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


11-5-2003

Martini v. Hendricks
Precedential or Non-Precedential: Precedential

Docket No. 02-9005




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                           PRECEDENTIAL

                                   Filed October 22, 2003

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                     No. 02-9005


                 JOHN MARTINI, SR.,
                                   Appellant
                          v.
  ROY L. HENDRICKS, Administrator, New Jersey State
Prison; PETER C. HARVEY, Acting Attorney General, State
                    of New Jersey

    On Appeal From the United States District Court
             For the District of New Jersey
               (D.C. Civ. No. 99-cv-04347)
      District Judge: Honorable William H. Walls

                 Argued: July 8, 2003
  Before: ROTH, BECKER and COWEN, Circuit Judges.

               (Filed: October 22, 2003)
                    YVONNE SMITH SEGARS
                    Public Defender of New Jersey
                    MARK H. FRIEDMAN (Argued)
                    Assistant Deputy Public Defender
                    THERESA YVETTE KYLES
                    Assistant Deputy Public Defender
                    Office of the Public Defender
                    Department of the Public Advocate
                    31 Clinton Street
                    P.O. Box 46003
                    Newark, NJ 07101
                              2


                      ALAN L. ZEGAS
                      PATRICIA A. LEE
                      552 Main Street
                      Chatham, NJ 07928
                      Counsel for Appellant
                      JOHN L. MOLINELLI
                      Bergen County Prosecutor
                      CATHERINE A. FODDAI (Argued)
                      Assistant Prosecutor
                      Bergen County Justice Center
                      Hackensack, NJ 07601
                      Counsel for Appellees


                 OPINION OF THE COURT

BECKER, Circuit Judge:
   This is an appeal from the order of the District Court
denying the petition of John Martini, Sr. for a writ of
habeas corpus brought pursuant to 28 U.S.C. § 2254(a).
Martini was convicted of first-degree murder and related
offenses in connection with the disappearance and death of
Irving Flax, a Fairlawn, New Jersey businessman. Flax was
forcibly taken from his home by Martini and his then-
girlfriend, Therese Afdahl. The pair demanded ransom
money from Flax’s wife and although Mrs. Flax paid the
money, Martini murdered Flax by three pistol shots to the
back of the head, and left his body in a parking lot. It was
not disputed that Martini committed the crime; rather, the
defense challenged the state’s claim that he acted purposely
or knowingly, adducing evidence that Martini’s capacity
was diminished by serious and long-standing addiction to
cocaine. The jury rejected that defense at both the guilt and
penalty phases of the trial, and Martini was sentenced to
death. Martini seeks to overturn his sentence, alleging, inter
alia, that a potential juror was improperly dismissed for
cause in violation of Witherspoon v. Illinois, 391 U.S. 510
(1968), and also that the trial court improperly answered a
jury question regarding the permissible use of mitigating
                                   3


evidence, the two issues on which we granted a Certificate
of Appealability (“COA”).
   We have no difficulty with the latter point, and reject
Martini’s contention. The former issue is, however, close
and difficult with respect to juror Ronald Vladyka (though
not with respect to two other jurors with respect to whom
a COA was not issued). Martini presents a forceful
argument that the ability of juror Ronald Vladyka to follow
the trial Court’s instructions as to the penalty phase was
not substantially impaired, and that he should have been
seated on the jury. We conclude, however, that Martini has
failed to meet the rigorous standard of 28 U.S.C.
§ 2254(e)(1) for rebutting, by clear and convincing evidence,
the presumption of correctness of the finding of the state
trial judge, affirmed by the New Jersey Supreme Court, that
Vladyka’s ability was substantially impaired, and hence we
will affirm the order of the District Court.

