2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-19-2004

Priester v. Vaughn

Precedential or Non-Precedential: Precedential

Docket No. 03-2956

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PRECEDENTIAL

UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

 

No. 03-2956

 

BARRY PRIESTER,

 Appellant

v.

DONALD T. VAUGHN;

THE DISTRICT ATTORNEY OF

THE COUNTY OF PHILADELPHIA;

THE ATTORNEY GENERAL OF THE

STATE OF PENNSYLVANIA

 

On Appeal from the United States

District Court for the Eastern District of

Pennsylvania

(D.C. Civil No. 02-cv-00075)

District Judge: Hon. Stewart Dalzell

 

Argued May 4, 2004

Before: SLOVITER, FUENTES and

BECKER, Circuit Judges

(Filed: August 19, 2004)

 

Johanna E. Markind (Argued)

Philadelphia, PA 19102

Attorney for Appellant

Thomas W. Dolgenos (Argued)

Chief, Federal Litigation

Ronald Eisenberg

Deputy District Attorney

Law Division

Arnold H. Gordon

First Assistant District Attorney

Lynne Abraham

District Attorney

Philadelphia, PA 19102-1582

Attorneys for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This appeal arises from appellant

Barry Priester’s 1991 state conviction of

first degree murder, two counts of

aggravated assault, criminal conspiracy,

and possession of an instrument of crime.

Priester appeals the decision of the United

States District Court for the Eastern

District of Pennsylvania denying his

petition for a writ of habeas corpus. The

District Court had subject matter

jurisdiction over Priester’s habeas corpus

petition pursuant to 28 U.S.C. § 2254 and

we have jurisdiction pursuant to 28 U.S.C.

§§ 1291, 2253.

I.

FACTS AND PROCEDURAL

HISTORY

On May 19, 1990, Priester and

Nathaniel Butler met Tracey Postell at the

corner of 8th and Louden Streets in

Philadelphia. Priester told Postell that he

was meeting a group of people to confront

the individuals who had “rolled” Darius

Barnes – a mutual friend. Postell agreed to
2

accompany Priester and Butler to locate

these individuals. Priester drove one car

while Barnes drove another. Two or three

other cars containing additional gang

members joined the caravan. According to

Postell’s trial testimony, at one point along

the way Priester pulled alongside Barnes’

car and said, “[w]hen we get up there, no

questions asked, start busting.” Trial Tr. at

190 (Sept. 13, 1991).

The cars arrived at the Belfield

Recreational Center in North Philadelphia

and Barnes began searching the

playground for their targets. Once Barnes

identified the individuals who “rolled”

him, Priester removed a gun from his

jacket and handed it to Butler. Butler fired

several shots into the crowd. Shots were

also fired from the other vehicles. Soon

after the shooting, Priester and the others

drove away from the scene. As a result of

the shooting, Terrence Lucan died, and

Ronald Holliman and Walter Jefferson

sustained significant injures.

On June 7, 1990, Philadelphia

Homicide Detective Frank McGouirk

questioned Postell about the shooting. At

that time, Postell, who subsequently pled

guilty in a negotiated plea, detailed the

factual scenario surrounding the shooting

as well as Priester’s and Butler’s

involvement. Butler was then arrested and

questioned. He stated that Priester was in

the car with him and Postell, and that

Butler shot twice into the crowd with a .38

caliber pistol.

After further investigation, Priester

and Barnes were indicted on first degree

murder, two counts of aggravated assault,

criminal conspiracy and possession of an

instrument of crime. They were tried

together in the Philadelphia Court of

Common Pleas before a jury. During

testimony at trial, Postell attempted to

recant the story he told the police and

stated that he had lied to the police and

was asleep in the car when the incident

occurred. Having been forewarned by

defense counsel about this change, the

prosecution sought the trial court’s

approval to admit Butler’s previous

statement, which the trial court granted

subject to redaction. Thereafter, a

redacted version of the prior statement

made by Butler, describing the incident,

was introduced at trial. This redacted

statement replaced Priester’s name, and all

other names, with phrases such as “the

other guy.” App. at 91-97. At the

conclusion of the trial, the jury convicted

Priester as well as Butler on all counts. At

the sentencing phase, the jury returned a

sentence of life imprisonment for each

defendant on the murder convictions and

the court imposed sentences on the

remaining counts, to run concurrently for

both defendants.

