Opinion
Civil Action No. 05-3436.
September 30, 2005
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Correctional Institution at Huntingdon, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
FACTS AND PROCEDURAL HISTORY:
On August 16, 1999, after a jury trial before the Honorable William R. Carpenter, Crawford was convicted of third degree murder, aggravated assault, and possession of an instrument of crime. The charges arose from the March 14, 1998 shooting of Bill Holmes on Corson Street in Norristown. Based on the trial testimony, the state courts found that Crawford murdered Holmes because he had previously shot and wounded Crawford. Crawford waited outside the victim's home and shot him three times when he arrived. The evidence against Crawford included: eyewitness testimony describing the jacket he was wearing — a jacket that when tested had gun residue on it; testimony that Crawford had purchased the murder weapon prior to the shooting; and testimony from a friend describing Crawford as nervous and shaken shortly after the murder.
On September 30, 1999, Crawford was sentenced to an aggregate term of 22½ — 45 years' imprisonment. Crawford filed a direct appeal, claiming the Commonwealth failed to turn over exculpatory evidence, that he should have been permitted to present the allegedly exculpatory evidence as surrebuttal, and that he should have been permitted to reopen his case to present the allegedly exculpatory evidence. Crawford also argued that the trial court impermissibly failed to give a jury charge on self-defense and heat of passion. On July 27, 2000, the Superior Court affirmed the judgment of sentence. Commonwealth v. Crawford, 3219 EDA 1999. The Pennsylvania Supreme Court denied Crawford's request for allowance of appeal on February 15, 2001.Commonwealth v. Crawford, 646 M.D. Allocatur Dkt. 2000.
On April 20, 2001, Crawford filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act, ("PCRA"), 42 Pa.C.S.A. §§ 9541-9551. The PCRA Court appointed counsel and counsel filed an amended petition. On October 19, 2001, the petition was denied. On appeal, the Superior Court remanded the case, finding that the petitioner had not received proper notice of the intent to dismiss the PCRA petition.
With the assistance of counsel, Crawford filed an amended PCRA petition. After conducting an evidentiary hearing, at which trial counsel testified, the PCRA Court denied the petition. On appeal to the Superior Court, Crawford presented numerous claims of ineffective assistance of trial counsel. On August 2, 2004, the Superior Court affirmed the denial of PCRA relief. Commonwealth v. Crawford, 2974 EDA 2003. It does not appear that Crawford sought discretionary review in the Pennsylvania Supreme Court.
Crawford filed this petition for habeas corpus on April 27, 2005, in the United States District Court for the Middle District of Pennsylvania. The case was subsequently transferred to our court for disposition. In his petition and memorandum of law, Crawford presents the following claims:
1. Ineffective assistance of counsel for failing to litigate the motion to suppress the Petitioner's statement;
2. Ineffective assistance of counsel for advising the petitioner not to testify;
3. Ineffective assistance of counsel for failing to object to the testimony of Richard DeSipio;
4. Ineffective assistance of counsel for failing to object to the authentication of a letter;
5. Ineffective assistance of counsel for failing to object to the Prosecutor's reference to the petitioner's prior incarceration;
6. The Commonwealth failed to turn over exculpatory evidence;
7. The petitioner was denied due process when the court failed to declare a mistrial.
Because Crawford properly presented all of his claims to the state court in either his direct or collateral appeals, the claims are exhausted for purposes of 28 U.S.C. § 2254. Therefore, we will proceed to address the merits of Crawford's claims.
DISCUSSION :
In reviewing Crawford's claims, we are guided by the deferential standard contained in 28 U.S.C. § 2254(d), which permits the federal court to grant a writ only if the state court's decision was contrary to or an unreasonable application of federal law or an unreasonable determination of the facts. Because we find that the state courts' adjudication of Crawford's claims was consistent with the Supreme Court's precedents and did not involve an unreasonable determination of the facts, we will recommend that the petition be denied.
A. Ineffective Assistance of Counsel
In his first five claims, Crawford alleges that his counsel was ineffective. Such claims are governed by the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984), in which the Court held that a petitioner must establish both, that his counsel's performance was deficient, and that the deficient performance prejudiced the defense. Id. at 687. In order to establish prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's errors, the outcome of the trial would have been different. Id. Thus, the Third Circuit has held that counsel cannot be deemed ineffective for failing to present a meritless argument at trial or bring a meritless claim on appeal. Parrish v. Fulcomer, 150 F.3d 326, 327 (3d Cir. 1998).
