Marshall v. Hendricks

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

9-11-2002

Marshall v. Hendricks

Precedential or Non-Precedential: Precedential

Docket No. 00-9004

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Volume 1 of 3

PRECEDENTIAL

Filed September 11, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-9004

ROBERT O. MARSHALL,

Appellant

v.

ROY L. HENDRICKS*,

Administrator, New Jersey State Prison;

JOHN J. FARMER*, Attorney General,

State of New Jersey

*Caption amended per Court’s Order of 8/8/00

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 97-cv-05618)

District Judge: Honorable Joseph E. Irenas

Argued March 21, 2002

Before: BECKER, Chief Judge, ROTH and

RENDELL, Circuit Judges

(Filed: September 11, 2002)

Stephen W. Kirsch, Esq. [ARGUED]

Office of Public Defender

P.O. Box 850

Richard J. Hughes Justice Complex

25 Market Street

Trenton, NJ 08625

Counsel for Appellant

Robert E. Bonpietro, Esq. [ARGUED]

Office of Attorney General of

New Jersey

Department of Law & Public Safety

Division of Criminal Justice

Richard J. Hughes Justice Complex

P.O. Box 086

Trenton, NJ 08625

Counsel for Appellees

OPINION OF THE COURT

RENDELL, Circuit Judge.

Robert O. Marshall unsuccessfully appealed his sentence

of death in the New Jersey courts. He then sought habeas

corpus relief in the United States District Court for the

District of New Jersey, and having been denied relief there,

he has appealed to our court. For the reasons set forth

below, we will affirm the District Court’s orders as to all

claims regarding the guilt phase of Marshall’s trial, but we

will remand for further evidentiary development as to his

claim that his attorney was ineffective in the penalty phase.

I. Facts

Robert O. Marshall, a successful insurance salesman and

active member of the community in Toms River, New

Jersey, was convicted and sentenced to death in 1986 for

having hired someone to murder his wife, Maria, in order

that he might gain approximately $1.5 million in insurance

proceeds. During the months prior to his wife’s death,

Marshall had been involved in an affair with Sarann

Kraushaar, who, with her husband, belonged to the same

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country club as the Marshalls. Their affair had advanced to

the point that they had made plans to leave their respective

spouses, establishing a safe deposit box for joint assets and

preparing to lease a cottage together.

Marshall frequented the casinos in Atlantic City and

found himself burdened by debt. Within a year of Maria’s

death, Marshall purchased increasing amounts of

insurance on Maria’s life. On September 6, 1984, Maria

and her husband both were examined by a physician to

qualify for an additional insurance policy. That night, while

driving home from dinner and gambling in Atlantic City,

Marshall allegedly experienced trouble with a tire while on

the Garden State Parkway. He pulled into a darkened rest

stop area, and, after he had exited the car to examine the

tire, Marshall was hit on the head and Maria was fatally

shot. We will reprise the facts at some length as they

provide a necessary background for understanding much of

our analysis.

As police investigated, they uncovered numerous

telephone calls from Marshall to Louisiana, primarily to a

hardware store in Caddo’s Parish. An employee at the

hardware store, Robert Cumber, had attended a party in

Toms River where he met Marshall. As Marshall told the

story, during the course of the evening, he and Cumber

discussed insurance and financial instruments, and, at

some point, Marshall mentioned that he was seeking an

out-of-town investigator to track missing casino winnings

that he had given to his wife. He expressed his reluctance

to hire a local investigator, since Toms River was a small

community where news traveled quickly. After Cumber’s

return to Louisiana, Marshall mailed information on

financial products to him. Cumber also put Marshall in

contact with Billy Wayne McKinnon -- although McKinnon

did not use his real name in his dealings with Marshall,

using the name James (or Jimmy) Davis instead -- who

agreed to conduct Marshall’s investigation. Initially,

Marshall’s only contact with McKinnon was through

telephoning Cumber -- both at home and at the hardware

store. Even after Marshall and McKinnon met in person,

Cumber remained Marshall’s primary contact in Louisiana.

Marshall wired money to McKinnon -- again as Jimmy

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Davis -- on two occasions; McKinnon had a person whose

name really was Jimmy Davis sign for the money each time.

McKinnon traveled to Atlantic City to meet with Marshall

three separate times. The numerous telephone

conversations were, according to Marshall, following up on

the financial information sent to Cumber. According to

McKinnon, they were attempts to find out why it was taking

so long for McKinnon to murder Maria Marshall.

On September 21, 1984, investigators met with Marshall

in his home, and asked him whether he knew either James

Davis or Billy Wayne McKinnon from Shrevesport,

Louisiana. Marshall’s sister, Oakleigh DeCarlo and

Marshall’s son, Robert were present during this meeting,

which Marshall cut short by refusing to answer questions

on the advice of his attorney. On September 25, 1984,

Marshall admitted to Sarann Kraushaar that he had lied to

her about his Louisiana contacts -- he had previously told

her they were related to payments he had made on bets on

an NBA playoff game. Kraushaar then decided to end the

affair. Shortly thereafter, on September 27, 1984, Marshall

checked into a Best Western hotel, into the room that he

and Kraushaar had frequented. He telephoned each of his

sons, and he also prepared separate tapes for each son, his

secretary, and his brother-in-law, Joseph Dougherty, who

happened to be an attorney.1 He took the tapes addressed

_________________________________________________________________

1. Marshall played the tapes to his sons and his secretary during his

testimony; they contained no incriminating statements. The State played

the tape to his brother-in-law to the jury as part of its case, and, when

Marshall testified, he was cross-examined about the statements on the

tape.

In a rambling narrative, the Dougherty tape discussed Marshall’s

relationship with Kraushaar, including his plans to leave Maria, his

escalating debt that had spiraled to almost $200,000, and his concerns

that the police suspected his involvement in Maria’s murder because he

had hired McKinnon to find five or six thousand dollars that was

missing. Marshall also explained that Maria had hired an investigator

who had disclosed his affair to others. At one point in the tape, Marshall

stated, "The . . . thought that comes to mind is that if . . . anybody, who

knew about it . . . the attorney who he told who is a friend of mine, or

any of the people who the attorney told . . . if they had said something

to me, this entire thing would not have happened . .. because we

4

to his secretary and his brother-in-law to the front desk,

where he placed them in a container for outgoing mail. He

then added a large quantity of prescription sleeping pills to

_________________________________________________________________

wouldn’t have been in Atlantic City that night . . .. Worse than that, if

Maria had confronted me when she either wanted to or. . . sooner,

again, none of this would have happened." PCR Appeal, State Appendix,

Vol. 4 at PA573. Marshall stated that he was convinced that he would be

indicted, found guilty, and sentenced to death. Id. at PA574. Marshall

asked his brother-in-law to communicate his love for Maria and tell the

authorities that Sarann "was not involved in any way." Id. He also

instructed Dougherty as to how he wished certain items distributed.

Marshall discussed his desire that the two older boys continue at their

colleges, and be given spending money, and he expressed a hope that

the youngest would be able to finish out the year at the same high

school, and that he not live with Marshall’s in-laws, unless the in-laws

moved to Toms River. He also expressed a desire that his oldest son have

a new Mustang convertible to replace the current one, and that a used

Porsche be purchased for the youngest son when he turned 17. He

discussed his desire that he be buried with Maria, preferably at Saint

Joseph’s. He asked Dougherty to convey his love to several people. If

possible, he wanted the boys to retain the house.

Marshall also said that his sons were not aware of the "latest

developments." Id. at PA585. He then discussed details of hiring

McKinnon through Cumber as an investigator. He stated that he met

Cumber at his neighbor’s party in May. He admitted paying him $6300,

including $800 the night of Maria’s murder. He also admitted to calling

Cumber several times attempting to contact McKinnon. Marshall had

learned that Cumber and McKinnon had been indicted, and was

convinced that the third sealed indictment was for him. He characterized

the evidence against him as circumstantial, and asked Dougherty to

communicate to his older sons as much as he felt comfortable telling.

Marshall said, "I just feel that . . . that, plus the . . . life insurance, the

debt and Siran [sic], that, uh . . . it just .. . looks so bleak." Id. at

PA587. He closed with "I hate doing what I ha-- . . .what I’m going to do

. . . because of the boys. I know . . . how it’s gonna hurt them. So please

help them . . . . I know I don’t have to ask, I know you will . . . . And

help them, Joe . . . they’re good boys . . . . They don’t deserve this . . .

just like Maria didn’t deserve what happened, either. . . . But Joe, I

want to be with her . . . and I pray that God will allow me to be . . .

‘cause I can’t go on like this. I love you all, .. . especially Robbie, Chris,

and John . . . . Please pray for me . . . and thanks, Joe. . . . Thanks for

everything . . . . I love you. . . ." Id. (Ellipses in original transcript of

tape; actual tape not submitted on appeal).

5

a soda, explaining later that he had intended to drink the

soda and commit suicide that night, but had fallen asleep

prior to consuming the drink.

Hotel personnel alerted the police that Marshall had

checked into the hotel. When Marshall did not respond to

a telephone call to his room, they forced entry and

transported him to a hospital. His counsel, Glenn Zeitz,

arranged for him to be transferred to a Philadelphia

psychiatric hospital for observation. Police also seized the

tapes, but did not play them until after they had secured a

search warrant.

The prosecutor entered into a plea bargain favorable to

McKinnon, offering him an extremely light sentence and

assistance with entry into the witness protection program

in return for testimony against Marshall and for naming

and implicating the person who actually shot Maria

Marshall. McKinnon named Larry Thompson as the

shooter. Larry Thompson was a person whom Marshall had

never met, who lived in Louisiana near McKinnon.

Marshall and Thompson were tried together. Opening

statements were made on January 27, 1986. McKinnon

testified at length, as did Kraushaar. Prior to and between

McKinnon and Kraushaar, and at the close of the State’s

case, the prosecutor interspersed the testimony of persons

who independently corroborated pieces of McKinnon’s

testimony with the testimony of the officers who responded

the night of the murder and those who investigated the

crime, including forensics experts. The State also elicited

testimony from Maria Marshall’s attorney and an

investigator she had hired prior to her death, so the jury

knew that Maria Marshall had been aware of Marshall’s

affair prior to her death. Other witnesses testified as to the

existence, timing, and amounts of the insurance policies

taken out against Maria’s life. The contents of the"suicide"

tape to Marshall’s brother-in-law were also played for the

jury.

McKinnon testified that on his first visit to New Jersey,

he had made reservations at the Islander Motel in Atlantic

City because Harrah’s was booked. Since the taxi driver

could not find the Islander, he had dropped him off at

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Harrah’s, where McKinnon was able to get a room.

McKinnon further testified that Marshall had asked

McKinnon to kill Maria that night in the parking lot of a

local restaurant, the Ram’s Head Inn, but that, though he

did visit the parking lot that night, it was crowded, and he

simply returned to the hotel. A taxi driver then

independently testified that he had picked McKinnon up at

the airport on the date in question, could not find the

Islander, dropped him off at Harrah’s, and then, an hour

later, took him to the Ram’s Head Inn, where they drove

around the building and then returned to Harrah’s. Direct

Testimony of Tae Yeon, February 10, 1986, St. Ex. 18T at

22-25. Shortly before noon on February 20, 1986, the State

rested.

Marshall’s case began with the testimony of the letter

carrier who collected the mail from the Best Western hotel,

seeking to establish that the tapes -- which the trial court

had refused to suppress -- had been taken from a closed

depository rather than an open container as the officers

who seized the tapes had contended. Other Best Western

employees were also called to testify as to the mail

container. One, Zillah Hahn, also testified that she notified

the authorities when Marshall checked in.

Marshall called an insurance salesman from Cranford,

New Jersey, who testified briefly that Marshall was viewed

as an "upstanding professional, insurance agent,

businessman and family man," and that the community

considered him to be "a law abiding citizen, that he has

integrity, that he has truthfulness." Direct Testimony of

Gerald Hughes, February 20, 1986, St. Ex. 26T at 144-46.

On cross-examination, Hughes admitted that he was not a

member of the Toms River community; rather his

acquaintance with Marshall was through the insurance

business and social occasions. Id. at 146-47. Other

insurance and financial services salesmen testified about

the company whose policies Marshall sold primarily, his

success at selling, and described in general the insurance

sales industry and its practices. Tamburin, the man who

taught Marshall a system of "comps" that he practiced at

the casinos, was, through confusion as to when he had

been placed on the witness list, allowed to testify only as to

7

his personal opinion that Marshall’s reputation for being a

law-abiding citizen and truthful and honest was"good."

Direct Testimony of Henry Tamburin, February 20, 1986,

St. Ex. 26T at 250-51.

One of Marshall’s sisters, Oakleigh DeCarlo, testified, but

only as to the events of September 21st, when the police

questioned Marshall at his home about the names they had

traced in Louisiana. Marshall then took the stand. He gave

a brief autobiographical sketch, recounted his version of

the affair with Kraushaar and his relationship with

McKinnon, and gave his account of the events leading up to

Maria’s death. Then, a couple who were acquaintances of

Marshall testified that he had a good reputation for being a

law-abiding citizen and truthful and honest man.

Marshall’s youngest son, John, testified briefly, recalling

that his father called him from the Best Western sounding

"depressed and kind of upset." Direct Testimony of John

Marshall, February 26, 1986, St. Ex. 29T at 186. His

middle son, Chris, testified that his father had called him

that afternoon, and sounded "nervous." On cross-

examination, Chris testified that his father had sounded as

though he were saying good-bye. Cross-Examination of

Chris Marshall, February 26, 1986, St. Ex. 29T at 190.

Marshall’s brother-in-law, Joseph Dougherty, an attorney,

testified that he had drafted powers of attorney, which

Marshall signed, appointing Dougherty guardian over John

and authorizing him to handle Marshall’s affairs. They were

executed shortly after Maria’s death, but before the episode

at the Best Western hotel. Dougherty characterized his role

in trial preparation as co-counsel in a limited capacity. The

tapes to Marshall’s sons and secretary were played as part

of Marshall’s testimony.

Dr. Elliot Atkins, a licensed clinical pyschologist, testified

that he drove with Glenn Zeitz, Marshall’s counsel, to see

Marshall the night of the Best Western episode, and that,

upon his recommendation, Marshall was transferred to the

Institute of Pennsylvania Hospital, a psychiatric hospital,

where Marshall remained as an in-patient for approximately

two weeks. Because Dr. Atkins was not qualified as an

expert witness, he was not allowed to testify as to any

opinion regarding Marshall’s condition at the time.

8

Marshall’s oldest son, Robert, testified that he, his

mother, and his father had had lunch at the country club

the day of his mother’s murder. This information

contradicted McKinnon’s testimony; McKinnon had testified

that he and Marshall were on the Garden State Parkway

looking for an appropriate site to stage the murder at the

time in question. Robert also discussed the events on

September 21, when the police questioned Marshall at their

house; he had let them in and sat with his father during

the questioning. He testified that his father had"warned

them before hand [sic] . . . that he was instructed not to

answer them, and it didn’t seem to matter to the two men,

they just asked them anyway. They seemed to bounce off

him." Direct Testimony of Robert Marshall, February 27,

1986, St. Ex. 31T at 163-64. When his father called him

from the Best Western, "it wasn’t the same dad that I’d

been used to talking to. He sounded shaky, like he’s been

through a lot, that type of thing." Id. at 164. Robert also

testified that the family wanted to bury his mother in

Florida, and had planned to travel there in December, but

his father’s arrest had caused them to postpone the

arrangements.

Marshall’s counsel had retained an investigator, Russell

Kolins, who testified as to his investigation in Louisiana

and his interviews with Billy Wayne McKinnon. Some of the

investigators originally called by the State were recalled.

McKinnon had testified that he and Thompson had

driven to New Jersey, and that he had met with Marshall

late in the morning of September 6. Thompson’s son, Brian,

testified that his father took him to the dentist on

September 6, which both Thompson and his wife

confirmed. One of the dentist’s employees produced a

receipt made out to Larry Thompson that day, although she

could not positively identify him as the person who had

accompanied Brian. A friend of Thompson’s, Garland

Giddings, testified that he called and talked with Thompson

at home on the evening of September 6. The phone call was

confirmed both by Thompson’s wife, Wanda, and Giddings’

wife. Both Brian and Wanda testified that Thompson was

with them throughout the weekend in question.