After the trial court denied postverdict motions, Priester appealed to the

Pennsylvania Superior Court, contending

that the Commonwealth breached its

agreement not to introduce Butler’s prior

statement and challenging the sufficiency

of the redaction, the admission of Postell’s

earlier statement as substantive evidence,

and the sufficiency of the evidence to

convict him of first degree murder. The
3

court rejected these claims. The

Pennsylvania Supreme Court denied

allocatur. Commonwealth v. Priester, 634

A.2d 220 (Pa. 1993). Priester then filed a

petition for collateral review under the

Pennsylvania Post-Conviction Relief Act,

42 Pa. Cons. Stat. § 9541 et seq. (2003)

(“PCRA”), which was denied by both the

trial court and the Superior Court.

Priester next petitioned for allocatur

in the Pennsylvania Supreme Court of

three issues. He argued that Butler’s

statement was insufficiently redacted in

violation of Bruton v. United States, 391

U.S. 123 (1968); that the trial court erred

because it admitted Postell’s prior

inconsistent statements as substantive

evidence; and that the jury instructions

regarding accomplice liability were

deficient. The Pennsylvania Supreme

Court denied allocatur.

Thereafter, Priester filed a pro se

petition for a writ of habeas corpus in the

District Court, which was amended after

the appointment of new counsel. The

matter was referred to a Magistrate Judge,

who issued an opinion recommending that

Priester’s claims be denied. The District

Court approved and adopted the

Magistrate Judge’s recommendation, but

certified for appeal two of the many claims

raised by Priester: the claim that the

admission of Butler’s redacted statement

violated the Confrontation Clause of the

Sixth Amendment, and the claim that trial

counsel was ineffective because of his

failure to object to the jury instruction on

accomplice liability.1 We now consider

these issues on appeal.

II.

DISCUSSION

A. Standard of Review

At the outset, we set forth our

standard of review. Under the AntiTerrorism and Effective Death Penalty Act

(“AEDPA”):

An application for a writ of

habeas corpus on behalf of a

person in custody pursuant

to the judgment of a State

court shall not be granted

with respect to any claim

that was adjudicated on the

merits in State court

proceedings unless the

adjudication of the claim –

 

1 Counsel for Priester attempts to

add an ineffectiveness of counsel claim

based on a failure to object to the

admission of the redacted statement. See

Appellant’s Br. at 20-24. However, the

District Court certified only the two

issues set forth above for appeal, App. at

7, and we denied Priester’s request to

certify other issues on September 23,

2003. Therefore, we decline to discuss

this issue herein. In any event, in his

reply brief Priester states that the issue is

properly presented as a Confrontation

Clause claim. Appellant’s Reply Br. at 2

n.1. We decline to discuss the due

process claims related to the arguments

made on appeal for the same reason.
4

(1) resulted in a decision

that was contrary to, or

involved an unreasonable

application of, clearly

established Federal law, as

determined by the Supreme

Court of the United States .

. . .

28 U.S.C. § 2254(d) (emphasis added).

Priester argues that because the

Pennsylvania Superior Court cited only

Pennsylvania law with no reference to

federal law, we need not apply AEDPA’s

deferential standard of review. In granting

a certificate of appealability, the District

Court stated it believed that the deferential

standard was applicable, but cited in a

footnote this court’s opinion in Everett v.

Beard, 290 F.3d 500 (3d Cir. 2002), which

held otherwise. We need not dwell on this

issue2 because subsequent opinions of the

Supreme Court of the United States have

made clear that as long as the reasoning of

the state court does not contradict relevant

Supreme Court precedent, AEDPA’s

general rule of deference applies. Early v.

Packer, 537 U.S. 3 (2002); Woodford v.

Visciotti, 537 U.S. 19 (2002). In Early,

the Supreme Court held that qualification

for AEDPA deference “does not require

citation of our cases – indeed, it does not

even require awareness of our cases, so

long as neither the reasoning nor the result

of the state court decision contradicts

them.” Early, 537 U.S. at 8 (emphasis in

original). Similarly, in Woodford, the

Supreme Court held that the California

Supreme Court’s “shorthand reference” to

the ineffective assistance of counsel

standard, while imprecise, did not render

the decision unworthy of deference.

Woodford, 537 U.S. at 24; see also Bell v.

Cone, 535 U.S. 685, 698 (2002) (applying

the deferential AEDPA standard of review

where the state court had relied only on its

 

2 We note that in Everett, the

accomplice liability instruction was

patently erroneous as a matter of law, as

the trial court peppered its instructions

with legal admonitions such as, “[a]

killing is willful and deliberate if the

defendant and/or his accomplice . . .

consciously decided to kill the victim . . .

