Constant v. Pa. Dep't of Corr.

• Citation: 912 F.Supp.2d 279
• Decision Date: 14 December 2012
• Docket Number: Civil Action No. 11–0822.
• Parties: Edward CONSTANT, Petitioner v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Michael Wenerowicz (Superintendent), Wendy Shaylor (Superintendent's Assistant), Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

912 F.Supp.2d 279

Edward CONSTANT, Petitioner
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Michael Wenerowicz (Superintendent), Wendy Shaylor (Superintendent's Assistant), Respondents.

Civil Action No. 11–0822.

United States District Court,
W.D. Pennsylvania.

Dec. 14, 2012.

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Thomas J. Farrell, Farrell & Reisinger LLC, Pittsburgh, PA, for Petitioner.

Ronald M. Wabby, Jr., Office of the District Attorney, Pittsburgh, PA, for Respondents.

MEMORANDUM OPINION
CYNTHIA REED EDDY, United States Magistrate Judge.
I. INTRODUCTION

For the reasons set forth below, Edward Constant's Petition for Writ of Habeas Corpus will be denied in part and granted in part.

A. Double Jeopardy And Ineffective Assistance Of Counsel

Federal habeas relief is not warranted on petitioner's claim that trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for waiving a Double Jeopardy challenge to his retrial. After a guilty verdict but before sentencing, trial counsel successfully moved for a new trial based upon after discovered evidence that the tipstaff had improper and prejudicial communications with the jury during its deliberations. Petitioner now asserts that the tipstaff's conduct amounted to “quasi-judicial misconduct” serious enough to invoke the protections of the Double Jeopardy Clause and to bar retrial, and that effective counsel would have moved to dismiss the charges, rather than for a new trial.

The Court of Common Pleas of Allegheny County found counsel was not ineffective because a new trial, not dismissal of charges, was the appropriate remedy for the tipstaff's improper communication with the jury, and the Superior Court of Pennsylvania affirmed. The decision of the state courts was neither contrary to, nor did it involve an unreasonable application of, clearly established federal law, and was based upon a reasonable determination of the facts in light of the evidence presented in the state court proceedings. The Petition for Writ of Habeas Corpus will therefore be denied on this ground.

B. Right to a Public Trial—Jury Selection

Petitioner also claims that the trial Court's closure of voir dire to his wife and the general public violated his Sixth Amendment right to a public trial. Jury selection is an integral and critical component of any criminal proceeding which must, presumptively, be open to the public

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and the press; while the Sixth Amendment right to public trial is not absolute and inflexible, closure is and should be the rare exception, and may not be ordered absent careful balancing of competing interests, consideration of alternatives to closure, and articulation of findings. See Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 724, 175 L.Ed.2d 675 (2010).

The Court of Common Pleas prohibited petitioner's wife and the general public from attending his jury selection, although “the media” were permitted to attend, and the Superior Court endorsed the prohibition. Neither the trial Court nor Superior Court identified an overriding interest or a substantial reason that would suffice to justify their categorical exclusion of a spouse and the general public from jury selection, and their stated reason for closure is affirmatively contradicted by the state court records.

Because the Courts did not follow the substantive or procedural imperatives prescribed by the United States Supreme Court in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) and Press–Enterprise Co. v. Superior Court of California (“Press–Enterprise I”), 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), the closure of voir dire to petitioner's wife and the public violated petitioner's Sixth Amendment right to a public trial. The decision of the Pennsylvania courts is contrary to, or an unreasonable application of, clearly established, long standing federal law, and, additionally, is based upon an objectively unreasonable determination of the facts in light of the evidence presented in the state court proceedings. The Petition for Writ of Habeas Corpus will therefore be granted on this ground.

II. BACKGROUNDA. The Offenses, Convictions and Sentence

At his second trial, petitioner was tried and convicted on February 2, 2005, by a jury in the Court of Common Pleas of Allegheny County, Pennsylvania, of two (2) counts of Criminal Attempt—Homicide, two (2) counts of Aggravated Assault—Serious Bodily Injury, one (1) count of Aggravated Assault—Causing Bodily Injury, and one (1) count of Recklessly Endangering Another Person. Petitioner was sentenced in the aggregate to a term of imprisonment of not less than 14 1/2 years nor more than 29 years, and a ten year term of probation. The facts underlying the convictions are as follows.¹

On May 26, 2002, Municipality of Mt. Lebanon Police Officers Daniel Rieg and Jeffrey Kite responded to a domestic disturbance at the residence of Edward and Susan Constant. When the police officers knocked on the door, petitioner answered; he was visibly angry, belligerent and hostile. Mrs. Constant joined the conversation in the doorway; she was also angry, and she told the officers to leave.

