John Charles LESKO, Appellant,
v.
Joseph LEHMAN, Commissioner of the Pennsylvania Department
of Corrections; Charles Zimmerman, Superintendent of the
State Correctional Institution at Graterford; Joseph P.
Mazurkiewicz, Superintendent of the State Correctional
Institution at Rockview; James J. Haggerty, General Counsel
of Pennsylvania; and Ernest D. Preate, Jr., Attorney
General of the Commonwealth of Pennsylvania, Appellees.
No. 90-3295.
United States Court of Appeals,
Third Circuit.
Argued Oct. 10, 1990.
Decided Feb. 11, 1991.
Rehearing and Rehearing In Banc Denied March 11, 1991.
Welsh S. White (argued), Pittsburgh, Pa., Rabe F. Marsh, III, Greensburg, Pa., for appellant.
Robert A. Graci (argued), Chief Deputy Atty. Gen., Appeals & Legal Services Section, Office of Atty. Gen. of Pennsylvania, Harrisburg, Pa., John W. Peck, Asst. Dist. Atty., Sp. Deputy Atty. Gen., Office of Dist. Atty., Greensburg, Pa., for appellees.
Before HIGGINBOTHAM, MANSMANN and COWEN, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
Appellant John Charles Lesko was convicted and sentenced to death by the Westmoreland County Court of Common Pleas for the murder of Leonard Miller, an officer of the Apollo, Pennsylvania police department. This is the second appeal involving Lesko's petition for a writ of habeas corpus. On July 27, 1989, we reversed the district court's issuance of the writ, holding that Lesko was not deprived of a fair trial by the introduction at trial of evidence of his role in the prior murder of William Nicholls. We remanded for consideration of Lesko's other habeas claims. Lesko v. Owens,
We now hold that the district court erred in failing to hold an evidentiary hearing on Lesko's claim that the introduction of evidence of his guilty plea to the Nicholls murder at the penalty phase of his trial violated his due process rights. We also hold that the jury's sentencing determination was tainted by improper prosecutorial comments during the penalty phase. Accordingly, we will reverse and remand to the district court for the issuance of a conditional writ of habeas corpus insofar as Lesko's death sentence is concerned. We will affirm the dismissal of the petition insofar as Lesko challenges the jury's guilty verdict, as we find no errors of constitutional significance in the determination of Lesko's guilt.
I. BACKGROUND AND PROCEDURAL HISTORY
In our prior opinion, we summarized the facts underlying Lesko's conviction and death sentence.
In the early hours of January 3, 1980, John Lesko, Michael Travaglia and Richard Rutherford were cruising the outskirts of the city of Pittsburgh in a stolen sports car. The trio drove past police officer Leonard Miller, sitting in his patrol car parked at the side of the road outside the Stop-and-Go convenience store. Travaglia, the driver of the car, stated that he "wanted to have some fun with this cop." Travaglia raced past the officer's car beeping his horn, but no pursuit followed. Travaglia turned the car around, again sped past the patrol car, and again failed to elicit a response. The third time Travaglia sped past, Officer Miller turned on his lights and gave chase. Lesko turned to Rutherford in the back seat and cautioned him to "lay down in the back, because it might turn into a shooting gallery."
A moment later, Officer Miller managed to force the sports car off the side of the road. The officer approached the car on foot. Travaglia rolled down his window, extended his .38 caliber hand gun, and shot Officer Miller twice from close range. Officer Miller returned fire, shattering the passenger side of the window. The three companions sped away. The gunshot wounds Officer Miller received proved fatal.
The trio had begun their escapade together a few hours earlier, in the late evening of January 2, 1980, at a hot dog shop in Pittsburgh. At Travaglia's instruction, Lesko and Rutherford went to the alleyway behind the Edison Hotel, and waited. About ten minutes later a sports car appeared. Travaglia sat in the front seat beside the driver and owner of the car, William Nicholls, a stranger. While Lesko and Rutherford were climbing into the back seat, Travaglia pulled out a .22 caliber hand gun and shot Nicholls in the arm.
After Travaglia took the driver's seat, Lesko told Rutherford to handcuff Nicholls behind the back. As Travaglia drove, Lesko repeatedly punched Nicholls in the face and chest, calling him a queer. Lesko asked Nicholls if he wanted to perform oral sex on him, and taunted him with a knife. Meanwhile, Lesko took Nicholls's belongings, a wallet and an extra set of keys, and told Rutherford to place them in the glove compartment. After Nicholls lost consciousness, Rutherford and Lesko gagged him with a scarf. Travaglia stopped the car near a lake in a wooded area. Lesko propped Nicholls against a nearby tree, his hands cuffed, his mouth gagged, and his feet bound with a belt. Travaglia and Lesko dragged Nicholls down to the lake and rolled him into the water, where he disappeared.
The three men drove to Travaglia's father's house, where Travaglia knew his father kept a gun. Lesko and Rutherford waited in the car while Travaglia entered the house. Travaglia returned with a .38 caliber handgun, which he handed to Lesko. Upon inspection, Lesko discovered that it contained only bird shot. Travaglia, who had begun driving away, turned the car around and returned to his father's house. Travaglia instructed Rutherford to retrieve the box of bullets lying in the trunk of the car parked inside the garage. Lesko stood guard outside. Armed with the gun that had wounded Nicholls, Lesko warned Rutherford that if anything went wrong, Rutherford "had six shots to get out." Rutherford returned with the box of bullets, and the trio drove off. It was these bullets that killed Officer Miller.
After the Miller shooting, Lesko and Travaglia returned to Pittsburgh. At the hot dog shop they met a friend, Keith Montgomery, whom they took to a room in the Edison Hotel and told about the Miller shooting. Travaglia told Montgomery, "I shot a cop." Lesko added, "I wanted to." Travaglia then gave Montgomery the .38 caliber gun used to shoot Officer Miller. When the Pittsburgh police found Montgomery with that same gun later that evening, Montgomery told the police how he had gotten the gun, and that it had been used to shoot a policeman. Lesko and Travaglia were arrested that night. Before surrendering, Lesko pointed a gun at tSU21 After receiving Miranda warnings, Lesko and Travaglia each gave statements admitting involvement in the killing of Officer Miller. Lesko told the police that he and Travaglia had instigated the car chase with Officer Miller, "So he'd be chasing us ... and the car was fast and that--we'd lose him and could go and knock off the Stop-N-Go." In contrast, Travaglia told the police that he was "playing around with [Officer Miller], trying to aggravate him, and I figured he couldn't chase me across county lines; and since he did, I figured if I pointed the gun at him and told him to throw his gun away, he couldn't stop me and I could keep on going. In the process of pulling the gun on him, the hammer slipped and the shot discharged." Lesko and Travaglia also admitted killing William Nicholls.
Lesko,
After their capture, Lesko and Travaglia faced murder charges in the Court of Common Pleas of Indiana County for the Nicholls homicide and in the Court of Common Pleas of Westmoreland County for the Miller homicide. Lesko was represented at all relevant periods in the Indiana County proceedings by John Armstrong. He was represented throughout the Westmoreland County proceedings by his present counsel.