.” Everett, 290 F.3d at 504 (emphasis in

original). Instead of objecting, trial

counsel actually “complimented the

judge on the fairness of these instructions

after the jury left the courtroom.” Id. at

505. The Commonwealth argued that

accomplice liability for first-degree

murder was not clearly established at the

time of Everett’s trial, but we held that

Everett’s trial counsel was ineffective for

failing to object to an instruction that

allowed a juror to ascribe an

accomplice’s intent to the defendant and

that a Pennsylvania Superior Court

decision filed well before Everett’s trial

should have given counsel a basis to

object. The Everett opinion noted that

the Pennsylvania Supreme Court

thereafter specifically held that for an

accomplice to be found guilty, s/he must

have intended that the victim be killed. 

Id. at 512-14.
5

own precedent to reject the petitioner’s

ineff ective assistance of counsel

allegation); Rompilla v. Horn, 355 F.3d

233 (3d Cir. 2004) (applying AEDPA

deference to Pennsylvania court’s

determination of petitioner’s allegation of

ineffective assistance of counsel despite

the court’s failure to expressly cite to the

Strickland standard).

Accordingly, we hold that the

deferential standard of AEDPA applies

even if the state court does not cite to any

federal law as long as the state court

decision is consistent with federal law.

B. Bruton Issue

In order to protect a defendant’s

Sixth Amendment rights to confrontation

and cross-examination, trial courts that

admitted statements of non-testifying codefendants would routinely instruct jurors

that the statements were not to be

considered evidence against the defendant

at trial. In Bruton, the Supreme Court

recognized the inadequacy of such

instructions, stating that “there are some

contexts in which the risk that the jury will

not, or cannot, follow instructions is so

great . . . that the practical and human

limitations of the jury system cannot be

ignored.” Bruton, 391 U.S. at 135.

The Court held that “because of the

substantial risk that the jury, despite

instructions to the contrary, looked to the

incriminating extrajudicial statements in

determining petitioner’s guilt, admission

of [the co-defendant’s] confession in this

joint trial violated petitioner’s right of

cross-examination secured by the

Confrontation Clause of the Sixth

Amendment.” Id. at 126. The Court noted

that some courts had redacted the

statement to avoid the Sixth Amendment

issues. See id. at 134 n.10 (“Some courts

have required deletion of references to

code fendants whe re practicable.”).

Thereafter, the courts generally followed

the practice of redacting co-defendants’

statements in order to eliminate all explicit

references to other defendants on trial

before those statements were admitted into

evidence.

Priester argues that the admission of

Butler’s redacted statement violated his

Sixth Amendment right to confrontation.

The issue arose in the instant case because

Postell gave testimony at trial that differed

from the statements that he gave to police.

The state moved to admit Butler’s

statement as evidence of Butler’s

involvement in the shooting.The statement

was redacted to replace all references to

Priester and other participants in the

shootings with words such as “the other

guy,” “someone,” “someone else,” “the

guy,” and “another guy.” App. at 91-97.

In relevant part, the redacted statement

read at trial was:

A: Well like 15 guys came

and we were all sitting on

the corner of 8th and

Louden Sts. It was like 4

something in the afternoon.

Several guys came up to the

corner some were walking

and others were in cars.

They started fighting and

shooting at anybody who
6

was out there. . . .

Somebody gave one of the

guys a .38 caliber gun . . . .

Then another guy shot

twice. After the first guy

shot they pulled off and

after the other two shots I

pulled off.

. . . .

Q: In what car was the guy

who shot first?

A: He was the passenger in

the front seat of the brown

Toyota. That was the first

car.

Q: How many were in the

car with him?

A: Two other guys.

Q: How many were in the

second car?

A: I was the driver and two

others.

Q: How many shots did you

see fired from the second

car?

A: Two.

. . . . 

Q: Who did the guy in your

car shoot at?

A: He just put out the

window and shot twice. He

wasn’t looking.

App. at 91-93. The trial court instructed

jurors:

A statement made by a

defendant before trial may

be considered as evidence

but only against the

defendant who made the

statement. You may not

consider one defendant’s

statement as evidence

against the other defendant[

] . . . .

Trial Tr. at 416 (Sept. 17, 1991).

Priester argues that the admission of

this redacted statement violated the Sixth

Amendment because replacing Priester’s

name with varying phrases and pronouns

did not adequately shield his identity, as

other trial testimony made clear who was

in the second car. During Postell’s

testimony, he identified the occupants of

his car as being “Barry [Priester] and Nate

[Butler].” App. at 108 (quoting Trial Tr. at

182 (Sept. 13, 1991)). Furthermore, in his

opening statement, the prosecutor claimed,

in the first of those cars was

an individual by the name of

Darius Barnes. In another

c a r , the defendants,

Nathaniel Butler and Barry

Priester, were riding along

with an individual named

Tracey Postell.

