Opposition Brief — Beard v. Laird

NO. 05-514

IN THE SUPREME COURT OF THE UNITED STATES

JEFFREY A. BEARD,

Petitioner,

RICHARD LAIRD,

Respondent

On Petition for Writ of Certiorar to the

United States Court of Appeals for the Third Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

BILLY H. NOLAS, ESO

ANGELA ELLEMAN, ESO

DAVID WYCOFF, ESO

Assistant Federal Defenders

MAUREEN KEARNEY ROWLEY, ESO

Chef Federal Defender

Federal Community Defender Office for the

Eastern District of Pennsylvania

The Curtis Center — Suite 545 West

Independence Square West

Philadelphia, PA 19106

(215) 928-0520

Counsel for Respondent, Richard Laird

Dated: December 14, 2005

RECEIVED

DEC 16 2005

OFFICE OF THE

SUPREME count us

COUNTER-STATEMENT OF THE QUESTION PRESENTED

Should this Court grant certiorari in order to review the lower court’s routine application of

well-established law to the facts of this case?

TABLE OF CONTENTS

COUNTER-STATEMENT OF THE QUESTION PRESENTED

rABLE OF CONTENTS

TABLE OF AUTHORITIES

COUNTER-STATEMENT OF THE CASI

A. Relevant Pennsylvama and Due Process Law

B. State Court Proceedings

= Federal Court Proceedings

] District Court

2 Third Circuit

REASONS FOR DENYING THE WRIT

THIS COURT SHOULD DENY CERTIORARI BECAUSE THE COMMONWEALTH’S ONLY

QUARREL IS WITH THE THIRD CIRCUIT'S APPLICATION OF A PROPERLY

STATED RULE OF LAW 10 THE FACTS OF THIS CASI ‘

CONCLUSION ..... 17

TABLE OF AUTHORITIES

FEDERAL CASES

Anderson v. Penn Hall Co., 47 F. Supp. 691 (M.D. Pa. 1942)

Califorma, 494 U.S. 370 (1990)

jrecht v. Abrahamson, 507 U.S. 619 (1993) . 5, 6, 8, 10

Califorma vy. Roy, 519 U.S. 2 (1996) a 8, 10

Chapman vy. Califorma, 386 U.S. 18 (1967)

Estelle vy. McGuire, 502 U.S. 62 (19975

Everett v. Beard, 290 F.3d 500 (3d Cir. 2002)

is v. Franklin, 471 U.S. 307 (1985)

Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S. 251 (1916)

Kotteakos v. United States, 328 U.S. 750 (1946)

Laird v. Horn, 414 F.3d 419 (3d Cir. 2005)

O'Neal v. McAninch, 513 U.S. 432 (1995)

Smith v. Horm, 120 F.3d 400 (3d Cir. 1997)

Witt v. Alaska, 451 U.S. 259 (1981)

In re Winship, 397 U.S. 358 (1970)

STATE CASES

Commonwealth v. Baskerville, 681 A.2d 195 (Pa.Super. 1996)

Commonwealth v. Chester, 733 A.2d 1242 (Pa. 1999)

Commonwealth v. Cohen, 605 A.2d 1212 (Pa. 1992)

Commonwealth v. Davis, 704 A.2d 650 (Pa.Super. 1997)

Commonwealth v. Flaherty, 25 Pa. Super. 490, 1904 WL 3461 (1904)

Commonwealth v. Grosso, 162 A.2d 421 (Pa.Super.), aff'd, 165 A.2d 73 (Pa. 1960)

Commonwealth v. Hartley, 89 Pa. Super. 230, 1926 WL 4401 (1926)

Commonwealth v Huffman, 638 A.2d 961 (Pa. 1994)

Commonwealth v. Johnson, 719 A.2d 778 (Pa.Super. 1998)

Commonweaith v. Wanamaker, 444 A.2d 1176 (Pa.Super. 1982)

Drum v. Shaul! Equipment & Supply Co., 760 A.2d 5 (Pa.Super. 2000)

Fnedman v. Raloh Brothers, 171 A. 900 (Pa. 1934)

avranek vy. Pittsburgh, 25 A.2d 703 (Pa. 1942) .....

Henning v. Keiper, 37 Pa. Super. 488, 1908 WL 3837 (1908)

Kramer vy. Kister, 40 A. 1008 (Pa. 1898)

Kreider v. Wellenbach, 619 A.2d 319 (Pa.Super. 1993)

Murphy v. Wolverine Express, Inc., 38 A.2d 51' (Pa.Super. 1944)

Pittsburgh v. Dinardo, 189 A.2d 886 (Pa. 1963)

ttmund v. Pennsylvania R. Co.. 74 A. 341 (Pa. 1909)

. Jamison, 89 Pa. Super. 99, 1926 WL 4377 (1926)

Wellitz v. Thomas, 185 A. 864 (Pa.Super. 1936)

For the reasons stated below, this Court should deny the petition for writ of certiorari, which

does not present any important federal question but, instead, merely asks this Court to review the

lower courts’ application of well-established law to the facts of this case.'

OPINIONS BELOW

The Pennsylvania Supreme Court’s direct appeal opinion is Commonwealth v. Laird, 587

A.2d 1367 (Pa. 1991) (“Laird-1”). The Pennsylvania Supreme Court’s post-conviction appeal

opinion is Commonwealth v. Laird, 726 A.2d 346 (Pa. 1999) (“Laird-2”). The District Court's

opinion, granting habeas relief, is Laird v. Horn, 159 F.Supp.2d 58 (E.D. Pa. 2001) (“Laird-3”’). The

Court of Appeals’ opinion, unanimously affirming the District Court, is Laird v. Horn, 414 F.3d 419

(3d Cir. 2005) (“Laird-4”). The Commonwealth did not seek rehearing.’

