                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-17-2003

Evans v. Lavan
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2483




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"Evans v. Lavan" (2003). 2003 Decisions. Paper 269.
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                                                NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                        NO. 02-2483



                       LEROY EVANS,
                               Appellant

                              v.

       THOMAS LAVAN; THE DISTRICT ATTORNEY
     OF THE COUNTY OF DELAWARE; THE ATTORNEY
     GENERAL OF THE STATE OF PENNSYLVANIA; THE
      DISTRICT ATTORNEY OF DELAWARE COUNTY



        On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                (D.C. Civil No. 01-cv-03914)
           District Judge: Hon. Charles R. Weiner


          Submitted Under Third Circuit LAR 34.1(a)
                     September 5, 2003

   Before: SLOVITER, NYGAARD, and ROTH, Circuit Judges

                 (Filed: September 17, 2003)




                  OPINION OF THE COURT
SLOVITER, Circuit Judge.

       Appellant Leroy Evans appeals from the order of the District Court denying his

petition for a writ of habeas corpus, arguing that counsel was ineffective in failing to object

to the prosecutor’s closing argument remarks which allegedly injected racial prejudice into

the case when she asked, referring to defense witness Lorraine Evans, “Was she so

venomous because I was white?” After review of the record, we cannot conclude that Evans

has satisfied the strict standard required to grant a writ of habeas corpus.

                                               I.

                          FACTS and PROCEDURAL HISTORY

       Leroy Evans was tried by a jury in a Pennsylvania state court and convicted on

October 21, 1981, of first-degree murder, robbery, criminal conspiracy, burglary,

tampering with evidence and hindering apprehension. He was sentenced to life in prison

plus 9 to 20 years. The incident leading to Evans’ conviction involved the robbery and

murder of Emily Leo, a part-time Avon salesperson, whom Evans and co-conspirator

Anthony Jones lured to Jones’ home in Chester on November 11, 1980. During the

commission of the crime, Evans and Jones choked Leo with a clothesline, beat her with an

iron, and dragged her to a nearby lot. When Leo temporarily regained consciousness, Jones

threw rocks at her until a passerby saw him and called the police. Leo died from loss of

blood and massive head trauma one week after the attack.

       Police apprehended Jones the day of the incident. Evans later entered Jones’ house

through a second-story window while police guarded the ground-level doors of the crime

                                               2
scene, removed bloody clothes linking Jones to the crime, and destroyed them. Evans was

charged with burglary and tampering with evidence that day, and, after Jones agreed to plead

guilty and offer testimony against Evans, Evans was also charged with murder, robbery and

conspiracy. In exchange for Jones’ testimony, prosecutors sought a sentence of life

imprisonment for Jones rather than the death penalty.

       Jones’ testimony at trial included the statement that a neighbor, Lorraine Evans (no

relation to Appellant Leroy Evans), saw the two of them exit Jones’ home during the

commission of the crime. However, the defense brought Lorraine Evans as a witness, and

she testified that she had seen Evans in Jones’ yard while the police were investigating what

had happened that day but, contrary to Jones’ own testimony, she stated she had not seen

Jones and Evans exiting the house. On cross-examination, the prosecutor observed that

Lorraine Evans was hostile, and asked her why. Lorraine Evans admitted being hostile, but

attributed her attitude as a response to the hostile treatment she had received from the

prosecutor.

       During her closing statement, the prosecutor said the following about Lorraine

Evans, who is African-American:

                      And then they presented the testimony of Lorraine
              Evans – Lorraine Evans, the woman whose demeanor you saw
              on the witness stand, a woman who was venomous on the
              witness stand and who was hostile not only to the people that
              were questioning her but you could see it and you could tell it
              in the content of her answers. Ladies and Gentlemen, was she
              so venomous because of what I stood for? Was she so
              venomous because I was white? Was she so venomous because
              she didn’t like cops?

                                              3
                       When Anthony Jones said Lorraine Evans saw him and
               Leroy Evans going out that back door does it make sense for
               him to name a woman like that who is so hostile to him?
               Wouldn’t it, if Anthony Jones were going to fabricate
               something, wouldn’t he pick one of the corner kids from the
               neighborhood or one of the women that lived in the project
               close to his family to say she saw the two of us coming out of
               the house and waived [sic] to us? But he didn’t. He picked that
               rattle snake, Lorraine Evans.

App. II at 38a. Evans’ defense counsel at trial did not object to these remarks.

       In the 22 years since Evans’ conviction, he has filed several unsuccessful challenges

in state court. His direct appeal to the Superior Court was dismissed on July 3, 1984 for

failure to file an appellate brief. In 1986, after filing a post-conviction collateral relief

petition under Pennsylvania’s Post Conviction Hearing Act (“PCHA”), Evans was granted

the right to file a direct appeal nunc pro tunc. However, Evans never filed the appeal. Evans

then filed another post-conviction collateral relief petition under the Post Conviction

Relief Act (“PCRA”), but the state court denied relief. After several more attempts at

appeal, Evans was granted another opportunity to file a direct appeal nunc pro tunc, and

Evans filed his appeal on March 26, 1999. The Superior Court affirmed the judgment of

sentence, and the Pennsylvania Supreme Court denied Evans’ request for Allowance of

Appeal.

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

challenging the constitutionality of his conviction and sentence and raising the following

issues: (1) whether the prosecutor improperly injected race into Evans’ criminal trial; (2)


                                                4
whether the Pennsylvania Supreme Court denied him procedural due process when it denied

his latest petition for Allowance of Appeal; and (3) whether appellate counsel was

ineffective in drafting the petition for Allowance of Appeal for abandoning four of Evans’

five appellate issues.

