NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________ 

No. 22-1668

_______________

MAURICE TURNER,

 Appellant

v.

ADMINISTRATOR NEW JERSEY STATE PRISON; ATTORNEY GENERAL NEW 

JERSEY; PROSECUTOR MERCER COUNTY

_______________

On Appeal from the United States District Court

For the District of New Jersey

(D.C. No. 3-18-cv-17384)

District Judge: Honorable Freda L. Wolfson

_______________

Submitted Under Third Circuit L.A.R. 34.1(a)

March 24, 2023

Before: JORDAN, GREENAWAY, JR., and McKEE, Circuit Judges

(Filed April 6, 2023)

_______________

OPINION

_______________

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent. 
2

JORDAN, Circuit Judge.

Maurice Turner appeals the denial of his habeas petition. He argues that, at his 

state court trial in New Jersey, a prosecution witness impermissibly implicated him by 

relating information from a non-testifying co-defendant, in violation of the Confrontation 

Clause of the Sixth Amendment. Even assuming that a constitutional violation occurred, 

however, the error was harmless, so we will affirm.

I. BACKGROUND

In 2003, William Goldware was robbed and murdered in the home of Turner’s codefendant Karla Freeman, who police found at the scene of the crime crying and covered 

in blood. A grand jury in Mercer County, New Jersey returned an indictment charging 

both Turner and Freeman with crimes related to the homicide. The trials for Turner and 

Freeman were ultimately severed,

1

and both were convicted of the robbery and murder of 

Goldware.2 Turner was sentenced to life imprisonment and Freeman to thirty years to 

life imprisonment. 

1 There are some open questions about the procedural history in this case, though 

they are not relevant here. Turner claims that there were two joint jury trials with codefendant Freeman before the final, severed trials, and that the first two trials ended in 

mistrials. He provides no record support for those assertions. (Opening Br. at 3.) 

Evidently, the New Jersey appeals court had the same experience with him, since it said 

that, “[a]lthough there is no record support ... [Turner] includes in his brief an 

observation that his first two trials ended in mistrials, the first because of a Bruton

problem, ... when a witness testified to Freeman’s statement implicating him, and the 

second as a result of a deadlocked jury.” State v. Turner, No. A-1227-07T4, 2009 WL 

3416031, at *4 n.3 (N.J. Super. Ct. App. Div. Oct. 8, 2009). The State does not address 

the procedural history of this case other than to mention that Turner’s jury trial was 

“bifurcated from [his] co-defendant’s case.” (Answering Br. at 2.)

2 Turner was convicted of first-degree murder, first-degree felony murder, and 
3

Freeman gave conflicting stories about what happened that night. Her statements 

to detectives are set out in detail in State v. Freeman, 2010 WL 3611979, at *2-4 (N.J. 

Super. App. Div. Sept. 10, 2010). At first, she told Detective Timothy Thomas that an 

intruder came into the house and attacked Goldware, but when Thomas observed no signs 

of forced entry in the home, Freeman confessed that she had a sex-for-money 

arrangement with Goldware and stabbed him during a fight after Goldware refused to 

pay. Id. at *2-3. As Thomas was compiling her statement, however, Freeman said, 

“Detective, that’s not what happened. Me and Maurice set him up to rob him, and 

Maurice stabbed him.” Id. at *3. When Thomas asked if she was sure, she replied, “No, 

no, that’s not what happened .... I killed him.” Id. Her story changed again, when, upon 

meeting Thomas later to give a taped statement, she claimed that she and Turner set up 

Goldware to rob him and that she did not know that Turner planned to stab Goldware. Id. 

at *3-4. She said that Turner told her to leave her door open so he could enter and rob 

Goldware. Id. at *3. She claimed that she did not think Turner had guns or knives and 

only thought he was going to “hit [Goldware] in his head and go in his pockets and 

leave.” Id. at *4 (alteration in original). She said they planned to split the money “half 

and half.” Id. When Turner arrived at the home, Freeman distracted Goldware by 

kissing him; Turner entered the bedroom and stabbed Goldware three or four times;3

first-degree robbery (Counts I, II, and IV); Freeman was convicted of first-degree felony 

murder and second-degree robbery (Counts II and IV).