Before she could shut the door, petitioner reappeared and grabbed his wife from behind, causing her to fall to the floor. In the ensuing tumult, petitioner Constant left the front hallway, but soon returned with a .44 caliber magnum revolver, pointed the weapon directly at Officer Rieg and pulled the trigger. The bullet struck Officer Rieg in the chest, knocking him back through the doorway, onto the front porch and over the railing into the front yard. Fortunately, Officer Rieg's protective vest prevented the bullet from entering his body.

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Officer Kite scrambled for cover as petitioner fired several more shots and advanced off the porch. Officer Rieg was able to pull his own weapon and fire twelve rounds, one of which struck Constant in his buttocks, causing him to fall to the ground, whereupon police officers subdued and arrested him. Petitioner's handgun contained six spent cartridges, indicating that it had been fired six times.

B. State Court Proceedings and Decisions1. Trial Proceedings in the Court of Common Pleas of Allegheny County
a. First trial

Petitioner's first trial ended with convictions on all charges except Simple Assault against his wife, on which he was acquitted. Following the verdict but prior to sentencing, a juror contacted trial counsel anonymously and informed him that the court's tipstaff had initiated and engaged in improper communications with the jury during its deliberations. Interviews with other jurors confirmed that improper communications between the jury and the tipstaff had taken place during deliberations.

Petitioner filed a motion for a new trial and motion for recusal of the presiding judge. After a flurry of motions, briefs and an evidentiary hearing before the Administrative Judge of Criminal Division, the Court agreed that the tipstaff had engaged in improper and prejudicial conversation with the jury, and granted the motion for new trial. The motion to recuse the presiding judge was denied.

In granting the motion for a new trial, the Administrative Judge found that, although the tipstaff's comments to the jury were “not emotional or inflammatory in nature” and were not intended to prejudice petitioner, nevertheless her remarks were sufficiently prejudicial to petitioner to warrant a new trial. Prior to retrial, trial counsel filed a motion to dismiss the charges on Double Jeopardy grounds, and a motion to recuse the trial judge. That judge denied the motion to dismiss but eventually recused himself, and the case was then reassigned to another judge of the Court of Common Pleas. After an unsuccessful interlocutory appeal to the Superior Court of Pennsylvania from denial of the motion to dismiss, the Court scheduled the retrial.

b. Second trial

Jury selection began on January 21, 2005, and lasted two (2) days. As is the customary practice in the Court of Common Pleas of Allegheny County, jury selection was by individual voir dire conducted by counsel in a common jury selection room, without the presiding judge. See Commonwealth's Answer to Petition for Writ of Habeas Corpus, (ECF No. 5), at 25.

Trial counsel's affidavit from state court post-conviction proceedings avers the following: Sometime during the mid-afternoon on the first day of jury selection, the presiding trial judge entered the anteroom immediately adjacent to the common jury selection room. Upon observing trial counsel speaking to Mrs. Constant, the judge ordered her to leave the jury selection room, stating that neither she nor the general public were permitted to be present, although members of the media could attend. At the end of the first day, trial counsel objected to Mrs. Constant's exclusion on the record. The Court affirmed its decision to exclude Mrs. Constant, and all members of the general public, from jury selection. No member of the public and no representative from the media were present on the second day. Petition for Writ of Habeas Corpus (docketed as Motion Under 28 U.S.C. § 2254 To Vacate And

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Set Aside Sentence By A Person In State Custody, (ECF No. 1) (“Section 2254 Motion”)), Trial Counsel's Affidavit, Exhibit 6 (ECF No. 1–6) at ¶¶ 8, 10–11, 14; Jury Voir Dire Transcript, Exhibit 7 (ECF No. 1–7) at 165–172.

Counsel's affidavit describes the jury selection room as accommodating approximately 200 people, with many chairs and at least two tables, and a row of chairs against the wall to the right of the public doorway. Trial counsel further attests that, other than the prospective jurors, on the first day of jury selection only one local reporter and petitioner's wife were present and seated in the common jury selection room, and the “remaining chairs were unoccupied.” Trial Counsel's Affidavit, Exhibit 6 (ECF No. 1–6) at ¶ 6.

The Commonwealth ² concedes that Mrs....