Opinion
Civil Action No. 97-784(JBS).
June 30, 2000
Louis Giambi, New Jersey State Prison, Trenton, New Jersey, Petitioner pro se.
John J. Farmer, Jr., Attorney General of New Jersey, By: Kathleen M. Higgins, Special Deputy Attorney General, Motions and Appeals Unit, Camden County Prosecutor's Office Camden, NJ, Attorney for Respondents.
OPINION
This matter is before the Court on application of petitioner Louis Giambi for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is presently incarcerated at New Jersey State Prison in Trenton, New Jersey, serving three consecutive life sentences plus twenty-one years imposed by the Superior Court of New Jersey, Law Division, Camden County on June 20, 1984 after a jury found him guilty of several charges, including first-degree murder and conspiracy to commit murder. This case arises from the murders of Mr. and Mrs. William Stewart and their three-old daughter Sandra, in their home in Pine Hill, New Jersey, on April 17, 1982.
In the present petition, Giambi raises multiple claims for relief. First, petitioner alleges that his trial counsel, namely Richard Friedman, Esquire, and Salvatore Avena, Esquire, were ineffective for (1) failing to properly investigate the case; (2) failing to object to the prosecutor's inappropriate comments; (3) failing to object to graphic testimony; and (4) for incompetency during cross-examination and opening and closing arguments. Second, petitioner contends that he was denied a fair trial by the prosecutor's prejudicial comments during closing arguments.Third, petitioner contends he was denied a fair trial by the admission of prejudicial photographs and other graphic testimony of investigators. After considering the submissions of the parties and after reviewing the record in its entirety, this Court finds that petitioner's claims lack merit and therefore will deny Giambi's application for habeas relief.
Giambi also argues that he was deprived of his right to adequate appellate counsel because his appellate counsel failed to include as grounds for overturning his conviction that his post-conviction relief counsel's performance was inadequate. (Pet.'s Br. at 35.)
This claim is not a proper argument for habeas relief. Under the Supreme Court's ruling in Pennsylvania v. Finley, 481 U.S. 551 (1986), there is no Constitutional right to effective assistance of counsel at state-established collateral remedies such as post-conviction relief proceedings. Thus, the states have no constitutional obligation to ensure that post-conviction relief counsel's performance meets the requirements of the Sixth Amendment. Even assuming that appellate counsel erred in not raising the issue of post-conviction relief counsel's performance, this error relates to an issue that has no federal constitutional ramifications. As such, appellate counsel's failure to raise this issue is not a ground upon which habeas relief may be granted.
I. BACKGROUND
On December 20, 1983, a Camden County grand jury indicted petitioner, Louis Giambi, on 52 criminal counts. Among these were conspiracy to commit murder, in violation of N.J.S.A. § 2C:5-2a1 a2; three counts of first-degree murder, in violation of § 2C:11-3; criminal coercion, in violation of § 2C:13-5a1; first degree robbery, in violation of § 2C:15-1; unlawful transfer of firearms, in violation of § 2C:39-9d; distribution of a controlled and dangerous substance, in violation of § 24:21-19(a)(1); tampering with witnesses and informants, in violation of § 2C:28-5a2 and § 2C:28-5a4; and bribery, in violation of § 2C:27-2c. (Resp.'s App. Ex.8 at 9-63.)
A three-week jury trial commenced on May 2, 1984, the Honorable E. Stevenson Fluharty presiding. During the trial, the jurors heard evidence from witness John DeFrank, who testified that he was a former friend and crime-partner of Giambi's, and that Giambi and a co-conspirator James Cloran had, in March or April 1982, offered DeFrank $10,000 to murder an individual, Lawrence Augustine, who was preparing to testify against Cloran in an unrelated case in which Augustine was a stabbing victim. (Resp.'s Br. at 4.) On April 17, 1982, mere weeks after DeFrank refused to commit the murder, unknown assailants brutally murdered a family of three (Mr. and Mrs. William Stewart and their three-year old daughter Sandra) who lived in the same Pine Hill development as the targeted man. The Stewarts' five-year old daughter Miriam survived the murders by hiding in another room.