Thompson’s brother testified that he had seen Thompson

9

and his wife on the morning of September 8. Mike Gentry

testified that he had come to Atlantic City with McKinnon

in July, had signed the hotel register himself, and during

that trip never saw nor met either Rob or Maria Marshall.

He also testified that the trip had taken about 28 hours

each way.

Closing arguments were held on March 3, 1986. On

March 4, the jury was instructed, and spent most of the

day in deliberations. It resumed its deliberations on March

5, reaching a verdict shortly before noon.

Larry Thompson was acquitted, and no one was ever

convicted of actually shooting Maria. Marshall, however,

was convicted of murder as an accomplice by promising or

paying money, and of conspiracy to commit the murder of

his wife. After rendering the guilty verdict, the jury was

dismissed for lunch. Then both counsel met with the judge

to discuss the logistics of the penalty phase. As Marshall

was being led from the courtroom, he fainted. According to

the dispatch records, an ambulance was summoned at

11:36 a.m. An emergency room physician examined

Marshall at 12:30 p.m. He conducted an examination and

laboratory tests, and discharged Marshall approximately 50

minutes later. According to the sheriffs who transported

Marshall back to the courthouse, the drive took an

additional 15-20 minutes. After Marshall’s return, he and

counsel conferred. The penalty phase convened at 1:45

p.m. that same day.

After penalty phase statements by counsel and

instructions from the judge, the jury retired to deliberate.

One and a half hours later, it sentenced Marshall to death.

It unanimously found one statutory aggravating

circumstance, that Marshall "procured the commission of

the offense by payment or promise of payment of anything

of pecuniary value." N.J. Stat. Ann. S 2C:11-3c(4)e. The

parties had stipulated as to the existence of one mitigating

factor, Marshall’s lack of a prior criminal history, 2C:11-

3c(5)f, and the jury found unanimously the existence of a

second under the statutory "catchall" provision, 2C:11-

3c(5)h, on the basis of his "business, charitable, and

community activities." State v. Marshall, 586 A.2d 85, 114

(N.J. 1991) ("Marshall I").

10

The proceedings have been subject to extensive judicial

review. On direct appeal, the New Jersey Supreme Court

undertook a thorough and careful analysis of Marshall’s

claims. That analysis, and a more detailed recitation of the

facts, are reported in Marshall I, 586 A.2d 85 (N.J. 1991).

Justice Handler dissented from the Court’s opinion, and

Justice O’Hern concurred in part and dissented in part.

Justice O’Hern opined that constitutional trial errors

sufficiently undermined confidence in the sentencing and

that the imposition of the death penalty could not be

supported, even though he felt that the guilty verdict

should stand. See id. at 196-99 (O’Hern, J., concurring in

part and dissenting in part).

Approximately three years after trial, two documents were

discussed in an article in the New York Times that had not

been provided to defense counsel prior to trial. Upon

learning of the documents, Marshall moved the New Jersey

Supreme Court for a hearing to determine whether a Brady

violation had occurred. The New Jersey Supreme Court

ordered a limited remand hearing, discussed in detail in

Marshall I, 586 A.2d at 175-78. It also conducted a

proportionality review, reported at 613 A.2d 1059 (N.J.

1992). Marshall’s petition for certiorari was denied on

February 22, 1993. See 507 U.S. 929 (1993). Marshall’s

conviction became final as of the date of the denial of

certiorari. See Kapral v. United States, 166 F.3d 565, 570

(3d Cir. 1999).

Marshall then petitioned for state post-conviction relief,

which was denied. Marshall had requested a "complete

evidentiary hearing to support the claims raised in the

petition through the presentation of testimonial and

documentary evidence" and had "planned to amend the

petition based on the evidence adduced at the hearing."

State v. Marshall, 690 A.2d 1, 26 (N.J. 1997) ("Marshall II").

However, the Court granted a full evidentiary hearing as to

only five of Marshall’s claims, all of which related to defense

counsel’s promising, as part of his opening statement, that

Marshall would take the stand, and to whether Marshall

was competent to participate in the penalty phase, given

his collapse following the verdict. For the remainder of the

issues, the parties were required to submit documentary

11

evidence only. Marshall’s request for reconsideration of the

denial was also denied. Marshall v. Hendricks , 103 F. Supp.

2d 749, 771 (D.N.J. 2000) ("Marshall III"). He appealed the

denial to the New Jersey Supreme Court in his post-

conviction relief appeal. Marshall also appealed the Court’s

denial of each of his "548 grounds for reversal." Marshall II,

690 A.2d at 26. The New Jersey Supreme Court affirmed

the decision of the post-conviction relief ("PCR") court.

Again, Justice Handler dissented, and Justice O’Hern

concurred in part and dissented in part from the New

Jersey Supreme Court’s opinion, reported at Marshall II,

690 A.2d 1 (N.J. 1997).

Marshall then filed for habeas relief in federal court. The

District of New Jersey denied Marshall’s petition for a writ

of habeas corpus in Marshall III, 103 F. Supp. 2d 749

(D.N.J. 2000), and he has appealed that denial to us. In the

District Court, Marshall also moved for discovery, including

depositions, pursuant to Rule 6 of the federal rules that

govern cases arising under 28 U.S.C. S 2254, in order to

develop his Brady and ineffectiveness claims. The District

Court denied the requests. Marshall also sought evidentiary

hearings regarding his claims under Brady and Strickland,

as well as the search, seizure, and admission of the tape to

his brother-in-law, a spectator outburst, and judicial bias.

Id. at 767. Marshall alleged that the New Jersey Supreme

Court erroneously addressed the merits of his claims,

despite the "lack" of a record, and that, as a consequence,

the New Jersey Supreme Court’s opinion "contains little by

way of finding of fact, and much by way of conjecture and

unwarranted assumption." Id. at 771. The District Court

found that Marshall did not " ‘fail’ to develop the evidence

supporting his claims in state court," but determined that

"none of the Townsend factors requiring an evidentiary

hearing" were applicable, and "all of petitioner’s claims were

fully and fairly developed during the state court

proceedings;" accordingly, the District Court found that

Marshall was not entitled to an evidentiary hearing. Id. at

771-72. Marshall is also appealing those denials.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 28 U.S.C.

S 2241 and 28 U.S.C. S 2254. Our appellate jurisdiction

12

arises under 28 U.S.C. S 1291 and 28 U.S.C.S 2253. The

Certificate of Appealability ("COA") was granted on March

28, 2001 as to all issues raised by Marshall. Where, as

here, a district court dismisses a habeas petition based

solely on a review of the state court record without holding

its own evidentiary hearing, our standard of review of the

district court’s determination is plenary. Duncan v. Morton,

256 F.3d 189, 196 (3d Cir. 2001). Thus, we will review the

state courts’ decisions applying the same standard as the

District Court. Because Marshall’s petition for a writ of

habeas corpus was filed on October 30, 1997, the

provisions of the Antiterrorism and Effective Death Penalty

Act ("AEDPA") apply, and our standard of review of the

state courts is dictated by those provisions, codified at 28

U.S.C. S 2254. In pertinent part, those provisions are:

(d) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment

of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim

--

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

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

unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

The Supreme Court elucidated in [Terry] Williams v.

Taylor how AEDPA has modified habeas review. 529 U.S.

362 (2000). We are to review the state court’s

determinations on the merits only to ascertain whether the

court reached a decision that was "contrary to" or an

"unreasonable application" of clearly established Supreme

Court law, or whether it made an "unreasonable

determination" of the facts. In order for a decision to be

contrary to Supreme Court precedent, the court must have

reached a "conclusion opposite to that reached by th[e]

[Supreme] Court on a question of law or if the state court

decides a case differently than th[e] [Supreme] Court has on

13

a set of materially indistinguishable facts." Id. at 413. An

application is unreasonable "if the state court identifies the

correct governing legal principle from th[e][Supreme]

Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case."2 Id. While the United

States Supreme Court’s focus in [Terry] Williams was

elucidating the provisions of S 2254(d)(1), a federal court

can also grant habeas relief if a state court unreasonably

determined the facts in light of the evidence presented to it.

See 28 U.S.C. S 2254(d)(2).

III. Discussion

Before us, Marshall alleges that there were eleven

categories of error that so impugned the trial as to meet the

stringent standard imposed by AEDPA and that would

compel a reversal of the District Court’s orders, and instead

require the issuance of the writ as well as the grant of

discovery and an evidentiary hearing.

I. Penalty Phase Ineffectiveness of Counsel

II. Denial of the Evidentiary Hearing

III. Brady Violations

IV. Guilt Phase Ineffectiveness of Counsel

V. Violation of the Right to Counsel

VI. Prosecutorial Misconduct

VII. The Aggravating Factor was the Same as an

Element of the Conviction

VIII. Search and Seizure Violations

_________________________________________________________________

2. The Court also noted that the Court of Appeals whose decision it was

reviewing had determined that there was a second way in which an

application could be unreasonable: if it either unreasonably extended --

or refused to extend -- a legal principle to a new context in which it

should apply. Id. at 408. The Court specifically refused to endorse that

interpretation, however, noting both that though it may be correct, it was

not precise, and that "[t]oday’s case does not require us to decide how

such ‘extension of legal principle’ cases should be treated under

S 2254(d)(1)." Id. at 408-09.

14

IX. Denial of Discovery

X. Willful Nondisclosure of Brady Material

XI. Cumulative Error

Although we will address each of Marshall’s claims,

several of the claims overlap in their issues of fact and law,

and will be addressed together.3 A roadmap is appropriate.

A. We will address all of Marshall’s claims based on

the State’s alleged failures to disclose (III, IX, and

X) together.

B. We will combine Marshall’s claims regarding his

right to counsel and prosecutorial misconduct (V

and VI) together, as they are related.

C. We will discuss Marshall’s claims of Fourth

Amendment and related statutory violations

together.

D. We will address separately the question raised by

Marshall as to whether the aggravating factor upon

which the jury relied in sentencing Marshall to

death impermissibly duplicates elements of the

crime of which he was convicted.

E. We will examine Marshall’s complaints as to the

ineffectiveness of his counsel in the guilt phase.

F. We will then consider Marshall’s contention that

the District Court erred in determining that the

trial errors, taken together, were insufficient to

constitute constitutional error.

G. Lastly, we will address Marshall’s allegations that

his counsel was ineffective at the penalty phase.

_________________________________________________________________

3. Although Marshall raised generalized claims for discovery and an

evidentiary hearing, the grant or denial of an evidentiary hearing or

discovery is constitutional only to the extent it implicates specific

constitutional claims; thus, we will address the denial of the evidentiary

hearing and discovery only within the context of the specific claims

sought to be developed.

15

A. Government Failures to Disclose

Approximately one year prior to trial, Marshall’s counsel

requested that the prosecutor provide him with all

exculpatory materials, including records of all agreements

entered into with any witnesses.4 Of all the State’s

witnesses at trial, two were undeniably the most critical to

establishing the State’s case: Billy Wayne McKinnon and

Sarann Kraushaar. After the trial, it came to light that the

State had entered into an immunity agreement with Sarann

Kraushaar -- an agreement that first surfaced and came to

Marshall’s attention three years after trial by a report in a

newspaper article. Marshall I, 586 A.2d at 175. In addition,

although the prosecutor had disclosed the written plea

agreement entered into with Billy Wayne McKinnon, he had

not disclosed numerous additional favors that had been

provided to McKinnon and his family, which had also come

to light years after the trial. In the opinion issued on appeal

from the denial of post-conviction relief, the New Jersey

Supreme Court noted that these issues were "addressed

and resolved" in the opinion issued on direct appeal.

Marshall II, 690 A.2d at 57. Thus, we will limit our

consideration of the Court’s analysis to its reasoning on

direct appeal.

The principles enunciated in Brady v. Maryland , 373 U.S.

83 (1963), protect a defendant’s right to due process of law

under the Fifth Amendment by requiring that a prosecutor

disclose material exculpatory evidence to the defense.

Where the prosecutor fails to do so, regardless of whether

the omission was intentional or a product of bad faith, the

defendant is entitled to a new trial -- or, if pertinent, a new

penalty phase -- provided that the withheld materials were

material to guilt or innocence or to punishment. These core

teachings of Brady have been consistent throughout the

United States Supreme Court’s ensuing decisions; the

Court has in its later decisions clarified that the

"prosecutor’s" obligation to disclose extends to "any

favorable evidence known to the others acting on the

government’s behalf in the case, including the police,"5 and

_________________________________________________________________

4. The precise text is reproduced at Marshall I, 586 A.2d at 175.

5. Although Kyles v. Whitley, 514 U.S. 419, 438-39 (1995) (reasoning

from Giglio v. United States, 405 U.S. 150, 154 (1972)), was not decided

until after Marshall’s conviction became final, we think it clear that here

the prosecutor was responsible for disclosing the immunity agreement --

which his office negotiated -- and the authorization of payments on

behalf of McKinnon’s family.

16

that "exculpatory" materials include impeachment evidence.6

The standard for materiality is the same as that iterated in

Strickland v. Washington, 466 U.S. 668, 694 (1984). As the

United States Supreme Court summarized:

[The] touchstone of materiality is a "reasonable

probability" of a different result, and the adjective is

important. The question is not whether the defendant

would more likely than not have received a different

verdict with the evidence, but whether in its absence

he received a fair trial, understood as a trial resulting

in a verdict worthy of confidence. A "reasonable

probability" of a different result is accordingly shown

when the government’s evidentiary suppression

"undermines confidence in the outcome of the trial."

Kyles, 514 U.S. at 434 (quoting United States v. Bagley, 473

U.S. 667, 678 (1985)).

At trial, as noted before, Marshall did not dispute that he

hired McKinnon, nor that he wired money to him. What

was hotly disputed was the purpose of the contact and

payments: Marshall claimed he hired McKinnon to

investigate lost casino winnings, and McKinnon testified

that Marshall hired him to kill Maria. McKinnon’s elaborate

narrative provided a detailed account of the progression of

the plot from the time of the initial solicitation and meeting

to the unfolding of events on the day and night of the murder.7

In contrast, Sarann Kraushaar did not testify at all about

McKinnon’s relationship with Marshall or the details of the

murder. Instead, she narrated convincingly the story of her

relationship with Marshall, testifying that Marshall had told

her that he wanted to get rid of his wife and had also

confessed that he was burdened by extensive debt but that

the insurance on his wife would cover the debt. Thus,

_________________________________________________________________

6. Giglio, 405 U.S. at 154.

7. McKinnon’s narrative also detailed how Thompson allegedly agreed to

and executed the murder, but Thompson was acquitted. Marshall’s

account differed from McKinnon’s, not only as to the purpose of

McKinnon’s retention, but also as to the amount of money paid (and

promised), whether Marshall and McKinnon met together on the day of

the murder, or only that evening, and in numerous other details.

17

Kraushaar provided a tangible "why" to accompany

McKinnon’s "what" and "how."

Because Marshall is claiming that the New Jersey

Supreme Court unreasonably applied Brady and its

progeny in holding the withheld information immaterial, we

must test the undisclosed materials "when viewed

collectively" to see if the resultant verdict was"unworthy of

confidence." United States v. Pelullo, 105 F.3d 117, 123 (3d

Cir. 1997) (citing Kyles, 514 U.S. at 437). 8 Thus, we will

examine in more detail what was withheld as to each

witness, and ask then whether the New Jersey Supreme

Court erred in deciding that the combined nondisclosure

was immaterial.

1. Kraushaar

When Kraushaar’s immunity agreement came to light

through a newspaper article, the New Jersey Supreme

Court issued an order remanding the matter to decide

"whether correspondence in respect of a grant of immunity

for Sarann Kraushaar was disclosed to the defense; if it was

not, was the non-disclosure willful and was the information

improperly withheld from the defense." Marshall I, 586 A.2d

at 175. In a footnote, the Court explained that the

limitation of the scope was at the request of the defense,

and agreed to by the State. Id. at 175 n.3. The Court

acknowledged that the scope of the remand was not

consistent with Brady in that, under Brady, the

prosecution’s motives are immaterial to ascertaining

whether a violation occurred. Id. The Court concluded

nonetheless that its analysis was consonant with the

dictates of Brady in that it "reach[ed] and determine[d] the

ultimate issue under Brady -- whether the withheld

evidence is material either to guilt or to punishment." Id.9

_________________________________________________________________

8. Although Kyles was decided in 1995, after Marshall’s conviction

became final, the New Jersey Supreme Court stated in denying the

appeal from post-conviction relief that the evidence should be viewed

collectively, and cited to Kyles in support of that proposition. Marshall II,

690 A.2d at 33.

9. When the New Jersey Supreme Court considered Marshall’s direct

appeal, it applied the United States v. Agurs , 427 U.S. 97, 107 (1976),

18

Because we find that the New Jersey Supreme Court

reasonably concluded that the immunity agreement was

non-material, we will not disturb the Court’s conclusion.

