                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-19-2008

Johnson v. Tennis
Precedential or Non-Precedential: Precedential

Docket No. 07-1968




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                                    PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              _____________

                   No. 07-1968
                  _____________

                GARY JOHNSON,

                                   Appellant

                          v.

 FRANKLIN TENNIS, SUPERINTENDENT; 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. No. 05-cv-00778)

   District Judge: Honorable Norma L. Shapiro
                   ____________

 Submitted pursuant to Third Circuit L.A.R. 34.1(a)
              on September 12, 2008
     Before: SLOVITER, FUENTES and ALDISERT,
                    Circuit Judges

                 (Filed November 19, 2008)

Cheryl J. Sturm, Esq.
387 Ring Road
Chadds Ford, PA 19317

       Counsel for Appellant

Joshua S. Goldwert
       Assistant District Attorney
       (Counsel of Record)
Thomas W. Dolgenos
Ronald Eisenberg
Arnold H. Gordon
Lynne Abraham
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107

       Counsel for Appellees




                 OPINION OF THE COURT


ALDISERT, Circuit Judge.


                               2
        This appeal by Gary Johnson from the denial of his
petition for habeas corpus by the District Court of the Eastern
District of Pennsylvania requires us to decide an issue of first
impression in this Circuit: Do the teachings of Bruton v. United
States, 391 U.S. 123 (1968), apply to a bench trial in a criminal
proceeding? Bruton and its progeny established that in a joint
criminal trial before a jury, a defendant’s Sixth Amendment
right of confrontation is violated by admitting a confession of a
non-testifying codefendant that implicates the defendant,
regardless of any limiting instruction given to the jury. See id.;
Richardson v. Marsh, 481 U.S. 200, 211 (1987); Cruz v. New
York, 481 U.S. 186, 193-194 (1987). We hold that the Bruton
rule is inapplicable to the incriminating confession of a non-
testifying codefendant in a joint bench trial. By its own terms,
Bruton applies to jury trials only. In so deciding we agree with
every United States Court of Appeals that has considered the
question.1 Because of this threshold determination, we easily
dispose of Johnson’s claims that he was denied the effective


       1
         See, e.g., United States v. Castro, 413 F.2d 891, 894-
895 & n.7 (1st Cir. 1969), cert. denied, 397 U.S. 950 (1970);
United States v. Cardenas, 9 F.3d 1139, 1154-155 (5th Cir.
1993); Rogers v. McMackin, 884 F.2d 252, 255-257 (6th Cir.
1989); United States ex rel. Faulisi v. Pinkney, 611 F.2d 176,
178 (7th Cir. 1979); Cockrell v. Oberhauser, 413 F.2d 256, 257-
258 (9th Cir. 1969); see also 21A Charles A. Wright & Kenneth
W. Graham, Jr., Federal Practice & Procedure § 5064.2, at 290
& n.5 (2d ed. 2005 & Supp. 2007).

                                3
assistance of counsel under Strickland v. Washington, 466 U.S.
686 (1984).2
       Our review is limited to those issues approved by this
Court in issuing a Certificate of Appealability: (1) whether
Johnson was denied the right to effective assistance of trial and
appellate counsel where trial counsel failed to litigate a motion
for severance under Bruton and appellate counsel failed to raise
the severance issue on appeal; (2) whether Johnson was denied
the right to effective assistance of trial counsel where trial
counsel failed to move the trial judge to recuse himself; and (3)
whether the Superior Court’s determination of these issues was
contrary to, or an unreasonable application of, United States
Supreme Court precedent.
       The merits of this habeas appeal are further
circumscribed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. §§ 2241-2254. When, as
here, the legal claims of a petitioner in custody pursuant to a



       2
         To establish constitutionally ineffective assistance of
counsel, a petitioner must show both that counsel’s performance
was so unreasonably deficient “that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment,” and that this deficient performance was so
prejudicial “as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland, 466 U.S. at 687. Review is
highly deferential and there is a strong presumption that
counsel’s conduct falls within the range of reasonable
professionalism. Id. at 689.

