Whitney v. Horn

• Decision Date: 05 February 2002
• Docket Number: No. 00-9003.,00-9003.
• Citation: 280 F.3d 240
• Parties: Raymond WHITNEY, v. Martin HORN, Commissioner, Pennsylvania Department of Corrections; James S. Price, Superintendent of the State Correctional Institution at Greene; and Joseph Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

280 F.3d 240

Raymond WHITNEY, v. Martin HORN, Commissioner, Pennsylvania Department of Corrections; James S. Price, Superintendent of the State Correctional Institution at Greene; and Joseph Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview, Appellants.

No. 00-9003.

United States Court of Appeals, Third Circuit.

Argued April 24, 2001.

Opinion Filed February 5, 2002.

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Thomas W. Dolgenos (Argued), Marilyn F. Murray, Ronald Eisenberg, Arnold H. Gordon, Lynne Abraham, Philadelphia, PA, Counsel for the Appellants.

Billy H. Nolas (Argued), Christina Swarns, David Wycoff, Defender Association

of Philadelphia, The Curtis Center, Philadelphia, PA, Counsel for the Appellee.

Before: McKEE, BARRY and AMBRO, Circuit Judges.

OPINION OF THE COURT

McKEE, Circuit Judge.

A jury convicted Raymond Whitney of first degree murder in state court, and sentenced him to death. We are now asked to review the district court's grant of a writ of habeas corpus under 28 U.S.C. § 2254. The district court concluded that Whitney was entitled to habeas relief because the trial judge erred in instructing the jury on the defense of voluntary intoxication under Pennsylvania law. For the reasons that follow, we will reverse and remand for further proceedings consistent with this opinion.

I. Factual Background

At approximately 4:00 a.m. on October 10, 1981, Whitney climbed through a second story window of the apartment of Juliana Minor armed with a knife. Minor was in bed when Whitney encountered her inside the apartment. Whitney asked her if she recognized him, and threatened to kill her if she did not keep quiet. She told Whitney that she did not recognize him even though she actually did recognize him from the neighborhood. When Minor claimed she had no money, Whitney responded by taking some valuables from her jewelry box and helping himself to a can of beer from her refrigerator. Before leaving, he cut the phone wire, unscrewed the mouthpiece on the handset of her telephone, and removed the speaker from inside the phone, thus rendering the phone inoperable. Whitney then announced that he was in the wrong apartment and left by climbing through a window back onto the ledge.

Moments later, he entered a neighboring second-floor apartment where a recently married couple, Mahin Murtaza and Jehad Taha, were sleeping. Upon being awakened by noise in their living room, Taha went to investigate. A few minutes later Murtaza heard someone strike Taha, and she called the police. While she was attempting to place the call, Taha reappeared in the bedroom with wounds on his chest and face. Whitney was standing behind him holding a knife to Taha's neck. Murtaza immediately hung up the phone although she had not been able to complete the call and summon police. Whitney angrily asked Murtaza why she was on the phone, and threw Taha on the bed.

As this was occurring, the phone rang. Whitney directed Murtaza to answer it and say that everything was fine. After she complied, Whitney grabbed the phone and hung up. The call had been a "callback" by a police operator who phoned the apartment because of the abrupt manner in which Murtaza's call ended.

Whitney then threatened the couple, demanded money and jewelry, and ripped pierced earrings from Murtaza's ears. He also threatened to rape Murtaza, and proceeded to tear off her brassiere. Taha gave Whitney jewelry; however, Whitney demanded more and ordered the couple to go to the living room where Murtaza's purse was located. When Taha refused Whitney's demand and instead went toward the bathroom, Whitney stabbed him again. Whitney then forced Taha into the living room where Murtaza emptied the contents of her purse onto the floor. However, Whitney was still not satisfied and expressed disappointment over the amount of money Murtaza had in her purse. After drinking some water from the refrigerator, Whitney hugged Murtaza, touched her on the breast, reiterated that he wanted to have intercourse with her, and then threw her to the floor. When Taha protested, Whitney stabbed him yet again, and told Murtaza, "[a]fter I kill him, then I am going to fuck you." Whitney then unfastened his pants and pulled out his penis. Taha tried to stop Whitney, and a scuffle ensued during which Whitney repeatedly told Taha, "I'm going to kill you." However, the scuffle provided Murtaza with an opportunity to run for help, and she ran from the apartment into the street. Once outside, she encountered two police officers who ran back to her apartment with her. They entered in time to see Whitney crouched over Taha, pulling a knife out of Taha's chest. They immediately arrested Whitney.¹ However, Taha had already sustained twenty-four stab wounds, and he died soon after being taken to a hospital.