COUNTER-STATEMENT OF THE CASE

A. Relevant Pennsylvania and Due Process Law: The key element of first-degree

murder in Pennsylvania — distinguishing it from second- and third-degree murder — is “specific intent

to kill.” In a homicide trial, if the jury finds beyond a reasonable doubt that the defendant had

specific intent to kill, then it should convict him of first-degree murder. If the jury does not find

beyond a reasonable doubt that the defendant had specific intent to kill, then it should convict him,

at most, of second- or third-degree murder. See 18 Pa.C.S. §§ 306(d), 2502; Commonwealth y

Smith vy. Horn, 120 F.3d 400, 410 (3d Cir. 1997); Laird-3 at 81-82; Laird-4 at 422 n.3, 425-26. Jury

instructions that allow co-conspirator or accomplice liability for first-degree murder, without also

‘The petition for writ of certiorari is cited herein as “Petition.” Petitioner is referred to as

“the Commonwealth.” The Commonwealth has filed an Appendix, which is cited herein as “App.”

followed by the page number. All emphasis herein is supplied unless otherwise indicated. Parallel

citations are omitted.

*The mandate issued on August 10, 2005. On August 12, 2005, the Commonwealth filed a

motion to recall the mandate and to stay re-issuance of the mandate pending this Court’s disposition

on certiorari. On October 25, 2005, the Third Circuit denied the Commonwealth’s motion.

requiring a finding beyond a reasonable doubt that the defendant had a specific intent to kill, relieve

the Commonwealth of its burden of proving every element of first-degree murder beyond a

reasonable doubt and, thus, violate Pennsylvania law and due process under the federal constitutional

principles of In re Winship, 397 U.S. 358 (1970), and its progeny. See Commonwealth v. Huffman;

Everett v. Beard; Smith v. Horn; Laird-3 at 82-85; Laird-4 at 425-26

B. State Court Proceedings: Mr. Laird was tried, along with co-defendant Frank

Chester, on charges arising from the death of Anthony Milano. The Commonwealth's evidence

established that both defendants were present when Mr. Milano was killed, but did not establish

which defendant actually was responsible for the killing. Both defendants, Mr. Laird and Mr

Chester, testified at tral. They both admitted that they left the bar with Mr. Milano, and were

present when he was killed. Each claimed, however, that he did not kill or intend to kill. Each

claimed the other was the killer. Thus, the jury’s determination of guilt for first-degree murder

should have been a matter of judging the credibility of the two defendants — if the jury believed Mr

Laird, it should have convicted Mr. Chester of first-degree murder and Mr. Laird of no more than

second- or third-degree murder, if the jury believed Mr. Chester, it should have convicted Mr. Laird

of first-degree murder and Mr. Chester of no more than second- or third-degree murder. See Laird-4

at 421-22, 426, 429

However, as the Pennsylvania Supreme Court, the District Court and the Third Circuit ali

found, the jury instructions relieved the jurors of the need to make this critical determination — the

jury was instructed that if either Mr. Laird or Mr. Chester had specific intent to kill, then both should

be convicted of first-degree murder. The instructions thus violated Mr. Laird’s due process rights

under In re Winship and its progeny, by relieving the Commonwealth of its burden of proving that

Mr. Laird possessed the specific intent to kill, the key element of first-degree murder. See Laird-3

at 81-85; Laird-4 at 425-30

Mr. Laird exhausted this constitutional challenge to the jury mstructions in the state courts

but they denied relief. As the District Court and Third Circuit noted, the state courts treated this

claim oddly, with implications for federal habeas review. See Laird-3 at 80; Laird-4 at 422-23.

The state court direct appeals of Mr. Laird and Mr. Chester were consolidated, but they filed

separate briefs. Some claims were raised by both of them, other claims were raised by one and not

the other. In particular, Mr. Chester, but not Mr. Laird, asserted that trial counsel was ineffective

for failing to raise the due process challenge to the jury instructions. See Laird-] at 1384. The

Pennsylvania Supreme Court reyected Mr. Chester's ineffectiveness claim because “the tral court,

n explaining the requirements for first degree murder instructed the jury that specific intent to

t be found.” Laird-1 at 1385.’

\claim or the ineffectiMgpess claim. The Pennsylvania Supreme Court, however, denied Mr. Laird’s

‘

\

due process and ineffecti®gness claims as “previously litigated,” saying: “This issue was presented

on dikect appeal as an allegatid&of ineffectiveness of trial counsel for failure to object to the charge,”

i.e, the\court held that Mr. Ches&’s raising an ineffectiveness claim on direct appeal made Mr

‘

Laird’s due process and ineffectivend\s claims “previously litigated.” Laird-2 at 354

As the District Court and Third Ci&cuit found, see Laird-3 at 80-81; Laird-4 at 422-25, this

was a strange, ynprecedented use of “previusly litigated.” If Mr. Laird had challenged the

\

instructions on din appeal, then Mr. Laird’s p&gt-conviction claims might properly be deemed

“previously litigated. \ But Mr. Laird had not challengXq the instructions on direct appeal - only Mr

\

Chester had. There is Ao other Pennsylvania case thaNgeems a defendant's claim “previously

‘The state court thus tgnored the real issue. It is undisp\jed that the instructions required

“that specific intent to kill be found.” The problem is that theyAgllowed both defendants to be

convicted of first-degree murde\based on the specific intent of onRyone defendant. Because the

state court later corrected this glaking error and found that the insiruc&gns do violate due process

(see infra), we do not belabor this. \

litigated” because it was previously raised by a co-defendant. In fact, Laird-2’s “previously litigated”

ruling on this issue is inconsistent with the court’s ruling on another issue that was raised on direct

appeal by Mr. Chester, but not Mr. Laird. With respect to that issue, Laird-2 held, correctly, that Mr.

