Glenn v. Wynder

• Decision Date: 20 February 2014
• Docket Number: No. 12–4333.,12–4333.
• Citation: 743 F.3d 402
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Luther GLENN, Appellant v. Supt. James T. WYNDER; District Attorney of the County of Allegheny; Attorney General of the Commonwealth of Pennsylvania.

743 F.3d 402

Luther GLENN, Appellant

v.Supt. James T. WYNDER; District Attorney of the County of Allegheny; Attorney General of the Commonwealth of Pennsylvania.

No. 12–4333.

United States Court of Appeals, Third Circuit.

Argued Nov. 21, 2013.

Filed: Feb. 20, 2014.

Adam B. Cogan [argued], Ligonier, PA, for Appellant.

Rusheen Pettit [argued], Rebecca D. Spangler, Allegheny County Office of District Attorney, Pittsburgh, PA, for Appellees.

Before AMBRO, SMITH, and CHAGARES, Circuit Judges.

OPINION

SMITH, Circuit Judge.

Appellant Luther Glenn was tried and convicted of the murder of William Anthony Griffin in the Court of Common Pleas of Allegheny County (“Court of Common Pleas”) and is currently a prisoner of the Commonwealth of Pennsylvania. Glenn appeals the ruling of the United States District Court for the Western District of Pennsylvania (“District Court”) denying his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He argues that (1) the Court of Common Pleas violated his rights under the Due Process Clause of the Fourteenth Amendment by refusing to grant his motion for a mistrial after an eyewitness proffered contradictory testimony, opting instead to strike the entirety of this testimony and provide cautionary jury instructions, and (2) after the Court of Common Pleas struck this testimony, his trial counsel was ineffective in not moving to strike other evidence in the record that referred to this witness's identification of Glenn as the murderer. For the reasons that follow, we will affirm the judgment of the District Court.

I.

On December 17, 1997, William Anthony Griffin was shot and killed on Sterrett Street in the Homewood neighborhood of Pittsburgh, Pennsylvania. Days later, on December 22, 1997, Glenn was arrested after fleeing from the police in a stolen vehicle. He was subsequently charged with Griffin's murder.

Glenn's trial in the Court of Common Pleas took place in June of 1999. During that trial, Georgianna Cotton testified that she witnessed Glenn murder Griffin. Cotton originally testified that after leaving a bar at 5:00 AM, intoxicated to the point of staggering,¹ she encountered Griffin on Sterrett Street and engaged in a brief conversation with him. As she made her way into a nearby partially abandoned building to smoke marijuana and crack cocaine, she saw Glenn standing on the corner of Sterrett Street and Kelly Street, talking with some of his friends. Cotton entered the building, climbed the stairs to the second floor, and began smoking crack cocaine on a balcony that overlooked the street.² She soon heard (and possibly saw) Glenn and Griffin arguing, and then heard Glenn tell Griffin he was going to kill him.³Id. Shortly thereafter, Cotton saw Glenn walk around the corner onto Kelly Street and saw Griffin enter the first floor of the building she was in. Within a few seconds, she saw Glenn return in a blue station wagon, pull up in front of the building, and jump out of the car brandishing a pistol sideways. She saw Glenn pull a hoodie over his head, run towards Griffin—who was then standing in the doorway of the building—and shoot him six times. She then saw Glenn return to the car and leave. Finally, Cotton testified that, as she was running down to check on Griffin, she encountered Dwayne Youngblood (“Youngblood”), the occupant of a first-floor apartment in the building in which Griffin was shot, who told her not to say anything about the murder she had just witnessed.

On cross-examination, Cotton began to contradict herself. She testified that she had not actually seen the shooter's face, but was able to identify Glenn based on what people told her on the streets. On redirect, she testified that she was present during the murder, but that she “was also threatened.” At that point, the judge declared a recess to address Cotton's contradictory testimony in his chambers. During this in camera proceeding, Cotton at first told the judge that she had indeed witnessed the murder, but that she had been threatened “[b]y the defendant's people on the street.” After receiving promises that she would not be prosecuted for perjury, she then said that she did not see the murder, but that people told her Glenn was the murderer. She went on to equivocate about whether Youngblood (the first-floor resident) had asked her to testify against Glenn or specifically asked her not to testify against Glenn.⁴ Thereafter, the judge adjourned the trial until the followingday to provide the prosecutor with an opportunity to assess his case and decide how to proceed. In the interim, the Commonwealth granted Cotton immunity from any potential perjury charges and she received a court-appointed attorney.