A. Indiana County Guilty Plea
On May 19, 1980, Lesko pled guilty in Indiana County to second degree murder. No written record of a plea agreement exists, but Armstrong and the Indiana County prosecutor stated at the plea hearing that Lesko's guilty plea was made with the understanding that the other charges related to the Nicholls murder would be dismissed and that sentencing on the murder charge would be delayed until "late June." Record of Guilty Plea Proceedings (May 19, 1980) at 32. Although the parties now disagree about the purposes underlying the agreement to defer sentencing, it is undisputed that, as a minimum, Armstrong and the prosecutor intended that sentencing be delayed until the conclusion of Lesko's trial in Westmoreland County.1 On December 3, 1980, before a sentence had been imposed, Armstrong filed a motion to withdraw Lesko's Indiana County guilty plea, stating that his client wished to stand trial for the charges related to the Nicholls homicide.
B. Westmoreland County Proceedings
In January 1981, Lesko and Travaglia were tried jointly in Westmoreland County for the Miller homicide. We have previously summarized the guilt phase of this trial.
At trial, Lesko and Travaglia's sole defense to the charge of first degree murder was that they each lacked the requisite intent to kill. Lesko's counsel argued principally that his client was at most guilty of felony-murder. He argued that in instigating the police chase, defendants planned first to divert the officer from the Stop-and-Go store, and later return to rob the establishment. Therefore, Lesko's lawyer urged, the killing was not pre-meditated, but was the unintended result of a botched robbery attempt. Travaglia's lawyer, meanwhile, emphasized that pulling the trigger had been accidental, a result of the hammer of the gun having slipped as Travaglia aimed at the officer. Neither defendant testified at the guilt phase of the trial. However, statements they made in their taped confessions to the police, which the Commonwealth introduced into evidence, were relied on by defense counsel in support of their respective defense theories.
Lesko,
Rutherford was the Commonwealth's principal witness at trial. Over defense objections, Rutherford testified about both defendants' roles in the abduction and killing of Nicholls and in the events surrounding the Miller homicide.
On January 30, 1981, the jury found Lesko and Travaglia guilty of murder in the first degree and criminal conspiracy to commit murder. Pursuant to the jury trial procedure specified in Pennsylvania's death penalty statute, 42 Pa.Cons.Stat. Ann. Sec. 9711(a), the trial then proceeded to its penalty phase. The prosecution introduced as a statutory "aggravating circumstance" the fact that defendants had pled guilty in Indiana County to the Nicholls murder.2 Counsel for both defendants objected to this testimony on the grounds that the Indiana County convictions were not "final" because sentences had not yet been imposed, and that both men had pled guilty with the understanding that their pleas could not be used against them in the Westmoreland County trial. Trial Transcript ("Tr.") at 1338-39. Lesko's counsel also objected on the basis of his client's still pending motion in Indiana County to withdraw his guilty plea. Tr. at 1404, 1427-29. The trial court denied counsel's motion for an evidentiary hearing on the status of that motion. Tr. at 1429.
Lesko introduced mitigating testimony from his mother, aunt, former girlfriend, and his former girlfriend's mother about his background and character. Tr. at 1627-49. He also provided testimony of a biographical nature. He testified that he never knew his father, and that his mother gave him up to an orphanage when he was seven or eight years old. When he was fourteen, he was returned to his grandmother. He recalled that he had attended a number of schools and was a "straight A" student in the eleventh grade, after which he enlisted in the Marine Corps. He served in the Marines from March 1976 until his administrative discharge in December 1978. He returned to the Pittsburgh area, where he "bounced from job to job." He testified that he first met Michael Travaglia in late November 1979. He was not asked about, and did not discuss, the events surrounding the Nicholls and Miller murders. The prosecutor did not cross-examine Lesko.3 Tr. at 1651-62.
On February 3, 1981, the jury returned death verdicts against both defendants. As to Lesko, the jury found both aggravating circumstances offered by the prosecution and further found that the aggravating circumstances outweighed the mitigating circumstances.
On direct appeal to the Pennsylvania Supreme Court, Lesko argued that the Commonwealth had breached the Indiana County plea agreement by introducing evidence of the plea as an aggravating circumstance. However, the Pennsylvania Supreme Court did not discuss this issue in its majority opinion and order affirming both defendants' convictions and sentences. Commonwealth v. Travaglia,
C. Indiana County Post-Guilty Plea Proceedings
On April 13, 1981, Armstrong filed an amended motion to withdraw Lesko's Indiana County guilty plea, asserting, inter alia, that an essential element of this plea agreement was "the Commonwealth's assurance that he would not be sentenced until after the trials in Westmoreland County. Implicit in this expressed promise by the Commonwealth was the fact that this plea in Indiana County couldn't be used in the trial or sentence in Westmoreland County."
The Indiana County court held a hearing on this motion on April 28, 1981. Lesko did not testify at this hearing. Armstrong also did not testify.4 However, during the hearing Armstrong argued that "implicit" in counsel's agreement to defer sentencing in Indiana County was the understanding that the plea would not be used against Lesko at the Westmoreland County trial. Record of Proceedings on Motion to Withdraw Guilty Plea (April 28, 1981) at 9. Armstrong also acknowledged that he believed that until sentence was imposed, Lesko's guilty plea did not constitute a "conviction" and thus could not be introduced at the Westmoreland trial. Id. at 6-7.5
On June 5, 1981, the court denied Lesko's motion to withdraw his guilty plea. It is evident from the court's "Finding of Facts" that its decision was based on its conclusion that the colloquy at the May 19, 1980 plea hearing embodied the entire plea agreement. The court found that "[t]he promise in the instant case was that the defendant's sentence for second degree murder would be delayed; there was no promise on behalf of the Commonwealth, nor request by the defendant, that evidence of the defendant's Indiana County guilty plea would not be used against him at other trials." Opinion and Order of the Court (June 5, 1981) at 7.
On appeal, the Pennsylvania Supreme Court affirmed Lesko's Indiana County conviction, holding that Armstrong was not ineffective for advising Lesko to plead guilty. The court also upheld the trial court's denial of Lesko's motion to withdraw the guilty plea. Commonwealth v. Lesko,
D. PCHA Proceedings
On April 15, 1985, Lesko filed in Indiana County a petition under Pennsylvania's Post Conviction Hearing Act ("PCHA"), 42 Pa.Cons.Stat. Ann. Secs. 9541-9551, alleging that Armstrong was ineffective for advising him that his guilty plea could not be used as an aggravating circumstance. On April 23, 1985, this petition was denied without a hearing on the ground that this issue had been determined in the direct appeal from the Indiana County conviction. Commonwealth v. Lesko, No. 35 Crim., 1980 (Indiana Co.Ct. Common Pleas April 23, 1985), appeal quashed as untimely,
Lesko also raised his guilty plea issue in a PCHA petition filed in Westmoreland County. The trial court convened a hearing on this petition on January 28, 1985, but rejected Lesko's proffer of testimony from Armstrong about his plea negotiations with the Indiana County district attorney and about his conversations with Lesko concerning the terms of the plea agreement. Post Conviction Hearing Proceeding Transcript (April 23, 1985) at 3-4, 7-14.6 The court specifically rejected counsel's attempt to raise the "new issue" of whether there was "an understanding between counsel and the basis of the defendant's plea [sic] that the guilty plea in Indiana County would not be introduced in Westmoreland County." Id. at 8. The court considered that the proffered testimony was irrelevant because the Westmoreland County court was not bound by the terms of the Indiana County plea agreement. The court also believed that the guilty plea issue was finally litigated in the direct appeal from the Indiana County conviction.