Later, after he was arrested with petitioner Giambi on unrelated drug charges, DeFrank came forward with information about Giambi's scheme to have Augustine murdered. He told agents that, because of the similarity between Augustine's and the Stewart family's houses, he believed that Giambi was connected with the Pine Hill murders. As part of his arrangement with New Jersey authorities, DeFrank wore a wire and recorded incriminating conversations between Giambi and himself.
In their conversations, Giambi coached DeFrank on how to testify before the Grand Jury and made inculpatory statements about his participation in the murder scheme. (Trial Tr. 5/29/84 at 8:18 to 9:17, 13:23 to 124:21.)
The jury also heard evidence that, while jailed on unrelated charges, Giambi made detailed and incriminating statements to his cellmate, a self-proclaimed jailhouse lawyer, Patrick Borror. Borror relayed Giambi's statements, which included a confession to the Pine Hill murders, to law enforcement officials, and Borror also testified against Giambi at trial. (Id. at 14.) (Trial Tr. 5/29/84 at 5:2 to 5:15; 8:14 to 9:7; and 14:2 to 15:17.)
Giambi had begun by asking Borror for advice on legal issues like the statute of limitations for murder and how old a child witness must be to be deemed competent. (Trial Tr. 6/5/84 at 10:11 to 11:20.) Giambi told Borror that three people were killed, a father, mother, and small child. (Id. 13:5-7.) He told Borror that he and a person named John went to Pine Hill on a dark, rainy, foggy night, kicked in the door, killed the three people, and that a little girl got away. (Id. 14:2 to 15:17.) Borror further testified that Giambi told him other details of the crime, such as Giambi wearing a stringy wig and leather gloves and carrying a gun. (Id. 14:18 to 15:25.) These and other details of the crimes were known only to the investigators and did not appear in the newspapers, since this information was not released until after the arrest warrants were obtained, such that Borror could only have learned these things from Giambi himself, as substantiated at trial by a police investigator. (Trial Tr. 6/4/84 at 122-123.)
Upon completion of the trial, the jury returned verdicts of guilty on July 13, 1984. Giambi was convicted of murder, conspiracy, distribution of a controlled dangerous substance, unlawful transfer of firearms, tampering with witnesses and informants, and bribery. (Resp.'s App. Ex. 2, Pet.'s App. Ex. 1-3.)
On July 20, 1984, Judge Fluharty sentenced the petitioner to three consecutive life sentences plus 21 years with parole ineligibility for 75 years. He also was sentenced to $2,125 in violent crime penalties. (Pet.'s App. Ex. 1-3.)
On August 31, 1984, petitioner filed a direct appeal with the Superior Court of New Jersey, Appellate Division. (Resp.'s App. Ex. 8 at 1.) There, petitioner asserted two grounds for appeal. First, petitioner contended that he was denied a fair trial by the erroneous admission of prejudicial photographs of the crime scene. Second, he alleged that he was also denied a fair trial by the prosecutor's prejudicial and improper comments. (Resp.'s App. Ex. 8 at 19, 28.) The Appellate Division affirmed petitioner's conviction on October 14, 1986. Giambi then petitioned the New Jersey Supreme Court for certification on October 31, 1986, raising the same arguments previously rejected by the Appellate Division. (Resp.'s App. Ex. 18 at 3.) The Supreme Court denied Giambi's petition on January 26, 1987. (Resp.'s Br. at 3.)
On September 4, 1985, petitioner filed a motion for limited remand for hearings on ineffective assistance of counsel that was denied by the Appellate Division on September 25, 1985. (Resp.'s App. Ex. 8 at 2; Resp.'s Br. at 2.). The Appellate Division granted petitioner permission to file for post-conviction relief in the trial court. (Resp.'s Br. at 2.) Petitioner filed for post-conviction relief on October 11, 1985 in the Camden County Law Division, (Resp.'s App. Ex. 8 at 2), requesting a new trial due to ineffective assistance of counsel during trial. (Pet.'s App. at Ex. 8.) Judge Fluharty heard petitioner's application for post-conviction relief on November 22, 1985, and denied petitioner's motion for an evidentiary hearing. (Pet.'s App. Ex. 9 12-19.) Giambi never appealed this decision denying him post-conviction relief.