In his first claim, Crawford asserts that counsel was ineffective for failing to attempt to suppress the statement Crawford gave to the police on March 18, 1996, in which Crawford admitted that he was at the scene of the shooting and that he had a gun. (N.T. 8/11/99, 8-9). Additionally, in the statement, Crawford described what he was wearing the night of the shooting, a description which matched that given by eyewitnesses to the shooting, describing the shooter. (N.T. 8/9/99, 200-201; 8/10/99, 235-237; 8/11/99, 11-12). In his collateral appeal, Crawford claimed that the statement should have been suppressed because it was taken during an illegal custodial interrogation. The PCRA Court found that Crawford was not "in custody" at the time he gave the statement. Therefore, there was no basis to seek the suppression of the statement and counsel could not be deemed ineffective for failing to do so.
According to Crawford's statement, he was went to Corson Street to kill Earl Jackson, who had previously shot Crawford. (N.T. 8/11/99, 8). He went to Bill Holmes' address because, according to Crawford, he had been told that Jackson intended on robbing Mr. Holmes. (N.T. 8/11/99, 9).
In Yarborough v. Alvarado, 541 U.S. 652 (2004), the Supreme Court revisited the issue of custodial interrogations — this time in the context of a habeas corpus petition. After reviewing the clearly established law, the Court held that Miranda warnings are required when a person was "taken into custody or otherwise deprived of his freedom of action in any significant way." Yarborough, at 661 (quotingMiranda v. Arizona, 384 U.S. 436, 444 (1966)). Custody is to be determined "based on how a reasonable person in the suspect's situation would perceive his circumstances." Yarborough, at 662. The Court instructed that "[c]ourts must examine `all of the circumstances surrounding the interrogation' and determine `how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action.'" Id. at 663 (quoting Stansbury v. California, 511 U.S. 318, 323 (1994)). Thus, in Thompson v. Keohane, 516 U.S. 99 (1995), the Court adopted the following test:
Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.Yarborough, at 663 (quoting Thompson, at 112).
At the PCRA hearing, Crawford testified that he voluntarily accompanied a detective to the police station. He was advised that he was not under arrest and was free to leave, which was consistent with information in the statement Crawford gave to the police. (N.T. 8/11/99, 7-8; 8/22/03, 7, 22). He stated that there was an exit about 25-30 feet from where he was sitting. (N.T. 8/22/03, 8, 22). After an hour and a half, Crawford signed a statement. (N.T. 8/22/03, 10). All of these facts weigh heavily against a finding that Crawford was in custody.
Additionally, trial counsel testified at the PCRA hearing. Counsel stated that Crawford went to the police station to explain his "dis-involvement" with the shooting. (N.T. 8/22/03, 30). According to counsel, Crawford had told him that he went to the police station voluntarily, he was not threatened or coerced, and knew that he could leave at any time. (N.T. 8/22/03, 30-31). Based on all the evidence presented at the PCRA hearing, we find that the state courts' determination of the issue was not unreasonable. Because Crawford was not in custody at the time he gave the statement, there was no basis to seek its suppression and counsel cannot be deemed ineffective for failing to file a meritless motion. See Parrish, supra.
Crawford next claims that counsel was ineffective for advising Crawford not to testify. According to Crawford, counsel explained to him that the District Attorney could use his prior criminal history against him. The state courts rejected this claim, finding Crawford's version of the facts incredible.
According to trial counsel, who testified at the PCRA hearing, although he explained the pros and cons with regard to taking the stand, he left the decision to Crawford whether or not he chose to testify. In discussing the benefits and detriments of taking the stand, counsel explained that his greatest concern was the many statements that Crawford had given to various people. Counsel expected the prosecution would use Crawford's many statements against him by "grilling" him on changes in the story. (N.T. 8/22/03, 35-36). Counsel explained that, at no time, did he advise Crawford not to testify based on his prior record because none of his prior arrests would have been admissible.
He could not have made the decision not to testify based on me saying, "Look, your prior history, I guess, criminal arrests, would come into the record," because, to my knowledge, he had no crimen falsi arrest that would be admissible anyway. And, so, that would not be something to keep him from testifying.
(N.T. 8/22/03, 35). The state courts found this testimony from counsel credible, and we have no reason to overturn the state courts' credibility finding.
Crawford's next claim is that counsel was ineffective for failing to object to the testimony of Richard DeSipio. During the trial, Mr. DeSipio, an Assistant District Attorney, was called by the Commonwealth as a rebuttal witness to impeach the testimony of Sandra Welsh, who had previously testified. In her testimony, Ms. Welsh implicated Michael Crawford, the petitioner's brother, in the murder of Mr. Holmes, stating that Michael Crawford had told a mutual friend that he, not the petitioner, killed Mr. Holmes. (N.T. 8/12/99, at 57). Mr. DeSipio testified that he had been in the hallway just prior to Ms. Welsh's testimony. According to Mr. DeSipio's testimony, he overheard Ms. Welsh speaking to another person, saying "I have to do this or I gotta do this." (N.T. 8/13/99, 128). Then she said "[i]f he goes to jail, it was going to kill him." (N.T. 8/13/99, 128).