When the remand hearing began, the parties stipulated

that the documents in question had not been disclosed

prior to or during trial. Id. at 175. During the hearing, the

State conceded that at least some of the documents should

not have been withheld. Id. During the remand hearing, the

Court limited discovery to "documents closely related to the

scope of th[e] Court’s remand order." Id. at 179. Before us,

Marshall claims both that he should have been entitled to

broader discovery and an evidentiary hearing and that the

New Jersey Supreme Court improperly assessed the

materiality of the information under Brady and its progeny.

We are persuaded that the Court did not err in limiting

discovery because Marshall himself was responsible for the

limited scope of the remand. We also find no reason to

disturb the discretion of the District Court in its

determination that no further evidentiary development was

necessary.10 Further, we conclude that the non-disclosure

of the grant of immunity to Kraushaar was not material.

Kraushaar was first interviewed on September 7, 1984,

_________________________________________________________________

standard of materiality because Marshall had specifically requested the

materials at issue. On the appeal from the denial of post-conviction

relief, it instead applied the Bagley standard of materiality, basing its

decision on its reading of subsequent case law and noting that since

Agurs requires less of a showing of materiality, a finding of non-

materiality under Agurs will lead to a finding of non-materiality under

the less sympathetic standard. Marshall II, 690 A.2d at 33-34. We see no

reason to fault the New Jersey Supreme Court in this regard.

10. As the New Jersey Supreme Court noted, the New Jersey Court Rules

include a rule governing the ability of a criminal defendant to discover

materials in a prosecutor’s files. This Rule provides for "broad access"

and "operates independently of the prosecution’s absolute obligation to

reveal exculpatory material, documentary or otherwise, to the defense."

Marshall I, 586 A.2d at 182. We are concerned here only with the

narrower question of whether the New Jersey Supreme Court erred in

determining that Brady did not mandate that the New Jersey Supreme

Court upset the discretionary decision of the trial court to limit discovery

to the scope of the remand order. See id. at 183-84.

19

the day after Maria Marshall was killed. Marshall I, 586

A.2d at 101. She was stopped while driving and escorted to

the prosecutor’s office. Id. Her attorney was present at the

interview. Id. In that interview, she told prosecutors that

she and Marshall had had an affair since June 1983, that

Maria had suspected that they were having an affair, and

that Kraushaar and Marshall had made plans to leave their

spouses. Id. They shared a post office box, and he had

given her silver ingots that she kept in a safe deposit box.

Id. Additionally, she stated that Marshall had told her that

the insurance on Maria would cover his debts, and that he

had at one point said of Maria that he "wished she wasn’t

around." Id. He had asked Kraushaar if she knew of

"anyone who could take care of it," and she had replied

with the name of a person who had been in trouble with

the law, but that she "never wanted to be involved with him

if he could do anything like that to his wife." Id.

Marshall and Kraushaar continued to see each other

until September 25, when she ended the relationship. Two

days later, Kraushaar again met with investigators, on her

initiative, and, at her counsel’s insistence, the prosecutor’s

office drew up a letter agreeing "neither to charge nor to

prosecute Kraushaar in connection with the death of Maria

Marshall, in return for her ‘truthful cooperation.’ " Id. at

109. Marshall alleges that in this second interview, both the

content and the tone of Kraushaar’s statements were

"progressively more damaging." App. Br. at 72. He lists

specifically three differences between the testimony at the

first interview and the second, after the grant of immunity:

"Kraushaar told the authorities that the debt had doubled

to $200,000 and that she assumed it was a gambling debt."

Id. at 73. Instead of reporting Marshall’s having said he

wished Maria wasn’t around, she described his statement

as "I swear if I thought there was a way of getting rid of her

I would," and added that she did not doubt Marshall was

referring to murdering his wife. Id. As to the first comment,

we note parenthetically that on the same evening

Kraushaar provided her statement, Marshall checked into

the Best Western and made preparations to commit suicide.

On one of the tapes he recorded, he acknowledged that his

debt had "accelerated to almost two hundred thousand

dollars." Marshall I, 586 A.2d at 103. We question whether

20

her reporting of the same amount of debt as Marshall

himself reported on the same date was attributable at all to

the existence of the immunity agreement or was mere

repetition of what Marshall may have said to her.

At trial, Kraushaar recounted these events in arguably

stronger terms, accentuating Marshall’s "dire financial

straits" and "constant" discussion of the debt, and

replacing the idea of "getting rid" of Maria Marshall with

"doing away with her." App. Br. at 73. Kraushaar also

repeated that Marshall had indicated that the insurance on

Maria would take care of his debts. Id. at 73-74. Marshall

also raises several other areas as to which Kraushaar

testified at trial, but had not included as part of her initial

statement. Id. at 74-76.

Marshall contends that he was prejudiced at both the

guilt and sentencing phases by the fact that the jury could

not weigh Kraushaar’s testimony against the immunity

agreement. Id. at 77. He finds fault with the New Jersey

Supreme Court’s determination that the agreement was not

material -- a conclusion with which the District Court

agreed (see Marshall III, 103 F. Supp. 2d at 775) -- arguing

that it underestimated Kraushaar’s importance to the

prosecution,11 and overgeneralized in its conclusion that

her testimony at the two interviews and trial was

consistent. App. Br. at 77, 79-80. We disagree with his

characterizations of the New Jersey Supreme Court’s

reasoning.

The New Jersey Supreme Court did state that "none of

[Kraushaar’s] testimony directly implicated defendant in a

homicide conspiracy" and that "[i]t is evident that the most

damaging evidence against defendant came from

McKinnon’s testimony and defendant’s tape to his brother-

in-law, in which he admitted paying money to McKinnon

the night of the murder." Marshall I, 586 A.2d at 194. We

think those statements were not a sign of denigration of

_________________________________________________________________

11. Even were we to agree with Marshall’s characterization, the New

Jersey Supreme Court would not have been at fault if it determined that

her testimony "was by no means as important to the prosecution as was

the more direct incriminating testimony of other witnesses." United

States v. Pflaumer, 774 F.2d 1224, 1230 (3d Cir. 1985).

21

Kraushaar’s significance to the case, but were, instead,

recognition that she was not an informant or co-conspirator

actually implicated in the crime, who received immunity.

Under these facts, we cannot attribute the point that

Marshall stresses -- that the tenor of the remarks and their

detail was heightened as the time toward trial progressed --

to the existence of the immunity agreement. Where, as

here, a former lover has had to confront publicly her

previously private relationship, and has broken off the

relationship in the face of mounting doubts as to her lover’s

veracity, we see nothing remarkable in the tone and details

post-separation differing from those offered while the

relationship was still extant. Further, the differences in

tone and detail were available to the defense to use for

impeachment purposes at trial. The existence of an

immunity agreement would not alter the challenge counsel

could raise as to the apparent or actual inconsistencies.

Further, the purpose of an immunity agreement is to put

a person in the same position she would have been had she

invoked her Fifth Amendment privilege against self-

incrimination instead of testifying. Kastigar v. United

States, 406 U.S. 441, 459 (1972) ("[A]n analysis of prior

decisions and the purpose of the Fifth Amendment privilege

indicates that use and derivative-use immunity is

coextensive with the privilege."). Thus, the impeachment

value of the immunity agreement is inextricably tied to the

self-incriminating evidence that was provided after the

immunity agreement was executed. Put another way, its

value lies principally in absolving the recipient of her

admitted involvement. Here, the New Jersey Supreme Court

noted that following the execution of the immunity

agreement, Kraushaar provided no "significant,

incriminating evidence that she had not already given

before the prosecutor’s agreement not to prosecute."

Marshall I, 586 A.2d at 194. Instead, as the Court also

found, her testimony prior to and following the immunity

agreement was consistent. Id. Hence, we conclude that the

nondisclosure of Kraushaar’s immunity agreement was

immaterial.

As the State points out, there is no evidence in the record

that on September 7, 1984, just hours after Maria

22

Marshall’s death, when Kraushaar was stopped in her car

and taken in for questioning, she was contemplating an

immunity agreement and tailored her first statement-- or

her retention of counsel -- accordingly. Appee. Br. at 58-

59. No additional self-incriminating details emerged in the

second statement. Indeed, as acknowledged by Marshall,

McKinnon had the "essential knowledge of the details of the

alleged deal" but Kraushaar "gave the State’s case . . .

credibility." App. Br. at 66. That credibility would be

undermined only if the existence of the immunity

agreement "if disclosed and used effectively,[ ] may make

the difference between conviction and acquittal." United

States v. Bagley, 473 U.S. 667, 676 (1985).

Here, where we can posit no self-incriminating evidence

that could have been accorded additional credibility by the

jury in light of the undisclosed immunity agreement, the

concerns that normally animate the Bagley analysis are

absent. Thus, it was reasonable for the New Jersey

Supreme Court to conclude that the non-disclosure was not

material.12 Further, it did not contradict or otherwise

undermine any of her testimony. In fact, it is difficult to

articulate or imagine exactly how a jury could use its

existence as a reasonable basis to undermine the detailed

version of events to which Kraushaar testified.

2. McKinnon

McKinnon received a very favorable plea agreement in

return for his testimony, an agreement which the defense

attacked vigorously at trial. After the trial, two additional --

but related -- pieces of information came to light. First,

during the remand hearing to investigate the failure to

produce the Kraushaar immunity agreement, documents

were produced that indicated that McKinnon’s family had

been relocated and was being given monetary support by

the government prior to trial. Second, in a television

appearance, one of the investigators made a comment

_________________________________________________________________

12. At least one court would not even reach the question of materiality

under these facts; the Ninth Circuit Court of Appeals has stated that

where the undisclosed item in question does not have impeachment or

exculpatory value, "it is not Brady material." United States v. Marashi,

913 F.2d 724, 733 (9th Cir. 1990).

23

about the witness protection program that suggested

McKinnon’s participation was the result of his cooperation

with federal authorities in other criminal investigations.

On December 15, 1984, McKinnon entered into a plea

agreement with the State after reviewing the evidence that

the State had compiled implicating him in the murder.

During cross-examination, Marshall’s counsel meticulously

reviewed the extent to which the prosecutors had shown

McKinnon evidence of the crime gathered prior to his

formal statement, and, in some cases, prior to the plea

agreement. See generally Cross-Examination of Billy Wayne

McKinnon, February 4, 1986, St. Ex. 14T at 6-18, 20-25,

34-56, 211-13.

During McKinnon’s direct testimony, the text of the plea

agreement was read into the record.

Whereas Billy Wayne McKinnon is presently indicted

by the Ocean County Grand Jury along with Robert

Cumber and James Davis in indictment number I-62-

01084 and is charged in count one of said indictment

with conspiracy to murder Maria Marshall, the co-

conspirators being Robert Cumber, James Davis and

others both known and unknown; and whereas Billy

Wayne McKinnon is charged in count three of said

indictment as a principal in the murder of Maria

Marshall, but not as the actual perpetrator of the

murder, that is not to shoot her [sic]; and whereas the

State of New Jersey would like to obtain the truthful

cooperation of Billy Wayne McKinnon in identifying all

others involved in the murder of Maria Marshall and

the truthful testimony of Billy Wayne McKinnon in the

prosecution of all of said individuals and whereas Billy

Wayne McKinnon has indicated through his attorney,

Maurice Loridans, that he is willing to truthfully

cooperate with the State of New Jersey in exchange for

certain concessions and assistance by the State of New

Jersey. [sic] Now, therefore, it is hereby agreed by and

between and among Billy Wayne McKinnon, Maurice

Loridans and the State of New Jersey as follows:

(1) Billy Wayne McKinnon will give a complete and

truthful statement to the State of New Jersey

24

identifying everyone involved in the conspiracy to

murder and the murder of Maria Marshall and the role

which they played thereon;

(2) Billy Wayne McKinnon will sign a waiver of

immunity and testify truthfully before the Ocean

County Grand Jury with regard to all of the facts of

which he has knowledge concerning the crime;

(3) if the Grand Jury returns an indictment, Billy

Wayne McKinnon will appear as a witness and testify

truthfully in the prosecution of said indictment;

(4) Billy Wayne McKinnon will be permitted to plead

guilty to the crime of conspiracy to murder Maria

Marshall. And it is understood and agreed by and

between the parties that this crime does not fall within

the purview of the so-called Graves Act;

(5) the State of New Jersey will recommend that if the

Court decides to impose a custodial sentence on Billy

Wayne McKinnon, that said sentence not exceed five

years and that there be no period of parole ineligibility;

(6) the Ocean County Prosecutor’s office will

recommend to the State Department of Corrections

that any custodial sentence be served in the Clinton

Institution for security purposes;

(7) the Ocean County Prosecutor’s office will

recommend in writing to the New Jersey State Parole

Board that Billy Wayne McKinnon be granted parole at

the earliest eligible date;

(8) the State of New Jersey will immediately re-locate

the family of Billy Wayne McKinnon for their protection

to a safe location; and the Ocean County Prosecutor’s

office and the New Jersey State Police will recommend

and support their entry into the witness protection

program.

Witnesses whereof the parties to this agreement have

affixed their signatures hereon this 15th day of

December, 1984.

Direct Testimony of Billy Wayne McKinnon, February 3,

1986, St. Ex. 13T at 100-03.

25

The agreement was signed by McKinnon, his attorneys,

and the Ocean County Prosecutor. Id. at 103. During his

cross-examination, Marshall’s counsel asked McKinnon

about the witness protection program. Id. at 203-05.

McKinnon admitted to having general knowledge about the

program, but denied having specific knowledge of it, or

whether or how his participation would take place. Id.

Thompson’s counsel questioned McKinnon extensively

about the plea agreement, eliciting from McKinnon that he

had a "very substantial motive to lie." Cross-Examination of

Billy Wayne McKinnon, February 4, 2002, St. Ex. 14T at

135-36, 180. He also brought out that McKinnon

understood the potential sentence for the crimes for which

he was indicted -- murder and conspiracy to commit

murder -- and how minimal his sentence was. Id . at 138-

40. In the course of the cross-examination, McKinnon

admitted that if he had stated that he was the shooter, he

would not have gotten the "wonderful deal" that he did, and

that he had to say that he did not shoot Maria Marshall in

order to reap the benefits of the acknowledged plea

agreement. Id. at 144. McKinnon also acknowledged that in

his testimony he had admitted to lying about "some things,"

including his identity and the purpose of the money he

received from Marshall. Id. at 145, 184-86, 192-95.

McKinnon further conceded that under the terms of the

plea agreement he would be allowed, following the trial, to

plead to the second degree crime, and would not be charged

with the murder, and that by securing the statement that

the crime committed did not fall within the purview of the

Graves Act, McKinnon avoided the three year mandatory

imprisonment that was supposed to result when a gun was

used in the commission of certain crimes, including

murder. Id. at 164-66. He also admitted that the judge

might not send him to jail at all, but that in any event the

maximum sentence would be five years, with no period of

parole ineligibility. Id. at 169-70.

Thompson’s counsel also brought out the fact that the

Clinton Institution is primarily a women’s prison, and that

McKinnon would be assigned there to protect him from

abuse by other inmates. Id. at 171-72. He also elicited

McKinnon’s acknowledgement that, although not stated in

the plea agreement, McKinnon was told that he would get

26

credit for the time already served in jail, and, since that

time was more than the standard period of parole

ineligibility, McKinnon would be immediately eligible for

parole, and the prosecutor’s office would encourage the

parole board to parole him immediately. Id. at 175-77.

McKinnon also admitted that his family had been relocated

pursuant to the terms of the agreement. Id. at 178. He

denied having seen a recommendation supporting his entry

into the witness protection program, but was questioned

about some aspects of the program:

Q. Now, as part of relocating your family under the

Witness Protection Act has their moving expenses been

paid by the federal government?

A. No, sir.

Q. Have any moneys been paid to support your

family by the federal government under the Witness

Protection Act?

A. No, sir.

Q. Has any money been paid to you, even one

dollar, in way of services, rent, electric, heat,

telephone, or anything else, under the Witness

Protection Act?