In April of 1990, petitioner filed a second petition for post-conviction relief. (Resp.'s App. Ex. 21 at 150.) In it, petitioner alleged that he was denied a fair trial because of prosecutorial misconduct, erroneous jury instructions, and ineffective assistance of appellate counsel. (Resp.'s App. Ex. 21 at 129, 141, 143.) The trial court denied this petition on April 16, 1990, in part due to untimely filing, pursuant to New Jersey Court Rule 3:22-12. Nevertheless, that court addressed the petition on the merits, holding that the jury instruction and prosecutorial misconduct issues should have been raised on direct appeal, and the matter of the ineffectiveness of counsel had already been addressed by the court. (Resp.'s App. Ex. 29 at 8.1-8.2.) Petitioner appealed this decision on July 5, 1990 (Resp.'s App. Ex. 23 at 7), and on June 27, 1991, the Appellate Division affirmed the Law Division's decision denying petitioner relief. Petitioner then filed a petition for certification with the New Jersey Supreme Court which was denied on June 28, 1991. (Resp.'s App. Ex. 27 28.) On March 10, 1994, Giambi petitioned the trial court for a new trial based on newly discovered evidence (Resp.'s App. Ex. 29 at 9), but on February 23, 1995, Judge Fluharty denied the motion. (Pet.'s App. at Ex.-15.) The Appellate Division affirmed this decision on January 12, 1996 (id. at Ex. 16), and the New Jersey Supreme Court denied certification on January 7, 1997. (Id. Ex. 17.) Petitioner then filed the present application for habeas relief under § 2254 on February 10, 1997.
II. DISCUSSION
A. Exhaustion of State Remedies
The general rule in habeas cases is that a state prisoner generally is not entitled to federal habeas corpus relief unless he has exhausted all available state remedies before filing his petition for writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1)(a). A petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).
Even where all of a petitioner's claims are unexhausted, however, the amendments to habeas procedure as provided by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), allow a federal court to deny even unexhausted claims on the merits where it is clear that the unexhausted claim is not colorable. 28 U.S.C. § 2254(b)(2). See also Lambert v. Blackwell, 134 F.3d 506, 511-19 (3d Cir. 1997), quoting Granberry v. Greer, 481 U.S. 129, 135 (1987). Thus, under AEDPA, a federal court can deny a habeas petition on the merits even if the petitioner's presents a combination of exhausted and unexhausted claims. Burkett v. Love, 89 F.3d 135, 138 (3d Cir. 1996). The federal court need not dismiss the entire petition without considering the merits of the unexhausted claims as required by the law prior to enactment of AEDPA, cf. Rose v. Lundy, 455 U.S. 509, 520 (1982).
In the present case, Giambi presents a mixed petition of exhausted and unexhausted claims. Petitioner failed to appeal the denial of his first petition for post-conviction relief upon claims of ineffective assistance of trial counsel relating to alleged failure to prepare and investigate his case, and to the alleged deficient opening and closing arguments. His second petition for post-conviction relief, however, argued that trial counsel was ineffective for failure to investigate, and for failing to object to the admission of graphic evidence and to the prosecutor's allegedly improper closing remarks. Petitioner's claims regarding admission of the shocking photographs and about the prosecutor's closing statement were raised on direct appeal through the level of the New Jersey Supreme Court and are exhausted.