In a post-arrest statement, Whitney contended that earlier that evening he left a bar and ran into an acquaintance. He admitted that he had thereafter entered a second-floor apartment in the 3400 block of Powelton Avenue, and that he had struggled with and assaulted, a man. He told police that he "wasn't drunk then. [He] only had a little to drink," and did not recall any stabbing.

Defense counsel moved to suppress Whitney's statement, Minor's identification, and physical evidence that had been seized from Whitney following his arrest. The motion was denied, and Whitney was tried before a jury on charges that included first degree murder and burglary.

Ms. Minor and Ms. Murtaza testified for the Commonwealth at Whitney's trial. Minor testified that Whitney "walked funny," that he was "woozy," and that his speech was "funny" during the incident. Her testimony therefore provided some evidence that he had been intoxicated when he stabbed his victim. In addition, on cross-examination, the officer who transported Whitney to police headquarters testified that Whitney's breath smelled of alcohol.

The Commonwealth's case-in-chief included six witnesses who testified that they had not observed evidence of Whitney's intoxication from 4:00 a.m. on. Although Whitney did not testify, he called three defense witnesses who testified that he had been drinking at a party into the early morning hours of October 10th. Whitney also introduced evidence of three hospitalizations from alcohol overdoses between 1973 and 1976. In rebuttal, the Commonwealth produced additional evidence of Whitney's sobriety on the night of the murder.

The jury convicted Whitney of first degree murder, two counts of robbery, two counts of burglary, attempted rape, indecent assault, terroristic threats, and two counts of possession of an instrument of crime. Whitney called one witness during the ensuing penalty phase, and the jury thereafter imposed the death sentence. After post-verdict motions were denied, the trial judge formally imposed sentence.

II. Procedural Background

Whitney was represented by trial counsel on direct appeal to the Pennsylvania Supreme Court.² In that appeal he raised the following issues:

(1) the verdict was against the weight of the evidence which established Whitney's diminished capacity due to intoxication and negated his intent to commit first degree murder;³

(2) the trial court erred in denying a motion to suppress his statement because he lacked the requisite mental capacity to make an intelligent, informed, knowing and voluntary waiver of his Miranda rights;

(3) the prosecutor was guilty of misconduct in his penalty phase summation; and

(4) various defects in the Pennsylvania death penalty statute.

On July 15, 1986, the Pennsylvania Supreme Court affirmed Whitney's conviction and upheld his death sentence. See Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986).⁴ On September 25, 1990, Pennsylvania's governor signed a warrant for Whitney's execution.

On November 13, 1990, Whitney filed a pro se collateral petition under Pennsylvania's Post Conviction Relief Act, 42 Pa.C.S. § 9501 et seq. (the "PCRA"), and his execution was stayed until counsel could be appointed. Thereafter, Whitney filed four amended petitions in which he alleged ineffective assistance of counsel at trial and on direct appeal.⁵ An evidentiary hearing was held on Whitney's PCRA claims on February 1, 1993. Whitney testified at that hearing as did his aunt and cousin. They testified in support of Whitney's claim that trial counsel should have presented their testimony in mitigation at the penalty phase. Whitney's trial counsel did not, however, testify at the PCRA hearing. The PCRA court denied relief on January 3, 1995, and Whitney appealed to the Pennsylvania Supreme Court. He argued that trial counsel had been ineffective in failing to:

(1) advise Whitney of his right to testify, call him to testify at trial concerning, inter alia, his intoxicated state, or call him to testify at the penalty phase;

(2) comply with his purported intention to be tried by a trial judge and not a jury;

(3) call a physician to testify at the guilt phase to support a claim of diminished capacity;

(4) object when Sergeant Robert Wagner testified that Whitney maintained silence at the time of his arrest;

(5) present evidence of an absence of a significant history of criminal convictions at the penalty phase;

(6) present evidence of his age of twenty-two years at the time of the murder as a mitigating circumstance at the penalty phase;

(7) object to jury instructions and the verdict slip at the penalty phase because they violated Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); (8) object to the jury instructions at the penalty phase because the term "torture" was not defined; and

(9) call his aunt and cousin as witnesses to the penalty phase.

While his appeal was pending before the Pennsylvania Supreme Court, Whitney filed a second pro se PCRA petition. It was dismissed without prejudice on August 4, 1997, because Whitney's appeal of the dismissal of his first PCRA...