Slutzker v. Johnson
| Decision Date | 29 December 2004 |
| Docket Number | No. 03-4219.,No. 03-4046.,03-4046.,03-4219. |
| Citation | 393 F.3d 373 |
| Parties | Steven G. SLUTZKER Appellant in No. 03-4219 v. Philip JOHNSON;<SMALL><SUP>*</SUP></SMALL> Gerald J. Pappert; Stephen A. Zappala, Jr., District Attorney, Allegheny County, PA, Appellants in No. 03-4046. |
| Court | U.S. Court of Appeals — Third Circuit |
Douglas Sughrue (Argued), Allen & Sughrue, Pittsburgh, PA, for Steven G. Slutzker.
Ronald M. Wabby, Jr. (Argued), Office of District Attorney, Pittsburgh, PA, for Philip Johnson et al.
Before SLOVITER, BECKER, and STAPLETON, Circuit Judges.
This is an appeal by the Commonwealth of Pennsylvania from an order of the District Court granting habeas corpus relief to Steven G. Slutzker from a twelve-year-old conviction in a nearly thirty-year-old murder case. When John Mudd Sr. was murdered in his home in late 1975, suspicion soon focused on Slutzker, who had been having an affair with Mudd's wife, and who had attempted to hire a hit man to kill him. At the time, prosecutors could not assemble enough evidence to incriminate Slutzker, and no one was indicted for the crime. Fifteen years later, however, Mudd's son, John Mudd Jr., approached police and claimed to have recovered previously repressed memories of his father's murder-including an image of Slutzker fleeing the scene of the crime. Slutzker was arrested, prosecuted, and convicted of the murder, and was sentenced to life in prison.
Slutzker filed a habeas corpus petition alleging numerous constitutional errors at his trial. The District Court granted habeas relief on two of these grounds, a Brady violation and ineffective assistance of counsel. The court granted a certificate of appealability on these two grounds, and also on a third-the trial court's refusal to compel Mudd's wife, Arlene Mudd Stewart, to testify.1 Slutzker cross-appeals from the denial of relief on this issue.
For the reasons set forth below, we will hold that the District Court was correct in finding a Brady violation, and that, although this claim was procedurally defaulted, Slutzker has demonstrated cause and prejudice sufficient to excuse the default. We will therefore affirm on that claim. We will also affirm the District Court's denial of relief for the refusal to compel Arlene Mudd to testify. However, because we determine that the writ of habeas corpus should be granted due to the Brady violation, we will not reach the question whether Slutzker's trial attorney rendered ineffective assistance. Although the District Court did not specify the exact nature of the relief granted, we think it clear that the court meant to order Slutzker released unless the Commonwealth elects to retry him, and we will therefore modify the District Court's order to so provide.
The power went out at John Mudd Sr.'s house in Wilkinsburg, Pennsylvania, on December 28, 1975, at around 11 p.m. Mudd went to check the fuse, and was shot six times with a .32 caliber handgun by an intruder who was secreted in the basement. Mudd's wife Arlene, and their five-year-old son John Jr., were upstairs at the time of the murder.
Mudd's neighbor Steven Slutzker soon became the prime suspect in the murder. He had been having an affair with Arlene Mudd; she had briefly moved out of her house and lived with him in the summer of 1975. Significant evidence showed that Slutzker had been planning to kill Mudd. In early December, Slutzker had purchased a .32 caliber handgun and asked a co-worker to show him how to load it. On December 19, he had telephoned a friend, Michael Pezzano, and asked if Pezzano knew any hit men, because he wanted to kill Mudd to be with Arlene. A few days later, Slutzker offered to pay Pezzano $500 and provide him with the handgun he had purchased if Pezzano would kill Mudd. Pezzano said he would consider it, then reported this conversation to the state police. The police took no immediate action. Slutzker claims that Arlene had insisted that he kill Mudd because he had abused her; he also claims that he ended the conspiracy, and his relationship with Arlene, on December 26, 1975.
The police investigated the murder and quickly tracked down Slutzker, who was staying (along with his six-year-old daughter Amy) at the house of friends, Patrick and Janet O'Dea, in McKeesport. The O'Deas told the police that Slutzker had stayed at their house on the night of the murder, that he had been drinking heavily, and that he had passed out on their bed at around 8 p.m. The O'Deas claim next to have seen Slutzker at around 1 a.m., when they woke him to move him to the living-room couch so that they could go to sleep. While they were not completely consistent in all their statements, they generally represented that Slutzker could not possibly have awakened, sobered up, taken their car, and driven to Wilkinsburg and back to commit the murder within the time in which they left him alone. Slutzker's car had not been moved from the O'Deas' house on the night of the murder.