                               4
state court judgment have been adjudicated on the merits in state
court proceedings, under § 2254(d)(1) the “only question that
matters” is whether the adjudication of the claims “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.” Lockyer v. Andrade,
538 U.S. 63, 71 (2003); 28 U.S.C. § 2254(d)(1).
                               I.
       Because this appeal raises only questions of law, we set
forth a brief description of the facts in the margin.3 Appellant

       3
         Appellant Gary Johnson and co-conspirator Shawn
Davis arrived at the IPI Club, an after-hours nightclub,
sometime around 2:00 a.m. on January 21, 1991. At
approximately the same time, Alphonso Broadnax (the victim)
and Antoine DeLoach also arrived at the club. Shortly thereafter,
Johnson and DeLoach bumped into each other on the dance
floor and exchanged words. Both Broadnax and Davis
approached the altercation, but matters seemed to diffuse and
the parties parted ways.
       DeLoach and Broadnax subsequently decided to leave the
club fearing trouble between the parties upon witnessing a
separate altercation between Davis and another man. DeLoach
stopped at the restroom as Broadnax headed towards DeLoach’s
vehicle, parked across the street from the IPI Club. At
approximately the same time, witnesses Desiree Feaster, Sharon
Johnson, Michele Green and Vernell Washington were entering
Feaster’s car, parked by the IPI Club. The witnesses observed
Johnson and Davis in the same area. Washington additionally

                               5
Gary Johnson and co-conspirator Shawn Davis were found
guilty of second degree murder and criminal conspiracy after a
bench trial in the Common Pleas Court of Philadelphia. Each
gave conflicting statements to the police implicating the other.
Davis sought to suppress his statement but the state trial judge,
Judge Latrone, denied his motion. At the behest of Johnson’s
defense counsel, Judge Latrone did, however, order that the
statement be redacted prior to presentation to the court by
substituting an “X” in place of Johnson’s name.
       At the joint non-jury trial of both Johnson and Davis, also
held before Judge Latrone, the statement was only admitted
against Davis, not Johnson. The trial judge found Johnson guilty
of murder in the second degree and of conspiracy. At trial,
Johnson was represented by Bernard Turner. After attorney
Turner withdrew his appearance, attorney Louis Savino entered
his appearance and filed post-trial motions. These motions were
denied and Johnson was sentenced on February 9, 1995, to life
imprisonment for murder in the second degree and a concurrent
term of one to two years for criminal conspiracy.
       Following Johnson’s conviction, Judge Latrone wrote an



overheard a conversation between Johnson and Davis about
wanting to get “the guy with the money.”
       As Johnson and Davis passed Feaster’s vehicle, the
witnesses observed Davis holding a gun as he headed in the
direction of Broadnax, who was then about to enter DeLoach’s
vehicle. Davis shot the victim, Broadnax, five times.

                                6
extensive opinion in which he addressed the Bruton issue raised
by Johnson in post-trial motions, stating: “The primary
reasoning behind the Bruton Court’s decision was that there was
a tremendous risk due to the practical and human limitations of
a jury that it would or could not follow instructions to disregard
the prejudicial statements of a codefedant at a joint trial.”
Commonwealth v. Johnson, No. 3393, 3397, Feb. Term. 1991,
slip op. at 27 (C.P. Phila. Oct. 30, 1995) (Latrone, J.) (“Trial Ct.
Op.”). Judge Latrone explained that the teachings of Bruton
could not be applied to Johnson’s case because “this Court
presided over a trial without a jury” and that “the risks inherent
in the jury system of which the Bruton Court was so concerned
would seemingly not exist when a judge is sitting as a trier of
fact.” Id. at 28.
         On appeal, the Superior Court of Pennsylvania in a
memorandum disposition adopted the trial court’s opinion “in its
entirety and affirm[ed] on the basis of the opinion of the trial
court.” Commonwealth v. Johnson, No. 3264, slip op. at 3 (Pa.
Super. Ct. August 19, 1998); Commonwealth v. Johnson, 727
A.2d 412 (Pa. Super. Ct. 1998). Similarly, on a subsequent
appeal from the Common Pleas Court denying Johnson’s
petition for post-conviction relief, the Superior Court in a
memorandum disposition adopted in full several pages of the
post-conviction judge’s opinion explaining that the teachings of
Bruton could not apply because the stated rationale of the
United States Supreme Court limited its application only to jury
trials in criminal cases. Commonwealth v. Johnson, No. 3264,
slip op. at 5-9 (Pa. Super. Ct. April 13, 2004); Commonwealth