3 A medical examiner testified at trial that Goldware suffered twenty-four stab 

wounds on his upper body and that the stab wounds, particularly to his lungs and heart, 
4

Freeman and Goldware fled to the bathroom where Turner followed them; and Turner

“was pulling the door toward him and [Freeman] was pulling the door toward [her] ... 

[and] [t]hat’s when [Turner] busted the bathroom door window out[.]” (App. at 11-12

(quoting Freeman’s May 25, 2003 Statement at 3) (first and second alterations in 

original).)

When asked about her contradictory versions of the events, Freeman stated that 

she “was terrified, and [she] knew [she] had part in robbing [Goldware], but [she] did not

know [Turner] was going to stab [Goldware].” Freeman, 2010 WL 3611979 at *4 (third, 

fifth, and sixth alterations in original). She further stated that she felt guilty and initially 

accepted blame because if she had not left the door open, Goldware would not have been 

stabbed. And she was worried about her cousin, Kandis Queen, who had a child with 

Turner. When asked why this final statement implicating Turner was more reliable than 

her previous statements, she declared, “[b]ecause I’m willing to take my punishment, but 

I’m not willing to pay for somebody else murdering. Also, this is the truth about what 

happened.” Id. (alteration in original.)

The State did not call Freeman to testify at Turner’s trial and did not submit her 

taped statement into evidence. But the State did call Thomas, who testified about the 

condition of the crime scene based on his observations shortly after arriving. The crux of 

this appeal is whether Thomas’s testimony improperly incorporated information from 

Freeman’s prior statements that inculpated Turner. 

were the cause of his death. Turner, 2009 WL 3416031, at *2.
5

Specifically, defense counsel prodded Thomas during cross-examination to 

describe why he did not think any struggle occurred in the bathroom given the large 

amount of blood on site:

[THOMAS:] I believe the struggle, most of the struggle happened in that 

back part of the bedroom area, because of the blood, the damage to the walls 

and the cell phone recovery and the ironing board.

[THE DEFENSE:] And that certainly explains why there was blood 

throughout the entire bathroom, is that correct?

[THOMAS:] That’s where [Goldware] went into. He closed the door and 

started bleeding, and [Turner] was trying to get in. [Goldware] kept bleeding.

[Turner] was trying to get in, and that’s where [Goldware] lost most of his 

blood.

[THE DEFENSE:] That’s your theory, huh?

[THOMAS:] That’s the information I have, yes.

State v. Turner, No. A-1227-07T4, 2009 WL 3416031, at *2-3 (N.J. Super. Ct. App. 

Div. Oct. 8, 2009) (emphasis removed).

Defense counsel did not contemporaneously object to the “[t]hat’s the information 

I have” remark.4 The day following Thomas’s testimony, however, Turner moved for a 

4 Turner also raised an argument for the first time in his reply brief that additional 

testimony from Thomas on cross-examination was prejudicial. Thomas testified that 

“[Turner] was a frequent visitor to [Freeman’s] residence ...”, which the defense objected 

to and which Turner now characterizes as improperly implicating him in the murder. 

(Reply Br. at 16-17.) Issues raised for the first time in a reply brief are generally 

forfeited. Hoxworth v. Blinder, Robinson & Co., Inc., 903 F.2d 186, 204 n.29 (3d Cir. 

1990) (“As a general matter, the courts of appeals will not consider arguments raised on 

appeal for the first time in a reply brief.”). Regardless, the State withdrew the testimony 

and line of questioning, and the trial judge’s jury instructions expressly told the jurors not 

to consider any “evidence excluded by the court,” including evidence withdrawn after a 

successful objection. Turner, 2009 WL 3416031, at *6.
6

mistrial, “arguing that Thomas’s testimony was taken ‘almost verbatim’ from the 

statements Freeman provided to police.” (App. at 13.) The state trial judge denied the 

motion, concluding that there was no prejudice because the jury was unaware that 

Thomas’s testimony conformed to one of Freeman’s statements and that sufficient 

evidence in the record supported Thomas’s theory. Turner appealed, but the New Jersey 

Superior Court, Appellate Division, agreed and clarified that it found no Confrontation 

Clause violation occurred at all. See Turner, 2009 WL 3416031, at *5, *14. The New 

Jersey Supreme Court subsequently denied his petition for certification without an 

accompanying opinion, and his post-conviction relief petitions were unsuccessful. 