A. No.

Q. Do you know--strike that. Were you told by your

attorneys that such benefits were available to persons

under the Witness Protection Act?

A. No.

Q. Did you have an understanding on your own,

regardless of what your attorneys told you, that you

might be eligible for certain payments in money or in

kind --

A. I didn’t know --

Q. -- by reason of your admission to the Witness

Protection Act?

A. I didn’t know exactly what that entailed.

27

Q. Didn’t you inquire, since you were getting that

as one of your concessions or assistance from the

State?

A. I haven’t been able to meet with the marshall

and he has not contacted me in reference to that.

Id. at 179-80.

Counsel did not inquire as to whether the State had

borne expenses on McKinnon’s behalf aside from the aegis

of the federal witness protection program. During the

remand hearing, the State produced a correspondence file

that contained two letters from the Office of the County

Prosecutor of Ocean County New Jersey to the Criminal

Investigation Division of the New Jersey State Police. The

first was dated February 4, 1985, a year to the day prior to

McKinnon’s testimony on cross-examination. It detailed

expenses of the investigation, and included the following

paragraphs:

In addition, we have been required to incur

substantial expenses in transporting the family of Billy

Wayne McKinnen [sic] to the State of New Jersey and

providing security for them until such time as

McKinnen [sic] is accepted in the federal witness

protection program. Expenses incurred for

transportation of the family to New Jersey, obtaining

temporary housing, doctors bills, food, heat and

utilities thus far are in the amount of $6921.10.

We are requesting that the New Jersey State Police

and/or the Garden State Parkway Authority reimburse

this office for one-half of these expenses or $3,460.55.

In addition to the already incurred expenses, we

must anticipate further expenses prior to trial of this

matter. These expenses consist of maintenance and

housing for the family of the defendant/witness, Billy

Wayne McKinnen [sic]. The expenses appear to be as

follows: monthly rent $500; heat $75; telephone $50;

food, clothing and miscellaneous $750; or a total of

$1300 per month expenses. We are requesting a

commitment from the New Jersey State Police and /or

the Garden State Parkway Authority that they will pay

28

50% of these anticipated costs for the next several

months.

PCR Appeal, Defendant-Appellant Appendix, Vol. 20,

Exhibit 36 at 2594a. The second letter was dated May 1,

1985, and stated in relevant part:

The family of Billy Wayne McKinnon (a key state’s

witness) has been relocated to New Jersey to assure

their safety, in view of the violent propensities of other

associates of McKinnon and co-defendant, Larry

Thompson.

We have thus far expended $9,456.45 to maintain

this family while awaiting trial of the matter and will be

faced with continuing costs approximately $1,000 per

month until trial of the matter, which is scheduled for

September 1985.

Id. at 2596a.

a. The Expense Letters

Marshall claimed that the expense letters were evidence

of additional favors received by McKinnon, and, as such,

were Brady material that could have been used to impeach

McKinnon’s credibility. The New Jersey Supreme Court

considered the merits of the claim, despite noting that the

letters were outside the scope of the remand hearing.

Marshall I, 586 A.2d at 195. The Court rejected Marshall’s

argument that the non-disclosure was material, in part

because of the extent of the cross-examination on the terms

of the plea agreement, and in part because the Court

deemed the evidence "merely cumulative." Id. at 195-96.

The District Court agreed. See Marshall III, 103 F. Supp. 2d

at 762.

Under the AEDPA standard, we ask only whether the

New Jersey Supreme Court reasonably applied Brady and

its progeny in concluding that the non-disclosure was

immaterial as a matter of law. We conclude that it did.

There is no question that McKinnon was a critical witness

to the prosecution, and that the information as to the

benefits received by his family was favorable to the defense

and could have been used in cross-examination. But there

29

is also no dispute that counsel’s cross-examination did

disclose some special favors from the government, and did

cause McKinnon to admit to lying on several occasions. In

his testimony McKinnon portrayed himself as a man who

was stringing Marshall along, intending to get from him as

much money as possible to murder Maria Marshall, and

then simply to walk away with the money. He testified that

he had never intended to allow Maria Marshall to be killed,

but that Thompson had confronted him, claiming that there

was a contract on McKinnon’s life because of an

"unfinished job." According to McKinnon’s testimony, he

thought Marshall had taken out the contract; it was on the

basis of that conversation that McKinnon "agreed" to let

Thompson murder Maria Marshall for him.

McKinnon provided many details of the trips to Atlantic

City that were independently corroborated by investigators,

and that he could not have known had he not met with

Marshall. Marshall complains that the information links

Marshall to McKinnon, but not Marshall to the crime. We

disagree. While Marshall admitted that he had hired

McKinnon, he had offered only that he was trying to trace

the missing winnings that he had given to Maria. Between

McKinnon’s testimony and the corroborating evidence, the

State was able to demonstrate that McKinnon had received

much more than the value of the purportedly missing

funds. Further, McKinnon’s testimony and the

corroborating evidence established that McKinnon was in

Atlantic City the day of Maria’s death, and that he received

money from Marshall on that day. Both of those pieces of

information were critical -- albeit circumstantial--

elements in challenging Marshall’s benign explanation for

his association with McKinnon, and they provided a basis

for inferring that Marshall’s motive for hiring McKinnon,

paying him large sums of money, and meeting with him

and paying him on the day of Maria’s death was, as

McKinnon testified, to arrange for Maria’s murder.

Marshall also claims that, since the evidence was not

merely repetitive of what was before the jury, the New

Jersey Supreme Court erred in concluding that it was

cumulative. He cites to Perdomo, where we stated:

30

The district court did not apply the correct standard

for measuring materiality at the sentencing hearing.

The court reasoned that the undisclosed information

was not material because the jury had ample

opportunity to evaluate [the witness’s] credibility due to

other damaging testimony that had been elicited

concerning the government payments to [the witness]

and his prior drug usage. Whether or not the jury has

had an opportunity to consider other impeachment

evidence is not the correct standard for determining

materiality of undisclosed information.

United States v. Perdomo, 929 F.2d 967, 972 (3d Cir. 1991).

In Perdomo, the impeachment evidence of former

convictions and a psychiatric examination was so

compelling that we concluded, "Seldom have appellate

judges seen such persuasive evidence that the availability

of information on a prior conviction could have made a

difference." Id. Here the evidence tends to indicate a

motivation for McKinnon to provide testimony, and to

provide testimony that the State finds satisfactory. But

those precise motivations were brought out graphically at

trial; it was clear after cross-examination that McKinnon’s

change of plea would not occur until after he had testified

and that at his change of plea the State would withdraw the

murder charge. Further, the jury was made aware that,

pursuant to his plea agreement, McKinnon’s sentence

would be no more than five years for this terrible murder;

in practical terms this meant that he either would serve no

more jail time, or would serve what little post-plea time he

did in a women’s institution, a place that counsel implied

offered McKinnon very favorable residential conditions.

From the face of the plea agreement and the cross-

examination, it was also clear that the prosecutor would

assist McKinnon’s entry into the federal witness protection

program. It could not help but be evident to the jury that

McKinnon’s testifying to the satisfaction of the State was

critical in determining McKinnon’s future. Indeed, the jury

apparently found McKinnon’s testimony about Thompson

incredible, since it acquitted him. Unlike in Perdomo, the

ongoing support to McKinnon’s family would not provide an

alternative or stronger incentive for his testimony. Marshall

also cites to two cases that he argues demonstrate that the

31

evidence could not have been cumulative because it was

not repetitive. We find those cases to be inapposite,

because they were discussing the admissibility of evidence,

not its materiality. See Elwood v. Pina, 815 F.2d 173, 178

(1st Cir. 1987); United States v. Ives, 609 F.2d 930, 933

(9th Cir. 1979).

b. The Witness Protection Program

Marshall further complains that it was unreasonable for

the New Jersey Supreme Court, on appeal from the denial

of post-conviction relief, to conclude that the prosecutor’s

failure to disclose information about McKinnon’s possible

cooperation with federal law enforcement agents was

immaterial. App. Br. at 90. We note first that the New

Jersey Supreme Court was skeptical about whether such

information existed, and particularly whether it existed

within the control of the prosecutorial team, reasoning only

that if the information existed, it would have been

immaterial. Marshall II, 690 A.2d at 38. The District Court

characterized Marshall’s request to develop the limited

information he has about the connection further as a

"fishing expedition." Marshall III, 103 F. Supp. 2d at 762.

In order to agree with Marshall, we would need to hold

the State accountable for knowledge possibly possessed by

the F.B.I. or other federal agents. There is no indication in

the record that the federal agents who might have

possessed such information were working together with

state agents investigating Maria Marshall’s death. Thus,

such a holding would require a further expansion of Brady,

possibly beyond what we would consider "clearly

established law" even now, and certainly beyond"clearly

established law" as of the time Marshall’s conviction

became final.13 Thus, we decline to hold that there was

_________________________________________________________________

13. The controlling case in this area, Kyles , was not decided until 1995.

In earlier cases, such as United States v. Antone, 603 F.2d 566 (5th Cir.

1979), federal and state authorities had pooled their efforts, such that

the Fifth Circuit Court of Appeals deemed it appropriate to consider both

part of a single prosecutorial team. Id . at 569-70. See also United States

v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991) (following Antone). In

contrast, where there was no pooling, even within a single jurisdictional

32

clearly established law requiring Brady disclosures in this

situation; consequently, we do not reach the question

whether the New Jersey Supreme Court’s determinations

were reasonable.

3. Combined Impact

While the New Jersey Supreme Court evaluated the

Brady claims individually on direct appeal, on appeal from

the denial of post-conviction relief, the Court recognized

that it was required to "consider the State’s non-disclosures

collectively, not item-by-item." Marshall II , 690 A.2d at 33.

Further, the "best objective test derives from an assessment

of the merits of the individual claims, combined with a

part-subjective, part-objective effort to extrapolate those

individualized assessments into an aggregate one." Id. at 90

(quoted in Appee. Br. at 65). The District Court also

employed a collective approach. Marshall III, 103 F. Supp.

2d at 775. We agree with the New Jersey Supreme Court

that a cumulative analysis begins at an analysis of the

individual claims, and then requires a court to view the

violations in the aggregate. We further agree that under

these facts, our confidence in the verdict is not shaken

when we weigh the impact of the jury’s properly considering

both the existence of the Kraushaar immunity agreement

and the payments to McKinnon’s family. In so concluding,

however, we do not in any way condone the actions of the

prosecutor in failing to provide the information in a timely

manner.

B. Prosecutorial Misconduct

Unlike cases in which a defendant alleges prosecutorial

misconduct with regard to an opening or closing statement,

or the questioning of one witness, on direct appeal Marshall

_________________________________________________________________

umbrella courts at least as recently as 1997 have noted that the "extent

to which knowledge may be imputed from one federal investigative

agency to another for Brady purposes is as yet unclear." United States

v. Zagari, 111 F.3d 307, 320 n.13 (2d Cir. 1997). While some courts do

impute the responsibility to disclose state documents to federal

prosecutors and vice versa, they do so in reliance on Kyles. E.g., United

States v. Wilson, 237 F.3d 827, 832 (7th Cir. 2001); In re Sealed Case

No. 99-3096 (Brady Obligations), 185 F.3d 887, 896 (D.C. Cir. 1999).

33

alleged "116 instances of prosecutorial misconduct in the

course of his trial," Marshall I, 586 A.2d at 164, instances

that Justice Handler, in his dissent, characterized as

"clearly deliberate" and "incurable." Id. at 212 (Handler, J.,

dissenting). These incidents span the course of both the

guilt and sentencing phases of Marshall’s trial. Marshall

has asked us to weigh both the number of instances of

misconduct and the alleged deliberate nature of the

misconduct, and to grant him a new trial on the basis of

the prosecutor’s actions.

It is beyond peradventure that all of the salient caselaw

argued to us by Marshall existed in February 1993 when

Marshall’s conviction became final. Berger v. United States

was decided in 1935, Griffin v. California in 1965, Donnelly

v. DeChristoforo in 1974, Doyle v. Ohio in 1976, Smith v.

Phillips in 1982, United States v. Young in 1985 and Darden

v. Wainwright in 1986.

In our analysis, we recognize that the United States

Supreme Court has drawn a distinction between

misconduct that, because of its capacity to divert the trier

of fact from the task before it, so undermines the reliability

of a verdict that it constitutes a due process violation (such

as the conduct at issue in Berger v. United States), and

misconduct that implicates a specific right guaranteed by

the constitution (such as that addressed by the Court in

Doyle v. Ohio). Marshall alleges both types. We will

accordingly discuss the alleged prosecutorial misconduct

from three vantage points. First, we shall ask whether the

alleged improprieties, other than those that implicated a

specific constitutional right, gave rise to a due process

violation (1., below). Second, we shall examine the alleged

violations of specific constitutional rights to determine

whether habeas relief is warranted (2., below). Third, we

will determine whether all of the foregoing, taken together,

amount to cumulative error such that Marshall is entitled

to habeas relief (3., below).

We note that, under AEDPA, our review is restricted. We

are assessing not whether we independently would

determine the misconduct to have been inappropriate, but

whether the New Jersey Supreme Court’s review applied the

appropriate United States Supreme Court precedent

34

reasonably. In order to make that assessment, we must

look at the conclusions and the analysis of the New Jersey

Supreme Court, and compare them to established United

States Supreme Court jurisprudence.

1. Misconduct Alleged to Violate Due Process but not

Implicating a Specific Constitutional Right

a. The Improprieties

In assessing Marshall’s charges that the prosecutor’s

actions rendered his trial unfair, we are guided by the

United Supreme Court’s instructions in Smith v. Phillips,

455 U.S. 209 (1982), where the Court reiterated the

perspective initially set forth in Cupp v. Naughten, 414 U.S.

141, 146 (1973):

Before a federal court may overturn a conviction

resulting from a state trial . . . it must be established

not merely that the [State’s action] is undesirable,

erroneous, or even "universally condemned," but that it

violated some right which was guaranteed to the

defendant by the Fourteenth Amendment.

Smith, 455 U.S. at 221. In Smith, the Court employed the

principles set forth in Brady v. Maryland and United States

v. Agurs, both of which involved a prosecutor’s non-

production of evidence, to elucidate the standard by which

prosecutorial misconduct must be measured, stressing that

"the touchstone of due process analysis in cases of alleged

prosecutorial misconduct is the fairness of the trial, not the

culpability of the prosecutor." Smith, 455 U.S. at 219. The

test is whether the conduct "so infected the trial with

unfairness as to make the resulting conviction a denial of

due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974). In examining what was done and its impact, we are

to look at the entire proceeding. See id.

On direct appeal, the New Jersey Supreme Court

evaluated the 116 alleged instances of misconduct, but

found only nine to be of arguable merit, of which seven

have been specifically raised before us on appeal. 14 We

_________________________________________________________________

14. Two instances of the prosecutor’s conduct that the New Jersey

Supreme Court found to be improper were not specifically raised and

35

agree with the New Jersey Supreme Court’s assessment.

The seven are:

i. Defense counsel questioned Marshall’s sister,

Oakleigh deCarlo, about the investigators’ visit to

Marshall’s home on September 21, 1984. On cross-

examination, the prosecutor repeatedly discussed with her

the fact that Marshall had not answered the investigators

because he had retained counsel. At one point, he went so

far as to say, "Especially when your wife has been killed

and you haven’t -- you didn’t have anything to do with it,

you still run out and hire an attorney?" Marshall I, 586

A.2d at 148. The New Jersey Supreme Court characterized

the prosecutor’s questioning as "the offensive and

impermissible suggestion that the retention of counsel is

incompatible with innocence." Id. The trial court sustained

counsel’s objection to the question, but Marshall contends

that the questioning required curative action by the court.15

This is argued in Marshall’s brief at 123-127, 128, 131.

ii. The prosecutor began his cross-examination of

Marshall by asking him whether he had heard the reference

_________________________________________________________________

argued in Marshall’s brief, and we decline to examine these on appeal.

One of these instances occurred in the prosecutor’s summation, when

the prosecutor referred to September 21, when investigators came to

Marshall’s home to question him about Davis and McKinnon. The

prosecutor’s comments, according to the New Jersey Supreme Court,

violated Marshall’s privilege against self-incrimination, but were

harmless beyond a reasonable doubt. Marshall I , 586 A.2d at 147. The

other occurred when the prosecutor was cross-examining Marshall and

intimated that his father-in-law was senile. The New Jersey Supreme

Court found the "implication . . . unsupported by any evidence in the

record . . . clearly improper," and that "[a] strong curative instruction by

the trial court would have been appropriate." Id. at 166.