Chester’s having raised the claim did not make it “previously litigated” for Mr. Laird. See Laird-2

at 354-55 (“The Commonwealth responds that the issue has been finally litigated .... However, ..

only co-defendant Chester raised this issue, it has not been finally litigated by [Laird].’’).

The Pennsylvania Supreme Court then decided Mr. Chester’s post-conviction appeal, which

was litigated separately from Mr. Laird’s. Mr. Chester raised the jury instruction error/due process

claim, and the Pennsylvania Supreme Court said it was “previously litigated.” Commonwealth v.

Chester, 733 A.2d 1242, 1253 (Pa. 1999) (“Chester-2”). But the Pennsylvania Supreme Court also

held in Chester-2 that it had erred in its direct appeal ruling, and that the instructions given in this

case did violate due process and Pennsylvania law because they relieved the Commonwealth of its

burden of proving that each defendant, not just an accomplice, had specific intent to kill. See

Chester-2 at 1253 n.12 (citing Commonwealth v. Huffman, supra). The Pennsylvania Supreme

Court nevertheless denied relief to Mr. Chester, saying that “prejudice” was not established for an

ineffective assistance of counsel claim. Id,

Cc, Federal Court Proceedings: After exhausting state remedies, Mr. Laird filed a

petition for writ of habeas corpus in the District Court raising the due process claim and several other

constitutional challenges to his conviction and death sentence.

1. District Court: After carefully considering the Pennsylvania Supreme Court’s

strange treatment of Mr. Laird’s due process claim, the District Court held that there ts no state court

“decision” on the merits of that claim within the meaning of 28 U.S.C. § 2254(d). Thus, habeas

review of the due process claim is the same de novo review that applied before AEDPA. See Laird-3

at 81. The Third Circuit agreed that de novo review is appropriate here. See Laird-4 at 423-25.

The Commonwealth does not ask this Court to review the holding that the due process claim

should be reviewed de novo. See Petition at i (question presented seeks de novo review of

constitutional error). That holding is not challenged.”

The District Court also found that there was no adequate and independent state ground

barring federal merits review of Mr. Laird’s due process claim. See Laird-3 at 80-81. The Third

Circuit agreed. See Laird-4 at 425 (affirming the District Court's no-procedural-bar ruling for “the

reasons set forth by the district court in its well-reasoned opinion”)

The Commonwealth does noi ask this Court to review the holding that there is no procedural

default here. See Petition at i (question presented does not seek review of no-procedural-bar ruling)

That holding is not challenged.’

ilaving determined that the due process claim is not procedurally barred and is subject to de

novo review, the District Court described this Court's decisions regarding challenges to the

constitutionality of jury instructions

‘The Commonwealth's concession is appropriate, as this is a case where de novo review

plainly is required. As stated above, when Mr. Laird presented his due process claim to the state

court, in post-conviction, the state court declined to consider the due process claim Mr. Laird made

because it had decided Mr. Chester's ineffectiveness claim on direct appeal. Since the state court

never actually decided Mr. Laird’s due process claim, but decided only Mr. Chester's ineffectiveness

claim, there is no state court decision on Mr. Laird's due process claim. Even if the state court ruling

in Mr. Chester’s case is deemed a decision for Mr. Laird, it 1s not an adverse decision on Mr. Laird’s

due process claim — in Chester-2 the state court held that these instructions violate due process

Thus, there is no adverse state court decision on the existence vel non of constitutional error — the

state court held that ‘here is constitutional error here. Moreover, the state court never addressed

whether that constitutional error is harmless under either Chapman v. California, 386 U.S. 18 (1967)

or Brecht v. Abrahamson, 507 U.S. 6'* (1993), ruling instead that it did not establish “prejudice”

for an ineffective assistance of counse. claim

*The Commonwealth's concession is appropriate. The no-procedural-bar ruling plainly is

correct, as the Pennsylvania Supreme Court's “previously litigated” ruling is not an adequate and

independent state ground. The state court applied the “previously litigated” rule to this claim im a

way that was utterly inconsistent with the way the rule has been applied in any other case, and even

inconsistent with the way it was applied to other claims in this case. Moreover, use of the

“previously litigated” concept to bar merits review of claims in a capital case was not “firmly

established and regularly followed at the time the [purported] default occurred,” because the

Pennsylvania Supreme Court applied a special no-waiver rule in capital cases. See Laird-3 at 73-75;

Laird-4 at 425 & n.7

In evaluating a jury instruction, the Court’s analysis “must focus initially on the

specific language challenged.” Francis v. Franklin, 471 U.S. 307, 315 (1985). The

Court then considers the allegedly constitutionally infirm language in the context of

the jury charge as a whole. Estelle v. McGuire, 502 U.S. 62, 72 (1991). The central

inquiry is “whether there is a reasonable likelihood that the jury has applied the

challenged instruction in a way’ that violates the Constitution.” Estelle, 502 US. at

