Frey v. Fulcomer

• Citation: 132 F.3d 916
• Decision Date: 30 December 1997
• Docket Number: No. 95-9007,95-9007
• Parties: Roderick Herman FREY, Appellant, v. Thomas A. FULCOMER, Warden, State Correctional Institution at Huntingdon.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 916

132 F.3d 916

Roderick Herman FREY, Appellant, v. Thomas A. FULCOMER, Warden, State Correctional Institution at Huntingdon.

No. 95-9007.

United States Court of Appeals, Third Circuit.

Argued Dec. 17, 1996.

Decided Dec. 30, 1997.

Robert B. Dunham, (argued), Center for Legal Education Advocacy & Defense Assistance, Philadelphia, PA, Louis M. Natali, Jr. (argued), Temple University Law School, Philadelphia, PA, Penn B. Glazier, Lancaster, PA, for Appellant.

Joseph C. Madenspacher, District Attorney, John A. Kenneff (argued), First Assistant District Attorney, Office of the District Attorney, Lancaster, PA, for Appellee.

Before: BECKER, ROTH, and McKEE, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal by Roderick Frey, who was convicted by a Pennsylvania state court jury of murder in the first degree and was sentenced to death, from a final order of the district court denying his petition for a writ of habeas corpus. Frey's appeal requires us to consider whether the jury charge at the penalty phase of his trial violated the Eighth Amendment as construed in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). These cases hold that a death sentence should be vacated if the jury, upon receiving the judge's instructions, may have thought that it could only consider those mitigating factors which it unanimously found to exist. Because we conclude that the charge was reasonably likely to have had that effect, we will reverse the order of the district court and direct it to grant a conditional writ of habeas corpus permitting Pennsylvania to conduct a new sentencing proceeding or to sentence Frey to life imprisonment.

I. Facts and Procedural History

The following are the basic background facts. A fuller factual history is set forth in our opinion on Frey's previous appeal on different issues, see Frey v. Fulcomer, 974 F.2d 348, 351-56 (3d Cir.1992) ("Frey I ").

Roderick and Barbara Frey were married in 1956. By 1979, they were experiencing difficulty in their marriage and spoke of divorce. Financial difficulties and the death of their son in an automobile accident two years earlier had contributed to their marital discord. Frey apparently also had engaged in extramarital affairs. Frey worked as a truck driver for the Turkey Hill dairy chain. His job brought him into contact with Charles Zehring, the manager of a Turkey Hill convenience store, whom the Pennsylvania Supreme Court later described as suffering from mental illnesses, including paranoid schizophrenia. See Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700, 702 (1984). By mid-1979, Frey had begun discussing with Zehring his marital difficulties, as well as his concerns about the financial strain that would be caused by a divorce. Zehring suggested as a solution that Frey arrange to have Mrs. Frey killed in a manner that made her death appear accidental.

In October 1979, Barbara Frey sued Frey for divorce, and he moved out of their home. Around the same time, Frey and Zehring finalized an arrangement whereby Frey agreed to pay Zehring five thousand dollars to kill his wife. Frey financed the deal by borrowing the money from Barbara against their expected property settlement.

On November 8, 1979, Frey arranged to meet Barbara early in the morning at the Turkey Hill convenience store where she worked. Frey then passed along information to Zehring about her schedule and likely route to the store. In the meantime, Zehring, in exchange for five hundred dollars, enlisted the assistance of Richard Heberlig. Though Heberlig was initially led to believe that he would only be assaulting the intended victim, he became aware, on the morning of November 8, that murder was in fact planned.

Zehring and Heberlig set out at four a.m. on November 8 to locate and kill Barbara Frey. Posing as police officers, they pulled her car over to the side of the road and approached her. Their plan at that point was to beat Mrs. Frey into unconsciousness and then stage an auto accident as their cover. When she did not lose consciousness, Heberlig panicked and shot her in the chest. After the shooting, they moved Mrs. Frey's car to a nearby field where they failed in an attempt to set the car on fire. Frey subsequently paid Zehring the balance of the money he owed for the contract killing.

Barbara Frey's body was discovered by a passerby later that morning. On December 6, 1979, Frey confessed to the murder. Zehring and Heberlig were subsequently arrested, and all three men were charged with murder and conspiracy. Zehring and Heberlig pled guilty and received sentences of life imprisonment.