We note as well that some of Marshall’s claims are stated only in

general terms, and others are peppered with references to more extensive

discussions in the Petition. See, e.g., App. Br. at 128, 130-31.

Arguments in passing and "casual statements" of issues are insufficient

to preserve them for consideration before us. See Interface Group-Nevada,

Inc. v. Trans World Airlines, Inc. (In re Trans World Airlines, Inc.), 145

F.3d 124, 133 (3d Cir. 1998) (listing cases).

15. This instance is also the subject of a separate attack as violative of

Marshall’s right to counsel.

36

in his opening statement to Marshall’s owing over

$300,000. When Marshall replied in the affirmative, the

prosecutor stated that he was "going to put some figures up

here and, if you disagree, I’d appreciate it if you let me

know so we can bring in the people from the banks who

gave me the figures to testify." Id. at 165. The New Jersey

Supreme Court found the remark improper, but harmless.

"The prosecutor’s statement that he would ‘bring in people

from the banks to testify’ was clearly improper. It implied

that the prosecutor’s characterization of defendant’s

finances was accurate, and would be supported by other

unidentified witnesses if contested by defendant." Id. at

165. This is raised in Marshall’s brief at 131-32.

iii. Again in summation, the prosecutor vouched for

McKinnon’s testimony. As the New Jersey Supreme Court

said, "The most critical issue at trial was the credibility of

Billy Wayne McKinnon." Id. at 166. The prosecutor said:

Ladies and gentlemen of the jury, in order to save

himself, Billy Wayne McKinnon had to tell the truth.

That was the deal. Because when he gave that

statement, we checked it out up and down and

sideways, and if we caught him in one lie -- and you

heard the testimony. He waived immunity. Everything

he said could be held against him. If we caught him in

one lie, then he would be facing a murder charge.

Id. at 167. In reviewing this statement, the New Jersey

Supreme Court noted: "Although the prosecutor was free to

argue that McKinnon’s testimony was credible, it was

improper for the prosecutor personally to vouch for his

credibility or to suggest that the truthfulness of his

testimony had been ‘checked out up and down and

sideways,’ obviously referring to matters outside the

record." Id. at 167. This is mentioned in Marshall’s brief at

131.

iv. Also during his summation, the prosecutor informed

the jury,

The bulk of that insurance was taken out in twelve-

month period before Maria Marshall’s death. I don’t

care if it’s accidental; I don’t care if it pertains to

getting killed in a car on a Thursday only. That

37

insurance was in effect, and he has the audacity to get

up here and talk about contestability clauses, to give

you the impression that he’s not going to get any of

that money. He’s already received six hundred

thousand dollars, and I can guarantee you, ladies and

gentlemen, if you acquit this defendant, the checks will

be in the mail within a week. Make no mistake about

it.

Id. Counsel objected, and after the prosecutor finished,

moved for a mistrial in part on the basis of the prosecutor’s

representation. The court denied the motion, but did issue

a curative instruction. "[T]he prosecutor’s assertions that

defendant had ‘already received six hundred thousand

dollars’ and that ‘I can guarantee you if you acquit this

defendant, the checks will be in the mail within a week,’

were obviously mischaracterizations of the testimony, and,

as such, highly improper." Id. at 168. This is discussed in

Marshall’s brief at 132.

v. The New Jersey Supreme Court characterized as

"among the most inflammatory portions of the prosecutor’s

summation" the prosecutor’s reference to the testimony of

Marshall’s sons:

And he has the audacity to bring in his three boys to

testify. That’s obscene. And I’m not being critical of

them, because I would probably do the same thing. To

put his boys on that witness stand is obscene, and for

that there’s a place in hell for him. He will use

anybody, he will say anything and he will do anything,

including his own family, to get out from under. And

that’s Robert Oakley Marshall. Make no mistake about

it.

Id. at 169. The trial court refused to grant a mistrial in

response to these comments, but did give a curative

instruction, which the New Jersey Supreme Court noted

"could have been more forceful, but . . . was adequate to

ameliorate any significant prejudice to defendant." Id. "The

prosecutor’s comments [about Marshall’s having his sons

testify on his behalf] were not merely ‘forceful and graphic,’

they were inflammatory and highly emotional, possessing

the capacity to anger and arouse the jury and thereby

38

divert them from their solemn responsibility to render a

verdict based on the evidence." Id. This is discussed in

Marshall’s Brief at 128-29.

vi-vii. In reviewing both the guilt and penalty phase, the

New Jersey Supreme Court noted that "[w]here . . . the

victim’s character has no bearing on the substantive issue

of guilt or the penalty to be imposed, the prosecution may

not comment on the evidence in a manner that serves only

to highlight the victim’s virtues in order to inflame the

jury." Id. at 170 (quoting State v. Williams, 550 A.2d 1172,

1203 (N.J. 1988). Two of the prosecutor’s statements-- one

in his guilt phase closing, and one in his penalty phase

statement -- crossed that line.

I didn’t know Maria Marshall, but I know and you

know that she loved her boys. I know and you know

that she loved her husband. For eight months that lady

knew that his afternoons were spent in the arms of

another woman. She continued to cook for him, she

continued to clean his clothes, she continued to keep

the house clean, she continued to make love with him,

because she loved him. She wanted to start all over.

She wanted to give him a second chance. She had a

right to live her life in full, to watch her boys continue

to grow, to watch them graduate from school, to get

married and have families of their own, but he tossed

it all away because of his desperation and his greed.

And that is Robert Oakley Marshall.

Id. at 169-70.

I really cannot think of anything more heinous in our

society than to, you know, hire somebody to kill

somebody else, let alone a family member; in this case,

your wife.

. . . .

Maria Marshall had no prior criminal history. Maria

Marshall was civic-minded, and this defendant did not

give her the option of thirty years.

Id. at 171.

The New Jersey Supreme Court found the guilt phase

argument within the category of inappropriate argument

39

but "much more circumscribed and far less emotional" than

those it had found improperly diversionary. Id . It thus

concluded that the remarks were harmless. As to the

penalty phase comments, the Court concluded:

Although the prosecutor was free to depreciate the

significance of defendant’s mitigating evidence, the

argument that the victim could claim the same

qualities relied on by the defendant is diversionary,

focusing attention away from the mitigating evidence

and emphasizing the lack of justification for the

homicide. We find the argument inappropriate, but

have no doubt that this isolated statement in the

prosecutor’s brief closing argument did not have the

capacity to affect the jury’s deliberative process.

Id. This is discussed in Marshall’s brief at 133-34.

In reviewing the claims of prosecutorial misconduct on

appeal for post-conviction relief, the New Jersey Supreme

Court noted that Marshall had characterized two additional

comments in the prosecutor’s opening statement as

misconduct. The Court concluded that, after review, all of

the claims were:

entirely without merit and do not warrant extended

discussion. Indeed, many of defendant’s claims are

mere restatements of claims rejected by this Court on

defendant’s direct appeal. In respect of most of the

claims in this category, defendant has failed to

demonstrate that the prosecutorial conduct in question

was improper. In the remaining instances, defendant

has not established that the State’s misconduct was

"so egregious that it deprived defendant of a fair trial."

Marshall II, 690 A.2d at 73 (internal citations omitted). The

District Court found that -- with regard to each of the

claims of prosecutorial misconduct Marshall raised before it

-- the conclusions of the New Jersey Supreme Court were

neither contrary to nor an unreasonable application of

United States Supreme Court precedent. See Marshall III,

103 F. Supp. 2d at 779-82.

40

b. Did the Misconduct Amount to a Due Process

Violation?

Marshall urges that the New Jersey Supreme Court

misapplied the United States Supreme Court’s precedent in

Berger v. United States, 295 U.S. 78 (1935), by determining

either that "no error" occurred, or that any error that did

occur was harmless. App. Br. at 134. In Berger , the United

States Supreme Court condemned the prosecutor’s

argument as "undignified and intemperate, containing

improper insinuations and assertions calculated to mislead

the jury." Id. at 85. The Court then enunciated the often-

cited standard by which prosecutors must abide:

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. As

such, he is in a peculiar and very definite sense the

servant of the law, the twofold aim of which is that

guilt shall not escape or innocence suffer. 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.

Id. at 88. But improper conduct is not, in itself, sufficient

to constitute constitutional error, even when -- as here --

that conduct is alleged to be both deliberate and pervasive.

Improper conduct only becomes constitutional error when

the impact of the misconduct is to distract the trier of fact

and thus raise doubts as to the fairness of the trial.16

Under these facts, the two dissenting justices on the New

Jersey Supreme Court would have held that the

_________________________________________________________________

16. We note that we only conduct a harmless error inquiry once we

decide that constitutional error did occur. Thus, we first examine

whether the misconduct so infected the trial as to render it unfair. See,

e.g., Darden v. Wainwright, 477 U.S. 168, 182 n.15 (1986).

41

prosecutor’s actions were so deliberate and so pervasive,

and that at least some of the actions were either not cured,

inadequately cured, or incurable by subsequent

instructions from the court, that the fairness of the

proceeding was threatened. For Justice Handler, the trial

itself was rendered suspect, while for Justice O’Hern, the

misconduct at the trial threatened the integrity of the

penalty proceeding. Marshall I, 586 A.2d at 212 (Handler,

J., dissenting); id. at 198-99 (O’Hern, J., concurring in part

and dissenting in part).17 Marshall relies heavily on the

reasoning of these two justices in his argument that we,

likewise, should deem the misconduct to have rendered his

trial unfair. App. Br. at 134. We cannot condone the

prosecutor’s conduct here, which amounted to repeated,

deliberate misconduct. But we believe that the majority of

the New Jersey Supreme Court was reasonable in analyzing

the impact that the conduct that amounted to

constitutional error might have had upon the proceedings,

thus looking at the "totality of the trial" in assessing

whether his trial was rendered unfair. Indeed, we would be

concerned if a court placed undue emphasis on the

deliberateness of a prosecutor’s actions, because the focus

on the prosecutor might distract a reviewing court from its

_________________________________________________________________

17. We note in addition that Justice O’Hern did not say that the

misconduct alone constituted constitutional error, but rather that the

misconduct, when weighed with the other errors at trial, was sufficient to

undermine his confidence in the outcome.

The dry curative instructions given by the trial court hardly sufficed

to dispel the visual image of a place in hell for defendant that the

prosecutor planted in the jurors’ minds. Those remarks were neither

accidental nor the result of the passion of a heated trial. They were

planned. Contemporary statements by the prosecution to the press

set forth in the record demonstrate that. I cannot conclude that

those instances of prosecutorial misconduct, weighed cumulatively

with the other instances of trial error and with the constitutional

error of non-disclosure of the promise of immunity made to Sarann

Kraushaar and the special expenses paid by the State for the

support of the McKinnon family, could not present at least a "real

possibility" that there would have been a sentence other than death.

Marshall I, 586 A.2d at 198-99 (O’Hern, J., concurring in part and

dissenting in part).

42

rightful focus upon the fairness of the trial itself. The

critical question in assessing constitutional error is to what

extent a defendant’s rights were violated, not the culpability

of the prosecutor. Smith, 455 U.S. at 219. Such an inquiry

requires a focus upon the reliability of the verdict and

whether the trial as a whole was rendered unfair. A

prosecutor’s deliberate acts might have no effect at all upon

the trier of fact, while acts that might be inadvertent could

serve to distract the jury from its proper task and thus

render a defendant’s trial fundamentally unfair.

A similar concern informs our reluctance to be swayed by

the "extensive" nature of the misconduct. In Berger, the

case that Marshall relies on, the United States Supreme

Court addressed the interaction of the evidence of guilt and

the impact on the jury of persistent misconduct:

In these circumstances prejudice to the cause of the

accused is so highly probable that we are not justified

in assuming its non-existence. If the case against

Berger had been strong, or, as some courts have said,

the evidence of his guilt "overwhelming," a different

conclusion might be reached. Moreover, we have not

here a case where the misconduct of the prosecuting

attorney was slight or confined to a single instance, but

one where such misconduct was pronounced and

persistent, with a probable cumulative effect upon the

jury which cannot be disregarded as inconsequential.

Berger, 295 U.S. at 89 (internal citations omitted). Here, the

New Jersey Supreme Court’s opinions are replete with

references to the overwhelming evidence of Marshall’s guilt.

In Moore v. Morton, 255 F.3d 95, 119 (3d Cir. 2001), we

read United States Supreme Court precedent as

establishing the principle that the stronger the evidence

against the defendant, the more likely that improper

arguments or conduct have not rendered the trial unfair,

whereas prosecutorial misconduct is more likely to violate

due process when evidence is weaker.

When evaluating Marshall’s claims, the New Jersey

Supreme Court cited not to federal law, but to New Jersey

precedent, State v. Ramseur, 524 A.2d 188, 290 (N.J.

1987), for its standard of constitutional error. Ramseur

43

itself cites to earlier New Jersey law, rather than the

applicable United States Supreme Court jurisprudence.

Rather than dwell on the New Jersey Supreme Court’s error

in applying its own precedent, however, we believe AEDPA

review requires a more nuanced approach in this situation.

Because we are examining to see whether the New Jersey

Supreme Court’s analysis "resulted in a decision" that was

either "contrary to, or involved an unreasonable application

of, clearly established Federal law," we believe that any

error that we find in the approach or specific analysis of the

Court must be tempered by our overall assessment as to

whether the result it reached is in fact consistent with

Supreme Court precedent.18 See 28 U.S.C. S 2254(d).

The New Jersey Supreme Court did inquire whether the

misconduct was such that it deprived the defendant of a

fair trial, which is consonant with the dictates of the United

States Supreme Court enunciated above. It also

consistently examined the statements to determine whether

_________________________________________________________________

18. The District Court, applying Darden, concurred with the New Jersey

Supreme Court, concluding that "the few improper comments made by

the prosecutor during his closing argument were not enough to have had

a substantial or injurious affect [sic] on the jury’s decision." Marshall III,

103 F. Supp. 2d at 781; see also id. at 776. It did not address the New

Jersey Supreme Court’s application of state law, but performed an

independent examination using federal law that arrived at the same

conclusion. We note that this situation is distinguishable from our

recent case of Everett v. Beard, 290 F.3d 500, 507-08 (3d Cir. 2002), in

which we held that the state court’s ruling should not be analyzed under

the AEDPA standard of review because it was not"clear from the face of

the state court decision that the merits of the petitioner’s constitutional

claims were examined in light of federal law as established by the

Supreme Court of the United States." Id. (emphasis omitted). In Everett,

the Pennsylvania courts did not address the petitioner’s due process

claim at all, and analyzed his ineffectiveness claim not under a

Strickland analysis, but under standards set by its own precedent,

different from those enunciated in Strickland . Rather than asking

whether counsel’s performance was objectively reasonable, the court

inquired whether the underlying claim was meritorious, then whether

"the course of action chosen by his counsel had no reasonable basis

designed to effectuate the client’s interests," and, finally, whether the

defendant was prejudiced. Id. at 506-07. By contrast, here the New

Jersey Supreme Court examined the merits of Marshall’s claims and

measured them against a standard that was consistent with federal law.

44

they challenged the core of Marshall’s defense, and

repeatedly evaluated the comments within the larger

context of the trial as a whole, asking whether prior

testimony, curative instructions, or the collateral nature of

the comments served to mitigate their impropriety,

particularly in the face of what it viewed as overwhelming

evidence produced by the State. This also is in keeping with

the teachings of the Supreme Court -- and our precedent

-- recited above.

The majority of the New Jersey Supreme Court found

that, for the most part, the misconduct either impacted a

collateral issue in the case, Marshall I, 586 A.2d at 166,

169, 171,19 was sufficiently remedied by the court’s curative

instructions, id. at 168, 169,20 was "of limited significance"

because it was adequately challenged by the defense, id. at

167, or was an isolated reference that did not "have the

capacity to affect the jury’s deliberative process," id. at 171.21

We agree that those conclusions are reasonable under

Berger and its progeny.

_________________________________________________________________

19. In one instance, the New Jersey Supreme Court appeared to collapse

the constitutional error and harmless error analysis: "Based on our

review of the prosecutor’s entire guilt-phase summation, we are satisfied

that those references to the victim that were unrelated to any

substantive issues were neither extensive nor inflammatory, and we find

them harmless beyond a reasonable doubt." Marshall I, 586 A.2d at 171.