72 (quoting Boyde v. California, 494 U.S. 370, 380 (1990))

Laird-3 at 83 (some citations and quotation marks omitted)

The District Court then applied this Court's law to the jury imstructions im this case

Upon reviewing the jury instructions in their entirety, the Court concludes that there

is a reasonable likelihood that the jury applied the court's instructions in a way that

relieved the prosecution of establishing beyond a reasonable doubt that Laird

individually harbored a specific intent to kill Milano

Laird-3 at 84. Thus, the District Court found, the instructions violated due process under In re

Winship and its progeny. S<e id. at 84-85

The District Court then performed the harmless error analysis this Court requires in habeas

cases, which considers whether the constitutional error “had substantial and imjurious effect or

influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The District Court concluded

“Upon a review of the record, it cannot be said that the error had no substantial and injurious effect

or influence on the jury's verdict.” Laird-3 at 85 (quotation marks omitted)

Having found that the jury instructions violated due process by relieving the Commonwealth

of its burden of proving every clement of first-degree murder beyond a reasonable doubt, and that

this constitutional error was not harmless, the Distnct Court granted habeas relief from the first

degree murder conviction. The Commonwealth appealed to the Third Circuit

2. Third Circuit: As stated above, the Third Circuit agreed with the District

Court's “well-reasoned opimon” that the due process claim is not procedurally barred, and that

habeas review of that claim is de novo, see Laird-4 at 423-25, and the Commonwealth does not seek

this Court's review of those rulings

The Third Circuit also agreed with the District Court’s “extremely thorough, comprehensive,

and well-reasoned opinion” finding that the jury instructions violated due process by relieving the

Commonwealth of its burden of proving every element of first-degree murder beyond a reasonable

doubt, and that the constitutional error was not harmiess. Laird-4 at 421

The Third Circuit, like the District Court, first described Mr. Laird’s due process claim:

In In re Winship, 397 U.S. 358 (1970), the Supreme Court held that due process

“protects the accused against conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime with which he is charged.” Id.

at 364. Laird argues that the jury instructions pertaining to accomplice liability for

first-degree murder relieved the Commonwealth of its burden of proving beyond a

reasonable doubt that he intended to kill Milano.

Laird-4 at 425

The Third Circuit, like the District Court, then cogently summarized this Court’s precedent

regarding challenges to the constitutionality of jury instructions

On habeas review, we must analyze the challenged portions of the jury instruction in

context with the entire charge and determine “whether there is a reasonable

likelihood that the jury has applied the challenged instructions in a way that violates

the Constitution.”

Laird-4 at 425-26 (quoting Smith v. Hom, 120 F.3d 400, 411 (3d Cir. 1997) (quoting and citing,

inter alia, Estelle v. McGuire, 502 U.S. 62, 72 (1991); Boyde vy. California, 494 U.S. 370, 380

(1990), Francis v. Franklin, 471 U.S. 307, 315 (1985))) (emphasis in Laird-4)

The Third Circuit, like the Distnct Court, then painstakingly reviewed the instructions as a

whole, and concluded that the instructions violated due process because it was reasonably likely that

the jury applied them in a way that relieved the Commonwealth of its burden of proving beyond a

reasonable doubt that Mr. Laird possessed a specific intent to kill, an element of the offense of first-

degree murder. See Laird-4 at 426-28

The Third Circuit, like the District Court, recognized that the finding of a due process

violation “does not ... end our enquiry. We must still determine if the error was harmless.” Laird-4

at 428. The Third Circuit set forth this Court's harmless error law in the habeas context

In determining whether this error was harmless, we must examine whether it “had a

‘substantial and injurious effect or influence’ cn the verdict.” If our analysis causes ;

us “grave doubt” about the integrity of the verdict, it can not be deemed harmless,

and Laird is entitled to relief.

Laird-4 at 428 (citations omitted) (quoting Smith, 120 F.3d at 418 (quoting and citing California v,

Roy, 519 U.S. 2 (1996) (per curiam); O’Neal_ v. McAninch, 513 U.S. 432 (1995); Brecht v.

Abrahamson, 507 U.S. 619 (1993))). The Third Circuit then carefully examined the record and the

Commonwealth's arguments, and found that the error was not harmless. See Laird-4 at 428-30.

Having found that the jury instructions violated due process by relieving the Commonwealth

of its burden of proving every element of first-degree murder beyond a reasonable doubt, and that

this constitutional error was not harmless, the Third Circuit affirmed the District Court’s grant of

habeas relief from the first-degree murder conviction. See Laird-4 at 430.

REASONS FOR DENYING THE WRIT

THIS COURT SHOULD DENY CERTIORARI BECAUSE THE COMMONWEALTH’S

ONLY QUARREL IS WITH THE THIRD CIRCUIT’S APPLICATION OF A PROPERLY

STATED RULE OF LAW TO THE FACTS OF THIS CASE.

A writ of certiorari is “granted only for compe!ling reasons.” Supreme Court Rule 10. This

Court's certiorari jurisdiction is “exercised sparingly, and only in cases of peculiar gravity and

general importance.” ilton-Brow v. W , 240 U.S. 251, 258 (1916).

In particular, this Court does not grant the writ simply to correct purported error by the lower court,

which is what the Commonwealth asks this Court to do here. See Watt v. Alaska, 451 U.S. 259, 275

n.5 (1981) (Stevens, J., concurring) (“certioran jurisdiction is designed to serve purposes broader

than the correction of error in particular cases’); R. Stern, E. Gressman & S. Shapiro, SUPREME

COURT PRACTICE 190-91 (6th ed. 1985) (same).