For reasons explained below, the present application contains no claims that merit habeas relief. This Court will exercise its discretion to address all issues, including those that are unexhausted because, as will be discussed, the unexhausted claims clearly lack merit under federal law. Since petitioner's unexhausted claims would be barred from state court consideration due to untimely filing, this Court's decision to consider the present application will not usurp state court powers. Accordingly, the Court will forgo a detailed exhaustion analysis and address petitioner's claims on the merits. Similarly, this Court will not parse the extensive record as to the unexhausted appeals upon the various species of the claim of incompetence of trial counsel to determine whether there was cause and prejudice sufficient to permit review here despite failure to exhaust aspects of that claim, see Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner has manifested sufficient post-conviction challenge to the performance of his trial counsel on multiple occasions that the assertion in his Petition at ¶ 13 that he believes that all of his present grounds were previously presented to the state courts will not be disregarded.
B. Standard of Review
A federal court must deny a state prisoner's petition for federal habeas corpus relief on any claim that was adjudicated on the merits in state court unless the state court's adjudication of that 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)(1) (2).
The Third Circuit has held that § 2254(d)(1) requires a two-step analysis:
First, the federal habeas court must determine whether the state court decision was "contrary to" Supreme Court precedent that governs the petitioner's claim. Relief is appropriate only if the petitioner shows that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court. In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an "unreasonable application of" Supreme Court precedent: that is, whether the state decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. If so, then the petition should be granted.Mateo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir. 1999) (citations and internal quotes omitted). Recently, the United States Supreme Court endorsed this interpretation inWilliams v. Taylor, 120 S. Ct. 1495 (2000), which addressed the statutory phrases "contrary to clearly established Federal law, as determined by the Supreme Court of the United States" and "involved an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States."
In Williams, the Supreme Court held that § 2254(d)(1) requires a two-step analysis:
the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.120 S. Ct. at 1523.
A petitioner who claims that the state court's adjudication of his claim was based on an unreasonable factual determination entitling him to relief under § 2254(d)(2) faces a heavy burden of proof, because "a determination of a factual issue made by State court shall be presumed to be correct" unless the petitioner rebuts that presumption "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Meyers v. Gillis, 93 F.3d 1147, 1149 n. 1 (3d Cir. 1996) (noting that § 2254(e)(1), adopted as part of the April 1996 amendment of § 2254 under AEDPA, is even more demanding that the standard embodied in the repealed § 2254(d)(8), which required federal courts to presume the correctness of state court findings of fact unless they were not fairly supported by the record).
C. Analysis
Giambi raises three main grounds for habeas relief. First, petitioner contends that his counsel was ineffective because (1) defense counsel failed to prepare adequately for the trial, (2) defense counsel failed to object to prosecutor's biased remarks during closing, (3) defense counsel failed to adequately cross-examine witnesses, (4) defense counsel's opening and closing statements were substandard. (Pet.'s Br. at 17.)Second, petitioner contends that he was denied a fair trial by the prosecutor's prejudicial comments. (Id. at 43.) Third, petitioner alleges that he was also denied a fair trial by the erroneous admission of prejudicial photographs and other evidence. (Id. at 51.)
1. Ineffective Assistance of Trial Counsel
Petitioner asserts that his counsel were ineffective on six separate grounds. However, petitioner does not raise any errors by counsel that are sufficiently egregious to meet theStrickland "cause and prejudice" standard, as now discussed.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-prong test for reviewing a claim of ineffective assistance of counsel. The petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, id. at 688, and (2) that the deficient performance prejudiced the defense, which requires a showing that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, id. at 694. For a reversal of a claimant's conviction, the petitioner must first show that counsel's performance was so deficient that defendant was deprived of his Sixth Amendment right to counsel. Id. at 688-89. Using prevailing norms as guides, counsel's performance is considered acceptable if it "was reasonable considering all the circumstances." Id. at 688. Since there are numerous reasonable ways to try a case, the court cannot use hindsight when making such a determination; rather, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Considering the Strickland and § 2254 standards in combination, therefore, the Court must decide if, considering the surrounding circumstances, the state court's ruling that counsel's challenged conduct was reasonable was itself an unreasonable application ofStrickland dictates. See id. at 690.