20. "To the extent that we may discern, therefore, Supreme Court

precedent counsels that the reviewing court must examine the

prosecutor’s offensive actions in context and in light of the entire trial,

assessing the severity of the conduct, the effect of the curative

instructions, and the quantum of evidence against the defendant. There

are ‘some occurrences at trial [that] may be too clearly prejudicial for . . .

a curative instruction to mitigate their effect.’ In making this

determination, Supreme Court precedent requires the reviewing court to

weigh the prosecutor’s conduct, the effect of the curative instructions

and the strength of the evidence." Moore v. Morton, 255 F.3d 95, 107 (3d

Cir. 2001) (internal citations omitted).

21. In other words, it is not enough for the"concerns underlying our

reactions against improper prosecutorial arguments to the jury" to be

implicated; they must be implicated to the extent that "we conclude that

the jury’s deliberations were compromised." United States v. Young, 470

U.S. 1, 18 (1985).

45

Thus, the majority of the misconduct that we have

reviewed did not deprive Marshall of his right to a fair trial,

and we agree with the New Jersey Supreme Court’s

conclusions that no constitutional right was implicated;

accordingly, for those instances we do not reach the

question of whether the error was harmless. Two instances

of misconduct, however, implicated specific constitutional

guarantees and require further examination.22

2. Violations of Specific Constitutional Rights

Marshall claims the prosecutor’s misconduct violated two

specific rights -- his right to counsel and his right to call

witnesses -- both of which are rights that are specifically

guaranteed by the Sixth Amendment. The United States

Supreme Court has presumed that a due process violation

has occurred when prosecutorial misconduct implicates

specific rights guaranteed by the Bill of Rights. See Griffin

v. California, 380 U.S. 609 (1965); Doyle v. Ohio, 426 U.S.

610 (1976); see also Hassine v. Zimmerman, 160 F.3d 941

(3d Cir. 1998).23

The Supreme Court has only evaluated a presumptive

due process violation where a prosecutor misused a

defendant’s exercise of his Fifth Amendment right to remain

silent as evidence of guilt. See Griffin v. California, 380 U.S.

609 (1965); Doyle v. Ohio, 426 U.S. 610 (1976). However,

we think it clear that the same presumption applies when

other enumerated rights are implicated. See United States

v. Thame, 846 F.2d 200 (3d Cir. 1988); United States ex rel.

Macon v. Yeager, 476 F.2d 613 (3d Cir.), cert. denied, 414

U.S. 855 (1973).24 We analyze whether the constitutional

_________________________________________________________________

22. While the New Jersey Supreme Court found that one comment in the

prosecutor’s summation implicated Marshall’s privilege against self-

incrimination, Marshall has not specifically raised that ruling before us,

and we will not address it here.

23. As discussed in more detail later, though such misconduct

presumptively violates due process, there are exceptions. See Greer v.

Miller, 483 U.S. 756 (1987).

24. Some circuit courts of appeals have restricted their review under

AEDPA to United States Supreme Court decisions alone. See, e.g.,

Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998) (considering itself

46

right was violated, and if so, whether the error was

harmless. Marshall alleges two such violations: the

exchange by the prosecutor with DeCarlo about Marshall’s

retention of counsel and the prosecutor’s remarks about

Marshall’s calling of his sons as witnesses. We will examine

each in turn.

a. Right to Counsel

i. Did the New Jersey Supreme Court Properly

Conclude that the Error was of the Type Condemned

in Macon?

Oakleigh DeCarlo, Marshall’s sister, was questioned on

cross-examination about the visit police investigators made

to the Marshall home on September 21, 1984, to inquire

about the then newly discovered Louisiana contacts. Ms.

_________________________________________________________________

barred from examining "lower federal court decisions in deciding whether

the state decision is contrary to, or an unreasonable application of,

clearly established federal law"). We have concluded, however, that

decisions of federal courts below the level of the United States Supreme

Court may be helpful to us in ascertaining the reasonableness of state

courts’ application of clearly established United States Supreme Court

precedent, as well as "helpful amplifications" of that precedent. Moore v.

Morton, 255 F.3d 95, 105 (3d Cir. 2001) (quoting Matteo v.

Superintendent, SCI Albion, 171 F. 3d 877, 890 (3d Cir.) (en banc), cert.

denied, 528 U.S. 824 (1999)). We view our reliance on Thame and Macon

as such a "helpful amplification." And we think that other United States

Supreme Court precedent implicitly recognized the principle we iterated

in those cases.

In Donnelly, for example, the United States Supreme Court contrasted

the alleged error before it with the denial of the"benefit of a specific

provision of the Bill of Rights, such as the right to counsel" or the

constructive denial of such a right, citing to Griffin. Donnelly, 416 U.S.

at 643. Thus, while the United States Supreme Court has not had the

opportunity specifically to extend Griffin’s holding, it has recognized the

basis for our holding in Macon. Further, the New Jersey Supreme Court

itself stated that "we are fully in accord with the decisions of the federal

Courts of Appeals holding that a prosecutor’s statement suggesting that

retention of counsel is inconsistent with innocence impermissibly

infringes on a defendant’s constitutional right to counsel." Marshall I,

586 A.2d at 148.

47

DeCarlo was present. At trial, there was conflicting

testimony as to whether Marshall was asked whether he

knew certain names or was also shown photographs of the

Louisiana contacts. Defense counsel had sought -- and

received -- a ruling that the prosecutor could inquire as to

Marshall’s reaction to the photographs shown to him, but

not as to Marshall’s refusal to answer based on counsel’s

advice. App. Br. at 123-24. The prosecutor inquired of Ms.

DeCarlo whether the interview ended after Marshall was

shown the photographs.

PROSECUTOR: You didn’t hear him answer any

questions, did you, when they said --

DECARLO: Yes, I did.

PROSECUTOR: You did?

DECARLO: Yes.

PROSECUTOR: Answer their questions?

DECARLO: He answered a question.

PROSECUTOR: A question?

DECARLO: A question.

PROSECUTOR: One question?

DECARLO: One question.

PROSECUTOR: Then the conversation ended: is that

correct?

DECARLO: No. They said they had other questions and

he said, "I think I should have my lawyer here if you’re

going to ask any more questions."

PROSECUTOR: Did you say to him, "Hey, Rob. Why get

your lawyer. Your wife was murdered. Maybe these

people --"

Marshall I, 586 A.2d at 147. The above were characterized

by the New Jersey Supreme Court as verging on

infringement of the right to counsel, but brief and"not

dwell[ed] on." Id. at 148.

After the prosecutor completed his cross-examination,

Thompson’s counsel, Mr. Hartman, cross-examined

DeCarlo:

48

HARTMAN: You wouldn’t think it unreasonable that

if a person retained an attorney and was possibly

under suspicion that they should have their attorney

present?

DECARLO: Not at all. That’s why you hire them for

his advice.

Id. at 148. Hartman then asked Ms. DeCarlo if she thought

it unreasonable that a person under suspicion would want

their attorney present during questioning, and she

responded that that is why attorneys were hired. Then the

prosecutor resumed his cross-examination:

PROSECUTOR: Especially when your wife has been

killed and you haven’t -- you didn’t have anything to

do with it, you still run out and hire an attorney?

Id.

Marshall’s counsel objected to the question, and the

objection was sustained, but no curative instruction was

sought or given. The New Jersey Supreme Court noted that

what could be "characterized as a question only by a most

indulgent reading" required a "clear and forceful curative

instruction" by the court. Id. The New Jersey Supreme

Court characterized the prosecutor’s cross-examination of

DeCarlo as "a highly improper and inexcusable attempt . . .

to suggest that defendant’s retention of counsel was

inconsistent with his claim that he was innocent." Marshall

I, 586 A.2d at 147.

49

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51

ii. Was the Error Nonetheless Harmless?

In analyzing whether the prosecutor’s behavior

impermissibly "suggest[ed] that retention of counsel is

inconsistent with innocence," the New Jersey Supreme

Court applied a harmless error analysis, reasoning that all

courts of appeals to address the issue, except the Fifth

Circuit Court of Appeals, had done so, and that the Fifth

Circuit itself was inconsistent in whether it applied a per se

or harmless error analysis. Id. at 148-49. In examining the

prosecutor’s conduct for harmless error, the New Jersey

Supreme Court focused on our rationale in United States ex

rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973), where we

reversed the conviction in the face of a prosecutorial

comment that impinged upon the defendant’s right to

counsel, because the "credibility of the petitioner as a

witness was a central issue," given that "critical portions of

the evidence were disputed." Id. at 616.

The prosecutor’s conduct during Marshall’s trial was

distinguishable, according to the New Jersey Supreme

Court, for two reasons: the jury had already been made

aware that Marshall had retained counsel by the time the

episode in question had taken place, and had learned it

from Marshall himself; and "the evidence of defendant’s

guilt was so persuasive that it is virtually impossible to

conceive that this isolated comment by the prosecutor,

however reprehensible it may have been, could have

contributed significantly to the jury’s determination of

guilt." Marshall I, 586 A.2d at 149.

When the New Jersey Supreme Court considered the

same facts in its post-conviction relief review, it reiterated

that the remarks were harmless error, and it likewise

dismissed the possibility that they were evidence either of

the ineffectiveness of Marshall’s counsel (in not requesting

a curative instruction) or prosecutorial misconduct,

because there was no prejudice. Marshall II, 690 A.2d at

67-69. When presented with the habeas petition, however,

the District Court evaluated the claim as the New Jersey

Supreme Court had on direct appeal, and found that the

New Jersey Supreme Court’s analysis and conclusions were

neither unreasonable nor contrary to Supreme Court

jurisprudence. Marshall III, 103 F. Supp. 2d at 777-79. Like

52

the District Court, we will evaluate the reasonableness of

the New Jersey Supreme Court’s evaluation on direct

appeal.

Before us, Marshall contends that the prosecutor

"deliberately led" DeCarlo to the improper disclosure, and

that, indeed, "the prosecutor’s entire cross of DeCarlo was

aimed at these topics." App. Br. at 124. But the New Jersey

Supreme Court found that DeCarlo’s comment was

volunteered. Marshall I, 586 A.2d at 148. Whether

DeCarlo’s disclosure was instigated or voluntary is, we

believe, not clear. Thus we will not find the New Jersey

Supreme Court’s determination of the facts to be

unreasonable.

Marshall also, however, challenges the prosecutor’s

follow-up comments implying that if Marshall were

innocent, he would not have "run out and hire[d] an

attorney." Marshall I, 586 A.2d at 148. As noted above, the

New Jersey Supreme Court concluded that the comments

were constitutional error, but that they were harmless

under Chapman v. California, 386 U.S. 18 (1967).25 Under

Chapman, an error is harmless if there is no"reasonable

possibility that the evidence complained of might have

contributed to the conviction." Id. at 23 (quoting Fahy v.

_________________________________________________________________

25. In Hassine v. Zimmerman, 160 F.3d 941, 950-55 (3d Cir. 1998), we

stated that -- in reviewing a claim on habeas that is not governed by

AEDPA -- we would apply the harmless error standard set forth in Brecht

v. Abrahamson, 507 U.S. 619 (1993), regardless of whether the state

court applied the Chapman standard. Hassine, 160 F.3d at 952-53. In

Penry v. Johnson, 532 U.S. 782 (2001), the United States Supreme Court

did likewise under AEDPA, instructing us that, where courts find, using

the AEDPA analysis, that the state court unreasonably applied clearly

established federal law, and thus that an error occurred in the trial that

the state court did not evaluate as such, the habeas court is to apply

Brecht to evaluate whether that error is harmless. Id. at 795. That is not

the situation here, however. The New Jersey Supreme Court correctly

found an error, and applied Chapman to evaluate whether that error was

harmless. We need not determine whether, in such an instance, we

should review their application of Chapman or apply Brecht

independently, however, because here the error would be harmless

regardless of which standard applied. The District Court also found that

the error would be harmless under either standard. See Marshall III, 103

F. Supp. 2d at 778-79.

53

Connecticut, 375 U.S. 85, 86-87 (1963)). Further, the court

must be able to declare a belief that it was harmless

beyond a reasonable doubt. Id. at 24. The New Jersey

Supreme Court concluded that the impact of the

prosecutor’s line of questioning was ameliorated because

Marshall testified before DeCarlo and had himself disclosed

that he had retained counsel prior to the incident in

question. Marshall I, 586 A.2d at 149. "We reach that

conclusion in part because the jury knew from defendant’s

own testimony that he had retained counsel and did not

consider that conduct to detract at all from his claim of

innocence." Id. That reasoning, however, was secondary to

the Court’s conviction: "More important to our conclusion,

however, is that the evidence of defendant’s guilt was so

persuasive that it is virtually impossible to conceive that

this isolated comment by the prosecutor, however

reprehensible it may have been, could have contributed

significantly to the jury’s determination of guilt." Id.

In Marshall’s direct testimony at trial, he stated that his

office was searched during the weekend prior to his wife’s

memorial service, and that as a result of that action, he

consulted an attorney. Direct Testimony of Robert Marshall,

February 26, 1986, St. Ex. 28T at 107-09. Immediately

thereafter, Marshall discussed the visit paid him by the

investigators on September 21, when his sister was

present. Id. at 109-11. He denied being showed

photographs at that time. Id. at 110.

DeCarlo’s testimony occurred on February 24, 1986, two

days prior to Marshall’s testimony. Thus, Marshall had not

in fact disclosed his retention of counsel before she

testified. Rather, her testimony provided the initial

impression to the jury as to Marshall’s retention of counsel.

Accordingly, we cannot discount the impact of the

prosecutor’s statements on the basis of the jury’s

knowledge via Marshall’s testimony, as the New Jersey

Supreme Court did. DeCarlo had testified that the

investigators asked Marshall whether he knew "a couple of

names." Direct Testimony of Oakleigh DeCarlo, February

24, 1986, St. Ex. 27T at 118. She further testified that

Marshall was not shown any photographs at that time. Id.

54

From the beginning of the cross-examination, the

prosecutor was combative with DeCarlo. She had testified

that she had not heard one of the names asked by the

investigators. The first question that the prosecutor asked

was: "You didn’t hear him answer any questions, did you,

when they said --," to which DeCarlo responded that she

had heard Marshall’s response. Cross-Examination of

Oakleigh DeCarlo, February 24, 1986, St. Ex. 27T at 119.

Then the prosecutor asked whether the conversation ended,

to which DeCarlo replied that Marshall had said he should

have his attorney present if they were to ask more

questions. Id. The prosecutor started to ask whether

DeCarlo had said "Hey, Rob. Why get your lawyer. Your wife

was murdered. Maybe these people --," but when DeCarlo

attempted to answer, he cut her off. Id. Defense counsel

objected, and the prosecutor reframed his question:"Did

you say to your brother, ‘Rob, wait a minute. Don’t just

answer one question. Take a good look at these

photographs.’?" DeCarlo replied -- as Marshall would later

confirm -- that he was not shown any photographs at that

point. Id. at 120. The prosecutor then asked several

questions attempting to elicit whether DeCarlo had ever

stated that she could not tell whether Marshall was lying or

telling the truth, and concluded his cross-examination.

Thompson’s counsel then asked DeCarlo whether she

would think it unreasonable to want an attorney present if

possibly under suspicion. She replied: "Not at all. That’s

why you hire them for his advice." Id. at 122. The

prosecutor then asked again, "Especially when your wife

has been killed and you haven’t -- you didn’t have anything

to do with it, you still run out and hire an attorney?" Id.

The "question" was objected to, and the objection

sustained, and DeCarlo was permitted to step down.

The New Jersey Supreme Court properly considered the

weight of other evidence against Marshall in determining

that the error was harmless. See Brecht, 507 U.S. at 639.

However, as we noted, the New Jersey Supreme Court

stated that part of its determination was based on the fact

-- which is not actually a fact -- that Marshall’s testimony

that he had retained counsel lessened the impact that the

prosecutor’s questioning of DeCarlo had upon the jury. We

then must answer an additional question by looking at the

55

record: Considering the totality of DeCarlo’s testimony, was

it unreasonable for the New Jersey Supreme Court to

conclude that the disclosure that Marshall had hired

counsel -- absent the palliative ascribed by the Court of the

jurors’ having already heard from Marshall -- was harmless

beyond a reasonable doubt?

To answer that question, it is important to look at what

the United States Supreme Court reacted to in Griffin v.