A. The District Court and Third Circuit, after carefully considering the Pennsylvania

Supreme Court's treatment of this claim, determined that: (1) there is no adequate state ground

barring federal merits review; and (2) habeas review is de novo, rather than through the lens of 28

U.S.C. § 2254(d). See Counter-Statement of the Case § C. The Commonwealth does not seek this

8

Court's review of those determinations

B. The District Court and Third Circuit accurately identified and described this Court's

due process law. See Counter-Statement of the Case § C. The Commonwealth does not seek review

of the lower courts’ understanding of this Court's due process decisions

Cc, The District Court and Third Circuit accurately identified and described this Court's

law for evaluating the constitutionality of jury instructions — ¢.g., Estelle vy. McGuire, 502 U.S. 62

(19%1); Boyde v. Califormia, 494 U.S. 370, 380 (1990); Francis v. Franklin, 471 U.S. 307 (1985)

which requires the reviewing court to consider the “constitutionally infirm language” in the context

of the jury charge as a whole and determine if there is a “reasonable likelihood” that the jury has

applied the challenged instruction in a way that violates the Constitution. See Counter-Statement

of the Case § C. The District Court and Third Circuit found that the instructions as a whole created

a reasonable likelihood that the jury applied those instructions in a way that violated due process.

The Commonwealth's certiorari petition admits that the instructions given here contained

“constitutionally infirm language.” See Petition at i (question presented admits that jury was given

an “ailing accomplice liability instruction”)

The Pennsylvania Supreme Court found that the instructions given here relieved the

Commonwealth of its burden of proving every element of the offense beyond a reasonable doubt

See Counter-Statement of the Case § B.°

The Commonwealth's quarrel with the District Court and Third Circuit, then, seems to be

about whether the instructions “as a whole” adequately cured the instructional infirmity that the state

and federal courts found and that the Commonwealth admits exists. The Pennsylvania Supreme

Court did not believe there was such a cure, and the District Court and Third Circuit reviewed the

*When the Commonwealth attempted to defend the instructions in the lower court, the Third

Circurt noted that, “| z)jiven [the Pennsylvania Supreme] Court's recognition of the obvious problems

with this charge, the Commonwealth's rather obstinate defense of the instruction is perplexing.”

Laird-4 at 424 n.6

instructions as a whole and found a reasonable likelihood that the jury understood those instructions

as a whole in a way that violates due process. Thus, even if viewed tn the light most favorable to

the Commonwealth, the “asserted error consists of ... the misapplication of a properly stated rule of

law” to the facts of this case, which ts not a reason to grant certiorari. Supreme Court Rule 10

Moreover, the Commonwealth's argument is baseless. The Commonwealth sifts through the

jury charge searching for nuggets that suggest a specific intent requirement. Ironically, the

Commonwealth thus ignores the very principle that it espouses — that jury instructions must be

viewed as a whole. The presence of passages that may correctly state the law does not negate the

reasonable likelihood that the jury unconstitutionally applied the instructions unless the court

corrects the erroneous parts of the instructions. See Francis, 471 U.S. at 322 (“Language that merely

contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the

infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the

jurors applied in reaching their verdict.”). The District Court and Third Circuit, applying this Court’s

settled law, recognized this and found a due process violation. See Lairc-3 at 83; Laird-4 at 425-26.

D. The District Court and Third Circuit accurately set forth this Court’s harmless error

law, as it applies in the habeas context, e.g., California v. Roy, 519 U.S. 2 (1996) (per curiam);

©’ Neal v. McAninch, 513 U.S. 432 (1995), Brecht v. Abrahamson, 507 U.S. 619(1993); Kotteakos

v. United States, 328 U.S. 750 (1946); applied that law to the facts of this case; and found that the

error is not harmless. See Counter-Statement of the Case § C. The Commonwealth dislikes the

outcome but, again, the “asserted error consists of ... the misapplication of a properly stated rule of

law,” which ts not grounds for granting certiorari, Supreme Court Rule 10, especially for a fact-

intensive matter like harmless errer review

Moreover, the Commonwealth's harmless error argument ts baseless. This case ts a text-

book example of error that is nor harmless. Here, where the evidence suggested that both defendants

were involved in some type of wrongdoing, both defendants testified, both defendants admitted they

were present during the offense, both defendants claimed no intent to kill, both defendants claimed

that the other was the killer, efc., the jury should have been faced with the difficult task of making

credibility determinations and deciding beyond a reasonable doubt whether Mr. Laird, Mr. Chester,

both or neither had specific intent to kill. Instead, the jury instructions unconstitutionally relieved

the jurors of this difficult task and gave them an easy way out — convict both defendants of first-

ea

’

degree murder if you think either had specific intent. Under the circumstances of this case,

considering the entire record, this constitutional error is not harmless.

While this case plainly is not worthy of this Court’s review, we feel compelled to point out

the misunderstanding of the record upon which the Commonwealth bases some of its harmless error

argument. The Commonwealth says Mr. Laird was convicted of conspiracy to commit first-degree

murder, and says this shows that the jury necessarily found that he had a specific intent to kill. See

Petition at 19-20. As the Third Circuit found, see Laird-4 at 428, the Commonwealth’s claim is

contrary to the record. Mr. Laird was not convicted of conspiracy to commit first-degree murder.

Instead, he was convicted of conspiracy to commit murder generally.