Despite this alibi, the police arrested Slutzker for criminal homicide and solicitation to commit murder. Arlene Mudd was charged with solicitation. Janet O'Dea was charged with conspiracy for allegedly disposing of the murder weapon, which was never found. However, all homicide charges were dismissed at the coroner's inquest, at which Arlene Mudd testified that Slutzker was not present when her husband was killed. Charges against Arlene Mudd were also dismissed. Janet O'Dea was offered a deal if she would testify against Slutzker; she refused, and was tried for conspiracy and acquitted.
Slutzker was convicted of solicitation on Pezzano's testimony. See Commonwealth v. Slutzker, 259 Pa.Super. 608, 393 A.2d 1281 (1978). He served about a year in prison. He was released, moved away, remarried, and lived quietly for nearly fifteen years. Then, in November 1990, John Mudd Jr., who was five years old at the time of the murder, told police that he remembered who killed his father. He said that he had repressed memories of seeing his father's body at the foot of the basement stairs, and of seeing Slutzker fleeing from his house. Fifteen years later, he claims, he recovered those vivid memories while fighting with an acquaintance. He talked to the police in November 1990, and gave a comprehensive statement to a psychologist some four months later. On the basis of these statements, the Commonwealth brought murder charges against Slutzker and Arlene Mudd. The charges against Arlene Mudd were later dropped.
The eyewitnesses who testified against Slutzker at trial included John Mudd Jr.; Cynthia DeMann, a neighbor who testified that she saw Slutzker talking with Arlene Mudd shortly after the killing; Timothy Brendlinger, a policeman who also testified that he saw Slutzker talking with Arlene after the killing; and Amy Slutzker, Slutzker's estranged daughter, who testified that she and her father were at home on the night of the murder, and that she saw him take a gun and leave the house minutes before the police arrived. Amy Slutzker was only six years old at the time of the murder. She did not claim recovery of repressed memory, only that she was afraid of her father and had previously declined to come forward with her story.
Slutzker's trial attorney, Charles Scarlata, never called the O'Deas to testify in support of Slutzker's alibi.2 He did attempt to call Arlene Mudd, but she claimed the Fifth Amendment privilege against self-incrimination, and the trial court refused to compel her to testify. In January 1992, the jury convicted Slutzker of murder. He was sentenced to life in prison.
Slutzker appealed his conviction, raising a number of issues, including the competency of the recovered-memory testimony and the fact that the trial court did not compel Arlene Mudd to testify. The Pennsylvania Superior Court affirmed the conviction in October 1993; the Pennsylvania Supreme Court denied a petition for allocatur in April 1994.
In January 1996, Slutzker filed a petition under the Pennsylvania Post Conviction Relief Act, 42 Pa. Cons.Stat. §§ 9541-9545 (PCRA). His PCRA petition raised sixteen issues relating to ineffective assistance of trial counsel. The PCRA court conducted evidentiary hearings, during which it took testimony from Scarlata. The court dismissed the petition, and the Superior Court affirmed; the Pennsylvania Supreme Court denied review in November 1999.
On December 1, 1999, Slutzker filed a pro se Petition for Writ of Habeas Corpus in the District Court for the Western District of Pennsylvania. The Petition was assigned to Magistrate Judge Kenneth J. Benson. In 2001, Slutzker, still representing himself, sent a subpoena to the Wilkinsburg police department (which had jurisdiction over the murder investigation) requesting any information relevant to his case. On September 11, 2001, the police sent him twenty-one police reports which apparently had not previously been disclosed to him or his lawyers. Upon receiving these materials, Slutzker wrote to Magistrate Judge Benson explaining the new evidence and the impact it might have had at trial. Slutzker never received a response to this letter.
On September 12, 2002, the case was reassigned to Magistrate Judge Susan Paradise Baxter. On January 10, 2003, Slutzker, now represented by counsel, filed an Amended Petition for Habeas Corpus asserting a number of claims. Magistrate Judge Baxter rejected most of these claims in her final Report and Recommendation. However, she recommended granting the petition, and a certificate of appealability, on two grounds: a claim founded on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), on account of the previously undisclosed police reports, and a claim of ineffective assistance of counsel, based on Scarlata's failure to interview the O'Deas or call them as alibi...
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