The Pennsylvania Supreme Court affirmed the denial of Lesko's Westmoreland County PCHA petition. Commonwealth v. Lesko,
E. Habeas Corpus Proceedings
On June 11, 1986, Lesko filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania. On May 2, 1988, the district court issued the writ, holding that Lesko's right to a fair trial was violated by the introduction of extensive evidence of Lesko's role in the Nicholls murder. Lesko v. Jeffes,
On remand, the district court referred the matter to a United States Magistrate, who filed a report and recommendation rejecting the balance of Lesko's habeas claims. On April 12, 1990, the district court approved and adopted the magistrate's report, dismissed the habeas petition, and granted a certificate of probable cause to appeal. This appeal followed.
We have subject matter jurisdiction under 28 U.S.C. Sec. 2254, and appellate jurisdiction under 28 U.S.C. Sec. 1291. This court has already determined that Lesko has exhausted his state court remedies. Lesko,
II. DISCUSSION
Lesko raises the following issues in this appeal:
1. Whether he is entitled to an evidentiary hearing on his claim that the introduction of his Indiana County guilty plea at the penalty phase of the Westmoreland County trial violated due process, because he had allegedly pled guilty with the understanding that his plea would not be used against him at trial;
2. Whether the exclusion for cause of a veniremember who expressed her personal opposition to the death penalty during voir dire violated Witherspoon v. Illinois,
3. Whether certain remarks in the prosecutor's closing argument in the penalty phase of the trial constituted an improper and inflammatory "appeal to vengeance";
4. Whether certain remarks in the prosecutor's closing argument in the penalty phase of the trial constituted an impermissible comment on Lesko's failure to testify on the merits of the charges against him;
5. Whether the trial court erred in instructing the jury that it should not consider sympathy in its penalty determination;
6. Whether the death penalty for Lesko, a non-triggerman accomplice to the murder of Officer Miller, is an unconstitutionally disproportionate penalty;
7. Whether the Pennsylvania death penalty statute is unconstitutional as applied because the jury is allowed to return a verdict on non-capital degrees of homicide (in this case, voluntary manslaughter) "even when there is no evidence to sustain such a verdict";
8. Whether the Pennsylvania death penalty statute is unconstitutional because it requires the defendant to establish the existence of mitigating circumstances by a preponderance of the evidence; and
9. Whether the trial court erred in allowing the jury to hear "gruesome details" of Lesko's role in the Nicholls homicide.
A. Scope of Review
We recently summarized the scope of our review of a district court decision which denies a habeas petition without a hearing.
Our scope of review is limited as we sit not to retry state cases de novo but rather to examine the proceedings in the state court to determine if there has been a violation of federal constitutional standards. Milton v. Wainwright,
Zettlemoyer v. Fulcomer,
Applying these standards, we conclude that the district court erred in failing to hold an evidentiary hearing on Lesko's guilty plea claim (Issue 1), and in rejecting his claims based on the prosecutor's closing argument. (Issues 3 and 4). We agree with the district court that there is no merit in Lesko's other claims.
B. Indiana County Guilty Plea
Lesko claims that the Commonwealth's use of his Indiana County guilty plea as an aggravating circumstance in the Westmoreland trial was a violation of due process, as he had pled guilty with the understanding that the plea would not be so used. He asserts that his understanding "stemmed directly and reasonably from statements made to him by his Indiana County counsel [John Armstrong] and that these representations played a material part in inducing his guilty plea." Appellant's Brief at 16.
Pursuant to the two-step analysis described above, we shall first determine whether Lesko's allegations, if true, describe a due process violation. We shall then discuss whether the district court erred in denying this claim without an evidentiarPH1H1. Due Process violation
We begin our first inquiry with a recognition that a counseled and voluntary guilty plea may not be collaterally attacked in a habeas corpus action. Mabry v. Johnson,
A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack.
United States v. Broce,
In this case, Lesko asserts that the introduction of his guilty plea at the penalty phase undermined the plea's voluntary character, as he had pled guilty with the understanding that the plea would not be so used. As he points out, a guilty plea which is induced by promises or threats from counsel that deprive it of its voluntary character is void. A conviction or a sentence which is based on an involuntary plea may be collaterally challenged. See Santobello v. New York,
A habeas petitioner faces a heavy burden in challenging the voluntary nature of his guilty plea, for the plea hearing is specifically designed to uncover hidden promises or representations as to the consequences of a guilty plea. As the Supreme Court stated in Blackledge v. Allison,
However, the Blackledge Court emphasized that while the record of a plea hearing is an "imposing" barrier to habeas relief, it is not "invariably insurmountable."
In administering the writ of habeas corpus ..., the federal courts cannot fairly adopt a per se rule excluding all possibility that a defendant's representations at the time his guilty plea was accepted were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for imprisonment.
Id. at 75,
A petitioner challenging the voluntary nature of a facially valid guilty plea on the basis of unfulfilled promises or representations by counsel must advance specific and credible allegations detailing the nature and circumstances of these statements. See Machibroda,
Lesko's specific and corroborated allegations, and the circumstances surrounding his guilty plea, satisfy this threshold standard. Lesko alleges that he "entered the Indiana County guilty plea with the understanding that a plea agreement had been entered into between [Armstrong] and the Indiana County prosecutor under which one of the terms of the plea was that Lesko's Indiana plea would not be used against him in the Westmoreland County prosecution." Appellant's Brief at 16. Although Lesko's Indiana County counsel has not yet been afforded the opportunity to testify concerning the plea negotiations, Armstrong has steadfastly maintained, in the state court proceedings and in an affidavit submitted at our direction,8 that he believed that he had a commitment from the Indiana County prosecutor not to use the guilty plea in the Westmoreland proceeding, and that he communicated this belief to Lesko.
Based on all of Lesko's and Armstrong's allegations, if true, it is clear that Lesko believed that the plea agreement included a "non-use" promise by the Indiana County prosecutor. A plea entered on that basis would not be voluntary, and a sentence based on such a plea may be collaterally attacked.9 See Blackledge v. Allison,
We therefore turn to our second inquiry: whether the district court erred in denying Lesko an evidentiary hearing on his guilty plea claim.
2. Necessity for Evidentiary Hearing
In Valenciano, a Sec. 2255 case, we stated that "[w]here the voluntariness of the plea is attacked with an assertion that one's counsel or the prosecutor, or both, made an out-of-court arrangement or 'proposition' as to the outcome of a sentence which differs from that pronounced by the court, an evidentiary hearing will ordinarily be necessary on a Sec. 2255 motion attacking the voluntariness of the plea."