California, 380 U.S 609 (1965), and Doyle v. Ohio, 426 U.S.

610 (1976), and what we reacted to in Macon. In Griffin, the

prosecutor used the defendant’s silence -- and his own

powerful oratory -- to convey that the defendant knew the

truth, but was wilfully withholding it from the jury.26

Further, the prosecutor’s words were compounded by the

court’s instructions -- consistent with California law -- that

the "jury could draw an inference unfavorable to the

defendant as to facts within his knowledge about which he

chose not to testify." United States v. Robinson, 485 U.S.

25, 30 (1988) (discussing Griffin, 380 U.S. at 610-15). In

Doyle, the prosecutor, on cross-examination of the

defendant, repeatedly denigrated Doyle’s assertions of

innocence.27 There, the trial court overruled objections and

_________________________________________________________________

26. As quoted by the Supreme Court, the prosecutor testified:

The defendant certainly knows whether Essie Mae had this beat up

appearance at the time he left her apartment and went down the

alley with her. What kind of a man is it that would want to have sex

with a woman that beat up if she was beat up at the time he left?

He would know that. He would know how she got down the alley. He

would know how the blood got on the bottom of the concrete steps.

He would know how long he was with her in that box. He would

know how her wig got off. He would know whether he beat her or

mistreated her. He would know whether he walked away from that

place cool as a cucumber when he saw Mr. Villasenor because he

was conscious of his own guilt and wanted to get away from that

damaged or injured woman. These things he has not seen fit to take

the stand and deny or explain. And in the whole world, if anybody

would know, this defendant would know. Essie Mae is dead, she

can’t tell you her side of the story. The defendant won’t.

Griffin, 380 U.S at 610-11.

27. The relevant prosecutorial questions are as follows:

56

allowed the prosecutor to argue the post-arrest silence in

closing. Doyle, 426 U.S. at 614. In Macon, the prosecutor in

his closing expressly tied the defendant’s retention of

counsel to the other circumstantial evidence of his guilt.28

There was no objection or requested instruction. We

concluded there that the error was not harmless, because

the verdict rested on a credibility determination, and the

comments "would appear to have been directed to, and may

have had the effect of, raising in the jurors’ minds the

inference that petitioner was, or at least believed himself to

_________________________________________________________________

"Mr. Wood, if that is all you had to do with this and you are

innocent, when Mr. Beamer arrived on the scene why didn’t you tell

him?"

"But in any event, you didn’t bother to tell Mr. Beamer anything

about this?"

"You are innocent? . . . . That’s why you told the police department

and Kenneth Beamer when they arrived -- . . . . about your

innocence?"

"You said nothing at all about how you had been set up?"

"As a matter of fact, if I recall your testimony correctly, you said

instead of protesting your innocence, as you do today, you said in

response to a question of Mr. Beamer, -- ‘I don’t know what you are

talking about.’ "

Doyle, 426 U.S. at 614 & n.5.

28. As quoted in our opinion, the relevant portions of the prosecutor’s

summation are:

"Then what does he do? He drives along and can’t tell us where. The

gun goes out the window. An act of innocence?"

"The car is left somewhere and he doesn’t remember where? An act

of innocence?"

"He goes home and puts the shirt down in the chest, a torn shirt.

Then he goes to bed. He says he had trouble sleeping. He gets up

the next morning and lo and behold, what does he do? He calls his

lawyer. These are acts of innocence?"

"I say, ladies and gentlemen, his story is implausible, impossible

and you can judge by his own conduct, unbelievable."

Macon, 476 F.2d at 614 (emphasis in original).

57

be, guilty. Such an inference might certainly tend to cause

the jury to disbelieve Macon’s version of the story." Macon,

476 F. 2d at 616-17. We believe that there are important,

though subtle, distinctions between the effect of the

prosecutor’s actions in these cases and in the one before

us.

First, in Griffin, Doyle, and Macon, the prosecutor

attacked the defendant directly. Here, the attack was

indirect. Second, in each of the above cases, the prosecutor

was allowed to wax eloquent without challenge or

interruption, while here Marshall objected -- and the

objection was sustained -- three times in the brief

interchange between the prosecutor and DeCarlo. Finally,

in part because both the direct and cross examination were

brief, it was very obvious, even to us on a cold record, that

the prosecutor was, for whatever reason, attempting to

twist all of DeCarlo’s testimony -- intimating that she did

not hear Marshall’s answer when she had testified that she

did not hear one of the names asked by the investigator;

asking her why she didn’t ask Marshall to examine the

photographs when she had already testified that he hadn’t

been shown any -- and we think that the way the

prosecutor formulated the questions: "Didn’t you ask him

. . ." would have been perceived as yet further attempts to

badger and twist the testimony of a minor witness.

When all three factors are considered in combination, we

cannot find the prosecutor’s questions and comments,

improper though they were, to support -- as they did in as

in Griffin, Doyle, and Macon-- a clear inference that the

exercise of the constitutional right was itself evidence of the

defendant’s guilt. Thus, we concur in the New Jersey

Supreme Court’s conclusion that the error was harmless.

b. Right to Call Witnesses

i. Did the New Jersey Supreme Court Properly

Conclude that the Error was Not of the Type

Condemned in Macon?

The remarks in question were quoted by the New Jersey

Supreme Court:

58

And he has the audacity to bring in his three boys to

testify. That’s obscene. And I’m not being critical of

them, because I would probably do the same thing. To

put his boys on that witness stand is obscene, and for

that there’s a place in hell for him. He will use

anybody, he will say anything and he will do anything,

including his own family, to get out from under. And

that’s Robert Oakley Marshall. Make no mistake about

it.

Marshall I, 586 A. 2d at 169.

Marshall raises these remarks before us twice, once by

citing to the relevant portions of the dissent and including

these remarks among those to be analyzed under Berger

and Darden, App. Br. at 129-30, 132, and earlier, when

Marshall discusses the infringement of the right to counsel

discussed above. There, he states specifically that the right

to counsel should be evaluated in conjunction with other

misconduct "including the prosecutor’s telling the jury in

summation that there is a place in hell for Robert Marshall

for exercising his 6th Amendment right to call his sons as

witnesses." App. Br. at 127. The majority of the New Jersey

Supreme Court did not directly address the contention that

the prosecutor’s comments were tantamount to a denial of

Marshall’s right to call witnesses, stating merely that:

Arguably, defendant’s sons’ testimony concerned only

peripheral aspects of the case -- except for that of

Robbie Marshall who stated that defendant was at

home at noon on September 6, 1984, the time,

according to McKinnon, that he and defendant met on

the Garden State Parkway. Thus, it was not

unreasonable for the prosecutor to have implied that

defendant’s sons had been called as witnesses not so

much for the substance of their testimony but because

their mere presence as witnesses would suggest

support for their father, support that would have been

unwarranted if defendant had participated in the

murder of their mother. Thus, in emotional and

inflammatory terms, the prosecutor expressed his

revulsion at what he perceived as defendant’s ‘using’

his sons in order to gain an acquittal . . . . Although

the prosecutor’s remarks went beyond the boundaries

59

of permissibly forceful advocacy, we note that their

focus was on a distinctly collateral aspect of the trial,

not on a critical and contested issue of fact. We

acknowledge that the trial court’s curative instruction

could have been more forceful, but we are satisfied that

it was adequate to ameliorate any significant prejudice

to defendant.

Marshall I, 586 A.2d at 169.

It is beyond dispute that the right to call witnesses is

protected by the Sixth and Fourteenth Amendments."Few

rights are more fundamental than that of an accused to

present witnesses in his own defense. Indeed, this right is

an essential attribute of the adversary system itself." Taylor

v. Illinois, 484 U.S. 400, 408 (1988) (internal citations

omitted). But even though the prosecutor’s misconduct in

this instance did touch on Marshall’s exercise of a

constitutional right, we conclude that the court’s curative

actions rightly kept the offending statements from the

consideration of the jurors, and thus, that consonant with

the United States Supreme Court’s holding in Greer v.

Miller, 483 U.S. 756 (1987), there was no violation of

Marshall’s right to call witnesses.

As the United States Supreme Court characterized Doyle,

the harm lay in using the defendant’s constitutionally

guaranteed silence to impeach him at trial. Greer, 483 U.S.

at 763. In Greer, a question was asked, counsel objected,

and the court sustained the objection and instructed the

jury to disregard questions that had been objected to if the

objection had been sustained. Id. at 764. Thus, "[t]he fact

of Miller’s postarrest silence was not submitted to the jury

as evidence from which it was allowed to draw any

permissible inference, and thus no Doyle violation occurred

in this case." Id. at 764-65.

While the prosecutorial comments here are nowhere near

as benign as the single prosecutorial question at issue in

Greer, we think that Greer’s holding is controlling. Here, as

in Greer, the comments the prosecutor made regarding

Marshall’s sons were at a single point in a long trial.

Though they were more inflammatory -- indeed,"[a]mong

the most inflammatory portions of the prosecutor’s

60

summation," "possessing the capacity to anger and arouse

the jury and thereby divert them from their solemn

responsibility to render a verdict based on the evidence,"

Marshall I, 586 A.2d at 168, 169 -- the trial court

instructed the jury specifically to disregard the prosecutor’s

comments: "A defendant in a criminal case has a right to

bring in any witnesses or subpoena or bring in any other

way any witnesses to testify on his behalf, and no adverse

inferences should be drawn against the defendant merely

because his sons testified as witnesses on his behalf." Id. at

169. The Court also instructed the jurors to disregard the

reference to "a place in hell."29 Id. Indeed, the instructions

here were specifically directed at the prosecutor’s

statement, unlike the general instructions that the Court

upheld in Greer.

As Greer stressed, we are to "presume that a jury will

follow an instruction to disregard inadmissible evidence

inadvertently presented to it, unless there is an

‘overwhelming probability’ that the jury will be unable to

follow the court’s instructions, and a strong likelihood that

the effect of the evidence would be ‘devastating’ to the

defendant." Greer, 483 U.S. at 767 n.8. Thus, the fact that

Marshall called his sons as witnesses was "not submitted to

the jury as evidence from which it was allowed to draw any

permissible inference." Id. at 764-65.

The New Jersey Supreme Court concluded that the

prosecutor’s statements were not directed at "a critical and

contested issue of fact" and that the trial court’s curative

instructions were "adequate to ameliorate any significant

prejudice to defendant." Marshall I, 586 A.2d at 169.

Although the New Jersey Supreme Court should have

evaluated this misconduct to determine if there was a

violation under Doyle, its conclusions are essentially the

same as those we reach independently applying the proper

framework, and we find no constitutional error.

Accordingly, we will not disturb its conclusions. 30

_________________________________________________________________

29. Also as in Greer, the trial court denied Marshall’s motion for a

mistrial on the basis of the prosecutor’s actions. Id.

30. Because we find that there was no constitutional error, we do not

need to reach the question of whether any error was harmless.

61

3. Accumulation of Error

The New Jersey Supreme Court also evaluated the right

to counsel claim separately from the other claims of

prosecutorial misconduct, and Marshall complains

vociferously that, if the instances of prosecutorial conduct

that were found to be improper by the New Jersey Supreme

Court were considered together, there would be error that

would render the trial unfair and not be harmless. App. Br.

at 127. Further, he alleges that the nondisclosure of

Kraushaar’s immunity agreement should be factored in as

well. Id. As stated above, Marshall is correct that error

attributed to prosecutorial misconduct is accumulated for

the purposes of the Chapman analysis. Lesko v. Lehman,

925 F.2d 1527, 1541 (3d Cir. 1991). Indeed, in Chapman

itself, the cumulative effect of the error was weighed

together.

Thus, the state prosecutor’s argument and the trial

judge’s instruction to the jury continuously and

repeatedly impressed the jury that from the failure of

petitioners to testify, to all intents and purposes, the

inferences from the facts in evidence had to be drawn

in favor of the State -- in short, that by their silence

petitioners had served as irrefutable witnesses against

themselves. And though the case in which this

occurred presented a reasonably strong "circumstantial

web of evidence" against petitioners, it was also a case

in which, absent the constitutionally forbidden

comments, honest, fair-minded jurors might very well

have brought in not-guilty verdicts. Under these

circumstances, it is completely impossible for us to say

that the State has demonstrated, beyond a reasonable

doubt, that the prosecutor’s comments and the trial

judge’s instruction did not contribute to petitioners’

convictions. Such a machine-gun repetition of a denial

of constitutional rights, designed and calculated to

make petitioners’ version of the evidence worthless, can

no more be considered harmless than the introduction

against a defendant of a coerced confession.

Chapman, 386 U.S. at 25-26 (internal citations omitted). It

is also true, as noted above, that in Brecht v. Abrahamson,

the United States Supreme Court did not preclude the

62

possibility that "in an unusual case, a deliberate and

especially egregious error of the trial type, or one that is

combined with a pattern of prosecutorial misconduct, might

so infect the integrity of the proceeding as to warrant the

grant of habeas relief, even if it did not substantially

influence the jury’s verdict." Brecht, 507 U.S. at 638 n.9.

But the essence of Chapman is that a prosecutor’s

misconduct is not harmless when it renders the defendant’s

"evidence worthless." Chapman, 386 U.S. at 26. Here, none

of the misconduct properly before the jury undermined the

integrity or fairness of the proceeding. While the United

States Supreme Court has not clarified what might

constitute an "unusual case," we do not think that the

single instance of constitutional error -- the prosecutor’s

questioning of DeCarlo -- at Marshall’s trial could suffice.31

C. Fourth Amendment and Statutory Violations

After Marshall recorded the tapes to his brother-in-law,

who was also an attorney, and to his secretary and sons in

his motel room at the Best Western, he put stamps on the

envelopes and took two packages to the front desk and

placed them in a container designated for outgoing mail.32

_________________________________________________________________

31. New Jersey law appears more willing than federal law to assess the

accumulation of errors without first evaluating each separately:

The accused, no matter how abhorrent the offense charged nor how

seemingly evident the guilt, is entitled to a fair trial surrounded by

the substantive and procedural safeguards which have stood for

centuries as bulwarks of liberty in English-speaking countries. This,

of course, does not mean that the incidental legal errors, which

creep into the trial but do not prejudice the rights of the accused or

make the proceedings unfair, may be invoked to upset an otherwise

valid conviction; . . . . Where, however, the legal errors are of such

magnitude to prejudice the defendant’s rights or, in their aggregate

have rendered the trial unfair, our fundamental constitutional

concepts dictate the granting of a new trial before an impartial jury.

State v. Orecchio, 106 A.2d 541, 542 (N.J. 1954) (internal citations

omitted); see also State v. Rose, 548 A.2d 1058 (N.J. 1988) (finding

prosecutorial misconduct during the penalty phase, in sum, sufficient to

reverse a death sentence). But we are decidedly not in a position to

review the New Jersey Supreme Court’s application of its own law.

32. In the record, there is much dispute as to whether the container in

question was an open tray or a closed box with a slotted lid. The New

63

Alerted by hotel personnel, police who were surveilling

Marshall awakened him, and he was taken to a hospital,

and later to a psychiatric hospital. The police, claiming that

the envelopes were in plain sight, with the topmost package

bearing the words "To be Opened Only in the Event of my

Death," retrieved the packages and later secured warrants

to examine their contents. The tapes that were found

pursuant to those warrants were played at trial, over

Marshall’s protest that the search of the mail depository

and the seizure of the tapes violated his Fourth Amendment

rights. Before the District Court, and now before us,

Marshall also claims that the police actions violated federal

statutes. The District Court concluded that the federal

statutes and regulations Marshall cited were inapplicable

because the United States Postal Service never had custody

of the envelope. Marshall III, 103 F. Supp. 2d at 784. It

further concluded that Marshall had a full and fair

opportunity to litigate his Fourth Amendment claims before

the state courts, and that habeas review was barred by the

United States Supreme Court’s holding in Stone v. Powell,

428 U.S. 465 (1976). Marshall III, 103 F. Supp. 2d at 785.

Before we can reach the merits of these claims, we must

determine whether we should address them at all. Two

issues are presented to us: Are we barred from considering

statutory, non-constitutional claims under AEDPA? And

does Stone v. Powell, which prohibits us from examining

Fourth Amendment claims that have been fully and fairly

litigated in state courts, bar our consideration of the Fourth

Amendment claims?