App. at 106 (quoting Trial Tr. at 20 (Sept.

12, 1991)).

From Postell’s testimony and the

prosecutor’s opening statement, which is

not evidence, the jury could have inferred
7

that the “other guy” in Butler’s statement

was Priester. But this inference is not a

foregone conclusion. There were at least

fifteen perpetrators in various cars

involved in the shooting. The redacted

statement by Butler is unclear as to the

people in the first car, in the second car,

who was shooting when and from which

car. This is because the trial court

removed not just references to Priester, but

removed references to every name in the

statement, making the statement difficult

to follow.

Subsequent to Bruton, the Supreme

Court held that the introduction of the

redacted statement of a nontestifying codefendant was not unconstitutional. It

rejected the contextual implication

argument Priester makes here. It stated

that where ascertaining the identity of a

co-defendant in a redacted statement

requires an inference drawn from linking

other evidence to the statement, the risk

that the jury cannot follow limiting

instructions is not sufficiently substantial

to violate the Sixth Amendment.

Richardson v. Marsh, 481 U.S. 200, 208

(1987) (“Where the necessity of such

linkage is involved, it is a less valid

generalization that the jury will not likely

obey the instruction to disregard the

evidence.”). “In short, while it may not

always be simple for the members of a jury

to obey the instruction that they disregard

an incriminating inference, there does not

exist the overwhelming probability of their

inability to do so . . . .” Id.

Priester argues that the Supreme

Court’s decision in Gray v. Maryland, 523

U.S. 185 (1998), and this court’s decision

in United States v. Richards, 241 F.3d 335

(3d Cir. 2001), clarify the rule set forth in

Richardson in a manner that supports his

argument. We find this unpersuasive. In

the first place, both decisions were

announced after Priester’s merits appeal

was heard in the Pennsylvania Superior

Court and it did not act unreasonably in

failing to predict the Supreme Court’s

decision in Gray. Moreover, the decision

in Gray, even if applicable, does not

support Priester’s contention. The Court

explained in Gray that it “granted certiorari

in order to consider Bruton’s application to

a redaction that replaces a name with an

obvious blank space or symbol or word

such as ‘deleted.’” Gray, 523 U.S. at 188.

It then held that such redactions were

constitutionally impermissible. In

Richardson, the issue was “whether Bruton

requires the same result when the

codefendant’s confession is redacted to

omit any reference to the defendant, but

the defendant is nonetheless linked to the

confession by evidence properly admitted

against him at trial.” Richardson, 481 U.S.

at 202. The Court held that the admission

of the redacted confession was not

unconstitutional.

The Court in Gray explained that

the key difference between Gray and

Richardson was the extent to which the

statement’s alterations directly connected

the statement to the defendant, as

“nicknames and specific descriptions fall

inside, not outside, Bruton’s protection.”

Gray, 523 U.S. at 195. The reasons given

in Gray for holding such redactions
8

impermissible – such as “an obvious blank

will not likely fool anyone,” “the obvious

deletion may well call the jurors’ attention

specially to the removed name,” and that

“a blank or some other similarly obvious

alteration” are “directly accusatory,” Gray,

523 U.S. at 193-94 – do not apply to the

instant case. There are no such

“nicknames,” descriptions or phrases that

directly implicate Priester in the instant

case.

Finally, in this court’s Richards

opinion, on which Priester relies, there

were only three people involved in the

case, one of whom was the confessor and

one of whom was the co-defendant

Richards, and the word “friend” was

substituted for Richards’ name. Richards,

241 F.3d at 341. As the prosecutor called

the co-defendant’s mother to testify that

the confessor and co-defendant Richards

were “friends,” the word “friend”

unequivocally pointed to Richards. In

contrast, in this case there were at least

fifteen perpetrators involved in the

shooting, and the phrases “the other guy”

or “another guy” are bereft of any

innuendo that ties them unavoidably to

Priester. In Richards, the replacement was

tantamount to an explicit reference to the

co-defendant; the same cannot be said for

the redaction in the instant case.

Because the trial court redacted the

statement carefully, and because it gave

appropriate limiting instructions before the

admission of the statement and during jury

instructions, the District Court did not err

in holding that the admission of Butler’s

redacted statement did not run afoul of the

Sixth Amendment.

C. Jury Instruction Issue

Priester argues that the District

Court erred in concluding that his trial

attorney’s failure to object to the jury

instructions did not constitute ineffective

assistance of counsel. The parameters of

the Sixth Amendment right of a criminal

defendant to receive effective assistance of

counsel were set forth in Strickland v.