Turner then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 

with the United States District Court for the District of New Jersey, citing multiple 

grounds, including a violation of his Sixth Amendment right to confront the witnesses 

against him. The District Court denied his petition. Turner timely appealed, and we 

granted a Certificate of Appealability with respect to the Confrontation Clause issue. 

II. DISCUSSION5

Turner’s claims were adjudicated on the merits and exhausted in state court 

proceedings, so the “highly deferential” standards of the Antiterrorism and Effective 

Death Penalty Act of 1996 (“AEDPA”) apply.6 28 U.S.C. § 2254(d); Renico v. Lett, 559 

5 The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. We have 

appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

6 The state appeals court did not engage in a harmlessness analysis typically 

required under Chapman v. California, 386 U.S. 18, 24 (1967), because it found no 

constitutional error ab initio. Turner, 2009 WL 3416031, at *5. Thus, there is no 
7

U.S. 766, 773 (2010) (“AEDPA ... imposes a highly deferential standard for evaluating 

state-court rulings and demands that state-court decisions be given the benefit of the 

doubt.”) (cleaned up). Turner is not entitled to a writ of habeas corpus unless the state 

proceedings

(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; or 

(2) resulted in a decision that was based on an unreasonable determination of 

the facts in light of the evidence presented in the State court proceeding. 

28 U.S.C. § 2254(d).

In addition, habeas petitioners “are not entitled to habeas relief based on trial error 

unless they can establish that it resulted in actual prejudice.” Brecht v. Abrahamson, 507 

U.S. 619, 637 (1993) (internal quotation marks omitted). “Actual prejudice” is “more 

than a reasonable possibility that the error was harmful.” Davis v. Ayala, 576 U.S. 257, 

267-68 (2015) (internal quotation marks omitted). “[A]n error is harmless unless it had 

substantial and injurious effect or influence in determining the jury’s verdict.” Fry v. 

Pliler, 551 U.S. 112, 116 (2007) (internal quotation marks and citations omitted). Our 

role is to understand as best we can whether constitutional error “substantially influenced 

the jury’s decision.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995). “If, when all is 

said and done, the court’s conviction is sure that the [alleged] error did not influence the 

jury, or had but very slight effect, the verdict and the judgment should stand.” Id. at 437 

“decision” subject to AEDPA deference as it pertains to harmlessness, and we engage in 

harmless error review pursuant to Brecht v. Abrahamson, 507 U.S. 619 (1993). 
8

(cleaned up). If, on the other hand, we have “grave doubt as to the harmlessness of an 

error that affects substantial rights, [we] should grant relief.” Id. at 445; see also id. at 

435 (“‘grave doubt’ ... mean[s] that, in the judge’s mind, the matter is so evenly balanced 

that he feels himself in virtual equipoise as to the harmlessness of the error.”).

The Supreme Court has stated that the following factors bear upon harmlessness: 

“the importance of the witness’ testimony in the prosecution’s case, whether the

testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, the extent of crossexamination otherwise permitted, and, of course, the overall strength of the prosecution’s 

case.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

Here, after review of the record, we do have some reservations about the state 

courts’ conclusion that Turner’s trial was not infected with impermissible testimonial 

hearsay and thus not problematic under the Confrontation Clause. Thomas testified about 

facts that went beyond his observation of the crime scene. For example, Thomas testified 

about the tussle between Turner and Goldware in the bathroom, saying “[Turner] was 

trying to get in. [Goldware] kept bleeding. [Turner] was trying to get in, and that’s 

where [Goldware] lost most of his blood.” Turner, 2009 WL 3416031, at *3. It is 

unclear how this account could have been ascertained by merely walking the crime scene. 

While it is true that forensic evidence at trial showed Turner’s blood on the bathroom 

doorknob, id., that fact alone does not show a struggle occurred any more than it shows 

Turner may have merely opened the door with a bloody hand at the crime scene. Cf., id.
9

at *6 (the New Jersey Appellate Division concluding that a struggle was “an entirely 

proper inference reasonably drawn from the State’s DNA evidence.”). 

Additionally, prior to the bathroom-struggle testimony, the jury heard Thomas

testify about interacting with Freeman upon first arriving at the crime scene and receiving 

then and later multiple, conflicting statements from her.