(1) the merits of the factual dispute were not resolved at the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
Id. at 313,
The district court concluded that in the plea hearing itself, and in the hearing on Lesko's motion to withdraw his guilty plea, the state courts provided a "full record" on the facts underlying Lesko's present guilty plea claim, and thus an evidentiary hearing in federal court was unnecessary. Magistrate's Opinion at 9. We disagree.
Indisputably, there was no mention in the plea colloquy of the prosecutor's alleged commitment not to use Lesko's guilty plea against him in Westmoreland County. However, the plea colloquy does not negate the possibility that Lesko understood the prosecutor's alleged "non-use" agreement to be subsumed in counsels' explicit agreement to delay sentencing on the Indiana County murder charge. The later hearing on Lesko's motion to withdraw his guilty plea also did not constitute the requisite "full and fair" hearing on Lesko's voluntariness claim. It is clear from the transcript of this hearing, and from the characterization of the record by the state trial and appellate courts, that judicial review was restricted to the issue of the existence of an agreement not to use the Indiana plea at the Westmoreland trial. The state courts rested their determination that there was no such agreement mentioned in the plea colloquy itself or in the later testimony from the Indiana County prosecutor at the hearing on Lesko's motion to withdraw his plea. The courts never fully addressed, and did not finally resolve, the distinct issue of the voluntary nature of Lesko's plea.
On habeas review, the presumption of correctness of state court factfinding is inapplicable "if the merits of the factual dispute are not resolved at the state hearing. In such circumstances, the federal court must grant an evidentiary hearing to a habeas applicant." Sullivan,
C. Prosecutor's Closing Argument
Lesko did not testify during the guilt phase of the trial. At the penalty phase, he and his witnesses presented mitigating testimony concerning his deprived childhood and family background. Lesko did not testify as to the merits of the charges against him, and he was not cross-examined by the prosecution.
In their closing arguments in the penalty phase, defense counsel contended that the death penalty was cruel and ineffective as a deterrent to crime. Tr. at 1665-84. Lesko's counsel urged the jury to consider as mitigating circumstances his client's relatively passive role in the Miller homicide, his young age,11 and his troubled and impoverished upbringing. Tr. at 1668-73.
In his closing argument, the prosecutor made the following comments about Lesko's mitigating evidence concerning his background:12
Good character and record. All of the character witnesses limited their testimony to a certain period of time ... We heard about John Lesko up to a certain point.
And I want you to consider that. John Lesko took the witness stand, and you've got to consider his arrogance. He told you how rough it was, how he lived in hell, and he didn't even have the common decency to say I'm sorry for what I did. I don't want you to put me to death, but I'm not even going to say that I'm sorry.
Tr. at 1697.
At the conclusion of his remarks, the prosecutor urged the jurors to abide by their oaths to "follow the law" and not to act like "social activists." He then stated that he could not stop the jury from "show[ing] sympathy," adding:
So I'll say this: Show them sympathy. If you feel that way, be sympathetic. Exhibit the same sympathy that was exhibited by these men on January 3rd, 1980. No more. No more.
I want you to remember this: We have a death penalty for a reason. Right now, the score is John Lesko and Michael Travaglia two, society nothing. When will it stop? When is it going to stop? Who is going to make it stop? That's your duty.
Tr. at 1701-02.
Lesko challenges both of the above statements. He argues that the first remark was an impermissible comment on his assertion of his fifth amendment privilege against self-incrimination. He contends that the second comment constituted an "appeal to vengeance" that was "so calculated to inflame the jury and deflect it from its proper performance of its duty that it was in violation of due process of law." Appellant's Brief at 30.
The sentencing phase of a death penalty trial is one of the most critical proceedings in our criminal justice system. It is clearly the most critical legal proceeding from the standpoint of the defendant whose life is at stake. Because of the surpassing importance of the jury's penalty determination, a prosecutor has a heightened duty to refrain from conduct designed to inflame the sentencing jury's passions and prejudices. Justice Sutherland's oft-quoted statement about the unique role of a United States Attorney in criminal prosecutions generally applies with particular force to the prosecuting attorney in the penalty phase of a capital case.
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done ... He may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States,
We are particularly troubled by the prosecutor's comment about Lesko's failure to express remorse, but we believe that both remarks were improper. Considered cumulatively, the errors in the prosecutor's penalty phase argument were not harmless under Chapman v. California,
1. Comment on Failure to Express Remorse
Lesko asserts that the prosecutor's remarks about his failure to express remorse constituted a comment on his assertion of his fifth amendment privilege against self-incrimination, in violation of the rule of Griffin v. California,
We shall first examine the applicability of the Griffin rule to the circumstances before us, and then discuss whether the rule was violated in this case.
a. Applicability of Griffin
In Griffin, the Court held that the fifth amendment's self-incrimination clause bars a prosecutor from commenting to the jury on a defendant's failure to testify at trial. The Court reasoned that "comment on the refusal to testify is a remnant of the 'inquisitorial system of criminal justice,' which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly."
Without attempting to define the outer limits of the fifth amendment privilege in death penalty sentencing proceedings, we conclude that the Griffin rule is applicable in both the guilt and penalty phases of a death penalty trial. We further conclude that a capital defendant does not completely waive his Griffin rights by testifying at the penalty phase solely on mitigating factors that are wholly collateral to the merits of the charges against him.
Our first conclusion is mandated by the Supreme Court's decision in Estelle v. Smith,
discern no basis to distinguish between the guilt and penalty phases of the respondent's murder trial so far as the protection of the Fifth Amendment is concerned. Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental guarantees. Any effort by the state to compel respondent to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment.
Id. at 462-63,
Considering the Court's emphatic language in Smith v. Estelle, and its steadfast adherence to the essential principles of Griffin,13 we believe that Griffin's protections apply equally to the guilt and penalty phases of a death penalty trial.
Lesko provided testimony of a biographical nature at the penalty phase of his trial. Clearly, then, he could not claim a fifth amendment privilege against cross-examination or prosecutorial comment on matters reasonably related to his credibility or the subject matter of his testimony. See Harrison v. United States,
However, we do not believe that a defendant's penalty phase testimony about mitigating factors that are wholly collateral to the charges against him operates as a complete waiver of the defendant's self-incrimination privilege or his rights under Griffin. Under these circumstances, we believe that the Griffin rule forbids prosecutorial comment about the defendant's failure to testify concerning the merits of the charges against him.
This application of Griffin is consistent with the principle--which was well-established at the time of Lesko's trial, see Teague v. Lane,
Although counsel has not cited, and our research has not disclosed, any case that precisely addresses this issue, we believe that Calloway v. Wainwright,
the determination by the jury of the weight to be given to a confession is a collateral issue and such determination does not directly relate to the issue of guilt. Cf. Simmons v. United States,
In contrast to Calloway's testimony about the voluntariness of his confession,14 Lesko's penalty phase testimony about this childhood, family background, and schooling did not bear even a tangential relationship to the substance of the charges against him.15 We do not believe that Lesko's limited testimony constituted a waiver of his right under Griffin to be free from prosecutorial comment about his failure to testify about the merits of the prosecution's case.b. Violation of Griffin
Having concluded that Lesko retained the protection of the Griffin rule, we must now determine whether the challenged comments violated that rule, or whether, as the appellees assert, the prosecutor's statement was simply an appropriate reference to Lesko's demeanor at trial.
