element for “wide range of reasonable professional accomplice liability to first assistance.” Strickland, 466 U.S. at 689. degree murder – and burdened his fundamental III. right under the Due Process CONCLUSION Clause to be convicted only upon proof beyond a Applying AEDPA’s deferential reasonable doubt of every standard in reviewing Priester’s habeas element of the offense. petition, we hold that the District Court did not err in concluding that the admission of App. at 20 (footnotes omitted). On state the redacted statement comported with the collateral review, the Pennsylvania requirements of the Sixth Amendment and Superior Court held that the instructions that trial counsel’s failure to object to the were correct as a matter of state law. App. accomplice liability instruction did not at 71. constitute ineffective assistance of Federal courts reviewing habeas counsel. claims cannot “reexamine state court For the reasons given above, we determinations on state-law questions.” will affirm the District Court’s order Estelle v. McGuire, 502 U.S. 62, 67-68 denying the petition for a writ of habeas (1991). This is particularly true in the corpus. instant case because the issue of a p p r o priate jury instr u c t i o n s on accomplice liability in first-degree murder trials has been squarely addressed by the P e n n s y lv a n i a S u p r e m e C o u r t . Commonwealth v. Thompson, 674 A.2d 217, 222-23 (Pa. 1996) (upholding accomplice liability instructions nearly identical to those quoted above); Commonwealth v. Chester, 587 A.2d