1. Statutory claims under AEDPA

In his brief on direct appeal to the New Jersey Supreme

Court, Marshall cited to the United States Postal Service’s

Domestic Mail Manual in support of his argument that there

was a Fourth Amendment expectation of privacy in his

letters and that the search warrant must have been

executed by a federal (not a state) officer. The New Jersey

_________________________________________________________________

Jersey courts found that the container was an open tray. Later evidence

calls that conclusion into question, but for our purposes what depository

was used is immaterial.

64

Supreme Court rejected those contentions because the

envelope was not "within the custody of the postal

authorities at the time of the seizure" and "[t]he statute

does not limit search warrants to those issued by federal

judges or magistrates." Marshall I, 586 A.2d 118. The

District Court appeared to extend this reasoning to the

additional statutes cited by Marshall before it: 5 U.S.C.

S 301, 39 U.S.C. SS 201, 404(a)(1) and 3623(d). See Marshall

III, 103 F. Supp. 2d at 783-84.

We conclude that we do not have jurisdiction to entertain

Marshall’s complaint as to the District Court’s

determination of his statutory claims. In Slack v. McDaniel,

529 U.S. 473 (2000), the Supreme Court noted that 28

U.S.C. S 2253(c)), that section of AEDPA that governs our

ability to issue a COA to review a District Court’s

adjudication of the claims of a habeas petition, states

explicitly that "a COA may not issue unless ‘the applicant

has made a substantial showing of the denial of a

constitutional right.’ " 529 U.S. at 483. In that section, as

Slack explains, Congress codified the standard of Barefoot

v. Estelle, 463 U.S. 880, 894 (1983), except that Barefoot

only required the denial of a federal right, while AEDPA

requires the denial of a constitutional right. Slack, 529 U.S.

at 483.

While the Seventh Circuit Court of Appeals has extended

Slack -- and in our view, the explicit language of the

statute as well -- to allow "independently substantial

statutory issue[s]" to "come along for the ride" if there is a

"substantial constitutional question" within the case,

Ramunno v. United States, 264 F.3d 723, 725 (7th Cir.

2001), we refuse to deviate from Congress’s express terms.

In United States v. Cepero, 224 F.3d 256, 262-63, 267 (3d

Cir. 2000), we construed Slack and the plain language of 28

U.S.C. S 2253(c)) to deprive us of jurisdiction to hear

statutory questions pursuant to habeas appeals. In

response to "the ad terrorem argument that the defendant

is thereby totally denied the opportunity to appeal

nonconstitutional issues, the short answer is that Congress

has indicated that these issues must be presented in the

direct appeal from the conviction." Id. at 265.33 Marshall did

not, and he cannot now raise them here.

_________________________________________________________________

33. The premise that nonconstitutional claims are waived if not raised on

direct appeal is, of course, unremarkable and well settled law. See, e.g.,

65

2. Stone v. Powell and the Fourth Amendment Bar

In Stone v. Powell, 428 U.S. 465 (1976), the Supreme

Court examined the nature of the exclusionary rule, which

it characterized as a "judicially created means of

effectuating the rights secured by the Fourth Amendment"

and balanced its utility as a deterrent against the risk of

excluding trustworthy evidence and thus "deflect[ing] the

truthfinding process." Id. at 482, 490. Finding that, as to

collateral review, the costs of the exclusionary rule

outweighed the benefits of its application, the Court

concluded that "where the State has provided an

opportunity for full and fair litigation of a Fourth

Amendment claim, a state prisoner may not be granted

federal habeas corpus relief on the ground that evidence

obtained in an unconstitutional search or seizure was

introduced at his trial." Id. at 494. While the federal courts

are not thus deprived of jurisdiction to hear the claim, they

are -- for prudential reasons -- restricted in their

application of the exclusionary rule. Id. at 494 n.37.

Seeking to avoid this restriction, Marshall seizes upon

the qualifying phrase in Stone, "where the State has

provided an opportunity for full and fair litigation," and

argues that he has not had an opportunity for full and fair

litigation, and thus, that the bar of Stone v. Powell should

not apply.34 Appellant’s Memorandum of Law in Support of

Application for Certificate of Appealability 131-143.

_________________________________________________________________

Sunal v. Large, 332 U.S. 174, 178-79 (1947) (cited in Stone v. Powell,

428 U.S. 465, 478 n.10 (1976)).

34. Marshall also raises two additional arguments: that Stone v. Powell

should not be applied in a capital case, since the Supreme Court has

consistently recognized that "death is different," (App. Memorandum in

Law in Support of Application for Certificate of Appealability at 129-31)

and that the letter addressed to his brother-in-law, who was also an

attorney, implicated his Sixth Amendment right, and thus was protected

by attorney-client privilege and not governed by Stone by virtue of

Kimmelman v. Morrison, 477 U.S. 365, 382-83 (1986) (refusing to apply

Stone’s bar when Sixth Amendment claims were tied to a Fourth

Amendment issue). But we find both of Marshall’s arguments

unpersuasive here.

66

We have recognized that there may be instances in which

a full and fair opportunity to litigate was denied to a habeas

petitioner, but this is not one of them. This is not a case

where a structural defect in the system itself prevented

Marshall’s claim from being heard. See, e.g., Boyd v. Mintz,

631 F.2d 247, 250-51 (3d Cir. 1980); see also Gilmore v.

Marks, 799 F.2d 51, 57 (3d Cir. 1986) (observing that a

state’s "failure to give at least colorable application of the

correct Fourth Amendment constitutional standard" might

amount to a denial of the opportunity for full and fair

litigation). An erroneous or summary resolution by a state

court of a Fourth Amendment claim does not overcome the

bar. Id. And, as the District Court correctly assessed,

Marshall III, 103 F. Supp. 2d at 785-86, Marshall is at most

_________________________________________________________________

There is nothing within the language of Stone v. Powell itself upon

which to base a distinction between capital and non-capital collateral

review. We have applied Stone without hesitancy to capital cases. See,

e.g., Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir.), cert. denied, 512

U.S. 1230 (1994). Indeed, the principles of comity that underlie Stone v.

Powell, as well as the cost-benefit analysis postulated in Stone -- i.e., the

deterrent value vis-a-vis those tempted to violate the proscriptions

against illegal search and seizure weighed against the risk that risk that

trustworthy evidence would be excluded -- militate against the

distinction Marshall would have us draw.

Here, the New Jersey Supreme Court found that the relationship

between Marshall and his brother-in-law was not primarily an attorney-

client relationship. Further, the legal relationship between the Sixth

Amendment and Fourth Amendment claim are distinguishable from the

situation in Kimmelman, on which Marshall relies. There, adjudication of

the Sixth Amendment claim would have been foreclosed if there could be

no determination whether the underlying Fourth Amendment claim was

meritorious. Kimmelman, 477 U.S. at 375. Here, in contrast, Marshall

seeks to demonstrate that the Fourth Amendment violation was more

egregious because it also implicated a Sixth Amendment right.

Additionally, the New Jersey Supreme Court found that the tape was

sent to his brother-in-law in a family capacity and that, although his

brother-in-law had on occasion provided advice, the police were on

notice that Marshall had retained counsel and that all legal

representations in the investigation had been made by that counsel, not

by Marshall’s brother-in-law. Given our deferential review of the state

courts’ findings of facts, we will not disturb this conclusion.

67

alleging that the Fourth Amendment claims were decided

incorrectly or incompletely by the New Jersey courts,

allegations which are insufficient to surmount the Stone

bar.

Marshall tries to argue that a full and fair litigation

would require consideration of the salient United States

Supreme Court precedent, and he raises a very old decision

that he argues should have controlled the New Jersey

Supreme Court’s decision. App. Br. at 140-41. See Rosen v.

United States, 245 U.S. 467, 468 (1918). We do not need to

decide on these facts what would be sufficient to constitute

a "denial of opportunity for full and fair litigation," and

because the holding of Rosen is clearly not controlling here

we will not fault the New Jersey courts for failing to apply

it. We are satisfied that there was no structural defect that

prevented the full and fair litigation of Marshall’s Fourth

Amendment claims in state court, and we are thus barred

from reconsidering them here. In retrospect, and in light of

our determination of the Fourth Amendment and related

statutory claims, we acknowledge that the COA was

improvidently granted as to those issues and it will

therefore be dismissed.

D. Murder for Hire: As both an element of the crime and an

aggravating circumstance?

Marshall brings an as-applied challenge to New Jersey’s

death penalty statute, alleging that it violates the Eighth

Amendment in its application to his crime. The aggravating

factor relied on by the State -- that Marshall arranged the

murder for pecuniary gain -- duplicated an element of the

underlying offense. As Marshall correctly states, the United

Supreme Court has held that the Constitution requires a

capital sentencing scheme "genuinely [to] narrow the class

of persons eligible for the death penalty and . . . reasonably

[to] justify the imposition of a more severe sentence on the

defendant compared to others found guilty of murder." Zant

v. Stephens, 462 U.S. 862, 877 (1983). As the New Jersey

Supreme Court correctly noted, the United States Supreme

Court held in Lowenfield v. Phelps, 484 U.S. 231 (1988),

that it may be permissible for an aggravating factor to

duplicate an element of the underlying offense. See

Marshall I, 586 A.2d at 155. Although Marshall criticizes

68

the New Jersey Supreme Court for failing to reference Zant,35

we find no fault in the New Jersey Supreme Court’s

evaluating more recent United States Supreme Court

precedent, and referring to its own caselaw which

interpreted the earlier United States Supreme Court

precedent, including Zant, instead. More recently, we had

the opportunity to consider a similar challenge to

Delaware’s capital sentencing structure, and there we noted

that, after Lowenfield, the "courts of appeals have

consistently held that a sentencing jury can consider an

element of the capital offense as an aggravating

circumstance even if it is duplicitous [sic]." Deputy v.

Taylor, 19 F.3d 1485, 1502 (3d Cir. 1994).

Marshall alleges that the homicide statute itself is

broadly drafted, encompassing "virtually every murder

committed either ‘purposely’ or ‘knowingly.’ " App. Br. at

135. Marshall contends that since his conviction was for

hiring someone to murder his wife, and since the

aggravating factor duplicated the elements of the

underlying crime itself, there was no possibility for

narrowing or for channeling the jury’s discretion. The

United States Supreme Court addressed a similar

contention in Arave v. Creech, 507 U.S. 463 (1993).

_________________________________________________________________

35. In fact, Marshall urges us not to apply AEDPA to our examination of

this question, since "the New Jersey Supreme Court did not engage in

any meaningful analysis of this claim, failing even to cite to Zant." App.

Br. at 138. Marshall misapprehends the duty of the state court. Its duty

is to apply the "correct governing legal principle" reasonably. [Terry]

Williams v. Taylor, 529 U.S. 362, 413 (2000). It does not have to recite

a specific case name in order to apply the principles enunciated within

that case. By referring to its earlier analysis of the precise issues raised

by Marshall in State v. Ramseur, 524 A.2d 188, 218-220 (N.J. 1987), an

opinion that does discuss the requirements of Zant v. Stephens, 462 U.S.

862 (1983), in addition to other pertinent United States Supreme Court

jurisprudence, including Furman v. Georgia, 408 U.S. 238 (1972), and

Gregg v. Georgia, 428 U.S. 153 (1976), and by considering the impact of

the United States Supreme Court opinion rendered in the interim

between its decision in Ramseur and its consideration of Marshall’s

claims, Lowenfield v. Phelps, 484 U.S. 231 (1988), the New Jersey

Supreme Court did all that it was required to do for us to apply AEDPA

deference.

69

When the purpose of a statutory aggravating

circumstance is to enable the sentencer to distinguish

those who deserve capital punishment from those who

do not, the circumstance must provide a principled

basis for doing so. If the sentencer fairly could

conclude that an aggravating circumstance applies to

every defendant eligible for the death penalty, the

circumstance is constitutionally infirm.

Id. at 474 (emphasis in original) (internal citations omitted).

Applying Arave’s standard, however, it is clear that the

New Jersey legislature had a right to establish a motive (for

pecuniary gain) as more culpable than other motives, and

to determine that a motive-specific factor would narrow the

class of death-eligible murderers and would provide a

principled consideration for jurors to weigh in making an

individualized determination at the capital sentencing

phase. That one of the means by which a person may

commit murder with this motive is to hire someone else

actually to execute the crime is immaterial to the limiting

analysis.

The strictures of the United States Constitution do not

require New Jersey to assign a constitutionally mandated

function to aggravating circumstances, but to design a

scheme that both narrows the class of death-eligible

defendants and channels the jury’s discretion to ensure

that a death-eligible defendant is not sentenced to death

arbitrarily or capriciously.36 Here there can be no question

that the New Jersey legislature required sufficient

culpability to withstand constitutional scrutiny. The New

Jersey Supreme Court so held in Ramseur, and it was not

unreasonable for the New Jersey Supreme Court to rely

upon its detailed analysis in that opinion, and upon the

more recent United States Supreme Court jurisprudence, in

its consideration of Marshall’s claim.

_________________________________________________________________

36. We note as well that Marshall did undergo a proportionality review,

characterized in a Harvard Law Review article as"an additional fail-safe."

Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections

on Two Decades of Constitutional Regulation of Capital Punishment, 109

HARV. L. REV. 355, 373 (1995).

70

E. Guilt Phase Ineffectiveness

Marshall cites before us nine separate ways in which he

contends his counsel was ineffective during the guilt phase

of the trial. The State counters that Marshall’s"litany of

purported inadequacies is merely a lengthy series of

inconsequential minutiae." Appee. Br. at 76. As both

parties recognize, claims of ineffective assistance of counsel

are governed by Strickland v. Washington, 466 U.S. 668

(1984), and its progeny, although Marshall contends that,

while the New Jersey Supreme Court correctly identified

Strickland as controlling, it "both misconstrued and

unreasonably applied" it. Marshall contends that he "has

been afforded virtually no process on his ineffective-

assistance claim." App. Br. at 99. As the State notes,

Marshall originally raised claims of ineffectiveness in his

direct appeal brief, and then raised "more than 300 claims

in all" on appeal from the denial of post-conviction relief.

Appee. Br. at 77. The New Jersey Supreme Court found all

of Marshall’s claims to be without merit. The District Court

did not find the New Jersey Supreme Court’s conclusions

unreasonable under AEDPA, but Marshall contends that it

merely agreed, "in summary fashion," with the conclusions

of the New Jersey Supreme Court. App. Br. at 100-01.

Actually, as discussed below, most of the New Jersey

Supreme Court’s conclusions were based on a finding that

Marshall could not demonstrate prejudice. The District

Court instead concluded that Marshall had not established

that the performance of his attorney was deficient:

In hindsight, petitioner has compiled a long list of

alleged errors and mistakes his counsel committed

during his trial. The Court does not imply that defense

counsel made no errors whatsoever, but that his

performance was well within the required reasonable

standard and his litigation strategy was based upon

reasonable professional judgment.

Marshall III, 103 F. Supp. 2d at 790.

The nine areas of alleged ineffectiveness raised before us

by Marshall are:

1. Counsel did not develop or present any defense to

counter the State’s contention that the murder was

financially motivated. App. Br. at 104-07.

71

2. Counsel did not develop or present evidence to refute

much of the State’s circumstantial evidence about the

events the night of the murder. App. Br. at 107-11.

3. Counsel did not provide independent evidence to

refute McKinnon’s testimony. App. Br. at 111.

4. Counsel did not present evidence to refute the State’s

allegations that Marshall’s attempted suicide was staged.

App. Br. at 111-13.

5. Counsel did not present evidence to counter the

"prosecutor’s theatrics [which] were sensational, shocking,

and quite effective." App. Br. at 113-15.

6. Counsel did not present the evidence that his own

testimony -- at a limited PCR hearing -- cited as his

primary trial strategy: character evidence. App. Br. at 115-

16.

7. Counsel had no coherent defense theory. App. Br. at

116-17.

8. Counsel did not present other evidence that was

within his possession. App. Br. at 118-20.

9. Counsel did not object nor seek curative action when

inadmissible testimony was admitted, or when the

prosecutor engaged in misconduct. He also put "irrelevant,

prejudicial facts before the jury." App. Br. at 120-23.

Under Strickland, courts are precluded from finding that

counsel was ineffective unless they find both that counsel’s

performance fell below an objectively unreasonable

standard, and that the defendant was prejudiced by that

performance. Strickland, 466 U.S. at 687. In order to

establish prejudice, a defendant need not demonstrate that

the outcome of the proceeding would have been different,

but only that there is a "reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

prob

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