Our well-established test for determining whether a prosecutor's remark violates Griffin is " 'whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.' " Bontempo v. Fenton,
Under this test, the prosecutor's remarks constituted an impermissible comment on Lesko's failure to testify on the merits. The prosecutor asked the jury to consider Lesko's "arrogance" in taking the "witness stand" to present mitigating evidence about his background, without even having the "common decency to say I'm sorry for what I did." The prosecutor then parodied the gist of Lesko's testimony: "I don't want you to put me to death, but I'm not even going to say that I'm sorry." Tr. at 1697. To the jury, the natural and necessary interpretation of these comments would be that Lesko had a moral or legal obligation to address the charges against him--indeed, to apologize for his crimes--during his penalty phase testimony, and that the jury could and should punish him for his failure to do so.
We need not reach the broad question of whether, and to what extent, a defendant's demeanor is relevant to the sentencing determination in a death penalty case, because we do not consider that the prosecutor's comments in this case were a simple reference to demeanor. Fairly construed, the prosecutor's remark was a condemnation of Lesko's failure to testify about his role in the events surrounding the Miller homicide. Clearly, such testimony would have been self-incriminating. (It also would have almost certainly contradicted Lesko's steadfast position throughout the trial that he did not intend to kill Officer Miller, but was simply a passive observer to the shooting. See People v. Coleman,
2. "Appeal to Vengeance"
We believe that the conclusion of the prosecutor's closing argument was improper in two important respects. First, the prosecutor's comments were "directed to passion and prejudice rather than to an understanding of the facts and of the law." United States ex rel. Perry v. Mulligan,
In Drake v. Kemp,
[t]he ultimate power of the jury to impose life [imprisonment], no matter how egregious the crime or dangerous the defendant, is a tribute to the system's recognition of mercy as an acceptable sentencing rationale.... Thus, the suggestion that mercy is inappropriate was not only a misrepresentation of the law, but it withdrew from the jury one of the most central sentencing considerations, the one most likely to tilt the decision in favor of life.
Id. at 1460. Although the prosecutor's remarks in Drake were stronger and lengthier than the ones at issue here, the comments in this case were similarly calculated to incite an unreasonable and retaliatory sentencing decision, rather than a decision based on a reasoned moral response to the evidence.
Second, the prosecutor's suggestion that the jury had a "duty" to even the "score," which stood at "John Lesko and Michael Travaglia two, Society nothing," invited the jury to impose the death sentence not only for the Miller murder, but also for the Nicholls murder--a crime to which Lesko had already pled guilty, and for which he would be separately sentenced. As the appellees point out, the sentencing jury could properly consider a prior murder conviction as an "aggravating circumstance." 42 Pa.Cons.Stat.Ann. Sec. 9711(d)(10). However, the jury had no authority to impose the death penalty for the Nicholls murder itself. The prosecutor's suggestion that the jury had a "duty" to do so was clearly improper. See Rogers v. Lynaugh,
On habeas review of prosecutorial comments in state trials, we cannot rest with a determination that the remarks were undesirable or inappropriate, because "not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a 'failure to observe that fundamental fairness essential to the administration of justice.' " Donnelly v. DeChristoforo,
3. Harmless Error
In Chapman, the Supreme Court held that federal constitutional errors in criminal trials that are shown to be harmless beyond a reasonable doubt do not require reversal of the conviction. In Chapman, the inquiry into harmlessness was formulated as "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Id.
Although the death penalty is not an unconstitutionally disproportionate penalty in Lesko's case, see Section II.F., infra, the evidence before the sentencing jury was not so compelling or so overwhelming that we can declare with confidence that the prosecutor's "appeal to vengeance" and his improper reference to Lesko's failure to express remorse did not influence the jury's sentencing decision. Counterbalanced against the prosecution's aggravating evidence was significant mitigating evidence showing, inter alia, that Lesko's participation in the homicide was relatively minor, that he was a young man at the time of the offense, and that he had a deprived and troubled childhood. See 42 Pa.Cons.Stat.Ann. Secs. 9711(e)(4), (e)(7), (e)(8). The jury apparently credited at least some of Lesko's mitigating evidence, as it found that the aggravating circumstances "outweigh[ed]" the mitigating circumstances. Tr. at 1731-32.
The trial judge instructed the jury that it should base its penalty decision on the evidence, and not upon considerations of sympathy for either the defendants or the victim. Tr. at 1706. See Section II.E., infra. The judge also instructed the jury that "it is entirely up to a defendant whether to testify, and you must not draw any adverse inference from the fact that a defendant does not testify." Tr. at 1706. However, these instructions were neither immediate, see United States v. Dansker,
In sum, given Lesko's mitigating evidence, and considering the prosecutor's Griffin violation and "appeal to vengeance" in context, we conclude that the errors in the prosecutor's closing argument were not harmless.
D. Exclusion of veniremember
Lesko argues that the trial court's exclusion for cause of a veniremember who had expressed her personal opposition to the death penalty violated Witherspoon v. Illinois,
During her examination by the prosecutor, veniremember Esther Kroh, a seventy four year old woman, denied that she had "any conscientious scruples against imposing the death penalty," and stated that she could vote "either way" if the jury was called upon to determine whether to sentence the defendants to life imprisonment or to death. Jury Selection Transcript at 255-56. At the conclusion of his examination, the prosecutor stated that Ms. Kroh was "acceptable to the prosecution." Id. at 258.
Ms. Kroh's views on capital punishment were further probed during her examination by Travaglia's attorney.
Q: Well, let me ask this ma'am: as regards the death penalty, should the jury return a verdict against either one or both of these defendants for first degree murder, are your feelings about the death penalty such that if you had to make a decision as to whether to impose the death penalty or impose a sentence of life, simply because the victim in this case was a police officer, would you then irrespective of the other evidence that you heard vote automatically for the death penalty?
A: No sir, I'm opposed to the death penalty.
COUNSEL: This witness is acceptable to the defendant.
THE COURT: Are you saying under all circumstances, that irrespective of what evidence was given to you, because you are opposed to the death penalty, you could not participate in imposing the death penalty upon somebody, irrespective of what evidence was given to you?
A: Well, I am opposed, yes.
THE COURT: You're opposed to the death penalty?
A: Yes sir.
Id. at 260-61.
After counsel for both defendants stated that Ms. Kroh was acceptable as a juror, the prosecution moved that she be excused for cause, stating that her responses to defense counsel were "directly opposed" to the statements she had made to him. Id. at 261-62. The court granted this motion, ruling that "under the situation as observed and determined by this Court, this juror is not qualified to serve." Id. at 262.