Second, the petitioner must show it is probable that counsel's unreasonable conduct adversely affected the outcome of the case. Counsel will be deemed ineffective if counsel prejudiced the outcome of the case so grievously that the petitioner was denied a fair trial. See id. at 691-95. The petitioner must show that "but for counsel's unprofessional errors," the resulting conviction would have, within reasonable probability, been different. Id. at 694. Both prongs of the test must be met for petitioner to obtain relief through writ of habeas corpus. See Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999) (citing United States v. Nino, 878 F.2d 101, 103-104 (3d Cir. 1989)).
In this context, "reasonable probability" means "a probability sufficient to undermine confidence in the outcome."
a. Trial Counsel's Alleged Failure to Properly Prepare Case
First, petitioner claims that trial counsel did not investigate or subpoena two prisoners who claimed that one of the prosecution's witnesses was preparing to commit perjury.
A year after the trial, in 1985, petitioner retained an investigator, C. Allen Bostick, who developed information from two men who had been fellow inmates of Borror in federal prison, namely Thorasis Theodoropoulos and Robert Goodnow, who both believed that Borror was interested in the Pine Hill case, was desperate to get out of prison by cooperation, and was clipping newspaper articles about the case to memorize them. Both men told Bostick that they had spoken with trial counsel Avena about this. Bostick's 1985 investigative reports (Pa-20a), accompanied by Theodoropoulos' August 19, 1985 Affidavit (Pa-21) confirm Theodoropoulos' version, and Goodnow's August 28, 1985 Affidavit (Pa-22) and Bostick's August 22, 1985 investigative report confirm Goodnow's version. Giambi alleges that such information could have been used at his trial by Avena and Friedman to undermine the credibility of Borror by showing his motive and opportunity to fabricate evidence against Giambi, and that his attorneys failed to follow up on these leads.
This claim and evidence was presented to Judge Fluharty by petitioner's new counsel at a post-conviction relief hearing on November 22, 1985. At that hearing, petitioner's counsel made the rather stunning admission that in fact Borror had read none of the details in newspaper articles in prison, through Theodoropoulos or anyone else, during the time of his conversations with cellmate Giambi, because no such news stories naming Giambi appeared until a month after Giambi was indicted. (Ra10: Tr. 11/22/85 AT 4:10-17).
Judge Fluharty's Oral Opinion addressed this and other matters of trial counsel's alleged ineffectiveness during the course of the post-conviction relief hearing. He acknowledged that Borror "was an important witness for the prosecution, but not indispensable." (Id. at 10:14-15.) He found that the statements of Giambi on tape were "devastating" to Giambi and did not depend upon Borror's credibility. (Id. at 10:6-10.) On the tapes which the trial court reviewed, the inflection of Giambi's voice, what he said, and what he refrained from saying, were significant in concluding that "Mr. Giambi did make statements which clearly support his involvement in the killings." (Id. at 9:22 to 10:3.) In Judge Fluharty's opinion, petitioner was putting undue stress upon the necessity of attacking Borror's credibility when the taped statements of Giambi himself amounted to confessions made in confidence to Borror.
Judge Fluharty found that the proffer of the Theodoropoulos affidavit was unavailing because the newspaper articles contained none of the incriminating information that Borror could have learned only from Giambi at the relevant time. (Id. at 12:1-17.) Defense counsel's tactic in not following up with Theodoropoulos was found to be reasonable because "counsel did not dare to go further since he knew the facts known by Mr. Borror [were] not in the newspapers." (Id. at 12:18-22.) Had defense counsel pursued this by calling Theodoropoulos as a witness, Judge Fluharty found that the prosecutor would have devastated him on cross-examination because of the impossibility of what Theodoropoulos was claiming. (Id. at 12:23 to 13:10.) The prosecutor might then have been able to admit the newspaper articles into evidence to demonstrate that no article contained the details of the crime that Borror learned from Giambi. (Id. at 13:11 to 14:1.) The same rationale was found to equally undermine Goodnow's affidavit and to justify the reasonableness of trial counsel's decision not to call Goodnow as a witness. (Id. at 14:6-11.) Finally, investigator Bostick's information was found to be derived from Theodoropoulos and Goodnow, who were already in contact with defense counsel, adding nothing, in the trial court's view, to the surrounding circumstances. (Id. at 14:12 to 15:4.)
