Opinion
Civil Action No. 04-1642.
September 23, 2004
REPORT AND RECOMMENDATION
This is a counseled petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, on behalf of Michael Richards, who is currently incarcerated at the State Correctional Institution at Bellefonte, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
FACTS AND PROCEDURAL HISTORY :
On July 14, 1994, Chad Ferdinand was shot and killed in a house at 4930 Kershaw Street. According to the testimony at trial, the decedent, a fifteen year old, sold drugs for Richards from the Kershaw Street house. (N.T. 5/25/01, 97-98). The night before the shooting, Peanut left the house with money and drugs. He returned with neither. (N.T. 5/25/01, 102-03). When Richards arrived the next morning to pick up the proceeds from the drug sales, an argument ensued between Richards and Peanut. Raymond Fredericks, who acted as a doorman and sold drugs for Richards from the Kershaw Street house, was upstairs when Richards and Peanut were arguing over the missing money. When Mr. Fredericks came downstairs, Richards "whacked [him] across the chest with a gun." (N.T. 5/31/01, 104). While Mr. Fredericks was looking at his chest, Peanut and Richards continued to argue and Fredericks heard the shot that killed Peanut. Although Mr. Fredericks testified that he was not looking at Richards and Peanut when the shot was fired, he did state that the gun was in Richards' hand immediately after the shot was fired. (N.T. 5/31/01, 106-09).
Throughout the trial transcript, Mr. Ferdinand is referred to as "Peanut." Similarly, Richards is referred to as "Mikey Lala," and Raymond Fredericks, who witnessed the shooting, was known as "Runner" or "Slim."
In defense, counsel argued that the shooting was not intentional. (N.T. 5/30/01, 18-19). Rather, an argument occurred between Richards and Peanut. Richards was pistol whipping Peanut with the gun and, when Peanut raised his arms to protect his face, the gun went off accidentally. (N.T. 5/30/01, 29-30).
On May 31, 2001, after a jury trial before the Honorable Gary S. Glazer, Richards was convicted of first degree murder, robbery, intimidation of witnesses, and possessing instruments of crime. (N.T. 5/31/01, 17-18). Judge Glazer sentenced Richards to life imprisonment for the murder charge with a concurrent 5-10 year sentence imposed on the robbery, and a consecutive 18-36 month sentence for the witness intimidation. No sentence was imposed for the weapons offense.
Richards filed a timely appeal claiming that the evidence was insufficient to support the first degree murder conviction; the court erred in failing to instruct the jury on involuntary manslaughter; counsel was ineffective for failing to request a limiting instruction regarding the prosecutor's references to the defendant as "a Jamaican drug-dealer;" and trial counsel was ineffective for failing to object/request a supplemental charge on specific intent. On November 27, 2002, the Superior Court affirmed the judgment of sentence. Commonwealth v. Richards, 2704 EDA 2001. The Supreme Court of Pennsylvania denied Richards' request for discretionary review. Commonwealth v. Richards, 841 A.2d 530 (Pa. Dec. 22, 2003).
On April 14, 2004, Richards filed this petition for habeas corpus claiming that trial counsel was ineffective for failing to seek a limiting instruction regarding the references to Petitioner as a "Jamaican drug-dealer," and trial counsel was ineffective for failing to request a supplemental charge regarding specific intent to kill. Because Richards presented these two claims in his direct appeal, they are considered exhausted for purposes of habeas corpus. See 28 U.S.C. § 2254(b)(1)(A) and (c). Therefore, we will proceed to address the merits of his claims.
DISCUSSION:
Richards first claims that counsel was ineffective for failing to seek a limiting instruction regarding references to him as a "Jamaican drug-dealer." In concluding that counsel was not ineffective, the trial court found that there were only three references to Richards as a drug dealer. Commonwealth v. Richards, 0084 1/1, December Term, 1999, at 7 (Opinion of Glazer, J., 12/10/2001). The Superior Court found that any such references did not prejudice the defendant. Commonwealth v. Richards, 2704 EDA 2001, at 10-11.
