Johnson v. Tennis

• Decision Date: 19 November 2008
• Docket Number: No. 07-1968.,07-1968.
• Citation: 549 F.3d 296
• Parties: Gary JOHNSON, Appellant v. Franklin TENNIS, Superintendent; The District Attorney of the County of Philadelphia; The Attorney General of the State of Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

549 F.3d 296

Gary JOHNSON, Appellant v. Franklin TENNIS, Superintendent; The District Attorney of the County of Philadelphia; The Attorney General of the State of Pennsylvania.

No. 07-1968.

United States Court of Appeals, Third Circuit.

Submitted pursuant to Third Circuit L.A.R. 34.1(a) on September 12, 2008.

Filed November 19, 2008.

Cheryl J. Sturm, Esq., Chadds Ford, PA, for Appellant.

Joshua S. Goldwert, Assistant District Attorney, (Counsel of Record), Thomas W. Dolgenos, Ronald Eisenberg, Arnold H. Gordon, Lynne Abraham, Office of the District Attorney, Philadelphia, PA, for Appellees.

Before: SLOVITER, FUENTES and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal by Gary Johnson from the denial of his petition for habeas corpus by the District Court of the Eastern District of Pennsylvania requires us to decide an issue of first impression in this Circuit: Do the teachings of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), apply to a bench trial in a criminal proceeding? Bruton and its progeny established that in a joint criminal trial before a jury, a defendant's Sixth Amendment right of confrontation is violated by admitting a confession of a non-testifying codefendant that implicates the defendant, regardless of any limiting instruction given to the jury. See id.; Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); Cruz v. New York, 481 U.S. 186, 193-194, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). We hold that the Bruton rule is inapplicable to the incriminating confession of a non-testifying codefendant in a joint bench trial. By its own terms, Bruton applies to jury trials only. In so deciding we agree with every United States Court of Appeals that has considered the question.¹ Because of this threshold determination, we easily dispose of Johnson's claims that he was denied the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).²

Our review is limited to those issues approved by this Court in issuing a Certificate of Appealability: (1) whether Johnson was denied the right to effective assistance of trial and appellate counsel where trial counsel failed to litigate a motion for severance under Bruton and appellate counsel failed to raise the severance issue on appeal; (2) whether Johnson was denied the right to effective assistance of trial counsel where trial counsel failed to move the trial judge to recuse himself; and (3) whether the Superior Court's determination of these issues was contrary to, or an unreasonable application of, United States Supreme Court precedent.

The merits of this habeas appeal are further circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. §§ 2241-2254. When, as here, the legal claims of a petitioner in custody pursuant to a state court judgment have been adjudicated on the merits in state court proceedings, under § 2254(d)(1) the "only question that matters" is whether the adjudication of the claims "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." Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); 28 U.S.C. § 2254(d)(1).

I.

Because this appeal raises only questions of law, we set forth a brief description of the facts in the margin.³ Appellant Gary Johnson and co-conspirator Shawn Davis were found guilty of second degree murder and criminal conspiracy after a bench trial in the Common Pleas Court of Philadelphia. Each gave conflicting statements to the police implicating the other. Davis sought to suppress his statement but the state trial judge, Judge Latrone, denied his motion. At the behest of Johnson's defense counsel, Judge Latrone did, however, order that the statement be redacted prior to presentation to the court by substituting an "X" in place of Johnson's name.

At the joint non-jury trial of both Johnson and Davis, also held before Judge Latrone, the statement was only admitted against Davis, not Johnson. The trial judge found Johnson guilty of murder in the second degree and of conspiracy. At trial, Johnson was represented by Bernard Turner. After attorney Turner withdrew his appearance, attorney Louis Savino entered his appearance and filed post-trial motions. These motions were denied and Johnson was sentenced on February 9, 1995, to life imprisonment for murder in the second degree and a concurrent term of one to two years for criminal conspiracy.

Following Johnson's conviction, Judge Latrone wrote an extensive opinion in which he addressed the Bruton issue raised by Johnson in post-trial motions, stating: "The primary reasoning behind the Bruton Court's decision was that there was a tremendous risk due to the practical and human limitations of a jury that it would or could not follow instructions to disregard the prejudicial statements of a codefedant at a joint trial." Commonwealth v. Johnson, No. 3393, 3397, Feb. Term.1991, slip op. at 27, 1995 WL 17853723 (C.P.Phila.Oct.30, 1995) (Latrone, J.) ("Trial Ct. Op."). Judge Latrone explained that the teachings of Bruton could not be applied to Johnson's case because "this Court presided over a trial without a jury" and that "the risks inherent in the jury system of which the Bruton Court was so concerned would seemingly not exist when a judge is sitting as a trier of fact." Id. at 28.

