Hassine v. Zimmerman

• Decision Date: 09 November 1998
• Docket Number: No. 97-1969,97-1969
• Citation: 160 F.3d 941
• Parties: Victor HASSINE, Appellant, v. Charles ZIMMERMAN, Superintendent, and the Attorney General of the State of Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

Page 941

160 F.3d 941

Victor HASSINE, Appellant, v. Charles ZIMMERMAN, Superintendent, and the Attorney General

of the State of Pennsylvania.

No. 97-1969.

United States Court of Appeals, Third Circuit.

Argued Aug. 4, 1998.

Decided Nov. 9, 1998.

Donald J. Goldberg (Argued), Leslie H. Smith, Ballard Spahr Andrews & Ingersoll, LLP, Philadelphia, PA, for Appellant.

C. Theodore Fritsch, Jr. (Argued), Stephen B. Harris, Alan M. Rubenstein, District Attorney's Office, Doylestown, PA, for Appellees.

Before: NYGAARD, ALITO, and RENDELL, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge:

On January 4, 1983, a Pennsylvania state court sentenced Victor Hassine to life in prison, following his 1981 conviction on charges of first degree murder, attempted murder, criminal conspiracy, and criminal solicitation. Now, more than fifteen years later, we are faced with the question of whether to vacate Hassine's conviction by granting his petition for habeas relief brought pursuant to 28 U.S.C. § 2254. Hassine contends that relief is warranted because the state prosecutor sought to use his post-arrest silence for impeachment purposes at trial in violation of the due process principles established in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The district court found that a Doyle violation had occurred, but it concluded that any constitutional error was harmless under the standard announced in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). We agree that the prosecutor violated Doyle by seeking to elicit testimony concerning Hassine's post-arrest silence. We also agree that Brecht is the proper standard to apply on collateral review. Because we agree further that the Doyle violation was harmless under Brecht, we will affirm.

I. FACTUAL AND PROCEDURAL HISTORY

A. The Murder Conspiracy

This case arises out a conspiracy involving Hassine and his co-conspirators George Gregory Orlowski and William Eric Decker, which culminated in the August 22, 1980, murder of James Puerale and the shootings of Albert "Skip" Kellet and Lois Kellet.

The evidence at trial showed that Hassine first met Orlowski in 1979, and that shortly thereafter they decided to open a store in Morrisville, Pennsylvania, called Greg's Quality Meat Market ("the Market"). The store was financed by Hassine's family, overseen and supervised by Hassine himself, and operated on a daily basis by Orlowski. However, the Market soon experienced financial problems, and, with Hassine's knowledge, Orlowski began selling marijuana and methamphetamine from a back room in the store.

In June 1980, Albert Kellet, a close friend of Orlowski, purchased $150 of methamphetamine at the Market. Upon returning home, Kellet discovered that the drugs were of inferior quality and he became enraged. He called Orlowski and invited him to his apartment under the false pretense of wishing to buy more methamphetamine. When Orlowski arrived, Kellet threatened him with a club, stole all of his money and drugs, and threw him out of the apartment.

Several days later, Orlowski, Hassine, and Decker, among others, met at the Market to discuss Kellet's actions. The State's witnesses testified that at this meeting, Hassine announced that he wanted Kellet "wasted" and that if Lois Kellet, Albert's wife, was present, she "was to go also, because any witnesses had to go." As a result, Hassine, Decker, and Orlowski made several attempts over the next month to obtain a gun with which to kill Kellet, and they investigated the possibility of paying two other individuals to have Kellet murdered. A number of confrontations between Hassine and Kellet also erupted during this time, and, on at least one occasion, Hassine instructed Decker to shoot Kellet and to kill him. Because it was daylight and a witness was present, Decker declined. Nevertheless, on August 22, 1980, Decker had his own encounter with Kellet, and he returned to the Market to tell Hassine that "[t]onight's the night--the cat's got to go. We'll use your gun."

According to the State's witnesses, Hassine picked Decker up later that evening and drove him to Hassine's parents' house in Trenton, New Jersey. While Decker waited in the car, Hassine entered the house and obtained his father's .380 caliber Llama handgun. Hassine then drove Decker to Kellet's apartment building and gave him the gun and a New York Yankees batting helmet to cover his hair. As Decker approached the building, he saw Kellet in a first-floor apartment watching television with his wife Lois, and with James Puerale and George Sofield. Decker entered the apartment, surveyed the room, and opened fire, killing Puerale instantly and injuring Skip and Lois Kellet with shots to the head.