Washington, 466 U.S. 668, 686 (1984). A

defendant claiming a violation of this right

must make a two-part showing:

First, the defendant must

show that c oun sel’s

performance was deficient.

This requires showing that

counsel made errors so

serious that counsel was not

functioning as the “counsel”

guaranteed the defendant by

the Sixth Amendment.

Second, the defendant must

show that the deficient

performance prejudiced the

defense. This requires a

showing that counsel’s

errors were so serious as to

deprive the defendant of a

fair trial, a trial whose result

is reliable.

Id. at 687.

“Judicial scrutiny of counsel’s

performance must be highly deferential” to

ensure “the wide latitude counsel must

have in making tactical decisions.” Id. at

689. “[A] court must indulge a strong
9

presumption that counsel’s conduct falls

within the wide range of reasonable

professional assistance . . . .” Id.

The portion of the trial judge’s jury

instruction which Priester claims was

misleading was:

[M]urder of the first degree

is a criminal homicide

committed with a specific

intent to kill. An intentional

killing is a killing by means

of poison or by lying in wait

or by any other kind of

willful, deliberate and

premeditated act.

Therefore, in order to find

the defendants guilty of

murder in the first degree,

you must find that the

killing was a willful,

deliberate and premeditated

act.

. . . .

Members of the jury, you

may find a defendant guilty

of a crime without finding

that he personally engaged

in the conduct required for

commission of that crime or

even that he was personally

present when the crime was

committed.

A defendant is guilty of a

crime if he is an accomplice

of another person who

commits that crime.

A defendant does not

become an accomplice

merely by being present at

the scene or merely by

knowing of the crime. He is

an accomplice if, with the

intent of promotion or

facilitating commission of

the crime, he solicits or

commands or encourages or

requests another person to

commit it or if he aids or

agrees to aid or attempts to

aid the other person in

planning or committing it.

You may fin d th e

defendants guilty of a crime

on the theory that they were

an accomplice as long as

you are satisfied beyond a

reasonable doubt that the

crime was committed and

the defendants were an

accomplice of the persons

who committed it.

Trial Tr. at 564-65, 577-78 (Sept. 19,

1991).

Priester argues that although he was

charged with three different degrees of

homicide, including first degree murder

which requires a specific intent to kill,

Smith v. Horn, 120 F.3d 400, 422 (3d Cir.

1997), “the import of the instruction

regarding the requirement of specific

intent to kill was diluted by the court’s

instructions regarding accomp lice

liability.” Appellant’s Br. at 25. As the

District Court stated:
10

Priester claims that

the instruction to the jury

enabled the jury to find him

guilty as an accomplice to

first-degree murder even if

he did not have the intent to

kill. This instruction,

Priester continues, violated

Pennsylvania law – which

makes specific intent to kill

an essential element for

accomplice liability to first

degree murder – and

burdened his fundamental

right under the Due Process

Clause to be convicted only

upon proof beyond a

reasonable doubt of every

element of the offense.

App. at 20 (footnotes omitted). On state

collateral review, the Pennsylvania

Superior Court held that the instructions

were correct as a matter of state law. App.

at 71.

Federal courts reviewing habeas

claims cannot “reexamine state court

determinations on state-law questions.”

Estelle v. McGuire, 502 U.S. 62, 67-68

(1991). This is particularly true in the

instant case because the issue of

appropriate jury instructions on

accomplice liability in first-degree murder

trials has been squarely addressed by the

P e nnsylvani a Suprem e Cou r t .

Commonwealth v. Thompson, 674 A.2d

217, 222-23 (Pa. 1996) (upholding

accomplice liability instructions nearly

identical to those quoted above);

Commonwealth v. Chester, 587 A.2d

1367, 1384 (Pa. 1991) (same).

Bound by the state court’s

determination that the instruction at issue

comported with state law, it is evident that

Priester cannot satisfy the first component

of a viable ineffective assistance of

counsel claim – that c oun sel’s

performance was deficient. Thus Priester

cannot overcome the “strong presumption”

that his counsel’s conduct fell outside the

“wide range of reasonable professional

assistance.” Strickland, 466 U.S. at 689.

III.

CONCLUSION

Applying AEDPA’s deferential

standard in reviewing Priester’s habeas

petition, we hold that the District Court did

not err in concluding that the admission of

the redacted statement comported with the

requirements of the Sixth Amendment and

that trial counsel’s failure to object to the

accomplice liability instruction did not

constitute ineffective assistance of

counsel.

For the reasons given above, we

will affirm the District Court’s order

denying the petition for a writ of habeas

corpus.