The jury was not even instructed cn conspiracy to commit first-degree murder. Instead, the

instructions were for conspiracy to commit murder generally. See NT 5/20/88 at 694-95 (“The

defendants are also charged ... with the offense of conspiracy to commit the crime of murder’). The

jury returned its verdict in open court, and convicted only of conspiracy to commit murder generally.

See NT 5/20/88 at 726, App. 18Za-183a (“Court Clerk: How say you with respect to the charge of

conspiracy to commit murder? Do you find the defendant guilty or not guilty? Jury Foreperson:

Guilty.”). This verdict of conspiracy to commit murder generally was confirmed by a jury poll. See

NT 5/20/88 at 729-30, App. 186a-187a. After the jury gave this verdict, the judge asked if there

were any objections and the Commonwealth approved the verdict as stated by the jury in open court.

See NT 5/20/88 at 730, App. 187a-188a. The court again asked the jurors if they agreed with the

verdict as stated; they all concurred; and the verdict was recorded. See NT 5/20/88 at 731, App.

188a. The conviction plainly was for conspiracy to commit murder generally, not conspiracy to

commit first-degree murder

There is a significant difference between what the Commonwealth says Mr. Laird was

convicted of (conspiracy to commit first-degree murder) and what he actually was convicted of

(conspiracy to commit murder). This difference is significant because “conspirac y to commit murder

includes conspiracy to commit third-degree murder,” which does not require specific intent to kill

but, instead, may be found when the defendant has “an intention merely to inflict gnevous bo jily

Thus, the conspiracy to commit murder conviction shows, at most, that the jury believed Mr. Laird

agreed to “inflict grievous bodily harm.” The facts at trial are consistent with such a verdict — ¢.g.,

the odd, drink-induced behavior of Mr. Laird and Mr. Chester at the bar; the fact that the defendants

and Mr. Milano left the bar together in one car, the conflicting testimony of the co-defendants about

what happened at the scene; and so on. The verdict does not show that the jury found beyond a

reasonable doubt that Mr. Laird had specific intent to kill

The Commonwealth gives two purported bases for its claim that Mr. Laird was convicted of

conspiracy to commit first-degree murder, despite the record's clear showing to the contrary

’See also id., 605 A.2d at 1214, 1216 (defendant convicted of third-degree murder and

conspiracy to commit murder where the “Commonwealth presented three co-conspirator witnesses

who testified that Cohen solicited them and paid them $700 to kill the victim,” and defendant

“testified that he sought the help of the co-conspirators to scare the victim, and that he paid them

$700 to do so,” but “maintained that he only wanted [the victim) ‘shoved around’ or ‘messed up"”),

Commonwealth v. Wanamaker, 444 A.2d 1176, 1178 (Pa.Super. 1982) (“conspiracy to commit

murder” when defendant agrees to actions that show “a conscious disregard of a great msk that Lie

might have inflicted death or serious bodily harm”); Commonwealth v. Johnson, 719 A.2d 778, 781,

785-86 (Pa.Super. 1998) (conspiracy to commit third-degree murder where defendant supplied

baseball bats, talked about smashing people's heads into street curbs and participated in one beating),

Commonwealth v. Davis, 704 A.2d 650(Pa. Super. 1997) (conspiracy to commiut third-degree murder

where defendant and others conducted “brutal attack” with baseball! bats); Commonwealth vy.

Baskerville, 681 A.2d 195, 201 (Pa.Super. 1996) (conspiracy to commit third-degree murder where

victim was shot; “despite the fact that an individual co-conspirator did not contemplate to kill, where

a killing is a natural and probable consequence of a co-conspirator’s conduct, murder is not beyond

the scope of the conspiracy’’)

12

First, the Commonwealth claims that “it is a legal impossibility in Pennsylvania to be

convicted on conspiracy to commit ... murder in the third degree.” Petition at 20. But, as the above-

cited cases show, Pennsylvania does recognize conspiracy to commit third-degree murder - e.g.,

when one agrees to “inflict grievous bodily harm,” but not to kill

Second, the Commonwealth has submitted four handwritten sheets of paper to the Court,

App. 189a-192a, based upon which it makes an extraordinary claim. The Commonwealth says these

sheets of paper are a “charge sheet that went out to the jury.” Petition at 19. The Commonwealth

says that a letter “G”" marked on this so-called “charge sheet” shows that the jury did not really

convict Mr. Laird of conspiracy to commit murder generally — the verdict that the jury announced

in open court, that the jurors affirmed in individual polling, that the prosecutor agreed to and that was

recorded. The Commonwealth says these papers show that the jury rea/ly convicted Mr. Laird of

a different offense — conspiracy to commit first-degree murder. See Petition at 19-20. This is utterly

baseless

The Commonwealth proffered this so-called “charge sheet” for the first time afier the Third

Circuit had already heard oral argument in this case. The case was argued and submitted for

decision on September 28, 2004. Eight months later, on May 23, 2005, the Commonwealth sought

leave to file a “supplemental appendix” containing this so-called “charge sheet.” The

Commonwealth had never before mentioned this so-called “charge sheet,” and had never before

attempted to make it part of the record. On July 19, 2005, the Third Circuit denied the

Commonwealth's motion for leave to file the “supplemental appendix” containing this so-called

“charge sheet.” The Commonwealth did not seek rehearing of the Third Circuit’s order and does not

challenge the propriety of that order in its certiorari petition.” Thus, the so-called “charge sheet” is

not part of the record in this case, and is not properly before this Court.