Unless the state court's determination is contrary to or involved an unreasonable application of federal law or was based on an unreasonable determination of the facts, the federal court may not grant habeas corpus relief. 28 U.S.C. § 2254(d). Recently the Supreme Court reiterated that the petitioner does not meet his burden by establishing that the state court incorrectly applied federal law. Rather, the petitioner must establish that such application was unreasonable. Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
A claim of ineffective assistance of counsel is governed byStrickland v. Washington, 466 U.S. 668 (1984), in which the Supreme Court held that the petitioner must establish that counsel's performance was unreasonable and that the defense was prejudiced as a result. Strickland requires the petitioner to establish that there is a reasonable probability that, but for counsel's errors, the outcome would have been different. Id. at 694. The Court stated that a reasonable probability is one that is "sufficient to undermine confidence in the outcome." Id.
Here, as previously mentioned, the Superior Court concluded that, in light of the abundance of evidence against Richards, the references to him as a drug dealer did not prejudice the defense. After reviewing the evidence, we agree. The prosecutor's theory, as supported by the testimony, was that Richards shot Peanut because he did not have the proceeds of drug sales from the night before. During the trial, the prosecutor presented two witnesses to the shooting and a prisoner with whom Richards had discussed the case. In addition to the prosecutor's opening and closing, wherein he laid out the prosecution's theory of the case, the prosecutor also questioned these three witnesses about the circumstances of the shooting. All three testified that Richards ran a drug house on Kershaw Street. The victim sold drugs for Richards and was shot during an argument he was having with Richards about missing money.
Neither of the two witnesses was looking at the argument when the gun fired. Raymond Fredericks, who also sold drugs for Richards from the Kershaw Street house, testified that, at the time the shot was fired, he was looking at his chest, where Richards had hit him with the gun. (N.T. 5/29/01, 107). John Agostini, who owned the house, stated that he turned his head away when Richards pulled a gun on Peanut and only heard the shot. (N.T. 5/29/01, 222).
Relying on Commonwealth v. Billa, 555 A.2d 835 (Pa. 1989), and Commonwealth v. Claypool, 495 A.2d 176 (Pa. 1995), Richards now complains that his trial counsel should have requested a cautionary instruction regarding the references to him as a Jamaican drug dealer. We agree that Richards was entitled to a cautionary instruction.
Although we have determined that evidence of prior criminal acts which the defendant himself makes relevant to prove the crimes with which he is charged is admissible, we are still mindful of the potential for misunderstanding on the part of the jury when this type of evidence is admitted. Therefore, such evidence must be accompanied by a cautionary instruction which fully and carefully explains to the jury the limited purpose for which that evidence has been admitted.Claypool, at 179). However that is not the end of the inquiry for an ineffective assistance of counsel claim.
In order to succeed on his ineffectiveness claim, Richards must also establish that the absence of the limiting instruction prejudiced his defense — undermined our confidence in the jury's verdict. It did not. Richards case is remarkably similar toCommonwealth v. Rollins, 580 A.2d 744 (Pa. 1990), a state case in which the defendant relied on Billa and Claypool. There, evidence of past drug activity was admitted as motive and to establish the circumstances surrounding a murder. The Pennsylvania Supreme Court concluded that, although Rollins was entitled to a cautionary instruction regarding the evidence of drug activity, his case suffered no prejudice as a result of counsel's failure to request such an instruction.
While this evidence [of three prior drug transactions] was relevant and admissible, the court erred in failing to give a cautionary or limiting instruction to the jury informing them of the limited purpose for which this evidence could be viewed. See, Commonwealth v. Billa, supra. Clearly, then, appellant's underlying argument has merit. Trial counsel should have requested, and the trial court should have given such a cautionary instruction. Appellant has, however, failed to demonstrate how the ineffectiveness prejudiced him.Rollins, at 748.
