Werts v. Vaughn

Citation228 F.3d 178
Decision Date15 September 2000
Docket NumberNo. 98-1764,98-1764
Parties(3rd Cir. 2000) TYRONE WERTS, Appellant v. DONALD T. VAUGHN; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Jeffrey M. Miller, Esquire, Susan J. Bruno, Esquire (Argued), Nasuti & Miller, Philadelphia, PA, COUNSEL FOR APPELLANT.

Marilyn F. Murray, Esquire (Argued), Assistant District Attorney, Donna G. Zucker, Esquire, Chief, Federal Litigation, Ronald Eisenberg, Esquire, Deputy District Attorney, Law Division, Arnold H. Gordon, Esquire, First Assistant District Attorney, Lynne Abraham, Esquire, District Attorney, Office of District Attorney, Philadelphia, PA, COUNSEL FOR APPELLEES.

Before: MANSMANN, McKEE and GREENBERG, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this appeal, we are asked to decide whether a habeas petitioner, who is presently serving a mandatory term of life imprisonment upon a conviction for second degree murder, was denied his constitutional right to a fair trial due to the prosecutor's alleged misconduct during the opening and closing arguments of his state court trial. The petitioner also contends in the alternative that he was denied effective assistance of counsel to the extent trial counsel failed to preserve his due process claim. With one exception, we find the petitioner's due process claim is procedurally defaulted. As to the nondefaulted due process issue, we find no merit to petitioner's claim. Moreover, we find that the state appellate courts' application of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), to petitioner's ineffectiveness claims was not objectively unreasonable. Accordingly, we will affirm the judgment of the District Court.

I.

The facts of this case are not disputed. On December 3, 1975, following a jury trial in the Court of Common Pleas of Philadelphia County, petitioner, Tyrone Werts, was convicted of second degree murder, robbery, criminal conspiracy, and possession of an instrument of a crime. We set forth the facts leading to Werts' arrest and conviction below.

Atlee Moore, a co-defendant, testified that on the date of the crime, he was home drinking when his friend, William Jones, stopped by and suggested they rob someone or some place. Moore suggested they rob a speakeasy, Shirley's, located on West Arizona Street in Philadelphia, Pennsylvania. Jones agreed and the two men then joined forces with the other co-defendants, Levan Spann, Bruce Norris, and Werts. The five co-defendants drove off in Spann's car towards Shirley's, with Spann at the wheel and Werts seated in the front passenger seat. Jones, Moore and Norris were positioned in the back seat of Spann's car. It was agreed that Spann and Norris would commit the robbery since both Moore and Jones were known and could subsequently be identified by the patrons at Shirley's.

Spann and Norris exited the vehicle and retrieved a shotgun and a pistol from the trunk of Spann's car which they hid in their clothing. They then proceeded into Shirley's. While Spann and Norris entered the speakeasy, Jones stood on the steps outside and Moore walked to a nearby alley. Werts remained seated in the front passenger seat of the car. Suddenly, a shot rang out and shortly thereafter, Spann and Norris swiftly exited the speakeasy. Quick on their heels, Moore and Jones followed Spann and Morris back to the car. Moore asked Spann and Norris what happened and Spann replied that Norris had shot someone. In fact, William Bridgeman had been shot and killed during the robbery which yielded a total sum of $ 35.

Spann dropped off the co-defendants one-by-one after their quick get-away from Shirley's. The next day, Moore turned himself in to the police upon learning that the police were looking for him in connection with the robbery and murder at Shirley's. Moore negotiated a deal with the prosecutor--he agreed to testify against Werts and the other co-defendants. In exchange, the prosecution agreed to charge Moore with a lesser offense, general murder, recommend that the sentencing court give serious consideration to leniency, arrange for Moore's bail to be reduced from $ 120,000 cash to $ 60,000 ROR, and get a federal detainer lifted so he could be released.