‘Given the lateness of the Commonwealth’s submission and the other matters described

below, it plainly was correct for the Third Circuit to deny the Commonwealth's motion for leave to

file the so-called “charge sheet.”

i3

Even if the so-called “charge sheet” were part of the record, the Commonwealth 's arguments

about it are baseless (so baseless, in fact, that we were surprised to see the Commonwealth make

them here). There is no evidence whatsoever that the papers submitted by the Commonwealth

actually are a “charge sheet” that went out with the jury in this case. Even if it is assumed that they

are, there is no evidence that the “G”"s on those papers were written by anyone on the jury — the

papers are not signed or labeled in any way that suggests who wrote the “G’’s.

Even if it is assumed, with no evidence, that the papers submitted by the Commonwealth

were a “charge sheet” and that the “G"’s on those papers were written by someone on the jury, there

is noOreason to believe that the “G"’s were written as a sign that the jury unanimously found guilt by

proof beyond a reasonable doubt — e.g., the papers do not say that “G” means guilty beyond a

ae are they do not say the “G’’s are intended to be anything other than doodles; they do

not say that avery juror agreed that the charge was proved beyond a reasonable doubt; they do not

say anything like “We, the jury do hereby find”; they do not say the “G”"’s were written at the end of

deliberations; they\are not signed by anyone, let alone all the jurors.

If we assume for the sake of argument that “G” means guilty beyond a reasonable doubt, the

papers submitted by the ommonwealth are facially inconsistent with the jury’s actual verdict as

announced in open court (even aside from the inconsistency regarding conspiracy to commit murder)

the Commonwealth’s papet¥ do not have any “G’s on the list of homicide charges against Mr.

Chester, but the jury convicted Mr. Chester of first-, second- and third-degree murder, see NT-

5/20/88 at 723, App. 178a-179a; thaCommonwealth’s papers do not have any “G’”’s on the second-

and third-degree murder charges against Mr. Laird, but the jury convicted Mr. Laird of second- and

third-degree murder, see NT-5/20/88 at 746, App. 182a. The papers on their face thus show that they

do not reflect the jury's actual verdict. \Indged, if the Commonwealth takes its current argument

seriously, it should demand the immediate\release of Mr. Chester who, according to the

Commonwealth's current argument, really was acquitted of all homicide charges. Needless to say,

in Mr. Chester’s case, the Commonwealth is not making this “charge sheet” argument, but is relying

on the verdict stated in open court.

In short, there is no evidence that the papers submitted by the Commonwealth are an actual

“charge sheet” that actually reflects the jury’s verdict. The evidence is to the contrary.

Even if the Commonwealth had submitted an actual charge sheet it would not help the

Commonwealth, given the verdict that was delivered by the jury in open court, affirmed by the jury

poll, agreed to by the prosecutor himself, and then recorded.

Under Pennsylvania law, a party waives any claim that the verdict was actually different from

the verdict delivered by the jury in open court, unless that party objects to the verdict as stated by the

jury before it is recorded. See Havranek v. Pittsburgh, 25 A.2d 703, 705 (Pa. 1942); Friedman v.

Ralph Bros., 171 A. 900, 901 (Pa. 1934); Rottmund vy. Pennsylvania R. Co., 74 A. 341, 343-44 (Pa.

1909); Murphy v. Wolverine Express, Inc., 38 A.2d 511, 513 (Pa.Super. 1944); 10 STANDARD

PENNSYLVANIA PRACTICE 2d § 60:5. Here, the Commonwealth did not object to the jury’s stated

verdict before it was recorded; instead, the Commonwealth agreed that the verdict as stated by the

jury was proper. See NT 5/20/88 at 730, App. 188a. The Commonwealth cannot now impeach the

jury’s verdict by claiming that it was different from the verdict to which the Commonwealth agreed.

The Commonwealth's attempt to impeach the jury’s actual verdict also fails on its merits.

“Under Pennsylvania law, it is well settled that the only verdict is that which is announced orally in

court by the jury.” Drum v. Shaull Equipment & Supply Co., 760 A.2d 5, 11 (Pa.Super. 2000)

(quoting Barefoot v. Penn Central Transp. Co., 323 A.2d 271, 272 (Pa.Super. 1974)).’ In particular,

“the contents of a verdict slip have absolutely no bearing on the final verdict rendered by a jury.

* Accord Pittsburgh v. Dinardo, 189 A.2d 886, 887-88 (Pa. 1963); Havranek, 25 A.2d at 705;

Fricdman, 171 A. at 901; Eastley v. Glenn, 169 A. 433, 434 (Pa. 1933); Kramer v. Kister, 40 A.

1008, 1009 (Pa. 1898); Kreider v. Wellenbach, 619 A.2d 319, 321 (Pa.Super. 1993); Wellitz v.

Thomas, 185 A. 864, 865 (Pa.Super. 1936); 10 STANDARD PENNSYLVANIA PRACTICE 2d § 60:5

(“Only the oral verdict rendered in open court, when received and recorded, constitutes the valid and

legal verdict.”’); see also note 10, infra (citing other authorities).

15

The only verdict is the jury's oral pronouncement.” Kreider, 619 A.2d at 322 (citing Barefoot:

Oblon_v. Ludlow-Fourth Corp., 595 A.2d 62 (PaSuper. 1991)."° Here, “the jury’s oral

pronouncement” was guilty of conspiracy to commit murder generally, and any purported “charge

sheet” has “absolutely no bearing” on that verdict.

