Duncan v. Morton Admin. Atty. Gen. NJ

• Decision Date: 29 June 2001
• Docket Number: No. 99-5551,99-5551
• Citation: 256 F.3d 189
• Parties: (3rd Cir. 2001) EDWARD LAMONTE DUNCAN v. WILLIS MORTON, ADMINISTRATOR; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, JOHN J. FARMER, JR. <A HREF="#fr1-*" name="fn1-*">* Edward L. Duncan, Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 189

256 F.3d 189 (3rd Cir. 2001)

EDWARD LAMONTE DUNCAN v. WILLIS MORTON, ADMINISTRATOR; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, JOHN J. FARMER, JR.^*

Edward L. Duncan, Appellant

No. 99-5551

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued January 8, 2001

Filed June 29, 2001

[Copyrighted Material Omitted]

Arza R. Feldman, Steven A. Feldman (Argued), Feldman & Feldman, Hauppauge, N.Y., Attorneys for Appellant.

Robert L. Cerefice (Argued), Office of County Prosecutor, Newark, N.J. Donald C. Campolo, Assistant Attorney General, Acting Essex County Prosecutor, Newark, N.J., Attorneys for Appellees.

Before: SLOVITER, ROTH, and RENDELL, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge:

Petitioner Edward Duncan appeals from the order of the District Court denying his petition for a writ of habeas corpus. He argues that the court should have granted the writ because trial counsel had a conflict of interest and was otherwise ineffective. He also contends the trial court gave an erroneous accomplice charge which infected the entire trial. The issues raised and the procedural posture in which they reach us can be placed in context following a brief review of the facts.

I.

Duncan, Anthony Norman, Douglas Sherman, Caldwell Moody ("Caldwell"), and Clarence Moody ("Clarence") were at the Moody brothers' apartment in Newark, New Jersey on February 18, 1989 when Robert Henderson and Norris Holmes arrived outside the building and honked the automobile horn. Duncan asked Caldwell to go out and send Henderson, with whom Norman apparently had a drug-related monetary dispute, up to the apartment. When Henderson arrived at the apartment, accompanied by Holmes, they sensed a threat and fled, jumping through the building's glass door to escape. Duncan and Norman pursued them, holding guns. Shots were fired, Henderson sustained a hand injury, and Holmes was killed by a single bullet shot. Duncan and Norman fled.

Duncan was arrested on March 12, 1989. After waiving his Miranda rights, he gave a voluntary statement in which he admitted that he was present at the Moodys' apartment on the night of February 18. He placed the responsibility of the shooting on Norman, describing the events as follows: Norman had identified Henderson as having previously robbed him, and when Henderson drove up, accompanied by Holmes, Duncan directed Caldwell to get him and told Norman not to do anything. However, when Henderson and Holmes reached the apartment, Norman jumped at them with a gun and chased them down the stairs. Duncan then grabbed his gun and followed but the three others were already outside when he arrived downstairs and heard two gunshots. Norman told Duncan that he had shot Holmes in the leg. Seeing Holmes on the ground, Duncan led Norman inside and they left through the building's rear exit. Later, Duncan returned the gun to Cully, who had given him the gun because Duncan watched over Cully's drug money.

Norman was arrested on March 13, 1989, and he also made a voluntary statement. He claimed that both he and Duncan collected money for Cully, a drug dealer, and had been looking for Henderson on the night of February 18 to avenge a robbery. When Henderson and Holmes drove up outside the apartment, Duncan sent Caldwell to get them. Then, Norman stated, both he and Duncan waited for them with guns, chased them down the stairs, and shot at them. When they saw Holmes injured on the ground, they fled through the building's back exit, and Duncan got rid of the guns by returning them to Cully who had provided them to Duncan. His version did not identify which shooter actually killed Holmes.

A. State Court Proceedings

Duncan, Norman, Sherman, and Caldwell were indicted for the purposeful or knowing murder of Holmes, aggravated assault on Henderson, and two weapon-possession offenses. Duncan hired attorney Richard Roberts to represent him, agreeing to pay the lawyer from his $ 25,000 bail. Duncan told Roberts that Norman also needed an attorney, and Roberts recommended Michael Pedicini. Although Roberts and Pedicini (and two other lawyers) shared office space at the time, they were not officially partners and each had his own secretary, phone, and trust and expense accounts. When Norman retained Pedicini, the two attorneys agreed to split Duncan's bail money evenly.

The trial court severed the defendants' cases for trial. Norman was tried from February 14 to 16, 1990, represented by Pedicini, and was convicted of Holmes' murder, aggravated assault on Henderson, and the two counts of gun possession. On April 23, 1990, Duncan went to trial represented by Roberts, who introduced himself to the jury as "Richard M. Roberts, from the firm of Roberts, Pedicini and Fielo." 1T at 43.