Here, Richards argues that, but for the evidence of "Petitioner's nasty and destructive actions in the community, as well as his Jamaican ancestry," the jury might have convicted him of third degree murder rather than first degree murder, based on the theory that he did not intend to kill the victim. See Petitioner's Brief, at 11, n. 1. The Superior Court disagreed. After reviewing the trial testimony, we conclude that, considering the circumstances of the shooting, the jury would have come to the obvious conclusion that Richards was a drug dealer, regardless of the prosecutor's characterization of him as such. Mr. Frederick explained that the missing drug money was the cause of the argument between Richards and Peanut. Mr. Agostini testified that Peanut sold drugs for Mikey Lala and had come up short on the money, causing the argument. (N.T. 5/25/01, 200, 204-05). These two witnesses put the gun in Richards' hand at the time of the shooting. Although Richards argues that the gun accidentally went off while he was pistol whipping the decedent, the testimony of the medical examiner belies this theory, as will be discussed in addressing the next argument.See infra, at 7-8. Considering all the evidence, we do not believe the Superior Court's determination was an unreasonable application of the law or an unreasonable determination of the facts.
Similarly, the jury heard testimony that Richards was Jamaican. Mr. Fredericks identified Richards as Jamaican (N.T. 5/25/01, 117) and stated that he could not understand some of the argument between Richards and Peanut because Richards was speaking in Jamaican. (N.T. 5/25/01, 106). Mr. Agostini also identified Richards as Jamaican. (N.T. 5/25/01, 225). Thus, Richards suffered no prejudice from the prosecutor's remarks identifying him as Jamaican.
Richards next claims that his counsel was ineffective for failing to request a supplemental charge regarding the "use" of a deadly weapon to infer a specific intent to kill. As previously discussed, the defense theory of the case was that this was an accidental shooting, which occurred while Richards was pistol whipping the victim and the gun misfired. There was testimony that could support such a theory. Mr. Agostini testified that he saw Mikey Lala pull a gun on Peanut and hit Peanut with the gun. (N.T. 5/25/01, 208). Mr. Agostini then turned his head and heard the shot. Id. Similarly, Mr. Fredericks stated that Richards had hit him in the chest with the gun. Then, according to Mr. Fredericks, Richards again yelled at Peanut, pulling the gun on him. Peanut put his hands up to protect his face. Mr. Fredericks then looked at his chest where Richards had hit him with the gun, and heard the shot fired. (N.T. 5/25/01, 104-107).
However, the problem with this defense theory is that there was ample evidence to support the prosecutor's theory that Richards used the gun, as a firearm, to kill Peanut. Edwin Lieberman, M.D., the Assistant Medical Examiner, testified that Mr. Ferdinand had sustained one gunshot wound to the back of the head and two blunt force wounds, caused by the butt of a gun, to the top of the right shoulder and the right side of the forehead. (N.T. 5/30/01, 6-8). Dr. Lieberman explained that the gunshot wound was not consistent with a contact wound and he testified that the placement of the gunshot wound was not consistent with the gun discharging during the infliction of the blunt force wounds to the victim's shoulder or forehead.
Being struck on the top of the shoulder with the butt of a gun, if the person is standing in front holding the gun, holding it by the muzzle so that the butt is free or holding it by the butt of the gun and striking downward, the muzzle would be pointing forward or backward, not at the back of the head in this direction as I've outlined. Nor would a muzzle ever come close to the back of the head being struck in the front with the butt of a gun. Remember, a gun looks like sort of an L-shape or a 7. So if you're struck with the short side, the butt, over the forehead this way, the muzzle would be pointing down or pointing up or pointing off to the side, but it can't curve around to the back of the head to cause the wound.
(N.T. 5/30/01, 13). Thus, as the District Attorney asserts, "the case hinged on whether the shooting was `accidental' or deliberate." Response, at 18.
Richards contends that the jury instruction regarding specific intent allowed the jury to improperly find such intent. The jury charge at issue is as follows:
When considering whether the defendant had the specific intent to kill, you should consider all the evidence including his words, his conduct, his actions, and any intending circumstances which may show his state of mind. If, for example, you believe that the defendant intentionally used a deadly weapon on a vital part of the defendant's [sic] body, you may regard that as an item of circumstantial evidence from which you may, if you choose, infer that the defendant had the specific intent to kill.