EF. In sum, the District Court and Third Circuit properly stated the law, applied it to the

facts, and rejected the Commonwealth's arguments. The Commonwealth dislikes the outcome, but

that is not grounds for granting certioran

"Accord Havranek, 25 A.2d at 705; Friedman, 171 A. at 901; Rottmund, 74 A. at 343

(“[ T]he jury ... announced their verdict orally ... and ... it was accepted by the court and recorded

It was wholly immaterial that the verdict rendered was not m accord with the written formula sent

out with the jury and returned by them. The verdict announced orally in court, accepted by it, and

entered on the minutes, and not that stated in the written formula, was the verdict of the jury. ... [T]he

verdict as recorded is the verdict of the jury, and ... the form prepared in the jury room, though

handed to the clerk, is no part of the record, and has no significance whatever. ... The verdict had

been entered on the record in proper form, ... and the pencil memorandum was without the slightest

legal significance.”); Wellitz, 185 A. at 865; Commonwealth v. Grosso, 162 A.2d 421, 428

(Pa.Super.) (“A written memorandum of findings of a jury, although filed and preserved, is not part

of the record. The only verdict is that which the jury announces orally and which ts received and

recorded as the jury's findings.”), aff'd, 165 A.2d 73 (Pa. 1960); Commonwealth v. Hartley, 89

Pa.Super. 230, 1926 WL 4401, *2 (1926) (“The real verdict in this case was the one announced

orally by the foreman in open court and not the [charge sheet] .... It has been repeatedly held that in

criminal as well as civil cases the ... the verdict so received and recorded, and not the written

memorandum of their finding, is the true verdict.”); Smith v. Jamison, 89 Pa.Super. 99, 1926 WL

4377, *5 (1926); Henning v. Keiper, 37 Pa.Super. 488, 1908 WL 3837, *2 (1908) (“Allusion is made

in the appellee's argument to the written memorandum of their finding brought into court by the jury,

but it is well settled ... that such paper, although filed and preserved, is no part of the record. The

only verdict is that which the jury announced orally and which alone ts received and recorded as the

jury's finding.”); Commonwealth v. Flaherty, 25 Pa.Super. 490, 1904 WL 3461, *3 (1904) (“The

form prepared in the jury room, or handed in the first instance to the clerk, has no significance

whatever and is no part of the record.”); Dinardo, 189 A.2d at 888 (same), Eastiey, 169 A. at 434

(same); Kramer, 40 A. at 1009-10 (same); Anderson v. Penn Hall Co., 47 F.Supp. 691, 692 (M_D.

Pa. 1942) (“It is well settled that the only verdict is that which the jury announces orally min Court and

which is received and recorded at the direction of the Court as the finding of the jury

[E)}xplanations or comments in a written verdict are no part of the verdict of the jury but are mere

surplusage.” (citations omitted)); 10 STANDARD PENNSYLVANIA PRACTICE 2d § 60:6 (“The oral

verdict returned by the jury to the court cannot be controlled by a verdict that is written in the jury

room and that is handed in at the same time. The paper returned by the jury has no significance as

the verdict.”).

16

CONCLUSION

\

For the reasons stated above, certiorari should be denied. \

\

Respectfully subrhitted,

b WW ae

BILLY H.1 seta

ANGELA ELLEMAN, €SQ

DAVID WYCOFF, ESQ)\,

Assistant Federal Defendeds

MAUREEN KEARNEY RQWLEY, ESQ.

Chief Federal Defender 3

Federal Community Defender Qffice for the

Eastern District of Pennsy!vani

The Curtis Center — Suite 545 Wekt

Independence Square West

Philadelphia, PA 19106

(215) 928-0520

Counsel for Respondent, Richard Laird

Dated: December 14, 2005

CERTIFICATE OF SERVICE

|, Billy H. Nolas, Esq., certify that on this 14th day of December, 2005, I have caused the foregoing

brief in opposition to be served by FIRST CLASS MAIL on the following person:

Diane E. Gibbons

Bucks County District Attorney

Bucks County Courthouse

Fourth Floor

55 East Court Street

Doylestown, PA 18901

(Counsel for Petitioner)

bi

Billy H Nolas, Esq.

Mi

B:

F

5f

D

|

|

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

William K. Suter

Clerk of the Court

October 20, 2005 en

. Diane E. Gibbons

cks County Courthouse

jurth Floor

East Court Street

yylestown, PA 18901

Re: Martin Horn, Commissioner, Pennsylvania Department of

Corrections, et al

v. Richard Laird

No. 05-514

Dear Ms. Gibbons:

The petition for a writ of certiorari in the above entitled case was filed on

October 17, 2005 and placed on the docket October 20, 2005 as No. 05-514

Enclosures

Forms are enclosed for notifying opposing counsel that the case was docketed

Sincere!v

William K. Suter, Clerk

by

Clayton Higgins

Case Analyst

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

William K. Suter

Clerk of the Court

202) 479-301

October 20, 2005

Clerk

United States Court of Appeals for the Third Circuit

601 Market Street, Room 21400

Philadelphia, PA 19106

Re: Martin Horn, Commissioner, Pennsylvania Department of

Corrections, et al

v. Richard Laird

No. 05-514

(Your No. 01-9012)

Dear Clerk

The petition for a writ of certiorari in the above entitled case was filed on

October 17, 2005 and placed on the docket October 20, 2005 as No. 05-514

Sincerely,

William K. Suter, Clerk

by

Clayton Higgins

Case Analyst