7

 Thus, it is possible that the jury 

could have suspected that Thomas’s testimony was informed by Freeman’s account,8

even if he did not come out and say it.9 In any event, that would not have been an 

illogical implication, contrary to the state appellate court’s conclusion, Turner, 2009 WL 

3416031, at *5 (“[N]either [the] defendant nor Thomas specified that Thomas’s 

testimony was derived from Freeman’s statements given to police. ... The logical 

implication to be drawn from Thomas’s testimony was that ‘the information’ he had was 

based on his own physical observations of the scene.”). What is more, the jury asked for 

Freeman’s statements during deliberations, although that request was later withdrawn. 

Id. at *5. Turner asserts that this was further evidence that the jury believed that (at least 

part of) Thomas’s testimony was gleaned from Freeman, id.; the state court dismissed the 

7 The content of Freeman’s statements was never revealed by Thomas during 

testimony. 

8 The jury also heard Thomas testify that the police “started looking for” Turner as 

a suspect after recording Freeman’s statement. (Opening Br. at 15 (quoting trial 

transcript, District Court Docket Item No. 17 at 161-62).) 

9

Indeed, even the trial judge at sidebar told the prosecutor he was “skating on real 

thin ice ... and h[ad] been for [a] ... few minutes” with respect to Thomas’s testimony. 

(App. Vol. 2 at 231.)
10

connection as “sheer speculation[.]” Id. at *5. Considered in totality, however, the 

defense view is not entirely without foundation. 

Finally, the State offered additional facts during summation that could only have 

come from Freeman’s statements: that she lured Goldware to her house with the promise 

of sex, and that she left the door open for Turner to enter the house and rob Goldware.10 

The State did not call Freeman as a witness to testify about any of these theories, and yet 

the jury heard them during closing argument without the benefit of adversarial crossexamination.11

Against this backdrop, the state trial court considered and rejected Turner’s 

request for a mistrial, reasoning that the defense “opened the door to the complained-of 

testimony” by asking Thomas for “his theory about what happened”; that there was no 

10 These statements are purportedly from the State’s summations during closing 

arguments. Improper statements made in closing arguments are typically subject to 

prosecutorial misconduct claims. Gov’t of the V.I. v. Mills, 821 F.3d 448, 456 (3d Cir. 

2016) (arguing that prosecutorial misconduct violated the defendant’s Fifth Amendment 

right to due process to receive a fair trial). 

11 While, in his opening brief in this appeal, Turner makes a passing reference to 

the allegedly improper summation, he waited until his reply brief to introduce the actual 

trial transcript excerpts. Moreover, Turner has not supplied us with the relevant trial 

transcripts in the Appendix. Counsel should always provide the Court with materials 

cited in the briefing. Again, issues raised for the first time in a reply brief are generally 

forfeited. See supra n.4 (citing Hoxworth, 903 F.2d at 204 n.29); see also Laborers’ Int’l

Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 

1994) (“An issue is waived unless a party raises it in its opening brief, and for those 

purposes a passing reference to an issue ... will not suffice to bring that issue before this 

court.”) (internal quotation marks omitted). But, given the weighty Sixth Amendment 

issues involved, we will consider Turner’s belated claim. And we do so without 

requesting corroboration of the quoted trial transcript or allowing the State to respond 

because we ultimately decide this case on the ground of harmless error.
11

prejudice because the jury was unaware that Thomas’s testimony conformed to one of 

Freeman’s statements; and that there was sufficient scientific evidence in the record to 

support Thomas’s theory. Turner, 2009 WL 3416031, at *3. It thus appears that the trial 

court assessed prejudice and sufficiency of the evidence but did not explicitly decide 

whether there was constitutional error and, if there was, whether it was harmless. 

Under AEDPA, we review the “highest-level state court[’s]” decision, which, in 

this instance, is the New Jersey Superior Court’s Appellate Division.

12

 Vazquez v. 

Wilson, 550 F.3d 270, 276 (3d Cir. 2008) (“Under the AEDPA we must review the state 

court proceedings and affirm the denial of the petition unless we are satisfied that [the 

petitioner] has demonstrated that the ... highest-level state court to review the [alleged 

constitutional error], made a determination that ‘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.’” (quoting 28 U.S.C. 