It is interesting to note that neither side noticed this typographical error in the judge's charge. If, as the jury was charged, the defendant had used a deadly weapon on a vital part of his own body, we would not be having this discussion.
(N.T. 5/30/01, 98). Richards contends that he used his gun as a blunt object, not as a firearm. Therefore, the charge allowed the jury to find the intent to kill to support a first degree murder conviction, when the weapon was not used for its intended purpose. Richards argues that his trial counsel should have requested a supplement to this charge, informing the jury that using the firearm as a blunt object would not suffice to establish intent to kill.
Here, as previously discussed, the Superior Court found that the jury was properly instructed. Therefore, counsel could not be considered ineffective for failing to request an instruction clarifying the specific intent charge. Since the state court correctly identified the governing legal standard for ineffectiveness claims, in order to succeed on his claim, Richards must establish that the state court "unreasonably applie[d] that principle to the facts of [his]case." Williams, 529 U.S. at 413.
[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly. Relief is available under § 2254(d)(1) only if the state court's decision is objectively unreasonable.Yarborough v. Alvarado, ___ U.S. ___, 124 S.Ct. 2140, 2150 (2004) (citations omitted). Based on the evidence and after reviewing the jury instructions, in their entirety, we do not find that the state court's conclusion is objectively unreasonable.
Looking at the jury charge, the judge informed the jury that, in order to find Richards guilty of first degree murder, they must find that he killed the decedent with the specific intent to kill and with malice. (N.T. 5/30/01, 97). The judge explained that, "[a] person has the specific intent to kill if he has a fully informed intent to kill and is conscious of his own intention." Id. He went on to explain that the jury should consider all the circumstances surrounding the crime to make this determination. He then gave the example of an individual intentionally using a deadly weapon on a vital part of the "defendant's" [sic] body as an item of circumstantial evidence from which the jury might infer the specific intent to kill. (N.T. 5/30/01, 98).
Thus, the use of the weapon was but one piece of information from which the jury might infer that Richards had formed the specific intent to kill. However, the court specifically instructed the jury that, in order to find Richards guilty of first degree murder, they were required to find that Richards "ha[d] a fully informed intent to kill and [was] conscious of his own intention." (N.T. 5/30/01, 97). The court also went on to define third degree murder:
Murder of the third-degree is basically an unlawful killing of a human being with malice, that is with an intention to inflict grievous bodily harm but not to take a life. And yet, as a result of the infliction of the injury death actually occurs. Third-degree murder includes any unlawful killing of a human being with malice where no intention to kill exists or can reasonably and fully be inferred.
(N.T. 5/30/01, 103).
According to Strickland, the petitioner must establish that counsel's performance was deficient — fell below an objective standard of reasonableness, and that the deficient performance prejudiced the defense. Strickland, at 687-88. It is true that the jury charge would have been clearer had the court specifically noted that hitting a person with a gun butt is not, by itself, the use of a deadly weapon on a vital part of the body. However, absolute perfection in a jury instruction is not the standard by which we are to judge the merits of a Strickland claim. Rather, the writ cannot issue unless we find that the state court "unreasonably" applied federal law.
Considering the evidence as a whole, it was not an "unreasonable" application of the Strickland standard for the state court to have concluded, as it did, that a perfect jury charge on specific intent would not likely have changed the outcome of Richards' trial. Based on all the evidence and after reviewing the jury charge in its entirety, it cannot be said that the Superior Court's decision was objectively unreasonable. Although the jury could infer intent from the use of a deadly weapon to a vital part of the victim's body, they could find such intent only if they concluded that Richards had a "fully informed intent to kill." If the jury chose to accept the defense theory of the case — that it was an accidental discharge and Richards did not intend to kill Peanut, the court's instructions would have led them to a verdict of guilty of murder in the third degree. Thus counsel's alleged error was neither deficient nor did it prejudice the defense. Therefore, I make the following:
RECOMMENDATION
AND NOW, this 23rd day of September, 2004, 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, 2004, 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.