       On May 13, 2002, the District Court denied Evans’ petition for a writ of habeas

corpus, and granted a certificate of appealability under 28 U.S.C. § 2253 on issues (1) and

(2). Issue (3) was dismissed because it had not yet been presented to the state court.

       Evans filed this appeal on May 24, 2002, raising only the issue of whether the

prosecutor’s characterization of the defense witness as “venomous” and a “rattlesnake,” as

well as the prosecutor’s attributing possible racial bias to the witness, invited racial bias on

the part of the jury, and thus denied Evans (who himself is African-American) his due

process right to a fair trial.

                                               II.

                                        DISCUSSION

       This court has appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253. We can

conduct a plenary review of the state court’s decision when the District Court relies

exclusively on the state court record and has not conducted an evidentiary hearing in a

federal habeas appeal. Moore v. Morton, 255 F.3d 95, 103 (3d Cir. 2001). Our review for

a federal habeas corpus appeal is set out in the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”):

               An application for a writ of habeas corpus on behalf of a person

                                               5
              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) 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). The United States Supreme Court has held that “federal habeas courts

must make as the starting point of their analysis the state courts’ determinations of fact,”

noting that AEDPA “sought to ensure a level of ‘deference to the determinations of state

courts,’ provided those determinations did not conflict with federal law or apply federal law

in an unreasonable way.” Williams v. Taylor, 529 U.S. 362, 386 (2000) (citation omitted).

       We consider first whether the prosecutor’s comments injected race into the case.

We have noted that while “courts applying Supreme Court precedent have found that

improper racial and ethnic references can be so prejudicial as to result in a denial of due

process,” not all such references constitute due process violations. Moore, 255 F.3d at

113-14. The Supreme Court has recognized that closing statements often involve

improvisation on the part of prosecutors, and, although that does not excuse prosecutorial

misconduct, it “do[es] suggest that a court should not lightly infer that a prosecutor intends

an ambiguous remark to have its most damaging meaning or that a jury, sitting through

lengthy exhortation, will draw that meaning from the plethora of less damaging

                                              6
interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974).

       In reviewing Evans’ appeal, the Pennsylvania Superior Court did not find

prosecutorial misconduct because the prosecutor’s question referencing race was isolated

and was related only to the witness’ demeanor, not to the defendant. App. II at 38a.

Applying the standard set out by the Pennsylvania Supreme Court in Commonwealth v.

Murphy, 657 A.2d 927, 935 (Pa. 1995), the Superior Court determined that the

prosecutor’s question did not interfere with exculpatory testimony, and it did not “hinder

objective weighing of evidence [nor] impede the rendering of a true verdict.” App. II at 37a,

40a.

       The District Court’s view was similar. The Court stated,

              The evidence, as discussed by the trial court, was based in large
              part upon the evidence of Evans’ co-conspirator who described
              in detail Evans’ participation in the murder, burglary and
              obstruction of the ensuing investigation. The isolated
              comment of the prosecutor during her summation was not
              directed to Evans nor to the heart of the Commonwealth’s
              evidence.

App. at 8a (Evans v. Lavan, C.A. No. 01-3914 (E.D. Pa. May 14, 2002)).

       The District Court also suggested that the defense attorney’s failure to object to the

prosecutor’s question in her closing statement could have been a strategic decision not to

call attention to the issue, and did not rise to the standard for proving ineffective assistance

of counsel as set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984).

       The Superior Court and District Court opinions are persuasive. Evans disputes the

                                               7
finding that the prosecutor’s reference to race was “isolated,” arguing that the prosecutor’s

lengthy comments about defense witness Lorraine Evans’ hostility culminated in the

question about racial bias. Evans relies on our opinion in Moore, where we noted that

“[r]acially or ethnically based prosecutorial arguments have no place in our system of

justice” and are only permissible where they are not so prejudicial as to constitute due

process violations. 255 F.3d at 113-14. But, as the Government points out, the Moore

case is factually distinguishable. In Moore, the prosecutor based his theory of guilt on the

fact that the African-American male defendant was married to a white woman and thus

would be naturally attracted to the white woman he was accused of raping. Id. at 99. The

conviction was reversed on the ground that even curative instructions from the trial judge

could not overcome the prejudice caused by the prosecutor’s statements. Id. at 118. In this

case, defense witness Lorraine Evans’ testimony was not so central to either the

Government’s or defense’s theory of guilt or innocence that the prosecutor’s question

about the source of her hostility could infect the trial and subvert due process in the same

way as in Moore.

       We thus conclude that the state court opinion did not “result[ ] in a decision that was

contrary to, or involve[ ] an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court.” See 28 U.S.C. § 2254(d). The court weighed the

evidence in the record and determined that the prosecutor’s statement attacking the

witness’ credibility was not unduly prejudicial. In addition, there is no misapplication of

“clearly established Federal law” to support Evans’ “secondary effect” argument – that the

                                               8
prosecutor, by suggesting racial bias on the part of an African-American witness, invites

racial bias on the part of any non-African-American jurors toward Evans, who is also

African-American.

                                             III.

                                        CONCLUSION

       For the reasons set forth, we will affirm the District Court’s order denying a writ of

habeas corpus.



TO THE CLERK:

              Please file the foregoing opinion.



              /s/ Dolores K. Sloviter
              Circuit Judge