The police arrested Decker the next day, and arrested Hassine three months later, charging Hassine with first degree murder, attempted murder, conspiracy, and solicitation.

B. The Murder Trial

The State presented thirty-four witnesses at Hassine's trial, including Decker, who had negotiated a plea bargain with the District Attorney to avoid the death penalty. Decker and the other witnesses testified as to the details of the murder conspiracy and described Hassine's extensive involvement in the plot to murder Kellet.

Hassine then took the stand in his own defense and, for the first time since his arrest, offered an innocent explanation for his role in the conspiracy. He testified that he had obtained his father's gun and stored it in the Market after Orlowski had asked him for protection from Kellet. He then claimed that Decker entered the Market on the day of the murder, and, without Hassine's knowledge, took the gun and left the store "ranting and raving, saying he was going to get Skip Kellet." Hassine thus maintained that he never told Decker to kill Kellet, that he never gave Decker a gun with which to carry out the crime, and that he was never part of the murder conspiracy.

Attempting to discredit these claims, the prosecutor asked Hassine a series of questions on cross-examination regarding Hassine's post-arrest silence. In particular, he inquired three times as to why Hassine had not offered the same exculpatory story to the authorities following his arrest. Hassine's attorney objected each time, believing that the questions violated Hassine's rights under Doyle v. Ohio, which provides that the government cannot use a defendant's post-arrest, post-Miranda silence for impeachment purposes at trial. 426 U.S. at 610, 96 S.Ct. 2240. The trial judge agreed, sustaining the objections and preventing Hassine from answering the prosecutor's questions. The prosecutor also made two general references to Hassine's silence in his closing argument. Nevertheless, the court did not provide curative instructions during Hassine's testimony or in the jury charge.

The case was sent to the jury at the close of all evidence, and on June 11, 1981, the jury found Hassine guilty and recommended that he be sentenced to life in prison on the charge of first degree murder. After denying Hassine's motions for a new trial and arrest of judgment, the court adopted the jury's recommendation and sentenced Hassine to life imprisonment, in addition to several consecutive prison terms extending from two to twenty years.

C. Review of the State Court Conviction

Hassine appealed his conviction to the Superior Court of Pennsylvania, assigning fifteen reversible errors to the trial court. See Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438, 443-44 (Pa.Super.Ct.1985) ("Hassine I "). Among other things, he argued that the state prosecutor had violated the due process principles established in Doyle by interrogating him on the witness stand about his post-arrest silence. On February 8, 1985, the Superior Court denied Hassine's appeal in its entirety and affirmed his sentence, finding that his list of alleged errors was "short on merit," id. at 444, and rejecting his claim of prosecutorial misconduct based on Doyle. Relying on state precedent, the court noted that testimony regarding post-arrest silence can be elicited "to refute contrary statements volunteered by the defendant to demonstrate his cooperation at the time of questioning," id. at 451 (quoting Commonwealth v. Bey, 294 Pa.Super. 229, 439 A.2d 1175, 1177 (1982)), and concluded that "[w]e believe this occurred here. The district attorney elicited testimony designed to rebut [Hassine's] claim that he cooperated with the police, not to suggest [Hassine's] guilt to the jury. Hence we find no error." Hassine I, 490 A.2d at 451.

On May 13, 1985, Hassine applied for a Petition for Allowance of Appeal in the Supreme Court of Pennsylvania, claiming again, inter alia, that the prosecution asked improper questions at trial about his post-arrest silence. On April 15, 1986, however, the state Supreme Court denied the Petition and Hassine's conviction became final.

Hassine chose not to seek a writ of certiorari from the Supreme Court of the United States, but instead filed a petition for a writ of habeas corpus with the district court on October 28, 1986. Among other things, Hassine argued once again that the prosecutor had exploited his post-arrest silence as an impeachment tactic in violation of due process and Doyle. The district court referred the petition to a Magistrate Judge for a Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(B), and on June 15, 1988, the Magistrate Judge recommended that relief be denied. After reviewing the record in detail, the Magistrate Judge found strong evidence "that the jury may have impermissibly been able to draw an inference between petitioner's silence and his guilt, thus clearly infringing upon petitioner's due process rights as established in Doyle." Nevertheless, he concluded that any constitutional error was harmless, because "[t]he evidence against Hassine was overwhelming."

Hassine filed several objections to the Report and Recommendation, and...