        I.   Procedural History; Standard of Review
   After a Bergen County, New Jersey jury convicted Martini
of the 1990 Flax kidnapping and murder, the New Jersey
Supreme Court upheld the conviction and death sentence
on direct appeal. State v. Martini, 131 N.J. 176, 619 A.2d
1208 (1993). Although Martini was initially scheduled to be
executed in 1995, the public defender successfully sought
a stay and in the ensuing years has filed several appeals
alleging, inter alia, psychiatric incompetence to waive post-
conviction relief proceedings, ineffective assistance of
counsel, and violation of Martini’s Brady right to
exculpatory evidence. The New Jersey Supreme Court
affirmed the trial court’s denial of post-conviction relief on
each of these grounds. State v. Martini, 139 N.J. 3, 651
A.2d 949 (1994); State v. Martini, 144 N.J. 603, 677 A.2d
1106 (1996); State v. Martini, 148 N.J. 453, 690 A.2d 603
(1997); State v. Martini, 160 N.J. 248, 734 A.2d 257 (1999).
  Martini then sought a writ of habeas corpus in the
District Court for the District of New Jersey under 28
U.S.C. § 2254, challenging his death sentence on seven
grounds listed in the margin.1 The District Court denied the

1. Martini asserted: (1) ineffective assistance of counsel for failure to
investigate and use at trial certain mitigating evidence; (2) ineffective
                                    4


petition in all respects. Although Martini sought relief on all
seven grounds, we granted a COA on only the two
referenced above. The District Court had jurisdiction
pursuant to 28 U.S.C. §§ 2241 and 2254, and we exercise
appellate jurisdiction under 28 U.S.C. §§ 2253 and 1291.
Although our review of the District Court’s decision is
plenary, Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir.
2002), under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) and the Supreme Court’s decision in
Williams v. Taylor, 529 U.S. 362 (2000), we must deny
federal habeas corpus relief to any claim which was
adjudicated on the merits in a state court proceeding
unless such adjudication:
     (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)(1) and (2) (2001).
  In this statutory scheme of legal deference, only the
unreasonable determination prong of § 2254(d)(2) is
potentially applicable to Martini’s Witherspoon claim. See,

assistance of counsel for failure to locate and produce drug
paraphernalia in the guilt and penalty phases; (3) violation of due
process rights stemming from the prosecution’s failure to turn over
mitigating evidence discoverable under Brady v. Maryland; (4) violation
of due process rights and right to an impartial jury for the wrongful
exclusion of prospective jurors; (5) subjection to cruel and unusual
punishment because of the trial court’s refusal to instruct the jury that
Martini rendered substantial assistance to the state in the prosecution
of another person for the crime of murder; (6) violation of due process
rights to a reliable sentencing proceeding and subjection to cruel and
unusual punishment because of the trial court’s allegedly erroneous
answer to the jury’s question regarding mitigating evidence; and (7)
denial of due process rights because of the state court’s refusal to admit
expert testimony during the post-conviction relief hearing. Martini v.
Hendricks, 188 F. Supp. 2d 505 (D.N.J. 2002).
                             5


e.g., Kinder v. Bowersox, 272 F.3d 532, 543-44 (8th Cir.
2001). Also relevant to the analysis is § 2254(e)(1):
    In a proceeding instituted by an application for a writ
    of habeas corpus by a person in custody pursuant to
    the judgment of a State court, a determination of a
    factual issue made by a State court, shall be presumed
    to be correct. The applicant shall have the burden of
    rebutting the presumption of correctness by clear and
    convincing evidence.
See Wiggins v. Smith, 123 S. Ct. 2527, 2539 (2003)
(applying the standard).

     II.   Wrongful Exclusion of a Prospective Juror

                            A.
   During voir dire, 209 persons were individually
questioned by the court and counsel. Over defense
counsel’s objection, the trial court excluded for cause
prospective juror Ronald Vladyka because the court
believed that his answers to the prosecutor’s and public
defender’s questions demonstrated that he would have
substantial difficulty voting for the death penalty. Martini
argues     that   Vladyka’s     exclusion   constitutes   an
unreasonable determination of the facts in light of the
evidence presented in state court. As we have explained
elsewhere, “Witherspoon’s holding is grounded in the right
to a fair and impartial jury guaranteed to state criminal
defendants by the Sixth and Fourteenth Amendments, and
thus veniremen can be excluded based on their views on
capital punishment only if they would be biased and lack
impartiality in hearing the case.” Szuchon, 273 F.3d at 327.
A trial court’s conclusion that a potential juror would be
biased is a factual determination, see id. at 330, and it is
therefore entitled to a presumption of correctness under 28
U.S.C. § 2254(e)(1).
  It is clear that potential jurors may not be excused for
cause “simply because they voiced general objections to the
death penalty or expressed conscientious or religious
scruples against its infliction.” Witherspoon, 391 U.S. at
                                  6