The next day, Cotton again took the stand. On redirect-examination, she testified that during the previous day's in camera proceeding she had told the attorneys and the trial judge that she had not seen Glenn kill Griffin. When the Commonwealth asked her to provide a truthful account of what, if anything, she saw or heard, she claimed that she heard arguing and gunshots, but did not see anything until after the shooting, when she witnessed Glenn and “a couple other guys” running away from the crime scene and jumping into a car. When asked why she changed her story, she claimed that she “was scared for somebody else's life that knew what happened.” On recross-examination, however, Cotton testified that she did see shots being fired, at which point Glenn's counsel moved for a mistrial. In response, the judge declared a recess.

After some discussion between the court and counsel, the judge denied the motion for a mistrial but invited defense counsel to move to strike Cotton's entire testimony from the record. Glenn's counsel promptly did so. Thereafter, the judge returned the jury to the courtroom and issued the following instructions:

THE COURT: Good afternoon, ladies and gentlemen. The Court has made the following ruling on its own motion: You are to completely [and] totally disregard the testimony of Ms. Cotton. Her testimony is not to play any part in your determination as to the facts in this case. It is as if she has not testified. Do you understand that, ladies and gentlemen?

THE JURY: Yes.

J.A. 645.

Cotton's testimony was not the only incriminating evidence offered at trial. The Commonwealth also presented testimony from Jerry Pratt, an inmate who shared a cell with Glenn in the Allegheny County Jail after Glenn's arrest. Pratt testified that, on January 28, 1998, Glenn told him that he had murdered Griffin in the Homewood neighborhood of Pittsburgh, Pennsylvania following an argument over “a bad drug deal.” Glenn also told him that a female had witnessed the crime from the balcony of an apartment building, but that her testimony would not hold up in court because she was a crack addict and because her view was obscured. When Pratt opined that this testimony could still be damaging, Glenn responded “I'm really not worried about it, because I have a person out there who can take care of her for me.” J.A. 706. Glenn identified that person as Monte Blair.

The Commonwealth then offered evidence that two days before the alleged conversation between Glenn and Pratt police had engaged in a vehicle pursuit of Blair, in which Blair had crashed his vehicle but escaped on foot. When police searched Blair's wrecked vehicle, they recovered a .45 caliber Glock semi-automatic handgun loaded with 13 rounds of ammunition and equipped with a laser sight. During summation, the Commonwealth argued that when police engaged Blair's vehicle he was en route to murder Cotton in order to prevent her from testifying.

The Commonwealth also presented testimony from Charina Johnson, who was involved in a sexual relationship with Glenn prior to Griffin's murder. Johnson told the jury that Glenn had asked her to testify that he was at her house at the time of the murder but that she had refused to do so. She went on to testify that she could not remember if he was there, though she was impeached with a prior statement that Glenn was not there and had asked her to lie.⁵

Finally, the Commonwealth presented testimony from Youngblood that Glenn had been at his residence (located in the apartment building where Griffin was shot) six to seven hours before the shooting occurred.

At the close of the trial, the judge reiterated his earlier instruction to disregard Cotton's testimony:

THE COURT: [Y]ou must not consider any testimony ... which I have ordered stricken from the record. So that it is clear, Ladies and Gentlemen, I ordered st[r]icken from the record the testimony of Ms. Cotton. You must not, I repeat, must not, consider that testimony for any reason whatsoever. It should be as if that witness never took the stand.

J.A. 884.

On June 11, 1999, the jury convicted Glenn of first-degree murder and the judge sentenced him to life imprisonment. Glenn then filed post-sentencing motions, which were denied on October 25, 1999. Thereafter, the Pennsylvania Superior Court (“Superior Court”) affirmed his conviction and the Supreme Court of Pennsylvania denied his Petition for Allowance of Appeal.

After unsuccessfully pursuing collateral relief in the Pennsylvania courts, Glenn timely filed a Petition for a Writ of Habeas Corpus with the District Court on April 18, 2006. On September 19, 2012, the District Court denied his petition, but later granted a certificate of appealability on the following issues: (1) whether the Court of Common pleas violated Glenn's due process rights when it refused to grant a mistrial, opting instead to strike Cotton's testimony, and (2) whether, after Cotton's testimony was stricken, trial counsel was ineffective in not moving to strike other evidence referring to Cotton's identification of Glenn as the shooter. Glenn timely appealed.

II.

We have jurisdiction over Glenn's claims by virtue of the District Court's certificate of appealability and 28 U.S.C. §§ 1291 and 2253. The District...