§ 254(d)(1))). The Appellate Division affirmed the trial court but chose a different 

analytical route by holding that no constitutional error occurred during trial, and thus no 

harmless error analysis was required. Turner, 2009 WL 3416031, at *5. As stated 

before, we have some doubt about that conclusion, especially in light of Douglas v. 

12 Although the New Jersey Supreme Court reviewed and denied Turner’s petition 

for certification, the Supreme Court of the United States has held that “a discretionary 

denial of leave to appeal does not typically entail an ‘adjudication’ of the underlying 

claim’s ‘merits’ under AEDPA’s terms. Instead, it usually represents ‘a decision by the 

state supreme court not to hear the appeal – that is, not to decide at all.’” Brown v. 

Davenport, ___ U.S. ___, 142 S. Ct. 1510, 1529 (2022). 
12

Alabama, 380 U.S. 415, 419 (1965), which held that the statements of a non-testifying 

co-defendant cannot be introduced in trial through the testimony of law enforcement. 

Nevertheless, we do not have a sufficient doubt that any purported constitutional error at 

trial caused actual prejudice to Turner.

Assuming without deciding that a trial error of constitutional magnitude occurred, 

that error was harmless under Brecht, given the overwhelming countervailing evidence.13 

Voluminous evidence thoroughly implicated Turner in the crimes. For example, Turner’s 

cell phone, complete with a sticker with his known nickname “Young Reese,” was found 

at the crime scene;14 Turner’s girlfriend, Kandis Queen, testified that she lent Turner her 

car on the night of the murder and that he left their apartment at 8:00 pm and did not 

return for five or six hours;

15 the State presented phone records which established that 

13 The Supreme Court of the United States has instructed that we are required only 

to consider the more deferential Brecht harmless error standard on collateral review even 

when the highest-level state court on direct review did not engage in the initial, more 

defendant-friendly “harmless beyond a reasonable doubt” test under Chapman v. 

California, 386 U.S. 18, 24 (1967), as is the case here. See Fry v. Pliler, 551 U.S. 112, 

121-22 (2007) (holding “that in § 2254 proceedings a court must assess the prejudicial 

impact of constitutional error in a state-court criminal trial under the ‘substantial and 

injurious effect’ standard set forth in Brecht ... whether or not the state appellate court 

recognized the error and reviewed it for harmlessness under the ‘harmless beyond a 

reasonable doubt’ standard set forth in Chapman[.]”) “Brecht effectively inverted 

Chapman’s burden” and requires the petitioner to now prove that any error had a 

substantial and injurious effect on the verdict. Davenport, 142 S. Ct. at 1519. 

14 The cell phone was registered to Turner’s girlfriend, Kandis Queen, who 

testified that she lent it to Turner on the night of the murder. (App. at 5); see also 

Freeman, 2010 WL 3611979 at *2 (noting in the factual recitation that “‘Young Reese[]’

[was] a nickname for ... Maurice Turner.”).

15 Telephone records established that calls between Freeman and Turner were 

made between 1:31 a.m. and 2:16 a.m. Freeman, 2010 WL 3611979 at *4. A 911 call 
13

five phone calls were exchanged between Freeman and Turner, and eleven between 

Freeman and Goldware; the State presented a black t-shirt found in Turner’s closet with 

blood on the back hem; testimony was presented about lacerations on Turner’s arms

when he was arrested a few days after the crime; and a forensic scientist testified that the 

blood on Turner’s black t-shirt was in fact Goldware’s, as was the blood found on the gas

pedal of the car Turner borrowed from Queen; the forensic scientist also confirmed that 

Turner’s blood was found throughout crime scene (on the front door, top of the stairwell, 

and the bathroom door knob), and on the steering wheel and dashboard of Queen’s car. 

Turner, 2009 WL 3416031, at *2. There was thus a trove of evidence, unconnected with 

Thomas’s testimony, from which a jury could convict beyond a reasonable doubt.

When all is said and done, we are not persuaded that the alleged error had a 

“substantial and injurious effect” on the jury’s verdict. Brecht, 507 U.S. at 637.

III. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s denial of habeas 

relief.

was placed at 2:44 a.m. to the City of Trenton reporting an assault in progress at 

Freeman’s home.