522. Instead, the Supreme Court has explained that the
standard for exclusion is whether a potential juror’s views
would “prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions
and his oath.” Wainwright v. Witt, 469 U.S. 412, 433 (1985)
(quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). It
emphasized that the determination of juror bias is a factual
one that need not be proven with “unmistakable clarity.” Id.
at 424. In this type of case, it is crucial to examine the
transcript in detail. Although we will discuss relevant
portions of it in this opinion, because the reader may find
it useful, we have attached the entire transcript, which is
relatively short, as an appendix to this opinion.
  It is beyond dispute that Vladyka was personally opposed
to the death penalty:
    Q. Do you have any feelings or beliefs about the death
    penalty?
    A.   I don’t believe in it.
    Q.   Under any circumstances?
    A. Well, I just — I don’t know. I just don’t believe in
    it. I can’t really give a reason why.
    Q. Do you think there are any crimes where the death
    penalty is an appropriate penalty?
    A.   Well — no.
    Q.   None at all?
    A.   No, not really.
(JA45-46).
  The law, however, is clear that mere personal opposition
to the death penalty is not cause for exclusion if the
prospective juror would nevertheless be able to follow his
oath and apply the death penalty if the facts and law
required. See Szuchon, 273 F.3d at 329 (holding improper
the removal of a prospective juror for cause where the court
found “no evidence that [his] lack of belief in capital
punishment would have prevented or substantially
impaired his ability to apply the law”). The Court, the
defense counsel, and the prosecutor all questioned Vladyka
                               7


as to the extent to which his personal views might inhibit
his ability to vote to impose capital punishment. We will
detail Vladyka’s responses.
  The Court proceeded first:
    Q. Do you feel that your beliefs about the death
    penalty would adversely affect your ability to fairly and
    impartially determine guilt or innocence?
    A.       No.
    *    *    *
    Q. As a sworn juror — would you be able to weigh the
    [aggravating and mitigating] factors, the evidence on
    both sides, apply the principles of law as I explain, and
    if the facts warranted — would you be able to vote to
    impose the death penalty?
    A. That’s a hard situation. You know, you don’t know
    the facts, okay.
    Q. That’s what I’ve said; you don’t know the facts, but
    let’s assume there are no mitigating factors, only
    aggravating factors, or the aggravating factors . . .
    outweigh the mitigating factors to such a degree that
    based on the law, as I explain it, you have no choice?
    A.       Can I —
    Q. Would you be able to vote to impose the death
    penalty?
    A.       Yes, sir.
(JA46-47.) The public defender then questioned Vladyka:
    Q. The issue really is regardless of how you feel about
    the death penalty, and you seem to be adverse to it,
    can [you] mechanically follow instructions with some
    thought if the Judge says “You’ve got to make a certain
    decision regardless of how reluctant you may feel to do
    so,” can you follow the law as the Judge gives it to
    you?
    A.       Yeah, sure.
    *    *    *
                                8