On appeal, the Superior Court of Pennsylvania in a memorandum disposition adopted the trial court's opinion "in its entirety and affirm[ed] on the basis of the opinion of the trial court." Commonwealth v. Johnson, No. 3264, slip op. at 3 (Pa.Super.Ct. August 19, 1998); Commonwealth v. Johnson, 726 A.2d 412 (Pa.Super.Ct.1998). Similarly, on a subsequent appeal from the Common Pleas Court denying Johnson's petition for post-conviction relief, the Superior Court in a memorandum disposition adopted in full several pages of the post-conviction judge's opinion explaining that the teachings of Bruton could not apply because the stated rationale of the United States Supreme Court limited its application only to jury trials in criminal cases. Commonwealth v. Johnson, No. 3264, slip op. at 5-9 (Pa.Super. Ct. April 13, 2004); Commonwealth v. Johnson, 852 A.2d 1248 (Pa.Super.Ct.2004).

II.

The Bruton rule is inapplicable to the incriminating confession of a non-testifying codefendant in a joint bench trial because Bruton applies solely to jury trials. In so deciding, we join the myriad Courts of Appeals that have recognized that the rule and rationale of Bruton do not apply to bench trials.⁴ See, e.g., Castro, 413 F.2d at 895 n. 7 ("A jury may have difficulty in disregarding extrajudicial statements implicating a defendant. We will not presume that a judge suffers from the same disability. Indeed, the presumption is to the contrary."); Cardenas, 9 F.3d at 1154 ("Nothing in Bruton, or in later Supreme Court cases discussing Bruton, suggests that in a bench trial a judge is incapable of disregarding inadmissible extrajudicial statements implicating a defendant."); Rogers, 884 F.2d at 257 ("To apply Bruton to bench trials would be to conclude that judges, like jurors, may well be incapable of separating evidence properly admitted against one defendant from evidence admitted against another."); Faulisi, 611 F.2d at 178 (Bruton "is simply inapplicable in the case of a bench trial."); Cockrell, 413 F.2d at 258 ("The Bruton rule does not apply to [petitioner] because she was tried by the court and not by a jury. Nothing in Bruton suggests that a judge is incapable of applying the law of limited admissibility which he has himself announced."); see also 21A Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5064.2, at 290 & n. 5 (2d ed. 2005 & Supp.2007) ("[B]ecause Bruton seeks to protect the defendant against the inability of the jury to understand or abide by limiting instructions, the Bruton doctrine does not apply in cases tried to the court.").

We also join the Cardenas and Rogers courts in rejecting the notion that Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), expanded the Bruton doctrine to encompass bench trials. Lee dealt with whether a state trial judge's reliance upon a codefendant's incriminating pre-trial confession in a bench trial violates the right to confrontation, not, as in Bruton, whether the mere admission of such a confession is a violation. Id. at 531, 106 S.Ct. 2056. The Court accordingly observed that Lee was "not strictly speaking a Bruton case." Id. at 542. Bruton, the Court explained, was based "on the fact that a confession that incriminates an accomplice is so ... `devastating' that the ordinarily sound assumption that a jury will be able to follow faithfully its instructions could not be applied." Id. In contrast, in Lee the question was not whether the judge had been able to disregard the evidence, but whether the judge's actual use of the incriminating confession was permissible; the Court concluded that it was not.

The holding of Lee is thus distinguishable from, and does not expand the reach of, Bruton. "[A]bsent an express reliance by a trial judge on a non-testifying defendant's pre-trial confession—which facially implicates a co-defendant—in determining that co-defendant's guilt, we do not see how a Sixth Amendment confrontation issue can arise in a bench trial. No such express reliance exists in the instant case." Cardenas, 9 F.3d at 1155. See also Rogers, 884 F.2d at 257 ("Lee simply did not make Bruton applicable to bench trials.").

III.

Because Bruton does not apply to a bench trial, Johnson cannot have been deprived of any constitutional right based on Bruton. Accordingly, trial counsel was not ineffective for failing to make a pretrial motion for severance after the redacted statement of...