Johnson v. Superintendent Fayette SCI

• Decision Date: 07 February 2020
• Docket Number: No. 18-2423,18-2423
• Citation: 949 F.3d 791
• Parties: Arthur JOHNSON, Appellant v. SUPERINTENDENT FAYETTE SCI
• Court: U.S. Court of Appeals — Third Circuit

949 F.3d 791

Arthur JOHNSON, Appellant

v.SUPERINTENDENT FAYETTE SCI

No. 18-2423

United States Court of Appeals, Third Circuit.

Argued September 17, 2019

Opinion Filed: February 7, 2020

Craig M. Cooley [ARGUED], COOLEY LAW OFFICE, 1308 Plumdale Court, Pittsburgh, PA 15239, Counsel for Appellant

Jennifer O. Andress [ARGUED], Assistant District Attorney, Max C. Kaufman, Supervisor, Federal Litigation, Nancy Winkelman, Supervisor, Law Division, Lawrence S. Krasner, District Attorney, 3 South Penn Square, Philadelphia, PA 19107, Counsel for Appellee

Before: KRAUSE, MATEY, and RENDELL, Circuit Judges

OPINION

RENDELL, Circuit Judge:

Although we generally rely on jurors to follow a court’s instructions, we cannot expect the superhuman from them. Under certain circumstances, jurors cannot practically be expected to follow instructions, no matter how clear or explicit. The classic example arises during a joint criminal trial, in which one defendant has confessed to the crime and the confession implicates his co-defendant. The confession is admitted into evidence, and the jury is instructed to ignore the confession as evidence against the co-defendant. This asks the impossible of our jurors. In Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court held that in these circumstances we cannot rely on a juror’s ability to put such an inculpatory statement out of their minds. Therefore, its admission violates the non-confessing co-defendant’s rights under the Confrontation Clause of the Sixth Amendment and requires a new trial if he has been prejudiced by such damaging evidence. More than fifty years after Bruton , despite intervening court opinions decrying this situation, courts still confront this problem.

Here, petitioner Arthur Johnson and his co-defendant, Tyrone Wright, were charged with the murder of Donnie Skipworth, who was shot multiple times while dealing drugs in North Philadelphia. Prior to trial, co-defendant Wright confessed to his involvement in the crime. Wright’s confession also implicated Johnson by identifying him as the shooter. The prosecution introduced Wright’s confession during trial, substituting Johnson’s name with "the other guy" in an attempt to avoid a Sixth Amendment Confrontation Clause violation. However, repeated missteps and mistakes made it increasingly clear to the jury that Johnson was indeed "the other guy." The trial court instructed the jury to ignore Wright’s confession when considering Johnson’s culpability, but a question from the jury indicated that they were having great difficulty doing so. Johnson was convicted of first-degree murder after six days of deliberation.

Johnson appealed his conviction to the Pennsylvania Superior Court, which ruled that there was no Bruton violation since the substitution of "the other guy," along with the trial court’s instruction, was adequate to protect Johnson’s Sixth Amendment rights under the Pennsylvania Supreme Court’s precedent in Commonwealth v. Travers , 564 Pa. 362, 768 A.2d 845 (2001). After the state court proceedings concluded, Johnson sought habeas relief in the District Court. The District Court concluded that a Bruton violation had occurred and that the Pennsylvania Superior Court’s ruling to the contrary was an unreasonable application of federal law. However, the District Court denied habeas relief because it concluded that the Bruton error was harmless. For the reasons that follow, we will reverse the District Court’s judgment and grant Johnson’s petition for habeas relief.¹

I. SIXTH AMENDMENT VIOLATION²

We will first discuss Bruton and the legal principles at play, and then apply those principles in the context of this case. The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant’s right to be "confronted with the witnesses against him." U.S. Const. amend. VI. This includes the ability to cross-examine witnesses. See Pointer v. Texas , 380 U.S. 400, 404, 406–07, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). When a non-testifying co-defendant’s statement is introduced, it is in effect the testimony of a witness who cannot be cross-examined. Three Supreme Court cases— Bruton ; Richardson v. Marsh , 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) ; and Gray v. Maryland , 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998) —establish the relevant controlling precedent. We discuss each in turn.