In accordance with Strickland, this Court is deferential to the attorney's conduct. Petitioner's counsel's failure to interview incarcerated witnesses and subpoena them for trial does not constitute an error of Constitutional proportions, nor does the state court's decision to deny petitioner relief on this ground. Counsel's choice not to subpoena the fellow prisoners and rely on the credibility of prisoners' testimony is well within reason because such witnesses would necessarily have criminal records with which they might be impeached, and because of the impossibility of their proffered testimony about Borror getting his facts from the newspaper accounts. Additionally, considering the amount of evidence presented during the three-week trial, it does not appear probable that admission of the two prisoners' testimony would have altered the outcome. Thus, petitioner has not shown that trial counsel's lack of preparation was such that it violated the Strickland test. The state court's findings correctly applied federal constitutional law to the facts of the case, and no basis for relief exists under § 2254(d)(1), supra. Moreover, the trial court's factual findings were not unreasonable in light of the evidence presented at the post-conviction proceeding and that court's full familiarity with the trial record, and no basis for relief exists under § 2254(d)(2), supra.
b. Trial Counsel's Tactics: Failure to Object to Prosecutor's Prejudicial Comments; Failure to Object to the Admission of Graphic Testimony; Inadequate Cross-Examination
Next, petitioner alleges that trial counsel failed to object to prosecutor's prejudicial closing remarks, failed to object to graphic testimony, and failed to adequately cross-examine witnesses, all in a manner depriving him of competent counsel as required by Strickland.
Petitioner's excerpt of counsel's cross-examination does not demonstrate that his attorney's conduct rises to the level of an unreasonable action. Petitioner attacks counsel's incompetency in questioning the police as to the last names of "John" and "Sue." However, in the excerpt provided, counsel clearly questions Captain Booker about the identity of "John" and "Sue" and received a direct response that the "John" and "Sue" interviewed were not those who the petitioner thought were involved in the homicide. Counsel could reasonably have believed that further questioning of Captain Booker and other policemen would have been detrimental to petitioner's defense. Thus, defense counsel's supposedly incompetent conduct may have been a practical trial tactic.
Counsel's failure to object to the prosecutor's closing comments and to the graphic testimony was not a mistake. However, even a possible tactical error in failing to object to these items would be insufficient to satisfy the prejudice prong of Strickland because neither objection, within reasonable probability, would have succeeded, nor would the exclusion of this evidence likely have altered the outcome of the trial. As found by the state appellate court, when viewed in the context of the totality of the prosecutor's statements, and in light of the overwhelming evidence against Giambi, it is unlikely that two fleeting statements made within a lengthy closing argument would cause the jurors to disregard the evidence presented throughout the three-week trial and find the defendant guilty of three murders. These conclusions were reasonable, as discussed below in subpart II.C.2. Given the amount of evidence and nature of the prosecutorial comments, therefore, it is improbable that a jury was so effected by the prosecutor's assurances that, had the statements not been made, the jury would have found the petitioner not guilty.
The prosecutor's closing comments are described in greater detail in subpart II.C.2, infra, pertaining to petitioner's allegations that the prosecutor impermissibly vouched for witnesses and suggested that he knew other information about the petitioner due to a continuing investigation that was not in evidence at trial.
The crime scene photographs to which petitioner objects are described in greater detail in subpart II. C.3, infra.
Similarly, counsel's choice not to cross-examine or object to graphic testimony of the crime scene did not, in all reasonable probability, affect the outcome of the trial. It is, first and foremost, unclear that such an objection would have been granted, due to the discretion which the trial judge has in weighing the probative value of the evidence against any unfair prejudice. Although the descriptions of the "blood-bath" in the bathroom may have been of little probative value and possibly should have been objected to, even the elimination of the graphic descriptions would not have altered the jury's verdict. There necessarily was ample crime scene evidence that conveyed the same impression to the jurors. The details of the murder may have disturbed the jury, but considering the direct evidence of Giambi's involvement presented by witnesses DeFrank and Borror, a graphic description of the crime scene certainly did not in itself cause the jury to find the defendant guilty.
c. Trial Counsel's Inadequate Opening and Closing Arguments
Petitioner further contends that defense counsel's opening and closing arguments were grossly deficient.
