307 F.3d 36 (3rd Cir. 2002), 00-9004, Marshall v. Hendricks

Docket Nº:00-9004
Citation:307 F.3d 36
Party Name:Marshall v. Hendricks
Case Date:September 11, 2002
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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307 F.3d 36 (3rd Cir. 2002)

Robert O. MARSHALL, Appellant


Roy L. HENDRICKS*, Administrator, New Jersey State Prison; John J. Farmer*, Attorney General, State of New Jersey

*Caption amended per Court's Order of 8/8/00

No. 00-9004.

United States Court of Appeals, Third Circuit

September 11, 2002

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Stephen W. Kirsch [Argued], Office of Public Defender, Richard J. Hughes Justice Complex, Trenton, NJ, Counsel for Appellant.

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Robert E. Bonpietro [Argued], Office of Attorney General of New Jersey, Department of Law & Public Safety, Division of Criminal Justice, Richard J. Hughes Justice Complex, Trenton, NJ, Counsel for Appellees.

Before: BECKER, Chief Judge, ROTH and RENDELL, Circuit Judges.


RENDELL, Circuit Judge.

Robert 0. Marshall unsuccessfully appealed his sentence of death in the New Jersey courts. He then sought habeas corpus relief in the United States District Court for the District of New Jersey, and having been denied relief there, he has appealed to our court. For the reasons set forth below, we will affirm the District Court's orders as to all claims regarding the guilt phase of Marshall's trial, but we will remand for further evidentiary development as to his claim that his attorney was ineffective in the penalty phase.

I. Facts

Robert O. Marshall, a successful insurance salesman and active member of the community in Toms River, New Jersey, was convicted and sentenced to death in 1986 for having hired someone to murder his wife, Maria, in order that he might gain approximately $1.5 million in insurance proceeds. During the months prior to his wife's death, Marshall had been involved in an affair with Sarann Kraushaar, who, with her husband, belonged to the same country club as the Marshalls. Their affair had advanced to the point that they had made plans to leave their respective spouses, establishing a safe deposit box for joint assets and preparing to lease a cottage together.

Marshall frequented the casinos in Atlantic City and found himself burdened by debt. Within a year of Maria's death, Marshall purchased increasing amounts of insurance on Maria's life. On September 6, 1984, Maria and her husband both were examined by a physician to qualify for an additional insurance policy. That night, while driving home from dinner and gambling in Atlantic City, Marshall allegedly experienced trouble with a tire while on the Garden State Parkway. He pulled into a darkened rest stop area, and, after he had exited the car to examine the tire, Marshall was hit on the head and Maria was fatally shot. We will reprise the facts at some length as they provide a necessary-background for understanding much of our analysis.

As police investigated, they uncovered numerous telephone calls from Marshall to Louisiana, primarily to a hardware store in Caddo's Parish. An employee at the hardware store, Robert Cumber, had attended a party in Toms River where he met Marshall. As Marshall told the story, during the course of the evening, he and Cumber discussed insurance and financial instruments, and, at some point, Marshall mentioned that he was seeking an out-of-town investigator to track missing casino winnings that he had given to his wife. He expressed his reluctance to hire a local investigator, since Toms River was a small community where news traveled quickly. After Cumber's return to Louisiana, Marshall mailed information on financial products to him. Cumber also put Marshall in contact with Billy Wayne McKinnon—although McKinnon did not use his real name in his dealings with Marshall, using the name James (or Jimmy) Davis instead—who agreed to conduct Marshall's investigation. Initially, Marshall's only contact with McKinnon was through telephoning Cumber—both at home and at the hardware store. Even after Marshall and McKinnon met in person,

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Cumber remained Marshall's primary contact in Louisiana. Marshall wired money to McKinnon—again as Jimmy Davis—on two occasions; McKinnon had a person whose name really was Jimmy Davis sign for the money each time. McKinnon traveled to Atlantic City to meet with Marshall three separate times. The numerous telephone conversations were, according to Marshall, following up on the financial information sent to Cumber. According to McKinnon, they were attempts to find out why it was taking so long for McKinnon to murder Maria Marshall.