The Supreme Court has never retreated from its essential position in Witherspoon that "[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror."
Turning to the present case, we conclude that the trial judge did not err in excluding Ms. Kroh for cause. Her statements on voir dire establish a likelihood that her opposition to capital punishment would have substantially impaired her ability to comply with the trial court's sentencing instructions. Although Ms. Kroh initially stated to the prosecutor that she would be willing to vote for the death penalty in a proper case, she later provided an ambiguous response to defense counsel's query about whether "irrespective of the evidence" she would "vote automatically for the death penalty" for a defendant convicted of murdering a police officer. Ms. Kroh then responded affirmatively to the court's inquiry about whether "under all circumstances" and "irrespective of [the] evidence" her opposition to capital punishment would prevent her from participating in a decision to impose the death penalty.
Construed reasonably, and with the requisite deference to the trial court's assessment of Ms. Kroh's demeanor, see Witt,
E. Anti-sympathy Instruction
Lesko contends that the trial court erred in giving the following instruction to the jury at the conclusion of the penalty phase of his trial.
Now, the verdict is for you, members of the jury. Remember and consider all of the evidence, giving it the weight to which you deem it is entitled. Your decision should not be based on sympathy, because sympathy could improperly sway you into one decision--into a decision imposing the death sentence, or could improperly sway you against the decision of imposing the death sentence. There is sympathy on both sides of that issue. Sympathy is not an aggravating circumstance; it is not a mitigating circumstance.
Tr. at 1706.
Lesko asserts that this "anti-sympathy" instruction impermissibly limited the jury's consideration of the mitigation evidence presented at the penalty trial concerning his childhood and family background, in violation of the holdings of Lockett v. Ohio,
Although Lesko's argument may be based on a plausible reading of Lockett and Eddings, we cannot consider those opinions on a clean slate. Lesko's challenge is foreclosed by two more recent Supreme Court decisions that have upheld substantially similar anti-sympathy jury instructions.
In California v. Brown,
In Saffle v. Parks, --- U.S. ----,
prevents the State from attempting to ensure reliability and nonarbitrariness by requiring that the jury consider and give effect to the defendant's mitigating evidence in the form of a "reasoned moral response," rather than an emotional one. The State must not cut off full and fair consideration of mitigating evidence; but it need not grant the jury the choice to make the sentencing decision according to its own whims or caprice.
Parks,
Lesko attempts to distinguish Brown and Parks on the basis of differences in the language of the challenged instruction in his case, but these are differences of form, not substance. The essential message of the present instruction is similar to that of the anti-sympathy instructions reviewed by the Supreme Court: that the sentencing determination should not be based solely on the juror's emotional sensitivities, but on their evaluation of the actual evidence concerning the crime and the defendant.21 Thus, the anti-sympathy instruction in this case passes constitutional muster.
F. Disproportionality
Lesko's defense at trial is that he willingly joined Travaglia and Rutherford on their mission to rob the convenience store, but that he was merely a passive and unwitting observer to Travaglia's shooting of Officer Miller. He was nevertheless convicted of first degree murder and criminal conspiracy to commit murder. Lesko argues that under Enmund v. Florida,
In Enmund, the petitioner was sentenced to death following his conviction for a murder committed during the course of a botched robbery. He was not present at the scene of the crime, nor was it shown that he intended to kill the victims. However, the record supported an "inference" that he was in a car at the time of the killings, waiting to help the robbers escape. Id. at 788,
The Supreme Court determined that the eighth amendment barred imposition of a death sentence in these circumstances, as the Florida procedure did not ensure that the penalty was reasonably related to the petitioner's "personal responsibility and moral guilt." Id. at 801,
The Court applied its Enmund holding in Tison v. Arizona,
The Supreme Court accepted the petitioners' assertion that there was no evidence showing that they did not " 'intend to kill' as that term has been generally understood in the common law." Id. at 150,
Enmund held that when "intent to kill" results in its logical though not inevitable consequence--the taking of human life--the Eighth Amendment permits the State to exact the death penalty after a careful weighing of aggravating and mitigating circumstances. Similarly, we hold that the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.
Id. at 157-58,
Although the Tison Court did not attempt to define the "particular types of conduct and states of mind warranting imposition of the death penalty," it held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." Id. at 158,
We conclude that the evidence of Lesko's personal involvement in the criminal episode culminating in the Miller homicide satisfies both elements of Tison's fact-bound inquiry. The record clearly establishes the first element--"major participation in the felony committed." Like the Tison brothers, and unlike Enmund, Lesko was "actively involved" and "physically present during the entire sequence of criminal activity" culminating in the homicide. Id. at 158,
The evidence concerning Lesko's role in the criminal episode surrounding the slaying of Officer Miller also satisfies Tison's second requirement that the defendant act with a "reckless indifference to human life." After the Nicholls murder, Lesko and Travaglia directed Rutherford to obtain the bullets that were later used to kill Officer Miller. In his post-arrest statement to the police, Lesko acknowledged that he and his companions sped past Officer Miller three times, at speeds up to ninety miles per hour, in order to "draw the cop's attention" so that he would be lured into chasing them. The trio hoped to "lose" Officer Miller during a high speed chase so that they could "go and knock off the Stop-N-Go." In their third and final attempt to goad Officer Miller into a pursuit, the men drove directly toward the police car, swerving only when they were "about three feet away from it." Id. at 611-12, 617-18. Rutherford testified that during the car chase, Lesko advised him to "lay down in the back, because it might turn into a shooting gallery." Id. at 371. There was no evidence to suggest that Lesko made any effort to dissuade Travaglia from pointing the gun at Officer Miller, or to aid the officer after the shooting. Lesko later told a friend, Daniel Keith Montgomery, that he also "wanted to" shoot Officer Miller.22 According to Lesko's post-arrest statement to the police, he and his companions escaped by driving some fifteen miles, and then fleeing on foot. Id. at 612, 618.
In our view, Lesko's active and substantial role in planning the armed robbery of the convenience store, his willing participation in the scheme to lure Officer Miller away from the store by means of a dangerous high speed car chase, and his obvious indifference to the risks that this conduct posed to the police officer, combine to establish a level of personal responsibility and moral guilt sufficient to satisfy the constitutional standards set forth in Enmund and Tison.
G. Jury discretion to consider voluntary manslaughter charge
The trial court instructed the jury on first, second, and third degree murder and voluntary and involuntary manslaughter as to both defendants. The court's voluntary manslaughter charge, which was given at the request of defense counsel, tracked the statutory definition of the offense as a killing without lawful justification committed while the actor is under a sudden and intense passion resulting from serious provocation. 18 Pa.Cons.Stat.Ann. Sec. 2503(a). Although the trial court believed that it was obligated to give the charge regardless of the evidence,23 the court also reasoned that a voluntary manslaughter charge might be supported on the theory that the Miller homicide "result[ed] from a negligent manner of doing a felonious act in the pointing of a deadly weapon at a police office making an arrest or attempting to make an arrest or stopping an individual...." Tr. at 1172-73.