First, because petitioner does not indicate which of defense counsel's comments or omissions violated the Sixth Amendment guarantee of competent counsel, the Court finds this claim insufficiently specific for habeas review and will not address it.
Second, the Court is unpersuaded by petitioner's claim that counsel's closing was so defective as to deprive him of a fair trial. The paragraph of the argument described by petitioner as "utterly incomprehensible" is not only understandable, but probably was reasonably clear to the jurors. Furthermore, the allegedly "short" length of defense counsel's closing argument is not indicative of its quality, since a brief but poignant argument may have been more effective in this case. The argument covered all salient points and repeatedly involved the reasonable doubt which counsel believed resided in the circumstances. The trial judge, at the post-conviction relief hearing, found defense counsel's advocacy to be competent, effective, vigorous, and resourceful in attacking the prosecutor's case. (Ex. Ra-10, Tr. 11/22/85 at 15:24 to 17:10.) Therefore, the Court declines to grant relief on this ground finding no basis for relief within the standards of §§ 2254(d)(1) (2), supra.
In sum, the Court finds that a review of the merits of these claims shows that trial counsel's performance was not constitutionally deficient. At no point did trial counsel's conduct fall below an objective standard of reasonableness, nor is it probable that the outcome would have been different if counsel had conducted themselves in the manner petitioner now urges. The Court therefore will not disturb the state post-conviction relief court's decision not to grant petitioner relief on these grounds.
2. Improper Prosecutorial Statements
Next, petitioner contends that habeas relief is warranted because the prosecutor's statements during his closing were improper. Giambi identifies as constitutional deprivations that the prosecutor personally vouched for the credibility of his witnesses, and that he suggested that he knew additional information about Giambi's guilt that was not proffered at trial.
Petitioner objects to aspects of the opening and closing arguments where the prosecutor responded to defense attacks upon the thoroughness and professionalism of the investigation and the quality of the prosecution's witnesses. Petitioner points out that the prosecutor's opening statement acknowledged that the state takes its witnesses as it finds them and promised evidence that would corroborate them at trial. (Trial Tr. 5/24/84 at 14:3-8). The prosecutor welcomed the jury's examination of the motivation of witnesses and promised to introduce evidence of the way in which the investigation was developed. (Id. at 44:10-24.) Petitioner objects to the prosecutor's comments in his closing argument regarding trial testimony that the investigation is continuing and that the defense had an opportunity to question the investigating officers about developments in that investigation but did not do so. (Trial Tr. 6/11/84 at 102-103.) Petitioner further objects to the prosecutor's advocacy that the jury should not find the prosecution dishonorable and acquit the defendant merely because some of the cooperating witnesses were unsavory persons; rather, the prosecution suggested that the jury should "rely on that testimony because it's corroborated beyond a reasonable doubt to find the defendant guilty." (Id. at 109-110.) Petitioner alleges that in their totality, the prosecutor's remarks amounted to impermissible vouching for credibility of witnesses and presented inflammatory arguments for conviction.
In cases involving allegations of improper argument, marginal comments do not warrant habeas relief as a violation of due process unless they produced a miscarriage of justice or undermined the fundamental fairness of the trial. See United States v. Bethancourt, 65 F.3d 1074, 1080 (3d Cir. 1995). For a petition based on prosecutorial statements "to be successful, [petitioner] must bring this prosecution within those `exceptional cases where justice would require us to reverse even though the defense counsel voiced no objection to the prosecutor's remarks at the time.'" United States v. Dolasco, 470 F.2d 1297, 1299 (3d Cir. 1973) (quoting United States v. Lawson, 337 F.2d 800, 807 (3d Cir. 1964)).
