Tucker v. Sci
| Decision Date | 03 February 2017 |
| Docket Number | No. 15-2170,15-2170 |
| Parties | TERRANCE TUCKER v. SUPERINTENDENT GRATERFORD SCI, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Appeal from the United States District Court for the Eastern District of Pennsylvania
Before: CHAGARES, KRAUSE, and SCIRICA, Circuit Judges
Susan E. Affronti
Ryan Dunlavey [ARGUED]
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
Counsel for Appellant
Thomas C. Gaeta [ARGUED]
Federal Community Defender Office for the Eastern District of Pennsylvania
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellee
Petitioner Terrance Tucker contends in this habeas corpus petition that he was denied effective assistance of counsel because his counsel on direct appeal did not raise the potential claim that Tucker's Sixth Amendment right to a public trial was infringed during his state-court trial. The United States District Court for the Eastern District of Pennsylvania granted Tucker's habeas petition, finding the Superior Court of Pennsylvania had unreasonably applied Supreme Court precedent, and ordered the Commonwealth of Pennsylvania to release Tucker or grant him a new trial. The Commonwealth appealed. We will reverse and remand for proceedings consistent with this opinion.
The charges against Tucker stem from the February 20, 2002 homicide of Mikal Scott. Scott provided statements to police against two members of a rival gang during a prior murder investigation in 2000, but recanted his statement prior to trial. According tothe Commonwealth's theory of the case and evidence adduced at trial, in retaliation for Scott recanting his statement, Tucker and a co-conspirator shot and killed Scott.
The Commonwealth charged Tucker with murder and several other offenses. His trial in the Court of Common Pleas of Philadelphia County began on November 12, 2003. J.A. 87. After holding an off-the-record discussion with counsel in chambers, the trial judge closed the courtroom to the public. The judge said, Id. at 182. The judge gave two reasons for closing the courtroom—courtroom disruptions and witness tampering and intimidation.
As to the first reason, the judge explained:
During the beginning instructions I noticed many, many citizens coming into the courtroom whose behavior was not cooperative. They were attempting to talk to Mr. Tucker. Mr. Tucker was attempting to communicate with them at points in time when [defense counsel] was focused on the jury, and to such a degree that I had to have a message sent to [defense counsel] to have Mr. Tucker stop.
Id. Earlier that day, the judge had twice admonished Tucker's father and other people in the gallery for disrupting the trial by speaking to Tucker. Id. at 166, 171. Despite these admonishments to the gallery, the judge also had to instruct Tucker to "face forward" so spectators could not communicate with him. Id. at 182. The judge was concerned not only with the uncooperative behavior of Tucker, his father, and other spectators, but alsowith the "exceedingly complex" relationships among the witnesses scheduled to testify on behalf of the Commonwealth and Tucker,1 and how that complexity might affect the orderly administration of trial. Id. at 183. Closing the courtroom would prevent disruption and keep witness testimony as "pristine as possible . . . so that the jury has a clean record with which to work." Id. As the Superior Court of Pennsylvania later added, "[closure was] particularly [appropriate] since this case had its genesis in a gang-related dispute." Id. at 58.
As to the second reason for closing the courtroom—witness tampering and intimidation—the trial judge explained that "[the court had] previously documented in this record that there may have been attempts at witness tampering." Id. at 182. Specifically, an eyewitness to the murder, Tonaysha Austin,2 failed to appear on the first scheduled day of trial because, as the Commonwealth's attorney explained during the pretrial colloquy, one of Austin's relatives who had recently been in jail with Tucker, and "who she would not identify . . . because she was scared," had given her a message from Tucker.3 Id. at 168. Tucker allegedly told Austin's relative to tell her that "if [Austin] comes to court that she shouldn't say he was the one that did it because he wasn't the onewho did it." Id. The Commonwealth acknowledged this threat was "oblique," id., but because Austin was "afraid about coming to testify" and "concerned about herself, her family, and . . . this relative," the Commonwealth placed her in a hotel "out of Philadelphia" for "her to feel like she [was] going to be safe," id. at 169. In her testimony at Tucker's trial, Austin expressed she was still "scared" "to be in the room with [Tucker]." Id. at 197.4
Tucker's attorney objected to the closure. Id. at 183. The trial judge overruled the objection, but stated the issue was preserved for review. Id. The jury heard testimony from fourteen witnesses over the course of three days. Aside from Austin, who testified on the first and second days of trial, the other testifying witnesses were Anne Williams (another eyewitness), id. at 259, a medical examiner, id. at 291, two detectives, id. at 236, 239-240, four police officers, id. at 246, 253, 309-10, 316-17, and Tucker's prior counsel, id. at 304. Scott's sister also testified, id. at 296, as did three witnesses for Tucker during the second half of the third day of witness testimony, id. at 322, 327, 330-31.