On September 21, 1984, investigators met with Marshall in his home, and asked him whether he knew either James Davis or Billy Wayne McKinnon from Shrevesport, Louisiana. Marshall's sister, Oakleigh DeCarlo and Marshall's son, Robert were present during this meeting, which Marshall cut short by refusing to answer questions on the advice of his attorney. On September 25, 1984, Marshall admitted to Sarann Kraushaar that he had lied to her about his Louisiana contacts—he had previously told her they were related to payments he had made on bets on an NBA playoff game. Kraushaar then decided to end the affair. Shortly thereafter, on September 27, 1984, Marshall checked into a Best Western hotel, into the room that he and Kraushaar had frequented. He telephoned each of his sons, and he also prepared separate tapes for each son, his secretary, and his brother-in-law, Joseph Dougherty, who happened to be an attorney.1 He took the tapes addressed to his

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secretary and his brother-in-law to the front desk, where he placed them in a container for outgoing mail. He then added a large quantity of prescription sleeping pills to a soda, explaining later that he had intended to drink the soda and commit suicide that night, but had fallen asleep prior to consuming the drink.

Hotel personnel alerted the police that Marshall had checked into the hotel. When Marshall did not respond to a telephone call to his room, they forced entry and transported him to a hospital. His counsel, Glenn Zeitz, arranged for him to be transferred to a Philadelphia psychiatric hospital for observation. Police also seized the tapes, but did not play them until after they had secured a search warrant.

The prosecutor entered into a plea bargain favorable to McKinnon, offering him an extremely light sentence and assistance with entry into the witness protection program in return for testimony against Marshall and for naming and implicating the person who actually shot Maria Marshall. McKinnon named Larry Thompson as the shooter. Larry Thompson was a person whom Marshall had never met, who lived in Louisiana near McKinnon.

Marshall and Thompson were tried together. Opening statements were made on January 27, 1986. McKinnon testified at length, as did Kraushaar. Prior to and between McKinnon and Kraushaar, and at the close of the State's case, the prosecutor interspersed the testimony of persons who independently corroborated pieces of McKinnon's testimony with the testimony of the officers who responded the night of the murder and those who investigated the crime, including forensics experts. The State also elicited testimony from Maria Marshall's attorney and an investigator she had hired prior to her death, so the jury knew that Maria Marshall had been aware of Marshall's affair prior to her death. Other witnesses testified as to the existence, timing, and amounts of the insurance policies taken out against Maria's life. The contents of the "suicide" tape to Marshall's brother-in-law were also played for the jury.

McKinnon testified that on his first visit to New Jersey, he had made reservations at the Islander Motel in Atlantic City because Harrah's was booked. Since the taxi driver could not find the Islander, he had dropped him off at Harrah's, where McKinnon was able to get a room. McKinnon further testified that Marshall had asked McKinnon to kill Maria that night in the parking lot of a local restaurant, the Ram's Head Inn, but that, though he did visit the parking lot that night, it was crowded, and he simply returned to the hotel. A taxi driver then independently testified that he had picked McKinnon up at the airport on the date in question, could not find the Islander, dropped him off at Harrah's, and then, an hour later,

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took him to the Ram's Head Inn, where they drove around the building and then returned to Harrah's. Direct Testimony of Tae Yeon, February 10, 1986, St. Ex. 18T at 22-25. Shortly before noon on February 20, 1986, the State rested.

Marshall's case began with the testimony of the letter carrier who collected the mail from the Best Western hotel, seeking to establish that the tapes—which the trial court had refused to suppress—had been taken from a closed depository rather than an open container as the officers who seized the tapes had contended. Other Best Western employees were also called to testify as to the mail container. One, Zillah Hahn, also testified that she notified the authorities when Marshall checked in.

Marshall called an insurance salesman from Cranford, New Jersey, who testified briefly that Marshall was viewed as an "upstanding professional, insurance agent, businessman and family man," and that the community considered him to be "a law abiding citizen, that he has integrity, that he has truthfulness." Direct Testimony of Gerald Hughes, February 20, 1986, St. Ex. 26T at 144-46. On cross-examination, Hughes admitted that he was not a member of the Toms River community; rather his acquaintance with Marshall was through the insurance business and social occasions. Id. at 146-47. Other insurance and financial services salesmen testified about the...

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