    Q. It may be that some of the mitigating factors the
    Judge may let you hear and we don’t know. We’re a
    week away, maybe John’s age could be that he was
    acting strangely about the time of the incident, not so
    strange as to be a defense because you’ve already
    decided he’s guilty but strange enough to argue that he
    should go to jail for 30 years instead. You may hear
    some testimony that he was using illegal drugs, not to
    forgive him because you decided he did it but as
    mitigating factors to argue that he should do 30 years
    instead of life. Can you make that weighing process?
    A.   Yes, I think so, sure.
(JA48-50.) The prosecutor then asked Vladyka:
    Q. Were you surprised to hear what kind of case it
    was?
    A.   Yes.
    Q. And your thoughts up until then were that you
    individually were opposed to the death penalty; is that
    correct?
    A.   Yes.
    Q. Knowing that that’s your feeling, do you really
    think you’d be able to sit and listen to the evidence if
    we get to the penalty phase, listen to the evidence and
    give the State a fair shot? In other words, would you be
    able to consider imposing the death penalty?
    A.   I guess so.
    Q. So your feelings aren’t that strong that it would
    prevent you from —
    A.   No, not really, either way.
    Q. Because it’s not going to be a hypothetical
    situation anymore. You’re going to be dealing with the
    life of a real human being. Can you make that weighing
    process and would you be able to say in open Court
    John Martini should get the death penalty?
    THE COURT:         If the facts warranted.
    Q.   If the facts warranted?
                                     9


    THE COURT:             And that’s what the jury found?
    A.       I don’t know.
    Q.       I know it is a hard question.
    A.       It’s a hard question.
    Q.       So you really can’t say?
    A.       Not really.
(JA51-52.)
  The public defender then sought to rehabilitate Vladyka:
    Q. The real question that we have to know is: Can
    you do both, having made the weighing process of
    aggravating and mitigating factors, are you capable in
    the proper circumstances to send John [Martini] to
    death row?
    A. I guess if everything was in place and I believed in
    it, I mean, you know it is hard to say yes or no.
    *    *    *
    Q. Let’s assume that there is no proof to some extent
    of mitigating circumstances, but there is proof only of
    aggravating circumstances. It’s a drastic example, but
    it is a possibility. Knowing that only aggravating
    circumstances are in and let’s say the law is and the
    judge tells you that if there is no proof of mitigating
    circumstances, you really have no decision as a juror
    and he should die, could you do that?
    A.       I guess so.
    Q. Okay. Now when you say “I guess so,” and that’s
    a problem. Does that mean yes, reluctantly yes?
    A.       Yes.
    Q. Knowing the man’s life is at stake, you have got to
    make a decision, you could could [sic] that?
    A.       I guess so, sure.
(JA52-54.)
  Finally, the Court asked:
                                 10


    THE COURT: If maybe you are the Foreperson, if he
    is the Foreperson, would you be able to announce that
    verdict in open court?
    A.       No.
    THE COURT:          Thank you, sir. I’m going to excuse you.
(JA54-55.)

                                 B.
  Vladyka’s responses to certain questions surely create
considerable doubt as to whether he could separate his
personal beliefs (his opposition to the death penalty) from
the task at hand. In response to the prosecutor’s question:
“Can you make that weighing process and would you be
able to say in open Court John Martini should get the
death penalty?,” Vladyka answered “I don’t know . . . it’s a
hard question.” (JA51-52.) Similarly, when asked: “are you
capable in the proper circumstances to send John [Martini]
to death row?,” he replied, “I guess if everything was in
place and I believed in it, I mean, you know it is hard to say
yes or no.” (JA53.) He also intimated that he could render
a decision only “reluctantly.” (JA53.)
   On the other hand, when asked: “Would you be able to
vote to impose the death penalty?” Vladyka answered, “Yes,
sir.” (JA47.) He also confirmed in at least six other places,
with various degrees of conviction, that he would be able to
engage in the weighing process and would be able to vote
for death if the facts warranted:
    Q.       Can you follow the law as the judge gives it to you?
    A.       Yeah, sure. (JA48-49) (emphasis added).
    *    *    *
    Q. You may hear some testimony that he was using
    illegal drugs, not to forgive him because you decided he
    did it but as mitigating factors to argue that he should
    do 30 years instead of life. Can you make that weighing
    process?
    A.       Yes, I think so, sure. (JA50) (emphasis added).
                                11