Although the record is unclear, it appears the courtroom was not entirely closed during the entirety of witness testimony. On the first day of witness testimony, during the first half of Austin's direct examination, there was a detective in the courtroom who was on another case as well as an intern for the Commonwealth. Id. at 185. The intern, who we do not consider a member of the public, was allowed to stay, but the detective was asked to leave for the remainder of Austin's direct examination and the first half of her cross examination. Id. at 198. At the start of the second day, which continued with Austin's cross examination, the trial judge noted that her friend, a professor from Drexel University, and her students were in attendance, taking notes. Id. at 227. It is unclear from the record how long they stayed. It is also unclear whether any members of the public were present during the third day of witness testimony.
Once witness testimony had concluded, the trial judge reopened the rest of the proceedings to the public.5 Id. at 333. On November 19, 2003, the jury found Tucker guilty of third-degree murder, possessing an instrument of crime, reckless endangerment, and criminal conspiracy. Id. at 378. He was sentenced to an aggregate prison term of thirty to sixty years. Id. at 519.
Tucker appealed his conviction and sentence to the Superior Court of Pennsylvania. Tucker, represented on appeal by his trial counsel, raised six challenges,6 but did not challenge the courtroom closure. Id. at 806-07. Tucker's conviction and sentence were affirmed, id. at 73-84, and the Supreme Court of Pennsylvania denied review, Commonwealth v. Tucker, 911 A.2d 935 (Pa. 2006) (table).
Tucker filed a petition for collateral relief under the Pennsylvania Post-Conviction Relief Act (PCRA) in the Court of Common Pleas of Philadelphia County. J.A. 768. Among various ineffectiveness claims, Tucker claimed his appellate counsel was ineffective for failing to challenge the courtroom closure. Id. at 772. The closure, he contended, violated his Sixth Amendment right to a public trial because it failed to pass the standard set by the Supreme Court of the United States in Waller v. Georgia, 467 U.S. 39, 45 (1984). Id. at 772-75. The PCRA court denied Tucker's petition, explaining the trial court's reasoning for not closing the courtroom as follows:
This case grew out of a dispute between two rival gangs. It was preceded by at least two other murders. The relationship between these groups wascomplex and not completely clear. It involved documented violent incidents of witness intimidation and retaliation. During opening statements a large group of young men entered the courtroom and attempted quite obviously to have inappropriate contact with [Tucker], who also attempted to communicate with the people in the courtroom. As a result, both counsel were advised of the necessity to close the courtroom in order to preserve the sanctity of the proceedings.
Id. at 68 ().7
On appeal, the Superior Court of Pennsylvania affirmed the PCRA order, citing the above language. Id. at 58. Instead of applying the Waller test, however, it analyzed the legality of the closure under a state-law standard, and found the closure permissible. Id. at 57-59. Accordingly, the Superior Court of Pennsylvania held Tucker's appellate counsel was not ineffective. Id. The Supreme Court of Pennsylvania again denied review. Commonwealth v. Tucker, 8 A.3d 345 (Pa. 2010) (table).
Tucker reasserted his ineffective assistance claim in a timely habeas petition. See 28 U.S.C. § 2254; J.A. 569, 646. A Magistrate Judge recommended Tucker's "petition be denied as meritless." J.A. 26. He found the decision to close the courtroom justified under Waller, because "[a]s the trial court found, many spectators attempted to communicate with Tucker during opening statements," and "[t]here had been documented concerns ofwitness intimidation earlier in the case, and the relationships between Tucker, the decedent, and various witnesses were complex." Id. at 36.
The District Court disagreed with the...
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