Lesko now complains that the trial court introduced an impermissible level of arbitrariness into the jury's sentencing determination because it delivered a voluntary manslaughter instruction "even though there was no evidence that defendant was guilty of that charge." Appellant's Brief at 45. Citing Commonwealth v. Schaller,
Contrary to Lesko's characterization of the Pennsylvania law as "unequivocal," recent Pennsylvania decisions have eviscerated the rule enunciated in Commonwealth v. Jones that, regardless of whether the evidence supports such a charge, "a defendant under indictment of murder will be entitled, upon request, to have the jury advised of its power to return a verdict of voluntary manslaughter."
We nevertheless conclude that the trial court did not err in granting counsel's request for this instruction. As an initial matter, we agree with the observation of the Pennsylvania Supreme Court that "it would be anomalous to allow a defendant to request instructions on all degrees of homicide and then complain that the practice requires the vacating of his sentence of death because it introduces an element of arbitrariness into the process." Commonwealth v. Frey,
The former Pennsylvania practice in first degree murder cases of charging on lesser degrees of homicide, regardless of the evidence, is not analogous to the situation addressed in Roberts. Unlike Louisiana's mandatory death penalty law, Pennsylvania's death penalty statute provides adequate standards to guide the sentencing determination, and permits the sentencing jury to "consider and give effect to all mitigating evidence." Blystone v. Pennsylvania, --- U.S. ----, ----,
The non-mandatory nature of the Pennsylvania's death penalty, the jury's ability to consider the full range of mitigating evidence, the standards guiding the jury's sentencing discretion, and the meaningful state appellate review of death penalty cases fully meet the concerns expressed by the Roberts plurality about the potential for arbitrary results arising from an instruction on an unsupported non-capital verdict. Thus, the trial court's voluntary manslaughter instruction was not a constitutional error.
H. Defendant's Burden to Establish Mitigating Circumstances by a Preponderance of the Evidence
Lesko argues that Pennsylvania's death penalty statute is unconstitutional because it provides that "mitigating circumstances must be proved by the defendant by a preponderance of the evidence." 42 Pa.Cons.Stat.Ann. Sec. 9711(c)(1)(iii). However, the Supreme Court recently considered, and rejected, a similar challenge to Arizona's death penalty statute. In his plurality opinion in Walton v. Arizona, --- U.S. ----,
So long as a State's method of allocating the burdens of proof does not lessen the State's burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant's constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.
Id.
Under Pennsylvania's death penalty statute, the Commonwealth is not relieved of its burden to prove every element of the offense and to establish the existence of aggravating circumstances. Furthermore, the statute allows the sentencing jury to evaluate and give effect to the full range of relevant mitigating evidence. Blystone,
I. Admission of Evidence of Nicholls Murder
Lesko asserts that his due process rights were violated by the introduction of evidence at the guilt phase of his trial concerning the "gruesome details" of the Nicholls murder. He argues that this evidence was relevant only to establish "bad character," and not to show intent or motive. However, we have determined this issue adversely to Lesko in our prior decision, in which we held that the evidence of the prior crime was probative of intent and motive, and that it was not unduly prejudicial. We then noted that
given the probative value of Rutherford's testimony as to Lesko's motive to kill Officer Miller, and to refute his self-portrayal as a passive observer, we do not find that the prejudicial impact [of the evidence of the Nicholls murder] outweighs its probative value--no less that it does so in a manner so conspicuously as to rise to the level of a constitutional violation.
Lesko,
Because we are bound by the holding of the prior panel opinion,26 we must decline Lesko's invitation to reexamine this issue.
III. CONCLUSION
Given the lengthy and tortured procedural history of this case, and the emotional responses evoked by capital punishment cases generally and by this case in particular, a brief comment is appropriate on our decision to remand this case for additional proceedings.
Whatever views one might have on capital punishment, one must acknowledge that this intermediate appellate court is not the final arbiter of either the legality or morality of the death penalty. So long as this sanction remains in use, one must further concede that no rational purpose is served by drawn out and repetitive litigation that simply delays the ultimate resolution of death penalty matters. However, it also cannot be denied that the very nature of capital punishment demands a scrupulous inquiry into the adequacy of state court evidentiary hearings in death cases. The importance of this inquiry was well stated by the Supreme Court in Ford v. Wainwright,
In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. See, e.g., Spaziano v. Florida,
Although the condemned prisoner does not enjoy the same presumptions accorded a prisoner who has yet to be convicted or sentenced, he has not lost the protection of the Constitution altogether; if the Constitution renders the fact or timing of his execution contingent upon establishment of a further fact, then that fact must be determined with the high regard for truth that befits a decision affecting the life or death of a human being.
For the reasons stated in this opinion, we will reverse the judgment under review to the extent that it sustains the imposition of the death penalty. We will remand to the district court for the holding of an evidentiary hearing on the appellant's claim that his Indiana County guilty plea was not voluntary and for the subsequent issuance of the writ insofar as the death penalty is concerned.
We will direct the district court to issue the writ subject to the holding of a state court resentencing proceeding within a reasonable period of time to be set by the district court. If the district court determines, on the basis of the evidentiary hearing described in the last paragraph, that the appellant's Indiana County guilty plea was not voluntary, the writ shall be issued subject to the additional requirement that evidence of the guilty plea not be introduced at the resentencing proceeding.
We will affirm the judgment under review to the extent that it sustains the determination of appellant's guilt.
Notes
At the later hearing on Lesko's motion to withdraw his guilty plea, the prosecutor testified that "[o]n the day of sentencing Mr. Armstrong approached me and it is my recollection that he asked me if sentencing could be deferred until after the Miller trial in Westmoreland County. I didn't object to that." Record of Proceedings on Motion to Withdraw Guilty Plea (April 28, 1981) at 38
Under Pennsylvania's death penalty statute, conviction of a federal or state offense, "committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable," is an aggravating circumstance which may support the imposition of the death penalty. 42 Pa.Cons.Stat.Ann. Sec. 9711(d)(10)
Lesko does not dispute that the victim, Leonard Miller, was a "peace officer ... who was killed in the performance of his duties," 42 Pa.Cons.Stat.Ann. Sec. 9711(d)(1), which was the other aggravating circumstance established by the prosecution.