    *    *    *
    Q. [D]o you really think you’d be able to sit and listen
    to the evidence if we get to the penalty phase, listen to
    the evidence and give the State a fair shot? In other
    words, would you be able to consider imposing the
    death penalty?
    A.       I guess so.
    Q. So your feelings aren’t that strong that it would
    prevent you from —
    A. No, not really, either way.          (JA51)   (emphases
    added).
    *    *    *
    Q. Knowing that only        aggravating circumstances are
    in and let’s say the law    is and the judge tells you that
    if there is no proof of     mitigating circumstances, you
    really have no decision     as a juror and he should die,
    could you do that?
    A.       I guess so. (JA53) (emphasis added).
    Q. Knowing the man’s life is at stake, you have got to
    make a decision, you could could [sic] that?
    A.       I guess so, sure. (JA53-54) (emphasis added).
  The inevitable question is how to interpret the “I think
so’s” and the “I guess so’s,” which constitute the bulk of
Vladyka’s affirmative responses to the effect that he could
vote to impose the death penalty. If we were to translate
them into a solid “yes,” we might be constrained to say that
while Vladyka was impaired in his ability to follow the
Court’s instructions, he was not “substantially impaired,”
under the Witherspoon standard, and hence he should have
stayed on the jury. There are, however, two problems with
that analysis. First, the state trial judge, who saw and sized
up Vladyka, and who on one occasion had to ask him to
speak up, observed his frequent tentative responses and
was obviously of the view that “I think so” and “I guess so”
were not affirmative but equivocal. Under AEDPA that
evaluation is entitled to a very substantial deference.
Moreover, the exercise of line-drawing between impaired
                                  12


and substantially impaired seems highly tenuous under the
AEDPA standard of review.

                                  C.
  We note that Vladyka’s strongest statement of conviction
was only when the questions posed him posited that “he
had no choice.” See supra at 7. Immediately afterward,
however, in response to the prosecutor’s question whether
he would be able to vote for the death penalty, he was
entirely noncommittal:
     Q. Because it’s not going to be a hypothetical
     situation anymore. You’re going to be dealing with the
     life of a real human being. Can you make that weighing
     process and would you be able to say in open Court
     John Martini should get the death penalty?
     THE COURT:        If the facts warranted.
     Q.   If the facts warranted?
     THE COURT:        And that’s what the jury found?
     A.   I don’t know.
     Q.   I know it is a hard question.
     A.   It’s a hard question.
     Q.   So you really can’t say?
     A.   Not really. (JA51-52.)
  The trial judge’s estimate of Vladyka seems also to have
been informed by the stated unwillingness to announce the
verdict as foreperson in open court. We will assume that a
juror has no obligation to serve as foreperson. Alderman v.
Austin, 663 F.2d 558, 563 (5th Cir. Unit B 1981), reinstated
en banc, 695 F.2d 124 (1983).2 Indeed, a stated inability to

2. In Alderman, the prosecutor asked each prospective juror to describe
his or her views on capital punishment. Several indicated that they
would be able to impose the death penalty if warranted. The prosecutor
then asked those jurors whether, if called upon to act as foreperson,
they could sign their name to the verdict. Three jurors stated that
despite their willingness to vote for a death sentence in an appropriate
                                    13


read a guilty verdict in open court might simply reflect a
potential juror’s private nature or fear of making
controversial statements in public. That does not mean,
however, that the trial court could not consider it along
with the other indicia of Vladyka’s ability to follow the
court’s instructions.3 See, e.g., State v. Johnson, 22 S.W.3d
183, 187 (Mo. 2000); Isaacs v. State, 386 S.E.2d 316, 328-
29 (Ga. 1989).