In Bruton , the Supreme Court held that a defendant’s right to confrontation is violated when a non-testifying codefendant’s confession is introduced in a joint trial, and that confession implicates the other defendant. The Court held that even when the trial court clearly instructs the jury not to consider the statement against the non-confessing defendant, it "cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination." 391 U.S. at 137, 88 S.Ct. 1620. When such "powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial," practically speaking, it is as though "there had been no instruction at all." Id. at 135–36, 137, 88 S.Ct. 1620. In this context, "the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." Id. at 135, 88 S.Ct. 1620.

The Supreme Court clarified Bruton ’s reach in Richardson , holding that no constitutional violation exists where a confession is redacted to eliminate "not only the defendant’s name, but any reference to his or her existence." 481 U.S. at 211, 107 S.Ct. 1702. In those cases, a limiting instruction "may well be successful" since there is not the "overwhelming probability" that the jury will be unable to disregard the inculpatory confession against the defendant. Id. at 208, 107 S.Ct. 1702. The Richardson Court expressed "no opinion" on whether a confession is admissible when a defendant’s name is replaced with a "symbol or neutral pronoun." Id. at 211 n.5, 107 S.Ct. 1702. The Supreme Court refined the acceptable parameters of a redacted confession in Gray , holding that redactions cannot be so ineffectual that they actually could signal to the jury that the co-defendant’s name was deleted. Such obvious redactions are "similar enough to Bruton ’s unredacted confessions as to warrant the same legal results." 523 U.S. at 195, 118 S.Ct. 1151.

While using a neutral pronoun may satisfy Bruton in some circumstances, we have clearly stated that courts should not apply a bright-line rule that such use will never violate Bruton . Bruton and its progeny require courts to take a holistic approach when considering redacted confessions, by viewing the redaction in the context of the entire record. See Washington v. Sec’y Pa. Dep’t of Corr. , 801 F.3d 160, 167 (3d Cir. 2015) ("It is not enough to say that because there were redactions of [the defendants’] names that the rules from Bruton and Gray do not apply."); United States v. Hardwick , 544 F.3d 565, 573 (3d Cir. 2008) ("[T]he nature of the linkage between the redacted statement and the other evidence in the record is vitally important in determining whether a defendant’s Confrontation Clause right has been violated.").

Here, Johnson and Wright were on trial together. The prosecution alleged that Wright drove the getaway car and Johnson and Abbas Parker approached Donnie Skipworth and opened fire. Abbas Parker ("Baz") was not on trial.³ The trial court permitted Detective James Burns, who took Wright’s confession, to read it to the jury over defense counsel’s objections, substituting Johnson’s name with "the other guy" or another neutral pronoun, as italicized below:

Wright: I was driving down Master Street and I seen some guy . He was walking down Master right by Newkirk. He flagged us down and I pulled over. Then he opened up my side door and was standing there talking to us. He said that he seen Donnie up on Thompson Street and he was going to go up and talk to him. Baz was like, I’m a walk up with you. Baz got out of the van and spoke with him and then he says to me, yoh, meet us around on 28th and Thompson Street. Then he and Baz walked up Newkirk Street and I pulled off. I drove up Dover Street to Jefferson and then down 28th Street and pulled over at Thompson, across the street from the firehouse. I shut the engine off and waited. I was probably there for a minute or two when I heard the gunshots coming from around the corner .... I seen Baz come running around the corner. He jumps in the van and starts yelling, we out, we out, we out, pull off. I pulled off and drove down 28th Street.

...

Burns: Did Baz tell you that he shot Donnie?

Wright: No. He had a gun, but all he said was that the other guy shot Donnie. ...

Burns: Did you know if the other guy had a gun that night?

Wright: Yeah. I seen him with it right before the shooting down on Master Street. When I pulled up to him on Master, he was standing at my sliding door and had his hands up on the roof of the van talking. He had the gun stuck in his pants and I could see it. It was a black semi auto with lines on the back of the grip, like grooves cut in the back of the grip. He always has that gun. ...

Burns: Do you know why the other guy wanted to talk to Donnie?

Wright: No, but I found out the next day. ... The whole neighborhood was talking about it. Everyone was saying that the other guy shot the boy over Donnie killing some boy named Nel two years ago on Newkirk Street. Nel was supposed to be his boy.

A. 454–55.

This situation is eerily reminiscent of the fact pattern in Vazquez v. Wilson , 550 F.3d 270 (3d Cir. 2008). There, the confessing co-defendant informed police that there were only two possible shooters: the non-confessing co-defendant and a third person not on trial. During trial, the two co-conspirators’ names were...