                                 7
v. Johnson, 852 A.2d 1248 (Pa. Super. Ct. 2004).
                               II.
        The Bruton rule is inapplicable to the incriminating
confession of a non-testifying codefendant in a joint bench trial
because Bruton applies solely to jury trials. In so deciding, we
join the myriad Courts of Appeals that have recognized that the
rule and rationale of Bruton do not apply to bench trials.4 See,


       4
        The basis of Bruton was that even a carefully instructed
jury cannot be expected to disregard completely the
incriminating confession of a non-testifying codefendant:

       [T]here are some contexts in which the risk that
       the jury will not, or cannot follow instructions is
       so great, and the consequences of failure so vital
       to the defendant, that the practical and human
       limitations of the jury system cannot be ignored.
       Such a context is presented here, where the
       powerfully incriminating extrajudicial statements
       of a co-defendant, who stands accused side-by-
       side with the defendant, are deliberately spread
       before the jury in a joint trial. Not only are the
       incriminations devastating to the defendant but
       their credibility is inevitably suspect, a fact
       recognized when accomplices do take the stand
       and the jury is instructed to weigh their testimony
       carefully given the recognized motivation to shift
       blame onto others. The unreliability of such
       evidence is intolerably compounded when the

                               8
e.g., Castro, 413 F.2d at 895 n.7 (“A jury may have difficulty in
disregarding extrajudicial statements implicating a defendant.
We will not presume that a judge suffers from the same
disability. Indeed, the presumption is to the contrary.”);
Cardenas, 9 F.3d at 1154 (“Nothing in Bruton, or in later
Supreme Court cases discussing Bruton, suggests that in a bench
trial a judge is incapable of disregarding inadmissible
extrajudicial statements implicating a defendant.”); Rogers, 884
F.2d at 257 (“To apply Bruton to bench trials would be to
conclude that judges, like jurors, may well be incapable of
separating evidence properly admitted against one defendant
from evidence admitted against another.”); Faulisi, 611 F.2d at
178 (Bruton “is simply inapplicable in the case of a bench
trial.”); Cockrell, 413 F.2d at 258 (“The Bruton rule does not
apply to [petitioner] because she was tried by the court and not
by a jury. Nothing in Bruton suggests that a judge is incapable
of applying the law of limited admissibility which he has
himself announced.”); see also 21A Charles A. Wright &
Kenneth W. Graham, Jr., Federal Practice & Procedure §


       alleged accomplice . . . does not testify and cannot
       be tested by cross examination.

Bruton, 391 U.S. at 135-136. See also id. at 137 (“[I]n the
context of a joint trial we cannot accept limiting instructions as
an adequate substitute for petitioner’s constitutional right of
cross-examination.”).


                                9
5064.2, at 290 & n.5 (2d ed. 2005 & Supp. 2007) (“[B]ecause
Bruton seeks to protect the defendant against the inability of the
jury to understand or abide by limiting instructions, the Bruton
doctrine does not apply in cases tried to the court.”).
        We also join the Cardenas and Rogers courts in rejecting
the notion that Lee v. Illinois, 476 U.S. 530 (1986), expanded
the Bruton doctrine to encompass bench trials. Lee dealt with
whether a state trial judge’s reliance upon a codefendant’s
incriminating pre-trial confession in a bench trial violates the
right to confrontation, not, as in Bruton, whether the mere
admission of such a confession is a violation. Id. at 531. The
Court accordingly observed that Lee was “not strictly speaking
a Bruton case.” Id. at 542. Bruton, the Court explained, was
based “on the fact that a confession that incriminates an
accomplice is so . . . ‘devastating’ that the ordinarily sound
assumption that a jury will be able to follow faithfully its
instructions could not be applied.” Id. In contrast, in Lee the
question was not whether the judge had been able to disregard
the evidence, but whether the judge’s actual use of the
incriminating confession was permissible; the Court concluded
that it was not.
        The holding of Lee is thus distinguishable from, and does
not expand the reach of, Bruton. “[A]bsent an express reliance
by a trial judge on a non-testifying defendant’s pre-trial
confession--which facially implicates a co-defendant--in
determining that co-defendant’s guilt, we do not see how a Sixth
Amendment confrontation issue can arise in a bench trial. No
such express reliance exists in the instant case.” Cardenas, 9