                                    D.
  We do not gainsay that Martini has made a plausible
argument that, while Vladyka may have been somewhat
impaired in his ability to follow the Court’s instructions, he
was not “substantially impaired,” as Witherspoon requires.

case, they would not sign the verdict form. Based on these responses,
the state successfully moved to strike each of the three jurors for cause.
Id. at 562-63.
  The Fifth Circuit rejected the state’s argument that a juror’s
unwillingness to serve as a foreperson constituted a view on capital
punishment that would prevent or substantially impair the juror’s duties
under Witherspoon. Id. at 563. The Court noted that it knew of “no
Georgia law requiring any juror to serve, against his will, as foreman of
the jury in any case.” Id. Reviewing the record, the court found nothing
to suggest that the jurors would not apply the law as instructed, id., and
it therefore held that “[w]hether a venireman could sign, in good
conscience, a verdict that would result in a defendant’s execution is
immaterial to jury service under Witherspoon.”
  We note that Alderman was decided before the enactment of AEDPA
(and, for that matter, before the Supreme Court refined the Witherspoon
standard in Witt). After AEDPA, federal habeas courts owe greater
deference to the conclusions of state courts, and the relevant question is
how the state courts utilized Supreme Court, not circuit court, precedent.
See, e.g., Williams, 529 U.S. at 412; 28 U.S.C. § 2254(d). Because no
Supreme Court precedent addresses a potential juror’s unwillingness to
serve as the foreperson, the issues decided in Alderman, assuming they
were correctly decided at the time, might be resolved differently in a case
governed by AEDPA.
3. Under New Jersey procedure, if the jury were polled, something always
done in death penalty cases, Vladyka would have had to announce his
own verdict.
                              14


But we are constrained by our standard of review. We
cannot say by clear and convincing evidence that the state
trial judge, who saw Vladyka and doubtless “sized him up,”
was incorrect in his finding.
  The order of the District Court denying the petition for a
write of habeas corpus will therefore be affirmed.

 III.   The Trial Court’s Answer to the Jury’s Question
  We also granted a COA to consider “whether the trial
judge’s answer to a question for the jury during its penalty-
phase deliberations resulted in punishment imposed in
violation of the Eighth Amendment.” To succeed on the
claim, Martini would need to show that the state courts’
rejection of this claim “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)(1). See Williams, 529 U.S. at
407-11.
  At the penalty phase, the State sought to prove the
existence of two aggravating factors—that the murder of
Flax was committed for the purpose of escaping detection
and that the murder was committed in the course of
kidnapping. See N.J. STAT. ANN. §§ 2C:11-3(c)(4)(f), (c)(4)(g).
Martini sought to show the existence of five mitigating
factors, including that he acted under a diminished
capacity due to mental disease or intoxication. See N.J.
STAT. ANN. § 2C:11-3(c)(5)(d). In the course of his penalty-
phase case, Martini called two mental health experts, Diana
Aviv and Harvey Musikoff, in support of his argument. See
Martini, 619 A.2d at 1222. (Martini had also called a
psychiatrist, Daniel Greenfield, as a part of his diminished-
capacity defense in the guilt phase. See id. at 1220-21.)
During its penalty-phase deliberations, the jury sent a note
to the trial judge asking:
    (A) Are the expert witnesses’ written reports available
    or (B) are we only to consider their testimony for
    mitigating factors?
Id. at 1280. Over Martini’s objection, the trial judge
answered as follows:
                             15


    Ladies and gentlemen, [the written reports] are not
    available. Only those items that were admitted into
    evidence are available to you. You’ll have to rely on
    your recollection of the testimony with reference to
    what was contained in the reports.
    . . .
    [As to the testimony of the experts,] [t]hey were
    presented as far as Ms. Aviv, Dr. Musikoff, their
    testimony was presented to establish mitigating
    factors. You can utilize also Dr. Greenfield’s testimony
    if you see that supporting any mitigating factors. That’s
    what they were presented for and that’s how you’re to
    consider their testimony for those purposes.
Id. at 1281.
   Martini argued that the latter part of the trial court’s
response to the question erroneously limited his right to
have the jury utilize the experts’ testimony when
determining whether the two alleged aggravating factors
existed. The New Jersey Supreme Court concluded that the
trial judge’s response was “ambiguous” and, read in
isolation at least, “may have caused prejudice.” Martini, 619
A.2d at 1281. It noted that Martini was entitled under state
law to have the experts’ testimony used, inter alia, to
weaken the State’s case as to the aggravating factors and to
figure into the balancing of any aggravating factors against
any mitigating factors. Id. at 1282. Nevertheless, the court
concluded that, examining all of the penalty-phase
instructions as a whole, the trial court’s response did not
inhibit the jury’s ability to utilize fully the experts’
testimony in mitigation. Id.
   The Eighth and Fourteenth Amendments require that the
sentencer, in a capital case, “not be precluded from
considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the
circumstances of the offense that the defendant offers as a
basis for a sentence less than death.” Lockett v. Ohio, 438
U.S. 586, 604 (1978) (emphasis in original); see also Penry
v. Johnson, 532 U.S. 782, 797 (2001) (noting that the
question is whether the jury was able to “consider and give
effect to [a defendant’s mitigating] evidence”) (“Penry II”).
                             16