At Duncan's trial, the prosecution called five witnesses, none of whom testified to witnessing the shooting. Clarence, the only witness present when Holmes was killed, recounted a confrontation between Norman and Henderson hours before Holmes' death and detailed the events in the Moody apartment before and after the shooting. Clarence's testimony portrayed Duncan as having a certain amount of authority over the group at the apartment. For example, he stated that Duncan had sent Norman to summon the Moody brothers back to their apartment after Norman's confrontation with Henderson, instructed Caldwell to bring Henderson up to the apartment after Norman identified Henderson for Duncan, and told Sherman to get out guns while waiting for Henderson to arrive. Clarence also testified that Duncan took a gun himself, gave a gun to Norman, hid behind the apartment door, confronted Henderson when he arrived, and, with Norman, chased Henderson and Holmes.

Detective Jack Eutsey, who had interviewed Duncan after his arrest, described the encounter and read Duncan's statement to the jury. Dr. Phito Pierre-Louis, the forensic pathologist who had performed Holmes' autopsy, described the cause of death (internal bleeding from a single gunshot wound). Officer Robert Purcell, who had responded to the shooting, described the scene and identified two bullets found there. Finally, Detective Frank Racioppi, the county investigator, detailed his efforts to find Henderson, a subpoenaed witness who failed to appear at the trial. After the State's case, the trial judge dismissed the assault charge because the State had not met its burden of proof, but denied Roberts' motion for acquittal of the murder charge.

Although Duncan's statement was admitted into evidence and read as part of Detective Eutsey's testimony, Duncan himself did not testify at trial. Nor did Roberts call any witnesses on behalf of the defense. In his closing, Roberts acknowledged that Duncan possessed a gun on the night in question and told the jury it should return a guilty verdict as to gun possession, but kept emphasizing that the State had not met its burden of proof on the other charges. He attacked Clarence's credibility, and urged the jury to acquit Duncan of the murder charge. The prosecutor, in turn, conceded he did not know whether Duncan or Norman had fired the fatal shot, but insisted that Clarence's testimony was credible, asserted that Duncan was guilty of purposeful murder either as a principal or as an accomplice, and emphasized that Duncan had orchestrated the incident that culminated in Holmes' death.

In charging the jury, the court gave detailed instructions on the murder and weapons counts, and on the lesser included offenses of aggravated and reckless manslaughter. The court also described the doctrine of transferred intent and gave a lengthy instruction on accomplice liability. During deliberations, the jury asked the court to "explain the definition [sic] between murder and aggravated manslaughter" and to "explain guilty by association." 4T at 2. In response, the court again read the murder, aggravated manslaughter, and accomplice liability charges to the jury. The jury found Duncan guilty of murder and the weapon-possession offenses. On May 15, 1990, the court sentenced Duncan to a lengthy prison term¹ for the murder, imposed a concurrent four-year sentence for the first gun-possession offense but vacated the second gun-possession verdict as having merged with the murder conviction.

Roberts, by then officially Pedicini's partner, filed an appeal of Duncan's conviction with the Appellate Division of the Superior Court of New Jersey ("Appellate Division"), challenging only the trial court's substitution of a deliberating juror and its admission of Duncan's allegedly involuntary statement. On July 12, 1991, in an unpublished per curiam opinion, the Appellate Division affirmed Duncan's conviction. Thereafter, Roberts ceased his representation of Duncan. The Supreme Court of New Jersey denied Duncan's petition for certification on September 24, 1992. In a separate proceeding, Norman's conviction was also affirmed by the Appellate Division, and his petition for certification was denied.

B. State Court Collateral Proceedings

On May 11, 1993, Duncan filed a pro se post-conviction relief ("PCR") petition. Attorney Connie Bentley McGhee filed a supplemental letter brief in support of the petition on January 6, 1995, and represented Duncan at his PCR hearing on January 25, 1995. The primary bases of Duncan's petition were ineffective assistance of counsel and his attorney's conflict of interest. Duncan, Roberts, and Alvin Norman ("Alvin"), Norman's brother, all testified at the hearing.

Roberts stated that he was a sole practitioner when Duncan hired him and during Duncan's trial. However, he acknowledged that he had entered into a partnership with Pedicini by the time he began preparing Duncan's appeal. As to fees, he testified that his division of Duncan's bail with Pedicini was not contingent on either attorney's performance. Roberts also claimed he had made a full disclosure to Duncan regarding his impending partnership and that Duncan had not objected to...