                               10
F.3d at 1155. See also Rogers, 884 F.2d at 257 (“Lee simply did
not make Bruton applicable to bench trials.”).
                                III.
       Because Bruton does not apply to a bench trial, Johnson
cannot have been deprived of any constitutional right based on
Bruton. Accordingly, trial counsel was not ineffective for failing
to make a pretrial motion for severance after the redacted
statement of Johnson’s non-testifying codefendant was admitted
into evidence, and the Pennsylvania Superior Court’s
adjudication of this issue was not contrary to, or an unreasonable
determination of, Supreme Court precedent.
       The Superior Court reasonably and correctly rejected the
application of Bruton to Johnson’s joint bench trial, therefore
eliminating any argument that trial counsel should have moved
for severance to avoid constitutional problems under Bruton.
The Superior Court adopted in full the trial court opinion by
Judge Latrone, which stated that “the risk of prejudice that
comes with the admission of a non-testifying codefendant’s
confession at a joint trial is greatly reduced, if not eliminated,
when the case is tried before a judge sitting without a jury.”
Trial Ct. Op. at 30. Judge Latrone explained that he disregarded
the codefendant’s statement in determining petitioner’s guilt,
and that the trial court “predicated its decision solely on the
properly admitted statement of Johnson and the other directly
relevant evidence presented by the Commonwealth” and “was
unaffected by the statement of the codefendant which it knew
was inadmissable against him.” Id. at 30-31.
       We dismiss Johnson’s contentions that severance would

                               11
have eliminated the complaint that Davis’s confession was not
properly redacted and that the Superior Court acted contrary to
established federal law by failing to address Gray v. Maryland,
523 U.S. 185 (1998), in its affirmation of conviction. The
Supreme Court in Gray, in a decision decided six months prior
to the Superior Court’s affirmation of Johnson’s conviction,
established that redactions in a Bruton case that replace a proper
name with a symbol, or similarly signify to the jury the fact of
redaction, are similar enough to unredacted confessions to
violate the Confrontation Clause. The inapplicability of Bruton
to bench trials, however, renders the question of whether
Davis’s statement was properly redacted under Bruton and Gray
a nonissue.
        It further is highly unlikely that the trial court would have
granted a severance at petitioner’s trial given the strong interest
courts have in maintaining joint trials. See id. at 209 (“Joint
trials play a vital role in the criminal justice system[.]”). Public
interest in judicial economy favors joint trials where, as in
Johnson’s case, the same evidence would otherwise be presented
at separate trials of defendants charged with a single conspiracy.
United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991).
Johnson nevertheless contends that “[i]f [his] trial attorney had
requested a severance, and if the severance had been granted,
there was a ‘reasonable probability’ the Commonwealth would
have dropped the charges against Johnson for lack of evidence.
Otherwise, there was a ‘reasonable probability’ of an acquittal
because the evidence against Johnson was practically non-
existent.” Appellant’s Br. at 27. This argument not only borders