One month later, Werts was arrested in his home by a "phalanx" of police officers, armed with pistols and shotguns, who stormed the house and broke down the door with an axe. Werts was found hiding in a crawl space above a bedroom closet. The search and arrest of Werts was led by Detective McMillan, who was alleged to have beaten and bullied Werts at the time of his arrest. The police searched Werts' house for the murder weapon to no avail. Werts was then taken into custody where, without the benefit of counsel, he waived his Miranda rights and gave an incriminating statement to one of the homicide detectives. In essence, Werts stated that he was present when the other co-defendants decided to rob Shirley's, refused to go inside the speakeasy, and later disposed of the weapons.

Werts was tried separately from the other co-defendants. He testified that on the evening of the robbery and murder, he had been drinking heavily at a birthday party with three men, none of whom was one of the co-defendants. Werts testified that he became very drunk and stepped outside where he encountered Bruce Norris. Werts offered Norris five dollars to drive him home because he was too drunk to drive himself. Werts climbed into the front passenger seat of Norris' car and while waiting for Norris, fell into a deep sleep. Werts testified that the next thing he remembered was being awakened by the other co-defendants as they scrambled back into the car after the robbery and heard one of them say that Norris had shot someone. Werts denied being involved in planning the robbery or disposing of the weapons thereafter. No one disputes the fact that Werts did not enter the speakeasy.

The prosecution's case against Werts boiled down to Moore's testimony that Werts was present and to Werts' confession to the police that he disposed of the weapons. Consequently, the government's case against Werts would succeed or fail based on the strength of the alleged confession and Werts' credibility.

Werts attacked the accuracy and voluntariness of the alleged confession on the basis that he was suffering from increased back pain, brought on by police brutality which aggravated a prior back injury, and by heroin withdrawal at the time of the interrogation which seriously impaired his ability to give an accurate and voluntary statement. Werts presented the expert testimony of a psychiatrist, Dr. Nelson, on this issue who was allowed to give his professional opinion regarding the impact of trauma sustained at the time of the arrest to Werts' pre-existing lower back injury, a heroin addict's craving for heroin if he had not had an injection for 48 hours, the amount of stress from an intense craving for heroin, and about Werts' ability to resist his interrogators when he is under this mental stress. Dr. Nelson was not permitted, however, to give his professional opinion as to what the effect of an intense craving for heroin would be on Werts' ability to make a rational decision or as to Werts' primary motivation during his interrogation.

Werts also attempted to rebut the inference of guilt that flowed from Detective McMillan's testimony that Werts had been found hiding in a crawl space. In this regard, Werts attempted to explain that he was hiding from the police because he was afraid of them due to a prior encounter in 1969 when he was shot in the spine by the police and suffered serious injuries. The trial court, however, refused to allow Werts to explain why he was hiding.

After the jury returned a verdict of guilty as to all charges, Werts filed post-trial motions in which he raised, inter alia, prosecutorial misconduct during the closing statement, specifically focusing on the prosecutor's comment that Moore would be a "marked man" if sent back to prison. The trial court upheld its denial of Werts' motion for a mistrial after the prosecutor completed his summation, finding that the prosecutor's remarks were motivated in part by the conduct and statements of defense counsel in his closing statement. Thus, the trial court concluded that the statements did not constitute reversible error. After denying his post-trial motions, the trial court sentenced Werts to a mandatory term of life imprisonment for second degree murder, a consecutive term of five to ten years for criminal conspiracy, and concurrent terms of five to ten years for robbery and two and one-half to five years for possession of an instrument of a crime.

Through trial counsel, Colie B. Chappelle, Esquire, Werts appealed his sentence and conviction directly to the Pennsylvania Supreme Court. In his direct appeal, Werts raised numerous claims of error in which he argued that he was denied a fair trial by the prejudicial and improper comments of the prosecutor including, but not limited to, the comment that Moore was a "marked man." Werts specifically referenced several other allegedly improper comments made by the prosecutor, none of which are at issue in the federal habeas petition before us. In his direct appeal, Werts further argued that the trial court's denial of his motion for a mistrial based on prejudicial remarks by Detective McMillan regarding stolen clothing,1 the prosecutor's inflammatory characterization of Werts as a dope addict and thief, and the prosecutor's inflammatory remark that Moore was a "marked man" violated his right to a fair trial and due process and...

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