The statements made by the prosecutor at trial were not improper. The Appellate Division found that in viewing the prosecutor's supposedly improper comments "in the context of the totality of the prosecutor's statements and the overall trial of the case," they were satisfied that "the defendant's rights were not violated." (Pet.'s App. at Ex.10.) It is quite clearly a prosecutor's duty to present a summary of the evidence from which the jury may be induced to credit testimony, such as by bringing the corroborating evidence to the jury's attention. Nowhere did the prosecutor cross the constitutional line into the areas of reliance upon inadmissible evidence or personal vouching for witnesses. The petitioner cannot seriously contend that this prosecutor did anything more than suggest to the jury the reasons why the evidence added up to proof powerful enough to convict Giambi of these crimes. This Court finds that the Appellate Division did not apply any standards of law contrary to, or make an unreasonable application of, United States Supreme Court precedent, and will defer to the state court's finding that the petitioner was not denied a fair trial as a result of the prosecutor's comments. Thus, the Court will deny the petitioner habeas relief on this ground.
3. Erroneous Admission of Prejudicial Evidence
Finally, petitioner contends that his petition for a new trial should be granted by this Court because graphic, prejudicial photographs of the crime scene were admitted into evidence during his trial. Giambi argues that the photographs, which included a depiction of a slain three-year-old girl, were unfairly prejudicial, and that the trial court's decision to admit these photographs led to an impartial and unfair trial.
The admissibility of photographs is an evidentiary question, and, generally, federal courts do not sit in review of the validity of a state court's evidentiary ruling. See Lisbena v. California, 314 U.S. 219, 228-29 (1941). For an evidentiary mistake to meet the requirements for granting habeas relief, the petitioner must show that the admission of particular evidence "caused `fundamental unfairness.'" Kontakis v. Beyer, 19 F.3d 110, 120 (3d Cir. 1994) (quoting Lisenba, 314 U.S. at 236). To determine if the evidence caused a fundamental unfairness, the Court must apply the harmless error test which states that an error is harmless if it did not have a "a substantial and injurious effect or influence in determining the jury's verdict."Id. (quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 n. 9 (1993)). Shocking evidence does not meet this standard because, if the evidence is probative, the admission of such evidence is not so egregious that it violates due process. See Lisbena, 314 U.S. at 228-29.
In a similar case, the Fifth Circuit Court of Appeals held that the admissibility of forensic crime scene photographs was an evidentiary question for state courts, not federal courts.Mercado v. Massey, 536 F.2d 107, 108 (5th Cir. 1976). Thus it was not proper grounds for habeas relief. Id.
Here, the Appellate Division found that the photographs did not create any undue prejudice, and it found that the pictures' probative value outweighed the possible prejudice. (Pet.'s App. Ex.10.) The Appellate Division agreed with the trial judge's exercise of discretion in admitting these photographs because they were probative and necessary to corroborate the testimony of the five-year-old witness, and to demonstrate that the position of the wounds was as testified to by the witnesses, depicting a careful investigation of the causes of death of the three victims. The court finds that the Appellate Division's decision does not constitute an unreasonable application of federal law. Considering that the jury heard necessarily graphic testimony regarding the Pine Hill murders, and heard direct testimony from two witnesses regarding Giambi's involvement, no prejudice accrued from admitting these forensic photographs.
As there is no indication that the state courts unreasonably applied Supreme Court precedent in determining that the photographs did not create undue prejudice, no violation of a federal constitutional right is implicated, and this Court finds that a writ of habeas corpus cannot be granted upon this ground.
CONCLUSION
For the reasons stated in this Opinion, the Court finds that the petitioner has not demonstrated that his conviction resulted from a contravention of federal law. Therefore, petitioner's writ of habeas corpus is denied.
ORDER
This matter having come before the Court on the application of petitioner, Louis Giambi, for writ of habeas corpus pursuant to 28 U.S.C. § 2254; and this Court having considered the submissions of the parties; and for the reasons set forth in the Opinion of today's date;IT IS, this day of June, 2000 hereby
ORDERED that the petitioner's motion for writ of habeas corpus be, and hereby is DENIED ; and
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.