At no time was Mr. DeSipio identified to the jury as an Assistant District Attorney. Trial counsel explained that he found no reason to object because Mr. DeSipio's testimony was proper rebuttal evidence and there is no rule of state law prohibiting an Assistant District Attorney from offering rebuttal evidence of this sort. The state court agreed. Commonwealth v. Crawford, No. 2620-99, Opinion, 11/23/03 (Carpenter, J.), at 10. Therefore, there was no basis for objection and counsel will not be found ineffective. See Parrish, supra.
Crawford next complains that counsel was ineffective for failing to object to the authentication of a letter written by petitioner. During trial, the defense called Michael Crawford, Keeshawn's brother. In his testimony, Michael told the jury that he had killed Willie Holmes. (N.T. 8/11/99, 43). However, the Commonwealth countered this testimony by presenting evidence that the two Crawfords had planned to have Michael take the fall for Keeshawn. Specifically, the Commonwealth presented a letter written by Keeshawn, found in Michael's cell, in which he asked his brother to assume responsibility for the shooting of Mr. Holmes because Michael was already incarcerated on other charges. The Commonwealth used the testimony of Nikisha Taylor, a friend of Keeshawn's, to authenticate the letter found in Michael's cell.
Petitioner challenges the authentication, as he did in his PCRA petition, claiming that Ms. Taylor was not qualified to analyze his handwriting. Because Ms. Taylor never had any handwriting analysis training, Crawford claims her testimony was improper and counsel was ineffective for failing to challenge it. The state court found that, pursuant to Pennsylvania Rule of Evidence 901(b)(2), "handwriting may be authenticated with a nonexpert opinion based on the witness's familiarity with the handwriting."Commonwealth v. Crawford, No. 2620-99, Opinion, 11/23/03 (Carpenter, J.), at 11.
Reviewing the testimony, we find that the trial court committed no error and counsel was not ineffective. Ms. Taylor testified that she was familiar with Keeshawn Crawford's handwriting because they had corresponded in the past. (N.T. 8/13/99, 102, 117). With this foundation, Pennsylvania law permits this witness to authenticate the Petitioner's handwriting. Counsel will not be deemed ineffective for failing to present a meritless objection.See Parrish, supra.
Next, Crawford complains that counsel was ineffective for failing to object to the prosecutor's reference to Petitioner's prior incarceration during the trial. The PCRA Court found that counsel had a reasonable basis for his decision not to object. After reviewing the pertinent testimony and counsel's explanation at the PCRA hearing, we find no error in the state court's determination.
During the cross-examination of Sandra Welsh, the prosecutor elicited testimony that the Petitioner had been in prison.
Q. You are close with the family, but you're not close with [Keeshawn]?
A. I'm not close with Keeshawn, because Keeshawn was locked up when Derrick and I were together.
Q. And despite the fact that you're not close to him, have you visited him in prison?
A. Yes I have.
Q. You were on the visitor's list at various times?
A. I have visited him twice.
(N.T. 8/12/99, 66).
During the PCRA hearing, trial counsel explained that he chose not to object to this passing reference to Crawford's prior incarceration for two reasons. First, he had already explained to the jury in his opening that, although Crawford had been involved in drugs, he was not a murderer. (N.T. 8/22/03, 42). Second, any objection would have just focused the jury's attention on the prior incarceration. (N.T. 8/22/03, 42).
In Strickland, the Supreme Court held that strategic choices made by counsel are presumed reasonable. "Because advocacy is an art and not a science, and because the adversary system requires deference to counsel's informed decisions, strategic choices must be respected . . . if they are based on professional judgment."Strickland, at 681. Here, counsel's basis for declining to object to these questions was based on sound trial strategy. The state court's conclusion is consistent with the teachings ofStrickland. B. Failure to Disclose Exculpatory Evidence and Declare a Mistrial
In his Memorandum, Crawford may also be attempting to argue that the prosecutor's line of questioning constituted prosecutorial misconduct. See Memorandum, at 22. To succeed on such a claim, Crawford would have to establish that this passing reference to his prior incarceration "infected [the] trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). Considering the evidence in this case and the fact that defense counsel had already admitted Crawford's involvement in drugs, a claim of prosecutorial misconduct must fail.
Crawford's final two claims are intertwined. He complains that the prosecution failed to timely disclose their discovery of potentially exculpatory evidence and the trial court subsequently denied his due process rights by failing to declare a mistrial. As previously stated, the defense presented the testimony of Michael Crawford in which Michael admitted killing Mr. Holmes. Crawford complains that the Commonwealth failed to disclose a letter allegedly written by Michael to their mother, in which he admits killing Mr. Holmes. Crawford points out that this letter would have provided support for his brother's testimony and admission.