“However, the state may shape and structure the jury’s
consideration of mitigation so long as it does not preclude
the jury from giving effect to any relevant mitigating
evidence.” Buchanan v. Angelone, 522 U.S. 269, 276 (1998).
The standard for determining if the state has violated the
Eighth Amendment by precluding evidence asks whether
there is a “reasonable likelihood that the jurors . . .
understood the challenged instructions to preclude
consideration of relevant mitigating evidence proffered by
the petitioner.” Id. at 279 (quoting Boyde v. California, 494
U.S. 370, 386 (1990)). Martini argues that the trial judge’s
answer to the jury’s question about the experts’ reports
transgressed these principles.
   We agree with the New Jersey Supreme Court, as well as
the District Court, that the trial judge’s response to the
jury’s question was far from ideal. See Martini, 619 A.2d
1281; Martini, 188 F. Supp. 2d at 529. Certainly, in
isolation, the judge’s answer might reasonably have been
understood to limit the jury’s consideration of the experts’
testimony to the determination whether Martini could show
the existence of any mitigating factors. We note, in
particular, that the jury had been instructed in great detail
regarding how different categories of evidence—including
evidence submitted by Martini at the guilt phase as well as
evidence submitted by the State during rebuttal—could be
used in the penalty deliberations. (JA553-54.) In this
context, it is conceivable that the jury’s question
legitimately sought an answer regarding whether the
experts’ testimony, among all the different categories of
evidence, was to be used in determining mitigation,
aggravation, or both. If so, the trial judge’s response
incorrectly suggested that the testimony could not be used
to question whether the State had proved the existence of
any aggravating factor.
   A constitutional violation occurs under Lockett and Penry
II, however, only when the sentencer is “precluded from
considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the
circumstances of the offense that the defendant offers as a
basis for a sentence less than death.” Lockett, 438 U.S. at
604; see also Penry II, 532 U.S. at 797. Recognizing this,
                             17


the New Jersey Supreme Court concluded that any
misstatements of state law in the trial judge’s answer to the
jury’s question did not constitute constitutional error under
these applicable Supreme Court precedents. Martini I, 619
A.2d at 1281. We agree. There is no question that the
jurors were repeatedly told, clearly and correctly, (a) how to
find mitigating circumstances and (b) that they were free to
consider the experts’ testimony when determining the
existence of mitigating circumstances. See id. at 1282; see
also id. at 1281 (noting Martini’s concession, on direct
appeal, that he was relying on “a very refined distinction”).
Furthermore, as the New Jersey Supreme Court indicated,
the “disputed response to the jurors’ inquiry did nothing to
inhibit the proper use of mitigating evidence during the
process of weighing the aggravating factors found to exist
against the mitigating factors so found.” Id. at 1282. At
worst, the trial judge’s answer may have affected the jurors’
ability to consider the experts’ testimony when deciding
whether the State had made its case as to any aggravating
factors. Lockett and Penry II do not speak to that issue.
(Indeed, the Supreme Court has indicated that States are
free to “structure the jury’s consideration of mitigation so
long as it does not preclude the jury from giving effect to
any relevant mitigating evidence.” Buchanan, 522 U.S. at
276.) Given that, we cannot conclude that the state courts’
failure to extend Lockett and its progeny to this situation
“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)(1); see also Williams, 529 U.S. at 409-11.
  We also note that not a single juror found, as a
mitigating factor, that Martini’s crime had been committed
while his capacity to appreciate the wrongfulness of his
conduct was significantly diminished due to mental disease
or intoxication. Martini I, 619 A.2d at 1222; see also N.J.
STAT. ANN. § 2C:11-3(c)(5)(d). As the experts’ testimony was
universally unpersuasive on this issue, the issue which it
addressed most directly, we find it extraordinarily unlikely
that this testimony—assuming the jurors did not feel free to
consider it for that purpose—could have persuasively
undercut the State’s case in any way as to either of the two
aggravating factors. Indeed, once the case for diminished
                             18