The trial court denied a request by Travaglia's attorney to cross-examine Lesko on Travaglia's "condition" during their acquaintance. Tr. at 1663
Armstrong was ethically barred from testifying, because he was representing Lesko at the time
In its decision in the direct appeal from the Westmoreland conviction, the Pennsylvania Supreme Court ruled that Armstrong's opinion as to the legal effect of the sentencing delay was incorrect. Travaglia,
See Lesko,
We conclude that in his direct and PCHA proceedings, Lesko exhausted his state court remedies for his present guilty plea claim
To clarify the record before us, we directed the appellant to submit an affidavit from Armstrong detailing his plea negotiations with the Indiana County prosecutor and his conversations with the appellant about the plea terms with Lesko. In the affidavit, Armstrong averred that in a May 19, 1980 meeting with the prosecutor (conducted in the presence of the President Judge of Indiana County, counsel for Travaglia, and others) he secured the prosecutor's agreement that Lesko "would plead guilty to 2nd degree murder with the understanding that the guilty plea in Indiana County would not be used in his Westmoreland County trial." Armstrong Affidavit at pp 1-5. Armstrong also stated:
Initially, one of the participants suggested that the way to implement the agreement was to defer the plea in the Indiana County case until after the trial in Westmoreland County
In response to this suggestion, someone expressed a concern about the time element, especially in view of the requirements of Rule 1100. [Pennsylvania's speedy trial provision]. They said deferring the plea was not desirable
After this suggestion, somebody said the way to implement the agreement of non-use was to have Lesko plead guilty now and defer sentencing until after the Westmoreland County trial had taken place. This was agreed to in chambers
The entry of the plea was assigned to Judge Earley. To the best of my recollection, Judge Earley was either present at the pretrial conference or advised of the agreement before the plea was entered. Given the extensive discussion regarding the point and purpose of the plea agreement which had transpired in the chambers of Judge Handler, the plea colloquy before Judge Earley was very brief. As the record of the colloquy indicates, I merely indicated that the agreement included the provision designed to implement the non-use agreement by stating that "the sentencing would be passed in late June." At the time, June was the expected trial date for the Westmoreland County case
I spoke to Lesko about the plea agreement on May 19, 1980. I told him that in exchange for a plea to second degree murder, the District Attorney would nolle pros the three (3) other criminal charges against him pending in Indiana County and that the Indiana County guilty plea would not be introduced at the subsequent Westmoreland County trial
Lesko understood the plea agreement set forth above and he agreed to plead guilty only on that basis
We recognize that this affidavit was not part of the record before the district court or state court. We cite it only for the purpose of clarifying Armstrong's already stated allegations regarding the circumstances surrounding the plea agreement.
However, we agree with Judge Cowen's observation in his prior dissent that under Brady v. United States,
Of course, such a hearing will not be necessary if, on remand, the Commonwealth represents to the district court that it will not introduce evidence of Lesko's Indiana County guilty plea at the resentencing proceeding in this case
Lesko was twenty one years old at the time of the Miller homicide. Tr. at 1670
Defense counsel objected to both of the above quoted comments. Tr. at 1718-21, 1723
See, e.g., United States v. Hasting,
The Calloway court noted that "[b]efore taking the stand appellant's attorney announced to the Court that appellant was testifying only as to the manner in which the confession was obtained. During the course of his testimony appellant stated at least three times 'I didn't do it.' "
Compare Tucker v. Francis,
While not directly analogous, Coleman and Owen are instructive, as both of those death penalty cases involve defendants whose trial testimony at the guilt phase was followed by prosecutorial comments at the penalty phase condemning the defendants' lack of remorse
The defendant in Coleman had testified at the guilt phase of his trial to deny that he planned or participated in the events leading up to the homicide. In his closing argument during the penalty phase, the prosecutor criticized Coleman's failure to admit guilt and show remorse. The California Supreme Court, per Chief Justice Traynor, held that the prosecutor's comments were improper. The court stated that although the sentencing jury "may properly consider the defendant's remorse or lack thereof in fixing the penalty," not "every inference bearing on the question of remorse may be urged upon the jury by counsel."
A defendant would be placed in an intolerable dilemma if his failure to confess following conviction could be urged at the trial on the issue of penalty as evidence of lack of remorse. To silence such argument, a defendant who had denied his guilt at the trial on the issue of guilt would have to admit or commit perjury at the trial on the issue of penalty, and he could do neither without in effect forfeiting his right to urge the trial court on motion for a new trial to reweigh the evidence on the issue of guilt. We conclude that any argument that failure to confess should be deemed evidence of lack of remorse is not permissible.
Cal.Rptr. at 920,
In Owen, the defendant, who testified in the guilt phase of his homicide trial in support of his theory of self-defense, was found guilty of voluntary manslaughter. He did not testify during the subsequent penalty phase of the trial. In his closing argument at the penalty phase, the prosecutor twice condemned the defendant's failure to say he was "sorry" for his crime.
On appeal, the court rejected the state's contention that because Owen had testified at the guilt phase, the prosecutor could properly comment on the appellant's failure to express remorse. The court observed that "[a]cceptance of the state's argument would place an accused in the paradoxical position of saying I am sorry for a crime of which I am not guilty."
We do not believe that the challenged remarks constitute a "fair response" to a claim made by Lesko or his counsel, see United States v. Robinson,
The Witherspoon Court stated that "[u]nless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that is his position." 391 U.S. at n. 9,
As we observed in our last opinion in this case, the jury instruction in Brown was "very similar to the one given the Lesko jury." Lesko,
Lesko is similarly situated, as his conviction became final for purposes of Teague v. Lane on June 18, 1984, when the Supreme Court denied his certiorari petition in his direct appeal of his Westmoreland County conviction.
Lesko points out that Justice O'Connor, whose vote was necessary to establish the five justice majority in Brown stated in her concurring opinion that, on remand, the state court should "determine whether the jury instructions, taken as a whole, and considered in combination with the prosecutor's closing argument, adequately informed the jury of its responsibility to consider all of the mitigating evidence introduced by the respondent."
Assuming arguendo that Justice O'Connor's concurrence limited the Brown holding, we believe that the jury instructions, taken as a whole, meet the concern expressed in her concurrence. The trial judge instructed the jury to consider all relevant statutory mitigating circumstances, including the catch-all factor of 42 Pa.Cons.Stat.Ann. Sec. 9711(e)(8)--"any other mitigating matter concerning the character or record of the defendant or the circumstances of his offense." Tr. at 1704. The judge later instructed the jury to "[r]emember and consider all of the evidence, giving it the weight you deem it is entitled." Tr. at 1706.
Montgomery testified that Travaglia and Lesko met with him in a hotel room to discuss the Miller homicide. The prosecutor elicited the following testimony from Montgomery concerning Lesko's statements
Q: All right now, when the three of you were in the room seated, what happened?
A: Michael Travaglia looked at me and said, Goddam, or Jesus Christ, I shot a cop.
Q: And John Lesko was present?
A: Yes, sir.
Q: And did he say anything?
A: Yes, sir.
Q: What did he say?
A: He said, I wanted to.
Q: I wanted to.
A: Yes.
Q: Did he say or do anything else?
A: Just kind of snickered like.
Q: He what?
A: Kind of snickered like.
Q: Laughed?
A: Ha ha, or something like that.
Tr. at 481-82.
In an in-chambers conference with counsel, the trial judge stated: "I have some difficulty in finding how voluntary manslaughter gets in the case; but the rules are that if I am requested to charge on voluntary manslaughter, I will do it." Tr. at 1146
See Commonwealth v. Frey,
In his Walton concurrence, Justice Scalia stated that because of the "irreconcilable conflicts" in the Supreme Court's jurisprudence on death penalty sentencing, he "will not, in this case or in the future, vote to uphold an Eighth Amendment claim that the sentencer's discretion has been unlawfully restricted."
Internal Operating Procedures of the United States Court of Appeals for the Third Circuit, Chapter 9.1