When Crawford brought the Brady claim on direct appeal, the Superior Court found no Brady violation because the court found that the prosecution did not have the letter in its possession until after Michael testified and the prosecution provided a copy to the defense the day after it was discovered.Commonwealth v. Crawford, 3219 EDA 1999, at 3-4. In addition, the state court found that the letter was merely cumulative of Michael Crawford's testimony.
Brady v. Maryland, 373 U.S. 83 (1963), requires the prosecution to disclose any exculpatory evidence to the defense.
The testimony presented at trial supports these factual findings. David Dombroski, a sergeant at the Montgomery County Correctional Facility, testified that, on the day Michael Crawford testified in this case, his cell was searched and several pieces of correspondence were confiscated. Included among these was the letter to Crawford's mother. (N.T. 8/13/99, 71, 76-77).
In its opinion, the Superior Court notes that the search was conducted after Michael Crawford's surprise testimony that he was the shooter. Commonwealth v. Crawford, 3219 EDA 1999, at 4.
Petitioner argues that the prosecution had the documents prior to the cross-examination of Michael on August 11. From a review of the testimony, it appears that the documents may have been faxed to the prosecutor's office prior to Michael's cross examination. (N.T. 8/16/99, 29, 48). However, the prosecutor told the court that he was not given Michael's letter to his mother in court that day. (N.T. 8/16/99, 30, 48). Thus, the prosecutor did not have it during Michael's cross-examination.
The prosecutor made all of the seized documents available to defense counsel for his inspection the next day, but no inspection was made. (N.T. 8/16/99, 30). On the evening of August 12, 1999, the prosecution provided copies of all of the documents. (N.T. 8/16/99, 30; 8/13/99, 114-115). Copies had obviously been given to the defense because defense counsel questioned Sergeant Dombroski about the letters during his testimony on August 13, 1999. (N.T. 8/13/99, 76-77). Based on this evidence, we find the state court's conclusion — that the prosecution complied with its Brady obligations — was reasonable.
From an exchange that took place during the testimony on August 12, 1999, it appears that the prosecution made the items available for inspection, but required that the documents remain in the possession of the prosecution. (N.T. 8/12/99, 136).
With respect to the mistrial, after the jury started deliberating, defense counsel sought to reopen his case to get into evidence the letter allegedly written by Michael Crawford to his mother. The trial court denied the request, at which time, defense counsel sought a mistrial based on the Brady violation. (N.T. 8/16/99, 32-35, 48-49). In the post-verdict opinion, the trial court addressed the Brady claim, the motion to reopen, and the motion for a mistrial.
Most importantly, however, as stated above, trial counsel had ample opportunity to review the exculpatory letter prior to resting his case, and did, in fact, use the letter as part of the defense. (N.T. 8/13/99, P. 77 [cross examination of rebuttal witness Dombroski]). Thus, because trial counsel had ample opportunity to develop a defense in connection with the exculpatory letter prior to the close of evidence, this court properly denied the motion to re-open.Commonwealth v. Crawford, No. 2620-99, Opinion 12/16/99 (Carpenter, J.), at 9.
Again, the findings of the court are supported by the record. The documents were present in court on August 12, the day after they were seized. The prosecution made them available to defense counsel for inspection, but required that possession of the originals remain with the prosecution's investigator. (N.T. 8/12/99, 136-37; 8/16/99, 29-31). At the conclusion of the day's testimony, defense counsel complained about his inability to review the documents.
The Court: Well, have the items been provided to you now for your review?
Defense Counsel: No. They have been taken from me. They have to be handed to me, and then I look at them, and then they take them back when I walk in and out of doors. I'd like copies and/or a reasonable amount of time to look at these items.
(N.T. 812/99, 136-37). The court then ordered copies be made for defense counsel and defense counsel admitted that he received them that night.
The defense did not rest its case until after presenting a witness on August 13. Thus, the defense did have an opportunity to present testimony in its case-in-chief to allow the admission of the exculpatory letter.
While arguing the motion to reopen, defense counsel explained that, prior to the close of his case, he could not lay a proper foundation for the admission of the letter because Michael Crawford refused to take the stand again. Both the trial court and the Superior Court rejected this argument. "It is not the Commonwealth's fault that Michael refused to testify further so that the letter possibly could have been allowed into evidence during trial." Commonwealth v. Crawford, 3219 EDA 1999, at 4. We agree.
Looking at the Brady claim in the context of this trial, it becomes apparent that the petitioner was hoisted by his own petard. Michael Crawford's admission came as a surprise to the prosecution, which prompted the search of Michael's cell. The documents found during the search were promptly disclosed to the defense. The fact that the defense could not respond to the rebuttal because their witness refused to testify does not amount to a Brady violation.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this 30th day of September, 2005, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DENIED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, 2005, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DENIED.
3. There is no basis for the issuance of a certificate of appealability.