capacity was rejected, the relationship between the
aggravating factors—whether the murder was committed in
the course of kidnapping or whether it was committed for
the purpose of escaping detection—and the experts’
testimony was more than a bit attenuated. We cannot
conceive that jurors who did not believe Martini acted
under a diminished capacity would have doubted that he
was able to form the intent necessary to commit his crime
to escape detection as a part of the kidnapping plan.
   We note as well that six jurors found the existence of the
so-called catch-all mitigating factor. See N.J. STAT. ANN.
§ 2C:11-3(c)(5)(h). To the extent, if any, that the experts’
testimony figured into these jurors’ determinations, no
harm could possibly have accrued to Martini. Even under
the jury instructions as he believes the jury understood
them, these six jurors were free to balance the mitigating
circumstance against the aggravating circumstances that
the jury had found. As a practical matter, we see little
difference between (a) a juror’s consideration of the experts’
testimony as rebuttal to the State’s case as to aggravating
factors and (b) a juror’s balancing, at a subsequent step,
this same testimony as mitigating evidence against those
same aggravating factors. (For the reasons given in the
preceding paragraph, we think that the remaining six
jurors, who did not find the existence of even the catch-all
factor, would not have been moved by the experts’
testimony even if they were discouraged from considering it
as rebuttal to the State’s case as to aggravating factors.)
Accordingly, we believe that even if any constitutional error
might be discerned in this case, it would be harmless
beyond a reasonable doubt. Brecht v. Abrahamson, 507
U.S. 619, 637 (1993); Marshall, 307 F.3d at 73 n.25 (noting
that the Brecht standard of harmlessness would apply in a
circumstance such as this).
   Finally, Martini criticizes the state courts as well as the
District Court for not addressing “the separate but closely-
related argument” that the trial judge’s answer caused a
violation of the rule of Skipper v. South Carolina, 476 U.S.
1 (1986). (Martini’s brief, 25.) We question whether Martini
fairly raised Skipper as a “separate but closely-related
argument” in the District Court. The case was not invoked
                             19


in the habeas petition itself and was referenced, in relation
to the claim about the jury’s question, only in a footnote of
the habeas memorandum (as simply an example of Lockett-
type error). (Habeas Memorandum, 117 n.31.) For that
reason, it was also arguably outside the scope of the COA
that we issued. See United States v. Garth, 188 F.3d 99,
105 n.7 (3d Cir. 1999) (noting that we do not normally
reach issues first pressed on appeal). At all events, Skipper
simply held that South Carolina erred by refusing to allow
a defendant to present certain mitigating evidence, the
testimony of witnesses who saw the defendant’s post-
incarceration behavior. Skipper, 476 U.S. at 8. It did not
hold that a defendant has a right not only to offer
mitigation evidence but also to have the jury consider that
evidence when determining whether the State has made out
a case for an aggravating factor. See id. at 4 (stating that
the question of the case was only whether the particular
evidence was mitigation evidence under Lockett). At all
events, even if Skipper stated some broader constitutional
rule than Lockett and Penry II, we would find any error
harmless for the reasons that we just recounted.

                     IV.   Conclusion
  For all the foregoing reasons, the order of the District
court denying Martini’s petition for a writ of habeas corpus
will be affirmed.
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Appendix
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A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