Despite an earlier confession, which he later recanted, Frey opted to stand trial before a jury. The defense called as a witness a psychologist who testified to Frey's low-to-normal IQ, his basically submissive personality, his minimal tendency to defend himself, and his risk averse nature. The defense proceeded to argue that Zehring had threatened Frey, and that Frey had paid Zehring the five thousand dollars as extortion money in an effort to protect his family. The jury was apparently unconvinced by the story, for it found Frey guilty of murder in the first degree.

A sentencing hearing followed immediately. After counsel for both Frey and the Commonwealth had presented their arguments, the court instructed the jurors on how they were to assess the evidence before them in order to decide whether Frey was to be sentenced to life imprisonment or to death. Part of that deliberative process involved consideration of the aggravating and mitigating circumstances in Frey's case, and the state trial judge gave the following instruction:

[T]he verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases.

App. at 286.

The judge then told the jury that there was only one relevant aggravating circumstance (contract murder) but that there were six possible mitigating circumstances: Frey's lack of prior convictions; the influence of mental disturbance; impairment of the ability to appreciate the criminality of the act; youth or advanced age; duress or substantial domination by another person; and any other circumstances that they, as jurors, would consider relevant. Finally, the judge instructed the jury that the Commonwealth must prove aggravating circumstances beyond a reasonable doubt, but that the defense need only prove mitigating circumstances by a preponderance of the evidence.

On May 15, 1980, after five and one-half hours of deliberation, the jury returned a sentence of death. Following his sentencing, Frey retained new counsel and appealed his conviction and sentence to the Pennsylvania Supreme Court, which affirmed. See Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984). In that appeal Frey raised several arguments, including a claim that his sentence was disproportionate relative to the life sentences given to his accomplices. The Pennsylvania Supreme Court held that the cases of Zehring and Heberlig were not "similar" for purposes of the proportionality review required by 42 Pa. Cons.Stat. Ann. § 9711(h)(3)(iii) (Purdon 1982).

In July 1984, Frey petitioned for relief under Pennsylvania's Post Conviction Hearing Act, 42 Pa. Cons. Stat. Ann. § 9543(3)(xiii) (Purdon 1982) alleging exculpatory after-discovered evidence--statements made by Zehring while in prison evidencing Zehring's domination of Frey. The Court of Common Pleas denied Frey's motion, and the Pennsylvania Supreme Court affirmed. See Commonwealth v. Frey, 512 Pa. 557, 517 A.2d 1265 (1986). The Supreme Court held that Frey could have elicited this evidence during the guilt phase of the trial, and, at all events, that a different verdict was unlikely.

Frey again petitioned under Pennsylvania's Post Conviction Hearing Act on various other theories, including ineffective assistance of counsel. Both the Court of Common Pleas and the Pennsylvania Supreme Court rejected Frey's claims, holding, inter alia, that Frey had suffered no prejudice from his counsel's failure to accurately state the law regarding mitigating circumstances to the jury at sentencing. See Commonwealth v. Frey, 520 Pa. 338, 554 A.2d 27 (1989). In this petition Frey also contended that the jury charge at the penalty phase of his trial violated Mills. This argument was also rejected. See 554 A.2d at 30-31.

His state court remedies exhausted, Frey then filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254 (1988), in the District Court for the Eastern District of Pennsylvania. Although the district court denied the petition with respect to all guilt phase issues, it found that Frey had received ineffective assistance of counsel at the penalty phase and was prejudiced thereby, and that the court had improperly admitted certain testimony at that stage of the proceedings as well. ¹ Accordingly, the district court granted Frey a writ of habeas corpus, without prejudice to the Commonwealth's right to resentence Frey to life imprisonment, or alternatively, to conduct further proceedings.

The Commonwealth appealed to this court, and on July 10, 1991, we vacated the district court's grant of habeas corpus relief. See Frey I. We held that although performance of defendant's trial counsel was deficient at the penalty stage, habeas relief was not appropriate under the test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), since it was not reasonably probable that the jury would have sentenced Frey to life imprisonment rather than death had Frey been afforded effective assistance of counsel. ² We also held that Frey was not denied due...