Karabin v. Petsock, 84-5444

Decision Date29 March 1985
Docket NumberNo. 84-5444,84-5444
PartiesNicholas KARABIN, Jr., Appellant v. George PETSOCK and Leroy Zimmerman, Attorney General of the State of Pennsylvania. . Submitted Under Third Circuit Rule 12(6)
CourtU.S. Court of Appeals — Third Circuit

Todd J. O'Malley, George V. Lynette, Scranton, Pa., for appellant.

Ernest D. Preate, Jr., Dist. Atty., Lackawanna County, Scranton, Pa., for appellees.

Before ALDISERT, Chief Judge, SLOVITER, Circuit Judge, and STAPLETON, District Judge *.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Nicholas Karabin, Jr. was convicted by a jury in the Court of Common Pleas of Dauphin County, Pennsylvania, of first-degree murder and reckless endangerment of the murder victim's wife stemming from a March 17, 1978 shooting. A sentence of life imprisonment was imposed for the murder and a consecutive sentence of one to two years was imposed for reckless endangerment.

New counsel was appointed for the direct appeal and fourteen assignments of error were advanced to the Supreme Court of Pennsylvania which affirmed the conviction. Thereafter, Karabin filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania, alleging that his two trial counsel were ineffective. The district court found that six of the seven grounds for relief were without merit but ordered an evidentiary hearing before a magistrate on the remaining ground: whether trial counsel were ineffective for failing to request stenographic recording of the opening and closing statements and side bar conferences. The district court adopted the magistrate's recommendation and denied the writ. We issued a certificate of probable cause to appeal and now affirm.

Karabin, a high school teacher and owner of a detective and security business, had marital difficulties during 1977-78, causing temporary separations from his wife and ultimately leading his wife to file for divorce in February 1978. During the separations, Karabin occasionally lived with Leith Howell, one of his students. She testified at trial as follows: On January 6, 1978 Karabin told her that he was having problems with his wife and that he wanted to kill her; that he planned to go out and kill a few people at random and then shoot his wife so that he would not be considered a suspect; that in mid-February, when his wife began divorce proceedings, Karabin again became upset and repeated his statement that he intended to kill his wife in such a way that it would appear to be a random slaying by a madman on the loose.

On March 17, 1978, Karabin told Howell that he was going to start the random slayings that night. After driving around on patrol in connection with his detective business, Karabin stopped his car about two blocks from the highway and told Howell that he parked there so that no one would see the car when he shot someone from the highway. Karabin wore a raincoat, hat, glasses and mustache as a disguise and had a shotgun in the back seat of the car. While Howell remained in the car, she heard two shotgun blasts. When Karabin returned to the car, he said that he had just shot someone and turned on the police scanner on which they heard a report of the shooting while they drove home.

On April 6, 1978, after another patrol related to the security business, Howell again waited in the car while Karabin shot someone a few blocks away. When Karabin returned to the car he said that he had shot a drunk near the post office, that he ran into someone he knew on the way back to the car, and that he had denied hearing a shot when asked by the person he had encountered. App. at 53a-75a. The person who was shot survived and both he and the person who had seen Karabin that night testified against him.

Karabin testified in his own defense and attributed Howell's testimony against him to her jealousy about another woman Karabin was seeing during the time he lived with her, claiming that her testimony was in retaliation for his refusal to marry her. He denied having any involvement in the shootings. The jury returned a verdict of guilty in the March 17 incident, the only charges in that indictment. On direct appeal, the Pennsylvania Supreme Court rejected, without discussion, Karabin's argument that trial counsel were ineffective for not requesting that openings, closings, and side bar conferences be recorded. Commonwealth v. Karabin, 493 Pa. 249, 253-54 n. 1, 426 A.2d 91, 93-94 n. 1 (1981).

At the time of Karabin's trial, Pennsylvania law required the court stenographer to record:

stenographic notes of the testimony in all judicial proceedings in any trial of fact, at law or in equity, together with the judge's charge, and of any and every ruling, order, or remark of the trial judge, or judges, relating to the case on trial, made in the presence of the jury, in any stage of the proceedings, to which ruling, order or remark either party may except in the same manner and with the same effect as is now practiced in relation to the judge's charge; and upon any trial without a jury, shall likewise report the proceedings, including the testimony of all witnesses examined and matters offered in evidence, and the rulings of the court upon the admission or rejection thereof, and the findings of the court....

Pa.Stat.Ann. tit. 17 Sec. 1804 (Purdon 1962) (repealed). The statute did not require transcribing of opening and closing statements nor of side bar conferences. In addition, as we found in Oliver v. Zimmerman, 720 F.2d 766, 768 (3d Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1302, 79 L.Ed.2d 701 (1984), "[t]he general trial practice in Pennsylvania is that only testimony of witnesses and statements of the court are transcribed as of course. Opening and closing speeches are not transcribed unless requested by counsel, but any objection lodged during the course of such speeches is transcribed together...

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24 cases
  • Mandeville v. Smeal, CIVIL ACTION NO. 3:CV-09-1125
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • September 25, 2012
    ...defendant's request for a complete transcript only when the defendant has shown a "colorable need" for the transcript. Karabin v. Petsock, 758 F.2d 966, 969 (3d Cir. 1985) (citing Mayer, 404 U.S. at 195, 92 S. Ct. 410). Specifically, "[a] criminal defendant must first show a 'colorable need......
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    • Idaho Supreme Court
    • April 11, 2018
  • State v. Hall, Docket Nos. 31528
    • United States
    • Idaho Supreme Court
    • April 11, 2018
    ...grounds. Id . at 282, 84 S.Ct. 424. Federal circuit courts have interpreted the Hardy holding narrowly. See, e.g., Karabin v. Petsock , 758 F.2d 966, 969 (3rd Cir. 1985) (quoting Griffin v. Illinois , 351 U.S. 12, 20, 76 S.Ct. 585, 100 L.Ed. 891 (1956) ) ("The Supreme Court has never held t......
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    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • August 26, 2003
    ...in substantial error."). To obtain relief, a defendant must demonstrate a "colorable need" for a complete transcript. Karabin v. Petsock, 758 F.2d 966, 969 (3d. Cir.), cert. denied, 474 U.S. 857 (1985). In Simmons v. Beyer, 44 F.3d 1160 (3d. Cir. 1995), there was a thirteen-year delay betwe......
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