                                 12
on, but is truly ridiculous. The Superior Court reasonably found
that the evidence against Johnson was substantial, and the
Superior Court’s rejection of an ineffective assistance claim
based on failure to move for severance pursuant to Bruton was
reasonable under, and not contrary to, established federal law.
                               IV.
        It follows that Johnson’s derivative claim of ineffective
assistance of appellate counsel also fails. The Superior Court’s
adjudication of Johnson’s claim that appellate counsel was
ineffective for failing to contend on appeal that trial counsel was
ineffective for failing to move for severance, cannot be
considered contrary to, or an unreasonable determination of,
Supreme Court precedent. The Supreme Court has repeatedly
admonished that appellate counsel need not, and should not,
raise every non-frivolous claim, but rather may select from them
in order to maximize the likelihood of success on appeal. Smith
v. Robbins, 528 U.S. 259, 288 (2000). Indeed, an appellate
lawyer’s exercise of professional judgment in omitting weaker
claims is obviously of benefit to the client: the more claims an
appellate brief contains, the more difficult for an appellate judge
to avoid suspecting that “there is no merit to any of them.”
Ruggero J. Aldisert, The Appellate Bar: Professional
Responsibility and Professional Competence–A View From the
Jaundiced Eye of One Appellate Judge, 11 Cap. U. L. Rev. 445,
458 (1982).
       Here, there was minimal likelihood of success on an
ineffective assistance claim based on trial counsel’s failure to

                                13
move for severance. It is far-fetched to contend that on direct
appeal the state courts would have found that trial counsel was
constitutionally ineffective for failing to move for severance
under Bruton, a constitutional rule inapplicable to bench trials.
Furthermore, the Superior Court determined on direct appeal
that Johnson was not prejudiced by the trial judge’s non-recusal
(see infra Part V). As the Superior Court concluded on
Johnson’s post-conviction appeal, this determination is flatly
inconsistent with Johnson’s contention that, in the same appeal,
the Superior Court would have held that Johnson was prejudiced
by trial counsel’s failure to seek severance as a result of the trial
judges’s same pre-trial exposure to Davis’s statement. Given the
weakness of Johnson’s ineffective assistance of trial counsel
claim, it would be difficult to consider appellate counsel
unreasonably deficient for failing to raise it.
                                 V.
       Finally, Johnson was not denied the right to effective
assistance of trial counsel where trial counsel failed to move the
trial judge to recuse himself, and the Superior Court’s
determination of this claim was not contrary to, or an
unreasonable application of, clearly established federal law.
        Johnson’s contention is based on the trial judge’s
participation in a suppression hearing prior to the joint bench
trial. Prior to trial, Judge Latrone acknowledged before the
parties and their counsel that he had been exposed to some
evidence in Johnson’s codefendant’s pre-trial motion to
suppress, but he indicated he did not remember exactly what that

                                 14
evidence was. After codefendant Davis’s counsel reminded him
that it was Davis’s statement to the police that had been
presented for suppression, Judge Latrone, in the presence of
Johnson, provided Davis with a thorough explanation of his
right to request the judge to recuse himself. Judge Latrone then
received Davis’s waiver of recusal. Then the judge stated
directly to Johnson that in Johnson’s case there should be no
problem because he had been the pre-trial judge in Davis’s case
but not Johnson’s case.
        Given that Johnson heard the trial judge explain a
defendant’s right to request recusal and Johnson did not
thereafter express concern to the trial court about proceeding to
trial with the same judge who presided over that motion to
suppress, it was reasonable for his counsel not to ask for recusal
of the trial judge. Indeed, in an evidentiary hearing on Johnson’s
post-trial motions, his trial counsel stated that he strategically
chose not to request recusal because he “felt that [Johnson’s]
best opportunity for a fair trial would have been with this judge
who heard the evidence and was experienced to sift [through it]
and give my client a fair trial.” App. 299-300. We grant great
deference to counsel’s choice of trial strategy. Strickland, 466
U.S. at 689.
        Furthermore, even if a recusal motion had been made and
granted, recusal of Judge Latrone would not have removed the
evidence from the case: the same redacted statement would have
been presented to any presiding judge. It thus would have been
fruitless to make a motion for recusal in the hope that the new


                               15
judge would somehow not hear the redacted statement that
previously had been ruled admissible. Counsel cannot be found
ineffective for failing to bring meritless motions. See United
States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).
                          ******
       For the foregoing reasons, the order of the United States
District Court for the Eastern District of Pennsylvania denying
Johnson’s petition for writ of habeas corpus will be affirmed.




                              16
